APRIL CO-ORDINATE LTD v. FREDRICK & ANOR
(2022)LCN/16247(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/IB/450/2014
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
APRIL CO-ORDINATE LIMITED APPELANT(S)
And
1. MR. AKINGUNOYE ADEDAYO FREDRICK 2. GATEWAY DEVELOPMENT COMPANY LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT COUNTER-CLAIM IS A SEPERATE AND INDEPENDENT ACTION
It is trite that a counter-claim is a separate and independent action. However, where an appeal arises from the decision in a composite judgment and it is indicated in the Notice of Appeal that it is against the whole decision, the appeal is against the two actions determined in it. See NKUMA VS. ODILI (2006) 6 NWLR (PT. 977) 587, CHIKERE VS. OKEGBE (2000) 12 NWLR (PT. 681) 274 AND IGWE VS. KALU (1993) 4 NWLR (PT. 285) 1.
I have gone through the judgment, the subject of this appeal. It is apparent that the learned trial judge averted his mind to the issues in the main claim as well as the counter-claim and made pronouncements on them. He delivered a composite judgment. This being so, it is not necessary for the Appellant to file two separate Notices of Appeal. A single Notice of Appeal indicating that the appeal is against the whole decision would suffice and I so hold. PER OJO, J.C.A.
THE POSITION OF LAW WHERE A LAND IN DISPUTE IS KNOWN TO BOTH PARTIES
The law is well settled that where the land in dispute is known to both parties, issues need not be joined on its identity. See ATANDA VS. ILIASU (2013) 6 NWLR (PT. 1351) 529, EKPEMUPOLO VS. EDREMODA (2009) 8 NWLR (PT. 1142) 166, EBEVUHE VS. UKPAKARA (1996) 7 NWLR (PT. 460) 254.
In AYUYA VS. YONRIN (2011) 10 NWLR (PT. 1254) 135 AT 166-167 PARAGRAPHS E-A, ONNOGHEN JSC held as follows:
“It is common occurrence in land matters for parties to refer to same piece or parcel 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 neighbor and describes the boundaries of the said land in a survey plan which is tendered and admitted in evidence, that survey plan clearly refers 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 to also testify as to the features etc on the land in issue.
Where the Court agrees with him then he wins and is awarded title to the land in issue irrespective of the contrary case presented by the defendant as to the mode of acquisition of the title, the identity and extent of the disputed land.” PER OJO, J.C.A.
THE DUTY OF A PARTY WHO SEEKS A DECLARATION OF TITLE TO LAND
It is trite that it is the duty of the party who seeks a declaration of title of land to prove his claim by credible evidence. The onus is on him to satisfy the Court that he is entitled to the declaration sought based on the evidence presented by him. He must rely on the strength of his own case and not on the weakness of the defendant’s case. See ONEMU VS. COMMISSIONER FOR AGRICULTURE AND NATURAL RESOURCES, ASABA (2019) 11 NWLR (PT. 1682) 1, NRUAMAH VS. EBUZOEME (2013) 13 NWLR (PT. 1372) 474, OHIAERI VS. AKABEZE (1992) 2 NWLR (PT. 221) 1.
It is further the law that where the defendant has counter-claimed, he equally has the onus of establishing his case just as he would if he were the original claimant. It is trite that a counter-claim is an independent action subject to the same rules of pleading and standard of proof as the main action. See AKINBADE VS. BABATUNDE (2018) 7 NWLR (PT. 1618), ATIBA IYALAMU SAVINGS AND LOANS LTD VS. SUBERU (2018) 13 NWLR (PT. 1637) 387, KOLADE VS. OGUNDOKUN (2017) 18 NWLR (PT. 1596) 152, NSE FIK VS. MUNA (2014) 2 NWLR (PT. 1390) 151.
METHODS OF PROVING TITLE OF OWNERSHIP TO LAND
It is the settled position of the law that there are five different methods of proving ownership of a disputed land. They are:
1. Proof by traditional evidence.
2. Proof by production of documents of title duly authenticated.
3. Proof by acts of ownership such as selling, leasing, making a grant, renting out all or any part of the land or farming thereon extending over a significant length of time numerous and positive enough to warrant the inference that the person exercising such proprietary acts are the true owners of the land.
4. Proof by acts of long possession and enjoyment of the land.
5. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the disputed land.
See ORIANZI VS. ATTORNEY GENERAL RIVERS STATE (2017) 6 NWLR (PT. 1561) 224, AIYEOLA VS. PEDRO (2014) 13 NWLR (PT. 1424) 409, NRUAMAH VS. EBUZOEME (2013) 13 NWLR (PT. 1372) 474, ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (PT. 424) 252 AND IDUNDUN & ORS VS. OKUMAGBA (1976) 99 AND 10 SC 227.
It is significant to note that a Claimant may choose to prove his title vide any one of the methods.
It is further the law that the mode of acquisition of title to land may be proved in any of the following ways:
1) By first settlement on the land and deforestation of the virgin land;
2) By conquest during tribal wars;
3) By gift;
4) By grant-customary;
5) By sale;
6) By inheritance etc. PER OJO, J.C.A.
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal emanated from the judgment of the Ogun State High Court Abeokuta Judicial Division in SUIT NO. M/57/2009 between MR. AKINGUNOYE ADEDAYO FREDRICK …. CLAIMANT AND (1) APRIL COORDINATE LTD and (2) GATEWAY CITY DEVELOPMENT COMPANY LTD … DEFENDANTS delivered on the 21st of February, 2014.
In that action, the 1st Respondent claimed against the Appellant as follows:
Whereof the Claimant claims as follows:
1. Declaration that Claimant is the person entitled to a statutory right of occupancy on a parcel of land measuring 3,888.119 Square Meters situate at Community Avenue, Magboro, Obafemi-Owode Local Government Area of Ogun State which is more particularly described and delineated in Survey Plan No. OG/1604/2008/008 dated 26th November, 2008 prepared by M.O Idowu a Registered Surveyor.
2. An order of this Court granting the Claimant immediate possession of the piece and parcel of land measuring 3,888.19 Square meters situate at Community Avenue, Magburo, Obafemi Owode Local Government Area of Ogun State which is more particularly described and delineated in Survey plan No. OG/1604/2008/008 dated 26th November, 2008 prepared by M. O. Idowu a Registered Surveyor.
3. A sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) against the Defendants as damages for use and occupation per annum from 2009 till the date of judgment in this suit and possession given to the Claimant.
The Appellant and 2nd Respondent who were the defendants at the lower Court filed their separate defences to the action. The Appellant as 1st Defendant incorporated a counter-claim into his statement of defence wherein he sought the following reliefs:
“1. A Declaration that the 1st Defendant is the owner of the land in dispute only and is entitled to the said parcel of land covering an area of 3065.399 Square metres situate and lie within Gateway City Estate Commercial Area, Ilupeju settlement of Block 1, Plot 8, Obafemi Owode Local-Government, Ogun State.
2. An order of perpetual injunction restraining the Claimant and whether by himself his agents, servants, privies, nominees or assigns or whoever is connected to the Claimant from anywise or manner from further claim or referring to the parcel of land as belonging to the Claimant.
3. General Damages in the sum of N500,000.00 (Five Hundred Thousand Naira only).
4. The cost of this action in the sum of N3,000,000.00 (Three Million Naira only).
A summary of the facts of the case at the lower Court is as follows:
The Claimant (instant 1st Respondent) claimed ownership of a parcel of land measuring 3,888.19 Square metres situate at Community Avenue, Magboro, Obafemi Owode Local-Government Area of Ogun State. He traced his root of title to the Akinwunmi Odeneye Family of Oke Afa Village, Magboro Obafemi Owode Local Government of Ogun State who were adjudged owners of the land in SUIT NOS. AB/257/2001 – BETWEEN CHIEF OLOWO ODENEYE AKINWUNMI & 4 ORS VS. JULIUS BERGER NIGERIA PLC & ANOR AND SUIT NO. AB/304/2008 BETWEEN CHIEF OLUWO ODENEYE AKINWUNMI & 5 ORS VS. SAKR POWER GENERATION NIGERIA LTD & ANOR respectively.
For the 1st Defendant (instant Appellant) his case is that the disputed land formed part of a larger parcel of land acquired by the Ogun State Government which land is managed by the Gate Way City Development Company Limited.
His claim is that the disputed land was allocated to him after he met all requirements for the allocation.
The case of the 2nd Defendant (2nd Respondent) is that the land in dispute forms part of a vast area of land acquired by the Ogun State Government in 1986 and which acquisition is contained in Ogun State of Nigeria Gazette No. 47 volume 11 of 20 November, 1986. That it allocated the disputed land to the 1st Defendant.
At the close of hearing the learned trial judge in a considered judgment contained at pages 571-586 of the Record held at pages 586 as follows:
“In the final analysis, I find on a preponderance of evidence and I hold that the counter-claim of the 1st Respondent fails in its entirety. Same is hereby dismissed”.
The claims of the Claimant succeed as follows:
1. It is hereby declared that the Claimant is the person entitled to a statutory right of occupancy on a parcel of land measuring 3,888.119 Square Metres situate at Community Avenue, Magboro, Obafemi-Owode Local Government Area of Ogun State which is more particularly described and delineated in survey plan No. OG/1604/2008/008 dated 26th November, 2008 prepared by M.O. Idowu, a Registered Surveyor.
2. An order of immediate possession of the piece and parcel of land measuring 3,888.119 Square metres situate at Community Avenue Magboro, Obafemi-Owode Local Government Area of Ogun State which is more particularly described and delineated in survey plan No. OG/1604/2008/008 dated 26 November, 2008 prepared by M.O. Idowu a registered Surveyor is hereby granted in favour of the Claimant.”
Aggrieved by the judgment, the Appellant filed the instant appeal. The Notice of Appeal containing four grounds of appeal was filed on the 23rd of May, 2014. The Record of Appeal compiled by the Appellants counsel transmitted to this Court on the 12th of September, 2014 was deemed properly transmitted on the 12th of June, 2018.
In compliance with the rules of this Court, parties filed and exchanged briefs of argument as follows:
1) Appellants brief of argument settled by A.A Ayodele, Esq., filed on 13th of September, 2018 was deemed properly filed on the 20th of September, 2018.
2) 1st Respondent’s brief settled by Kolawole Abiri, Esq., filed on 16th of January, 2019 was deemed properly filed on 24th of January, 2019.
3) Reply brief to 1st Respondent’s brief of Argument filed on 8th of March 2019 and was deemed properly filed on 10th of April 2019.
At the hearing of this appeal on the 7th of April, 2022, Adekunle Manuwa, Chief State Counsel, Ogun State M.O.J who appeared for the 2nd Respondent applied to withdraw a motion filed on behalf of the 2nd Respondent on the 2nd December, 2020 wherein he sought for an order extending the time within which the 2nd Respondent may file its brief of argument. The motion as well as the 2nd Respondent’s brief argument were struck out. Learned Counsel thereafter informed the Court that he did not wish to file any brief on behalf of the 2nd Respondent. Learned Counsel to the Appellant, A.A. Ayodele, Esq., adopted and relied on both the Appellants brief and the reply brief filed on his behalf and urged us to allow the appeal. Kolawole Abiri, Esq., adopted and relied on the 1st Respondent’s Brief of Argument in urging us to dismiss the appeal.
This appeal is predicated upon four grounds and from which learned Counsel to the Appellant formulated the following three (3) issues for determination:
1. Whether the evidence led both oral and documentary in this suit, the land in dispute as being claimed by each party is one and the same land.
2. Whether by rejecting and abandoning legally admissible evidence/document tendered by the Surveyor-General, a subpoenaed witness, the trial Court has not misdirected itself in reaching its conclusion.
3. Whether by the pleadings and evidence of the parties before the lower Court, it could be said that the 1st Respondent sufficiently proved his case as to be entitled to the reliefs granted him/whether the judgment of the lower Court is not against the weight of evidence before it.
For his part, learned Counsel to the 1st Respondent formulated the following four (4) issues for determination:
1. Whether learned trial Judge was right when he held that the identity of the land in dispute as shown in Exhibits 3 and 4, was sufficiently proved. (Grounds 1 and 2).
2. Whether the learned trial Judge was right when he held that the 1st Respondent sufficiently proved his case/root of title and therefore entitled to judgment. (Ground 3).
3. Whether there was any misdirection on the part of the learned trial Judge in respect of the evidence of Surveyor-General of Ogun State (DW4). (Ground 4).
The three issues formulated by both parties are very similar.
Learned Counsel to the 1st Respondent submitted that issue three raised in Appellant’s brief of argument is not competent because it does not arise from any ground of appeal. He relied on the case of EFCC VS. DADA (2016) 1 NWLR (PT. 1494) 567 AND IBIGBAMI VS. MIL. GOVERNOR, EKITI STATE (2004) 4 NWLR (PT. 863) 243.
I have taken a look at Appellant’s Issue No. 3. It is a combination of two issues. The principal one being whether by the pleadings and evidence of the parties before the lower Court, it could be said that the 1st Respondent sufficiently proved his case to be entitled to the reliefs granted him. The secondary issue is whether the judgment of the lower Court is not against the weight of evidence before it. Contrary to what is expected of him, the Appellant did not relate the issues formulated by him to the Grounds of Appeal. I shall however not penalize him for this in the interest of justice. The 1st Respondent formulated similar issues and married them to the grounds of appeal.
I will therefore adopt the issues formulated for the 1st Respondent in the determination of this appeal. The three issues are intertwined and a resolution of one will dovetail into the other. The three issues would therefore be considered together and determined in one fell swoop.
To start with, I note that learned Counsel to the 1st Respondent raised a preliminary point in the 1st Respondents’ brief of argument. He argued that the Appellant who did not raise any ground of appeal against any of the findings of the learned trial judge in his counter-claim cannot seek the prayer contained in paragraph 4(ii) of his Notice of Appeal. He reiterated the settled position of the law that any finding or order which is not appealed against is valid and subsisting and relied on the cases of OKOLI VS. MORECAB FINANCE (PT. 143) 499 AND KOYA VS. UBA (1997) 1 NWLR (PT. 481) 251 in support.
The Notice of Appeal is at pages 593 – 596 of the Record. The reliefs sought is at page 595 of the record and it reads thus.
“4. RELIEFS SOUGHT FROM THE COURT OF APPEAL
i) An order setting aside the judgment of the lower Court delivered on 21st day of February, 2014.
ii) Judgment in favour of the 1st Respondent/Appellant in favour of the 1st Defendant/Appellant as per its amended statement of Defence counter-claim filed in the 30th January, 2012.”
It is trite that a counter-claim is a separate and independent action. However, where an appeal arises from the decision in a composite judgment and it is indicated in the Notice of Appeal that it is against the whole decision, the appeal is against the two actions determined in it. See NKUMA VS. ODILI (2006) 6 NWLR (PT. 977) 587, CHIKERE VS. OKEGBE (2000) 12 NWLR (PT. 681) 274 AND IGWE VS. KALU (1993) 4 NWLR (PT. 285) 1.
I have gone through the judgment, the subject of this appeal. It is apparent that the learned trial judge averted his mind to the issues in the main claim as well as the counter-claim and made pronouncements on them. He delivered a composite judgment. This being so, it is not necessary for the Appellant to file two separate Notices of Appeal. A single Notice of Appeal indicating that the appeal is against the whole decision would suffice and I so hold.
The Appellant in the Notice of Appeal at page 594 of the record stated as follows:
“(2) PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:
“THE WHOLE DECISION OF THE JUDGMENT DELIVERED ON THE 21ST DAY OF FEBRUARY, 2014.”
The Appellant has appealed against the whole decision of the lower Court which includes that dismissing the counter-claim. I find the complaint of the 1st Respondent on the preliminary point unmeritorious and it is hereby dismissed.
ISSUES FOR DETERMINATION
1. Whether the learned trial judge was right when he held that the identity of the land in dispute as shown in Exhibits 3, and 4 was sufficiently proved. (Grounds 1 and 2).
2. Whether the learned trial Judge was right when he held that the 1st Respondent sufficiently proved his case/root of title and therefore entitled to judgment. (Ground 3)
3. Whether there was any misdirection on the part of the learned trial Judge in respect of the evidence of the Surveyor-General of Ogun State (DW 4) (Ground 4).
The first issue touches on the identity of the disputed land. On this issue, learned Counsel to the Appellant submitted and urged us to hold that the land claimed by the 1st Respondent is different from the portion allocated to the Appellant by the 2nd Respondent. He contended there is sufficient evidence on record to show that the Appellants land is not the same as that claimed by the 1st Respondent. He submitted the 1st Respondent who had the burden of proving the identity of the land claimed by him with certainty did not discharge that burden. He craved in aid of his submission the cases of ATUCHUKWU VS. ADINDU (2012) 6 NWLR (PT. 1297) 534, ELIAS VS. OMO-BARE (1982) 5 SC 25, ANSA VS. ISHIE (2005) 15 NWLR (PT. 948) 210.
On issue no. 2, learned Counsel submitted the lower Court misdirected itself when it rejected the document tendered by DW4 on the ground that it was not front loaded with the defence. His contention is that DW4 who was a subpoenaed witness was a witness of the Court and not that of the Defendant and as such failure to frontload the document he produced was not fatal. He urged us to hold that the failure of the trial Judge to consider the document tendered by a witness he subpoenaed was a violation of the Appellants right to fair hearing and had an adverse effect on the evaluation of evidence done by the Court.
On issue No. 3, it is the contention of Appellants Counsel that the 1st Respondent did not prove his case and therefore not entitled to the reliefs sought by him. He relied on the cases of EBO VS. ANADI (2012) 8 NWLR (PT. 1301) 69, ALAMIEYESEIGHA VS. IGONIWARI (NO. 2) 2007 7 NWLR (PT. 1034) 524 in support of his submission. He argued further that the conclusion reached by the lower Court is perverse and urged us to exercise the inherent powers of this Court to examine the findings made by it. He cited the cases of OPARAJI VS. AHIHIA (2012) 4 NWLR (PT. 1290) 266, SALISU VS. ODUMADE (2010) 6 NWLR (PT. 1190) 228, MOMOH VS. UMORU (2011) 15 NWLR (PT. 1270) 217 AND PURIFICATION TECHNIQUE (NIG.) LTD. VS. JUBRIL (2012) 18 NWLR (PT. 1331) 109 in support of his argument.
Arguing per contra, learned Counsel to the 1st Respondent referred us to excerpts from the judgment of the lower Court to submit that the findings made by the lower Court and the conclusion reached thereon that the 1st Respondent proved the identity of the disputed land was well guided. He reiterated the settled position of the law that where the identity of the disputed land is well known to the parties, proof of identity of the land is unnecessary. He relied on the cases of EZUKWU VS. UKACHUKWU (2004) 17 NWLR (PT. 902) 224, GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282, NWOKOROBIA VS. NWOGU (2009) 10 NWLR (PT. 1150) 553 AND ODOFIN VS. ONI (2001) 3 NWLR (PT. 701) 488 in support of his argument.
He submitted and urged us to hold that the learned trial Judge appraised the facts and evidence before him and correctly applied the principles of law before coming to his conclusion on the identity of the disputed land. He referred us to previous judgments tendered in evidence wherein the 1st Respondent’s predecessors in title were adjudged owners of the land to submit that where title to land has been established in previous cases it will be unnecessary for the successor in title to prove ownership. He called in aid of his submission the case of OBINECHIE VS. AKUBOSI (2010) 5 -7 PT. 11 M JSC 40 AND BUNYAN VS. AKINBOYE (2000) FWLR (PT. 41) 1977. It is Counsel’s further argument that the Appellant failed to demonstrate how the decision of the lower Court is perverse.
On the document tendered by the subpoenaed witness (DW4) which was rejected, he submitted the Appellant has not shown how the rejection of the document affected his case. He argued that in any event wrongful rejection of evidence will not lead to a reversal of judgment unless it is shown that the rejection affected the judgment. He relied on S. 251 (2) of the Evidence Act 2011 and the case of ADEYEMI VS. STATE (2014) 13 NWLR (PT. 1423) 156 in support of his submission.
He finally urged us to resolve all issues in this appeal against the Appellant and dismiss it.
In response to the 1st Respondent’s brief, the Appellant filed a reply brief of argument wherein he submitted that merely tendering a composite plan is not sufficient proof of identity of a disputed land. He argued that a composite plan would be sufficient proof only where a claimant has proved his case and not on the weakness of the case of the defendant. He relied on the cases of AWODI VS. AJAGBE (2015) 3 NWLR (PT. 1447) 578 AND ANIMASHAUN VS. OLOJO (1991) 10 SCNJ 143 in support of his argument.
The Appellant has contended that the 1st Respondent who did not prove the identity of the disputed land was not entitled to judgment. The law is well settled that in an action for declaration of title to land the onus of proof is on the Claimant to establish with certainty and precision the area of land to which his claim relates. The land must be described with such degree of accuracy that the identity would not be in doubt. The identity of the land may be proved either by documentary or oral evidence. A plan is not a sine qua non for proving the identity of land. Oral evidence may suffice. What is important is that the identity of the land is not in doubt. Where the proof is by oral evidence, the test is whether a surveyor can rely on such evidence to produce an accurate plan. Where reliance is on a Survey plan, the plan must reflect all features of the land and show the boundaries clearly. See OKONKWO VS. OKONKWO (2010) 14 NWLR (PT. 1213) 228, GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282, OGBU VS. WOKOMA (2005) 14 NWLR (PT. 944) 118, ILONA VS. IDAKWO (2003) 11 NWLR (PT. 830) 53 AND OTANMA VS. YOUDUBAGHA (2006) 2 NWLR (PT. 964) 337.
In the instant appeal, the 1st Respondent who was the Claimant at the trial called as a witness a surveyor who testified as CW1. CW1 tendered survey plans which were admitted in evidence as Exhibit C1-C4. The Appellant called a sole witness who testified as DW1 and tendered a survey plan and land information certified Survey Plan No. ISH.01 GCDC which were admitted in evidence as Exhibits D2 and D5 respectively.
DW3 stated consistently under cross-examination that he does not have the requisite expertise to read the plans he tendered. He stated in answer to questions put to him by the Claimant’s Counsel (instant 1st Respondent) at page 478 of the Record as follows:
“I know the land in dispute. It is at Magboro. Asked to look at Exhibit D5 and to read its title, says he cannot read. The land in dispute is at Magboro Ilupeju beside the main road. Asked to look at Exhibit D6.
Asked to say if community Avenue Road is there, says he cannot read plans. Admits that the land in dispute faces Lagos – Ibadan Express Road and that there is another road by the right hand side hence it is a corner piece… I cannot read the building plan and all other documents tendered through me.”
CW1 who was the maker of the Survey plan tendered by him gave a vivid explanation of the plan. His testimony is his witness statement on oath contained at pages 401 to 403 of the Record. At paragraph 4-8 thereof he testified as follows:
“4. The Claimant and Odeneye Akinwunmi Family commissioned me to produce a composite dispute survey for this lawsuit. The Composite dispute survey I produced is Plan No. OG/1331/2012/101/D dated 12th December, 2012, a copy of which is before this Court.”
4. In producing Survey Plan No. OG/1331/2012/101/D, I used Survey Plan No. OGE/58/83A dated 25th January, 1983 (admitted as Exhibit B in Suit No. AB/257/2001), composite/dispute Plan No. OG/1134/2004/034 dated 14th April, 2004, drawn by Pastor Lekan Taiwo, (admitted as Exhibit C in Suit No. AB/257/2001); composite/dispute Plan No. OG/1331/2008/86/D dated 08/09/2008 drawn by me, which was also admitted as Exhibit C in Suit No. AB/304/2008; Survey Plan No. OG/1604/2008/008 dated 26th November, 2008 and the Defendant’s Survey Plan No. ISH 01 GCDC dated 15th March, 2006.
5. Before I produced composite Survey Plan No. OG/1331/2012/101/D dated 12th December, 2012, I visited the land in dispute on several occasions for physical observations with the aid of survey tools, including the GPS.
6. That the results of my observation and analysis of all the survey plans given to me by the Claimant, as stated above, and as contained in the said Composite/Dispute Plan No. OG/1331/2012/101/D dated 12th December, 2012, which I prepared are as follows:
“a. the portion of land claimed by the Akinwunmi Odeneye family as shown in Plan No: OG/1134/2004/034 prepared by Surveyor (Pastor) Lekan A. Taiwo and which was tendered and admitted upon in Suit No. AB/257/2001 –
Akinwunmi Odeneye v. Ogun State Property Investment corporation is verged BLUE.
a. the portion of land upon which perpetual injunction was granted in favour of Akinwunmi Odeneye Family against Julius Berger Plc in Suit No. AB/257/2001 as shown in Composite Plan No. OG/1134/2004/034 prepared by Surveyor (Pastor) Lekan A. Taiwo on 14th April, 2004 is verged BLACK.
b. the portion of land shown and described in Survey Plan No. OGE/58/83A dated 25th January, 1983, is the SAME parcel of land verged BLACK in Composite Plan No. OG/1134/2004/034 prepared by Surveyor (Pastor) Lekan A. Taiwo on 14th April, 2004 in Suit No. AB/257/2001.
c. the portion of land upon which judgment was obtained in favour of Akinwunmi Odeneye Family in Suit No. AB/304/2008 – Akinwunmi Odeneye Family v. SAKR Power Generation Nigeria Ltd as shown in Plan No. OG/1331/2008/86/0 prepared by me is verged YELLOW.
d. the portion of land being described in Survey Plan OG/1604/2008/008 drawn by Surveyor M.O. Idowu on 26th November, 2008 as CLAIMED BY THE CLAIMANT in this suit is verged GREEN.
e. the portion of land described in Plan No. ISH 01 GCDC AS CLAIMED BY THE 1ST DEFENDANT in this suit is verged RED
7. That in the course of considering and charting the survey Plans mentioned in paragraph 5 above, I also found that:
a. the land being claimed by the Defendant in this suit, as shown in Survey Plan No. ISH 01 GCDC dated 9th March, 2006 (which is also verged RED in Survey Plan No. OG/1331/2012/101/D, paragraph 7(e) above) forms part of the land being claimed by the Claimant as shown in Survey Plan No. OG/1604/2008/008 dated 26th November, 2008 (which is verged GREEN in composite Survey Plan No. OG/1331/2012/101/D, paragraph 7(d) above.
b. The land described in Survey Plan No. OG/1604/2008/08 dated 26th November, 2008 which is verged GREEN in composite Survey Plan No. OG/1331/2012/101/D paragraph 7(d) above forms part of the land upon which perpetual injunction was granted in favour of the Akinwunmi Odeneye Family in SUIT NO. AB/257/200/ (which is also verged BLACK on Survey Plan No. OG/1331/2012/101/D dated 12 December, 2012.”
CW1 described the disputed land through the survey plans he tendered. He interpreted Exhibits C1 – C4 and Exhibit D5 tendered by DW1 (the Appellants sole witness). He concluded his testimony by stating that the land claimed by the Appellant as counter claimant form part of the land claimed by the 1st Respondent. He was cross-examined by the Counsel to the Appellant and that of the 2nd Respondent. Both of them did not cross-examine him on the fine details given by him in the interpretation of Exhibits C1- C4 and D5. See pages 454 to 455 of the Record.
It is trite that failure to cross-examine a witness on a particular matter is a tacit acceptance of the truth of the evidence of the witness See CAMEROON AIRLINES VS. OTUTUIZU (2011) 4 NWLR (PT. 1235) 512 PASCUTTO VS. ADECENTRO (NIGERIA) LIMITED (1997) 11 NWLR (PT. 529) 467.
In the case of BRONWEN ENERGY TRADING LTD VS. OAN OVERSEAS AGENCY (NIGERIA) LTD. & ORS (2022) LPELR 57306 (SC), the Supreme Court Per PETER-ODILI JSC held as follows:
“Interestingly, the same material piece of uncontroverted evidence was picked from the witness statement of the 1st Respondent witness and restated by the Appellant in paragraph 4.25 of the Appellants brief. This evidence was uncontroverted and still unchallenged under cross-examination. Failure to cross-examine on a matter is acceptance of the fact. See GAJI VS. PAYE (2003) 8 NWLR (pt. 823) 583 at 605. No further proof is required.”
The unchallenged evidence of CW1 is that the land claimed by the Appellant who was the counter claimant at the lower Court is part of the land claimed by the 1st Respondent. This evidence of CW1 on the identity of the land is acceptable to the Appellant hence he elected not to cross-examine him on it and I so hold.
Counsel to the Appellant has also made a heavy weather of the findings of the learned trial judge on the evidence of DW4 who testified upon a subpoena issued by the Court. DW4 is one Sunday Afolabi Ajayi, the Acting Surveyor General of Ogun State. He appeared before the lower Court on the 21st of October, 2013 and his testimony is at pages 498 to 502 of the Record. He adopted a Witness Statement on Oath attributed to him. The 2nd Respondent sought to tender a survey plan in evidence through him. The 1st Respondent objected to the admissibility of the document. The objection was sustained by the learned trial judge who refused to admit the survey plan in evidence.
Now, the contention of the Appellant is that the learned trial judge misdirected himself when he refused to admit the survey plan in evidence and failed to consider the evidence contained in DW4’s witness statement on oath.
It is significant to note that DW4 appeared in Court pursuant to a subpoena Duces Tecum issued upon an application made to the Court by the 2nd Respondent. The application which is at page 451 of the Record reads thus:
“We hereby apply for the issuance of Subpoena Duces Tecum on the Surveyor General of Ogun State – Surveyor Ajayi of the Survey Development, Bureau of Lands and survey, Oke -Ilawo, Abeokuta.”
A copy of the Subpoena Duces Tecum is at page 452 of the record.
A Subpoena duces tecum is a process by which the Court at the instance of a party commands a witness who has in his possession or control some document or paper that is pertinent to the issues in a pending suit to produce it at the trial. A person attending Court under a Subpoena duces tecum need not be sworn and cannot be cross-examined. The document he produces does not become evidence upon production. He places the document before the Court and becomes an exhibit only after it is identified by a competent witness who tenders it in evidence. See FAMAKINWA VS. UNIVERSITY OF IBADAN (1992) 7 NWLR (PT. 255) 608, OJOKOLOBO VS. ALAMU (1991) 1 NWLR (PT. 165) 1, ANATOGU VS. IWEKA II (1995) 8 NWLR (PT. 415) 547 AND SECTIONS 218 AND 219 OF THE EVIDENCE ACT 2011.
DW4 who was before the Court on a subpoena duces tecum cannot give evidence like he did and cannot be cross-examined. All evidence given by him in chief and that elicited under cross-examination is of no consequence and I so hold. Failure of the trial Court to evaluate the evidence and refusal to admit the survey plan produced in evidence goes to no issue and I so hold.
In any event, there is evidence before the lower Court that the survey plan rejected is the same as Exhibit C3. The Appellant had ample opportunity to make use of Exhibit C3 for whatsoever purpose he desired. I do not see how the refusal of the learned trial judge to admit the survey plan produced by DW4 a subpoenaed witness affected the Appellants case and occasioned a miscarriage of justice to him.
Furthermore, CW2 who is a principal member of the Akinwunmi Odeneye Family whom the 1st Respondent claim are his vendors described the disputed land as being part of the land adjudicated upon in SUIT NO. AB/257/2007 BETWEEN CHIEF OLUWO ODENEYE AKINWUNMI & 4 ORS VS. JULIUS BERGER NIGERIA PLC delivered on 19th January, 2007 and gave specific details of the location of the land. As I stated earlier CW1 also gave unchallenged evidence of the location of the land. The 1st Respondent also relied on Survey Plan, Exhibit C3 to describe the land. In answer to questions put to him under cross-examination DW1, the Appellant’s sole witness admitted the location of the disputed land as being on the right side when travelling from Lagos to Ibadan on the express Road and approaching the MFM Ministry. This is the same description of the land given by CW2.
It is significant to note that the Appellant applied to be joined as a defendant in the suit at the lower Court. The suit was originally filed against unknown persons. The Appellant and the 2nd Respondent identified themselves as the unknown persons and sought to be joined as defendants. The question l ask myself is that if the identity of the land is not known by the Appellant, would he apply to be joined as a party? He must know the subject of the dispute to have presented himself as the unknown person. The Appellant knows the location of the disputed land and I so hold.
The law is well settled that where the land in dispute is known to both parties, issues need not be joined on its identity. See ATANDA VS. ILIASU (2013) 6 NWLR (PT. 1351) 529, EKPEMUPOLO VS. EDREMODA (2009) 8 NWLR (PT. 1142) 166, EBEVUHE VS. UKPAKARA (1996) 7 NWLR (PT. 460) 254.
In AYUYA VS. YONRIN (2011) 10 NWLR (PT. 1254) 135 AT 166-167 PARAGRAPHS E-A, ONNOGHEN JSC held as follows:
“It is common occurrence in land matters for parties to refer to same piece or parcel 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 neighbor and describes the boundaries of the said land in a survey plan which is tendered and admitted in evidence, that survey plan clearly refers 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 to also testify as to the features etc on the land in issue.
Where the Court agrees with him then he wins and is awarded title to the land in issue irrespective of the contrary case presented by the defendant as to the mode of acquisition of the title, the identity and extent of the disputed land.”
In the instant appeal, facts and evidence on record reveal that the disputed land is known to both parties who elected to call it different names. All attempts by the Appellant to impugn the survey plan, Exhibit C3 is a non-issue in this appeal and I so hold. The identity of the land is not in issue hence a determination of the credibility of the survey plan Exhibit C3 relied on by the 1st Respondent is unnecessary.
It is also important to note that the Appellant counter-claimed. The law is that where a defendant who counter-claims seeks reliefs touching on ownership of a disputed land and an order of injunction, he cannot turn around to argue that the identity of the land is unknown to him. A defendant cannot counter-claim over a piece of land the identity of which he does not know. See ANYANWU VS. UZOWUAKA (2009) 13 NWLR (PT. 1159) 445. The Appellant who counter-claims for ownership of the disputed land cannot be heard to argue that the 1st Respondent failed to establish its identity. My conclusion on the complaint of the Appellant that the land in dispute was not proved by the 1st Respondent is that the learned trial judge was right when he held that the parties are ad idem on the identity of the disputed land and that same was not in issue. The identity of the disputed land was not in issue and I so hold.
Having settled the issue of identity of the land, it now remains to determine whether the 1st Respondent proved his case to be entitled to the declaration of title granted him by the lower Court. It is trite that it is the duty of the party who seeks a declaration of title of land to prove his claim by credible evidence. The onus is on him to satisfy the Court that he is entitled to the declaration sought based on the evidence presented by him. He must rely on the strength of his own case and not on the weakness of the defendant’s case. See ONEMU VS. COMMISSIONER FOR AGRICULTURE AND NATURAL RESOURCES, ASABA (2019) 11 NWLR (PT. 1682) 1, NRUAMAH VS. EBUZOEME (2013) 13 NWLR (PT. 1372) 474, OHIAERI VS. AKABEZE (1992) 2 NWLR (PT. 221) 1.
It is further the law that where the defendant has counter-claimed, he equally has the onus of establishing his case just as he would if he were the original claimant. It is trite that a counter-claim is an independent action subject to the same rules of pleading and standard of proof as the main action. See AKINBADE VS. BABATUNDE (2018) 7 NWLR (PT. 1618), ATIBA IYALAMU SAVINGS AND LOANS LTD VS. SUBERU (2018) 13 NWLR (PT. 1637) 387, KOLADE VS. OGUNDOKUN (2017) 18 NWLR (PT. 1596) 152, NSE FIK VS. MUNA (2014) 2 NWLR (PT. 1390) 151.
It follows therefore that both the Appellant and the 1st Respondent had a duty to prove the declaration of title sought by them. They both had a duty of proving the ownership of the disputed land.
It is the settled position of the law that there are five different methods of proving ownership of a disputed land. They are:
1. Proof by traditional evidence.
2. Proof by production of documents of title duly authenticated.
3. Proof by acts of ownership such as selling, leasing, making a grant, renting out all or any part of the land or farming thereon extending over a significant length of time numerous and positive enough to warrant the inference that the person exercising such proprietary acts are the true owners of the land.
4. Proof by acts of long possession and enjoyment of the land.
5. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the disputed land.
See ORIANZI VS. ATTORNEY GENERAL RIVERS STATE (2017) 6 NWLR (PT. 1561) 224, AIYEOLA VS. PEDRO (2014) 13 NWLR (PT. 1424) 409, NRUAMAH VS. EBUZOEME (2013) 13 NWLR (PT. 1372) 474, ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (PT. 424) 252 AND IDUNDUN & ORS VS. OKUMAGBA (1976) 99 AND 10 SC 227.
It is significant to note that a Claimant may choose to prove his title vide any one of the methods.
It is further the law that the mode of acquisition of title to land may be proved in any of the following ways:
1) By first settlement on the land and deforestation of the virgin land;
2) By conquest during tribal wars;
3) By gift;
4) By grant-customary;
5) By sale;
6) By inheritance etc.
From a careful perusal of the pleadings and the evidence presented at the trial by the 1st Respondent, it is apparent he traced his root of title to the Akinwunmi Odeneye family. His case is that he was led into possession of the disputed land measuring 3,888.19 Square metres by accredited members of the family. He tendered the land purchase agreement evidencing sale of the family land to him by the Akinwunmi Odeneye family which was admitted in evidence as Exhibit C18. The 1st Respondent relied on sale of land as proof of his acquisition of the disputed land as well as a judgment of the lower Court in SUIT NOS. AB/257/2007 Between: CHIEF OLUWO ODENEYE AKINWUNMI & 4 ORS VS. JULIUS BERGER NIGERIA PLC & ANOR. (Exhibit C5). The law is settled that previous judgments are admissible in evidence as proof of acts of possession. See NWAKONOBI VS. UDEORAH (2013) 7 NWLR (PT. 1354) 499, ALLI VS, ALESINLOYE(2000) 6 WLR (PT. 660) 177 UKAEGBU VS. UGOJI (1991) 6 NWLR (PT. 196) 127 AND OKAFOR & ORS VS. OBIWO & ANOR (1978) 9 & 1O SC 115.
The 1st Respondent relied on Exhibit C5 (the judgment) and Exhibit C18 (the Land Purchase Agreement) to prove his ownership of the disputed land.
The case of the Appellant as presented by this sole witness DW1 is that it derived his title vide an allocation made by the 2nd Respondent Gateway City Development Company Ltd. Documents evidencing the allocation were tendered and admitted in evidence as Exhibits D1, D2, D4 and D5.
The 2nd Respondents case is that the disputed land formed part of a large parcel of land measuring approximately 10.020 hectares acquired by the Ogun State Governed in 1986. His evidence is that due process was followed in the acquisition of the land gazette in Ogun State of Nigeria Gazette No. 47 vol. II of 30th November 1986 and further confirmed the allocation to the Appellant. It is further the case of the 2nd Respondent that the judgment Exhibit C5 relied on by the 1st Respondent is in respect of a separate parcel of land.
Exhibit C5 is the Judgment in SUIT NO. AB/257/2007. The learned trial Judge at pages 22-24 of Exhibit C5 held as follows:
“In other words, the 2nd Defendant acknowledges in clear terms that there was a previous owner (the Plaintiffs) but says their title to the land has been divested them by a government acquisition following which or pursuant to which Exhibit E was issued to a new owner – 2nd Defendant (OPIC).
I say, at this stage the onus shifted on to the 2nd Defendant to prove it now has a title better than that of the Plaintiff having been granted same by the Ogun State government. What manner of Evidence has the Defence brought before this Court in support of their contention.
I note that learned Counsel and of course DW1 referred to a Government Gazette No. 47 of 20/11/1986 which published the Acquisition Notice concerning the land in dispute. The Government Gazette is a Public Instrument therefore this Court can take judicial Notice of its contents even though the Defence did not think it fit to tender it as an Exhibit DW1 said:
“We served copies of the Acquisition Notice in the National Daily Newspaper. We served copies of the Acquisition Notice in the Towns and villages within the acquisition area personally and also by posting copies at conspicuous places for the general Public where there were no people”
“Under cross-examination, this witness Mr. Israel Ishola Aboaba who told this Court he works in the Bureau of lands and Survey and was in charge of Acquisition and compensation said he has been in the bureau since 1986. He said… such contradictory and worthless evidence was told this Court by this Government official who no doubt was to testify in proof of the Government Acquisition of the land in dispute and in effect establish the authenticity of Exhibit E.
I say considering that he said before this Court, his evidence has placed no value on whatever if anything that was done by way of acquisition of the land in dispute or any land at all…”
The trial judge went on at page 25-26 as follows:
“It does not suffice that a Government Gazette is available. The procedure for acquisition under the law particularly concerning Notice must be adhered to in order to make a valid acquisition which happens to be the basis of Exhibit E. That is the plank upon which it rests.
As I said it has been settled that a certificate of occupancy is not a magic wand that destroys existing rights over a land in dispute.
It is clear from the evidence put up by the defence and their statement of Defence that the very basis of their Defence is a purported Acquisition of 1986. S. 44 of the Land Use Act Chapter L5 Laws of the Federation 2004 prescribes the manner of serving Notices of Acquisition…
The lone Defence witness did not bother to show that this provision of the law was complied. It does not appear that DW1 was really in the know regarding this acquisition where a statute specifically provides for a particular way in which Government or any person can obtain title, a party can only acquire title by strict compliance with the statute.
He held at page 28 as follows:
“The Plaintiffs have shown they have been in possession since time immemorial and the Defendants have not disputed this but claim to have got a title via Government acquisition and a certificate of occupancy. I still maintain my stand above that DW1 failed woefully to persuade this Court that there was a valid acquisition upon which to base certificate of occupancy in respect of the land in dispute.
A party who has been in exclusive possession of land but was wrongly dispossessed is entitled to recover possession. UFOMBA VS. AHUCHAOGU (2003) 4 SCNJ page 231 at 244 – 5.
I hold that the title of the Plaintiffs has not been faulted or lawfully divested them. At least the Defence has failed to establish this in this instant case.”
The trial judge concluded at page 31 of the judgment as follows:
“This action succeeds and I hereby grant the following in favour of the Plaintiffs.
1. Perpetual injunction restraining the Defendants, their servants, agents or privies from further interfering with the Plaintiffs farmland properties shrines and graves situate lying and being at Oke-Afa Village, Wasinmi Obafemi Owode Local Government, Ogun State along Lagos/Ibadan Express Way or from doing anything adverse to the interest title or claim of the Plaintiffs which are more particularly shown and delineated on survey plan No. OGE 58/83 dated 25 January 1983 and drawn by licensed Surveyor S.A. Ogunbiyi.
2. The sum of N500,000.00 (Five Hundred Thousand Naira) being general Damages for trespass committed by the Defendants on the said land of the Plaintiffs as above.”
The parties in the above suit which is SUIT NO. AB/257/2001 are as follows:
1. CHIEF OLUWO ODENEYE AKINWUNMI
(Head of Odeneye Family of Oke-Afa Omutedo)
2. WAHAB ODENEYE
3. ALHAJI SIMBIATU TAIWO AKINWUNMI
4. AYINDE SOWUNMI ODENEYE
5. ALIRATU ODENEYE (For themselves and on behalf of the Akinwunmi Odeneye Family Oke-Afa Village, Wasinmi Obafemi Owode Local Government, Ogun State – PLAINTIFFS
AND
1. JULIUS BERGER (NIG) PLC
2. OGUN STATE PROPERTY & INVESTMENT CORPORATION – DEFENDANTS
The title of the instant Appellant is rooted in an acquisition made by the Ogun State Government published in Ogun State of Nigeria No. 47 Volume II of 20th November, 1986. The judgment in SUIT NO. AB/257/2001 (Exhibit C5) excerpts of which I quoted extensively above is in respect of the same parcel of land acquired by the Ogun State Government and published in Ogun State of Nigeria No. 47 Volume II of 20th November, 1986. There is sufficient evidence on record to show that the parcel of land in respect of the judgment in SUIT NO. AB/257/2001 is the same as the one from which the 1st Appellant derived its title. The Appellant’s claim is that he was allocated part of the larger parcel of land acquired by the Ogun State Government.
The Court in Exhibit C5 found that the acquisition of the land in issue was not proved and went on to grant an order of perpetual injunction restraining the Defendants, their servants, agents privies from further interfering with the interest title or claim of the Plaintiffs in relation to the disputed land delineated on survey Plan No. OGE/58/8 dated 25th January, 1983. There is nothing before us to show that the judgment in Exhibit C5 has been set aside on appeal or that there is any subsisting appeal against it.
It is settled law that a decision of a Court or Tribunal not appealed against is subsisting and remains binding on the parties and all and sundry See PILLARS NIGERIA LIMITED VS DESBORDES (2021) 12 NWLR (PT. 1789) 122, UGO VS. UGO (2017) 18 NWLR (PT. 1597) 218, NSIRIM VS. AMADI (2016) 5 NWLR (PT. 1504) 42 AND AKERE VS. GOVERNOR OF OYO STATE (2012) 12 NWLR (PT. 1314) 240.
The survey plan on which the order of perpetual injunction was granted is the same as Exhibit C1 in the instant case. The 1st Respondent who was the Claimant at the lower Court sufficiently described Exhibit C1 as part of the large expanse of land purportedly acquired by the Ogun State Government and which acquisition was set aside in SUIT NO. AB/257/2001 (Exhibit C5). The Plaintiffs in Exhibit C5 is the Akinwunmi Odeneye Family who the 1st Respondent proved are his predecessors in title. The land which was adjudged as that of the Plaintiffs in Exhibit 5 is the same large parcel of land from which the allocation to the Appellant was made. The 1st Respondent is a privy of the Plaintiff in SUIT NO. AB/257/2001. He purchased the disputed land from them. The land purchase agreement was tendered in evidence.
There is no challenge to the evidence of the 1st Respondent’s title by the Odeneye Akinwunmi Family. The title of the Ogun State Government in the disputed land was set aside by the subsisting judgment in SUIT NOS. AB/257/2001.
The 2nd Respondent that made the Allocation to the Appellant is a privy of the Ogun State Government and therefore bound by the decision in SUIT NOS. AB/257/2001. The acquisition by the Ogun State Government of the disputed land has been set aside. The 2nd Respondent therefore had no valid title to transfer to the Appellant and I so hold. The Appellant must bear the consequences of the failure on the part of its predecessor in title to validly acquire the disputed land.
The decision of the lower Court dismissing the counter-claim of the Appellant cannot be faulted and it is hereby affirmed.
In conclusion, all the three issues identified for determination in this appeal are resolved in favour of the 1st Respondent and against the Appellant. Consequently, I find this appeal devoid of merit and it is hereby dismissed.
The judgment of the lower Court in SUIT NOS. M/37/2009 BETWEEN: MR. AKINWUNMI ADEDAYO FREDRICK …. CLAIMANT AND (1) APRIL CO-ORDINATE LTD. (2) GATEWAY CITY DEVELOPMENT COMPANY LTD … DEFENDANTS delivered on the 21st of February, 2014 is hereby affirmed.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading the draft of the judgment just delivered by my learned brother, FOLASADE ADEDEJI OJO, JCA.
It is quite settled that there are five (5) recognized ways by which a party can prove his title to land and they are:
(a) By traditional evidence;
(b) By production of documents of title;
(c) By proving acts of ownership, numerous and positive enough to warrant an inference that the claimant is the actual or true owner;
(d) By proving acts of long possession and enjoyment of the land under the Evidence Act; and
(e) By proving possession of connected or adjacent land.
See D. O. Idundun & Ors v. O. Dami Okumagba (1976) 9 – 10 SC 224, Sunday Piaro v. Chief Wopnu Tenalo & Ors (1976) 12 SC 31, Chief Samusideen Afolabi Ayorinde & 6 Ors v. Chief Hassan Sogunro & 6 Ors. (2012) 11 NWLR (Pt. 1312) 460 and Alhaji Lasisi Salisu & Anor v. Alhaji Abbas Mobolaji & 2 Ors (2016) 15 NWLR (Pt. 1535) 242.
In this case, the 1st respondent proved by preponderance of evidence of long possession and various acts of ownership; while the appellant’s attempt of proving its ownership by acquisition from the Government was very woeful, as it did not lead nor tender any credible evidence to show that the land was properly and validly acquired from its original owners.
It is for all the reasons given above and the fuller reasons of my learned brother that I also dismiss this appeal for being devoid of any merit.
I abide by the orders made in the leading judgment.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, FOLASADE AYODEJI OJO, JCA and I am in complete agreement with the lucid reasoning and conclusion arrived at in the judgment. To add my voice, it is trite that while the onus is on the Claimant in an action for declaration of title to land to show the land to which his claim relates, the identity of a land will be in issue only if the defendant in his statement of defense makes it so. However, where the disputed land is well known to both parties, the issue of identity of the land in dispute did not arise. See OSHO V. APE (1998) 8 NWLR (pt. 562), EZUKWU V. UKACHUKWU (2004) 17 NWLR (pt. 902) 227, GBADAMOSI V. DAIRO (2007) 3 NWLR (pt. 1021) 282, YUSUF V. DADA & ANOR (2017) LPELR, ANAGBADO V. FARUK (2018) LPELR-44909 (SC).
In the instant case, it would be seen from the record that the 1st Respondent instituted the action against unknown persons, thereafter the Appellant through an application sought to be joined as a party which was granted by the Court below. The Appellant cannot turn around to argue that the identity of the land is unknown to him because the law is settled that a defendant who counter-claims is prohibited from asserting that he does not know the identity of the land for which he is sued and which apart from denying the claim, he goes ahead to counter-claim. See BATURE & ORS V. YERO (2019) LPELR-48263(CA), OKUNDIA & ANOR V. IGBAVBOA & ANOR (2021) LPELR-5416(CA) and ANYANWU VS. UZOWUAKA (2009) 13 NWLR (PT. 1159) 445.
Therefore, I adopt the resolution in the leading judgment as mine and abide by the orders made therein.
Appearances:
A. A. AYODELE, with him, O.O. AYODELE For Appellant(s)
KOLAWOLE ABIRI – for 1st Respondent
ADEKUNLE MANUWA, CHIEF STATE COUNSEL, OGUN STATE MIN. OF JUSTICE, with him, O.N. ONABIYI, STATE COUNSEL – for 2nd Respondent For Respondent(s)
