AYODELE & ANOR v. ONIGBEPA (2020)

AYODELE & ANOR v. ONIGBEPA

(2020)LCN/14075(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Wednesday, March 18, 2020

CA/EK/67/2018

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

1) REMIGIUS AYODELE JOHN AYODELE 2) JOSEPH AYODELE (For And On Behalf Of Ogunkolade Family Of Oke-Ese, Ado-Ekiti, Ekiti-State) APPELANT(S)

And

CLEMENT OSO ONIGBEPA RESPONDENT(S)

RATIO

WAYS OF ESTABLISHING TITLE TO LAND IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju v. Ezuka (1994) LPELR-1851(SC) Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (Pt 1225) 653.
As was submitted by the Appellants, fundamental legal prerequisites to prove title to land have been well articulated by the Courts, with a foremost authority found in the case of AJIBULU V AJAYI (2014) 2 NWLR (Pt 1392) P.483 at 500 paras D-G. wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (Pt 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (Pt 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (Pt 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (Pt 1) 126; Balogun v Akanji (1988) 2 S.C. 199.
Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (Pt 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (Pt 1146) 225.
In proving title, claimants must rely on the strength of their case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (Pt 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (Pt 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989) LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment. PER AKINBAMI, J.C.A.

WHETHER OR NOT DECLARATORY RELIEF IS A DISCRETIONARY REMEDY

The law is settled that a declaratory relief as in the present case is a discretionary remedy which is not granted as a matter of course, and the Court must be satisfied before granting it, that the claimant has a strong and cogent case, both from his statement of claim, and from the evidence he adduced in support of same. The claimant must satisfy the Court that under all circumstances of the case, he is fully entitled to the discretionary relief in his favour, when all facts are taken into consideration. See Odofin v Ayoola (1984) 11SC 72; Makanjuola v Ajilore (2001) 12 NWLR (Pt 727) 416 at 437. Therefore the Appellants in this case have the onus to prove by credible evidence that they are entitled to the declaration of title being sought, and they must succeed on the strength of their case. It is trite that an action for declaration of title as in this case can only succeed, where the claimants proved their ownership of the land in dispute. See Titiloye v Olupo (1991) 7 NWLR (Pt 205) 519. PER AKINBAMI, J.C.A.

THE PRIMARY DUTY OF THE TRIAL JUDGE

The law is firmly settled to the effect that it is the primary duty of the trial judge who saw and heard the witnesses who gave evidence in a case before him and watched their demeanors in the witness box, to perceive and evaluate those pieces of evidence. The making of finding of facts involves both the perception and evaluation of evidence. Mainagge v. Gwamma (2004) 14 NWLR (pt.893) 323 at 330 (SC); NACENN Nig Ltd v. Bewac Automotive Producers Ltd (2011) LPELR – 8125 (SC). The law also is well settled that generally, it is not the duty of the Appellate Court to evaluate evidence proffered at the trial Court. However, where the trial Court failed to do a proper evaluation from the proved and established facts, the Appellate Court will step in and do the evaluation of the evidence contained in the record of appeal. Odutola v. Mabogunje (2013) 7 NWLR (pt.1354) 522 at 548, 553 (SC); Adebayo v. People’s Democratic Party and Ors (2013) All FWLR (pt.695) 203 at 265-266 (SC). PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ekiti-State, Ado-Ekiti Judicial Division delivered on 13th November, 2014, by Hon. Justice J.O. Adeyeye, dismissing the claims of the Appellants.

The Appellants (as Claimants before the lower Court ) filed a Writ of Summons and Statement of Claim on 5th August, 2008, at the lower Court wherein Appellants claimed against the Respondents as follows:-
A) A declaration that the members of Ogunkolade family of Oke-Ese, Ado- Ekiti, Ekiti-State are entitled to the statutory Right of Occupancy over a large piece of land lying, being and situate at Ogunkolade family farmland, Araromi Camp, along Ado-ljan Road, Ado- Ekiti, Ekiti State.
B) An order of forfeiture of the customary tenancy on the defendants for their affront and challenge to the title and ownership of the plaintiffs.
C) Ten Million Naira (N10,000,000.00) only being general damages for forfeiture from 13th June, 2001, till defendants yield up possession and occupation of the entire Ogunkolade family land now in disputed. Pleadings were duly filed

and exchanged by counsel to both parties. Hearing commenced in the suit on 29th April, 2014, with the Appellants calling four witnesses. The Respondents opened their defence on the same date. At the close of hearing, both counsel adopted their written Addresses on the 28th October, 2014. Judgment was delivered on the 13th day of November, 2014, in favour of the Respondent. After the said judgment and before filing the Notice of Appeal, the first defendant at the trial Court passed on leaving only the second defendant in this Appeal. The Record of Appeal was filed in respect of the only surviving defendant in the suit. Dissatisfied with the decision of the lower Court, Appellants filed their Notice of Appeal at the Registry of the lower Court on 23rd January, 2018 in pursuant to the Order of the Court of Appeal made on 16th, day of January,2018.

FACTS OF THE CASE
The Appellants instituted the action in a representative capacity for and on behalf of the Ogunkolade family of Ado-Ekiti, Ekiti State. This action was therefore fought by the members of the said Ogunkolade family. The land now in dispute is situate, lying and being at Araromi Camp, along

Ado-lsan Road, Ado-Ekiti, Ekiti State and it is bounded as follows:-
A) At the front by Ado-Ekiti tarred Road,
B) At the back by the land of ljan people
C) On the Ado side by the land of Ado Ayegunle people and
D) On the ljan side by the land of ljan people.
The land in dispute belongs exclusively to the Ogunkolade family and they gave the genealogy of their forefathers/unbroken chain of the founders as follows:-
1) Ogunmuyiwa founded the said land.
2) Ogunmuyiwa begat Ogunkolade.
3) Ogunkolade begat Ayodele.
4) Ayodele begat claimants/appellants and their other siblings.

It is further contended by the Appellants that the Respondent is their customary tenant in respect of a small portion of the said land in dispute. The said small portion of the said land having been given to the Respondent by members of the Appellants’ family to farm on and cultivate as their in-law, having married their daughter called Farinola. Appellants also contended and stated in their pleadings and evidence on record that their Ogunkolade family instituted the suit as a result of the Respondent’s affront and challenge to

their control, ownership and possessions of their aforesaid family land. The Respondent on his part denied been customary tenant to the Appellants, but stated that the Alarienrin family of Oke-lla, Ado-Ekiti State owned the said large piece of land. In his pleadings, and evidence in one breath, claimed that the Alarienrin family of Oke-lla, Ado-Ekiti, Ekiti State owned the said land now in dispute, and he is therefore, their customary tenant. On the other hand, Respondent claimed to be related to Alarienrin family through maternal grandfather, but he only gave the names of his mother as late Ajayi Omoyelade, a direct daughter of Oyewamide, the son of Alarienrin Atoki. The lone witness for the respondent stated in the pleading, and in his evidence on record that the late Ajayi Oloja Ese Ogunkolade Appellants’ progenitor/forefather was also his maternal grandfather, and therefore related to the Appellants in this Appeal. However, Mr. Clement Oso Onigbepa, as the lone witness for the Respondent admitted that it is only members of the Appellants’ family that have their buildings, structures, huts and farm settlements on the large piece of land in

dispute, and the members of Alarienrin family of Oke-lla, Ado-Ekiti, Ekiti State do not have buildings, ancient structures, huts and farm settlements on the said land. Those were the issues that gave rise to this Appeal. At the conclusion of hearing, the learned trial judge in a judgment delivered on the 2nd day of May, 2017, dismissed the case of the Appellants.

Dissatisfied with this judgment, the appellants appealed to this Court by a notice of appeal dated and filed on the 23rd day of January, 2018.
It contained four grounds of appeal as follows:
GROUND 1
The learned trial judge erred in law when he dismissed Appellants (Claimants) Claims before the Court on the ground of failure to adduce sufficient proof in support of their traditional history to the land.
GROUND 2.
The learned trial judge erred in law when he dismissed the Appellants Claims before the Court on the ground that the Appellants have failed to plead and prove that the Respondent is their customary tenant on the land in dispute, in spite of the incidences of customary tenancy in the pleadings and evidence on record.
GROUND 3
The learned trial judge erred

in law when he departed from Exhibit C4, and most particularly Exhibit C5, which binds the Lower Court, and thus, dismissed the Appellants’ claims on ground of abuse of Court process.
GROUND 4
The decision is against the weight of evidence.

Whereof the appellants urged the Court to allow this appeal and set aside the judgment of the lower Court.

At the hearing of the appeal, Sunday Ochayi Esq., of counsel adopted the appellants’ brief dated and filed on the 10th day of June, 2019, as his legal arguments in support of this appeal.
In it, counsel raised (4) issues for determination by this Court as follows:
a) whether the learned trial judge properly evaluated the pleadings and evidence of the parties, and their witnesses on record, particularly with respect to their traditional histories before arriving at its decision ? Ground 1.
b) whether the learned trial Court was right to have held that the appellants have failed to plead and prove that the Respondent is their customary tenant on the land in dispute inspite of the incidences of customary tenancy in the pleadings and evidence on record? Ground 2.

C). Whether the learned trial judge properly considered Exhibits C4 and C5 before arriving at its decision? Ground 3.
D). Whether the judgment of the learned trial judge was not against the weight of evidence adduced before the trial Court. Ground 4.

The Respondent on his part formulated a sole issue for determination:-
“Going by the totality of evidence on record whether the trial Court was right in law to dismiss the Appellants’ claims.”

Upon a very careful consideration of the issues raised by the parties, I am of the view that the Appellants’ issues encapsulates the Respondent’s issue, l would resolve this appeal on Appellants’ issues.

Issue 1
“Whether the learned trial judge properly evaluated the pleadings and evidence of the parties and their witnesses on record, particularly with respect to their traditional histories before arriving at its decision?”

In arguing issue 1, Sunday Ochayi, learned counsel for the Appellants started by stating that parties are bound by their pleadings, as well as the evidence on record. That pleadings are written statements of the

parties in an action begun by Writ of Summons, which are served by each party in turn on the other, setting forth in a summary form, the material facts on which each relies in support of his claim or defence, as the case may be.

Pleadings provide the legal basis for judgment which must be confined to the matters on which issues have been joined. Since pleadings define and delineate the contours of the dispute between the parties, oral and documentary evidence must be consistent with the pleadings. The case of the parties is erected by the pleadings and parties do not have the freedom to roam around outside the pleadings in search of a better case. See the cases of Oladipo v MobaL.G.A (2010) 5NWLR (Pt1186) page 117 at 176 para B-H and paras D-E.; Okoko v Dakolo (2006) 14 NWLR (pt 1000)p 401 at 436 para E-F. C) Olufosoye v Olorunfemi (1989) 1 NWLR (Pt 95) 26.

Learned counsel contended that Appellants are entitled to their reliefs as stated in their Writ of Summons, and Statement of Claim upon the facts and documentary evidence on record. He referred to Sections 131(1) and 132(1) and (2) 134, 136 (1) and 140 of the Evidence Act, CAP E14, 2011 and

the cases of Olusola v Trust House Propt Ltd (2010) 8 NWLR (PT. 1195) P1 and Ayorinde v Sogunro (2012) 11 NWLR (PT. 1321) Page 460. It was the contention of learned counsel that in an action for declaration, coupled with forfeiture of customary tenancy, Appellants must plead and prove his/their titles and ownership of the said land in dispute. Appellants must first establish their title, and ownership of the land in dispute before a claim for forfeiture of customary tenancy can lie. The ownership of the said land in dispute can be proved by any of the five established ways. See the cases of Kano v Maikaji (2011) 17 NWLR. (Pt 1275) P.139 at 182-183 parasG-A. Dim v Enemuo (2009) 10 NWLR (Pt 1149) P.353.; Ajibulu v Ajayi (2014) 2 NWLR (Pt 1392) P. 483 at 500 paras D-G.; Iseogbekun v Adelakun (2013) 2 NWLR (Pt 1337) P.140 at 164 paras F-H.; Mkpinang v Ndem (2013) 4 NWLR (Pt 1344) P.302 at 312-313 paras H-C; Idundun v Okumagba (1976) 10 SC Page 277.

Learned counsel further contended that, from pages 3-7, 291-293 and 305-308 of the Record of Appeal, the statement of claim and oral evidence adduced through their PW1, PW2, PW3 and PW4, it is well established that the

Appellants are the original owners of the large piece of land in issue. To reiterate his point, learned counsel referred to paragraphs 8, 9, 10 ,11, 12, 18 of the statement of claim, and the evidence in respect of the paragraphs, which the Respondent did not controvert during cross examination of the Appellants’ witnesses. Counsel cited the cases of lnterdrill (Nig) Ltd v UBA PLC (2017) 13 NWLR (Pt. 1581) page 52 at 75 paras E-G; Kayili v Yilbuk (2015) 7 NWLR (Pt. 1457) P26 at 57 -58 para H-A.

It was submitted by learned counsel that on pages 126-143 of the record, the parts of Appellants’ pleadings reproduced in paragraphs 17,18,19,20,23,49 and 62 of the evidence in chief of the 3rd Appellants’ witness, as well as paragraphs 16, 17, 18 19 , 39 and 43 of the 1st Appellant’s evidence in chief, clearly proved appellants’ traditional history to the land in dispute. In prove of paragraph 18 of the statement of claim, Appellants tendered Exhibits C6i to C6vii and C7i to C7vii which evidenced Buildings, permanent structures and food crops of the Appellants’ family members on the said land. It was reiterated by learned

counsel that, the Appellants have been able to plead and prove their ownership and title to the land now in dispute, by traditional history/evidence as reflected in paragraphs 10 and 11 of the statement of claim and paragraphs 49 and 50 of the evidence of PW3, and paragraphs 17 and 18 of the evidence of PW1 in chief. Learned counsel reiterated the fact that the evidence of Respondent’s sole witness supports Appellants’ case, he therefore urged this Court to allow the appeal. He relied on the cases ofAjibulu v Ajayi (2014) supra; Dada v Williams (2013) 2 NWLR (Pt. 1338) P. 260 at 276 para B-C and Akinola v Oluwo (1962) 1 SCNLR p. 352. Learned counsel reiterated the fact that by paragraphs 49, 50, and 51 of the evidence in chief of the PW3, Appellants have successfully pleaded and proved their genealogical trees/founders of the said land. He urged this Court to so hold. He referred to the cases of Anyafulu v Meka (2014) 7 NWLR (Pt. 1406) p. 396 at 416 paragraphs D-F; Alikor v Ogwo (2010) 5 NWLR (Part 1187) p. 281 and Ajibulu v Ajayi (2014) supra at p. 500 para C. Learned counsel submitted that the Appellants in their pleadings and evidence on record

testified and gave evidence of;
1) who founded the land,
2) how the land was founded and
3) the particulars of the intervening owners through whom they claim.

Learned counsel contended that the evidence of traditional history as adduced by the Appellants’ witnesses with respect to who founded the land in dispute, how the land was founded and the particulars of the intervening owners was uncontroverted in evidence. See case ofKayili v Yilbuk supra at 57-58 paras H-A and 70 para C-E.

Learned counsel contended that the Respondent is not laying claim to the land in dispute as the founder and first settler, but that Respondent merely traced his root of title to the Alarienrin family, who were not called by the Respondent as witnesses. Therefore the Appellants who have established their title, and ownership to the said land by believable and admissible evidence of traditional history, this Court by the authority of Sogunro v. Yeku (2017) 9 NWLR (Pt 1570 ) p. 290 at 316 paras E-H, Alli v Alesinloye (2000) 6 NWLR (Pt 660) P.177 and Adejumo v Ayantegbe (1989) 3 NWLR (PT. 110) p. 417 is urged to resolve issue one in favour of the Appellants.

ISSUE TWO
“Whether the learned trial Court was right to have held that the appellants have failed to plead and prove that the Respondent is their customary tenant on the land in dispute inspite of the incidences of customary tenancy in the pleadings and evidence on record?”

In arguing this issue appellants’ counsel stated the main feature of customary tenancy to be the payment of tribute to the overlord, which entitles the customary tenant to enjoy his holding in perpetuity, subject to good behavior. See the cases of Akinbade v Babatunde (2018) 7 NWLR (Pt 1618) P. 366 at 394 para G-H; Makinde v Akinwale (2000) 2 NWLR (Pt 645) P. 435; Dashi v Satlong (2009) 5 NWLR (Pt 1134) P 281.

Learn counsel submitted that the Appellants conceded a small portion of the said land for substance farming to the Respondent who is their in-law. That the Respondent began to challenge the title, rights and ownership of the Appellants by giving part of the said land to tenants, planting economic trees there on. Learned counsel contended that the actions of the Respondent are acts of affront and challenge to the established rights of

title and ownership. See Akinbade v Babatunde (supra). It was pointed out by learned counsel that Respondent completely denied the over Lordship of the Appellants’ family, by averment in his pleadings, statement on oath that it was the Alarienrin family of Oke-lla who granted the said land to him. But that under cross-examination Respondent stated that the Alarienrin family have their land at Oke-lla, Ado- Ekiti, which is several miles far away, and in a different axis from the Appellants’ family land now in dispute. Learned counsel reiterated the fact, that throughout the trial, Respondent failed and neglected to call any member of the said Alarienrin family to testify that indeed, it was the members of the Alarienrin family who granted the said land to the Respondent.

In his further submissions, learned counsel submitted that there are competing traditional histories in respect of the land in dispute. That the best way to resolve it is by reference to facts on the land in recent years. See the case of Akinbade v Babatunde (supra); Morenikeji v Adegbosin (2003) 8 NWLR (Pt 823) P. 612 and Kojo ll v Bonsie & Anor (1957) 1 NWLR 1223 at 1227.

Learned counsel contended that there is no evidence on record that members of Alarienrin family ever owned and or possessed land at the Appellants’ family land now in dispute either before now or recently. It is submitted by learned counsel that it is only the Appellants family members that have engaged in farming, building, plantations etc on the said land.
He urged this Court to resolve this issue in favour of Appellants.

Issue 3
“Whether the learned trial judge properly considered Exhibits C4 and C5 before arriving at its decision?”

On this issue appellants’ counsel submitted that Exhibit C4 is the Certified true copy (CTC) of the Judgment of the High Court, Ado-Ekiti, Ekiti State when the Respondent’s late father challenged the title and ownership of the Appellants’ land. On Appeal to the Court, llorin Judicial Division in Appeal Number CA/1456/2007, the Appeal Court agreed with the lower Court that the Respondent’s late father actually acted in affront to the rights of the late overlords. The Justices of the Court of Appeal adjudged that the claim was wrong. In this Appeal, the

Respondent has challenged the rights and ownership of the Appellants on the said land.

Learned counsel urged this Court to be persuaded by the decision of this Court in Appeal Number CA/1456/2007. In that the Court of Appeal is bound by its previous decisions:-
Ahmed v S.M.B.Ltd (2015)13 NWLR (pt 1476) p.403 at 439 paras B-E; Access Bank Plc v U.L.O Consultants (2009) 12 NWLR (Pt 1154) P.534; lbaku v Ebini (2010)17 NWLR (PT 1222) p.286.

This Court was urged to resolve issue 3 in favour of the Appellants.

Issue 4
“Whether the judgment of the learned trial judge was not against the weight of evidence adduced before the trial Court?”

The factors to be considered when determining the weight of evidence were enumerated by Appellants’ counsel to be admissibility, relevance, credibility of the evidence by which the weight of evidence of both parties is determined. See Mogadishu v Odofin (1978) 4 SC p. 91; Nwokidu v Okanu (2010) 3 NWLR (Pt 1181) at 362 and Ekele v lwodi (2014) 15 NWLR (Pt 1431)p.557 at586 paras B-D. Appellants’ counsel contended that the learned trial judge failed to conclusively, properly rightly evaluate

the documents, and facts placed before it, hence the great miscarriage of justice as can be visibly observed in the decision.

Finally counsel urged this Court to allow the appeal, set aside the decision of the lower Court and grant the reliefs sought by the Appellants.

The Respondent’s learned counsel in arguing the lone issue-
“Going by the totality of evidence on record whether the trial Court was right in law to dismiss the Appellants’ claims”,
stated the principle of law that a party seeking a declaration of title to a land in dispute is to establish his title on the strength of his own case and not on the weakness of the defendant’s case. Although the weakness of the defendant’s case may in some cases assist the plaintiff’s case. That the onus remains on the plaintiff until he has completely and successfully discharged the onus on him in that regard. Where he fails to discharge the burden of proof on him in this regards successfully, the onus does not shift on the defendant. Until the onus is successfully discharged by the plaintiff, the Court is not obliged to look at the defendant’s

case. It is not sufficient for the plaintiff in such an action to show possession, and argue that the defendant has not proved a better title. See Dim v Enemuo (2009) 10 NWLR (Pt.1149) 353 at 377 paras E-H. Anyafulu v Meka (2014) 7 NWLR (Pt.1406) 393 at416-417 para F-F.

Learned counsel referred to the Appellants’ traditional history in this case, that it is silent on how the land was founded by Ogunmuyiwa, that was why the learned trial judge held on page 367 of the record that, the evidence of the two witnesses is however silent on how the land was founded. That this finding of the trial Court was not appealed against by the Appellants. See the case of Awodi v Ajagbe (2015) 3 NWLR (part. 1447) page 578 at 598 paras D-E, 599 paras A-D.

The learned counsel referred extensively to the holding of the learned trial judge on pages 367-368, in buttressing his contention that there were missing gaps ippellan Ants’s traditional history. Learned counsel also referred to the findings of the learned trial judge on page 368, on the unsatisfactory and unconvincing evidence of the traditional history relied upon by the Appellants. That the findings were

born out of facts in this appeal. He urged this Court not to disturb the findings.

Learned counsel contended that there is no burden on the defendant to an action for declaration of title who has not counter claimed to establish his title. The onus lies squarely on the Appellants. See Anyafulu v Meka (supra) pages 416-417. The claimant in this Appeal must plead and establish the following facts:-
1. Who founded the land
2. How he founded it and
3. The particulars of the intervening owners through whom he claims down to him. See Anyafulu v Meka (supra).

In elucidating on the issue of traditional history learned counsel referred to the fact that the Appellants’ were silent on how Ogunmuyiwa founded the land, therefore the learned trial judge on page 367, held that the evidence of the two witnesses was silent on that point. Learned counsel contended that these findings of learned trial judge were not appeal against by the Appellants. See case of Awodi v Ajagbe (2015) NWLR (PART 1447) page 578 at 598 paras D-E,599 paras A-D.

The learned counsel showed that the appellants left missing gaps in their traditional history, which they

relied on as their root of title, he further referred to the judgment page 367-368 of the record of appeal, wherein the learned trial judge asked who were the intervening owners before Ogunkolade who died in 1963, if the land was founded from time immemorial by Ogunmuyiwa. The trial judge also asked how many children Ogunmuyiwa had? To further elucidate the fact that, the learned trial judge held that, the traditional history relied upon by the Appellants was unsatisfactory and unconvincing further referred to page 368 of the record of appeal, wherein the trial judge held that there is no evidence in support of the pleading that Ogunmuyiwa founded the land when it was a virgin land.

Learned counsel submitted that the findings of the trial Court were born out of the fact in this appeal and he urged this Court not to disturb them. He reiterated the fact that there is no burden on the defendant to an action for declaration of title, who has not counter claimed, to establish his title. In that the onus lies squarely on the claimants to establish their claim. See Anyafulu’s case supra at page 425 paras E-F.; Supreme Court case of Eze v Atasie (2000) 10

NWLR (Pt 676) 470 page 481-482.

On the prayer of the Appellants that the Respondent forfeit his customary tenancy over the land in dispute, when in actual fact, the Appellants failed to establish their claim for declaration of title.

Learned counsel contended that both in the pleadings, and evidence of the appellants, but there is nothing to suggest any incidence of landlord and tenant relationship between the parties. He asked the questions:-
When actually did the claimants put the defendants in physical possession of the land in dispute?
Is it their (appellants’) late father that put the defendants in possession of the land as tenants or the claimants themselves?

In answering the two questions counsel posed, he referred to the case of Dim v Enemuo (supra) wherein the Supreme Court held that where a plaintiff in a land case alleged that the defendant was his customary tenant, the plaintiff must plead the incidences of customary tenancy in that regard. The act of ownership must be satisfactorily established both in the pleadings and on the evidence adduced to establish same. Therefore in the instant case, the Appellants claim

for forfeiture and damages for forfeiture against the defendants. The Respondent’s counsel submitted that thatAppellants’ claims must fail for the following reasons:
That in paragraphs 14 and 15 of the Statement of Claim on page 4 of the record, 1st defendant was described as claimants’ father’s labourer. Learned counsel then asked the question whether 1st defendant was employed as claimants’ late fathers labourer and did that make the defendant (Respondent) customary tenants of the claimants (appellants)? Counsel answered in the negative.

In his further submissions, learned counsel asked at what period did the defendant (Respondent) metamorphosed from labourer to customary tenant? He contended that the pleadings and evidence of the claimants described defendant (Respondent) as trespassers in paragraphs 19,20,23.

The defendant (Respondent) was alleged to have gone beyond the portion of the land given to him by the claimants (appellants). Respondent’s counsel asked the question which portion of the land in dispute was given to the Respondent as customary tenants, and which portion did the defendants trespass

upon? Also learned counsel asked whether the claimants (Appellants) are asking for forfeiture of the purported customary tenancy. In this case forfeiture of which particulars portion?

Learned counsel contended that from the above showing, the Appellants laid foundation for failure of their claim, consequent upon their failure to give sufficient information in their pleadings, and evidence on incidence of customary tenancy. While in one breath the appellants through their claims before the trial Court painted a picture of landlord and tenant relationship, between the parties, but the Appellants in their evidence of 2nd appellant, said that the defendants (respondents) are trespassers. He referred to paragraphs 32, 33, 45, 47,and 51 of the written statements on oath of John Ayodele on pages 128-130 of the record.

Learned counsel referred to the evidence of CW3 John Ayodele who testified that the defendants entered their family land without their permission. He submitted on this, that the Appellants are not consistent in their presentation of their own case before this Court, their evidence is very weak, and unreliable to warrant the grant of their

claim for forfeiture against the Respondent.

The documentary evidence tendered by the Appellants was discredited by learned counsel in that it contradicted their claim for forfeiture against the Respondent. In that Exhibits C1 & C3 talk of acts of trespass, while the appellants are pursuing claim for forfeiture, before the trial Court, knowing that their false claim for declaration of title has failed. See case of Abimbola v Abatan (2001) 9 NWLR (Pt 717) 66 at pages 78-79.

Learned counsel contended that the Respondent did not even pretend to be customary tenants at anytime to the appellants. He submitted, placing reliance on the case of Kele v Nwerebere (1998) 3 NWLR (pt 543) 515 at 526 paras F-H.

In his further submissions, learned counsel elucidated the conditions of customary tenancy as payment of tribute, or rent by the tenant to the landlord. That both in their pleadings and evidence, fact of payment of tributes or rent is missing as is shown in paragraphs 14 and 15 of the Statement of Claim. The Claimants/Appellants gave evidence in line with the averments in the two paragraphs. It was pointed out by learned counsel that there is no

where that the Appellants pleaded that the Respondents are their customary tenants. That all the Appellants pleaded is that the first defendant is their in law, and labourer of their late father. There is no pleading showing when the 1st Respondent transformed from labourer, who was paid stipend to a customary tenant. Also there is no pleading that any tribute or royalty in whatever form was paid to the Appellants by the Respondents. There was therefore no evidence of the alleged customary tenancy. This means that there is no pleading or evidence of the alleged customary tenancy. Particularly there is no evidence, that the Respondents recognized the Appellants as their overlords.

Learned counsel asked the question of what use are Exhibits C4 and C5 which are judgments of High Court of Ekiti State and the Court of Appeal? It was noted by learned counsel that Appellants claimed trespass, and injunction in Exhibit C4 and C5. That it is trite law that when a claim for damages for trespass is coupled with an order for perpetual injunction, title is in issue. See Opuzibau v Kwokwo (2002) 1 NWLR (Pt 747) 116 at 128 para D-E.

In his further submissions

learned counsel contended that the Court of Appeal in Exhibit C5 dismissed the appellants’ claim for trespass and injunction against the first defendant (now deceased). Counsel noted that the said defendant was not a party to the previous case. That the issues in Exhibit C4 and C5, are not the same with the issues in the instant appeal. He contended further that the argument of Appellants’ counsel that the trial judge did not properly consider Exhibits C4 and C5 is wrong, in the sense that the learned trial judge thoroughly considered Exhibits C4 and C5 as can be gleaned from pages 370-372 of the record. The finding of the trial Court on page 372 was not appealed against by the appellants, therefore it is deemed admitted. See the case of Awodi v Ajagbe (supra).

The argument of Appellants’ counsel that the trial Court did not properly evaluate evidence before it, was attacked by learned counsel, who contended that the Appellants have not satisfied the requirement of the law in this regard. See the case of Ejoh v Wilcox (2003) 13 NWLR Part 838 page 488 at 510 para C-D.

In concluding, counsel urged this Court to dismiss the appeal

and resolve the sole issue in favour of the Respondent. This Court should therefore affirm the judgment of the trial Court.

Resolution
It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju v. Ezuka (1994) LPELR-1851(SC) Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (Pt 1225) 653.
As was submitted by the Appellants, fundamental legal prerequisites to prove title to land have been well articulated by the Courts, with a foremost authority found in the case of AJIBULU V AJAYI (2014) 2 NWLR (Pt 1392) P.483 at 500 paras D-G. wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances

which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (Pt 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (Pt 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (Pt 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (Pt 1) 126; Balogun v Akanji (1988) 2 S.C. 199.
Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (Pt 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (Pt 1146) 225.
In proving title, claimants must rely on the strength of their case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (Pt 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (Pt 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of

those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989) LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment.

The evidence adduced before the lower Court was that the the Appellants instituted the action in a representative capacity for and on behalf of the Ogunkolade family of Ado- Ekiti, Ekiti State. This can be gleaned from paragraphs 1,2,3,4,8,10, and 11 of the Statement of Claim and paragraph 9 of the evidence in chief of the CW1, as well as paragraph 12 of the evidence in chief of the CW3.

The land in dispute is situate at Araromi Camp, along Ado-ljan Road, Ado- Ekiti, Ekiti State and is bounded as follows:-
A) At the front by Ado-Ekiti tarred Road,
B) At the back by the land of ljan people
C) In the Ado side by the land of Ado Ayegunle people and
D. On the ljan side by the land of ljan people.
The Appellants’ pleaded that the land belongs exclusively to their Ogunkolade family, and they gave the genealogy of their forefathers, founders as

follows:-
1. Ogunmuyiwa founded the said land.
2. Ogunmuyiwa begat Ogunkolade
3. Ogunkolade begat Ayodele
4. Ayodele begat Appellants and their other siblings. These facts can be gleaned from paragraphs 7, 8, 9, 10, 11, and 12 of the Statement of Claim as well as paragraphs 14, 15, 16 and 17 of the evidence in chief of CW1, as well as evidence in chief of CW3.

The appellants contended that the Respondent is their customary tenant in respect of a small portion of the said land in dispute. The said small portion of the said land having been given to the Respondent being an in-law, to farm on.

Appellants also contended and stated in their pleadings and evidence on record that their Ogunkolade family instituted the suit as a result of the Respondent’s affront and challenge to their control, ownership and possession of the aforesaid family land.

On the other hand, Respondent denied been customary tenant to the Appellants, but that the Alarienrin family of Oke-lla, Ado- Ekiti, Ekiti State owned the said land.

Appellants’ counsel on issue one argued that pleadings provide the legal basis for judgment, which must

be confined to the matters on which issues had been joined. No doubt, the evaluation of evidence by a trial Court is of utmost importance in the adjudication process. For starters, there cannot be a finding of fact by a Judge when that Judge has not evaluated the evidence before him. InNkpa v. Nkume (2001) 6 NWLR (Pt.710) 543, this Court per Ikongbeh, JCA spelt out the process involved in the assessment or evaluation of evidence, thus:
“First, a piece of evidence is taken and considered as to whether in the natural order of things it is credible. If it is not intrinsically incredible, then it is against the pleadings of the party who is relying on it. This is to ensure its relevance to the matter at hand as parties are bound by their pleadings and evidence given on any point not pleaded goes to no issue. After that you check in the pleadings and the testimony on behalf of the opposing party to see if the fact stated in the evidence has been admitted, either expressly or impliedly. If it has, then the fact on which it was given has been proved.
If there is no admission, then you check for what other contrary evidence there is from the opposing

side. Then you place the two pieces of opposing evidence on the imaginary scale of justice. The piece that tilts the scale constitutes the finding of the Court.”

In this case, the appellants prayed the lower Court for a declaration that they are the ones entitled to the grant of certificate of occupancy in respect of the land in dispute. That the Respondent should forfeit his customary tenancy for his affront and challenge to the title and ownership of the Appellants. They also prayed for Ten Million Naira damages. The case of the appellants who are brothers is that the land in dispute belongs to their Ogunkolade family exclusively from time immemorial. And the Appellants have been in bonafide possession of the land as beneficial owners from time immemorial through their grand fathers. The land in dispute is situate and lying at Araromi camp, along Ado/ ljan road, Ado- Ekiti and bounded by Ado/ljan Road, ljan people at the back, on Ado side by Aso Ayegunle and ljan land on ljan side.

The evidence of the Appellants before the trial Court is that the land was founded by their great grandfather called Ogunmuyiwa, who begat Ogunkolade who is the father

of Ayodele Ogunkolade. Whilst Ayodele Ogunkolade begat the first and second Appellants as well as Mrs. Florence Adebiyi, Agnes Aina and others. The Appellants further stated further that they had been in possession of the disputed land from time immemorial having palm trees and food crops on the land. The 1st Appellant stopped farming on the land between 1963 and 1968, when there was dispute between him and the 2nd Appellant. The first Appellant resumed farming activities on the disputed land in 2001, after the dispute between him and the 2nd Appellant was settled. After the 1st Appellant resumed farming, the Respondent ordered him to vacate the land as they claimed the land as theirs.

The 1st Appellant contacted his counsel, A. O. Akanle, SAN, who wrote a letter to the Respondent. In their further evidence, Appellants stated that the same land had earlier been a subject of litigation in Suit No HAD/116/2001, which was decided in favour of their family. The Appellants stated also that the appeal against the judgment was decided in their favour.

The Respondent on his part challenged the capacity of the claimants, to institute the case on behalf of the

Ogunkolade family of Oke-Ese, on the ground that they have no such mandate. The Respondent maintained that the land in dispute forms part of the large Alarienrin farmland at Oke-Opa, Araromi Camp, Ado/ljan Road, Ado- Ekiti. That Araromi Camp is within the land in dispute which is known as Oke- Opa. That the land belongs to Alarienrin family and bounded by ljan people on the eastern part, River Eri on the northern part, lgwemoh people on the southern side, and Aso people on the western side.

The Respondent denied that, anybody from Ogunkolade family, ever farmed on the disputed land, which they said does not belong to the Appellants, except that in 1966, when James Oguntuase Ogunkolade was granted a portion of the disputed land to farm by the 1st Respondent, when the properties of his father Baruwa Ogunlade were burnt down during the political crisis.

In his further evidence, Respondent stated that in 1971, there was crisis between Alarienrin family and the Respondent, and Chief Alarienrin through a letter written by his counsel alleged that 1st Respondent trespassed on his family land located within the area of the land in dispute. Consequently, an

agreement was reached between the 1st Respondent and Chief Alarienrin Fatoba, which led to the withdrawal of the case pending before Ekiti Divisional Grade A Customary Court, Ado- Ekiti. And during the said crisis nobody from the side of the Appellants came out to claim ownership of the land in dispute.

The Respondent confirmed that the 1st Appellant was allowed to farm in the area of the disputed land in the year 2000, but was prevented from doing so in 2001. The Respondent insisted that the Appellants’ family do not have the right to put or allow anybody to work or farm on the land in dispute except Chief Alarienrin, who is the rightful owner of the land, and who still farms on the disputed land till date.

The first issue distilled by the Appellants is “Whether the learned trial judge properly evaluated the pleadings, and evidence of the parties, and their witnesses on record, particularly with respect to their traditional histories before arriving at its decision?

The Appellants in this case are seeking a declaration as the members of Ogunkolade family of Oke-Ese, Ado-Ekiti that are entitled to the statutory right of occupancy

over a large piece of land lying, being and situate at Ogunkolade family farmland, Araromi Camp, along Ado-ljan Road , Ado-Ekiti, Ekiti State.

The law is settled as well that there are five recognized ways by which ownership of land may be proved, these are:
1) Proof by traditional evidence.
2) Proof by production of document of title.
3) Proof by acts of long possession.
4) Proof by acts of ownership extending over a sufficient length of time, numerous, and positive enough to warrant the inference that the persons exercising such acts are the true owners of the land.
5) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute. See ldundun & Ors v Okumagba (1976) 9-10 SC 277; Amanda v Ajani (1997) 7 NWLR(Pt 514).
The party claiming title only needs to plead and prove one of the five methods.

In this case, it is clear from the pleadings, and evidence adduced by the Appellants in support of their claim that they are relying on traditional evidence/history. It is settled that a claimant who seeks title to land and relies on traditional history must, to succeed, plead and prove facts as to who found the land, how the land was founded and particulars of ancestors

through whom he claims. See Ewo v Ani (2004) All FWLR (Pt. 200) 1484 at 1498; Alli v Aleshinloye (2000) 4 SC (PT. 1) 111.

Paragraphs 10, 11, 12, 13, 14, 15 of the statement of claim of the claimants dated 4th day of August, 2008 and filed 5th August, 2008 contained the pleadings relating to traditional history which read thus:-
10). Ogunmuyiwa founded the land. He is the original owner of the land in dispute. He cultivated the land as a virgin, inappropriated and uncultivated land.
11). Ogunmuyiwa begat Ogunkolade, while Ogunkolade begat Ayodele Ogunkolade, Ayodele Ogunkolade is the father of Remigius Ayodele, John Ayodele, Mrs. Florence Adebiyi (née Ogunkolade) Mrs. Agnes Aina (nee Ogunkolade) and other children.
12) Plaintiffs have kolanut, and oil palm trees, cocoa and other economic trees, as well as maize, cassava, yams and other food crops on the land in dispute.
13) Members of Ogunkolade family were in effective control of the land until 1963, when late Ayodele Ogunkolade head of the family died.
14) During his lifetime, the said Ayodele Ogunkolade employed the first defendant as a labourer. The first defendant had no piece of

land on the land in dispute. He had no independent and separate farmland. He was paid stipend by the late Ayodele Ogunkolade.
15) When the said Ayodele Ogunkolade died, members of his family were not going to the land but first defendant remained tending the farm of the late Ayodele Ogunkolade.

The main thrust of the appellant’s complaint against the learned trial judge is that he did not make a proper evaluation of pleadings and the pieces of evidence proffered by the witnesses and therefore failed to make specific findings premised on such a proper evaluation of those pieces of evidence.
The law is firmly settled to the effect that it is the primary duty of the trial judge who saw and heard the witnesses who gave evidence in a case before him and watched their demeanors in the witness box, to perceive and evaluate those pieces of evidence. The making of finding of facts involves both the perception and evaluation of evidence. Mainagge v. Gwamma (2004) 14 NWLR (pt.893) 323 at 330 (SC); NACENN Nig Ltd v. Bewac Automotive Producers Ltd (2011) LPELR – 8125 (SC). The law also is well settled that generally, it is not the duty of the Appellate

Court to evaluate evidence proffered at the trial Court. However, where the trial Court failed to do a proper evaluation from the proved and established facts, the Appellate Court will step in and do the evaluation of the evidence contained in the record of appeal. Odutola v. Mabogunje (2013) 7 NWLR (pt.1354) 522 at 548, 553 (SC); Adebayo v. People’s Democratic Party and Ors (2013) All FWLR (pt.695) 203 at 265-266 (SC).
Therefore where there is a complaint as it is in the instant appeal that the trial judge did not make findings based on the pleadings and evidence placed before him, the Appellate Court is in as good a position as the trial Court to do its own evaluation of the evidence laid before the former. And where the latter finds that there are inadequacies on the part of the trial judge in reaching its decision, the Appellate Court has a duty to examine the inferences drawn and the conclusion reached by the trial Court, and then re-evaluate the evidence in order to come to its judgment to see that justice is done to the parties fairly. Ogboda v. Adulugba (1971) 1 All NLR 68; Lion Building Ltd v. Shadipe (1976) 12 S.C. 135; Eki v. Giwa (1977) 2 S.C.

131; Narumal and Sons Nig Ltd v. Niger Benue Transport Co Ltd (1989) 2 NWLR (pt.106) 730; Adebayo v. PDP (supra) at 234, 265-266 (SC).

I have perused the pleadings and the case made at the trial Court by the appellants and it is clear to me that their claim was squarely premised on traditional history with respect to their connection to and descent from the Ogunkolade family and how they came into ownership of the land in dispute. It must be borne in mind that for the appellants to succeed in a claim for a declaration of title to land predicated on traditional history, they must plead in their statement of claim, and lead evidence in Court showing the names and histories of their ancestors in such a manner as to disclose a continuous chain of devolution from one generation to the other until the land finally devolved on them. Akinloye and Anor v. Eyiyola and Ors (1968) NMLR 92 at 95 (SC); Total Nig Ltd v. Nwako (1978) 5 S.C. 1 at 12; Elias v. Omobare (1982) SC 25 at 57-58.
Furthermore, it is incumbent on the claimants, such as the appellants herein, to plead and establish how their ancestor said to be Ogunmuyiwa founded the land in dispute, whether

by conquest, first settlement or grant and the evidence must be cogent, uncontroverted and conclusive, for them to succeed in obtaining the Court’s declaration in their favour. Iseogbekun and Anor v. Adelakun and Ors (2012) 4 SCNJ 100; Nruamah and Ors v. Ebuzoeme and Ors (2013) 1 SCNJ (pt.1) 128; Alli v. Alesinloye (2000) 4 SCNJ 264 at 284; Piaro v. Tenalo (1976) 1 All NLR 229 at 234.

Now let us examine the Appellants’ pleadings and the evidence led in Court with respect to the founding of the land in dispute and how the land in dispute devolved on them. At paragraphs 8,9,10,11,12, of the statement of claim, it was averred, that –
8) “The land now in dispute belongs to the plaintiffs’ Ogunkolade family exclusively from time immemorial from their forefathers.”
9) The plaintiffs have been in bonafide possession of the land as beneficial owners from time immemorial through their forefathers.
10) Ogunmuyiwa founded the land. He cultivated the land as a virgin, unappropriated and uncultivated.
11) Ogunmuyiwa begat Ogunkolade, while Ogunkolade begat Ayodele Ogunkolade. Ayodele Ogunkolade is the father of Remigius

Ayodele, John Ayodele, Mrs. Florence Adebiyi (née Ogunkolade) Mrs. Agnes Aina (née Ogunkolade) and other children.
12. Plaintiffs have kolanut and oil palm trees, cocoa and other economic trees, as well as maize, cassava, yams, and other food crops on the land in dispute.”

In his written statement on oath John Ayodele who testified in the case as CW3, stated as follows in paragraphs 19, 20, and 21 of the written statement on oath dated 16th April, 2021;
“19) That it was our great grandfather that founded the land. His name was Ogunmuyiwa. He gave birth to Ogunkolade.
20) That we inherited the land from our father, Ayodele Ogunkolade.
21) That my father is dead, he died in 1963.”
The witness went further in paragraph 49 and 50 of the same written statement on oath to state as follows:-
“49) That our great grandfather, late Pa Ogunmuyiwa founded the entire large farmland in dispute which belongs to our family exclusively.
50) That Ogunmuyiwa begat our grandfather Ogunkolade, who begat Ayodele Ogunkolade, who begat the first and second claimants in this suit as well as one Mrs. Florence

Adebiyi (nee Ogunkolade) and other children.”
Remigius Ayodele who testified as CW1, in his written statement on oath stated in paragraphs 17 and 18 as follows :-
17) That the land in dispute belongs to my fathers from our great grandfather Ogunmuyiwa, who founded the land, to Ogunkolade to Ayodele Ogunkolade, who begat the first and second claimants as well as Mrs. Florence Adebiyi (née Ogunkolade, Mrs Agnes Aina and other children.
18) That the said land belongs to my great grandfather, to my grandfather and to my father, and we have been in possession from time immemorial, and till date until the defendants trespassed thereto.”

From the evidence of the two witnesses, the land in dispute was founded from time immemorial by Ogunmuyiwa. The finding of the learned trial judge that the evidence of the two witnesses is however silent on how the land was founded is unassailable. In paragraph 10 of the statement of claim, it was stated that Ogunmuyiwa cultivated the land as a virgin land. The learned trial judge rightly found that there is no evidence in support of the vital averment. There is need to prove averments

contained in a pleading by evidence unless admitted. See Odebunmi v Abdullahi (1997) 2 NWLR (Pt 489) 526. The finding of the learned trial judge that where no evidence is produced in support of pleadings, the fact is deemed abandoned cannot be impugned. In this case, it has not been established by evidence how Ogunmuyiwa founded the land in dispute.
The learned trial judge on page 367 of the record of appeal found that “The pleadings and evidence of the claimants clearly show that there is a gap between Ogunmuyiwa and Ogunkolade. He asked the question who were the intervening owners before Ogunkolade who just died in 1963, if the land was founded from time immemorial by Ogunmuyiwa. He also asked how many children had Ogunmuyiwa and who amongst the children inherited the land? See case of Ewo v Ani (supra) page 1501. The trial judge further correctly found that there is no evidence in support of the pleading that Ogunmuyiwa founded the land, when it was virgin land, and also there is no cogent and convincing evidence of the successive persons to whom the disputed land had devolved, through an unbroken chain, or in such a way that there is no gap

that cannot be explained. The finding of the learned trial judge is correct that, the Appellants have not successfully established the traditional history relied upon by them to establish their claim.

On the order of forfeiture of customary tenancy of the Respondent, for affront and challenge of the title and ownership of the Appellants, and ten million naira damages. I agree with the learned trial judge that the Appellants gave evidence in line with their pleadings in paragraphs 14 and 15 of their statement of claim. That there is no pleading that any tribute or royalty in whatever form was paid to the Appellants by the Respondent. Rather it was the father of the Appellants who wayins pag stipend to the Respondent. The conclusion reached by the trial judge that there is no evidence of customary tenancy is correct, as can be gleaned from the pleadings and evidence of the Appellants. Therefore the finding of the learned trial judge that there is no evidence that the Appellants or their predecessors in title ever recognized the Respondents as their tenants is unassailable. The trial judge reached the right decision that the claim for forfeiture of the

customary tenancy and damages in respect thereof must fail, the Appellants having failed to establish the alleged customary tenancy.

The learned trial judge rightly found that it is strange for Appellants’ counsel to submit that the judgment in Appeal No CA/IL/56/2007 binds the parties in this suit, and it constitutes estoppel per rem judicatem. In that estoppel per rem judicatem is a plea of an estoppel against the losing party from again litigating matters involved in previous action. It amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved question of law as well as findings of facts. See the case of NIDB V LIMANI (NIG) ENT. LTD (1998) 10 NWLR (PT. 568).
For a plea of estoppel per rem judicatam to succeed, the party relying on it must prove or establish the following:-
1. The parties or their privies are the same i.e that the parties involved in both the previous and the present proceeding or their privies are the same.
2. The claim or the issues in dispute in both proceedings are the same.
3. The res or the subject matter of the

litigation in the two cases is the same.
The decision or judgment relied upon to establish the plea of estoppel per rem judicatem must be valid, subsisting and final. It was rightly pointed out by trial judge that throughout the statement of claim of the claimants, there is no averment relating to estoppel per rem judicatem. It was not pleaded. There is also no evidence relating to it. The learned trial judge rightly found that Exhibits C4 and C5 were nowhere pleaded. That Appellants’ counsel had argued that exhibit C5 is in respect of the smaller part of the land in dispute. Therefore the said Exhibit C5 is not relevant to this case since the subject matter is not the same. The learned trial judge surmised that what the Appellants’ counsel appears to be saying is that the subject matter is the same, that it is the same land. The trial judge posed the question if that is the case, why did he file the present action if there is a valid and subsisting judgment in respect of the land.

I have perused the appraisal and evaluation of the pieces of evidence laid before the learned trial judge, which his Lordship meticulously carried out from

pages 365 to 372 of the record of appeal which culminated in his decision to the effect that “in the absence of sufficient evidence in support of the traditional history which the claimants pleaded, and in the absence of proof of the alleged customary tenancy, the claims of the claimants are liable to be dismissed. The case of the claimants is accordingly dismissed.”

I must say that I am unable to impeach the evaluation exercise carried out by his Lordship. Therefore, I cannot find any basis for the complaint against him by the appellants. Right from page 365 of the record of appeal, the learned trial judge demonstrated that he understood the claim of the appellant and the entire case before him. He said, to wit:
“In this case, it is clear from the pleadings, and evidence adduced by the claimants in support of their claim, that they are relying on traditional evidence/history. It is settled that a claimant who seeks title to land and relied on traditional history must, to succeed, plead and prove facts as to who founded the land, how the land was founded and particulars of ancestors through whom he claims.”

I must say that I

am unable to see how else the evidence placed before the Court by the parties could be better evaluated than what the learned trial judge did. Therefore, I fail to see any merit in the submissions of appellants’ learned counsel on this issue. The appellants did not lead evidence positively and cogently to effect that Ogunkolade was a son or a descendant of Ogunmuyiwa. In other words, the ancestry of the appellants was not effectively traced through Ogunkolade to Ogunmuyiwa.

In sum, I resolve all issues against the appellants. The appellants‘ claim was rightly dismissed because that was what it deserved and merited. Therefore, this appeal fails and it is accordingly dismissed.

The judgment of Ekiti State High Court of Justice holden at Ado- Ekiti, per Adeyeye, J., in suit No. HAD/113/2008 of 13th day of November, 2014 is hereby affirmed.
I award costs of N100,000.00 against the appellants in favour of the respondent.

PAUL OBI ELECHI, J.C.A.: I have the privilege of reading before now the lead judgment just delivered by my learned brother Fatima Omoro Akinbami JCA.
I agree with the reasoning and conclusion

contained therein. I have nothing else to add.
I also hold the view that the appeal lacks merit and it is hereby dismissed by me also.
I abide by the consequential order as to cost in the lead judgment.
Appeal dismissed.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the lead judgment delivered by my learned brother, F.O AKINBAMI JCA and I agree with the reasoning and conclusion reached therein.

I therefore in consequence, find this appeal to be without merit and the same is hereby dismissed. I also affirm the judgment of the Court below and make no order as to costs.

Appearances:

Sunday J. Ochayi Esq., with him, Adefolaju A. Ayobioloja Esq. For Appellant(s)

Adeife Adedayo Adewumi Esq., with him, Lawrence Adetunji Fasanmi Esq., Adegbuyiro Adeyemi Esq. and Femi Johnson Ariyo Esq. For Respondent(s)