ALHAJI SAIBU GBADAMOSI v. MR. OKEGE & ORS
(2010)LCN/3856(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of June, 2010
CA/I/121/04
RATIO
LAND LAW: WAYS OF PROVING TITLE TO LAND
The five ways by which a claimant may prove title to land have been equally well settled by the Supreme Court in the case of Idundun v. Okumagba (1976) 9 – 10 SC 227. They are:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By, acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
LAND LAW: TITLE TO LAND; WAYS OF PROVING TRADITIONAL HISTORY
Where a claim for declaration of title is based on traditional history, the claimant must plead and lead evidence to establish the following:
a. Who founded the land;
b. How the land was founded; and
c. Particulars of intervening owners.
See: Alli v. Aleshinloye (20001 4 SCNJ 264 at 284 – 285; Mogaji v. Cadbury Nig. Ltd. (supra); Elegushi v. Oseni (2005) 14 NWLR (9451 348: Ohiaeri Vs Akabueze (1992) 2 NWLR (221) 1; Alikor v. Ogwo (2010) 5 NWLR (1187) 281 at 309 D – F.
The Supreme Court held in Alli Vs Aleshinloye (supra) that in relying on traditional evidence it is not sufficient to merely prove that the claimant or his predecessors in title had owned and possessed the land in dispute from time immemorial. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
LAND LAW: WHETHER A TRESPASSER IN POSSESSION CAN SUE ANOTHER TRESPASSER
The law is that a person in possession of land, even as a trespasser can sue another who thereafter comes upon the land unless that other is the owner or shows some title that gives him a better title to be on the land. See: Aromire v. Awoyemi (1972) 2 SC 182; Amakor v. Obiefuna (1974) 1 All NLR 119 at 126: Oduola v. Nahhan (1981) 5 SC 214: Ekoen v. Uyo (1986) 5 SC 1 at 29 – 30.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
APPEAL: WHETHER A GROUND OF APPEAL CHALLENGING THE WRONGFUL ADMISSION OR REJECTION OF EVIDENCE IS COMPETENT IF INCLUDED IN THE NOTICE OF APPEAL AGAINST THE FINAL JUDGMENT
However it is settled law that a ground of appeal challenging the wrongful admission or rejection of evidence is competent if included in the notice of appeal against the final judgment even though no objection was taken to the tendering of the document complained of at the trial. This is because where evidence is by law inadmissible it ought never to be acted upon by the court whether of first instance or of appeal.
It is immaterial that its admission in evidence was as a result of consent of the opposite party or that party’s failure to raise an objection at the proper time. See DAGACI OF DERE v. DAGACI OF EBWA (2006) 7 NWLR (979) 382 at 427 B – G & OLUKALE v. MADE (1976) 1 ALL NLR 67- OLAYINKA v. STATE (20071 9 NWLR (1040) 561 AT 577-578 H-A. The wrongful admission or rejection of evidence has been held to be fundamental, as the error might occasion a miscarriage of justice. See: Onwe v. Oke (2001) 3 NWLR (700) 406 at 418 R – F. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUPIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
ALHAJI SAIBU GBADAMOSI Appellant(s)
AND
1. MR. OKEGE
2. WALOK INVESTMENT LTD
3. OYE ARIYO ODUNOLA Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment) This is an appeal against the decision of the High Court of Oyo State, Ibadan Judicial Division delivered on 20th January 2003 dismissing the plaintiff/appellant’s claim for declaration of title, damages for trespass and injunction. Dissatisfied with the decision the appellant filed a notice of appeal containing eleven grounds of appeal. With leave of this Court granted on 13/10/05 the appellant amended his notice of appeal by filing five additional grounds of appeal thus bringing the total number of grounds of appeal, to sixteen.
In compliance with the rules of this Court the parties duly filed and exchanged their respective briefs of argument. In his brief dated and filed on 4/12/07 but deemed filed on 31/3/08 the appellant distilled four issues for determination as follows:
1. Whether having regard to the pleadings and evidence adduced before the trial court, the learned trial Judge was right to have dismissed all the appellant’s claims in its entirety. (Grounds 2, 5, 9 & 10)
2. Whether from the pleadings and evidence based on them, the learned trial Judge evaluated the evidence and drew proper inferences and conclusions in dismissing all the claims of the appellant. (Grounds 1, 3, 13, 15 & 16)
3. Whether the learned trial Judge was right to have based his judgment on illegal and inadmissible evidence to wit: Exhibit E contrary to the rule of admissibility of documents, more especially [as] Exhibit E is a registrable instrument within Section 5 of the Land Title Registration Law Cap 57 Laws of Oyo State of 1978 Vol. III and Section 5 of Land Instruments Registration Law, Laws of Oyo State 1978 Cap 56 Vol. III, within which the said document ought to have been registered under the said law. (Ground 12)
4. Whether the judgment is against the weight of evidence. (Grounds 11 & 14)
No issues were formulated from Grounds 4, 6, 7 and 8 of the grounds of appeal. The said grounds are deemed abandoned.
The respondents in their brief dated and filed on 9/5/08 but deemed filed on 23/9/08 adopted the four issues formulated by the appellant. At the hearing of the appeal on 12/4/2010, S. A. Onifade Esq., adopted and relied on the appellant’s brief and the Reply brief dated 24/9/08 and filed on 2/10/08. He urged the court to allow the appeal. Mrs. M. Aworemi adopted and relied on the respondent’s brief aforesaid and urged the court to dismiss the appeal.
By paragraph 17 of his statement of claim dated 19/4/2000 at page 14 of the record, the appellant as plaintiff claimed against the respondents, who were defendants at the lower court, as follows:
“17. Whereof the plaintiff claims against the 1st and 2nd defendants jointly and severally and or in the, alternative as follows:
i) A declaration of a statutory right of occupancy to all that parcel of land situate, lying and being at (sic) opposite Old Niger West Company Ltd. Challenge Ibadan.
ii) N100.00 damages for trespass committed by the defendants when they entered upon the plaintiffs family land and did still continues (sic).
iii) An order of perpetual injunction restraining the defendants, their agents, privies and any other person or persons who may Claim through the defendants.
iv) A declaration by the court that the 3rd defendant is a trespasser on the aforementioned piece or parcel of land behind the one encroached by the 1st and 2nd defendants opposite Old Niger West Company Limited, Challenge, Ibadan which will be clearly shown on the survey plan to be filed later in this suit”
The 1st and 2nd respondents filed a joint statement of defence at pages 37 – 40 of the record, to which the appellant filed a reply at pages 41 – 44 of the record. The 3rd respondent did not file any pleadings and did not testify at the trial.
The appellant instituted the action in a representative capacity for himself and on behalf of the members of Kure Awojobi family of Ibadan. At the trial the appellant testified on his own behalf as PW3 and called three other witnesses. It was the appellant’s case that over 150 years ago there was a war known as the Gbanamu war, which was fought by Iba Oluyole, Kure Awojobi, Ashiru Onipako and Olorisagbonna of Ibadan against the Egbas and the Ijebus. Ibadan won the war and after the conquest the families referred to above shared the vast area pf land amongst themselves. Individual families settled on their respective portions. Kure Awojobi, the appellant’s ancestor, settled on his own portion located generally from Felele junction, on both left and right sides up to Adelabu market on Ijebu-Ode Road, Ibadan. According to the appellant Kure Awojobi, his great grandfather farmed on his land and after his death his children took over and continued farming thereon. He testified that his family sold some plots of land to some persons, including one Osigbodu. He testified that the land in dispute consists of only two plots out of about 1000 acres owned by the family. He also testified that although he resided in the Republic of Benin at a point in time, he always came home during Ileya festivals and visited the land to ensure that there were no trespassers on it. At a point in time he caused a letter to be written by his solicitor to some trespassers found on the land, which was pasted on the fence but received no reply thereto. He stated that he also had labourers who regularly cleared the land, It was his case that none of the respondents have the authority of his family to be on the land in dispute. He tendered a dispute plan, Exhibit B, prepared in 2000, to show the area, trespassed upon by the respondents. It was the case of the respondents that the 1st respondent, who is the owner of the 2nd respondent, purchased the land in dispute from one Alhaji Aremu of Morafat Nig. Ltd., which sale was evidenced by a deed of assignment tendered as Exhibit D. He stated that Morafat Nig. Ltd. had constructed a building on the land, which was to be used as a shopping complex but which he demolished upon purchasing the land and rebuilt to display his cars and trucks. He stated that the land was fenced and there was an existing gatehouse. He traced the sale of the land he occupied from the sale to him by Morafat Nig. Ltd. through previous purchasers back to 1959.
Various’ documents (Exhibits C, C1, C2, C3 and C4) were tendered through an assistant Deeds Registrar to confirm the various transactions. He also tendered Exhibit E, a document of transfer from Mid-Motors Ltd., a company that used to sell cars on the land to one Timothy Odutayo Kuti, one of the purchasers of the land. Kuti allegedly sold the two plots shown in Exhibit C1 to his wife. Mrs. Kuti assigned a portion of plot A to Mr. Oye Ariyo Odunpla. Oye Ariyo Odunola assigned the said portion to Alhaji Muritala Aremu of Murafat Nigeria Ltd and two others. Alhaji Muritala Aremu and the two others assigned the portion to the 1st Respondent while the 3rd Respondent purchased the second portion of Plot A. Mrs. Kuti retained the second plot. The 1st defendant stated that he had been on the land undisturbed from 1996 when he purchased it until 2000 when the appellant instituted the action before the trial court. After considering the evidence of the parties, the exhibits tendered and the submissions of learned counsel in their final addresses the learned trial Judge dismissed the plaintiff’s claims in their entirety, hence this appeal.
A careful reading of the issues formulated by the appellant reveals that issues 1, 2 and 4 are quite similar. Issue 4 is more or less a repetition of issue 2. The respondents have argued issues 1 and 2 together in their brief. I am of the view that the appellant’s issue 2 conveniently covers the three issues.
Therefore issues 1, 2 and 4 shall be considered under issue 2, to wit: ”Whether from the pleadings and evidence based on them the learned trial Judge evaluated the evidence and drew proper inferences and conclusions in dismissing all the claims of the appellant “The appellant’s issue 3 thus becomes issue 2. The appeal shall therefore be determined on these two issues.
ISSUE 1
“Whether from the pleadings and evidence based on them the learned trial Judge evaluated the evidence and drew proper inferences and conclusions in dismissing all the claims of the appellant.”
In support of this issue, learned counsel for the appellant submitted that in an action for declaration of title the burden of proof rests on the claimant by virtue of Sections 135 and 136 of the Evidence Act Cap E14 Laws of the Federation of Nigeria (LFN) 2004. He referred to the five methods of proving title to land as stated in: Idundun Vs Okumagba (1976) 9 – 10 SC 227 at 246; Nkado v. Obano (1997) 5 SCN3 33 at 47. He submitted that proof of any of the five methods is the minimum the law requires. He referred to: Nwosu v. Udeala (1990) 1 NWLR (125) 188; Piaro v. Tenalo & Ors. (1976) 12 SC 13 at 42. He submitted that the various methods are independent of each other and cited the cases of: Owhonda v. Ekoechi (2003) 9-11 SCN3 1 at 6; Oqbe v. Idowu (2004) Vol. 24 WRN 152 at 158 – 159.
He submitted that while the appellant relied on four of the five methods stated in Idundun v. Okumagba (supra), the respondents relied on documents of title, namely Exhibits C, C1, C2, C3, C4, D & E. He submitted that the appellant at pages 47 – 50 of the record gave unchallenged evidence of traditional history that was comprehensive and left no gap in the line of succession. On proof of title by traditional history he relied on Owoade v. Omitola (1988) 2 NWLR (77) 413 at 424 – 425; Uchendu v. Ogboni (1999) 5 NWLR (603) 337 at 353; Temile v. Awani (2001) 6 SCNJ 190 at 194; Lion Building v. Shadipe (1976) 12 SC 135. He contended that there was no conflict of traditional histories between the parties such as to place an onus on the plaintiff to prove his Mogaiship of the family serially from time immemorial to the present day.
He submitted that apart from establishing title through traditional history, the appellant went further to prove acts of ownership through the sale of land to purchasers such as one Oro, a plank seller who built the office occupied by the appellant’s solicitors. He submitted that the court is bound to accept the unchallenged traditional evidence. He relied on several authorities including: Nig. Maritime Services Ltd. v. Alhaii Bello Afolabi (1978) 2 SC 79: Alhaii Abdullahi Baya v. Nig. Civil Aviation Training Centre & Anor. 7 SCN3 1. On the fourth method, he submitted that the appellant testified as to farming on the land by his family from time immemorial and the fact that they had been in quiet and undisturbed possession of the land until the respondents’ trespass thereon. On the fifth method, he referred to Section 46 of the Evidence Act and submitted that from the evidence of traditional history the appellant had established that his family was given about 1000 acres of land after the Gbanamu War out of which only two plots constitute the land in dispute.
He referred to Exhibits C, C1, C2, C3, C4 & D relied upon by the respondents and submitted that the documents are merely prima facie evidence of title to the land they relate to and no more. He relied on: Da Costa Vs Idigo (19841 1 SCNLR 481. He submitted that the documents do not automatically establish the title of those in whose favour they were executed. He referred to: Prince Ngene v. Chike Igbo & Ors. (20001 4 NWLR (6511 131: Emv 3 Bila Auta v. Chief Willy Ibe (20031 7 SCN3 159 at 169. He argued further that registration will not validate a fraudulent instrument of transfer. In support of this submission he relied on: Lababedi & Anor. v. Lagos Metal Ind. Nig. Ltd. 1 (19731 8 NSCC 1: Ezennah v. Attah (20041 ALL FWLR (202) 1858 at 1864: Romaine v. Romaine (1992) 4 NWLR (238) 650. He referred to Section 27 of the Land Instrument Registration Law Cap 56 Laws of Oyo State of Nigeria 1978 Vol. III and urged the court to examine the validity of Exhibits C – C4 & D. He referred to Exhibit A, which is a reply from the 1st respondent’s solicitor to a letter written on the appellant’s behalf regarding alleged trespass to the land in dispute, and submitted that there was no duty on the appellants to tender, the original warning letter because no issue was joined on it in the pleadings. He stated that the appellant took prompt action when he discovered the construction of the fence and flooring on the land by filing an application seeking to restrain the respondents, which application was granted by the trial court on 17/11/2000.
Learned counsel submitted that there was no basis for the finding of the learned trial Judge at page 79 of the record that there were existing structures on the land because there was no evidence before the court to show that Morafat Nig. Ltd., the 1st and 2nd respondents’ vendor, produced an approved building plan to show that there were existing structures on the land. He also contended that there was no obligation on the appellant to call the labourer who regularly cleared the land for him as a witness because issues were not joined on that fact.
Relying on several authorities including: Ogbe v. Idowu (2004) 24 WRN 152 at 158 – 159 and Mogaji v. Cadbury Nig. Ltd. ri985^ 1 NWLR m 393. learned counsel referred to Exhibit C4 relied upon by the respondents and submitted that they failed to establish how their vendor acquired the land and also failed to trace their title to the radical owners. He argued that no weight should have been attached to the said exhibit. He referred to the Land Instrument Registration Law Cap 56 Laws of Oyo State 1978 Vol. III; Ngene Vs Igbo (supra): and Emy 3 Bila Auta v. Willy Ibe (supra). He stated that there is no link between the 3rd respondent and Mrs. Kuti from whom he claimed to have derived his title as per the recital in Exhibit D. He submitted that the 1st and 2nd respondents did not file any survey plan to counter Exhibit B tendered by the appellants. He contended that the survey plans in Exhibits C and C4, which they relied upon are not identical and do not relate to the land in dispute.
He submitted that where two parties claim possession of land, the persons with the better title would be entitled to possession. He referred to: Kareem v. Ogunde (1972) 1 SC 182: Akinterinwa v. Oladunjoye (2000) 4 SCNJ 149 at 173.
He submitted that the court failed in its duty to properly evaluate the evidence before it and that this court has a duty to re-evaluate it. He relied on: Ebba v Ogodo (1984) 1 SCNLR 372: Woluchem v. Gudi (1981) 5 SC 291: (1981) 5 SCNLR 372. He contended that judgment ought to have been entered against the 3rd respondent who did not file any process in the suit and did not appear throughout the proceedings. He disagreed with the view expressed by the learned trial Judge that the appellant ought to have filed an application for default judgment against him.
In reaction to the submissions made on behalf of the appellant, learned counsel for the respondents reiterated the position of the law as stated by learned counsel for the appellant regarding the onus on a claimant in an action for declaration of title to succeed on the strength of his own case and not on the weakness of the defence, if any. He submitted further that the burden does not shift. He relied on: Onwuama v. Ezeokoli (20021 9 NSCOR 233 at 244; Kaiyaoja v. Egunla (19741 12 SC 55 at 60 – 61.
He Submitted., that a party relying on evidence of traditional history must plead the root of his title and the names and history of his ancestors and must lead satisfactory evidence in proof thereof. He relied on: Okonkwo v. Okeke & Ors. (2002) 10 NSCOR (Part I) 527 2 542: Owhonda v. Ekpechi (2003) 15 NSCOR 279 at 282: (2003) 9-11 SCN3 1: Uchendu v. Ogboni (19991 4 SCN3 64 at 78 lines 30 – 32. He referred to the case of: Alli v. Aleshinloye (2000) 4 SCN3 264 at 284 – 285 where the Supreme Court held that the factors that must be proved when relying on traditional1 evidences re: (a) who founded the land; (b) how the land was founded; and (c) the particulars of intervening owners through whom he claims. Reference was also made to: Makinde v. Akinwale (20011 1 SCN3 101 at 114 lines 4 – 5. He maintained that the appellant failed to discharge the burden of proof in this case.
On the appellant’s claim that his family owned a vast area of land of which the land in dispute forms a part, he referred to Exhibit B, the dispute survey plan relied upon by the appellant showing only the two plots of land in dispute. He referred to the evidence of PW2, the appellant’s family’s former solicitor to the effect that a plan of the whole area of land owned by the family was made in 1974 and submitted that the plan should have been tendered in evidence. He urged the court to presume that the failure to tender it means it is non-existent.
He contended that there were also contradictions between the evidence of the appellant and PW4, his surveyor, regarding the state of the land. He submitted that while the appellant stated that there are a few cocoa trees and no building on the land, PW4 testified that the land is fenced and that it has a gatehouse. He maintained that there was no basis for the contention of learned counsel for the appellant that Morafat Ltd. ought to have tendered an approved building plan showing existing structures on the land.
He contended that the appellant’s pleadings were lacking in material particulars regarding the devolution of the land. He referred to paragraphs 3, 4, 5, 6, 8, 9 & 10 of the statement of claim and the appellant’s evidence at page 47 lines 27 – 29 of the record. He referred to page 49 lines 5 – 13 of the record and paragraph 4 of the statement of claim and submitted that the evidence elicited from the appellant under cross examination was at variance with his pleadings. He noted that the appellant did not lead any evidence in support of paragraphs 18 & 19 of the reply to the statement of defence.
Learned counsel submitted that in a claim for declaration of title, the claimant needs to establish only one of the methods laid down in Idundun’s case (supra). He submitted that having failed to establish his title by traditional evidence, the appellant is not permitted to abandon that method and rely on acts of ownership. He relied on: Eze v. Atasie (2000) 6 SCNJ 209 at 219 lines 12 – 18: Trustees of Aba Diocese v. Nkume (Jan-March) (2002) 9 NSCOR 22 at 31.
With regard to the appellant’s request to this court to examine and invalidate Exhibits C – C4 and D, he submitted that issues were neither joined on the exhibits at the court below nor was there any claim before that court for such relief.
He submitted that the challenge to the said documents is a new issue raised for the first time in this court without leave. He urged the court to discountenance the submissions at paragraphs 5.04 – 5.06 of the appellant’s brief. He also relied on: Ezukwu v. Ukachukwu (2004) 7 SC (Part n 96 at
105 lines 25 – 29. Relying on the case of: Onibudo v. Akibu & Ors. (1982) 7 SC 60 at 62 – 63 & 88 – 89, he submitted that an appellate court must not do cloistered justice by examining documents out of court where such examination might disclose matters not brought out or exposed to test in court.
With regard to the challenge by the appellant to the documents tendered by the respondents from the Lands Registry tracing the transactions on the land from the date of purchase by the 1st respondent back to 1959, he submitted that the burden of proof in an action for declaration of title is on the appellant and never shifts. He contended further that since the respondents did not file a counter claim they had no burden to discharge. He relied on: Olokotintin v. Sarumi (2002) 7 SCNJ 182 at 187 lines 21 – 22; Onwuama Vs Ezeokoli (2002) 2 SCNJ 271.
As noted earlier in this judgment the appellant filed a reply brief. It is necessary to reiterate at this juncture the function of a reply brief. Pursuant to the provisions of Order 17 Rule 5 of the Court of Appeal Rules 2007, an appellant is at liberty to file a reply brief “which shall deal with all new points arising from the respondent’s brief.” The purpose of a reply brief is not to afford the appellant an opportunity to re-argue the appeal See: Nwali v. The State (1991) 3 NWLR (182) 663;
Shuaibu Vs Maithoda (1993) 3 NWLR (284) 748; Adebivi v. Sorinmate (2004) All FWLR (239) 933. A substantial part of the appellant’s reply brief was devoted to re-arguing the appeal. All such submissions are hereby discountenanced.
On the submission that the appellant ought to have tendered the plan showing the entire expanse of land owned by Kure Awojobi family, learned counsel for the appellant argued that the respondents did not join issues on the appellant’s evidence of the boundaries of the land. He also maintained that there was no contradiction between the evidence of the appellant and PW4. He maintained further that the evidence of traditional history was unchallenged. He also argued that the appellant did not need to tender copies of judgments in suits involving the Kure Awojobi family in relation to the land in dispute because the respondents did not join issues on the point on the pleadings. With regard to Exhibits C – C4 and D, he submitted that the appellant raised the issue of setting aside the documents in his reply to the statement of defence of the 1st and 2nd respondents and in learned counsel’s final Address and therefore it is not a new issue requiring leave. He urged the court to allow the appeal.
As rightly submitted by both learned counsel, in an action for declaration of title the burden is on the claimant to prove his entitlement to the declaration. He is bound to rely on the strength of his own case and not on the weakness of the defence, if any. See Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (7) 393 at 479 D – E; Kodilinye v. Odu (1936) 2 WACA 336 at 337; Onwugbufor v. Okoye (1996) 1 NWLR (424) 252: Shittu v. Fashawe (2005) 14 NWLR (946) 671. The exception to this rule is where the defendant’s case supports the claimant’s case and contains evidence upon which the claimant is entitled to rely. See: Mogaji v. Cadbury (supra) at 429 – 430 H – A. The five ways by which a claimant may prove title to land have been equally well settled by the Supreme Court in the case of Idundun v. Okumagba (1976) 9 – 10 SC 227. They are:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By, acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them. Learned counsel” for the appellant has argued that the appellant relied on four of the five ways of establishing title stated above. However, it is clear from his pleadings and evidence led in support thereof that his claim for declaration is based on traditional-history i.e. on first settlement on the land. The acts of ownership, long possession and possession of connected or adjacent land are all incidental to the claim of original ownership through traditional history. Thus, the view of the learned trial Judge expressed at page 75 of the record that the appellant would be entitled to a declaration upon satisfactory proof of traditional history, is the correct position of the law. In other words, once the court is satisfied as to the evidence of traditional history, the appellant would have discharged the onus of proof on him. On the other hand, if he fails to prove his root of title through traditional history, he cannot fall back on acts of ownership or long possession. See: Owhonda v. Ekpechi (2003) 9 – 11 SCNJ 1 at 14 lines 1 – 18- At page 14 lines 17 – 19 (supra) the Supreme Court held:
“Accordingly, where a party pleads root of title, he cannot talk of acts of possession in order to establish title, he must first prove the root of title. “See: Fasoro v. Beyioku (1988) 2 NWLR (76) 263 at 271 cited with approval.
In paragraphs 3 – 10 of the Statement of Claim at pages 12 – 14 of the record the appellant pleaded as follows:
“3. Kure Awojobi, the grandfather of the plaintiff was a hunter, farmer, and a warrior who arrived in Ibadan from Oyo at the same time with Iba-Oluyole about 150 years ago.
4. Kure Awojobi begat Oyaseke Alabi, and Oyasanmi and all are male and dead. Oyaseke begat Oyadina Apeke and Gbadamosi Adeoye. Gbadamosi Adeoye begat the plaintiff, Amodu Ajao. and Ajara Abeke while Oyasanmi begat Jimoh Ajala while Jimoh Ajala begat Yinusa Akanji.
5. The said Kure Awojobi with Iba Oluyole, Olorisagbonna, Arowoiaje and Desomu joined together and fought Gbanamu war and drove Egba and Ijebus away in a large area including the area in dispute.
6. After the said Gbanamu war, the said Iba Oluyole, Kure Awojobi, Olorisagbonna, Arowoiaje and Ashiru Onipako sat down and divided the piece or parcel of land jointly acquired through the said war.
7. The area settled upon the conquest by the said Kure Awojobi started from area then called Odo Idi-Esu now Iyana Felele both left and right till Agunbelewo Village now Adelabu Market.
8. The said Kure Awojobi performed various acts of ownership on the area conquered by him. Also put some tenants on it for farming of food crops only.
9. Oyadina Apeke begat Buraimoh Adigun, Raimi Lanlokun, Ashiyanbi, all dead.
10. The children and grandchildren including the plaintiff performed various acts of ownership after the death of Kure Awojobi by planting crops such as cocoa, coffee, kolanuts, palm trees, yams, maize, putting tenants on it”
In paragraphs 2 and 3 of their statement of defence at page 37 of the record, the 1st and 2nd respondents denied all the paragraphs reproduced above. They went further to plead in paragraphs 4 and 5 as follows:
“4. The defendants shall contend that there is no Kure, Awojobi family, and that if the family exists it has no land in the area in which the defendants’ land is situate.
5. Defendants shall contend that plaintiff is acting alone, and does not, have the authority of any other member of his said family before bringing this action.”
In paragraphs 6-14 they pleaded documents of title regarding their purchase of the land in 1996 and documents regarding prior transactions on the land by their predecessors in title from 1959 till 1996. They thereafter pleaded in paragraphs 19, 20, 23 and 24 thus:
“19. There were no cocoa, coffee, kolanuts, palm trees etc on the land, at least since the 1960s. Plaintiff himself is a driver of middle age.
20. The 1st defendant was in undisguised and undisturbed possession of the land, which was completely fenced since there was a gate installed. He also had a ma/guard to keep watch. It is incorrect that efforts were made to find out who was in possession. He had a signboard on display.
23. 1st defendant shall contend that the survey plan filed by plaintiff was built on the survey plans made by his predecessors oh the land in dispute.
24. 1st defendant avers that even if it is correct (which is not conceded) that plaintiffs family traditionally settled on the land or owned it, that the family has slept on its rights and is guilty of laches and acquiescence as 1st defendant can through his predecessors trace their occupation of the land undisturbed since 21st January 1956.”
In his reply to the statement of defence (at pages 41 – 44 of the record) the appellant reiterated his position as pleaded in the statement of claim and denied all the averments relating to the purchase of the land by the respondents and the title of their predecessors in title. He maintained that the land in dispute belonged to the Kure Awojobi family and that he had the family’s mandate to institute the action on their behalf. In paragraphs 18 and 19 he pleaded thus:
“18. The plaintiff will rely at the trial of this action on evidence of their various family lawyers and solicitors together with the suit numbers of various cases handled on behalf of their family along left and right of Old Lagos Road where the land in dispute is situate.
19. The plaintiff will equally rely at the trial of this action on evidence of various people who have purchased part of their land from them and their ancestors respectively along Old Lagos Road where the land in dispute is situate.”
It is evident from the pleadings reproduced above that issues were joined on the traditional history pleaded by the appellant as well as the existence and extent of the land allegedly owned by the Kure Awojobi family. As noted earlier in this judgment the onus was on the appellant to establish through credible evidence the traditional history upon which he based his claim. The learned trial Judge undertook a thorough review of the pleadings of the parties and the oral and documentary evidence led in respect thereof. At page 76 lines 27 – 32 His Lordship held as follows:
“The plaintiff can only succeed in this case if he pleads and gave (sic) cogent evidence of first settlement of Kure Awojobi and therefore trace the history down to himself who is now the Mogaji.
The plaintiff must plead the histories and the several ancestors before him who at one point in time occupied this land.”
After considering paragraphs 5, 6, 7 and 10 of the statement of claim and the evidence led in support by the appellant, His Lordship continued at page 76 lines 39 -42 and page 77 lines 1-29 thus:
“The vital question which I must pose to myself is “Has the plaintiff pleaded full particulars of the intervening owners through whom he claimed?” My answer is NO. To succeed the plaintiff ought to have pleaded the names of the successor to Kure Awojobi, after that who followed next amongst the children. Although under cross examination, the plaintiff admitted that his father sold portion of the land to some purchasers. At what point in time did his father intervene and exercise power of title on behalf of the family? Who exercised the power [with] him?
It is my view that failure to plead sufficient particulars and identity of the intervenes is fatal to the plaintiffs case. To plead also that the children took over the land, exercised acts of ownership is too vague and cannot meet the requirement of satisfactory proof in this case. Equally too I am not impressed by the evidence of the plaintiff. He stated that after Kure Awojobi settled on the portion partitioned to him by his co-conquerors, which portion is known as Idi-Esu at Iyana Felele, he farmed on this land by planting cocoa, kolanut, yams and maize and after his death his children took over and what they did. He only mentioned that at a time when he discovered that there was a wall fence, he caused a lawyers letter pasted on the wall (sic). When was this and after how many years of original settlement by Kure? The gap is just too big to be left unexplained.
Pleading that someone begat someone is not the nature of plea of particulars of successors or intervenes. Therefore I am not satisfied about the nature of the traditional history or evidence adduced to warrant a declaration of title in the favour of the plaintiff on the small portion of land now in dispute.
Although PW2 gave evidence of the extent of boundaries of Kure Awojobis land, after him the total family land, such evidence is of little assistance to me as proof of title by traditional history or evidence on that small portion as shown in Exhibit B.”
Where a claim for declaration of title is based on traditional history, the claimant must plead and lead evidence to establish the following:
a. Who founded the land;
b. How the land was founded; and
c. Particulars of intervening owners.
See: Alli v. Aleshinloye (20001 4 SCNJ 264 at 284 – 285; Mogaji v. Cadbury Nig. Ltd. (supra); Elegushi v. Oseni (2005) 14 NWLR (9451 348: Ohiaeri Vs Akabueze (1992) 2 NWLR (221) 1; Alikor v. Ogwo (2010) 5 NWLR (1187) 281 at 309 D – F.
The Supreme Court held in Alli Vs Aleshinloye (supra) that in relying on traditional evidence it is not sufficient to merely prove that the claimant or his predecessors in title had owned and possessed the land in dispute from time immemorial. In the instant case the appellant’s pleadings and evidence did not meet the third requirement stated earlier.
There were no particulars of intervening owners. He merely pleaded and testified” as to who begat who without more. What was the line of succession? How was the land shared among family members? How did he become the Mogaji of the family?
He testified that his family sold land to various purchasers. He pleaded in paragraphs 18 and 19 of his reply to the 1st and 2nd respondents’ statement of defence that he would rely on the evidence of people who had purchased land from his family and suit numbers of cases handled on the family’s behalf in respect of the vast area of land owned by them. No purchaser was called to testify and no court processes were tendered.
Furthermore, as part of the traditional history, the appellant testified that his family owned more than 1000 acres of land of which the two plots in dispute form a part. The evidence as to the boundaries of the family land was given not by a family member but by PW2, a former solicitor to the family. PW2 testified that there was a plan of the entire land prepared in 1974. He stated that it was not in his possession having returned it to the family along with their case files. The said survey plan was not tendered. I am of the view that the said plan would have gone a long way to show the extent of the land allegedly settled upon by the appellant’s ancestors after the Gbanamu War in relation to the two plots of land now in dispute. It would also have shown the features of the land, such as crops, existing structures etc. It is also rather curious that no member of the appellant’s family or any member of any of the co-conquering families testified in support of the traditional history.
It is not correct, as contended on behalf of the appellant that the evidence of traditional history was unchallenged. By their pleading and evidence the respondents clearly challenged the basis of the appellant’s claim. I agree with the learned trial Judge that the appellant did not plead or lead cogent evidence in support of the traditional history upon which he based his claim for declaration of title. Where a trial court has properly evaluated the evidence before it and has reached a decision that is not perverse, an appellate court would be most reluctant to interfere with that decision. See: Bunge Vs Gov. Rivers State (2006) 12 NWLR (995) 573 at 629 E – H: Saleh v. B.O.N. Ltd. (2006) 6 NWLR (976) 316 at 329 – 330 H – C. I find no reason to interfere with the decision of the learned trial Judge on the issue of traditional history.
Having failed to establish title through traditional history, the appellant could not fall back on acts of ownership, long possession or ownership of connected or adjacent land. See: Eze v. Atasie (supra) at 219 lines 12 – 23: Owhonda v. Ekpechi (supra). The appellant was therefore not entitled to a declaration of title in his favour. Having found the evidence of traditional history unsatisfactory, the learned trial Judge ought not to have embarked on a consideration of the evidence led in support of the other methods of establishing title. This is because, as stated in Owhonda v. Ekpechi (supra) once the appellant had failed to prove the root of his title there was nothing upon which to hinge the acts of ownership, long possession or possession or ownership of adjacent land. See also: Alikor v. Ogwo (supra) at 309 – 310 G – B.
Although the learned trial Judge found that the appellant was not entitled to a declaration of title, His Lordship properly went on to consider the claims for damages for trespass and injunction. Support for this approach can be found in dictum of the Supreme Court in Eze v. Atasie (supra) at 219 lines 24 – 36 where it was held:
“It may be necessary to consider evidence of possession in a case like this where the plaintiff has failed to prove title in order to ascertain whether he is in any event entitled to damages and injunction claimed for an alleged trespass if it is shown that he was in possession which was disturbed as the authorities establish … This is on the basis that trespass is essentially an issue of who is in possession. The law is that a person in possession of land, even as a trespasser can sue another who thereafter comes upon the land unless that other is the owner or shows some title that gives him a better title to be on the land. See: Aromire v. Awoyemi (1972) 2 SC 182; Amakor v. Obiefuna (1974) 1 All NLR 119 at 126: Oduola v. Nahhan (1981) 5 SC 214: Ekoen v. Uyo (1986) 5 SC 1 at 29 – 30.”
In respect of the claim for damages for trespass and injunction, the learned trial Judge considered the evidence led on either side and made the following findings:
i. That while the appellant testified that he cultivated the land personally and by proxy i.e. through a labourer and that he visited the land occasionally, Exhibit B (the dispute survey plan) does not show any cultivated crops on the land and no labourer was called to testify.
ii. That although the appellant testified that on one occasion when he visited the land he found a wall fence and caused his solicitors to write to the builder of the fence, neither the letter nor a copy thereof was tendered. He was of the view that Exhibit A tendered by PW1 actually supports the respondents’ claim to possession.
iii. That on the other hand, the 1st respondent owner of the 2nd respondent, a company that sells trucks and cars, testified that after he purchased the land, he found an existing building erected by his vendor, which he pulled down and reconstructed to meet his own needs. That he fenced the land and displayed his trucks for sale thereon.
iv. That the 1st respondent also testified that his predecessor, Mid-Motors Ltd. also used to display and sell trucks on the land and that there are carcasses of unsold trucks on the land.
v. That the 1st respondent also testified that there was a gatehouse on the land.
vi. That PW4 corroborated this fact when he testified under cross-examination that the building he saw on the land was a relatively old building.
vii. That the 1st respondent testified that he was undisturbed on the land from 1996 when he bought it until 2000.
The appellant has urged this court to examine and invalidate Exhibits. C – C4 (deeds of conveyance showing how the 1st and 2nd respondents’ predecessors in title acquired the land before the sale to the 1st respondent) on the ground that they do not constitute prima facie evidence of title and that mere registration of a deed of conveyance cannot validate a fraudulent instrument of transfer. The respondents contend that this is a fresh issue raised for the first time in this court without leave. Learned counsel for the appellant countered this assertion by stating that the relief was claimed in the appellant’s reply to the statement of defence and also referred to in counsel’s final address. A perusal of the record (particularly at page 44) reveals that indeed in paragraph 20 of the reply to statement of defence the appellant prayed the court to set aside all the deeds of conveyance allegedly illegally obtained. However, the reply to the statement of claim is not the forum for seeking reliefs in a suit. An allegation of fraud is an allegation of a criminal offence, which must be strictly pleaded and proved beyond reasonable doubt. Moreover, as observed by the learned trial Judge, the appellant was not a party to those documents. Furthermore the parties to the documents were not parties before the court. I am of the considered view that the learned trial Judge was correct when he held that the appellant ought to have amended his statement of claim if he wanted the court to invalidate the deeds of conveyance.
What the learned trial Judge did was to place the evidence adduced by the parties on an imaginary scale to ascertain in whose favour the scales tilted. It is pertinent to bear in mind the fact that the respondents did not file a counter claim in the suit. There was therefore no burden on them to establish title to the land, as contended by learned counsel for the appellant. See: Olokotintin v. Sarumi (2002) 7 SCNJ 182 (a) 187 lines 21 – 22. The failure of the respondents to file a dispute survey plan could not be fatal to their defence. The burden of proof rested squarely on the appellant. The learned trial Judge thoroughly evaluated the evidence before him on the issue of possession at pages 83 to 84 of the record, as summarized above, and came to the conclusion, rightly in my view, that the respondents had established that they were in undisturbed possession of the land in dispute. Having so found, His Lordship rightly refused the claim for damages for trespass and also dismissed the claim for injunction. I find no reason to interfere with the decision. This issue is accordingly resolved against the appellant.
ISSUE 2
Whether the learned trial Judge was right to have based his judgment on illegal and inadmissible evidence to wit: Exhibit E contrary to the rule of admissibility of documents, more especially [as] Exhibit E is a registrable instrument within Section 5 of the Land Title Registration Law Cap 57 Laws of Oyo State of 1978 Vol.III and Section ? of Land Instruments Registration Law, Laws of Oyo State 1978 Cap 56 Vol. III, within which the said document ought to have been registered under the said law.
Learned counsel for the appellant submitted that Exhibit E, photocopy of an agreement between Mid-Motors Nig. Ltd and Timothy Odutayo Kuti was admitted in evidence without foundation being laid as to the whereabouts of the original. On this point he relied on several authorities including: Alade v. Odukale (1976) 2 sq 183: Daggash v. Bulama (2004) All FWLR (212) 1565 at 1681: Fasina v. Ogunkayode (2005) 31 WRN 172 at 177 – 179. He submitted further that Exhibit E is a registrable instrument within the meaning of Section 5 (1) (a) & (b) & 2 of the Land Title Registration Law Cap 57 Laws of Oyo State of Nigeria 1978 Vol. Ill and Sections 15 and 16 of the Land Instruments Registration Law, Laws of Oyo State of Nigeria 1978 Cap. 56 Vol. III. He submitted that the document was neither stamped nor registered. He argued that notwithstanding the fact that no objection was taken to its admissibility at the trial, the court has a duty not to act on inadmissible evidence. He cited a plethora of authorities including: International Bank of West Africa Ltd. v. Imano (Nig.) Ltd. & Anor. (2001) 3 SCNJ at 164 – 165-
Okonkwo Okonii & Ors. v. George Njokanwa & Ors. (1999) 12 SCNJ 259: Oseni v. Dawodu (1994) 4 SCNJ 197 at 200: Durosaro v. Ayorinde (2005) 20 WRN 181 at 184 – 189. He urged the court to expunge the document.
He argued that if Exhibit E is expunged from the record, the defence of the respondents would collapse because it was on the basis of Exhibit E that Timothy Odutayo Kuti obtained the certificate of occupancy, Exhibit C1, and purported by Exhibit C1 to transfer legal title to his wife vide Exhibit C. He contended that subsequent transfers of title by Mrs. Kuti and the purported transfer of title by the 3rd respondent to Morafat Company Ltd. are all without foundation. He relied on Macfoy v. U.A.C. Ltd. (1962) AC 152: Skenconsult (Nig.) Ltd. v. Ukey (1981) SC 9: Rossek Vs U.A.C. (1962) A.C. 152 at 60. He argued that in any event Exhibit E cannot pass legal
title but only an equitable interest, which must be accompanied with handing over, which has not been established in this case.
He referred to: Braimoh v. Karimu (1999) NWLR (618) 310: Alao v. Akano (2005) 20 WRN 157 at 164; Anaeze v. Anvaso (1993) 5 NWLR (291) 1.
In reply to this issue, learned counsel for the respondents submitted that Exhibits C – C4 and D are all certified true copies, which were tendered without objection through DW1, an Assistant Deeds Registrar of the Oyo State Ministry of Lands and Housing. He submitted that the court relied on the documents because they complied with Section 193 (1) of the Property and Conveyance Law of Oyo State. He argued that pursuant to Section;2 of the Land Instruments Registration Law of Oyo State, the documents are all instruments relating to an interest in land and that the appellant failed to prove that they were illegal. He submitted that Exhibit E was tendered to prove that Mid-Motors transferred the land to Kuti. He stated that DW2 testified that Kuti obtained a Certificate of Occupancy in respect of the same land. The Certificate of Occupancy was the document admitted in evidence as Exhibit C1. He stated that Exhibit E was used to obtain Exhibit C1 because after the enactment of the Land Use Act in 1978 Exhibit E, made on 14/11/1977 was no longer registrable. He argued that since Mr. Kuti had obtained a Certificate of Occupancy validly issued by the .Governor of Oyo State in respect of the land later
transferred to his wife, expunging Exhibit, E from the record would be of no moment. He argued that the appellant did not proffer any argument on this issue at the court below and this Court has no duty to consider it at this stage.
In his reply brief learned counsel for the appellant merely repeated the arguments already advanced in the appellant’s brief.
The first factor to consider in resolving this issue is whether the appellant is entitled to raise the issue of the admissibility of Exhibit E on appeal when the issue was not raised and argued at the court below. As stated in the course of resolving the first issue above, the appellant attempted to seek the invalidation of all the documents of title relied upon by the respondents through his reply to the statement of defence.
I agreed with the opinion expressed by the learned trial Judge that such relief could only be sought by way of amendment to the writ of summons or statement of claim. Having not done so, the issue was not properly raised before that court.
Furthermore, no attempt was made during the trial to challenge any of the documents.
However it is settled law that a ground of appeal challenging the wrongful admission or rejection of evidence is competent if included in the notice of appeal against the final judgment even though no objection was taken to the tendering of the document complained of at the trial. This is because where evidence is by law inadmissible it ought never to be acted upon by the court whether of first instance or of appeal.
It is immaterial that its admission in evidence was as a result of consent bf the opposite party or that party’s failure to raise an objection at the proper time. See DAGACI OF DERE v. DAGACI OF EBWA (2006) 7 NWLR (979) 382 at 427 B – G & OLUKALE v. MADE (1976) 1 ALL NLR 67- OLAYINKA v. STATE (20071 9 NWLR (1040) 561 AT 577-578 H-A. The wrongful admission or rejection of evidence has been held to be fundamental, as the error might occasion a miscarriage of justice. See: Onwe v. Oke (2001) 3 NWLR (700) 406 at 418 R – F. This court therefore has a duty to consider the issue having been properly raised in this court.
I have examined Exhibit E. As stated by learned counsel for the appellant it is a deed of transfer dated 14/11/1977 between Mid-Motors (Nig.) Ltd. and Timothy Odutayo Kuti in respect of a parcel of land measuring 4, 212.66 square yards situate at Old Lagos Road, off Challenge, Ibadan. It is no doubt a document affecting land requiring registration pursuant to Section 16 of the Land Instruments Registration Law, Cap 56 Laws of Oyo State Vol. III 1978. It was not so registered. Exhibit C1 is a certified true copy of a certificate of occupancy in favour of the sara1 Timothy Odutayo Kuti in respect of the same parcel of land. By virtue of Exhibit C1, Timothy Odutayo Kuti assigned the land therein to his wife, Mrs. Bolatito Abeke Kuti vide “Exhibit C. Exhibit C1 was issued by the Oyo State Government. Section 150 (1) of the Evidence Act provides:
“Where any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that forma requisites for its validity were complied with.”
It is presumed therefore that the Oyo State Government must have been satisfied that the formal requisites for its grant had been satisfied before issuing Mr. Kuti with a certificate of occupancy. The appellant did not adduce any evidence at the trial to rebut that presumption. It would also not be correct to state that the trial court placed heavy reliance on Exhibit E His Lordship considered all the documentary evidence before him as well as the evidence of PW4, the appellant’s surveyor who confirmed that at the time he was instructed to survey the land it was fenced and had an existing gatehouse that was fairly old. The appellant was unable to prove any act of possession on the land while the respondents gave copious evidence of their acts of possession, which were preferred by the Court. I am therefore of the considered view that even if Exhibit E were expunged from the record, it would not have advanced the Appellant’s because he was unable to show that he or any member of his family was in possession of the two plots of land in dispute. It must be reiterated once again that there was no burden on the respondents to establish title. The only burden on them was to show that they were in undisturbed possession of the land. I agree with the learned trial Judge that they were able to show a better right to possession than the appellant. In the circumstances, this issue is also resolved against the appellant.
In conclusion the appeal fails in its entirety and is accordingly dismissed. The judgment of the High Court of Oyo State, Ibadan Judicial Division in Suit No. 1/592/99 delivered on 20th January 2003 per M. L. Abimbola, J is hereby affirmed.
Costs of N50, 000.00 are awarded in favour of the 1st and 2nd respondents.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother K.M.O. KEKERE-EKUN, J.C.A.
I agree with the reasoning and conclusion arrived at in holding that the appeal fails. His Lordship has dealt comprehensively with the issues raised and I have nothing meaningful to add. I also dismiss the appeal and affirm the judgment of the trial court. I abide by the orders made as to costs.
MODUPE FASANMI, J.C.A.: I have had the opportunity of reading in advance the lead Judgment delivered by my learned brother K. M. O. Kekere-Ekun.
I am in full agreement that the appeal lacks substance and merit and should be dismissed. I also dismiss the appeal and abide by the orders in the lead judgment.
Appearances
S. A. ONIFADE ESQ., with A. T. BADMUSFor Appellant
AND
MRS. M. AWOREMIFor Respondent
