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Asani Sogunro & Ors V. Aremu Yeku & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

At the High Court of Ogun State, Otta Judicial Division, the appellants in this appeal (as plaintiffs) caused a Writ of Summons to be issued against the respondents herein (defendants). Pleadings were settled and exchanged; amended and exchanged.

The case of the appellants, as could be gleaned from Paragraph 33 of the Further Amended Statement of Claim, was expressed thus “The defendants being tenants of the plaintiffs have by their actions denied the plaintiffs’ title and have claimed ownership absolutely or through other source.” The reliefs sought were couched thus:

“34 (a) A Declaration of forfeiture of the defendants’ tenure under native law and custom;

(b) Possession of the said land.”

Seven witnesses testified in favour of the plaintiffs. On their part, the defendants’ case was put forward by their five witnesses. In his address, at the end of the oral testimonies, learned counsel for the defendants contended that the plaintiffs failed to establish that they (the defendants) were their customary tenants at Ibasa. He explained that the ancestors of the defendants settled

thereat. He pointed out that the plaintiffs and their witnesses confirmed that the ancestors of the defendants, namely, Odeyale and Odeleye founded Olowotedo and created Oluweri Stream or river.

Contrariwise, learned counsel for the plaintiffs urged the Court to find that they made out a case that it was the plaintiffs’ ancestors, namely, Abinu and Adetonlu, who first settled on the land, having migrated from Ile Ife, stopping over at Ijebu Ode. They finally, settled down at the land in dispute. In its judgment of October 21, 1988, the Court, (hereinafter referred to as “the trial Court”), dismissed the plaintiffs claim.

Like the trial Court, the Court of Appeal (hereinafter, simply, referred to as “the lower Court”), also dismissed the Plaintiffs’ appeal to it from the said judgment.

This further appeal to this Court is the appellants’ expression of their disavowal of the validity of the reasoning of the lower Courts judgment. Although three issues were originally formulated in the brief of argument filed on May 14, 2012, learned counsel for the appellants abandoned the second and third issues at the hearing of the appeal on November

29, 2016.

They were accordingly, struck out. In effect, only the sub-joined first issue is outstanding in the appellants’ favour:

Whether the lower Court have (sic) sufficiently considered the findings of the trial Court as to the establishment by the respondents of long settlement on the disputed land their root of title by way of long settlement or sufficient traditional evidence

On his part, learned counsel for the respondents formulated two issues. As a logical corollary to the approach of the learned counsel for the appellants, he [the respondents’ counsel], also abandoned the second issue in the brief filed on March 30, 2015, although deemed properly filed on November 29, 2016. Thus, only the first issue in the said brief is outstanding in favour of the respondents. It was framed thus:

Whether having regarding (sic) to the pleadings and totality of evidence adduced, the Court below was right in the (sic) dismissing the appellants’ appeal

My Lords, in my humble view, the phraseology of the outstanding issue one in the respondents’ brief is more felicitous than the woolly tenor of the appellants’ outstanding issue.

Above all, it is even more succinct and more precise apropos the appellants’ main grouse against the judgment of the lower Court. It will accordingly, be adopted if the determination of this appeal. Thus, the issue for determination is:

Whether having regard to the pleadings and totality of evidence adduced, the Court below was right in dismissing the appellants’ appeal

Before dealing with this issue, it would be necessary to dispose of the Preliminary objection of the respondents. The gist of the said objection, argued on page 3-5 of the respondents brief, was that the appellants’, in their Ground Four of the Notice and Grounds of Appeal, raised the issue of acquisition for the first time without obtaining the leave of Court.

It was pointed out that, at the lower Court, the respondents canvassed the same objection: an objection which the said lower Court upheld. Learned counsel submitted that the only option left for the appellants was to challenge the lower Courts order striking out the said ground by complaining against it. He cited several cases on the point that the ground formulated on the said question of

acquisition before this Court neither arose nor emanated from the lower Court’s decision, paragraphs 5.3, page 4 of the respondents’ brief.

The appellants attempted to debunk these arguments in their Reply brief deemed properly, filed on November 29, 2016.

Like the respondents/objectors, the appellants too placed reliance on so many decided cases.

Without much ado, there is no gainsaying the fact that this objection was well-taken. Indeed, it may only suffice to refer to the view of the lower Court on this point. According to the Court:

As the issue of acquisition was not pleaded in the lower Court and without any comment in a (sic) judgment of the lower Court, such non-issue is incompetent to be argued on appeal based on the case (sic, cases) of Akibu v. Oduntan (2000) 7 SCNJ 189; Egbe v. Alhaji (1998) 1 NWLR (pt 128) 540, 598.

(Page 181 of the record)

In the first place, as the question of acquisition was not pleaded it went to no issue, Onwuka v. Omogui (1992) 3 NWLR (pt. 230) 393. The explanation is simple. Once pleadings are ordered, filed and exchanged, the parties, and indeed the Courts, are bound by them. The

implication, therefore, is that evidence must be led in accordance with the averments therein. That explains the impregnable prescription that evidence which is not in conformity with the pleadings go to no issue, Okoro v. Dakolo (2006) LPELR -2461 (SC) 19-20.

This ubiquitous principle in the vocabulary of pleadings applies with equal force whether the pleadings and evidence are those of the plaintiff or the defendants, Akinloye v. Eyiyola (1968) NWLR 92, 95; Alli v. Alesinloye (2000) FWLR (pt. 15) 2610, 2653, D – H; [2000] 6 NWLR (pt. 660) 177; Obulor v. Obiora (2001) 4 SC (pt. 1) 77, 79-80; (2000) 8 NWLR (pt.714) 25.

As this Court had once, explained, the rationale behind this principle of law is that by our adversary system of civil procedure in the High Court, facts are first erected on the pleadings before the trial of the case. This is to foreclose the likelihood of springing surprises at the trial and to circumscribe the compass or breadth of divergences. This inviolable or sacrosanct rule is only subject to the fairly liberal rules appertaining to the amendment of pleading.

Thus, if and when parties join issues in the settled pleadings;

amend and join issues on their amended pleadings, thenceforth, they are bound by them and so they cannot orbit outside the compass of the issues so joined in search of more luxuriant facts, Okoro v. Dakolo (supra) 42-43, paragraphs D-A; Eze and Ors v. Atasie and Ors (2000) FWLR (pt 13) 2180, 2189; (2000) 10 NWLR (pt 676) 470; Enegokwe v. Okadigbo (1973) 4 SC 113; Obimiami Brick and Stone (Ng.) v. A.C.B. Ltd. (1992) 3 NWLR (pt.229) 260; Akinterinwa and Anor v. Oladunjoye (2000) LPELR 358 (SC) 18; Aminu and Ors v. Hassan and Ors (2014) LPELR – 22008 (SC) 24, A- C; Idahosa v. Oronsaye (1959) 4 FSC 166; [1959] SCNLR 40.

Others include, NIPC Ltd v. Thompson Organisation Ltd (1969) NMLR 99, 104, (1969) 1 All NLR 138; Ogbodo v. Adelugba (1971) 1 All NLR 68; Ipinlaiye II v. Olukotun (1996) 6 NWLR (pt. 453) 148, 165 – 166; Paul v. George (1959) SCNLR 510; Ajoke v. Oba (1962) 1 SCNLR 137; George v. UBA Ltd (1972) 8 – 9 SC 284, 274; Njoku v. Eme [1973] 5 SC 293; Oke-Bola v. Molake [1975] 12 SC 61.

What is more, as learned counsel for the Objector pointed out, without the leave of Court such a fresh issue cannot be taken up on appeal. The cases on this point are

too many that they need not delay us here. Howbeit, one or two of them may be cited, Ejiofodo v. Okonkwo [1982] 11 SC 74; Agbiti v. NA (2011) LPELR – 2994 (SC); Stirling SC Eng (Nig) Ltd v. Yahaya (2005) LPELR -3118 (SC); Gwede v. INEC and Ors (2014) LPELR -23763 (SC); Edjekpo and Ors v. Osia and Ors (2007) LPELR – 1414 (SC); Ibrahim v. Lawal (2015) LPELR -24736 (SC): Dagaci of Dere and Ors v. Dagaci of EBWA and Ors (2006) LPELR -911 (SC); Petrojessica Ent. Ltd and Anor v. Leventis Tech Coy. Ltd (1992) LPELR – 2915 (SC).

In all, I find sufficient merit in the respondents’ Preliminary Objection and I accordingly, sustain and uphold it. In consequence, I hereby strike out Ground One of the Notice of Appeal for being incompetent.

ARGUMENTS ON THE SOLE ISSUE FOR DETERMINATION

SOLE ISSUE

Whether having regard to the pleadings and totality of evidence adduced/ the Court below was right in dismissing the appellants’ appeal

APPELLANTS’ CONTENTION

At the hearing of this appeal on November 29, 2016, learned counsel for the appellants, R. O. Sadik, adopted the appellants’ brief of argument, which as shown above, was deemed, properly

filed on November 29, 2016. He equally, adopted the reply brief deemed properly filed on November 29, 2016. He relied on the arguments on both processes as his argument in the appeal.

It was contended that the traditional history of the appellants reveals that their great ancestor known as Abinu was the first person to settle on the land in dispute, citing Ogedengbe and Ors v. Balogun and Ors (2007) 3 SC (pt 11) 71, 79. In counsel’s submission, a claim of title must be made with certainty in a defined area. As such, before a declaration of title could be made, the land to which it relates must be ascertained with certainty.

Learned counsel pointed out that the appellants, at the trial, gave un-contradicted evidence that the said Abinu migrated from Ile – Ife and finally settled on all that parcel of land at Igaun which includes Ibasa which is the land in dispute. He further pointed out that the appellants established by evidence that the respondents and their forefathers were paying yearly tributes to the appellants and only stopped such tributes when the appellant instituted this case at the trial Court. Somewhat, most curiously, although counsel

abandoned the third issue which was on acquisition, he failed to abandon submissions on it on paragraphs 5.4 -5.7 of the brief. Be that as it may, having struck out that issue, these arguments go to naught.

He inveighed against the lower Court’s judgment which, in his submission, neglected the question of identity of land, contending that the identity of the land in dispute is not only crucial but has to be determined first before the issue of title to land, citing Balogun v. Akanji (2005) 3 – 4 SC 95 which relied on Idundun v. Okumagba [1976] 9-10 SC (Reprint) 140; (1976) 9-10 SC 27 on the five methods of proving ownership of land. He finally, cited Kojo II v. Bonsie and Anor (1957) 1 WLR 1223, 1226.

On the question of customary tenancy, it was submitted that a customary tenant is entitled to use and occupy, subject to payment of rent and good behaviour; a claim by a tenant to share common or equal rights with the landlord or overlord is against allodial rights and the territorial duty of the tenant to pay rent to the allodial owner, Archibong and Ors v. Ita and Ors (2004) All FWLR (pt 199) 930, 960.

Counsel maintained that where the

respondents as customary tenant to the appellants fail to pay their rent, they are bound to forfeit such once there is a breach of the incidence of tenancy and the tenant would be liable to be visited with the punishment of forfeiture, Okpala and Ors v. Okpa and Ors (2005) 1 SC (pt 111) 25, 34. As pointed earlier, although counsel abandoned the third issue of acquisition, he failed to apply to have the arguments on it in the brief (paragraphs 2.14 2.23, pages 4-5) to be struck out. He urged the Court to allow the appeal.

SUBMISSIONS OF THE RESPONDENTS

Dele Oloke, Learned counsel for the respondents, adopted the brief filed on March 30, 2015, although deemed filed on November 29, 2016. In the said brief, it was pointed out that the appellants, by their pleadings and evidence, predicated their case on traditional evidence of settlement. In addition, they averred that the respondents were their customary tenants, citing paragraphs 5-8 of the Further Amended Statement of Claim, pages 65 -69 of the record.

Counsel drew attention to paragraph 6 of the Further Amended Statement of Defence, page 53 of the record. He explained that the

respondents therein denied the issue of customary tenancy. They, in fact, pleaded that their ancestors, Somolu and Okuseinde, who came from Igbein, originally settled at the vast area of land which included the land in dispute.

He pointed out that the evidence of the appellants PW2 was at variance with the averments in paragraph 6 of the Further Amended Statement of Claim that it was Adejonlu that granted land to the respondents’ predecessors-in-title and not Abinu as PW2 claimed in his testimony. Counsel, further pointed out that the evidence of PW2, at page 79 of the record, to the effect that Odeyale founded Olowotedo was also at variance with the averment in paragraphs 6 and 7 of the Further Amended Statement of Claim that Odeyale came to settle with Adejonlu at Olowotedo. He accordingly, invited the Court to hold that the above pieces of evidence, at variance with the pleadings, must be discountenanced, Ademoso v. Okoro (2005) All FWLR (pt 227) 844; Orizu v. Anyaegbunam (1978) 5 SC 21.

He canvassed the view that since, from the testimony of PW2, Odeyale, actually, founded Olowotedo and thus, was not the appellants’ customary

tenants, that evidence decimate the foundation of their claim woven around customary tenancy.

Turning to the appellants traditional evidence, counsel drew attention to the evidence elicited from PW1 under cross examination to the effect that Ibasa is the location where hunters roast animals which they kill in the bush. In addition, that palm oil is processed in Ibasa. He also referred to page 84 of the record where PW3 admitted that Ibasa is a place where they make palm oil. He pointed out the consistency of these pieces of evidence with the averments in the respondents’ pleadings and indeed vindicated the meaning which the respondents ascribed to Ibasa in paragraph 9 of their Further Amended Statement of Defence, page 53 of the record. In his submission, that also exposed the inconsistency in the appellants’ traditional evidence: a situation which is at odds with the settled position that for traditional evidence to sustain a claim for declaration of title, it must be cogent, direct and positive, Olujebu of Ijebu v. Osho Eleda of Eda [1973] 2 SC 143; Ogun v. Akinyelu (2005) All FWLR (pt 243) 601. On the contrary, where evidence of traditional

history is contradictory and incredible, it would be treated as unreliable and must hence be rejected and the action is liable to be dismissed, Salami v. Gbodoolu (1997) 4 NWLR (pt 499) 277.

Expectedly, counsel endorsed the approach (page 8 of the respondents’ brief) of the trial Court at page 124 and 125 of the record: an approach which was affirmed by the lower Court. He noted that the submissions at page 5.01 of the appellants’ brief, on the identity of the land in dispute, bear no relationship with Grounds 1 and 2 of the Notice and Grounds of Appeal and the issues framed therefrom.

Against the background of the evidence on record and the concurrent findings thereon, he derided the sustainability of the appellants’ claim that their progenitor, Abiru, migrated and settled at Gaun which includes Ibasa. He maintained that the lower Court considered the pleadings, evidence on record and the trial Court’s findings thereon and affirmed the said findings, citing Onalaja JCA (pages 9 and 10 of the respondents’ brief). He urged the Court to resist the temptation of interfering with the said concurrent findings, Kalango v. Governor of Bayelsa State<br< p=””

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(2009) All FWLR (pt 476) 1839.

RESOLUTION OF THE SOLE ISSUE

My Lords, permit me to point out, by way of prefatory remarks, that this Court has warehoused an impressive corpus of jurisprudence on the genre of the accepted mode of establishing title to land known as traditional evidence or traditional history, Ohiaeri and Anor v. Akabueze and Ors (1992) LPELR -2360 (SC) 39; Alade v. Awo (1975) 4 SC 215; Idundun v. Okumagba (1976) 1 NMLR 206.

This sort of evidence, namely, traditional evidence, which, in actuality, is a bit of ancient history, is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such and, Dike and Ors v. Nzeka and Ors (1986) LPELR – 945 (SC) 23 -24; D-A.

Somewhat most intriguingly, even very senior counsel do no not seem to appreciate that, in a strict sense, that type of evidence (traditional evidence) is no more than hearsay evidence, Alade v. Awo (1975) LPELR 400 (SC) 12. True indeed, it is hearsay upon hearsay, Alade v. Awo (supra); Obasi and Anor v. Onwuka and Ors (1987) LPELR – 2152 (SC) 6- 7.

This must be so because it deals with events which occurred long ago, and the history of which has been handed down from father to son, or from generation to generation, Alade v. Awo (supra); Obasi and Anor v. Onwuka and Ors (supra).

Almost always, the rights which the parties seek to establish by traditional evidence are such as had existed outside living memory or that “existed beyond the time of living memory”, per Lord Cohen in The Stool of Abinabina v. Enyimadu Vol XII WACA 171, 172 (italics supplied).

It is against this background that Courts have recognised the obvious fact that the witnesses, who are called upon to give traditional evidence, would not necessarily be in a position to give an eye-witness account. Invariably, such witnesses cannot speak from personal knowledge as they merely repeat the story which their ancestors had told them. That notwithstanding, the Law, in its wisdom, allows such evidence, most probably, in view of the fact that much of our past is practically unrecorded, Dike and Ors v. Nzeka and Ors (supra) 12, paragraphs A – F. Clear evidence of the wisdom of the Law in this regard could be found in Section 44

of the Evidence Act (applicable at the material time; now, Section 66 of the Evidence Act, 2011) which delisted this category of evidence from the hear-say rule and elevated it to the status of admissible evidence, Obasi and Anor v. Onwuka and Ors (supra).

This is the background to the prescription which has crystallised from decided cases that, once traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof, Akinyili v. Ejidike [1996] 5 NWLR (pt.449) 381, 417; Balogun v. Akanji [1988] 1 NWLR (pt.70) 301; Amajideogu v. Ononaku (1988) 2 NWLR (pt.78) 614.

In consequence, where a Court finds evidence of traditional history to be cogent, neither contradictory nor in conflict or competition with that of the defendant, and accepts it, it would be sufficient to support a claim or declaration of title to land, Adesanya v. Aderonmu and Ors (2000) LPELR – 1450 (SC) 19; A-C; Alade v. Awo (1975) 4 SC 215, 228; Olujebu of Ijebu v. Oso, The Eleda of Eda (1972) 5 SC 143, 151; Nwosu v. Udeaja (1990) 1 NWLR (Pt.125) 188; Idundun v. Okumagba (1976) 9-10 SC 227; Aikhionbare -Ohen -Eriaria of Evboriara and Ors

Omeregie Enogie of Ev Buoba – Ohen Village and Ors (1916) LPELR -271 (SC) 18, paras. B-C; Alli and Anor v. Alesinloye and Ors (2000) LPELR – 427 (SC) 83, B-D; Akhionbare v. Omoregie (1976) 12 SC 11 at 27.It has to be emphasised, however, that these broad prescriptions are hedged around with qualifications. Thus, it is now been settled that traditional evidence must be such as to be consistent and properly link the plaintiff with the traditional history relied upon, Owoade v. Omitola (1988) 2 NWLR (pt.77) 413. Above all, it is not sufficient for a party who relies for proof of title to land on it [traditional evidence], as in the instant case, to merely prove that he or his predecessor in title had owned and possessed the land from time immemorial, Akinloye v. Eyiyola (1968) NMLR 92; Olujinle v. Adeagbo [1988] 2 NWLR (pt. 75) 238; Adejumo v. Ayantegbe (1989) 3 NWLR (pt.110) 417; Anyanwu v. Mbara (1992) 5 NWLR (pt. 242) 386, 399; Alli and Anor v. Alesinloye and Ors (2000) LPELR – 427 (SC) 27 – 28, E-B.

Such a party is bound to plead such facts as (1) who founded the land; (2) how the land was founded and (3) the particulars of the intervening

owner through whom he claims, Akinloye v. Eyiyola (supra); Olujinle v. Adeogbo (supra); Adejumo v. Ayantegbe (supra); Anyanwu v. Mbara (supra) 386, 399; Alli and Anor v. Alesinloye and Ors (supra) 27 – 28, E-B.

And now this! Where such a party projects two competing histories of his ownership in support of his claim, he would have failed to prove the case he set out to propound. If he is the plaintiff, his claim must be dismissed. If he is the defendant, he would have failed to make out a defence against the traditional history of the plaintiff, Ohiaeri and Anor v. Akabeze and Ors (1992) LPELR -2360 (SC) 19, A – C.

HOW DID THE APPELLANTS FARE AT THE LOWER COURTS

As indicated at the outset of this judgment, issues were joined in the settled pleadings; pleadings which were exchanged; amended and exchanged. While the appellants (as plaintiffs) wove their case around the testimonies of their seven witnesses, the respondents (as defendants) put across their defence through the testimonies of their five witnesses.

Did these witnesses of the appellants (as plaintiffs) fare well apropos the averments in the pleadings I would at this point, invite

the trial Court and the lower Court to answer the question.

First, the trial Court. After summing up the case of the plaintiffs (now, appellants), as put forward by the PW2, “the plaintiffs’ principal witness,” pages 115 of the record, the Court found that:

“this witness did not give sufficient historical and traditional evidence. Being a principal witness, his evidence was comparatively terse when compared with that of the key witness of the defendant. His cross examination revealed much more which I will highlight in this review of evidence.”

(italics supplied for emphasis)

The Court went ahead to highlight what it referred to as the “concessions” of the said witness, (page 116 of the record). It then, proceeded, in tandem with the age-long rule in Mogaji and Ors vs Odofin and Ors (supra) to weigh witnesses of the parties on an imaginary scale, (page 116-123 of the record). It announced its findings thus:

“From my observations during the review of the evidence of all the witness 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 principle witness, second 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 such as the founding of Olowotedo, granting of land to Odeleye.

The vital point which goes in favour of the defendants is the answer to the nature and type of Iganun people. Both the plaintiffs and the defendants agree that Iganun people are fishermen, live near Ogun river and although some of the plaintiffs’ witnesses quickly added that some of the Iganun people farmed but predominantly they are fishermen. The evidence of the defendants agreed to (sic) their claim in that both Iganun and Ibassa are villages belonging to Igbein people. There is sufficient evidence to that effect. 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

It was clear from the traditional evidence of both parties that the evidence of 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 on them

I will also assess existing factual evidence of contemporary acts and events The defendants gave evidence of several act of ownership, they built houses, this was admitted by the plaintiffs. Even by (sic) Mr Awoyinka admitted this They elected 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 and of ownership.”

(pages 124 -125 of the record, italics supplied for emphasis)

The lower Court affirmed these findings. Speaking for the said Court, Onalaja, JCA, found that:

“..In the consideration of the cases of the parties as they testified, the learned trial Judge applied the rule in Mogaji v. Odofin (1973) 3-4 SC 91 The learned (sic) Judge concluded rightly that [the] appellants did not discharge the burden of proof placed on appellants (sic, them) and based on the findings of facts dismissed the claims. The learned trial judge also relied on the assessment and ascription of probative value based on the credibility of witnesses.

After a careful

consideration of the findings of facts I find the findings of facts not to be perverse as they were borne out from the evidence.

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, an appellate Court is handicapped for lack of opportunity of seeing, hearing and watching the demeanours (sic) 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 [1998] 12 NWLR (pt 573) 320: Woluchem v. Gudi (1981) 5 SC 291.”

(Page 183 of the record; italics supplied)

Now, it is evident that the concurrent findings of the lower Courts were firmly, anchored on the redoubtable decisions of this Court. As shown above, it has been tolerably settled that if and when parties join issues in the settled pleadings; amend and join issues on their amended pleadings, thenceforth, they are bound by them and so they

cannot orbit outside the compass of the issues so joined in search of more luxuriant facts.

In one word, evidence (and this was the concurrent findings of the lower Courts with regard to the testimonies of the plaintiffs/appellants witnesses) which is at variance with the pleadings go to no issue, Okoro v. Dakolo (supra) 42-43, paragraphs D-A; Eze and Ors v. Atasie and Ors (supra) 2180, 2189; Emegokwe v. Okadigbo (supra); Obimiami Brick and Stone (Nig.) v. A.C.B. Ltd (supra); Akinterinwa and Anor v. Oladunjoye (supra); Aminu and Ors v. Hassan and Ors (supra); Idahosa v. Oronsaye (supra); NIPC Ltd. v. Thompson Organisation Ltd (supra); Ogbodo v. Adelugba (supra); Ipinlaiye II v. Olukotun (supra) 165 – 166; Paul v. George (supra); Ajoke v. Oba (supra); George v. UBA Ltd (supra); Njoku v. Eme (supra); Oke-Bola v. Molake (supra).

With regard to the question of traditional evidence of the plaintiffs/appellants, the trial Courts findings, affirmed by the lower Court, were that:

“Most of the witnesses, particularly, their principal witness, second 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 such as the founding of Olowotedo, granting of land to Odeleye.

There is sufficient evidence to that effect. 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

It was clear from the traditional evidence of both parties that the evidence of 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 on them”

(pages 124 -125 of the record; italics

supplied for emphasis)

Again, these findings are in the good and cherished company of the attitude of this Court to the mode of establishing title to land by traditional evidence. As already shown above, traditional evidence must not only be cogent; it must neither be contradictory nor in conflict or competition with that of the defendant for the Court to accept it before it would be sufficient to support a claim or declaration of title to land.

This, according to the lower Courts, the plaintiffs/appellants failed to do; hence, their case was righty dismissed, Adesanya v. Aderonmu and Ors (supra), Alade v. Awo (supra); Olujebu of Ijebu v. Oso, The Eleda of Eda (supra), Nwosu v. Udeaja (supra); Idundun v. Okumagba (supra); Aikhionbare -Ohen – Eriaria of Evboriara and Ors v. Omeregie Enogie of Ev Buoba – Ohen Village and Ors (supra), Alli and Anor v. Alesinloye and Ors (supra); Akhionbare v. Omoregie (supra).

Worse still, as the trial Court found at page 125 of the record; a finding affirmed by the lower Court “The plaintiffs have failed to discharge the onus placed on them.” True, indeed, they (plaintiffs/appellants) underrated the

enormity of the onus on them for their traditional evidence, as the trial Court found, was not only inconsistent; their so-called traditional evidence was not properly linked with them (plaintiffs), Owoade v. Omitola (supra).

Even then, there was another glaring omission in the case of the plaintiffs/appellants. The rationale of all binding authorities is that it is not sufficient for a party (such as the appellants herein) who relied for proof of title to land on it (traditional evidence) to merely prove that he or his predecessor in title had owned and possessed the land from time immemorial, Akinloye v. Eyiyola (supra): Olujinle v. Adeogbo (supra); Adejumo v. Ayantegbe (supra); Anyanwu v. Mbara (supra): Alli and Anor v. Alesinloye and Ors (supra).

Simply put, they (the plaintiffs/appellants) failed to discharge the burden of proof on the pleadings as required of claimants of title to land through traditional evidence, Akinloye v. Eyiyola (supra); Olujinle v. Adeogbo (sutra); Adejumo v. Ayantegbe (supra); Ayanwu v. Mbara (supra); Alli and Anor v. Alesinloye and Ors (supra). Little wonder then why the trial Court found that the principal witness,

PW2, “did not give sufficient historical and traditional evidence. Being a principal witness, his evidence was comparatively terse when compared with that of the key witness to the defendants,” (page 116 of the record; italics supplied for emphasis).

Finally, attention may now be drawn to the finding of the lower Court that “[t]he learned trial Judge also relied on the assessment and ascription of probative value based on the credibility of witnesses,” (page 183 of the record, italics supplied for emphasis).

My Lords, since trial Court’s ascription of probative value was based on the credibility of witnesses, I have an obligation to remind Your Lordships that every trial Judge is in a better position than the appellate Court to decide the issue of credibility of the witnesses. The reason is not farfetched. He (the trial Judge) has the singular advantage of seeing and observing the witnesses. He watches their demeanour; candour or partisanship; their integrity and manners. These advantages are not normally enjoyed by an appellate Court which only has the cold printed evidence to contend with, Nwankpu and Ors v. Ewulu and Ors (1995) LPELR -2107 (SC) 32, A- B.

What is more, as a vital area of credibility, it is only the trial Court which saw and watched the demeanour of the witness that has the exclusive role of watching the mannerism, habits and idiosyncrasies of the witness and attach probative value to the evidence presented before it, Kaydee Ventures Ltd v. The Hon. Minister, FCT and Ors (2010) LPELR – 1681 (SC) 60, C- E; Makanjuola v. Balogun (1989) 3 NWLR (pt. 108) 192, 218; Atolagbe v. Shorun [1985] 1 NWLR (pt 2) 60; Duru v. Nwosu [1989] 4 NWLR (pt 113) 24, 39; Lagga v. Sarhuna (2008) LPELR 1740 (SC) 66, A- E.

This is the basic premise that yielded the logic in the reasoning of the decisions of this Court that where the issue is that of credibility of witnesses, the appellate Court has a very limited, if any, scope to interfere. Thus, it (the appellate Court) can only do so when the trial Court decided to believe a witness quite contrary to the trend of accepted evidence or where oral testimony is contrary to the contents of a written document, Ndukwe v. Acha and Ors (1998) LPELR -1977 (SC) 14, A-B; Agbonifo v. Aiwereoba and Anor (1988) 1 NSCC 237, 245; (1988) 1 NWLR (pt.70) 325.

In effect, therefore, unless the trial Court adduces a wrong reason for believing or disbelieving a witness, an appellate Court would seldom, interfere with its ascription of credibility to witnesses. Put differently, it is only where the appellate Court, either because the reasons given by the trial Judge are not satisfactory or because it unmistakably, so appears from the evidence, is satisfied that the trial judge has not taken proper advantage of his having seen and heard the witnesses, that it could properly interfere. In such a case, the matter would then become at large in the appellate Court. This is as much a settled principle of English Law, Watts (or Thomas) v. Thomas (1947) 1 All ER 582 as it is a settled position in this country, Nwankpu and Ors v. Ewulu and Ors (1995) LPELR – 2107 (SC) 32, C- E.

Instructively, the lower Court, prior to its affirming of the position of the trial Court, gave a careful consideration of the findings of facts. It found the findings of facts not to be perverse as they were borne out from the evidence.” (page 183 of the record). It rightly, concluded that:

“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, an appellate Court is handicapped for lack of opportunity of seeing, hearing and watching the demeanours (sic) 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 (1998) 12 NWLR (pt. 573) 320; Woluchem v. Gudi (1981) 5 SC 291.

(page 183 of the record; italics supplied)

As the appellants did not succeed in impeaching the concurrent findings of the lower Courts by accentuating their perversity, I have no justification for interfering with them, Afolayan v. Ogunrinde and Ors (1990) LPELR – 198 (SC) 20 – 21, F-B; Enang v. Adi (1981) 11-12 S.C.25, 42; Okagbue v. Romaine (1982) 5 SC 133, 170-171; Lokoyi v. Olojo (1983) 8 SC 861, 68-73; (1983) 2 SCNLR 127; Ojomu v. Alao (1983) 9 SC 22, 53; (1983) 2 SCNLR 156; Alade v. Alemuloke [1988] 1 NWLR (pt. 69) 207, 212. In all, I find no scintilla of merit in the

appellants’ complaint against the judgment of the lower Court. I therefore unhesitatingly enter an order dismissing this appeal.

Appeal dismissed.

SC.218/2004

Asani Sogunro & Ors V. Aremu Yeku & Ors (2017) LLJR-SC

Asani Sogunro & Ors V. Aremu Yeku & Ors (2017)

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