CHIEF TAIWO ELEMORO & ANOR v. CHIEF FATAI ABIODUN (2014)

CHIEF TAIWO ELEMORO & ANOR v. CHIEF FATAI ABIODUN

(2014)LCN/7729(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/L/461/2012

RATIO

APPEAL: GROUND OF APPEAL; THE CONDITIONS FOR A GROUND OF APPEAL TO BE VALID AND COMPETENT AND WHETHER THE LACK OF OR A DEFECTIVE PARTICULAR IN A GROUND OF APPEAL WOULD NOT NECESSARILY RENDER THE GROUND ITSELF INCOMPETENT

It has been settled by case law that for a ground of appeal to be valid and competent it must relate to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. It is still good law that where a good ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against, it is incompetent and liable to be struck out.
The purpose of a ground of appeal is to isolate and accentuate for attack the basis for the reasoning of the decision challenged. It must be fixed and circumscribed within a particular issue in controversy otherwise it is incompetent. The ground and particulars are suppose to show the faulty rationale which led to the decision or judgment by the lower court, see AMORI V. IYANDA (2008) 3 NWLR (PT.1074) 250 AT 272 – 273.

Particulars in support of a ground of appeal is a further elucidation or elaboration of the grounds of appeal and to give the Respondent the gist of the issues involved in the appeal. Particulars serve to state reasons for the complaint of the appellant in each ground, see the case of CHIEF RUFUS OMOTOSHO & ORS V IFE NORTH LOCAL GOVERNMENT AREA (2010) ALL FWLR (PT.544) 22 AND OLORUNTOBA OJU V ABDUL-RAHEEM (2009) ALL FWLR 1.
Once that purpose is achieved a ground of appeal cannot be seen as defective. It has however been held that lack of it or when it is defective would not affect the ground of appeal, the Supreme Court held as follows:
“Learned counsel must be reminded that the grounds of appeal may stand on their own once they represent an appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the appellate court’s intervention. Lack of or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent. See PRINCE (DR) B. A. ONAFOWOKAN & 2 ORS V WEMA BANK PLC & 2 OTHERS NSCQLR VOLUME 45 AND BEST (NIGERIA) LTD V BLACK WOOD HODGE (NIGERIA) LTD & 2 ORS NSCQLR VOLUME 45.”
See also the case of PROFESSOR E.A. ABE V. UNIVERSITY OF ILORIN & ANOR (2013) LPELR – 20643 (SC). per. Y.B. NIMPAR, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; WHETHER THE COURT WOULD PUNISH THE APPELLANT FOR THE MISTAKE OF COUNSEL IN THE FORMULATION OF APPELLANTS BRIEF AND THE DUTY OF THE COURT TO EXAMINE ISSUES AND RESOLVE THEM ON THE MERIT

It has been stated over and over again that the mere fact that a counsel lacks the skill in the formulation of appellants brief does not make a court throw out the brief and in so doing punish the appellant for the mistake of counsel. An appellate court is under a duty to examine issues and resolve them on the merit, see OBIORA V OSELE (1989) 1 NWLR (PT 97) 279, On this basis therefore the objection is unmeritorious and is hereby dismissed. per. Y.B. NIMPAR, J.C.A.

EVIDENCE: PROVING TITLE TO LAND; WAYS OR METHODS OF PROVING TITLE TO LAND
This issue question whether the appellants proved title to the land in dispute. The trial court was right in restating the 5 methods of proving title to land as settled in the case of IDUNDUN V OKUMAGBA (1976) 10 SC 227; AYOOLA V ODOFIN (1984) 11 SC 72 and DABO V ABDULLAHI (2005) 7 NWLR (PT 923) 181. The methods are:-
(a) By traditional evidence
(b) By documents of title
(c) By various acts of ownership numerous and positive, and extending over a length of time as to warrant the inference of ownership
(d) By acts of long enjoyment and possession of the land
(e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition, be the owner of the disputed land.
Proof of title can be by one or more of the methods settled above, see UGWUNZE V ADELEKE (2005) 2 NWLR (PT 1070) 148 at 176 – 177. per. Y.B. NIMPAR, J.C.A.

EVIDENCE: PROVING TITLE TO LAND; THE DUTY OF A CLAIMANT WHO DESIRES TO PROVE TITLE BY DOCUMENT OF TITLE TO ALSO TRACE THE ROOT OF HIS GRANTOR AS SOMEONE WHO HAS THE RIGHT AND CAPACITY TO GRANT HIM AUTHORITY OVER THE LAND

To determine the method adopted by claimant recourse must be had to the pleadings. Here the trial court found only the traditional method of proving title but on a closer examination there were 2 methods pleaded. The second method is Government grant through Exhibit K. The trial court identified the two methods but considered only the traditional history. The questions to ask is whether the excision in a gazette duly registered satisfies the second method of proving title to land. Instrument of title has been defined as:
“a document affecting land in Lagos State whereby one party confers, transfers, limits, charges or extinguishing in favour of INCORPORATED TRUSTEES OF KWAMO DEVELOPMENT TRUST V A.G. LAGOS STATE (2010) LPELR – 4307 (CA).
The case of AKINDURO v ALAYA (2007) 15 NWLR (PT 1057) 312 also considered instrument of title under the Land Instrument Registration Law, Lagos State and defined instrument of title as a document affecting land in the State whereby one party usually called grantor confer, transfers, limits, charge or extinguishes in favour of another party called the grantee any right or title to, or interest in the state. So therefore, the gazette excising land back to Ajiwe village indigenes is an instrument of title. A claimant who desires to prove title by documents of title is expected to also trace the root of his grantor as someone who has the right and capacity to grant him authority over the land, see ODOFIN V AYOOLA (1984) LPELR 2227 (SC) and LAWSON V AJIBULU (1997) LPELR – 1766 (SC) where the court had this to say:-
“Production of title document alone is not sufficient, he must go further to trace his root of title to one whose ownership of the land has been established.”Here the appellants traced their root of grant to the Lagos State Government by the excision which was duly gazetted. Lagos State Governor under the Land Use Act owns all the land in the State which he holds on behalf of the people of Lagos State and it includes all the parties in this appeal. By virtue of the Land Use Act the Governor of Lagos State has the right and capacity to make the grant. I agree with the appellant’s counsel that the grant is an entirely new root of title which is not rooted in the Respondent or Ogunsemo family, this the trial court also found. The argument of Respondent’s counsel that the excision restored all customary rights including the over lordship of the Respondent is not tenable and a misconception of the Law. per. Y.B. NIMPAR, J.C.A.

EVIDENCE: PROVING TITLE TO LAND; THE QUESTION THE COURT NEEDS TO INQUIRE INTO FOR A DOCUMENT OF TITLE TO BE ADMISSIBLE
It is trite that mere production of document of title does not necessarily carry with it automatic relief of grant of declaration relating to such Land, certain factors must be taken into account in the consideration. The Supreme Court in the case of DABO V ABDULLAHI (2005) LPELR 905 (SC) had this to say:-
“Admittedly the production of documents of title is one of the recognized methods of proving title to land, see IDUNDUN V OKUMAGBA (1976) 0 – 10 SC 227 at 246; PIARO V TENABO (1976) 12 SC 31 at 37. But such a document of title must be admissible in evidence and be of such a character as to be capable of conferring valid title on the party relying on it. Discussing the nature and character of such a document of title, this court in the case of ROMAINE V ROMAINE (1992) 4 NWLR (PT 238) 650 at 662 observed thus:- “I may pause here to observe that one of the recognized ways of proving title to land is by production of a valid instrument of grant: see IDUNDUN V OKUMAGBA (1976) 9 – 10 SC 227; PIARO V TENALO (1976) 12 SC 31 at 37; NWACHI V IBEKWE (1987) 4 NWLR (PT.67) 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance on such an instrument it inevitably comes with the need for the court to inquire into some of or all of a number of questions:

(a) Whether the document is genuine and valid.
(b) Whether it has been duly executed, stamped and registered.
(c) Whether the grantor had the authority and capacity to make the grant.
(d) Whether in fact the grantor had in fact what he purported to grant.
(e) Whether it has the effect claimed by the holder of the instrument.” per. Y.B. NIMPAR, J.C.A.

EVIDENCE: ADMISSIBILITY AND WEIGHT; THE DIFFERENCE BETWEEN ADMISSIBILITY AND WEIGHT ATTACHED TO AN EVIDENCE
It has been settled by the Supreme Court in a plethora of cases that admissibility is one thing while weight is another, see ABUBAKAR V CHUKS (2007) LPELR 52 (SC) where the apex court explained the difference in the following way:

EVIDENCE: BURDEN OF PROOF; BURDEN OF PROOF IN CIVIL CASES
The burden of proof in civil cases oscillates and it is not static as in criminal cases, it first starts with he who asserts. A claimant has the first duty to prove his assertion failing which that pleading is unproved, see the case of ATTORNEY GENERAL OF KWARA V OLAWALE (1993) 1 SCNJ 208. per. Y.B. NIMPAR, J.C.A.

Before Their Lordships

AMINA A. AUGIEJustice of The Court of Appeal of Nigeria

YARGATA B. NIMPARJustice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria

Between

1. CHIEF TAIWO ELEMORO
2. LATIFU AJIWE (For themselves and descendants of Ajiwe)Appellant(s)

AND

CHIEF FATAI ABIODUN (The OLUMEGBON of Lagos, Party joined by order of court, dated 19th February, 2007)Respondent(s)

Y.B. NIMPAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice B.A. Oke-Lawal of the Lagos High court delivered on the 2nd February, 2012 in the suit brought by the Plaintiffs now appellants against Apostle Abai Olanrewaju and several others who were later struck out by the court and the Respondent joined by order of the lower court on the 19th February, 2007, he remained the only respondent to this appeal.
The Appellants as plaintiffs by a 4th Amended statement of claim principally sought for a declaration over a piece of land and perpetual injunction against the defendants (amongst other reliefs). The claim is expressly provided in paragraph 34 page 7 of the record and it states as follows:

1. A DECLARATION that the parcel of land measuring 23.43 hectares, forming Ajiwe village Excision Published in Lagos state official Gazette No.9 Vol. 29 of 28th March, more particularly described in survey Plan Misc 1078, prepared by Governor’s office, Survey Directorate, Ikeja, Lagos, belong exclusively to the claimants to hold same in trust for the descendants of Ajiwe village.

2. A DECLARATION that the unauthorized acts of the defendants on the claimant’s land including sale, building and adverse possession amount to trespass.

3. AN ORDER awarding the sum of N2m (Two million naira) to the claimants as damages for trespass.

4. A DECLARATION that any purported sale or alienation of the claimants’ land or any part thereof by the defendants in any manner whatsoever without the concurrence of the claimants or their predecessors in title is null and void of no affect whatsoever.

5. AN ORDER authorizing the claimants, for and or on behalf of the descendants of Ajiwe village, Eti Osa Local Government Area of Lagos state, to take possession of their excised land, published in Lagos State Official Gazette No.9, Vol.9 of 28th March, 1996, more particularly described in survey Plan Misc. 1078, prepared by Governor’s office Survey Directorate, Ikeja, Lagos, measuring approximately 23.43 Hectares.

6. A PERPETUAL INJUNCTION restraining the defendants from encroaching on the claimants land and from selling, alienating, building or developing any part thereof without the concurrence, permission or authority of the claimants.

7. A PERPETUAL INJUNCTION restraining the defendants, their agents, servants, assigns, successor-in-title or anyone whosoever, claiming through, by or for them from trespassing on the claimants’ land and from disturbing the claimants from peaceful and quiet enjoyment of their excised land.

8. Cost of the action.

The defendant now respondent joined issues and denied liability, then the matter proceeded to trial. The Appellant and respondent called 2 witnesses each tendered several Exhibits which were marked as Exhibits A-W. The court after due consideration dismissed the claim in a judgment delivered on the 2nd of February, 2012. The Appellants felt aggrieved with the judgment and filed a notice of appeal with 5 grounds of appeal and distilled 2 issues for determination as follows:

1. Have the Appellants established that that they are the owners of the land in dispute?

2. Was there any excision and who was it in favour of?

The respondent in his Amended Respondent’s Brief of argument objected to one of the grounds of Appeal and in the alternative formulated 5 issues for determination in this appeal as follows:

1. Whether the learned trial judge was correct in holding that there is a conflict in the traditional history evidence of CW1 and CW2 respectively thereby leading to the dismissal of the Appellants claims.

2. Whether the learned trial judge was correct in holding that the Appellants progenitor did not found or settle in Ajiwe Village thereby leading to the dismissal of the Appellants claims.

3. Whether the learned trial judge was right in holding that there was an excision but that the Appellants have failed to establish that the excision of Ajiwe Village was specifically to the Appellants.

4. Whether the learned trial Judge was correct in holding that the Respondent is the overlord of Ajah.

5. Whether the learned Trial Judge was correct in holding that Exhibit I (the report and recommendation of the Tribunal of Inquiry into Ajah land Disputes) cannot be relied upon because there was no Lagos State Government White paper on it.

As noted above the respondent objected to Ground 3 and the particulars of the said ground. He argued the objection in the amended Respondent’s brief. The Appellant reacted to the objection in their Amended Reply brief. The court shall consider the said objection on its merit.

The objection is primarily targeted at ground 3 of the Amended Notice of Appeal. Arguing the Objection counsel to the respondent submitted that the Appellants by page 5 of their amended brief of argument distilled issue 2 from Ground 3 and that ground 3 is incompetent as the particulars of a ground of appeal must relate to and flow from the ground of appeal and because of the defective particulars the ground is incompetent. He submitted that the particulars of the ground do not relate to and flow from it. He contended that defective particulars, affect a ground of appeal and he cited the case of OLORUNTOBA- OJU & 4 ORS V ABDULRAHEEM & 3 ORS (2000) VOL. 6 MJSC (Pt 1) 1 AT 27.
Counsel further argued that an omnibus ground is designed to allow for an evaluation of evidence and it implies that the court did not evaluate the evidence before it and judgment not supported by the weight of evidence, he relied on the cases of AJIBOLA V KOLAWOLE & ANOR (1996) 10 NWLR PART 476 22 AT 26, 33 AND ANYAOKE & 3 ORS V ADI & 5 ORS (1986) 3 NWLR PART 31 731 AT 733; 734; 742.

Another area of complaint is that a ground of appeal and particulars should not be argumentative and that particulars numbers 5, 6, 7, 8, 9, 10 of ground 3 are contrary to Order 6 Rule 2(3) of the Court of Appeal Rules 2011 and therefore should be struck out.

In response, the Appellants Counsel submitted that there are other particulars in support of the ground that can sustain ground 3 and to single out one out of 10 particulars as basis for the striking out the ground is diversionary. He contended that ground 3 and the Particulars are competent and observed that Respondent’s issue 3 or C is the same as issue 2 of the Appellant which was fully argued in the Respondent’s brief and to strike it out means his arguments too would go.
Counsel argued that a defective brief of argument should not make the appeal incompetent as that would defeat the ends of justice if fault of counsel is visited on the party. He relied on the following cases:

1. EKPEMUPOLO & 4 ORS V EDREMODA & 5 ORS (2009) 3-4 S.C 56 AT 101

2. OBORA V OSELE (1989) 1 S.C (PT 11) 60; (1989) NWLR (PT 97) 279 AT 344.

Ground 3 of the Appellants’ notice of appeal state thus:

GROUND III
The trial judge erred in law when she held at page 32 of her judgment that “I therefore find that there was an excision but the claimants have failed to establish that the excision of Ajiwe village was specifically to the claimants’ family because it is trite that he who asserts must prove his assertion.”

PARTICULARS

1. The decision runs contrary to the weight of evidence before the court.

2. The evidence of the claimants and that of the defendants and his witness which was unchallenged was to the effect that the claimants predecessors in title were the first settlers at Ajiwe village after the land was granted to them by the Ogunsemo family.

3. The learned trial judge failed to take cognizance of the fact that the claimants pleaded that they applied for and were granted excision of their land at Ajiwe village by the Lagos state Government. The trial judge also failed to consider the evidence of CW2 to the effect that he participated in the processes leading to Ajiwe excision. See page 13 of the Judgment.

4. Having rightly found at page 31 of the judgment that when Lagos state government acquired the land, all interest of previous owners became extinguished and that the excision of Ajiwe village has not been challenged by any of the pafties or their counsel in their addresses, the learned trial judge was wrong in law to have concluded on her own and without prompting that “the contention of the claimants that the said excision in gazette No.9 in volume 29 of 1996, Exhibit k was to his family is not supported by the contents of the said document by which the government excised and released the land to the claimants’ family.”

5. The learned trial judge failed to realize that Exhibit K, the Lagos State government official gazette in respect of Ajiwe village excision is conclusive proof of the fact that the land in dispute was excised to the claimants’ family, the excision having not been challenged by any of the parties held by the lower court.

6. It is therefore preposterous for the learned trial judge to go outside the content of Exhibit k to find contradiction in the fact that Ajiwe village was not released to the claimants by bringing in Exhibit O19 which relates to a completely different subject matter, which did not in any way have any nexus with the claim before the court. The same wrong conclusion was reached at page 35 of the judgment, where the trial judge held that the claimants have no other land outside Budo farm, when “the parties did not join issues on that point in their pleadings as the issues of Budo Farm settlement was not before the court.

7. The trial judge having decided that the revocation order of Lagos state government had extinguished all the rights hitherto held by the parties, failed or willfully refused to follow the decision in the case of MAJOR MURITALA GBADAMOSI (RTD) & V H.R.M OBA TIJJANI ADETUNJI AKINLOYE & ORS (2004) CA/L/61/2001. The law as established in that case is to the effect that notice of revocation published by the Lagos state Government in 1981 and notice of revocation No. 34 of 1993 is valid and subsisting unless challenged by persons affected.

8. The defendant who did not challenge the revocation order of the Lagos state Government was also not aware of the excision by the Lagos state government to the claimants when he was quoted to have said at page 19 of the judgment that “there was never an excision to the claimants and if it was, then the claimants deliberately concealed from the Lagos sate government the fact that the family was their overlord’, cannot be adjudged by the trial court to be owner of such land.

9. The defendant cannot be permitted in law to turn round and a claim benefit of the excision to the claimants through claim of over lordship (if any), which had been extinguished by the revocation order of Lagos state government as held by the trial judge at page 31 of her judgment. It is also apt to mention that the court also observed at the same page 31 of the judgment that the excision was not challenged by any of the parties and their counsels.

10. The case of Major Muritala (supra) finally put paid to the question or any issue of over lordship which was not even for determination before the lower court.

The meaning of a ground of appeal given by the Supreme Court in the case of EHINLAWO V OKE (2008) LPELR 1054 (SC) states thus:
“It should be noted that a ground of appeal is the totality of the reasons why the decision complained of is considered wrong by the party appealing or the appellant or the aggrieved party”.

The grouse of the respondent here is that some of the particulars in support of ground 3 are argumentative and therefore offends Order 6 Rule 3 of the Rules of this court. The said provision states thus:

“The notice of appeal shall set forth concisely and under distinct heads the ground upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”

The offending portion of the particulars to ground 3 identified by the respondent are paragraphs 5, 6, 7, 8, 9, and 10. Ground 3 as reproduced above has 10 particulars and even if the objection of the respondent succeeds and paragraphs 5, 6, 7, 8, 9 and 10 are struck out, that would leave particulars nos.1, 2, 3 and 4 still supporting ground 3 and therefore the ground cannot be said to lack particulars that will make it liable to be struck out. In any case, as decided by the Supreme Court in the case of PROF ABE V UNIVERSITY OF ILORIN supra, defective particulars or lack of it does not render the ground defective and furthermore, there are other particulars that can explain and elucidate ground 3, the basis or the foundation of issue 2 formulated for determination in this appeal by the appellant.
Furthermore, the Respondent did not allege nor establish any miscarriage of justice that allowing the ground would occasion him. See the case of EKPEMUPOLO & ORS V EDREMODA & 5 ORS (2009) 3-4 S.C where the court held as follows:

“The aim of the whole exercise is to do justice between parties by hearing their appeals on the merit in spite of any mistake made by counsel in the preparation and prosecution of the appeal…….
The mere fact that a brief filed by an appellant did not comply with the rules made under Order 6 of the Court of Appeal Rules does not mean the appellant has filed no brief…… A court cannot dismiss an appeal simply because an appellant’s brief is faulty”.

Now moving on to the main appeal, the appellant formulated 2 issues reproduced above while the Respondent formulated 5 issues for determination. For a holistic consideration the issues distilled by the appellants shall be adopted by the court as the issues to resolve in this appeal because they are bigger questions which also cover the issues of the Respondent and in doing so the issues formulated by the Respondent shall also be considered.

ISSUE ONE:
This issue is distilled from grounds 1, 2, 4 and 5 of the grounds of Appeal. It questions whether the Appellants have established that they are owners of the land in dispute. In arguing the issue, counsel referred to the settled methods of proving title to land in the case of IDUNDUN & ORS V OKUMAGBA & ORS (1976) 9 – 10 S.C. 227 AT 248. He submitted that the appellants by their pleadings and evidence of CW1 proved ownership. He stated that the parties are bound by their pleadings relying on the case of NWAKOROBIA V NWOGU (2009) 4 – 5 S.C.144. He referred to paragraph 4 – 7 of the 4th amended Statement of Claim, paragraph 10 – 11 of the amended Statement on Oath of the CW2 and paragraph 5 – 11 of the statement of CW1. He contended that these paragraphs were admitted by the Respondent in his paragraph 5(b) of the Amended statement of defence and supported by paragraph 5(b) of Respondents evidence at page 36 of the record of Appeal, also the only witness of the respondent by his paragraph 6 at page 48 of the record. Counsel submitted that with the admission, the burden of proof has become light. He referred to section 19 of the Evidence Act on admission and relied on the case of NARIDEX TRUST LTD V NIMB LTD (2001) 4 S.C (Pt.1) 108 and CAPPA & D’ALBERTO LTD V AKINTILO (2003) 4 S.C (Pt 11) 1.
Counsel further argued that with the admission, the Respondent is expected to show that the appellants recognized him as overlord through the payment of traditional tribute and the respondent having admitted in cross examination that his family is not among the 38 land owing families that make Eti-Osa Local Government is further proof that the appellants had a better case.
Counsel argued that admission could operate as estoppels under part VIII of the Evidence Act and may be basis upon which judgment could be entered against the party who made it, he relied on the authority of M’KEWEN V. COTCHING (1857) 27 L.J. EX.41; SECTION 151 OF THE EVIDENCE ACT; JOE IGA & ORS. V. EZEKIEL AMAKIRI & ORS (1976) 11 S.C. 1 AT 12 – 13 AND SEISMOGRAPH SERVICE (NIG.) LIMITED V. EYNAFE (1976) 10 N.S.C.C. 434 at 439 on admission against interest. Counsel then submitted that the findings of the trial Court that the Appellant did not prove that their ancestors were settlers or founders of the land is erroneous and against the preponderance of evidence.
Counsel identified other acts of the appellants that proved title to Ajiwe village by recent facts of letting and sale of part of the land through Exhibits J – J9 and relied on EKPO V ITA 11 NLR 68 (1973) 3 S.C. 29 to support the submission that source of the acts of the Appellant are approved as a method of proving title provided they extend over a sufficient period of time.
Furthermore that recent possession was pleaded in paragraph 12 of the amended claim and evidence led in support. That the Respondent had always been aware of the possession of the Appellants without any disturbance until recently when the Respondent resorted to self help in the guise of enforcing a consent judgment which the Respondent pleaded but not tendered doing trial, he referred to pages 203 – 209 where the Court held that evidence led in respect of the judgment go to no issue since the judgments were not tendered.
Counsel relied on OKOROCHUKWU V. ETTI unreported judgment F.C.A/E/151/78 of 6th May, 1981 where the court held that there cannot be a better title than a man put a tenant on the disputed land for over 20years and such a tenant not disturbed. Furthermore, that a single act may be sufficient proof of title. He urged the Court to find that Exhibit J – J9 are sufficient acts of ownership and that the Respondent did not rebut the evidence, he relied as ELEMA V AKENZUA (2000) 6 SC (Pt. 111) 26 at 37 – 38.

On the Respondents claim to be the overlord, counsel submitted that Exhibits R5 has no relevance to this Appeal because it does not disclose the subject matter and the appellants are not parties in the case.
Furthermore the learned counsel argued that Exhibit G recognized Ogunsemo and Ojupon as ruling houses in Ajah with 10 compounds and Olumegbon was not mentioned in the said document. He argued that this fact was not rebutted nor disputed by the respondent and that Exhibit R5 binds the parties named therein as the appellants are not parties and the land in dispute was not in issue.
Counsel with respect to Exhibit ‘I’ the report of a tribunal of Inquiry into Ajah Land Disputes which was admitted by the trial judge but was not relied upon by the court pursuant to section 8 of the Tribunal of Enquiry law of Lagos State, cap T6 Laws of Lagos State, 2003 which prohibits the use of evidence taken under the law. He challenged the interpretation given to the said provision and relied on A.G OF BENDEL STATE V A.G. OF FEDERATION & ORS (1981) 12 NSCC 314 AT 395; ADISA V OYINLOLA (200) 6 S.C 47 AT 128; LAGOS STATE V A.G. FEDERATION (2004) 11 – 12 S.C 85 AT 98; ARAKA V EGBUE (2003) 7 S.C 75 AT 88; MOBIL OIL (NIGERIA) LIMITED V FEDERAL BOARD OF INTERNAL REVENUE (1977) 3 S.C. 53 AT 74. On the maxim expression unis est exclusion alterius meaning the expression of one thing is the exclusion of another, Counsel submitted that where a statute mentions specific things, the intention is that those not mentioned, are not intended to be included and he cited the case of THE ATTORNEY GENERAL OF BENDEL STATE & 2 ORS V AIDEYAN (1989) 9 S.C.127 AND EHUWA V ONDO STATE (2006) 11 – 12 S.C. 102.
Counsel submitted that the language of section 8 of the Tribunal of Inquiry law of Lagos State is clear and unambiguous and it should be given its meaning and effect, he then relied on the case of BALONWU & 5 ORS V. GOVERNOR OF ANAMBRA STATE & 33 ORS (2009) 12 S.C. ( Pt 1) 31 at 66- 67; TANKO V STATE (2009) 1 – 2 S.C. (Pt 1) 198 AT 231 AND FEDERAL MINISTRY OF HEALTH & ANOR V COMET SHIPPING AGENCIES LTD (2009) 4 – 5 S.C. (Pt 11) 110 AT 128-129. He argued further that the section did not bar the report from being used in subsequent proceedings as it affects or concerns evidence led at the inquiry. He submitted that the non release of a white paper should not bar the use of the report and therefore the reliance on section 8 by the court to exclude the report is wrong. Counsel argued that the parties willingly submitted to the inquiry and the report should therefore be used. Furthermore, that the appellants pleaded the findings and recommendations of the report and not the evidence, he referred to page 81 – 124 of the report. He challenged the court’s reliance on the authority of GOVERNOR OF OYO STATE & ORS V OLOLADE FOLAYAN (1995) 8 NWLR (Pt 413) 292 AT 328 and 330 to discountenance the report.
Learned counsel contended that the trial court failed to appreciate that the judgment relied upon by the respondent binds the parties named in the judgment and that Ajiwe community was not mentioned and therefore the forceful ejection and demolition by the respondent in the guise of enforcing the judgment was extrajudicial effort. He relied on KANO STATE URBAN DEVELOPMENT BOARD V FANZ CONSTRUCTION CO. LTD (1990) 6 S.C. 103 AND OGUNBADEJO V OTUNBA OWOYEMI (1993) 1 NWLR (Pt 271) 517 to urge this court to find that the exclusion of the report affected the outcome of the case and it should be reversed as the court is under a duty to consider all relevant evidence. He cited the following cases: FAGUNWA V ADIBI (2004) 7 S.C. (Pt.11) 99 AND IGBODIM & ORS V OBIANKE & ORS (1976) 9-10 S.C. 105.
On whether a court could expunge a document rightly admitted in evidence, counsel submitted that when the decision to admit is not a nullity the court cannot expunge the document, he relied on CHUKWUMANJO V UDEAYA (1990) 1 NWLR (Pt 125) 210 – 211. On the binding effect of a consent judgment counsel relied on VULCAN GASES LTD V MADAM ADESEYE (1972) 1 ALL NLR (Pt 2) 255.
On Exhibit O19, a letter which allegedly confers over lordship on the respondent counsel submitted that it relates to a different subject matter and in any case a mere letter cannot confer title over land and more so the Land Use Act vest title over all land in the state on the Governor of the state and it is therefore a repugnant concept to still cling onto over lordship which has since gone into oblivion. He urged the court to find for the appellants under this issue.

The respondent’s counsel addressed this issue under his issues A, B, D and E they shall be taken together. Starting from issues A and B, Counsel submitted that the court and parties are bound by the pleadings, he relied on ADETOUN OLADEJI (NIG) LTD V NIGERIAN BREWERIES PLC (2007) 3 MJSC 29 at 52 and that pleadings do not constitute evidence as held in the case of IFETA V SHELL PETROLEUM DEV CO. LTD (2006) 7 MJSC 121 AT 129 and ARAMAMBI & ANOR V ADVANCED BEVERAGES IND. LTD (2006) 3 MJSC 61 at 89-90. On the effect of evidence at variance with pleadings and unchallenged evidence he relied on EMEGOKWUE V OKADIGBO (1973) 1 NMLR 192 at 195 and OWNERS OF M/V GONGOLA HOPE V SMRFIT CASES NIG LTD (2007) 9 MJSC 95 at 107. Counsel for the respondent contended that it is not the rule that unchallenged or uncontradicted evidence would automatically entitle a claimant to judgment because the evidence adduced must be relevant to the facts pleaded and issues joined. He relied on NWOGO & 7 ORS V NJOKU & 3 ORS (1990) 3 NWLR Part 140, 570 at 581 and EHIMARE & ANOR V. EMHONYON (1985) 1 NWLR Part 2 112 at 183 on the principle that cases are decided on the balance of probabilities.
Counsel further identified what he alleged are contradictions in the evidence of the two witnesses called by the Appellants and also identified key words used such as grant, founder/settlers and gave the dictionary meanings of the words. He submitted that it is the primary duty of the Court to assess evidence and ascribe probative value, he cited the case of MINI LODGE LTD & ANOR V NGEI & ANOR (2009) 12 MJSC (PART 1) 56 AT 72. He further argued that the trial judge did what was expected and relied on OLALOMI LTD V N.I.D.B (2009) 7 MJSC (Part 3) 136 at 173.
Counsel contended that the respondents case was that Appellants are customary tenants to the Ogunsemo family which has Olumegbon family as overlord as per exhibit R 8 and that there is material contradiction in the appellants case as the Appellants contended that they came on the land by grant and on the other hand by original settlement, he cited the case of WACHUKWU & ANOR V ONWUNWANNE & ANOR (2011) Vol. 5 (Part 2) MJSC 87 at 110. Learned counsel submitted that a claimant seeking for declaration must present cogent and reliable evidence as held in the cases of EZEIGWE V AMOGU (2008) Vol. 8 MJSC 61 at 25 and BELLO V EWEKA (1981) 1 SC 101 at 102.
He further argued that burden of proof does not shift until the claimant has successfully discharged the onus upon him and there is no declaration without argument as held in the case of DIM V EMEMUO (2009) 4 MJSC (Part 1) 152 at 174. Also that the claimant must show the land he claims and the failure to tender the survey plan is fatal to the case of the Appellants, he relied on UDOFE & 2 ORS V. AQUSISUA & 2 ORS (1972) 1 SC 119 at 130; SECTION 133 (1) EVIDENCE ACT, 2011, DANTATA & ORS V MOHAMMED (2000) 7 NWLR (Part 664) 176 at 176, 197 and 204.
Respondent’s issue D is on the question of over lordship, he submitted that over lordship was an issue going by the pleadings of the Respondent at the trial Court and that the trial Court after evaluating the evidence rightly arrived at the correct findings that Olumegbon is the overlord of Ajah which would form the basis for a plea of ‘estoppel’ as opposed to ‘Res Judicata’ and that exhibit 019 of the Appellants made the excision subject to the Respondents over lordship of Ajah.
On the Tribunal of Inquiry Law of Lagos State Cap – T6 Laws of Lagos State, 2003, learned counsel relied on the case of the GOVERNOR OF OYO STATE & 2 ORS V OBA FOLAYON (1995) 8 NWLR (PT 413) 292, 311, 328 AND 330 to argue that report of the Commission of Inquiry is not legally binding on the Court since the Government has not accepted the recommendations.
Counsel contended that the case of KANO STATE URBAN DEVELOPMENT BOARD V. FANZ CONSTRUCTION CO. LTD (1990) 11 NWLR PT 142 t at 38 is not relevant as it did not consider a report of a commission of Inquiry but a report from a firm of quantity surveyors. That therefore the report must first be accepted by Government before it becomes binding. He relied on ANJOKU & ANOR V NNAMANI 14 WACA 357 at 359 and NWABIA V ADIRI & 3 ORS (1958) 3 FSC 112 at 114.

RESOLUTION:
This issue question whether the appellants proved title to the land in dispute. The trial court was right in restating the 5 methods of proving title to land as settled in the case of IDUNDUN V OKUMAGBA (1976) 10 SC 227; AYOOLA V ODOFIN (1984) 11 SC 72 and DABO V ABDULLAHI (2005) 7 NWLR (PT 923) 181. The methods are:-
(a) By traditional evidence
(b) By documents of title
(c) By various acts of ownership numerous and positive, and extending over a length of time as to warrant the inference of ownership
(d) By acts of long enjoyment and possession of the land
(e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition, be the owner of the disputed land.
Proof of title can be by one or more of the methods settled above, see UGWUNZE V ADELEKE (2005) 2 NWLR (PT 1070) 148 at 176 – 177.To determine the method adopted by claimant recourse must be had to the pleadings. Here the trial court found only the traditional method of proving title but on a closer examination there were 2 methods pleaded. The second method is Government grant through Exhibit K. The trial court identified the two methods but considered only the traditional history. The questions to ask is whether the excision in a gazette duly registered satisfies the second method of proving title to land. Instrument of title has been defined as:
“a document affecting land in Lagos State whereby one party confers, transfers, limits, charges or extinguishing in favour of INCORPORATED TRUSTEES OF KWAMO DEVELOPMENT TRUST V A.G. LAGOS STATE (2010) LPELR – 4307 (CA).
The case of AKINDURO v ALAYA (2007) 15 NWLR (PT 1057) 312 also considered instrument of title under the Land Instrument Registration Law, Lagos State and defined instrument of title as a document affecting land in the State whereby one party usually called grantor confer, transfers, limits, charge or extinguishes in favour of another party called the grantee any right or title to, or interest in the state. So therefore, the gazette excising land back to Ajiwe village indigenes is an instrument of title. A claimant who desires to prove title by documents of title is expected to also trace the root of his grantor as someone who has the right and capacity to grant him authority over the land, see ODOFIN V AYOOLA (1984) LPELR 2227 (SC) and LAWSON V AJIBULU (1997) LPELR – 1766 (SC) where the court had this to say:-
“Production of title document alone is not sufficient, he must go further to trace his root of title to one whose ownership of the land has been established.”Here the appellants traced their root of grant to the Lagos State Government by the excision which was duly gazetted. Lagos State Governor under the Land Use Act owns all the land in the State which he holds on behalf of the people of Lagos State and it includes all the parties in this appeal. By virtue of the Land Use Act the Governor of Lagos State has the right and capacity to make the grant. I agree with the appellant’s counsel that the grant is an entirely new root of title which is not rooted in the Respondent or Ogunsemo family, this the trial court also found. The argument of Respondent’s counsel that the excision restored all customary rights including the over lordship of the Respondent is not tenable and a misconception of the Law.
It is trite that mere production of document of title does not necessarily carry with it automatic relief of grant of declaration relating to such Land, certain factors must be taken into account in the consideration. The Supreme Court in the case of DABO V ABDULLAHI (2005) LPELR 905 (SC) had this to say:-
“Admittedly the production of documents of title is one of the recognized methods of proving title to land, see IDUNDUN V OKUMAGBA (1976) 0 – 10 SC 227 at 246; PIARO V TENABO (1976) 12 SC 31 at 37. But such a document of title must be admissible in evidence and be of such a character as to be capable of conferring valid title on the party relying on it. Discussing the nature and character of such a document of title, this court in the case of ROMAINE V ROMAINE (1992) 4 NWLR (PT 238) 650 at 662 observed thus:- “I may pause here to observe that one of the recognized ways of proving title to land is by production of a valid instrument of grant: see IDUNDUN V OKUMAGBA (1976) 9 – 10 SC 227; PIARO V TENALO (1976) 12 SC 31 at 37; NWACHI V IBEKWE (1987) 4 NWLR (PT.67) 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance on such an instrument it inevitably comes with the need for the court to inquire into some of or all of a number of questions:

The answers to these questions cannot be far fetched. The excision was gazetted, it is genuine and valid as admitted by the Respondent. It is a public document. It was tendered without any objection and in fact the Respondent in his brief of argument acknowledged the gazette and the fact of excision which he submitted they are not challenging. It was the effect of the excision that they challenged. The gazette is a Government instrument which was duly numbered and registered in the State. The Governor of Lagos has the unfettered authority under the Land Use Act to make the grant i.e. excision to the respective villages covered by Exhibit K. He also has what he purported to give to Ajiwe village indigenes and by that the indigenes of Ajiwe can claim the land and can be entitled to a certificate of occupancy on the basis of the gazetted excision. More so, the apex court in the case of GBADAMOSI & ORS V AKINLOYE (2013) LPELR 20937 (SC) confirmed the finding of this court that a person in whose interest an excision was made is entitled to a right of occupancy over the land covered by the excision. That principle also applies here. The indigenes of Ajiwe village are entitled to evidence of title in the form of right of occupancy or certificate of occupancy over the land excised and given to them. The Respondent did not challenge the excision to say that it should have been to him and not to the indigenes of Ajiwe village. Having not taken that step and his own interest having been swept away by the compulsory acquisition he can no longer claim to be the owner of Ajiwe village.
Respondent contended that the appellants did not tender the survey plan of the land called Ajiwe village, the question is which better survey plan can anybody have describing the land called Ajiwe village other than the bearings and beacon numbers listed in the gazette upon the excision? That description clearly delineated the land called Ajiwe village and in any case the Respondent did not transverse on the issue of the exact land called Ajiwe village. Having not joined issues nor traversed on the exact area called Ajiwe village, he is barred from raising that issue at this stage, it was not in contention between the parties. See the case of ABODUNRIN V ARABE (1995) 5 NWLR (Pt.393) 77 at 89 where the Court held as follows:-
“Where the identity of Land is not disputed and not joined as an issue in the pleadings, no evidence need to be led in proof thereof”.

Where therefore as in this case the identity of Ajiwe village is not in issue or disputed as an issue in the pleadings there is no need for a survey plan to show the identity of the land claimed, See also EZEUDU V OBIAGWU (1986) 2 NWLR (Pt. 21) 208.
It is not in all cases that a surveying plan is a Sine Qua Non in ascertaining the land in dispute, See IDEHEN V OSEMWENKHAE (1997) LPELR 1417 (SC) where it has been settled that the identity of land in dispute will only be in issue where the defendant in its statement of defense, specifically disputes the description of the land given in the plaintiff’s statement of claim, see ADENLE V OLUDE (2002) 9 SCNJ 94; ETIM V UMOH (2014) LPELR 22730 (CA) and ADELUSOLA V AKINDE (2004) ALL FWLR (Pt.218) 776.
The appellants challenge to the court’s refusal to use or rely on the report of the commission of inquiry is a misunderstanding of the law. Admissibility of a document is different from weight to be attached to the document.
It has been settled by the Supreme Court in a plethora of cases that admissibility is one thing while weight is another, see ABUBAKAR V CHUKS (2007) LPELR 52 (SC) where the apex court explained the difference in the following way:

“The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence. Relevancy and weight are in quite distinct compartments in Nigeria’s Law of Evidence. They convey two separate meanings in Nigeria’s adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of law of Evidence, relevancy comes before weight. Relevancy, which propels admissibility, is invoked by the trial judge immediately the document is tendered. At that stage, the judge applies section 6, 7 and 8 and other relevant provisions of the Evidence Act to determine the relevancy or otherwise of the document tendered. If the document is irrelevant, it is rejected with little or no ado. Weight comes in after the document has been admitted. This is at the stage of writing judgment or ruling as the case may be. At that stage, the judge is involved in the evaluation of evidence vis-a-vis the document admitted. While logic is the determinant of admissibility and relevancy, weight is a matter of law with some taint of fact.” Per Tobi JSC.
See also the case of SAEED v YAKOWA & ANOR (2012) LPELR 7835 (SC).
The court admitted the report but placed no weight because of a legal bar to the use of the report. That action of the trial court cannot be faulted. The report Exhibit I having not been accepted by government and the law under which it was made barred its use, it cannot be used or relied upon by the court to ground a finding. It is a standard practice that Reports of commission of Inquiry be first accepted and the Government’s position is reflected in a white paper which is gazetted and it becomes a public document that can now be used in a court. The said Exhibit I here is not in that form and having not acquired Government’s legitimacy, the trial judge cannot be faulted in that regard, see ABDULLAHI V HASHIDU
(1999) LPELR – 6504 (CA) AND THE GOVERNOR OF OYO STATE & 2 ORS V OBA FOLAYAN (1995) & NWLR (PT.413) 293 AT 311). The evidence which by law cannot be used in a proceedings and the refusal to evaluate and use the report by the trial court is the correct position. The argument of the Respondent on this point is the position of the law. It is also erroneous of the appellants to contend that the trial judge expunged the report. All it did was not to place any weight on the report.
The findings of the trial court on over lordship has nothing to do with proving the claim of the appellants by instrument or grant. It can be relevant if the only method pleaded were traditional history. The trial judge did find that appellant’s evidence in proof of traditional history was contradictory. Now to the issue of whether the Appellants prove title by traditional history. As observed earlier, the trial court found that the Appellants failed to prove title by traditional history. The learned trial judge diligently reviewed the law and practice of proving title by traditional history. The trial court found that the claimants were not consistent in their narration of the history of how their progenitors settled on the land and this offends the principle that evidence at variance with pleading goes to no issue, see ADEMESO V. OKORO (2005) 6 SC (PT 1) 51 at 58.
The trial court referred the evidence of claimants and found contradictions. That is the court with the responsibility of evaluating facts and observing witnesses to determine their credibility. It is difficult to interfere with the findings of a trial court except if it is perverse. Upon the trial court’s finding that the Appellants in one breath said they were not tenants and did not get on to the land by grant but were original settlers while in another breath they said Ogunsemo family gave them the land to settle on. Secondly the court found that the number of years they had been on the land was not settled as one witness said 500 years ago while another said 250 years ago. This affected the quality of evidence required because it is contradictory. It is deficient to prove title by traditional history as found by the trial court. It is settled that in proving title by traditional history that a claimant traces his roots to the first person who settled on the land. This was not done.
However, the claimants did establish their being on the land and how they exercised acts of ownership by selling and leasing out parts of the land. This was evidenced by various receipts tendered as Exhibit J – J10. These are documents which speak for themselves, they were supported by oral evidence and therefore the court was wrong not to rely on them to find that the claimants have exercised acts of ownership on the land. The argument of Respondent that the beneficiaries must be called to confirm is not a legal requirement. The documents speak for themselves. The documents are clear evidence that the claimants family sold and leased out portion of the land and that alone is enough to give credence to the claim that they own the land. Then if they were tenants, they have grown to be masters of themselves, because the acts of farming, selling and leasing land spanned a long period of time. There was no rebuttal of that evidenced by the Respondent. The standard of proof in civil matters is on the preponderance of evidence and in this case the various acts of ownership exercised over the land and over a period of time clearly out weighs the evidence of the Respondent and therefore the trial court should have found that the claimants proved title by various acts of ownership on the preponderance of evidence. I find for the claimants here.
The appellants having proved its claim for title under instrument of title, they are not under any obligation to prove it by traditional history or any other method.
Stretching the argument of the trial court and the Respondent that the appellants had no land in Ajiwe village except Budo farms, one may then ask if they have no roots in the village how come they owned some land in Budo Farms? In any case, that land was to Ajiwe family and not Ajiwe village which is open to all indigenes of Ajiwe village. Here the argument of the respondent can be contested because Appellants owned land as part of Budo farm, which is not by grant or purchase, it means they have roots in Ajiwe village to warrant them suing in a representative capacity on behalf of Ajiwe village indigenes. In fact the Respondent acknowledged then as tenants of Ogunsemo family who were settled in Ajiwe village.
On this issue, I find that the appellants proved title by the excision which gave them a new title by grant. The judgment of trial court on this point is hereby set aside. I find for the appellants under this issue that they are entitled to a declaration over the land known as Ajiwe village in a representative capacity.

ISSUE 2
Arguing issue two which is asking whether there was an excision and if yes in whose favour? Counsel submitted that the Appellants pleaded as per paragraph of the amended claim that official Gazette No. 9 vol. 29 of 28th March 1996 excised a total of 21.866 hectares of land known as Ajiwe village to the Appellants and the averment was supported by evidence at page 11 of the record of Appeal which was not controverted by the Respondent. He argued that parties agreed that all former interest or rights over the land stood revoked. That appellants established how their forefathers settled on the land by grant from the Ogunsemo family but the trial judge failed to take note of the pleadings that they applied for and were granted the excision of Ajiwe village as per paragraph 9 of the 4th amended statement of claim at page 4 of the record of Appeal and defended under cross examination at page 154 – 155 of the record of Appeal. That the trial Court having found that when Lagos Government acquired the land, all previous interests were extinguished and since the excision had not been challenged the trial judge was wrong to conclude that the claimants contention that the excision was to claimants family was not supported by Exhibit K being the document the Government issued to release the land. Counsel argued that the trial judge went outside Exhibit K to find contradiction in the fact that Ajiwe Village was not released to the appellants by importing Exhibit O9 which relates to a different subject matter at page 363 of the record. That the trial Court refused to follow the decision of this Court in the case of MAJOR MURITALA GBADAMASI (RTD) & ORS V H.RM OBA TIJANI ADETUNJI AKINLOYE & ORS unreported Appeal No. CA/I/61/2001) where it was held that notice of revocation is valid and subsisting unless challenged by the person affected. And, that the respondent denied the excision but never challenged it. Furthermore, that the Respondents claim that the fact of his overlord was hid from the Lagos State Government cannot be basis for the trial Court to find that Respondent was overlord when he failed to challenge the excision which ousted his over lordship. Counsel argued that the respondent hereof having denied the excision, he cannot be permitted to take benefit from it as allowed by the trial judge even when the Court found that the excision was not challenged by anybody. Counsel contended that the case of Major Muritala (supra) has finally settled the issue of overlord, an issue which did not even come up for determination before the trial Court but weighed heavily on the mind of the Court.
Counsel submitted that Exhibit K effectively restored the rights of the Appellants to the land by the excision as also decided in the case of Gbadamosi (supra) which by virtue of an excision he got a statutory title over the land covered by the excision. He finally urged the want to find for the Appellant.
The Respondent in reaction argued this issue under his issue C of the Respondents brief. Counsel submitted that Exhibit B is the same as Exhibit K and it covers an area of 21.886 hectares of land with defined boundaries while the claim is for 23.43 hectares of land forming Ajiwe village excision to non identified person. Counsel submitted that Exhibit K is a public notice that the land reverts to original customary holders before its acquisition and the respondent’s unextinguished customary right was therefore revived as per Exhibit 019 addressed to the appellants. He contended that Exhibit 019 was confirmed by the judgment of the Supreme Court in SC.148/1997 delivered on 9/12/2002, Exhibit R5. Counsel admitted that there is no challenge to the excision of Ajiwe village as parties revert to status quo ante as per section 36(2) Land Use Act 1978.
On the issue of admissions, counsel argued that the case of the Appellants was contradictory and that the Appellants are not challenging the finding that the appellants have no other land outside Budo farm as no ground of Appeal touches on it, he cited the case of ONAFOWOKAN & 2 ORS V WEMA BANK PLC & 2 ORS (2011) Vol. 5 – 7 (Part 11) MJSC 1 at 37 to argue that reading an exhibit on the direction of the Court is not an admission of facts read out.
He furthers argued that no evidence of recent acts was tendered because Exhibit J – J9 are spurious as some are not dated nor signed and therefore there is no evidence that the Appellants had tenants on the land.
Counsel contended that families can have descendants not village and that the Appellants were tenants themselves. That the Respondent has a better title and cited FASORO V BEYIOKU (1988) 2 NWLR (Pt 76) 263 at 274 and relied on Exhibit 019; R4; R5 and R8
Counsel on consent judgment submitted that it is binding on parties and on those who claim through them, he cited the cases of DANIEL TAYLOR TRANS ENT. NIG. LTD B. BUSARI & ANOR (2011) VOL. 1 (Part 1) MJSC 5 at 76 and WOLUCHEM v WOKOMA (1974) 3 SC 153 at 168.
He further submitted that Exhibit G is a chieftaincy declaration of Ajah and who under Exhibit R4 must be capped by the Olumegbon before performing his duties. He discountenanced the arguments of the appellants under this issue.

RESOLUTION

Issue 2 asked whether there was an excision and if yes, in whose favour? The trial court did find that there was an excision. The appellant pleaded the fact of the excision which was officially gazetted as No.9 Vol.29 of 28th March, 1996 which covered a total area of 21.866 hectares of land Known as Ajiwe Village. This was not contested by the Respondent in his evidence before the trial court. The contention here is fundamentally as to whom was the excision done. The gazette, Exhibit K, and is a notice of excision of villages from Lagos Government’s revocation within the Lekki Peninsula within Eti-osa Local Government Area. The preamble acknowledged the previous acquisition of the entire area of land covering 823 square Kilometres wherein the right of occupancy over the land was revoked pursuant to the section 28 of the Land Use Act and upon the agitation of the indigenes and traditional rulers of certain towns, villages and settlements affected by the revocation before excision, the government recognized the need of the indigenes of these towns, villages and settlements affected and excised certain villages and settlements described in the schedule to the gazette. Ajiwe Village excision is one of those mentioned covering an area of 21.886 Hectares with delineated boundaries clearly stated. The appellants by their pleading at paragraph 9, averred that the excision covered by Exhibit K was to the claimants. The claimants had by paragraph 3 & 4 of the 4th Amended statement of claim pleaded that the 2 claimants are indigenes/descendants of Ajiwe Village and that the claimants are joint custodians of the proprietary rights of the indigenous people of Ajiwe Village. The claimants also averred to their being in possession of the land before and after the excision and in response the Respondent who was the 2nd defendant at the trial court pleaded at paragraph 5(d) & (e) thus:-
5(d) there was never any excision to the claimants. If at all the purported excision to the claimants is in effectual in law as the family was at all material times the over – lord of Ajah and its environs and Okun-Ajah. The claimants deliberately concealed from the Lagos State, Government the fact that the family was their over lord in respect of Ajah and its environs.
5(e) the claimants were never in possession as therein alleged nor was these any structure on the said as alleged or at all.”

Issues were therefore joined on the excision to the claimants. As observed from Exhibit K, the excision was pursuant to agitations from indigenes and traditional rulers of those areas covered by Exhibit K. Of course, it did not name a person but indigenes, these are people and traditional rulers are also people. The trial court rightly found for the excision but that it was not to the claimants. Who then are the claimants? Do they fit into those in whose favour the excision of Ajiwe Village was made? Both claimants averred who they are in their 4th Amended Statement of Claim and provided the evidence to the fact that 1st claimant is the traditional ruler (the Baale) of Ajiwe Village and 2nd claimant is one of the indigenes of Ajiwe Village and the surviving head of Ajiwe clan.
The burden of proof in civil cases oscillates and it is not static as in criminal cases, it first starts with he who asserts. A claimant has the first duty to prove his assertion failing which that pleading is unproved, see the case of ATTORNEY GENERAL OF KWARA V OLAWALE (1993) 1 SCNJ 208. The claimants having presented evidence that they come within the contemplation of the excision, the burden shifts on to the Respondent. Going by the record of appeal, the Respondent in his evidence stated that Ajiwe clan derived title to the land from Ogunsemo family and Ajiwe is part of Ajah. That claimants were never owners and were never in possession as they do not own houses in Ajiwe. He further admitted that he knew of the excision and did not challenge it because Ajiwe village was customary tenants of the Ogunsemo and Ajiwe has a Baale who is capped by the Baale of Ajah and therefore Ajiwe is a Village under Ajah.
His witnesses claimed they all moved from Moroko to Ajiwe after Government demolished Moroko and that the claimants were Labourers to the Olumegbon. Furthermore, the said Olumegbon told them he is the over lord.
From the above recapping of the evidence, the fact of claimants being indigenes of Ajiwe was challenged more by those who moved from Moroko to Ajiwe. The Respondent admitted their existence but as tenants of the Ogunsemo family. He admitted theft is a Baale for Ajiwe and that Ajiwe was part of Ajah, who then are the indigenes, if the claimants are not, he did not say but stoutly claimed he is over lord of Ajah and therefore by implication, the over lord of Ajiwe. There is however no evidence of the payment of tribute to him or to Ogunsemo family. One of the witnesses to the Respondent admitted that he met the father of the 2nd claimant in Ajiwe. The Respondent told the trial court that the claimants lived in Ajah and not Ajiwe. Therefore the fact of 1st claimant being the traditional ruler of Ajiwe has not been disproved neither the fact of 2nd claimant being an indigene of Ajiwe was disproved. The fact of Ajiwe being customary tenants to Ogunsemo family does not remove the fact of the existence of Ajiwe Village with people amongst whom are the claimants. More so, the chieftaincy of Ajiwe had been officially recognized. The evidence of the 1st claimant was not rebutted on this fact.
The argument of the appellants is that the land having previously been acquired by Government, extinguished all previous rights over the land, a fact also found by the trial court. It therefore means that the alleged right of the Respondent also went away upon that acquisition. See the case of MRS OLUFUNMILAYO AKIBOYE & ANOR. V ISHOLA ADEKO (2011) LPELR – 4551 (CA) where the court held as follows:-
“It is beyond doubt that once there is a compulsory acquisition of land the title of the former owner becomes extinguished by the reason of the acquisition and when the acquired land or part of it is returned as in this case, a new root of title by grant will be created. It is the decision of the Apex court that land which is under acquisition, cannot be validly sold by its original owner, see YUSUF V OYETUNDE (1998) 12 NWLR (PT 579) 483.”
This means therefore that the compulsory acquisition of the 823 square kilometers of land in the Lekki Peninsula area by Government of Lagos State had extinguished the previous rights of both claimants and Respondent to the land. That furthermore, the excision of several villages including Ajiwe village has created a new root of title for the people of Ajiwe village and those other villages and therefore the issue of having their root of title traced to Ogunsemo and or Olumegbon is uncalled for and in effective as those roots are gone with the acquisition and the root of Ajiwe village is now rooted in the Government of Lagos State.
The next point to consider is whether the claimants are indigenes of Ajiwe village. We need to know the definition of indigene. Dictionary.com defines it as a person or a thing that is indigenous or native and in the colloquial sense it means somebody native to a place or born in a place. The question is whether the claimants proved that they are natives of Ajiwe. The evidence in support of the claimants case is that they are indigenes of Ajiwe, this was denied by the Respondent. His witnesses said they got to Ajiwe before the claimants and one said he met 2nd claimant’s father farming in Ajiwe. The 1st claimant is the traditional ruler of Ajiwe and there is no rebuttal evidence on this point. The lack of weight of the evidence of all Respondents stem from the fact that the Respondent told them he owns the land and therefore what they said, is hearsay and a recent development since it was only when Moroko was demolished that they moved to Ajiwe. The Respondent himself told the court that claimants don’t live in Ajiwe even when he admitted they are tenants of Ogunsemo family. If tenants where do they reside?
There is a distinction between residency and indigeneship. One can be an indigene of a place but not resident there and one can also reside in a place and not be indigenous to it. On this score, the trial court erred when it held that the excision was not to the claimants after finding that there was indeed an excision. The gazette says to indigenes and that is not a single person’s name that the names of the Appellant can be said not to correspond. Indigenes is a group of people who are natives to Ajiwe. Because it is a grant from Government, it must not necessarily be to the original owners of the land but could be to strangers and in this case it was to the people who are native to Ajiwe. The claimants are native to Ajiwe and on this issue I find for the appellants.
Flaming from the above resolution of issues one and two in favour of the Appellants, the appeal succeeds and the judgment of Hon Justice B.A. OKE-LAWAL delivered on the 2nd February, 2012 is hereby set aside. The Appellants proved that they are entitled to a declaration of title over the land excised to Ajiwe village indigenes by the Lagos State Government. The claim of the appellants succeeds and therefore, a declaration is hereby made that the land measuring 21.886 hectares of land which is the land area covered by the excision belongs to the claimants to hold same in trust for the descendents of Ajiwe village. A perpetual injunction restraining the Respondent from encroaching on the land and doing such acts of selling, building, developing any part thereof without the consent and permission of the appellants; again a perpetual injunction restraining the Respondent his agents, servants, assigns, successor in title or anyone whosoever, claiming through, by or for him from trespassing on the appellants land and from disturbing the appellants from peaceful and quiet enjoyment of their excised land.
The appeal succeeds. Cost of =N=50,000.00 to the appellants.

AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Nimpar, JCA, and I agree with his reasoning and conclusion. He said all there is to say in the matter, and I have nothing useful to add regarding the appeal but I will say a few words on the objection to the Grounds of Appeal. The essence of ground of appeal is to avail the other party of the nature of the Appellant’s complaint in words that are not vague, and the purpose of particulars of error is to elucidate and advance reasons for the complaints in the grounds of appeal – see Abiodun V. FRN (2009) 7 NWLR (Pt.1141) 489. In other words, particulars of error highlight the complaint against the judgment on appeal – see Diamond Bank Ltd. V. P.I.C. Ltd. (2009) 18 NWLR (Pt.1172) 67 and Amuda v. Adelodun (1997) 5 NWLR (Pt.506) 480 SC, where Adio, JSC, observed that –
“The law is that the particulars and nature of the error or misdirection alleged in relation to a ground of appeal should be the specific reasoning, findings or observations in the judgment or ruling in question relating to the error or misdirection complained of. They should be the enumeration of the error or misdirection in the judgment or Ruling”.
See Aderounmu V. Olowu (2000) 4 NWLR (Pt.652) 253,wherein it was held –
“The rules – – are primarily designed to ensure fairness to the other side – – The prime purpose of the rules – – that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal; and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information, to the other side of the precise nature of the complaint of the Appellant and – – of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form”.

In this case, the Respondent’s objections to the Appellant’s grounds of appeal clearly lack merit, and at the end of the day, I also overrule the said Objections, and also allow the appeal. I also abide by the consequential orders in the lead Judgment including the order on costs.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft copy of the judgment delivered by my learned brother Hon Justice YARGATA B. NIMPAR and I entirely agree with the reasoning and conclusions reached in therein except to add that section 28(1)&(7) of the land use Act Cap 202 1978;

1) “It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.

7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under sub section (6) of this section or on such later date as may be stated in the notice.

Therefore the Act has assigned to the Governor absolutely the ability to determine when a deprivation of a citizen’s right in land was reasonably necessary for public purpose, it is the automatic process of expropriating the land of a holder or occupier [whether customary or statutory,) with the effect that the right of occupancy existing on such land would stand extinguished.
In this matter, both parties agree that indeed there was a revocation and later an excision by the Lagos State Government which was duly gazetted; in law this created a new root of title to the said land. The Respondent traced their title to the original settler history but the Appellants traced same to the excision title which was released to them, the Respondents did not challenge this neither did they protest the earlier acquisition.
There was accepted evidence by the court that the appellants had applied for and were granted an excision as contained in Exhibit K-gazette No 9 Vol 29 1976 in their favour.

The Respondents title if any had gone with the Revocation, while the excision created a fresh root of title in the Appellants, the Respondent had waived their rights and are estopped from contending ownership, having slept on their rights if any see YUSUF V OYETUNDE (supra) at page 493, par D-E UWAIS CJN held as follows;

“It is significant that when the land of the Samologbe family was compulsorily acquired, the title of the family on the land became extinguished by reason of the acquisition-see section 28 subsection 7 of land use Act Cap 202. When a portion of acquired land was returned to the family, a new root of title by grant was created by the western state Government for the family.”

See also GBADAMOSI V AKINLOYE 2013 35 NSCQR 75

For the above reasons and those contained in the lead judgment, I too allow the Appeal and also set aside the judgment of the Lower court, I abide by the orders on cost.

Appearances

Gbenga OjekunleFor Appellant

AND

Alaba OkupeFor Respondent