Averments in pleadings on which no evidence is adduced are deemed to have been abandoned

AJIBOLA v. ANISERE & ANOR (2019) LPELR-48204 (CA)

In the Court of Appeal
In the Akure Judicial Division
Holden at Akure

ON FRIDAY, 12TH JULY, 2019

Suit No: CA/AK/98/2017

Before Their Lordships:

MOHAMMED AMBI-USI DANJUMA, JCA
RIDWAN MAIWADA ABDULLAHI, JCA
PATRICIA AJUMA MAHMOUD, JCA

Between

MR. JOEL OLAWALE AJIBOLA
(for himself and on behalf of members of Ajibola Olafasan family)

-Appellant(s)

And

1. PASTOR JOSEPH ADEOLU ANISERE
2. EMERGING MARKET TELECOMMUNICATION SERVICE LTD

-Respondent(s)

LEAD JUDGMENT DELIVERED BY PATRICIA AJUMA MAHMOUD, J.C.A.

FACTS OF THE CASE
The appellants as plaintiffs at the Osun State High Court, Ile-Ife Judicial Division by an amended writ of summons sought against the Defendants/Respondents a declaration for title, damages for trespass, special and general damages for destruction of economic trees. The case of the plaintiffs was that the 1st defendant wrongfully leased the plaintiff’s land to the 2nd defendant. That the 2nd defendant forcefully and without the consent of the plaintiff entered the farmland belonging to the plaintiff’s family and caused a bulldozer to destroy the economic crops worth ₦500,000 planted on the disputed land by the plaintiffs and their ancestors in preparation for the erection of the 2nd defendant’s mast communication tower. That the entire land which both himself and the 1st defendant’s ancestors inherited had been partitioned into three parts long ago according to the Idi Igi custom of the number of wives of their progenitor, Olafasan. That the said Olafasan was granted the land by Oba Ademiluyi, Ooni of Ife. That it was his own family’s section that was wrongfully entered into by the 2nd defendant. In proof of their case, the plaintiffs/appellants called five witnesses and tendered six exhibits

The 1st defendant did not give evidence in the matter. The 2nd defendant however called a lone witness and tendered four exhibits. The defence of the 2nd defendant was that the 1st defendant granted them a leasehold on the alleged parcel of land measuring 20metres by 20metres on the property described as “Pastor Joseph Olofasan’s plot situate at Olafasan’s village, along Ilesa-Ife Express way, Ife North Modakeke, Osun State with co-ordinates N7.56932 North and E4. 54130 East. That before entering the land they conducted routine due diligence on the property and obtained a resolution passed by the principal members which was admitted in evidence. That they also obtained a letter of confirmation of ownership/title to land from the Baale/Head of Oluwadatiti village, which was admitted in evidence.

ISSUES FOR DETERMINATION
The appeal was determined on the following issues: (i) Whether or not the trial Court was right to have based his entire judgment solely on evidence elicited from the plaintiff/appellant under cross examination which, is contrary to pleading and without proper evaluation of the totality of the evidence on record; (ii) Whether or not there is sufficient evidence on record for trial Court to have held that the plaintiff has received compensation in respect of the land in dispute and therefore divested of his title to the land; (iii) Whether or not the trial Court’s finding of facts was perverse or not; and (iv) Whether or not the address of counsel can take the place of evidence.

COUNSEL SUBMISSION
On the four issues raised, appellant counsel submitted that the trial Court erred when it held that the appellant had received compensation in respect of the land in dispute having based its findings on evidence elicited during cross examination which is not in tandem with the pleadings of the 2nd Respondent relying on the evidence. That the trial Court erred when it held that having been paid compensation by another person on the crops that were destroyed by the 2nd defendant when the evidence pleaded and led before the trial Court was that the Federal Ministry of Works and Housing paid compensation on crops planted on the portion of the Plaintiff/Appellant’s land that was used for the construction of the Ife-Ilesha Express Road.

Counsel further submitted that the trial Court erred and came to a wrong decision, which occasioned a miscarriage of justice when he held that compensation, has been paid on the entire land in dispute between the appellants and the respondents. That the land in dispute between the appellants and the respondents, which is the area trespassed upon by the 2nd respondent is different from the portion on which the Federal Government constructed the road. Counsel also submitted that the trial Court failed to assess and evaluate the evidence led before him before coming to the conclusion that the plaintiff/appellant had been divested of his title in the land in dispute. That the trial Court did not properly ascertain the land in dispute before him as the land in dispute is larger than the area upon which the 2nd respondent trespassed. Counsel therefore urged the Court of Appeal to allow the appeal, reverse and set aside the judgment of the trial Court including the order for cost and grant all the reliefs sought by the plaintiff/appellant in the Court.

RESOLUTION OF ISSUE
The Court having had a preview of the pleadings of the 2nd defendant contained in the record of appeal observed that there was nothing contained therein in respect of payment of compensation by any party to the plaintiff/appellant. The Court cited the case of SHITTU & ORS V FASHAWE (2005) 14 NWLR, PT 946, 671; (2005) LPELR-3058 (SC), where the Supreme Court held that where inadmissible evidence has been wrongfully admitted and acted upon and whether or not the opposing party objects, an appellate Court has the duty to exclude such evidence and decide the case only on the legally admissible evidence. See also OLAYINKA V STATE (2007) 9 NWLR PT 1040, 561; (2007) LPELR-2580 (SC) and BAKO V STATE (2018) LPELR–44479(CA). On the strength of these authorities, the Court expunged the said piece of evidence, which showed that the appellant received compensation in respect of the land in dispute.

On the question of whether the decision of the trial Court was perverse. The Court held that a decision or finding of Court is said to be perverse “when it runs counter to the evidence and pleadings or where it has been shown that the trial judge took into account matters which he ought not to have taken into account or shuts his eyes to the obvious, or when such a decision has occasioned a miscarriage of justice, or when the circumstances of the findings of facts in the decision are most unreasonable”. See: KAKULU V KAKULU (2016) LPELR–41552(CA), MAZANG V MASHINKPEN & ANOR (2018) LPELR–46144(CA) and MAMONU & ANOR V DIKAT & ORS (2019) LPELR–46560(SC). From the authorities cited and all the surrounding circumstances of the case, the Court held that the findings of the trial Court in this case are totally perverse and liable to be set aside.

As regards whether the appellant proved his case before the trial Court to warrant setting aside the decision of the trial Court, the Court stated the trite principle of law that a plaintiff who seeks a declaration of title to land must prove the root of his title. See ARCHIBONG V EDAK (2006) 7 NWLR, PT 980, (2005) LPELR-12877 (CA); DIKE V OKOLOEDO (1999) 10 NWLR PT 623, (1999) LPELR-946(SC) and OTANMA V YOUDUBAGHA (2006) 2 NWLRPT 964, (2006) LPELR-2821(SC). The Court stated further that the first of these five ways of proving title is by traditional evidence and that it is important to point out at the outset that the establishment of one of the five ways is sufficient proof of ownership. EWO V ANI (2004) 17 NSCPR 36, (2004) LPELR-1182 (SC); ADESANYA V ADERONMU (2000) 6 SC (PT. II) 18, (2000) LPELR-145 (SC) and NDUKUBA V IZUNDU (2007) 1 NWLR PT 1016, 432, (2006) LPELR-5786 (CA). Also, the Court stated that a plaintiff who claims a declaration of title to land has the burden of setting out clearly by who and how the land was founded and the names of persons who had exercised acts of ownership on the land before it devolved upon him. OLOKOTINTIN V SARUMI (2002) 13 NWLR, PT 784, 307; (2002) LPELR-2587 (SC). The Court held that the plaintiff/appellant has shown satisfactorily that his plan corresponds with the land to which he lays claim. See ONWUCHEKWA V EZEOGU (2002) 18 NWLR, PT 799, 333.

The Court observed that the 1st defendant did not tender any counter dispute plan to that of the plaintiff/appellant and did not led any evidence in support of his pleadings. The Court held that it has long been settled that where a defendant as in the instant case fails to give evidence in support of his pleadings or in challenge of the evidence of the plaintiff he is deemed to have accepted and rested his case on the facts adduced by the plaintiff notwithstanding the general traverse. That is to say that averments in pleadings on which no evidence is adduced are deemed to have been abandoned and do not constitute proof of such facts unless such facts are admitted. See: IFETA V SPDC (NIG) LTD (2006) 8 NWLR, PT 983, 585, (2006) LPELR-1436 (SC); AKINBADE & ANOR V BABATUNDE & ORS (2017) LPELR-43463 (SC) and ONUBE V ASUAKOR & ORS (2019) LPELR–47231 (CA). The Court held that the plaintiff/appellant whose reliefs are mainly declaratory has by his evidence before the Court, both oral and documentary attained the level of proof, which does not recognize admission. There was no admission from the 1st defendant/respondent in this case in any event.

Having found in the judgment that the findings and decision of the trial Court was perverse, the Court thereby set it aside and held that the plaintiff/appellant has on the balance of evidence proved his claim and is entitled to judgment. Judgment was therefore entered in favour of the plaintiff/appellant.

In respect of the claim for special damages, the Court found that the evidence led by the plaintiff/appellant does not lend itself to the actual quantity and value of the crops destroyed; it is merely evidence at large which is not credible evidence required in proof of special damages. The evidence does not itemize the exact quantity of each kind of crop and their value at the stage they were destroyed. The Court found in the circumstances that the plaintiff’s claim for special damages fails and it was accordingly dismissed.

Finally, as regards the plaintiff/appellant claim of N2,000,000 as solicitor’s fees for the prosecution of this case. The Court found that this item of claim has been proved on a balance of evidence and it is reasonable considering that the matter was filed in June 2012 but judgment was only entered in October 2016, a period of four years. The Court held that “it is progressive to note that our law has moved from GUINNESS (NIG) PLC V NWOKE (2000) 15 NWLR, PT 689, 135; (2000) LPELR-6845 (CA) when such a claim was said to be unknown to law to the more dynamic posture of our Courts in the more recent cases of LONESTAR DRILLING NIG LTD V NEW GENESIS EXECUTIVE SECURITY LTD (2011) LPELR-4437 (CA) and NAUDE & ORS V SIMON (2013) LPELR-20491 (CA) where such claims are granted if properly pleaded and proved. The instant case falls into this latter category of legal dynamism. “I therefore award N2, 000, 000 in favour of the plaintiff/appellant for money paid to his solicitors for the prosecution of this case as claimed,” the court declared.
HELD
On the whole, the Court held that the appeal succeeds and it was allowed.

Appearances:
Mr. J.A. Adeboye with him, Mr. Michael Olaji -For appellant
Mr. O.O. Adebiyi – For 2nd respondent
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