Iyiola Ogunjumo & Ors V. Muritala Ademolu & Ors (1995)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C. 

In the High Court of Oyo State at Ibadan the plaintiffs sued the defendants claiming the following reliefs –

“(1) Declaration of entitlement to right of occupation and grant of certificate of occupancy in respect of the parcel of land situate and being at Olomi Olojuoro Road, Ibadan.

(2) N2,000.00 (Two Thousand Naira) jointly and severally for general damages for continuing trespass committed by the defendants and or their agents on the said land, and

(3) Perpetual injunction to restrain the defendants and or their agents, servants and assigns from further entry on the land.”

See para. 19 of the Amended Statement of Claim.

After the filing and exchange of pleadings the case proceeded to trial. The 4th defendant however though served neither entered appearance nor took part in the trial. At the hearing of the case, the 1st plaintiff and four other witnesses gave evidence on behalf of the plaintiffs. The 1st, 2nd, 3rd and 6th defendants gave evidence for themselves with the 1st defendant calling one other witness. Two witnesses testified on behalf on the 5th defendant. ..

The case for the plaintiffs was simply that one Obegun their ancestor, settled on the land in dispute which is verged red in their Survey Plan Exhibit A. The said Obegun exercised various acts of ownership on the land in his life time. After the death of the founder his children Ogunjumo Ogundeli and Ogunlana from whom the plaintiffs descended continued to exercise various acts of ownership and in particular putting caretaker fanners on the land who accounted to the plaintiff for products of the farms.

The plaintiffs also averred that Obegun invited the ancestor of one Bello Adelabu to the vicinity of the land in dispute where he settled; and that they also granted part of the land to one E.A. Agboola. It was also averred that one Ayoade Akanji Ogunyemi now deceased, farmed on the land. When the plaintiffs discovered the presence of signboards and unauthorised structures on the land in 1979, they caused their solicitor to write to the defendants. That despite repeated warnings to the defendants they continued their building operation on the land in dispute until they sued them in court.

It is convenient at this stage to explain the land in dispute which as I said is verged red in Exhibit A. It will be observed that the area verged red is sub-divided into three portions verged yellow, green and pink respectively. The disputants in each of these areas are as follows –

a. The area verged yellow

The dispute is between the plaintiffs and the 1st, 2nd, 3rd, 5th & 6th defendants.

b. The area verged green

The dispute is between the plaintiffs and the 1st defendant only.

c. The area verged pink

The dispute is between the plaintiffs and the 4th defendant only ..

Now, the defendants’ case was that the 1st, 2nd and 3rd defendants bought the area verged yellow from Otitoju Trading Company/Society, lbadan, represented by the 5th & 6th defendants herein. The Company/Society itself had bought from the children of one Layinka as per deed of conveyance (Exh. J) dated 20th May, 1977. Layinka himself had bought from Akande, a member of Obegun family on 6th April 1926 as per Exhibit B.

On the other hand the 1st defendant claimed to have bought the area verged green from Jenyotan Filenu/Oguntade family of Agbongbon, Ibadan in 1976 vide his deed of conveyance dated 3rd February 1977 (Exhibit L). He said the Jenyotan Filenu/Oguntade family were the original settlers on the land. He pleaded that he exercised acts of ownership on the land including placing one Akanni, the brother of one Salami Layiwola on the land as caretaker. He said he later laid the land into plots and had sold out virtually all the plots to people some of whom had completed their houses on the land. As I said above, the 4th defendant was not at the trial.

In a well considered judgment, the learned trial Judge Aderoju Aderemi J., after carefully evaluating the evidence of the parties, put each set of facts on an imaginary scale, weighed one against the other and came to the following conclusion on page 166 of the record –

“The plaintiffs have failed to show that they were in exclusive possession of the area verged green and the area verged yellow on Exhibit A. It has been shown that the plaintiffs’ family have divested themselves of a very large portion of the area verged yellow. They have not proved that they were ever in possession of the area verged green. The claim for trespass therefore fails.

As the claim for injunction follows a finding of liability for trespass. see Obanor v. Obanor(1976) 2 S.C. 1; (1976) NMLR 39 at 43), the plaintiffs are not entitled to one as they have failed to prove trespass.

The 4th defendant did not take part in the proceedings. The evidence led against the 4th defendant is so scanty and in my view not enough to grant the prayers sought by the plaintiffs in a claim for a declaration of title to a statutory right of occupancy, trespass and injunction. The plaintiffs must prove their case against her, the fact that she was not present at the proceedings notwithstanding (See Christopher Okolo v. Eunice Uzoka (1978) 4 Sc. 77 at 86 and Kodilinye v. Mbanefo Odu (1935) 2 WACA 336.

Finally I hold that the plaintiffs are not entitled to succeed in their claims which are all hereby dismissed.”

Dissatisfied with the judgment of the High Court, the plaintiffs appealed to the Court of Appeal, Ibadan Division. Various issues under the three sub-divided portions of the land in dispute above were submitted for resolution. The Court of Appeal carefully considered all the issues and dismissed plaintiffs’ appeal when it held on page 248 of the lead judgment thus-

“The result is that the appeal fails and it is hereby dismissed by me. The judgment of Aderemi J. dated 10.11.86 is hereby affirmed. There will be costs against the appellants which i assess at N300.00 (Three hundred Naira).”

Further aggrieved by the decision of the Court of Appeal. the plaintiffs have appealed to this Court.

Counsel on both sides filed and exchanged briefs of argument which were adopted at the hearing. Mr. Awosode learned counsel for the plaintiff has on page 2 of his brief submitted five issues for determination in this appeal as follows –

“1. Whether when no evidence of sale to the defendant/respondent in court by the plaintiffs/appellants’ family the Court of Appeal can uphold the decision of the High Court that the land verged Yellow in Exhibit A was validly transferred to the 5th and 6th defendants/respondents.

2. Whether where the appellants case remained uncontroverted, the lower court can refuse to grant a claim in respect of the area verged

Pink in Exhibit A.

3. Can a party rely on inadmissible documents coupled with act of possession in an action for declaration of title when the act of possession was seriously disputed during the trial.
4. Whether the lower court was right in refusing the appellants’ case on the ground of laches, acquiescence and standing by when from the evidence before the court, the appellants did not stand by or acquiesce.
5. Did the appellants not prove their case in respect of ownership and possession of the area verged Green in Exhibit A”

Mr Abiodun learned counsel for the defendants (except the 4th defendant) on the other hand thinks that there is only one question for determination in this appeal and that is whether or not the Court of Appeal was right to have affirmed the judgment of the High Court on all grounds. This is probably a summary of the five issues combined.

On issue (1) Mr. Awosode submitted that title to the land verged Yellow in Exhibit A was not validly transferred to the 5th & 6th defendants and that the transfer was void. He said the defendant failed to prove that Akande who sold the land to Layinka was the head of Obegun family. Any purported sale or conveyance to the 5th & 6th defendants was therefore void. It was further submitted that there was no evidence that Akande sold the family land to Layinka with the consent of all the principal members and head of Obegun family. Exhibits E & G were only evidence of payment and not of any consent from the family. It follows therefore that the land was only sold by one branch of the family and not by the entire family, and the sale was therefore void. He referred to the cases of Abike & Ors. Adedokun (1986) 3 NWLR (Pt. 30) 548 at 559. Atunrase v. Sunmola (1985) 1 NWLR (Pt. 1) 105; (1985) NSCC Vol. 16 Page 115 Ramoni v. Akinwumi & Ors. (1966) NSCC Vol. 4 Page 197 Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188 at 223 D – F.

On issue (2) learned counsel submitted that the evidence adduced by the plaintiffs in respect of the area verged Pink was enough to give ownership to plaintiffs especially when their evidence remained uncontradicted. He said the 4th defendant in the absence of an appearance and pleadings must be taken to have admitted plaintiffs’ claim and judgment ought to have been given to them accordingly. He referred to the cases of Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548. Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22; Okoye v. Nwalu (1988) 2 NWLR (Pt. 26) 359.

Arguing issue (3) counsel submitted that Exhibits E. F. G & H cannot transfer any valid title to the 5th & 6th defendants of the land verged yellow because they are registerable instruments and that they were not so registered. They are therefore also inadmissible in evidence. He cited in support Ogunmbambi v. Abowab (1951) 13 WACA 222. It was also submitted that Exhs. E, F. G & H can only confer equitable interest in the land if defendants’ possession of the land was not challenged and the sale to them was not void ab initio.

Under the 4th issue it was submitted that there was no evidence before the court that the plaintiffs stood by or acquiesced. That the defence of laches and acquiescence and standing by cannot be available to the defendants because there was no evidence that the plaintiffs knew about the use of their land until 1979 when they discovered the sign-board thereon. He said the disputed land was bought by Otitoju Trading Society in 1977 and the defendants were challenged in 1979 and went to court in 1980. There was therefore no delay before the plaintiffs challenged the defendants. He referred to Oshode v. Imoru 3 WACA 93. Oshodo v. Balogun (1936)4 WACA 1; Ajao &Anor. v. Owoseni & Anor. (1986) 5 NWLR (Pt. 43) 578.

On issue (5) it was submitted that the plaintiffs have from their pleadings and evidence proved their ownership of area verged Green in Exhibit A. Counsel said the fact that the plaintiffs are the owners of the areas verged Yellow and Pink is proof of possession of connected or adjacent land and that the circumstances here render it more probable that the plaintiffs are the owners of the portion verged Green. He referred to the case of ldundun v, Okumagba (1976) 9-10 S.C. 227; (1976) 1 NMLR 200. He said the vendors of the 1st defendant did not adduce evidence of ownership of other portions of land in the area apart from the one they claimed to have sold to the 1st defendant showing that the vendors – Jenyotan Filenu/Oguntade family – did not own the land.

Replying generally, Mr. Abiodun for the defendants submitted that the 4th issue relating to laches, acquiescence and standing-by, should be discountenanced as it is not tied to any ground of appeal. He said ground 5 of the Grounds of Appeal is not covered by issue 4 either and the ground should be deemed to have been abandoned. He referred to Hart v. Hart (1987) 4 NWLR (Pt. 63) 105 and Obasi v. Onwuka (1987) 3 NWLR (PI. 61) 364.

On the remaining issues counsel said that this Court is being called upon to upset concurrent findings of facts by the High Court and the Court of Appeal. He said the plaintiffs can only succeed if they can show that the findings of facts are not supported by evidence and that the error in arriving at such findings has occasioned a miscarriage of justice. In other words, such findings must be perverse. It was then submitted that the findings of fact in this case are amply supported by evidence. He referred us to the case of Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523.

Counsel also referred to pages 245 – 246 of the record where the Court of Appeal agreed with the conclusions reached by the trial High Court regarding the sale of the portion edged Yellow by Akande as head of Obegun family and on behalf of the family. He said, the Court of Appeal rightly came to the conclusion that the trial court properly evaluated the evidence before it. About the area verged Green in Exhibit A counsel said the lower courts were right when they held that the plaintiffs failed to prove they were ever in possession of that area of land. The lower courts were equally right to have described the plaintiffs’ evidence as scanty in that regard.

It was also submitted that we should not disturb the lower courts finding on Exhibits E, F, G & H which validly transferred title to the 5th & 6th defendants in respect of the land verged yellow.

I will now endeavour to resolve the issues one by one” On whether the area of land verged Yellow was validly transferred to the 5th & 6th defendants, the learned trial Judge on page 157 of the record stated thus –

“From all the available evidence before me, I have no doubt that Akande, a member of the Obegun family, sold the land described in Exhibit B to Layinka on the 6th of April 1926. The boundaries of the land correspond with the description of the land in Exhibit B. There is no reliable evidence from the plaintiffs-to contradict the sale.”

Further down on page 158 he continued thus-

“It is clear in the face of Exhibits E, F, & H that Layinka bought the land from Akande. It is also clear that Akande sold the land on behalf of the entire Obegun family. This was clearly stated in the document Exhibit B. I am certain that the entire Obegun family knew about the sale and they consented to it.”

Also on page 161 he said –

“Upon the totality of the evidence before me, I find as a fact that Akande was the head of Obegun family at the time of the sale of the land in dispute to Layinka. I also find as a fact that at the time of the sale the said Akande sold with the consent, knowledge, and approval of the entire Obegun family.”

The above findings which have been confirmed by the Court of Appeal have not been shown to be perverse. In fact these findings are amply supported by evidence led by the defendants. There was the further evidence that the Otitoju Trading Society through 5th and 6th defendants bought the land from the children of Layinka as per their deed of conveyance (Exhibit J.) and that the 1st, 2nd & 3rd defendants bought same from Otitoju Trading Society (represented by the 5th & 6th defendants). I think the lower courts were right in their conclusions.

On the complaint in issue (2), the learned trial Judge had held that the evidence led by the plaintiffs on the portion of land verged Pink was so “scanty and insufficient” to grant the declaration sought. That they failed to prove their case against the 4th defendant who was absent throughout the trial. It is trite law that a civil case is decided on a preponderance of probabilities and that the onus of adducing further evidence is on the person who would fail if such evidence were not produced (See section 136 (old 135) of the Evidence Act). But even then the nature of proof in a given case must be dictated by the particular circumstances of the available evidence. Thus in an uncontested case a plaintiff may establish his case by minimum ‘proof while a contested case may be established by a balance of probabilities. I agree with the courts below that “scanty and insufficient evidence” adduced at the trial did not amount to minimum proof which would have entitled the plaintiffs to judgment against the 4th defendant.

Issue (3) deals with the registrable instruments Exhs. E, F, G & H. The Court of Appeal on page 247 of the record stated thus;-

“It is true that Exhibits E, F, & G are registrable instruments but armed with Exh. E. and the taking of immediate possession coupled with acts of possession, the registrable instruments are therefore admissible to prove an equitable interest which was conveyed to Layinka. See Registered Trustees of Apostolic Faith Mission v. James (1987) 3 NWLR (Pt. 61) 556 and Obijuru v. Ozims (1985) 2 NWLR (Pt..6) 167.” .

I agree, But I must point out that in fact both Exhibits F. & H are not registrable instruments under the Land instruments Registration Law because they are ordinary letters to and from the District officer Ibadan Division and do not grant any interest in land. Exhibits E & G however are clearly registrable instruments. To put it simply the law is that registrable instruments which are not registered are if pleaded admissible in evidence to prove not only payment of purchase money or rent but also to prove equitable interest where the purchaser or lessee is in possession (See Okoye v. Dumez (1985) 1` NWLR (Pt. 4) 783; (1985) 6SC. 3.

Ground 5 of the Grounds of Appeal on page 253 of the record reads –

(5) The Court of Appeal erred in law by refusing to consider the ground of appeal on laches, acquiescence and standing by when the, said ground was argued by both plaintiffs/appellants and-defendants/respondents.” .”

Issue (4) on the other hand reads –

“Whether the lower court was right in refusing, the appellants case on the grounds of laches, acquiescence and standing by when from, the evidence. before the court the appellants did not stand-by or’ acquiesce.” ..

So clearly the issue (4) does not flow from ground 5. While ground 5 complains about refusal to consider laches, acquiescence and standing by, the issue talks of refusal of appellants’ case on the same ground.

The Court of Appeal apparently did not consider the issue of laches, acquiescence and standing by when it said on page 248 of the record that ”

The issue of laches, acquiescence and standing by has become a non-issue having regard to the’ findings and conclusions of the’ learned trial Judge on other issues raised with which I agree”

So, whichever way one looks at it, issue (4) is incompetent not having being covered by ground 5 or any ground at all, while ground 5 itself would be deemed to have been abandoned not being covered by any of the issues. Issue (4) will accordingly be struck-out and it is hereby struck-out:

As regards the area verged Green covered by issue (5) the learned trial Judge believed the evidence of the 1st defendant that the land originally belonged to Jenyotan Filenu/Oguntade family and that the land of the plaintiffs did not extend to the land verged green in Exhibit A. He equally found that section 45 of the Evidence Act cannot be of any assistance to the plaintiffs. In addition he said the evidence of traditional history and acts of possession led by the plaintiffs were “scanty and unreliable”. The Court of Appeal agreed with him and I too agree.

There is no reason to interfere.

The result is that this appeal fails all the issues having been resolved against the plaintiffs. The appeal is accordingly dismissed. The judgments of the lower courts are hereby confirmed. There will be costs against the plaintiff assessed at one thousand Naira (N 1,000.00) only.

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SC.232/1991