ALHAJI FATAI ALANI MATANMI & ORS V. VICTORIA DADA & ANOR(2013)

ALHAJI FATAI ALANI MATANMI & ORS V. VICTORIA DADA & ANOR

In The Supreme Court of Nigeria

On Friday, the 8th day of February, 2013

SC.39/2004

JUSTICES

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

Between

ALHAJI FATAI ALANI MATANMI
2. ALHAJI ABUDU MATANMI
3. SUNDAY MATANMI Appellant(s)

AND

VICTORIA DADA
2. OLUFUNMILAYO DADA Respondent(s)
A. FABIYI, J.S.C (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Ibadan Division (‘the court below’ for short) delivered on the 10th day of May, 2001 in which the judgment of the Trial High Court sitting at Abeokuta, Ogun State of Nigeria, delivered on 29th November, 1985 was affirmed.
It is apt to state the relevant facts of the matter. The plaintiffs who are the respondents herein claimed in the trial court by writ of summons as follows:-
“1. Declaration to the effect that the plaintiffs are entitled to Certificate of Occupancy to the parcel of land situate and known as Ijari land in Ijoko Otta Railway Station, via Otta, Ifo/Otta Local Government Area, Ogun State.
2. The sum of N50, 000.00 (Fifty Thousand Naira) as special and general damages for the unlawful trespass by the defendant on the land between 15th and 22nd of November, 1980 by way of clearing the various cash crops and life crops and other properties of the plaintiffs on the land with the use of heavy caterpillar and bulldozers.
3. Injunction restraining the defendant his servants, agents or any other person acting for him from committing any further acts of trespass on the land.”
At the trial court, the parties exchanged pleadings and adduced evidence. The root of title of the plaintiffs, as pleaded, firmly rests on traditional history. The plaintiffs maintained that the parcel of land in dispute formed part of a larger tract of land settled upon by their ancestor, Ajari about 300 years ago. They maintained that Ajari came from Tigbo and settled on the land which was then a virgin land. Ajari built a hut and used the remaining area for farming.
As highlighted by the appellants, counsel in the brief of argument, P.W.1, the 1st plaintiff/respondent, testified that the land in dispute known as Ijari land formed portion of a large parcel of land which her ancestor Ajari acquired by settlement. She said no member of her family lived in Ijoko until their father went there to teach only in 1957. She also said that none of their family members has a house at Ijoko.
P.W. 4 gave evidence that the father of the Plaintiffs acquired the land by purchase; not by act of settlement as stated by P.W.1.
P.W.5 gave evidence of sale of land by the plaintiffs’ family to C.M.S Church in 1920. The court found the pieces of evidence given by this witness to be hearsay.
P.W.9 who is the Baale said his own predecessor founded Ijoko contrary to the assertion of P.W.1.
P.W.12, contrary to the evidence of P.w.1 testified that the land in dispute belongs to Ojomo and Ogundare families and is known as Elerinko.
The case of the defence as pleaded and testified upon was that the land in dispute formed part of a larger parcel of land which belongs to the Matanmi family of Ijoko. They testified that Ijoko was founded by Matanmi their great-grand father. They gave evidence leading to the chain of events and transmission of authority in the Ijoko land from their founder to the present generation of defendants. The defendants testified on acts of ownership on Ijoko land including the land in dispute as they sold, granted, conveyed and farmed on various portions of the Ijoko land.
Learned counsel for the appellants pointed it out that the defendants who are the appellants have no counter-claim. He submitted that the burden of proof squarely rests on the plaintiffs who must succeed on the strength of their case and not on the weakness of the defence (if any).
As stated earlier on, the claims of the plaintiffs rest on declaratory relief. I agree with the learned counsel that the plaintiffs must establish their claim on the strength of their case. They cannot place any reliance on the weakness of the defence; if any. The burden of proof on the plaintiffs in establishing their declaratory relief to the satisfaction of the court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendant where the plaintiffs fail to establish their entitlement to the declaration sought by their own evidence. See: Nwokidu v. Okaru (2010) 3 NWLR (Pt. 1181) 362, Dantata v. Mohammed (2002) 7 NWLR (Pt. 664) 176; Ekundayo v. Beruwa (1965) 2 NWLR 211 and Dumiez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt.1119) 361 at 373.
As noted by the learned counsel to the appellants, the learned trial judge at page 134 of the records took into account the serious contradictions in the case of the plaintiffs and found as follows:-
“However, in the face of contradictions in the evidence of the plaintiffs as to who found Ijoko, the mode of acquisition of the land in dispute by the plaintiffs’ family, the name by which the area is known and the family to which the land belongs, it cannot be said, in my view, that the plaintiffs have adduced cogent evidence of tradition to sustain the claim for a declaration of title… In addition to these we have the evidence of the 1st plaintiff himself (sic) that no member of her family ever lived in Ijoko until her father went to work there as a teacher in 1957. No member of the family has a house there, even now.”
Learned counsel for the appellants, observed that the above conclusion reached by the learned trial judge’ ought to have put paid to the claim of the plaintiffs in seeking declaration of title, as it is a clean evidence that the plaintiffs failed woefully to discharge the burden of proof on them. He maintained that rather than dismissing the case of the plaintiffs, the learned trial judge, strangely proceeded to consider facts in recent time which are nonexistent to determine which of the traditional evidence proffered more probable and thereafter entered judgment is for the plaintiffs.
The defendants then felt irked with the stance posed by the trial judge and appealed to the court below. The case of the appellants at the court below was that the plaintiffs did not prove their case to warrant a declaration of title being made in their favour. The appellants maintained that the trial judge, having rejected the case of the plaintiffs, ought to have dismissed their claim in its entirety. The court below heard the appeal and dismissed same. The defendants have now made a further appeal to this court; sequel to the leave granted on the 1st day of July, 2003 as can be seen on page 199 of the records. The Notice of Appeal contained six grounds of appeal.
Briefs of argument were filed and exchanged by the parties. On the 13th of November, 2012 when the appeal was heard, learned counsel on both sides of the divide adopted and relied on their respective briefs of argument. Learned counsel for the appellants urged that the appeal should be allowed while the learned counsel for the respondents urged that the appeal should be dismissed.
On behalf of the appellants the two issues couched for determination of the appeal read as follows:-
“(1) Whether the Court of Appeal and the trial court were not in error in resorting to facts in recent times to conclude that the plaintiffs proved their case when in actual fact plaintiffs, did not adduce any cogent evidence of tradition and when there was no conflict in traditional evidence neither was same” inconclusive. Grounds 1 and 2.
2. Whether plaintiffs proved their case (sic) to the land in dispute. Grounds 3, 4, 5 and 6.”
On behalf of the respondents the two issues decoded for determination of the appeal read as follows:-
“(1) Whether on the totality of the evidence adduced before the trial court as affirmed by the justices of the Court of Appeal, the plaintiffs/respondents have proved their title to the land in dispute.
2. Whether there is just cause for the Supreme Court to disturb the findings of fact made by the two lower courts in this case.”
Arguing issue 1, it was submitted on behalf of the appellants that in determining ownership of land, as in this matter on appeal, five means of proving title have become crystallized in our law. The cases of Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at 320 -321 and Idundun v. Okumagba (1976) 9 & 10 SC 227 were cited.
Learned counsel for the respondents made a similar submission when he maintained that the law is well settled that there are five recognised methods by which ownership of land may be established. He also cited the cases of Moses Uzochukwu & Ors v. M. Eri & Ors. (1997) 7 SCNJ 238 at 246-247; Idundun v. Okumagba (supra) at 248; Lawani Ali & Anr. v. Alesinloye (2002) 2 SCNQR (Pt. 1) 285 at 306.
It is now beyond argument, as it has been consistently held by this court without any equivocation that there are five ways of proving title to land. A claimant may rely on more than one mode of proving title; if so desired. However, one mode of proving title will suffice, if properly established to the satisfaction of the court. The five ways of proving title to land are:-
(a) Traditional evidence.
(b) Production of document of title.
(c) Proof of acts of ownership extending over a 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.
(d) Acts of long possession and enjoyment of the land.
(e) By proof of possession of adjacent land in dispute in such circumstances which render it probable that the owner of the adjacent land is the owner of the land in dispute.
The cases cited by both sides of divide as recounted above are clearly in point. For further reinforcement, I need to also refer to Ogunnaike v. Oluyemi (1987) 3 SC 215 and Atanda v. Ajani (1959) 3 NWLR (Pt. 111) 511.
In further arguing issue 1, learned counsel for the appellants observed that in proving their right of title to the land in dispute, the plaintiffs at the trial court, who ate respondents herein relied essentially on traditional history to show that the land in dispute form part of a larger tract of land which was settled upon by their ancestor-Ajari. It was further observed that the defendants who are the appellants herein also relied on traditional history to establish the fact that, the land in dispute form part of a larger tract of land which belongs to the Matanmi family of Ijoko.
Learned counsel for the appellants submitted that the position of the law has always been that where there are two conflicting sets of traditional history, it is not right to assess or determine first which of the two sets of traditional evidence is plausible or credible before reference is made or consideration is given to facts in recent time. He cited Popoola v. Adeyemo (1978) 1 NWLR (Pt. 66) 578 at 587. It was further submitted that, where traditional evidence adduced by the parties ate inconclusive, the court is enjoined to make resort to facts in recent years to determine which of the traditional evidence is more probable. The case of Kojo II v. Bonsie (1957) 1 WLR 1223 was cited.
Learned counsel for the appellants observed that the learned trial judge considered the traditional evidence given by the plaintiffs and rejected same. He felt that the rejection of the traditional evidence ought to have put paid to the case of the plaintiffs for declaration of title. He cited Odofin v. Ayoota (1984) 11 SC 72 at 106. He felt that it was incomprehensible that the learned trial judge who rejected the traditional evidence of the plaintiffs resorted to facts in recent years to determine which of the traditional pieces of evidence is more probable.
Learned counsel for the respondents herein who were the plaintiffs at the trial court submitted that the case of Kojo II v. Bonsie was correctly applied in the circumstances. He maintained that the trial judge passionately considered the traditional evidence given by the parties and adopted the correct approach which the Court of Appeal affirmed.
It hardly needs any gainsaying that the learned trial judge concluded specifically at page 134 of the records that the plaintiffs failed to adduce cogent evidence of traditional history to sustain the claim for a declaration of title. I shall restate the conclusion of the trial judge on the point as follows:-
“However in the face of contradiction in the evidence of the plaintiffs as to who founded Ijoko, the mode of acquisition of the land in dispute by the plaintiffs family, the name by which the area is known and the family to which the land belongs, it cannot be said, in my view, that the plaintiffs have adduced cogent evidence of tradition to sustain the claim for a declaration of title…”
I need to emphasise the point here that the position of the law on the effect of rejection of traditional evidence is as stated by this court in Odofin v. Ayoola (1954) 11 SC 72 at 106; (1984) NSCC (Vol. 15) 711 at 720 per Karibi-Whyte, JSC as follows:-
“It follows therefore that where traditional evidence of that alleged from which title is derived, is lacking or rejected, as was in this case, such evidence is not merely inconclusive but also cannot be relied upon whether any other acts positive or numerous can support evidence of ownership. The basic foundation, that is traditional evidence, having been rejected, there is nothing on which to found acts of ownership.”I strongly feel that since the trial judge found that the traditional evidence adduced by the plaintiffs was not cogent and reliable to sustain the claim for declaration of title, same has been found to be inconclusive. The plaintiffs’ action being one for a declaration of title to land, the burden of proof lies on them and they must succeed on the strength of their own case. See: Owoade v. Omitola (1985) 2 NWLR (Pt. 77) 413. The plaintiffs failed to discharge the burden of proof on them. I am of the view that the plaintiffs’ claim should have been dismissed at this point without any further ado.
To the appellants’ dismay, the trial judge went ahead to attempt to apply the Rule in Kojo II v. Bonsie (supra) as laid down by the West African Court of Appeal in coming to the conclusion that the plaintiffs were entitled to a declaration of title to the land in dispute and the court below affirmed same.
What then is the Rule in Kojo 11 v. Bonsie The Rule which has stood the test of time for quite sometime now is that where traditional evidence proffered by the parties are inconclusive, the court is enjoined to take into consideration facts in recent times given by the parties in order to determine which of the traditional evidence is more probable. To resort to the rule, the traditional evidence of the parties must be capable of being believed but that since the two are competing, a court cannot prefer one to the other. Rather, it is enjoined to look out for further facts in recent times to see which of the traditional history is more probable.
The finding of the trial judge that, there is no cogent evidence of tradition to prove the claim for declaration of title put steam out of the plaintiffs’ case. The court below felt that the trial court was right in the position taken by it. With respect, the court below was wrong. Indeed, the two courts below erred. The evidence of the plaintiffs that was rejected by the trial court had no chance of being tested under the Rule in Kojo II v. Bonsie (supra). The application of the Rule in the prevailing circumstance is not apt.
The court below at page 190 of the record stated as follows:-
“It is clear from the above findings of fact that the conclusion reached by the learned trial judge that no where did the learned trial judge reject the traditional evidence tendered by the plaintiffs in the entire judgment.”
Earlier in this judgment, it was pointed out that the trial judge at page 134 of the record rejected the traditional evidence tendered by the plaintiffs in clear terms. If the learned justices of the court below considered same, they would not have held that the learned trial judge did not reject the traditional evidence proffered by the plaintiffs. The court below goofed on the point and the stated conclusion is hereby set aside.
I need to further say a word or two on acts of ownership and possession strongly canvassed by the plaintiffs. The findings of the trial judge are, equally not helpful in advancing the cause of the plaintiffs in this respect. Again, at page 134 of the records, the trial judge stated as follows:-
“In addition to these, we have the evidence of the 1st plaintiff himself (sic) that no member of her family ever lived in Ijoko until her father went there to work as a teacher in 1957. No member of the family has a house there, even now.”
It is extant in the record of appeal that P.W.5 gave evidence of sale of land by the plaintiffs’ family to C.M.S church in 1920. The trial court found that the pieces of evidence given by the witness were hearsay. There was no testimony from any other witness that the plaintiffs’ family granted them any part of the piece of land. No member of their family has any house at Ijoko ‘even now’ to use the words of the 1st plaintiff herself. In the main, the trial court, having held that there was no credible evidence of tradition, there is nothing left to establish the case put up by the plaintiffs. Again, refer to Odofin v. Ayoola (supra) as well as Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263.
On the other hand, the defendants who are appellants herein, gave evidence which remain unchallenged that their family members have houses on the land; inclusive of that now in dispute which forms a part. D.W.5 testified in respect of houses belonging to eight (8) members of Matanmi family ‘located before and after the railway line.’ Unchallenged evidence is deemed to be correct and can be acted upon by the court. The case of Alfontrin v. Attorney-General Federation (1996) 9 NWLR (Pt. 475) 634 cited by the counsel to the appellants is of moment. See: also Omoregbe v. Lawani (1980) 3-4 SC 108 at 117, Faroso v. Beyioku (supra) at page 271.
It is my view that if the evidence with probative value as adduced by the parties in respect of acts of ownership and possession is put on an imaginary scale, same must tilt to the appellants’ side. Refer to Mogaji v. Odofin (1978) 4 SC 91 at 93; Bello v. Eweka (1981) 1 SC 101; Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101; Owoade v. Omitola (supra) and Adisa v. Ladokun (1973) 1 All NLR (Pt.2) 18.
Finally, the point relating to concurrent findings of the two lower courts should be pronounced upon, albeit, briefly. Learned counsel for the plaintiffs/respondents urged that this court should not interfere with same. He felt that the findings of the trial court which were affirmed by the court below were properly made.
It is basic that an appellate court will not interfere with findings of fact except where wrongly applied to the circumstance of the case or conclusion arrived at was patently perverse or wrong. See: Nwosu v. Board of Customs & Excise (1955) 5 NWLR (Pt. 93) 225; Nneji v. Chuhwu (1996) 10 NWLR (Pt. 378) 265.
An invitation to this court to upset concurrent findings can only be justified when such findings do not relate to any evidence on record or substantial error is manifest in the proceedings/decision or the findings cannot be supported having regard to evidence before the court. Refer to Alakija v. Abdulai (1988) 6 NWLR (Pt. 552) 1; Ogbu v. Wokoma (2005) 14 NWLR (Pt. 944) 118 at 140.
It appears to me that the concurrent findings of the two lower courts are caught up by certain elements listed above and such would warrant an intervention by this court by virtue of its undoubted powers as dictated by section 22 of the Supreme Court Act.
As clearly pointed out in this judgment, the trial judge rejected the plaintiffs’ traditional evidence as being unreliable. Instead of putting the claim of the plaintiffs to an end by dismissing same in tune with the stand of this court in Odofin v. Ayooia (supra), it went on to wrongly apply the Rule in Kojo II v. Bonsie which was not apt. The plaintiffs had nothing to show in respect of acts of ownership and possession to enter judgment for them. The trial judge’s action has the semblance of a ‘comedy of errors’. The court below goofed when it found that the trial court did not reject the traditional evidence of the plaintiffs. It erred when it affirmed the application of the Rule in Kojo II v. Bonsie to tilt undeserved judgment in favour of the plaintiffs. To my mind, the concurrent findings of the two lower courts are not sustainable. I have a duty to interfere and in tandem with the authority given in section 22 of the Supreme Court Act, I so do.
I come to the final conclusion that the appeal is meritorious. It is hereby allowed. The judgment of the court below is set aside. The plaintiffs/respondents’ claim before the trial court rests on a shifting sand. It is hereby dismissed. The respondents shall pay N50,000.00 costs to the defendants/appellants.

I. T. MUHAMMAD, J.S.C: I read before now the judgment of my learned brother, Fabiyi, JSC. I agree with him that the appeal is full of merit and it should be allowed.
I allow the appeal and abide by consequential orders contained in the lead judgment including order as to costs.

MARY UKAEGO PETER-ODILI, J.S.C, CFR: I am at one with the judgment just delivered by my lord, J. A. Fabiyi JSC and would put across some comments in support.
This is an appeal against the judgment of the Court of Appeal Ibadan Division coram: Akintan, Adamu and Tabai, JJCA delivered on the 10th day of May 2001. The appellants being dissatisfied with the judgment appealed to this court by leave of the court.
BACKGROUND FACTS
The respondents as plaintiffs in the trial court by their Writ of Summons made the following claims, viz:
1. Declaration to the effect that the plaintiffs are entitled to Certificate of Occupancy to the parcel of land situate and known as Ijari land in Ijoko Otta Railway Station, via Otta, Ifo/Otta Local Government Area, Ogun State.
2. The sum of N50, 000.00 (fifty thousand naira) as special and general damages for the unlawful trespass by the defendant on the land between 15th and 22nd of November, 1980 by way of clearing the various cash crops and life crops and other properties of the plaintiffs on the land with the use of heavy caterpillar and bulldozers.
3. Injunction restraining the defendant, his servants, agents or any other person acting for him from committing any further acts of trespass on the land.
In summary, the case of the plaintiffs now respondents is that the parcel of land for which they sought declaration of title to formed part of a larger tract of land settled upon by their ancestor, Ajari about 300 years ago after deforesting. That Ajari built a hut on the land and used the remaining area for farming. In other words, the claim was rooted in traditional history.
The defendants’ version is the transmission of authority in the land from the first founder Matanmi, their great grandfather up to the present generation of the defendants. That the Matanmi family in exercising their right of ownership on Ijoko land, including the land in dispute sold, granted, conveyed and farmed on the various portions of the land.
The plaintiffs called 13 witnesses while defendants called 11 witnesses and the trial judge even though rejecting the traditional history of the plaintiffs as not proved for title, awarded plaintiffs judgment based on recent acts of possession. It is for that reason that the defendants appealed to the Court of Appeal on the basis that what was on ground showed the plaintiffs not discharging the burden of proof of title and the matter ought to have been dismissed. The Court of Appeal also went along the grant of the trial court and dismissed the appeal hence this recourse to the Supreme Court.
At the hearing of the appeal on 13/11/12, the appellants adopted their brief being filed on 12/5/04 which had been settled by H. O. Afolabi. In the brief were formulated two issues for determination which are:
1. Whether the Court of Appeal and the trial court were not in error in resorting to facts in recent times to conclude that plaintiffs proved their case when in actual fact, plaintiffs did not adduce any cogent evidence of tradition and when there was no conflict in traditional evidence, neither was same inconclusive.
2. Whether the plaintiffs proved their case to the land in dispute.
The respondents, through learned counsel on their behalf adopted their brief settled by Chief D. B. Babajide, filed on 1/11/05 and deemed filed on 18/10/06. In the brief were framed two issues for determination which are as follows:
1. Whether on the totality of the evidence adduced before the trial court as affirmed by the Justices of the Court of Appeal, the plaintiffs/respondents had proved their title to the land in dispute.
2. Whether there is just cause for the Supreme Court to disturb the findings of fact made by the two lower courts in this case.
The issues as couched by the counsel on either side are in effect raising the same questions and are similar in content and could be taken together. I see it as simpler and convenient to utilize the issues of the appellants and together.
For the appellants was contended that the position of the law has always been that where there are two conflicting sets of traditional history, it is not right to assess or determine first which of the two sets of traditional evidence is plausible or credible before reference is made or consideration is given to the fact in recent years. That where the traditional history adduced by the parties is inconclusive, the court is enjoined to make resort to facts in recent years to determine which of the traditional evidence is probable. That the learned trial judge having considered the traditional evidence given by the plaintiffs and rejected same that should have put paid to the case of the plaintiffs for declaration of title. He said the trial judge should not have resorted to facts in recent years to determine which of the traditional pieces of evidence is not probable. He referred to Popoola v. Adeyemo (1987) 1 NWLR (Pt. 66) 578 at 587; Kojo v. Bonsie (1957) 1 WLR 1223.
Learned counsel stated on for the appellants that the Court of Appeal was in error in saying the trial court did not reject the traditional evidence. That there was no basis for the use of the evidence of recent event. He cited Odofin v. Ayoola (1994) 11 SC 72 at 106.
He said that a declaration or claim of title to land can be established by proving acts of ownership or long possession on the part of the claimant. That the possession envisaged by the law is one which extends over a considerable length of time. That the case of possession cannot be considered in isolation of the pleadings and traditional evidence relied on by the plaintiffs. The traditional evidence would link the acts of possession if any from the time of Ajari to Aiye, Onolakore, Ogunbiyi Dada which periods were beyond living memory. That if there was no credible evidence of tradition, then nothing is left to establish the case. He relied on Odofin v. Ayoola (1984) 11 SC 72 at 106; Fasoro v. Beyioku (1980) 2 NWLR (pt. 76) 263.
It was further submitted for the appellants that unlike the plaintiffs who had not lived or built any house at Ijoko to demonstrate that they are the ones in occupation of the land in dispute, the defendants had shown by credible and unchallenged pieces of evidence over and above the Matanmi family land at Ijoko of which the disputed land is only a part to show that the land belong to them. That if the numerous acts of ownership are placed on the imaginary scale, the case of the defendants/appellants is more probable than that of the plaintiffs/respondents.
In response, learned counsel for the respondents said a dispassionate consideration of the claim, pleadings and evidence of the plaintiffs and their witnesses as confirmed by the Court of Appeal will show that the plaintiffs/respondents proved their title to the land in dispute in any of the five recognized ways of proving title to land. That there was conflict in the version of the traditional histories given by the parties and in this instance the recourse for the court was facts in recent years to determine which of the traditional history is more probable. He cited Kojo v. Bonsie (1957) 1 WLR 1223; Layinka v. Makinde & ors (2002) 10 NSCQR (Pt. 2) 644 at 652.
That the trial court was right to have applied the principle in Kojo v. Bonsie (supra) and the Court of Appeal correct in affirming what that court of trial did.
Learned counsel said there is no basis on which these concurrent findings of the two lower courts can be interfered with. He referred to Akeredolu v. Akinremi (1998) 3 NWLR (pt. 108) 64; Oladele & ors v. Anibi (1998) 7 SCNJ 24 at 29.
It seems to me necessary to quote the salient portion of the judgment of trial judge in relation to his findings and conclusion which are as follows:
“However in the face of contradiction in the evidence of the plaintiffs as to who founded Ijokoo the mode of acquisition of the land in dispute by the plaintiffs family, the name by which the area is known and the family to which the land belongs, it cannot be said, in my view, that the plaintiffs have adduced cogent evidence of tradition to sustain the claim for a declaration of title….. In addition to these, we have evidence of the 1st plaintiff herself that no members of her family ever lived in Ijoko until her father went to work there as a teacher in 1957, no member of the family has a house there, even now.”
From these snippets of the trial judge’s summation from his findings it is evident that the Court of Appeal was in error in the interpretation it gave to what the trial court did in relation to the traditional history evidence as proffered by the plaintiffs/respondents. That is to say that the trial judge in effect found the traditional history report of the plaintiffs unacceptable and nothing to sustain any assertion of recent time acts of possession so as to come within the principle embedded in Kojo v. Bonsie (1957) 1 NLR 1223 which prescribed that where the traditional evidence from which the title is said to be derived is insufficient or rejected, it is taken that the evidence of traditional history is inconclusive and in this instance where nothing supports acts positive or numerous which can be taken as evidence of ownership then there is nothing left on which ownership can be based. I place reliance on Odofin v. Ayoola (1984) 11 SC 72 at 106 per Karibi -Whyte JSC.
Furthermore, I cannot resist reiterating the principle applied again and again that a plaintiffs action being one for a declaration of title to land, the burden of proof which is on the preponderance of evidence lies squarely on the plaintiffs who must succeed on the strength of their own case and not anchored on the weakness of the defendants’. Placed in con to the case in hand the plaintiffs/respondents’ case is indeed weak and it cannot be said the appellants’ was not strong either since it is not an excuse in the discharge of the burden of proof on the plaintiffs. See Owoade v. Onitola (1998) 2 NWLR (Pt.77) 413.
From the above and the fuller reasoning in the lead judgment, I allow the appeal, set aside the judgment of the court below and order a dismissal of the plaintiffs’ case which the trial court should have done.
I abide by the consequential orders in the lead judgment.

OLUKAYODE ARIWOOLA, J.S.C: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Fabiyi, JSC. I agree entirely with the reasoning therein and the conclusion arrived thereat.
However, I shall chip in a few words. Having rejected the root of title of the respondents who were the plaintiffs, which was hinged on traditional history, the trial court had no business considering other means or ways of proving title to the land. Their claim ought to have been thrown back at them.
The court below therefore missed the point when in the face of the available printed records, it said that the trial court did not reject the traditional history or evidence adduced by the plaintiffs/respondents, and proceeded to award the claim to the respondents to which they were not entitled.
Ordinarily, as this court has long established, an appellate court would not normally descend into arena of contest to usurp the functions of the trial court. See; Chief Odofin V. Isaac Ayoola, (1984) 11 SC 72 per Oputa, JSC. In that case supra it was also held that where a trial court, which saw and heard witnesses has come to specific findings of fact on the evidence in issue before it, an appellate court which had no similar opportunity should refrain from coming to a different finding, unless it can show that the conclusion of the trial court was perverse, or that the conclusion could not flow from the evidence before it. See; Lucy Onowan & Ors V. Iserhein (1976) 1 NWLR, 263, Federal Commissioner of Works & Housing V. Lababedi & 5 Ors (1977) 11-12 SC 15 per Karibi-Whyte, JSC at page 22.
It is trite law that a declaratory judgment is discretionary. It is the form of judgment which normally should be granted but only in circumstances in which the court is clearly of the opinion that the party seeking it, is, when all available facts are taken into consideration, fully entitled to the exercise of the court’s discretion in his favour. See; Odofin V. Ayoola. (supra).
However, where traditional evidence adduced by the claimants as plaintiffs to support their claim to title to the land in dispute is rejected by the trial court, as was done in the instant case, such evidence which had been so rejected cannot only be merely inconclusive but would be so unreliable and therefore cannot be relied upon to support any other way of proving ownership.
In the circumstance, I am of the firm view that the concurrent findings of the two courts below were not based on solid ground. In other words, there was perversion which calls for interference of this court.
Accordingly, as beautifully and fully adumbrated by my learned brother in the lead Judgment, I too consider this appeal meritorious and substantial and should be allowed. I allow same.
I abide by the consequential orders inclusive of that on costs.

KUMAI BAYANG AKA’AHS, J.S.C.: I was privileged to read in draft the judgment of my learned brother, FABIYI JSC in which he allowed the appeal and set aside the decision of the lower court. I agree with his reasoning and conclusion.
The plaintiffs, Samuel Dada and Victoria Dada took out a writ of Summons for themselves and on behalf of Emmanuel and Samuel Dada family of Otta against Alhaji Alani Matanmi in the High Court of Ogun state, Ilaro Judicial Division in Suit No.HCL/65/80. The plaintiffs’ claims as endorsed on the writ were:-
1. Declaration to the effect that the plaintiffs are entitled to Certificate of Occupancy to the parcel of land situate and known as Ijari land in Ijoko Otta Railway Station, via Ifo/Otta Local Government Area, Ogun State.
2. The sum of N50,000 (Fifty Thousand Naira) as special and general damages for the unlawful trespass by the defendant on the land between 15th and 22nd of November, 1980 by way of clearing the various cash crops and life crops and other properties of the plaintiffs on the land with the use of heavy caterpillar and bulldozers.
3. Injunction restraining the defendant, his servant, agents or any other person acting for him from committing any further acts of trespass on the land.
Annual rental value of the land is N20.00. The writ was accompanied with an application
‘for an order restraining the defendant, his agents, servant, privies or any other person through him from selling any part of the land in dispute or making further destruction of the land or constructing any structure or do any other things that wilt change further the nature of the land in dispute in the action herein until final determination of the case before this Honourable Court and for such further order or orders as this Honourable Court may deem fit to make in the circumstances”.
On receipt of the processes filed, the defendant deposed to a counter – affidavit in which he stated in paragraphs 4 and 8the following facts:
“4. That I do not own any land at all but my family, the Matanmi family own a large parcel (sic) of land at Ijoko in Ogun State of Nigeria.
8. That as stated in paragraph 4 above I cannot sell the family land although I am one of the attorney to the said land”
He also brought an application dated 7th day of April, 1983 seeking an order joining Alhaji Abudu Matanmi and Sunday Matanmi as co-defendants and extension of time to file and serve the statement of Defence and plan in this matter (See page 24 of the records).
The application was granted on 26th July, 1983 despite opposition by the plaintiffs.
On the death of Samuel Dada on 21/7/84 an application to substitute his name with Olufunmilayo Dada, his daughter was filed on 14th February, 1984 (see page 52 of the records). It was taken and granted on 28th day of March, 1984 (page 62 of the records). The said Olufunmilayo became the 2nd plaintiff in the suit.
The plaintiffs staked their claim to the land on their ancestor, Ajari who settled there nearly 300 years ago. Their pleading in paragraphs 7, 8 and 9 of the statement of claim bring out this fact. In the said paragraphs the plaintiffs averred as follows:-
7. Ajari the great ancestor of the plaintiffs settled on a large area of land part of which is the land in dispute at Ijoko Otta over 300 years ago. One Kuti Elerinko also came from Tigbo at about the some time to settle side by side with Ajari
8. Ajari came from Tigbo and settled on the land which was then a virgin land. He built a hut on the land and used the remaining area for farming and he planted crops like Kola (Abata) and (Gbanja), maize, coconut, banana-and plantain, oranges, and all kinds of cash crops therein.
9. Ajari and his descendants use (sic) the land from time to time exercising undisturbed right of ownership on it until the time when the defendants came to devastate the land”.
The plaintiffs traced the origin of the defendants to one Awa, a slave woman who was married to Olaegbo an in – law to the Erinko family and they gave birth to Arupe who also bears Matanmi.
Since the plaintiffs traced their root of title to the land to settlement by their ancestor, Ajari, the evidence adduced by their witnesses should fall in line with traditional history to show how the land devolved from Ajari right to the present day occupants i.e the plaintiffs. Any evidence showing the land was purchased or granted to the ancestors of the plaintiffs by another person will be inconsistent with the pleadings. PW4 s evidence runs contrary to the statement of claim. He said that Teacher Dada bought the land. He was presumably referring to the plaintiff who was substituted by Olufunmilola Dada’ PW9, who is 80 years old and had been the Bale of Ijoko said the land in dispute belongs to the Dada family. Under cross – examination, he was rather ambivalent. Although he could tell the history of Ijoko, he could not say who founded Ijoko. He ended by stating that it was Bale Ogunsina who founded Ijoko’ PWI2 on his part stated that the land in dispute belongs to Ojomo and Ogundare families and it is known as Elerinko land and the Dada family are descendants of Elerinko. But paragraph 7 of the of the statement of claim did not show any relationship between Kuti Elerinko and Ajari apart from the fact that they both migrated from Tigbo and settled side by side each other at Ijoko. The learned trial Judge reviewed the evidence called by the parties and made the following findings at page 134 of the records:
“However in the face contradictions in the evidence of the plaintiff as to who founded Ijoko, the mode acquisition of the land in dispute by the plaintiff family, the name by which the area is known and the family to which the land belongs, it cannot be said, in my view, that the plaintiff have adduced cogent evidence of tradition to sustain a declaration of title as decided in Frempong vs Brempongs 14 WACA 13 and Adedibu vs Olofa (1968) NMLR 462. In addition to these, we have the evidence of the 1st plaintiff herself that no member of her family ever lived in Ijoko until her father went to work there as a teacher in 1957; no member of the family has a house there, even now”
I agree with my learned brother Fabiyi JSC in adopting the views of Karibi – Whyte JSC who stated the position of the law regarding the rejection of traditional evidence in proof of declaration of title where he stated in Odofin vs Ayoola (1984) 11 SC 72 at 105 – 106 thus:
“It is well settled that where a plaintiff relies on grant or original settlement as title to claim the land in dispute, the burden is on him to establish such grant or original settlement – this he can do by cogent aid acceptable evidence of tradition, whether or not accompanied by exercise of dominion which alone may be sufficient to establish title – See: Alade vs Awo (1975) 4 SC 215, 228; Idundun vs Okumagba (1976) 1 NMLR 200 at page 210, Iba Oluyole v. Olofa (1968) NMLR 462. Or where evidence of tradition is inconclusive, by giving evidence of positive and numerous acts of ownership over the disputed land – See: Abudu Karimu vs Daniel Fajube (1968) NMLR 151, Olujebu of Ijebu vs Oso, Eleda of Eda (1972) 1 All NLR (Part 2) 93, Ekpo vs Ita 11 NLR 68, Otuah Akpapuna & 3 Ors vs Obi Nzeka & 3 Ors. (1983) 7 SC 1. It follows therefore that where traditional evidence of that alleged from which title is derived, is locking or rejected, as was in this case, such evidence is not only merely inconclusive but also cannot be retied upon whether any other acts positive or numerous can support evidence of ownership. The basic foundation, that is traditional evidence, having been rejected, there is nothing to found acts of ownership”.
This is what happened in the instant appeal. The plaintiffs sought for declaration of title to the disputed land based on settlement by their ancestor Ajari. The evidence which they adduced was conflicting and it was rejected. That should have ended the case but the trial Judge did not stop there. He explored other acts of ownership. He found that members of the plaintiffs’ family (including their grandfather Ogunbiyi Dada) planted crops on the land and the plaintiffs agent who testified as PW8 also cultivated the land. He believed the evidence and proceeded to hold that the evidence satisfies the test laid down in Ekpo v. Ita supra and proceeded to enter judgment for the plaintiffs. The appeal lodged by the defendants was dismissed and the decision of the trial Judge was affirmed. The defendants have further appealed to this Court and the plaintiffs/respondents have submitted that this court should not disturb the concurrent findings of fact. This Court must interfere to avert miscarriage of justice. If the evidence adduced by the plaintiffs/respondents was merely inconclusive and not rejected, there would have been a leeway. Since the trial Judge rejected the evidence, the test in Ekpo v. Ita supra and Kojo vs Bonsie (1957) 1 WLR 1223 cannot apply.
In the final analysis the appeal has merit and it is allowed. The decisions of the learned trial Judge which was affirmed by the lower court is hereby set aside and the plaintiffs’ claim for declaration of title is accordingly dismissed. I abide on the order on costs made in the lead judgment of my noble Lord Fabiyi, JSC.