AKINBEHINJE & ORS v. SHADRACK & ORS (2020)

AKINBEHINJE & ORS v. SHADRACK & ORS

(2020)LCN/14696(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Monday, October 12, 2020

CA/AK/99/2016

RATIO

DOCUMENT: EFFECT OF AN UNSIGNED OR UNMARKED DOCUMENT

I am of the view and it is indeed commonsensical that where a document which ought to be signed or marked, as the case may be, is not so signed or marked, the authenticity of the document is in doubt. For a document which is not signed or marked has no origin in terms of its maker or makers. Thus such an unsigned or unmarked document is inadmissible in evidence and even if it was admitted in evidence, the Court should not attach any probative value to it. In a similar scenario in the case of: Omega Bank (Nig.) Plc. v. O. B. C. Ltd. (2005) 8 NWLR (Pt. 926) p. 547 at p. 582, para. A, the Supreme Court per Tobi, J.S.C. (of blessed memory) very succinctly stated that:
“A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious. I hold that Exhibit P6 was wrongly admitted and given probative value.”
See also the cases of: (1) Attorney General, Abia State v. Agharanya (1999) 6 NWLR (Pt. 607) p. 362; (2) Nwancho v. Adam (2004) All FWLR (Pt. 225) p. 93 and (3) SLB Consortium Ltd. v. NNPC (2011) 4 SC (Pt. 1) p. 86 at p. 89. PER OMOLEYE, J.C.A.
ACTION: ATTITUDE OF THE COURT TO HYPOTHETICAL ISSUES

This is because a Court including this Court is not permitted in law and indeed devoid of jurisdiction to go into and make pronouncements on hypothetical questions or issues. See the cases of: (1) Ndulue v. Ibezim (2002) 12 NWLR (Pt. 780) p. 139; (2) Ada v. State (2008) 13 NWLR (Pt. 1103) p. 149 and (3) Elano Investments Ltd. v. Ejor & Ors. (2017) LPELR-43059 (CA). PER OMOLEYE, J.C.A.

LAND LAW: DUTY OF TO PROVE TITLE WHERE THERE IS A DISPUTE TO LAND AND THE REAL ISSUE IS ONE OF TITLE

The law is trite that, where there is a dispute as to land and the real issue is one of title, then, title must be proved. PER OMOLEYE, J.C.A.

LAND LAW: WAYS OF ESTABLISHING PROOF OF OWNERSHIP

Where therefore title to a parcel of land is in dispute, the law is established that proof of ownership of the land can be established by any of the following five methods: (a) by traditional history; (b) by production of document of title, which are duly authenticated; (c) by acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it; (d) by acts of long possession and enjoyment of the land and (e) by proof of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. To mention just a few of the plethora of judicial authorities on this age-long legal principle, are the cases of: (1) Idundun v. Okumagba (1976) 9-10 SC p. 227; (2) Nkado v. Obiano (1997) 5 NWLR (Pt. 503) p. 31; (3) Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) p. 628; (4) Madu v. Madu (2008) 6 NWLR (Pt. 1083) p. 296; (5) Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) p. 328 and (6) Atanda v. Iliasu (Supra). PER OMOLEYE, J.C.A.
RELIEFS: DUTY OF A PLAINTIFF IN CLAIMS FOR DECLARATORY RELIEFS
It is also well settled in law that, in claims for declaratory reliefs, including land matters, the Plaintiff is strictly required to plead and prove his claims on the evidence adduced by him without relying on the evidence called by the Defendant, even where the evidence of the latter supports his claim. This statement of the law has long been laid down by the Apex Court and followed by this Court in innumerable judicial authorities. In the case of: Bello v. Eweka (1981) LPELR- 765, the Supreme Court per Obaseki, J.S.C. (of blessed memory) captured the legal position as follows:
“It is true as was contended before us by the Appellant’s Counsel that the Rules of Court and Evidence relieve a party of the need to prove what is admitted, but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the Defendant that he is entitled. The necessity for this arises from the fact that the Court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu 2 WACA 336 at 337. In that case, i.e. Kodilinye v. Mbanefo Odu … Webber, C.J., Sierra Leone, delivering the judgment of the Court said: “The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title.” See also Akinola & Ors. v. Oluwo & 2 Ors. (1962) WNLR 135.”
See further the cases of: (1) Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) p. 361; (2) Addah & Ors. v. Ubandawaki (2015) LPELR–24266 (SC); (3) Emenike v. P.D.P. (2012) LPELR- 7802 (SC) at 27 D-G and (4) Akinbade & Anor. v. Babatunde & Ors. (2017) LPELR-43463 (SC). PER OMOLEYE, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

AP. MOSES AKINBEHINJE 2. MR. DAISI ORISAMUGBEHIN 3. CHIEF MEDAHUNSI ADEOYE (For Themselves And Odolawe Family Of Erinje) APPELANT(S)

And

ENITUFO SHADRACK 2. AYODELE RUWAHEN 3. SAGWE OLOWOGBOYE (For Themselves And Ogunyo Adehin Family Of Araromi-Lisa, Idepe Okitipupa) RESPONDENT(S)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against both the ruling and final judgment of the High Court of Ondo State sitting in Okitipupa per Fasanmi, J. (hereinafter referred to as “the trial Court”) delivered on the 4th day of June, 2014 and 18th day of December, 2014 respectively.

The brief background facts of this matter are that, the Respondents for themselves and on behalf of Odolawe family of Erinje sought for a declaration of title to a parcel of land lying between Ahako River and Akeun River near Agbere Village, Okitipupa Local Government and perpetual injunction to restrain the Appellants also for themselves and the family of Ogunyo Adehun family of Araromi-Lisa, Idepe, Okitipupa Local Government. The Respondents per their Writ of Summons dated and filed on 4th of July, 1991 and Statement of Claim dated 25th of July, 1991 filed on the 2nd of August, 1991 which were subsequently amended by the order of the trial Court, claimed specifically against the Appellants vide their Amended Statement of Claim verbatim as follows:
“a. A declaration that the plaintiffs are entitled to a certificate

of customary Right of occupancy to the large parcel of land shown and marked red in the defendants’ survey plan No. AW/OD/5B/82 drawn by a licensed surveyor Akin A. A. Williams, filed with their Amended statement of claim dated 20/4/83 in suit No. HOK/14/79. The said land lies between Ahako River and Akeun River and both flows south-westwards to meet near Agbere village, excluding that piece of land claimed to be in dispute between Amos Okiunrinpo and the defendants in suit No. HOK/36/86 formerly HOK/14/79.
b. Perpetual injunction restraining the defendants, their servants, agents, privies, assigns or any other person claiming through them from entering in or continue to enter the said land, or farm, or plant anything thereon without the written permission of the plaintiffs.”

Upon service of the pleadings of the Respondents on the Appellants, the Appellants also claiming ownership of the land in dispute, filed their Amended Statement of Defence and Counter-Claim and sought against the Respondents as follows:
“(i) A DECLARATION that the Defendants/Counterclaimant are the owners of the large parcel of land called Odolawe or

Igedege in Okitipupa Local Government Area of Ondo State from time immemorial and for the said reasons are the people entitled to Customary Right of Occupancy on the land.
(ii) A perpetual injunction restraining the Plaintiffs/Defendants by Counter-claim their agents, servants, privies or any person claiming through them from entering or continue to enter the said land without the consent and authorization of the Defendants/Counter-claimants.
(iii) Damages for trespass.”

In their bid to establish their claims and in defence of the counter-claim of the Appellants, the Respondents called three witnesses and tendered some documentary evidence. Likewise, in defence of the claims of the Respondents and to establish their counter-claim, the Appellants fielded five witnesses and equally tendered some documentary evidence. The Respondents relied majorly on the document, an Agreement purportedly executed on the 26th of August, 1919, as the document which conferred title to the land in dispute on them. The said Agreement was purportedly made at Ikoya between the people of Idepe and Erinje communities before the then colonial Acting Resident of Ondo

Province. At the trial, the Respondents applied to tender the document in evidence but the admissibility of same was objected to by the Appellants on the ground that the document being a public document ought to have been but was not duly certified as required by the provisions of Sections 102 and 104 of the Evidence Act, 2011.

In its ruling delivered on the 4th of June, 2014, the trial Court overruled the objection of the Appellants and admitted the document in evidence as Exhibit 2. At the close of the cases for the parties, their respective learned Counsel filed, exchanged and adopted their written addresses in substantiation of their opposing positions in the matter. Subsequently, the trial Court in its final judgment delivered on the 12th of December, 2014, found that the Respondents proved their title to the land in dispute and therefore granted their claims as sought. However, the trial Court failed to consider and pronounce on the counter-claim of the Appellants, rather, the said counter-claim was struck out.

The Appellants, dissatisfied with both decisions of the trial Court, filed this appeal against them to this Court vide their notices of

appeal against the earlier ruling and the substantive judgment. The Amended Notice of Appeal against the ruling, dated and filed on the 22nd of March, 2017 contains the following sole ground of appeal:
“GROUNDS OF APPEAL:
i. The learned trial Judge erred in law when his Lordship held that the Agreement dated 26th August, 1919 is not a public document that required certification and admitted same in evidence as Exhibit 2.
PARTICULARS:
a. Exhibit 2 states that “both parties have asked the Resident to settle their differences”.
b. Exhibit 2 was purportedly made before the Resident, a Public officer of the then Colonial Government.
c. Exhibit 2, being a document forming the official acts or records of the official acts of a Public Officer in Nigeria is a public document by virtue of the provisions of Section 102, Evidence Act of 2011.
d. By virtue of the provisions of Section 89(e) & Section 90(c), Evidence Act of 2011 a certified true copy of a public document but no other secondary evidence thereof is admissible.
e. Exhibit 2 is not a certified true copy of the Agreement dated 26th August, 1919 and,

therefore, ought not to have been admitted in evidence.”

The Amended Notice of Appeal against the substantive judgment of the trial Court is also dated and was filed on the 22nd of March, 2017. The four grounds of appeal contained in the said Amended Notice of Appeal state verbatim thus:
“GROUNDS OF APPEAL:
i. The learned trial Judge erred in law when his Lordship held that the Agreement dated 26th August, 1919 which was admitted in evidence as Exhibit 2, being more than twenty years old, enjoyed the presumption under Section 155, Evidence Act, 2011.
PARTICULARS:
a. The presumption created under Section 155, Evidence Act, 2011 is only as to the due execution, attestation or signing of the person who is purported to have signed the document.
b. The presumption is not in favour of the correctness of the contents of such documents.
c. Exhibit 2 was not duly authenticated as the same was not duly signed by the parties named therein.
d. The presumption under Section 155, Evidence Act, 2011 does not avail the Respondents merely because the document is purportedly twenty years old or more.
ii. The learned trial

Judge erred in law by placing reliance on the Agreement dated 26th August, 1919 which was admitted in evidence as Exhibit 2.
PARTICULARS:
a. Exhibit 2 is not an instrument within the meaning of Section 2, Lands Instruments Registration Law, Cap 74, Laws of Ondo State, 2006.
b. Exhibit 2 was not registered as required under Section 16, Lands Instruments Registration Law, Cap 74, Laws of Ondo State 2006.
c. Exhibit 2 was not stamped.
iii. The learned trial Judge erred in law when his Lordship held that the Respondents had proved their title to the land and then proceeded to grant the reliefs sought.
PARTICULARS:
a. The main relief claimed by the Respondents was for a declaration.
b. In granting the declaration claimed by the Respondents, the learned trial Judge failed to take into consideration the applicable principles.
c. The learned trial Judge held that the Respondents’ root of title to the land in dispute as adduced in evidence is Exhibit 2.
d. Exhibit 2 merely refers to ODULAWE but does not state the identity of the land in dispute.
e. Evidence before the honourable Court shows that there are two

Odulawes, namely, Odulawe Igedege and Odulawe Okerugbo Erinje.
f. Exhibit 2 does not make any specific reference to either of the two Odulawes.
g. There is no nexus between Exhibit 2 and the land in dispute.
iv. The learned trial Judge erred in law when his Lordship held thus:
“… It is trite that counter claim is a separate and independent action in its own right. Therefore its fate does not depend on the outcome of the Claimant’s case. But having granted the declaratory and injunctive reliefs sought by the Claimants in respect of the same piece of land, I hold that it will be out of place for the Court to consider the counter claim of the Defendants.”
and made an order striking out the Appellants’ counter-claim.
PARTICULARS:
a. The learned trial Judge failed to consider the Appellants’ counter claim.
b. The Appellants pleaded and led credible evidence to establish their ownership of the land in dispute based on traditional history, long possession and acts of possession.”

In obedience to the relevant provisions of the Rules of this Court, briefs of argument were filed and

exchanged by the learned Counsel for the respective parties in support of their varied stances in the appeal. The Appellants’ Senior Counsel, Uchechukwu V. Obi, SAN of Alliance Law Firm settled the briefs of the Appellants. The main Appellants’ Brief of Argument dated 3rd of May, 2017 was filed on the 4th of May, 2017. The three issues donated for determination in the brief read verbatim thus:
“ISSUE ONE (i):-
WHETHER Exhibit 2 is a public document within the meaning of Section 102 of the Evidence Act, 2011 and the requirements of proper certification under Section 104 of the Evidence Act were met in admitting same in evidence? (Distilled from the sole Ground in Amended Notice of Appeal against the Ruling of 4th June, 2014).
ISSUE TWO (ii):-
WHETHER having regard to the state of the pleadings and evidence led at the trial the learned trial Judge was right to have found in favour of the Respondents, and to have granted the declaration and injunction sought? (Distilled from Grounds (i), (ii) and (iii) of the Amended Notice of Appeal against the judgment of 19th December, 2014).
ISSUE THREE (iii):-
WHETHER the

Appellants, by preponderance of evidence led at the trial, have not established a better title to the land in dispute to entitle them to their counter-claim? (Distilled from Ground (iv) of the Amended Notice of Appeal against the judgment of 19th December, 2014).”

The Respondents’ Counsel, Chief O. J. Okorisa of the law firm of Okorisa Orimisan & Associates settled the Respondents’ brief. In the Respondents’ Amended Brief of Argument dated and filed on the 24th of June, 2020 but deemed properly filed on the 13th of July, 2020, the three issues contained in the Appellants’ Brief of Argument were adopted by the Respondents for the determination of the appeal.

In response to the Respondents’ Amended Brief of Argument, the senior Counsel for the Appellants further filed the Appellants’ Amended Reply Brief dated the 7th of July, 2020, filed on the 8th of July, 2020 but deemed properly filed on the 13th of July, 2020.

On the 13th of July, 2020 when this appeal was heard by this Court, Mr. Theophilus Ochonogor, Counsel for the Appellants adopted and relied on the two briefs filed for the Appellants in

urging upon this Court to allow the appeal and reverse the two decisions of the trial Court being appealed against herein.

Chief O. J. Okorisa the Respondents’ Counsel adopted the Respondents’ Amended Brief of Argument, urged upon this Court to dismiss the appeal, affirm the two decisions of the trial Court and award the costs of the appeal in favour of the Respondents to be paid by the Appellants. I have scrutinized the three issues crafted for determination by the Senior Counsel for the Appellants, adopted by the Respondents’ Counsel and found them apt for the resolution of the Appellants’ grouse about the two decisions of the trial Court under review. I shall therefore adopt and determine them hereunder seriatim.

ISSUE ONE
“WHETHER Exhibit 2 is a public document within the meaning of Section 102 of the Evidence Act, 2011 and the requirements of proper certification under Section 104 of the Evidence Act were met in admitting same in evidence? (Distilled from the sole Ground in Amended Notice of Appeal against the Ruling of 4th June, 2014).”

THE SUMMARY OF THE SUBMISSIONS OF THE APPELLANTS’ SENIOR

COUNSEL
According to the learned Senior Counsel, the contents of the purported 1919 Agreement, Exhibit 2 clearly show that the document forms the official acts or records of the official acts of the then Acting Resident of Ondo Province and is therefore a public document within the meaning of Section 102 Evidence Act, 2011.

By the provisions of Section 85 of the Evidence Act, 2011, the contents of documents may be proved either by primary or secondary evidence. Further, by the combined effect of the provisions of Section 89(e) and 90(c) of the Evidence Act, 2011, the only secondary evidence of a public document that is admissible in evidence is a certified true copy thereof. On the legal position, he referred to the cases of: (1) Ogboru v. Uduaghan (2011) 2 NLWR (Pt. 1282) p. 538 at p. 549 and (2) Araka v. Egbue (2003) 17 NWLR (Pt. 848) p. 1.

In the light of the evidence of the Respondents before the trial Court that the original of the said agreement could not be found, the only document that is admissible therefore in the situation is a certified true copy thereof and nothing else. To put it in other words, the 1919 Agreement being a public

document within the meaning of Section 102 of the Evidence Act, 2011, requires certification in accordance with the provisions of Section 104(1) & (2) of the Evidence Act, 2011. The foundation laid by the Respondents is that the original of the said document is in the custody of the Court of Appeal, Benin Division.

In the circumstance, the Respondents were allegedly supplied with the certified true copy by the Court of Appeal, Benin Division. This evidence has raised serious doubts regarding the genuineness of the document. A certified true copy is supposed to be true copy of the original. An officer of the Benin Division of the Court of Appeal cannot be the public officer having custody of a document which formed an official act or record of the official act of the then Acting Resident of Ondo Province. The 1919 Agreement was received by the Court of Appeal, Benin Division only by virtue of an earlier interlocutory appeal from the instant matter. The officer of the Court of Appeal, Benin Division is not a public officer having custody of the document and cannot therefore certify the document within the meaning of Section 104(1) of the Evidence Act,2011

Reference was further made to the cases of: (1) S. G. (Nig.) Ltd. v. Galmas Int’l Ltd. (2010) 4 NWLR (Pt. 1184) p. 361 at 362; (2) IBWA Ltd. v. Imano (Nig.) Ltd. (2001) 3 SC, p. 182 at 191 and (3) Ojengbede v. Esan (2001) 12 SC, (Pt. 11) p. 1 at 18.

Exhibit 2 being a public document within the meaning of Section 102 of the Evidence Act, 2011 and same, not having been certified as required under Section 104 of the Evidence Act, was wrongfully admitted in evidence. This Court was thus urged to expunge, exclude and discountenance the said Exhibit 2 from the evidence adduced by the Respondents before the trial Court.

THE SUMMARY OF THE SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
It was reiterated by the Counsel that Exhibit 2 is an agreement made at Ikoya on 26th August, 1919 between the people of Erinje, represented by Kaye, Oloja of Erinje and the Erinje people living at Odolawe represented by Lumeko their Chief on the one part and the people of Idepe represented by Baale Kinubi on the other part. The Acting Resident was never a party to the agreement, he only witnessed the settlement of the dispute between the two communities, thus the

agreement was merely signed before him and nothing more.

Exhibit 2 is between two parties as shown in the first paragraph of the said agreement and the Acting Resident or government is not a party to the agreement. The fact that the Acting Resident witnessed the signing or execution of the agreement does not make the agreement a public document. Exhibit 2 does not form part of the official acts or records of a public officer like the Acting Resident. The action or step taken by the Acting Resident during the settlement and the execution of Exhibit 2 was unofficial. Exhibit 2 is not a public document envisaged by Section 102 of the Evidence Act and being a private document does not require certification under Section 104 of the Evidence Act. Proper foundation under Section 89(c) and 90(a) of the Evidence Act was laid by PW3 to enable him tender the copy of the original without any need for certification.

What is more, the certifications on the face of Exhibit 2 from both the High Court, Okitipupa and the Court of Appeal Benin Division are not for the purpose of admissibility but to show that the original was transmitted from the trial Court and received by

Court of Appeal.
It was conclusively urged upon this Court to resolve this issue against the Appellants.

RESOLUTION OF THE ISSUE ONE
I have read very carefully the entire submissions of the senior Counsel for the Appellants and those of the Counsel for the Respondents on this issue. I do not have any difficulty in holding that, “ex facie” Exhibit 2, a three-page document is not the true copy of any original document.
For the copy of an original of a document is the exact run off, a true reproduction, a photographic copy of the writing, print or graphic work of the original document. A visual examination of Exhibit 2 shows that it is a typed document which does not carry the signatures and marks of the persons who had purportedly subscribed to it. I am of the view and it is indeed commonsensical that where a document which ought to be signed or marked, as the case may be, is not so signed or marked, the authenticity of the document is in doubt. For a document which is not signed or marked has no origin in terms of its maker or makers. Thus such an unsigned or unmarked document is inadmissible in evidence and even if it was admitted in

evidence, the Court should not attach any probative value to it. In a similar scenario in the case of: Omega Bank (Nig.) Plc. v. O. B. C. Ltd. (2005) 8 NWLR (Pt. 926) p. 547 at p. 582, para. A, the Supreme Court per Tobi, J.S.C. (of blessed memory) very succinctly stated that:
“A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious. I hold that Exhibit P6 was wrongly admitted and given probative value.”
See also the cases of: (1) Attorney General, Abia State v. Agharanya (1999) 6 NWLR (Pt. 607) p. 362; (2) Nwancho v. Adam (2004) All FWLR (Pt. 225) p. 93 and (3) SLB Consortium Ltd. v. NNPC (2011) 4 SC (Pt. 1) p. 86 at p. 89.
In the instant matter, in view of the fact that the purported makers of Exhibit 2, that is, the three representatives of the three communities, the mediator, the Acting Resident of Ondo Province and the Witnesses, did not sign or mark the document, the trial Court ought not to have admitted it in evidence in the first instance or attach any probative value to it after it was admitted.

Having found

that Exhibit 2 is not an authentic document, it will thus not serve any purpose, rather, it will amount to a hypothetical and an academic exercise to continue with the consideration of the poser: whether Exhibit 2 was a public or private document and executed in due deference to the relevant provisions of the Evidence Act? This is because a Court including this Court is not permitted in law and indeed devoid of jurisdiction to go into and make pronouncements on hypothetical questions or issues. See the cases of: (1) Ndulue v. Ibezim (2002) 12 NWLR (Pt. 780) p. 139; (2) Ada v. State (2008) 13 NWLR (Pt. 1103) p. 149 and (3) Elano Investments Ltd. v. Ejor & Ors. (2017) LPELR-43059 (CA). Sequel to the foregoing elucidation, I hold that Exhibit 2 has no legal efficacy, it is worthless, has no probative value, was wrongly admitted in evidence and improperly made use of by the trial Court.

It follows that this issue succeeds and is accordingly resolved in favour of the Appellants and against the Respondents.

ISSUE TWO
“WHETHER having regard to the state of the pleadings and evidence led at the trial the learned trial Judge was right to have

found in favour of the Respondents, and to have granted the declaration and injunction sought? (Distilled from Grounds (i), (ii) and (iii) of the Amended Notice of Appeal against the judgment of 19th December, 2014).”

THE SUMMARY OF THE SUBMISSIONS OF THE APPELLANTS’ COUNSEL
Learned Senior Counsel submitted that, the main relief sought by the Respondents at the trial Court is a declaration. The principles that govern the grant of a declaratory relief are now well settled in a plethora of judicial authorities.

A declaratory relief is an equitable relief sought from the Court and is essentially an equitable relief in which the Plaintiff prays the Court in exercise of its discretionary jurisdiction to pronounce or declare an existing state of affairs in law in his favour as may be discernable from the averments in the statement of claim. Reference was made to the case of: Dantata v. Mohammed (2000) 5 SC p. 1 at p. 26. Hence, though the Rules of Court and Evidence relieve a party of the need to prove what is admitted, where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to satisfy the

Court by evidence, not by admission in the pleading of the Defendant, that he is entitled to the declaration. Reliance was placed on the case of: Vincent Bello v. Magnus Eweka (1981) 1 SC, p. 101.

In other words, in a case for declaration of title where the onus of proof is clearly on the Plaintiff, he needs to lead strong and positive evidence to establish his case for such a declaration.
A declaratory judgment requires much discretion and since discretion is part of equity, it must be given judiciously and judicially having regard to the facts and equity of the case. Reliance was placed on the cases of: (1) Sorungbe v. Omotunwase (1988) 3 NSCC (Vol. 19) p. 252 at p. 262; (2) Owodunni v. CCC (2000) 6 SC, (Pt. 111) p. 60 at p. 93 and (3) Fasesin v. Oyerinde (1997) 11 NWLR (Pt. 530) p. 555.

The law is also trite that, though an appellate Court would not generally question the exercise of discretion of the trial Judge merely because it would have exercised the discretion in a different way if it had been in the position of the trial Court, it would do so if as a result of such exercise injustice had been meted out to the adverse party or that the

trial Judge gave no weight or gave insufficient weight to important considerations. Reference was made to the case of: Owodunni v. CCC (2000) 6 SC, (Pt. 111) p. 60 at p. 93.

The settled legal position that there are five ways of proving title to land was restated by Senior Counsel and he relied in this wise on the ‘locus classicus’ case of: Idundun v. Okumagba (1976) NSCC (Vol. 10) p. 445 at pgs. 453-454. The five ways are: (i) By traditional evidence; (ii) By production of documents of title; (iii) By acts of the person claiming title; (iv) By acts of long possession and (v) By possession of connected or adjacent land. In the instant case, the Respondents as Plaintiffs relied on the method of production of document of title.

Where a party’s root of title is pleaded, same has to be established first, otherwise, it will be unnecessary to consider acts of possession, for such acts of possession then become no longer acts of possession but acts of trespass. He referred to the cases of: (1) Dabo v. Abdullahi (2005) 5 MJSC p. 57 at p. 82 and (2) Registered Trustees, Diocese of Aba v. Akume (2002) 1 SC, p. 19 at p. 28.

Where a

Plaintiff, as in the instant case, seeks to establish title to land in dispute by the production of title document, the Court shall enquire whether such title document is genuine and valid. On this legal position, reference was made to the case of: Romaine v. Romaine (Supra). However, in the instant case, the Court below did not make any such enquiry. In Senior Counsel’s view, Exhibit 2 is not genuine and it is invalid. Moreover, it is not an instrument within the meaning of Section 2 of the Land Instruments Registration Law, Cap 74, Laws of Ondo State, 2006. Exhibit 2 was purportedly made before the Acting Resident of Ondo Province. The name of the Resident is not stated thereon and it does not carry the Resident’s signature or official stamp. Thus the document was neither duly authenticated nor registered as required under Section 16 of the Land Instruments Registration Law.

The law is that an unsigned document is worthless and void and, therefore, no weight ought to be attached to such document. He further referred to the cases of: (1) A. G. Kwara State v. Chief Joshua Alao (2000) 9 NWLR (Pt. 672) p. 84 at p. 104 and (2)

Nigeria Telecommunication Plc. v. Rockonoh Property Company Ltd. (1995) 2 NWLR (Pt. 378) p. 473 at 512-513.

The Respondents as Plaintiffs at the trial Court did not state that they are the founders or descendants of the founders of the land in dispute. Their case is that the land in dispute became theirs by virtue of Exhibit 2.

One of the applicable principles in an action for declaration of title to land is that the onus is clearly on the Plaintiff to lead strong and positive evidence to establish his case for such a declaration. Exhibit 2 is not such strong and positive evidence to establish the declaration sought in the instant case.

In summation, Counsel restated that in view of the provisions of Sections 2 and 16 of the Land Instruments Registration Law, Exhibit 2 was not validly pleaded by the Respondents. Exhibits 2 in the instant case falls below the standard of proof required in a case of declaration of title to land. Therefore, the declaration sought by the Respondents ought not to have been granted by the trial Court. Hence, on the authority of: McFoy v. U.A.C. Ltd. (1962) AC p. 152 at p. 160, the order of injunction sought by the Respondents

against the Appellants being ancillary to the declaration, same also ought to have failed. This Court was thus urged to resolve issue two in favour of the Appellants.

THE SUMMARY OF THE SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The legal principle that behoves a Claimant to prove his case with preponderance of evidence in order to secure a declaratory judgment was restated by the learned Counsel, on the authority of: Olly v. Tunji (2012) ALL FWLR (Pt. 654) p. 39 at p.67, paras. E-G. It is also trite that for a claimant in an action for declaration of title to land like in this case to succeed, he could prove his ownership of the land or title therein through any of the following five ways:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated in the sense that their due execution must be prove unless they are documents twenty years or more years old.
(c) By acts of selling, leasing, renting out of part of the land or farm on it or a portion of it.
(d) By acts of long possession and enjoyment of the land.
(e) By proof of possession of connected or/and adjacent land.
In this wise, reliance

was placed on the cases of: (1) Elabanjo v. Ajigbotesho (2013) ALL FWLR (Pt. 701) p. 1594 at p 1604, paras. B-E and (2) Kano v. Maikaji (2013) ALL FWLR (Pt. 623) p. 1850 at pgs. 1868-1869, paras. F-B.

The claimant can prove his ownership by proving one or more of the above five ways of proving ownership of land. In this case, the Respondents hinged their title to the land in dispute on Exhibit 2 and acts of selling, leasing, renting out part of the land as well as farming on the land. The Respondents pleaded facts and led evidence through PW1, PW2 and PW3 to prove their ownership of the land. Apart from Exhibit 2, the Respondents also pleaded and led evidence to show that their family had been in possession and exercised various acts of ownership over the land in dispute since 1919 and immediately preceding the execution of Exhibit 2.

The Respondents having established their title to the land through Exhibit 2 and acts of leasing and farming in conjunction with long possession, the findings of the learned trial Court stand on good legal footing. Exhibit 2 is not a registrable instrument under Section 2 of the Land Instruments Registration Law. Apart

from the fact that Exhibit 2 was made prior to the coming into force of the Land Instruments Registration Law, the document does not fall under any of the heads mentioned in Section 2 of the Land Instruments Registration Law. Exhibit 2 is nothing more than a document evidencing native law transfer or agreement of release under native law which does not require registration. Reference was made on this stance to the cases of:
(1) Djukpan v. Orovuyovbe (1967) NMLR p. 287; (2) Kano v. Oyelakin (1993) 1 NSCC p. 373 and (3) Adeyemo v. Ida (1998) 4 NWLR (Pt. 546) p. 504.

Exhibit 2 was duly executed and signed by the Acting Resident and the parties to the document. Moreover, the word ‘signature’ has been defined to mean, a person’s name or mark written by the person or at the person’s direction or any name, mark or writing used with the intention of authenticating a document. On this position, Counsel referred to the cases of: (1) Akinsanya v. Federal Mortgage Finance Limited (2010) LPELP-3687 (CA) and (2) Osadare v. Liquidator Nig. Paper Mills Ltd. (2012) ALL FWLR (Pt. 652) p. 1784 at p. 1807, paras. A-C.

The last page of

Exhibit 2 shows that the parties set their hand and marks indicated by ‘X’ on behalf of their people and themselves. What is more, there is a notation ‘SGD’ on the portion for the Acting Resident and witnesses to the document which means the document is signed. Counsel further opined that, once a document is relevant and has been proved to be relevant, notwithstanding that it is signed or unsigned, it shall be binding on the Court that receives same in evidence.

There is no doubt that Exhibit 2 is relevant in this matter. Moreover, the issue of signing or otherwise of Exhibit 2 was not raised by the Appellants at the time of tendering it at the trial Court and same is being raised for the first time in this appeal without the leave of this Court. Hence, the argument must be discountenanced by this Court. Counsel urged upon this Court to resolve this issue against the Appellants.

RESOLUTION OF ISSUE TWO
The law is trite that, where there is a dispute as to land and the real issue is one of title, then, title must be proved. Where therefore title to a parcel of land is in dispute, the law is established that proof of

ownership of the land can be established by any of the following five methods: (a) by traditional history; (b) by production of document of title, which are duly authenticated; (c) by acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it; (d) by acts of long possession and enjoyment of the land and (e) by proof of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. To mention just a few of the plethora of judicial authorities on this age-long legal principle, are the cases of: (1) Idundun v. Okumagba (1976) 9-10 SC p. 227; (2) Nkado v. Obiano (1997) 5 NWLR (Pt. 503) p. 31; (3) Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) p. 628; (4) Madu v. Madu (2008) 6 NWLR (Pt. 1083) p. 296; (5) Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) p. 328 and (6) Atanda v. Iliasu (Supra).

It is also well settled in law that, in claims for declaratory reliefs, including land matters, the Plaintiff is strictly required to plead and prove his claims on the evidence adduced by him without relying on the evidence

called by the Defendant, even where the evidence of the latter supports his claim. This statement of the law has long been laid down by the Apex Court and followed by this Court in innumerable judicial authorities. In the case of: Bello v. Eweka (1981) LPELR- 765, the Supreme Court per Obaseki, J.S.C. (of blessed memory) captured the legal position as follows:
“It is true as was contended before us by the Appellant’s Counsel that the Rules of Court and Evidence relieve a party of the need to prove what is admitted, but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the Defendant that he is entitled. The necessity for this arises from the fact that the Court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu 2 WACA 336 at 337. In that case, i.e. Kodilinye v. Mbanefo Odu … Webber, C.J., Sierra Leone, delivering the

judgment of the Court said: “The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title.” See also Akinola & Ors. v. Oluwo & 2 Ors. (1962) WNLR 135.”
See further the cases of: (1) Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) p. 361; (2) Addah & Ors. v. Ubandawaki (2015) LPELR–24266 (SC); (3) Emenike v. P.D.P. (2012) LPELR- 7802 (SC) at 27 D-G and (4) Akinbade & Anor. v. Babatunde & Ors. (2017) LPELR-43463 (SC).
From the above stated positions of the law, the legal burden on the Respondents herein to adduce cogent and credible evidence to prove the case set up in his pleadings is therefore very heavy, exceeding the general evidential burden of proof in civil cases on a person who asserts the affirmative under Sections 135(1) to 137 of the Evidence Act, 2011. Sections 135 (1), 136 and 137 provide as follows:
“135(1): Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
136: The burden of proof in a suit

or proceeding lies on that person who would fail if no evidence at all were given on either side.
137(1): In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”
By the above provisions therefore, it is the requirement of the law that, he who asserts a fact must prove the fact. Hence, in all civil matters, generally, proof rests squarely on the person who approaches the Court seeking that his legal right which he claims from another should be restored to him. Although the burden of proof is very heavy on the plaintiff in declaratory claims, including land matters and others, the standard of proof is still on the preponderance of the evidence adduced by the parties in the particular action. In the instant appeal, it is quite glaring that the Respondents have employed the second method of proof, that is, production of document of title to establish their title to the land in dispute.

The Further Amended Statement of Claim of the

Respondents is contained in pages 22 to 25 of the Record of Appeal. I hereunder reproduce verbatim the following very relevant and important paragraphs 5, 6, 7, 10, 11, 13, 14, 18 and 19 thereof thus:
“5. That in 1917 a dispute arose between the two communities (Odolawe) under Erinje and Araromi (represented by OGUNYO) under Idepe during which Erinje people shot dead two members of Araromi-Lisa family and drove Ogunyo from the Erinje side of AHAKO River.
6. The Resident of Ondo province settled the dispute on the 26th of August, 1919 when it was decided/agreed that since Erinje people have driven Ogunyo from the Erinje side of AHAKO River, so according to an earlier agreement of 1917, the Erinje people using Odolawe (now known as Igedege) must leave the Idepe side of AHAKO River.
7. The Resident of Ondo province further decided and it was agreed that Erinje people who drove OGUNYO from Erinje side of AHAKO River must compensate the ERINJE people who were removed from Odolawe (Ilawe) on Idepe side of AHAKO River from the land which Erinje Odolawe people seized from Ogunyo and his family on the Erinje side of AHAKO River. The

plaintiffs’ family as a result of the 1919 Agreement has been taken over and occupied by the defendants’ family till today.
10. Since the above agreement, Ogunyo Adehin of Araromi-Lisa in Idepe had been in occupation of the Odolawe land having abandoned their title to their land on the agreement, though life tenancy was granted to BAALE (Oloja) Akinnubi as a token of gratitude for the help he rendered to the OGUNYO Adehin family during the quarrel with Erinje people.
11. BAALE Akinnubi who later became Jegun of Idepe used the land along side with the plaintiff’s family. Plaintiffs put other tenants on the land and they also farmed on the land, allowed a school to be built on the land. The plaintiffs built market there too. Akinnubi also put tenants on the land.
13. The entire land shown on the defendants’ plan No. AAW/OF/5B/82 drawn by a licensed surveyor Akin A. A. Williams on 5/11/82 is in dispute in this case excluding that portion marked in dispute between the defendants and Amos Okunrinpo being the land the said 1919 Agreement gave to Ogunyo Adehin family. Between 1919 and 1975 when the plaintiffs brought their first

action which was struck out on 22/10/84, the plaintiffs had been in peaceful possession of the entire land in dispute, until one Chief Okunrinpo Olowobusoye intervened in 1958 as stated in paragraph 16 below.
14. The plaintiffs will rely on the 1919 settlement/Agreement to raise estopped by conduct/agreement, other equitable defenses such as larches/acquiescence such as Limitation Law will also be raised by the plaintiffs to estop the defendant from denying, the title to the land in dispute and to restrain them from trespassing or further trespassing on the land.
18. After the 1919 Agreement the plaintiffs exercised numerous acts of ownership and possession openly without force or by Agreement with anybody or family by farming on the land, by putting tenants on the land, by giving permission to people to farm on the land, to cut timber, to build a school, an R.C.M. Church e.t.c.
19. When Akinnubi died the plaintiffs took over the land since his tenancy was limited to his life time.”

It is crystal clear, from the above reproduced paragraphs of the Respondents’ pleadings and evidence adduced in support thereof, that the

Respondents had employed the method of production of document of title, to prove their alleged title to the land in dispute. In particular in this case, the Respondents relied on the agreement contained in Exhibit 2.

The law is trite that production of title documents alone is not enough to prove title to land, rather, a claimant must further trace the root of his title to the person whose ownership of the land has been established. On this well established legal position, the Apex Court per Ogundare, J.S.C. (of blessed memory) in the case of: Lawson & Anor. v. Ajibulu & Ors. (1997) 6 NWLR (Pt. 507) p. 14, had the following to say:
“Production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claims; he must go further to trace the root of his title to one whose ownership of the land has been established.”
In the case of: Romaine v. Romaine (1992) 4 NWLR (Pt. 238) p. 650, the Supreme Court per Nnaemeka-Agu, J.S.C. (of blessed memory) held that:
“One of the recognised ways of proving title to land is by production of a valid instrument of grant. See

Idundun v. Okumagba (1976) 9-10 SC 227; Piaro v. Tenalo (1976) 12 S.C. 31, p. 37; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) p. 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including: (i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the authority and capacity to make the grant; (iv) whether the grantor had in fact what he purported to grant; and (v) whether it has the effect claimed by the holder of the instrument.”
See also the cases of: (1) Dabo v. Abdullahi (2005) LPELR-903 (SC); (2) Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) p. 313 at p. 329; (3) Agboola v UBA Plc. & Ors. (2011) LPELR-9353 (SC) and (4) Arije v. Arije (2011) 13 NWLR (Pt. 1264) p. 265.

Consequent upon my line of reasoning and the conclusion reached by me under

issue one above, it is crystal clear that Exhibit 2 relied upon by the Respondents is invalid it not having been duly executed. It is a valueless document, of no assistance to and incapable of conferring any title in the land in dispute on the Respondent.

Although the Respondents had stated that they equally pleaded long possession and acts of ownership by leasing even before the purported execution of Exhibit 2, they failed to establish the said claims with concrete and satisfactory evidence. Their root of title in that regard was not proved and they did not field any of their purported tenants as witnesses to substantiate their claim. What is more, the trial Court clearly found in the wise, that the Respondents did not rely on traditional history/evidence as the method of proving their title to the land in dispute and thereby found for them based on their reliance on the purported title document Exhibit 2. That decision is subsisting same not have been appealed against by the Respondents via a cross appeal or a Respondent’s notice.

It follows thence that the instant issue is also a success and accordingly resolved in favour of the Appellants

and against the Respondents.
ISSUE THREE
“WHETHER the Appellants, by preponderance of evidence led at the trial, have not established a better title to the land in dispute to entitle them to their counter-claim? (Distilled from Ground (iv) of the Amended Notice of Appeal against the judgment of 19th December, 2014).”

THE SUMMARY OF THE SUBMISSIONS OF THE APPELLANTS’ COUNSEL
On the counter claim of the Appellants, Senior Counsel contended that, the main relief sought by the Appellants as per their Amended Statement of Defence and Counter-Claim is also a declaration. A declaration is essentially an equitable relief in which the Plaintiff prays the Court in exercise of its discretionary jurisdiction to pronounce or declare an existing state of affairs in law in his favour as may be discernable from the averments in the statement of claim or as in the instant case, a counter-claim. He referred to the cases of: (1) Dantata v. Mohammed (Supra); (2) Spring Bank Plc. v. Adekunle (Supra) and (3) Sorungbe v. Omotunwase (Supra). The law is that in a case for declaration of title where the onus is clearly on the Plaintiff he needs to

lead strong and positive evidence to establish his case for the declaration.

The case of the Appellants is that about 600 years ago, the people of Odolawe, under their great ancestor Kenbule, migrated from a place called Alumo, settled briefly at Erinje before proceeding across the Ahako River to the land in dispute where they finally settled and have remained ever since. That the 2nd Appellant’s father who was born in 1911 was the seventh generation on the land. That Kenbule fathered Akinmulero, Akinmulero fathered Medahunsi, Medahunsi fathered Urehan, Urehan fathered Akintoye, Akintoye fathered Orisamugbehin who is the biological grandfather of the 2nd Appellant. That the said land Odolawe/Igedege is bounded by Ahako River, Akeun River and Abusoro land. That since the time of their ancestors the Appellants’ family had always planted crops such as coconuts, kolanuts, palm trees, etc and have the shrines of, Olikan, Orisara, Ekugbage, Ojumo and Esu on the land. That the graves of their forefathers are also on the land.

That since they settled on the said land, they have never shared any common boundaries with the Respondents but with the

Abusoro people. The Appellants pleaded and led credible evidence to establish their ownership of the land in dispute based on traditional history, long possession and acts of possession, but the learned trial Judge did not do as much as to consider the Appellants’ counter-claim.

Senior Counsel proposed that the Appellants, by the preponderance of the evidence led at the trial, have established a better title to the land in dispute to entitle them to their counter-claim. The evidence led in support of the Appellants’ case is based on traditional history and is admissible, relevant and credible. On the contrary, the case of the Respondents based solely on the purported 1919 Agreement, Exhibit 2, had collapsed, as the genuineness and validity of the document is doubtful. He therefore urged upon this Court to resolve this issue in favour of the Appellants and consequentially grant the counter claim of the Appellants.

THE SUMMARY OF THE SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
It was conceded by the learned Counsel that a counter-claim is for all intents and purposes, a separate and independent action in its own right. However, where

common questions determinative of a claim or counter-claim arise in a case, the trial Court is not expected to consider the same questions separately in relation to the counter-claim as rightly done in this case by the trial Judge. In the instant case, the trial Court had determined in the main claim of the Respondents the question of ownership of the land in dispute which was the same issue also raised in the counter-claim of the Appellants. It was thus proper for the trial Judge to hold that it was needless for him to consider the issue under the counter-claim. He referred to the cases of: (1) N.R.I. Ltd. v. Oranusi (2011) ALL FWLR (Pt. 577) p. 760 at p. 775, paras. A-B and (2) Aderounmu v. Olowu (2000) 2 SCNJ p. 180.

Having granted the Respondents’ declaratory reliefs on the same subject-matter, that is, ownership of the land at Odolawe/Igedege, the consideration of the same relief in the Appellants’ counter-claim became an academic exercise. Moreover, from the evidence before the Court, the Appellants had failed to establish a better title to the land in dispute to entitle them to the reliefs in their counter-claim.

The learned Counsel

advocated the resolution of this issue against the Appellants.

RESOLUTION OF ISSUE THREE
There is no question, the parties indeed are “ad idem”, that the Appellants’ counter-claim enjoys the same status as the claim of the Respondents. For a counter-claim is a cross-action, as it is instituted by a defendant as a cross-action alongside the action of the plaintiff. In other words, a counter-claim is a claim by the defendant against the plaintiff in the same proceedings. A counter-claim therefore, for all purposes for which justice requires, is to be treated as an independent action as it has a life of its own. It thus legally behoves a trial Court to separately consider and pronounce on the issues raised for determination in a counter-claim, one way or the other. This well established position of the law was again restated by the Apex Court in the case of:Oroja & Ors. v. Adeniyi & Ors. (2017) LPELR-41985 as follows:
“A counter claim is always considered as an independent, separate and distinct claim which a trial Court must always consider. A trial Court confronted in a suit with both the main and counter claims,

must give separate judgment on each of the claims as each of such claim is independent of one another in this instant matter.”

What is more, a trial Court has a mandatory and legally bounden duty to consider and make pronouncements upon all issues raised by the parties for its determination and not to confine itself to issues which it considers to dispense of the case, as had been erroneously done by the trial Court in the instant case. Indeed, failure to decide all issues properly raised before a Court amounts to an abdication of its statutory duty by the Court and sometimes also a denial of fair hearing to the parties before it. What is more, the due consideration of all issues submitted by parties to a lower Court is to enable the Court exercising appellate jurisdiction to exercise its powers to properly determine the issues. See the cases of: (1) Ito & Ors. v. Ekpe & Ors. (2000) 3 NWLR (Pt. 650) p. 678; (2) Brawal Shipping (Nig.) Ltd. v. Onwadike Co. Ltd. (2000) 6 SCNJ p. 508 at p. 522; (3) Adah v. NYSC (2004) 13 NWLR (Pt. 891) p. 639 at pgs. 649 to 650 and (4) Samba Petroleum Ltd. v. U.B.A. Plc. (2010) 5-7 SC (Pt. 11) p. 22.

Albeit

where a trial Court failed to consider or pronounce on an issue placed before it, it may not be necessary for this Court, as in the instant matter, to remit the issue to the trial Court for consideration and determination, this Court under its general powers under the provisions of Section 15 of the Court of Appeal Act, 2004 and Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2016, will determine the issue not considered or pronounced upon by the trial Court. Section 15 of the Court of Appeal Act (Supra) and Order 4 Rules 3 and 4 of the Court of Appeal Rules (Supra) respectively provide as follows:
“15. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or taken, and generally shall have full jurisdiction over the whole proceedings as if

the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.
Order 4 –
3. The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other orders(s) as the case may require, including any order as to Costs.
4. The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that

Court is not specified in such a notice; and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”

I will therefore now proceed to consider and determine the counter claim of the Appellants.
To establish their counter-claim therefore, the Appellants are equally entitled to a choice of any of the five methods of proving title or ownership of land, as already reiterated hereinbefore. It is evident from the pleadings and supporting evidence that the Appellants’ counter-claim is based on traditional history. The law is settled that this mode just like the others must be proved with cogent and satisfactory evidence. See the cases of: (1) Onibudo v. Akibu (1982) 7 SC p. 60; (2) Efetiroroje II v. Okpalefe II (1991) 5 NWLR (Pt. 193) p. 517; (3) Ohiaeri & Anor. v. Akabeze & Ors. (1992) LPELR-2360 (SC); (4) Awoyoolu & Anor. v. Aro & Anor. (2006) 4 NWLR (Pt. 971) p. 481 and (5) Ayanwale v. Odusami (2011) LPELR-8143 (SC).

It is pertinent to state right away that from the convergent evidence of the parties, the

identity of the land in dispute is known to both parties and therefore not in dispute.
The relevant facts of the case of the Appellants are contained in Paragraphs 3, 4, 5, 6, 7, 8(i), (ii), (iii), (vi), (x), (xi) and (xii) of the Appellants’ Amended Statement of Defence and Counter-Claim. For good understanding and easy referencing, I hereunder reproduce the said Paragraphs verbatim as follows:
“3. In further denial of paragraphs 3 and 4 of the statement of claim the Defendants aver that the area the Plaintiffs referred to as Idepe side of Ahako River has from the last 500 years ago or there about been known as Odolawe.
(i) In further reply to paragraph 3 of the statement of claim, the defendants deny vehemently all the averments therein and explain further that the Defendants have been on the land over 600 years ago.
(ii) The Defendants aver further that the 2nd Defendant who was born in 1911 (96 years old) is the 7th generation on the land. Kenbule begart Akinmulero, Akinmulero begart Madahunsi, Madahunsi begart Urehan, Urehan begart Akintoye, Akintoye begart Orisamugbehin who is the biological father of the 2nd Defendant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(iii) The Defendants aver further that except Kenbule all past-fathers of the 2nd Defendants mentioned above were born on the land in dispute. There is no place called Idepe side of Ahako River in the area in dispute.
4. The Defendants state that the people of Odolawe, about 600 years ago, under their great ancestor Kenbule, migrate from a place called Alumo, settled briefly at Erinje before proceeding across the Ahako River where they eventually settled and have remained till today.
5. Further, the Defendants state that since they have settled on the said Odolawe side of Ahako River, they have never shared any common boundaries with the Plaintiff but rather with the Abusoro people. The Defendants shall at the trial rely on Plan No. AAW/OD/5B/82 drawn by a license Surveyor Akin A. A. Williams.
6. The Defendants states further that the said land Odolawe (Igedege) is bounded at 1st side by Ahako River, at 2nd side by Akeun River, 3rd side by Abusoro land and at the 4th side by Ahako River.
7. The Defendant avers further that on the land from time past were crops, like coconut, kolanut, palm trees, fixtures and antiquities on the land. The

following shrines could also be found on the land:
i. Olikan shrine
ii. Orisara shrine
iii. Ekugbage shrine
iv. Ojumo shrine
v. Esu shrine etc.
While the graves of the Defendants forefathers could be found on the land.
8. In reply to paragraphs 4, 5, 6, 7 and 8 of the statement of claim the Defendants say that there is no iota of truth in the averments contained in these paragraphs of the statement of claim.
i. The Defendants admit that Ogunyo and Adehin were members of Araromi Lisa but they never farmed at Igedege (Odolawe) which is the land in dispute throughout their life time.
ii. The Defendants explain further that Lumeko has nothing to do with Odolawe in Erinje. Lumeko was an Ikoya man who founded and live at Lumeko camp along river Akeun in Ikoya where he died and was buried. Chief Lumeko could not have championed Odolawe course when there were many elders of Odolawe capable of leading Odolawe people.
iii. The Defendants say that there was no time a dispute arose between Araromi (represented by Ogunyo) and Odolawe people over Odolawe land.
vi. The Defendants say in reply to paragraph 6 of the

statement of claim that the Resident of Ondo province did not settle dispute and if he did, Odolawe (Igedege) people were not party to the settlement. Igedege or Odolawe which is the land of the Defendants was not the land in dispute between Ogunyo Adehin and Kuenomore.
x. The Defendant aver that Akinnubi was their in-law and with the permission of the Defendants Akinnubi settled on the land. Akinnubi married Orowole a daughter of Iwahan who was a member of Odolawe family. Akinnubi came to the land in dispute through the Defendant and not the Plaintiff.
xi. Roman Catholic Mission Church was established on the land by Chief Luwoye Akinboyewa who was member of Odolawe.
xii. The Defendants established the market on the land. In 1955 the Defendants seized the opportunity of Awolowo free primary education to establish the school on the land.”

The 1st Appellant and 2nd Appellant gave evidence as DW4 and DW1 respectively at trial. Their evidence is identical and demonstrates that they are both descendants of Kenbule, the original Settler/Founder of the land in dispute. DW1 is a descendant of Kenbule through his late father one Joseph

Orisamugbehin, who was in fact the original 2nd Defendant in the case at the trial Court and DW1 was substituted for him on his demise. DW4 is a great-grandson of the said original Founder of the land in dispute. The land was stated by DW1 and DW4 to have been founded about six hundred years ago by Kenbule who migrated from Alumo. The graves of the descendants of Kenbule who were born on the land are thereon. Also on the land are many shrines like Esu, Ojumo, Ekugbagbe, Orisara and Olikan shrines. The land is said to be bounded by Ahako River, Akeun River, Abusoro land and Ahako River on its four sides. DW5 gave evidence in support of the pleading that Abusoro land is one of the boundaries of the land in dispute. DW5 is a grandson of the Founder of Abusoro land.

I have scrutinized the Record of Appeal and found that the unequivocal evidence adduced in proof of the traditional history of the ascendance of the Appellants to the land in dispute was not successfully challenged by the Respondents. Indeed as earlier on found by me in this judgment, the Respondents’ parallel claim of ownership of the land in dispute is hinged on a purported document which is

not signed, was not duly executed, invalid, of no probative value and incapable of conferring title on the Respondents. Consequent upon the evidence adduced by the Appellants as captured ”inter alia” above, I am of the firm view and hold that there is an unbroken devolution of the land in dispute on the Appellants as the descendants of Kenbule through Medahunsi Akinmulero, through Medahunsi Akinbehinje, through Urehan, through Akintoye, through Orisamugbehin, through Joseph Orisamugbehin. I find the evidence of the Appellants cogent and satisfactory.

The Appellants in their counter-claim also claimed: “Damages for trespass”. This is rather vague and non-specific. What is more, other than the evidence in proof of their ownership of the land in dispute, the Appellants they did not plead or adduce evidence in support of any acts of trespass by the Respondents which would ordinarily in law entitle the Appellants to general damages. They also did not specifically plead and prove any special damages that they might be entitled to.

The law is trite that, a plaintiff who claims damages for trespass as well as injunction regarding the

land in dispute, puts his title in issue. Such a plaintiff will succeed on proving that he has a better title to the land than the defendant, who although has not filed a counter-claim, is also claiming to be the owner of the land in dispute. Albeit, the tort of trespass is inextricably tied to possession, a person in possession of land even as a trespasser can still sue another person who thereafter comes upon the land. In other words, a person who has no title over a piece of land, but who is in exclusive possession, may successfully sue for trespass if any entry is made into the land without his consent- see the case of: Eneh v. Ozor (2016) 16 NWLR (Pt. 1533) p. 219.

The law is very settled that, in an action for special damages for trespass, there must be specific pleading of the special damages which must equally be proved by evidence clearly showing how the damages arise. For, facts averred in pleadings do not amount to evidence. Every item of special damage in the statement of claim must have clear evidence to support it. A person claiming special damages is therefore required to establish entitlement to that type of damages by credible evidence of

such a character as would suggest that he indeed is entitled to an award under that head. The Court cannot make its own individual assessment but must act strictly on specific evidence before it and which it accepts as establishing the amount to be awarded. See the cases of:
(1) Messrs Dumez (Nig.) Ltd. v. Ogboli (1972) 3 SC (Reprint) p. 188; (2) Osho & Anor. v. Foreign Finance Corporation & Anor. (1991) LPELR-2801 (SC); (3) Daniel Holdings Ltd. v. U.B.A. Plc. (2005) 13 NWLR (Pt. 943) p. 533 and (4) Eneh v. Ozor & Anor. (2016) LPELR-40830 (SC).

I therefore have difficulty in finding for the Appellants on the said leg of their claims.
In sum, issue three is equally resolved in favour of the Appellants save for the claim of damages for trespass.
Consequent upon the resolution of all the issues donated for resolution by the Appellants, save the matters of trespass and damages, in favour of the Appellants, it follows that, this appeal is hugely meritorious.
I accordingly allow the appeal and concomitantly set aside the two decisions of the trial Court delivered respectively on the 4th day of June, 2014 and 12th day of December,

2014, in this matter.

To forestall any ambiguity, it is hereby ordered that, the claim of the Respondents in Suit No. HOK/33/1991 is accordingly dismissed.

It is further ordered that, the Counter-Claim of the Appellants, save the claim of damages for trespass, is hereby granted in the following terms:
(i) A declaration that the Appellants are the owners of the large parcel of land called Odolawe or Igedege in Okitipupa Local Government Area of Ondo State from time immemorial and for the said reason are the people entitled to the Customary Right of Occupancy on the land.
(ii) A perpetual injunction restraining the Respondents, their agents, servants, privies or any person claiming through them from entering or continuing to enter the said land without the consent and authorization of the Appellants.
The Appellants and Respondents are further accordingly ordered to bear their respective costs for the prosecution and defence of this appeal.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I concur that the Appeal be allowed on all the issues formulated by the Appellants in this Appeal as decided by my learned brother, OYEBISI FOLAYEMI OMOLEYE, JCA

in the lead judgment.

Consequent upon the resolution of all the issues donated for resolution by the Appellants, save the matters of trespass and damages, in favour of the Appellants, it follows that, this Appeal is hugely meritorious.

I too allow the Appeal and concomitantly set aside the two decisions of the trial Court delivered respectively on the 4th day of June, 2014 and 12th day of December, 2014, in this matter.

The Appellants and Respondents are further accordingly ordered to bear their respective costs for the prosecution and defence of this Appeal.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, OYEBISI F. OMOLEYE, JCA. I agree with his reasoning and conclusions. I adopt same as mine. I have nothing useful to add save to say that I abide by the orders in the lead judgment.
Appeal is allowed.

Appearances:

THEOPHILUS OCHONOGOR For Appellant(s)

CHIEF O. J. OKORISA For Respondent(s)