AKINSOLA & ORS v. OGUNGBAYI & ORS (2021)

AKINSOLA & ORS v. OGUNGBAYI & ORS

(2021)LCN/15050(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, February 12, 2021

CA/IB/246/2016

RATIO

DUTY OF A CLAIMANT IN AN ACTION FOR DECLARATION OF TITLE TO LAND: FACTS TO ESTABLISH THE IDENTITY OF LAND

Now, the law is settled that, the first duty of a Plaintiff or Claimant in an action for declaration of title to land is to prove by credible evidence which establishes with certainty the identity of the land he claims. Such Claimant must therefore establish unequivocally, the location, size or area of the land. The identity of the land means the portion or area, size, location and possibly features by which that land can be recognized. These facts must be the primary issues to be clearly established by the pleadings and evidence. See Ayanwale v. Odusami (2011) 12 SCNJ 362, Ayuya v. Yonrin (2011) 10 NWLR (pt. 1254) 135; Iyaji v. Eyigebe (1987) 3 NWLR (pt. 61) 523; Dauda v. Iba (2007) 2 NWLR (pt. 1018) 321; and Adu v. Gbadamosi (2009) 6 NWLR (pt. 1136) 110. The requirement to establish the identity of the land in dispute is condition precedent to the success of the claim.
It should also be noted that, the need to lead evidence to establish the identity of the land in dispute will only arise if and only if the Defendant has contested the identity of the land in his Statement of Defence. Thus, where the Defendant disputes specifically, the area or location, the features, or size of the land, the identity of the land has become an issue to be tried. It therefore means that, where the identity of the land is not in issue, between the parties, no onus lies on the Plaintiff to prove the identity of the land, and such issue will not be for determination in the suit. See Gbadamosi v. Dairo (2007) 3 NWLR (pt. 1021) 282; Kyari v. Alkali & Ors (2001) 11 NWLR (pt. 724) and Ajisegiri & Ors v. Shodiya & Ors (2018) LPELR-44864 CA.PER HARUNA SIMON TSAMMANI, J.C.A.

DISTINCTION BETWEEN ADMISSIBILITY OF EVIDENCE (DOCUMENTS) AND THE PROBATIVE OR EVIDENTIAL VALUE TO ATTACH TO SUCH EVIDENCE OR DOCUMENT.

It is settled law that there is a distinction between admissibility of evidence (documents) and the probative or evidential value to attach to such evidence or document. Thus, a Court may admit a document or other piece of evidence but decline to accord it any evidential value, or give it little evidential value. When it comes to the documents tendered and admitted in evidence, the law is that, a trial Court is not permitted to and should not automatically act or rely on a piece of documentary evidence merely because it was admitted in evidence without subjecting it to the required testing, evaluation and assessment. While admissibility of any piece of evidence including documentary evidence depends on its relevancy, the evaluation and ascription of evidential weight or value depends on several factors. Thus, when it comes to documents, there must be evidence to link or connect such document to that aspect of the case for which the document was tendered. See Fawehinmi v NBA (No. 2) (1989) 2 NWLR (pt. 105) 558; Buraimoh v. Karimu (1999) 9 NWLR (pt. 1120) 246; 310; Buhari v. INEC & Ors (2008) 19 NWLR (pt. 1120) 246; Maku v. Al-Makura & Ors (2016) 5 NWLR (pt. 1505) 201 and Abubakar v. Chuks (2007) LPELR-52 (SC). For that purpose there is no distinction between a public document and any other document. That is why the Supreme Court, per Fabiyi, J.S.C. held in the case of Action Congress of Nigeria v. Sule Lamido & Ors (2012) LPELR-7825 (SC) as follows: “The other serious issue raised by the Appellant is in respect of Exhibit E-Z and 1-36 which are Independent National Electoral Commission’s Forms put in to substantiate various allegations of non-compliance with the Electoral Act, 2010 (as amended). The Exhibits were put in without any witness who testified in the open Court to demonstrate their purport and worth. The Appellant felt that since the documents were tendered, the trial Tribunal had a duty to consider them and not treat them as being document. The Respondents, on their own part maintained that since the contents of the documents were not demonstrated in Court, they remain dormant for all times as no oral evidence to explain their purpose was adduced. They cited a host of authorities in support. It is not in doubt that the stated Exhibits were not demonstrated in the open Court. They were the type of documents which this Court affirmed as rightly expunged by the Court of Appeal in Buhari v. I.N.EC. (2008) 19 NWLR (pt. 1120) 246 at 414. This is so as there is a dichotomy between admissibility of documents and the probative value to be placed on them. While admissibility is based on relevance, probative value depends not on relevance but also on proof. Evidence has probative value if it tends to prove an issue.”PER HARUNA SIMON TSAMMANI, J.C.A.

WHETHER A DOCUMENT, ONCE TENDERED AND REJECTED AND MARKED REJECTED,MAY BE SUBSEQUENTLY BE TENDERED AND ADMITTED IN EVIDENCE IN THE SAME CASE.

It is the settled law that, a document, once tendered and rejected and marked rejected, it cannot subsequently be tendered and admitted in evidence in the same case. Such document, if inadvertently admitted, cannot be made use of as it has no evidential value. See Ita v. Ekpenyong (2001) 1 NWLR (pt. 695) 587; Oyetunji v. Akanni (1986) 5 NWLR (pt. 42) 461, Agbaje v. Adigun (1993) 1 NWLR (pt. 269) 261 at 272; A.C.B Ltd v. Gwagwada (1994) 5 NWLR (pt. 342) 25 at 31 and UBN v. Ozigi (1994) 3 NWLR (pt. 333) 385 at 399. Thus, Rhodes-Vivour, J.S.C. in the case of Wassah & Ors v. Kara & Ors (2014) LPELR-24212 (SC) stated the position of the law clearly as follows: “A document marked as an Exhibit is good evidence that the Judge is expected to rely on when preparing his Judgment. A document tendered and marked rejected cannot be tendered again. Once a document is marked rejected, it stays rejected and the defect cannot be cured during the said trial.”PER HARUNA SIMON TSAMMANI, J.C.A.

ON WHOM LIES THE BURDEN OF PROOF IN A DECLARATION OF TITLE TO LAND

Now, it is the settled law, that in an action for declaration of title to land, the burden is on the Plaintiff or Claimant to adduce-sufficient, cogent, credible and compelling evidence to establish his title. To succeed, the Plaintiff must rely on the strength of the evidence adduced by him. He is not permitted to rely on the weakness of the defence, though he may rely on such aspect of the evidence adduced by the defence which supports and thus strengthen his claim. Like in all civil cases, the burden cast on the Plaintiff will be discharged on the preponderance of evidence or balance of probabilities. See Ugwunze v. Adeleke (2008) 2 NWLR (pt. 1070) 148; Eyo v. Onuoha (2011) 11 NWLR (pt. 1257) 1; Momoh v. Umoru (2011) 15 NWLR (pt. 1270) 217; Mini Lodge Ltd v. Ngei (2009) 18 NWLR (pt. 1173) 254 and Ndukuba v. Izundu (2007) 1 NWLR (pt.1016) 342. The standard of proof will be discharged if the Claimant produces sufficient and satisfactory evidence in support of his claim. Where evidence has been led by the parties, especially in cases such as this where there is a Counter-claim, the duty of the Court is to evaluate the evidence adduced at the trial, both oral and documentary in order to see which side the scale of justice will tilt. In other words, the trial Judge will place the evidence adduced by each side to the dispute on an imaginary scale and weigh them together. Where the scale tilts in favour of the Claimants, his claim will succeed and title will be declared in his favour, otherwise, the claim will be dismissed. Where there is a Counter-Claim, the Court will also weigh the evidence adduced by the Defendant in proof of the Counter Claim, also on the imaginary scale of justice. If the scale of justice weighs in his (Defendant’s) favour, his Counter-Claim will succeed and title will be declared in his favour. This is because, the fact that the Plaintiff’s claim had failed will not automatically translate to title being declared in favour of the Defendant. The Defendant still has the burden to lead satisfactory evidence to prove his Counter-Claim. See A.R. Mogaji & Ors v. Madam Rabiatu Odofin & Ors (1978) 4 S.C 91 at 93; Lafia Local Govt. v. Executive Gov. Nasarawa State & Ors (2012) LPELR-20602 (SC); Onisaodu & Anor v. Elewuju & Anor (2006) 13 NWLR (pt. 998) 517 andOwie v. Ighiwi (2005) LPELR-2846 (SC). It should be noted that the primary responsibility of examination and apportioning of evidential weight to evidence adduced at the trial lies squarely with the trial Court. This is so because, he is the one before whom the witnesses testified, so he had the benefit of seeing and hearing directly from the witnesses as they testified. The Appellate Judge has no such advantage but relies solely on the printed record. The trial Judge therefore is better placed to assess the demeanor of the witnesses as they testify. That is why, so long as the record of proceedings of the trial Court show that the trial Judge dutifully, dispassionately and properly evaluated and apportioned the proper or right evidential weight to the evidence adduced at the trial, the Appellate Court will not interfere. The Appellate Court will only interfere when it is found from the record that the trial Court failed in his duty to properly evaluate and apportion the right evidential weight to the evidence, or the evaluation was faulty such that it led to a miscarriage of justice. See Yadis (Nig) Ltd v. GNIC Ltd (2007) 11 NWLR (pt. 1055) 587; N.E.P.A v. Adesaaji (2002) 17 NWLR (pt. 797) 38; Anyegwu v. Onuche (2009) 3 NWLR (pt. 1125) 659 at 615; Oghiri v. N.A.O.C. Ltd (2010) 14 NWLR (pt. 1214) 208 and Okonkwo v. Okonkwo (2010) 14 NWLR (pt. 1213) 228). PER HARUNA SIMON TSAMMANI, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ALHAJI WAHAB AKINSOLA 2. ASANI LAWAL PEPESILE 3. REV. EBENEZER OWOYELE 4. IGBOWU IKPOKIA 5. ABENI ARIBIJO 6. ALFA SHEU 7. SUNDAY AJAYI 8. JOBI OJOBO 9. BASHIRU FATOYINBO 10. TAIWO ADEKUNLE 11. ALHAJA TAIBAT ADEBOWUN 12. AYINDE ADETONMU 13. TAJUDEEN AMODU (For Themselves And On Behalf Of Baala Banjoko Customary Tenants Except The 8th Defendant). 14. CHIEF RAPHAEL AMOO OLUYOMI 15. ELDER OLUSANYA OLUYOMI (For Themselves And On Behalf Of Oluyomi Family Of Ketu-Oluyomi). APPELANT(S)

And

1. PRINCE ADELEKE OGUNGBAYI 2. WAHEED SALAMI 3. OLUSEGUN BABATUNDE 4. SHERIFF OGUNGBAYI (For Themselves And As Accredited Representatives Of Baala Banjoko Family Of Onigbongbo Via Ota). RESPONDENT(S)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ogun State High Court of Justice sitting in Abeokuta, delivered by A. A. Akinyemi, J., on the 4th day of May, 2016 in Suit No: HCT/138/1993.

By a 3rd Further Amended Statement of Claim filed on the 23/2/2016, Respondents who were Claimants in the Court below, sought the following reliefs:
1. A Declaration that the Plaintiffs are entitled to the Right of Occupancy to the large parcels of land at Onigbongbo near Atan-Ota, Via Ota, Ogun State which land is more particularly described and verged “RED” in Plan No: AKN/OG/121/LD/2003 and Plan No: OG/1460/2013/012D dated 13TH March, 2013.
2. N6,000.00 as Special and General Damages for the loss suffered by the Plaintiffs for the damages caused as a result of the acts of trespass committed by the Defendants and their agents and servants on the Plaintiffs’ farm and how (sic) in dispute.
3. Forfeiture of the various parcels of land and granted to the Defendants as Customary Tenants of the Plaintiffs verged “YELLOW” on the Plan of the land in dispute.

Perpetual Injunction restraining the Defendants, their servants and agents from going on or/doing anything on the said large parcel of land in dispute verged “BLUE” on the plan or any portion thereof.
5. Possession of the land in dispute verged “YELLOW” on the composite Plan of the land in dispute.

The 1st and 2nd Defendants/Appellants filed a Further Amended Statement of Defence and Counter-Claim where they sought the dismissal of the Plaintiffs’/Respondents’ Claims. They then Counter-Claimed as follows:
(a) The Defendants therefore counter claim forfeiture against the Plaintiffs.
(b) A Declaration that Gbalefa Peninsula otherwise known as Igbo Gbalefe District and now Egba part of Otta District belongs to Egba and in Egba Division and that the Defendants are entitled to the grant of Certificate of Occupancy of the Onigbongbo within Gbalefa Peninsula.
(c) Perpetual Injunction restraining the Plaintiffs from laying claim over the land in dispute and doing any act adverse to the interest of the Defendants.
(d) Possession of the land known as Onigbongbo within Gbalefa Peninsula shown in Plan No: BAG 2044 of 14/10/99.

The 3rd – 13th Appellants also filed a Further Amended Statement of Defence and Counter Claim wherein, they urged the dismissal of the Plaintiffs’/Respondents’ claims. They also counter-claimed as follows:
1. Forfeiture of the Claimants’ tenancy in respect of the land shown on Plan No. BAG 2044 of 14/10/99 drawn by Oyebanji Akinhanmi.
2. Pray that the Claimants’ claim be dismissed in its entirety.
3. Perpetual Injunction restraining the Claimants, their heirs, privies, servants, agents and whoever is claiming by them, any part of the land in dispute by any form, from further trespass on the land.

The 14th and 15th Appellants filed a Statement of Defence on the 08/6/2009 but did not counter claim. Thy however prayed the Court to dismiss the Plaintiffs’ claim.

The facts of the dispute between the parties was concisely stated by the learned trial Judge at page 380 line 27-381line 12 of the Record of Appeal as follows:
“The facts of this case, briefly put are as follows: The land in dispute is comprised in a town called ONIGBONGBO, in the Ado-Odo Local Government

Area of Ogun State, after Ota. The Claimants claim ownership of the land on the ground that it was founded by their progenitor, BAALA BANJOKO, a hunter and farmer, who came from Ota. They also claim that the Defendants are their customary tenants on the land, and have also trespassed on some other portions not granted to them. The 1st and 3rd set of Defendants, on the other hand, claim that the land falls within an area called GBALEFA PENINSULA, which became vested in their forebear, AKINDELE GBALEFA, by conquest, after the Ilobi/Ado-Odo war of 1842. They equally claim that the Claimants are their customary tenants on the land. The 2nd Set of Defendants have no pleadings to contest the claim of the Claimants. The 4th Set of Defendants on their part, claim that their town, Ketu-Oluyomi, was founded by their ancestor, Ketu-Oluyomi and is not part of Onigbongbo, but in another breath, say that the Claimants are their overlords.”

At the trial, the Plaintiffs/Respondents called eleven (11) witnesses and tendered some documents. The Defendants/Appellants called a total of five (5) witnesses and also tendered some documents. At the close of evidence,

Counsel filed and exchanged Written Addresses as required by the Rules of the trial Court. On the 4th day of May, 2016, the learned trial Judge delivered Judgment in favour of the Plaintiffs/Respondents and granted all the reliefs sought. The Counter Claims of the Defendants/Appellants were dismissed for lacking in merit. Dissatisfied with the decision of the trial Court, the Defendants/Appellants have filed this appeal.

The Notice of Appeal consisting of seven (7) Grounds of Appeal was filed on the 12/05/2016. In compliance with the Rules of this Court, the parties filed and exchanged Briefs of Arguments. The Appellants’ Brief of Arguments was filed on the 18/7/2016. Therein, five (5) issues were distilled for determination as follows:
1. Whether the learned trial Judge erred in law when he stated that the identity of the land in dispute was not in issue from the pleadings of the parties and chose to rely on a portion of the evidence of the Respondents’ Surveyor but ignored the more important aspect of the Surveyor’s evidence that the land in dispute is part of Gbalefa Peninsular which would have led to a different conclusion

that the Respondents have not proved with certainty the identity of the land claimed by them?
2. Whether the judgment of the learned trial Judge was perverse when he failed to evaluate the documents and evidence of conquest by Appellants in Exhibits “H” and “I” but preferred the evidence of traditional history of the Respondents which would have been totally discredited if the Appellants’ Exhibits “H” and “I” had been evaluated and ascribed probative value thereby occasioning a miscarriage of justice on the Appellants?
3. Whether the learned trial Judge was in error when he held that the document, Exhibits “H” and “I” were dumped on the Court by the Appellants having been tendered from the Bar and none of the Appellants’ witnesses in their oral testimony referred to them. Consequently, the Court would not look at, examine or evaluate the contents of Exhibits “H” and “I” as it would add no value to the Appellants’ case as it lacks probative value thereby occasioning a miscarriage of justice on the Appellants?
4. Whether the learned

trial Judge erred in law when he rejected Exhibits “I” (which is the Certified True Copies of the documents obtained from National Archives earlier admitted at judgment stage) on the ground that they were been admitted without jurisdiction having been earlier marked rejected on the authorities of Tabik Investment’s case and Wassah’s case when he failed to appreciate the overriding judicial principle of doing substantive justice which was enunciated in the decision of the Apex Court in both cases and thereby occasioning a miscarriage of justice on the Appellants?
5. Whether the learned trial Judge was in error when he held that the Appellants were customary tenants of the Respondents based on the evidence of traditional history of the Respondents’ witnesses which the oral testimonies and documentary evidence of conquest by the Appellants’ witnesses have totally discredited but was not considered by the Court below, thereby occasioning a miscarriage of justice on the Appellants?

The Respondents’ Brief of Argument was filed on the 28/4/17 but deemed filed on the 17/11/2020. Four (4) issues were distilled for

determination by the Respondents as follows:
(i) Whether the learned trial Judge was right to hold that the identity of the land in dispute in this matter was not in issue and that the land is known to both parties. [Ground One].
(ii) Whether the learned trial Judge was right when he discountenanced Exhibits H and I and did not evaluate the same in his judgment on the ground that the Exhibits were dumped on the Court by the Appellants thus lacking probative value. [Ground 3].
(iii) Whether the learned trial Judge was right when he discountenanced (again) Exhibit I on the ground that the Exhibit was re-admitted by the Court without jurisdiction, therefore a nullity, same having been earlier tendered and marked rejected. [Ground 4].
(iv) Whether the learned trial Judge was on firm ground when he held that the Respondents proved a better title to the land in dispute and the Appellants are their customary tenants and also in dismissing the Counter claims of the Appellants having regard to the preponderance of admissible evidence proffered on record. [Grounds 2, 5, 6 and 7).

The Supreme Court and indeed this Court has enjoined Counsel,

times without number, to indicate the grounds from which the issues have been formulated. It is apparent that the Appellant did not heed to this admonition. In that regard, this appeal shall be determined on the issues formulated by the Respondents. I have found that those issues comprehensively cover the essence of the Appellants’ appeal. I need to however point out that the Appellants filed an Appellants’ Reply Brief of Arguments on the 29/10/19 and same was deemed filed on the 17/11/2020.

Now on issue one (1), learned Counsel for the Appellants, had argued, also in their issue one (1), that the learned trial Judge rightly held that in an action for declaration of title to land, the first duty of the Claimant is to establish with certainty, the identity of the land he claims. That, when the Defendant has not made an issue of, or disputed the identity of the land contested, or it is clear that the parties know the land in dispute, the Claimant is relieved of the burden of establishing the identity of the land. The cases of Anyanwu v. Uzowuaka (2009) 13 (NWLR) (pt. 1159) and Ogundalu v. Macjob (2015) 8 NWLR (pt. 1460) 96 were cited in

support. Learned Counsel then submitted that, the Respondents as Claimants had pleaded that the land in dispute (Onigbongbo) is not within Gbalefa Peninsula as contended by the Appellants (Defendants).

Learned Counsel for the Appellants went on to submit that, contrary to the findings and decision of the trial Court to the fact that the identity of the land was not in dispute, the Appellants had indeed joined issue with the Respondents on the identity of the land in dispute when they pleaded that the land in dispute forms part of the Gbalefa Peninsula. That the burden of proving clearly and unequivocally, the area to which their claim relates is on the Claimants. The case of Ayuya v. Yonrin (2017) ALL FWLR (pt. 583) 1842 was then cited to submit that, in the instant case, the identity of the land in dispute was in issue. In other word, that the Appellants have joined issue with the Respondents as to whether the land in dispute is within Gbalefa Peninsula or not. That the Respondents were unable to prove that the land in dispute is not within Gbalefa Peninsula. The cases of Ezeudu v. Obiagwu (1986) 2 NWLR (pt. 21) 208 and Okonkwo v. Adigwu (1985) 1 NWLR

(pt.4) 694 were cited in support and to urge us to resolve this issue in favour of the Appellants.

In response, learned Counsel for the Respondents agreed that a Claimant seeking a declaration of title to land has the primary duty to prove clearly the precise area to which his claim relates. He also conceded that the burden will not arise when the identity of the land in dispute was never a question in issue. That the issue will only arise when the Defendant raises it in his Statement of Defence and supported by evidence. The submission was backed up by the cases of Ezeudu v. Obiagwu (1986) 2 NWLR (pt. 21) 208, Kyari v. Alkali (2001) FWLR (pt. 60) 1481; Dada v. Dosunmu (2006) 12 M.J.S.C. 115; Anyanwu v. Uzowuaka (2009) M.J.S.C. (pt. 1) 1 and Ogundalu v. Macjob (2005) 3 M.J.S.C. (pt. 1) 78.

Learned Counsel for the Respondents went on to submit that, the identity of a parcel of land in dispute can be established by a Survey Plan, or by an oral description that will enable a Surveyor produce a plan. The case of Awote v. Owodunni (No. 2) (1987) 2 NWLR (pt. 57) 366; Ofume v. Ngbeke (1994) 4 NWLR (pt. 341) 746; Arabe v. Asanlu (1980) 5-7 S.C. 78 and

Nwokorobia v. Nwogu (2009) 5 M.J.S.C. (pt. 1) 1, were cited in support. That in the instant case, the Respondents clearly proved the identity of the land they claim, as Onigbongbo. That they pleaded and tendered the Survey Plans of the land in dispute which plans were admitted through CW11 as Exhibits E, F and G respectively. That the Respondents and also their boundary men also testified as CW3 and CW8. That, the evidence led by the Respondents has clearly discharged the burden on them to prove the identity of the land in dispute. Furthermore, that the Appellants in their respective Statements of Defence, referred to the land in dispute as Onigbongbo. It was then submitted that, it is not in dispute that the parties by their pleadings and evidence, were ad-idem on the identity of the land in dispute.

Learned Counsel for the Respondents also contended that in any case, the Appellants never raised the issue of the identity of the land as an issue. That the evidence led by both parties at the trial, show that the parties knew the land in dispute. That the Appellants never disputed the area or size covered by the land, or the location thereof as described in the

Statement of Claim or Plan. The case of Adenle v. Olude (2003) FWLR (pt. 157) 1074 at1086 was cited in support and to further submit that, the fact that the Appellants pleaded that Onigbongbo is part of Gbalefa Peninsula, which fact is denied by the Respondents, does not raise a dispute as to the identity of the land in dispute. That what this pleading raises is an issue as to whether Onigbongbo which is alleged to be part of Gbalefa Peninsula is also owned by the Appellants. We were thus urged to hold that the learned trial Judge was right in holding that there is no dispute regarding the identity of the land in dispute; and to resolve this issue against the Appellants.

In reply on points of law, the learned Counsel for the Appellants contended that, the case of the parties as regards the location of the land in dispute is not the same because, while the Appellants claim that the land in dispute is Onigbongbo within Gbalefa Peninsula, the Respondents deny that Onigbongbo is within Gbalefa Peninsula. Furthermore, that the evidence of the Respondents’ witnesses who denied the existence of Gbalefa Peninsula is at variance with that of the

Appellants’ Surveyor to the effect that the land in dispute is within Gbalefa Peninsula. That there was therefore, a dispute as to the identity of the land in dispute with reference to the location of the land. We were again urged to hold that the Respondents failed to establish by credible evidence that the Onigbongbo they claim is not within Gbalefa Peninsula.

identity of the land in dispute is condition precedent to the success of the claim.
It should also be noted that, the need to lead evidence to establish the identity of the land in dispute will only arise if and only if the Defendant has contested the identity of the land in his Statement of Defence. Thus, where the Defendant disputes specifically, the area or location, the features, or size of the land, the identity of the land has become an issue to be tried. It therefore means that, where the identity of the land is not in issue, between the parties, no onus lies on the Plaintiff to prove the identity of the land, and such issue will not be for determination in the suit. See Gbadamosi v. Dairo (2007) 3 NWLR (pt. 1021) 282; Kyari v. Alkali & Ors (2001) 11 NWLR (pt. 724) and Ajisegiri & Ors v. Shodiya & Ors (2018) LPELR-44864 CA. In the instant case, the learned trial Judge found and held that there was no dispute as to the identity of the land in dispute, as the land in dispute was known to the parties. Particularly, the learned trial Judge had held at page 384 lines 19-385 line 3 as follows:
“Learned Counsel to the Defendants, Mr.

Makinde, did not raise or address the issue of the identity of the land in dispute in either his main Written Address or his Reply on Point of Law. I have also carefully scrutinized the respective pleadings of the parties. I do not find where, in their Statements of Defence, the Defendants made an issue out of, or disputed the identity of the land, as given by the Claimants in their own pleadings, particularly at paragraphs 4, 51, 58 and 67(1) of the 3rd Further Amended Statement of Claim. That probably explains why Mr. Makinde did not bother with the point in his Final Address. From the totality of the pleadings and the entire evidence before me, I am satisfied that the parties in this case knew the land in dispute to be the land described and called ONIGBONGBO, in the pleading of the Claimants and comprised in the Survey Plans tendered by them, Exhibits E and G. I find and hold that there is no dispute regarding the issue of identity, and that the Claimants have made the land in this case, known with sufficient clarity to all purposes and this Court.”

It is clear to me that, the learned trial Judge made findings to the effect that, there was no

dispute as to the identity of the land in dispute. That this fact might have informed the decision of learned Counsel at the trial, not to raise it as an issue in his Written Address. Indeed, none of the Sets of Defendants at the trial raised this issue of identity of the land as an issue or point to be resolved by the trial Court. The learned trial Judge therefore resolved the issue ex abundanti cautela; and in my view, his findings and conclusion is correct, same having been supported by the pleadings and evidence adduced at the trial.

The only fact which learned Counsel for the Appellants holds on to argue that the identity of the land was in dispute, is the pleadings of the Appellants that Onigbongbo is part of Gbalefa Peninsula which fact the Respondents deny. By that pleading, the Appellants had admitted to the existence of Onigbongbo but contends that, it is a part of Gbalefa Peninsula which they claim to be the large expanse of land conquered by the Egbas in the past. Having acknowledged the existence of Onigbongbo, the burden was on the Appellants to prove by credible evidence that the said Onigbongbo is part of the Gbalefa Peninsula which they

claim. This is because the law places the burden on the person who alleges positively, the existence of a fact, to prove that such fact indeed exists. There was no burden or onus on the Respondents to prove that Onigbongbo is not part of Gbalefa peninsula. This is particularly so when the Appellants had counter-claimed. On that note, I hereby hold that the learned trial Judge was right in holding that the parties to the case, knew the land in dispute and that the issue was not one to be resolved at the trial. This issue, issue one (1), is therefore resolved against the Appellants.

On issue two (2), learned Counsel for the Appellants contended that, the learned trial Judge had held that even if Exhibits “H” and “I” were properly admitted in evidence, it would add no value to the Appellants’ case because:
(a) none of the witnesses called by the Appellants made reference or said a word about the said exhibits;
(b) the exhibits were not tendered through any of the witnesses but from the Bar;
(c) no witness explained to the Court the purpose of tendering these exhibits, and
(d) the documents were not linked

by oral evidence to any aspect of the Appellants’ case.

That for the above reasons, the learned trial Judge held that the documents were merely dumped on the Court, without more, and therefore lack probative value as the Court could not even look at, examine and evaluate their contents by itself. That it was on that premise that the trial Court held that the Respondents had proved a better title to the land in dispute. That by Sections 104 and 105 of the Evidence Act, 2011, the production of Certified True Copy (as in Exhibits “H” and “I”), which are public documents, is sufficient proof of their contents, and no oral evidence through witnesses is required. In other words, public documents are admissible in evidence without further proof. The cases of Nzekwu v. Nzekwu (1989) 2 NWLR (pt. 104) 373 and C. C. B. v. Odogwu (1990) 3 NWLR (pt. 140) 646 were cited in support. Learned Counsel then submitted that the learned trial Judge was in error for coming to the conclusion that failure of witnesses to testify on Exhibits “H” and “I” made them useless to the case of the Appellants.

Learned Counsel for the Appellants then cited the case Orlu v. Gogo-Abite (2010) 1 S.C. (pt. 2) 56 at 88-89 to submit that Certified True Copies of public documents do not require any oral testimony and cannot be described as having been dumped on the Court except where the document is impugned on account of being forged, or a fraud. The cases of Mogaji v. Nigeria Army (2005) ALL FWLR (pt. 259) 1531 and Aregbesola v. Oyinlola (2009) ALL FWLR (pt. 472) 1147 were equally cited to submit that public documents can be tendered from the Bar, and that the tendering of Exhibits “H” and “I” from the Bar does not amount to dumping same on the Court. It was then submitted that, the learned trial Judge wrongly excluded the evidence provided By Exhibits “H” and “I”, and that the decision of the Court would have been different if the Court had ascribed probative value to them. The cases of Mil. Gov. of Ondo State v. Kolawole (2008) 4-5 S.C. (pt. 42) 148 and Ojengbede v. Esan & Anor (2001) 12 S.C. (pt. 2) 1 were cited in support. The case of Gonzee Nig. Ltd v. N.E.R.D.C. (2005) ALL FWLR (pt. 274) 235 and Eze v. A.G. Rivers (2002) ALL FWLR

(pt. 89) 1109 were then cited to urge us to evaluate those exhibits, and ascribe probative value to them since the trial Court failed to do so.

On this issue, learned Counsel for the Respondents drew our attention to what transpired when Exhibits “H” and “I” were tendered. That on the 09/7/2015 when the Plaintiffs/Respondents closed their case, the Appellants opened their defence. That the Appellants then, applied to tender certain documents from the Bar. That at that stage, the Appellants had not called any witnesses; but objection was raised by the Respondents on the admissibility of the documents but was overruled and the documents admitted in evidence as Exhibits “H” and “I”. That the Appellants then called five (5) witnesses, but none of these witnesses referred to those exhibits or linked them with any aspect of their testimony. That in his judgment at page 394 of the Record of Appeal, the learned trial Judge held that, those documents were merely dumped on the Court.

Learned Counsel for the Respondents then cited the cases of Obasi Brothers v. Mba Securities (2005) 2 S.C. pt. 51;

Alhaji Baban-Lungu v. Zarewa (2013) LPELR-20726; Alao v. Akano (2005) 11 NWLR (pt. 935) 160 at 178; Fawehinmi v. Akinlaja (2010) LPELR-8963(CA) and Omisore & Anor v. Aregbesola & Ors (2015) 5-7 M.J.S.C. 1 at 62 to submit that, the fact that documents were pleaded will not have any weight without supporting evidence. Learned Counsel for the Respondents then contended that the argument of the Appellants that once a document is tendered from the Bar and is certified, will not require oral evidence to relate them to the case of the person tendering it, is misconceived. That though a Certified True Copy of a public document can be tendered from the Bar, the production and tendering of such document is a different thing from relating a case with such documents.

The cases of Omisore & Ors v. Aregbosola & Ors (supra) and APGA v. Al-Makura & Ors (2016) M.J.S.C. (pt. III) 69 were further cited to submit that, since the mentioned documents were dumped on the Court, they did not have any evidential value. It was thus submitted that, the learned trial Judge was right when he discountenanced same. That in any case, the exclusion of Exhibits ‘H’ and

“I”, if found to have been erroneous, would not warrant a setting aside of the decision of the trial Court because the decision of the Court would have been the same in view of the abundance of other evidences or record in favour of the Respondents. Learned Counsel then cited Section 251(2) of the Evidence Act, 2011 and the case of Omomeji v. Kolawole (2008) 6 NWLR (pt. 1106) 180 at 202 in support, and urged us to resolve this issue against the Appellant.

In reply on Point of Law, learned Counsel for the Appellants contended that, learned Counsel for the Respondents failed to address the position of the law enunciated by the Supreme Court in Orlu v. Gogo-Abite (supra). That the position taken by the learned trial Judge is erroneous in the face of the decision of the Supreme Court in Orlu v. Gogo-Abite (supra), Nzekwu v. Nzekwu (1989) 2 NWLR (pt. 104) 373 and C.C.B. V. Odogwu (1990) 3 NWLR (pt. 140) 646 where it was held that oral evidence is ruled out in the case of public document. That, the cases cited and relied on by the Respondents are not apposite to the facts of this case, as in one of those cases, were Certified True Copy of the

public documents tendered from the Bar. Learned Counsel for the Appellants then submitted that the learned trial Judge was in error when he held that failure to give oral evidence on Exhibits ‘H’ and ‘I’ was fatal to the case of the Appellants. We were again urged to resolve this issue in favour of the Appellants.

comes to documents, there must be evidence to link or connect such document to that aspect of the case for which the document was tendered. See Fawehinmi v NBA (No. 2) (1989) 2 NWLR (pt. 105) 558; Buraimoh v. Karimu (1999) 9 NWLR (pt. 1120) 246; 310; Buhari v. INEC & Ors (2008) 19 NWLR (pt. 1120) 246; Maku v. Al-Makura & Ors (2016) 5 NWLR (pt. 1505) 201 and Abubakar v. Chuks (2007) LPELR-52 (SC). For that purpose there is no distinction between a public document and any other document. That is why the Supreme Court, per Fabiyi, J.S.C. held in the case of Action Congress of Nigeria v. Sule Lamido & Ors (2012) LPELR-7825 (SC) as follows:
“The other serious issue raised by the Appellant is in respect of Exhibit E-Z and 1-36 which are Independent National Electoral Commission’s Forms put in to substantiate various allegations of non-compliance with the Electoral Act, 2010 (as amended). The Exhibits were put in without any witness who testified in the open Court to demonstrate their purport and worth. The Appellant felt that since the documents were tendered, the trial Tribunal had a duty to consider them and not treat them as being

document. The Respondents, on their own part maintained that since the contents of the documents were not demonstrated in Court, they remain dormant for all times as no oral evidence to explain their purpose was adduced. They cited a host of authorities in support. It is not in doubt that the stated Exhibits were not demonstrated in the open Court. They were the type of documents which this Court affirmed as rightly expunged by the Court of Appeal in Buhari v. I.N.EC. (2008) 19 NWLR (pt. 1120) 246 at 414. This is so as there is a dichotomy between admissibility of documents and the probative value to be placed on them. While admissibility is based on relevance, probative value depends not on relevance but also on proof. Evidence has probative value if it tends to prove an issue.”
The argument of learned Counsel for the Appellants, and particularly with reliance on Section 104 of the Evidence Act, 2011 that, once a Certified True Copy of a public document is admitted in evidence, it must be acted upon without more is misconceived. What the law prohibits is the abduction of oral evidence of the contents of such public document. The law however

demands that, the person tendering such document must lead such evidence to connect or link his case with that aspect of the contents of the document he relies on in proof of his case. Accordingly, where the party merely tenders that document from the Bar without evidence from the witnesses to explain the purpose for which the documents were tendered, the documents tendered and admitted would attract no probative value. The learned trial Judge was therefore right when he held at page 399 Lines 18-26 of the Record of Appeal as follows:
“Therefore, assuming but without conceding, that Exhibit I was properly admitted by this Court the case of the 1st and 2nd Set of Defendants, having been simply dumped on the Court without more, it lacks probative value and does not help the case of the Defendants at all. The same thing applies to Exhibit H, because, although it was never rejected, no oral evidence or explanation of it was also given by the Defendants. Whichever way the pendulum swings therefore, for Exhibits H and I, they add no value at all to the case of Defendants, as the Court cannot even look at, examine or evaluate their content by itself.”

Having held that the decision of the trial Court in respect of Exhibits “H” and “I” are correct, issue two (2) is hereby resolved against the Appellants.

Now on issue three (3), learned Counsel for the Appellants contended that Exhibit “I” is a Certified True Copy (C.T.C.) of documents obtained from the National Archives and therefore qualify as public documents by virtue of Section 104 of the Evidence Act, 2011. That it is a document that is legally admissible, having been properly pleaded. That, the power of a Judge to reject admitted evidence at judgment stage is limited to inadmissible evidence but does not extend to legally admissible evidence on pleaded facts. The case of Igbodin v. Obianke (1976) 9-10 S.C. 179 was cited in support. Learned Counsel for the Appellants then submitted that, the learned trial Judge was in error when he excluded Exhibit “I” on the ground that its admission was a nullity. That, the rejected document later admitted was pursuant to an amendment of pleadings after the earlier rejection which was intended to perfect their error which lead to earlier

rejection. That in Agbaje v. Adigun (993) 1 NWLR (pt. 269) 261, it was held that were a trial Court rejects a document in error and later decides to admit it, it must invite Counsel to address him on it. That in the instant case, Counsel addressed the Court on the issue; and that this procedure having been followed before the document was admitted, the learned trial Judge lacked jurisdiction to reverse his decision admitting Exhibit “I” at the judgment stage since the document was not a nullity.

Learned Counsel for the Appellants went on to cite the case of Umogbai v. Aiyenhoba (2002 FWLR (pt. 132) 192 to submit that, an improperly certified public document can be recertified and retendered in evidence even where it had been earlier wrongly certified and rejected in evidence. It was thus submitted that the trial Court was in error when it held that Exhibit “I” could not be retendered upon payment of fees which is the ground upon which it had earlier been rejected.

On that wise, learned Counsel for the Appellants contended that, rejecting Exhibit “I” at judgment stage on the argument of the Respondents’

Counsel who did not appeal against the Ruling of the 9th of July, 2015, especially when the reason for rejecting the exhibit was non-payment of Certification fees is harsh and had occasioned injustice on the Appellants. We were accordingly urged to invoke Section 15 of the Court of Appeal Act to admit in evidence Exhibit “I” and ascribe due probative value to same. The cases of Inakoju v. Adeleke (2007) 1 S.C. (pt. 1) 128 and Ucha v. Elechi (2012) 3 S.C. (pt. 3) 26 were cited in support, and to urge us to set aside the judgment of the trial Court, as if the exhibit had not been rejected, the Court would have come to a different decision.

In response, learned Counsel for the Respondents contended that, on the 17/6/2014, while cross-examining CW2, Mr. Makinde of Learned Counsel for the Defendants (Appellants) tendered from the Bar certain documents obtained from the National Archives. Mr. Abudu of learned Counsel for the Claimants/Respondents at the trial, objected on the ground of improper certification, being a public document. After taking arguments from Counsel, the said document was rejected in evidence and so marked. On the 9th of July,

2015 when the defence opened its case, learned Counsel again tendered from the Bar other copies of the same document which had earlier been rejected but this time with the certification duly done but leaned Counsel for the Claimants/Appellants objected on the ground that a document which had earlier been rejected by the Court in the same proceedings cannot subsequently be admitted in the same proceedings. After listening to argument from Counsel, the trial Court overruled the objection and admitted the said documents and marked same as Exhibit “I”. That, however at the address stage, learned counsel again raised and argued on the issue as to whether the trial Court had the jurisdiction to re-admit the document which had earlier been rejected in the ruling of 09/7/2015.

Learned Counsel for the Respondents then submitted that the learned trial Judge was right to re-visit the issue at the judgment stage. That the law is settled that once a document has been tendered in a proceeding and rejected by the Court after a considered ruling, and duly marked rejected, such document stands rejected and cannot be re-tendered and admitted in the same

proceedings in which the document was rejected. The cases of Agbaje v. Adigun (1993) 1 NWLR (pt. 269) 261 and Bello v. Gov. of Kogi State (1997) 9 NWLR (pt. 521) 496 at 520-521 were cited in support. Furthermore, that the Court that delivered the ruling rejecting the document has become functus officio on the question of admissibility of the document. The cases of Aregbesola v. Oyinlola (2009) 14 NWLR (pt. 1162) 429, Wassah v. Kara (2015) 4 NWLR (pt. 1149) 374 and Tabik v. GTB (supra) were cited in support, and to further submit that, once a document is marked rejected, it stays rejected and cannot be cured at a later stage of the same proceeding.

Learned Counsel for the Respondents went on to submit that, the learned trial Judge was right in rejecting or discountenancing Exhibit “I” because same was re-admitted without jurisdiction. The cases of Babalola v. Alaworoke (2001) 5 M.J.S.C. 17 at 24 and Nigeria Ports Plc. v. Beecham Pharmaceutical Plc. Ltd (2012) M.J.S.C. (pt. II) 160 at 196 were then cited to submit that, the consequence is that the Court cannot rely on or attach any weight to exhibit “I”. On that note, we were urged

to hold that the trial Court was right in discountenancing the said Exhibit “I” and to resolve this issue against the Appellants.

On points of law, learned Counsel for the Appellants contended that, the decision of the learned trial Judge to expunge Exhibit “I” on the ground that his decision to admit the document on the 09/7/2015, was without jurisdiction, is tantamount to sitting on appeal on his own decision. That, the only option left for the Respondents after Exhibit “I” was admitted, was to appeal that ruling admitting the document. On that note, we were urged to resolve this issue in favour of the Appellants.

Now, in the resolution of this issue, the learned trial Judge situated the issue to be considered in the following words at page 392 Lines 1-4 of the Record of Appeal:
“The question is whether this Court can re-visit that earlier ruling. It is settled that, a Court has no jurisdiction to re-visit its own earlier decision unless that earlier decision is a nullity, in which case, the Court had the power to set it aside.”
The learned trial Judge then posed the question; whether the

decision of the Court admitting the documents it had earlier rejected was made without jurisdiction? After determining the submissions of Counsel and the authorities cited and relied on by them, the learned trial Judge then held at page 393 Line 24-394 Line 13 of the Record of Appeal, as follows:
“In my view, the decision of the Court of Appeal in both BELLO’S case (supra) and AREGBESOLA’S case (supra), are not in conflict with the Supreme Court decision, but actually follow them. In both decisions, their Lordships of the Appeal Court held unequivocally that a document once tendered, rejected and marked rejected, stays rejected and cannot again be admitted in the same proceedings. They added that whatever defect may affect the documents, cannot be cured in that proceeding. This is definitely in line with the Apex Court’s decision in WASSAH’S case (supra).
Going by these authorities which are binding on this Court, it is crystal clear that the decision of this Court to admit Exhibit I earlier rejected, after the defects in it had been cured, was one made without jurisdiction, and therefore a nullity. That being the case, I

have no option, but to accept and uphold as valid, the submissions of Mr. Abudu on this point. Consequently, I hold that Exhibit I was wrongly admitted by this Court. I shall however not expunge it as I had been urged by Mr. Abudu, so that in case their Lordships of the Court of Appeal do not agree with me, they would still find the document on record. The second reason for not expunging it is that I still intend to consider its effect on this case, in the alternative, in the possible event that I am wrong in the above position.”
Now, having carefully reflected on the decision of the trial Court above reproduced, and the arguments of Counsel in this Appeal, I understand that two issues of law present themselves for consideration. These are, whether a trial Court had the competence to admit a document it had earlier rejected in evidence due to certain defects in the document, after such defects have been corrected in the course of the same proceedings? Secondly, whether a trial Court can re-visit the issue of admissibility of a document at judgment stage, when such document had been tested and admitted and marked as an exhibit in the course of the proceedings?

It is the settled law that, a document, once tendered and rejected and marked rejected, it cannot subsequently be tendered and admitted in evidence in the same case. Such document, if inadvertently admitted, cannot be made use of as it has no evidential value. See Ita v. Ekpenyong (2001) 1 NWLR (pt. 695) 587; Oyetunji v. Akanni (1986) 5 NWLR (pt. 42) 461, Agbaje v. Adigun (1993) 1 NWLR (pt. 269) 261 at 272; A.C.B Ltd v. Gwagwada (1994) 5 NWLR (pt. 342) 25 at 31 and UBN v. Ozigi (1994) 3 NWLR (pt. 333) 385 at 399. Thus, Rhodes-Vivour, J.S.C. in the case of Wassah & Ors v. Kara & Ors (2014) LPELR-24212 (SC) stated the position of the law clearly as follows:
“A document marked as an Exhibit is good evidence that the Judge is expected to rely on when preparing his Judgment. A document tendered and marked rejected cannot be tendered again. Once a document is marked rejected, it stays rejected and the defect cannot be cured during the said trial.”
It follows therefore that a document which had been tendered but rejected and duly so marked, cannot at a later stage of the proceedings be cured, tendered and admitted as an

exhibit. Such a document cannot be of any evidential value or relevance in the matter. In other words, the subsequent correction and admission of such document in evidence is not permitted by law.
The above stated position is the basic or general position of the law. However, the Supreme Court and invariably this Court, has made some exceptions to that general rule. In other words, it is not in all situations where a document has been rejected that it stays rejected. Thus, admissibility, or rejection of documents may be considered under two broad categories:
(a) Where the document is the proper one but rendered inadmissible by a provision of law. In such a situation, once rejected it is considered to have been rejected on the merit.
(b) Where the document is the proper one but something has to be done to the document in order to render it admissible, such as secondary evidence of public documents. In such situation where the document was rejected on this ground that it did not conform with such requirement then, it is permissible for the person tendering it to obtain the proper copy that is admissible in law and tender it.

In the instant case, Exhibit “I” was earlier rejected on the ground of improper certification. The documents (Exhibits “I”) are documents obtained from the National Archives. Due to lack of or improper certification, the documents were rejected in evidence and duly marked as such. On the 9th day of July, 2015 when the Defendant opened their defence, learned Counsel sought to tender again those documents which had earlier been rejected due to lack of proper certification, but this time, properly and duly certified. Learned Counsel for the Claimants/Respondents objected on the ground that those documents had earlier been tendered but rejected. In his ruling delivered on the same 9/7/15, the leaned trial Judge admitted and marked same as Exhibit “I”. In his decision to admit the document, the learned trial Judge observed that those documents were rejected on grounds of non-payment of proper fees and improper certification. The learned trial Judge then observed that:
“Now, the documents now being tendered are not the ones tendered and marked rejected by the Court in that ruling. Those rejected documents are still in the custody of

the registrar of this Court. The documents now being tendered are originally certified documents from the National Archives of Nigeria with the payment receipt duly attached. In view of the due and proper certification of these documents, they are in my view, of a different legal character from the earlier rejected ones. They do not suffer from the same defaults on the earlier ones. The situation is different from the earlier rejected ones …. I hold that they are not the same documents, not in terms of legal status and character. Consequently, I hold that this is not a case where previously rejected documents are being re-admitted.”
I think that in view of the decision of the Supreme Court in Tabik Investment Ltd & Anor v. GTB Plc (2011) LPELR-3131 (SC), Exhibit “I” was properly admitted in evidence. The learned trial Judge did err in discountenancing the said document which had been properly admitted. However, the issue of the proper weight to attach to the document had been resolved under issue three (3). On the whole therefore, this issue three (3) is hereby resolved in favour of the Appellants.

On issue four (4), learned Counsel for the Appellants contended that the Appellants claimed ownership of the land based on conquest. That the Defendants/Appellants pleaded that during the tribal wars of 1842, the Egbas having defeated Ado-Odo and Ilobi captured and settled on an area of land called Gbalefa Peninsula, part of which is the land in dispute at Onigbongbo. That the Appellants claimed to be the descendants of the Egba Warriors led by Akindele Gbalefa and relied on Exhibits “H” and “I” as documentary proof of such conquest.

That the root of title of the Claimants/Respondents is based on traditional history as can be seen from the pleadings and the testimonies of CW1, CW3, and CW4. That the trial Court granted a relief not claimed by the Respondents in respect of the Ketu-Oluyomi family represented by the 14th and 15th Appellants, whose ownership is not shown on the Respondents dispute Plan in respect of Onigbongbo. That, the trial Court was therefore in error when it adjudged the Ketu-Oluyomi family as customary tenants of the Respondents in Onigbongbo land. Furthermore, that none of the Claimants’ witnesses stated that Ketu-Oluyomi land forms part of Onigbongbo.

Learned Counsel for the Appellants went on to submit that, the Respondents did not lead any evidence which controverts the claim of conquest pleaded by the 1st – 13th Appellants. That the Respondents had contended that the Onigbongbo land claimed by them is not part of Gbalefa Peninsula conquered during the war. That in the instant case, the Respondents did not convincingly and positively address the issue of the location or boundary of the land in dispute, i.e., as to whether it was within Gbalefa Peninsula as pleaded by the Appellants. In other words, that the Respondents failed to discharge the question of the identity of the land in dispute with certainty. The cases of Onwuama v. Ezeokoli (2002) FWLR (pt. 100) 1213; Fabunmi v. Agbe (1985) 3 S.C. 28, etc. were then cited to submit that in this circumstances, the claim ought to have been dismissed.

It was also submitted by learned Counsel for the Appellants that, Exhibits “H” and “I” were not considered along with the Appellants’ case, thereby depriving the Appellants the opportunity of taking advantage of those documents which

speak in their favour. The case of Fashanu v. Adekoya (1974) 1 ALL N.L.R (pt. 1) 35 was then relied upon to submit that, failure of the trial Court to consider the exhibits tendered by the Appellants before arriving at the decision in favour of the Respondents led to a miscarriage of justice on the Appellants. We were accordingly urged to resolve this issue in favour of the Appellants, allow the appeal, set aside the judgment and enter judgment in favour of the Appellants on their Counter-claim.

On this issue, learned Counsel for the Respondents began by asserting that, it is no longer in controversy that the land in dispute is situate at Onigbongbo via Ota in Ogun State of Nigeria. That, it is the settled law that, he who asserts must prove the affirmative and that it is not for the opponent to prove the negative. The cases of Imonikhe v. Unity Bank Plc (2001) 5 M.J.S.C. (pt. II) 170; Iroagbara v. Ufomadu (2009) 5 M.J.S.C. (pt. II) 164; Eya v. Olopade (2011) 5 M.J.S.C. (pt. 11) 48 and Section 132 of the Evidence Act, 2011 were then cited to submit that, the burden of proof in a suit lies on the person who will fail if no evidence at all were given on

either side. That in an action for declaration of title to land, the Claimant will only succeed on the strength of his case and cannot rely on the weakness of the Defence put up by the adversary. The cases of C.B.C. Ltd v. SCOA Ltd (2009) 5 M.J.S.C. 142; Dim v. Enemuo (2009) 4 M.J.S.C. (pt. II) 153 and Iyere v. B.F. & F.M. Ltd (2008) 12 M.J.S.C. 102 were cited in support.

Learned Counsel then went on to submit that, since both parties claim for declaration of title over Onigbongbo, each of them has a duty to prove that he has a better title over same. The case of Idundun v. Okumagba (1976) 9-10 S.C. 227; Madu v. Madu (2008) 5 M.J.S.C. 213 and Osuji v. Ogunlaji (2003) FWLR (pt. 149) 1596 were then cited to submit that, title to land may be proved by any of the five ways of proving title set out in Idundun v. Okumagba (supra). That in the instant case, while the Claimants/Respondents relied on traditional history vide first settlement and acts of ownership, the Appellants sought to prove their title via conquest and acts of ownership and possession. That, where a party claims title to land through traditional history, he must plead and lead evidence to

establish the following facts:
(i) Who founded the land;
(ii) How he founded the land; and
(iii) The particulars of the intervening owners through whom he claims the land.

The cases of Morenikeji v. Adegbosin (2003) 12 M.J.S.C. 139; Akanbi v. Salami (2003) 10 NJSC 188 and Oyadare v. Keji (2005) 4 M.J.S.C. 172 were cited in support and to further submit that the Claimants/Respondents pleaded their traditional history in paragraphs 5, 13, 22, 23, 25, 26 and 27 of their 3rd Further Amended Statement of Claim and also led evidence thereon through CW1, CW2 and CW3. That the testimony of these witnesses was consistent with the pleadings; and which evidence show that the Respondents are in possession of the land, and that the Appellants are their customary tenants.

Learned Counsel for the Respondents went on to submit that, the Appellants on the other hand, as Defendants, claimed title and relied on acts of conquest. That in prove of such acts of conquest, the Appellants tendered Exhibits “H” and “I’. The case of Apata v. Olanlokun & Anor (2013) 6-7 M.J.S.C. (pt. II) 181 was cited in support. That for the

Appellants to succeed on their claim through acts of conquest, the Appellants needed to prove not only the act of conquest but also establish a nexus between the conqueror(s) and the Appellants who claim through him or them. The case of Ukaegbu v. Nwololo (2009) 1-2 M.J.S.C. 98 at 121 was cited in support. That in this case, the Appellants failed to give evidence of how the so called Gbalefa conquered Onigbongbo. That the Appellants also failed to establish any nexus or relationship between them and the alleged warriors who conquered and settled on the land; nor did they explain how the land devolved to them from 1842 till date.

Learned Counsel for the Respondents also submitted that, in law, proof of title by traditional history alone is sufficient to grant a claim for declaration of title. The case of Osuji v. Ogunlaji (supra) was cited in support, and to submit that, the only compelling and cogent evidence on record in prove of title is the traditional history of the Respondents. That the attempt by the Appellants to rely on documentary evidence (Exhibits “H” and “I”) in proof of acts of conquest failed woefully; and

therefore, there is no doubt that the Respondents duly discharged the onus placed on them to prove a better title. Furthermore, that both parties relied on acts of ownership and possession to support their respective claims of title to the land in dispute. That, the Respondents called CW3, CW5, CW6, CW7, CW8, CW9 and CW10 who established the fact of ownership and possession of the land by the Respondents but the evidence led by the Appellants on acts of ownership and possession are full of contradictions. It was then submitted that the root of title of the Appellants via conquest having failed, it was futile to rely on or go to the issue of acts of ownership or possession. The cases of Ukaegbu v. Nwololo (supra) and Fasoro & Anor v. Beyioku & 3 Ors (1988) 2 NWLR (pt. 76) 263 were cited in support.

Learned Counsel for the Respondents went on to submit that the decision of the trial Court that the Appellants were customary tenants of the Respondents cannot be faulted. That the possession of the land in dispute by the Appellants was by reason of the customary tenancy granted them by the Respondents’ family. The case of Oseni v. Badulu (2009)

12 M.J.S.C. 30 was cited to submit that, the length of possession of the land by the Appellants over the land in dispute cannot therefore, refer to title or ownership. We were accordingly urged to hold that, the learned trial Judge rightly granted all the reliefs sought by the Respondents, and to dismiss the appeal.

The standard of proof will be discharged if the Claimant produces sufficient and satisfactory evidence in support of his claim.

Where evidence has been led by the parties, especially in cases such as this where there is a Counter-claim, the duty of the Court is to evaluate the evidence adduced at the trial, both oral and documentary in order to see which side the scale of justice will tilt. In other words, the trial Judge will place the evidence adduced by each side to the dispute on an imaginary scale and weigh them together. Where the scale tilts in favour of the Claimants, his claim will succeed and title will be declared in his favour, otherwise, the claim will be dismissed. Where there is a Counter-Claim, the Court will also weigh the evidence adduced by the Defendant in proof of the Counter Claim, also on the imaginary scale of justice. If the scale of justice weighs in his (Defendant’s) favour, his Counter-Claim will succeed and title will be declared in his favour. This is because, the fact that the Plaintiff’s claim had failed will not automatically translate to title being declared in favour of the Defendant. The Defendant still

has the burden to lead satisfactory evidence to prove his Counter-Claim. See A.R. Mogaji & Ors v. Madam Rabiatu Odofin & Ors (1978) 4 S.C 91 at 93; Lafia Local Govt. v. Executive Gov. Nasarawa State & Ors (2012) LPELR-20602 (SC); Onisaodu & Anor v. Elewuju & Anor (2006) 13 NWLR (pt. 998) 517 andOwie v. Ighiwi (2005) LPELR-2846 (SC).

It should be noted that the primary responsibility of examination and apportioning of evidential weight to evidence adduced at the trial lies squarely with the trial Court. This is so because, he is the one before whom the witnesses testified, so he had the benefit of seeing and hearing directly from the witnesses as they testified. The Appellate Judge has no such advantage but relies solely on the printed record. The trial Judge therefore is better placed to assess the demeanor of the witnesses as they testify. That is why, so long as the record of proceedings of the trial Court show that the trial Judge dutifully, dispassionately and properly evaluated and apportioned the proper or right evidential weight to the evidence adduced at the trial, the Appellate Court will not interfere. The Appellate Court will only

interfere when it is found from the record that the trial Court failed in his duty to properly evaluate and apportion the right evidential weight to the evidence, or the evaluation was faulty such that it led to a miscarriage of justice. See Yadis (Nig) Ltd v. GNIC Ltd (2007) 11 NWLR (pt. 1055) 587; N.E.P.A v. Adesaaji (2002) 17 NWLR (pt. 797) 38; Anyegwu v. Onuche (2009) 3 NWLR (pt. 1125) 659 at 615; Oghiri v. N.A.O.C. Ltd (2010) 14 NWLR (pt. 1214) 208 and Okonkwo v. Okonkwo (2010) 14 NWLR (pt. 1213) 228). Such perverse findings may occur were the trial Court took into account or shut its eyes to cogent facts before it. In the instant case, after evaluation of the evidence adduced by the Claimants/Respondents, the learned trial Judge found and held at page 394 lines 14-395 Line 2 of the Record of Appeal as follows:
“In evaluating the evidence called by the parties, I started from the Claimants. CW1 and CW2 not only stated who and how the subject land was founded, they also gave evidence of the devolution of the title to the land right from the original founder Baala, through his daughter, Banjoko, through succeeding generations till it got to the

Claimants. Their evidence was cogent, convincing and consistent with the Claimants’ pleadings. I found the evidence of CW2 particularly compelling, positive and consistent. He sounded very credible. CW3, a boundary man of the Claimants also gave evidence for them. CW4, who is also the 17th Defendant, testified, confirming that the land in dispute belongs to the Claimants and that his family is a customary tenant of the Claimants. CW6, ABENI ARIBIJO also testified to being customary tenant of the Claimants. She is the 5th Defendant. CW7, also testified to being customary tenant of the Claimants. CW8, KAMORUDEEN AJIBOGUN, a boundary man, confirmed that the Claimants are the owners of the land in dispute. CW9, JIMO LAWAL, an Egba man, admitted that his family is a customary tenant of the Claimants in the land in dispute. CW10, AWAWU ADEDEJI, also testified that her family are customary tenants to the Claimants at Onigbongbo, the land in dispute. As I have said, I found the evidence of all the Claimants’ witnesses to be straight forward, cogent, credible, convincing, positive and unequivocal. There were no gaps at all in them. I was impressed

particularly with the evidence of CW2-ADELEKE OGUNGBANJI. The evidence of these witnesses was also not impeached in any way under cross-examination. I found them to be witnesses of truth and I believe their testimonies.”

The learned trial Judge also evaluated the evidence adduced by the Appellants, who were Defendants/Counter-Claimants and held as follows:
“On the other hand, the Defendants’ evidence of conquest, the root of their title, was flimsy and not cogent at all. Although their case is not founded on traditional history, the Defendants still needed to have shown by evidence their nexus or relationship to the said warriors who conquered the land and settled there after the conquest. Apart from one Akindele Gbalefa, they did not mention any other name of anyone who fought the said war and gained the land by conquest, or was it only Gbalefa who fought and single-handed conquered the land? After Gbalefa and his Colleagues “own” the land, how has it devolved since 1842 till date? There is no explanation to this question from the Defendants, whether from their pleadings or evidence. They said that the land was

allotted to them, but there was a yawning gap regarding who, when and how? I do not agree with Mr. Makinde that the Defendants needed not to give any historical evidence at all, apart from showing that their forebears got the land by conquest. I disagree that it is sufficient for them to merely say that the Egbas conquered the land and that they are the descendants of the Egbas; and therefore, entitled to the land. Anybody can say that. This is too watery and risky for the Court to accept.”

I find the above quoted findings and conclusions of the learned trial Judge to be faultless. Indeed, the root of the Respondents title to the land in dispute through traditional history was pleaded in paragraphs 5, 6, 7, 18, 24, 26 and 27 of the 3rd Further Amended Statement of Claim. The evidence led through the witnesses in support of the pleadings was neither contradicted nor controverted by the Defendants/Appellants. The Appellants however failed to lead credible evidence to establish their counter-Claim. They claimed title through one Gbalefa, an Egba Warrior and other Warriors but failed to establish any connection, link or nexus between them and the said Gbalefa or other Egba Warriors.

Indeed, even if the fact of such conquest, which the Appellants sought to establish through Exhibits “H” and “I” had been established, the Appellants still had the onerous duty to plead and lead evidence to establish how they came to inherit or acquire ownership of the land through the Egba Conquerors. This, they failed woefully to do. The learned trial Judge was therefore right when he dismissed the Counter-Claim. The learned trial Judge was also right when he declared title to the land in favour of the Respondents.

Having held as above, it will be seen that save for issue three (3), all the pertinent issues in this appeal have been resolved against the Appellants. This appeal has therefore failed in part, but on the whole, the appeal has no merit. It is accordingly dismissed. Consequently, the Judgment of the Ogun State High Court delivered on the 4th day of May, 2016 in Suit No: HCT/138/1993 is hereby affirmed.

I award cost of One Hundred Thousand Naira (N100,000.00) against the Appellants and in favour of the Respondents.

JIMI OLUKAYODE BADA, J.C.A.: I had the preview of the

lead Judgment of my Lord, HARUNA SIMON TSAMMANI, J.C.A. just delivered.

Having also read the record of appeal as well as the briefs of argument filed on behalf of both parties, I agree that notwithstanding that issue 3 was resolved in favour of the Appellants, this appeal lacks merit and it is hereby dismissed.
I abide by the consequential orders made in the said lead judgment including orders as to cost.

FOLASADE AYODEJI OJO, J.C.A.: I have read before now the judgment just delivered by my learned brother HARUNA SIMON TSAMMANI, J.C.A.

His Lordship has dealt exhaustively with all the ies fossur determination in this appeal. I have nothing useful to add. I agree that this appeal lacks merit and should be dismissed.

The appeal is also dismissed by me. I abide by all consequential Orders in the lead judgment including the order as to cost.

Appearances:

M. Makinde, SAN with him, A. Onobrakpeya (Miss) For Appellant(s)

O. Ojutalayo, SAN with him, O. S. Coker, Esq. For Respondent(s)