MR. OLUGBEMI OYEBAJO & ORS v. CHIEF ISIAKA BAMGBOYE & ORS
(2012)LCN/5262(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of March, 2012
CA/I/140/2008
RATIO
THE ESSENCE OF THE PARTICULARS OF A GROUND OF APPEAL
The essence of the particulars of a ground of appeal is to set out briefly the aspect of the substantive law or procedural law that is affected by the error or misdirection identified or complained of in the ground of appeal. The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the Appellant his right of appeal when on the face of the ground of appeal notable issues arise for consideration by the court see the cases of OBENBE V. EKELE (2001) 10 NWLR PART 722 AT 677, AGBI V. OGBEH (2005) 8 NWLR PART 926 AT 40 AND DAKOLO V. REWANE DAKOLO (2011) 16 NWLR PART 1272 PAGE 22 AT 53 PARAS E-H. Per. MODUPE FASANMI, J.C.A
DECLARATION OF TITLE TO LAND: THE POSITION OF THE LAW WHERE THE CLAIMANT RELIES ON TRADITIONAL HISTORY
In an action for declaration of title to land, where the claimant relies on traditional history, he has the duty to plead and prove who founded the land, how the land was founded, the intervening owners through whom he derived his title and their particulars. Where this has not been done, the claim is not proved. See the cases of NKADO V. OBIANO (1997) 5 SCNJ AT 69, EWO V. ANI (2004) 1 SCNJ PAGE 272 AT 281 EZEOKONKWO & ORS V. OKEKE & ORS (2002) 11 NWLR PART 777 AT PAGE 1 AND AJALA V. OKOGBUE (2011) 16 NWLR APART 1272 PAGE 62 AT 76. Per. MODUPE FASANMI, J.C.A
LAND LAW: THE DUTY OF A TRIAL JUDGE WHEN FACED WITH COMPETING TRADITIONAL HISTORY OF TWO PARTIES TO A LAND DISPUTE
The first duty of a trial Judge who is faced with competing traditional history of two parties to a land dispute is to endeavor to determine which of the two histories is more probable. It is when he cannot find any of the two histories to be probable or conclusive that the law requires him to declare both inconclusive and proceed to decide the case before him by testing the competing evidence of traditional history against other evidence of numerous and positive acts of possession and ownership as established by evidence adduced in the case under the principles enunciated in Kojo II v Bonsie. The supreme court in the case of OBIOHA vs. DURU supra lucidly explains and or elucidates the rule in these words: “It is not the law that once there are conflicts in the traditional histories, given by the two parties in the suit, the trial judge must promptly declare them in conclusive and thereupon proceed to consider recent acts. What indeed happens, and that is why the principle in Kojo II v Bonsie (supra) was enunciated is that the case itself being one fought on hearsay upon hearsay, the trial judge has a duty to find which of the two histories is more probable by testing it against other evidence in the case. It is when he can neither find any of the two histories probable nor conclusive that he would declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership.” See also IRIRI v. ERHURHOBARA (1991) 3 SC pt.1 at 11 where Olatawura J.S.C opines: “It appears, the trial judge ran into difficulty of knowing which side it rely upon and it is for that reason that where a judge in such a situation finds himself at crossroads with regard to traditional history, it is better to test the competing stories by recourse to recent acts of possession that is not the position in this appeal before us”. Per. MODUPE FASANMI, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
(1) MR. OLUGBEMI OYEBAJO
(2) MR. SUNDAY OYEBAJO
(3) MR. LEKAN OYEBAYO Appellant(s)
AND
(1) CHIEF ISIAKA BAMGBOYE
(2) MADAM DADA SOYINKA
(3) OMINEYE ADENIREGUN Respondent(s)
MODUPE FASANMI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Ogun State, Abeokuta Judicial Division delivered on the 13th of November 2006.
The Plaintiffs now Respondents before this Court claimed at the lower Court against the Appellants jointly and severally as follows:
(a) A declaration that the plaintiffs are entitled to a statutory Right of occupancy over that piece or parcel of land situate, lying and being at Nlemo Village, Abeokuta, measuring 17,629 Hectares.
(b) The sum of N1,000.00 damages for trespass by the Defendants, their servants, agents and privies from going into the plaintiff’s family land.
(c) An order of injunction restraining the defendants, their servants, agents and privies from committing any further acts of trespass over the said land.
The Appellants who were the Defendants at the High Court filed 36 paragraphs Statement of Defence and Counterclaim wherein they counterclaim for and on behalf of the Oyebajo family as follows:
(a) Declaration of ownership by inheritance under Native Law and custom and by long possession arising from ancestor’s settlement and entitlement to Statutory Right of Occupancy over parcels of land verged blue on the attached Survey Plan on No. TROS/OG/112/11/2000 of 7th November, 2010 and signed by R. S Sobola Surveyor
(b) N2, million naira special and general damages for trespass and inconveniences
(c) Injunction restraining the plaintiffs, their servants, agents and privies from committing and continuing acts of trespass on the said parcel of land verged blue in the attached survey plan
The subject matter of the suit leading to this appeal is a parcel of land situate at Nlemo Village in Abeokuta, Ogun State. Both parties to the suit relied on traditional history of settlement on the land in dispute as proof of their root of title. While the Respondents asserted that they inherited the land in dispute through Chief Sowolu Soyinka who first settled on it in 1830, the Appellants claimed that Oyebajo Ayigilawopada (their ancestor) was one of the 5 persons who settled on separate parcels of land in Nlemo in 1830. The land in dispute forms part of the larger parcel of land which the Appellants inherited through Oyebajo Ayigitawopada. In a reserved Judgment delivered on 13th November, 2006, the learned trial Judge preferred the Respondent’s evidence of traditional history on the ground that it was more plausible and probable. The trial Court granted the claims of the Respondents and dismissed the counter-claim of the Appellants.
Appellants appealed against the judgment by a notice of appeal dated 8th February 2007. In compliance with the rules of this Court, Appellants brief of argument was filed on 5th of October 2009. Appellants reply brief was filed on 24/11/10 but deemed properly filed on 20/1/11.
While Respondents brief of argument was filed on 28/1/10 but deemed properly filed on 25/3/2010.
By the notice of preliminary objection filed contemporaneously with the Respondents brief, Respondents challenged the competency of the notice of appeal dated 8th February 2007 on which the appeal is rooted. The arguments on the objection were incorporated in the Respondents brief. The basis for the objection is that all the six grounds contained therein are not in compliance with the mandatory provisions of order 6 of the Court of Appeal Rules 2007.
Learned Counsel for the Respondents submitted that the grounds read together with their particulars are prolix, contentious and argumentative. They are vague, lacking in specificity and disclose no reasonable ground of appeal permissible under Order 6 of the Court of Appeal Rules 2007. Learned Counsel for the Respondents placed reliance on the cases of ADAH V. ADAH (2001) 5 NWLR PT 705 PAGE 4 AT PAGE 9 PARAS A-B, OKUMODI V. SOWUNMI (2004) 2 NWLR PART 856 PAGE 1 AT PAGE 22 PARAS D-E where the Court stipulated that any particulars of a ground of appeal which are conclusive, argumentative or vague are outside the precincts of Order 6 of the Court of Appeal Rules 2007 and in BARUWA v. OSOBA (1997) 3 NWLR Part 492 page 164 at 179 paras F-H where this court had this to say:
“This judgment will not be concluded without a comment or two on the grounds of appeal in the appellants notice of appeal. The grounds are like reproducing the proceedings in the lower court and condensing them into a notice of appeal. This court and the Supreme Court have in a lot of authorities criticized such grounds, but Counsel in general does not seem to pay much attention to the Courts’ directive.”
Learned Counsel for the Respondents urged the Court to strike out all the grounds of the appeal.
In reply, learned Counsel for the Appellants submitted that the six grounds of appeal are in strict compliance with the provisions of order 6 rules 2 (1) to (3) and 3 of the court of Appeal Rules, 2007. He submitted that the principles for determination of competent grounds of appeal had been laid down by the Supreme Court of Nigeria in plethora of cases wherein the Supreme Court was called upon to determine the competence of Order 8 rule 2 sub-rules 2, 3 and 4 of the Supreme Court Rules which are in pari mateiria with Order 6 Rule 2 (1) (2) and (3) of the Court of Appeal Rules, 2007 under consideration and in the case of OLUFEAGBA VS. ABDULRAHEEM (2010) ALL F.W.L.R (PT. 572) 1039 which lead judgment of the Court was delivered by Fabiyi J.S.C opines:-
On what determines competent grounds of appeal:-
“A ground of appeal can only be competent if the particulars and the nature of the alleged misdirection or error are clearly stated. The ground must not be argumentative, vague or general in terms. It must disclose reasonable complaint against ratio decidendi in the decision as opposed to an orbiter dictum. A ground of appeal must be directed at the decision of the Court below: The particulars to a ground of appeal must be in tandem with it. If the particulars are at cross purpose to the ground of appeal, it becomes defective and liable to be struck out. In the instant case, a clear perusal of grounds 2, 3, 5, 6, 7 and 8 of the grounds of appeal shows that none of them is general in terms, vague, or argumentative. They disclose reasonable grounds in which complaints are directed at ratio decidendi of the decision of the Court below”
Learned Counsel for the Appellant submitted that the grounds and particulars are not only clear and understandable but are equally intelligible meaningful and reasonable. None of the particulars constitutes any argument. He urged the court not to strike out the grounds of appeal the notice of the appeal of the Appellants.
A ground of appeal defines or isolates and fully identifies a wrong committed by a court in its judgment for the purpose of attack and also furnishes the rationale for challenging the decision that aggrieves an Appellant. See FARDOUN V. M.B.C. INTERNATIONAL BANK LTD (2006) ALL FWLR PART 297 PAGE 1130 AND OZIGBO V. PDP (2010) 9 NWLR PART 1200 PAGE 601 AT 630 PARSA C-D.
The essence of the particulars of a ground of appeal is to set out briefly the aspect of the substantive law or procedural law that is affected by the error or misdirection identified or complained of in the ground of appeal. The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the Appellant his right of appeal when on the face of the ground of appeal notable issues arise for consideration by the court see the cases of OBENBE V. EKELE (2001) 10 NWLR PART 722 AT 677, AGBI V. OGBEH (2005) 8 NWLR PART 926 AT 40 AND DAKOLO V. REWANE DAKOLO (2011) 16 NWLR PART 1272 PAGE 22 AT 53 PARAS E-H.
I have glanced through the grounds of appeal and the particulars of the grounds of appeal. The particulars are not rendered unintelligible because they have not been couched in a manner which does not give allowance for its being understood or does not give room for uncertainty.
The particulars are defined in relation to the subject matter and are clearly relevant to the grounds. See OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) ALL FWLR PART 497 PAGE 1 AT PAGE 29 PARAS D-F PER Adekeye J.S.C.
The particulars are good particulars given the peculiar facts of the case. They raised triable issues which would sustain the appeal. The Respondent’s objection is therefore overruled and accordingly struck out.
Appellants distilled five issues for determination from the grounds of appeal as follows:
(a)Whether the learned trial Judge properly evaluated the evidence of traditional history given by the Defendants and applied a correct or proper approach to the evidence led by the two parties before arriving at the conclusion that the plaintiffs evidence of traditional history of settlement was more plausible and probable than that of the Defendants which were incomplete and improbable.
(b) Whether the learned trial Judge rightly directed himself in holding that from the pleading of the Defendants and their oral evidence in Court, the Defendants failed to show, or prove before the court how the land in dispute came to be founded and particulars of the intervening owners through whom they claimed.
(c) Whether from the evidence adduced by the parties on record, the Rule in Kojo II v. Bonsie applies in the instant matter and ought to have been invoked by the trial Judge in the determination of the action or matter.
(d) Whether the trial judge properly directed himself in holding that the Plaintiffs Survey Plan No. OG/D/0785/2000/003 drawn by licensed Surveyor, G. D. Oladimeji alone sufficiently established the identity of the land in dispute in finding for the Plaintiffs.
(e) Whether from the totality of evidence available on record, the trial judge rightly and properly evaluated the evidence and, or adopted a correct approach of evaluation of evidence in finding for the Plaintiffs Learned Counsel for the Respondents distilled three issues for determination thus:
(1) Whether on the material contained in the printed record of appeal, the learned trial Judge was wrong in preferring the Respondents evidence of Traditional History of settlements on the land in dispute to that of the Appellants
(2) Since the learned trial Judge was satisfied with the Respondents evidence of traditional history, but not with that of the Appellants, was the Court under a legal duty to invoke and apply the principles of law enunciated in Kojo II v Bonsie
(3) Whether on the printed record, the finding of the learned trial Judge in respect of the identity of the land in dispute is legally flawed.
I consider the issues formulated by the Respondents adequate and appropriate to properly determine this appeal and I shall proceed to determine the said issues as formulated by the Respondents.
Issue One
Whether on the material contained on the printed record of appeal, the learned trial Judge was wrong in preferring the Respondents evidence of traditional history of settlement on the land in dispute to that of the Appellant.
Learned Counsel for the Appellants submitted that taking the facts in the pleadings of the Appellants and oral testimonies of the Appellants witnesses, the Appellants clearly both in their pleadings oral testimonies discharged the duties expected of them when they relied on evidence of tradition in proof of their Statement of Defence and Counter-claim Submitted further that 1st Appellant who happened to be the 4th Appellant’s witness Olugbemi Oyebayo averred that his great grandfather Ayigilawopada settled on the land of Nlemo village as being among the first settler of the Appellant’s land at Nlemo village over 100 years ago. The great grandfather of the 1st Appellant was No. 4 among the 5 persons listed in paragraphs 4 and 8 of the Appellants further amended Statement of Defence and counter-claim. He contended that 1st Appellant i.e 4th D.W testified how his grandfather, Ayigilawopada, the 1st among the members of his family settled at Nlemo village over 100 years ago, built a house on the land, how his father equally had a house there. Submitted that since the Appellants have stated who founded the land, how the land was founded and particulars of the intervening owners, the trial Judge was wrong to have held that the evidence of traditional history of settlement given by Respondents was more plausible and probable than that of Appellants which was incomplete and improbable. Learned counsel place reliance on the cases of RIARO V. TENALO (1976) 12 SC PAGE 31 AT 41, ANYANWU V. MBERA (1992) 5 NWLR PART 242 PAGE 386 AT 389, NKADO V. OBIANO (1997) 5 SCNJ AT 69, EZEOKONKWO V. OKEKE (2002) 5 SCNJ AT 14 AND AKANBI V. SALAWU (2003) 6 SCNJ PAGE 246 AT 255-256 (2004) 1 SCNJ 272 AT 281.
He further submitted that the court has no power to give judgment to plaintiff who is Respondent in this appeal as a result of the weakness in the defence. He urged the court to resolve this issue in favour of the Appellants.
Learned counsel for the Respondents submitted that there is no single reference on the printed record to bear out the Appellants contention that the learned trial Judge indeed erred in law by granting the claims of the Respondents and dismissing those of the Appellants. Learned counsel for the Respondents contended that Appellants have the burden in law to satisfactorily demonstrate in their brief of argument why the judgment of the lower court should be set aside. Submitted that Appellants counsel concedes that both the Appellants and the Respondents pleaded and relied on traditional history of settlement. The learned trial judge meticulously recapped the evidence tendered by the parties through their witnesses and considered the relevant law applicable to the facts disclosed by the evidence of the parties thus:
“The law is settled that it is not sufficient for a party relying on proof of title by traditional evidence or traditional history to merely prove that he or his predecessor in title had owned or possessed the land from time Immemorial. Such a party is bound to plead and prove such facts as:
Who founded the land
How the land was founded
Particulars of intervening owners through whom he claims
The burden therefore on the parties in this case is not only to establish the traditional histories they have pleaded but to ensure that the traditional histories disclose the facts required by law. Learned Counsel for the Respondents submitted that the judgment of the lower Court was well grounded. The findings upon which the learned trial judge granted the claims of the Respondents and dismissed those of the Appellants find a robust and an unassilable support in the record of appeal. Submitted an appellate Court would not interfere with the findings of fact by a trial Court where such findings of fact are supported by the pleadings and the evidence adduced before the Court. He placed reliance on the case of IYANDA V. LANIBA (2003) 8 N.W.L.R Part 801 page 267 at 294 paras B-D, Learned Counsel for the Respondents urged the Court to resolved issue one against the Appellants.
In an action for declaration of title to land, where the claimant relies on traditional history, he has the duty to plead and prove who founded the land, how the land was founded, the intervening owners through whom he derived his title and their particulars. Where this has not been done, the claim is not proved. See the cases of NKADO V. OBIANO (1997) 5 SCNJ AT 69, EWO V. ANI (2004) 1 SCNJ PAGE 272 AT 281 EZEOKONKWO & ORS V. OKEKE & ORS (2002) 11 NWLR PART 777 AT PAGE 1 AND AJALA V. OKOGBUE (2011) 16 NWLR APART 1272 PAGE 62 AT 76.
Going through the record, the learned trial Judge at page 166 of the record correctly identified that the claims of both parties to the suit are rooted in traditional history of settlement on the land in dispute. The lower court posited variously as follows:-
“The plaintiffs having regard to the totality of the averments in the statements of claim rely on traditional history or evidence of tradition to establish their title to the land in dispute…
The defendants, like the plaintiffs, it is to noted, rely on traditional history or of tradition in establishing their ownership to the land verged blue in their plan that they claim to be theirs…”.
In the instant case, the evidence tendered by the parties through their witnesses on the printed record is that the plaintiffs now respondents led evidence through the 1st P.W. as to the founding of the land in dispute by original settlement by Sowolu Soyinka (her great grandfather) who came from Apomu in 1830. The witness testified as to uses to which Sowolu Soyinka put the land in dispute after he settled thereon. The witness testified as to the children of Sowolu Soyinka namely Ogunbayo Ojo Soyinka (the grandfather of the witness) Talabi and Sotola. She disclosed that her grandfather, Ojo Soyinka inherited the land in dispute while Sotola inherited his father’s land at Adao in Ijemo Township.
While the 4th D.W. testifying in respect of the land in dispute for the Appellants stated that his great grandfather, Ayilawopada was the first member of the witness family to settle at Nlemo Village and that this was over a hundred years ago stating that his own father has a house at Nlemo.
The learned trial Judge appraised and evaluated the case of each party and at pages 192-293 lines 24-8 of the record stated as follows:-
“I have also earlier highlighted the evidence that the plaintiffs adduced in the proof of the traditional history of the land in dispute that they pleaded. The said 1st PW was cross-examined and her evidence was not in any way successfully challenged. It was not shown that she could not have known of the history of the land in dispute as testified to by her. Her testimony as to the founding ancestor of the Plaintiffs to the founder of the land as claimed by the plaintiffs, and eventual devolution of the land in dispute to her father, and how this came to be, was not successfully challenged. On the contrary, the witness under cross-examination maintained that Ewebiyi, Oyebajo, Adeboye and Obalokoja were not settlers on the land; she stated that they met her grandfather on the land in dispute and worked for him thereon.”
At page 193 line 8-194 lines 13 of the record, the learned trial Judge observed from Appellants pleadings that:
“The defendants having regard to the portion of their pleading titled “Statement of defence” definitely never pleaded how the land in dispute came to be founded and particulars of intervening owners through whom they claim it”.
In an action for declaration of title to land, where the claimant relies on traditional history as in this case, the Appellant has the duty to plead and prove:
(a) the founder of the land;
(b) how the land was founded;
(c) the intervening owners through whom he derived his title and their particulars.
See DAKOLO V. REWANE DAKOLO (2011) 16 NWLR PART 1272 PAGE 22 AT 47 – 48 PARAGRAPHS A-C.
Appellants did not plead where their ancestors came from to found parcel of land at Nlemo Village. No scintilla of evidence was given in support of how the Appellants ancestor migrated to Nlemo Village (which is about 18 kilometers to the present Nlemo Village) to found the land in dispute around 1830 as pleaded under the portion of their pleadings in the counter claim.
The learned trial Judge after ascribing probative value to the evidence then proceeded to weigh the evidence before it on the imaginary scale upon the preponderance of evidence to decide which side the scale weighed having regard to the burden of proof as in AGBENIFO V. AIWEREOBA (1988) 1 NWLR PART 70 AT 325, MOGAJI V. ODOFIN (1978) 4 SC 91; ABISI V. EKWEALOR (1993) 6 NWLR PART 302 PAGE 643 AND DAKOLO V. REWANE-DAKOLO SUPRA PAGE 55 PARAGRAPHS A -C held a follows:-
“Given the observation herein before made in respect of the evidence of tradition adduced by the parties in respect of the land in dispute, I cannot but say that while I find the evidence of tradition adduced by the plaintiffs which was not in any way discredited by cross-examination most plausible and probable and that adduced by the defendants incomplete and thereby incredible. I naturally prefer the traditional evidence adduced by the plaintiffs and accept same.”
The findings are premised on the credibility of the witnesses called by
parties before the trial court. See AGBI V. OGBEH (2006) 5 S.C. part 11 page 129 at 162 paragraph 21 and 163 paragraph 30.
It is the law that evaluation of evidence and ascription of probative value to the testimony of a witness is within the exclusive domain of the trial court that heard and watched the demeanor of the witness before it. The inference drawn by the trial Judge was supported by evidence and the facts before him were not perverse. Issue one is hereby resolved against the Appellants.
Issue Two
Since the learned trial Judge was satisfied with the Respondent’s evidence of traditional history but not with that of the Appellants, was the court under a legal duty to invoke and apply the principles of law enunciated in Kojo II v. Bonsie.
Learned counsel for the Appellant submitted that from the pleadings of the parties and their oral testimonies as contained in the record, it is crystal clear that from the evidence of traditional history given by the two parties, apart from the fact that both relied on traditional evidence, both evidence of traditional history are equally conflicting. He submitted that in view of the conflicting traditional evidence, the rule in Kojo II v. Bonsie applies to the instant case. He cited the cases of AGEDEGUDU v. AJENIFUJA (1963) 3 NSCC page 89 at 94-95, MOGAJI v. CADBURY (NIG) LTD (1985) 16 NSCC Part 11 page 959 at 991 and BALOGUN v. AKANJI (1989) 19 NSCC Part 1 page 180 at 182 – 185.
It became mandatory for the trial court to have tested the traditional history of evidence against the recent happenings within the recent memories. Submitted that since the trial court has failed to observe, apply and rely on the aforestated rule, this court is humbly urged to observe and apply the rule. Learned counsel for the Appellants urged the court to reverse the judgment and grant the Appellants counter-claim and resolve the issue in favour of the Appellant.
Learned counsel for the Respondent submitted that the essence of the rule in Kojo II v Bonsie is that where the two parties to a land dispute plead and rely on traditional history for their root of title and at the close of evidence, the trial judge is unable to accept either of the contending traditional histories as probable and conclusive, then the best way the trial Judge should determine which of the conflicting traditional histories is more probable, is to test each against facts in recent years as established by evidence adduced in the case. Reliance was placed on the case of OBIOHA v. DURU (1994) 10 SCNJ Page 48 at 58. Submitted that the rule in Kojo II v. Bonsie supra is inapplicable. Learned Counsel for the Respondents urged the court to resolve issue two against the Appellants.
The first duty of a trial Judge who is faced with competing traditional history of two parties to a land dispute is to endeavor to determine which of the two histories is more probable. It is when he cannot find any of the two histories to be probable or conclusive that the law requires him to declare both inconclusive and proceed to decide the case before him by testing the competing evidence of traditional history against other evidence of numerous and positive acts of possession and ownership as established by evidence adduced in the case under the principles enunciated in Kojo II v Bonsie. The supreme court in the case of OBIOHA vs. DURU supra lucidly explains and or elucidates the rule in these words:
“It is not the law that once there are conflicts in the traditional histories, given by the two parties in the suit, the trial judge must promptly declare them in conclusive and thereupon proceed to consider recent acts. What indeed happens, and that is why the principle in Kojo II v Bonsie (supra) was enunciated is that the case itself being one fought on hearsay upon hearsay, the trial judge has a duty to find which of the two histories is more probable by testing it against other evidence in the case. It is when he can neither find any of the two histories probable nor conclusive that he would declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership.”
See also IRIRI v. ERHURHOBARA (1991) 3 SC pt.1 at 11 where Olatawura J.S.C opines:
“It appears, the trial judge ran into difficulty of knowing which side it rely upon and it is for that reason that where a judge in such a situation finds himself at crossroads with regard to traditional history, it is better to test the competing stories by recourse to recent acts of possession that is not the position in this appeal before us”.
The position in the present case however is that the learned trial judge after comparing the evidence of the traditional history tendered by the parties found at page 194 lines 6-13 of the record as follows:
“Given the observation herein before made in respect of the evidence of tradition adduced by the parties in respect of the land in dispute, I cannot but say that while I find the evidence of tradition adduced by the Plaintiffs which was not in any way discredited by cross-examination most plausible and probable and that adduced by the defendants incomplete and thereby incredible, I naturally prefer the traditional evidence adduced by the plaintiffs and accept same.
Since the learned trial judge found that the evidence of tradition adduced by the Respondents clearly established the traditional history they relied upon for their root of title to the land in dispute and hold that it was plausible and probable, I hold the view that the rule in Kojo II v Bonsie is inapplicable to the case at hand. Issue two is hereby resolved against the Appellants.
Issue Three
Whether on the printed record, the finding of the learned trial judge in respect of the identity of the land in dispute is legally flawed.
Learned Counsel for the Appellants submitted that in an action for declaration of title to land, where the identity of the land is in dispute as in the instant case the onus of proof is basically on the Plaintiff to establish or prove by preponderance of evidence with certainty (i) the area or location (ii) dimensions, (iii) Boundaries and Basic or salient features on the land.
Reliance was placed on the case of OKEDARA v. ADEBARA (1994) 6 SCNJ Part 11 page 254 at 265 and OTANMA v. YOUDUBAGHA (2006) 1 SCNJ 94 at 106. Submitted further that since both parties in the respective survey plans differ in the area, or location of the land claimed, then the identity of the land is in dispute. It thus becomes inevitable for Plaintiffs now Respondents in this case to prove by specific and unequivocal evidence the boundaries of the land. Failure of the Plaintiff to prove such boundaries shall render the Plaintiffs case to be dismissed in its entirety. He referred to the case of AREMU VS. ADETORO (2007) 7 S.C. part 11, at page 1. Submitted further that the Respondents survey plan exhibit 4 which is lacking of basic features, description of the land and boundaries is not sufficient proof of identity of the land in dispute. Learned Counsel for the Appellants urged the Court to resolve this issue in Appellants favour.
Learned Counsel for the Respondents submitted that the learned trial Judge did the analysis of the oral evidence given by the two surveyors in respect of exhibits 4 and 5. He also appraised the evidence led before him in respect of the land in dispute before reaching the conclusion that the Respondents survey plan exhibit ‘4’ better reflected the land in dispute. Learned Counsel for the Respondent urged the Court not to disturb the findings of the lower Court because they are not perverse. He referred to the case of NWOKOROBIA US. NWOGU & 2 OTHERS (2009) 4-5 S.C PN1 page 144 at 78-9. Learned Counsel for the Respondents urged the Court to resolve this issue in favour of the Respondents and against the Appellant.
Before an order of declaration can be made in respect of a parcel of land in dispute, the land must be ascertained with certainty. See MAKANJUOLA V. BALOGUN (1989) 3 NWLR PART 108 AT 192, OLUSANMI V. OSHASONA (1992) 6 NWLR PART 245 AT 22 AND ADESANYA V. ADERONMU (2000) 9 NWLR PART 672 AT 370.
The Plaintiff is an action for declaration of title to land can establish the identity of the land by:
(a) Adducing oral evidence describing the parcel of land with such degree of accuracy as would guide in producing a survey plan of the land or
(b) By filing survey plan reflecting all features of the land and showing clearly the boundaries of the land. See AKULAKU V. YONGO (2002) 5 NWLR PART 759 PAGE 135 AND OGUN V. AKINYELU (2004) 18 NWLR PART 905 AT 362.
In the instant case, at the trial of the proceedings, Surveyor Oladimeji testified as P.W1 and tendered the survey plan No. OG/D/0785/2000/03 for the case of the Respondents which was admitted as exhibit 4. After his oral testimony in chief, the witness was fully cross examined on the survey plan by the Counsel for the Appellants.
Appellants on their part pleaded that the area of land in respect of which he counterclaimed is the area marked blue on parcel ‘A’ within Survey plan TROS/OG/112/11/2000 filed by them. Surveyor Rafiu Sobota (who made the said survey plan testified in the lower Court as the 1st D.W, and it was through him that survey plan TROS/OG/112/11/2000 was admitted as exhibit 5.
The learned trial judge evaluated and appraised the oral evidence given by the two surveyors in respect of exhibit 4 and exhibit 5. At page 188 lines 16-29 of the record, the learned trial Judge made the following findings:
“I have examined both exhibits ‘4’ and ‘5’ as I am entitled to (see Chief Samson OKANIKO & ANOR v. OKON UDO EKPE & ANOR (2000) 2 SCNJ page 21 at 206), and I am in no doubt that the land in dispute as shown in exhibit ‘4’ is also clearly shown as parcel ‘B’ in exhibit ‘5’ I am of the firm view that the defendants simply procured the 1st D.W to make exhibit ‘5’ to depict the land in dispute as being at a somewhat different location in order to accommodate the information contained therein in respect of Odunlami family land, and that which they claimed to have sold to Chief Ayorinde, thereby introducing some confusion into this case in which the identity of the land in dispute as claimed by the Plaintiffs is well known to both the plaintiffs and the Defendants. In conclusion, I therefore find the Plaintiffs to have established the land in dispute to be as shown in Exhibit 4.”
The learned trial judge had the singular privilege of seeing and hearing the witnesses, and exercising his right in law to compare the survey plans tendered, the identity of the land in dispute cannot be said to be in dispute at all. See AKULAKU v. YONGO (2002) 5 NWLR Part 759 page 135 and NWOKOROBIA v. NWOGU 2 OTHERS (2009) 4-5 SC (Pt.11) page 144 at 178 para 14 pg 179 para 25. Since the identity of the land in dispute was satisfactorily established by the respondents, it is my view, and I so hold that issue three is hereby resolved against the Appellants.
In conclusion, the appeal lacks merit and it is accordingly dismissed.
The judgment of the lower court delivered on the 13th of November, 2006 is hereby affirmed. Cost of N30,000.00 is hereby awarded in favour of the Respondents and against the Appellants.
STANLEY SHENKO ALAGOA, J.C.A., OFR: I read in advance the judgment just delivered by my learned brother, Fasanmi (J.C.A.). I agree with the reasoning and conclusion reached that the appeal lacks merit and should be dismissed. I dismiss same and abide by the consequential orders made in the lead judgment including the order on costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege of reading in draft the judgment just read by my learned brother, FASANMI, J.C.A., I agree with the reasoning and conclusion arrived thereat. My learned brother has adequately dealt with all the issues raised in this appeal. I have nothing useful to add. I too dismiss the appeal and abide by all other consequential orders made in the lead judgment inclusive of costs.
Appearances
Dr. Femi Jolaoso with Tola David-KafanchanFor Appellant
AND
Cyril Ogbekene with E. OgbekeneFor Respondent
