ALHAJI CHIEF IBRAHIM ADEDIJI V. MR. A. A. KOLADE & ANOR (2012)

ALHAJI CHIEF IBRAHIM ADEDIJI V. MR. A. A. KOLADE & ANOR

(2012)LCN/5306(CA)

In The Court of Appeal of Nigeria

On Monday, the 23rd day of April, 2012

CA/IL/M52/2008

RATIO

LAND LAW: BURDEN OF PROOF IN CASES OF DECLARATION OF TITLE TO LAND

It is now firmly established on a plethora of decided cases too numerous to mention and learned counsel for the respective parties are ad idem that in an action for declaration of title to land (in this case the Customary Right of Occupancy to the land in dispute), the onus is on the plaintiff to establish his title to the satisfaction of the Court with utmost credibility and on the preponderance of the witnesses evidence. In so doing, he must rely on the strength of his own case and not on the weakness of the Defendant’s although where the case of the defence supports that of the plaintiff, the plaintiff is entitled to rely on same in support of his (plaintiff’s) cases. See the celebrated case of Kodilmiye v. Odu (1935) & WACA 336; Okulate v. Awosanya (2000) 2 NWLR (pt. 646) 530; Archibong v. Ita (1935) 14 WACA 520 INEC v. Oshiomhole (2009) 4 NWLR (Pt. 1132) 607 at 662; Fayemi v. Oni (2009) 7 NWLR (Pt.1140) 223 at 269; Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517 at 529-530.

In this regard, the dicta of Chukwuma- Eneh, JSC; Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332 at 378; where he held that:

“In all cases of declaration of title to land the burden of proof lies on the plaintiff to prove his case by credible evidence in line with his pleading and his case will collapse if he fails to discharge that duty. The burden rests squarely on a plaintiff seeking a discretionary relief of declaration of title to land and the burden is a heavy one as he must establish by evidence called by him to the satisfaction of the Court that he is entitled to such a declaration. The plaintiff must rely on the strength of his case to succeed and not on the weakness of the defence case that is merely to serve as a defence”; Onu JSC’s decision in Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 at 373; where he also held thus:

“A plaintiff who claims a declaration of title to land has a compelling duty to establish his case by credible evidence to the satisfaction of the Court, the weakness of the case of the Defendant will not avail him…” and also Akinduro v. Alaya (2007) 15 NWLR (Pt.1057) 312; are all very instructive and germane to the facts and circumstance of this case and we are most guided by them.

It has also been held that the above principle places the onus or burden of proof on the plaintiff until it is completely and successfully discharged before the onus shifts to the Defendant in that the burden of proof in civil matters oscillates back and forth until fully discharged on the pleadings. See the dictum of Fatayi-Williams in Idundun v. Okunmagba (supra) which was adopted in the case of Baba Iya v. Sikeli (2006) 3 NWLR (pt.968) 508 at 527-528 para. F-A; and sections 131(1) and (2), 132, 133(1) to (3) and 134 of the Evidence Act, 2011. PER IGNATIUS IGWE AGUBE, J.C.A.

EVIDENCE: WHETHER A DEFENDANT IS OBLIGED TO CALL EVIDENCE BEFORE A DECLARATION CAN BE REFUSED

The law is trite that the Defendant is not obliged to call evidence at all because a declaration cannot be granted without the plaintiff calling evidence even where the Defendant fails so to do. See Dim v. Enemuos (2009) 10 NWLR (pt. 1149) 353 at 394-395 paras. G-B. PER IGNATIUS IGWE AGUBE, J.C.A.

LAND LAW: DUTY OF A PLAINTIFF SEEKING TITLE TO LAND

Also going by the above Supreme Court authorities and others like Mogaji v. Cadbury (Nig) Ltd. (1985) 2 NWLR (Pt. 7) 393; Atuanya v. Onyejekwe (1975) 3 S.C. 393; Lawal & ors. v. Olufowobi & ors. (1996) 12 SCN7 376 at 384 and Salami v. Lawal (2008) 36 NSCQR 1018; where a plaintiff seeks title to land he must plead and prove the root of his title and where he traces his root of title to his ancestor he must also plead how his said ancestors or family acquired the title and prove by credible evidence the intervening owners through whom he derived such title id est the origin of the land to the exclusion of the Defendant and how the land eventually devolved to him. PER IGNATIUS IGWE AGUBE, J.C.A.

LAND LAW: WAYS OF PROVING TITLE TO LAND

By traditional evidence;
By production of documents of title duly authenticated and executed;
By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of ownership;
By acts of possession and enjoyment and;
Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. See further Omeregbe v. Idugiemwanye (1985) 2 NWLR (pt. 5) 41, Mogaji v. Ladbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 373; Ezeoke v. Nwagbo (1988) 2 NWLR (pt.72) 616; Fasaro v. Beyioku (1988) 1 NWLR (pt. 78) 269 Okpuruwa v. Chief Okpokam (1988) 4 NWLR (pt. 90) 554 and Salami v. Lawal (2008) 36 NSCQR 1018 at 1047-1048. PER IGNATIUS IGWE AGUBE, J.C.A.

JUSTICES:

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria

Between

ALHAJI CHIEF IBRAHIM ADEDIJI Appellant(s)

AND

1. MR. A. A. KOLADE
2. CHIEF I. O. AJAYI Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated and filed on the 23rd day October, 2002, in the High Court of Justice Kwara State, in the Offa Judicial Division, Holden at Offa; the Plaintiffs (now Respondents) on behalf of themselves and Oluawo “Family of Ijagbo claimed against the Appellant (the 1st Defendant in the Court below) for the following Reliefs:
i. Declaration that the plaintiffs are entitled to a Right of Occupancy over that parcel of land, lying being and situate at Oluawo family land, Offa-Ajase Ipo Road, Ijagbo, Oyun Local Government Area.
ii. Declaration that the Customary Right of Occupancy No. OYLG/LUD/CR of 0/320 granted to the Defendant is null and void.
iii. AN Order setting aside the said Customary Right of Occupancy and ordering a rectification of the register.
iv. N100,000.00 (One Thousand Naira) damages for trespass committed by the Defendant on the said parcel of Land.
v. Perpetual injunction restraining the Defendant whether by himself, servants, agents and/or privies from committing further acts of trespass on the said parcel of Land.
By an Amended Writ of Summons dated the 11th of February, 2003, the Respondents joined the Oyun Local Government as the 2nd Defendant and thereafter filed a Statement of Claim dated 3rd March, 2003. The 1st Defendant (the Appellant herein) filed his Statement of Defence dated the 8th of May, 2003 the same day.
Pursuant to an order of the Trial Court, the Respondents filed an Amended statement of claim on the 28th of January, 2005 in consequence upon which the Appellant filed a Reply to the Amended Statement of Claim. Thereafter, the court proceeded into hearing of the matter whereat the Respondents called four (4) witnesses while the Appellant called five (5) witnesses with himself inclusive. The Court after hearing all parties gave judgment for the Respondents on the 23rd of October, 2007. Pages 190-207 of the Records refer.
The Appellant, being dissatisfied with Decision of the trial Court, filed a Notice of Appeal in this Honourable Court on the 12th day of December, 2007, with three Original Grounds. With the leave of this Honourable Court granted on the 20th January, 2009, the Appellant further filed five (5) Additional Grounds of Appeal. The Record of Appeal was deemed to be properly complied and transmitted to this Honourable Court on the 20th of January, 2009.
Upon receipt of the Record of Proceedings from the lower Court, and consistent with the Rules of this Honourable Court, the following two Issues were formulated for determination in the Brief settled by R.A. Rabana, SAN; on behalf of the Appellants couched as follows:-
i. WHETHER THE PLAINTIFFS/RESPONDENTS SHOWED BY CREDIBLE EVIDENCE THAT THE DEFENDANT/APPELLANT’S GRANTOR WAS A CUSTOMARY TENANT.
ii. WHETHER THE EVIDENCE OF THE PW1, PW2 AND PW3 ARE CREDIBLE TO SUPPORT THE PLAINTIFF’S CLAIM.
It would be recalled that the learned counsel for the Respondents by a Notice dated 10th of February, 2010 and filed on the 16th of February, 2010; raised a Preliminary objection to the competence of the Grounds of Appeal pursuant to Order 10, Rule 1 of the Court of Appeal Rules, 2007. We shall come to the Preliminary objection before resolving the issues but suffice it to state that in the alternative, the Respondents in the Brief settled by Sikuru O. Adewoye Esq.; distilled a solitary issue for determination couched in the following terms:
1. WHETHER THE JUDGMENT OF THE LOWER COURT SHOULD NOT STAND IN VIEW OF THE STATE OF THE PLEADINGS AND THE TOTALITY OF THE EVIDENCE ADDUCED BY THE PARTIES?”
2. APPELLANTS’ ARGUMENTS IN SUPPORT OF ISSUES

ISSUES ONE:
– WHETHER THE PLAINTIFFS/RESPONDENTS SHOWED BY CREDIBLE EVIDENCE THAT THE DEFENDANT/APPELLANT’S GRANTOR WAS A CUSTOMARY TENANT?
The learned senior counsel began his argument on this issue by alluding to the plaintiffs’ evidence that the Defendants’ grantor has been on the Land in dispute since 1972 and the evidence of the Defendant on the other hand that the grantor claims it was since 1952 up tit date. The learned SAN further alluded to the further claim by the plaintiffs that the Defendant’s grantor is a customary tenant which the trial court upheld adding that there was no evidence at the trial to show that the Defendants, grantor is a customary tenant by way of paying rent, tribute, royalty or even by acknowledging them as his Landlords.
He then submitted that it is clear on the face of the record of proceeding at page 164 where the PW2 testified as to whether the DW1 paid rent to the Plaintiffs, that facts admitted need no further proof. We were referred to the case of NTUKS v. NPA 2007 13 NWLR Pt. 1051 page 392 at page 24; to buttress that submission.
The learned Senior Counsel also submitted that in the same vein, evidence not supported by pleadings goes to no issue and as such the Pw1’s evidence contained in page 57 of the record of proceedings goes to no issue. The same is said to apply to the evidence of the PW3 in this respect adding that it is a trite law that parties are bound by their pleadings and evidence led on un-pleaded fact goes to no issue and should be disregarded. Reliance was placed on the decision of Onu JSC in the case of Ojoh v. Kamalu (2005) 18 NWLR (pt. 958) 523 at pages 548-549 paragraphs F-A and also Kayode v. Odutola (2001) 11 NWLR (Pt. 725) 659; for this submission.
It was his further submission on the authorities of Ag. Levant’s Nig. Plc. V. Akpu (2007) 17 NWLR Pt. 1063, page 416 at page 440 paragraph G-H and also Thompson v. Arowolo (2003) 4 SC. Part II, page 108 at 131; that where inadmissible evidence had been admitted, it is the duty of the Court not to act upon it. The learned Senior Counsel further submitted that upon the assumption without conceding that the 1st Defendant’s grantor, the DW1 is a customary tenant, by the operation of section 146 of the Evidence Act, the Law still presumes the Defendant/Appellant to be the owner of the Land until the contrary is proved. For this submission we were referred to the case of Babatunde v. Akinbade (2006) 6 NWLR (pt. 975) page 44 at 60; paragraph C-E.
Still on this issue, he argued further that the law presumes the person in possession of Land to be the owner and in order to displace a party in possession, the plaintiffs must show that the Defendants are on the Land with his consent as tenant; more so, by the operation of Section 36(4) of the Land Use Act, where a land is developed, the Land shall continue to be in possession of the person in whom it is vested immediately before the commencement of the Act as if the holder was the holder of a Customary Right of Occupancy issued by the Local Government. See Teniola v. Olokunkun (1999) 5 NWLR part 602 page 280 at 297 paragraphs A-D also Jiwul v. Dimlong (2003) 9 NWLR (part 824) page 154 at 192.
This position of the Law he asserted, presumes DW1, the Defendant’s grantor, as the rightful owner and places a burden to prove a better title on the plaintiffs/Respondents and that the learned trial Judge seemed oblivious of this trite law when he held as he did on page 196 of the record of proceedings when there is no evidence to show that there was act of ownership nor control from the Plaintiffs Family from the alleged 1972 to the year 2001 when the DW1 (the Defendant’s grantor), had sold part of the Land to the 1st Defendant who had started pulling up a structure on the said land.
The learned Counsel for the Appellants took the view on the authority of Abudu v. Eguakun (2003) 14 NWLR (part 840) page 311 at 322; per Musdapher, JSC; that it is trite that the law presumes that the long enjoyment by a party in possession of land indicates that his rights have a legal origin, more so when the party has been in possession nec Clam, necvi, nec precario. It was also his submission that the case of Bamigbose v. Oshoko (1988) 2 NWLR part 78, 509, page 532 or (1988) 5 SCNJ page 776 referred to by the learned trial judge was used out of context since the said case is not of the same facts with the instant case. In the afore stated case, it was the evidence of the PW2 that the land in dispute was allotted to his father by the family while in the instant case the DW1 gave direct evidence that he purchased the said land from the Oluawo Family, whom he claimed transferred absolute ownership to him. His evidence was also corroborated by the DW2 and DW3 and from the fore going we were urged to hold that the case of Bamigbose v. Oshoko is not relevant to the instant case.
From the evidence of the Plaintiffs’ witnesses and that of the Defendant’s, the learned Senior Advocate posited; it was obvious that no rent, tribute nor royalty was ever paid by the DW1 to the plaintiffs’ family and it was therefore wrong for the learned trial Judge to have concluded that the Dw1 was a customary tenant.
We were therefore urged to hold that the plaintiffs/Respondents failed to show by credible evidence that the Defendant/Appellant grantor was a customary tenant.

ISSUE TWO: WHETHER THE EVIDENCE OF THE PW1, PW2 AND PW3 ARE CREDIBLE TO SUPPORT THE PLAINTIFFS CLAIM?
On this Issue the learned SAN referred to the crucial question identified by the learned trial Judge for determination as to whether Mr. Yawota is a customary tenant of the Plaintiff or he is a purchaser; and the attempt by the trial Judge to resolve this issue by considering the evidence of the parties to the dispute with specific reference to the evidence of the PW1, PW2 and PW3 as well as those of the Defendant’s witnesses in coming to the further conclusion that the evidence of the Dw2 and Dw3 are incredible, which natural implication is that he preferred the evidence of the plaintiffs’ witnesses.
He then posed the question whether the claim of the plaintiff can be supported by the foregoing pieces of evidence and submitted that the evidence of the plaintiffs’ witnesses are incredible in view of the fact that the second plaintiff i.e. PW1 and PW2 are not eyewitnesses as far as the transaction between the plaintiffs’ family and the Defendant grantor i.e. Dw1 is concerned. Consequently, he further argued, their entire evidence in that regard amount to hearsay and are unreliable. References were then made to the case of Yusuf v. Obasanjo (2005) 18 NWLR (part 956) page 96 and Sections 76 and 77 of the Evidence Act.
It was the Learned Senior Counsel’s further submission that as regards the Pw3, the Court is not entitled to rely on his evidence, as it will amount to picking and choosing from the evidence of witnesses contrary to the rules of evidence for according to him, the learned trial Judge after considering the evidence of the Pw3 on page 193 of the Record of proceedings where he stated thus:
“Pa Thomas Adepoju re-emphasized the decision of Oluawo’s Compound that the land being given to him is allocated to him as a tenant or allottee”; concluded that Dw1 is a customary tenant.
The learned SAN pointed out that the above piece of evidence is contradictory and consequently not reliable and further referred us to Black Law Dictionary, 6th Edition, which defines the following words, ‘Allocation’, ‘Assignment’, Allotment’, ‘Allottee’ and ‘Tenant’ as follows:
Allocation: Assignment of Allotment,
Assignment: Act of transferring to another all or part of one’s property interest, or rights.
Allotment: The distribution of land an enclosure.
Allottee: one to whom land under an allotment i.e. person to whom land under an enclosure act or shares in a corporation or public undertaking are allotted.
Tenant; One who holds or possesses land or tenements by any kind of right or title; whether in fee, for life, for year, at will or otherwise.
From the afore stated definitions, he noted that it is clear that the piece of evidence given by the PW3 is contradictory and ambiguous and it was therefore wrong for the learned trial Judge to choose that DW1 was a customary tenant which amounts to picking and choosing, and rationalizing the evidence of the witness in order to arrive at a preconceived conclusion, which the courts frown at. The cases of Ajudua V. Nwogu, (No. 2) (2004) 16 NWLR (Part 898) page 56 and Nwosu v. State (1986), 4 NWLR, Part 35, page 348; were cited in support of the above submissions.
The learned Senior Counsel asserted still on the evidence of the plaintiffs and their witnesses that where there is such a material variance or inconsistency in the testimony of a witness, the witness is treated as unreliable and urged us on the authorities of Agbo v. State (2006) 6 NWLR (part 977) page 545 at 583 and C & C Constr. Co. Ltd v. Okhai (2003) 12 SC (part 1) page 131 at 139; to so hold. Further reference was made to page 194 of the Judgment under appeal and the holding of the learned trial Judge therein; submitting that rather than relying on the evidence of the Plaintiffs to sustain their claims, the learned trial judge placed reliance on the weakness of the Defendant’s defence.
The point was then canvassed in this respect that this procedure is inconsistent with the established rules in Land law citing with approval the authorities of Yusuf v. Adegoke (2007) 11 NWLR Part. 1045 page 332 at 378; per Chukwuma – Eneh, JSC; Gbadamosi v. Dairo (2007) 3 NWLR part 1021 page 282 at 373; per Onu JSC’s and also Akinduro v. Alaya (2007) 15 NWLR Part 1057 Page 312.
The Learned Senior Counsel again opined that the presumption of the law enures in favour of the Defendant/Appellant, as the Plaintiffs/Respondents have failed woefully to provide credible evidence to support their claim adding that the learned trial judge made a heavy weather out of the evidence of the DW2 and DW3, and discredited same on mere discrepancies as to their age which does not affect the substance of their evidence. On discrepancies, the learned SAN posited that the Defendant’s witnesses remained consistent and unshaken on their evidence as regards the transaction as to the sale of the land in dispute. He referred us to the dictum of Omokiri, JCA; in Idiok v. The State (2006) 12 NWLR, (pt. 993) 1 at 21-22 and also Akpa v. State (2007) 2 NLWR. (pt. 1019) 500 at 520-521; where the difference between contradiction and discrepancy were defined to urge us to hold that the minor discrepancies in the evidence of the Dw2 and Dw3 as to their age are immaterial since they do not affect the substance of their evidence.
He insisted that the learned trial Judge also failed to consider the evidence of Mr. Bello Yawota contained on page 61 of the record of proceedings and rounded up his argument on this Issue by submitting that by the provision of Section 97(1)(c) of the Evidence Act, the above piece of evidence is admissible since the original receipt could no longer be found, therefore the trial court was wrong when he held that there was no evidence to support the claim that the land was sold to the Dw1, the Defendant’s grantor by the plaintiffs family. We were then urged to allow the Appeal in the interest of justice.

RESPONDENTS’ ARGUMENT
PRELIMINARY OBJECTION
It would be recalled that the learned Counsel for the Respondents as earlier stated filed a Notice of Preliminary Objection to the competence of the Appellant’s Grounds of Appeal as well as the issues formulated there on. The Grounds upon which the Objection is predicated are stated as follows:
1. The Appellant filed two separate grounds of appeal;
2. The Appellant did not pay or could not have paid for the Additional Ground of Appeal filed separately;
3. The Additional Grounds of Appeal amended the Original Notice of Appeal; and
4. None of the issues formulated in the Appellants’ Brief of Argument was linked with or hinged on any Ground of Appeal.
In support of the Notice of Preliminary Objection, the learned Counsel to the Respondents proffered arguments as incorporated in page 4 paragraph 3.01-3.02 to page 6 paragraphs 3.03 – 3.08 of the Appellant’s Brief.
Arguing the Preliminary Objection, the learned Counsel submitted that the two issues formulated by the Appellant and upon which the arguments were proffered were not related to or linked with any of the grounds of appeal and any issue for determination not linked on a ground of appeal is incompetent and would be struck out. Chime v. Chime (2001) 3 NWLR (pt. 701) 527 at 550 para. A; was cited to further submit that it is the responsibility of the Appellant to demonstrate in his brief of argument which of the grounds of appeal the issue formulated arose from and not for the Court to do this for him otherwise it would amount to a situation where the Court is making a case for a party and which temptation this Honourable court will refrain from.
The learned Counsel maintained that the position of law is settled that where an issue for determination does not arise or flow the grounds of appeal, arguments being proffered on the issue(s) will be discountenanced. For this submission he relied on the case of Pan African Bank Ltd. v. Ubani (1999) 13 NWLR (Pt. 633) 174 para. H and urged us in view of the foregoing, to discountenance all arguments in respect of the two issues for being incompetent.
It was his further submission that the Notice of Appeal upon which the appeal ought to have stood is grossly incompetent and cannot ground any appeal. He noted that the Appellant filed his original Notice of Appeal on the 12th day of December, 2007 (see page 210-212 of the record); and the Appellant filed a motion dated 10th day of November, 2008 to which he exhibited a document titled Additional Grounds of Appeal. On the 20th day of January, 2009, this Honourable Court granted the said application seeking leave to file Additional Grounds of Appeal and accordingly the effect of the motion under reference is that of an amendment of the Original Notice of Appeal. He then submitted that it has been held that an amendment also constitutes an addition to the existing cause of action of facts as in the instant appeal.
Relying on the case of Ipadeola V. Oshowole (1987) 3 NWLR (Pt. 59)?; the learned counsel for the Respondents again contended that since the Court of Appeal has jurisdiction to amend a Notice of Appeal as done by this court, any Amended Notice of Appeal made with the leave of the Court replaces the Original Notice of Appeal filed. The case of Anakism v. UBN Ltd. (1994) 7 NWLR (Pt. 922) 566 paras. G-H.; was further relied upon in submitting that the situation is however different here as Appellant herein has two distinct and independent notices of appeal, that is, the one of 12-12-07 and the one deemed filed by the order of court dated 20-01-09 but titled “Additional Grounds of Appeal”.
The learned counsel for the Respondent took the view that the two processes aforesaid cannot exist simultaneously in the absence of an Amended Notice of Appeal that will incorporate the grounds of appeal contained in the two processes. He insisted that there is no competent Notice of Appeal upon which the Appellant’s appeal can stand. In other words, the two processes filed in the name of Notices of Appeal constitute an abuse and this Honourable court is urged to so hold and accordingly dismiss the appeal for incompetence.
What is more, he further contended; there is nothing to show on the Additional Grounds of Appeal that it was paid for at the Registry as it bears no cashier’s stamp as evidence of payment for according to him, it probably was paid for as an exhibit attached to the motion of 10-11-2008 and filed on 11/11/08. It was therefore his submission that failure to pay requisite fees in respect of a court process renders such a process incompetent. Onwugbufor V. Okoye (1996) 1 NWLR (Pt. 424) 252 at 292; refers.
He submitted finally on the Preliminary objection, that once a court is satisfied that the proceedings before it is an abuse of its process, that court has the right and in fact a duty to invoke its coercive powers under section 6(6)(a) of the 1999 Constitution to dismiss the action. Owonikoko v. Arowosaiye (1997) 10 NWLR (pt. 523) 67, was then relied upon to urge us to dismiss the appeal by reason of incompetence based on the foregoing submissions.

ISSUES FOR DETERMINATION: In the alternative, and assuming the Appellant’s preliminary objection were to be overruled, the Respondents proceeded to argue on the solitary issue for determination as to whether the judgment of the lower Court should not stand in view of the state of pleadings and the totality of the evidence adduced by the parties.
According to learned Counsel, the issue relates to the quality of evidence of the Respondents as plaintiffs at the lower Court as well as the probative value of the testimonies of PW1-PW4 as contained in pages 56-59, 82-86, 154, 157-162 of the Records. The learned counsel added that the issue also touches on the Appellant’s state of pleadings, the averments therein as contained on pages 40-42 of the record being at variance with the evidence of DW1-DW4 and the 1st Defendant’s testimonies contained in pages 168-169 of the Record as well as Exhibit 3 tendered, particularly Exhibit 3(a) (b) (c) and (d) that is, the Sale Agreement between the 1st Defendant and his vendor – Bello Yawota who gave evidence as Dw1. The lower Court in its Judgment he further noted made copious findings on these apparent variations in pleadings and evidence.
Other contradictions, inconsistencies, absurdities and variations, which the learned Counsel noted that the lower court particularly found on pages 56, 57, 59 and particularly on page 61 of the record were highlighted as giving a succinct account of the debilities in the case of the Appellant at the lower Court and for which reasons the lower court granted the claim of the Respondents as the plaintiffs at the lower court based on the credible and reliable evidence of the plaintiffs’ witnesses.
On the argument of the Appellant in his Brief under Issue One where he alluded to the fact that the Respondents did not give evidence to show that the Appellant’s vendor is a customary tenant, learned Counsel argued that a clear perusal of the claim of the Plaintiff as well as their evidence during the trial shows that Appellant’s vendor at all times material to the action was a mere allottee who was merely enjoying a gratuitous grant at the pleasure of the Respondents’ family and as such he has no power or authority to alienate the land to a third party.
He then submitted that the relevant issue is whether Appellant’s vendor is a bona fide owner of the land and not whether he pays rent or dues on the allocation, adding that the contention of the Respondents is that the Appellant is an allottee whose possession of the disputed land is at the mercy of the Respondent’s family. To buttress this contention he alluded to the Respondents’ averments in paragraphs 16 and 17 of the Amended Statement of Claim and their evidence-in-chief where the Respondent’s witnesses were ad idem as to the nature of the Appellant’s Vendor’s right over the land in dispute. (Pages 161, 164 and 166 of the Records refer).
The learned Counsel also drew our attention to the finding of the learned trial Judge at page 195 of the Records having weighed the pieces of evidence against the competing claim of the Appellant submitting and urging us to hold that even in the face of the Appellant’s Vendor’s non payments of rents or tributes to the Respondents family since his occupation of the land; that itself does not confer on him any right whatsoever to alienate the land since contrary to his claim, he could not demonstrate that he validly purchased the land from the Respondents’ family. He maintained that in the circumstance, notwithstanding whatever nomenclature is given to the Appellant’s vendor either by the Court or the Respondents; same does not derogate from fact that he has no valid title, which he can in turn pass to the Appellant.
Still on the status of the Appellant, learned Counsel relied on Ajao v. Obele (2005) 5 NWLR (Pt. 918) 400 at 427; to submit that the payment of rent of dues is not a condition precedent to the proof of validity of a customary tenancy.
On the contention of the Appellant in page 3 of his Brief of argument that the evidence of PW2 and PW3 is an admission; he argued per contra that the evidence of PW2 and PW3 quoted in the pages of the brief do not derogate from the fact that the Appellant’s vendor is a mere allottee with or without payment of rent or dues as can be gleaned from the unshakeable evidence of the PW3 at page 83 of the Records which according to him is the best direct evidence as contemplated by the provisions of Section 77 (a) and (b) of the Evidence Act and which no court can choose to ignore. He asserted further that irrespective of the purport of the evidence of PW2 and PW3 quoted under issue one, it cannot substantiate the fact that the Appellant’s vendor is not in the category of a customary tenant and a-fortiori, the issue of admission canvassed by the Appellant in his brief of argument should be discountenanced as irrelevant to the just determination of this appeal.
What is more, he maintained, it is the finding of the lower Court that there is no evidence that the plaintiffs’ family has divested itself of ownership to the disputed land by sale to the DW1 and further that the only reasonable conclusion that may be made is that DW1 cannot be a purchaser since he could not present any receipt or document to evidence the outright purchase of the land. Furthermore, the learned trial Judge was said to have stated that the fact that the Appellant is not paying rent notwithstanding, he is at best a tenant-at-will enjoying gratuitous grant which of course did not remove him from the category of a customary tenant. He therefore maintained that it is not the correct position of law that rent or dues must be paid before a customary tenancy can be established. Ajao v. Obele (2005) 5 NWLR (pt. 918) pg 421, Paras. A-D and page 194 – 195 of the Record of Proceedings referred.

VARIATION BETWEEN EVIDENCE AND PLEADING
Reacting to the contention of the Appellant in page 4 of his Brief of Argument that the evidence of PW1 and PW3 are at variance with the pleadings of the plaintiffs and therefore go to no issue; it was further submitted per contra that the evidence of Pw2 and Pw3 are perfectly covered by the pleadings. He asserted that the evidence quoted was given in proof of averments in paragraphs 19, 29 and 30 of the Amended statement of claim (see pages 51 and 52 of the record) and also as an evidence in rebuttal of the Appellant’s pleadings as contained in paragraphs 4 and 6 of the Appellant’s statement of Defence (see pages 40 and 41 of the record); arguing further that evidence has no place in pleadings but statement of facts on which the evidence can stand.
Placing reliance on Monier Construction v. Azubuike (1990) 3 NWLR (pt. 136) 74; the learned counsel for the Respondents argued that what the Appellant complains of, need not be pleaded as they constitute evidence of the statement of facts lucidly accentuated in paragraphs 19, 29 and 30 aforesaid for it is the settled position of the law that when a state of fact is relied on, it is enough to allege it simply in the pleading without setting out the subordinate facts which are the means of proving it, or the evidence sustaining the allegation. Thus, he continued, it is not necessary for a party to state in his pleadings the subordinate fact which is the means of proving the material fact pleaded. Nwanyi v. Coastal Service (Nig) Ltd (1999) 11 NWLR (Pt. 628) 65 refers.
Learned counsel also reflected further still on the above contention of the Appellant which he submitted, borders on the rebuttal evidence of the respondents, pleadings aforesaid and in this connection, the complaint of the Appellant is unmeritorious having regard to the settled principle of law that a party is entitled to lead evidence on the pleading of the other party. Moreover, he added, the law is that since parties are bound by their pleadings, it cannot be argued that a party who has pleaded certain facts could fairly complain that it had any embarrassment or was taken by surprise if evidence were led on such pleadings by the other party. He then cited the case of Makinde V. Akinwale (200o) 2 NWLR (pt. 645) 456 para. E; to round up his arguments on this aspect of the sole issue and to urge us to hold that the Judgment of the lower court was comprehensively based on admissible evidence in proof of the Respondents’ claim at the lower court.

PRESUMPTION OF OWNERSHIP/LONG POSSESSION
In respect of the position of the Appellant that possession is a presumption of ownership by virtue of the provisions of Section 36(4) of the Land Use Act; it was submitted that the Appellant did not appreciate the tenor and intendment of the provisions of the said Act notwithstanding the acquisition of a Customary Right of Occupancy by the Appellant.
Learned Counsel for the Respondents posited further that no presumption of ownership enures in favour of DW1 as the Appellant’s vendor as the correct position of the law is that a Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof and such a certificate also raises the presumption that at the rime it was issued there was not in existence a customary owner whose title has not been revoked. However, the learned counsel for the Respondent further posited, the presumption is rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy, then the court can revoke it.
For this submission, the case of Osazuwe v. Ojo (1999) 13 NWLR (Pt. 634) 291-292 paras. H-A; was further cited to contend that even though by virtue of section 146 of the Evidence Act, the presumption of ownership is in favour of a party in possession such presumption cannot stand when a party in the position of the Respondents herein against whom it is sought to be raised proves good title. Referring us again to Okwaranobi V. Mbadugba (1999) 7 NWLR (pt. 558) 483 paras. A-B learned Counsel further took the view that the Appellant’s vendor (DW1) does not qualify for any presumption of ownership in his favour for the following reasons:
i. The Certificate of occupancy was not properly issued; and
ii. At the time it was issued there was in existence Plaintiff’s family as the customary owner whose interest has not been revoked;
The foregoing reasons according learned Counsel, rebutted the presumption of ownership as the lower court concluded in its judgment when it so held at pages 199 and 200 of the Record of proceedings.
On the issue of long possession, the learned counsel for the Respondent relied on the authority of Sosa v. Fokpo (2000) 20 WRN P. 92 paras 40; and reiterated that the Appellant will still not succeed even if his possession was traced to 1952 albeit, impossible; as the law is settled that possession though the essence of customary tenancy, it cannot conclusively show that the tenant in possession is the absolute owner of the land he possesses. More so, he maintained it is the case of the Appellant that his vendor purchased the land which evidence of purchase he could not produce and as such, the defence of long possession is not even available to him as he must sink with the failure of proving his title to land by sale and not by customary tenancy.
Learned counsel further canvassed the point that allowing the Appellant to raise the defence of long possession amounts to approbation and reprobation notwithstanding the lower court’s finding that the Appellant’s vendor is a customary tenant. By reason of the foregoing, he further argued, the Appellant has, by their brief of argument, sought to make a case in this appeal diametrically opposed to the case he strenuously espoused in the lower court that is, a purchaser for value which is odd and should not be permitted. For this submission he placed reliance on Akuneziri v. Okenwa (2000) 15 NWLR (Pt. 691) 526 and 551.
We were then urged to resolve the issue of presumption of ownership against the Appellant and discountenance all the arguments and authorities cited as irrelevant in the just determination of this appeal.
Reacting to the argument of the learned Counsel to the Appellant that there exists neither evidence to show that there was any act of ownership nor control from the Plaintiffs’ family since the time the Appellant’s vendor got to the land and when he sold the land to the Appellant, he submitted that apart from the evidence given by the Respondent’s witnesses on the fact that the DW1 (Appellant’s vendor) has not had any occasion to challenge their title in times past, the DW1 himself under cross examination stated that in 1982 when he dug a pit on the land he was cautioned by the family and he had to move elsewhere and that when he buried a corpse on the land in 1985 the Respondent’s family complained and he had to appeal to them.
He then referred us to page 173 of the Records in submitting that these pieces of evidence are nothing but a clear affirmation on the part of the DW1 (Appellant’s vendor) that he does not enjoy absolute control over the land in dispute rather, the Respondent’s family at all items material to his occupation of the property exercised a modicum of control over the land.

CREDIBILITY OF THE EVIDENCE OF PLAINTIFFS’ WITNESSES
On the contention of the Appellant in this regard that the lower Court ought not rely on the evidence of the Respondents’ witnesses as plaintiffs before it on the grounds of incredibility, contradictions and/or ambiguity of evidence with definition of words in Black’s Law Dictionary as well as reliance on the weakness of Appellant’s case; the learned Counsel to the Respondents was of the view that the contentions of the Appellant aforesaid smack of a sheer lack of understanding of the case fought at the lower Court and the duty of the trial Court in the evaluation of evidence.
It was then contended on the authority of Ochin v. Ekpenechi (2000) 5 NWLR Pt.656 p. 242 para E-F; that although there are procedural rules in respect of the evaluation of evidence, the Judge who is the master of his court can hardly be faulted if the procedure he adopts in his evaluation is consistent with his role as an independent umpire, holding the balance evenly between the parties. He asserted further that the contentions of the Appellant on pages 7 and 8 of his brief in so far as they relate to the complaints that the evidence of PW2 on allotment is contradictory of the definitions offered by the Black’s Law Dictionary and that the lower Court picked and chose from the evidence of witnesses, are neither here nor there more so, as details were not given of these complaints of evidence of picking and choosing in the brief of argument for the Respondents to be apprised of them accordingly.
Learned Counsel conceded that there is no doubt that a trial Judge has no jurisdiction to pick and choose evidence of a witness in Court as a witness is either believed or disbelieved and the belief or disbelief must be borne out of the totality of the evidence. The case of Godwin James Udoh v. The State (1994) 2 NWLR (Pt. 329) 683-684 paras. H-A; was cited to further argue in this respect that the scenario purportedly painted by the Appellant in his brief of argument never existed rather, the lower Court based its conclusion on the totality of Evidence of PW1, PW2 and PW3 and believed their testimonies, hence the lower court’s conclusion in its Judgment at pages 192 and 195 of the Records.
Apart from the above findings, the learned Counsel for the Respondent noted that it is abundantly clear that on the facts of the Appellant’s pleadings via his Statement of Defence, issues were not joined as to the over lordships of the Respondents’ family over the land in dispute and the position of the Respondent as principal members of the family who exercise control over the land in dispute. According to him, all relevant pleadings in respect of this by the Respondents were admitted by the Appellant by paragraph 1 of his Statement of Defence (page 40 of the Records refer) and in the circumstance the position of the law is settled that the Respondents herein have but little effort to make in establishing their claim.
Even in declaration of title to land as it is herein, he further observed; whatever is admitted need no further proof (Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298 at 337 para. D); and that being the case, and the Appellant having admitted the over lordships of the Respondents, he is the one whom the law now places an herculean task upon to show that he had been validly vested with title to the portion by the Respondents or their privies and this he failed woefully to do at the trial of the suit.
Still on the evidence of the Plaintiffs’ witnesses, it was submitted further that the testimonies of PW2-PW3 are complementary and corroborative of one another and devoid of conflict and contradictions and are therefore credible and reliable hence the premium and reliance placed on it by the lower court. Okwaranonobi v. Mbadugha (supra) refers.
Alluding to the case of Babatunde v. Akinbade (2006) 6 NWLR (Pt. 975) Pg. 44 at 60 paras. C-E; cited by the Appellant where it is stated that going by virtue of Section 146 of the Evidence Act, the law still presumes the Defendant/Appellant to be the owner of the land until the contrary is proved; he contended that this was exactly what the Plaintiffs/Respondents did at the lower court through credible evidence by the witnesses called by the Plaintiffs/Respondents as PW1, PW2 and PW3. In any event, he added, the instant case differs from what obtains in Babatunde v. Akinbade in the sense that this case is not one for forfeiture of customary tenancy.
Citing the provision of Section 146 of the Evidence Act, he submitted that the possession in this regard does not mean physical possession but other forms of possession such as constructive possession by the Respondents and for which their possessory or reversionary right cannot be taken away. In this wise, he posited that the Plaintiffs/Respondents at the lower Court led evidence on how they became seised of the disputed land from time immemorial and to the fact that Yawota Bello was never the owner of the land in dispute but an allotee.
The lower Court, he further posited on the authority of Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 20 Paras B-D; had done all that is required in law, that is the primary duty of receiving admissible evidence; duty to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law by holding in its findings that the Plaintiffs/Respondents had proved that the land in question belongs to their family and their root of title has been adequately traced through conclusive evidence of traditional history and even by admission of the Appellant himself.

WEAKNESS OF THE APPELLANT’S CASE
On the above sub-title, the learned counsel again submitted that it is not in dispute that a Plaintiff who claims declaration can only succeed on the strength of his case and not on weakness of the case of his adversary. This he noted, is a general rule but comes to play after the Plaintiff must have proved his case as the party who claims that the Plaintiffs have divested their title which is now vested in him. He pointed out that it is the DW1 (Bello Yawota) who claimed that he bought the land from the Plaintiffs/Respondents, family and that a receipt was issued for the payment of the said parcel of land but that he failed woefully to produce the receipt. This, fact was said to have been clearly stated in the Judgment at page 195 of the Records.
As for other witnesses whom DW1 said witnessed the transaction, they were said to have all given inconsistent and unintelligible evidence as picturesquely stated in the lower court’s Judgment on pages 194 and 195 of the Records and according to the learned Counsel to the Respondents, the law is settled on the authority Ayanwale v. Atanda (1988) 1 SCNJ 13 at 14; that no witness is entitled to the honour of credibility when he has two material inconsistent pieces of evidence as in the case with DW1 who claimed to have lost receipt of payment in one breadth and that it got torn in another breath on oath. Such a witness does not deserve to be described as truthful, he maintained. The Court below, he noted, found these inconsistencies on page 193 and 194 of the Records.
Having so submitted as done above, learned Counsel then dismissed the contention of the Appellant that the lower Court relied on the weakness of the Defendant’s case to find for the Respondents adding that it was a case of failure to prove his title to the disputed land since in civil cases, the burden of proof is not static while the burden of proof initially lies on the plaintiff, the proof or rebuttal of issues which arise in the case may shift from the plaintiff to the Defendant and vice versa. References were further made to the case of Itauma v. Akpe-Ime (2000) 12 NWLR (Pt. 680) 157 at 156 para C-E and Section 138 of the Evidence Act.
In the instant case, the learned Counsel asserted, although the onus of proof was on the Respondents to adduce evidence of their family title to the disputed land, the burden shifted on the Appellant to prove a sale of the disputed land to his vendor as claimed which obligation he has failed to discharge particularly after the Respondents had proved the traditional history of ownership of the land by credible evidence which the lower court accepted and relied on. Bello Yawota (DW1) failed to establish the fact that the Respondents’ title had been vested in him through the alleged sale transaction. Referring us again to the celebrated case of Mogaji v. Cadbury (Nig.) (1985) 2 NWLR (pt. 383) at 395; he insisted again that the Appellant, in this case could not establish that Bello Yawota who sold the land to him has a title which has been validly passed unto him.
On the distinction drawn by the Appellant of the case of Bamigbose v. Oshoko (1992) 2 NWLR (pt. 78) 509 as cited by the lower Court by saying that the case was used out of context; it was his submission that, though Dw1 told the Court that he bought the said parcel from the Respondents’ Family, he failed woefully to tender any document that shows that it was actually sold to him. Page 61 of the Record of proceedings containing the testimony on oath of the DW1 was cited to submit that failure on the part of DW1 to tender the said hand written acknowledgement of the money paid is very vital to the Appellant’s case and the presumption of law in withholding evidence is applicable in this regard which means that DW1 did not produce evidence which he could have produced because it is unfavourable to him.
Ogun v. Asemah (2002) 4 NWLR (Pt. 756) para, E, was again retied upon to submit that this presumption becomes imperative in view of the two inconsistent averments that the receipt got torn and that he kept it and could not find it. The two positions maintained by DW1 on the receipt are irreconcilable. Page 55 of the Records and paragraph 1 of the Reply to Amended Statement of Claim dated 7th February, 2005 refer.
In relation to the Appellant’s definitions according to the Black Law Dictionary 6th Edition, it was also their submission that whatever the definitions offered by it and adopted by the Appellant were merely denotative, and served no useful purpose as they are not capable of impugning the credibility of the evaluation of the parties’ evidence by the lower Court. He added that the evidence of PW1, PW2 and PW3 are in respect of the parcel of land that is in dispute in which there is need to state categorically the status of DW1 as an allottee and which evidence do not in any way derogate from the definitions quoted on page 8 of the brief of argument since by the pleadings of the Respondent, the word “allocation” was used.
The word “allocated” used in the Judgment he maintained, is speaking the same language with what the Respondents pleaded in their Amended Statement of Claim at the time the word “permitted to use” was employed all in the explanation of the status of the Appellant’s vendor (DW1) as an allottee. However, he continued, the Appellant has failed to establish the way and manner he suffered prejudice by reason of that and how it has affected the merit of the case and the conclusion of the Court. In other words, the Appellant understood the case he fought at the lower Court and was not misled as to the purports of the Respondents’ Claim otherwise, he should have asked for better particulars.
What is more learned Counsel further argued, there is nowhere in the entire pleadings of the Respondents wherein the DW1 was classified as a fee paying tenant for as a matter of fact the PW3 in his Statement on Oath contrary to the claim of the Appellant did not mince words as to the status of DW1 whom he referred to as an allottee in line with the Plaintiff’s pleadings and therefore his terse reference to him as a tenant or allottee in his examination in Chief cannot in anyway derogate from his earlier stated position. In any event, he further submitted, evidence not backed up by pleadings goes to no issue hence the issue of the Dw1 being referred to as a tenant is of no moment and same does not in any way affect the case of the Respondent.
What is more, he finally submitted, assuming without conceding that the claim of the Respondent was that the Appellant’s vendor was a customary tenant, the fact that he is not paying rent or tribute in any way does not elevate him to the status of a land owner who can alienate his interest in the land. Ajao v. Obele (supra) referred.
In the light of the foregoing; he urged us to resolve this issue in favor of the Respondents and affirm the lower Court’s Judgment that the Appellant is a trespasser, since this is a case in which the lower Court has done all that is expected of it in the evaluation of admissible evidence and this Honourable Court is urged not to disturb the findings thereon as they are borne out of the totality of evidence adduced by the parties.
Placing reliance on Obioha v. Akukwu (2005) 5 NWLR Pt. 658 P. 705 para D-E, it was finally submitted that once a trial court has properly evaluated evidence adduced and made a finding which is reasonable supported by the evidence as in the instant case, an appellate court is precluded from interfering with such findings.

RESOLUTION OF ISSUES
Before delving into the resolution of the main issues as raised by the respective parties in this appeal it is appropriate to first consider the preliminary objection raised by the learned counsel for the Respondents as earlier highlighted. The contention of the learned counsel for the Appellant is that the Appellant’s Grounds of Appeal as well as the issues formulated there from are incompetent on the four grounds enumerated earlier on.
On the first Ground which is that none of the issues formulated in the Appellant’s brief of the Argument was or is linked with or hinged on any Ground of Appeal there is no doubt and the law is settled beyond peradventure that issues for determination must emanate from the Grounds of Appeal and any issue not hinged on a Ground of Appeal is incompetent and would be struck out. This was the position taken by Supreme Court in Chime v. Chime (2001) 2 NWLR (Pt. 701) 527 at 550 para, A and restated in a host of decided authorities both by the apex Court and this court. See further Ifediora v. Ume (1988) 1 NWLR (Pt. 74) 5 and Drexel Energy Ltd. v. T.I.B (2008) 36 NSQR 1219 at 1257 paras F-H; where Ogbuagu, JSC stated the position of the law thus:-
“It has been stated and restated in a line of decided authorities by this Court and the Court of Appeal that any issue or issues not formulated or distilled from a Ground of Appeal or covered by a Ground of Appeal, is incompetent and will be struck out”. See the cases of Calabar East Cooperative and Credit Society Ltd. & 3 Ors. V. Etim Ekot (1999) 14 NWLR (Pt. 638) 225; 241 and 248 (1999) 12 SCNJ 327 at 340 per Achike, JSC (of the blessed memory).
It was further held that if an issue is incompetent, it should be struck out as to do otherwise and give consideration to the issue, is to embark on a worthless academic exercise; Alli & Anor v. Chief Alesinloye & 8 Ors (2000) 6 NLWLR (pt 660) 177 at 272; (2000) 4 SCNJ 264 per Iguh, JSC citing the case of Management Enterprises & Ors. V. Otusanya (1987) 2 NWLR (pt. 55) 177 also reported in (1987) 4 SCNJ 180; Mojekwu v. Mrs. Iwuchukwu (2004) 4 SCNJ 180 and Ikeswuoha v. University of Jos (2005) All FWLR (pt. 280) 1573″.
See also Pan African Bank Ltd. v. Ubani (1999) 13 NWLR (pt. 633) 174 ably cited by the learned counsel in support of his submission on this preliminary objection.
Now there is no doubt as was ably argued by the learned counsel for the Respondent also that it is the duty of the learned counsel for the appellant to marry the issues formulated to the respective Grounds of Appeal from which they were formulated and not the duty of the court to embark on a wild goose chase as to which of the Grounds from which the issues were formulated and vice versa.
Be that as it may, the pertinent question which calls for our answer is whether the assertion of the learned Respondents’ counsel that the issues were formulated at large or not hinged to any of the Grounds of Appeal can be substantiated? To answer the question, we shall seek guidance from a perusal of the Grounds of Appeal vis-Ã -vis the two issues formulated by the Appellant for determination and allow them speak for themselves. A careful perusal of the Record of proceedings would reveal that the Appellant filed three Original Grounds of Appeal on the 12th day of December, 2007 in the lower court and with the leave of Court granted the Appellant on the 20th day of January, 2009, filed five Additional Grounds. In other words, the Appellant filed a total of eight Grounds of Appeal which are hereunder set out without their particulars as follows:-
i. The learned trial Judge erred in law and on facts when he held that “Evidence abound in the instance case that the land in dispute forms part of a larger parcel of land of which of Oluawo family of Ijagbo was the “Original Owner” without proper evaluation the evidence before him.
ii. The Learned trial Judge erred in law and misdirected himself on the facts when he concluded that the evidence of DW4, DW2 and DW3 are incredible and as such no reasonable Court would rely on them.
iii. The Learned trial Judge erred in law and in facts when he held that the Claimants have been able to establish their case on the Ownership of the land in dispute.
iv. The Learned trial Judge erred in law and fact when he held that the grantor of the 1st Defendant was a customary tenant.
v. The Learned trial Judge erred in law and in fact by holding that the DW1 was an allotee.
vi. The Learned trial Judge erred in law when he held that the certificate of Occupancy Issued to the 1st Defendant was null and void by virtue of the fact that the person who transferred the land to him had no good title on the land.
vii. The Learned trial Judge erred in law when he held that the plaintiffs are the ancestral owner of the land.
viii. The Learned trial Judge erred in law and fact when he held that there was no evidence to support the Claim that the land was sold to the DW1 by the plaintiffs’ family.”
From the foregoing Grounds which complain in the main of errors of law and facts committed by the learned trial Judge in his judgment, the learned counsel for the Appellants formulated the two issues which the Respondents complain do not arise from the Grounds of Appeal. I must state without equivocation that the objection by the learned counsel for the Respondent is most frivolous and unfounded having regard to the Grounds of Appeal reproduced above. For the avoidance of doubt, Issue Number 1 which questions whether the Plaintiffs/Respondents, showed by credible evidence that the Defendant/Appellant’s Grantor was a customary tenant is distilled from Ground IV of the composite Grounds (Ground 1 of the Additional Grounds) which avers that:-
“The Learned Trial Judge erred in law and fact when he held that the grantor of the 1st Defendant was a customary tenant”.
As for the second issue which is whether the evidence of the PW1, PW2 and PW3 are credible to support the plaintiff’s claim, Grounds 1, 2, 3, 4, 5, 6, 7 and 8 are germane to the issue as they deal with the findings of facts by the court below which findings are based on the evidence elicited by the parties and were arrived at after evaluation by the Learned Trial Judge. Accordingly, I shall discountenance the submissions of the learned counsel for the Respondent in respect this arm of his preliminary objection. The foregoing apart, it is pertinent to note that the learned senior counsel for the Appellant has rightly argued in the Appellant’s Reply Brief by referring particularly to Ground 3 of the original Grounds of Appeal which states that:-
“The Learned Trial Judge erred in law and facts when he held that the claimants have been able to establish their case on ownership of the Land”.
I agree therefore with his submission that issue Number 2 which questions “whether the evidence of the PW1, PW2 and PW3 are credible to support the Plaintiff’s claim”, derives from and is hinged on the above Ground of Appeal. I shall therefore not discountenance the argument of the Appellant’s counsel on the issues so formulated from those Grounds.
On the second ground of objection which is that the Appellant filed two separate Notices of Appeal, this cannot be true as can be gleaned from the Records and earlier pointed out that the Appellant on the 12th December, 2007, filed three original Grounds of Appeal and by leave of this court granted him on the 20th of January, 2009 upon his Motion on Notice dated 10th of November, 2008 and filed on the 11th of November, 2008, five Additional Grounds were further filed. There is no doubt as the learned counsel for the Respondents has rightly argued that the effect of the grant of the motion for Additional Grounds to be filed is an Amendment of the original Grounds. Also Ipaodeola v. Oshowole (1987) 3 NWLR (Pt. 59) may have decided that an amendment constitutes an addition to the existing cause of action or facts as in the instant appeal.
There is also no doubt that in Anakism v. U.B.N. Ltd. (1994) 7 NWLR (pt. 322) at 566 paras, G-H; Mohammed, JCA; had held that the court has jurisdiction to amend a Notice of Appeal and that in that case the Notice of Appeal, was merely amended to replace the former grounds (original Grounds) with new Grounds of Appeal and as such, the Amended Notice of Appeal replaced the original Grounds. The learned Justice of the Court of Appeal in that case rightly held in my humble view that the relevant Notice of Appeal for purposes of the Appeal before him was the Amended Notice containing the said Grounds of Appeal. See Ndukwe Erisi & ors v. Uzor Idika & ors (1987) 4 NWLR (Pt.60) 503.
However, the situation in this Appeal is different since the Appellant did not seek for the Amendment or replacement of the Notice of Appeal and the original Grounds with new ones. What happened as can be gleaned from the Motion on Notice filed by the Appellant was that the Appellant prayed for the following order(s):-
“(1) Leave to file Additional Grounds of Appeal.
“(2) An order deeming the attached Additional Grounds of Appeal as properly filed and served.
“(3) And for such further order (s) as this Honourable Court may deem fit to make in the circumstance”.
Going by prayers (1) and (2) above, it is clear that what the Appellant has done is to add five more grounds to the original Grounds of Appeal and not to replace the original Grounds with fresh Grounds which would have constituted the filing of fresh Notice of Appeal. In other words the scenario here is that the Notice of Appeal filed on the 12th of December, 2007 remained and remains intact with the Original Grounds. By the grant of the application for leave to file Additional Grounds, the Court merely incorporated the five Additional Grounds to the three Original Grounds thus bringing the total number of Grounds to eight (8).
There is no question of filing two distinct Notices of Appeal as spuriously argued by the learned counsel for the Respondents as the five Additional Grounds relate back to the Notice and Original Grounds earlier filed. There is also no existence of simultaneous Notices as contended by the learned counsel for the Respondents since the Notice of Appeal filed earlier has incorporated the Additional Grounds and although the Appellant did not file the new Notice of Appeal incorporating all the Grounds, (which to my mind is unnecessary), this does not render the Appeal herein incompetent assuming this is the position of the law. There is therefore nothing like abuse of court processes in this Appeal as erroneously contended by the learned counsel for the Respondents.
On the contention that the Appellant did not pay the filing fees for the Additional Grounds of the Appeal at the Registry, a look at the Motion on Notice for the Additional Grounds to be filed would reveal that it bears the imprimatur of the Court of Appeal Registrar and the Motion together with the annexed Additional Grounds were paid for and receipted per Receipt No. Z or 2006899386. There is therefore presumption of regularity which enures in favour of the Appellant.
Assuming that the Appellants did not pay the prescribed filing fees, the Supreme Court in the recent case of Akpaji v. Udemba (2009) 37 NSCQR 158 at 177-178; per Ogbuagu, JSC; has stated the current position of the law that such is the error and inadvertence of the Registrar which should not be visited on an innocent litigant and indeed should not vitiate the proceedings or rob this court of the jurisdiction to entertain the Appeal.
In the above cited case where as in this case the issue of filing fees arose for the first time in the Court of Appeal, the learned emeritus Justice of the apex Court opined thus:
“I note that the issues of non-payment of the filing fees, was never raised at the trial Court. This fact is conceded by the Appellant. However, since it touches on jurisdiction and therefore can be raised at any stage, I say no more about the raising of the said issue for the first time in the Court below notwithstanding the decision of this court in the case of Alhaji Ndayako (Etsu Nupe Chairman Niger State Council of Chiefs) Jikantoro & 6 Ors. V. Alhaji Dantoro & 6 Ors. (2004) 13 NWLR (Pt. 889) 189; (2004) 5 SCNJ 152 at 196; (2004) 5 S.C (pt. 11) 1 at 20 to the effect also that rules on payment of requisite court fees are rules of natural justice and that objection thereof, ought to be taken at the stage of trial and not at appellate level”.
Going by the above authority and by way of extrapolation, where as in this case, the issue of filing fees was not raised at the hearing of the application for leave to file Additional Grounds of Appeal, the Respondents had/have waived their right to complain as indeed such non-payment constitutes a mere irregularity which does not go to jurisdiction of the Court. This position I have taken finds considerable support in the dictum of Ogbuagu, JSC still in Akpaji v. Udemba (supra) at page 174-175 thus:-
“It is now firmly settled that even the failure to pay, does not raise issue of jurisdiction and that failure to fulfill the provisions of the High Court Rules in that regard, is a mere irregularity which when not taken timeously or when acquiesced in, becomes, incapable of affecting the proceedings in any way. See the case of A.C.B Ltd v. Henshaw (1990) 1 NWLR (Pt. 129) 646 at 650 C.A; citing the cases of Sonuga v. Anadeni (1967) NWLR 77 at 79; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195 at 202-203 Noibi v. Fikolati & Anor (1987) 1 NWLR (Pt. 52) 679 at 632 and Alhaji Saude v. Alhaji Abdullahi (1989) 4 NWLR (pt. 116) 387 at 405-406.
The usual remedy, it also settled is an order by the lower Court, that the appropriate fees or any other short fall, be paid. It has nothing to do with jurisdiction of the lower Court to entertain the counter-claim”.
Indeed at page 175 of the Record, the eminent jurist also delved extensively into the issue as to when a process is deemed to have been properly filed in court and citing the case of Mohammed v. Musawa (1985) 3 NWLR (Pt. 17) 89; pointed out that:-
“It was also held that a document is deemed to have been properly filed in court, when same is deposited in a court’s office with the proper court officer assigned with the Responsibility”.
As if the Learned Law Lord anticipated the cropping up of the argument of the learned counsel for the Respondent in this Appeal since learned counsel for the respective parties in that case cited Onwugbufor & 2 Ors. V. F. Okoye (1996) 1 SCNJ 1, at 36 per Iguh, J.S.C which has now become a mantra in situations such as we have found ourselves, he intoned in the self same Akpaji v. Udemba (supra)at page 175 paragraphs F-H inter alia:-
“In the case of Onwugbufor & 2 Ors. v. F- Okoye & 3 Ors (1996) 1 NWLR (pt 424) 252 at 291-292 (1996) 1 SCNJ 1 at 36 cited by the parties in their respective briefs (it is also reported in (1996) 34 LRCN 1), although it was held that payment of filing fees, is a condition precedent necessary to the exercise of jurisdiction; this court per Iguh, JSC, stated inter alia:
“If the default payment is that of the plaintiff, the claim in respect of which such prescribed fees have not been paid could not be said to be properly before the court and should be struck out in the absence of an appropriate remedial action or application to regularize such anomaly”, (the underlining of the Respondent and mine) so it can be said that there is a rider so to speak”.
Although this is not a High Court, if at all no fees were paid, the learned counsel for the Respondents should have raised the objection at the earliest opportunity such that the Appellant would apply for or the Court would have made the necessary remedial order for regularization of the process.
In the instant case, since on the face of the motion the payment for the Additional Grounds of Appeal have been receipted, the preliminary objection must fail in its totality and the case of Owonikoko v. Arowosanye (1997) 10 NWLR (pt. 523) 67 and all other cases cited in support of the preliminary objection are not appropriate and applicable to the circumstances of this case. The preliminary objection is therefore dismissed in its entirety.
Turning over to the main issues in contention, I propose to adopt the Issues formulated by the Appellant in the determination of this Appeal.

ISSUE NUMBER ONE (1) WHETHER THE PLAINTIFF/RESPONDENTS SHOWED BY CREDIBLE EVIDENCE THAT THE DEFENDANT APPELLANT’S GRANTOR WAS A CUSTOMARY TENANT.
In the resolution of this issue I must not failed to recall the claim of the Plaintiffs/Respondents in their Amended Statement of Claim and the reliefs sought as reproduced in pages 1-2 of this Judgment.
It is now firmly established on a plethora of decided cases too numerous to mention and learned counsel for the respective parties are ad idem that in an action for declaration of title to land (in this case the Customary Right of Occupancy to the land in dispute), the onus is on the plaintiff to establish his title to the satisfaction of the Court with utmost credibility and on the preponderance of the witnesses evidence. In so doing, he must rely on the strength of his own case and not on the weakness of the Defendant’s although where the case of the defence supports that of the plaintiff, the plaintiff is entitled to rely on same in support of his (plaintiff’s) cases. See the celebrated case of Kodilmiye v. Odu (1935) & WACA 336; Okulate v. Awosanya (2000) 2 NWLR (pt. 646) 530; Archibong v. Ita (1935) 14 WACA 520 INEC v. Oshiomhole (2009) 4 NWLR (Pt. 1132) 607 at 662; Fayemi v. Oni (2009) 7 NWLR (Pt.1140) 223 at 269; Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517 at 529-530.
In this regard, the dicta of Chukwuma- Eneh, JSC; Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332 at 378; where he held that:
“In all cases of declaration of title to land the burden of proof lies on the plaintiff to prove his case by credible evidence in line with his pleading and his case will collapse if he fails to discharge that duty. The burden rests squarely on a plaintiff seeking a discretionary relief of declaration of title to land and the burden is a heavy one as he must establish by evidence called by him to the satisfaction of the Court that he is entitled to such a declaration. The plaintiff must rely on the strength of his case to succeed and not on the weakness of the defence case that is merely to serve as a defence”; Onu JSC’s decision in Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 at 373; where he also held thus:
“A plaintiff who claims a declaration of title to land has a compelling duty to establish his case by credible evidence to the satisfaction of the Court, the weakness of the case of the Defendant will not avail him…” and also Akinduro v. Alaya (2007) 15 NWLR (Pt.1057) 312; are all very instructive and germane to the facts and circumstance of this case and we are most guided by them.

Again, in discharging the onus of proof cast upon the plaintiffs/Respondents as in this case, the Courts have also established on the authority of Idundun v. Okumagba (1976) 9-70 S.C 22 (1976) NMLR 200, that a plaintiff can do so by any of the following five ways:-
1. By traditional evidence;
2. By production of documents of title duly authenticated and executed;
3. By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of ownership;
4. By acts of possession and enjoyment and;
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. See further Omeregbe v. Idugiemwanye (1985) 2 NWLR (pt. 5) 41, Mogaji v. Ladbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 373; Ezeoke v. Nwagbo (1988) 2 NWLR (pt.72) 616; Fasaro v. Beyioku (1988) 1 NWLR (pt. 78) 269 Okpuruwa v. Chief Okpokam (1988) 4 NWLR (pt. 90) 554 and Salami v. Lawal (2008) 36 NSCQR 1018 at 1047-1048.
In the case at hand, it seems to me that the Plaintiffs/Respondents relied on all the five methods enumerated above. For instance, in respect of their root of title and tracing of same to their ancestors and how their said ancestors or family acquired the title as well as the intervening owners through whom they derived such title (that is the origin of the land), to the exclusion of the Defendant and how the land eventually devolved to them; plaintiffs/Respondents pleaded in paragraphs 4-11, of their Amended Statement of Claim inter alia:
“4. The land in dispute is situate along Offa Ajasse Ipo Road, Ijagbo, Oyun Local Government Area and same is presently covered by a purported customary Right of occupancy certificate dated 24th day of October, 2001.
“5. That the dispute land also forms part of a larger tract of land of which the Oluawo family of Oluawo Compound, Ijagbo were originally seize in fee simple absolute.
“6. The said Oluawo family from time immemorial exercise all acts of ownership over and above the said parcel of land such as farming dwelling and even allocating portions to both family members as well as strangers for different purposes upon being satisfied with the purpose to which the parcel of land is to be used.
“7. Oluawo Family of Ijagbo are descendants of three brothers namely Oyabayowa Fagoyinbo, Fatola Oyelami, and Abidogun who migrated to Ijagbo over 200 years ago from their ancestral homeland of Okiki Efon near old Oyo.
“8. Plaintiffs plead that on getting to Ijagbo the Ijagbo community was just evoking then hence they settled around the disputed land where they erected their houses and they area is what is today known and referred to as Oluawo Compound.
As for method number two which is by production of documents of title duly authenticated and executed, the Respondent pleaded this fact in paragraph 13 wherein they averred thus:-
“Plaintiff states that the above occurrence prompted the Oluawo family to register their interest on the land with the then Ilorin Native authority. Plaintiff pleads and shall at the trial of this suit rely on plan No. F. A 306/62 showing the extent of their family land.”
In respect of method three which is by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of ownership, the plaintiffs/Respondent pleaded paragraphs 9-20 thus: –
“9. Plaintiffs state further that being Herbalists and farmers, the Plaintiffs progenitors could not afford to distance themselves from the growing Ijagbo community hence they carry on their family activities on the tract of land which the disputed land forms part of.
“10. Plaintiffs plead that while their various residence are on the right side of Offa-Ijagbo Road facing Ajasse-Ipo, the tract of lands comprising the disputed land is on the left.
“11. Plaintiff further state that their progenitors exercised acts of ownership over the land and upon their death-the control and management of the land become the responsibility of their children, principle among whom are Atinugboya, Oyatoye, Awotunde Taiwo, Malomo and Ajayi Plaintiffs shall lead evidence at the trial of this suit to demonstrate how the family land devolves from their progenitors down to the present day principal members.”
“12. With the advert civilization particularly around the middle of last century their interested in farming activities hence the large tract of land was left to follow exposing same to squatter and trespassers.
“13. Plaintiff states that the above occurrence prompted the Oluawo family to register their interest on the land with the then Ilorin Native authority. Plaintiff pleads and shall at the trial of this suit rely on plan No. F.A. 306/62 showing the extent of their family land.
“14. In furtherance of the above Plaintiffs state that the Ilorin Native Authority was the predecessor of Oyun Local Government Area amongst other Area Council.
“15. The plaintiffs also pleads that in addition to the above action of the family, various portions of the land were allocated to various people mainly family members to checkmate the growing trend of trespassers on the land.
“16. In the process of such allocation one Bello Yawota at the instance of a member of the family, pleaded with the family to permit him to use the disputed land an area measuring 100 feet by 50 facts for his blacksmithing business.
“17. After consultations with the family in council and in accordance with family practice the said Bello Yawota moved into the land and erected mind structure in which he carried out his business and at the same dwelt in the mind house with his family.
“19. Plaintiffs state further Bello Yawota did not at any time deny the Plaintiffs’ family title over the land, since he moved on to same.
“20. Plaintiffs, state that the above was the position up till the year 2001 when the plaintiffs observed that some strange developments were being carried out on the piece of land particularly the mud structure of the said Bello Yawota which by then had been abandoned and had become dilapidated.”
Under method four which is by act of possession and enjoyment this fact were pleaded in paragraphs 6, 8, 9, 10, 11, 12-20 of the Amended Statement of Claim. Finally, on fifth method the Plaintiffs/Respondents specifically pleaded these facts as highlighted in paragraphs 5-19 of the Amended Statement of Claim.
In addition the Plaintiffs/Respondents pleaded that upon discovering the unusual developments on the land which aroused their (Plaintiffs/Respondents) suspicion of the possibility of a foul play; they sought audience with the 1st Defendant who eventually informed the Plaintiffs that the land had been sold to him (1st Defendant/Appellant) hence the developmental activities going thereon. Upon being queried, Bello Yawota presented to the plaintiffs the 1st Defendant/Respondent whom he referred as a close relation who was developing the land for the purpose of erecting a departmental store there on. The Plaintiffs were opposed to this development in view of their overriding interest on the adjoining land.
Meanwhile the Plaintiffs commenced the process of ejection of Bello Yawota from the land by instituting suit No. 19/2002 at the Ibolo Area, Court Grade in Chief I. O. Ajayi v. Bello Yawota. However, notwithstanding the pendency of the suit and in defiance of an order of interlocutory injunction restraining parties from carrying on activities on the land, the 1st Respondent/Appellant continued construction work thereon.
Following discreet investigation, the Plaintiffs/Respondents then discovered that 2nd Defendant/Oyun Local Government had granted the 1st Defendant/Appellant a customary Right of Occupancy Certificate, over the land. The Respondents family was prompted to protest to the 2nd defendant seeking for revocation of the grant of the Customary Right of occupancy by letter written by their solicitor dated 23rd October, 2002 but the 2nd Respondent refused to revoke the grant, nor did the 1st Respondent stop his activities on the land till the date of filing the action.
The Respondents also pleaded that the Appellants are estopped from denying the title of the Respondents’ family over the disputed land and insisted that at no time did they or any person claiming through them ever sell, assign, transfer or convey any interest in the land in dispute to the 1st Appellant. They all alleged that the 1st Appellant’s activities were altering the topography of the land in dispute which is located in a largely residential area to the detriment of the Respondents’ family and others claiming through them. They claimed further that they shall at the trial contend that the 1st Respondent fraudulently obtained the customary Right of occupancy certificate No. OYLG/LUD/CR of 320 which act is unconscionable and inequitable on his part to deny Respondents’ title to the disputed land. They Supplied the particulars of the fraud as following that:-
(i) 1st Appellant at all material times knew that the land belongs to Respondents family;
(ii) Plaintiffs’ family did not sell the parcel of land in question to anybody;
(iii) 1st Respondent did not trace his title to the plaintiff’s family in his instrument of title and;
(iv) 1st Defendant’s/Appellant’s title is tainted with illegality.
Respondents pleaded in paragraphs 33 and 34 of the Amended statement of claim that the 1st Appellant did not follow due process in obtaining the requisite approval of the Town Planning Authority in constructing the structure on the land in dispute the particulars which are stated to be that 1st Respondent fraudulently claimed to the Town Planning Authority that he had title to the land and that he presented misleading documents to officials of the Authority.
Furthermore, they claimed that at the trial they would contend that the construction of the structure on their land in dispute was wrongful, illegal and a contravention of the Town planning Regulations and retied on all necessary Laws on Town Planning.
In proof of their case the Respondents testified through the PW1 (Chief Isaac Olalere Ajayi (2nd Plaintiff Respondents) PW2 Mr. J. A Kolade, PW3 Abel Awotunde and PW4 Bolakale Yusuf a staff of the Town Planning and Development Authority who was subpoenaed to tender documents submitted to the Authority by the 1st Defendant/Appellant. The PW1 to PW3 in their respective statements on oath gave copious evidence of their traditional history and traced their root of title to Fagbayo, Oyelami and Abidogun their ancestor (the three brothers who migrated to the place now called Ijagbo from Okiti-Efon in Old Oyo 200 years before the suit as pleaded in paragraphs 7-11 of their (Respondents) Amended Statement of Claim. They also gave evidence of unbroken succession to the land and how it devolved on them from the said ancestor culminating in exercise of numerous acts of possession and enjoyment of the land for farming purposes, allocation of the land to strangers as well as family members.
One of the beneficiaries of this allocation was Bello Yawota who was so allocated part of the family land for purposes of his blacksmithing business. The said Bello Yawota put up a temporary building which housed his workshop and his family. In fact the PWI one of the principal members of the family who left this country in 1970 came back in 1974 and discovered that the said Yawota was operating his blacksmithing business on the disputed land. Upon enquiry he was informed by members of his family that one of their deceased members allocated same to Yawota for temporary workshop and residence.
There is also evidence from the Respondents’ witness that the said Yawota since then remained an allottee on the land and on occasions when he misbehaved, he was sanctioned by the family and had never challenged the title of his over lords until he purportedly sold the land to the 1st Defendant/Appellant in 2001. PW1 also testified as to how the family attempted to eject Yawota from the land but later discovered that the said 1st Defendant/Appellant had acquired Right of Occupancy over the disputed land from the 2nd Defendant/Oyun Local Government hence, the family decided to institute the action and joined the 2nd Defendant.
It would be recalled that the PW1 copiously in his evidence in chief upon being fed by Mr. Adewoye stoically testified that their ancestors were traditional herbalists who farmed on part time basis on part of the disputed land. He averred under cross-examination that their progenitors were the right owners of the land by settlement. The original settlers were Fagboyingbo, Fatola and Abidogun and that the land on which they settled is now known as Oluawo’s Compound in Ijagbo. Some of the off-springs of their ancestor include Atimugboya and Oyatoye and Awotunde who were children of Fagboyingbo. From the second generation of Fatolas’ lineage are Malomo and Taiwo; an from Abiodogun’s Lineage, the 2nd generation is Oyalowo while the 3rd generation has Dumoye and others. In the line of Fatola they have Alabi and Fatalo and Ajayi to which lineage he (the witness) belongs. They also have Adebisi Awotunde from the Fatoyingbo lineage and the land was never partitioned among the children.
The witness further testified under cross-examination how in later days they discovered that there were threats to the land by trespassers and they decided to register their interest on the land with the Ilorin Native Authority which later split into many Local Government Areas including their present Oyun Local Government Area. The witness further gave the precise period that Bello Yawota started misbehaviour and was sanctioned, as between 1974 to 2001. He reiterated that the said Bello never challenged their title to the land he was occupying. It was in 2001 that they discovered that a stranger operating on the land and when Yawota was questioned; he explained that he gave the land to his brother who wanted to build a departmental store. They suspected foul play and requested to invite the person to meet with the Oluawo’s family and the stranger turned out to be the 1st Defendant/Appellant.
Surprisingly when they met the Appellant; he told the family that he bought the land from Yawota and he was informed that Yawota had no title to the piece of land. The Respondents later discovered that the 1st Defendant/Appellant had acquired a customary Right of Occupancy over the land. They believed that the Right of Occupancy even though issued by Government was fraudulently obtained.
On the 17th of October, 2005 when hearing of the witness resumed, the witnesses stated that they went to Ibolo Area Court to challenge the right of Bello Yawota to the land and the 1st Defendant/Appellant was restrained by the Area Court, Offa. A copy of the Ruling of the Area Court delivered on 1/7/2007 was tendered admitted and marked Exhibit I. The witness continued that the order of injunction appeared not to have been respected because construction work on the site continued. They then carried out investigation after the flouting of the order and having discovered that the customary Right of occupancy issued to the 1st Defendant/Appellant was fraudulent, they wrote to the 2nd Defendant to strike out or nullify the certificate. The solicitor’s letter to the Oyun Local Government protecting the grant of the Right of occupancy and calling for its revocation was tendered admitted and marked Exhibit 2.
The witness maintained that no action seemed to have been taken on their said protest and they subsequently instructed their lawyer to institute the action in the High Court culminating in this appeal and subpoenaed the 2nd Defendant to produce the Certified True Copy of the Customary Right of occupancy No. OYLG/LUD/CRPF/0/320 of 24/10/01 together with the Agreement between Bello Opatoye (alias Yatowa) and Chief Ibrahim Adedeji (1st Defendant/Appellant) dated 6th June, 2001 and the site plan of the land, which were collectively admitted and marked Exhibit 3a; b, c and d respectively.
On further cross-examination as to their relationship with Bello Opatoye, alias Bello Yawota and the said Bello’s children (Lasisi and Amusa Opatoye); the witness replied that neither the children nor their father have blood relationship with the Respondents in Ijagbo. When further questioned whether the Ministry of Lands ever said that Bello Yawota has a right on the land in dispute, the witness replied in the negative adding that the Minister wrote a letter requesting that they should settle the matter amicably. The letter dated 4th July, 2002 was admitted and marked Exhibit 4.
Asked why he alleged that the Right of occupancy was/is fraudulent, the witness replied that it, was because none of them (Yawota and 1st Appellant) ever contacted their family about alienation of the land as bonafide owners of the settlement and their Oluawo’s family never sold the land to anybody. He insisted further that neither Bello Yawota nor Ibrahim Adedeji (1st Defendant/Appellant) ever contested or denied their family title/ownership of the land till date and by Exhibit 3, Yawota never traced his title to anybody. He further averred that they wrote to the Town Planning Authority that the land on which the 1st Appellant was planning to build his petrol station belonged to their (Respondent’s) family but would not know whether the said 1st Defendant/Appellant had complied with the Rules.
Asked again whether he knew any allottee apart from Bello Yawota who had sold, alienated the family land to anybody, the witness replied in the negative. He finally prayed the court below to grant their claim as they were the rightful owners of the land
Under cross-examination by Chief Rabana SAN; the witness stated that he remembered telling the court that he found Yamota on the land in 1974 when he returned from abroad. Pa Adeogun according to him was the family head as at 1970 and he (witness) was not in Nigeria when the land was allotted to the 1st Appellant but the terms of the Agreement between his family and Yawota was well known to him although their relationship with the said Yawota was not documented.
When further cross-examined he replied that he did not know whether rent was being paid by the said Yawota to his family. He added that they did not pursue the case they instituted in the Area court against Yawota and stated further that they did not write any petition to the Local Government but only wrote to the Ministry of Lands as well as the Town Planning Authority.
On further cross-examination he admitted that some of his family members met the Ministry of Local Government and he believed that the people investigated their complaint. Also the Kwara Town Planning Authority advised the parties to go and settle the matter but in the case of Oyun Local Government, they refused to cancel the Right of occupancy that was issued to the 1st Appellant. The witness stated on further cross-examination that Yawota had a temporary structure on the land in question and that was why it was destroyed. He admitted that the said Yawota lived in the temporary structure built with mud and roved with old corrupted sheets with his children. He would not know whether the house was not connected with electricity and water. He stated further that he heard that some of his family members were insistent to meet the commissioner for Local Government and chieftaincy Affairs in Ilorin and that the 2nd Defendant never responded to their (Respondents,) application to strike out the Right of occupancy issued to the 1st Defendant.
He disclosed upon being further questioned by Rabana (SAN), that the documents that were tendered were those used by the Local Government in the issuance of the Right of occupancy. He further stated that Yawota is presently residing on the disputed land directly at the back of the filling station built by the 1st Defendant/Appellant which two buildings are on the disputed land.
The PW2 testified in the same vein as the PW1 and under cross examination he also replied that there was no written Agreement during the allocation of the land to Bello Yawota and would not know whether the Appellant pays rent or dues to the family on allocation of the land; He maintained that the first house built by Yawota has been demolished and another one wherein he resides within his family. He saw the building before it was demolished and it was built with mud and fragile iron sheet.
A portion of the land granted to Yawota is now being occupied by the 1st Defendant/Appellant wherein he built his Defendant/Appellant’s filling station. He disclosed further that Yawota did not tell them that he sold the land to the 1st Defendant/Appellant but it was the Appellant who disclosed to them that Yawota the witness maintained is an allottee thereof as a temporary occupier and not a bona fide owner.
The witness also stated that he did not see the Right of Occupancy granted the Appellant but was informed that the Appellant was issued with one. Finally the witness reiterated under cross-examination that Bello Yawota is not a member of Oluawo family but was allocated the land free of charge on humanitarian consideration.
The PW3 who testified that between 1968 and 1975, he was the secretary of Oluawo Compound of Ijagbo while the 1st Defendant/ Respondent was his assistant confirmed the evidence of the PW1 and PW2 that sometime in 1972 the head of their family representing their family gave them instruction to measure a plot of land for Mr. Yawota together with Late Mr. Thomas Adepoju and he therefore accompanied Pa. Adepoju and after measuring the land Pa. Thomas Adepoju re-emphasized the decision of the Oluawo’s Compound that the land was being allocated to Bello Yawota as a tenant or allottee. He was aware that no payment was made by Alhaji Yawota for the plot of land. He prayed the court to help him retrieve the land and under cross-examination by learned counsel for Defendant/Appellant, the witness stated that Bello Yawota got the land in 1972 and no rent was ever paid by Yawota to Oluawo’s family and if rent were paid he would have known.
The said Yawota he maintained was still on the land and used to have a temporary mud building thereat which was later demolished and he was putting up a brick building when he was then challenged. On further cross-examination, he stated that the Yawota was a tenant at will, was verbal and not in writing. That Yawota’s house and the filling station built by the 1st Defendant/Appellant are on the land granted to Yamota which invariably belongs to Oluawo’s Compound. The witness finally stated under cross examination that they protested when they noticed the building of the petrol Station on the land and wrote the Town Planning Authority and NNPC.
The case of the Defendants/Appellants on the other hand as pleaded in the Statement of Defence and Reply to Amended Statement of claim; is that the 1st Defendant admitted paragraphs 1-10 of the Statement of claim but denied paragraphs 11-36 of the statement of Claim.
In answer to paragraphs 11, 13, 14, 15 and 16 the 1st the 1st Appellant pleaded in paragraph 3 of the statement of Defence thus:-
“The 1st Defendant avers that he legitimately bought a house from one Bello Yawota and at no time did the said Bello Yawota tell the Defendant that the said house encumbered either by the Plaintiffs or other person(s) whatsoever from Ijagbo community.”
In answer to paragraphs 17, 18, 19, 20, 21 and 22 he pleaded in paragraph 4 of the statement of defence inter alia:-
“… the 1st Defendant avers that one Bello Yawota told him that he i.e. before buying the house that that he purchased the piece of land upon which he built the house over 40 years ago and upon that, I purchased the house from him and also that he had been in absolute possession and ownership of the land since 40 years ago without any disturbance or hindrance from the Plaintiffs family or anybody whatsoever.”
The appellant further pleaded in paragraph 5 the 1st defendant further 5, 6, 7, 8, 9 and 10 as follows.-
In answer to paragraphs 23, 24, 25, 26 and 27 of the Statement of Claim the 1st Defendant avers that the Plaintiff lodged a complaint with the Ministry of land and Housing over the 1st Defendant’s building and filling Station on the Land, the Ministry investigated the matter and find out that the 1st Defendant was properly on the land and had approval to build on the land, advised the Plaintiffs family to settle amicably with the 1st Defendant. The 1st Defendant shall at the trial plead a copy of the letter written by the Ministry of land and Housing to the 1st Defendant.
The 1st Defendant avers that he was never a party to the suit at Ibobo Area Court Grade between Chief I. O. Ajayi v. Bello Yawota of which plaintiff discontinued with the case at the upper Area Court was no injunctive against the said Bello Yawota Opatoye and the 1st Defendant shall plead the copy of the order of discontinuance at the upper Area Court. The 1st Defendant avers that there was no injunctive order granted by the Court restraining the 1st Defendant or any other parties from carrying out activities on the land. The 1st Defendant avers that he legitimately obtained a Customary Right of Occupancy from Oyun Local Government Area of Kwara State with No. OYLG/LUD/CR of 0/320
“6. In answer to paragraphs 28, 29, 30 and 31 of the Statement of Claim the 1st Defendant avers that he bought the house rightly acquired by one Bello Yawota without any hindrance and avers further that through investigation he discovered that the said house belongs to Bello Yawota being in possession for over 40 years. The 1st Defendant further avers that there are so many filling Stations located within residential are in Ijagbo, Offa, Ilorin and several towns in Kwara State thereby States that it is not detriment in any material to the Plaintiff. The 1st Dependant avers that at no time did the appropriate authority responsible for construction of filling Station stopped him nor withhold approval for the filling Station.
“7. In answer to paragraphs 32, 33, 34, 35 and 36 of the Statement of Claim, the 1st Defendant avers that he legitimately obtained the customary Right of occupancy certificate.
(a) The 1st Defendant bought the house from the bonafide owner.
(b) The said land was purchased 40 years ago.
“8. The 1st Defendant avers that he followed the normal one process of law resulting in the requisite approval of the Town Planning Authority in constructing the structure on the land in dispute.
“9. The 1st Defendant avers in response to paragraph 34 of the Statement of Claim States that the construction in the land dispute is and has lever being wrongful, illegal neither a contravention of the Town Planning law thereby the Plaintiff are put in the strictest form to proof their case.
“10. The 1st Defendant pray that the Suit be discussed as it lacks merit.”
As for the Reply to the Amended Statement of Claim the plaintiff in reply to paragraph 16 of thereof Stated that the land was absolute purchase by Bello Yawota from the head of Oluawo family who was late Pa Ezekiel Fadoyin in 1952 for ?50 (fifty Pounds) and that he shall lead evidence at the trial to show that the said Bello Yawota an illiterate did not obtain title documents on the land but kept small paper which was acknowledgement of the sum paid for the land.
In response to paragraph 32 of the Amended statement of claim he stated that his title to the land was not tainted with illegality as he bought bona fide from a lawful holder.
Finally in response to paragraph 33 of the Amended Statement of Claim the 1st Defendant/Appellant stated that he did not fraudulently make any claim to the Town Planning Authority nor misrepresented, but the information and document presented to the Town Planning Authority was genuine, honest and valid.
It would be recalled that the Appellant testified and called four witnesses in proof his case.
At page 61 the Dw1 Bello Yawota in his testimony on oath contained in pages 61 and 62 of the Records in sum stated that sometime in 1959 he wanted to buy land for his residence and Blacksmith workshop in the outskirts of Offa town along Ijagbo-Ajasse Road which would be suitable for that purpose and one Oyatoye took him in company of his (Appellant’s) two brothers one Timothy Ademola Adekanye and Taiwo Ogunremi to the Baale of Oluawo family in Ijagbo who agreed to sell the land to him. The Baale then instructed Ezekiel Fadoyin, Jimoh Carpenter (later Thomas Adepoju and Oyatoye to go and measure the land for him (Appellant).
The three persons aforementioned represented the family of Oluawo while Appellant and his two brothers Adekanye and Ogunremi followed them to where the measured the land now in dispute and measured the land to him.
After the measurement they all went back to the Baale and the presence of Ezekiel Fadoyin, Oyatoye, Jumoh Carpenter (Thomas Adepoju), he (appellant paid the sum of ?25 (Twenty Five Pounds) for the land and he was given a hand written acknowledgement of the money for the land on a small paper which he kept for a very long time until it got (sic) tored (form?) and got destroyed.
Later on when he wanted to build his house, Oluawo Family through the three men also collected a bottle of hot drink from him. He then built a six room bungalow with a room workshop on the land and he lived there till 2001 when he sold the house to the 1st Defendant/ Appellant.
He maintained that he built the house outright from the Oluawo family and since 1959 till 2001 no one either from the Respondents’ family or anyone else had disturbed his ownership and possession. Up till now, he lives on a portion of the land behind the building he sold to the 1st Appellant without disturbance.
He further deposed to the facts that the Respondents i.e. A. A. Kotade and Chief I. O Ajayi were not there when their family sold the land to him and none of them till 2001 ever challenged his ownership of the land.
When he sold the house to the 1st Appellant the 2nd Plaintiff/Respondent instituted an action against him at the Area court which suit was later discontinued against him when it became clear that the land belonged to him absolutely. He called on the Court to dismiss the claim against the defendants.
Under cross examination by Adewoye Esq. learned counsel for the Respondents the witness explained that the Baale demanded for ?25 for the land on that day but he had no money and came back the following week to pay in company of his brothers. The Baale was said to have prepared a paper for him to take it to the Onijagbo Oloko and Environment officials in Offa and the document was respectively endorsed that the land had been sold to him at Ijagbo. The said document was also endorsed by his brother and others making six signatures.
On further cross-examination he claimed that he did not know the name of the Baale of Ijagbo who sold the land to him said his brother Fadoyin who paid the money to Baale did not tell him the name of the Baale. The document was said to have been prepared and issues by a young men. His said brother (Fadoyin) is now late as he died twenty years before the suit.
When further cross-examined still on the document evidencing the sale by the Respondent family to him, the witness stated thus:-
“I (sic) have (headed?) the document in respect of the purchase of the land in question to my brother who is now late. Apart from issuance of the document, the Baale did not do any other thing…”
A year after I brought the land they still requested Kota-nuts and schnapps and I gave them.”
On further cross-examination on the 31st of June, 2006, he admitted that his two sons Amusa and Lasisi Opatoye were not related to the Oluawo family. He maintained that he had always been in possession of the land in question and never begged or apologized to the family at any time never to eject him from the land.
Upon being taken up on the issue of cock and other acts of interference by the Respondents’ family, the witness stated that his mother caused a problem by selling a cock in 1973. The witness stated inter alia that:-
“It is true in 1982 I dug a pit for a mechanics use besides the house of Mr. Awotunde I was later cautioned by the elders of Oluawo’s family and I agreed. I left the place and moved to another place.
I did not subject the land to the mechanic. It was the frontage of my house that I dug. But when the Oluawo family protested, I closed it up and moved to another place. That was in 1982.
In 1985 I buried a corpse near the Railway Line. It was not me parse who buried the corpse but when the Oluawo’s family complained I appealed to them and they agree”.
On the nature of the house he built on the land the witness stated under cross-examination that:- (built the house with mud it was not in vogue then to build black houses. Houses were built with stones and cement. I used stone (rock) and cement for the foundation. I did not use mud to build the house because it was temporary”
Dw2 on his part supposed the evidence of the DW1 when he stated that he accompanied the DWI to Oluawo family of Ijagbo and that the head of the family then was the Baale. He further confirmed that in their company were Ezekiel Fadoyin Jimoh Carpenter and Pa. Oyatoye and that they were six who went to Baale. He was also present when the land was measured for the said Yawota after the sum of 825 now N50,000.00 was paid and acknowledgment paper written was given to Beko Yawota to the effect that the land was sold to him Yawota was also said to have given a bottle of schnapps and some Kola nuts to the Baale which items were collected by Ezekiel Fadoyin who gave them to the Baale.
On further Cross examination he stated that he did not know who wrote the receipt but that same was given to Yawota in his presence. The receipt according to him was not given to Yawota the same day but after payment of the ?25 and the kola nuts and schnapps.
Asked again when Yawota’s house was built and what materials he averred that it was built in 1959 with mud and clay as it was not in vogue to building houses with brick and cement at that time. Finally the witness stated that he would not know whether there was dispute between Oluawo family in respect of the land in question. He reiterated that the said Yawota bought the house in 1959 from the Oluawo.
DW3 Taiwo Ogunremi then 65 also testified on his part that he was one of those who accompanied the DW1 to Baale of Oluawo when the land was sold in and Yawota started the construction of his mud house in 1959 two years after the land was bought. He was also there when the land was measured and sold after payment and presentation of Kola-nuts and schnapps were made by the DWI so the Respondents’ family. He was however not aware of the do’s and don’ts that Oluawo family gave to Yawota on the disputed land but he heard about the incidence regarding the burial of a corpse on the land by Yawota. He was also aware of the incident regarding theft of Pa Ajayi’s hen by Yawota’s mother but would not know whether the execution of sale agreement was then in vogue. He witnesses the sale of the land by Pa. Ezekiel Fadoyin to Pa. Bello Yawota and was present when the money was paid to Pa. Fadoyin for the land.
DW4 Olatunji Tayo Aderemi a staff of the Oyun Local Government who testified that the normal due process was followed and the Right of occupancy was issued by the 2nd Defendant to the 1st Defendant/Appellant after preliminary investigation to the ownership of the land. The said Right of occupancy was granted in good faith according to him the Kwara State Town Planning Authority gave permit to the Appellant to develop the land in dispute.
Under Cross examination by Fagbemi, SAN he stated that the procedure they adopt upon receipt of Application for issuance of Customary Right of Occupancy is to go to the site to inspect the land with a view to knowing whether there is disputed and if they find that there is no dispute on the land they then go ahead to process the application in respect of private land. According to him, they normally inquire as to the source or root of title from the supposed owner of the land and they would also examine the Agreement and after satisfying themselves that the Agreement is well prepared they then proceed to process the Application for the Right of Occupancy which application must go to the Chairman of the Local Government. He related all the process that would take place before the issuance of the certification.
On the 11th of January, 2007 when he was recalled he admitted that Exhibit 34 and the Agreement inside Exhibit 5 i.e. the file are the same and the said Exhibit 3A formed the basis of their approval of the 1st Defendant/Appellant Right of Occupancy that Exhibit was made between the 1st Appellant and Bello Yawota who confirmed that he sold the land to the Appellant.
On further Cross-examination he replied that he believed what Bello Yawota told him because he saw the house that the Appellant built for the said Yawota on the land. He further explained the essence of Right of occupancy and stated further that the investigation title did not take him more than one day because when he met Bababa Bello Yawota on the land be told him that he had been on the land for 40 years and that the land was sold to by Ile-Oluawo of Ijagbo. He stated that he did not need to collect any document from Bello Yawota.
When further cross-examined still on his investigation exercise he confirmed that: – “No member of the Olu-Awo Family was consulted in any investigation I saw the lawyers Agreement and as at the time I carried out my investigation, I discovered that there was no dispute on regard the land. I was satisfied about the claim made by Bello Yawota that he bought the land from the Olu-Awo of Ijagbo”.
The evidence of the DWs and 1st Defendant/Appellant Alhaji Adediji is that he legitimately bought a house comprising rooms and workshop from one Bello Yawota sometime in April, 2001 and before he did so he made inquires and was satisfied that the said Yawota owned the house because the said Yawota informed him that he bought the land on which the house was built from Oluawo family of Ijagbo over 40 years ago about 1959 for the sum of ?25.
The said Bello Yawota lived in the house with his family carrying out his blacksmithing business until 2001 when he (the Appellant) bough the House and demolished it to construct a filling station, which a new house was built behind the demolished one where Bello Yawota now lives.
After the purchase of the house he obtained all relevant documents on the building including a sale Agreement from Bello Yawota Customary Right of Occupancy of Oyun Local Government, a survey plan showing the land and approval from the Town planning Authority Kwara State.
According to him before obtaining the customary right of occupancy investigations was conducted by Oyun Local Government which was satisfied about the title of Bello Yawota who sold the property to him (Appellant). He further deposed to the facts that before embarking on the construction of the filling station, the Town Planning Authority inspected the building plans and the site and gave him approval, and none of the documents issued to him in respect of the land were issued bona fides by the appropriate authorities and none was fraudulently obtained.
He stated further that it was when he was building the filling station that the Plaintiffs came to challenged him and he told them that he bought the house from Bello Yawota. The plaintiff he add also reported the matter to the Kwara State Government and the matter was investigated and the letters and minutes of all meetings between the 1st Defendant, the Oluawo family and the Commissioner for Local Government and Chieftaincy Affairs shall be relied upon.
He further testified that the Government advised the Oluawo family to allow me built the filling station and should settled amicably with me as they found that he was on the land bona fide. He finally stated that he knows that several filling stations exist along Offa-Ijagbo Ajase-Ipo Road and the one he has constructed is not injurious and obstructive to the public.
On the 11th of January, 2007 when the Appellant adopted his Statement on Oath in court, the Reply to the letter of protest dated 4/7/2002 on the location of the Appellant’s petrol station from the commissioner of for lands & housing was tendered admitted and marked Exhibit 6 and the minutes of stakeholders meeting about the dispute was also admitted and marked Exhibit 7. When cross-examined the witness and method that he was invited by the Oluawo family in 2001 over the disputed land after he had started building the petrol station but he never pleaded with the Oluawo family. On further cross-examination he told the court that Pa. Bello Yawota refused to give the family his (Appellants) name and he then gave them his name. He further stated that the family inquired about the exact thing he wanted to build on the land and he told them it was a petrol station which station was under construction before he was invited for that meeting.
The witness on further Cross-examination also admitted being aware of Oluawo family’s report to the Kwara State Town Planning Authority about the construction of the petrol station on the disputed land. When asked to read Exhibit 6 and 7 he purported that he could not read them although he admitted that he was aware that he had made a written statement on Oath. He admitted further that Exhibit 6 and 7 were explained to him by his lawyer but purported that he could not say whether Exhibits 6 and x 7 confirms that he was on the land bona fide as he could not read the documents.
Asked again whether he was present when the land was allocated to Pa Yawota he replied in the negative nor could he know the behaviour of Pa Yawota that necessitated the Oluawo’s family wanting to send him away from the land. On further being questioned he admitted that since his getting to the land he had been aware of all the happenings between Pa Yawota and Oluawo’s family over the land, and also heard the evidence of all his witnesses even though he could not remember all that they said but he now knows that there was problem over the disputed land and that was why they were in Court. He recalled that when he got to the he met the house built by Pa. Yawota where he lived with his family which house he later demolished to build his petrol station. When question again on whether he investigated the ownership of the land he replied in the affirmative adding that he asked one Jimoh carpenter of Oluawo family who confirmed to him that the land belonged to Pa. Bello Yawota and that he carpenter measured the land for the said Yawota then when he was not yet the Baale of Oluawo’s family. He believed the said carpenter.
Finally, he denied knowing Mr. Lawal of Town Planning Authority adding in conclusion that the NNPC had approved his filling station and he had been licensed.
After what I consider one of the best Judgments I have ever read from the High Court in recent times in terms of evaluation of evidence, ascription of probative value and application of the law to proved facts since my inception in this jurisdiction, the learned trial Judge found for the plaintiffs/Respondents in all ramifications.
It is pertinent to note that learned Senior Counsel for the Appellant in his submission on Issue Number One whether the Plaintiffs/Respondents showed by credible evidence that the Defendant/Appellant’s Grantor was a customary tenant referred to the evidence of the PW2 at page 164, that of the PW1 at pages 57 and of PW3 to submit that there is no evidence at the trial to show that the Defendants’ Grantor is a customary tenant by payment of rent, tribute royalty or even by acknowledging them as landlords.
With the greatest respect to the Learned Senior Counsel, although payment of tributes, rent, royalty and even acknowledgements are all incidents of customary tenancy it has since been established by decided cases and text writers that although the payment of tribute serves as the grantees acknowledgement of the grantor’s reversionary interest or rights, and evidence of landlord and tenant (see C. O. Olawoye: Title To Land In Nigeria; Evans Bros. Ltd. 1974; page 27); the fact that tribute is not paid does not derogate from the fact of existence of customary tenancy relationship. See Okuojevor v. Sagay (1958) W.R.N.L.R. 70 at 71.
In fact in Lasisi V. Tubi (1974) N.S.C.C. Vol. 9, 619 at 615; the Supreme Court Per Ibekwe, J.S.C (of blessed memory) had held thus:-
“There have never been any custom prohibiting parties from a customary tenancy from adopting a form of payment different from the normal customary tributes, and the predominance of tribute in the olden days should not obscure this fact”.
It has also to be noted that the fact that the tenant pays no tribute does not render him a tenant at will who is liable to be ejected at will by the Overlord. See Akinrinlowo v. Anuwo (1959) W.R.N.L.R. 56 and Lasisi v. Tubi (Supra) and most especially Eyamba v. Holmes (1924) 5 NLR 85 at 87. This is so because failure to pay tribute even where tribute is a term of the customary tenancy may not be a ground for forfeiture except such refusal to pay is accompanied with the denial of the over lord’s title. See further Ajao v. Obele 2005) 5 NWLR (pt. 918) 400 at 421.
In the case at hand, the plaintiff had pleaded in paragraph 17 of their Amended Statement of Claim that:
“17 Plaintiffs state that after consultation with the family in council and in accordance with the family practice the said Bello Yawota was thus permitted to use the land purely on humanitarian ground without any formal alienation to him of the family possessory right over the described Portion.”
Earlier on in paragraph 16 and subsequently in paragraphs 18 and 19 the purpose for which the Grantor wanted the portion of land for were stated that at the instance of a member of the family he pleaded to permit him the use of the disputed rand measuring 100 feet by 50 feet for his blacksmithing business. He subsequently moved into the land and erected a mud structure in which he carried out his business and dwelled therein with his family and at no time until 2001 challenged their title, see the evidence of the Pw1-Pw2 at pages 56-59, 82-86 and 154- 157 and in particular Pw3 at page 83 which were neither challenged nor rebutted. In fact as aptly submitted by the learned counsel for the Respondents, the Appellant acknowledged that radical title on the was in the Respondents when he admitted paragraphs 1-10 of the Amended Statement of claim what is admitted needs no further proof. See NTUKS v. NPA (2007) 13 NWLR (pt. 1051) 392 at 240 cited by the learned Senior Counsel for the Appellant.
Still on the issue of payment of rent or tributes by the Dw1, there is no doubt that on the face of the record of proceedings as per page 164 the PW2 stated that: “I don’t know whether or not Yawota pays rent or dues on the allocation”, and also that the evidence of Pw3 under cross examination contained in page 166 of the record of proceedings was to effect that no rent was ever paid by the said Yawota to Oluawo family. If rent was paid, I must
Know”. Also as posited earlier, the case of NTUKS V. NPA (2007) 13 NWLR (pt, 1051) 392 at 240, must have decided that facts admitted need no further proof. Notwithstanding the above scenario, the Pw1’s -evidence contained in page 57 of the record of proceedings where he stated that:-
“after sometime during the temporary occupation of the disputed land, Yawota Bello mis-conducted, himself and when invited on various occasions of his mis-conduct, he apologized and accordingly was reprimanded by then Head of Oluawo family and since then, the said Yawota Bello had never done anything that may bring him at cross road with the Oluawo family and the conditions of his allocation of the disputed land were kept intact and duty observed at all time material preceding the year 2001”, is very germane to the pleadings of the Respondents as earlier reproduced in paragraphs 15-16 and in particular paragraph 19 of the Amended Statement of Claim; that DW1/Grantor who sold the disputed land to the Appellant was/is a customary tenant or at best a gratuitous grantee of the Respondents who had not at any time challenged the plaintiffs’ family title to the disputed land and therefore that the evidence goes to the issue in contention; contrary to the submission of the learned Senior Counsel.
The same applies to the evidence of the pw3 where he stated that:
“While on the Land Thomas Adepoju warned Bello Yawota not to alienate (sic) sale any part of the allocated land that it should just be a temporary one and Yawota Bello agreed and thanked Thomas Adepoju and I”.
The submission of the learned senior counsel for Appellant from the foregoing, are therefore non-sequitur and as the learned counsel for the Respondents has ably submitted, from the totality of the pleadings of the Respondents and the evidence elicited by them and as was rightly found by the court below; the Grantor or Bello Yawota who purportedly sold the land to Appellant was at all times material to the transaction and this case a mere allottee who merely enjoyed a gratuitous grant at the pleasure of the Respondent family and as such had no authority to alienate the land to a third party.
To further demonstrate the fact of his being a customary tenant or gratuitous allottee, the DW1 Bello Yawota had testified at page 62 of the Records in his statement on Oath thus: –
“That later when I wanted to start the building of my House, Oluawo family through the three men also collected kola-nut and a bottle of hot drink from me.”
At page 169 of the Records the witness under cross-examination stated: “Thereafter, I took over the land and built a house on it the 3rd year. A year after I have built the land, they still requested for Kola nut and schnapps and I gave it to them”.
Again at page 173 of the Records after stating under cross examination that he had always been in possession of the land since he bought it and had never had any problem with any person in respect of the land except the cock stolen and sold by his mother which cock in any case belonged to him, when further questioned in this respect he admitted thus:- “It is true in 1982 I dug a pit for a mechanics use besides the house of Mr. Awotunde I was later cautioned by the elders of Oluawo’s family and I agreed. I left the place and moved to another place.
I did not sublet the land to the mechanic. It was the frontage of my house that I dug. But when the Oluawo family protested, I closed it up and moved to another place. That was in 1982.
In 1985 I buried a corpse near the Railway Line. It was not me in person who buried the corpse but when the Oluawo’s family complained I appealed to them and they agree”.
All these pieces of evidence go to show that he knew from the onset that he was a mere allottee who owed allegiance to his overlords and as such when he built his house, he acknowledged this by giving the Respondents’ family Kola nuts and hot drinks as demanded. A man who owns the land bona fides or absolutely, ordinarily cannot seek permission before digging a pit on the land or be stopped from burying corpse thereat or doing anything he want to do on his land.
The fact that he was allotted temporary occupation of the land in dispute is demonstrated by the building of mud house which as at 2001 was dilapidated before he sold the land to the Appellant. The fact that when he misbehaved he was invited and on various occasions he apologized and was reprimanded by the then head of Oluawo family and had since then not done anything that would bring him at cross roads with his Landlords and that the term and conditions of the allocation were kept intact until 2001, as testified by the PW1, have been supported by these admissions of the DW1/Bello Yawota as above reproduced.
Furthermore the testimony of the Pw3 that – while on the Land Thomas Adepoju warned Bello Yawota not to alienate or sell any part of the allocated land and that it should just be temporary one and Yawota agreed and thanked Thomas and Adepoju and I”, has also been amply supported by the admissions of the Appellant’s Grantor (Dw1). It is therefore not correct in fact and in law for the learned senior counsel to insinuate as he has done that these pieces of evidence go to no issue.
On the allusion drawn by the learned senior advocate to the cases of Ojoh v. Kamalu (supra) Kayode v. Odutola (supra) Ag. Leventis Nig. Plc., v. Akpu (supra), Thompson and Thompson v. Arowolo (supra); to submit that parties are bound by their pleadings and evidence led on un-pleaded facts go to no issue and should be disregarded. With the greatest respect to the learned senior counsel, although the authorities all cited were decided on their peculiar facts and circumstances and represent the true state of the law, they are not appropriate and applicable to the facts of this case taking into consideration the paragraphs of the Amended Statement of Claim earlier reproduced above.
On the submission by the learned senior counsel that by the operation of section 146 of the Evidence Act. The law presumes the Defendant/Appellant owner of the land until the contrary is proved, the case of Babatunde v. Akinbade (2006) 6 NWLR (pt. 97) 44 at 60 paras. C-E where it was held thus:-
“A claim founded on allegation of customary tenancy which seeks a declaration that that Defendants are customary tenants of the plaintiffs and a forfeiture of the customary tenancy, postulates that the Defendants are in exclusive possession of the Land in dispute. And by the operation of section 146 of the Evidence Act, such defendants are presumed to be the owner of the Land in dispute until the contrary is proved to rebut the presumption. And the only way to rebut the presumption is by strict of the alleged customary tenant”; is very instructive and as rightly submitted, the onus was on the plaintiffs top show that the defendants are on the land with their (plaintiffs’) consent.
The provisions of section 36(4) of the Land Use Act and the authorities of Teniola v. Olokun (1999) 5 NWLR (Pt. 602) 280 at 297 paras A-D and Jiwul v. Dimlong (2003) 9 NWLR (pt. 824) 154 at 192; Abudu & Eguakun (2003) 14 NWLR (pt. 840) 311 at 322; as cited by the learned counsel for the Appellant are all in tandem with settled legal principles and indubitably so. However, in the instant case, the plaintiffs had pleaded as far as their title to the land in dispute is concerned inter alia:-
5. That the dispute land also forms part of a larger tract of land of which the Oluawo family of Oluawo Compound, Ijagbo were originally seize in fee simple absolute.
6. The said Oluawo family from time immemorial exercise all acts of ownership over and above the said parcel of land such as farming dwelling and even allocating portions to both family members as well as strangers for different purposes upon being satisfied with the purpose to which the parcel of land is to be used.
7. Oluawo family of Ijagbo are descendants of three brothers namely Oyabayowa Fagoyinbo, Falola Oyelami, and Abidogun who migrated to Ijagbo over 200 years ago from their ancestral homeland of Okiki Efon near old Oyo.
8. Plaintiffs plead that on getting to Ijagbo the Ijagbo community was just evoking then hence they settled around the disputed land where they erected their houses and they area is what is today known and referred to as Oluawo Compound.
9. Plaintiffs state further that being Herbalists and farmers, the Plaintiffs progenitors could not afford to distance themselves from the growing Ijagbo community hence they carry on their family activities on the tract of land which the disputed land forms part of.
10. Plaintiffs plead that while their various residence are on the right side of Offa-Ijagbo Road facing Ajasse-Ipo, the tract of lands comprising the disputed land is on the left.
11. Plaintiffs further state that their progenitors exercised acts of ownership over the land and upon their death the control and management of the land become the responsibility of their children, principle among whom are Atinugboya, Oyatoye, Awotunde Taiwo, Malomo and Ajayi Plaintiffs shall lead evidence at the trial of this suit to demonstrate how the family land devolves from their progenitors down to the present day principle members.
12. With the advent of civilization particularly around the middle of last century their interested in farming activities hence the large tract of land was left to follow exposing same to squatter and trespassers.
13. Plaintiff states that the above occurrence prompted the Oluawo family to register their interest on the land with the then Ilorin Native authority. Plaintiff pleads and shall at the trial of this suit on plan No. F. A. 306/62 showing the extent of their family land.
14. In furtherance of the above Plaintiffs state that the Ilorin Native Authority was the predecessor of Oyun Local Government Area amongst other Area Council.
15. The Plaintiffs also pleads that in addition to the above action of the family, various portions of the land were allocated to various people mainly family members to checkmate the growing trend of trespassers on the land.
16. In the process of such allocation one Bello Yawota at the instance of a member of the family, pleaded with the family to permit him to use the disputed land an area measuring 100 feet by 50 facts for his blacksmithing business.
The incontrovertible position of the pleadings and evidence elicited by the parties, is that title in the land in dispute inhered in the Respondents who had by traditional history proved that their ancestors the three brothers acquired the large expanse of land situate at Ijagbo which land is called Oluawo Compound and the pedigree of successors-in-title up to the third generation upon which the land devolved until the granted same to the DW1, have been incontrovertibly proved.
They have also pleaded and testified to acts of ownership and possession including allocation of the land to members of the family and outsiders for farming and residential accommodation. One of the beneficiaries of the Respondents magnanimity which he as now abused and should even be sanctioned by way of forfeiture for denying the over lordships of the Respondents family through the sale of a portion of the land allocated to him to the Appellant, is Bello Yawota the DW1 in this case.
The acts of possession by the Respondents have been numerous and positive enough even from the admission of the DW1, to warrant the inference that the Respondents actually own the land and put him in possession as an allottee. There is ample evidence of acts of ownership and control by the plaintiffs’ family since 1972, as demonstrated by the giving of Kola-nuts, schnapps and hot drinks before he (the DW1) could erect his mud and wartle house not to talk of his being stopped from burying the dead on the land, his reprimanded and threatened with ejection when his mother stole and sold a cock belonging to principal member of the family Mr. Awotunde and being stopped from digging a pit for a mechanic has so on as enumerated above.
Even when he sold the land to the Appellant the family initiated proceedings against him in the Area Court Offa but the suit was subsequently withdrawn after it was discovered upon discreet investigation that the Appellant had acquired a spurious Customary Right of Occupancy on the disputed land hence the action in the High Court culminating in this appeal.
The Appellant and indeed the DW1 were basking in the false euphoria of long possession and the provisions of Section 36(4) of the Land Use Act and 146 of the Evidence Act which according to them indicate that their rights are of legal origin. This illusory assertion is belied by the settled position of the law that although the possessory right of the customary tenancy goes on and on in perpetuity unless and until forfeited for misconduct (see Silli v. Mosoka (1997) 1 NWLR (Pt. 479) 103, B. O. Nwabueze, Nigerian Land LAW, Nwamife Publishers Ltd. Enugu, 1977 Ed. at page 246; A. A. Utuama Nigeria Law of Real Property Shaneson C. I. Ltd, 1989, P, 23; Lasisi v. Tubi & Anor (1974) 12 S. C 71; and Abidoye. v. Alawode (1994) 6 NWLR (Pt. 349) P. 242, per Kawu JSC in locus classicus Abioye v. Yakubu (1991) 5 N.W.L.R (pt. 190) 130; had succinctly explained the true nature of customary tenancy in the following terms:
Customary tenancy is a grant upon terms and conditions agreed with the owners and provided that he keeps to the conditions of the grant and payment of tribute, the customary tenant can enjoy possession of his holding from year to year in perpetuity. But no matter how long he is on the land, he does not and cannot acquire ownership. He is liable to incur forfeiture and lose his tenancy on breach of the terms and conditions particularly alienation without consent and a challenge of overlord’s title.”
See further Aghenghen v. Wagboregbo (1974) 1 S. C. 7 at Pp. 8-24; Oniah v. Onyiah (1989) NWLR (pt. 99), 514; Lasisi v. Tubi 12 S.C 71 at pp, 75- 76; Akinloye v. Eyiyola (1968) NMLR 92; Isiba v. Hanson (1964) 7 All N.L.R 8.

Furthermore, Appellant can also not hide under canopy of the Land Use Act to perpetrate illegality by selling land which he knows so well that he is occupying as a gratuitous grantee or allottee, as the law is long settled by our apex Court in Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182 at 199; also reported (1989) 1 SCNJ 102 at 123 that:
“It was not the aim of the Land Use Act to convert a tenant into an owner merely by the fact that such tenant was in occupation of his landlord’s land before the inception of the Act”; Per Oputa, JSC. Indeed, the dictum of the eminent and erudite emeritus Judicial Icon was recently re-echoed by Onu, JSC; another illustrious judicial titan, in the case of Adote v. Gwar (2008) 34 NSCQR 543 at 564; where interpreting Section 34(2) of the Land Use Act, 1978 cited above by the learned Senior Counsel for the Appellant, his Lordship posited:-
“It is certainly not the intention of the law makers, in my view, that the Land titles to land. Rather, the Act is meant to strengthen ownership that derives existence through traditional history.”
Indeed, in the case of Salami v. Lawal (2008) 36 NSCQR 1018 at 1031 where a similar issue arose between the parties who were customary landlord and tenants; Oguntade, JSC; held thus:-
“That being the case the Plaintiffs’ family were lawfully in exclusive possession of the land in dispute as customary tenants, although the title to the reversion remained vested in the Timi of Ede as their customary landlord. It is trite law that customary tenants are, subject to good behaviour entitled to enjoy their use and possession of the land in perpetuity until forfeited by order of Court. See Owoade v. Omitola (1985) N.W.L.R 1 at 9; Nwawuba & Ors. V. Eremuo & Ors. (1988) 5 SCNJ 154 at 168 and Abioye v. Yakubu (1991) 5 NWLR (pt. 190) 130 at 201 to 202.”

The law is also trite that even a trespasser as the DW1 became when he sold the land to the Appellant add good possession against the whole world except the person who can show good title or the real owner as the Respondents in this case have turned out to be and have been acknowledged by the DW1. See Oluwi v. Eniola (1967) NMLR 339 at 340-347 per Lewis, JSC; Asher v. Whitlock (1865) LR1 QB page 1; per Cockburn C.J at page 5 which was quoted with approval in the locus classicus of Amakor v. Obiefuna (1974) 3 S.C 49 at 56 (reprint) per Fatayi- Williams, JSC (as he then was).
In this case it is clear that the Respondents have discharged the burden cast on them by Sections 131, 132, 133 and 134 of the Evidence Act, 2011 and as laid down in motley legal authorities like Kodilinye v. Odu (1935) & WACA 336; Okulate v. Awosanya (2000) 2 NWLR (pt. 646) 530; Archibong v. Ita (1935) 14 WACA 520, INEC v. Oshiomhole (2009) 4 NWLR (Pt. 1132) 607 at 662; Fayemi v. Oni (2009) 7 NWLR (pt.1140) 229 at 269; Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517 at 529-530; and particularly, the dicta of Chukwuma- Eneh, JSC; Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332 at 378; Onu JSC’s decision in Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 at 313; and also Akinduro v. Alaya (2007) 15 NWLR (Pt.1057) 312; earlier cited and relied upon by learned Senior Counsel for the Appellants and this Court.
The Respondents had proved that the plea long possession and enjoyment of the land and presumption of ownership as purported by DW1 and indeed the Appellant who bought the disputed land from him cannot avail them as shall be demonstrated anon.
It is pertinent to note that the Appellant has predicated his claim on the absolute title of the DW1 who had claimed that he bought the land for ?25 in 1959 and was given a written acknowledgement of the money for the land on a small paper which he kept for a long time until (sic) “it tored and was destroyed’. But apart from not pleading that fact and his half-hearted attempt in so doing in the Reply to the Amended Statement of Defence which was even a contradiction of his evidence on oath in that in the Reply to Amended Statement of Claim of the Respondents he averred:-
“In reply to paragraph 16 of the Amended Statement of Claim the 1st Defendant states that the land was an absolute purchase by Bello Yawota from the head of Oluawo family who was Late Pa. Ezekiel Fadoyin in 1952 for 50 pounds. The 1st Defendant shall lead evidence at the trial to show that the said Bello Yawota an illiterate did not obtain documents on land but kept the small paper which was an acknowledgment for the sum paid for the land’, the DW1 under cross examination turned summersault and purported that he handed over the document to his late senior brother.
Perhaps, this explained why the learned senior counsel for the Appellant at a subsequent date during the hearing of the case sought for the withdrawal of the Reply to the Amended Statement of Claim which request was granted him and the said request was accordingly struck out leaving the evidence of the acknowledgement receipt bereft of any foundation. Indeed, the court found this fact at page 61 while highlighting other contradictions, inconsistences, absurdities and debilities variously found in the testimonies of the witnesses for the Appellant, thus: “There was no pleading upon which the evidence of what happened to the purported receipt of purchase can be accommodated in this case”.
The above pieces of evidence of the DW1 apart from being self contradictory were further compounded by the witnesses who purportedly accompanied him when he paid the said sums. The court rightly highlighted them (as aptly pointed out by the learned counsel to the Respondents) in pages 55, 56 and 57 of the Judgment (pages 193- 195 of the records); and held in respect of the existence of customary tenancy relationship and outright sale of the land in dispute as claimed by the respective parties as follows:
In the instant case, there is no evidence that the Dw1 since the time the land was allocated to him was paying any form of rent of tribute to the plaintiffs’ Oluawo family, there is equally no evidence either to support the claim that the land was sold to the Dw1 by the plaintiffs’ family.”
Commenting particularly on the contradictory nature of the evidence of the DW1, DW2 and DW3 the learned trial Judge held inter alia:-
“Apart from the fact that the receipt allegedly issued to the DW1 by the plaintiffs, family following the alleged sale was not produced or tendered in evidence, a careful examination of the evidences of the 1st Defendant and his witnesses particularly DW1, DW2 and DW3 who claimed to have witnessed the alleged sale showed serious anomalies and absurdities which render those evidence not only implausible but also unreliable” see (page 194 of the Record).
The learned trial Judge after a discreet and dispassionate evaluation and appraisal of the totality of evidence elicited by the parties and their witnesses in this respect at page 57 of the Judgment (195 of the Records), not only held that the evidence of all the witnesses for the Appellant were incredible and as such no reasonable court could rely on them and further came to the conclusion that:-
“If therefore, there is no evidence that the plaintiffs’ family has divested itself of ownership to the disputed land by sale to the Dw1 then, the only reasonable conclusion that may be made is that Dw1 cannot be a purchaser, the fact that he is not paying rent notwithstanding. He is at best a tenant-at-will enjoying gratuitous grant; which of course did not remove him from the category of a customary tenant. See Ajao v. Obele (2005) 5 NWLR 405.
In a claim of ownership of land by traditional history, a plaintiff, in order to establish title to land by conclusive evidence must plead and prove such facts as:
(a) Who founded the land in dispute?
(b) How the land was founded and
(c) The particulars of the intervening owners through whom he claims.
See: Elegushi v. Oseni (2006) 14 NWLR 353.
In the instant case, plaintiffs have been able to establish the above stated facts by credible evidence.”
Accordingly the case cited by the learned senior Advocate to articulate his points on issue number one was cited out of context rather the cases of Bamigbose v. Oshoko (1988) 2 NWLR (Pt. 78) 509 at 532 or (1988) 5 SCNJ 116; were rightly cited within the context of this case since DW1 and his witnesses did not elicit credible and cogent evidence to prove that the Dw1 purchased the land in dispute directly from the Oluawo family whom he claimed transferred absolute ownership to him. There was no corroboration of his evidence by Dw2 and Dw3 as the court below, in my humble view, rightly found out from the totality of the evidence elicited by the parties after a careful evaluation and appraisal that, the testimonies of those witnesses for the Appellant were tainted with contradictions, inconsistencies, absurdities, variations and debilities.
From the foregoing, it is clear as rightly submitted by the learned counsel for the Respondents and in line with the provisions of Section 133(2) Evidence Act 2011, which is to the effect that; “If the party referred to in subsection 1 of the sections adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with”; the burden shifted to the 1st Defendant/Appellant to rebut or prove the contrary that the title of the Respondents on the land in dispute had been divested from them following the outright purchase and vesting of the absolute title of the land on the Dw1/Grantor. See the case of Itauma v. Akpe-Ime (2000) 12 NWLR (pt, 680) 157 at 156 para C-E and section 138 of the Evidence Act cited by the learned for the Respondents.
This burden, the Defendant/Appellant failed to discharge and accordingly Judgment was rightly given in favour of the Respondents on the preponderance of the credible evidence elicited by them as the Court rightly found.

ISSUE TWO: WHETHER THE EVIDENCE OF THE PW1, PW2 AND PW3 ARE CREDIBLE TO SUPPORT THE PLAINTIFFS CLAIM?
Having resolved Issue Number 1 which is based on the credibility of the evidence of the witnesses, the arguments of learned counsel for the respective parties in respect of this Issue, is repetitive and shall not be revisited. Suffice it to say that what is left to be determined on this issue is whether the Appellant acquired good title as a bona fide purchaser of the land in dispute considering the fact that the court below had held that the Dw1 who sold the land to him was a gratuitous grantee of the Respondent’s family land who had no right to sell and indeed produced no evidence of such sale from the Respondents’ family.
In this wise, the Appellant had pleaded long possession and occupation of the land for 40 years and presumption of ownership through purchase by the Dw1 Bello Yawota who acquired absolute title thereof. The question of long possession and presumption of ownership as canvassed in Issue Number 1 had also been determined when we held that the Appellant and the Dw1 cannot hide under the cloak of Section 36 (4) of the Land Use Act 1978, to deprive the Respondent of their traditional ownership of that land.
The Supreme Court in the case of Ohiaeri v. Yusuf (2009) 37 NSCQR 694 per Tabai, JSC; had cause to pronounce on the hallowed doctrine of bona fide purchaser for value without notice when he held thus: – “The settled principle is that only a subsequent bona fide purchaser of legal estate for value without notice that can take priority over someone who had acquired a prior equitable interest over the same property. This is the principle in Animashaun v. Olojo (1990) 6 NWLR (Pt. 154) 111 at 121.”
In this case although the question of priority does not arise where indeed from Exhibit 3, the DW1, DW5 and DW4 were aware that the radical title over the land in dispute was on the Respondents, yet no attempt was made to contact them in the course of their searches before purportedly purchasing the land and granting the Customary Right of Occupancy, the Appellant was not a bona fide purchaser for value in that he ought to be aware that the land was encumbered.
In the same vain the customary Right of occupancy issued to the Appellant by the 2nd Defendant is void ab initio since apart from the Agreement purportedly conveying the land to the Appellant not bearing the root of the title to the land, the consent of the chairman of the Local Government was not sought. See the case of Adole v. Gwar (2008) 34 NSQR 543 at 563-564.
From the foregoing authority I endorse completely the submissions of the learned counsel for the Respondents on the authorities of Osazuwe v. Ojo (1999) 13 NWLR (pt.634) 291-292 paras H-A and Okwaranobi v. Mbadugha (1988) 7 NWLR (pt.558) 483 paras A-B; that no presumption of ownership enured in favour of the DW1 (the Appellant’s vendor) as the correct position of the law is that a certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked.
The learned trial Judge also found out that in spite of the provisions of the Land Use Act on compensation to be paid to the Respondent’s family on their deemed customary right of occupancy which in any case has not been revoked by the Local Government before the sale of that land by the DW1, the Appellant did not settle amicably with the Respondent’s family before applying for the Right of Occupancy. Relying on the cases of Lawnson v. Anfani Con. C. Ltd. (2002) 2 NWLR 585 & 592; Ezenwa v. Oko (1999) 14 NWLR 95 & 99 and Sections 22 & 26 of the Land Use Act, the learned trial Judge had earlier held that:- “I entirely support the view of learned Plaintiff’s counsel that the 1st Defendant (Chief Ibrahim Adediji) cannot rely on the purported title of the DW1 – Bello Yawota this is because nothing has been passed to him “(see page 61-62 of the Records).
He subsequently also held, still on this Issue, rightly in my view thus:-
“I am in complete agreement with the learned plaintiffs’ counsel that there can only be a valid grant of Customary Right of Occupancy in favour of 1st Defendant after the existing Customary Right deemed in favour of the Plaintiffs has been extinguished or revoked…”
In the final analysis and after considering the totality of the evidence, the learned trial Judge held that the Plaintiffs/Respondents had proved their case on the preponderance of evidence and entered Judgment in their favour and granted all their reliefs. He consequently declared that the Plaintiffs/Respondents were entitled to the Customary Right of Occupancy over the parcel of land lying, being situate at Oluawo family land, Offa Ajasse Ipo Road, Ijagbo, Oyun Local Government Area which forms part and parcel of land contained in a land instrument No. F.A. 306/62.
He further declared the customary Right of Occupancy No. OYUN/LUD/CR of 0/320 granted the 1st Defendant as null and void and set same aside with N10,000.00 costs (Ten thousand naira only) as damages in favour of the Plaintiff. The learned trial Judge finally granted the order of perpetual injunction restraining the 1st Defendant, whether by himself, servants, agents and or privies from committing further acts of trespass on the said parcel of land as prayed by the Plaintiffs/ Respondents.
Now upon a careful perusal of the Record of proceedings, I am in total agreement with the learned counsel for the Respondents that this is a case where the learned trial Judge did all it was expected in the evaluation and appraisal of the evidence available and he rightly came to the inevitable conclusion that the Plaintiffs/Respondents proved their case on the balance of probability.
As has been held in a plethora case, one of which is Obiora v. Akukwu (2005) 5 NWLR (pt.658) 705 para D-E ably cited by the learned Counsel for the Respondents, see Dim v. Enemuo (supra); Fashanu v. Adekoya (1974) 6 S.C 83; Sagay v. Sajere (2000) 6 NWLR (pt. 661) 360; Ebba v. Ogodo (1984) 1 SCNLR 372; Nnorodim v. Ezeani (2001) 5 NWLR (Pt. 706) 203 and Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65 referred to once a trial Court had creditably discharged its primary function of evaluating evidence and making findings which were reasonably supported by the evidence as in the instant case, this Court as an Appellate Court is precluded from interfering with such findings except there are extenuating circumstances which do not exist in this case. See Adusei v. Adebayo (2012) 3 NWLR (pt.1255) 534 at 564-565 SC per Ngwuta, JSC; Odusote v. Odusote (2012) 3 NWLR (pt.1288) 478 CA; Oyewole v. Akande (2009) 15 NWLR (pt. 1169) 119; Ebba v. Ogodo (1984) 1 SCNLR 372 and Nneji v. Chukwu (1996) 10 NWLR (pt.478) 265.
On the whole this appeal lacks merit and is accordingly dismissed. The Judgment of the High Court of Justice, Kwara State Holden at Offa, delivered on the 23rd day of October, 2007 per M.O. Adewara, J, is hereby affirmed. I award N30, 000.00 costs (Thirty Thousand Naira) in favour of the Respondents jointly.

ITA GEORGE MBABA, J.C.A.: I had the advantage of reading before now, the draft of the judgment just delivered by learned brother I.I. Agube JCA. I agree with him completely.
I have to add that, it is trite principle of law that certificate of occupancy is only a prima facie evidence of title to land and it readily gives way to a better title, where there has been in existence, at the time of the grant customary owners of the land, whose interest had not been divested. See the case of Kaigama v. Namnai (1997) 3 NWLR (pt. 495) 495 @ 545, where this court per Edozies (as he then was) held:
“A certificate of occupancy is a prima facie evidence of title, but it will give way to better title. Furthermore, for certificate of occupancy to be valid, there must not be in existence, at the time it was issued, customary owner who has not been divested of his title.”
See also the case Oluhunde v. Adeyoju (2000) 78 LRCN 2297; Kyan v. Alkali (2001) 5 SC (pt.2) 192; Ogunleye v. Oni (1990) 2 NWLR (pt.135) 748; the unreported decision of this court in CA/J/6/2008; Young Farmers Association Mallam Abba & Garin Hausa in Gassol LG v. Baba Liya & Anor; delivered on 23/6/2011.
In the case of UDO v. EFFIOM (2008) ALL FWLR (PT. 414) 1556 at 1581, it was held:
“A certificate of occupancy can only be valid if the root of title originates from the customary owners of the property and that the property was properly acquired through the persons who were holders. There is a duty on the acquiring authority to adhere strictly to the formalities for the compulsory acquisition of property.”
It is obvious, from the finding of the lower court in this appeal that the Appellant was a customary tenant of the Respondents in respect of the land on which the surreptitiously obtained certificate of occupancy. That was in breach of the terms of the customary tenancy as it amounted to a challenge of the reversionary rights of the over lords.
In the case of Abioye V. Yakubu (supra) already referred in the lead judgment:
“Customary tenancy is a grant upon terms and conditions agreed with the owners and provided that he keeps to the conditions of the grant and payment of tribute, the customary tenant can enjoy possession of his holding from year to year in perpetuity. But no matter how long he is on the land, he does not and cannot acquire ownership. He is liable to incur forfeiture and lose his tenancy on breach of the conditions, particularly alienation without consent and a challenge of overlords title.” See also Akintola V. Oyelade (1993) 3 NWLR (pt. 349) 382; Aghenghen V. Wagboregbo (1974) 1 SC 1 @ 8; Oniah V. Onyiah (1989) NWLR (pt.99) 514.
In so far as the act of the Appellant did not receive the prior blessing of the Respondents and the Appellants even openly challenged the title of his overlords. ‘He’ has forfeited his right of protection under the tenancy. The learned trial judge was therefore right in his conclusions.
For this and more reasons ably articulated by Agube JCA in the lead judgment, I too dismiss the appeal for lack of merit, and affirm the judgment of the trial court.
I also abide by the consequential orders in the lead judgment.

OBANDE OGBUINYA, J.C.A.: I have had a preview of the lucid leading judgment delivered by my learned brother, Ignatius Igwe Agube, JCA, and I am, completely, at one with his reasons and conclusions.
The lower court, on page 194 of the printed record, reached a finding that the appellant’s vendor, Bello Yawota whom the appellant fielded as DW21, did not purchase the land in dispute from the respondents, the Oluawo family. That finding, to my mind, is as unassailable as it is impeccable in that it is a total reflection of the bags of evidence before the lower court. On this premise, I will not tinker with it. Since the disputed land was not sold to the appellant’s purported predecessor-in-title, Bello Yawota, by the respondent’s (Oluawo) family, the former, Bello Yawota, had no vested interest therein to, lawfully, pass to the appellant. By law, nobody gives out to another what he does not have. In the Latin days of the law, it is nemo dat quod non habet, which has firmly taken root in our legal system.
See Ashiru V. Olukoya (2006) 11 NWLR (pt. 990) 1; Omiyale V. Macaulay (2009) 7 NWLR (Pt. 1141) 597; Ilona V. Idakwo (2003) 11 NWLR (Pt. 830) 53; Dadi V. Garba (1995) 95 SCNJ 232; Nsiegbe V. Mgbenema (2007) 10 NWLR (Pt. 1043) 364.
It flows from the above ageless principle of law that what Bello Yawota bequeathed to the appellant was a phantom title over the disputed land since he had none (title) to transfer to him. That phoney title, as it were, purportedly transferred to appellant cannot, by any stretch of interpretation, torpedo the respondents’ deemed proprietary right acquired under the sacrosanct provision of section 36 of the Land Use Act, Cap. L5, Laws of Federation of Nigeria, 2004. Simply put, the respondents’ statutory right over the land in dispute ranks superior to the appellant’s pseudo-title even with the spurious certificate of occupancy that adorns it See. Admin/Exec. Estate, Abacha V. Eke-stiff (2009) 7 NWLR (Pt. 1139) 97. I dare say, the appellant, perhaps unwittingly, bought a law suit from his vendor, Bello Yawota, and the law cannot come to his aid. It is too unfortunate!
On the strength of the foregoing reasons, added to the detailed reasons proffered in the leading judgment, I hold that the appeal is devoid of tinge of merit. I, too, visit dismissal on it. I abide by the orders made in the leading judgment.

Appearances

IWALOLA BELLO (MRS) WITH TOSIN ALAWODE ESQ. AND RASAQ DAIBU ESQ. For Appellant

AND

SIKIRU ADEWOYE ESQ. For Respondent