TUNDE ODUGBOSE v. FRANCIS ADE AINA
(2014)LCN/7044(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of March, 2014
CA/I/257/2011
RATIO:
EVIDENCE: WHETHER AN APPLATE COURT CAN INTERFERE WITH THE EVALUATION OF EVIDENCE BY THE TRIAL COURT
It is the law that, the duty of evaluating or assessing the evidence led at the trial is within the forte of the trial court. It is his primary responsibility to do the assessment and to ascribe probative value to both oral and documentary evidence tendered and validly admitted by him. An appellate court such as this would be very slow to interfere or disturb the evaluation of evidence made by the trial court. Generally, an appellate court will only intervene where it is satisfied that the trial court did not properly evaluate the evidence, or that it made a wrong approach to the evidence before it; or that the evaluation of the evidence was not the product of the advantage the trial court is placed of seeing or listening to the witnesses who testified before him. Where the evidence to be evaluated is documentary and being the best evidence, the appellate court is in as good position as a trial court to evaluate same. The accepted legal position therefore is that, this court should not disturb the findings of a trial court except where on the evidence on record, they are perverse or have otherwise occasioned a miscarriage of justice. See Oshe v. Okin Biscuits Ltd (2010) 11 NWLR (Pt. 1206) p.482; Mafimisebi v. Ehuna (2007) 2 NWLR (Pt. 1018) p.385; Teriba v. Adeyemo (2010) 13 NWLR (Pt. 1211) p.242; Agbakoba v. INEC (2008) 8 NWLR (Pt. 1119) p.489; Obineche v. Akusobi (2010) 12 NWLR (Pt. 1208) p.383 and Fagbero v. Arobadi (2006) 7 NWLR (Pt. 978) p.172. per HARUNA SIMON TSAMMANI, J.C.A.
LAND LAW: WHETHER THE CLAIMANT MUST LEAD CREDIBLE EVIDENCE IN ESTABLISHING THE IDENTITY OF THE LAND IN DISPUTE
The law is that, where the identity of the land subject of a claim for a declaration of title is in dispute, the claimant has a bounden duty to lead credible evidence which will establish the identity of the land he claims. This he can do by one of two ways. He can do that by leading credible oral evidence which describes with degree of accuracy such that will guide a surveyor called upon to produce a plan of the land in dispute. Secondly, he can file a survey plan showing the extent of the land claimed and reflecting all the necessary features on the land with clear boundaries. See Awote v. Owodunni (No. 1) (1987) 2 NWLR (Pt. 57) p.366; Ogun v. Akinyele (2004) 18 NWLR (Pt. 905) p.362; Olisa v. Asojo (2002) 1 NWLR (Pt. 747) p.13 and Mrs. Odedele & Anor v. Alhaji Fasilat Akande (2002) 9 – 10 SC p.124.
This is so because, it is now settled law that, the first duty of a Plaintiff or a Counter Claimant in a claim for declaration of title to land, is to prove with certainty, the identity of the land to which his claim relates. The declaration can therefore only be granted if the extent and/or boundaries of the land claimed are ascertained. See Fatuade v. Onwoamanam (1990) 3 S.C. (Pt. 11) p.138; Nwokorobia v. Nwogu (2009) 10 NWLR (Pt. 1150) p.553; Ezeakabekwe v. Emenike (1998) 11 NWLR (Pt. 716) p.653; Auta v. Ibe (2003) 7 SC p.129 and Odofin v. Oni (2001) 3 NWLR (Pt. 701) p.488. per HARUNA SIMON TSAMMANI, J.C.A.
LAND LAW: WHETHER A CLAIMANT MUST PROVE THE BOUNDARIES AND FEATURES OF THE LAND HE CLAIMS
As I stated earlier, the first duty of a claimant is to prove with certainty the extent or boundaries and with features of the land he claims. I also stated that one of the ways of proving the identity of the land is by filing and/or tendering a survey Plan to that effect. All that the law requires is that the plan tendered must accurately and with particularity and precision; show the exact features and boundaries of the land claimed. See Olusanmi v. Oshasono (1992) 6 SCNJ p.282; Onwuka & Ors. v. Ediala & Anor (1989) 1 SC (Pt. 11) p.1; Adoruba v. Odiese (1990) 1 S.C. p.219, Ekpemupolo & Ors. v. Edremoda (supra) and Nwabuokua & Ors. v. Onwordi & Ors. (2006) 5 SC (Pt. 111) p.103. per HARUNA SIMON TSAMMANI, J.C.A.
LAND LAW: WHETHER A WEAKNESS IN THE DEFENDANT’S CASE WILL AID THE PLAINTIFF’S CASE
It is the law that in an action where a plaintiff seeks a declaration of his title to a parcel of land, he has the duty to lead cogent and credible evidence which will satisfy the court as to make the declaratory order in his favour. To succeed in doing that, the Plaintiff must rely on the strength of the evidence, both oral and documentary adduced by him in proof of his claim. In other words, in his effort to satisfy the court that he is entitled to the declaration of title sought, he has to rely on the strength of his own case. The weakness of the defendant’s case will only help him if it supports his case, in which case, he can rely on it to strengthen his claim. Accordingly, even where admissions are made by the defendant, they will not aid the Plaintiff’s case, save were such admissions support the case of the Plaintiff. See; Gankon v. Ugochukwu Chem. Ind. Ltd. (1993) 6 NWLR (Pt. 297) p.55; Onunuju v. A.G. Anambra State (2009) 10 NWLR (Pt. 1148) p 182; Kodilinye v. Odu WACA p.336 at 337 per Webbher, C.J; Chukwu v. Amadi (2009) 3 NWLR (Pt. 1127) p.56; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) p.81 and Iroagbara v. Ufomadu (2009) 11 NWLR (Pt. 1153) p.587. See also Shasi v. Smith (2009) 18 NWLR (Pt. 1173) p.330 and Ekpemupolo v. Edremodo (2009) 8 NWLR (Pt. 1142) p.166. per HARUNA SIMON TSAMMANI, J.C.A.
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
TUNDE ODUGBOSE Appellant(s)
AND
FRANCIS ADE AINA Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): Before the Ogun State High Court, Ijebu-Ode Judicial Division, the Respondent who was the Plaintiff, prayed at paragraph 26 of his 2nd Amended Statement of Claim dated and filed the 4/8/2009 for the following reliefs against the Appellant:
26. WHEREOF THE CLAIMANT hereby claims jointly and severally against the defendants as follows:-
(a) DECLARATION that the claimant is entitled to be granted statutory right of occupancy in respect of the parcel of land at Eyindi along Ijebu/Ijesha Road, Ago-Iwoye which land is verged RED on Survey Plans Numbers YSG/478 A and B dated 6th July, 1993 drawn and signed by Surveyor YEMI OKULAJA.
(b) N100,000:00 being special and general damages for the trespass committed by the Defendant when on the 7th day of August 2001, the defendant with his labourer entered claimant’s parcel of land at Ijebu/Ijesha Road, Ago-Iwoye, cut clown the claimant’s properties i.e. cassava, pineapples and plantains and also damaged wall fence on the land without the consent of the claimant.
The Respondent (Plaintiff) also claimed for special damages as pleaded at paragraph 27 of the said 2nd Amended Statement of Claim. I find it pertinent to point out that the Respondent sought for the joinder of one Olaitan Adeite as the 2nd defendant, and which order for the joinder was made on the 15/2/2005. The Statement of Claim was accordingly ordered to be amended so as to reflect the joinder. The order for amendment was not complied with and proceedings in the matter continued till the 4/8/09 when the name of the said 2nd defendant was reflected on the 2nd Amended Statement of Claim.
The Respondent having failed to effect the joinder and the consequent amendment within the time stipulated by Order 26 Rule 4 of the Ogun State High Court (Civil Procedure) Rules, 1987 applicable to the action at the time the order was made, the order for joinder of Olaitan Adeite was deemed to have abated, and consequently, the name of the said Olaitan Adeite was struck out of the action as a defendant. This suit was therefore heard and determined against the Appellant on record alone.
Now, the case of the Respondent as Plaintiff before the trial court is that he had bought a total of six plots of land at Ijebu/Ijesha Road, Ago-Iwoye from the Appellant’s family known as the Eyindi family in 1976. That the land was bought in two lots of four (4) and two (2) plots respectively. He also stated that the land was surveyed by the defendant’s family surveyor who ascertained the land to be made up of a total of six (6) plots and a purchase receipt was issued to him (Respondent). It is also the case of the Respondent that when he paid the purchase price, he was put into possession, whereof he exercised various acts of ownership on the land such as the planting of crops like cassava, pineapple and other crops. That he applied for and was granted approval of a building plan for a house to be constructed on the land, and also surveyed the land in 1993 after he had marked the boundaries of the land by erecting concrete blocks at each corner of the land.
It is also the Respondent’s case that on the 7th day of August, 2001 he met the Appellant with some labourers on the land sold to him, cutting down and destroying the cassava, pineapple and plantain he had planted on the land. That the Appellant also destroyed the wall fence he had erected round the land. According to the Respondent, he then reported the incident to the police who arrested and charged the Appellant to the Magistrate’s court for conspiracy, and willful and unlawful damage to property. At the trial, the Respondent tendered the purchase receipt dated 18/5/1976, the two survey plans of the parcels of land, the Approved Building Plan etc, which were admitted in evidence as Exhibits A, B, C, D, E1-E9 and F respectively. The Respondent testified as the PW1 through whom the exhibits were tendered, but called no other witness.
The Appellant, who was Defendant at the trial court, testified as the DW1. His case is that of denial of the Claims. It is therefore his case that, the original owner of the land is his ancestor called Adeosun Eyiri who had inherited the land from his own father called Akingbade, the first Oba Ebuneawe of Ago Iwoye. That his (Appellant’s) father was the grandson of Adeosun Eyiri and that he inherited the land from his father, George Odugbose. He however admitted that his family (Eyindi family) had indeed sold six plots of land to the Respondent, but contended that the six plots of land now claimed by the Respondent are not the plots sold by his family to the Respondent. He also contended that the land claimed by the Respondent in the survey Plans (Exhibits B and C) is about fourteen and half plots (14 1/2) and therefore far more than the number of plots sold to the Respondent.
The Appellant further contended that the Respondent had instituted the instant case because he had been asked by the Eyindi family to vacate the land he now claims and which had not been sold to him, and which land claimed is in excess of the six plots sold to him. He denied that he destroyed any crops planted by the Respondent nor any wall fence claimed to have been constructed or erected by the Respondent. He also admitted that the Respondent had challenged him on the land and had him arrested by the police. He also admitted being arraigned in court in respect of the dispute between him and the Respondent and tendered the letter of invitation he received from the police consequent upon the report made by the Respondent. The said letter is in evidence as Exhibit G. He also called one other witness who testified as DW2.
Hearing in the matter was concluded on the 6/7/2010 when the learned trial judge delivered Ruling on the Appellant’s motion to call the Surveyor-General as a referee in the matter. Subsequently, parties addressed the court and in a well considered judgment delivered on the 3rd day of March, 2011, the learned trial Judge; Olarewaju Mabekoje; J entered judgment in favour of the Respondent (plaintiff) and dismissed the Appellant’s (Defendant’s) Counter-claim.
Let me step back to state here that the Appellant had in paragraph 24 of his Amended Statement of Defence dated the 3rd day of March, 2003 and filed the same dated, Counter-claimed against the Respondent as follows:-
24. The Defendant for himself and on behalf of Adeosun/Eyiri family claims as follows:
(a) An order forfeiting the allocation of six plots of land allocated to the plaintiff by Adeosun/Eyiri family BUT with a right to recover the money deposited with Adeosun/Eyiri family.
(b) An Order of perpetual injunction restraining the Plaintiff, his heirs, servants or agents from further claim to any area of land belonging to Adeosun/Eyiri family.
(c) N20,00 being General and Special damages for plaintiff’s encroachment on Defendant’s land.
As pointed out earlier, this counter-claim of the Appellant was also dismissed as lacking in merit. The Appellant was, not unexpectedly, displeased with the judgment of the learned trial judge and therefore approached this court in the exercise of his Constitutional right of appeal.
The Appellant therefore filed a Notice of Appeal which is undated in March, 2011 but filed the 01/4/2011. It consists of four (4) Grounds of Appeal, which without their particulars are as follows:-
A. The judgment does not support the weight of the oral and documentary evidence before the court.
B. The learned trial Judge misdirected himself or facts to have held that:
“I should also add that the evidence of DW2 that the land in dispute is not the land sold to the Plaintiff is an after thought having earlier testified that it was the said land sold to the plaintiff that the Defendant inherited from his father.”
C. The learned trial Judge misdirected himself on facts to have held that;
“It should be noted that in contending that the disputed land is about 14 1/2 plots of land, the Defendant has not told the court the measurement or land area of a plot of land.”
D. The duties on a Plaintiff seeking for a court declaration on a disputed land are not in this case as to be entitled to an order of declaration.
As the Rules of this Court demand, the parties filed and exchanged briefs of arguments. The Appellant’s Brief of Arguments settled by Elder Apostle Akinlolu Akiyode Esq. was dated the 23/12/2011 and filed the 01/2/2012. Therein, the Appellant nominated three issues for determination as follows: –
I. Whether, bearing in mind the oral and documentary evidence tendered in this case, the trial learned Judge (sic) weighed same properly before granting a declaratory order vesting the land described in Survey Plans number YSG 478 A and B in the Respondent and not in the Appellant.
II. Whether the onus of proof is not on the Plaintiff who asserts that the area covered by the Survey Plans he tendered as exhibits B and C corresponded with an area of land actually sold to him i.e. 6 plots and not 14 1/2 plots as alleged by the Appellants.
III. Whether the Respondent has done all that is required for a party seeking for a declaratory judgment over an area of land before he could be declared as being entitled to the land.
The Respondent’s Brief of Arguments was settled by Taiwo Odumosu, Esq. It was dated and filed the 05/4/2012. Like in the Appellant’s Brief, three issues were also distilled for determination by the Respondent. These are:-
(a) Whether in view of the oral and documentary evidence before the learned trial Judge, the trial court did not properly weigh the evidence before granting a declaratory order vesting the land in Exhibits B and C in favour of the respondent.
(b) Whether the respondent has not discharged the onus on him by producing exhibits B and C.
(c) Whether the respondent has not provided enough requirements expected of a party seeking declaratory judgment.
I notice that neither the Appellant nor the Respondent tied the issues they formulated to any of the Grounds of Appeal. It is the settled law that issues for determination are distilled or formulated from the grounds of appeal filed. There is therefore always the need that issues formulated be related to or tied to the specific grounds of appeal from which they are formulated. Parties in the formulation of issues are therefore always enjoined to tie the issues they have formulated to the grounds of appeal from which they have been so formulated. This will act as ready guide to the court where the competence of issue or issues has been raised by the adversary. I have only pointed out this fact so as to draw the attention of counsel, so that they will be property guided in the future. As of how no issue has been raised on the competence of the issues so formulated in this appeal. I will therefore say no more on that. I only wish to point out that the issues formulated by the parties are similar in scope and substance. However, considering the substance of arguments of counsel in their respective briefs of arguments, all the issues as formulated by the Appellant, shall be considered together.
Now, arguing on issue one, learned counsel for the Appellant contended that in evaluating the evidence, the court would weigh the evidence on both sides on an imaginary scale. That the total evidence given by the Respondent in proof of his claim for declaration of title to the land in dispute described in the Survey Plans admitted as Exhibits B and C is as contained at pages 22-31, while that of the Appellant is at pages 66-71 of the record of appeal. Learned counsel went on to sum up the Respondent’s case in paragraphs 4.02-4.03, while that of the Appellant at paragraphs 4.04-4.08 of the Appellant’s brief of arguments. Learned counsel for the Appellant after summing up the evidence led by the parties at the trial submitted that, the learned trial judge had the duty to properly evaluate the evidence before making findings of facts thereon. The case of Saraki v. Societe Generale Bank (1995) 1 NWLR (Pt. 371) p. 325 at 330 was cited to further submit that, where the trial court failed to properly evaluate, this court is entitled to do same and make necessary findings on it. It was therefore contended that, the learned trial judge failed to properly evaluate the evidence before him nor did he make proper findings of facts thereon.
Appellant’s learned counsel went on to submit that, the Appellant put the identity of the 6 plots of land sold by his family to the Respondent in dispute, when he gave evidence to the effect that, the land in Survey Plans tendered as Exhibits B and C belong to himself and one Adeife respectively, while the 6 Plots sold to the Respondent has not been tampered with. That the Respondent has not surveyed the land sold to him, but had confessed to the Oba of Ago-Iwoye that he mistakenly surveyed the land not sold to him; and that it is the evidence of the Appellant that, when he and his uncle Alhaji Y.S. Bakare showed the Respondent the 6 Plots of land, they had warned him and he had agreed to use the Eyiri family Surveyor when he is ready to survey the land, but the Respondent used another Surveyor to survey the land in 1993 without informing them.
It was further contended by learned counsel for the Appellant that, the learned trial judge had held that the evidence of the Appellant is not reliable because DW2 had stated that the land sold to the Respondent is the same land the Appellant was farming on, but quickly turned around to state that, the land sold to the Respondent is different from the land on which the Appellant was farming. That the learned trial judge also found as false and unreliable the evidence of the Respondent that he had fenced the land in dispute; which is in agreement with the evidence of the Appellant that there was no fence on the land covered by Exhibits B and C. Learned counsel for the Appellant then submitted that the trial court made a wrong conclusion when he held that, the mere fact that the boundaries of the land sold to the Respondent are not stated on the purchase receipt is of no moment because both the Respondent and the Appellant agreed that the land sold to the Respondent was shown to him by members of the Appellant’s family. He contended that the learned trial judge erred because, (a) the land sold to the Respondent was receipted in 1976 after the 6 plots were shown to the Respondent by himself and late Alh. Bakare, (b) Appellant and Respondent agreed that the Respondent would use the Appellant’s family Surveyor but the Appellant surveyed the land in 1993 using another Surveyor, (c) the Respondent surveyed 14 plots instead of 6 plots as shown by the total area of land covered by Exhibits B and C; and (d) the learned trial judge held that the Appellant did not give evidence as to what a plot of land measures, so as to establish that Exhibits B and C cover more than 6 plots.
It is therefore submitted that the above findings and conclusions of the learned trial judge are erroneous because, (a) the court could take judicial notice of the fact that a modern standard plot is 120 feet by 60 feet while an old plot is 100 feet by 50 feet, (b) the plaintiff who asserted that what his Surveyor measured in Exhibits B and C is an area of six (6) plots; and (c) an attempt to clear the issue of plots covered in Exhibits B and C by calling the Surveyor-General was frustrated by the Respondent who vehemently opposed same. Learned counsel then relied on the case of Adeyemi v. Okobi (1997) 51 L.R.C.N. p.1529 at 1548 to submit that, the learned trial judge made unsound findings, as he failed to consider the contents of Exhibits B and C, and also failed to refer the said exhibits to a referee thereby shutting out vital evidence which would have helped the court.
On issue two, learned counsel for the Appellant submitted that, it is a cardinal principle of law that, whoever asserts has the duty to prove. The case of Gbaje v. Gbaje (1996) 39 LRCN 1109 at 1116 was cited to contend that, the Respondent asserted that the 6 plots of land the Appellant’s family sold to him is as demarcated in Exhibits B and C, and the Appellant raised the issue that the area covered by Exhibit B and C is 14 plots. That the Respondent who had the duty to prove that it is 6 plots and not 14 did not adduce evidence to prove that Exhibits B and C contain 6 plots, and that the burden did not shift on the Appellant unless he admits the claim of the Respondent that it is 6 plots. The cases of Obawole v. Williams (1996) 44 LRCN p. 2342 and Tsokwa v. Union Bank Ltd (1996) LRCN p.2199 at 2223-2224 were cited to submit that the Respondent not having produced credible evidence that prima facie established his claim, the onus could not shift on the Appellant to adduce evidence in rebuttal. That an attempt to clear the issue by calling an independent referee was disallowed by the trial court. That though the Supreme Court stated in Akpan v. Otong (1996) 44 LRCN p.2169 at 2192 that a duly admitted Survey Plan as in Exhibits B and C could be considered and relied upon by the court without the need to call a Surveyor to testify, the consideration by the court of Exhibits B and C will include a determination of the number of Plots contained therein, since the said Exhibits do not state the number of Plots. Learned counsel therefore submitted that, if the trial court had considered the contents of Exhibits B and C, it would have been discovered that they do not support the case and oral evidence of the Respondent.
On issue three, learned counsel for the Appellant relied on the case of Onibudo v. Akibu (1982) 7 SC. p.60 at 84 to submit that, the Respondent has not put before the court all that is required to be entitled to a declaratory judgment in respect of the land described in Exhibits B and C, which is also claimed by the Appellant. That the Respondent only tendered Exhibit A to show that Eyindi Family sold 6 plots of land to him, though the Appellant admitted that he was aware of the sale of 6 plots to him. That though the Respondent claimed that he bought 6 plots of land from Eyindi family, the original owners of the land and was issued with Exhibit A, he did not trace the root of title of Eyindi family; in that, he did not give evidence on how Eyindi family came to own the land. That on the other hand, the Appellant who counter-claimed for injunction gave traditional evidence of how the land devolved from Akingbade, the first Oba of Ago-Iwoye to Adeosun Eyiri, his great grandfather and he had been farming on the land before he was disturbed by the Respondent.
Learned counsel for the Appellant also relied on the case of Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) p.373 at 410 to further submit that, the payment of purchase price and delivery of possession in the presence of witnesses is sufficient to effect a valid sale of land under customary law, but that in the instant case, there was no delivery of the land in Exhibits B and C to the Respondent. That the land delivered to the Respondent as 6 plots by the Appellants is still vacant and yet to be surveyed. He further cited the case of Olukoga v. Fatune (1996) 42 LRCN 1704 at 1712-1713 to contend that the trial court ought to have given judgment to the Appellant as per his counter-claim. It was therefore submitted that, the Respondent did not prove a better title so as to entitle him to damages. We were accordingly urged to allow the appeal, set aside the judgment of the court below, and to give judgment in favour of the Appellant.
In response learned counsel for the Respondent cited the cases of Gabriel Adekunle Ogundepo & Anor v. Thomas Eniyan Olumesa (2011) 11-12 SCM (Pt. 1) p.269 at 261 to submit that, it is trite law that, he who asserts must prove. That in order to prove his case, the Respondent tendered Exhibits B and C, but the Appellant did not provide any exhibit nor did he object, when those exhibits were tendered. That the Appellant did not also put any of the features of the land being disputed in issue. He further cited the case of Sunday Sodinye Nteogwuija & Anor v. Chief Dickson Alexander Ikuru & 2 Ors (1998) 10 NWLR (Pt. 569) p.269 at 305-306 paragraphs H-A to submit that this Court has held thereon that, where a defendant wants to make the Plaintiff’s Survey Plan an issue he should be quite clear and specific on the points in controversy. Learned counsel then drew our attention to the testimony of the Respondent at page 94 lines 15-20 of the judgment, to submit that, contrary to the contention of the Appellant in paragraph 4.03 of his brief, the description of the land sold to the Respondent, though not stated in Exhibit A, the production of Exhibits B and C has put to rest the issue of description and identity of the land claimed by the Respondent.
Learned counsel further submitted that, the Appellant did not call any credible evidence to support his contention at paragraph 5 of the Amended Statement of defence. That the Appellant did not join issue with the Respondent on paragraph 19 of the 2nd Amended Statement of Claim. That in any case, in the case of Francis Adesina Ayanwale v. Olumuyiwa Olumide Odusami (2011) 11-12 SCM (Pt. 1) p.39 at 47 para. 1, the Supreme Court has held that in a claim for declaration of title to land, the starting point is the identity of the land in dispute, which must be clearly ascertained, and that the identity of the land would be in issue, if and only if, the defendant has in his pleading disputed either the area of the land or its location. The case of Ezeudu & Ors v. Obiagwu (1986) 2 NWLR (Pt. 21) p. 208 was also cited to submit that, though the Appellant contended that the Respondent has not yet surveyed the land, he did not make any plan in support of his counter-claim showing his family land sold to the Respondent and the one allegedly encroached upon.
That the Respondent is certain of the identity of the land he purchased from the Appellant’s family and has proved that beyond any iota of doubt. He relied on the case of Ukaegbu & Ors v. Nwololo (2009) 1 SCM p.90 at 118 to submit that the mere contention that the land is more than 6 plots is not sufficient denial of Exhibit B and C, as the denial was not positive.
Learned counsel for the Respondent referred to the judgment of the trial judge at page 87 paragraphs 2 and 3 of the record of appeal to submit that, the learned trial judge was right when he held that from the issues joined in the pleadings, the main issue in this case is whether the land in dispute and upon which the Respondent seeks declaration of title edged red in Exhibits B and C is the same as the six plots of land sold to him by Eyindi family. That if the Appellant had produced a counter-plan, the trial court would have compared same to properly evaluate the facts and evidence before it. That it has been held in Ireju Nwokidu & 3 Ors v. Mark Okanu & Anor (2010) 1 SCM p.126 at 148 paragraph E that, a court of law can compare plans in order to see the relationship between them. See also Latinwo v. Ajao (1973) 2 SC. p.99 at 110 and Idundun v. Okumagba (1976) 9-10 SC p.227.
The cases of Sule Anyegwu & Anor v. Aidoko Onuche (2009) 1 SCM 1 at 11 and Buhari v. INEC & Ors (2008) 12 SCM (Pt. 2) p.234 at 334-336 were cited to submit that a trial court is in a better position to evaluate the demeanour of witnesses. That the learned trial judge was therefore right when he held that the evidence of the Appellant is not reliable. It was further submitted that, the learned trial judge was also right when he held that, the mere fact that the boundaries of the land sold to the Respondent are not stated on the purchase receipt is of no moment because both the Respondent and the Appellant agreed that the land sold to the Appellant was shown to him by members of the Appellant’s family after the sale. That the learned trial judge had found that:
(a) Although the Appellant and his witnesses claimed that the land in dispute is not the land sold to the Respondent, they failed to prove the identity of the land they alleged that their family sold to the Respondent;
(b) The evidence of DW2 that the land in dispute is not the land sold to the Respondent is an afterthought having earlier testified that it was the said land sold to the Respondent that the Appellant inherited from his father;
(c) The evidence of the Appellant that the land in dispute was given to him by his father and not that he inherited the land is at variance with his earlier testimony and averments in his pleadings that he became bonafide owner of the disputed land through inheritance from his father.
It was further contended by learned counsel for the Respondent that, the trial court rightly held that both the Appellant and the Respondent carried equal burden of proof since the Appellant also sought an order of perpetual injunction restraining the Respondent from claiming any area of land owned by the Adeosun/Eyindi family. He then relied on the case of Momodu Olubodun & Ors v. Oba Adeyemi Lawal (2008) 10 SCM 175 at 191, to submit that the contention of the Appellant that the trial court could have taken judicial notice of modern standard plots is misconceived, and that the learned trial judge was right when he held that the Appellant who contended that the disputed land is about 14’bd plots, did not plead that fact and also did not tell the court the measurement or land area of a plot of land. Learned counsel for the Appellant therefore submitted that the learned trial judge properly weighed the evidence before granting the declaratory reliefs vesting title to the parcels of land in Exhibits B and C in favour of the Respondent.
On issue two, learned counsel cited the cases of Gabriel Adekunle Ogundepo & Anor v. Thomas Eniyan Olumesan (supra) at p.261 and Section 136 (sic: 131),of the Evidence Act, 2011 to submit that, it was the Respondent who asserted that he was entitled to the land in dispute vide the exhibits tendered by him. He also cited the cases of Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) p. 72; Osawaru v. Ezeiruka (1978) 6-7 SC p.135 at 145; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) p.339 at 352 and Agbakoba v. INEC & Ors (2008) 12 SCM (Pt. 2) p.159 at 334-336, to submit that the law is that he who asserts must prove, and therefore the Respondent who asserted had to prove his assertion on preponderance of evidence. That the Respondent has proved his assertion by credible evidence before the trial court. It was therefore submitted by learned counsel that the contention of the Appellant that it is the onus of the Respondent to prove that he bought six plots from Adeosun/Eyindi family cannot be correct, as the Respondent has tendered Exhibits A, B and C to show that he bought six plots of land. That as the Appellant contends that the plots of land shown on Exhibit B and C is more than six plots, the burden had shifted on him to prove that what the Adeosun/Eyindi family sold to the Respondent is more than six plots; and which he could do by providing credible evidence to show the identity of the land sold to the Respondent and the identity of the land which the Respondent allegedly occupies contrary to the one sold to him by the Adeosun/Eyindi family.
It was further submitted by learned counsel for the Respondent that, the Supreme Court has held in Ressel L.Y. Dakolo & Ors v. Gregory Rewane-Dakolo & Ors (2011) 7 SCM 54 at 68 paras. B-C that, where the identity of land in a matter of declaration of title to land is in dispute, same can be resolved by each side producing Survey Plans supported by credible evidence to satisfy the court on the identity of the property in dispute. That the arithmetical calculations done by the Appellant at paragraph 4.16 of the Appellant’s Brief have not been pleaded and therefore go to no issue. He cited the cases of Dagaci of Dere & 9 Ors v. Degaci of Ebwa & Ors (2001) 7 NWLR (Pt. 712) p. 365 at 406-407; Olofin v. Agu (1992) 3 NWLR (Pt. 229) p.350; Ekpenyong v. Nyong (1975) 2 SC 71; Ochonma v. Unosi (1965) NMLR p.321 and Nwanya (1987) 3 NWLR (Pt. 62) p.154 to also submit that, the court will not grant what has not been claimed or pleaded. We were urged to hold that, based on the evidence before the lower court, the Respondent had discharged the onus on him when he tendered exhibits B and C.
On issue three, learned counsel for the Respondent submitted that, in a claim for declaration of title, the Plaintiff succeeds on the strength of his case and not on the weakness of the defendants. That, the Respondent has done all that is required of him by law to prove his case and the lower court rightly exercised its discretion in his favour. He went on to submit that, it is a contradiction in terms for the Appellant to contend that he conceded that his family sold 6 plots to the Respondent and at the same time say that there was no averment in the Respondent’s pleading to show that the Respondent did not trace the root of title of his grantor. He referred to the testimony of the Respondent at page 30 of the record of appeal wherein the Respondent traced the purchase of the land to the Appellant’s father and tendered Exhibit A issued him by the Appellant’s family.
On the contention of the Appellant that there was no delivery of the land in Exhibits B and C to the Respondent, he referred to the testimony of the Respondent at page 29 of the records, wherein he stated that before he paid the money, the Appellant’s family sent a Surveyor to inspect the land, and that after he paid the purchase price, he was showed the land and put into possession. That this piece of evidence was not impugned during cross-examination. He also referred to the testimony of DW2 at page 70 of the records which support that of the Respondent that, he was put in possession of the land sold to him. It was therefore submitted that, it is not correct to say that the Respondent was not put in possession of the land he purchased from the Appellant’s family or that there was no delivery to him of the land he purchased. That according to DW2, the Appellant was present when the Respondent was put in possession.
On the Appellant’s counter-claim, learned counsel for the Respondent submitted that, the learned trial judge correctly held that the concept of forfeiture is inapplicable to this case, as the Respondent was never a tenant of the Appellant’s family. On the whole therefore, we were urged to dismiss the appeal and to affirm the judgment of the court below.
Now, Section 131 (1) of the Evidence Act provides that whoever desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts much prove that those facts exist. Simply put, the burden of proof lies on the person who asserts the affirmative of an issue. Generally therefore, it behoves on the person who would fail if no evidence at all were given in the matter from either side to lead credible evidence to prove his case. That is what is known as the general burden of proof, and in most cases it rests on the plaintiff who has instituted the action seeking that the court judges and determines in his favour some legal right (or liability) which he claims. In that sense therefore that burden, the general burden rests throughout on the plaintiff who would fail to get the judgment of the court, if no evidence is led from either side. See also Section 132 of the Evidence Act, 2011.
In civil cases however, the burden of proof is determined by the state of the pleadings. Accordingly, the court only needs to look at the averments in the statement of claim and statement of defence, to see where the burden of proof of a particular issue in the matter lies. In that case, the burden of proof may oscillate from the plaintiff to the defendant and vice-versa as the hearing in the matter progresses. Thus in the case of Egharevba v. Osagie (2000) 18 NWLR (Pt. 1173) p. 299, Tobi, JSC held that:
“The burden of first proving the 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. See Section 137 (1) of the Evidence Act. If such party, adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively, until all the issues in the pleadings have been dealt with. The burden of first proving a fact is usually on the Plaintiff who brought the action, though not invariably so. There are times when the burden is on the defendant, depending on the state of the pleadings. Therefore it is valid law that the state of the pleadings materially determines the party who has the burden of proof.”
Similarly, Nnaemeka-Agu, JSC in the case of Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) p. 410 had this to say:-
“In civil cases, while the general burden of proof in the sense of establishing his case lies on the Plaintiff, such burden is not as static as in criminal case. Not only will there be instances in which on the state of the pleadings the burden of proof lies on the defendant but also, as the case progresses, it may become the duty of the defendant to call evidence in proof or rebuttal of some particular point which may arise in the case.”
In both instances the court will weigh the evidence so adduced by both parties in an imaginary scale, so as to see on which side the totality of evidence produced at the trial has tilted the scale. The side that outweighs the other, no matter how slight will carry the day, and therefore judgment will be given for that side. In summary, in civil cases, judgment will be given in favour of the party that tilts the scale on its side. That is why it is said that in civil cases, the standard of proof is upon preponderance of evidence or balance of probabilities. See also Jiaza v. Bamgbose (1999) 7 NWLR (Pt. 610) p.182; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) p.412 and Chabasaya v. Anwasi (2010) 10 NWLR (Pt. 1201) p.163.
Now, the main or principal claim of the Respondent who was plaintiff at the court below is for declaration of title to that parcel of land at Eyindi along Ijebu/Ijesha Road, Ago-Iwoye. It is the law that in an action where a plaintiff seeks a declaration of his title to a parcel of land, he has the duty to lead cogent and credible evidence which will satisfy the court as to make the declaratory order in his favour. To succeed in doing that, the Plaintiff must rely on the strength of the evidence, both oral and documentary adduced by him in proof of his claim. In other words, in his effort to satisfy the court that he is entitled to the declaration of title sought, he has to rely on the strength of his own case. The weakness of the defendant’s case will only help him if it supports his case, in which case, he can rely on it to strengthen his claim. Accordingly, even where admissions are made by the defendant, they will not aid the Plaintiff’s case, save were such admissions support the case of the Plaintiff. See; Gankon v. Ugochukwu Chem. Ind. Ltd. (1993) 6 NWLR (Pt. 297) p.55; Onunuju v. A.G. Anambra State (2009) 10 NWLR (Pt. 1148) p 182; Kodilinye v. Odu WACA p.336 at 337 per Webbher, C.J; Chukwu v. Amadi (2009) 3 NWLR (Pt. 1127) p.56; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) p.81 and Iroagbara v. Ufomadu (2009) 11 NWLR (Pt. 1153) p.587. See also Shasi v. Smith (2009) 18 NWLR (Pt. 1173) p.330 and Ekpemupolo v. Edremodo (2009) 8 NWLR (Pt. 1142) p.166
I have carefully read the 2nd Amended Statement of Claim and the evidence adduced by the Respondent in proof thereof as contained in the record of appeal. The relevant case of the Respondent is as pleaded in paragraphs 2, 3, 4, 5, 6 and 7 of the 2nd Amended Statement of Claim. See page 38 of the record of appeal. Therein the Respondent had pleaded as follows:
“2. The claimant owns and possesses the parcel of land situate, lying and being along Ijebu/Ijesha Road, Ago-Iwoye, being six plots which Eyindi family sold/granted to the claimant on payment of customary fee of N600.00. The Receipt evidencing payment dated 18th May, 1976 will be tendered.
3. The said payment receipt dated 18th May 1976 was signed by the representatives of Eyindi family being Alhaji Olufowobi, the Secretary of the family, Muritala Sosanwo (deceased) and the Olori Ebi, George Odugbose (the father of the defendant).
4. After the purchase, the claimant was led into possession by the representatives of the family wherein the said parcel of land was handed over to the claimant in the presence of witnesses who demarcated the said parcel of land by erecting artificial pillars on the four corners of the land.
5. The Claimant on assumption of possession and after payment of the customary fee cleared the land and planted crops on the said parcel of land without any disturbance.
6. The Claimant had earlier bought two plots of land but later purchased about four plots of land as a result of which the joint receipt for six plots approximately was issued to the claimant.
7. The claimant avers that he bought the first two plots of land from Saliu Olufowobi while the representatives of Eyindi Family (Alhaji Olufowobi, Muritala Sosanwo and George Odugbose) sold the other four plots to the Claimant.”
The Respondent further pleaded at paragraphs 16 and 17 of the 2nd Amended Statement of Claim as follows:
“16. The first set of two plots of land were separated from the second set of four plots of land by a plot of land now under construction.
17. Consequently, the Claimant caused the two sets of land purchased by him to be surveyed separately as shown by Survey Plans (A) YSG 478 dated 06/0793 and (B) YSG 478 also dated 06/07/93 all prepared and signed by YEMI OKULAJA a licensed Surveyor.”
At the trial the Respondent who testified as the PW1 stated at page 29 of the record of appeal as follows:
“I know Eyindi family of Ago Iwoye. I bought land from the said family. The land is situate along Ijesha Ijebu road in Ago Iwoye. The land belonged to Eyindi family before I purchased it. I bought the land on 18/5/1976. The family had its own land and principal members. Pa. George Odugbose was the head of the family at the material time. Muri Sosanwo, now deceased was secretary of the family. He was also known as Muritala Sosanwo. The treasurer of the family was Saliu Olufowobi. George Odugbose is dead. George Odugbose begat Tunde Odugbose, the defendant in this case. I bought six plots of land from Eyindi family in 1976. Two plots were together while the other four plots were together. I paid N600.00 for the land. Before I paid the money the family had sent a surveyor to inspect the land who reported back that it contained six plots. When I now paid the purchase price, I was taken to the land. They showed the land to me and put me in possession. I was also issued with a receipt.”
He went on to testify at page 30 of the record of appeal as follows:-
“After the land was handed over to me, I marked the boundaries of the land as shown to me. At each corner piece, I erected concrete blocks.”
The Appellant’s defence is as contained at paragraphs 3, 4, 5, 6, 7, 8 and 9 of the Amended Statement of Defence filed on the 3/3/2003. Therein the Appellant pleaded that:
3. The Defendant denies the Plaintiff’s statement of claim and his subsequent Claim of ownership of the disputed property.
4. The Defendant denies paragraph 2 of the Statement of Claim and avers that the land in dispute is bonafide property of the Defendant through inheritance from his late father; George Odugbose who exercised various acts of ownership unchallenged for a very long time ago before the birth of the Defendant.
5. The Defendant avers that though six plots of land was sold to the Plaintiff, the Plaintiff left the six plots of land sold to him and shown to him but now lay claims to a larger area of land which forms part of the land allotted to Defendant’s father by Adeosun Eyiri family.
6. The Defendant further averse (sic) that Alhaji Y. S. Bakare a member of Adeosun Eyiri family whose duty and function is to locate newly acquired portions of land to grantees was the person who showed the allocated six plots of land to the Plaintiff.
7. The Defendant avers that all the representatives of Adeosun/Eyiri family most especially Alhaji Olufowobi and Alhaji Y. S. Bakare gave evidence to the Police authorities in Ago-Iwoye that the Plaintiff deceitfully and deliberately enlarged his plots of land to about fourteen and half plots of land instead of the six plots of land allocated to him by Adeosun/Eyiri family through Alhaji Y. S. Bakare thereby taking advantage of the sale of six plots to encroach on family land.
8. The Defendant avers that the Plaintiff deceitfully and deliberately encroached on the Defendant’s land by surveying a different plots (sic) of land and more plots of land totally outside the six plots of land allocated to him.
9. The Defendant avers that the Plaintiff was challenged by Adeosun/Eyiri family on the deceitful and deliberate encroachment on their land, but he pretended as if he did not know.”
The Appellant also testified at the trial as the DW1. His testimony which began at page 66 of the record of appeal is to the effect that:-
“I know the land in dispute. The land in the Survey Plan tendered as Exhibit B is not the land I sold to the Plaintiff. The land I sold to the Plaintiff is situate along Ago-Iwoye/Ijesha Road, not far from the permanent site of Olabisi Onabanjo University. The land is still there vacant. It was my father that sold the six plots of land to him. Exhibit A now shown to me was the receipt issued to the Plaintiff by my family for sale. The land covered, by Exhibit B is owned by Adeife. It was given to him by my family. I am the owner of the land in Exhibit C.
The six plots of land were shown to the Plaintiff after the sale by Alhaji Y. S. Bakare – now late and I am the son of the Head of the family. Alhaji Y. S. Bakare died last year.”
The Appellant testified further to the effect that:-
“The Plaintiff has not surveyed the land sold to him. He decided to take over land not sold to him. He was called and asked to vacate the land and also to come and collect the money paid by him to the family for the six plots of land sold to him because of his fraudulent act.”
Under cross-examination the Appellant (DW4) admitted that his family sold six plots of land to the Respondent. He also stated that, it is true that the land sold to the Respondent is along Oju Eleta- Ijesha Ijebu Road. The Appellant’s witness who testified as the DW2 stated, inter alia, as follows:-
“I know the Plaintiff. It was when he was given a piece of land by George Odugbose that I came to know him. He purchased the said parcel of land from George Odugbose. It was Y. S. Bakare and the defendant who put him in possession of the land sold to him by George Odugbose. He was shown the said land by the two people I mentioned. The land comprised of six plots of land. I know the said six plots of land formed part of the land inherited by the Defendant from his father…. It was the land on which the defendant was farming upon that was sold to the Plaintiff. The land sold to the Plaintiff is situate along Ijesha Road, Ago-Iwoye.”
The DW2 reiterated under cross-examination that the Eyiri family of the Appellant sold a parcel of land to the Plaintiff (Respondent) and that the said parcel of land consists of six plots. That the six plots of land sold to the Respondent are located or situated at Ijesha Road, Ago-Iwoye.
From the pleadings and evidence led as reproduced above, it is clear to me that it is not in dispute that the Appellant’s family sold six plots of land to the Respondent in 1976. The sale is evidenced by a receipt issued to the Respondent and which receipt is in evidence as Exhibit A. It is agreed by both parties that the six plots are divided into four and two plots respectively. The Appellant (DW1) and DW2 also testified that the Respondent was put into possession of the land by late Alhaji Y. S. Bakare and the Appellant. The Appellant himself testified that he accompanied Alhaji Bakare to show the Respondent the land sold to him by the family.
Though the Appellant sought to argue in this appeal that the Respondent was not put in possession of the land sold to him, I am in agreement with the learned trial Judge when he held at page 101 lines 2-12 as follows:
“It is totally misconceived to argue that the Plaintiff was not put in possession of the said land sold to him when it is not in dispute that the Defendant’s family collected the purchase price from him and thereafter showed him the boundaries of the said land. Although Exhibit A was written in Yoruba language but both parties agreed that it was issued to the Plaintiff by the Defendant’s family for the 6 plots of land sold to him. It is glaring from the totality of the evidence before the court that it was the land sold to the Plaintiff that the Defendant pleaded that he inherited from his father. If indeed the land in dispute was given to the Defendant by his father as later claimed in his evidence, which fact is not conceded, having found his evidence on the issue as being unreliable. I hold that the Defendant acquired no title in the land since it has already been sold by his family to the Plaintiff.”
I also agree with the learned trial Judge that, having been proved that the Respondent paid the purchase price and was given possession of the land in the presence of witnesses, a valid sale of land under native law and custom or customary law had been consummated. It is therefore my view that the evidence on record has clearly established that the Appellant’s family sold six plots of land to the Respondent, and which land is situate along Ijebu/Ijesha Road, Ago-Iwoye.
Learned Counsel for the Appellant had contended that, the Respondent had a duty to lead evidence as to the root of title of the Eyindi family. In other words, that the Respondent did not give evidence of how Eyindi family came to own the land. It should be noted that evidence of root of title of the Eyindi family was never an issue before the trial court. The Respondent’s claim is predicated on a sale by the Eyindi family to him, and it was never alleged or contended at the trial that the said family had no title to the land they sold to the Respondent. The case of Onibudo v. Akibu cited by the Appellant is not applicable to the case because, the Appellants had clearly pleaded their title to the land they sold to the Respondent. The Appellant had pleaded at paragraph 10(a) of his Amended Statement of Defence and Counter-Claim that, Adeosun Eyiri, the forefather of the Appellant, who is the son of Akingbade the 1st Ebumawe, was the original owner of all Adeosun Eyiri land. At the trial and I believe at the sale transaction, they had presented clearly to the Respondent that the land belong to the Adeosun Eyiri or Eyindi famlly. The Appellant himself gave evidence of that fact when he stated at page 66 of the record that:
“The original owner of the six plots of land sold to the Plaintiff and the plots of land covered by Exhibit B and C was Adeosun Eyiri. The said Adeosun Eyiri inherited from Akingbade who was his father. The said Akingbade was the first Oba (King) of Ago Iwoye. My father was a grandson of Adeosun Eyiri. The name of my father is George Odugbose. He is the head of Adeosun Eyiri family.”
The DW2, Adebayo Eyiri, a member of the Appellant’s family also testified to the effect that the land in dispute originally belonged to Akingbade and that it was his son Eyiri who inherited the land. That the said Eyiri is his grandfather and also that of the Appellant. With these glaring pieces of evidence, I am of the view that if need be, the Respondent was entitled to rely on same as proof of title of his vendors. It is therefore my opinion that it amounts to dishonesty on the part of the Appellant who has admitted title to the land sold to the Respondent to insist that Respondent traces his (Appellant’s family) root of title. I therefore hold that the root of title of the Appellant’s family to the land they sold to the Respondent is not in dispute.
I have found from the evidence on record that, the only issue in contention between the parties is on the identity of the land in dispute. A careful perusal of the arguments of counsel would show that, that is the issue that occupied the three issues raised in this appeal. As has been established above, it is not disputed that the Appellant’s family sold six plots of land to the Respondent. However, the Appellant contends that the six plots claimed by the Respondent vide Exhibits B and C are not the plots of land sold to the Respondent. The law is that, where the identity of the land subject of a claim for a declaration of title is in dispute, the claimant has a bounden duty to lead credible evidence which will establish the identity of the land he claims. This he can do by one of two ways. He can do that by leading credible oral evidence which describes with degree of accuracy such that will guide a surveyor called upon to produce a plan of the land in dispute. Secondly, he can file a survey plan showing the extent of the land claimed and reflecting all the necessary features on the land with clear boundaries. See Awote v. Owodunni (No. 1) (1987) 2 NWLR (Pt. 57) p.366; Ogun v. Akinyele (2004) 18 NWLR (Pt. 905) p.362; Olisa v. Asojo (2002) 1 NWLR (Pt. 747) p.13 and Mrs. Odedele & Anor v. Alhaji Fasilat Akande (2002) 9 – 10 SC p.124.
This is so because, it is now settled law that, the first duty of a Plaintiff or a Counter Claimant in a claim for declaration of title to land, is to prove with certainty, the identity of the land to which his claim relates. The declaration can therefore only be granted if the extent and/or boundaries of the land claimed are ascertained. See Fatuade v. Onwoamanam (1990) 3 S.C. (Pt. 11) p.138; Nwokorobia v. Nwogu (2009) 10 NWLR (Pt. 1150) p.553; Ezeakabekwe v. Emenike (1998) 11 NWLR (Pt. 716) p.653; Auta v. Ibe (2003) 7 SC p.129 and Odofin v. Oni (2001) 3 NWLR (Pt. 701) p.488.
In the instant case, the Respondent pleaded as follows:
“3. The claimant owns and possesses the parcel of land situate, lying and being along Ijebu/Ijesha Road, Ago-Iwoye, being six plots which Eyindi family sold/granted to the Claimant on payment of customary fee of N600.00. The receipt evidencing payment dated 18th May, 1976 will be tendered.
6. The Claimant had earlier bought two plots of land but later purchased about four plots of land as a result of which the joint receipt for six plots approximately was issued to the Claimant.
16. The first set of two plots of land were separated from the second set of four plots of land by a plot of land now under construction.
17. Consequently, the Claimant caused the two sets of land purchased by him to be surveyed separately as shown by Survey Plan (A) YSG 478 dated 06/07/93 and (B) YSG 478 also dated 06/07/93 all prepared and signed by YEMI OKULAJA, a licensed Surveyor.”
From the above state of the pleadings it is obvious that the Respondent had bought two separate and distinct parcels of land. One comprised of two plots, while the other consisted of four plots. By paragraph seven (7) of the 2nd Amended Statement of Claim; the Respondent averred that the first parcel of two plots was bought from Saliu Olufowobi. From the evidence on record the said Saliu Olufowobi was a member of the Appellant’s family. The record shows that he was the treasurer of the family. The evidence on record also reveals that when a problem arose between the Respondent and the Appellant’s family, a joint receipt was issued for the two parcels of land sold to the Respondents. It is that receipt that is now in evidence as Exhibit A.
As I pointed out earlier, at the trial, the Respondent tendered two Survey Plans of the two separate parcels of land and both were admitted in evidence as Exhibits B and C. It seems to me from the pleadings of the parties and the evidence led at the trial that, there is no serious dispute in respect of the parcel of land captured in Exhibit B. I say so because, the Respondent himself pleaded that he bought two separate parcels of land and this fact was never denied by the Appellant. I however note that, though both parties pleaded and led evidence to the effect that the land in dispute is situate along Ijesha/Ijebu Road in Ago-Iwoye, Exhibit B shows that the parcel of land depicted therein is situate along Oju Olota Road, Ago Iwoye. Even from the building (Plan Exh. D) it is obvious that Exhibit B is some distance away from Exhibit C. However, as none of the parties has made an issue out of what I have pointed out above, I will not comment further on it. What should be stated, as revealed from the pleadings and evidence led is that Exhibit B is distinct from Exhibit C and that both parcels of land were lumped together for the purpose of issuance of receipt only. See paragraphs 10, 11, 17, 14 and 15 of the 2nd Amended Statement of Claim. It is therefore my view that, from the pleadings and evidence led, the bone of contention between the parties is on Exhibit C.
It is clear to me therefore that Exhibits B and C were tendered by the Respondent in proof of the identity of the land in dispute. I have pointed out that it is Exhibit C which, from the evidence led, is the bone of the dispute. The Respondent pleaded and led evidence to the effect that Exhibit B consists of two plots while Exhibit C is comprised of four (4) plots. The Appellant however contends that, though his family sold six plots of land to the Respondent, the Respondent has abandoned the six plots sold to him and on which he was put in possession, and has now deliberately and deceitfully encroached upon the Appellant’s family land by surveying a different plot of land. That the Respondent has now surveyed and included more plots of land on his survey plan than the 6 plots sold to him. According to the Appellant, the Respondent enlarged the number of plots sold to him from six to fourteen.
As I stated earlier, the first duty of a claimant is to prove with certainty the extent or boundaries and with features of the land he claims. I also stated that one of the ways of proving the identity of the land is by filing and/or tendering a survey Plan to that effect. All that the law requires is that the plan tendered must accurately and with particularity and precision; show the exact features and boundaries of the land claimed. See Olusanmi v. Oshasono (1992) 6 SCNJ p.282; Onwuka & Ors. v. Ediala & Anor (1989) 1 SC (Pt. 11) p.1; Adoruba v. Odiese (1990) 1 S.C. p.219, Ekpemupolo & Ors. v. Edremoda (supra) and Nwabuokua & Ors. v. Onwordi & Ors. (2006) 5 SC (Pt. 111) p.103. In the instant case, the Respondent tendered two separate Survey Plans of the two separate parcels of land bought from the Appellant’s family. They are in evidence as Exhibits B and C. Exhibit B covers the parcel of land with two plots, while Exhibit C covers the parcel with four plots. The Appellant now contends that the learned trial Judge failed to properly evaluate the evidence before him as to the identity of the land in dispute.
It is the law that, the duty of evaluating or assessing the evidence led at the trial is within the forte of the trial court. It is his primary responsibility to do the assessment and to ascribe probative value to both oral and documentary evidence tendered and validly admitted by him. An appellate court such as this would be very slow to interfere or disturb the evaluation of evidence made by the trial court. Generally, an appellate court will only intervene where it is satisfied that the trial court did not properly evaluate the evidence, or that it made a wrong approach to the evidence before it; or that the evaluation of the evidence was not the product of the advantage the trial court is placed of seeing or listening to the witnesses who testified before him. Where the evidence to be evaluated is documentary and being the best evidence, the appellate court is in as good position as a trial court to evaluate same. The accepted legal position therefore is that, this court should not disturb the findings of a trial court except where on the evidence on record, they are perverse or have otherwise occasioned a miscarriage of justice. See Oshe v. Okin Biscuits Ltd (2010) 11 NWLR (Pt. 1206) p.482; Mafimisebi v. Ehuna (2007) 2 NWLR (Pt. 1018) p.385; Teriba v. Adeyemo (2010) 13 NWLR (Pt. 1211) p.242; Agbakoba v. INEC (2008) 8 NWLR (Pt. 1119) p.489; Obineche v. Akusobi (2010) 12 NWLR (Pt. 1208) p.383 and Fagbero v. Arobadi (2006) 7 NWLR (Pt. 978) p.172.
Now, in evaluating the evidence led by the parties on the issue of identity of the land, I wish to quote in extenso, the findings of the learned trial Judge: At the last paragraph of page 99 of the record of appeal the learned trial Judge held as follows:
“In proving his title to the said land, the Plaintiff however testified that he bought the disputed land from the defendant’s family. He tendered the purchase receipt issued to him as Exhibit A. The Plaintiff also stated under cross-examination… that it was indicated on the receipt that 6 plots of land were sold to him. He testified further that the said land was shown to him after he paid the purchase price. He stated that the defendant’s family had earlier confirmed that the said land is comprised of 6 plots of land before he paid the purchase price. He also testified that after he was handed over the land, he remarked the boundaries as shown to him and thereafter erected blocks at each corner of the land. It should be noted that the Plaintiff was not shaken under cross-examination on this evidence that he bought the disputed land from the Defendant and his witness claimed that the land in dispute is not the land sold to the Plaintiff but they failed to prove the identity of the land they alleged that their family sold to the Plaintiff. It is my view that their evidence that the said land is along Ago Iwoye/Ijebu Ijesha Road is not sufficient to rebut the evidence of the Plaintiff on this issue because the land in dispute is also situated along Ago Iwoye/Ijebu Ijesha Road. The onus is on the Defendant to prove to the satisfaction of this court the identity of the said land he claimed that his family sold to the Plaintiff if the said land is indeed different from the land covered by Exhibits B and C tendered by the Plaintiff in support of the case. That onus, in my view, has not been discharged.”
The learned trial Judge further held in the second paragraph of page 100 of the record of appeal that the evidence of the DW2 that the land in dispute is not the land sold to the Respondent is an afterthought having earlier testified that it was the said land sold to the Respondent that he inherited from his father.
I, am of the firm view that, the learned trial Judge was right in his findings and conclusions. He also properly situated the burden of proof and where it lay in the determination of the respective assertions of the parties. The Respondent who claimed for the declaration of title to the six plots of land sold to him by the Appellant’s family, and which fact of sale of six plots of land was admitted by the Appellant, had discharged the burden of proof of sale of the six plots of land to him. He had also laid before the court evidence, at least prima facie, which establishes the identity of the land sold to him. He discharged that burden when he tendered Exhibits B and C. The Appellants have not contended that the said Exhibits do not contain the features on the land or that the boundaries of the land is not correct. Their assertion is that the land sold to the Respondent is different from that shown in Exhibits B and C. They make that assertion on the ground that the Exhibits contain about fourteen (14) plots, which is more than the six plots they admitted selling to the Respondent. The law is that, the burden of proof lies on the person who asserts. This general rule is encapsulated in the maxim ei qui affirmat non ei qui negat incumbit probatio. See also Section 133(1) and (2) of the Evidence Act, 2011 and more particularly Section 133(2) which stipulates that:-
“If such party adduces evidence which ought reasonably to satisfy the jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so successively, until all the issues in the pleadings have been dealt with.”
In the instant case, the Respondent has adduced evidence which the trial court accepted without objection from the Appellant, showing the identity of the land he claimed, the burden had then shifted to the Appellant to prove that the land in dispute as contained in the Exhibits tendered by the Respondent comprised of 14 1/2 plots of land and not six plots. The Appellant who contended that the parcels of land shown by Exhibits B and C is not the six plots they sold to the Respondent had the bounden duty to produce evidence of the existence of that parcel of six plots of land which he contends is different from that depicted on Exhibits B and C. As rightly printed out by the learned trial judge, it was not enough for the Appellant to merely aver and by his bare ipse dixit contend that the land sold to the Respondent is at Ijebu/Ijesha Road, Ago-Iwoye. After all Exhibit C is also situate along Ijebu/Ijesha in Ago-Iwoye. I therefore agree with the learned trial Judge when he held in paragraph 3 of page 100 of the record of appeal that:
“It should be noted that in contending that the disputed land is about 14’bd plots of land, the Defendant has not told the court the measurement or land area of a plot of land. There is also no fact in his pleading on this material issue. I therefore hold that the Defendant has not proved that the land in dispute is about 14’bd plots of land. His claim that the land in dispute is different from the 6 plots of land sold to the Plaintiff is therefore rejected. The mere fact that the boundaries of the said land sold to the Plaintiff are not stated on the purchase receipt is of no moment because both Plaintiff and the defendant agreed that the land sold to the Plaintiff was shown to him by members of the defendant’91s family after the sale. The plaintiff testified that he marked the boundaries of the said land as shown to him after which he erected concrete blocks at each corner of the land, which evidence I find as credible.”
I think the above finding and conclusion of the learned trial judge settles the matter. The Respondent had testified that when the land was sold to him, he paid the purchase price, the Appellant’s family surveyor inspected the land and found it to comprise of six plots of land and the Respondent was put in possession of the land by the principal members of the Appellant’s family, and in the presence of the Appellant himself. The Respondent then marked the boundaries of the six plots of land sold to him by erecting concrete blocks at each corner of the land. This piece of evidence was never contradicted nor otherwise controverted by the Appellant in cross-examination. Indeed not even a single question was put to the Respondent on these vital pieces of evidence. The Respondent had also testified that it is that parcel of land which he surveyed and tendered same in evidence as Exhibits B and C. The law is settled that evidence which is not challenged in cross-examination nor controverted by other evidence, and is not by itself incredible should be acted upon by the trial court. See Oforlette v. The State (2000) 12 NWLR (Pt. 681) p.415; Egbunike v. ACB Ltd. (1995) 2 NWLR (Pt.375) p.34; Nzeribe v. Dave Engr. Co. Ltd (1994) 8 NWLR (Pt. 361) p.124; and Omoregbe v. Lawani (1980) 3-4 SC p.108.
The learned trial judge was also right when he refused the request of the Appellant to invite the Surveyor General as a referee, so as to “unlock” the issue of number of plots of land in the plans tendered by the Respondent. It was held by the Supreme Court in the case of Awoyoolu v. Aro (2006) 4 NWLR (Pt. 971) p.481 per Mukhtar, JSC (as he then was) as follows:
“In fact, it is long established that where a party to a land dispute, had produced and tendered the Survey Plan showing the area he is claiming with certainty and ascertainable boundaries, that party need not call a surveyor to testify before the trial court can attach credibility to such Survey Plan. The plan can be tendered by consent.”
Indeed, the Respondent having tendered the Survey Plan(s) which were admitted in evidence, the learned trial judge was in a good position to evaluate its probative value. It has not been shown by the Appellant that the learned trial judge wrongly evaluated those exhibits. If the Appellant had any issue with the Survey Plans tendered, he was in a position and had the opportunity to cross-examine the Respondent on it. He never put a question to the Respondent on it, nor did he lead any evidence to contradict or controvert the Respondent’s case with respect to the Survey Plans tendered. The arguments of the Appellant at paragraph 4.16 of the Appellant’s Brief of Arguments is not supported by either the pleadings or the evidence on record. The Appellant cannot use the brief to supply evidence or facts which were neither pleaded nor adduced at the trial. Such argument is discountenanced. Furthermore, to contend that the trial court nay this court could take judicial notice of measurement of plots of land is like urging the court to take judicial notice of dealings in a cattle or even tomato market. For the court to take such judicial notice, it must be shown that the practice is settled by law.
On the whole therefore, it is my view which I do hold that, the learned trial judge was right when he preferred the evidence led by the Respondent that the land in dispute is the land sold to him by the Appellant’s family. The Respondent’s claim had been proved before the trial court, and the learned trial Judge was therefore right when he granted the reliefs sought by the Respondent. He was also right when he dismissed the Appellant’s Counter-Claim.
Having held as above, it is obvious that this appeal is unmeritorious. It is accordingly dismissed. The judgment of the Ogun State high court, Ijebu-Ode Division, delivered on the 3rd day of March, 2011 by O. Mabekoje, J in suit No. HCB/29/2001 is hereby affirmed.
I award fifty thousand Naira (N50,000:00) as cost against the Appellant.
MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother Haruna Simon Tsammani, JCA in which the decision of the Ogun State High Court delivered by the Hon. Justice O. Mabekoje was affirmed.
Against the solid case made out by the Respondent and strengthened by two survey plans in Exhibits B and C, the Appellant appeared before the trial Court bare-handed to challenge by oral evidence what has been properly documented. By that approach, the Appellant already set out on a faulty foundation. The Appellant failed to effectively controvert the evidence adduced by the Respondent who stated that it was the Appellant’s own family surveyor who inspected the land sold to the Respondent and that the principal members of the Appellant’s family put the Respondent in possession of the surveyed land in the presence of the Appellant. This evidence which is not incredible was neither controverted by any of the principal members of the Appellant’s family, nor by the production of an alternative survey plan contradicting that of the Respondent.
The learned trial Judge who saw the parties and heard their testimonies found that the Appellant failed to discharge the onus placed on him to prove the identity of the land he claimed his family sold to the Respondent which is different from what the Respondent had covered by Exhibits B and C being the survey plans tendered in support of his case. In the case of Awoyoolu v. Aro (2006) 4 NWLR (Pt. 971) pg 481, the Apex court per Mukhtar, JSC (AHTW) held that a Court can attach credibility to a survey plan tendered without calling a surveyor to testify if such a survey plan shows with certainty and ascertainable boundaries, the area in contention. In this appeal, it was the Appellant’s family surveyor who surveyed the land.
I too find no merit in this appeal which is hereby dismissed. I adopt the cost awarded and the consequential orders made in the lead Judgment.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading the draft of the judgment delivered by my learned brother Haruna Simon Tsammani, J.C.A. I agree with his reasoning and conclusion arrived at in holding that this appeal is without merit, I dismiss same. I also affirm the judgment of the trial court in Suit No. HCB/29/2001 delivered on 3rd day of March, 2011 by Mabekoje, J of the Ogun State High Court.
I abide by the order made as to costs in the leading judgment.
Appearances
Akinlolu Akiyode; Esq.For Appellant
AND
Taiwo Odumosu; Esq. with Mrs. Ireti Adelaja and Azeez Akin-Akindeinde; Esq.For Respondent
