Lawani Alli & Anor v. Chief Gbadamosi Abasi Alesinloye & Ors

By a writ of summons
issued on the 11th day of December, 1987 in the Ibadan Judicial Division
of the High Court of Justice, Oyo State, the plaintiffs, for themselves
and on behalf of the Oroye family, instituted an action jointly and
severally against the 1st to the 5th defendants as representatives of
the Alesinloye family and the 6th to the 9th defendants claiming as
follows:-
(a) Declaration of Title to a Statutory Right of Occupancy over all that
piece or parcel of land situate, lying and being at Igbo-Ori-Oke Express
Road, Ibadan, the Survey plan of which is filed with this Statement of
Claim.
(b) The sum of N20,000.00 (Twenty Thousand Naira) being special and
general damage for continuing acts of trespass committed and still being
committed by the defendants on the land in dispute.

P.1

(c) An order of injunction restraining the defendants, their servants,
agents, privies or any person claiming through or under them from
committing further acts of trespass on the said land in dispute”.

Pleadings were ordered in the suit and were duly settled, filed and
exchanged. At the subsequent trial, both parties testified on their own
behalf and called witnesses.

The case, as presented by the plaintiffs, briefly, is that the land in
dispute was originally acquired and owned by Opeagbe, a great warrior in
Ibadan over 200 years ago. This original acquisition and ownership of
the land in dispute by Opeagbe was by way of first settlement in
accordance with the customary law and usage of the people. Opeagbe
settled on the land in dispute until about 150 years ago when he granted
the land to the plaintiffs’ ancestor, Oroye, another warrior under him
by way of an absolute gift in accordance with customary law.
Consequently, Oroye took physical possession of the land as soon as
Opeagbe made the grant thereof to him and made maximum use thereof by
way of erecting huts on the land, cultivating food crops such as yams
and planting various economic trees to wit, orange, coffee, kola nuts
and oil palm trees thereon. On Oroye’s death, his children and their
descendants, that is to say, the plaintiffs, continued to use the land
in dispute, inter alia, for farming. They also exercised various acts of
ownership and possession over the same, including the prosecution and
defending of actions in respect thereof. They tendered Exhibits F and J
which are decisions concerning the cases in respect of which they
obtained judgment against third parties over the land in dispute. The
plaintiffs tendered Exhibit A. the evidence of Oladejo Adeleke
Alesinloye, a member of the 1st – 5th defendants’ family in favour of
the plaintiffs Oroye family in suit No. 1/165/77 in respect of the land
in dispute. They also relied on a confirmation of a customary grant by
the Opeagbe family by virtue of a deed made on the 8th day of November,
1972 and registered as No. 55 at page 55 in volume 1427 at the Registry
of Deeds kept in the land Registry at Ibadan. This said deed. Exhibit C
was executed as mere documentary evidence only on the grant to Oroye
family by the Opeagbe family.

The 1st – 5th defendants, on the other hand, resisted the claim of the
plaintiffs as owners of the land in dispute. It was their case that
their ancestor, Bankole Alesinloye, another warrior and Balogun of
Ibadan, about the year 1820 acquired a large piece or parcel of land of
which the land in dispute formed a part by settlement under customary
law and thereby became the absolute owner thereof.

P.2

They claimed that the defendants’ ancestor, Bankole Alesinloye, and his
family made grants of various portions of the land thus acquired to
various families which included the plaintiffs’ Oroye family. The
customary grant by the Alesinloye family to Dosunmu, the then head of
the plaintiffs’ Oroye family, was made sometime between 1925 and 1929
during the reign of Foko. They denied that Oroye acquired the land in
dispute from Opeagbe when, they claimed, did not own any parcel of land
in the neighbourhood. They claimed that members of the Alesinloye family
exercised acts of ownership on the land in dispute by farming thereon
after its acquisition by settlement by the said Bankole Alesinloye.

At the conclusion of hearing, the learned trial Judge, Oloko. J after a
careful review of the entire evidence found for the plaintiffs and
pronounced thus:
“The sum total of the above findings is that the plaintiffs must
succeed in the first leg of their claim, to wit Declaration of Title to
a Statutory right of Occupancy over all that piece or parcel of land
situate, lying and being at Igbo-Ori-Oke via Express Road. LL 9684 dated
22/4/85”

On the issue of trespass and perpetual injunction, the learned trial
judge observed:-
“As for the general claim for trespass. I accept the evidence of the
Plaintiffs, particularly the 4th PW that the defendants, excepting the
7th defendant, went on the land in dispute bulldozed it and destroyed
both the economic crops and Oroye layout beacons…
Plaintiffs are claiming N11,600.00 as costs of the 58 plots of the
layout destroyed by the defendants. This is borne out by Exhibit L and
L1. I accept their evidence. I also award N400.00 as general damages for
trespass.

I am satisfied from the totality of the evidence adduced in this case
that an order for perpetual injunction should be made against the
defendants and/or their agents”.

He then decreed in favour of the plaintiffs against the defendants as
follows:-
“In sum, the judgment of the court will be as follows:
(a) Declaration of Title to a Statutory Right of occupancy over all that
piece or parcel of land situated lying and being at Igbo-Ori-Oke via
Express road, Ibadan shown on the survey plan No. LL9684 dated 22/4/85.

P.3

(b) The sum of N12,000.00 (Twelve Thousand Naira) is awarded against
the defendants being special and general damages for continuous acts of
trespass committed and still being committed by the defendants on the
land in dispute.
(c) An order or Perpetual injunction restraining the defendants, their
servants, agents, privies or any person claiming through or under them
from committing further acts of trespass on the said land in
dispute”.

Being dissatisfied with the said judgment, the defendants lodged an
appeal against the same to the Court of Appeal, Ibadan Division which
court in a unanimous decision on the 14th day of April, 1992 allowed the
appeal, set aside the decision and orders of the trial court and
dismissed the plaintiffs’ claims.

Two main grounds were relied upon by the court below for allowing the
defendant appeal. The first ground revolved around Exhibit A which
constituted a part of the evidence adduced by the plaintiffs in proof of
their claim. It was the view of the court that Exhibit A was
inadmissible in evidence and it consequently ordered that the same be
expunged from the records. I think I ought to mention that one or two
other issues were raised and canvassed by the parties with regard to
certain aspects of the contents of Exhibit A in respect of which the
court below accordingly relied upon. I will have cause in the course of
this judgment to comment on these issues.

The second ground upon which the court below allowed the defendants’
appeal is that the plaintiffs’ failed to adduce evidence of how
Opeagbe, the plaintiffs predecessor in title acquired ownership of the
land in dispute to enable him to make a customary grant of the same to
the plaintiffs. It is mainly on the foregoing two grounds that the court
below dismissed the plaintiffs’ claims in their entirety.

Aggrieved by this decision of the Court of Appeal, the plaintiffs have
now appealed to this court. I shall hereinafter refer to the plaintiffs
and the defendants in this judgment as the appellants and the
respondents respectively.

Five grounds of appeal were filed by appellants against this decision of
the Court of Appeal. It is unnecessary to reproduce them in this
judgment. It suffices to state that the parties pursuant to the rules of
this court filed and exchanged their written briefs of argument.

P.4

The five issues distilled from the appellants’ grounds of appeal set
out on their behalf for the determination of this court are
as follows:-
“1. Was the court below not wrong in law when it held that Exhibit
‘A’ was inadmissible as evidence against the proprietary interest of
Ladejo Adeleke and or the Alesinloye family and that the Alesinloye
family was not estopped by conduct or by standing by?
2. Whether the court below was not wrong in law when after expunging
Exhibit “A” from the Record, it held that the appellants did not
discharge the burden of proving grant of the land in dispute to their
ancestor without applying the principle in Ajayi v. Fisher (1956) 1 FSC
99; (1956) SCNLR 279 and without properly or sufficiently considering
the other relevant evidence and or calling on the counsel to address
it.
3. Whether the Court below was not wrong in law when a declared a
material part of the evidence given by PW4 as “hearsay” and thereafter
held that Ladejo Adeleke Alesinloye unilaterally put himself up as a
witness to assist his kith and kin, the Oroye family.
4. Whether the Court below did not misconstrue the appellants’ case
and thereby misdirected itself in law and caused a miscarriage of
justice when it held that for the appellants to prove a grant of the
land in dispute to their ancestor, it was necessary for them to call
members of Opeagbe family to adduce evidence as to how Opeagbe divested
the original owners of title to the land in dispute.
5. Whether after expunging Exhibit ‘A’ from the Record, the Court
below did not fail in advert its mind to the other material evidence on
Record before holding that the Appellants did not prove grant to the
ancestor”.

The respondents for their part, submitted four issues in their brief of
argument as arising in this appeal for determination. These issues are
framed thus:-
“1. Whether the Court of Appeal was right in holding that there was
no evidence as to Ladejo Adeleke’s source of authority to give evidence
for Oroye family in suit No. 1/165/77.
2. Whether the Court of appeal was right in holding that Exhibit A
was inadmissible and consequently expunged it from the record.
3. Whether after expunging Exhibit “A” from the Record, the Court
of Appeal did advert its mind to the other material evidence in the case
before holding that the appellants did not prove a grant to their
ancestors, and whether there were pieces of evidence left which should
be enough to prove grant.

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4. Whether the Court of Appeal misconstrued the case of the
   appellants because the court said “…it is therefore necessary for
   them to adduce evidence of how Opeagbe divested the original owners of
   the land of title and title came to be vested in them…”\

I have closely examined the two set of issues identified by Learned
Counsel in their respective briefs of argument. In my view, the question
raised by the appellants not only covers those formulated by the
respondents, they appear to me enough for the determination of this
appeal. I will accordingly adopt the set of issues identified by the
appellants for my consideration of this appeal.

At the oral hearing of the appeal, both learned counsel for the parties
adopted their respective briefs of argument and proffered additional
submissions in amplification thereof.

The main thrust of the submission of Alhaji Isola Gbenla on behalf of
the appellant with regard to the document, Exhibit A, is that its
contents in parties constitute admissions by a witness, now dead,
against the proprietary interest of the respondent under sections 19,
20(1) 23 and 26 of the Evidence Act. He contended that the document
having satisfied the conditions set out under section 33(c) of the
Evidence Act was therefore properly admitted in evidence. In this
regard, learned counsel called in aid the decision of this court in
Anyaegbu *Ojiegbe v. Gabriel Okworanyia & Ors. (1962) 1 All NLR (Pt.4)
605 at 609 – 610, (1962) 2 SCNLR 358.* He stressed that it is not in
dispute that Exhibit A, the evidence of the late Ladejo Adeleke
Alesinloye in suit No. 1/165/77 between the appellants and one Alhaji
A.S. Adebolu, was in respect of the land now in dispute. It is, the said
Ladejo Adeleke Alesinloye, admitted that the land in dispute belonged to
the appellants’ Oroye family. He further admitted that the evidence of
traditional history pleaded and testified to by the appellants to the
effect that the land in dispute originally belonged to Opeagbe who in
accordance with customary law granted the same to his war lieutenant,
Oroye, is well founded. He also admitted that he testified in Exhibit A
as the representative of this Alesinloye family.

On the observation by the Court of Appeal that Ladejo had dual interest
or loyalty to misrepresent matters learned counsel described this as
totally misconceived and unfounded as this material fact was not pleaded
by the respondents but was merely suggested by learned counsel in his
final address before the court. He submitted that no legal evidence was
led before the trial court to establish that Ladejo is related to Oroye
family or that he had proprietary interest in the Oroye family landed
property. Alternatively, he stressed that the mere fact that an
individual is related to member of family cannot ipso facto establish
the individual’s membership of such family.

P.6

Learned counsel family contended that the court below having raised the
issue of the admissibility of Exhibit A suo motu ought to have given
both counsel the opportunity to be heard on the issue. This is what the
court below failed to do.

On issue 2 and 5, it was contended that apart from the admission in
Exhibit A, there was categorical and unequivocal oral evidence by the
appellants to the effect that the land in dispute was originally
acquired by first settlement by Opeagbe some 200 years ago but that the
subsequently made a grant of the same under customary law to Oroye, the
appellants’ predecessor in title. This evidence was fully considered
and accepted by the trial court as reliable. Learned counsel then
submitted that the records, was in further error when it failed to
consider the appellants’ copious oral evidence in respect of their
title to the land in dispute. He stressed that had the court below fully
and properly considered the entire case of the appellants, it would have
come to the conclusion that there was simple evidence that Opeagbe
acquired the land in dispute by first settlement and that he took
effective possession of the same by farming thereon before he granted it
to Oroye.

Turning to issues 3 and 4 learned counsel contended that the court below
was in error when it described the evidence of PW4 Alhaji Lasisi Olasupo
Alli, the appellants’ principal witness, on how the land in dispute was
originally acquired by first settlement as hearsay. He submitted that a
witness once sworn to give evidence, is not barred from testifying to
any relevant facts within his knowledge whether such evidence relates to
traditional history or otherwise. He contended that the court below was
therefore in error when it held that PW4 was incompetent to testify on
the acquisition of the land in dispute by Opeagbe and its subsequent
grant to Oroye. He reminded the court that on the evidence, both Opeagbe
and Oroye were great warriors in Ibadan who fought side by side and made
joint conquests.

P.7

Both families having enjoyed common entity as warlords, with Oroye
serving under Opeagbe and having carried out their war exploits in
collaboration with each other, it would not be a matter of surprise that
the traditional history concerning the acquisition of the land in
dispute by Opeagbe was within the knowledge of members of the Oroye
family. Learned counsel contended that what the law requires a party so
do is to call evidence in proof of his case and not to call a particular
witness if he can prove his case otherwise. In his view, the appellants
on the evidence led and accepted by the trial court, fully discharged
the onus of proof on them in proof of their title to the land without
necessarily calling on members of the Opeagbe family to testify. He
finally submitted that the court below discharged the findings and
conclusions of the trial court without any justification and without any
reference to the pleadings and the evidence. Learned counsel urged this
court to resolve the issues under consideration in favour of the
appellants, allow the appeal, reverse the decision of the court below
and restore the judgment of the trial court.

Learned counsel for the respondents Alhaji R.A. Sarumi argued with
regard to issue 1 which deals with the admissibility of Exhibit A that
the document did not comply with the provisions of section 33(c) of the
Evidence Act. He adopted the reasoning of the court below to the effect
that Exhibit A was evidence given by a witness in a previous trial and
may only be used in a subsequent trial to impeach the credit of the
maker if he said something different from what he had earlier deposed
to. He concluded by stating that Oladejo Adeleke, the maker, was not a
witness in the present case and that Exhibit A might never to have been
admitted in the present proceedings.

On issues 2, 3, 4 and 5 the respondents submitted that on the strength
of the pleadings, it was incumbent on the appellants to call evidence to
establish the title of their grantors to the piece of land in dispute.
It was argued that the appellants’ acquisition of the land through a
grant from Opeagbe cannot be sustained unless they can show that Opeagbe
had good or valid title thereto. Learned counsel for the respondents
then submitted that the appellants neither pleaded nor led evidence to
establish how their predecessors acquire the land in dispute. It was
further contended that the appellants should have called the descendants
of Opeagbe or co-warrior of Opeagbe or other war lieutenants of Opeagbe
who knew or had heard of such settlement to give evidence to establish
how the latter acquire the land in dispute. This they failed to do. He
drew the attention of the court to the decision of this court
in Ezewani v. Obi Onwordi and Ors. (1986) SC 402 at 450; (1986) 4 NWLR
(Pt.33) 27 and stressed that findings in other cases, such as Exhibit A
& B, should not be exported from those cases into another case to
supplement any deficiency in the second case.

P.8

In his view, the appellants failed to prove the grant of the land in
dispute to them. He further argued that the court below was right when
it held that there was no evidence on how Opeagbe acquired title to the
land in dispute. He considered the evidence of PW4, Ladejo Adeleke
Alesinloye on the issue of the acquisition of the land in dispute by
Opeagbe as hearsay. He urged the court to dismiss the appeal.

It seems to me convenient to consider issue 2, 3, 4 and 5 together.
Basically they relates to whether or not the court below was right in
law when it held that title to the land in dispute was established by
the appellants. It gave two main reasons for arriving at this
conclusion. The first is that the appellants were unable to establish
the title of the Opeagbe family, their predecessors in title, to the
land in dispute. The second is that the appellant also failed to prove
the grant to Oroye of the land in dispute by the great warrior Opeagbe.

In support of their root title to the land in dispute, the appellants
pleaded in paragraphs 3 – 8 of their Statement of Claim as follows:-
“3. The parcel of land claimed by the plaintiffs situate at
Igbo-Ori-Oke or Ajawele and about 5 kilometeres to Mapo Hall, Ibadan, is
verged “RED” while the area trespass upon and cause of dispute is
verged “Yellow” on Survey plan No. LL.9684 of 22nd April, 1985 with
this statement of claim.
4. The said area of land claimed by the plaintiffs is bounded by the
parcels of land belonging to Aranimogun Atagba Akintola, Abidigugu and
Akano families and by Oniponrin Stream flanked by Alesinloye family
land.
5. The plaintiffs over that the said land was originally acquired by
settlement according to Native Law and Custom by Opeagbe a Warrior in
Ibadan over 200 years ago.
6. The parcel of land claimed and disputed belongs to the entire
members of Oroye family made up about 300 members both males and
females. \

7. The plaintiff’s ancestor was Oroye, a warrior under Opeagbe who
   granted the entire land claimed and in dispute to the said Oroye as an
   absolute gift according to Native Law and Custom about 150 years ago. \
8. The said Oroye took possession of the land and continued to
   cultivate it. Planning kola, oil palms, yam, planting without let or
   hindrance while he also erected two huts on the land.”

The respondents, for their part, joined issues with the appellants on
the question of their root of title as pleaded above. They pleaded
thus:-

P.9

“4. The defendants aver that Bankole Aleshinloye, a warrior and
Balogun of Ibadan about 1820, the ancestor of the defendants, of
Isale-Ijebu, Ibadan, acquired the land by settlement on the large piece
of or parcel of land stretching from Ile-Tuntun, that is Oloro Ajawele,
to Adaramagbo on the right and left of Olojuoro Road, under the native
law and custom about 180 years ago and thereby became the absolute owner
thereof.
5. The said Aleshinloye farmed on the land and had a village on his
land at a spot close to Owode market, and also did all other acts of
ownership on his land in his life time.
6. On the death of Bankole Aleshinloye, his land became Aleshinloye
family land.
7. The said Bankole Aleshinloye and his family successively made
absolute grants of portions of the land to others who include,
Balarojowu, Abidikugu, Akano, Oroye family, and others.
8. The said Aleshinloye family land included the land now verged
‘Red’ on the defendants’ plan, the area of express Road verged
‘purple’ on the plaintiffs’ plan, and the built up area on the
plaintiffs, plan, thereon verged ‘Green’, and part of the land sold to
S.B. Adewunmi and the land stretching therefrom up to Adaramagbo on
Olojuoro road.
9. The defendants aver that during the reign of Foko (1925 – 1929),
Dosunmu (Babalowo), the then Mogaji of Oroye family begged for the grant
of area marked ‘Purple’ and ‘Green’ on the plaintiffs’ plan for
himself and Oroye family for farming purpose from Okunola Abasi (the
Mogaji Aleshinloye family) through Aminu, the 2nd defendant. Tafa
Owoade, and Mogaji Akano.
10. The defendants further state that it was in the reign of Foko
that the area marked ‘Purple’ and ‘Green’ on the plaintiffs’ plan
was granted to Dosunmu for their family and not that any Oroye acquired
any land in that area by grant from Opeagbe.
11. The defendant’s further state that Opeagbe did not acquired land
in between Aleshinloye’s land, Opeagbe land is beyond Akintola’s land
shown on the plaintiffs’ plan”.
It is thus crystal clear that the respondent did not accept the
appellants’ version of their root of title.

It is not in doubt that once a party pleads and traces his root of title
in an action for a declaration of title to land action to a particular
person of source and this averment, as in the present case, is
challenged, the party, to succeed, as a plaintiff in the suit must not
only establish his title to such land, he must also satisfy the court as
to the title of the person or source from whom he claims.

P.10

He cannot totally ignore the validity of his grantor’s title where this
has been challenged and concentrate only on his own title to such land
as he would not have acquired a valid title to land if in fact his
grantor at all material time has no title thereto. See Mogaji and
others v. Cadbury Fry (Export) Ltd. (1985) 2 NWLR (Pt.7)
393. Accordingly, the appellants to succeed in the present case, must
not only establish their title to land in dispute, they must go further
to satisfy the court on the validity of Opeagbe’s title, that is to
say, on how Opeagbe derived his title to land in dispute.

Now, the law is well settled that there exist five recognized methods by
which ownership land may be established. These, briefly, comprise as
follows:-
(i) Proof by traditional history or traditional evidence
(ii) Proof by grant or the production of document of title.
(iii) Proof by acts of ownership extending over sufficient length of
time, numerous and positive enough as to warrant the inference that the
persons exercising such acts are the true owners of the land.
(iv) Proof by acts of long possession; and
(v) Proof by possession of connected or adjacent and in circumstance
rendering it probable that the owner of such land would to addition be
the owner of the land in dispute.
See *Idundun v. Okumagba (1976) 9-10 SC 277, at 246 – 250, Atanda v.
Ajani (1989) 3 NWLR (Pt.111) 511; and Anyanwu v. Mbara (1992) 5 NWLR
(Pt.242) 386* etc. From the state of the pleadings and the evidence
before the court it is quite clear that the appellants relied, firstly,
on traditional history with regard to the acquisition of the land in
dispute by Opeagbe and, secondly, on subsequent customary grant of the
land by Opeagbe to their ancestor Oroye. The appellants’ case, as
pleaded and testified to before the trial court, is that Opeagbe a great
warrior in Ibadan acquired the land in dispute by first settlement some
200 years ago and thus became the first owner thereof under customary
law. He settled and remained in effective possession of the land until
some 150 years ago when he made an absolute grant of the same under
customary law to his co-warrior and war lieutenant, Oroye, who at all
material time served under him.

P.11

Oroye, and after him, his descendants, have remained in effective
occupation and possession of the land, PW4, Alhaji Lasisi Olasupo Alli,
a star witness of the appellants in this case testified in part as
follows:-
“The land in dispute is owned by Oroye family, Opeagbe family was the
original owner of the land about 200 years ago. Opeagbe was a great
warrior in Ibadan and he settled on it over 200 years ago. Oroye was
another great warrior in Ibadan but he served under Opeagbe. About 150
years ago the land in dispute was granted to Oroye by Opeagbe. Opeagbe
put Oroye on the land and the latter took possession.
Oroye was cultivating the land, planting kola nuts, palm-trees, yams,
etc. Oroye also erected two huts on the land. He was never disturbed on
the land in dispute. Oroye is dead, he died over 100 years ago, he was
survived by his children. They are Alh. Gbadamosi, Akande, Ladele,
Dosumu and others. Oroye’s children also inherited the land and
continued cultivation thereon planting cocoa, pineapples, orange,
kolanut trees, coffee etc.”

The respondent resisted the appellants’ claim and testified as to their
version of traditional history in respect of the land in dispute. Their
version is that their ancestor. Bankole Alesinloye, another warrior and
Balogun of Ibadan around the year 1820 acquired by first settlement, at
large piece of parcel of land of which the land in dispute forms a part.
Their ancestor made grants of portions of this land to various persons
inclusive of the Oroye family. It is apparent from the case as presented
by the parties that there is a definite conflict in the traditional
evidence of the parties.

The first point I desire to make is that evidence of traditional
history, where this is found to the cogent and accepted by the court,
can support a claim for declaration of title to land. See *F.M. Alade v.
Lawrence Awo (1975) 4 SC 215 at 228 Olupebu of Ijebu v. Oso (1972) 5 SC
143 at 151, Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188. Idundun v.
Okumagba (1976) 9 – 10 SC 228.* In the present claim, however, it is
manifest that this is a case of a conflict in the traditional history of
the parties. The law is settled that where there is a conflict in
traditional history, the demeanor of witnesses if of little guide to the
truth of the matter as it must be recognized that in the course of
transmission from generation to generation of the traditional history
mistakes may occur without any dishonest motive whatever. In such a
case, the traditional history is to be tested by recent facts
established by evidence with a view to determining which of the
conflicting version is more probable. See Kojo v. Bonsie (1957) 1 WLR
1223 at 1227.

P.12

In the second place, the law is equally well settled that it is not
sufficient for a party who relies for proof of title to land on
traditional evidence, as in the present case, to merely prove that he or
his predecessor in title had owned and possessed the land from time
immemorial. Such a party is bound to plead such facts as-
(1) Who founded the land
(2) How the land was founded and
(3) Particulars of the intervening owner through whom he claims.
See Akinloye v. Eyiyola (1968) NMLR 92; Olujinle v. Adeogbo (1988) 2
NWLR (Pt.75) 238; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417;
Anyanwu v. Mbara (1992) 5 NWLR (Pty.242) 386 at 399. The onus in the
present case is therefore on the appellants not only to establish the
grant from Opeagbe to them but also to satisfy the court on their
grantor’s title to the land in dispute.
On Opeagbe’s title to land in dispute, the appellants pleaded and
testified to the facts that it was the said Opeagbe who first founded or
acquired the land, that he acquired by first settlement about 200 years
ago, that he remained in exclusive possession thereof until some 150
years ago when he made a grant of the same to Oroye, his war lieutenant,
with whom he had always jointly fought together and that the said Oroye,
and after him his descendants, that is to say, the appellants, have
remained the owners in possession of the land until this day.

The appellants in their effort to satisfy the trial court on Opeagbe’s
acquisition of or title to the land in dispute under customary law led
evidence on the aforementioned conditions pertaining to proof of
ownership of land by traditional evidence. Evidence was led that it was
Opeagbe who founded the land, that he founded it by first settlement and
that it was Opeagbe himself who made a grant thereof to Oroye, the
appellants’ ancestor, it is clear to me that the appellants not only
pleaded but adduced sufficient evidence to prove Opeagbe’s title to the
land in dispute, a title which he acquired under customary law by way of
first occupancy thereof.

The appellants also led oral evidence of the customary grant of the land
to their ancestor, Oroye. Both evidence of Opeagbe’s title and his
grant of the land were testified to by PW4, a witness whose evidence the
trial court accepted as reliable. Although the respondents submitted
that there was no evidence of any acts of possession or ownership by the
appellants on the land, this is neither borne out from the pleadings nor
from the evidence of the appellants.

P.13

At all events the appellants to prove their title to the land in dispute
did not rely on acts of long possession and/or ownership of which by
themselves also constitute another way by which title to land may be
proved. See Idundun v. Okumagba (supra). All the law requires a
plaintiff who relies on grant or original settlement to do in proof of
his title to land is simply to establish such grant of first settlement
to the satisfaction of the trial court and this he can do whether or not
this is accompanied by the exercise of dominion over the land in
dispute, an exercise which on its own may be sufficient to establish
title to land. See *Chief O. Odofin v. Ayoola (1984) 22 SC 72 at 105 and
Kuma v. Kuma 5 WACA 4.
*
I have already emphasized that the appellants led enough evidence of
Opeagbe’s possession of land and settlement on the land in dispute on
his acquisition thereof. Copious evidence was also led by them on their
numerous and various acts of possession on the land right from the time
Opeagbe granted it to them. More significantly, is their testimony with
regard to established recent facts which on the state of the law was
decisive in the determination of which of the conflicting traditional
evidence of the parties is credible.
“In 1954, my family instructed Chief Laniyan (deceased) to carry out the
survey of the entire land belonging to Oroye family. He carried out his
assignment in the presence of our boundary-men. He produced PLAN NO.
L/LA.157 attached to Exhibit ‘C’. Nobody challenged our family
throughout the survey exercise.
In 1972, the family decided to raise a loan from the bank using the
family land which is now in dispute as Mortgage. We got Exhibit ‘C’
from Opeagbe family in response to the request from the bank. In 1975,
the express road was being constructed and Government acquired part of
the land because the express road passed through it. Our crops were
enumerated. 2nd plaintiff represented the family then. A certificate of
enumeration was issued CROP ENUMERATION CERTIFICATE – EXHIBIT ‘E’.
In 1976, one Ilesanmi entered the land in dispute and started to
bulldozed our crop. We challenged him and reported him to the police at
Idiare. Ilesanmi claims that he bought the land from Opeagbe family. As
a result of his recalcitrant attitude we put Ilesanmi to court in
suitNo.1/307/76. We got judgment against Ilesanmi. This is the certified
true copy of the judgment. CERTIFIED TRUE COPY OF THE JUDGMENT IN SUIT
NO. 1/307/76 delivered on 20/6/80 by Yinka Ayoola, J. – Exhibit “F”. I
draw the plan of the case. This is the plan. No. LL8115 dated 1/8/77 –
Exhibit “G”.

P.14

In 1977, I got instructions from the family to layout the land in
dispute. Oroye family comprises about 300 people both male and female. I
carried out the layout and made a plan. Here is the plan LAYOUT PLAN OF
THE LAND IN DISPUTE, PLAN ON. 12 8257 dated 31/10/77 – Exhibit “H”.
While I was preparing the plan in respect of Suit 1/307/76 one Adebolu
now deceased saw me on the land, challenged me and sued me for trespass
on this same land in dispute. He further disclosed that Akano family
sold the land to him.
The Suit No. 1/165/77. I defend the action on behalf of Oroye family. We
obtained judgment against Adebolu. This is the certified true copy of
the judgment.
CERTIFIED TRUE COPY OF THE JUDGMENT IN SUIT NO. 1/165/77 delivered on
20/11/78 by Lande, J. Exhibit ‘J’.
I prepared a litigation plan for suit 1/165/77. Here is the plan. PLAN
NO. L1. 8284 dated 13/10/77 – Exhibit “K”.
I know one Ladejo Adeleke Alesinloye. During the pending of suit
1/165/77 my family approached Alesinloye family to come and give
evidence as our boundary man. Ladejo Adeleke was instructed by
Alesinloye to come and give the evidence. He came to give evidence.
COURT: Witness confirmed that Exhibit “A” is the certified true copy
of the evidence given by Ladejo Alesinloye”.
I need stress that the evidence of the appellants and, indeed, the case
presented by them were thoroughly considered and fully accepted by the
trial court. Said the learned trial judge:-
“Apart from the evidence of the plaintiffs, which I accept, coupled
with the evidence of some of the witnesses of the defendants that Ladejo
Adeleke used to represent the defendants in the laid matters in court,
the reasonable inference one can draw from the role of Ladejo Adeleke as
shown in Exhibit “A” is that Alesinloye family was only reciprocating
the good gesture shown by Oroye family in the ‘1984’ case above. In
sum, I hold the Ladejo Adeleke Alesinloye was representing the
Alesinloye family in the evidence he gave in suit No. 1/165/77 – Exhibit
‘J’ as shown in Exhibit ‘A'”.

On the appellant’s claim, in respect of grant of the land in dispute
to the by Opeagbe under customary law as against the respondents, claim
of ownership of the said land and grant of part thereof by their
ancestor, Alesinloye, to the appellants, the learned trial judge found
thus:-

P.15

“Let me state at this juncture that I accept and prefer, the evidence of
grant given by the plaintiffs, particularly the evidence of the 4th
P.W. to the adduced by the defendants. I refer the evidence of the
defendants relating to the grant of the land in dispute by Alesinloye
family to the plaintiffs. It is settled law that where a party relies on
and pleads a grant as his root of title, he is under a duty to prove
such grant to the satisfaction of the trial court.
I hold that the plaintiffs have proved their grant of the land in
dispute that is grant from Opeagbe family to the satisfaction of the
court. Even the subsequent events after the grant as claimed by the
defendants do not support their case.” (Italics mine). \

Turning to the respondents’ alleged claim that they were in possession
of the land in dispute, the learned trial judge dismissed the same as
incorrect and unsubstantiated. He said:-
“I reject in its entirety any evidence by the 1st – 5th defendants to
create the impression that at certain time or the other, some people
carried out any form of operation, be it in the form of extracting
gravel or processing palm oil or garri on the land in dispute.” \

He then concluded:-
The sum total of the above findings is that the plaintiff must succeed
in the first leg of their claim; to wit:
Declaration of Title to a Statutory right of Occupancy over all that
piece or parcel of land situate lying and being at Igbo-Ori-Oke via
Express Road, Ibadan and as shown on Survey Plan No. LL. 9684 dated
22/4/85″.
It is on the foregoing findings of the trial court that the learned
trial judge made a declaration of title to a statutory right of
occupancy over the land in dispute in favour of the appellants.

The Court of Appeal in allowing the appeal by the respondents faulted
this decision of the learned trial court on three main grounds. The
first ground was that the appellants failed to plead or give evidence of
the acquisition of the land in dispute by their grantor. Said the court
below per the leading judgment of Salami, J.C.A. with which Ogwuegbu,
J.C.A. as he then was, and MOHAMMED J.CA., concurred:-
“The parties having so joined issue the respondents had to call
evidence to show how their grantor acquired the parcel of land. The
respondents’ acquisition of the land through grant from Opeagbe cannot
be sustained unless they can show that Opeagbe had good or valid title.

P.16

It is, therefore, necessary for them to adduce evidence of how Opeagbe
divested the original owners of the land of title and how title came to
be vested in them. The respondents neither pleaded nor led evidence
showing or establishing the acquisition by their predecessor’s
grantor”.\

With profound respect to the Court of Appeal, it is grossly incorrect to
suggest that the appellants neither pleaded nor led evidence of the
acquisition of the land in dispute by Opeagbe. This was clearly averred
in paragraph 5 of the Statement of Claim reproduced earlier on in this
judgment. Evidence in respect thereof was also led by the appellants in
proof of the same averment. I think the court below was in definite
error when it faulted the decision of the trial court on that ground.

The second ground upon which the court below allowed the respondents’
appeal was that no member of the Opeagbe family was called to testify on
how the land was first acquired. The court stated thus:-
“The respondents neither pleaded nor led evidence showing or
establishing the acquisition by their predecessor’s grantor. This
evidence whether through conquest or deforestation of virgin land may
probably be within the knowledge of members of Opeagbe’s family who
were never called to testify”. \

I think, with profound respect, that the Court of Appeal, in the first
instance, would appear to have misconceived the appellants’ case before
the trial court. The case for the appellants was never that their
predecessor in title, Opeagbe, was granted the land in dispute by any
body but that he acquired the same by settlement in accordance with
customary law. The appellants did not, therefore, need to plead or lead
evidence to establish any acquisition by their predecessor’s grantor in
respect of the land in dispute as no such grantor as either alleged or
existed. \

In the second place, and again with respect, the court of Appeal would
appear to be in error when it held that in the absence of evidence from
members of the Opeagbe family, the appellants would be unable to
establish the acquisition of the land in dispute by settlement by
Opeagbe through whom they claimed.

In this regard, it ought to be stressed that the requirement of law from
a party to suit is to call relevant evidence in proof of his case and
not that he is bound to call a particular witness if he can prove his
case otherwise. See *Chief Tawalia Bello v. Kassan (1969) N.S.C.C.
288. *

*P.17
*
It is not in dispute from the pleadings in the present case that the
appellants relied on traditional history in proof of the title of their
grantor to the land in dispute and the subsequent customary grant of the
same by Opeagbe to Oroye, their ancestor. Section 45 of the Evidence Act
provides as follows:-
“Where the title to or interest in family or communal land is in issue,
oral evidence of family of communal tradition concerning such title or
interest is relevant”.
It is thus clear that oral evidence of tradition or traditional history
in respect of title or interest in family or communal land is relevant
and therefore admissible in proof of title or interest to such land.
This rule, although without foundation to English common law, has been
described as a convenient and common sense rule under the prevailing
circumstances of this country developed, no doubt, as a result of the
practice of the courts in admitting such evidence. See Law and Practice
Relating to Evidence in Nigeria, 1980 Edition, article 7.04 at page 102.
Expounding on the admissibility of this class of evidence, the West
African Court of Appeal in the Commissioner of Lands v. Kadiri Adagun
(1937) 3 WACA 206 observed as follows:-
“It is the undoubted practice in this country to accept as admissible in
cases as to title to family land evidence of the tradition of the family
ownership. Literacy among the people of this country does not go back
very far, and the oral tradition is generally the only evidence
available as to ownership of land earlier that the memory of living
witnesses. The weight to be given to traditional evidence is of course
another matter, depending on how far it is supported by other evidence
of living people of facts within their knowledge. These facts are
generally regarded as the acid test of the truth of otherwise of the
traditional story. In this case, there was evidence enough. If believed,
to prove that this land in question has been for at any rate, seventy
years in the undisputed possession or control of the Olorogun family as
owners. That fact, if proved, supports the traditional
evidence… In these circumstances I see no reason to hold
that the learned judge was wrong in accepting and believing that
evidence.”\

Attention must also be drawn to the fact that although evidence of
traditional history, as clearly admissible in law as it is, the weight
to be attached to it is quite a different matter. As this was put by de
Comarmond, Ag C.J. Nigeria in *Lajide Akuru v. Olubadan-in-Council
91954) 14 WACA 523.*

P.18

“It need hardly be pointed out that the weight to be attached to
traditional evidence is a matter of which is left to the experience and
wisdom of the (trial) judge’s (word in bracket supplied). \

Reverting now to the present case. It must be conceded that it cannot be
out of place if a member of the Opeagbe family was called to testify on
the traditional evidence in issue. This however, is by no means the only
way of establishing such a historical fact. In my view, evidence of
traditional history in land matters which is nothing short of evidence
of a historical fact transmitted from generation to generation in
respect of a family communal land may, in appropriate cases, be given by
any witnesses who by virtue of their peculiar and special relationship
and circumstances and, before them, their ancestors, with the land
owning family or community, are in a position and knowledgeable enough
to testify on the traditional evidence in question. Such witnesses may
include these who by virtue of the intimate and age-long close
association, interaction and/or relationship form time immemorial
between their family or community and those of the land owners in issue
are clearly knowledgeable and in as good a position, if not even better
than the land owners, to give cogent and relevant traditional evidence
in respect of ownership of such land. Speaking for myself, it would not
matter who testifies to a traditional historical fact, so long as he is
able adequately to satisfy the court on the credibility and reliability
of his means of knowledge together with his suitability and
qualification to testify on the tradition in issue. I find it difficult
to accept the suggestion of the court below that evidence of tradition,
to be acceptable or indeed, admissible, must only be given by members of
the immediate family or community of the land owners. No authority in
support of that proposition has been brought to my knowledge and I
myself have been unable to find one. Speaking for myself, I cannot
accept that proposition as well founded. \

I should perhaps add that without doubt, evidence of tradition may be
more easily established if it comes from members of the family or
community concerned. This does not however mean that all evidence of
traditional history must in all cases and as a matter of law be rejected
or declared inadmissible unless they came from members of the land
owning family or community. I think that traditional evidence, even
where it does not emanate from the immediate members of the family or
community concerned is clearly admissible in land matters under section
45 of the Evidence Act. The weight to be attached to it, however, is
quite a different matter which, as rightly observed in the case
of Lajide Akuru v. Olubadan-in-council, (supra) must be left to the
experience and wisdom of the trial judge.

P.19

The vital issue to be borne in mind at all times is that evidence of
traditional history, particularly where there is a conflict of the same
between the parties to a dispute is not assessed from the demeanour
credibility of the witnesses. It must be tested by other evidence of
recent facts established by evidence. See Kojo II v. Bonsie (Supra). \

In fairness to learned counsel for the respondent, it does appear from
the respondent’s brief of argument that he conceded it cannot be right
to state as the court below did, that evidence of traditional history as
to how the appellants’ grantor acquired the land in dispute must
necessary come from members of the Opeagbe family to be admissible or
acceptable. His position was made clear in paragraph 7.04 of the
respondents’ brief of argument where it was stated as follow:-
“7.04 Opeagbe cannot compel a litigant to call a particular witness,
but surely if Opeagbe had settled on that land before granting the land
to Oroye. I submit that evidence ought to have been called from
descendants of Opeagbe or co-warriors of Opeagbe or other war
lieutenants of Opeaagbe who know or had heard about such settlement to
give evidence.”
I agree entirely with the above submission of learned counsel and
entertain no doubt that proof of the traditional history as to how
Opeagbe first acquire the land in dispute may rightly come from the
descendants of Opeagbe, from those of his co-warriors or from those of
other war lieutenants who know and are in position to give satisfactory
evidence to that effect. \

In the present case it is not in dispute that the appellants are the
descendants of Oroye who at all material was co-warrior and lieutenant
of the said Opeagbe during the latter’s exploits. Both warriors,
Opeagbe and Oroye, at all material times fought together over the ages
in their joint exploits. In my view, the descendants of Oroye, that is
to say, the appellants, are in as good a position as those of Opeagbe to
give evidence of traditional history on the issue of the acquisition of
the land by first settlement by Opeagbe. I think the trial court was
right in accepting the traditional evidence of the appellants on the
point, particularly when this evidence was hardly seriously challenged
under cross-examination. This traditional evidence, subjected to the
prescribed acid test, was found to be fully consistent with the recent
facts established by evidence before the trial court.

P.20

These recent facts include evidence which was accepted by the trial
court that the land in dispute had for a period of over 150 years from
the time Opeagbe granted the same to Oroye been in the undisputed
possession and control of the appellants as owners thereof. This fact
along leads full support of the traditional evidence in issue. But there
are additionally Exhibits F and J which were admissible in evidence in
proof of the appellants’ acts of possession in respect of the land in
dispute. They, too, copiously support the traditional evidence in issue.
In the face of all the above circumstances, I can find no reason to
fault the trial court in accepting the appellants’ evidence of
traditional history as established. \

It is now recognized that the fact of first settlement upon land seems
to be one of the oldest methods of acquiring title to land. As I have
already observed if traditional evidence, and this includes evidence of
first settlement, is satisfactorily placed before the court and is
accepted, title to the land can be declared on such evidence of
tradition alone. See Chief Odofin v. Ayoola (1984) 11 SC 72 at 144 where
this court per Oputa, J.S.C. put the matter as follows:-
“First settlement seems to be the oldest methods of acquiring title to
land. If the traditional evidence of such first settlement is accepted,
title can be declared purely on such traditional evidence.”
See too stool of Abinabina v. Chief Kojo Enyimadu 12 WACA 171 at 174
(P.C.), Oluyole v. Olofa (1968) NMLR 162 etc. and I ask myself what the
original acquisition of land by settlement under customary law really
means? This, in my view, means no more than first occupation or original
settlement and land for whatever purpose. In the present case, the
learned trial judge was satisfied with and accepted the appellant’s
evidence on acquisition by first settlement on the land in dispute by
Opeagbe. He was also satisfied that Opeagbe on the evidence before him,
granted the same land under customary law to Oroye. \

I think the learned trial judge was entitled on these findings which are
fully supported by the evidence before the court to make an award to
title to land in dispute in favour of the appellants. It is an
elementary principle of law that an appellate court will not ordinarily
interfere with the findings of fact made by the trial court which are
supported by evidence except in circumstances such as where the trial
court has not made a proper use of the opportunity of seeing and hearing
the witnesses at the trial or where it has drawn wrong conclusions from
accepted credible evidence or has taken an erroneous view of the
evidence or the findings of fact are perverse in the sense that they do
not flow from the evidence accepted by it. See Woluchem v. Guidi (1981)
5 SC 291 at 295 and 326; Okpiri v. Jonah (1961) 1 All N.L.R. 102 at 104,
(1961) 1 SCNLR 174 etc.

P.21

None of the circumstances enumerated above exists in the present case to
warrant any interference by the Court of Appeal of the said findings of
the trial court. I think the court below, with respect, was in grave
error, when it disturbed these findings of the trial court on basis
which, in my view, are entirely groundless. \

Turning now to issue I which deals with the admissibility of the
document, Exhibit A and upon which the court below heavily relied in
allowing the respondents’ appeal, it will be necessary to determine
whether that issue was competently before that court. In this regard, 12
grounds of appeal were filed by the respondents, as appellants in that
court, against the decision of the court below. The appellants, as
respondents, in that court filed no cross-appeal.
The twelve complaints raised by the appellants before the court below in
their grounds of appeal, without their particulars, are as follows:- \

1. The learned trial Judge erred in law and on the facts in giving
   judgment for the plaintiffs for a Declaration for Statutory Right of
   Occupancy in respect of the land in dispute, when the plaintiffs failed
   to prove grant from Opeagbe, which as the source of their title. \
2. The learned trial judge having agreed that the judgment in Exhibit
   ‘F’ and ‘J’ are res inter alios acta as far as Alesinloye family is
   concerned, erred in law in holding in this case, that:
   (i) the original owner of the land in dispute was Opeagbe;
   (ii) Opeagbe granted the land in dispute to Oroye, and
   (iii) the Oroye family are in possession\
3. The learned trial judge erred in law formulating wrong issue for
   himself to determine the case by saying, “who granted the land in
   dispute to the plaintiffs’ Oroye family? Is it Opeagbe or Alesinloye
   family?”\
4. The learned trial judge erred in law in relying on the contents of
   Exhibits ‘A’ as proof of the facts stated therein, and using same as
   binding on Alesinloye family. \
5. The learned trial judge erred in law in rejecting evidence of
   grant by Alesinloye family to Balarojowu and Abidikugu, when the
   plaintiffs did not join issue with the Defendants on the point and the
   evidence led in support thereof was uncontradicted;

P.22

6. The learned trial Judge erred in law and on the fact in rejecting
   the evidence led for the 1st to 5th Defendants that sometime ago, the
   3rd DW. Rafatu Akinjobi, extracted gravel from the land in dispute, when
   the evidence and probabilities in the case was to that effect. \
7. The learned trial Judge erred in law and on the facts holding that
   the contents of Exhibits ‘N’ support the contention that Alesinloye
   family did not know the land in dispute or, in the alternative, the
   extent of their land in that area; \
8. The learned trial Judge erred in law and on facts in believing the
   plaintiffs that they made a layout of the land in dispute in 1977 and
   incurred expenses of N11,600.00 and therefore awarded N11,600.00 special
   damages against the defendants, when on the evidence in the case, the
   claim ought to be rejected. \
9. The learned trial Judge erred in law and on the facts in holding
   that the Defendant on their plan Exhibit ‘Q’, did not know the extent
   of the land of their alleged grantee. Akano family, and that there is no
   land between Oroye family land that is, the land in dispute and Akano
   family land; \
10. The learned trial Judge erred in law in failing to consider the
    case of the land defence adequately in that this judge merely
    highlighted the weaknesses in the defence case, while he did not
    consider the weaknesses in the plaintiffs’ case. \
11. The judgment is against the weight of evidence. \
12. The Court erred in law in awarding N3,000.00 costs which in the
    circumstances of this case is excessive and against the Defendants. \

A close study of the above grounds of appeal discloses in the clearest
possible terms that not one of them raised any question concerning the
admissibility of the document, Exhibit ‘A’. The only ground that dealt
with Exhibit A is ground 4 which, however, did not question its
admissibility in evidence but was merely concerned with the weight
attached to its contents by the trial Court. \

It is instructive to observe that the said respondents, as appellants in
the Court below, raised 9 issues from their ground of appeal for the
determination of the court below. These issues were formulated thus:\

“(i) Whether the issue formulated by the court was proper,
(ii) Whether the plaintiffs proved grant as pleaded notwithstanding the
findings in Exhibits ‘F’ and ‘J’.
(iii) Whether the Alesinloye family were estopped by the contents of
Exhibit ‘A’.

P.23

(iv) Whether the court could reject the evidence of grant by
Alesinloye to Abidikugu and Balarojowu.
(v) Whether the trial court rejects the evidence of extraction of
gravel on the land in dispute adduced for the Defendant.
(vi) Whether the contents of Exhibit ‘N’ support the contention that
the defendant did not known the land in dispute or the extent of their
land in the area.
(vii) Whether the court ought to have awarded N16,000.00 special damages
N400 general damages and N3,000.00 costs in the circumstances of this
case.
(viii) Whether the case of the defence was adequately considered and
whether the case was against the weight of evidence. \

It seems to me clear that not one of the above issues concerned the
admissibility of Exhibit A in evidence. However, notwithstanding the
fact that neither in the respondents grounds of appeal nor in the issues
formatted by them before the court below did they question the
admissibility of Exhibit A, the Court of Appeal devoted more than half
of its judgment to a consideration of this issue. In the final result,
the court declared the document inadmissible in evidence and accordingly
expunged it from the records. With profound respect of the Court of
Appeal, it was grossly in error to have adopted this course of procedure
and as a result of which it was able to allow the respondents’ appeal
before it. \

This is because, in the first parties in court of pleadings that
judgment must be confined to the issues raised by such parties. It is
not competent for a court suo motu to make a case for either or both of
the parties and then proceed to give judgment on the case so formulated
contrary to the case of the parties before it. See Commissioner for
works, Benue State v. Devcon Development Consultants Ltd. And another
(1988) 3 NWLR (Pt.83) 407, Nigerian Housing Development Society Ltd. v.
Yaya Mumuni (1977) 2 SC 57, Adeniji and others v. Adeniji and others
(1972) 1 All NLR (Pt.298). In particular, it should be plain to an
appellate court that when an issue is not placed before it, it has no
business whatsoever to deal with it. See too *Florence Olusanya v.
Olufemi Olusanya (1983)3 SC at 56 – 57, (1983) 1 SCNLR 134. * \

P.24

In the second place, an appellate court can only hear and decide on
issues raised on the grounds of appeal filed before it and an issue not
covered by any of the grounds of appeal is incompetent and will be
struck out. See *Management Enterprises v. Otusanya (1987) 2 NWLR
(Pt.55) 179.
*
In the third place, it is wrong to found a decision of a court of law on
any ground in respect of which it has neither received argument from or
on behalf of the parties before it nor even raised by or for the parties
or either of them. See *Shitta Bay v. Federal Public Service Commission
(1981) 1 SC 40, Saude v. Abdullahi (1989) 7 SCNJ 216, (1989) 4 NWLR
(Pt.116) 387; Chief Ebba v. Chief Ogodo and another (1984) 4 SC 817 at
112, (1984) 1 SCNLR 372. *
*
In the fourth place, even when a court raises a point suo motu, the
parties must be given an opportunity to be heard on the point,
particularly the party that may suffer a loss as a result of the point
raised suo motu. See *Odiase v. Agbo (1972) 1 All NLR (Pt.1) 170, Ajao
v. Ashiru (1973) 11 sc 23, Atanda v. Lakanmi (1974) 3 SC 109, Adegoke v.
Adibi (1992) 5 NWLR (Pt.242) 410 at 420. *
*
In present case, the court of Appeal, quite wrongly, waded into the
arena of the dispute between the parties and formulated in issue on the
admissibility of Exhibit A an issue not raised by either of the parties,
declared the document inadmissible in evidence and proceeded to expunge
it from the records. Worse still is the fact that the said court below,
again quite in error, raised the said issue notwithstanding the fact
that it was covered by any of the grounds of appeal filed by the
respondents, as appellants in that court, before it. Finally, although
that court raised the said issue suo motu in its judgment mainly on the
point, if failed to give the parties any opportunity whatsoever to be
heard on the point so raised suo motu by it. It is plain to me that each
and every one of the foregoing procedure adopted by the Court of Appeal
in the determination of this appeal constituted serious errors of law
which clearly occasioned a miscarriage of justice and cannot be allowed
to stand. In my view, the issue as to the admissibility of Exhibit A
upon which the court below heavily relied in allowing the appeal before
it is incompetent and is hereby struck out.
There is next the question of whether the court below was right in law
in that having expunged Exhibit A from the record of proceedings, it
held without any sufficient consideration of other relevant and material
oral evidence on record that the appellants did not prove the grant of
the land in dispute by Opeagbe to their ancestor.

P.25

I have earlier on in this judgment dealt with the oral evidence of the
appellants in support of their claims apart from the documentary
evidence. Exhibit A, I did come to the conclusion that upon such oral
evidence alone, the trial court was entitled to enter judgment for the
appellants and that it was an error in law for the Court of Appeal to
interfere with the findings of the trial court from this oral
evidence. \

I think I ought to observe that although the court below attached the
admissions against interest made by Ladejo Adeleke Adesinloye as a
representative of the respondents in the said Exhibit A, I find it
unnecessary in this judgment to wade into whether or not those
admissions constituted legal evidence before the trial court. The same
goes with the evidence and judgments in Exhibit F and J. This is
because, apart from the admissions in Exhibit A and the findings in
Exhibit F and J, there is ample oral evidence on record to sustain the
judgment of the learned trial judge. In the circumstances, a
consideration of such an issue may, to some extent, be regarded as
academic.

The law is firmly settled that where a question before the court is
entirely academic, speculative or hypothetical, the appellate court in
accordance with the well established principle of this court must
decline to decide the point. See Nkwoacha v. Governor of Anambra State
(1984) 6 SC 362, (1984) 1 SCNLR 634; Governor of Kaduna State v. Dada
(1986) 4 NWLR (Pt.38) 687, Richard Ezeanya & ors. v. Gabriel Okeke and
others (1995) 4 NWLR (Pt. 388) 142, I will therefore decline to go into
the questions of whether the admissions in Exhibit A constitute legal
evidence and whether the findings in Exhibit F and J operate as estoppel
against the respondents.
I should, however, add that even if I were able to find that the
admissions in Exhibit A and the findings in Exhibit F and J ought to
have been accepted by the trial court as additional reasons for granting
the appellants’ claims, and I do not so hold, I still would have
sustained the judgment of the trial court. This is because, it is not
every mistake or error in a judgment that will result in an appeal being
allowed. It is only where the error is substantial in that it has
occasioned a miscarriage of justice that the appellant court is bound to
interfere. See Onajobi v. Olanipekun (1985) 4 SC (Pt. 2) 156 at 163;
Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 at 282; Azuetonwa Ike v.
Ugboaja (1993) 6 NWLR (Pt. 301) 539 Abiodun Amaroti v. Madam Agbeke
(1991) 6 SCNJ 64.

*P.26

In the same vein, wrongful admission of evidence shall not of itself
constitute a ground for the reversal of a judgment where it appears on
appeal that such evidence cannot reasonably be held to have affected the
decision and that such decision would have been the same if such
evidence had not been admitted. See *Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.
72) 616 at 630, Umeojiako v. Ezenamuo (1990) 2 NWLR (Pt. 126) 253 at
270, Monier Construction Co. Ld. V. Azubuike (1990) 3 NWLR (Pt. 126) 253
at 270, Monier Construction Co. Ltd. v. Azubuike (1990) 3 NWLR (Pt. 136)
74 at 88 and Idundun v. Daniel Okumagba (1976) 9 – 10 SC 227. *
*
Apart from the admission and findings in Exhibit A.F, and J, there is
abundant oral evidence which the trial court accepted and which
conclusively established the appellants’ claims. It cannot, therefore,
be suggested that without the admissions and findings in question, the
decision of the trial judge would have been otherwise, in my view, even
if the acceptance of the admissions and findings in issue were to be
wrongful, and I do not so hold, no miscarriage of justice was thereby
occasioned as this could not be said to have reasonably affected the
decision of the court. \

There was finally the submission of learned counsel for the respondents
that Exhibit F and J constituted res inter alios acta and that they
could not, therefore, be sued to sustain the plea of estoppel. Without
doubt, proceeding in a former action between one party to a present
action and a stranger is generally inadmissible in evidence.
See Owonyin v. Omotosho (1961) 1 All NLR (Pt.2) 304, (1961) 2 SCNLR
57. It should however be mentioned that previous judgments not inter
partes, such as Exhibits F and J, are clearly admissible in evidence in
proof of acts of possession which constituted a part of the appellants’
case in this action. See Alabia II v. Ohene Akyin 2 WACA 380. So, too,
even where a proceedings is res inter alios acta, it can still operate
as estoppel by conduct or standing by if there is cogent and accepted
evidence, as in the present case, that the parties knew of the previous
battle but stood by and failed to intervene. See Ndukwe Okafor and
others v. Agwu Obiwo (1978) 10 SC 115. But as I have already observed,
there are other ample evidence in this case upon which the appellants’
claims are easily sustainable I need not therefore dwell at length with
the said Exhibit F and J. \

P.27

On the question of the award of damages and perpetual injunction, there
can be no doubt that there is ample evidence on record to sustain the
judgment of the trial court on both issues. It is the finding of the
learned trial judge that the appellants at all material times were the
owners in possession of the land in dispute when the respondents
unlawfully went on the land bulldozed it and destroyed both the
appellants’ economic crops and beacons thereon. That court was also
satisfied from the totality of the evidence adduced before it that an
order for perpetual injunction should be made against the respondent,
their agents and/or servants. I can find no reason on the part of the
court below for interfering with the above findings if the trail court
and the awards made thereupon and the same are hereby affirmed.

Two conclusions I therefore reach that all five issues formulated by the
appellants in this appeal must be and are hereby resolved against the
respondents. The judgment and orders of the court below are set aside
and those of the trial court are hereby restored. There will be costs to
the appellants against the respondents which I assess and fix at
N10,000.00 in this court and |N1,000.00 in the court below.