Yesufu Adeosun & Anor V. Madam Ayisatu Jibesin & Ors (2000)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
This appeal is sequel to the judgment delivered in suit No. AB/140/88 before the High Court of Ogun State, Abeokuta Judicial Division on the 21st of May, 1993 whereupon Yesufu Adeosun, Fagbanla Babatunde Omoyele. For themselves and on behalf of Omoyele family – claimed against the defendants, Madam Ayisatu Jibesin, Sunday Ogungbade, Dauda Muraina Akiode as follows:-
(1) Declaration that the plaintiffs are entitled to statutory right of occupancy in respect of a piece or parcel of land situate, lying and being at Isale Abetu, Lantoro Abeokuta, Ogun State.
(2) A sum of N2,000 (Two thousand Naira) being damages for trespass committed by the defendants by demolishing iron sheet fence erected round the land by the plaintiffs and constructing another fence without the consent of the plaintiffs.
(3) Injunction restraining the defendants, their agents, servants and privies from committing further act of trespass on the said land.
In addition to the foregoing in paragraph 34 of the statement of claim the plaintiffs asked for special damages as follows:-
(a) The sum of N1,800 (One thousand eight hundred Naira) being the cost of the iron sheets destroyed by the defendants.
The 1st and 2nd defendants filed a joint defence and counter-claimed as follows:-
(a) Declaration that the 1st and 2nd plaintiffs family (who are the 1st and 2nd defendants in the original action) are entitled to apply for a statutory right of occupancy over that piece or parcel of land situate, lying and being at Isale -Abetu Abeokuta Ogun State of
(b) N500 (Five hundred Naira) damages for trespass committed by the defendants) who are the plaintiffs in the original action) on the plaintiffs family who are the defendants in the original action land without the consent and authority of the 1st and 2nd plaintiffs family who are the 1st and 2nd defendants in the original action.
(c) Perpetual injunction restraining the defendants (who are the plaintiffs in the original action) their servants, agents or privies from committing further acts of trespass on the land.
The 3rd defendant – Dauda Muraina Akiode did not take any steps to defend the action.
The facts of the case in a summary are that the plaintiffs, now appellants before this court, are members of Omoyele family; who traced their genealogy to one Adeniyi, who in turn came from Ile-Ife to settle on a large parcel of land at Isale Abetu, Lantoro, Abeokuta Ogun State. The appellants inherited the land in dispute from their fathers who were descendants of Adeniyi. They pleaded various act of ownership like Adeniyi building a house on a portion of the land and farming on the rest, and made grants to one Keshinro Wahabi and Olayiwola and Alhaji Raimi.
They granted a lease of the land in dispute to one Alani Akinloye to build a poultry in 1978. In 1985, the defendants now respondents planted some pillars on the land in dispute which the appellants uprooted. The respondents sued the appellants to court – but the action was struck out for want of prosecution. After this action – the respondents came into the land in dispute and demolished the iron sheet fence and poultry belonging to the tenant of the appellants. The 1st and 2nd defendants/respondents traced their entitlement to the disputed land through their ancestor one Agbobiewe around 1830. Agbobiewe came as a hunter from Itoko and established Agbobiewe village. In establishing acts of ownership, the family granted land to Sir Polemola Alake of Egbaland to build the prisons. This was later converted to deformed Congolese soldiers yard, and later to an asylum. The respondents planted mango trees on the land and dug clay for people for pottery-making. They claimed peaceful possession of the land through various descendants of the original settler till 1978 when they observed that there was a foundation as well as a fence on the land. They thereafter sued to court but the sickness of the 3rd respondent prevented them from pursuing the action. In 1985, the respondents planted their pillars after damaging the appellants’ fence. The receipt in respect of the damaged fence and photographs to show the destruction were tendered as Exhibits C, D-D3 respectively. The appellants held that they sold land to one Abibatu who occupied the land for eighteen years until she died in 1986. The respondents also filed a counter-claim – where they asked for reliefs against the appellants as mentioned earlier on in this judgment. Both parties exchanged pleadings in the counter-claim. In a bid to ascertain the identity of the disputed land both parties engaged the services of surveyors who tendered the survey plans as Exhibits E and H which are in respect of the same area of land – during the course of trial. At the conclusion of the trial before the High Court, the claims of the appellants were dismissed, while the trial court gave judgment for all the respondents in terms of their counter-claim.
Being aggrieved by the decision of the trial Court the appellants lodged an appeal to this court by filing notice of appeal containing ten grounds of appeal, while an amended grounds of appeal pursuant to the order of court was filed on the 2nd of March 1998. The grounds of appeal without the particulars are as follows:-
(1) The learned trial Judge erred in law in dismissing the plaintiffs’ case when the plaintiffs proved their case by traditional evidence and act of ownership.
(2) The learned trial Judge erred in law in making findings that were crucial in his determination of the action when such findings were either borne by evidence led or contrary to the evidence so led at the trial.
(3) The learned trial Judge misdirected himself on the facts when he found as follows:-
“I find as a matter of fact that the plaintiffs family land is the area shown ‘A’ in Exhibit ‘E’ and it is directly opposite the defendants family land. The Oluwo Road divides the plaintiffs land from the defendants land.”
(4) The learned trial Judge having found that the evidence of both parties do not agree, erred in law in failing to apply the test laid down in Kojo II v. Bonse & Ors. (1957) 1 WLR 1223.
(5) The learned trial Judge failed to consider or did not consider adequately the evidence of recent acts of ownership proferred by the plaintiffs.
(6) The learned trial Judge erred in law in giving judgment for the defendants on their counter-claim when the said counter-claim was defeated by laches, acquiescence and standing-by
(7) The learned trial Judge erred in law in holding that the defendants counter-claim is not statute-barred.
(8) The judgment is against the weight of evidence.
Thereafter, counsel for the parties settled records and in pursuant to the rules of the Court of Appeal 1981 as amended parties filed and exchanged briefs of argument. The appellants relied on their briefs filed on the 4th of March, 1998 – in which they distilled five issues for determination as follows:-
(1) Whether the learned trial Judge was right in dismissing the plaintiffs’ case?.
(2) Whether the learned trial Judge was right in law to have made crucial findings which were either borne by evidence or at variance with evidence adduced at the trial?.
(3) Having regard to the conflicting evidence of traditional histories adduced by the parties, whether the learned trial Judge adopted the correct approach in resolving the conflict?.
(4) Whether the defendants counter-claim is not defeated by laches, acquiescence and standing-by?.
(5) Whether defendants counter-claim is not statute-barred. The issues flow from the eight grounds of appeal filed by the appellants?.
The respondents rely on the brief of argument filed on the 15th of December, 1998. They did not formulate any issues for determination. This is obviously the right juncture to commend on the respondents brief of argument settled and signed by their learned counsel Mr. Agboola. The respondents brief in this appeal is a glaring example of intellectual laziness in brief writing. The brief itself covers five pages – the first three pages concentrated on the summary of the evidence of parties before the trial Court – which can be passed for information on facts of the case at the trial Court, and the last two pages were devoted to the replies to the five issues for determination, by way of two or three short sentences to each issue. It is remarkable and noteworthy that, he did not cite any single case – and I have no list of authorities forwarded to court by him. The learned counsel is to be reminded that an appellate court is set up to correct the errors or mistakes of any of a trial Court, while justices of appeal cannot make out a case for the parties on the records of appeal.
The essence of brief writing is to assist the appellate court in the delicate task of decision making. The counsel obviously needs to undergo pupilage in brief writing.
I therefore strongly recommend reading text books and reported cases on brief writing to him – else his style, might end up doing substantial injustice to his clients cases. Unfortunately, though bad briefs complicate work of justices, but however bad, clumsy, shallow, shoddy, inelegant and prolix a brief – may be, it still has to be considered in the interest of justice. Obiora v. Osele (1989) 1 NWLR (pt.97) 279 at pg 300; Akpan v. State (1992) 6 NWLR (Pt.248) pg.439.
This court has to consider this brief as the respondents brief. In my line of thinking the appellants issues can be compressed and reduced into three issues. Issues numbers 1-3 can come under one umbrella as follows:-
(1) Whether the learned trial Judge was right to have dismissed the plaintiffs case when he made crucial finding unsupported by evidence and he failed to invoke the principle of law applicable in resolving conflict in traditional evidence?. This issue relates to grounds 1, 2, 3, 5 and 8 of the amended grounds of appeal.
(2) Whether the defendants’ counter-claim is not defeated by laches acquiescence and standing-by?.
(3) Whether the defendants counter-claim is not statute-barred?.
Mr. Afolabi Fashanu learned Counsel for the appellants while adopting his brief, in his submission pointed out the errors and omissions of the learned trial Judge. He stressed the fact that though the appellants proved their case by both traditional evidence and act of ownership – the lower court failed to adopt the correct approach in resolving conflict in the evidence of traditional histories of the parties – the evidence of Yesufu Adeosun on pages 56-58 of the record of appeal, while the trial Judge remarked in passing that-
“The next thing is to look into the traditional evidence of both parties.”
He failed to do just that – vide page 85 lines 35-36. The trial Judge expected the appellants to call evidence of grant of adjoining land granted by them as evidence of ownership of the land in dispute – while the law recognises five ways by which ownership of land may be proved- Vide Balogun v. Akonji (1988) 1 NWLR (Pt.70) page 301.
As regards location of the land, the respondents pleaded specifically in paragraph 91 of their counter-claim that the boundary between the defendants/counter claimants and plaintiffs/appellants family land has been the Oluwo Itoko village road while the plaintiffs father never laid claim to the land across the road – Vide page 40 lines 23-29, page 86 lines 26-28 of the record which the appellants deny. The respondents called DW2 and DW4 to testify to this effect. DW2’s house and appellants land are on the same side of the road and the land in dispute is opposite. The finding of the trial Judge on the location of the land is perverse – where finding is perverse an appellate court must disturb it. He referred to the cases of Nwoke & Ors v. Okere & Ors (1994) 5 NWLR (Pt.343) page 159 at 172; Awoyale v. Ogunbiyi (1986) 2 NWLR (pt.24) pg 626 at 643; Woluchem v. Gudi (1981) 5 SC pg 291. The learned trial Judge believed the evidence of DW4 – which is at variance with the pleadings – page 881ines 1-9 of the record. The finding of the learned trial Judge about the location of the land is perverse vide page 87 lines 24-28 of the record. The learned trial judge made findings not supported by evidence – and which formed the basis for this conclusion at page 88 lines 5-9 of the record that-
“I cannot see how the plaintiffs could come and own only 2 parcels of land B and C in Exhibit E while the defendants would own the rest in that area as shown in Exhibit ‘H’.
The learned trial Judge speculated in arriving at such conclusion – which is clearly not permissible by law. The court should interfere and set aside the findings. The learned Counsel cited the cases of Overseas Constructions Co. Ltd v. Creek Enterprises Ltd. (1985) 3 NWLR (pt. 13) page 407 at 414; Agholor v. A.-G., Bendel State (1990) 6 NWLR (Pt.155) pg 141 at 150; Onwe v. The State (1975) 9-11 SC 23, (1975) 1 All NLR (Pt.2) 16; Kano v. Oyelakin (1993) 3 NWLR (Pt.282) pg.399Â Â at pg 419; Salami v. Gbodoolu & Ors. (1997) 4 NWLR (pt.499) pg 277 at 293. The learned trial Judge did not weigh carefully the evidence adduced by both parties in line with Mogaji v. Odofin (1978) 4 SC pg 91 and also failed to properly evaluate the said evidence, particularly the evidence of PW2 and PW3. The learned trial Judge found that the traditional evidence of both parties do not agree but he failed to resolve the conflict by applying the principle in Kojo II v. Bonsie (1957) 1 WLR pg 1223 that is testing the stories by reference to acts or facts in recent times. If the learned trial Judge had followed the approach he would have found for the appellants. This court is to evaluate the evidence of act of ownership adduced by both parties in line with the case of Emordi v. Kwentoh (1996) 2 NWLR (Pt.433) 656 at pg 686, Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (Pt.341) pg 676, 694, 699, 701 and 711 – and find for the appellants.
Mr. Agboola learned counsel for the respondents submitted as a reply that the learned trial Judge reviewed the traditional evidence of both parties – and considered various acts of ownership before giving judgment for the defendant. On issue no.1 for determination our Property Law is adorned with an array of cases – where the principles of ownership of land are enunciated. It is now settled that there are five recognised ways by which ownership of land may be proved under our legal system. These methods are:-
(1) Through traditional history or evidence
(2) By grant or production of document of title
(3) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land.
(4) By acts of long possession
(5) By possession of connected or adjacent land in circumstance rendering it probable that the owner of such land would in addition be the owner of the land in dispute.
In the instant case, from the state of pleadings and the evidence before the court, it is quite clear that the appellants relied firstly on traditional history and subsequently on acts of ownership and possession. Idundun v. Okumagba (1976) 9-10 SC 227 at pages 246-250; (1976) 1 NMLR 200; Atanda v. Ajani (1989) 3 NWLR (Pt.111) pg.511; Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386; Mogaji v. Cadbury Nigeria Ltd (1985) 2 NWLR (Pt.7) pg 393; Alli v. Alesinloye (2000) 6 NWLR (Pt.660) 177; Eze v. Atasie (2000) 10 NWLR (Pt.676) 450.
The appellants relied on one Adeniyi their progenitor who migrated from Ile-Ife and settled on the land. The respondents/counter-claimants in the lower court rested their title on Agbobiewe who settled on the land from Itoko. The parties who are the descendants of these men inherited the disputed land. The burden is however squarely on a party claiming declaration of title to adduce credible, convincing, positive and unequivocal evidence in support of his case. Such plaintiff must succeed on the strength of his own case. Kodilinye v. Odu (1935) 2 WACA 336; Udegbe v. Nwokafor (1963) 1 All NLR 417, (1963) 1 SCNLR 184. The evidence in support of his case must be in accordance with the pleadings. Uchendu v. Ogboni (1999) 5 NWLR (Pt.603) 337. The learned trial Judge reviewed the traditional evidence of the parties on page 77 lines 31-38, page 78 lines 1-6, lines 22-35, page 79 lines 1-4. On proof of title, the learned trial Judge referred to the five methods by which ownership of land could be proved, and that in this case the appellants have tried to rely or use traditional evidence and possession of adjacent land as well as acts of ownership by granting land to persons including the 2nd PW and 5th PW. That the defendants in resisting plaintiffs claim also relied on traditional evidence, long possession, possession of adjacent land and grants of adjacent land. The learned trial judge said on page 85 lines 35-36 of the records that:-
“The next thing is to look into the traditional evidence of both parties which do not agree as both traced title to different ancestors”.
Where evidence of traditional history is found to be cogent, not in conflict with that of the defendant and accepted by the court, it can support a claim for declaration of title to land. Once traditional history succeeds, there is no need to consider any of the other sources of acquiring ownership of land. It is trite and well established that the five methods are independent of each other. In this case, it is apparent that the parties pleaded and proved acts of ownership, exclusive possession of the land by their progenitors and their descendants including themselves. A party who claims title to land is not bound to plead and prove more than one root to succeed. If he relies on more than one root, that is merely to make assurance doubly sure.  Balogun v. Akanji (1988) 1 NWLR (Pt.70) pg.301; Ademolaju v. Adenipekun (1999) 1 NWLR (Pt.587) pg 440. There are hurdles to be climbed by a plaintiff who relies on traditional history to prove ownership of his land. Mogaji v. Cadbury Nig Ltd. (1985) 2 NWLR (Pt.7) pg. 393. I shall return to consider the effect later in this judgment. The learned Counsel for the appellants raised the issue of the identity of the land in dispute – and the findings of the learned trial Judge as to the location of the disputed land. The learned trial Judge had this to say on page 86 lines 31-33.
“It is however clear that DW2’s house is a bit far away from the land in dispute, but it is on the same side with the land in dispute.”
On page 87 lines 24-28 that-
“I find as a fact that the plaintiffs family land is the area shown ‘A’ in Exhibit “E” and it is directly opposite the defendants family land.
The Oluwo road divides the plaintiffs land from the defendants land”.
The learned Counsel for the appellants regarded the foregoing as not only perverse but also a misdirection. On pleaded facts and evidence before the court, the court had adequate evidence on the land in dispute – and the family land of both parties. In paragraphs 5 and 6 of the statement of claim – the appellants pleaded –
Paragraph 5 “The land in dispute is situate lying and being at Isale Abetu and is particularly described and shown on Plan No. ALS/OG/10/89 drawn by Adebola Olusesi licensed Surveyor verged Green and marked ‘C’
Paragraph 6 “The land in dispute forms part of a large parcel of land originally owned by Adeniyi verged Red and marked ‘A’, ‘B’ and ‘C’ in the plan described in paragraph 5 above”.
In the statement of defence filed pursuant to order of court on the 20th day of April, 1990 and the counter-claim – paragraphs 12 and 23 the respondents has this to say Paragraph 12 “The 1st and 2nd defendants state that the land in dispute is situate lying and being at Isale-Abetu, and is more particularly described and delineated on plan MA H 1181/OG/89 drawn by M. A. Hassan licensed Surveyor. The 1st and 2nd defendants will rely on the survey at the hearing of the suit.”
Paragraph 23 “The 1st and 2nd defendants aver that their family land founded by Agbobiewe including the land in dispute is bounded as follows:- in the North by Oluwo Itoko village road, on the West by Oluwo Ifa family land, and on the East by Itesi Community land”,
At page 57 lines 33-34 the 1st appellant gave evidence that the dispute relates to only one plot.
The surveyor PW3 Adesola Olusesi gave evidence and tendered Exhibit as the Survey of the land of the appellants land, He mentioned that the any area not developed in Exhibit E – verged red and green is the land in dispute Vide page 61 lines 17-18 of the records.
Mr. Hassan Adenuga – the surveyor employed by the respondents tendered Exhibit H. He revealed on page 64 lines 16-19 that –
“Both Exhibits E and H relate to the same area. The portion marked ‘A’ in Exhibit ‘H’ is the same as ‘C’ in Exhibit ‘E’ and that is the area in dispute in both Exhibits”.
As regards identity or location of the land in dispute, it is the duty of a plaintiff in a suit for declaration of title to show the court clearly the area of land to which the claim relates. Moreover, before a declaration of title is granted, the land to which the claim relates must be identified with certainty. If it is not so ascertained, the claim must fail and it must be dismissed. Epi v. Aigbedion (1972) 10 SC 53; Adeleke v. Balogun (2000) 4 NWLR (Pt.651) pg 113; Nwogo v. Njoku (1990) 3 NWLR (Pt.140) pg 570 at pg 575; Baruwa v. Ogunsola (1938) 4 WACA 159.
There is overwhelming evidence that there was no mistake as to the identity of the disputed land. Exhibits E and H the survey plans of the land show the same area. The purpose of ascertaining the exact area of the land in dispute is to enable the parties or anybody claiming through them to know the precise area to which the judgment of court relates for the purpose of enforcement and to obviate the possibility of future litigation on that particular area. Nwogo v. Njoku (1990) 3 NWLR (Pt.140) pg 570 at 582. Parties know from the overwhelming evidence and were ad idem as to the location and boundaries of the land in dispute. I would regard the remarks of the learned trial Judge as a misdescription which is not fundamental to his decision in this case from page 84 lines 1-34 it is certain and well convincing that the learned trial Judge was conversant with the disputed land from the evidence.
The learned trial Judge came to the conclusion at page 87 lines 24-28 on the evidence of the parties reviewed and weighed by him.
The court found at page 86 lines 34-35 and page 87 lines 1-3 that:-
“The other adjoining lands to the land in dispute belongs to Odusina and Aweni Lugboso. The evidence of the defendants is that these two people got their land from defendants family. It is only Asabi that did not acquire his land from the defendants family.”
The learned counsel for the appellants held that there was no evidence to this effect. The foregoing is supported by page 86 lines 11-13, page 81 lines 30-34. and page 86 lines 15-18, page 81 lines 9-13 and the plans Exhibits E and H.
Another remark of the learned trial Judge under attack is at page 88 lines 5-9 of the record that
“I cannot see how the plaintiffs could come and own only two parcels of land ‘B’ and ‘C’ in Exhibit E while the defendants would own the rest as shown in Exhibit ‘H’ “.
I agree that looking at the totality of the evidence of the parties analytically the learned trial judge could not but come to this conclusion. The learned trial Judge did not by any means speculate but his findings were supported by evidence. What the learned trial Judge said on page 87 lines 18-20 was that-
“In the first place the plaintiffs deny ever knowing the defendants and testified that they have never heard about the defendants family before 1985.”
I agree with the learned counsel for the appellants that the foregoing was obviously a wrong interpretation of the appellants evidence – who would have known the respondents as their neighbours but had never seen them on the disputed land. What I regard as the major point for consideration is the evaluation of evidence adduced by both parties in line with Mogaji v. Odofin (1978) 4 SC 91 and whether he therefore came to the wrong decision, whether he failed to evaluate the evidence of PW2 and PW3 properly – while he was carried away by the evidence of DW2. The learned trial Judge reviewed the evidence of both parties extensively as from page 78 to page 85, as to acquisition of ownership of title to land. He came to the conclusion at page 87 lines 16-18 that he was more inclined to believe the evidence of the defendants/respondents in this case which he preferred to that of the plaintiffs/appellants – and supported same with reasons. He based these reasons on the evidence of witnesses vide page 87 lines 18-24, 29-34 page 88 lines 1-14. He consequently dismissed the plaintiffs action for title, trespass and injunction. He considered the case of the respondents on their counter-claim and expressed his satisfaction that they have proved the origin and nature of their possession of the land in dispute. He gave them declaration of title, found for them in trespass and granted them injunction as they were already in possession of the disputed land. Civil cases are decided on preponderance of evidence and the balance of probabilities. If the burden of proof is not discharged on the principles of preponderance of evidence or balance of probability a trial Judge will dismiss the claim, and an appeal court will have no business to interfere with such findings of the trial Court. Elias v. Omo-Bare (1982) 5 SC 25; Odulaja v. Haddad (1973) 11 SC 357; Woluchem v. Gudi (1981) 5 SC 291.
The duty of a trial Judge in the evaluation of evidence is well defined and properly illustrated in a plethora of cases. A trial Judge must thoroughly examine the evidence before him – in and out, before making any decision in a case. The principle governing the evaluation of evidence by trial Courts is that the totality of the evidence should be considered in order to determine which has weight at all. In deciding, whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by other party, the trial Judge, after a summary of all the facts, weighs one against the other, then decides upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it, if that supports it bearing in mind the cause of action he will then find for the plaintiffs. If not the plaintiffs claim will be dismissed. Thus before the trial Judge comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale. He will put the evidence adduced by the plaintiffs on one side of the scale and that of the defendants on the other side of the scale and weigh them together.
He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. Finally after invoking the law, if any that is applicable to the case the trial Judge will then come to his final conclusions based on the evidence which he had accepted. Mogaji v. Odofin (1978) 4 SC 91; Karibo v. Green (1992) 3 NWLR (Pt.230) pg 426.
It is pre-eminently the duty of the trial Court to see, hear and assess each witness as to whether he should be believed or not, and where the trial Court has discharged that responsibility the Court of Appeal will not interfere with such finding unless they are shown to be perverse, unsupported by evidence or based on evidence not legally admissible. Short of citing the case of Mogaji v. Odofin the learned trial Judge without doubt properly evaluated the evidence of witnesses in the case. There was an occasion in which his conclusion about the plaintiffs/appellants not knowing the defendants/respondents was a misinterpretation of the evidence – I would not regard that as erroding his conclusion in the matter. The Counsel for the appellants made heavy weather of the evaluation of evidence of the learned trial Judge. He was of the impression that it was perverse, speculative and out of context with the evidence before the court. A finding of fact will be perverse – where it is speculative and not based on any evidence, where the court took into account matters which it ought not to have taken into account, or where the court shut its eyes to the obvious. Ihewuezi v. Ekeanya (1989) 1 NWLR (Pt.96) pg 239; Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) page 360; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) page 1. I cannot agree that the findings of fact of the learned trial Judge – were perverse in the instant appeal. Besides traditional history, both parties relied on acts of ownership and possession of the land. It is noteworthy that, the learned trial Judge based his evaluation and findings of fact substantially on the traditional evidence of both parties. At page 85 lines…he said that –
“The next thing is to look into the traditional evidence of both parties which do not agree as both traced title to different ancestors.”
He examined the root of title to the land, and enumerated their activities on the land which would buttress their claim to possession and ownership of the land in question. He compared the evidence of root of title of the parties with the strings of their activities on the land, and placed the evidence side by side before weighing them on that imaginary scale. By way of conclusion having considered the evidence and demeanour of witnesses extensively and exhaustively he said on page 88 lines 10-14-
“I believe that the plaintiffs have proved ownership to parcel ‘A’ in Exhibit ‘E’, but the plaintiffs have not so proved ownership of the land in dispute. The traditional evidence of plaintiffs did not extend to area B and C in Exhibit E and therefore the plaintiffs action must fail.”
It is apparent that what the learned trial Judge expressed in the foregoing is that the plaintiffs/appellants did not succeed on the strength of their own case. The appellants failed to prove the radical title pleaded by them in respect of the disputed land. Other evidence of acts of possession and ownership was meant to strengthen their claim to inheriting the land from their ancestors. It is also necessary to amplify on the nature of the evidence which the learned trial Judge considered after the evidence of the parties that they acquired the disputed land through their respective ancestors – Adeniyi and Agbobiewe. The appellants gave evidence of grants of the land to various people including one Wahabi Olayiwola who gave evidence as PW2. He mentioned names of those who farm on the plaintiffs land. Joseph Alani Akinloye gave evidence of a lease of the land from the appellants for his poultry business – and he had been on the land since 1978 – until the respondents came to destroy his poultry in 1988 – and one Abibatu – now deceased. The respondents called one Taofik Sanusi – who emphasised that the disputed land is only one plot. He gave evidence that he bought his land from the respondents 20 years ago. Ayisatu Ajibesin, the 1st defendant/respondent gave the names of members of their family who had developed their lands in the area of the land in dispute. The family granted land to build a prison during the reign of Sir Oladapo Ademola II – where a mental hospital now stands in the vicinity of the land. One Soboji farmed on the land in dispute. All these grants and events are within living memory. The evidence in respect of these various grants were considered by the learned trial Judge on page 86-88 – before dismissing the plaintiffs claim. What the learned trial Judge did in resolving the dispute in respect of this land, particularly when he found that the traditional evidence of the parties do not agree as both traced their title to different ancestors was to test the traditional history against the other by reference to the facts in recent years as established by evidence and seeing which of the competing histories is more probable. This now takes me to examine what the principles in Kojo II v. Bonsie (1957) 1 WLR 1223 referred to by the learned Counsel for the appellants, and that failure to follow the approach to resolve the conflict in the traditional evidence of both parties was fatal.
The principles of Kojo II v. Bonsie relate to facts which the court should advert its mind to in coming to a conclusion on the probability of evidence of tradition. For the rule to apply the following conditions must exist –
(1) There must exist two stories of tradition, one by each party, which are themselves credible or plausible, but are in conflict with the other so that the court is unable realistically and justifiably to prefer one to the other.
In that case, either of the two stories may rightly be regarded as likely to be true or that they are probable. It follows that none of the stories in that situation is arbitrarily rejected but each one is tested against recent acts of possession and ownership to determine which of the two stories is more probable.
Once these are ascertained – the story that is less probable is rejected. The learned trial Judge in this case having acknowledged that the traditional evidence of the parties did not agree pronounced upon which of the traditional histories in relation to the recent acts of possession and ownership established from primary facts was not likely to be probable before he consequently dismissed the appellants claim. Eze v. Alase (2000) 10 NWLR (pt.676) pg 470 pg 482 paragraphs F-H; Kojo II v. Bonsie (1957) 1 WLR 1223; Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (pt.7) pg 393; Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (pt.341) pg 676; Okwaranonobi v. Mbadugha (1998) 7 NWLR (Pt.558) pg 487; Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) pg 116 SC. What the learned trial Judge failed to do was to proclaim in clear terms that he was invoking the principle of law in Kojo II v. Bonsie as would be expected. The learned trial Judge adopted the correct approach in arriving at his conclusion in this case though he did not cite the relevant cases. The learned trial Judge was obviously not wrong to have dismissed the appellants case.
Issue No 2
Whether the defendants counter-claim is not defeated by laches, acquiescence and standing-by?
In paragraphs 28 and 29 of the statement of claim at page 14 of the records, and paragraphs 9, 10 and 17 of the Reply to statement of defence and counter-claim at pages 73, 74 of the record evidence was proferred in support of this defence. The learned counsel for the appellants referred to the evidence of PW1 on page 56 lines 33-34 of the record that:-
“One Alani Akinloye was also granted land by our family for poultry in 1978”.
Also at page 57 lines 28-30 PW1 testified that:-
“Our family sold land to one Abibatu Ashabi an in-law and she built on the land she bought some eighteen years ago”.
This evidence was corroborated by DW2 at page 66 lines 17-19. People came on the disputed land at the instance of the appellants some 20 years ago, and were challenged. Poultry was observed on the land 8 years ago, while Abibatu dug the foundation of her building about 16 years ago.
The plea of laches, acquiescence and standing-by if properly considered is meant to defeat the respondents counter-claim. The learned Counsel cited the cases of-Atuanya v. Onyejekwe(1975) 3 SC 161; Oke v. Atoloye (1986) 1 NWLR (Pt.15) pg 241 at pg 251; Oduola v. I.C.C. (1978) Vol.II NSCC pg 252 at pg 259-260. In his reply, learned Counsel for the respondents, Mr. Agboola replied by relying on the evidence of DW3 and DW4. There was no laches, acquiescence and standing-by by the respondents. The learned trial Court found in respect of this plea at page 86 of the record as follows – lines 18-23.
“Further the evidence of defendants is that as a result of the presence of Ashabi on their land, they brought an action AB/21/85 which was struck out in 1988 by Exhibit “B” for want of prosecution. Therefore, the defendants did not acquiesce in that grant and I cannot find that, it amounts to ownership of the land in dispute.”
The doctrine of laches, acquiescence and standing-by have their roots in the equitable maxims that – Delay defeats equities, or equities aid the vigilant and not the indolent – Vigilantibus, non domiemibus jura subveniunt. A delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called ‘laches’. Laches essentially consists of substantial lapse of time coupled with the existence of circumstances which make it inequitable to enforce the claim. The doctrine of laches is not an arbitrary or technical doctrine. No hard and fast rule can be laid down with regard to this aspect of the law for each case will have to be determined with due regard to its own peculiar facts and surrounding circumstances. Anagbazo v. Sule (1996) 7 NWLR (Pt.461) pg 479; Kaiyaoja v. Egunla (1974) 12 SC 55.
The equitable defences cannot avail a defendant where there is no delay by the plaintiffs in enforcing his right after he has become aware of same. It is a weapon of defence more than that of attack. The respondents counter-claimed as per paragraph 96 of the statement of claim – for declaration of title, N500 damages for trespass and perpetual injunction restraining the defendants, their servants, agents, or privies from committing further acts of trespass on the land. The appellants now respondents in the counter-claim are now raising the defence of laches, acquiescence and standing-by in that the counter-claimants failed to act timeously when the appellants/respondents trespassed on their supposed land. It is apparent on the pleadings and the evidence adduced before the trial Court, that the respondents cannot avail themselves of the equitable defences – as when the counter-claimants became aware of the presence of one Ashabi – an in-law of the plaintiffs on the disputed land they brought an action AB/21/85 which was struck out in 1988. The copy of the proceeding is now Exhibit ‘B’ in this case vide page 86 lines 18-21. On page 80 lines 30-37 the 1st PW testified that in 1985 the respondents now counter-claimants destroyed the appellants/respondents family fence on the land and planted their pillars there. The counter-claimant also destroyed the poultry of Alani Akinloye a tenant of the respondents on the land in 1988. On page 84 the last witness for the counter-claimants revealed that the respondents in the counter-claim were brought before the Itoko chiefs who found in favour of the counter-claimants in respect of the land. I find it difficult from the foregoing chain of events and in the circumstance of this case to hold that the doctrine of laches and acquiescence can be invoked here or that the respondents were guilty of laches and acquiescence. The issue is therefore resolved in favour of the counter-claimants.
Issue No.3 – is whether the defendants counter-claim is or not statute-barred. The learned Counsel for the respondents in the counterclaim – Mr Fashanu submitted that under sections 4 and 6 of the Limitations Laws of Ogun State Cap 61 Vol. III Laws of Ogun State 1978 the action is statute-barred. In that, the trespass complained of being a tortuous act the prescribed time to institute such action is 6 years, while such provision for declaration to title is 12 years, vide section 4(a) and section 6(2) of the Limitation Law of Ogun State. The learned trial Judge relying on paragraph 63 of the statement of defence without reference to the evidence before him concluded that the cause of action arose in 1978 vide page 90 lines 11-19 of the record. The evidence on record shows that the appellants/respondents were first noticed on the land twenty years ago. The cause of action arose in 1973 and not 1978 as found by the trial Judge, while the appellants successor in title dug the foundation of her building about 16 years ago (1977) page 67 lines 27-28 of the record. The counter-claimant filed their claim in 1990 after the 12 years prescribed for action for declaration of title- consequently same is statute-barred. The learned Counsel for the counter-claimants Mr. Agboola in his brief reply – submitted that the alleged trespass was committed in 1978 according to the respondents counsel in his final address. The time lag between 1978 and 1990 when the statement of claim was filed is 12 years – the counter-claim was therefore filed within the time required by law. In deciding whether the counter-claim here is statute-barred or not one has to ask the important question and resolve – when the cause of action on this case arose? Even prior to that – the cause of action in this particular circumstance will have to be decided. What is cause of action has been given different definitions in a plethora of cases by our courts – it is however soothing that the array of definitions bear the same meaning and connotation.
I will however adopt the definition of the Supreme Court in the case of Akibu v. Oduntan (2000) 13 NWLR (Pt.685) page 446 at page 1463 paragraphs C-E that “A cause of action is defined as the entire set of circumstances giving rise to an enforceable claim. It is in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements:-
(a) the wrongful act of the defendant which gave the plaintiff his cause of complaint and
(b) the consequent damage”.
It is every fact that would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Savage v. Uwaechia (1972) 3 SC 213; Fadare v. A.-G. Oyo State (1982) 4 SC 1; Kusada v. Sokoto N.A. (1968) 1 All NLR 377; Murmansk State Steamship Line v. Kano Oil Millers Ltd (1974) 12 SC 1.
In deciding whether there is a reasonable cause of action the determining factor is the statement of claim. The court will need only to look at and examine the averments in the statement of claims of the plaintiff. Ajayi v. Military Administrator Ondo State (1997) 5 NWLR (Pt.504) page 237. In the instant appeal, the cause of action will be determined on the statement of defence with plan/counter- claim of the defendants/respondents – page 12-15, and pages 43-45 of the records. Counter claimants pleaded obvious and conspicuous acts of trespass on their land in paragraphs 63-69 of the counter-claim. That was the time the appellants and those who acquired the land through them performed positive acts of trespass by digging foundation. Certain acts of the appellants/respondents prompted them to file an action in court – AB/21/85.
The learned Counsel for the appellants Mr. Fashanu – submitted to the trial court on page 76 of the records that the cause of action in the counter-claim arose in 1978, surprisingly here now he is attacking the learned trial Judge that he based his findings on this piece of evidence. I hold that the finding of the learned trial Judge that the cause of action arose in the counter-claim in 1978 cannot be faulted. The land in dispute according to the evidence is the one plot of land occupied by the 5th PW for his poultry business. The other date which the court could have acted upon is 1985 – when the counter-claimants registered their protest against trespass on their land. A cause of action arises on the date when a breach or any steps taken would warrant a person who is adversely affected by the act of another to seek redress in court-Going by the counter-claim before the court – the cause of action arose in 1978 when the 5th PW established his poultry on the land. It is trite that a legal right to enforce an action is not a perpetual right – but a right generally limited by statute.
After the date on which the applicable statute says legal proceedings cannot be taken any person having a right of action can no longer competently institute an action. In other words, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law or act had elapsed. Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) pg 1; Obiefuna v. Okoye (1961) 1 All NLR 357.
If a plaintiff’s action is statute-barred it affects the legal competence or jurisdiction of the court. The relevant applicable law in the instant appeal is sections 4(1)(a) and section 6(2) of the Limitation Law Cap. 61 Vol. III Laws of Ogun State 1978. Section 4(1)(a) – “The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued that is to say –
(a) actions founded on simple contract or on tort”
Section 6(2) “No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right to action accrued to him or if it first accrued to some person through whom he claims, to that person.”
In the instant appeal which is an action in tort and for recovery of land shall not be brought after the expiration of six years and twelve years respectively.
The period of limitation of an action is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the counter claimants a cause of action and by comparing that date with the date on which the writ of summons was filed. If the date on the writ is beyond the period allowed by the limitation law then the action is statute-barred. Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) pg 1.
The writ of summons in suit No. AB/140/88 before the High Court of Justice Abeokuta was filed on the 19th of October, 1988. The 5th PW testified that the appellants/respondents in the counterclaim leased the land to him by an agreement dated the 1st of June, 1978. If the claim in respect of tort of trespass is caught up by the statute of limitation because of the six years limitation period the overall claim for the recovery of the disputed land still subsists as the counter-claim was filed on 24/4/90. The counter-claimants have up to December, 1990 to bring an
action for declaration of title. I confirm the learned trial Judge’s view that the counter -claim was not statute barred at the time the suit AB/140/88 was filed before the High Court of Justice Abeokuta – Issue No III therefore fails.
Finally, I hold that the error or misdirection of the learned trial Judge complained of by the appellants are not such that will decide this appeal one way or the other – and hence cannot occasion or justify reversal of the decision of the trial Court.
Where there was an error or omission committed by a court that did not form the basis of the decision arrived at by that court, the judgment appealed against will not be reversed on that ground alone. Salako v. Dosunmu (1997) 8 NWLR (pt.517) page 371.
I hold that this appeal lacks merit and is hereby dismissed. The judgment of the trial court delivered on the 21st of May, 1993 is hereby affirmed. N5000 costs is awarded in favour of the respondents/counter claimants.
Other Citations: (2000)LCN/0927(CA)