Alhaji Fatai A. Matanmi Vs Victoria Dada (2013)
LAWGLOBAL HUB Lead Judgment Report
J. A. FABIYI, JSC
This is an appeal against the judgment of the Court of Appeal, Ibadan Division (the court below for short) delivered on the 10th day of May, 2001 in which the judgment of the trial High Court sitting at Abeokuta, Ogun State of Nigeria, delivered on 29th November, 1985 was affirmed. It is apt to state the relevant facts of the matter. The plaintiffs who are the respondents herein claimed in the trial court by writ of summons as follows:- PAGE| 2 ‘1. Declaration to the effect that the plaintiffs are entitled to Certificate of Occupancy to the parcel of land situate and known as Ijari land in Ijoko Otta Railway Station, via Otta, Ifo/Otta Local Government Area, Ogun State. 2. The sum of =N=50,000:00 (Fifty Thousand Naira) as special and general damages for the unlawful trespass by the defendant on the land between 15th and 22nd of November, 1980 by way of clearing the various cash crops and life crops and other properties of the plaintiffs on the land with the use of heavy caterpillar and bulldozers. 3. Injunction restraining the defendant his servants, agents or any other person acting for him from committing any further acts of trespass on the land.’ At the trial court, the parties exchanged pleadings and adduced evidence. The root of title of the plaintiffs, as pleaded, firmly rests on traditional history. The plaintiffs maintained that the parcel of land in dispute formed part of a larger tract of land settled upon by their ancestor, Ajari about 300 years ago. They maintained that Ajari came from Tigbo and settled on the land which was then a virgin land. Ajari built a hut and used the remaining area for farming. As highlighted by the appellants counsel in the brief of argument, P.W.I, the 1st plaintiff/respondent, testified that the land in dispute known as Ijari land formed portion of a large parcel of land which her ancestor Ajari acquired by settlement. She said no member of her family lived in Ijoko until their father went there to teach only in 1957. She also said that none of their family members has a house at Ijoko. P.W. 4 gave evidence that the father of the plaintiffs acquired the land by purchase; not by act of settlement as stated by P.W.I. P.W.5 gave evidence of sale of land by the plaintiffs family to C.M.S Church in 1920. The court found the pieces of evidence given by this witness to be hearsay. PAGE| 3 P.W.9 who is the Baale said his own predecessor founded Ijoko contrary to the assertion of P.W. 1. P.W. 12, contrary to the evidence of P.W.I testified that the land in dispute belongs to Ojomo and Ogundare families and is known as Elerinko. The case of the defence as pleaded and testified upon was that the land in dispute formed part of a larger parcel of land which belongs to the Matanmi family of Ijoko. They testified that Ijoko was founded by Matanmi their great-grand father. They gave evidence leading to the chain of events and transmission of authority in the Ijoko land from their founder to the present generation of defendants. The defendants testified on acts of ownership on Ijoko land including the land in dispute as they sold, granted, conveyed and farmed on various portions of the Ijoko land. Learned counsel for the appellants pointed it out that the defendants who are the appellants have no counter-claim. He submitted that the burden of proof squarely rests on the plaintiffs who must succeed on the strength of their case and not on the weakness of the defence (if any). As stated earlier on, the claims of the plaintiffs rest on declaratory relief. I agree with the learned counsel that the plaintiffs must establish their claim on the strength of their case. They cannot place any reliance on the weakness of the defence; if any. The burden of proof on the plaintiffs in establishing their declaratory relief to the satisfaction of the court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendant where the plaintiffs fail to establish their entitlement to the declaration sought by their own evidence. See: Nwokidu v. Okaru (2010) 3 NWLR (Pt. 1181) 362, Dantata v. Mohammed (2002) 7 NWLR (Pt. 664) 176; Ekundayo v. Beruwa (1965) 2 NWLR 211 and Dumiez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 373. As noted by the learned counsel to the appellants, the learned trial judge at page 134 of the records took into account the serious contradictions in the case of the plaintiffs and found as follows:- PAGE| 4 ‘However, in the face of contradictions in the evidence of the plaintiffs as to who found Ijoko, the mode of acquisition of the land in dispute by the plaintiffs family, the name by which the area is known and the family to which the land belongs, it cannot be said, in my view, that the plaintiffs have adduced cogent evidence of tradition to sustain the claim for a declaration of title…….. In addition to these we have the evidence of the 1st plaintiff himself (sic) that no member of her family ever lived in Ijoko until her father went to work there as a teacher in 1957. No member of the family has a house there, even now.’ Learned counsel for the appellants, observed that the above conclusion reached by the learned trial judge, ought to have put paid to the claim of the plaintiffs in seeking declaration of title, as it is a clean evidence that the plaintiffs failed woefully to discharge the burden of proof on them. He maintained that rather than dismissing the case of the plaintiffs, the learned trial judge, strangely proceeded to consider facts in recent time which are non-existent to determine which of the traditional evidence proffered is more probable and thereafter entered judgment for the plaintiffs. The defendants then felt irked with the stance posed by the trial judge and appealed to the court below. The case of the appellants at the court below was that the plaintiffs did not prove their case to warrant a declaration of title being made in their favour. The appellants maintained that the trial judge, having rejected the case of the plaintiffs, ought to have dismissed their claim in its entirety. The court below heard the appeal and dismissed same. The defendants have now made a further appeal to this court; sequel to the leave granted on the 1st day of July, 2003 as can be seen on page 199 of the records. The Notice of Appeal contained six grounds of appeal. Briefs of argument were filed and exchanged by the parties. On the 13th of November, 2012 when the appeal was heard, learned counsel on both sides of the divide adopted and relied on their respective briefs of argument. Learned counsel for the appellants urged that the appeal should be allowed while the learned counsel for the respondents urged that the appeal should be dismissed. PAGE| 5 On behalf of the appellants the two issues couched for determination of the appeal read as follows:- ‘(1) Whether the Court of Appeal and the trial court were not in error in resorting to facts in recent times to conclude that the plaintiffs proved their case when in actual fact plaintiffs did not adduce any cogent evidence of tradition and when there was no conflict in traditional evidence neither was same inconclusive-Grounds 1 and 2. 2. Whether plaintiffs proved their case (sic) to the land in dispute. Grounds 3, 4, 5 and 6.’ On behalf of the respondents the two issues decoded for determination of the appeal read as follows:- ‘(1) Whether on the totality of the evidence adduced before the trial court as affirmed by the justices of the Court of Appeal, the plaintiffs/respondents have proved their title to the land in dispute. 2. Whether there is just cause for the Supreme Court to disturb the findings, of fact made by the two lower courts in this case.’ Arguing issue 1, it was submitted on behalf of the appellants that in determining ownership of land, as in this matter on appeal, five means of proving title have become crystallized in our law. The cases of Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at 320 -321 and Idundun v . Okumagba (1976) 9 & 10 SC 227 were cited. Learned counsel for the respondents made a similar submission when he maintained that the law is well settled that there are five recognised methods by which ownership of land may be established. He also cited the cases of Moses Uzochukwu & Ors v. M. Eri & Ors. (1997) 7 SCNJ 238 at 246-247; Idundun v. Okumagba (supra) at 248; Lawani Ali & Anr. v. Alesinloye (2002) 2 SCNQR (Pt. 1) 285 at 306. PAGE| 6 It is now beyond argument, as it has been consistently held by this court without any equivocation that there are five ways of proving title to land. A claimant may rely on more than one mode of proving title; if so desired. However, one mode of proving title will suffice, if properly established to the satisfaction of the court. The five ways of proving title to land are:- (a) Traditional evidence. (b) Production of document of title. (c) Proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land. (d) Acts of long possession and enjoyment of the land. (e) By proof of possession of adjacent land in dispute in such circumstances which render it probable that the owner of the adjacent land is the owner of the land in dispute. The cases cited by both sides of divide as recounted above are clearly in point. For further reinforcement, I need to also refer to Ogunnaike v. Oluyemi (1987) 3 SC 215 and Atanda v. Ajani (1989) 3 NWLR (Pt. 1ll) 511. In further arguing issue 1, learned counsel for the appellants observed that in proving their right of title to the land in dispute, the plaintiffs at the trial court, who are respondents herein relied essentially on traditional history to show that the land in dispute form part of a larger tract of land which was settled upon by their ancestor-Ajari. It was further observed that the defendants who are the appellants herein also relied on traditional history to establish the fact that, the land in dispute form part of a larger tract of land which belongs to the Matanmi family of Ijoko. Learned counsel for the appellants submitted that the position of the law has always been that where there are two conflicting sets of traditional history, it is not right to assess or determine first which of the two sets of traditional evidence is plausible or credible before reference is made or consideration is given to facts in recent time. He cited Popoola v. Adeyemo (1978) 1 NWLR (Pt. 66) 578 at 587. It was further submitted that, where traditional evidence adduced PAGE| 7 by the parties are inconclusive, the court is enjoined to make resort to facts in recent years to determine which of the traditional evidence is more probable. The case of Kojo 11 v. Bonsie (1957) 1 WLR 1223 was cited. Learned counsel for the appellants observed that the learned trial judge considered the traditional evidence given by the plaintiffs and rejected same. He felt that the rejection of the traditional evidence ought to have put paid to the case of the plaintiffs for declaration of title. He cited Odofin v. Ayoola (1984) 11 SC 72 at 106. He felt that it was incomprehensible that the learned trial judge who rejected the traditional evidence of the plaintiffs resorted to facts in recent years to determine which of the traditional pieces of evidence is more probable. Learned counsel for the respondents herein who were the plaintiffs at the trial court submitted that the case of Kojo 11 v. Bonsie was correctly applied in the circumstances. He maintained that the trial judge passionately considered the traditional evidence given by the parties and adopted the correct approach which the Court of Appeal affirmed. It hardly needs any gainsaying that the learned trial judge concluded specifically at page 134 of the records that the plaintiffs failed to adduce cogent evidence of traditional history to sustain the claim for a declaration of title. I shall restate the conclusion of the trial judge on the point as follows:- ‘However in the face of contradiction in the evidence of the plaintiffs as to who founded Ijoko, the mode of acquisition of the land in dispute by the plaintiffs family, the name by which the area is known and the family to which the land belongs, it cannot be said, in my view, that the plaintiffs have adduced cogent evidence of tradition to sustain the claim for a declaration of title ‘ I need to emphasise the point here that the position of the law on the effect of rejection of traditional evidence is as stated by this court in Odofin v Ayoola (1984) 11 SC 72 at 106; (1984) NSCC (Vol. 15) 711 at 720 per Karibi-Whyte, JSC as follows:- ‘It follows therefore that where traditional evidence of that alleged from which title is PAGE| 8 derived, is lacking or rejected, as was in this case, such evidence is not merely inconclusive but also cannot be relied upon whether any other acts positive or numerous can support evidence of ownership. The basic foundation, that is traditional evidence, having been rejected, there is nothing on which to found acts of ownership.’ I strongly feel that since the trial judge found that the traditional evidence adduced by the plaintiffs was not cogent and reliable to sustain the claim for declaration of title, same has been found to be inconclusive. The plaintiffs action being one for a declaration of title to land, the burden of proof lies on them and they must succeed on the strength of their own case. See: Owoade v.Omitola (1988) 2 NWLR (Pt. 77) 413. The plaintiffs failed to discharge the burden of proof on them. I am of the view that the plaintiffs claim should have been dismissed at this point without any further ado. To the appellants dismay, the trial judge went ahead to attempt to apply the Rule in Kojo 11 v. Bonsie (supra) as laid down by the West African Court of Appeal in coming to the conclusion that the plaintiffs were entitled to a declaration of title to the land in dispute and the court below affirmed same. What then is the Rule in Kojo 11 v. Bonsie? The Rule which has stood the test of time for quite sometime now is that where traditional evidence proffered by the parties are inconclusive, the court is enjoined to take into consideration facts in recent times given by the parties in order to determine which of the traditional evidence is more probable. To resort to the rule, the traditional evidence of the parties must be capable of being believed but that since the two are competing, a court cannot prefer one to the other. Rather, it is enjoined to look out for further facts in recent times to see which of the traditional history is more probable. The finding of the trial judge that, there is no cogent evidence of tradition to prove the claim for declaration of title put steam out of the plaintiffs case. The court below felt that the trial court was right in the position taken by it. With respect, the court below was wrong. Indeed, the two courts below erred. The evidence of the plaintiffs that was rejected by the trial court had no chance of being tested under the Rule in Kojo 11 v. Bonsie (supra). The application of the Rule in the prevailing circumstance is not apt. PAGE| 9 The court below at page 190 of the record stated as follows:- ‘It is clear from the above findings of fact that the conclusion reached by the learned trial judge that no where did the learned trial judge reject the traditional evidence tendered by the plaintiffs in the entire judgment.’ Earlier in this judgment, it was pointed out that the trial judge at page 134 of the record rejected the traditional evidence tendered by the plaintiffs in clear terms. If the learned justices of the court below considered same, they would not have held that the learned trial judge did not reject the traditional evidence proffered by the plaintiffs. The court below goofed on the point and the stated conclusion is hereby set aside. I need to further say a word or two on acts of ownership and possession strongly canvassed by the plaintiffs. The findings of the trial judge are, equally not helpful in advancing the cause of the plaintiffs in this respect. Again, at page 134 of the records, the trial judge stated as follows:- ‘In addition to these, we have the evidence of the 1st plaintiff himself (sic) that no member of her family ever lived in Ijoko until her father went there to work as a teacher in 1957. No member of the family has a house there, even now.’ It is extant in the record of appeal that P.W.5 gave evidence of sale of land by the plaintiffs family to C.M.S church in 1920. The trial court found that the pieces of evidence given by the witness were hearsay. There was no testimony from any other witness that the plaintiffs family granted them any part of the piece of land. No member of their family has any house at Ijoko even now to use the words of the 1st plaintiff herself. In the main, the trial court, having held that there was no credible evidence of tradition, there is nothing left to establish the case put up by the plaintiffs. Again, refer to Odofin v. Ayoola (supra) as well as Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263. On the other hand, the defendants who are appellants herein, gave evidence which remain PAGE| 10 unchallenged that their family members have houses on the land; inclusive of that now in dispute which forms a part. D.W.5 testified in respect of houses belonging to eight (8) members of Matanmi family located before and after the railway line. An unchallenged evidence is deemed to be correct and can be acted upon by the court. The case of Alfontrin v. Attorney-General Federation (1996) 9 NWLR (Pt. 475) 634 cited by the counsel to the appellants is of moment. See also Omoregbe v. Lawani (1980) 3-4 SC 108 at 117, Faroso v. Beyioku (supra) at page 271. It is my view that if the evidence with probative value as adduced by the parties in respect of acts of ownership and possession is put on an imaginary scale, same must tilt to the appellants side. Refer to Mogaji v. Odofin (1978) 4 SC 91 at 93; Bello v. Eweka (1981)1 SC 101; Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101; Owoade v. Omitola (supra) andAdisa v. Ladokun (1973) 1 All NLR (Pt.2) 18. Finally, the point relating to concurrent findings of the two lower courts should be pronounced upon, albeit, briefly. Learned counsel for the plaintiffs/respondents urged that this court should not interfere with same. He felt that the findings of the trial court which were affirmed by the court below were properly made. It is basic that an appellate court will not interfere with findings of fact except where wrongly applied to the circumstance of the case or conclusion arrived at was patently perverse or wrong. See: Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt. 93) 225; Nneji v. Chukwu (1996) 10 NWLR (Pt. 378) 265. An invitation to this court to upset concurrent findings can only be justified when such findings do not relate to any evidence on record or substantial error is manifest in the proceedings/decision or the findings cannot be supported having regard to evidence before the court. Refer to Alakija v. Abdulai (1988) 6 NWLR (Pt. 552) 1; Ogbu v. Wokoma (2005) 14 NWLR (Pt. 944) 118 at 140. It appears to me that the concurrent findings of the two lower courts are caught up by certain elements listed above and such would warrant an intervention by this court by virtue of its PAGE| 11 undoubted powers as dictated by section 22 of the Supreme Court Act. As clearly pointed out in this judgment, the trial judge rejected the plaintiffs traditional evidence – as being unreliable. Instead of putting the claim of the plaintiffs to an end by dismissing same in tune with the stand of this court in Odofin v. Ayoola (supra), it went on to wrongly apply the Rule in Kojo 11 v.Bonsie which was not apt. The plaintiffs had nothing to show in respect of acts of ownership and possession to enter judgment for them. The trial judges action has the semblance of a comedy of errors. The court below goofed when it found that the trial court did not reject the traditional evidence of the plaintiffs. It erred when it affirmed the application of the Rule in Kojo 11 v. Bonsie to tilt undeserved judgment in favour of the plaintiffs. To my mind, the concurrent findings of the two lower courts are not sustainable. I have a duty to interfere and in tandem with the authority given in section 22 of the Supreme Court Act, I so do. I come to the final conclusion that the appeal is meritorious. It is hereby allowed. The judgment of the court below is set aside. The plaintiffs/respondents claim before the trial court rests on a shifting sand. It is hereby dismissed. The respondents shall pay =N=50,000:00 costs to the defendants/appellants.