ASOROBI & ORS v. DADA & ANOR (2020)

ASOROBI & ORS v. DADA & ANOR

(2020)LCN/14621(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, September 15, 2020

CA/IB/169/2013

RATIO

PLEADINGS: GROUNDS OF APPEAL

Issues for determination reduce the grounds of appeal from which they are distilled into compact formulations; Sanusi v. Ayoola (1992) 11/12 SCNJ 142. Thus, a number of grounds could, where appropriate, be formulated into a single issue running through them. There need not be a separate issue formulated for each ground of appeal. But it is patently undesirable to split the issue in a ground of appeal; per Karibi Whyte, JSC in Labiyi v. Anretiola (1992) LPELR-1730 (SC). Therefore, formulating issues for determination in excess of the grounds of appeal or formulating more than one issue from a single ground of appeal is not in line with the principles governing the formulation of issues for determination in an appeal. And, it makes no difference that other grounds of appeal were involved; State v. Omoyele (2016) LPELR-40842(SC). It amounts to proliferation of issues, which is not acceptable; Agu v Ikewibe (1991) LPELR-253(SC); Nwankwo v Yar’Adua (2010) 12 NWLR (Pt.1209) 518 S.C.; Okwuagbala v Ikwueme (2010) 19 NWLR (PT 1226)54 S.C.; Okonobor v Edegbe & Sons Transport Co. Ltd (2010) LPELR-2488(SC), (2010)17 NWLR (PT 1221)181; Society BIC LA. & Ors v Charzin Industries Ltd (2014) LPELR-22256(SC); Executive Governor, Nasarawa State & Anor v. Ukpo (2017) LPELR-42445(CA).
Both Issues formulated by the Appellants have admittedly run afoul of these established principles that govern brief writing. There are legion authorities that prescribe that the issues ought in this circumstance be struck out for being incompetent, as it is not the duty of the Court to make a choice for the appellant between the two issues allegedly framed from one ground of appeal; Society BIC LA. & Ors. v Charzin Industries Ltd (supra).
Mr. Adeoye for the Appellants has described their failing both as a misnomer and mistake of Counsel. Definitely, this error cannot be garbed a misnomer. A misnomer simply means “a mistake in naming a person, place or thing, esp. in a legal instrument” – see Black’s Law Dictionary, Ninth Edition at page 1090. A misnomer occurs when the correct person sues or is sued under a wrong name; Mespo J. Continental Limited v. Corona S-R Mbh & Company (The Owners Of “M. V. Concordia”) (2006) LPELR-1129(SC); APGA v. Ubah & Ors (2019) LPELR-48132(SC). The correct person who sued or has been sued but a mistake was made in stating the name, and, none of the parties to the suit was misled by the mistake. That is to say, the error is as to the wrong name of the party;Registered Trustees of the Airline Operators of Nig v. NAMA (2014) LPELR- 22372 (SC); A. B. Manu & Co. (Nig.) Ltd v. Costain (W.A.) Ltd (1994) LPELR-14550(CA). An amendment may be allowed in this circumstance to correct the error, in the interest of justice; Agbule v. Warn Refinery & Petrochemical Co Ltd (2012) LPELR-20625(SC); Maersk Line & Anor V. Addide Investments Ltd & Anor (2002) LPELR-1811(SC). This is by no means the case in this appeal.
The question now is whether the error ought to be excused on the ground that it was mistake of counsel for which the Appellants ought not to be punished. I am not mindful of the current stance of the law which is to do substantial justice devoid of undue adherence to technicalities, thereby, the fault, blunder or mistake of counsel, cannot be an obstacle to a hapless litigant in such a way as to deny him the right to ventilate or defend his case; Fajebe & Anor v. Opanuga (2019) LPELR-46348(SC); Ibodo & Ors v. Enarofia & Ors (1980) LPELR-1401(SC). However, this would be the stance of the law where there is clearly a blunder or mistake of counsel that may arise from procedural irregularities. Mistake of counsel would not be a redeeming consideration where the act in issue is the result of a legal step taken by counsel based on his professional competence. A legal practitioner conducting the prosecution or defence of a client in a matter has apparent authority to act as his client’s agent or mouthpiece, in the proceedings; Okonkwo & Ors v. Kpajie & Ors (1992) LPELR-2483(SC); Cappa & D’ Alberto Ltd v. Akintilo (2003) LPELR-829(SC); Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC). In Swifen v. Lord Chelmsford (1860) 5 H & N 890, cited with approval in Adewunmi v. Plastex Nigeria Limited (supra), (1986) LPELR-164(SC), it was held that counsel’s authority extends, when it is not expressly limited to the action and all matters incidental to it, and to the conduct of the trial. In other words, once a counsel is briefed and retained by a client, he exercises mastery over the conduct of the case, except his authority is expressly limited by the client Where his authority is not expressly limited, the sky is his limit, literally. He may undertake any course that in his opinion is in the best interest of his client. In exercising his professional duties, what counsel conducting the case owes his client is a duty to act with professional competence and in good faith.
The scope and amplitude of the authority of a legal practitioner in the course of performing his professional duties on behalf of his client, has been well articulated in a number of judicial pronouncements. I shall mention a few; Attorney General of the Federation v. A.I.C. Limited & Ors (1995) LPELR-629(SC); Afegbai v. A.G Edo State & Anor (2001) LPELR-193(SC); Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC). Therefore, a deliberate legal step taken by counsel in a matter cannot be viewed as mere mistake or blunder; Akanbi & Ors v. Alao & Anor (1989) LPELR-315(SC). ). Per ONYEKACHI AJA OTISI, J.C.A.

RATIO

PLEADINGS: AN ACTION FOR DECLARATION OF TITLE, THE DISPUTED LAND MUST BE CLEARLY DEFINITE AND DISCERNIBLE; FAILING WHICH THE CLAIMS TO TITLE OVER IT, AS WELL AS AN INJUNCTIVE ORDER RESTRAINING FURTHER TRESPASS THERETO, SHOULD BE DENIED.

It is trite that in an action for declaration of title, the disputed land must be clearly definite and discernible; failing which the claims to title over it, as well as an injunctive order restraining further trespass thereto, should be denied; Offodile v. Offodile & Ors (2019) LPELR-47851 (SC). In the instant case, the Appellants tendered through PW1, Survey Plan No LAY/644A+B/89/OG dated 19/12/1989, Exhibit A; while the Respondents in their Counterclaim claimed that they were entitled to the parcel of land delineated In Survey Plan NO LA/49/1946 dated 24/2/1946, but did not plead or tender the said Survey Plan. However, the parties were ad idem on the identity of the land in dispute. At the commencement of hearing, in response to the query from the trial Judge, Counsel to the respective parties agreed that the identity of the land was not in dispute. Rather, that the only dispute was with the ownership of the land; page 61 of the Record of Appeal. The identity of the disputed land is therefore not in issue in this appeal, for it was well known by the parties. It is the well established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju V. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. Established methods of proving title to land, as judicially articulated, have a foremost authority found in the case of Idundun v. Okumagba (1976) 9-10 SC 227 wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence.
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Soronnadi & Anor v. Durugo & Anor (2018) LPELR-46319(SC); Otukpo v. John & Anor (2012) LPELR-25053(SC); Irolo v. Uka (2002) 14 NWLR (PT. 786) 195; Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT. 7) 393, (1985) LPELR-1889(SC). A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT. 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT. 1) 126; Balogun v Akanji (1988)2 S. C. 199. Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land; Onwugbufor v. Okoye (1996)1 NWLR (PT 424) 252, (1996) LPELR2716(SC); Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT. 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S. C. 22; Echi v Nnamani (2000) 5 S. C. 62; Eze v Atasie (2000) 6 SC. (PT. 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989) LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S. C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment. The parties herein have both relied on traditional evidence. The settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims; See: Nruamah v Ebuzoeme (2013) LPELR-19771 (SC); Onwugbufor v Okoye (supra); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44 Once a party pleads and traces his root of title to a particular person, he must establish how that person came to have title invested on him. He must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land, more so when his title is challenged; Ogunleye v Oni (1990) 4 S.C. 130, (1990) LPELR-2342(SC); Osafile v Odi (1994) LPELR-2784(SC); Ngene v Igbo (supra). Once traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof. Therefore, where a Court finds evidence of traditional history to be cogent, neither contradictory nor in conflict or competition with that of the defendant, and accepts it, it would be sufficient to support a claim or declaration of title to land; Sogunro & Ors v. Yeku & Ors (2017) LPELR-41905(SC); Runsewe & Ors V. Odutola (1996) LPELR-2964(SC). On the other hand, where the traditional evidence of the plaintiff is inconclusive, or, as given by both parties, the traditional evidence is inconclusive or is in conflict, the trial Court is entitled to consider whether the plaintiff has established such numerous and positive acts of ownership within living memory sufficient to establish that he is the absolute and exclusive owner of the land in dispute; Alade v. Awo (1975) LPELR-400(SC); Balogun v. Akanji (1988) LPELR-720(SC), (1988) 2 S.C, 199; Mkpinang & Ors v. Ndem & Ors (2012) LPELR-15536(SC);. Faleye & Ors v. Dada & Ors (2016) LPELR-40297(SC). Per ONYEKACHI AJA OTISI, J.C.A.

RATIO

PLEADINGS: PLEADINGS DOES NOT AMOUNT TO EVIDENCE

It is trite law that pleadings can only be given life by evidence. Judicial pronouncements have made it abundantly clear that pleadings cannot constitute and does not tantamount to evidence; Ifeta v. Shell Petroleum Development Company of Nigeria Limited (2006) LPELR-1436(SC); Akinbade & Anor v. Babatunde & Ors (2017) LPELR-43463(SC). The Supreme Court, per lguh, JSC in the case of Unity Life & Fire Insur. Comp. Ltd v. Int’l Bank of West Africa Ltd (2001) LPELR-3412(SC), at page 28, articulated the position of the law on the need to give life to pleadings by evidence in this manner:
“The law is well settled that once pleadings have been settled and issues are joined, the duty of the Court is to proceed to trial on those issues as settled in the pleadings of the parties. Where, however, one party fails or refuses to submit the issues he has raised in his pleadings for trial and does not give or call evidence in support thereof, the trial Court, unless there are other legal reasons to the contrary may resolve such issues against such defaulting party. See Imana v. Robinson (1979) 3-4 SC451(1979) 12 NSCC 1 at 5.”
Therefore, where a party pleads facts but fails to give evidence on the facts, pleaded, the trial Court cannot act on those bare averments. The Appellants’ Counsel did not appear to take account of this position of the law in his postulations on the pleadings and evidence led by the Appellants. PW4 was the main witness that testified on the traditional history of the Appellants, as neither PW2 nor PW3 appeared to be in tune with the traditional history of the Appellants. But the testimony of PW4 did not give the details as pleaded.
It is trite that in a claim for title to land on which reliance is placed on traditional history, the evidence must condescend to details of that history. If I may reiterate, the settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims. The plaintiff must plead and testify to these details It is important to note that the claim for a declaratory relief, as sought by the Appellants, does not succeed even on the admission of the defendant but on the strength of the plaintiff’s case; Akinbade & Anor v Babatunde & Ors (supra). He must establish that he is entitled to his claims. Per ONYEKACHI AJA OTISI, J.C.A.

RATIO

PLEADINGS: CUSTOMARY TENANCY –POSSESSION, PERPETUITY AND TRUBUTE

Usually when land is granted to the stranger in such circumstance, a conditional grant is presumed. As long as the landowners accept or permit the use and occupation or possession of their land, not upon an absolute grant, nor for a temporary use as licensee, a customary tenancy is thereby impliedly created, whether or not precise terms of the tribute were spelt out; Makinde v Akinwale (2000) 1 S.C. 89), (2000) LPELR-1829(SC). The grantee becomes a customary tenant with full rights of possession which is exclusive against all, including the landlord, and subject to the good behaviour of the tenant, he may hold the land in perpetuity; Atolagbe v Shorun (1985) LPELR-592(SC); Salami v Lawal (2008) LPELR-2980(SC), (2008) 14 NWLR (PT. 1108) 546. The learned author, Hon Justice I.A. Umezurike (of blessed memory) in his book ABC of Contemporary Land Law in Nigeria (Revised and Enlarged Edition) at page 249 thereof defined a customary tenant as:
“…a grantee of land under customary law, which (land) he holds in perpetuity determinable only upon proof of bad behaviour against the grantor or his successors-in-title.”
The right of a customary tenant to remain on the land is perpetual if he is of good behaviour; Abioye v Yakubu (1991) 5 NWLR (PT. 190) 130, (1991) LPELR-43(SC), (1991) 6 SC 72; Ojomu v Ajao (1983) LPELR-2394(SC). That is to say, his interest in the land which he holds of his overlord is in perpetuity, if he remains of good behaviour. Otherwise, he may forfeit his holding on order of Court for forfeiture at the instance of the overlord; Ejeanalonye & Ors v Omabuike & Ors (1974) LPELR-1059(SC), (1974) 2 SC 27. In the absence of bad behaviour, a customary tenant enjoys security of tenure in perpetuity. His interest cannot be overreached by the overlord.
What may amount to bad behaviour by a customary tenant that can deny him perpetual enjoyment of the land may be enunciated as follows:
1. Denial of the title of the overlord in any circumstance; Abioye v. Yakubu (supra); Oniah v. Onyia (1989) 1 NWLR (PR 99) 514, (1989) LPELR-2677(SC); Salami v. Oke (1987) LPELR-2982(SC). Denial of the title of an overlord has been described as one of the greatest breaches that a customary tenant can commit.
2. Refusal to pay the traditional or customary tribute. Judicial pronouncements have established that the main feature of a customary tenancy is the payment of tribute to the overlord, which payment entitles the customary tenant to enjoy his holding in perpetuity, subject to good behaviour; Akinbade v Babatunde (2017) LPELR-43463(SC); Abioye v Yakubu (supra). Such tribute is paid directly to the overlord, not through a third party; Dashi v Satlong (2009) LPELR-929 (SC), (2009) 1-2 S.C. 5; (2009) 5 MWLR (PT. 1134) 281. The law also recognizes that there can be a customary tenancy without the payment of tributes but this must be proved by evidence; Akinbade & Anor v. Babatunde & Ors (supra); Makinde v Akinwale (2000) 1 S.C. 89), (2000) LPELR-1829(SC); Galadima v Kuku (2018) LPELR-43886(CA); Angough & Ors v. Uga & Anor (2018) LPELR-43889(CA).
3. Alienation of the land or portions of it without the consent of the overlord, A customary tenant has no right to alienate land granted to him; Akinlagun v Oshoboja (2006) LPELR-348(SC). Any such alienation by a customary tenant is null and void except the tenant is able to show that such alienation is permitted by the customary law of the particular community; Anyaduba & Anor v Nigerian Renowned Trading Company Ltd (1992) 6 SCNJ 204, (1992) LPELR-505(SC).
4. Use of the land for purposes other than that for which it was granted; Idih v Obaje (2010) LPELR- 3816(CA). Such unauthorized uses may include the tenant bringing in foreign idols, juju or voodoo on the land which is subject to customary tenancy.
5. Giving evidence in favour of opponents of the overlord in a litigation involving the land, or testifying against the overlord. A customary tenant is expected to identify in every way with their overlord in any tussle over ownership of the land.
The Appellants who were not the owners of the disputed land were on the land upon the grant by the Respondents, the adjudged owners. It is trite that mere possession of land as customary tenant however long, cannot mature to confer the rights of ownership; Onwuka v Ediala (1989) LPELR-2720(SC). Once a customary tenant not only turns around to dispute the ownership of the title holder, his overlord, but also goes out of his way to claim title to the land, he forfeits his rights as a tenant and his possession thereto; Ogun v Akinyelu (2004) LPELR-2319(SC).
Having directly challenged the radical title of the Respondents, who were their overlords by setting up a rival title in themselves, the Appellants by their impertinent action were liable to forfeiture of the land in dispute, as counterclaimed by the Respondents; Oniah v Onyia (supra); Salami v Oke (1987) LPELR-2982(SC); Bamgbegbin v Oriare (2009) LPELR-733(SC). Per ONYEKACHI AJA OTISI, J.C.A.

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

CHIEF SAMUEL OLATUNJI ASOROBI 2. CHIEF MICHAEL ASOROBI 3. MR BABATUNDE ASOROBI (For Themselves And As Representatives Of The Family Of Late Chief Moses A. Asorobi Of Isunba Compound, Itele) APPELANT(S)

And

1. CHIEF TAOREED DADA 2. ALHAJI MONSURU YUSUF RESPONDENT(S)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the judgment of the High Court of Ogun State sitting at Abeokuta Coram P.A. Onamade, J., delivered on January 31, 2012 in which the claims of the Appellants were dismissed and the counterclaim of the Respondents was granted.

The facts leading to this appeal may be summarized thus: The land in dispute in this case is a piece of land situate at Itele via Otta, which the Appellants, as plaintiffs before the trial Court, represented in Survey Plan No. LAY/644/A+B/89/OG dated 19/12/1989. The identity of the said land was not in dispute. The Appellants averred that they were the descendants of Ogungbemi Alagbeji who founded Itele Village over 400 years ago. Ogungbemi Alagbeji and his two children, namely: Aro and Olaforikanre, migrated from Ile-Ife, with an entourage, and settled at the place now called as Itele. Olaforikanre had five children, while Aro had six children. One of the children of Aro was Isumba, who was the great-grand- father of the Appellants. The Appellants’ late father was Moses Akanbi Asoro, from who the Appellants averred that they

inherited the land in dispute. It was their case that their said late father, Chief Moses Akanbi Asoro, was one of the people of Itele that instituted Suit No. 17/43 against one D. D. Olukogbon who had laid claim to all the parcels of land in Itele. In their account, one Alimi Akapo and Taiwo Owotolu were appointed by the people of Itele to represent them against D. D. Olukogbon. But that the Respondents, through their privy, one Ifagbamila, now deceased, did not take part in the action jointly taken by the Itele people against D.D. Olukogbon. The Appellants, alleging that they were entitled to the certificate of occupancy over the land in dispute, by Amended Writ of Summons, sought the following reliefs:
a. A Declaration that the Plaintiffs are the person entitled to the statutory right of occupancy and/or customary right of occupancy in respect of the piece of land situate, lying and being at Itele via Otta and more particularly delineated on survey plan No. LAY/644/A+B/89/OG drawn by licensed Surveyor L.A., Yakubu dated 19th December, 1989.
b. N200,000.00 for trespasses committed by the Defendant on the said land.
c. An Order of perpetual

injunction restraining the Defendant, his agents, servant, assigns and or privies from committing an act of trespass on the said parcel of land described in relief one above.

The Respondents, in response, averred that their ancestor, Adogun Atele was the founder and first settler on Itele land. Adogun Atele was said to have migrated from Benin several years ago, when the Ifa Oracle directed him to move far away from Benin before he could have children. Adogun Atele, who was a hunter and blacksmith, settled at Itele, where he begat four children; namely: Imidawo, Osa, Ogunrombi and Alagbeji. Adogun Atele’s settlement became known as Itele, meaning a place where Ele (cutlasses) are sold. The Respondents averred that Adogun Atele’s descendants have consistently instituted and defended actions in protection of their family interest in Itele land, from 1920 to date, one of which was Suit No. 17/43, instituted by Alimi Akapo and Taiwo Owotolu, who were descendants of Adogun Atele family, in order to protect and recover their family land from D.D. Olukogbon, a Customary tenant of their family, who turned round to claim ownership of the Land.

This is the same action the Appellants relied on. The Respondents therefore counterclaimed against the Appellants as follows: –
(a) A DECLARATION that the Adogun Atele family of Itele are the persons entitled to the Statutory Right of Occupancy of all that piece or parcel of land situate, lying and being at Itele, via Ota which is more particularly described and delineated on Survey Plan No. LA/49/1946 drawn by Akande and dated 24/2/46.
(b) A DECLARATION that the 1st, 2nd and 3rd Plaintiffs not being members of the Adogun Atele Family of Itele are not entitled to any benefit or interest in the family land or at all.
(c) A DECLARATION that the Plaintiffs have forfeited their right to the land in dispute.
(d) The sum of N750,000.00k as special damages being 50% of the Solicitors fees for defending this action, which money would not have been incurred but for the wrongful action of the Plaintiffs.
(e) PERPETUAL INJUNCTION restraining the 1st, 2nd and 3rd Plaintiffs, their servants, agents or privies or howsoever described from committing any further act of trespass on the Adogun Atele family land at Itele of which the Defendants are the current Heads of family.

At the conclusion of hearing, the trial Court dismissed the claims of the Appellants and found in favour of the Respondents on their counterclaim. Dissatisfied with the decision of the lower Court, the Appellants lodged an appeal by Notice of Appeal filed on 27/4/2012. An Amended Notice of Appeal was filed on 7/6/2018 but deemed properly filed and served on 21/11/2018 on ten grounds of appeal.

The parties filed Briefs of Argument, pursuant to the Rules of this Court. The Appellants’ Brief was filed on 29/7/2019 but deemed properly filed and served on 30/7/2019. The Respondents’ Brief, in which a Preliminary Objection was also argued, was filed on 27/8/2019. Appellants filed a Reply Brief on 25/9/2019. At the hearing of the appeal on 20/7/2020, the Briefs were respectively adopted by Oluwaremi Adeoye, Esq., for the Appellants, and, by I.O. Balogun, Esq., for the Respondents Mr. Adeoye urged the Court to allow the appeal and set aside the judgment of the lower Court in its entirety, while Mr. Balogun urged the Court to dismiss the appeal and affirm the judgment of the lower Court. The Preliminary Objection shall first be considered.

Preliminary Objection.
Out of ten grounds of appeal, the Appellants had distilled two issues for determination as follows:
a. Whether the Lower Court properly and rightly considered and evaluated the evidence placed before ft before reaching its final decision (Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9)
b. Whether the decision of the lower Court in refusing the appellants’ claims and granting the counter – claim of the respondents is not liable to be set aside (Ground 4, 6, 7, 9, 10).

The Respondents argued their preliminary objection on the following grounds:
(a) While more than ONE Ground of Appeal can be Covered by ONE ISSUE.
(b) The same Ground of Appeal cannot be covered by two issues.
(c) Grounds 4, 6, 7 and 9 covered by Issue A are equally covered by Issue B, among others.
(d) For the above reasons therefore, this Appeal is incompetent and liable to be dismissed.

In response to the preliminary objection, Mr. Adeoye for the Appellants in the Reply Brief argued that Issue b of the issues for determination raised in the Appellants’ Brief of Argument flows from ground 10 of the Amended

Notice of Appeal, and that Grounds 4, 6, 7, 9 mentioned under the said issue was a misnomer and a mistake on the part of the counsel. Mr. Adeoye further argued that although proliferation of issues is frowned at by the Court, the litigant is often spared and will not suffer or have his appeal struck out on account of his counsel’s misdeed. Reliance was placed on Adeloye v. Olona Motors (Nig.) Ltd. (2001) 16 NWLR 10-11, Pg. 135; Momodu v. Momoh (1991)1 NWLR (Pt. 169) 608; Achiakpa V. Nduka (2001) 14 NWLR (Pt. 734) 623; Nteogwuile v. Otuo (2001)16 NWLR (Pt. 738) 58.

It was further submitted that this Court was not bound by the issues formulated by the Appellants but had powers to reframe any issue which was formulated in the Appellants’ brief. The Court would usually embark on this option for the purpose of clarity and precision when it observes that the issue, which the parties distilled, are clumsy, imprecise or are proliferated, citing the case of Ejike Ume v. Nigerian Renowned Trading Co. Ltd (2002) 4. C.A. 8. That this Court is a Court of substantial justice that does not act with strict adherence to technicalities, and that the error or

mistake of a Counsel should not be visited on the Appellants by striking out the appeal in the circumstance. The Court was urged to discountenance the preliminary objection.

Resolution
From the response of the Appellants’ Counsel, it is clear that he has conceded the fact that the issues have largely been distilled from the same grounds of appeal. This is a fundamental error.
Issues for determination reduce the grounds of appeal from which they are distilled into compact formulations; Sanusi v. Ayoola (1992) 11/12 SCNJ 142. Thus, a number of grounds could, where appropriate, be formulated into a single issue running through them. There need not be a separate issue formulated for each ground of appeal. But it is patently undesirable to split the issue in a ground of appeal; per Karibi Whyte, JSC in Labiyi v. Anretiola (1992) LPELR-1730 (SC). Therefore, formulating issues for determination in excess of the grounds of appeal or formulating more than one issue from a single ground of appeal is not in line with the principles governing the formulation of issues for determination in an appeal. And, it makes no difference that other grounds of

appeal were involved; State v. Omoyele (2016) LPELR-40842(SC). It amounts to proliferation of issues, which is not acceptable; Agu v Ikewibe (1991) LPELR-253(SC); Nwankwo v Yar’Adua (2010) 12 NWLR (Pt.1209) 518 S.C.; Okwuagbala v Ikwueme (2010) 19 NWLR (PT 1226)54 S.C.; Okonobor v Edegbe & Sons Transport Co. Ltd (2010) LPELR-2488(SC), (2010)17 NWLR (PT 1221)181; Society BIC LA. & Ors v Charzin Industries Ltd (2014) LPELR-22256(SC); Executive Governor, Nasarawa State & Anor v. Ukpo (2017) LPELR-42445(CA).
Both Issues formulated by the Appellants have admittedly run afoul of these established principles that govern brief writing. There are legion authorities that prescribe that the issues ought in this circumstance be struck out for being incompetent, as it is not the duty of the Court to make a choice for the appellant between the two issues allegedly framed from one ground of appeal; Society BIC LA. & Ors. v Charzin Industries Ltd (supra).
Mr. Adeoye for the Appellants has described their failing both as a misnomer and mistake of Counsel. Definitely, this error cannot be garbed a misnomer. A misnomer simply means

“a mistake in naming a person, place or thing, esp. in a legal instrument” – see Black’s Law Dictionary, Ninth Edition at page 1090. A misnomer occurs when the correct person sues or is sued under a wrong name; Mespo J. Continental Limited v. Corona S-R Mbh & Company (The Owners Of “M. V. Concordia”) (2006) LPELR-1129(SC); APGA v. Ubah & Ors (2019) LPELR-48132(SC). The correct person who sued or has been sued but a mistake was made in stating the name, and, none of the parties to the suit was misled by the mistake. That is to say, the error is as to the wrong name of the party;Registered Trustees of the Airline Operators of Nig v. NAMA (2014) LPELR- 22372 (SC); A. B. Manu & Co. (Nig.) Ltd v. Costain (W.A.) Ltd (1994) LPELR-14550(CA). An amendment may be allowed in this circumstance to correct the error, in the interest of justice; Agbule v. Warn Refinery & Petrochemical Co Ltd (2012) LPELR-20625(SC); Maersk Line & Anor V. Addide Investments Ltd & Anor (2002) LPELR-1811(SC). This is by no means the case in this appeal.
The question now is whether the error ought to be excused on the ground that it was mistake of

counsel for which the Appellants ought not to be punished. I am not mindful of the current stance of the law which is to do substantial justice devoid of undue adherence to technicalities, thereby, the fault, blunder or mistake of counsel, cannot be an obstacle to a hapless litigant in such a way as to deny him the right to ventilate or defend his case; Fajebe & Anor v. Opanuga (2019) LPELR-46348(SC); Ibodo & Ors v. Enarofia & Ors (1980) LPELR-1401(SC). However, this would be the stance of the law where there is clearly a blunder or mistake of counsel that may arise from procedural irregularities. Mistake of counsel would not be a redeeming consideration where the act in issue is the result of a legal step taken by counsel based on his professional competence. A legal practitioner conducting the prosecution or defence of a client in a matter has apparent authority to act as his client’s agent or mouthpiece, in the proceedings; Okonkwo & Ors v. Kpajie & Ors (1992) LPELR-2483(SC); Cappa & D’ Alberto Ltd v. Akintilo (2003) LPELR-829(SC); Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC).

In Swifen v. Lord Chelmsford (1860) 5 H & N 890, cited with approval in Adewunmi v. Plastex Nigeria Limited (supra), (1986) LPELR-164(SC), it was held that counsel’s authority extends, when it is not expressly limited to the action and all matters incidental to it, and to the conduct of the trial. In other words, once a counsel is briefed and retained by a client, he exercises mastery over the conduct of the case, except his authority is expressly limited by the client Where his authority is not expressly limited, the sky is his limit, literally. He may undertake any course that in his opinion is in the best interest of his client. In exercising his professional duties, what counsel conducting the case owes his client is a duty to act with professional competence and in good faith.
The scope and amplitude of the authority of a legal practitioner in the course of performing his professional duties on behalf of his client, has been well articulated in a number of judicial pronouncements. I shall mention a few; Attorney General of the Federation v. A.I.C. Limited & Ors (1995) LPELR-629(SC); Afegbai v. A.G Edo State & Anor (2001) LPELR-193(SC);

Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC). Therefore, a deliberate legal step taken by counsel in a matter cannot be viewed as mere mistake or blunder; Akanbi & Ors v. Alao & Anor (1989) LPELR-315(SC).
The Appellants’ Counsel acted within his professional competence in settling the Appellants’ Brief. If he has taken incorrect steps in that regard, those steps cannot be simply catalogued as mistake of counsel and its effect extenuated. Where it is shown that the error relates to the conduct of the case, the litigant is bound by the conduct of his case as it relates to the competence of his counsel. That is to say, if counsel, who is supposed to be professionally competent takes a step that belies this premise, then his client sinks with him.
The Issues framed by the Appellants for the determination of this appeal, which were distilled from the same grounds of appeal being incompetent, are hereby struck out. The Preliminary Objection therefore succeeds.

I note that the Respondents also adopted the two issues formulated by the Appellants. These are the Issues that have been adjudged to be incompetent and

struck out. The sum effect is that there are no competent issues for determination to ground this appeal. In this light, the appeal is liable to be struck out; and, is hereby struck out.

This ought to be the end of the road for this appeal. However, being a penultimate Court, and, in the event that the Apex Court takes a contrary view, I shall proceed to consider the merits of the appeal.

Substantive Appeal.
The Appellants distilled two Issues for determination of this appeal:
a. Whether the Lower Court properly and rightly considered and evaluated the evidence placed before it before reaching its final decision (Grounds 1, 2, 3, 4 5, 6, 7, 9, 10)
b. Whether the decision of the lower Court in refusing the appellants’ claims and granting the counter – claim of the respondents is not liable to be set aside (Ground 4, 6, 7, 9, 10).

I consider it expedient to consider and resolve both Issues together.

Issues (a) and(b)
The learned trial Judge had held, page 227 of the Record of Appeal:
“There is no doubt that the evidence of the 2nd and 3rd PWs of someone helping another on a farmland are far too little or

do not have weight at all to support ownership of land. The evidence of the 4th PW falls short in that he did not link his grandfather, Odunagoro Asorobi to Isunba whom he mentioned as one of the children of Aro. Who were the children of Isunba before getting to Odunagoro and before getting to himself? This is the lacunae in the evidence of the 4th PW.”

Counsel for the Appellants argued that the poser and the finding of the trial Court was contrary to the pleadings of the Appellants on which the evidence of PW4 was premised. Reference was made to the averments in paragraphs 10, 12, 13, 20, 21 and 22 of the Appellants’ 2nd Amended Statement of Claim wherein the Appellants had specifically traced their family tree, genealogy and history. It was submitted that there was no lacuna in the traditional evidence given by PW4 and that this finding of trial Judge was unfounded and contrary to the evidence adduced by the Appellants. The Appellants had called 4 witnesses in support of their case and tendered exhibits. Samuel Asorobi, the 1st Appellant, testified as PW4 in line with the 2nd Amended Statement of Claim. The Appellants traced their root of title to

Ogungbemi Alagbeji who was said to have founded Itele over four hundred years ago. PW4 testified that Ogunbgemi Alagbeji had two sons namely Olaforikanre and Aro whose families make up the two ruling houses of Itele. Olaforikanre had five children while Aro had six children PW4 gave the names of the children of Olaforikanre and Aro who constitute the eleven families of Itele out of which seven of them are land owning families in Itele. It was contended that PW2 and PW3 also testified in line with the Appellants’ pleadings, while on the other hand, DW1 and DW2 who testified for the Respondents, testified that the Appellants were their customary tenants at Itele and gave their version of their traditional history.

It was submitted that where the trial Court after testing the conflicting traditional evidence adduced by the parties against other evidence in the case and fails to find any of the two traditional histories probable, the Court will determine the case on the basis of numerous and positive acts of possession and ownership. Counsel posited that despite the conflicting traditional histories of the parties before the lower Court, the

Appellants’ traditional history was more probable when tested against Exhibit B1-B59, which were the proceedings and judgment in Suit No. 17/43 determined by the Ake Customary Court on 6/8/1946, relied on by both parties to support their respective cases.

The Appellants averred that the people of Itele, which included their father, instituted Suit No. 17/43, Exhibit B1 – B59, against one D.D. Olukogbon through Alimi Akapo and Taiwo Owotolu, who were appointed by the people of Itele to act on their behalf in a representative capacity. PW4 testified that the people of Itele including his father, Chief Moses Akanbi Asoro, contributed money to their representatives for their transportation and maintenance during the trial of Suit No. 17/43. The Respondents also relying on Suit No. 17/43, Exhibit B1-B59, in their Amended Statement of Defence and Counterclaim averred that Exhibit B1 – B59 was instituted in representative capacity but that the Appellants’ family was not part of the people represented and who obtained judgment in the suit. Counsel for the Appellants argued that B1 – B59 established that there are seven land owning families in Itele,

which included the Appellants’ Isunba family. The attention of the Court was drawn to the fact that the Respondents’ forebear, Adogun Atele, was not mentioned as a land-owning family in Itele and that Adogun Atele family was also not mentioned in Exhibit B1-B59.

It was contended that rather than give effect to the judgment in Suit No. 17/43, the lower Court choose parts of the said judgment to rely on. It was argued that if the trial Court had properly evaluated Exhibit B1- B59, it would have found which of the parties led a more probable traditional history on Itele, the judgment in Suit No. 17/43 being extant, having been confirmed by the Court of Appeal in Appeal in Suit No: 1/3A/1950. The Appellants were able to relate their traditional evidence to the Isunba land owing family. It was submitted that where a party is able to trace his title to the original owner whose title has been established, such traditional evidence or history in such circumstances is said to be conclusive, citing the case of Lasisi Morenikeji & Ors v. Laleke Adegbosin & Ors (2003) 6 SCM 41. The decision of this Court in Appeal No. CA/IB/307/2011: Chief Taoridi Dada v. Mr. Fatal Jimoh Asabiyi

was cited and relied on.

The learned trial Judge had also relied on Exhibit H1-H35, Suit No. HCT/137/92, holding that the defendants in Suit No. HCT/137/92 are privies to the plaintiffs now before me Court. But it was argued that the defendants therein (Jimoh Arowolo), were not from the same Isunba family of Itele as the Appellants. The subject matter of Suit No. HCT/137/92, Exhibit H1 – 35, was solely on a chieftaincy matter simplicita and had nothing to do with declaration of title to any land at Itele. There was no nexus between the present case and Suit No HCT/137/92.

Suit No. HCL/47/81, which was Exhibit J1 – J41, was between the Respondents’ family and the defendant, the families of D.D. Olukogbon, who was the defendant in Suit No. 17/43. It was argued that Suit No. HCL/47/81, Exhibit J1 – 41, and CA/I/130/90, Exhibit I1 – 62, were determined solely on Ijagunna land and not Isunba land, subject matter of this appeal. The claim of the plaintiff therein was dismissed but the defendants did not counter- claim against the plaintiff and thus, judgment was not given in their favour as concluded by the lower Court.

Counsel for the Appellants contended that the trial Court failed to evaluate the evidence adduced before it, which is its primary function. A trial Court must fully consider the totality of evidence placed before it, ascribe probative value to it, place same on the imaginary scale of Justice to determine the party in whose favour tilts. The trial Court then makes the necessary finding of fact flowing therefrom and apply the relevant Law to the findings before it can come to a logical conclusion. On this point, reliance was placed on judicial pronouncements in Agbonifo v. Aiwereoba (1988) 2 S.C (Pt 11) 64; Egonu v. Egonu (1978)11-12 SC III; Koleoso v. Omowood Industries Ltd & Anor (2017) LPELR-42425(CA); Nnadozie v. Mbagwu (2008) 3 NWLR (Pt. 1074) 363. Counsel for the Appellants submitted that the position of the law is that where a trial Court abdicates its duty of evaluation of evidence and the ascription of weight to the evidence, or when it is demonstrably shown that it had not done it properly or having done it, came to a wrong conclusion, or there are good and exceptional reasons to do so, an appellate Court is in a good position as the

trial Court to evaluate the evidence and ascribe probative value thereto before taking a decision, relying on the case of Akinola v. Oluwo (1962)1 SCNJ 352. Further reliance was placed on Abisi v. Ekwealor (1993) NWLR (Pt. 302) 643; Agbonifo v. Aiwereoba (1988)1 NWLR (Pt 170) 325 at 339; Mogaji v. Odofin (1978) 4 SC 1. Counsel described the decision of the lower Court as perverse, occasioning a miscarriage of justice. On what amounts to a perverse decision, reliance was placed on Odiba v. Azege (1998) 9 NWLR (Pt. 566)370. The findings of the lower Court being perverse, the Court was urged to interfere with it and set it aside.

It was further argued for the Appellants that a party asserting customary tenancy must specifically plead the existence of the incidence of customary tenancy and support same with credible evidence. Counsel submitted that the Respondents gave no evidence as to payment of tribute by the Appellants to the Respondents to warrant creation of a customary tenancy relationship between the Appellants and the Respondents. It was acknowledged that there are situations where tribute is not paid to the overlord and yet a customary tenancy

exists, such as where payment of tribute is overlooked by the landlord as a result of kindness and charity. In the instant case, no such evidence was given. The Respondents did not specifically plead the existence of the incidence of customary tenancy neither was any credible evidence led nor did any of their witnesses give evidence on the incidence of customary tenancy. Rather, the case of the Appellants at the lower Court was that they were the owners of the land in dispute from time immemorial having inherited same from their fore fathers and that the Respondents’ family does not exist in Itele. The following cases were also cited and relied on: Bassey v. Bassey (2009) 12 NWLR Part 1156; Makinde v. Akinwale (2000) 1 SC 89; and Lawani v. Adeniyi (1964) NSCC (Vol. 3)231 at 233.

It was submitted that customary tenancy flows from a person’s right of ownership. The Respondents, who did not establish the right of ownership over the disputed land, cannot be entitled to the claim for forfeiture, relying on Sarata Oseni v. Oba Yekini Elegushi (2005) 14 NWLR Pt. 945 at 348; Akinbade & Anor v. Babatunde & Ors (2017) LPELR – 43463 at 47.

It was further submitted that the Respondents who did not establish any incidence of customary tenancy or a superior title to the disputed land, were not entitled to the grant of a claim for forfeiture.

The Respondents sought a declaration that the Adogun Atele family of Itele were the persons entitled to statutory right of occupancy of all that piece or parcel of land situate, lying and being at Itele via Ota which is more particularly described and delineated in Survey Plan No. LA/49/1946 drawn by Akande dated 24/2/46. He who asserts must prove, citing Maihaja v Gaidam (2017) LPELR-42474 (SC). In civil cases, issues are settled on pleadings and Courts should not allow evidence to be given in respect of facts not pleaded. Facts not pleaded goes to no issue, relying on Aminu v. Hassan (2014) 57 (Pt 1) NSCQR 44 at 66; Anyafulu v. Meka (2014) 57 (Pt. 1) NSCQR 185 at 216. In this case, the said Survey Plan No. LA/49/1946 was not pleaded or tendered in evidence and no evidence whatsoever was given by the Respondents’ witnesses on the said Survey Plan. This failure left the trial Court with no evidence to prove the assertion of the Respondents to being entitled

to the declaration sought in their counter – claim. On the importance and function of pleadings, the cases cited and relied on included: Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360, (1985) 4 S.C. (Pt. 1)250 at 265; Sheka v. Bashari (2013) LPELR-21403 (CA); Skye Bank Plc v. Akinpelu (2010) 9 NWLR (Pt 1198)179; Baliol (Nig) Ltd v. Navcon (Nig) Ltd (2010) 16 NWLR (Pt 1220) 619. Counsel argued that the trial Judge was in grave error when he granted the counter-claim of the Respondents while relying on a survey plan totally different from the pleadings of the Respondents. The Court was urged to hold that there was no basis in law for the decision of the lower Court in the circumstance and set aside the judgment of the lower Court.

It was submitted the judgment of the lower Court on the counter claim was perverse as it ignored the facts, failed to evaluate the evidence and thereby occasioned a miscarriage of justice and ought to be set aside, citing Ukpong & Ors v. Cross Lines Ltd & Ors (2016) LPELR – 40131. The Court was urged to re-evaluate the evidence, the Appellants having shown that the decision of the lower Court was at variance with the evidence

led by parties at the lower Court and thereby wrong.

For the Respondents, it was submitted that the evidence for the Appellants was replete with contradictions. A claimant seeking declaration of title and relying on traditional evidence must give succinct account of themselves from the founder or first settler up to the claimant; citing Lawson v. Ajibulu, (1997) 6 NWLR (Pt 507) 14. The Appellants failed to do so. It was only PW4 that gave some evidence on traditional history, which, it was submitted, was a corrupt or plagiarized version of Respondents’ traditional history.

On the reliance of the Appellants on the judgment in Suit No 17/43, Exhibit B, on the ground that Alimi Akapo and Owotolu were appointed by the Itele People to represent them against D. D. Olukogbon and that their father was among the people of Itele who instructed Alimi Akapo and Owotolu to institute the action, it was argued that the question raised by this was whether the Appellants belonged to the same family as the Respondents, which was not the case. That being so, on what basis would the Appellants have instructed Alimi Akapo and Owotolu to institute the action?

Counsel for the Respondents rather argued that Alimi Akapo and Taiwo Owotolu were members of Adogun Atele Family, the Respondents’ family, who have consistently taken actions to protect their family land without let or hindrance; and without the assistance or support of group of persons, including the Appellants and their ancestors.

The Itele Community leaders led by Chief Raufu Ilo and Kafaru Arowolo had instituted action against the Adogun Atele Family in Suit No AB/67/76, Exhibits D and E, in respect of a Power of Attorney granted by Jimoh Akapo over Itele land in which they claimed that Itele land belonged to Itele Community. They lost the case. In holding against them, the Court, per Delano J (as he then was), clarified the position stating that judgment in an earlier action, Suit No AB/41/73 delivered on 20/11/1980, did not decide that Itele land belongs to Itele Community. It was posited that having failed in their bid to wrest Itele land from the Itele Family in that suit, the Appellants reverted back to claiming that they are the “Itele People” referred to in Suit No. 17/43, Exhibit ‘B’, through their membership of

Qgungbemi Alagbeji Descendants Family.

Counsel also referred to Suit No. HCT/137/92: Jimoh Oluwole Akapo v. Alhaji Jimoh Arowolo, Exhibit “H”, in which Jimoh Arowolo had claimed entitlement to the Onitele of Itele as a descendant of Ogungbemi Alagbeji, the first settler/founder of Itele. The trial Court therein rejected his traditional evidence, which both the Court of Appeal and Supreme Court affirmed in Appeal Nos. CA/I/160/95 and SC/200/2003. The trial Court and the two Appellate Courts held that Adogun Atele was the first settler on Itele land and not Ogungbemi Alagbeji. The following cases were also cited and relied on Jimo Arowolo v. Chief Sunday Edun Olowookere (2003) 8 NWLR (Pt. 823) 451; Gafaru Arowolo v. Chief Sunday Edun Olowookere (2011) 18 NWLR (Pt.1278) 280. Counsel argued that the evidence on record before this Court has clearly shown that the Appellants and their ancestors are customary tenants of the Adogun Atele family, and not the customary owners of Aiyetoro or Itele land.

It was contended that the Appellants herein and others who claimed to be members of Ogungbemi Alagbeji Descendants have not been able to show that

they are members of the same family. On the contrary, the evidence on record showed that they were different individuals from different families and different towns or background, namely: Moses Akanbi Asorobi father of the Appellants in this suit was from Oko Cmi near Ilasa; Kafaru Arowolo’s father was from Totowu near Igbesa; Saibu Olugbode is a grandson of Bamisebi from Ishaka, near Ijoko, Ota; Ayuba Dada is a grandson of Bamisebi from Ishaka; Bill Dabiri was from Ita Akanni in Lagos. He was the son of Jimoh Dabiri. Sunmonu Bamisebi’s father was born in Ishaka Village, near Ijoko, Ota. Notwithstanding, the Appellants, being descendants of Ogungbemi Alagbeji, were bound by the decision of this Court in Appeal No. CA/I/160/95 and Supreme Court decision in Appeal No. SC/200/2003 which established that Adogun Atele was the founder and first settler on Itele land; and not Ogungbemi Alagbeji. It was submitted that by the principle of estoppel per rem judicatam, once a final decision of a Court of competent jurisdiction is pronounced between parties, which include their privies, it cannot be contradicted by any one of such parties in any subsequent

litigation between them. Such a decision operates as a bar between the parties and as evidence, it is conclusive. Reliance was placed on Sosan v. Ademuyiwa (1986) 3 NWLR (Pt 27) page 241; Oke v. Atoloye (1986) 1 NWLR (Pt. 15) page 241 at 248. The Court was urged to hold that the entire Itele land, inclusive of Aiyetoro is owned by the Adogun Atele family.

Learned Counsel for the Respondents referred to various actions which the Adogun Atele family had previously instituted or defended to protect their family rights or interest in Itele land, including decisions relied on during the proceedings in Suit No 17/43, Exhibit B1 – B59, to wit: Suit No. 223/20, which was tendered therein as Exhibit A; as well as Exhibits B, C, D, E, and F also tendered therein, thus:
(i) Exhibit B – Suit No. 249/21 – Ajose Asade v. D D. Olukogbon
(ii) Exhibit C – Suit No. 888/23 – Ajose v. Olukogbon
(iii) Exhibit D – Suit No. 211/27 – Olukogbon v. Owotolu & Ajose
(iv) Exhibit E – Suit No. 69/34 – Olukogbon v. Owotolu Taiwo
(v) Exhibit F – Suit No. 4/34 – The appeal was in favour of Owotolu.

It was posited that all these cases demonstrated that

the Adogun Atele family had consistently maintained their position as overlords over Itele land since 1920 to date. They have continued to assert their rights over the land, over their customary tenants and defended all actions brought against them or their families. It was argued that the trial Court had diligently evaluated the evidence of both parties before arriving at the decision that the traditional history of the Respondents as defendants was more cogent, reliable and probable than that of the Appellants who were the plaintiffs.

The Court was urged to hold that neither prescription nor limitation law can be applied in this case to defeat the reversionary interest of the Respondents, because prescription is unknown to customary law, relying on Mora v. Nwalusi (1962) 1 ALL NLR 682. The Appellants having denied and challenged their overlords’ title to the land in dispute, have lost their right to be on the land, relying on Muemue v. Gaji (2000) FWLR (Pt. 16) 2764. And, that the Appellants having abused their authority to be in occupation of the land granted to them by the Respondents’ Family, are now trespassers on the land, relying on

Manya v. Idris (2000) FWLR (Pt.23). The Court was further urged to hold that the lower Court, having rightly considered and evaluated the evidence placed before it in reaching its final decision, the refusal of the Appellants’ claims and granting of the Counter-Claim of the Respondents was proper and not liable to be set aside. The Court was urged to dismiss this appeal with costs against the Appellants and affirm the decision of the Lower Court.

In their Reply Brief, the Appellants largely reiterated earlier arguments in urging the Court to allow the appeal.

Resolution
It is trite that in an action for declaration of title, the disputed land must be clearly definite and discernible; failing which the claims to title over it, as well as an injunctive order restraining further trespass thereto, should be denied; Offodile v. Offodile & Ors (2019) LPELR-47851 (SC). In the instant case, the Appellants tendered through PW1, Survey Plan No LAY/644A+B/89/OG dated 19/12/1989, Exhibit A; while the Respondents in their Counterclaim claimed that they were entitled to the parcel of land delineated In Survey Plan NO LA/49/1946 dated 24/2/1946, but

did not plead or tender the said Survey Plan. However, the parties were ad idem on the identity of the land in dispute. At the commencement of hearing, in response to the query from the trial Judge, Counsel to the respective parties agreed that the identity of the land was not in dispute. Rather, that the only dispute was with the ownership of the land; page 61 of the Record of Appeal. The identity of the disputed land is therefore not in issue in this appeal, for it was well known by the parties.

It is the well established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju V. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. Established methods of proving title to land, as judicially articulated, have a foremost authority found in the case of Idundun v. Okumagba (1976) 9-10 SC 227 wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence.
2. By various acts

of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Soronnadi & Anor v. Durugo & Anor (2018) LPELR-46319(SC); Otukpo v. John & Anor (2012) LPELR-25053(SC); Irolo v. Uka (2002) 14 NWLR (PT. 786) 195; Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT. 7) 393, (1985) LPELR-1889(SC). A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT. 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT. 1) 126; Balogun v Akanji (1988)2 S. C. 199. Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land; Onwugbufor v. Okoye (1996)1 NWLR (PT 424) 252, (1996) LPELR2716(SC);

Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT. 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S. C. 22; Echi v Nnamani (2000) 5 S. C. 62; Eze v Atasie (2000) 6 SC. (PT. 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989) LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S. C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment.

The parties herein have both relied on traditional evidence. The settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims;

See: Nruamah v Ebuzoeme (2013) LPELR-19771 (SC); Onwugbufor v Okoye (supra); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44 Once a party pleads and traces his root of title to a particular person, he must establish how that person came to have title invested on him. He must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land, more so when his title is challenged; Ogunleye v Oni (1990) 4 S.C. 130, (1990) LPELR-2342(SC); Osafile v Odi (1994) LPELR-2784(SC); Ngene v Igbo (supra).

Once traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof. Therefore, where a Court finds evidence of traditional history to be cogent, neither contradictory nor in conflict or competition with that of the defendant, and accepts it, it would be sufficient to support a claim or declaration of title to land; Sogunro & Ors v. Yeku & Ors (2017) LPELR-41905(SC); Runsewe & Ors V. Odutola (1996) LPELR-2964(SC).

On the other hand, where the traditional

evidence of the plaintiff is inconclusive, or, as given by both parties, the traditional evidence is inconclusive or is in conflict, the trial Court is entitled to consider whether the plaintiff has established such numerous and positive acts of ownership within living memory sufficient to establish that he is the absolute and exclusive owner of the land in dispute; Alade v. Awo (1975) LPELR-400(SC); Balogun v. Akanji (1988) LPELR-720(SC), (1988) 2 S.C, 199; Mkpinang & Ors v. Ndem & Ors (2012) LPELR-15536(SC);. Faleye & Ors v. Dada & Ors (2016) LPELR-40297(SC).

Both parties at the lower Court founded their respective claims to the land in dispute on traditional evidence, which was in blaring conflict. I shall repeat the averments of the parties for emphasis. The Appellants averred that they are the descendants of Ogungbemi Alagbeji who founded Itele Village over 400 years ago. Ogungbemi Alagbeji and his two children, namely: Aro and Olaforikanre, migrated from Ile-Ife, with an entourage, and settled at the place now called as Itele. Olaforikanre had five children, while Aro had six children. The first child of Aro was Isumba who was the

great-grand-father of the Appellants. The Appellants’ late father was Moses Akanbi Asoro, from who the Appellants averred that they inherited the land in dispute. It was their case that their said late father Chief Moses Akanbi was one of the people of Itele that instituted Suit No. 17/43 against one D. D. Olukogbon who had laid claim to all the parcels of land in Itele. In their account, one Alimi Akapo and Taiwo Owotolu were appointed by the people of Itele to represent them against D. D. Olukogbon. But that the Respondents, through their privy, one Ifagbamila, now deceased, did not take part in the action jointly taken by the Itele people against D.D. Olukogbon.

The case of the Respondents, on the other hand, was that their ancestor, Adogun Atele was the founder and first settler on Itele land. Adogun Atele was said to have migrated from Benin several years ago, when the Ifa Oracle directed him to move far away from Benin before he could have children. Adogun Atele, who was a hunter and blacksmith, settled at Itele, where he begat four children; namely: Imidawo, Osa, Ogunrombi and Alagbeji. Adogun Atele’s settlement became known as Itele,

meaning a place where Ele (cutlasses) are sold. The Respondents averred that Adogun Atele’s descendants have consistently instituted and defended actions in protection of their family interest in Itele land from 1920 to date, one of which was Suit No. 17/43, instituted by Alimi Akapo and Taiwo Owotolu, who were descendants of Adogun Atele Family in order to protect and recover their family land from D.D. Olukogbon, a customary tenant of their family, who turned round to claim ownership of the land. This is the same action the Appellants relied on. The Respondents counterclaimed for the land, averring that the Appellants were their customary tenants.

In other words, while the Appellants claimed the disputed land as being descendants of Ogungbemi Alagbeji who founded Itele Village and specifically of the Isumba family which is a land-owning family in Itele, the Respondents claimed the same land in dispute as being descendants of Adogun Atele who was the founder and first settler on Itele land, and the Appellants being their customary tenants. As rightly stated by the learned trial Judge, the best way to test traditional history where there is

conflicting evidence is reference to acts of ownership on the disputed land in recent years. It is now to weigh the evidence of ownership adduced by the respective parties.

PW1 was the Surveyor who tendered Exhibit A, the Survey Plan. It has already been noted that the identity or dimensions of the land in issue was not in dispute. PW2 shared boundaries with the land in dispute. PW2 testified under cross-examination, pages 63 – 64 of the Record of Appeal:
“The land in dispute is not too large. It belongs to Samuel Asorobi’s father when Asorobi’s father was farming on the land, my father was alive. When he died Samuel Asorobi took over.
The Asorobi who begat Moses and my own father were both helping each other on their respective farm lands. Their farmlands were besides each other. The land is in Itele Iand… Alagbeji was the founder of Itele. He came from Ile-Ife. I do not know how Itele was founded. I am one of the descendants of Alagbeji. The 1st plaintiff is also a descendant of Alagbeji.
I do not know the relationship of the defendants to Alagbeji. I cannot answer if the defendants are descendants of Alagbeji. I am a

land owner in Itele. My own land is besides Asorobi’s land. That was how I knew the land is his. Itele land is community land… The land is communal land in Itele.”
He further said, page 64 of the Record of Appeal:
“My father… is an indigene of Itele. We are descendants of Alagbeji. Each owner has farmland in Itele… I know Itele town. There is Itele Community land. There is no Itele family land… I am an indigene of Itele. I farm on my own land.”

The trial Court dismissed the evidence of PW2, and rightly so in my considered opinion. His evidence was downright contradictory. PW2 said that there was no family land in Itele but communal land. But then he also said that each owner, including his own father, owned land in Itele. He, being an indigene of Itele, farmed on his own land. This simply contradicts his earlier evidence that land in Itele is communal. PW2 cannot speak from two sides of his mouth. Further, the only basis of PW2’s claim to knowing that the land in dispute belonged to the Appellants was because he was their boundary neighbour and their fathers had assisted each other in farming on their

respective portions of land. I agree completely with the learned trial Judge that this evidence does not and indeed cannot support ownership of the disputed land. The mere fact that his father helped a neighbour who was farming on a piece of land does not translate to mean the land belongs to the neighbour.
PW2 also said, page 64 of the Record of Appeal:
“Aimi Akapo and James Owotolu I have heard about those names. I am not related to them. I do not understand if they are related to Itele. I only know they were involved in a case with Itele people.”
Under re-examination, PW2 said he was from the Aro branch of Alagbeji, but said he did not know the name of any of the children of Itele.

The further evidence of PW2 underpins my view that the authenticity of his evidence was doubtful. Alimi Akapo and James Owotolu were persons who took action against D.D. Olukogbon in Exhibit B1-B59, which the Appellants pleaded that they were a part of. PW2, who said he was an Itele man denied knowledge of the duo and denied a relationship with them. He did not seem to know the traditional history of the Appellants whose witness he was.

PW3 testified that, page 67 of the Record of Appeal:
“I knew the land belongs to Asorobi because when their father was alive I used to go and help them to harvest kola nuts and also to clear the land.”

Under cross examination, he repeated this basis for his assertion that the land in dispute belonged to the Appellants, and further said:
“Itele people own Itele land. But individual’s land is normally inherited by his children. Each family have (sic) its own farmland.”

Once again, I agree completely with the learned trial Judge that this evidence falls far short as support for a claim of ownership of the disputed land.

The learned trial Judge also discountenanced the evidence of PW4, holding that the testimony of PW4 failed to link his grandfather, Odunagoro Asorobi to Isunba, whom he mentioned was one of the children of Aro. The learned trial Judge posed the question:
“Who were the children of Isunba before getting to Odunagoro and before getting to himself? This is the lacunae in the evidence of the 4th PW.”

The Appellants’ Counsel relied on the pleadings in paragraphs 10, 12,

13, 20, 21 and 22 of the Appellants’ 2nd Amended Statement of Claim to submit that there was no lacuna whatsoever in the traditional evidence given by PW4. He contended that the trial Judge had overlooked the totality of the evidence of the Appellants.

Now, the Appellants pleaded that the second son of Qgungbemi Alagbeji, named Aro, was their progenitor. Specifically, they traced their ancestry to one of the sons of Aro, named Isumba. In paragraph 20, the Appellants pleaded that Isunba begot Ajibawo and Odulami. Odulami begat Bewaji and Idowu. Idowu begat Oduagoro Asorobi. Asorobi begat Moses Akanbi and Wulemotu. Moses Akanbi begot Samuel Asorobi and the other plaintiffs at the lower Court. In paragraphs 23 and 24, the Appellants pleaded:
23. When Oduagora Asorobi died his son Moses Akanbi Asoro inherited the said farm land.
24. When Moses Akanbi Asoro died, the Plaintiffs inherited the farm land.

Clearly, the Appellants pleaded their lineage. However, these averments ought to be translated into evidence. PW4 merely said in evidence in chief, pages 72 – 73 of the Record of Appeal:
“Ogungbemi Alagbemi had two children viz:

Olafonkanre and Aro…
We have two ruling houses in Itele. The two houses are the offsprings(sic) of the two children of Ogungbemi alagbeji… Aro had six children and Olaforikanre had 5 children. Children of Olafonkanre are: Idotele, Ilemo, Idomo, Isalu and Ilogun. Children of Aro are: Isunba, Ijagano, Ilegbede, Ipotobo, Iliwo and Ilekemo.
We the plaintiffs, Asorobi family are from Isunba principal family. Oduagoro Asorobi is my grand father and others. When the eleven offspring of Aro and Olaforikanre grew up they settled at different locations at Itele with each of them farming his own family (sic)… and thereby came the 11 principal families at Itele till today. The Isunba family founded tsunba and settle (sic) down.
The land in dispute is at Itele area. It belongs to Asorobi family. Oduagoro Asorobi, my grandfather is dead; when he died the land he was occupying was inherited by his son, Moses Akanbi Asorobi. He is also now dead. He was my father and father of my brothers and sisters. The land which he inherited from his father; we his children inherited his farmland.”
PW4 did not in evidence link his great grandfather Oduagoro

Asorobi to their said progenitor, Isunba.

1(1979) 12 NSCC 1 at 5.”
Therefore, where a party pleads facts but fails to give evidence on the facts, pleaded, the trial Court cannot act on those bare averments. The Appellants’ Counsel did not appear to take account of this position of the law in his postulations on the pleadings and evidence led by the Appellants. PW4 was the main witness that testified on the traditional history of the Appellants, as neither PW2 nor PW3 appeared to be in tune with the traditional history of the Appellants. But the testimony of PW4 did not give the details as pleaded.

It is trite that in a claim for title to land on which reliance is placed on traditional history, the evidence must condescend to details of that history. If I may reiterate, the settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims.

The plaintiff must plead and testify to these details.

It is important to note that the claim for a declaratory relief, as sought by the Appellants, does not succeed even on the admission of the defendant but on the strength of the plaintiff’s case; Akinbade & Anor v Babatunde & Ors (supra). He must establish that he is entitled to his claims.

Therefore, notwithstanding the Appellants’ pleadings, PW4 failed to establish in evidence the intervening owners of the land in dispute before it got to the Appellants. His evidence was grossly deficient in this regard. The learned trial Judge was therefore right in his conclusion that there was a lacuna in the evidence of PW4. He failed to lead evidence in proof of their pleadings on the source of their title to the land in dispute by linking his grandfather Odunagoro Asorobi to Isumba, who was said to be one of the children of Aro, alleged to be their progenitor. On this score alone, the Appellants did not demonstrate that they were entitled to their claims. I shall return to this point.

For the Respondents, three witnesses testified. DW1 testified that their progenitor was Adogun Atele who migrated

from Benin. DW1 gave the comprehensive lineage of the Respondents descending from Adogun Atele. DW1 also testified that the Appellants were strangers on the land but were their customary tenants. The Appellants’ forebear, Asorobi came from Oko Owu near Ilasa and was given land by one of the Respondents’ forebears by name Taiwo Olowookere, on the condition that he would pay tribute, Isakole, annually in form of yam tubers, palm oil and corn to relatives of Adogun Atele, the Respondents. DW1 also testified that this Asorobi had no child but that he went back to Oko Owu and brought Moses and Wulemotu to Itele, who were children of his deceased relative, Eile. He further testified that when Asorobi died, Moses continued to farm on the land and to pay Isakole to the relatives of Adogun Atele. He testified that Ilogun, Idowu, Ido Itele, Isalu Ilewo, Isunba, Ilekemo, Ijaganna, Ilegbede, Iliwo and Iptobo are not names of human beings but of compounds. That it was therefore incorrect to say that Isunba begat Ajibawo and Odulami, as pleaded by the Appellants. He said that land in Itele belongs to families and not to the community. On Exhibit B, Suit No

17/43, he said it was instituted by Owotolu and Alimi Akapo against Olukogbon, and not instituted by the Appellants. He denied the claims of the Appellants.

Under cross examination, DW1 listed the families of Adogun Atele as: Ijaganna family, Isunba family, Idotele family, Ipotunbo family, Ilekewo family, Ilegbede family, Ilewo family and Salu family. But that the Appellants have no family in Itele.

DW2 and DW3 gave similar evidence in line with their pleadings. DW3 also tendered a number of judgments in respect of the land in dispute. Under cross examination DW3 said he was aware of Alagbeji who was the 4th son of Adogun Atele but he had not heard of Ogungbemi Alagbeji.

Now, the evidence revealed that the Itele land had been subject of series of litigation. In resolving the issues arising in this appeal, it would be instructive to examine these previous decisions.

Exhibit B was the proceedings and judgment in Suit No 17/43 which was before the Native Court of Ake, Grade “A” Abeokuta, between Alimi Akapo and Taiwo Owotulu, for themselves and on behalf of the Itele people v. D.D. Olukogbon of Otta, delivered on 6/12/1943. Both

parties in this appeal relied on this judgment. The plaintiffs therein claimed that the land in dispute therein belonged to the Itele people and identified portions belonging to the Ipotobo families, Iliwo families, Isunba families, Ijagona families, Ilekemo families, Ilegbede families and Ilogun families. The trial Native Court was satisfied with this piece of evidence and finally found in favour of the plaintiffs therein. The defendant’s appeal to the High Court against this decision in Appeal No 1/3A/1950, Exhibit M, was dismissed.

Exhibit D and Exhibit E1 – 7 were the proceedings and the judgment in Suit No AB/67/76: Chief Raufu Ilo & Ors v. Jimoh Akapo & Ors. In issue therein was a power of attorney made between the defendants therein and named third parties over land alleged to belong to the Itele Community and alleged to have been fraudulently executed without the knowledge or consent of the Itele Chiefs and the Itele Community. The case of the defendants therein was that the land in dispute therein belonged to their family and that their ancestor, Adogun Atele, was the founder of Itele. The trial Court, per Delano, J. held that the

power of attorney was not executed over Itele Community land but over Itele family land, in respect of land owned, possessed and controlled by the defendants’ family. The plaintiff’s case therein was dismissed.

I find it worthy of note that PW4, who testified as PW2 in the same Suit No: AB/67/76 at page Exhibit D7, said therein that there was no family land in Itele, but community land. That the Itele Community gives out land to families. In the instant case, the case of the Appellants is that the land in dispute is their family land.

Exhibit H was the judgment of the trial Court in HCT/137/92: Mr. Akapo v. Arowolo & Ors. The plaintiff brought the action in a representative capacity to ensure that the hereditary rights of descendants of Adogun – Atele to the title of Oba of Itele are preserved and to stop further violations of those rights. The plaintiff as PW1 therein traced their lineage from Adogun Atele who had migrated from Benin to the present Itele and who had four children, namely: Imidawo, Osa (also called Orisa), Ogunrombi and Alagbeji, making four ruling houses known as Imidawo (sometimes called Ijagona Ruling House); Osa

Ruling House (sometimes called Isunba Ruling House); Ogunrombi Ruling Ho use (sometimes called Idotele Ruling House); Alagbeji Ruling House (sometimes called Ipotobo/Ilogum Ruling House). He further testified that compounds established by Adogun Atele were Idomo, Idotele, Asalu, Ilekene, Isunba, Ipotobo/Ilogun, Iliwo, and Ijaganna.

The 1st defendant therein (the Appellants’ maternal cousin) testified that Ogungbemi Alagbeji was the first settler at Itele having migrated there from Ile-Ife and that he had two children: Olaforikanre and Aro, making two ruling houses. In his testimony, Idotele, Ilekemo, Ilegbede and Ijaganna are all descendants of Alagbeji. The first issue considered by the trial Court therein was whether the plaintiff established that the Ruling Houses that had previously produced Obas and Bales were: Imidawo, Osa, Ogunrombi and Alagbeji.

At the conclusion of hearing, the trial Judge therein said, page Exhibit H28:
“I have come to the conclusion that traditional evidence of the plaintiff is more probable, concise and consistent. The first issue is therefore resolved in favour of the plaintiff… It follows from the

first declaration which I have granted that the 1st defendant who by his pleading and evidence has denied any link or blood relationship with the Adogun Atele family cannot claim entitlement to the throne of Itele through Adogun Atele family.”

Dissatisfied, the plaintiff therein appealed to this Court in CA/I/160/95. Exhibit I1-62 was the judgment of this Court in CA/I/160/95: Arowolo v. Akapo & ors affirming the judgment of the trial Court.

Exhibit K1- 18 was the decision in CA/I/130/90, Madam Maria O. Ajireru & Chief J. K. Olukogbon v. Madam M. Owotolu & Mr. J.O. Akapo.

The appeal arose from the decision of the trial Court in Suit No HCL/47/81, the proceedings and judgment of which were tendered as Exhibit J1 – 41. The appellants therein who also were the plaintiffs at the lower Court, were representatives of the Jaguno families of Itele. The claim against the respondents as defendants before the lower Court was for declaration of title, possession and an order of perpetual injunction. In Exhibit J1 – 46, the learned trial Judge, Craig CJ held, page J37 – 38:
“After listening carefully to Counsel’s

submissions, I am not in any doubt that the land in dispute in the earlier case, Suit No. 17/43 (Ex. 7) is the same as is now in dispute. In that case, the claim was for declaration of title in the land at Itele. The Plan, Ex. 7A was used in the case and it is the same Plan which the Plaintiff’s Surveyor reproduced and tendered as Ex. 5…This is not all, a fair comparison of the Plan (Ex. 9) used in the other case at the High Court, in Suit No. AB/97/74, shows that the same land was in dispute.”

Exhibit L1 – 4 herein was the ruling of the High Court in Suit No AB/97/74, referred to the learned trial Judge therein. The trial Court therein also found that that the plaintiffs in Suit No HCL/47/81, were the same family as the defendants in Suit No 17/43, Exhibit B1 – B59, particularly, the 2nd plaintiff who was the grandson of the defendant in Suit No 17/43.

The respondents therein had traced their genealogy to Adogun Atele who had migrated from Benin and finally settled in Itele. The trial Court therein, which could make no decision based on the conflicting traditional histories, proceeded to consider the recent acts of ownership by the

parties therein and dismissed the claims of the appellants therein. The decision of the lower Court, per Craig C.J., was affirmed by this Court in Exhibit K1-K46. This Court in Exhibit K1-K46 also found that the traditional evidence called by the appellants as plaintiffs was not convincing and that their evidence as to their acts of possession and ownership was not numerous and positive enough to warrant the inference that they were the owners of the land.

Notwithstanding the fact that DW3 who tendered Exhibit J1 – 46 and Exhibit K1 – K46 was not cross examined thereon, the pronouncement of the trial Court therein, and affirmed by this Court established that the land in dispute in these proceedings was the same land in dispute in the earlier Suit No 17/43.

Exhibit L1 – 4 was a ruling in Suit No AB/97/74: Olukogbon v Akabo & Ors in which the trial Court therein refused an order for interim injunction. The trial Court noted therein the land in dispute before it was the same land that the Grade A Court, Abeokuta in a case filed by the predecessors in title of the plaintiffs before it had adjudged about 30 years earlier (1946) to be the property of

the predecessors in title of the defendants. This was Suit No 17/43.

From the above decisions, it is clear that the land in dispute has remained substantially the same.

The judgment in Suit No 17/43, Exhibit B1 – B59, declared as follows:
“The Court therefore declares as against the defendant (D.D. Olukogbon) that the whole farmland in dispute as delineated on the Plan Exhibit ‘X’ and edged red or pink to be the property of the Plaintiffs and the people of Itele and their Tenants or Grantees of any part of the farmland in dispute.”

The plaintiffs in Suit No 17/43, who were the adjudged owners of the disputed land, were Alimi Akabo and Taiwo Owotolu (for themselves and on behalf of Itele people). The relationship of the Respondents to Alimi Akabo and Taiwo Owotolu, whose family members have also been successful parties to various suits asserting their rights over the land, was in evidence. The question now is whether the Appellants were part of Plaintiffs and the people of Itele and their Tenants or Grantees who were adjudged owners of the land in Suit No 17/43, Exhibit B, as well as in Exhibit J1 – 46, Exhibit K1-K46, and Exhibit L1 – 4.

The case of the Appellants was that their progenitor was Ogungbemi Alagbeji who migrated from Ile-Ife and founded Itele. Ogungbeji Alagbeji had two children Aro and Olaforikanre. The children of Olaforikanre were Idotele, Ilemo, Idomo, Isalu and Ilogun. The children of Aro were Isunba, Ijagano, Ilegbede, Ipotobo, Ilowo and Ilekemo. PW4 said that their family is from the Isunba principal family, which founded Isunba and settled down. He said the disputed land was in the Itele and belonged to the Appellants.

Although PW4 testified that the people of Itele including his father, Chief Moses Akanbi Asoro, contributed money toward the transportation to and from the Court at Abeokuta and maintenance of their representatives during the trial of Suit No. 17/43, Exhibit B1 – B59, to my mind, having regard to the fact that the Appellants and the Respondents did not plead consanguinity, the relevant question to consider is whether the Appellants were, somehow, part of the Itele people or whether they were on the land as customary tenants or as grantees. There had to be a basis for their alleged involvement in the prosecution of Suit No 17/43 in

defence of the Itele family land, which is now in dispute. Indeed, the Respondents’ Counsel had also raised this query in view of the fact that the parties had no admitted blood relationship.

The Appellants’ case was that they were of the Isunba family, one of the land-owning families identified in Suit No 17/43, Exhibit Bi- B59. But the Respondents maintained in evidence that Isunba was the name of one of the compounds established by Adogun Atele and not of a human being. Now, a compound, in African parlance, consists of families and not just one family. This is also in line with the finding of the trial Native Court in Suit No 17/43. The plaintiffs therein had identified portions of the disputed land that belonged to the Ipotobo families, Iliwo families, Isunba families, Ijagona families, Ilekemo families, Ilegbede families and Ilogun families. The survey plan therein, Exhibit X, identified portions belonging to different families. At page 15 of Exhibit B, the surveyor testified that:
“…the boundaries edged grey on the plan Exhibit ‘X’ belong to Isunba families..”

The trial Native Court held, page B54:
“The Court is satisfied on the evidence of the Plaintiffs and their witnesses that the whole farmland in dispute belong to the different townships or families at Itele known as follows: Ipotobo, Iliwo or Iniwo, Isunba, Ijagona, Ilekemo, Ilegbede and Ilogun.”

The words: townships or families do not create the impression that it is just one family known by the identified names. Interestingly, PW2, Dali Jinadu, said he was from Ilekewo, Itele. But PW3 said, page 66 of the Record of Appeal:
“I know Jinadu Dali. He was from Iga Molebi Ilegemo. Ilegemo is a compound in Itele.”

DW3 also testified that Ilekewo is a compound in Itele. Again, I find it noteworthy that in Suit No AB/67/76, Exhibit D1 – D15, the 1st plaintiff therein who testified as PW1 said under cross examination, page Exhibit D4:
“The 1st defendant belongs to Isunba family. The 2nd defendant belongs to Ilekemo family The 3rd defendant belongs to Ijagona family and the 4th defendant belongs to Idotele family. It is true that these names are the names of quarters but not family names.” (Emphasis mine).
The 1st defendant therein was Jimoh Akapo.

It can be surmised that Exhibit B1 – 59, as well as the evidence of PW2, PW3 and DW3, and Exhibit D1 – D15, corroborate the evidence of the Respondents, that Isunba is not the name of a family but a group of families emanating from the Isunba compound. The families emanating from Isunba compound were identified as one of the landowners in Itele in Suit No 17/43, Exhibit B1- B59. Obviously, their customary tenants would be on the portion of land allocated to them by the landowning family and they would also typically identify in every way with their overlords in any tussle over ownership of the land. This may include making financial contributions to the defence of the land.

The Appellants had disavowed Adogun Atele as their progenitor. While PW3 had denied outrightly the existence and his knowledge of Adogun Atele, PW2 had admitted under cross examination that he had heard of Adogun Atele but that he cannot say anything about them. The Appellants’ traditional history was consistently that one Ogungbemi Alagbeji who migrated from Ile-Ife to the present Itere was their forebear. But this account, placed on a scale with the account of the Respondents,

was held not to be probable, concise and consistent in Exhibit H and affirmed in Exhibit I1-62.

I am not unmindful of the fact that the cause of action in Exhibit H had to do with hereditary rights to ascend the throne of Itere and not with the land in dispute. In fact, although PW3 had testified that the Arowolos and the Asorobis (the Appellants) were cousins, PW4 made it clear in evidence that the dispute in Exhibit H had nothing to do with Asorobi family land. However, the genealogy and traditional history of the parties were considered in those proceedings and pronounced upon. The same issues on the genealogy and traditional history of the same parties has arisen in the instant appeal. Previous pronouncements of trial Courts thereon, which were affirmed by this Court, cannot be lightly esteemed.

Although family history was not an issue in Suit No. 17/43, Exhibit B1 – B59, it is noteworthy that at page B40, the defendant therein, in his attempt to prove his claim to the land testified that:
“Ipotobo Egbeji, Ileka and Orisa came from Benin.”

The lineage of the Respondents was traced to Adogun Atele who migrated from Benin and

had four children named: Imidawo, Osa (also called Orisa), Ogunrombi and Alagbeji. The similarity in names exposed that the evidence of the defendant was an inane attempt to distort the traditional history of the Respondents. Little wonder the trial Native Court described the defendant as a liar and his account of traditional history as a made-up story.

It was the lineage that traced their ancestry to the forebear Adogun Atele, that was held entitled to the land in dispute in Exhibit J1 – 46, Exhibit K1-K46, and, Exhibit L1 – 4. The land in dispute in these decisions was adjudged to be the same as the land in dispute in Exhibit B, 17/43, which was affirmed in Exhibit M. In determining the hereditary rights to ascend the throne of Itere, the trial Court in Exhibit H held:
“It follows … that the 1st defendant who by his pleading and evidence has denied any Link or blood relationship with the Adogun Atele family cannot claim entitlement to the throne of Itele through Adoguri Atele family.”

Thus, it was the lineage that traced their ancestry to the forebear Adogun Atele that was also held to be entitled to the hereditary rights to

ascend the throne of Itere.

In the decision on appeal herein, the learned trial Judge held, pages 238 – 239 of the Record of Appeal:
“It is clear that the Plaintiffs’ foundation or basis for being entitled to the parcel of land (in the present case) is that they are the descendants of Ogungbemi Alagbeji who founded Itele and whose two children Aro and Olaforikanre form the ruling houses of Itele.
There is no doubt that the Plaintiffs in HCT/137/92, Exhibit ‘H1 – 35’; which was confirmed by the Court of Appeal in CA/1/160/95, Exhibit ‘I1 – 62′; are privy to the defendants now before this Court. While the defendants in that case are privy to the plaintiffs now before this Court.
It is however clear from the claim of the plaintiffs before this Court that their contention that their ancestor Ogungbemi Alagbeji’s children viz Aro and Olaforikanre forming the two ruling houses in Itele was knocked off in Suit No. HCT/137/92 and the appeal in Suit No.1 CA/I/160/95. And since that is their foundation or basis for being entitled to the land in dispute, that foundation crumbles totally. And since nothing can stand on

nothing, their claim for being entitled to statutory or customary right of occupancy has no basis.
The pleadings and evidence in support adduced by the defendants/counter-claimants that they inherited the land in dispute from their ancestor, Adogun Atele, who first settled at Itele after migrating from Benin is therefore more credible and is entitled to be given the maximum weight possible. It is therefore hereby declared that the Adogun Atele family of Itele are the person’s (sic) entitled to the Statutory Right of Occupancy over all that parcel, of land situate, lying and being at Itele via Ota particularly described and delineated in Survey Plan No. LAY/644 A+B/89/OG.
Both parties have claimed to be in possession. But the law ascribes possession to the party with a better title. Since this Court has concluded that the defendants/counter-claimants have a better title, possession is accordingly given to the defendants/counter-claimants.”

I agree completely with the findings and conclusions of the learned trial Judge, and see no reason to disturb same. I also affirm the further orders made by the learned trial Judge refusing and

dismissing the orders for damages for trespass and perpetual injunction against the Respondents as sought by the Appellants.

The Respondents pleaded and testified that the Appellants were their customary tenants on the land in issue. The Appellants pleaded in paragraphs 26 and 27 of the Amended Statement of Defence and Counterclaim, pages 131 – 135 of the Record of Appeal, as follows:
26. The Defendants aver that Asorobi migrated from a village known as “Oko Cmi” near Ilasa and he was a guest of Taiwo Owotolu at Isumba Compound, Itele.
27. The Defendants aver that Asorobi applied for parcel of land for livelihood through Taiwo Owotolu from Adogun Atele, and the Adogun Atele (sic) granted him portion of land as Customary Tenant with payment of tribute.

DW3 testified that the condition for giving Asorobi the land was that he would be paying Isakole like yam, corn and other crops harvested on the land. He further said that Asorobi acted as expected by the Respondents. After his death, their family began to demand for the land. Although the Appellants denied these averments, the evidence demonstrated that the initial entry of the

Appellants on the disputed land through Asorobi was with the consent of the Respondents. The evidence was that the Appellants were put in possession of the land in dispute upon the application of their forebear Asorobi, as customary tenants.

It was commonplace in the early history of this Country to have strangers approach a community to seek land for farming purposes or for settlement or for both purposes. Usually when land is granted to the stranger in such circumstance, a conditional grant is presumed. As long as the landowners accept or permit the use and occupation or possession of their land, not upon an absolute grant, nor for a temporary use as licensee, a customary tenancy is thereby impliedly created, whether or not precise terms of the tribute were spelt out; Makinde v Akinwale (2000) 1 S.C. 89), (2000) LPELR-1829(SC). The grantee becomes a customary tenant with full rights of possession which is exclusive against all, including the landlord, and subject to the good behaviour of the tenant, he may hold the land in perpetuity; Atolagbe v Shorun (1985) LPELR-592(SC); Salami v Lawal (2008) LPELR-2980(SC), (2008) 14 NWLR (PT. 1108) 546.

The learned author, Hon Justice I.A. Umezurike (of blessed memory) in his book ABC of Contemporary Land Law in Nigeria (Revised and Enlarged Edition) at page 249 thereof defined a customary tenant as:
“…a grantee of land under customary law, which (land) he holds in perpetuity determinable only upon proof of bad behaviour against the grantor or his successors-in-title.”
The right of a customary tenant to remain on the land is perpetual if he is of good behaviour; Abioye v Yakubu (1991) 5 NWLR (PT. 190) 130, (1991) LPELR-43(SC), (1991) 6 SC 72; Ojomu v Ajao (1983) LPELR-2394(SC). That is to say, his interest in the land which he holds of his overlord is in perpetuity, if he remains of good behaviour. Otherwise, he may forfeit his holding on order of Court for forfeiture at the instance of the overlord; Ejeanalonye & Ors v Omabuike & Ors (1974) LPELR-1059(SC), (1974) 2 SC 27. In the absence of bad behaviour, a customary tenant enjoys security of tenure in perpetuity. His interest cannot be overreached by the overlord.
What may amount to bad behaviour by a customary tenant that can deny him perpetual enjoyment of the land may be

enunciated as follows:
1. Denial of the title of the overlord in any circumstance; Abioye v. Yakubu (supra); Oniah v. Onyia (1989) 1 NWLR (PR 99) 514, (1989) LPELR-2677(SC); Salami v. Oke (1987) LPELR-2982(SC). Denial of the title of an overlord has been described as one of the greatest breaches that a customary tenant can commit.
2. Refusal to pay the traditional or customary tribute. Judicial pronouncements have established that the main feature of a customary tenancy is the payment of tribute to the overlord, which payment entitles the customary tenant to enjoy his holding in perpetuity, subject to good behaviour; Akinbade v Babatunde (2017) LPELR-43463(SC); Abioye v Yakubu (supra). Such tribute is paid directly to the overlord, not through a third party; Dashi v Satlong (2009) LPELR-929 (SC), (2009) 1-2 S.C. 5; (2009) 5 MWLR (PT. 1134) 281. The law also recognizes that there can be a customary tenancy without the payment of tributes but this must be proved by evidence; Akinbade & Anor v. Babatunde & Ors (supra); Makinde v Akinwale (2000) 1 S.C. 89), (2000) LPELR-1829(SC); Galadima v Kuku (2018) LPELR-43886(CA); Angough & Ors v. Uga & Anor

(2018) LPELR-43889(CA).
3. Alienation of the land or portions of it without the consent of the overlord, A customary tenant has no right to alienate land granted to him; Akinlagun v Oshoboja (2006) LPELR-348(SC). Any such alienation by a customary tenant is null and void except the tenant is able to show that such alienation is permitted by the customary law of the particular community; Anyaduba & Anor v Nigerian Renowned Trading Company Ltd (1992) 6 SCNJ 204, (1992) LPELR-505(SC).
4. Use of the land for purposes other than that for which it was granted; Idih v Obaje (2010) LPELR- 3816(CA). Such unauthorized uses may include the tenant bringing in foreign idols, juju or voodoo on the land which is subject to customary tenancy.
5. Giving evidence in favour of opponents of the overlord in a litigation involving the land, or testifying against the overlord. A customary tenant is expected to identify in every way with their overlord in any tussle over ownership of the land.
The Appellants who were not the owners of the disputed land were on the land upon the grant by the Respondents, the adjudged owners. It is trite that mere

possession of land as customary tenant however long, cannot mature to confer the rights of ownership; Onwuka v Ediala (1989) LPELR-2720(SC). Once a customary tenant not only turns around to dispute the ownership of the title holder, his overlord, but also goes out of his way to claim title to the land, he forfeits his rights as a tenant and his possession thereto; Ogun v Akinyelu (2004) LPELR-2319(SC).
Having directly challenged the radical title of the Respondents, who were their overlords by setting up a rival title in themselves, the Appellants by their impertinent action were liable to forfeiture of the land in dispute, as counterclaimed by the Respondents; Oniah v Onyia (supra); Salami v Oke (1987) LPELR-2982(SC); Bamgbegbin v Oriare (2009) LPELR-733(SC).

Let me again emphasize that the identity of the land was not in issue. The parties were ad idem on this point. Therefore, the reliance on the survey plan tendered by the Appellants by the trial Court cannot be faulted, as was argued by Counsel for the Appellants.

In the light of the foregoing resolutions, I find I must agree with the conclusion of the learned trial Judge that the

Appellants had forfeited their rights to the land in dispute and that the Respondents were so entitled to the relief of forfeiture. I agree with the learned trial Judge that the Respondents who proved a better title, were entitled to the grant of their counterclaim. Issues 1 and 2 are thus resolved against the Appellants and in favour of the Respondents.

This appeal was liable to be struck out following the Respondents’ Preliminary Objection, which was upheld. On the merits, it fails and is hereby dismissed. The decision of the learned trial Judge made on 31/1/2012 in Suit No HCT/318/2002 is hereby affirmed.
The Respondents are entitled to costs which is hereby assessed at N200,000.00 against the Appellants.

TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading in draft the comprehensive and lucid leading Judgment prepared and rendered in this appeal by my Lord and learned brother OTISI JCA, who painstakingly navigated through the facts and applicable law in this appeal, in sum therefore, I must say that my learned brother fully and effectively covered the field, however, at the risk of repeating what has been placed on record, let me

surrender to the temptation of adding the following few words. Appellants appeal relates to claim for title to land at the Court below, the Respondents also laid similar claim to the same land and filed Counter claim. I must add that the identity of the land subject matter of litigation is not in controversy therefore both parties agreed on the identity of the land.

The law remains fully settled on seemingly endless judicial decisions that there are five methods of proving title to land, the methods are as set by the Supreme Court of Nigeria in IDUNDUN v. OKUMAGBA (1976) 9/10 SC 27, where the Court set out the five ways as follows:
(a) by traditional evidence,
(b) by production of documents of title duly authenticated and executed,
(c) by acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership,
(d) by acts of long possession and enjoyment,
(e) by acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.

The Appellants claim is that they are descendants of Ogungbemi Alagbeji who founded Itele Village over 400 years ago. Ogungbemi Alagbeji and his two children, Aro and Olaforikanre, migrated from Ile-Ife, and settled at Itele the subject matter of controversy between the contending parties in this appeal. Olaforikanre one of the children of Ogungbemi Alagbeji had five children. The claim of the Appellants is that Aro one of the Children of Ogungbemi Alagbeji who had six children was the father of their great grandfather Isumba. The Appellants averred that they drove their title by inheritance to the disputed land from their late father Moses Akanbi Asoro. Appellants also contended that their late father, Chief Moses Akanbi Asoro, was one of the people of Itele that instituted Suit No. 17/43 against one D. D. Olukogbon a land grabber who laid claim to all the parcels of land in Itele.

The Appellants who claimed title approached the lower Court as Plaintiffs by an amended writ claiming the following reliefs:
a. A Declaration that the Plaintiffs are the person entitled to the statutory right of occupancy and/or customary right of occupancy in respect of the

piece of land situate, lying and being at Itele via Otta and more particularly delineated on survey plan No. LAY/644/A+B/89/OG drawn by licensed surveyor L.A. Yakubu dated 19th December, 1989.
b. N200,000.00 for trespasses committed by the Defendant on the said land.
c. An Order of perpetual injunction restraining the Defendant, his agents, servant, assigns and or privies from committing an act of trespass on the said parcel of land described in relief one above.

On the part of the Respondents, they contended that their ancestor, Adogun Atele was the founder and first settler on Itele land, the subject of litigation between the contending parties. The Respondents further contended that Adogun Atele’s descendants consistently instituted and defended actions pertaining to or connected with the protection of their family interest in the Itele land from 192o0 t date. Respondents particularly referred to Suit No. 17/43, instituted by Alimi Akapo and Taiwo Owotolu, descendants of Adogun Atele family, in order to protect and recover their family land from D.D. Olukogbon, a Customary tenant of their family, who claimed ownership of the land.

The Respondents counterclaimed against the Appellants as follows:-
(a) A DECLARATION that the Adogun Atele family of Itele are the persons entitled to the Statutory Right of Occupancy of all that piece or parcel of land situate, lying and being at Itele, via Ota which is more particularly described and delineated on Survey Plan No. LA/49/1946 drawn by Akande and dated 24/2/46.
(b) A DECLARATION that the 1st, 2nd and 3rd Plaintiffs not being members of the Adogun Atele Family of Itele are not entitled to any benefit or interest in the family land or at all.
(c) A DECLARATION that the Plaintiffs have forfeited their right to the land in dispute.
(d) The sum of N750,000:00k as special damages being 50% of the Solicitors fees for defending this action, which money would not have been incurred but for the wrongful action of the Plaintiffs.
(f) PERPETUAL INJUNCTION restraining the 1st, 2nd and 3rd Plaintiffs, their servants, agents or privies or howsoever described from committing any further act of trespass on the Adogun Atele family land at Itele of which the Defendants are the current Heads of family.

The Court below dismissed Appellants

claim and granted the reliefs sought by the Respondents in their counterclaim. Both parties at the lower Court founded their respective claims to the land in dispute on traditional evidence. Where the contending parties in a claim for title land hinge their claim on traditional evidence, to determine the conflict arising from the evidence, the trial Court takes guidance from settled judicial decisions like the decision of this Court in OMOLONA & ANOR V. APASIN & ANOR (2019) LPELR-48869 where the Court held as follows and I quote:
“In the instant case, the Appellants chose to prove their title to the land by way of traditional history. Incidentally, the Respondents chose to base their defence on traditional history as well. It is the law that, for a party to succeed in a claim for declaration of title to land, such party must plead and lead credible evidence establishing the following facts:- (a) Relating to the founding of land in dispute; (b) The person or persons who founded the land and exercised original acts of possession; (c) The persons on whom the title in respect of the land was devolved since its first founding, without any break

or gap in the claim of devolution to the present owners. See Piaro v. Tenalo & Ors. (1976) 12 S.C. P. 31 at 41; Woluchem v. Gudi (1981) 1 NWLR (pt.4) p.572 at 628; Ezeokonkwo v. Okeke (2002) 11 NWLR (pt.777) p1; Dike v. Okoloedo (1999) 19 NWLR (pt 623) p.359 at 63 and Emenyonu v. Ndoh (2000) 9 NWLR (pt.671) p.251. The above stated ingredients are the facts the trial Court will consider in order to determine whether the plaintiff has successfully proved his title to the land he claims through traditional history. In the appraisal and evaluation of the evidence led in the case, the trial Court should bear in mind that where both sides to the dispute claim ownership to the land based on traditional or ancestral history, it is the party that advances better evidence of traditional history or ownership that will be entitled to the judgment of the Court. See Osu v. Igiri (1988) 1 NWLR (pt.69) p.221. It therefore means that before arriving at a decision one way or the other, the trial Court has a bounden duty to evaluate the evidence led by both sides to the dispute. The fact that the burden of proof rests in the plaintiff does not discharge the trial judge from his

duty to consider the evidence of both the plaintiff and defendant and ascribe probative value or weight to each of them. The burden of proof cast on the plaintiff only means that, the plaintiff should lead evidence which is more credible than that of the defendant. In other words, after weighing the evidence by the trial judge, the plaintiff should only succeed because the evidence led by him, tilts the balance of the imaginary scale in his favour. The plaintiff should therefore not succeed because the defence has offered weak evidence, though in considering the weight of evidence in favour of the plaintiff, the trial Court should take into account those weaknesses in the defence’s case which strengthens or tends to strengthen the plaintiffs case. See Akinola & Anor v. Oluwo & Ors.(1962) All N.L.R. p.224 at 227 and Woluchem v. Gudi (1981) 5 S.C. p.291. What I have laboured to state is that, the trial Court has the primary duty to properly evaluate or appraise the evidence led by the claimant before reaching a conclusion one way or the other in respect of the claim… It is therefore the primary duty of the trial Court to make findings of fact

and to ascribe probative value to such facts adduced before him. Indeed, that duty is preserved for the trial judge who had the advantage of watching and assessing the demeanour of the witnesses that testified before him. See Kimdey v. Military Governor; Gongola State (1988) NWLR (pt. 77) p.445; Registered – Trustees of Apostolic Faith Mission v. James (1987) NWLR (pt.61) p.556; Teriba v. Adeyemo (2010) 13 NWLR (pt.1211) p.242; Layinka v. Makinde (2002) 10 NWLR (pt.775) p.358 and Ita v. Ekpenyong (2001) 1 NWLR (pt 695) p. 587…”

In line with the settled position of the law, the learned trial Judge conducted an incisive and meticulous analysis of the evidence led by the litigating parties at pages 238-239 of the records of appeal, the learned trial Court held as follows and I quote:
“It is clear that the Plaintiffs’ foundation or basis for being entitled to the parcel of land (in the present case) is that they are the descendants of Ogungbemi Alagbeji who founded Itele and whose two children Aro and Olaforikanre form the ruling houses of Itele.
There is no doubt that the Plaintiffs in HCT/137/92, Exhibit ‘H1 – 35’; which was

confirmed by the Court of Appeal in CA/I/160/95, Exhibit ‘I1 – 62’; are privy to the defendants now before this Court. While the defendants in that case are privy to the plaintiffs now before this Court.
It is however clear from the claim of the plaintiffs before this Court that their contention that their ancestor Ogungbemi Alagbeji’s children viz Aro and Olaforikanre forming the two ruling houses in Itele was knocked off in Suit No. HCT/137/92 and the appeal in Suit No. CA/I/160/95. And since that is their foundation or basis for being entitled to the land in dispute, that foundation crumbles totally. And since nothing can stand on nothing, their claim for being entitled to statutory or customary right of occupancy has no basis.
The pleadings and evidence in support adduced by the defendants/counter-claimants that they inherited the land in dispute from their ancestor, Adogun Atele, who first settled at Itele after migrating from Benin is therefore more credible and is entitled to be given the maximum weight possible. It is therefore hereby declared that the Adogun Atele family of Itele are the person’s (sic) entitled to the

Statutory Right of Occupancy over all that parcel of land situate, lying and being at Itele via Ota particularly described and delineated in Survey Plan No. LAY/644A+B8/89/OG.
Both parties have claimed to be in possession. But the law ascribes possession to the party with a better title. Since this Court has concluded that the defendants/counter-claimants have a better title, possession is accordingly given to the defendants/counter-claimants.”

I totally agree with my learned brother that the decision of the lower Court is right and deserves to be preserved. It is not the business of this Court to tinker with the findings of the trial Court where the Court discharged its duty of evaluation and ascription of probative value to the evidence led at the trial with dispassion. The learned trial Judge as rightly found by my learned brother in the leading Judgment, properly discharged his duties.

For these few reasons and the more robust reasons encapsulated in the comprehensive leading Judgment prepared and rendered by my learned brother, I wholly join my lord in dismissing the Appellants appeal and abide by all the consequential orders including the order on costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother, Onyekachi Aja Otisi, JCA. I am in complete agreement with the reasoning and conclusion contained therein that the appeal is lacking in merit and substance.

I adopt the judgment as mine in dismissing the unmeritorious appeal and I abide by all the consequential orders in the lead judgment.

Appearances:

Oluwaremi Adeoye, Esq. For Appellant(s)

O. Balogun, Esq. For Respondent(s)