Abimbola V Abatan (2001)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Ibadan Division, which had on the 30th day of June, 1992 dismissed the appeal by the plaintiff from the decision of Ajileye, J. sitting at Ibadan in the High Court of Justice of Oyo State.

The plaintiff for himself and on behalf of the Abimbola family of Gbenla, Ibadan had instituted an action against the defendant for himself and on behalf of the Abatan family claiming as follows :-

“I. A declaration that the defendant as a Customary Tenant has forfeited on grounds of misconduct his right to occupy all that piece or parcel of land situate, lying and being at Abimbola’ s Compound, Gbenla area, Ibadan and more particularly described in a plan to be later filed in court.

2. Recovery of possession of the said land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. The plaintiff’s case as pleaded and testified to is that the land in dispute is part of a much larger portion of land first settled upon from time immemorial by one Abimbola, now deceased, the ancestor of the plaintiff. The land was granted to the said Abimbola by Oderinlo and the area thus granted is known as Abimbola compound. The defendant, who was in no way related to the Abimbola family, got into the land in dispute as a result of the marriage between Odeyale, Abimbola’s relation to the defendant’s junior sister, Ajayi. Thereafter, the Abimbola family at the request of Odeyale made a grant of the land in dispute to Abatan, his wife’s brother.

By paragraphs 11 and 12 of the statement of claim, the plaintiff averred as follows:

“11. Ajayi asked Odeyale to beg Abimbola to grant her senior brother, Abatan land as a customary tenant.

12. The land requested for was given to Abatan with the permission of the Abimbola family.”

Under cross-examination, however, the plaintiff testified thus:-

“The defendant built one house on the land in dispute. Other members of his family built 4 more houses. Neither the defendant nor the other members of his family pay tributes to me or my family on the land. The land to the defendant was an out and out grant.”

The plaintiff stated that the defendant had consistently challenged the title of his family to the land in dispute and claimed to be the original owner there of hence this action.

The defendant, on the other hand, claimed ownership of the land in dispute. His case was that the land in dispute formed part of a large track of land granted to the ancestor of his family, Durojaiye by Ogunmola about one hundred years ago. He testified that his said ancestor, Durojaiye, immigrated from Orile-Owu to Ibadan and settled at Oke Mapo. It was following a fire disaster at Oke Mapa that the place was abandoned and Ogunmola brought Durojaiye to the land in dispute and granted the same to him. Durojaiye family has since been exercising maximum acts of ownership over the said land in dispute known as and called Abatan compound. Members of the defendant’s family also erected several residential houses on the land. He denied that there was anyone called Ajayi in their family, who at any time married Odeyale as alleged by the plaintiff. Abatan was one of the great grand children of the said Durojaiye.

At the conclusion of hearing, the learned trial Judge, Ajileye, J. after a careful review of the evidence on the 11th day of December, 1984 found for the defendant and dismissed the plaintiffs claims. This, he did on the grounds of:

(i) Inconclusiveness of the traditional evidence of both parties at the trial in respect of their claim of title to the land in dispute.

(ii) Failure by the plaintiff to prove that the defendant’s ancestors were the customary tenants of the plaintiff and

(iii) That the acts of ownership proved by the defendant’s family were numerous and positive enough to warrant the inference that they are the owners of their own part of the land in dispute.

Dissatisfied with this judgment of the trial court, the plaintiff lodged an appeal against the same to the Court of Appeal, Ibadan Division. The Court of Appeal in a unanimous decision on the 30th day of June 1992, dismissed the appeal and affirmed the decision of the trial court. The plaintiff has now further appealed to this court.

Six grounds of appeal were filed by the plaintiff against this decision of the Court of Appeal. It is unnecessary to reproduce them in this judgment. It suffices to state that the parties pursuant to the Rules of this court filed and exchanged their written briefs of argument.

Four issues were identified in the appellant’s brief of argument as arising for determination in this appeal. These are set out as follows:

(i) Where there is a failure by the trial court to adopt the test in Kojo v. Bonsie 14 WACA 242 in resolving conflict in traditional evidence, what should be the attitude of the Court of Appeal.

(ii) Whether, having regard to the materials before the lower court the learned Justices of the Court of Appeal were right in failing to make a finding on the root of title relied upon by the parties.

(iii) Whether having regard to the evidence on the record the lower court was right in holding that the plaintiff /appellant failed to prove his case.

(iv) Having found the complaints of the appellant that the trial court raised and resolved some issues suo motu established, was the lower court right in holding that there was no miscarriage of justice notwithstanding that the trial court based its decision partly on those issues,”

The respondent on the other hand, submitted that the one issue for the determination of this court in this appeal is:

“Whether the Court of Appeal was right in dismissing the appellant’s case having regard to the evidence proffered in proof of the Plaintiff/Appellant’s case at the trial court.”

It is plain that the lone issue formulated by the respondent in his brief for the resolution of this appeal covers the same ground as issue 3 raised on behalf of the appellant. That issue, in effect poses the question whether the Court of Appeal was right in affirming the dismissal of the appellant’s suit by the learned trial Judge, having regard to the evidence before the trial court and the findings of that court thereupon.

It is crystal clear to me that the single issue formulated in the respondent’s brief is the main question that arises for determination in this appeal. I need, perhaps, observe, with due respect to learned Counsel for the appellant, that issue one raised in the appellant’s brief of argument can hardly pass as a competent issue. In my view, that issue is essentially a typical academic question which students of law may be confronted with in an examination and by no means wears any garb whatever resembling a properly formulated issue for the determination of an appeal. There is nothing for resolution by this court under the alleged issue, whether for or against either party and, at any rate, I cannot conceive that it is a question remotely relevant for the determination of the present appeal.

There is also issue 2 identified in the appellants’ brief. That primarily concerns the question of original title to the land in dispute. The plaintiffs claim against the defendant as per his writ of summons and statement of claim is for a declaration that the defendant as a customary tenant has, on grounds of misconduct, forfeited his right to occupy the land in issue and recovery of possession of the said land. It seems to me that the simple, straight forward and practically the main questions for determination in the case are whether or not the defendant is a customary tenant of the plaintiff in respect of the land in issue and, if the answer is in the affirmative” whether forfeiture of the tenancy on ground of his alleged misconduct and recovery of possession of the land may be ordered against him. It does not appear to me that ownership or original title to land must necessarily be established before a customary tenancy may be proved as it is not unknown under customary law for a tenant to create a sub-tenancy in respect of his holding. In my view, issues 2 and 4 as formulated in the appellant’s brief of argument cannot be said to be related to the real questions for resolution in this appeal. I therefore, propose in this judgment to adopt the sole issue formulated by the respondent in his brief of argument which is substantially the same with the appellant’s issue 3 for my determination of this appeal.

At the oral hearing of the appeal, learned leading counsel for the appellant, M.D. Belgore, Esq. adopted the appellant’s brief of argument together with his reply brief to the respondent’s brief of argument. He submitted that although the testimony of the plaintiff and his witnesses could not be said to be perfect, there was enough evidence to establish that the defendant is a customary tenant of the plaintiff/appellant. He referred to the evidence of the plaintiff, where he testified that Abatan family came on the land in dispute with the leave and licence of the Abimbola family. Learned counsel dealt extensively with the issue of proof of title to land in dispute. He contended that the ownership of the land was found in favour of the plaintiff/appellant by the trial court and that the court below was in error by not holding that the defendant’s ancestor was a customary tenant on the said land. He urged the court to allow this appeal.

Learned leading counsel for the respondent, Mr. A. Akintola, in his reply, similarly adopted the respondent’s brief of argument. In elaboration thereof, he stressed that there is no evidence whatsoever from the plaintiff to establish that the defendant/respondent’s ancestors were the customary tenants of the plaintiff/appellant in respect of the land in dispute. He submitted that the onus is on the plaintiff to prove his case and that this he failed to do. He pointed out that the contention by the learned appellant’s counsel that the ownership of the land was found in favour of the appellant cannot be correct as this is not borne out by the record. He referred to the evidence of P.W.3, P.W.7 and P.W.8 and submitted that these are at variance with the case of the plaintiff for whom they testified. He stressed that the plaintiff did not prove the customary tenancy he founded his case upon and he argued that on that ground alone, the plaintiff’s action was bound to fail. He finally pointed out that this appeal is caught by concurrent findings of fact of both courts below which are fully supported by the evidence. He argued that there is nothing perverse or patently erroneous about those findings. He cited a number of decided cases on the point and he urged the court to dismiss the appeal.

As I have already indicated, the relevant issue that arises for the determination of this court in this appeal – is whether the court below was right in affirming the dismissal of the plaintiff s suit by the trial court, having regard to the evidence and the findings of the court of first instance. This, in effect, is a resolution of the question whether or not on the evidence and the findings of both courts below, the defendant was established to be a customary tenant of the plaintiff in respect of the land in issue and, if the answer is in the affirmative, whether forfeiture of the customary tenancy and recovery of possession of the land may be ordered against the said defendant.

It is an elementary principle of law that in civil cases, the onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the remedy he claims. Plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case and if this onus is not discharged, the weakness of the defendant’s case may not help him and the proper judgment will be for the defendant. See Kodilinye v. Mbanefo Odu (1935) 2 W.A.C.A. 336 at 337; Frempong v. Brempong (1952) 14 WAC.A. 13; Woluchem v. Gudi (1981) 5 S.C. 291. This basic principle of law is however not applicable in cases where the defendant’s case itself supports that of the plaintiff and contains evidence on which the plaintiff is entitled to rely. See Josiah Akinola and another v. Fatoyinbo Oluwo and Others (1962) 1 SCNLR 352; (1962) 1 All N.L.R. (Pt. 2) 224 at 227; Oduaran and Others v. Asarah and others (1972) 1 All N.L.R. (Pt. 2) 137; M. O. Ibeziako v. Nwagbogu and Others (1972) 1 All N.L.R. (Pt. 2) 200.

I think I need to observe straight away that it was neither suggested by learned counsel for the plaintiff/appellant nor is there in fact evidence on record from the defendant/Respondent or any of his witnesses which tended to support the case of the plaintiff. It can thus be said that the facts of the present case do not fall within the exception to the said, general principle of law to the effect that the plaintiff, to succeed, must rely on the strength of his own case and not on the weakness of the defendant’s case. On the contrary, it is the finding of the trial court as affirmed by the court below that there exist various pieces of evidence from the plaintiff and a number of his witnesses, which directly supported the case of the defendant.

Now, dealing with the main issue of whether or not the defendant is a customary tenant of the plaintiff in respect of the land in dispute, the trial court noted the evidence of the plaintiff himself under cross-examination. This is to the effect, firstly, that neither the defendant nor the other members of his family paid tribute for the alleged customary tenancy and, secondly, that the grant of the land to the defendant was an “out and out grant”. There can be no doubt that payment of a tribute cannot be said to be a condition precedent to the creation of a valid tenancy under customary’ law. Non payment of tribute is therefore not inconsistent with the creation or existence of customary tenancy as such tenancy may quite properly be established, without the payment of tribute under customary law. See Lawani v. Adeniyi (1964) N.S.C.R. Vol. 3) 231 at 233; Audu Makinde and others v. Dawuda Akinwale and others (2000) 2 NWLR (Pt. 645) 435 etc. But it does clearly appear: however, that the aspect of the plaintiff s evidence that the alleged grant of the land in dispute by his family to the defendant’s family was an “out and out” grant seemed to suggest an absolute grant not limited by any conditions and certainly inconsistent with customary tenancy. In particular, the trial court referred to the evidence of PW7, Gabriel Okebukola, who claimed that he was living on the land in dispute. He stated:

“I live at E9/70A Gbenla, Abimbola compound Ibadan….I know the plaintiff and defendant. I have a building in Abimbola’s compound. The land (in dispute) is a family land and it jointly belongs to Abatan (i.e. defendant), Abimbola (i.e. plaintiff) and Daramola’s families. I am also a member of the family. I am entitled to the land as of right”.

Further reference was made by the trial court to the evidence of P.W.8, Murana Adigun, who also lived within the land in dispute which he called Abatan’s compound. He stated:

“I live at Abatan’s compound, Ibadan. I know the plaintiff as my boundary man. I have a house in the compound. I built it about 10 years ago…. I know the land in dispute. Abimbola’s (i.e plaintiff) land is one, that of Abatan (i.e. defendant) is another and we are on our own father’s land. Abatan got not grant from Abimbola family. It was Ogunmola who granted my father land in the area”.

The learned trial Judge next proceeded, rather exhaustively, to consider the entire evidence led on behalf of the parties and their witnesses in the case. On the traditional evidence led by the parties on their respective claims to title to the land in dispute, he commented thus:

“Learned counsel for the plaintiff, Mr. Ogunsola, submitted that the traditional evidence proved by either side is inconclusive. I cannot agree more. There is nothing to choose between Oderinlo and Ogunmola as to who owns the land from Oke Mapo to Orita-Bashorun or to Agodi gate.”

On the more important question of whether the defendant’s family members are customary tenants of the plaintiff’s family, he found:-

“…… but generations of both Abatan and Abimbola families have settled there several years ago, perhaps well up to about one, hundred years ago. Both sides had built houses there. I have painfully examined the evidence to see whether the Abatan family were settled there as guests of Abimbola family with liability to pay tributes as tenants. The onus is on the plaintiff to establish this fact on the balance of probabilities. Regrettably however, the evidence of the plaintiff and of the seventh and eighth plaintiff witnesses fail to support this fact. The plaintiff said that the grant to Abatan family was an out and out grant. It was in effect, a gift. According to him, no tributes are paid.

The seventh plaintiff witness put ownership of the land on Abatan, Abimbola and Daramola families. The eighth plaintiff witness put ownership of the land in both Abimbola and Abatan families. In my finding therefore, I hold that the two families moved to the site about one hundred years ago, no tributes are paid and members of each side built houses there as neighbours and settled, not as tenants of the other but as owners.”

He then concluded:

“In my conclusion, the defendant has settled on the land and exercised acts of ownership numerous and positive enough to warrant the inference that they are owners of their own parts of the land.”

It is thus clear from the foregoing findings of the trial court as affirmed by the court below, that the submission of learned counsel for the plaintiff/appellant to the effect that ownership of the land in dispute was decreed in favour of the said plaintiff cannot, with respect, be right. On the contrary; it would appear that ownership of the land was found in favour of the defendant although no such claim for title was specifically claimed by either side to the suit. Accordingly, the plaintiff claim was dismissed by the trial court.

In upholding the above findings of the trial court, the Court of Appeal per the leading judgment of Ogundare, J.C.A. with which Salami and Muhammad JJ.C.A. concurred stated thus:

“It seems to me therefore, that the evidence of the plaintiff in support of his case was not as inconclusive as opined by the learned trial judge. The obvious inference is that the plaintiff failed to prove that the defendant was a customary tenant. Further at page 38, he made a specific finding that no tributes were paid. He then concluded that the plaintiffs failed to discharge the onus on them and that they cannot rely on the weakness of the defendant’s case and that judgment must be given for the defendants.”

I have, myself, closely examined the above findings of both courts below on the question of whether or not the defendant is a customary tenant of the plaintiff against the entire evidence led at the trial. In my view, there can be no doubt that the said findings are amply supported by abundant evidence on record not only from the defendant and his witnesses but from the plaintiffs’ witnesses as well.

Where there are concurrent findings of both the trial court and the Court of Appeal and there is sufficient evidence in support thereof, then unless those findings are found to be perverse or are not supported by evidence or were reached as a result of a wrong approach to the evidence or as a result of a wrong application of a principle of substantive law or of procedure, this court, even if disposed to come to a different conclusion upon the printed evidence cannot do so. See Enang v.Adu (1981) 11 – 12 S.C. 25 at 42; Nwadike v. Ibekwe (1987) 4 NWLR. (Part 67) 718; Igwego v. Ezeugo (1992) 6 NWLR (Part 249) 561; Chinwendu v. Mbamali (1980) 3 – 4 S. C. 31 at 75 etc. The above findings of both courts below have not been faulted in any way and I have no difficulty in affirming that the plaintiff failed to establish that the defendant is a customary tenant of his family.

Learned counsel for the appellant then submitted that the trial court was in error by raising the question of whether the suit was fought by the parties personally or in their representative capacities suo motu and by proceeding to resolve the issue without hearing from the parties.

The trial court considered the relevant Rules of court on the issue of representative actions and came to the conclusion that the present suit, irrespective of its title, was fought by the parties in their representative capacities. This it did without inviting the parties to address it on the point.

It is settled law that on no account should a court of law raise a point suo motu, no matter how clear, it may appear to be, and proceed to resolve it one way or the other without hearing the parties. See Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 581; Okafor v. Nnaife (1973) 3 E.C.S.L.R. 261 Oje v. Babalola (1991) 4 NWLR (Pt.185) 267 at 280. I have however, given a most careful consideration to whether the plaintiff /appellant suffered any miscarriage of justice in this exercise by the trial court and must resolve the issue in the negative. I must also add that learned appellant’s Counsel was also unable to identify in what respect the decision of the learned trial Judge on the matter occasioned any miscarriage of justice.

It is not every mistake or error in a judgment that will result in the appeal being allowed. It is only when the error is substantial in that it has occasioned a miscarriage of justice that an appellate court is bound to interfere. See Onajobi v. Olanipekun (1985) 2 S.C. (Pt.2) 156 at 163; Azuetonma Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539 at 556; Ukejianya v. Uchendu (1950) 13 W.A.C.A. 45 at 46; Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386 at 400 etc. The error complained of on the part of the trial court not having occasioned any miscarriage of justice, I can find no justification to interfere with the judgment of the trial court as affirmed by the Court of Appeal in this case.

In the final result and for all the reasons that I have given above this appeal fails and the same is hereby dismissed with N10, 000.00 costs to the respondent against the appellant.

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SC.206/94