BURAIMOH OYADIJI v. OSUOLALE OLANIYI & ORS(2004)

BURAIMOH OYADIJI v. OSUOLALE OLANIYI & ORS

(2004)LCN/1619(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of July, 2004

CA/I/295/2001

RATIO

LAND LAW: WHAT SHOULD BE PLEADED FOR A SUCCESSFUL CLAIM TO TITLE ON LAND BASED ON TRADITIONAL HISTORY

It is the law that in order to succeed in a claim of title to land based on traditional history; it is incumbent on the claimant relying on it to plead and lead evidence to show: (1) how his ancestors derived title to the land, (2) the person who founded the land and exercised original acts of possession, (3) particulars of the intervening owners through whom the party or parties claim, (4) the person or persons on whom the title in respect of the land devolved since its founding. See Ezewusim v. Okoro & Anor. (1993) 5 NWLR (Pt.294) 478. Where however, the line of succession is not satisfactorily traced by the plaintiff his claim must be rejected by the court. In other words, there must be no gap in the line of succession up to the plaintiff laying claim. See the cases of Alade v. Awo (1975) 4 SC 215; Kalio v. Woluchem (1985) 1 NWLR (Pt.4) 616; Dike v. Okoloedo (1999) 10 NWLR (Pt.623) 359 and Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 393. PER IBIYEYE, J.C.A.

LAND LAW: WHAT IS THE EFFECT OF PARTITIONING OF FAMILY PROPERTY WHICH WAS THEN SPLIT INTO OWNERSHIP

The effect of partitioning is that the property which had hitherto belonged to the family is split up into ownership of the constituent members of the family. It puts an end to the communal ownership. When the division is among constituent branches of the family, a new family ownership is created. See Bello (Selia) v. Udoye (2004) 19 WRN 58 at 85, Olorunfemi & Ors. v. Asho (supra) at 53 and Ojelade v. Soroye (1998) 5 NWLR (Pt.549) 284 at 304. In the instant case, no proper partition was effected in order to confer ownership of the land in dispute on the appellant. PER IBIYEYE, J.C.A.

JUSTICES

SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria

Between

BURAIMOH OYADIJI
(For himself and on behalf of Oyadiji family of Obaagun) Appellant(s)

AND

OSUOLALE OLANIYI
2. MADAM OYALEYE ADEBIYI
3. MADAM ABIOLA OYAJIMI ONI
4. ADELOWO GABRIEL OLAWALE
5. KOLAWOLE OLANIYI
(For themselves and on behalf of Madehun family of Obaagun) Respondent(s)

IBIYEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Yussuff, J. of the Ikirun Judicial Division of the Osun State High Court of Justice, delivered on the 12th day of March, 1999.
The plaintiffs who initiated the case appealed from in a representative capacity jointly filed a statement of claim and a reply to the statement of defence. The plaintiffs in paragraph 48 of their joint statement of claim sought the following reliefs:
“48(1) Declaration that the plaintiffs are entitled to the statutory right of occupancy in respect of that piece or parcel of land situate, lying and being at Igbolamu village, Obaagun in Ifelodun Local Government Area, Osun State measuring 9,280 hectres and bounded by:
(i) Akesin family land/Babawale family land;
(ii) Timothy Babalola/Ojo/Gbadamosi Idowu family land
(iii) Funfun stream
(iv) Iragbiji community land/Salawu Oyebanji family land and more particularly described in the survey plan No. OS/0609/96/D/009 dated 17/9/96 and drawn by O. K. Oluokun a registered surveyor.
(2) N5,000.00 damages being damages for trespass.
(3) Perpetual injunction restraining the defendants, his agents, servants, privies from committing further acts of trespass on and/or selling portion of the land.”
The defendant, in his statement of defence, denied substantial parts of the averments of the statement of claim and in paragraph 39 of the statement of defence urged the trial court to dismiss the plaintiffs’ claim on the grounds that it is unwarranted, frivolous and misconceived.
At the trial seven and nine witnesses respectively testified on behalf of the plaintiffs and defendant.
The plaintiffs through their witnesses who included some of them traced their genealogy to Afaigun, who was the original settler on a vast stretch of land including the land in dispute at Obaagun and that Afaigun was the first holder of Olobaagun as its traditional ruler. Before Afaigun’s demise, he granted the vast land to his son, Larosin. Kayode, the son of Larosin inherited the land. The P.W.1, P.W.3, P.W.4, P.W.6 and P.W.7 essentially testified that Oba Kayode, I absolutely granted his daughter, Moradehun, the vast land he inherited from his father Larosin. Both the P.W.3 and the P.W.7 particularly testified that the land including the land in dispute absolutely granted to Moradehun was never partitioned. There is evidence that the defendant trespassed on the land in dispute when he sold it in 1993 to a person who had started building on it and that indeed the defendant laid claim to it. The defendant asserted ownership on the land in dispute. There is also testimony of long possession of over 200 years on the land in dispute by the forebears of the plaintiffs.
On his part, the defendant’s nine witnesses largely testified that the land in dispute was granted to Odewale, the ancestral father of the defendant, by Oba Adeyanju. The defendant testifying as the D.W.8 denied that Kayode gave the land in dispute to Moradehun. He testified instead that the land in dispute was at first partitioned between Ojo and Dada Aro and that later on the portion given to Ojo was divided into two between Oyawale and Oyadiji, whose mothers were Moradehun and Kaliatu respectively. There is, however, no evidence of how the partition of the land in dispute was effected. He admitted that Moradehun was the daughter of Kayode.
Both the plaintiffs and the defendant identified survey plans drawn at their instances.
At the close of the case, the learned Counsel for both the plaintiffs and the defendants addressed the court. In a considered judgment, the learned trial Judge held that the plaintiffs’ relief in paragraph 48(1), (2) and (3) of the statement of claim were meritorious and granted them.
The defendant, now appellant, was dissatisfied with the decision of the trial court and appealed to this court on six grounds, including one additional ground of appeal for which he sought and got leave of this court.
The appellant distilled the following three issues from the six grounds of appeal:
(1) Whether the traditional evidence relied upon and adduced by the defendant/appellant was sufficiently proved as required by law to establish the root of title of the defendant/appellant.
(2) Whether the issue of long and undisturbed possession of the defendant/appellant to the land in dispute was adequately considered by the trial court.
(3) Whether the trial court had adequately considered the evidence before it and evaluated the same to justify granting the prayers of the plaintiffs/respondents”
The plaintiffs, now respondents, on their part proffered the following two issues as arising for the determination of this appeal:
“(i) Whether the evaluation of the evidence by the trial court was proper, adequate and not perverse.
(ii) Whether or not the defences of grant, long possession and partition raised by the defendant/appellant were adequately established by him in the circumstances of this case.”
At the hearing, the learned Counsel for the parties adopted and relied on the respective briefs of argument of the appellant and the respondents.
I have closely studied the two sets of issues adumbrated by the parties and I am of opinion that all of them deal with evaluation of evidence by the trial court. I shall therefore determine this appeal on the evaluation of available evidence before the trial court.
The learned Counsel for the appellant submitted that the appellant based his ownership of the land in dispute on a grant made to his ancestor, Odewale, by Oba Adeyanju after the Jalumi War of 1896. He cited the case of Idundun v. Okumagba (1976) 9-10 SC 127 on the five ways of establishing ownership of land. He further submitted that the learned trial Judge was in error to have granted the reliefs sought by the respondents when he had held that “there is no doubt about a mixing up of history.”
Learned Counsel, in order to support the claim based on undisturbed possession, contended that the act of possession and enjoyment of land may be established by evidence of ownership not only on that land over which the acts are done but also of other lands connected with it and he cited in support the case of Umojiako v. Ezenamuo (1990) 1 NWLR (Pt.126) 253 at 272.
The learned Counsel contended that the learned trial Judge failed to consider the evidence of the D.W.8 (the defendant) that Odewale was not at Obaagun during the reign of Oba Kayode. He also pointed out that the learned trial Judge failed to consider the evidence of D.W.1 and D.W.2 who are boundary men to the defendant’s land. He submitted that boundary men are important in the determination of ownership of land in dispute as propounded in the case of Gambo v. Turdan (1993) 6 NWLR (Pt.300) 500 at 505.
As regards the issue of partition, learned Counsel argued that the defendant’s testimony on it was corroborated. He referred to exhibit C prepared by Chief Aro Oyagoke Dada as evidence of ownership by the defendant of the portion that was partitioned to him. He submitted that partition of land could be by deed and in customary law oral partition is valid and he relied on the case of Olorunfemi v. Asho (2000) 2 NWLR (Pt.643) 143 at 156. He urged the court to allow the appeal.
In response, the learned Counsel for the respondents adopted the five ways of proving title to land referred to the learned Counsel for the appellant. He relied on the ldundun v. Okumagba (supra) and Agwan Obioha & Ors. v. Chief Nwafor Duru & Ors. (1994) 10 SCNJ 48; (1994) 8 NWLR (Pt.365) 631. He submitted that the plaintiff need not establish all the five accepted methods of proving title as proof of one of them is sufficient and cited in support the case of Ogba v. Onwuzo (2000) FWLR (Pt.17) 176.
Learned Counsel for the respondents contended that both parties elivsion grant to establish their individual claim to the land in dispute. In support of the grant, the respondents relied on the evidence of the PW.1 (the Baale of Igbolami), the P.W.3 (the 1st plaintiff) and the PW4 (Oba Okunade Adebisi Kayode II – the incumbent Olobaagun of Obaagun, direct descendant of the original settler on the land in dispute) and the PW.6 (the Mogaji of Aro Obaagun). He argued that where title is derived by grant or inheritance, the traditional history or evidence of acts of continuous exclusive possession should be given to justify it. He set out what the claimant’s pleading should contain. He contended that the plaintiffs have met all the requirements in their pleading as against the defendant whose pleadings and evidence fell short of requirements (a) and (b) which are respectively on facts relating to the founding of the land in dispute and the person who found the land in dispute and exercised original acts of possession on it. He relied on the cases of Gbanyi v. Osafile & Anor. v. Paul Obi & Anor. (1994) 2 SCNJ 1 at 15; (1994) 2 NWLR (Pt. 325) 125.
Learned Counsel went on to make submissions on the items of evidence of the D.W.1, D.W.2, D.W.3, D.W.4, D.W.5, PW.1 and P.W.6. First, the D.W.1 (a boundary man with the defendant) said under cross-examination that he did not know the history of the land in dispute. Secondly, the D.W.2 (another boundary man) said under cross-examination that he shared boundary with only the respondent and no other person. The farm where he shared boundary with the respondent was at Olofi and not Igbo Ilamu. Thirdly, the evidence of D.W.3 (Chief Eesa of Obaagun) was hear-say because he only related what Aro Oyadeji said about partitioning of the land in dispute. It was Aro Oyadeji who said that the land was partitioned into three. Fourthly, the D.W.4 (a lady resident at Odole compound at Obaagun) said under cross-examination that she did not know the history of the land in dispute and added that:
“It is true that it is because the defendant has been farming on the land that is why I am saying that he is a joint owner.”
Fifthly, the D.W.5, the P.W.1 and P.W.6 are of the same father according to the D.W.5 who said that he knew Adeyanju as the only Obaagun.
In view of the foregoing, the learned Counsel submitted that the learned trial Judge was right, when he held that “there is a mixing up of history.” He further submitted, with regard to that observation that the learned trial Judge referred to the mix-up caused by the appellant’s witness. He urged the court to hold that the learned trial Judge properly evaluated the evidence before him and accordingly came to a just conclusion.
In furtherance of the issue of ownership through traditional evidence, learned Counsel for the respondent argued that the appellant neither pleaded nor proved any original settler on the land in dispute as required by law. The appellant instead relied on long possession which he tied to partition. He further argued that only the appellant and no other person testified on the issue of partition without stating how it was carried out. The only seeming supporting evidence was adduced by the D.W.3 (Aro Oyadeji) who gave hearsay evidence which is not admissible. He referred to the following cases on when partition could be accomplished Nwanyelugo v. Odukuse Ogunbiyi (1998) 6 SCNJ 102 at 116, Adesanya v. Otuewu (1993) 1 SCNJ 77 at 144; (1993) 1 NWLR (Pt.270) 414 and Odekilekun v. Hassan (1997) 12 SCNJ 114 at 131; (1997) 12 NWLR (Pt. 531) 56. Learned Counsel argued that exhibit C which the learned Counsel for the appellant urged the court to hold as evidence of partition could not assume that status because the crops on the land and not the land itself that formed the basis of sale between the parties to it (exhibit C). He finally urged the court to hold the judgment of the lower court was not in any way perverse.
It is common ground that the parties based their ownership on the land in dispute on grants through two different sources. It is clear from the averments in paragraphs 6, 7, 8, 9, 10, 11 and 12 of the statement of claim and paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the statement of defence based their divergent claims on traditional history. It is the law that in order to succeed in a claim of title to land based on traditional history; it is incumbent on the claimant relying on it to plead and lead evidence to show:
(1) how his ancestors derived title to the land,
(2) the person who founded the land and exercised original acts of possession,
(3) particulars of the intervening owners through whom the party or parties claim,
(4) the person or persons on whom the title in respect of the land devolved since its founding.
See Ezewusim v. Okoro & Anor. (1993) 5 NWLR (Pt.294) 478.
Where however, the line of succession is not satisfactorily traced by the plaintiff his claim must be rejected by the court. In other words, there must be no gap in the line of succession up to the plaintiff laying claim. See the cases of Alade v. Awo (1975) 4 SC 215; Kalio v. Woluchem (1985) 1 NWLR (Pt.4) 616; Dike v. Okoloedo (1999) 10 NWLR (Pt.623) 359 and Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 393.
I have observed from the state of the record of proceedings in the instant case that, the respondents sufficiently pleaded their source of grant and led cogent evidence on the original settler starting with Afaigun, until the incumbent settlers who are the plaintiffs/respondents. The defendant/appellant apparently neither pleaded the original settler nor led evidence on him. He instead started from Oba Adeyanju, who he claimed granted the land in dispute to Odewale his progenitor. The appellant attempted to consolidate his claim by relying on partitioning of the land in dispute. It is apparent from the state of record that only the appellant testified on the partitioning of the land in dispute without evidence of how the exercise of partitioning was carried out. The D.W.3 on whom he relied to confirm his claim to partition did nothing of the sort. He instead adduced hearsay evidence. It is settled that partition in the technical sense is one of he methods by which family property is determined. Partition of family property can only be effected by the general consent of the family. Such consent does not exclude, according to customary law, it being carried out orally. The effect of partitioning is that the property which had hitherto belonged to the family is split up into ownership of the constituent members of the family. It puts an end to the communal ownership. When the division is among constituent branches of the family, a new family ownership is created. See Bello (Selia) v. Udoye (2004) 19 WRN 58 at 85, Olorunfemi & Ors. v. Asho (supra) at 53 and Ojelade v. Soroye (1998) 5 NWLR (Pt.549) 284 at 304. In the instant case, no proper partition was effected in order to confer ownership of the land in dispute on the appellant.
It is pertinent to comment that hearsay evidence in traditional history is an exception to the rule on hearsay. It is admissible evidence for that purpose. This is so because a claim of ownership to land based on traditional evidence is basically hearsay from one person to the other over time out of living memory. The trial Judge, however, has a duty in appraising such evidence to find out which of the conflicting claims is more probable by testing them against themselves. See Kojo II v. Bonsie (1957) 1 WLR 1223. In the instant case, the respondents apparently adduced cogent evidence of tradition pointing unequivocally to the fact that they are still exercising dominion over the land in dispute. The instant hearsay evidence, although admissible, was not pungent enough to weaken the respondents’ evidence on ownership to the land in dispute.
What is left for consideration is the issue of evaluation of evidence before the trial court. Evaluation of evidence relates to assessment of facts available to the trial court in its endeavour to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. Evaluation of evidence and the ascription of probative value to such evidence are the preserve and/or primary functions of a trial court. This is so because the trial court had the opportunity of seeing and hearing the witnesses who appeared in a given case and even watched their demeanour. An appellate court which did not enjoy the same advantages which the trial court enjoys will not ordinarily interfere with the findings of facts made by that court. The appellate court will, however, disturb those findings of facts made by the trial court if it (the trial) did not make proper use of the opportunity of seeing and hearing the witnesses at the trial or has taken erroneous view of the evidence adduced before it or if it is established that such findings are perverse, or not supported by evidence. See Woluchem v. Gudi (1981) 5 SC 291 at 295/296; Ebba v. Ogodo (1984) 1 SCNLR 372 at 378 and Ude & 2 Ors. v. Chimbo & 3 Ors. 23 at 40. In the instant case, I have carefully considered the record of appeal as well as the submissions of the learned Counsel for the parties, and I found that the learned trial Judge impeccably evaluated the evidence before him and rightly held that respondents proffered cogent traditional evidence that they inherited the absolute ownership of a vast land, including the land in dispute situate at Igbolamu from Moradehun, who in turn got it from her father, the grandson of Afaigun the original settler of Igbolamu. In these circumstances, I failed to see any compelling reasons to disturb the findings of facts of the trial court as they are not perverse. The findings of facts that the appellant is a trespasser is a correct assessment of the evidence available to the trial court. I accordingly, resolve the sole issue in favour of the respondents.
In the final analysis, the appeal fails and it is dismissed. The judgment of the lower court delivered on the 12th day of March, 1999, is affirmed. I make no order as to costs.

OMAGE, J.C.A.: I have read before now, the lead judgment of my learned brother, S.A. Ibiyeye, J.C.A. I agree that the appeal be dismissed. In my view, the learned trial court has dealt with the facts of the case and has come to the conclusion that trespass of the appellant has been proved. I have no reason to reverse the judgment and the appeal fails, it is dismissed.

ADEKEYE, J.C.A.: I was privileged to read in draft, the judgment just delivered by my learned brother, S.A. Ibiyeye, J.C.A. I agree with his conclusion that the appeal lacks merit and it must consequently be dismissed. The respondent before the trial court based his claim on original settlement, and the appellant relied on grant. They were only required to establish their root of title to the satisfaction of the trial court. Once a party pleads and traces his root of title in an action for declaration of title to land to a particular person or source and the averment is challenged, to succeed, the plaintiff must not only establish his title to such land he must also satisfy the court as to the title of the person or source from whom he claims. In the instant case, the appellants can only succeed if they can establish not only their title to the land in dispute, they must go further to satisfy the court on the validity of their grantor Oba Adeyanju’s title. Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) pg. 393; Ogunleye v. Oni (1990) 2 NWLR (Pt.135) pg. 245; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.118) pg. 417; Alli v. Alesinloye (2000) 6 NWLR (Pt.660) pg. 177.
In considering an appeal before it, what an appellate court ought to decide is whether the decision of the trial court was right. The evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which heard and assessed the witnesses. Where a trial court unquestionably evaluates the evidence and justifiably appraises the facts, the appellate court cannot interfere to substitute its own views. Once there is sufficient evidence on record from which the trial court made its findings the appellate court cannot interfere – in that, the trial court having had the opportunity of hearing the witnesses at the trial, and watching their demeanour in the witness box is entitled to select witnesses to believe on facts established.
An appellate court shall not ordinarily, interfere with such findings of fact except in certain circumstances as:-
(a) Where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial.
(b) Where the trial court has drawn wrong conclusion from accepted credible evidence.
(c) Where the trial court has taken erroneous views of the evidence adduced before it; or
(d) Where the trial court’s findings are perverse in the sense that they are unsupported by evidence or do not flow from the evidence accepted by it.
In this case, none of the foregoing manifested itself in any of the findings of the trial court. Kodilinye v. Odu (1935) 2 WACA 336 at 149; Maja v. Stocco (1968) 1 All NLR 141; Woluehem v. Gudi (1981) 5 SC 291.
The judgment of the lower court delivered on the 12th of March, 1999, is affirmed.

Appeal dismissed.

Appearances