HIGH CHIEF SUNMONU UWANGWE & ANOR v. MR. ORISAMADEGUN OSHORUNAIYE & ORS (2014)

HIGH CHIEF SUNMONU UWANGWE & ANOR v. MR. ORISAMADEGUN OSHORUNAIYE & ORS

(2014)LCN/7434(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of August, 2014

CA/B/253/09

RATIO

EVIDENCE: PROVING TITLE TO LAND; WAYS OF PROVING TITLE TO LAND

It has been consistently held by the Courts that there are five ways of proving title to land. A claimant may rely on more than one mode of proving title; if he so desires; however, one mode of proving title will suffice, if properly established to the satisfaction of the Court. The five ways of proving title to land are:-

Traditional evidence.
Production of document of title
Proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land.
Acts of long possession and enjoyment of the land.
By proof of possession of adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See Matanmi v. Dada (2013) 2 SCNJ 616 and Nruamah v. Ebuzoeme (2013) 1 SCNJ 128. per. JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROVING WITH CERTAINTY THE IDENTITY OF THE LAND IN DISPUTE

For a plaintiff to succeed in an action for declaration of title to land, the onus of proof lies on him to establish with certainty the identity of the area of land to which he lays claim. Mere mentioning of the area is not enough; the description and extent of the boundaries must be proved with exactitude. The area must be described in such a way that a surveyor can from the evidence before the trial Court produce an accurate plan of such land. However the burden of proving the identity of the land will rest on the plaintiff only where the Defendant makes it an issue in the pleadings. See Atanda V. Eliasu (2012) 12 SCNJ 173 per. JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: PROVE OF TRADITIONAL HISTORY; WHAT A PARTY RELYING ON TRADITIONAL HISTORY MUST PLEAD AND PROVE

It is the law that a party who is relying on traditional history must specifically plead and prove the following before the Court:

(a) Who founded the land.

(b) In what manner was the land founded

(c) The names and particulars of successive owners through whom he claims. See Nruamah V. Ebuzoeme (2013) 1 SCNJ 128. per. JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: EVIDENCE GIVEN IN A PREVIOUS PROCEEDING; THE WEIGHT ATTACHED TO EVIDENCE GIVEN IN A PREVIOUS PROCEEDING IN A LATER CASE

Evidence given in a previous proceeding can never be accepted as evidence by a Court trying a later case where the above section of the Evidence Act applies. The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but is of no higher value than that. “See Aminu V. Hassan (2014) 1 SCNJ 163. per. JAMES SHEHU ABIRIYI, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT WHICH IS NOT PERVERSE

It is settled law that an appellate Court will not interfere with the findings of fact by a Court once the findings are based on the evidence before the Court upon the pleadings of the parties. Therefore where a Court of trial unquestionably evaluated the evidence and appraised the facts, it is not open to the Court of Appeal to substitute its own views for those of the trial Court which are abundantly supported by the evidence. See Maya v. Oshuntokun (2011) FWLR (Pt.81) 1779 and Matanmi v. Dada (supra) at page 634. per. JAMES SHEHU ABIRIYI, J.C.A.

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOHAMMAD AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

1. HIGH CHIEF SUNMONU UWANGWE

2. CHIEF SAMUEL OLOYE (For themselves and on behalf of Ijebu -Owo Community – Appellant(s)

AND

1. MR. ORISAMADEGUN OSHORUNAIYE

2. THE ESTATE OF CHIEF MICHAEL ADEKUNLE AJASIN (DECEASED)

3. DAVID ADETOLA (For and on behalf of Asagho family)

4. OWO LOCAL GOVERNMENT

5. MR. DEJI ALADENIYI (For himself and on behalf of Aladeniyi family) – Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Ondo State, Owo Division dismissing the claim of the appellants who were the plaintiffs in that Court. The respondents were the defendants.

The claim of the appellants at the lower Court against the respondents was for the following:

“(a) A Declaration that the Plaintiffs’ Community is entitled to the Right of Occupancy for all that piece or parcel of land starting on the WEST WESTERN SIDE from Owo central Mosque down to Oshogboye moat running north wards along old Owo/Ikare road up to Uwese Stream/River AND on the NORTHERN SIDE from Uwese Stream running eastwards up to Alaaye farm road, AND on the EASTERN SIDE starting from intersection of Alaaye farm road and Uwese Stream/river downwards to old Owo/Benin road. And on the Southern side the old Owo/Benin Road.

(b) A declaration that the purported sale and or alienation of this afore stated piece or parcel of land or parts thereof by each of the 1st to 6th Defendants to different persons without the knowledge, consent or authority of the Plaintiffs’ Community is null and void and of no effect whatsoever.

(d) Perpetual injunction restraining each of the Defendants by themselves, their assigns, privies, agents or whatsoever acts through them from further trespassing, alienating or further alienating, dealing, occupying using, exploiting and going into the land property of Ijebu-Owo Community.”

The facts of the case include the following: The land in dispute according to the appellants became that of their community by partition when Owo kingdom was divided into two parts by Adedipe who gave Oludipe his Brother one part in appreciation for the brother’s assistance in his becoming Olowo of Owo. The appellants, the Ijebu Community of Ojomo has over the years exercised acts of ownership over the land. For example it granted land to the Ministry of Agricultural Resources Extension Service Division. It also granted land to the Colonial Government for Ifon and Owo reserves. It granted land to the 2nd respondent for building of a school. But after the takeover of the school by the Federal Government, the 2nd respondent started selling, occupying and using a vast area of the land outside the school land granted him by the Ijebu-Owo Community in 1962. The appellants’ community also granted land to the Church Missionary Society now Anglican Communion where it built two schools in 1942 and 1948. The 3rd Respondent has occupied part of the appellant’s land illegally and sold parts of it to several people.

The 1st respondent in defence stated that he was given the land by the Olowo in 1876. The appellants have no land in the area in dispute. No land outside Owo was shared to Oludipe or Ijebu-Owo community. Ijebu-Owo quarter and people are Owo people who live on Owo Community Land. No crown was shared to Ojomo. The Appellants only recently started separatist ideas.

The 2nd Respondent denied that he begged for land from the Ijebu-Owo Community.

The 2nd and 3rd Respondents denied that there was a separate piece of land belonging to Ijebu-Owo people. Rather all land within Owo Kingdom Ijebu-Owo inclusive remains Owo Communal Land and the land in dispute is part of it. That Owo Kingdom was not partitioned. That individuals and corporations in need of land in Owo normally, first apply to the Olowo-in-Council. The land granted to the Anglican Communion was conveyed by the then Olowo Oba Olagbegi.

The 2nd respondent denied selling parcels of land to anybody. The parcel of land on which Owo High School was built and pieces of land granted by the Late Chief Ajasin to indigenes of Owo were within the area allotted by Oba Olagbegi II on the intervention of youths of Owo.

The 2nd and 3rd Respondents denied the boundaries of land specified by the appellants.

The 5th Respondent on his part stated that their land was acquired in 1969 from the then Olowo of Owo. According to the 5th Respondent all land in Owo Kingdom including Ijebu-Owo remains communal land held in trust by the Olowo-in-council and the land in dispute is part of it. 5th Respondent denied that Owo Kingdom was ever partitioned. At the time the Olowo of Owo granted the land to the 5th respondent’s father in 1969 Ojomo chieftaincy title had been abolished. Therefore nobody could convey land to the father of the 5th Respondent apart from the Olowo of Owo. The grant to the Anglican Communion 5th respondent said was by the Olowo of Owo.

The Lower Court heard evidence and admitted documents tendered at the trial and in a reserved judgment dismissed the claim of the appellants. It is against this decision that the appellants have appealed to this Court upon fifteen (15) grounds from which the following nine issues were formulated:

“Whether having regard to the Statement of Defence of the Respondents the trial Court is right in making the identity of the land in dispute an issue.

Whether it is necessary in the circumstances of this case to plead and lead evidence in proof of who and how Owo Kingdom was founded and the devolution of the land of the Kingdom to successive Olowo and its eventual partitioning by Olowo Adedipe to Ojomo Oludipe and his successors right to the incumbent Ojomo.

(Ground 3)

Whether the Appellants sufficiently plead and discharge the burden of proof of partitioning of the land of Owo kingdom by Olowo Adedipe to Ojomo Oludipe.

(Ground 4)

Whether from the totality of the evidence adduced the Appellants had discharged the burden of proof in establishing their ownership of the land in dispute as that of Ijebu-Owo.

(Ground 5)

Whether the trial court properly evaluated all the documentary evidence placed before the court in arriving at its perverse findings that the land in dispute is still part of Owo with Olowo as the overlord.

(Grounds 6, 7, 8, 11 & 14)

Whether it was proper for the trial court to raise issue of Olowo and Ojomo chieftaincies in a matter in which the parties have only submitted and placed before the court issue of ownership of land.

(Ground 9)

Whether the Appellants’ suit is statute barred.

(Ground 10)

Whether the exercise of ownership and title over the land in dispute in 1962 by the Appellants was affected by or had any bearing with the abolition of Ojomo Chieftaincy title.

(Ground 12)

Whether the refusal of the learned trial Judge to grant an order of perpetual injunction against the Respondents can be justified in the light of the consent judgment Exhibit J and other evidence adduced.”

(Ground 13)

The 1st respondent presented the following issues for determination:

Whether having regard to the state of the pleadings and evidence adduced by parties the lower (suo moto) made the identity of the land in dispute an issue as canvassed by the Appellants

Whether from the totality of the evidence adduced, the Appellants have discharged the burden of proof in establishing the identity, partitioning and ownership of the land in dispute.

Whether the trial court properly evaluated all the documentary pleadings and evidence of all parties vis-a-vis the pleadings and the documentary evidence adduced by the parties placed before the court in arriving at its findings.

Whether the issue of ownership of land can be divorced from the issue of Olowo and Ojomo chieftaincies when the Appellants copiously led traditional and documentary evidence to show how Owo kingdom was partitioned by the two brothers and how the crown and all the other paraphernalia, of office were equally,(?) Shared between the two.

Whether the Appellants’ suit is statute barred.

Whether the abolition of Ojomo Chieftaincy in 1953 by the government of Western Region had any affect on the grant of land by the successors in-title of Olowo of Owo over the land in Ijebu-Owo after the abolition.”

The 2nd, 3rd and 5th Respondent submitted the following issues for determination:

Whether having regard to the state of the pleadings and evidence adduced by the parties the Lower Court (suo moto) (sic) made the IDENTITY of the land in dispute an issue as canvassed by the Appellants.

Whether from the totality of the evidence adduced, the Appellants have discharged the burden of proof in establishing the identity, partitioning and ownership of the land in dispute.

Whether the Trial Court properly evaluated all the documentary the pleadings and evidence of all the parties vis-a-vis the pleadings and the documentary evidence adduced by the parties placed before the Court in arriving at its findings.

Whether the issue of Ownership of land can be divorced from the issue of Olowo and Ojomo Chieftaincies when the Appellants copiously led traditional and documentary evidence to show how Owo Kingdom was partitioned by the two brothers and how the crown and all the other paraphernalia of office were equally shared between the two.

Whether the Appellants suit is statute barred.

Whether the abolition of Ojomo Chieftaincy in 1953 by the Government of Western Region had any effect on the grant of land by the successors-in-title of Olowo of Owo over the land in Ijebu-Owo after the abolition.

Whether the Learned Trial Judge was right in refusing a perpetual injunction against the Respondents having taking into consideration the pleadings, evidence adduced and documentary evidence before him,”

I have taken a critical look at the issues presented by Learned Counsel for all the parties and I think the proliferation of issues for determination in the appeal is unnecessary. In my view the only issues that call for determination are as follows:

1. Whether the action is statute barred,

2. Whether the appellants proved their claim to entitle them to judgment in their favour

On issue 2, it was submitted by Learned Counsel for the appellants that the learned trial Judge deviated from the well established principle of law in determining whether an action is statute barred within the purview of the Limitation Law of Ondo State Cap 61 which prescribes 12 years for bringing an action for recovery of land in Ondo State by selecting only paragraph 32 in the amended statement of claim and proceeding to rely on Exhibits T and S pleaded in the statement of defence and tendered in evidence by respondents.

It was submitted that a close look at some other paragraphs such as paragraphs 8, 9, 14, 17 and 21 with the averment of traditional history in paragraphs 10-22 of the Amended Statement of claim reveal that the appellants are claiming ownership of the land in dispute by inheritance under Customary Law which renders inapplicable the Limitation Law of Ondo State. We were referred to Ovebanji V. Lawanson (2008) ALL FWLR (Pt.438) 243 – 244, Majekodunmi V. Ibina (2002) FWLR (pt 100) 1336 at 1362 and Agboola V. Abimbola (1969) 6 NSSC 263. It was erroneous; it was submitted, for the Lower Court in the face of the averment in the Amended Statement of claim to apply the Limitation Law of Ondo State to the claim of the appellant made under native law and custom. It was submitted that the Limitation Law does not apply to this matter. It was further submitted that from paragraphs 35 and 36 of the Amended statement of claim there was recent and present trespass being committed by the respondents. We were referred to Exhibits L and M tendered by the appellants. Reliance was placed on Owei v. Ighiwi (2005) 5 NWLR (Pt. 917) 184 at 224 and Adepoiu v. Oke (1999) 3 NWLR (Pt.594) 154 at 164E.

On issue 2, it was submitted that by the statements of defence of the respondents, they did not make the identity of the land an issue contrary to the holding of the Learned Trial Judge and that the land is well known to the respondents. It was submitted that it is when the defendants raise the issue of identity of the land in issue that the question of identity of the land in dispute will arise.

It was submitted that in view of the tacit agreement of parties on the original owner of the land in dispute i.e Olowo, the appellants had no duty to plead and prove who founded the land and the successive owners to whom the land devolved up to the 19th Olowo Elewookun and from the 1st Ojomo to the present holder. It was submitted that since the appellants pleaded and proved the fact of partitioning of the land by the Olowo, it was unnecessary to plead those people that were present and consented to the partition when the land in dispute is not family land. We were referred to Adeyori V. Adeniran (2001) FWLR (Pt. 76) 689 at 708 and Maya V. Oshuntokun (2001) FWLR (Pt 81) 1777 at 1794

The fact of partitioning it was further submitted as contained in Exhibit A was not in anyway contradicted by the respondents, The mere mentioning of outskirts in Exhibit A, it was submitted, did not diminish its veracity as to the historical fact of partition.

It was submitted that the appellants had discharged the burden of proof on them. It was submitted that it was only where the title of the grantor, Eleweokun was denied that the onus would be on the appellant to plead and prove the origin of the title of the grantor. It was submitted that by a preponderance of evidence the appellants had discharged the burden of proving their title to the Ijebu-Owo community Land in dispute.

It was submitted further that the trial Court is not competent to comb and search through Exhibits tendered and use, any material found as if those materials are facts pleaded and evidence adduced thereon at the trial. Reliance was placed on Nteogwuile v. Otua (2006) 16 NWLR (Pt.738) 58 at 75 D – E. It was submitted that the learned trial Judge combed and searched through Exhibit A even though the appellants referred to paragraphs 46 and 47 at page 13 of the said Exhibit A. The trial Court relied mostly on paragraphs 48 -151 which were never pleaded nor referred to in the testimony before the Court.

Exhibit D which the trial Court discountenanced, it was submitted buttressed the claim of ownership of the land by the appellants. It was submitted that by the perverse findings and wrong evaluation of exhibits, the Appellants have suffered miscarriage of justice.

It was submitted that the trial Court formulated its case different from the evidence adduced on the pleadings before it by the parties and went ahead to base its decision upon its own formulation.

It was submitted that the abolition of Ojomo chieftaincy did not abolish Ijebu-Owo Community. In the circumstance, the holding of the trial Court that the appellants did not have power to deal with land in Ijebu-Owo quarter as claimed by them in 1962 when they purportedly granted land to the 2nd respondent is outside the pleadings of the parties as contained in paragraph 22 of the Amended Statement of claim and paragraph 27 (c) and (e) on the 2nd and 3rd Respondent Pleadings. It was further submitted that without any evidence to the effect that no land in Ijebu-Owo can be granted without the consent of Olowo the trial Court nevertheless concluded that when the abolition order was still in existence any act done by the appellants on behalf of Ijebu-Owo Community without the consent of the Olowo of Owo is illegal, void and ineffective. It was again submitted that by the above finding the trial Court had formulated its own case from the evidence before it and proceeded to give its own judgment contrary to the case of the parties before it.

It was submitted that the holding of the trial Court linking the abolition order of Ojomo chieftaincy with ownership and title of land in Ijebu-Owo whereby no land could be granted without the consent of Olowo of Owo has occasioned miscarriage of justice to the appellants.

It was submitted that the consent judgment Exhibit J binds the 2nd and 3rd respondents who derived their title from the Aboluwodi who settled amicably with the appellants on acknowledging their title to the land in dispute. It was submitted that by the consent judgment the appellants had established a better title to the land in dispute entitling them to the relief of injunction against the respondents.

It was submitted that the 1st Defendant having failed to file any defence and give evidence in Court he had tacitly accepted the ownership and title of the appellants on the land in dispute. In the circumstance, the appellants are entitled to an order of injunction against the 1st Respondent as trespassers on the land in dispute.

Arguing the appeal, learned counsel for the 1st respondent contended that the description of the land in dispute by the PW1 did not relate to the land described in paragraphs 8 and 37(a) of the amended Statement of claim. It was further argued that the PW4’s description of the land further conflicted with the boundaries of the land as pleaded by the appellants. It was submitted that from the foregoing the identity of the land in dispute had been put in issue and the appellants needed to prove same in order to succeed in their claim.

Partitioning of family or communal land, it was submitted, is a matter of fact. Therefore there must be copious averments in the pleadings about the alleged partition to buttress the partitioning proffered.

The appellants in this case it was submitted omitted to show how the land devolved on the present chiefs without tracing their predecessors and link them with the original owners.

It was submitted that where a party relies on native law and custom for declarative and injunctive reliefs as in this case he must plead the facts and prove same by cogent and credible evidence. In the instant case, the appellants it was argued did not plead the custom or tradition that any Olowo might deal with land in Owo Kingdom as he wished such as sharing the kingdom with his maternal brother to the exclusion of other royal ruling families and members. We were referred to Ajibi V. Olaewe (2003) 8 NWLR (Pt. 822) 237 at 279D.

It was submitted that the evidence of the 1st and 2nd appellants (Pw1 and Pw4) that Ijebu-Owo had never been a quarter in Owo (page 70 of the record) and that Ijebu-Owo is an independent community (page 12 of the supplementary record of appeal) are at variance with Exhibit A where “Oludipe was placed at the outskirt of Owo where he built a larger quarter with strangers who settled with him – page 46 of Exhibit A.

The main documentary evidence of the appellants Exhibit A, it was submitted did not support their case.

The fact that evidence is not challenged or contradicted, it was submitted does not give automatic acceptance by the Court and judgment in favour of a party unless it is satisfied with the credibility, reliability and fulfillment of law. We were referred to Akalohu V. Omokaro (2003) 8 NWLR (Pt. 821) 190 at 206 – 207 and Omoreghe V. Lawani (1980) 3 – 4 SC 108.

Exhibit D it was submitted was rightly discountenance having not complied with section 34(1) of the Evidence Act.

Exhibit J, it was submitted only binds the parties to it and not the other respondents.

It was the appellants that raised the issue of chieftaincies of Olowo and Ojomo in relation to the land in dispute it was submitted and the Court had a duty to pronounce on it. It was submitted that the trial Court confined itself to issues raised and did not raise any issue suo motu.

It is trite law, it was submitted that a document is considered as a whole in order to properly adjudicate on an issue for address and consideration by the Court. We were referred to Bayo v. Njidda (2004) 8 NWLR (Pt 876) 544, Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400 at 417 and Usiobafo V. Usiobafo (2005) 3 NWLR 665 at 689.

It was submitted that the claim for injunction cannot succeed where the claim for declaration of title has failed. It was submitted that from the pleadings and evidence, the appellants did not know the boundaries of the land. Therefore their claim for injunction was bound to fail.

It was submitted that the issue of Oludipe belonging to a quarter on the evidence was not a creation of the Lower Court. The Court was referred to evidence of the 2nd appellant and DW3 (2nd respondent). Therefore the trial Court did not formulate its own case different from the evidence adduced.

Learned Counsel for the 1st respondent did not argue issue 1 on whether the action was statute barred.

Learned Counsel for the 2nd, 3rd and 5th respondents submitted on issue 1 that the action was statute barred and referred the Court to paragraph 32 of the amended statement of claim. He submitted that a computation of the dates shows that whether it was 1962, 1976 or 1986 the period between any of these dates and when this action was filed in 2004 is more than (12) twelve years stipulated in section 6(2) of the Limitation Law of Ondo State.

On issue 2, the Court was referred to the pleadings and evidence before the Court which show that the identity of the land was an issue. These include paragraphs 8 and 37 of the amended statement of claim, paragraphs 11, 13(a) and 13(b), of the 2nd and 3rd respondents’ statement of defence and evidence of Pw1.

It was submitted that the appellant failed to establish the identity of the land in dispute and the proper order the Court should make is to dismiss the action. We were referred to Okochi v. Animko (2004) ALL FWLR (Pt.200) 1524 at 1533, Ilona V. Idakwo (2003) 14 NSCQR 1011 at 1033 and Ezeokeke V. Umanocha Uga (1962) ALL NLR 482.

That the 2nd appellant both in his evidence in chief and under cross-examination referred to paragraphs 46 and 47 of Exhibit A as showing the partitioning of Owo by Adedipe and carving out from the central mosque to Okiti Oshodi but that Exhibit A did not describe and give a description of the boundaries of the land that was partitioned. We were referred to paragraphs 46 and 47 of Exhibit A. It was submitted that the portion of land given to Ojomo of Ijebu-Owo was that referred to as outskirts of Owo with no defined boundaries. It was submitted that paragraphs 8 and 37(a) of the appellants’ amended statement of claim that dealt with the identity of the land in dispute is at variance and contradicts the evidence adduced by the appellants and cannot therefore be relied upon.

The appellants, it was submitted, relied on traditional evidence and documents to prove their case. It was submitted that merely saying outskirt of Owo was not a clear indication of the boundaries of the land in dispute thereby making it uncertain.

It was submitted that the traditional history must show how the land by a system of devolution eventually came to be owned by the appellants. We were referred to Lebile V. Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria Ugbonla & Ors (2003) Vol. 2 Federal Reporter page 100 at 108 Ewo & Ors v. Ogbodo Ani & Ors (2004) 17 NSCQR 36 at 53-54 and Achiakpa v. Nduka (2001) FWLR (Pt 71) 1804 at 1829.

It was submitted that there must be unbroken claim linking the first founder to the present claimants. The appellants, it was further submitted failed to plead and adduce evidence of custom and tradition of Owo regarding the power of the Olowo to deal with the land in his domain and that belonging to him personally. It was submitted that an insufficient averment and evidence as to the founding and devolution of the land in dispute would not found such a claim in traditional history. We were referred to Elomo V. Onakanmi (2006) ALL FWLR (Pt.298) 1242 at 1263 – 1264 G -A.

On Exhibit A relied upon by appellants, it was submitted that nothing from Exhibit A suggests that Ijebu-Owo was an independent community right from inception. It was submitted that Ijebu-Owo was not created as a separate entity with independent status but as one of the quarters within Owo Kingdom.

It was submitted that the trial Court properly evaluated the evidence before it. That the appellants relied on paragraphs 46 and 47 of Exhibit A but it was during cross-examination that counsel asked questions relating to paragraph 48 of the said Exhibit A and this paragraph does not support the case of the appellants.

The trial Court, it was submitted, rightly discountenanced Exhibit D because it did not meet the requirement of section 34 of the Evidence Act. The trial court it was submitted properly evaluated Exhibit E. Exhibit J it was submitted only binds the parties to it. Exhibit K, it was submitted, has no assistance to the appellants. Exhibit P, it was submitted in a dent on the issue of identity, it was submitted. We were referred to paragraph (V) of Exhibit P. It was submitted that the learned trial Judge properly evaluated Exhibit A, D, E, F, J, K, N, P, R and S at pages 130 – 145 of the record.

It was submitted that from Exhibit A, D, E, K, N and P and the facts before the Court the issue of ownership of the land in dispute cannot be divorced from the issue of Olowo and Ojomo chieftaincies. It was submitted that most of the findings complained about were brought out during cross-examination. That from pages 10-11 and 14-15 of the supplementary record of appeal Ojomo chieftaincy derived ownership of the disputed land as a result of chieftaincy matter which led to the partitioning.

It was submitted that the trial Court was right when it held that the Appellants did not have the power to deal with land in Ijebu-Owo quarter as claimed in 1962.

Where a statute of Limitation Prescribes a period within which an action should be brought. The legal proceedings cannot be properly instituted after the expiration of the prescribed period. An action instituted after the expiration of the prescribed period is said to be statute barred.

Time begins to run for the purposes of the Limitation Law from the date the cause of action accrues. See Osun State Government V. Dalami Nigeria Ltd (2007) ALL FWLR (Pt 365) 438 and Jallco Ltd V. Owoniboys Tech. Serv. Ltd (1995) 4 NWLR (Pt.391) 534.

In considering whether an action is statute barred it is only the writ of summons and statement of claim that are considered. See Onuorah V. K. R. P. C (2005) 6 NWLR (Pt.921) 393.

Section 6(2) of the Limitation Law of Ondo State provides thus:

“No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action-accrued to him or if it first accrued to some person through whom he claims to that person.”

On the above provision of the law the Lower Court in its Judgment held that the action of the appellants was statute barred relying mainly on paragraph 32 of the amended statement of claim and Exhibits T and S. The Learned Trial Judge was wrong in considering Exhibits T and S tendered by the respondents at the trial in considering whether the action was statute barred or not. I agree also with learned counsel for the appellants that the learned trial Judge did not critically look at the amended statement of claim in considering whether or not the action was statute barred but limited himself to paragraph 32.

It is clear from the amended statement of claim that the action was for present trespass as at the time of the action and the statute of limitation could not possibly apply to it. The appellants also pleaded that the land was subject to native law and custom. Therefore the Limitation Law of Ondo State was not applicable. See Oyebanji,v. Lawans (2008) ALL FWLR (Pt.438) 243 – 244.

I agree with the submission of the learned Counsel for the appellants that if the learned trial Judge had looked at the paragraphs 8, 9, 14, 22 and 28 of the amended statement of claim and applied the applicable law, he would have arrived at a different conclusion which is that the appellants were claiming ownership of the land in dispute by inheritance under customary Law which renders the Limitation Law inapplicable.

The action was not statute barred.

Issue 1 is therefore resolved in favour of the appellants.

1. Traditional evidence.

2. Production of document of title

3. Proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land.

4. Acts of long possession and enjoyment of the land.

5. By proof of possession of adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

See Matanmi v. Dada (2013) 2 SCNJ 616 and

Nruamah v. Ebuzoeme (2013) 1 SCNJ 128.

The appellants in this case claim among other reliefs declaration of title to land. They must therefore establish their claim on the strength of their case. They cannot rely on the weakness of the defence, if any. The burden of proof on the plaintiffs/appellants in establishing their declaratory relief to the satisfaction of the Court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendants/respondents where the plaintiffs/appellants fail to establish their entitlement to the declaration sought by their own evidence. See Matanmi v. Dada (Supra) and Nruamah v. Ebuzoeme (Supra).

In the instant case the appellants have argued in this appeal that the respondents did not make the identity of the land an issue contrary to the holding of the lower Court and that in any case the respondents know the identity of the land. Learned Counsel for the appellants referred to a counterclaim by the 6th respondents which was withdrawn as evidence that the respondents know the land. He also referred to the averment by the 2nd and 3rd respondents that the land in dispute is part of Owo communal land. The counterclaim of 6th respondent having been withdrawn will not be considered.

Was the identity of the land in dispute made an issue on the pleadings? Paragraphs 8 and 37 of the amended statement of claim reproduced immediately hereunder read as follows:

“8. Plaintiffs aver that the land in dispute which is known to ail Defendants herein starts on the western side, from Owo Central Mosque down to Oshogboye moat running northwards along old Owo/Ikare Road up to Uwese Stream/River. On the Northern side starting from the intersection of Alaaye farm Road. On the Eastern side starting from the intersection of Alaaye farm Road and Uwese Stream downwards to Old Owo/Benin Road, and on the southern side Old Owo/Benin Road”.

“37(a) A Declaration that the Plaintiffs’ Community is entitle to the Right of Occupancy of all that piece or parcel of land starting on the western side from Owo Central Mosque down to Oshogboye moat running north-wards along Old Owo Ikare road up to Uwese Stream/River. AND on the Northern side from Uwese Stream running eastwards up to Alaaye farm road AND on the Eastern side starting from intersection of Alaaye farm Road and Uwese Stream/River downwards to Old Owo/Benin Road AND on the Southern side the Old Owo/Benin Road”.

Paragraphs 11, 13(a), 13(b) and 14 of 2nd and 3rd Respondents’ amended statement of defence read as follows:

“11. In further reference to paragraph 8 of the Plaintiffs’ Statement of Claim, the 3rd & 4th Defendants specifically deny that there is a separate parcel of land belonging to Ijebu – Owo, rather, the 3rd & 4th Defendants powerfully contend that all pieces/parcels of land within Owo kingdom (Ijebu-Owo inclusive), remain Owo communal land held in trust by the Olowo-in-Council, and that the parcel of land currently in dispute and whose boundaries have been set out in paragraph 8 of the Plaintiffs’ statement of claim is a part thereof”.

“13(a) The 3rd & 4th Defendants emphatically deny the Plaintiffs’ artificial and speculated boundaries enumerated in paragraph 8 of the Plaintiffs Statement of claim and contend that the Old Owo/Benin,, the Alaaye farm Road, the Old Owo/Ikare Road up to Uwese Stream the Owo Centre Mosque were not created by the old coronial administration to serve as boundaries between Owo Community and Ijebu – Owo. The 3rd g 4th Defendants put the plaintiffs to the strictest proof thereof”.

“13(b) The 3rd & 4th Defendants shall contend at the trial of this case that Uwese stream which the plaintiffs claimed to be the boundary is historically the boundary between Ipele and Idoani towns”.

14. In further reply to paragraphs 8, the 3rd & 4th Defendants shall contend that the moats constructed at the outskirt of every quarter in the olden days at Owo were trenched dug to repel the invasion of the Binis during the reign of Olowo Oshogboye. After the conquest by Owo of the invading Binis, the trenches were left as they were traces thereof are still conspicuous today at the five quarters of Iloro. Ehinogbe, Igboroko, Isanpen and Ijebu-Owo that constitutes Owo”.

In paragraphs 23 and 24 of 5th respondent’s amended statement defence, he averred as follows:

23. In response to paragraph 8 of the Statement of Claim, the 6th Defendant will contend that the Old Owo/Ikare Road up to Uwese Stream, the Old Owo/Benin road, the Alaaye farm land road, the owo central Mosque were not created by the colonial administration to serve as boundaries between Owo community (kingdom) and Ijebu-Owo quitters”.

Par 24. Further to the above, the 6th Defendant avers that the said “Oshogboye moat” was among the many trenches dug at different quarters in Owo during the reign of Olowo Osohogboye in order to repel the invasion of the Binis. Traces of which can still be found at Iloro Quarters, Ehiogbes, Isaipen and Ijebu quarters – Owo and were not meant and they never constitute boundaries to Ijebu – Owo or to any other quarters in Owo whatsoever.

From, the paragraphs of the amended statement of claim, amended statement of defence of the 2nd and 3rd respondents and the amended statement of defence of the 5th respondent the identity of the land had been made on issue.

It is clear from the pleadings that the appellants herein relied on traditional evidence in proof of their title to the land in dispute.

It is the law that a party who is relying on traditional history must specifically plead and prove the following before the Court:

(a) Who founded the land.

(b) In what manner was the land founded

In the instant case, it is the contention of the appellants that they had no duty to plead and prove who founded the land and how it devolved up to the 19th Owo. Learned counsel for the appellants cited the case of Amukan v. Amuham in support of his argument. The case is not applicable in this case because it is not pleaded in the instant case how the land devolved to the appellants. Apart from the pleading that Adedipe divided the Kingdom of Owo and gave part to the brother Oludipe, it is nowhere pleaded how the land which the Olowo divided was founded, It is nowhere pleaded how the land devolved from Ojomo Oludipe to the appellants. If there was no need to plead how the land was founded before it devolved on the 19th Olowo it was undoubtedly necessary to plead how it devolved from Ojomo Oludipe, the 1st Ojomo to the appellants.

It is clear from the pleadings and even the evidence that appellants did not plead sufficient traditional history and led no such evidence in proof of their claim.

Learned Counsel for the appellants further submitted that it was unnecessary to plead those who were present and consented to the partition when the land in dispute was not family land. This too is a misconception of the position of the law because since what amounts to partition is a matter of fact, there must be copious averments in the pleadings about the alleged partition and cogent and positive evidence of partition to buttress the averments because partition of a kingdom is weighty. See Adeyori v. Adeniran (2001) FWCR (Pt.76) 689. In the instant case there is paucity of pleading on the partition and the evidence too scanty to establish the alleged partition.

It is the submission of learned counsel for the appellants that the appellants proved title to the land. From the pleadings and evidence of the PW1 and PW4 the kingdom of Owo was divided into two between two brothers. While PW1 and PW4 in their evidence in chief tried to maintain this position, PW1 under cross-examination made u-turn and referred to what was created as a quarter. He said and I quote:

“It was from Owo that Ijebu-Owo was created and made a quarter. It was not the fifth quarter.

Adedipe, the then Olowo made Oludipe his brother the Ojomo Oluda of Ijebu Owo and made the title to be above the other quarter head/chiefs.”

This undoubtedly knocked the bottom off the case of the appellants that Ijebu-Owo was a kingdom of Owo. This is because a quarter is not the same with a kingdom.

Although both PW1 and PW4 strenuously tried to describe the boundary of land in dispute as contained in the pleadings and claim of the appellants, PW1 in the supplementary of appeal – claimed that the partition was recorded in a report Exhibit A. Under cross-examination also contained in the supplementary record of appeal PW1 maintained that Exhibit A is the record showing the partitioning of Owo by Adedipe and carving out Ijebu-Owo from the central mosque. Again I quote him:

“At the time Adedipe was partitioning Owo with his brother Oludipe, there, were no boundaries mentioned except the fact that the portion to Oludipe was referred to as the outskirt of Owo:

This violently conflicts with the pleadings and evidence of the witnesses on the area claimed.

It is very clear from the foregoing that the area claimed by the appellants was not identified and this was fatal to their claim for declaration of title to the land. Added to this is the appellants’ failure to prove that there was a division of the kingdom of Owo into two.

Learned Counsel for the appellants complained about the use or lack of it of the documents tendered by them at the trial. Firstly he complained that the trial Court went outside paragraphs 46 and 47 to paragraphs 48 -150 of the said Exhibit A which were neither pleaded no referred to in evidence. He relied on the case of Nteogwuile V. Otuo (2006) 16 NWLR (Pt. 738) 58 at 75 D-E to argue that a trial Court is not entitled to comb and search through Exhibits tendered and use materials found as if those were facts pleaded. With respect to learned counsel for the appellants he has not shown that the paragraphs of the said Exhibit A relied upon by the learned trial Judge were on facts not pleaded. So the complaint on this score has no basis. In the case of Nteogwuile V. Otuo (Supra) referred to the document relied upon by the trial Court was on facts not pleaded and was an opinion of an expert who did not tender it. That case is therefore not relevant in the circumstances.

The learned trial Judge relied on Section 34 of the Evidence Act to discountenance Exhibit D. Section 34(1) of the Evidence Act relied upon by the learned trial Judge provides as follows:-

“34 (1) Evidence given by a witness in a judicial proceedings, or before any person authorized by law to make it is relevant for the purpose of proving: in a subsequent judicial proceedings, or in a later stage of the same judicial proceedings the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party or when his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case; the Court considers unreasonable:

Provided:-

(a) That the proceedings was between the same parties or their representatives in interest.

(b) That the adverse party in the first proceedings had the right and opportunity to cross-examine; and

It has not been shown that section 34 was complied with by the appellants.

The learned counsel has not shown that the proceedings in the previous case were between the same parties or their representatives. That the adverse party in the first proceedings had the opportunity to cross-examine. That the questions in issue were substantially the same.

In the light of the foregoing, I am of the view that the learned trial Judge rightly discountenanced Exhibit D.

Learned counsel for the appellants contended that the respondents are bound by Exhibit J contrary to the decision of the lower court. Exhibit J is an agreement between the appellants and 2nd Defendant. I fail to understand how the other defendants in the suit are bound by the agreement between the appellants/plaintiffs and the 2nd Defendant in the case. The other defendants who were not parties are not bound by the agreement. Co-defendants are not privies to the 2nd Defendant. They were co-defendants period. Therefore the Lower Court was right in holding that the other defendants/respondents were not bound by Exhibit J. Exhibit K was properly considered by the Lower Court. Exhibit N was not tendered by the appellants. The fact that appellants objected to its being admitted in evidence does not mean that the Lower Court should have disregarded it.

Learned Counsel for the appellants submitted that the appellants were entitled to Judgment against the 1st respondent who failed to file a defence and gave no evidence. Failure to file a defence and give evidence certainly did not relieve the appellants of the onus of proving their claim against the 1st respondent to the satisfaction of the Court. The appellants as the Lower Court found failed to do so. This decision is unimpeachable.

The Lower Court found that appellants failed to plead sufficiently and lead credible evidence to support their claim. That the traditional evidence led by the appellants was sufficient, vague conflicting and could not be relied upon or believed in view of the conflicts in the evidence of PW1 and PW4.

In my view these findings are based on the Evidence before the Lower Court upon the pleadings. The Lower Court unquestionably evaluated the evidence and appraised the facts. This Court cannot therefore substitute its own views for those of the Lower Court.

Issue 2 is therefore resolved in favour of the respondents. Issue 2 having been resolved in favour of the respondents, the appeal is hereby dismissed.

The claim of the appellants is dismissed in its entirety.

1st, 2nd, 3rd and 5th Respondents are awarded N30,000 costs each to be paid by appellants.

SOTONYE DENTON WEST, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother James Shehu Abiriyi, JCA and I agree with the reasoning and conclusion therein.

I wish to emphasize that in an action for declaration of title to land, it is the duty of the trial court, after hearing evidence to consider such evidence and see whether it comes within the purview of one of the established five ways of proving title to land. See: Ifo vs. Essien (1986) 5 NWLR (PT. 41) 378 and Okoroafor vs. Abaworonini (1996) 2 NWLR (Pt.430) 278 @ 288.

From the pleadings and evidence led in this matter, the Appellants relied on traditional evidence in proof of their title to the land, subject matter of this appeal. The Supreme Court in the recent case of Nruamah vs. Ebuzoeme (2013) 1 SCNJ 128, held that it is trite that a party who is relying on traditional history must specifically plead and prove the following:

(1) Who founded the land in dispute

(2) In what manner was the land founded

(3) The names and particulars of successive owners through whom he claims.

In the instant case, the Appellant’s position is that they are not obligated to plead and prove who founded the land, in what manner the land was founded and how the land devolved up to them. That is too bad for their case.

For this and the more detailed reasons ably marshalled out in the lead judgment, I also hold that the appeal lacks merit and is hereby dismissed in its entirety. I abide by all consequential orders, including orders- as to cost.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have perused the leading judgment in this appeal as prepared by my Lord J.S. Abiriyi, JCA, in draft and agree that this appeal should be dismissed.

I have looked at the myriad of Issues formulated by the parties, as did my learned brother in the leading Judgment and agree that only two issues call for determination, to wit:

Whether the suit was statute barred and (2) Whether the Appellants had proved their case at the trial court.

The 1st Issue is easily determined on the answer that the suit is not statute barred as the limitation of Action law of Ondo State is in-applicable to a claim in customary law title or ownership as made.

However, on the merit of the Appeal, it is clear that the Appellants did not, as plaintiffs at the trial court prove their claim at all as relating to title to the land claimed.

The Appellants had claimed for declaration of title to land. At the trial, the PW1 and PW4 gave conflicting evidence as to the identity of the land claimed, whilst PW4 maintained as per the pleadings that the land claimed was a separate and a partitioned land distinct from the Owoland, the PW1 in cross-examination maintained that the land was not distinct from Owo.

I agree with my Lord Abiriyi JCA that this conflict rendered the evidence of the plaintiffs in violent contradiction with the pleadings and in conflict with one another.

On this ground alone, the claim was bound to fail, as it has in the circumstance, not been proved on the preponderance of evidence.

The onus probandi was not satisfied. He that asserts, must prove.

As this court stated in Appeal No. CA/B/146/2006, delivered on 27th February, 2014, per Owoade, JCA.

“This is because he that asserts must prove. The position of the law is adequately captured by the provision of S.137 of the Evidence Act. By the section, the burden of proof is not static it fluctuates between the parties, Sub-section (ii) places the first burden on the party against whom the court will give Judgment if no evidence is adduced in either side. In other words the onus probandi is it on the party who would fail if no evidence is given in the case.”

In the face of this conflict alone, the trial Judge was right in dismissing the Appellants’ case at the trial court.

The issue of the identity of the land had been put in issue.

Where a claimant fails to establish with certainty the identity of the land he claims ownership of title in respect thereof, whatever evidence, whether oral or documentary he produces at the trial and however cogent or credible the evidence might appear it cannot in law ground a declaration of title in his favour see Jinadu v. Esuronbi – Aro (2005) 14 N.W.L.R (Pt.944) 142.

The Learned trial Judge was right when he held that the Appellants did not lead credible evidence in that respect.

Since both parties were no! in consensus as to the definite land, and since the PW1 and PW4 were divided as to whether the land claimed was indeed part of Owo land, certainly the court will be misled as to where the land in dispute is and whether the plaintiffs/Appellants were entitled to it as part of their kingdom in view of the “partition” and “excision” evidence and the effect thereof (which the Plaintiffs/Appellants PW1 and PW4 were not in accord). Was the land at the out skirt of Owo and part of Owo or not? Where the issue of identity of the land is left to conjecture it may be fatal to a claimant’s case. See Oke v. Oke (1982) 12 SC 218, Ibuluya v. Dikiko (1976) 1 ALL N.L.R 396.

Many otherwise good cases are lost because of want of proof.

On the evidence led, the Trial Judge properly evaluated and came to the correct decision upon the facts, evidence led and the law relevant thereto. That Judgment cannot be faulted. I affirm same; and endorse the leading Judgment dismissing the appeal against it.

I also abide by the consequential order relating to costs as made in the leading Judgment of my Lord, J. S. Abriiyi, JCA.

Appearances

Timitope Adedilepe with Ikujuni and A. AdejuyigbeFor Appellant

AND

O. Abitoye with B. Akintola for the 1st, 2nd, 3rd and 5th RespondentsFor Respondent