JAGUNDINA & ANOR v. OKEDAIRO
(2022)LCN/16928(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Thursday, March 24, 2022
CA/IB/123/2015
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
1. EBUN JAGUNDINA 2. OKANLAWON JAGUNDINA (For Themselves and On Behalf of The Jagundina Family of Idalawe Quarters, Ado-Odo, Ogun State) APPELANT(S)
And
OLUSEGUN OKEDAIRO, ESQ. (For Himself and On Behalf of The Okedairo Family of Idalawe Quarters, Ado-Odo, Ogun State) RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL
It is elementary law that there are established principles that govern formulation of issues for determination in an appeal. At the core is that issues so distilled must flow from the grounds of Appeal. An issue formulated for determination that does not relate to or arise from any of the grounds of Appeal is not competent and should be disregarded. See OYEGUN VS. NZERIBE (2010) 16 NWLR (PT. 1220)568; KALU VS. ODILI (1992) 6 SCNJ 76 AND OJE VS. BABALOLA (1991) 5 SC 128.
A Court is without the vires to consider for determination, an issue that does not relate to or flow from a ground of Appeal. As a matter of fact, issues for determination reduce the Grounds of Appeal from which they are distilled into compact formulations. Thus, a single issue may be formulated from several grounds of Appeal.
There need not be a separate issue formulated from each ground of Appeal. See LABIYI VS. ANRETIOLA (1992) LPELR – 1730 SC per Karibi Whyte.
Over the years, certain basic principles have crystallized to guide the Appellate Courts in considering the competence of issues distilled by parties for determination in an Appeal. These principles include inter alia the following:
(1) An Issue for determination may be distilled from one or more grounds of Appeal.
(2) An Issue for determination not distilled from any ground of Appeal is incompetent.
(3) A ground of Appeal from which no issue is distilled is deemed abandoned.
See ROBA INVESTMENT LTD. VS. AREWA METAL CONTAINERS LTD. (2010) LPELR – 4900; PETER VS. OKOYE (2002) FWLR (PT. 110) 1864; LAMBERT VS. NIGERIAN NAVY (2006) 7 NWLR (PT. 980)54; BORISHADE VS. NBN LTD. (2007) 1 NWLR (PT. 1015)217; ONIAH VS. ONYIA (1989) 1 NWLR (PT. 99)566 AND AJA VS. OKORO (1991) 7 NWLR (PT. 203)260.
I have gone through the two issues formulated for determination of this Appeal on behalf of the Respondent and married them with the grounds of Appeal and I find and hold they relate to the grounds of Appeal. They emanate from the grounds of Appeal. All the Respondent did was to reduce the grounds of Appeal into compact formulations.
In HOMUS STEEL LTD. & ANOR. VS. DIAMOND BANK (2019) LPELR – 47250 CA, this Court per UMAR JCA at Page 21 Paragraphs A – B held thus:-
“The Appellants have formulated one issue out of the lengthy grounds of Appeal contained in their Notice of Appeal, I bear in mind that there is no principle of law or Rule of Court prohibiting a party from formulating just one issue out of numerous grounds of Appeal. The law only prohibits the proliferation of issues.” PER OJO, J.C.A.
THE DUTY OF A PLAINTIFF IN A CLAIM FOR DECLARATION OF TITLE TO LAND
The law is now settled upon an unbroken thread of judicial authorities that in a claim for declaration of title to land, the first and foremost duty on the Plaintiff is to describe the land with a reasonable degree of certainty and accuracy. In MINISTRY OF LANDS & HOUSING, BAUCHI STATE & ANOR VS. TIRWUN (2017) LPELR – 43314, this Court had this to say:
“It is an age long principle that any person claiming an interest in land must prove the exact location of the land and the precise identity to which his claim relates. This is the foremost and fundamental duty on a Claimant in a land dispute – Epi vs. Aigbedion (1972) 10 SC 53; Akeredolu vs. Akinremi (1989) 3 NWLR (Part 108) 164; Dabup vs. Kolo (1993) 9 NWLR (Part 317) 254; Ohenhen vs. Uhumuavbi (1995) 6 NWLR (401) 303; Ilona vs. Idakwo (2003) 11 NWLR (Part 830) 53; Okochi vs. Animkwoi (2003) 11 NWLR (Pt. 851) 1. In other words, the first duty of a Claimant in a claim for declaration of title to land is to show clearly the area of land to which his claim relates as no Court will grant a declaration to an unidentified area. A declaration of title can only be granted in respect of a piece of land with definite, precise and accurate boundaries – Onuwaje vs. Ogbeide (1991) 3 NWLR (Part 178) 147; Akere vs. Adesanya (1993) 4 NWLR (Part 288) 484; Imah vs. Okogbe (1993) 9 NWLR (Part 316) 159; Ogunsina vs. Ogunleye (1994) 5 NWLR (Part 346) 625; Adesanya vs. Aderonmu (2000) 9 NWLR (Part 672) 370; Odofin vs. Oni (2001) 3 NWLR (Part 701. 488.” PER OJO, J.C.A.
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Ogun State High Court in the Agbara Judicial Division in SUIT NO: HCA/15/11 BETWEEN OLUSEGUN OKEDAIRO ESQ. (For himself and on behalf of Okedairo Family of Idalawe Qtrs, Ado-Odo, Ogun State – CLAIMANTS AND 1. EBUN JAGUNDINA (2) OKANLAWON JAGUNDINA (for themselves and on behalf of the Jagundina Family of Idalawe Qtrs, Ado-Odo/Ota, Ogun State delivered on the 21st day of October, 2014.
In that judgment, the lower Court found against the Appellants (then 1st and 2nd Defendants) on all issues submitted for determination by the Respondent (then Claimant) and entered judgment in his favour. The Appellants who are dissatisfied with the judgment filed the instant appeal.
By his Amended Writ of Summons and the third Amended Statement of Claim, the Respondent claimed against the Appellants as follows:
“1. A Declaration that the Claimant and his family are the persons entitled to the Statutory Right of Occupancy in respect of all that piece of land situate, lying and being at Idalawe, Ado-Odo in Ado-Odo Ota Local Government Area of Ogun State, more particularly shown and edged green in Plan No. OG/704/2013/016 dated 18/11/2013 and drawn by Surveyor Owolabi O. S. (Registered Surveyor) on part of which the Defendants and their family trespassed and now in dispute.
2. An Order that the Defendants and their family forfeit their customary tenancy in respect of the area marked green on the plan described above, on ground of misbehavior which includes the following:
a) Challenge of the Claimant’s family (Overlords) title by persistently laying claim to a larger area than that granted to their grandfather in Idalawe, Ado-Odo as evident in the judgment delivered in Suit No. HCT/64/92 between Adisa Olaleye Vs. Emmanuel Abiodun Okedairo & Others which area is marked blue in the aforementioned plan drawn by Surveyor Owolabi O.S.
b) Challenge of the Claimant’s family (Overlords) title by laying rival title to the area marked red on the plan described above as exemplified in their attempt to change the Claimant’s family original naming of the land, “Idalawe” to the name “Jagundina lane”.
c) Breach of the terms of the tenor of the grant to the Defendant’s family.
3. Possession of the area marked green on the above plan i.e. the area granted to the grandfather of the Defendants which passed on to them from their grandfather.
4. An Order of Perpetual Injunction restraining the Defendants, their agents, servants, privies, cohorts and whosoever from further trespassing, constructing any structure of any type, or otherwise entering into the land marked green in the aforementioned plan drawn by Surveyor Owolabi O.S.
The Appellants filed a Statement of Defence and Counterclaim wherein they claimed the following reliefs:
1. A Declaration that they are the ones entitled to the parcel of land in dispute at Jagundina Lane (Idalawe Compound) Ado-Odo, more particularly delineated in Survey Plan No. OG/1717/2014/050 of 6th February, 2014 drawn by Surveyor Ogundiran Tayo in Ado-Odo Local Government, Ogun State.
2. An Order of Forfeiture against the Claimant for challenging their overlordship over the land in dispute.
3. An Order of Injunction restraining the Claimant, his agents, servants, privies or howsoever called from interfering with the activities of the Counter-Claimants over the land in dispute.
The case of the Respondent is that the disputed land with a total area of 520.124 Square Metres is situated between the land of Ashaka and the land of Berode, opposite the land of the Respondent’s family, bounded at the back by an untarred road leading from Idoniporogun-Owo Road to Idoelero, at Idalawe, Ado-Odo.
He claimed his family is the customary landlord of the land described above together with its surroundings which is more particularly shown and verged green and marked red in Plan No. OG/704/2013/016 drawn by Surveyor Owolabi O. S. Registered Surveyor. That the land was founded by one Akinlotan, his (Respondent’s) progenitor who brought one Medeyin to Idalawe.
The Appellants on their part, presented a different set of facts and set up rival title against the Respondent. Their case is that Alawe Fabiyi, their progenitor, founded the land in dispute; and that the said Alawe Fabiyi brought the Respondent’s grandfather Akinde to Idalawe. They claim the Respondent and his family are their customary tenants and that their (Respondent) family land, including the portion covered by the judgment in HCT/64/92 reverted to them in line with the customs and traditions of Idalawe.
At the end of the day, the lower Court in its judgment found as follows:
“In conclusion, I hold that the Claimant’s case succeeds, and that the Claimant is entitled to the reliefs sought and I therefore make the following declaration and orders:
1) It is hereby declared that the Claimant and his family are the persons entitled to the Statutory Right of Occupancy in respect of all the piece of land situate, lying and being at Idalawe Ado-Odo in Ado-Odo/Ota Local Government Area of Ogun State more particularly shown and edged green in Plan No. OG/704/2013/016 dated 18/11/2013 drawn by Surveyor Owolabi O.S. Registered Surveyor.
2) An Order of forfeiture is hereby granted against the Defendants in respect of the customary tenancy on the area marked green on the plan above mentioned.
3) The Claimants are entitled to the possession of the area marked green on the above mentioned Survey Plan.
4) An Order of perpetual injunction is granted restraining the Defendants, their agents, servants, privies, from further trespassing, constructing any structure or otherwise entering into the land marked green in the aforementioned Survey Plan belonging to the Claimant.
Cost of N20,000.00 is awarded in favour of the Claimant.”
The Counter-claim of the Appellants was dismissed.
The Notice of Appeal containing eight grounds of appeal was filed by the Appellant on 9/12/2014.
See pages 902-909 of Vol. 2 of the Record of Appeal.
The Record of Appeal which are in two volumes marked Vol. I and Vol. II respectively were transmitted to this Court on the 27th of May, 2015 and deemed as properly compiled and transmitted on 12th January, 2022.
In accordance with the Rules of this Court, parties filed their respective Briefs of Argument as follows:
1) Appellants Brief of Argument settled by Chief Oluseyi Oyebolu filed on 3/07/15 was deemed properly filed on 12/1/2022.
2) Respondent Brief of Argument settled by O. A. Pius Esq. filed on 5/8/15 was deemed as properly filed on 12/1/2022.
3) Appellants Reply Brief settled by Mr. Emmanuel Olu-Alade filed on 16/9/15 was deemed as properly filed on 12/1/2022.
On 12/1/2022 when this appeal was heard, learned counsel representing both parties adopted and relied on their respective Briefs of Argument. While the Appellants Counsel argued in favour of allowing the Appeal, Counsel representing the Respondent submitted in favour of its dismissal.
Learned Counsel to the Appellant formulated the following Seven Issues for the determination of this Appeal:
(i) Whether the Learned trial Judge was right in coming to the decision that the traditional evidence led by both parties are equally plausible and that there is a difficulty in resolving which of the two is correct. (Ground 1 of the Notice of Appeal).
(ii) Whether the Learned trial Judge was right in refusing to dismiss the claims of the Claimant, having found that the traditional evidence led by the Claimant is of same weight with the traditional evidence led by the Defendants, who are in fact, in possession of the land in dispute from time immemorial. (Ground 2 of the Notice of Appeal).
(iii) Whether it is compulsory for a Claimant in a land matter to tender the Survey Plan of the land in dispute before succeeding in his claim, when the identity of the land in dispute is well known to both parties as clearly shown from documentary and oral evidence adduced by both parties in this case. (Ground 3 of the Notice of Appeal).
(iv) Whether the Learned trial Judge failed to consider or adequately consider the credible evidence led by the Defendants to prove their superior and better acts of ownership and long possession over that of the Claimant. (Grounds 4 and 5 of the Notice of Appeal).
(v) Whether the Learned trial Judge was right in relying heavily or at all on the judgment delivered in Suit No. HCT/64/92 Between Adisa Olaleye and Emmanuel Okedairo & Others (Exhibit 23) in coming to his decision in the case, when the parties or the land in dispute in Exhibit 23 and this instant case are not the same. (Ground 6 of the Notice of Appeal.
(vi) Whether the claims of the Claimant are not statute barred having regard to the fact that the period between the time the Claimant alleged that the Defendants started to challenge his title (as overlord) to the land in dispute, and the time the Claimant commenced in Court, this instant case is well over the maximum period of 12 years laid down in the Ogun State Limitation Law. (Ground 7 of the Notice of Appeal).
(vii) Whether the Learned trial Judge complied with the principles laid down in the celebrated case of Idundun Vs. Okumagba (1976) 9 – 10 S.C. 227 which makes it mandatory for the trial Judge to put the credible and legal evidence of each of the two parties on each side of an imaginary scale to see whose credible evidence weighs more than the other and mandatorily give judgment in favour of the party whose evidence is heavier. (Ground 8 of the Notice of Appeal).
The Respondent’s Counsel formulated the following two (2) issues for determination:
(i) Whether in the entire circumstances of this case as borne out by the Record of Appeal, judgment can successfully be entered for the Appellants as per their Counter-claim. (Distilled from Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal.
(ii) Whether the Respondent discharged the onus of proof placed on him in proving his case at the trial. (Distilled from Grounds 6, 7 and 8 of the Notice of Appeal).
I have taken note of the Appellants’ submissions in their Reply Brief of Argument and will put them into consideration in the overall determination of this Appeal.
PRELIMINARY ISSUE
Appellants Counsel submitted at pages 2 – 8 of his Reply Brief that the Respondent improperly framed his issues for determination and also improperly distilled the issues framed from the Grounds of Appeal. To support his submission, he relied on the following cases:
NWAOGWUGWU VS. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (2007) 6 NWLR (PT. 1035)237; CHIEF IMONIKHE & ANOR. VS. ATTORNEY GENERAL OF BENDEL STATE & ORS. (1992) 6 NWLR (PT. 248)396 AT PG. 407; OKPALA & ANOR. VS. IBEME & ORS. (1989) 2 NWLR (PT. 102)208 AT 220; MADUMERE VS. OKAFOR (1996) 4 NWLR (PT. 445)637 AT 644 AND ODUSOTE VS. ODUSOTE (2013) ALL FWLR (PT. 668)867 AT 870 RATIOS 1 & 2.
It is elementary law that there are established principles that govern formulation of issues for determination in an appeal. At the core is that issues so distilled must flow from the grounds of Appeal. An issue formulated for determination that does not relate to or arise from any of the grounds of Appeal is not competent and should be disregarded. See OYEGUN VS. NZERIBE (2010) 16 NWLR (PT. 1220)568; KALU VS. ODILI (1992) 6 SCNJ 76 AND OJE VS. BABALOLA (1991) 5 SC 128.
A Court is without the vires to consider for determination, an issue that does not relate to or flow from a ground of Appeal. As a matter of fact, issues for determination reduce the Grounds of Appeal from which they are distilled into compact formulations. Thus, a single issue may be formulated from several grounds of Appeal.
There need not be a separate issue formulated from each ground of Appeal. See LABIYI VS. ANRETIOLA (1992) LPELR – 1730 SC per Karibi Whyte.
Over the years, certain basic principles have crystallized to guide the Appellate Courts in considering the competence of issues distilled by parties for determination in an Appeal. These principles include inter alia the following:
(1) An Issue for determination may be distilled from one or more grounds of Appeal.
(2) An Issue for determination not distilled from any ground of Appeal is incompetent.
(3) A ground of Appeal from which no issue is distilled is deemed abandoned.
See ROBA INVESTMENT LTD. VS. AREWA METAL CONTAINERS LTD. (2010) LPELR – 4900; PETER VS. OKOYE (2002) FWLR (PT. 110) 1864; LAMBERT VS. NIGERIAN NAVY (2006) 7 NWLR (PT. 980)54; BORISHADE VS. NBN LTD. (2007) 1 NWLR (PT. 1015)217; ONIAH VS. ONYIA (1989) 1 NWLR (PT. 99)566 AND AJA VS. OKORO (1991) 7 NWLR (PT. 203)260.
I have gone through the two issues formulated for determination of this Appeal on behalf of the Respondent and married them with the grounds of Appeal and I find and hold they relate to the grounds of Appeal. They emanate from the grounds of Appeal. All the Respondent did was to reduce the grounds of Appeal into compact formulations.
In HOMUS STEEL LTD. & ANOR. VS. DIAMOND BANK (2019) LPELR – 47250 CA, this Court per UMAR JCA at Page 21 Paragraphs A – B held thus:-
“The Appellants have formulated one issue out of the lengthy grounds of Appeal contained in their Notice of Appeal, I bear in mind that there is no principle of law or Rule of Court prohibiting a party from formulating just one issue out of numerous grounds of Appeal. The law only prohibits the proliferation of issues.”
I find no merit in the preliminary issue raised by the Appellant in their Reply Brief and same is discountenanced by me. On the contrary, I find the seven issues formulated for determination and distilled from the eight grounds of Appeal interwoven and tedious.
Back to the Issue(s) for determination in this Appeal.
I have considered the evidence on record, the Judgment of the lower Court and the grounds of Appeal and I agree with the Respondent’s Counsel that two issues arise for determination. I shall therefore adopt the two issues formulated by him with slight modifications as the issues for determination in this appeal.
They are:
(i) Whether from the facts and circumstances of this Appeal and as borne out from the Record, the lower Court was right when it dismissed the Counter-claim of the Appellants. (Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal).
(ii) Whether the lower Court was also right when it allowed the Claims of the Respondent. (Grounds 6, 7 and 8 of the Notice of Appeal).
ISSUE 1
Whether from the facts and circumstances of this appeal and as borne out from the Records, the Lower Court was right when it dismissed the Counter-claim of the Appellants. (Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal).
Appellants Counsel’s submission is that the Learned Trial Judge failed to evaluate or adequately evaluate the traditional evidence led by the parties before coming to his decision that the traditional evidence led by both of them are equally plausible and of equal weight. He submitted the word “plausible” in the Oxford Dictionary of English Language means “reasonable, probable, persuasive, believable and having appearance of truth.”
He submitted further that the Trial Judge did not state the reasons for arriving at his decision but rather, rushed to a conclusion when there were enough facts on record that show that the evidence of both parties are contradictory to each other.
On the extent and/or weight of the traditional evidence led by the Respondent to support his claims, he submitted the Respondent failed to substantiate and prove the facts he pleaded by credible and cogent evidence. He submitted that pleadings do not qualify as evidence as they remain pleadings until substantiated by credible and cogent evidence and relied on the cases of NWABUDE VS. UGODU (2011) ALL FWLR (PT. 604)26 AT 29 AND AREGBESOLA VS. OYINLOLA (2011) ALL FWLR (PT. 570)1292 AT 1305 to support his submission.
He submitted further that the Respondent failed woefully to lead sufficient evidence to establish his claim on who founded the disputed land, how the land was founded and, the particulars of the intervening owners through whom he claims. He referred us to Paragraphs 5, 7, 8, 9, 10, 11, 12, 15, 16 and 17 of the Respondent’s 3rd Amended Statement of Claim at pages 691 – 692 of Vol. 2 of the Record as examples of pleaded facts not backed by credible and cogent evidence.
He pointed out that the Respondent failed to establish the identity of the land which he claims, did not tender any dispute plan; and did not plead or lead evidence of how the land claimed was founded.
He further argued that the Respondent did not name the three (3) people that purportedly came along with Akinlotan from Ile-Ife to Idalawe let alone give the names of the deities that were brought along with them; that the Respondent did not establish his Claim that his ancestors granted some portions of the land to some tenants including one Medeyin who was the progenitor of the Appellants and did not call anyone who witnessed the ceremony to give evidence. He submitted the Respondent did not lead credible evidence to support his pleading that Medeyin was an Egun man and that the Jagundinas are Egun people.
Counsel emphasized that the Respondent did not lead credible evidence to support his pleading in paragraph 20 of his 3rd Amended Statement of Claim that one Peter Okedairo (Respondent’s grandfather) was the one who added to the land granted to the Appellants family by giving a portion of the land between Berode’s House and Jagundina to Salami Jagundina, who is the father of the 2nd Appellant to build a house located on the land in dispute.
He stressed that the Appellants on the other hand led conclusive, cogent and credible evidence to support their claim of ownership of the land and which evidence was never controverted by the Respondent. Particulars of the evidence Counsel submitted was established, proved and corroborated by the Appellants and their witnesses include:
I. That the land in dispute was founded by Alawe Fabiyi to which the Appellants pleaded the commemorative brochure of Alamuwa Day Celebration of 1996;
II. That Alawe is an integral part of their cultural heritage in Ado-odo history, customs, convention and tradition;
III. That all the structures on the Respondent’s family land located near the land in dispute have gone into ruins and that this fact was admitted by the Respondent during the hearing of the case;
IV. That the Appellants family had produced previous Alawes and that the past Alawe from their family (Alawe Odu, otherwise known as Akilojoh) was among the war captains who fought on the side of the Aworis during the Egba-Ado war that ended in 1853;
V. That the Appellants family are the descendants of Zacehaeus Ibikunle Jagundina, who reigned as Alawe and indeed performed the traditional rights of Oba Adeteru Iso, the Olofin of Ado-Odo who reigned in the year 1910;
VI. That the case between the Respondent’s family and Adisa Olaleye was not with the knowledge or consent of their family; and,
VII. That the Appellants’ progenitors are the early settlers on Idalawe Quarters otherwise called Idalawe Compound from time immemorial. As a result, they cannot be correctly called customary tenants of anybody in their own traditional settlements.
Learned Counsel submitted and urged us to hold that in the light of the above mentioned overwhelming evidence adduced by the Appellants, the Learned Trial Judge erred in law and on the facts when he came to the conclusion that the traditional evidence led by both parties were plausible. It is also his submission that the Learned Trial Judge came to his conclusion without putting the admissible and credible evidence led by each party on an imaginary scale before deciding which one is heavier. That the decision of the Learned Trial Judge violates that of the Supreme Court in ONOWHOSA VS. ODIUZOU (1999) 1 NWLR (PT. 586)173 AT 183 AND LAWAL VS. DAWODU (1972) 8 – 9 S.C. 83 AT 114 – 117.
He cited KOPEK CONSTRUCTION LIMITED VS. JOHNSON EKISOLA (2010) 3 NWLR (PT. 1182) PAGE 618 AT 649; USONG VS. NYANG (2010) 2 NWLR (PART 1177) PAGE 83 AT 107 AND FABUNMI VS. AGBE (1985) 1 NWLR (PART 2)299 to support his argument that in a claim for Declaration of Title to land, the onus of proof lies on the Plaintiff who must succeed on the strength of his own case through only cogent and credible evidence, and that where evidence shows that the Defendant is in possession of the disputed land, the onus is on the Plaintiff to show he has a better title.
He submitted that having found that the evidence of traditional history led by the Respondent was not conclusive, the Lower Court ought to have dismissed his case.
He urged us to note that contrary to the decision of the lower Court that the Appellants relied on Exhibit 31 (Survey Plan No. OG/1717/2011/025 of 14/04/2011 drawn by Surveyor Ogundiran Tayo) in proof of their Counterclaim, what the Appellants relied on was a Composite Survey Plan No. OG/1717/2014/050/ of 06/02/2014 drawn by Surveyor Ogundiran Tayo pleaded in Paragraph 128 of the Amended Counter-claim dated 18/03/2014 (See page 720 of the Record) and tendered as Exhibit 32. That the Lower Court erred in law and on the facts when it held that the Appellants failed to prove the identity of the land they counter-claimed for the reason that Exhibit 31 was not pleaded by them. He urged us to note that Exhibit 32 clearly shows the area verged green, which is the land area the Appellants claim to be the land in dispute.
He stressed that rather than pursue the task of looking for evidence of recent acts of ownership, the Lower Court looked for evidence of ownership of the adjoining landed properties which he wrongly found to be in favour of the Respondent. He argued that the Lower Court wrongly recognized the Judgment in Suit No. HCT/64/92 which according to him is not connected with the disputed land. He submitted that the Lower Court did not take into consideration several acts of ownership by the Appellants over the land which include that the Appellants had buried their dead relatives on the land; let portions of the land to 3rd parties; and that the major road passing through the land is called “Jagundina Lane” in support and recognition of the fact that the Appellants family were the first settlers on the land.
He urged us to resolve this issue in favour of the Appellants.
Learned Counsel to the Respondent submitted otherwise. He relied on the cases of ECHENIM OFUME VS. NGBEKE (1994) 4 NWLR (Pt. 341) PAGE 746 RATIOS 1 & 2 (COURT OF APPEAL, BENIN) to support his submission that in a claim for declaration of title to land, the first and foremost duty on the Plaintiff is to describe the land with reasonable degree of certainty and accuracy such that the Court will be assured and a Surveyor would have no problem identifying its co-ordinate monuments. He also cited MOTANYA VS. ELINWA (1994) 7 NWLR (PART 356) PAGE 252 to support his submission that identity of a land will be in issue only if the Defendant in his pleadings, makes it so by specifically disputing either the area or size covered in the location shown in the Plaintiff’s Plan or described in the Statement of Claim.
Counsel alluded to instances where the Appellants made the identity of the land in dispute an issue. He pointed out that the Appellants Exhibit 31 (Survey Plan dated 14/04/2011 showing property of Jagundina Alawe Family Land at Jagundina Lane, Idalawe Compound, Ado-Odo/Ota Local Government Area, Ogun State) was admitted in evidence in error because it was not pleaded in their pleadings and the Lower Court was right to so hold.
He pointed out further that Exhibit 32 (Composite Plan dated 06/02/2014 showing the disputed land situate, lying and being at Jagundina Lane, Idalawe Compound, Ado-Odo/Ota Local Government Area, Ogun State) is a bogus Survey Plan because the extent, dimension or measurement of the land verged “black” and “blue” stated therein are conspicuously missing. He emphasized the Plan has no size or measurement and does not delimit the land with sufficient particularity in compliance with the decision in NNADOZIE VS. OMESU (1996) 5 NWLR (PART 446) PAGE 126 PARAS D – E.
Regarding the Appellants traditional evidence, learned counsel to the Respondent drew our attention to the point that the Appellants made Alawe Fabiyi their progenitor; that the said Alawe Fabiyi founded Idalawe compound in Ado-Odo; and that during his cross-examination, DW10 (now 2nd Appellant) admitted that it was Olofin (King) Oreje who allocated the land in Idalawe to Alawe Fabiyi. He noted that there are material contradictions in the case of the Appellants and cited DARAMOLA VS. GOV. OGUN STATE (2004) FWLR (PART 192)112 RATIO 10; LEBILE VS. REG. TRUSTEES OF CHERUBIM AND SERAPHIM CHURCH (2003) 13 NSCQR 19 RATIO 8 on the effect of material contradictions in a party’s case. He also noted that the traditional evidence of the Appellants dilates between “settlement” and “grant”.
Counsel cited ADEBAYO VS. IGHODALO (1996) 5 NWLR (PT. 446) 126 to support his argument that where a Plaintiff fails to prove his title to the disputed land, it is wrong for him to turn around to rely on acts of possession which acts only smack of the radical title pleaded. That in such a case, it is unnecessary to consider the Plaintiff’s act of possession as such acts by him on the land rather than being viewed as acts of possession, becomes act of trespass. That this is more so where the Defendant shows a better title.
In the end, he submitted that the Exhibits the Appellants relied on to prove long possession over the disputed land and/or Idalawe land are riddled with textual contradictions and cited instances at paragraphs 4.15 (1) (a) – (c), (2), (3) (a) – (c) and (4) on pages 6 – 8 of his brief.
He urged us to resolve this issue against the Appellants.
The case before the Lower Court included a Counter-claim from the Appellants. Both the Appellants and Respondent claimed title to the disputed land and sought declaratory reliefs. Both parties therefore had a duty to describe the land claimed with such a degree of certainty and accuracy that a Surveyor would have no problem identifying its co-ordinate monuments.
The law is now settled upon an unbroken thread of judicial authorities that in a claim for declaration of title to land, the first and foremost duty on the Plaintiff is to describe the land with a reasonable degree of certainty and accuracy. In MINISTRY OF LANDS & HOUSING, BAUCHI STATE & ANOR VS. TIRWUN (2017) LPELR – 43314, this Court had this to say:
“It is an age long principle that any person claiming an interest in land must prove the exact location of the land and the precise identity to which his claim relates. This is the foremost and fundamental duty on a Claimant in a land dispute – Epi vs. Aigbedion (1972) 10 SC 53; Akeredolu vs. Akinremi (1989) 3 NWLR (Part 108) 164; Dabup vs. Kolo (1993) 9 NWLR (Part 317) 254; Ohenhen vs. Uhumuavbi (1995) 6 NWLR (401) 303; Ilona vs. Idakwo (2003) 11 NWLR (Part 830) 53; Okochi vs. Animkwoi (2003) 11 NWLR (Pt. 851) 1. In other words, the first duty of a Claimant in a claim for declaration of title to land is to show clearly the area of land to which his claim relates as no Court will grant a declaration to an unidentified area. A declaration of title can only be granted in respect of a piece of land with definite, precise and accurate boundaries – Onuwaje vs. Ogbeide (1991) 3 NWLR (Part 178) 147; Akere vs. Adesanya (1993) 4 NWLR (Part 288) 484; Imah vs. Okogbe (1993) 9 NWLR (Part 316) 159; Ogunsina vs. Ogunleye (1994) 5 NWLR (Part 346) 625; Adesanya vs. Aderonmu (2000) 9 NWLR (Part 672) 370; Odofin vs. Oni (2001) 3 NWLR (Part 701. 488.”
I have perused the Record and my finding is that the Appellants (in their Exhibits 31 and 32 at pages 422 and 762 of the Record respectively) made the identity of the land an issue by contrasting these Exhibits with the Respondent’s Exhibits 24 (Survey Plan dated 14/04/2011 showing property of Okedairo Family Land at Idoniporogun/Owo Road, Idalawe Ado-Odo, Ado-Odo/Ota Local Government Area, Ogun State) and Exhibit 26. (Composite Plan showing the land in dispute).
Also, in paragraph 5 of the Appellants amended pleading at page 703 of the Record as well as paragraph 7 of the 2nd Appellant’s (DW10) Statement on Oath dated 18/03/2014 at page 726 of the Record, the Appellants stated as follows:
“…It is denied that the land in dispute is owned by the claimant as same within the large expanse of land belonging to Defendants…”
I agree with the Respondent’s Counsel that the Appellants Exhibit 31 was admitted in evidence in error, same having not been pleaded by them. I also agree in toto with the reasoning of the Lower Court at page 898 of the Record that evidence led on the Appellants Exhibit 31 goes to no issue. As regards Exhibit 32, I note that the Appellants pleaded it at paragraphs 5 and 128 of their amended Statement of Defence and Counterclaim.
I have taken pains to peruse Exhibit 32 and I agree that it is indeed a bogus Survey Plan. While on the one hand it indicates that some portions of the land are verged “black” and “blue”, I note with particularity that the dimension or measurement of the land verged “black” or “blue” are not stated therein. It does not indicate the size or measurement of the land with sufficient particulars. The Appellants definitely failed in their duty to prove identity of the land on which they claim a declaration of title and I so hold.
Both parties led evidence of traditional history of the disputed land. The Appellants in their traditional evidence (at page 704 of the Record) made Alawe Fabiyi their (Appellants) progenitor. Their evidence is also that Alawe Fabiyi founded Idalawe compound in Ado-Odo. Regrettably, under his cross-examination at page 887 of the record, the 2nd Appellant (who testified as DW10) said that it was Olofin (King) Oreje who allocated the land in Idalawe to Alawe Fabiyi. This piece of evidence elicited from the 2nd Appellant during his cross-examination contradicts his pleadings that Alawe Fabiyi founded Idalawe compound in Ado-Odo and uproots the foundation of the Appellants traditional evidence of “original settlement;” and reduces it to the status of a “grant.” The Lower Court was again right when it decided so. The Appellants failed in their duty to prove title to the land claimed and I so hold.
I have taken cognizance of the fact that Appellants Exhibit 47 (Ado-Odo/Ota Local Government Revenue Collector’s Receipt contained on page 631 of the Record) is one of the documents relied on by the Appellants to prove long possession of the land. It is dated 24/02/2011 and was issued to Mr. Salami Jagundina. Exhibit 40 (Federal Republic of Nigeria National Population Commission Certificate of Death) puts the date of death of Mr. Salami Jagundina as 01/04/1991. Exhibit 47 dated 24/02/2011 was thus issued to a man who died 29 years earlier.
Learned counsel to the Appellant submitted in paragraph 11.04 of the Appellants Brief that by a letter dated 01/04/2011 from Ado-Odo/Ota Local Government Area to the Jagundina Alawe family, the Council confirmed that the main street passing through the disputed land is “Jagundina Lane”. The letter is Exhibits 27 and 42. I have seen the letter and contrary to the submission of Counsel, the letter is just a confirmation that Idalawe compound was changed to “Jagundina Lane.”
I note with particularity that Exhibits 1 and 2 which are pictures of the signpost bearing “Jagundina Lane” is fixed on the Appellant’s house and not on any road. (See page 319 of the Record). Furthermore, Exhibit 26 which is the Composite Plan shows that the Appellants’ house is surrounded by the Respondent’s family land. Appellants’ counsel contention is that the lower Court failed to evaluate or adequately evaluate the traditional evidence led by both parties before coming to the conclusion that the traditional evidence led by both of them are equally plausible and of equal weight.
It is trite that the law does not prescribe any particular procedure or style to be adopted by a trial Court in the discharge of its primary duty of assessment or evaluation of the evidence adduced before it. In other words, the manner, way, method or style or procedure for assessment or evaluation of evidence by a trial Court is not rigid or fixed but entirely at its discretion which like all other judicial discretion is subject to being exercised judicially or judiciously. See SOLOLA VS. THE STATE (2005) ALL FWLR (PT. 269) 1715 AT 1771 (2005) 5SC (1) 135 AND IGAGO VS. STATE (1999) 14 NWLR (PT. 637) 1.
Acting judicially simply imports the consideration of the interests of both sides in a case and weighing them in line with established principles of law in order to arrive at a just decision.
To act judiciously also means to proceed from or show sound judgment marked by discretion, wisdom and good sense. See ERONINI VS. IHEUKO (1989) 2 WLR (PT. 101) 40 AT 60-61; ACB VS. NNAMANI (1991) 4 NWLR (PT. 786) 486 AND ENAKHIMION VS. EDO TRANSPORT SERVICES (2006) ALL FWLR (PT. 334) 7882.
Once a trial Court is shown on the record to have evaluated the evidence in line with established principles of law and justice by placing it on the imaginary scale of justice no matter the style, manner or procedure used, the evaluation would be proper and this Court would have no justification to interfere with such a method merely because it would have used a different manner in the evaluation or assessment of the evidence.
I further wish to reiterate the settled position of the law that it is not the function of this Court to retry a case on the notes of evidence and make a practice of routinely setting aside the decision of a trial Court or Tribunal merely because a particular procedure which was otherwise proper and not another was used or adopted in the evaluation of the evidence. See ONIFADE VS. OLAYIWOLA (1990) 7 NWLR (PT. 161) 130; KALU VS. ODILI (1992) 5 NWLR (PT. 240) 130; LAYINKA VS. MAKINDE (2002) 10 NWLR (PT. 775) 358 AT 375.
I have critically examined the record and I have no hesitation in coming to the conclusion that the learned trial Judge properly evaluated the evidence on record and also came to a reasonable and fair conclusion on facts presented by the parties. His conclusion at the end of his evaluation is rooted in the evidence on record. I agree with him that the Appellants did not lead cogent and credible evidence to support their claim of ownership of the disputed land and I so hold.
This issue is resolved against the Appellants.
ISSUE 2
Whether the lower Court was right when it allowed the Respondent’s claims.
(Grounds 6, 7 and 8 of the Notice of Appeal).
Learned counsel to the Appellants contended under this issue that the lower Court was wrong when it relied heavily on the judgment delivered in Suit No: HCT/64/92 BETWEEN ADISA OLALEYE AND EMMANUEL OKEDAIRO & OTHERS (Exhibit 23) in arriving at its decision. He submitted that the parties and the land in dispute in Exhibit 23 are distinct and different from those in this appeal. He argued further that the Plaintiff in Exhibit 23, Mr. Adisa Olaleye instituted the action in his private capacity and that the Jagundina family which was not a party in SUIT NO: HCT/64 cannot be bound by the decision.
He emphasized that Exhibit 32 i.e. the Survey Plan No. OG/1717/2014/050 of 16th February, 2014 which was pleaded and subsequently tendered by the Appellants, reveals that the land in dispute in Suit No. HCT/64/92 is not adjacent or connected to that in this appeal as they are located several tens of meters away from each other; that the admission of Exhibit 23 (Judgment delivered on 30/07/2014 in Suit No. HCA/64/92) is wrongful and violates Sections 102 (a) (iii) and 104 of the Evidence Act, 2011.
He submitted further that the Respondent’s claim is statute barred having regard to the fact that the period between the time the Respondent alleged that the Appellants started to challenge their title as overlord and the time he eventually commenced his suit at the lower Court, is well over the maximum period of 12 years provided for under Section 6(2) of the Limitation Law of Ogun State, 2006. He commended to us paragraph 26 (iv) of the 3rd Amended Statement of Claim filed on 15/01/2014, paragraph 120 of the Further Amended Statement of Defence and Counter-claim contained at page 719 of the record, letter of Confirmation of the Allocation of Jagundina Lane from Ado-Odo/Ota Local Government Area Office Exhibit 42 and 2nd Appellant (DW10) evidence during his cross-examination at page 887 of the Record.
He pointed out that the judgment of the lower Court is against the weight of evidence adduced during trial and that when the evidence adduced by the Appellants is balanced against that of the Respondent, the judgment given in favour of the Respondent is against the totality of the evidence on record. In other words, the judgment of the lower Court is not supported by the evidence adduced by the Respondent and no evidence to support the findings of the lower Court in his favour. He commended to us the cases of MOGAJI VS. ODOFIN (1978) 4 SC 91 AT PAGES 93-95 AND ANACHUNA ANYAOKE VS. DR. FELIX ADI (1986) 3 NWLR (PART. 31) 731 AT 742 to support his submission.
He urged us to resolve this issue in favour of the Appellants.
Learned Counsel to the Respondent argued to the contrary. He pointed out that the Respondent sufficiently described the land on which he sought the declaration of title. He relied on IDUNDUN VS. OKUMAGBA (1976) 9-10 SC 227 AND EGBO VS. AGBARA (1997) 1 NWLR (PT. 481) 293 AT PAGE 317-318 RATIO 12 to support his submission that a party claiming title to land is not bound to plead and prove more than one root of title to succeed. If he relies on more than one root of title, he does so ex abundanti cautela to make assurance doubly sure.
He submitted the Respondent proved his title to the land by two methods i.e., by traditional evidence when it established by credible evidence who founded the land, how the founder founded it, the particulars of intervening owners through whom the Respondent claims and by proof of connected or adjacent land. He also drew our attention to the point that the Appellants admitted that part of their own land falls within the boundary of the Respondent’s land (Ashaka and Berode otherwise known as Aberode).
He submitted that Exhibit 23 (Judgment in Suit No. HCT/64/92 Between Adisa Olaleye vs. Emmanuel Okedairo & Others) was rightly received and admitted in evidence; that the Plaintiff in Suit No. HCT/64/92 was a privy or representative in interest to the Appellants family; that PW2 and PW6 in Exhibit 23 were members of the Appellants family; and, that the parcel of land in Exhibit 23 now forms a portion of the Respondent’s family land in Idalawe compound, Ado-Odo which land is contiguous to the land in dispute. He submitted further that the trial Court was right when he admitted Exhibit 23 in evidence and urged us to so hold.
I note that Learned Counsel to the Respondent objected to Ground 7 of the Notice of Appeal for being incompetent. He submitted the Respondent’s case at the lower Court was not statute barred; that the Appellants pleading and evidence only demonstrates a futile attempt to change the name Idalawe compound to Jagundina lane, which justified the Respondent’s claim; that the Appellants Exhibit 27 or 42 was written during the pendency of the suit at the lower Court hence it is of no probative value as it is invalidated by Section 83(3) of the Evidence Act 2011; and that in the absence of any credible government document showing approval for street naming and approval of fees paid in that regard, Exhibits 43 and 43A remains invalid and Idalawe compound never got its name changed to any other name.
He urged us to resolve this issue against the Appellants.
As I earlier observed, both the Appellants and Respondent have a duty to properly describe the land claimed by them since they both seek declaratory reliefs and ownership. To this end, I note that paragraphs 4, 5, 6 and 27(1) of the Respondent’s amended pleading contained at pages 691 and 694 of the Record together with his (PW7) Written Statement on Oath at page 697 of the Record sufficiently describe the land on which he seeks the declaration of title. This is not all. He pleaded and tendered Exhibits 24 and 26. (Survey and Composite Plan) Exhibit 26 is indeed a Composite Survey Plan which delimits the area verged with sufficient particularity i.e. 502.124 square Meter (see page 691 and 694 of the Record).
The Respondent called:
I. PW2 (a boundary woman) to clarify one side of the land in dispute;
II. PW3, PW5 and PW6 (boundary men) with respect to the other side of the land in dispute;
III. PW7 who tendered Exhibits 25A and 25K (See page 535 of the Record with respect to the front of the land in dispute; and,
IV. PW7, who also tendered Exhibit 25B (See page 536 of the Record) to the effect that there is an untarred road at the back of the land in dispute.
Regarding proof by traditional evidence, I note that in paragraphs 7 to 9 and 11 of the Third Amended Statement of Claim (See pages 691 to 692 of the Record), as well as paragraphs 7 to 9 and 11 of CW7’s Statement on Oath adopted as his evidence at the trial, the Respondent gave evidence that the land in dispute and the surrounding land was founded by Akinlotan (his progenitor who migrated from Ile-Ife). He reaffirmed this piece of evidence under his cross-examination at page 867 of the record. Also, in paragraphs 8, 9, 10 and 11 of the Third Amended Statement of Claim as well as paragraphs 8, 9, 10 and 11 of his Statement on Oath he testified that Idalawe was a new quarter of Orisa Obatala whose founder was Akinlotan the Chief Priest of Alawe (his progenitor). (See page 501 of the Record).
I have perused the Record and my view is that the Respondent gave detailed particulars of intervening owners through whom his family claimed. See Paragraphs 11, 12 and 15 of his pleading at page 692 of the Record and Paragraph 11, 12 and 15 of his evidence in his Statement on Oath. Regarding proof of connected or adjacent land, I note the following oral and documentary evidence:
I. The Respondent’s Exhibit 26;
II. Evidence of PW1, PW2 (a Descendant of Berode and Respondent’s relative);
III. Evidence of PW3, PW5, PW6 (Descendants of Ashaka and Respondent’s family customary tenants);
IV. Evidence of PW7 (Respondent himself); and
V. Exhibits 23, 25C, 25D and 26 established the land connected or adjacent to the land in dispute.
Having perused the record over and over again, I find and hold that the Respondent was able to show that the Appellants land in Idalawe compound which forms the area in dispute in Exhibit 26, is surrounded and encompassed on the three (3) of the four (4) sides by the lands of the Respondent’s family, and that the remaining one (1) side is an untarred road. I note that the Appellants admitted two (2) of the sides. PW6 tendered five (5) Exhibits i.e. Exhibits 6, 7, 8, 9 and 10 to establish the fact that he is a descendant of Ashaka.
I have critically perused Exhibit 23 (Judgment in Suit No. HCT/64/92 Between Adisa Olaleye vs. Emmanuel Okedairo & Others) and hold that it was rightly received and admitted in evidence. I note with particularity that the Plaintiff in Suit No. HCT/64/92 was a privy or representative-in-interest to the Appellants family and claimed that the Appellants family granted the land (upon which he sued) to his family. I also note that PW2 and PW6 in Exhibit 23 were members of the Appellants family. Their testimony at page 306 of the record.
Interestingly, PW6 in Suit No. HCT/64/92 is the 1st Appellant in this Appeal and was the 1st Defendant at the lower Court. The parcel of land in Exhibit 23 is a portion of the Respondent’s family land in Idalawe compound, Ado-Odo and which land is contiguous to the land in dispute (See page 702 of the Record).
I am unable to agree with Appellants’ Counsel on his submission that the evidence of PW2 and PW6 in Suit No. HCT/64/92, was given without the knowledge or consent of the Appellants family. Moreover, the Appellants did not oppose the tendering and admission of Exhibit 23 in evidence (See page 866 of the Record). Its certification met the requirements of Sections 104, 105 and 146(1) and (2) of the Evidence Act 2011.
The lower Court was right to have admitted it in evidence and was also right to put it into consideration in the determination of the suit.
From the totality of the evidence on record, it is my considered view that the Respondent established by credible evidence his title to the disputed land and the trial Court was right when it granted the reliefs sought by him. This issue is also resolved in favour of the Respondent.
On the Respondent’s preliminary objection against ground 7 of the Notice of Appeal on the ground that it is incompetent for failure to sufficiently plead the Limitation of Action Law, my view is that the Respondent himself failed to seek leave to raise this objection in violation of Order 10 of the Rules of this Honourable Court.
It must be stressed that the Courts have recognized that an objection may be raised in the Respondent’s Brief but before it can be deemed proper, leave to move same must have been sought. The consequence of the Respondent’s failure to seek leave is that the objection is deemed abandoned. See ONOCHIE & ORS VS. ODOGWU & ORS (2006) LPELR-2689 SC; CHIEF NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138)285; SALAMI VS. MOHAMMED (2000) 9 NWLR (PT. 673) 469; TIZA & ANOR VS. BEGHA (2005) 5 SCNJ 168 AT 178 to mention just a few.
In REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS. NAMA (2014) LPELR – 22372 (SC), Kekere-Ekun JSC held:
“I think it is fair to say that the method of raising a preliminary objection, apart from giving the Appellant three clear days’ notice from the date of the hearing, is now firmly settled. The Respondent may file a separate, formal notice of preliminary objection. Alternatively, he may raise the objection in his brief of argument or he may employ both options. The decided authority on the issue is to the effect that there is the need for the Respondent or his counsel to seek the leave of the Court to move the objection before the hearing of the appeal. The effect of failure to move the objection during oral hearing of the appeal is that it is deemed abandoned.”
The instant Respondent’s Preliminary Objection is deemed abandoned for failure to seek leave to move same before the hearing of the Appeal.
Related to the above is the issue of Statute of Limitation raised in Paragraphs 10.00-10.03 at pages 22-23 of the Appellants Brief. I also find and hold that this issue is incompetent having not been raised and decided first at the lower Court and leave of this Honourable Court having not been sought to raise it.
This Court has said it times without number that it is reasonable and within the requirements of fair hearing, for a party who wishes to raise an issue which did not form part of what was considered in the judgment of the lower Court appealed against, to raise it as a fresh issue of law, by filing an application seeking the leave of the Appellate Court to raise and argue it. See CHIEKE VS. NOSIKE (2017) LPELR – 42618 (CA); SALISU & ANOR. VS. MOBOLAJI & ANOR (2013) LPELR – 22019 (SC); OBIAKOR & ANOR. VS. STATE (2002) LPELR – 2168 (SC).
In conclusion, having resolved the two issues in this Appeal against the Appellants, it follows that this Appeal is devoid of merit and should be dismissed. It is accordingly dismissed. I affirm the judgment of the Ogun State High Court, Agbara Judicial Division in SUIT NO. HCA/15/11 BETWEEN: OLUSEGUN OKEDAIRO ESQ. (for himself and on behalf of Okedairo Family of Idalawe Qtrs, Ado-Odo, Ogun State) AND 1. EBUN JAGUNDINA (2) OKANLAWON JAGUNDINA (for themselves and on behalf of the Jagundina Family of Idalawe Qtrs, Ado-Odo/Ota, Ogun State delivered on 21st day of October, 2014.
I award N100,000 costs against the Appellants and in favour of the Respondent.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Folasade Ayodeji Ojo, JCA.
One of the appellants’ complaints is that the action in the trial Court was statute barred. And on this complaint, learned counsel for the appellants submitted as follows:
“In paragraph 26 (iv) of the 3rd Amended Statement of claim filed in Court on 15-01-2014, the claimant gave reasons why he commenced this suit against the Defendants. One of such reasons is that the Defendants and their family affixed a plank bearing “Jagundina Lane” to their house and go about Ado-Odo and environs saying they have changed the name of “Idalawe Quarters” to Jagundina Lane”. In answer to paragraph 26 (iv) of the 3rd Amended Statement of Claim, the Defendants pleaded in paragraph 120 of their Further Amended Statement of defence and Counterclaim on page 719 of the Record that “planks bearing “Jagundina Lane” were fixed to their house by the authority of Egbado Divisional Council in 1957/1958 for the Layout and proper naming of all existing habitable and notable areas of Ado-Odo Town…” The Defendants also pleaded a letter of confirmation of the allocation of Jagundina Lane from Ado-Odo/Ota Local Government Area office. The Defendants gave evidence of these pleaded facts through a letter (Exhibit 42) from Ado- Odo/Ota Local Government confirming the allocation of Jagundina Lane. Also, the 2nd Defendant, when being cross-examined while in the witness box as DW10, confirmed that the allocation of Jagundina Lane and its fixing in Idalawe Quarters happened in 1957-58″.
With due respect, the naming of lanes, streets and roads is not a matter that falls within the competence of the parties to this appeal or any other private persons. The naming of lanes, streets or roads and numbering of houses fall within the traditional and constitutional functions of Local Government Councils by virtue of the provisions of Section 7 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Paragraph 1 (g) of the Fourth Schedule thereto. Therefore, lanes, streets or roads are not necessarily named after the land owners thereof and any dispute relating to the names of lanes, streets of roads should not be equated to a dispute as to ownership of land.
It is for the foregoing reasons and the fuller reasons given by my learned brother that I also dismiss this appeal.
I abide by the orders made in the leading judgment, including the order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I have had a preview of the lead judgment of my Lord, FOLASADE AYODEJI OJO, JCA just delivered. I am in agreement with the lucid reasoning and resonating conclusion that the instant appeal is devoid of merit and that the same should be dismissed. I wish to add few words for the purpose of emphasis and in affirmative support of the said lead judgment.
The Appellants contended that the trial Judge failed to evaluate or adequately evaluate the traditional evidence led by both sides.
In the instant appeal, both parties led evidence of traditional history in respect of the disputed land. The Appellants in their pleadings claimed that their progenitor was Alawe Fabiyi, however, the 2nd Appellant under cross examination stated that it was Olofin (King) Oreje who allocated the land to Alawe Fabiyi. This evidence which was elicited from the 2nd Appellant is inconsistent with the Appellants’ claim of traditional history.
It is now settled that traditional evidence must be consistent and properly link the plaintiff with the traditional history relied upon. Above all, it is not sufficient for a party who relies on traditional history for proof of title to land, as in the instant case, to merely prove that he or his predecessor in title had owned and possessed the land from time immemorial. Such a party is bound to plead such facts as (1) who founded the land; (2) how the land was founded and (3) the particulars of the intervening owner through whom he claims, see the case of OWOADE V. OMITOLA (1988) 2 NWLR (PT.77) 413, AKINLOYE V. EYIYOLA (1968) NMLR 92, OLUJINLE V. ADEAGBO [1988] 2 NWLR (PT. 75) 238, ADEJUMO V. AYANTEGBE (1989) 3 NWLR (PT.110) 417, ANYANWU V. MBARA (1992) 5 NWLR (PT. 242) 386, 399 and ALLI AND ANOR V. ALESINLOYE AND ORS (2000) LPELR – 427 (SC) 27 – 28, E-B.
Also, 2nd Appellant’s evidence uproots the foundation of their claim through traditional evidence of original settlement to the status of a grant. This contradiction is material and it is trite law that for a contradiction to be essential and to affect the decision of a trial Court such contradictions must be material and fundamental. The contradictions must create doubt in the mind of the Court to such a degree that the Court believes it. See the case of AWOPEJO & ORS V. STATE (2001) LPELR-656(SC) and IGABELE V. STATE (2006) LPELR-1441(SC).
Consequent upon the above and the more elaborate reasons advanced in the lead judgment, I also find that the appeal lacks merit and is accordingly dismissed.
Appearances:
Chief Oluseyi Oyebolu, with him, Ayodeji Orire For Appellant(s)
O. A. Pius, Esq. For Respondent(s)
