OGUNLEYE & ORS v. OJO & ANOR (2020)

OGUNLEYE & ORS v. OJO & ANOR

(2020)LCN/15308(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Monday, June 08, 2020

CA/EK/77/2018

Before Our Lordships

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

1) MR. SUNDAY OJO OGUNLEYE 2) MR. BABALOLA OLABODE OLUSEGUN 3) MR. OLUWATOYIN OGUNLEYE APPELANT(S)

And

1) MR. SUNDAY OJO 2) MR. MOSES FALUYI RESPONDENT(S)

RATIO

THE METHODS OF ESTABLISHING TITLE TO LAND

There are five ways or methods established by law, through which a Plaintiff or Claimant may establish title to land in the event that such title is challenged. These methods are as follows:
a. By traditional evidence.
b. By production of document of title duly authenticated and executed;
c. By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of time ownership;
d. By acts of long possession and enjoyment; and
e. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See the cases of Idundun v. Okumagba (1976) 9-10 SC; Nwokidu v. Okanu (2010) 1 SCNJ 167; Nruamah v. Ebuzoeme (2013) SCNJ 128.
It is trite that a Claimant is not expected to prove all the above five ways to establish his claim for declaration; it will suffice if a Claimant establishes his title by proving one of the five ways or methods stated above by credible and satisfactory evidence. See Nruamah v. Ebuzoeme (supra); Peter Ojoh v. Owuala Kamalu & 3 Ors (2005) 12 SCM 332; (2005) 12 SCNJ 236 @ 261; (2005) 18 NWLR (Pt. 958) 523 @ 574-575. PER AKINBAMI, J.C.A.

WHETHER OR NOT A PLAINTIFF WHO CLAIMS FOR DECLARATION OF TITLE MUST SUCCEED ON THE STRENGHT OF HIS CASE AND NOT THE WEAKNESS OF THE DEFENDANT

It is also established in law that where a Plaintiff claims for declaration of title, he must succeed on the strength of his own case and not on the weakness of the case for the defence. It was held in Nwokidu v. Okanu (supra) that “in a claim for declaration of title like in all civil matters, the onus is on the Plaintiff to prove his case. He must in the process rely on the strength of his own case and not on the weakness of the defence, except where the weakness of the Defendant’s case tends to strengthen the Plaintiff’s case. Unless a Defendant files a counter claim, the Plaintiff has the primary duty to establish his claims by credible and consistent evidence in accordance with his pleadings. He must satisfy the Court that he is entitled on the evidence brought by him to the declaration claimed.” See also Odofin v. Ayoola (1984) 11 SC 72 @ 119; Okafor v. Idigo (1984) 1 SCLR 481. PER AKINBAMI, J.C.A.

WHETHER OR NOT WHERE A PARTY SEEKING DECLARATION OF TITLE TO LAND RELIES ON TRADITIONAL HISTORY AS HIS ROOT OF TITLE, MUST PROVE THE SAME

FACTORS TO PLEAD WHEN RELYING ON TRADITIONAL HISTORY AS ROOT OF TITLE TO LAND

In Nruamah v. Ebuzoeme (supra), it was held that a party who is relying on traditional history must specifically plead and prove the following before the trial Court.
a. Who founded the land in dispute?
b. On what manner was the land founded?
c. The names and particulars of successive owners through whom he claims. See also Akinloye v. Enyiyola (1968) NWLR 92; Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238; Lawal v. Olufowobi (1996) 12 SCNJ 376. PER AKINBAMI, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE BEFORE IT

The Apex Court held in the case of Odutola v. Mabogunje (2013) 1 SCNJ 175 @ 178 that:
“It is the duty of the trial Court to receive all relevant and admissible evidence that is perception. The next duty is weigh the evidence received from both sides and decide where the scale tilts on qualitative and compelling evidence, that is evaluation. A finding of fact involves both perception and evaluation. It is not the duty of the Appeal Court to evaluate evidence. This is the primary responsibility of the trial Court. But where the trial Court fails to evaluate evidence properly, the appeal Court is duty bound to re-evaluate evidence and make correct findings of its own.” PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the decision of the High Court of Ekiti State, sitting at Ikole-Ekiti, delivered by Hon. Justice L. O Ogundana in Suit No. HCL/16/2013 on 15th May, 2017. The judgment is contained at pages 372-412 of the record of appeal.

In the said suit, the plaintiffs/appellants in their Amended Writ of Summons and Amended Statement of Claim dated and filed 6th January, 2017, claimed against the defendants as follows:
1. A declaration that the vast parcel of land situate, lying and being beside and behind the General Hospital, Ikole-Ekiti, stretching to Federal Government College, Ikole-Ekiti and terminating at Igbomekiku, along Ikole/Omuo express way, and bounded on the 1st side by Ikunri, on the 2nd side by lode quarters, on the 3rd side by Olisin Olosin and Agbaru family land, and the 4th side by Olisin Olosin and Agbaru family land belongs to Ogunleye family of Oke-Ayedun Ekiti, not the defendants.
2. A declaration that the purported sale of the Ogunleye family land by the defendants without remitting the money to the family is illegal, null void and of no effect whatsoever.
3. A declaration that the illegal allottees have no title to the portions of the Ogunleye family land purportedly transferred to them by the defendants.
4. An order of perpetual injunction restraining the defendants, their agents, privies or assigns from further transferring, selling or allocating the family land to anybody.
The defendants reacting to the Amended Writ of Summons and Statement of Claim, filed with the leave of Court, a further amended joint statement of defence dated 31st, January, 2017 alongside further amended statement on oath of the 1st and 2nd defendants.

The case went into trial at which the plaintiffs/appellants called three witnesses whilst the defendants/Respondents called two witnesses. Documents were tendered and admitted in evidence. At the end of the trial counsel for both parties addressed the Court through final written addresses and the Court adjourned for judgment.

In its judgment which can be located at pages 372-412 of the record of appeal, the Court dismissed the plaintiffs/appellants claims.

Aggrieved by the judgment of the Court, the plaintiffs/appellants filed a Notice of appeal against it on 29th January, 2018 containing an omnibus ground of appeal. The plaintiffs/appellants subsequently sought and obtained leave of Court, to amend the Notice of Appeal on 10th of June, 2019.
I shall hereafter refer to the plaintiffs/appellants and defendants/Respondents as simply, Appellants and Respondents.

I hereunder reproduce the grounds of appeal without necessarily stating their particulars:
Grounds
1. The learned trial judge erred in law when he held that the onus or burden of proof rested on the Appellants.
2. The learned trial Judge erred in law when he held that the Appellants failed to prove their title to the land in dispute.
3. The judgment of the lower Court is against the weight of evidence. The Appellants’ Brief of Argument settled by Dr. Alfred Oluropo Filani, was filed on 15th of August, 2019, and deemed properly filed and served on 17th of September, 2019.

Therein two issues were distilled for determination as follows:
1. Whether or not the initial burden of proof was on the Appellants or the Respondents.
2. Whether or not the Appellants actually discharged the burden of proof required of them by law.

In the Respondents brief of argument, settled by S. A. Aruleba Esq., and filed on 2nd October, 2019, Appellants’ two issues were adopted for determination.
The first issue distilled by the Appellants’ encapsulates the second issue. I will determine this appeal on Appellant’s issue 1.

The appeal was heard on the 12th day of March, 2020.
Dr. Alfred Filani, of counsel who appeared for the Appellants adopted the Appellants’ Brief of Argument and urged us to allow the appeal and set aside the Judgment of the trial Court dated the 15th of May,2017.

Mr. S.A Aruleba, of learned counsel for the Respondents equally adopted the Respondents’ Brief of Argument and urged us to dismiss the appeal and affirm the judgment of the lower Court.

I now proceed to consider the issue arising for determination in this appeal:
“Whether or not the initial burden of proof was on the Appellants or the Respondents.”

Arguing issue 1, learned counsel for the Appellants submitted that, the regime of burden of proof is governed by Part ix of the Evidence Act. That Section 131(1) of the Evidence Act, 2011 states the general rule, that he who asserts must prove, while Subsection (2) of Section 131 says in effect that when a person is bound to prove the evidence of any fact, it is said that the burden of proof lies on such a person. That by the provisions of Section 132 of the Act, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The evidential burden of proof in civil cases is elucidated in Section 133(1) and 133(2) of the Evidence Act, 2011. Learned counsel cited the case of Okoye v Nwankwo (2014) All FWLR (Pt 356) 471 at 498-499; Federal Mortgage Finance v Ekpo (2004) 2 NWLR (Pt 856) 100; Balogun v Labiran (1988) (pt80) 66; Alao v Kure (2000) FWLR (Pt. 6)889.

Applying the principles distillable from the dicta in the case of Nwosu v Okoye (2008) ALLFWLR (pt451)815, to the concept of burden of proof viz-a vis the pleadings of the parties to the instant case, it would appear as if the exceptions to the general rule that the plaintiff or claimant always bears the evidential burden of proof, and has to first prove his/her case in his/her pleadings apply in the circumstances of the pleadings in this case and the reasons are not too far to seek.

He reproduced Respondents’ Further Amended Statement of Defence. He contended that while the Appellants are saying that the land in dispute belongs to Ogunleye family, the Respondents are saying that the land in dispute was jointly owned by Ogunleye and Aladesuyi, having inherited same from Obe. That the burden to prove that joint ownership, is by the pleadings of parties placed on the Respondents, yet constituting another exception to the general rule on burden of proof. He further submitted that, if it were the Appellants claiming that they are joint owners of the disputed land with the Respondents, the onus would have rested on them by their pleadings, to prove that they are joint owners of the land. Appellants’ counsel having argued that, the onus or burden to prove the joint ownership of the disputed land, by virtue of the pleadings, rests on the Respondents, the next duty is to evaluate the evidence on record with a view to ascertaining whether the joint ownership of the disputed land, by the Appellants and Respondents as pleaded by the Respondents in their statement of Defence, has been established so as to shift the burden to rebut same on the Appellants.

Learned counsel, further contended that all the exhibits tendered by the Respondents, did not support their claim that the land in dispute belongs to Ogunleye/Aladesuyi family. The claim of the Respondents is that the land in dispute belongs to Ogunleye/Aladesuyi family, while the Appellants are insisting that the land belongs to Ogunleye family.

On the evidence of DW1 and DW2, learned counsel contended that it would appear to be proof of joint acquisition of the land in dispute, by Ogunleye and Aladesuyi families, it cannot in law amount to the requisite proof that could sustain the claim of the Respondents.

Therefore, there was no legal justification for calling on the Appellants to call evidence in rebuttal of that, adduced by the Respondents, in the circumstances of the case in which they have not discharged the burden to first prove, thrust on them under Section 133(1)(2) of the Evidence Act, 2011 (as amended). Learned counsel urged this Court to resolve this issue in favour of the Appellants.

In his response on issue 1, Respondents’ counsel contended that the burden of proof in the case in this appeal is on the Appellants, being claimants at the trial Court. That in an action where declaration of title to land is an issue, the burden of proof lies on the claimants to satisfy the Court that he is entitled on the evidence brought by him to succeed. Therefore the claimant must rely on the strength of his case, and not on the weakness of the case of the defence. If the onus is not established, the weakness of the case of the defence or the fact that the defence did not file a statement of defence or participate in the trial, will not avail the claimant, and the proper order to make is one dismissing the claim. He cited the cases of Dakipiri Odi v Iyala & Ors (2004) 4 SCNJ 35; Thomas Nkuamah & Ors v Reuben Ebuzoeme & Ors (2013) 1 SCNJ @145.

Learned counsel contended that the Respondents were the defendants at the lower Court, they did not counter-claim, therefore do not in the ordinary sense have any burden to establish that they own the land. The duty is on the Claimants/Appellants, and it is even heavier because the Defendants/Respondents did not counter-claim. He cited the cases of Thomas Nruamah & Ors v Rueben Ebuzoeme & Ors (2013) 1 SCNJ 128 @146; Adekanbi v Jagbon (2007) All FWLR (pt. 383) 152 @160. He contended further that a claim for declaration is not established by admission of parties, as the claimant must satisfy the Court by credible evidence that he is entitled to the declaration. He cited the case of Fabunmi v Agbe (1985) 1 NSCC Volume 16 , 322 @ 340. He also submitted that the Court does not grant declaration of right in default of defence without hearing evidence, and being satisfied by such evidence. He cited the case of Kwajaffa v B.O.N. Ltd (1999) 1 NWLR (pt 587) 423 R.5; Bello v Eweka (1981) 1 SC 101; Ofoeze v Ogugua (1996) 6 NWLR (pt 455) 451 R. 6.

Learned counsel further submitted that from the pleadings and evidence of the Claimants/Appellants they have not proved their case satisfactorily to warrant the evidential burden of proof shifting on the Defendants/Respondents. He reiterated the fact that in their pleadings, the Claimants/Appellants did not prove their ownership of the land by stating any of the five ways known in law by which ownership of the land can be proved. He noted that CW1, under cross-examination said at page 275 line 8

“The land in question is not a family land.”

CW3, on page 310 line 3-6 of the record of appeal, under cross-examination said: ”I can tell the Court how my father came across the land. My grandfather was farming on the land being a government reserved land, he was arrested by the police for farming on Government land. The story is in a diary.”

Referring to the above pieces of evidence, learned counsel contended that they cannot prove ownership of land as laid down by the law. That CW3, did not state how the land suddenly became Ogunleye family land, if it was a Government reserved land. He reiterated the fact that the root of title of Ogunleye, was not established. He cited the case of Echenim Ofume v Isaac Ngbeke (1994) 4 NWLR (Pt 341) 746, R4.

The admission of the identity of the first defendant/Respondent was acknowledged by the claimants/appellants. They admitted that he has the same father as the 1st and 3rd Appellants. That the said 1st Respondent gave evidence that the land is a joint property of Ogunleye and Aladesuyi, the lineage of the 2nd Respondent. He urged this Court to believe same. He cited the case of Alon v Dandrill Nig. Ltd (1997) 8 NWLR (pt. 517) 495 @ 502 C-D. He urged this Court to discountenance the submissions in paragraphs 4.15 and 4.16 as mere academic exercise.

The law was reiterated by learned counsel that, he who seeks title to land must prove that title. The burden does not shift to the defendant. It is only after the plaintiff has given evidence of title to land, that the defendant may lead contrary evidence to demolish the plaintiffs’ evidence. He cited the case of Nwabuoku v Onwordi (2006) ALL FWLR (Pt 331) 1236. It was reiterated by learned counsel that, premised on Section 137 of the Evidence Act, what shifts is the evidential burden, not the legal burden or initial burden which remains static on the plaintiffs who brought the action, and who must succeed on the strength of his case. It is after a plaintiff has discharged the initial burden of proving the existence of the facts alleged by him, that the burden or onus of proving otherwise thereby shifts to the defendant pursuant to Section 137(2) of the Evidence Act. He cited the case of Alao v Kure (2000) FWLR (Pt 6) 889 R.10.

In his further submissions learned counsel referred to the fact that the Appellants rather than prove their case based on their declaratory reliefs, failed to do so, but shifted the entire onus of proof on the Respondents contrary to the law, as if the Respondents were the claimants in this case, who would bear the legal or initial burden of proving their declaration against their own blood brother, who is also a co-owner of the land in dispute. He reiterated the fact that the Appellants bear the onus of proving their exclusive ownership of the land as contained in their reliefs, having admitted, they both have right to the land. This can be gleaned from the evidence of CW3, on page 308-309, and evidence of CW1, on page 277 of the record of appeal.

Learned counsel cited the case of Shoshai Gambo v Zindul Turdam (1993) 6 NWLR (Pt. 300) 500 at 511 R4, in buttressing the point that, where the evidence show that the defendant is in possession of a disputed land, the onus is on the plaintiff to show that, he has a better right to possession which was disturbed, and unless that onus is discharged, the plaintiff cannot defeat the defendant. He urged this Court to so hold.

That the Appellants, who asserted the ownership of the land in dispute to the exclusion of the Respondents, the onus is on them to prove their assertion. He cited the cases of Nigeria Maritime Services LTD v Afolabi (1978) 2SC 79 at 84; Odofin v Mogaji (1978) 4 SC 91; Duru v Nwosu (1989) 4 NWLR (Pt 113) 24; Okiri v lfeagha (2000) FWLR (Pt 73) 140R 3 & 4.

Learned counsel further submitted that, by the evidence led, the Appellants did not discharge the onus placed on them by the law, to warrant the shifting of the burden to the Respondents. He reiterated that, in claim for declaration of title to land, and in injunction such as is being sought here, the onus of proof is on the plaintiffs/appellants who cannot base their claim on the weakness of the defendants/Respondents’ case. He cited the case of Addah v Ubandawaki (2015) 61 (pt. 2) NSCQR 1198 @ 1252-1253; Odom v PDP (2015) 61 (Pt 2) NSCQR 984 at 1038.

Learned counsel surmised that the initial burden of proof rests on the Appellants who did not prove their case satisfactorily to warrant the evidential burden of proof shifting on the Defendants/Respondents.

On the proper procedure on evaluation of evidence, that a trial judge ought to always start by considering the evidence led by the plaintiffs to see whether they have led evidence on all material issues they need to prove. If they have not so led evidence, or if the evidence led by them is so manifestly unsatisfactory, then they have not made out prima-facie case in which case, the trial judge does not have to consider the case of the defendant at all. He cited the case of Busari v Adepoju (2017) All FWLR (Pt. 878) 464; Duru v Nwosu (1989) 4 NWLR (pt. 113) 124.
Learned counsel urged this Court not to disturb same.

RESOLUTION OF ISSUE
This issue is centered round the burden of proof for declaration of title to land.
There are five ways or methods established by law, through which a Plaintiff or Claimant may establish title to land in the event that such title is challenged. These methods are as follows:
a. By traditional evidence.
b. By production of document of title duly authenticated and executed;
c. By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of time ownership;
d. By acts of long possession and enjoyment; and
e. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See the cases of Idundun v. Okumagba (1976) 9-10 SC; Nwokidu v. Okanu (2010) 1 SCNJ 167; Nruamah v. Ebuzoeme (2013) SCNJ 128.
It is trite that a Claimant is not expected to prove all the above five ways to establish his claim for declaration; it will suffice if a Claimant establishes his title by proving one of the five ways or methods stated above by credible and satisfactory evidence. See Nruamah v. Ebuzoeme (supra); Peter Ojoh v. Owuala Kamalu & 3 Ors (2005) 12 SCM 332; (2005) 12 SCNJ 236 @ 261; (2005) 18 NWLR (Pt. 958) 523 @ 574-575.

The learned trial judge on pages 404-405 of the record of appeal, referred to the legal requirements for establishing title to land, which in my humble view require answers to enable a party and in particular, the Plaintiffs/Appellants herein, for them to succeed in their claim for declaration of title to the land in dispute. He stated thus:
“Applying all the principles highlighted above to this case at hand, let me say from the onset that I have meticulously looked at the pleadings of the claimants herein without seeing, in the least, anywhere in the pleadings of the claimants, on whom the burden of proof lies squarely and permanently, where any of the ways of proving ownership of the disputed land or modes of acquisition of title to the land is pleaded. A look at the amended statement of claim dated 12th December, 2016 and filed on 6th January, 2017 will show that all that is pleaded therein, is that the disputed land belongs to the Ogunleye family of Oke Ayedun-Ekiti, without stating how the title thereto was acquired by the Ogunleye family of Oke Ayedun-Ekiti. Rather than eloquently plead facts from which any of the five (5) ways of proving title to land or modes of acquisition of title to land as stated in Idundun v Okumagba (1976) 10 NSCC 445 @453 and Jodi v Salami (2009) All FWLR (pt. 458) 385 can be gleaned, the grouse of the claimants against the defendants is just encapsulated in the averment forming paragraph 7 of the amended statement of claim thus:
“7. The claimants aver that the defendants and late Joseph Ajayi Ogunleye without the consent and approval of the family transferred various portions of the claimants’s family land to many people including Messrs Sanmi Olawumi, Kolawole Ilesanmi, Olu Arije, Susan Falaki and llori.”

The question now is whether the Plaintiffs/Appellants herein have satisfied the above duties considering the evidence before the Court.

The Appellants, from the evidence on record relied on traditional evidence in an effort to establish their title to the land in dispute. It is pertinent to note that the burden in all civil cases are discharged on the balance of probabilities or on the preponderance of evidence. See Section 134 of the Evidence Act, 2011.

In the Amended Statement of Claim, in paragraphs 1-6 Appellants stated:
“1. The 1st to 3rd claimants are principal members of Ogunleye family of Oke Ayedun Ekiti.
2. Late Joseph Ajayi Ogunleye was the last head of Ogunleye family of Oke-Ayedun Ekiti.
3. The 1st Defendant is the son of Stephen Ojolagbo Ogunleye.
4. The 2nd Defendant is the son of Aladesuyi Obe. Aladesuyi Obe and Ogunleye were of the same father. The 2nd defendant is not a member of Ogunleye family, but was merely allowed to farm on the land.
5. The Claimants family farmlands are situate, lying and being along Ayedun Road, starting from the Specialist Hospital, Ikole-Ekiti to Oke-Ayedun as well as the opposite side of the Federal Government College, Ikole-Ekiti to Oke-Ayedun Ekiti and terminating at Igbomekiku along Ikole-Omuo Ekiti Expressway.
6. The Claimants family land is bounded on 1st side by Ikunri Quarters, Ikole Ekiti, on the 2nd side by Irode Quarters, on the 3rd side by Olisin Olosin and Agbaru family lands and on the 4th side by Olisin Olosin and Agbaru family lands.”

From the pleadings of the Appellants, and their evidence before the Court, I can conveniently say that the trial Court did proper evaluation of evidence before arriving at its decision:
“Throughout the length and breadth of the pleadings of the claimants, there is no shred of fact pleaded from which any of the five(5) ways of proving title or mode of acquisition of title can be gleaned. Rather than plead facts pointing to how the Ogunleye’s family became the owners of the disputed land, the claimants only dedicated the whole of their reply to the defence of the defendants to drawing a distinction between the Ogunleye’s family and the Aladesuyi/Faluyi’s family, whereas that family is not a party to this suit, and no relief is sought against it, but against Moses Faluyi, the 2nd defendant, who was only sued in person as against a representative of the Aladesuyi or Faluyi’s family.”

I must state that, there is no doubt that the law is firmly settled, and needs no restatement that a plaintiff or Claimant who claims or seeks for declaration of title to land, or right to statutory right of occupancy must give credible or believable evidence, to establish or indicate his ownership of the land to enable the Court exercise its discretion in his favour.
The Claimant or the Plaintiff must also identify the land or parcel of land he claims with clarity. This is imperative particularly where such Claimant or Plaintiff is also seeking for Order of Injunction to restrain his adversary from trespassing or further trespassing or encroaching upon the land or res he claims.
It is when he has been able to prove all of these, that onus will shift on the Defendant to show a better title. The Claimant or the Plaintiff, in an action for declaration of title is only required to prove his case on the balance of probabilities, and he can do it in any of the five ways established by the decisions of the apex Court in the land. I call in aid the following decisions:-
1. NAPOLEON ORIANZI VS THE A.G. OF RIVERS & ORS (2017) 6 NWLR (PT.1561) 224 AT 264 E-H – 265 A – C per Galumje, JSC who said:-
“Clearly, the appellant set out a claim for declaration of title to the disputed property. The law is settled that the burden of proof in a claim for declaration of title to land lies on the plaintiff, who generally must rely on the strength of his own case and not on the weakness of the defendant’s case.”
See Kodilinye v. Odu (1935) 2 WACA 336; Udegbe v. Nwokafor (1963) LSCN-P 154; Woluchem v. Gudi (1981) 5 SC 291; Piaro v. Tenalo (1976) 12 SC 31.
In this case, the Appellants who were the claimants at the trial Court, had the burden to prove that they are entitled to the declaration which they sought at that Court, and they were required to discharge this burden of proof on preponderance of evidence.
It is also the law that a claim for declaration of title to land may be proved by any of the five ways stated and restated in numerous decisions of this Court. See Piaro v. Chief W. Tenalo (supra); Idundun v. Okumagba (1976) 1 NMLR 200; Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192; Olukoya v. Ashiru (2006) All FWLR (Pt. 322) 1479; (2006) 11 NWLR (Pt.990) 1.
Counsel for the Respondents, correctly asserted that there was no onus on the Respondents in the instant case to prove the identity of the land in dispute, since the Appellants did not join issues with the Respondents in the pleadings on the point, and he relied on the case of Kwajaffa v B.O.N Ltd (1999) 1 NWLR (PT. 587) 423R5; Bello v Eweka (1981) 1 SC 101; Ofoeze v Ogugua (1996) 6 NWLR (Pt 455) 451R6.

In their pleadings, the Claimants/Appellants did not prove their ownership of the land by stating any of the five ways known in law by which ownership of the land can be proved.

CW1, under cross-examination said: “The land in question is not a family land.” See page 275, line 8 of the record of Appeal.

CW3, under cross-examination said; “I can tell the Court how my father came across the land. My grandfather was farming on the land being a government reserved land, he was arrested by the police for farming on government land. The story is in a diary.” See page 310, and line 3-6 of the record of appeal.

The above pieces of evidence cannot prove ownership of land as laid down by law as rightly found by the learned trial judge:-
“I have also gone through the evidence adduced by the claimants in totality, both under examination-in-chief, and cross-examination, with the result that there is nothing therein, pointing to or suggestive of proof of, or the establishment of how the Ogunleye family suddenly became the owner of the disputed land, or how it acquired title thereto within the context of the principles of law laid down in Idundun v Okumagba (supra) and Jodi v Salami(supra). The nearest to it, but which seriously and incurable falls below the expected standard are paragraphs 15, and 16 of the amended additional written statement on oath of Mr. Babalola Olabode Olusegun, the 2nd claimant who doubles as PW1, in this matter.”

The learned trial judge further in the judgment stated:-
“As if that was not enough, learned counsel for the claimants, Dr. Ropo Filani, without pleading any jot of fact or leading evidence pointing to that direction, just hand-picked “acts of ownership over a period of time” in the options listed in ldundun v Okumagba (supra) and placed heavy reliance on same as the claimants’ root of title, brandishing same to high heavens, just like an international talisman or magic wand on the strength of the exhibits listed in the paragraphs mentioned above. I am in quandary whether this accords or finds favour with the law.”

What a party seeking for a declaration of title to land and relies on traditional history as proof of his root of title must plead was defined in the case of CHUKWUEMEKA ANYAFULU & ORS V. MADUEGBUNA MEKA & ORS (2014) LPELR-22336(SC) per Okoro, JSC as follows;
“It is trite that a party seeking for a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say, he must demonstrate in his pleading the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Where a party has not given sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim. See HYACINTH ANYANWU V. ROBERT ACHILIKE MBARA & ANOR (1992) 5 SCNJ 90, IDUNDUN V. OKUMAGBA (1976) 9 – 10 SC 224, ATANDA V. AJANI (1989) 3 NWLR (Pt. III) 511.”
From the pleadings of the Claimants/Appellants, in their Amended Statement of Claim, they filed their Writ of Summons in a Representative capacity and in paragraph 1, it is clear that they filed the suit as principal members of the Ogunleye family. The Appellants, in the length and breadth of their pleadings, did not demonstrate the original founder of the land, how he founded the land, the particulars of intervening owners.
The Appellants’ claim must fail because they relied on traditional history in proof of their declaration of title to land, but did not establish such facts as who founded the land, how he founded the land and particulars of the intervening owners through whom they claim. See the Supreme Court case of Ukaegbu v Nwololo (2009) 3 NWLR (Pt.1127) page 194 at 220-221.
In this instant appeal, since it is a long established principle of law that a party is bound by his pleadings, the Appellants having failed to plead and give evidence of the root of title of Ogunleye family land, that should have been the end of their case, Appellants having failed to prove their case, they are not entitled to judgment.

Consequently the appeal which is unmeritorious is hereby dismissed.
The suit of the Appellants No: HCL/16/2013 is hereby dismissed.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

Dr. A. O. Filani For Appellant(s)

S.A. Aruleba Esq. For Respondent(s)