ADISA FAJIMI V. SUNDAY YISA SUBERU & ORS. (2012)

ADISA FAJIMI V. SUNDAY YISA SUBERU & ORS.

(2012)LCN/5277(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of March, 2012

CA/I/185/05

RATIO

LAND LAW: WHAT CONSTITUTES A CLAIM FOR TRESPASS AND A CLAIM FOR AN INJUNCTION

It is a common ground that where a claim for trespass is combined with a claim for an injunction as in this case’ the title of the parties to the land in dispute is automatically put in issue. See:- Gbadamosi v. Tolani (2011) 5 NWLR (Pt.1240) 352 at 366 paras C. PER ADZIRA GANA MSHELIA, J.C.A.

LAND LAW: WHO WILL THE LAW ASCRIBE TITLE TO WHERE TWO PARTIES ARE CLAIMING TITLE TO LAND

It is also the law that when the issue is to which of two claimants has a better right to possession or occupation of a piece of land in dispute the law will ascribe such possession and/ or occupation to the person who proves a better title. See:- Aromire v. Awoyemi (1972) 1 ALL N.L.R. Part 1 at 10, Fasoro v. Beyioku (1988) 2 NWLR (Pt76) 263; Ogunkeye v. Oni (1990) 2 NWLR (Pt.135) 745; Oladunjoye v. Akinterinwa & Anor. (2000) 6 NWLR (Pt. 659) 92 and Yusuff v. Keinsi (2004) Vol. 48 W.R.N. 143 at 150. In Yusuff v. Keinsi (supra) at page 150 it was held that:

”it is trite that only a person in possession of land at the material time can maintain an action for damages for trespass, but when the issue is as to which of the two claimants has a better right to possession or occupation of a piece of land in dispute, the law will ascribe such possession and occupation to the person who proves a better title thereto”. See also Ogunbiyi V. Adewunmi (1988) 5 NWLR (Pt 93) 215. PER ADZIRA GANA MSHELIA, J.C.A.

LAND LAW: ON WHOM LIES THE ONUS IN A CASE FOR DECLARATION OF TITLE

WORDS AND PHRASES: MEANING OF TRESPASS

Trespass is a violation of possessory right and an action therein is maintainable at the instance of the person in possession or a person with right to possession. See:- Anya Koru V. Obiakur (2005) All FWLR (Pt 268) 1568. PER ADZIRA GANA MSHELIA, J.C.A.

JUSTICES

STANELY SHENKO ALAGOA (OFR) 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

ADISA FAJIMI – Appellant(s)

AND

SUNDAY YISA SUBERU & ORS. – Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Ogun State sitting at Ota Judicial Division delivered by Onafowokan, J. on 27th day of November, 2004.

The appellant (as plaintiff in the court below) by an amended writ of summons and amended statement of claim dated 7th June, 2001 claimed against the Respondents (defendants in the court below) jointly and severally as follows:-

The sum of N750,000.00 (Seven hundred and Fifty thousand Naira only) comprising:-

(a) N250,000.00 as costs of re-establishing survey beacons destroyed on the five acre land in dispute at the rate of N50, 000.00 per acre.

(b) N500,000.00 as general damages for unlawful trespass on the land in dispute.

Perpetual injunction restraining the defendants their servants or privies from trespassing on the land in dispute by way of digging foundations building, farming, cutting trees, selling leasing or alienating in any other form of trespass on the land in dispute.

The plaintiff called six witnesses to support his case, while the defendants called five witnesses. Thereafter both counsel addressed the court. In a considered judgment delivered on the 27th day of October, 2004 by Onafowokan J, the plaintiffs claim was dismissed.

Aggrieved with the said decision Plaintiff/Appellant lodged an appeal to this court vide his Notice of Appeal dated 24th December, 2004 and filed same date containing five Grounds of Appeal.

In compliance with the Practice of this court parties filed and exchanged briefs of argument. Appellant brief of argument dated 25/1/06 was filed same date. While Respondents brief undated was filed on 26/10/2006 pursuant to an order of court granted on 11/10/06.

When the appeal came up for hearing on 7/2/12 appellant’s counsel was absent but the record showed that Mr. Olumide Akinbiyi was in court on 23/5/11 when this appeal was adjourned to 7/2/12 for hearing. Respondents were also served through their counsel L.O. Ogunleye on 14/6/11 but failed to appear in court. The court invoked its power under 18 Rule 9(4) of the Court of Appeal Rules, 2011 and deemed Appellant’s brief of argument filed 25/1/06 and Reply Brief, filed on 1/2/07 as well as Respondents’ brief of argument filed on 26/10/06 as duly argued.

Appellant distilled three issues from the five Ground of Appeal for determination as follows:-

(1) Whether in view of the claim before the Court the issue for determination was that of title or in the words of learned trial Judge who of the plaintiff and defendants had a better title to the land in dispute and whether the judgment of the learned trial judge could stand in view of his formulation of the wrong issue for determination and whether the judgment of the court is not capable of being interpreted as giving title to the defendants which they never counter-claimed for.

(ii) Whether in view of the pleadings of the Plaintiff and his evidence that the land in dispute is in Owode/Tetiku village and the conflicting evidence of the defendants that the land in dispute is in Agoro village, the learned trial judge ought not to have resolved the issue of identity of the land in dispute is the same land referred to by the Defendants in their evidence.

(iii) Whether the learned trial judge properly evaluated the evidence before him, by placing the entire evidence of the plaintiff alongside that of the defendants, particularly documentary evidence, including certificate of occupancy and survey Plans which was not challenged by the defendants and which ought to have assisted him on concluding whether or not the plaintiff had enough acts of possession to maintain an action in trespass.

Respondents formulated three issues for determination as follows:-

(i) Whether in view of the claim before the court the issue for determination was that of title or in the words of the learned trial Judge who of the plaintiff and defendants has a better title to the land in dispute.

(ii)Whether in view of the pleading of the plaintiff and his evidence that the land in dispute is in Owode/Tetiku village and the conflicting evidence of the defendants that the land is in Agoro village.

(iii) Whether the learned trial judge properly evaluated the evidence before him by placing the entire evidence of the plaintiff alongside that of defendants, particularly documentary evidence including Certificate of Occupancy and Survey Plans.

In determining this appeal I will adopt the issues formulated by the appellant. The Respondents issues are similar to that of the Appellant as such I will consider same along with that of the Appellants.

The grouse of the Appellant under issue one relates to the issue formulated by the learned trial judge on page 121 of the record wherein he said:-

“In the instant case, and from the pleadings of the parties, the major issue for determination is who of the Plaintiff and the Defendants have a better title to the land in dispute.”

Learned appellant’s counsel submitted that the learned trial judge formulated an issue fit for declaration of title than one for trespass. That the subject litigation in the suit is the right of the Plaintiff to protection of the land in dispute against trespassers, to wit: the defendants. The issue to be determined is whether the plaintiff had possession of the land in dispute and whether the Defendants trespassed on it. That the Learned trial Judge dealt mainly on the issue of title in his judgment.

Learned counsel further submitted that while it is conceded that title may be one of the issue to be considered in determining whether the plaintiff had possession that could sustain the case of trespass, the learned trial judge got it wrong when he stated that the title of the Plaintiff to the land in dispute, is rooted in the traditional history of the Odunbaku family. Learned counsel argued that the evidence of the Plaintiff is that he purchased the land in dispute alongside another parcel of land and he sold a greater part of the land in dispute to two other persons who have in turn obtained certificates of occupancy from Ogun State Government. It was contended that the defendants neither joined issue with the plaintiff nor contested the validity of the certificate of occupancy. They are deemed to admit same. That Plaintiff never based his title on traditional history, but on purchase and registered documents of title and evidence of possession of adjacent land. The title of the Plaintiffs’ vendors was never put in issue. That the court had a duty to confine itself to issues raised by the parties.

See Agbeje vs. Ajibola (2002) M.J.S.C. 50 and State vs. Oladimeji (2003) 3 M.J.S.C. 157.

It was further contended that despite the fact that Defendants pleaded that the land in dispute is not at Owode Tetiku village and is not part of land belonging to the Odunbaku family, they failed to furnish evidence to dislodge the survey plans tendered by Plaintiff in order to show where their own land is situated. That defendant’s oral evidence could not and did not successfully challenge the documentary evidence furnished by the plaintiff. See Owhonda vs. Ekpechi (2003) 12 M.J.S.C.1.

Learned counsel submitted that the registered documents of title tendered by the plaintiffs which is neither denied nor challenged by the defendants ought to have been considered as better title which suggests better possession by the plaintiff thus making him entitled to the judgment in trespass in this case. That because the learned trial judge concluded that the defendant had better title, justice was miscarried against the plaintiff/appellant. He urged the court to resolve this issue in favour of the appellant.

Respondents’ counsel commenced the argument by submitting that although trespass is a violation of the possessory right and does not generally involve title to land yet where both parties claim to be in possession, possession will be presumed in favour of a person who can show a better title while the other becomes a trespasser. See:- Amakor Vs. Obiefuna (1974) 3 S.C. 67. It was submitted that appellant did not plead their history of how they came about the land in dispute. That respondents by their statement of defence pleaded facts of history especially that of DW1 whom the other defendants purchased land from him. Learned counsel submitted that the learned trial judge rightly concluded after evaluating the evidence adduced that their evidence of traditional history is, conclusive, cogent and believable which was not contradicted by any material evidence. It therefore requires no further proof. See:- Dike Okoloed (1999) 10 NWLR (Pt.623) 359 at 370.

It was further argued that the respondents’ case before the trial court is that the DW3 inherited the land under Yoruba Native law and custom. That the land is at Agoro and that he was granted by the DW1’s ancestor and he had been in possession of the land for a long time. This piece of evidence was corroborated by DW1 and DW2. See pages 99 – 105 of the record. Reliance was placed on the amended statement of claim at pages 17-20 of the record and evidence of PW5 and PW6 on pages 95 – 98. That the learned trial Judge properly directed himself when he held at page 120 fines 20-25 of the record that where a court is confronted with a situation of both parties claiming to be in possession, possession resides in a claimant that established a better title. See:- Omoni vs. Biriya (1976) 6 SC 49. That the law does not recognize concurrent possession. The fact that Plaintiff purchased the parcel of land from Odunbaku family and sold part of the land to two other persons who in turn obtained certificates of occupancy does not presuppose that the Plaintiff is in possession. Reliance was placed on Ogunleye v. Oni (1990) NWLR (Pt. 135) 145. That the learned trial Judge only considered the case of the appellant and his witnesses and rightly held that the appellant has failed to establish their root of title. Counsel submitted that the contention of the appellants that the trial Judge went to town on the issue of title got it all wrong and is misconceived. It was also argued that the evidence of PW5 under cross examination was that it was plaintiff’s father who bought the land in dispute from Odunbaku family in 1976. Plaintiff/Appellant said in his evidence that he purchased the land himself in 1976 when he was a minor. That the record shows sharp contradiction between the Plaintiff’s witnesses and this clearly depicted that the plaintiff cannot identify his land not to talk of being in possession. He urged the court not to interfere with the finding of the trial court at page 124 of the record line 2-10.

The question is, was the learned trial Judge wrong in the approach he adopted. It is a common ground that where a claim for trespass is combined with a claim for an injunction as in this case’ the title of the parties to the land in dispute is automatically put in issue. See:- Gbadamosi v. Tolani (2011) 5 NWLR (Pt.1240) 352 at 366 paras C.

The onus is on the Plaintiff in a case for declaration of title to land to prove that he is entitled to Judgment based on the evidence adduced by him in connection with the declaration sought. He can only rely on his own evidence alone and not on the weakness of the Defendants case. See:- Shittu V. Fashawe (2005) 14 NWLR (Pt 946) 571; Adesanya V. Aderonmu (200O) 9 NWLR (Pt 672) at 370 and Bamidele V. Oladele (2010) 34 WRN 15. In the instant case the Plaintiff’s claim is for trespass and injunction. Trespass is a violation of possessory right and an action therein is maintainable at the instance of the person in possession or a person with right to possession. See:- Anya Koru V. Obiakur (2005) All FWLR (Pt 268) 1568.

The case of the Plaintiff/Appellant at the court below is that the land in dispute situate at Owode Tetiku village in the Ado-Odo/Ota local Government Area of Ogun State forms part of a large tract of land which originally belonged to the Odunbaku descendants family and that same was sold to the 1st Plaintiff by the family through their accredited representatives vide purchase receipt dated 11/5/76. The 1st Plaintiff alleged that since the purchase, he exercised various acts of ownership and possession on the land. Plaintiff s further alleged that the 1st Defendant has continued to trespass on the land since 1998, by selling to all other Defendants and destroying survey beacons thereon.

The 1st Defendant/Respondent alleged that the land in dispute situate at Agoro village forms part of a large parcel of land which was settled upon and founded by Agoro family very many years ago. He denied that the land is part of Odunbaku family descendant but rather of Agoro family. The Respondents also denied acts of possession and ownership of the Appellant.

By the pleading both parties claim to be in possession and the relief sought is damages for trespass and injunction. The issue of title to land had been put in issue. The Learned trial Judge was therefore perfectly right when he said “who of the Plaintiff and the Defendants have a better title to the land in dispute”. Title and possession are so intimately interwoven that a finding on one may lead to an inference of the existence of the other. See:- Ogunbiyi v. Adewunmi (supra) page 221 – 222 paragraphs H – H. After stating the position of the law earlier on this issue, I am of the considered view that the issue formulated by the learned trial Judge was perfectly in order. It is the law. Title was in issue as such he has to determine, which of the parties had established better title to the land in dispute. Contrary to the submission of Appellant’s Counsel the formulation was not wrong. In determining the party that had better title the Learned trial Judge set out the five ways in which title to land may be proved as enunciated in the classicus case of Idundun v. Okumagba (1976) 9-10 SC. The five ways are:-

1. By traditional evidence

2. By production of documents of title

3. By acts of ownership extending over a sufficient length of time

4. By acts of long possession and enjoyment and

5. By proof of possession of connected or adjacent land”.

As rightly pointed out by the learned trial Judge by paragraph 4 and 5 of the plaintiffs Amended statement of claim, the Plaintiff/Appellant’s alleged their root of title to be by purchase in 1976 from Odunbaku descendant family which owned the land originally. By this averment it is evident that plaintiff’s title is rooted in traditional evidence/history of the Odunbaku family which has to be established first before he can base his claim of title on acts of ownership or long possession. The Defendants/Respondents joined issue with the Plaintiffs on their root of title.

Also 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: Okpala Ezeokonkwo & Ors. v. Nwafor Okeke & Ors. (2002) 5 SCNJ 1, (2002) 11 NWLR (Pt.777) 1, Dike v. Okoleodo (1999) 10 NWLR (Pt.623) 359, Kupoluyi v. Phillips (2001) 13 NWLR (Pt.731) 736 and Ogunleye v. Oni (1990) 12, NWLR (Pt 135) 745 at 783. Plaintiff is required to successfully establish the title of Odunbaku family before he would have discharged the onus of proving his title.

The Learned trial Judge after examining the entire pleading particularly the Plaintiff’s Amended Statement of Claim of 7/6/01 he found as a fact that the pleading was bereft of any fact on how the Odunbaku family came to own the land originally. It is not enough to plead that a land belonged to a family without more. The Plaintiffs pleading as filed is devoid of material facts necessary for the determination of the issue of title in this case. Whatever evidence or claim that Plaintiffs may have to the land in dispute has no foundation. You cannot build something on nothing. Parties are bound by their pleadings. See:- Njoku V. Eme (1973) 5 SC 2913 Emegokwe v. Okadigbo (1973) 4 SC 113 and Okahuorobor v. Aigbe (2002) 9 NWLR (Pt 771) 29.

The Learned trial Judge found that Plaintiffs had failed to prove their root of title or made out any prima facie case. As a result the Learned Trial Judge found it unnecessary to consider the Defendants/Respondents defence since they did not counter-claim. See:- Ajibona V. Kolawole 1996 10 NWLR (M.476) 22 and Dike V. Okoloedo (1999) 10 NWLR (Pt 623) 359 at 311. In Dike V. Okoloedo (Supra) it was stated that ordinarily, since the Appellants as Plaintiffs failed to prove their root of title satisfactorily in claim for declaration of title to land in dispute they failed to make out a prima facie case and the Respondents as Defendants who have not counter-claimed need not answer the claim upon such defective evidence. A plaintiff is to succeed on the strength of his own case and not on the weakness of the defence. See:- Onwuama V. Ezeokoli (2002) 5 NWLR (Pt. 760) 303 and Okedara v. Oba Adebona & Ors. (1995) 6 SCNJ (Pt.2) page 254 at 257, and Ogunleye v. Oni (1990) 2 NWLR (Pt 135) 745 at 775.

As regards the complaint of the Appellant that he was in exclusive possession of the land in dispute, the learned trial judge considered the evidence adduced before the court by both parties and concluded that Respondents gave cogent and credible evidence to show that the 1st Respondent was occupying the land for many years. I find nothing wrong with the conclusion arrived at by the learned trial judge. Appellant appears to rely heavily on the survey plan and the fact that he sold portion of land to 2nd and 3rd Plaintiffs though he could not remember the time he sold it to them. Appellant also claimed he was farming on the land since 1976 when he bought the land but could not know any of his boundarymen. As earlier stated the title of the Odunbaku family had not been proved by credible evidence. Unless the origin of title is valid as established by credible, even if there was copious possession the length of possession does not ripen invalid title do a valid title. See:- Yusuf V. Adegoke (2007) 11 NWLR (Pt 1045) 332 at 360.

Finally on this issue, I wish to state that the learned trial Judge formulated the right issue and resolved it in line with the pleadings, oral and documentary evidence adduced before the court.” Having carefully examined the method adopted by the trial Judge in resolving the issue, I hold the view that no miscarriage of Justice has been occasioned as contended by Appellant’s Counsel. Accordingly issue 1 is resolved against the Appellant.

I will treat issues 2 and 3 together since they are related.

The contention of Appellant’s counsel as presented in the brief of argument is that Appellant’s pleadings, evidence, including plans’ show that the land, in dispute is at Owode/Tetiku. While the oral evidence of the Respondents on the other hand is that the land in dispute is at Agoro, which is a different village though contingent to each other. That the Respondents did not furnish their survey plan to shows that the land in dispute is not at Owode/Tetiku but at Agoro. Learned counsel submitted that the evidence of both parties is that the land of the plaintiff’s vendors, Odunbaku descendants family at Owode is different from the land of the first defendant’s overlords, the Agoro family. Learned counsel further argued that the court was duty-bound to resolve the issue of identity of the land in dispute. That Appellant had sufficiently stated with clarity and certainty through survey plans tendered, the identity of the land in dispute. Reliance was placed on Babalola v. Alaoroko (2001) 5 MJSC 17. It was submitted that since the Appellant’s plan show that the land in dispute is at Owode/Tetiku and formed part of land originally belonging to the Odubaku family, the land is not the same land granted to the first defendant’s ancestors if any such land was granted. Counsel urged the court to hold that the defendants’ evidence which the Learned trial judge believed is not evidence about the land in dispute.

As regards the third issue appellant’s complaint relates to evaluation of the evidence adduced before the court. Learned counsel submitted that this evident from the record that the learned trial Judge did not evaluate the evidence before him by placing the entire evidence of the appellant alongside that of the Respondents particularly documentary evidence, including two certificates of occupancy and survey plans which were not challenged by the Respondents. That if the trial Judge had done so it could have assisted the court to see that the Appellant had enough acts of possession to maintain an action in trespass. That a trial court is not precluded from evaluating documentary evidence before it either by itself or alongside other evidence in the case in order to make finding of fact on issues before it. See:-WABL V. SVL (2002) 9 M.J.S.C. 141 at 158. That the court had a duty to properly evaluate the evidence before it. See:- Awopeju v. State (2002) 8 M.J.S.C. 45. That the Judgment should demonstrate proper understanding and consideration of the issues raised. See:- Udengwu v. Uzuegbu (2003) 9 M.J.S.C. 70. Learned Counsel further submitted that Appellant did not need to prove this title in this case since he is relying on two certificates of occupancy which were not challenged and evidence of adjacent parcel of land which he bought at the same time with the one in dispute. That he never joined issues on title. Reliance was placed on Moronkeji v. Adegbosin (2003) 12 M.J.S.C. 139. That even if the land both parties gave evidence about is the same the certificate of occupancy Exhibit E and E1 constitutes a better possession to the 1st Defendants’ so-called customary tenancy, on the land. That since Appellant has registered title documents which were not challenged, possession is to be presumed in his favour being an action in trespass. That the evidence was unchallenged and that the trial Judge ought to have accepted that Appellant had discharged the burden of proof. Reliance was placed on Blariko & Ors. v. Ogwuile (2001) 3 M.J.S.C. 1 at 25. Learned Counsel also contended that demarcation of land with surrey beacons or even pegs and cultivation of same are sufficient acts of possession. See:- Majekodunmi V. Abina (2002) 3 MJSC 41 at 56 and Adeniran V. Alao (2002) 1 M.J.S.C 1 at 16. Counsel urged the court to hold that the absence of improper evaluation of the evidence before the court has led to a miscarriage of justice against the Appellant.

In response, Respondents’ Counsel submitted that the contention of Appellant’s Counsel that the Learned trial Judge did not properly evaluate the evidence before him before deciding the case in favour of the Defendants/Respondents is not only erroneous but also misconceived.

Learned Counsel contended that the trial Judge evaluated the evidence of the Plaintiff and rightly held that the Plaintiff failed to establish possession and coupled with contradiction in their evidence before the trial Judge. Reference was made to page 122 lines 7 – 12 of the record and the amended statement of claim on page 17 – 19 of the record. The trial Judge also evaluated evidence of DW1, DW2 a boundary man and DW3 and held that the case of trespass alleged by the plaintiff is therefore not established. That the Learned trial Judge rightly believed the evidence of the respondents on possession which is not challenged or controverted materially. See:- Page 124 lines 11-15 of the record. That based on the available evidence the learned trial Judge found rightly for the Defendants.

Learned Counsel submitted that Appellant failed to establish his root of title. Apart from this the evidence of all the plaintiff’s witnesses demonstrate a sharp contradiction as revealed in the record that a man who is the plaintiff bought a land in 1976 and was farming since then, till the defendant started trespassing on the land in 1998 does not know his boundary men and none of his witness could identify the land and no root of title has been established to show that Appellant is the true owner. That Appellant had failed to show in what respect the trial court made a mistake or did not evaluate the evidence. That appellant cannot prove to have been in possession of the land and has no dominion over it to the exclusion of any other person, he therefore cannot claim earlier possession of such land. See:- page 98 line 14 – 25 of the record and Ekpechi v. Owhonda (1998) 3 NWLR (Pt. 543) 618 at 635. In Ekpechi v. Owhonda (supra), it was held that where a party woefully failed to prove his root of title, the statutory right of occupancy declared in his favour was without foundation whatsoever and must be set aside.

Learned Counsel further submitted that the learned trial Judge carefully evaluated the evidence of the appellant before arriving at the conclusion at page 121 line 9 and page 122 of the record that case of Appellant has failed ab initio. That the onus of proof is on the Appellant and he failed to discharge it. It is the duty of the Appellant to adduce evidence in proof of his claim, since it is him who would lose if no evidence is adduced. See:- Mogaji V. Odofin (1978) 4 SC 91 at 93. That the law is very trite that proof of issues in civil matters is on preponderance of evidence and when there is no evidence to put on one side of the scale, minimum on the other tilts the scale in satisfaction of the requirement. Counsel urged the court to dismiss the appeal.

Appellant’s Counsel had contended that the learned trial Judge did not resolve the issue of the identity of the land in dispute. From the pleadings, oral and documentary evidence adduced Appellant is claiming that the land in dispute is at Owode/Tetiku village. However, PW3 under cross- examination surprisingly stated that the land in dispute is at Agoro. Respondents on the other hand maintained in their evidence before the court that the land in dispute is situate at Agoro. From the available evidence it appears both parties are clear as to the identity of the land in dispute. I wish to note a portion of the testimony of the key witnesses PW6 and DW3.

PW6 who was the plaintiff stated at page 96 of the record as follows:-

“I know the defendants. The defendants are building on the land. I first noticed the activities of the defendants on the land in 1997. I first saw the 1st defendant and I challenged him. The First defendant led other defendants to the land”

DW3 as the 1st defendant at the tower court also stated at page 104 of the record as follows:-

“I know Adisa Fajimi. I knew him when he came to meet me on my farm. I know him as a surveyor. I was on my farm one day, when the plaintiff came to meet me there. I asked him what he wanted, he told me the land had been given to him by Odunbaku family for the services he rendered to them. I told him to go away from my land. He however told me he would take my land by force.”

It is also worthy of note that at page 104 of the record DW3 clearly stated the boundaries and distinctive features of the land he is claiming which can be identified without a survey plan. See:- Atolagbe v. Shorun (1985) 1 NWLR (Pt 360). Where parties are clear as to the identity of the land in dispute, the fact that different names are given to it or the area it is located cannot affect the case. See Anomire V. Anoyemi (1972) 1 All NLR (Pt.1) 101 and 113 and Makanjuola v. Balogun (1989) 3 NWLR (Pt 108) 192 at 204.

It is my considered view that the failure of the learned trial Judge to resolve the issue of identity of the land in dispute did not occasion any miscarriage of justice bearing in mind the circumstances of the case and the evidence adduced before the court. By the nature of the claim before the court the burden of proof was on the appellant as plaintiff to prove his root of title by cogent and credible evidence. Appellant failed to prove the title of the Odunbaku family whom he claimed sold the land to him. It is apparent that no valid title was passed to him. The Learned trial Judge accepted the traditional history offered by the respondents as cogent and credible. DW3 gave credible evidence that he inherited the land in dispute as such it did not belong to the Odunbaku family whom appellant failed to trace their root of title. PW5 in his testimony Confirmed under cross-examination that the 1st defendant inherited the land through his maternal grand father. It is not correct to say that the trial Judge did not evaluate the evidence adduced. Appellant relied heavily on the certificate of occupancy tendered in evidence. Since the origin of title is not valid the certificate of occupancy cannot save the situation as it has no foundation. See:- Ekpechi V. Owhonda (1998) 3 NWLR (Pt 543) 618 at 635. Certificate of occupancy is prima facie evidence of the title but not conclusive proof of title. See:- Ogunleye V. Oni (1990) 2 NWLR (Pt.135) 745. In Lawson & Anor V. Ajibulu & Ors (1997) 6 NWLR (Pt.507) 14 Ogundare, JSC said that:-

“Production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claims, he must go further to trace the root of his title to one whose ownership of the land has been established.”

See also Okunowo V. Molajo All FWLR (Pt 590) 1386 at 1396-1397.

The lower court put the evidence called by the appellant and Respondents on either side of imaginary balance and weigh them together as it was laid down in the locus classicus case of Mogaji & Ors. V. Odofin & Ors 1978 4 SC 91. The Learned trial Judge summed it up at pages 122 – 124 of the record as follows:-

“without doubt, plaintiffs pleading as filed is devoid of material facts necessary for the determination of the issue of title to this case. Whatever evidence given and or claim that the plaintiffs may have to the land in dispute has no foundation or basis in the pleadings. The plaintiff case has failed before it started. The law is trite, that you cannot put anything on nothing and expect it stand.

Since the plaintiff have failed to establish their title to one whose title to ownership has been established or have not make out any case or prima facie case, there would be no need to consider the defendants defence, particularly when they did not counter-claim. See:- Ajibona V. Kolawole (1996) 10 NWLR (Pt 496) 22. A plaintiff is to succeed on the strength of his own case. See:- Kodinlinye V. Odu 1935 2 WACA 336. Onuama V. Ezeokoli (2002) 5 V. WLN (Pt. 760) 303.”

As to whether the Learned trial judge did considered the oral and documentary evidence adduced by the appellant to establish his acts of possession, the answer could be found at page 124 of the record wherein the trial judge said:-

“Apart from 1st plaintiff’s evidence that he surveyed the land and sold portion of it to 2nd and 3rd plaintiffs at a time he cannot remember, there is no cogent and convincing evidence of possession. As a matter of fact, the plaintiff who testified to have bought the land measuring about 5 hectares in 1876. (sic) at the age of 16 years and has been farming the land since then does not know any of his boundary men. I found that incredible and unbelievable. There is also no cogent evidence of destruction of survey beacons. on the other hand, the evidence of the defendants on possession is not challenged or controverted materially. The evidence in my view is more believable and credible. 1st defendant has been known on the land for many years as per the unchallenged evidence of DW1, DW2, a boundary men and DW3. The case of trespass alleged by the plaintiffs is therefore not established. ”

From all what I have said, it is my conclusion that the learned trial judge properly evaluated the evidence of the parties adduced before the court and in my humble view correctly ascribed probative value to it. I find the decision not perverse as such I have no cause to interfere.

In the final analysis, I hold that this appeal is devoid of merit. It is hereby dismissed. The Judgment of the lower court delivered by Onafowokan J. on 27th day of October, 2004 in suit No. HCT/6/2001 is affirmed. N30,000.00 costs is assessed in favour of the respondents.

STANLEY SHENKO ALAGOA, J.C.A. OFR: I read before now the judgment just delivered by my brother Mshelia (JCA) and I am in agreement that the appeal lacks merit and should be dismissed. I dismiss same and abide by the order/s contained in the lead judgment.

MODUPE FASANMI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother Mshelia, J.C.A.

I agree entirely with the reasoning and conclusion that the appeal is devoid of merit. I too dismiss same and abide with the consequential orders made including the order on costs.

Appearances

Mr. Olumide Akinbiyi Absent though served For Appellant

AND

Mr. L.O. Ogunleye:- absent though served For Respondent