ALHAJI YEKINI SOLABI & ORS v. OBA SAMUEL OLUFEMI OJUGBELE & ORS
(2019)LCN/13739(CA)
In The Court of Appeal of Nigeria
On Monday, the 5th day of August, 2019
CA/IB/115/2016
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
(1). ALHAJI YEKINI SOLABI
(2). LAMINA SOLABI
(3). JIMOH JOLAOSO SOLABI
(4). FASASI SOLABI
(5). MOJIDI SOLABI
(6). IBRAHIM SOLABI
(7). ALHAJI MUTAIRU OWOEYE
(8). GANIYU OWOEYE
(9). TUNDE (A.K.A. ONE HOUR) Appellant(s)
AND
(1). OBA SAMUEL OLUFEMI OJUGBELE
(2). ALHAJI SURAJU OLUSESI
(3). BABATUNDE AKINDE
(4). CHIEF ABAYOMI OJUGBELE …1ST SET
OF RESPONDENTS
(For themselves and on behalf of
Members of Oyeyemi Asalu family of Iga, Isalu Ota)
(5). ISRAEL OLUBODE-OSO
(6). JIMOH OBA DOSUMU….2ND SET OF RESPONDENTS
(Joined by the order of Court on 29th July 2013) Respondent(s)
RATIO
WHETHER OR NOT DECLARATORY RELIEFS ARE GRANTED OR REFUSED AT THE DISCRETION OF THE COURT
It is the law that declaratory reliefs are generally granted or refused at the discretion of the Court. That being so, a party seeking a declaratory relief has the onerous burden of adducing credible and sufficient evidence to back the relief sought. In an action for Declaration of title/Statutory Right of Occupancy, like in all declaratory actions to succeed, the Plaintiff must rely on the strength of his own case. He cannot be heard to say that the Defendant admitted his claim, or led no evidence, as such declaratory relief is not granted on admissions by the Defendant or that the Defendant proffered no evidence. The Plaintiff may nevertheless rely on the aspect of the defence that supports his claim to boost his own case. It therefore means that a declaratory relief cannot be granted in the absence of evidence. Consequentially, unless where the Defendant has filed a Counter-Claim, there is no duty on him to prove anything.
See the following cases:-
– ADELEKE & ANOR VS. IYANDA & OTHERS (2001) 13 NWLR PART 729 PAGE 1.
– SUNDAY EGUAMWENSE VS. JAMES I. AMAGHIZEMWEN (1993) LPELR-1049 (SC).
– NNAEMEKA OKOYE & OTHERS VS. OGUGUA NWANKWO (2014) LPELR-23172 (SC). PER BADA, J.C.A.
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
In this appeal under consideration the Plaintiffs/1st to 4th Respondents claim for title was built on traditional history. It is settled law that, there are five ways of proving title to land. They are:-
(i). Traditional history
(ii). Production of documents of title duly authenticated and executed.
(iii). Acts of possession in and over the land in dispute extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the person in possession are true owners;
(iv). Acts of long possession and enjoyment of other land so situated or connected with the land in dispute by locality or similarity that the presumption under the Evidence Act applies; and
(v). Proof of possession of connected or adjacent land in circumstances rendering probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See the following cases:-
– IDUNDUN VS. OKUMAGBA (1976) 1 NWLR PAGE 200.
– BALOGUN VS. AKANJI (1988) 2 S.C. PART 1 PAGE 199 AT 233-234.
– AIGBOBAHI VS. AIFUWA (SUPRA)
– NWABUOKU & OTHERS VS. ONWARDI & OTHERS (2006) 5 S.C. PART III PAGE 103. PER BADA, J.C.A.
FACTORS TO PROVE WHERE A PARTY RELIES ON TRADITIONAL HISTORY AS A WAY OF OWNERSHIP OF TITLE TO LAND
Where a Plaintiff claims title to land as in this case by way of traditional history, he must plead and lead credible evidence to establish the following to the satisfaction of the Court.
(a). Who is the original founder of the land.
(b). How he founded the land; and
(c). The particulars of the intervening owners through whom the Plaintiff now claims.
All the above stated facts/ingredients must be proved by credible evidence to the satisfaction of the Court because failure to plead and prove one ingredient will lead to rejection of the Claimant?s case. PER BADA, J.C.A.
WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS
It is the law that parties are bound by their pleadings. See the following cases:-
– PDP VS. INEC & OTHERS (2014) LPELR-23808 (SC).
– AFOLABI & OTHERS VS. WESTERN STEEL WORKS LTD & OTHERS (2012) LPELR-9340 (SC).
– LIPEDE VS. SONEKAN (1995) 1 NWLR PART 374 PAGE 668 AT 686. PER BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Justice, Ota Judicial Division of Ogun State of Nigeria in Suit NO:- HCA/21/12 – BETWEEN: (1). OBA SAMUEL OLUFEMI OJUGBELE, (2). ALHAJI SURAJU OLUSESI, (3). BABATUNDE AKINDE, (4). CHIEF ABAYOMI OJUGBELE (for themselves and on behalf of members of Oyeyemi Asalu family of Iga Isalu, Ota) VS. (1). ALHAJI YEKINI SOLABI, (2). LAMINA SOLABI, (3). JIMOH JOLAOSO SOLABI, (4). FASASI SOLABI, (5). MOJIDI SOLABI, (6). IBRAHIM SOLABI, (7). ALHAJI MUTAIRU OWOEYE, (8). GANIYU OWOEYE, (9). TUNDE (A.K.A. ONE HOUR), (10). ISRAEL OLUBODE-OSO, (11). JIMOH OBA DOSUMU (10th and 11th Defendants were joined by the order of Court on 29th July 2013) delivered on the 29th day of February 2016.
Briefly the facts of the case are that, the Claimants by their 4th Amended Statement of Claim dated and filed on 15/6/2015 by paragraph 41 thereof claimed against the Defendants as follows:-
?(a). Declaration that the Claimants are the persons entitled to the Statutory Right of Occupancy over the parcels of land in dispute situate at Ajelanwa
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Olowo Igbo Village and Kajola Iboro Village via Atan Ota, Ogun State which are within the larger land of the Claimants shown in Suvey Plan No.- OG/0756/2015/LID made by I. O. Ayegbayo, Registered Surveyor and dated 18/05/2015 as well as Survey Plan No.- OG/0756/2004/016 drawn by I. O. Ayegbayo, Registered Surveyor and dated 5/11/2004.
(b). A declaration that the 1st-6th Defendants have no right or power to engage the 7th-9th Defendants as agents over the land in dispute situate at Ajelanwa, Olowo Igbo Village or sell any portion thereof.
(c). An order forfeiting the tenancy of the 1st-6th Defendants over and in respect of the portion of land granted to them by the Claimants as customary tenants situate at Ajelanwa Olowo Igbo Village.
(d). An order of possession of the said portion of land granted to the 1st-6th Defendants as customary tenants.
(e). An order forfeiting the tenancy of the 10th and 11th Defendants over and in respect of the portion of land granted to them as customary tenants by the Claimants and situate at Kajola Iboro Village.
(f). An order of possession of the said portion of land granted to the 10th and 11th Defendants as
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customary tenants.
(g). An order of perpetual injunction restraining the Defendants, their heirs, agents and privies from further remaining on the aforesaid land and for committing further acts of trespass thereon.?
Pleadings were ordered, filed and exchanged by the parties. At the conclusion of trial, Judgment was entered in favour of the Claimants in terms of reliefs (a), (b), (c), (e) and (f) set out earlier in this Judgment.
?
The learned Senior Counsel for the Appellants who is dissatisfied with the Judgment of the lower Court appealed to this Court. He formulated five issues for the determination of this appeal. The issues are set out as follows:-
?(1). Whether Claimants proved their root of title to warrant Judgment being given in their favour in the face of contradiction in the case of the Claimants and improper evaluation of the evidence led. (Distilled from Grounds 1, 2 and 12 of the Notice of Appeal).
(2). Whether the trial Judge rightly granted declaration of title to the land when the scope of the land was not proved. (Distilled from Grounds 3, 4 and 8 of the Notice of Appeal).
(3). Whether the trial Judge can
3
rightly grant declaration of title in favour of the Claimants in respect of a land in a village other than the Claimants village. (Distilled from Grounds 6).
(4). Whether the Claimants discharged the burden of proof on them to show that Appellants were their customary tenants to warrant the order of forfeiture made, when no incident of customary tenancy was pleaded and proved. (Distilled from Grounds 7, 8 and 9).
(5). Whether having regards to the case of the Claimants which is more in tandem with absolute grant, Claimants are still entitled to declaration for statutory right of occupancy, order for forfeiture and injunction. (Distilled from Grounds 10 and 11).?
The learned Counsel for the 1st-4th Respondents formulated three issues for the determination of the Appeal. The said issues are reproduced as follows:-
?(1). Whether the Claimants proved title to the land in dispute as required by law. (Distilled from Grounds 1, 2 and 12).
(2). Whether the Claimants proved identity of the land in dispute. (Distilled from Grounds 3, 4, 5 and 6).
(3). Whether the Claimants proved that the Appellants were their customary tenants
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and therefore entitled to orders of forfeiture and possession of the land in dispute. (Distilled from Grounds 7, 8, 9, 10 and 11).?
At the hearing of this appeal on 20/5/2019, the learned Senior Counsel for the Appellants stated that the appeal is against the Judgment of High Court of Justice, Ogun State in the Ota division delivered on 29/2/2016.
The original Notice of Appeal was filed on 1/3/2016 but it was later amended. The amended Notice of Appeal was filed on 20/10/2016 and deemed as properly filed on 21/3/2018. The Amended Appellant?s brief was filed on 28/10/2016 and deemed as properly filed on 21/3/2018.
The Appellants? Reply Brief of Argument to the 1st to 4th Respondents was filed on 20/2/2019.
The learned Senior Counsel for the Appellants adopted and relied on the two briefs as his argument in urging that the appeal be allowed.
?
On the other hand, the learned Counsel for the 1st to 4th Respondents also referred to the 1st to 4th Respondents? Brief of Argument filed on 20/2/2019 which was deemed as properly filed on 6/2/2019. He adopted and relied on the said 1st to 4th Respondents? brief as his
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argument in urging that this appeal be dismissed.
I have perused the issues formulated for the determination of this appeal by Counsel for the parties. The issues are more or less the same. The 1st to 4th Respondents issues are encapsulated in the issues formulated on behalf of the Appellants. I will therefore rely on the issues formulated for the determination of this appeal on behalf of the Appellant.
ISSUES FOR THE DETERMINATION OF THE APPEAL
ISSUE NO. 1
?Whether the Claimants proved their root of title to warrant Judgment being given in their favour in the face of contradiction in the case of the Claimants and improper evaluation of the evidence led. (Distilled from Grounds 1, 2 and 12).?
The learned Senior Counsel for the Appellants submitted that there are five basic ways of proving titled to land as enunciated in the case of – BALOGUN VS. AKANJI (1988) 2 SC PART 1 PAGE 199 AT 233 TO 234.
It was stated that the Claimants relied on traditional history as their root of title. He relied on the following cases-
– EGBO VS. AGBARA (1997) 1 SCNJ PAGE 91 AT 112.
-IDUNDUN VS. OKUMAGBA (1976) 9-10 SC PAGE
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227.
It was also contended on behalf of the Appellants that the 1st to 4th Respondents did not prove the particulars of the intervening owners through whom they claimed, for example who succeeded Oyeyemi as the owner of the land and how the land was vested on those people.
The learned Senior Counsel for the Appellants submitted that paragraphs 9 and 15 of the 4th Amended Statement of Claim of the Respondents are contradictory.
He concluded his submission that the 1st to 4th Respondents failed to prove the particulars of intervening owners through whom the Claimants are claiming and therefore that their claim should be dismissed.
The learned Counsel for the 1st to 4th Respondents in his response submitted that there are five distinct ways by which title to or ownership of land in Nigeria could be proved. He relied on the case of ? AIGBOBAHI VS. AIFUWA (2006) ALL F.W.L.R PART 303 PAGE 202 AT 213 PARAGRAPHS A-E. He stated that the 1st to 4th Respondents relied on (a) Traditional evidence and (b) Proof of possession of connected or adjacent land.
?
He contended that with respect to proof by traditional evidence, the 1st to 4th
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Respondents traced their root of title to their progenitor, Oyeyemi Asalu who hailed from Ile-Ife several centuries ago and who in the course of hunting expedition founded and settled on the parcel of land known as Igbo Asalu, which is verged Blue in the dispute Plan No.- OG/0756/2015LID 001 dated 18/5/2015 which was admitted in evidence at the lower Court as Exhibit 012.
In support of 1st to 4th Respondents case, learned Counsel for the 1st to 4th Respondents referred to the two statements made by CW1 Oba Samuel Olufemi Ojugbele which was deposed to on 17/3/2014 which he said was attached to the further Amended Statement of Claim (see pages 413-432 of Vol. 1 of the Record of Appeal).
The 2nd statement on oath was deposed to on 16/5/2014 and attached to the Reply to the 1st to 9th Defendant?s Statement of Defence was made by CW4 Mr. Babatunde Akinde.
In their traditional history, the 1st to 4th Respondents through the evidence-in-chief of CW1 and CW4 narrated how their progenitor ? Oyeyemi who hailed from Ile-Ife founded and settled on the land called Igbo Asalu which includes the land in dispute.
?
With respect to their
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genealogy, it was stated that the Respondents testified that: – Oyeyemi begat Ilo and
– Ilo begat Agbebi, Otegbola, Ojugbele, Idowu, Arowungbedi and Akinjobi who inherited the land after the death of Ilo.
It was stated further that Ojugbele referred to above begat Alfred Ayankunle Ojugbele and Lasisi Fashina among others. And Alfred Ayankunle Ojugbele that begat Oba Samuel Olufemi Ojugbele who is the 1st Respondent and CW1. It was the aforesaid Lasisi Fashina that begat Chief Abayomi Ojugbele who is the 4th Respondent.
The learned Counsel for the 1st to 4th Respondents also stated that the 1st to 4th Respondents testified that it is the descendants of Oyeyemi that now constitute and are known as Oyeyemi Asalu Family. It was also stated that the Respondents in the past defended their title to portions of the land they inherited from Oyeyemi known as Igbo Asalu in suit No. 77/41: Salami Vs. Akinde at the Native Court of Ake Grade ?A? Abeokuta which went on appeal in suit No. 2/1944: Salami vs. Akinde. He stated that the two Judgments are Exhibits ?003? and ?005? respectively. And also suit No. 75/25:
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Olobi Vs. Dan Ogedengbe at the Native Court Ake Grade ?A? Abeokuta. The 1st to 4th Respondents were said to have testified that two parcels of land were granted to the forefathers of the Appellants as customary tenants.
The Appellants argued that the 1st to 4th Respondents did not trace their root of title to Oyeyemi because they did not state how Ilo got the land from Oyeyemi whether it was by grant, purchase or inheritance.
The learned Counsel for the 1st to 4th Respondents urged that the submission of Counsel for the Appellants be discountenanced because it is trite that under the customary land law that upon the death of an owner, his property devolves on the children. He relied on the following cases:-
– UKA VS. UKAMA (1963) 1 FSC PAGE 184.
– ADESEYE VS. TAIWO (1956) 1 FSC PAGE 84.
The learned Counsel for the 1st to 4th Respondents finally urged that this issue No. 1 be resolved in favour of the 1st to 4th Respondents.
?
The learned Senior Counsel for the Appellants in the Reply Brief of Argument reiterated his earlier submission that the 1st to 4th Respondents having predicated their root of title on
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traditional history, they have not been able to plead and prove how the land devolved from the 1st founder to the present Claimants without a break. He therefore urged that this issue No. 1 be resolved in favour of the Appellants and against the Respondents.
RESOLUTION
A careful reading of the 1st to 4th Respondents claims against the Appellants would reveal that the principal relief sought is for declaration of title i.e. Statutory Right of Occupancy over the parcels of land in dispute situate at Ajelanwa Olowo Igbo village and Kajola Iboro village via Atan Ota, Ogun State. The other reliefs are ancillary to the main claim.
?It is the law that declaratory reliefs are generally granted or refused at the discretion of the Court. That being so, a party seeking a declaratory relief has the onerous burden of adducing credible and sufficient evidence to back the relief sought. In an action for Declaration of title/Statutory Right of Occupancy, like in all declaratory actions to succeed, the Plaintiff must rely on the strength of his own case. He cannot be heard to say that the Defendant admitted his claim, or led no evidence, as such declaratory
11
relief is not granted on admissions by the Defendant or that the Defendant proffered no evidence. The Plaintiff may nevertheless rely on the aspect of the defence that supports his claim to boost his own case. It therefore means that a declaratory relief cannot be granted in the absence of evidence. Consequentially, unless where the Defendant has filed a Counter-Claim, there is no duty on him to prove anything.
See the following cases:-
– ADELEKE & ANOR VS. IYANDA & OTHERS (2001) 13 NWLR PART 729 PAGE 1.
– SUNDAY EGUAMWENSE VS. JAMES I. AMAGHIZEMWEN (1993) LPELR-1049 (SC).
– NNAEMEKA OKOYE & OTHERS VS. OGUGUA NWANKWO (2014) LPELR-23172 (SC).
In this appeal under consideration the Plaintiffs/1st to 4th Respondents claim for title was built on traditional history. It is settled law that, there are five ways of proving title to land. They are:-
(i). Traditional history
(ii). Production of documents of title duly authenticated and executed.
(iii). Acts of possession in and over the land in dispute extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the
12
person in possession are true owners;
(iv). Acts of long possession and enjoyment of other land so situated or connected with the land in dispute by locality or similarity that the presumption under the Evidence Act applies; and
(v). Proof of possession of connected or adjacent land in circumstances rendering probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See the following cases:-
– IDUNDUN VS. OKUMAGBA (1976) 1 NWLR PAGE 200.
– BALOGUN VS. AKANJI (1988) 2 S.C. PART 1 PAGE 199 AT 233-234.
– AIGBOBAHI VS. AIFUWA (SUPRA)
– NWABUOKU & OTHERS VS. ONWARDI & OTHERS (2006) 5 S.C. PART III PAGE 103.
Where a Plaintiff claims title to land as in this case by way of traditional history, he must plead and lead credible evidence to establish the following to the satisfaction of the Court.
(a). Who is the original founder of the land.
(b). How he founded the land; and
(c). The particulars of the intervening owners through whom the Plaintiff now claims.
All the above stated facts/ingredients must be proved by credible evidence to the
13
satisfaction of the Court because failure to plead and prove one ingredient will lead to rejection of the Claimant?s case.
The 1st to 4th Respondents projected settlement as their root of title which they claimed Oyeyemi, their ancestor established. In paragraphs 5, 7 and 14 of the 4th Amended Statement of Claim it was pleaded thus:-
?(5). From Iga Isalu, Oyeyemi hunted far and wide and in the course of his hunting activities he cultivated and farmed on a large parcel of land at a place now known as Orita Isalu which became his land under native law and custom.
(7). Apart from the foregoing Oyeyemi farmed and hunted on another large virgin forest later called Igbo Asalu and this large forest became his under the native law and custom. It is a portion of this forest land that is now in dispute.
(14). The land founded by Oyeyemi and known as Igbo Asalu shares boundary with Ilobi family, Alori family, Dada Ogedengbe family, Koko Village, Fatusi Ogedengbe family and Ore stream, the land is shown in Survey Plan No. – OG/0756/2004/016 drawn by I. O. Ayegbayo Registered Surveyor and dated 5/11/2004. The same land measuring 2570.575
14
hectares (6351.890 acres) with more details is shown and verged blue in Survey Plan No.- OG/0756/2015/LID 001 made by I. O. Ayegbayo, Registered Surveyor and dated 18/05/2015. The two Survey Plans will be tendered during the trial of this action.? (See page 620 of the record of Appeal).
A perusal of the pleading of 1st to 4th Respondents in their 4th Amended Statement of Claim would seem to have satisfied the first two ingredients to be pleaded and proved by a Claimant relying on traditional history to sustain a claim of Declaration of title to land.
In this case, the Claimants did not make out a case of settlement on Ajelanwa Olowo Igbo Village.
The Claimants i.e. 1st to 4th Respondents failed to satisfy the third requirement which is ?particulars of the intervening owners through whom they claim?
?Also the Claimants claimed that they are the direct children of Oyeyemi whom they claimed founded the land. Therefore they must plead and prove the link which they have with Oyeyemi to show by positive evidence how the land devolved from Oyeyemi down the line before the land became their own. Failure to establish this link is
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fatal to the Claimants i.e. 1st to 4th Respondent?s case.
The position above will now lead me to consider paragraphs 9 and 15 of the 4th Amended Statement of Claim.
In paragraph 9, the Claimant pleaded thus:-
?The yield of the land was also good and in the course of time Oyeyemi built more huts on the land for himself his children and farm hands that were working with him on the land and when this settlement became developed, Oyeyemi called it Onse Olose.?
I am of the view that the pleading above showed that Oyeyemi had children but the Claimants did not name all the children of Oyeyemi which was expressly pleaded.
It is the law that parties are bound by their pleadings. See the following cases:-
– PDP VS. INEC & OTHERS (2014) LPELR-23808 (SC).
– AFOLABI & OTHERS VS. WESTERN STEEL WORKS LTD & OTHERS (2012) LPELR-9340 (SC).
– LIPEDE VS. SONEKAN (1995) 1 NWLR PART 374 PAGE 668 AT 686.
In paragraph 15 of the 4th Amended Statement of Claim it was pleaded thus:-
?The Claimants are descendants of Oyeyemi, Oyeyemi begat Ilo, Ilo begat Agbebi, Otegbola Ojugbele, Idowu,
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Arowungbedi and Akinjobi who inherited the land after the death of Ilo.? (See page 622 of the Record of Appeal).
A perusal of paragraph 9 and 15 reproduced above would reveal that the Claimants pleaded Ilo as the direct offspring of Oyeyemi. They were silent on the other direct offspring of Oyeyemi that were pleaded in paragraph 9 of the same pleading as children working with him on the land.
In my view it is evident that there is a serious contradiction in the case of the Claimants as to the Children or direct issue(s) of Oyeyemi. Which one is correct? Did Oyeyemi actually have a child or children?
The Implication of Oyeyemi having children as against a child is very clear in that, if he had children then Claimants have decided to suppress their names.
In view of the foregoing, the Claimants cannot be granted a declaration of title/statutory Right of Occupancy to the land that does not exclusively belong to them.
See ? DADA VS. BANKOLE (2008) 5 NWLR PART 1079 PAGE 26 AT 53 where it was held among others as follows:-
?The evidence of 2nd PW above conveys that it was part of the land given to Akilolali/Owolola
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family that the Owolola family gave to the Defendant as customary tenant. Remarkably, Owolola family is not a party to this case. Further, the evidence suggests that Alfa Salisu Fatusi owns a portion of the land being litigated upon in this case and he has not been made a party. If the Plaintiff has not joined Owolola and Alfa Salisu Fatusi to the suit, how could a declaration of title be made in Plaintiff?s favour? See ? SANYAOLU VS. COKER (1983) 1 SCNLR PAGE 170 AT 181.
– ODUOLA VS. GBADEBO COKER (1981) 5 S.C. PAGE 197 AT 220.?
Based upon the foregoing I am of the view that the learned trial Judge ought to have made a finding of fact on whether Oyeyemi actually had children or Ilo was his only child. Where a finding of fact is not made on a crucial issue like this an appeal will be allowed. See ? KARIBO VS. GREND (1992) 3 NWLR PART 230 PAGE 426.
It is also to be noted that there is contradiction in the Claimants pleading as to the number of children of Oyeyemi. Paragraphs 9 and 15 contradicted each other, which one is to be believed.
?Another area to consider is where the Claimants claimed that the children of Ilo
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inherited the land from Oyeyemi after his death (see paragraph 15 on page 622 of the record and earlier reproduced in this Judgment). The question that comes to mind is how did the land devolved on Ilo? Was it by purchase, grant or inheritance? No facts was pleaded on how Ilo became the owner of the land after the death of Oyeyemi.
I am of the view that until the Claimants established by evidence how the land devolved on Ilo from Oyeyemi, there is nothing anybody can inherit from Ilo contrary to paragraph 15 of the 4th Amended Statement of Claim. The Court cannot speculate in this case, it must be by cogent evidence.
See ?OGBONNA VS. OGBUJI (2014) 6 NWLR PART 1403 PAGE 205.
?A second look at paragraph 9 of the 4th Amended Statement of Claim earlier reproduced in this Judgment would reveal that there were other children of Oyeyemi who were also entitled to the land of their father ? Oyeyemi. Therefore given the fact that the Claimants are seeking for declaration of title to land, they must prove by positive evidence, how the land of Oyeyemi solely devolved on Ilo at the expense of other children of Oyeyemi. The Claimants having
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pleaded that Oyeyemi had children, it is not open to them to contradict their pleadings and now say that, Oyeyemi had only a child. That piece of evidence will certainly go to no issue having contradicted the pleading filed. See ?
– SUBERU VS. STATE (2010) 8 NWLR PART 1197 PAGE 586 AT 612.
There is therefore a gap in the chain of intervening owners through whom the Claimants are claiming and this defect has ruptured the flow of interest from Oyeyemi to the fore bears of the present Claimants.
I am therefore of the view that the Claimants i.e. 1st to 4th Respondents have failed to prove their root of title to warrant Judgment being given in their favour in the face of their failure to plead and prove devolution of land from the 1st founder to the present Claimants without a break, and also in view of the improper evaluation of the evidence led.
In AWODI VS. AJAGBE (2014) LPELR-24219 (SC) it was held among others that:-
.the law is now settled that where a person relies on traditional history as his root of title to land, the onus is on him to plead the root of title and the names and history of his ancestors. He
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should lead evidence to show same without leaving any yawning gap. A Court has no jurisdiction to supply any missing link in a genealogical tree from progenitors to a Claimant. See –
– MOGAJI VS. CADBURY (1986) 2 NWLR PART 47 PAGE 393.
– ANYANWU VS. MBARA (1992) 5 NWLR PART 242 PAGE 386.
– AKINLOYE VS. EYIYOLA (1968) 2 NMLR PART 92.
– OWOADE VS. OMITOLA (1988) 2 NWLR PART 77 PAGE 413.
– And ODI VS. IYALA (2004) 4 SCNJ PAGE 35 AT 54.
Further the weakness of the Defendant?s case in a land matter touching on declarations does not assist the Plaintiffs case. He sinks or floats with his case. See the case of ANIMASHAUN VS. OLOJO (1991) 10 SCNJ PAGE 143.?
Consequent upon the foregoing this issue No.1 is resolved in favour of the Appellants and against the 1st to 4th Respondents.
ISSUES NO. 2 AND 3 (TAKEN TOGETHER)
– Whether the trial Judge rightly granted declaration of title to land when the scope of the land was not proved. (Distilled from Grounds 3, 4 and 5).
– Whether the trial Judge can rightly grant declaration of title in favour of the Claimants in respect of a land in a village
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other than the Claimants? village. (Distilled from Ground 6).
The learned Senior Counsel for the Appellants contended that this issue is to consider propriety of the declaration of title to land granted in favour of the Claimants despite the fact that the identity of the land was not proved. He referred to paragraphs 41(a), (b) and (c) of the 4th Amended Statement of Claim earlier set out in this Judgment. (See also page 627 of the Record of Appeal).
It was pointed out that the land in question is a village land. He also referred to paragraphs 7, 14 and 28 of 4th Amended Statement of Claim. This is contained on pages 620 to 624 of the Record of Appeal.
It was contended that the above pleadings referred to, showed that, the land the subject matter of this suit is not definite.
The learned Senior Counsel for the Appellants submitted that Claimants must establish the identity of the land in dispute. He also referred to paragraphs 3 and 4 of Amended Statement of Defence on page 433 of the Record of Appeal.
?
He submitted that the Claimants failed to discharge the legal burden of proving the identity of the land they are claiming.<br< p=””
</br<
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It was contended on behalf of the Appellants that as at the time CW1-CW9 gave evidence, the only survey plan in evidence was Exhibit ?002? and in that exhibit the land in dispute was not shown.
It was also argued that the Claimants pleaded six (6) features and families as their boundaries but only two families were called to give evidence. Therefore the remaining four boundaries were not proved.
The learned Senior Counsel for the Appellant also spelt out the position of the law that declaration of title cannot be granted to a person in respect of a parcel of land that belong to another person. He relied on the case of ?
– DADA VS. BANKOLE (SUPRA)
It was also pointed out by Counsel that the land in respect of which the Claimants are seeking declaration of title to, is in Ajelanwa Olowo Igbo Village and that the village itself is a community named after the progenitor of Bankole Family. He referred to paragraphs 13 and 31 of the 4th Amended Statement of Claim. (See pages 622-625 of the record of appeal).
?
In his response the learned Counsel for the Respondents contended that where parties know the land in dispute or
23
where a Defendant does not disagree on the identity of the land in dispute then identity will not be in issue. But where the Defendant disagrees on the identity of the land in dispute and he raises it in his pleadings, it becomes compelling for the Claimant to prove the identity of the land.
He relied on the following cases of ?
– AGBONRAN II VS. AYODELE (2002) ALL FWLR PART 86 PAGE 522 AT 524.
-ANYANWU VS. UZOWUAKA (2009) ALL FWLR PART 499 PAGE 411 AT 436.
It was therefore submitted on behalf of the Respondents that the identity of the land in dispute was not in issue. He went further that since the Appellant did not file a composite plan he is bound by the identity shown in the Claimant?s plan and cannot raise the issue of identity at address stage. He relied on the case of ? IGWE VS. KALU (2002) FWLR PART 97 PAGE 677 AT 679.
– ODIBENDI VS. OKOLIE (2010) 13 NWLR PART 1210 PAGE 45 AT 60.
?
On the issue of contradictory plans i.e. Exhibits 002 and 012. He argued that the former was made in 2004 as a perimeter survey which did not have all details required in a dispute plan while Exhibit 012 is actually a
24
dispute plan.
It was also argued that the Appellants did not file any counter plan and their surveyor was not called to contradict the accuracy of the Respondents? plan.
It was also submitted on behalf of the 1st to 4th Respondents that, where it has been shown that identity of the land in dispute was not in issue and the lower Court had so found, it was not necessary for the 1st to 4th Respondents to call their boundary men.
It was finally submitted that the lower Court was justified in granting Judgment to the Respondents based on Exhibit 012. The learned Counsel for the 1st to 4th Respondents predicated their case on both Exhibits 002 and 012 and it was upon the two exhibits which are complimentary that Judgment was given. He urged that these issues be resolved in favour of the 1st to 4th Respondents.
In his Appellant?s Reply Brief to the 1st to 4th Respondents learned Senior Counsel for the Appellants reiterated his earlier submission that the identity of the land in dispute in this case was not proved.
RESOLUTION
In this case in which the 1st to 4th Respondent were granted declaration of title over the land in
25
dispute the contention of the Appellants is that in an action for declaration of title to land, the onus is on the Plaintiff to establish with certainty and precision the area of the land to which his claim relates because no Court will grant a declaration of title to land where the scope of the land is not ascertained. See ? AREMU VS. ADETORO (2007) 16 NWLR PART 1060 PAGE 244 AT 257.
The learned Counsel for the 1st to 4th Respondents on the other hand contended that where parties know the land in dispute or where the Defendant does not disagree with the land to which a Claimant?s case relates, the identity will not be in issue and the duty to prove the identity will not arise.
Let me now go back to the pleadings. Paragraphs 41(a), (b) and (c), which reads thus:
?41(a). Declaration that the Claimants are the persons entitled to the Statutory Right of Occupancy over the parcels of land in dispute situate at Ajelanwa Olowo Igbo Village and Kajola Iboro Village, via Atan Ota, Ogun State which are within the large land of the Claimants shown in Survey Plan No. OG/0756/2015/LID 001 made by I. O. Ayegbayo, Registered Surveyor and
26
dated 18/05/2004/016, drawn by I. O. Ayegbayo, Registered Surveyor and dated 5/11/2004.
(b).A declaration that the 1st?5th Defendants have no right or power to engage the 7th?9th Defendants as agents over the land in dispute situate at Ajelanwa Olowo Igbo Village or sell any portion thereof.
(c). An order forfeiting the tenancy of the 1st?6th Defendants over and in respect of the portion of land granted to them by the Claimants as customary tenants situate at Ajelanwa Olowo Igbo Village.?
(See page 627 of the record of appeal).
The above reliefs show that the land in dispute is a village land.
Claimants also pleaded in paragraphs 7, 14 and 28 as follows:-
?7. Apart from the foregoing, Oyeyemi farmed and hunted on another large virgin forest later called Igbo Asalu and this large forest became his own under the native law and custom. It is a portion of this forest land that is now in dispute.
14. The land founded by Oyeyemi and known as Igbo Asalu shares boundary with Ilobi family, Alori family, Dada Ogedengbe family, Koko village, Fatusi Ogedengbe family and Ore Stream; the land is shown in
27
Survey Plan No. OG/0756/2004/016, drawn by I. O. Ayegbayo, Registered Surveyor and sated 5/11/2004. The same land measuring 2570.575 hectares (6351.890 acres) with more details is shown and verged Blue in Survey Plan No. OG/0756/2015/LID 001 made by I. O. Ayegbayo, Registered Surveyor and dated 18/05/2015. The two Survey Plans will be tendered during the trial of this action.
28. As a result of this sad development, the children of Solabi were unhappy and approached James Akinde (otherwise known as Akide) referred to in paragraph 19 above and sought for land to farm and the latter obliged and granted them a portion of his family land at Onse Agbedi to live and another portion at Ajelanwa Olowo Igbo Village to farm as customary tenants. Alori family shares boundary with the Claimants. The family house of the Solabis built on the land granted to them therefore in Onse Agbedi Village as well as the portion of land granted to them to farm at Ajelanwa Olowo Igbo Village measuring 13.843 hectares are shown in Survey Plan No. OG/0756/2015/LID 001 made by I. O. Ayegbayo, Registered Surveyor and ated 18/05/2015. The farm land of the Solabis in Ajelanwa Olowo Igbo
28
Village is therein verged Red.?
(See pages 620 to 624 of the record of appeal).
The pleading set out above showed that the land disputed is not definite, the identity must be established.
And reacting to the above pleadings the 1st to 9th Defendants now Appellants pleaded in paragraphs 3 and 4 of the Amended Statement of Defence as follows:-
?3. The Defendants state that Ajelanwa Olowo Igbo Village is only a portion of their land which includes Egan Village, Olojede Village, Onse Olose Village, Adekanbi Village (extinct) Ayo Village (extinct) etc. a combination of which is known commonly called Agbedi Orita.
4. The Defendants deny paragraphs 3 to 19 of the Claimants? Statement of Claim and put the Claimants to strict proof thereof.?
(See page 433 of the record of appeal Volume 1).
?As could be seen from the pleading set out above, the Appellants stated emphatically that the land being claimed formed part of their village land which belongs to them. They went ahead to deny paragraphs 3 to 19 of the Claimants Statement of Claim which included averment as to boundary men being relied upon by the
29
Claimants.
The boundaries of the land in dispute, has been denied. It was therefore an error on the part of learned trial Judge to state that the identity of the land is not in dispute.
In the discharge of the legal burden of proving the identity of the land they are claiming, the Claimant?s took the issue with levity.
At the trial the CW1 adopted three statements on oath, they are:
– (a).Statement dated 17/3/14 on pages 348-358 of the record
– (b).Statement dated 16/5/2014 on pages 511-522 of the record.
– (c).Statement dated 16/5/2014 on pages 523 to 527 of the record.
A careful reading of the three statements of CW1 referred to above did not make reference to the identity of the land especially the boundaries.
Exhibit ?002? i.e. the Survey Plan was tendered through this witness admitted that the land in dispute, Oyeyemi Asalu Village is not in the Survey Plan Exhibit ?002?
It is also enlightening to note that, the Claimants in paragraph 14 of the 4th Amended Statement of Claim pleaded that Oyeyemi land measured 2570.575 hectares i.e. 6351.890 acres, CW1 stated under
30
Cross-Examination that the scope of Asalu land is about 6000 acres. It could be seen that the land in dispute is only a part of the 2570.575 hectares which is 6351.890, pleaded and about 6000 acres was the evidence of CW1.
CW2 ? when asked ? what is the size of Ajelanwa Olowo Igbo Village? He answered by saying ?it is big?.
(See page 882 of the record of appeal).
CW4 ? in his witness statement on oath on pages 528 to 593 and 593-599 did not testify as to the scope of the land. He said nothing about boundary men.
Under Cross Examination he stated that the land was over 6000 acres.
CW5 ? did not say anything about the scope of the land in dispute.
CW6 ? under Cross Examination claimed that he did not know the size of land being claimed by the Claimants (See page 898 of the record)
CW7 – under cross examination stated that he did not know the land in dispute and he did not know how big it is. (See page 899 of the record)
CW8 – who was called as a boundary man to the Claimants – when asked how big the land in dispute is? He said- ?he cannot say how big the land in dispute is
31
but that the Claimants have large land and they are boundary mate?. (See page 901 of the record).
CW9 ? also a boundary man to the Claimants but did not state the scope of the land in dispute.
It must be noted that as at the time CW1 to CW9 testified the only survey plan in evidence was Exhibit ?002? and the land in dispute was not shown in Exhibit ?002?. This was admitted under cross examination of CW1.
It must also be observed that after the star witnesses had testified CW10 prepared Exhibit 012 which he tendered in evidence. He admitted that when he visited the land the first time he prepared Exhibit ?002? which did not show Oyeyemi Asalu land. He now showed it on Exhibit ?012?.
With the evaluation of evidence done above, it could not be said that the Claimants proved the identity of the land in dispute.
Furthermore, CW1 and CW4 predicated their claims on plan No. OG/756/2004 which was admitted as Exhibit ?002?. They did not predicate the scope of their land on Exhibit ?012?. This Exhibit ?012? is like a document dumped on the Court because
32
there was no evidence to explain things inside it. The lower Court should not have relied upon it.
Another area to note is that part where it was stated that the land being claimed by the Appellant as contained in the Respondents Writ of Summons is named Ajelanwa Olowo Igbo Village but the land purportedly settled upon by the Claimants? progenitors Oyeyemi was said to be named as Onse Olose but there is no averment in the Claimants? pleading explaining the nexus between the land called Onse Olose and Ajelanwa Olowo Igbo village.
It is settled law that a declaration of title cannot be granted to a person in respect of a parcel of land which belong to another person. See the case of ? DADA VS. BANKOLE (SUPRA).
The relief of the Claimants showed that the Claimants sought for declaration of title to the land in Ajelanwa Olowo Igbo Village. The village itself was named after the progenitor of Bankole Family. See paragraphs 13 and 31 of the 4th Amended Statement of Claim which provides thus:-
?13. The portions of land granted to some of these tenants also grew and became villages and these included:
1. Ajelanwa Olowo
33
Igbo Village;
2. Kajola Iboro Village;
3. Moseri Village;
4. Adekanmbi Village;
5. Olatilewa Village;
6. Ikewe Village;
7. Molasin Village;
8. Ologede Village;
9. Abiola Village,
While some of these villages are now ruined others still exist till date.
31. The descendants of Solabi have been on the Claimants’ land and have been using same to farm since the day of the grant and this fact is well known to residents of Ajelanwa Olowo Igbo Village including Bankole family after whose progenitor Ajelanwa Olowo Igbo Village was named.”
(See pages 622-625 of the record).
The Claimants in this case did not call any member of Bankole family to testify that Claimants granted the land to their progenitor Bankole.
All that could be deduced from this is that the Claimants admitted the grant of the land constituting Ajelanwa Olowo Igbo Village to the progenitor of Bankole family and this has put beyond doubt the reality that a customary tenant enjoys perpetuity of tenor.
?Therefore, from the pleadings and evidence there is the presumption to the effect that a person whom a village is named is the
34
owner of the land in the village.
In DADA VS. BANKOLE (2008) 5 NWLR PART 1079 AT PAGE 26 PAGE 51-52 it was held as follows:-
?The Defendant gave evidence that the land was called Osidana after their ancestor who first settled on the land. The Plaintiff agreed that the land was called Isidana which appears to be the corrupted version of Osidana. How did a parcel of land given out under customary law come to bear not the names of the landlords or owners but that of the tenant? The Court below at page 466 of the record made a remark on this thus:
“The 2nd PW in the underlining alone of his testimony stated that his ancestor did not give name to the land in dispute but the land is being called by the name given it by the Appellant although the naming or calling of the land in dispute may be called by one party and named differently by the other party. It is unheard or preposterous to accept to name a land by a person alleged to be a customary tenant. Also though Respondent alleged that Appellant was a customary tenant yet 2nd PW admitted that they built on the land in dispute and farmed on land in dispute, it is into law that a customary
35
tenant cannot name the land in his own name as against the landlord’s name.?
Also in OWOADE VS. OMITOLA (1988) 2 NWLR PART 77 PAGE 413 AT 422-423 it was held among others as follows:-
“Indeed this possession by Salako, through whom the Appellant claims, was not disputed by the Respondent Rather it was the Respondent’s case that Salako was then in possession of the land in dispute not as owner but as a customary tenant of the Respondent’s predecessor-in-title. The learned judge by failing to advert to these conflicting claims and to balance the evidence given on the issue one against the other did not make any finding on the point. In any event, even by the case which the Respondent put forward on the issue, one must ask: what happened to the possessory right of Salako as a customary tenant? It is, of course, settled law that unless his tenancy is forfeited by order of Court on a suit for forfeiture, a customary tenant enjoys perpetuity of tenure: See OBIDINAKA EJEANALONYE & ORS.V. IKPENDU OMABUIKE & ORS. (1974) 1 N.M.LR. 299, P. 303; ABUDU LASISI & ANOR. V. OLADIPO TUBI & ANOR. (1974) 1 ALL N.LR. (PT. 2) 438, AT P. 442;
36
AGHENHEN V. WAGHOREGHOR (1974) 1 ALL N.LR. (PT. 1) 81. It cannot therefore be said that when the Respondent took conveyance of the land in dispute in 1959, the quantum of the estate he bought included the possessory right of Salako as a customary tenant, or his successor-in-interest. This would be against the run of decided cases.”
All that my evaluation above pointed to is that Claimants who by their own showing made a customary grant to the progenitors of Bankole family of the land known as Ajelanwa Olowo Igbo Village cannot rightly claim for declaration of title in respect of a parcel of land whose possession and ownership are vested in Bankole family.
In RAPHEL UDEZE VS. PAUL CHIDEBE (1990) 1 NWLR PART 125 PAGE 141 AT 160-161 it was held among others as follows:-
?It is left for me to mention that the Courts below also found that although the Appellants pleaded that the Respondents were their customary tenants who occupy the land in dispute on payment of tribute, they failed to prove such tenancy. It is significant to note that a customary tenant in possession of his holding during good behavior and until it is forfeited for
37
misbehavior. Once it is the case that such a person is a customary tenant and therefore in possession, then like any other person in possession of land, there is a presumption of ownership in his favour. Although the presumption is rebuttable by due proof of a tenancy, the onus is on the adversary to rebut it if he can. Where, as in this case, the customary tenancy is not proved, such a pleading may turn out to be a dangerous admission of possession in the opposite party upon which the trial Court may base a presumption of ownership, unless, of course, it is rebutted.?
Therefore the learned trial Judge erred in law when he granted declaration of title to the land in respect of the land in Ajelanwa Olowo Igbo Village which the Claimants admitted had been granted to progenitor of Bankole family.
I agree with the submission of the learned Senior Counsel for the Appellants that if any person is to rightly file an action to defend any action in Ajelanwa Olowo Igbo village, it is the Bankole family and not the Claimants.
?In view of the foregoing, I am of the view that the identity of the land in dispute is in issue and without a clear
38
description of the extent of the 1st to 4th Respondent?s land, the Court should not have made a declaration in favour of the 1st to 4th Respondents. See ?EKPEMUPOLO VS. EDREMODA (2009) 8 NWLR PART 1142 PAGE 166 AT 194 ? 195.
The 1st to 4th Respondents have not proved the identity of the land in dispute in this case, the lower Court was therefore wrong to have granted title to them.
Therefore, these issues 2 and 3 are hereby resolved in favour of the Appellants and against the 1st to 4th Respondents.
ISSUE NO 4 and 5 (Taken together)
(4) Whether the Claimants discharged the burden of proof on them to show that Appellants were their customary tenants to warrant the order of forfeiture made when no incident of customary tenancy was pleaded and proved (Distilled from grounds 7, 8, and 9).
(5) Whether having regard to the case of the Claimants which is more in tandem with absolute grant, Claimants are still entitled to declaration for Statutory Right of Occupancy, order for forfeiture and injunction (Distilled from grounds 10 and 11)
?
The learned Senior Counsel for the Appellants submitted that cases are fought on
39
the basis of pleadings filed by the parties and evidence led. He relied on the case of ? LIPEDE VS. SONEKAN (SUPRA).
He referred to the Respondents Amended reply to the 1st to 9th Respondent?s Statement of Defence especially paragraphs (2) and (25) where Appellants were referred to as customary tenants. But that assertion was denied.
He submitted that the Claimants in their written statement on oath and under Cross Examination never stated anything more than that which is contained in their pleading that the Appellants were their customary tenants.
He went further in his submission that the only conclusion to be reached in this appeal is that the Respondents could not establish customary tenancy. He also argued that a Judgment must be confined to the pleadings of the parties and the evidence led at trial. He relied on the following cases of:- UDENGWU VS. UZUEGBU (2003) 3 NWLR PART 836 PAGE 136 AT 151-152.
– DENNIS IVIENAGBOR VS. BAZUAYE (1999) 9 NWLR PART 620 PAGE 552 AT 561.
-ADIGUN & OTHERS VS. A. G. OYO STATE & OTHERS NO. 2 (1987) 2 NWLR PART 56 PAGE 197.
?
He finally urged that the issues be resolved in
40
favour of the Appellants.
The learned Counsel for the 1st to 4th Respondents in his response referred to paragraphs 25-28 of their Amended Statement of Claim dated and filed on 15/6/2015 contained on pages 618-628 of volume 2 of the record of appeal. The contention of the Claimants who are the 1st to 4th Respondents is that the land granted to the Claimants family were granted to them as customary tenants.
He also stated that the children of Solabi who were granted land at Ajelanwa Olowo Igbo Village used it to farm and that the 1st to 6th Appellants who were the descendants of Solabi engaged the services of the 7th to 9th Appellants and acting in concert brought thugs to Ajelanwa Olowo Igbo Village and committed acts of destruction in breach of their customary tenancy.
It was also submitted on behalf of 1st to 4th Respondents that the Respondents pleaded in paragraphs 11 and 12 of their Amended Statement of Claim that Bankole was one of their customary tenants and after his death they allowed his descendants to remain on and use the land granted to him and that Ajelanwa Olowo Igbo Village was named after Bankole.
?
He went further that
41
naming the village after Bankole is inconsequential and it does not vitiate the fact that the land belong to the Respondents.
It was further argued that the Respondents had pleaded in paragraphs 13 and 14 of their 4th Amended Statement of Claim that Ajelanwa Olowo Igbo Village Forms part of the vast land settled upon by Oyeyemi. He concluded that the argument that Ajelanwa Olowo Igbo Village does not belong to the Respondents because the village was named after Bankole a tenant is misconceived.
It was contended on behalf of the 1st to 4th Respondents that non-payment of customary tributes is not fatal to the claim of the 1st to 4th Respondents and that the Appellants were their customary tenants. The following cases were relied upon:-
– ONIGBEPA VS. AYODELE (2009) ALL FWLR PART 474 PAGE 1558 AT 1576.
– AJAO VS. OBELE (2005) ALL FWLR PART 262 PAGE 544 AT 561.
– MAKINDE VS. AKINWALE (2000) FWLR PART 25 PAGE 1562 AT 1582.
The learned Counsel for the 1st to 4th Respondents finally urged that the issues be resolved in favour of the Respondents.
RESOLUTION
The crux of the issue under consideration is whether the
42
Claimants/Respondents on their pleadings and evidence proved customary tenancy between them and the Appellants.
It is settled law that parties as well as Courts are bound by the pleadings filed. See ? LIPEDE VS SONEKAN (SUPRA).
The 1st to 4th Respondents in paragraph 28 of the 4th Amended Statement of Claim, the Appellants were referred to as customary tenants.
The 1st to 9th Defendants in their pleadings denied the fact that they were customary tenants of the Respondents. Therefore issues were joined as to the question of customary tenancy.
The significant question here is ? Are the Appellants customary tenants? ? I do not think so because a party who alleges another to be customary tenants, must plead the incidence of customary tenancy.
See ? DIM VS. EWEMUO (2009) 10 NWLR PART 1149.
– KANO VS. MAIKAJI (2011) 17 NWLR PART 1275 AT PAGE 139 AT 183.
– BALE MAYA & ANOTHER VS. OYEKAN OLOTO (1975) 1 NMLR PAGE 310 AT 314.
?It is settled law that under native law and custom, to prove Ishakole, the Plaintiff must adduce clear evidence on thing or things paid, the payee or receiver, the time when it
43
is paid and other circumstances surrounding it. Bare assertion of payment or that a person is a customary tenant is insufficient.
See ? ARE VS. IPAYE (1990) 21 NSCC PART 1 PAGE 426.
Also in ? DASHI VS. SATLONG (2009) 5 NWLR PART 1134 PAGE 281 AT 295 ? It was held by TABAI JSC at 295-298 among others thus:-
?Unless it is otherwise excluded, the main feature of a customary tenancy is the payment of tributes by the customary tenant to the overlord…?
See also the case of:- MITINI NYAUWARO & OTHERS VS. BABIYA OGEGEDE (1971) NSCC PAGE 206 AT 211.
A careful perusal of the case of ?DASHI VS. SATLONG (SUPRA) would show that the Appellant, though proved that tributes were being paid to a middleman which the Supreme Court held that such a procedure was wrong, how much more of the Respondents in this appeal who did not plead or proved payment of tributes by the Appellants.<br< p=””
</br<
44
In my view, the Respondents have not been able to establish customary tenancy therefore no such relationship existed between the Respondents and the Appellants.
It is to be observed that on page 945 of the record of appeal the learned trial Judge who knew that there was no pleading or evidence to support instances of where payment of tribute could be dispensed with went ahead to raise it, this is wrong on his part he should not have raised the issue Suo Motu. This is in breach of the Appellants right to fair hearing which is constitutionally guaranteed.
See ? LEADERS & CO. LIMITED VS. BAMAIYI (2010) 18 NWLR PART 1225 PAGE 329 AT 338.
Furthermore, in view of the fact that the Respondents did not establish by pleadings and evidence that the Appellants are having a relationship of customary tenancy with the Respondents, it is therefore wrong for the lower Court to have made an order of forfeiture against the Appellants where there is no evidence of customary tenancy between two parties, the question of forfeiture cannot arise. See the following cases:-
-IROAGBARA VS. UFOMADU (2009) 11 NWLR PART 1153 PAGE 587 AT PAGE 601.<br< p=””
</br<
45
– ELF PET NIG. LTD. VS. ONYEKWELU (2002) 17 NWLR PART 799 PAGE 461 AT 486-487.
In view of the foregoing this issue No. 4 is hereby resolved in favour of the Appellants and against the 1st to 4th Respondents.
The resolution of issues 1 to 4 in favour of the Appellants and against the 1st to 4th Respondents has rendered the consideration of issue No. 5 which is an alternative to issues 1 to 4 unnecessary.
?
I am of the view that this appeal has merit and it is allowed.
The Judgment of the lower Court delivered in Suit NO:- HCA/21/12 – BETWEEN:- (1). OBA SAMUEL OLUFEMI OJUGBELE, (2). ALHAJI SURAJU OLUSESI, (3). BABATUNDE AKINDE, (4). CHIEF ABAYOMI OJUGBELE (for themselves and on behalf of members of Oyeyemi Asalu family of Iga Isalu, Ota) VS. (1). ALHAJI YEKINI SOLABI, (2). LAMINA SOLABI, (3). JIMOH JOLAOSO SOLABI, (4). FASASI SOLABI, (5). MOJIDI SOLABI, (6). IBRAHIM SOLABI, (7). ALHAJI MUTAIRU OWOEYE, (8). GANIYU OWOEYE, (9). TUNDE (A.K.A. ONE HOUR), (10). ISRAEL OLUBODE-OSO, (11). JIMOH OBA DOSUMU (10th and 11th Defendants were joined by the order of Court on 29th July 2013) delivered on the 29th day of February 2016 is hereby set
46
aside.
In its place, the suit of the 1st to 4th Claimants which led to this appeal is hereby dismissed.
There shall be cost of N250,000.00 (Two Hundred and Fifty Thousand Naira) against the 1st set of Respondents in favour of the Appellants.
Appeal Allowed.
NONYEREM OKORONKWO, J.C.A.: A declaration of title to land operates in rem and remains valid for all purposes. For this reason, strict rules have evolved over time to ensure certainty before it is granted and where there is a risk of a future encumbrance on the land not accounted for in the proceedings, the Court in the exercise of its discretion may refuse the grant because there is a risk that a branch or segment of entity claiming the land but which was not accounted for may spring up in the future to assert a legitimate claim to a declaration over the same land. In this sense, a declaration of title to land becomes an “accounting process” whereby all possible interest in the land must be properly accounted for. Any viable missing link might be an Achilles heel to the entire claim.
This principle was in Benjamin Iroagbara v. David Ufomadu
47
(2009) 5-6 sc (pt. 1) 83 expressed thus:
“Where title to land is said to have been derived by grant or inheritance, the pleadings must aver facts relating to the founding of the land in dispute, the person who founded the land and exercised original acts of possession and person on whom title in respect of the land devolved since the first founding”.
It follows that where there are children of a progenitor who supposedly inherited the land, a detailed account of their participation in the devolution process of the land must be given. If anyone or group is omitted, then the risk of a future encumbrance on the land is created. However, in Ereku v. Governor (1974) IQ SC 59 per Elias CJN, it was held that:
“The mere likelihood that the grant of a declaration might lead to a series of hostile actions cannot be sufficient reason for refusing it”.
It calls for a balancing act of Oyeyemi and the progeny.
It seems to me that the above represents the principle espoused in the judgment of my learned brother Jimi Olukayode Bada, JCA in the lead judgment wherein he found no justification for the risk I highlighted earlier. I
48
agree.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had a preview of the lead Judgment of my learned brother Jimi Olukayode Bada JCA. I agree with his reasoning and conclusions reached. As it represents my view in this appeal I adopt same as mine. The appeal is meritorious and I also allow the appeal.
?I abide by the consequential orders made therein including one on cost. Appeal allowed.
49
Appearances:
MR. L. O. FAGBEMI SAN with him, CHIEF H. O. AFOLABI SAN, S. O. AJAYI, O. AYANDIPO, A. S. AMIRI, S. T. ABDUL-AZEEZ and M. R. OLABISIFor Appellant(s)
MR. ABRAHAM ADEOYE with him MUSTAPHA ERINFOLAMI for the 1st to 4th Respondents.
MR. AKINYELE EKANADE for the 5th to 6th Respondents.For Respondent(s)
Appearances
MR. L. O. FAGBEMI SAN with him, CHIEF H. O. AFOLABI SAN, S. O. AJAYI, O. AYANDIPO, A. S. AMIRI, S. T. ABDUL-AZEEZ and M. R. OLABISIFor Appellant
AND
MR. ABRAHAM ADEOYE with him MUSTAPHA ERINFOLAMI for the 1st to 4th Respondents.
MR. AKINYELE EKANADE for the 5th to 6th Respondents.For Respondent
