ALHAJI SULEMONU AJAPE BANKOLE ADEDOYIN & ORS v. ALHAJI SALIMONU AMOO
(2018)LCN/11893(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/IL/89/2017
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“It is an elementary fact, that a trial Court is in the best position in the evaluation of evidence due to its vantage position of listening first hand to the witnesses as they testify, and watching their demeanor in assessing their credibility. The Court has a duty first in time, to receive all available evidence, sifting through the evidence and ascribing value to the evidence received and weighing same on the imaginary scale to see which amongst the parties adduced evidence which is heavier in terms of its value. See Olufosoye & Ors vs. Olorunfemi (1989) LPELR-2615 (SC). For as held in Bamgboye vs. University of Ilorin (1999) 10 NWLR (pt. 622) 290” PER PER HAMMA AKAWU BARKA, J.C.A
LAND LAW: WAYS TO PROVE TITLE TO LAND
“The position of the law with regards to proof by traditional history is as set down in the case of Idundun vs. Okumagba (supra),Piaro vs. Tenalo(1976) 12 SC 31, Balogun vs. Akanji (1988) 1 NWLR (pt. 70) 301 amongst many others, that where a plaintiff such as the claimant in the lower Court pleads his primary root of title based on traditional history, he must in order to succeed prove the following:
a. who founded the land.
b. how it was founded and,
c. particulars of the intervening owners through whom the plaintiff or claimant claims.” PER HAMMA AKAWU BARKA, J.C.A
JUSTICES:
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI SULEMONU AJAPE BANKOLE ADEDOYIN
2. ALHAJI IBRAHIM BANKOLE ADEDOYIN
3. HAJIYA TAIYE AYINLA ARO-ISSA
(For and on behalf of the
entire members of Abibu Bankole and Iyun families, Osin-Adedoyin village, Ilorin
West Local Government Area, Kwara State.) – Appellant(s)
AND
ALHAJI SALIMONU AMOO – Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of Justice I. A. Yusuf of the Kwara State High Court in Suit No. KWS/230/2014 between Alh. Sulemonu Ajape Bankole Adedoyin and two others suing for themselves and on behalf of the entire members of Abibu Bankole and Iyun families, Osin Adedoyin village Ilorin West Local Government Area, Kwara State and Alhaji Salimonu Amoo delivered on the 19th of December, 2016.
The appellants as claimants before the lower Court caused a writ of summons to issue against the respondents, whereof they claimed for the following reliefs:
a. A DECLARATION that the claimants are the customary owners of the expanse of land in Osin-Adedoyin village, stretching from Adedoyin and forming/sharing common boundaries with Adepe, Monmonu, Alaji, Ajara, Ologunso, Alikanbu, Elewuro and Laduba all between Asa and Ilorin West Local Government Areas of Kwara State.
b. A DECLARATION that the claimants are entitled to be granted Right of Occupancy over the portion or expanse of the land at Osin-Adedoyin village, Ilorin West Local Government Area Kwara State.
c. The sum of Two Million Naira (N2,000,000.00) only as general damages for trespass committed by the defendant to the claimants in respect of their land.
d. AN ORDER OF PERPETUAL INJUNCTION against the defendant, his agent(s), privies, servants or any person claiming to have derived title from him from encroaching or further encroaching, tampering or further tampering with the claimants land situates, lying and being at Osin-Adedoyin village, Ilorin West Local Government Area, Kwara State.
The Respondent, as defendant before the lower Court, in the statement of defense filed, denied the claim in its entirety, urging lower Court to discountenance the claimants claim and to dismiss the suit for being frivolous and gold digging. The case proceeded to a full blown trial, and at the close of evidence, written addresses were ordered, filed and adopted. The trial Court in a considered judgment delivered on the 19th of December, 2016, concluded that:
On the whole, I find that the claimants have not proved their entitlement to the reliefs sought, the issue for determination is therefore resolved in the negative. The claimants action against the defendants is hereby dismissed.
It is against this decision that appellants appealed to this Court, vide a Notice of Appeal filed on the 15th of March, 2017; predicated on eight grounds of appeal. The appeal having been entered on the 18th of September, 2017, but deemed filed on the 25th of September, 2017, parties proceeded to file in their respective briefs of argument. The appellants brief dated the 29th of January, 2018 was filed on the same date. The extant appellants brief is that filed on the 14th of February, 2018.
The Respondent on the other hand filed the respondents brief on the 13th of March, 2018. Appellants on receipt of the respondents brief, filed a reply brief dated the 13th March, 2018 on the same date, and on the 2nd of May, 2018 when the appeal eventually came up for hearing, parties identified the processes filed by them and adopted same as their arguments in the appeal.
In the appellants brief settled by S. K. Olawepo, the learned counsel for the appellants, a total of seven issues were formulated from the eight grounds of appeal raised as follows:
1. Considering the established methods of proving title to land as has been judicially settled in plethora of authorities and whether having regards to the pleadings and evidence led in support of same by the parties, the learned trial judge was right in holding that the appellants failed to prove their title to the land in dispute
2. Whether the learned trial judge fully comprehended the case before him at trial and whether the decision of the trial judge would have been different if he had not lost track of the entire case before the Court on the disputed land.
3. Whether page 59 of the appellants (claimants) counsels final written address, paragraph 28 of CW4s written statement on oath and Exhibit C were not wrongly interpreted or misconceived by the trial judge.
4. Whether from the record, there is anywhere both the appellants and the respondent commonly traced the land in dispute to Oba Shitta or if there is any evidence from the record that Haileru Adedoyin family is into two (2) extractions.
5. Whether the trial judge was right in holding that Exhibit B does not relate to the land in dispute but in respect of land situate at Laduba.
6. Whether the trial judge was right to have concluded that three out of the four(4) exhibits tendered by the appellants have the same force with the only Exhibit E tendered by the respondent.
7. Whether there is living member of Adedoyin family that the appellants can call as a witness and whether an inhabitant of Adedoyin Ori-Okoh compound is the same as Adedoyin family.
And in the respondents brief settled by A. A. Ibraheem, the learned counsel representing the respondent, two issues were identified for the resolution of the appeal. They are as follows:
1. Whether going by the contradictory evidence of the claimants and their witnesses, it could be said that the claimants have established Grant/Gift of the land in dispute by Oba Suleiman/Haileru Adedoyin and entitled to any of the declaratory reliefs sought in this suit.
2. Whether the trial Judge findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before him.
I have given due consideration to the issues formulated by the parties, and also studied the arguments of the learned counsel on both sides vis-a-vis the record of proceedings. It appears to me that from the issues raised, the principal issue for determination borders on whether the claim of the appellants with regard to the issue of the gift or grant of the disputed land was proved before the lower Court.
It should be noted that, appellants as claimants claimed before the lower Court that their progenitors were settled on the land now in dispute by Oba Suleimonu also known as Oba Sule the 6th Emir of Ilorin from time immemorial, based upon which they became the first settlers on the land. They named their two progenitors as Abibu Bankole and Aro-Iyun, who were two prominent Yoruba warriors unfortunately captured and brought to the Emir’s Palace during the Ilorin/Ekiti and Erinmopo-Ijesha wars, before even the reign of Oba Sule. The claimants story continued to the effect that Oba Sule partitioned his landed assets into two, and gave each part to his two sons, Woru and Adedoyin. That it was Osin Adedoyins land that was given to Adedoyin who then sent Akibu Bankole to settle as the first Mogaji of the village.
That based on the immense contributions of the appellants progenitors, Adedoyin with the blessing of his father Oba Suleiman, now relinquished the entire Osin-Adedoyin land to the appellants progenitors by way of gift, who then continued to exercise right of ownership over the entire land.
The respondent dispute the claimants story, rather stating that the land in dispute originally belong to the 2nd Emir of Ilorin known as Oba Shitta, who was the father of Oba Suleiman, the 6th Emir of Ilorin. He also denied the fact that the land was given to the appellants as gift by Adedoyin. He states that he (defendant/respondent) is the accredited Mogaji of Adedoyin village and recognized as the Fagba and Ori-Okoh, heads / Daudu of Oba Suleiman family.
Let me now recap the submissions of the learned counsel for the appellants in respect of the seven issues crafted by him, and thereafter the response of the learned counsel for the respondent, as can be seen from the two issues identified by him.
It was the contention of the learned counsel for the appellants that the case before the lower Court centers on the dispute as to who owns the expanse of the land situate, lying and being at Adedoyin village in Asa, Ilorin West Local Government Area of Kwara State. Learned counsel contended that appellants placed sufficient evidence before the lower Court, entitling them to the judgment of the lower Court.
Alluding to the five known methods of establishing ownership to land, counsel submits that the appellants placed and led evidence in support to the statement of claim containing the appellants averments in support to the effect that:
a) That Oba Sule (Suleiman) the 6th Emir of Ilorin is the founder of the entire Adedoyin village, otherwise known as Osin-Adedoyin from time immemorial.
b) Oba Sule partitioned his entire lands between the two most prominent of his children, namely, Fagba, headed by Woru and Ori-Okoh, headed by Adedoyin.
c) The appellants progenitors were captured and brought to Ilorin as prisoners of war.
d) That Oba Sule integrated the progenitors of the appellants into his family fold.
e) That Oba Sule initially sent the progenitor of the 1st and 2nd claimants, in person of Abibu Bankole to go and settle on the land as Oba Sule’s agent.
f) The families of the claimants have since then been appointed the Mogaji of Osin-Adedoyin. After the 1st Mogaji Abibu Bankole that was appointed by Oba Sule, others ascended the stool by being the most senior/elderly.
g) That Adedoyin initiated the move to relinquish the land at Osin-Adedoyin village to the progenitors of the appellants and his father Oba Sule ratified Prince Adedoyin’s intention and made the pronouncement by himself to that effect that he released the entire Osin land as gift to the family/progenitors of the appellants.
h) After the gift of the said land from Oba Sule, the appellants family had since that time become seized of the entire land and have been exercising series of the rights of ownership such as transferring their interest in the land to 3rd parties as evident vide Exhibits A, B, C and D.
i) The appellants further proved their title to the land by calling their immediate neighbors by the dint of which they satisfactorily established their acts of ownership over the land for a sufficient length of time positive enough through the evidence of CW4, CW5, CW6 and CW7.
j) The appellants further proved their case by producing title documents evidencing sales of part of their land between their families and other buyers as far back as over forty (40) years ago. These documentary evidence are Exhibits; A, B, C and D.
k) The family of Haileru Adedoyin is not completely the same thing as Adedoyin Ori-Okoh compound. From the line of evidence at trial Court, this is evidently clear when CW1 (doubles as the 1st appellant) stated in the course of his response to a cross-examination question at trial Court particularly at page 291 from lines 30-34 of the record that:
Daudu Fagba is not the head of Oba (Prince) Adedoyin family. There is no Daudu Fagba in Adedoyin land. Daudu Fagba is my younger brother. He is not the head of Adedoyin family but the head of Woru family. I am the traditional head of Osin Adedoyin. Alhaji Alabi Daudu Fagba (i.e DW1) is the traditional head and current head of Oba Suleiman family but he is not the head of Adedoyin family.
Submitting that the Adedoyin family is quite different from the Woru Fagba family with no common heritage; referred to pieces of evidence elicited through cross examination, and submits that from the facts admitted, it is clear that respondent is not a direct descendant of Haileru Adedoyin and therefore cannot inherit.
He also alluded to the fact that the duty of the Court is to decide cases based on actual facts and not on hypothetical facts or the realm of speculation, and further alluding to the holding of the lower Court, to wit:
Both parties have traced the land in dispute to Oba Shitta, the 2nd Emir of Ilorin; Oba Suleiman, the 6th Emir of Ilorin; Haileru Adedoyin, the son of Oba Suleiman; and both Baale and Bilikisu, who were Haileru siblings. They agreed that the land in dispute was originally owned by Oba Shitta. According to the claimants, their progenitors, Habibu Bankole and Aro Iyun were settled on the land by Oba Suleiman and Haileru Adedoyin. They said Haileru Adedoyin later, after consulting with his father gave the land out as a gift to both Abibu Bankole and Aro Iyun.
He submitted that the misconception by the trial Court led it to conclude that the land is joint property to other people instead of the appellants family. On the lineage of Oba Suleiman, counsel stated that appellants pleaded and gave evidence that:
a. Oba Suleiman (Sule) gave birth to Adedoyin as his second male child.
b. Adedoyin gave birth to Saadu and Ahmodu.
c. Saadu gave to Baale while Ahmodu gave birth to Alhaja Bilikisu Alake.
d. Both Baale and Alhaja Bilikisu Alalke died childless which marks the extinction of the lineage/descendants of Haileru Adedoyin.
He concludes that the trial Court ought to have concluded that the appellants successfully established their title to the land since Dw1 and Dw2 are not of the lineage of Haileru Adedoyin.
On issue three, it was submitted for the appellants that the trial Court wrongly interpreted the appellants counsels address, Cw4s statement on oath and Exhibit C which led to an erroneous decision. He then submitted that the purported grounds or facts from which the trial Court arrived at the conclusion that:
All these facts convinced me that the land in dispute was not given to the claimants outright. The grant was not absolutely because Oba Suleimans family did not divest themselves from the land to the knowledge of the claimant.
Submitting that the trial Court misapprehended the appellants case and thereby went ahead to impute facts and evidence not adduced by the appellants.
On issue four, learned counsel submitted that the trial Court lost track of the case presented before it consequent upon which it arrived at erroneous findings. He submits that appellants never traced the land to Oba Shitta, but strictly to Oba Suleiman, and argued that it was not the case of the appellants that Adedoyin stock or branch is into two extractions, as generated by the trial Court. He argued also that evidence was admitted that Oba Suleimans lineage is divisible into two, Woru also known as Fagba and Adedoyin also known as Ori-Okoh, that Oba Suleiman partitioned the land amongst the two siblings, and that Dw1 is of Woru (Fagba) branch, while the respondents are not of Oba Suleimans dynasty. He submits that the trial Court therefore erred in holding that:
There is evidence to show that the claimants recognized the interest of the two extractions of Haileru Adedoyin (Fagba and Ori-Okoh families) in the land in dispute. CW2 agreed that DW2 is the current head of Adedoyin family and CW3 agreed that both DW1 and DW2 must approve and bless whoever is to be appointed Mogaji Adedoyin village. Can it therefore be said in the circumstance that the claimants are the customary owners of the expanse of land on Osin Adedoyin village or can it be said that the claimants have proved customary ownership of the land in dispute. I think not.
He posits that the evidence in issue was misinterpreted as Cw2 and Cw3 were not referring to Dw1 and Dw2 in person, but their traditional offices rooted in Oba Suleiman. It was further submitted that going by the appellants pleadings and evidence, all the legal burden imposed on them by law was discharged, and the respondents by the authority of Obijiaku vs. Offiah (1995) 7 SCNJ 142, which held that:
Once the plaintiff has discharged his own burden of proof and the defendant fails to lead evidence in support of material points in his case, the only reasonable legitimate inference is that the plaintiffs version is more probable.
Posits that the respondent having agreed that Oba Suleiman partitioned his land amongst his two children is enough for the trial judge to infer that it is immaterial whether it was Oba Shitta or Oba Suleiman that actually founded Osin Adedoyin. He argued that the trial Court mixed up the two branches of Oba Suleiman dynasty and thereby arrived at a perverse finding, urging the Court to employ Section 16 of the Rules of this Court and to resolve the issue in favor of the appellants.
On issue five, it was the contention of the learned counsel that the trial judge was not right in holding that Exhibit B does not relate to the land in dispute for reasons adduced thereunder. He submits that Exhibits B and C showed that appellants family sold the land therein to the family of Cw5 and Cw7, who have never been challenged by the respondents till date.
On issue six, it was contended that Exhibit E was wrongly admitted being an unregistered document, whereas Exhibits C and D cannot be placed on the same pedestal with Exhibit E. He relied on the case of Unity Bank Plc. vs. Olatunji (2013) 15 NWLR (pt. 1378) 503 at 535 to the effect that the duty of the Court is to decide cases based on real and actual facts and not on hypothetical facts, arguing that Exhibit D was not pleaded as conferring title on Cw7, but as proof of equitable interest. Further relying on Atanda vs. Commissioner for Lands and Housing, Kwara State and Anor (supra) and a host of other cases, counsel urged the Court to hold that Exhibits C and D were properly admitted while Exhibit E was wrongly admitted.
With regard to issue seven, it was contended that the family or lineage of Haileru Adedoyin has suffered permanent extinction with death of Alhaja Alake in 2013, and therefore no more survivors in the lineage of Haileru Adedoyin to be called as witnesses to the knowledge of the trial Court. He alluded to the evidence adduced by the respondents which is to the effect that the land in dispute belongs to Adedoyin family and only a member of such family can challenge a person on the disputed land, and the further statement by Dw1 that I am not a direct descendant of Haileru Adedoyin and questioned the trial Courts holding that appellants ought to have called a witness from the Adedoyin family to testify in support of their claim.
He argued that the appellants having established that the land in issue belonged to Adedoyin and thereby their family land by virtue of the gift of same to their ancestors, the onus of proof shifts on the respondents to show that they are of the Adedoyin lineage. He argued further that the respondents duty does not stop at denying the appellants traditional history, but must go further to present a contrary history to that of the claimants. The case of Okwaranonobi vs. Mbadugha (2013) 17 NWLR (pt. 1383) 255 at 275 – 276 was cited in support of the principle of law. He concludes by stating that the mere fact of being an inhabitant of Adedoyin Ori Okoh is not the same as being members of the Adedoyin family.
In his response, Mr. A. A. Ibraheem for the respondent identified two issues in opposing the appeal. On his first issue argued at pages 4 – 15 of his brief;
It was contended by learned counsel for the respondent that going by the pleadings and evidence adduced by the parties, the bone of contention appeared to be the alleged grant of the land in dispute by Oba Suleiman/Haileru Adedoyin to the Appellants. He posits that this being so, the appellants as plaintiffs before the lower Court had the onus of proving same, and referred to the cases of Adewuyi vs. Odukwe (2005) 7 SC (pt. 11) 1 at 14, Kaiyaoja vs. Egunla (1974) 12 SC 49 at 61, Alhaji Fatai Alani Matanmi & 2 Ors vs. Victoria Dada & 1 Or. (2013) 31 WRN 1 at 30, Erinle vs. Aluko (2014) 9 WRN 77 and Olubodun & 4 Ors vs. Lawal & Anor. (2008) 6-7 SC (pt. 1) 1 at 26 in support of the principle.
He argued that there was no documentary evidence showing the grant of the land from the customary owners of the land to the claimants ancestors; therefore the claimants are relying on oral traditional evidence and acts of possession in view of their pleadings and the evidence adduced.
He then referred to Section 66 of the Evidence Act, which provided that:
Where the title to or interest in family or communal land is in issue, oral evidence or family or communal tradition covering such title or interest is admissible.
And the case of Alli vs. Alesinloye (2000) 4 SC (pt. 1) 111 at 134 – 135 per Iguh JSC to support the legal position.
He contended upon the foregoing principle that claimants had the evidential burden of calling members of the Oba Suleiman/Haileru Adedoyin or any other person who had or has the peculiar special relationship and circumstances, knowledgeable enough to testify in support of the alleged grant or gift. He argued that aside the Pw1 Pw3 who are the claimants, no such independent witness knowledgeable enough on the facts asserted was called upon to testify as demanded by law.
Analyzing, the pieces of evidence adduced by the Pw4, Pw5, Pw6 and Pw7, with regards to the qualifications of witnesses as required by law, particularly Section 66 of the Evidence Act, opined that appellants had the bounden duty of proving the grant claimed- Adisa vs. Oyinwola (2000) 6 SC (pt. 11) 47 at 74. Learned counsel goes on to submit that claimants failed to establish how and who founded the land in dispute in accordance with tradition, opining that by the authority of Ezeokonkwo vs. Okeke (2002) 5 SC (pt. 1) 44 at 52 – 53 and Erinle vs. Aluko (2014) 9 WRN 77 at 89 -90 a party relying on traditional history must prove:
1. Who founded the land in dispute,
2. How the land was founded,
3. Particulars of the intervening owners through whom they claim and
4. The person on whom the title in respect of the land was devolved since its first founding.
He contended that the defendant/respondent in paragraph 4- 10 of the statement of defense, averred that Oba Suleiman had more than the two surviving children including Mohammed Bello Aremi-Oye, Mohammed Nuhu, Usman Oloko Alfa and Baale amongst others, and by paragraph 7 thereof it was indicated that the land in dispute devolved unto Haileru Adedoyin of Ori-Okoh and his young brother Baale and Bilikisu Alake who had been exercising diverse acts of ownership through the defendant without let or hindrance from the claimants which averments were not denied but admitted by the Pw1 at pages 291, Pw3 at page 295 of the record.
He faulted the submissions of the appellants in their paragraphs 5.10, 5.19 of the brief asserting that such was contrary to their averment in paragraph 12 of the statement of claim.
He alluded to the testimony of Pw1, to the effect that Alh. Alabi Daudu Fagba Dw1, is the traditional head and current head of Oba Suleiman family and further that it is not true that Dw1, Dw2 and Dw3 were not related by blood to Haileru Adedoyin.
He goes on to submit that the alleged extinction of the Adedoyin family in the brief was nowhere pleaded, as addresses cannot take the place of evidence; see Biosola (Nig.) Ltd (2014) WRN 77 at 100 102 and Gbadamosi vs. Ajibode (2012) 5 WRN 144.
He submits that reliefs A and B being declaratory in nature, the law is positioned in that appellants must succeed on the strength of the evidence adduced by them and not on the weakness of the defense case. This principle applies even where the other party admits the claim. See Ibekwe vs. I.S.E.M.B. (2009) 5 NWLR (pt. 1134) 234 at 252 and The PDP vs. INEC (2012) 39 WRN 131 at 143.
He maintains that appellants failed to produce cogent and acceptable evidence of tradition entitling them to the reliefs sought, as their witnesses lacked the qualification demanded by Section 66 of the Evidence Act. He maintains further that reliefs C and D being parasitic to the outcome of reliefs A and B, the trial Court was right in holding that the claimants now appellants failed to establish their claim.
On the second issue argued by the learned counsel for the respondent from pages 15 to 22 of his brief, it was argued that the trial Court rightly evaluated the pieces of evidence both oral and documentary, and also considered the submissions of the claimants in the final written addresses before arriving at the right decision. In particular in arriving at the decision that Exhibits A- E which are registerable instruments were not so registered, and that Exhibit B does not relate to the land. He then alluded to the holding of the trial Court at pages 339 of the records opining that the trial Court was not wrong; nor was any miscarriage of justice occasioned thereby.
Further analyzing the pieces of evidence adduced, the submissions of learned counsel for the appellants vis-a-vis his complaints in the grounds of appeal, learned counsel insists that the trial Court diligently evaluated the evidence adduced before him and therefore this Court has no business interfering with the same. He cited the case of Agbeje vs. Ajibola (2002) 1 SC 1 at 16 and 17.
He prayed the Court based on the foregoing to dismiss the appeal and to affirm the judgment of the lower Court.
The appellants replied to the respondents brief, wherefore the arguments and authorities referred to by the respondentwere responded to and also distinguished. I will further refer to the submissions therein in the resolution of the issues.
Having therefore given due consideration to the arguments of the two learned counsel, I am of the humble view that the two principal issues calling for the resolution of this Court are firstly whether the claimants now appellants established their claim before the lower Court on whether the claimants, established the fact that the land under consideration, was gifted to their ancestors by the said Haileru Adedoyin with the concurrence of his father Oba Suleiman, and secondly whether the lower Court appropriately evaluated the evidence both oral and documentary, in arriving at the conclusion that claimants failed to prove their claim. Having said so, it is my belief that the issues raised by the respondent, slightly tinkered with can best guide this Court in the resolution of this appeal.
With respect to the first issue, which reads, whether going by the evidence of the claimants and their witnesses, the lower Court was right in holding that claimants failed to establish the grant/gift of the land in dispute by Oba Suleiman/Haileru Adedoyin and therefore not entitled to any of the declaratory reliefs sought, it is basic as established through case law that where a plaintiff claims for declaratory reliefs with respect to alleged ownership of land, the plaintiff has the onus of proving his claim. This he must do by relying on the strength of his case, and not on the weakness of the defense case, although he is at liberty to make use of the defense evidence where it assists his case.
See Omo JSC in Bankole vs. Pelu (1991) 8 NWLR (pt. 211) 523, Fasikun II & Ors vs. Oluronke II & Ors (1999) 1 SC 16, Josiah Akinola vs. Fatayinbo Oluwo (1962) 1 SCNLR 352, Alade vs. Awo (1975) 4 SC 150 (reprint). It is basic therefore with respect to the case at hand that for the plaintiff to have succeeded, he must satisfy the Court as to the precise nature of the title claimed, and the Court must also be satisfied with the evidence establishing title of the nature claimed, in our case absolute grant/gift.
Relative on the issue is the averments of the claimants contained in paragraphs 19, 27, 28, 29, 30 & 33 to wit:
19. The claimants aver that, shortly after Oba Sule gave the said Adedoyin land to Adedoyin that Abibu Bankole was sent to move from Ori-OKoh, Ilorin to go and settle at the place now known as Adedoyin village.
27. The claimants aver that during the life time of Oba Sule, Adedoyin resolved to appreciate those two great warriors for their loyalty and unflinching support towards him and his fathers kingdom or domain based upon and after due consultation with his father, Oba Sule, relinquished his Osin land gave same out as gift to both Abibu Bankole and Iyun.
28. Consequently, Oba Sule ratified same and therefore directed that the said Osin land which Adedoyin gave to Bankole and Iyun, who are otherwise known by their traditional office title of Mogaji be named after their Mogaji title based upon which the village now known as Adedoyin was formally known, called and referred to as Osin-Mogaji.
29. The claimants aver that as at the stage of this land gift arrangement between Adedoyin, Bankole and Iyun; Bankole was then the first and only installed Mogaji of Osin Mogaji. Thereafter, Iyun reigned in his stead as the Mogaji having succeeded him in such capacity.
30. Later, both Abibu Bankole and Iyun were deliberately moved to Osin Mogaji and assigned with the role of the headship of the land until the demise of Oba Sule.
33. The claimants aver that Oba Sule really integrated both Bankole and Iyun to all aspects of his family endeavours such that even at the Ori-Okoh Adedoyin family stock, a number of rooms are/were allocated to both Bankole and Iyun and their lineage till date.
It is explicit from the foregoing paragraphs of the statement of claim as produced, that the claimants relied on the alleged gift of the land in contention to their progenitors from Haileru Adedoyin the son of Oba Suleiman with the concurrence of his father to found their claim of the land.
The defendant in its response to the claim, stated in his statement of defense, particularly paragraphs 4, 5, 6 & 7 thereof to the effect that:
4. The Defendant states that the whole land in Osin Adedoyin originally belonged to the 2nd Emir of Ilorin who was called Oba Shitta and reigned between 1842-1860, the defendant says that the said Oba Shitta gave birth to Oba Suleiman the 6th Emir of Ilorin and there was no time the descendants of the claimants were granted the land by said Emir, Oba Suleiman or any subsequent Emir and Adedoyin himself at no time granted or allowed the descendants of the claimants the land in dispute.
5. The Defendant states that contrary to averment in paragraph 12 of the statement of claim Oba Suleiman who was the 6th Emir of Ilorin and reigned between 1896 to 1915 was blessed with many male children, the prominent among them were Woru, Mohammed, Bello Aremo Oye (who was christened by virtue of being the 1st child born on the throne), Mohammed Nuhu, Usman Oloko-Alfa and Haileru Adedoyin who was the 1st Daudu of Ori-Okoh and Baale among others.
6. The Defendant states that Haileru Adedoyin was not blessed with any child but was survived and succeeded by his younger brother called Baale and younger sister called Bilikisu Alake.
7. The Defendant states that the land in Osin Adedoyin devolved unto Haileru Adedoyin of Ori-Okoh, Ilorin, his younger brother Baale and Bilikisu Alake who were born of same mother to Oba Suleiman after the death of their father Oba Suleiman in 1915 and since then the said late Adedoyin and his late sibling of Ori-Okoh have been exercising diverse acts of ownership without any hindrance over the said land in dispute to the knowledge of other descendants of the 2nd Emir of Ilorin including the Daudu Fagba’s family which they all acknowledge up till date as the accredited head of Oba Suleimans family.
The defendant from the foregoing, denied the claimants averments thus joining issues on the ownership of the contended land.
Now Section 131(1) of the Evidence Act 2011 is explicit; it commands that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, shall prove that those facts exist. In the context of the instant case, the law places the burden of proof on the claimants, having asserted that the land under contention was gifted to their progenitor, and thereby the evidential burden of proving by cogent, credible and acceptable evidence showing that the land in question was indeed given to them as alleged. This legal principle has been established in so many decisions of this Court and that of the apex Court, including the Supreme Court case of Odofin vs. Ayoola (1984) 11 SC 72 at 106, where it was held that:
It is well settled that where a plaintiff relies on grant or original settlement as title to claim the land in dispute, the burden is on him to establish such grant or original settlement, this he can do by cogent and acceptable evidence of tradition, whether or not accompanied by exercise of dominion which alone may be sufficient to establish title. see also the decisions of Erinle vs. Aluko (supra); Olubodun & 4 ors vs. Lawal & Anor, where it was also held that:
It is well settled that where the plaintiff relies on a grant or original settlement as title to claim the land in dispute, the burden is on him to establish such grant or original settlement this he can do by cogent and acceptable evidence of tradition, whether or not accompanied by exercise of dominion which also may be sufficient to establish title it follows therefore that where traditional evidence of that alleged from which the title is derived, is lacking or rejected, as was in this case, such evidence is not only merely inconclusive but also cannot be relied upon whether any other acts positive or numerous can support evidence of ownership. See Kuma vs. Kuma (1936) 5 WACA 4, Nwokafor vs. Udegbe (1963) 1 ALL NLR 107, Onobruchere vs. Esegine (1986) 1NWLR (pt. 19) 799.
In proving their case, the appellants called seven witnesses and tendered some exhibits, and from the totality of the evidence adduced, it is evident as argued that none of the documents exhibited by them, established or showed that the alleged grant or gift to them, was by way of any proven document. That being the case, the respondents submission that claimants relied on oral traditional evidence and acts of possession by the claimants in establishing the said grant of the land in dispute to them appears to be correct.
Where the claimants proceeds and offers evidence in line with traditional history/evidence, admittedly is one of the ways of proving title to land as established in the case of Idundun vs. Okumagba (1976) 1 NMLR 200 per Fatai-Williams JSC.
The position of the law with regards to proof by traditional history is as set down in the case of Idundun vs. Okumagba (supra),Piaro vs. Tenalo(1976) 12 SC 31, Balogun vs. Akanji (1988) 1 NWLR (pt. 70) 301 amongst many others, that where a plaintiff such as the claimant in the lower Court pleads his primary root of title based on traditional history, he must in order to succeed prove the following:
a. who founded the land.
b. how it was founded and,
c. particulars of the intervening owners through whom the plaintiff or claimant claims.
The appellants from paragraphs 5.07- 5.09 of the brief, alluded to some paragraphs in the statement of defense, asserting that respondent admitted paragraph 17 and 18 of the statement of claim, thereby positing that a fact not denied is deemed admitted. Appellants still argued that from evidence it is clear that respondents have no interest in Halieru Adedoyins property, since they do not have the right of inheritance. Appellants further hold the view that the cases of Matanmi & ors vs. Victoria Dada (supra), Odofin vs. Ayoola (supra) and other cases cited are inapplicable and or supports the appellants case.
Let me state at the outset that the appellants are off target. The position of the law still remains that where the source of the claimants title is challenged as in the instant case, the claimant must establish his title to such land, this he must do based on the strength of the case made by him, regardless of the weakness of the defense case, and further satisfy the Court as to source of the title founding his claim. He cannot ignore how his progenitors allegedly got the land and concentrate only in the pursuit of his own title to the said land, as he would not have acquired a valid title if his predecessors in title had no valid title to give. See Adeyemi vs. Ovba (2017) ALL FWLR (pt. 870) 1004 @ 1051 per Tsammani JCA.
In the instant case, the claimants root of title having been founded on the assertion that Oba Sule integrated the progenitors of the appellants into his family fold, and thereby relinquished the entire Osin land as gift to the family/progenitors of the appellants, must proceed to plead and by cogent, credible and acceptable evidence establish the assertion made. See Haruna vs. Isah (2016) ALL FWLR (pt. 818) 918 @ 942, Osukpong vs. Eduoika (2016) 1 NWLR (pt. 1493) 329 @ 336, Elegushi vs. Oseni (2005) 14 NWLR (pt. 945) 348.
The Apex Court in Odofin vs. Ayoola (supra) gave guidance as to what is expected of the appellants thus;
Where a party relies on and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the trial Court. Other evidence of acts of possession after the grant will merely go to strengthen the grant. But where as in this case, the proof of the grant is inconclusive, the bottom is knocked out of the plaintiff/appellants claim. When his root ceases to stand, the stem and branches will fall with the root.”
Or as provided by Section 66 of the Evidence Act,
Where the title to or interest in family or communal land is in issue, oral evidence or family or communal tradition concerning such title or interest is admissible.”
I do agree with the learned counsel for the respondent that in placing reliance on traditional history, the direction of the Apex Court in the case of Alli vs. Alesinloye (2000) 4 SC (pt. 1) 111, to the effect that evidence of tradition may be more easily established if it comes from members of the family or community concerned, and also Erinle vs. Aluko (supra) becomes necessary.
The first to third witnesses, the claimants in this case gave evidence on their behalf. Their evidence are similar all chronicling the statement of claim. It is stated therein, that Oba Suleiman is said to have only two children, Adedoyin and Woru. The defendant on the other hand averred that apart from Woru and Haileru Adedoyin, Oba Sulaiman had other children, who are Mohammed, Bello Aremo-Oye, Mohammed Nuhu, Usman Oloko-Alfa and Baale. It was further averred by the defendant that the land in dispute devolved upon Adedoyin of Ori-Okoh and his younger brother Baale and Bilkisu Alake, who exercised diverse acts of ownership through the defendant without hindrance from the claimants. The 3rd claimant on the claimants averment that Oba Sule had only two children, had this to say under cross examination;
”Haileru Adedoyin the 1st Daudu of Ori-Okoh was the son of Oba Suleiman, Mohammed Sule Aremo Oye, was also the son of Oba Suleiman, Mohammed Nuhu and Usmanu Oloruko Alfa were also children of Oba Suleiman. It is true that the first Daudu of Ori-Okoh Halieru Adedoyin was not survived by a child. It is true Bale and Bilkisu Alake were brother and sister of Halieru Adedoyin. Daudu Fagba and Daudu Ori-Okoh are relations of Oba Suleiman.”
The first claimant also admitted that apart from the two children listed by the claimants, himself inclusive, Oba Suleiman also had Mohammed and Bello Aremu Oye, as his children. This to me knocks of the claimants contention that Oba Suleiman had only two children, and thereby gave out his properties to the two, thus founding two lineages of Oba Suleiman.
The respondent now insist that the claimants before the lower Court failed to produce cogent and acceptable evidence of tradition to entitle them to the declaratory reliefs sought, there being no evidence in line with the provisions of Section 66 of the Evidence Act, and the trial Court right to have dismissed their case. The lower Court in its judgment, faulted the appellants for not being specific on the land being claimed by them, and further preferred the traditional evidence laid by the respondents over and above that of the appellants in dismissing the claimants case.
I have therefore given due consideration to the submission of the learned counsel with regard to whether the precise area in contention was laid before the lower Court by the claimants.
See Adelusola vs. Akinde (2004) 12 NWLR (pt. 887) 295;
A plaintiff seeking a declaration of title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates.”
I take note of the claimants averment at paragraph 18 of the statement of claim, where it was averred that Oba Sule gave the expanse of land at Osin Mogaji now called Osin Adedoyin village to his second son Adedoyin and his heirs in perpetuity. The defendants on the other hand alluded to the said land by paragraph 7 of the statement of defense, and whereas the said land rightly forms the subject matter in contention, the identity of the land was not made an issue. It seems clear to me therefore that the identity of the land described as Adedoyin land by both parties, is clear to them from their various averments and pieces of evidence, and by the authority of Fatuade vs. Onwoamanam (1990) 2 NWLR (pt. 132) 322, the need for a sketch plan or survey plan becomes unnecessary. See also Atanda vs. Iliasu (supra), Odofin vs. Oni (2001) 1 SC 13, Okpaloka vs. Umeh (1976) 9-10 SC 269.
To this extent, it is my humble view that the lower Court was in error basing his judgment on the claimants non production of a survey plan in the description of the disputed land, when such has not been made an issue, and clearly understood by the parties.
The remaining but pertinent question, would be whether the claimants proved the gift of the land in question to their progenitors as claimed as required by law.
Both parties alluded to the decision of the apex Court in the case of Adisa vs. Oyinwola (supra) on how the proof of grant, as alleged by the claimants can be proved. Indeed, the evidence of witnesses who have peculiar, special relationship, circumstances, intimacy, age long association, interaction and or relationship with the land from time immemorial between the family, community and those other land owners who are clearly knowledgeable to give cogent traditional evidence on the alleged grant or gift becomes necessary. I am swayed by the argument of the respondent herein that the evidence of the PW4 to PW7 are not helpful to the claimants in that regard. For instance, while the PW4 in his deposition stated that the land was given to the forefathers of the claimants, under cross-examination admitted that Bankole, the forefather of the claimants was a caretaker for the 6th Emir Oba Sule in respect of the land as told to him by the father of the 1st claimant. He further admitted that Daudu Fagba is a descendant of Oba Suleiman.
PW5 on the other hand who deposed that the land was given to the claimants progenitors as claimed, turned round under cross examination to say that he does not know the heritage and who is who in Osin Adedoyin village, nor does he know Oba Suleiman or his son Adedoyin, or Habibu Bankole and Aro Iyun. He also did not witness the gift or grant to the claimants progenitors. All he knows is Exhibit C sold to him by one Ibrahim Akanbi, and incidentally, his name is not borne on the document in reference. PW6 who had earlier stated that he knows both Bankole and Aro Iyun, turned later to say, the two died before he was born. PW7 does not know the 1st claimant and or his father.
On the other hand, the respondent gave evidence and called two other witnesses. The trial Court examined the evidence rendered, believed the respondent and dismissed the claimants case.
In any case, the appellant who had premised his claim on the grant of the land by one Adedoyin, thereby recognizing him as the original owner, must convince the Court of such grant, particulars of the intervening owners, and the person or community on whom the title in respect of the land devolved, since from the time of the grant. This the appellants failed to do, and cannot thereby succeed upon any perceived weakness of the respondent. I agree with the respondent and the lower Court, that appellants indeed failed to satisfy the lower Court with cogent and believable evidence of traditional history in support of their claim, and therefore fail to understand the appellants complaint with regard to the lower Courts comprehension of the case before him. Having also examined the evidence adduced by the appellants in line with the position of the law, I am of the humble but firm view that appellants failed to discharge the onus of proof that would ordinarily entitle them to the claim. I resolve this issue in favor of the respondent.
The appellants complaint with regards to issues three to seven deals, with the lower Courts evaluation of the evidence adduced before it. This therefore agrees with the respondents issue two crafted for resolution.
It is an elementary fact, that a trial Court is in the best position in the evaluation of evidence due to its vantage position of listening first hand to the witnesses as they testify, and watching their demeanor in assessing their credibility. The Court has a duty first in time, to receive all available evidence, sifting through the evidence and ascribing value to the evidence received and weighing same on the imaginary scale to see which amongst the parties adduced evidence which is heavier in terms of its value. See Olufosoye & Ors vs. Olorunfemi (1989) LPELR-2615 (SC). For as held in Bamgboye vs. University of Ilorin (1999) 10 NWLR (pt. 622) 290:
”It is trite law that findings of primary facts are matters peculiarly within the competence of the Court of trial, the assessment, evaluation, appraisal of evidence emanating therefrom and the ascription of probative values thereto being primarily and pre-eminently that of the trial Court and any interference by an appeal Court therewith is by law, confined to narrow and limited dimensions.”
The cases of Chief Ebba vs. Ogodo (1984) 1 SCNLR 372; Atuyeye vs. Ashamu (1987) 1 NWLR (pt. 49) 267; Thomas vs. Thomas (1947) AC 484, and Woluchem vs. Gudi (1981) 5 SC 279, Raphael vs. Ezi(2015) 12 NWLR (pt. 1472) 39 @ 58,IREC Ltd vs. Oni (2017) ALL FWLR (pt. 876) 145 @ 194. amongst many others in support of the above legal position.
The appellate Court will therefore be slow to interfere with the evaluation of evidence by a Court of trial, unless and until it is shown that the trial Court did not properly evaluate the evidence before it, or where it made a wrongful approach to the evidence adduced, or where it failed to properly make good use of the opportunity of seeing or listening to the witness testify. See Eholor vs. Osayande (1992) NWLR (pt. 249) 524, Okunzua vs. Amosu (1992) NWLR (pt. 248) 416, Fatuade vs. Onwoamanam (1992) 7SCNJ 243, Ogbechie vs. Onochie(2) (1988) 1 NWLR (pt. 70) 370.
In the instant case, the trial Court considered Exhibits A – E, from pages 319 to 310. The Court then appraised the oral evidence adduced by the parties from pages 310 to 331 of the same records, and further took into consideration the submissions of the learned counsel from pages 331 to 338, where he identified the appellants claim at page 339 to be:
According to the claimants, their progenitors Habibu Bankole and Aro Iyun were settled on the land by Oba Suleiman and Haileru Adedoyin. They said Adedoyin later after consulting with his father gave the land out as a gift to both Bankole and Aro Iyun.
Thereafter and precisely at pages 340 – 341, the Court reasoned that:
The claimant agreed under cross-examination that DW1 is the current head of Oba Suleimans family. PW2 agreed that the claimants progenitors were not children of Oba Suleiman, and that the current head of Adedoyin family of Ori-Okoh is DW 2. The claimant did not find it necessary to call as a witness any person from Adedoyin family to give evidence in support of their claims, and DW 2 who is the current head of Adedoyin family did not agree with the claims of the claimants The grant was not absolute because Oba Suleimans family did not divest themselves from the land to the knowledge of the claimants.”
It is the position of the law, that for a complaint on improper evaluation as in the instant case to have meaning, the appellant or complainant must clearly identify and specify the evidence on which the complaint was made to enable the appellate Court to consider whether or not there was proper evaluation in support of the findings, conclusions and eventual decision of the Court of trial with respect to the area of dispute. He must also demonstrate to the Court on appeal, that but for the failure to evaluate or properly evaluate the pieces of evidence both documentary and oral, the decision of the Court would have been in his favor. See, Ojokolobo vs. Alamu (1998) 9 NWLR (pt. 565) 226, Baba vs. NCATC Zaria (1991) 5 NWLR (pt. 192) 388, Agbi vs. Ogbeh (2006) ALL FWLR (pt. 329) 941, Opu-Ado vs. Abere (2017) ALL FWLR (pt. 910) 195 @ 231 per Lawal Garba JCA.
In other words, the appellant has the onus of satisfying the appellate Court that the decision on appeal is wrong, and where he fails, the decision appealed on stands. See Obodo vs. Ogba (1987) 3 NWLR (pt. 54) 1, Raphael vs. Ezi (supra) @ 61.
Looking at the complaints by the appellants by their issues 3, 5 and 6, the lower Court rightly in my view addressed their worth at page 336 of the record, where he held that Exhibits A, C, D, and E, having not been registered by virtue of Sections 3 and 15 of the Lands Instrument (registration) Law Laws of Kwara State 2007, are defective and therefore inadmissible in establishing title. I think the learned trial judge was right. A land instrument can only be admitted to show the price paid, and not in proof of the existence of title. But and that notwithstanding, a grantor can only convey what he has, and where claimants fail to establish title, and in our case, where the claimants fail to prove ownership by grant as claimed, the fact that they are in possession, does not give them the right to transfer any title, which they may not have in the first place.
Of equal importance is the consideration of the appellants complaints, in issues four and seven, where appellants asserted that there is no living member of the Adedoyin family, who ought to be called to give evidence in support of their claim. I agree with the respondent that it is not part of the claimants case, having failed to plead and to lead evidence in that regard.
It is not of any value raising the issue at the address stage, since addresses cannot take the place of evidence. I am not surprised that the trial Court in the tail end of his judgment, specifically at page 32 of the judgment, stated that from the pleadings and the evidence of the parties, the onus is on the claimants to proof (sic) absolute grant of the land in dispute to their progenitors, and also to prove that the families of Oba Shitta and Oba Suleiman had divested themselves of the title to the land in dispute, and after fully placing the evidence laid to considerable analysis, of the view that claimants failed in proving their entitlement to the reliefs sought.
Upon a careful and dispassionate consideration of the evidence before the lower Court, I was not convinced that this Court needs to interfere with the well-considered decision of the lower Court. Indeed as held in the Supreme Court case of Agbeje vs. Ajibola (2002) 1 SC 1 @ 16, where a Court of trial without question justifiably appraises the facts, this Court and any other appellate Court will not be in the position to substitute its own views for those of the trial Court, in the face of ample evidence supporting the trial Courts findings and conclusion. I also resolve this issue in favor of the respondent.
Having resolved all the issues against the appellants, the inevitable conclusion is that the appeal is one lacking in merit, for which I dutifully dismiss. In the event, the decision of Justice I. A. Yusuf, delivered on the 19th day of December, 2016, in suit No. KWS/230/2014, between Alhaji Sulemonu Ajape Bankole Adedoyin and two others vs. Alhaji Salimonu Amoo, wherein appellants claims were dismissed is hereby affirmed.
Claimants shall pay costs of N50, 000.00 to the respondent.
APPEAL DISMISSED.
CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment of my learned brother, HAMMA AKAWU BARKA, JCA. His Lordship has comprehensively resolved the issues that arose in the appeal, I agree with his reasoning and conclusion arrived at and adopt same as mine in dismissing the appeal for lacking in merit. I dismiss it and abide by the order made as to costs in the leading judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I have read before now the judgment just delivered by my learned brother HAMMA AKAWU BARKA J.C.A. I agree with his reasoning and conclusion, I also dismiss the appeal with cost of N50,000.00.
Appearances:
Sunday Olawepo, with him, J. A. Adeyeye and A. O. Babalola For Appellant(s)
A.A. Ibrahim with him, A. O. Ajiboye and S. A. Aderinto For Respondent(s)
