⦿ CASE SUMMARY OF:
CHIEF ADEBAYO BASHORUN OLUFOSOYE & ORS. v. JOHNSON O. OLORUNFEMI (1989) – SC
⦿ LITE HOLDING
A court of law cannot make declaration on a vague and imprecise land plan.
⦿AREA OF LAW
Trespass to land
Vague delineation plan
Findings of fact
CHIEF ADEBAYO BASHORUN OLUFOSOYE & ORS.
JOHNSON O. OLORUNFEMI
(1989) JELR 42916 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The Plaintiffs/Appellants claimed in the Court of first instance the following:- 1. “A declaration of title under Native Law and Custom to all that piece or parcel of land situate lying and being at Oke Obara, along Ondo/Akure Road, Ondo, which is more particularly shown and verged Red in plan No. JFO 6642 … 2. ₦1,000.00 being general damages for trespass. 3. Perpetual injunction restraining the Defendant, his servants, agents and privies from committing further acts of trespass on the said land.”
The substance of the evidence of the Plaintiffs is that the land in dispute which is somewhere along Ondo/Akure road which originally belonged to Oba Ajilalu, the Osemawe of Ondo, devolved on his death on his son Loduti who later became head of the family. On the death of Loduti, his brother Ajaka became head of the family and inherited the land. Plaintiffs are the descendants of Loduti and Ajaka. Plaintiffs claim by right of inheritance and the exercise of acts of possession by farming the land and making grants to the Anglican Church and Moslem Community. The Defendant they claim is not a member of their family but has been selling portions of the land. The family of the Plaintiffs have made no grants of any part of the land to the Defendant.
On the other hand, the defendant claimed he bought the land in dispute from Chief Jomu Akinnawo, a member of the Idoko family and some other lands in the same area from Chief Jomu Akinnawo’s children. He denied selling any land on behalf of Chief Jomu Akinnawo. He was merely looking after some of the portions of the land for him. He was aware of the fact that resulting from a dispute in the Okedoko family the land was partitioned among its members including Chief Akinnawo.
After due trial on relevant and available evidence Afonja, J. of the Ondo State High Court dismissed the plaintiffs’ claims as contained in the writ and their pleadings.
In his judgment dismissing the claim of the Plaintiffs the learned Judge found on the evidence of the Plaintiffs that the area of the land claimed by them were uncertain, and included certain portions of land already alienated by them, as shown on Exhibit C. He held that the Plaintiffs were not entitled to a declaration to any of the portions of land in dispute already so alienated by their family. In the circumstances the Court was unable to determine with precision the area of the land in dispute in respect of which the plaintiffs may be entitled to a declaration of title and other reliefs sought in their claim. The learned Judge held that Plaintiffs were not entitled to the area of the land claimed as shown on Exhibit C, the plan, which constituted the basis of their claim.
Dissatisfied and aggrieved the Plaintiffs appealed, to the Court of Appeal Benin Division, against the said judgment of Afonja, J. In a lead judgment delivered by Ete, JCA, (in which Omoigberai Eboh and Okagbue, JJCA concurred), the Court of Appeal upheld the judgment of the trial court and dismissed in its entirety the appeal of the Plaintiffs.
The present appeal to this Court is from that judgment of the Court of Appeal.
1. Could the Court of Appeal and can this Court on the printed record declare either the Plaintiffs or the Defendant owners or owner of the land in dispute?
2. When will it be necessary in the interest of justice to order a Non Suit?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: A NONSUIT OF THE CASE WAS ENTERED]
1. THE SUPREME COURT HELD THAT AN APPELLATE COURT CANNOT DECLARE WHO HAS TITLE WHEN THE TRIAL COURT DID NOT MAKE FINDINGS OF FACT.
i. It is trite law that an appellate court cannot undertake, on the printed record, to make findings of fact and thus resolve the conflicting claims of the contending parties without encroaching dangerously on the preserve of the court of first instance which saw the witnesses, heard them testify, watched their demeanour and was thus in vantage position to believe or disbelieve and then make appropriate findings of fact.
2. THE SUPREME COURT ANSWERED ISSUE 2 THUS: When a trial court fails in this duty he has merely decided half the case and not the whole case. From the several cases I considered earlier on when a trial judge fails in his duty to make appropriate findings on all the issues of fact, an appellate court usually orders retrial. A non-suit produces the same effect. The plaintiff is thereby allowed to relitigate the issues in controversy. Broadly speaking therefore a non suit is a termination of an action which did not adjudicate all relevant issues on the merit, as where a plaintiff was unable to prove his whole case and it will be unjust to dismiss such case in its entirety or where there was a failure by the trial judge to make proper and specific findings and an appellate court can neither do the same on the printed evidence, there a rehearing or a non suit depending on the circumstances of the particular case, may be ordered.
Can this court give judgment for the Plaintiffs/Appellants? I guess not. During his address on the 2nd November, 1988 Mr. Adegbesan for the Appellants conceded that a non suit will be the appropriate order in this case. The failure of the trial court to make any findings on the traditional history of the Plaintiffs and on their acts of ownership and possession leaves this court with no foundation on which to posit a declaration in favour of the Plaintiffs/Appellants.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Oputa JSC
The Appellants failed to clear this hurdle and normally their appeal should have been dismissed but for the fact that no findings were made on the issues of title based on the traditional evidence of the Plaintiffs and conveyance pleaded and testified to by the Defendant nor was any findings made on the question of possession claimed by both parties.
It is only for the above reason that justice demands that both parties be given another chance to establish their claims. In the final result and for all the reasons given above the trial court should have entered a non suit. This it did not do. The Court of Appeal should also have entered a non suit. This the Court of Appeal again did not do. I will allow this appeal and enter a non suit. I will make no orders as to costs.
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
From a long line of cases, it is clearly evident that it is the policy of this Court not to interfere with the concurrent findings of the two courts below. This policy is predicated on, and presupposes that, the court of first instance evaluated the evidence, exercised its right to believe or disbelieve witnesses, and then finally arrived at specific findings on the issues of fact arising from the pleadings and evidence as presented to the court for resolution. When that had been done and the Court of Appeal confirms the findings of the trial court, then an appellant is confronted with a rather uphill task. There again, such an appellant will be required to show either that the findings were perverse thus leading to an obvious miscarriage of justice or that there was a violation of some principle of law or procedure. – Oputa JSC. OLUFOSOYE v. OLORUNFEMI (1989)
There is a duty in a trial court to receive all available relevant evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation. But very often in actual practice it is difficult to say when perception ends and evaluation begins. – Oputa JSC. OLUFOSOYE v. OLORUNFEMI (1989)
Adjudication in our courts is our human attempt, (however imperfect), circumscribed as it is by our human limitations, to do justice between the parties before the court. It is of the essence of justice and fairness that cases are decided on their merits. This imposes a duty on the trial judge to consider all the issues arising between the parties before deciding for or against any such party. When a trial court fails in this duty he has merely decided half the case and not the whole case. – Oputa JSC. OLUFOSOYE v. OLORUNFEMI (1989)
I think it is an elementary requirement of our land law that the first duty of any plaintiff claiming from the court a declaration of title to land is to show clearly the area of land to which his claim relates:- Akinola Baruwa v. Ogunshola (1938) 4 W.A.C.A. 195. This duty a plaintiff can discharge, either by describing the land with such particularity that a surveyor can from his description produce an accurate plan of the land:- Kwadzo v. Adjei (1944) 10 W.A.C.A. 274 or, by himself producing an accurate plan of the land showing precise boundaries. If the plan is inaccurate in the sense that the boundaries are imprecise or that the oral evidence does not tally with the details appearing on the plan, then the trial court will be justified in regarding such a plan as vague and unsatisfactory and again justified in refusing to find a declaration of title on such a plan: Udekwe Amata v. Udogu Modekwe and Ors. (1954) 14 W.A.C.A. 580. The reason for insisting on accurate plans is simply to enable the parties and other persons claiming through them to know precisely the area of land to which the judgment and orders relate:- Maberi v. Alade (1987) 2 N.W.L.R. (Part 55) 101 at p.106. Enforcement of a judgment and order of injunction based on an inaccurate plan will create difficulties, untold difficulties. Where parties own land abutting a common boundary that common boundary will be shown with particularity and precision: Okorie and Ors. v. Udom and Ors. (1960) 5 F.S.C. 162 at p.166; Udofia & anor. v. Afia and ors. Andy v. Akpabio and ors. (1940) 6 W.A.C.A. 216. Another feature of our land law which has to be kept in view while considering Issue No. 1 above is that where a party claims a specific area of land and can only prove title to a part of that area of land or where the defendant concedes part of the land claimed, the court can grant the plaintiff title to the area proved or conceded but if; and only if, that area is definite and can be easily hatched out of and excised from the total area claimed, see Abudu Karimu v. Daniel Fajube (1968) N.M.L.R. 151 and Anukwua and ors. v. Ohia and ors. (1986) 5 N.W.L.R. (Pt. 40) 150 at p.161. Otherwise the declaration may be rightly refused. – Oputa JSC. OLUFOSOYE v. OLORUNFEMI (1989)
The Plaintiffs/Appellants in this case claimed a declaration, damages for trespass and an injunction. Such a claim should be tied on to a definite and specific area of land so that any enuring judgment for the plaintiffs may inform the defendants what the opinion of the court is as to the limits of their rights and not expose them in the exercise of such rights to the consequences of violating an injunction based on a plan like Ex. A which not containing precise boundaries leaves the land in dispute vague and imprecise. It is not for the Defendant/Respondent to find out what portions of Ex.A belongs to the Plaintiffs/Appellants and what portions do not. That is the first hurdle a claimant to land will clear i.e. to establish the precise area he is claiming. – Oputa JSC. OLUFOSOYE v. OLORUNFEMI (1989)