ADEWOLE v. OLOGBENLA & ANOR (2020)

ADEWOLE v. OLOGBENLA & ANOR

(2020)LCN/14700(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, October 02, 2020

CA/AK/255/2019

RATIO

LAND LAW: ONUS IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It has been long established Principle of Law that, in an action for declaration of title to Land, the onus is on the plaintiff to prove his ownership of the Land in dispute and the burden never shift. To succeed, the plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case except where the evidence adduced by the defendant clearly support his claim. See KOLO V. LAWAN (2018) LPELR 44378 (SC), TUKURU & ORS V. SABI & ORS (2013) LPELR 20176 (SC), OKOYE & ORS V. NWANKWO (2014) LPELR 23172 (SC). PER ABDULLAHI, J.C.A.
LAND LAW: DUTY OF A PARTY CLAIMING TITLE TO LAND BASED ON TRADITIONAL HISTORY

The Law is that, where title to Land is said to have been derived by grant or inheritance, the pleadings must aver facts relating to the founding of the Land in dispute, the person(s) who founded the Land and the persons on whom title in respect of the Land had devolved since the first founding. In the case of DAGACI DERE V. DAGACI OF EBWA (2006) 2 NWLR (pt.979) 382 per Tobi, JSC held thus:
“In land matters, it is easy for a plaintiff to claim that he owned the land from time immemorial. But that is not the end of the story. The story must go further and paint a genealogical tree of the family ownership of the land. It is usually a long story of the members of the family in ownership of the land from the past to the present. The plaintiff paints a picture of genealogical lines and names spreading like the branches of a tree, telling a consistent and flowing story of undisturbed ownership or possession of the land. And the flowing story which should first be told in the pleadings should mention specific persons as ancestors before the witnesses give evidence in Court to vindicate the averments in the pleadings. Party must not only plead and establish his title to the land, he must also plead and prove the title of the person from whom he derived his alleged ownership of the land in dispute.” PER ABDULLAHI, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

SUNDAY ADEWOLE APPELANT(S)

And

1. LASISI OLOGBENLA 2. OJO ADEWOYIN SEMOLU 3. PRINCE ADEYEMI OLOGBENLA RESPONDENT(S)

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering The Leading Judgment): This is an Appeal against the Judgment of the High Court of Osun State, sitting at Ile-Ife Judicial Division (hereinafter referred as the Lower Court), coram: R. A. Shiyaneola, J, delivered on 4th October, 2018. The Appellant and the Respondents were the plaintiff and defendants before the lower Court, respectively.

The brief facts of the case which transformed into this Appeal are that the Appellant for and on behalf of himself and members of Wanikin Family of Ife, asserted that the piece of Land in dispute situated and lying at Wanikin Village, Ile-Ife, Osun State is exclusive and bonafide property of Wanikin Family of Ile-Ife. The plaintiff averred that the plaintiff and defendants were from the Royal Families of the Ooni of Ife though of different compound. That the plaintiff inherited the Land in dispute from their ancestor Ooni Laroka over 500 years ago. The plaintiff claimed that the defendants are from Agbedegbede Family and with the intervention of prominent members of Agbedegbede Family, the plaintiff’s family granted the said Farmland to the

defendants as the plaintiff’s “non Ishakole” payment tenants. That the defendants started allotting the Farmland to other tenants, which act, prompted the plaintiff to institute an action against them in Suit No: HIF/95/62 and judgment was given in favour of the plaintiff. That with the intervention of one Pa Adedipe Ogunleye, the plaintiff’s family agreed to share the Land which the defendants granted to tenants into two so that each family will take half. Thereafter, an agreement was executed to that effect and inspite of the agreement, the defendants continued with their act of destroying the palm tree and allotting the Land. Consequently, the plaintiff was forced to beseech the lower Court and tabled the following reliefs:
1. Declaration that the Plaintiffs are entitled to the grant of customary right over and upon the parcel of farmland lying, situate and being at Wanikin Village, lle-lfe, Osun State being exclusive and bonafide property of Wanikin family of lle-lfe, Osun State.
2. Declaration that the said farmland lying, situate and being at Wanikin Eleja Farmland lle-lfe, Osun State is by succession the exclusive property of the Plaintiffs.

An order of this Honourable Court for forfeiture, ejecting the Defendants and all those that claim through them from ownership of the said farmland.
4. N20,000,000.00 (Twenty Million Naira) being general damages for trespass committed by the Defendants when the Defendants entered into the farmland without any lawful excuse.
5. N190,000.00 (One Hundred Thousand Naira) for special damages for the unwonting and continuous destruction of Palm Trees cut down being property of the Plaintiffs found on the farmland when they sent their servants, privies and agents to the farmland to work for them.
6. Injunction restraining the Defendants their servants, agents and privies from further trespass upon the said farmland.

The defendants joined issue with the plaintiff and denied liability on the suit. They denied being “Ishakole” or “non Ishakole” payee tenants of the plaintiff, they claimed that the disputed Land was granted to their great grandparents, Raji Onoade Aderibigbe Ologbenta and Prince Amodu Adetokumbo Aderin Ologbenta by their father the Ooni of Ife, Oba Aderin Ologbenta. That they inherited the land in dispute through

their respective parents, Raji Onoade Ologbenta and Prince Amodu Ologbenta.

Sequel to that, the lower Court proceeded to a full-scale trial of the action. In proof of the case, the plaintiff fielded four witnesses and tendered one document. To disproof the case, the Respondents called seven witnesses and tendered some documents. At the closure of evidence, the parties through their respective counsel addresses the lower Court. In a considered judgment delivered on 4th October, 2018, the lower Court dismissed the plaintiff’s case.

The Appellant was dissatisfied with the judgment, hence, on 3rd January, 2019, the Appellant filed a 5 grounds Notice of Appeal, seen at pages 465 – 468 of the Record, and prayed this Court for:
1. An order setting aside the judgment of the trial Court and allowing the appeal by granting the relief being claimed by the plaintiff/Appellant at the trial Court.

Thereafter, the parties filed and exchanged their briefs of argument in line with the rules regulating the hearing of Civil Appeals in this Court. The Appeal was heard on 14th July, 2020.

During the hearing of the Appeal, Learned Counsel for the

Appellant, O. I. Omirin, Esq., adopted the Appellant’s Brief of Argument filed on 6th November, 2019 and deemed properly filed on 14th July, 2020 and the Appellant’s Reply Brief of Argument, filed on 26th June, 2020 and deemed properly filed on 14th July, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, Learned Counsel for the Respondents, M. O. Awe, Esq., adopted the Respondents’ Brief of Argument, filed on 23rd March, 2020 and deemed properly filed on 14th July, 2020, as his reaction against the appeal. He urged the Court to dismiss the Appeal.

To set the record straight, the Respondents abandoned their Preliminary Objection, wrapped at threshold of their Brief of Argument, as can be seen at pages 3 – 5 of it and same is struck out.

In the Appellant’s Brief of Argument, the Appellant distilled a sole issue for determination to wit:
1. Whether the Plaintiffs have not proved the ownership of the land in dispute and the Court has not determined the case of the Plaintiff on extraneous facts.

In the Respondents’ Brief of Argument, they nominated two issues for determination as follows:

Whether the learned trial judge erred in law to hold that the parties know the land in dispute and that failure by the Plaintiff/Appellant to tender relevant documents during trial was fatal to the success of his case.
2. Whether the learned trial judge was not right to hold that the Appellant has not proved his case before him.

The Appeal will be decided based on the sole issue crafted by the Appellant.

ARGUMENTS ON THE ISSUE
Learned Counsel for the Appellant submitted that there are five ways of proving ownership of Land, he listed the five ways and referred to the case of IDUNDUN V OKUMAGBA (1976) 9-10 SC 337 for the point.

Counsel posited, that a party claiming title is not bound to plead and prove more than one root of title to succeed. That it is enough if he can prove only one of the recognised ways, but where he relied on more than one root of title, he has done so ex abundant catela. He cited EGBO V AGBARA (1997) 1 NWLR (pt. 481) 293 for the view.

He posited that the Appellant proved his title to the disputed Land by traditional evidence, wherein, he traced his family’s ownership to the

Land to Laroka who was the original owner of a vast parcel of Land at Wanikin Eleja Village, the Land in dispute inclusive.

Counsel submitted that it was Laroka that founded Wanikin Farmland inclusive of the Land in dispute many years ago.
That notwithstanding the discrepancies in the period of time mentioned by the Plaintiff, the Defendants admitted that Laroka belonged to ancient dynasty that reigned in Ile-Ife over 500 years ago, and by the native Law and Custom of Ife, as an Ooni could grant Land to himself and any subsequent grant of same virgin Land, as claimed by the defendants, would not have the backing of native Law and Custom.

Counsel argued that the Plaintiff/Appellant had stated as to how the defendants came into the Land in dispute as tenant, which assertion has not been denied by the defendants, but only gave a different line of history of a Virgin Land at Semolu Village. That the Land claimed by the defendants as described in the statement on Oath of Lasisi Ologbenla, has no bearing to the Land of the Plaintiff/Appellant, situated at Wanikin Family Farmland (the Land in dispute).

Counsel submitted that though both parties

are descendants of Ooni of Ife from different ruling houses, but Laroka from whom the Appellant claimed ownership of the disputed Land, was an Ooni of Ife before Ologbenla later became the Ooni. Therefore, said counsel, the Land in dispute belongs to the Appellant.

Learned counsel reasoned that being in possession of a parcel of Land, notwithstanding the length of time, does not make the occupier the owner. He cited JEGEDE V GBAJUMO (1974) 10 SC 109, AKINLOYE & ANOR V EYIYIOLA (1968) NMLR 93 at 95, BELLO ISIBA & OR V HANSON & OR (1968) NMLR 76 at 78 for the view.

He submitted that the non-collection of “lshakole” from the Defendants does not make the Defendants owners of the disputed Land. That the learned trial judge was wrong to have make reference and/or infer from a judgment pleaded by the Appellant but not tendered. He further submitted that the defendants/Respondents admitted that their Land is at Semolu Village which is different from that of the Appellant, though the Lower Court finds that the parties knew the Land in dispute, different names were ascribed to the Land. He said that the Appellant has proved his case and urged the Court to so hold

Counsel submitted that as part of exercising ownership on the entire land, including the disputed Land, the Plaintiff/Appellant were compensated by the Federal Government upon acquisition of a part of the Land, near the Land in dispute, as shown in Exhibit P1.

He submitted that the yardstick upon which the trial judge dismissed the Plaintiff’s claim is rather unheard of and it is unknown to Law. He urged the Court to set aside the judgment of the trial Court and grant the Appellant’s reliefs.

On his part, the Learned Counsel for the Respondents submitted that the learned trial judge was right to have held that the farmland in dispute is well ascertained by the parties. That where the area of a land in dispute is well known to both sides, the issue of proof of it does not arise. He cited OSHO V. APE (1998) 8 NWLR (pt. 562) 492 at 495 for the view.

He argued that where parties by the evidence adduced, are ad-idem on the identity of land in dispute, the fact that different names are given to the land or the area where the land is located is not fatal to the party claiming such land. He cited OGBU V. WOKOMA (2005) 14 NWLR (pt. 944) 118.

He posited that there are five ways of establishing title to land and a plaintiff may adopt one or more of the five ways in proving his claim. That where a plaintiff fails to prove his case by means of traditional history or by means of evidence and of acts of ownership and possession, his case will be dismissed. He cited Mkpinang v. Ndem (2012) 52 (pt. 2) CQR 146 at 158.

Counsel submitted that, by paragraphs 3, 5 and 9 of the Appellant’s Amended Statement of Claim, he claimed that his ancestors became seized of the land by settlement before he became the Ooni of Ife, but in his evidence in chief, he abandoned the evidence of settlement of acts of ownership and pleaded a judgment in Suit No: HIF/95/62. Agreement prepared and signed by the plaintiff’s family acknowledging the defendants as tenants but decided not to tender them in evidence.

Learned Counsel submitted that facts pleaded which are not admitted by the opponent ought to be proved by evidence or deemed abandoned. He cited OLUSANYA V. OSINLEYE (2013) 9 S.C.M 189 at 202 for the point.

He reasoned that the Appellant did not give evidence to cover his pleaded

root of title. He failed to tender vital document in his claim of ownership of the land. That he also failed to prove that the defendants are tenants of his family. Therefore, said counsel, the issue of forfeiture cannot stand. He submitted that the Appellant has failed to prove that the land in dispute is the exclusive property of Wanikin Family of Ile-Ife and equally failed to give evidence to cover his pleaded root of title. That the findings of the learned trial judge were premised on the evidence led before it. That evaluation of evidence and ascription of probative value to such evidence are the primary duty of a trial Court. Where a trial Court properly evaluates and justifiably appraises the facts, an appellate Court cannot interfere to substitute it with its own view. He cited the case of CHARLIE v. GUDI (2007) 2 NWLR (pt. 1017) 91, AGBALUGO & ANOR v. IZUAKOR (2017) LPELR 43289 for the point. He urged the Court to so hold and resolve this issue in favour of the Respondents and dismiss the appeal.

RESOLUTION
A careful reflection on the submissions of counsel on the sole issue nominated by the Appellant would show that the

Appellant’s complaint in this Appeal is on the evaluation of the evidence led before the trial Court and the conclusion reached thereat by the Learned trial Judge. I find it pertinent to point out that, the Appellant as plaintiff claimed for declaration of title to the Land in dispute. It has been long established Principle of Law that, in an action for declaration of title to Land, the onus is on the plaintiff to prove his ownership of the Land in dispute and the burden never shift. To succeed, the plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case except where the evidence adduced by the defendant clearly support his claim. See KOLO V. LAWAN (2018) LPELR 44378 (SC), TUKURU & ORS V. SABI & ORS (2013) LPELR 20176 (SC), OKOYE & ORS V. NWANKWO (2014) LPELR 23172 (SC).

There are five distinct ways of proving title or ownership of Land, and establishment of one of the ways is sufficient proof of ownership. In the instant case, the Appellant/Plaintiff claimed title of the Land through traditional history. Indeed, he is entitled to do so, as a party may anchor his claim of title to Land on one

or more of the modes of proving title.

Where a party’s claim of title to Land is based on traditional history, he has the duty to plead and lead evidence showing:
a) Who founded the Land,
b) How he founded the Land; and
c) The particulars of the intervening owners through whom he claims.
See AKANBI V. SALAWU (2003) 13 NWLR (pt. 1149) 353; EYO V. ONUOHA & ANOR (2011) LPELR 1873 (SC), ARUM V. NWOBODO (2013) 10 NWLR (pt. 1362) 374.
From the pleadings, the Appellant grounded his root of title on inheritance which translates as traditional history. The Appellant in this regard, is saddled with the responsibility of pleading and proving genealogy, a claim of devolution of the property back to the original owner without leaving any yawning gap. See MATANMI V. DADA (2013) LPELR19929 (SC), ANYAFULU & ORS V. MEKA & ORS (2014) LPELR 22336 (SC), NWOSU V. ELUWA & ORS ( —- ) LPELR 41686.
It is clear from the pleadings of the Appellant and evidence adduced by him, that his claim was based on inheritance which borders on traditional history. The Law is that, where title to Land is said to have been derived by grant or

inheritance, the pleadings must aver facts relating to the founding of the Land in dispute, the person(s) who founded the Land and the persons on whom title in respect of the Land had devolved since the first founding. In the case of DAGACI DERE V. DAGACI OF EBWA (2006) 2 NWLR (pt.979) 382 per Tobi, JSC held thus:
“In land matters, it is easy for a plaintiff to claim that he owned the land from time immemorial. But that is not the end of the story. The story must go further and paint a genealogical tree of the family ownership of the land. It is usually a long story of the members of the family in ownership of the land from the past to the present. The plaintiff paints a picture of genealogical lines and names spreading like the branches of a tree, telling a consistent and flowing story of undisturbed ownership or possession of the land. And the flowing story which should first be told in the pleadings should mention specific persons as ancestors before the witnesses give evidence in Court to vindicate the averments in the pleadings. Party must not only plead and establish his title to the land, he must also plead and prove the title of the person from

whom he derived his alleged ownership of the land in dispute.”

From the pleading of the Appellant, it is depicted that he was the descendant of Ooni Laroka and they inherited the land in dispute from their ancestor Ooni Laroka. He averred that Laroka founded and settled at Wanikin Village about 500 years ago and became the Ooni of Ife. The Appellant pleaded that the reigning of his ancestor Laroka as Ooni could not be easily be recalled, therefore, he cannot recall the period as Ooni because it had gone into memory lane. He admitted that they are from the same Royal Family with the Respondents though of different compounds. He pleaded that with the intervention of one Pa. Adedipe the Land in dispute was shared into two portions between the Appellant and the Respondents’ family and the Appellant now claim exclusive ownership. The Appellant equally maintained that the Respondents are their “non Ishakole” paying tenants and both parties called witnesses in that regards. The sharing of the tenants on the Land between the Appellant’s and the Respondents’ Families had recognized the Respondents’ Family as Landlord on the disputed

Land. Therefore, the Appellant in my respective view cannot claim exclusive ownership of the Land in dispute. In this regard, the learned trial judge held at page 463 of the record thus:
“…can this Court say that a plaintiff who gave evidence that he shared tenants on equal proportion with the defendants on a disputed Land, is the exclusive owner of the said disputed Land? The answer is in the negative.”
The Appellant in my view, has just laid foundation for the failure of his claim, this is because, he has not given sufficient information as regards the exclusive ownership of the Land he claimed and has not proved unbroken line of succession to himself. Since the Appellant claim was premised on traditional history, the duty rested squarely on the Appellant to prove his claim by cogent and credible evidence. The burden is equally on him to prove the unbroken claim of his successors without leaving any yawning gap which he failed to do. Another grouse which the Appellant weaved against the lower Court decision is in respect of the identity of the Land in dispute.
The lower Court held at pages 456 thus:

“In the case before me, the parties know the extend of the disputed Land by various boundry descriptions in their pleadings and also Exhibit P1, i.e. the disputed survey plan tendered in this case. Consequently, I hold that the Land in dispute is well ascertained.”

This is what the Appellant castigated and submitted that the Land in dispute was not ascertained. The Law is that, for a party seeking declaration of title to Land and injunction, must establish to the satisfaction of the Court the identity of the Land in dispute with precision. This can be established by the party tendering a survey plan that showcase the extent and features on the land or by offering oral evidence that will guide a surveyor using his description to produce a survey plan therefrom. See AYANWALE V. ODUSAMI (2011) 18 NWLR (pt. 1337) 140, TUKURU V. SABI (2013) 10 NWLR (pt. 1363) 442.

Relatedly, where the area of the disputed land is well known to both parties, as in the instant case, the issue of proof of it does not arise. Indeed, where the area is well known to the parties, or where the identity of the land is not in dispute, or where there is enough evidence for the Court to infer the

identity of the land, the question of proof of the identity of the land does not arise. OSHO V. APE (1998) 8 NWLR (pt. 562), EZUKWU V. UKACHUKWU (2004) 17 NWLR (pt. 902) 227, GBADAMOSI V. DAIRO (2007) 3 NWLR (pt. 1021) 282, YUSUF V. DADA & ANOR (2017) LPELR, ANAGBADO V. FARUK (2018) LPELR 44909 (SC).
In the instant case, it would be seen from the evidence on record that the parties are ad-idem as to the identity of the land in dispute, the only area of disagreement from the pleadings being the different names by which the parties described the said Land. The Appellant gave evidence that the said Land in dispute was shared into two between the Appellant and the Respondents’ Family. That it is the fractional part of the land of the Plaintiff/Appellant that the Respondents were holding onto. Therefore, the learned trial judge was not in error to have held that “In the case before me, I am not unmindful of the fact that parties ascribed different names to the disputed farmland but I have no doubt in my mind that the parties know the disputed farmland, otherwise, there would have been no need for the parties to approach the Court in the first instance.”

On the whole, I am unable to find through the record, where the Appellant offered the required cogent evidence to establish his case. In the absence of such evidence, the Appellant has not discharge the onus probandi imposed on him by Law.

The sole issue crafted by the Appellant in this appeal is resolve against the Appellant.
Having resolved the lone issue against the Appellant, the appeal lacks merit and deserve to be dismissed. Accordingly, I dismiss the appeal for lacking in merit.
Parties to bear their costs of prosecution and defence of this appeal.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read the draft of the leading judgment, in this appeal, just delivered by my learned Brother, R. M. ABDULLAHI, JCA.
I agree that the appeal is bereft of merits and accordingly dismiss it. I abide by the consequential orders made in the said leading judgment.

PATRICIA AJUMA MAHMOUD, J.C.A.: I read in draft the lead judgment my learned brother, Ridwan M. Abdullahi, JCA just delivered and I entirely agree that this appeal lacks merit. In dismissing the

appeal I would like to emphasize on some of the points contained in the lead judgment.

The appeal was decided on the sole issue formulated by the Appellant to wit:-
“Whether the plaintiffs have not proved the ownership of the land in dispute and the Court has not determined the case of the plaintiff on extraneous facts.”

An ancillary issue that arose for determination from this sole issue was whether the identity of the land in dispute between the parties was ascertained. Generally, a plaintiff’s claim for declaration of title to land succeeds only where the identity of the land in dispute is ascertained or proved.
In other words, the primary duty placed on a plaintiff who comes to Court to claim a declaration of title to land is to show the Court clearly, the area of land to which his claim relates so that the land can be identified with certainty -GBADAMOSI V DAIRO (2007) 3 NWLR PT 1021, 282; ARABE V ASANLU (1980) 5-7 SC, 78; OTANMA V YOUDUBAGHA (2006) 2 NWLR, PT 964, 337 and AFEKHUAI & ANOR V ODUBONA (2017) LPELR-42889 (CA).
However, where the land in dispute is well known to both sides, the issue of proof of it does not

arise as the Court cannot possibly reach a conclusion that the area claimed is not certain. This means in effect that where as in the instant case, the parties know the identity of the land, the subject matter of their dispute, the requirement that the plaintiff prove the identity of the land ceases to be a necessity: OKONKWO V ADIGWU (1985) 1 NWLR, PT 4, 694; BURAIMOH V BAMGBOSE (1989) 3 NWLR, PT 109, 352 and MABERI V ALADE (1987) 2 NWLR PT 55, 101.
I agree with the Respondents counsel that the fact that parties in the suit refer to the land in dispute by different names does not necessarily make the land unascertainable: OGBU V WOKOMA (2005) 14 NWLR, PT 944, 118; MAKANJUOLA & ANOR V BALOGUN (1989) PT 13 NWLR 409; AIYEOLA V PEDRO (2014) LPELR 22195 (SC) and IHEMEREMADU & ORS V OKPECHI & ORS (2018) LPELR – 44767 (CA).
In the instant case, notwithstanding the difference in the names they ascribe to the land in dispute, parties are glaringly referring to one and the same piece of land. The trial Court in my view, rightly found among other findings that the parties knew the land in dispute and that failure by the plaintiff/Appellant to

tender relevant documents during trial was fatal to the success of their case.

For the foregoing, but more for the fuller reasons well-articulated in the lead judgment, I also dismiss this appeal for lacking in merit.
I too make no order as to costs.

Appearances:

I. Omirin, ESQ. with him Busayo Egbewole For Appellant(s)

O. Awe, Esq. For Respondent(s)