ARIBISALA v. BELLO

CITATION: (2016) LPELR-40145(CA)

In the Court of AppealIn the Akure Judicial Division

Holden at Akure

ON FRIDAY, 19TH FEBRUARY, 2016Suit No: CA/AK/103/2013

Before Their Lordships:

MOJEED ADEKUNLE OWOADE Justice, Court of AppealMOHAMMED AMBI-USI DANJUMA Justice, Court of AppealJAMES SHEHU ABIRIYI Justice, Court of Appeal

BetweenCHIEF SAMUEL KASALI ARIBISALA(For Himself and other members of his family of OdoQuarters, Arigidi-Akoko)

- Appellant(s)

AndMR. AMINU BELLO(For Himself and other members of Jagele FamilyAgbaluku, Arigidi-Akoko)

- Respondent(s)

RATIO DECIDENDI

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1 LAND LAW - OWNERSHIP OF LAND:What a claimant must establish in a claimof ownership of land based on partition"...the Respondent satisfied theexpressed in the case of Olorunfemi V.Asho (2000) 1 SC 1 at 15 that it is settledlaw that to succeed in a c la im ofownership of land based on partition,evidence of how and when the saidexercise in partition was executed mustnaturally be established."Per OWOADE,J.C.A. (P. 20, Paras. A-B) - read in context

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2 LAND LAW - TRADITIONAL HISTORY :When will it be necessary to tracetraditional history in a land matter"Indeed, where in a land matter as in theinstant case, the dispute between theparties is as to what features marks theboundary between them, there is noreason for tracing traditional histories. Aparty needs to trace such history onlywhere his link to the disputed land is incontest or where he has to prove his rootof title.See Prince Will V. Amachree(2005) 3 NWLR (Pt. 912) 358."PerOWOADE, J.C.A. (P. 20, Paras. C-D) - readin context

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3 EVIDENCE - EVALUATION OFEVIDENCE: Whether evaluation ofevidence and ascription of probativevalue is a primary function of the trialCourt"The evaluation of evidence and theascription of probative value to suchevidence are the primary functions of atrial Court which saw, heard and dulyassessed the witnesses."Per OWOADE,J.C.A. (P. 24, Paras. D-E) - read in context

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4 APPEAL - INTERFRENCE WITHEVALUATION OF EVIDENCE: Instancewhere an appellate Court cannot interferewith a trial Court's evaluation of evidence"Where a Court of trial as in the instantcase, unquestionably evaluates theevidence and justifiably appraises thefacts, what the Court of Appeal ought todo is to find out whether there isevidence on Record on which the trialCourt have acted. Once there is sufficientevidence on record from which the trialCourt arrived at its finding of fact, theAppellate Court cannot interfere.See: Chief J. Okeowo V. Attorney Generalof Ogun State (2010) 5 - 7 SC (Pt. 11)129; Military Governor of Lagos State & 4ors V. Adebayo Adeyiga & 6 ors (2012) 2SC (Pt. 1) 68; Osuji V. Ekeocha (2009) 6 -7 SC (Pt. 11) 91; Cyriacus Nnadosie & 3ors V. Nze Ogbunelu Umagwu (2008) 1SCNL 219; O yibo Irir i & Others V.Eseroraye Erurhodare & Anor (1991) 3SCNJ 1."Per OWOADE, J.C.A. (Pp. 24-25,Paras. F-C) - read in context

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5 JUDGMENT AND ORDER - ORDER OFCOURT: Whether orders of Court arebinding on non-parties to the action"Indeed, orders of Court in an action arenot binding on non-parties to the action.Pelfaco Ltd V. WA. O.S. Ltd (1997) 10NWLR (Pt. 524) 222. The general rule oflaw is that no person is to be adverselyaffected by a judgment in an action towhich he was not a party, because of theinjustice in deciding an issue against him.See Tunde Osunrinde & 7 Ors V. MutairuTogun Ajamogun & 5 Ors (1992) SCNJ 79;National Union of Road Transport Workers& Anor V. Road Transport EmployersAssociation of Nigeria and 5 Ors (2012) 1SC (Pt. 11) 119."Per OWOADE, J.C.A. (P.27, Paras. C-F) - read in context(2

016)

LPELR

-4014

5(CA)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering theLeading Judgment):This is an appeal against the decision of the High Court ofOndo State sitting at Ikare-Akoko delivered by N. S.Adeyanju, J. on 8th day of April, 2013.

The Respondent as Plaintiff in the Court below took out aWrit of Summons against the Appellant as Defendant on4/2/2009. By paragraph 19 of the Respondent's statementof claim dated 24/3/2009 and filed on 26/3/2009, theRespondent claimed as follows:"��(1) An order of Court partitioning Odo Farmland,Agbaluku, Arigidi-Akoko, Ondo State of Nigeria into"IPAWO" Farmland and "IKODE" Farmland betweenthe Plaintiff and the defendants respectively.(2) An order of Court restraining the Defendants fromfurther selling any parts of Odo Farmland withoutconsent or permission of the Plaintiffs."

The Appellant as Defendant in his statement of defence andcounter-claim of 6-6-2009 counter-claimed against theRespondent in paragraph 23 of the statement of Defencethus:"��23 - Wherefore, the counter-claimant counter asfollows.(1) A Declaration that neither the Plaintiff alone norhis Lemamu

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Bello branch of Ayijen or Olodo family can deal with

the Ayijen family or Olodo familu land or any part

therof without the consent and authority of the

counter claimant who is the head of the Ayijen or

Olodo family. Odo, Agbaluku Quarters, Arigidi-Akoko.

(2) An order of Court declaring as void all the sales or

alienation of land by the Plaintiff of the Ayijen family

or Olodo family land so far made.

(3) An order of injunction restraining the Plaintiff

either by himself or any member of his Lemamu Bello

branch of Ayijen family from further sales or

alienation of the Ayijen or Olodo family land.

(4) A sum of N3,000,000 (Three Million Naira as

General Damage for the illegal alienation or sales of

the family land."

The Respondent filed a Reply to statement of Defence and

counter claim dated 17/5/2010 but filed on 10/6/2010.

From the pleadings and evidence, the case of the

Respondent is that the land in dispute is called Ipawo land.

It was owned by the father of the Plaintiff. The land of the

Defendant is called Ikode land. The Defendant has no land

in Ipawo. Ihawaja land separates Ipawo and Ikode lands.

Both parties jointly cultivate

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Ihawaja land.

Jagele was Plaintiff's grandfather who came from Ile-Ife

with Aribisala and settled at Ahamo bush (Igbo Ahamo) and

they are still at Ahamo till today. Plaintiff's town is

Agbaluku. The Defendants are also at Agbaluku. Jagele, a

Muslim who brought Aribisala from Ile-Ife was senior

brother of Aribisala and was an Olodo. The Defendant is the

present Olodo. Aribisala was Defendant's grandfather.

Odo family is made up of two units and not thirteen. When

money, meat and other items are being shared, they are

shared into two parts. Example, was when the king died

and another was to be installed, both parties paid

N2,500.00 each. The sum of N20,000.00 whish was the

allowance of those in charge of farmland was shared

between the Plaintiff and Defendant and each paid

N10,000.00 one Odudu collected the first money. The

Plaintiff is hearing of thirteen families for the first time in

Court.

The boundaries of the land in dispute are Baba Obadayi,

Oshodi from Ijasa family and Ikode. The Plaintiff sued

because the Defendant is selling Ipawo land to persons

whose names the Plaintiff cannot remember because they

are many.

The case of the

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Respondent is that the Plaintiff's father was known as Ibete

Bello or Lemamu Bello. Abiki Ijala was the father of Ibete.

Jagele who was a warrior brought Aboki Ijala from Iyere to

Agbaluku Arigidi and settled him at Ijala family land called

Oson Lemamu. Ibete was the person that planted the

cherry (Oson) tree on Ijasa land after which the settlement

of Aboki Ijala's descendants was named. Abiki Ijala's

descendants are no longer on Ijasa family land having been

ejected by the Ijasa family.

The Defendants are descendants of Jagele. The Plaintiffs

are not. The family of the Defendants is known as Ayijen or

Odo family and Olodo of Odo is the head of that family. The

Defendant is the current Olodo of Odo.

Lemamu (Ibete) Bello was never an Olodo of Odo and has

never been head of family.

There are thirteen branches of Ayijen Odo family, they are:

Aribisala, Alade, Ayeba, Fatoki, Amuleya, Orowa, Ajulo,

Jinadu, Ogunleye, Oyeleye, Oula, Daramola, and Bello. It is

not true that there are only two branches.

The boundaries of Ayijen/Odo family land at Agbaluku

Arigidi are Ede/Gbadayi family land, Ugbe Community and

Ijasa family.

To prove his case

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and in defence of the counter claim the Respondent

(Plaintiff) testified on his own behalf and called three (3)

witnesses. In defence and proof of his counter claim, the

Appellant (Defendant) also testified on his own behalf and

called five (5) witnesses. The judgment of the learned trial

judge is contained at pages 101 - 125 of the record of

appeal.

The learned trial Judge held inter alia at page 116 of the

record that:

"On the balance of probability, I prefer and believe

the more probable evidence of the Plaintiff that his

grandfather was called Jagele and not Aboki Ijala,

that Jagele came from Ile-Ife with Aribisala the

grandfather of the Defendant and that they both

settled on Odo family land,"

At page 123 of the record, the learned trial judge held that

the Plaintiff succeeds in part and ordered (i) that Odo

farmland otherwise known as Ayijen family farmland be

partitioned into Opawo and Ikode. Ipawo being for the

Plaintiff while Ikode is for the Defendant. (ii) the Defendant

is restrained from selling any part of Ipawo farmland

without the consent or permission of the Plaintiff.

Also at pages 124 - 125 of the record, the learned trial

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Judge restrained the Plaintiff and his Lemamu Bello branch

of Ajiyen/Odo family from any sale of Ikode farmland which

is in possession of the Defendant but refused all other

prayers in the Defendant's Appellant's counter claim.

The Appellant filed a Notice of Appeal into this Court with

eight grounds of appeal on 17th June 2013 which was later

amended by adding additional two grounds of appeal

bringing the grounds of appeal to ten.

The relevant briefs of argument for this appeal are:

(i) Appellant's brief of argument dated 4/9/2013 and

filed on 11/9/2013 but deemed filed on 22/10/2015 -

Settled by Mallam Gani Asiru.

(ii) Respondent's brief of argument dated 13/10/2015

and filed on 14/10/2015 but deemed filed on

22/10/2015 - Settled by D. D. Adejumola, Esq.

(iii) Appellant's Reply brief dated and filed on

13/1/2016 and deemed filed on 21/1/2016 - Settled by

Adonis Oladuro.

Learned Counsel for the Appellant submitted three (3)

issues for determination. They are:

(i) Whether the learned trial Judge was right in the

light of the pleadings and evidence on records to have

partitioned the land into Ipawo and Ikode between

the

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Respondent and Appellant respectively, Grounds 2, 6,

7, 8, 9 and 10.

(ii) Whether the learned trial Judge was right in

holding that there are two and not thirteen branches

for Ayijen/Odo family.

(iii) Whether the learned trial Judge was right in

dismissing the counter-claim of the Appellant.

Grounds 3, 5 and 8

Learned Counsel for the Respondent on the other hand

nominated a sole issue for determination, to wit:

"Whether the learned trial Judge is not in every respect

correct and right when having evaluated evidence found

judgment in favour of the Plaintiff considering the fact(s),

nature and circumstance(s) of this case."

Learned Counsel to the Appellant argued issues 1 and 2

together and submitted that it is settled law that a Plaintiff

is to succeed on the strength of his own case and not on the

weakness of the defence. He referred to the cases of

Ogunnuhu & Ors V. Chigbuka (2013) 3 SCM 145, 146

and Ohakanu V. Ntemagu (2002) 33 WRN 30 at 35.

He submitted that going by the state of pleadings and

admissible evidence on records, it is clear that the

Respondent has not been able to establish his claim. That

the claim put

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forward by the Respondent before the trial Court is that of

partitioning of the land into two. But that the case he put

forward by his pleading is not in accordance with evidence

he gave at the trial and also the facts pleaded is not in line

with the reliefs sought from the Court. For instance his

claim is for the partitioning of the land into two between

himself and the Defendant. However, that, the facts he

based this on is that of first settlement on the land.

In his statement of claim, he averred that Jagele his

ancestor came to settle at Igbo Ahamo and later came to

Ipawo when Aribisala the ancestor of the Appellant was

already at Ikode.

Counsel submitted that the case the Respondent put

forward by his pleading at best is that of declaration of

title. That he was averring the issue of first settlement and

that right from the beginning the two portions were

separately occupied by Jagele and Aribisala respectively.

He submitted that there was nowhere in the Respondent's

pleadings and or evidence in which he stated when the two

portions of land became one and how both of them became

joint family properties. This, according to Counsel is

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because in a case of partition, the Claimant has to prove

how the land became their family land. The Respondent,

said Counsel has to rely on the averments in his pleading

and should not make out a different case at the hearing.

He referred to the case of Ajide V. Kelani (1985) 3

NWLR (Pt. 12) 248 at 269 and submitted further that the

Plaintiff is bound by the case he put forward. That once an

issue is joined between the parties, the Court is bound to

adjudicate between the parties on the issues formulated by

them.

Appellant's Counsel referred to numerous case law

authorities to emphasize the role of pleadings in civil

litigation. They include the cases of Liman V. Muhammed

(1999) 9 NWLR (Pt. 617) 116 at 137; Morinatu Oduka

and others V. Kasumu and others (1968) NMLR 28,

31; Adesoji-Aderemi V. Johnson Adedire (1966) NMLR

398; Adimora V. Ajolo and others (1988) 8 NWLR 1;

Makwe V. Nwuko (2001) 10 SCM 63 at 77; Ogunnuhu

& Ors V. Chiegbuka (2013) 3 SCM 146; Olubodun &

Ors V. Lawal & Anor. (2008) 10 SCM 175 at 191.

Appellant's Counsel submitted further that by paragraph 3

of the statement of claim, the Respondent averred that

Ihawaja was

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cultivated by Jagele and his brother Osere. However, that

in his evidence in chief at page 58 of the record, he stated

that:

"The land in dispute is called Ipawo. It is the only

land. My father owned Ipawo land. The land of the

Defendant is called Ikode. He has no land in Ipawo. I

sued the Defendant because they entered onto my

land. A third piece of land called Ihawaja separates

our land and that of the Defendant. Both Plaintiff and

Defendant jointly cultivate Ihawaja land."

Appellant's Counsel referred to the cases of Olaiya v.

Olaiya (2002) 22 WRN 94 and Okhuaroho v. Aigbe

(2002) 31 WRN 30 at 34 and submitted that the above

piece of evidence is at variance with pleadings and that the

point was enough for the Respondent's case.

Appellant's Counsel faulted the evidence of PW2, Sunday

Momodu alias Odudu who testified that he collected

moneys separately and by the branches on the occasion of

the funeral ceremony of the current king. He argued that

PW2 was neither a chief in the community or a

secretary/officer in the community. He submitted that DW3

who the learned trial Judge found to be a brother of PW2

from the same Ijasa family was more

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credible than PW2.

He urged us to disregard the evidence of PW2 as a reliable

one upon which a conclusion can be drawn that the families

has two branches.

He submitted further that the learned trial Judge erred in

placing reliance on the answer given by the DW2 as to the

fact that one Osunla is a stranger within the family as one

of the contradictions he claimed in the evidence of the

Appellant overlooking the explanation of DW4 at page 81 of

the records that there are two Osunlas, one a stranger and

that the one who is a stranger had left.

He submitted that the learned trial Judge was in error by

describing the above as a contradiction to fault the case for

thirteen branches. And, that it is only when a contradiction

cannot be explained that the Court will use it as a yardstick

for the rejection of the party's case.

Counsel referred to the cases of Odi V. Iyalla 27 WRN 1

at 5 and Aguncha V. Aguncha (2004) 43 WRN 17 at 22

and submitted that the evidence of the Respondent and

those of his witnesses are full of contradictions and

inconsistencies which the Court cannot pick and choose

going by the law.

Counsel submitted that even if the

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learned trial Judge were right to have partitioned any land

at all it is only Ipawo which he ought to order partition of.

That from the evidence of the Respondent himself, he

admitted that the one occupied by Ijasa were jointly owned

by Ijasa and Ayijen or Odo and that all members of

Ajiyen/Odo family fought the battle with Ijasa before

partitioning the land for them. That the land in dispute then

includes Ipawo. This, according to Counsel goes to refute

the claim that the Respondent has been in possession of the

land (Ipawo or Idaho) since their arrival from Ife.

He urged us to re-evaluate the evidence in the case and

ascribe probative value.

In response to Appellant's issues one and two, Learned

Counsel for the Respondent reminded us that it is evident

on the Respondent's Writ of Summons that the partition

sought is not in the nature of sharing a joint holding into

two but rather that which is to retain parties on their

"initial strand at inception", as it was in the good old

days of the parties forefathers.

That from the evidence before the Court, parties know the

extent of their individual family holding on the said land

before the

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Appellant started trespassing.

Counsel submitted that the Respondent averred in his

statement of claim that:

“...Ipawo has always been cultivated by descendents

of Jagele while Ikode is usually cultivated by

descendants of Aribala."

That this averment was reiterated by the Respondent in his

evidence-in-chief at page 58 of the records and was not

faulted on cross-examination.

He submitted that the only attempt to controvert same was

in a general traverse in paragraph 6 of the statement of

defence coupled with the Appellant's position under cross

examination that:

"I know Ipawo farmland. It is true that the Defence

now own Ikode farmland exclusively." (Pages 74 - 75 of

records).

The claim before the Court, according to Respondent's

Counsel is more of an emphatic pronouncement on the -

already partitioned land (Ipawa) in possession and

exclusive ownership of the Respondent. He submitted that

the substance of the Respondent's claims could be found in

paragraphs 4b, 4b, 4c, 4d, 5 and 7 of the statement of

claim.

Counsel submitted that the evidence of the Respondent as

PW1 that Jagele was his grandfather who came from Ile-Ife

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with Aribisala. That Aribisala, the grandfather of the

Appellant was brought to the land by Jayele and are

members of the same Odo or Ayijen family was correlated

by PW3.

That in contrast the Appellant's material inconsistencies.

For example, that DW3 said it is not true that the

Defendant's family settled at Ikode farmland contrary to the

DW1's evidence in chief that the Defendant now own Ikode

exclusively. That the Appellant on his own told the Court

that he knows the point called Ikode on his family land and

that Aribisala (his family) controls Ikode portion of the

family land where he also has his farm.

Counsel submitted that DW4 is one breath said that it is not

true that the family of the Respondent is the one farming

and building houses on Ipawo farmland. But, that in

another breath, he (DW4) said the house of the Respondent

is at Ipawo. He submitted that DWs at page 84 of the

records said that the Appellant and his people farmed at

Ikogbe. That the Respondent and his people live and farm

at Ipao. They do not come to Ikogbe. "Plaintiff has his

house at Ipao", Respondent's Counsel repeated the

evidence of the Appellant at page 90 of the record

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under cross examination that:

"The Plaintiff and his brothers have their house in

Ipao farmland. Ikode farmland is part of my family

land. It is true that I am using Ikode farmland

exclusively for myself."

He submitted that the above lends credence to the

Respondent's case.

He submitted further that the Respondent maintained that

there are two families constituting the entire Jagele family

of Agbaluku Arigidi Akoko where the Appellant's family also

originated. That the Respondent called witnesses who gave

evidence in that regard particularly how the land in dispute

had in time immemorial been named Ipawo and Ikode with

a common boundary at Ihawaja. For example that the

evidence of DW2 is to the effect that he takes contributions

in equal half whenever occasion demands from both

families that were one from the onset.

The burden placed on the Respondent according to Counsel

was well too discharged consequent upon which the onus

shifted to the Appellant at the point where he said there are

thirteen families forming the branch from a common

ancestral origin. That the Appellant called witnesses who

testified inconsistently to the existence of

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this fact. In particular is DW1 who could not mention the

names of the thirteen families.

Counsel submitted that the Appellant and his witnesses

contradicted themselves on how and from where Jagele

brought Aboki Ijala to Ijasa land. While one said it was from

Ayere, the other said it was from Ogidi in kwara State.

Also that while some claimed that Oluya came from Ile-Ife

alone, others claimed that twelve branches of Olodo Ajiyan

family came from Ile-Ife together while the thirteen later

joined them.

He submitted that the Appellant's assertions remained but

was without cogent proof. First, he said, is the failure to

state the chain of succession from one ancestor to the other

and second is the failure to state how they farmed on either

the Ipawo land or the Ikode land. That at one point, DW1

stated that that the thirteen families farmed at Ihawaja

farmland which is a swamp.

Respondent's Counsel referred to the cases of J. O.

Osidele V. Moses O. Sokunbi (2012) All FWLR (Pt.

645) 198 at 213; Duru V. Nwosu (1989) 4 NWLR (Pt.

113) 24 and Aromire V. Awoyemi (972) 2 SC 1 and

submitted that the Appellant has a duty under the law to

discharge the

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onus placed on him having raised facts contrary to the

position of the evidence in rebuttal to the presumption of

the prima facie case, especially being a counter claimant.

RESOLUTION OF ISSUES ONE AND TWO.

There are two related points in the exercise of the duty of

evaluation of evidence carried out by the learned trial

Judge in the instant case. The first is the nature of the

Respondent's case for the partition of existing separation

holdings of land as it were jointly by a single family, that is

the Odo/Ayijen family of Arigidi Akoko. The second is the

question whether the Odo/Ayijen family consists of two

branches as alleged by the Respondent or thirteen

branches as contended by the Appellant.

There is no doubt, and quite contrary to the suggestion of

the Learned Counsel for the Appellant in this case that the

evidence of the Respondent are in accordance with his

pleadings on the position that the parties had held different

holdings of land that is Ipawo and Ikode from time

immemorial separated by a swampy piece of land called

Ihawaja.

Paragraphs 1 to 5 of the Respondent'��s statement of claim

bear testimony to the pleadings and

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the evidence tendered in this case.

"1. The Plaintiff, a farmer who resides at No. 23

Agbaluku Quarters brings this action on behalf of

himself and other members of Jagele Olodo of Odo

family of Agbaluku Quarters, Arigidi Akoko, Ondo

State of Nigeria.

2. The Defendant, the current Olodo of Odo issued on

behalf of himself and other members of Aribisala

family of Odo Quarters, Agbaluku Quarters

Arigidi Akoko, Ondo State of Nigeria.

3. The avers that the land in dispute in this matter

called Odo family farmland is located at Agbaluku,

Arigidi Akoko Ondo State of Nigeria and it is

separated into 2 portions by a swampy strip of land

called Ihawaja farmland cultivated in the past solely

by Plaintiff's father and one Osere his brother from

Jagele family.

4. Further to paragraph 3 above the names of the 2

portions are called Ipawo and Ikode farmlands,

4(a). The Plaintiff avers that the land in dispute is

surrounded or bounded as follows:

(i) On one side by Ugbe - Akoko people's land, and the

portion of the land in dispute on that side is called

Ikode farmland.

(ii) On another side the land in dispute has boundary

with Ijasa

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family land of Agbaluku quarters, Arigidi Akoko.

(iii) On the remaining side the land is bounded by

Gbadayi family land of Agbaluku, Arigidi Akoko.

4 (b) The Plaintiff avers that Jagele the first leader of

Plaintiff's people migrated from Ife with his family in

the olden days and settled at a place called "Igbo

Ahamo" not far from the present site of Agbaluku

Quarters Arigidi, Akoko.

4 (c) The Plaintiff avers that after several years at

Ahemo, Plaintiffs ancestors for reasons of inter tribal

wars, notably from NUPE invaders moved to the

present site of Agbaluku where they joined other

Arigidi people and has since been farming on the land

in dispute on its area called Ipamo farmland when it

was virgin land inhabited only by snakes and other

dangerous animals.

4 (d) The Plaintiff avers that Aribisala the leader of

Defendants people who was a near relation of

Plaintiff's people and who was part of entourage of

Jagele was then farming on the part of the land called

"Ikode".

5. The Plaintiff avers that Ipawo has always been

cultivated by descendants of Jagele while Ikode is

usually cultivated by descendants of Aribisala ...”

From

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the pleadings and evidence in the instant case, it is clear

that the partitioning of Ipawo and Ikode farmlands of the

parties to the case had been existing from settlement.

Therefore, the pleadings and evidence of the Respondent

satisfied the expressed in the case of Olorunfemi V. Asho

(2000) 1 SC 1 at 15 that it is settled law that to succeed

in a claim of ownership of land based on partition, evidence

of how and when the said exercise in partition was

executed must naturally be established.

Indeed, where in a land matter as in the instant case, the

dispute between the parties is as to what features marks

the boundary between them, there is no reason for tracing

traditional histories. A party needs to trace such history

only where his link to the disputed land is in contest or

where he has to prove his root of title.

See Prince Will V. Amachree (2005) 3 NWLR (Pt. 912)

358.

The parties in this case agreed that the Appellant is in

exclusive possession of Ikode farmland which is part of

Odo/Ayijen family land. The evidence of the Respondent is

that his father owned Ipawo land while the land of the

Appellant is Ikode.

The attempt by the

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Appellant to disprove the prima facie case put forward in

this respect failed because the story of the Respondent was

more consistent, more probable and therefore preferable to

that of the Appellant.

The rationale for preferring the evidence of the Respondent

to that of the Appellant would be found at pages 117 - 118

of the records where the learned trial Judge held first at

page 117 that:

"On his own part, the Defendant testified that when

their forefathers migrated from Ile-Ife, they settled at

Ipawo. Contrary to the position of the Defendant, the

DW5 stated under cross-examination that the Plaintiff

and his people live and farm at Ipawo (Ipao) and they

do not go to Ikode. The D.W 4 and D.W5 under cross-

examination confirmed that the Plaintiff has his

house in Ipawo. The D.W5 under cross-examination

confirmed that the Plaintiff has his house in Ipawo.

The D.W.3 however went in opposite direction to the

position of the DW5 when he stated under cross

examination that the Plaintiff and his people are not

the ones on Ipawo land".

Still at page 117, the learned trial Judge remarked further:

"In another breath, the D.W.4 stated under

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cross examination that it is not true that the family of

the Plaintiff is the one farming and building houses

on Ipawo farmland, The Defendant however agreed

under cross examination that the Plaintiff and his

brothers have their houses on Ipawo farmland. The

Defendant stated in his evidence that Aribisala family

controls Ikode (Ikogbe) portion of the family land

that that is where he has his farm. That he cannot sell

Ipawo land without reference to the Plaintiff."

At page 118 of the record, the learned trial Judge also

noted on the issue thus:

"The Defendant and his witnesses contradicted

themselves on how and from where Jagele brought

Aboki Ijala to Ijasa land, While one said it was from

Ayere the other said it was from Ogidi in Kwara State.

Also while some claimed that Oluya came from Ile-Ife

alone, others claimed that twelve branches of

Odo/Ayijen family came from Ile-Ife together while

the thirteenth later joined them."

In the circumstance, the learned trial Judge referred to the

cases of Akuchie V. Nwamadi (1992) 8 NWLR (Pt. 258)

224 and Ayanwale V. Nwamadi (1991) 8 NWLR (Pt.

258) 214 and Ayanwale V. Atanda (1988) 1 SC 1 at 3

and 5,

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considered that the evidence of the Appellant is at variance

with his witnesses without any explanation and therefore

rejected the evidence of the Appellant on the issue.

On the related second issue as to how many branches made

up to how many branches made up to how many branches

made up the Odo/Ayijen family, the Respondent gave

evidence that Odo family is made up of two families/units

and not thirteen units.

The Appellant on his part testified that Odo is made up of

thirteen branches and went ahead to list them. The DW1

however listed only twelve branches including Osula. When

the DW1 was cross examined, he agreed with the

suggestion of Learned Counsel for the Plaintiff

(Respondent) that it is written at the bottom of page 40 of

Exhibit D4B (Minutes book of the family) that Osula is not a

member of Ayijen family.

On the above, the learned trial Judge observed at pages

119 - 120 of the record of appeal that:

"The question which the Defendant failed to provide

an answer to is how the thirteen branches came about

in view of the position taken by the Defendant that

Oluya begat Osonlorin who in turn begat Aribisala

and that Aribisala brought

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the grandfather of the Plaintiff from Ayere. The DW5

tried to provide an answer when he stated that twelve

branches came from Ile-Ife and the thirteenth later

joined them but he failed because his evidence was

not supported by the pleadings of the Defendant and

that piece of evidence is at variance with the evidence

of the Defendant that Oluya came alone from Ile-Ife.

In the circumstances, the learned trial Judge

considered that the credibility of the Appellant is

destroyed and concluded rightly in my view that

Ayijen/Odo family is made up of two units, that is

Aribisala and bello."

More importantly, it is obvious from the above discussion

that the learned trial judge properly evaluated the evidence

before the Court in coming to prefer on a balance of

probabilities the evidence of the Respondent to that of the

Appellant. The evaluation of evidence and the ascription of

probative value to such evidence are the primary functions

of a trial Court which saw, heard and duly assessed the

witnesses.

Where a Court of tr ia l as in the instant case,

unquestionably evaluates the evidence and justifiably

appraises the facts, what the Court of Appeal ought to do is

to

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find out whether there is evidence on Record on whichthe trial Court have acted. Once there is sufficientevidence on record from which the trial Court arrived atits finding of fact, the Appellate Court cannot interfere.See: Chief J. Okeowo V. Attorney General of OgunState (2010) 5 - 7 SC (Pt. 11) 129; Military Governorof Lagos State & 4 ors V. Adebayo Adeyiga & 6 ors(2012) 2 SC (Pt. 1) 68; Osuji V. Ekeocha (2009) 6 -7 SC (Pt. 11) 91; Cyriacus Nnadosie & 3 ors V. NzeOgbunelu Umagwu (2008) 1 SCNL 219; Oyibo Iriri& Others V. Eseroraye Erurhodare & Anor (1991) 3SCNJ 1.

In the instant case, the trial Court properly evaluatedthe evidence on record and this Court has no business ininterfering and/or substituting its own views on fact withthose of the trial Court.

Issue one and two are resolved against the Appellant.

Learned Counsel for the Appellant practically repeatedhis arguments on issues one and two in attacking thetrial Court's evaluation of the counter claim in his issuethree.

He added on the issue of unilateral sale of land by theRespondent without recourse to the Appellant as head ofthe family

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that learned trial Judge fell into error by holding that he

would not make such an order voiding such a sale because

those affected were not before him.

He urged that a sale of family land without the consent of

the head of the family is void. He urged us to resolve the

issue of the evaluation of the counter claim in favour of the

Appellant.

Learned Counsel for the Respondent adopted his previous

arguments on Appellant's issue three. He submitted that

the foundation of the Appellant's counter claim has been

rendered nugatory for lack of credible, cogent and reliable

evidence and was rightly dismissed by the learned trial

Judge.

RESOLUTION OF ISSUE THREE

I have already provided answers to Appellant's issue three

in my treatment of issues one and two. The Appellant did

not provide credible, cogent and reliable evidence in

support of the counter claim. The learned trial Judge was

also right when he held in respect of those that were not

parties before the Court at page 124 of the record as

follows:-

"The Defendant seeks an order declaring as void all

sale or alienation of Odo/Ayijen family land so fat

made. The evidence on sale of land

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made against the Plaintiff is in respect of Ipawo

farmland, The Plaintiff only admitted selling part of

the land to Cornerstone and one Adeyemo. Declaring

the sample of any parcel of Ipawo land by the Plaintiff

as void will affect the proprietary right of others who

are not parties to this case. It will be a denial of fair

hearing contrary to the provisions of Section 36 of the

Constitution of the Federal Republic of Nigeria for

this Court to make an order that will affect the rights

of persons who have not been heard.

Relief 2 is therefore refused."

Indeed, orders of Court in an action are not binding on non-

parties to the action.

Pelfaco Ltd V. WA. O.S. Ltd (1997) 10 NWLR (Pt. 524)

222. The general rule of law is that no person is to be

adversely affected by a judgment in an action to which he

was not a party, because of the injustice in deciding an

issue against him.

See Tunde Osunrinde & 7 Ors V. Mutairu Togun

Ajamogun & 5 Ors (1992) SCNJ 79; National Union of

Road Transport Workers & Anor V. Road Transport

Employers Association of Nigeria and 5 Ors (2012) 1

SC (Pt. 11) 119.

Issue Three is also resolved against the

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Appellant.

Having resolved, the three (3) issues in this appeal against

the Appellant, the appeal lacks merit and it is accordingly

dismissed.

There shall be no order as to costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.:I agree.

JAMES SHEHU ABIRIYI, J.C.A.:I read in advance, in draft judgment just delivered by mylearned brother Mojeed Adekunle Owoade, JCA.

He has dealt fully with the issues for determination. I adopthis reasoning and conclusions. I too dismiss the appeal.

I abide by the order as to costs.

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