Oke-bola & Ors V. Molake (1975)

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S. SOWEMIMO, J.S.C.

In this appeal, certain submissions were made which impel us to re-state generally the rules governing pleadings to which this court had in several appeals drawn attention as guidelines.

It is a settled principle, that where a trial is conducted on the basis of pleadings, a judgment of the trial court shall be based on issues raised or joined in such pleadings. Legal evidence given, which is not referable to the pleadings should not be admitted because it goes to no issue, and where admitted inadvertently, should be ignored and expunged from the record for the purpose of making findings of fact.

Along with this settled principle is that which affects a rival party who has admitted the ownership by the other party of a property claimed; effect should be given to such admission not only in regard to the admitted fact but also its legal consequences; as in this case, the burden of proof shifts from one party to the other. The formulation of issue by a trial court, not based on the pleadings filed by parties in a case, may invalidate a judgment, because it was based on issues, which either party in the case did not raise in their pleadings, but for which they require a judicial decision.

The appellants, the Aladun and Osumba families, were the plaintiffs, and the respondent, the defendant, in Suit IK/135/69 tried in the High Court of Lagos State. They will be referred to as plaintiffs and defendant in this judgment.

The claims of the plaintiffs are for (a) declaration of title to a piece of land, (b) damages for trespass, and (c) injunction. In his judgment delivered on 15th March, 1974, the learned trial Judge dismissed the plaintiffs’ claim. In the penultimate paragraph of his judgment, the learned trial Judge said:-

“In this respect I accept in all essential details the evidence given by the defendant and his witnesses on the totality of the evidence. I must hold that the plaintiffs have not proved any item of their claim and the whole case must be dismissed.”

The plaintiffs being dissatisfied with the judgment have appealed to this court and these are the grounds of appeal argued before us:-

“1.  The learned trial Judge misdirected himself in law in holding as follows:-

“In my view strong evidence should have been led by the plaintiffs to rebut the averment that the persons named in the Mortgage Deed quoted in paragraph 5 of the statement of defence quoted above were not predecessors in title of the plaintiffs. The fact that they were referred to as native authorities, in my view, is of no importance. The onus which rests on the plaintiffs to disprove this important point made in paragraph 5 of the Statement of Defence has not been discharged and this is fatal to the case of the plaintiffs.”

Particulars of Misdirection

By  the rules in force in the High Court the onus is on the defendant to prove facts averred in the Statement of Defence and there is no obligation on a plaintiff to disprove the said facts. Accordingly, absence of evidence regarding such facts cannot possibly be fatal to the case of the plaintiffs.

“2.  The learned trial Judge misdirected himself in law and on the fact in holding as follows:-
Quite apart from the documents……………. there is ample evidence of acts of ownership by the defendant and his ancestors as well as the predecessors in title up to the time of this action. I am satisfied from the evidence that the defendants by the exhibits tendered and by all evidence has established long and exclusive possession of the land in dispute that he is the exclusive owner of the property now in dispute. The land in my view no longer belongs to the family of the plaintiffs.

Particulars of Misdirection