Jimoh Garuba V. Isiaka Yahaya (2007)

LAWGLOBAL HUB Lead Judgment Report

A. AKINTAN, J.S.C

The appellant, as plaintiff, commenced this action at Omu-Aran Upper Area Court in Kwara State in a representative capacity against the respondent, also in a representative capacity. His claim was for declaration of title to a parcel of land lying and being at Sapati Oloko Nla Osin in Asa Local Government Area of Kwara State. The claim was not admitted by the defendant and as such the parties led evidence in support of their rival claims. To that end, the plaintiff (now appellant) called four witnesses while the defendant (now respondent) called seven witnesses. At the close of evidence for the defence, the trial court visited the locus In quo before delivering its reserved judgment.

The plaintiff’s case was that the land in dispute belonged to the plaintiff’s fore-father, Oladejo, a son of Afonja. Oladejo was said to have settled on the land which started from Osin Budo Are where he first settled and extended his farming land up to Modi village and shared boundary with Jalimodi Alale and Adiloju Suhu. Oladejo, the plaintiff’s said ancestor, did not meet anybody on the land when he settled thereon apart from those with whom he shared boundaries.

The plaintiff then traced his ancestry from Oladejo to the present members of the family. He claimed that their title on the land had never been challenged. The action was instituted when the defendant, Alfa Tafa, started to build his house on part of the land without seeking for permission from the family. He was challenged but he rebuffed them.

The defendant denied the plaintiff’s claim and set out a rival claim to the entire land. The defendant contended that the land belonged to his great grandfather called Musa who came from Oyo Oranmiyan (first Oyo). When Musa arrived on the land, there was no settlement in the whole area. The man was the first person to settle there and the whole area was first called Budo Musa. But that name was later changed to Oloko Nla village. Later, one Digunlese came to join Musa Oloko Nla. But Digunlese later moved to a nearby area called Omoroko also called Aba Digunlese. One Sanni, a junior brother of Digunlese also came and settled at Oko Odo Ile close to Digunlese. The contention of the defence was that there was an agreement between Kelani who succeeded Musa on the land that Sanni and his brother, Digunlese, would be paying tributes annually for the use of the portion of land they occupied. They and their successors were paying the agreed homages ever since then.

The defendant denied that his family ever shared boundary with the plaintiff’s family. Rather, they claimed that they were tenants on the land they occupied. The Upper Area Court entered judgment for the plaintiff/ appellant. But on appeal to the High Court, the appeal was allowed and the plaintiff’s claim was dismissed. The plaintiff’s appeal to the court of Appeal was dismissed. The present appeal is from the decision of the Court of Appeal dismissing the plaintiff’s appeal. The parties filed their briefs in this court. The appellant filed an appellant’s brief and an appellant’s reply brief while the respondent filed a respondent’s brief. The appellant formulated the following four issues as arising for determination in the appeal:

“1. Whether it was proper for the Court of Appeal to have simply affirmed the decision of the Omu-Aran High Court and dismissed the appellants’ appeal without any supporting evidence.

2. Whether the Court of Appeal was right when it found that it was proper for the Omu-Aran High Court to have re-evaluated and reconsidered the entire evidence and drew different inferences from that of the trial Upper Area Court.
3. Whether on the preponderance of evidence the plaintiff/appellant is entitled to a declaration of title over the land in dispute.
4. Whether it was proper for the Court of Appeal to have dismissed the appellant’s appeal merely on the procedure adopted by the trial Upper Area Court in first evaluating the evidence of defending/respondent before that of the plaintiff/appellant.”

The respondent, however, narrowed down the issue to one in the respondent’s brief. The single issue is as follows:

“Whether it was proper for the Court of Appeal to have affirmed the decision of the Omu-Aran High Court and instead dismissed the plaintiff/appellant’s appeal.”

The respondent raised a preliminary objection to the competency of the appeal. But this was abandoned at the hearing before this court.

The main attack of the lower court’s judgment, as canvassed in the appellant’s issues 1, 2 and 3 is that both the lower court and the Omu-Aran High COURT were in error when the two courts held the Omu-Aran Upper Area Court was wrong in the conclusions and inference drawn from the totality of the evidence led before it. It is submitted that the basis on which the Court of Appeal premised its reason for dismissing the appellant’s appeal is not supported by either the evidence led at the trial or from the judgment of the trial Upper Area Court. The re-evaluation of the entire evidence led at the trial by the High Court is said to be totally untenable and wrong. Reference is made to the modes of proving ownership of land as enunciated in Idundun v. Okumagba (1976) 10 NSCC 445 at 453, (1976) 9-10 SC 227 and Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41, (1985) 16 NSCC (Pt. 11) 838 at 848, namely, by traditional history, by estoppel per rem judicatam which approximate to production of document of title, and by acts of ownership such as allocation to others or allowing others to use part of the disputed land which includes receiving rents or tributes. It is then submitted that the findings made by the Omu-Aran High Court confirmed that there were cogent traditional evidence given by the appellant at the trial to warrant and support the decision of the Upper Area Court in favour of the appellant. It is argued that there was no basis for the High Court to re-evaluate and reconsider the evidence led before the trial court.

The previous judgments tendered at the trial as exhibits P1 and P2 were said to have been tendered to show that the plaintiff/appellant’s father once had a dispute over the land in dispute with one Sunmonu where the court gave judgment in his favour and not that they were tendered to raise the issue of res judicata as misconstrued by both the High Court and the Court of Appeal. The trial Upper Area Court was therefore right in relying on the said document in giving judgment in favour of the plaintiff/appellant.

The point raised and canvassed in the appellant’s issue 4 is the criticism of the trial court’s mode of evaluating the evidence led at the trial. It is alleged that the lower court was critical of the trial Upper Area Court in that it started by first evaluating the evidence led by the defendant before embarking on that of the plaintiff. This is said to be wrong on the part of the lower court in that what is required of an Upper Area Court is generally to do substantial justice devoid of any technicalities. It is submitted that since the Upper Area Court did substantial justice in the case, there was totally no justification in tampering with its decision or re-evaluating the entire evidence.

The respondent has argued in the respondent’s brief that all the attacks of the appellant were directed against the judgment of the Omu-Aran High Court and not the Court of Appeal judgment which is on appeal in this court. References are made to the grounds of appeal filed and it is argued that from their particulars, they never arose from the decision of the lower court but that of the High Court on appeal to the lower court.