CHIEF KOLAWOLE FILANI v. MR. AKINYEMI ONIPEDE & ORS (2019)

CHIEF KOLAWOLE FILANI v. MR. AKINYEMI ONIPEDE & ORS

(2019)LCN/13803(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of October, 2019

CA/EK/73/2018

RATIO

DECLARATION OF TITLE LAND THROUGH TRADITIONAL MEANS

A person who seeks a declaration of title to land by traditional history must prove his root of title to the land. Where he traces his title to a particular person, he must further prove how that person got his own title or came to have title vested in him, including, where necessary, the family that originally owned the land. The burden of proof on the Plaintiff is not discharged even where the scales are evenly weighed between the parties. ARCHIBONG VS EDAK (2006) 7 NWLR PT 980 Pg. 485, DIKE Vs OKOLOEDO (1999) 10 NWLR Pt 623 Pg. 359. OTANMA Vs YOUDUBAGHA (2006) 2 NWLR Pt 964 Pg. 337.

ADMISSION AGAINST INTEREST BY A PARTY

This piece of evidence is an admission against interest by the PW2 against the case of the Claimant/Appellant. See DOHERTY VS SUNMONU (2018) LPELR 46725, KAMALU VS UMUNNA (1997) LPELR 1657 where Belgore JSC held; Where there are admissions by a party against his interest, such admissions will be admissible against the person, AJIDE VS KELANI (1985) 3 NWLR Pt. 12 Pg. 248. This is not to say, however, that admission Parsee is conclusive proof of the entire matter in litigation but it stands firmly on the subject of the admission against the person making it. Also it must be viewed in relation to the entire evidence before the Court to know the weight to attach to it. OJIEGBE VS OKWARANYIA (1962) 2 SCNLR Pg. 358, NWANKWO VS NWANKWO (1995) 5 NWLR Pt. 394 Pg. 153, SEISMOGRAPH SERVICES (NIG) LTD VS EYUAFE (1976) 9-10 SC Pg. 135, AKANINWO VS NSIRIM (2008) LPELR 321.

PROOF OF TITLE TO LAND; TRADITIONAL EVIDENCE

It is trite that a party relying on evidence of traditional history must plead his root of title not only that, he must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. Also where a person traces the root of his title to a person or family he must establish how that person or family also came to have title vested in him or it. IBIKUNLE VS LAWANI (2007) 3 NWLR Pt. 1022 Pg. 580, OKOKO VS DAKOLO (2006) 14 NWLR Pt. 1000 Pg. 401. The Appellant in this appeal was only cataloging his ancestor, Eluyo?s Missionary Journey. He never gave evidence about how the land he is claiming was acquired. This is in fact a major issue in traditional history when you choose it as a way of proving title to the land. In pleading traditional history in a claim for declaration of title, the plaintiff is expected to narrate the genealogical tree from the original owner, the ancestor, in generations appurtenant to him down the line to the claimant/Appellant. In other words, he must prove who founded the land, in what manner the land was founded and the circumstances leading to it, and the successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained.ODI VS IYALA (2004) 8 NWLR PT 875 PG.283 EWO VS ANI (SUPRA). Where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn around to rely on acts of ownership and possession to prove his title to the land. In such a case, the Court is obliged to dismiss the claimants claim. OYADARE Vs KEJI (2005) 7 NWLR Pt 925 Pg. 571.

PROOF OF TITLE TO LAND

In law, it is not sufficient for a party who relies on traditional history for proof of title to land to merely plead that he, and before him his predecessors-in-title had owned and possessed the land from time beyond human memory. He must indeed, plead and prove the following;

(a) Who founded the land?

(b) How the land was founded?

EZEOKONKWO Vs OKEKE (2002) 11 NWLR Pt 777 Pg. 1

The appellant succeeded in stating the genealogy of his ancestors, however he could not prove by credible evidence, how the land he is claiming was founded by his ancestor, Eluyo. The appellant?s history just stated how his ancestor arrived and his journey from one place to the other till where he claimed he finally settled. There was no mention of how the land in issue was acquired and other particulars.

BURDEN AND STANDARD OF PROOF OF CIVIL MATTERS

In civil matter like this, the onus of proving an allegation is on the plaintiff and the onus never shifts until he has proved his claim on the preponderance of evidence and the balance of probabilities.ELIAS Vs OMO-BARE (1982) 5 SC PG. 25; AGBI Vs OGBEH (2006) 11 NWLR Pt. 990 Pg. 65. A party in civil matters is only entitled to judgment if a trial Court believes and accepts his evidence and if such evidence supports his case. The mere fact that the Court rejected the evidence of a defendant does not entitle the plaintiff to judgmentBELLO VS ARUWA (1999) 8 NWLR Pt. 615 Pg. 454.

JUSTICES

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

CHIEF KOLAWOLE FILANI

(The Rawa of Ikole Ekiti)

(For and on behalf of Filani Family, Omodowa Quarters, Ikole Ekiti) – Appellant(s)

AND

1. MR. AKINYEMI ONIPEDE

2. OPE AWE

3. CHIEF SOBA JEGEDE OSO

(For and on behalf of Ilotin Quarters, Ikole-Ekiti)

4. MRS. BINTU AKINYEMI

5. MRS JOKE OMOTOYINBO

6. ELDER OJO

7. WOLI OLAITAN ADENIYI

8. MR. OLA AROKODARE

9. PRINCE OLUWOLE FAGBE WESA

10. PASTOR BEN AGIDIGBI – Respondent(s)

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ekiti State delivered on the 30th day of April, 2018 by Honourable Justice L. O. Ogundana.

The facts briefly stated are as follows:-

By a Writ of Summons and Statement of Claim filed on 12th day of May, 2014, the Appellant as claimant claimed against the Respondent as defendant. The claimant/Appellant claimed as follows-

(a) A declaration that the land situate, lying and being at Esisa (Omodowa tuntun) Ikole-Ekiti belongs exclusively to Filani family of Omodowa quarters Ikole-Ekiti.

(b) A sum of N10 Million general damages for acts of trespass committed and still being committed by the defendants, their agents, servants or privies on the claimant?s family land situate, lying and being at Esisa (Omodowa tuntun) Ikole-Ekiti.

(c) An order of perpetual injunction restraining the defendants their servants agents or privies from committing further acts of trespass on the claimant?s family land situate, laying and being at Esisa (Omodowa tuntun) Ikole-Ekiti.

The Respondents as

defendants filed an Amended Statement of defence together with their Counter Claim on the 25th day of April, 2016. The Appellant thereafter, filed an Amended Reply brief. Pleadings were therefore joined. Trial commenced with the claimant/Appellant testifying as PW1 and called 4 other witnesses. The Respondents as defendants called 4 defence Witnesses. Addresses were filed and taken.

In its considered judgment the learned trial judge considered the competence of the Respondents? Amended Statement of Defence and Counter Claim. He held that the Amended Statement of Defence and the Counter Claim was not proper before the Court. Following the cases of SLB CONSORTIUM VS NNPC (2011) 9 NWLR Pt. 1252 Pg. 312 and OKAFOR VS NWEKE (2007) LPELR 2412, the learned trial Judge struck out the Statement of Defence and the Counter Claim.

In all, the learned trial Judge held that the claim of the claimant failed in its entirety and dismissed it for lacking in merit.

The Appellant was dissatisfied with the decision of the High Court of Ikole-Ekiti Judicial Division hence this appeal. The Appellant filed a Notice with 4 Grounds of Appeal on the 31st day of

July, 2018.

In accordance with the Rules of this Court, the Appellant filed his Appellant?s brief on 3rd day of April, 2019, but deemed properly filed and served on 13th day of May, 2019. In response the respondents filed their respondents? brief on 7th day of June, 2019.

The Appellant in his brief, articulated a sole issue to be determined by this Court as recapped hereunder.

Whether having regard to the totality of the evidence proffered at the lower Court, the learned trial judge rightly concluded that the claimant failed to conclusively prove his entitlement to a declaration of title to the land in dispute leading to a dismissal of the action.

The Respondents also articulated a sole issue for determination by the Court;

Whether the trial judge was right in dismissing the claim of the claimant/appellant having regard to the totality of the evidence adduced at the lower Court.

The sole issue articulated by both parties are the same in content, however, I will use the one articulated by the Appellant, the owner of this appeal.

The Appellant?s counsel submitted that a claimant seeking for a declaration of

title over a land has a total of 5 ways to choose from to prove his case to entitle him to a declaration. They are as follows-

(i) Proof by traditional evidence

(ii) Proof by production of documents of title duly authenticated unless they are documents of twenty or more years old produced from proper custody.

(iii) Proof by act of ownership in and over the land in dispute such as leasing, selling, making grant of farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such proprietary acts are the true owners of the land.

(iv) Proof by acts of long ownership and enjoyment of the land which prima facie may be evidence of ownership not only by the particular piece of land with inference to such acts as done, but also of other land so situate and connected therewith by locality of similarity that presumption under S.46 of 146 of the Evidence Act applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land.

(v) Proof by possession of the connected or adjacent land in

circumstances rendering it probable that the owner of such connected or adjacent land in circumstances rendering it probable that the owners of such connected or adjacent land would in addition be the owner of the land in dispute.

See IDUNDUN VS OKUMAGBA (1976) 1 NWLR Pt. 200 Pg. 200, ADDAH VS UBANDAWAKI (2015) 13 EJSC Pg. 125 AIYEOLA VS PEDRO (2015) 4 EJSC. Pg.97.

The Learned counsel in his submission stated that the learned trial judge failed to properly and dispassionately evaluate the traditional evidence of the Plaintiff/Appellant holding that there was a lot of contradictions in the evidence of the Prosecution witnesses. He also argued that this evaluation by the trial judge had occasioned a miscarriage of justice.

Counsel conceded that the Appellate Court seldom interfered with the evaluation and findings of a trial Court except same is perverse and not based on a proper appraisal and evaluation of evidence given in support of each party?s case. See FATOYINBO VS WILLIAMS (1956) SCNLR Pg. 274. FASHANU VS ADEKOYA (1974)SC Pg.83. IN LAYINKA VS MAKINDE (2002) LPELR 1970. UWAIFO JSC held on when an appellate Court will interfere with

the evaluation of evidence by a trial Court thus.

?When an appellate Court is satisfied that the trial Court had failed to draw the correct inference from proved or accepted facts or has wrongly assessed the probative values of undisputed evidence, it will interfere with the findings, and where appropriate make its own findings and set aside the improper or wrong decision.”

Counsel also submitted that a party who claims ownership of a piece of land or a declaration can only succeed if he establishes his claim for a declaration of title by compelling and cogent evidenceRABIU VS ADEBAYO (2012) 15 NWLR Pg. 125.

Counsel urged the Court to discountenance the Appellant?s reply to the Statement of Defence and Courter Claim already struck out as one can?t place something on nothing and expect it to stand: APP VS OBIANO (2018) LPELR 44646, AJI VS CHAD BASIN AUTHORITY (2015) LPELR 24562.

Counsel opined that the Statement of Defence together with the Counter Claim and the reply had been jettisoned therefore the claimant?s Statement of Claim was the only pleading left in the suit below.

Counsel urged the Court only

to utilize the Statement of Claim of the Appellant in determining this appeal. Counsel therefore, recited his ancestral lineage as can be seen in pg. 11-13 Record of Appeal recapped here under;

(a) The first traditional ruler in Ikole-Ekiti called Oba Akinsale, was the first to settled in Ikole having arrived from Ile-Ife with Eluyo, the Claimant?s ancestor.

(b) They first arrived Itajuju which belongs to Chief Asolo and from there they proceeded to a place called Igboyeye.

(c) Akinsale left Igboyeye to Idemo quarters and thereafter request Eluyo to settle near to him so that both of them can administer the town, hence Eluyo the ancestor of the Claimant relocated to Omodowa tuntun, the land in dispute.

(d) He went further to say that it was his ancestor Eluyo, who first settled on the land in dispute Omodowa tuntun. See Paragraph 20 of the Witness Statement on Oath of the Appellant at page 19 of the record.

(e) Eluyo begat Fagoroyo who earned the nick name of Filani.

(f) Fagoroyo A.K.A. Filani begat Owolabi (m), Oso(m) Ogunmoroti(m) Fakuade(m) among other.

(g) Owolabi the eldest son of Fagoroyo begat Dada who was also

Chief Rawa of Ikole-Ekiti, the title held by the Claimant.

(h) Dada begat the claimant and that his family since then have been in exclusive possession of the land, and exercising acts of ownership thereon by alienating same to different people.

Counsel submitted that PW2 gave evidence that Oba Akinsale who was the first settler granted the land in issue to ELUYO and the devolution of the land to the claimant. This evidence ought to have been taken as the traditional history of the Appellant. See INLAND BANK NIG PLC VS FISHING & SHIPPING CO LTD, where this Court held that-

?It is the law that when the evidence of a witness has not been challenged, contradicted or shaken under cross-examination, and his evidence is not inadmissible in law and is in line with pleaded facts, the evidence must be deemed as the correct version of what the witness says.?

Counsel also argued that the PW4 whose statement on oath was already out should not have been taken cognizance of or referred to by the trial judge. The Appellant?s counsel in furtherance of their case argued that PW3 and PW5 established that the claimant?s family has

been exercising various acts of ownership on the land by alienating same without protest from any quarter.

Counsel argued that the trial judge summarized the evidence of the claimant but wrongly applied the law to it thereby occasioning a miscarriage of justice. Counsel argued that the so called material contradiction by the Prosecution witnesses were minor discrepancies in their evidence DAUDA VS ACCESS BANK (2016) LPELR 41343 where this Court held-

?Evidence is said to contradict one another when it asserts and affirms and not where there are some minor discrepancies or omissions in details. It is quite usual and natural and in fact a clear evidence of honest testimony when two people or witnesses narrating an event especially an event of the past, do not relay the event with the same exact accuracy. Event recorded in human memory is spoken with some degree of inconsistencies depending on how individuals preview and analyze what they see, hear; their accuracy in narration coupled with retentiveness of memory.?

Counsel argued further that the issue of who out of the claimant?s family and Pw2?s Ijomu family arrived Ikole

first is not germane but inconsequential to the issue of who founded the land, and how the claimants? family came to settle in the land in dispute.

Counsel also stated that where a party relies on traditional history as his root of title the onus is on him to plead or prove his root of title to establish:-

(a) Who founded the land and exercised acts of possession.

(b) How the land was founded

(c) The persons on whom the title to the land devolved from its founder to the plaintiff. See AWODI V AGBAJE (2015) 12 EJSC 116 @ 142 D-G, OBIOHA V DURU (1994) 10 SCNJ 48, OHIAERI V AKABELE (1992) LPELR-2360 (SC), NRUAMAH V EBUZOEME (2006) 2 NRN 133 @ 158, MOGAJI V CADBURY NIG LTD (1985) 2 NWLR PT. 7 393.?

Learned counsel argued that the evidence of Pw4 ought to have been jettisoned with the reply that had been taken as struck out. Therefore, the learned trial judge was wrong to hold that the evidence of PW4 contradicted that of PW5.

Counsel submitted that there was no Statement of Defence therefore, the trial Court is left with only the pleadings of the Appellant and the Viva Voce evidence of prosecution witnesses.

Counsel stated that since there was no defence from the Respondents, the trial Court ought to have needed just minimal proof to grant the declaration the Appellant claimed.

Counsel re-iterated that the standard of proof in civil cases is only based on preponderance of evidence and balance of probabilities. NWADIKE VS IBEKWE (1987) LPELR 20817 ADEREMI VS ADEDIRE (1966) NMLR 400 ? 407.

Finally, counsel submitted that the Appellant established his traditional history by pleadings and evidence that the Court ought to declare him the owner of the land in dispute, set aside the judgment of the lower Court and allow this appeal.

In response, the learned counsel to the respondents recapped the 5 different ways a party can prove his title to land. See ISEOGBEKUN VS ADELAKUN (2013) WRN 1 ? 179.

A party who is relying on traditional history in proof of his case

?Must establish how his ancestor, the original owner acquired the land i.e. whether by settlement, conquest or grant. Authorities abound that a claim predicated on traditional history or evidence must be proved by any of these methods and traditional evidence adduced must be

cogent, uncontradicted evidence must also be conclusive, if the party is to succeed. Per Mukhtar, JSC (P.25) lines 10-20.

ISEOGBEKUN VS ADELAKUN (SUPRA). The claimants/Appellant relied on settlement to prove how his ancestor (ELUYO) acquired the said land.

The Appellant claimed direct settlement which is contrary to the argument the Appellant?s counsel proffered at page 7 of his Appellant?s brief. OBITUDE VS ONYESOM COMM. BANK LTD (2014) LPELR 22693 which held that-

?A party must be consistent in presenting his case at the trial Court and as well as on appeal.?

Counsel to the Respondents submitted that in one breath, the Appellant claimed that they were the first settlers. In another breath they argued that the land was a grant. Both PW1 and PW2 made contradictory statements opposed to their pleadings on paragraph 10 and 12 of the PW1 Statement on oath at page 11 of Record of Appeal. It is equally at variance with the statement on oath of PW2 Paragraph 2 and 5 of page 14 of Record of Appeal.

Counsel referred the Court to the evidence of PW1 the claimant. In paragraph 12 of same page, he stated that Oba

Akinsale i.e the Elekole and Eluyo left Itajuju for Igboyeye. Whilst Sayiyan settled at Igboyeye, Eluyo settled beside Sayiyan at Esisa. The Elekole relocated from Igboyeye to Idemo Quarters and requested Eluyo to move close to him so that both of them could administer the town together. Consequently, Eluyo relocated to Omodowa tuntun i.e. the land in dispute.

See AKANMU V ADIGUN (1993) 7 NWLR Pt. 304 218 where the Court held-

?The effect of contradictions especially, ones which are hostilely in conflict, in a Plaintiff?s case as he presents it and his case as he pleads it, is to destroy the Plaintiff?s case as presented. Conversely, they leave the case of the defendant as presented solid and monolithic.?

In furtherance of the Respondents? argument, he stated that the Appellant?s ancestor arrived last among the 4 families that arrived Ikole. Also that Eluyo the claimant?s ancestor never accompanied the first Elekole Akinsale to Ikole Ekiti and neither did the Appellant?s ancestor settle on the land in dispute.

The learned counsel stated that the Appellant?s counsel were using grant and

settlement inter changeably. Also there was no witness to testify that the first Elekole ? Akinsele did in fact grant Eluyo the Appellants ancestor the land in dispute. See ECHENIM OFUME Vs NGBEKE (1994) 4 NWLR Pt 341 Pg 743 where the Court held that-

?Where a Plaintiff in an action for declaration of title is basing his title to the land in dispute on a grant, the grantor or his successor in title must be called to prove his root of title.?

Counsel submitted that Itajuju, Igboyeye, Omodowa, Esisa and Omodowa tuntun are places in Ikole Ekiti. The claimant testified that only the Asolo family was at Ikole Ekiti at the arrival of Elekole ? Akinsale. PW2 testified that his family and Elekole Akinsale family arrived Ikole Ekiti at the same time. Therefore, the testimony of PW2 was contradictory to that of the Appellant.

To further compound the calamity of the Appellant, as to how his ancestor founded the land, PW2, further testified that, ?Oba Akinsale and Ijomu family arrived Ikole at the same time. On arriving at Ikole, my family, Ijomu family, settled at Ijomu and that is where we are till date. Oba Akinsale also

settled at Ijomu. See page 332 of the Record of Appeal.

All the evidence of the PW2 are against the Appellant contrary to the argument of the learned counsel to the Appellant that his evidence are nothing more than inconsistencies which he submitted may have been attributable to old age. This argument is untenable in law.

In MOTUNWASE VS SORUNGBE (1988) 5 NWLR Pt 92 Pg. 90 the Supreme Court held-

?a statement oral or written made by a party to civil proceedings and which statement is adverse to his case is admissible in the proceedings as evidence against him of the truth of the fact assembled in statement. See AGI Vs ACCESS BANK (SUPRA).”

Counsel submitted that traditional history has to be taken and accepted holistically. The Court is not at liberty to believe some points and disbelieve some points. See AGBAOSI V IMEVBORE (2014) 1 NWLR Pt. 1389 Pg. 556.

Counsel submitted that the Appellant could not prove their entitlement to the disputed land neither could they prove acts of possession. Also the Appellant had to prove his claims by the strength of his evidence and not on the weakness of the respondents case. The onus

is on the Appellant to prove his case on preponderance of evidence and the balance of probability.

Counsel thereafter, urged the Court not to succumb to the Appellant?s bid to cajole the Court to re-evaluate the evidence proffered in the lower Court. Counsel finally urged the Court to dismiss this appeal and affirm the judgment of the lower Court.

RESOLUTION

In this appeal, the learned trial judge in his judgment struck out the Statement of Defence and Counter Claim of the defendants/respondents together with the sworn statement of oath of his

witnesses. The Claimant?s/Appellant?s Reply to the Statement of Defence was also struck out with the Respondents processes. Therefore, at the trial Court, the learned trial Court had only the Claimant?s/Appellant?s pleadings to deal with in his considered judgment.

It therefore, become very clear that the claimant?s claim for declaration of title to land, has to be determined by the evidence proffered by him in proof of his claim. The claimant therefore, swims, or sinks with his case.

The appellant in his brief had recapped the five (5) ways of proving or establishing title or ownership to land. The Appellant thereafter, chose to establish and prove his case by traditional evidence. AYOOLA VS ODOFIN (1984) 11 SC Pg. 120, EWO VS ANI (2004) 17 NSCQR Pg. 36, NKADO VS OBIANO (1997) 5 NWLR Pt. 503 Pg. 31, NKWO VS IBOE (1998) 7 NWLR Pt. 558 Pg. 354 ADESANYA VS ADEROUNMU (2009) 6 SC Pt. II Pg. 18.

?A plaintiff who claims a declaration of title to land has the burden of setting out clearly by who and how the land was founded and the names of persons who has exercised acts of ownership on the land before it devolved upon

him. OLOKOTINTIN VS SARUMI (2002) 13 NWLR Pt. 784 Pg. 307.

The Appellant in proof of his claim stated and pleaded as follows-

9. The first traditional ruler in Ikole i.e Elekole of Ikole-Ekiti called Oba Akinsale founded, migrated from Ile Ife and was accompanied thereon.

10. Oba Akinsale migrated from Ile Ife and was accompanied by the great grandfather of the claimant called Eluyo. The both of them landed at Itajuju which belonged to Chief Asolo.

11. Itajuju belongs to Chief Asolo, Elese and Saiyan are Chiefs under Chief Asolo. Alese performed the traditional rites for Oba Akinsale. Traditionally after the performance of rites, Elese and Elekole don?t see themselves in their lifetimes.

12. Oba Akinsale i.e the Elekole and Eluyo left Itajuju for Igboyeye. Whilst Sajiyan settled at Igboyeye, Eluyo settled beside Sajiyan at Esisa. The Elekole relocated from Igboyeye to Idemo Quarters and requested Eluyo to move close to him so that both of them could administer the town together. Consequently, Eluyo relocated to Omodowa tuntun i.e the land in dispute.

13. Eluyo begat Fagororo(m).

14. Fagororo earned the nickname of

?FILANI? becasuse he was light in complexion and had a striking resemblance of a nomadic hersman from the Northern part of Nigeria. All the descendants of Eluyo resolved and adopted FILANI as their surname till today.

15. Fagororo begat Owolabi (m), Oso (m), Ogunmoroti (m), Fakuade (m) among others.

16. Owolabi was the eldest son of Fagororo and was the head of claimant?s family.

17. Owolabi begat Dada who also became the head of claimant?s family and was installed as RAWA of Ikole-Ekiti.

18. Dada begat the claimant.

19. On the demise of Dada, the Claimant became the head of the claimant?s family and was installed as the RAWA of Ikole-Ekiti.

Of great importance is paragraph 12 where the claimant stated that Oba Akinsale i.e. Elekole and Eluyo the claimant?s ancestor left Itajuju for Igboyeye. Whilst Sayiyan settled at Igboyeye Eluyo settled beside Sayiyan at Esisa. The Elekole relocated from Igboyeye, to Idemo Quarters and required Eluyo to move closer to him so that both of them could minister the town together. Consequently, Eluyo relocated to Omodowa tuntun the land in dispute.

What naturally pops up is how did he acquire the land he was settling in? Was it by conquest, grant or what? The Appellant failed to state whether Eluyo his ancestor met anyone on the land. Was the land a virgin land? Was Eluyo the first person on the land the subject matter of this dispute.

Appellant claimed that Eluyo his ancestor arrived Itajuju first with Elekole. Were they visitors at Itajuju or they settled there for some time? All these details were not provided by the Appellant. Eluyo then moved to Esisa whilst Elekole move from Igboyeye to Idemo Quarters. On reaching there, Elekole requested Eluyo to move closer to him. Eluyo now from the history as told by the claimant further relocated to the present disputed land, Omoduwa tuntun.

The Appellant could not state the basis of all these stops. Was he just an ordinary visitor or did he take all the stops by conquest or the owners granted him the land to stay or how did he just settle there?

These are the details the Appellant failed to provide for the Court below to ascertain the veracity of the traditional history.

The Claimant/Appellant?s (PW1) pleadings and his evidence Viva voce

are the same. However, PW2 during examination contradicted the evidence of PW1 who stated that his family and Elekole arrived Ikole at the same time. Infact he stated that the Appellant?s ancestor, Eluyo was the last to arrive Ikole.

?Where there are admissions by a party against his interest, such admissions will be admissible against the person, AJIDE VS KELANI (1985) 3 NWLR Pt. 12 Pg. 248. This is not to say, however, that admission Parsee is conclusive proof of the entire matter in litigation but it stands firmly on the subject of the admission against the person making it. Also it must be viewed in relation to the entire evidence before the Court to know the weight to attach to it. OJIEGBE VS OKWARANYIA (1962) 2 SCNLR Pg. 358, NWANKWO VS NWANKWO (1995) 5 NWLR Pt. 394 Pg. 153, SEISMOGRAPH SERVICES (NIG) LTD VS EYUAFE (1976) 9-10 SC Pg. 135, AKANINWO VS NSIRIM (2008) LPELR 321.

The Appellant in this appeal was only cataloging his ancestor, Eluyo?s Missionary Journey. He never gave evidence about how the land he is claiming was acquired. This is in fact a major issue in traditional history when you choose it as a way of proving title to the land.

In pleading traditional history in a claim for declaration of title, the plaintiff is expected to narrate the genealogical tree from the original owner, the ancestor, in generations appurtenant to him down the line to the claimant/Appellant. In other words, he must prove who founded the land, in what manner the land was founded and the circumstances leading to it, and the

successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained.ODI VS IYALA (2004) 8 NWLR PT 875 PG.283 EWO VS ANI (SUPRA).

Where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn around to rely on acts of ownership and possession to prove his title to the land. In such a case, the Court is obliged to dismiss the claimants claim. OYADARE Vs KEJI (2005) 7 NWLR Pt 925 Pg. 571.

(a) Who founded the land?

(b) How the land was founded?

EZEOKONKWO Vs OKEKE (2002) 11 NWLR Pt 777 Pg. 1

The appellant succeeded in stating the genealogy of his ancestors, however he could not prove by credible evidence, how the land he is claiming

was founded by his ancestor, Eluyo. The appellant?s history just stated how his ancestor arrived and his journey from one place to the other till where he claimed he finally settled. There was no mention of how the land in issue was acquired and other particulars.

A party in civil matters is only entitled to judgment if a trial Court believes and accepts his evidence and if such evidence supports his case. The mere fact that the Court rejected the evidence of a defendant does not entitle the plaintiff to judgmentBELLO VS ARUWA (1999) 8 NWLR Pt. 615 Pg. 454.

The appellants had argued that the Respondents Statement of Defence and Counter Claim was struck out and therefore needed minimal proof for the Court to grant him the declaration he sought. It is trite law that in order to succeed in a claim for declaration, the plaintiff must prove his case and rely on

the strength of his case COMMISSIONER OF LANDS MID ? WESTERN STATE VS CHIEF EDO ? OSAGIE (1973) LPELR 2933; AKINOLA VS OLUWO (1962) LPELR 25101 where the Supreme Court per Unsworth JSC held-

?The trial judge held that the plaintiff had failed to establish his case and said that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant?s case.”

In this appeal, it was made obvious that the appellant had to succeed on the strength of his case since the respondents? Statement of Defence and Courter Claim were struck out.

SORONNADI Vs DURUGO (2018) LPELR 46319, DUMEZ NIG LTD Vs NWAKHOBA (2008) 18 NWLR Pt 1119 Pg. 36 1; BELLO Vs EWEKA (1981) 1 SC REPRINTS Pg. 63, EMENIKE Vs P.D.P (2012), 12 NWLR Pt 1315 Pg.556, ILORI Vs ISHOLA (2018) LPELR 44063.

?A declaratory relief must be proved to the satisfaction of the Court notwithstanding defaults of defence or any admission in the defendants pleading PER KEKERE-EKUN JSC.”

The Appellant had argued that the learned trial judge did not evaluate the material evidence placed before the Court thereby occasioning

a miscarriage of justice.

It has well been accepted now that in the evaluation of evidence, the trial Courts are guarded by the following principles namely;

(a) Whether the evidence is admissible.

(b) Whether the evidence is relevant.

(d) Whether the evidence is conclusive and;

(e) Whether the evidence is more probable than that given by the other party. MOGAJI Vs ODOFIN (1978) 4 SUPREME COURT Pg. 91 BUHARI Vs INEC (2008) LPELR 814 where NIKI TOBI JSC held.

?Evaluation of evidence for your purpose is the appraisal of oral evidence and the ascription of probative value to the evidence resulting in the finding of facts.?

EZEANI Vs FRN (2019) LPELR 46800. InAYORINDE VS ? SOGUNRO (2012) LPELR 7808 RHODES-VIVOUR JSC held;

?Evaluation of evidence comes in two forms (a) Findings of facts based on the credibility of witnesses and (b) Findings based on evaluation of evidence.

(a) An appeal Court should be slow to differ from the trial judge. After all it was he that saw and heard the witnesses, he watched their demeanour and so his conclusions must be

accorded some respect. But in (b) An appeal Court is in as good a position as the trial Court to evaluate the evidence. In both (a) and (b) the conclusion of the trial judge should be accorded much weight except found to be perverse. Trial Court receive evidence. That is perception. It is then the duty of the Court to weigh the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation”

In the Court below, the trial judge took his time to analyze the evidence Viva Voce of PW1 and PW2 most especially. He appraised it in cognizance with the pleadings. He found the various inconsistences and contradictions in their Viva Voce evidence as it concerns the arrival of all the families. The learned trial judge also found as a matter of fact that the Appellant could not establish his claim for declaration of title.

?It must be concluded that evaluation of relevant and material evidence before the Court and the ascription of probative value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified. Where the trial Court

unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate Court to substitute its own views for the views of the trial Court.?

AGBI VS OGBEH (2006) 11 NWLR PT 990 PG. 65, BASHAYA VS STATE (1998) 5 NWLR PT.550 PG. 65, OJOKOLOBO VS ALAMU (1998) 9 NWLR Pt. 565 Pg. 226, SHA VS KWAN (2000) 5 SC Pg. 178, STATE VS AJIE (2004) 7 SC Pt. 1 Pg. 24.

Thus, it is said that evaluation of evidence is primarily the function of the trial Court. It is only where and when it fails to evaluate such evidence properly or at all that an appellate court will interfere and re-evaluate such evidence, otherwise the appellate court has no business interfering with the finding of the trial court on such evidence.

In this appeal, I believe the trial judge evaluated the material evidence placed before him in reaching his conclusion. I have no reason to re-evaluating the evidence proffered in the lower Court. I cannot find fault in what the trial Court did and I so hold.

The sole issue articulated by the Appellant has been resolved against him and in favour of the Respondents.

The Appellant did not

establish nor prove his claims that would entitle him to the declaration he sought.

This appeal is unmeritorious. It is dismissed. I affirm the judgment of the lower Court in dismissing the claim of the Appellant.

Cost to the Respondents is assessed at N100,000.00.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA.

I concur with the resolution of the issues and the conclusion that this appeal is unmeritorious and ought to be dismissed. I also dismiss same. I also abide with the consequential order as to costs.

Appeal dismissed.

Appearances:

Olalekan Olatawura Esq. with him, I. A. Omolade Esq., E.E. Nworie Esq.For Appellant(s)

Babatunde Jemilehin Esq.For Respondent(s)

Appearances

Olalekan Olatawura Esq. with him, I. A. Omolade Esq., E.E. Nworie Esq.For Appellant

AND

Babatunde Jemilehin Esq.For Respondent

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