ALHAJI OSENI ADEBOLA & ANOR v. PA. EMMANUEL ADEBAYO ONI & ORS
(2019)LCN/13629(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of July, 2019
CA/AK/179/2014
RATIO
LAND LAW: DECLARATION OF TITLE TO LAND: A PARTY CLAIMING MUST ESTABLISH THE IDENTITY OF THE LAND AND PROCEED ON THE STRENGTH OF HIS CASE
The law is that for a party seeking a declaration of title to land and injunction thereon, must establish to the satisfaction of the Court the identity of the land in dispute and he must succeed on the strength of his own case and not on the weakness of the defendants case. See AGBOOLA V. UBA PLC. (2011) 11 NWLR (PT. 1258) 375; ADDAH V. UBANDAWAKI (2015) LPELR 24266 (SC) and TUKURU V. SABI (2013) LPELR 20176 (SC). PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
LAND LAW: WHERE THE CASE OF THE DEFENCE SUPPORTS THE PLAINTIFFS CASE
However where the case of the defence supports a plaintiffs case the latter benefits from the weakness of the defence. See EYO V. ONUOHA (2011) 11 NWLR (PT. 1257) 1. PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
LAND LAW: THE PERSON CLAIMING DECLARATION OF TITLE TO LAND MUST PROVE THE IDENTITY OF THE LAND AND ITS BOUNDARIES
The claimant must prove the identity of the land and it boundaries with certainty, in other words, there must be definite and precise boundary of the land. See ISEOGBEKUN V. ADELAKUN (2012) LPELR (15516) (SC); AWODI V. AJAGBE (2014) LPELR 24219 (SC). PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
LAND LAW: DECLARATION OF TITLE TO LAND: THE BURDEN OF PROOF MAY BE DISCHRAGED BY ORAL DESCIPTION OR SURVEY PLAN
The burden can be discharged by oral description of the land or by a survey plan showing clearly the area to which the claim relates. See IDEHEN V. OSEMWENKHAE (1997) 10 NWLR (PT. 525) 358; AIYEOLA V. PEDRO (2014) LPELR 22915 (SC). PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
LAND LAW: DECLARATION OF TITLE: IDENTIFYING THE LAND CAN BE ESTABLISHED BY IDENTIFYING BOUNDARIES
The issue of identity of the land can be established by identifying the boundaries features or marks and the boundary men with whom the claimant shares the boundaries which are usually established by calling evidence of the claimant and those who share common boundaries with the said land. PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
LAND LAW: DECLARATION OF TITLE TO LAND: WHERE THE IDENTITY OF THE LAND IS WELL KNOWN TO THE PARTIES
The identity of the land in dispute is well known to the parties and where the area of the land in dispute is well known to the parties, as in the instant case, the proof of the identity of the land does not arise, this is because the parties knows the portion of the land in dispute. See ANAGBADO V. FARUK (2018) LPELR 44909 (SC). PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
LAND LAW: DECLARATION OF TITLE: SURVEY PLAN NOT NEEDED WHEN THE IDENTITY OF LAND IS NOT IN DISPUTE
A survey plan is not necessary where the identity of the land is not in dispute or there is cogent evidence of the identity of the land as in the instant case. An oral evidence of the description of the situation of a land in dispute will serve as sufficient proof of identity and dispense with the need to tender a site plan. See ATANDA V. ILIASU (2012) LPELR 19662 (SC); AYUYA V. YONRIN (2011) LPELR 686 (SC). PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
COURTS: THE LANGUAGE OF THE COURT
Let me state that the language of the Court is English, if document written in any language other than English Language is to be tendered, they must be duly translated into English by the party seeking to rely on it in evidence. PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE: A PARTY RELYING ON A DOCUMENT TO SUPPORT HIS ARGUMENT MUST PRODUCE IT IN COURT
Where a party relies on a document in supporting his argument he should produce it to the Court. Though the Appellants herein pleaded the proceedings of Olokinni in council but it was not tendered. The law is that only documents tendered as exhibits are evidence before the Court, the Court cannot rely on evidence on the contents of a document that is not before it. The Court cannot speculate on contents of a document not produced before it. See ANYANWU V. UZOWUAKA (2009) LPELR 515 (SC); WASSAH V. KARA (2014) LPELR 24212 (SC); UDO V. STATE (2018) LPELR 43707. PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
JUSTICES:
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI OSENI ADEBOLA
2. MR. ADEBAYO YAYA (DECEASED) – Appellant(s)
AND
1. PA. EMMANUEL ADEBAYO ONI (BAALE)
2. CHIEF JONATHAN ABIOYE (EESA)
3. MR. ISAAC OMOKEHINDE ONI
4. MR. YEKINNI BABATUNDE OGUNNIYI – Respondent(s)
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Osun State sitting at Ede Judicial Division (hereinafter called the lower Court). delivered by Hon. Justice A. A. G. Onibokun on 28th day of April, 2014 in Suit No: HED/13/2012. The Respondents as Plaintiffs before the lower Court filed a Wit of Summons alongside the Statement of Claim dated and filed on 19th day of April, 2012. By paragraph 24 whereof the plaintiffs claim against the defendant as follows:
1. Declaration that the piece or parcel of land situate, lying and being at Oke Elegudulobedu Okinni, Egbedore Local Government Area, Osun State of Nigeria and bounded by
i. Elegudu/Obedu Streams.
ii. Akoguns family land.
iii. Bamgbola’s family land.
iv. Modele’s streams.
2. The sum of One Million Naira being general and special damages for trespass committed by the defendants on the said parcel of land.
3. Perpetual injunction restraining the defendants, their servants, agents or privies from committing further acts of trespass on any portion of
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the said land
4. In proof of their case, the Respondents as claimant called five witnesses and tendered no Exhibit. In their defence, the Appellants as defendants called four witnesses and also tendered no Exhibit.
The case of the claimants is that they are members of Eesa’s compound Okinni and that they are the owners of a vast expense of land which is yet to be partitioned. That Amore is the founder of Eessa’s compound who has two wives and many children and after the demise of Amore, Odundeyi became the Eesa of the town, upon the demise of Odundeyi, Aisemi became the Eesa. The claimant narrated their lineage down to the 2nd claimant herein. That during the reign of Oso One Madam Olaolokun from Akinwales compound in Okinni came to beg for a small portion of land within Eesaa compound to brew sekete which was given to her and built thereon. That the land belongs to Eesa family and it has not been partitioned or granted to anybody. That the land given to Olaolokun by Oso did not extend to Oke Elegudu/Obedu where the Olaolokun descendents are claiming. On the part of the Appellants as defendants, the Appellants admits the lineages
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of the respondents as stable by them but that none of the claimants predecessor cultivated the land in dispute. That madam Efunwumi is the original owner of the land in dispute. Efunwumi is the blood sister of Eesa Osho (Oso) and she was married to Olaolokun a native of Okinni from Akinwale’s family. That Eesa Osho gave Efunwumi parcel of land at Ile Isale Odo for her sekete business and upon the arrival of her husband Olaolokun they live on the parcel of land given to her by her elder brother Eesa Osho. That when they start having children she requested for more land from Eesa Osho, he gave her a larger tract of land in present of other members of the family. That the land in dispute is the land granted to her and she leases some part of the land to tenants and pays tributes, and sold some part. That after the demise of Efunwumi, the land in dispute devolves on her children that ever since Eesa Osho granted the land to Efunwumi over 200 years nobody disturbed them. That not until 1986 when the plaintiffs started disturbing them. The Olokini in council intervened and pleaded the proceedings of Olokinni in council.
The lower Court in a considered
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judgment delivered on 28th day of April, 2014 found at pages 119-145 of the main Record, granted the reliefs sought by the Claimants/Respondents.
Dissatisfied with the judgment, the appellant filed a notice of appeal on 10th July, 2014, found at pages 146-148 of the record and urged this Court to allow the appeal and set aside the judgment of the trial Court delivered on 28th April, 2014.
Thereafter, the parties filed and exchanged their briefs of argument in line with the rules governing the hearing of civil appeals in this Court. The appeal was heard on 9th April, 2019.
During the hearing of the appeal, learned counsel for the Appellant B. Shiyanbola Esq. for the Appellants adopted the Appellants brief of argument as representing his arguments for the appeal. He urged the Court to allow the appeal. Learned counsel for the Respondents S. A. Gbenle, Esq. adopted the respondents briefs of argument as his reaction against the appeal. He urged the Court to dismiss the appeal. In the Appellants brief of argument, the Appellants crafted three issues to wit:
1. Whether the learned trial judge was right in granting the
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declaration of title in favour of the Plaintiff/Respondent despite the fact that the identity of the land in dispute and its size were not proved by the Plaintiff/Respondent.
2. Whether the learned trial judge was right in granting the declaration of title in favour of the Plaintiffs/Respondents when the Plaintiffs/Respondents have not satisfactorily established the right of title.
3. Whether the failure of the learned trial judge to consider the previous customary adjudication on the land in dispute which awarded the land in dispute in favour of the Defendants/Appellants is not fatal to the Plaintiffs/Respondents case.
Learned counsel for the Respondents, in his brief equally distilled three issues for determination as follows:
1. Whether learned trial judge was right in granting the declaration of title in favour of Plaintiffs/Respondents after the identity of the land in dispute and boundaries were given by the Plaintiffs/Respondents.
2. Whether the learned trial judge was right in granting the declaration of title in favour of the Plaintiffs/Respondents after the root has been satisfactorily established.
3. Whether it was
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right for the trial judge to consider the previous customary adjudication on the land in dispute when such adjudication was never tendered in evidence apart from the fact that it was not translated into the language of the Court.
A look at the two sets of issues shows that they are identical in substance. I will therefore decide the appeal on the three issues formulated by the Appellants, the owners of the appeal.
ARGUMENTS ON THE ISSUES
ISSUE ONE
In arguing this issue one, learned counsel for the Appellants submitted that in an action for declaration of title, the plaintiff must succeed on the strength of his own case and not on weakness of the defence. He cited KODINLINYE V. MANENET ODU (1935) 2 NACA 334; OKE V. EKE (1982) 12 SC 218 and ADONE V IKEBUDU (2001) 14 NWLR (PT. 733) 385.
He submitted that in considering the plaintiffs title to land, he must first establish with satisfactory evidence the identity of the land on which the declaration is sought. That if the identity of the land is not proved with certainty, the plaintiffs case will be dismissed and it will be unnecessary for the Court to consider the root of tile on
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which the defence of the defendants is based. He cited UKAEGBU V. NWOLOLO (2009) 3 NWLR (PT. 1127) 194 for the view.
Counsel argued that it was unfortunate that the Plaintiffs neither give an oral account of the identity/size of the disputed land nor tender a survey plan to show the area, size and boundary of the land. Thus, said counsel, cast serious doubts on the claims of the plaintiffs.
He argued further that the proper test for determining proof of identity of land in dispute a
