ADAMU ERINLE & ORS v. ALHAJI BUSARI ALUKO & ORS (2013)

ADAMU ERINLE & ORS v. ALHAJI BUSARI ALUKO & ORS

(2013)LCN/6505(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of November, 2013

CA/I/245/2010

RATIO

DUTY OF COURT: WHETHER AN APPELLATE COURT MAY EVALUATE EVIDENCE ADDUCED BY THE PARTIES

 It is when the trial court fails in its duty to consider and evaluate the totality of the evidence adduced by the parties, that the appellate court has a duty to do what the trial court failed to do, by evaluating such evidence as found in the printed record and to make findings, so long as the findings of fact to be made by the appellate court do not depend on credibility of witnesses. Even where the trial court has evaluated the evidence, but came to a wrong conclusion on the established facts, the appellate court has the vires to interfere. See Ogunleye v. Oni (1990) 2 NWLR (pt.135) p.745; Ejabulor v. Osha (1990) 5 NWLR (pt.148) p.1; Ebolor v. Osayande (1992) NWLR (pt.249) p.524; Anyanwu v. Mbara (1992) NWLR (pt.242) p.386; Fagbenro v. Arobadi (2006) (pt.978) p.172; Onyekwelu v. Elf Petroleum (Nig.) Ltd. (2009) 2 – 3 SC and Oko v. Ntukidem (1993) 2 NWLR (pt.274) p.124. Per HARUNA SIMON TSAMMANI, J.C.A.

FACTS TO BE ESTABLISHED TO SUCCEED IN A CLAIM FOR DECLARATION OF TITLE TO LAND

It is the law that, for a party to succeed in a claim for declaration of title to land, such party must plead and lead credible evidence establishing the following facts:-
(a) Relating to the founding of land in dispute;
(b) The person or persons who founded the land and exercised original acts of possession;
(c) The persons on whom the title in respect of the land was devolved since its first founding, without any break or gap in the claim of devolution to the present owners.
See Piaro v. Tenalo & Ors. (1976) 12 S.C. p.31 at 41; Woluchem v. Gudi (1985) 1 NWLR (pt.4) p.572 at 628; Ezeokonkwo v. Okeke (2002) 11 NWLR (pt.777) p.1; Dike v. Okoloebo (1999) 19 NWLR (pt.623) p.359 at 63 and Emenyonu v. Udoh (2000) 9 NWLR (pt.671) p.251. Per HARUNA SIMON TSAMMANI, J.C.A.

MODES OF PROVING TITLE TO LAND

Being an action for declaration of title to land, plaintiff may proof his case through one or more of the accepted means of establishing title to land. Those tested and established modes of proving title to land are:
(a) By traditional evidence.
(b) By production of documents of title.
(c) By proving acts of ownership, such as selling, leasing, renting out or farming on all or part of the land, extending over sufficient length of time or which are numerous and positive enough as to warrant the inference that the person-is the true owner.
(d) By proving acts of long possession and enjoyment of the land.
(e) By proving possession of connected or adjacent land in circumstances rendering it probable that the claimant is also owner of such adjacent or connected land.
See Idundun v. Okumagba (1976) 9 -10 S.C. pp.246 – 250. See also, Mogaji v. Cadbury Nig. Ltd. (1985) NMLR (pt.7) p.393; Makanjuola v. Balogun (1989) 9 NWLR (pt.108) p.192; Balogun v. Akanji (1988) 1 NWLR (pt.70) p.301; Obineche v. Akusobi (2010) 12 NWLR (pt.1208) p.383; Okonji v. Njokanma (1999) 14 NWLR (pt.638) p.250; Agboola v. U.B.A. Plc. (2011) L.P.E.L.R. p.9353; Orlu v. Gogo – Abite (2010) 8 NWLR (pt.1196) p.307 and Ihekorone v. Hart (2000) 15 NWLR (pt.692) p.840. Per HARUNA SIMON TSAMMANI, J.C.A.

WHETHER IN A CLAIM FOR DECLARATION OF TITLE TO LAND, THE PLAINTIFF MAY SUCCEED ON THE WEAKNESS OF THE DEFENDANT’S CASE

Before Their Lordships

CHIDI NWAOMA UWAJustice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANIJustice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIOJustice of The Court of Appeal of Nigeria

Between

1. ADAMU ERINLE
2. CHIEF NOJEEM ADEOLA DADA
3. CHIEF ISA OGA
4. WASIU OGA
5. JIMOH OGA
6. DAUDA OGA
7. OLU OBANLA
8. LATEEF ERINLE
9. ALABA ERINLE
10 TIJANI OGA
11 TAIRU OJOMU
12. SUSANNA OBANLA (For themselves and on behalf of Idorawa family)Appellant(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court of Justice, Agbara Judicial Division delivered on the 16th day of June, 2010. The matter was begun at the Ota Judicial Division but with the transfer of the trial judge to Agbara Judicial Division, the Chief Judge of Ogun State granted fiat to the Judge to conclude the matter. The matter was accordingly heard and determined at the Agbara Judicial Division of the Ogun State High Court of Justice.
At the trial High court (lower court) the Appellants were the plaintiffs, while the Respondents were the Defendants. As Plaintiffs, the Appellants had instituted this action against the Respondents as defendants seeking for the following reliefs as per paragraph 49 of the Amended Statement of Claim.
(a) A declaration that the Plaintiffs’ family are the persons entitled to a grant of statutory right of occupancy over and in respect of the parcel of land lying, being and situate on Idorawa farmland, Igbesa Ogun State and better described and delineated in Survey No. OG/1176/2008/001 dated 30th April, 2008 and prepared by R.O. Akinyemi, Licensed/Registered Surveyor.
(b) N1,000,000.00 as general damages for the trespass committed by the defendants on the Idorawa family land outside the land granted to them as customary tenants.
(c) An order of forfeiture against the defendants in respect of the land granted to them as customary tenants by the plaintiffs’ family.
(d) Possession of the portion verged blue on the survey plan No. OG/1176/2008/001 dated 30th April, 2008 and prepared by R.O. Akinyemi, Licenced/Registered Surveyor granted to the defendants as customary tenants.
(e) Perpetual injunction restraining the defendants either by themselves, their agents, workmen, privies or howsoever described from selling, leasing, alienating tampering with or going unto the Plaintiff’s land.
(f) Cost of this action.
Concisely, the claim of the Appellants is that the land in dispute devolved to them through their ancestor, one Adagunja. That the said Adagunja migrated from Ile-Ife to found and settle on the land in dispute. According to the Appellants, the Respondents are not part of the Idorawa family, but strangers who were granted the land by the Appellants as customary tenants. That the Respondents exceeded the boundaries of the land granted them as customary tenants and have also started selling parts of the land granted them without the consent or authority of the Appellants.
On their part, the Respondents claim that it was their ancestor Ido-Arawa, whom they also claimed migrated from Ile-Ife that founded and first settled on the land in dispute. They accordingly, also traced their ancestry to the said Ido-Arawa and therefore claimed to be the authentic Idorawa family. They also insisted that the Appellants are their customary tenants.
At the trial, the Appellants who were plaintiffs called nine (9) witnesses and tendered a Survey Plan of the land in dispute and some other Exhibits which they relied upon in prove of their case. The Respondents as Defendants called seven (7) witnesses and tendered some exhibits, also in support of their case. At the close of evidence and addresses of counsel, the learned trial judge dismissed the Appellants’ case entirely. The Appellants are aggrieved by the said judgment and have appealed to this Court.
The Notice of Appeal was dated the 12th day of July, 2010 and filed 13/07/2010. It consisted of nine (9) Grounds of Appeal as contained at pages 294 – 303A of the Record of Appeal. The said Grounds of Appeal without their particulars are hereby reproduced, and they are as follows:-
1. The Learned Trial Judge erred in law in failing to appraise and evaluate the traditional history led by the parties before resorting to the application of the rule in KOJO II v. BONSIE and this error led to miscarriage of justice against the Appellants.
2. The Learned Trial Judge erred in law when he stated thus: “Application of the principle in KOJO v. BONSIE (supra) in this case is definitely as a result of the unsatisfactory traditional evidence adduced by the claimants” when in actual fact the evidence of traditional history relied upon and adduced by the Appellants was never appraised or evaluated to determine whether it was satisfactory or not.
3. The Learned Trial Judge erred in law in relying on the evidence presented by Respondents when the evidence was dilatory, not probable and at variance with their pleading.
4. The Learned Trial Judge erred in law in relying on the judgment of the Oba-in-Council of Igbesa, Exhibit ‘E’, to hold that the Respondents were the owners of the land in dispute when the said exhibit was neither admissible in law nor relevant to the issue of ownership of the land in dispute.
5. The Learned Trial Judge misdirected himself when he held thus: “However at the trial the claimants did not call any evidence to show when the customary tenancy was granted to the family of the defendants and what the terms and conditions of the customary tenancy were as the law enjoins them to do”, when indeed these were satisfactorily done in the pleading and evidence led by the Appellants.
6. The Learned Trial Judge erred in law when he held that the Appellants failed to prove sufficient acts of ownership in recent years to show their claim of title when indeed there was abundant evidence of these on record but the lower court chose to ignore them.
7. The Learned Trial Judge erred in law in failing to pronounce and/or make findings on vital facts upon which issues were joined particularly with respect to the claim of the Appellants that the Respondents were not authentic members of Idorawa and ought not to have been allowed to defend the case in the name of the said family.
8. The Learned Trial Judge erred in law when he failed to consider the evidence of boundary men called as witnesses by the Appellants but chose to consider the evidence of DW3 and DW5, the purported tenants, called as witnesses by the Respondents.
9. The judgment is against the weight of evidence.
In obedience to the Rules of this Court, the parties filed and exchanged briefs of arguments. The Appellants’ Brief of Arguments was dated the 20/1/2011 and filed the 24/1/2011, but deemed as properly filed on the 12/4/2011. Therein, the Appellants nominated five (5) issues for determination as follows:
1. Whether the trial court was right in relying on evidence that was dilatory and inadmissible to find in favour of the respondents? (Distilled from grounds 3 and 4)
2. Whether the learned trial judge was right in failing to appraise, review, analyze and evaluate the traditional history led by the parties and yet came to conclusion that the traditional evidence of the claimants was unsatisfactory? (Distilled from grounds 1 and 2)
3. Whether the trial judge was right when he held that the appellants failed to call any evidence to show that respondents were their customary tenants? (Distilled from. ground 5).
4. Whether by the totality of evidence adduced by the appellants at the trial court, sufficient acts of ownership were not established to entitle them to the reliefs sought? :
5. Whether the trial court was right in failing to make a finding on the issue that the respondents were not authentic members of the family and could not have defended in a representative capacity for and on behalf of that family? (Distilled from grounds 7, 8 and 9).
The Respondents argued this appeal through an amended Respondents Brief of Arguments dated the 30/1/2012 and filed the same date, pursuant to an order of this Court made the 26/1/2012. Therein, the Respondents adopted all the five (5) issues nominated by the, Appellants, but were of the opinion that, save for issues 3 and 4, the other issues should be re-couched so as to scale down the accusatory tone of those issues. Consequently, the Appellants projected the following issues for determination:
1. Whether or not the evidence relied upon by the learned trial judge were legally admissible evidence and positive enough to secure a finding in favour of the respondents (Grounds 3 and 4).
2. Whether from the facts and circumstances of this case/ it could be said that the learned trial judge failed to evaluate the traditional history led by the parties in this case and if so, is the proceedings declared null and void? (Grounds 1 and 2).
3. Whether the trial judge was right when he held that the appellants failed to call any evidence to show that the respondents were their customary tenants (Ground 5).
4. Whether by the totality of evidence adduced by the appellants at the trial court, sufficient acts of ownership were established to entitle them to the relief sought (Ground 6).
5. Whether the evidence led in this case show, and whether the learned trial judge made a finding on who, between the appellants and the respondents is the authentic Idorawa family. (Ground 7).
A careful reading of the issues nominated by the parties would reveal clearly that the Issues are the same in substance and ambit. Indeed that is so, in view of the Respondents adoption of the issues formulated by the Appellants. That being so, I shall adopt the issues nominated by the appellants in the determination of this appeal. Upon a deep reflection of the issues raised by the parties, I am of the view that, issue five (5) should be resolved first. I thus begin the determination of the appeal with issue five (5). I only wish to point out that in response to the Respondents’ Brief of Arguments, the Appellants filed a Reply Brief dated the 20/9/2012 and filed the same date. It was deemed filed the 10/10/2012, vide motion on notice dated the 20/9/2011 and filed same day.
Now, arguing issue five (5), learned counsel for the Appellants contended that the Appellants instituted this action in a representative capacity, for themselves and on behalf of the Idorawa family as pleaded in paragraph 2 of the Amended Statement of Claim; and as testified to by the PW4. That, while responding to the Appellants’ claims, the Respondents also claimed to be defending the action as representatives of the Idorawa family, as pleaded in paragraph 2 of the 2nd Amended Statement of Defence filed on the 13/8/2009. That, by the state of the pleadings of the parties, both have joined issue as to which side is the authentic or bona fide Idorawa family, and that in law, the trial court was bound to resolve the issue one way or the other. The cases of Egwunewu v. Ejeagwu (2006) All FWLR (Pt.324) p.1893 at 1909 and Akole v. Alonge (2009) All FWLR (Pt.468) p.295 at 336 para A – B were cited in support.
Learned Counsel for the Appellants thus contended that, the Respondents could not have defended this case at the lower court in a representative capacity without the leave of court so to do, because the law requires a defendant who intends to defend an action in a representative capacity to first seek and obtain leave of court before doing so. That in the instant case, the Respondents failed to seek the leave of the lower court and that none was granted them to defend this action in a representative capacity. The cases of Adegbite v. Lawal (1949) 12 WACA P.398 and Ubagu v. Okachi (1964) All NLR P.36 were cited to submit that the court below failed to consider this fact in the determination of their action.
Mr Odunbaku of learned counsel for the Respondents first of all conceded that issue was joined as to which party, as between the Appellants and the Respondents are the authentic and bona fide members of Idorawa family. He however contended that learned counsel for the Appellants is misconceived in concluding that the learned trial judge failed to resolve the issue that the issue has been proved by the pieces of evidence led in the case and which pieces of evidence the learned trial judge adverted his mind to. That the learned trial judge relied on the judgment of the Oba-in-Council (Exhibit E) in resolving the issue, as to who, between the Appellants’ family and that of the Respondents is the authentic Idorawa family, and is the customary tenant of the other. Learned Respondents’ Counsel thus submitted that, based on the findings of the learned trial judge, it is misconceived to contend, as done by the Appellants, that’ the issue was not resolved by the trial court. Furthermore, that evidence was adduced showing that the 3rd Respondent was installed the traditional Head of Idorawa village, and which fact was admitted by the Appellants.
Learned Counsel for the Respondents contended that, the argument of the Appellants that, the Respondents could not defend this case at the court below in a representative capacity with the leave of court so to do, is misconceived, as it is against the present position of the law. He then cited the case of Busari v. Oseni (1992) 4 NWLR (Pt. 237) p.557 at 582 – 585 per Tobi, JCA (as he then was), to submit that the rules of court requiring leave to defend in a representative capacity, are not mandatory but permissive. That, it does not foist on a party a legal duty which must be performed or which, if not performed, is at the pain of punishment. That by the Supreme Court decision in Otapo v. Sunmonu (1987) NWLR (Pt. 58) p.587 at 600, failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action.
A careful consideration of the issue would reveal that though the Appellants raised the issue of failure of the trial court to make a finding on the issue that the respondents are not authentic members of the Idorawa family, the Appellants arguments on the issue centers on the failure of the Respondents to seek for and obtain leave of the trial court before defending the action in a representative capacity. In the resolution of this issue therefore, I shall confine myself to the issue as canvassed by the Appellants. In that respect, my resolution of the issue would be confined to a determination of whether the failure of the Respondents to seek and obtain leave of the trial court before defending the action in a representative capacity is fatal to their defence. To determine that, I shall begin by looking at the Statement of Claim and Statement of Defence filed by the parties.
The Appellants’ (Plaintiffs) case was canvassed upon their Amended Statement of Claim dated the 05/01/2005 and filed the 19/06/2006. See pages 153 – 156 of the record of appeal. On its face, it does not purport to be suing the Respondents (Defendants) in a representative capacity. However, by their 2nd Amended Statement of defence dated the 02/7/2009 and filed 13/8/2009, the Respondents indicated that they are defending the action in a representative capacity. They maintained that position in all other processes they filed in the action. The record of appeal, however does not show that the Respondents either sought for nor obtained the leave of the trial court to defend in a representative capacity.

By Order 13 Rule 12(2) of the Ogun State High Court (Civil Procedure) Rules, 2008, where there are numerous persons having the same interest in one suit and they seek to defend the action, a judge may allow one or more of such persons to defend the action on behalf or for the benefit of all persons so interested. Thus, in the case of Ndulue v. Ibezim (2002) 5, S.C. (Pt. 11) P.124, the Supreme Court held that, under the Rules of Court, while approval of the court is required for a party to sue or defend a suit in a representative capacity, the authority to sue or defend in such a representative capacity is to be given by the order persons interested to sue or defend. In the instant case, the Appellants do not contend that the Respondents had no authority to defend the action in a representative capacity. Their grouse is that the Respondents did not seek for nor secure the leave of the trial court to defend in that capacity.

It is now the law that, even if an order for leave is not specifically sought and obtained, it will be presumed that leave to either sue or defend in that capacity was given if the title and the statement of claim or defence reflects that capacity and the suit was prosecuted in that capacity and judgment was given for or against the plaintiff or defendant in that capacity.

Thus, if the pleadings and evidence show conclusively a representative capacity and the case was fought or ventilated throughout in that capacity, the trial court can justifiably enter judgment in that capacity, even if no amendment was made at the trial to reflect that capacity. See Mba Nta v. Anigbo (1972) S.C. P.156 at 174 – 175; Ayeni v. Sowemimo (1982) 5 S.C. P.60; Otapo v. Sunmonu (1987) 5.C. P.228; Alhaja Rafatu Ayorinde & Ors. v. Alhaja Airat Oni & Anor. (2000) 2 S.C.N.J. P.1 and Offia v. Ejem (2006) 11 NWLR (Pt.992) P.652.

In other words, once the pleadings and evidence establish conclusively a representative capacity and the case has been fought throughout in that capacity, the trial court will be entitled to enter judgment for or against either party in that capacity. It does not matter that no amendment to reflect that capacity had been applied for and obtained. Accordingly, failure to obtain leave of court to defend in a representative capacity would not vitiate the validity of the action. See also Salisu v. Odumade (2010) 6 NWLR (pt. 1190) p.228; Mba Orie & Anor. v. Okpan Uba & Anor. (1976) 9-10 S.C. p. 123 at 133; Ahadu v. Daniel (2005) 2 NWLR (pt. 909) p.199 and Ifekire v. Madu (2000) 14 NWLR (pt. 688) p. 545.

In the instant case, a careful reading of both the Appellants’ Statement of Claim and Respondents ‘Statement of Defence, would show clearly that the action was instituted against the Respondents, not in their individual capacity, but as representatives of their family. The originating processes initially filed by the Appellants is clear testimony to that fact. Paragraphs 3, 5, 7, 11, 47 and the entire reliefs sought by the Appellants at paragraph 49 of the Amended Statement of Claim also support an action against the Respondents, not as individuals but as a family. See also paragraphs 2, 3, 4, 5, 16, 17, 20 and 25 of the Reply of the Appellant to the Respondents’ 2nd Amended Statement of Defence and paragraphs 2, 3, 5 -20, 22, 23, 24, 27, 28, 29, 30, 32 and 33 of the Respondents’ 2nd Amended Statement of Defence. Furthermore, the entire evidence as led by the witnesses for both parties show clearly and unambiguously that this action was ventilated or fought in a representative capacity by both parties. It is therefore my view that the learned trial judge was right when he determined the Respondents’ case in their representative capacity.

I wish to also point out that, a party intending to challenge the propriety of a representative capacity of his opponent is required to do so before the trial court or court of first instance by way of motion on notice. The trial court would then take the motion and proceed to determine the competence or otherwise of the representative capacity of the party being challenged. See Melifonwu & Ors v. Egbujia & Ors (1982) N.S.C.C. p. 341. That was not the situation in the instant case. In that regard, I am entitled to presume that such leave was granted the Respondents to defend the action in a representative capacity. Thus, I resolve this issue in favour of the Respondents.

Arguing issue one (1), learned counsel for the Appellants contended that, the Respondents by their pleading failed to connect their case and interest to the land in dispute, and that the trial court was in grave error to have found in their favour. He referred to paragraph 5 of the Amended Statement of claim to further contend that, the land in dispute is called and known as Idorawa family land and not Igbesa land. That the trial court failed to consider this point, (which he considers as fundamental), but still found in favour of the Respondents. It was also contended that the Respondents did not give evidence to support paragraph 5 of the Amended Statement of defence. The cases of Abubakar v. Joseph (2008) All FWLR (pt. 432) p.1065 at 1085; Ossai v. Wakwah (2006) All FWLR (pt. 203) at 257 were cited in support.

Learned Appellants’ Counsel also referred to paragraph 3 of the Amended Statement of defence, to contend that, DW1 adduced evidence in support of the genealogy of the Respondents. That while he proved the genealogy of Oduadebu and Imosu branches, he failed to link the Fagbenro branch to their genealogy as pleaded. The cases of Nwokorobia v. Nwogu (2009) All FWLR (pt.476) p.1868 at 1885; Awodu v. Ajagbe (2009) All FWLR (pt.454) p.1413 at 1439; Okoko v. Dakolo (2006) All FWLR (pt. 366) p.201 at 219 and Akanbi v. Salawu (2003) FWLR (pt.178) p.1066 at 1074 were cited to submit that the Respondents failed to prove their traditional history as pleaded, yet the trial court found in their favour to the detriment of the Appellants.

Learned Counsel for the Appellants went on to submit that, the trial court had a duty to find out which of the traditional histories presented by the parties was more probable by testing same against other evidence in the case. That this was not done in the instant case. The case of Obioha v. Duru (1994) 10 SCNJ p.48 at 58 was cited in support. Learned Counsel further submitted that the position taken by the trial court at page 287 lines 5 – 15 of the record of appeal is contrary to the position taken by the Supreme Court in the cases of Are v. Ipaye (1990) 3 S.C. (pt.11) p.109 at 123 and Eboade v. Atomesin (1997) 5 SCNJ p. 13. That the rule relating to traditional history as stated in Kojo v. Bonsie (supra) will only apply where the two parties pleaded traditional histories and led evidence therein in accordance with their pleadings at the trial. We were then urged to resolve this issue in favour of the Appellants, as the record of appeal reveals that the Respondents failed to give evidence in line with their pleadings.

Learned Counsel for the Respondents submitted that, the identity of the land in dispute was not in issue at the trial and that the learned trial judge had found at page 260 lines 3-4 of the record that, from the pleadings and evidence, both parties are ad-idem concerning the identity of the land in dispute. Furthermore, that the parties had filed plans of the disputed land, where the DW7 gave evidence to the effect that the two plans filed by the parties were in pari-materia. That it is trite law that, the description or naming of the land by different names does not necessarily raise the issue of identity of the land where there are other evidence to establish that identity. He relied on the case of Mbamaenyi v. Abosi (1995) 7 NWLR (pt.405) p. 54 at 65, to also submit that, the plans filed by the parties have laid to rest the issue of the identity of whether the land is Igbesa land or Idorawa land. That paragraphs 9 and 10 of the Amended Statement of Claim refer to the land in dispute as Igbesa land and that PW1 (Adam Erinle) who is the 1st Appellant also stated at pages 210 – 211 of the record that the land is at Igbesa.

It was further contended by learned counsel for the Respondents that, the Appellants’ contention that the Respondents’ genealogy is inconclusive because the Respondents failed to link Fagbenro to their genealogy as pleaded, is misconceived and not borne out by the record. That DW1 stated at page 242 of the record that Fagbenro’s children are Aganfu and Iya Damilepa.

It is also the submission of the Respondents’ that the trial court was right in applying the principle in Kojo v. Bonsie. That the records abound with such evidence for the application of that principle, and that what the learned trial judge did was to test the traditional history against such other evidence established in the case. That against the background of the conflicting traditional histories recited by the parties, in which each party claims that (a) their progenitor founded the land in dispute (b) they are the authentic Idorawa family and (c) the other party is their customary tenant, the trial court properly applied the rule in Kojo v. Bonsie. Reference was then made to the observations and findings of the learned trial judge at pages 261 lines 10-32 and 262 lines 1 – 7 of the records in that regard.

Learned Counsel for the Respondents further relied on the cases of Obinechie & Ors v Akusobi & 6 Ors (2010) 4-7 S.C. (pt. 11) p. 178 at 205; Fashanu v. Adekoya (1974) 6 S.C. p. 83 and Laisi Ogbe v. Sule Asade (2009) 12 S.C. (pt.111) p.37, to submit that even though the account of traditional history given by the parties as to who amongst them is the authentic Idorawa family, and as between the two of them who is the customary tenant of the other conflict, the other pieces of evidence led in the case tilted the scale in favour of the Respondents, and that the learned trial judge was right when he held that on the preponderance of evidence led, the traditional history of the respondents is more probable.

Upon a reconsideration of the issues raised in this appeal, I am of the view that the second issue can be adequately resolved with the first issue summarised above. In that respect, I shall consider them together. Arguing issue two therefore, learned counsel for the Appellant submitted that, the trial court is burdened by law to evaluate, review, analyse and appraise the evidence of the Appellants and their witnesses before coming to a conclusion therein. That the trial court, in this case, failed to carry out its duty of evaluation and review of the evidence placed before it by the Appellants and their witnesses, yet came to a conclusion prejudicial to the Appellants. Relying on the cases of Jekpe v. Alokwe (2001) All FWLR (Pt.47) p.1013 at 1024 paragraphs B – C; Alibo v. Okusin (2010) All FWLR (pt.529) p.1059 at 1080-1081 paras H-D, learned counsel contended that, the learned trial judge was bound to have regard to:-

(a) Whether the evidence is admissible
(b) Whether it is relevant
(c) Whether it is credible;
(d) Whether it is conclusive and
(e) Whether it is more credible than that given by the other party.

That after considering these facts, the trial court will then invoke the relevant law that is applicable to the case before coming to a final conclusion based on the evidence which has been accepted and evaluated. The case of Okoye v. Obaso (2010) All FWLR (pt. 526) p.489 at 499 paras C-D was also cited in support.
It was therefore submitted by learned counsel for the Appellants that, in presenting their cases, the Appellants called nine (9) witnesses while the Respondents called seven (7) witnesses. That none of the Appellants’ witnesses testimony was reviewed, appraised or evaluated by the trial court before coming to a conclusion, which occasioned a miscarriage of justice to the Appellants. The cases of N.P.C.G.E. Ltd. v. Roche (Nig.) Ltd. (2006) All FWLR (pt.322) p.1542 at 1552 paragraphs D-E and A.N.P.P. v. Na’Allah (2009) All FWLR (pt.492) p. 1191 at 1212 paragraphs E – F were then cited, to invite us to hold that the trial court has failed to review, evaluate and appraise the evidence of the Appellants and their witnesses.

Learned Counsel for Respondents contended that, from the circumstances of this case, it is not correct to submit, as done by the Appellants, that the trial court failed to evaluate and review the evidence placed before it by the Appellants and their witnesses, and that such contention cannot be substantiated from the records. That the learned trial judge was alive to his duty by reviewing, appraising and evaluating the evidence. He cited the cases of Oyadidi v. Olaniyi (2005) NWLR (pt.919) p.561 and Auta v. Olanivi (2004) 4 NWLR (pt.863) p.395 at 417, to submit that the learned trial judge was not bound to review, appraise and evaluate the evidence led, witness by witness. That it was sufficient that the learned trial judge summarized the basic or essential points of the testimony of those witnesses. It was further submitted that, in the instant case, the learned trial judge proceeded to analyze and appraise the evidence given by the parties, as done at pages 259-260 of the records, after stating the reliefs sought by the Appellants and considering the issues formulated by counsel to the parties in their final written addresses. That the portion of the judgment quoted at pages 259 – 260, reveal a concise summary and review of the account of the traditional histories given by the two parties.

It was further submitted by learned counsel for the Respondents that, the learned trial judge equally assessed and evaluated, at pages 260 – 261 of the record, other evidence led in the case, and came to the conclusion that the scale of justice weighs or tilts heavily against the Appellants and in favour of the Respondents, upon a preponderance of evidence. The case of Odofin v. Mogaji & Ors (1978) 4 5.C. p.53 at 65 was cited in support. That assuming, which counsel does not concede, that there was no such evaluation of the evidence led in this case, counsel submitted that, this Court is in a position to evaluate same. That it is on the Appellant who alleges non-evaluation of the evidence, to satisfy the court that, if the error is corrected, the conclusion would be different. He cited the case of Alfa Saibu Alao v. Memudu Kure & Ors. (2000) FWLR (pt.6) p.889 at 906 in support.

Responding in the Appellants’ reply brief of arguments, learned counsel for the Appellants submitted that the Respondents’ contention that they have successfully linked Fagbenro branch to their genealogy as evidenced by the testimony of DW1 at page 242 of the record cannot be sustained. That a cursory look at the records will show that after stating; that Fagbenro’s children are Iya Damilepa and Aganfu, DW1 also stated that Ilo was the father of Fagbenro. That this piece of evidence was overlooked by the trial court, and that it conflicts with paragraphs 3, 4, 5 and 6 of the 2nd Amended Statement of Defence where Fagbenro is clearly pleaded as being one of the three children of Ido-Arawa along with Oduadebe and Imosu. He relied on the case of Ossai v. Wakurah (2006) All FWLR (pt.303) at p.239 to submit that, if the trial court had properly considered and evaluated this aspect of the Respondent’s evidence in relation to the pleadings, it would have seen the manifest conflict which would then render the evidence unreliable, and thus prove fatal to the Respondents’ version of the traditional history led. That in that situation, there would have been no need for the court to proceed to invoke the principle in Kojo II v. Bonsie (supra).

Learned Appellants ‘counsel further relied on the case of Eboade v. Atomesin (1997) 6 S.C.N.J. p.13 to submit that in the circumstances, the issue the court ought to have considered is not whether there was a conflict in the traditional histories given by both parties, but whether, the history given by the Respondents is credible at all, given the discrepancy between their pleadings and evidence led thereon.

Now, generally in law, the burden of proof rests on the party who desires the court to give judgment in a matter in his favour. In other words, the burden of proof in a cause or proceeding lies on the person who alleges the existence of a fact. This is in consonance with Sections 131 and 132 of the Evidence Act, 2011 which provide as follows:
“131 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that Person who would fail if no evidence at all were given on either side.”
The above stated provisions of the Evidence Act have put in statutory form, the general burden of proof required of person who desires a court to give judgment in his favour. In other words the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side. Thus, it is now settled law that, in civil cases the party who is claiming a relief against his opponent has the onus to prove what he asserts, because, unless he is able to adduce cogent and credible evidence to discharge that burden of proof cast on him by law, he is bound to fail in his claim. In civil cases, the burden of proof cast on a plaintiff or claimant is settled by Section 133(1) of the Evidence Act, 2011 which stipulates that:-
“133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”
Since it is the plaintiff who seeks a relief or judgment from the court, he is definitely the party who would fail, if no evidence at all were produced or adduced by either party in the matter. He will equally fail if the evidence adduced by him is not credible or lacks evidential or probative value, even where the defendant calls no evidence at all. See A.G; Bayelsa State v. A.G; Rivers State (2006) 18 NWLR (Pt.1012) p.596; Famfa Oil Ltd. v. A.G. Federation (2003) 18 NWLR (Pt.852) p.453; Onwuchekwa v. Ezogu (2002) 9 – 10 S.C. p.114 and VeePee Industries Ltd. v. Cocoa Industries Ltd.(2008) NWLR (Pt.1105) p.486. See also Ishola v. U.B.N. Ltd (2005) 6 NWLR (pt.922) p.422.

In the instant case the main claim of the Appellants before the court below, and which is now on appeal before this court, is for declaration of title to that parcel of land lying, being and situate on Idorawa farmland, Igbesa, Ogun State and better described and delineated in Survey Plan No. OG/1176/2008/001 and dated 30th April, 2008. Based on the stated position of the law, the Appellants had the legal burden to adduce concrete, cogent and credible evidence to show that they are entitled to the declaration of title sought.

The law is that, in a claim for declaration of title to land, the onus is on the plaintiff to proof that he is entitled to the declaration sought by ‘calling credible evidence to that effect. Being a declaratory relief, the plaintiff must succeed on the strength of his own case and not on the weakness of the case presented by the defendant, except where the weakness in the defendant’s case supports the plaintiff’s case. In other words, the law requires that in a claim for declaration of title to land premised, as in the instant case, on traditional history for a plaintiff to succeed, he must adduce credible, cogent and un-contradicted evidence in support of his case. See Aikhionbare v. Omoregie (1976) 12 S.C. p.11, Chukwueke v. Uwankwo (1974) 12 S.C. p.195, Onyejekwe v. Atuanya (1975) 3 S.C. p.115, Sapo v. Sunmonu (2010) 11 NWLR (pt.1205) p.374 and Kodilinye v. Odu (1935) 2 W.A.C.A.P.336. See also Ashiru v. Olukoya (2006) 11 NWLR (pt.990) p.1; Nwabuoku v. Onwordi (2006) 5 S.C. (pt.III) p.103; Erema v. Akenzua (2000) 13 NWLR (pt.683) p.92 and Dada v. Dosumu (2006) 18 NWLR (pt.1010) p.134.
To further buttress and elucidate the law, the Supreme Court held in the case of Kaiyaoja & Ors. v. Egunla (1974) 12 S.C. p.49 that, in an action for declaration of title to land, the onus is always on the plaintiff to establish his claim, and that it is not open for a plaintiff to rely on the weakness of the defendant’s case, unless such weakness of the defence’s case supports his case, in which case, he can take advantage of it. That it will however be enough, if the plaintiff is able to produce sufficient and satisfactory evidence, which upon a balance of probabilities supports his claim. That as stated in Awo v. Cookey Gam 2 N.L.R. p.100, the standard of proof required of a plaintiff in a claim for declaration of title is not different from that required of a plaintiff in civil cases generally, the only difference being that, in an action for declaration of title to land, the burden of proof rests on the plaintiff who claims title, and that the burden never shifts to the defendant throughout the trial, unless in my view, where such a defendant has made a counter-claim.

This burden cast on a plaintiff in an action for declaration of title to land is even heavier where issues have been joined on every material point of the plaintiff’s claim. Furthermore, even where the defendant fails to call evidence, or even made some admissions, being a declaratory relief the onus remains strictly on the plaintiff, as the law requires him to succeed on the strength of his own case and not on the weakness of the defence. See Okafor v. Idigbo (1984) 1 S.C. p.481; Fabunmi v. Agbe (1985) 1 NWLR (pt.2) p.299 at 318; Kwajaffa v. Bank of the North Ltd. (2004) 13 NWLR (pt.889) p.146 at 172; and Ndayako v. Dantoro (2004) 13 NWLR (pt.889) p.187 at 214.

In the instant case, the Appellants chose to prove their title to the land by way of traditional history. Incidentally, the Respondents chose to base their defence on traditional history as well. It is the law that, for a party to succeed in a claim for declaration of title to land, such party must plead and lead credible evidence establishing the following facts:-
(a) Relating to the founding of land in dispute;
(b) The person or persons who founded the land and exercised original acts of possession;
(c) The persons on whom the title in respect of the land was devolved since its first founding, without any break or gap in the claim of devolution to the present owners.
See Piaro v. Tenalo & Ors. (1976) 12 S.C. p.31 at 41; Woluchem v. Gudi (1985) 1 NWLR (pt.4) p.572 at 628; Ezeokonkwo v. Okeke (2002) 11 NWLR (pt.777) p.1; Dike v. Okoloebo (1999) 19 NWLR (pt.623) p.359 at 63 and Emenyonu v. Udoh (2000) 9 NWLR (pt.671) p.251.

The above stated ingredients are the facts the trial court will consider in order to determine whether the plaintiff has successfully proved his title to the land he claims through traditional history. In the appraisal and evaluation of the evidence led in the case, the trial court should bear in mind that, where both sides to the dispute claim ownership to the land based on traditional or ancestral history, it is the party that advances better evidence of traditional history or ownership that will be entitled to the judgment of the court. See Osu v. Igiri (1988) 1 NWLR (pt.69) p.221. It therefore means that before arriving at a decision one way or the other, the trial court has a bounden duty to evaluate the evidence led by both sides to the dispute. The fact that the burden of proof rests in the plaintiff does not discharge the trial judge from his duty to consider the evidence of both the plaintiff and defendant and ascribe probative value or weight to each of them. The burden of proof cast on the plaintiff only means that, the plaintiff should lead evidence which is more credible than that of the defendant. In other words, after weighing the evidence by the trial judge, the plaintiff should only succeed because the evidence led by him, tilts the balance of the imaginary scale in his favour. The plaintiff should therefore not succeed because the defence has offered weak evidence, though in considering the weight of evidence in favour of the plaintiff, the trial court should take into account those weaknesses in the defence’s case which strengthens or tends to strengthen the plaintiff’s case. See Akinola & Anor v. Oluwo & Ors. (1962) All N.L.R. p.224 at 227 and Woluchem v. Gudi (1981) 5 S.C. p.291.
What I have laboured to state is that, the trial court has the primary duty to properly evaluate or appraise the evidence led by the claimant before reaching a conclusion one way or the other in respect of the claim. Even where the defendant has not proffered evidence, the trial court still has that duty to evaluate the evidence adduced by the plaintiff. In the evaluation of the evidence, the trial court has to satisfy himself that the evidence adduced by the plaintiff is credible enough to warrant the declaration sought. It is therefore the primary duty of the trial court to make findings of fact and to ascribe probative value to such facts adduced before him. Indeed, that duty is preserved for the trial judge who had the advantage of watching and assessing the demeanour of the witnesses that testified before him. See Kimdey v. Military Governor; Gongola State (1988) NWLR (pt.77) p.445; Registered – Trustees of Apostolic Faith Mission v. James (1987) NWLR (pt.61) p.556; Teriba v. Adeyemo (2010) 13 NWLR (pt.1211) p.242; Layinka v. Maklnde (2002) 10 NWLR (pt.775) p.358 and Ita v. Ekpenyong (2001) 1 NWLR (pt.695) p.587

Based on the state of the law as stated above therefore, where both sides to a dispute claim ownership of land and both base their claim through traditional or ancestral history or ownership the party that adduces better evidence will be entitled to the judgment of the court. See Osu v. Igiri (1988) 1 NWLR (pt.69) p.221. To determine which version of traditional history to believe and prefer, the trial court has the duty to determine from the evidence adduced before him by the process of appraisal and evaluation of the evidence and application of the law to the evidence so adduced. See Onwubuariri v. Igboasoiyi (2011) 3 NWLR (pt.1243) p.357. However where the trial court finds itself in a dilemma or difficulty as to which version of the traditional histories to believe or accept, the court is enjoined to follow and apply the principle enunciated in the case of Kojo v Bonsie (1957) 1 W.L.R. p.1223.

The rule of Kojo II v. Bonsie (supra) postulates that where, in the determination of a declaration of title to land, as in the instant case based no traditional history, the evidence of traditional history relied upon by both parties is conflicting, in the sense that it is not clear to the trial court as to which version to believe, the trial court should make reference to evidence of acts of recent possession and ownership to determine the version that is more probable. Specifically, the Privy Council held that it is only where there is conflict in the evidence of traditional history led by the parties that the principle will apply. Accordingly, where the trial court is able to make a preference between the traditional histories, the rule will not apply, as judgment would go to the party that has proffered better evidence. This legal proposition has been accepted and applied by the Supreme Court in a plethora of cases. See Popoola v. Adeyemo (1992) NWLR (pt.257) p.1; Sanusi v. Ameyogun (1992) NWLR (pt.237) p.527; Raimi Ajao Ojokolobo & Anor v. Lapade Alamu & Anor (1998) 7 S.C. (pt.1) p.38; Sanusi v. Adebiyi (1997) 11 NWLR (pt.530) p.565; Obasi v. Onwuka (1987) NWLR (pt.61) p.364; Okochi v. Animkwoi (2003) 18 NWLR (pt.851) p.1; Cosmos Ezukwu v. Ukachukwu (2004) 7 S.C.N.J. p.189 and Iheanacho v. Chigere (2004) 17 NWLR (pt.901) p.130.

Now, the complaint of the Appellants in the two issues under consideration is that, the learned trial judge failed to evaluate the traditional evidence led by them, but relied on inadmissible evidence to apply the principle or rule established in Kojo II v. Bonsie (supra) to find that the traditional history led by the Appellant was unsatisfactory. In the resolution of these issues, I should remind myself again that, the primary duty to appraise and evaluate the evidence rests squarely on the trial court. It is only where it is found from the contents of the printed record that the trial court failed in its duty to properly evaluate the evidence on record or erroneously evaluates the evidence or reaches a conclusion which is not supported by the evidence on record, that this court will exercise its power to do justice, by reviewing the facts on record and draw influences thereon. It should also be borne in mind that, there is a presumption of correctness in favour of the findings of the trial court. Consequently, the onus is on the party who complains that the trial court did not evaluate or improperly evaluated the evidence to show how the judgment would be found to be wrong if the error, omission or failure to evaluate properly or at all, is corrected. The burden of rebutting that presumption of correctness therefore lies with the Appellant. See Mufutau Bakare v. The State (1987) 3 S.C. p.1.

In the instant case, the Appellant contended first of all that, the learned trial judge failed to consider that the Respondents did not connect their case and interest to the land in dispute. That the evidence led by the Respondents on the identity of the land do not relate to their pleading at paragraph 5 of the 2nd Amended Statement of Defence. The Respondents on the other hand contend that the identity of the land was never in dispute, considering the pleadings of the parties and evidence adduced at the trial.
In the determination of the issue of identity of the land in dispute, the learned trial judge held that:
“There is no doubt from the pleadings and evidence that both parties are ‘ad idem’ concerning the identity of the land in dispute.”

The learned trial judge did not however refer to any aspect of the pleadings and evidence of the parties which led him to conclude that the parties were ad idem as to the identity of the land in dispute. No doubt the learned trial judge had a duty to demonstrate in the judgment how he came to that conclusion by a process of appraisal and evaluation of the pleadings and evidence led by the parties as to the identity of the land in dispute. This is in view of the legal position that, in a claim for a declaration of title to land, the first thing to be ascertained is the identity of the land in dispute. In other words, the trial court must satisfy itself that the claimant has sufficiently pleaded and led evidence showing with certainty the identity of the land in dispute. It must also be established that the contest between the parties is on the same land claimed by the plaintiff. Thus, where the pleadings and evidence show that the parties are agreed on the identity of the land in dispute, no dispute arises on it. The fact that the parties refer to the same land with different names will not derogate from the identity of the land in dispute. It is sufficient that both parties’ pleadings and evidence refer to the same land. See Olusanmi v. Oshasona (1992) NWLR (pt.245) p.22; Aremu v. Adetoro (2007) 16 NWLR (pt.1060) p.244; Nwabuuoku v. Onwordi (2006) 5 S.C. (pt.III) p.103; Ogedengbe v. Balogun (2007) 9 NWLR (pt.1039) p.380; Adente v. Olude (2002) 9 – 10 S.C. p.124; Ademba v. Odiese (1990) NWLR (pt.125) p.165; Makanjuola v. Balogun (1989) NWLR (pt.108) p.192 and Fatuade v. Onwoamanam (1990) NWLR (pt.132) p.322.

Upon a sober consideration of the evidence led in this case, I am inclined to agree with learned counsel for the Respondent that, front the pleadings and evidence led in this case, the learned trial judge was right when he held that the parties were ad idem concerning the identity of the land in dispute. The Appellants pleaded at paragraph 4 of the Amended Statement of Claim (page 153 of the record) that:-

“The plaintiffs aver that the land in dispute lying, being and situate at Idorawa farmland, off Agbara Road, Igbesa, Ogun State.”

The 1st Appellant (Adam Erinle who testified as the PW1 stated that he lives at No.16, Akinosi Street, Agbesa and that the land in dispute is at Igbesa. It is clear by the pleading of the Respondents at paragraph 5 of the 2nd Amended Statement of Defence that, the land they dispute on with the Appellants is at Igbesa. In the same view, the 2nd Respondent Ali Aluko who testified as the DW1 stated that the land is at Idorawa, but it is clear from the evidence in this case that Idorawa is a family name and not a land location. The DW2, 3, 4 and 5 stated that they know the land in dispute. Specifically, the DW1, a licensed surveyor, compared the plans of the land tendered by the Appellants with that tendered by the Respondents and concluded that they refer to the same land, which land is in dispute between the Appellants and the Respondents. It is therefore clear that there was no dispute as to the identity of the land in dispute. The conclusion of the learned trial judge on the identity of the land in dispute did not therefore occasion a miscarriage of justice.

It also the contention of the appellants that the evidence in support of the genealogy of the Respondents is inconclusive, in that, while the Respondents proved the genealogy from the Oduadebu and Imosu branches, they failed in their evidence to link the Fagbenro branch to their genealogy. Though the Respondents responded that they had led evidence linking their genealogy to the Fagbenro branch of the Idorawa family, in their Reply Brief, the Appellants insisted that they have not; because the Respondents’ evidence is in conflict with paragraphs 3, 4, 5 and 6 of the 2nd Amended Statement of Defence.

I have carefully looked at the pleadings of the Respondents with respect to the Fagbenro branch of the Ido Arawa family, and the evidence led thereon. The Respondents have pleaded as follows:-

“3. Defendants aver that the ldorawa family to which they belong consists of 3 (three) branches namely; (1) Oduadebu Stock (2) Fagbenro Stock (3) Imosu Stock.”

They further pleaded at paragraph 9 of the 2nd Amended Statement of Defence that:

“9. Form the Fagbenro stock. Fagbenro begat two children namely (a) Aganju (b) Ige Adamolapa who in his life time was a sango worshipper.”

The DW1 stated in his testimony before the trial court that the Idorawa family consists of 3 (three) branches or stocks which he named as Odo-Adebu, Imosu and Fagbenro while giving the genealogy of the family, PW4 specifically mentioned under cross-examination that Fagbenro’s children were Iya Damilepa and Aganju. It is clear that the contention of the Appellants that the evidence of the Respondents on their genealogy was fractured cannot be sustained.

Apart from the two issues considered above, the Appellants were not able to demonstrate before this court how the failure of the learned trial judge to appraise and evaluate the evidence led by them in prove of their claim, occasioned injustice or miscarriage of justice to them. The Appellants should be reminded that being the persons who seek the declaration of title, the burden was strictly on them to lead credible evidence in support of their claim. The evidence they are required to adduce should be, upon the balance of probabilities or preponderance of evidence, better than that of the Respondents. Any perceived weakness in the Respondents’ case cannot be used in their favour, unless the Appellants are able to show that the weakness in the Respondents, case supports and strengthens the Appellants case. This has not been demonstrated by the Appellants to be so in this case.

The logical corollary of what I have demonstrated above is that, from the evidence on record, the parties have adduced evidence in support of their traditional histories, both of which are plausible and probable. That scenario does not mean that both of them are correct. Certainly one of them must be wrong or mistaken. The learned trial judge rightly observed so, when he held at page 260 lines 5 – 11 of the records as follows:

“But each side claims to be the authentic Idorawa family that owns the land in dispute while insisting that the other is not Idorawa family but impostors. Each side claims to be the true and original owner of the subject land, to the exclusion of the other, yet each of them relies on diametrically divergent traditional history. Thus, it is clear that their evidence of traditional history is conflicting or contradictory one to the other. One of them must be mistaken yet both may be honest in their belief.”

Having found as above, the learned trial judge rightly applied the principle settled in the case of Kojo II v. Bonsie (supra). I had earlier on set out the rule in Kojo II v. Bonsie in the course of this judgment. I need not repeat same here. It suffices to state that, the trial court having found that the evidence of traditional history adduced by the parties were mutually contradicting of each other, was right when he applied the rule set out in the Bonsie case. Though the learned trial judge did not say so in so many words, I am inclined to believe that, he was unable make a preference between the two versions of traditional history given by the parties. In that respect he was right when he applied the principle set out in Kojo II v. Bonsie (supra). The Appellants have not successfully demonstrated that the learned trial judge was wrong in applying that principle. Whether or not the trial court was right in its conclusion when it applied that rule will be considered in issue four (4) formulated for determination in this appeal. For now, I shall proceed to consider issue (3) three.

Arguing issue three (3), learned counsel for the Appellant submitted that the Appellants pleaded and led evidence to the effect that the Respondents are their customary tenants on the land in dispute. He referred to paragraph 3 of the Amended Statement of Claim and the testimony of PW1 at page 220 of the record of appeal. That PW2 (Abdul Wasiu Oga stated at page 221 of the records that their (Appellants’) fore-father, married from Mapa compound where the Respondents come from and that it was the said wife who brought the Respondents’ family to farm on the Idorawa land, which is in dispute. That pw4 also testified that, the Respondents are from Mapa Compound and not Idorawa family, and that this fact was buttressed by DW2 who is also the 3rd Respondent herein, who testified that he is from Mapa Compound. The case of Chabasaya v. Anwasi (2010) (no correct citation) was cited to further submit that, the Appellants have adduced adequate evidence in support of the averments in their pleading as to entitle them to the reliefs claimed.

Learned Appellants’ counsel further contended that, it has been shown on Exhibit “D” that the portion granted the Respondents, father is about 50 (fifty) acres and duly supported by the oral testimony of the Appellants, but the learned trial judge failed to consider same as favourable to the case of the Appellants. He cited the case of Shamaki v. Baba (2000) FWLR (Pt.26) p.1878 at 1888 – 1889 paragraph D – G, to submit that, the trial court owed a duty to consider the evidence placed before it that was in support of the Appellants’ pleadings.

Learned counsel for the Respondents contended that, as borne out by the record, the Appellants did not call any evidence to prove or establish the ingredient of the customary tenancy pleaded by them. That where a party alleges that a customary tenancy exists between that party and another, that customary tenancy must be proved by leading evidence as to the nature of the customary tenancy, the tributes payable or paid etc. That it is not proved by merely pleading and saying ‘that “he is my customary tenant.” It is also submitted that, ingredients of customary tenancy (or reasons given for its waiver) are evidence of customary tenancy, and that, if there is no evidence establishing those ingredients, customary tenancy is not proved. That if no tribute was payable, the reason for non-payment must be stated clearly and that in the instant case, no evidence of payment of tribute was given at all, whether directly or indirectly. The case at Dashi & 3 Ors. v. Satlong & Anor (2009) 1 – 2 S.C. (pt.11) p.1 at 18 – 19 was cited to further submit that, the Appellants failed to call any evidence to show that the Respondents were their customary tenants as pleaded. That none of PW1, PW2 or PW4 gave any evidence of the terms and conditions of the tenancy, the manner of payment of tributes or why tribute is not paid.

Learned Respondents’ counsel drew our attention to paragraphs 1 and 2(a) of the Amended Statement of Defence, where the Respondents denied being customary tenants of the Appellants. That, rather, it is the Appellants who are their customary tenants, as DW1 stated that Obanla or Ilariopa the forefather of the Appellants paid tributes in form of yams, palm oil, Kolanuts and traditional drinks. Furthermore, that the Respondents tendered Exhibit E, which is the proceedings of the Oba’s palace in 1984 in which Alabi Ilariopa (fore-father of the Appellants), was Respondent, which showed that Appellants are customary tenants of the Respondents.

As I pointed out at the beginning of this judgment, the burden of proof is always on the party who alleges the affirmative of an issue. In the instant case, it is the Appellants who have approached the court seeking that the court declare title to the land in dispute in their favour. The Respondents have not counter-claimed, and so in law, they have no burden in law to proof anything, except such issues as the pleadings may determine. In the instant case, it is the Appellants who have the initial burden of proof of his claim to the declaration sought. They have in the process of such proof averred that the Respondents are their customary tenants. In that case, they have the burden to adduce credible evidence to establish that assertion. In other words the Appellants had the burden of proving that the Respondents are their customary tenants.

Now, in the case of Dada v. Bankole (2008) 5 NWLR (pt.1079) p.26, the Supreme Court held, per Tabai, JSC that, a claim which seeks that the Defendants are customary tenants of the plaintiffs and other consequential reliefs emanating therefrom, postulates that the Defendants are in exclusive possession of the land in dispute. That by the operation of Section 146 of the Evidence Act (now Section 143 of the Evidence Act, 2011), there is a presumption that the Defendants in such exclusive possession are the owners of the land until the contrary is proved so as to rebut that presumption. It invariably means therefore, that the plaintiff who seeks to rebut that presumption by claiming that the Defendants are in possession of the land by virtue of an existing customary tenancy, has the onus to adduce sufficient and credible evidence to establish that a tenancy relationship. See also Udeze & Ors. v. Chidebe & Ors. (1990) 1 NWLR (pt.125) p.141 at 160 – 161; Dashi & Ors. v. Satlong & Anor. (2009) 5 NWLR (pt.1134) p.281; Babatunde v. Akinbade (2006) 6 NWLR (pt.975) p.44.

That being as it is, for a Plaintiff to rebut that presumption, he must lead credible evidence to establish that the customary tenancy relationship exists between him and the defendant. In other words, he has to lead credible evidence establishing all the incidents of customary tenancy. In Dashi & Ors v. Satlong & Anor (supra), the Supreme Court defined a customary tenancy as one which involves the transfer of an interest in land from the customary landlord or overlord to the customary tenant which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behavior, he holds in perpetuity. That, unless it is otherwise excluded, the main feature of a customary tenancy is the payment of tributes by the customary tenant to the overlord; and that, the status of his exclusive possession is such that it is enforceable against the world at large including even the customary landlord or those who claim through him. It is therefore, clear that the most recognized way of recognizing a customary tenancy relationship is through the payment of tribute, though same may be waived or excluded by the landlord for a variety of reasons. See Lawani v. Adeniyi (1964) 3 W.S.C.C. p.231 at 233; Makinde v. Akinwale (200) 2 NWLR (pt. 645) p.435 at 447; Lasisi v. Tubi (1974) 1 All NLR p. 438 at 441 – 442.

In the instant case, the Appellants pleaded at paragraph 3 of the Amended statement of claim (page 153 of the records) that:

“The Defendants are customary tenants of the Plaintiffs whose father were (sic) granted land by the Plaintiffs’ great ancestor. The defendants’ ancestor was brought to Idorawa family through her mother who married to great grandfather of the plaintiffs. The Tijani Okunade Ayawokose’s great grandfather was the person who married the defendants’ great grandmother to Idorawa family. The child that was being nursed by the time the wife was married in Idorawa compound was the great ancestor of the defendants.”

Briefly, the claim of the Appellants as per paragraph 3 of the Amended Statement of Claim is that, it was their great grand ancestor that married the great great grandmother of the Respondents. That the said great ,great grandmother then came into the Appellants’ family while nursing the Respondents’ great grandmother. The story did not however state whether the said great grandmother of the Respondents who was brought into the Appellants’ family also married into the Appellants’ family as her mother. In other words, the Appellants did not explain how the Respondents ancestors came to live in the Appellants’ family, their said great grandmother being a woman. There is no iota of evidence either in the Appellants’ pleading or in the testimony of their witnesses about the payment of tribute or whether the payment of tribute was waived. No where in the pleadings or evidence led by the Appellants was it stated, as contended by the Appellants at paragraph 2.6 of the Reply Brief that, they did not collect tribute from the Respondents because the Respondents are their in-laws. Even the pleading at paragraph 11 of the said Amended Statement of Claim does not support the Appellants’ contention. If any, it was meant to stress their claim that the Respondents are strangers to Idorawa compound. The learned trial judge correctly stated the legal position and applied same to the evidence led by the Appellants and came to the conclusion that the Appellants have failed to prove that the Respondents are their customary tenants. Upon the pleadings and evidence on record I agree with him entirely. I see no reason to disturb his findings, which I uphold.
Arguing on issue 4, learned counsel for the Appellants contended that, the Appellants had pleaded and led evidence to the effect that the Appellants’ family had been exercising acts of ownership on the land in dispute. He referred to paragraphs 8, 9, 10 and 11 of the Statement of Claim and the testimony of the PW1 at page 211 of the record of appeal, PW2 at pp. 226-231 of the records to submit that the act of cultivation of the land in dispute, planting of crops shrines, propitiation of deities on the land and litigation on the land amount to acts of ownership. The cases of Awara v. Alalibo (2003) FWLR (pt. 144) p.415 at 420; Aderemi v. Adedire (1960) NMLR p. 398 and Eko v. Ita 11 N.L.R. p. 68 were cited in support. It was therefore submitted that, the Appellants have satisfied the requirements of the law in establishing positive acts of ownership. We were accordingly urged to answer this issue in favour of the Appellants.

Learned Counsel for the Respondents contended that, the Appellants failed to establish sufficient acts for ownership over the land in dispute, as the evidence led by them are not cogent, watery, dilatory and inconclusive. That the Appellants firstly tendered Exhibit ‘C’ to show that their ancestor one Obanla previously litigated on the land, but as reasoned by the learned trial judge, the judgment has not been shown to be related to the land in dispute. It was also not tendered together with a survey plan of the land so litigated upon by Obanla and therefore, there is nothing to show that the land is the, same land in dispute in this case. That Exhibit ‘C’ accordingly had no probative value. Secondly, that the Appellants who claim, to be the traditional owners of the land and had settled on the land from time immemorial had not prepared a survey of the land, but only did the survey in the course of the proceedings by order of the trial court, and which survey plan was admitted as Exhibit ‘D’. That on the other hand the survey plan of the Respondents had been prepared several years before the litigation started or was anticipated, without challenge from any person or persons.

Learned Respondents’ counsel submitted that the Appellants admitted that the 3rd Respondent was installed the Arawa (traditional head) of Idorawa village more than five (5) years ago before this litigation commenced, but the Appellants did not deem it fit to challenge the installation of the 3rd Respondent in court. Finally, that the Appellants’ forefather was the defendant in Exhibit ‘E’, which is the judgment of the Oba-kin-council of Igbesa, wherein it was resolved that the issue of who as between the two parties is the authentic Idorawa family and who is the customary tenant of the other. We were accordingly urged to resolve this issue in favour of the Respondents.
Responding on points of law, learned counsel for the Appellants submitted that, the trial court could not have held as proved that the Respondents are the authentic Idorawa family in the absence of a counter-claim to that effect. He cited the cases of Anieke v. Okolie (2009) 9 NWLR (pt. 1147) p. 641 and Amadi v. Chinda (2009) 10 NWLR (pt.1148) pp. 134-135, to submit that the trial court in its judgment dismissed the Appellants’ case for lacking in merit and did not declare the Respondents the authentic Idorawa family, because the Respondents did not file a counter-claim.

Now, I had earlier while resolving issues 1 and 2 concluded and thus held that the learned trial judge was right in the circumstances of this case, when he held that the rule in Kojo II v. Bonsie is applicable to the facts of this case.

It should be remembered that the rule in Kojo II v. Bonsie (supra) enunciates that, in a claim for declaration of title to land through traditional history, where there is conflict of traditional history, demeanour is of little guide to the truth and that the best way to test the traditional history is by reference to acts in recent years as established by evidence and by seeing which of the two competing histories is none probable. In other words, where there are two competing traditional histories with respect to the title to land in dispute, both of which are equally credible, the court is enjoined to rely on acts of recent possession within living memory on the part of the parties as a test to determine which of the stories is more probable. After weighing the evidence adduced by the parties, the learned trial judge realised the conflict in the traditional histories led by the two parties, and therefore resolved as follows:
“The law is that when evidence of traditional history adduced by both sides are conflicting or divergent as in the instant case, the best approach for the court to follow is to test the traditional history by reference to the facts in recent years as established by evidence to know which of the two competing histories is more probable. The court will then accept and act upon or in favour of the one that appears more probable. See Kojo v. Bonsie II (1951) 1 WLR p.1223 at 1226; Ukaegbu v. Nwololo (2009) 1 NMLR 212.

In my view, the conflicting traditional evidence in this case has made this time-honoured principle relevant and applicable in this matter.”

With the above stated principle at the back of his mind, the learned trial judge proceeded to evaluate all the various acts of ownership relied upon by the Appellants and the Respondents, and concluded at page 6 of the judgment (page 262 of the records) lines 19 – 25 as follows:

“Application of the principle in Kojo v. Bonsie (supra) in this case definitely (sic) as a result of the unsatisfactory traditional evidence adduced by the claimants have not proved sufficient acts of ownership title. I find the recent acts proved by the defendants more convincing, more consistent and more probable. Upon a preponderance of evidence, the claimants have failed to show by credible evidence that they are entitled to a declaration of title to the land in dispute”.

I have carefully read the judgment of the trial court. The learned trial judge exhaustively evaluated the evidence relied on by the Appellants, as can be seen at pages 260-262 of the record of appeal. I am of the view that, it would be helpful if the findings of the learned trial judge on the various pieces of evidence relied on by the Appellants as evidencing acts of ownership in recent years are reproduced. The learned trial judge had found and held that:

“Now, what are the facts in recent years established by the parties? For the Claimants they claim that they have being (sic) propitiating and still propitiate the Sango deity till date in Idorawa and that they farm on the land. They surveyed the land in 2008 upon the order granted them by this Court – The Survey Plan was admitted as exhibit ‘D’. They also rely on exhibit ‘C’ – CTC of judgment of the Ilaro Native Court dated 30th July, 1927. They claim to farm on the land too. They claimed to have customary tenants on the land but called none to testify on their behalf.

On the part of the defendants, they claim to propitiate other deities such as Ogun and Aale while the claimants only propitiate the Sango deity for their own family. They surveyed the land in 1995 and tendered exhibits ‘F’ and ‘F1′ in evidence of this. They claim to still farm on the land. The defendants called two witnesses namely – DW3 – Kehinde Edun and DW4 Joshua Ale, both of whom claimed to be customary tenants of the defendants. They both claim to still farm on the land till the present moment at the pleasure of the defendants and that they pay tributes in form of farm products to the defendants’ family. They claimed that till date they have not been disturbed on the land by anyone.
The defendants also claim that since 2005, the 3rd defendant has been the Arawa of Idorawa… a title which both sides agree, only authentic members of Idorawa family can occupy. Till date, 3rd defendant’s appointment has not been challenged in court. Finally the defendants rely on exhibit E – the judgment delivered on 3rd March, 1984 at the palace of the Olofa of Igbesa by the Oba-in-Council, which was in their favour”.

After analyzing and appraising the evidence of recent acts of ownership relied upon by both parties, the learned trial judge evaluated the evidence as follows:

“In evaluating the parties’ evidence, I will start from exhibit ‘C’, i.e the 1927 judgment. It has to do with trespass on one Ogunmu’s farm at Igbesa. The defendants were Obala of Igbesa, Sesan of Igbesa and Odu of Igbesa. The subject land is stated to be at Osunba. The count in that case ordered a division of the land between Ogunmu and the defendants therein…. That judgment was tendered before this court without being accompanied by any Survey Plan, so there is nothing to show that that land is the same as the land in this case.

Exhibit ‘D’, the Survey Plan of the claimants was made in 2008 by the permission of this Court. Before that permission was granted, the claimants had never, in all these years done any survey of the land. By the claimants’ own admission the 3rd defendant was installed the traditional head or Chief of Idorawa village about five (5) years ago and up till now the claimants who claim to be the real and authentic Idorawa family entitled to nominate the candidate to the stool have not deemed it fit to challenge the 3rd defendant’s installation in court. Their explanation was that the current Oba of Igbesa, a member of the defendants family used his position to influence the choice of the defendant. They also said that they were awaiting the outcome of this case before taking legal action to challenge the 3rd defendant’s installation.

The claimants did not call a single person as witness whom they ever granted land as customary tenant or who is still their tenant on the land today or in recent times, yet they pleaded that they granted land to customary tenants including the defendants on the land.

On the other hand, the defendants had surveyed the subject land since 1995 as evidenced by exhibits ‘F’ and ‘F1’; ten years before this action was instituted. The judgment of the Oba-in-council of Igbesa, exhibit ‘E’ favours and is consistent with the defendants’ claim. The defendants even as at date, have tenants on the subject land who still acknowledge them as the true owners of the land. As against the claimants, defendants called DW3 and DW4 who claim to have been customary tenants of the defendants’ family right from the days of their great grand parents and have been paying tributes to the defendants’ family till date. They have also continued to farm on the land without let or hindrance from anybody including the claimants. Putting all these recent acts on each side of the imaginary scale weighs or tilts heavily against the claimants and in favour of the defendants.”

I have also carefully considered, appraised and evaluated the evidence on record. I find that the above findings of the court below is amply supported by the evidence on record. Those findings of the trial court in my view cannot be faulted as they are amply supported by the evidence on record. Learned counsel for the appellants did not seriously discredit the findings of the learned trial judge. On my part, I have not seen anything on the record to disturb the findings and conclusion of the learned trial judge. I therefore hold that the learned trial judge was right when he dismissed the Appellants’ case for lack of merit. Accordingly, I hereby resolve this issue, also in favour of the Respondent.
Having resolved all the issues in favour of the Respondents, it is clear that this appeal has no merit. It has failed and is hereby dismissed. Consequently, the judgment of the Ogun State High Court delivered on the 16th day of June, 2010 is hereby affirmed. I award fifty thousand naira (N50,000:00) as costs in favour of the Respondents.

CHIDI-NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother HARUNA SIMON TSANMANI, JCA.
I endorse the decision that the appeal is lacking in merit. I dismiss same and abide by the order made therein as to costs.

OBIENTONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother Haruna Simon Tsammani J.C.A. I agree with the reasons and conclusions reached in this lead judgment.
By way of a little contribution, I must say that traditional history as described by Uwaifo JSC in Alli v. Alesinloye (2000) 4 KLR part 101 p.1111 at p.1166 is by nature hearsay upon hearsay over time beyond riving memory, Because of that nature, occasionally, rival claims to ownership of land based on traditional history arise with one historical account sounding as plausible as the other. Where it becomes difficult to accept one version over the other, the rule in Kojo vs. Bonsie comes in. By that rule, the traditional history of each party is tested against recent acts of possession and ownership to determine which of the two stories is more probable. See Eze vs. Atasie (2000) 6 KLR part 107 p.2301 at 2314.
The trial Judge rightly in my view, compared the rival claims based on traditional history and finding himself betwixt and between, rightly applied the rule in Kojo vs. Bonsie and arrived at a conclusion I find difficult to fault. For this reason and the fuller reasons given in the lead judgment, I agree that the appeal has no merit.
I abide by the decision as to costs.

Appearances

T.J. Odesola, Esq.For Appellant

AND

J.K. Adeyi-Odunbaku, Esq.For Respondent