J.a.a. Makanjuola & Anor V. Chief J.o. Ajilore(2000)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A. 

On 30/5/90, the plaintiff/respondent filed his writ of summons against the two defendants/appellants at the High Court of Justice, Ilesha whereby he claimed as follows:-

“(i) Declaration that the piece or parcel of land measuring approximately 20.415 hectares situated, lying and being at Eriru along Ilesha/lfe road, Ilesha and more particularly described in a survey plan No. KARA/OY/1052/86 attached to a Certificate of Occupancy dated 12/5/87 and registered as No.49 at page 49 in volume 2742 of the register of deeds in the Lands Registry, Ibadan, forms part of Loro Chieftaincy land.

(ii) Declaration that the plaintiff as the incumbent Loro of Ilesha is the person entitled to a grant of a statutory right of occupancy in respect of the said land.

(iii) Declaration that the purported grant of the aforesaid piece of land by the 2nd defendant to the 1st defendant is null, void and of no effect whatsoever.

(iv) An order setting aside the certificate of occupancy dated 12/5/87 and registered as No. 49 at page 49 in Volume 2742 of the register of deeds in the Lands Registry at Ibadan.

(v) Injunction restraining the defendants whether by themselves, their agents, servants or privies from granting, alienating or dealing with the said land in any manner whatsoever inconsistent with or prejudicial to the rights or interest of the plaintiff.”

On the above claims, pleadings were ordered, filed and exchanged and the case was set down for hearing. When the plaintiff/respondent (hereinafter simply called “the respondent”) was called upon to open his case, his Counsel contended that from the pleadings exchanged, it was the duty of the defendant/appellants (also hereinafter simply called “the appellants”) to begin by opening up their case. The learned Counsel for the said appellants expressed a different view (or opinion). Consequently, the court called upon the learned counsel for both parties to address it, and argue, on the point. After hearing the parties on the issue (or point) the court reserved its ruling to 25/5/92. On that date the court delivered its ruling whereby it upheld the contention of the respondent on the point and called upon the appellants to begin by opening up their case. The said Appellants who were dissatisfied with the ruling of the court consequently appealed against it in this court which appeal is the subject matter of this judgment.

In the original notice of appeal as contained in the record of proceedings (pages 43-44 thereof) the appellants filed 3 grounds of appeal out of which they formulated the following three (3) issues in their brief of argument filed in accordance with the rules of this court:-

“(i) Whether the learned trial Judge was right to have called upon the defendants to first call evidence when it was apparent from the pleadings in the court that it is the plaintiff that (sic) would fail if no evidence was called by either side.

(ii) Whether on the pleadings before the court, the trial Judge was right in holding that the defendants admitted having the same root of title to the land in dispute.

(iii) Whether the learned trial Judge was right to have made findings of fact on strictly irreconcilable and conflicting pleadings in the statement of claim and statement of defence without oral evidence.”

In the respondent’s brief also filed in accordance with the rules of this court, the above reproduced issues as formulated in the appellant’s brief are also adopted or accepted as those calling for determination in the appeal (though reframed or re-worded). In the circumstances, I will in this judgment adopt the issues as formulated in the appellant’s brief in which they are tied to or related to the grounds of appeal and responded to in the respondent’s brief.

In arguing the 1st issue which is covered by ground 1 of the grounds of appeal, the gravamen of the appellant’s arguments and submissions is against the decision of the learned trial Judge to consider the pleadings of the parties in order to determine which of the parties was to start calling evidence (or to open his case) – See page 19 of the record. It is contended in the brief that the conclusion reached by the said learned trial Judge that it was the defendants rather than the plaintiff who should start by calling their witnesses because of the purported admissions contained in the pleadings of the said defendants, was wrong and made in error. It is pointed out that the lower court wrongly referred to paragraphs 1-9 of the defendant’s statement of defence where they were said to have admitted the plaintiff’s claim as per paragraphs 3, 4, 9-13 of the statement of claim. The appellants’ brief also attacks the finding of the learned trial Judge (based on his review of the parties’ pleadings) that the defendants have (in their admission) traced their title to Esibagun (the plaintiff’s ancestor) and that Loro Gbenla (the defendant’s ancestor) had divested himself and his family of their interest in the land in dispute. It is submitted that this finding or conclusion by the learned trial Judge which neither arose from the pleadings nor supported by any evidence was most erroneous. It is further submitted that there was no admission in the defendants’ pleadings (i.e. in paragraphs 1-9 of the statement of defence) as wrongly held by the trial court and that the cases presented or put forward by the parties were very distinct as also held by the said trial court. It is pointed out in the brief that while the plaintiff/respondent claimed that the land in dispute was “Loro Chieftaincy title land”, the defendants/appellants referred to the said land in their pleadings as “Loro Chieftaincy Family Land”. It is pointed out that there is a sharp or marked difference in the name or description of the land given by the parties respectively in their pleadings. Consequently, the brief asserts, it was very wrong and erroneous for the lower court to hold that the defendants admitted the plaintiff’s title and to call on the said defendants (instead of the plaintiff) to begin the proceedings by opening their case. It is further contended that the lower court could not or should not infer admission from the defendants’ pleadings in the absence of an express admission by them from the paragraphs of their pleadings (i.e. statement of defence) relied upon by the said court. The case of National Bank of Nigeria v. Guthrie (Nig.) Ltd. (1987) 2 NWLR (Pt.S6) 255 at 263 is relied upon in the brief in support of the contention.