➥ CASE SUMMARY OF:
Chief N.T. Okoko V. Mark Dakolo (SC.409/2001, 14 Jul 2006)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Traditional history;
Acts of possession.
➥ CASE FACT/HISTORY
This appeal is against the judgment of the Court of Appeal, Port Harcourt Division presided over by Ogebe, JCA. Judgment was entered for the plaintiff, now appellant in the High Court for declaration of title, damages for trespass and injunction on 28th August, 1992. Being dissatisfied, the defendant now respondent, appealed to the Court of Appeal sitting at Port Harcourt before which he filed a total of seven grounds of appeal. In the judgment earlier delivered by the High Court, a lake within the land in dispute was awarded to the defendant who did not counterclaim. On that basis, the plaintiff filed a cross-appeal challenging that part of the judgment. Briefs of argument were later filed and exchanged including a respondent’s cross-appeal. In its considered judgment earlier referred to, the court below, allowed the appeal, set aside the decision of the High Court and dismissed the claim. The cross-appeal was also dismissed with costs assessed at N5,000 to the respondents.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
↪️ I. Was it proper in law for the court below to rely on evidence of traditional history given by the respondent on facts not pleaded in the further amended statement of defence and in the absence of such evidence, would the court below be right in holding that the evidence of both parties was on the balance and ought to have been subjected to the Rule in Kojo II v. Bonsie (1957) 1 WLR 1223?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE COURT BELOW WAS WRONG TO RELY ON FACTS NOT PLEADED BY THE RESPONDENT
‘The answer to be proffered, in my opinion, is that the court below was wrong when it relied on the evidence on the facts not pleaded in the further amended statement of defence. I am also of the view that the decision of the learned trial Judge cannot be faulted. It was correct in law for the learned trial Judge to hold that the defendants’ evidence on the unpleaded facts ought to be discountenanced as it is inadmissible. In Eze and 6 Ors. v. Atasie and 3 Ors. (2000) FWLR (Pt. 13) 2180 at page 2189; (2000) 10 NWLR (Pt.676) 470 it was stated emphatically thus: “If the evidence is at variance with the pleading, such evidence will have no value. It will be discountenanced because it is contrary to the issues joined and therefore goes to no issue worthy of consideration.” At page 2193 paragraphs E – F, Katsina-Alu, JSC put it succinctly thus: “So, a party relying on evidence of traditional history must plead his root of title. Not only that he must show in his pleading who those ancestors of his were and how they came to own and possess the land and eventually past it (sic) him.” And at page 2195 paragraphs B – C, Ejiwunmi, JSC put clearly, as follows: “It must be remembered that once pleadings are ordered, filed and exchanged, the parties and the courts are bound by the pleadings so filed. It therefore follows remorselessly that evidence must be led in accordance with the pleadings. Evidence led not in conformity with the pleadings and/or upon facts not pleaded went to no issue. “(Italics mine for emphasis). The principle of law is the same whether the pleadings and evidence are those of the plaintiff or the defendants. There is a plethora of decided cases on this issue but it will not be out of place to call in aid especially on Akinloye v. Eyiyola (1968) NMLR 92 in which Coker, JSC at page 95 thereof held as follows: “The defendants did not plead the names or histories of the several ancestors mentioned by them or on their behalf in evidence. Such evidence should not have been allowed without an amendment of pleadings.” That decision was cited and followed in Alli v.Alesinloye (2000) FWLR (Pt. 15) 2610 at page 2653 paragraphs D – H; (2000) 6 NWLR (Pt.660) 177. See also Obulor v. Obora (2001) 4 SC (Pt. 1) 77 at page 79 – 80; (2000) 8 NWLR (Pt.714) 25.’
THE RULE IN KOJO II V. BONSIE DOES NOT APPLY TO THE INSTANT CASE
‘Thus, for the Rule to apply, there must be evidence of traditional history from both parties which are in conflict, one with the other, such that the court cannot justifiably prefer one to the other. This was the decision in Eze and 6 Ors. v. Atasie and 3 Ors. (supra) at 2190 paragraphs D – E. The contention there is that as material parts of the evidence of traditional evidence of traditional history put forward by the defendants were not pleaded, the evidence of both parties cannot be said to be in conflict so as to necessitate the application of the rule.’]
.
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↪️ II. Whether the court below was right in upsetting the findings of the trial court on the basis of failure to apply the Rule in Kojo II v. Bonsie (supra), without taking into consideration the credibility of the respondent’s evidence of traditional history and acts of recent possession?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE TRADITIONAL HISTORY OF THE RESPONDENT ARE CONTRADICTORY AND IN FACT SUPPORTS THE APPELLANT’S CASE
‘In paragraph 7(f) of the further amended statement of defence the defendants pleaded as follows: “The ancestors of the 1st and 2nd defendants originally settled in a place within the land in dispute. The place is shown on the plan. ‘Near this old settlement is the big shrine of Agburuku.’ In evidence the DW1 said the juju belonged to Amaran and the shrine is located on the land in dispute and it still exists ….” ….. He said further that the shrine was represented by a basket of feathers, a big chain, a glass, a bottle and a saucer. He testified also that 20 members of the defendants’ family went with the Surveyor when he surveyed the land in dispute. His evidence was contradicted in two material areas: (i) the DW4 (the Surveyor) testified contradicting him (PW1) that what was shown to him as representing the Agburuku shrine was “a big cotton tree” and same was indicated on the survey plan he produced (exhibit “G”). As to the first area of contradiction, the learned trial Judge decided by stating: “I agree with the contention of the plaintiffs counsel that there is an inconsistency here.” The old settlement where the defendants’ family lived which was said to be close to the Agburuku shrine was also shown in the survey plan exhibit “G”, But contrary to the evidence of the DW1, the so-called old settlement is very far from the Agburuku shrine. To this the learned trial Judge remarked: “Therefore it cannot be said in any conceivable sense that the old settlement and the Agburuku juju shrine are in one and the same place or close to each other as alleged in paragraph 7(f) of the statement of defence.” In my view, this further erodes the potency of the evidence of traditional history of the defence. I am of the firm view therefore that with such contradiction and inconsistency in the evidence of the defence the learned trial Judge was right to reject the traditional history relied on by the defence and was right to refuse to apply the rule in Kojo II v. Bonsie (supra). He was in my opinion equally right to have decided that “the plaintiffs’ evidence of traditional history appears … to be stronger than that of the defendants.”’
‘With such contradiction the evidence of the defendants on the traditional history was so manifestly discredited that no reasonable tribunal can rely on it. That was what the learned trial Judge was clearly saying which was misconstrued by the learned Justice of the court below as departure from all well known principles and decided cases of superior courts. In assessing the credibility “of the evidence of traditional history and facts of recent possession given by the defence,” the learned trial Judge gave areas “which tend to undermine its probative value.” He now assessed the evidence of the defence as pleaded in paragraph 7(a) and (b) of the amended statement of defence (sic) concerning Toloke, a daughter of Amaran, who got married to Isere of Obunugha. The defence evidence was that Amaran gave.Toloke a portion of land to farm. Members of plaintiff’s family who are relations of Toloke’s children joined Toloke to farm on the land given to her by Amaran. That land which was part of the land in dispute did not revert back to the defendants. The learned trial Judge found that this evidence supported the claim of the plaintiffs that they were in possession of the land in dispute, adding, that the area was not shown to the trial court. This aspect of the evidence was not considered by the court below.’
‘From the foregoing, I agree with the appellant’s submission that the learned Justices of the Court below were wrong in law when they held that “the learned trial Judge was in error in resorting to the “comparisons” to determine which of the competing histories was more probable in order (sic) declare title to the land in dispute in the respondents.” In fact, it has been held in Biariko v. Edeh-Ogwume (supra) at page 114 lines 20 – 39 that:- “It is not the law that once there are conflicts in the traditional/histories adduced, the court must promptly declare them inconclusive and thereupon proceed to consider recent acts. What indeed happens is that the case being one fought on hearsay upon hearsay, the trial court has a duty to find which of the two histories is more probable by testing it against other evidence in the case. It is when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ‘ownership.’’]
.
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↪️ III. Whether the court below was right in its application of the provisions of sections 46 and 146 of the Evidence Act, 1990 as a basis for setting aside the award of damages and injunction when the appellant had proved title through traditional history?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[AFTER PROOF OF TRADITIONAL HISTORY, THERE IS NO ADDITIONAL BURDEN ON THE PLAINTIFF
‘In a case such as the instant case, in which the plaintiff has proved title by traditional history there is no additional burden on such plaintiff to also prove exclusive possession because the presumption is that the person having title to the land is in lawful possession. In Makinde v. Akinwale (2000) FWLR (Pt.25) 1562; (2000) 2 NWLR (Pt.645) 435 it was decided thus:- “If the traditional history had truly broken down, the appellants’ case would have been destroyed. But in the circumstances of the present case, section 145 is wholly inapplicable, in my view, because the appellants have indeed succeeded in proving their title through traditional history which was sufficiently supported by the evidence accepted by the lower court. The inference of the respondents’ possession of the land in dispute would be that it is trespassory. The appellants would securely rely on their title and regard the respondents as trespassers.” Per Uwaifo, JSC at page 1582 paragarphs E – F.’
‘Thus, once title has been proved, the person having title to the land is presumed to be in lawful possession and the other does not acquire possession by his act of trespass vide Akinterinwa v. Oladunjoye (2000) FWLR (Pt. 10) 1690 at 1711 paragraphs C – D; (2000) 6 NWLR (Pt.659) 92; Ayinla v. Sijuwola (1984) 1 SCNLR 410 at 426 paragraph C. Once the plaintiff in a case proves title by one of the five methods by which ownership of land may be proved, the provisions of sections 46 and 146 of the Evidence Act cannot operate against him.’]
.
.
.
✓ DECISION:
‘In sum, the decision of the court below should be set aside and the appeal allowed in its entirety while the judgment of the trial court should be restored except the award of the Egwebara lake to the respondent which should be set aside. Appeal allowed with costs assessed at N10,000 to the appellant.’
➥ FURTHER DICTA:
⦿ RULE IN KOJO II V. BONSIE (1957) 1 WLR 1223
Simply put, the Rule is to the effect that “where there is conflict of traditional history, the best way to test the traditional history is by reference to facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.” — Onu JSC.
⦿ REQUIREMENT FOR ACTS OF POSSESSION TO ACE THE PARTY RELYING ON IT
Moreover, for the law is that for section 46 of the Evidence Act to apply in favour of the party pleading it, there must be proof or admission by the other party that the land in dispute is surrounded by other lands belonging to the party craving its aid. See Onwuka v. Ediala (supra) at page] 82, 199 – 200 paragraphs H – C. — Onu JSC.
⦿ FAILURE TO DETERMINE ISSUE IN CROSS-APPEAL IS A DENIAL OF FAIR HEARING
In this wise, I am in agreement with the appellant that in the circumstances the failure of the court below to determine the issues in the cross-appeal amounted to a denial of fair hearing and resulted in a miscarriage of justice. See Alakija v. Medical Disciplinary Committee (1959) SCNLR 87; (1959) 4 FSC 38; Mora v. Nwalusi (1962) 2 SCNLR 73 and Stool of Abinabina v. Enyimadu 12 WACA 171 at 173. — Onu JSC.
⦿ TAMPER VS FORGE A DOCUMENT
To tamper with a document has the effect of rendering it unreliable but to forge or falsify it would nullify it completely. — Onu JSC.
⦿ WHERE DAMAGES IS LOW, SUCH WILL BE ALTERED ON APPEAL
The trial court did not make any assessment and the court below did not consider this issue at all. Whereas, in this case, the award of general damages has been shown to be manifestly too low, on appeal such general damages will be altered as decided in Dumez (Nig.) Ltd. v. Patrick Nwaka Ogboli (1972) 3 SC 196 at 204 to 205. — Onu JSC.
⦿ RATIONALE BEHIND FACTS NOT PLEADED GOES TO NO ISSUE
And that vindicates the position of counsel for the appellant. The law is not only trite but most elementary that facts not pleaded go to no issue. The rationale behind this principle of law is that by our adversary system of civil procedure in the High Court, facts are first erected in the pleadings before the trial of the case. This is to enable the parties not to spring surprise at the trial and to narrow down the areas of disagreement so that parties will not think the sky is the limit in the production of facts in the matter before the court. Subject to the fairly liberal rules of amendment of pleadings, parties are bound by their pleadings. While a party is free to apply for the amendment of his pleadings, once the amendments find themselves in the last state of pleadings, the party is bound by them and he cannot move out of them in search for greener facts completely outside the ones duly pleaded. — Tobi JSC.
⦿ VISITING THE RECORDS OF PROCEEDING TO RESOLVE ISSUES IS NOT SPECULATION
What the learned trial Judge did by comparing the versions of the competing evidence did not surprise me although it surprised the Court of Appeal. What could the trial Judge have done in the circumstances, than going into the record to resolve the competing evidence in favour of one of the parties? I think the Judge did the correct thing although the Court of Appeal said that he speculated on what ought to be the history of the root of title of the appellant requiring to be pleaded. I do not think the Court of Appeal was right in describing what the learned trial Judge did as “speculative”. The word speculation generically conveys some element of cogitation or guess and a trial Judge who goes into his record to gather what witnesses said cannot be said to be in speculation. If the learned trial Judge wanted to speculate, all he needed to do was to test his memory of remembrance and use whatever he remembers in writing the judgment. And because the human being that he is, memory could fail, in certain instances, he is bound to speculate. But he did not do that. He went straight to the record and arrived at the conclusion. That cannot be speculation. — Tobi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Onu, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ WHERE TRADITIONAL HISTORY IS CONFLICTING
✓ Obioha v. Duru (1994) 8 NWLR (Pt. 365) 631 at 650 paragraphs E – F Ogundare, JSC made the following emphatic pronouncement:- “This approach to a resolution of conflicting traditional histories is, in my respectful view, applicable where both histories are plausible and capable of creditability, where however, as in the case on hand, the traditional history put out by one of the parties is so intrinsically conflicting that a reasonable tribunal would not place credence on it, there is no room for the application of the approach. Witnesses for the defence, as rightly found by the learned trial Judge, contradicted each other on traditional history relied on for the defence. The learned trial Judge would be right, in my respectful view, in such a case to reject the traditional history relied on by the defence. Similarly, where there is evidence adduced by one side supportive of the traditional history relied on by the other side, the trial Judge would be right in accepting the latter traditional history.”
✓ Biariko v. Edeh-Ogwume (supra) at page 114 lines 20 – 39 that:- “It is not the law that once there are conflicts in the traditional/histories adduced, the court must promptly declare them inconclusive and thereupon proceed to consider recent acts. What indeed happens is that the case being one fought on hearsay upon hearsay, the trial court has a duty to find which of the two histories is more probable by testing it against other evidence in the case. It is when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ‘ownership.”
➥ REFERENCED (OTHERS)
