Alhaji Mufutau Motunwase Vs. Isaiah Sorungbe & Anor (1988)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

In this Suit which emanated from the High Court of Ogun State, the Plaintiffs/Respondents claimed against the Defendant/Appellant as follows:

“(1) Declaration of title according to Native Law and Custom to ALL THAT piece and parcel of land situate lying and being at ALALUKU COMPOUND AFRICAN CHURCH STREET TOTORO AGO-OWU, Abeokuta, Ogun State

(2) N500 damages for trespass committed by the defendant on the said land

(3) Injunction to restrain the defendant, his servants, agents and assigns from putting up any structure or building on the said land.”

Pleadings were ordered and duly filed. At the end of the trial in which both parties gave evidence and called witnesses, Somolu, J. gave judgment in favour of the plaintiffs/respondents allowing their claim in its entirety. An appeal to the Court of Appeal (Omo, Omololu-Thomas and Onu, JJCA) was dismissed on 24th June, 1985. The appellant has now appealed to this Court.

It can thus be seen that this appeal is in fact an appeal against concurrent judgments of two lower courts. It is already trite that this Court will not interfere with such judgments unless it can be shown that there has been a substantial error in law or procedure occasioning a miscarriage of justice. If it is still necessary to support this proposition, See recent decisions of this court in In re Mogaji (1986) 1 N.W.L.R. part 19, 759, 772; Nnajifor v. Ukonu (1986) 4 N.W.L.R. (part 36) 505. Besides, as regards the concurrent findings of fact by the two lower courts, this Court would have to be shown exceptional circumstances before it can interfere. The appellant herein was facing an uphill task, but the appeal was certainly not such as could be dealt with summarily. Indeed, but for the manner in which this appeal was framed and prosecuted, as I shall show hereunder, it may have pulled a surprise.

To start, however, with the pleadings, the respondents in their amended Statement of Claim relied on paragraphs 2, 4, 6, 7,8, 11 and 11A in which they averred as follows:-

“2. The plaintiffs are executing this action for themselves and on behalf of Akiwobi family

4. The original owner of the land in dispute was one Akiwobi who acquired the same in accordance with Yoruba Native Law and Custom. Akiwobi emigrated from Erunmu homestead during the Inter-Tribal wars to acquire the land by settlement ….”
5. Successive generations of the plaintiffs’ family have built and lived on the land in dispute together with the adjoining land. Among the plaintiffs family who have built houses adjoining the

land in dispute in Alaluku compound are Chief J. A. Adebiyi, Shotunde, Awanatu Bodunrin, Ajala’s building all shown on the plan attached to the Statement of Claim.

7. About 1955, the Egba Native Authority approached the Olowu for permission to build a public lavatory on the land in dispute. The Olowu summoned a meeting of the plaintiffs’ family and sought their consent for the public lavatory. The plaintiffs’ family gave their consent and the public lavatory was built on the land in dispute.
8. Some years later, about early 1971, the defendants, by themselves, their agents, servants and assigns, broke down the public lavatory and started to dig the land in dispute preparatory to building operations.
9. The defendant is a member of Omotunwase family whose compound starting from Tiamiyu’s house forms boundary with the Plaintiffs’ family compound. A fence wall separated Tiamiyu’s house from the plaintiffs’ compound but the Defendant broke down the fence wall in order to jump on the land in dispute.

11a. The plaintiffs’ ancestor built his ‘Isona’ art house on the land in dispute and erected in front of it bamboo poles in rows up to where Chief Adebiyi’s house now stands. The poles grew into bamboo trees after his death and the trees were being used by the plaintiffs’ family until they were cleared by the family for buildings. Those on the land in dispute were cleared by the council to give way for the public latrine.”

The defendant in paragraphs 1, 2, 7, 11, 15 of his Statement of Defence averred as follows:-

“1. The defendant is not in a position to deny or admit paragraphs 1, 2, and 7 of the plaintiffs’ Statement of Claim and put the plaintiff to the strictest proof thereof.

2. The defendant denies paragraphs 4, 5, 6, 7, 8, 9, 10, 13, and 15 of the plaintiffs’ Statement of Claim and ask for strict proof of same from the plaintiffs.
3. The defendant avers that the land in dispute originally belonged to one Omotunwasc who acquired same in accordance with Yoruba Native Law and Custom. Omotunwase was a great Owu Prince who migrated from Owu Homestead after the Owu Homestead was sacked following the Owu War and he settled on the land in dispute in 1834.
4. Successive generations of Omotunwase family have built and lived on the land of which the land in dispute forms a part.
5. With regard to paragraph 7 of the Plaintiffs’ Statement of Claim, it was the defendant’s family who gave permission to the Egba Native Authority to build the Lavatory on the land in dispute after the Olowu had sent Akogun of Owu, Olosi of Owu and Bolarin of Owu to the defendants’ family to ask for the permission to build the lavatory.”

These then were the matters on which hath parties joined issue. In his evaluation of the evidence led by the parties, and the findings he made thereon. It was not always quite clear where the learned trial Judge was heading. It is not surprising that the Court of Appeal charged him with equivocating before arriving at his decision. Indeed from some of his findings, it was surprising that his decision was not different from what it was. It would be useful to refer to these findings to appreciate the point being made.

As he was entitled to do, he found the evidence of traditional history led by both sides unsatisfactory and inconclusive. At page 91 of the record, he said as follows:-

“At nowhere was evidence forthcoming corroborative or convincing that any Akinlabi was plaintiffs’ ancestor who founded Alaluku compound for that family. I reject that part of first plaintiffs witness’s evidence. But such evidence of such settlement as was pleaded and on such evidence as rendered by both parties is not traceable to any particular point of history because such vague expressions were used in evidence by both parties on the issue that time which may readily help to make one side’s story convincing and preferable to the other has been lost to the case.”

The Court of Appeal held, and learned counsel for the respondents has urged this Court to hold, that that passage did not mean that the learned trial Judge rejected the evidence on settlement. I think on a closer examination of the above passage, it would be seen that he did. I concede that it may not seem so since later in the same judgment the learned trial Judge held that, one, the bamboo trees on the land in dispute belonged to Akiwobi family from lime of settlement and, two that possession of the portion of land on which the public toilet was built, had been in the plaintiff’s family from the time when Akiwobi settled on it.

Having rejected the traditional evidence, the parties could only proceed on acts of possession and ownership (See Kojo II v Bonsie 14 W.A.C.A. 242; Ekpo v Ita XI N.L.R. 68. What were the acts of possession on which the learned trial Judge based his decision in plaintiffs/respondents favour These were as follows:-

“1. He held that the dispute as to which party gave the land in dispute to the Egba Native Authority for the construction of the public lavatory was resolved in favour of the plaintiffs/respondents. As mentioned above, he held that the family had been in possession of that portion of the land in dispute from Akiwobi’s settlement.

2. Pursuant to the plaintiffs/respondents plea in paragraph II of the Amended Statement of Claim referred to above, and making use of that part of the defendant’s testimony in which he said that “there was a previous bamboo grove on the very site over which I built my house before I did”, and defendant’s admission that there is a tannery (Isona) about ten feet away from the land in dispute, although he said not on it, the learned trial Judge found that Akiwobi, plaintiffs/respondents’ ancestor, planted bamboo trees on his land which he used in his tannery trade. The learned trial Judge held that the bamboo trees were concentrated around the land in dispute and that that land belonged to the Akiwobi family from the time of the settlement.
3. As to the issue of houses which both parties showed around the land in dispute in Exhibits A and B (the parties’ Plans), the learned trial Judge rejected both, holding that “no satisfactory evidence was offered by either side to disprove the other’s structures as shown on either exhibit.”

Before adverting to the approach of the Court of Appeal to these findings, let me refer to two other findings of the learned trial Judge in respect of which he was overruled. First, he awarded damages for trespass to the plaintiffs/respondents on the basis of “defendant’s conduct in firstly removing the bamboo trees on the land in dispute, and secondly, to build a house on it amounts to acts of trespass on the land which belongs to the plaintiffs’ family”.

Second, on the issue of the representative nature of the plaintiffs’ action as averred in paragraph 2 of the amended Statement of Claim, he concluded as follows:-

“No process in the suit filed by them (whether the writ of summons or pleadings) reflect any such status on the face of it. In the end also, no iota of evidence was led thereon and it becomes inescapable and it is so decreed in this judgment that plaintiffs’ action is a personal one even though they alleged that the land in dispute belongs to Akinwobi family. The ultimate verdict in this case will enure personally therefore to the two plaintiffs in their individual capacities whichever way it turns.”

The Court of Appeal after considering the grounds of appeal as well as counsel’s submissions on them, affirmed the findings of the learned trial Judge on the issue of which family gave land to the Egba Native Authority for the building of the public latrine. The Court also upheld the learned trial Judge’s finding that it was Akiwobi, the ancestor of the plaintiffs/respondents, who planted and owned the bamboo trees concentrated around the land in dispute.

Let us then look at the attitude of the Court of Appeal in the two areas in which, as I had earlier stated, it overruled the learned trial Judge although, at least in one area, it arrived at the same conclusion. On the issue of trespass, the Court of Appeal evaluated the evidence before the trial Court and held that the plaintiffs/respondents were entitled to damages for trespass. This was not, as the trial Court held, based on the cutting down of bamboos but, first, on the basis that the trial Court having held the land in dispute was plaintiffs’ family land, the plaintiffs on record were in possession and it was not necessary to specifically identify which of the two plaintiffs on record was actually in possession. Second, and more important, on the ground that the plaintiffs/respondents pleaded, and the appellant admitted, that he pulled down the public latrine built on the land in dispute and started building his house, and that he was still on the land.

In his appeal to this Court, the appellant filed 5 grounds of appeal which I do not think I ought to set down. However, I must mention, and this is a matter I shall return to later, that the grounds were formulated exactly in the same terms as the additional grounds of appeal filed before the Court of Appeal except of course that the appellant started each one with –

“The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts…………….”

Then the complaint would merely recite what the learned trial Judge had failed to do. The point being made was clearly brought out in the particulars attached to his grounds of appeal.

The appellant identified four issues for determination. I shall set them down and they were as follows:-

“1. Whether or not on the pleadings (the Amended Statement of Claim) there is any claim by 2nd Respondent for a declaration of title traceable to AKIWOBI

(a) If the answer in 1 above is in the negative can the court proceed to grant same

2. Can the Court, having decreed that the plaintiffs action is personal to them at page 83 lines 20 – 28 and on which there is appeal proceed to declare and award damages for trespass in a representative manner
3. Whether by the Amended Statement of Claim of the Respondents and as a result of the court not finding possession in the plaintiffs as shown in the Amended Statement of Claim the Respondents could still succeed in their claim for trespass.
4. Whether the court can grant a relief to the Respondents not claimed in their Amended Statement of Claim.”

Neither in the grounds of appeal before this Court, nor in the brief of argument did the appellant complain about the Court of Appeal’s reversal of the findings/conclusions of the trial Judge. The point was made during oral argument when learned counsel to the appellant attacked the Court of Appeal’s findings on that basis. Perhaps it ought to be emphasised that, pursuant to Section 213(1) of the Constitution, appeals lie from the Court of Appeal, not the High Court, to this Court. It seems to me pointless to belabour this Court with what the learned trial Judge did not do, or did wrong, A except of course if such a point falls into one of those exceptional matters in respect of which, leave of this Court having been granted, a matter not canvassed in the Court of Appeal can be entertained here. See Adio v State (1986) 2 N.W.L.R. part 24, 581,587.

It is well settled that findings of fact are very much in the domain of the trial Court. A Court of Appeal will hesitate to reverse them except under well settled principles. In matters of credibility based on demeanour of witnesses, a Court of Appeal cannot and ought not to interfere as it did not have the advantage which the trial Judge had of seeing such witnesses testify.

If, however, what is involved are findings based on inferences which the learned trial Judge has drawn from the evidence, the Court of Appeal is in as good a position as the trial court and can make its own findings if in its own view the findings made by the learned trial Judge are wrong. See Frank Ebba v Ogodo (1984) 1 SCNLR 372, at 379, 381; Abusomwan v Mercantile Bank (Nig.) Ltd. No.2 (1987) 3 NWLR (Part 60) 196 at 207. See also Ukonu’s case (Supra).

Although, as I said earlier, there was no direct complaint by the appellant, it is still necessary to see whether the Court of Appeal acted outside those principles.

On the question of the finding of trespass, and the consequent awards of damages, the learned trial Judge, as earlier mentioned in this Judgment, after evaluating the evidence held not only that the plaintiffs through their Akiwobi family were all the time in possession of the land in dispute, but that the trespass was based on the destruction of the plaintiffs’ bamboos by the appellant before the construction of his house. This, as had already been mentioned was a serious error. Although the appellant had in his evidence admitted that – “there was a previous bamboo grove on the very site over which I built my house before I did”, this was not the complaint of the respondents in their pleadings. In paragraph II of the Amended Statement of Claim, earlier set down, their complaint was rather that the appellant broke down the fence – wall separating the parties’ compounds. In fact in paragraph 11a of the amended Statement of Claim, also set down above, the respondents averred that it was members of their family and/or the Council who destroyed the bamboo grove for building of the public latrine.

On page 160 of the records, the Court of Appeal (per Onu, J.C.A.) commented on the issue of Trespass as follows:-

“Admittedly, the trial court correctly found that there was no evidence to establish trespass against the appellant by breaking the fence separating their adjoining family lands to come upon the respondent’s family’s. It was equally not established that the appellant by going on to the tannery (Isona) then in possession of the respondents as pleaded in paragraph 11(a) of the Amended Statement of Claim committed trespass. Nor would the clearing of bamboo as alleged by respondents constitute an act of trespass. Albeit, the respondents pleaded and the appellant admitted that he pulled down the latrine and started building his house and that he is still on the land. This act of appellant is what constitutes the trespass and for this he is liable in damages.”

I see no where the Court of Appeal can be faulted here. It was entitled to evaluate the evidence and arrive at its own conclusion in the face of the learned trial Judge’s error. In any case, its conclusion was supported by the pleadings and the evidence before the trial Court. In his ground 3 particular (ii) of the grounds of appeal, the appellant complained that-

“the facts found by the Court on which the claim for damages for trespass would appear to have been justified was not pleaded in the Amended Statement of Claim.”

A look at the particulars in the whole ground is an example of the point I made earlier – i.e. the complaint being of what the learned trial Judge did. To the extent that “Court” in the particular referred to above is taken as the Court of Appeal, the complaint is certainly unjustified. In paragraph 8 of the Amended Statement of Claim the respondents averred as follows:-

“Some years later, about early 1971 the defendants by themselves their agents, servants and assigns broke down the public lavatory and started to dig the land in dispute preparatory to building operations.”

There was ample evidence from the plaintiffs that the defendant broke down the public toilet. For instance, 2nd P.W. Lamidi Adebowale said at page 20,

“The Olowu sent to us to inform us that a public lavatory was being contemplated for the use of Owu people and sought our permission to donate the land for the lavatory. My family gladly donated the portion of our land for the purpose. The public lavatory had been pulled down by the Defendant. I don’t know how he removed the public lavatory. Defendant later built on the land on which the public latrine was and we sued him.”

Even the appellant did not really deny paragraph 8 of the Amended Statement of Claim. Of course his case was that it was infact his family that donated the land in dispute on which the lavatory was built to the Abeokuta Urban District Council. This is why in paragraph 9 of his Statement of Defence he averred as follows:-

“With regard to paragraph 8 of the Plaintiffs’ Statement of Claim, the defendant and Tiamiyu Ogunremi, a member of the defendants’ family in 1971 did inform the Abeokuta Urban District Council in a letter of their intention to break down the public lavatory because they required the land for building purposes and the A.U.D.C. agreed by removing the lavatory.”

The appellant followed this pleading by stating in his evidence in chief as follows:-

“It was the Local Authority who built the public toilet on the first instance that we went to request them to remove same since there was no grant of the land on which it is made to them but only its limited use and they agreed and came to demolish same.”

The learned trial Judge did not make any finding as to who actually broke down the toilet as he based his award of damages for trespass on something else. The Court of Appeal was quite entitled to evaluate the evidence given by both sides and make a finding as it did. Although the appellant denied breaking down the toilet, it was not surprising that the Court of Appeal found against him. Contrary to his case, both Courts found that it was the plaintiffs’ family that granted the land for the toilet. The appellant also built on the land on which the toilet stood but claims it was the Council that broke it down. That claim is not supported by any credible evidence, particularly as the trial Court believed the plaintiffs’ testimony that after the report made to the Olowu following the appellant’s breaking of the toilet was investigated, the Olowu and his Chiefs found that the land in dispute was owned by the respondents. (See paragraphs 9 and 10 of the Amended Statement of Claim).

The other matter on which the Court of Appeal overruled the learned trial Judge – the issue of representation – does not violate the principles set down above even though the Court’s decision on the issue is not so easy to accept. It seems that the Court of Appeal was of the view that the learned trial Judge came to a wrong conclusion after his evaluation of the evidence led on the matter. In their pleadings, the respondents in paragraph 2 of the Amended Statement of Claim claimed to be prosecuting the action for themselves and on behalf of Akiwobi family. After reviewing all the evidence, the learned trial Judge held that the representative character of the suit had not been established and so the result of the suit would enure personally to the named respondents.

The Court of Appeal agreed that no where in the Amended Statement of Claim is the 2nd respondents’ relationship traced to Akinwobi whereas that of the 1st Respondent is clearly set out therein. But the Court went on, “Be that as it may, the rest of the amended Statement of Claim shows 2nd Respondent as being clearly a party to the suit notwithstanding that his claim to the disputed land through Akinwobi has not been expressly pleaded. It is worthy of note however that evidence led throughout before the trial Court showed unmistakably that both respondents were talking of family land. It is therefore not strictly a correct statement to assert as in particular (i) in this ground of appeal that there was no reference to and indeed no claim in the amended statement of claim on behalf of the 2nd respondent to the land in dispute either through Akiwobi or through anyone else. For, while one plaintiff may fail, the other may succeed in an action where they sue jointly.”

It is clear that the Court of Appeal reversed the learned trial Judge first, because “it was family land the respondents were suing appellant for and evidence led at the trial pointed unmistakably towards that goal”, and second, the appellant did not really deny the respondent’s averment in paragraph 2 of the amended statement of claim that they were suing in a representative capacity. The Court of Appeal relied on the decision of this Court in Lewis Peat (N.R.I. Ltd) v Akhimein (1976) 7 S.C. 157 to the effect that an averment which is not expressly traversed is deemed to be admitted. Admittedly one does not need to prove that which is admitted by the other side. But in a case such as one for declaration of title where the onus is clearly on the plaintiff to lead such strong and positive evidence to establish his case for such a declaration, an evasive averment (“the defendant is not in a position to deny or admit paragraphs 1,2 and 7 and will put the plaintiffs to the strictest proof thereof”) does not remove the burden on the plaintiff. In Bello v Eweka (1981) 1 S.C. 101 at pages 102 and 118(a decision to which learned counsel to the appellant drew our attention) this Court, though not overruling the Peal case (Supra) certainly severely restricted its application particularly in cases of declaration of title to land. In that case Obaseki, J.S.C. said at page 101.

“It is true as was contended, before us by the appellant’s counsel that the Rules of Court and Evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the defendant that he is entitled. The necessity for this arises from the fact that the Court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence.”

For his part Eso, J.S.C. at page 118 said that,

“A statement oral or written made by a party to civil proceedings and which statement is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement. See Seismograph Service (Nigeria) Ltd v Chief Keke Ogbenegweke Eyuafe (1976) 9 – 10 S.C. 135 at p. 146 ……. But this admission which excuses the appellant from proving his purchase of the land from a common vendor is not the end of the matter.

The learned Justice went on to talk about the learned trial Judge’s evaluation of all the evidence before him.

In the Eweka case, the admission is question was a positive and affirmative one – that the other party bought from the common vendor. In the instant case, the so-called admission was at best an implied one. There was therefore the onus on the respondents, having not traced the 2nd Respondent’s Claim to Akiwobi to show why, as appellant’s counsel contends, their case ought not to have been dismissed instead of awarding them the declaration of title they sought.

If one was to answer the question posed in issue 2 of the appellant’s brief, the answer would have been no if one was dealing with the trial Court. But even at the risk of repetition we are not taking appeal from the High Court. I have set down above the two reasons forming the basis of the Court

of Appeal’s decision. For my part, I would agree with that which refers to the evidence led throughout the proceedings. It was family land of the Akinwobi family that the respondents talked about. All their evidence throughout the proceedings was of the land of the family. The issue joined by the parties on the pleadings and evidence was whether this was plaintiffs land inherited through their ancestor, Akiwobi, or that of the appellant inherited through his ancestor, Owotunwashe. In Mba Nta v Anigbo (1972) 5 S.C. 156; 1972 E.C.S.L.R. Vol. 2 part 1 306 at 315 where there was argument as to whether the judgment in which the named defendants were sued “for themselves and as representatives of Amodu Akegbe people” was binding on the whole people of Amodu Akegbe, this Court put emphasis on the case put forward by both parties and the evidence led Coker, J.S.C. at page 315 of the report said”

“In the case in hand, it is true that the defendants stated in their statement of defence that they were not representing their people of Amodu Akegbe but certainly they had fought the case throughout on the basis that the land concerned was the land of the people of Amodu Akegbe some of whom they were and that the boundary which is the crux of the case is the boundary between their two peoples of Agbani and Amodu Akegbe.”

This should really be the end of this appeal for the appellant was always facing an uphill task. The findings of the learned trial judge on which party donated the land on which the public toilet was built, and on whether it was Akiwobi who planted the bamboo trees on the land in dispute, which were affirmed by the Court of Appeal are concurrent findings of fact. It is trite that this Court will not interfere with them unless the appellant can show exceptional circumstances either in the form of a miscarriage of justice or a substantial error in law or procedure to the respondents. The issue is No.4 in the appellant’s brief. I am unable to agree with appellant’s contention that the relief of injunction was not claimed in the respondent’s amended Statement of Claim. That statement of claim ended thus: “Whereof the plaintiffs claim as per their writ of summons” Surely in the writ of summons the third claim was:

“Injunction to restrain the defendants his servants, agents and assigns from putting up any structure or building on the said land.”

I think that the complaint of the appellant in the Court of Appeal was that the learned trial Judge ought not to have granted “an injunction varied to what was sought”

as this amounted to claiming a relief not claimed in the writ of summons or in the pleadings before the court. The Court of Appeal refused to be dragged into the learned trial judge’s unnecessary exercise of discretion under Order 35, Rules of the High Court Civil Procedure Rules of Ogun State 1977.

Once the trial Judge granted declaration of title to the respondents as well as damages for trespass, he had to award an injunction. The rationale for such an award is to save the successful plaintiffs from future incursions into their land and consequently future litigation. As this Court said in Etowa Enang and Ors. v Adu (1981) 11-12 SC. 25 at 48 such an award is “to prevent multiplicity of actions and also to prevent irreparable damage or injury or irremediable mischief.” See also Obanor v Obanor (1976) N.M.L.R. Vol. 1 39 at 43; Okechukwu and ors v Okafor and ors (1961) 1 All N.L.R. 685, 691.

The result is that this appeal fails and it is dismissed. I award costs of N500 in favour of the respondents and against the appellant.

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Other Citation: (1988) LCN/2371(SC)