MR. SUNDAY FAKILEDE ELEYINMI & ORS v. CHIEF J. OLAJIDE ADEBIYI (2015)

MR. SUNDAY FAKILEDE ELEYINMI & ORS v. CHIEF J. OLAJIDE ADEBIYI

(2015)LCN/8067(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of March, 2015

CA/AK/124/2013

RATIO

APPEAL: ISSUE FOR DETERMINATION; WHETHER IT IS EVERY FACT IN DISPUTE OR EVERY GROUND OF APPEAL THAT RAISES AN ISSUE FOR DETERMINATION

This is because in an appeal, it is not every fact in dispute or every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue, more often than not, it takes a combination of such facts or grounds to raise an issue. The test is whether the legal consequences of that ground or fact or a combination of those grounds or facts as framed by the Appellant if decided in his favour, will result in a verdict in his favour. See: Ibori v Agbi (2004) 6 NWLR (pt.868) 78. per. MOJEED ADEKUNLE OWOADE, J.C.A.

EVIDENCE: ONUS OF PROOF: WHETHER THE PLAINTIFF MUST SATISFY THE COURT UPON THE STRENGTH OF HIS OWN PLEADING OR THE WEAKNESS OF THE CASE OF THE DEFENDANT

This is because, 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 upon the pleadings and evidence adduced by him, he is entitled to the declaration sought.
See: Onissaodu v Ereweju (2006) 13 NWLR (Pt.998) 517; Ajiboye v Ishola (2006) 13 NWLR (Pt.998) 628. per. MOJEED ADEKUNLE OWOADE, J.C.A.

LAND LAW: IDENTIFICATION OF LAND: THE DUTY OF A PLAINTIFF WHO COMES TO CLAIM A DECLARATION OF TITLE TO LAND TO IDENTIFY THE LAND IN DISPUTE

This is because the primary duty placed on a plaintiff who comes to court to claim a declaration of title to land is to show the court clearly, the area of land to which his claim relates so that the land can be identified with certainty. In other words, in an action for declaration of title to land the onus is on the plaintiff to prove title to a defined area which the declaration can be attached. And, 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 (2007) 3 NWLR (pt.1021) 282; Aribe V Asanlu (1980) 5 – 7 SC 78; Udofia v Afia (1940) 6 WACA 216; Dada v. Dosunmu (2006) 18 NWLR (Pt.1010) 134; Idehen V Osemwenkhae (1997) 10 NWLR (Pt.525) 358. per. MOJEED ADEKUNLE OWOADE, J.C.A.

Before Their Lordships

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMAJustice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYIJustice of The Court of Appeal of Nigeria

Between

1. MR. SUNDAY FAKILEDE ELEYINMI
(HEAD, ELEYINMI FAMILY)
2. MR. ANTHONY FATUMORE
(SECRETARY, ELEYINMI FAMILY)
3. MR. GABRIEL ADEGOKE
(VICE CHAIRMAN TREASURER, ELEYINMI FAMILY)
Suing for themselves and on behalf of the Eleyinmi family of Oda.Appellant(s)

AND

CHIEF J. OLAJIDE ADEBIYI
(Secretary, Oda Community Development Committee)
Sued for Himself and as representative of Oda Community Development CommitteeRespondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of A. O. Odusola J. in the Akure Judicial Division of the High Court of Ondo State delivered on the 30th day of July, 2012.

The Appellants as Plaintiffs took out a writ of summons dated 6/8/2008 against the Respondents and by their statement of claim of 11/2/2009 claimed against the Respondents (Defendants) as follows

a. A Declaration that the compulsory and fraudulent acquisition by the Defendants of the plaintiffs family’ land situate between Emiloro and Oda Communities bounded on the first side Erelesusi family land, on the second side by Okeiya family land, on the third side by Abe family land and on the fourth side by Atipere family land is wrongful, illegal, unconstitutional null and void.

b. A Declaration that the plaintiffs are the persons entitled to the grant of statutory rights of occupancy over all that parcel of land situate between Emiloro and Oda Communities and bounded as follows:

On the first side by Erelususi family land, on the second side by Okeiya family land, on the third side by Abe family and on the fourth side Atipere family land.

c. ONE MILLION NAIRA general damages against the Defendants for the trespass committed and still being committed on the plaintiffs land which is bounded as follows:

On the first side by Erelusi family land, on the second side by Okeiya family land, on the third side by Abe family land and on the fourth side by Atipere family land.

d. An order of perpetual injunction restraining the Defendants either by themselves or by their agents, assigns, privies, and/or anyone acting for or through them from further committing acts of trespass on the Plaintiffs land situate between Emiloro and Oda Communities and bounded as follows: on the first side by Erelesusi family land, on the second side by Okeiya family land, on the third side by Abe family land and on the foufth side by Atipere family land.

Pleadings were filed and exchanged. The case of the Appellants as plaintiffs is that their family, Eleyinmi family of Oda are the owner of the land in dispute from time immemorial. That the land is known as Eleyinmi family land. It was the contention of the Appellants that during the reign of Oba Adegbemiro, an idea was mooted by Oda Community that every land owning family should voluntarily donate land to Oda Community for developmental purposes but the idea was later jettisoned after the demise of the Oba. However, in year 2000 their family received a letter from the Respondents purporting to act under the aegis of Oda Community Development Committee intimating their family of their plan to take over the Appellants family land; which plan they vehemently opposed through a letter dated 22/8/2000. That despite their protest, the Respondents trespassed on their family land and started selling same without their consent and authority.

The Respondents on their part alleged that part of the land in dispute belonged to Osupa family of which Ereyinmi family is a unit while the substantial or remaining portion belonged to Ifagburugbe Afogun family of Oda before the entire land in dispute was donated to Oda Community in 1968 consequent upon a decision by Oda Community led by Oba Adegbenro that a vast area of land covering a one mile radius be earmarked for communal development purposes to wit: Schools, Clinic, Police Station, Houses amongst others. That Oda Community as a whole mandated some of its indigenes to form a committee – Oda Development Committee – to manage the land for the benefit of the community. That the donation or the allocation of land was re-affirmed in 1983. That the allocation to their committee was as a result of the decision of the entire Oda Community including the Appellants family that a vast area of land covering a one mile radius be earmarked for communal development. The Respondents alleged that based on the general desire for communal development for common good, Ogbe High School, Oda Health Centre, Churches etc were established without any problem.

At the trial three (3) witnesses testified on behalf of the Appellants while two witnesses testified for the Respondents.

The judgment of the learned trial judge was essentially based on the inability of the Appellants (Plaintiffs) to show clearly the area of land to which their claim relates and also for the fact that the evidence proffered at the trial by the Appellants as regards the boundaries were clearly different and at variance with the pleadings. The learned trial judge in dismissing the Plaintiffs Appellants case also found that since no evidence was led in proof of the averments in the statement of claim, the issue of fraud must be deemed abandoned.

Dissatisfied with the judgment, the Appellants filed a Notice of Appeal (containing four grounds of appeal) into this court on 7/3/2013. The relevant briefs for this appeal are:

(a) Amended Appellants brief of argument dated, filed and deemed properly filed on 5/02/2014.

(b) Respondent’s brief of argument dated 11/8/2014 filed on 12/8/2014 but deemed property filed on 27/10/2014.

Learned counsel for the Appellant formulated three (3) issues for determination. They are:-

1. Whether or not the trial judge was right in dismissing the claims of the Appellants (plaintiffs in the trial court) mainly on the ground of not proving the identity of the land in dispute (Ground One).

2. Whether or not the trial judge was right in dismissing the claims of the Appellants (Plaintiffs in the trial court) having evaluated the evidence and found that the Respondents (defendants in the trial court) admitted the ownership right of the Appellants but claimed that the parcel of land in dispute was donated as a gift to the community in 1968 (Grounds Two and Three).

3. Whether or not the trial judge was right in holding that the allegation of compulsory and fraudulent acquisition of the Plaintiffs (Appellants) family land was not proved. (Grounds Three and Four).

Learned counsel for the Respondent on the other hand distilled only two issues from the Notice and grounds of appeal.

(a) Whether the learned trial judge was right in holding that evidence of the Appellants in respect of the boundaries is at variance with the pleadings (Ground one).

(b) Whether the Appellants discharged the burden of proving fraud, which amounts to crime in a civil action.

Meanwhile, the Respondent raised preliminary objection to the Appellants grounds of appeal on two scores.

(a) More than one issue is distilled and argued in respect of ground 3.

(b) The issues distilled from grounds 2 and 4 did not flow from the grounds of appeal.

Learned counsel for the Respondent reproduced Appellants Issues No. 2 and 3 as the two issues distilled from ground 3 of the Appellants Notice and grounds of appeal. He submitted that although an issue can be formulated from two grounds of appeal, two issues cannot be distilled from one ground of appeal.

He referred to the cases of Nwaigwe V Okere (2008) All FWLR (Pt.431) 843 at 858; Kalil V Yar’Adua (2004) All FWLR (Pt.225) 111 at 146 and Teriba V. Adeyemo (2010) All FWLR (Pt.533) 1868 at 1878 and submitted that it is not desirable to split a ground of appeal into a number of issues as that amounts to proliferation of issues.

Learned counsel for the Respondent submitted further that Appellants issues number 2 and 3 do not flow from grounds 2 and 4 of the grounds of appeal. He argued that ground 2 of the Notice of Appeal questions the decision of the learned trial judge for holding that “there was no proof by the plaintiffs (Appellant) of the fraudulent acquisition of the disputed land” but, that the issue in the Appellants brief of argument only relates to the evaluation of evidence and finding of fact of ownership vis-a-vis donation as a gift to the community in 1968. Likewise, counsel said, issue number 3 which is said to have been formulated from ground 4 questions the decision of the learned trial judge on the allegation of fraudulent and compulsory acquisition. This, he said could not be said to have been formulated from the omnibus ground on weight of evidence.

He submitted that issues must be formulated from grounds of appeal. And, that, any issue not formulated from the ground of appeal would go to no issue. He referred to the cases of Okolo v Union Bank Nig. Ltd (2004) All FWLR (Pt.197) 981 at 995; F.M.H. v. Comet Shipping Agencies (2009) All FWLR (Pt.483) 1260 at 1270; Teriba v Adeyemo (supra) at 1887 and concluded that as no issue has been properly formulated from grounds 2 and 4 of the grounds of appeal, they are deemed abandoned and should be struck out.

In reply, Learned counsel for the Appellants submitted first that once grounds of appeal state clearly and with precision the cause of complaints both of law and facts and also gives sufficient notice to the other side of the case he is to meet in court, the grounds would be competent. He submitted further that it is clear from the Appellants brief that three issues are formulated from the four grounds of appeal in the Notice of Appeal. That, since there are not more issues than the grounds of appeal, the Respondent’s objection should be discountenanced as it is trite that an issue may encompass two or more grounds of appeal.

After referring to the cases of Numbu V Bunu (2006) All FWLR (Pt.300) 1721 at 1722 and Garba V Yakassai (2006) All FWLR 317, 492 at 506.

Appellants Counsel submitted further that the court is not indeed bound by issues formulated by the parties. That the court has the discretion either to adopt the issues formulated or to formulate such issues that are consistent with the grounds of appeal.

He referred to the cases of Labiyi V Anretiola (1992) 8 NWLR (Pt.258) 139 and Yisi (Nig.) Ltd V Trade Bank Plc (2013) All FWLR (Pt.679) 1001.

On the submission of the Respondent that issues number 2 and 3 of the Appellants do not flow from any of the grounds, Counsel submitted that a ground of appeal encompasses its particulars and as such, a closer look at the ground would disclose that the issue actually generated from the ground.

On Ground 4, he submitted referring to the case of Saka Afuyeye & Anr V Umar & Ors (2005) All FWLR (Pt.291) 1670 at 1690 that omnibus ground covers cases where there is no or acceptable evidence to support the findings of the trial court. That, it also concerns situations in which the evidence adduced is put on an imaginary scale against that adduced by the Respondent, the evidence in favour of the Appellant. He submitted that it is not out of place for the Appellant whose position is that there was no evidence to support the learned trial judge’s position that the allegation of compulsory and fraudulent acquisition of the Plaintiff’s (Appellants) family land was not proved, to formulate such issue.

He urged us to dismiss the Respondent’s Preliminary Objection. The grounds of appeal in this appeal devoid of their particulars are as follows:

Ground One

The learner trial judge erred in law when he held that the Plaintiff’s evidence as regards the boundaries of the disputed land was clearly different and at variance with the pleadings and therefore dismissed the Plaintiffs suits.

Ground Two

The learned trial judge erred in law thereby occasioning a miscarriage of justice when he held that there was no proof by the Plaintiffs (Appellants) of the fraudulent acquisition of the disputed land.

Ground Three

The learned trial judge erred in law and wrongly evaluated and misconstrued the evidence of the plaintiffs especially PW1 and therefore came to a wrong conclusion thereby occasioning a miscarriage of justice.

Ground Four

The decision of the court is against weight of evidence.

Learned counsel for the Appellant filed four (4) grounds of appeal and distilled three (3) issues from the four grounds of appeal.
The position of the law is that issues for determination cannot be formulated to be more than the grounds of appeal.
See: Kalu v Ohuabunwa (2004) 7 NWLR (Pt.871) 1.

In the instant case, the issues formulated are not more than the grounds of appeal and it could not be said that there is proliferation of issues as alleged by the Respondent.

Secondly, Issues Nos. 2 and 3 are said to be based on Grounds Two and Three and on Grounds Three and Four of the Notice and Grounds of Appeal respectively. This position by the Appellant may be somewhat untidy but it does not render any of the grounds of appeal to be incompetent or the issues to be irrelevant.

This is because in an appeal, it is not every fact in dispute or every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue, more often than not, it takes a combination of such facts or grounds to raise an issue. The test is whether the legal consequences of that ground or fact or a combination of those grounds or facts as framed by the Appellant if decided in his favour, will result in a verdict in his favour.
See: Ibori v Agbi (2004) 6 NWLR (pt.868) 78. Flowing from the above, none of the grounds of the Respondent’s Notice of preliminary objection could be sustained against the Appellants appeal. The Notice of preliminary objection fails and it is accordingly dismissed.

This appeal shall be decided on the issues formulated by the Appellants. However, in so doing, I will consider the Appellants submissions on Issue No 1 and then consider together or in one breathe the submissions on Issues 2 and 3.

On issue 1, Learned counsel for the Appellant submitted that it is not in dispute that the Appellants and the Respondent agreed knowing the land in dispute. That a close look at paragraph 6 of the statement of claim and the evidence of the Appellants and their witnesses on pages 14, 15 and 16 show that they know the land in dispute. That paragraph 4 of the statement of defence coupled with the Defendants evidence and that of their witnesses on pages 20 to 22 of the record is that they know the land in dispute.

The Respondents, said counsel, claimed in their pleadings that part of the disputed land belong to a large family called Osupa family of which the Appellants family constitute a unit but that no evidence was led on this fact.

Counsel submitted that the Respondents equally claimed and led evidence through DW1, one Ibitoye Ademoyegun that substantial part of the land in dispute belong to another family known as Ifagbulugbe Afogun family. That he however contradicted the pleadings of the Respondents when he somersaulted during cross examination that the Appellants do not have any land in the area in dispute.

Counsel argued that it is settled law that where parties by evidence claim to know the land in dispute, there is no further requirement in law by the Appellants to prove the identity of the land since identity would no longer be in issue.

On this, counsel referred to the cases of Benjamin v Kalio (2006) All FWLR (pt.340) 1064 at 1079; Ogbe v Wokoma (2005) All FWLR (pt.277) 815 at 830.

Appellants counsel submitted further that assuming the identity was even in issue based on the boundaries given, the trial judge could have suo motu exercised his discretion justly by visiting the locus in quo to clarify or ascertain the truth about the land instead of dismissing the Appellants claims.

He referred to the case of Ipinlaye v Olukotun (1996) 6 SCNJ 74 at 93 and urged that the issue be resolved in favour of the Appellant.

Learned counsel for the Respondent on the other hand reminded us that the learned trial judge dismissed the claim of the Appellants on the ground that the evidence proffered was at variance with the Appellants pleadings.

That in paragraph 6 of the statement of claim, the Appellant pleaded and set out the boundaries of the land in dispute as follows:

i. On the first side Erelesusi family land.

ii. On the second side by Okeiya family land.

iii. On the third side by Abe family land.

iv. On the fourth side by Atipere family land.

That, however, evidence of the Appellants witnesses in respect of the above pleaded boundaries are as follows:

PW1 “1st” side by Erelesusi family land, on the left side, 2nd side by Atipere land. On the right side, the 3rd side by Emitoro town. On the 4th side by Afogun family land.

PW2: (Chief Dada Ajayi at page 16 of the Record of Appeal)

“My name is Chief Dada Ajayi. I live at No. 36 Igbotiki Street, Akure, I am a farmer. I know the plaintiff, we farm close to each other, I know why I am in the court. I know the land in dispute. I know my boundary men. I have boundary with the Eleyinmi family. The land in dispute is on the right hand side while going towards Oda town from Akure.”

Respondent’s counsel submitted that from the totality of the evidence, the boundary of the land in dispute is completely at variance with the boundaries pleaded in paragraph 6 of the statement of claim. He submitted that parties are bound by their pleadings and evidence led of facts not pleaded goes to no issue.

He referred to the cases of Nwaratu v Egboka (2006) All FWLR (Pt.338) 768 at 799; Olohunde V Adeyoju 6 SCJE 150 at 165; NIPC LTD V. The Thompson Organisation Ltd & Ors (1969) All NLR 134 at 138; Odi & Ors v. Iyalla & Ors (2004) 4 SCJL 985 at 999.

Learned counsel furthered that evidence of the Appellant witnesses on the location and identity of the land in dispute is also completely at variance with the pleading of the Appellants. That in paragraph 6 of the statement of claim, the Appellants aver that:

“The land which is the subject matter of this suit is known as Eleyinmi family land Oda. The land in dispute in this case situate between Emiloro and Oda—“.

That the implication of the above averment is that the land in dispute is at Oda.

However, that contrary to the pleadings of the Appellants, pw2 testified under cross examination that:

“I know the land in dispute. The land is within Akure but on the way to Oda town”.

Counsel submitted that in a claim for declaration of title to land or to statutory Right of Occupancy, the Plaintiff must prove ascertainable boundaries. On this Counsel referred to the case of Okedare V Adebara (1994) 3 SCJL 59 at 60.

On the submission of the Appellants counsel that the trial judge ought to have visited the locus in quo Respondents counsel referred to the case of Ezeokeke v. Uga (1962) 1 SCNJ 114 at 118 argued that whether a trial judge will visit the locus in civil proceedings is a matter of his own discretion. He submitted that it was not incumbent on the trial judge in the instant case to visit the locus in view of the contradiction between the pleadings and evidence adduced by the Appellants.

The first point to be cleared in the determination of issue No. 1 in this appeal is the assertion of the Appellants that the land in dispute is well known to the parties. That assertion in itself seems not to be borne out from the pleadings.

Paragraph 6 of the statement of claim reads thus:

6 “Plaintiffs aver that specifically, the land which is the subject of this suit is known as Eleyinmi family land, Oda. The land in dispute in this case is situate between Emiloro and Oda communities and bounded as follows:

i. On the first side Erelesusi family land.

ii. On the second side by Okeiya family land.

iii. On the third side by Abe family land and

iv. On the fourth side by Atipere family land.

The Respondents denied paragraph 6 of the Appellants claims in paragraph 3 of their statement of Defence and in further answer in paragraph 4 of the statement of Defence stated thus:

4. In answer to paragraphs 4, 5 and 6 of the statement of claim the Defendants aver as follows:

i. That part of the land in dispute actually belonged of (sic) Osupa family (of which Eleyinmi family is a unit) before it was allocated to the Oda Community first in 1968 and further re-affirmed in 1983.

ii. That substantial part of the land in dispute also belong to the Ifagbulugbe Afogun family of Oda before it was allocated to the Defendants Committee and also re-affirmed in 1983—”

It is obvious from the above averments in the pleadings of the parties that the parties are not indeed ad idem on the identity of the land in dispute, consequently, the burden of proving the identity of the land in dispute is shifted squarely to the plaintiff (Appellants) in the instant case to discharge.

In the instant case, the evidence of PW1 and PW2 were not only at variance with the Appellants pleadings as stated in paragraph 6 of the statement of claim but failed clearly to establish the exact location and boundaries of the land claimed by the Appellants.
In this respect the contention of the Appellants that the Respondents admitted the ownership right of the Appellants but claimed that the land in dispute was donated as a gift to the community is in the circumstance at best a weakness in the case of the Respondent which does not strengthen the Appellants case. This is because, 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 upon the pleadings and evidence adduced by him, he is entitled to the declaration sought.
See: Onissaodu v Ereweju (2006) 13 NWLR (Pt.998) 517; Ajiboye v Ishola (2006) 13 NWLR (Pt.998) 628.
The learned trial judge was therefore right in the instant case when he held sundrily at pages 49 – 50 of the record that:
“It is also the duty of the plaintiff who claims a declaration in respect of Statutory Right of Occupancy to show clearly the area of land to which his claim relates and if it is not so ascertained, the claim must be dismissed – Iyayi V Eyigebe (1987) 3 NWLR (Pt.61) p.523; Ezendu & Ors v Obiaowu (1986) 2 NWLR (Pt.21) p. 208 at 220.
Here the boundaries of the land claimed by the plaintiffs were pleaded in paragraph 6 of the statement of claim. The evidence proffered at the trial by the plaintiff as regards the boundaries was clearly different and at variance with the pleadings. The law is settled that where evidence is at variance with pleadings, the case must fail. See Olowosogo V Adebanjo (1988) 4 NWLR (Pt.88) p.275 at 290—-“.

Issue No. 1 is resolved against the Appellants.

On Issue 2 and 3 Learned Counsel for the Appellants submitted that “Paragraph 4 of the statement of defence admitted paragraph 4, and 5 of the statement of claim, and alleges further that apart from the plaintiffs family a larger part of the land in dispute belonged to Ifagbulugbe family” the onus shifted on the Respondents to establish the alleged gift of the family land to the community.

He argued that Exhibit B, the Plan showing property of Oda Community dated February 1986 is not an evidence of title on the Appellants family land and as far as it relates to the community. He referred to the case of Ewo v Ani (2004) All FWLR (Pt.200) 1484 at 1497 and said it is the law that a family land is quite distinct from a communal land. That Exhibit B only confirms the fact of the unlawful acquisition of the Appellants family land. The Respondents, said counsel, did not give any credible evidence of the alleged grant or gift of the family land to the community for whom they acted as representatives.

Appellants counsel adopted his argument on Issue No. 2 for Issue No. 3 and added that the mere mention of fraud in the con of the relief in the con of the relief of the Appellants does not necessarily connote crime.

He submitted that the word “fraud” is merely employed as a strong language to describe the conduct or motive of the Respondents and does not IPSO facto convert the basis of the claim to a crime to warrant the standard of proof beyond reasonable doubt as decided by the trial judge.

On this, counsel referred to the case of Arowolo v Ifabiyi (2002) 4 NWLR (pt.757) 380 – 381.

Learned counsel for the Appellant submitted further in relation to Issue 3 that the learned trial judge misconstrued the evidence of pw1 and made a wrong finding when he concluded on page 50 lines 18 – 21 of the record that the PW1 agreed that his family conceded part of the land in dispute to Oda community and that this is not borne out by the pleading. Counsel submitted that PW1 never agreed that part of the disputed land was conceded to the Oda Community. That a look at paragraph 6 of the reply to the statement of defence on page 12 of the record shows that the Appellants actually pleaded the fact that it was not the land in dispute that was conceded to the Oda Community but part of another vast land of theirs. That the trial judge was therefore wrong in substituting his own view for the evidence on record and urged that the issues be decided in favour of the Appellants.

In response to Issues 2 and 3, Learned counsel for the Respondents submitted that paragraph 12 of the Appellants statement of claim pleaded and alleged fraud against the Respondents. That the particulars of fraud were set out in paragraph 12 (a) to (f) but that, however there was no iota of evidence in proof of this averment.

He referred to the cases of Fabunmi v Agbe (1985) 1 NSCC 322; Psychiatric Hospital Management Board v Mrs. Doris Edosa (2001) 4 SCN 159 and Osibowale v Carribean Finance Ltd (2012) All FWLR (Pt.627) 730 at 739 – 740 and submitted that apart from not proving beyond reasonable doubt, the Appellants averment relating to fraud remained dead having not led evidence on it.

In determining Issues Nos. 2 and 3 little did the Learned counsel for the Appellants realise that in essence, the decision of the learned trial judge was based on the inability of the Appellants to precisely prove the boundaries of the land in dispute and/or that the failure of issue No. 1 relatedly dictates the failure of the two other issues under consideration. The reason for this as demonstrated in my decision on Issue No. 1 is that the primary duty of the plaintiff in a claim for declaration of title to land is to establish with certainty and accuracy the identity of the land he claims as a condition precedent sine qua non to the success of the claim.
See: Adeniran v Ashabi (2004) 2 NWLR (Pt.857) 375; Otanma v Youdubagha (2006) 2 NWLR (Pt.964) 337.

Beyond this, the learned trial judge was nevertheless right to have held at pages 50 – 51 of the record that:
“—-There was no shred of evidence led by the Plaintiffs with regard to fraudulent acquisition of land by the defendants. Even though fraud was pleaded and particularized, since no evidence was led in respect thereof, it can never be a substitute for the evidence required in proof of the facts pleaded. See: Ajibawo v. Arsaldo Nig. Ltd (1991) 2 NWLR (Pt.173) p.359. In the instant case, since no evidence was led in proof of the averments in the statement of claim the issue of fraud must be deemed abandoned.

Issues 2 and 3 are accordingly resolved against the Appellants.

Having resolved the three (3) issues in this appeal against the Appellants, the appeal lacks merit and it is accordingly dismissed.

N30,000.00 costs is awarded against the Appellants.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having read the leading Judgment of My Lord, M. A. Owoade, JCA, before now in its draft form, I agree that the appeal should fail.

The burden duty on the claimant for a declaration of title to land to prove with certainty the identity and extent of the land claimed was not satisfied at the trial court. Where may an order for an injunction to specifically attached as sought in the prayer(d) at the trial court? Where may an order for a declaration describing the corpus of land to be covered by a Right of occupancy be attached.

Many a good cases have been lost on account of imperfect and non description or uncertainty of the land claimed.

This and the want of proof of the assertion of fraud founded as it were on criminality allegation, compels my unequivocal consensus with the Lead Judgment and in dismissing this appeal.

The Judgment appealed against is affirmed.

JAMES SHEHU ABIRIYI, J.C.A.: I agree

Appearances

Kehinde Aladedutire for the Applicants/Appellants.For Appellant

AND

O. Adeniyan with O. TolaniFor Respondent