AYOOLA v. ATANDA & ANOR
(2020)LCN/14346(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, June 26, 2020
CA/IB/354/2009
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
AMUSA AYOOLA APPELANT(S)
And
- CHIEF OJELABI ATANDA 2. SAMUEL OYEDOTUN (For Themselves And On Behalf Of Alapini Family Of Koso, Isale-Oyo) RESPONDENT(S)
RATIO
WHETHER OR NOT THE BURDEN LIES ON THE PLAINTIFF TO ADDUCE CREDIBLE EVIDENCE THAT HE IS ENTITLED TO THE RELIEF SOUGHT IN AN ACTION OF TITLE TO LAND
It is the settled law that in an action for declaration of title to land, just like in all declaratory actions, the burden lies throughout on the Plaintiff to adduce sufficient and credible evidence that will satisfy the Court that he is entitled to the relief sought. Therefore, declaratory reliefs are not granted in the absence of credible evidence from the Plaintiff, or because the Defendant had made admissions or failed to lead evidence. It also means that a plaintiff in an action for declaration of title to land is required, in proving his title to the land in dispute, rely on the strength of the evidence adduced by him. Such plaintiff may however take the benefit of that aspect of the defendant’s case that supports his claim. See Anthony Osuji v. Ogbonna Osuji & Anor (2014) LPELR – 23769 (CA); Chief L.K. Ajibare & Anor v. James Akomolafe & Anor (2011) LPELR – 3948 (CA); Johnson Ofigo v. Gilbert Ezeoke (2019) LPELR – 46953 (CA); Owhonda v. Ekpechi (2003) 17 NWLR (pt.849) 326 and Elias v. Omo-bare (1982) All N.L.R.75. Thus in the case of Akinduro v. Alaya (2007) 15 NWLR (pt.1057) 312, Aderemi, JSC held as follows:
“It is trite law that a plaintiff who claims declaration of title to land has a compelling duty to establish his case by credible evidence to the satisfaction of the Court; the weakness of the case for the defendant will not avail him unless it is seen that there are averments in the statement of defence or even the testimonies of the defendant and/or his witnesses which support the case of the plaintiff….” PER TSAMMANI, J.C.A.
WHETHER OR NOT WHERE A PLAINTIFF HAS NOT MADE OUT A PRIMA FACIE CASE, THE COURT DOES NOT HAVE TO CONSIDER THE CASE OF THE DEFENDANT AT ALL
If the evidence adduced by the plaintiff is unsatisfactory, then he has not made out a prima facie case, in which case, the trial Court does not have to consider the case of the defendant at all. See Sanusi v. Ameyogun (1992) 4 NWLR (pt.237) 527 at 547; Duru v. Nwosu (1989) 4 NWLR (pt.113) 24, Oyefeso v. Coker (1999) 1 NWLR (pt.588) 654 at 660 and Agu v. Nnadi (1999) 2 NWLR (pt.589) 131 at 142. This is based on the principle that, a defendant need not call evidence unless where he has filed a Counter Claim. In other words, a defendant who has not filed a counter claim, has no obligation to lead evidence at the trial as in such situation there is no burden on him to proof anything. His duty in such a circumstance is merely to defend the claim. Thus, where a defendant who has not Counter-Claimed adduces evidence, such evidence cannot be raised to the level of a Counter-Claim in the absence of such specific claim. Such evidence he has led, no matter its cogency, will go to his defence only. See Adeleke v. Iyanda (2001) 6 S.C.1; Nkwocha v. Ofurum (2002) 6 NWLR (pt.761) 506; Atanda v. Ajani (1989) 3 NWLR (pt.111) 511 and Diko v. Ibadan South-West L.G. (1997) 2 NWLR (pt.486) 235 at 244. See also Chief Patrick S. Okoye & Ors v. Edeani Nwavu & Ors (2003) LPELR – 12330 (SC) and Dim v. Enemuo (2009) 10 NWLR (pt.1149) 353 at 394 – 395 paragraphs H – B. PER TSAMMANI, J.C.A.
WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND
The plaintiff may discharge the burden by leading credible evidence in order to prove his title to the land he claims by any of the followings ways:
(a) Proof by traditional evidence
(b) Proof by production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody.
(c) Proof by acts of ownership over the land in dispute such as selling, leasing or making a grant, renting out all or any part of the land, or farming on it or portion thereof, extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the person exercising such proprietary acts are the true owners of the land
(d) Proof of acts of possession and enjoyment of the land which prima facie may be evidence of ownership, not only of the particular piece of land with reference to which such acts are done, but also of other land so situated or connected there with by location or similarly that the presumption under Section 46 of the Evidence Act applies and the inference can be drawn that what is true of the piece of land is likely to be true of other pieces of land.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owners of such connected or adjacent land would in addition be the owners of the land in dispute.
It should be noted that the above stated ways of proving title are independent of each other. It therefore means that, a plaintiff may predicate his claim of title on any of the stated ways; or even on a combination of them. See Ajibulu v. Ajayi (2004) 11 NWLR (pt. 885) 458 and Akusobi v. Obineche (2004) 2 NWLR (pt. 857) 355. However, where the party pleads and relies on any of the stated ways, his title to the land will be determined on that way only. He cannot abandon a pleaded title and rely on another which is not pleaded. PER TSAMMANI, J.C.A.
WHETHER OR NOT EVIDENCE MUST ESTABLISH A LINK FROM THE FOUNDER OF THE LAND, DOWN THE LINE OF SUCCESSION, DOWN TO THE PLAINTIFF
The evidence led must establish a link or chain from the founder of the land, down the line of succession, from the intervening owners without any break or gap in the line of succession down to the plaintiff or claimant. See Anabaronye & Ors v. Nwakaihe (1997) 1 NWLR (pt.482) 374; Nkado & Ors v. Obiano & Ors (1997) 5 NWLR (pt.503) 31; Nwokorobia v. Nwogu & Ors (2009) 10 NWLR (pt.1150) 553 and Alikor v. Ogwo (2010) 5 NWLR (pt.1187) 281. PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Oyo State High Court sitting in the Oyo Judicial Division delivered by S. A. Akinteye, J., on the 1st day of August, 2007.
By a Writ of Summons and Statement of Claim dated the 13/3/2002 and 14/01/2003 respectively, the Respondents who were the Plaintiffs in the trial High Court claimed as follows:
1. Declaration that the Plaintiffs, the Alapinni family of Koso, Isale-Oyo, are entitled to the Statutory Right of Occupancy as Beneficial Owners to that parcel of land situates, lying, being at Koso area of Isale-Oyo as bounded on one side by Agberinde family quarters, Ajagbonran land on the second side, on the 3rd side Ojaala and Ajadi family quarters and on the 4th side a drainage channelization or rivulet as shown on the Survey Plan No: OT/OY/DS/2002/06 drawn and signed by Surveyor O. T. Ogunleke, B.Sc (Hons) DIP (Surveying ANIS and dated 11/9/2002).
2. Perpetual injunction restraining the defendant, his privies, agents, servants, workmen or whomever so called from remaining or continuing in occupation of the land.
1
3. N1,500.00 damages for trespass and forcible entry by the defendant into the land aforesaid.
Briefly, the claim of the Plaintiffs/Respondents is that they are descendants of Ologundudu, the 1st Alapinni of Koso, Isale-Oyo. That, the said Ologundudu and one Odunewu who was the 1st Mogba of Koso, Isale-Oyo accompanied Alaafin Atiba from Oyo-Ile to Oyo, and that it was Alaafin Atiba, the overlord and custodian of all land in Oyo, who granted a large track of land to Odunewu and gave him the authority to allocate same to various families such as Alapinni, Agberinde, Ekenu and Ajagbonran. The Plaintiffs/Respondents then claimed that, the land in dispute is part of the land granted by Mogba of Koso to their ancestor; Ologundudu over three hundred (300) years ago.
The Plaintiffs/Respondents also claimed that their ancestors planted palm trees, mango trees, teak trees, banana, guava and other crops on the land in dispute. Furthermore, that their family erected their shrines and Ebu Epo where their wives carry out palm oil processing. They then contended that, the Defendant/Appellant trespassed onto the parcel of land in dispute, bulldozed same, erected poultry shed and
2
built an office on the land, without their consent or permission. That on noticing that, they reported the development to the Mogba of Koso who invited the Defendant/Appellant but he declined to honour the invitation. That they accordingly took the matter to the Alaafin of Oyo who also invited him for clarification but the Defendant/Appellant refused to answer to the invitation. It is also the claim of the Plaintiffs/Respondents that, the land granted the Ajagbonran family where the Appellant comes from is different from the parcel granted to the Alapinni family.
On his part, the Defendant/Appellant contended that, the land in dispute is part of the land granted Ajagbonran at Koso, Isale-Oyo by the Alaafin directly and not Odunewu. That he is a descendant of Ajagbonran; and that it was the Ajagbonran family that granted him the parcel of land with the consent of the Alaafin of Oyo, for the purpose of establishing a poultry farm. That, he then proceeded to erect poultry sheds and a farm house on the parcel of land granted him by his Ajagbonran family and which land is now subject of this dispute. That at the time the land was granted to him, there were no
3
shrines or economic trees on the land in dispute. Furthermore, that he obtained a Certificate of Occupancy in respect of the land in dispute and has been in possession and occupation of the land undisturbed. He denied that Mogba of Koso and the Alaafin of Oyo Intervened in any dispute between him and the Plaintiffs/Respondents.
At the trial, the Plaintiffs/Respondents called four (4) witnesses and tendered two (2) exhibits while the Defendant testified for himself, called two other witnesses and tendered two (2) exhibits. At the close of evidence, learned counsel filed and exchanged Written Addresses. The learned trial Judge in a judgment delivered on the 01/8/2007, granted all the reliefs sought by the Plaintiffs/Respondents. Displeased with the judgment, the Defendant filed this appeal.
The extant notice of appeal is the Amended Notice of Appeal filed on the 01/6/2016 but deemed filed on the 4/10/16. It consists of twelve Grounds of Appeal. The parties then filed and exchanged Briefs of Arguments. The Appellant’s Brief is the Amended Appellant’s Brief of Arguments filed on the 9/11/2016 but deemed filed on the 06/4/2017. The Appellant
4
distilled seven (7) issues for determination as follows:
(i) Whether the land in Dispute does not form part of the land granted to the Appellant by Ajagbonran family with the consent of Alaafin of Oyo, Oba Lamidi Olayiwola Adeyemi III. [Grounds 2, 3, 5 and 7].
(ii) Whether the Respondents are estopped from denying Appellant’s title to the land in dispute. [Ground 4].
(iii) Whether the Learned Trial Judge has jurisdiction to declare Certificate of Statutory Right of Occupancy granted to the Appellant by Governor of Oyo State invalid. [Grounds 6 and 9].
(iv) Whether the finding and judgment of the Learned Trial Judge is supported by evidence available in this case. [Grounds 1 and 8].
(v) Whether judgment delivered by the Learned Trial Judge is a nullity. [Ground 10].
(vi) Whether failure of the Learned Trial Judge to pronounce on the issue of estoppel by conduct properly placed before him does not occasion miscarriage of justice. [Ground 11].
(vii) Whether the Learned Trial Judge’s reliance on the evidence of PW3 in reaching his conclusion in the case does not occasion miscarriage of justice. [Ground 12]
5
The Respondents’ Brief of Arguments was filed on the 12/9/2019 but deemed filed on the 28/01/2020. Therein, four (4) issues were raised for determination as follows:
1. Whether or not the trial Court has properly evaluated and appraised the traditional evidence and description of the land in dispute by the two parties in support of their cases before arriving at its judgment in favour of the Plaintiffs/Respondents and setting aside the Appellant’s Certificate of Statutory Right of Occupancy. [Grounds 1, 2, 7, 8, 9 and 12].
2. Whether or not the Judge’s refusal of the Appellant’s plea of acquiescence and laches even though not specifically pleaded by the Appellant as required by the Court’s rules of procedure in which case as a law is defeasible. [Ground 4].
3. Whether indeed and in truth the Plaintiff did sleep over their right as to tilt the judgment in favour of the Appellant for a re-trial.
4. Whether the judgment that has been delivered during an intervening impossibility that slightly affected the constitutional 90 days judgment delivery period by only one day is capable of your Lordships’ invalidation
6
of same and occasion a retrial in the face of the Appellant’s silence over the lapse at the trial. Is there a miscarriage of justice occasioned by the lapse?
After a careful review of the issues formulated by the parties vis-a-vis the evidence on record, I am of the view that only one issue will adequately address the appeal:
1. Whether the Plaintiffs/Respondents were able to establish their claims for declaration of title and injunction on the evidence adduced by them before the trial Court.
Now, learned counsel for the Appellant began by contending that, the Respondents’ case before the trial Court was that, the Appellant entered the land subject of the dispute, bulldozed same, cleared and erected a poultry farm known as Ayo Farms; while the Appellant as defendant contended that, the land in dispute forms part of the land granted to him by his Ajagbonran family with the consent of the Alaafin of Oyo; Oba Lamidi Olayiwola Adeyemi III. Referring to the testimonies of PW2 and PW3, and Exhibits “A” and “C”, learned counsel submitted that, the identity of the land was not in dispute. That, the parties were
7
agreed that the parcel of land granted the Appellant was five (5) acres, and therefore, the Respondents as Plaintiffs had the burden of proving that the land occupied by the Appellant is more than five (5) acres, but they failed to do so. The cases of Obineche v. Akusobi (2010) All FWLR (pt.533) 1839 at 1865 – 1866 paragraphs G – G and Mr. O. Eno-Osagie v. New Nigerian Bank Plc (2005) 3 NWLR (pt. 913) 513 at 537 were thus cited in urging us to hold that, the land in dispute forms part of the land granted to the Appellant by the Ajagbonran family with the consent of the Alaafin of Oyo.
Learned Counsel for the Appellant went on to submit that, the burden of proof in a civil matter by preponderance of evidence is always on the Plaintiff. That in a land matter, there are five (5) ways of proving title to land. The cases of Ewo v. Ani (2004) 1 SCNJ 272 at 280 – 281; Nneji v. Nwankwo (1996) 12 SCNJ 388 at 397 and Uka v. Irolo (2002) 7 SCNJ 137 at 160 – 161 were cited in support, and to submit that, the claim of the Plaintiffs/Respondents is that, the land in dispute form part of the land that was granted to them by Mogba of Koso on the
8
instruction of the Alaafin. It was also submitted that, the bone of contention in this case is that the land occupied by the Appellant is far in excess of the five (5) acres granted to the Appellant by the Ajagbonran family. That from the totality of the evidence adduced at the trial, the Respondents failed to discharge that burden. The cases of Alhaji Sadu Kayaoja v. Alhaji Ibrahim A. Bello & Ors (2005) 4 NWLR (pt. 915) 327 at 338 and Rabiatu Adebayo v. Rasheed Shogo (2005) 2 SCNJ 67 were therefore cited in support.
It was further submitted by learned counsel for the Appellant that, PW3 (Alhaji Salami Sairo) testified before the Court that he was in Court to give evidence on the authority of the Alaafin. That the witness, however, told the Court that he only got to know the parcel of land in dispute when the dispute arose and the Alaafin sent him to the land. That the implication of the testimony of the PW3 is that, the witness was not part of the transaction affecting the land in dispute before the commencement of hostilities between the parties. Furthermore, that the witness did not state in the course of his testimony that the Alaafin personally
9
went with him to the land and identified the particular area of land allocated to the respective parties to the land in dispute.
Learned Counsel for the Appellant went on to submit that the Appellant pleaded facts to the effect that the Respondents had acquiesced to his right to the land in dispute and further led evidence expatiating on the facts pleaded in paragraphs 9, 12, 13, 14, 24 and 25 of the Statement of Defence. That the Appellant also testified that the 1st Respondent paid him visits at his office on the land in dispute on several occasions, which evidence was neither controverted nor challenged by way of cross-examination. The cases of Sheu v. State (2010) All FWLR (pt. 523) 1841 at 1866; Obineche v. Akusobi (supra) and Amasike v. The Registrar-General, C.A.C. (2010) All FWLR (pt. 541) 1406 at 1469 were to submit that, in law, evidence which is not controverted are deemed admitted and the Court must rely on same in forming an opinion. Furthermore, that the Appellant who testified as DW3 stated that, he had been in actual and constructive possession to the knowledge of the Respondents without let or hindrance from the Respondents; for a period of
10
26 years before the Respondents instituted the action. The cases of Chief Frank Ebba v. Warri Ogodo (1984) 4 SC.84 at 89; Emmanuel Ozokpo v. Justina Paul (1990) 2 NWLR (pt.134) (494) 512; Ikuomola v. Oniwaya (1990) 4 NWLR (pt.146) 617, etc were cited in support.
Learned Counsel for the Appellant then cited the cases of Rafat v. Eills (1954) 14 WACA 430; Owodunni v. George (1967) 1 All NLR 172; Aileru v. Ademuoye (1967) 1 All NLR 271; Ude v. Osuji (1998) 10 SCNJ 75 at 82; Lawal v. Union Bank Plc (1995) 2 SCNJ 132 at 145, etc to submit that, estoppel by conduct or proprietary estoppel arises where a person incurs expenditure on land or otherwise prejudices himself in the belief that he is the owner. That for proprietary estoppel to apply, the following conditions must be present:
(i) The party relying on the plea of estoppel must have expended money or otherwise prejudiced himself;
(ii) He must have believed that he is the owner of an interest in the property; and
(iii) The owner must have been aware that the other party was incurring the expenditure under the mistaken belief.
It was then submitted that the evidence from the Appellant is
11
that, the land was granted in 1976, the Appellant surveyed the land, and secured a Certificate of Statutory Right of Occupancy on the land in 1981. That, the Appellant cleared the land and erected some pens and other structures on the land. Furthermore, that the Appellant has since been rearing fowls on the land while leasing part of it to Bronco Farms Limited and Amo Byng Farm Limited. We were urged to hold that the Appellant did not procure the Certificate of Occupancy (Exhibit “D”) fraudulently as it should be judicially noticed that the certificate was issued after due advertisement as required by law. Furthermore, that, though the Respondents contended that the Appellant entered the land in dispute about 9 years ago, the Appellant had led evidence to the effect that he has been on the land for over 31 years. The cases of Wilson v. Oshin (1994) 9 NWLR (pt.366) 90; A.G. Rivers State v. A.G. Akwa Ibom State (2011) All FWLR (pt.579) were then cited to submit that, the Respondents are therefore estopped from denying the Appellant’s title to the land in dispute.
It was further submitted by learned counsel for the Appellant that, learned
12
counsel had addressed the trial Court extensively on the issue of estoppel by conduct in tandem with the pleadings and evidence before the Court but the trial Court failed to make any findings on it. The cases of S.P.C. Co. Nig. Ltd v. Mabel Addico & Anor (2016) All FWLR (pt.816) 439 at 469 paragraph F and Mr. O. Eno Osagie v. New Nigerian Bank Plc (2005) 3 NWLR (pt.913) 513 at 537 were cited in support; and to urge us to hold that, the failure of the learned trial Judge to resolve the issue occasioned a miscarriage of justice.
Learned Counsel for the Appellant drew our attention to the reliefs claimed by the Respondents, to contend that the Courts have held in plethora of authorities that the Court is not a Father Christmas. He then cited the cases of Osuji v. Ekeocha (2009) 7 SCNJ 248 at 270 and Chief Appolos N. Amadi v. Felix Chinda & Ors (2009) 4 SCNJ 131 at 141 to submit that, a careful reading of the reliefs sought in the Statement of Claim reveals that the Respondents are not asking for a Declaration that the Certificate of Statutory Right of Occupancy granted to the Appellant by the Governor of Oyo State (Exhibit “D”) should be
13
declared invalid. That in any case, the land involved in this case is only a small portion of the larger parcel of land covered by Exhibit “D” but by virtue of the judgment of the trial Court, the larger portion of the land which was not in dispute had been affected by the judgment. The cases of Bola Ige v. Olunloyo & Ors (1984) 1 S.C.158 at 276; F. A. Akinbobola v. Plisson Fisko Nigeria Limited (1991) 1 SCNJ 129 at 133 were then cited to urge us to hold that the trial Court lacked jurisdiction to declare the Statutory Certificate of Occupancy granted to the Appellant as invalid.
In response, learned counsel for the Respondents submitted that, where the trial Court gave sufficient consideration to the evidence before him and drew correct inferences thereon, the Appellate Court will approach such findings with caution. That the Appellate Court will only intervene where the trial Court failed in its primary duly to evaluate the evidence adduced before him. The cases of Enang v. Adu (1981) 11 – 12 S.C.25 at 38 – 40; Trustees of Apostolic Faith Mission v. James (1987) 3 NWLR (pt.61) 556; Balogun v. Akanji (1988) 1 NWLR (pt.70) 301
14
and Abraham v. Ige (1960) NMLR 115 – 120 were cited in support. That in the instant case, the learned trial Judge properly considered the traditional histories of the parties, the evidence of boundary men and the submissions of counsel and rightly gave judgment for the Plaintiffs. That, the historical evidence given by the Plaintiffs/Respondents in proof of their radical title to the parcel of land in dispute granted by the Alaafin of Oyo about 300 years ago, from their ancestors to the Respondents sufficiently proved their title to the land in dispute. The cases of Idundun v. Okumagba (1976) 1 NMLR 200 and Eden v. Oni (1963) 1 S.C.N.L.R. 268 were cited in support.
The unreported judgment of this Court in Adebayo Ayoola v. Alimi Lawal: Appeal No: CA/I/105/2010 delivered on the 30/11/2012 was then cited to submit that, where both sides to a dispute claim ownership through traditional history, the side that gives better evidence of the traditional history will have title declared in his favour. The case of Osu v. Igiri (1988) 2 SCNJ 18 was cited to submit that, in the instant case, the learned trial Judge properly evaluated the Respondents’
15
evidence and concluded that it is cogent, reliable and more dependable than that of the Appellant and rightly resolved the issue in their favour. In other words, that the Plaintiffs/Respondents discharged the burden placed on them as stated in the cases of Ogunleye v. Oni (1990) 2 NWLR (pt.135) 745; Mogaji v. Cadbury (1985) 2 NWLR (pt. 7) 393; Runsewe v. Jimoh Odutola (1996) 2 SCNJ 33, Alli v. Alesinloye (2000) 16 W.R.N.1; etc.
On the issue of the identity of the land in dispute, learned counsel for the Respondent submitted that the land in dispute does not fall within Ajagbonran’s family land but is evidenced by the Alaafin’s Memorandum of Grant and the Certificate of Statutory Right of Occupancy. That indeed, the PW3 clarified the issue when he testified that the land granted the Defendant/Appellant is not the same as that of the Respondents. Furthermore, that the law is that, he who alleges must prove, and that it was the Appellant who joined issue with the Respondents on the identity of the land in dispute when he tendered his own Survey Plan. That the trial Court compared same with the Respondents’ Plan and upon consideration of the
16
totality of the evidence adduced at the trial, came to the conclusion that, the Appellant was granted 5 acres of land at the back of L. A. School, Koso, and that there is nothing to suggest that the land granted the Appellant is the land in dispute since its boundaries are not indicated on the Plan (Exhibit “B”).
Learned Counsel for the Respondents went on to submit that it is the duty of the Appellant to lead evidence showing that he has not occupied land more than what is depicted in Exhibit “B”. That in any case, the learned trial Judge found that the parties know the land in dispute and therefore, the identity of the land is not in dispute. That in so finding, the learned trial Judge rejected the Appellant’s nebulous Exhibit “B”. The case of Gbadamosi v. Dairo (2007) 1 SCNJ 444 at 453 and Ayuya v. Yonrin (2011) All FWLR (pt.583) 186 were cited in support.
It was also submitted by learned counsel for the Respondent that, the radical ownership of the land as vested on the Plaintiffs/Respondents is indisputable and so the Statutory Right of Occupancy on which the Defendant/Appellant based his title as to
17
override an existing vested Customary Right of Occupancy is invalid and a nullity in law. Referring to Sections 37 and 38 of the Land Use Act and the case of Olohunde v. Adeyoju (2010) 14 W.R.N. 160, learned counsel submitted that, upon the preponderance of evidence, prior to the Memorandum from the Alaafin (Exhibit “B”), the Customary Right of the Respondents has been in existence for over 300 years, and that same has not been revoked by the Alaafin. That in the circumstances, that right still subsists under the Land Use Act, and therefore, the validity of the Certificate tendered by the Appellant to support his ownership of the land in dispute is tenuous, null and void. It was thus submitted that, the learned trial Judge was therefore right when he declared the Statutory Certificate of Occupancy null and void. Learned Counsel then submitted that, the argument of the Appellant that the Respondents did not ask that the Certificate be voided is of no moment as the order made by the trial Court is a consequential one.
On the issue of acquiescence and laches, it was submitted that the Appellant’s reliance on traditional history has made
18
his claim based on traditional history and/or acts of possession otiose. That the claims on those facts are rooted in the radical title pleaded. It was accordingly submitted that the trial Court having knocked out his claim based on traditional history, he cannot turn to the claim based on possession to grant title to the Appellant. The case of Fasoro v. Beyioku (1988) 2 NWLR (pt.76) was cited in support. In other words, since the Appellant’s radical claim of title has not been proved, acts of ownership or possession can no longer be considered to consider whether or not to grant title. The case of Runsewe v. Odutola (1996) 3 SCNJ was cited in support.
On the order of the trial Court that invalidated the Certificate of Occupancy, learned Counsel for the Respondent contended that, the order made by the trial Court cannot amount to a misdirection or error in law. That in making the order, the learned trial Judge properly weighed the evidence before him before making the order. Furthermore, that the Court made a right finding that the Respondents did not sleep on their right as they constantly monitored the aggressive incursions of the Appellant and
19
reported same to the authorities. That in any case, as required by the Rules of the trial Court, the Appellant did not specifically plead acquiescence or laches. We were accordingly urged to dismiss the appeal as lacking in merit.
Now, it is apparent from the claim before this Court, in this case, that the main or principal claim of the Plaintiffs/Respondents is for declaration of title to land. Prayers 2 and 3 are dependent and therefore ancillary to that main relief sought. It is the settled law that in an action for declaration of title to land, just like in all declaratory actions, the burden lies throughout on the Plaintiff to adduce sufficient and credible evidence that will satisfy the Court that he is entitled to the relief sought. Therefore, declaratory reliefs are not granted in the absence of credible evidence from the Plaintiff, or because the Defendant had made admissions or failed to lead evidence. It also means that a plaintiff in an action for declaration of title to land is required, in proving his title to the land in dispute, rely on the strength of the evidence adduced by him. Such plaintiff may however take the benefit of that aspect
20
of the defendant’s case that supports his claim. See Anthony Osuji v. Ogbonna Osuji & Anor (2014) LPELR – 23769 (CA); Chief L.K. Ajibare & Anor v. James Akomolafe & Anor (2011) LPELR – 3948 (CA); Johnson Ofigo v. Gilbert Ezeoke (2019) LPELR – 46953 (CA); Owhonda v. Ekpechi (2003) 17 NWLR (pt.849) 326 and Elias v. Omo-bare (1982) All N.L.R.75. Thus in the case of Akinduro v. Alaya (2007) 15 NWLR (pt.1057) 312, Aderemi, JSC held as follows:
“It is trite law that a plaintiff who claims declaration of title to land has a compelling duty to establish his case by credible evidence to the satisfaction of the Court; the weakness of the case for the defendant will not avail him unless it is seen that there are averments in the statement of defence or even the testimonies of the defendant and/or his witnesses which support the case of the plaintiff….”
It therefore follows that, in determining the claim, the trial Court must start by considering the evidence led by the plaintiff, so as to see whether the plaintiff has led evidence which is satisfactory. If the evidence adduced by the plaintiff is
21
unsatisfactory, then he has not made out a prima facie case, in which case, the trial Court does not have to consider the case of the defendant at all. See Sanusi v. Ameyogun (1992) 4 NWLR (pt.237) 527 at 547; Duru v. Nwosu (1989) 4 NWLR (pt.113) 24, Oyefeso v. Coker (1999) 1 NWLR (pt.588) 654 at 660 and Agu v. Nnadi (1999) 2 NWLR (pt.589) 131 at 142. This is based on the principle that, a defendant need not call evidence unless where he has filed a Counter Claim. In other words, a defendant who has not filed a counter claim, has no obligation to lead evidence at the trial as in such situation there is no burden on him to proof anything. His duty in such a circumstance is merely to defend the claim. Thus, where a defendant who has not Counter-Claimed adduces evidence, such evidence cannot be raised to the level of a Counter-Claim in the absence of such specific claim. Such evidence he has led, no matter its cogency, will go to his defence only. See Adeleke v. Iyanda (2001) 6 S.C.1; Nkwocha v. Ofurum (2002) 6 NWLR (pt.761) 506; Atanda v. Ajani (1989) 3 NWLR (pt.111) 511 and Diko v. Ibadan South-West L.G. (1997) 2 NWLR (pt.486) 235 at 244. See also
22
Chief Patrick S. Okoye & Ors v. Edeani Nwavu & Ors (2003) LPELR – 12330 (SC) and Dim v. Enemuo (2009) 10 NWLR (pt.1149) 353 at 394 – 395 paragraphs H – B.
It therefore means that, in an action for declaration of title to land, where the defendant has not Counter-claimed, the only duty of the trial Judge is to ascertain from the evidence adduced by the plaintiff, whether the claimant has discharged the onus of proof on him so as to entitle him to the declaration sought. Thus, where the Court finds from the totality of evidence adduced by the plaintiff, that the Claimant has prima facie proved his title and in the absence of rebuttal evidence from the defendant, title will be declared for the plaintiff. However, where the Court finds that the evidence adduced does not establish the plaintiff’s claim or title, it would mean that the claim has failed and the duty of the Court at that stage is to dismiss the Claim. The Court cannot, because it has dismissed the plaintiff’s action, declare title in favour of the defendant. The plaintiff may discharge the burden by leading credible evidence in order to prove his title to the land he claims
23
by any of the followings ways:
(a) Proof by traditional evidence
(b) Proof by production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody.
(c) Proof by acts of ownership over the land in dispute such as selling, leasing or making a grant, renting out all or any part of the land, or farming on it or portion thereof, extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the person exercising such proprietary acts are the true owners of the land
(d) Proof of acts of possession and enjoyment of the land which prima facie may be evidence of ownership, not only of the particular piece of land with reference to which such acts are done, but also of other land so situated or connected there with by location or similarly that the presumption under Section 46 of the Evidence Act applies and the inference can be drawn that what is true of the piece of land is likely to be true of other pieces of land.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owners of such connected
24
or adjacent land would in addition be the owners of the land in dispute.
It should be noted that the above stated ways of proving title are independent of each other. It therefore means that, a plaintiff may predicate his claim of title on any of the stated ways; or even on a combination of them. See Ajibulu v. Ajayi (2004) 11 NWLR (pt. 885) 458 and Akusobi v. Obineche (2004) 2 NWLR (pt. 857) 355. However, where the party pleads and relies on any of the stated ways, his title to the land will be determined on that way only. He cannot abandon a pleaded title and rely on another which is not pleaded.
In the instant case, the plaintiffs/Respondents pleaded and relied for their claim of title to the land in dispute, on traditional evidence. It is the law that where a party predicates his claim of title on traditional history, he is obligated to specifically and clearly plead and adduce credible evidence of the following facts:
(a) Who founded the land;
(b) How that person founded the land; and
(c) The particulars of the intervening owners through whom he claims.
In other words, the plaintiff who relies on traditional history in proof of
25
a claim for declaration of title to land must plead and lead evidence to establish the root of his title. The evidence led must establish a link or chain from the founder of the land, down the line of succession, from the intervening owners without any break or gap in the line of succession down to the plaintiff or claimant. See Anabaronye & Ors v. Nwakaihe (1997) 1 NWLR (pt.482) 374; Nkado & Ors v. Obiano & Ors (1997) 5 NWLR (pt.503) 31; Nwokorobia v. Nwogu & Ors (2009) 10 NWLR (pt.1150) 553 and Alikor v. Ogwo (2010) 5 NWLR (pt.1187) 281. Thus, in the case of Sanni – Omotosho v. Obidairo (2014) All FWLR (pt.745) 210, My learned brother, Iyizoba, JCA held as follows:
“It is also the law that a Plaintiff who relies on traditional history in proof of a claim for declaration of title to land must lead evidence to show the root of his title; that is, how the land devolved over the years on his predecessors-in-title in his family without any break until the land got to him…”
That being so, it will not be sufficient for a plaintiff relying on traditional history to merely plead and lead evidence that, himself or his
26
predecessors in title had owned and possessed the land in dispute from time immemorial.
In the instant case, the Respondents as plaintiffs pleaded at paragraphs 1, 2, 3, 4, 5 and 7 of the Statement of Claim as follow:
1. The Plaintiffs are the descendants of Ologundudu, the 1st Alapinni of Koso, Isale-Oyo, now called Alapinni family.
2. Alapinni Ologundudu together with Odun-Ewu, the first Mogba of Koso, Isale-Oyo arrived at Oyo with Alaafin Atiba from Oyo Ile.
3. Odun-Ewu, the Mogba of Koso was made the paramount head of all the communities in Isale-Oyo which were settled at the place by Alaafin Adeyemi 1 who did so after three settlement attempts at different when Sango his father to live in the palm kernel oil processing vicinity.
4. Alaafin Atiba appointed Odun Ewu his vassal lord and granted him a large track of land with power to allot to any other community within the clear (sic) as its own family communal land for allocation to its individual family viz: – the Ekerin Koso family, Alapinni Koso, the Plaintiff, Ajagbonran Koso family itself, Agberinde.
5. Pursuant to the foregoing, Odun-Ewu allotted to Ologundudu all that
27
parcel of land properly delineated and described and edge “RED” in Survey plan OT/OY/DS/2002/06 drawn by Surveyor O.T. Adeleke featuring on the 1st side by Agberinde/Ekerinkoso, 2nd side by Obanilete compound, Oyo, on the 3rd side by Ajagbonran family land, on the 4th side by Ojaala Ajadi family Quarter, KosoIsale Oyo Commercial Grammar School Oyo, there is a rivulet or drainage channel in the middle of the land plaintiffs plead and rely on the Survey Plan.
7. The plaintiffs starting from Ologundudu their ancestor and his descendants, Ojo Ailoro, Okelade, Binutu, Kolayode, Sangoyokan, Adeoye, Ojofinni, Ijaduola, Ojelabi Atanda the Plaintiffs family have been cultivating the land in dispute for 300 years as their farm land under customary law of Oyo and Yorubas as ones (sic) of the early settlers from Oyo Ile with Alaafin Atiba. They planted palm trees, mango trees, gedu trees, cashew, guava, banana and all sorts of cash and economic crops.
Determining on the issue, the learned trial judge held at page 51 lines 14 – 27 of the record of appeal as follows:
“From the pleadings of the plaintiffs and the evidence of their
28
witnesses, it is clear that the plaintiffs are relying on traditional evidence as basis for their claim to title of the land in dispute.
The 2nd, 3rd & 4th PWs gave evidence of the traditional grant of the land to the plaintiffs. 2nd and 4th PWs stated that the land was granted to the plaintiffs’ grantor by Odunewu, the Mogba of Kosowho had the authority to grant land to families in Koso through the Alaafin of Oyo, traditional overlord over all communal land in Oyo, 2nd PW’s family Ekerin family was similarly granted land by Mogba of Koso likewise Ajagbonran family, Yaye family, Agberinde family and others.
The 4th PW gave the boundaries of the land in dispute and also how his ancestor was granted the land over 300 years ago and listed his family members who had used or managed the land the crops that were planted there and the fact that his family shrines were also located on the land in dispute. He said the land granted to the defendant with the consent of the Alaafin does not extend to the land in dispute.”
It would be seen that the Plaintiffs/Respondents premised the foundation of their title to the land in dispute
29
through a grant from the 1st Alaafin of Oyo, Alaafin Atiba about three hundred (300) years ago. In other words, that, the land in dispute is part of a vast expanse of land founded by Alaafin Atiba, who appointed one Odun-Ewu as the first Mogba of KosoIsale-Oyo which is also part of the vast expanse of land founded by the Alaafin. That Odun-Ewu, the 1st Mogba of KosoIsale-Oyo was given authority by the Alaafin to allot portions of the land as settlement to different families. According to the Plaintiffs/Respondents, their ancestor or progenitor, Ologundudu came together with Odun-Ewu along with the Alaafin and that Ologundudu became the 1st Alapinni of KosoIsale-Oyo. In other words, the land was granted to their ancestor-Ologundudu by the Alaafin of Oyo through Odun-Ewu, the 1st Mogba of Koso Isale-Oyo. This much was also the finding of the learned trial Judge at page 52 lines 15 – 21 of the Record of Appeal; as follows:
“From the evidence before the Court, it could be said that there is a common ground as regards the origin of each of the party’s claim to the land in dispute. Whether it is through Odun-Ewu who got the authority of the
30
Alaafin to allocate land to various families in Koso or through the Alaafin himself, it boils down to the same position that the Alaafin is vested with power over all communal land in Oyo. It therefore follows that Alaafin is the original grantor of land to the ancestor of both the Plaintiffs and the Defendant, that is, to Alapinni and Ajagbonran families.”
It is not in doubt therefore, that the Plaintiffs/Respondents were able to adduce credible evidence of the founding of the land. In other words, the plaintiffs/Respondents were able to establish that their progenitor Ologundudu first got title to the land in dispute through a grant from Alaafin of Oyo-Alaafin Atiba. However, that is how far their evidence went. They however did not plead nor lead evidence on the root of their title to the land. They had the burden to plead and lead evidence showing the root of their title to the land in dispute. In other words, the plaintiffs had the burden to plead and lead evidence showing how the land devolved over the 300 years from their progenitor Ologundudu down the line to them. That would involve pleading the names of their predecessors-in-title from
31
Ologundudu down to them as the present owners. This, the Plaintiffs/Respondents failed to do. It was not sufficient for the Respondents to merely list the names of persons, as they did in paragraph 7 of the statement of claim who “have been cultivating the land in dispute for 300 years as their farmland under the customary law…” That pleading did not establish any chain of succession of the Alapinni family over the land in dispute. In other words, the pleading and evidence required to proof title to the land in dispute through traditional history was inadequate to establish and determine title in favour of the Plaintiffs/Respondents. If the learned trial Judge had properly appraised the pleadings and evidence of the Respondents, he would have undoubtedly found that the Respondents failed to proof their title to the land in dispute through traditional history.
Now, it is the law that where a plaintiff in an action for declaration of title to land fails to proof his claim of title by the method he has pleaded, the only duty of the trial Court at that stage is to dismiss his claim. In other words, where a plaintiff fails to discharge the
32
burden of proving his root of title to the land in dispute as pleaded by him, he cannot be entitled to the declaration of title sought. See Owhonda v. Ekpechi (supra); Fasoro v. Beyioku (1988) 2 NWLR (pt.76) 263; Kalio v. Woluchem (1985) 1 NWLR (pt.4) 610; Adeniran v. Ashabi (2004) 2 NWLR (pt.857) 375; Ndukuba v. Izundu (2006) All FWLR (pt.343) 1740 and Yusuf v. Adegoke (2007) 11 NWLR (pt.1045) 332 at 374. Thus, in Nnadozie & Ors v. Mbagwu (2008) 3 NWLR (pt.1074) 363, Aderemi, JSC held that:
“In land matter, which this case is, if a Plaintiff fails to prove the root of his title, it is trite that his case stands dismissed in toto.”
On the above cited authorities therefore, the Plaintiffs/Respondents having failed to prove the root of their title to the land in dispute, the only duty of the trial Court in the circumstances was to dismiss their claims in toto. Having failed to do so, this Court stands in the position to do what the trial Court failed to do. On that note, the Plaintiffs claim is hereby dismissed in toto. The Plaintiffs/Respondents are not entitled to any of the reliefs claimed by their Statement of Claim.
33
Having thus found and held, I do not see the need to delve into any other issue raised by the Appellants in this appeal. To do that, will be embarking on an academic exercise which I am not prepared to invest the valuable judicial time I have in doing. On that note, it is my view that this appeal has merit and is accordingly allowed. The judgment of the Oyo State High Court, holden at Oyo and delivered on the 1st day of August, 2007 in Suit No: HOY/16/2002 is hereby set aside.
I award the sum of One Hundred Thousand Naira (N100,000.00) as the cost of this action in favour of the Appellant to be paid by the Respondents.
JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my Lord, HARUNA SIMON TSAMMANI, JCA Just delivered. My learned brother has dealt with the issues in this appeal and I agree with the reasons given as well as the conclusion reached that this appeal has merit.
I also agree that the Judgment of Oyo State High Court delivered on the 1st day of August, 2007 in Suit No: HOY/16/2002 be set aside.
I abide by the consequential order made in the said lead Judgment.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of
34
reading in advance, the lead judgment of my learned brother, Haruna Simon Tsammani. JCA. I completely agree with him that the Respondents as Claimants had a duty to plead and lead evidence of how the land devolved on them from their progenitor which they failed to do. It Is settled law that proof of title to land, where the root of title is traced to ancestors is a question of fact. Therefore, where a Claimant relies on traditional history to prove ownership of land, he has a duty to plead the names of his ancestors, the original founder of the land and link them through successive generations to the last person he inherited from. He must be familiar with the substance of history and must also lead credible evidence in support of the history without leaving gaps which are difficult to explain. See Ordu V. Elewa (2018) 17 NWLR (Pt. 1649) 515; Faleye V. Dada (2016) 14 NWLR (Pt 1534) 80; Akanbi V. Salawu (2003) 13 NWLR (Pt. 838) 637. The Respondents herein as Claimants had a duty to plead facts and adduce evidence as to the following:
(1) the founding of Koso, Isale Oyo in general, the land in dispute in particular;
(2) the persons who founded the
35
land and exercised original acts of ownership, and
(3) the persons who have held title or on whom title has devolved in respect of the land since the founding before the Claimants/Respondents acquired control of it. A Claimant who seeks declaration of title to land must succeed on the strength of his case and not the admission or weakness of the case of the Defendant. See AJIBOYE V. ISHOLA (2006) 13 NWLR (PT. 998) 628; MOMOH V. UMORU (2011) 15 NWLR (PT. 1270) 217; ODUNZE V. NWOSU (2007) 13 NWLR (PT. 1050) 1. The Respondents/Claimants failed to meet the requisite criteria. I agree with my learned brother when he held that the Respondents failed to establish the chain of succession of the Alapinni family over the Land in dispute.
In AWODI V. AJAGBE (2015) 3 NWLR (PT. 1447) 578, the Supreme Court per Rhodes-Vivour, JSC held as follows:
“The law Is now settled that where a person relies on traditional history as his root of title to land, the onus is on him to plead the root of title and the names and history of his ancestors. He should lead evidence to show same without leaving any yawning gap. A Court has no jurisdiction to supply any
36
missing link in a genealogical tree from progenitors to a Claimant. See Mogaji V. Cadbury (1986) 2 NWLR (Pt. 47) 393; Anyanwu V. Mbara (1992) 5 NWLR (Pt. 242) 386; Akinloye V. Eyiyola (1968) 2 NMLR 92, Owoade V. Omitola (1988) 2 NWLR (Pt. 77) 413 and Odi V. Iyala (2004) 4 SCNJ 35 at 54.”
This Court cannot supply facts and evidence which have not been placed before it by the Respondents/Claimants. The lower Court was therefore wrong when it held that they established their claim.
It is for the foregoing and the fuller reasons given in the lead Judgment that I also hold that there is substance in this appeal. I also allow it and abide by the consequential Orders in the lead Judgment including the order as to costs.
37
Appearances:
O.F.A. Adeosun, Esq. For Appellant(s)
L.A. Olagunju, Esq. (holds the brief of A. O. Oyeduntan, Esq.) For Respondent(s)