MICHAEL AIYEOLOA VS RAMOTA YEKINI PEDRO
(2014) LCN/4274(SC)
In the Supreme Court of Nigeria
Friday, May 16, 2014
Case Number: SC 102/2004
RATIO
ATTITUDE OF THE APPELLATE COURTS TO EVALUATION OF EVIDENCE OF A TRIAL COUR
The attitude of the Court of Appeal or the Supreme Court as the case may be, in respect of evaluation of evidence of a trial court is that in deciding whether or not a trial court properly evaluated the evidence, the essential focus should be on whether the trial court made proper findings and reached the correct judgment upon facts before it. It is not the method or approach that necessarily determines this. Thus, so long as a trial court does not arrive at its judgment merely by considering the case of one party before considering the case of the other, its judgment if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case it may have adopted. Ajibulu v Ajayi (2004) 11 NWLR (Pt. 885) 458; Woluchem v Gudi (1981) 5 SC 291. PER MARY UKAEGO PETER-ODILI. JSC, CFR, J.C.A.
CONDITION FOR THE VALIDITY OF SALE OF FAMILY LAND
It is essential to the validity of sale of family land that the head of family must join in the conveyance and the principal members of the family must consent to the transaction. Such a combination of parties to the conveyance of family land by the head of family and the principal members of the family is unimpeachable. Any sale or disposition purporting to transfer family land without these essential customary elements is void abi initio. Fayehun v Fadeju (2000) 6 NWLR (Pt. 661) 390 at 404, 405. PER MARY UKAEGO PETER-ODILI. JSC, CFR, J.C.A.
EFFECT OF A SALE OF FAMILY LAND BY THE HEAD OF FAMILY WITHOUT THE CONCURRENCE OF PRINCIPAL MEMBERS OF THE FAMILY.
A sale of family land by the head of family is only voidable where it is made without the concurrence of principal members of the family. Such a sale is not void ab initio but merely voidable and the family can set aside such a sale if the other members act timeously. Fayehun v Fadoju (2000) 6 NWLR (Pt. 661) 390 SC; Ekpendu v Erika (1959) SCNLR 186); City Property Dev. Ltd v A. G. Lagos State (1976 1 SC 71; Solomon v Mogaji (1982) 11 SC 1; Lukan v Ogunsusi (1972) 5 SC 40; Adedibu v Makanjuola 10 WACA 33. PER MARY UKAEGO PETER-ODILI. JSC, CFR, J.C.A.
DUTY OF A CLAIMANT IN A DECLARATORY ACTION TO SUPPLY COURT WITH EVIDENCE IN SUPPORT OF HIS PLEADINGS
It is no longer a matter for debate on the fact that a court does not make declarations of title either on mere admission in pleadings or in default of defence without hearing appropriate evidence and being satisfied with such evidence. It is for that reason that the party laying claims satisfy the court by evidence and not by an admission in the pleadings of the defendant supporting this entitlement to the declaration sought. The fact is not lost in mind that the court still has a discretion of granting or not granting the declaration, however, the success of such a claimant in action depends entirely on the strength of his own case and not on the chance thing of the weakness of the defence. Okedare v Adebara (1994) 6 NWLR (Pt. 349) 157; Bello v Eweka (1981) 1 SC 101; Motunwase v Sorungbe (1988) 4 NWLR (Pt. 92) 90; Kodilnye v Odu (1935) 2 WACA 336. PER MARY UKAEGO PETER-ODILI. JSC, CFR, J.C.A.
WAYS BY WHICH TITLE TO LAND MAY BE PROVED
I cannot resist going back to reiterate the five recognised ways in proving title when there is a land suit and two contesting parties. These are well stated in the case of Idundun v Okwunagba (1976) 9 -10 SC (Reprint) 140 which is now the locus classicus on the point. These methods or ways are thus:- a. By traditional history or evidence; or b. By documents of title; or c. By various acts of ownership numerous and positive, and extending over a length of time as to warrant the ownership; or d. By acts of long enjoyment and possession of the land; and e. By proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would in addition be the owners of the land in dispute. The practice in declaration of title or a dispute to such declaration is Constance and the law is that a party claiming title to land must show that he acquired his title in any one of the five ways or methods above stated. See Ojoh v Kamaly & Ors (2005) 2 SC (Pt.11) 1 at 24; Ajibulu v Ajayi (2004) 11 NWLR (Pt. 885) 473-474. PER MARY UKAEGO PETER-ODILI. JSC, CFR, J.C.A.
ON WHOM RESTS THE BURDEN OF PROOF IN A CLAIM FOR TITLE TO LAND
It is the duty of a plaintiff claiming title to land to show how he or his predecessor-in-title acquired title in one of the five ways or methods recognised in proving title to land. Ajibulu v Ajayi (2004) 11 NWLR (Pt. 885) 458 at 473 – 474; Ogunleye v Oni (1990) 2 NWLR (Pt. 135) 745; Piaro v Tenalo (1976) 12 SC 31; Ige v Fagbohmu (2001) 10 NWLR (Pt. 721) 468.
WHETHER WHERE A PARTY HAS SATISFIED THE COURT AS TO HIS TITLE TO LAND IN DISPUTE HE STILL NEEDS TO PROVE THE TITLE OF HIS VENDOR
Where a party has satisfied the court as to his title to land in dispute, the court need not inquire into the title of his predecessor-in-title. The party does not need to prove the title of his vendor except where it has become an issue. Ajibulu v Ajayi (2004) 11 NWLR (Pt. 885) 458 at 474; Dosunmu v Joto (1987) 4 NWLR (Pt. 65) 297. PER MARY UKAEGO PETER-ODILI. JSC, CFR, J.C.A.
WHETHER AN APPELLATE COURT CAN RE-OPEN ISSUES OF FACT
On appeal, there are rules of practice and one of the cardinal rules is that an appellate court should not re-open issues of fact unless there is a strong basis for that, such as where the fact supposedly laid to rest is shown to be perverse, illegal or not a proper exercise of judicial discretion. Also a party who was victorious at the lower Court ought not to normally be confronted with a new case on appeal simply because his adversary decided to bring forward his case in trickles or piece by piece and at his fancy. This is because a case on appeal is not new, the foundation is and remains the writ of summons and claim from the court of first instance, while what is on appeal is a mere continuation sheet. See Esangbedo v The State (1989) 3 NSCC 23. PER MARY UKAEGO PETER-ODILI. JSC, CFR, J.C.A.
POSITION OF THE LAW WHEN THE ISSUE IS WHICH OF TWO CLAIMANTS HAS A BETTER RIGHT OF POSSESSION TO AND/OR OCCUPATION OF A PIECE OR PARCEL OF LAND IN DISPUTE,
When the issue as in this case is which of two claimants has a better right of possession to and/or occupation of a piece or parcel of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title thereto. Ajibulu v Ajayi (2004) 11 NWLR (Pt. 885) 458 at 475 per Adekeye JCA (as she then was), Fasoro v Beyioku (1988) 2 NWLR (Pt. 76) 263; Aromire v Awoyemi (1972) 1 All NLR (Pt.1) 10 NWLR (Pt. 721) 468; Olohunde v Adeveju (2000) 10 NWLR (Pt. 676) 562. PER MARY UKAEGO PETER-ODILI. JSC, CFR, J.C.A.
WHAT IS REQUIRED OF A PARTY WHO SEEKS JUDGMENT IN HIS FAVOUR
… a party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleadings and where there is none, then the averments in the pleading are deemed abandoned. The same principle of law goes for whatever defence a defendant seeks to rely on in the process of demolishing the case against him. Arabambi v Advance bevereges Ind. Ltd (2005) 19 NWLR (Pt. 959) 1 at 28; Emegokwue v Okadigbo (1973) NMLR 192; Adimora v Ajufo (1988) 3 NWLR (Pt. 80 1; Olorunfemi v Asho (2000) 2 NWLR (Pt. 642) 143. PER MARY UKAEGO PETER-ODILI. JSC, CFR, J.C.A.
JUSTICES:
MAHMUD MOHAMMED, JUSTICE, SUPREME COURT
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, JUSTICE, SUPREME COURT
JOHN AFOLABI FABIYI, JUSTICE, SUPREME COURT
MARY UKAEGO PETFR-ODILI, JUSTICE, SUPREME COURT
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JUSTICE, SUPREME COURT
APPELLANTS
MICHAEL AIYEOLOA
RESPONDENTS
RAMOTA YEKINI PEDRO
(Delivered By MARY UKAEGO PETER-ODILI. JSC, CFR, J.C.A.) This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on the 19th day of December, 2002 at which the Court below set aside the judgment delivered by the trial High Court per I. A. Sotuminu J (as she then was) on the 23 day of September, 1994. FACTS: The Respondent as Plaintiff at the trial High Court of Lagos commenced an action against the Appellant as Defendant through a writ of summons and statement of claim dated PAGE| 2 the 20th day of February, 1990 wherein she claimed as follows:- (a) A declaration that the Plaintiff is entitled to statutory right of Occupancy in respect of the piece of land and building thereon situate, lying at Igbede Road, Ajagbadi Elem Hause Village in Ojo Local government Area of Lagos State and which is more particularly described and delineated on the Survey Plan filed with the Statement of Claim. (b) Order for possession of the said piece of land and building thereon. (c) Perpetual Injunction restraining the Defendant, his servants or agents and any other persons purporting to claim under or through him from further committing acts or interfering with Plaintiffs right and interest in or over the property in dispute. Reacting to the Statement of claim, the Defendant filed a 20 paragraph Statement of Defence dated the 13th day of March, 1990 where he contended that the Plaintiffs claims are frivolous, vexatious, speculative and constituted an abuse of Court process and that same should be dismissed with cost. At the trial, the Respondent testified for herself and called two witnesses, while the Appellant testified for himself and called one witness. At the conclusion of trial and the final addresses of counsel to the respective parties, the learned trial judge dismissed the case of the plaintiff on the ground that the plaintiff failed to prove the claims. The Plaintiff as Appellant appealed to the Court of Appeal being dissatisfied with the decision of the trial High Court. The Court of Appeal or Court below allowed the appeal and set aside the decision of the Court of trial. The Defendant/Respondent in the Court below has now appealed to this Court on a six ground of appeal which grounds would be recast here with the particulars thus:- GROUNDS OF APPEAL: GROUND 1: The Court of Appeal erred in law and on the facts in allowing the Appeal when from the totality of the evidence on record the Respondent did not prove the identity of the land in dispute. PAGE| 3 PARTICULARS: (a) The evidence adduced in Court by the Respondent and her witnesses in proof of the identity and location of the land in dispute is contradictory, unreliable and is greatly at variance with her pleadings. (b) The Survey Plan tendered by the Respondent was erroneously received and treated by both the Trial Court and Court of Appeal as Exhibit. (c) The Surveyor who is the appropriate person to tender the Respondent’s Survey Plan was not called in evidence by her. (d) The mere tendering of the Survey Plan by the Respondent is not sufficient proof of the identity of the land in dispute. (e) The Respondent did not properly trace the boundaries of the land in dispute. (f) The Respondent did not prove her root of title to ground her case. GROUND 2: The Court of Appeal erred in law and on the facts when it held that the failure of the other joint owners to give evidence in support of the case showed that Aliu Saliu dealt with the land in dispute as his personal property. PARTICULARS: (a) Alhaji Saliu, DW1, was the Accredited or Authorised Representative of Abu Family. (b) Exhibit C, Land Agreement, was signed by DW1, Alhaji Aliu Saliu in favour of the Appellant as the Authorised Representative of his family and other land owners. (c) Exhibit C, was not signed by DW1, Alhaji Saliu in his personal capacity. (d) The evidence adduced by the Appellant in support of his case is stronger and better than the evidence of the Respondent. (e) The status or position of DW1, Alhaji Aliu Saliu as the Authorised/Accredited Representative of other land owners was not challenged in Lower Court. GROUND 3: The Court of Appeal erred in law and on the facts in not holding, from the evidence on record that the Respondent has failed to prove her root of title. PARTICULARS: PAGE| 4 (a) It is clear from the record that the evidence adduced by the Respondent in support of proof of her case is contradictory and insufficient to support the granting of the reliefs sought by her. (b) The Respondent did not properly establish her root of title to the land in dispute. (c) The case put up by the Appellant against the Respondent in the Trial Court is stronger and sufficient to defeat the Respondent’s claim on the preponderance of evidence. (d) There is no evidence in support of the inference drawn by the Court of Appeal that the Respondent has better title. GROUND 4: The Court of Appeal erred in law and on the facts in receiving or treating the Survey Plan tendered by the Respondent as Exhibit and acted on it when it was clear from the record that the person who tendered it was not the maker. PARTICULARS: (a) The Surveyor who is the appropriate person to tender the Respondent’s Survey Plan was not called in evidence by her. (b) The Court of Appeal placed too much reliance and weight on the Respondent’s Survey Plan in its judgment. (c) The Appellant’s Survey Plan was received as IDENTIFICATION. (d) There was no cross examination of the Respondent on the Survey Plan tendered by her. GROUNDS: The Court of Appeal erred in law and on the facts in not holding that the Respondent has not proved her case to the standard required in law and thereby dismiss the appeal. PARTICULARS: (a) There were material contradictions in the evidence of the Respondent and her witnesses. (b) Proper appraisal and evaluation were not given to the evidence adduced by both the Appellant and the Respondent by the Lower Court. (c) The Respondent adduced very weak and unreliable evidence in support of her PAGE| 5 case. (d) The Respondent adduced evidence which is at variance with her pleadings. (e) The Respondent did not properly prove or establish her root of title. (f) The identity of the land in dispute was not satisfactorily proved by the Respondent. (g) The Survey Plan tendered by the respondent was wrongly admitted as Exhibit by the Trial Court. GROUND 6: The Judgment is against the weight of evidence. To have a fuller understanding of the background to this dispute on appeal, I shall recast the pleadings. STATEMENT OF CLAIM: 1. The Plaintiff is a Trader residing at 40 Sopono Street, Lagos. 2. The Defendant resides at 7 Mokoya Street, Ajegunle, Lagos. 3. The property subject matter of this action is situated at IGBEDE ROAD, AJAGBADI in ILEMBA HOUSA VILLAGE of OJO LOCAL GOVERNMENT AREA of Lagos State. 4. Under and by virtue of a purchase receipt dated 3rd January 1978, the Plaintiff became seised of the land subject matter of this action. The purchase receipt will be relied upon at the trial of this action. 5. The Plaintiff caused the land to be surveyed. The survey plan will be relied upon at the trial of this action. 6. Soon after the sale of the plaintiff’s (sic) vendor Alhaji Rafiu Johnson of 13 Kuforiji Street, Orile Iganmu put her in possession and has since remained in effective possession exercising thereon maximum acts of ownership by erecting a building thereon without let or hindrance from any one. 7. The Plaintiff commenced building operations in June 1978 and continued same till February 1989 when she suspended building operations due to financial constrain. 8. In January 1990, the Plaintiff decided to continue building operations on the PAGE| 6 land in dispute. 9. On a visit to the premises, the Plaintiff discovered to her dismay that the building had been completed by unknown persons and let out to tenants. 10. The Plaintiff caused notices to be pasted on the walls of the premises warning the occupiers to desist from the act of trespass. 11. The Plaintiff alerted her vendor about the trespass. 12. The Plaintiff’s vendor made enquiries from the family that sold the land to him about the unknown persons on the land in dispute. 13. The family confirmed selling the land in dispute to the Plaintiff’s vendor and expressed willingness to give evidence on behalf of the plaintiff in this action. The Plaintiff will rely on the evidence of the vendor and the original owners of the land. 14. As a result of the warning notices pasted on the land in dispute by the Plaintiff, the identity of the trespasser became known. His Solicitor wrote a letter confirming the occupation of the land in dispute by the defendant. The Plaintiff be (sic) founded upon on the trial. 15. The Plaintiff avers that between the time she purchased the land in dispute in January 1978 and throughout the time she carried on building operations she exercised maximum acts of ownership without let or hindrance from any person including the defendant. 16. If, which is not admitted, the defendant bought the piece of land from any one, the defendant raised no objection to the building operations being carried on by the plaintiff. The Plaintiff therefore relies on LACHES and ACQUIESENCE. 17. The Plaintiff avers that the defendant is in occupation of the property without her licence or consent. 18. WHEREOF the Plaintiff claims as per the Writ of Summons. For the Defendant was put forward the following paragraphs of his Statement of Defence as follows:- STATEMENT OF DEFENCE: PAGE| 7 SAVE and EXCEPT as are herein expressly admitted the Defendant denies each and every allegation of fact contained in the Plaintiffs Statement of Claim as if each were set out seriatim and specifically traversed. 1) The defendant admits only paragraph 2, and categorically denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Plaintiffs Statement of Claim and put him to the strict proof thereof. 2) The Defendant is not in position to admit or deny paragraph 1 of the Statement of Claim. 3) In answer to paragraph 3 of the Statement of Claim, the Defendant says that the property in dispute is situate at Maxwell Street, Elem Hausa Village, in Ojo Local Government Area of Lagos State of Nigeria. 4) The land in dispute forms a portion of a vast area of land occupied by Abu Family from time immemorial and upon which it had been exercising maximum acts of Ownership without let or hindrance from any quarters. 5) The Defendant says that in May 1976, he negotiated for the lease of the land in dispute from the Head of Abu Family Chief Alhaji Aliu Saliu. 6) The Defendant says that the land in dispute was leased to him for 99 years by the Abu Family of Elem 1976 at an annual rent of One Hundred Naira (N100.00) as evidenced by the Family receipt dated 23rd of May, 1976 issued in favour of the Defendant. The Defendant shall rely on the said receipt at the hearing of this action. 7) The Defendant says that he was put into immediate possession of the land leased to him and has since remained in peaceful possession of the land exercising all maximum acts of Ownership without let or hindrance from any quarters. 8) The Defendant further says that he immediately cleared the trees and weeds on the land leased to him and started reclaiming it being a swampy area. 9) The Defendant further says that he later caused the land to be surveyed in 1977. The Defendant shall rely on the said survey plan at the hearing of this action. 10) The Defendant says that after the land had been reclaimed, he left it for some time and commenced farming on it in 1980 planting various crops like PAGE| 8 Cassavas, Okoro, Tomatoes, etc and Vegetables thereon. 11) In February 1988, the foundation of the house was laid and the Head of Abu Family was invited to offer prayers on that occasion for blessing and long life to the Defendant. 12. That the building operation of the house then followed and in September 1989, the house consisting of twelve rooms was completed and in October 1989, the rooms were given to tenants for residential purposes. 13) The Defendant said that in January 1990, the Plaintiff went to his said house with thugs and wild-looking men and threatened them with ejection by force on the ground that the house they occupy is her property. 14) One of the Tenants named Fidelis came to inform me that a letter was pasted on the building but that he did not know the nature of the letter and the person who pasted it. 15) I went to my house immediately and on arrival, I found a letter dated 24th January 1990 pasted on the wall of the house addressed to the unknown person by the Plaintiffs Solicitor. 16) I quickly took the said letter to my Solicitor with instruction to reply on the same and warn the plaintiff against further acts of molestation and harassment of my Tenants and also to commence appropriate Court action if she feels convinced that she has a good case against me. The Defendant will rely on the two letters at the hearing of this case. (17) The Defendant says that he has made the necessary enquiry from his lessors about Alhaji Rafiu Johnson referred to by the Plaintiff as her Vendor in paragraph 6 of her Statement of Claim and he was told that the Alhaji did not have any connection with the land in dispute in one way or the other. 18) The Defendant will contend at the hearing of this action that neither the Plaintiff nor her so-called Vendor has valid title or interest in the land in dispute but that she resorts to blackmail in order to reap from where she did not sow. 19) The Defendant will also contend at the hearing of this action that there was no time the plaintiff was put in possession of the land in dispute by anybody at all let alone carrying out any survey work or any building operation thereon. PAGE| 9 20) The Defendant will contend at the hearing of this action that the Plaintiff’s claim is frivolous, vexactions, speculative and constitutes an abuse of Court process and that the same should be dismissed with substantial cost. On the 25th day of February 2014 date of hearing learned counsel for the Appellant, Chief Taiwo Ajala adopted their Brief of argument settled by him and filed on the 27/9/12. In the Brief were formulated six issues for determination which are as follows:- The Appellant respectfully says that six issues are set down for determination in this appeal:- (1) Whether the respondent clearly and precisely ascertained or identified the land being claimed by her. – Ground. (2) Whether the court of Appeal made a case for the respondent different from the case put forward by her at the trial Court. – Ground 2. (3) Whether the respondent properly established her root of title to the land in dispute. – Ground 3. (4) Whether the Court of Appeal was right in using Exhibit ‘B’ the Respondent’s Survey Plan solely to resolve the issue of identity of the land in dispute. – Ground 4. (5) Whether there are material contradictions in the evidence of the respondents. – Ground 5. (6) Whether the Respondent proved her case to the standard required by law. Mr. M. N. O. Olopade, learned counsel for the Respondent adopted their Brief of Argument settled by Chief Wale Taiwo and filed on 8/10/12. He adopted Issues 1, 2, 3 and 5 as raised by the Appellant as appropriate for the determination of the appeal. It seems to me that Issues 1, 4 and 6 as crafted by the Appellant are good enough to settle the nagging questions in this appeal. I shall therefore use those issues, though 1 and 4 being related would be taken together. ISSUES 1& 4: These pose the question as to whether Respondent clearly ascertained the identity of the land in dispute and if the Court of PAGE| 10 Appeal was right to use the Survey Plan, Exhibit ‘B’ solely to resolve the issue of the identity of the land. Learned counsel for the Appellant, Chief Ajala contended that the Court below acted incorrectly when it held that the identity of the disputed piece of land was clearly established by both parties and there was no doubt as to the identity of the said land. That there is no evidence on record that the land at Igbede Road, Ajagbadi is the same as the land at Maxwell Street, Ajagbadi or that one of the names is the same with the other name for the other. That the Court below misdirected itself on the identity of the land and by so doing put up a case different from the case put forward by the Respondent at the trial court thus calling for the interference of the finding of the Court below. He cited Obueke v Nnamchi (2012 12 IMWLR (Pt. 1314) 327 at 349. For the Appellant was further submitted that the evidence of PW1 and PW2 and the Respondent herself was greatly at variance with the Respondent’s pleadings and so the Court below should have held. He cited Orunengimo v Egebe (2007) 15 NWLR (Pt. 1058) 630 at 644; Njoku v Eke (1973) 5 SC 293; Emegokwe v Okadigbo (1973) 4 SC 113 at 177 etc. Responding, learned counsel for the Respondent contended that it is trite that in a claim for declaration of title to land, the Plaintiff must produce sufficient evidence to ascertain the definite and precise boundary of the land claimed in order to be entitled to the grant. He referred to Emiri v Imieveh (1999) 4 NWLR (Pt. 599) 442 at 463; Arabe v Asanlu (1980) 5 – 7 SC 78; Okedare v Adebara (1994) 6 NWLR (Pt. 349) 157. That the identity of the land in dispute was clearly established by the Respondent by Exhibit ‘B’, the Survey Plan showing the disputed land which Exhibit ‘B’ was admitted without objection by the Appellant. Mr. Olopade of counsel contended that from the pleadings of parties as well as the evidence of all the witnesses, there is absolutely no doubt as to the identity of the land in dispute which identity was known to both Appellant and the Respondent. He referred to the case of Ifeadi v Atedze (1998) 13 NWLR (Pt. 581) 231. The position as canvassed by the Appellant in the main in these issues 1 and 4 is that the appeal should be allowed and the judgment of the trial Court restored. This is because the Appellant is of the view that from the pleadings settled by the parties and the evidence led by PAGE| 11 them, that the Respondent did not prove the identity of the land she claims. That the court below by holding that the identity of the land was not shrouded in mystery or not ascertainable was a decision which interfered wrongly with the findings of the Court of trial which was the correct position. As a follow up, the appellant contends that what the Court of Appeal did was setting up a case different from what the Respondent had brought to the Court of trial. The appellant’s stance was resisted by the respondent who felt she was on firm ground in that she discharged the burden placed on her by law to prove her root of title in one of the five ways recognised under our legal system. Also, that in her evidence was Exhibit ‘A’, the purchase receipt issued to her by her predecessor-in-title and she had traced her root of title to the original owners of the land, the Abu family. That it cannot be said the land in dispute is not identified by the tendering Exhibit ‘B’, the Survey Plan which was admitted without any objection while Appellant had not tendered any Survey Plan of theirs. On the matter of whether or not the identity of the land in dispute was clear and not doubtful, it needs be said that in a claim for declaration of title to land, the plaintiff must produce sufficient evidence to ascertain the certainty or definiteness of the exact boundary of the land claimed to be entitled to the grant. In this regard are pointers on how to go about the issue of the definite identity of the land subject of the dispute. Where a party is claiming a declaration of title to land fails to establish his claim to some part of the land that should not result in the dismissal of his claim to the other part of the land. Furthermore, where a claimant lays claim to a large parcel of land but succeeds in proving the boundaries and title to a smaller parcel of the land, he is entitled to a declaration of title in respect of the smaller part of the land originally in dispute which he had proved with certainty. This for the simple reason that a court may grant less but not more than the land in dispute. Okedare v Adebara (1994) 6 NWLR (Pt. 349) 157 at 173 – 174 SC; Imah v Okgbe (1993) 9 NWLR (Pt. 316) 159; Sogunle v Akerele (1967) NMLR 58; Arabe v Asanlu (1980) 5-7 SC 78 at 85- 87; Arabe v Asanlu (1980) NSCC 213 at 218 per Bello JSC (as he then was), is a guide and he stated thus:- “It appears from the judgment of the trial Court that the part of the land granted to either party cannot be ascertained with reasonable certainty. Inspite of their PAGE| 12 commendable effort to determine and identify the part either party is entitled to, the judgment of the judges of the trial Court does not show definite and precise boundary of either part of the land awarded to the parties. It follows therefore that judgment cannot stand. Accordingly, the Court of Appeal ……. acted rightly in setting aside the judgments of the Lower Court on the simple ground that the area granted to either party is indefinite and unascertainable.” The Onus of proof lies on the plaintiff who seeks a declaration of title to land and or an injunction to establish with certainty and precision and without inconsistency the area of land to which lies claim relates. The point clearly emphasised is that a declaration to title to land can only be granted in respect of land which has definite precise and accurate boundaries. Therefore a way to discharge the onus of proving the identity of the land in dispute by such description of the land that any surveyor acting on such description could produce an accurate plan of the land in dispute. Thus, the acid test over the years is whether a surveyor, taking the record, could produce a plan showing accurately the land to which title has been given, Another way and I dare say a better and more reliable way of establishing the identity and precise extent of a piece or parcel of land in dispute is by filing an accurate Survey Plan which reflects all the features on such land and showing clearly the boundaries thereof. He cited Okedare v Adehara (1994) 6 NWLR (Pt.349) 157 at 180; 185 – 187; Baruwa v Ogunsola (1938) 4 WACA 159; Ezeokeke v Uga (1962) 2 SCNLR 197; Arabe v Asanlu (1980) 5 – 7 SC 78; Kwadzo v Adjei (1944) 10 WACA 274; Makanjuola v Balogun (1989) 3 NWLR (Pt. 108) 192; Olusanmi v Oshasona (1992) 6 NWLR (Pt. 245) 22 at 29. The Respondent as plaintiff had averred in her Statement of Claim in reference to the site of the land in dispute as follows:- “The property subject matter of this action is situated at IGBEDE ROAD, AJANGBADI in ELEM HAUSA VILLAGE OF Ojo Local Government Area of Lagos State.” In her evidence in Chief, She stated thus: “The Defendant trespassed on my land at Ajagbadi along Badagry. I bought the land from one Rafiu Johnson, the 1st witness.” PW1, Alhaji Rafiu Johnson, the Respondent, predecessor in-title testified as follows. “Some time ago, I sold a piece of land to the Plaintiff. It is a Plot of land measuring 50 x 120. The land is at Maxwell Street Village at Ojo Opposite PAGE| 13 Ojo-Alab.” On his part, the Appellant as defendant pleaded in his Statement of Defence thus;- “In answer to paragraph 3 of the Statement of Claim, the Defendant says that the property in dispute is situated at Maxwell Street, Elem Hausa in Ojo Local Government Area of Lagos State of Nigeria.” In Court testifying in his own defence the Appellant stated as follows:- “The Plaintiff sued me for possession of an uncompleted house at Maxwell Street, Elem Hausa in Ojo Local Government Area of Lagos Street.” The stance of the Appellant is that the exact name of the land was not so stated as between the Plaintiff and his witness vis-à-vis the pleadings and so the Court of Appeal should not have held that there was no difficulty in identifying the land in question, claimed by either party. The Court of Appeal had held thus: “I do not have difficulty in coming to the conclusion that the identity of the land in dispute was clearly established by both parties. There is no doubt as to the identity of the land in dispute. It was clearly identified and ascertained.” It is to be noted bearing the submissions either way in mind and not losing sight of the facts on ground inclusive of the pleadings, evidence and the evaluation put up by the Court of Appeal that when the identity of the land is certain, the name given to any particular piece of land is of no moment and of little assistance or value in ascertaining the precise boundaries or features of the land. I place reliance on Ifeadi v Atedze (1998) 13 NWLR (Pt. 581) 231. There is no law or practice which establishes that a plan is a sine qua non in a claim for declaration of title to land. But there must be some clear description to make a disputed land ascertainable. Thus, where there is no difficulty in identifying the extent of the land in dispute or the parties have agreed that an identifiable piece of land is in dispute between them, even if they refer to that land by different names, a declaration of title to land can be made without a plan thereof. Therefore, in a claim for declaration title, once there are some descriptions in the evidence which make a disputed land ascertainable the identity of the land is proved and a grant can be made with or without a survey plan. Emiri v Imieyeh (1999) 4 NWLR (Pt. 599) 442 at 463 & 465 per Kalgo JSC; Eletiko v PAGE| 14 Aroyewuni (1959) SCNLR 308; Ibuluye v Dikko (1978) 6 SC 97, Akinhanmi v Daniel (1977) 6 SC 125; Rotimi v Macregor (1974) 1 All NLR (Pt. 11) 325; Ezeudu v Obiagwu (1986) NWLR (Pt. 21) 208. However, even without the Survey Plan, Exhibit ‘B’ tendered and admitted by Respondent without objection from the Appellant, the identity of the land in issue was properly established and it is indeed funny that the Appellant would be at this late hour contesting the identity of the land which from his pleadings and the evidence he proffered had been made known. The Appellant had put forward a point that the Court of Appeal had put up a case different from that initiated by the plaintiff and defendant by the other side. The Appellant took this position in that the Court below had held that with the head of family, Aliu Saliu the only witness of the Appellant had testified that he gave the lease to the Appellant and so since no other member of the family testified in support of that lease, it meant the said Aliu Saliu dealt with the land in dispute as his personal property. This view from evaluation of the Court of Appeal was seen by the Appellant as an interference by that Court and a supplanting of the case of the parties by a suo motu arrangement by the Court of Appeal. When a plaintiff in a land case relied on and proves a conveyance as his root of title, he does not need to go beyond his vendor and then proceed to prove that vendor’s title as well. Unless the vendor’s title has become an issue in the case, parties to a land case which titles are rooted in Deeds of Conveyance need not plead or prove the title of their vendors. Dosunmu v Joto (1987) 2 NSCC 1182 SC. The attitude of the Court of Appeal or the Supreme Court as the case may be, in respect of evaluation of evidence of a trial court is that in deciding whether or not a trial court properly evaluated the evidence, the essential focus should be on whether the trial court made proper findings and reached the correct judgment upon facts before it. It is not the method or approach that necessarily determines this. Thus, so long as a trial court does not arrive at its judgment merely by considering the case of one party before considering the case of the other, its judgment if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case it may have adopted. Ajibulu v Ajayi (2004) 11 NWLR (Pt. 885) 458; Woluchem v Gudi (1981) 5 SC 291. It is essential to the validity of sale of family land that the head of family must join in the PAGE| 15 conveyance and the principal members of the family must consent to the transaction. Such a combination of parties to the conveyance of family land by the head of family and the principal members of the family is unimpeachable. Any sale or disposition purporting to transfer family land without these essential customary elements is void abi initio. Fayehun v Fadeju (2000) 6 NWLR (Pt. 661) 390 at 404, 405. A sale of family land by the head of family is only voidable where it is made without the concurrence of principal members of the family. Such a sale is not void ab initio but merely voidable and the family can set aside such a sale if the other members act timeously. Fayehun v Fadoju (2000) 6 NWLR (Pt. 661) 390 SC; Ekpendu v Erika (1959) SCNLR 186); City Property Dev. Ltd v A. G. Lagos State (1976 1 SC 71; Solomon v Mogaji (1982) 11 SC 1; Lukan v Ogunsusi (1972) 5 SC 40; Adedibu v Makanjuola 10 WACA 33. It is no longer a matter for debate on the fact that a court does not make declarations of title either on mere admission in pleadings or in default of defence without hearing appropriate evidence and being satisfied with such evidence. It is for that reason that the party laying claims satisfy the court by evidence and not by an admission in the pleadings of the defendant supporting this entitlement to the declaration sought. The fact is not lost in mind that the court still has a discretion of granting or not granting the declaration, however, the success of such a claimant in action depends entirely on the strength of his own case and not on the chance thing of the weakness of the defence. Okedare v Adebara (1994) 6 NWLR (Pt. 349) 157; Bello v Eweka (1981) 1 SC 101; Motunwase v Sorungbe (1988) 4 NWLR (Pt. 92) 90; Kodilnye v Odu (1935) 2 WACA 336. The discomfort of the Appellant on the view taken by the Court of Appeal in making its summation is not supported since that view is not outside the law. This is in the light of Section 73 of the Evidence Act which stipulates thus: “No fact of which the court must take judicial notice need be proved.” Therefore, the Court of Appeal cannot be critised when it had put before it and at the trial court, the evidence of the head of family, Aliu Saliu who stated that he organised the lease in favour of the Appellant on behalf of his family. There was nothing else in support of the consent of the family having been obtained or that the transaction was that of the Appellant and the family. Also no member of the family was called to testify in support or to buttress that of the DW1, Aliu Saliu, therefore nothing held back the hand of the Court from making its PAGE| 16 conclusion based on what was before it. If the Appellant in pleading being put on the land by the family, then it is not enough for just the evidence of DW1 to be taken as sufficient to invest the Appellant with title to family land. This is because pleading is not synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a case. Thus a party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleadings and where there is none, then the averments in the pleading are deemed abandoned. The same principle of law goes for whatever defence a defendant seeks to rely on in the process of demolishing the case against him. Arabambi v Advance bevereges Ind. Ltd (2005) 19 NWLR (Pt. 959) 1 at 28; Emegokwue v Okadigbo (1973) NMLR 192; Adimora v Ajufo (1988) 3 NWLR (Pt. 80 1; Olorunfemi v Asho (2000) 2 NWLR (Pt. 642) 143. From the foregoing, it is clear that the resolution of the questions in the issues under discourse cannot be other than against the Appellant and in favour of the Respondent. ISSUE NO. 6: Whether the Respondent proved her case to the standard required by law. Learned counsel for the Appellant submitted that from its findings on the identity of the disputed land, the Court below made a case for the Respondent different from the case put forward by her at the trial Court when the Court below referred to the testimony of Aliu Saliu, the only witness of the Respondent as head of Abu family and the Baale of the Village. Also that the Court below went outside the case of the parties in going into the other joint owners not giving evidence on ratifying the lease to the Respondent. That it is not proper for a court to give a decision on a point not argued before it. He referred to N. B. C, v Integrated Gas (Nig) Ltd (2005) 4 NWLR (Pt.916) 617 at 644; Anyaduba v N. R. T. C. Ltd (1992) 5 NWLR (Pt. 243) 535; Adeosun v Babalola (1972) 5 SC 292. For the Appellant was also stated that where as in this case for declaration of title the line of succession has gaps and mysterious linkages or nexus which are not established, such a line of action should be rejected. He cited Ukaegbu v Nwololo (2009) 3 NWLR (Pt. 1127) 194 at 220 – 221; Dim v Enemuo (2009) 10 NWLR (Pt. 1149) 353 at 378; Magaii v Vadburv Nigeria Ltd (1985) 2 NWLR (Pt. 7) 393. Chief Ajala of counsel for the Appellant said the Court of Appeal failed to avert its mind to the established principle of law that a declaratory judgment is discretionary and can only be PAGE| 17 exercised in favour of a Plaintiff on the strength of his case and not on the weakness of the Defendant’s case. He relied on Momoh v Umoru (2011) 15 NWLR (Pt. 1270) 217 at 247 – 248; Awomotu v Salami (1978) 3 SC 105 at 115. That it is trite law that the onus is on a Plaintiff seeking declaration of title to prove his case and a defendant is under no duty to prove anything unless where the onus shifts to him. He cited Beniginus Duru & Anor v Jonathan Nwosu (1989) NWLR (Pt. 113) 24. Chief Ajala of counsel said that the failure of the trial court to highlight the material contradiction in the respondent’s case in its judgment is inconsequential and should not have led to reversal of the judgment since the trial court correctly and properly considered the respondent’s case before making her decision that there was approbation and reprobation in the evidence of the respondent and failure by the trial court in the judgment to highlight them did not affect its decision and the Court of Appeal was in error when it failed to discover and give proper consideration to them. He cited Alero Jadesinmi v Okotie-Eboh & Ors (1989) 4 NWLR (Pt. 113) 115. It was further submitted for the Appellant that the trial Court duly complied with the law in its evaluation and consideration of the evidence led by both the Appellant and the Respondent in the matter and that the Court of Appeal acted incorrectly when it reversed what the trial Court did. He cited Mogaji v Odofin (1978) 4 SC91at 93. In response, learned counsel for the Respondent submitted that the judgment of the Court of Appeal was based on what was before Court and it is not correct that the Court below went outside what-was in the record. That DW1, Aliu Saliu testified and identified himself as head of the family and Baale of the Village and that the Respondent had been given a receipt which he signed as head of the family and that he was put into possession by him, DW1. That the Courts are enjoined to take judicial notice of all laws for the time being in force. He cited Section 74 (1) fa) of the Evidence Act. That it is therefore not correct to say the Court of Appeal made a case for the parties or went outside the case as put forward by the Respondent at the trial. He referred to Fayehun v Fadoju (2000) 6 NWLR (Pt. 661) 404; Akerele v Atunrase (1969) 1 All NLR 201; Esan v Faro (1947) 12 WACA 135; Arabambi v Advance beverages Ltd (2005) 19 NWLR (Pt. 959) 1 etc. Mr. Olopade for the Respondent submitted that the Respondent sufficiently discharged this burden by establishing to the satisfaction of Court her root of title not only by the PAGE| 18 production of document of title in Exhibit ‘A’ but also by tracing her root of title to the Abu family of whom Alhaji Aliu Saliu was the head and who duly issued the receipt to the Respondent’s predecessor-in-title. He cited Ajibulu v Ajayi (2004) 11 NWLR (Pt. 885) 473 – 474; Dosunmu v Joto (1987) 4 NWLR (Pt. 297). That there were no contradiction in the evidence of Respondent and her witnesses and nothing affecting the credibility of the witnesses. He cited Esangbedo v State (1989) 7 SC (Pt. 1) 36 at 43-44. I cannot resist going back to reiterate the five recognised ways in proving title when there is a land suit and two contesting parties. These are well stated in the case of Idundun v Okwunagba (1976) 9 -10 SC (Reprint) 140 which is now the locus classicus on the point. These methods or ways are thus:- a. By traditional history or evidence; or b. By documents of title; or c. By various acts of ownership numerous and positive, and extending over a length of time as to warrant the ownership; or d. By acts of long enjoyment and possession of the land; and e. By proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would in addition be the owners of the land in dispute. The practice in declaration of title or a dispute to such declaration is Constance and the law is that a party claiming title to land must show that he acquired his title in any one of the five ways or methods above stated. See Ojoh v Kamaly & Ors (2005) 2 SC (Pt.11) 1 at 24; Ajibulu v Ajayi (2004) 11 NWLR (Pt. 885) 473-474. In testifying, Respondent as Plaintiff at the trial Court she stated that she bought the land from one Rafiu Johnson the 1st witness on the 3rd day of January 1978 and tendered the receipt issued to her as Exhibit ‘A’. The said Alhaji Rafiu Johnson testified as PW1 and stated thus:- “I had two Plots of land and I sold one to the Plaintiff. The two plots are together. Plaintiff paid £700 i.e N1,400.00 in January 1978 i.e 3rd January, 1978. I gave her a receipt. This is the purchase receipt.” PAGE| 19 It is the duty of a plaintiff claiming title to land to show how he or his predecessor-in-title acquired title in one of the five ways or methods recognised in proving title to land. Ajibulu v Ajayi (2004) 11 NWLR (Pt. 885) 458 at 473 – 474; Ogunleye v Oni (1990) 2 NWLR (Pt. 135) 745; Piaro v Tenalo (1976) 12 SC 31; Ige v Fagbohmu (2001) 10 NWLR (Pt. 721) 468. Where a party has satisfied the court as to his title to land in dispute, the court need not inquire into the title of his predecessor-in-title. The party does not need to prove the title of his vendor except where it has become an issue. Ajibulu v Ajayi (2004) 11 NWLR (Pt. 885) 458 at 474; Dosunmu v Joto (1987) 4 NWLR (Pt. 65) 297. On appeal, there are rules of practice and one of the cardinal rules is that an appellate court should not re-open issues of fact unless there is a strong basis for that, such as where the fact supposedly laid to rest is shown to be perverse, illegal or not a proper exercise of judicial discretion. Also a party who was victorious at the lower Court ought not to normally be confronted with a new case on appeal simply because his adversary decided to bring forward his case in trickles or piece by piece and at his fancy. This is because a case on appeal is not new, the foundation is and remains the writ of summons and claim from the court of first instance, while what is on appeal is a mere continuation sheet. See Esangbedo v The State (1989) 3 NSCC 23. When the issue as in this case is which of two claimants has a better right of possession to and/or occupation of a piece or parcel of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title thereto. Ajibulu v Ajayi (2004) 11 NWLR (Pt. 885) 458 at 475 per Adekeye JCA (as she then was), Fasoro v Beyioku (1988) 2 NWLR (Pt. 76) 263; Aromire v Awoyemi (1972) 1 All NLR (Pt.1) 10 NWLR (Pt. 721) 468; Olohunde v Adeveju (2000) 10 NWLR (Pt. 676) 562. On who has established a better title, the Appellant holds the view that the Court of Appeal was not right to have stated that the Respondent had not established her title after the failure to call lya Igbede as witness since she sold the land to Respondent’s predecessor-in-title. That assertion is not within the requirement of the law since the Respondent was able to call her predecessor-in-title to testify on her behalf and with the receipt, Exhibit ‘A’ in tow and PAGE| 20 so being satisfied there was no necessity for the predecessor-in-title to call his own predecessor-in-chief or vendor. I place reliance on Dosunmu v Joto (1987) 4 NWLR (Pt. 65) 297. On the contradictions raised by the Appellant as sufficient to change the course of the matter, the Court of Appeal held thus:- “I do not see any contradictions in the evidence of these witnesses. It is not enough for the trial Court to say that there are contradictions in the testimonies of witnesses. It must show clearly in the judgment what these contradictions are. The learned trial judge should not have treated the evidence of the plaintiff in isolation. He must balance the evidence called in support of the Plaintiffs case with that of the Defendant.” The stance of the Appellant is anchored on their point of view that there was approbation and reprobation in the evidence of the respondent and though the trial court failed to highlight them in the judgment, in reaching its decision, the Court of Appeal should have discovered those contradictions and given proper consideration to them. Learned counsel for the Appellant cited Jadesinmi v Okotie-Eboh & Ors (1989) 4 NWLR (Pt. 113) at 115. This errand which learned counsel for the Appellant had sent the Court of Appeal and since that court did not comply, it is for this court to do so. I am at a loss to find the heading under which this message of the appellant for the Court to embark on a voyage of discovery is as I cannot fathom it. The implication is that if there were contradictions and the trial court failed to highlight them, it means they were not material or visible. That having happened, it is not for the Court of Appeal or this one to first acquire a microscope or binoculars to be able to set on the mission of the discovery of the contradictions spoken of and go further to ascertain their materiality. Until the court is satisfied it has the obligation or duty to do what the appellant posits as correct then, what is before court is what it would utilise, no more no less. For emphasis, it would need be said that this Court or others have held ad infinitum that it is not every contradiction in evidence that would affect the credibility or testimonies of the witnesses. This is so because for testimonies to be affected, I dare say adversely, the contradictions must be substantial or weighty and material. Therefore it is not every contradiction however minute that would suffice. I rely on Esangbedo v The State (1989) 7 SC (Pt. 1) 36 at 43 – 44. PAGE| 21 From the above clearly, the Court of Appeal was on solid ground in its appraisal and evaluation of what was before it and so I resolve this issue against the Appellant. All the issues resolved against the Appellant, I do not hesitate in holding that the appeal lacks merit, and so I dismiss it. I affirm the judgment and orders made by the Court of Appeal. I award N100,000.00 costs to the Respondent to be paid by the Appellant.
MAHMUD MOHAMMED, JSC: I have had the opportunity before today of reading the judgment just delivered by my learned brother Peter- Odili JSC. I entirely agree with lucid reasons therein advanced to arrive at the conclusion that the appeal lacks merit and therefore should be dismissed. The Respondent in this appeal was the Plaintiff at the trial Lagos State High Court of Justice where she sued the Appellant as the Defendant and claimed in the Writ of Summons and statement of claim dated 20th February, 1990 the following reliefs- “(a) A declaration that the Plaintiff is entitled to statutory right of occupancy in respect of the piece of land and building thereon situate, laying at Igbede Road, Ajangbadi, Ilemba Hausa Village in Ojo Local Government Area of Lagos State and which is more particularly described and delineated on the survey Plan filed with the statement of claim. (b) Order for possession of the said piece of land and building thereon. (c) Perpetual injunction retraining the Defendant, his servants or agents and any other persons purporting to claim under or through him from further committing acts of trespass on the said property or interfering with Plaintiff’s right and interest in or over the property indispute.” After the exchange of pleadings between the parties, the matter proceeded to the hearing at the end of which the learned trial Judge dismissed the Plaintiff/Respondent’s claims in the following concluding part of the judgment delivered on 23rd September, 1994 thus – “For the reasons I have given above in this judgment, the Plaintiff’s claim fails in its entirety and (sic) they are hereby dismissed accordingly.” PAGE| 22 Upon appeal to the Court of Appeal however, after giving the parties a hearing, the Court in its judgment given on 19 December, 2002, allowed the Appellant/Respondent’s appeal and set aside the judgment of the trial High Court thereby igniting the present appeal by the Appellant to this Court. Although the learned Counsel to the Appellant had distilled as many as 5 issues from the 6 grounds of appeal filed on behalf of the Appellant, which issues were also adopted in the Respondent’s brief of argument, I shall only touch on the issue of identity of the land in dispute and the alleged failure of the Plaintiff/Respondent to establish the root of her title to the property in dispute. On the issue of the identity of the property in dispute, the law is indeed trite that in a claim such as the one at hand for declaration of title to the property in dispute, the Plaintiff must produce sufficient evidence to ascertain the definite and precise boundary of land claimed. See Arabe v. Asanlu (1980) 5 – 7 S.C. 78, Okedare v. Adebara (1994) 6 N.W.LR. (Pt. 349) 157 and Emiri v. Imieyeh (1999) 4 N.W.LR. (Pt. 599) 442 at 463 where KalgoJSC said- “One important way now commonly used by parties in land dispute is to establish the identity of the land in dispute by filing a detailed and accurate survey plan of the land showing the various features on such land sufficient to point to the clear boundaries thereof.” In the present case, the Respondent testified that on buying the piece of land she took steps to have it properly surveyed and the survey plan was admitted in evidence as Exhibit ‘B’ which clearly put the identity of the land in dispute in proper place. In any case from the evidence on record, the identity of the land in dispute which the Respondent started putting a building upon which was ultimately completed and occupied by the tenants of the Appellant, was never in doubt between the parties. In otherwords the land which is the subject the contest is well known to the parties all along. With regard to the issue of whether or not the Plaintiff/Respondent had established her root of title to the disputed property to have been entitled to judgment, the Court below was satisfied that the evidence put in place by the Respondent in the purchase receipt issued to her by her vendor and the survey plan of the property in dispute, coupled with the oral evidence, that Court needed not to enquire into the title of the Respondent’s predecessor which was not in PAGE| 23 dispute or in issue at the trial Court. See Dosunmu v. Joto (1987) 4 N.W.LR. (Pt. 65) 297. The Court below was therefore right in finding for the Plaintiff/Respondent as having proved her title by production of document of title and evidence of having been put in possession under Customary Law as required by the leading case of Idundun v. Okumagba (1976) 9 -10 S.C. 140. For the above and more comprehensive reasons given in the lead judgment of my learned brother Peter-Odili JSC, I also see no merit at all in this appeal which is hereby dismissed with order as to costs as contained in the lead judgment.
M. S. MUNTAKA-COOMASSIE, JSC: This is an appeal against the judgment of the Court of Appeal, Lagos Division, hereinafter called lower court. The appellant herein was the defendant in suit N0.1B/355/90 filed against him by the Respondent then as the plaintiff at the Lagos state High court, Ikeja Judicial Division presided over by Sotuminu J. The plaintiff, Respondent then, claimed three (3) reliefs in her writ of summons which reads thus: a. ADECLARATION that the plaintiff is entitled to Statutory Right Of Occupancy in respect of the piece of land and building thereon situate, lying at Igbede Road, Ajangbadi ilemba Hausa Village in Ojo Local Government Area of Lagos State and which is more particularly described and delineated on the Survey plan filed with the Statement of Claim. b. order for possession of the said piece of land and building thereon. c. perpetual injunction restraining the defendants, his servants or agents and any other persons purporting to claim under or through him from further committing acts of trespass on the said property or interfering with plaintiffs right and interest in and over the property in dispute. Annual Rental Value N800.00 The above writ of summons was accompanied by the statement of claim in paragraph 18 thus: “WHEREOF the plaintiff claims as per the writ of summons”. The defendant entered an appearance through a solicitor who filed a statement of defence and denies each and every allegation of fact contained in the plaintiffs statement of claim. The defendant maintained under paragraph six (6) of the statement of defence that the PAGE| 24 land in dispute was leased to him for 99 years by the Abu Family of Ilemba 1976 at an annual rent of one hundred naira (N100.00) as evidenced by the purchase receipt dated 23rd of May 1976. Pleadings were filed and exchanged by the parties. The Respondent, as plaintiff did not file a reply to the Appellants Statement of defence. The plaintiff/respondent testified on her own behalf and called two witnesses. The suit thereafter proceeded to trial, one (1) witness testified for the defendant/Appellant including himself. Both parties tendered documents in proof of their respective cases. At the close of evidence learned counsel for both parties addressed the trial Court orally. On 23/9/1994 the trial Court entered judgment in favour of the defendant/Appellant, Mr Michael Aiyeola. The claim of the plaintiff was dismissed in its entirety on pp. 49 – 64 of the Record. Trial Court held. The principle of law is that the court will not grant a declaration of title to land whose boundaries are not sufficiently demarcated so as to enable a surveyor to “pin point” the area claimed, in Udofia vs. Afia (1940) 6 WACA. 216, the west African Court of Appeal held that not only does the onus to establish those boundaries lie on the plaintiff but that it is desirable to make the point in question part of the judgment in the case…………… In kodilinye vs Mbanefo Odu (1935) 2 WACA page 336, at page 337 the west African Court of Appeal held as follows and I quote. “The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant, such a judgment decrees no title to the defendant, he is not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused, ” and there is little to choose between the rival traditional stories the plaintiff fails in the decree he seeks, and judgment must entered (sic) for the defendant”. “For the reasons I have given above in this judgment the plaintiffs claim PAGE| 25 fails in its entirety and they are hereby dismissed accordingly”. The respondent aggrieved by the above judgment of the trial Court successfully appealed the court of Appeal, Lagos Division. The appellant in the Court below formulated five (5) issues for determination. The court below unanimously allowed the appeal and set aside the judgment of the trial court on 19th day of December, 2000. Galadima JCA, as he then was read the judgment of that Court. His lordship has this to say on page 160 of the record: “In the record the learned trial judge in his judgment held that he preferred the evidence of the respondent to that of the appellant because the evidence of the appellant contained many material contradictions and it is not satisfactory. From the record, prior to her testimony, Appellant first called her predecessor-in-title one Alhaja Rafiu Johnson, before calling her last witness, one Kehinde Isa. I do not see any contradictions in the evidence of these witnesses, it is not enough for the trial court to say there are contradictions in the testimony of witnesses. It must be shown clearly in the judgment what these contradictions are. The learned trial judge should not have treated the evidence of the plaintiff in isolation. He must balance the evidence called in support of the plaintiffs case with that of the defendant. In the result this appeal succeeds. The decision of the lower court is hereby set aside. The Defendant, now appellant, was dissatisfied with the above judgment of the court below lodged a further appeal to the Supreme court on a Notice of Appeal containing six (6) grounds of appeal. They are herein under reproduced without their particulars: “1. The Court of Appeal erred in law and on the facts in allowing the appeal when from the totality of the evidence on record the Respondent did not prove the identity of the land in dispute. 2. The court of Appeal erred in law and on the facts when it held that the failure of the other joint owners to give evidence in support of the case showed that Aliu Saliu dealt with the land in dispute as his personal property. 3. The Court of Appeal erred in law and on the facts in not holding from the evidence on record that the Respondent has failed to prove her root of title. 4. The Court of Appeal erred in law and on the facts in receiving or treating the survey plan tendered by the Respondent as Exhibit and acted on it when it was PAGE| 26 clear from the record that the person who tendered it was not the maker. 5. The court of Appeal erred in law on the facts in not holding that the Respondent has not proved her case to the standard in law and thereby dismissed the appeal. 6. The judgment is against the weight of evidence”. Parties in compliance with the rules of the Supreme Court filed and exchanged briefs of argument and adopted same before us on 25/2/2014. The Appellant has adopted his brief of argument and distilled six (6) issues for the determination of the appeal as follows:- a. Whether the Respondent clearly and precisely ascertained or identified the land being claimed by her (ground 1) b. Whether the Court of Appeal made a case for the Respondent different from the case put forward by her at the trial court (Ground 2). c. Whether the Respondent properly established her root of title to the land in dispute (Ground 3). d. Whether the court of Appeal was right in using Exhibit “B” the Respondent’s survey plan solely to resolve the issue of identity of the land in dispute (Ground 4). e. Whether there are material contradictions in the evidence of the Respondent (Ground 5) f. Whether the Respondent proved her case to the standard required by law. I was privileged to have read before now the illuminating lead judgment rendered by my noble lord Peter-Odili, JSC. I have gone through the reasons and conclusions adumbrated in the said lead judgment and I found them agreeable to my understanding of the law on the subject. I adopt them, with respect, as mine, it is ciear that the appeal lacks merit same deserves to be dismissed. I dismiss same and I abide by the consequential orders made by His Lordship, Peter-Odili JSC, including the order as to costs.
JOHN AFOLABI FABIYI: I have had a preview of the judgment just delivered by comprehensive PAGE| 27 reasons therein adumbrated to arrive at the conclusion that the appeal is devoid of merit and should therefore be dismissed. The claim of the plaintiff/respondent at the trial court is for the declaration of title to the land in dispute, possession and an order of perpetual injunction. The trial court, in the main, failed to assess the evidence led and talked of unidentified contradiction. It dismissed the plaintiffs claim. Same precipitated an appeal to the court below which found no real contradiction. The Court of Appeal found that the land in dispute was properly identified and known to both parties. The plaintiff who purchased the piece of land, tendered receipt and a Plan. She traced her root to the predecessor-in-title and to the original land owner-Abu Family. The Court of Appeal allowed the appeal. The defendant felt unhappy with the judgment of the court below and has appealed to this court. The Notice of Appeal contains six (6) grounds of appeal. Before this court, the appellant formulated six issues for determination as follows:- “(1) Whether the respondent clearly and precisely ascertained or identified land being claimed by her. (2) Whether the Court of Appeal made a case for the respondent different from the case put forward by her at the trial court. (3) Whether the respondent properly established her root of title to the land in dispute. (4) Whether the Court of Appeal was right in using Exhibit B the respondent’s Survey Plan solely to resolve the issue of identity of the land in dispute. (5) Whether there are material contradictions in the evidence of the respondent. (6) Whether the respondent proved her case to the standard required by law.” As extant in the records, the parties were at one as to the identity and location of the land in dispute. In the case of Ajide Arabe v. Ogunbiyi Asanlu (1980) 5-7 SC 78 at 85, this court per Idigbe, JSC pronounced that it is settled that where there is no difficulty in identifying the land in dispute, a declaration may be made without it being based on a plan. See: also Odofin v. Oni (2001) 1 SCNJ 130 at 144. There is no big deal in the appellant’s complaint in this regard. To make assurance doubly sure, the respondent tendered the Survey Plan of the land in PAGE| 28 dispute as Exhibit B. Same was not challenged by the appellant who failed to tender any Survey Plan of his own to counter Exhibit B. The court below was on a firm ground in placing reliance on it. The appellant talked of contradictions in the evidence of the respondent. I am at pains to see where same was clearly pin-pointed. It is the duty of the appellant to clearly state his surmised contradiction and how it impacts on the substance of the matter in dispute. Trivial and miniature contradiction cannot be of any avail to the appellant. See: Queen v. Iyanda (1960) SCNL 595. I cannot see how the complaint touching on contradiction has advanced the case of the appellant in the prevailing circumstance. For the above and of course the detailed reasons advanced by my learned brother, I too see no merit in this appeal. It is hereby dismissed. I affirm the judgment of the court below and abide by all consequential orders contained in the lead judgment; that relating to costs inclusive.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JSC: I have had the benefit of reading in draft the judgment of my learned brother, PETER-ODILI, JSC, just delivered. I agree that the appeal lacks merit and should be dismissed. My comments are in support of the lead judgment and for emphasis. The respondent as plaintiff at the High Court of Lagos State, Lagos Judicial Division (the trial court) took out a Writ of Summons against the appellant as defendant on 20/2/1990 seeking a declaration of title, possession and injunction in respect of the piece of land and building thereon situate at Igbede Road, Ajangbadi, Ilemba Hausa Village in Ojo LGA of Lagos State more particularly described and delineated on the survey plan filed along with the statement of claim. Pleadings were duly filed and exchanged. At the trial the respondent testified on her own behalf and called two other witnesses. The appellant also testified on his own behalf and called one other witness. Exhibits were tendered. It was the respondent’s case that she purchased the land in dispute from one Rafiu Johnson, who testified as PW1 on 3/1/78 and was duly put into possession. She commenced a building on the land up to the roofing stage but was unable to proceed further due to financial constraints. Two or three years later, when she went PAGE| 29 back to the land she found the appellant and some workers on the land. She also discovered that her building had been roofed. She reported the matter to her vendor, PW1, who advised her to take the matter to court. In support of her claim she tendered a purchase receipt and a survey plan of the land. They were admitted in evidence and marked Exhibits A and B respectively. The appellant’s defence, on the other hand was that he purchased the land in dispute from the Abu family in May 1976. He stated that the land is situate at Maxwell Street, Ilemba Hausa in Ojo Local Government. He tendered Exhibit C, an agreement said to be between himself and the said family, signed by the head of the family, and Exhibit D, his purchase receipt. He stated that he was put into possession of the land and thereafter surveyed it. He tendered a survey plan, which was marked ID1 for identification. It was not subsequently tendered as an exhibit in the proceedings. He stated that he had built a house containing 12 rooms on the land since 1989 and put tenants therein, and that he remained in undisturbed possession until sometime in 1990 when a notice was pasted on the wall of the house on the instructions of the respondent, which was brought to his attention by one of his tenants. He maintained that the land belonged to him. The head of the Abu family, Aliu Saliu, testified as DW1 and stated that the appellant has been their tenant since 1976 and that he personally put him in possession. At the conclusion of the trial, and after listening to oral addresses of counsel, the court in a considered judgment delivered on 23/9/1994, dismissed the respondent’s claims in their entirety in the following terms: “Having gone through carefully the evidence of both parties, I prefer the evidence of the defendant to that of the plaintiff. I come to this conclusion because the evidence of the plaintiff contained many material contradictions and it is not satisfactory. …. The plaintiffs claim as stated above is for declaration of title, possession and injunction. Therefore, for the plaintiff to succeed she must prove the identity of the land she claims. Having gone through the evidence led by both parties and their pleadings, it is my view and I so hold that the identity of the land she claims is in dispute and the plaintiff gave no satisfactory evidence in this respect. The principle of law is that the Court will not grant a declaration of title to land whose PAGE| 30 boundaries are not sufficiently demarcated so as to enable a surveyor to “pin point’ the area claimed. … For the reasons I have given above in this judgment the plaintiffs claim fails in its entirety and they (sic) are hereby dismissed accordingly.” (See pages 62 – 64 of the record.) Being dissatisfied with this decision she appealed to the Court of Appeal, Lagos Division (the lower court), which allowed the appeal and set aside the judgment of the trial court. The appellant has now appealed to this court vide Notice of Appeal filed on 27/9/2012 with leave of this court granted on 18/9/2012. The Notice of Appeal contains 6 grounds of appeal. The appellant formulated 6 issues for determination as follows: 1. Whether the Respondent clearly and precisely ascertained or identified land being claimed by her. 2. Whether the Court of Appeal made a case for the Respondent different from the case put forward by her at the trial court. 3. Whether the Respondent properly established her root of title to the land in dispute. 4. Whether the Court of appeal was right in using Exhibit *B’ the Respondent’s Survey Plan solely to resolve the issue of identity of the land in dispute. 5. Whether there are material contradictions in the evidence of the Respondent. 6. Whether the Respondent proved her case to the standard required by law. The respondent adopted Issues 1, 2, 3 & 5. I am of the view that the appellant’s Issue 4 can be accommodated under Issue 1 while Issue 6 can be accommodated under Issue 3. Issues 1 and 4 It is contended on behalf of the appellant that the respondent failed to prove the identity of the land in dispute. This view is premised on the fact that the appellant joined issue with her on the location of the land. It was contended that the land is situate at Maxwell Street and not Igbede Road, as pleaded by the respondent. It is also contended that the respondent’s survey plan, Exhibit B, should not have been admitted in evidence as an exhibit but should have been marked “ID” for identification because it was not tendered through its maker and because the PAGE| 31 appellant and his counsel were not in court at the time it was tendered. It has been firmly settled by a plethora of authorities that there are five methods by which a claimant for a declaration of title to land may prove his claim. He may rely on any one of them to succeed. They are: (a) By traditional evidence. (b) By production of documents of title duly authenticated and executed. (c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. (d) By acts of long possession and enjoyment. (e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. See: Idundun Vs Okumaaba (19761 9 – 10 SC 227: Nkado Vs Obiano (19971 5 NWLR (Pt.5031 31: Adesanya Vs Aderonmu (20001 FWLR (Pt.151 2492: (20001 6 SC (Pt.IIl 18. The onus is on the claimant to prove his title upon a preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See: Onwuabufor Vs Okove (1996) 1 NWLR (424) 252: Shittu Vs Fashawe (20051 14 NWLR (946) 671: Eze Vs Atasie (20001 9 WRN 73 at 88: Adesanya Vs Aderonmu (20001 13 WRN 104 at 115 lines 10 – 35. It is also imperative that the identity of the land being claimed is certain. Where there is a dispute as to the identity of the land in dispute, the burden is on the party claiming title to establish the identity by specific and unequivocal evidence as to its boundaries. See: Aremu Vs Adetoro (2007) 16 NWLR (Pt.10601 244: (2007) 7 SC (Pt.II) 1; Odesanya Vs Ewedemi (19621 1 All NLR 320. This may be done in either of two ways. The claimant may give an oral description of the land sufficient to make it ascertainable. See: Aremu Vs Adetoro (supra): Awere Vs Lasoiu (1975) NMLR 100: Idehan Vs Osemwenkhae (19971 10 NWLR (Pt.525) 358; or he may file a survey plan. A survey plan is not required in every case. Where an oral description is relied upon, the test is whether a surveyor can, from the record, produce an accurate plan of such land. See: Udofia Vs Afia (19401 6 WACA 24: Kwadzo Vs Adjei (19441 PAGE| 32 10 WACA 274. It is also the law that once there is no difficulty in identifying the land in dispute, a declaration of title may be made without it being based on any plan whatsoever. See: Bajoden Vs Enock Iromwanimu & Anr. (19951 SCNJ 205; Akinhanmi Vs Daniel (19971 6 SC 125: Ibuluva Vs Dikibo (19761 5 SC 97. The issue in this case is whether there was any dispute as to the identity of the land. It has been held by this court that before the identity of the land can be raised as an issue, the defendant must have raised it in his statement of defence by specifically disputing either the area or size covered or the location shown in the plaintiff’s plan (if there is a plan) or as described in the statement of claim. In such circumstances a plaintiff who relies on a plan must show that his plan corresponds with the area claimed or in dispute. See: Adenle Vs Olude (20021 9 – 10 SC 124: Aro Vs Obaloro (19681 NMLR 238: Onyema Oke Vs Amos Eke (19821 12 SC 218: Salami Vs Oke (19871 4 NWLR (Pt.63) 1. The relevant pleading of the parties as contained in paragraph 3 of the statement of claim and paragraph 3 of the statement of defence is as follows: “Statement of Claim: PARAGRAPH 3: The property, subject matter of this action is situated at AGBEDE ROAD, AJAGBADI in ILEMBA HAUSA VILLAGE of OJO LOCAL GOVERNMENT AREA OF LAGOS STATE Statement of Defence: PARAGRAPH 3: In answer to paragraph 3 of the statement of claim the defendant says that the property in dispute is situate at MAXWELL STREET, ILEMBA HAUSA in OJO LOCAL GOVERNMENT AREA of Lagos State of Nigeria”. At the trial, PW1, Alhaji Rafiu Johnson, the respondent’s vendor testified in support of her case. He described the land as being at Maxwell Street, Ilemba Hausa at Ojo. The respondent herself described the land she bought from PW1 as being at Ajangbadi along Badagry. She tendered Exhibit B, a survey plan in proof of the identity of the land. From the record of proceedings, the appellant and his counsel arrived late to court on the day the respondent testified. He and his counsel arrived while she was still giving her evidence in chief PAGE| 33 but after Exhibit B had been tendered. She was not cross-examined on Exhibit B vis a vis the identity, location or size of the land. She maintained that she met the appellant on the land when she went back after a period of absence. In his evidence in chief the appellant testified that the plaintiff is claiming ownership of his land and uncompleted building situate at Maxwell Street, Ilemba Hausa in Ojo Local Government Area. Although he sought to rely on a survey plan, it was tendered for identification only and was never admitted in evidence as an exhibit. The lower court, per Galadima, JCA (as he then was) after reviewing the evidence concluded thus at page 8 of the record: “I do not have difficulty in coming to the conclusion that the identity of the land in dispute was clearly established by both parties. There was no doubt as to the identity of the land in dispute. It was dearly identified and ascertained. Besides the evidence of both parties, Exhibit B was the survey plan of the land in dispute, which the appellant tendered without any objection. This survey plan showed quite dearly the area of land to which the appellants claim related. The respondent did not tender his survey plan in respect of the land in dispute and therefore did not put the features of the survey plan tendered by the appellant in issue. I do not think that the respondent wanted to seriously challenge the survey plan. A mere general traverse in law is not sufficient. The respondent did not tender his survey plan in evidence in respect of the land in dispute. He therefore failed to join issues with the appellant as regards the identity of the boundaries of the land in dispute.” The law is well settled that where the parties, by the evidence adduced both oral and documentary are ad idem on the identity of the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called different names is not fatal to the case of the party claiming. See: Damini & Anor. Vs Abraham & Ors. (2001) 16 NWLR (Pt.738) 20; (20011 6 SC 154: Aromire & Ors. Vs Awoyemi (19721 1 ALL NLR (Pt.1) 101 @ 113. In the instant case, not only were the parties ad idem as to the identity and location of the land in dispute, as rightly pointed out by the lower court, the appellant failed to challenge Exhibit B, the respondent’s survey plan and also failed to tender any survey plan of his own to counter PAGE| 34 Exhibit B. The finding of the lower court reproduced above is unassailable and fully supported by the evidence. I do not see any reason to disturb it. Issues 1 and 4 are accordingly resolved against the appellant. Issue 2 The appellant’s complaint under this issue is the finding of the lower court that the failure of the joint owners of the land to testify in support of the lease allegedly granted to him showed that his witness, DW1 dealt with the land in dispute as his personal property. The appellant’s contention is that the lower court made a case for the respondent that she did not make for herself at the trial court. Having examined the evidence on record, I am of the view that the court was merely making an observation based on the position of the law in relation to the facts placed before the court. The appellant’s vendor, Aliu Saliu, testified that his family leased the land to the appellant and that he as Head of the family signed the receipt and put him in possession. No evidence was led to show that other principal members of the family agreed to the sale. At page 38 of the record, the appellant admitted under cross-examination that he only knew and dealt with the Head of the family who signed Exhibit C (the agreement) for him. Exhibit C is at page 70 of the record. There is nothing to show that it was signed with the consent of principal members of the family. In any event, it is not every mistake by a court that will lead to its judgment being overturned on appeal. See: Diamond Bank Ltd. Vs Partnership Investment Co. Ltd. & Anor. (2009) 18 NWLR (Pt.1172) 67: Tanko Vs The State (2009) 4 NWLR (Pt.1131) 430. The appellant has not shown that the court’s finding in this regard has occasioned a miscarriage of justice. This issue is accordingly resolved against him. Issues 3, 5 and 6 The appellant contends that there were contradictions in the evidence of the respondent. The lower court noted that although the trial court stated in its judgment that there were contradictions in the evidence of the respondent, the alleged contradictions were not specified. The appellant is guilty of the same omission in this appeal. He failed to specify the alleged contradictions. Out of the five methods of proving title, the respondent relied on documentary evidence. She tendered Exhibit A (purchase receipt) and Exhibit B (survey plan). She also relied on the testimony of her predecessor-in-title. It was sufficient to prove her title. I therefore resolve issues 3, 5 and 6 against the appellant. In conclusion and in concurrence with the more detailed reasons advanced in the lead judgment, I also find that this appeal lacks merit. I dismiss it accordingly. I affirm the judgment of the lower court delivered on 19/12/2002. I abide by the order on costs as contained in the lead judgment.
COUNSELS
Chief Taiwo Ajala for the Appellant. M. N. O. Olopade for the Respondent and with him: Chuma Ajaegbu.
