CHIEF ADEMUAGUN OPOTO & ORS v. CHIEF PETER ADEBISI ANAUN & ORS
(2015)LCN/7886(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of June, 2015
CA/EK/49/2014
RATIO
LAND LAW: TITLE TO LAND; WAYS OF PROVING OWNERSHIP OF LAND AND WAYS OF ACQUIRING TITLE TO LAND
The settled position of law as enunciated in a litany of cases is to the effect that while there are five ways or methods of proving ownership to land in this country, title to land can however be acquired by various and diverse means. In this regard see amongst many others, the case of ADISA V. OYINWOLA (2000) LPELR – 186 (SC) wherein the Supreme Court per Ayoola, JSC; said on pages 42-43 thus: –
“…… The several ways in which title to land can be acquired should not be confused with the several ways in which such acquisition can be proved. The much cited case of Idundun & Ors v. Okumagba & ors. (1976) Vol. 10 NSCC 446 deals with ‘five ways in which ownership of land may be proved’ and not the ways of acquiring title to land. In short Idundun & ors. v. Okumagba & Ors deals with matters of evidence rather than question of substantive law of acquisition of title. It is for this reason that acquisition of title by gift, grant, or purchase was not mentioned. Also, the principle in Kojo II v. Bonsie (supra) relates to facts which the court should advert to in coming to a conclusion on the probability of evidence of tradition. Where, as in the present case, the plaintiffs rely on acquisition of title by grant, proof of such grant by traditional history arises only where the fact of grant was so ancient as to be beyond the memory of living witnesses. Facts which are within living memory are properly to be proved by evidence of living witnesses to the event and not by evidence of tradition permitted by section 45 of the Evidence Act. (See Commissioner of Lands v. Kadiri Adigun (1937) 3 WACA 206). The title relied on by the plaintiffs was one by grant in 1940. The 6th plaintiff witness gave evidence that he was alive when his father helped in partitioning the land and that he knew the extent of land partitioned to the Ikolaba Chieftaincy family. He said that “After the Yokolu crisis, Budo Toolo was assigned to Ikolaba for the purpose of collecting tributes” thus lending some support to the defendant’s case as to the effect of the exercise which took place in 1940 which have been variously described as allocation, assignment, and partition”
Suffice it to say that the Supreme Court reiterated the position expressed above in the case of AJIBOYE V. ISHOLA [2006] All FWLR (Pt. 331) 1209 at pages 1229 – 1230 whereat Onnoghen, JSC; stated thus: – “It has been settled by long line of authorities from this court, that ownership to title to land may be proved by any of these five methods, viz:
(a) By traditional evidence;
(b) By production of documents of title, which are duly authenticated;
(c) By acts of selling, leasing, renting out all or part of the land, or farming on it, or portion of it;
(d) By acts of long possession and enjoyment of the land; and
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute; see Idundun v. Okumagba (1976) 9-10 SC 227; Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31; section 46 of Evidence Act, 1990.
It must however be noted that the above five methods deal with the means by which title to land can be proved in a court of law. The said methods have nothing to do with the mode of acquisition of title to land which may be by:
(a) First settlement on the land and deforestation of the virgin land;
(b) Conquest during tribal wars;
(c) Gift;
(d) Grant – customary;
(e) Sale;
(f) Inheritance, etc, etc.”
See also the case of ADESANYA V. ADERONMU [2000] FWLR (Pt.15) 2493 wherein the Supreme Court held amongst others to the effect that in a claim for declaration of title to land, the court must be satisfied as to (i) the precise nature of title claimed i.e. whether it is title by original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise; and (ii) evidence establishing the nature of title claimed. per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
EVIDENCE: PROOF OF TRADITIONAL EVIDENCE OF TITLE; WHAT THE PLAINTIFF MUST PLEAD AND PROVE TO ESTABLISH TRADITIONAL EVIDENCE OF TITLE
To establish traditional evidence of title by conclusive evidence, the plaintiff must plead and prove such facts as: –
(a) Who founded the land in dispute,
(b) How they founded the land, and
(c) The particulars of the intervening owners through whom they claim.
See the cases of Nkado v. Obiano (1997) 1 NWLR (Pt. 482) 374 SC; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386; Piaro v. Tenalo (1976) 12 SC 31 and Mogaji v. Cadbury (supra)” per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
LAND LAW: TITLE TO LAND; WHETHER PROOF OF TRADITIONAL TITLE BY WAY OF ANCESTRAL HISTORY OF OWNERSHIP IS THE BEST EVIDENCE WHWERE LAND OWNERSHIP IS CLAIMED IN CUSTOMARY LAW
It has earlier been said to the effect that in a case tried upon pleadings, it is in the pleading of a party that the party in question sets up the case he wants to present and establish or prove by evidence before the court. This being so, it is necessary to examine the pleading of the Appellants to determine whether or not they can be said to have relied on another means of proving their title to the land in dispute which they undoubtedly know how they came to own same (i.e. by devolution or inheritance) aside from traditional history/evidence. This is particularly so as the Supreme Court decided in the case of OSU V. IGIRI (1988) LPELR – 2814(SC) that: –
“Where land ownership is claimed in Customary Law the best evidence is that of traditional title proved by way of ancestral history of ownership. See the ratio in case of Ntoe Ekpo v. Eta Ita above quoted. Where both sides claim ownership and both of them adduce evidence of ownership through ancestral history the better evidence of traditional ownership given by either side will warrant title being declared for that party:- See Karimu v. Fajube 1968 NMLR 151.”
See also the case of APATA V. OLANLOKUN (2013) LPELR-20938(SC). Similarly, the position of the law as it relates to proof of ownership of land by the method of long possession and acts of ownership is unequivocally brought out in the case of BALOGUN V. AKANJI [2005] All FWLR (Pt. 262) 405, [2005] Vol. II MJSC 175, wherein the point was made to the effect that proof of title by traditional history/evidence is antithetical and parallel to one of proof of title by acts of ownership. That in order to take advantage of proof of title by acts of possession, the party relying on the same can only do so by raising that method of proof in the alternative. In the BALOGUN case (supra), the pronouncement of Oputa, JSC; in the case of BALOGUN V. AKANJI [1988] 1 NSCC 180, was set out in extenso with approval. Hereunder are the portions of the pronouncement of Oputa, JSC; I consider relevant for the purpose of the Issue under consideration: –
“……… Apparently, and with respect, the learned trial judge fell into the same error against which the Privy Council warned in The Stool of Abinabina’s case supra “that frequent and positive numerous acts within living memory are essential to justify the inference of exclusive ownership is not well founded”. In the same case, Lord Cohen held that “the Plaintiff’s title would have been accepted solely on the basis of traditional evidence” as was done in Kuma v. Kuma. 5 W.A.C.A. 4 and Ado v. Wusu 4 W.A.C.A. 96 and 6 W.A.C.A. 24. In this case on appeal, both the pleadings and the evidence abundantly show that the Plaintiffs relied primarily on their Traditional Evidence and not on their Acts of Possession which were purely consequential, secondary, and accessory. And accessorium non ducit, sad sequitur suum principal (the necessary does not lead but follows its principal). Traditional evidence of Acquisition and First Settlement by Ojo Sango was the fons et origo (the foundation and origin) of the Plaintiffs’ title and not the acts of possession.
I repeat once more that the opinion held by many of our trial Courts that in every land case where title is in issue the dictum of the full Court per Webber, J. in Ekpo v. Ita supra (that the onus is on the plaintiffs claiming a decree of declaration of title to land to prove acts of possession and/or ownership, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners) applies, is erroneous. That dictum will only apply where the Plaintiff’s root of title is Act of Possession. It will not apply where the root of title pleaded is Sale and Conveyance nor will it apply where the root of title pleaded and relied upon is Traditional Evidence (as in this case). In either case, acts of possession may be exercised subsequently and consequentially to the primary root of title relied upon. In such cases once, and where, the primary root of title had been successfully established, the Plaintiff wins and there will be no further need to probe his acts of possession. One does not lose title to land which he bought and which was properly conveyed to him because he has not shown numerous and positive acts of possession in addition. No. That is not the law: Mumuni Abudulai v. Ramotu Manue (1945) 10 W.A.C.A. 172 and Mosalewa Thomas v. Preston Holder (1946) 12 W.A.C.A. 78. Unfortunately Ekpo v. Ita supra is one of our misleading cases. It has misled many a judge and it misled the learned trial judge in this case who thought that “it may be worthwhile sometimes to see whether Ekpo v. lta and the latter case of Stool of Abinabina are not in conflict.” Of course they are not in conflict. per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF ADEMUAGUN OPOTO
2. CHIEF JACOB ADEYEFA
3. JOHN ADEDIPE
4. CHIEF OLADELE DABI OISINKIN
(For and on behalf of the Opoto Family of Iluomoba-Ekiti) Appellant(s)
AND
1. CHIEF PETER ADEBISI ANAUN
2. MICHEAL AWE
3. CHIEF ELIJAH ADEYEFA OLOFIGBA
4. CHIEF PETER OLONISAKIN OGUNDANA EDEMO
(For and on behalf of the Anaun Family of Iluomoba-Ekiti) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 19/12/2013 by the High Court of Justice, Ekiti State of Nigeria holden in the Ado-Ekiti Judicial Division and presided over by Hon. Justice J.O. Adeyeye (hereafter to be simply referred to as “the lower Court” and “learned trial Judge” respectively). In the said judgment, the learned trial Judge dismissed the claims of the Appellants (i.e. Plaintiffs) in their entirety.
The case was tried on pleadings filed and exchanged by the parties. Parties severally amended their respective pleadings. The pleadings of the parties upon which the case was tried and decided by the lower Court as captured in the judgment of the lower Court are (i) Further and Further Amended Statement of Claim dated 22/3/2010 and filed on 23/3/2010 (hereafter to be simply referred to as “statement of claim”); and (ii) Fourth Further Amended Statement of Defence filed on 18/6/2013 and to which the Appellants filed no Reply (hereafter to be simply referred to as “statement of defence”).
The case of the Appellants as set up in the Statement of Claim is to the effect that they are the owners of the land in dispute situate lying and being at Idimo Road, Omi Agbaan, Iluomoba-Ekiti. The description of the said parcel of land was given in the statement of claim and the survey plans in which it was more particularly described were pleaded. It is the case of the Appellants that their ancestor, Oso Ejemikin who founded Iluomoba settled on the land in dispute several years ago from time immemorial. The Appellants set out the names of the heads of Opoto family who in succession had been in possession of the land. The Appellants averred to the effect that after Ejemikin founded Iluomoba and settled there, other families came from time to time to join him and settled on the land surrounding Iluomoba town. The order of the arrival and settling of the families in question beside Ejemikin was set out in the statement of claim. The Appellants depicted Chief Opoto as arriving first in time while Chief Anaun is shown as arriving fifth in time. According to the Appellants, all of the families have separate parcels of land on arrival and settled on separate pieces of land around Iluomoba town. Again, averring that the land in dispute falls within the land settled upon by Ejemikin, the founder of Iluomoba, the Appellants depicted Ejemikin to have settled at Iluomoba with his junior brother who became Chief Opoto, the highest chief in the family. It is also the case of the Appellants that though Oso Ejemikin and the Opoto families had already settled in Iluomoba before the arrival of Ajagun Dero, the first Ajagun of Iluomoba, the rulership of the town was however conceded to him as he came with a beaded crown from Ile-Ife and that this has remained the position till date. The Appellants further made averments concerning where the progenitor of the Respondents hailed or came from and how the Respondents’ progenitor and his brother came to be accommodated in Iluomoba with the said progenitor being given the title of “Anaun” which made him the second in command to Ajagun the ruler of the town; while his brother was given the title of Osere. It is the case of the Appellants that it was Chief Opoto that instructed the then reigning traditional ruler to allocate a parcel of land to the Anaun family and that the land allocated to them is alongside Aisegba Road, Iluomoba. The Appellants further narrated the various rights they have been exercising over the land in dispute without let or hindrance until when the Respondents’ family (none of the members of which has a farm thereon) started laying claim to the said land. The case of the Appellants is to the effect that it was after the Respondents had first sold part of the land in dispute to one Mrs. Ojo (who they prevented from completing her building thereon); and another portion to the 2nd Respondent in 2001 (an action which they protested against), that the Respondents went on the land in dispute about 3 weeks later, cleared a large portion of it preparatory to planting crops thereon. In the premises of the facts averred in the statement of claim, the Appellants claimed against the Respondents as follows: –
“i. Declaration that the plaintiff are entitled to certificate of customary right of occupancy in respect of a piece or parcel of land situate, lying and being at Idimo Road, Omi Agbaan, Iluomoba-Ekiti.
ii. N500,000.00k being general damages for trespass which the defendants committed on the said land sometime during the month of February 2001 and which trespass still continues.
iii. A perpetual injunction restraining the defendants their servants and agent from committing further acts of trespass on the said land.”
The Respondents controverted the Appellants’ claim to the ownership of the land in dispute in the statement of defence. They averred to the effect that one Anaun founded the present Iluomoba Ekiti and that his descendants have always exercised rights of ownership on the land. It is not only the case of the Respondents that Omi Agbaan is on their family land along Ijan Igbemo road (and not along Idimo road), but they set out the names of members of their family that have farms on the land in dispute.
The Appellants gave evidence in support of the case they set up in the statement of claim through nine witnesses and tendered Exhibits marked P1, P2 and P3; while the Respondents called six witnesses and tendered an Exhibit marked D1 in the proof of the case they set up in the statement of defence. Having had the benefit of the written addresses filed by the parties and after evaluating the totality of evidence before the lower Court, the learned trial Judge dismissed the case of the Appellants.
Being dissatisfied with the judgment of the lower Court, the Appellants initiated the instant appeal vide a Notice of Appeal dated 21/1/2014 and filed on the same date. The said Notice of Appeal contains seven grounds of appeal.
The appeal was entertained on 16/3/2015 as parties had before then filed, exchanged and regularised the positions of their respective Briefs of Argument. Appellants’ brief of argument dated 23/10/2014 was filed on 3/11/2014; while Appellants’ reply brief dated 6/3/2015 was filed on the same date. Both briefs of argument were settled by Magnus S. Ejelonu and other learned counsel. Ejelonu of counsel duly adopted and relied on the briefs of argument of the Appellants as hereinbefore identified in urging the Court to allow the appeal; set aside the judgment of the lower Court and grant all the reliefs sought by the Appellants in the lower Court.
Respondents’ Brief of Argument is dated 26/1/2015 and filed on 30/1/2015 but deemed to have been properly filed and served by order of Court made on 25/2/2015. The said brief of argument was settled by Adebayo Adewumi (learned lead counsel for the Respondents) and five other learned counsel. He duly adopted and relied on the brief of argument in question in urging the Court to dismiss the appeal and affirm the judgment of the lower Court.
Two Issues were formulated for the determination of the appeal in the Appellants’ brief of argument. They are: –
“a) Whether having regard to the pleadings and evidence on record, the learned trial judge was right in refusing the plaintiffs claim for declaration of title to land and dismissing same?
b) Whether the appellants are entitled to the consequential reliefs of damages and injunction?”
APPELLANTS’ ISSUE 1:
The arguments or submissions of learned counsel on this Issue are windy or voluble and undoubtedly repetitive. The gist or essence of the submissions of learned counsel is that the Appellants proved their ownership of the land in dispute by three of the established means or methods of doing this. The means by which Appellants proved their ownership to the land in dispute according to learned counsel are (a) by traditional evidence; (b) by acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership; and (c) by acts of long possession and enjoyment of the land in dispute. Cases dealing with proof of ownership of land such as Idundun v. Okumagba (1976) 9-10 SC 27; and Piaro v. Tenalo (1976) 12 SC 31, were cited by learned counsel. It is the stance of learned counsel that the learned trial Judge found the Appellants as having relied on the above mentioned three means of proof in the judgment appealed against. Learned counsel further submitted that it was therefore wrong of the learned trial Judge to have dismissed the Appellants’ claims upon the unsubstantiated ground that the Appellants failed to prove their traditional root of title without considering the other means of proving title which were pleaded and in respect of which they led evidence.
Dwelling specifically on traditional history, learned counsel said that what is required of the Appellants is for them to plead and give evidence of the persons who have held title or on who title devolved in respect of the land before they took control of the land. This is against the backdrop of the position of law that where evidence of tradition is relied upon in proof of declaration of title to land, the plaintiff in order to succeed must plead and establish the following facts: (i) who founded the land; (ii) how he founded it; and (iii) the particulars of the intervening owners through whom he claims down to himself and the case of Nkado v. Obiano (1977) 5 NWLR (Pt. 503) 31 amongst other was cited in aid. Having referred to the averments in paragraphs 11-17 of the statement of claim and portions of the evidence of the witnesses called by the Appellants that learned counsel considered to be relevant, he submitted that the Appellants clearly established the traditional history they relied upon in the proof of their ownership to the land in dispute. It is the stance of learned counsel that the finding of the learned trial Judge to the contrary and the reasoning which informed the finding were wrong. That the learned trial Judge apparently expected of the Appellants “proof beyond reasonable doubt” and not one on the balance of probability as it obtains in civil cases. Portions of judgments in the cases considered to be relevant were quoted in the Appellants’ brief of argument.
Dwelling specifically on the modes of establishing ownership to the land in dispute by (i) acts of ownership and (ii) acts of long enjoyment and possession of land, learned counsel said that acts of ownership relied upon by the Appellants were pleaded in paragraphs 27, 28 and 29 of the statement of claim. That the averments in the said paragraphs not only showed that the Appellants planted cash and food crops on the land in dispute but persons who still have crops on the said land. It is also the stance of learned counsel that in further exercise of their right over the land in dispute, the Appellants put tenants who grew food crops thereon and that they (Appellants) also granted some building plots which had been built up with people living there for over 40 years. It is the stance of learned counsel that the Appellants led evidence in line with the averments in these regard and which evidence was neither shaken nor discredited either during cross examination or by evidence adduced by the Respondents. That on the contrary, PW2 under cross-examination confirmed an aspect of the Appellants’ case that “Alfa Salawu built a house on the land in dispute”. Having referred to paragraphs of the statement of defence, learned counsel said that it was glaring that the Respondents in one breath said that the persons mentioned in paragraphs 27 and 28 of the statement of claim are fictitious while in another breath they said two of them, namely, Alfa Salawu and Imole Aba are not fictitious persons. It is the stance of learned counsel that as the Respondents cannot be allowed to blow hot and cold, their inconsistent, equivocal tendencies and prevarications were their greatest undoing which dealt a mortal blow to their case and demolished their defence, if any. The case of Al-Rissalah P.P. Co Ltd v. El-Housiesemi (2008)14 WRN 78 at 99, and another one were cited in aid.
Aside from this, it is the position of learned counsel that the Respondents in any event adduced no scintilla of evidence in support of the aspect of their case regarding the existence or non-existence of the persons mentioned by the Appellants in relation to the land in dispute. Though conceding that it is trite law that the Appellants being claimants for declaration of title to land must prove their case without relying on the weakness of the Respondents’ case, learned counsel submitted that the learned trial Judge ought to have weighed the evidence adduced by the Appellants and Respondents respectively, on the imaginary scale in order to arrive at a just and equitable conclusion in line with the provisions of Section 134 of the Evidence Act 2011 and that the learned trial Judge failed to do this. Hence, the finding of the learned trial Judge to the effect that the Appellants failed to adduce evidence that they granted building plots to tenants who have buildings thereon and in which they have been residing for over 40 years is incorrect.
It is also the stance of learned counsel that the Appellants equally pleaded and led sufficient evidence to establish ownership to the land in dispute by “long possession and enjoyment numerous and positive enough to warrant ownership” of same. Learned counsel submitted that the evidence adduced by the Appellants in this regard showed that they had been in both actual and constructive possession of the land in dispute from time immemorial without disturbance. The cases of Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 142; and Okegbemi v. Akintola (2008) 4 NWLR (Pt. 1076) 53 were cited in aid.
Learned counsel said it was worrisome that the learned trial Judge caused the Appellants great injustice when he had earlier on found on page 223 of the record as a fact that the Appellants specifically pleaded and led evidence on acts of ownership and acts of long enjoyment and possession of the land but failed to consider these two methods or modes of providing title to land and dismissed the Appellants’ claims on the ground of unsubstantiated traditional history. It is the stance of learned counsel that the non-consideration of these other two modes of proving title to land which were pleaded and in respect of which the Appellants adduced evidence, has occasioned a serious miscarriage of justice. That if the learned trial Judge had properly appraised the evidence of tradition and considered the acts of ownership; and long possession and enjoyment, he should have found in favour of the Appellants. Citing amongst others the cases of Mkpinang v. Ndem (2013) 4 NWLR (Pt. 1344) 302, 312-313; Balogun v. Akanji (2005) 10 NWLR (Pt. 933) 394 at 411 and Lawal v. Yakubu (1972) 8-9 SC 83, 121-122, learned counsel submitted that there was no justification for the non-consideration by the learned trial Judge of the two other means of proving ownership to land aside from that of traditional history. This Court was urged to resolve Issue 1 in favour of the Appellants as they led satisfactory and overwhelming evidence of acts of ownership and long enjoyment and possession of the land in dispute and which the learned trial Judge agreed with.
APPELLANTS’ ISSUE 2:
Dwelling on this Issue, learned counsel in the main argued that it was wrong of the learned trial Judge to have dismissed the Appellants’ claims for damages for trespass and injunction. It is the stance of learned counsel that trespass is a wrong against possession and a trespasser does not by the act of trespass secure possession in law from the person against whom he is in trespass and the cases of Osho v. Foreign Finance Corporation (1991) 9 NWLR (Pt. 184) 157 and Atunrase v. Sunmola (1985) 1 SC. 349 were cited in aid.
Stating that the Respondents admitted interfering with the Appellants’ quiet enjoyment over the land in dispute in paragraphs 32 and 34 of their statement of defence, learned counsel submitted that such admissions required no further proof and cited in aid the case of Ejimade v. Delta (2007) 13 NWLR (Pt. 1050) 96 at 118. It is the stance of learned counsel that the findings of the learned trial Judge on trespass run contrary to the facts the Respondents had admitted in their statement of defence. He further submitted that the attempt by the learned trial Judge on page 230 of the record to show that since Appellants’ family had granted some portions of the land in dispute to other persons, they cannot therefore claim damages for trespass is without force. This is because all that the Appellants needed to show is any form of possession; and since they were able to establish both actual and constructive possession, the learned trial Judge ought to have found in favour of the Appellants. Learned counsel also submitted that the inability of the learned trial Judge to differentiate between possession and occupation led him to arrive at a wrong conclusion and the cases of Udeze v. Chidebe (supra) and Ogunleye v. Oni (1990) 2 NWLR (Pt. 745) 783 – 784 were cited in aid.
Having also urged the Court to grant the injunction which the Appellants seek against the Respondents to forestall their trespass to the land in dispute with its attendant effects of disturbing the quiet enjoyment of the Appellants over the land in dispute, learned counsel commended to the Court the cases of Oyadare v. Keji (2005) 7 NWLR (Pt. 925) 571 and Oluwole v. Abubakare (2004) 10 NWLR (Pt. 882) 549 at 564.
The Respondents equally formulated two Issues for the determination of the appeal in their brief of argument. The Issues read thus: –
“(i) Whether in view of the evidence before the trial court, the appellants proved title to the land in dispute. (Grounds 1, 2, 3, 4, 5 and 7)
(ii) If the answer to issue one is answered in the negative, whether the appellants proved exclusive possession to the land in dispute to entitle them to consequential reliefs for general damages for trespass and injunction. (Ground 6)”
RESPONDENTS’ ISSUE 1:
Dwelling on this Issue, learned lead counsel stressed that the learned trial Judge declared in the judgment of the lower Court that there was no operative reply to the Respondents’ statement of defence. He submitted that this aspect of the judgment remained binding as there is no appeal against the same and the case of Biariko v. Edeh-Ogwule (2001) 12 NWLR (Pt. 626) 235 at 266-267 was cited in aid.
Learned lead counsel said to the effect that Appellants’ claim for declaration of title to the land in dispute cannot be granted either upon admission or default on the part of the Respondents. That the onus is on the Appellants to prove their claim for declaration on the preponderance of evidence and that if they failed to discharge this burden, then the Respondents need not prove any fact and Appellants cannot rely on the Respondents’ case. The cases of Agbi v. Ogbe (2006) 11 NWLR (Pt. 990) 65; Eya v. Olopade (2011) 5 S.C. (Pt. II) 47 and Dumez Nig. Ltd v. Nwakoba (2009) All FWLR (Pt. 461) 842, were cited in aid. It is the stance of learned lead counsel that Appellants laid the foundation for the dismissal of their claims right from their pleadings, particularly as it relates to traditional history, acts of ownership and acts of long enjoyment and possession of the land in dispute and he referred to paragraphs 11, 12, 13, 15, 16 and 17 of the statement of claim in this regard. It is the position of learned lead counsel that the averment in paragraph 11 of the statement of claim where the Appellants merely stated that Ejemikin, their ancestor was the first settler on the land in dispute from time immemorial without further details was inadequate and the case of Nkado v. Obiano (supra) was cited in aid. Learned lead counsel submitted that in both pleadings and evidence, the Appellants failed to prove how Ejemikin founded the land. That is to say, whether it was by conquest or settlement? It is the stance of learned lead counsel that it cannot be said that the Appellants successfully pleaded and proved their title by traditional history. This is because it is settled law that evidence that would uphold a case of traditional history must in the first place be in accordance with pleadings and secondly must be credible and reliable. He submitted that the findings of the learned trial Judge who had the opportunity of seeing and listening to the evidence of Appellants’ witnesses are unassailable as they were borne out of the pleadings and evidence on record. He further submitted that it is trite law that an appellate court will not interfere with any finding of fact of the trial court unless the finding is shown to have breached any known rule of law or procedure or the issue amounted to a miscarriage of justice or that they are perverse and the case of Egesimba v. Onzuwuke (2002) 15 NWLR (Pt. 791) 466 at 508 was cited in aid.
Posing the question as to whether the Appellants have proved that the findings of fact by the learned trial Judge are perverse, learned lead counsel answered the question in the negative. In elaboration, he referred to paragraph 6.07 of the Appellants’ brief of argument, wherein it is alleged that the learned trial Judge “wrongly evaluated the evidence placed before it with respect to proof by traditional history and failed to consider other means of proving title to land as enunciated by the apex court in a plethora of cases” and submitted that the inference one can draw from the argument of the Appellants on the finding of fact as regards traditional history is that the Appellants admitted that they did not adduce convincing evidence on traditional history but the lower Court failed to consider other means of proof of title. Having referred to portions of the evidence of PWs 1 and 2 relating to the founding of the land in dispute and the intervening owners as pleaded by the Appellants, learned lead counsel submitted that the Appellants failed to prove that the findings of the lower Court are perverse and the case of Dagaci of Dere v. Dagaci of Egwa (2006) 7 NWLR (Pt. 979) 382 and Inkotariah v. Goodhead (1997) 4 NWLR (Pt. 500) 453 at 477 were cited in aid.
It is the stance of learned lead counsel, that Appellants having now realised that their evidence of tradition is not satisfactory, they have proceeded to argue in paragraphs 6.25 – 6.54 of their brief of argument that the lower Court ought to have granted their claims in view of the fact that they successfully pleaded and proved acts of ownership and acts of long enjoyment and possession of land. Learned lead counsel submitted that Appellants never adduced credible evidence in the proof of these other two means. Learned lead counsel submitted that as it was clear from the evidence before the lower Court that the Respondents are in possession of the land in dispute, Appellants had the onus of establishing a better right to possession of the land and that they failed in this regard. The case of Fabumi v. Agbe (1985)1 NWLR (Pt. 2) 299 was cited in aid. Concluding, learned lead counsel urged the Court to resolve this Issue in favour of the Respondents.
RESPONDENTS’ ISSUE 2:
Dwelling on the Issue, learned lead counsel not only said that “trespass” is rooted in exclusive possession, but that the onus is on the Appellants to prove that they were in exclusive possession of the disputed land in order to succeed on that aspect of their case. The case of Odundipe v. Awe (1988) 1 NWLR (Pt. 68) 118 was cited in aid. It is the stance of learned lead counsel that Appellants failed to discharge the onus of proof in this regard. He alluded to the fact that Appellants through PW2 admitted that DW1 who is a member of the Respondents’ family farms on the land in dispute. It is also the stance of learned lead counsel that Appellants failed to prove that they have grantees that have buildings on the land in dispute; that this is suggestive of the fact that Appellants were not in exclusive possession. Furthermore, (though not conceding that the Appellants have customary tenants on the land in dispute) it is the stance of learned lead counsel that if Appellants do have such tenants, then the Appellants by virtue of that fact cannot sue in trespass and the case of Adepoju v. Oke (1999) 3 SC 28 at 41 was cited in aid. Learned lead counsel also submitted that Appellants having failed to establish their legal right to the land in dispute and the lower Court having rightly found to that effect, Appellants’ claim for an order of perpetual injunction cannot stand and was properly dismissed by the lower Court. This Court was urged to resolve this Issue in favour of the Respondents.
In the Appellants’ reply brief, learned counsel in dwelling on “settlement as a means of founding land” brought out what he considered to be prevarication in the Respondents’ brief of argument in relation to that issue. He said that Nigerian courts have held in legion of cases that first settlement is one of the ways in which land can be founded and cited in aid the cases of Okegbemi v. Akintola (2008) 4 NWLR (Pt. 1076) 53 and Auta v. Liman (2014) LPELR 22570. Also dwelling on “contradictions in the Appellants’ case” as argued in the Respondents’ brief of argument, learned counsel submitted to the effect that a holistic review of the pleadings vis-‘E0-vis the testimony of PW2 particularly his cross examination at pages 98 and 99 of the record reveals that the alleged contradiction is a minor contradiction. That the Supreme Court has always admonished that in assessing evidence of tradition, the courts should be wary in concluding that a party’s version is improbable simply because of some minor inconsistencies in it vis-‘E0-vis the facts pleaded, unless the inconsistencies render the evidence materially at variance with the pleadings and the cases of Makinde v. Akinwale (2000) 2 NWLR (Pt.645) 432 at 447, Jolayemi v. Olaoye (1999) 10 NWLR (Pt. 624) 600 at 617; and Babatunde v. Akinbode (2006) 6 NWLR (Pt. 975) 44 were cited in aid. It is also the stance of learned counsel that the Respondents must be deemed to have conceded all the points raised in the Appellants’ brief of argument regarding the failure of the learned trial Judge to consider acts of long enjoyment and possession as well as acts of ownership. This is against the backdrop that the Respondents did not address the issue in their brief of argument.
In my considered view it is clear as crystal that both Appellants’ Issue 1 and Respondents’ Issue 1 call for the resolution of the question as to whether or not the Appellants proved their ownership to the land in dispute. It is glaring from the judgment of the lower Court that the learned trial Judge did not find the Appellants to have proved ownership to the land in dispute. Ex facie the judgment of the lower Court, it is however apparent that the learned trial Judge not only appreciated the settled position of law that there are five recognised ways or methods of proving ownership of land but also the position of the law that the party claiming title to land need not prove more than one of the methods to entitle him to a declaration of title sought in that regard. (See pages 222-223 of the record). I consider it expedient to quote in extenso what the learned trial Judge said at pages 223-226 of the records concerning proof of ownership to the land in dispute by the Appellants as the raison d”EAtre for his conclusion on the issue are apparent therefrom. This is what the learned trial Judge said: –
“In this case, the plaintiffs pleaded and led evidence of traditional history, acts of ownership and acts of long enjoyment and possession of the land. The pleadings by the plaintiffs of their traditional history is contained in paragraphs 11, 12, 13, 15, 16 and 17 of their Further and Further Amended Statement of Claim, dated 22nd March, 2010 and filed 23rd March, 2010 which read thus: –
11. The plaintiffs’ ancestor, Oso Ejemikin who founded Iluomoba settled on the land several years ago from time immemorial.
12. The heads of Opoto family who have been in possession of the land in succession are as stated hereunder Oso Adebola, Oso Adewumi, Oso Uge, Oso Fatokimi, and lastly by Oso Ademuagun O, the present head of the Opoto family.
13. All the persons named above farmed with their families and relations on the disputed land and still farm there until today.
15. The land in dispute falls within the land settled upon by Ejemikin, the founder of Iluomoba.
16. Ejemikin came to settle at Iluomoba with his junior brother Olotu Ogori who became Chief Opoto and the highest Chief in the family.
17. The plaintiffs averred that when Ajagundero the first Ajagun of Iluomoba came to Iluomoba he met Oso Ejemikin and Opoto family already settled in the town.
It is settled that where evidence of tradition is relied on in proof of declaration of title to land, the burden is on the plaintiff to plead and prove facts such as:
(a) Who founded the land;
(b) How the land was founded; and
(c) Particulars of the intervening owners through whom he claims.
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PW1 in line with the pleadings in paragraphs 11-17 gave evidence as follows: –
“The land in dispute which I have just described belongs to Opoto family. Ejemikin who happened to be the first settler in Iluomoba owned the entire land in dispute and he is from Opoto family. This happens from time immemorial other members who had occupied the land are Oso Adebola, Oso Adewumi, Oso Uge, Oso Fatokimi, Oso Ademuagun ……………………….
Other members of my family who are currently farming on the land in dispute are Mrs. Famadewe Olowomeyin, Iyasuna Akinsehinde, Samuel Adeniyi Oguntomilola, Jacob Adeyefa Ademola. These people have farms on the land on which they planted cocoa, coffee, cashew, palm kernel, Yam, Banana etc. The family also put or have tenants on the land.”
PW2 testifying on the founder of the land in dispute said Opoto and his elder brother Oso Ejemikin were the first settlers in Iluomoba and they settled on the land in dispute from time immemorial. On how the land devolved on the present claimants, PW2 said thus:
“Apart from these two, the following people had also farm (sic) on the land in dispute, they are Oso Adebola, Oso Uge, Oso Fatokimi and Oso Ademuagun who is the current head of the family.”
However under cross-examination, PW2 said it was Oso Adewumi that succeeded Oso Ejemikin and Oso Adebola succeeded Oso Adewumi while Oso Uge succeeded Oso Adebola.
From the pleading and evidence of PW1 and PW2, it would appear the land in dispute was founded by the duo of Oso Ejemikin and Olotu Ogoru by settlement. Apart from the irreconcilable statements of the two witnesses on devolution, paragraph 12 where the plaintiffs pleaded devolution of title is scanty, insufficient and unsatisfactory. The averment in paragraph 12 did not state the link between the founder(s) of the land and the alleged family heads pleaded in the said paragraph. The question is, how did these people mentioned in paragraph 12 come to inherit the land? Were they all children of Ejemikin the alleged founder of the land? Or going by the evidence of PW2, were they the children of both Ejemikin or Olotu Ogoru who became Opoto since they were said to have both settled on the land at the same time? What is the link between Ejemikin and the heads of Opoto family who had been in possession of the land in succession? Who begat who? These questions remain unanswered in the case and therefore the process of devolution is completely missing both in pleading and evidence. In Owoade v. Omitola (1988) 2 NWLR (pt 77) 413 at 425 it was held that when a plaintiff (sic) case depends on traditional history, it is of utmost importance that the traditional evidence must not only make a consistent sense but also that it affirmatively links the plaintiffs with the traditional history he relies on. In the case of Eze v. Ataize (2000) 10 NWLR (pt 676) 470. The Supreme Court held at page (sic) 481-482 as follows:
“It is important to remark that the pleading of the devolution of the land in dispute is most unsatisfactory. The respondents did not plead whether Ololo who allegedly deforested the land, which would make it to belong to him personally at that initial stage, had children. If he had, their names would be given and who amongst them inherited the land, or whichever manner the land devolved, at his death. Then the process by which devolution of the land continued thereafter before getting to the respondents would have been pleaded as well. But here, what has been done was merely to aver the names of some so called heads of the Umuololo family being interpreted as children of Ololo. As already said no foundation was laid for the appreciation of the emergence of these alleged children. It follows that how the heads of family pleaded as successors of the land in dispute by way of devolution came to be is not known. They are simply referred to as heads of Umuololo family who have controlled the land in dispute.”
Applying this dicta (sic) to this case, it cannot be said that the plaintiffs have successfully pleaded and proved their title by traditional history. It is settled that evidence that would uphold a case of traditional history must in the first place be in accordance with pleadings and secondly must be credible and reliable. See Eze v. Atazie (Supra).
Upon the authority of the above cited case, the claim of the plaintiffs for a declaration of title must fail.”
Against the backdrop of all that has been said before now, it is my considered view that the instant appeal will be better determined upon the three Issues set out hereunder and under which the Issues as formulated by the parties can be conveniently considered. The Issues are: –
“1. Whether the lower Court was right in finding that the Appellants did not prove title to the land in dispute by traditional history/evidence?
2. Whether the Appellants relied on any other method or means of proving title to the land in dispute aside from that of traditional history/evidence having regard to the case they set up in their pleading?
3. Whether the lower Court is right in not granting the Appellants all or any of the reliefs they sought against the Respondents?”
WHETHER THE LOWER COURT WAS RIGHT IN FINDING THAT THE APPELLANTS DID NOT PROVE TITLE TO THE LAND IN DISPUTE BY TRADITIONAL HISTORY/EVIDENCE?
It is obvious from the submissions of learned counsel for the Appellants highlighted hereinbefore, that his position is that Appellants proved title to the land in dispute by traditional history/evidence having regard to their pleading and evidence adduced in support of same.
It is clear from the portions of the judgment of the lower Court hereinbefore re-produced, that the reasoning of the learned trial Judge in finding that Appellants did not prove title to the land in dispute by traditional history/evidence, is two prong, namely, that Appellants adduced inconsistent evidence through PWs 1 and 2 regarding devolution of the land in dispute; and the pleading of the Appellants as it relates to successive holders of the land in dispute is seriously defective; a fortiori, the traditional history/evidence led by them concerning the land in dispute.
In my considered view, it is clear as crystal from the averments in the pleading of the Appellants that they and the family they represent are not the original owners of the land in dispute. This is because the land in dispute is not portrayed to have been founded by a family talk less of their family. The land in dispute having regard to the averments in paragraphs 11, 12, 13, 15, 16 and 17 of Appellants’ pleading (which have been re-produced hereinbefore) was founded by their ancestor, named Oso Ejemikin by settling thereon several years ago from time immemorial. Appellants were unequivocal or explicit that the land in dispute is part of the land founded by settlement by their ancestor, Oso Ejemikin despite the fact that this ancestor of theirs is said to have settled thereon with his brother named Olotu Ogoru who became Chief Opoto and who is the highest chief in the family. In other words, Appellants given the case set up in their pleading do not claim that their ancestor, Oso Ejemikin and Olotu Ogboru co-founded the land in dispute. The land in dispute by Appellants’ showing belonged to a named individual at the time it was founded. It would also appear indisputable from the pleading of the Appellants that Chief Opoto and some other families (including the family of the Respondents) equally settled on other parcels of land in their own rights after Appellants’ ancestor Oso Ejemikin had founded and settled on the land in dispute. Aside from this, Appellants also depicted in their pleading that the land which the Respondents can rightly possess, was allocated to them. Indeed, aside from the paragraphs in Appellants’ pleading which were re-produced in the judgment of the lower Court and which have been set out hereinbefore, I consider it appropriate to re-produce other relevant paragraphs of Appellants’ pleading which disclose the above stated facts. The paragraphs in question read thus: –
” Paragraph 14
After Ejemikin founded Iluomoba and settled there, other families came from time to time to join him and settled on the land surrounding Iluomoba town and the order of their coming there and settling besides Ejemikin are as follows:
i. Chief Opoto
ii. Oba Ajagun
iii. Chief Baisa
iv. Chief Olokoju
v. Chief Anaun
vi. Chief Osere
vii. Chief Elewere
These families have separate pieces of land as they arrived at and settled on separate pieces of land around Iluomoba town.
Paragraph 19
The plaintiffs aver that the defendant’s progenitor, Asalaoka Anaun migrated from Eporo-Owo, a town in Ondo State with his brother Osere as a result of chieftaincy dispute.
Paragraph 21
The plaintiffs further aver that as a result of the large entourage that came with him and to assist in the expansion of community, the defendants’ family were persuaded to remain in Iluomoba and given the title of “Anaun” and second in command to Ajagun the ruler of the town and his brother was given the title of “Osere”.
Paragraph 22
The plaintiffs aver that thereafter Chief Opoto instructed Oba Ajagun Osamolaji who was the reigning Ajagun then to allocate a piece or parcel of land to be occupied by them and the said land so allocated to them was along Aisegba road, Iluomoba up till date Anaun family farm and have their settlements unchallenged in this portion of Iluomoba land.”
The settled position of law as enunciated in a litany of cases is to the effect that while there are five ways or methods of proving ownership to land in this country, title to land can however be acquired by various and diverse means. In this regard see amongst many others, the case of ADISA V. OYINWOLA (2000) LPELR – 186 (SC) wherein the Supreme Court per Ayoola, JSC; said on pages 42-43 thus: –
“…… The several ways in which title to land can be acquired should not be confused with the several ways in which such acquisition can be proved. The much cited case of Idundun & Ors v. Okumagba & ors. (1976) Vol. 10 NSCC 446 deals with ‘five ways in which ownership of land may be proved’ and not the ways of acquiring title to land. In short Idundun & ors. v. Okumagba & Ors deals with matters of evidence rather than question of substantive law of acquisition of title. It is for this reason that acquisition of title by gift, grant, or purchase was not mentioned. Also, the principle in Kojo II v. Bonsie (supra) relates to facts which the court should advert to in coming to a conclusion on the probability of evidence of tradition. Where, as in the present case, the plaintiffs rely on acquisition of title by grant, proof of such grant by traditional history arises only where the fact of grant was so ancient as to be beyond the memory of living witnesses. Facts which are within living memory are properly to be proved by evidence of living witnesses to the event and not by evidence of tradition permitted by section 45 of the Evidence Act. (See Commissioner of Lands v. Kadiri Adigun (1937) 3 WACA 206). The title relied on by the plaintiffs was one by grant in 1940. The 6th plaintiff witness gave evidence that he was alive when his father helped in partitioning the land and that he knew the extent of land partitioned to the Ikolaba Chieftaincy family. He said that “After the Yokolu crisis, Budo Toolo was assigned to Ikolaba for the purpose of collecting tributes” thus lending some support to the defendant’s case as to the effect of the exercise which took place in 1940 which have been variously described as allocation, assignment, and partition”
Suffice it to say that the Supreme Court reiterated the position expressed above in the case of AJIBOYE V. ISHOLA [2006] All FWLR (Pt. 331) 1209 at pages 1229 – 1230 whereat Onnoghen, JSC; stated thus: –
“It has been settled by long line of authorities from this court, that ownership to title to land may be proved by any of these five methods, viz:
(a) By traditional evidence;
(b) By production of documents of title, which are duly authenticated;
(c) By acts of selling, leasing, renting out all or part of the land, or farming on it, or portion of it;
(d) By acts of long possession and enjoyment of the land; and
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute; see Idundun v. Okumagba (1976) 9-10 SC 227; Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31; section 46 of Evidence Act, 1990.
It must however be noted that the above five methods deal with the means by which title to land can be proved in a court of law. The said methods have nothing to do with the mode of acquisition of title to land which may be by:
(a) First settlement on the land and deforestation of the virgin land;
(b) Conquest during tribal wars;
(c) Gift;
(d) Grant – customary;
(e) Sale;
(f) Inheritance, etc, etc.”
See also the case of ADESANYA V. ADERONMU [2000] FWLR (Pt.15) 2493 wherein the Supreme Court held amongst others to the effect that in a claim for declaration of title to land, the court must be satisfied as to (i) the precise nature of title claimed i.e. whether it is title by original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise; and (ii) evidence establishing the nature of title claimed.
I have said hereinbefore that it is clear from the case of the Appellants as set up in their pleading that they are not the original owners of the land in dispute which they claim was founded from time immemorial by their ancestor. The Appellants are laying claim to the land by virtue of the fact that it devolved on them over the years after the death of the original founder. In my considered view, the law is clearly settled regarding what a person relying on traditional history/evidence, grant, inheritance, possession, etc, must plead and prove to sustain the various means hereinbefore stated. For instance the case of ELEGUSHI V. OSENI [2005] All FWLR (Pt. 282) 1837 is very relevant regarding traditional history/evidence and inheritance and customary grant. At page 1852, the Supreme Court per Onu, JSC; stated thus: –
“This is because proof of ownership of land by traditional history is usually based on hearsay evidence, that is oral evidence often extending beyond human memory and time of the witnesses narrating the history, which narration was handed down from generation to generation up to the present one.
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To establish traditional evidence of title by conclusive evidence, the plaintiff must plead and prove such facts as: –
(a) Who founded the land in dispute,
(b) How they founded the land, and
(c) The particulars of the intervening owners through whom they claim.
See the cases of Nkado v. Obiano (1997) 1 NWLR (Pt. 482) 374 SC; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386; Piaro v. Tenalo (1976) 12 SC 31 and Mogaji v. Cadbury (supra)”
In my considered view, it is undisputable that the Appellants glaringly put in issue their title to the land in dispute by the very nature of the reliefs which they sought against the Respondents. Again, it is obvious from the case set up in Appellants’ pleading that they relied on traditional history/evidence at least (and I have used the words “at least” most advisedly) in the proof of their title to the land in dispute or as evidence to establish their title to the said land. This is aside from the fact that the Respondents in their pleading clearly controverted the title of the Appellants to the land in dispute and which position made it incumbent or imperative that Appellants established their title to the land in dispute on the strength of their own case. It is therefore obvious that in order for the Appellants to properly establish their title to the land in dispute by credible traditional history/evidence they are required to have first pleaded conclusive traditional history or evidence of tradition regarding who founded the land in dispute, how the said land came to be founded by the founder and intervening owners of the said land. This is particularly so against the backdrop of the settled positions of law that every material fact that is needed to establish a party’s case must be pleaded in trials contested upon pleadings and that evidence in respect of any material fact that is not pleaded by a party goes to no issue. In other words Appellants were duty bound to plead the traditional history/evidence regarding the land in dispute to the hilt. This is so because the mode or method of establishing title to land by traditional history/evidence clearly recognises that land owned by an original founder can later be owned by some other person or persons by inheritance, grant, purchase or any other means. It is however incumbent that the person or persons relying on traditional history/evidence in the proof of his title to land amongst others must plead the particulars of the intervening owners through whom he or they claim.
The learned trial Judge in dwelling on the traditional history/evidence regarding the land in dispute and as it relates specifically to intervening owners thereof, did not find Appellants to have pleaded with sufficient particularity as it were, the intervening owners through whom Appellants claim the land in dispute. The learned trial Judge quoted copiously from the case of Eze v. Atazie (supra) and relied on the said case in coming to this conclusion. The question therefore is whether or not the learned trial Judge was right in finding the pleading of Appellants regarding the devolution of the land in dispute scanty, insufficient and unsatisfactory.
This Court has had cause to dwell on traditional history/evidence in a host of cases. For instance, this Court dwelling on the meaning of traditional history/evidence, how it is to be pleaded and established as a root of title amongst others, in the case of IGBOJIMADU V IBEABUCHI [1998] 1 NWLR (Pt. 533) 179 at pages 190 – 191 stated thus per Uwaifo, JCA; (as he then was): –
“It ought to be pointed out that traditional history in simple terms is the history of a family or community as may be relevant to a claim in which title to a subject-matter or a right or interest is sought to be established to obtain a declaration as a principal relief or in order to be protected by an injunction. It is history of yore of which no living person can give an eye-witness account. Evidence in respect of it is the story handed down from generation to generation by word of mouth as hearsay. But, although evidence of traditional history is hearsay, it must be a true story, in the sense that it was not concocted; or at least have a semblance of it, in the sense that it is not incredible, even though it may not always have the sanctity of truth (see Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) 252 at 269); so that when it is in addition cogent, it can support a claim for a declaration of title: see Akhionhare v. Omoregie (1916) (sic) 12 SC 11 at 27. It is settled, of course, by judicial decisions that when two conflicting but apparently true or honest traditional histories are placed before the court, one by each of the parties, the cogency of them is determined by acts of possession in recent times in so far as they lead the court to ascertain which of the two histories is more probable: see Kojo v. Bonsie (1957) 1 WLR 1223. It is however the law that when the traditional history put forward by a plaintiff is found to be unreliable, and therefore the court rejects it, he has failed to prove title based on it and the claim to that title ought to be dismissed: see Fasoro V. Beyioku (1988) 2 NWLR (pt 76) 263; Adebayo v. Ighodalo (1996) 5 NWLR (Pt.450) 507.
It is therefore important for a party relying on traditional history to plead truthfully in accordance with the tradition told him and give a consistent evidence in respect thereof tending to establish (a) how and when the land was originally settled on by his particular ancestor, (b) by what custom that first settlement would confer title: this could be relevant in some cases because not in all communities is proof of ownership of land by establishing who was first to settle on it applicable – e.g. Bini Community; (c) the several ancestors who successively succeeded to or enjoyed that title before it eventually devolved to the plaintiff: see Akinloye v. Eyiyola (1965) NMLR 92 at 95; Total Nigeria Ltd. v. Nwako (1977) 5 SC 1 at 10-12; Owoade v. Omitola (1988) 2 NWLR (pt. 77) 413 at 424-425; Ohiaeri v. Akabeze (1992) 2 NWLR (pt 221)1.”
Also in the case of DAGACI OF DERE V. DAGACI OF EBWA (cited in the Respondents’ brief of argument) and which case is also reported as (2006) 25 NSCQLR 847, Tobi, JSC; dwelling on traditional history/evidence as a means of proving title to land said at page 910 thus: –
“In land matters, it is easy for a plaintiff to claim that he owned the land from time immemorial. But that is not the end of the story. The story must go further and paint a genealogical tree of the family ownership of the land. It is usually a line story of members of the family in ownership of the land from past to present, the plaintiffs paints a picture of genealogical lines and names spreading like the branches of a tree, telling a consistent and flowing of undisturbed ownership or possession of the land. And the flowing story which should first be told in the pleadings should mention specific persons as ancestors before the witnesses give evidence in court to vindicate the averments in the pleadings. …………..”
(Underlining provided by me for emphasis).
See also AKANBI V. SALAWU (2003) LPELR-316(SC).
Suffice, it to say that the DAGACI OF DERE case (supra) which was decided by the Supreme Court later in time to that of Eze v. Ataize (supra) in essence clearly reiterated the position of Uwaifo, JSC; in the Eze case in respect of the manner of pleading “devolution of land” and which the learned trial Judge as earlier said quoted copiously and relied upon in coming to the conclusion that Appellants did not prove or establish their title to the land in dispute by traditional history/evidence.
Many of the paragraphs in the pleading of the Appellants have been re-produced verbatim hereinbefore. I am of the considered view that the defects in the pleading of the Appellants regarding the intervening owners of the land in dispute are certainly not figments of the imagination of the learned trial Judge. Glaringly, there is no pleading regarding how the land in dispute said to have been founded by a named person – Oso Ejemikin became the family land of the Appellants and their Opoto family. The lapse or gap in the pleading of the Appellants in this regard, subsists even if one assumes that Oso Ejemikin and his brother Olotu Ogboru who became Chief Opoto and the highest chief in the family co-founded the land in dispute (and this is not the Appellants’ case on their pleading). This is because they still needed to have pleaded how or better still the circumstances that resulted in land founded by the aforesaid two named persons became that of one person i.e. Olotu Ogboru and thereafter the Opoto family to the exclusion of whatever family Oso Ejemikin had if he had any. It is therefore obvious, that Appellants having failed to plead conclusive traditional history/evidence regarding the intervening owners of the land in dispute, ipso facto cannot be heard to say that they adduced credible evidence in respect of that mode or means of proving title to land.
It has earlier been said that the settled position of law is that a claimant for declaration of title to land must establish his entitlement to same on the strength of his case. The demand in this regard is as put in place by law on the ground that he who asserts the existence of something must prove it. See EYO V. ONUOHA (2011) LPELR-1873(SC); and AIYEOLA V. PEDRO (2014) 13 NWLR (Pt. 1424) 409. In my considered view, when a court examines the pleading of a party and evaluates the evidence before it to see whether a party has established its entitlement to a declaration, it is a total misapprehension of the law for an aggrieved party to say that the court was looking for proof beyond reasonable doubt. Clearly, when a party seeking declaration of title has not placed before the court any credible evidence in the proof of same as the party’s pleading was defective in respect of material facts, as in the instant case, then it does not help that party to rely on any perceived weakness of the case of his adversary. This in my considered view was the approach of the learned trial Judge to the case of the Appellants as predicated on traditional history/evidence and I cannot but say that the learned trial Judge was eminently correct in the approach he adopted and that he arrived at a very correct decision that Appellants cannot be granted a declaration of title to the land in dispute having not proved, by credible and reliable evidence, the traditional history/evidence they relied upon. Learned lead counsel for the Respondents in my considered view would appear to have hit the nail on the head when he stated in the Respondents’ brief of argument to the effect that Appellants laid the foundation for the dismissal of their claims in their pleading (as far as they relate to traditional history/evidence at least). See OSAFILE V. ODI (1994) LPELR-2784(SC) wherein Uwais, JSC; (as he then was) said thus: –
” …… The burden of proving the claim did not shift to the defendants as was submitted by learned counsel to the plaintiffs. The burden which was on the plaintiffs to succeed on their claim for declaration of title was to lead evidence that was sufficiently cogent and credible in proof of their root of title. The next question is whether the plaintiffs had discharged the burden on them. To do so the plaintiffs were obliged, since they based their own on customary title, to give evidence of how they derived the title – see Ekpo v. Ita, All NLR 68 and Preston Holder v. Thomas 12 WACA 78. The difficulty which the plaintiffs ran into, as pointed out by the Court of Appeal, is that they omitted in their pleadings to aver fully the facts about their root of title. In the absence of such averment they did not and indeed could not have validly adduced evidence to establish the root of title. In the case of Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) 572 at p. 628 Karibi-Whyte, J.S.C. made the following remarks:-
“Thus, where title is derived by grant or inheritance, the traditional history or evidence of acts of continuous exclusive possession should be given to justify the grant. See Alade v. Awo (1974) 5 S.C. In Piaro v. Tenalo & Ors (1976) 12 S.C. 31 at P. 41 this Court held that in such cases the pleading should aver facts relating to the founding of the land in dispute, the persons who founded the land and exercised original acts of possession and persons on whom the title in respect of the land was devolved since its first founding, as necessary for determination of the issue in what communal capacity the land was being held.”
In the present case, the plaintiffs pleading fell short of stating the persons that founded the land in dispute and exercised the original acts of possession. Nor did they aver how the founders of the land in dispute came to be on the land. Surely, with this poor state of the plaintiffs’ case, no court could have judicially exercised its discretion to grant them the claim of declaration of title to the land in dispute. Therefore, the trial court was in error to have granted the declaration sought and the Court of Appeal was right to have reversed that decision of the learned trial Judge as it was based on wrong principle and was consequently perverse. ……..”
See also the cases of KAZEEM V. MOSAKU (2007) 29 NSCQLR 254; and YUSUF V. ADEGOKE (2007) 30 NSCQLR 269.
Flowing from all that has been said is that Appellants (who have the duty in that regard in the instant appeal) have totally failed to show that the decision of the learned trial Judge that they did not establish title to the land in dispute by traditional history/evidence is wrong. The aspect of Appellants’ Issue 1 questioning the correctness of the decision of the Lower Court on the ground that they established title to the land in dispute by traditional history/evidence, is accordingly resolved against them and in favour of the Respondents.
WHETHER THE APPELLANTS RELIED ON ANY OTHER METHOD OR MEANS OF PROVING TITLE TO THE LAND IN DISPUTE ASIDE FROM THAT OF TRADITIONAL HISTORY/EVIDENCE HAVING REGARD TO THE CASE THEY SET UP IN THEIR PLEADING?
Learned counsel for the Appellants, having regard to his submissions highlighted hereinbefore, has not only submitted that the Appellants proved their title to the land in dispute by two other means apart from traditional history/evidence but stated the other two means as “acts of ownership” and “acts of long enjoyment and possession”. It has earlier been said to the effect that in a case tried upon pleadings, it is in the pleading of a party that the party in question sets up the case he wants to present and establish or prove by evidence before the court. This being so, it is necessary to examine the pleading of the Appellants to determine whether or not they can be said to have relied on another means of proving their title to the land in dispute which they undoubtedly know how they came to own same (i.e. by devolution or inheritance) aside from traditional history/evidence. This is particularly so as the Supreme Court decided in the case of OSU V. IGIRI (1988) LPELR – 2814(SC) that: –
“Where land ownership is claimed in Customary Law the best evidence is that of traditional title proved by way of ancestral history of ownership. See the ratio in case of Ntoe Ekpo v. Eta Ita above quoted. Where both sides claim ownership and both of them adduce evidence of ownership through ancestral history the better evidence of traditional ownership given by either side will warrant title being declared for that party:- See Karimu v. Fajube 1968 NMLR 151.”
See also the case of APATA V. OLANLOKUN (2013) LPELR-20938(SC).
Similarly, the position of the law as it relates to proof of ownership of land by the method of long possession and acts of ownership is unequivocally brought out in the case of BALOGUN V. AKANJI [2005] All FWLR (Pt. 262) 405, [2005] Vol. II MJSC 175, wherein the point was made to the effect that proof of title by traditional history/evidence is antithetical and parallel to one of proof of title by acts of ownership. That in order to take advantage of proof of title by acts of possession, the party relying on the same can only do so by raising that method of proof in the alternative. In the BALOGUN case (supra), the pronouncement of Oputa, JSC; in the case of BALOGUN V. AKANJI [1988] 1 NSCC 180, was set out in extenso with approval. Hereunder are the portions of the pronouncement of Oputa, JSC; I consider relevant for the purpose of the Issue under consideration: –
“……… Apparently, and with respect, the learned trial judge fell into the same error against which the Privy Council warned in The Stool of Abinabina’s case supra “that frequent and positive numerous acts within living memory are essential to justify the inference of exclusive ownership is not well founded”. In the same case, Lord Cohen held that “the Plaintiff’s title would have been accepted solely on the basis of traditional evidence” as was done in Kuma v. Kuma. 5 W.A.C.A. 4 and Ado v. Wusu 4 W.A.C.A. 96 and 6 W.A.C.A. 24. In this case on appeal, both the pleadings and the evidence abundantly show that the Plaintiffs relied primarily on their Traditional Evidence and not on their Acts of Possession which were purely consequential, secondary, and accessory. And accessorium non ducit, sad sequitur suum principal (the necessary does not lead but follows its principal). Traditional evidence of Acquisition and First Settlement by Ojo Sango was the fons et origo (the foundation and origin) of the Plaintiffs’ title and not the acts of possession.
I repeat once more that the opinion held by many of our trial Courts that in every land case where title is in issue the dictum of the full Court per Webber, J. in Ekpo v. Ita supra (that the onus is on the plaintiffs claiming a decree of declaration of title to land to prove acts of possession and/or ownership, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners) applies, is erroneous. That dictum will only apply where the Plaintiff’s root of title is Act of Possession. It will not apply where the root of title pleaded is Sale and Conveyance nor will it apply where the root of title pleaded and relied upon is Traditional Evidence (as in this case). In either case, acts of possession may be exercised subsequently and consequentially to the primary root of title relied upon. In such cases once, and where, the primary root of title had been successfully established, the Plaintiff wins and there will be no further need to probe his acts of possession. One does not lose title to land which he bought and which was properly conveyed to him because he has not shown numerous and positive acts of possession in addition. No. That is not the law: Mumuni Abudulai v. Ramotu Manue (1945) 10 W.A.C.A. 172 and Mosalewa Thomas v. Preston Holder (1946) 12 W.A.C.A. 78. Unfortunately Ekpo v. Ita supra is one of our misleading cases. It has misled many a judge and it misled the learned trial judge in this case who thought that “it may be worthwhile sometimes to see whether Ekpo v. lta and the latter case of Stool of Abinabina are not in conflict.” Of course they are not in conflict. The Court of Appeal was therefore right in holding that on his findings: xxxxxx
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One final word on Ekpo v.Ita supra. Anyone who pleads Acts of Possession as his Root of Title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by Section 145 of the Evidence Act Cap 62 of 1958 to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he is not the owner. Looked at logically and critically a person pleading Acts of Possession as his root of title is simply saying – “I do not know how I got the land. All I know is that I have been in possession and have exercised various positive acts of possession. Now you prove that I am not the owner’. Put in this way it is easier to appreciate that acts of possession will not arise where the root of title is known, and pleaded, and proved. In such a case, title will be awarded on the strength of the title pleaded and proved. It is only where and when traditional evidence is inconclusive that the Court will be obliged to look at the acts of possession of the parties and therefrom determine on whose side the presumption in Section 145 Evidence Act will operate.
Onus of Proof
A careful consideration of the authorities and decided cases amply shows that there is no onus on a Plaintiff who claims title by Traditional Evidence and who successfully establishes his title by such evidence to prove further acts of owner-ship numerous and positive enough to lead to the inference that he is exclusive owner. When a Plaintiff has proved his title directly by Traditional Evidence there will be no need again for an inference to establish that which had been already directly proved. Acts of ownership become material only where the traditional evidence is inconclusive. In the case on appeal where the trial Court held that the traditional evidence led was conclusive, there was no need whatsoever to require further proof. That will be increasing unnecessarily the burden of proof on the Plaintiffs. That will be wrong. Cases like Ekpo v. Ita supra or Kojo v. Bonsie (1957) 1 W.L.R. 1223; W.A.L. 257 deal with cases where there is a conflict of traditional history. In such cases, the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable. Such a situation did not arise in this case since the trial Court was satisfied with the Plaintiffs’ Traditional evidence but not with that of the Defendants’.”
I am of the considered view that in the light of the averments in their pleadings, Appellants primarily and clearly too relied on traditional history/evidence in proving their title to the land in dispute. All the acts of possession and ownership exercised in relation to the land by them were clearly subsequent and consequent to the title of their ancestor, Oso Ejemikin, which is rooted in the traditional history of the said land. To this extent therefore, Appellants in my considered view are clearly in serious misapprehension of their case on the pleading and the law in submitting that they predicated their title to the land in dispute on any method of proof other than traditional history/evidence.
It is glaring that the learned trial Judge despite having said in the judgment that “In this case, the plaintiffs (i.e. Appellants) pleaded and led evidence of traditional history, acts of ownership and acts of long enjoyment and possession of land” (and which learned counsel for the Appellants has held on to tenaciously), considered Appellants to have relied on traditional history/evidence only, in the proof of their title to the land in dispute. He never found Appellants to have established their possession of the land in dispute in any manner. Having regard to the submissions of learned counsel for the Appellants that have been highlighted hereinbefore, it is obvious that Appellants appreciate the fact that they relied on traditional history/evidence in proving their title to the land in dispute. I have hereinbefore said to the effect that a person relying on traditional history/evidence in the proof of his title to land has by that peculiar method of proof shown himself not to be the original owner of the said land and that he knows how the land came to be founded by the original settler thereof. This clearly is the situation in the instant case. The Appellants do not claim original ownership of the land in dispute. They claim to derive title to it from their ancestor Oso Ejemikin. While considering the aspect of Appellants’ case relating to whether or not they proved their title to the land in dispute by traditional history/evidence, I concluded that the learned trial Judge was correct in his decision that the Appellants did not establish their title to the land in dispute by the said means. The Appellants clearly know the root of their title and disclosed the same to be Oso Ejemikin. I am of the considered view that the case of BALOGUN V. AKANJI (supra) has adequately settled the circumstances under which title to land can be predicated upon acts of possession and acts of ownership. I am also of the considered view that it is clear from the cases hereinbefore cited that acts of possession/ownership exercised on a parcel of land, subsequently and consequently to a pleaded primary root of title relied upon, cannot be used to establish ownership to the land in question where the primary root of title relied upon is not proved. See in addition the cases of DABO V. ABDULLAHI [2005] All FWLR (Pt. 255) 1039; OYADARE V. KEJI [2005] All FWLR (Pt. 247)1583; and YUSUF V. ADEGOKE (supra). Against the backdrop of the various positions of law as enunciated in the cases cited hereinbefore, not only do I find the Appellants not to have relied on any other means of proving their title to the land in dispute but traditional history/evidence in their pleading, but that they could not shore up this mode of proof of title (i.e. traditional history/evidence) with the acts of ownership and possession relied on by them in proving their title to the land in dispute (and which acts the lower Court never found to have been proved in any case).
Flowing from all that has been said is that the aspect of the Appellants’ Issue 1 relating to their having proved title to the land in dispute by “acts of ownership” and “acts of long enjoyment and possession” is resolved against them.
WHETHER THE LOWER COURT IS RIGHT IN NOT GRANTING THE APPELLANTS ALL OR ANY OF THE RELIEFS THEY SOUGHT AGAINST THE RESPONDENTS?
The learned trial Judge having being found to have correctly or rightly found Appellants not to have established their title to the land in dispute clearly had no basis upon which he could have granted the first of Appellants’ claims, namely declaration of entitlement to “certificate of customary right of occupancy in respect of a piece or parcel of land situate, lying and being at Idimo Road, Omi Agbaan, Iluomoba-Ekiti”.
It is very glaring from the judgment of the lower Court that the learned trial Judge despite his finding that Appellants did not establish their title to the land in dispute (and which was clearly in keeping with the settled position of law) proceeded on pages 227-231 of the record, to consider their – Appellants entitlement the claims for general damages for trespass committed by the Respondents “on the said land” sometimes during the month of February 2001 and which trespass still continues; and perpetual injunction to prevent the commission of further acts of trespass on the “said land”. The “said land”, as used in the claims for trespass and injunction in my considered view can only mean the “piece or parcel of land situate, lying and being at Idimo Road, Omi Agbaan, Iluomoba-Ekiti” in respect of which Appellants seek a “certificate of customary right of occupancy” in the light of the first of their reliefs. The learned trial Judge in evaluating the evidence adduced by the Appellants, did not find them to have led satisfactory evidence of possession of the land in dispute. This was sequel to the observations he made to the effect that the Respondents in disproving the claim of the Appellants that the members of the Respondents’ family are not farming on the land in dispute called DW1, who confirmed that he has a farm thereon and that PW2 confirmed this; that no tenant was called in proof of the assertion that the Appellants have tenants thereon that had built on the land in dispute; and that no witness called to establish the grant of land to him by the Appellants.
Learned counsel for the Appellants in his submissions which had been highlighted hereinbefore cited many cases relating to trespass and forcefully argued that Appellants were in exclusive possession of the land in dispute by themselves (i.e. physically or actually) and through their tenants and grantees who had built houses thereon (i.e. constructively). Arguments or submissions of learned counsel in this regard in my considered view would appear to have been predicated on the position of the law that proof of ownership is prima facie proof of possession. This is however true only if there is no evidence that another person is in possession. See EZE V. OBIEFUNA (1995) 6 NWLR (Pt. 404) 639. It would however appear that learned counsel for the Appellants has not realised that the situation is always different where a party claiming for declaration of title to land, trespass and injunction fails to prove his entitlement to the declaration for title as is the position in the instant case. In such a situation, the court has to determine whether the Appellants have established their actual possession or exclusive possession of the land and the trespass of the Respondents on it. See AJERO V UGORJI (1999) 10 NWLR (Pt. 621) 1 wherein Kutigi, JSC; (as he then was) stated thus: –
“……. I think the law involved is quite clear. It is that the claim for damages for trespass is not dependent on the claim for a declaration of title as the issues to be determined on the claim for trespass are whether the Plaintiffs had established their actual possession of the land and the Defendants’ trespass on it which are quite separate and independent issues to that on their claim for a declaration of title; while a claim for injunction is also not necessarily bound to fail after a claim for a declaration of title fails, provided the area of land in respect of which an injunction is sought is clearly defined and ascertained (see for example Oluwi v. Eniola (supra), Kareem AND Ors v. Ogunde AND Anor (supra). …….”
It would appear that this is the approach adopted by the lower Court regarding the claims of the Appellants for trespass and injunction.
I have painstakingly gone through the record and what is clear therefrom can be summarised as follows: –
1. PW1 who is the 1st Appellant and whose evidence spans pages 72-72F of the record testified amongst others to the effect that the land in dispute belongs to the Opoto family as Ejemikin the first “father” in Iluomoba who owned the entire land hailed or belonged to the said Opoto family. The witness testified as to the members of his family that have farms on the land in dispute and enumerated their names. Likewise he enumerated the names of the tenants the family has thereon. He said to the effect that the instant action was instituted in 2001 when one Mrs. Ojo trespassed on the Appellants land by preparing it for the erection of a building claiming that she was granted the land by the family of the Respondents. And that Appellants’ family stopped her. After this, one Michael Awe came on the same land in February 2001 to clear it preparatory to erection of a building thereon. That he too was stopped by the Appellants’ family. It was after this that the whole of Respondents’ family went on the land in dispute, cleared same and planted crops thereon. This witness never portrayed himself as residing on the land in dispute and never claimed to have any farm thereon.
2. The fact that PW1 does not have a farm on the land in dispute was corroborated as it were, by PW2 – i.e. 2nd Appellant and a member of the Appellants’ family who asserted that like him, PW1 does not have any farm on the land in dispute. See pages 83-84; and 96-99 of the records.
3. PWs 3 and 4 gave evidence as boundary men. They never claimed to be tenants of the Appellants in any manner.
4. PW5 gave evidence regarding the history of the land in dispute and even at that his evidence ran contrary to the matter pleaded in paragraph 14 of the Appellants’ pleading and was also contrary to that of PW2 on the averment in the said paragraph. In any event he made it clear that he belongs to a family different from that of the Appellants and never claimed to have any farm or structure on the land in dispute.
5. PW6 testified that he is a tenant of the Appellants’ family on the land in dispute. He was however categorical that nobody has ever disturbed him on the land in dispute granted him by the Appellants’ family.
6. PW7 in his evidence while stating the Appellants’ family to be his landlord was categorical that nobody has ever disturbed him thereon and that he has paying his “nights” (sic: tributes) to his landlords.
7. PW8 testified to the effect that he belongs to the Appellants family inasmuch as he is recorded as saying that “I know the plaintiffs, they are people of my family”. Though he also testified that he has a farm on the land in dispute, he however never testified that the Respondents did anything to the farm.
8. PW9 never testified to the fact that he has any farm on the land in dispute even though he testified that he is a member of the Appellants’ family.
Having regard to the above, the question to be asked is, can Appellants be heard to say that they proved the fact that they are in actual possession of the land in dispute satisfactorily (contrary to the finding of the lower Court of the learned trial Judge that they did not) vis-a-vis the finding of the said learned trial Judge that the Respondents established that at least a member of their family has a farm on the said land and which fact was confirmed by PW2?
My candid and considered view is that learned counsel for Appellants cannot fault the finding of the lower Court that Appellants did not establish by satisfactory evidence that they were in exclusive possession of the land in dispute. This is against the backdrop that Appellants never established the grant of the land in dispute to any grantee talk less of fielding any witness in the proof of the fact that he has a house on the land in dispute. Definitely, the establishment or existence of a grant, in law is not achieved by simply using the word “grant”. What a party to an action wants to establish necessarily determines the nature or kind of evidence that has to be adduced to establish the fact. It would therefore appear that the person that made the grant needed to testify regarding the matter or the person to whom the grant was made had to testify concerning the manner he came to be granted the land in question and by who. No particular member of Appellants’ family testified to having made any grant to any tenant and none of the witnesses who claimed to belong to Appellants’ family testified to having witnessed any grant made to any person by any of their members. Similarly, no person to whom any grant was made on the land in dispute came to testify regarding this. Aside from this, the two witnesses who testified to the effect that Appellants are their landlords in respect of the land in dispute claimed that nobody has disturbed them in any manner on the land in dispute. It must be borne in mind that the case of the Appellants is to the effect that the Respondents cleared a large portion of the land in dispute and heaped it preparatory to planting crops thereon. The evidence of the two witnesses in question raises a red flag as to whether they are in any way connected with the land in dispute and at any rate it shows that the land possessed by them is not within the large portion cleared by the Respondents. Against the backdrop of the evidence adduced by the Appellants, the learned trial Judge found the Respondents to have established that at least a member of their family has a farm on the land in dispute.
I am not unaware that learned counsel for the Appellants has argued extensively that the member of the Respondents’ family in question i.e. DW1 has land thereon because his mother belongs to Appellants’ family. I do not think however that the explanation as to how DW1 (who PW2 conceded as having farm) came on the land in dispute matters. It is not the case of the Appellants that DW1 is not of the Respondents’ stock. The fact that DW1 has a farm on the land in dispute clearly negates the averment of the Appellants to the effect that no member of the Respondents’ family has farm on the land in dispute. The Appellants in the knowledge of the identities of their members should have pleaded the matter of the Respondents’ family not having any farm on the land in dispute with circumspection if they knew that at least one member of the Respondents’ family has a farm on the land in dispute or that members of the Respondents’ family that are maternally related to them have farms thereon.
It would appear that the principles of law enunciated by the courts in relation to trespass particularly as they concern trespass to land are not recondite. It would also appear that it is in the application of the principles to the facts relied upon in establishing trespass that parties run into stormy waters. The case of EKPAN V UYO [1986] 1 NSCC 616 is a case in which the Supreme Court dealt extensively with trespass in different shades or from different angles, particularly locus standi vis-a-vis trespass. I will re-produce what Obaseki, JSC; said in the case. All that his lordship said is self explanatory so I am re-producing same in extenso. It goes thus: –
“The claim before the High Court of Bendel State, Sapele, was a simple claim of damages for trespass and an order of perpetual injunction. xxxxxxxx
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The opinion of Okagbue, J.C.A. that Ukavwe’s crops might have grounded an action for conversion cannot, in the light of the evidence, be right. It is a misconception and misdirection to hold that to enter the land is trespass if to dig up the land and uproot the crops, – yams, cassava and cocoyams – growing on the land is not trespass to land but to goods.
Planting of crops on land is one of the most effective means of asserting possession of the parcel of land. The maxim is quicquid plantatur solo, solo, cedit. Whatever is fixed to the soil belongs to the soil. So long as the crops remain standing on the farm, the tenant, 5th P.W. is in exclusive possession.
The learned Justice was of the view that since the issue of title was raised and it was resolved in favour of the plaintiffs/respondents, then it follows that possession of the land was in them because in law possession reside in the party who has a better title. I agree that where two persons claim possession at the same time that is the correct proposition of law as there is nothing like concurrent possession of land by two persons. If the party who has a better title has divested himself of possession in favour of a third party he has no possession which can be disturbed by mere entry and which will entitle him to sue for damages for trespass.
Karibi-Whyte, J.C.A., dissenting quite rightly, in my view, summed up the correct legal position when he said:
“In Oloko v. Uzoka (1978) 4 S.C. 77, plaintiff had sued defendants for damages for trespass and injunction. In the proceedings and in the pleadings, plaintiffs clearly indicated that the portion of the land in respect for which action was brought had been demised to a third party who at the time of the trespass was in possession. The action was brought because of the damages done to the area held by the third party. It was clear from the action that the claim for damages for trespass was tied to the damage to the possession of the third party. It was held that only the third party in possession can sue for trespass.
The situation is quite similar in the appeal before us. Plaintiffs have parted with possession at least for one farming season, and put P.W.5 Ukavwe in occupation and who was in exclusive possession having been disturbed by 2nd defendant, plaintiffs have brought action for trespass, claiming damages and injunction. The claim for trespass would seem to me undoubtedly to be tied to the invasion of the possession of P.W.5. Plaintiff did not as much as include any other trespass however slight. See Nwosu v. Otunola (1974) 1 All N.L.R. (Pt.1) p.533. I do not think such a claim is actionable on behalf of the plaintiffs, who are in law not in exclusive possession of the farm in respect of which action for trespass has been brought and are in no legal relationship to bring the action.”
That was the voice of Karibi-Whyte, J.C.A. dissenting. That opinion was the opinion of the Court of Appeal. As stated earlier on in this judgment, the opinion of the Court (represented by the majority opinion) was otherwise. This was not acceptable to the defendants. They were dissatisfied, so they appealed to this Court against the decision of the Court of Appeal. Three grounds of appeal were filed. As the grounds of appeal are prolix, I will not set them out in full but will reproduce them without all or some of their particulars for the purpose of this judgment. They read:
1. The learned Justices of the Court of Appeal (Okagbue and Pepple, JJ.C.A.) erred in law or misdirected themselves in law in their majority (dissenting) judgment allowing the plaintiffs/respondents cross-appeal and dismissing the defendants/ appellants’ appeal when they gave judgment for the plaintiffs/respondents in damages for trespass by an application of the principle of law enunciated in the case of Okorie & Ors. v. Udom & Ors. (1960) 5 F.S.C. 162 at 165 (per Okagbue, J.C.A.) and Aromire & Ors. v. Awoyemi (1972) 1 All N.L.R. 101 at 112 (per Pepple, J.C.A.) to ascribe possession of the land in dispute or the pertinent portion thereof to the plaintiffs/respondents by virtue of the finding of fact made by the learned trial Judge that the plaintiffs/respondents are the true owners thereof when the said decisions and others besides to which reference was made in the said judgment were inapplicable to the facts of this case.
2. The learned justices of the Federal Court of Appeal erred in law in their majority (dissenting) judgment aforesaid by finding for the plaintiffs/respondents on the specific issue of possession of the land or the disputed portion thereof on a postulation of law or customary law without the benefit of evidence establishing same when they held as follows:
3. The learned Justices of the Federal Court of Appeal erred in law in their majority (dissenting) judgment not only dismissing the appeal against the order of injunction made by the Court below against the 2nd defendant/appellant but also in substituting therefore an order of their own by holding that such an order followed as a matter of course.
As stated in the opening paragraphs of this judgment, the main issue or question for determination in this appeal is whether the plaintiffs had any locus standi to institute the action claiming damages for trespass and an order of injunction against the defendants/appellants:
The other subsiduary questions are:
(ii) whether the plaintiffs/respondents have proved and established a case of trespass against the defendants/appellants; and
(iii) Whether the plaintiffs/respondents were entitled to be granted an order of injunction against the defendants/respondents on the pleadings and evidence.
Locus Standi.
On the issue of locus standi, Dr. Enemeri, learned counsel for the appellant submitted that both on the pleadings and the evidence, the plaintiffs/respondents have no locus standi to bring the action for trespass against the appellants. He submitted, and quite correctly in my view, that only a person in possession and a person entitled to possession can sue in trespass if his possession is disturbed but that a person not in possession although entitled to the reversion on the expiration of a tenancy or lease cannot claim for the disturbance of his tenant’s possession in trespass. Dr. Enemeri further submitted that since the plaintiffs/respondents were not in possession of the land in dispute they have no locus standi to sue in trespass.
Chief Ororho, learned counsel for the plaintiffs/respondents contended on the other hand that the plaintiffs granted only a licence to the 5th P.W. Ezebue Ukavwe to farm on their land. They, he contended, did not part with possession to the 5th P.W. Ezebue Ukavwe and that since it was only a licence or permission to farm that was granted the plaintiffs/respondents had locus standi and were entitled to take action against anyone who enters the land and disturb their licensee without consent.
I am unable to accept the contention of learned counsel for plaintiffs/respondents. The evidence of the 5th P.W. and the 2nd plaintiff on the issue of grant of the farmland to the 5th P.W. cannot bear the meaning the learned Justices (Okagbue and Pepple, JJ.C.A.) attached to it. Firstly, it should be observed and noted that land required for farming is meant for growing crops. The crops to be planted whether yam seedling, maize seeds or cassava cuttings have to be planted in the soil. They take time to germinate, to grow, to mature and to be harvested. In the con of the case, only the crops belonging to the 5th P.W. Ezebue Ukavwe have to be grown on the farm land granted to the 5th P.W. for the duration of the grant no matter how short it is. There is no evidence that the plaintiffs or any of them can also plant their crops on the same piece of land given to the 5th P.W. at the same time as he growing his crops on it. It is therefore clear that the grant to him cannot give him anything less than exclusive possession of the area granted to him for farming to enable him protect the land and crops from any trespasser. Whatever assessments there are (and there is no evidence) which the landlords may enjoy do not, in my view, derogate from the grant of exclusive possession for farming purposes. If the concept of grant of possession is detached from the concept of allotment of parcels of family land among members of the family for farming, the purpose of allotment is totally defeated. I fail to see the rationale for embarking on the exercise of allotment if the intention were not to confer rights of possession or exclusive use of the parcel allotted on the allottee notwithstanding that the reversion is in the family. xxxxxxxxxx
There was therefore no basis whatsoever for disturbing the findings of fact made by the learned Trial Judge that the 5th P.W. was in exclusive possession and was the person whose possession was disturbed And the Court of Appeal erred in so doing.
Since the plaintiffs/respondents had parted with possession of the land to the 5th P.W. for farming and since the crops damaged on the land were the crops of the 5th P.W., the plaintiffs/respondents had no locus standi to institute this action for damages for trespass and injunction. Their interests did not suffer any damage and they cannot, under our law, claim damages for the disturbance of the possession for their tenant which did not damage the reversion.
See Christopher Okolo v. Eunice Uzoka (1978) 4 S.C. 77 at 87.
The question as to the civil rights and obligations of the plaintiffs/respondents did not arise for determination so they have no locus standi. See Dr. Irene Thomas v. Archbishop Olufosoye & Ors (1986) 1 N.W.L.R. (Pt. 18) 669.
The appeal succeeds on ground 1 of the grounds of appeal.
The second issue is whether the plaintiffs/respondents established or proved a case of trespass to their land. The learned trial Judge and the Court of Appeal were justified in holding that the issue of title was raised on the pleadings and the evidence. The issue raised was who owns the land? Although raised, it was not an issue necessary for the determination of the issue whether the plaintiffs were in possession. The plaintiffs/respondents pleaded ownership in their statement of claim. They did not plead that they and also claimed ownership. The plaintiffs/respondent pleaded that they had a tenant whose possession of the land was disturbed. But as there was no claim for a declaration of title by the plaintiffs/respondents before the court, all that the evidence led by the plaintiffs/respondents did was to establish their title which enabled them grant the land (Ezenoha area) in dispute to the 5th P.W. for farming. The learned trial Judge found as a fact that the (Ezenoha) land in dispute is at the centre of a large parcel of land owned by the plaintiffs/respondents and that it was granted to 5th P.W. for farming. The fact that entry to (Ezenoha) the land in dispute cannot be made without first entering and traversing the other lands of the plaintiffs/respondents brought the intention of the plaintiffs/respondents to confine their claim to Ezenoha farm area in possession of 5th P.W. into sharp focus.
It should be observed that the disturbance was a passing phrase on a solitary occasion for it did not continue and it did not drive the 5th P.W. from the land or make him give up farming on the land.
It is duty of the plaintiff to prove conclusive that they were in exclusive possession of the area in dispute before the alleged trespass.
See Silas Okoye v. Chief Agogbua Kpaiaie & Ors. (1972) 6 S.C. 176.
In order to succeed in an action of trespass to land, plaintiff, must prove and have present exclusive possessory title i.e. he must be in exclusive occupation. See Wuta Ofei v. Danguel (1961) 1 W.L.R. 1238; Amakor v. Obiefuna (1974) 1 All N.LR. (Pt.1) 119.
What is possession of a parcel of land? What does possession of a parcel of land mean? Possession of a parcel of land means the occupation or physical control of the land either personally or through an agent or servant.
Mogaii & Ors. v. Cadbury Fry (Export) Ltd. (1972) 1 All N.L.R. (Pt.1) 81 at 88.
A trespasser does not by the act of trespass secure possession of the land in law. Jimoh Adebakin v. Sabitu Oduiebe (1972) 6 S.C. 208 at 210.
In Mogaii & Ors v. Cadbury Fry (Export) Ltd (supra) at p. 88, Madarikan, J.S.C. delivering the judgment of the Supreme Court said:
“Possession of a parcel of land means the occupation or physical control of the land either personally or through an agent As stated by Lord Fitzgerald in Lord Advocate v. Young (1887) 12 App. Cas. 544 at p. 556, by possession is meant possession of that character of which the thing possessed is capable. Thus, if a person adduced evidence that he or his agent or servant were cultivating a farmland that would be evidence sufficient to establish that he was in possession of the land. Similarly, if a person erects on a parcel of land a signboard bearing his name, he hereby gives notice to all and sundry that he is in possession of the land”
In Mayfair Property Company v. Johnston (1894) 1 Ch 508. it was held that where there was injury of a permanent nature to the land in dispute, reversioner would be granted an injunction although the tenant in possession made no complaint.
From the above authorities, it is my opinion that the 5th P.W. Ezebue Ukauwe was in possession of the land and there being no evidence of injury of a permanent nature to the land in dispute, the plaintiffs are not entitled to a grant of an order of injunction. Where a plaintiff fails to prove possession or a better right to possession, his claim must fail. K Nwosu v. J. Otunola (1974) 1 All N.L.R. (Pt.1) 533.
The case of Kolo v.Uzoka (supra) is very much in point in this case.
Although in Mouslow London Borough Council v. Troikenham Garden Dev. Ltd. (1970) 3 All E.R. 326, Megarry, J. has suggested that in recent years that a person who has more than a mere licence may yet have possession of land, I have no doubt in my mind it is possession of land and not just more than a mere licence that was given to a person who is given a parcel of land for farming after payment of customary consideration. P.W.5 had the exclusive power of using the rights given him to farm on the land. No other person had the right to farm on the land given to him. He was in occupation or physical control of the land. He had the exclusive power of using the land for farming for the period. What does exclusive power of using the land for farming for the period. What does exclusive occupation mean. I will adopt the definition given by Scrutton, L.J. in Back v. Daniels (1925) 1 K13. 525 CA at p.543. There he said:
“I agree…… that exclusive occupation does not mean the power of excluding one else from the land but does mean the exclusive power of using the rights given him in the soil.”
The exclusive occupation by the 5th P.W. does not mean the power of excluding everyone else from the land but does mean the exclusive power of using the rights of farming given him in the soil. The appeal also succeeds on ground 2.
The final question posed by the grounds of appeal is whether in the circumstances of this case the plaintiffs/respondents are entitled to a grant of an order of injunction. There was no injury of a permanent nature to the land which would have entitled the plaintiffs to this equitable relief to preserve the reversion. The damage was to the crops planted by the 5th P.W. Ezebue Ukavwe.
Learned Counsel for the respondents relied on Ayeni Oluwi v. Daniel Eniola (1967) N.M.L.R. 339; Alhaji J. Aromire v. J.J. Awoyemi (1972) 1 All N.L.R. 101 and Pius Amakor v. Bennedict Obiefuna (1974) 3 S.C.67 at 78 to support his contention that the finding of possession in favour of the plaintiffs/respondents followed the declaration of the respondents as owners. This is not the correct statement of the law in the light of the evidence and the authorities cited proved the contrary. The claim for trespass is not dependent on the claim for declaration of title.
In George Ayeni Oluwi v. Daniel Eniola (supra) the Appellant was the plaintiff in the court below and he sued the defendant/respondent for a declaration of title to a piece of land ?100 being damages for trespass and injunction to restrain the defendant. The plaintiff’91s action was dismissed by the lower Court because the area of land which the plaintiff alleged was granted to him was not sufficiently established by evidence. On appeal to the Supreme Court, counsel for the appellant, while conceding that the claim for declaration of title was rightly rejected, argued that sufficient evidence of the possession of the plaintiff had been adduced to warrant a finding for him on his claim for damages since that was a separate issue.
The Supreme Court held (1) the claim for trespass is not dependent on the claim for declaration of title as the issue to be determined on the claim for trespass was whether the plaintiff had established his actual possession of land and the defendants trespass on it which are quite separate and independent issues to that on his claim for a declaration of title.
Lewis, J.S.C. at p.340 of the report 1967 N.M.L.R., said, and I agree with him:
‘The learned trial Judge after dealing at some length with the claim for a declaration of title turned towards the end of judgment to the issue of trespass and said:
“With regard to the claim for damages for trespass, I must say there is no clear proof of possession on the plaintiffs’ part. There must be sufficient possession to maintain trespass. As Best, C.J. stated in Reventh v. Brown (1828) 5 Bing Reports 7 “possession also is indeed sufficient to sue in trespass but it must be clear and exclusive possession.”
In our judgment the learned trial Judge rightly appreciated that the claim for trespass here was independent of the claim for a declaration of title and rightly appreciated that the success of the claim must first turn on whether the plaintiff had proved his possession of the land in issue and the learned trial Judge found he had not.”
(Italics mine)
In the instant appeal, Akpovi, J. rightly treated the issue of trespass independently and found that the plaintiffs/respondents failed to prove their possession of the land. Indeed, he found that they did not have possession of the land in dispute at the material time.
In the case Alhaji J. Aromire and 2 Ors. v. J. J. Awoyemi (supra) the plaintiff/respondent claimed ?500 special and general damages for trespass, recovery of possession, and an injunction restraining the defendants, his servants and or agents from committing further acts of trespass on all that piece or parcel of land situate at Oniwala Court, Awoyemi compound, Lagos. The defendant, Alhaji Jubrilla Aromire filed a counter’97affidavit in which he stated, inter alia, that he was only an agent for one Alhaji Elias who claimed to have owned the said land which he had sold to one O. J. Mazelli. Later O. J. Mazelli and Alhaji Elias were joined as the 2nd and 3rd defendants respectively. On their own motion, Joshua Faji, Buraimoh Awoyemi and Mutairu Salu were joined as 4th, 5th and 6th defendants respectively and were all defendants/respondents. George, J. gave judgment in favour of the plaintiff with costs against the appellants awarding damages against the list appellant and dismissed the defendants/respondents from the action.
The appellants complained that the learned Judge misconceived the point of the entire proceedings since it was not established that the plaintiff had a superior title to that of the 3rd appellant who also claimed to have bought the land and to have always been in possession of the land and that therefore he could rightfully maintain an action for damages for trespass against the 3rd defendant whose title was not superior to his own.
Coker, J.S.C. delivering the judgment of the Court said at p.108 that the learned trial Judge was faced with the problem of locus standi as they, 4th, 5th, and 6th defendants/respondents were not parties to the case originally and the plaintiffs had no cause of action against them and had not sued them for anything. The Supreme Court dismissed them from the appeal and went on to make the memorable legally loaded statement that
“claim in trespass pre-supposes that the plaintiff is in possession of the land at the time of the trespass.”
Conversely, a plaintiff who cannot prove that he was in possession of the land at the time of the trespass must of necessity fail in the action. The learned Justice went on to say that:
“A trespasser cannot claim to be in possession by mere act of entry and clearly a plaintiff in lawful possession still remains in possession despite a purported eviction by a trespasser.”
In the instant appeal, the 5th P.W. was in possession of the land in dispute, he remained in possession and was not even evicted. According to the evidence, he quarrelled with the 2nd appellant for entering his farm and up-rooting his cassava and yams and the 2nd appellant left. He maintained his farm to harvest time and harvested his crops. It is unrealistic for the plaintiffs/respondents to claim to be in possession.
In the issue of competing possession, Coker, J.S.C. continuing the judgment in Aromire v. Awoyemi said at p. 112:
“It is of course settled law that where two parties claim to be in possession of land, the law ascribes possession to the one with a better title (see Jones v. Chapman (1848) 2 Ex Ch 803. Canvey Island Commissioner v. Preedy (1922) 1 Ch. 179). In a similar case, this court directed as follows:
‘We are in no doubt that on the pleadings, the case of the plaintiff postulates that she had a better title to the land than the defendant who admittedly was at the time of the institution of the proceedings, rightly or wrongly in possession of the land………. The learned trial Judge rejected the defendant’s case and passed severe strictures on the defendants’ witnesses and their conduct; but with respect a consideration of the defendants’ case and the weakness of it did not arise until the plaintiff had led evidence showing, prima facie that she had a title to the land. She had failed to do this and it is inconceivable that she should be allowed to succeed on her claim when as indeed it is the defendant who is in possession and maintains he is entitled to remain. If it be alleged that someone in possession of land is a trespasser the person so alleging has the onus of showing that he had a better right to the possession which was disturbed and unless that onus is discharged the person so alleging cannot defeat the rival party. Such is the case here and we are of the view that the plaintiffs’ case had failed and it should have been dismissed.” (See Godwin Egwuh v. Duro Ogunkehin S.C. 529/66 decided on the 28th February, 1969).”
In the instant appeal, it is manifest on the pleadings and the evidence that it was not the plaintiffs’ possession of the land that was disturbed neither was it his right to the possession of the land at the point of time in issue that was disturbed. It was the 5th P.W.’s possession or right to possession of the land that was disturbed. The facts in the cases cited are all even at variance with the facts of the instant appeal. The issue of the disturbance of the tenant’s possession of the land did not arise in those case cited.
The last case of Pius Amakor v. Bennedict Obiefuna (supra) does not help the respondents either. In the case, the plaintiff/appellant sued for ?1000.00 damages, special and general damages for trespass to land and an injunction to restrain the defendants from further trespass. Both parties pleaded that they were put in possession of the land by the Ojora Chieftaincy family. The Supreme Court held when the matter came before it that trespass to land is actionable at the suit of the person in possession and that person can sue even if he is neither the owner nor the privy of the owner. This authority further emphasises the position of the 5th P.W. Ezebue Ukavwe in the instant appeal as the right person to sue in trespass. It did not postulate that where a tenant is in possession; the landlord can sue. Fatayi’97Williams, J.S.C. (as he then was) said at page 126:
“It is trite law that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except a person who could establish a better title. Therefore anyone other than the true owner who disturbs his possession of the land can be sued in trespass and in such an action it is no answer for a defendant to show (as the defendant/respondent had sought to show in paragraph 7 of his statement of defence although he gave no evidence in support of his averment) that the title to the land is in another person.”
It is therefore clear to me that the respondents had no possession which was disturbed by the appellants at the material time to enable them to institute the action for damages for trespass to the land and an order of injunction. The order of injunction as well as the damages awarded was not justified by the evidence.
On the authority of Okolo v. Uzoka (supra) it is Ezebue Ukavwe and not the respondents who has locus standi to institute the action. Karibi-Whyte, J.C.A. was right in his assessment of the facts and the law. The appeal succeeds and I hereby allow it.
The decision of the Court of Appeal is hereby set aside and in its stead, the decision of the High Court dismissing the claim for damages is restored.
The claim for damages, trespass having been dismissed and since the respondents had no locus standi to commence the proceedings, the claim for injunction is also dismissed and this shall be judgment of the Court.
The appellants will have costs for this appeal in this court fixed at N300.00 and in the Court of Appeal fixed at N250.00.”
(Underlining provided by me for emphasis).
In my considered view, the finding of the learned trial Judge that Appellants did not adduce satisfactory evidence concerning their possession of the land in dispute clearly cannot be faulted. Appellants clearly never adduced evidence of actual possession by themselves or through their servants or agents of the totality of the land in dispute or any part thereof inasmuch as it is their case that they had granted portions thereof to other persons and also have tenants (in contradistinction to servants or agents) thereon. In other words, the Appellants cannot be heard to say that they are in possession of the land in dispute through persons to whom they have by their own showing relinquished possession either permanently or temporarily. Indeed, one or two witnesses who claimed to be members of the Appellants family and that they have farms thereon never led evidence fixing the location of their farms on or within the portion of the land in dispute which the Respondents were said to have cleared preparatory to planting crops thereon, and in any event never testified as to any act of the Respondents that constituted the trespass which the second of Appellants’ claims is about. This is aside from the fact that the picture which the evidence of the witnesses of the Appellants went to show is that at best whatever trespass the Respondents could have been found to have committed (had they even established their actual possessions of the land in dispute) cannot be in relation to the whole of the land in dispute. And I simply do not see how the lower Court and even this Court could ever grant a relief in trespass and/or one for injunction with reference to “the said land” as asked for in Appellants’ pleading.
Flowing from all that has been said is that against the backdrop of the principles of law relating to trespass to land vis-a-vis the evidence before the lower Court, Appellants who did not establish their right to possession by proving their root of title, and who also never established their actual possession of the portion of land which the Respondents cleared preparatory to planting crops thereon (and which portion of land is even not clear or definite from the evidence on record), cannot be entitled to any of the reliefs they have sought against the Respondents. See ONOVO V. MBA (2014) 14 NWLR (Pt. 1427) 391; and AIYEOLA V. PEDRO (supra). The learned trial Judge was therefore very right in dismissing the claims of the Appellants for trespass and injunction given his correct finding that Appellants did not adduce satisfactory evidence to establish their possession of the land in dispute. Appellants’ Issue 2 is accordingly resolved against them while Respondents Issue 2 is resolved in their favour.
In the final analysis, the instant appeal is totally lacking in merit as the Issues formulated for its determination by the Appellants have been resolved against them. The appeal therefore fails and is hereby dismissed. Accordingly, the judgment of the lower Court is affirmed.
Costs of N50,000.00 is awarded the Respondents and against the Appellants.
ADZIRA GANA MSHELIA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, LOKULO-SODIPE, JCA. I agree with the reasons therein advanced to arrived at the conclusion that the appeal is devoid of merit and should be dismissed. My learned brother has exhaustively treated all the issues raised for determination in this appeal. I only wish to chip in a few words of my own.
The facts relating to this Appeal have been sell set out in the leading judgment.
Two issues were formulated for the determination of the appeal in the appellants’ brief of argument. Issue (a) raises the question whether having regard to the pleadings and evidence on record, the learned trial judge was right in refusing the plaintiff claim for declaration of title to land and dismissing same.
The, complaint of the appellants is against the finding of the trial court that appellants failed to adduce evidence in proof of their traditional history. That the learned trial judge ought to have weighed the evidence adduced by the appellants and respondents respectively, on the imaginary scale in order to arrive at a just and equitable conclusion in line with the provisions of Section 134 of the Evidence Act, 2011 and MOGAJI & ORS VS. ODOFIN & ORS (1978) 4 SC 91 at 92. From the pleadings and evidence adduced before the trial court, it cannot be correct to say that appellants proved title to the land in dispute by traditional evidence. It is settled that where evidence of tradition is relied on in proof of declaration of title to land, the burden is on the plaintiff to plead and prove facts such as:
(a) Who founded the land
(b) How the land was founded
(c) Particulars of the intervening owners through whom he claims.
The appellants failed to adduce cogent and credible evidence as to who founded the land, how the land was founded and particulars of the intervening owners through whom they are claiming the land. They failed to discharge the burden of proof placed on them by law. See DIKE VS. OKOLOEBO (1999) 19 NWLR (Pt.623) 359 at 363, OGUNLEYE VS ONI (1990) 2 NWLR (PT.135) 745 @ 782-783 and IGBOJIMADU VS. IBEABUCHI (1998) 1 NWLR (Pt.533) 179 at 190-191 Paras H-B. The ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court which saw and heard witnesses. An appellate court will not lightly interfere with same unless for compelling reasons. See EBBA VS. OGODO (1984) 1 SCNLR 372. The findings of fact made by the trial court are not perverse as such same cannot be faulted.
For the above reasons and the fuller ones set out by my learned brother, I too find the appeal lacks merit and should be dismissed. I order accordingly. I endorse the consequential orders contained in leading Judgment, that relating to costs inclusive.
BOLOUKUROMO MOSES UGO, J.C.A.: I have read in advance the lead judgment delivered by my learned brother Lokulo-Sodipe J.C.A. and I agree with his reasoning and conclusion that the appeal lacks merit. Consequently, I also order that the appeal be dismissed.
I also abide by the order as to costs as made in the lead judgment.
Appearances
1st and 3rd Appellants are in Court. Magnus S. EjelonuFor Appellant
AND
3rd Respondent is in Court. A. Adewumi with V. O. Amire; L. A. Fasanmi; M. O. Agbadaola (Mrs.); and O. Ajomole (Miss)For Respondent
