Raimi Adebayo Ayoola & Ors V. Alimi Lawal & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal is against the judgment of the Oyo Judicial Division of the High court of Justice of Oyo State holding at Oyo (the court below) which dismissed the appellants’ claim for declaration of title to land, damages and injunction, and granted the 1st-4th respondents’ counter-claim of title to the same piece of land, while it dismissed the 5th respondent’s counter-claim in its entirety.

Stated in concise form, the case of the appellants was that the disputed piece of land which is situate at Aboyun Ogun Village, Obananko road, Oyo in Oyo state was granted to their ancestor, one Melemuku Adisa, by Alaafin Abiodun Atiba for farming purposes. Their ancestor farmed the piece of land until his death. The appellants inherited the piece of land after the death of their ancestor. They continued farming seasonal crops thereon. It was in 1993 that the respondents, for the first time, interrupted the appellants’ farming activities on the land.

The respondents again entered the disputed land in 1995. They destroyed some seasonal crops and economic crops of the appellants. The respondents entered the disputed land for the third time in 1997 and destroyed more seasonal and economic crops alleging that the piece of land belongs to them through a grant to their ancestor, one Yahaya, by the same Alaafin Atiba. In a considered judgment, the court below found for the 1st-4th respondents by granting their counter-claim, while the appellants’ suit was dismissed.

The appellants were unhappy with the judgment of the court below. They appealed against it in a notice of appeal with six grounds of appeal contained on pages 131- 134 of the record of appeal (the record). Two issues for determination were extracted from the grounds of appeal as the issues for discussion in the appellants’ brief of argument dated 28.3.11 and filed on 30.3.11, thus-

“(i) whether the findings of full of the lower court is supported by Evidence. This issue is covered by Grounds (i), (ii), (v) and (vi) of the Grounds of Appeal.

(ii) whether the Default of the Learned Trial Judge to make any finding of fact and/or pronouncement on plaintiffs/appellants claim for General Damage and special Damages of N204,000,00 (Two Hundred and Four Thousand Naira only) is proper and has not caused injustice to plaintiffs/appellants. This issue is covered by ground (iv) of the Grounds of appeal”.

It was contended on the first issue that the PW1, one Mr. Benjamin Adebimpe Lala, gave evidence of the description of the disputed land which was not discredited under cross-examination, while the other five witnesses testified in accordance with the further amended statement of claim, but the court below erroneously held that the failure of the appellants to call the grantor, one Alaafin Abiodun Atiba, as a witness amounted to the withholding of evidence under section 149 (d) of the Evidence Act and that; the court below gave undue weight to the evidence of 1st DW who was unable to describe the disputed land, and the scanty evidence of the 2nd DW and 4th DW together with Exhibits C and C1, some receipts made during the pendency of the suit, which it did not weigh alongside the evidence of the appellants in the imaginary scale as required by section 137 of the Evidence Act occasioned miscarriage of justice to the appellants vide the cases of Sanusi v. Amoyegun (1992) 4 SCNJ 177 at 190-191, Kayaoja v. Bello and Ors. (2005) 4 NWLR (Pt.915) 327 at 338, Adebayo v. Shogo (2005) 2 SCNJ 60 at 67, Fagbenro v. Arobadi (2006) 2 SCNJ 326 at 343, Ogbuokwelu v. Umfanafunkwa (1994) 5 SCNJ 24 at 57, Nneji v. Chukwu (1996) 12 SCNJ 388 at 400 or (1996) 10 NWLR (Pt.478) 265 at 274.

The appellant’s brief contended on the second issue that the unchallenged evidence of the 4th appellant on page 48 of the record established the special and general damages pleaded in paragraph 40 (iii) of the further amended statement of claim on page 8 of the record which the court below did not evaluate nor pronounced upon in its judgment contrary to the cases of Enigbokan v. American International Insurance Company (Nigeria) Limited (1994) 6 SCNJ 168 at 179 – 180, Uka v. Iroko (2002) 7 SCNJ 137 at 156, therefore the appeal be allowed and the appellants’ claim at the court below be granted, while the respondents’ counter-claim at the court below be dismissed.

The respondents, brief dated 4.6.11 but filed on 6.6.11 adopted the issues for determination formulated by the appellants. The brief contended that the appellants did not show how section 149 (d) of the Evidence Act was misapplied by the court below; that the evidence of the contestants was painstakingly evaluated by the court below before it reached its judgment that the appellants who alleged grant from the Alaafin did not prove the grant, while the 1st-4th respondents proved the grant and were rightly given judgment in line with their counter-claim tied to the ascertained area of land in dispute vide Maigoro v. Bashir (2000) 11 NWLR (Pt.679) 460, Idundun v. Okumagba (1976) 9 – 10 SC 227 at 246 – 250, Thompson v. Arowolo (2003) 6 SCM (no pagination), Owoade v. Omitola (1988) NWLR (Pt.77) 413, Sanusi v. Amoyegun (1992) 4 NWLR (Pt.237) (no pagination), Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643, Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360, Sagay v. Sajere (2003) 6 NWLR (Pt.661) 310, Ochin v. Ekpechi (2000) 5 NWLR (Pt.656) 225, Adisa v. Oyinwola (2000) 10 NWLR (Pt.74?) 116, Nwokoro v. Nwosu (1994) NWLR (Pt.337) 172.

The respondents’ brief contended on the second issue that in light of the findings of fact made by the court below culminating in the dismissal of the appellants’ case on ground of the weakness of the evidence for the appellants it was unnecessary for the court below to pronounce on the issue of damages which was ancillary to the claim that was dismissed vide Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718, Law v. Opaluwa (2004) 9 NWLR (Pt.59) 567, Mill v. Hoff (1994) 2 NWLR (Pt.326) 262; accordingly the appeal should be dismissed as trespassers cannot benefit from their own acts of trespass.

The appellants’ issues for determination were adopted by the respondents. I too adopt them for the discussion as the said issues are germane to appeal,

The court below summarised the relevant portions of the pleadings, evidence of the parties, and submissions of their respective learned counsel on pages 117-123 of the record. It then found as a fact on the issue of proof of title to the disputed land on pages 124-125 of the record that both the appellants and the 1st-14th respondents relied on a common grantor, one Alaafin Atiba, as their respective root of title to the disputed land. It followed up the finding with another finding that the appellants did not call a witness from the grantor’s side to prove their claim that one Alaafin Atiba granted the disputed land to their ancestor, whereas the 1st-4th respondents called the 1st DW who testified on the authority of Alaafin that the land in dispute was granted by Alaafin to the 1st-4th respondents’ ancestor. The court below made another follow-up finding of fact tied to the first two findings that by calling the 1st DW, a representative of Alaafin, who testified in support of their evidence that Alaafin Atiba granted the land in dispute to their ancestor, the 1st-4th respondents proved better title to the disputed land by grant.

Of the six witnesses called by the appellants whose testimonies appear on pages 36-53 of the record, only the 6th PW, one Alhaji Rafiu Adekojo, gave evidence on pages 46-53 of the record on the issue of title to the disputed land by grant. No witness from Alaafin gave evidence for the appellants in support of the alleged grant.