ADISA LASISI & ORS v. ALABI TAIWO (2019)

ADISA LASISI & ORS v. ALABI TAIWO

(2019)LCN/13302(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of May, 2019

CA/IB/364/2013

JUSTICE

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

1. ADISA LASISI
2. OLUFEMI LASISI
3. WASIU SULE
(for themselves and on behalf of Solana & Ewu family)Appellant(s)

AND

ALABI TAIWORespondent(s)

RATIO

THE EFFECT OF REJECTION OF TRADITIONAL EVIDENCE

Let me emphasize the point here that the position of the law on the effect of rejection of traditional evidence is as stated by the Supreme Court in the case of Odofin v. Ayoola (1984) 11 SC 72 at 106, (1984) NSCC (Vol. 15) 711 at 720 per Karibi-Whyte JSC as follows:
It follows therefore that where traditional evidence of that alleged from which title is derived is lacking or rejected as was in this case such evidence is not merely inconclusive but also cannot be relied upon whether any other acts positive or numerous can support evidence of ownership. This basic foundation that is traditional evidence having been rejected there is nothing on which to found acts of ownership. PER TALBA, J.C.A.

BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

The claimants action being one for a declaration of title to land, the burden of proof lies on them and they must succeed on the strength of their own case. See Owoade v. Omitola (1988) 2 MVCR (pt. 77) 413; Odofin v. Ayoola (1980-1993) 2 SCJL 175. PER TALBA, J.C.A.

WHETHER OR NOT AMENDMENT OF PLEADINGS CAN BE MADE AT ANY STAGE OF THE PROCEEDINGS BEFORE JUDGEMENT

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal from the decision of the Ogun State High Court Abeokuta Judicial Division, Holden at Abeokuta, presided over by Hon. Justice Tajudeen A. Okunsokan and delivered on the 3rd day of June, 2013.

The Appellants who were the claimants before the lower Court for themselves and on behalf of Solana and Ewu family claimed against the defendants now Respondents in this appeal jointly and severally as follows:
1. A DECLARATION that the plaintiffs are the persons entitled to apply for and obtain a statutory right of occupancy in respect of ALL THAT piece or parcel of land situate lying and being at MAGBON ETIDO AREA and measuring approximately five (5) acres in the Obafemi/Owode Local Government area of Ogun State.
2. Two (2) Million Naira general damages for trespass committed by the defendants for going into the plaintiffs land without the knowledge, consent and authority of the said plaintiffs.
3. AN ORDER of perpetual injunction restraining the defendant by himself, servants, agents and/or privies from committing any further acts of trespass on the

land in dispute.

Pursuant to the commencement of the High Court of Ogun State (Civil Procedure) Rules 2008, the claimants filed their statement of claim and other front-loaded processes on the 7th April, 2009. On the 25th January, 2010, the defendant filed his statement of defence counter claim and other front loaded processes out of time. And same were deemed properly filed and served by an order of the lower Court dated the 9th January, 2010.

The defendant now Respondent counter claimed against the claimants now Appellants as follows:
1. A DECLARATION that the defendant family is the person entitled to customary/Statutory Right of Occupancy over all that piece or parcel of land Survey on Plan No. OG/1270/2009/86 dated 10th September 2009 drawn by K.S. Adekoya a registered Surveyor.
2. AN ORDER of forfeiture against the claimants over all that piece or parcel of land survey on Plan No. 565/2009/001 draw by M.O. Ogunkoya pleaded by claimants in paragraph 20 of their statement of claim.
3. AN ORDER of perpetual injunction restraining the claimants whether by themselves their servants, privies and or any person claiming through them from

committing any further act of trespass on the land in dispute.
On the 14th April 2010 the claimants/defendants to the counter claim filed their reply to the statement of defence and a defence to the counter claim; with other front loaded process. And pursuant to the leave granted by the lower Court on 10th June, 2010, the defendants/counter claimants filed an amended statement of defence and counter claim on 11th June 2010.

BRIEF FACTS OF THE CASE
The case of the appellant is that the land in dispute originally belong to PA ARO SAMKO who was from Ojora Compound, Igbein Abeokuta. PA ARO SAMKO a hunter left Abeokuta and settled in Magbon many years ago. At Magbon Aro-Samko married two wives namely (1) Efuyemi (2) Desiyen. Efuyemi begat two children for Aro-Samko namely: Solana male and Ewu female. The second wife begat only one child called Konigbagbe female.

Ewu got married to her husband from Ibaragu town near Sango. Ewu had a child called Oga-Edu m. After sometime Oga-Edu came back to Magbon to live in his mothers place. Oga-Edu got married and had children in Magbon, (1) Alimi Akio and (2) Lasisi Idowu, who is the

father of the 1st Claimant/Appellant in this suit.

Solana m who was resident in Magbon begat Molake f and Molake had three children (1) Ketison m (2) Sarau m (3) Olaewe f.

Konigbagbe f got married to her husband from Pakuro Village and begat only one son named Ogunleye m and Ewusi f. Ogunleye also came back to his mothers place at Magbon.

After the death of Aro-Samko the land was partitioned into two (2) i.e.
1. Solana & Ewu = One portion
2. Ogunleye & Ewusi = One portion

At the time of the partition, Solana and Ewu land was on the left going from Magbon to Ofada. Ogunleye and Ewusu portion was on the right going from Magbon to Ofada.

Ogunleye married two wives named Barikisu and Obiede. Barikisu had three children Moyoola, Muniratu and Wahab. Obiede had three children, Olu, Ishola and Oriyomi. Muniratu is the mother of Alabi Taiwo, the defendant in this case who is only entitled to part of the land partitioned for Ogunleye and Ewusu which is on the right when going to Ofada from Magbon.

September, 1955, the Appellants family represented by Molake and Alimi Akio allocated or donated part or portion of the Appellants land to community for the building of a school which was then known as Egba Divisional Council School. The school is in existence until today.

Sometime in 2008 the Respondent trespassed on the Appellants land hence the appellant challenged him and subsequently filed a suit against the Respondent for a declaration of title, damages for trespass and a perpetual injunction.

On the part of the Respondent the brief facts is that the defendant who is the Baale of Magbon-Etido. The land in dispute forms part of a vast area of land situate at Magbon Etido. The settler and founder of Magbon-Etido was Oshosaludo a.k.a. Aro Samko, a native of Igbein in Abeokuta. Aro Samko being the title bestowed on Oshosaludo by the people of Orile Igbein of Abeokuta.

Oshosaludo named his new abode as Erinimagbo Etido because he hunted to the place where Elephant was resting on a coconut tree on a land surrounded by water.Oshosaludo married Konigbagbe who had earlier married another husband for whom she begat Ewu

and Odukeye before marrying Oshosaludo Konigbagbe begat Ogunleye and Ewusu, whose name is shortened as Ewu. Ogunleye begat Muniratu f, Iyabo f, Ishola m Salawu m and Wahabi m. Muniratu begat Chief Alabi Taiwo (defendant) Wahabi begat Ayinde ogunleye m and Abike Ogunleye f.

Ewu begat Deboun who begat Aduke who begat Wasiu m. The claimants are descendants of Solana (maternal side) and Solana is a native of Abaderen. Oga Edu an Egun man sojourned to Abaderen and married Adeyen the daughter of Solana. Oga-Edu later came to settle at Magbon-Elido fishing in Ogun River situated at Magbon Etido and Konigbagbe gave him house to stay and land to farm as customary tenant Solana is from Abaren village he was not a native of Magbon Etido and never resided in Magbon Etido. The Ancestors of the claimants farmed arable crops on a portion of land at Magbon Etido measuring about five acres of land as customary tenants of Oshosaludo. After the death of the claimants father none of the claimants family has ever been using the farm and it has since reverted

back to the defendant family who are presently farming on it. Solana did not have any land in Magbon/Etido which he could partition between his children. The defendant was the person that dug the borehole that is in Magbon Etido village.
The defendants father Karimu Taiwo is a native of Oniyan village which is about 10 kilometers to Magbon-Etido. Karimu Taiwo married Muniratu the daughter of Ogunleye of Magbon Etido. The claimants are descendants of Oga Edu and Solana.

The family members of the defendant have always being appointed as Baale of Magbon-Etido, 1st was Baale Ososaludo, 2nd Baale was Konigbagbe the 3rd Baale was Ogunleye and the current Baale is the 1st defendant. Their family is the only lineage in Magbon Etido that can be appointed. Chief Gudugbo that is the Chief priest to deities in Magbon Etido and the reigning Gudugbo is the 2nd defendant who is also the Ajana Oro of Magbon Etiodo. Most of the customary tenants who are presently cultivating part of the land in dispute inherited the portion granted their fore fathers by the defendants ancestors. Some of the families are Shodiya family, Akinyemi family and Bamgbose family.

Both

the claimant\appellant and the defendant/Respondent called five witnesses each at the trial. The learned trial Judge in his judgment delivered on the 3rd day of June, 2013, he held as follows:
In the final analysis the main claim of the claimants as well as the Counter-claim of the defendant lack merit and are liable to be dismissed in their entirety.
Accordingly both the main claim of the claimants and the counter claim of the defendant are hereby dismissed in their entirety.

It is against that judgment that the plaintiff has appealed to this Court. The notice of appeal was filed on the 30th July, 2013, it is at pages 387-391 of the record. The notice of appeal contain six (6) Grounds of appeal. The record was transmitted on 1st November, 2013. The judgment is at pages 352-386 of the record. The Appellants brief was filed on the 22nd November, 2013.

At the hearing of this appeal prince P.A. Adesemowo appeared for the Appellants while Ayodeji Ariyo appeared for the Respondent. The Appellants counsel informed the Court that there is no Respondents brief. The Respondents counsel informed the Court that the law firm was just

briefed to handle the appeal and he asked for an adjournment to file Respondents brief.

However, from the Courts record an Order was made since 2015 that the appeal be heard on the Appellants brief alone. Since the Court is bound by the said order, the Appellants counsel proceeded to adopt his brief of argument and he urge the Court to allow the appeal.

The Appellants counsel formulated three issues for the determination of this appeal thus:
1. Whether the lower Court applied correctly the rule in the case of Kojo II v. Bonsie (1957) NWLR 1223 in order to determine the issue of ownership of the land in dispute.
2. Whether the lower Court was right in refusing the amendment sought by the Appellants.
3. Whether the Appellants have not established a better title to the land in dispute.

ARGUMENT ON THE ISSUES
Issue One
Whether the lower Court applied correctly the rule in the case of Kojo II v Bonsie in order to determine the issue of ownership of the land in dispute.

Appellant counsel submitted that the Appellants pleaded and gave evidence of facts relating to how the land in dispute was founded, the person

who founded the land, who exercised original acts of possession as well as the persons on whom the title in respect of the land devolved since its first founding. He referred to paragraphs 4-15 of the statement of claim at pages 4-6 of the records. And the written statement on oath of CW5 at pages 17-19 of the records. The evidence on oath in support of the traditional history of how the Appellants came into possession of the land in dispute by inheritance and which the lower Court rejected on the ground that such evidence on records are not plausible or credible.

The lower Court wrongly relied on the evidence of CW2 elicited under cross-examination to justify contradiction. The leaned trial Judge referred to the evidence of CW2 at pages 370 lines 20-23 as follows:
I know the defendant very well; there is no relationship between our family and the defendant family, we are just living together in the village.

The reception in evidence of the evidence of CW2 elicited under cross-examination was wrong; hence the evidence was not pleaded, by the appellant or Respondent. The Court should have ignored or disregarded the evidence. He

cited the case of Usenfowokan v. Idowu & Anor (1969) 1 All NLR 125 at 131.

The learned counsel submitted that if the lower Court had ignored the evidence of CW2 elicited during cross-examination the only thing that will remain on the records is the Appellants evidence of traditional history and that of the Respondent being in conflict. And the lower Court will now apply the rule in the case of Kojo II v. Bonsie, to determine the true owner of the land in dispute. Instead of allowing the land to remain owner-less as the lower Court did in this case. Hence the lower Court also dismissed the counter claim of the Respondent on the grounds that there were contradictions in the evidence of the traditional history adduced before the lower Court and same was also rejected. The appellant counsel submitted that when the trial Judge cannot find any of the two traditional histories probable or conclusive, the lower Court ought to have declared both traditional histories of the two parties inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership. He relied on the following cases: Igbuokwelu & Ors.v. Umeanafunkwa & ors

(1994) 5 SC N.J. 24 at 57; Sanusi v. Adebiyi (1997) 12 S.C.J.N. 25 and Kojo v. Bonsie (supra) where Lord Denning said at page 1226 as follows:
Where there is a conflict of traditional histories—– The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable.

In the case of George Okegbe & Ors v. Nnadi Chikere & Ors (2000) 3 NSCQR 215 the Court held that where there is a conflict in the evidence of both parties on the traditional history of the land in dispute the trial Court is enjoined not to rely on the credibility or demeanor of the witness in resolving such conflict but refer to or resort to recent acts or factual evidence of contemporaneous acts or events which support the party whose version will be more probable. See Ezema v. Ezeja (1995) 9 NWLR (pt. 419) 300.

It is the contention of the Appellants that by Exhibit B the Appellants have exercised their acts of recent possession or possession within living memory when the Magbon community gave an undertaking in

favour of the appellant for the use of part of or portion of the land in dispute to build a school. By this act the community recognized the appellant as the owner of the land in dispute. And by Exhibit A, the appellant survey plan the following features were shown on the Appellants land thus:
1. School (2) Mosque (3) Borehole (4) Ogun Shrine (5) Giriyan Shrine and (6) Ojualale Shrine.

All these features and boundaries which are shown on Exhibit A were not challenged by the Respondents before the lower Court. The defendants counter plan was tendered and marked rejected. The Respondents has no plan to determine their own features if any on the land in dispute.

The learned counsel submitted that the lower Court failed to consider the acts of recent possession which are shown in Exhibit A and which are not denied by the Respondent by way of a counter plan.

The Respondents counter plan having been rejected at the trial. Learned counsel submitted that a consideration of the recent acts of possession as enunciated in the case of Kojo v. Bonsie (supra) will have tilted the case of Justice in favour of the Appellants as the factual evidence of

contemporaneous acts or events as shown in Exhibits A and B supported the Appellants version which evidence is more probable.

The substratum of the Appellants case in this appeal is that when the learned trial Judge cannot find any of the two traditional histories probable or conclusive, the learned trial Judge ought to have declared both traditional histories of the two parties inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership. In other words the learned trial Judge should have relied and applied the rule in Kojo II v. Bonsie (supra).

It is now apt to look at the findings of the learned trial Judge with respect to the traditional evidence led by the Claimants/Appellants. The learned trial Judge at page 371 of the records he stated thus:
In this instant case, with the contradiction in the evidence of the 1st and 2nd claimants as CW5 and CW2 respectively on their genealogy, it is my view that the traditional evidence tendered by the claimants did not make a consistent sense nor affirmatively link the 1st and 2nd Claimants with the traditional history they rely

on and I so hold. The case of the 3rd claimant is even worse as no fact was pleaded at all to link him with the traditional history, not to talk of the absence of evidence in this regard. The evidence of tradition led by the claimants is contradictory and incredible, and is therefore rejected.

It is equally important to look at the findings of the learned trial Judge with respect to the traditional evidence led by the defendants/Respondents. At page 378 of the record the learned trial Judge stated thus:
In the circumstances as I hold with respect to the case of the claimants it is also my view that the traditional evidence tendered by the defendant did not make a consistent sense nor affirmatively link the defendant with the traditional history which he relies on and I so hold. Also it is no more a recondite principle of law that where there is material conflict in the evidence of traditional history and also the evidence led conflicted with history pleaded the traditional history has collapsed. See Adeleke v. Asani & Anor (2002) FWLR (pt. 106) 982 at 999 para E.
I therefore hold that the evidence of tradition led by the

defendant is equally incredible and same is also rejected.

On this note I find it very important and indeed necessary to refer to the findings of the learned trial Judge at page 378 of the record therein he stated thus:
As it is now with the rejection of the traditional histories of the claimants and the defendant both the first relief in both the main claim and counter claim must fail. This is so because the claimants and defendants have respectively failed to prove the declaration of title sought by them.
In coming to this conclusion I am not unmindful of the rule in Kojo II v. Bonsie (1957) 1 WLR 1223. However this rule can only be applied where both traditional histories are plausible and capable of credibility and not as in this case where this Court has found that both are neither plausible nor credible.
I am also not unaware of the evidence of various acts of possession and ownership led by both parties suffice it to state that the law is settled that where a claimant for title to land who pleads traditional history fails to prove his root of tittle by that means, he cannot turn round to rely on acts of ownership and

possession to prove his title to land. See Odunukwe v. Ofomata (2011) All FWLR (part 568) 827 at 861 paragraph E; Marcus Ukaegbu & Ors v. Mark Nwololo (2009) All FWLR (pt. 466) 1852 at 1872-1873 paragraph H-B.

to be contradictory and incredible. The claimants action being one for a declaration of title to land, the burden of proof lies on them and they must succeed on the strength of their own case. See Owoade v. Omitola (1988) 2 MVCR (pt. 77) 413; Odofin v. Ayoola (1980-1993) 2 SCJL 175. The claimants failed to discharge the burden of proof on them. The learned trial Judge was right when he dismissed the claimants claim without any further ado. The learned trial Judge rightly gave reasons why the rule in Kojo II v. Bonsie (supra) would not apply to the instant case.
What then is the Rule in Kojo II v. Bonsie (supra). The Rule which has stood the test of time for quite some time was explained by the privy council that where traditional evidence proffered by the parties are inconclusive the Court is enjoined to take into consideration facts in recent times given by parties in order to determine which of the traditional evidence is more probable. To resort to the rule, the traditional evidence of the parties must be capable of being believed but that since the two are competing a Court cannot prefer one to the other. Rather it is enjoined to look and for

further facts in recent times to see which of the traditional history is more probable.
The evidence of the claimants that was rejected by the trial Court had no chance of being tested under the Rule in Kojo II v. Bonsie (supra). The trial Court having held that there was no credible evidence of tradition there was nothing left to establish the case put up by the claimants. See Odofin v. Ayoola (1984) II SC 72 and Fasoro v. Beyioku (1988) 2 NWLR (pt. 76) 263.
The learned trial Judge was right when he refused to apply the rule in the case of Kojo II v. Bonsie (supra) in order to determine the issue of ownership of the land in dispute, hence the rule is not apt in the circumstances of this case. Issue one is resolved against the appellant.

Issue Two
Whether the lower Court was right in refusing the amendment sought by the Appellants.

The Appellants counsel argued and submitted that the appellant sought at the trial and in the appellant counsel address leave of Court to amend by deleting the word five as contained in paragraph 23 (a) of the statement of claim dated 1st day of April, 2009 and paragraph 20 of the written

statement on oath of CW5, the appellant herein and substitute with 32.076 acres in line with the evidence on record. The Appellants pleaded by way of reply to the statement of defence and defence to counter claim of the Respondent, particularly at paragraph 15 of the said reply. And the Appellants additional written statement on oath of CW5 which was adopted as his evidence at the trial. Therein he averred that the total area of the appellant land is 32.076 acres whereas paragraph 23 (a) of the statement of claim says five acres learned counsel also referred to Exhibit A, which he said it clearly shows the area in dispute on Note 1 to be 32.076 acres. He submitted that an amendment may be made at any stage of the proceedings in order to bring the amendment in line with the evidence led at the trial and to allow Justice to be done to the parties. He admitted that the amendment is late but no any in Justice is done to the Respondents. He relied on the case of Igwe & Ors. v. Kalu & Ors (2002) 9 NSCQR 386 at 410; Chief Adedapo Adekeye & Anor. v. Chief O.B. Akin-Olugbade (1987) 6 SC 268.

The Appellants counsel submitted that the refusal to grant

leave to amend by the trial Court was based on mere technicality which Courts have frowned at. He said the lower Court relied on non-compliance with Order 39 Rule 1 (i) of the High Court of Ogun State (Civil Procedure) Rules 2008. He submitted further that the rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the course of Justice and not to defeat Justice. The rules are aids to the Courts and not masters of the Court. For the Courts to read the rules in the absolute without recourse to the Justice of the cause will be making the Courts slavish to the rules. He relied on the following cases:Odeyemi v. Agbede (2008) All FWLR (pt. 412) p. 1163; Abubakar v. Yar-Adua (2008) 1 SC (pt. 11) 77; Akpan v. Bob (2010) 17 NWLR (pt. 1223) 421 and Chime v. Chime (2001) 3 NWLR (pt. 701) 527, on the settled principle of law that in appropriate cases, the Courts now appear to be shifting away from the narrow technical approach to Justice and now pursues the course of substantial Justice.

Now in order to appreciate the finding of the leaned trial Judge on this issue it becomes necessary to refer to his judgment at

pages 372 to 374 of the records, it reads:
Now the claimants in the final written address of their counsel sought leave to delete the word five in paragraph 23 (a) of the statement of claim and paragraph 20 of the written statement on oath deposed by CW5 on 7th April 2009 and substitute same with 32.076 acres the reason in their view being to bring same in line with evidence on record and also with paragraph 15 of the Reply to Statement of Defence and defence to counterclaim as well as paragraph 15 of the additional written statement on oath deposed to by CW5 on 14th April 2010.
However Order 24 Rule 1 of the High Court of Ogun State (Civil Procedure) Rules 2008 provides that:
A party may amend his Originating Process and Pleadings at any time before the close of pre-Trial Conference and not more than twice during the trial but before closing his case.
The effect of the provision is that the claimants cannot seek leave to amend their pleadings at the time they sought leave to do so as they have already closed their case by that time. In reaching this conclusion I am not unaware of

several decisions of Courts to the effect that leave to amend pleadings may be granted at any stage of the proceedings suffice it to state that Courts were in those decisions interpreting provisions which were in pari material with Order 26 Rule 1 and 2 of the High Court of Ogun State (Civil Procedure) Rules 1987 which is no more in operation in this state.
However, assuming without holding that leave to amend pleading can be sought by a party after he has closed his case, by the provisions of Order 39 Rule 1 (1) of the High Court of Ogun state (Civil Procedure) Rules 2008, the application for leave to amend ought to be by motion supported by affidavit stating the reasons(s) for the application. There is no such motion before this Court.
Assuming without holding that there is such motion before this Court it need not be stressed that leave cannot be granted to amend paragraph 20 of the written statement on oath deposed to by CW5 on 7th April 2009 which having been adopted by CW5 at the hearing of this case becomes part of his evidence in chief in the case. As regards the reason offered as it now relates to the amendment sought in respect of paragraph

23 (a) of the statement of claim which is to bring same in line with evidence on record and also with paragraph 15 of the Reply to statement of Defence and Defence to counter claim as well as paragraph 15 of the Additional Written Statement on oath deposed to by CW5 on 14th April 2010 it is instructive to note that evidence before this Court includes paragraph 20 of the written statement on oath deposed to by CW5 on 7th April 2009 by virtue of which the CW5 gave evidence that they are claiming five acres. So 32.076 acres is not the only evidence led by the claimants before this Court on the point and as such the reason offered that is to bring paragraph 23 (a) of the statement of claim in line with evidence on record is baseless.
Having regard to the conclusions reached above the application for leave to delete the word five in paragraph 23(a) of the statement of claim and paragraph 20 of the witness statement on oath deposed to by CW5 on 7th April, 2009 and substitute same with 32.076 acres is hereby refused.

I have taken the pains to reproduce the findings of the learned trial Judge in order to appreciate his reasoning.

Although it has been stated by this Court and the apex Court that amendment of pleadings can be made at any stage of the proceedings before judgment, so long as it will not entail any in Justice on the other party. See UBN Plc v. Lawal (2012) 6 NWLR (pt.1295) 186; Okeowo vs. Migliore (1979) 11 SC 139; Ojobaro v. Kuku (1986) 3 NWLR (pt.31) 697; Maersk Line v. Addide Investment Ltd (2002) 11 NWLR (pt.778) 317.
What is paramount in the mind of the Court always is to ensure that Justice is served to all parties who should not be allowed to take an undue advantage of the other. In this instant case there was no any formal application for leave to amend the pleadings as required byOrder 39 Rule 1(1) of the High Court of Ogun State (Civil Procedure) Rules 2008, which provides that an application for leave to amend ought to be by Motion supported by affidavit stating the reason(s) for the application. The learned counsel for the appellant submitted that the refusal for leave to amend by the trial Court was based on mere technicalities which Courts frowned at and the Justice in this amendment is to do substantial Justice and not to be indulged in unnecessary

technicalities.
The claimant/Appellants in the final written address of their counsel sought leave to amend. It is settled principle of law that pleadings are not amended by address of counsel nor, a fortiori by arguments of counsel on appeal. See Adone v. Ikebudu 8 NSCQR 174 at 190 191 paragraphs H A. And in Ibigbami v. Military Governor Ekiti State (2004) 4 NWLR (pt.863) 243 at 250, the Court held:
Rules of Court are meant to be complied with, therefore any party or counsel seeking the discretionary power of a Court to be exercised in his favour must bring his case within the provisions of the rules on which he purports to make his application if a counsel fails to discharge his duty in that respect it is fair and right that a Court should refuse to exercise its discretionary power. Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case within a procedure made for the purpose of a fair and quick trial.
It is very important for a claimant wishing to amend his writ of summons or pleadings to give briefly in a general form the particulars of his amendment

which will give the defendants reasonably sufficient information as to the detail thereof. A leave to amend a writ or pleadings which will violate the rule of audi alteram partem ought not be allowed. See Victor Adegoke Adewumi & Anor v. Attorney General Ekiti State & 6 Ors (2002) 2 SCM 1 and Jessica v. Bendel Insurance Company Ltd (1993) 1 SCNJ 240.
The learned trial Judge was right in refusing the amendment sought by the appellant. And moreso the appellant can only amend his writ of summons and statement of claim. A written witness statement on oath cannot be amended, hence it is evidence on record.

On this note the second issue is resolved against the appellant.

On the third issue it is the contention of the appellant that the appellant has established a better title to the land in dispute learned Appellants counsel referred to paragraph 15 of the reply to the statement of defence and defence to counter claim as well as paragraph 15 of the additional written statement on oath of CW5 which he adopted at the trial. And he submitted that the total area of the Appellants land at Magbon Etido Village is 32.076 acres on the record and

fully shown in Note 1 of Exhibit A. The boundaries of which are sufficiently described in paragraph 15 of the adopted additional witness statement on oath. And the evidence led at the trial shows that the land in dispute is bounded as follows:
In the North = Ibore River
In the West = Bamgbose family land
In the East = Osho Olofin family land/Ofada Road (to the right) Konigbagbe family.

See page 178 lines 15 of the records, learned counsel submitted that the boundaries are shown in Exhibit A that the total area of the Appellants land in dispute is 32.076 acres. The Respondent trespassed on part or portion of the land in dispute which is 21.179 acres (see Note 4 of Exhibit A). The area claimed by the Appellants as per the pleadings and the evidence before the Court is 32.076 acres and it included the portion of the area trespassed upon by the Respondent, which is quite certain and known to the Respondents. The learned counsel submitted that the Appellants by paragraph 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the written statement on oath of CW5 traced their root of title or genealogy through

their pro-genitor Aro-Samko the original owner of the land in dispute. See pages 17, 18 and 19 of the records.

He submitted further that CW3 and CW4 are boundary men to the land in dispute as shown in their written statement on oath. Under cross-examination CW3 confirms that the land in dispute belongs to the Appellants because CW3 land forms a common boundary with the Appellants. While CW4 from Bangbose family also confirmed that their family land forms a common boundary with the land in dispute by the west and even further confirmed that the Appellants gave land for the school when Awolowo started free education and by Exhibit A, the following features are on the land in dispute (1) School (2) Mosque (3) Well (4) Borehole (5) Ogun Shrine (6) Giriyon Shrine (7) Ojualale Shrine. Its submitted there is no specific traverse challenging the boundaries and features on the claimants land by the defendant. He said where the Appellants plead and serve a plan showing clearly the boundaries and features of the land in dispute, the Respondent who wants to dispute either the boundaries or the features must come by way of clear and specific traverse. It

mere general traverse will not be sufficient proof of those boundaries and features. He submitted further that in order to succeed for a declaration of title to land the Appellants have a duty to prove only one of the ways emaciated in the case of Idundun vs. Okumagba (1976) 910 SC 227. He contended that the Appellants on the pleadings and traditional evidence adduced have established their root of title to the land in dispute and are therefore entitled to the declaration sought before the lower Court.

By Exhibit B the Appellants have exercised their acts of possession when the Magbon Community gave an undertaking for the use of part of the Appellants land to build School. The Appellants also by their pleadings and evidence have established before the trial Court that upon partition of the land in dispute the Solana & Ewu were given one portion. And since the partition the Appellants have continually been in peaceable and lawful possession, which encouraged the Magbon Community to seek for donation of part of Ewus children land to build school. The school is still in existence till today. Exhibit B the

agreement dated 27/9/55 between Magbon Community and Ewus children on the piece of land, was tendered before the lower Court without any objection. The lower Court was wrong in refusing to grant the reliefs sought by the Appellants, because of the overwhelming evidence adduced by the Appellants have copiously shown or established that the Appellants have a better title to the land in dispute. The learned counsel cited the following cases to buttress his argument, thus: Ogunbambi v. Abowaba (1951) 13 WACA 222 and Adesanya v. Otuewu (1993) 1 NWLR (pt.270) 414.

At this juncture let me refer to the judgment of the learned trial Judge at page 376 of the records, wherein he stated thus:
Having regard to the findings made above it is my view that the claimants have failed to establish with certainty and precision the area and/or boundaries of the land to which their claim relates

Now what are these findings made by the learned trial Judge? At page 374 376 he stated thus:
Now the claimants pleaded in paragraph 20 of the statement of claim and led evidence through CW5 that Survey Plan No Disptute/1565/2009/001

(Exhibit A) represents and depicts the certainty and extent of the land in dispute at all material time.

Paragraph 1 of the Note on Exhibit A states that the area verged Red and measuring approximately 32.076 acres was the portion partitioned to Solarin and Ewu.
The claimants pleaded in paragraph 15 of their Reply to statement of defence and defence to counter claim and led evidence through CW5 that the total area of their land at Magbon Etido Village is 32.076 acres. However out of these acres paragraph 2 of Note on Exhibit A stated that the area verged Brown and measuring 10.897 acres was donated/granted to the Village Community and known as Magbon Village while paragraph 3 of the Note on Exhibit A stated that the Area Verged Blue was donated/granted to the Magbon Community for a School. By paragraph 4 of the Note, area verged Yellow measuring 21.179 acres out of the area verged Red was said to have been trespassed upon by the defendant.
However the claimants in this case are seeking declaration of title over five acres of land. These five acres of land are neither shown nor

identified in Exhibit A.
Exhibit A therefore fails to prove the boundaries of the five acres being claimed. What is more there is no averment in the pleading that the five acres form part of the area verged Yellow. Even if because of the Note in Exhibit A that the area verged Yellow is the portion trespassed upon by the defendants, it is assumed that the five acres are within the area verged Yellow for this Court to give judgment in favour of the claimants over the five acres; the five acres must be clearly identified and its boundaries clearly known.
Assuming in the face of the apparent in adequacy of Exhibit A to clearly show the land in dispute reliance is placed on the pleadings and oral evidence of the boundaries of the land in dispute led, then the claimants pleaded in paragraph 15 of their statement of claim as follows:
Front – Ofada Road
Left – Bamgbose
Right – Oso-Olofin
Back – Stream.
However paragraph 15 of the Reply to statement of defence and defence to counter-claim reads as follows:
15 that the claimants confirm that the boundaries of the land in dispute are

as follows:
North – Ibore River
West – Bamgbose Family
East – Oso-Olofin family land, Ofada Road, Konigbagbe.
Before even going to the evidence led on the above averments, it is instructive to note that they are contradictory because by paragraph 15 of the Reply to statement of defence and defence to counter-claim, Oso Olofin and Ofada Road now share boundaries with the land in dispute on the same side. Also Konigbagbe which by paragraph 15 of the statement of claim did not share boundary with the land in dispute now share boundary with it. That is not all by paragraph 15 of the statement of claim the land shares boundary with a stream but by paragraph 15 of the Reply to statement of defence and defence to counter claim, it did not share boundary with a stream but with Ibore River. It is beyond any doubt that a stream is different from a river.
Now to the evidence led on the averments, CW5 in his examination in Chief gave evidence of the contradictory averments in paragraph 15 of the statement of claim and paragraph 15 of the Reply to statement of defence and defence to counter-claim. The effect is that his own evidence on the

boundaries of the land in dispute is self-contradictory. That is not all CW5 testified under cross-examination as follows:
Ogun River shares boundary with our land in dispute
Apart from the fact that this is contrary to the pleadings of the claimant it also contradicts the evidence of CW5 in Chief regarding the boundaries of the land in dispute. In the same vein the evidence of CW2 on the boundaries of the land in dispute which is in line with the averment in paragraph 15 of the statement of claim is automatically contrary to the averment in paragraph 15 of the Reply to statement of defence and defence to counter-claim.

From the above findings of the trial Court, it is without any doubt, that the learned trial Judge has properly evaluated the evidence placed before him vis a vis the pleadings, it is settled principle of law that evaluation of evidence including ascribing probative value to the evidence of the witnesses is the domain of only the trial Court. See Adusei v. Adebayo (2012) 3 NWLR p.524 (SC) and Obueke v. Nnamchi (2012) 12 NWLR p.327 (SC).
Once a trial Court has applied the established principles of

law in the assessment or evaluation of evidence adduced before it, an appellate Court would have no viable justification to interfere with its decision not-withstanding the style adopted in the procedure for the evaluation. See Aborishade v. FRN (2012) 18 NWLR (pt.1332) 347 and Martins v. State (1997) 1 NWLR (pt.418) 355.

The learned trial Judge after evaluating the evidence before him came to the conclusion that the claimants have failed to established with certainty and precision the area and/or boundaries of the land to which their claim relates. The law is well settled by a long line of authorities that before a declaration of title to land is given the first duty of the claimant is to establish quite clearly, the area of the land to which his claim relates. The boundaries of the land to which the claim relates must be ascertained with a degree of precision and certainty, the test being whether a surveyor can from the record of proceedings produce a plan showing accurately the piece or parcel of land to which the declaration of title has been given. See Olasanmi vs. Oshasona (1992) 6 NWLR (pt.245) 22 at 28; Udeze v. Chidebe (1990) 1 NWLR (pt.125) 141;

Makanjuola v. Balogun (1989) 3 NWLR (pt.108) 122; Arabe v. Asanlu (1980) 5 7 SC 78; Akulaku v. Yongo (2002) 2 S.C.N.J. 255 and Adesanya vs. Aderonmu (2000) 6 S.C.N.J. 257.

The significant aspect of this case is that the decisive issue of the identity of the land granted to community and used as a school and the area which have been trespassed upon by the defendants has not been resolved. The claimants pleaded in paragraph 20 of the statement of claim and led evidence through CW5 that Survey Plan No: Dispute/1565/2009/001 Exhibit A represents and depicts the certainty and extent of the land in dispute at all material time. Paragraph 1 of the note on Exhibit A states that the area verged Red and measuring approximately 32.076 acres was the portion partitioned to Solarin and Ewu. The claimants also pleaded in paragraph 15 of their reply to statement of defence and defence to counter-claim and led evidence through CW5 that the total area of their land at Magbon Etido Village is 32.076 acres. Paragraph 2 of the note on Exhibit A stated that the area verged Brown and measuring 10.897 acres was donated/granted to

the Village Community and known as Magbon Village. While paragraph 3 of the note on Exhibit A stated that the area verged Blue was donated/granted to the Magbon Community for a School. By paragraph 4 of the note on Exhibit A, the area verged Yellow measuring 21.179 acres out of the area verged Red was said to have been trespassed upon by the defendant. It is instructive to note that the claimants are seeking declaration of title over five acres of land. These five acres of land are neither shown nor identified in Exhibit A.

Again in paragraph 15 of their statement of claim and paragraph 12 of the written witness statement on oath of CW5 the boundaries are stated as follows:
1. Front = Ofada Road
2. Left = Gbangbose
3. Right = Oso-Olofin
4. Back = Stream

While in paragraph 14 of the Reply to the statement of defence and defence to counter-claim, the claimants averred as follows:
14 with reference to paragraph 14 of the statement of defence the claimants confirm that the boundaries of the land in dispute are as follows:
North = Ibore River
West = Bamgbose Family<br< p=””>

</br<>

East = Osho-Olofin family land/
Ofada Road/Konigbagbe.

It is crystal clear that while there is a stream in the boundaries described by the claimants in paragraph 15 of their statement of claim and paragraph 12 of the witness statement on oath of CW5. There is no Ibore River, which is referred to in paragraph 14 of the Reply to the statement of defence and defence to counter-claim. It is without any doubt that a stream is by no means the same with a River and most especially a River that has its name. The appellant had failed to ascertain their boundaries. The law is well settled by a long line of authorities that the onus of proof of the identity of the land mass lies on the claimant who seeks a decree of declaration of title to the land. Where a claimant fails to prove the identity of the land in dispute his claim will be dismissed. See Makanjuola v. Balogun (1989) 3 NWLR (pt.108); Auta v. Ibe (2003) 7 S.C.N.J. 170.

The learned trial Judge came to the conclusion which he made because the appellant had failed to identify the land in dispute. Therefore the Appellants have not established a better title to the land in dispute. Issue

number three is resolved against the Appellants.
The question to ask at this stage is whether the Justice of this case demands a dismissal of the case of the Claimant/Appellant and the Counter Claimants/Respondent, with the resultant effect of allowing the land to be ownerless. On this point it is apt to refer to the dictum of Nnaemeka JSC in Okpala v. Ibeme (1989) 2 NWLR (pt. 102) 214 at 224, the sated thus:
The Court has discretion in the matter but it is one which has to be exercised cautiously judicially and judiciously. The overriding consideration at all times appears to be that considering the cases of the parties, Justice demands that the Plaintiff should be given a chance to institute another action on the same issues and should not be shut out for good and that the Defendant is not entitled to Judgment. A non-suit in a final decision which decides that none of the parties has won but preserves the Plaintiffs right of another action on the same subject matter.
In this instant case a non-suit would preserve the right of not only the Claimant but also that of the CounterClaimant right of another action what

the Claimant has failed to establish at the lower Court is the identity of the land which he claims. The Claimant made attempt to amend his originating process in the final Written Address of counsel by deleting the word Five in paragraph 23 (a) of the Statement of Claim and substitute same with 32.076 acres such a procedure is unknown to law and practice. It is purely the fault of the counsel who refused to take proper steps known to law to amend his Originating Process. In the circumstances we see no alternative but to allow this appeal and to non-suit both parties. And notwithstanding the dismissal of the Claimants Claim and the Counter Claimants Claim by the learned trial Judge. We consider the fairest course is to non-suit each party in respect of all of their claims so that either party may be at liberty to re-open fully the whole case.
See EPI v. Aigbedion (1972) 10 SC 53 and Evoyoma v. Daregba (1968) 1 All NLR 192.
The appeal is allowed. No cost is awarded.

NONYEREM OKORONKWO, J.C.A.: I have carefully perused in draft the lead judgment in this appeal by my learned brother Abubakar

Mahmud Talba, JCA who upon considering the detailed facts of the case particularly the traditional histories and acts of user of the parties held that rather than the dismissal of the respective claims of either party as ordered by the trial Judge, an order of non-suit would serve the Justice of the case enabling any party to relitigate the issues with a view to Justice.
I agree with my lord Talba JCA and associate myself with his conclusion in this appeal

FOLASADE AYODEJI OJO, J.C.A.: I have read before now the judgment just delivered by my learned brother, Abubakar Mahmud Talba, JCA I agree with the reasoning and conclusion therein. I also agree that this appeal be allowed and that parties are at liberty to file fresh suit(s) if they so wish. I abide by the consequential orders made in the lead Judgment.

Appearances:

Prince P.A. AdesemowoFor Appellant(s)

Ayodeji AriyoFor Respondent(s)

Appearances

Prince P.A. AdesemowoFor Appellant

AND

Ayodeji AriyoFor Respondent