ENGINEER AYOADE TIAMIYU ADEYEMO v. CHIEF LASISI ADEYEMO & ORS.
(2010)LCN/3692(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of April, 2010
CA/I/179/1999
RATIO
APPEAL: WHERE SHOULD GROUNDS OF APPEAL FLOW FROM
It is also settled law that grounds of appeal must relate to and flow from the decision appealed against. They should be a challenge to the ratio of the decision. See: Egbe Vs Alhaji (1990)1 NSCC (Vol. 21) (Pt.1) 306 at 332 lines 39 – 44: Dalek Nig. Ltd. Vs OMPADEC (2007) All FWLR (364) 204 at 226 F – H. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
LAND LAW: WAYS OF PROVING TITLE TO LAND
The five ways by which a claimant may prove title to land have been settled by the Supreme Court in the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227. 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.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes anyone of them. In the instant case, the appellant relied on documentary evidence to prove his title. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
APPEAL: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE AND FINDINGS OF A TRIAL COURT
An appellate court would only interfere with the evaluation of evidence and findings of a trial court where such evaluation and findings of fact are not based on a proper and dispassionate appraisal of the evidence given in support of each party’s case or where such findings are perverse or where on the face of the record justice has not been done in the case. See: Saleh Vs B.O.N. Ltd. (2006) 6 NWLR (976) 316 at 329 – 330 H – A; Bunge Vs Gov., Rivers State (2006) 12 NWLR (995) 573 at 629 E – H. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
EVIDENCE: WHETHER THE PRESUMPTION PROVIDED FOR IN SECTION 123 OF THE EVIDENCE ACT IS A REBUTTABLE ONE
The presumption provided for in Section 123 of the Evidence Act is a rebuttable one. See: Jinadu Vs Esurombi-Aro (2005) 14 NWLR (944) 142 at 189 – 190 H – B; Adekuro Vs Ogunniya (2000) 3 NWLR (647) 151 at 164 A – D: Obawole Vs Williams (1996) 10 NWLR (477) 146; Agbonifo Vs Aiwereoba (1988) 1 NWLR (70) 325. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
JUSTICES:
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
ENGINEER AYOADE TIAMIYU ADEYEMO – Appellant(s)
AND
1. CHIEF LASISI ADEYEMO
2. MR. RASIDI ADEYEMO
3. MR. RASAKI ADEYEMO
4. MR. YEKINI LADIMEJI ADEYEMO
5. ALHAJI YISAU LANIPEKUN ADEYEMO
6. MR. SAKA ADEYEMO
7. MR. R. LADEJI ADEYEMO
8. MRS. SILIFATU LASISI ADEYEMO
9. MRS. SARIYU LASISI ADEYEMO
10. MADAM VICTORIA AKANJI
11. MADAM RALIATU LASISI ADEYEMO
12 MR. ASIMIYU ADEYEMO – Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): This is an appeal and cross-appeal against the judgment of the High Court of Oyo State sitting at Ibadan delivered on13th October, 1998 dismissing all the plaintiff’s/appellant’s claims.
By a writ of summons dated 29/8/91 filed before the High Court of Oyo State, Ibadan Judicial Division, the appellant herein (as plaintiff) sought the following reliefs against the respondents herein (as defendants) jointly and severally:
1. Declaration of title to Statutory Right of Occupancy to that piece or parcel of land shown on plan no. OK 940 of 13th January, 1978 drawn by K.O. Ishola attached to Deed of Conveyance dated 1st March, 1978 and registered as No. 5 at page 5 Volume 2269 of the Lands Registry in the office at Ibadan and thereon EDGED RED.
2. Two Thousand Naira (N2, 000:00) general damages for acts of trespass committed and still being committed by the defendant (sic) their servants and agents on the Plaintiff’s land.
3. An order of perpetual injunction restraining the defendants by themselves, their servants, agents, privies and or anyone claiming through them from committing further acts of trespass by the said land.
The parties duly filed and exchanged pleadings and the matter proceeded to trial. The appellant testified on his own behalf and called four other witnesses. The 2nd respondent and one other witness testified on behalf of the defendants.
The parties tendered exhibits in support of their cases.
It was the appellant’s case before the trial court that the land in dispute originally belonged to one Akinsoji of Akobo, Ibadan, by settlement many years ago. Akinsoji made a grant of the land to Adesina, the appellant’s grandfather about one hundred years ago. Sometime in 1930, one Olujinle challenged Adesina’s title to the land. The dispute was resolved in Adesina’s favour and he remained in undisturbed possession thereof until his death. Adesina’s eldest son, Adewoye predeceased him. Thus after his death, his son, Adeyemo Adesina became the Head (Mogaji) of the family. Adeyemo Adesina was the appellant’s father.
According to the appellant his father sold the land in dispute to one S.B.O. Folayan. The size of the land sold to Folayan was 25.05 acres. It was evidenced by a deed of conveyance dated 1st March, 1978 (tendered as Exhibit A in the proceedings) and shown on the survey plan No. OK 940 dated 13/1/78 attached to Exhibit A. on 21st March, 1978 the appellant purchased 20.05 out of the 25.05 acres sold to Folayan from him under customary law in the presence of witnesses. Folayan gave him a receipt, which was admitted in evidence as Exhibit B. He exercised acts of ownership on the said land including preparing a layout plan, which he named after his late father and selling portions to individuals. It was the appellant’s testimony before the trial court that the respondents are all his relations and that he instituted the action before the lower court when he noticed them trespassing on his land between 1988 – 1990 and they refused to heed all entreaties to leave the land. The case of the respondents was that during the time that Adesina’s title to the land was being challenged by Olujinle, it was the appellant’s father, Adeyemo Adesina who pursued the case at his own expense to its ultimate successful conclusion, as their grandfather died during the pendency of the suit. They contend that in appreciation of the role played by Adeyemo in that case, the entire Adesina family decided to divide the family land into two and gave Adeyemo half of the land and reserved the rest for the use of the Adesina family. That Adeyemo decided to distribute his land among his children and instructed the appellant, who worked as a Senior Official at the Oyo State Housing Corporation to prepare a layout of the land for the purpose, which the appellant duly produced. That Adeyemo died before he could share the land among his children. According to the respondents, after Adeyemo’s death a large portion of the Adeyemo family compound was demolished to make way for Oranyan/Beyerunka/Ogboriefon Street, which was under construction at the time. They stated that in order to resettle the displaced persons and to carry out Adeyemo’s wishes, the 1st respondent, Lasisi Adesina, as the Mogaji of the family decided to give one plot of land each to Adeyemo’s children.
Lasisi Adesina and the appellant are brothers of full blood. It is the respondent’s contention that it was the layout plan produced by the appellant in compliance with the late Adeyemo’s instructions that was used to share the plots.
They contend that the land occupied by them does not belong to the appellant but is Adesina family land. That there was no sale to Folayan and that the thumb impression of Adeyemo on Exhibit A was not his because in his lifetime he signed documents in his handwriting and did not thumb print. They contended that Folayan was an indigent man and could not afford to buy the land as alleged by the appellant.
They contended, inter alia that the appellant had sold off various portions of the land and could not therefore be entitled to the total area of land claimed.
At the conclusion of the trial learned counsel for the parties addressed the court. In a reserved judgment delivered on 13th October, 1998 the learned trial Judge held at page 145 lines 22 – 32:
“This court is of the VIEW that the plaintiff had established that Mr. S.B.O. Folayan bought from and got conveyed to him by Adesina Family 25.05 acres of their family land at Adeoya Village, Olorunda Road, Ibadan under the received English Law, whilst he (the plaintiff) bought and possessed from Mr. S.B.0. Folayan 20.05 acres of land out of the 25.05 acres of land he, Mr. Folayan bought from Adesina Family at Adeoya Village, Olorunda Road, Ibadan under customary law.”
He continued at page 147 lines 22 – 37:
“Without mincing words, Exhibit A and plan no. OK 940 of 13/1/78 attached to it both show that a total of 25.05 acres of Adesina family land at Adeoya Village/Ibadan was conveyed to Mr.S.B.O. Folayan. However Exhibit 8 shows that only 20.05 acres of the said 25.05 acres that was bought by Mr. Folayan was sold by Mr. Folayan to the plaintiff. It will therefore be wrong for the plaintiff to request this court to make a declaration of title in his favour to the totality of the land that Mr. Folayan got conveyed to him vide Exhibit A, as through Exhibit 8 the plaintiff did not buy the totality of 25.05 acres from Mr. Folayan.”
After considering the claims for damages for trespass and injunction, he dismissed all the appellant’s claims. The appellant was dissatisfied with the decision and filed a notice of appeal dated 10/11/08 containing 5 grounds of appeal.
The respondents were also dissatisfied with the part of the judgment wherein the court held that the appellant proved his derivative title from Adesina Family’ through S.B.O. Folayan and filed a notice of cross-appeal dated 31st December 1998 containing 4 grounds of appeal.
In compliance with the Rules of this court, the parties filed and exchanged their respective briefs of argument. At the hearing of the appeal on 10/2/2010, A.A.L. Okunade, Esq., adopted and relied on the appellant’s brief dated 8/11/99 and filed on 9/11/99. He also adopted and relied on the appellant’s reply brief and cross-respondent’s brief dated and filed on 23/7/07 pursuant to order of this court made on 9/7/07. Mr. Oluwole Aina adopted and relied on the respondents’ brief and cross-appellants’ brief dated 17/10/2000, which was deemed filed on 26/10/2000.
The appellant formulated four issues for determination:
1. Whether the learned trial Judge was right in refusing ‘to grant declaration of title to statutory right of occupancy’ to the plaintiff/applicant in respect of the land in dispute. (Grounds 1 & 5).
2. Whether the learned trial Judge was right in refusing to grant declaration of title to statutory right of occupancy in respect of 20.05 acres which he found the plaintiff/applicant to be entitled to. (Ground 2).
3. Whether the learned trial Judge was right in dismissing the plaintiff/appellant’s case for trespass against the defendants/respondents. (Ground 3).
4. Whether the learned trial Judge was right in refusing to grant an order for perpetual injunction against the defendants/respondents in. respect of the land in dispute when the 2nd Defendant Witness admitted erecting the building on part of the land in dispute. (Ground 4).
The respondents formulated six issues for determination from the appellant’s grounds of appeal and from the cross-appeal as follows:
1. Whether in view of the admission of the appellant and the findings of the learned trial Judge that none of the respondents was on the land claimed by the appellant, the claims of the appellant in the lower court were still competent as against the respondents. (Ground 4 of the cross-appeal).
2. Whether the learned trial Judge was right in refusing to grant declaration of title to statutory right of occupancy to the plaintiff/appellant in respect of the land in dispute. (Ground 3 of the cross-appeal).
3. Whether the learned trial Judge was right in refusing to grant declaration of title to statutory right of occupancy in respect of the unidentified 20.05 acres which he held that the plaintiff/appellant bought from his brother-in-law. (Ground 2 of the cross-appeal).
4. Whether on a calm evaluation of the totality of the evidence the learned trial Judge was right in holding that the appellant’s derivative title from Adesina Family through S.B.O. Folayan was proved. (Ground 1 of the cross-appeal).
5. Whether the learned trial Judge was right in dismissing the plaintiff/appellant’s case for trespass against the defendants/respondents. (Ground 3 of the main appeal).
6. Whether the learned trial Judge was right in refusing to grant an order for perpetual injunction against the defendants/respondents in respect of the land in dispute after holding that the claim for trespass failed. (Ground 4 of the main appeal).
From a careful examination of the issues formulated by the parties, the respondents’ issues 2 and 3 cover the appellant’s issues 1 and 2. They overlap as they also cover grounds 2 and 3 of the cross-appeal. The respondent’s issue 5 covers the appellant’s issue 3 while the respondents’ issue 6 covers the appellant’s issue 4. In other words, in respect of the main appeal, the respondents have formulated the same issues for determination although differently worded. In the circumstances, I shall adopt the issues as formulated by the appellant for the resolution of the issues in controversy in this appeal. The appellant argued issues 1 and 2 together.
Issues 1 & 2
Whether the learned trial Judge was right in refusing to grant declaration of title to statutory right of occupancy to the plaintiff/applicant in respect of the land in dispute AND whether the learned trial Judge was right in refusing to grant declaration of title to statutory right of occupancy in respect of 20.05 acres which he found the plaintiff/applicant to be entitled to.
In arguing these issues, learned counsel for the appellant referred to the portion of the judgment at page 144 lines 3- 33 of the record reproduced earlier in this judgment and submitted that the learned trial Judge having accepted the facts as pleaded by the appellant and the evidence led in respect thereof, was in error when he dismissed his claims. He relied on the case of Mosalewa Thomas Vs Preston Holder 12 WACA 78 at 80 in support of his submission that once the appellant had traced his title to one whose title has been established it was not necessary for him to prove acts of ownership and the onus was on the defendant to show that his own possession is of such a nature as to oust that of the original owner. He also relied on: Odofin Vs Ayoola (1984) 11 SC 72 at 116 – 117. He submitted that having found as a fact that what Folayan sold to the appellant was 20.05 acres and not 25.05 acres, the learned trial Judge was in error to have dismissed the whole claim instead of awarding 20.05 acres to the appellant being the area successfully proved. He referred to: Imah Vs Okogbe (1993) 12 SCNJ 57 at 74; Sogunle Vs Akerele (1967) NMLR 58; Araba Vs Asaniu (1980) 6 – 7 SC 74 at 85.
It was argued on behalf of the respondents that the appellant did not appeal against the finding of the lower court that a declaration could not be made in his favour because he claimed the entirety of the 25.05 acres that Folayan-purchased from the Adesina family whereas by his evidence he established that he only purchased 20.05 acres, which portion of land was not specifically identified. Learned counsel argued that the reasoning and conclusion of the lower court in this regard remains valid and subsisting. He relied on: Sule Vs Nigerian Cotton Board (1985) 6 SC 62 at 65 & 75. He urged the court to strike out grounds 2 and 3 of the notice of appeal and issues two and three formulated from those grounds.
Alternatively, learned counsel argued that the appellant’s claim before the trial court was tied to a conveyance and a survey plan no. OK 940 of 13/1/78, which belongs to the appellant’s vendor, who was not a party to the suit. Learned counsel argued that the learned trial Judge was correct in his holding that in so far as the appellant was not claiming the entire land sold to Folayan, a declaration could not be made in his favour without the precise boundaries of the portion sold to him being known. He relied on: Elias Vs Omo-Bare (1982) SC 25 at 37 – 38. He contended that no declaration could have been made in the appellant’s favour because the portion of the land being claimed by the him was even more uncertain having regard to his evidence that he had sold part of the land to various purchasers and his admission that the plots of land occupied by the respondents did not form part of his land.
With regard to the appellant’s contention that the learned trial Judge ought to have made a declaration in his favour for the smaller portion of 20.05 acres which he had proved, learned counsel conceded that as a general principle of law a court is entitled to award to a party less than what is claimed.
He argued that in the circumstances of this case, the appellant failed to apply the general law to the facts of the case. He contended that the court could not have made a declaration in the appellant’s favour for 20.05. acres without amending the claim and the survey plan and excising the portion belonging to Folayan, the owners of the completed and uncompleted buildings on the land, and the numerous persons to whom the appellant had sold land. He argued that the court could not do this without hearing the parties. He contended that if the portions sold to other persons were taken into consideration, the appellant would have even less than the 20.05. acres claimed. He argued that the case ought to have been struck out or dismissed for being improperly. constituted and/or incompetent.
In his reply brief, learned counsel for the Appellant referred to grounds 1 and 2 of the notice of appeal at pages 154 and 155 of the record and submitted that the appellant properly appealed against the portion of the judgment referred to by the respondent’s counsel. He argued that the case of Sule Vs Nigerian Cotton Board (supra) is not applicable in the circumstances of this appeal and urged the court to discountenance the submission in this regard.
Learned counsel submitted that the trial court found as a fact that Folayan bought 25.05 acres from the Adesina family and that Folayan sold 20.05 acres to the appellant. He contended that the 20.05 acres sold to the appellant is ascertainable through Exhibit A and Plan No. OK 940, which the lower court held to be his vendor’s root of title. He submitted that the appellant is entitled to rely on his vendor’s title. He submitted that the respondents did not file a counter plan. He submitted that the argument of the respondents that the area of land claimed was uncertain because the appellant had sold some parcels of land to some individuals, is a new issue not raised at the trial court and in respect of which no finding was made by the learned trial Judge. He submitted that parties are bound by their pleadings. He referred to: Amodu Latunde & Anor. Vs Bello A.D. Lajinfin (1989) 5 SCNJ 59 and Kode Vs Yusuf (2001) 5 NSCQR 376 at 402. He argued that notwithstanding the fact that the appellant stated under cross examination that he did not know the number of people to whom he had sold land, the law is that cross-examination must relate to points in respect of which the parties have joined issues. He referred to: Atolagbe Vs Shorun (1985) 1 NWLR 360 at 367 – 369; Adimora Vs Ajufo & Ors. (1988) 6 SCNJ 18 at 28. He noted that there is no ground of appeal in the appellant’s notice of appeal in respect of this issue. He submitted that although the cross-appellants formulated a ground of appeal on the issue, it does not arise from the judgment appealed against. He relied on: Nfor Vs Ashaka Cement Co. Ltd. (1994) 1 NWLR (319) 222; Messrs NV Scheep Vaatmij Unidor Wille Mstad Vs The MV- ARAZ & Anor. (2001) FWLR 543 at 583. He urged the court to dismiss the cross-appeal on this issue.
Before considering the merits of the appeal and cross appeal, it is necessary to observe that the respondents argued the cross-appeal along with the main appeal, rather than presenting separate arguments in respect thereof. In the course of resolving issues in the main appeal, it is likely that some of the issues raised in the cross-appeal would also be resolved.
I have considered the contention of learned counsel for the respondents that there is no ground of appeal against the finding of the lower court that the appellant was not entitled to a declaration of title in respect of the 20.05 acres he claimed because he relied on his vendor’s (Folayan’s) title documents which cover the entire 25.05 acres sold to Folayan by the Adesina Family. The submission is misconceived, as grounds 1 and 2 of the notice of appeal specifically challenge that aspect of the judgment. The submission in this regard is accordingly discountenanced.
It is also settled law that grounds of appeal must relate to and flow from the decision appealed against. They should be a challenge to the ratio of the decision. See: Egbe Vs Alhaji (1990)1 NSCC (Vol. 21) (Pt.1) 306 at 332 lines 39 – 44: Dalek Nig. Ltd. Vs OMPADEC (2007) All FWLR (364) 204 at 226 F – H. In the course of his final address at page 139 of the record, learned counsel for the respondents submitted that as the appellant had testified that only two of the defendants were on his land he had no case against the ten remaining defendants. Learned counsel for the respondents/cross-appellants has argued that the claim against those defendants ought to have been dismissed. I have examined the record carefully and find that the court did not make any pronouncement on the issue. In the circumstances ground 4 of the cross-appeal and issue 1 formulated by the respondents/cross-appellants from the said ground are incompetent and accordingly struck out.
The main issue for determination in respect of issues 1 and 2 is whether the learned trial Judge erred in not making a declaration of title to statutory right of occupancy in favour of the appellant in respect of the 20.05 acres of land situate at Adeoya Village, Olorunda Road, Ibadan found to have been sold to him by S.B.O. Folayan out of the entire 25.05 acres purchased by Folayan from the Adesina Family.
For ease of reference and at the risk of repetition I shall reproduce paragraph 28(a) of the Amended Statement of Claim at pages 51 – 52 of the record. It reads thus:
“28. Where before the plaintiff claims jointly and severally against all the defendants as follows:
(a) Declaration of title to Statutory Right of Occupancy to that piece or parcel of land shown on plan no. OK 940 of 13th January 1978 drawn by K.O. Ishola attached to Deed of Conveyance dated 1st March, 1978 and registered as No. 5 at page 5 Volume 2269 of the Lands Registry in the office at Ibadan and thereon EDGED RED.
(Emphasis supplied)
The five ways by which a claimant may prove title to land have been settled by the Supreme Court in the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227. 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.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes anyone of them. In the instant case, the appellant relied on documentary evidence to prove his title.
It is abundantly clear from the pleading above that the appellant’s (plaintiff’s claim) was hinged specifically on the land shown on plan no. OK 940 of 13th January, 1978 attached to the Deed of Conveyance dated 1st March, 1978. The aforesaid deed of conveyance was tendered and admitted in evidence as Exhibit A. A careful perusal of the document reveals that it is indeed the deed of conveyance executed in favour of the appellant’s vendor, S.B.O. Folayan by members of the Adesina Family. The evidence of the appellant before the trial court was that he purchased 20.05 acres of land out of the 25.05 acres referred to in Exhibit A and shown on the plan annexed thereto.
In effect, what the appellant was seeking from the trial court by paragraph 28 (a) of the Amended Statement of Claim was a declaration of title in respect of the entire land conveyed in Exhibit A. Such a claim is clearly at variance with the appellant’s pleading and evidence that he only purchased 20.05 acres out of the 25.05 acres belonging to Folayan.
The law is settled that in an action for declaration of title to land the onus is on the claimant to prove his title. He must succeed on the strength of his own case and not on the weakness of the defence, if any. See: Onwugbufor Vs Okoye (1996) 1 NWLR (424) 252; Shittu Vs Fashawe (2005) 14 NWLR (946) 671. He must show with certainty the land to which his claim relates, failing which his claim would fail. See: Aigbohai & Anr. Vs Aifuwa & Ors. (2006) 6 NWLR (976) 270 @ 295 H & 311 A – B; Epi Vs Aigbedion (1972) 10 SC 53; Bello VS Fayose (1999) 11 NWLR (627) 510. It is not in dispute that the lower court found as proved the sale of 20.05 acres of land to the appellant by Folayan. The appellant tendered Exhibit B, an agreement dated 21/3/78 with the photocopy of a plan no. OK 940A attached thereto as evidence of receipt of the purchase price of N17, 000.00 from him by Folayan. Although he pleaded the plan and relied on the said receipt, he did not make it the basis of his claim for a declaration of title. He did not tender the original of plan no. OK 940A. Rather he relied on his vendor’s conveyance, which relates to a larger area of land than that which he purchased.
The court has no duty to go outside the claim as put before it by the appellant in a bid to make a declaration in his favour. In so far as he based his claim on the entire parcel of land shown in survey plan no. OK 940 annexed to Exhibit A, in spite of his evidence that he bought only a portion of it, he had failed to prove that he was entitled to a declaration of title to a right of statutory occupancy as claimed. I agree with the view expressed by the learned trial Judge at pages 147 line 22 to page 149 line 13 of the record that while it is good law that the appellant was entitled to rely on his vendor’s title to establish the root of his title, in the instant case he could not rely on the conveyance to his vendor of a larger parcel of land to prove his entitlement to a declaration in respect of a smaller portion of that land. He ought to have based his claim on the survey plan showing the identity and features of the portion purchased by him. Exhibit E, plan no. KESH/Y/19997A dated 29/6/94 is stated on the face of it to be based on Plan No. 940A made by Surveyor. K.O. Ishola on 4/3/76. Plan no. 940A was not tendered. An appellate court would only interfere with the evaluation of evidence and findings of a trial court where such evaluation and findings of fact are not based on a proper and dispassionate appraisal of the evidence given in support of each party’s case or where such findings are perverse or where on the face of the record justice has not been done in the case. See: Saleh Vs B.O.N. Ltd. (2006) 6 NWLR (976) 316 at 329 – 330 H – A; Bunge Vs Gov., Rivers State (2006) 12 NWLR (995) 573 at 629 E – H. The appellant has not shown that the finding of the learned trial Judge in respect of this issue is perverse. This issue is accordingly resolved against the appellant.
Issue 3
Whether the learned trial Judge was right in dismissing the plaintiff/appellant’s case for trespass against the defendants/respondents.
In support of this issue, learned counsel for the appellant referred to various portions of the record wherein the appellant testified inter alia:
a. that he sued the respondents because they went on his land claiming that it belonged to his father after he had sold it;
b. that he noticed the respondents on his land between 1988 and 1989 and that he sued them when they failed to quit;
c. that the 1st respondent was sued because he occupies part of the land in dispute;
d. that the 2nd respondent confirmed that he not only entered the land in dispute but erected a building thereon;
e. that the 2nd respondent testified that the 1st respondent took all of them to the land in dispute.
He submitted that the learned trial Judge having accepted that the late S.B.O. Folayan sold 20.05 acres to the appellant and having accepted that the land sold to Folayan was Adesina Family land, ought to have found the respondents liable in trespass. He submitted that mere entry into another person’s land constitutes trespass since trespass is an injury to possession. He relied on: Pius Amakor Vs Benedict Obiefuna (1974) 1 NMLR 331 at 335 and 336; Ezekiel Ogundipe Vs Job Awe & Ors. (1988) 1 SCNJ 84 at 85 & 88.
In reaction to this issue, learned counsel for the respondents agreed that the appellant led evidence as referred to above as to why he sued the respondents. He was of the view that the finding of the learned trial Judge that the appellant bought 20.05 acres from Folayan was erroneous.
However he submitted the appellant’s testimony at page 105 lines 20 – 24 of the record is very crucial to the determination of this issue. The appellant testified as follows:
“No 1 Each of the twelve defendants is not occupying a plot on the layout. Rasidi and Yekinni [2nd and 4th respondents] are the ones occupying plots on the land now.
They have houses on the land in which they live. I am not sure of the number of the plot Rasidi is occupying.”
He submitted that Rasidi, who testified as PW2 did not admit that he was on the appellant’s land. He submitted that his testimony was consistent with the respondents’ case, as he testified that he occupies Plot 1 Block K on Adeyemo’s land and not on Adesina land as claimed by the appellant. He submitted that although the appellant tendered his dispute plan (Exhibit E) through his surveyor (PW3) it did not show any Block K or Plot 1 thereon. He noted that PW3 did not know the names of the owners of the completed and uncompleted buildings shown on the plan. Learned counsel for the respondents reproduced the findings of the learned trial Judge at page 149 line 22 to page 151 line 11 and submitted that the said findings are unassailable. He submitted further that by Sections 46 and 146 of the Evidence Act, there is a presumption in law that the respondents own the land in respect of which they are in possession and that it is for the person who makes a claim for trespass to show that he has a better title, which the appellant failed to do. He relied on: Amakor Vs Obiefuna (supra). He submitted that the learned trial Judge was right to dismiss the appellant’s claim for trespass.
The law is settled that a claim in trespass is based entirely on possession of land and not necessarily ownership of the land. Trespass to land is actionable by the person in possession. See: Amakor Vs Obiefuna (supra); Okolo Vs Uzoka (1978) 4 SC 77 and Dokubo Vs Omoni (1999) 8 NWLR (616) 647 at 660 cited in Ansa Vs Ishie (2005) 15 NWLR (948) 210 at 229 C – D. To succeed the claimant must prove the exact area of the land in his possession trespassed upon. See: Ansa Vs Ishie (supra) at 229 E; also Adepoju Vs Oke (1999) 3 NWLR (594) 154; Ojumo Vs Ibrahim (1999) 12 NWLR (631) 415.
The appellant testified under cross-examination at page 104 line 30 to page 105 line 7 of the record that in 1976 he caused a layout of the land in dispute to be made, which was named Alhaji S.A. Adeyemo Family Estate Layout. The said layout was not tendered in evidence. He stated that his father later sold the land to Folayan who later sold it to him. He however stated that of the twelve respondents, only Rasidi and Yekini (2nd and 4th respondents) occupied plots on the land. It follows therefore that he could only maintain his claim for trespass against Rasidi and Yekini. He also had a duty to prove the exact area of land trespassed upon by them. The appellant tendered survey plan No. KESH/Y/19997A of 29/5/94 through Alhaji Yekinni Olayiwola Keshimo, licensed surveyor who testified as PW3. The survey plan was admitted in evidence as Exhibit E. It was said to show the land belonging to the appellant. It is instructive to note that there is nothing on Exhibit E showing the areas allegedly trespassed upon by the 2nd & 4th Respondents or any other person. At pages 149- 151 of the record, the learned trial Judge held as follows:
“(viii) that in respect of the second leg of the plaintiff’s claim/the plaintiff had failed to establish any act or acts of trespass the defendants committed on his land for which general damages of two thousand naira should be paid to him.
In his oral evidence in the witness box the plaintiff said that each of the defendants was not occupying a plot in his layout. He said only Rasidi (the 2nd defendant and 2nd DW) and Yekinni (the 4th defendant) were .the ones occupying plots on his land. He said they had houses in which they lived.
He said further:
“I am not sure of the number of the plot Rasidi is occupying.”
It is pertinent to mention that the plaintiff failed to mention the number of the plot Yekinni too is occupying… Also in Exhibit F [E] he failed to establish what (sic) the defendant was trespassing on any particular plot of land on his plan. The 3rd PW, the surveyor, who prepared Exhibit E in the witness box testified under cross examination:
“The names of the plot owners of F/C and U/C on Exhibit E were not supplied to me.”
In essence Exhibit E has failed to show that any of the twelve defendants trespassed on the plaintiffs land at Adeoya Village, Ibadan. It can however be said that but the 3rd PW claims to have built [his] house on plot 1 Block K on Adeyemos family (sic).
Is that not an act of trespass?. One hastens to mention that Exhibit E prepared by the plaintiffs surveyor contains no Block K therefore the 2nd DW cannot be said to have trespassed on a non-existing plot on Exhibit E”.
I am of the respectful view that the above findings of the learned trial Judge represent. a correct evaluation of the evidence before the court. The appellant was unable to prove that any of the respondents trespassed on any of the plots of land shown on Exhibit E. This issue is also resolved against the appellant.
Issue 4
Whether the learned trial Judge was right in refusing to grant an order for perpetual injunction against the defendants/respondents in respect of the land in dispute when the rd defendant’s witness admitted erecting the building on part of the land in dispute.
Learned counsel for the appellant submitted that having found as a fact that Folayan sold 20.05 acres of land to the appellant, the learned trial Judge ought to have granted an order of perpetual injunction against all the respondents who admitted going on the land in dispute. He relied on: Green Vs Green (1987) 7 SCNJ 255 at 257 & 258.
In reply to this submission, learned counsel for the respondents submitted that where the claimant has not succeeded in his claim for trespass an injunction would not be granted in his favour. He relied on: Olayode Vs Oso (1969) All NLR 271 at 275; Oladimeji Vs Oshode (1969) All NLR 417.
Having resolved issue 3 against the appellant, issue 4 which is predicated thereon must also fail. This issue is accordingly resolved against the appellant.
In the final analysis, the appeal fails and it is accordingly dismissed.
Cross-Appeal
I had observed earlier in this judgment that some of the issues raised in the cross-appeal had been argued in response to submissions in respect of the main appeal. Having struck out the respondents’/cross-appellants’ issue 1 for being distilled from a ground of appeal that did not arise from the judgment of the court, the only issue for determination in the cross-appeal is the respondents’/cross-appellants’ issue 4. It reads thus:
Whether on a calm evaluation of the totality of the evidence the learned trial Judge was right in holding that the appellant’s derivative title From Adesina Family through S.B.0. Folayan was proved.
Five aspects of the decision appealed against were challenged under issue 4.
The first aspect of the finding of the lower court challenged by the cross-appellant is in respect of Exhibit A.
Learned counsel for the cross-appellants submitted that Exhibit A relied upon by the cross-respondent as the conveyance to his vendor by the Adesina Family bears the thumb print of Chief S.A. Adeyemo and that the cross-respondent also tendered Exhibit C to show that in 1956 Chief S.A. Adeyemo thumb printed a declaration of age in respect of his date of birth. He submitted that the cross-appellants contended on the other hand that during his lifetime Chief Adeyemo did not thumb print documents but used to sign his name as S.A Adeyemo. They relied on his signature on several pages of Volume 2 of the civil proceedings record book of the Olorunda Grade C customary court, of which Chief S.A. Adeyemo was the President. The record book was admitted in evidence as Exhibit F. It contains proceedings for the years 1967 to 1968. Learned Counsel argued that the cross-respondent ought to have called any of the members of the Adesina family who co-executed Exhibit A, or their children to testify. He also submitted that he failed to call any witness to authenticate S.A. Adeyemo’s thumb impression and contended that there is nothing on Exhibit A to indicate whether the impression was of the left or right thumb.
On the second issue, learned Counsel submitted that from the evidence before the court, S.B.O. Folayan was not in a financial position to have purchased land for N10, 000:00. He noted that the cross-respondent testified that Folayan bought the land on 1/3/78 when he was the General Manager of Caxton Press; that he subsequently retired, developed the land, built a bungalow thereon and subsequently sold a portion of the land to him on 21/3/78 for N17, 000.00 within a period of 21 days. He submitted that while PW4 who accompanied the cross-respondent to Folayan’s house on 21/3/78 to purchase the land corroborated his story, their evidence was contradicted by PW5, Folayan’s junior brother, a motor mechanic who testified that he and Folayan lived together before he died (five years prior to the date he testified) and that he (Folayan) lived with him (PW5) after he left Caxton Press when he was building his house. It is the contention of the cross-appellants that if Folayan died some time in 1993 (since PWS testified on 18/3/98) it meant that he had been living with PW5 before and after leaving Caxton Press. Learned counsel argued that this evidence tallies with the evidence of the cross-appellants that Folayan, an elderly relation of the cross-respondent’s wife, was an indigent one-legged security guard, who never earned more than N300 per month throughout his working life. He referred to the evidence of DW2 who testified that he and Folayan at one time lived with the cross-respondent and that the said Folayan used to wash the cross-respondent’s car. Learned counsel argued that the preponderance of evidence on this issue weighed in the cross-appellant’s favour.
The third issue raised by the cross-appellants is that while the cross-respondent contends that at all material times prior to the sale there was one undivided portion of land and that it belonged to the Adesina family, the contention of the cross appellants is that part of the Adesina family land was granted exclusively to Adeyemo after the litigation with Olujinle; that before his death Adeyemo had manifested an intention to allocate plots of land to his children and commissioned the cross-respondent to produce a survey plan and layout plan of the land for the purpose. They contend that he carried out the instruction but manipulated it to suit his own purpose. Learned counsel argued that the evidence of the cross-respondent to the effect that he commissioned one Mr. Ishola to prepare a survey plan of the land in 1971 and that of his own volition he made a layout and submitted it for approval sometime in 1976, which he named S.A. Adeyemo Family Estate Layout “in order to boost the ego of my father” supports the cross-appellants’ case.
In respect of the fourth issue, it is contended on behalf of the cross-appellants that Folayan was used by the appellant to trick them, which according to them explains why the cross-respondent sought a declaration of title in respect of the entire 25.05 acres of land allegedly bought by Folayan and the fact that Folayan’s brother, PW5 supported his scheme.
On the fifth issue, learned counsel submitted that the fact that the cross-respondent was unable to link the cross-appellants to any acts of trespass on the land he claimed to have bought from Folayan supports their contention that if he bought any land at all it could only have been Adesina family land and not Adeyemo family land. They contend that the cross-respondent did not buy any land at all from the Adesina family or that he did not know the extent, location and identity of the land that Folayan bought, part of which was sold to him.
They urged the court to hold that the sale from the Adesina family to Folayan not having been established, the cross respondent’s case ought not to succeed. See: Thomas Vs Holder 12 WACA 78; Mogaji Vs Cadbury (1985) 7 SC (Pt.1) 59 @ 151 & 158.
In reply to these submissions, learned counsel for the cross-respondent argued that the findings of the lower court are not perverse as they are supported by the evidence before it. He submitted that the learned trial Judge found as a fact that Exhibit A was valid, the fact that Chief S.A Adeyemo thumb printed notwithstanding. He noted that Exhibit C, which Chief Adeyemo thumb printed in 1956 was admitted in evidence without objection. He argued that the cross respondent having tendered Exhibit A, which was his vendor’s root of title had discharged the onus on him in view of the presumption of regularity in respect of Exhibit A. He submitted that the onus shifted to the respondent to rebut the presumption. He noted that DW2 testified during his examination in chief that Raimi Adesina, one of the signatories to Exhibit A was alive at the time he testified. He submitted that the cross-appellants ought to have called him to testify and rebut the presumption. He urged the court to invoke the provisions of Section 149 (d) of the Evidence Act against them in this regard.
He argued that the fact that Folayan sold the land to the cross-respondent 21 days after he bought it from the Adesina Family is immaterial having regard to the finding of the lower court that he validly bought the land from the Adesina family through Exhibit A. He submitted that the evidence of the cross respondent’s witnesses was consistent with regard to the fact that Folayan sold the land to him under customary law. He submitted that the learned trial Judge was right to believe them. He also submitted that the finding of the learned trial Judge that Adeyemo had no separate land was correct and supported by the evidence before the court. He submitted further that the cross-appellants did not file a counter plan to show the portion of Adeyemo’s land, which they occupy. He urged the court not to disturb the finding of the lower court. He relied on: Mark Ugbo & Ors. Vs Anthony Aburime (1994) 9 SCNJ 23 at 38; Atolagbe Vs Shorun (1985) 1 NWLR (5) 360 at 376; Ebba Vs Ogodo (1984) 1 SCNLR (372); Fagbenro Vs Arobadi (2006) All. FWLR (310) 1575 at 1595.
In a claim for declaration of title, the onus is on the claimant to establish his case upon a preponderance of evidence or upon the balance of probabilities. He must rely on the strength of his own case and not the weakness of the defence. He may, however, take advantage of the defendant’s evidence where it supports his case. See: Onwugbufor Vs Okoye (1996) 1 NWLR (424) 252; Shittu Vs Fashawe (2005) 14 NWLR (946) 671; Onisaodu Vs Elwuju & Anr. (2006) 7 SCNJ 280; Ajiboye Vs Ishola (2006) 6 SCNJ 180.
By virtue of Section 137 (1) & (2) of the Evidence Act, the burden of first proving the existence or nonexistence of a fact lies on the party against whom the judgment of the court would be given if no further evidence were produced on either side, regard being had to any presumptions that may arise on the pleadings. Where the party adduces evidence, which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom the judgment of the court would be given if no more evidence was adduced; and so on successively until all the issues in the pleadings have been dealt with. It follows that while the general burden of proof in civil cases is on the claimant, the burden of proof of particular facts shifts from side to side throughout the proceedings.
In the instant case, in order to establish his title, the cross-respondent relied on Exhibit A, his vendor’s root of title. Exhibit A is a deed of conveyance dated. 1st March, 1978 between (1) Chief Sunmonu Adeyemo Adesina (Mogaji of the family), (2) Tijani Ajadi Adesina, (3) Raimi Akano Adesina and (4) Lamidi Adisa Adesina representatives of Adesina family of E2/60, Ogboriefon Quarters, Oranyan Area, Ibadan as vendors AND Mr. Simeon Bamidele Olusanya Folayan of Shasha Quarters, Ojoo, Oyo Road, Ibadan as purchaser in respect of the piece or parcel of land situate, lying and being at Adeoya Village, Olorunda Road, Ibadan measuring 25.05 acres and verged red in Plan no. OK 940 attached thereto. The deed was thumb printed by all the vendors and signed by the purchaser in the presence of a chief magistrate. It was tendered in evidence on 12/3/98 by the cross-respondent. The document having been executed on 1/3/78, was twenty years old at the time it was admitted in evidence. Section 123 of the Evidence Act provides:
“Where any document purporting or proved to be twenty years old is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that persons handwriting and that it was duly executed and attested by the persons by whom it purports to be executed and attested.”
From the above provision of the Evidence Act, there is a presumption of genuineness in respect of Exhibit A. The learned trial Judge observed this fact at page 146 of the record when he stated thus:
“It is now too late in the day to challenge the authenticity of Exhibit A as it is properly covered by Section 123 of the Evidence Act.”
The presumption provided for in Section 123 of the Evidence Act is a rebuttable one. See: Jinadu Vs Esurombi-Aro (2005) 14 NWLR (944) 142 at 189 – 190 H – B; Adekuro Vs Ogunniya (2000) 3 NWLR (647) 151 at 164 A – D: Obawole Vs Williams (1996) 10 NWLR (477) 146; Agbonifo Vs Aiwereoba (1988) 1 NWLR (70) 325. In the instant case, there is evidence that Exhibit A was produced from proper custody and that it was twenty years old. The onus was on the cross-appellants to rebut it. The cross-appellants rely on the fact that Chief S.A Adeyemo, as President of the Olorunda Grade C customary court used to append his signature to the proceedings as confirmed by the record of proceedings, Exhibit F. However, they were unable to discredit Exhibit C, the declaration of age sworn to by the said Chief Adeyemo on 24/10/56 in respect of the cross-respondent’s date of birth to which he affixed his thumb impression. What was therefore established before the court was that at different times Chief S.A. Adeyemo had both signed and thumb printed documents.
The Supreme Court held in the case of Otitoju Vs Gov. Ondo State ((1994) 4 NWLR (340) 518 at 529 that there is nothing in law that prevents a literate person from affixing his thumb impression to a document. The court also held that the fact that one is able to write or sign one’s name on a document does not mean that one is literate. Thus, the fact that Chief Adeyemo signed certain documents with his signature does not rule out the fact that he affixed his thumb impression on others.
Another consideration is the fact that Exhibit A was executed before a magistrate. By Section 114 of the Evidence Act the execution before a magistrate raises the presumption of regularity. See: Tumo Vs Murana (2000) 12 NWLR (681) 370 at 389 . Again the onus was on the cross-appellants to rebut the presumption. They failed to do so. Furthermore in the course of his evidence in chief on 24/4/98 at page 115 line 33 of the record, DW2, Rasidi Adeyemo (2nd cross-appellant herein) testified that one of the signatories to Exhibit A, Raimi Akano Adesina was alive. They ought to have called him to testify as to whether indeed Chief Adeyemo thumb printed the document. I agree that by virtue of Section 149 (d) of the Evidence Act, the court is entitled to presume that had he been called to testify his evidence would have been unfavourable to them. Having regard to the presumption in favour of Exhibit A by Section 123 of the Evidence Act, there was no duty on the cross-respondent to call witnesses to testify as to its genuineness. I am of the respectful view that the learned trial Judge was right to rely on Exhibit A as the cross-respondent’s vendor’s title. For this reason, the contention of the cross appellants that Folayan was indigent and could not afford to purchase land for N10, 000:00 or the fact that he sold the land to the cross-respondent 21 days after purchase cannot affect the validity of Exhibit A.
With regard to the contention of the cross-appellants that Adesina family land was divided into two after the litigation with Olujinle and that a portion was given to Chief Adeyemo exclusively, the onus was on them to establish this fact by credible evidence. There was no evidence whatsoever placed before the lower court in support of this contention. The cross appellants did not file a plan showing the portion of land allegedly given to Adeyemo and the land that remained in the possession of the Adesina family. The cross-respondent proved by documentary evidence (Exhibits A and B) and through his witnesses, PW1 and PW4 that he purchased 20.05 acres of the 25.05 acres sold to Folayan in the presence of witnesses and that Folayan took him to the land and put him in possession thereof. By his evidence, which was not discredited, he had satisfied the requirements of a valid sale under customary law.
The onus was again on the cross-appellants to prove that Adesina’s land was divided into two and a portion given to Chief Adeyemo exclusively. They failed to adduce any credible evidence in this regard. In the circumstances the learned trial Judge was correct in finding that upon a preponderance of evidence the cross-respondent had proved his derivative title from Folayan through the Adesina family. I also agree with the finding that the land conveyed in Exhibit A by Chief Adeyemo as the Mogaji of Adesina family along with three other members of the family could not have been any other land than that of the Adesina family. If the land had belonged to him exclusively in his personal capacity there would have been no need for other members of the family to join him in executing the deed in favour of Folayan. The fact that the cross-respondent failed to prove his claim for trespass and injunction against the respondents does not derogate from the fact that he was able to establish that he purchased 20.05 acres of land out of the 25.05 acres sold to Folayan by the Adesina family vide Exhibit A. His error was that he sought for a declaration of title in respect of the entire area of land sold to Folayan when he ought to have sought a declaration in respect of the specific portion which he purchased. An amendment of paragraph 28(a) of the Amended Statement of Claim would have cured the defect.
In conclusion, I find no merit in the cross-appeal. It is hereby dismissed. The judgment of the High Court of Oyo State sitting at Ibadan in Suit No. 1/810/91 delivered on 13th October, 1998 is hereby affirmed.
The parties shall bear their respective costs in this appeal.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading before now the Judgment of my learned brother K. M. O. Kekere-Ekun, J.C.A.
The issues raised in the appeal were comprehensively analysed and resolved in arriving at the conclusion dismissing the appeal, I adopt same as mine.
In the same vein, I also find no merit in the cross-appeal and same is dismissed by me. I affirm the judgment of the High Court of Oyo State, Ibadan in Suit No. 1/810/91 of 13/10/98.
I abide by the order made as to costs in the lead judgment.
MODUPE FASANMI, J.C.A. I have read in advance the judgment of my learned brother K.M.O Kekere-Ekun, J.C.A.
The issues have been exhaustively dealt with. I agree with the reasonings and conclusions arrived both in the substantive and the cross-appeal. They lack merit and are accordingly dismissed by me. I also abide by the order as to cost.
Appearances
A.L. OKUNADE For Appellant
AND
OLUWOLE AINA For Respondent
