ADEKUOROYE v. AKINBOHUN
(2022)LCN/16003(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Thursday, February 10, 2022
CA/AK/22/2018
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
ADETUJOYE ADEKUOROYE (For Himself And On Behalf Of All The Children Of Adebiyi Adekuoroye Ondo) APPELANT(S)
And
SEGUN AKINBOHUN (A.K.A. JIGAN) (For Himself And On Behalf Of The Children Of Joachin Akinbohun Of Ondo) RESPONDENT(S)
RATIO
THE ONUS OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND
That the law is trite that in a claim for declaration of title, the onus is on the Claimant to prove his case and in doing so, he must rely on the strength of his own case and not on the weakness of the defence.
In a case such as that put forth by the Claimant (Appellant in this case), where traditional history is relied on and where the Court is faced with conflicting traditional histories of root of title in a claim for declaration of title to land such as this, the trial Court must find which of the two histories is more probable by testing it against other evidence in the case.
The trial Court is however duty bound in law to decline the two stories as inconclusive where neither of the two stories is probable.
It is only then that the Court will proceed to decide the case on the basis of numerous and positive acts of possession and ownership on recent happenings within living memory. See SUNDAY NKANAWO NWAETUK . OKON NWAETUK & ANOR. (2016) ALL FWLR (PT. 834) 68 AT 90. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Ondo State High Court, Ondo Judicial Division delivered on the 23rd of October 2017 in Suit No. HOD/108/2016.
SYNOPSIS OF FACTS
The Appellant had, as Claimant in the lower Court vide Writ of Summons and Statement of Claim filed on the 27th of October 2016, claimed against the Respondent (Defendant at the lower Court) viz:
i. A declaration that the Claimant is entitled to the Certificate of Customary Right of Occupancy over the land in dispute, situate, lying and being at Oke-Opa in Ondo East Local Government, Ondo State with the following boundaries:
a. On the first side bounded by Teremoniwon farmland.
b. On the second side, bounded by Aigo.
c. On the third side, bounded by Ihori.
d. On the fourth side, bounded by Awaye
ii. An Order of perpetual injunction restraining the Defendant, his unknown agents, servants, privies and any other person, claiming through him, from further trespassing to any portion of the land in dispute.
iii. An Order, giving possession of the land in dispute, back to the Claimant.
iv. General damages of N5 Million against the Defendant for his numerous acts of trespass on the land in dispute – pages 1 – 6 of the Record of Appeal.
The parties filed and exchanged their respective pleadings and led evidence.
The Appellant’s case was that his progenitors had fled Ondo during the Ondo crisis to suburb villages where they settled and utilized land for farming purposes.
The Respondent on his part, led evidence as to how his progenitor – Salujagbo, who was a warrior assisted the Ondo Community in ending a war. In return, he was granted the land in dispute in 1569 by Obaluju – the Osemawe of Ondo.
He further led evidence that when another war broke out in which Ogun Owuro invaded the then Osemawe – Tetemolejoye and his Chiefs fled to Salujagbo at Oke-Opa for cover. He testified further as to how Oke-Opa was initially an integral part of the Respondent’s family land before same was then granted back by Salujagbo to the fleeing Oba to use during the war.
That when sometime in 1973, the Appellant’s father first trespassed on the Respondent’s land, the Respondent’s father instituted Suit No. HOD/6/73 against the Appellant’s father – High Chief Adaja Adekuoroye which Suit went up to the Court of Appeal and was returned for retrial as evidenced in Exhibit D9 – Certified True Copy of final judgment in HOD/6/73 dated 15/07/1992.
After the trial, the learned trial Judge dismissed the claim of the Claimant as it lacked merit.
The Claimant (Appellant in this Appeal) is dissatisfied with the judgment of the lower Court and has appealed same.
Pursuant to the Practice Direction of this Honourable Court, the Appellant filed his Notice of Appeal on the 1st of November 2017 – (Pages 182 – 186 of the Record of Appeal) encapsulating six grounds of Appeal.
The Appellant filed his Brief of Argument on the 27th of March 2019, but same was deemed filed on the 7th of October 2020.
It is settled by Abiodun A. Olubusade Esq.
The Respondent’s brief was filed on the 27th of October 2020. It is settled by Oluwafemi A. Akinbinu Esq.
Appellant filed a reply brief on the 2nd of December 2020.
The parties adopted their respective briefs of argument on the 23rd of November 2021.
The Appellant proffered a sole issue for determination from the Grounds of Appeal which is:
“WAS THE TRIAL COURT NOT IN EVERY RESPECT IN ERROR WHEN IT HELD THAT THE APPELLANT FAILED TO PROVE HIS TITLE TO THE LAND IN DISPUTE CONSIDERING THE NATURE, FACTS AND CIRCUMSTANCES OF THE CASE?”
From records, and a perusal of the pleadings of the parties in the lower Court, the following facts are apparent;
That eleven Exhibits were tendered by the parties.
Exhibits P1 and P2 tendered by the Appellant are Enrolled Order of Court in respect of Suit No. HOD/6/73 dated 12/9/1978 and 24/9/1980 respectively.
Exhibits D1 – D6 are lease agreements between the Respondent and a tenant in respect of palm trees on the farmland at Iwori-Odo.
Exhibit D7 is an agreement between the Respondent and the State Primary Education Board regarding donation of land by the Respondent to the Institution.
Claimant is a son of Late Adebiyi Adekuoroye of Oke-Opa Ondo East Local Government Area of Ondo State.
His history is that at a time there was an internal crisis in Ondo which was occasioned by the death of Oba Arilekolasi (a.k.a. Oba Pupa). Many Ondo indigenes fled to various suburb villages and locations, while some discovered many new habitats which included Oke-Opa.
That his grandfather (name withheld) went to Oke-Opa and settled there (no date).
Respondent’s story is that the large expanse of land situate at Iwori-Odo is originally owned by Obalaju, the 3rd Osemawe of Ondo Kingdom who ruled for 29 years between 1561 – 1590.
That sometime in 1567, when the above mentioned Osemawe of Ondo Kingdom was six years on the throne, a war invaded Ondo kingdom which necessitated the said Osemawe to call for assistance and help of a renowned warrior called Salujagbo, who assisted Osemawe consequent upon which the war ended in favour of Ondo kingdom in 1569.
That sequel to this, the Oba Osemawe of Ondo kingdom granted a large expanse of land which is known and called Iwori to Salujagbo. The said parcel of land which is now in dispute is bounded as follows:
First side by Obalojuigbolowo land, second side by Aigo land; third side by Oke-Opa land and fourth side by Ojedo land.
That the above mentioned land comprises numerous camps which were founded by the descendants of Salujagbo from time immemorial which include but not limited to the following camps – Iwori Odo camp, Aweye 1 camp, Aweye 2 camp, Iwori Oke camp.
That his great grandfather Salujagbo was the first person to settle on the land in dispute with his children and sibling. Thereafter an internal war called Ogun-Oworo invaded Ondo kingdom which made the then Osemawe i.e. Oba Tetemolejoye and his Chiefs to flee to Oke-Opa for cover.
That his great grandfather Salujagbo built a home on a part of the land in dispute and farmed on the other part for many years before his demise, without let or hindrance.
That the law is trite that in a claim for declaration of title, the onus is on the Claimant to prove his case and in doing so, he must rely on the strength of his own case and not on the weakness of the defence.
In a case such as that put forth by the Claimant (Appellant in this case), where traditional history is relied on and where the Court is faced with conflicting traditional histories of root of title in a claim for declaration of title to land such as this, the trial Court must find which of the two histories is more probable by testing it against other evidence in the case.
The trial Court is however duty bound in law to decline the two stories as inconclusive where neither of the two stories is probable.
It is only then that the Court will proceed to decide the case on the basis of numerous and positive acts of possession and ownership on recent happenings within living memory. See SUNDAY NKANAWO NWAETUK . OKON NWAETUK & ANOR. (2016) ALL FWLR (PT. 834) 68 AT 90.
In IDUNDUN V. OKUMAGBA (1976) 9-10 SC, the Supreme Court stated that title to land can be proved by either traditional evidence, possession of adjacent land, production of title documents, acts of possession, long possession extending over a period of time.
In Paragraph 35 of the Respondent’s Statement of Defence, he avers thus:
“The Defendant avers that Iwori land shares boundaries with Oke-Opa, Igbolowo, Ojado and Aigo lands, the said communities have been since then living together as neighbors and boundary men.” – Page 23 of the Record of Appeal.
The Appellant talks about Oke-Opa. Nothing about how it came about and who founded it. He talked about his grandfather who went to Oke-Opa and settled there. The name of the said grandfather was not disclosed.
I dare say that the Appellant’s story is shrouded in secrecy.
The Respondent did say that he shares boundary with Oke-Opa, this connotes that Oke-Opa is not his land. It is my view that neither of the parties have sufficiently established title in respect of the land the subject matter of this Suit as stated in the Writ of Summons which is Oke-Opa.
The Respondent is not in possession of Oke-Opa. He however is occupying Iwori land.
The identity of the land is very paramount in a claim for declaration of title to land.
The picture before this Court depicts a situation where the Court has to pick and choose the land in dispute. But it cannot do that. It is the duty of a Claimant seeking declaratory action to prove its case on the strength of the facts and not on the weakness of the Respondent’s case.
Section 143 of the Evidence Act 2011, stipulates that when a question is whether a person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
No Survey Plans were tendered in evidence by either of the parties. One is faced with a situation where the identity of the land is not certain.
The Court erred to have given the land to either of the parties because the identity of the land was in question. Identity of the land comes first, before the issues of possession and trespass. DW5, Francis Fadayomi testified on the 10th of July 2017. He said inter alia that the land in dispute is not at Oke-Opa. That Oke-Opa is not close to it. It is at Iwori-Odo – Page 146 of the Record of Appeal.
In the face of this, it is clear that the identity of the land, the subject matter of this dispute is not certain, and the lower Court was in the circumstances obligated to deny the Appellant of his claim which he rightly did.
When in the judgment of the Court it declared that:
“… the presumption of ownership arising from possession of the land in dispute by the defendant has not been evidentially dislodged or rebutted.”
He was right.
Accordingly, the appeal has no merit and same hereby fails.
The judgment of the High Court of Justice, Ondo State of Nigeria, Ondo Judicial Division delivered on the 23rd of October 2017 dismissing Suit No. HOD/108/2016 is hereby affirmed.
No order as to costs.
HAMMA AKAWU BARKA, J.C.A.: I agree.
YUSUF ALHAJI BASHIR, J.C.A.: I have had the opportunity of reading in draft the lead judgment delivered by my noble Lord, RITA N. PEMU, JCA.
I agree with my Lord’s conclusion that this appeal lack merit and must fail.
I abide by all the orders made in the lead judgment.
Appearances:
Abiodun A. Olubusade Esq. For Appellant(s)
Oluwafemi A. Akinbinu Esq. For Respondent(s)
