YALOKWU & ANOR v. OFULUE & ANOR (2022)

YALOKWU & ANOR v. OFULUE & ANOR

(2022)LCN/16636(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, May 13, 2022

CA/AS/71/2013

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. MRS. ELIZABETH YALOKWU (NEE ADUBOR) 2. PASTOR JOHN ADUBOR (For Themselves And On Behalf Of The Children Of Late Pa. Benjamin O. Adubor Of Ubulu – Uku) APPELANT(S)

And

1. H.R.H. OBI EDWARD AKAEZE OFULUE III 2. UDO OKONTA RESPONDENT(S)

RATIO

WAYS OF PROVING TITLE OF OWNERSHIP TO LAND

It is a settled principle of law that there are five ways of proving ownership or title to land, to wit:
I. By traditional evidence;
II. By production of documents of title duly authenticated and executed;
III. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;
IV. By acts of long possession and enjoyment;
V. By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.
See ARIJE v ARIJE & ORS (2018) LPELR – 44193 (SC), IDUNDUN v OKUMAGBA (1976) 9 – 10 SC 227 AT 246, NKADO v OBIANO (1997) 5 SCNJ 33 AT 47, OWHONDA v EKPECHI (2003) 9 – 11 SCNI AT 6. PER OBASEKI-ADEJUMO, J.C.A.

THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

The position of the law is as put by the apex Court that where a party of relies and pleads a grant as his root of title, he is under a duty to prove such a grant to the satisfaction of the Court, other evidence of acts of possession only strengthens the grant. See AJIBULU V MAJOR GEN D.O. AJAYI 2013 LPELR -21860 (SC). Position of the law is well settled, that where a party relies and pleads a grant as his root of title, he is under a duty to prove such a grant to the satisfaction of the Court.
See SUBERU GIWA & ANOR V MURAINA AKINLABI & ORS 2012) LPELR – 20426 (CA) RELYING ON OBASI & ORS V OTI& ANOR (1967) NWLR 74 at 75 Supreme Court held that ‘’In our experience an outright grant of land to live on is no uncommon, an outright grant of land for cultivation is unusual but not unheard of but an outright grant of land which is not required either for living or for cultivation is so exceptional that it would only be proved by the clearest possible evidence and should be presumed. AGULU V DANJUMA KELEDI & ORS (2021) LPELR-54216 (CA) SALAJA V SALAJA (2013) LPELR – 21967 (CA), ODOFIN V AYOOLA (1984)11SC 72, ADISA V OYINWOLA (2000) 10 NWLR (PT 674) 116. PER OBASEKI-ADEJUMO, J.C.A.

THE POSITION OF LAW IN RELYING ON THE PROOF OF ACTS OF POSSESSION AND OWNERSHIP

THE POSITION OF LAW ON THE ISSUE OF DAMAGES IN AN ACTION FOR TRESPASS

On the issue of damages for trespass, it is trite that the fact that a claim for declaration fails does not mean that the claim in trespass would also fail. Trespass is rooted in possession and not on title or ownership of the land.
From the pleadings before the Court, the fact that the Appellants have been and were in possession of the land in dispute for years is not in dispute; however, the Appellants failed to prove absolute grant by the Obi Ofulue.
In ELISAHA KWEWUM v BAKO EYI (2015) LPELR – 25633 (CA) the Court held:
It bears emphasis that for a plaintiff to institute to commence action on trespass, he must show that he is in exclusive possession, exclusive in the sense that he does not share his right of possession with any other person. A plaintiff needs not show ownership, proof of actual possession can sustain an action in trespass. The slightness possession in the plaintiff enables him to maintain an action for trespass if the defendant cannot show a better title.” PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Honourable Justice T. O. Diai of the Delta State High Court sitting at Ogwashi – uku division delivered on 31st July 2012 wherein judgment was entered in favour of the Respondent. Furthermore, Appellant allege that the learned trial judge on the 26th February, 2013 amended the judgment already delivered on 31st July, 2012 and backdated same to reflect the first judgment having realized that the facts (customs) and evidence adduced by the parties were not reflected in his judgment.

The facts leading up to this appeal is that late Pa. Benjamin O. Adubor who was a native of Ubulu – Uku lived and spent all his life at Ubulu – Uku where he served the Obi Ofulue I meritoriously, In 1988, he died and was buried in Ubulu – Uku in accordance with Ubulu – Uku native law and customs. He was the biological father of the Claimants/Appellants in this suit and in 1925, he was given a grant absolute in respect of the piece or parcel of farmland in dispute by late Obi Ofulue I, the Obi of Ubulu-Uku. The children of Pa. Benjamin O. Adubor including the Claimants/Appellants succeeded their father after his death and took over their fathers’ property until in 2009 when the Defendants/Respondents came and trespassed unto the property of the Claimant/Appellants’ ancestors challenging that Claimant/Appellants’ ancestors were not indigenes of Ubulu – Uku community to have acquired the land. The contention of the Defendants/Respondents is that the land in dispute is owned by Ubulu – Uku community and the original 1st Respondent is its custodian under Ubulu – Uku native law and custom. The land was not granted to the Appellants’ father in 1925 as Obi Ofulue ascended the throne in 1925. The lands in Ubulu Uku community were owned by the Obi.

The Appellants who were the Claimants at the lower Court are natives of Ubulu – Uku community including the Respondents. The Claimants/Appellants claimed against the Defendants/Respondents jointly and severally as follows:
a) A Declaration that the Plaintiff’s children of late Pa Benjamin O. Adubor of Ubulu – Uku are entitled to the Statutory Right of Occupancy to all that piece and parcel of land situate between the Ubulu Aluminium factory on the West and St. Anthony’s College on the East along Umunede/Ogwashi – Uku Road, Ubulu – Uku as contained in the Plan No. IBO/BD/15/88 dated 9th January, 1988 prepared by F. O. Iyawe, the land being known by the parties.
b) Perpetual injunction restraining the Defendants, their agents, servants or their privies from further selling the land, or cutting down the economic crops/destroying the economic farms thereon or threatening the lives of the Plaintiffs and their Tenants.
c) Five Million Naira (N5,000,000) as damages for trespassing and destruction of the plaintiff’s economic crops thereon.

The lower Court in his judgment dismissed the Appellants’ claim on the ground that they did not prove their root of title to the said land wit: grant by Obi Ofulue 1 to their father or establish that the Respondents trespassed on the land in dispute.

Displeased with the said judgment of the trial judge, the Appellants appealed to this Honourable Court via a notice of appeal dated 28th September, 2012 containing two omnibus grounds of appeal. Appellants further filed their amended notice of appeal on 24th October, 2019 containing four grounds of appeal.

In accordance with the rules of this Court, parties filed and exchanged their briefs of argument.

The Appellants’ brief was filed on 24th January, 2019 and their reply brief was filed on 17th March, 2021. Both briefs were prepared by A. S. Laleye Esq., and S. U. Eboigbodin Esq., of S. U. EBOIGBODIN LAW FIRM, wherein the following issues were raised for determination:
1. WHETHER THE CLAIMANTS/APPELLANTS HAVE NOT PROVED THEIR ROOT OF TITLE TO THE PARCEL OF LAND IN DISPUTE WHICH WAS GRANTED TO THEIR FATHER PA BENJAMIN O ADUBOR IN 1925.
2. WHETHER THE TRIAL COURT WAS RIGHT TO HAVE CORRECTED ITS JUDGMENT ALREADY DELIVERED WITHOUT BEING MINDFUL OF ITS SCOPE AND LIMITATION.

The Respondent filed his brief on 18th June, 2020 and was settled by O. W. Chibuogwu Esq., of O. W. CHIBUOGWU & ASSOCIATES. The following issues were distilled for determination:
1. WHETHER THE LOWER COURT WAS WRONG IN HOLDING THAT THE APPELLANTS DID NOT PROVE THEIR TITLE TO THE LAND IN DISPUTE. (GROUNDS 1 & 3 OF AMENDED NOTICE OF APPEAL).
2. WHETHER THE LOWER COURT WAS WRONG DISMISSING THE APPELLANT’S CLAIM AGAINST THE RESPONDENTS FOR DAMAGES FOR TRESPASS TO THE LAND IN DISPUTE (GROUND 2 OF AMENDED NOTICE OF APPEAL).
3. WHETHER THE LOWER COURT WAS RIGHT TO HAVE CORRECTED THE ERRORS IN ITS JUDGMENT AFTER SAME WAS DELIVERED.

APPELLANTS SUBMISSIONS
Appellants’ Counsel submitted on issue 1 that the Appellant had proven their root of title to the existence of the parcel of land in dispute and they pleaded to certain facts proving customary ownership of land and tendered Exhibit A – survey plan; Exhibit B – receipt of purchase of rubber seedlings by Pa Benjamin; Exhibit C – Copy of Nigeria Observer Newspaper published 2nd July 1988.

He further submitted that the Exhibits and the facts pleaded have shown an act of possession/ownership of the land in dispute.

Counsel contended that the failure of the Appellant not calling any other family members who have the knowledge of the grant of the parcel of land in dispute to Pa Benjamin O. Adubor is not fatal to the Appellants’ case because the law does not require that all witnesses to a case must be called to testify. The cases of AGBAJE v IBRU SEA FOODS LTD (1972) 5 SC, FRANK v ABDU (2004) 5 FR PAGE 110 AT 117 R 20, BUSARI v OSENI (1992) 4 NWLR (PT 237) 55, BEDDING HOLDINGS LTD v NEC (1992) 8 NWLR (PT 260) AT PAGE 428 and Section 12 of the Evidence Act, 2011 were cited to submit paragraphs 2, 3 and 5 of the Appellants’ pleading were not challenged or controverted and facts not challenged are deemed admitted.

He further contended that the Appellants are seeking for declaration of title to the parcel of land in dispute and they have satisfied the Court on the evidence brought by them and they are in compliance with the decision held in the cases of EKE v OKWARANYIA (2001) 86 LRCN 1403 AT 1425 and DIM v ENEMUO (2009) 172 LRCN 206 AT 233. Counsel argued that from the Appellants’ pleading that their root of title is clearly stated to be an absolute grant of the land in dispute made by Obi Ofulue 1 to their father in 1925.

He further argued that it is the law that one of the ways by which ownership of land can be established is the exercise of right of ownership/possession exhibited by the Appellants. He relied on the cases of IDUNDUN & ORS v OKUMAGBA (1976) 12 SC 31 PAGE 37, ALLI v ALESINLOYE (2000) NWLR (PART 660) 177 AT 201 – 202, NDORO v PIANWII (2003) 5 NWLR (PT. 812) 137 AT 148.

It was the submission of the Appellants that the Appellate Court should properly examine; i. whether there is evidence on which the trial Court acted upon; ii. whether the facts of such evidence was pleaded and; iii. whether the evidence is a legal evidence with respect to admissibility.

Appellants further submitted that the above facts were present in the Appellants’ case, and the lower Court failed to properly evaluate the evidence before it and resulted to a judgment made per curiam.

Counsel urged this Court to assume its duties and properly evaluate the evidence of the Appellants and set aside the lower Court’s judgment in the entirety, the case of SAMBO v SCOA (2007) 4 FLR PT 393 CA 6403 R2 was cited in aid.

On issue 2, it is the submission of the Appellants that the lower Court has no power to alter the rights of parties in the judgment already delivered on 31st July, 2012.

He stated that once a Court has signed its judgment and order is drawn up, the judgment becomes the right of the parties and thereafter the Court becomes powerless and functus officio in respect of the issues resolved. He relied on the cases of OSIGWE v BPE (2007) IJNSC (PT. 29) PAGE 704 AT 710 RATIOS 11 and R.A.S. CO v AKIB (2006) VOL. 139 LRCN PAGES 1801 AT 1805 RATIO 3.

Appellants contended that the Respondent brought a motion for the amendment of the lower Court’s judgment and the pages sought to be corrected affected the rights and interests of the Appellants in the judgment which is for the Court of appeal to resolve.

Counsel further contended that the lower Court in granting the motion to amend its judgment, imported foreign names and customs which were never adduced especially the native law and customs of Ubulu – Uku.

It is the Appellants’ submission that these fundamental errors have occasioned a miscarriage of justice by the lower Court by taking into consideration the customs, facts and names adduced during the trials of the case which the Court neglected.

RESPONDENTS’ SUBMISSIONS
On issue 1, Respondents submitted that the attack on the judgment of the lower Court on the grounds of the Appellant is unwarranted and misconceived.

He further submitted that whether the acts of ownership and possession exercised over the land suffices in proving ownership depends primarily on whether it is the root of title pleaded and relied on by the Appellants in support of their claim. The cases of FASORO v BEYIOKU (1988) 4 SC 151 163, ONWUGBUFOR v OKOYE (1996) 1 SCNJ 1, 24 – 25, BALOGUN v AKANJI (1988) 2 SC (PT 1) 144, OGBUOKWELU v UMEANAFUNKWA (1994) 4 NWLR (PT. 341) 676, 692E and NWOSU v UDEAJA (1990) 1 NWLR (PT. 125) 188, 218 A – F were cited to submit that proof of acts of passion and ownership of land cannot be a substitute for proof of grant of same; acts of ownership and possession become useful after proof of the grant.

Counsel contended that the Appellants failed to call persons who had knowledge of the grant to testify for them neither did they plead the names of the family members who allegedly had knowledge of the grant. He further contended that except when admitted, a grant has to be proved by cogent and compelling evidence that convinces the Court that the grant was actually made. He referred to the cases of ADISA v OYINWOLA & ORS (2000) 6 K.L.R (PART 106) 1915, 1962B – E, ODOFIN v AYOOLA (1984) NSCC 711, 731 and OFUME v NGBEKE (1994) 4 NWLR (PART 341) 746, 756B.

Respondents submitted that the Appellants failed to prove their entitlement to the declaration sought and it is trite that they have to succeed on the strength of their own evidence, not the weakness or perceived weakness of the defence or any admission made by the defence. He relied on the cases of EKE & ORS v OKWARANYIA & ORS (2001) FWLR (PT 51) 1974, 1996H – 19997F, ENEWOH v STATE (1990) 7 SCNJ 1, 10.

Finally, Counsel submitted that the lower Court applied the correct and relevant principles of law to the facts of this case and properly evaluated the evidence in arriving at its findings and conclusions. The cases of OLADIPO v MOBA LGA (2010) 5 NWLR (PART 1186) 117, 150F – H and UKA v IROLO (2002) FWLR (PT 127) 1167, 1198H – 1199B were cited to submit that a decision is preserved when it runs counter to the evidence or when the Court takes into account matters it ought not to have taken into account or shuts its eye to the obvious or where it occasions a miscarriage of justice.

On issue 2, Counsel submitted that lower Court rightly refused the Appellants’ claim for damages for trespass because on the state of the pleadings of the parties, the Appellants did not see the Respondents committing the alleged acts of trespass and that they had in Exhibit J, stated that it was persons who alleged that the original 1st Respondent sold the land to them that did the alleged acts.

Relying on Section 131 of the Evidence Act, 2011, Counsel argued that the Appellants did not lead any evidence to show who those people are or on whose behalf they came to the land to do what they did, neither was there evidence to prove that the 1st Respondent sold the land or any portion of it to these people.

On issue 3, Counsel submitted that by Order 24 Rule 7 of the High Court of Delta State (Civil Procedure) Rules, 2009 gives the lower Court power to correct, at any time clerical mistakes in its judgments or orders or errors arising therein from any accidental slip or omission. The cases of CORNELIUS LTD v EZENWA (1996) 37 LRCN 618, 646, UNIVERSITY PRESS LTD v I.K. MARTINS LTD (2000) FWLR (PART 5) 722, NASCO MANAGEMENT SERVICE LTD v AMAKU TRANSPORT LTD (2002) FWLR (PART 135) 652, 670 and SHANU v AFRIBANK (2003) FWLR (PT 136) 823, 851H were cited to submit that every Court has inherent jurisdiction under the slip rule to correct clerical mistakes in its judgments.

In addition, the Respondent submitted that the errors did not relate to any fundamental part of the judgment of the lower Court as they occurred in respect of an issue which the Court resolved obiter, therefore the errors could not have occasioned a miscarriage of justice to the Appellants.

APPELLANTS’ REPLY
In reply to the Respondents’ arguments in their issue 1, Appellants submitted that the acts of possessions and ownership proved by the Appellants are in addition to the grant of the land and not in lieu thereof as the law does not restrict proof of title to land to only one mode, the case of FASORO v BEYIOKU was cited in aid of submission.

In response to the Respondents’ contention and reliance on the case of ENEWOH v STATE to equate the onus and standard of proof in a civil case with that in a criminal case, Appellants argued that it is misconceived and a wrong statement of the law. Section 133, 134 and 135 of the Evidence Act, 2011. See ORIANZI v A.G RIVERS STATE (2017) 271 LRCN 150 AT PAGES 205 – 206 PARAS ZJJ – AF were cited in aid of argument.

Appellants also countered the Respondents’ submission that the Appellants failed to link the Respondents with the acts of trespass complained of is misconceived in law because the Appellants through their witnesses clearly established the link between the Respondents and the perpetrators of the acts of trespass as evident on the record of appeal, therefore the Appellants’ claim for damages for trespass ought to succeed.

The Appellants in contention to the Respondents’ submissions on Order 24 Rule 7 of the High Court of Delta State (Civil Procedure) Rules, 2009 as well as the Slip Rule submitted that the alterations made by the trial Court went beyond clerical mistakes and or errors arising from accidental slips or omission. In conclusion, the Appellants urged the Court to grant the reliefs sought by the Appellants.

RESOLUTION
The issues of the parties are similar save for how they were couched respectively, I find the Appellants’ succinct and straightforward, therefore I will be adopting it in the determination of this appeal.

ISSUE 1
This issue relates to proof of title to land. It is a settled principle of law that there are five ways of proving ownership or title to land, to wit:
I. By traditional evidence;
II. By production of documents of title duly authenticated and executed;
III. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;
IV. By acts of long possession and enjoyment;
V. By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.
See ARIJE v ARIJE & ORS (2018) LPELR – 44193 (SC), IDUNDUN v OKUMAGBA (1976) 9 – 10 SC 227 AT 246, NKADO v OBIANO (1997) 5 SCNJ 33 AT 47, OWHONDA v EKPECHI (2003) 9 – 11 SCNI AT 6.

A party seeking a declaration must satisfy the Court, by the evidence adduced by him, that he is entitled to a declaration sought, see the case of DIM v ENEMUO (2009) 172 LRCN 206 AT 233 F – P. The onus is therefore on the Appellants to prove their root of title. See YUSUF v ADEGOKE 2008 157 LRCN 172 AT 217 JJ – 218 A – P.

The Appellants sought to prove ownership to the land in dispute by averring in paragraphs 2, 5, 6 & 9 of the Further Amended Joint Statement of Claim that:
2. The plaintiffs aver that Pa Benjamin O. Adubor was a native of Ubulu – Uku and that he hailed from Obi ogene linage who reigned as King of Ubulu uku from 1824 to 1835. The plaintiffs say further that their father was born at Ubulu – Uku and serve the Palace meritoriously of which the Obi of Ubulu – Uku Obi Ofulue took him to a land located along the present Umunede/Ogwashi – Uku road and made an outright grant in perpetuity to him in 1925 to the knowledge of family members.
5. The plaintiff contends that Obi Ofulue I was an ardent agriculturist who planted economic trees such as palm, rubber, etc and also led the community to plant and establish palm plantations which later metamorphosed into Oil Palm Company (OPC) in Ubulu – Uku and the subsequent Palm oil Mil. Obi Ofulue I encouraged the community members to plant economic trees and own plantations. It was in this process that Obi Ofulue I made an outright grant absolutely to Pa Benjamin O. Adubor in 1925. Amongst the 1st set of community members who took the challenge to plant and own plantations at the time were:
i. HRH Obi Ofulue I
ii. Hezekiah Anibali of Akwu Quarters
iii. Chief Benjamin Nwosu from Isho Quarters
iv. Pa Benjamins O. Adubor from Idumugbo Quarters
v. Ofunne from Onicha Quarters
vi. Eric Onwuyalu from Ogbe – ego Quarters
vii. Samuel Amaja from Akpama Quarters
viii. Moses Omeife from Isho Quarters
ix. Origbe Uba from Abuedo Quarters
x. Okeleke Okoh from Idumu – Osume Quarters
6. The plaintiffs aver that Pa Benjamin O. Adubir purchased some of the tuber seedlings at Ewohinme, Olo – Ogwashi – Uku when a nursery was later established thereat and planted same on the land in dispute which Obi Ofulue I gave to him in 1925. He nurtured the rubber seedlings, tapped same and was in complete dominion of the land for a long time. A time came when rubber was no longer in vogue, and he felled some and planted palms, oranges and other economic crops, the palm seedlings of which he brought from Ewohinmi in the present Edo State. The then Obi had a nursery by the bank of Iyi – Agor stream at Ubulu – Uku. Pa Benjamin O. Adubor’s plantations is some distance to the bank of Iyi – Agor stream at Ubulu – Uku. Pa Benjamin O. Adubor’s plantations is some distance to the bank of Iyi – Agor river to the boundary of the present Aluminium factory along the now Umunede/Ogwashi – Uku road in Ubulu Uku which lies on the right side facing Umunede direction from Ubulu – Uku. Some of the documents evidencing purchase of the rubber seedlings shall be relied on at the trial.
9. The plaintiffs aver that from 1925 when the outright grant was made to Pa Benjamin by HRH Obi Ofulue I till 1988 when the former died, the Palace never challenged his title, and he was in complete dominion of the land with the plaintiffs.

The cumulative effect of paragraphs 2 and 9 of the further amended statement of claim is that the appellant relied on an outright grant as his root title from Obi Ofulue II.

See also paragraphs 12 – 26 of the Further Amended Joint Statement of claim at pages 90 – 92 of the record. The Appellants also tendered Exhibits A – Survey Plan of the land in dispute; B – Receipt of purchase of rubber seedlings by Pa. Benjamin O. Adubor; Exhibit C – Certified True Copy of Nigeria Observer Newspaper published 2nd day of July, 1988 which carried an advert of the land in dispute owned by Pa Benjamin O. Adubor.

Having stated from the reproduced pleadings above, that the Appellants depended on the absolute grant by Obi Ofulue I the appellant also relied on acts of ownership and possession in proof of their title to the land in dispute.

The Respondent put up a stoutly defence refuting the alleged grant, in defence to the Appellants’ averments, traversed in their Amended Joint Statement of Defence thus:
1.….the claimants claim that their father, PA, Benjamin O. Adubor, was a native of Ubuluku because his parternal grandmother, Mushai, kept was kept as an idegbe by Obi Ogene as she was his first daughter is false. ..
a) There is no custom in ubuluku that the first daughter of an obi of ubuluku must not be married but will stay in her fathers house to bear children for him.
i) The claimants father is neither a native of ubuluku nor a member of Obi Ogene’s family . His father hailed from Igbanke in present day Edo state.
3. In further answer to paragraphs 2, 5, 9 and other paragraphs of the statement of claim wherein it is averred or suggested that Obi Ofulue 1 made an outright and absolute grant of the land in dispute to the claimants’ father in 1925, the defendants state that:
a. Obi Ofulue I never made an absolute grant of the land in dispute to the claimants’ father in 1925.
b. The land in dispute and all the land on both sides of the Umunede – ogwashi – Uku road in the vicinity of the land in dispute form part of the Agwachime Road farmland in Ubulu – Uku which is darmed predominantly by members of Enugwu – Iyi and Idumugbo quarters of Ubulu – Uku.
c. Agwachime is the name of a steam situate on a part of the farmland. Obi Ofulue 1 was educated literate and could not have made an outright grant of the land in dispute to the claimants’ father without reducing same into writing and/or informing and involving his chiefs in the process of making the grant.
d. Though Obi Ofulue 1 was an ardent agriculturist and encouraged people to engage in plantation agriculture he did not make an outright grant of any of the lands used for the plantations to anybody.
e. Even the vast parcel of land on which Obi Ofulue 1 had his own plantation in Ubulu – Uku has been virtually built – up by members of Ubulu – Uku community from different quarters to whom they were allocated by Obi Ofulue II and the 1st defendant for the purpose of building their houses. The land is called “new site” now.
f. Not being mechanized farmer, the claimants’ father could not have, in one fell swoop in 1925, been granted all the vast land the plaintiffs are claiming in this suit in order to start a plantation, nobody except a mechanized farmer, starts a plantation. Nobody, except a mechanized farmer, starts a plantation on such a large scale; the plantation is always started on a small scale gradually it is expanded with more land cleared and more crops planted. Obi Ofulue I ascended the throne in 1925.
g. The claimants’ father like all other members, both indgienes and people like the plaintiffs, of Ubulu – Uku community, got the land on which they have their plantations without a grant by the Obi by planting economic trees there on it or farming on it exclusively over the years and subsequently planting economic trees thereon. In Ubulu – Uku, every member of the community can farm on any part of Agwachime Road farmland and other farmlands in Ubulu – Uku as they are communally owned and planted whatever crops he likes but this does not make him the owner of the land. Such a user of the land has possession of the land enjoys usufructuary rights over it but not ownership as against Ubulu – Uku community which remains the owner in Ubulu – Uku just started their plantations on parts of the farmlands used by their quarters in Ubulu – Uku.
h. People’s farmlands and plantations were once on the lands where the secondary schools, police station, and many other public institutions are now located in Ubulu – Uku and none of the people claimed absolute ownership of the land when the Obi, in his wisdom, decided that the lands be put to their present uses.
i. Land was plentiful in Ubulu – Uku in 1925 and the quest for individual ownership of lands for farming was virtually non–existent then. The land in dispute was a very thick forest with mighty trees as at 1947.
4. In further answer to paragraphs 6, 7, 8 and other paragraphs of the statement of claim wherein the claimants outlined the acts of possession they and their father exercised over the land in dispute, the defendants state that:
a) The acts of possession exercised over the land in dispute were not inconsistent with the ownership right of Ubulu – Uku community over it. At no time did the claimants and their father before them have a dispute over ownership of the land with the community or the obi who is its custodian. Being the owner of the crops on the land, the claimants and their father were within their rights to have warded off trespassers therefrom.
b) Obi Ofulue II allocated a portion of the land in dispute to Hon. Justice Sybil Nwaka in 2005. The land allocated to Justice Nwaka, an Idisere of Ubulu – Uku, measures 200 feet x 20 feet. The claimants did not challenge Obi Ofulue II when he allocated the land to Justice Nwaka.
c) The claimants have only brought this action for the ownership of the land because they feel the 1st defendant would know the history of the land because of his age and newness on the throne.

From the above, underlined paragraphs, the defence of the Respondents is that the Appellant’s father and therefore family are not from Ubulu-uku, and have no links with the royal family or birthed from ‘’Idegbe’. That ’there was no absolute grant made in favour of the Appellants’ father and acts of possession in Ubulu – Uku community did not translate to ownership rights over the said land.

The lines are drawn and therefore the main issue to be settled is whether the Appellants had proven the absolute grant from Obi Ofulue 1 in 1925?

Appellants pleaded in paragraphs 2 & 11 of their pleadings that an absolute grant was made to their predecessor to the knowledge of family members.
The position of the law is as put by the apex Court that where a party of relies and pleads a grant as his root of title, he is under a duty to prove such a grant to the satisfaction of the Court, other evidence of acts of possession only strengthens the grant. See AJIBULU V MAJOR GEN D.O. AJAYI 2013 LPELR -21860 (SC). Position of the law is well settled, that where a party relies and pleads a grant as his root of title, he is under a duty to prove such a grant to the satisfaction of the Court.
See SUBERU GIWA & ANOR V MURAINA AKINLABI & ORS 2012) LPELR – 20426 (CA) RELYING ON OBASI & ORS V OTI& ANOR (1967) NWLR 74 at 75 Supreme Court held that ‘’In our experience an outright grant of land to live on is no uncommon, an outright grant of land for cultivation is unusual but not unheard of but an outright grant of land which is not required either for living or for cultivation is so exceptional that it would only be proved by the clearest possible evidence and should be presumed. AGULU V DANJUMA KELEDI & ORS (2021) LPELR-54216 (CA) SALAJA V SALAJA (2013) LPELR – 21967 (CA), ODOFIN V AYOOLA (1984)11SC 72, ADISA V OYINWOLA (2000) 10 NWLR (PT 674) 116.
Applying the above principle to this appeal against the backdrop of evidence adduced and pleadings the appellant did not prove the grant, her witnesses merely proved possession and acts thereof, it could not firstly and most importantly prove that the Pa Adubor was an indigene of Ubulu ukwu, nor that he was on offspring from the Obi’s first daughter neither could they prove the custom of Idegbe which they claim to benefit from. Pw1, PW2. PW3 did not conclusively differentiate the custom and pw2 said he knew MUSHAI but she died before he was born this queried the reliability of the evidence. No convincing traditional evidence of the grant was offered no witnesses as to how it was done, it was bereft of proof. Unlike the defendants whose witnesses defended the custom and confronted the appellants with the origin of their which suggests that they were not indigens of Ubuluku to be entitled to such a grant if any.
On the whole, the pieces of evidence do not suffice in law to prove the alleged grant.
’This Court also in the case of ALHAJA ANIMOTU SAGWE v MR. OLOMITUTU OLAKUNORI (2013) LPELR – 22888 (CA) held per OWOADE, JCA thus:
The learned trial judge was thus right when he held at page 95 of the records that: The defendant relies in this case on grant of title by the Osere Alapeko as her root of title to the land in dispute. It is the law that where a party relies on acquisition of title by grant, he is under a duty to prove the grant to the satisfaction of the trial Court. Other evidence of acts of possession after the grant will merely go to strengthen the grant. But where proof of the grant is inconclusive, the bottom is out of the Plaintiff’s case. When his root ceases to stand, the stem and branches will fall with the root. In other words, where the radical title pleaded is not proved, it is not permissible to support a non–existent root with acts of possession. It is not permissible to substitute a root of title that has failed with acts of possession which should have derived from that root. (UNDERLINING MINE).
The above case settles the Appellants’ contention that the acts of possession and ownership fortifies the Appellants’ title to the land in dispute.

Also, in relying on the proof of acts of possession and ownership, the key word is “positive acts.” See the case of EZEANYA DURU & ORS v PETER ONWUMELU & ANOR (2001) 18 NWLR PART 746 P. 672 per UWAIFO, JSC, it was held on what amounts to sufficient acts of possession in proof of title to land thus:
‘’Now, by relying on acts of possession in proof of title to the land in question, the plaintiffs as a community inevitably put in issue the totality of the numerous acts of possession and ownership they claim to have been enjoyed by them, the positive nature of those acts and the long period over which the said acts have spanned so that the circumstance as a whole will be seen to have come within the principle long laid down in Ekpo v Ita (1932) 11 N. L. R. 68. Simply put in relation to this case where, as already said, the plaintiffs base their right to a declaration of title to the land on the fact of long possession, the principle is that they must prove acts of ownership and possession of the land in dispute over a sufficient length of time, numerous and positive enough to warrant the inference that they are exclusive owners. In my view, it will not do if merely there are numerous act, since these might qualify, on the part of an intrusive party, as acts of trespass. There is the requirement that the acts ought to extend over a sufficient or appreciable period of time and must be positive. To be positive, the acts ought to be such that can be verified upon strong evidence, such as old structures and settlements, well–beaten roads or paths, economic crops or trees tending visibly to be long–lived, old farms and hut, community shrines which have long been in existence, and to which the plaintiffs as a community can satisfactorily lay claim etc.”
See MAGAJI v KUYANBANA (2013) LPELR – 20785 (CA).

I agree with the lower Court on the defence of the Respondent in relation to the alleged grant, where he held thus:
‘’The case put forward by the defendants on the alleged grant did not fare better. Their reasons for contending that such a grant was not made to Pa Benjamin Adubor in 1925 are contained in paragraph 3 (C) & (F) of their amended joint statement of defence to wit; that having regard to the fact that Obi Ofulue was educated and literate, he could not have made such a grant without reducing same into writing, that not being a mechanized farmer the claimants’ father could not have been granted such expanse of land in one fell swoop. These are speculative and do not qualify as evidence which a Court could act. Apart from that, lack of documentation in a customary transaction has not been known to invalidate the transaction.
Be that as it may, lack of evidence on the part of the defendants on this issue does not help the claimants’ case, having regard to the fact that the claimants have the duty to discharge the onus of proof of their root of title before the defendants can properly defend the claim. This onus they failed to discharge.’’
See pages 48 of the Supplementary record.

On the issue of damages for trespass, it is trite that the fact that a claim for declaration fails does not mean that the claim in trespass would also fail. Trespass is rooted in possession and not on title or ownership of the land.
From the pleadings before the Court, the fact that the Appellants have been and were in possession of the land in dispute for years is not in dispute; however, the Appellants failed to prove absolute grant by the Obi Ofulue.
In ELISAHA KWEWUM v BAKO EYI (2015) LPELR – 25633 (CA) the Court held:
It bears emphasis that for a plaintiff to institute to commence action on trespass, he must show that he is in exclusive possession, exclusive in the sense that he does not share his right of possession with any other person. A plaintiff needs not show ownership, proof of actual possession can sustain an action in trespass. The slightness possession in the plaintiff enables him to maintain an action for trespass if the defendant cannot show a better title.”

The appellant relied on certificate of statutory occupancy as strengthening title, it is trite that a grant of C OF O does not strengthen the root of an existing customary title unless such customary owners interest is revoked. See KOLO V LAWAN (2011) AFLLWLR (PT 597) AT 737.

Usually given to indigenes to farm at the behest of the Obi/palace and it is not an outright grant therefore can be recalled for and at the request of the palace, which is what occurred here, in this circumstance can the Appellants claim for damages for trespass? The Apex Court held that in MRS T. C. CHUKWUMA v MR BABAWALE IFELOYE (2008) LPELR – 862 (SC).
… Actual possession is against the whole world except the true owner.
See MADAM SHITTU v ALHAJI EIGBEYEMI (1996) 7 SCNJ 43 AT 49-50.
It is not in contention, in fact, it is in evidence that the 1st Respondent succeeded his father as Obi Ofulue III therefore if his father during his life time gave out a portion to the said “Nwaka” then it confirms that the land was not a grant but for farming purposes and this grant by the Obi was not challenged by the Appellants during the reign of Obi II nor were the Appellants challenged by anybody. At page 135 of record, the 1st respondent testified thus:
“…I do not sell peoples land, I give deserving citizens. That is our tradition. My grandfather cannot make an outright grant to claimant’s father. The community gave land for the police station. Ezemu grammar school was also a plantation acquired by the community for the school. It is true St. Anthony Grammar School was a plantation acquired by the community for the school. Same applied to the Eke Market.
…People were farming there so the community had to consult them before the acquisition.”
Therefore, Obi Ofulue II gave out community land as custodian to deserving citizens to build house farm to anything they wish. It is not contested that “JUSTICE NAWKA” was given a portion by the Obi Ofulue II in 2005, the writ of summons issued by the Appellants was dated 15th day of June, 2009, and there was no challenge by the Appellants till Obi Ofulue III ascended. See Pages 1 – 2 of record.
I am satisfied on the unchallenged evidence of pattern of allocation of land to citizens from any of the plantations which were not challenged.
The throne of Obi-ship is continuous and therefore management of the land has been passed to Obi Ofulue III and he can on behalf of himself and community also recall the land or portions thereof. The query is ‘can an action for trespass lie against him? In MRS T. C. CHUKWUMA v MR BABAWALE IFELOYE (2008) LEPLR – 8629 (SC), OGUAGU JSC:
“…But it does only favour a plaintiff, who has possession or at the suit of a person having the immediate right to possession. See the case of OJINI V OGO OLUWA MOTORS NIG LTD (1998) 1-2 SC 1, SCNJ, 20. Actual possession is against the whole world except the true owner. See Madam Shittu v Alhaji Eigbeyemi (1996) 7 SCNJ 43 AT 49-50…”
On this ground, I ask again ‘’can this claim for trespass lie against the owner, who has the right to do as he pleases? No! On this note, I am comfortable that this claim is misplaced, having failed to prove absolute grant and that the 1st Respondent is not a stranger but the true owner of the said portion of land. This claim fails outright.

The contention of the Respondents and the lower Court is that the Appellants failed to prove that the Defendants/Respondents were physically present OR attributed the acts of trespass to the Respondents. The Respondents denied in paragraphs 11 & 13 of their defence, during/at the time the acts of trespass were carried out is misplaced.

I therefore resolve that the Appellants are not entitled to damages for trespass and have not proved that it was the Respondents or their privies who partook in the destruction of their economic crops.

For effective understanding, I make bold to summarize that from the combination of the pleadings and evidence before this Court, it is not disputed that lands in Ubulu – Uku community are community lands (i.e communally owned) and the Obi is the custodian of the said land. For an individual to be said to personally own a land in the community, he must be given as an absolute grant by the Obi in power. This is the case of the Appellants that their ownership stems from the absolute grant given to their predecessor and in addition the acts of possession and ownership. However, as I have earlier settled in this judgment the Appellants failed to prove this. See the case of SHIRA v SHIRA (2020) LPELR – 50322 (CA) where this honourable Court held on the duty of a party where he relies on and pleads a grant as his root of title in an action for declaration per ABIRU, JCA thus:
“Where a claimant claims title by grant, as in the instant case, the Court has to be sure of the nature of grant before a declaration is granted. In other words, where a party relies on and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the Court.
…A grant of the land is never presumed. It requires the clearest evidence.
…Where a defendant does not counter-claim in an action for ownership of land, also as in the instant case, the onus is on the claimant to first establish a prima facie case before a consideration of the case of the defendant can arise.

…Once the claimant has failed to establish his link with the disputed land, he has failed to discharge the burden of proof placed on him. The law is that there is no burden on the defendant and judgment must be entered for the defendant…”
See also ONI v OLOKUN (1995) 1 NWLR (PT. 370) 189, OKO v OKENWA (2010) 3 NWLR (PT 1181) 406, OYEDEJI v OYEYEMI (2008) 6 NWLR (PT. 1084) 484, DIM v ENEMUO (2009) 10 NWLR (PT. 1149) 353.

It is a principle of law that acts of possession and ownership once valid ownership has not been proven would amount to acts of trespass (unfortunately the owner is the alleged trespasser). This is not the case in this matter, having settled that the members of the community are allowed to farm on the communal lands.
I therefore resolve this issue against the Appellants.

ISSUE 2
Whether the trial Court was right to have corrected its judgment already delivered?

Order 24 Rule 7 of the Delta State High Court (Civil Procedure) Rules 2009 provides that:
A judge may at any time correct clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission upon application without an appeal being filed.
From the above, a judge has the power to correct clerical mistakes, errors arising from accidental slip or omission upon an application as long as, an appeal has not been filed.

In this case, the Respondents filed the application for the correction of clerical errors in the judgment on 18th September, 2012 and the Appellants went on to file their notice of appeal on 28th September, 2012. Therefore, the lower Court rightly corrected the judgment as there was no pending appeal as at the time of the application to do so.

The Appellants had contended that the corrections lead to a miscarriage of justice because the corrections related to fundamental mistakes relating to matters of law.

I shall therefore examine the corrections made by the lower Court. The application was for pages 1, line 2; 3, lines 25 & 26; 5, line 12; 13 and 27; 6, line 26; 7, lines 8, 19 and 29; and 13, line 14 of the judgment, that is, instead of “Judicial Division”, “Judivision” was typed at Page 1 line 2; “Ogwashi – Uku” instead of “Ubulu – Uku” at page 3 lines 25 and 26 and likewise at page 5, lines 12, 13 and 27; “Nwushai” instead of “Mushai” was typed at page 6, line 26; “Nwushai” instead of “Victoria Mgbobi” at page 7, line 8; “D.W.1” instead of “1st defendant” at page 7, line 19; “Ozim” instead of “Ezemu” at page 7 line 29 and “to” instead of “of” at page 13, line 14.

From the totality of the reading of the judgment, some of these errors occurred in the spelling of names and words while others were as a result of name misplacement, especially the use of “Ogwashi – uku” instead of Ubulu – Uku. Also, some of these errors occurred in the summarization of the parties’ case and in a holistic reading of each mistake/error, none of them relate to any fundamental part or aspect of the judgment. These errors occurred in the resolving of issue 1 which bordered on the Appellants’ indigene – ship of Ubulu – Uku and this bears no relevance to the question of the ownership of the land in dispute. On the distinction between a misdirection or error in law and accidental slip or clerical mistake in a judgment, the apex Court per IGUH JSC in ALHAJI TAOFEEK ALAO v AFRICAN CONTINENTAL BANK LTD (2000) LPELR – 408 (SC) 60 PARA B – C, held thus:
“A misdirection or error in law which is apparent on the face of a judgment must be distinguished from an accidental slip or clerical mistake in a judgment. Whereas the former is appealable and cannot be remedied under the slip rule the latter may, in appropriate cases, be corrected under this rule.”
See CHIEF NOFIU SURAKATU v DR NOAH OWODUNNI ADEKUNLE (2019) LPELR – 46412 (CA), IBE v PETER ONUORA (1996) LPELR – 1385 (SC), BERLIET NIGERIA LTD v ALHAJI MUSTAPHA KACHALLA (1995) LPELR -775 (SC).

I therefore hold that these corrections had no adverse effect to the Appellants or occasioned a miscarriage of justice.

I resolve this issue against the Appellants.

Overall, the appeal lacks merits and accordingly fails.

The judgment of the Honourable Justice T. O. Diai of the Delta State High Court sitting at Ogwashi – uku division delivered on 31st July, 2012 wherein judgment was entered in favour of the Respondent and further amended on the 26th February, 2013 is hereby affirmed in part.

The claim for damages for trespass and the destruction of their economic crops fails.
Parties should bear their costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: have read in draft before now, the lead judgment just delivered by His Lordship, Abimbola Osarugue Obaseki-Adejumo, JCA dismissing the instant appeal though affirming in part the decision of the trial Court, I concur. The Appellants have claimed a declaration of title to the Lis of the suit by the assertion of an outright grant to their father by the progenitor of the Respondent herein. It was denied. The burden of proof of any facts sought to be relied upon to found a judgment is upon he that so asserts. See S.135 EVIDENCE ACT. In this matter, there was, unfortunately no proof.

To the contrary, the defendants/Respondents were able to show that there was no outright grant of land by Obi Ofulue II as alleged, but an allotment of land for individual use of farming with a reversionary title still vested in the traditional community.

it is, also necessary to observe that it looks strange to me that Innocuous clerical errors such as the spelling of names and misplacements of words, as occurred in the judgment would have their rectification resisted, as the claims and Defences and evidence are dear on the names and the substance. The operative or material parts of the judgment was not in any way altered by the corrections made by the learned trial Judge.

The “Slip Rule”, is a rule of equity and convenience and must not be jettisoned, particularly where miscarriage of Justice has not been shown to be likely to occur. That the “functus officio” theorem is also not without exception is trite. It is not cast on an iron plate. The “slip Rule” is a good devise to avoid perpetuating delays and inconveniences that many ensue on the path of enjoying the intended status of their legal status as adjudged devoid of un-intended and innocent interpolations therein of strange ‘inserts’.

l accordingly adopt the consequential reliefs and orders made in the lead judgment.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the judgment of my learned brother, OBASEKI-ADEJUMO, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal is devoid of merit.

It is established that in a claim for declaration of title, the burden of proof lies on the plaintiff who generally must rely on the of strength his case and not on the weakness of the defendant’s Case. See Kodilinye v. Odu (1935) 2 WACA 335 and Orianzi v. Attorney-General of Rivers State (2017) 6 NWLR (Pt. 1561) 224.

The claim of the appellant to the land in dispute was based on an alleged grant of the land by the Obi of Ubulu-Uku, Obi Ofulue. I, to their father, Pa Benjamin O. Adubor, in 1925. Where a plaintiff relies on grant to claim title to land in dispute, the burden is on him to establish such grant by cogent and acceptable evidence. See Odofin v, Ayoola (1984) 11 SC 72, 105. The appellant, as claimant, failed to lead cogent evidence of the grant of the land as alleged by them. Having acknowledged that original title was/is in the Obi of Uku and having failed to prove the grant pleaded, long possession by the father of the appellant cannot found a claim of title against the 1st respondent on whom title to the land has devolved. See Eresia-Eke v. Orikoho (2010) 8 NWLR (Pt. 1197) 421, 448.

On account of the foregoing and the more comprehensive reasons get out in the lead judgment of my learned brother, I find that the appeal lacks merit. I dismiss the same and affirm the decision of the trial Court.

Appearances:

A.S. Laleye. For Appellant(s)

O. W. Otubugwu. For Respondent(s)