ALHAJI BAYO MAGAJI ILE IYA OBA & ANOR v. DR. (MRS.) MEDINAT SULYMAN & ORS
(2019)LCN/12917(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/IL/56/2018
RATIO
COURT AND PROCEDURE: WHEN EVIDENCE IS PRODUCED
“…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 enquire into some or all of a number of questions including:
1. Whether the document is genuine and valid.
2. Whether it has been duly executed, stamped and registered.
3. Whether the grantor had the capacity and authority to make the grant.
In the instant case, the Respondents have pleaded in paragraphs 9, 10 and 12 of the Statement of Claim thereof that the land in dispute was purchased since 1977 by their late father who constructed a storey building on two of the ten plots of the land in dispute. And that upon the demise of their late father, the Respondents inherited the said property.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
COURT AND PROCEDURE : COUNTER CLAIM
“It must be reiterated for the avoidance of any lingering doubt, that a counter claim is as distinct and independent as a claim. Thus, the burden of proof required of a counter claimant is virtually the same as required of a claimant. As authoritatively held by the Apex Court in the case ofADEWUYI VS. ODUKWE (Supra): The standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally. The only difference, if we may say so, rests on the fact that the burden of proof is on the plaintiff who is claiming title and it never shifts to the defendant throughout the trial. The difference therefore, is not in the standard of proof, but on the burden of proof.
Fundamentally, a counter claim is a cross action and not merely a defence to the plaintiff?s claim. Indeed, it is an independent action and not an appendage of the original action though for convenience, the two actions are tried together. See GOWON VS. IKE OKONGWU (2003) 6 NWLR (Pt. 815) 38; (2003) 1 SC (Pt. 111) 57; @ 9 paragraphs per Katsina-Alu, JSC (as he then was).
For all intent and purposes, a counter claim being a separate, distinct, and independent action, the counter claimant has an onerous burden of proving his claim against the person counter claimed before being entitled to judgment thereupon. See DALA AIR SERVICES VS. SUADAND AIRWAYS (2005) 3 NWLR (Pt. 912) 394; (2004) LPELR ? 5532 (CA) @ 17 paragraphs E ? F.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
LAND LAW: POSSESSION OF LAND FOR A LONG TIME
“…It is trite, that purchase and acts of long possession of land in dispute are distinct and valid modes of proving title to land. See IDUNDUN VS. OKUMAGBA (Supra); OSHODI VS. BALOGUN (2017) ALL FWLR (Pt. 875) 2095 @ 2111 paragraphs E ? H.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
LAND LAW: PROOF OF TITLE TO LAND
“…it is trite, that in a claim for declaration of title, the plaintiff (claimant) shoulders the onerous burden to establish his claim by preponderance of evidence. Thus, the plaintiff is required to rely on the strength of his case alone and not on the weakness of the defendants? case. See AKPAN VS. COOKEY GAM 2 NLR 100; ADEWUYI VS. ODUKWE (2006) 6 WRN 1 @ 24; AKPAN AWO VS. COOKEY GAM 2 NLR 100.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI BAYO MAGAJI ILE IYA OBA
2. CHIEF ONIFADE Appellant(s)
AND
1. DR. (MRS.) MEDINAT SULYMAN
(NEE OYEWALE)
2. ALHAJI WAHEED YINUSA OYEWALE
3. KABIR SUMBO OYEWALE
4. ALHAJA KUDIRAT YINUSA OYEWALE
(For themselves and on behalf of other members of Late Alhaji Yinusa Oyeyele Oyewale family) Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):
The instant appeal challenges the judgment of the Kwara State High Court delivered on April 16, 2018 in Suit No. KWS/351/2015. By the judgment in question, the Court below, Coram H. O. Ajayi, J.; granted the reliefs sought by the Respondents (Plaintiffs) and dismissed the Appellants? counter-claim.
BACKGROUND FACTS
On November 10, 2015, the Respondents instituted the said suit in the Court below, thereby seeking some declaratory and injunctive reliefs against the Appellants. By the 33 paragraphed statement of claim thereof, the Respondents prayed the Court for the following reliefs against the Appellants:
a. A DECLARATION that the claimants are the owners of the land situate at along Atiku Abubakar Drive (formerly known as Agunbelewo Area), Adewole, Ilorin, Ilorin West Local Government Area, Kwara State, who became beneficial owners by virtue of inheritance of Late Alhaji Yinusa Oyeyele Oyewale under Islamic law.
b. A DECLARATION that the defendant? act of encroaching on the subject matter without the claimants? consent, authority and approval is illegal, mischievous, gold digging, oppressive and constituted an act of trespass.
c. A DECLARATION that the act of the defendants by employing the instrumentality of the Police to order the occupiers of the land subject matter of this suit to immediately vacate the said land is unlawful, illegal and unconstitutional.
d. AN ORDER directing the defendants to remove the fence and/or any other structure(s) illegally erected by the defendants on the land, subject matter of this suit.
e. AN ORDER of perpetual injunction restraining the defendants, their agents, servants, cohorts, privies, representatives and/or successors in title from further entering, trespassing, erecting any building and/or any other structure and/or dealing in any manner whatsoever with the land subject matter of this suit.
f. AN ORDER directing the defendants jointly and severally to pay the sum of One Million Naira (N1,000,000.00) as general damages for trespass.
g. Cost of this litigation.
Pleadings were settled by the parties and the case proceeded to trial. At the conclusion of the trial, the Court below delivered the vexed judgment on the said April 16, 2018 to the conclusive effect:
Aforesaid, and as stated and enumerated in the course of this judgment, the claimants having proved on it by a preponderance of evidence having shown and established a title over the said land in dispute, the defendants/counter affidavit claimants having failed to proof (sic) their claim or fulfilled (sic) the burden of proving their counter claim over the said land in dispute through preponderance of evidence. As foresaid, if placed on an imaginary scale, the claimants? evidence weighs heavier and is more probable to be believed that that of the defendants, thus the claimants? claim succeeds while the counter claim of the defendants/counter claimants fails in its entirety.
Whereupon, the Court below proceeded in the course of the judgment to grant the declaratory and injunctive reliefs, awarded N500,000.00 general damages for trespass, and N6,050.00 as costs in favour of the Respondents (claimants) against the Appellants.
Dissatisfied with the said judgment, the Appellants filed their Notice of Appeal on April 23, 2018 in the Court below. The original notice of appeal was amended with leave of Court and duly filed on 29/9/2018.
On January 31, when the appeal came up for hearing, both learned counsel addressed the Court and adopted the respective briefs of argument thereof, thus warranting the Court to reserve the judgment. Most particularly, the Appellant?s brief, filed on 12/10/2018 but deemed properly filed on 05/11/2018, spans a total of 34 pages. At pages 4 ? 5, four issues have been formulated viz:
1. Whether the failure of the learned trial judge to recognize that, the evidence led by the Claimants/Respondents on prove of customary ownership of the land in dispute has breached with regards to failure to plead and lead credible evidence on traditional history on founding, who founded the land in dispute and devolution of same without any break or gab in the first instance and as foundation before consideration of Exhibit P2 and evidence of PW1, PW2 and PW4 has not occasioned miscarriage of justice? Grounds 1, 3 and 7 of the Amended Notice of Appeal.
2. Whether a party who has failed to lead credible evidence of grant or of customary ownership can rely on a non-existent root with acts of long possession of the land in dispute? Grounds 2 and 9 of the Amended Notice of Appeal.
3. Whether the Appellants are not entitled to judgment on their counter-claims on minimal of proof. The Respondents having failed to establish customary ownership and credible evidence of grant of the land in dispute by Magaji Baboko of Ilorin to Alhaji Busari Isale-Oja? Grounds 4, 5, 6 and 8 of the Amended Notice of Appeal.
4. Whether the Respondents who has failed to establish root of title of his grantor and credible evidence of grant of the land in dispute are entitled to award of any damage against the Appellants? Ground 10 of the Amended Notice of Appeal.
The Issue No. 1 is extensively argued at pages 5 ? 12 of the brief. In a nutshell, the submission of the Appellants is to the effect that the Respondents? failure to call Magaji Baboko to tender any instrument showing purchase of the land, in dispute by Alhaji Busari Isale Oja and denial of PW4, Alhaji Salimonu Akande that he did not witness the sale of the alleged vast expanse of land between Magaji Baboko and Late Alhaji Busari Isale Oja, has knocked out the Respondents? claim of grant of the land in dispute by the said Magaji Baboko of Ilorin.
Further submitted, that the root of title of land in dispute having been breached, Exhibit P2 and act of long possession cannot assist the Respondents (Claimants) in their claim. Therefore, the Court below has erred in law to have granted all the declarations. See UKPE VS. REGISTERED TRUSTEES APOSTOLIC CHURCH (NIGERIA) (2012) 45 WRN 80 @ 115.
It is contended, that Exhibit P2, on which the Court below relied, is not admissible, in that it purports to transfer interest on land in dispute, ought to be registered in accordance with Sections 2 and 15 of the Land Registration Law CAP. 58 Laws of Northern Nigeria applicable to Kwara State. See OLOMO VS. APE (2014) 12 WRN 110 @ 124 ? 1259; ADEGEBO VS. OWOKALU (2014) 1 WRN @ 171 185; OREDOLA OKEYA VS. A.G. KWARA STATE (1992) 9 SCNJ 13 @ 23.
The Court is urged to re-evaluate the evidence and dismiss all the claims of the Respondents. See ARCHIBONG VS. THE STATE (2006) 5 SC (Pt. 111) 1 @ 15.
It is postulated, that by the Appellants? statement of defence and counter claim only the Appellants traced their root of title to their ancestors.
And that no contrary evidence adduced by the Respondents to counter the facts was placed before the Court below. See RUNSEWE VS. JIMOH (1996) 3 ? 4 Monthly Appeal Cases (MAC) 1 @ 6 paragraph B; ADELEKE VS. AKANJI (1994) 4 NWLR (Pt. 341) 715 @ 727, et al.
Conclusively, it is argued that the Court below failed to evaluate salient issues of credible evidence of traditional history showing ownership of the land in dispute and also credible evidence of the alleged grant of the land in dispute from the said Magaji Baboko of Ilorin to Alhaji Busari Isale Oja. The Court is urged to hold that the finding of the Court below at page 212 was erroneous, perverse and the judgment is liable to be set aside.
The Issue No. 2 is argued at pages 12 ? 16 of the brief, to the effect that producing a deed of title (Exhibit P2) would suffice in proving the grant of the land in dispute. It is submitted, that Exhibit P2 is not admissible in law and that the Respondents failed to lead credible oral evidence to show how the land in dispute came into existence. See UGOJI VS. ONUKOGU (2005) 5 SC (Pt. 11) 45 @ 51; PIARO VS. TENALO (1976) 12 SC 31 @ 37; NWADIKE VS. IBEKWE (1987) 4 NWLR (Pt. 67) 718.
It is submitted, that the Court below erred in law when it held at page 215, inter alia, that Exhibit P2 gives title to the land in question to the Respondents (Claimants). Allegedly, long possession by a party claiming ownership and in possession cannot found a claim of declaration of title to the land. See KYARI VS. ALKALI (2001) 5 SC (Pt. 11) 192 @ 221; OLUBODUN VS. LAWAL (2008) 6 ? 7 SC (Pt. 1) 1 @ 27; NRUAMAH VS. EBUZOEME (2006) 2 WRN 133 @ 161.
The Court is urged to hold, that the Respondents having failed to establish and lead credible evidence of grant or of customary ownership to the land in dispute, cannot rely on possession over the land.
The Issue No. 3 is most extensively argued at pages 16 ? 28, to the effect that the traditional evidence on counter claim by the Appellants remained uncontroverted and unchallenged. Thus, in the absence of any traditional evidence competing with the claim, the Appellants are entitled to judgment. See ELEMA VS. AKENZUA (2000) 6 SC (Pt. 11) 26 @ 40; LEADWAY ASSURANCE COMPANY LIMITED VS. ZECO NIGERIA LIMITED (2004) 4 SC (Pt. 1) 45 @ 54.
Further submitted, that the averments in paragraphs 12 and 13 of the statement of claim, alleging that Magaji Baboko of Ilorin was the customary ownership of the land in dispute, are not certainly not sufficient pleadings of tradition. See EWO VS. ANI (2004) 1 SC (Pt. 11) 115 @ 122.
It is argued, that the failure of the Court below to utilize the available four (4) vital documents in its file has affected the view in its holdings (findings) at pages 214, lines 16 to 19, 216 and 217 of the record. These documents are at pages 64, 65, 67 ? 70, 70 ? 75 and 76 of the record. That the said holdings have occasioned miscarriage of justice. See OYEDIRAN VS. ALEBIOSU (1992) 7 SCNJ (Pt. 1) 187 @ 192.
Further argued that the Court ought to have granted all the counter claims since they remain uncontroverted, and in the absence of any evidence of rebuttal, the Appellants are entitled to judgment on this counter claims. See ELEMA VS. AKENZUA (2000) 6 SC (Pt. 111) 26 @ 40; HILARY FARMS VS. MV MAHTRA (2007) 6 SC (Pt. 11) 85 @ 114, et al.
The Court is urged to so hold, and allow grounds 4, 5 6 and 8 of the Amended Notice of Appeal.
The Issue No. 4 is canvassed at pages 28 ? 30 of the said brief, to the effect that the award of N500,000.00 (damages) by the Court below was speculative and legally untenable when the Respondents have failed to prove entitlement to the reliefs sought. In accordance with Section 135 of the Evidence Act 2011. See UMUNNA VS. OKWURAIWE (1978) 6 ? 7 SC 1; (1978) 6 ? 7 SC (Reprint) 1, et al.
Conclusively, the Court is urged upon to allow this appeal, set aside the vexed judgment of the Court below and grant all the Appellants? reliefs in the counter claims.
Contrariwise, the Respondents? brief filed on 05/11/2018, spans a total of 24 pages. At pages 6 ? 7 thereof, four (4) Issues have been formulated viz:
3.01: Whether the learned trial judge was right in relying on purchase and act of long possession as proof of ownership of the land in dispute by the respondents.
3.02: Whether the learned trial judge relied exclusively on grant or customary ownership to confirm the respondents? acts of long possession of the land in dispute.
3.03: Whether the appellants are entitled to judgment on their counter claims on
preponderance of evidence.
3.04: Whether the respondents having established by credible evidence, their better title to the land in dispute, are entitled to the awarded damages.
The Issue No. 1 is canvassed at pages 7 ? 10 of the brief. In the main, it is submitted, that the Court below rightly considered the four ways of proving title, and rightly granted the reliefs sought by the Respondents.
It was submitted, that from the inception of the case, Exhibit P2 was pleaded by the Respondents as evidence of purchase of the land and was admitted as such. See paragraph 10 of the statement of claim. See PRINCE ATILADE ADEYEMI VS. CHIEF S. O. OVBA (2017) ALL FWLR (Pt. 870) 1004 @ 1042; BENJAMIN VS. KALIO (2018) FWLR (Pt. 920) 1 @ 17 A ? B.
The Issue No. 2 is argued at pages 10 ? 14 of the brief, to the effect that, the Court below had the opportunity of observing the demeanour of the witnesses and evaluating their testimonies before ascribing probative value thereto, and hereby arrived at the decision thereof.
It is submitted, that the case of KYARI VS. ALKALI (2001) 5 SC is distinguishable from the facts and circumstances of the present case. The reason being that the land was subject of acquisition as different from the Respondents? evidence of purchase. That in KYARI VS. ALKALI (Supra), the obtained Certificates of Occupancy were rooted on no foundation different from Exhibit P2 in the present case which was confirmed by PW1 who revealed the source of root of title.
The case of OLUBODUN VS. LAWAL (Supra) was equally said to be not apposite in support of the Appellants? case, rather it favours the Respondents? case more so as the subject matter of that case was founded on settlement.
Further argues that the case of NRUAMAH VS. EBUZOEME (Supra) equally founded on proof of traditional means as against the Respondents? claim of conveyance and long possession. That the case favours the Respondents. See paragraphs B ? C @ page 237.
The Court is urged to hold that the Court below was right to have held that the Respondents had led evidence that entitled them to their reliefs.
The Issue No. 3 is canvassed at pages 14 ? 18 of the said brief, to the effect that the Respondents joined issues with the Appellants on the purported claim of customary ownership of the land in dispute, in their reply to the Appellants? statement of defence and defence to the counter claim. And that it is the duty of the Appellants to show to the Court through erodible evidence the 1st Appellant?s family land covers the land in dispute, which they failed to so do.
It was argued that the Respondents raised the issue of limitation as an issue of fact during the pretrial conference which was adopted and settled as Issue 3.
Conclusively on the issue, the Court is urged to affirm the position of the Court below, that the counter claim was filed outside the time limit of ten years, in line with Section 4 of the Limitation Law, CAP. K30, Laws of Kwara State, 2006.
Lastly, the Issue No. 4 is argued at pages 19 ? 22 of the brief, to the effect that the Court below rightly considered the Respondents? claim in their writ and statement of claim and in its discretion awarded N500,000.00 general damages. That it?s trite, that when facts establishing trespass to land are proved, and general damages are claimed, the trial Court must proceed to assess, quality and award the appropriate damages. SeeHARUNA VS. ISAH (2016) ALL FWLR (Pt. 818) 918 @ 953 A ? B.
The Court is urged to so hold.
Conclusively, the Court is urged upon to dismiss the appeal in it?s entirety with substantial costs against the Appellants.
By the reply brief thereof, filed on 13/12/2018, the Appellants have once again urged upon the Court to allow the appeal.
Having accorded an ample consideration upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis–vis the record of appeal, I am appreciative of the fact that the four Issues raised in the Appellants? brief are very much germane to the notice and grounds of appeal. Thus, it?s my privilege to adopt the said four Issues mutatis mutandi in question for the determination of the appeal, anon.
ISSUE NO. 1
The first issue raises the vexed question of whether the failure of the court below to recognize the Respondent?s evidence on proof of customary ownership of the land in dispute has occasioned miscarriage of justice to the Appellants. The first issue is predicated upon Grounds 1, 3 and 7 of the Notice of Appeal.
As alluded to above, the vexed judgment of the Court below spans a total of 48 pages (177 ? 225 of the record). Instructively, it is trite, that in a claim for declaration of title, the plaintiff (claimant) shoulders the onerous burden to establish his claim by preponderance of evidence. Thus, the plaintiff is required to rely on the strength of his case alone and not on the weakness of the defendants? case. See AKPAN VS. COOKEY GAM 2 NLR 100; ADEWUYI VS. ODUKWE (2006) 6 WRN 1 @ 24; AKPAN AWO VS. COOKEY GAM 2 NLR 100.
In ADEWUYI VS. ODUKWE (Supra), it was authoritatively held by the Apex Court:
The standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally. The only difference? rests on fact that the burden of proof is on the plaintiff who is claiming title, and it never shifts to the defendant throughout the trial. The difference therefore, lies not in the standard of proof, but on the burden of proof.
It has long been settled in a plethora of formidable authorities, that there are five distinct methods or ways by which ownership (title) of land may be proved. Firstly, ownership of land may be proved by traditional evidence. Secondly, ownership of land may be established by production of documents of title which must be duly authenticated. In the sense, that their execution must be proved, unless they are produced from proper custody. See Section 129 of the Evidence Act; JOHNSON VS. LAWANSON (1971) 1 ALL NLR 56. Thirdly, ownership of land can be proved by acts of the claimant, such as selling, leasing or renting out all or part of the land, or farming on it or a portion thereof. Provided, however, such acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner. See EKPO VS. ITA ll NLR 68. Fourthly, acts of long possession and enjoyment of the land may equally be prima facie proof of ownership of the particular parcel of land with reference to which such acts are done. See Section 45 of the Evidence Act. As aptly held by the Supreme Court in the locus classicus – IDUNDUN VS. OKUMAGBA (1976) LPELR ? 1431 (SC) paragraph 4:
Such acts of long possession, in a claim of declaration of title (as distinct from a claim for trespass are really a weapon more of defence than of offence; moreover, under Section 145 of the Evidence Act, while possession may raise a presumption of ownership; it does not do more and cannot stand when another proves a good title (See DA COSTA VS. IKOMI (1968) 1 ALL NLR 394 at page 398.
Fifthly, proof of possession of connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of establishing ownership of the land in dispute. See Section 45 of the Evidence Act; IDUNDUN VS. OKUMAGBA (Supra) @ 22, – 26 paragraphs C ? C per Fatayi ? Williams , JSC (as the learned Lord then was).
In the instant case, it is obvious from the pleadings and evidence on record, that the Respondents placed heavy reliance on purchase of the land in dispute and acts of long possession since 1977. What?s more, the Respondents equally traced their title to the seller, PW1 who testified and traced his own title to the deceased father thereof and to the original customary owner, Magaji Baboko of Ilorin, from whom the PW1?s late father acquired a large expanse of land, from which part was sold to the Respondent?s late father/husband, the late Alhaji Oyeyele Oyewale.
Thus, contrary to the Appellants? assertion, the Respondents did not rely on grant or original settlement as title to claim the land in dispute under Issue 1.
It is trite, that purchase and acts of long possession of land in dispute are distinct and valid modes of proving title to land. SeeIDUNDUN VS. OKUMAGBA (Supra); OSHODI VS. BALOGUN (2017) ALL FWLR (Pt. 875) 2095 @ 2111 paragraphs E ? H.
The PW4 had testified that he was the very agent that facilitated the purchase and sale of the vast expanse of the land between the then Mogaji Baboko and Alhaji Busari Isale Oja, the PW1?s late father. The said PW4 equally testified that the PW1 had exercised right of ownership and had sold several portions of the land to people before and after the sale of the land to late Alhaji Yinusa Oyeyele Oyewale, the late father of the Respondents.
I am not unmindful of the Appellants? argument regarding Exhibit P2, which the Appellants alleged to be defective for not having been registered, thereby lacking in evidential value. Exhibit P2 was the evidence of purchase of the land in dispute and same was duly pleaded by the Respondents in paragraph 10 of the Statement of Claim thereof:
10. The Claimants further aver that the said purchase was evidenced by a Deed of Conveyance dated 10th March, 1977 between Alhaji Abdullahi Dare Busari of No. 93 AbdulAzeez Atta Road, Surulere, Ilorin Kwara State (purchaser). A copy of the said Conveyance dated 10th March, 1977 is hereby pleaded as evidence of purchase of the land, subject matter of this suit and same shall be relied upon at the trial, of the suit.
It is trite, that such a document as Exhibit P2 duly admitted as evidence of purchase of the land in dispute, coupled with (long) possession, raises the presumption that the purchaser entered into possession of the property under contract of sale, thereby resulting in an equitable interest capable of being converted into a legal estate by specific performance. See ADEYEMI VS. OVBA (2017) ALL FWLR (Pt. 870) 1004 @ 1042; BENJAMIN VS. KALLO (2018) FWLR (Pt. 920) 1 @ 17 paragraphs A ? B.
In the circumstance, the first Issue ought to be, and same is hereby resolved against the Appellants.
ISSUE NO. 2
The second issue raises the question of whether the Respondents who failed to lead evidence of grant of customary ownership can rely on a non-existent root with acts of long possession of the land in dispute. The second issue is distilled from Grounds 2 and 9 of the Notice of Appeal.
Contrary to the Appellants’ postulation, the Court below considered various means or ways of proving title to land including but not limited to purchase and acts of long possession in accordance with the principles of law.
It was submitted by the Appellants that in the instant case, the Respondents only provided Exhibit P2 which allegedly was not admissible in law. And that the Appellants failed to lead credible oral evidence to show how the land in dispute came into existence. The case of UGOJI VS. ONUKOGU (2005) 5 SC (Pt. 11) 45 @ 51 was cited and relied upon among other cases.
In the case of ROMAINE VS. ROMAINE (1992) 4 NWLR (Pt. 238) 650, equally referred to by the Appellants, the Apex Court per Nnnaemeka-Agu, JSC held:
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 enquire into some or all of a number of questions including:
1. Whether the document is genuine and valid.
2. Whether it has been duly executed, stamped and registered.
3. Whether the grantor had the capacity and authority to make the grant.
In the instant case, the Respondents have pleaded in paragraphs 9, 10 and 12 of the Statement of Claim thereof that the land in dispute was purchased since 1977 by their late father who constructed a storey building on two of the ten plots of the land in dispute. And that upon the demise of their late father, the Respondents inherited the said property.
It is obvious from the record (page 215), that the Court below in the course of the vexed judgment found:
I am of the considered view that if placed on the original scale of justice and preponderance of the claimants? witnesses, both oral and documentary weighs far heavier and more probable to be believed and more convincing than that of the Defendants and their witnesses.
The claimants in my considered view have proved their title to the land in question i.e. 250ft by 250ft along Abubakar Atiku Drive, Off Agunbelewo by their deed of title Exhibit P2 evidencing the purchase of the said land by their late father Alhaji Yinusa Oyeyele Oyewale from the late father of PW1, Alhaji Busari Isale Oja on the 10th March, 1977.
The said Exhibit P2 in my considered view gives title to the land in question to the claimants. The evidence of the claimants witnesses to the storey building in the said land by their late father, Alhaji Yinusa Oyeyele and the family being in peaceful possession and occupation since 1977 without any disturbance until year 2015 or five (5) years ago as testified to by the Defendants establishes the fact, of ?.. possession by the claimants i.e. having been in peace (sic) possession since 1977 until 2015 or five (5) years ago, when the Defendants came unto the land claiming possession of same.
I cannot agree more with the foregoing findings of the Court below, which said findings are undoubtedly cogent, unassailable, and duly supported by the pleadings and evidence on record.
Contrary to the Appellants? misconceived postulation, the case of KYARI VS. ALKALI (2001) 5 SC (Pt. 11) 192 is not apposite to the instant case. The obvious reason being that in the instant case, there is an amply cogent evidence relied upon by the Court below to the conclusive effect that placing the evidence of the respective parties on the imaginary scale of justice, the Respondents? evidence, both oral and documentary, weighs heavier and more probable to be believed and more convincing than that of the Appellants.
Undoubtedly, the Appellants cannot rely on the authority of KYARI VS. ALKALI (Supra) due to the simple reason that they are not ?true owners? of the land in dispute as rightly found by the Court below in the vexed judgment.
In the circumstance, the second issue is here by resolved against the Appellants.
ISSUE NO. 3
The third issue raises the vexed question of whether the Appellants are not entitled to the judgment on their counter claims on minimal of proof, the Respondents having failed to establish customary ownership and erodible evidence of grant of the land in dispute by Magaji Baboko of Ilorin to Alhaji Busari Isale-Ojo. The third issue is distilled from grounds 4, 5, 6 and 8 of the Amended Notice of Appeal.
The Appellants have vehemently controverted paragraphs 12 and 13 of the Respondent Statement of Claim, to the effect that Magaji Baboko of Ilorin was not the customary owner of the land in dispute. Most especially in paragraphs 5 and 7 of the Statement of Defence thereof, the Appellants aver:
5. The Defendants in further response to paragraphs 13 and 14 of the Statement of Claim aver that Magaji Baboko is not the customary owner of the land in dispute and has not legal right to transfer/sell the land in dispute to the said Alhaji Abdullahi Dare Busari.
7. The defendants in response to paragraphs 16, 17 and 18 of the Statement of Claim state that the alleges sharing of the 8 plots of land by the alleged children of late Alhaji Yinusa Oyeyele Oyewale was illegal, and of no effect since the 10 plots of land allegedly sold by Alhaji Abdullahi Dare Busari to late Alhaji Yinusa Oyeyele Oyewale was a fraud against the Ile Iya-Oba family.
On the part thereof, the Respondents in paragraphs 8, 9, and 10 of their reply to the Statement of Defence, joined issues with the Appellants in regard to the question of whether or not Mogaji Baboko was the customary owner of the land in dispute. In the course of the vexed judgment, the Court below found at page 216, lines 9 ? 16, of the record:
In my considered view the claimants have proved their title and claim as per their claim of the land in dispute.
In the same vein, I am of the considered view that the defendants in order to prove their counter claim are required to proof (sic) a better title to that of the claimant as in Exhibit P2.
Thus the failure of the defendants to tender their alleged Ilorin Local Government Customary Right of Occupancy No. 2837 issued in year 1988 is very detrimental to their counter claim.
The Court below also stated at page 217, lines 14 ? 16 of the record:
I am of the considered view that the none tendering of this Customary Right of Occupancy by the defendants could only mean that probably if tendered would be detrimental to their counter claim:
At pages 219 ? 220 of the record, the Court below equally held:
I am of the considered view that DW1?s failure to tender the survey plan pleaded, testified to have been made in his name in his adopted statement on oath is detrimental to his claim to the defendants stance and counter claim. It is germane (Sic) to state that the deed of transfer of the land in dispute pleaded by DW1 in his statement on oath was not equally tendered. In fact none of the exhibits pleaded by the defendants counter claimants were tendered on proof and or defence of their case/counter claim.
The above finding is worrisome scenario created by the Appellants as depicted by the vexed judgment. The findings of the Court are cogent, unassailable and duly supported by the pleadings and evidence on record.
It must be reiterated for the avoidance of any lingering doubt, that a counter claim is as distinct and independent as a claim. Thus, the burden of proof required of a counter claimant is virtually the same as required of a claimant. As authoritatively held by the Apex Court in the case ofADEWUYI VS. ODUKWE (Supra): The standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally. The only difference, if we may say so, rests on the fact that the burden of proof is on the plaintiff who is claiming title and it never shifts to the defendant throughout the trial. The difference therefore, is not in the standard of proof, but on the burden of proof.
Fundamentally, a counter claim is a cross action and not merely a defence to the plaintiff?s claim. Indeed, it is an independent action and not an appendage of the original action though for convenience, the two actions are tried together. See GOWON VS. IKE OKONGWU (2003) 6 NWLR (Pt. 815) 38; (2003) 1 SC (Pt. 111) 57; @ 9 paragraphs per Katsina-Alu, JSC (as he then was).
For all intent and purposes, a counter claim being a separate, distinct, and independent action, the counter claimant has an onerous burden of proving his claim against the person counter claimed before being entitled to judgment thereupon. See DALA AIR SERVICES VS. SUADAND AIRWAYS (2005) 3 NWLR (Pt. 912) 394; (2004) LPELR ? 5532 (CA) @ 17 paragraphs E ? F.
As copiously alluded to above, the Court below found rightly in my considered view:
Infact none of the Exhibits pleaded by the defendants counter claimants were tendered in proof and or defence of their case/counter claim.
The said pleaded documents being:
1. Customary Right of Occupancy showing landed property of the 2nd defendant.
2. Survey Plan showing landed property of the 2nd Defendant.
3. Two (2) deeds of transfer dated 14/10/2015 before ?. the defendants.
4. Photos showing destroyed fence.
Not unexpectedly in my view, the Court below had no option but to come to the most inevitable conclusion:
Failure of the defendants to so tender the documents pleaded as testified about and even call the 2nd defendant one Chief Onifade to buttress the evidence of the defendant/counter claimants in my considered view is very detrimental to the defence, and counter claim of the defendants/counter claimants. The Court can only decide that most probably if the documents were tendered and evidence adduced upon same may/will be detrimental to the case of the defendants. The Court can equally conclude that it is trite that he who asserts must proof (sic). See Section. 131-134 of the Evidence Act.
In the circumstance, the third issue is hereby resolved against the Appellants.
ISSUE NO. 4
The fourth issue raises the question of whether the Respondents who failed to establish root of title of his grantor and credible evidence of grant of the land in dispute are entitled to award of damages against the Appellants. The fourth issue is solely predicated upon Ground 10 of the Notice of Appeal.
The instant issue specifically relates to relief 6 duly granted by the Court below in the course of the judgment:
6. The defendants having trespassed into the said land subject matter of this suit are hereby directed to pay jointly and severally the sum of Five Hundred Thousand Naira (N500,000.00) only to the claimants as general damages for trespass.
In my considered view, having resolved all the three preceding issues against the Appellants and in favour of the Respondents, there is no gainsaying that the fourth and last issue ought to equally be resolved against the Appellants. In the circumstance, the fourth issue is hereby resolved against the Appellants.
Hence, having resolved all the four issues canvassed and argued by the respective parties against the
Appellants, there is no doubt that the appeal resultantly fails and it is hereby dismissed by me.
Consequently, the judgment of the Kwara State High Court holden at Ilorin Judicial Division delivered by the Hon. Justice H. O. Ajayi, J.; in Suit No. KWS/351/2015 on April 16, 2018 is hereby affirmed.
The Respondents shall be entitled to Fifty Thousand Naira (N50,000.00) only as Costs against the Appellants.
HAMMA AKAWU BARKA, J.C.A.: I have heard the priviledge of reading in draft the judgment of my learned brother Ibrahim Mohammed Musa Saulawa JCA, just delivered.
I agree with the reasoning contained therein and the conclusion arrived thereat. I also dismiss the appeal for lacking in merit thus affirming the decision of Ajayi J. in Suit No. KWS/351/2015 delivered on the 16th of April, 2018.
The respondent is entitled to costs assessed at N50, 000 against the appellant.
BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the Illuminating judgment of my Lord IBRAHIM MOHAMMED MUSA SAULAWA, JCA just delivered. I adopt the reasoning and the conclusion reached by his Lordship in resolving the four issues for determination against the Appellant. I agree that this appeal lacks merit and deserves to be dismissed; it is hereby dismissed by me. The judgment of the Kwara State High Court in Suit No: KWS/351/2015 delivered on 16th April, 2018 is hereby affirmed by me. I abide by the order of cost made in the lead judgment.
Appearances:
A. A. Ibraheem, Esq. For Appellant(s)
Taofiq Temitope Sanusi, Esq.For Respondent(s)
