Asani Sogunro & Ors V. Aremu Yeku & Anor (2002)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A.

The plaintiffs at the OTTA Judicial Division of High Court of Ogun State, holden at Otta, issued a writ of summons against the defendants, the writ was duly indorsed and served on the defendants. After service of the writ of summons on the defendants, pleadings were ordered, filed, exchanged and amended, the plaintiffs’ case was concluded on further amended statement of claim with the claims of plaintiffs set out in paragraphs 33 and 34 of the further amended statement of claim as follows:-

“(33) The defendants being tenants of the plaintiffs, have by their actions, denied the plaintiffs’ title and have claimed ownership absolutely or through other source.

(34) Whereof the plaintiffs’ claim:-

(a) A declaration of forfeiture of the defendants’ tenure under native law and custom.

(b) Possession of the said land.”

As the particulars of claims supersede the particulars of claims in the writ of summons J.O. Lahan v. Lajoyetan (1972) 6 Sc. 190. Ndigwe v. Nwude (1999) 11 NWLR (Pt.626) Page 314 SC.; Ogun v. Akinyelu (1999) 10 NWLR (Pt.624) page 671 CA., Onyero v. Nwadike (1996) 9 NWLR (Pt.471) page 231 CA; Fasanya v. Adekoya (2000) 15 NWLR (Pt.689) page 22 CA. The claims of the plaintiffs are as set out in paragraphs 33 and 34 in the further amended statement of claim.

To establish the claims, plaintiffs called 7 witnesses with the main plank based on traditional evidence and acts of ownership by plaintiffs in respect of parcel of land occupied by plaintiffs for farming at IBASA in IGANUN village of Ogun State, which land was more particularly described as per the survey of disputed land by the 7th PW licensed surveyor, who surveyed the land, the plan was admitted in evidence as exhibit 2. 7th PW identified the signature of AKINBOGUN, a deceased licensed surveyor, who carried out the survey of the disputed land for the defendants. The disputed land survey for the defendants was admitted as exhibit 3.

The 1st PW testified about ABINU and ADEJONBI, who were his maternal great-grand-parents, who were from Alawe dynasty of Igaun. Their projenitor ABINU MIGRATED FROM ILE-IFE to IJEBU IFE, from where he moved and lived in IGANUN, from there he used to hunt and farm at IBASSA. It was there that the defendants’ ancestors came to plaintiffs’ forefathers ADEJONLU, who granted the land to which the defendants succeeded, to which land they now claimed ownership. 1st PW was granted power of attorney with 5 other persons to institute the action. The power of attorney was admitted without objection as exhibit 1. The defendants like their forefathers paid customary tributes in form of yams, palm product, etc to the plaintiff. The defendants dealt with the land by refusing to pay tributes and laid ownership to the land in dispute. There was no survey plan attached to exhibit 1.

The 1st PW was cross examined and denied that defendants were from Igbein and came to settle on the disputed land.

The 2nd PW principal witness for the plaintiffs testified partly thus:-

“I have heard of a man called ABINU. He is my great-grandfather. He first lived at Ibasha from Ile-Ife. When Abinu left Ife, he went to Ijebu-Ife and then went to Ibasa amidst thick forest, settled at Ibasa and hunting and people, came from Igaun, to partronise him. He asked prospective buyers to meet him, where he slaughtered meats into pieces – That is why the place is called Ibasa. He used Ibasa as working place, after selling his meat then, he would return to Igaun. Later people farming came to meet him at Igaun and begged for farming land, which Abinu granted them.

Adejonlu is my great grandfather. Abinu is the father of Adejonlu. Those who came to ask for farming land from Abinu were Odeyale and Odeleye (They are brothers). They came from Abeokuta and were granted land to farm.

I remember a place called Olowotedo, near Ibasa. That was where Odeyale built his house; and settled at Olowotedo. His brother Odeleye, settled at Abata (bank of a swamp) where Adejonlu was. Another younger brother to Odeleye (called Yeku) came and stayed with Odeleye – he too farmed.

These people farming, at the end of each year, they would bring corn, palmoil and yams to Adejonlu. After some time, thieves broke into Odeyale’s house and removed all his properties. Odeyale then left that village to go back to Abule Ibasa.

After Adejonlu died, those yearly tributes (Isakole) continued to be paid, until it is the turn of their children, who also continued to pay the Isakole.

After the death of Adejonlu, tributes were paid to Falola as Asederu, while the females had gone to marry.

Falola had children who were Akinwunmi who begat me (witness), Owa, Ilo, Asederu begat Ogunsola, Adenike and Omoyin, Akinwunmi is my father, Ogunsola’s children are at Igaun. I am the only surviving son of Akinwunmi.

I know Mustapha Yeku (1st defendant). I know his father Yeku but he is dead.

I know Tiamiyu Kotoye (2nd defendant). I know Tiamiyu Sowunmi. I know the father of those two people. Odeyale begat Tiamiyu Sowunmi, while Kotoye was begotten by Kotoye.

I know Jinadu Odeleye. He has children by name Kelani. They are still paying until the beginning of this case. In the absence of palm oil, the Ishakole was communicated to cash plus drink. They always bring up to N5-N6.00 during our Agemo festival.

The 1st defendant (Mustapha Yeku) brought somebody to ask for land and that the land belongs to Igaun people.

We cleared the land and Mustapha got angry that we cleared the land without his knowledge. Then, we told him that it was Mustapha that brought this man to us to grant him land. We wanted to settle but we were later taken to Alake.

Later, the proposed purchaser – Chief Adeyemi tried to settle that we would share the proceeds into two, and we refused because the land does not belong to the defendants. All that we could do was to pay them for what they planted on the land. In order to avoid trouble, that was why we are in court.

We were refused entry into the land, even when we wanted to survey the land. The surveyor’s equipment were seized and they are still holding on to it.

The defendant are farming on the land and have sold part of the land with that of our boundary man.

We want the court to help us retrieve our land, which belongs to our great-grandfather.

The defendants say that the land does not belong to us.

They are our “Onibiko” (customary tenant).”

CROSS-EXAMINATION:

Abinu is not Egba. He settled at Ibasa from Ijebu-Ife. He was followed by one wife, whose name I don’t know. He lived with his wife in Ibasa in the hut. I don’t know how many years he lived at Ibasa, before moving to the township at Igaun. Before he left Ibasa for Igaun, he had given part of his land to Odeyale and Odeleye. I don’t know Adejonlu and Abinu. I know Odeyale. I grew up to meet him on the land.

I agree that Odeyale founded Olowotedo. Gaun (Igaun) is very close to Ogun River and about 2 miles to a place called Ibasa.

Iloba is where animals killed in the bush are roasted by the hunters. They make palm oil in all villages, and at Ibasa as well. They may have Eku (a round hold for washing palm oil seeds).

Where palm oil is made, is Ibasa truly but that place was not so named by the defendants. Ibasa is just close to the swamp. I last visited the place about one year ago when this case started.

I do not have a house at Ibasa. My father had a house when he was living then but I cannot now pin point the house.

It was in my presence (I was young) when Odeyale and Odeleye were granted land.

The defendants stopped paying Ishakole when this suit was filed – about 5 years ago. The ancestors of the defendants paid Ishakoles – even the defendants cannot deny it.

The defendants sold part of our land, including those of boundary man to one Bankole. Our boundary man was Osolewa Ajibulu, he amend the land Sola to Bankole and part of our land, over which Bankole built his house. The house was built when this dispute started. The whole dispute started about five years ago.

I saw Bankole once. We did not sue Bankole. We did not quarrel Bankole in order to avoid breach of peace.”

The 3rd PW was a boundary man and his testimony stated in part as follows:-

“I cannot talk about the exactness of the land in dispute but I only know the meeting point with Gaun.

I know Ibasa village. Gaun is my boundary man. I am not boundary man to Ibasa. Ibasa was not mentioned in my documents.

…I know all the plaintiffs, but I cannot say anything about their history or how they came to their land. I cannot say who owns Ibasa. I know Gaun owns it.

CROSS EXAMINATION

I know Igbein villages. Magoro, Makogi, Ijere, Bakuro and Ibafo are Igbein villages, but other people know how they got there. I don’t know Adejonlu, I only hear his name. Ibasa is a place where they make palm oil. I don’t know if Jacob Akinwunmi is a fisherman. I only know of Gaun village but I don’t know if a man is so called. I don’t know who established gaun.”

The 4th PW was a boundary man to the plaintiffs and stated how they sold their family land to Dr. Martins. He concluded his testimony under cross examination after stating in his evidence in chief that IBASA was ADEJONLU family land, but stated finally and in conclusion at page 85 of the record of appeal that;

“ADEJONLU HAD NO LAND IN THE LAND IN DISPUTE. WE ARE BOUNDARYMEN”

The 5th and 6th PWS testified as boundary men with Adejonlu Family as their boundary men, and that they owned Ibasa land. I have already reflected the testimony of 7th PW, the licensed surveyor through whom exhibits 2 and 3 were tendered.

The defendants called 5 witnesses, the salient pieces of evidence of defendants’ witnesses are set out seriatim.

1st defence witness a poultry farmer purchased land from the representatives of the people of Ibasa village namely, YEKU, TIAMIYU KOTOYE, SOWUNMI, who were all defendants. After the purchase, he farmed on the land since 1977, without disturbance from anybody. He applied and processed his Certificate of Occupancy, which was granted to him. His application for the Certificate of Occupancy was advertised without objection from anywhere. In cross examination, he confirmed his purchase of the land solely from defendants and denied receiving any letter from the plaintiff in 1985.

2nd DW was a farmer at Magada Atoti, near Ibasha, which farmland was owned by his family. He knew the land in dispute, which belonged to Somolu and Okuseinde, who owned Ibasa and Ajegunle villages, Magoro, Ijere, Pakuro and Mowe, were owned by Igbein people and they also rived Maguda village, where 2nd DW came from the village had a Bale appointed by Igbein people. He was cross examined and confirmed living at Magaida village.

The 3rd DW hailed from Kannakanna family that founded MAKOGI where the witness farmed. He knew the land in dispute to belong to YEKU called Ibasa. He never heard of Adeyonlu-Gaun is about 4/5 miles distance from the land in dispute. He knew Ajegunle, Ibasa, and Olowotedo villages, which were within the land in dispute and owned by defendants’ families. In cross examination, he stated as a man of 70 years old, he spoke the truth.

The 4th DW also a boundary man to defendants, stated that Magoro migrated from Igbein and Igbein people celebrate worshipping Ogun festival annually. He farmed on his land from childhood and did not know, but heard of Gaun. In cross examination, he admitted knowing Makogi people, they had a Bale. He lived at Magboro, which he inherited from his mother, he stated he might have lived in Ibasa as a young boy.

The 5th and last defence witness, was the first defendant his testimony and cross examination covered pages 96 to 101 of the record of appeal, his salient evidence reads in part:-

“I am a farmer. I have been sued by the plaintiffs. We are defending on behalf of Somolu/Okuseinde families. We employed a surveyor, late Akigbogun from Ibadan. He surveyed our land. I cannot say now, whether we gave our surveyor the plaintiff’s plan.

The land belongs to Somolu/Okuseinde. They migrated from Igbein homestead to this virgin place and inhabited it – farming and cultivating it is a long time, very well over 100 years – before my father was born.

Somolu/Okuseinde planted crops like cassava, yams, added to existing palm trees and harvesting palm fruits. The palm trees are used for making palm oil. That was why the place is called Ibasa. Those who helped in, producing the palm oil, are Somolu/Okuseindes’ wives. Somolu created a stream called Oluweri which is propiciated (worshipped) yearly with goat and pigeon. There are also Ologodo and Olokoo streams used for making palm oil while Oluweri is for drinking.

Somolu and Okuseinde have wives and children. Apart from farming and their wives and children living thereon, they built houses on the land and we have never been disturbed. Others on the land are those, who settled with them are Tork, Ogodo, Ogunmoloroko, Gbagbojo, Agasu, Sodiya, Adebanjo, Leshi, Oso, Ikanna.

When these people came to Ibasha, they were granted land by Somolu and Okuseinde and they lived with them. Apart from all these, they put and worshipped idols on the land such as Ogun, Oya, Obatala, Egun, Oro, Igunnuko, Sanpona (Baluwaiye or Baba-ni-ta).

Before they died, nobody disturbed them.

Abinu did not grant land to Somolu and Okuseinde. They were strangers and nobody knew where they came from. I never heard of the name Adejonlu never collected Ishakole. I never paid any tribute.

I know Gaun which is about 3 miles to Ibasha.

They are Yeku, Odeneye, Odeyale and Osunwede. These four children have died leaving us, the grand children behind. Somolu’s children had children. Yeku begat Mustapha. The witness (1st defendant). Odeyale begat Tiamiyu (3rd defendant).

Odeyale founded Olowotedo village and built houses there. I know Dr. Bankole Martins. I sold land to him from part of the portion sold by Somolu and Okuseinde. Since the land was sold to Bankole Martins, he rears poultry and has several buildings thereon over 10 years ago. Olaiya did not sell land to Bankole Martins. Even, Bankole will never buy land without my prior knowledge.

Somolu Okuseinde and those who settled with them are from Igbein. All the inhabitants of our area are Igbein people. Our boundary-men are Magada (Igbein people) surrounded by stream/swamp and Magboro Sofolarin. There is Ajegunle village, within the area of the land in dispute, which was established by me, Tiamiyu Kotoye and Suarawu Kotoye. We built houses in the village about 30 years. The plaintiffs never queried as to why we established in the village which is within our farm. There is Bale at Ibasha called Bamgboye, the grandson of Okuseinde. Igbein Chiefs are the authorities appointed Bale: Nobody can do anything in our area without the authority of Igbein people. All villages around us up to Iro, even Gaun are on Igbein land.

Ibasa, Gaun, Leke, Olowotedo, Ofada, Makogi, Magoro, Ibafo, Arepo, Pakuro, Mowe, Kokoloja, Obe, Desohun and orile, Igbein, all these are Igbein people.

I am from Igbehin and my great grandfather. Tiamiyu Kotoye is from Igbein.

I never suggested payment of N10.00 and palm wine. It is a lie to say that I suggested payment of any Ishakole five years ago because we have been on this case since 11 years.” How then could I suggest payment of Ishakole 5 years ago?

Chief Adeyemi Lawson did not buy the land eventually. None of the plaintiffs that I know even did anything on the land. They never farmed but fished.

I am asking the court to dismiss the plaintiffs’ claims.

CROSS EXAMINATION:

There was no quarrel as to how to share money from Chief Lawson between myself, Igbein people and the plaintiffs that sparked off any row.

It is a lie that the plaintiffs refused to share money with Igbehin people. I don’t know Adejonlu.

I don’t know where the plaintiff comes. I don’t know of the plaintiffs to worship some idols. Everybody came with his idols to wherever he goes.

I was born into these things. I don’t know where they came from.

All these idols existed before I was born.

I know Seidu. He was never a farmer. I know Makogi, Magara and Magoro. Makogi and Magara are our boundarymen. A stream separated us and Makogi.

This dispute did not rise because of any dispute on money sharing between us and Chief Lawson.

After the Gaun people had been publicly told that the land does not belong to them, thereafter, we sold land to Bankole Martins. This case started 12 years ago or even more. We sold land to Dr. Bankole Martins about 11 years.”

The learned Counsel after completion of testimonies (of 7th PWS and 5 DWS) of the parties addressed the court exhaustively and extensively with learned Counsel for the defendants, urging the court to dismiss plaintiffs’ claims as they failed to establish that defendants were their customary tenants on Ibasa, which was settled upon by ancestors of defendants. The plaintiffs and their witnesses confirmed that ODEYALE and ODELEYE the ancestors of defendants founded OLOWOTEDO and created OLUWERI stream or river, so the trial court dismiss plaintiffs’ claims.

In contrast to submission of learned Counsel to the defendant, their learned Counsel urged the court to found that plaintiffs established that it was the ancestors of the plaintiffs ABINU and ADEJONLU that first settled on the land having migrated from ILE IFE with a stop over in IJEBU-IFE, until they finally settled on the land in dispute more particularly shown in exhibit 2. He finally submitted that the learned trial Judge should grant the reliefs claimed by the plaintiffs through the power of attorney marked as exhibit 1.

The learned trial Judge took time for consideration of the case, after which he delivered his judgment on 21st day of October, 1988, covered at pages 114 to 125, of the record of appeal wherein at the conclusion he refused and rejected the claims and reliefs sought by plaintiffs for the reasons given in the said judgment. In the said judgment at pages 116, 117, 118, 119 and 120, of the record of appeal, the learned trial Judge reviewed exhaustively, the case for the plaintiffs. Similarly, at pages 120, 121, 122 and 123, the learned trial Judge reviewed exhaustively the case of the defendants. After the review and assessment of the evidence adduced before him and the law, the learned trial Judge ascribed probative value to the evidence concluded at pages 124 and 125 of the record of appeal as follows:-

“From my observations above, during the review of evidence of all the witnesses for plaintiffs and defendants, I have found that the evidence of the plaintiffs do not agree with their pleadings. Most of the witnesses particularly their principal witness 2nd PW Joseph Akinwunmi, not only gave contradictory evidence, but during cross-examination confirmed most of the assertions and claims of the defendants. I have highlighted those differences above, such as the founding of OLOWOTEDO, granting of land to Odeleye etc.

The vital point which goes in favour of the defendant, is the answer to the nature and type of Igaun people, both the plaintiffs and the defendants agree that Igaun people are fishermen live near Ogun river and although some of the plaintiffs’ witnesses, quickly added that some of the Igaun people farmed, but predominantly they are fishermen. The evidence of the defendants agreed to their claim, in that both Igaun and Ibasa are villages belonging to Igbein people, there is sufficient evidence to that effect and does not therefore, behove the plaintiffs to say that the defendants did not call Igbein people to testify. What of the particular evidence that there is a Bale at Ibassa by name Bamgboye son of Okuseinde, who derived his authority from the Igbein people, which evidence was not contradicted and which I accept.

Plaintiffs must succeed on the strength of their evidence, but on the whole, it was clear from the traditional evidence of both sides, that the evidence of the defendants by far outweighed those of the plaintiffs and that will entitle the defendants to judgment. The plaintiffs have failed to discharge the onus placed upon them.

I need not to consider anything further, since I have found in favour of the defendants but as an added buffer to the defendants. I will also assess existing factual evidence of contemporaneous acts and events (Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt.24) 626 at page 628).

The defendants gave evidence of several acts of ownership, they built houses, this was admitted by the plaintiffs even by Mr. Awoyinfa admitted this, but only said that at no time was the building of huts contrary to the terms of the grant. They created streams they worshipped idols and on top of it, they sold land to Dr. Bankole, to which the plaintiffs did not object- all these are consistent acts of ownership.

Reading through the judgment, my thoughts and findings are clear and I find in favour of the defendants. From the facts as given in evidence and also on, the points of law, the defendants would appear to have won the day, thereby, causing the plaintiffs to lose their claims which are hereby dismissed in entirety.”

Obviously, the plaintiffs were dissatisfied with the above judgments, timeously they lodged an appeal to the court through their notice of appeal at pages 126 and 127 of the record of appeal.

In the said notice of appeal, the plaintiffs henceforth, referred to in this judgment as appellants formulated 4 grounds of appeal and in accordance with the rules and practice of this court, they furnished and supplied the particulars. Appellants served the notice of appeal on the defendants, now referred to in this judgment as respondents.

In accordance with the rules and practice of this court, about brief writing especially, in the rule that in the formulation of issues for determination of the appeal, it is trite law that the issues must correlate and be based on the grounds of appeal, this rule is to cover both the appellants and respondents. Alli v. Alesinloye (2000) 6 NWLR (Pt.660) page 177 S.C, U.B.N. Plc v. Dafiaga (2000) 1NWLR (Pt.640) page 175 CA; Mobil (Nig.) Plc. v. PAM (2000) 5 NWLR (Pt.657) page 506 CA; Ikwunne v. State (2000) 5 NWLR (Pt.658) page 550 CA.; Edem v. Akamkpa L.G. (2000) 4 NWLR (Pt.651) page 70 CA. The appellants complied with the rule and predicated the issues for determination from the grounds of appeal.

In this court, appellants sought and were granted leave to amend their grounds of appeal wherein ground four is hereby set down as follows:-

“4. The learned trial Judge erred in law by giving judgment over the land in dispute, when part of the land in dispute has been acquired by the Ogun State Government.”

PARTICULARS:

(a) The acquisition was made under Ogun State Notice no. 147 published in Ogun State Gazette No. 47 Volume 11 of 20th November, 1986.”

Based on the amended notice of appeal appellants on 4th May, 2001, with the leave of this court filed appellants’ brief of argument wherein at page 3 paragraph 5, appellants raised the issues for determination in this appeal as under:-

“ISSUES FOR DETERMINATION:

(1) Whether or not, the plaintiffs have established their case by traditional evidence of settlement.

(2) Whether or not, the defendants are customary tenants of the plaintiffs.

(3) Whether the plaintiffs, who claimed to have settled long before the defendants’ ancestors or the defendants who came later, should be regarded as the original settlers on the land in dispute;

(4) Whether the issue of acquisition of part of the land in dispute as published in Ogun State Notice No. 147 published in Ogun State Gazette No. 47 Volume 11 of 20th November, 1986, be looked into as it affects the claim in this case.”

Appellants served appellants’ brief of argument on respondents who with leave of this court, filed respondents’ brief of argument on 20th September, 2001, and after stating the facts in paragraph 3 page 3 raised the issues for determination thus:-

“3.00 ISSUES FOR DETERMINATION PRELIMINARY MATTERS –

1.01 The appellants at page 3 paragraph 5.00 of their brief formulated 4 issues for determination. However, in relating the issues formulated to the grounds, the appellants muddled the whole thing together. For example, they related issues 1, 2, 3 and 5 to grounds 2 and 3, when there was no issue 5 in the issues formulated.

1.02 Furthermore, by formulating 4 issues out of two grounds, the issues have been unduly proliferated. It is settled law and practice that issues for determination must not only relate to grounds of appeal but must not be proliferated for which, see Oniah v. Onyia (1989) 1 NWLR (Pt.99) page 514, Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208; Lotus Plastics Ltd v. Nigerian Ports Plc (2001) 8 NWLR (Pt.715) page 424.

1.03 It is also clear that no issue was formulated from ground one of the grounds of appeal, the effect of which is that ground one is deemed abandoned. See generally Aromolaran v. Kupoluyi (1994) 2 NWLR (Pt.325) page 221; Melwani v. Feed Nation Ltd. (1986) 5 NWLR (pt.43) page 587.

In sub Head 11 at page 3, respondents’ brief of argument they submitted the grounds of the preliminary matters. It is pertinent to state that appellants after service of respondents’ brief of argument on them, filed no reply to brief of argument also they did not react to the notice of preliminary matter raised by respondents. So the preliminary matters shall be considered on the sole argument of respondents.

On ground 4 of the grounds of appeal, respondents complained and contended that the issue of compulsory acquisition was a non-issue in the High Court, as it was not pleaded so rightly no evidence was led or adduced on the issue. The complaint raised in the grounds of appeal not in any way arose from the judgment of the lower trial court. Therefore, the 4th ground of appeal was incompetent as it did not arise in the judgment appealed against Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt.450) page 531 at 549, Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) page 275, Akibu v. Oduntan (2000) 13 NWLR (Pt.685) page 446 SC.

I have looked critically at the pleadings of the parties, evidence adduced by the parties was the issue of acquisition by Ogun State Government raised nor pleaded before the lower court, the acquisition was a non-issue. It is trite law that both the court and the parties are bound by the pleadings unpleaded facts go to no issue Abimbola George & Anor v. Dominion Flour Mills & Ors. (1963) 1 All NLR 71 at 77 SC. (1963) 1 SCNLR 117, Ferdinard George & Anor v. U.B.A. (1972) 8-9 SC 264.

Ground 1 in amended notice of appeal raised a challenge to the jurisdiction of the High Court in this court. Appellants furnished the particulars. Regrettably no issue on jurisdiction was raised in appellants brief of argument. As no issue for determination was distilled from ground 1, it is presumed as abandoned. There is much force in the preliminary matter, that as appellants did not formulate any issue as arising from ground one it is deemed abandoned with the consequential result that the ground of appeal 1 became impotent. The submissions on the abandonment by respondents are right, ground 4 is hereby struck out as the preliminary matter on it was justifiable in law, so in my judgment, ground 4 of the grounds of appeal is struck out. Adigun v. Ayinde (1993) 8 NWLR (Pt.313) page 516, Atanda v. Ajani (1989) 3 NWLR (Pt.111) page 511, David Joshua & Anor v. State (2000) 5 NWLR (Pt.658) page 591 at page 609 CA.

As the issue of acquisition was not pleaded in the lower court and without any comment in the judgment of the lower court, such non-issue is incompetent to be argued on appeal based on the case of Oduntan v. Akibu supra, Egbe v. Alhaji (1990) 1 NWLR (Pt.128) page 546 at 590 grounds 1 and 4 are hereby, struck out.

Having struck out grounds 1 and 4, the remaining grounds left are grounds 2 and 3, from which respondents framed a singular issue thus:-

“Whether from the pleadings and totality of evidence adduced the appellants proved their case as to entitle them to the reliefs sought.”

I am more impressed with the singular issue raised by respondents as the real crux of the appeal.

Appellants argued all the issues raised by them at pages 3 and 4 of the appellants’ brief of argument and with respect written in a most inelegant manner. Appellants relied on the traditional evidence of 2nd PW and that it was sufficient to sustain the appeal.

The other aspect of argument in appellants’ brief, was the issue of acquisition as set out in paragraphs 7.08 to 7.11 at page 4 of appellants’ brief of argument, which for ease of reference are hereby set down as follows:-

“7.08 Ground 4 raises the issue of acquisition of part of the land in dispute, as published in Ogun State Notice No. 147 published in Ogun State, Gazettee No. 47 volume 11 of 20/11/86.

9.09 The acquisition was made while this action was pending.

The issue was not raised at the trial as apparently the parties were not aware of it. It is therefore, an issue that will necessitate amendment of pleadings and plans in the case so that the issue could be tried.

9.10 It is submitted that this issue makes the identity and size of the land in dispute unclear unlec (sic) it is tried and resolved.

9.11 If the learned Judge, was aware of the acquisition, and the claims of each party under the law governing the acquisition, his judgment is not likely to be the same.

In conclusion, that the appeal be allowed with an order of retrial in the High Court.”

With respect to learned Counsel for the appellants in the amended notice of appeal the relief sought was:-

“4. RELIEF SOUGHT FROM THE COURT OF APPEAL:

“TO SET ASIDE THE JUDGMENT OF THE LOWER COURT COMPLAINED OF”

There was no relief sought for retrial, the conclusion for a retrial was in sharp contrast with the relief sought on appeal, this is an exhibition of confusion and that appellants were not sure or certain as to what their appeal was about as the argument were at tangent with the issues raised in this appeal. It was proper to have struck out grounds 1 and 4 of the amended grounds of appeal as for the reasons given above in this judgment.

It is pertinent that in the lower court, the respondents did not counterclaim and also they did not cross-appeal in this court. Unlike appellants’ brief of argument, the respondent’s brief of argument was properly got up and pass for a good and excellent brief with the arguments clearly marshalled with articulate principle of law backed up with relevant authorities.

From the only issue raised by respondents, it turned out on facts, the burden of proof and whether the learned trial Judge exercised his discretion rightly in refusing the declaration for forfeiture and for dismissing the claims.

This court intentionally and advisedly reflected copiously the testimonies of the appellants and their witnesses especially the 2nd PW the principal plaintiffs/appellants and other witnesses and the 1st defendant, who testified as 5th defence witness. After which the court also reproduced the findings of fact by the learned trial Judge after a careful review and consideration of the evidence adduced before him.

The action that led to this appeal as set out in paragraphs 33 and 34 of the further amended statement of claim were civil claims with the onus on the appellants as set out under sections 135, 136 and 137 EVIDENCE ACT CAP 112 Laws of the Federation of Nigeria 1990. In the consideration of the cases of the parties as they testified the learned trial Judge applied the rule in Mogaji v. Odofin (1978) 4 SC 91, Akande v. Alagbe (2000) 15 NWLR (Pt.690) page 353 CA, Tinubu v. Khalil & Dibbo Trans Ltd. (2000) 11 NWLR (Pt.677) page 171 SC. The learned Judge concluded rightly that appellants did not discharge the burden of proof placed on appellants and based on the findings of facts dismissed the claims. The learned trial Judge also relied on his assessment and ascription of probative value based on the credibility of witnesses.

The attitude of an appellate court to findings of fact is well settled that an appeal court generally will not disturb findings of facts by the learned trial Judge unless the finding of facts are perverse.

After a careful consideration of the findings of facts as reflected in the quoted part of the judgment, I find the findings of facts not to be perverse as they were borne out from the evidence thereby, I find no legal basis to disturb them. Respondents’ argument on the findings of facts were sound and convincing they are therefore resolved in favour of the respondents. Nwokoro v. Nwosu (1994) 4 NWLR (Pt.337) page 172 CA., Sosanya v. Onadeko (2000) 11 NWLR (Pt.677) page 34 CA.

Evaluation, assessment of evidence and ascription of probative value to evidence is primarily the function of the learned trial Judge and when based on credibility of witnesses as appellate court is handicapped for lack of opportunity of seeing, hearing and watching the demeanours of the witnesses as the appeal court deals with printed record. The only way open to the appeal court to interfere is where it was established that the learned trial Judge failed to take advantage of having seen and heard the witnesses then an appeal court may interfere Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) page 704 CA; Elendu v. Ekwoaba (1998) 12 NWLR (Pt.578) page 320 SC, Woluchem v. Gudi (1981) 5 SC 291.

Applying the above settled principle to the facts of this appeal, I see no legal basis to disturb the findings of facts by the learned trial Judge that he failed to take advantage of having seen and heard the witnesses thereby the issue is resolved against the appellants but in favour of respondents. The appeal is therefore, dismissed as appellants’ issues are lacking in substance and unmeritorious.

In conclusion, this appeal is devoid of any merit as even shown in appellants’ worthless brief of argument, unlike respondent’s brief of argument, which is cogent with arguments properly articulated, marshalled out and substantial that the appeal is unmeritorious and ought to be dismissed and is hereby, dismissed by me, for the reasons advanced by me above in this judgment.

Having dismissed the appeal, I fix the cost acting judicially and judiciously, that costs follow the event and awarded to compensate the successful party and not to punish the unsuccessful party. Based upon the above guideline, respondents are awarded the costs of N10,000.00 (Ten thousand Naira) against the appellants.

Other Citations: 2002)LCN/1197(CA)