AMINU S. BAMISHEBI & ORS (APPELLANT)
v.
ZACCHEUS FALEYE & ORS (RESPONDENT)
(1987) All N.L.R. 235
Division: Supreme Court of Nigeria
Date of Judgment: 3rd April, 1987
Case Number: (SC. 164/1985)
Before: Bello C.J.N. Eso, Aniagolu, Uwais, Coker JJ. S.C
The plaintiff's claimed against the defendants a declaration of title to land situated at Igbo Elodi, Otta in Ogun State and an injunction restraining the defendants, their agents and servants from trespassing on the said land. There are three parties in the proceedings representing three families. The plaintiffs represent the Eledi Atala family, the 1st to 4th defendants represent Atelofobatoja (otherwise known as Itele) family, while the 5th and 6th defendants are representatives of the Odota family.
The plaintiff's case at the trial was their ancestor, Eledi Atala, was the first person to settle on the Land. During his life time, he cultivated the land, granted portions to various persons for farming as tribute paying tenants according to Yoruba native law and custom. Among the ancestors of persons granted portions of the land was one Odota, whose descendants (including 5th and 6th defendants) still farm on the land.
The two sets of defendants (Itele and Odota families) filed a joint defence. They denied that the plaintiff ancestor was original owner of the land or their progenitor, Odota, ever sought from Eledi or that he or his descendants granted any portion of the farmland. Their case was that Atelefobaloja (Alias Itele) the ancestor of 1st to 4th defendants, was the original owner, made customary grants of portions to various persons including Odota for farming. Odota at the request of Itele the original owner made subgrants to Atala alias Jagadu, the ancestor of the plaintiffs and to other persons.
The parties called evidence and it was not disputed that descendants of two of the three families (Eledi and Odota) were on the land farming and have sub-tenants thereon. The trial Judge entered judgment in favour of the plaintiffs. The defendants being dissatisfied appealed to the Court of Appeal against the decision and the plaintiffs filed a cross appeal against the order dismissing the claim for forfeiture. The Court of Appeal dismissed both the appeal and cross appeal. The defendants only Appeal to the Supreme Court and the first ground of Appeal is whether the Court below is right in upholding the decision of the trial court which rejected the plea of estoppel per rem judicatam founded on the judgment of Agbaje J (as he then was) in SUIT No. AB/39/66.
HELD:
(1) In my view, the question of title of the parties although raised was never decided by the 1966 case. What the 1966 case decided is that the plaintiffs were not in exclusive physical possession of the land as to make them competent to successfully claim for damages for trespass. The case of the plaintiffs in the instant case is that members of the Odota family who admittedly were on the Land farming are their tenants and not tenant of the Itele (1st to 4th defendants) family.
(2) It is not the duty of an appeal Court to interfere with the finding of a trial Court where such finding supported by evidence and is reasonable. The duty of an appeal Court is to determine whether the trial Court correctly decided the issues presented before it. The error committed in this case was that of the appeal Court, not that of the trial Court regarding the evidence of 2nd P.W. The error does not in my view affect the Correctness of the judgment of the trial Court and the final decision of the Court of Appeal.
Appeal dismissed.
Chief F.A.O. Oriade (with him N.A. Babafemi Esq) for Appellants.
Chief A. Fadayiro (with him A.F. Okunuga Esq) for Respondents.
Cases referred to
(1) Awooner Renner v. Annah & ors 2 W.A. 258.
(2) Kponugle v. Kalidja 2 WACA 24.
(3) Kwobodo v. Chief Federal Electoral Officer (1984) 1 SC.1.
(4) Okuoja v. Ishola (1982) 7 S.C. 314.
(5) Omogegbe v. Lawani (1980) 3-4 S.C. 108.
(6) Omoregbe v. Edo (1971) 1 ALL. NLR 282.
(7) Outram v. Morewood (1803 3 East 346.
(8) Oyediran v. Ama (1970) ALL N.L.R. 313,317.
(9) Sanyaolu v. Coker (1983) 3 S.C. 124,157.
(10) Samuel Fadior & Anor. v. F. Gbadebo & Anor. (1978) 3 S.C. 219 at 28.
(11) Surakatu I. Amida & Ors. v. Taiye Oshoboja & Ors. (1984) 7 S.C. 68 at 89.
(12) The State v. Okola (1974) 2 S.C. 73, 80.
(13) Woluchem v. Gudi (1981) 5 S.C. 291 at 326.
Coker, J.S.C. The Court of Appeal sitting at Abeokuta dismissed the defendants' appeal from the decision of Craig, C.J., of Ogun State High Court whereof on the 8th day of May, 1979, he entered judgment with costs in favour of the plaintiffs in their claim for declaration of title and for an order of injunction against the defendants, their agents and servants in respect of a piece of land situated at Igbo Elodi. Otta, in Ogun State, and more particularly described and verge 'Red' in a plan No. AK. 30 4B of 31st July, 1974. The defendants being dissatisfied appealed to the Court of Appeal against the decision and the plaintiffs filed a cross-appeal against the order dismissing the claim for forfeiture. The Court below, in a considered judgment dismissed both the appeal and cross appeal with costs. The defendants only have further appealed to this Court.
For a proper understanding of the issues raised in this appeal, I shall give a summary of the facts of the case. There are three parties in the proceedings representing three families. The plaintiffs represent the Eledi Atala family, the 1st to 4th defendants represent Atelefobaoloja (otherwise known as Itele) family, while the 5th and 6th defendants are representatives of the Odota family.
The plaintiff's case at the trial was that their ancestor, Eledi Atala, was the first person to settle on the land. During his lifetime, he cultivated the land, granted portions to various persons for farming as tribute paying tenants according to Yoruba native law and custom. Amongst the ancestors of persons granted portions of the land was one Odota, whose descendants (including 5th and 6th defendants), still farm on the land.
The statement of claim averred that
"The 1st to 4th defendants and members of their family, as were their ancestors have no title right or interest within the said Igbo-Eledi farmland and there is no history to connect them with any part or portion of the Eledi Atala family land."
and further
"That the 1st and 4th defendants have since 1962 continued to interfere with the possession, occupation and quiet enjoyment of Eledi Atala family over the said portion of plaintiffs' land."
The two sets of defendants (Itele and Odota families) filed a joint defence. They denied that the plaintiff's ancestor was original owner of the land or that their progenitor, Odota, ever sought from Eledi or that he or his descendants granted any portion of the farmland. Their case was that Atelefobaloja (alias Itele) the ancestor of 1st to 4th defendants, was the original owner, made customary grants of portions to various persons including Odota for farming. Odota at the request of Itele, the original owner, made sub-grants to Atala, alias Jaguda, the ancestor of the plaintiffs and to other persons.
The parties called evidence and it was not disputed that descendants of two of the three families (Eledi and Odota) were on the land farming and have sub-tenants thereon. Because of the importance attached to the evidence it will be necessary to comment on his (1st plaintiff) evidence and of 2nd P.W. Andu Makinde and those of other witnesses called by plaintiffs.
1st plaintiff, Zaccheus Faleye, in his evidence admitted that one Yesufu Oloyede, Yesufu Lemomu, Shitta Adesona and Suliyu Amodu have farms on the land. He said "all these I know are all brothers of 5th defendants they are all farming on the land in dispute."
As to how the 5th defendant came to farm on the land, 1st plaintiff said-
"Coker Adesona (5th defendant) got to our land through one Sanya-Sanya asked Eledi Atala for land for Adesona. Sanya is now dead."
"The 5th defendant not only refused to pay his customary dues, he also claimed the land as his.
"I do not know Sule Suberu-the 6th defendant. I know the 1st defendant and Alimi Elegbede, 2nd defendant.
We have sued these two defendants because they were part of the crowd who came to disturb us when we were surveying our land. I do not know the 3rd defendant, but I know the 4th defendant, Karimu Ajayi."
Andu Makinde, was 2nd P.W. The material part of his evidence is as follows-
"I am farmer. I have been farming before the Adubi war in 1914. My father Amose asked for some of the land from Eledi, and he was granted the land. My father used to pay yearly tribute to Eledi. He used to give maize and yams every year, as customary tribute. My father died, I took over the land and still farm on it till today.... I am head of the Idota family, I know the Itele family. My father did not ask for land from the Itele family."
"XXd by Adigun.
I admit that my father was not related to the Idota family but my maternal grandfather he was the head of Idota family and when he died, I became the Head of Idota family
I know Coker Adesona (5th defendant). He is a member of Idota family."
Italics mine.
It is clear from his evidence that he did not purport to derive his holding of the farmland through Odota or as a member of Odota family but through his father Amose who was not a member of Odota family.
The defendants called evidence in line with their defence. Aminu Sunmonu the 7th defendant testified that his ancestor Atelefobaloja (alia Itele) was the original owner of the land and Amosun, his only child, granted part of the land in dispute to Odota whose descendants are still on the land. He gave their names as follows-"Coker Adesona (5th defendant)
Isiaka Serikudi
Sola Amodu
Sule amodu
Sule Dakan Alamu
Suara Serikudi"
He denied that the 5th defendant was plaintiffs' family tenant.
The 5th defendant, Coker Adesona, gave evidence denying that his ancestor, Odota, was tenant of Eledi Atala or that of his family. He said Itele was the original owner who granted Odota, (his founding father), the land as customary tribute paying tenant and that member of his family are still farming on the land and pay customary tributes to the Itele family.
The first ground of appeal is whether the Court below is right in upholding the decision of the trial court which rejected the plea of estoppel per rem judicatam-founded on the judgment of Agbaje J.,(as he then was) in SUIT NO. AB/39/66.
Uncle-Omo, J.C.A., in the lead judgment of the court below, dismissed this ground to appeal. He examined critically Agbaje's judgment in order to discover what he decided and came to the decision that-
"Title in the 1966 case was neither the ratio of nor was it fundamental to a decision in that case. The trial Judge decided the case, correctly in my view without recourse to issue of title. He did not only say so, but explained why."
Before this Court, Chief Oriade, learned Counsel for the appellants, submitted that Agbaje's judgment operated as estoppel per rem judicatam on the issue of title to the land and the other reliefs claimed by the plaintiffs/respondents.
Learned Counsel would appear to labour under the erroneous view that it is immaterial whether or not that question was actually decided by the trial Judge because the question of title and right to exclusive possession were raised by the parties. In my view, in order to successfully establish the plea of estoppel per rem judicatam there must be a pronouncement and final decision on the particular issue. Put more precisely, there are three conditions which must be satisfied-the fact being relitigated must be-
(1) directly in issue in the case,
(2) actually decided (by a competent Court) and
(3) appearing from the judgment itself to be the ground on which it is based.
The claims in the 1966 case were for damages for trespass and for an order of injunction against the defendants. The judgment stated that Chief Tayo Coker, counsel for the plaintiffs submitted that title to the land in dispute was in issue. He cited Kponugle v. Kalidja, 2 W.A.C.A.24, Agbaje,J, in his judgment said as follows-
"In the case in hand which is founded on trespass to land the matters directly in issues are
(1) whether the Plaintiffs are in possession of the land in dispute at the time of the trespass alleged
(2) whether the defendants broke and entered the said land, if (1) and (2) are both answered in the affirmative
(3) whether the defendants had a legal justification for their entry upon the land."
It will be seen later that Agbaje J. was concerned only with the issue of possession, that is the first question. He did not consider the second and third questions.
He proceeded-
"I can now go to consider the case of the plaintiffs. As I said Chief Coker referred to me to the case of Kponugle v. Kalidija 2 W.A.C.A.24 for this submission that title is in issue in this. In that case the Privy Council said "The respondents' claim being one of damages for trespass and for injunction against further trespass it follows that he has put his title in issue. His claim postulates, in their Lordships opinion, that he is either the owner of Bunya land, or he has had prior to the trespass complained of exclusive possession of it."
But I do not think that because of the above statement of law by the Privy Council one own (sic) (can) dispense with what a plaintiff must prove to succeed in an action for trespass. Thus, it is my view that the principle of law enshrined in such decisions as Awooner Renner v. Annah & ors. 2 W.A.C.A.258 Namely, that in order to maintain an action for trespass the plaintiff must have a present possessory title-an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry, would still apply in this case."
In my view the case only establishes that the plaintiffs were not in exclusive physical possession of the land. The issue of possession is clearly separable from that of ownership of the land. Agbaje J. was concerned with trespass simpliciter and did not consider it necessary to decide the issue of title to the land. The learned trial Judge said:
"what the 2nd P.W. Zaccheus Falaye said-
"Nobody has ever disturbed us on Eledi land until about 10 years ago when the defendants prevented us from surveying it. The defendants damaged the survey pillars we buried on the land the defendants also damaged our crops on the land."
For the foregoing reasons I hold that the plaintiffs are not competent to maintain an action for trespass to the land
in dispute. Even if I accept the submission of Chief Toye Coker, Counsel for plaintiffs, that both the plaintiffs and their tenants are in possession of the land in dispute, which I do not for the reasons I have given above...."
In my view therefore, the question of title of the parties although raised was never decided by Agbaje, J. The principle is clearly stated by Idigbe, J.S.C. in Samuel Fadior & Anor. v. Festus Gbadebo & Anor. (1987)3 S.C.219 at p. 228.
"There is, however a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances "issue estoppel" arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty, and solemnity been determined against him. (See Outram v. Morewood (1803) 3 East 346). Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies)."
What the 1966 case decided is that the plaintiffs, were not in exclusive physical possession of the land as to make them competent to successfully claim for damages for trespass. The case of the plaintiffs in the instant case is that members of the Odota family who, admittedly were on the land farming, are their tenants and not tenants of the Itele (1st to 4th defendants) family.
The next question is whether the court below is right in upholding the decision of the trial court that it exercised its discretion judicially in granting plaintiffs declaration of title to the land in dispute on the evidence and its findings of fact. In other words whether the plaintiffs were entitled to judgment as pronounced by the trial court. The question is-was the court below right in holding that the plaintiffs discharged the onus of proof which the law places on them in a claim for declaration of title? The question arises in grounds 2, 4, 5 and 6 and may be conveniently taken together: Ground 3 was withdrawn and struck out. It was argued that the court below misdirected itself in holding that the learned trial Judge rightly found that the plaintiffs/respondents had established acts of ownership extending over a long period of time in respect of the land in dispute, when they (plaintiffs) failed to prove the very basis of their claim to declaration, namely that their ancestor, Eledi Atala granted the predecessor of the Odota family the right to farm on the land. The plaintiffs claim for declaration should have been dismissed, in the absence of credible evidence or recent numerous acts of exclusive user evidencing ownership of the land. Learned Counsel submitted that there was undisputed evidence that the 1st to 4th defendants farmed the land as owners and that their ancestor, Itele, granted portions to some people as customary tribute paying tenants, including Odota Counsel, Chief Oriade, further submitted that the court below erred in holding that the 5th and 6th defendants, representing the Odota family were customary tenants of the Eledi Family contrary to the specific finding of the trial Judge that they were tenants of Itele Family. The evidence of Andu Makinde who testified for the plaintiffs, counsel contended, should not have been held against the Odota family whom he did not represent. He cited Oyediran v. Amao (1970) All N.L.R. 313, 317 and Omoregbe v. Edo (1971) All N.L.R. 282, The State v. Okola (1974) 2 S.C. 73 p.80 and Sanyaolu v. Coker (1983)3 S.C. 124 p.157. Finally learned Counsel submitted that the decision of the court below is speculative, unreasonable and against the weight of evidence. The plaintiffs, he argued, failed to discharge the onus resting on a plaintiff seeking declaration of title.
In his reply, Chief Fadayiro, learned Counsel for the Respondents adopting brief, stressed the fact that the trial Judge did not rely on the evidence of 2nd P.W. alone. There were other witnesses called by the plaintiffs, whose evidence the trial Judge accepted. He conceded that the 2nd P.W. did not say he derived his grant of the farmland through the Odota family, but found that 2nd P.W. Andu Makinde was head of Odota family and since 1914 had been paying annual tributes to plaintiffs' family, and that his evidence was not challenged and accepted by the two courts. He submitted that the Appellants did not call their tenants as witness as the plaintiffs did and that there were concurrent findings in favour of the respondents. He cited Omogegbe v. Lawani (1980) 3-4 S.C. 108 and Mogo Chinendu v. Mbamalu and referred to Order 2 Rule 32 of the Supreme Court Rules 1985. He finally submitted that the decision of the trial court should be upheld because it was based on the totality of the evidence. The trial Judge relied on the evidence of three other witnesses besides that of the 2nd P.W. He also referred to the judgment where the trial court held that plaintiffs showed more acts of ownership over a larger portion of the land than the defendants. On the preponderance of evidence, counsel contended, the trial court found that only Adisa Adesona was shown as farming on the area in dispute, whereas all the four tenants of the plaintiffs were prominently shown on the plan on different parts of the land. He further submitted that the conflicts which existed in the evidence of Andu Makinde were trivial and did not affect the soundness of the judgment.
In Surakatu I, Amida & Ors. v. Taiye Oshoboja & Ors. (1987) 7 S.C. 68, at p. 89, Bello, J.S.C. (as he then was) stated the principle which I consider relevant to these grounds of appeal-
"A court of appeal ought not to embark on a fresh appraisal of the same evidence in order to arrive at a different conclusion from that reached by the trial court. An appeal court may only interfere with the findings of facts of a trial court if it is satisfied that the trial court in its appraisal and evaluation of the evidence has not made any use of the advantage of seeing the witness and observing their demeanour or the finding is perverse and cannot reasonably be supported having regard to the evidence or the finding is an inference from established facts so that an appeal court is entitled to draw its own conclusion or the trial court has applied wrong principle of law; see Woluchem v. Gudi (1981) 5 S.C. 291 at 326, Okujo v. Ishola (1982) 7 S.C. 314 at 349 and Nwobodo v. Chief Federal Electoral Officer (1984) 1 S.C. 1 at 53 for the recent pronouncements of this Court."
It is my view that while there might be substance in the contentions of Chief Oriade, however, the submission of Chief Fadayiro is right. The case of the plaintiffs was not founded on the fact that 2nd P.W. or his father was member of Odota family. It was not contended that both the plaintiffs and the defendants and their tenants were farming on the land in dispute. In the lead judgment of the court below Uche-Omo, J.C.A. rightly stated-
When the trial Judge was considering the claim for a declaration of title he believed and so found that the Odota family (5th and 6th defendants) were customary tenants of the plaintiffs as set out at p. 103 lines 1-15 which for emphasis I will reproduce verbatim as follows-
"Both parties said that they were in possession of the land and that they gave part of it out to tenants who paid yearly tributes. The plaintiffs called four different tenants all of whom had been on the land for several decades. I accept their evidence. I am particularly impressed by the evidence of 2nd