ASANIKE v. AJIGBOTOSHO & ORS (2020)

ASANIKE v. AJIGBOTOSHO & ORS

(2020)LCN/14892(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/IB/427/2014

RATIO

APPEAL: TRADITIONAL ROLE OF A RESPONDENT

The law is trite and beyond any peradventure that the traditional role of a Respondent is to defend the judgment of the lower Court. He cannot abdicate this traditional role and he is expected to support the judgment of the lower Court on appeal. See CAMEROON AIRLINES VS. OTUTUIZU (2011) 4 NWLR (PT. 1238) 512; IMONIYAME HOLDINGS LIMITED VS. SONEB ENTERPRISES LTD. (2010) 4 NWLR (PT. 1185) 561; ZAKIRAI VS. MUHAMMAD (2017) 17 NWLR (PT. 1594) 181 AND FHA VS. INNOCENT (2018) LPELR 46955. PER OJO J.C.A.

APPEAL: NATURE OF A RESPONDENT’S NOTICE

Order 9 Rule 2 (supra) provides thus:
“A Respondent who desires to contend on appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by that Court, must give notice to that effect specifying the grounds of that contention.”
A Respondent’s Notice presupposes that the judgment of the lower Court appealed against is perfectly right having regard to the oral and documentary evidence adduced and proffered before it by the parties, but that the reason given by the Court in its judgment was wrong. In other words, the Respondent in the notice acknowledges that the lower Court came to the right conclusion but for the wrong reason. A Respondent’s notice must be limited to points which must have arisen in the appeal. Where a Respondent desires a reversal of any conclusion of fact in the judgment or any important finding therein, he would be required to file a cross appeal. See OGUMA VS. INTERNATIONAL BANK FOR WEST AFRICA LIMITED (1988) 1 NWLR (PT. 73) 658; NSIRIM VS. AMADI (2016) 5 NWLR (PT. 1504) 42; ANYADUBA VS. NIGERIAN RENOWNED TRADING CO. LTD. (1990) 1 NWLR (PT. 127) 397.
In TOUTON S.A. VS. GRIMALDI COMPAGNIA DI NAVIGA ZION S.P.A. (2011) 4 NWLR (PT. 1236) PG. 1 AT 24 PARAS B – C, Okoro JCA held as follows:
“In a respondent’s notice, a respondent acknowledges that the lower Court came to the right conclusion but for the wrong reason, and therefore seek an affirmation of the judgment or decision of the lower Court on grounds other than those relied upon by the lower Court. It is not an opportunity to raise fresh issues which had not come up for consideration before the lower Court. See DELTA STATE GOVERNMENT VS. DR. EFFIONG JOHNSON OKON & ANOR. (2002) 2 NWLR (PT. 752) 655.”
In DR. MIKE ONUGH & ANOR. VS. BARR. MRS NJIDOKA EZEIGWE & ORS (2011) 13 NWLR (PT. 1263) 184 AT 199 A – E per Tsamiya JCA who said:

“The essence of this notice is that the respondent desires to contend that even if the appellant’s appeal is well taken, still the judgment on appeal ought not to be set aside, there being other principles of law or findings of fact not relied upon by the Court below but which can sustain the judgment. In other words, the respondent wants the judgment to be affirmed on other grounds than the ones on which it is based. The invocation of the rule postulates that the judgment is correct but that the reasons for it are based on wrong premise where there is enough evidence on record which can sustain the judgment on the other grounds other than those relied upon by the trial Court. The respondent’s notice postulates the correctness of the judgment notwithstanding grounds of appeal, by the appellant to set it aside. See SUNMONU VS. ASHOROTA (1975) 1 NMLR 16. A respondent can only properly file a notice for affirmation of the judgment appealed against if he intends to retain the decision but at the same time wants it to be affirmed on other grounds. See ELIOCHIN (NIG.) LTD. VS. MBADIWE (1986) 1 NWLR (PT. 14) 47…..” PER OJO J.C.A.

LAND LAW: DUTY OF A CLAIMANT IN A CLAIM FOR DECLARATION FOR TITLE TO LAND

It has been settled by a long line of judicial authorities that in a claim for declaration of title to land, the claimant has a duty to adduce sufficient and credible evidence to establish the mode of acquisition of his title and must succeed on the strength of his own case and not on the weakness of the defence. The claimant may however take advantage of the case of the defendant where it supports his own case. See AJIBOYE VS. ISHOLA (2006) 13 NWLR (PT. 998) 628; AKINDURO VS. ALAYA (2007) 15 NWLR (PT. 1057) 312; ISEOGBEKUN VS. ADELAKUN (2013) 2 NWLR (PT. 1337) 140 and OKE VS. EKE (1982) 13 NSCC 547. PER OJO J.C.A.

LAND LAW: WAYS OF PROVING OWNERSHIP TO LAND

Furthermore, to succeed in a claim for declaration of title to land, the claimant must establish ownership by one or more of the following modes:
(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.
See AJIBOYE VS. ISHOLA (2006) 13 NWLR (PT. 998) 628; OYADARE VS. KEJI (2005) 7 NWLR (PT. 925) 571 and OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849) 326. PER OJO J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

PRINCE BIOYE OLOYEDE-ASANIKE APPELANT(S)

And

1. SHEHU ISMAILA AJIGBOTOSHO 2. MR. TUNDE ADESINA 3. DR. H. A. AJIBADE RESPONDENT(S)

FOLASADE AYODEJI OJO J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice, Oyo State sitting in Ibadan in Suit No: I/934/2009 Between PRINCE BIOYE OLOYEDE-ASANIKE AND (1) ALHAJI AMUSA AJIGBOTOSHO (2) MR. TUNDE ADESINA (3) DR. H.A. AJIBADE delivered on 27th February, 2014. In that Judgment, the trial Court found substantially against the Appellant on the issues he submitted for determination and held that he failed to prove his title to the land in dispute.

The Appellant instituted an action before the lower Court vide a Writ of Summons filed on 7th of July, 2009. By his Further Further Amended Statement of Claim filed on 26th of February, 2013, he sought the following reliefs against the Respondents jointly and severally:
(a) A Declaration that the Claimant is the person entitled to a Statutory Declaration of Occupancy on all that piece and parcel of land situate, lying and being at Idi-Omo Area, Ibadan measuring approximately 12.245 acres more particularly shown in Plan No: ASR/186/450 prepared by Surveyor Oyetunde Bolarinwa dated 19th May, 1986.

(b) Perpetual injunction restraining the defendants, their servants, agents, privies or anybody claiming through them from further trespassing on the Claimant’s land situate, lying and being at Idi-Omo Village more particularly shown in Plan No: ASR/186/449 and ASR/186/450 measuring approximately 44.036 acres and 12.245 acres respectively dated 19th May, 1986 prepared by Surveyor Oyetunde Bolarinwa.
(c) N20,000 general damages from each Defendant.

The 1st and 3rd Respondents (as defendants) filed an Amended Statement of Defence on 23rd of March, 2012 while the 2nd Respondent as 2nd defendant filed his Amended Statement of Defence on 20th of March, 2012. Parties further joined issues at the lower Court by the filing of the following processes.
1) Reply to the Amended Statement of Defence of the 1st and 3rd Defendants filed on 14th May, 2012. (See pages 312 – 315 of the record).
2) Reply to the Amended Statement of Defence of the 2nd Defendant filed on 11th May, 2012. (See pages 316 – 318 of the record).
3) Final Written Address of the Claimant filed on 18th February, 2014. (See pages 386 – 402 of the record).

4) 1st and 3rd Defendants Final Written Address filed on 20th February, 2014. (See pages 403 – 420 of the record).

A summary of the case of the Appellant as the Claimant at the lower Court is that he purchased two (2) parcels of land from the Adeniji Family of Alli Compound, Ibadan sometimes between 1985 and 1986. The size of Parcel A is 44.036 acres while parcel B measures 12.245 acres. After the purchase, he cleared the land for the purpose of constructing a hotel complex thereon. He was however forced to give up his planned project when he was informed by the Ajoda New Town Development Authority that the land falls within the Authority’s Green Belt Acquisition Zone. Sometimes in the year 2000, he got information that the Ajoda New Town Development Authority has released the entire land in the area. Upon further enquiry, he was informed that the land he earlier bought from the Adeniji Family had been sold to the 1st Respondent’s father, Alhaji Amusa Ajigbotosho. He met the 1st Respondent’s father who confirmed to him that he bought the land but that he had sold it

to the 2nd and 3rd Respondents. The land sold to the 2nd and 3rd Respondents was parcel B measuring approximately 12.245 acres. It was the Appellant’s case at the lower Court that he was able to settle with the people who bought parcel A but all efforts made to settle amicably with the 2nd and 3rd respondents over parcel B failed and this resulted into the litigation at the lower Court.

The Respondents placed a different set of facts before the trial Court in their Amended Statement of defence as well as their evidence on record. They denied all the allegations contained in the Appellants Further Further Amended Statement of Claim. Their case is that one Alhaji Amusa Ajigbotosho the 1st Respondent’s father bought the disputed land from the Adeniji Family. That between 1991 and 1992 (both years inclusive) Alhaji Ajigbotosho sold part of the land to the 2nd and 3rd Respondents and that the 3rd Respondent has been exercising continuous acts of possession on the land since then. They claim further that sometimes in 1993 when the Appellant challenged the 3rd Respondent’s ownership of the land, a meeting was

held with the 3rd Respondent, Late Alhaji Ajigbotosho, the Mogaji and Mr. Isa in attendance. That at the meeting, the Mogaji of Adeniji Family informed everyone present that his family sold the land to Alhaji Ajigbotosho and not the Appellant. The Appellant who promised to show all the documents evidencing the sale of the land to him never did.

All the Respondents contended during the trial that the Appellant’s action is statute barred and urged the trial Court to dismiss the suit with substantial cost for being frivolous and speculative.

At the trial the Appellant testified on his own behalf and called eight other witnesses. The 1st and 2nd Respondents testified and called three other witnesses. In a considered judgment, the learned trial judge gave judgment in favour of the Respondents and held specifically at page 439 of the record as follows:
“For the foregoing reasons, the Claimant claim fails and it is hereby dismissed.”

The trial Court in its judgment made the following findings which I find necessary to state:
1) That the cause of action accrued in the year 2000 when the Appellant met

with the Late Ajigbotosho who told him (Appellant) that he bought the land in dispute from the original owners and had sold it to the 2nd and 3rd Respondents. (see page 434 of the record)
2) That the Writ of Summons filed on 7th July, 2009 shows that the Appellant’s suit was commenced within 10 years of the accrual of the action. (see pages 434 – 435 of the record)
3) That since the 2nd and 3rd Respondents are still on the land in dispute, the Appellant’s action is not statute barred. (see page 435 of the record)
4) That the land in dispute is well known to the parties and it is the 12 acres of land sold by the Late Ajigbotosho to the 2nd and 3rd Respondent. (see page 436 of the record)
5) That there is no scintilla of evidence from the Appellant or any of his witnesses to prove that the Adenigi and/or Adeniji family physically handed over the land to him (Appellant) in the presence of witnesses and not a single name of anybody present at the handing over was mentioned. The Appellant did not call anyone who witnessed the physical handing over of the land to him by the Adeniji or Adenigi family. (see pages 437 – 438 of the record)

6) That the Appellant failed woefully to establish his assertion that he purchased the land in dispute under Native Law and Custom and the mere fact that he cleared the land with Caterpillar is not enough to prove his title to the land in dispute. (see page 438 of the record)
7) That the designation Adeniji and/or Adenigi is of no moment. Both the Appellant and Respondents know the family they are referring to and it is the same family that originally owned the land and whose family compound is Alli Compound Opopo Yeosa Village near Egbeda, Egbeda Local Government Area, Ibadan. (See page 439 of the record)

The Appellant who is dissatisfied with the judgment of the trial Court filed the instant Appeal. The Notice of Appeal with four (4) Grounds of Appeal was filed on 28th April, 2014. (See pages 440 – 443 of the record). The Record of Appeal transmitted to this Court on 1st September, 2014 was deemed properly transmitted on 26th March, 2019. The 1st and 3rd Respondents filed a “NOTICE OF INTENTION TO CONTEND THAT JUDGMENT SHOULD BE AFFIRMED ON GROUNDS OTHER THAN THOSE RELIED

UPON BY THE COURT BELOW” on 16th of October, 2019 and was deemed as properly filed on 21st October, 2010.

Parties filed their respective Briefs of Argument identified hereunder as follows:
1) Appellant’s Brief of Argument settled by Prince Abioye Oloyede – Asanike filed on 30th of March, 2015 was deemed properly filed on 26th of March, 2019.
2) 1st and 3rd Respondents Brief of Argument settled by Laolu Oyelakin of Counsel filed on 16th October, 2019 was deemed as properly filed on 21st October, 2020.
3) 2nd Respondent’s Brief of Argument settled by Oluseye Chukwura filed on 15th October, 2019 was deemed as properly filed on 17th October, 2019.
4) Appellant’s Reply to 1st and 3rd Respondents Brief of Argument settled by Prince Abioye Oloyede-Asanike filed on 23rd March, 2020 was deemed as properly filed on 21st October, 2020.
5) Reply to 2nd Respondent’s Brief of Argument settled by Prince Abioye Oloyede-Asanike filed on 27th February, 2019 was deemed as properly filed on 21st October, 2020.

On the 21st of October, 2020 when this appeal came up for hearing, the Appellant, Prince Abioye Oloyede-Asanike

appeared in person. He adopted his Brief of Argument as well as the Reply to 1st and 3rd Respondents Brief of Argument and Reply to 2nd Respondents Brief of Argument as his arguments in this appeal and urged us to allow same.

Learned Counsel to the 1st and 3rd Respondents, Laolu Oyelakin Esq., adopted the 1st and 3rd Respondents Brief of Argument and the Notice of Intention that the Appeal be affirmed on other grounds and urged us to dismiss the appeal.

For his part, learned counsel to the 2nd Respondent Oluseye Chukwura adopted the 2nd Respondents Brief of Argument as his oral submission and also urged us to dismiss this appeal.

The following issues were formulated for determination of this appeal on behalf of the Appellant:
1) Whether the learned trial judge was right when he claimed that the Claimant’s claim is for declaration of title under the Customary Law.
2) Whether by the preponderance of evidence proffered before the honourable Court, the Claimant is not entitled to the declaration of Statutory right of Occupancy sought from the honourable Court.

The following issues were formulated by learned counsel to the

1st and 3rd Respondents on their behalf:
i) Whether the lower Court was right not to have considered the Appellant’s claim for a declaration of title for a Statutory Right of Occupancy in view of the Appellant’s pleading in paragraph 4 of the Further Further Amended Statement of Claim.
ii) Whether the trial judge was right in holding that this action is not statute barred.
iii) Whether the lower Court ought not to have availed the 1st and 3rd Respondents equitable defence of laches, acquiescence, standby, long possession, estoppel by conduct and negligence.
iv) Whether the trial judge was right for not considering the evidence of the 1st and 3rd Defendants that the description of the parcel of land contradicts the plan.
v) Whether the trial judge was right for not considering the evidence of the 1st and 3rd Defendants that the description of the parcel of land contradicts the plan.

Learned Counsel to the 2nd Respondent adopted the two issues formulated on behalf of the Appellant and argued them in the 2nd Respondent’s Brief of Argument. He urged us to dismiss the appeal.

The Appellant in his Reply

Brief to the 1st and 3rd Respondents’ Brief of Argument raised a preliminary issue. He vehemently opposed the Notice to affirm the judgment on other grounds filed on behalf of the 1st and 3rd Respondents on the ground that it is grossly incompetent and more of a cross appeal than a Respondents’ Notice. He argued that the Respondents by the Notice seek to set aside the decision of the trial Court that is not in their favour which is not the purpose of such notice. He therefore urged us to strike out the Notice and all issues formulated and/or argued thereon and relied on the cases of UNITED BANK FOR AFRICA VS. CORPORATE AFFAIRS COMMISSION & ORS. (2016) LPELR – 40569 AND BOB – MANUEL VS. BRIGGS (2003) LPELR 787 to support his position.

(2010) 4 NWLR (PT. 1185) 561; ZAKIRAI VS. MUHAMMAD (2017) 17 NWLR (PT. 1594) 181 AND FHA VS. INNOCENT (2018) LPELR 46955.

A Respondents Notice of Intention to contend that the decision of the lower Court be affirmed on other grounds is governed by the provisions of Order 9 of the Rules of this Court. Order 9 Rule 2 (supra) provides thus:
“A Respondent who desires to contend on appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by that Court, must give notice to that effect specifying the grounds of that contention.”
A Respondent’s Notice presupposes that the judgment of the lower Court appealed against is perfectly right having regard to the oral and documentary evidence adduced and proffered before it by the parties, but that the reason given by the Court in its judgment was wrong. In other words, the Respondent in the notice acknowledges that the lower Court came to the right conclusion but for the wrong reason. A Respondent’s notice must be limited to points which must have arisen in the appeal. Where a Respondent desires a reversal of any

conclusion of fact in the judgment or any important finding therein, he would be required to file a cross appeal. See OGUMA VS. INTERNATIONAL BANK FOR WEST AFRICA LIMITED (1988) 1 NWLR (PT. 73) 658; NSIRIM VS. AMADI (2016) 5 NWLR (PT. 1504) 42; ANYADUBA VS. NIGERIAN RENOWNED TRADING CO. LTD. (1990) 1 NWLR (PT. 127) 397.
In TOUTON S.A. VS. GRIMALDI COMPAGNIA DI NAVIGA ZION S.P.A. (2011) 4 NWLR (PT. 1236) PG. 1 AT 24 PARAS B – C, Okoro JCA held as follows:
“In a respondent’s notice, a respondent acknowledges that the lower Court came to the right conclusion but for the wrong reason, and therefore seek an affirmation of the judgment or decision of the lower Court on grounds other than those relied upon by the lower Court. It is not an opportunity to raise fresh issues which had not come up for consideration before the lower Court. See DELTA STATE GOVERNMENT VS. DR. EFFIONG JOHNSON OKON & ANOR. (2002) 2 NWLR (PT. 752) 655.”
In DR. MIKE ONUGH & ANOR. VS. BARR. MRS NJIDOKA EZEIGWE & ORS (2011) 13 NWLR (PT. 1263) 184 AT 199 A – E per Tsamiya JCA who said:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I have carefully examined the Respondents Notice and hold that it is the direct opposite of its essence which is to support the judgment of the lower Court appealed against. Ground 1 of the Respondents Notice and Issue Two (2) distilled therefrom are aimed at reversing the finding made by the lower Court that the action before it is not statute barred. A respondent’s Notice is certainly not appropriate for this stand of the 1st and 3rd Respondents.
Ground 3 of the Respondents Notice and Issue 4 distilled from it are geared towards reversing an important finding made by the lower Court. The complaint herein essentially has to do with evaluation of evidence made by the lower Court. This also is not the purpose of a Respondent’s Notice.
The Respondent’s Notice filed by the 1st and 3rd Respondents in the main seek to reverse the findings of the lower Court. I therefore have no hesitation in coming to the conclusion that the 1st and 3rd Respondents Notice is grossly incompetent. It follows that issues 2, 3 and 4 distilled from the incompetent grounds in the Respondents

Notice are also incompetent and are accordingly struck out.

I have critically examined the issues formulated for determination on behalf of parties and I am of the firm view that the two (2) issues formulated on behalf of the Appellant with some slight modification would suffice. They are:
1) Whether the trial Court was right when it held that the Appellant’s claim is for declaration of title to land under Customary Law.
2) Whether the trial Court evaluated the evidence of parties as required by law before dismissing the Appellant’s suit.

ISSUE ONE (1)
Whether the trial Court was right when it held that the Appellant’s claim is for declaration of title to land under Customary Law.

Learned Counsel to the Appellant in arguing this issue submitted that a critical analysis of paragraph 21 of the Further Further Amended Statement of Claim shows that the Appellant’s claim during trial was for Statutory and not Customary Declaration of Occupancy. That paragraphs 4 and 5 of the Further Further Amended Statement of Claim and Plan when read alongside paragraph 3 of the 1st and 3rd Respondents

Amended Statement of Defence also show that neither the Appellant nor Respondents claimed to have purchased the land in dispute under Native Law and Custom. He pointed out that none of the Respondents specifically denied the Appellant’s pleadings. He relied on the case of JACOBSON ENGINEER LTD. VS. UBA LTD. (1993) 3 NWLR (PT. 283) PG. 586. He further referred us to the case of ADESANYA VS. OTUEWU (1993) 1 SCNJ 77 AT 94 AND ABOYADE COLE VS. S. R. FOLAMI (1956) 1 NSCC PG. 59 AT 61 PARA 50 to support his argument that the making and giving of receipts are unknown to Native Law and Custom. He emphasised that the Appellant did not buy the land under Native Law and Custom and that the receipt of purchase (Exhibit B) changed the status of the transaction from Customary to Statutory. He submitted further that the judgment of the trial Court did not demonstrate a dispassionate consideration of the issues raised by the Appellant let alone reflect the result of such an exercise. He referred us to the evaluation of evidence done by the learned trial judge and cited the cases of POLYCARP OJOGBUE & ANOR. VS. AJIE NNUBIA & 4 ORS (1972) 7 NSCC PG. 478

AT 482 AND OMOREGBE v. LAWANI (1980) 3 – 4 SC 108 to support his position.

Arguing per contra, 1st and 3rd Respondents’ Counsel submitted that a critical look at paragraph 4 of the Further Further Amended Statement of Claim clearly reveal that the Appellant purchased the disputed land under Native Law and Custom. He referred us to the cases of COLE VS. FOLAMI (1956) 1 FSC 66 (1956) SCNLR 180; AKINGBADE VS ELEMOSHO (1964) 1 ALL NLR 154; AJIBADE VS. PEDRO (1992) 6 SCNJ (PT. 144) (1992) 5 NWLR (PT. 241) 257 to support his argument that payment of full purchase and delivery of parcel of land to the purchaser by the vendor in the presence of witnesses are conditions precedent to a valid sale under native law and custom.

He stressed the point that there is nothing on record to show that the Appellant fulfilled the conditions precedent for a valid sale under native law and custom and the effect in law is that the Appellant did not gain lawful possession. He cited the case of ONANUBI VS. OGUNFOLU (2009) ALL FWLR (PT. 496) PG. 1926 in support. He further

emphasised that the import of paragraph 4 of the Further Further Amended Statement of Claim is that the Appellant intended to make a case for customary and not Statutory Right of Occupancy and urged us to hold that the trial Court was right when it dismissed the Appellant’s claim for failure to make a case for Customary Right of Occupancy.

Learned counsel to the 1st and 3rd Respondents finally urged us not to dispute the findings of the trial Judge who properly evaluated the evidence before him. He referred us to the cases of OGBODO VS. OGBA (1987) 1 ALL NLR (PT. 1) 157 AT 162-163, (1987) 2 NWLR (PT. 54); OGBECHIE VS. ONOCHIE 1 NWLR (PT. 70) 370 AT 578; ARABE VS. ASANLU (1980) 5-7 SC 78; A.C.E. JIMONA LTD VS. N.E.C. (1976) 1 ALL NLR 122; ATTAH VS. NNACHO (1965) NMLR 28 and UMESIE VS. ONUAGULUCHI (1995) 12 SCNJ to support his position and urged us to affirm the judgment of the lower Court.

For the 2nd Respondent, learned counsel submitted that parties are bound by their pleadings and that the effect of paragraph 4 of the Further Further Amended Statement of Claim is that the Appellant bought the disputed land under Native Law and Custom.

He submitted further that the Appellant was bound by the case he put forward in his pleadings. He cited the cases of YALAJU AMAYE VS. A.R.E.C. LTD (1990) 4 NWLR (PT. 145) 422 AT 443; GWANI VS. EBULE (1990) 5 NWLR (PT. 149) 201 AT 215 and ACB LTD. VS. A.G. NORTHERN NIGERIA (1967) NMLR 231 to support his point.

He submitted further that the Appellant failed to prove his entitlement to the disputed land under native law and custom and that the trial Court was right to so hold.

He finally submitted that where the pleadings of the Appellant and the evidence adduced by the Appellant are juxtaposed no reasonable Tribunal will find in his favour. He urged us to resolve this issue against the Appellant.

In his reply to the 1st and 3rd Respondents’ Brief of Argument, the Appellant cited the cases of JIMOH ATANDA VS. COMMISSIONER FOR LANDS AND HOUSING KWARA STATE & ORS. (2017) LPELR-42346 and INOK EDIM MOSES VS. MR. NATHANIEL ONU & ORS. (2013) LPELR 203488 to submit that the Appellant’s claim before the lower Court is for statutory declaration of title to land and not customary claim of title.

In his reply to the 2nd Respondent’s Brief of Argument, the Appellant contended that under native law and custom it is necessary to adduce evidence of persons who were present when the purchase price was paid and when the land was handed over to the purchaser. He cited the case of SHETTIMA SULEIMAN VS. ABUBAKAR USMAN LAGA (2013) LPELR-23223 in support.

Furthermore, to succeed in a claim for declaration of title to land, the claimant must establish ownership by one or more of the following modes:
(1) By traditional evidence.

It is also important for the claimant to carefully and clearly plead the nature of the sale transaction to indicate what law is applicable whether it is customary law or under the statute. See FOLARIN VS. DUROJAIYE (1988) 1 NWLR (PT. 70) 351; OKELOLA VS. ADELEKE (2004) 13 NWLR (PT. 890) 307; OBINECHE VS. AKUSOBI (2010) 12 NWLR (PT. 1208) 383.
In ADESANYA VS. ADERONMU (2000) 9 NWLR (PT. 672) 370 AT 382, PARAS G-H, IGUH JSC held as follows:
“In the first place, the law is well settled that to succeed in a claim for declaration of title to land, the Court must be satisfied as to:

The precise nature of the title claimed, that is to say, whether it is titled by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise and;
ii. Evidence establishing title of the nature claimed. See EMEGWARA VS. NWAIMO & ORS (1953) 14 WACA 347.”

The settled position of the law is that in Nigeria there are two clear and distinct ways in which land may be validly sold, acquired and legally transferred. It is either under the customary law or under the received English Law.
The requirements for a valid sale under native law and custom are certain and adequately explained by the Supreme Court in the case of ATANDA VS. HON. COMMISSIONER FOR LANDS AND HOUSING KWARA STATE AND ANOR (2017) LPELR-42346, when His Lordship Sanusi JSC at pages 18-20 Paragraphs F-A held thus:
“It is trite law that for a sale of land under Native or Customary Law to be valid, the following requirements must be met. The requirements are:
1) There must be payment of money or agreed consideration.
2) The transaction must be witnessed by witnesses.

3) The actual handing over of the land must be done in the presence of the same witnesses.”
See ADEDIJI VS. OLOSO (2007) SCNJ 411; FOLARIN VS. DUROJAIYE (1988) 1 NWLR (PT. 70) 351; COLE VS. FOLAMI (1956) 1 FSC 66 AT 69.
In fact in ADEDIJI VS. OLOSO (supra), this Court at page 416 had this to say per Oguntade JSC:
“The trial Court was clearly wrong in granting to 2nd defendant a reprieve for the consequences at law attending upon his failure to plead and testify as to the name of persons who witnessed the sale transaction and the handing over of the land. Even if such witnesses were dead and could not be called as witnesses, the obligation to plead their names and testify concerning them was not removed. It was the particularity with which their names and description were pleaded and given in evidence, that would assist the Court in determining whether the evidence was credible. It seems to me that in the circumstances, the inevitable conclusion to be arrived at is that the 2nd defendant failed to prove that the land was sold to his father under customary law.”
See also CLAY INDUSTRIES (NIG.) LTD VS. AINA & ORS (1997) LPELR – 871 (SC);

AKINGBADE VS. ELEMOSHO (1964) LPELR – 25225 (SC); MAIGADAJE VS. SULEI & ORS (2018) LPELR – 46504 (CA); AGBOOLA VS. UBA PLC & ORS (2011) LPELR – 9353 (SC); EGONU VS. EGONU (1978) 11-12 SC 111; OKONKWO OKOLO (1988) 2 NWLR (PT. 79) 632; NZEKWU VS. NZEKWU (1989) 2 NWLR (PT. 104) 373 AT 409; NGENE VS. IGBO (1991) 7 NWLR (PT. 203) 358; AKPADIAHA VS. OWO (2000) 8 NWLR (PT. 669) 439; MANYA VS. IDRIS (2001) 8 NWLR (PT. 716) 627 to mention just a few.”
The requirement for a valid transfer of legal title under the English law by purchase is that there must be payment of money accompanied by acknowledgment of receipt and execution of Deed of Conveyance in favour of the purchaser. See FOLARIN VS. DUROJAIYE (1988) 1 NWLR (PT. 70) PG.351; ERINOLA VS. OGUNYEBI (1965) NMLR 479 and AMINU VS. OGUNYEBI (2004) 10 NWLR (PT. 882) 457.
Now the question that arises and which begs for an answer is –
Whether the claimant acquired his title under the customary law or English Law?

Paragraph 4 of the Further Further Amended Statement of Claim filed on 26th February, 2013 at page

345 of the Record and Relief A thereof (See page 348 of the Record) are very germane in answering this question and for this reason, they are reproduced hereunder:
“4. The claimant sometimes between 1985 and 1986 bought 2 parcels of land totaling 56.381 acres from the Adeniji family of Alli Compound Opoyeosa Ibadan at a cost of N800.00 per acre and was issued with land purchase receipt and put in possession in the presence of witnesses. This receipt is hereby pleaded.
A. A declaration that the claimant is the person entitled to a statutory declaration of occupancy on all that piece and parcel of land situate, lying and being at Idi-Omo Area, Ibadan measuring approximately 12.245 acres more particularly shown in the plan No. ASR/Y86/450 prepared by Surveyor Oyetunde Bolarinwa dated 19th May 1986.”

The Appellant vide paragraph A of the reliefs claimed at the lower Court sought a statutory declaration of occupancy of the land in dispute. It is however evident from paragraph 4 quoted above that he purchased the land under native law and custom. That is the case disclosed by his pleading. He cannot go outside it.

It is trite that any evidence of fact not pleaded goes to no issue.
During the trial, the Appellant tendered Exhibit B (Land Agreement) dated 12th January, 1977 through one Oluseye Alao (PW2) – See pages 325-327 of the Record. I have gone through the record and note with particularity that there is no iota of evidence from the Appellant or any of his other seven (7) witnesses that the Adeniji family whom he claimed sold the land to him physically handed it over to him in the presence of witnesses. No name of any person present at the handing over was mentioned throughout the trial and no one testified that he witnessed the physical handing over of the land to the Appellant by the Adeniji family. I wish to further emphasise that in a claim of purchase of land under customary law, it is mandatory that a claimant must plead and prove the names of those who witnessed the transaction and the fact that the land was physically handed over to him in the presence of the same witnesses. It is worthy of note that none of the Appellant’s witnesses at the trial gave evidence that they observed the handing over of the land to him.

The evidence of the Appellant in paragraph 8 of his written statement on oath that he took possession of the land would not suffice.
It is on record that the Adeniji/Adenigi family denied selling any land to the Appellant. DW1 (Layide Adeniji) whose evidence is at pages 362-364 of the Record identified himself as the eldest and present Mogaji of the family. His evidence that his family sold the land in dispute to late Alhaji Ajigbotoso (1st Respondent’s father) and not the Appellant was not contradicted.
Undoubtedly, the Appellant’s relief A is not supported by pleaded facts. It is settled beyond peradventure that facts giving rise to the claim sought must be pleaded. In UNITY BANK PLC VS. OLUWAFEMI (2006) LPELR-9847, this Court per Alagoa JCA at pages 33-34 Paragraph A-D held thus:
“… Facts giving rise to the debt or claim sought to be set of, are such material facts and should have been fully pleaded by the Appellant in the statement of defence.”
I also wish to add that it is the facts pleaded in the statement of claim that

define entitlement to the reliefs claimed therein and not otherwise. See UMEANOZIE VS. FBN PLC (2016) LPELR-41038 (CA) and FARASCO (NIG) LTD & ANOR VS. P.Z. IND. PLC (2010) LPELR 4142.
It is my considered view and I so hold that the Appellant did not plead facts to support his claim for a Statutory Declaration of Occupancy. The relief ‘A’ sought by the Appellant in his Further Further Amended Statement of Claim has no root in the pleaded facts in his pleading. The facts pleaded do not support the relief. Relief A claimed has no leg to stand on. The trial Court was therefore right to have held as such.

My conclusion under this issue is that whichever way one looks at it, the inevitable conclusion is that the trial Court was right when it held that the Appellant’s claim is for declaration of title under customary law and that he failed to prove his title to the disputed land.
This issue is thus resolved against the Appellant and in favour of the Respondent.

ISSUE TWO
Whether the trial Court evaluated the evidence of parties as required by law before dismissing the Appellant’s suit.

In arguing this issue, learned counsel to the Appellant submitted that the trial Court omitted to evaluate the evidence of the witnesses that testified for him. He urged us to note in particular the evidence of CW1 (Moshood Ishola Sadiq) contained at pages 321-325 of the Record that part of the land in dispute was actually sold to them by late Alhaji Amusa Ajigbotosho and also the evidence that when the Appellant wrote to them that they were trespassing on his land, they took the letter to Alhaji Amusa Ajigbotosho who confirmed that he was the one who instructed the Appellant to write.

He submitted further that the trial Court was wrong when it held that the distinction in the family name Adeniji or Adenigi is one without a difference and of no moment because both the Appellant and the Respondents know the family they are referring to. That the Appellant joined issues with the 3rd Respondent on whether the family that sold the disputed land to the Appellant is Adeniji or Adenigi but the trial Court ignored it. He pointed out further that the trial Court admitted Exhibits H1 and H2 which are inadmissible

documents in evidence and also made findings of fact which are perverse and not supported by the evidence on record. He cited ADEPOJU AYANWALE & 3 ORS VS. BABALOLA ATANDA & ANOR (1988) 19 NSCC (PT. 1) PG. 10 to support his point and urged us to resolve the issue against the Respondents.

The 1st and 3rd Respondents did not address this issue as raised by the Appellant but learned counsel to the 2nd Respondent submitted in his response that there is no ground of appeal that complained about perversity of the findings of the trial Court. He cited ADELAJA VS. FANOIKI (1990) 2 NWLR (PT. 131) 137 AT 148; EGBE VS. ALHAJI (1990) 1 NWLR (PT 128) 546 AT 589-590; GENERAL OIL LTD VS. CHIEF OGUNYADE (1997) 4 NWLR (PT. 501) 613 AT 621 to support his argument that issues for determination in an appeal must of necessity be limited by and circumscribed within the grounds of appeal filed since they arise therefrom. He argued that the Appellant failed to demonstrate that the findings of fact of the trial Court is perverse, unreasonable, unsolved or that some substantial principle of law or procedure had been violated. He submitted further that

the Appellant failed to demonstrate how the findings of the trial Court occasioned a miscarriage of justice to him.

Learned counsel also contended that the root of title put up by the Appellant is wholly defective and that the 2nd Respondent’s legal interest in the land supersedes that of the Appellant. On a final note, he urged us to resolve this issue against the Appellant.

I have examined grounds two (2), three (3) and four (4) of the Notice of Appeal and hold that the present issue under consideration falls within the grounds of appeal filed and therefore hold that the cases of ADELAJA VS. FANOIKI (1990) 2 NWLR (PT. 131) 137 AT 148; EGBE VS. ALHAJI (1990) 1 NWLR (PT. 128) 546 AT 589-590; GENERAL OIL LTD. VS. CHIEF OGUNYADE (1997) 4 NWLR (PT. 501) 613 AT 621 cited and relied upon by learned counsel to the 2nd Respondent at paragraph 4.03 on pages 4 and 5 of his Brief of Argument do not avail them.

On the complaint of the Appellant that the findings of the learned trial Judge is perverse, it is my considered view that the Appellant failed to demonstrate how the findings of fact by the trial Court is perverse, unreasonable and

unsound. He also failed to state the principles of law or procedure that were violated or how such violation or perverse finding occasioned a miscarriage of justice to him.

On the argument of the Appellant that the trial Court omitted to evaluate the evidence of his witnesses, it is now settled upon an unbroken thread of judicial authorities that the law does not prescribe any specific or particular procedure or style that must be adopted or used by a trial Court or Tribunal in the discharge of its primary duty of assessment or evaluation of the evidence adduced before it and ascribing the deserved probative value thereto in order to arrive at its decision.
The manner, way, method, style or procedure for assessment of evidence by a trial Court or Tribunal is not rigid or fixed. It is entirely at its discretion which like all other judicial discretions should be exercised judicially and judiciously. See SOLOLA VS. THE STATE (2005) ALL FWLR (PT. 269) 1715 AT 1771, (2005) 5 SC (1) 135, IGAGO VS. THE STATE (1999) 14 NWLR (PT. 637) 1.
Acting judicially simply is the consideration of the interest of both sides in a case and weighing

them in line with established principles of law in order to arrive at a just decision.
To act judiciously is to proceed from sound judgment marked by discretion, wisdom and good sense. See ERONINI VS. IHEUKO (1989) 2 NWLR (PT. 101) 40 AT 60-61; ACB VS. NNAMANI (1991) 4 NWLR (PT. 786) and ENAKHIMION VS. EDO TRANSPORT SERVICES (2006) ALL FWLR (PT. 334) 7882.
Once it is evident from the record that a trial Court or Tribunal has evaluated the evidence on record in line with established principles of law and justice by placing it on the imaginary scale of justice, no matter the style, manner or procedure used, the evaluation is proper and this Court would have no justification to interfere with it. It does not matter if it would have used a different manner in the evaluation or assessment of the evidence. It is not the function of this Court to retry a case on the notes of evidence and make a practice of routinely setting aside the decision of a trial Court or Tribunal merely because a particular procedure which was otherwise proper and not another was used or adopted in the evaluation of the evidence. This Court can only

interfere where it is demonstrated that the trial Court wrongly assessed or evaluated the probative value of the disputed evidence. See ONIFADE VS. OLAYIWOLA (1990) 7 NWLR (PT. 161) 13; KALU VS. ODILI (1992) 5 NWLR (PT. 240) 130; LAYINKA VS. MAKINDE (2002) 10 NWLR (PT. 775) 358 375; JUSTICE PARTY VS. INEC (2006) ALL FWLR (PT. 339) 907.

I have critically examined the judgment of the lower Court contained at pages 423-439 of the record with the aim of finding out whether or not the evaluation of evidence carried out by it meet the required standard.

These are some of my findings:
The trial Judge at pages 423-424 of the record identified the claim of the Appellant. At pages 424-425, he summarized the position of parties, reviewed the evidence of the eight (8) Appellants witnesses as well as the five (5) witnesses called by the Respondents at pages 425-429 of the Record. He reviewed the final written addresses filed on behalf of the parties at pages 429-433 and went on to formulate and determine the two (2) issues identified for determination at pages 433-439.

He also addressed the issue of what the Appellant needed to do to

establish his title to land, modes of proving title or ownership under customary law; requirements of a valid sale of land under native law and custom, consequence of the failure of the Appellant to meet the requirements, probative value of the evidence of CW6 and the identity of the family that owned the land originally.

Flowing from all of the above, I am unable to agree with the Appellant that the trial Court omitted to evaluate the evidence presented by him and his witnesses at the trial before dismissing his suit. The Appellant failed to show that the evaluation of evidence carried out by the trial Court is perverse and/or occasioned a miscarriage of justice to him.

In view of all the foregoing, the inevitable conclusion is to again resolve this second issue against the Appellant and I so do.

The two issues identified for determination in this appeal are thus resolved against the Appellant and in favour of the Respondents. I have earlier on dealt with the “Notice of Intention to contend that judgment should be affirmed on grounds other than those relied upon by the Court below” filed on behalf of the 1st

and 3rd Respondents on the 16th October, 2019. I have found the notice incompetent and afortiori the issues formulated thereon. The Notice is accordingly struck out.

Having resolved the two issues against the Appellant, it follows that this appeal lacks merit and should be dismissed. This appeal is accordingly dismissed. I affirm the judgment of the Oyo State High Court, sitting in Ibadan in SUIT NO. I/943/2009 delivered on the 27th of February, 2014. The Appellant shall pay N50,000 as costs to each of the Respondents.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading before now the draft of the Lead Judgment of my Learned brother FOLASADE AYODEJI OJO, J.C.A., just delivered and I agree with the reasons given as well as the conclusion that this Appeal lacks merit.

I will also emphasize that it is trite law that for a sale of land under native or customary law to be valid, the following requirements must be met. These are:-
(1) There must be payment of money or agreed consideration.
(2) The transaction must witnessed by witnesses
(3) The actual handing over of the land must be done in the

presence of same witnesses.
ADEDEJI VS. OLOSO (2007) SCNJ PAGE 411
FOLARIN VS. DUROJAIYE (1988) 1 NWLR PART 70 PAGE 351.

In view of the foregoing and for the fuller reasons so ably set out in the lead judgment, this Appeal in my view is unmeritorious and it is dismissed by me.
I abide by the consequential orders made in the said lead judgment including Order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother, Folasade Ayodeji Ojo, JCA.

It is apparent from a careful scrutiny of the pleadings and evidence on record, that the Claimants/Appellants predicated their claim in the Court below on a customary sale. The learned trial Judge was therefore right to so find. It is the law that, where a Plaintiff predicates his claim of title to land through customary sale, he has the burden to plead and adduce evidence on the following facts.
(a) that the purchase price was paid;
(b) that the transaction was concluded in the presence of witnesses; and
(c) that the purchaser was put into physical possession of the land through those witnesses.

Those essential requirements must be specifically pleaded and proved. Failure to plead and prove any of those facts by credible evidence would be fatal to the claim. See Bassil & Anor v. Fajebe & Anor. (2001) 11 NWLR (pt.725) 592; Orunengimo v. Egbegbe (2007) LPELR – 2779(SC) and Chief Bisi Adegunle v. The Governor of Lagos State & Ors (2019) LPELR-48013(CA).

In the instant case, the pleadings and evidence led by the Appellant in respect of the Claim was deficient. I therefore agree with my learned friend that the Appellants failed to proof their case to the satisfaction of the Court. The Appeal therefore lacks merit; and is hereby dismissed.
I abide by the consequential orders made by my learned brother.

Appearances:

Prince Abioye Oloyede-Asanike For Appellant(s)

Olaolu Oyelakin – for the 1st and 3rd Respondents
Olueye Chukwura – for the 2nd Respondent.For Respondent(s)