CHIEF ADEDEJI OGUNDELE & ORS v. HIGH CHIEF OLAREWAJU OGUNTOYINBO & ANOR
(2019)LCN/12921(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/EK/65/2017
RATIO
LAND LAW: WHO MUST PROVE TITLE TO LAND
“It is well established that a plaintiff seeking for declaration of title to land bears the enormous duty in law to adduce credible and admissible evidence in establishing such title. The plaintiff must succeed on the strength of his own case except where the evidence adduced by the defendant strongly supports his case.” PER FATIMA OMORO AKINBAMI, J.C.A.
LAND LAW: PROVING TITLE TO LAND
“It had equally, been stated in a plethora of cases that for a plaintiff to succeed in such a case, he could prove his ownership of the said land or title therein through any of the five different ways long entrenched by the Supreme Court for proving the same, that is to say;
(1) By traditional evidence
(2) By production of documents of title duly authenticated in the sense that their due execution must be proved unless they are documents twenty or more years old produced from proper custody.
(3) By positive acts of ownership such as (selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough to warrant the inference that the person is the true owner;
(4) By acts of long possession and enjoyment of land
(5) By proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected adjacent land would in addition be the owner of the land in dispute.
See the classicus case of Idundun v. Okumagba (1976) 9 – 10 SC 227, Alli v. Alesinloye (2000) FWLR (Pt.15) 2610 at 2632 paras B – D and Queen v. Uche (1994) 6 NWLR (Pt.350) 529 at 550 Paras G-H.
From the totality of the evidence adduced by both parties there is no doubt that both parties predicated their claim to title in respect of the land in dispute on traditional history.” PER FATIMA OMORO AKINBAMI, J.C.A.
EVIDENCE: WHETHER TRADITIONAL HISTORY CAN BE USED TO PROVE TITLE TO LAND
“It is trite that traditional history is one of the recognized ways of proving title to land as laid down in Idundun v.Okumagba (supra) 227.
It is also settled law that a plaintiff whose claim for title to land as in this case is founded on traditional history must plead and prove the following facts by credible, cogent and reliable evidence:-
(1) Who founded the land
(2) How he founded the land
(3) The particulars of the intervening owners through whom he claims. See Dike v. Okoloedo (1999) 19 NWLR (Pt.623) 359 at 363; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 at 782 – 783 and Igbojimadu v. Ibeabuchi (1998) 1 NWLR (Pt. 533) 179 at 190-191 paras H – B, Dakolo v. Rewane Dakolo (2011) 16 NWLR 9Pt.1272) page 22 at 47 ? 48 paras A – C.” PER FATIMA OMORO AKINBAMI, J.C.A.
JUSTICES
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
1. CHIEF ADEDEJI OGUNDELE
2. AJIBOLA AGOGO
3. ROTIMI OPEYEMI
4. IBIKUNLE ALABI Appellant(s)
AND
1. HIGH CHIEF OLAREWAJU OGUNTOYINBO
2. ALHAJI MOHAMMED YUSUF
(for themselves and other members of lodging family of Irefin Isan Ekiti) Respondent(s)
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Ekiti State High Court delivered by Hon. Justice A. L. Ogunmoye on the 21st of March , 2017.
The suit before the trial High Court was initiated by a Writ of Summons and statement of claim dated 12th August, 2015, and filed on the 14/8/2015, with an application for interlocutory injunction. The Appellant filed a memorandum of appearance on 21st August 2015, and a counter affidavit to the Respondent?s interlocutory injunction. Issue of legal representation was raised and resolved and the Appellants filed their statement of defense and counter affidavit to the interlocutory injunction filed by the Respondents. The Respondents filed amended Statement of Claim dated 5th May, 2016 and filed on the 9th of May 2016. The Appellants filed an Amended Statement of Defence dated 3rd June, 2016 on 8th June, 2016. The Reply to Amended Statement of defence dated 13th June, 2016, was filed on 14th June, 2016.
The facts that led to this appeal are as follows:
?The Respondents who were claimants at the trial Court sued the
Appellants claiming for declaration of title, damages for trespass and an order of perpetual injunction against the Appellants.
The Respondents’ claim against the Appellants jointly and severally as contained in Paragraph 25 of the Amended Statement of Claim dated 5th of May 2016 reads thus:
“(A) A declaration that the Claimants are entitled to the Right of Occupancy of the piece of land lying, being and situate at Oturo – lpole, lrefin Isan-Ekiti with the following boundaries; (i) lsolo/Edegun family land, Okeoba family land, ldofin family land and Egena family land.
(B) Special and general damages in the sum of N50,000,000 (Fifty Million Naira) against the Defendants for Defendants? act of trespass and destructions on Claimants? land as follows;
Special damages = N2,250,000
General damages = N47,750,000
(C) An order of perpetual or permanent injunction restraining the Defendants their agents, privies, servants and assigns from further committing any act of trespass on Claimants? land which is lying, being and situate at Oturo – lpole lrefin Isan-Ekiti with the following boundaries lsolo/Edegun
Family land, Okeoba – Family land, ldofin family land and Egena family now, forthwith and henceforth.”
The defendants, in their amended statement of defence, denied substantial parts of the averments of the statement of claim and in paragraph 38 of the amended statement of defence urged the Court to dismiss the claimants? claims on the grounds that it was unmeritorious and an abuse of Court process.
After the exchange of pleadings, the matter proceeded to full trial. While the claimants testified and called seven other witnesses, the 1st and 4th defendants testified on behalf of the defendants.
The CW8, Alhaji Mohammed Yusuf, the 2nd Claimant in this suit testified that he is from Odofin family of lrefin, Isan – Ekiti as well as the 1st Claimant. While he is the family head, the 1st Claimant was a principal member and the Odofin of Isan- Ekiti. The suit was instituted in a representative capacity. The 1st -3rd defendants were members of Okeoba family of Isan-Ekiti while the 4th defendant was a timber merchant from the llusajumu family of Isan – Ekiti. That the claimants are the owners of a large tract of land at Oturo- lpole, lrefin,
Isan-Ekiti from time immemorial, and had been in undisturbed possession from time immemorial until recently when the defendants trespassed thereupon. The land in dispute, which was well known to the parties, was bounded by lsolo/Edegun familyland, Okeoba family land, ldofin family land and Egena family land.
CW9, Chief Olarewaju Oguntoyinbo, the 1st Claimant in this suit stated that he is the Odofin of Isan-Ekiti. He tendered Exhibits 1 , 2, 3, 4 and 4a. Under cross examination he stated that there are six kingmakers in Isan Ekiti. That he is not a kingmaker in respect of the Onisan Chieftaincy. But that he is a High chief. CW9 was categorical that he was not the founder of the land, but was founded by their ancestors. That the economic trees like mahogany and iroko belonged to his family. That the Odofin is the second in rank to Onirefin. And their main complain to the police was that the Defendants fell economic trees on their land and also destroyed their crops. He gave evidence at the magistrate Court. That it is true that Exhibit 2 emanated from his family. The receipt issued for Onirefin Ajayi, at page 3 of Exhibit 3A, was dated 8/9/72. Exhibits 4, and 4a are in respect of the land in dispute. The Defendants fell 30 timber.
DW1, Kunle Alabi, under cross examination stated that he became a timber merchant in 1986. That there were no economic crops like cocoa and kola-nut on the land where he fell timber. He did not take permission from the Claimants, before he fell the logs, because they were not the ones who sold the timber to him.
DW2, Chief Adedeji Ogundele tendered Exhibit 5, an enrollment of order. Under cross- examination he stated that his family has land at Turo farmland and owns Turo farmland. To the South of the land in dispute is lsoko, to the West is Oburo, to the East is Edefin/Okenisa and to the North is lbore Legena. Turo farmland covers Asoyi farmland, Ate-Agbagba farmland is part of Turo farmland Atu, odo ljesha, lgbo Agbo, Asoyi farmland,were all part of Turo farmland. Are Agbaba and Odo lgbo farmland were part of Turo farmland. Oritu farmland belongs to lnisia family, lgbo lra belongs to the lsolo family.The Claimants have no tenants on the land. There is only one tenant on the land called Jimoh Dongo. The Claimants? family land is at Afu farmland.
DW2, stated that their ancestors founded the land in dispute and his family farms on the land in dispute. He knows the Claimants very well. He denied the fact that lsimikaye founded the land in dispute. Rather lsimikaye migrated with other members of the family to Isan -Ekiti in 1825. He cannot say the boundary of the old Isan Kingdom. All the fourteen units that migrated from lle-lfe were his family members. Each unit has its own farmland. Obati hill is central to the land in dispute. The head of the 14 units is Onirefin, the 1st Claimant. He is second in command to High Chief Onirefin.
On 14-6-16 the application to visit the locus-in-quo already filed and served was moved and granted.
On 16-12-16 upon visit to the locus-in-quo CW3, was reminded of his former oath and he stated;
That at the locus-in-quo he showed the Court where the Defendants appropriated his timber. He showed the Court the boundary of the land.
Under cross-examination CW3, stated that the Porogun tree by the shrine was newly planted, because the one there before had been burnt. The land visited was called Turo. Turo and Afu farmland are not the same, the 2nd
Defendant?s father did not show his cocoa Plantation to the Court. The Cocoa Plantation was planted by the father of the Claimant. The 1st Claimant?s father was 3rd Claimant?s paternal uncle.
At the close of the trial, Appellants filed their written address. The Respondents filed their written address also. The Appellants filed a Reply to to Respondents? address. The addresses of parties were adopted and judgment was delivered on 21st March, 2017, granting the reliefs of the Respondents.
Dissatisfied with the judgment, the Appellants filed a notice of appeal dated 6th April, 2017 and filed on 10th April, 2017. The Appellants with the leave of this Court amended their notice of appeal.
The Appellants distilled a lone issue for the determination of this appeal as follows:
Whether the Respondents proved their claims before the trial Court to entitle them to judgment, having regards to the principles of law on declaratory reliefs, trespass and an order of perpetual injunction. (Grounds 1 -7 of the Amended Notice of Appeal).”
The Respondents on their part, also distilled a sole issue for the determination of this appeal as follows:
Whether from the pleadings and available evidence on record, the Respondents proved their case as to entitle them to judgment.
I prefer the way the Respondents couched their issue, l will determine this appeal on Respondents? issue.
Appellants? counsel in arguing this issue submitted that the Respondents in proof of their claim for declaration of title, relied on traditional history, which is one of the modes of proof of ownership of land as laid down in ldundun & Ors v Okumagba (1976) 9-10 SC 77 at 246 to 250. He further submitted that the claimants in a claim for declaration of title, the law is that they have a duty to prove their title clearly, while the defendant is only to defend the action. See Onibudo v Akibu (1982) 7SC 60 at 84-85; Olaoti v Balogun (1996) 4 NWLR part 441 at 44-45; Echi v Nnamani (2000) 8 NWLR part 667 at 1-12; Okonkwo V Okonkwo (2011) 1WRN 23 at 26 line 25.
On the evidence of tradition relied upon by the Respondents, learned Appellants? counsel submitted that for the Claimants? to succeed they must plead and establish the following facts:
(a) Who founded the land;
(b) How he founded it; and
(c) The particulars of the intervening owners through whom he claims down to him. See Anyafulu v Meka (2014) 7 NWLR part 1406 at 396, 418 paras C- F.
Appellant’s counsel, on who founded the land in dispute submitted that, the respondents gave different names. He referred to respondent?s paragraph 13 of the Amended Statement of Claim.
The Respondents’ counsel agreed with Appellants’ counsel that there are five ways of proving ownership of title to a piece of land. He cited the case of Ezeanah v Atta (2004) 7NWLR (Part 873) at 468, 508 D-G.
On the submission of Appellants’ counsel that Respondents, on who founded the land gave different names, Respondents’ counsel referred to their reply to Appellants’ amended statement of defense, paragraphs 1(d), 2(a) and 5 (c). He reiterated the fact that the Appellants did not challenge the traditional evidence of the Respondents’ under cross-examinations, which is tantamount to admission. SeeGaji v Paye (2003) 8 NWLR (Pt 823) at 583, 605 A-C.
The learned counsel for the Appellants attacked Respondents’ pleadings arguing that that there is missing gap in the traditional history relied on by the Respondents. On behalf of the Respondents, their counsel submitted that there is no single gap as far as ownership of the land is concerned as the Odofins took over in succession. Therefore, if these Odofins were in active possession without disturbance or interference, the only inference to be drawn is that the Respondents are genuine and bonafide owners of the land. See Agi v Access Bank Plc (2014) 9 NWLR (PT 1411) at 121, 155 para F-H 156 A. It was contended by learned Respondents? counsel that the Appellants did not challenge the evidence concerning these Odofins as being in active possession of the land. See Polo v Ojor (2003) 3 NWLR (Pt 807) at 344, 355 – 356; Akibu v Azeez (2003) 5 NWLR (pt 814) at 643, 670 F-G; Spiess v Oni (2016) 14 NWLR (Pt 1532) at 236, 262 D-F.
The trial Court in respect of the evidence of the Respondents arrived at the finding as follows;
?It was the evidence of the CW8, and CW9, that their ancestor named Isimikaye alias Ajagborogbolemowo, first settled on the land as a virgin land, planted both cash and food crops and that he gave birth to Oni, Kupolusi, Ogunyemi, Aje and Adagele. Oni who succeeded lsimikaye as the Odofin, gave birth to Fasiku, Oguntoyinbo, Ojo and Yusuf Ogundana. Fasiku succeeded Oni as the Odofin. Oguntoyinbo?s son called Olarewaju Oguntoyinbo succeeded Akin as the Odofin. Olarewaju Oguntoyinbo is the current Odofin and the 1st Claimant. The 2nd Claimant is a direct son of Ogundana Yusuf……… l refuse to agree with the reasoning of the defense counsel. Short of using the exact words, it follows logically that son who succeeds to the chieftaincy of his father would automatically inherit the land of his father. Where there is an averment (although rebuttable) that a son succeeds to the chieftaincy of his late father, there is an implied averment that he succeeds to the land of his late father. An example of implied averment is to be found in an averment of ownership of land which amounts to, and implies an averment of possession.?
It was further elucidated by learned counsel for the Respondents that, the submissions of the Appellants on the fact that the Respondents gave two different names concerning the founder of the land, is misconceived, misrepresented and misguided because paragraph 13(a), (b) and (c) of the statement of claim is clear on the matter.
Appellant?s learned counsel further submitted that the evidence elicited from Respondents? witnesses were contradictory especially that of CW3, who is a principal member of Respondents? family. Respondents? counsel countered the submissions of the Appellants by referring to the evidence of CW2, under cross- examination who did not say that the Appellants have economic trees on the land, that what CW2, established was that he purchased economic trees from the Respondents, which was not challenged under cross-examination. The inference therefore is that the economic trees are the property of the Respondents.
Respondents? counsel referred to CW3?s evidence that he is a boundary man on the land in dispute, and has not said the Respondents are not the owners of the land in dispute, and did not say that his father founded the land. The evidence of CW4, also buttressed the fact that the land in dispute belongs to the Respondents. The Respondents? counsel pointed out the fact that the evidence of CW6, was believed by the trial judge who in the judgment stated:
?l believe her as such. She was also not successfully discredited in her testimony that she knew the history of the land and that it belonged to the Claimants? family.
Respondents’ counsel reiterated the fact that CW7’s, evidence confirms the pleadings of the Respondents, that there is a shrine on the land which Respondents showed the Court, during the visit to the locus- in- quo.
He disagreed with Appellants’ counsel on contradiction, and stated categorically that there is no contradiction in the Respondents? case to warrant a reversal of the judgment.
The learned counsel also made the point that there is no appeal against the important finding of the trial Court where the judge held thus:
I am also satisfied that the claimants had established numerous and positive acts of ownership within living memory sufficient to establish that they were the absolute owners of the land in dispute.
He urged the Court to hold that the Respondents are genuine owners and affirm the judgment of the learned trial judge.
The learned Respondents counsel reiterated the fact that there is no dispute over the boundaries of the land in dispute. To buttress this point he referred to paragraph 12 of the Amended Statement of Claim. He stated that the land is well known to the parties. He contended that the Appellants did not cross examine the Respondents on this point, therefore they have admitted it.
He further reiterated the fact that the visit to the locus-in-quo has cleared all doubt if any as to the identity of the land in dispute.
On the Appellants attack on Exhibit 4 (a) and 4(b) learned counsel contended that their allegations are vague, flimsy, petty, lame, spurious, porous and weak. Respondents’ counsel further submitted that Exhibit 4(a) and 4(b) were admitted without objection. The exhibits point to the transaction by Respondents’ Odofin family with customers vis-a-vis the logs or trees on the land as well as the tenants that were issued or given receipts upon payment of tributes in respect of the said land. The Court visited the locus-in quo with the parties and ascertained the land. That the heavy weather being made by the Appellants about Oruro on the receipt and Oruro-lpole will not hold water in view of the Appellants’ own document on page 152 of the record of appeal i.e. Exhibit 5.
The Learned counsel pointed out that the Appellants did not cross examine the Respondents on their pleadings in paragraph 23 of the Amended Statement of Claim. That the learned trial judge correctly followed the principle of law awarding less than claimed but not more.
The issue of stamp raised by the Appellants was debunked by the Respondents? counsel, in that the ground of appeal did not cover it. He pointed out that the Appellants filed their statement of defence to their amended statement of Claim which was duly stamped. He urged this Court to dismiss this appeal.
The learned Respondents counsel reiterated the fact that the Respondents established their ownership of the land in dispute by their numerous acts of ownership within living memory sufficient to establish that they were the absolute owners of land in dispute.
Finally learned counsel urged this Court to dismiss this appeal with substantial costs.
I have also read through the reply brief and I have found that it contains argument canvassed in the Appellants? brief of argument. The essence of a reply brief is not to reopen argument already canvassed. It is to reply to new issues that have arisen in the Respondents? brief of argument. I will therefore discountenance the Reply Brief.
It is well established that a plaintiff seeking for declaration of title to land bears the enormous duty in law to adduce credible and admissible evidence in establishing such title. The plaintiff must succeed on the strength of his own case except where the evidence adduced by the defendant strongly supports his case.
It had equally, been stated in a plethora of cases that for a plaintiff to succeed in such a case, he could prove his ownership of the said land or title therein through any of the five different ways long entrenched by the Supreme Court for proving the same, that is to say;
(1) By traditional evidence
(2) By production of documents of title duly authenticated in the sense that their due execution must be proved unless they are documents twenty or more years old produced from proper custody.
(3) By positive acts of ownership such as (selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough to warrant the inference that the person is the true owner;
(4) By acts of long possession and enjoyment of land
(5) By proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected adjacent land would in addition be the owner of the land in dispute.
See the classicus case of Idundun v. Okumagba (1976) 9 – 10 SC 227, Alli v. Alesinloye (2000) FWLR (Pt.15) 2610 at 2632 paras B – D and Queen v. Uche (1994) 6 NWLR (Pt.350) 529 at 550 Paras G-H.
From the totality of the evidence adduced by both parties there is no doubt that both parties predicated their claim to title in respect of the land in dispute on traditional history.
It is trite that traditional history is one of the recognized ways of proving title to land as laid down in Idundun v.Okumagba (supra) 227.
It is also settled law that a plaintiff whose claim for title to land as in this case is founded on traditional history must plead and prove the following facts by credible, cogent and reliable evidence:-
(1) Who founded the land
(2) How he founded the land
(3) The particulars of the intervening owners through whom he claims. See Dike v. Okoloedo (1999) 19 NWLR (Pt.623) 359 at 363; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 at 782 – 783 and Igbojimadu v. Ibeabuchi (1998) 1 NWLR (Pt. 533) 179 at 190-191 paras H – B, Dakolo v. Rewane Dakolo (2011) 16 NWLR 9Pt.1272) page 22 at 47 ? 48 paras A – C.
This action was filed and prosecuted in a representative capacity by the Claimants High Chief Olarewaju Oguntoyinbo and Alhaji Muhammad Yusuf as Claimants, for themselves and on behalf of other members of Odofin family of lrefin Isan -Ekiti.
After ascribing probative value to the evidence adduced the trial Court proceeded to weigh evidence before it on the imaginary scale upon the preponderance of evidence to decide which side the scale weighed having regard to the burden of proof as in Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) at 325, Mogaji V. Odofin (1978) 4 SC 91; Abisi V. Ekwealor (1993) 6 NWLR (Pt. 302) page 643 and Dakolo v Rewane supra page 55 paras A-C, held as follows:-
“In sum, we hold that the preponderance of evidence weighed more on the side of the plaintiff than that of the defendant. The overwhelming evidence supports the claim of the plaintiff especially in the face of the admission by the defendant and his witnesses. That the plaintiff and his people once lived on the disputed land and planted some economic trees. The traditional evidence as given by the plaintiff has been shown to be more credible than that put forward by the defendant who projected two or three conflicting roots of his title. It is a notorious fact that the first settler or founder of a parcel of land between the owner of the land and the head of subsequent settlers on the land. His descendants derive title to the land from him. See Titiloye v. Olupo (2003) 2 NLLC 483 at 516 AJ. We hereby enter judgment for the plaintiff in terms of his claim and dismiss the defendant’s counter-claim.”
In the instant case, it has to be borne in mind that Respondents have the burden of proving their root of title. Where the trial Court accepts their traditional history as more probable, then they are entitled to judgment. It is only when it can neither find any of the two histories probable nor conclusive that the Court will declare both inconclusive and decide the case on numerous and positive acts of possession and ownerships. In Ireju Nwokidu & 3 Ors vs. Mark Okami (2010)1 SCNJ 167 at page 196,(2010)3 NWLR (Pt. 1181) 362 at 398 paras A-C, the Supreme Court gave guidance as to what should be done when a trial judge is faced with competing histories regarding the acquisition of a piece of land, through traditional history. The Supreme Court had this to say:-
“in the scenario before the Court, where the case is fought on evidence of traditional history – which in other words becomes a matter of hearsay upon Hearsay which is the nature of traditional evidence the, trial Court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history, relied upon, the trial Court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied upon by the other side, the trial Court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.”
It is clear from the above decision that the issue of relying on other root of title can only arise where the two traditional histories presented, by the parties are rejected by the trial Court. Since the trial Court accepted the traditional history put forward by the respondents as more probable, the trial Court cannot rely on any other root of title presented by the appellants. Every case has to be treated according to its peculiar facts and circumstances.
?It is the law that evaluation of evidence and ascription of probative value to the testimony of a witness is within the exclusive domain of the trial Court that heard and watched the demeanor of the witness before it. The inference drawn by the trial Court was supported by evidence. The trial Court accepted the traditional history put forward by the
Claimants and their witnesses as more probable and the findings were supported by evidence. The findings of fact made by the trial Court were not perverse. The Court below was therefore right in giving judgment in Favour of the Respondents. I also agree with the Court below.
Learned counsel for the appellants submitted that the decision of the Court below that the identity of the land was not an issue because both parties know the land in dispute very well as erroneous on point of law. Reference was made to the judgment. Learned counsel submitted that the issue is
whether the respondents as claimants led satisfactory and reliable evidence of the portion of land being claimed. It was his contention that the respondents and their witness led contradictory evidence of the land in dispute and even at the locus in quo showed land inconsistent with evidence led by him in open Court in respect thereof.
?Learned counsel further submitted that the position of the law is that the purpose of a visit to locus in quo is not to make a different case but to confirm or disprove evidence led in open Court. He said the respondent failed to link the boundaries of the land given by him. PW1 and PW2 at the locus in quo. He has therefore not shown with certainty the area of land to which his claim relates. Reliance was placed on Odeche v Chibogwu (1994) 7 – 8 SCNJ 317 at 318 and Obi v. Mbionwu (2002) FWLR (Pt.115) 617 at 637-638. Counsel contended that even if the appellant claimed to know the disputed land, what has been described by the parties are remarkably different. Reliance was placed on Idehen v. Osemwenkhae (1997) 7 SCNJ 581 at 591.
Learned counsel argued that the view of the Court below that there is nothing on the record to show that one of the parties was in doubt as to the boundaries or identity of the land being disputed and that both parties knew the land, is erroneous in law. He urged the Court to resolve this issue in favour of the appellants, and allow the appeal. That appellants admitted at the locus in quo that the land showed by the respondents was the same land that was in dispute. That the admission by the appellants that the land shown to the Court by the respondents was the very land in dispute has obviated the need for further proof of the identity of same. The law is settled that facts admitted need no further proof. Counsel argued that the complaint of the appellants as to identity of the land is misplaced and unmeritorious. He urged the Court to resolve the issue in favour of the respondents.
The first duty of a plaintiff who comes to Court to claim a declaration of title is to show the Court clearly the area of land to which his claim relates and this can be done by:
(i) Giving such oral description of the land that any surveyor acting on such description can produce a plan of the land he claims.
(ii) Filing a plan reflecting all the features of the land and showing clearly the boundaries of the land. See Akulaku v. Yonqo (2002) 5 NWLR (Pt. 759) page 135, Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362; Akinolu Baruwa v. Ogunsola (1938) 4 WACA 159 and Ate Kwadzo v Robert Kwasi Adijei (1944) 10 WACA 274.
The identity of a land in dispute is not to be determined by the names both parties decide to call it but by production of credible evidence as names do not change the relative position of any land. In Assam v. Okposin (2001) FWLR (Pt. 56) 630 at 640 paras B – C this Court observed as follows:-
“in respect of the identity of the land in dispute …the true identity of the land does not depend on the names that the parties choose to call them and that the criteria for knowing the identity of the land is by ascertaining its boundaries, distinctive features and the location of the land as has been established by pleadings and credible evidence.?
The law is settled that facts admitted need no further proof. It is clear from the above statement of the appellants that there was no doubt as to the identity of the land the subject matter of dispute between the parties. It is trite that where the disputed land is known to both parties as in this case the question of identity of the land does not arise. In Odofin v. Oni (supra) at 144 it was held thus:-
“where both parties are familiar with or know the land in dispute the question of identity of or its certainty will cease to perplex the trial Court and the appellate Court and neither party will be allowed to place a clog in the wheel of justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land that is well known to both parties.”
By a long line of decided cases, appellate Courts have consistently decided not to disturb concurrent findings of fact made by the two Courts below unless it is shown that such findings are perverse, or that there is some miscarriage of justice or a violation of some important principle of law or procedure which if corrected the finding cannot stand. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296; Kwajaffa v. Bank of the North Limited (2004) All FWLR (Pt. 215) 222 at 254 and Fashanu v. Adekoya (1974) 6 SC 83.
From the totality of the evidence adduced, I am satisfied that the findings of facts made by the trial Court are supported by evidence. I have not been persuaded that there are any grounds for which I can validly interfere in this case.
The lone issue is resolved against the Appellants. This appeal is therefore hereby dismissed.
Costs is assessed at Fifty Thousand Naira in favour of the Respondents.
PAUL OBI ELECHI, J.C.A.: I agree.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the lead judgment delivered by my learned brother, F.O. AKINBAMI JCA and I agree with the reasoning and conclusion reached therein.
In the result, I also dismiss the appeal and affirm the judgment of Hon. Justice A.L. Ogunmoye delivered on March 21st, 2017.
I make no order as to costs.
Appearances:
L. A. Fasanmi, Esq.For Appellant(s)
Temitope Kolawole, Esq. with him, Oluwaseun OyebanjiFor Respondent(s)
