ADEPETUN v. FASIMOYE & ANOR
(2022)LCN/16009(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, January 21, 2022
CA/AK/86/2014
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
MICHEAL ADEPETUN (For Himself And On Behalf Of Akinduro Family) APPELANT(S)
And
1. HENRY AKINSANMI FASIMOYE 2. MICHEAL OLU FASIMOYE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE POWER OF THE TRIAL COURT TO VISIT A LOCUS IN QUO
In resolving this issue whose concern purely is with the validity or otherwise of the visit to Locus conducted by the Trial Court during the hearing of the matter, it is necessary to understand that the Court is empowered to utilize its visual perception by way of visit to the disputed site especially in land disputes to clear certain doubt arising from conflicting evidence as to the existence or otherwise of some features on the land.
The power to visit the locus by the Trial Court is derived from Section 127(2)(a)(b) of the Evidence Act, 2011 which laid down two methods for the visit to locus in quo.
(a) The Court may adjourn to the Locus and continue sitting there in the normal way by hearing and taking evidence of witnesses there or
(b) The Court may just move to the Locus, make an inspection of the subject matter only and return to the Court afterwards for evidence, if any. See Aboyeji V. Momoh & Ors (1994) LPELR-46 SC and Chukwuogor V. Obuora (1987) 3 NWLR (Pt. 61) 454 at 473.
The Supreme Court in Ezeokeke and Ors V. Uga & Ors (1962) LPELR 25042 held:
“Whether a Trial Judge will visit the Locus in a civil proceeding is a matter within his own discretion. If, of course, he feels that such a visit will enable him to get a better grasp of the evidence that has been adduced before him he should visit the scene.”
And in the course of the visit the Trial Court is only bound to record the fact of the inspection he need and not give its details, yes it is a good practice to record the full details where possible but it is not mandatory. See Dza V. Konla (1956) WACA 145 and Kofi Badoo V. Ohene Ampunq (1949) WACA. Absence of the full records of the inspection of a Locus in Quo is not fatal to the validity of the judgment contrary to the submission of the Appellant Counsel, see Masi V. Shafi (1965) NMLR 33. PER BASHIR, J.C.A.
THE DUTY OF A PLAINTIFF IN A DISPUTE CONCERNING TITLE TO LAND
In all instances, one of the 1st duty of a plaintiff in a dispute concerning title to land is to establish with certainty and accuracy the identity of the land. This is a condition precedent sine qua non to the success of the claim, especially as in this case where ab initio the identity of the land is an issue. See Adeniran V. Ashabi (2004) 2 NWLR (Pt. 857) 375.
Similarly., the plaintiff has a duty to prove the precise area his claim relates. Where the plaintiff fails to do that by the evidence produced by him whether oral or documentary, the claim must be dismissed. See Otanma V. Youdubagha (2006) 2 NWLR (Pt. 964) 337. PER BASHIR, J.C.A.
THE BURDEN OF PROOF IN CIVIL CASES
It is a well-settled position of the law that where the findings of fact of a trial Court are correct, the burden is on the person challenging the findings on appeal to displace this presumption. See Bakare V State (1987) 1 NWLR (Pt 52) 579 and Moses V. State (2006) LPELR 1915 (SC).
In my view, the Lower Court was right when it held that it is the Trial Court’s duty to make findings of fact being the Court that saw and heard witnesses and it is not the practice of an appellate Court to disturb the trial Court finding of fact except where the findings are at variance with evidence. Ibeh V. State (1997) LPELR 1389 (SC). PER BASHIR, J.C.A.
YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Ondo State High Court sitting in its Appellate Capacity Coram D. I. Kolawole J. delivered on the 19th day of November, 2008 in respect of the decision of the Customary Court Ondo in Suit No: ODCC/270/1998 where the Appellant was the Plaintiff involving a declaration of title to a farmland situate, lying and being at Labedo Village via Ondo.
On the 2nd day of May, 2007 the Trial Customary Court Ondo in a considered judgment dismissed the Plaintiff/Appellant’s claim on the ground that the Plaintiff did not prove his case as required by law. The Trial Court awarded a cost of N2500 against the Plaintiff.
Not satisfied with the above decision the Appellant appealed to the High Court of Ondo State vide an Amended Notice of Appeal dated 26th June, 2008.
After listening to arguments from counsel to the respective parties, the High Court affirmed the decision of the Customary Court of trial and then proceeded to dismiss the Appellant’s appeal in its judgment delivered on the 19th day of November, 2008.
With the leave of this Court granted on the 6th day of March 2012 the Appellant has further appealed to this Court pursuant to an Amended Notice of Appeal filed on 11th May 2016 but deemed duly filed on the 21st day of March, 2018.
Containing four grounds of appeal without their particulars four (4) grounds are distilled as follow:
(1) The Court erred in law when it held out that “in this case PW1 said the defendant did not stop their act of trespass even the judgment from the Osemawei palace. This clearly shows that the defendant did not accept the decision contained in Exhibit D. This fact makes the customary arbitration useless and unforceable. Any use of Exhibit D to my mind is an exercise in futility”.
(2) The Appellant High Court erred in law when it held that “the report of the visit to the Locus-in-quo as contained on pages 82 and 83 of the record has not been disputed by the Appellant. I have no doubt in my mind that the visit to the Locus-in-quo is impeccable.”
(3) The Appellant High Court erred when it held “The Court listened to the witnesses and watched their demeanour and it is in a better position to decide witnesses that are credible and I cannot fault the decision of the Lower Court that the Plaintiff did not prove his case. The Lower Court was therefore right in its decision. The implication of this conclusion is that the appeal filed by the Plaintiff to this Court is devoid of merit and is bound to fail and it fails.
(4) The Appellant High Court erred in law when it held that the “Lower Court was therefore right in its decision.”
Based on the above grounds of appeal, the Appellant counsel Mr. Rotimi Olorunfemi Esq settled and filed his Appellant’s brief of argument on 11th day of May 2016 which was deemed duly filed and served on the 21st day of March, 2018 in which the Learned Counsel formulated three (3) issues for determination, namely:
ISSUES FOR DETERMINATION
(1) Whether Exhibit D is not binding on parties and the failure of the two Lower Courts to give effect to same was not fatal to their decision.
(2) Whether the failure of the Customary Court to adopt and follow the well settled and necessary procedure at Locus-in-quo proceedings and the reliance on the outcome of the said proceed (sic) did not by itself result to denial of substantial justice to the Appellant.
(3) Whether in the light of the oral and documentary evidence and the totality of the other material evidence before the two Lower Courts, the decision of the Customary Court which was affirmed by the Lower Court is not liable to be set aside on the ground of same being perverse.
Marrying the issues to the grounds of appeal the Appellant counsel says that issue one is formulated from ground one, issue two arose from ground two and issue three is distilled from grounds 3, 4 and 5 respectively.
Mr. A. O. Thomas Esq. settled the Respondents brief which was filed on the 3rd day of October, 2018 and deemed on 18th June 2019 as having been duly filed and served. Learned Counsel distilled 2 issues for determination which goes thus:
1. Whether the Lower Court in its appellate jurisdiction had a proper understanding of the issues in dispute between the parties at the trial Customary Court and did a proper appraisal of the evidence led and procedure adopted and therefore came to a right conclusion on the matter.
2. Whether the issue of boundary dispute now being canvassed by the Appellant as against issue of title contested at the trial, can now be done on appeal without leave of this Honourable Court.
These two issues though quite different from those formulated by the Appellant but looking through its substance, one will easily notice that it is in fact a pointed response to the issues and submissions of the Appellant Counsel in his Appellant’s Brief of Argument.
Meanwhile in addition to these 2 issues, the Learned Respondents Counsel also raised a Preliminary Objection on the ground that this appeal being from the decision of the High Court of Ondo State in its appellate jurisdiction and not as a Court of first instance, by Section 241(1)(a) of the 1999 Constitution whether this appeal is competent having been filed without leave sought and obtained by the Appellant as required by Section 242(1) of the 1999 Constitution.
PRELIMINARY OBJECTION
In arguing the Preliminary Objection, the Learned Respondents Counsel submits that this being an appeal from the decision of the Ondo State High Court sitting in its appellate capacity, not as a Court of first instance by Section 242 of the 1999 Constitution, an appeal against this decision can only be valid with the leave of the High Court or of this Court in situations not covered by Section 241(1) of the 1999 Constitution.
He submits further that the Appellant has failed to obtain the leave of the State High Court or this Court before filing this appeal, the appeal is therefore liable to be struck out. The Counsel cited and relied on the case of Inyang V. Ebong (2002) 2 NWLR (Pt. 751) 284 at 322.
In his reply on the Preliminary Objection issue, the Appellant’s Counsel in his appellant reply to respondents’ brief filed on 8/2/2019 submitted that the contention that no leave was sought and obtained by the Appellant before filing this appeal is baseless and should be disregarded. Counsel referred us to page 138 of the Record of Appeal where the leave obtained by the Appellant from this Court to file his Notice of Appeal was displayed.
I have examined page 138 of the Record of Appeal, it is clear and beyond any argument that the Appellant not only sought and obtained leave of this Court to file this appeal which was granted on 6th day of March 2012, but Mr. A. O. Thomas Esq. represented the Respondents in the proceedings. For him to come round and raise this objection at this stage to me borders on mischief and imprudence.
In any case I am convinced and fully satisfied that the Appellant has been granted leave by this Court to file this appeal as per the order of Court displayed at page 138 of the Record of Appeal.
In the circumstances therefore the Preliminary Objection lack merit, it is therefore hereby overruled.
ISSUE ONE
The Appellant Counsel argued that it was the Appellant who at page 63 of the Record of Appeal introduced Exhibit D which is the Customary Arbitration on the land in dispute when he said:
“My family then reported the matter to the then Osemawe…
The Osemawe sent some people to the land and they found out the land does not belong to the defendant. They were advised to vacate the place. The judgment by the Osemawe in council was reduced to writing.”
That the judgment of the Osemawe Counsel said is Exhibit D admitted without objection found at page 114 of the records. This document according to the Appellant’s Counsel has all the trappings of a valid Customary Arbitration and where parties voluntarily submit to the customary arbitration proceedings the decision arrived at is binding on the parties and even the Court.
Learned Counsel further submitted that for a Customary Arbitration to be valid and binding the parties must have voluntarily submitted to it, he must also have accepted the terms; and agree to be bound by the decision. See Nzeoma V. Ugocha (2001) 29 WRN 179 at 186.
Learned Counsel submits further that Exhibit D is a Customary Arbitration decision from the Court of the Traditional & Customary Leader of the Town where the land is situated, it is presumed regular and valid being a Certified True Copy according to the Learned Appellant’s Counsel. It is therefore enforceable and the two Lower Courts were wrong to have refused to give effect to the decision after all, the parties have voluntarily submitted to the arbitration. He cited Okoronkwo V. Ume (1996) 10 NWLR (Pt 477) 133.
Counsel finally urged us to resolve this issue in favour of the Appellant.
The Respondents’ Counsel in his submission in respect of the issue of Exhibit “D”, Customary Arbitration, Learned Counsel argued that the decision of the Customary Arbitration must be acceptable to the parties for it to be binding. Since it is in evidence that the Respondents continued in trespass even after the arbitration decision, it means the decision was not acceptable to him. See Eke & Ors V. Okwaranyia & Ors (2001) 4 SCNJ 300 and Ufomba & Anor V. Ahuchaogu & Ors (2003) 4 SCNJ 231-256.
Counsel submits that the view of his lordship of the Lower Court that the Customary Arbitration is useless and unenforceable is correct as the Respondents have refused to honour the decision on the ground that it was not acceptable to them.
In the resolution of this issue, all that I need to say is that in the course of trial of this matter, evidence was led showing that the dispute over this land raged on for a long time between the parties, to the extent that it was once reported to the palace of the (Osemawe) Oba of Ondo Town who intervened by way of a Customary Arbitration, by which the Osemawe issued an order against the Respondents that they should vacate the land for the Appellant which order the Respondents did not comply with, hence the dispute moved to the Court, first before the Customary Court Ondo and later the Ondo State High Court and now this Court.
COURT
Customary Arbitration is a well known and accepted phenomena in our society and communities. It is the practice whereby elders, chiefs and/or leaders of the community are called upon to intervene in the resolution of a dispute between members of the community by way of arbitration. The trust of the arbitration largely depends on the consent and willingness of the disputing parties to submit to the arbitration or be bound by its outcome because the Customary Arbitrator do not have the cohesive capability and/or power to enforce their verdict, see: Okereke & Anor V. Nwankwo & Anor.
In the Supreme Court case of Raphael Agu V. Christian Ikewibe (1991) 3 NWLR (Pt 180) 385 at 407 Karibi Whyte JSC defined the term:
“Customary Arbitration is an arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs, or elders of the community and the agreement to be bound by such decision or freedom to resile where unfavourable.”
It is therefore obvious that a customary award being a product of a consensual arbitration has no binding effect, either party can withdraw from it while being underway or can elect to opt out from its effect upon conclusion.
Further down in the judgment, his lordship Karibi Whyte went on to say:
“It is well accepted that one of the many African Customary modes of settling disputes is to refer the dispute to the family head, or an elder or elders of the community for a compromise solution based upon subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance and from which either party is free to resile at any stage of the proceedings up to that point.”
See also the case of Ohiaeri and Anor V. Akabeze & Ors (1992) LPELR 2360 (SC).
There is clear evidence in this case that the parties once attended a customary arbitration before the Osemawe and an award was made directing the Respondent to vacate the land. There is equally evidence on record showing that the Respondent refused to abide and or comply with the order. All this can be gathered from the evidence of PW1 at pages 61-63 of the record of appeal, this is what PW1 said at page 63 lines 23-26:
“The defendant did not stop their act of trespass even after the judgment from the Osemawe palace, when the defendant did not stop their act of trespass, we went back to the Osemawe who advised that we should see our lawyer.”
The implication of this is that the Respondent has resiled from the outcome of the arbitration and secondly, the Osamawe has no other remedy or means to enforce his order so he advised the Appellant to see his lawyer.
From the conduct of the Respondents, it is obvious that they have elected to withdraw their recognition of the Customary Arbitration, a fortiori its outcome is no more binding on them and so it is safe to conclude that the Lower Court was absolutely right in holding that the Customary Arbitration Exhibit D is unenforceable and that any use of it is an exercise in futility.
Accordingly, issue No. 1 is hereby resolved against the Appellant.
ISSUE TWO
The complaint of the Appellant under this issue relates to the procedure adopted by the Trial Court during the visit to the locus in quo. Counsel referred us to pages 135-136 of the records. Counsel submits that the main purpose of visiting the locus in quo by the Trial Customary Court is not expressed or manifest on the record, so the Lower Court will not know why the visit was undertaken in the first place neither was it clear when the decision to visit the locus was taken. Counsel submitted that the visit was suo motu and it is very doubtful if the Counsel to the parties were present.
The Appellant Counsel submits further that in the instant case, it is clear that the Trial Customary Court relied on its opinion and findings instead of evidence of parties in dismissing the case of the Appellant as there is no evidence of who said or did what at the locus, this is fatal according to the Learned Counsel. He cited Onyejike V. Anyasor (1992) 1 NWLR (Pt. 218) 437.
Counsel further argued that from the records at pages 103 line 25 and 104 line 5, it is evident that the Trial Court only relied on the observation at the locus to find that there was “material contradictions” in the evidence of the Appellant, as no evidence was received at the locus.
Counsel faulted the conclusion of the Lower Court when it held that the purpose of the visit was to clear doubt as to the accuracy of the pieces of evidence so there was no need for attacking evidence or cross examination to confirm or establish the findings at the locus and that the authority of Baba-Iya V. Sikeli & Ors (2006) 3 NWLR relied upon by the Court below is not applicable here.
Finally, Counsel argued that a visit to Locus must be for a specific purpose or the reason for embarking on the visit must be recorded and that the Court must confine itself to the set or fix purpose, failure to do that is fatal to the Locus in quo proceedings.
The Learned Counsel prayed us to resolve the issue in favour of the Appellant.
The Respondents’ Counsel on the issue of visit to the Locus submits that the purpose of an inspection of a locus in quo is for the purpose of enabling the Court to understand the questions that are being raised at the trial and to follow the evidence and apply such evidence. He submits further that although it is ideal for the Court to record the full notes of the inspection in the record book, absence of the record of the inspection is not fatal to the validity of the judgment. See the case of Obi V. Mbionwu (2002) 101 LRCN 1890 at 1906.
The Respondents’ Counsel urged us to resolve the issue against the Appellant moreover the Trial Customary Court did not base its judgment on his observation at the scene, no evidence to support this conclusion.
COURT
In resolving this issue whose concern purely is with the validity or otherwise of the visit to Locus conducted by the Trial Court during the hearing of the matter, it is necessary to understand that the Court is empowered to utilize its visual perception by way of visit to the disputed site especially in land disputes to clear certain doubt arising from conflicting evidence as to the existence or otherwise of some features on the land.
The power to visit the locus by the Trial Court is derived from Section 127(2)(a)(b) of the Evidence Act, 2011 which laid down two methods for the visit to locus in quo.
(a) The Court may adjourn to the Locus and continue sitting there in the normal way by hearing and taking evidence of witnesses there or
(b) The Court may just move to the Locus, make an inspection of the subject matter only and return to the Court afterwards for evidence, if any. See Aboyeji V. Momoh & Ors (1994) LPELR-46 SC and Chukwuogor V. Obuora (1987) 3 NWLR (Pt. 61) 454 at 473.
The Supreme Court in Ezeokeke and Ors V. Uga & Ors (1962) LPELR 25042 held:
“Whether a Trial Judge will visit the Locus in a civil proceeding is a matter within his own discretion. If, of course, he feels that such a visit will enable him to get a better grasp of the evidence that has been adduced before him he should visit the scene.”
And in the course of the visit the Trial Court is only bound to record the fact of the inspection he need and not give its details, yes it is a good practice to record the full details where possible but it is not mandatory. See Dza V. Konla (1956) WACA 145 and Kofi Badoo V. Ohene Ampunq (1949) WACA. Absence of the full records of the inspection of a Locus in Quo is not fatal to the validity of the judgment contrary to the submission of the Appellant Counsel, see Masi V. Shafi (1965) NMLR 33.
Appellant Counsel contended that the visit was undertaken by the Court suo motu, not at the prompting or request of the parties however, in the case of Abdullahi V. Adetutu (2019) LPELR 47384, the Supreme Court said that a visit to Locus can be undertaken at the instance of any one of the parties or both parties or suo motu.
What however the Court is not allowed to do, is that it cannot use the result of its own observation unsupported by evidence to form the basis of his judgment.
In this case, the fact that the visit was conducted on 6th September, 2006 was duly recorded at page 82 of the record of appeal and it is obvious that both parties attended the Locus and even showed the Court certain features on the land like Kenken River and the Cocoa farm, five stands of oranges and four stands of Cherry and some other things marking their boundaries.
The argument by the Appellant’s Counsel that the Trial Judge used his unconfirmed observation at the Locus to bring out contradictions in the case at pages 103 and 104 of the records has no factual or legal foundation. I do not agree with the Appellant at all.
I am of the firm view that the visit to Locus in this matter was undertaken in accordance with the standard requirement and there being no evidence on the record that the Trial Judge or indeed the Court below founded their decision on any unconfirmed findings made at the Locus, this issue has to fail and it fails. It is therefore hereby resolved against the Appellant.
ISSUE THREE
Whether in the light of the oral and documentary evidence and the totality of the other material evidence before the Two Lower Courts, the decision of the Customary Court which was affirmed by the Lower Court is not liable to be set aside on the ground of same being perverse.
The Learned Counsel started his submissions on this issue by saying that it is the duty of the Trial Court to evaluate evidence adduced at the trial and make specific findings, where the Trial Court make inconsistent findings on the same piece of evidence or failed to make any finding on vital issues in controversy or where the decision is not supported by evidence, that decision is perverse. Dike and Anor V. Nwankwo (1997) 3 NWLR (Pt 495) 574.
In the instant appeal, the Learned Counsel submits there are instances that the decision of the Customary Court which was affirmed by the Lower Court was based on findings that are erroneous.
Counsel argued that the parties are one on the fact that the Appellant’s land is at Labedo (page 4 of the record) while the Respondent’s land is called Fasimoye. He referred to the evidence of Dw1 at page 13 of the Record of Appeal.
That at page 74 it was conceded that Plaintiff’s father through Famuditi founded Labedo village.
Learned Counsel further submitted that admitted traditional evidence of how and who founded a parcel of land or who first settled thereon is the best traditional way of proving title to land and there would be no need to prove other acts of possession, also that all minor contradictions are of no moment. Runsewe V. Odutola (1996) 4 NWLR (Pt. 441) 143.
The Learned Counsel further contended that the Customary Court did not point out any contradiction in the evidence of PW1 who gave the main traditional evidence of how the land in dispute devolved on the Appellant. It is settled, counsel added, that contradictions that will affect a party’s case must be real, material and fundamental. See: Ezekwesili V. Onwagbu (1998) 3 NWLR (Pt. 541) and Ibe V. State (1993) 7 NWLR (Pt. 304) 185.
In the instant appeal, there is no single material contradiction identified by the Trial Court. So the dismissal of the Appellant’s claim by the two lower Courts according to the Appellant’s Counsel is wrong and cannot be supported in law by the evidence on record. He however submitted that the identity of the land which was an issue at the trial though very vital, remained unproven or established by the Appellant but even then the proper order to make is to nonsuit the Appellant or make an order for retrial on the issue of the identity or size of the land to be declared. He cited Arabe V. Asanlu (1980) 12 NSCC 213.
Although the following facts have been proved according to the learned counsel:
(1) That the land in dispute is in Labedo Village
(2) That the entire Labedo village where the land in dispute is located was founded by the Appellant ancestors.
(3) That the Respondent has maintained that they have claim to Labedo.
For that reason, this issue should be resolved in favour of the Appellant referring to the evidence of PW1 at lines 10-15 of page 64. Counsel concluded that it is clear that what is in dispute is the size or identity of the land so the proper order by the lower Court was to nonsuit the plaintiff/appellant or at best make an order for retrial.
In reply, the Respondents’ counsel submits that since the case of the Appellant at the trial was for declaration of title to the land in dispute having failed to satisfy the requirement of proof, the trial customary Court and the lower Court were right in dismissing the Appellant’s claim particularly when identity of the land is not ascertained.
The Appellant in his appellant’s reply to respondents’ brief of argument submits further that since the Respondents have finally conceded that the Labedo land belongs to the Appellant by the DW1 saying that Labedo’s boundaries are within another person’s land i.e not in Fasimoye land. He urged us to hold that the land in dispute is the Labedo land.
COURT
Here the main contention of the Appellant is that the evidence led at the trial has sufficiently proved title on Labedo land in his favour yet the Trial Customary Court dismissed his claim and the High Court affirmed the order for dismissal instead of non-suiting him or ordering for a retrial on the issue of identity of the land.
One can see clearly that the claim of the Appellant as Plaintiff was founded on traditional history. This much can be gathered from his plaint – the process by which the action originated – see page five (5) of Record of Appeal much more so from the evidence adduced and relied upon at the trial, especially from PW1 at page 61 who happened to be the star witness in the matter. He gave evidence of who was the original founder of the land he called Labedo.
However, PW1 and his other witnesses did not seem to agree on the features and boundaries of the disputed land. Meaning in short that the evidence adduced by the Appellant has not brought out the necessary ingredients needed to warrant a declaration of title in his favour. In all instances, one of the 1st duty of a plaintiff in a dispute concerning title to land is to establish with certainty and accuracy the identity of the land. This is a condition precedent sine qua non to the success of the claim, especially as in this case where ab initio the identity of the land is an issue. See Adeniran V. Ashabi (2004) 2 NWLR (Pt. 857) 375.
Similarly., the plaintiff has a duty to prove the precise area his claim relates. Where the plaintiff fails to do that by the evidence produced by him whether oral or documentary, the claim must be dismissed. See Otanma V. Youdubagha (2006) 2 NWLR (Pt. 964) 337.
It must be borne in mind in this case that the principal claim is for declaration that the Plaintiff family is entitled to Customary Right of Occupancy over the piece of land being disputed over; see the Amended Claim at page 5 of the record. Being a declaratory relief it is not granted on the admission or implied admission of the Defendant. It is granted only when the Court is satisfied and convinced by the strength of the evidence adduced by the Plaintiff and the Court is of the opinion that the party seeking the relief is fully entitled to be so granted. See Tukuru & Ors V. Sabi & Ors (2013) LPELR 20176 SC.
Come to think of it even the contention by the Appellant counsel that DW1 admitted that the Appellant’s progenitor founded the land in dispute is not supported by evidence on record. What DW1 actually said in his evidence at page 74 is that Labedo was founded by “Famuditi” having being given by Chief Akintirin. Whereas the Appellant as PW1 at page 61 line 25 said “The original owner of Labedo is Oba Ajisowo” and there is no form of evidence on record to suggest that Chief Akintirin, Famuditi and Oba Ajisowo are one and the same.
It is therefore wrong to argue that both parties have admitted to a common founder as there is no evidence upon which such a contention is founded.
It is trite that declaratory judgments are made based on proof rather than on admission that is why it is said that in land matters, Plaintiff succeeds on the strength of his own case, not on the weakness of the defendant’s case. See Ibe V. Auta (1998) 2 NWLR (Pt. 538) 497.
One of the prerequisites of proving title to land according to the Supreme Court is that the party claiming must ascertain the size and the boundaries of the land he is claiming, where he fails to do so, his claim will fail. See Fagunwa V. Adibi (2004) 17 NWLR (Pt. 903) 544.
Ordering this case back for retrial in order to determine the boundary or to have the plaintiff non-suited is to go against the established order and prescription of the Supreme Court and indeed this Court that any person claiming an interest in land must prove the exact location and the precise area to which his claim relates. This is a foremost and fundamental duty on the Claimant, failing which his claim must fail and be dismissed. See the cases of Ministry of Land and Housing Bauchi State & Anor V. Tirwun (2017) LPELR and Makanjuola V. Balogun (1989) 3 NWLR (Pt. 108) page 192.
For all that I say above, therefore, the dismissal of the Appellant’s appeal by the Lower Court was based on sound legal foundation.
It is a well-settled position of the law that where the findings of fact of a trial Court are correct, the burden is on the person challenging the findings on appeal to displace this presumption. See Bakare V State (1987) 1 NWLR (Pt 52) 579 and Moses V. State (2006) LPELR 1915 (SC).
In my view, the Lower Court was right when it held that it is the Trial Court’s duty to make findings of fact being the Court that saw and heard witnesses and it is not the practice of an appellate Court to disturb the trial Court finding of fact except where the findings are at variance with evidence. Ibeh V. State (1997) LPELR 1389 (SC).
Where findings of fact by a Trial Court are supported by evidence and there is no perversity in the conclusion an Appellate Court is always reluctant in disturbing such findings, especially when the findings are affirmed by another Appellate Court.
The last issue too is hereby resolved against the Appellant.
I find no merit in this appeal, same is therefore dismissed. The judgment of the Lower Court hereby affirmed by me.
RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my brother YUSUF ALHAJI BASHIR, JCA.
I agree with his reasoning and conclusions.
The Appeal is dismissed by me.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been availed a draft of the judgment delivered by my learned Brother, YUSUF A. BASHIR, JCA.
I agree with him in his resolution of the three issues against the Appellant. Thus, the appeal is devoid of merit and is hereby dismissed by me. In consequence, the judgment of the lower Court is accordingly affirmed.
Appearances:
Adetunji Oso, Esq. with him, D. A Abidimme For Appellant(s)
A. O. Thomas, Esq. For Respondent(s)