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.

The provisions of sections 135 and 136 of the Evidence Act (Cap.112) Laws of the Federation of Nigeria, 1990 and Insurance Brokers of Nigeria v. A.T.M Co. Ltd. (1996) 8 NWLR (Pt.466) 316 at 327 were also called in aid by the appellants (in the brief) and it is submitted in line with the provisions and the case cited that the party to start adducing or calling evidence in proof of his or their pleadings is the one who would lose or fail if no evidence at all was called by either side. It is consequently pointed out in the brief that since the plaintiff who asserted in his pleadings that the land was a Loro family chieftaincy land had the burden or onus of adducing oral evidence to prove that, his failure to do so should have resulted in the failure or dismissal of his case. On the other hand, it is asserted in the brief, the position of the defendants who were on the defensive side would be to rebut the oral evidence to be adduced by the said plaintiff in proof of his case. It was consequently wrong for the trial court to call upon the defendants to begin with their evidence of rebuttal in the absence of oral testimony to be adduced by the plaintiff in proof of his assertions or averments in his pleadings.

In reply to above submissions under issue 1, the respondent’s brief maintains that the learned trial Judge was perfectly in order when he called upon the defendants/appellants to open their case by calling evidence first before the plaintiff/respondent. It is submitted in the said respondent’s brief that the learned trial Judge took the step and adopted the procedure after due consideration of the pleadings of the parties. Paragraphs 1-12 of the defendant’s statement of defence are said in the brief to be or to amount to clear and unambiguous admission of the plaintiff’s case as pleaded in paragraphs 2, 3, 4, 9, 10, 11, 12 and 13 of the statement of claim. It is argued that the effect of the defendants’ admission (as per their pleadings) is that they agreed with the plaintiff as regards the descedancy of Loro Chieftaincy family and “the defendants consistent relationship with the land claimed by the plaintiff” – See paragraph 6.06 at page 6 of the brief. It is also contended in the brief that by consideration of the parties’ pleadings before the lower court, it was the defendants who would fail or lose the case if no evidence was called by either parties (at the state of pleadings), The brief also cites sections 135 and 136 of the Evidence Act (supra) ; Order 37 rules 15 and 16 of the Oyo State High Court (Civil Procedure) Rules, 1988; Chief S.B. Bakare v. African Continental Bank Ltd. (1986) 3 NWLR (Pt.26) 47 at 56-58; Insurance Brokers of Nigeria v. A.T.M. (supra) and Mrs. Olu Solanke v. G. Somefun & Anor (1974) 1 SC 141 (1974) NSCC Vol. 814 at 17 in support of the above submissions. It is further submitted in the said brief that since the defendants in paragraph 9 of their pleadings claimed to be members of Loro Chieftaincy family through Esibagun and Loro Gbenla and they became the exclusive owners of the land in dispute through their said ancestors, then the onus was on them to prove how they became the exclusive owners and how the plaintiff had divested himself of the title to the land as rightly held by the trial court. – See Adenle v, Oyegbade (1967) NMLR 136; Omolola Abike & Anor v. Olalonpe Adedokun (1986) 3 NWLR (Pt.30) 548; and Alhaja Moriyamo Adesanya v, Adetayo Olaitan Otuewu & Ors (1993) 1 NWLR (Pt.270) 414; (1993) 1 SCNJ 77 at 119 cited in support of the above submission. We are finally urged in the brief to hold that the learned trial Judge was right and in order when he called upon the defendant rather than the plaintiff to open up their case first and call their witnesses to prove their ease as averred in their pleadings and consequently to affirm the ruling of the lower court and dismiss the defendants/appellants’ appeal which is said to be lacking in merit.

In resolving the above submissions of the parties as they arose from their respective briefs under the 1st issue, our starting point should be to consider the pleadings of the parties particularly the paragraphs therein relied upon by the learned trial Judge in arriving at his conclusion that the defendant/appellants have in the said pleadings admitted or were deemed to have admitted the case of (or assertions made by) the plaintiff in his statement of claim. It was this conclusion of the learned trial Judge that led to his final decision in his ruling of 25/5/92 in which he ordered the defendants rather than the plaintiff to begin by opening their case first and calling their witnesses or adducing evidence to prove the averments in their pleadings. In this exercise, it is pertinent to note what the learned trial Judge observed in his consideration of the parties’ pleadings. After considering the arguments put forward by learned Counsel to both parties on the question (or issue) as on whom the burden of proof lies in the case, the learned trial Judge began his consideration of the issue in the following words:-

“The position and certainty (sic) of the plaintiff as pleaded in paragraphs 1 and 2 of the statement of claim are clearly and expressly admitted by the defendants in paragraph 1 of the statement of defence.”

(See page 19 lines 30-34 of the record).

Paragraphs 1 and 2 of the statement of claim said to be admitted by the defendants which are also reproduced at page 20 of the judgment read as follows:-

“1. The plaintiff is the present holder of the traditional chieftaincy title of Loro of Ilesha and lives at Loro’s compound at X2, Odo-Iro Street, Ilesha.

2. The Loro Chieftaincy title is hereditary and exclusive to descendants of Loro Chieftaincy family.”

In paragraph 1 of the statement of defence, the defendants averred thus:-

“1. The defendants admits (sic) paragraphs 1 and 2 of the statement of claim.”

With due respect to the learned trial Judge, I am unable to see how under any stretch of imagination the admission of the defendants of the plaintiff’s averments in the above reproduced paragraphs of the statement of claim which are merely descriptive of the plaintiff and his status (or chieftaincy title) (by way of introduction and as a preliminary step in his pleadings) and have nothing to do with the claim(s) in the suit which are for declaration of title. Trespass and injunction can be so treated by the said learned trial Judge in casting or ascribing an onus or burden of proof on the said defendants. In my humble view, the admission of those inconsequential paragraphs of the plaintiff’s pleadings by the defendants should have been overlooked by the learned trial Judge as they need no emphasis. They should not have been relied upon by the said learned trial Judge to change the position of the defendants in the suit or to shift the burden of proof on them as he did. What I am trying to say in other words is that the admission of paragraphs 1 and 2 of the plaintiff’s statement of claim by the defendants had nothing to do with and did not affect the substance of the claims of the said plaintiff. Consequently, it cannot be said to be capable of shifting the burden of proof on the said defendants. The claims or reliefs of the plaintiffs in the case are for title to the land in dispute, trespass and injunction against the defendants. Therefore by merely admitting that the plaintiff is the incumbent Loro of Ilesha and lives in the Lara Chieftaincy house, the defendants are not admitting the claims of the said plaintiff for title to the land in dispute which is different from the Loro Chieftaincy house (or compound). Moreover, the dispute in the case and a fortiori, the plaintiff’s claim in the suit, was not for the chieftaincy title of Loro of Ilesha.

However, in other paragraphs of the pleadings of the defendants that influenced or formed the basis of the ruling of the learned trial Judge casting the onus of proof on them (in paragraphs 3-8) are set out at page 20 of the record as follows:-

“3. The 1st defendant is the son of the 2nd defendant and they are both members of Loro family of Ilesha

4. The land in dispute formed part of a large tract of land originally belonging to late Esibagun, the first Loro of Ilesha.
5. Esibagun had with the permission of Owalonise, the then Owa Obokun of ljesha land waged war and conquered a hostile neigbouring settlement which had for long troubled the ljesha people during their festivals during the reign of the said Owalonise.
6. In appreciation of the achievement of Owalonise (sic) conferred on Esibagun the traditional chieftaincy title of Loro of Ilesha and also granted him a vast expanse of land in some part of Ijesha land.
7. Loro Esibagun was blessed with children and the Loro chieftaincy title passed down the line of Esibagun’s descendants.
8. Esibagun’s land also passed down to his descendants as an estate of inheritance.”

The above paragraphs of the defendant’s pleadings are to be examined critically as directed by the Supreme Court in Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799 at 806; and Overseas Construction Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt.13) 407 at 414 in order to determine the issues raised or joined in the case or to determine where the burden of proof lies in accordance with sections 135 and 136 of the Evidence Act (supra). Thus, from the above reproduced averments in the statement of defence, it is easy to see that the defendants have expressly agreed or admitted that the land in dispute was originally owned by Esibagun the first Loro of Ilesha (as pleaded by the plaintiff in paragraphs 8-11 of his statement of claim). The defendants have also admitted or should be deemed to have admitted that the land in dispute is part of and is related to Loro Chieftaincy title (as a stool land). Alternatively, defendants’ averments (as above) can be treated as an admission that the land in dispute is part of Loro Chieftaincy family land. It is trite that in a civil case, involving a declaration of title to land where the defendant (in his pleading) admits that the plaintiff was the original owner of the land, the onus of proof will then shift and be on the defendant to prove the absolute grant to him or how the original owner (i.e. the plaintiff) has become divested of his title). In that case, the court can rely on the defendant’s admission in the pleadings to hold that the title has remained with the original owner until the contrary is proved – thereby casting or shifting the burden or onus of proof on the said defendant. See Lawrence Onyekaonwu & Ors v. Ekwubiri (1966) 1 All NLR 32 at 35; Onobruchere v. Esegine (supra); Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 352: Ochonmu v. Unosi (1965) NMLR 321; Imana v. Robinson (1979) 3-4 SC 1 at p.8; Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372 at 363 and sections 135 and 136(1) and (2) of the Evidence Act (supra).

Thus although the general burden or onus of proof is usually on the plaintiff (as “he who asserts”) to start or begin the case by adducing evidence to prove or establish his case (as per the averments in his pleadings) there is an exception based on the above principle and provisions of the Evidence Act that the burden or onus can be shifted and be cast on the defendant, who admits the plaintiff’s claim of original ownership (as pleaded) and he will then be called to begin by calling evidence to establish how that original ownership was divested. In the present case the above principle applies to the defendants as the party who would have failed if no evidence was called at all based on the issues ‘as joined after the close of pleadings. Consequently in my view, the learned trial Judge was right by calling the defendants rather than the plaintiff in the present case to start or begin by calling witnesses or adducing evidence in proof of their case. Thus that aspect of the ruling of the learned trial Judge was apposite and cannot be faulted especially in view of the provisions in sections 135 and 136 of the Evidence Act (supra) to or with which it conforms.

The parties to a civil suit as well as the court itself are all bound by the pleadings the importance of which in civil proceedings cannot be over-emphasised. It is the basis of the parties’ respective cases where they present the summary of their position in the case in a narrowed down manner and in the form of issues upon which they rely as the basis of their stand (or position) in the case. The purpose of such exercise which is enjoined under our adversary system (of practice and procedure) is to give due notice to each other and to avoid surprises on what they are going or coming to face in conducting their cases during the trial. It also allows the parties to agree (i.e. admit) or disagree (i.e. deny) with the facts or issues presented or averred by their adversaries. At the end of the exercise, when issues are said to be joined it affords an opportunity for the court to know all the issues admitted or denied by the parties. Those admitted need no proof while those denied or are in controversy will call for proof. The attitude or approach of the court towards pleadings of the parties in a civil suit is to construe such pleadings strictly or even sometimes technically. Thus, parties are bound by their pleadings and will not be allowed to deviate from it or to introduce any issue or evidence which is not covered by or based on their pleadings. See George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; (1963) 1 All NLR 71 at 77; Oduka & Ors. v. Kasunmu & Ors. (1968) NMLR 28; Aderemi v. Adedire (1966) NMLR 398 at 401; Ogida v. Oliha (1986) 1 NWLR (Pt.19) 786; Thomas v. Olufosoye (1985) 3 NWLR (Pt.13) 523; Overseas Construction Ltd. v. Creek Enterprises (Nig.) Ltd, (1986) 3 NWLR (Pt.13) 407 at 418-419; Lawal v. G.B. Ollivant (Nig.) Ltd. (1972) 1 All NLR (Pt.1) 207; Metalimpex v. A.-G., Leventis & Co. (Nig,) Ltd, (1976) 2 SC 91 at 102 and Ehimare v. Emhonyon (1985) 1 NWLR (Pt.2) 177 at 183. Thus, the court will not allow a party to depart from his pleadings; nor will the court itself go into any inquiry or into a wild goose chase outside the pleadings – i.e. in its judgment?. There are other strict rules of pleadings which we do not need to go into for the purpose of the issue under review. It suffices to say that the learned trial Judge was right when he considered the defendants’ admissions and concluded that by that admission, it was the duty of the said defendants to begin (or start) by adducing evidence to show how the Loro Chieftaincy family became divested of their title to the said land. This is in accord with the principle in the case law authorities cited above particularly Olowu v. Olowu (supra); Buraimoh v. Bamgbose (supra); and Ochonma v. Unosi (1965) NMLR 321. This is not however the end of the matter as there are other circumstances of the case, apart from the defendant’s admissions, which the trial court should has considered but failed to do so in its ruling of 25/5/92.

By looking at the claims of the plaintiff which I deliberately reproduced at the beginning of this judgment, it is clear that he was seeking for a declaration that he is entitled to a right of occupancy in respect of the land in dispute, the setting aside of the Certificate of Occupancy earlier granted to the defendants in respect of the said land and an order of injunction restraining the said defendants from further alienating or dealing with the said land. In effect the reliefs sought by the plaintiff against the defendants at the trial court were for declaration of title, trespass and injunction. It is pertinent here to observe that in relation to the said claims the defendants have pleaded that the land in dispute which was a family property had been partitioned and divided or granted amongst the children of the defendant’s ancestor and that they were in possession or occupation of the said land – See paragraphs 11, 12, 13, 14, 15 and 16 of the statement of defence. The averments in the above paragraphs were not denied or controverted by the plaintiff who did not file a reply to the statement of defence. Consequently, he is deemed to have admitted the assertions in those paragraphs of the defence (under the rules of pleadings) and the defendants are not obliged to adduce evidence in proof of them. Thus, at the final state of the pleadings after issues were joined and under the provision of sections 135-136 of the Evidence Act, it was the plaintiff who would fail if no evidence at all were adduced in the case because of his failure to reply to the issues raised in the above paragraphs of the defendant’s pleading. Since possession is very crucial to the success of the claims of the plaintiff and the defendants asserted that they were in lawful possession of the land in dispute, it will then be the duty of the plaintiff and the onus is on him to lead evidence to show otherwise. Furthermore, the law is settled that a declaratory relief as in the present case is a discretionary remedy which is not granted as a matter of course and the court must be satisfied before granting it that the plaintiff or claimant has a very strong and cogent case both from his statement of claim and from the evidence he adduces in support thereof. The plaintiff must satisfy the court that under all the circumstances of the case, he is fully entitled to the discretionary reliefs in his favour, when all facts are taken into consideration. So also is the relief of an injunction which is an equitable one and calls for utmost caution by the court before exercising its discretion to grant it in favour of the plaintiff after all the circumstances of the case have fully been considered both judicially and judiciously – See Odofin v. Ayoola (1984) 11 SC 72; Ibeneweka v. Egbuna (1964) 1 WLR 219; Mogaji v. Odofin (1978) 4 SC 91; and Amakor v. Obiefuna (1974) 3 SC 67.

Thus, in an action for declaration of title, trespass and injunction as in the present case, it has been held by this court and the Supreme Court that the burden or onus of proof is always on the plaintiff who must rely on the strength of his own case and not on the weakness of the defendant’s case to show that he is entitled to the reliefs he claims. See Adesanya v. Otuewu (1993) 1 NWLR (Pt.270) 414; Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (Pt.341) 676; Mogaji v.Odofin (1978) 4 SC 91 and Jokotoya v. Onimalu (1998) 13 NWLR (Pt.580) 157 at 166. In my view, the learned trial Judge in the present case has in his ruling of 25/5/92 relied so much on the weakness of the defendant’s case rather than emphasizing the primary duty of the plaintiff to prove his claims first (under both the equitable principle on the exercise of discretion by the court and section 137 of the Evidence Act (supra) which requires and enjoins the plaintiff as he who asserts to prove his assertions). Under the above principle and the provision of the Act (supra), it has been held that even where the defendant has failed to file a statement of defence (at all) it is still the duty of the plaintiff if he is to succeed in the case, to lead satisfactory evidence to warrant the grant of the declaratory or equitable reliefs in his favour and the non-denial or admission of the defendant cannot help or avail the plaintiff in the discharge of his burden or onus in this regard as he is to rely on the strength of his own case rather than the weakness of the defendant’s case – See Bello v. Eweka (1981) 1 SC 101: (1981) 12 NSCC 48 at 61: Orji v. Emovon (1991) 1 NWLR (Pt.168) 476: Titilayo v. Olupo (1991) 7 NWLR (Pt.205) 519: and Onu v. Agu (1996) 5 NWLR (Pt.451) 652. In view of my above consideration, I am of the firm view that despite the admissions in the defendant’s statement of defence in the present case, the burden or onus of proof was squarely on the plaintiff (as he who asserts) by virtue of the declaratory and equitable reliefs he claimed at the trial court and his non-denial (or his admission) of some of the issues raised by the defendants which are fundamental to the just determination of the case before the trial court (i.e. the issues of partition of the Lara Chieftaincy family land and the defendants continuous possession of the land in dispute. Thus, from the state of pleadings in the case even if the provisions of sections 135 and 136 of the Evidence Act (supra) were invoked by the trial Judge and rightly applied he would have found that the burden or onus was on the plaintiff as the party who would fail if no evidence at all was called or produced. Consequently, in the result of my consideration of issue 1, the sub-issues and its relevant ground of appeal (i.e. ground 1) have succeeded and they must be resolved in favour of the appellants. I accordingly hereby answer the issue in the negative and resolve it in favour of the said appellants.

By my above resolution of issue 1, I think I have sufficiently covered and dealt with the second issue of the appellants which is on whether or not the learned trial Judge was right in holding that the defendant admitted having the same root of title with the plaintiff to the land in dispute. Thus, as I have decided above, even if there are such admissions by the defendants, it will not assist or avail the plaintiff or absolve him from discharging the primary burden or onus of proof cast on him under the principle of law discussed above and the provisions of the Evidence Act which require him to first and foremost plead and lead cogent evidence in proof of his case without relying on the weakness of the defence before he will be entitled to the discretionary and equitable reliefs he claimed at the trial court. Consequently, even though the second issue as framed in the appellants’ brief can be answered in the affirmative, it should also be resolved in favour of the appellants. I accordingly so resolve it. I will now proceed to the third issue.

Under the third issue, the appellants are complaining against the finding of fact made by the learned trial Judge at page 21 (lines 1-5) of the record. The said finding is reproduced in the appellant’s brief as follows:-

“In other words the defendants have traced their title to Esibagun, the ancestor of the plaintiff. It is his case that the Loro Gbenla had divested himself and his family of their interests in the land now being claimed by the defendants”

It is submitted in the brief that the learned trial Judge made the above findings at the time when only the pleadings of the parties was before the court and there was no evidence adduced by either of the parties to support it. It is argued that the facts contained in the pleadings are not evidence and that a party who wishes to place reliance on facts pleaded ought to give evidence in proof of them. See Honika Sawmill (Nig.) Ltd. v. Mary Hoff (1994) 2 NWLR (Pt.326) 252 at 260; Insurance Brokers of Nigeria v. A.T.M. & Co. Ltd. (1996) 8 NWLR (Pt.466) 316 at 328-329; Obmiami Brick & Stone Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (Pt.229) 260 cited in the brief in support of the submission. It is reiterated that the learned trial Judge was wrong in making the above finding without the benefit of oral evidence.

It is further argued in the appellant’s brief that upon a closer and critical look at the parties’ pleadings there are strict irreconcilable and conflicting facts in the statement of claim and the defence which could only be settled by the court by or after calling and hearing evidence. It is pointed out that in the present case there was no evidence adduced by either of the parties and yet the court proceeded to make the above finding of fact on the pleading. This is said in the brief to have adversely affected the just determination of the issues canvassed by the parties for its final decision. It is contended further in the brief that the defendants (i.e. the appellants) do not in their statement of defence, admit the plaintiff’s case as contained in the statement of claim. Consequently in the absence of such admission, it is not open to the learned trial Judge to resolve the conflicts without the benefit of oral evidence. In the final leap of the appellants’ submission in their brief it is argued that the finding complained of under the issue touches the substantive matter to be decided in the case and it was wrong for the learned trial Judge to have resolved it by making a finding on it at an interlocutory stage in his ruling of 25/5/92 – See Globe Fishing (Ind.) Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265 at 294; Busari v. Oseni (1992) 4 NWLR (Pt.237) 557 at 589; and Kotoye v. Saraki (1993) 5 NWLR (Pt.296) 710 at 721 cited in the brief in support of the last point. We are finally urged not to allow the finding of the learned trial Judge to stand and to interfere by setting it aside.

In the respondent’s reply to the above submission, it is argued (in his brief) that the pleadings of the parties are not so strictly irreconcilable and conflicting that the learned trial Judge could not make a finding of fact or deliver the ruling complained of without oral evidence. Reference is made in the brief to paragraphs 1 – 16 of the statement of claim and paragraphs 1, 3-9 of the defence to show that:-

(a) both the plaintiff and the defendants are members of Loro Family of Ilesha;

(b) the land being claimed by the plaintiff is Loro family’s land to which both parties are entitled; and

(c) in paragraph 6 of his statement of claim, the plaintiff averred that as the holder of Loro chieftaincy title he is entitled under native law and custom to exercise right of management and control of the land in dispute.

It is submitted in the brief that by a critical and closer look at the parties’ pleadings (as mentioned above), the burden or onus of proof is on the defendant to prove how they became the exclusive owners of the Loro family land after it had been partitioned. Thus the burden of proof has shifted on the said defendants/appellants See Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt.5) 116; (1985) 7 SC 1 at 50-51 cited in support of the argument. It is also submitted in the brief that even if there was a contlict in the pleadings of the parties, it was not of such nature as to prevent the learned trial Judge from making a finding of fact or to deliver the ruling complained against by the appellants without calling oral evidence. Finally, we are urged in the respondent’s brief under the third issue to affirm the unassailable and impeccable ruling of the lower court and to dismiss the appellant’s appeal which is said in the brief to be misconceived.

From the above arguments and submissions in the two briefs under the third issue, the crucial points to be decided in resolution of the said arguments can be narrowed down as in the following two posers:-

(a) Whether upon critical look at the pleadings of the parties (as a whole) it can be said that the defendants/appellants have admitted the claims of the plaintiff/respondent.

(b) Whether there are conflicting or irreconcilable facts from the pleadings of the parties the resolution of which by the trial court could not be possible without the benefit of oral evidence.

I am of humble view that the first of the above posers has been tackled in my consideration of the first issue. It must be recalled that in my treatment of the first issue, I maintained that even if there was or were admissions by the defendants/appellants of the plaintiff/respondent’s claim, such cannot help or avail the said plaintiff/respondent who from the nature of the discretionary and equitable reliefs he claimed at the lower court, is still required to adduce evidence in proof of the said claims. Thus, the burden or onus of proof under the circumstances of the case was squarely on the respondent despite any admission by the appellants, to adduce evidence in proof of his pleadings based on his claim for declaration of title and injunction. In doing so he is to rely on the strength of his own case and not on the weakness of the defendant’s case. I do not wish to repeat the points I have earlier made on the matter under the first Issue.

On the second poser (as above), I am of the view that by looking critically at the pleadings of the parties as a whole, there are some facts in the statement of claim and in the defence which are conflicting and irreconcilable which could not be settled or resolved without the benefit of oral evidence. Such facts or issues include the claim to possession of the land in dispute made by both parties (see paragraph 13 of the statement of claim and paragraphs 21 and 22 of the statement of defence). Also, while the plaintiff/respondent pleaded that the land being Loro Chieftaincy land had never been partitioned and was never an estate of inheritance, the defendants pleaded otherwise (see paragraphs 14. 16. and 22 of the statement of claim and paragraphs 8, 9, 11, 12, 21. and 22 of the statement of defence). There are other paragraphs from the pleadings of the parties apart from the above cited ones which are in sharp conflict and utterly irreconcilable. Even if the issue of possession of the land in dispute is taken as a model or an example, since both parties are claiming to be in possession of the land in dispute and possession being a very relevant or material issue to the claims of the plaintiff/ respondent, which are for title, trespass and injunction, there is no way that the learned trial Judge could resolve the issue without the benefit of oral evidence. So also is the issue of partition or otherwise of the land in dispute which is agreed to be a family land the declaration to which cannot be granted to an individual unless it is shown (or proved) that the land was partitioned. See Yoye v. Olubode (1974) 1 All NLR (Pt.II) 118. It is trite that mere averment in pleadings without proof by evidence of the pleaded facts cannot take the place of the proof required by law and that pleadings are not a substitute to evidence. In the present case, the plaintiff/respondent who pleaded that he was in possession of the land in dispute which was specifically denied by the defendants/appellants has the burden of adducing oral evidence to prove his assertion – See Kalio v. Woluchem (1985) 1 NWLR (Pt.4) 610; Okagbue v. Romaine (1982) 5 SC 133; and Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578, (1990) 7 SCNJ 111 at 120. In respect of my above considerations, I agree with the submissions in the appellants’ brief that from the conflicting averments in the pleadings of the parties, the learned trial Judge could not have made any finding on the issues raised without the benefit of oral evidence. Furthermore, the finding of fact by the learned trial Judge complained of by the appellants, is on a matter that would ultimately and eventually be decided in the substantive suit and it should not have been decided at the interlocutory stage (i.e. in the ruling of 25/5/92) – See Mortune v. Gambo (1979) 3-4 SC 54; Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt.26) 39; Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt.216) 124; Ogbonnaya v. Adapalm (1993) 5 NWLR (Pt.292) 147 and Tidex (Nig.) Ltd. v. NUPENG (1998) 11 NWLR (Pt.573) 263. The third issue must, under my above considerations, be answered in the negative and also resolved in favour of the appellants.

Finally, with my resolution of all the issues in the appeal in favour of the appellants, their appeal has succeeded and must be allowed. It is hereby accordingly allowed by me. The ruling of the lower Court dated 25/5/92 is hereby set aside. In its place, I hereby order the respondent as plaintiff to begin by opening his case and adducing evidence (whether oral or documentary) in proof of his case (or claim) as set up in his statement of claim. I assess the costs of this appeal at N3,000.00 which I hereby award in favour of the appellants and against the responent.

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Other Citations: (2000)LCN/0720(CA)