ALHAJI RASAKI ADISA OYEBANJI & ANOR v. ALHAJA KUDIRAT AKANBI
(2010)LCN/3855(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of June, 2010
CA/I/168/2008
RATIO
LAND LAW: WAY OF IMPROVING THE IDENTITY AND EXTENT OF LAND
It is the law that one of the ways of proving the identity and extent of the land claimed, is by filing a plan. PER CHIDI NWAOMA UWA, J.C.A
EVIDENCE: BURDEN OF PROOF; DUTY OF A PLAINTIFF TO SUCCEED ON THE STRENGHT OF HIS CASE
it is trite that a plaintiff must succeed on the strength of his case and not on the weakness of the defence, more especially where there is no counter claim, their duty is only to defend. See J. M. KODILINYE V. MBANEFO ODU (1935) 2 WACA 336 AT 337 and AWUZIE V. NKPARIAMA (2002) 1 NWLR PER CHIDI NWAOMA UWA, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI RASAKI ADISA OYEBANJI
2. MUSIBAU ADEROJU BALOGUN Appellant(s)
AND
ALHAJA KUDIRAT AKANBI Respondent(s)
CHIDI NWAOMA UWA, J.C.A (Delivering the Leading Judgment): The Appellants were the defendants in the lower court, the then 2nd Defendant having died during the pendency of the suit. The Respondent was the plaintiff and her claim before the lower court in her Further Amended Statement of Claim (page 34 of the printed records) is as follows:-
“(1) Declaration that the plaintiff is the person entitled to the grant of Statutory Right of Occupancy over the piece or parcel of land situate, lying and being Plot 2, Chief Olosunde Oladejo Awotunde Layout, Akobo Basorun Alegongo Area, Ibadan which is particularly described and delineated on Plan No.JAA/OY/573/88 dated 27/4/88 prepared by John Aigbe, Licensed Surveyor and Plan No.RADS/OY/DS07A/94 of 1/7/94 prepared by A. A. Adeyemi Licensed Surveyor.
(2) The sum of N1,000,000.00 being special and general agents and privies on the plaintiff’s land in 1992 which trespass is still continuing.
(3) An order nullifying and deleting from the register of deeds at Ministry of Lands and Housing, Ibadan the Certificate of Occupancy purportedly issued and registered in favour of the 3rd defendants (sic) by the Government of Oyo State over the plaintiffs land.
(4) Perpetual Injunction restraining the defendant by themselves, their agents, servants, privies whosesoever and howsoever called from remaining on, further remaining on or committing further acts of trespass on the said land.”
The background facts are that the Respondent as plaintiff in her further Amended Statement of Claim (paragraphs 5-8) pleaded that Aiku originally settled and farmed upon a vast area of land situate, lying and being at Alegongo Area, Off Olorunda Abaa Road, Ibadan and was survived by her children. The Descendants of Aiku family sold a large portion of the land settled by Aiku to Chief Oladejo Awotunde of Ode Aje Alase Ibadan and it was alleged that a land sale agreement was executed (Paragraph 8). Chief Awotunde took possession and made a layout into plots shown in Survey Plan No. RADS/OY/0507A/94, and sold some of the plots to various people including the Respondent.
On the other hand, the Appellants as defendants denied in their paragraph 1 of their Amended Statement of Defence the averments contained in paragraphs 5 – 10 of the Further Amended Statement of Claim, that the land in dispute ever formed part of Aiku family land but alleged that it formed part of Olatunbosun Family land, which family sold the land to the 1st defendant (Appellant) under Native Law and Custom, the 1st defendant (Appellant) in turn sold the land in dispute to the 3rd defendant now 2nd Appellant who later obtained a Certificate of Occupancy and later built on the land.
The Appellants contended that the Respondent did not call any member of Aiku Family to testify that the land in dispute was part of Aiku Family land and or that Aiku family sold any part of the land to Awotunde or the Respondent, while the Appellants called members of Aiku Family and Olatunbosun Family to testify that the land was originally part of Olatunbosun family land and not part of Aiku family land.
At the close of hearing the learned trial judge M. L Abimbola, 1 of the Ibadan Judicial Division of Oyo State High Court on 25th day of April, 2007 gave judgment in favour of the plaintiff now Respondent.
Dissatisfied with the judgment, the Appellants filed their Notice of Appeal dated 24/7/07 (pages 96-99 of the printed records) containing seven (7) grounds of Appeal from which three (3) issues were formulated for determination by this court. The issues are as follows:-
“(1) Whether the learned trial judge approached the consideration of the case correctly when he said that both parties and counsel agreed that Aiku family sold any land to Awotunde.
(Grounds 1, 3 and 6).
(2) Whether the learned trial judge was justified in rejecting the evidence of DW1 and DW4 and relying on inadmissible evidence in his consideration of whether the land in dispute was part of Aiku family land or Olatunbosun family land.
(Grounds 2, 4 and 5)
(3) Whether the learned trial judge properly evaluated the evidence on record in his judgment in the case.
(Ground 7).”
On her part, the respondent seemingly formulated three (3) issues for determination but, they were the same as those formulated by the Appellants, which are as follows:-
“(1) Whether the learned trial judge approached the consideration of the case correctly when he said both parties and counsel agreed that Aiku family sold any land to Awotunde.
(Grounds 1, 3 and 6).
(2) Whether the learned trial judge was justified in rejecting the evidence of DW1 and DW4 and relying on inadmissible evidence in consideration of whether the land in dispute was part of Aiku family land or Olatunbosun family land.
(Grounds 2, 4 and 5).”
(3) Whether the learned trial judge properly evaluated the evidence on record in this judgment in the case.
(Ground 7).”
The learned Appellants’ counsel Chief J. O. A. Ajakaiye Esq. adopted and relied upon his brief of argument dated 24/7/08 filed on the same day, when the appeal was argued. We were urged to allow the appeal and dismiss the Respondent’s claim in its entirety.
On behalf of the Respondent, O. Adams Esq. adopted and relied upon his brief of argument dated 15/10/08, filed on 16/10/08 but deemed as properly filed on 13/1/09, we were urged to dismiss the appeal.
In arguing his first issue, the learned Appellants’ counsel submitted that the Respondent did not lead evidence to prove the traditional history of Aiku family who he claimed first settled on the land in dispute, having pleaded that Aiku sold to Awotunde who sold to her. Reference was made to the evidence of PW.1 (Wahab Awotunde Olosunde) as the only evidence of sale by Aiku family to his father Awotunde who was said to have bought six (6) acres of land from Aiku, there was a written agreement which Aiku family was said to have signed to that effect, page 41 lines 25-28, 43 lines 27-31 of the printed records.
Similarly, that the Respondent as PW5 (Alhaja Kudirat Akanbi) did not give evidence of the traditional history of Aiku Family concerning the land in dispute.
Further, that the burden of proof is on the Respondent to establish her claim having sought a declaration of title, not the Appellants, that is, the Respondent ought to establish the ownership of the land in dispute by the Aiku Family, since the Appellants claim that the land in dispute was originally that of Olatunbosun family who sold to the 1st Appellant who in turn sold to the 2nd Appellant.
See BELLO v. EWEKA ri98H 1 SC 101 AT 102-105 AND 121 – 122; ELIAS v. OMO-BARE (1982) 5 SC 25 AT 47 and ONIBUDO v. AKIBU (1982) 7 SC 60 AT 84-85.
It was argued that the evidence of PW4, the head of Olatunbosun family and the DW1 a member of Aiku family supported the case of the Appellants that the land in dispute originally belonged to Olatunbosun family who sold to the Appellants. Further that the evidence of PW2 and PW3 are theoretical and not factual, that such evidence ought not to have been utilized by the learned trial court, and the claim of the Respondent ought to have been dismissed having been unable to prove her root of title, that is, that the land in dispute was part of Aiku family land which was sold to her. Reliance was placed on the case of OYADARE v. KEJI & ANOR. (2005) 123 LRCN 17 AT 32.
It was the argument of the learned counsel to the Appellants that the learned trial judge having found that from the evidence of the PW1 that there was no clear evidence on the demarcation or extent of the boundary of his father’s purchase, and the trial court ought to have dismissed the claim.
The Appellants’ issues two and three were argued together.
The learned Appellants’ counsel adopted his argument in respect of issue one and in addition submitted that the learned trial judge was in error when he held at page 84, lines 23-25 of the record that the parties are ad idem as to the fact that Aiku family sold land to Chief Awotunde which forms boundary with Olatunbosun family land bearing in mind the denial of same in paragraph 1 of the amended statement of defence and the evidence of DW1 (Lukman Kareem) at page 56 of the records, also referred to was the evidence of DW4, page 62 of the records. It was submitted that\the learned trial judge was wrong to conclude that the Respondent need not prove that Aiku Family sold the land in dispute to Awotunde, reliance was placed on the case of KATE ENTERPRISES LTD. v. DAEWOO NIG. LTD. (1985) 2 NWLR (PART 5) 116 in urging us to properly evaluate the evidence before the court and to take a proper decision. Also relied upon are the cases of KINDLY V. THE MILITARY GOVERNOR OF GONGOLA STATE f 19881 5 SC 46 AT 84, AKIBU V. OPALEYE (1974) 11 SC 189 AT 202 – 203 and OMOREGBE V. LAWANI (1980) 3 & 4 SC 108 AT 117 – 118.
We were urged to allow the appeal, set aside the judgment of the trial court and dismiss the plaintiff’s claims in its entirety. The learned Respondent’s counsel in arguing his issue one submitted that the Respondent’s claim as plaintiff is as averred in paragraphs 5, 8, 9, 10 and 10b of the Further Amended Statement of Claim. It was argued that the Appellants in their Amended Statement of Defence did not specifically deny the averment in paragraphs 5, 8, 9, 10 and 10b above by giving contradictory facts to the effect that Aiku did not sell any portion of their land to Awotunde. Reference was made to paragraph 11 of the Amended Statement of Defence which was argued affirmed that Olatunbosun had a common boundary with the Aiku family land in their testimony in Suit No. 1/180/81, Exhibit ‘K’.
It was argued that the evidence of PW1 and Exhibit W showed and proved that Awotunde bought land from Aiku family who in turn sold to the plaintiff. Further that Where was no evidence to contradict the fact that Aiku sold a portion of his land to Awotunde from whom the Respondent derived her title. It was submitted that the evidence of the Respondent (PW5) and PWl (Awotunde’s son) corroborated the sale of the land in dispute to Awotunde by Aiku family, who later sold to the respondent. (Pages 51-54 of the printed records). Reliance was placed on the following cases:- NIGER-BENIN TRANSPORT CO. LTD. v. OKEKE (2005) ALL FWLR, (PART 256) PAGE 1286: UNIBIZ NIGERIA LTD V. COMMERCIAL (CREDIT LYONNIAS NIGERA) BANK LTD. (2005) ALL FWLR (PART 267) 1378.
Learned counsel to the Respondent stated the position of the law in submitting that a valid sale of land under customary law, requires the payment of money and delivery of possession of the land and referred to the following cases:- AKINTERINWA V. OLADUNJOYE (2000) 6 NWLR (PART 650) PAGE 92 AT PAGE 115r PARAGRAPH R It was contended that the Respondent (PW5) proved her root of title, PW1 (Awotunde’s son) having given evidence to the effect that his father bought land from Aiku family which the Appellants did not contradict in evidence, and that in the layout (Exhibit XK’) plot 2 falls within Aiku family land.
The evidence of the PWl was reviewed as well as Exhibits, ‘A’, ‘B’, ‘C’ ‘E’, ‘H’, and ‘K’. Also reviewed was the evidence of PW2, PW3 and PW4 in concluding that the land in dispute belongs to the Respondent, having also tendered Exhibit ‘C’ the Survey Plan No. JAA/573/88 while DW2 had no survey plan and had no building on the land in dispute but, tendered Exhibit ‘N’ (Certificate of Occupancy with a survey plan attached) which learned counsel submitted the pillars are not the same as in Exhibit ‘C’, it was argued that a piece of land cannot have two different survey plans with different pillar numbers. It was argued that the survey plan in Exhibit ‘N’ was made in 1992 while Exhibit ‘N’ was procured in 1995 during the pendency of this matter in the lower court while Exhibit XC was made in 1988.
We were urged to disregard the evidence of DW1 who claimed to be a descendant of Aiku -family who did not know the features on the land adjacent to the land in dispute, similarly, to discountenance the evidence of the DW2 as he could not tell the estimated distance as expert between pillars No.YF5143 with peg 2 as shown on Exhibits E and E1. We were urged to disregard also the evidence of DW3 who could not tell the court the origin of Exhibit ‘O’ allegedly tendered to confuse facts as contained in Exhibits ‘E’, ‘E1″, ‘C1’, ‘C2’ explained in Exhibit ‘D’ – the
report of the compass survey of the land in dispute.
We were urged to resolve issue one in favour of the Respondent as shown in Plan No.JAA/OY/573/88, as belonging to the Aiku family land from which the Respondent as plaintiff traced her title. The learned counsel to the Respondent also argued his second and third issues together in response to those of the Appellants. It was submitted that the trial judge was right not to have relied upon the evidence of DW1 (page 56, lines 15-30 of the Records). Further that the evidence of DW2, DW3 and DW4 were contradictory as to the proper location of the land in dispute, and that the evidence rather supports the case of the Respondent as plaintiff. The following cases were cited and relied upon: ENO V. ANI (2004) 3 NWLR (PART 861) PAGE 619 PARAGRAPH 15: MORONIKEJI v. ADEGBOSIN (2003) 8 NWLR (PART 238) PAGE 612 AT 618 PARAGRAPH 7; ALHAJI KARIMU IBIKUNLE v. ALFA LIASU LAWANI & OR. (2007) 3 NWLR (PART 1022), PAGE 580 AT 584: KALIO V. KALIO (2005) 4 NLWR (PART 915) PAGE 205.
It was further argued that the evidence of PW3 at page 47 of the records shows that plot 2 the subject matter of dispute is within Aiku family land (by Exhibit ‘E’ in contrast to Exhibit ‘2’) sold to Awotunde.
It was argued that the Respondent (PW5) traced her title to Awotunde who bought from Aiku and tendered documents evidencing the various sales beginning from Aiku family. The learned counsel agreed that there are five ways by which title to land can be proved and that the Respondent has done so by the various Exhibits tendered in evidence. Reference was made to the following cases: AYORINDE v. KUFORIJI (2007) 4 NWLR (PART 1024) PAGE 341 AT PAGE 367 PARAGRAPHS D – F: and KALIO v. KALIO (2005) NWLR (PART 95), PAGE 205.
We were urged to discountenance the Appellants’ second issue and dismiss same with the grounds from which the second issue was formulated.
In support of his third issue the learned counsel submitted that Exhibit ‘K’, the judgment in suit No. 1/180/81 tendered by consent in the lower court proved the title of Aiku family land and history which needed no further proof. It was contended that once a party has traced his title to a party whose ownership in a previous case is established therein it is enough, it is therefore not necessary for Chief Awotunde or the plaintiff to prove the ownership of Aiku family, See BUNYAN VS. AKINGBOYE (2001) FWLR (PART 41) 1977 AT 1980. It was submitted that the learned trial judge was right to have held that the respondent as plaintiff succeeded in proving the extent and identity of the land in dispute as being Aiku Family land and that the evidence of PW3 and Exhibit ‘E’ properly identified the land in dispute. We were urged to dismiss the Appeal.
The issues as raised by the parties are similar for the determination of this appeal, I will therefore resolve same as raised and argued by the Appellants, to which the Respondent responded to accordingly.
In respect of issue one; the Appellants are challenging the holding of the learned trial court that both parties and counsel agreed that Aiku Family sold any land to Awotunde. In paragraph 8 (page 65 of the records) of the Further Amended Statement of Claim, the plaintiff (Respondent) pleaded as follows:-
“8. Descendants of Aiku family sold a large portion of the land settled upon by Aiku to Chief Oladejo Awotunde of Ade Aje Alase Ibadan. A land sale agreement was executed in his favour. The agreement is hereby pleaded.”
While in their Amended Statement of Defence, the defendants (Appellants) pleaded at page 70 of the records as follows, in paragraph 10:
“10. With reference to paragraphs 5-14 of the Further Amended Statement of Claim, the Defendants deny that the land in dispute ever belonged to Aiku Family.”
(Underlining mine for emphasis)
From the above paragraph 10, the defendants (Appellants) denied that the land in dispute ever belonged to the Aiku Family. A sale by Aiku family to Awotunde could therefore not have been agreed upon as held by the learned trial judge at page 85 of the printed records.
From the evidence adduced, the Respondent claimed that one Aiku, a farmer was the original settler on the land in dispute, who on his death, his descendants sold to Awotunde who sold to the Respondent. The evidence of sale relied upon was that of PW1 (Wahab Awotunde Olosunde) Awotunde’s son who testified to the effect that his father purchased six (6) acres of land from Aiku and that there was a land Agreement which Aiku family members signed (page 41 of the records).
Further at pages 43 – 44 of the printed records, that the plan of the portion sold to his father was only a sketch, the PW1 stated thus:
“Exhibit ‘B’ is not drawn to scale. It is only a temporary layout. It is a drawn sketch which shows the area where the land is situate. On this land my father just instructed the surveyor to make a sketch to know whether the land claimed to be sold is correct.”
The Respondent testified as PW5, the burden is on her to establish her claim to declaration of title, not the Appellants as defendants who did not, in the present case counter claim. The Respondent did not lead evidence in support of her pleadings to establish that the land in dispute originally belonged to the Aiku Family. In fact the Appellants as defendants denied any sale of land by Aiku to which the land in dispute forms part of to Awotunde or the plaintiff.
The Appellants rightly argued that the Respondent failed to establish such sale by failing to call any member of Aiku family to testify in proof of sale by Aiku family of any land, in particular, the land in dispute to Awotunde. There was no survey plan before the court to show if any, what was sold to Awotunde by Aiku family; as opposed to the evidence of the Appellants who claimed that the land was originally that of Olatunbosun family before sale to the Appellants, as shown in the evidence of DW4 who testified to their family ownership of the land and sale to the Appellants. DW1 (Lukman Kareem) a member of Aiku Family also testified to the effect that the land in dispute belongs to Olatunbosun family who sold to the Appellants.
PW1 tendered Exhibit ‘A’ as evidence of purchase by his father following which a sketch was produced, Exhibit ‘B’ a supposed layout scheme. Exhibit ‘B’ was not signed and was not registered. The PW2 testified to the effect that the land in dispute on which he carried out a verification exercise fell within Aiku family land, reliance was placed on Exhibits ‘C’ and ‘C2′. Similarly, the evidence of PW3, a surveyor who produced and relied on Exhibit XE’ in concluding that the land in dispute fell within Aiku family land.
The learned trial judge at page 86 – 87 held thus:-
“The testimony of the plaintiff as PW5 is straight forward. She bought the land in dispute on plot 2 from Chief Awotunde who sold to him in the presence of witness and put her in possession and later executed Exhibit ‘H’ a receipt dated 25th January, 1981 for her, she stated that Chief Awotunde bought about 6 acres from the Aiku Family land and decided (sic) it into several Plot as a layout scheme, that after her purchase she prepared her property survey Exhibit ‘C’ and later caused a building plan which was approved on the land Exhibit 11 (1), (2)”, that she caused foundation pit to be dug preparatory to building which was refilled by the defendants ”
The Respondent (PW5) failed to call any witness from Aiku family to give evidence confirming sale to Awotunde who sold to her. The resultant effect is that the Respondent has not established her root of title through Awotunde. The learned trial judge reviewed the Respondent’s evidence before the trial court to the effect that the sale by Awotunde to her was in the presence of witnesses who put her in possession. These witnesses were not called to testify and their absence in course of trial was not explained. In my considered view, there was no evidence before the lower court to warrant or support the above holding.
The PW2 and PW3 only carried out a verification of the dispute plan used in an earlier suit by Latunbosun family in Suit No. 1/180/81 Exhibit ‘C’, they also utilized Exhibits ‘C1’ and ‘C2’, the verification exercise was of no value to the case of the Respondent. The accuracy or verification of a plan used in a previous suit cannot confirm Aiku’s title or prove sale to Awotunde or the portion sold to the Respondent. The question that arises is: has the Respondent proved her root of title to the effect that the land in dispute was part of Aiku family land? I am afraid she did not.
Even though the Respondent tendered Exhibit ‘H’ as a receipt of purchase from Awotunde but, has it been established that Aiku family who purportedly sold to Awotunde had exclusive right to the land in dispute to have sold to Awotunde? There was no evidence of any valid sale by Aiku family to Awotunde, and I so hold.
Also, the Respondent as plaintiff did not establish that the land in dispute falls within the family land of Aiku as opposed to the family land of Latunbosun.
At page 89 of the printed records, the learned trial judge after reviewing the evidence proffered by both parties held:-
“However, there is no clear evidence from PW1, on the demarcation or extent of boundary of his father’s purchase,”
The PW1 is the son of Awotunde who purportedly sold to the Respondent and was called to confirm the sale to the Respondent. The learned trial judge therefore acknowledged the fact that PW1 did not know the extent or boundary of the land purportedly purchased by his father. The inability of the PW1 to show the extent or boundaries of the land his father bought is fatal to the Respondent’s case. See AWOTE & ANOR. VS. OWODUNMI & ORS. (1987) 5 SC 1 AT 16, where it was held that:
“The onus is on a plaintiff asking for a declaration of title to show clearly the area of land to which his claim relates. See BARUWA v. OGUNSHOLA (1938) 4 WACA159 the plaintiff can do this by such oral description of the land that any Surveyor acting on such description can produce a plan of the land he claims – See KWADZO v. ADJEI (1944) 10 WACA 274.”
The learned trial judge rightly held that the onus is always on the plaintiff in a claim for declaration of title to establish with certainty the precise identity and extent of the land he claims, Page 89 of the records. In this case the PW1 made it clear in his evidence before the trial court that the plan of the land sold by Aiku to Awotunde was only a sketch, Page 43 of the records. There was no accurate survey plan of the land in dispute produced by the Respondent, showing the boundaries and the features on the land in dispute. See ADESANYA VS. ADERONMU (2000) 6 SC (PART 11) 18 AT 31 and UPOFIA VS. AFIA (1940) 6 WACA 216. In my considered view and in agreement with the learned counsel to the Appellants, the learned trial judge having stated the correct position of the law ought to have found that the plaintiff had failed to establish her’ claims and dismissed same. The learned trial judge with respect was in error not to have done so. See OTANMA VS. YARDUBAGBA (2006) 134 LRN 362 AT 380-382, 388. cited and relied upon by the learned counsel to the Appellants.
It is the law that one of the ways of proving the identity and extent of the land claimed, is by filing a plan.
In the present case the Respondent relied on the evidence of PW1 to prove her purchase of the land in dispute from his father, Awotunde. There was no plan showing the layout to which the land in dispute forms part of, to reflect the features of the land and the boundaries. The PW1 testified that there was only a sketch to show the area the land is situated. The sketch was neither signed nor registered to make matters worse, and the sketch worthless. It could not have helped the respondent’s case in any way. See UPOFIA & ANOR. v. AFIA & ORS. (SUPRA) UDEKWU AMATA v. UDOGU MODEKWU (1954) 14 WACA.
Contrary to the argument of learned counsel to the Respondent, evidence oral and/or documentary must be adduced to ascertain with certainty the boundaries, extent and identity of the land in dispute. See EMIRI VS. IMIEYAN (1999) 4 SC (PART 11) AT 16 and BASSIL VS. FAJEBE (2001) 4 SC (PART 11) 11A AT 130 -131. In the present case the Respondent did not prove the existing boundaries, the extent and/or even the particular portion she claims.
At page 40 of the records, the learned trial judge rightly held that it is the duty of the plaintiff to identify and prove the existing boundaries.
The Court held thus:
“it is for the plaintiff to identify and prove the existing boundaries and where none is identified and proved the court has no power to demarcate one. See IORDYE VS. IHIYAMBE (2000) 12 SC (PART 11) 126 AT 130.”
With the correct statement of the law above, the learned trial judge was in error to have held that the evidence of PW2, PW3 and PW4 was enough to have confirmed the extent of the land in dispute and the boundaries.
Further Exhibit ‘A’ ought not to have been relied upon as proof of sale by Aiku family as earlier stated in this judgment, since execution of same by Aiku family was not proved by the Respondent. The identity of the land in Exhibit W could not have been confirmed by a sketch as given in evidence by PW1.
At page 84 of the printed records, the learned trial judge in reviewing the submissions of counsel observed that the parties were ad idem as to the fact that Aiku family sold land to Chief Awotunde which formed boundary with Olatunbosun family land. This view was denied in paragraph 1 of the amended statement of defence (page 70 of the records) and the evidence of DW1 (Lukman Kareem) at page 56 of the records where he denied that the land in dispute forms part of Aiku family land. Part of DW1’s evidence states:-
“My name is Lukman Kareem I belong to the Aiku family. I know the plaintiff in this case and also the defendants. I know the land in dispute at Alegongo area Ibadan. My family land abuts the land in dispute. It is not part of our family land. I know the family that owns the land. The land is owned by the Tunbosun family Our Mogaji is Yesufu Adeagbo Babalola, he is now very old and instructed me to represent him in court. I know the Tunbosun family I now say that the land in dispute does not belong to Aiku family.”
The DW4 similarly gave evidence contrary to the deduction of the learned trial judge, to the effect that the Aiku family land is different from the land in dispute. DW4’s evidence at page 62 of the records went thus:-
“I live at Tunbosun compound Ita Bale I am the Mogaji of Olatunbosun family I know the land in dispute. This land belonged to Tunbosun family originally. We had a dispute on this land and we won the case. The case is between my family and Akinrinmade and others. We drew a plan of the entire family land in that case. One of the boundary men is Aiku family and railway line. The Aiku family gave evidence in our favour in that case. We have sold the land in dispute to the 1st defendant. There was never a boundary dispute between Aiku and our family.”
From the testimony of DW1 and DW2, the defendants did not on record agree that Aiku sold any land to Awotunde and did not admit that the land in dispute ever belonged to Aiku family but, Olatunbosun family to which they are part of. The burden remained that of the Respondent to prove that Aiku family sold the land in dispute to Awotunde, this burden was not discharged by the Respondent and was therefore not entitled to the claims.
It is glaring that the Respondent as plaintiff did not establish that the land in dispute originally belonged to Aiku family; the PW2, PW3 and PW4 were not in a position to establish that the land of which the plan was verified in respect of a previous suit belonged to Aiku family. Their evidence ought not to have been relied upon which the learned trial judge preferred to that of DW1 and DW4 who are family members of Aiku and Olatunbosun respectively.
The Respondent not having been shown to be in exclusive possession of the land in dispute ought not to have been entitled to special and general damages. It was not proved that the Appellants trespassed into land belonging to the Respondent.
The execution of Exhibit W as earlier stated in this judgment was not established, only a sketch Exhibit ‘B’ which was unsigned, the learned trial judge rightly held at page 89 of the records that an unsigned document has no efficacy in law, see OMEGA BANK NIG. PLC. VS. O.B.C. LTD. vs. O.B.C. LTD. (2005) 1 SC. PART 149 AT 74 but the learned trial judge still relied on the same Exhibit ‘B’ and held that the PW1’s evidence that his father after purchase of the vast area of land divided same into plots as a layout scheme, was not challenged by the defence and erroneously accepted same as established, which was mentioned by PW1 as a layout plan to give Awotunde an idea of what he said he bought. There was no survey plan to show specifically Awotunde’s land from which he purportedly sold part of, to the Respondent, except Exhibit ‘B’ ‘the sketch.
The learned Respondent’s counsel had argued that the Defence witnesses contradicted themselves;
it is trite that a plaintiff must succeed on the strength of his case and not on the weakness of the defence, more especially where there is no counter claim, their duty is only to defend. See J. M. KODILINYE V. MBANEFO ODU (1935) 2 WACA 336 AT 337 and AWUZIE V. NKPARIAMA (2002) 1 NWLR 25th April, 2007 in Suit No. 1/292/94 is hereby set aside.
I award costs of N40,000.00 (Forty thousand Naira) in favour of the Appellants.
STANLEY SHENKO ALAGO, J.C.A.: I have had the privilege of reading in advance the lead judgment delivered by my learned brother, Uwa J.C.A. I agree with the reasoning and conclusion that the appeal has merit and should be allowed. I allow same and abide by the consequential orders made therein including the order on costs.
SIDI DAUDA BAGE, J.C.A. I have read before now the judgment just delivered by my learned brother C.N.Uwa,J.C.A.
I entirely agree with the reasoning and the conclusion reached. The appeal succeeds and is allowed by me.
I abide by all the consequential orders made in the said lead judgment including the order of Costs.
Appearances
Chief J. O. A. AjakaiyeFor Appellant
AND
O. Adams Esq.For Respondent
