CHIEF ABIODUN FASUYI & ANOR v. AMODU OMOLAFE
(2015)LCN/7952(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of July, 2015
CA/AK/38/2014
RATIO
EVIDENCE: ONUS OR BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE ONUS OR BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND
In a claim for declaration of title to land, the onus is on the Plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the Defendant. The Plaintiff must satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. See Gbadamosi v. Dairo (2007) 3 NWLR (Pt 1021) 282, Dada v. Dosunmu (2006) 18 NWLR (Pt 1010) 134 and Ajiboye v. Ishola (2006) 13 NWLR (Pt 998) 628. per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF ABIODUN FASUYI
2. CHIEF PETER OBE
(Suing for themselves and on behalf of Asae family of Igoba) – Appellant(s)
AND
AMODU OMOLAFE
(For himself and on behalf of Omolafe family) – Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. ( Delivering the Leading Judgment):
This is an Appeal against the judgment delivered on 28th November 2013 in the High Court of Ondo State Akure Judicial Division wherein the Appellants were Plaintiffs and the Respondent was Defendant.
The claim of the Appellants against the Respondent contained in a Further Amended Statement of the claim was for the following:
(i) A declaration that the plaintiffs and members of their family, Asae family of Igoba Community are entitled to the right of customary occupancy of a piece of land lying and situate at Igoba via Akure, Ondo State which is bounded as follows: 1st side by Odofin family’s land, 2nd side by Abusoro community’s land, 3rd side by Sao’s family land and 4th side by Olasunmade family’s land.
(ii) N500,000.00 being the general damages for various act (sic) trespass committed by the defendant on the said land.
(iii) Perpetual injunction restraining the defendant, his family members, his agents, privies or anybody claiming through him from committing further acts of trespass on the said land.
In
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a resume, the case of the Appellants at the lower Court was that the land they claim was founded over hundred (500) years ago by Osadugba Asae, their ancestor. After the death of Osadugba, Adabiri Asae became the head of the family. He was succeeded as head of the family by Asae Agidigbi. 1st Appellant is the present head of the family. Throughout the reign of Osadugba to Asae Ologun nobody challenged the Appellants over the land until the father of the Respondent who had been granted part of land died.
Then the Respondent built a shrine there and started selling the land.
On his own part, the Respondent stated that his own land is different from that claimed by the Appellants while the land claimed by the Appellants is at Igboyeye; his own is at Okedan. Ajagun together with Odofin first founded the Respondent’s family. After the death of Ajagun, Fasae became the head of the family. He was succeeded as head of family by Olugbogi. Then Afere and Fulani Agbodunlari.
It was during the reign of Fulani Agbogunleri that the Respondent’s father’s land was shared among his children by Fulani Agbofunleri, Pa Awofate, Pa Lusi, Pa Akinola and Pa Ariku, DW3
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who is still alive.
That PW1 who testified in favour of the Appellant retracted his evidence in the Chief Magistrate Court, Akure in respect of the same matter.
After considering evidence led by both parties, the lower Court in a considered judgment dismissed the claim of the Appellants.
The Appellants then approached this Court by filing a notice of appeal containing three grounds of appeal from which they formulated the following issues for determination:
(1) Whether or not it served the interest of justice to the trial Judge to dismiss the claims of the Appellants (Claimants in the trial Court), having evaluated the evidence and found that the Respondents (Defendants in the trial Court) admitted that they had no dispute with the Appellants on the land described by them in their claim (Grounds Two and Three)
(2) Whether the trial judge was right to have made out a case for the defendants different from their case in Court. (Ground one)
On his part, the Respondent presented the following lone issue determination: Whether the learned trial Court judge was right when he held that the claimants
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(Appellants) have failed to prove their case with certainty to entitle them to judgment.
Arguing issue 1, learned counsel for the Appellants submitted that the Appellants at the trial Court were explicit, consistent and positive in claims and evidence both in examination in chief and under cross-examination as regards the identity of the land in dispute. It was submitted that considering the consistency and clarity in the description of the land the Appellants are laying claim to any surveyor armed with the proceedings would be able to produce an accurate plan of the land in dispute.
It is interesting, it was submitted, that the Respondent stated that the Appellants’ land at Igboyeye is different from his own. The Respondent, it was submitted, set up a separate description of the land in dispute in order to confuse the Court.
It was submitted that if it is conceded that the Appellants actually established the identity of the land they lay claim to and the Respondent stated that he is not disputing their ownership in respect of that with the Appellant since that one is not known to him, it is an admission on the part of the Respondent that the
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Appellants are entitled to the parcel of land described and laid claim to in their reliefs. We were referred to Section 22 of the Evidence Act, 2011.
It was further submitted that where the parties to the proceeding have given conflicting evidence in relation to the subject matter of the proceeding and the truth of the evidence about the existence or non existence of the structure of an aspect of a particular place or immovable thing cannot be properly resolved, the trial Court will be acting in the interest of justice to have a view of the place or thing and apply the Court’s visual sense in aid. We were referred to Ukaegbu & Ors v. Nwololo (2009) 1 NWLR (Pt 1127) 194 at 238 – 239, Obi & 4 Ors v. Mbionwu & 2 Ors (2002) 14 SCM 189 and Nwankpu & Anor v. Ewulu & 2 Ors (1995) 7 SCNJ 197.
It was submitted that since the Respondent claimed that his own land was different from the one claimed by the Appellants, it was in the interest of justice for the lower Court to suo motu exercise its discretion by visiting the locus in quo to clarify or ascertain the truth about the land instead of dismissing the claim of the Appellants.
More
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care also ought to have been taken in respect of the evidence of PW1 who is a member of the family of the Respondent.
That the PW1 confirmed that it was a portion of the Appellants’ land that was given to the Respondent for farming. It was submitted that it is confirmation of evidence of the appellants at the trial Court when a member of the Respondents’ family testified in favour of the Appellants. We were referred to Echere & Ezirike & Ors (2006) ALL FWLR (Pt 323) 1597 at 1605 – 6 and 1609.
It was submitted that describing the parcel of land in dispute with different names would not ordinarily change the identity of a parcel of land. We were referred to Ogbu v, Wokoma (2005) ALL FWLR (Pt 277) 815 at 830, Chief Alechenu v. Oshoke (2002) FWLR (Pt 85) 281 at 291 and Agbeje v. Chief Ajibola (2002) FWLR (Pt 92) at 16e4.
On issue 2, it was submitted that the lower Court wrongly substituted its own view in the case when it held on page 96 lines 5 to 7 of the record that the Appellants are laying claim to the piece and parcel of land occupied by or in possession of the defendants.
That the Respondent and his witnesses were emphatic that
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the land of the Appellants was at Igboyeye.
It was submitted that the lower Court cannot evolve a case for either of the parties and then proceed to give judgment in the case so formulated contrary to the case of the parties and evidence of the parties before the Court. We were referred to Edwin v. Ezuegbu (2003) 11 SCM 13J and Chabasaya v. Anwasi (2010) 10 NWLR (Pt 1201) 163 at 189.
Arguing the lone issue formulated by the Respondent, learned counsel for the Respondent submitted that it is the duty of the Plaintiff in a claim for declaration of title to prove his case by credible evidence and that he must rely on the strength of his own case and not on the weakness of the Defendant’s case except where the weakness of the Defendant’s case tends to strengthen the plaintiffs case. We were referred to Nwokudi v. Okanu (2010) 3 NWLR (Pt 1181) 362; Tanko v. Echendu (2010) 11 SCM 29, Olodo & Ors v. Josiah & Ors (2010) 10 SCM 157 and Nnabuife v. Nwigwu (2001) 39 NWLR (Pt 719) 710 at 713.
We were referred to the five ways in which title to land can be proved enunciated in Idundun v. Okunmagba (1976) 9 & 10 SC 277, Okolie v. Onyejuluwa (2000) 10 NWLR
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(Pt 676) 450, Alli v. Alesinloye (2000) 10 NWLR (Pt 660) 177, Yusuf v. Adegoke & Anor (2007) NSCCR 269 at 287 288 and Nnbuife v. Nwigwe (supra).
It was submitted that where evidence of tradition is relied upon in proof of title to land for the Plaintiff to succeed he is bound to plead and establish facts such as:
a) Who found the land;
b) How he founded the land, and
c) Particulars of intervening owners through
whom he claims.
It was submitted that since the identity of the land is not in dispute the failure of the Appellants to prove a superior title against the interest of the Respondent was fatal to the Appellants’ case.
It was further submitted that the evidence of the Respondent was more probable.
It was submitted that where a Plaintiff fails to call evidence of boundary men or survey plan, it is the survey plan tendered by the Defendant that the Court would rely on. We were referred to Odichie v. Chibogwu (1994) NWLR (Pt 354) 78 and Oluwi v. Eniola (1967) NMLR 339. The essence of a survey plan, it was submitted, is to delimit the land with sufficient particularly. We were referred to Nnadozie v. Omesu (1996) 5
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NWLR (Pt 446) 110.
The Appellants, it was submitted, failed to supply evidence of boundary men and did not produce the survey plan of the land in dispute. Therefore, the lower Court was right in relying on the survey plan Exhibits D1 and D2 which is the layout of the land as against Exhibit Pl which was tendered by the Appellants.
There is evidence, it was submitted, that the Respondent is in possession of the land in dispute and carried out the survey and layout on the land.
In my view the only issue for determination in this appeal is the lone issue presented by the Respondent for determination.
That is whether the learned trial Court Judge was right when he held that the claimants/Appellants failed to prove their case to entitle them to judgment.
In a claim for declaration of title to land, the onus is on the Plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the Defendant. The Plaintiff must satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought.
See Gbadamosi v. Dairo (2007) 3 NWLR (Pt 1021) 282,
Dada v.
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Dosunmu (2006) 18 NWLR (Pt 1010) 134 and
Ajiboye v. Ishola (2006) 13 NWLR (Pt 998) 628.
Where a Plaintiff claims a declaration of title to land and fails to give the exact extent and identity of the land he is claiming his action should be dismissed. See Gbadamosi v. Dairo (supra).
PW2 and PW4 both belong to the Appellants’ family. They are what one may call the star witnesses for the Appellants.
At page 58 of the Record of Appeal, the PW2 stated thus:
“I know the father of the defendant, Amodu Omolafe. He is late. The father of the defendant is an in-law to the family when Eyinfunjowo Fasuyi was the custodian of the land, that one of the daughters of Eyinfunjowo married Omolafe and Eyinfunjowo allocated land to Omolafe for farming purposes. The father of the defendant did not claim ownership of the land, he was paying tributes (ishakole) to the family. he (sic) brings yarn, palm oil and palm wine to the family on the land, some features are Ota Iro (rock), ota oloba(rocks), afunjeni (sic) streams, Igboyeye stream. Also on the land are kolanuts planted by our forefathers. After the death of the father of the 1st defendant the
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defendant put a shrine on the land and claimed the land. He also started to sell the land and evacuated sand on the land. He took us to the Deji’s palace. The Deji ordered him to remove the shrine and vacate the land. That the land does not belong to his father. He did not comply with the Deji’s instruction.
The family reported to subordinate Obas but he did not comply. The Obalogun of lgoba community also told him to remove the shrine that he is a stranger but he did comply. He has not complied till date.”
Under cross-examination, the PW2 said he was not aware that the Respondent took his family before the Deji of Akure over this issue. He said they did not go to the Oloba’s palace.
PW4 in his written statement on oath at page 33-34 of the Record of Appeal stated thus:
“That the defendant trespassed on the disputed land and damaged pillars and beacons on same and placed “Ayelala” shrine on the land which is still there till date with the intention of killing the claimants and members of my family.
That when the defendant trespassed on the disputed land, the claimants who are now custodians reported him to
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Obalogun of Igoba who told the defendant that his family does not own any land at Igoba and that he should stop trespassing on the disputed land.
“That the defendant has equally been evacuating sands and selling the disputed land to members of the public without the knowledge and consent of the claimants and members of my family.
That the then Deji of Akure land, Oba Adepoju Adesida told the defendant to go and remove the ‘Ayelala’ shrine he placed on the disputed land because it does not belong to him but he has refused to do so till date.”
Under cross-examination, the PW4 said at page 60 of the Record of Appeal thus:
“It is the father of Eyinfunjowo that gave him the land to farm … there was no specific boundary.
The land, the defendant is on now is the one given to his father for farming.”
………………………………………
“Yes when this incident happened we went to the palace of the Deji of Akure and he was told to vacate the land. We were not given any written decision of the Deji of Akure. Both families also
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reported to the Oloba of Oba-Ile. I do not know whether the proceedings were written. We went to the Deji and the Oloba for them to warn the defendant to leave the land.”
Although the PW4 claimed under cross-examination that he did not know if the proceedings at the Oba-Ile were written, the Respondent tendered the proceeding Exhibit “DW3” and the ruling was in favour of the Respondent’s family. PW4 both in evidence in chief and under cross-examination asserted that the Deji of Akure told the Respondent to vacate the land. But Exhibit “D3A” from the palace of Deji of Akure kingdom reads in part as follows:
“Therefore I am very much convinced that the disputed land is a complete bonafide property of Amodu Omolafe of Odopetu family. It is very glaring that Asae Chieftaincy family are intruders on the land. They are mere hungry intruders who need quick money to spend without caring legitimacy. I
hereby further direct that Asae family of Igoba and his people should not go there as from the date hereof.”
From the reaction of the PW4 to what happen both at the Oba-Ile palace and the palace of the Deji,
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it is very clear that the witness was parsimonious with the truth.
Inspite of Exhibit “D3A1” reproduced above, the PW2 in evidence in chief also claimed that the Deji ordered the Respondent to remove the shrine and vacate the land. This is a big lie. And a liar is not to be believed even when he is telling the truth. It is also not true that the Obalogun of Igoba Community told the Respondent to remove the shrine and that he was a stranger. See Exhibit DW3 which indicated that the land belongs to Odopetu family. Appellant’s family is Asae and not Odopetu family which is the Respondents’ family.
On the untruthful evidence of PW2 and PW4, the appellants’ case should have been dismissed.
Evidence of PW1 and PW3 alone could not help the case of the Appellant. It did not matter that PW1 comes from the respondent’s family.
But this is not all. From the evidence of the PW2 and PW4, it would appear that what they want declared their land is the land granted to the Respondent’s father which grant should be forfeited due to the Respondent’s misconduct. But this is not their claim. Even if it was, it was not established on the available evidence
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before the lower Court. As shown elsewhere in this judgment, the PW4 under cross-examination said that the land the Respondent is on now, is the one given to his father for farming. If that is the land the Appellants are claiming why did they not claim for it? The Court could not have granted the declaratory relief sought when it was not for the land purported granted to the Respondent’s father. In any case, they did not establish that any grant was made to the Respondent’s father and that it is the one the Respondent is on now.
Also as shown earlier in this judgment the PW4 said under cross-examination that the land given to the Respondent’s father had no specific boundaries. No Court would grant a declaration of title to land where the Plaintiff fails to give the exact extent of the land. See Gbadamosi v. Dairo (supra).
Although the case of the Appellants was unless, the Respondent nevertheless led evidence to show that the land was his own share of his inheritance. See his evidence in chief at page 40 of the Record of Appeal. See the evidence of DW3, one of those who shared the land between the Respondent and other children.
See Exhibit D5, a
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document on the sharing of the land. See other documents tendered by the Respondent for example the one from the Deji of Akure’s place Exhibit “D3A” reproduced in part above.
From what I have shown above the lone issue formulated by the Respondent should be resolved in his favour.
I accordingly resolve it in his favour.
This appeal is dismissed for want of merit.
Respondent is award N30,000 costs.
SOTONYE DENTON-WEST, J.C.A.: I agree.
MOHAMMED AMBI-USI DANJUMA, J.C.A.:
I have read the draft of the leading Judgment just delivered and concur in my Lord James Shehu Abiriyi’s reasoning and conclusion that the appeal has no merit. A party or claimant wins or loses his case on the strength of his case. The Defendant has no obligation or burden to establish the claimant’s case for him. This is more so in an action seeking a declaratory relief. This has to be established by evidence led and not even upon an admission by the opponent; see Wallesteiner v. Moir 1964 All E.R 1400 The Appellant’s simplistic assertions could not have made the Trial Judgment against him otherwise. I
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abide by the leading Judgment and the consequential order relating to costs.
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Appearances:
Kehinde Aladedutire Esq.For Appellant(s)
Chief Dapo AgbedeFor Respondent(s)
Appearances
Kehinde Aladedutire Esq.For Appellant
AND
Chief Dapo AgbedeFor Respondent
