(2018) LPELR-45690(CA)

Transcription

1 NDARABI v. KOLOBIJI CITATION: CHIDI NWAOMA UWA HAMMA AKAWU BARKA In the Court of Appeal In the Ilorin Judicial Division Holden at Ilorin BOLOUKUROMO MOSES UGO MUSTAPHA SHUAIB NDARABI MR. MUSA SADIQ KOLOBIJI ON FRIDAY, 27TH JULY, 2018 Suit No: CA/IL/93/17 Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. JUDGMENT AND ORDER - ERROR/MISTAKE IN JUDGMENT: Whether every error/mistake in a judgment will result in a judgment being set aside; circumstance where error/mistake in a judgment will result in a judgment being set aside "I agree with the learned counsel that the evaluation in respect of Sheikh Mohammed Kolobiji as complained about by the Appellant would not affect the resolution of the issues. The alleged wrongly reviewed Appellant's evidence under cross examination does not go to the root of the matter that would have affected the resolution of the main issues before the trial Court. On the other hand, it is not every error or mistake in a judgment that leads to a miscarriage of justice or the appeal being allowed. But, where the error is substantial, of course it would occasion a miscarriage of justice and this Court as an appellate Court would interfere with it. It is not the case here. In the case of CHIEF KAFARU OJE & ANOR VS. CHIEF GANIYU BABALOLA & ORS (1991) LPELR (SC). 21 PARAS. B - D, his lordship Nnaemeka Agu, JSC on error/mistake in a judgment that would result in setting aside of the judgment held thus: "It is, of course settled, that it is not every mistake or error in a judgment that will result in the appeal being allowed. It is only when it is substantial in that it has occasioned a miscarriage of justice that the appellate Court is bound to interfere. See, ONAJOBI VS. OLANIPEKUN (1985) 4 SC (PT. 2) 156, P GWONTO VS. THE STATE (1983) 1 SCNLR 142, PP " Also, reported in (1991) 4 NLR (PT. 185) P. 267 and (1991) 5 SC P Similarly, in the case of OSAFILE & ANOR VS. ODI & ANOR (1990) LPELR (SC) P. 28, PARAS C - E his lordship before then had also held in the same respect that: "It is now a well - known policy of this Court that it is not every slip of a lower Court that will result in an appeal being allowed: It is only those mistakes that have been shown to have affected or influenced the decision appealed against that result in the appeal being allowed, it is only those mistakes that have been shown to have affected or influenced the decision appealed against that result in the appeal being allowed, see on this - ONAJOBI VS. OLANIPEKUN (1985) 4 SC 156 at 163, also JUDE EZEOKE and ORS VS. MOSES NWAGBO and ANOR (1988) 1 NWLR (PT. 72) 616 at P. 626." See, also KAYODE VS. STATE (2016) LPELR (SC) P. 36, PARAS A - D."Per UWA, J.C.A. (Pp , Paras. C-C) - read in context

3 2. LAND LAW - IDENTITY OF LAND: Whether proof of identity is required where the identity of the land in dispute is known to the parties "The learned trial judge was wrong to have found that the Appellant did not specify the particular mosque and location of the mosque where Sheikh Mohammed Mustapha Ndarabi (junior) acted as Imam. The issue of the identity or location of the mosque was not before the trial Court and did not arise in the case of the parties at the lower Court. Where the identity of the land in dispute is known to the parties, it is not necessary to prove same. In the case of AKINTERINWA & ANOR VS. OLADUNJOYE (2000) LPELR (SC) P. 34, PARAS B - C (also reported in (2000) 6 NWLR (PT. 659) P. 92 and (2000) FWLR (PT. 10) P. 1690) his lordship Karibi - Whyte, JSC reiterated the position of the law thus: "It has always been accepted in our Courts in land cases that where the area of land in dispute is well known to the parties, the question of proof not being really in dispute does not arise. In such a situation, it cannot be contended that the area claimed, or can the land in dispute be described as uncertain, see ETIKO VS. AROYEWUN (1959) 4 FSC 129; (1959) SC NLR 308; OSHO VS. APE (1998) 8 NWLR (PT. 562) 492." See, also, ATANDA V. ILIASU (2012) LPELR (SC) PP , PARAS D - A; BURAIMOH VS. BAMGBOSE (1989) 3 NWLR (PT. 109) 42, OKONKWO VS. ADIGWU (1985) 1 NWLR (PT. 4) 694 and MABERI VS. ALADI (1987) 2 NWLR (PT. 55) 101. I hold that the identity of the mosque or the land in dispute is not disputed and not joined as an issue in the pleadings, therefore, the learned trial judge was wrong to have raised it and pronounced on it."per UWA, J.C.A. (Pp , Paras. E-A) - read in context

4 CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Respondent as the claimant before the trial Court instituted this suit against the Appellant who was the Defendant/Counter Claimant vide a writ of summons and statement of claim filed on the 8th May, 2014 in the High Court of Kwara State and claimed the following reliefs: i. A Declaration that the wrongful claim/occupation of the property situated and lying at No. 37, Karumoh street, Ilorin by the Defendant is unlawful, null and void. ii. A Declaration that the claimant s families are the only person(s) entitled to any title document(s) on the landed property. iii. An Order of perpectual injunction restraining the defendant, his agents, privies or persons claiming to act at his instance or on his behalf from trespassing on patasin compound situated and lying at no. 37, Karumoh Street, Ilorin. iv. An order of perpectual injunction restraining all the tenants that were granted some 1

5 piece(s) of land by the defendant on patasin Kolobiji family compound situate and lying at no. 37, Karumoh Street, Ilorin. v. An order of general and specific damages in the sum of Seven Hundred Thousand Naira (N750,000.00k) only for trespass and wrongful possession by the defendant to the said landed property situate, lying and being at No. 37, Patasin Kolobiji Compound, Ilorin. The Appellant as the Defendant/Counter claimant claimed against the Respondent as follow: (i) A DECLARATION that the family of Ndarabi of Ndarabi compound, Karumoh Street, Ilorin, Kwara State, are the only family entitled to the grant of Statutory right of Occupancy in respect of the property(ies) situate and lying at Ile Patasin, Karumoh Street, Ilorin, Kwara State. (ii) A DECLARATION that the continuing occupation of a room and a parlor situate and lying at Ile Patasin, Karumoh Street, Ilorin, Kwara State reserved for the incumbent Imam of Ndarabi Mosque by the claimant after having being removed as the Imam of Ndarabi 2

6 mosque is illegal, null and void. (iii) AN ORDER of this Honourable Court for the possession of the room and parlor situate at Ile Patasin, Ndarabi Compound, Karumoh Street, Ilorin Kwara State. (iv) A PERPECTUAL INJUNCTION restraining the claimant, his servants, agents, privies, personal representatives from disturbing the defendant or any members of Ndarabi family or from trespassing, tampering with, dealing in any way or manner with the property(ies) situate and lying at Ile Patasin, Karumoh Street, Ilorin, Kwara State. At the close of the trial, the trial Court dismissed the counter claim and granted the claims of the Respondent. The Appellant was dissatisfied with the judgment of the trial Court delivered on the 27th day of February, 2017 appealed against the entire decision. The background facts on the part of the Appellant is that the property in dispute (comprising of a room and parlour with the parcel of land around the Ndarabi Mosque) was reserved for the usage and benefit of any incumbent Imam of the Mosque from the inception of the mosque. 3

7 The stated position remained the same until the appointment of the Respondent as the 8th Imam of the said Mosque. It was alleged that after the removal of the Respondent as the Imam of the said mosque he failed to deliver up the possession of the room and parlour in dispute. The piece and parcel of land in and around the Ndarabi Mosque was taken over by the present Imam who has been receiving rents from the tenants therein for his sustenance. The subject of this appeal was said to be the room and parlour and the parcel of land. It was the contention of the Appellant that before the Respondent s appointment as the 8th Imam of the Mosque, he was not in possession of the disputed property. The Respondent s possession of the disputed property was SAID TO BE by virtue of his appointment as the 8th Imam of the Mosque. It was made out that the Ndarabi Compound, the Appellant s family compound comprises of other smaller compounds like Ile Baba Okanla, Ile Gantagba, Ile Alanu, Ile Baba Issa, Ndarabi Mosque and Ile Patasin where the disputed property is situated. The Appellant s counter- 4

8 claim and the Respondent s claim were in respect of the room and parlour and the land around it. The appellant distilled three (3) issues for the determination of the Appeal thus: (i) Whether the failure of the learned trial Court to properly review and/or evaluate the evidence led before it had not occasioned miscarriage of justice to the Appellant. (ii) Whether the learned trial Court was right to have raised question on the issue not in dispute between the parties without affording the parties the opportunity to address on same. (iii) Whether the learned trial Court was right when it held that the disputed room and parlor and the adjoining piece and parcel of land to Ndarabi Mosque were part of the land granted to Patasin Family, inspite of the resolution of the Balogun-in-council. In response, the Respondent filed a Respondent s Notice on 14th September, 2017 contending that the judgment be affirmed on grounds other than those relied on by the trial Court. The grounds relied upon are as follows: 5

9 Ground 1: The trial Court ought to have affirmed its decision based on the traditional history of the Respondent over the disputed land pleaded and proved before the Court. Ground 2: The trial Court ought to have affirmed its decision based on the acts of ownership numerous and for a long period of time of the Respondent and his family over the disputed land pleaded and proved before the Court. Ground 3: The trial Court ought to have affirmed its decision based on the support of the Respondent s claims from the pleading and evidence led before the trial Court by the Appellant and the material contradictions that trailed the Appellant s pleaded facts and evidence before the trial Court. RELIEF SOUGHT FROM THE COURT OF APPEAL: The Respondent prays the Court of Appeal to support the decision of the trial Court by affirming the judgment on the Respondent (sic) grounds of contention. 6

10 In addition, the Respondent distilled the following issues for determination of the appeal: 1. Whether the trial Court did not properly review the evidence led before it to have occasioned miscarriage of justice to the Appellant. 2. Whether the learned trial Court was right to have raised question on the issue not in dispute between the parties without affording the parties the opportunity to address on same. 3. Whether the resolution of the Balogun in council is binding on the Respondent and the trial Court. 4. Whether the Respondent has not successfully proved his claims by establishing his traditional history, various acts of ownership and long possession of his Patasin family over the disputed land for the trial Court to affirm its decision based on them. 5. Whether the trial Court ought not to have affirmed the Respondent s claims the Respondent s claim (sic) from the material contradictions trailing the 7

11 pleading and evidence of the appellant and the support to the Respondent s claims found in the pleading and evidence of the appellant before the Court below. In arguing the appeal, the learned counsel to the Appellant, U.S. Imam relied on his brief of argument filed on 25/1/18 but, deemed filed on 30/1/18 and his reply brief filed on 16/4/18 but, deemed filed on 30/4/18 in urging us to allow the appeal and set aside the judgment of the lower Court. In arguing his first issue, the learned counsel faulted the evaluation of evidence done by the trial Court. It was submitted that the trial Court wrongly evaluated and reviewed the evidence of the Appellant as DW4 when it omitted Ile Patasin as part of the compounds that constitute Ndarabi Compound, the omission was said to be perverse and occasioned a miscarriage of justice. Also, that the trial Court wrongly reviewed the evidence before it when it said that the appellant admitted under cross examination that his mother is an elder sister to the Respondent and that his mother is one of the eleven children of Mohammed Biji. 8

12 See, MAHAMMADU JIYA VS. MOHAMMADU KANYE AGBABO AWUMI & 1 OR (2011) 4 NWLR (PT. 1238) 467 at 472 and INEC VS. ATUMA (2013) 11 NWLR (PT. 1366) 494 at 521 PARAS. D E, also PAGE 525 PARAS. E and 541, PARAS. A C. Further, that the Respondent s father was wrongly referred to as Sheikh Mohammed Sadiq Kolobiji in its judgment while the Respondent s father s name from the statement of claim is Abubakar Sadiq Kolobiji, page 45 of the records and page 5, paragraph 11 of the records. It was submitted that if the evidence of the parties was properly evaluated, the Court would have arrived at a different decision, see ADEBAYO VS. P.D.P. (2013) 17 NWLR (PT. 1482) 1 at 67 68, PARAS. H C. On the second issue, it was submitted that the entire claim (the room and parlour with the land around it) revolve around the Ndarabi Mosque and no reference was made to any other mosque to warrant specific identification. It was submitted that the appellant s statement that Sheikh Mohammed Mustapha Ndarabi (junior) had already established Ndarabi Mosque and had been acting as the Imam Eighteen (18) years before the arrival of Sheikh 9

13 Mohammed Biji was not challenged or controverted. It was submitted that the mosque in issue was not in doubt and that the trial Court was wrong to have held that the Appellant did not specify which mosque his great grandfather Sheikh Mohammed Mustapha Ndarabi (junior) served as the Imam before the arrival of Sheikh Mohammed Biji. See, BENE CHIDOKA & 1 OR VS. FIRST CITY FINANCE COMPANY LIMITED (2013) 8 NWLR (PT. 1346) 144 at 162 PARAS. D E. We were urged to hold that the learned trial judge pronounced on an issue which was neither in dispute nor in contention between the parties which led to a miscarriage of justice. On the third issue, it was submitted that the learned trial judge was wrong to have held that the disputed room and parlour with the piece and parcel of land in and around Ndarabi Mosque were part of the land granted to the Respondent s family despite the decision and resolution of the Balogun in council. It was the contention of the Appellant that the Respondent who traced his root of title to the then Emir of Ilorin through the then Balogun Gambari, Mallam Murogo, did not claim the entire Patasin Compound (Respondent s compound) which 10

14 comprises of about twenty (25) rooms and parlour, which is not in contention, that it is only a room and parlour and the parcel around the mosque that is in dispute. It was submitted that the Respondent failed to establish that the room and parlour and the parcel of land around it was part of the land granted to his family by the then Emir of Ilorin through the then Balogun Gambari of Ilorin. It was also submitted that the Respondent failed to establish that Balogun Gambari acted as a link between the Respondent s family and the then Emir of Ilorin in respect of the grant of the room and parlour with the land around it, now in dispute. See, THOMAS NRUAMAH & 4 ORS VS. REUBEN EBUZOEME & 9 ORS (2013) 13 NWLR (PT. 1372) 474 at 498 PARAS. A B. Further, that Balogun Gambari ought to have been called as a vital witness to establish that the room and parlour, with the surrounding grounds were part of the grant to the Respondent s family by the Emir of Ilorin, the failure was argued to be fatal to the Respondent s case. It was concluded that the trial Court s observation at the locus forms part of the records of Court 11

15 and ought to have been utilized in favour of the Appellant to the effect that the disputed room and parlour and the surroundings were not part of the grant to the Respondent s family even though situated at Ile Patasin (the respondent s family compound). We were urged to hold that the trial Court was wrong to have held that the disputed room and parlour with the adjoining piece and parcel of land to Ndarabi Mosque were part of the land granted to the respondent s family in spite of the resolution of the Balogun in council. In response, the learned counsel to the Respondent S.A. Ayipo relied on his Respondent s Notice that the judgment of the trial Court be affirmed on some other grounds other than those relied upon. The grounds upon which the Notice was filed were enumerated above. The learned counsel also relied on his brief of argument filed on 26/2/18 in urging us to uphold the judgment of the trial Court as well as the contention in the Respondent s Notice. In arguing his first issue, it was submitted that whether Ile Patasin compound is an independent compound on its own or forms part of the 12

16 Appellant s Ndarabi Compound was an issue that dominated the attention of the trial Court and as such, the issue rightly formed a major part of the trial Court s evaluation of the evidence before it, and the omission of Ile Patasin compound as a unit of Ndarabi compound did not occasion a miscarriage of justice. It was argued that the determination in one way or the other of whether Sheikh Mohammed Kolobiji was the grandfather of the Respondent and maternal great grandfather of the Appellant would not affect the judgment in anyway with the uncontroverted evidence that the Respondent s father Abubakar Kolo or Kolobiji who was the fifth Imam of the Mosque doubled as the head of the Ile Patasin compound during his life time. It was made out that the Appellant admitted that the Respondent as the 8th Imam of the Mosque was also the head of the family of the Ile Patasin compound, page 229 of the records. It was argued that the alleged wrongly reviewed evidence of the Appellant under cross examination in respect of Sheikh Mohammed Kolobiji did not touch on the root of the matter that could affect the final decision on the main 13

17 issues before the Court and that the mistake if at all did not lead to a miscarriage of justice. See, NDULUE VS. IBEZIM (2002) VOL. 12 MJSC 150 at 168. On his second issue, it was submitted that issues were joined by the parties when the Respondent denied the deposition of the Appellant as contained in his paragraph 18 of his written statement on oath that Sheikh Mohammed Mustapha Ndarabi (junior) had been acting as the Imam eighteen (18) years before the arrival of Sheikh Mohammed Biji, reference was made to paragraph 11 of the claimant s reply to the statement of Defence and Defence to the counter claim, also paragraph 9 of the statement on oath of the claimant in respect of the reply to the Defence and counter claim which was denied by the Respondent who joined issues with the Appellant on the above assertion. Also, referred to is paragraph 9 of the claimant s written statement on oath in respect of the reply to the statement of Defence and counter claim, page 88 of the printed records of appeal. See, also page 61. On the Respondent s third issue, it was submitted that it was the Emir of Ilorin that could be rightly regarded as 14

18 a grantor and not Balogun Gambari, through whom the instruction of the Emir was carried out. Therefore, that it is the Emir as the grantor of the land that has the power and in a position to ask the Respondent s family to vacate the land and not Bologun Gambari. It was argued that Balogun Gambari could not have been called as a witness having died over one hundred (100) years before then. The need to have called Balogun Gambari was said not to have arisen since it was an admitted fact that the Balogun Gambari acting on the instruction of the then Emir of Ilorin settled the Respondent s progenitor, sheikh Mohammed Kolobiji on the disputed land. Reference was made to paragraph 17 of the Appellant s written statement on oath, page 62 of the records. See, NDAYAKO VS. JIKANTORO & ORS (2004) 8 MJSC 163 at 184 to the effect that admitted facts need no further proof. It was argued that the Respondent as the 8th Imam was also the head of the Patasin family and therefore not proper for the Appellant to demand the vacation of the room and parlour with the parcel of land which the Respondent occupied as the head 15

19 of the family and not as the Imam as made out by the Appellant. The evidence of the DW1 under Cross Examination was reviewed, page 223 of the records and that of the PW3 (Ibrahim Akanbi) under cross Examination, at page 221 of the records. Further, that the removal of the Respondent as the Imam should not translate to his removal as the head of the family, that would lead to vacation of the room and parlour built by his father and meant to be occupied by the head of the Patasin family and collecting rent from the surrounding premises not to be done by a non member of Ile Patasin family. In arguing his fourth issue, it was submitted that the Respondent through traditional history established his root of title over the disputed land at Ile Patasin compound, Karumoh Street, Ilorin. While relying on paragraph 1 of the Respondent s statement of claim to the effect that the founder of the Patasin Compound was one Sheikh Mohammed Kolobiji and his father, Mallam Abubakar Sodiq Kolobiji, one of the children of the said founder of Ile Patasin Compound. It was submitted that the Respondent also from his pleadings and evidence before the Court, established his claims by acts of 16

20 ownership and long possession of the land in dispute. The evidence of the PW1, PW2 and DW4 was once again reviewed to show that the exercise of acts of ownership over the Patasin Compound from inception resided on the members of Patasin family alone. Reference was made to the evidence of the DW2 to the effect that all previous Imams of Ndarabi Mosque up to the Respondent as the 8th Imam are from Ile Patasin Compound. Further, that possession of Patasin Compound has always been by members of Patasin Compound alone including the disputed portion. The five ways of establishing title to land were enumerated while reliance was placed on the case of AMADI VS. CHINDA & ORS (2009) 4 MJSC (PT. 1) 120 at 143. It was submitted that what is required is to establish one of the five ways. See, EZUKWU VS. UKACHUKWU & 1 OR (2004) 11 MJSC 66 at 85 and AKULAKU VS. YONGO (2002) 4 MJSC 137 at 158. We were urged to hold that the Appellant proved his claims through traditional history, acts of ownership and long possession. On the fifth issue, it was submitted that there is no precedent or tradition from the history of Ndarabi family 17

21 upon which the DW2 and the Appellant could rely on for taking over Patasin compound from the members of the claimant s family. It was re-argued at length that only members of Patasin family that have always occupied the room and parlour or acted as the head of Patasin Compound. Reference was made to paragraph 18 of the statement of Defence and counter claim and paragraph 18 of the written statements on oath of the DW2 and DW4. It was also re-argued that the room and parlour and the land around it are not meant for the Imam of Ndarabi Mosque but, for the head of Patasin Compound. It was submitted that the father of the 7th Imam of Ndarabi lived in the room and parlour and there was no evidence to show that he was an Imam of Ndarabi, even though the head of Patasin Compound. It was re-argued that the fact that the Respondent was removed as Imam did not translate into not being the head of the Patasin family compound, reference was made to the evidence of the DW1. It was concluded on this issue, that from the Appellant s counter claim his intention is to take over his maternal home for his Ndarabi family. In his reply brief, the learned counsel to the Appellant 18

22 reviewed the submissions of the learned counsel to the Respondent as well as the authorities cited and relied upon and summarized the issue in the case at the trial Court as concerning the official use of the room and parlour with the surrounding premises as that of the Imam of Ndarabi Mosque. The Appellant s first issue challenged the evaluation of evidence by the trial Court. It was alleged by the appellant that the trial Court while reviewing the evidence of the Appellant as DW4 omitted Ile patasin as part of the compounds that make up Ndarabi Compound. The case of the Appellant in his statement of Defence and counter claim is that Ndarabi Compound is large and contains smaller compounds as follows: Ile - Patasin, Ile Alanu, Ile Baba Issa, Ile Gantangba and Ile Baba Okanla. The Appellant also refuted the trial Court s review of the evidence of the Appellant to the effect that the appellant admitted under Cross Examination that his mother is an elder sister to the Respondent and one of the eleven children of Mohammed Biji, page 244 of the printed records of appeal. The Appellant denied Sheikh 19

23 Mohammed Biji being his maternal great grandfather as evaluated by the trial Court. Also, the reference made to Sheikh Mohammed Sadiq Kolobiji in the lower Court s judgment as the father of the Respondent, while the Respondent s father s name from the statement of claim is Abubakar Sadiq Kolobiji. The above mentioned names were said to have migrated from different places and settled at Ile Patasin at different times and are not related by blood. No evidence was led to establish the fact that the Appellant s mother and the Respondent were from the same grandfather called Sheikh Mohammed Biji as found by the learned trial judge. It is noteworthy that the main complaint under the first issue is that the trial Court did not properly evaluate the evidence in respect of the genealogy of the parties, and whether they were blood relations or not. From my understanding, I tend to agree with the submissions under this issue to the effect that the mistake (which was not admitted by the Respondent s learned counsel) or error as to whether the parties were of the same line of parentage is not the main issue to be resolved for proper determination of the 20

24 matter before the trial Court. The issue is whether Ile Patasin Compound is a compound of its own or a unit of Ndarabi Compound, also whether the room and parlour in dispute is reserved for whoever would be Imam of the Mosque or meant to be occupied by the head of Ile Patasin Compound to occupy alone and in the same vein, whether the rent from the shops around the mosque would be collected by the Imam or the head of the Patasin family on behalf of the whole family. I agree with the learned counsel that the evaluation in respect of Sheikh Mohammed Kolobiji as complained about by the Appellant would not affect the resolution of the issues. The alleged wrongly reviewed Appellant s evidence under cross examination does not go to the root of the matter that would have affected the resolution of the main issues before the trial Court. On the other hand, it is not every error or mistake in a judgment that leads to a miscarriage of justice or the appeal being allowed. But, where the error is substantial, of course it would occasion a miscarriage of justice and this Court as an appellate Court would interfere 21

25 with it. It is not the case here. In the case of CHIEF KAFARU OJE & ANOR VS. CHIEF GANIYU BABALOLA & ORS (1991) LPELR 2368 (SC). 21 PARAS. B D, his lordship Nnaemeka Agu, JSC on error/mistake in a judgment that would result in setting aside of the judgment held thus: It is, of course settled, that it is not every mistake or error in a judgment that will result in the appeal being allowed. It is only when it is substantial in that it has occasioned a miscarriage of justice that the appellate Court is bound to interfere. See, ONAJOBI VS. OLANIPEKUN (1985) 4 SC (PT. 2) 156, P GWONTO VS. THE STATE (1983) 1 SCNLR 142, PP Also, reported in (1991) 4 NLR (PT. 185) P. 267 and (1991) 5 SC P Similarly, in the case of OSAFILE & ANOR VS. ODI & ANOR (1990) LPELR 2783 (SC) P. 28, PARAS C E his lordship before then had also held in the same respect that: It is now a well known policy of this Court that it is not every slip of a lower Court that will result in an 22

26 appeal being allowed: It is only those mistakes that have been shown to have affected or influenced the decision appealed against that result in the appeal being allowed, it is only those mistakes that have been shown to have affected or influenced the decision appealed against that result in the appeal being allowed, see on this ONAJOBI VS. OLANIPEKUN (1985) 4 SC 156 at 163, also JUDE EZEOKE and ORS VS. MOSES NWAGBO and ANOR (1988) 1 NWLR (PT. 72) 616 at P See, also KAYODE VS. STATE (2016) LPELR (SC) P. 36, PARAS A D. I hold that whether Sheikh Mohammed Kolobi was the grandfather of the Respondent and the maternal great grandfather of the Appellant or not is not the issue to be resolved for the proper determination of the issue before the trial Court which is: who is entitled to reside in the room and parlour and who is entitled to occupy and/or use the surrounding premises around the room and parlour? The appellant s issue one fails. On issue two, the claim and counter claim of the Respondent and Appellant respectively revolve around the room and parlour with the piece and parcel of land in 23

27 respect of the Ndarabi Mosque. Also, referred to in the reliefs sought at the lower Court, it is clear that the issue is as to who is entitled to occupy the room and parlour. Whether it is any Imam to the Ndarabi Mosque or the head of Ile Patasin Compound. In the proceedings before the trial Court, no mention was made of any other mosque or other mosques in the larger Ndarabi compound or the smaller compound of Ile Patasin. The parties in the proceedings made reference to only one mosque Ndarabi Mosque. As highlighted by the learned counsel to the Appellant, in pargraph 18 of the Appellant s statement on oath, page 6 of the printed records, Ndarabi Mosque was specifically mentioned as where Sheikh Mohammed Mustapha Ndarabi (junior) acted as Imam for eighteen years after establishing same before the arrival of Sheikh Mohammed Biji. The learned trial judge was wrong to have found that the Appellant did not specify the particular mosque and location of the mosque where Sheikh Mohammed Mustapha Ndarabi (junior) acted as Imam. The issue of the identity or location of the mosque was not before the trial Court and did not arise in the 24

28 case of the parties at the lower Court. Where the identity of the land in dispute is known to the parties, it is not necessary to prove same. In the case of AKINTERINWA & ANOR VS. OLADUNJOYE (2000) LPELR 358 (SC) P. 34, PARAS B C (also reported in (2000) 6 NWLR (PT. 659) P. 92 and (2000) FWLR (PT. 10) P. 1690) his lordship Karibi Whyte, JSC reiterated the position of the law thus: It has always been accepted in our Courts in land cases that where the area of land in dispute is well known to the parties, the question of proof not being really in dispute does not arise. In such a situation, it cannot be contended that the area claimed, or can the land in dispute be described as uncertain, see ETIKO VS. AROYEWUN (1959) 4 FSC 129; (1959) SC NLR 308; OSHO VS. APE (1998) 8 NWLR (PT. 562) 492. See, also,atanda V. ILIASU (2012) LPELR (SC) PP , PARAS D A; BURAIMOH VS. BAMGBOSE (1989) 3 NWLR (PT. 109) 42, OKONKWO VS. ADIGWU (1985) 1 NWLR (PT. 4) 694 and MABERI VS. ALADI (1987) 2 NWLR (PT. 55)

29 I hold that the identity of the mosque or the land in dispute is not disputed and not joined as an issue in the pleadings, therefore, the learned trial judge was wrong to have raised it and pronounced on it. The second issue is resolved in favour of the Appellant. On the Appellant s third issue, it is in evidence that the Respondent s pleadings and evidence bordered on establishing his root of title to the entire patasin compound. The entire patasin compound is not in issue. What is in issue is only the room and parlour and the land around the mosque, also acknowledged by the appellant, at page 207 of the records. The contention of the Appellant is that the room and parlour and the disputed land were not part of the land granted to the Respondent s family, while the Respondent contended that the room, parlour and the land in dispute constitute part of the land granted to his family by the then Emir of Ilorin through the then Balogun Gambari of Ilorin. The burden was on the Respondent to establish that the land in dispute formed part of the land granted to his family by calling evidence in proof of his assertion. 26

30 The appellant led credible evidence that the room and parlour were occupied by the Imam of the Ndarabi Mosque who also made use of the land around the mosque for his upkeep. The Respondent as PW1 also testified that his patasin compound comprised of twenty five (25) rooms and parlour but, that what is in dispute is the room and parlour. The Respondent was unable to establish that his family was entitled to exclusively occupy the room and parlour in dispute and not the Imam to the Ndarabi Mosque. While the Respondent was able to establish that all those who occupied the room and parlour, and made use of the land around the mosque were Imams until the Respondent became the 8th Imam, and also occupied the room and parlour but, refused to vacate after his removal as Imam. Some of the past Imams were the oldest members of the family, therefore occupied the room and parlour also, as the heads of Ile Patasin Compound but, the room and parlour did not revert to being only for the occupation of the head of the Ile Patasin family as made out by the Respondent. The Imam also utilized the land around the mosque for his upkeep; there was no evidence to the contrary. 27

31 There is credible evidence on the part of the Appellant that the disputed room and parlour were reserved for any incumbent Imam of Ndarabi Mosque to serve as official residence while the land around the mosque as stated above was for the upkeep of the Imam. The Imams of the mosque in the order of succession were not disputed by the parties. I hold that the room and parlour with the land around the mosque is for the use of the Imam of Ndarabi mosque and not for the Appellant or the Respondent and his family. No doubt, Ndarabi Compound is made up of smaller compounds like, Ile Patasin including where the land in dispute is located. This was acknowledged by the Respondent under cross examination. Further, I hold that the learned trial judge was wrong to have held that the Respondent as claimant proved his case and dismissed the Appellant s counter claim. Instead, I hold that the Respondent as claimant failed to prove his case whereas, the appellant as counter claimant established his entitlement to his claim. The third issue is resolved in favour of the Appellant. The resolution of issue one against the appellant does not affect the final outcome of the appeal. 28

32 The appeal is meritorious, I allow same. The judgment of the learned trial judge is set aside in its entirety; instead, I dismiss the Respondent s claim in its entirety and grant the reliefs sought by the Appellant/counter claimant. Having set aside the judgment of the trial Court, the Respondent s Notice will serve no purpose, I discountenance same. Parties are to bear their respective costs. HAMMA AKAWU BARKA, J.C.A.: I agree BOLOUKUROMO MOSES UGO, J.C.A.: I agree 29

33 Appearances: U.S. Imam For Appellant(s) S.A. Ayipo For Respondent(s)