Azeez Akeredolu & Ors. V. Lasisi Akinremi & Ors. (1986) LLJR-SC

Azeez Akeredolu & Ors. V. Lasisi Akinremi & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

The appellants herein, as plaintiffs, on behalf of themselves and the members of Ilugba family of Iga Ilugha, Otta, instituted an action against the respondents in the High Court at Ilaro Egbado, Abeokuta Judicial Division of Ogun State, claiming in their Amended Writ of Summons as follows:

“1. Declaration of title to the piece or parcel of land situate lying and being along Lagos/Abeokuta Road, Otta, Ogun State.

2. N200.00 (Two Hundred Naira) damages for trespass committed by the defendants for entering, surveying and clearing the land without the permission, consent or approval of the plaintiffs sometimes in 1976.
3. Injunction to restrain the defendants, their privies, servants or agents from committing further trespass on the land or alienating the land.
4. An order of Forfeiture against the 1st to 4th defendants of whatever right or interest they have in any part of the land in dispute. Annual value of the land is N20.00.”

The plaintiffs’ case, briefly put, was that some 200 years ago, their ancestor – Ogundamija Amore, migrated from Ile-lfe to Otta where he put up for some time with one Elerinko. It was their case that later Elerinko showed a parcel of virgin land to their ancestor on which he eventually settled, and which place became known as ILUGBAMI. Amore, with his three children built a house on the land which was not partitioned. The 1st, 3rd and 4th plaintiffs claimed to be descendants of Amore. They also claimed that in exercising their rights of ownership, their ancestors granted parcels of land to various people including the ancestors of the 2nd, 3rd and 4th defendants. It was also their case that one of their ancestors, Bamgbowu, sold a portion of the land to one Oyatogun in 1938 who later sold it to Amodu Igbira. Amodu Igbira is the 9th p.w. They finally averred that in 1976, the 1st – 6th defendants sold part of the land to 7th defendant and contended that they had no right to do so. The area in dispute is shown in ‘Green’ in Exhibit ‘A’.

The defendants’ case on the other hand, was that the land in dispute was part of a large area of land originally settled upon by one Elo Oja who was their ancestor, and who had migrated to the place from Ile-Ife over 250 years ago. It was their case that Elo Oja built a house on the land and cultivated part of it. They claimed that the place later developed into a village called Oja Village which was so named after its founder. The village, however, later became known and called Isorosi village because of a popular Bale by name Isorosi who was the son of Fabi. They averred that about 50 years ago, members of the defendants’ family erected a mosque on part of the land which mosque was rebuilt about 10 years ago. They claimed that the children of Elo Oja – Oyege, Odu Okita, Bankole, Odugbayi and Telika – are their ancestors.

Before the conclusion of the hearing, on the application of the plaintiffs’ counsel, the learned trial Judge visited the locus in quo. At the conclusion of the trial and counsel’s final addresses, the learned trial Judge meticulously reviewed the totality of the evidence adduced by both parties. He then considered which of the parties, on the evidence before him, had successfully established his claim to the land in dispute in any of the various ways for acquiring title to land enunciated by this court in Idundun & Ors. v. Daniel Okumagba (1976) 9/10 S.C. 227. He thereafter made some specific findings of fact in his judgment. With regard to the traditional evidence adduced by the parties, he concluded as follows:-

“There is abundant evidence from the plaintiffs’ witnesses and the defendants’ witnesses that the 1st, 2nd, 3rd, 4th and 6th defendants have farms on the land in dispute. The 7th plaintiff witness also said that the 5th defendant has farm on the land in dispute. It is significant that the plaintiffs did not show that the 1st, 2nd, 3rd, 4th and 5th defendants have farms on the land in dispute. The defendants not only showed that they have farms on the land in dispute but on the land around the land in dispute. On the whole, I hold the view that the plaintiffs have not proved their claim to the land in dispute by traditional evidence.”

As to whether the plaintiffs had led evidence of acts of ownership extending over a sufficient period of time, which were numerous and positive enough to justify the inference that they were the owners of the land in dispute, he came to the conclusion that, on the evidence adduced, they had not done so. With regard to acts of long possession and enjoyment of land which may be prima facie evidence of ownership, his finding was:-

“The evidence before the Court is to the effect that it is the defendants who have been in possession and enjoyment of the land for a long time.”

He also considered proof of ownership as provided for in Section 45 of the Evidence Law and came to the conclusion that, on the evidence of the plaintiffs’ 4th witness – Karimu Okoosi, who in his cross-examination admitted buying a farm land from a member of the defendants’ family, which farm land was within the land in dispute, the probability was that the defendants owned the land in dispute. He finally arrived at the conclusion that in his judgment the plaintiffs “have not established their case within Section 134 of the Evidence Act.” He accordingly dismissed the plaintiffs’ case in its entirety.

Being dissatisfied with the decision of Delano, J., the plaintiffs appealed to the Court of Appeal on a number of grounds, and that Court, in a unanimous judgment delivered on the 10th of April, 1985, dismissed their appeal and affirmed the decision of Delano, J.

Against the judgment of the Court of Appeal, appellants have, with the leave of the Court, filed the following grounds of appeal:-

“GROUNDS OF APPEAL

1. The Court of Appeal erred in law in upholding the finding of the learned trial Judge to the effect that the land claimed by the plaintiffs is not certain when an action for declaration of title is an action in personam and hence the fact that it is shown that one of the parties to the action had sold the land to a third party is generally irrelevant unless the other party is relying on the title of that third party.
2. Having found that there was justification for the criticism of the appellants’ counsel regarding the inferences drawn by the learned trial Judge from his visit to the locus in quo, the Court of Appeal erred in law in failing to set aside the proceedings and judgment for the aforesaid irregularity.
3. The Court of Appeal further erred in law in holding that the decision of the learned trial Judge to disregard any evidence in support of the Reply did not cause any actual miscarriage of justice when it is patent that there must have been miscarriage of justice.
4. The Court of Appeal was wrong on the facts to have upheld the findings of fact of the learned trial Judge.”

Briefs of argument were filed by both parties and were relied upon in oral argument before the Court. Arising from the grounds of appeal, the issues for determination as set out in the brief of Chief Williams, S.A.N., for the appellants, are as follows:-

“1. Whether the Court of Appeal had correctly dealt with the plaintiffs’ complaint that evidence relating to the facts alleged in the Reply was wrongly ignored by the High Court.

2. Whether the Court of Appeal was correct to have upheld the findings of fact of the learned trial Judge.
3. Whether the Court of Appeal was correct in upholding the decision of the High Court that the sale of land (by the plaintiff) within the piece of land to which they were claiming declaration of title was fatal to their claim for such declaration.
4. Whether the Court of Appeal had properly and adequately dealt with the complaint of the plaintiffs relating to the inferences drawn by the learned trial Judge from his visit to the locus in quo.”

On the first question for determination which relates to the third ground of appeal, the learned trial Judge in his judgment made reference to certain paragraphs of the Reply filed by appellants to the respondents’ Amended Statement of Defence and came to the conclusion that the said paragraphs were not replies in law. He also said that any evidence adduced in their support would be disregarded. The matter was taken up by the appellants in the Court of Appeal which Court dealt with it at p.141 of the Record as follows:-

“The other point is in relation to the Reply which the plaintiff filed to the Amended Statement of Defence particularly paragraphs 3, 4 and 5 of the said REPLY. The trial court held that what was filed is not REPLY within the Law and promised to disregard any evidence in respect of it. The averments in the Reply are no more than the elaboration of the traditional history pleaded in the Amended Statement of Claim to which there had been an Amended Statement of Defence. The averments in the Reply are intended to deny the allegations in the Amended Statement of Defence, and this is not the purpose of a reply. Even in respect of the Statute of Limitation pleaded in the Amended Statement of Defence, the Reply did not set out facts showing the defence as untenable, but simply said: “The plaintiffs state the claim is not statute barred.” I believe that the trial Judge was correct in his views that the REPLY was not a good one.”

Having examined the said paragraphs of the plaintiffs’ Reply, I have come to the conclusion that both the trial court and the Court of Appeal are right that they are not replies in law. Now, the rule of practice is that where no counterclaim is filed, a Reply is generally unnecessary if its sole object is to deny allegations contained in the Statement of Defence. The proper function of the Reply is to raise, in answer to the defence, any matters which must be specifically pleaded, which make the defence not maintainable or which otherwise might take the defence by surprise or which raise issues of fact not arising out of the defence – Bullen & Leake and Jacob’s Precedents of Pleadings, 12th Edition p.107. (Also see Williamson v. London & North Western Railway Company(1879) 12 Ch.D 787, 794). Reply is the proper place for meeting the defence by confession and avoidance. Hall v. Eve (1876) 4 Ch.D. 341.

Now the question is: Was the learned trial Judge right when he disregarded evidence adduced in support of the averments in the Reply I think he was. Admittedly, it is the duty of a trial Judge to evaluate all relevant and material evidence and decide the issues raised on the pleadings, but where, as in this case, the averments are patently defective, he is not obliged to take any cognisance of the evidence proffered in their support. I see no substance in this complaint.

The second issue for determination relates to the 4th ground of appeal which complains that the Court of Appeal was wrong to have upheld the findings of fact of the learned trial Judge. In this regard, Chief Williams, S.A.N., both in his brief and oral submissions made two points. The first was that the Court of Appeal upheld certain findings of fact made by the trial court which findings were not supported by averments on the pleadings. In this regard he referred to a passage from the lead judgment of Dosunmu, J .C.A., at p.137 of the Record where he said:-

“Apart from alleging that some of the findings in favour of the defendants were not based on averments in the pleadings, and these had not been shown to lead to a miscarriage of justice, it was not argued that the findings were not supported by evidence at the trial.”

If by this passage it is meant to say that a finding of fact relating to a matter not pleaded may be made provided there is evidence to support it, then it must have been made in error, and this is because of the settled principle of law that evidence relating to facts not pleaded goes to no issue and should be disregarded. See National Investment and Properties Co. Ltd. v. Thompson Organization Ltd. & Ors. (1969) 1 A.N.L.R. 138. In this case, however, I have not been persuaded as alleged in the appellants’ brief, that the learned trial Judge had made certain findings of fact in favour of the respondents which findings were not supported by the averments on the pleadings. I am also satisfied that the passage from the judgment of the Court of Appeal referred to by Chief Williams in his brief played no part whatsoever in the conclusion reached by that Court.

The second point made under this ground of appeal is that the Court of Appeal based its rejection of the attacks made on the findings of fact by the trial court on grounds which were untenable. In this regard, Chief Williams referred to a passage in the lead judgment of the Court of Appeal at p.138 of the Record where the Court expressed the view that the plaintiffs’ plan was not of much help to the plaintiffs’ case since the plan failed to show the exact boundaries of the land in dispute. It was the contention of Chief Williams that the location of each of the various farms within the land in dispute is what is important and not the boundaries of each farm. He further contended that the Court of Appeal was in error to have brushed aside the evidence of facts showing acts of ownership on the part of the plaintiffs.

I think the criticism of the Court of Appeal in this regard is unjustified in the first place counsel’s submissions in the Court of Appeal could not have possibly amounted to evidence of acts of ownership and therefore the question of the Court of Appeal brushing it aside would not arise. Secondly, as to the acts of ownership on the land in dispute, each party adduced evidence at the trial, and having given careful consideration to the totality of the evidence adduced, the learned trial Judge preferred the evidence of the defendants to that of the plaintiffs. His findings were affirmed by the Court of Appeal as that Court was bound to do since it was not persuaded that the findings were perverse.

With regard to the third question for determination, it was the submission of Chief Williams that the Court of Appeal was wrong in saying that the sale of a parcel of land by the plaintiffs within the land in dispute is fatal to the plaintiffs’ claim for declaration of title, and in support of this submission, he cited Ramonu v. Akinwunmi & 5 Ors. S.C.106/165 (Unreported) delivered on 23/6/66 and Ocean Estates Ltd. v. Pinder (1969) 2 A.C. 19 at 25. I think it should be pointed out that the learned trial Judge did not say that the sale of a portion of the land in dispute by the plaintiff is fatal to the plaintiffs’ claim for declaration. What the learned trial Judge said on the point can be found at p.112 of the record and it is as follows:-

“……….it is the case of the plaintiffs that portion of the land in dispute has been sold to the 9th plaintiff witness. But the plaintiffs are claiming the whole land in dispute. I need not emphasize the fact that the plaintiffs cannot claim a portion of the land which is not their own. They can get judgment for a lesser portion of land claimed if this is proved. There is no evidence of the portion sold to the 9th plaintiff witness. It therefore follows that the land claimed by the plaintiffs as revealed in their evidence and in view of paragraph 20 of the statement of claim, supra, is not certain.”

Now in this case it was common ground that a portion of the land in dispute was sold by the plaintiffs to the 9th p.w. and since a grant of land under Native Law and Custom exhausts the right or title of the vendor unless there is evidence to the contrary – Kabiawu v. Sule Alabi Lawal (1965) 1 All N.L.R. 329, it follows that after the sale of the portion of the land in dispute to the 9th P.W., the plaintiffs could only claim the land in dispute minus the portion already sold. Where, in a declaration of title to a large parcel of land, a plaintiff is only able to establish his claim to a smaller area, the Court can grant a declaration in respect of the smaller area if the evidence justifies it Woluchem v. Gudi (1981) 5 S.C. 291.

It is also trite law that in a declaration of title, if the plaintiff includes land for which he has no title, but successfully proves title to an ascertainable portion of the land, the Court can make a declaration of title in respect of the ascertainable portion of which title is proved – Sogunle v. Akerele (1967) N.M.L.R. 58. It is also a well settled principle of law that before a declaration of title is made the land to which it relates must be fully ascertained – Kwadzo v. Adjei 9 W.A.C.A. 274; Udofe v. Aqusisua (1973) 1 S.C. 119 and Udofia v. Afia 6 W.A.C.A. 216. In this case, the plaintiffs were claiming the whole land in dispute which included the portion already sold to the 9th p.w. There is no evidence of the exact extent of this portion and in the circumstances, in my view, the learned trial Judge was right in refusing to make a declaration in their favour.

The fourth question for determination relates to the second ground of appeal. This deals with the failure on the part of the trial Judge to adopt the correct procedure at the locus in quo and the refusal of the Court of Appeal to set aside the trial court’s decision on account of this error. To his own submission, Chief G.O.K. Ajayi, S.A.N., for the respondents, contended that the decision of the Court of Appeal not to reverse the judgment of the trial court was justified by the decision of this Court in the case of Olubode v. Salami (1985) 2 N.W.L.R. (Pt.7) 282 where it was held that a decision of a trial court will not be set aside merely by reason of an incorrect procedure adopted at a visit to the locus in quo unless it can be shown that a substantial miscarriage of justice was occasioned by such procedure. I am inclined to agree with this submission. The main function of an Appeal Court, in my view, is in the first place, to determine whether an error has been committed by the trial court. If it finds such an error committed, it will then consider its gravity and magnitude to justify the reversal of the judgment of the trial court. It is not every error committed by a trial court that would automatically lead to the reversal of its decision. Such an error must have substantially and materially affected the decision of the trial court. In this case, it is my view, that on the overwhelming evidence before the learned trial Judge, failure on his part to follow the correct procedure at the locus could not have affected his decision. The Court of Appeal was therefore right in its refusal, in the circumstances, to reverse the decision of the trial Court.

This appeal turns almost entirely on issues of fact in respect of which the trial court made specific findings. Those findings were upheld by the Court of Appeal. Thus, there have been concurrent findings of fact by both the High Court and the Court of Appeal. The attitude of this Court, which has been repeatedly stated in several decisions, is that in the absence of special circumstances, this Court will not allow questions of fact to be re-opened where there have been two concurrent findings of fact by two lower courts, Mogo Chinwendu v. Nwanegbo Mbamali (1980) 3-4 S.C. 31; Ukpe Ibodo & Ors. v. Enarofin & Ors.(1980) 5-7 S.C. 42; and Kale v. Coker (1982) 12 S.C. 252. I agree entirely with the submissions of Chief Ajayi, S.A.N., that nothing has been urged on us in this appeal to justify our interference with the decision of the lower courts. The appeal therefore fails in its entirety and it is hereby dismissed. The decision of the Court of Appeal is hereby affirmed. Costs assessed at N500.00 are awarded to the respondents.

ESO, J.S.C.: I have had the advantage of the lead judgment just read by my learned brother, Kawu, J.S.C. I agree that the appeal turned completely on issues of fact. The trial Court after a painstaking examination of the facts made specific findings. The Court of Appeal upheld the findings of facts. This leaves a situation whereby there are concurring findings of facts of the two lower Courts.

This Court has laid down a principle of upsetting two concurrent findings except exceptional circumstances are shown. No such circumstance has been shown in this case.

I agree that the appeal has no merit and it is hereby dismissed. I abide by all the Orders including Order as to Costs made by my learned brother, Kawu, J.S.C.

UWAIS, J.S.C.: I have read in advance the judgment read by my learned brother, Kawu, J.S.C. I agree that the appeal has no merit and that it should be dismissed. I adopt the reasons given in the said judgment.

Accordingly, the appeal is hereby dismissed with N500.00 costs to the 4 respondents.

WALI, J.S.C.: I have read before now the lead judgment of my learned brother, Kawu, J.S.C., and I agree with his reasoning and the conclusion that the appeal is unmeritorious and must therefore be dismissed.

Apart from the issue that the courts below failed to consider the purported Reply to the Statement of Claim filed by the appellants and which has exhaustively been treated in the lead judgment, the remaining issues are related to the findings of fact by the trial court which have been affirmed by the Court of Appeal. In the absence of special circumstances, this Court will not interfere with concurrent findings of fact by courts below – See Ibodo & Ors. v. Enarofia & Ors.(1980) 5-7 S.C.42 and Kale v. Coker (1982) 12 S.C. 252.

For the same reasons given by my learned brother, Kawu, J.S.C., in the lead judgment, I also hereby dismiss this appeal, affirm the decision of the lower courts and award N500.00 costs to the respondents.

CRAIG, J.S.C.: I have had a preview of the judgment of my learned brother, Kawu, J.S.C., and I am in total agreement with him that the substance of this appeal turns mainly on the concurrent findings of facts made by the two lower Courts.

The arguments advanced in this regard have not persuaded me to hold that those findings are in any way wrong or perverse and I therefore do not see any need to disturb them.-

See Eliochin (Nig.) Ltd. v. V.N. Mbadiwe (1986) 1 N.W.L.R. (Pt.14) 47; Dawodu Lokoyi v. E. Babalola Olojo (1983) 8 S.C. 61.

For the fuller reasons set out in the lead judgment, with which reasons I agree, I too would dismiss this appeal.

The appeal is accordingly dismissed and the judgment of the lower Court is hereby affirmed.

Appeal dismissed.

SC.187/1985(-R2)