ARIBISALA v. BELLO
CITATION: (2016) LPELR-40145(CA)
In the Court of AppealIn the Akure Judicial Division
Holden at Akure
ON FRIDAY, 19TH FEBRUARY, 2016Suit No: CA/AK/103/2013
Before Their Lordships:
MOJEED ADEKUNLE OWOADE Justice, Court of AppealMOHAMMED AMBI-USI DANJUMA Justice, Court of AppealJAMES SHEHU ABIRIYI Justice, Court of Appeal
BetweenCHIEF SAMUEL KASALI ARIBISALA(For Himself and other members of his family of OdoQuarters, Arigidi-Akoko)
- Appellant(s)
AndMR. AMINU BELLO(For Himself and other members of Jagele FamilyAgbaluku, Arigidi-Akoko)
- Respondent(s)
RATIO DECIDENDI
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1 LAND LAW - OWNERSHIP OF LAND:What a claimant must establish in a claimof ownership of land based on partition"...the Respondent satisfied theexpressed in the case of Olorunfemi V.Asho (2000) 1 SC 1 at 15 that it is settledlaw that to succeed in a c la im ofownership of land based on partition,evidence of how and when the saidexercise in partition was executed mustnaturally be established."Per OWOADE,J.C.A. (P. 20, Paras. A-B) - read in context
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2 LAND LAW - TRADITIONAL HISTORY :When will it be necessary to tracetraditional history in a land matter"Indeed, where in a land matter as in theinstant case, the dispute between theparties is as to what features marks theboundary between them, there is noreason for tracing traditional histories. Aparty needs to trace such history onlywhere his link to the disputed land is incontest or where he has to prove his rootof title.See Prince Will V. Amachree(2005) 3 NWLR (Pt. 912) 358."PerOWOADE, J.C.A. (P. 20, Paras. C-D) - readin context
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3 EVIDENCE - EVALUATION OFEVIDENCE: Whether evaluation ofevidence and ascription of probativevalue is a primary function of the trialCourt"The evaluation of evidence and theascription of probative value to suchevidence are the primary functions of atrial Court which saw, heard and dulyassessed the witnesses."Per OWOADE,J.C.A. (P. 24, Paras. D-E) - read in context
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4 APPEAL - INTERFRENCE WITHEVALUATION OF EVIDENCE: Instancewhere an appellate Court cannot interferewith a trial Court's evaluation of evidence"Where a Court of trial as in the instantcase, unquestionably evaluates theevidence and justifiably appraises thefacts, what the Court of Appeal ought todo is to find out whether there isevidence on Record on which the trialCourt have acted. Once there is sufficientevidence on record from which the trialCourt arrived at its finding of fact, theAppellate Court cannot interfere.See: Chief J. Okeowo V. Attorney Generalof Ogun State (2010) 5 - 7 SC (Pt. 11)129; Military Governor of Lagos State & 4ors V. Adebayo Adeyiga & 6 ors (2012) 2SC (Pt. 1) 68; Osuji V. Ekeocha (2009) 6 -7 SC (Pt. 11) 91; Cyriacus Nnadosie & 3ors V. Nze Ogbunelu Umagwu (2008) 1SCNL 219; O yibo Irir i & Others V.Eseroraye Erurhodare & Anor (1991) 3SCNJ 1."Per OWOADE, J.C.A. (Pp. 24-25,Paras. F-C) - read in context
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5 JUDGMENT AND ORDER - ORDER OFCOURT: Whether orders of Court arebinding on non-parties to the action"Indeed, orders of Court in an action arenot binding on non-parties to the action.Pelfaco Ltd V. WA. O.S. Ltd (1997) 10NWLR (Pt. 524) 222. The general rule oflaw is that no person is to be adverselyaffected by a judgment in an action towhich he was not a party, because of theinjustice in deciding an issue against him.See Tunde Osunrinde & 7 Ors V. MutairuTogun Ajamogun & 5 Ors (1992) SCNJ 79;National Union of Road Transport Workers& Anor V. Road Transport EmployersAssociation of Nigeria and 5 Ors (2012) 1SC (Pt. 11) 119."Per OWOADE, J.C.A. (P.27, Paras. C-F) - read in context(2
016)
LPELR
-4014
5(CA)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering theLeading Judgment):This is an appeal against the decision of the High Court ofOndo State sitting at Ikare-Akoko delivered by N. S.Adeyanju, J. on 8th day of April, 2013.
The Respondent as Plaintiff in the Court below took out aWrit of Summons against the Appellant as Defendant on4/2/2009. By paragraph 19 of the Respondent's statementof claim dated 24/3/2009 and filed on 26/3/2009, theRespondent claimed as follows:"��(1) An order of Court partitioning Odo Farmland,Agbaluku, Arigidi-Akoko, Ondo State of Nigeria into"IPAWO" Farmland and "IKODE" Farmland betweenthe Plaintiff and the defendants respectively.(2) An order of Court restraining the Defendants fromfurther selling any parts of Odo Farmland withoutconsent or permission of the Plaintiffs."
The Appellant as Defendant in his statement of defence andcounter-claim of 6-6-2009 counter-claimed against theRespondent in paragraph 23 of the statement of Defencethus:"��23 - Wherefore, the counter-claimant counter asfollows.(1) A Declaration that neither the Plaintiff alone norhis Lemamu
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Bello branch of Ayijen or Olodo family can deal with
the Ayijen family or Olodo familu land or any part
therof without the consent and authority of the
counter claimant who is the head of the Ayijen or
Olodo family. Odo, Agbaluku Quarters, Arigidi-Akoko.
(2) An order of Court declaring as void all the sales or
alienation of land by the Plaintiff of the Ayijen family
or Olodo family land so far made.
(3) An order of injunction restraining the Plaintiff
either by himself or any member of his Lemamu Bello
branch of Ayijen family from further sales or
alienation of the Ayijen or Olodo family land.
(4) A sum of N3,000,000 (Three Million Naira as
General Damage for the illegal alienation or sales of
the family land."
The Respondent filed a Reply to statement of Defence and
counter claim dated 17/5/2010 but filed on 10/6/2010.
From the pleadings and evidence, the case of the
Respondent is that the land in dispute is called Ipawo land.
It was owned by the father of the Plaintiff. The land of the
Defendant is called Ikode land. The Defendant has no land
in Ipawo. Ihawaja land separates Ipawo and Ikode lands.
Both parties jointly cultivate
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Ihawaja land.
Jagele was Plaintiff's grandfather who came from Ile-Ife
with Aribisala and settled at Ahamo bush (Igbo Ahamo) and
they are still at Ahamo till today. Plaintiff's town is
Agbaluku. The Defendants are also at Agbaluku. Jagele, a
Muslim who brought Aribisala from Ile-Ife was senior
brother of Aribisala and was an Olodo. The Defendant is the
present Olodo. Aribisala was Defendant's grandfather.
Odo family is made up of two units and not thirteen. When
money, meat and other items are being shared, they are
shared into two parts. Example, was when the king died
and another was to be installed, both parties paid
N2,500.00 each. The sum of N20,000.00 whish was the
allowance of those in charge of farmland was shared
between the Plaintiff and Defendant and each paid
N10,000.00 one Odudu collected the first money. The
Plaintiff is hearing of thirteen families for the first time in
Court.
The boundaries of the land in dispute are Baba Obadayi,
Oshodi from Ijasa family and Ikode. The Plaintiff sued
because the Defendant is selling Ipawo land to persons
whose names the Plaintiff cannot remember because they
are many.
The case of the
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Respondent is that the Plaintiff's father was known as Ibete
Bello or Lemamu Bello. Abiki Ijala was the father of Ibete.
Jagele who was a warrior brought Aboki Ijala from Iyere to
Agbaluku Arigidi and settled him at Ijala family land called
Oson Lemamu. Ibete was the person that planted the
cherry (Oson) tree on Ijasa land after which the settlement
of Aboki Ijala's descendants was named. Abiki Ijala's
descendants are no longer on Ijasa family land having been
ejected by the Ijasa family.
The Defendants are descendants of Jagele. The Plaintiffs
are not. The family of the Defendants is known as Ayijen or
Odo family and Olodo of Odo is the head of that family. The
Defendant is the current Olodo of Odo.
Lemamu (Ibete) Bello was never an Olodo of Odo and has
never been head of family.
There are thirteen branches of Ayijen Odo family, they are:
Aribisala, Alade, Ayeba, Fatoki, Amuleya, Orowa, Ajulo,
Jinadu, Ogunleye, Oyeleye, Oula, Daramola, and Bello. It is
not true that there are only two branches.
The boundaries of Ayijen/Odo family land at Agbaluku
Arigidi are Ede/Gbadayi family land, Ugbe Community and
Ijasa family.
To prove his case
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and in defence of the counter claim the Respondent
(Plaintiff) testified on his own behalf and called three (3)
witnesses. In defence and proof of his counter claim, the
Appellant (Defendant) also testified on his own behalf and
called five (5) witnesses. The judgment of the learned trial
judge is contained at pages 101 - 125 of the record of
appeal.
The learned trial Judge held inter alia at page 116 of the
record that:
"On the balance of probability, I prefer and believe
the more probable evidence of the Plaintiff that his
grandfather was called Jagele and not Aboki Ijala,
that Jagele came from Ile-Ife with Aribisala the
grandfather of the Defendant and that they both
settled on Odo family land,"
At page 123 of the record, the learned trial judge held that
the Plaintiff succeeds in part and ordered (i) that Odo
farmland otherwise known as Ayijen family farmland be
partitioned into Opawo and Ikode. Ipawo being for the
Plaintiff while Ikode is for the Defendant. (ii) the Defendant
is restrained from selling any part of Ipawo farmland
without the consent or permission of the Plaintiff.
Also at pages 124 - 125 of the record, the learned trial
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Judge restrained the Plaintiff and his Lemamu Bello branch
of Ajiyen/Odo family from any sale of Ikode farmland which
is in possession of the Defendant but refused all other
prayers in the Defendant's Appellant's counter claim.
The Appellant filed a Notice of Appeal into this Court with
eight grounds of appeal on 17th June 2013 which was later
amended by adding additional two grounds of appeal
bringing the grounds of appeal to ten.
The relevant briefs of argument for this appeal are:
(i) Appellant's brief of argument dated 4/9/2013 and
filed on 11/9/2013 but deemed filed on 22/10/2015 -
Settled by Mallam Gani Asiru.
(ii) Respondent's brief of argument dated 13/10/2015
and filed on 14/10/2015 but deemed filed on
22/10/2015 - Settled by D. D. Adejumola, Esq.
(iii) Appellant's Reply brief dated and filed on
13/1/2016 and deemed filed on 21/1/2016 - Settled by
Adonis Oladuro.
Learned Counsel for the Appellant submitted three (3)
issues for determination. They are:
(i) Whether the learned trial Judge was right in the
light of the pleadings and evidence on records to have
partitioned the land into Ipawo and Ikode between
the
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Respondent and Appellant respectively, Grounds 2, 6,
7, 8, 9 and 10.
(ii) Whether the learned trial Judge was right in
holding that there are two and not thirteen branches
for Ayijen/Odo family.
(iii) Whether the learned trial Judge was right in
dismissing the counter-claim of the Appellant.
Grounds 3, 5 and 8
Learned Counsel for the Respondent on the other hand
nominated a sole issue for determination, to wit:
"Whether the learned trial Judge is not in every respect
correct and right when having evaluated evidence found
judgment in favour of the Plaintiff considering the fact(s),
nature and circumstance(s) of this case."
Learned Counsel to the Appellant argued issues 1 and 2
together and submitted that it is settled law that a Plaintiff
is to succeed on the strength of his own case and not on the
weakness of the defence. He referred to the cases of
Ogunnuhu & Ors V. Chigbuka (2013) 3 SCM 145, 146
and Ohakanu V. Ntemagu (2002) 33 WRN 30 at 35.
He submitted that going by the state of pleadings and
admissible evidence on records, it is clear that the
Respondent has not been able to establish his claim. That
the claim put
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forward by the Respondent before the trial Court is that of
partitioning of the land into two. But that the case he put
forward by his pleading is not in accordance with evidence
he gave at the trial and also the facts pleaded is not in line
with the reliefs sought from the Court. For instance his
claim is for the partitioning of the land into two between
himself and the Defendant. However, that, the facts he
based this on is that of first settlement on the land.
In his statement of claim, he averred that Jagele his
ancestor came to settle at Igbo Ahamo and later came to
Ipawo when Aribisala the ancestor of the Appellant was
already at Ikode.
Counsel submitted that the case the Respondent put
forward by his pleading at best is that of declaration of
title. That he was averring the issue of first settlement and
that right from the beginning the two portions were
separately occupied by Jagele and Aribisala respectively.
He submitted that there was nowhere in the Respondent's
pleadings and or evidence in which he stated when the two
portions of land became one and how both of them became
joint family properties. This, according to Counsel is
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because in a case of partition, the Claimant has to prove
how the land became their family land. The Respondent,
said Counsel has to rely on the averments in his pleading
and should not make out a different case at the hearing.
He referred to the case of Ajide V. Kelani (1985) 3
NWLR (Pt. 12) 248 at 269 and submitted further that the
Plaintiff is bound by the case he put forward. That once an
issue is joined between the parties, the Court is bound to
adjudicate between the parties on the issues formulated by
them.
Appellant's Counsel referred to numerous case law
authorities to emphasize the role of pleadings in civil
litigation. They include the cases of Liman V. Muhammed
(1999) 9 NWLR (Pt. 617) 116 at 137; Morinatu Oduka
and others V. Kasumu and others (1968) NMLR 28,
31; Adesoji-Aderemi V. Johnson Adedire (1966) NMLR
398; Adimora V. Ajolo and others (1988) 8 NWLR 1;
Makwe V. Nwuko (2001) 10 SCM 63 at 77; Ogunnuhu
& Ors V. Chiegbuka (2013) 3 SCM 146; Olubodun &
Ors V. Lawal & Anor. (2008) 10 SCM 175 at 191.
Appellant's Counsel submitted further that by paragraph 3
of the statement of claim, the Respondent averred that
Ihawaja was
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cultivated by Jagele and his brother Osere. However, that
in his evidence in chief at page 58 of the record, he stated
that:
"The land in dispute is called Ipawo. It is the only
land. My father owned Ipawo land. The land of the
Defendant is called Ikode. He has no land in Ipawo. I
sued the Defendant because they entered onto my
land. A third piece of land called Ihawaja separates
our land and that of the Defendant. Both Plaintiff and
Defendant jointly cultivate Ihawaja land."
Appellant's Counsel referred to the cases of Olaiya v.
Olaiya (2002) 22 WRN 94 and Okhuaroho v. Aigbe
(2002) 31 WRN 30 at 34 and submitted that the above
piece of evidence is at variance with pleadings and that the
point was enough for the Respondent's case.
Appellant's Counsel faulted the evidence of PW2, Sunday
Momodu alias Odudu who testified that he collected
moneys separately and by the branches on the occasion of
the funeral ceremony of the current king. He argued that
PW2 was neither a chief in the community or a
secretary/officer in the community. He submitted that DW3
who the learned trial Judge found to be a brother of PW2
from the same Ijasa family was more
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credible than PW2.
He urged us to disregard the evidence of PW2 as a reliable
one upon which a conclusion can be drawn that the families
has two branches.
He submitted further that the learned trial Judge erred in
placing reliance on the answer given by the DW2 as to the
fact that one Osunla is a stranger within the family as one
of the contradictions he claimed in the evidence of the
Appellant overlooking the explanation of DW4 at page 81 of
the records that there are two Osunlas, one a stranger and
that the one who is a stranger had left.
He submitted that the learned trial Judge was in error by
describing the above as a contradiction to fault the case for
thirteen branches. And, that it is only when a contradiction
cannot be explained that the Court will use it as a yardstick
for the rejection of the party's case.
Counsel referred to the cases of Odi V. Iyalla 27 WRN 1
at 5 and Aguncha V. Aguncha (2004) 43 WRN 17 at 22
and submitted that the evidence of the Respondent and
those of his witnesses are full of contradictions and
inconsistencies which the Court cannot pick and choose
going by the law.
Counsel submitted that even if the
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learned trial Judge were right to have partitioned any land
at all it is only Ipawo which he ought to order partition of.
That from the evidence of the Respondent himself, he
admitted that the one occupied by Ijasa were jointly owned
by Ijasa and Ayijen or Odo and that all members of
Ajiyen/Odo family fought the battle with Ijasa before
partitioning the land for them. That the land in dispute then
includes Ipawo. This, according to Counsel goes to refute
the claim that the Respondent has been in possession of the
land (Ipawo or Idaho) since their arrival from Ife.
He urged us to re-evaluate the evidence in the case and
ascribe probative value.
In response to Appellant's issues one and two, Learned
Counsel for the Respondent reminded us that it is evident
on the Respondent's Writ of Summons that the partition
sought is not in the nature of sharing a joint holding into
two but rather that which is to retain parties on their
"initial strand at inception", as it was in the good old
days of the parties forefathers.
That from the evidence before the Court, parties know the
extent of their individual family holding on the said land
before the
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Appellant started trespassing.
Counsel submitted that the Respondent averred in his
statement of claim that:
“...Ipawo has always been cultivated by descendents
of Jagele while Ikode is usually cultivated by
descendants of Aribala."
That this averment was reiterated by the Respondent in his
evidence-in-chief at page 58 of the records and was not
faulted on cross-examination.
He submitted that the only attempt to controvert same was
in a general traverse in paragraph 6 of the statement of
defence coupled with the Appellant's position under cross
examination that:
"I know Ipawo farmland. It is true that the Defence
now own Ikode farmland exclusively." (Pages 74 - 75 of
records).
The claim before the Court, according to Respondent's
Counsel is more of an emphatic pronouncement on the -
already partitioned land (Ipawa) in possession and
exclusive ownership of the Respondent. He submitted that
the substance of the Respondent's claims could be found in
paragraphs 4b, 4b, 4c, 4d, 5 and 7 of the statement of
claim.
Counsel submitted that the evidence of the Respondent as
PW1 that Jagele was his grandfather who came from Ile-Ife
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with Aribisala. That Aribisala, the grandfather of the
Appellant was brought to the land by Jayele and are
members of the same Odo or Ayijen family was correlated
by PW3.
That in contrast the Appellant's material inconsistencies.
For example, that DW3 said it is not true that the
Defendant's family settled at Ikode farmland contrary to the
DW1's evidence in chief that the Defendant now own Ikode
exclusively. That the Appellant on his own told the Court
that he knows the point called Ikode on his family land and
that Aribisala (his family) controls Ikode portion of the
family land where he also has his farm.
Counsel submitted that DW4 is one breath said that it is not
true that the family of the Respondent is the one farming
and building houses on Ipawo farmland. But, that in
another breath, he (DW4) said the house of the Respondent
is at Ipawo. He submitted that DWs at page 84 of the
records said that the Appellant and his people farmed at
Ikogbe. That the Respondent and his people live and farm
at Ipao. They do not come to Ikogbe. "Plaintiff has his
house at Ipao", Respondent's Counsel repeated the
evidence of the Appellant at page 90 of the record
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under cross examination that:
"The Plaintiff and his brothers have their house in
Ipao farmland. Ikode farmland is part of my family
land. It is true that I am using Ikode farmland
exclusively for myself."
He submitted that the above lends credence to the
Respondent's case.
He submitted further that the Respondent maintained that
there are two families constituting the entire Jagele family
of Agbaluku Arigidi Akoko where the Appellant's family also
originated. That the Respondent called witnesses who gave
evidence in that regard particularly how the land in dispute
had in time immemorial been named Ipawo and Ikode with
a common boundary at Ihawaja. For example that the
evidence of DW2 is to the effect that he takes contributions
in equal half whenever occasion demands from both
families that were one from the onset.
The burden placed on the Respondent according to Counsel
was well too discharged consequent upon which the onus
shifted to the Appellant at the point where he said there are
thirteen families forming the branch from a common
ancestral origin. That the Appellant called witnesses who
testified inconsistently to the existence of
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this fact. In particular is DW1 who could not mention the
names of the thirteen families.
Counsel submitted that the Appellant and his witnesses
contradicted themselves on how and from where Jagele
brought Aboki Ijala to Ijasa land. While one said it was from
Ayere, the other said it was from Ogidi in kwara State.
Also that while some claimed that Oluya came from Ile-Ife
alone, others claimed that twelve branches of Olodo Ajiyan
family came from Ile-Ife together while the thirteen later
joined them.
He submitted that the Appellant's assertions remained but
was without cogent proof. First, he said, is the failure to
state the chain of succession from one ancestor to the other
and second is the failure to state how they farmed on either
the Ipawo land or the Ikode land. That at one point, DW1
stated that that the thirteen families farmed at Ihawaja
farmland which is a swamp.
Respondent's Counsel referred to the cases of J. O.
Osidele V. Moses O. Sokunbi (2012) All FWLR (Pt.
645) 198 at 213; Duru V. Nwosu (1989) 4 NWLR (Pt.
113) 24 and Aromire V. Awoyemi (972) 2 SC 1 and
submitted that the Appellant has a duty under the law to
discharge the
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onus placed on him having raised facts contrary to the
position of the evidence in rebuttal to the presumption of
the prima facie case, especially being a counter claimant.
RESOLUTION OF ISSUES ONE AND TWO.
There are two related points in the exercise of the duty of
evaluation of evidence carried out by the learned trial
Judge in the instant case. The first is the nature of the
Respondent's case for the partition of existing separation
holdings of land as it were jointly by a single family, that is
the Odo/Ayijen family of Arigidi Akoko. The second is the
question whether the Odo/Ayijen family consists of two
branches as alleged by the Respondent or thirteen
branches as contended by the Appellant.
There is no doubt, and quite contrary to the suggestion of
the Learned Counsel for the Appellant in this case that the
evidence of the Respondent are in accordance with his
pleadings on the position that the parties had held different
holdings of land that is Ipawo and Ikode from time
immemorial separated by a swampy piece of land called
Ihawaja.
Paragraphs 1 to 5 of the Respondent'��s statement of claim
bear testimony to the pleadings and
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the evidence tendered in this case.
"1. The Plaintiff, a farmer who resides at No. 23
Agbaluku Quarters brings this action on behalf of
himself and other members of Jagele Olodo of Odo
family of Agbaluku Quarters, Arigidi Akoko, Ondo
State of Nigeria.
2. The Defendant, the current Olodo of Odo issued on
behalf of himself and other members of Aribisala
family of Odo Quarters, Agbaluku Quarters
Arigidi Akoko, Ondo State of Nigeria.
3. The avers that the land in dispute in this matter
called Odo family farmland is located at Agbaluku,
Arigidi Akoko Ondo State of Nigeria and it is
separated into 2 portions by a swampy strip of land
called Ihawaja farmland cultivated in the past solely
by Plaintiff's father and one Osere his brother from
Jagele family.
4. Further to paragraph 3 above the names of the 2
portions are called Ipawo and Ikode farmlands,
4(a). The Plaintiff avers that the land in dispute is
surrounded or bounded as follows:
(i) On one side by Ugbe - Akoko people's land, and the
portion of the land in dispute on that side is called
Ikode farmland.
(ii) On another side the land in dispute has boundary
with Ijasa
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family land of Agbaluku quarters, Arigidi Akoko.
(iii) On the remaining side the land is bounded by
Gbadayi family land of Agbaluku, Arigidi Akoko.
4 (b) The Plaintiff avers that Jagele the first leader of
Plaintiff's people migrated from Ife with his family in
the olden days and settled at a place called "Igbo
Ahamo" not far from the present site of Agbaluku
Quarters Arigidi, Akoko.
4 (c) The Plaintiff avers that after several years at
Ahemo, Plaintiffs ancestors for reasons of inter tribal
wars, notably from NUPE invaders moved to the
present site of Agbaluku where they joined other
Arigidi people and has since been farming on the land
in dispute on its area called Ipamo farmland when it
was virgin land inhabited only by snakes and other
dangerous animals.
4 (d) The Plaintiff avers that Aribisala the leader of
Defendants people who was a near relation of
Plaintiff's people and who was part of entourage of
Jagele was then farming on the part of the land called
"Ikode".
5. The Plaintiff avers that Ipawo has always been
cultivated by descendants of Jagele while Ikode is
usually cultivated by descendants of Aribisala ...”
From
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the pleadings and evidence in the instant case, it is clear
that the partitioning of Ipawo and Ikode farmlands of the
parties to the case had been existing from settlement.
Therefore, the pleadings and evidence of the Respondent
satisfied the expressed in the case of Olorunfemi V. Asho
(2000) 1 SC 1 at 15 that it is settled law that to succeed
in a claim of ownership of land based on partition, evidence
of how and when the said exercise in partition was
executed must naturally be established.
Indeed, where in a land matter as in the instant case, the
dispute between the parties is as to what features marks
the boundary between them, there is no reason for tracing
traditional histories. A party needs to trace such history
only where his link to the disputed land is in contest or
where he has to prove his root of title.
See Prince Will V. Amachree (2005) 3 NWLR (Pt. 912)
358.
The parties in this case agreed that the Appellant is in
exclusive possession of Ikode farmland which is part of
Odo/Ayijen family land. The evidence of the Respondent is
that his father owned Ipawo land while the land of the
Appellant is Ikode.
The attempt by the
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Appellant to disprove the prima facie case put forward in
this respect failed because the story of the Respondent was
more consistent, more probable and therefore preferable to
that of the Appellant.
The rationale for preferring the evidence of the Respondent
to that of the Appellant would be found at pages 117 - 118
of the records where the learned trial Judge held first at
page 117 that:
"On his own part, the Defendant testified that when
their forefathers migrated from Ile-Ife, they settled at
Ipawo. Contrary to the position of the Defendant, the
DW5 stated under cross-examination that the Plaintiff
and his people live and farm at Ipawo (Ipao) and they
do not go to Ikode. The D.W 4 and D.W5 under cross-
examination confirmed that the Plaintiff has his
house in Ipawo. The D.W5 under cross-examination
confirmed that the Plaintiff has his house in Ipawo.
The D.W.3 however went in opposite direction to the
position of the DW5 when he stated under cross
examination that the Plaintiff and his people are not
the ones on Ipawo land".
Still at page 117, the learned trial Judge remarked further:
"In another breath, the D.W.4 stated under
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cross examination that it is not true that the family of
the Plaintiff is the one farming and building houses
on Ipawo farmland, The Defendant however agreed
under cross examination that the Plaintiff and his
brothers have their houses on Ipawo farmland. The
Defendant stated in his evidence that Aribisala family
controls Ikode (Ikogbe) portion of the family land
that that is where he has his farm. That he cannot sell
Ipawo land without reference to the Plaintiff."
At page 118 of the record, the learned trial Judge also
noted on the issue thus:
"The Defendant and his witnesses contradicted
themselves on how and from where Jagele brought
Aboki Ijala to Ijasa land, While one said it was from
Ayere the other said it was from Ogidi in Kwara State.
Also while some claimed that Oluya came from Ile-Ife
alone, others claimed that twelve branches of
Odo/Ayijen family came from Ile-Ife together while
the thirteenth later joined them."
In the circumstance, the learned trial Judge referred to the
cases of Akuchie V. Nwamadi (1992) 8 NWLR (Pt. 258)
224 and Ayanwale V. Nwamadi (1991) 8 NWLR (Pt.
258) 214 and Ayanwale V. Atanda (1988) 1 SC 1 at 3
and 5,
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considered that the evidence of the Appellant is at variance
with his witnesses without any explanation and therefore
rejected the evidence of the Appellant on the issue.
On the related second issue as to how many branches made
up to how many branches made up to how many branches
made up the Odo/Ayijen family, the Respondent gave
evidence that Odo family is made up of two families/units
and not thirteen units.
The Appellant on his part testified that Odo is made up of
thirteen branches and went ahead to list them. The DW1
however listed only twelve branches including Osula. When
the DW1 was cross examined, he agreed with the
suggestion of Learned Counsel for the Plaintiff
(Respondent) that it is written at the bottom of page 40 of
Exhibit D4B (Minutes book of the family) that Osula is not a
member of Ayijen family.
On the above, the learned trial Judge observed at pages
119 - 120 of the record of appeal that:
"The question which the Defendant failed to provide
an answer to is how the thirteen branches came about
in view of the position taken by the Defendant that
Oluya begat Osonlorin who in turn begat Aribisala
and that Aribisala brought
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the grandfather of the Plaintiff from Ayere. The DW5
tried to provide an answer when he stated that twelve
branches came from Ile-Ife and the thirteenth later
joined them but he failed because his evidence was
not supported by the pleadings of the Defendant and
that piece of evidence is at variance with the evidence
of the Defendant that Oluya came alone from Ile-Ife.
In the circumstances, the learned trial Judge
considered that the credibility of the Appellant is
destroyed and concluded rightly in my view that
Ayijen/Odo family is made up of two units, that is
Aribisala and bello."
More importantly, it is obvious from the above discussion
that the learned trial judge properly evaluated the evidence
before the Court in coming to prefer on a balance of
probabilities the evidence of the Respondent to that of the
Appellant. The evaluation of evidence and the ascription of
probative value to such evidence are the primary functions
of a trial Court which saw, heard and duly assessed the
witnesses.
Where a Court of tr ia l as in the instant case,
unquestionably evaluates the evidence and justifiably
appraises the facts, what the Court of Appeal ought to do is
to
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find out whether there is evidence on Record on whichthe trial Court have acted. Once there is sufficientevidence on record from which the trial Court arrived atits finding of fact, the Appellate Court cannot interfere.See: Chief J. Okeowo V. Attorney General of OgunState (2010) 5 - 7 SC (Pt. 11) 129; Military Governorof Lagos State & 4 ors V. Adebayo Adeyiga & 6 ors(2012) 2 SC (Pt. 1) 68; Osuji V. Ekeocha (2009) 6 -7 SC (Pt. 11) 91; Cyriacus Nnadosie & 3 ors V. NzeOgbunelu Umagwu (2008) 1 SCNL 219; Oyibo Iriri& Others V. Eseroraye Erurhodare & Anor (1991) 3SCNJ 1.
In the instant case, the trial Court properly evaluatedthe evidence on record and this Court has no business ininterfering and/or substituting its own views on fact withthose of the trial Court.
Issue one and two are resolved against the Appellant.
Learned Counsel for the Appellant practically repeatedhis arguments on issues one and two in attacking thetrial Court's evaluation of the counter claim in his issuethree.
He added on the issue of unilateral sale of land by theRespondent without recourse to the Appellant as head ofthe family
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that learned trial Judge fell into error by holding that he
would not make such an order voiding such a sale because
those affected were not before him.
He urged that a sale of family land without the consent of
the head of the family is void. He urged us to resolve the
issue of the evaluation of the counter claim in favour of the
Appellant.
Learned Counsel for the Respondent adopted his previous
arguments on Appellant's issue three. He submitted that
the foundation of the Appellant's counter claim has been
rendered nugatory for lack of credible, cogent and reliable
evidence and was rightly dismissed by the learned trial
Judge.
RESOLUTION OF ISSUE THREE
I have already provided answers to Appellant's issue three
in my treatment of issues one and two. The Appellant did
not provide credible, cogent and reliable evidence in
support of the counter claim. The learned trial Judge was
also right when he held in respect of those that were not
parties before the Court at page 124 of the record as
follows:-
"The Defendant seeks an order declaring as void all
sale or alienation of Odo/Ayijen family land so fat
made. The evidence on sale of land
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made against the Plaintiff is in respect of Ipawo
farmland, The Plaintiff only admitted selling part of
the land to Cornerstone and one Adeyemo. Declaring
the sample of any parcel of Ipawo land by the Plaintiff
as void will affect the proprietary right of others who
are not parties to this case. It will be a denial of fair
hearing contrary to the provisions of Section 36 of the
Constitution of the Federal Republic of Nigeria for
this Court to make an order that will affect the rights
of persons who have not been heard.
Relief 2 is therefore refused."
Indeed, orders of Court in an action are not binding on non-
parties to the action.
Pelfaco Ltd V. WA. O.S. Ltd (1997) 10 NWLR (Pt. 524)
222. The general rule of law is that no person is to be
adversely affected by a judgment in an action to which he
was not a party, because of the injustice in deciding an
issue against him.
See Tunde Osunrinde & 7 Ors V. Mutairu Togun
Ajamogun & 5 Ors (1992) SCNJ 79; National Union of
Road Transport Workers & Anor V. Road Transport
Employers Association of Nigeria and 5 Ors (2012) 1
SC (Pt. 11) 119.
Issue Three is also resolved against the
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Appellant.
Having resolved, the three (3) issues in this appeal against
the Appellant, the appeal lacks merit and it is accordingly
dismissed.
There shall be no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.:I agree.
JAMES SHEHU ABIRIYI, J.C.A.:I read in advance, in draft judgment just delivered by mylearned brother Mojeed Adekunle Owoade, JCA.
He has dealt fully with the issues for determination. I adopthis reasoning and conclusions. I too dismiss the appeal.
I abide by the order as to costs.
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