MADAM NUSIRAT AKANKE TIJANI & ANOR v. CHIEF GANIYU OLALERE AKINPELU & ORS.
(2012)LCN/5346(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of May, 2012
CA/I/233/2006
RATIO
PRELIMINARY OBJECTION: WHERE A RESPONDENT INCORPORATES A PRELIMINARY OBJECTION IN RESPONDENT’S BRIEF OF ARGUMENT, IT IS IMPERATIVE ON THE RESPONDENT TO MOVE THE COURT TO TAKE THE PRELIMINARY OBJECTION BEFORE THE MAIN APPEAL
“Where a respondent incorporates a Preliminary Objection in the respondents’ brief of argument it is imperative on the respondent to move the court to take the Preliminary Objection before proceeding with the main appeal. See Mkpen Tiza & 1 Or vs. Iorakpan Begha (2005) 15 NWLR (pt.949) 616 and Onochi & Anor us. Odogwu & Anon (2006) 6 NWLR (pt.975) 65 at 79. However, where the respondent does not apply for or seek leave of court before the hearing of an appeal to move his Preliminary Objection to the appellants’ grounds of appeal, the Preliminary Objection shall be deemed abandoned. See Nsirim vs. Nsirim (1990) 3 NWLR (Pt.738) 215 Arewa Textile Plc. vs. Abdulkadir Brothers Ltd. (1998) 6 NWLR (pt.554) 508 and L.S.W.C. vs. Sakamori Const (Nig.) Ltd 2011 NWLR (pt.1262) 569; Ishola & 4 ors vs. Folorunso & Anor. (2010) 5-7 SC (pt.1) 44 at 106.” Per MSHELIA J.C.A.
“It is now settled law that a party may prove title to a piece of land in any of the following five ways: (a) By traditional evidence; (b) By documents of title; (c) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership; (d) By act of long enjoyment and possession of the land; (e) By proof of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the disputed land. See: Idundun v. Okumagba (1976) 9-10 SC 227 at 248; Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511; Runsewe v. Odutola (1996) 3 SCNJ 33 and Kano v. Maikaji (2011) 17 NWLR (Pt.1275) 139.” Per MSHELIA J.C.A.
“In an action for declaration of the title to land, where the claimant relies on traditional history as this case, the respondents have the duty to plead and prove:- (a) The founder of the land; (b) How the land was founded (c) The intervening owners through whom he derived his title and their particulars. See: Dakolo v. Reware Dakolo (2011) 16 NWLR (Pt.1272) 22 at 47 – 48 paras A – C and Odi v. Osafile (1987) 2 NWLR (Pt. 57) 510.” Per MSHELIA J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. MADAM NUSIRAT AKANKE TIJANI
2. ALHAJI MURITALA ADEBAYO RIJANI Appellant(s)
AND
1. CHIEF GANIYU OLALERE AKINPELU
2. MR. KASALI AKINOLA
3. LASISI AJANI AKINPELU
4. ADAMATIC NIGERIA LIMITED
5. MR. UDI
6. MR. BASIRU SALAWU Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Oyo State, Ibadan Judicial Division delivered on the 27th February, 2006 by Akinola J.
The plaintiffs now appellants, before this court, claimed at the lower court against the respondents jointly and severally as follows:-
(i) Declaration that plaintiffs are the persons entitled to the statutory rights of occupancy over all that piece or parcel of land situate lying and being at Arooye village, Ajia Road, Ibadan.
(ii) Declaration that the transfer of part of the said piece of land by the 1st and 3rd Defendants to the 2nd, 4th, 5th and 6th Defendants is unlawful, illegal null and void.
(iii) An order of perpetual injunction restraining all the Defendants whether by themselves, their privies, agents or servants from entering the said piece or parcel of land and committing further acts of trespass.
(iv) The sum of Ten Thousand Naira (N10,000.00) only against all the defendants jointly and severally as general damages for acts of trespass committed and being committed on the plaintiffs land situate, lying and being at Arooye village, Ajia Road, Ibadan.
Issues were joined by parties. Defendants filed a statement of defence dated 23/6/2003, and plaintiffs thereafter filed a reply dated 20/01/2004 containing 17 paragraphs.
The case of the appellants was that they inherited the land in dispute from their father one Tijani Akangbe Ogunniran and later by purchase from Salawu Akande Akinpelu and Akinade Adisa Akinpelu who were members of 1st and 3rd respondents family. It was also their case that the original owner of the land was one Osunkeye Kereke who begat Akinpelu Osunkeye and that it was the said Akinpelu Osunkeye who gave the land to their father a gift before same was inherited by them after the death of their father but the same land was later purchased by them.
The respondents pleaded that the land in dispute was Sooko family land. The said Sooko was the first person to settle on same when it was a virgin forest. It was the case of the respondents that Akinade Adisa Akinpelu and Salawu Akande Akinpelu were the great grand children of Sooko, which claim was not contradicted. That the appellants alleged vendors were from Osunkeye Branch of Sooko family. Respondents also stated that Sooko family land was not partitioned and as such the said appellants’ vendors would have no reason to sell the land not being their personal land.
At the trial appellant called five witnesses and tendered exhibits. While respondents called four witnesses and also tendered exhibits. Written addresses were submitted by both counsel, In a considered judgment delivered on the 27th February, 2006 the learned trial judge dismissed the plaintiffs’ (appellants’) claim in its entirety. See pages 95-116 of the record.
Being dissatisfied with the said judgment, the appellants appealed against same by Notice of Appeal filed on the 25th of April, 2006, containing 6 grounds of appeal. Also pursuant to the leave of this court granted on the 28th of April, 2008, this court allowed the appellant to adduce further evidence in this court which was marked Exhibit ‘AA1′ and allowed to be used as exhibit 6 and later reproduced in the brief of argument. In compliance with the rules of this court, appellants’ brief of argument was filed on 7/6/10 while respondents’ brief of argument was filed on 18/01/11. Appellants also filed a reply brief on 28/2/11.
Appellants distilled two issues from the six grounds of appeal for determination as follows:-
1. Whether by state of pleadings and Exhibits tendered particularly Exhibit 6, the plaintiffs/appellants have not proved their claims to be entitled to relief’s sought.
2. Whether the plaintiffs have not proved or established their title to the land in dispute by long possession.
Respondents also formulated two issues for determination thus:-
1. Whether the appellants established by credible evidence ownership of the land in dispute. Grounds 1 and 2.
2. Whether the learned trial judge was wrong when he held that the vendors in exhibit 3 had no capacity to sell the land in dispute to the appellant. Grounds 3, 4, 5 and 6.
I have observed that the respondents raised Preliminary Objection in the respondents’ brief of argument challenging the grounds of appeal filed by the appellants. It has to be resolved before delving into the merit of the appeal. When the appeal came up on 28/2/12 for hearing the record showed that respondents’ counsel allowed the appellants’ counsel to adopt appellants’ brief of argument’ as well as the reply brief. Respondents’ counsel also adopted and relied on the respondents’ brief of argument filed on 18/01/11 Respondents’ counsel did not inform the court that he incorporated Preliminary Objection in respondents’ brief of argument. In short the argument canvassed in respect of the Preliminary Objection was not adopted at the hearing of the appeal. Where a respondent incorporates a Preliminary Objection in the respondents’ brief of argument it is imperative on the respondent to move the court to take the Preliminary Objection before proceeding with the main appeal. See Mkpen Tiza & 1 Or vs. Iorakpan Begha (2005) 15 NWLR (pt.949) 616 and Onochi & Anor us. Odogwu & Anon (2006) 6 NWLR (pt.975) 65 at 79. However, where the respondent does not apply for or seek leave of court before the hearing of an appeal to move his Preliminary Objection to the appellants’ grounds of appeal, the Preliminary Objection shall be deemed abandoned. See Nsirim vs. Nsirim (1990) 3 NWLR (Pt.738) 215 Arewa ile Plc. vs. Abdulkadir Brothers Ltd. (1998) 6 NWLR (pt.554) 508 and L.S.W.C. vs. Sakamori Const (Nig.) Ltd 2011 NWLR (pt.1262) 569; Ishola & 4 ors vs. Folorunso & Anor. (2010) 5-7 SC (pt.1) 44 at 106. In view of the fact that the respondents’ counsel did not seek leave of court before the hearing of the appeal to move the Preliminary Objection, same is hereby deemed abandoned. I will accordingly discountenance it.
I consider the issues formulated by the appellant as adequate and appropriate in determining the appeal.
As regards issue No.1 appellants’ counsel submitted that throughout the pleadings and evidence adduced by the respondents at the trial and erroneously believed by the trial judge was that the land belonged to Sooko family and not Kereke. That Exhibit 6 completely and radically knocked out the persistent false hood that the land belonged to Sooko family. To emphasize the effect of the solemn admission made by counsel in exhibit 6, reliance was placed on the case of Mosheshe General Merchant Ltd. vs. Nigeria Steel Products (1987) 4 SC 152 at 154. See also Nwafor Elike vs. Ihemereme Nwankwoal & Ors 1984 12 SC 301 and Strenges vs. Stranaus 1966 C R I Q V S 379. That exhibit 6 being documentary evidence, should be used as a hanger to test the veracity of the oral testimony of the defendants. Learned counsel submitted that the appellants have proved that the land belonged to Kereke and had been rightfully sold by Kereke family members. It was further contended that exhibit 6 created and cast serious doubt as a whole on the case presented by the respondents that would make the appellants be entitled to judgment. See Ogun vs. Akinpelu 20 NSQLR 302; Nwokwo vs. Onama (1999) 12 NWLR (pt.631) 342; Enahoro vs. The Queen 1965 NMLR 265; Emulator vs. The State 17975 9-11 SC 107 and Gaji vs. Payle 2003 JSC 53 at 61. Counsel urged the court to resolve issue 1 in favour of the appellants and hold that the lower court failed in its finding that the land belonged to Sooko.
The response of the respondent is as canvassed under issue 1. Respondents’ counsel referred to paragraph 3 of the statement of claim at page 16 of the record and contended that appellants relied on gift and purchase of the land in dispute. Appellants cannot claim both gift and purchase. Learned counsel submitted that by paragraph 3 of the statement of claim and evidence of 2nd appellant, appellants traced their title to Akinpelu-Osunkeye Kereke but failed woefully to establish by evidence how their grantor came to have title to the land vested in him. It was submitted that throughout the pleadings of the appellants there was nowhere it was pleaded how the land was founded and by whom. That it is not enough to plead that Osunkeye Kereke was the original, owner without proving how the said Osunkeye Kereke founded the land, Until the title of Akinpelu Osunkeye Kereke was established the devolution of same from appellants’ ancestor to them can be proper. See Mogaji vs. Cadbury (1985) 2 NWLR (pt.7) 393 and Alade vs. Awo (1975) 4 SC 215 at 229.
It was further submitted that appellants tendered exhibit 3 to show that land was sold to them by one Mr. Akinade Adisa Akinpelu and Salawu Akande Akinpelu. Learned counsel however contended that from the pleadings and evidence, they admitted the land in dispute is Kereke family land. Assuming without conceding that the land is Kereke family land, the appellants failed to establish how the kereke family land devolved on the two vendors for them to have capacity to sell the land to the appellants. Counsel referred to paragraph 14 of the reply to the statement of defence and contended that appellants did not plead that the land was partitioned to entitle the vendors in exhibit 3 to sell the land having pleaded that it was a family land. That both Salawu Akinpelu and Akinade Adisa Akinpelu could not have affected a valid sale of the land, having sold same in their personal capacity as owners. It was argued that sale of unpartitioned family land unilaterally by a member without consent of the principal member is void. See Agboye v. Igbira (1997) 9 NWLR (Pt.519) 40; Odukwe vs. Ogunbiyi (1998) 6 SCNJ 102 at 144; Odekilekun v. Hassan (1997) 10 & 12 SCNJ 114 at 127 and Salako vs. Dosumu (1997) 7 SCNJ 278.
As regards exhibit 6 heavily relied upon by appellants’, respondents’ counsel contended that appellants did not in their pleading link the land in dispute with contents of exhibit 6. That the said exhibit 6 was pleaded in paragraph 7 of the reply to statement of defence only to show that the 1st led credible evidence in support of their pleadings particularly paragraphs 15, 16, 17, 18, 19, 20 and 21 of the statement of defence and established that the land originally belongs to Sooko. That the case of the respondents was preferable to that of the appellants. By paragraphs 15-25 of the statement of defence respondents traced the history of the land from inception to the present time, while appellants’ pleadings and evidence were not reliable and self contradictory. Counsel further submitted that the case of the respondent that Sooko was the original owner of the land before it devolved on his descendants is preferable as that evidence is uncontroverted. That 2nd respondent led evidence to show that Osunkeye Kereke was one of the children of Sooko the original owner of the land in dispute. Evidence was also led that Sooko’s land was never partitioned. 1st respondent to strengthen their claim also gave evidence that a well was dug by Sooko family on the land in dispute. These pieces of evidence were not challenged nor controverted by the appellants. Learned counsel also argued that the letter dated 28th September, 2001 written by messrs Akande Ajofeitmi & Co. was not pleaded nor tendered as the contents of same will reveal which land was referred to in exhibit ‘6’. That exhibit 6 cannot be considered in isolation and it cannot also bind the other respondents. Counsel further stated that even assuming without conceding that the land in question in exhibit 6 is the land in dispute, the said exhibit is not of any value to the appellants’ case as all that the exhibit is saying is that the land in question is Kereke family land and nothing more. Counsel urged the court to hold that even if exhibit 6 is considered along with this case, it does not help appellants’ case in any way since the title of the Kereke family must first be established with certainty which appellants failed to do. See Elias vs. Omobare (1982) 5 SC at 57-58.
Respondents’ counsel also contended that appellants failed to challenge or contradict various evidence led by the respondents which showed that the land in dispute was in exclusive possession of the respondents. Counsel urged the court to believe same as proof of the fact or issue in respect of which the evidence was given. Reliance was placed on Osibakoro Otuedon vs. Ambrose Olughor (1997) 7 SCNJ 411 at 434 and Seismograph Service Ltd vs. Akporuovo (1974) 6 SC 119 at 136. Respondents also tendered exhibit 5 to show that Sooko family collect rents from 2nd, 4th & 6th respondents. That the learned trial judge was right in dismissing the claim of the appellants having failed to prove a good and better title. See Clay Industries vs. Aina (1997) SCNJ 491 at 508.
It is apparent from the pleadings and evidence adduced that parties are in agreement as to the location of the land in dispute. By paragraph 3 of the statement of claim appellants described the land in dispute as “piece or parcel of land situate, lying and being at Arooye Area, Gbaremu Agugu along Ajia Road, Ibadan”. The survey plans tendered as exhibits 1, 2 and 4 by parties described the location of the land in dispute in line with paragraph 3 of the statement of claim. The plans exhibits 1 and 4 also indicate the well referred to in paragraph 24 of the respondents’ statement of defence. The averment in paragraph 24 read thus:
“Defendants aver family well is still on the land in dispute”.
The identity of the land was not made an issue in this case. Appellants have therefore discharged the onus placed on them to satisfy the court that the area of land to which their claim relates is certain. See Awote vs. Owodunni (2) (1987) 2 NWLR (Pt.57) 367.
As averred in paragraph 3 of the statement of claim appellants are claiming the land in dispute by inheritance and purchase. It is well established that a plaintiff seeking for a declaration of title to land bears the onerous duty in law to adduce credible and admissible evidence in establishment of such title. The plaintiff must succeed on the strength of his own case except where the evidence adduced by the defendant strongly supports his case. In M. S. Yusuf v. Madam I Adegoke and another (2007) 11 NWLR (pt.1045) 332 at 353 and 378, the Supreme Court held among others 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 pleadings and his case will collapse if he fails to discharge that duty. The burden rests squarely on the 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 a defence where the onus of proof on the plaintiff in such cases is not discharged. The weakness of defence case will not help the plaintiff’s case and the proper judgment is for the defence. In the instant case, the respondents having failed to discharge the onus on them in this regard, their action was bound to be dismissed outrightly.”
It is now settled law that a party may prove title to a piece of land in any of the following five ways:
(a) By traditional evidence;
(b) By documents of title;
(c) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership;
(d) By act of long enjoyment and possession of the land;
(e) By proof of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the disputed land. See: Idundun v. Okumagba (1976) 9-10 SC 227 at 248; Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511; Runsewe v. Odutola (1996) 3 SCNJ 33 and Kano v. Maikaji (2011) 17 NWLR (Pt.1275) 139.
The main thrust of the appellants’ case at the lower court was that their grandfather Ogunniran Ojo Arokokalu was outrightly granted the land by the 1st and 3rd defendants grandfather Akinpelu Osunkeye Kereke under native law and custom without paying rents. By inheritance after the demise of the said grantee his son Tijani Akangbe Ogunniran farmed on the land for more than fifty years. The plaintiffs are the children of Tijani Akangbe Ogunniran. The plaintiffs/appellants continued to farm on the land undisturbed until the present hostilities. When hostilities emanated, the appellants then agreed, elected and repurchased the said disputed land from DW2 and the 3rd defendant father named Salawu Akanke Akinpelu and his uncle Akinade Adisa Akinpelu in 1976. The said vendors are the children of Akinpelu Osunkeye Kereke who died in 1962.
On the issue of inheritance raised by the appellants, the learned trial judge examined paragraphs 3, 9 and 14 of the statement of claim and the testimony of PW2 (2nd plaintiff/appellant) and concluded that the plaintiffs/appellants failed to establish their ownership of the land through inheritance. For clarity I will reproduce the relevant pleadings and evidence. The appellants in paragraph 3 of their statement of claim pleaded in part thus:-
“…Akinpelu Osunkeye Kereke who gave the disputed land to the plaintiffs’ grandfather for cultivation as a gift because of love and affection existed between them.”
In paragraph 9 of the statement of claim appellants pleaded that their father, Tijani Akangbe Ogunniran cultivated the land in dispute for about thirty -five years without hindrance before he died in 1967. Furthermore, in paragraph 14 of the appellants’ statement of claim they pleaded that the appellants bought the land in dispute from two children of late Akinpelu Osunkeye Kereke named Salawu Akande Akinpelu and Akande Adisa Akinpelu for the sum of Three Hundred Naira.
The 2nd plaintiff who testified as PW2 stated in evidence as follows:
“My father, Tijani Akande Ogunniran called us his children together and said the grandfather of the 1st and 3rd defendants put him on the land at Arooye Village to farm on, that he was not the owner of the land. He, however, advised us that if in the future the owners of the land intended to sell the land, we should do our best to buy the land so that he would not have laboured on it in vain.”
See:- page 43 of the record lines 11-18.
It is evident that the testimony of PW2 is at variance with the pleaded fact in paragraph 3 of the statement of claim reproduced supra. The learned trial judge was therefore right when he said that the claim of the plaintiffs that the land in dispute was given by Akinpelu Osunkeye Kereke, the grandfather of the 1st and 3rd Defendants, to their own grandfather Ogunniran Ojo Arokalu must be taken with a pinch of salt. It is clear from the testimony of PW2 that the land in dispute was not given to the appellants’ father as a gift as claimed by them.
The next point to resolve is whether appellants have established by credible evidence that they purchased the land in dispute in 1976 vide exhibit three as pleaded in paragraphs 13 and 14 of the statement of claim. Appellants claimed they bought the land in dispute from Salawu Akande Akinpelu and Akinade Adisa Akinpelu Osunkeye two of them children of Akinpelu Osunkeye Kereke. The respondents denied the sale in paragraphs 12 and 13 of their statement of defence and DW2 also denied the sale in his evidence. The respondents who were defendants in the court below pleaded traditional history of the land in dispute. DW2 testified in line with their pleadings. DW2’s testimony was that one Sooko was the first person to settle on the land in dispute. He said Sooko had four children by name Osunkeye Kereke, Ogungbemi, Oderinde and Ojo Akamo. That Osunkeye Kereke begat Akinpelu, Akinpelu is not alive but he had children. The said Akinpelu begat Salawu and Akinade. Though Salawu is dead he begat Ganiyu Olalere Akinpelu (2nd defendant) and Lasisi Ajani Akinpelu (the 3rd defendant). Ogungbemi is deceased but he begat Bolarinwa, The witness narrated the remaining children up to the last person. The witness further testified that Sooko land has not been partitioned by his descendants.
In an action for declaration of the title to land, where the claimant relies on traditional history as this case, the respondents have the duty to plead and prove:-
(a) The founder of the land;
(b) How the land was founded
(c) The intervening owners through whom he derived his title and their particulars.
See: Dakolo v. Reware Dakolo (2011) 16 NWLR (Pt.1272) 22 at 47 – 48 paras A – C and Odi v. Osafile (1987) 2 NWLR (Pt. 57) 510.
In the instant case the respondents by their pleadings and evidence proved the founder of the land in dispute, how it was founded and the intervening owners through whom they derived title. Respondents have established by credible and uncontroverted evidence that the land in dispute belonged to Sooko family members. The findings of the learned trial judge appearing at pages 113 – 114 of the record cannot be faulted, He had this to say:-
“The Defendants through their pleadings and the evidence established that the land in dispute belongs to sooko family. They also estabtished that Salawu Akande Akinpelu and Akinade Adisa Akinpetu lacked capacity to sell the land in dispute to the plaintiffs when they did.”
Appellants, counsel relied heavily on exhibit 6 the additional evidence allowed by this court, to show that the vendors of the appellants have the capacity to sell the land in dispute, since the land belonged to Kereke family. Exhibit 6 was pleaded in paragraph 7 of the statement of claim’ Appellants, counsel stated the correct position of the law as enunciated by the Supreme Court in Mosheshe General Merchant Ltd v. Nigeria and Steel Products (1987) 4 SC 152 at 152. The Supreme Court held that parties are bound by the solemn admissions made by their counsel in relation to their cases. In the instant case there are six respondents. It is clear from exhibit 6 that the letter was written on behalf of one Kasali Akinola possibly 2nd Respondent in this case. The question is can the admission bind the other five Respondents? Following the decision of the Supreme Court in Abukar vs. Yar Adua (2008) 19 NWLR (Pt.1120) 171 Paras F – G and Buhari v. INEC & Ors. (2008) 19 NWLR (Pt.1120) 246 at 422 paragraph B-C admission by one respondent cannot bind other respondents.
There is also no clear evidence as to whether exhibit 6 relates to the land in dispute. Appellant ought to have pleaded and tender the letter dated 28th September, 2001 which was referred to in exhibit 6. Be that as it may even if exhibit 6 is accepted that it relates to the land in dispute, the traditional history narrated by DW2 remained uncontroverted. The evidence of DW2 who is also the head of the Sooko family is very clear on the genealogy of Sooko family. Kereke family is a branch of Sooko family. It is in evidence that Sooko family land have never been partitioned. If appellants are saying that the land is owned by Kereke family then they have to prove how Kereke family got this land. There is no such evidence on record. See: Agboke v. Igbira (1997) 9 NWLR (Pt.519) 40 at 46-47. It is settled law that a sale of family land by a member of the family without the consent of the head and the principal members of the family is void abinitio. See Odukwe v. Ogunbiyi (1998) 6 SNJ 102 at 114; Kano v. Maikaji (2011) 17 NWLR (Pt.1275) 139 and Salako vs. Dosumu (1997) 7 SCNJ 278. As earlier stated Sooko family land was never partitioned. Any branch of the family claiming ownership of family land has to plead and prove partition. As rightly held by the learned trial judge the father of the 1st and 3rd respondents have no capacity to sell the land in dispute in 1976 as they were neither the head of Sooko family nor principal members of same. Exhibit 3 cannot and does not confer title on the appellants. Appellants have therefore failed to discharge the burden of proof placed on them to prove by credible evidence their root of title to the land in dispute. I will accordingly resolve issue 1 in favour of the respondents.
Issue No. 2, is whether the plaintiffs have not proved or established their title to the land in dispute by long possession. While arguing this issue, learned counsel submitted that in land matters, one of the ways by which the plaintiff could establish his title to land is by long possession. Reliance was placed on Idundun v. Okunmagba (1976) 10 NSCC 445; Oyadare v. Keji 21 NSCQR 58 at 61 and Ezennnah vs. Atta (2004) 17 NSCQR 615 and as followed by a long line of other decided authorities. Learned counsel contended that a plaintiff that succeeds in proving acts of possession can obtain judgment. It was contended that where the plaintiff proves sufficient acts of possession, the burden is thrown on the defendant under S.145 of the Evidence Act to prove the contrary. Learned counsel submitted that in the instant case there is evidence on record that the plaintiffs’ father, Tijani Ogunniran had for several years farmed on the land. Thereafter, the 2nd plaintiff took possession, physical and absolute control and management of the land. It was argued that these acts which are numerous and positive enough to warrant the inference that the family of the plaintiffs are the true owners of the land, Thus the plaintiffs who have been in possession for more than 50 years exercising, all acts of ownership are thereby entitled to judgment. See Ekpo vs. Ita v. 11 NCR 68 at 69. That the learned trial judge failed to make any finding of facts on the possessory evidence adduced by the plaintiffs and his witnesses. Learned counsel contended that the learned trial judge made heavy weather on the fact that exhibit 3 cannot and does not confer title on the plaintiffs. It was submitted that Salawu Akande Akinpelu being head of Kereke family and Akinade Adisa Akinpelu had absolute authority to covey, dispose, alienate, sell and transfer their land to the appellants. Appellants relied on exhibit 6 and evidence of their witnesses, Learned counsel in his submission emphasized the power and function of the head of the family. Reliance was placed on Akapo vs. Hakeem-Habeeb & Ors. (1992) 7 SCNJ 119 at 141; Balogun v. Balogun (1935) 2 WACA 290 and Agaran v. Olushi 1 NLR 67. Learned counsel urged the court to hold that Salawu Akande Akinpelu being the head of Kereke family as shown in exhibit 6 is entitled in law to convey transfer, alienate and sell the Kereke family as he did along with Akinade Adisa Akinpelu to the appellants and that the sale is valid.
In response, respondents’ counsel submitted that the learned trial judge rightly held that both Salawu Akande and Akinade Akinpelu who were both appellants vendors lacked capacity to sell the land in dispute to the appellants because the land is Sooko family land and the alleged vendors were neither head of Sooko family nor principal members of same. It was argued that the genealogy of Sooko family as pleaded is very clear. Reliance was placed on paragraphs 16, 17, 18, 20 and 21 of the respondents’ statement of defence. Learned counsel contended that Osunkeye Kereke is a branch of Sooko family being one of the children of Sooko. This fact is not disputed. It was submitted that in paragraph 3 of the statement of claim, appellants pleaded that Akinpelu-Osunkeye Kereke gave the disputed land to their grandfather, but failed to plead who was the father of the said Akinpelu-Osunkeye Kereke, They also failed to plead and lead evidence as to how the said Akinpelu Osunkeye Kereke got to the land in dispute. Was it by grant, purchase or settlement? That appellants failed to discharge the burden on them.
It was further argued that where tradition is relied on in proof of declaration of title to land, the burden is on the plaintiff to plead and prove facts such as:
(a) Who founded the land,
(b) How he founded the land, and
(c) Particulars of intervening owners through whom he claims. See Ibilasa Amabaronye vs. Nelson Nwakaihe (1997) 1 SCNJ 161 at 168 and Onwugbufor vs. Okoye (1996) 1 NWLR (pt. 424) 252 at 280.
Learned counsel contended that the conclusion of the learned trial judge that the appellants’ vendors were members of Sooko family and the land being Sooko family land, the vendors cannot dispose same, cannot be faulted. That it was not in the appellants pleadings that either of the vendors was Sooko family head or principal member. That transaction purporting to transfer family land without these essentials will be void. See Odekilekun vs. Hassan (1997) 11 & 12 SCNJ 114 at 726 and Alani Salako vs. Olatunji Dosumu (1997) 7 SCNJ 278.
On the complaint of long possession raised by the appellants, respondents’ counsel submitted that long possession cannot avail the appellants. Reliance was placed on Mogaji vs. Cadbury (1985) 2 NWLR (pt.7) 393. That appellants cannot claim long possession as they never proved exclusive, possession of the land in dispute. That the respondents on the other hand, proved before the court that appellants never exercised acts of ownership on the land and were never in long possession. Respondents pleaded and led evidence through DW2 that their grandfather did not grant the land in dispute to the appellants’ grandfather. DW2 further gave evidence that the appellants and their grandfather never at any time cultivate any part of the land in dispute. Learned counsel referred to paragraph 24 of the statement of defence in which the respondents pleaded that they have family well on the land in dispute. Counsel concluded his submission by contending that long possession cannot avail the appellants and urged the court to resolve this issue in favour of the appellants.
Appellants’ contention is that they have proved sufficient acts of possession to be entitled to judgment. From the pleadings and evidence adduced appellants have failed to establish by cogent and credible evidence that they were in exclusive possession of the land in dispute. The vendors from whom they claimed to have purchased the land in dispute have no capacity to sell a family land. Appellants failed to establish their root of title as such the alleged acts of long possession would have no foundation and must crumble. Respondents pleaded and led evidence through DW2 that their grandfather did not grant the land in dispute to the appellants’ grandfather. Respondents also pleaded in paragraph 24 of their statement of defence that they have a family well on the land in dispute. DW2 testified in support of the pleaded fact as follows:
“There is a well on the land in dispute. The well was dug by Sooko family, The plaintiff never disturbed us when we were digging the well”.
PW2 also stated that “there is a well on the land in dispute. I did not dig it. I do not know when it was dug, I am fifty years old. I have always been living in Ibadan since my birth”.
This piece of evidence points to the fact that the land was in possession of the respondents and not the appellants. Once the original owner is known, the burden of proof is on the person claiming to have been divested of interest in the property. See Odi vs. Osafile (1987) 2 NWLR (pt.57) 510 and Balogun us. Akanji (1988) 1 NWLR (pt.70) 301 and Insiba vs. J. Thansor (1996) NMLR 76. I agree with respondents’ counsel that acts of long possession cannot avail the appellants.
I will accordingly resolve issue 2 in favour of the respondents. On the whole, it is my humble view that the appeal is devoid of merit. It is hereby dismissed. The judgment of the High court of Justice Oyo State, Ibadan Judicial division delivered on the 25th February, 2006 by Akinola J. is affirmed. Costs of N30,000.00 is awarded in favour of the respondents.
MODUPE FASANMI, J.C.A.: I have read in draft the judgment just delivered by my learned brother A. G. MSHELIA J.C.A, and I agree that this appeal has no merit.
For the reasons clearly set out in his judgment, I also dismiss the appeal with the same consequential orders including order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the painstaking judgment prepared by my learned brother, Mshelia, J.C.A., which I had the privilege of reading the draft in advance.
I agree that the appeal is devoid of merit as contained in the lead judgment. I abide by the consequential orders cost inclusive.
Appearances
Olawale SonibareFor Appellant
AND
M. A. Oyafajo with Kemi Okuragbe (Miss)For Respondent
