MR. MATHEW KOLADE & ANOR v. CHIEF ADEGOKE ISHOLA AKINOSI & ORS
(2014)LCN/7040(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of March, 2014
CA/I/20/09
JUSTICE
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. MR. MATHEW KOLADE
2. MADAM OMOTAYO OLAYODE Appellant(s)
AND
1. CHIEF ADEGOKE ISHOLA AKINOSI
2. MR. LAMIDI SANNI
3. MR. YINUSA ISHOLA FALEYE
4. MR. LIASU BAMEKE Respondent(s)
RATIO
WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF PROCEEDINGS
It is the law that the issue of jurisdiction where properly raised as has been done in this case, could be raised at any stage of the proceedings, even in the Court of Appeal without the leave of court as a fresh issue. See, INTER-BAN CONSTRUCTION CO. VS. IKE (1993) 7 NWLR (PT. 304) 151 AT 166 and 167, once the issue challenging jurisdiction is tied to the ground(s) of appeal it is in order. PER UWA, J.C.A.
WHETHER OR NOT RULES OF COURT MUST BE OBEYED
Rules of court are meant to be obeyed as they are not made for fancy. In KALU VS. ODILI & ORS (1992) LPELR – 1653 (SC); (1992) 6 SCNJ 76 at Page 36, paras. C-D His Lordship Nnaemeku-Agu JSC in this respect had this to say:
“For the clear principle is that rules of court must prima facie be obeyed. If there has been a non compliance with the rules and it is not explained away, then unless it is of a minimal kind, no indulgence of the court can be granted.”
In this case, the statement of claim is an originating process which must comply with the required procedure, lack of which makes same incompetent. See, also N. A. WILLIAMS & ORS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 ALL NLR (PT. 1) 1, at P. 5; REVICI VS. PRENTICE HALL INCOPORATED & ORS (1969) 1 ALL E. R. 772, AT P. 774; and BANK OF BARODA VS. MERCANTILE BANK LTD. (1987) 3 NWLR (PT. 60) 233, P. 239.
Similarly, His Lordship, Mukhtar, JSC (as he then was, now CJN) stressed on the importance of obedience to the rules of court in the case of ABIA STATE TRANSPORT CORPORATION & ORS VS. QUORUM CONSORTIUM LTD. (2009) 3 – 4 S.C 187; (2009) 9 NWLR (PT. 1145) 1, at p. 29 paras. D – F thus:
“The settled law is that rules of court of each court are not made for fun, but to be obeyed. Once such rules are in place they must be adhered to and not contravened or ignored. This is most especially in matters or procedures of fundamental importance like in the instant case.” PER UWA, J.C.A.
THE CRITERIA FOR A COURT’S JURISDICTION
On the criteria for jurisdiction I would refer to the locus classicus on what confers jurisdiction, see, MADUKOLU & ORS VS. NKEMDILIM (1962) 1 ALL N.L.R. (PT. 4) 587 at 595; (1962) 2 S.C.N.L.R. 341, at page 595 of (1962) 1 ALL N.L.R. (Pt. 4) it was held thus:
“A Court is competent when:-
(1) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another;
(2)The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to exercise of jurisdiction.”
(Underlined mine for emphasis.) PER UWA, J.C.A.
WHETHER OR NOT A CLAIMANT MUST SUCCEED ON THE STRENGHT OF HIS OWN CASE IN AN ACTION FOR DECLARATION OF TITLE TO LAND
In an action for declaration of title to land the onus is on the claimant to prove his title upon a preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See: ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (Pt. 424) 252; SHITTU V. FASHAWE (2005) 14 NWLR (Pt. 1946) 671; EZE VS. ATASIE (2000) 9 WRN 73 AT 88; ADESANYA VS. ADERONMU (2000) 13 WRN 104 at 115 lines 10-35. PER UWA, J.C.A.
METHOD OF ESTABLISHING TITLE OF OWNERSHIP TO LAND
The methods by which a claimant may establish title to land were settled by the Supreme Court in the case of IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227. They are;
(a) By traditional evidence;
(b) By production of documents of title duly authenticated and executed;
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;
(d) By acts of long possession and enjoyment;
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. ,
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them. Where a claimant relies on traditional evidence to prove his claim and it is found to be cogent it is sufficient to sustain his claim. Whereas in the present case the other party also relied on traditional evidence in his defence and counter claim (pages 20 – 26 of the printed records, paragraph 63) and there is a conflict between the histories, which the court is unable to resolve, or where the court finds the evidence to be inconclusive, the title may be established by evidence of numerous acts of possession and ownership or acts in recent memory. see: AKPAN & ORS VS. OTONG & ORS (1996) 10 NWLR (476) 108 at 130 A – C; EKPO VS. ITA (1932) 11 NLR 68; and IDUNDUN VS. OKUMAGBA (supra). PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court sitting at Ilaro, presided over by M. A. Dipeolu, J on 16th April, 2008. The Respondents as plaintiffs in the lower court by their writ of summons dated 30th April, 1997, filed on 6th May 1997 claimed on behalf of Akinosi and Kuole family of Olaru, Aiyetoro against the Appellants as defendants/counter-claimant for the following reliefs:
“(i) Declaration that the plaintiffs are entitled to the Customary Right of Occupancy of their vast area of farmland along Aiyetoro Abeokuta Road, Egbado North, Ilaro Judicial Division and bounded as follows:
BOTTOM: By Idioro village
RIGHT: By Alala village, Elegba Ada village and land of Keesan Orile people.
LEFT: By land of Fagbire family of Olaru and Obada/Abeokuta road and
TOP: By land of Elebute family and land of Keesan Orile people, the Aiyetoro/Abeokuta motor road passes through the vast area of land.
(ii) N100,000.00 (One hundred thousand Naira only) as General damages for trespass unto the said land and for the unlawful arrest and detention of plaintiffs.
(iii) Perpetual injunction restraining the defendants, their servants, agents and/or privies from further acts of trespass on the said land (see pages 1 to 2 of the record).
Pleadings were filed and exchanged; the Respondents filed their statement of claim dated 30th April, 1997 (Pages 4 to 7 of the record).
The Appellants filed their statement of Defence dated 17th February, 2003 and also counter claimed against the Respondents and claimed as follows:
“(i) A declaration that the Defendants are the persons entitled to a statutory right of occupancy over and in respect of the place or parcel of land situate, lying and being along Aiyetoro/Abeokuta Road, Egbado North; Ilaro Judicial Division and its boundaries from Aiyetoro are as follows:
BOTTOM – Land of Idori village
RIGHT – Land of Akinniyi Elegbaada
LEFT – Land of Bembe village
TOP – Land of Elebute and Keesan Orile people.
(ii) N10,000.00 (ten thousand naira only) being damages for trespass committed by the plaintiffs when they entered the defendants’ plants and crops thereon.
(iii) Perpetual injunction restraining the plaintiffs whether by themselves their agents, servants or privies from committing further acts of trespass on the defendants aforesaid land (See pages 20 to 26 of the record).
The Respondents’ reply to the statement of defence and counter claim is at page 29 of the printed records. At the close of trial, judgment was given in favour of the Respondents in which they claimed for declaration, damages for trespass and injunction, pages 91 to 108 of the records.
The Appellants being dissatisfied with the judgment appealed to this court vide their Notice of appeal called 11th July, 2008 filed on 14th July, 2008, containing four (4) grounds of appeal, pages 109 -110 of the printed records.
The background facts on the part of the plaintiffs (now Respondents) are that their ancestors, Akinosi and Kuole, his brother first settled upon the land in dispute. The two brothers migrated from Oyo after consulting the Ifa oracle which directed them to the new settlement which was an abode for birds. They had a farm house on the land in dispute where they also farmed and from where they carried out their hunting activities. They traced their root of title and genealogy to the two brothers.
After Akinosi and Kuole died, their children including the plaintiffs inherited the land and continued to farm on the land in dispute. In exercise of their rights of ownership, the plaintiffs’ family granted portions of the land to tenants for farming purposes and among them was one Akinniyi who was granted a portion of the plaintiffs’ land on payment of annual tributes. The plaintiffs relied on traditional evidence that their ancestors Akinosi and Kuole founded the land, they gave the particulars of the intervening owners through whom they claim. The Plaintiffs made out that the defendants did not prove their root of title.
While on the part of the defendants (now Appellants) they claimed that their ancestors, Layode Aro came from Oyo and founded his settlement about 250 years ago at Saala Orile. Layode Aro was said to have later met Opeyale and they became intimate friends. After Layode Aro died, his children Faleye and Fatona were said to have been granted land absolutely by Opeyale. The Defendants (now Appellants) relied on grant of land made to Faleye and Fatona the descendants of their ancestor, Layode Aro was said to have later met Opeyale and they became intimate friends. After Layode Aro died, his children Faleye and Fatona were said to have been granted land absolutely by Opeyale. The Defendants (now Appellants) relied on grant of land made to Faleye and Fatona the descendants of their ancestor, Layode Aro by Opayale.
From their four (4) grounds of appeal the Appellants formulated three (3) issues for the determination of this appeal. They are:
“1. Whether from the evidence before the court the Plaintiffs are entitled to the right of occupancy over the land in dispute.
2. Whether from the evidence led, the Plaintiffs have proved that the defendants trespass (sic) on the land in dispute.
3. Whether the plaintiffs have proved any damages for trespass.”
The Respondents on their part formulated two issues for the determination of the appeal as follows:
“(i) Whether from the evidence adduced before the trial court, the plaintiffs (now Respondents) have proved a better title to the land in dispute than the Defendants (now Appellants).
(ii) Whether the learned trial Judge has properly evaluated the evidence adduced by the parties in the case.”
When the appeal was argued the learned counsel to the Appellant Olakunmi Lalude Esq. was not in court even though served with the hearing Notice. His brief of argument 13/7/09, originally filed on 14/7/09, refiled on 8/12/10, following the order of this Court of 21/1/10 was deemed as properly filed and served on the same date, was deemed as argued pursuant to Order 18 Rule 9(4) of the Rules of this Court, 2011.
In the Appellant’s brief, in respect of his issue one, which covered grounds 1, 2, 3 and 4, relying on Order 25 Rule 12 of the Rules of the High Court of Ogun State, 1978 it was submitted that the plaintiffs are required to endorse their claim on their statement of claim which supersedes the writ and that non-endorsement of the claim on the statement of claim means there is no claim before the court to adjudicate upon. We were urged to dismiss the plaintiffs’ case in its entirety.
On his second issue, which also covered grounds 1, 2, 3 and 4 it was submitted that there are five ways of proving title to land as laid down in the case of IDUNDUN VS. OKUMAGBA (1976) 1 N.M.L.R. 200 and nothing more.
On his third issue, which covered grounds 1, 2, 3 and 4 it was submitted that anyone claiming damages for trespass to land must prove the damages by credible evidence and be specific as to which is specific or general damages while stating the quantities.
It was argued that the plaintiffs in the lower court did not prove their claim to title over the land in dispute and did not prove how trespass was committed. Further, that a plan was necessary in this case. Also, that the evidence led by the Plaintiffs was grossly unreliable as it was full of contradictions and inconsistencies. We were urged to allow the appeal.
In response, the learned counsel to the Respondent, L. A. Ogunleye Esq. adopted and relied on his brief of argument dated 19/2/10 filed on 22/2/10 as his argument in this appeal in urging us to dismiss the appeal and affirm the Judgment of the lower court. In his brief of argument, he raised a preliminary objection which was incorporated in his brief of argument. He objected to the Appellants’ grounds 1 and 3 of the Notice of appeal for the following reasons:
(i) The said grounds of appeal raise fresh issues which were never raised at the lower court.
(ii) The grounds of appear living (sic) fresh issue, the leave of this Honourable Court to raise any such fresh issue.
(iii) The leave of this Honourable Court has, not been obtained to raise the said fresh issues as contained in the said grounds 1 and 3 of the Notice of Appeal.
It was argued that a fresh issue can only be raised on appeal with the leave of the appellate court, see DOMINIC UZO VS. CHUKWUDI NNALIMO (2000) FWLR (Pt. 3) 414 at 425, IKKOKASHADADI VS. SARAKIN NAMA (2000) FWLR (PT. 23) 1320 AT 1327 amongst others.
It was argued that grounds 1 and 2 of the Notice of Appeal challenging the competence of the writ of summons alleged to have been taken out by a firm of solicitors Chief T. A. Oyagbola & Co. having been raised for the first time in this court without the leave of this court.
The learned counsel to the Respondents also objected to issues 2 and 3 formulated by the Appellants as not arising from the grounds of appeal. It was submitted that issues for determination must arise from the grounds of appear or be subsumable under any issue for determination where this is not the same the issues are incompetent and should be discountenanced, see GEN. SANNI ABACHA vs. CHIEF GANI FAWEHINMI (2002) FWLR (Pt.4) 533 at 616. We were urged to discountenance the Appellants’ issue 2 and 3 for being incompetent.
In the alternative, should the court hold that grounds 1 and 3 of the said Notice of Appeal are competent we were urged to hold that the plaintiffs’ claim is proper before the trial court and to hold that the fact that the plaintiffs claimed as per the writ of summons is not fatal to the case, as the claim in the writ of summons is incorporated in the statement of claim and becomes part of it, otherwise the statement of claim would be defective, see OKOMU OIL PALM CO. LTD VS. O. S. ISERHIENRHEN (2001) FWLR (PT.45) 670 AT 693.
It was argued that even though the writ of summons was taken out by Chief T. A. Oyagbola & Co. it was signed by Miss P. I. Ayantoyinbo and therefore valid and the case properly before the court.
In arguing his two issues, in respect of issue one, it was submitted that the Respondents as plaintiffs relied on traditional evidence in proof of their case. The five ways by which ownership of land may be established were enumerated while relying on the popular case on this point of IDUNDUN vs. OKUMAGBA (1976) 9 & 10 SC 227 at 246 amongst others.
It was submitted that the onus lies on the plaintiff to satisfy the court that he is entitled to the declaration claimed, and rely on the strength of his case and not on the weakness of the defendants’ case, see, CLAY INDUSTRIES LTD VS. ADELEKE AINA (1997) 7 SCNJ 491 at 505, DAVID ITUAMA VS. JACKSON AKPEIME (2000) FWLR (PT. 16) 2809 at 2817 amongst others. The Respondents as plaintiffs traced their claim of ownership of the land in dispute through traditional history to which they pleaded and led evidence in support to establish the origin of the ownership of the land by settlement, of their ancestors and how the land devolved on them through the interceding owners, reference was made to the evidence of the 1st and 6th plaintiffs’ witnesses in proof of their title to the land in dispute. On the other hand, that the defendants who alleged that Opeyale granted a portion of land absolutely to Faleye and Fatona, the children of Layode Aro, the descendants of their ancestors did not know how Opeyale founded the land, see, page 74 of the printed records.
On the identity of the land, it was submitted that the identity of the land was established by evidence, therefore not in dispute and not in doubt as the plaintiff gave the description and the boundaries of the disputed land. It was argued that the land is well known to the parties and that it is belated to raise the issue of the identity of the land now.
It was the contention of the learned counsel that the Respondents proved a better title to the land in dispute by tracing their root of title by traditional evidence to the original owners and founders of the land as against the Appellants who could not establish how their original grantors, Opeyale founded the land. We were urged to affirm that the Respondents proved better title to the land and dismiss the appeal.
On their second issue, Mr. Ogunleye submitted that the trial court properly considered, assessed and evaluated the evidence adduced before it, which is the primary function of the court of trial. It was submitted that the trial court weighed the evidence on both sides on the imaginary scale and gave judgment in favour of the side that was more credible, see, SIMON YARDI VS. ALHAJI ADO SAIBARU (2000) FWLR (Pt. 18) 357 AT 379. We were urged to affirm the decision of the lower court and dismiss the appeal. It is trite that in any matter where a preliminary objection has been raised before the court, same has to be resolved first before going into the substantive matter if need be, depending on the outcome of the objection.
It is noteworthy that the Appellants did not respond to the preliminary objection to grounds 1 and 3 of the Notice of appeal, raised by the Respondents by way of filing a reply brief. I would therefore determine same based on the Respondents’ argument on the preliminary objection.
It was argued by the learned counsel to the Respondents that grounds 1 and 3 of the Appellants’ Notice of appeal are new issues being raised on appeal, without the leave of this court therefore incompetent. No doubt, a fresh issue can only be raised on appeal with the leave of the Appellate Court but, there is an exception to this rule. Where it borders on or challenges the jurisdiction of the lower court, no leave is required as long as the grounds of appeal incorporate the new issue being raised for the first time on appeal. In the present case the Appellants in their issues 1 and 3 challenged the Respondents’ originating process in the trial court as plaintiffs, that is: that the writ of summons was taken out by “Chief T. A. Oyagbola & Co.” a firm of solicitors, not a legal practitioner. This obviously challenges the jurisdiction of the trial court to have entertained the matter in the first place. The issue of jurisdiction is very important to any proceedings and if a party is desirous of complaining about jurisdiction of the trial (or any) court, then it is imperative that a ground or grounds of appeal should be filed to reflect the complaint, which was done by the Appellants in this case.
It is the law that the issue of jurisdiction where properly raised as has been done in this case, could be raised at any stage of the proceedings, even in the Court of Appeal without the leave of court as a fresh issue. See, INTER-BAN CONSTRUCTION CO. VS. IKE (1993) 7 NWLR (PT. 304) 151 AT 166 and 167, once the issue challenging jurisdiction is tied to the ground(s) of appeal it is in order.
It was also argued in the preliminary objection that issues two and three in the Appellants’ brief of argument did not arise from the grounds of appeal. I have examined the grounds of appeal and I am of a contrary view. I am of the firm view that issues two and three cover the entire case of the parties, which is covered by grounds 2 and 4 of the grounds of appeal which attacks in other words the entire judgment of the lower court. For the above reasons, I am of the humble view that the preliminary objection lacks merit, same is hereby dismissed.
With the substantive issues raised by the parties, I would recouch same into the following issues for the determination of the appeal:
1. Whether the trial court had the jurisdiction to adjudicate upon the matter when the statement of claim was not properly endorsed in accordance with Order 25 Rule 12 of the Rules of the High Court of Ogun State, 1978 and the writ having been taken out by Chief T. A. Oyagbola & Co., not a Legal Practitioner.
2. Whether from the evidence adduced before the trial court, the plaintiffs (now Respondents) proved a better title to the land in dispute than the defendants (now Appellants).
In resolving issue one above, it is noteworthy that the Appellants’ grouse is that the statement of claim before the lower court was not properly endorsed and that the writ was taken out by Chief T. A. Oyagbola and Co. and not a legal practitioner. With a look at the statement of claim at pages 4 – 7 of the printed records, particularly at page 7, paragraph 37 states thus:
“37. WHEREOF Plaintiffs claim as per the Writ of Summons.”
Order 25 Rule 12 of the Rules of the High Court of Ogun State, 1978 relied upon by the Appellants provides that a plaintiff shall endorse his claim on his statement of claim which supersedes the writ of summons. The plaintiffs in this case clearly did not comply with this rule as required which makes the statement incompetent for non-compliance with the rules of court. Rules of court are meant to be obeyed as they are not made for fancy. In KALU VS. ODILI & ORS (1992) LPELR – 1653 (SC); (1992) 6 SCNJ 76 at Page 36, paras. C-D His Lordship Nnaemeku-Agu JSC in this respect had this to say:
“For the clear principle is that rules of court must prima facie be obeyed. If there has been a non compliance with the rules and it is not explained away, then unless it is of a minimal kind, no indulgence of the court can be granted.”
In this case, the statement of claim is an originating process which must comply with the required procedure, lack of which makes same incompetent. See, also N. A. WILLIAMS & ORS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 ALL NLR (PT. 1) 1, at P. 5; REVICI VS. PRENTICE HALL INCOPORATED & ORS (1969) 1 ALL E. R. 772, AT P. 774; and BANK OF BARODA VS. MERCANTILE BANK LTD. (1987) 3 NWLR (PT. 60) 233, P. 239.
Similarly, His Lordship, Mukhtar, JSC (as he then was, now CJN) stressed on the importance of obedience to the rules of court in the case of ABIA STATE TRANSPORT CORPORATION & ORS VS. QUORUM CONSORTIUM LTD. (2009) 3 – 4 S.C 187; (2009) 9 NWLR (PT. 1145) 1, at p. 29 paras. D – F thus:
“The settled law is that rules of court of each court are not made for fun, but to be obeyed. Once such rules are in place they must be adhered to and not contravened or ignored. This is most especially in matters or procedures of fundamental importance like in the instant case.”
In the present case the Respondents as plaintiffs in the lower court failed to endorse their claim on their statement of claim, which makes same invalid. See also MUSA VS. HAMZA (1982) 7 S.C. 118; and EDUN VS. ODAN COMMUNITY (1980) 3/11 S.C. 103. Contrary to the argument of the learned counsel to the Respondents, it is fatal to the case of the Respondents as plaintiffs. The statement of claim dated 30th of April, 1997 is incompetent for not having the claim endorsed therein, same is hereby struck out. The appeal is allowed on the first issue alone.
Like flogging a dead horse, I would still consider the second part of the first issue, which challenged the jurisdiction of the trial court to have entertained the matter where the writ was taken out by Chief T. A. Oyagbola and Co. rather than a legal practitioner. At page 2 of the printed records it can be clearly seen that the writ was issued by a firm.
It is endorsed thus:
“The writ was issued by Chief T. A. Oyagbola & Co. of Saala Aiyetoro, Egbado North, Ogun State OR 48, Post Office Road, Mushin, Lagos………….agent for the plaintiff of Saala Aiyetoro, Egbado North, Ogun State OR: c/o 48, Post Office Road, Mushin, Lagos State….”
The Appellant has alleged that the suit was not initiated by due process, having faulted the writ of summons issued by a law firm. It is obvious from page 2 of the printed records; the writ was issued by a firm not a legal practitioner. Section 2(1) of the Legal Practitioners Act, CAP 207 LFN 1990 states who is entitled to practice as a barrister and solicitor, entitled to endorse processes such as required to issue the writ of summons and stating the address of such legal practitioner. Section 2(1) must be read with Section 24 of the same Act which defines who a Legal Practitioner is. It is now well settled law that it is a legal practitioner that is entitled to endorse court processes such as issuance of a writ of summons as in the present case. The name of the person who issued the writ should be clearly stated and identifiable as a legal practitioner. Therefore, the writ of summons issued by a law firm is incompetent, and no court ought to act upon it. See, OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043) 521; (2007) ALL FWLR (PT. 368) 1016; FIRST BANK OF NIGERIA PLC V. MAIWADA & ORS (2012) LPELR – 9713 S.C. and the line of cases.
On the criteria for jurisdiction I would refer to the locus classicus on what confers jurisdiction, see, MADUKOLU & ORS VS. NKEMDILIM (1962) 1 ALL N.L.R. (PT. 4) 587 at 595; (1962) 2 S.C.N.L.R. 341, at page 595 of (1962) 1 ALL N.L.R. (Pt. 4) it was held thus:
“A Court is competent when:-
(1) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another;
(2)The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to exercise of jurisdiction.”
(Underlined mine for emphasis.)
The present case did not comply with (3) above, it was not initiated by due process of law which robbed the trial court of the jurisdiction to entertain same. The effect is that the writ of summons issued in this case on 30th day of April, 1997 is incompetent, same is hereby struck out.
Having struck out the writ of summons and the statement of claim, the appeal should have ended here but, this court being an intermediate court that could be wrong, and I could be wrong on my stand on jurisdiction, I am therefore duty bound to resolve the second issue on its merits. His Lordship Akpata, JSC in the case of NIPOL LTD VS. BIOKU INVESTMENT & PROCO LTD. (1992) 23 NSCC (PT. 1) 606 at 618; (1992) 3 NWLR (Pt. 232) 727 at 747 while relying on his previous decision in FRANCIS ADESEGUN KATTO VS. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (PT. 214) 126 at 149 in this respect made the following observation:
“Where trial court after holding that it had jurisdiction proceeded to determine the matter before it and an intermediate Court of Appeal thinks the trial court lacked jurisdiction the said intermediate court should in the alternative resolve the complaints in the appeal unless both counsel, particularly Respondent’s counsel, concede that the trial court lacked jurisdiction in the matter. While the Supreme Court, being the final Court of Appeal, can afford not to pronounce on other issues placed before it where it finds that the trial court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted by the Supreme Court should not ignore other issues raised in the appeal. It should pronounce on them.”
(Underlined mine for emphasis.)
The reason is because should the Supreme Court overrule this Court on jurisdiction, the matter would still be sent back for hearing and determination on the merits which would cause a lot of delay and a waste of resources. For these reasons, I shall proceed to resolve the second issue in this appeal which is:
“Whether from the evidence adduced before the trial court, the plaintiffs (now Respondents) proved a better title to the land in dispute than the Defendants (now Appellants).”
I earlier in this judgment reproduced the claim of the Respondents as plaintiffs in the lower court. In an action for declaration of title to land the onus is on the claimant to prove his title upon a preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See: ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (Pt. 424) 252; SHITTU V. FASHAWE (2005) 14 NWLR (Pt. 1946) 671; EZE VS. ATASIE (2000) 9 WRN 73 AT 88; ADESANYA VS. ADERONMU (2000) 13 WRN 104 at 115 lines 10-35.
The methods by which a claimant may establish title to land were settled by the Supreme Court in the case of IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227. They are;
(a) By traditional evidence;
(b) By production of documents of title duly authenticated and executed;
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;
(d) By acts of long possession and enjoyment;
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. ,
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them. Where a claimant relies on traditional evidence to prove his claim and it is found to be cogent it is sufficient to sustain his claim. Whereas in the present case the other party also relied on traditional evidence in his defence and counter claim (pages 20 – 26 of the printed records, paragraph 63) and there is a conflict between the histories, which the court is unable to resolve, or where the court finds the evidence to be inconclusive, the title may be established by evidence of numerous acts of possession and ownership or acts in recent memory. see: AKPAN & ORS VS. OTONG & ORS (1996) 10 NWLR (476) 108 at 130 A – C; EKPO VS. ITA (1932) 11 NLR 68; and IDUNDUN VS. OKUMAGBA (supra).
Without doubt, both parties in this case relied on evidence of traditional history to prove their title to the land in dispute. The plaintiffs from their pleadings and evidence at the trial, relied on traditional history and traced their root of title to the land in dispute through their ancestors, Akinosi and Kuole his brother who came from Oyo and settled upon the land, both farmed and hunted on the land, on their demise their children inherited the land.
For ease of reference I will highlight some of the paragraphs of the Appellants’ pleadings.
“5. The first settler on the land in dispute is one Akinosi (deceased) from Oyo about 200 years ago. His elder brother is one Akinosi (deceased) from Oyo about 200 years ago. His elder brother is one Kuole (deceased) who later came from Oyo and also settled on the land in dispute with his younger brother, the said Akinosi.”
Paragraphs 7 and 8 show why and how Akinosi settled on the virgin land, now in dispute. Paragraphs 10 – 13 show the movement of Akinosi and his brother Kuole until they settled to hunt and farm on the land in dispute, also the genealogy of the two brothers, tracing their history and descendants; also, paragraphs 14-18. Similarly paragraphs 22, 23, 25 and 26 traced the family history of the Respondents on the land in dispute, pleading specifically in paragraph 26 that the Appellants (defendants) are not related to them or their ancestors in any way that is: Akinosi or Kuore and therefore not entitled to inherit any portion of the land in dispute. The clear testimony of the PW1 (Adegoke Akinosi – the 1st Plaintiff) supports the Plaintiffs’ pleadings on how their ancestors got to the land in dispute through whom they inherited same, see pages 50 – 52 of the printed records. The PW1 also gave evidence to the effect that the defendants are not related to them, page 52 of the printed records. Similarly, the evidence of the PW6 Momodu Banmeke was also in line with the plaintiffs’ averments as to how they inherited the land from their ancestors and the fact that their ancestors were the first settings on the land in dispute having founded same.
The learned counsel to the Appellants in his brief had argued that the evidence led by the Plaintiffs was grossly unreliable, full of contradictions and discrepancies but, failed to show or highlight the alleged contradictions and discrepancies, for this reason I will discountenance the argument of alleged contradictions. I have carefully considered the evidence of PW1 and PW6 regarding their original ancestors, their respective evidence is essentially in line with their pleadings. On the other hand, I did not see, any contradiction in the evidence of these two witnesses regarding the founding of the land.
On the part of the Appellants who were defendants in the lower court and counter claimed, they alleged that Opeyale granted a portion of land absolutely to Faleye and Fatona, the children of Layode Aro, the descendants of their ancestors, see paragraphs 4, 5, 6 of the Appellants’ pleadings, Page 20 of the printed records, to the effect that the land in dispute was granted to Faleye and Fatona by Chief Opeyale the Baale of Kessan Orile over 205 years ago. Further, in paragraphs 10, 11 and 12 at page 21 of the printed records showed how and why the land was granted the Appellants’ ancestors by Opeyale, also paragraphs 21, 22 and 23 to show the grant by Opeyale, while the averments in paragraphs 12-20 gave the history of the family and their genealogy. While the evidence in support of the pleadings, the DW5, the 1st defendant (Appellant) under cross-examination testified that he is a descendant of Olayode Aro, and that Opeyale never granted Olayode Aro land and that he did not know how Opeyale got into the land. At page 74 of the printed records he said:
“I am a descendant of Olayode Aro. Opeyale never granted Olayode Aro land. …………..Fakeye and Fatona were granted land absolutely but not as tenants. I do not know how Opeyale got on the land.”
(Underlined mine for emphasis).
It is clear that the Appellants do not know how Opeyale through whom they claim got unto the land. I agree with the submissions of the learned counsel to the Respondents that once a party pleads and traces his root of title to a particular person, for that party to succeed, he must establish how he or his family delivered his or their root to the land. Failure to do so is fatal to his case, see, NWADIOGU VS. NNADOZIE (2001) FWLR (PT. 61) 1625. In the present case the plaintiffs in my view have established how they derived their title to the land through their ancestors, Akinosi and Kuole who founded the land. The Appellants have not shown or proved how their grantor Opeyale got unto the land.
The Appellants also faulted the claim of the Respondents in that there is no plan to show the identity of the land in dispute. In my respectful view, the identity of the land in dispute is not in doubt. In paragraph 4 of the statement of claim, the plaintiffs gave the description of the land and its boundaries and led evidence to confirm same through PW1 and PW6 as well as their boundary neighbours PW3, PW4 and PW5. Paragraph 21 of the statement of defence and counter claim also admitted the boundaries of the land in dispute which tallies with that of the Respondents. The land is therefore well known to the parties and it is not disputed. It is trite that where the land is well known to the parties further proof of the identity of the same land is not necessary by a survey plan. The acid test is: Whether the land the subject matter of the declaration sought can be ascertained with definite certainty so that a surveyor taking the record of proceedings can produce a plan showing accurately the land which title has been granted. See, AYANBOYE VS. BALOGUN (1990) 5 NWLR (PT. 151) 392; (1990) 9 SCNJ 23, 35, 36, GARBA VS. AKACHA (1966) NMLR 62; BANJO & ORS VS. AIYEKOTI & ORS (1972) 1 N.M.L.R. 2010, OLUSANMI VS. OSHASONA (1992) 6 NWLR (PT. 245) 22. The acid test was laid down in A. KWADZO VS. R. K. ADJEI 10 WACA 274. See OLALE VS. EKWEKENDU (1989) 20 NSCC (PT. 11) 118 at 157; (1989) 4 NWLR (PT. 115) 326 at 346.
It is the law that a counter claim is a separate and distinct claim by a defendant against a plaintiff. The onus is on the counter claimant to prove his counter claim. He must plead, and prove his counter-claim in the same way as the onus of proof lies on the plaintiff to plead and prove his claim. In the present case, the onus lies squarely on the Defendants/Appellants to prove their counter-claim. It does not matter whether the plaintiffs’ case succeeded or failed. See, PABOD SUPPLIES LTD. V. BEREDUGO (1996) 5 NWLR (Pt. 446) 304 at 322, OYEGBOLA VS. ESSO (WEST AFRICA) LTD. (1966) 1 ALL N.L.R. 170, IGWE VS. WALI (1993) 6 NWLR (pt. 300) 470 at 482, OGBONNA VS. ATTORNEY-GENERAL, IMO STATE (1992) 1 NWLR (PT. 220) 647 at 675, U.B.A. PLC VS. JASE (1997) 7 NWLR. (PT. 513) 387 at 403 and IKENI VS. EFAMO (1996) 5 NWLR (PT. 446) 64 at 86.
The Appellants relied on traditional evidence in proof of their claim which they failed to prove. The Apex Court gave the outline of what has to be done where traditional evidence is relied upon in the case of ANABARONYE VS. NWAKAIHE (1997) 1 NWLR (PT. 482) 374 at 383 paragraphs C-D, His Lordship, Adio, JSC stated thus:
“Also, where evidence of 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 did he found the land and
(c) particulars of the intervening owners through whom he claims.
See ONWUGBUFOR V. OKOYE (1966) 1 NWLR (PT. 424) 252 at Page 280.”
In the present case, it is not enough that the Appellants traced their title to Opeyale and stopped there. The Appellants were required to go further to prove how Opeyale got his title or came to have the title vested in him including where necessary, the family that originally owned the land. In the present case, it is obvious that the Appellants failed in their counter claim to prove how they came to own the land in dispute. It is not enough for them to testify only that they own the land and how and why Opeyale granted, their ancestors the land. They are required to prove from whom the title started, to Opeyale through whom they claimed to their ancestors and finally to the Appellants, this they failed to do. See, AJIBONA VS. KOLAWALE (1996) 10 NWLR (PT. 476) Page 22.
In my respectful view the Appellants did not plead and prove the facts of traditional history through which they claimed title to the land in dispute.
I am at one with the learned trial judge, at page 103-104 of the printed records when he held thus:
“A careful consideration of the authorities and decided cases amply shows that there is no onus on a plaintiff who claims title by traditional evidence and who successfully establishes his title by such evidence to prove further acts of ownership numerous and positive enough to lead to the inference that he is the exclusive owner.”
Proof of title by one method is enough; I hold that the Respondents as plaintiffs proved their title to the land in dispute. In the present case both parties relied on traditional evidence, which is conflicting and in the circumstance the learned trial judge cannot be faulted in resorting to the application of the Rule in KOJO VS. BONSIE (1957) 1 WLR 1223, that is: testing the traditional history by reference to facts in recent years as established by evidence and by seeing and weighing which of the two versions of the two conflicting evidence is more probable.
The learned trial judge was right when he concluded at page 104 thus:
“In the light of all that has been stated above and since the plaintiffs clearly pleaded who it was that founded the land they claim in this action (i.e. Akinosi), how he came to found it and the particulars and names of the intervening owners through whom they claim the said land, I find the plaintiffs’ evidence more plausible and probable. While the defendants’ evidence is watery, with a break in chain. The 5th defence witness in his testimony traced his genealogy to one Layode Aro, but that one Fatona was his grandfather. Fatona and Faleye who were brothers were granted land by one Opayele, Layode’s friend. He denied knowing how the said Opayele got the land. It is trite that in a claim for declaration for entitlement to customary right of occupancy, the plaintiff (claimant) relying on grant must prove the title of his grantor, this the defendants/counter claimants have failed to prove herein. For the foregoing, I am satisfied with the evidence adduced by the plaintiffs and hold that the plaintiffs have discharged the burden of proof placed on them by law and proved title to the land in dispute.”
I cannot fault the above decision. The plaintiffs having been declared as having a better title, they rightly maintained an action in trespass, the defendants also in their pleadings and evidence before the court (DW1) admitted going into the land in dispute, the plaintiffs’ claim for trespass was apt with the interference of the defendants and rightly granted their claim in trespass by the trial court. Having succeeded in respect of trespass, naturally the plaintiffs are entitled to damages and same was rightly granted by the learned trial judge.
In conclusion, I am of the firm view that the learned trial judge rightly held that the plaintiffs proved their title to the land in dispute and that the defendants failed to prove their counter-claim. The appeal is without merit, and it is hereby dismissed. The judgment of the learned trial judge, M. A. Dipeolu, J of the High Court of Ogun State delivered on 16th day of April, 2008 in suit No. HCL/10/97 is hereby affirmed. I award costs of N50,000.00 (Fifty Thousand Naira) in favour of the Respondents.
HARUNA SIMON TSAMMANI, J.C.A.: I was privileged to read before now the judgment delivered by my learned brother, C. N. Uwa, JCA.
My learned brother has adequately considered the issues that came up for determination in this appeal. I agree with his reasoning and conclusions thereon.
I abide by the order on costs.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment of my Lord Chidi Nwaoma Uwa J.C.A. which has just been delivered. I agree with my lord that the claim of the Respondent to the land in dispute was not upset in the lower court and consequently that court was right in its judgment in the Respondent’s favour. The appeal lacks merit and is dismissed.
Costs of N50,000 is awarded to the Respondents.
>
Appearances
Appellants served but absent.For Appellant
AND
L. A. Ogunleye Esq.For Respondent
