➥ CASE SUMMARY OF:
Chief Adefioye Adedeji V. J. O. Oloso & Anor. (SC.60/2002, 26 Jan 2007)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Title to land.
➥ CASE FACT/HISTORY
The appellant was the plaintiff at the Ilesha High Court and the respondents were the defendants. The appellant (herein after referred to as ‘plaintiff’) in his amended statement of claim dated 16/11/88 claimed against the respondents (hereinafter referred to as ‘the defendants’) the following reliefs:
“(i) A declaration that the Risawe of Ilesha by virtue of his office under Ijesha native law and custom and by the provisions of the Chiefs Law of Oyo State is the only person entitled to a statutory right of occupancy in respect of all the land situate within his palace or official residence called Akodi/Ereja quarter, Ilesa. (ii) A declaration that the rooms occupied as shops by the defendants at 18, Ereja quarter, Ilesa are situate within Risawe chieftaincy palace (Akodi), lsida, Ilesa. (iii) Forfeiture of the 2nd defendant’s right of user, licence or tenancy conferred under native law and custom. (iv) Ejectment of the defendants from aforesaid rooms or shops. (v) Account and payment to the plaintiff of all rents paid or payable in respect of the rooms or shops at the rate of N50 per shop per month as from 1st January, 1973 until the final determination of this suit.”
The parties later filed and exchanged pleadings. The suit was heard by Ademakinwa, J. On the state of pleadings upon which the suit was heard, the defendants called evidence first. They called two witnesses in addition to the 1st defendant. The plaintiff testified in support of his claims. On 26-06-96, the trial Judge in his judgment dismissed the plaintiff’s suit. The plaintiff was dissatisfied with the judgment. He brought an appeal before the Court of Appeal, lbadan (herein after referred to as ‘the court below’). The court below, on 3-4- 2001 in a unanimous decision dismissed plaintiff’s appeal. Still dissatisfied, the plaintiff has come on a final appeal before this court.
➥ ISSUE(S)
I. Whether or not the parties had in the course of proceedings before the High Court come to a settlement of issues, relied on a wrong and inappropriate part of the proceedings of the High Court and in the process denied itself the opportunity to fairly determine the matter?
II. Whether the court below, was in error to have affirmed the judgment of the High Court and in particular, that part of it which held that the transaction between the plaintiff’s grandfather and the 2nd defendant’s father concerning the land in dispute amounted to a sale of the land in dispute on the 2nd defendant’s father?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[ISOLATION OF ISSUES DOES NOT AMOUNT TO A CONSENT JUDGMENT
‘Having regard to what I have said above, it is clear that the isolation of issues for determination from the pleadings is not and cannot amount to a consent judgment as was argued by the plaintiff’s counsel in his written brief before us. It is only one, of the ordinary methods, employed by the court in the resolution of issues between the parties to a dispute and to which attention must be directed in the judgment after the parties shall have led evidence. Even if the court below had mistakenly referred to another passage in the record of proceedings before the High Court instead of those of 6-2-90, I do not see how that could have caused a miscarriage of justice to any of the parties. The mistake in my view has no effect of any kind on the judgment of the lower court. I decide issue 1 against the plaintiff.’]
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↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE DEFENDANT FAILED TO SHOW THAT THE LAND WAS SOLD TO THEM (HIS FATHER)
‘The 2nd defendant did not plead the names of persons who witnessed the transaction. Neither did he also plead the names of such persons who witnessed the handing over of the land. At the trial the 1st defence witness Hon. Justice Abayomi Olowofoyeku in a part of his evidence testified thus: “It was an out and out allotment that was made to my grandfather for which he paid some consideration of 3,000 cowries and two bottles of gin. The members of Risawe family were present at the allotment and shared the consideration among themselves. Members of my grandfather’s family were also present. After the consideration has been paid, my grandfather was put in possession in the presence of members of Risawe family and members of my grandfather’s family.” The question that necessarily arises is: if 1st DW knew so much about the transaction why could the 2nd defendant not plead and lead evidence as to the names of persons who witnessed the sale, transaction and the handing over of the land in dispute.’
‘The trial court was clearly wrong in granting the 2nd defendant a reprieve for the consequences at law attending upon his failure to plead and testify as to the names of persons who witnessed the sale transaction and the handing over of the land. Even if such witnesses were dead and could not be called as witnesses, the obligation to plead their names and testify concerning them was not removed. It was the particularity with which their names and description were pleaded and given in evidence that would assist the court in determining whether the evidence was credible. It seems to me that in the circumstances, the inevitable conclusion to be arrived at is that the 2nd defendant failed to prove that the land was sold to his father under customary law.’
‘I think with respect that the court below was in error not to have adverted its mind to the failure of the 2nd defendant to plead and establish in evidence the fact that the plaintiff’s grandfather sold the land in dispute to the 2nd defendant’s father. The formalities for a valid sale under customary law were not established. See Cole v. Folami (1956) 1 FSC 66; (1956) SCNLR 180. Rather than consider this serious lacunae in the case of the 2nd defendant, the court below concerned itself with the fact that the 2nd DW testified that the previous holders of the Risawe title had not demanded nor collected customary rents or tributes from the Olowofoyeku family of the 2nd defendant; and that the 2nd defendant family had been in possession of the land for a long time. It is apparent that the court below fell into that error’ because it did not sufficiently advert its mind to the nature of customary tenancy under the native law and custom.’
‘The fact that the 2nd defendant’s family had not been paying rents as pleaded and given in evidence by the 1st DW does not by itself lead conclusively to the fact of the 2nd defendant’s family’s ownership of the land. Having failed to prove a sale to his family, the 2nd defendant has only exposed himself to the inference that his family had over the years been in default of their obligations as – customary tenant. See Okuojeror and Ors. v. Sagay and Ors. (1958) WRNLR 71;(1958) SCNLR 188. It did not establish ownership of the land. The court below in the lead judgment stated that the 2nd defendant’s family had been in long possession of the land. But it failed to bear in mind that the said long possession could not on the state of pleadings be considered adverse to the plaintiff’s title.’
THE LONG POSSESSION OF THE DEFENDANT/RESPONDENT WAS NOT ADVERSE
‘In the circumstances of this case, the long possession of the 2nd defendant’s family could not be adverse to the plaintiff’s title since the case made by the plaintiff was that the 2nd defendants came only on the land in dispute as a tenant to plaintiff’s family. Adverse possession by a defendant is one which derogates from and is inconsistent with the ownership title of a person who claims to be true owner of the land. A tenant’s possession cannot be adverse to the ownership of his landlord. From what I have said above, it is manifest that the High Court erred in holding that the 2nd defendant’s family had bought the land in dispute from plaintiff’s family when clearly the requisite formalities of a valid sale under customary law were not established. The court below was also in error to have affirmed the judgment of the High Court.’]
.
.
.
✓ DECISION:
‘In the final conclusion, this appeal succeeds. The judgment at the trial court and the court below are set aside. Plaintiff’s claim I succeeds. I accordingly grant it. Plaintiff’s claims (ii) to (v) are refused. I award in favour of the plaintiff N2,500.00, N5,000 and N10,000 respectively for appearance in the High Court, court below and this court. This makes a total of N 17,500.00.’
➥ FURTHER DICTA:
⦿ AN ISSUE IN A CIVIL PROCEEDING – FACTS ADMITTED
An ‘issue’ in a civil proceedings conducted by pleadings in the High court emerges where, the court upon a comparison of the averments in the statement of claim, and the statement of defence identifies the matters really in dispute between parties and upon which it is necessary to lead evidence. It is a well established principle of pleadings that there is no dispute between parties on matters which have been admitted on the pleadings and generally, evidence on such admitted matters is to be excluded. See section 74 of the Evidence Act; The British India General Insurance Company and Nigeria Ltd. v. Thmwardas (1978) 3 SC 143; and Okparaeke v. Egbuonu and Ors. (1941) 7 WACA 53 at 55. The isolation of issues, truly in dispute, from those not in dispute, enables the court to save valuable time and cost. It is, by this process, that the court is enabled only to receive evidence on matters in respect of which the parties are in dispute. — Oguntade JSC.
⦿ WHAT IS A CONSENT JUDGEMENT
A consent judgment means when the parties unequivocally agree to terms of settlement which they mutually refer to the court as basis for the court’s judgment. By their mutual agreement to settle the matter, they have given their consent to the end of the litigation. That makes it a consent judgment. See generally R. Lauvers Import-Export v. Jozebson Industries Co. Limited (1988) 3 NWLR (Pt. 83) 429; Woluchem v. Wokoma (1974) 3 SC 153; N.W.R.D. v. Jaiyesimi (1963) 1 All NLR 215; (1963) 2 SCNLR 37. — Niki Tobi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
G. A. Oguntade, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
***DISSENTING
**NIKI TOBI JSC:
- THE PLAINTIFF/APPELLANT DID NOT PROVE THAT THE LAND WAS ON THE STOOL LAND
From the state of the pleadings, the burden to prove that the shops were at the material time located in the stool land is on the appellant who was the plaintiff at the trial Court. Did he discharge the burden? The evidence-in-chief of the appellant is towards the end of page 26, the whole of page 27 and five lines at page 28. He did not say much. He mainly tendered letters he wrote to the respondents and the subsequent replies. He gave further evidence under cross-examination at pages 28 and 29. 1 have carefully examined the evidence and I do not see any proof on the part of the appellant that the shops were on the stool land. And what is more, the appellant did not call any other witness to testify on this very important aspect of the case. - THE BURDEN OF PROOF THAT THE DEFENDANT IS NOT A LICENCEE IS NOT ON THE DEFENDANT
Section 139 of the Evidence Act provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in his evidence. I have searched in vain evidence that the 2nd defendant’s father was given a licence which made the 2nd defendant a licensee. The appellant is a legal practitioner and I expected him to mention in his evidence that the 2nd defendant is a licensee. He did not. He also did not give evidence to enable this court infer that the 2nd defendant is a licensee. Do we say that the burden of proof that the 2nd defendant is not a licensee is on the 2nd defendant? It cannot be. It is clearly on the appellant. It is only when the appellant has proved that the 2nd defendant is a licensee that the probative burden of proving the contrary is on the 2nd defendant. It is new to me that a plaintiff who claims title to land or property turns around to say that the burden is on the person who says that he is not the owner of the property. I ask: who fail in this case if no evidence is led? Is it the appellant or the respondents? Certainly the appellant is the person who will fail and he cannot, with the greatest respect, pass the burden to the respondents.
**A. M. MUKHTAR JSC:
- THE BURDEN OF PROOF WAS ON THE PLAINTIFF/APPELLANT AND HE FAILED TO FULFILL SAME
The plaintiff gave evidence in proof of his pleadings, but funny enough he did not deem it fit or necessary to call the descendants of the beneficiaries of the largess of his grandfather, to give evidence in accordance with the averment in paragraph (15) supra. I think this is where he fell short of proving his case, for such evidence of the descendants of late Ariyo Abede and late Anjorin etc would have gone a long way to buttress the claim of the appellant that the ownership of the shops that are the subject matter in controversy were still vested in the appellant’s family, (either as a family land or stool land). The appellant clearly did not prove what he asserted in his claim, and in the circumstance the burden of proof cannot shift to the respondents. See section 137(1) and (2) of the Evidence Act supra. It is only when a party has proved his assertion and discharged the burden placed on him by law that the burden shifts. See Elias v. Disu (1962) 1 All NLR 214; (1962) 1 SCNLR 361; Arase v. Arase (1981) 5 SC 33; and Co-Operative Development Bank Plc v. Joe Golday Co. Ltd. (2000) 14 NWLR (Pt. 688) p. 506. Moreover a plaintiff can only rely on the strength of his case, and not the weakness of the defendant’s case, especially in a case for the declaration of title to land. See Woluchem v. Gudi (1981) 5 SC 291; and Obisanya v.Nwoko and Anor: (1974) 6 SC 69. I dismiss the appeal for it lacks merit.
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
