IN THE SUPREME COURT OF NIGERIA

ON THURSDAY, THE 18TH DAY OF AUGUST 1983

SC 127/1982

BETWEEN

DAVID DAWODU LUKOYI AND OTHERS ...................................... APPELLANTS

AND

EMMANUEL BABALOLA OLOJO ........................................... RESPONDENT

BEFORE: Idigbe, Obaseki, Eso, Aniagolu, Uwais; JJ.S.C

The respondent claimed against the appellants a declaration of title to all that parcel of land situate, lying and being at Oke-Eyiyi via Inashin in Ijesha South Division described in a survey plan, injunction restraining the appellants, their servants or agents from entering the land in dispute.

On the orders of the court, pleadings were filed; exchanged and served and the issues came up for hearing and were set down for hearing. At the conclusion of the hearing the trial Judge allowed the respondent’s claim.

The appellants were not satisfied with the judgment of the trial Court, they therefore appealed to the Court of Appeal which dismissed the appeal. On a further appeal to the Supreme Court, the issue for determination is a wholesale review of the evidence adduced before the trial Court and facts found by the lower courts together with an examination of the cases set out in the pleadings.

HELD:         

From the evidence on record, the finding of the trial Judge that the plan exhibit 4 accurately delineated the land in dispute and that the boundaries were not in doubt were well founded. I have myself examined the plans and the evidence and can find no ground whatever for disturbing the finding of fact by the High Court and their confirmation by the Federal Court of Appeal.

Appeal dismissed.

Cases referred to:–

(1) Olujebu of Ijebu v. Oso The Eleda of Eda (1972) 5 SC 143 at 151.

(2) Mogo Chinwendu v. Nwanegbo Mbamali (1980) 5-7 SC 42 at 55.

(3) Ukpe Ibado and others v. Engarofie and others (1980) 507 SC 42 at 55.

(4) Omotan v. Chief Dore Nume 11 M2R 18.

(5) Ohene v. Ohene (1942) 11 WACA 3.

(6) Sockna Momodu Allie and others v. Ahadi (1952) 13 WACA 320.

(7) Chief Nweku Serbsh v. Onene Kobina Karikari (1938) 5 WACA 34.

(8) Ohene Tekyi Akyin III v. Kobina Abaka II (1937) 5 WACA 49 at 55.

Statute referred to:–

Decree No. 43 of 1976–Federal Court of Appeal

L. Ladopo for the Appellants.

A. Adedeji for the Respondents.

Obaseki, J.S.C. The appellants were defendants in Suit No. HIL/12/74 instituted by the respondents in the former High Court of Justice, Western Nigeria on the 9th day of May, 1974. In the said suit, the respondent claimed as endorsed on the writ of summons:

(1) A declaration of title to all that parcel of land situate, lying and being at Oke-Eyiyi via Inashin in Ijesha South Division which would be more particularly described in a survey plan to be filed;

(2) Injunction restraining the defendants, their servants and agents from entering the land in dispute.

On the orders of the court, pleadings were filed, exchanged and served and the issues joined came up for hearing and were set down for hearing and were set down for hearing before Adenekan Ademola, J. At the conclusion of the hearing, the learned trial Judge, (Ademola, J.) delivered a well considered judgment in which he allowed the plaintiff’s claim in the following terms:

“Now looking at exhibit 2 and exhibit 4 tendered by the parties in this case, one is in no doubt that the land in dispute is the same or almost shown to be the same in both plans. The evidence of DW1, Mr Gascoyne is to that effect. Both pans show that the land in dispute is bounded on two sides by the land of the same persons, i.e. Olojo’s land and Ishotun’s land. The northern side of both plans show a road from Inashin village to Ishotun and also both plans show the footpath from Inashin to Iworo or Oshu.

The problem is to decide to whom the land belongs. . . What then are the decisive factors in this case? We go back to the plans exhibits 2 and 4. They tell us a story. Both sides claim Sanni Opesan as a tenant. His holding and location is on both plans. He is shown as having farms at the upper and lower parts of the land in dispute. Another name common as the tenant to both sides of Odunro. His holding and location is also shown on both plans. The descendants of these tenants are Abiodun Opesan and Timothy Olatunji, the PW2 and PW4 respectively. They confirm that their ancestors were tenants to the plaintiffs’ family. . .

Turning now to the claim by the defendants of tenants of the land in dispute, it is clear if one goes by exhibit 2 that apart from the three tenants (Opesan, Odunro and Amodu) who have farms on the land in dispute, the others mentioned, i.e. Doherty, Saka Afenifere, Karimu Alaka, Eyiola Salako and Sansan Salako do not have farms on the land in dispute. Their holdings are shown on exhibit 2 to be outside the area in dispute between the parties. The defendant did not call any of the people he claims to be his tenants within the land in dispute. This is very much against him....

I have come to the conclusion that Sanni Opesan, Odunro Amodu and others are tenants of the plaintiffs family and that the plaintiffs father had farm on the land in dispute. This finding, to my mind, tilts the balance in favour of the Plaintiffs in this case.

Plaintiff has in my view satisfied the conditions of success required in this type of case by adducing cogent evidence of tradition, by giving evidence of positive and numerous acts of ownership pointing unequivocally to the facts that he was exercising dominion over the land in dispute or by giving evidence of both’ . . . per Coker, J.S.C. in Olujebu of Ijebu v. Oso The Eleda of Eda (1972) 5 SC 143 at 151.

The plaintiff in this case has not only given cogent evidence of tradition but has shown me that his family exercises dominion over the land in dispute. Plaintiff would therefore be entitled to judgment for a declaration of title to the land depicted in exhibit 4 Plan No. EBS 17 and an injunction against the defendants their servants and agents.”

The defendants were not satisfied with the judgment. They felt aggrieved and so appealed against it to the Federal Court of Appeal. Eleven grounds of appeal were filed. At the hearing before the Federal Court of Appeal four of the grounds were abandoned and only seven grounds were argued. At the conclusion of the hearing, the Federal Court of Appeal (Aseme, Akanbi, and Uche Omo, JJ.C.A.) gave a unanimous decision dismissing the appeal. Uche Omo, J.C.A. in delivering his judgment (concurred in by Aseme and Akanbi JJ.C.A.) dealt with all the issues raised and in particular the issue as to the identity of the land and as to whether there was one mound or 26 mounds along the western boundary and observed and commented:

“It is true as submitted in support of ground 11(a) that the court below did not consider where (sic) there was one mound or twenty six mounds on the western boundary of the land in dispute.

Whereas the respondent pleaded that there was one mound, the appellants alleged twenty six mounds, situated on both sides of a footpath. The evidence of the parties were supported by their respective surveyors. In the face of this divergence, the court preferred to rely on a boundary feature which was agreed to by both sides, i.e. the footpath which is said to go along the entire western boundary. This, the court was perfectly entitled to do; and its failure to decide whether there was one mound or twenty six also on that boundary becomes relatively immaterial and certainly not fatal to its penultimate decision on the case.” Ground 10 which was argued last reads as follows:

“10. The learned trial Judge erred in law in granting the plaintiff’s claims when the evidence tendered at the trial is at variance with the plaintiffs’ pleading, that is to say, paragraphs 7, 8, 9 and 10 of the Statement of Claim wherein the plaintiff claims the land as his mother’s own property by inheritance, contrary to paragraphs 4 to 6 of the said Statement of Claim, there being no proof of absolute grant to the plaintiff’s mother or partition of the land.”

Appellant’s Counsel referred to the respondents’ pleadings and submitted that the certain portions of it were in conflict with others, to wit, that whereas paragraphs 4 and 6 allege title by grant to land pursuant to an ancient grant by an Owa to his ancestors, paragraphs 7 to 10, allege that the land descended to respondent and his deceased elder brother on the demise of their mother. In view of the fact that the respondents’ claim is on behalf of his family and not a personal action, there is no substance in this submission. . . It is important to observe that no issue was joined on this aspect of the case by the appellant. Their contention in the trial Court was that the respondents had no right to any part of the land in dispute. This submission fails.

Accordingly, the whole appeal fails and is hereby dismissed.”

Against this decision, the defendants have further appealed to this Court on one ground involving questions of fact or mixed law and fact with the leave of this Court. The ground reads:

“The Court of Appeal erred in law in dismissing the appellants’ appeal when it is clear from the printed record the evidence and the plans tendered in evidence that the respondents’ plan does not depict the averments contained in paragraphs 13 to 15 of the Statement of Claim in that it did not show the defendants’ land described in the pleadings.

PARTICULARS

(a) The plan exhibit 4 is at variance with the pleadings and evidence;

(b) The plan does not show the defendants’ land which should according to the Statement of Claim be contiguous with the land shown as “Jacob Olojo–Cocoa” to the west of the land in dispute, that is to say that the eastern boundary of the plaintiffs’ land should be the western boundary of the land in dispute as shown in both plans.

(c) The findings of the Court of Appeal that

(i) ‘it is trite law that where there is no difficulty in identifying the land a declaration of title may even be granted without it being based on a plan. . .’

(ii) . . . whilst it is true plaintiffs’ plan–exhibit 4–does not show the adjoining land granted by the defendants’ ancestors by his ancestors. Exhibit 2 the defendants plan, which is in evidence. . . shows that the defendants land immediately adjoins the land in dispute claimed by the plaintiffs to belong to them. . . the plans tendered.

show that the Court of Appeal did not consider the effect of its finding in (ii) above, and that it was preoccupied with a situation where there was no plan tendered in evidence.

(d) The two plans set against the plaintiffs pleadings and evidence tendered on his behalf clearly show that the land in dispute is the land which the plaintiff stated was granted to the defendants ancestors by plaintiffs’ ancestors.

Briefs were filed and exchanged or served by the parties to this appeal. The issues raised in this appeal involve only questions of fact and were aptly and correctly set out in paragraph 2 of the appellants’ brief as follows:

“The appeal turns almost entirely on the approach of the two courts in their appraisal of the evidence as they relate to the pleadings in respect of:

(i) the proof of the relevant boundary between the parties;

(ii) proof of the traditional history on which the respondents’ case was based;

(iii) concurrence between the evidence tendered in proof of title and the plan filed;

(iv) The principle of law which postulates that the plaintiff must succeed on the strength of his own case. . .”

The issues or questions for determination in this appeal therefore call for a wholesale review of the evidence adduced before the High Court and facts found by the lower courts together with an examination of the cases set out in the pleadings.

In view of the concurrent findings of fact by both the High Court and the Federal Court of Appeal on the issues of identity and certainty of the land in dispute, possession and ownership, the question may be asked whether the appellants have made out a good case for interference by this Court with the concurrent findings of the two lower courts on those issues. The attitude of this Court has been stated repeatedly in several decisions of this Court and I think it will certainly be instructive and desirable to re-echo it. The rule of practice is that, in the absence of special circumstances, this Court will not allow a question of fact to be re-opened where there have been two concurrent findings of fact by two lower courts. This was clearly stated in our decisions in

Mogo Chinwendi v. Nwanegbo Mbamali (1980) 3 SC; and

Ukpe Ibodo and others v. Enarofie and others (1980) 5-7 SC 42 at 55.

This was also the attitude of the Judicial Committee of the Privy Council when it existed as the Final Court of Appeal for Nigeria and other West African British Dependencies during the colonial era. This attitude found expression in the cases of

Ometan v. Chief Dore Numa 11 NLR 18; Ohene v. Ohene (1942) 11 WACA 3; and Sockna Momodu Allie and others v. Alhadi (1952) 13 WACA 320.

In the case of Ohene v. Ohene (supra), Lord Thankerton delivering the opinion of the Board said at page 1 of the report 11 WACA:

“Their Lordships have heard this case on behalf of the appellant at considerable length, and the result has been to put it beyond doubt that the appellant has been seeking to have three concurrent judgments on that which is a pure question of fact reviewed by this Board which is contrary to the well-known practice of this Board, there being in this case no special reason for departing from the usual practice; accordingly their Lordships will humbly advise His Majesty that this appeal should be dismissed.”

Still on the effect of concurrent findings of fact, I will refer to the Privy Council decision in the case of Sockna Momodu Allie and Others v. Ahmed Alhadi and others (supra) where Lord Porter delivering the judgment of the Privy Council commented at pge 321:

“Their Lordships do not propose to go through the evidence at length or indeed to say more about it than that there was ample evidence upon which the judge could find that the will of 1946 was the will which had been made by the testator. It is quite true that there was ample evidence upon which he could have found the other way. It may be, and their Lordships are prepared to assume, without deciding, that the evidence in favour of the rejection of the will was supported by a larger body of evidence that the evidence asserting that the will produced was the document originally signed.

However that may be, it is not a matter upon which their Lordships could or ever do, interfere, when the matter has been not only to the court of first instance but to the Court of Appeal in the colony itself. It comes under the rule that concurrent findings of fact are not set aside and indeed the learned Judges’ decisions in the present case are much less open to attack than were those of the judges in the latest cases decided by their Lordships with regard to the Indian Rajah, in which a great deal more could have been said than can be said in this case in derogation of the findings of the Court of Appeal. . .

In those circumstances, having regard to the fact that there are concurrent findings of fact, that there was ample evidence to justify them and that in their Lordships’ view the learned Judge was in no way influenced by the decision of the Attorney–General, it only remains for them to say that they will humbly advise Her Majesty that the appeal should be dismissed.”

Turning to the attitude of this Court, its re-statement in the case of Ukpe Igbodo and Others v. Iguasi Enarofia and Others (1980) 5-7 SC 42 merits reproduction here. In his judgment (concurred in by Bello, Idigbe, Obaseki and Eso, JJ.S.C.) Aniagolu, J.S.C. observed at 55

“Secondly, both the High Court and the Court of Appeal have made concurrent findings of fact supported by the evidence, and justified by the circumstances, on the position of Okpako in relation to his lack of title to sell or pledge the land in dispute. Nothing, it is appreciated, stops this Court from interfering with a finding of fact which the court considers is not justified by the evidence, or by the surrounding circumstances of a particular case. It is, however, necessary that attention be drawn to the important changes which have since taken place in the structure of our Courts. . .

Continuing, the learned Justice of the Supreme Court observed at at 56-57:

“With the creation of the Federal Court of Appeal on 1st October, 1976, (Decree No. 43 of 1976), the position has now changed. The Court of Appeal is now an intermediate court between the High Courts and the Supreme Court with the Supreme Court now being in a position of the old Privy Council. It has been the Privy Council’s practice, not to hear arguments seeking to disturb concurrent judgments in the courts below on pure questions of fact, unless there were particular circumstances dictating otherwise (see Chief Kwakau Serbeh v. Ohene Kobina Karikari (1938) 5 WACA 34; Ohene Tekyi Akyin III v. Kobina Abaka II (1937) 5 WACA 49 at 55).

In Mogo Chinwendu v. Nwanegbo Mbamali (supra) this Court took the same view as per the judgment of Obaseki, J.S.C., who observed that:

“The 5th and 6th questions were effectively answered by findings of the trial Court which findings were confirmed by the Federal Court of Appeal. There are no facts on record to lead me to a contrary view. It is necessary to emphasise that in such a case where there are two concurrent findings of fact, these findings cannot be disturbed without any substantial error apparent on the record of proceedings. . . ’

In the instant appeal, the question we are called upon to determine are all questions of fact which have been argued extensively before the High Court and the Federal Court of Appeal. The findings of fact made by the High Court in respect of these questions were amply supported by the evidence adduced before the learned trial Judge and when an appeal against them came before the Federal Court of Appeal that Court found there were no grounds for disturbing the findings but that the evidence supported them and affirmed the decision of the High Court.

I have myself examined the facts and it appears that this appeal can secure nothing for the appellants but three concurrent judgments.

The learned Counsel for the appellants, Mr Ladosu Ladapo, at the hearing, laboured in vain to convince us that exhibit 4 (i.e. plaintiff’s plan of the land in dispute which failed to show the appellants’ land), on the evidence, shows only the land alleged granted to the appellants’ ancestors by the respondents’ ancestors and not the land claimed by the respondents. He also laboured in vain to convince that the alleged mound demarcating the western boundary did not exist but that the boundary is demarcated by 26 mounds arranged in such a way that the path from Aworo or Oshu to Inashin village running along the western boundary of the land in dispute lies between the mounds.

From the evidence on record, the findings of the learned trial Judge that the plan exhibit 4 accurately delineated the land in dispute and that the boundaries were not in doubt were well founded. The approach of the learned trial Judge to the question of the identification of the land is laudable and his acceptance of the agreed boundary marks to determine the question is unimpeachable.

I have myself examined the plans and the evidence and can find no ground whatever for disturbing the findings of fact by the High Court and their confirmation by the Federal Court of Appeal.

I will accordingly dismiss and I hereby dismiss the appeal and affirm the decisions of the Federal Court of Appeal with costs to the respondents assessed at N300.00

Eso, J.S.C. I have had the opportunity to read in draft the judgment just read by my learned brother Obaseki, J.S.C. I do not only agree with the conclusion but with the reasons given thereby, which I hereby adopt, to dismiss the appeal with costs as contained in the aforesaid judgment.

Aniagolu, J.S.C. I have had the opportunity of reading in draft the judgment just delivered by my learned brother Obaseki, J.S.C. I agree that for the reasons therein stated, this appeal should be, and is hereby, dismissed, with N300.00 costs to the respondents.

Uwais, J.S.C. I have had the advantage of reading in draft the judgment read by my learned brother Obaseki, J.S.C. I agree with it and will accordingly dismiss the appeal with N300.00 costs to the respondent.