IN THE SUPREME COURT OF NIGERIA
ON TUESDAY, THE 17th of January, 2014
SC.44/2002
BETWEEN
1. ALHAJI SAFIANU AMINU
2. ALHAJI ABASI WALI .......... APPELLANTS
3. ALHAJI ISA (For themselves and as representatives of Balogun Osolo Family)
V.
1. ISIAKA HASSAN
2. CHIEF SUNMONU BAKARE ......... RESPONDENTS
3. ALHAJI IBRAHIM DUROJAIYE (For themselves and as Head and representatives of Hassan Komolafe family)
REPRESENTATION
A. B. Kasunmu - for Appellants
J. A. Molajo, SAN (with him E. Molajo (Mrs.) for Respondents
MAIN JUDGMENT
JOHN AFOLABI FABIYI, J.S.C. (Delivering the Leading Judgment):
At the trial High Court of Lagos State, the plaintiffs who are respondents in this appeal claimed as follows:-
"(i) A declaration that the plaintiffs are the persons entitled to the grant of a Certificate of Occupancy in respect of the area of land measuring approximately 26.3276 hectares situate at Aiyetoro Village, Badagry, Lagos State and verged RED on Survey Plan No. CD 223/74 dated 20th December, 1973 prepared by C. Olu Dawodu, Licenced Surveyor.
(ii) N200,000:00 damages for trespass committed by the Defendants, their servants and agents.
(iii) An injunction restraining the Defendants, their servants and agents from continuing or committing further acts of trespass on the said land."
The defendants, on being served with the statement of claim, filed their statement of defence which was accompanied by a counter-claim that reads as follows:-
"(a) Forfeiture of the plaintiffs' customary tenancy of the land in dispute to the defendants who are the original land owners and overlords, for challenging the defendants' title.
(b) Reclamation of the whole portions of land belonging to the defendants and which the plaintiffs held of them as customary tenants.
(c) A declaration that the defendants are the persons entitled to the grant of statutory/customary right in respect of the area of land forming the subject matter of this suit.
(d) Perpetual Injunction restraining the plaintiffs, their servants, agents and privies from exercising any rights of ownership of the said land.
(e) =N=500,000:00 damages
(f) Further and or other reliefs."
It is apt to state the facts briefly. The plaintiffs maintained that the land known as Aiyetoro belonged originally to the defendants, family - Balogun Osolo Family. That many years ago, the Balogun Osolo family made an outright grant of the land in dispute to the plaintiffs' ancestor, Hassan Komolafe in consideration of the payment of the customary purchase price and thereby became the absolute owners of same. They used the land as such since the grant was made. As such owners, the plaintiffs maintained that they continuously and on diverse occasions have let and sold the land to strangers who have built substantial houses thereon without protest from the defendants none of whom live in Aiyetoro. The present action was caused by the defendants' forcible entry onto the land in 1996.
The defendants, on their part, agree that they made a grant of the land in dispute to the plaintiffs but contend that the grant was in the nature of a customary tenancy subject to payment of rent or tribute to the defendants' family.
The learned trial Judge garnered evidence and was duly addressed by learned counsel to the parties. In the judgment delivered on 18th November, 1996, the learned trial judge accepted that the land in dispute was granted to the plaintiffs by the defendants. He rejected the plaintiffs, claim for title as he held that the grant to them was in the nature of a customary tenancy. Heavy reliance was placed on Exhibit E which the plaintiffs maintained was an unpleaded record of evidence of witnesses and judgment in an earlier case as well as unpleaded Exhibits G - G1 by the trial Judge who entered judgment for the defendants on their counter-claim.
The plaintiffs who were not satisfied with the judgment of the trial court appealed to the Court of Appeal, Lagos Division ("the court below" for short). In its judgment delivered on 22nd November, 2001 the court below set aside the judgment of the trial High court. It maintained that Exhibits E, G and G1 upon which the judgment of the High Court was based were neither pleaded nor tendered in proof of any pleaded fact. Exhibit E was not admissible being substantially the record of evidence of witnesses in a previous case and there was no compliance with section 34 of the Evidence Act. Further, that Exhibit E cannot bind the plaintiffs because they were not parties to it. The award of damages in favour of the defendants/counter-claimants was wholly inconsistent with their case of forfeiture and same cannot stand in the absence of any claim for special damages. The court below found that the trial judge made findings which cannot be supported by the facts. It felt that the counter-claim for 'reclamation' is unknown to our law and ipso facto the order in the same terms cannot stand.
The defendants felt unhappy with the stance posed by the court below and has appealed to this court. In the brief of argument filed on behalf of the appellants, the five issues distilled for a due determination of the appeal read as follows:-
"(a) Whether the learned justices of the Court of Appeal were right to have allowed the appeal when from the evidence before the court the plaintiffs had not proved their case.
(b) Whether the learned justices of the Court of Appeal were right to have set aside the grant of the claim for reclamation of land on the ground that the manner the claim is framed is not known to law
(c) Whether the learned justices of the Court of Appeal were right in reversing the decision of the Trial Court on the issue of laches and acquiescence.
(d) Whether the learned justices of the Court of Appeal were right to have held that Exhibit E was inadmissible on the ground that it was not pleaded, and did not comply with section 34 of the Evidence Act and could not operate as res judicata against the respondents.
(e) Whether the learned justices of the Court of Appeal were right to have held that Exhibits G - G1 were inadmissible on the ground that they were not pleaded."
On behalf of the respondents, three (3) issues decoded for a proper determination of the appeal read as follows:-
"(1) Whether Exhibits E, G and G1 were admissible in evidence and are binding on the respondents having regard to the following:-
(a) Exhibits E, G and G1 were neither pleaded by either side nor tendered in proof of any pleaded fact.
(b) Exhibit E, the record of evidence of witnesses in a previous case was tendered without compliance with section 34 of the Evidence Act.
(c) Neither the individual respondents nor their family i.e. the Hassan Komolafe family was party in Exhibit E.
(d) There is no evidence on record that the land litigated upon in Exhibit E is the same as the land now in dispute.
(2) Whether the appellants' counter-claim for 'reclamation' is known to law.
(3) Whether the learned trial judge made a fair assessment of the evidence."
I wish to start the consideration of this appeal with regard to issues (d) and (e) formulated on behalf of the appellants which have the same tone with issue 1 as couched on behalf of the respondents. They touch on the propriety or otherwise of the admission in evidence of Exhibits 'E' 'G' and G1 by the trial court and whether they are binding on the respondents.
On behalf of the appellants, it was submitted that Exhibits E, G and G1 were duly pleaded. It was contended that Exhibit E was admissible as res judicata against the respondents and ought not to have been rejected by the court below as not complying with the provisions of section 34 of the Evidence Act. It was submitted that documentary evidence need not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. Learned counsel maintained that Exhibit E is relevant and was sufficiently pleaded in paragraph 6 of the Statement of Defence and Counter-Claim. He felt that admission of Exhibit E was not predicated on compliance with section 34 of the Evidence Act but on relevancy of the document and the fact that it was admissible as an admission against interest by the respondents. He referred to the case of Ipinlaye II v. Olukotun (1996) 6 NWLR (Pt.453) 148.
Learned counsel further submitted that Exhibit E should operate as res judicata to prove that the respondents are tenants to the appellants and that they were not given absolute grant of the land in dispute.
With respect to Exhibits G and G1, learned counsel for the appellants submitted that the fact that Exhibit G-G1 were not specifically mentioned in paragraph 6 of the Statement of Defence and Counter-Claim does not mean that they were not pleaded. He felt that it was for the respondents to ask for further particulars of such documents as observed by the trial judge.
Learned senior counsel for the respondents maintained that Exhibits E, G and G1 were neither pleaded by either side nor tendered in proof of any pleaded fact. Exhibit E, the record of evidence of witnesses in a previous case was tendered without compliance with section 34 of the Evidence Act, He further observed that neither the individual respondents nor their family was a party in Exhibit E and that there is no evidence on record that the land litigated upon in Exhibit E is the same as the land in dispute herein.
Learned senior counsel to the respondents further observed that Exhibit E is the record of proceedings and judgment in Suit No. CT.JCC/425, Yusuf Salami and Family v. Abu Bakare Yesufu. He maintained that it was not part of the case pleaded by either party at the trial court that there was any litigation on the land in dispute prior to the commencement of the current proceedings. As such, Exhibit E was not tendered in proof of any pleaded fact and ought to have been rejected when objection was taken to it. He felt that Exhibit E goes to no issue.
In the same manner, senior counsel observed that Exhibits G and G1 are pages of a book purporting to contain a record of alleged payments of rents by respondents to the appellants. No such record is alleged to exist in the pleading. Senior counsel submitted that, in the circumstances, Exhibits G and G1 go to no issue and ought to have been rejected. He cited Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1, Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511.
Let me say it right away that the object of pleadings is to require each party to give notice to his opponent with clarity and precision of the case which he is to meet. Each party is expected to place his cards on the table face-up. This is essential to prevent any of the parties from being taken by surprise and enable them frame and prepare their cases for trial. Paragraph 6 of the Statement of Defence and Counter-Claim which says the defendants shall rely on all related documents in their possession on the said land at the trial and all relevant Survey plans including Survey Plan No. SEW/73016 does not disclose any fact in proof of which Exhibits E, G and G1 could have been properly tendered and admitted.
It is basic that in civil cases, issues are settled on pleadings and courts should not allow evidence to be given in respect of facts not pleaded. If such evidence is inadvertently received, it is the duty of the trial judge to discountenance it as it goes to no issue. See: Adimora v. Ajufo (supra); Ajani v. Atanda (supra) at page 531; Idahosa v. Orasanye (1959) 4 FSC 166; NIPC Ltd. v. Thomson Organisation (1969) NMLR 99 at 104; Ogbodo v. Adelugba (1971) 1 All NLR 68.
In short, the court below was on a firm stand when it found that Exhibits E, G and G1 upon which the judgment of the trial court was based were not pleaded or tendered in proof of any pleaded fact and as such, they go to no issue.
It was seriously contested that Exhibit E is not admissible being substantially the record of evidence in a previous case in respect of which there was no compliance with section 34 of the Evidence Act.
Section 34(1) of the applicable Evidence Act reads as follows:-
"34(1) Evidence given by a witness in a judicial proceedings, or before any person authorized by law to make it is relevant for the purpose of proving, in a subsequent judicial proceedings, or in a later stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party or when his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case, the court considers unreasonable.
Provided:-
(a) That the proceeding was between the same parties or their representatives in interest.
(b) That the adverse party in the first proceedings had the right and opportunity to cross-examine, and
(c) That the questions in issue were substantially the same in the first as in the second proceedings."
It should be noted here that the appellants did not establish that the witnesses who testified in Exhibit E were dead or cannot be found, or were incapable of giving evidence, or were kept out of the way by the respondents or that their presence could not be obtained without such delay or expense as the court would have considered unreasonable. There was no attempt to comply with the conditions in the above proviso to section 34 of the Evidence Act.
It has been pronounced with force long ago by this court in Alade v. Aborishade (1960) 1 NSCC 111 at 115 per Abbot, FJ 'that evidence given in a previous case can never be accepted as evidence by a court trying a later case where section 34(1) of the Evidence Ordinance applies. The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but is of no higher value than that. The judgment in an earlier case frequently is used perfectly properly in a later case, the classic instance being, of course, on a plea of res judicata but it can properly be used there provided the incidents necessary to support such a plea are fully observed'.
The above has been further established and/or reinforced. See: Shonekan v. Smith (1964) 1 All NLR 313 Ayinde v. Salawu (1989) NWLR (Pt. 109) 297 at 315; Dada v. Bankole (2008) 1 SC (Pt.111) 219 at 230.
The appellants contended that Exhibit E is relevant and admissible as an admission against the interest of the respondent's Family. The contention is far-fetched as the respondent's Family - Hassan Komolafe Family is not a party to Exhibit E. In the prevailing circumstances Exhibit E was not properly admitted by the trial court. The court below was right when it found that same was inadmissible. See: the case of Eghobamien v. FMBN (2002) 17 NWLR (Pt. 799) 488 at 500.
As extant in Exhibit E, it can be seen that same was filed against Abu Bakare Yesufu in his personal capacity. It goes without any doubt that Exhibit E cannot bind the respondents - Hassan Komolafe Family. This is as pronounced by this court variously that 'the fact that a member of a community took part in a court action either as a party or a witness is not by itself enough ground for the conclusion that the community to which that member belongs should be identified with that court action'. See: Ajeigbe v. Odedina (1988) 1 NWLR 587 at 598; Ndukwe Okafor & Ors. v. Agwu Obiwo & Anr (1978) 9 and 10 SC 112 at 115; Coker v. Sanyaolu (1976) 9 - 10 SC 203 at 224.
The appellants attempted to rely on Exhibit E as constituting res judicata which has been defined as
'a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and so to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. See Matchett v. Rose 36 III App 3d 638, 344, NE 2d 770, 779 - A matter once judicially decided is finally decided - To be applicable, requires identity in thing sued for; identity of cause of action, persons and parties to the action' (Blacks Law Dictionary Sixth Edition 1305-6).
The point that I wish to make here is that even if Exhibit E is admissible, it cannot bind the respondents - Hassan Komolafe Family as estoppel because they were not party to it. There is no evidence on record upon which it can be rightly inferred with adequate precision and certainty that the land litigated upon in Exhibit E is the same as the land now in dispute herein. This is because no plan was tendered in Exhibit E. The attempt by the trial judge to tie Exhibit E tendered by the appellants to the respondents' Exhibits F and F1 was without justification and to no avail in the absence of any plan tendered in Exhibit E. As well, contrary to the flawed finding of the trial judge, none of the plaintiffs was referred to in Exhibits G and G1.
Put briefly, I cannot fault the stance taken by the court below in any respect.
Perhaps I still need to state it here that the appellants by their counter-claim, asserted that the respondents are their customary tenants. Such raises in favour of the respondents the presumption of ownership provided by section 146 of the applicable Evidence Act which provides as follows:-
"When the question is whether a person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
It has been shown that the appellants failed to prove their assertion of customary tenancy by admissible, credible and cogent evidence. The appellants placed themselves within the consequence of their admission of the respondents' exclusive possession. See: Dada v. Bankole (2008) 1 SC (Pt. 111) 219 at 258 - 259; Raphael Udeze & Ors. v. Paul Chidebe & Ors. (1990) 1 SC. 148; (1990) 1 NWLR (Pt. 125) 141 at 160-161.
The last point which I wish to touch briefly is the appellants' counter-claim for 'reclamation'. This claim was loosely framed by counsel to the detriment of his client. No court of record should encourage such a carefree attitude by counsel. The court below was correct in its stance that same is not known to law and that the order made by the trial court in respect of the far-fetched claim should be set aside.
For the above reasons, I come to the conclusion that the appeal lacks merit and deserves to be dismissed. The judgment of the court below is hereby affirmed as the appeal is dismissed. I award the sum of N100,000 as costs in favour of the respondents and against the appellants.
I. T. MUHAMMAD, J.S.C.:
I read before now, the judgment of my learned brother, Fabiyi, JSC, just delivered. I am in agreement with him that the appeal should be dismissed. I hereby dismiss the appeal. I abide by all orders made in the lead judgment including one on costs.
MARY PETER-ODILI, J.S.C. CFR:
I have had the privilege of reading in draft the judgment of my learned brother, John Afolabi Fabiyi just delivered which decision and reasoning I agree with. In support I shall make some comments.
This is an appeal from the Court of Appeal, Ibadan Division which overturned the judgment of the High Court and gave judgment in favour of the respondents. The trial court had held that the respondents as plaintiffs did not discharge the onus of proof on their holding rather, that it was appellants who were able to establish the entitlement to a declaration of title to the land in dispute.
FACTS BRIEFLY STATED
The background leading to this appeal stated as follows.
The respondents as plaintiffs in Suit No. LD/566/95 for themselves and as representatives of the Hassani Komolafe family sued the appellants herein as defendants for themselves and as representatives of Balogun Osolo family claiming declaration of title to an area of land measuring approximately 26.3276 hectares situate at Aiyetoro Village, Badagry Expressway, damages for trespass and injunction.
The appellants counterclaimed against the respondents for forfeiture of the respondents' customary tenancy of the land in dispute to the appellants who are the original owners and overlords for challenging the appellants' title, declaration of title to land, reclamation, perpetual injunction and damages.
Pleadings were duly filed and exchanged by the parties. In the course of the proceedings, the respondents amended their Statement of Claim and the respondents filed a Reply and Defence to Counter-claim.
On the whole, four (4) witnesses testified for the respondents whilst one (1) witness gave evidence for the appellants.
The respondents' pleadings were to the effect that the appellants were the original owners of the land in dispute. The respondents said that their ancestor one Hassani Komolafe, a renowned hunter and a native of Owu in Abeokuta used to embark on periodic hunting expedition from Abeokuta to the area of land now known as Aiyetoro where he often camped and gave gifts of game to the land owners who were the appellants' ancestors and in appreciation of these gifts and further payment of a customary price of gin and kola nuts to the appellants' ancestors, Hassani Komolafe was put into possession of the said land in pursuance of an absolute grant thereof.
The said Hassani Komolafe was said to have gone into possession of the land and exercised full rights of ownership thereon including farming, building a house thereon and granting portions thereof to rent from paying tenants until his death. It was the respondents' case that they inherited the land in dispute from the said Hassani Komolafe their ancestor and they have been exercising maximum acts of ownership over the whole of the land in dispute.
The appellant's case was that their family - the Balogun Osolo family - is the owner of the land in dispute and the family never made any absolute grant to the respondents who were only granted customary tenancy of the said land in dispute by the appellants' family for which respondents' family paid rent (Isakole). They said that this status of the respondents being customary tenants of the appellants has not changed to the present day. They said further that the respondents-contrary to their status as tenants- have been alienating portions of the land in dispute by way of transfer and sale and they have also been building on the land and have also challenged the title of the appellants as their overlords. It is the case of the appellants that by reason of the respondent's aforementioned acts, and by their act of challenging the appellants' title, the respondents ought to forfeit their tenancy.
The respondents did not call any witnesses.
In the course of their evidence, the appellants tendered in evidence Exhibit E which is a Certified True Copy of the Customary Court Judgment in Suit No. CT/425/74 in which the appellants' ancestors sued and obtained judgment against the respondents' ancestors for rent in respect of the land in dispute. The said Exhibit E was tendered through PW3 under cross-examination to disprove his earlier testimony that their ancestors were given an absolute grant of the land in dispute.
The appellants tendered in evidence Exhibits G - G1 the family record/book of the appellants' family in which they recorded payments by their customary tenants and in which the respondents were referred to as customary tenants of the appellants. The said family record/book was put into evidence and the same was admitted as Exhibits G - G1
After counsel addressed the court and on the 18th November 1999 the High Court gave a judgment holding that respondents had not proved their case and dismissed the same. That court of trial found the defendants /appellants' counter-claim proved and granted their claim for forfeiture of the respondents' title, customary right of occupancy, reclamation, perpetual injunction and damages.
The appellants appealed to the Court of Appeal which set aside the judgment of the trial court and ruled in favour of the respondents hence this appeal before this apex court.
The hearing of the appeal was on the 28th October 2013 at which learned counsel for the appellants adopted their amended Brief of Argument settled by O. M Lewis (Miss) filed on 31/10/07 and in it were formulated six issues for determination, viz:
1. Whether the learned Justices of the Court of Appeal were right to have allowed the appeal when from the evidence before the court the plaintiffs had not proved their case.
2. Whether the learned Justices of Court of Appeal were right to have set aside the grant of the claim for reclamation of land on the ground that the manner the claim is framed is not known to law.
3. Whether the learned justices of the Court of Appeal were right in reversing the decision of the Trial court on the Trial court on the issue of laches and acquiescence.
4. Whether the learned Justices of the Court of Appeal were right to have held that Exhibit E was inadmissible on the ground that it was not pleaded, did not comply with Section 34 of the Evidence Act and could not operate as res judicata against the respondents,
5. Whether the learned Justices of the Court of Appeal were right to have held that Exhibits G - G1 were inadmissible on the ground that they were not pleaded.
For the appellants was also adopted a Reply Brief settled by Alade Babatunde Kasunmu, filed on 17/10/12 and deemed filed on 10/7/13.
For the respondents, learned counsel on their behalf adopted the Further Amended Respondents' Brief settled by Tani A. Molajo SAN and filed on 5/12/11. In the brief were raised three issues for determination which are as follows.
1. Whether Exhibits "E' "G' and "G1' were admissible in evidence and are binding on the respondents having regard to the following:-
(a) Exhibits "E' "G' and "G1' were neither pleaded by either side nor tendered in proof of any pleaded fact.
(b) Exhibit "E' the record of evidence of witnesses in a previous case, was tendered without compliance with Section 34 of the Evidence Act now S.46 of the Evidence Act 2012.
(c) There is no evidence on record that the land litigated upon Exhibit E is the same as the land now in dispute.
2. Whether the appellants' counter-claim for "reclamation" is known to law.
3. Whether the learned trial Judge made a fair assessment of the evidence,
I find the issues as crafted by the appellants easier to use and so I shall utilize them though some need to be combined as they relate.
ISSUE 1, 2 & 3
These call to question whether the Court of Appeal was right to allow the appeal and set aside the judgment of the trial court.
Learned counsel for the appellant stated that the root of title pleaded by the plaintiffs is that of absolute grant of the land in dispute to them by the defendants' ancestor. That the root of title must therefore be proved first before any acts of possession can properly be considered by the court. That the plaintiffs having pleaded absolute grant as their root of title now have the burden of proving that absolute grant in order to succeed on their claim. He cited Obioha v Duru (1994) 8 NWLR (Pt.365) 641; Fasoro v Beyioku (1988) 2 NWLR (Pt.76) 263 at 271; Folarin v Durojaiye (1988) 1 NWLR (Pt. 70) 351.
Miss Lewis of counsel referred to paragraphs 2, 3, 4 and 5 of the Amended Statement of claim pointing out that the names of the witnesses to the sale were not pleaded nor the name of the person who of made the grant to Hassani Komolafe pleaded.
For the appellants was further submitted that the respondents having pleaded that the land in dispute originally belonged to the appellants and that they were put into possession by the appellants but not being able to prove an absolute grant to them, their claim automatically failed and all acts of ownership pleaded thus became acts of trespass. Also that since there had been no relief from forfeiture claimed, the claim for forfeiture of the appellants and the order of trial court ought to have been upheld by the Court of Appeal.
Learned counsel for the appellants went on to contend th