AMOLEGBE & ORS v. THE REGISTERED TRUSTEES OF THE UNITED AFRICAN TRUSTEES METHODIST CHURCH & ORS (2022)

AMOLEGBE & ORS v. THE REGISTERED TRUSTEES OF THE UNITED AFRICAN TRUSTEES METHODIST CHURCH & ORS

(2022)LCN/16212(CA)

In the Court of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, January 12, 2022

CA/IB/91/2016

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

1. MR. GANIYU AMOLEGBE 2. MR. SIMEON OLABODE 3. MR. AUGUSTINE ODUFALA 4. MR. ADEBAYO ANIFOWOSE 5. MR. SEGUN IDOWU 6. MRS. OMOLARA AYENURO 7. MR. BUKOLA SOBOWALE 8. MR. MUKAILA OWONLA (For And On Behalf Of Themselves And Other Land Owners/Landlords Of Mebishere Village, Ogijo) 9. CHIEF SUNDAY LAWAL 10. SAMUEL OLAWALE ALOKOLARO 11. CHIEF NURUDEEN AKINSANYA 12. CHIEF JAMIU TAOLE (For And On Behalf Of Themselves And The Osholigbehin Family Of Mebishere Village, Ogijo) APPELANT(S)

And

1. THE REGISTERED TRUSTEES OF THE UNITED AFRICAN TRUSTEES METHODIST CHURCH 2. OGUN STATE GOVERNMENT 3. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, OGUN STATE RESPONDENT(S)

RATIO

WHETHER OR NOT A CLAIMANT MUST RELY ON THE STRENGHT OF HIS CASE AND NOT ON THE WEAKNESS OF THE DEFENCE

It is trite that in a claim for declaration of title to land a claimant has the onerous task of establishing his title on the strength of his own case and not the weakness of the defence. See ARIJE VS. ARIJE (2018) 16 NWLR (PT. 1644) 67; EZEIGWE VS. AWUDU (2008) 11 NWLR (PT. 1097)158 AND GENERAL COTTON MILL LIMITED VS. TRAVELLERS PALACE HOTEL (2019) 6 NWLR (PT. 1669) 507. One of the exceptions to this general rule is where the defendant has filed a counter-claim.

THE DUTY OF A PARTY SEEKING DECLARATION OF TITLE TO LAND

The law is settled that a party seeking a declaration of title to land must plead and prove his entitlement to the land claimed. He must plead and prove how he became the owner of the land, the identity and the size of the land. He must establish by credible evidence that he is entitled to the reliefs claimed. See PADA VS. GALADIMA (2018) 3 NWLR (PT. 1607) 436; OGEDENGBE VS. BALOGUN (2007) 9 NWLR (PT. 1039) 380; EZEOKONKWO VS. OKEKE (2002) 1 NWLR (PT. 777) 1 AND AKEREDOLU VS. AKINREMI (1989) 3 NWLR (PT. 108) 64. PER OJO, J.C.A.

WAYS OF PROVING TITLE OF OWNERSHIP TO LAND

It is trite that a party seeking declaration of title to land may prove title by any of the following methods:
1) By traditional evidence.
2) By production of document of title.
3) By acts of ownership over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner of the land.
4) Long possession.
5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would be the true owner of the land.
A claimant need not plead and prove all the above five methods. Proof by any one of the methods would suffice. Where he pleads and/or relies on more than one method to prove his title he does so ex abundance cautela as proof by only one method is sufficient to sustain his claim. See ZIREGBE VS. EYEKPIMI (2020) 9 NWLR (PT. 1729) 327;IFEDIORA VS. OKAFOR (2019) 16 NWLR (PT. 1698) 322; ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (PT. 424) 252 IDUNDUN & ORS. VS. OKUMAGBA (1976) 10 SC 277. PER OJO, J.C.A.

WHETHER OR NOT THE MERE PRODUCTION OF A DEED OF CONVEYANCE OR DOCUMENT OF TITLE AUTOMATICALLY ENTITLES A PARTY TO THE DECLARATION OF TITLE SOUGHT

The law is that mere production of a deed of conveyance or document of title does not automatically entitle a party to the declaration of title sought. Before the production of document of title is admitted as sufficient proof of ownership, the Court must satisfy itself of the following:
(a) The document is genuine or valid.
(b) It has been duly executed, stamped and registered.
(c) The grantor has the authority and capacity to make the grant.
(d) That the grantor has in fact what he proposes to grant.
(e) That the grant has the effect claimed by the holder of the instrument.
See AYORINDE VS. KUFORIJI (2007) 4 NWLR (PT. 1024) 341; DOSUNMU VS. DADA (2002) 13 NWLR (PT. 783) 1; AGBOOLA VS. UNITED BANK FOR AFRICA PLC (2011) 11 NWLR (PT. 1258) 375 AND JOLASUN VS. BAMGBOYE (2010) 18 NWLR (PT. 1225) 283. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): By an Amended Writ of Summons dated and filed on 11th of March, 2013 and at paragraph 18 of the Amended Statement of Claim filed along with the said Writ, the Respondents as Claimants claimed as follows:
“18. WHEREFORE the Claimant claims jointly and severally against the Defendants as follows:
(a) A DECLARATION that the Claimants are the bona fide owners of the parcel of land lying, being and situate at Mile 271/2, Old Lagos-Ibadan Road (now Sagamu Ikorodu Road), Oko-Oba, Ogijo in the Sagamu in Ogun State of Nigeria covered by an indenture dated the 29th day of December 1966 and registered as No. 49 at Page 49 in Volume 948 in the register of deeds now kept at the Lands Registry Office at Abeokuta.
(b) AN ORDER directing the Defendants to surrender possession of the said parcel of land whereon they are in occupation to the Claimant forthwith.
(c) AN ORDER declaring the Defendants as trespassers on the said parcel of land from 1st January, 2004.
(d) AN ORDER of perpetual injunction restraining the Defendants whether by themselves, agents or privies from committing further acts of trespass on the said parcel of land.
(e) The sum of N100,000.00 (One Hundred Thousand Naira) only per annum payable by each occupant of the Claimant’s said land from 1st January 2004 until possession is fully yielded to the Claimants.

Upon being served with the originating processes, the Appellants who were the Defendants filed their Statement of defence in which they incorporated a counter-claim. The case went on to trial. In a considered judgment delivered on the 26th of June, 2015, the learned trial Judge at pages 423 to 424 of the record held as follows:
1. It is hereby declared, the Claimants are the bona fide owners of the parcel of land lying, being and situate at Mile 271/2, Old Lagos-Ibadan Road (Now Sagamu-Ikorodu Road), Oko-Oba, Ogijo, in the Sagamu Judicial Division of Ogun State of Nigeria covered by an indenture dated the 29th day of December, 1966 and registered as No. 49 at Page 49 in Volume 948 in the Register of Deeds now kept at the Lands Registry Office at Abeokuta.
2. The Defendants are hereby ordered to surrender possession of the said parcel of land situate at Mile 271/2, Old Lagos-Ibadan Road (Now Sagamu-Ikorodu Road), Oko-Oba, Ogijo, in the Sagamu Judicial Division of Ogun State of Nigeria covered by an indenture dated the 29th day of December 1966 and registered as No. 49 at Page 49 in Volume 948 in the Register of Deeds now kept at the Lands Registry Office at Abeokuta whereupon they are in occupation to the Claimant forthwith.
3. It is hereby declared that the Defendants are trespassers on the said parcel of land from 1st January, 2014.
4. The Defendants are hereby perpetually restrained whether by themselves, agents or privies from committing further acts of trespass on the said parcel of land.
5. The sum of N50,000.00 (Fifty Thousand Naira) only per annum payable by each occupant of the Claimant’s said land from 1st January 2004 until possession is fully yielded to the Claimant.

The Appellants who are dissatisfied with the judgment filed the instant appeal. The Original Notice of Appeal filed on the 13th of July 2015 was subsequently amended. The Amended Notice of Appeal filed on 4th of March 2019 was deemed as properly filed and served on the 26th of March, 2019. The Record of Appeal transmitted to this Court on 15th March 2016 was deemed as properly compiled and transmitted on 23/1/19.

In line with the Rules and Practice of this Court, parties filed their respective Briefs of Argument as follows:
1) Appellants’ Brief of Argument settled by O.P. Ayeni Esq. was filed on 4th of March 2019.
2) 1st Respondent’s brief of Argument settled by Adeola Sodipe of Counsel filed on 21st of August 2019 was deemed as properly filed and served on 24th of June, 2020.
3) 2nd and 3rd Respondents’ Brief of Argument settled by W.A. Onawole Esq. filed on 19th of August, 2020 was deemed as properly filed on 18th of November, 2020.
4) Appellants’ Reply to 1st Respondent’s Brief of Argument settled by N.O. Olagunju, Esq filed on 6th of August, 2020 was deemed as properly filed on 18th of November, 2020.
5) Appellants’ Reply to 2nd and 3rd Respondents’ brief of Argument settled by N.O. Olagunju Esq. filed on 9th of October, 2020 was deemed as duly filed on 18th of November, 2020.

On the 15th of October, 2021 when this appeal was argued, learned counsel on both sides adopted and relied on their respective briefs of argument as their oral arguments in urging us to allow and/or dismiss the appeal. Learned counsel to the 2nd and 3rd Respondents was absent at the hearing. Upon being satisfied that he was duly notified of the hearing, his brief of argument was deemed as argued pursuant to the provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules 2016.

Learned counsel to the Appellant formulated the following issues as the issues for determination in this appeal:
(i) Whether or not from the facts and circumstances of this appeal, the lower Court has jurisdiction to hear and determine the matter before it same having been caught up by Statute of Limitation and therefore statute barred (Ground 4 of the Notice of Appeal).
(ii) Whether or not the title document Exhibit ‘A’ relied upon by the Respondent can confer the title to the land the subject matter of this appeal on the Respondents (Grounds 2 and 3 of the Notice of Appeal).
(iii) Whether or not the failure of the 1st Respondent to call evidence of those it aver were in possession on its behalf was not fatal to its case (Grounds 5 and 7 of the Notice of Appeal).
(iv) Whether or not the land of the Appellants is the same as that of the 1st Respondent (Ground 1 of the Notice of Appeal).
(v) Whether or not the failure of the 1st Respondent to join issues with the Appellant in respect of the Amended Statement of Defence and Counter-Claim of the Appellant contained on pages 187 to 192 of the Record of Appeal does not amount to admission of the facts as contained in the said Amended Statement of Defence and Counter-Claim (Ground 6 of the Notice of Appeal).

Learned Counsel to the 1st Respondent distilled the following issues for determination:
1) Whether there is any confusion about the identity of the subject matter.
2) Whether the Claimant’s registered title (Exhibit A) was defeasible by Exhibits B-B4 and Exhibit F.
3) Whether the Claimant’s action was statute-barred.

For his part counsel to the 2nd and 3rd Respondents formulated a sole issue to wit:
“Whether the title document, exhibit if relied upon by the 2nd and 3rd Respondents can confer title to the land the subject matter of this appeal on the 1st Respondent.”

Upon a careful examination of all the issues formulated on behalf of the parties, I am of the considered view that the following two issues would suffice:
1) Whether or not from the facts and circumstances of this case, the suit before the lower Court was caught by the statute of limitation and therefore statute-barred.
2) Whether having regard to the pleadings and evidence led by parties, the lower Court was right when it granted the claims of the 1st Respondent.

The 1st Respondent incorporated a preliminary objection in its Brief of Argument which was also argued therein. The law is settled that a party who seeks to rely on a preliminary objection raised by him must seek the leave of Court to move it before the hearing of the substantive appeal. Where either the party or his counsel fails to seek such leave, the preliminary objection is deemed abandoned. See CAREW VS. OGUNTOKUN (2011) 5 NWLR (PT. 1240) 376; ATTORNEY-GENERAL RIVERS STATE VS. UDE (2006) 17 NWLR (PT. 1008) 436 AND OFORKIRE VS. MADUIKE (2003) 5 NWLR (PT. 812) 166.

At the hearing of this appeal, learned counsel to the 1st Respondent who was present in Court failed to seek the requisite leave of Court to move his objection. The objection filed on behalf of the 1st Respondent and argued in the Brief of Argument is deemed abandoned and I so hold.

The Appellants filed two reply briefs. They filed a Reply Brief to the 1st Respondent’s Brief of Argument and another one to the 2nd and 3rd Respondents’ Brief of Argument. I have gone through the two processes and I find them to be a rehash of submissions already made in the Appellants’ Brief of Argument. This is not the purpose of a reply brief. The purpose of a reply brief is to afford the Appellant an opportunity to address new issues raised in the Respondents’ Brief which were not dealt with in his main brief. It is not an opportunity for the Appellants to have a second bite at the cherry. See ABDULKADIR VS. MOHAMMED (2019) 12 NWLR (PT. 1687) 450; KOLO VS. LAWAN (2018) 13 NWLR (PT. 1637)495; MAINSTREET BANK LIMITED VS. BINNA (2016) 12 NWLR (PT. 1526) 316 AND HARKA AIR SERVICES NIGERIA LIMITED VS. KEAZOR (2011) 13 NWLR (PT. 1264) 320.
The arguments contained in the two reply Briefs are not responses to new issues raised by the Respondents. They are an attempt to improve on the arguments in the Appellants’ Brief of Argument. That is not the purpose of a Reply Brief.
I shall therefore discountenance all the arguments in the two Reply Briefs filed on behalf of the Appellants.

ISSUE NO.1
“Whether or not from the facts and circumstances of this case, the suit before the lower Court was caught by the Statute of Limitation and therefore statute-barred.”
It is the case of the Appellants that they have been in undisturbed possession of the disputed land for well over fifty years before the action at the lower Court was instituted. They contend that the cause of action arose when the progenitor of the 9th to 12th Appellants came to the land up until when the 1st to 8th Appellants came to occupy it. Learned Counsel to the Appellants argued that the right of action of the Respondents accrued in 1976 and relied on the provisions of Section 6(2) and 17 of the Limitation Law, Laws of Ogun State to submit that the action the subject of this appeal is statute-barred. He cited the cases of JFS INV. LTD VS. BRAWAL LINE LTD (2010) 18 NWLR (PT. 1225) 495; EGBE VS. ALAAJI (1991) 1 NWLR (PT. 123)546; MUAZZAM VS. BICHI (2010) 12 NWLR (PT. 1209) 508 AND OLAGUNJU VS. PHCN (2011) 10 NWLR (PT. 1254) 11 in support of his submissions and urged us to dismiss the case of the 1st Respondent for being statute-barred.

In response, learned Counsel to the 1st Respondent referred us to the findings of the learned trial Judge on the evidence of the 1st to 8th Appellants on how they came into possession and also referred us to contradictions in the evidence of their witnesses. He submitted that the argument in the Appellants’ Brief of Argument is a deliberate misapprehension of the facts on record and an attempt to mislead the Court and urged us to so hold. He further submitted that the documents relevant for the determination of when a cause of action arose are the Writ of Summons and Statement of Claim and not submissions made by Counsel. He urged us to resolve this issue against the Appellants.
The 2nd and 3rd Respondents did not react to this issue.

It is trite that Limitation Law either bars the remedy without extinguishing the right or bars the remedy and at the same time extinguishes the right. Whatever effect it has depends on the particular statute. A Limitation Law forecloses the right of a litigant to enforce a cause of action which he had but for the stipulated time for bringing the action which had become extinguished by effluxion of time.

The purport of Limitation Laws is to obviate the inconvenience and embarrassment to defendants whose witnesses may no longer be available and whose documents needed for their defence may have been out of circulation and in some cases already destroyed. See AJAYI VS. ADEBIYI (2012) 11 NWLR (PT. 1310) 137; CHIGBU VS. TONIMAS NIGERIA LIMITED (2006) 9 NWLR (PT. 984) 189; EGBE VS. ADEFARASIN (N0. 2) (1987) 1 NWLR (PT. 47)1.

The relevant law here is the Limitation Law, Laws of Ogun State, 2006. Section 17(2) thereof provides as follows:
“(2) The following provisions shall apply to an action by a person to recover land-
Subject to paragraph (b) of this Subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.”
By the provision of Section 17(2) (supra) any action for recovery of land must be brought within twelve years from the date the right of action accrued to the Plaintiff.

What then is a Cause of action? Cause of Action is defined by Black’s Law Dictionary, 9th Edition as a group of operative facts giving rise to one or more bases for suing. A Cause of Action is a situation or state of facts that entitles a party to maintain an action in Court. A Cause of Action is the entire set of facts or circumstances giving rise to an enforceable claim. See OKO VS. ATTORNEY-GENERAL OF EBONYI STATE (2021) 14 NWLR (PT. 1795) 63; NWORA VS. NWABUEZE (2019) 7 NWLR (PT. 1670) 1; ATTORNEY-GENERAL, LAGOS STATE VS. EKO HOTELS LIMITED (2006) 18 NWLR (PT. 1011) 378; DANTATA VS. MOHAMMED (2000) 7 NWLR (PT. 664)176.

A right of action is the right to proceed to seek the relief in respect of the Cause of Action. It is the right to enforce the cause of action or the right of judicial relief in the Claimant. See HASSAN VS. ALIYU (2010) 17 NWLR (PT. 1223) 547 AND ADEKOYA VS. FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT. 1099) 539.

The settled position of the law is that time begins to run where there is in existence a person who can sue and another who may be sued and also when all the facts which are material to be proved to entitle the Plaintiff to succeed have happened.

A Cause of Action is determined by reference to the Plaintiffs originating processes (Writ of Summons, Statement of Claim, Originating Summons and Affidavit in Support thereof (etc). The materials to be considered by the Court in the determination of when the cause of action arose in any given case are the contents of the Originating processes. The Court will then compare the date the Cause of Action arose with the date on which the Writ of Summons was filed to determine whether or not the action is statute barred. See EGBE VS. ADEFARASIN (NO.2) 1987 1 NWLR (PT. 47) 1; HON. GOODLUCK NANA OPIA VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR. (2014) LPELR–22185 (SC) YARE VS. NATIONAL SALARIES, WAGES AND INCOME COMMISSION (2013) 12 NWLR (Pt. 1367) 173, ABUBAKAR VS. BEBEJI OIL & ALLIED PRODUCTS LTD. & ORS (2007) 18 NWLR (Pt. 106) P. 319 AND OGUNDIPE VS. NDIC (2009) 1 NWLR (Pt. 1123) P. 473.

The question now is when did the cause of action in the case at the lower Court arise? The Amended Statement of Claim is at pages 141 to 145 of the Record. The relevant paragraphs are reproduced hereunder.
“5. The Claimant states that by an agreement with its immediate predecessor-in-title in the year 1966 it agreed for valuable consideration to purchase and did purchase the said parcel of land whereupon they were led into possession of same.
6. The Claimant immediately took possession of the parcel of land by clearing the virgin land after which it commissioned a land surveyor, who drew a plan clearly demarcating and delineating the extent of the Claimant’s land.
7. Subsequent to this, the Claimant’s predecessor-in-title vested the legal estate in the said parcel of land in the Claimant by executing in its favour an indenture dated 20th day of December, 1966 prepared by G.O.K Ajayi (now (SAN) registered as No. 49 in Volume 948 of the Register of Deeds then kept at the Lands Registry in Ibadan but now kept at the Lands Registry at Abeokuta in Ogun State. A certified true copy of the said Deed of Conveyance is hereby pleaded. The Registrar of Titles at Abeokuta shall at the trial be subpoenaed to produce the said title in Court and tender a certified true copy of same.
8. The Claimant since the purchase agreement which led to the execution of the indenture dated 29th December 1966 took physical and active possession of its parcel of land and apart from clearing and surveying same organised annual retreats for its trustees and elders thereon and put tenants on other portions to carry on farming and other commercial activities for about four decades.
9. The Claimant states that sometime about 2003 it discovered that its parcel of land, subject-matter of this suit had been encroached and trespassed upon, its tenants chased away therefrom, and its structures thereon demolished by the Defendants herein acting in connivance with and the active support of some touts and land speculators who alleged that they had obtained judgment from the Sagamu High Court in respect of the Claimant’s land.”

It is apparent from the above averments particularly at paragraph 9 thereof that the 1st Respondent discovered the 1st–8th Appellants encroached and trespassed on the disputed land sometime in the year 2003. To my mind it was at this point that there existed a person who can sue and another who can be sued. There also existed facts upon which the Claimant (1st Respondent) could bring an action. Time therefore began to run for the purpose of applying the Limitation Law in the year 2003 and I so hold.

The Writ of Summons is at pages 1 to 2 of the Record. It is clearly endorsed thereon that the Writ of Summons was issued on the 27th of July 2012. I have compared the date the cause of action arose that is 2003 with the date the Writ of Summons was issued that is 27th of July, 2012 and it is clear beyond any peradventure that the action was filed within the time allowed by law and not statute barred. It was filed about nine years after the cause of action arose and therefore not statute-barred.

It follows that the lower Court rightly exercised its jurisdiction to hear and determine the action filed before it by the 1st Respondent. This issue is resolved in favour of the Respondents and against the Appellants.

ISSUE NO. 2
Whether having regard to the pleadings and evidence led by parties the lower Court was right when it granted the claims of the 1st Respondent.
Issues 2, 3, 4 and 5 formulated by the Appellants are covered by this issue. The 1st Respondent’s issues 2 and 3 as well as the 3rd Respondent’s issue Nos. 1 can be addressed under this issue.

Learned counsel to the Appellants submitted that the Appellants proved their title to the disputed land by uncontradicted traditional history and undisturbed possession. He relied on the judgment of the Ogun State High Court in SUIT NOS. HCS/38/87 which conferred title to the disputed land on the 9th to 12th Appellants. He submitted further that the document of title, Exhibit A relied on by the 1st Respondent does not automatically confer title on her. He relied on the cases of IDUNDUN VS. OKUMAGBA (1976 9–10 SC, 227, PIARO VS. TENALO (1976) 12 SC 31, NWADIKE VS. IBEKWE (1987) 4 NWLR (Pt. 67) 318 to argue that though production of valid instrument of grant may be used to prove title, mere production of such document does not confer automatic title on the Claimant. He listed four conditions to be met for a title document to avail a Claimant. He craved in aid of his submission the case of ROMAINE VS. ROMAINE (1992) 4 NWLR (Pt. 238) Pg. 650 at 652 and submitted that the Respondents did not meet the required conditions. He contended further that the 1st Respondent’s predecessors in title did not have the requisite capacity and authority to make a grant of the disputed land as they purported to do vide Exhibit A. He submitted further that there are sufficient grounds for this Court to interfere with the evaluation of evidence done by the lower Court. He argued that while the 1st Respondent failed to lead evidence in support of its assertion that it put people on the disputed land, the Appellants led credible evidence to support their occupation of the land. It is his further contention that the 1st Respondent failed to prove the identity of the land claimed. This he submitted constitutes sufficient ground for her claim to fail. He relied on the case of OKONKWO VS. OKONKWO (2010) 14 NWLR (Pt. 1213) Pg. 228 and NWOKIDU VS. OKANU (2010) 3 NWLR (Pt. 1181) Page 362 in support of his submission.

It is further the argument of Appellants’ counsel that failure of the 1st Respondent to file a response to the Amended Statement of Defence and counter-claim of the Appellants filed on 11th of July 2013 is tantamount to admission of the Appellants’ counter–claim and defence. He finally urged us to allow this appeal and set aside the judgment of the lower Court as well as the reliefs endorsed on the Appellants’ counter-claim and those on the Notice of Appeal.

For his part learned counsel to the 1st Respondent submitted the Appellants who did not deny the identity of the land described on the plan attached to Exhibit A had a duty to prove the identity of the land they dispute. This he said they failed to do and submitted that Exhibits B–B4 and F relied on by them did not have any survey plan attached. He urged us to dismiss the appeal.

Learned counsel to the 2nd and 3rd Respondents for his part submitted that the document relied upon by the 1st Respondent is registered, genuine and duly executed and urged us to hold the 1st Respondent was entitled to the declaration of title granted by the lower Court. He further submitted that the Exhibits B–B4 and F relied on by the Appellants are not documents of title within the meaning of Section 16 of the Land Instrument Registration Law, Laws of Ogun State, 2006. He urged us to dismiss the appeal.

Upon a careful consideration of all submissions made by counsel on all sides, the germane question to be answered is whether the learned trial Judge came to a correct decision when he granted the reliefs sought by the 1st Respondent.

The 1st Respondent who was the claimant at the lower Court sought amongst others, a declaration that it is the bonafide owner of the parcel of land situate at mille 27½ old Lagos–Ibadan Road (now Sagamu–Ikorodu Road, Oko–Oba, Ogijo, Ogun State).

It is trite that in a claim for declaration of title to land a claimant has the onerous task of establishing his title on the strength of his own case and not the weakness of the defence. See ARIJE VS. ARIJE (2018) 16 NWLR (PT. 1644) 67; EZEIGWE VS. AWUDU (2008) 11 NWLR (PT. 1097)158 AND GENERAL COTTON MILL LIMITED VS. TRAVELLERS PALACE HOTEL (2019) 6 NWLR (PT. 1669) 507. One of the exceptions to this general rule is where the defendant has filed a counter-claim.

The law is that a counter-claim is a cross action and not just a defence to the claimant’s claim. It is an independent action separate from the original one. The two actions though independent of each other are tried together for convenience. See UMAR VS. GEIDAM (2019) 1 NWLR (PT. 1652) PAGE 29; OKORO VS. OKORO (2018) 16 NWLR (PT. 1646) 506 AND ATIBA IYALAMU SAVINGS & LOANS LTD. VS. SUBERU (2018) 13 NWLR (PT. 1637) 387.

In the instant appeal, the Appellants who were defendants at the lower Court incorporated a counter-claim in their defence wherein they also sought declaratory reliefs amongst others. They therefore also had a duty to establish they are entitled to the declaration they seek in the same manner as the 1st Respondent who was the claimant in the original action.

The law is settled that a party seeking a declaration of title to land must plead and prove his entitlement to the land claimed. He must plead and prove how he became the owner of the land, the identity and the size of the land. He must establish by credible evidence that he is entitled to the reliefs claimed. See PADA VS. GALADIMA (2018) 3 NWLR (PT. 1607) 436; OGEDENGBE VS. BALOGUN (2007) 9 NWLR (PT. 1039) 380; EZEOKONKWO VS. OKEKE (2002) 1 NWLR (PT. 777) 1 AND AKEREDOLU VS. AKINREMI (1989) 3 NWLR (PT. 108) 64.

The instant Appellants and the 1st Respondent therefore had a duty to prove the identity of the land on which they seek declaration of title. It is on record that the parties referred to the disputed land by different names. While the 1st Respondent referred to it as being the land situate at mile 271/2 old Lagos–Ibadan Road (now Sagamu–Ikorodu Road, Oko Oba, Ogijo, Ogun State) the Appellant referred to it as land situate at Mebishere Village. In a bid to prove the identity of the land claimed, the 1st Respondent tendered an indenture which was admitted in evidence as Exhibit A. Attached to Exhibit A is a survey plan. The Appellants tendered a photocopy of a survey plan which was admitted in evidence as Exhibit E.

In AYUYA VS. YONRIN (2011) 10 NWLR (PT. 1234) 135 AT 166, PARAGRAPHS E–H, ONNOGHEN JSC held as follows:
“It is common occurrence in land matters for parties to refer to the same piece of land by different names and also to indicate in their respective plans different features but the bottom line remains, the fact that the parties know the land in dispute otherwise there would be no dispute at all; what is usually in dispute is the ownership of the particular land being claimed by the Plaintiff.
It follows therefore that where a plaintiff claims ownership of a piece or parcel of land against his neighbour and describes the boundaries of the said land in a survey plan which is tendered and admitted in evidence, that survey plan clearly refer to the particular piece or parcel of land in dispute and it cannot be said that the identity and extent of the said land is unknown.
What the Plaintiff/Claimant now needs to do is to prove/establish his title to the said disputed land by one of the five ways/methods of proving ownership or declaration of title to land and to also testify as to the features etc on the land in issue.”
In this appeal, parties dispute ownership of a particular parcel of land which they described by different names. From the totality of the evidence on record, they are fully aware of the identity of the disputed land otherwise there would not have been any dispute at all. DW2 (one of the witnesses for the Appellants) in answer to questions put to him under cross examination admitted at page 367 of the Record that the 1st to 8th Appellants occupy land in Ikorodu/Sagamu Road which land the 1st Respondent now claims. The identity of the disputed land is thus not in doubt. The land referred to by the parties is the same even though referred to by different names. What is now left is whether the parties established their title to the disputed land.

It is trite that a party seeking declaration of title to land may prove title by any of the following methods:
1) By traditional evidence.
2) By production of document of title.
3) By acts of ownership over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner of the land.
4) Long possession.
5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would be the true owner of the land.
A claimant need not plead and prove all the above five methods. Proof by any one of the methods would suffice. Where he pleads and/or relies on more than one method to prove his title he does so ex abundance cautela as proof by only one method is sufficient to sustain his claim. See ZIREGBE VS. EYEKPIMI (2020) 9 NWLR (PT. 1729) 327; IFEDIORA VS. OKAFOR (2019) 16 NWLR (PT. 1698) 322; ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (PT. 424) 252 IDUNDUN & ORS. VS. OKUMAGBA (1976) 10 SC 277.

The lower Court in its judgment found that the 1st Respondent relied on Exhibit A and the evidence of CW1 to prove its title. A certified true copy of Exhibit A is at pages 429 to 434 of the Record. Exhibit A is evidence of purchase of the land by the 1st Respondent from one Oba Oyebola Suberu, the then Lemo of Ogijo, Yesufu Sowemimo, Oyebanjo Sowemimo, Tiyamiyu Odunta, Dawuda Banjo Ayanlaja and Sadiku Oyenuga who are the accredited representatives of Olugua family, Magbo family, Abafon family, Polo family and Mebishere family respectively. Exhibit A also reveals that the 1st Respondent paid the sum of Three Hundred Pounds Sterling as consideration.

The law is that mere production of a deed of conveyance or document of title does not automatically entitle a party to the declaration of title sought. Before the production of document of title is admitted as sufficient proof of ownership, the Court must satisfy itself of the following:
(a) The document is genuine or valid.
(b) It has been duly executed, stamped and registered.
(c) The grantor has the authority and capacity to make the grant.
(d) That the grantor has in fact what he proposes to grant.
(e) That the grant has the effect claimed by the holder of the instrument.
See AYORINDE VS. KUFORIJI (2007) 4 NWLR (PT. 1024) 341; DOSUNMU VS. DADA (2002) 13 NWLR (PT. 783) 1; AGBOOLA VS. UNITED BANK FOR AFRICA PLC (2011) 11 NWLR (PT. 1258) 375 AND JOLASUN VS. BAMGBOYE (2010) 18 NWLR (PT. 1225) 283.

CW1 is one Moraino Bolanle Ademoye. She was the Chief Deeds Registrar at the Bureau of Lands and Survey, Ogun State. Exhibit A which is a Certified True Copy of a Deed of Conveyance dated 29th of December, 1966 was tendered and admitted in evidence through her. She confirmed Exhibit A was registered in the Register of Deeds kept at the Lands Registry in Ibadan as No. 49 at page 49 volume 948 of the Register of Deeds. It is therefore established that Exhibit A was duly executed, stamped and registered and thus genuine and valid.

It is evident on Exhibit A that one Sadiku Oyenuga signed as an accredited representative of the 9th to 12th Appellants’ family. From the pleadings on record, parties did not join issues on this fact. The settled position of the law is that facts which are neither challenged nor disputed must be taken as admitted and duly established. See SHESHE VS. IBRAHIM (2021) 2 NWLR (PT. 1760) 187; OLOFU VS. ITODO (2010) 18 NWLR (PT. 1225) 545; OMOREGBE VS. LAWANI (1980) 3–4 SC 108 AT 177; FASORO VS. BEYIOKU & ORS (1988) 2 NWLR (PT. 76) 263 AT 271; MOGAJI VS. CADBURY (NIG.) LTD. (1972) 2 SC 97 AND OKOYE VS. EJIOFOR (1934) 2 WACA 130.

It follows therefore that there is no dispute that Sadiku Oyenuga who acted for the family of the 9th–12th Appellants had the authority and capacity to make a grant of the portion of land alienated by the 9th to 12th Appellants. The portion of land granted by the 9th to 12th Appellants is part of the land covered by Exhibit A. Exhibit A is thus a document of title transferring title in the large parcel of land more particularly described in the Survey Plan attached to it from the named families to the 1st Respondent.

To establish their title to the disputed land, the Appellants for their part relied on Exhibits F and G. Exhibit F is the judgment of the Ogun State High Court in SUIT NO: HCS/38/87 between S. OLUGUNO & 4 ORS VS. AMODU LAWANI & ANOR delivered on 30th June 1999.

Exhibit G is another judgment of the Ogun State High Court in SUIT NO. HCS/27/2004 between PRINCE ALBERT AWOFISAYO AND CHIEF SUNDAY LAWAL & 4 ORS delivered on 12th November 2007.

Exhibit F confirms that the family of the 9th to 12th Appellants is a land owning family in Mebisere Village. Exhibit G is to the effect that part of the family land of the 9th to 12th Appellants and portions of land belonging to Oluguno family situate at Ikorodu/Sagamu Road, Ogijo via Sagamu have been sold to one Prince Albert Awofisayo. Exhibits F and G do not vest title to the disputed land in the Appellants and I so hold.

The Appellants further relied on Exhibits B–B4 to establish their title to the disputed land. I have seen Exhibits B–B4. There is no evidence of registration on them. CW1 who was a Chief Deeds Registrar testified under the sanctity of oath that no other document apart from Exhibit A was registered as a title document in respect of the disputed land.

Section 16 of the Land Instruments Law, Ogun State provides that no instrument shall be pleaded or given in evidence in any Court as affecting any land unless same has been registered. Exhibit B–B4 which were not registered are not admissible as land instrument and cannot be used to prove that the 9th to 12th Appellants transferred any interest on the disputed land to the 1st to 8th Appellants.

The Appellants further relied on evidence of traditional history to prove their title. The 1st to 8th Appellants claim their title through the family of the 9th to 12th Appellants. It is the case of the 1st Respondent that part of the land conveyed to it vide Exhibit A was from the family of the 9th to 12th Appellants. Both parties traced their root of title to the family of the 9th to 12th Appellants.

The law is that where both parties claim and succeed in tracing their title in respect of the same piece of land to the same grantor, the later in time of the two or more persons cannot maintain an action against the person who first obtained the grant. This is because the grantor having divested himself of his title on the land has nothing left to convey to the subsequent purchaser. He can only convey what he has. The principle is NEMO DAT QUOD NON HABET. See ADELAJA VS. FANOIKI (1990) 2 NWLR (PT. 131) 137; IBRAHIM VS. OSUNDE (2009) 6 NWLR (PT. 1137) 382; OLOHUNDE VS. ADEYOJU (2000) 10 NWLR (PT. 676) 562; BOULD VS. ODUNSI (1959) SCNLR 591; COKER VS. ANIMASHAUN (1960) LLR 71; ADAMO AKJU, CHIEF OBANIKORO VS. CHIEF SUENU, ALIMI KUTI & KUTI & CHIEF OLUWA (1925) 5 NLR 87.

Exhibit A which is evidence that the 9th to 12th Appellants’ family sold part of their family land to the 1st Respondent is dated 29th December, 1966. Exhibits B–B4 relied on by the Appellants were issued at various times in the years 2001, 2002, 1993, 1997, 1998 and 1999. They were issued to the 1st–8th Appellants for themselves and others represented by them. It is clear they were issued at a time later than Exhibit A which conveyed the same land to the 1st Respondent.

Undoubtedly, the 9th–12th Appellants and their family had nothing to transfer to the 1st to 8th Appellants and their representatives as at the time they did vide Exhibits B-B4. Their forbearers divested themselves of the land in 1966 when they issued Exhibit A to the 1st Respondent. The Appellants further contend that failure of the 1st Respondent to call persons put on the land by them as tenants was fatal to their case. I do not think so. The method of proof of title relied on by the 1st Respondent is proof vide document of title. The law is that proof of title vide any of the five methods would suffice. The 1st Respondent who established his title by document of title is no longer required to establish acts of ownership. He does not need to call any of its tenants as witnesses as submitted by the Appellants. Failure to call his tenants as witnesses in the present circumstance is not fatal and I so hold.

It is further the contention of the Appellants that failure of the 1st Respondent to join issues with them in respect of their Amended Statement of Defence and Counter-claim filed on 11th of July 2013 is fatal.

The 1st Respondent filed a reply to Statement of Defence and Defence to Counter-claim on 2nd of April 2013 (see pages 171 to 174 of the record). This Reply was filed in response to the Amended Statement of Defence and Counter-claim filed on 22nd of March 2013 (see pages 163 to 170 of the record). The Appellants with the Leave of Court amended their Statement of Defence and Counter-claim. The 1st Respondent did not file a consequential amended reply to Statement of Defence and Defence to Counter-claim. This is the crux of the complaint of the Appellants.

It is trite that an amended document takes effect from the date of the original document. Furthermore, when a party amends his pleadings, the other party may make consequential amendments if he so wishes. See ADEWUNMI VS. ATTORNEY GENERAL EKITI STATE (2002) 2 NWLR (PT. 751) 474; AKANINWO VS. NSIRIM (2008) 9 NWLR (PT. 1093) 439 AND OJOH VS. KAMALU (2005) 18 NWLR (PT. 958) 523.
The Amended Statement of Defence and Defence to Counter-claim dates back to the date of the original Statement of Defence and Defence to Counter-claim filed. The Reply to Statement of Defence and Defence to Counter-claim filed by the 1st Respondent is still valid. It is still the response to the Amended Statement of Defence and Defence to the Amended Counter-claim. See OGBONNA VS. ATTORNEY GENERAL IMO STATE (1992) 1 NWLR (PT. 220) 647; DABUP VS. KOLO (1993) 9 NWLR (PT. 317) 254; CENTRAL BANK OF NIGERIA VS. NIGERIA DEPOSIT INSURANCE CORPORATION (2016) 3 NWLR (PT. 1498)1; KWAJAFFA VS. BANK OF THE NORTH LIMITED (1998) 1 NWLR (PT. 387) 423.

It is also trite that failure of a Plaintiff to file a defence to a Counter-claim may not be disastrous if he succeeds in his claim.

The summary of all I have been saying under this issue is that the trial Court was right when it granted the claims of the 1st Respondent. The 1st Respondent by its pleadings and evidence adduced thereon on his behalf established his title to the disputed land by production of document of title duly authenticated. The Appellants were unable to discredit Exhibit A relied upon by the 1st Respondent. By Exhibit A, the family of the 9th to 12th Appellants was divested of their proprietary right as far back as 1966 and no longer had any interest to transfer to the 1st to 8th Appellants or the Families they represented as at the time they did. The evidence adduced on behalf of the 1st Respondent is cogent, credible and more probable when placed on the imaginary scale against that of the Appellants. This issue is accordingly resolved against the Appellants and in favour of the 1st Respondent.

Having resolved the two issues formulated for the determination of this appeal against the Appellants, it follows that this appeal is completely devoid of merit and it is accordingly dismissed. I affirm the judgment of the Ogun State High Court sitting in Sagamu Judicial Division in SUIT NOS: HCS/137/2012 delivered on 26th of June, 2015. The Appellants shall pay to the 1st Respondent N100,000 as costs.

JIMI OLUKAYODE BADA, J.C.A.: I had the preview of the lead judgment just delivered in this appeal by my learned brother, FOLASADE AYODEJI OJO, JCA. I agree with my Lord’s analysis and conclusion on the issues in the appeal.

Nevertheless, I will also emphasise that a Statute of limitation is a law that bar claims after a specified period. It is a Statute which establishes a time limit for suing in a civil case based on the date the claim accrued. The purpose of such a Statute is to require diligent prosecution of known claims thereby providing finality and predictability in legal affairs.
In Ajayi VS. Adebiyi (2012) 11 NWLR part 1310 page 137 it was held among others that:-
“The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore, a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had elapsed. An action which is not brought within the prescribed period offends the provisions of the law and not give rise to a cause of action.”

In this appeal under consideration, it was contended on behalf of the Appellant that the action which is the subject of this appeal is Statute barred. But a careful reading of paragraphs 5, 6, 7, 8, and 9 of the Amended Statement of Claim on pages 141 to 145 of the record of appeal would reveal that the 1st Respondent discovered that 1st to 8th Appellants encroached and trespassed on the disputed land sometimes in the year 2003.

The original Writ of Summons on pages 1 and 2 of the record of appeal showed that the Writ of Summons was issued on 27th of July, 2012.

By virtue of Section 17(2) of the Limitation Law, Laws of Ogun State 2006, no action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it.

In this case, since the cause of action arose in year 2003 when 1st Respondent discovered that 1st to 8th Appellants encroached and trespassed on the disputed land, and the original Writ of Summons was issued on 27th July 2012, it showed that the action was filed nine years after the cause of action arose. Therefore, it is my view that the action was filed within the time prescribed by law.

Consequent upon the foregoing and in view of the detailed reasons contained in the lead judgment, I am of the view that the appeal lacks merit, it is also dismissed by me.
I abide by the order on cost made in the said lead judgment.

ABDUL-AZEEZ WAZIRI, J.C.A.: The lead judgment of Folasade Ayodeji Ojo JCA, my learned brother, was supplied to me before now. Upon a careful perusal of same, I find myself in complete agreement with his reasoning and the conclusion he arrived at that the Notice of Preliminary Objection incorporated in the Respondents’ brief of Argument for which the Leave of this Hon. Court was not sought before the Argument of the main appeal was deemed jettisoned with. Also, the two issues donated for the resolution of the appeal had been adroitly dealt with. Consequently, I do not have anything useful to add. I too, join my Noble Lord, in dismissing the appeal and endorse the consequential orders made therein including order as to costs in favour of the 1st Respondent.