ALHAJI IBRAHIM BAKARE v. ALHAJI RASHEED MOLIKI OLORE
(2019)LCN/13458(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/EK/20/2017
RATIO
LAND LAW: DECLARATION OF TITLE: 5 WAYS TO PROVE TITLE
The Courts over time, with regard to issue of ownership and title to land, have continued to guide and assist themselves with five (5) recognized methods of proving ownership as enunciated in the locus classicus case of IDUNDUN V. OKUMAGBA 1976 6-10 SC 246, amongst several others, in pursuit of doing substantial justice on land matters. The five methods are as follows:
1. Traditional Evidence
2. Document of Title
3. Various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
4. Acts of lawful enjoyment and possession of the land and
5. Proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition, own the disputed land.
See also the cases of FASORO V. BEYIOKU (1988) 2 NWLR PT. 76 261, EZEOKE V. NWAGBO(1988) 1 NWLR PT. 72 616 and AUDU OTUKPO V. APA JOHN & ANOR. (2012) LPELR-SC 228/2011.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
WHETHER THE METHODS OF PROVING TITLE TO LAND CAN BE PROVEN SEPARATELY
The foregoing stated methods of proof of ownership are separate and independent, such that establishment of one shall suffice for success in a claim. See the case of EKPO V. ITA (1932) 11 NLR 68. When a Claimant fails to establish one of the five (5) ways, he is not permitted to rely on long possession or any act of ownership to prove title. See the cases of BALOGUN V. AKANJI (1988) 1 NWLR PT. 79 301 and IBENYE V. AGWU (1998) 11 NWLR PT. 574 372. The apex Court per Kutigi JSC, as he then was, had this to say in that regard in the case of REGISTERED TRUSTEES OF THE DIOCESE OF ABA V. NKUME (2002) FWLR PT. 90 1270:
It is settled law that where a party?s root of title is pleaded as for e.g. grant a sale or conquest etc. that root of title has to be established first and any consequential acts following thereon can properly qualify as acts of ownership. Where the title pleaded has not been proved, then it will be unnecessary to consider acts of possession for the acts then become no longer acts of possession but acts of trespass.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
CIVIL CASES: HOW TO PROVE TITLE IN CIVIL MATTERS
Proof of a matter in civil cases is long settled and firm that, it is determined by the preponderance of evidence or the balance of probabilities. See the cases of IMANA V. ROBINSON (1979) 3-4 SC, DAODU V. NNPC (1998) 2 NWLR PT. 538 355, KALA V. POTISKUM (1998) 3 NWLR PT. 540 1. The Claimant who asserts has the onus of proof to present cogent and credible evidence otherwise, his case would fail and it does not matter whether or not the defence of the Defendant is weak. He must rely on the strength of his case and not the weakness of the defence. See the cases of IMAM V. SHERIFF (2005) 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE (1982) 2 SC P. 25 and AGBI V. OGBEH(2006) 11 NWLR PT. 990 P. 65. It is after such proof or establishment of his case that the burden shifts to the opposing party. See the cases ofDAODU V. NNPC (supra), KALA V. POTISKUM (supra), ITAUMA V. AKPE-IME (2000) 7 SC PT 11 24, ELIAS V. DISU (1962) 1 ALL NLR 214, LONGE V. FBN PLC. (2006) 3 NWLR PT. 967 P. 228 and a host of others.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
JUSTICES
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
ALHAJI IBRAHIM BAKARE Appellant(s)
AND
ALHAJI RASHEED MOLIKI OLORE Respondent(s)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): The Ekiti State High Court on March 7th 2016 by Hon. Justice C. I. Akintayo, delivered judgment in Suit No. HAD/60/2012, against the Appellant, (the Claimant at the Court below) and found in favour of the Counter-claim of the Respondent, (the Defendant at the Court below). In the main, the Appellant, his privies and servants were perpetually restrained from further trespass on the land in dispute which was declared as that of the Respondent. In consequence, this appeal was brought by the Appellant.
At the Court below, the following were the claims of the Appellant:
a. ?1 million general damages for the various acts of trespass committed and still being committed by the defendant, his agents, servants or privies on the claimant?s land lying, being and situate at Odofin family land at Oke Eyelori, Ado-Ekiti.
b. An order of perpetual injunction restraining the defendant, by themselves, his agents, servants or privies from further committing acts of trespass on the claimant?s land.
c. An order of Court vacating the defendant from
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the claimant?s land at Odofin family land at Oke Eyelori, Ado-Ekiti.
The brief gist as garnered from the printed Record before this Court is that:
The Appellant being a member of the Odofin family, which is the original owner of the land in question, claimed that he inherited the land in question, four plots (4), situate at Oke-Eyelori, Ado- Ekiti, from his father, Bakare Omotoso (Dongo) who in turn had inherited through his father, late Pa Aripin, when the said plots were shared and given to the Appellant?s late father, Pa Bakare Omotoso Dongo, during the chieftaincy period of late Odofin Onide. That, he had been in control since the demise of his father in 1977. Further that, when he found the Respondent on the property, the latter claimed to have bought the land from one Tunde Fagbuaro who denied selling the property to him. That, the Respondent failed to show evidence of purchase from any member of the Odofin family as the receipt he presented was not genuine. The royal palace Customary Court, upon the Appellant?s report and from its investigations, found in favour of the Appellant but, the Respondent continued to trespass
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thereon. Consequently, he instituted an action at the Court below and the decision thereat is being appealed against.
On the part of the Respondent, the story is that he was given the land in issue by his father, Alhaji Saka Olore, who bought four plots of land from the then Chief Odofin, Chief Fagbuaro, for ?700 (Seven Hundred Naira) with the receipt dated 6/7/73 and that his father in 1985, paid another sum of ?50.00 (Fifty Naira) to the Odofin family for an affidavit to back up the transaction. Further that, he owns other plots of land which share boundary with the four plots in issue and that in the year 2008, he surveyed the eight (8) plots as contained in Survey plan No. Ek/502/2008/008. That, he paid a further sum of ?5000 to Chief Odofin, Chief Francis Kayode when he took over as the Odofin upon the instruction of one Mr Benjamin Elerebi, who later complained that the said sum was not shared by the Odofin. He therefore paid a sum of ?4000 to Mr Elerebi. His position was also that, the entire Odofin family, at their meeting to which he was invited to show proof of his ownership of the land in question, resolved that he owns the land. In
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the year 2006, he fenced round the whole eight (8) plots for the sum of ?370, 000. 00 and caused workers to blast the rock thereupon in the year 2005 for ?280, 000. 00. That, because of the non-appearance of the Appellant before the Ewi-in Council, his case was struck out. Therefore, he continued developing the property and erected a building on it and so was shocked in the year 2010, when he heard that judgment was given against him. In consequence, he filed in response, Counter-claim to the Appellant?s claims as follows:
RESPONDENT?S COUNTER-CLAIM
a. 4, 000, 000. 00(Four Million Naira Only) as General damages for the claimant?s willful trespass to the defendant?s 4 plots of land in dispute.
b. 650, 000.00 (Six Hundred and Fifty Thousand Naira Only) being the value of property damaged by the claimant on the disputed land wherein the claimant is claiming ownership which is very illegal
c. A perpetual injunction restraining the claimant, or his privies, agents and servants from further trespassing on the defendant?s four plots of land purchased for him by his father.
d. An order restraining the
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claimant from further trespass on the disputed 4 plots of land pending the final determination of this suit.
As afore stated, the Appellant approached this Court being dissatisfied with the decision of the Court below with his Notice of Appeal filed October 9th 2018 as amended, dated October 5th 2018 and was deemed as properly filed and served on October 11th 2018 with six (6) grounds of appeal.
RELIEFS BEING SOUGHT:
a. To allow the appeal
b. To set aside the decision or judgment of the lower Court dismissing the Appellant?s claim and that granting the counter-claim of the Respondent.
c. An order granting the claim of the Appellant and dismissing the counter-claim of the Respondent.
In compliance with the Rules of this Court, the Appellant on October 9th 2018 filed his brief of argument dated October 5th 2018 and was deemed as properly filed and served on October 11th 2018. The said brief was settled by Mr. Taiwo Martins Ogunmoroti Esq. whilst the Respondent?s brief which was dated and filed November 13th 2018 was settled by Mr. A. O. Okeya Esq. The Appellant, in response, on January 25th 2019 filed a Reply brief dated January 22nd 2019.
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ISSUES SUBMITTED FOR DETERMINATION BY THE PARTIES
APPELLANT?S ISSUES:
1. Whether the reliance on exhibits A, B and C did not occasion a miscarriage of justice (Grounds 1 and 6).
2. Whether from the pleadings and available evidence of record the learned trial Court was right to have granted the Respondents reliefs and or also right to have dismissed the Appellant?s reliefs (Grounds 2, 3, 4 and 5).
RESPONDENTS ISSUES:
The Respondent adopted the Appellant?s issues as submitted.
Having very carefully considered the foregoing issues, they are hereby adopted however, with the following amendment, as this Court is empowered to do. See the cases of, amongst many others, UNITY BANK PLC. V. BOUARI (2008) 7 NWLR PT. 1086 372, LATUNDE V. BELLO LAJUNFIN (1989) 5 SC 59 and OKORO V. THE STATE (1988) 12 SC 191:
Whether from the pleadings and available evidence on Record, the learned trial Court was right to have dismissed the Appellant?s claims and granted the Respondent?s reliefs and whether or not by the reliance on Exhibits A, B and C, there was miscarriage of justice.
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PARTIES SUBMISSIONS
APPELLANTS SUBMISSION
Mr. Ogunmoroti Esq, learned Counsel for the Appellant, submitted that, Exhibit A, the purchase receipt from the Respondent, being an instrument affecting land ought to have been registered according to Section 16 of Lands Instrument Registration Law of Ekiti State and not been registered should be rejected and cited in support the cases of OSSAI V. NWAJIDE (1975) 4 SC 207, OJUGBELE V. OLASOJI (1982) 4 SC 31, UBA PLC V. AYINKE (2000) 7 NWLR PT. 663 P. 83, and AKINDURO V. ALAYA (2007) 15 NWLR PT. 1057 P. 312. He contended that, there was no ownership of the land purportedly granted to the Respondent stated on Exhibit B, further that the names without signature and signatures without name have no value and cited in support the cases of MAMMAN V. BWACHA 2017 1 NWLR PT. 1547 P. 425. That, Exhibit A which stated 100 x 200sq meters has rendered Exhibit B which referred to Exhibit A as 200 x 100ft of no worth and consequently both are irrelevant and inadmissible. As well, in regard to Exhibit C, the Survey plan in respect of the property, he submitted in the same vein that it was irrelevant
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and inadmissible as it cited therein, a land space of 4436. 527sq. mts. Therefore, he submitted that, the Court should have dismissed the Respondent?s Counter-claim and that the decision was perverse and in support, cited the case of EKEOWA V. NCC PLC NKALAGU (2009) 4 NWLR PT. 1131 P. 289.
The learned Counsel submitted that the Respondent failed to prove his root of title and entitlement to the property, therefore, his case ought to have been dismissed. He cited in support the case of ADEMOLA V. SEVEN-UP BOTTLING CO. PLC. (2004) 8 NWLR PT. 874 P. 134. He submitted that, the attempt to correct what is contained in Exhibit A by DW1 is not allowed in law and cited in support the cases of B. MANFAG NIG. LTD. V. M/S. OL LTD. (2007) 14 NWLR PT. 1053 P. 109 and KAZEEM V. MOSAKU (2007) 17 NWLR PT. 1064 P. 523. The contradiction between the Respondent?s oral evidence and what is contained in Exhibit A is fatal he argued and in support, cited the cases of ODUTOLA HOLDINGS LTD. V. LADEJOBI 2006 12 NWLR PT. 994 P. 321 and EKWEOZOR V. REG. TRUSTEES S. A. C. N. 2014 16 NWLR PT. 1434 P. 433. Consequently, he submitted that, the land in dispute was not ascertained as
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there were four different sizes in reference to it, 100 x 200 sq meters, 200 x 100 ft, 4436. 527 sq. mts or 200feet by 50 ft. The order of injunction ought not to have been granted and the case of the Respondent should have been dismissed, he added and cited in support the case of UKAEGBU V. NWOLOLO (2009) 3 NWLR PT. 1127 P. 194.
He argued that, the Court was wrong to have awarded the sum of ?500,000.00 (Five Hundred Thousand Naira) as general damages for the alleged willful damage by the Appellant which is a criminal offence that needed proof beyond reasonable doubt and cited in that regard the case of ENILOLOBO V. ADEGBESAN (2001) 2 NWLR PT. 698 P. 611. That, there were no Exhibits tendered except the ID 1-7 which were not admitted as Exhibits and cited in support the case of D?ALBERTO LTD. V. AKINTILO (2003) 9 NWLR PT. 824 P. 49.
He submitted that, the Appellant from his evidence and that of his witnesses proved his entitlement to sue the Respondent for trespass to the four plots of land in dispute and in support, cited the case ofMAISHANU V. ANCHAU (2008) 6 NWLR PT. 1084 P. 565. That, the Respondent failed to challenge the said evidence and
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therefore admitted same and cited in support, the case of GAJI V. PAYE (2003) 8 NWLR PT. 823 P. 583.
In conclusion, the learned Counsel urged this Court to consider the said Palace Judgment, allow the appeal, set aside the judgment of the Court below and dismiss the Respondent?s Counter-claim.
RESPONDENTS SUBMISSION
The learned Respondent?s Counsel, Mr. Okeya Esq. contended that, Exhibit A was tendered as proof of purchase from the Odofin family to the Respondent?s father and being relevant and consistent with the pleadings, it was admitted. He cited in support the cases ofOYETUNJI V. AKANNI (1986) 5 NWLR PT. 42 461, MUSA ABUBAKAR V. E. I. CHUKS (2008) ALL FWLR PT. 408 207, ELIAS V. DISU (1962) 1 ALL NLR 214 and BENJAMIN V. KALIO (2018) 15 NWLR PT. 1641. With respect to Exhibit B, he argued that, Sections 146 (1) and (2) of the Evidence Act 2011 is applicable to the effect that Exhibit B is authentic. That, the location of the land is not in dispute, the parties had no difficulty in identifying the land in question and that it was too late in the day for the Odofin family to complain about the document which is about 45
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years old. Further that, Exhibit C, which is the Survey plan of the four (4) plots by his father and the other four (4) plots he bought, together with Exhibits A and B are not contradictory. He submitted that, the three essential ingredients of a valid sale are found in the Respondent?s case as there was payment of purchase price, possession given and there were witnesses thereto. In support, he cited the case of CHABASAYA V. ANWASI (2010) 6 SCM 30.
The learned Counsel submitted that, the Appellant did not controvert the Respondent?s evidence that the whole Odofin family accepted that the four plots of land belong to him by the production of documents of about 45 years old which could not be contradicted. He cited in support the cases ofEBUEKU V. AMOLA (1988) 3 SCNJ PT. 11 207 and FASOGBON V. LAYADE (1999) 11 NWLR PT. 628 543. He argued that, the Appellant?s evidence of the original owner was not cogent and compelling enough to entitle him to the declaration he sought and cited in support, the cases ofELIAS V. OMO BARE (1982) ALL NLR 70 and NWOKIDU & ORS V. OKANU & ANOR (2010) 1 SCM 126. He submitted further that, the Respondent
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equally showed possession apart from the documentary evidence and in support cited the case of SKYE BANK V. AKINPELU (2010) 4 SCM 208, SAPO & ANOR V. SUNMONU (2010) 6 SCM 204. He submitted that, the Appellant was unable to show better title to the disputed land and that his witnesses, CW2 and CW3 both attested to the fact that the Respondent showed receipt as proof of ownership of the land to the Odofin family. He added that, that was solemn admission of the Respondents position and cited the cases of IKENI V. EFAMO (1996) 5 NWLR PT. 446 64, ADEYEYE V. AJIBOYE (1987) 3 NWLR PT. 432, GAJI V. PAYE (2003) FWLR PT. 163 1 and DAGGASH V. BULAMA (2004) 14 NWLR PT. 892 144.
In conclusion, he urged that the appeal be dismissed.
THE POSITION OF THE COURT
The singular Issue as amended and adopted shall be reproduced hereunder for ease of reference thus:
THE SOLE ISSUE
Whether from the pleadings and available evidence on Record, the learned trial Court was right to have dismissed the Appellant?s claims and granted the Respondent?s reliefs and whether or not by the reliance on the exhibits A, B and C, there was miscarriage of justice.
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I have very carefully considered the Record before this Court, particularly, the decision of the Court below, and the briefs filed by both sides. Having so very carefully done, I proceed to determine the only Issue herein.
The Courts over time, with regard to issue of ownership and title to land, have continued to guide and assist themselves with five (5) recognized methods of proving ownership as enunciated in the locus classicus case of IDUNDUN V. OKUMAGBA 1976 6-10 SC 246, amongst several others, in pursuit of doing substantial justice on land matters. The five methods are as follows:
1. Traditional Evidence
2. Document of Title
3. Various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
4. Acts of lawful enjoyment and possession of the land and
5. Proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition, own the disputed land.
See also the cases of FASORO V. BEYIOKU (1988) 2 NWLR PT. 76 261, EZEOKE V. NWAGBO(1988) 1 NWLR PT. 72 616 and AUDU OTUKPO V. APA JOHN & ANOR.
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(2012) LPELR-SC 228/2011.
The foregoing stated methods of proof of ownership are separate and independent, such that establishment of one shall suffice for success in a claim. See the case of EKPO V. ITA (1932) 11 NLR 68. When a Claimant fails to establish one of the five (5) ways, he is not permitted to rely on long possession or any act of ownership to prove title. See the cases of BALOGUN V. AKANJI (1988) 1 NWLR PT. 79 301 and IBENYE V. AGWU (1998) 11 NWLR PT. 574 372. The apex Court per Kutigi JSC, as he then was, had this to say in that regard in the case of REGISTERED TRUSTEES OF THE DIOCESE OF ABA V. NKUME (2002) FWLR PT. 90 1270:
It is settled law that where a party?s root of title is pleaded as for e.g. grant a sale or conquest etc. that root of title has to be established first and any consequential acts following thereon can properly qualify as acts of ownership. Where the title pleaded has not been proved, then it will be unnecessary to consider acts of possession for the acts then become no longer acts of possession but acts of trespass.?
Proof of a matter in civil cases is long settled and firm that, it is
14
determined by the preponderance of evidence or the balance of probabilities. See the cases of IMANA V. ROBINSON (1979) 3-4 SC, DAODU V. NNPC (1998) 2 NWLR PT. 538 355, KALA V. POTISKUM (1998) 3 NWLR PT. 540 1. The Claimant who asserts has the onus of proof to present cogent and credible evidence otherwise, his case would fail and it does not matter whether or not the defence of the Defendant is weak. He must rely on the strength of his case and not the weakness of the defence. See the cases of IMAM V. SHERIFF (2005) 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE (1982) 2 SC P. 25 and AGBI V. OGBEH(2006) 11 NWLR PT. 990 P. 65. It is after such proof or establishment of his case that the burden shifts to the opposing party. See the cases ofDAODU V. NNPC (supra), KALA V. POTISKUM (supra), ITAUMA V. AKPE-IME (2000) 7 SC PT 11 24, ELIAS V. DISU (1962) 1 ALL NLR 214, LONGE V. FBN PLC. (2006) 3 NWLR PT. 967 P. 228 and a host of others.
Where declaration of title to land is being sought, such as the instant appeal, the onus was on the Appellant to establish his claim by preponderance of evidence, credible and cogent. As Claimant he therefore had to satisfy the Court below that, upon the
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pleadings and evidence adduced, he was entitled to the declaration sought. See further, the cases of ADEWUYI V. ODUKWE (2005) ALL FWLR PT. 278 1100, IRAGUNIMA V. RSHPDA (2003) FWLR PT. 169, CLIFFORD OSUJI V. NKEMJIKA EKEOCHA (2009) LPELR-2816 SC and SOLOMON ECHANOM V. MRS PHILOMENA OKOTIE & ORS (2011) LPELR-CA/B/247/2009.
In the first instance, it is pertinent to state that the need to ascertain the identity of the land in dispute from the Record clearly was not and could not have been an issue between the parties. Obviously, all the parties knew, were certain and were never in doubt or any confusion whatsoever as to the land in dispute, despite the mention of the four (4) other plots said to have been purchased by the Respondent from the Odofin family. In fact, from the Record on page 168 thereof, the Appellant stated thus:
?I am aware that the defendant has another four plots close to the four plots in question as he brought (sic) the four from the family.
One is unable to find from the foregoing and throughout the gamut of the Record that, the identity of the land in question was an issue. Therefore, the Appellant?s
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Counsels argument in that regard cannot hold. See also pages 174-177 and 194-196 of the Record.
The Appellant, from the Record as found by the Court, failed to lead evidence of partitioning of the family land he claimed by inheritance to his father or to himself. See page 261 of the Record. In my considered view and humbly, it was not sufficient, particularly in the face of the opposition and counter-claim of the Respondent, for the Appellant to not show beyond his averment by the balance of probabilities or preponderance of evidence, his entitlement to the four plots in issue. Merely claiming that the four plots were through his father and denying knowledge of the transactions of sale and confirmation of same to the Respondent did not help nor establish his case, given the evidence of his witnesses, CW2 and CW3. See pages 174-177 and 194-196 of the Record. The Appellant?s allegation and contention that, there was no receipt of the transaction with the Respondent or that the receipt was fake was never proven, see pages 167- 169 of the Record. As seen from the Record, he contradicted himself during cross examination when on page 168 of the
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Record he stated thus:
“?The defendant brought the receipt and showed it to us, I saw the receipt.
His claim that they were not aware of the said sale transaction was also self contradictory and was discredited by his own witnesses, CW2 and CW3. CW2 stated thus on page 195 of the Record:
.Late Francis Kayode was the former Odofin. I am aware he collected N5, 000 from the defendant in respect of the land in dispute.
I am aware that the father of the defendant was invited by our family and he showed the family the document with which he purchased the land.
CW3 stated as follows:
?I am aware that the family invited the father of the defendant to come and show the receipt with which he bought the land in dispute from Late Fagbuaro.
The Appellant himself on page 168 of the Record had this to say regarding the issue of the ownership claim by the Respondent:
I was not there when after the death of Odofin Fagbuaro, the defendant was advised by the (Elerebi) Benjamin to go and regularize the issue of the land of his father
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with the new Odofin and he was made to pay N5,000: But I heard of it.
Further on the same page he stated thus:
“I was at the meeting of the Odofin family when the head of the family asked the defendant to come and show the receipt of purchase given to his father. The defendant brought the receipt and showed it to us, I saw the receipt.
All the foregoing, in my view and humbly, assisted the Court below in reaching the decision that is being appealed against as it is supportive of the Respondent?s Counter-claim. From the proceedings, the evidence of the Respondent was not discredited with respect to the invitation by the Odofin family for verification of his ownership claim and that of his father to the four plots of land they testified were sold to them. There is no confusion or contradiction in the testimony of the Respondent given the reference to his other four (4) plots that made the eight (8) plots he stated. From the proceedings, it is clear and it did not impact negatively on his Counter-claim or the finding and decision of the Court below. The Respondent explained how he came about
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the other four (4) plots which he stated that he fenced together with the four (4) plots in issue to make eight (8). The Appellant himself on page 168 of the Record acknowledged the other four (4) as already mentioned. As correctly argued by the learned Appellant?s Counsel, the law does not permit anyone as well as the Respondent to orally seek to alter what is contained in a document, the best form of evidence. It needs be stated that, the non-registration of the receipt of purchase, Exhibit A, does not discredit the fact as correctly found by the Court that, indeed, there was transaction of sale of land between the Odofin family and the DW1, the Respondent?s father, in favour of the Respondent.
As afore stated and being the settled principle of law in civil matters in proof of a case, what is required is the balance of probabilities or preponderance of evidence. The fact of one single plot mentioned in Exhibit A, in my considered view, does not remove the probability of his ownership of the remaining three (3) plots to make four (4) plots claimed by the Respondent. There was preponderance of evidence in his favour apart from Exhibits A, B
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and C. His testimony and that of his father?s were not discredited and that of the Appellant?s earlier referred to which corroborated his. See the Court?s finding on page 261 of the Record. One is unable therefore, to find any miscarriage of justice occasioned to the Appellant herein. It is elementary to note that, proof of ownership expected from both the Respondent in support of his Counter-claim as from any Claimant for that matter, is not that beyond reasonable doubt.
In the light of the foregoing, one is unable to find any reason to disturb the position and the conclusion reached by the Court below. Therefore, this appeal, fails, it cannot be allowed. I hereby affirm the judgment of the Ekiti State High Court delivered by Hon. Justice C. I. Akintayo on March 7th 2016.
?
FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Elfrieda O. William-Dawodu, JCA.
The Claims of the Appellant at the lower Court were as follow:
A). N1 million naira general damages for the various acts of trespass committed, and still being committed by the
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defendant, his agents, lying, being and situate at Odofin family land at Oke Eyelori, Ado-Ekiti.
B). An Order of perpetual injunction restraining the defendant, by themselves, his agents, servants or privies from further committing acts of trespass on the claimant?s land.
(C). An order of Court vacating the defendant from the claimant?s land at Odofin family land at Oke Eyelori, Ado-Ekiti.
In a claim which bother on trespass to land and injunction to restrain acts of commission of trespass (as in this case on appeal), the issue of title to land in question becomes automatically an issue, hence the onus lies on the person seeking injunctive relief to prove his title. See OGUNDE vs. OJOMU (1972)4 SC 105; MOGAJI vs. CADBURY (NIG.) LTD (1985) 2 NWLR(Pt.7) 393; ODUKWE vs. OGUNBIYI (1998) 8 NWLR (Pt.561) 39; CARRENA vs AKINLASE (2008) 14 NWLR (Pt. 1107) 262.
In the bid to prove ownership or title to the land in dispute the claimant the Claimant or plaintiff must first establish the identity of the land he claims and thereafter proceed to his root of title. See ODICHE vs. CHIBOGWU (1994) 7 NWLR (Pt. 345) 78; OKE vs. EKE (1982) 12 SC 218.
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These 2 (two) elements go together, hand in hand such that where there is failure on the part of Claimant to establish any of the elements mentioned above, the plaintiff would also have failed to make out a case for himself.
I am in agreement with the reasoning and conclusion reached by my learned brother in the lead judgment.
I also do not therefore see any reason to disturb the conclusion reached by the lower Court. I hereby dismiss this appeal also. I thereby affirm the judgment of the lower Court delivered by Hon. Justice C. I. Akintayo on 7th March, 2016.
PAUL OBI ELECHI, J.C.A.: I agree
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Appearances:
T. Ogunmoroti Esq. with him T. Kolawole Esq., A. Adeleke Esq. and S. Oyebanji Esq.For Appellant(s)
A. Okeya Esq. with him S.C. Odofin Esq. and A.N. Akingbade Esq.For Respondent(s)
Appearances
T. Ogunmoroti Esq. with him T. Kolawole Esq., A. Adeleke Esq. and S. Oyebanji Esq.For Appellant
AND
A. Okeya Esq. with him S.C. Odofin Esq. and A.N. Akingbade Esq.For Respondent
