CHIEF ADU BANKOLE & ANOR. V. PRINCE JAMES ADEYEYE & ANOR.
(2010)LCN/4139(CA)
n The Court of Appeal of Nigeria
On Wednesday, the 15th day of December, 2010
CA/IL/89/2009
RATIO
FORMULATION OF ISSUES: PRINCIPLE GUIDING THE FORMULATION OF ISSUES IN AN APPEAL
In the case of N.I.C.O.N. V. P.I.E. CO. LTD. (1990) 1 NWLR 697 AT 704 – 705, His Lordship Akpata JCA (as he then was) had this to say concerning formulation of issues thus:- “Counsel are to formulate issues in the appeal concisely and not to refer the court to the Writ or any portion of the proceedings or judgment for the purposes of ascertaining any of the issues in controversy.” His Lordship went on to say that:- “It is desirable that the Respondents’ brief should contain issues arising in the appeal or it should be specifically stated that the Respondent accepts the issues framed in the Appellants’ brief as the issues for determination in the Appeal.” PER CHIDI NWAOMA UWA, J.C.A.
PROOF OF TITLE TO LAND: WAYS BY WHICH TITLE TO LAND MAY BE PROVED; WHETHER A PLAINTIFF NEEDS TO ESTABLISH ALL THE WAYS OF PROVING TITLE BEFORE HE CAN BE ENTITLED TO A DECLARATION OF TITLE IN HIS FAVOUR
The law is now settled by the Apex Court that there are five ways a plaintiff could prove title to land in the case of IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227 also cited and relied upon by the learned respondents’ counsel. They are:- (a) By traditional evidence. (b) By production of documents of title duly authenticated and executed. (c) By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership, (d) By acts of long possession and enjoyment. (e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. The plaintiff is not required to prove all five but would be entitled to a declaration if he is able to establish any one of the ways. See my earlier and recent decision in the case of ALHAJI RASAQ ADISA OYEBANJI VS. ALHAJI SALAWU AKINLOYE AKINLEYE (2010) 35 WRN PAGE 146 at 157 LINES 15 – 40. PER CHIDI NWAOMA UWA, J.C.A.
ADMITTED FACT: WHETHER AN ADMITTED FACT BY A CONTENDING PARTY NEEDS FURTHER PROOF
It is the law that an admitted fact by a contending party needs no further proof. Where a material fact as in the present case is admitted by the other party the court would act on it in favour of the party on whose behalf the admitted evidence is given. SEE ODOFIN VS. ONI (2001) 1 SCNJ 130 at 143, 144 – 147 and AKANIWO VS. NSIRIM (2008) 1 SCNJ, 275 – 322 at 313 – 314 RATIO 1. PER CHIDI NWAOMA UWA, J.C.A.
POSITION OF THE LAW WHERE THE EVIDENCE OF A CONTENDING PARTY ADMITS THAT HIS ADVERSARY OWNS THE LAND IN DISPUTE
It is the law that the evidence of a contending party admitting that his adversary owns the land in dispute presupposes that there is no further dispute as to who owns the land. I agree with the learned counsel that proof becomes superfluous, see VERITAS INSURANCE CO.LTD. VS. TRUST INVESTMENT LTD. (1993) 3 NWLR (PART 281) at 349, and Sections 19 – 26 of the Evidence Act. PER CHIDI NWAOMA UWA, J.C.A.
VISIT TO LOCUS-IN-QUO: ESSENCE OF A VISIT TO LOCUS-IN-QUO IN A LAND CASE
The essence of a visit to locus-in-quo in land matters includes location of the disputed land, the extent, boundaries and boundary neighbours, and physical features on the land. It is not on record that the parties disagreed on the extent, location and or physical features on the land in dispute during the visit to locus-in-quo. The purpose of a visit to locus-in-quo in a land case is to enable the court see objects and places referred to in evidence physically and to clear doubts arising from conflicting evidence if any about physical objects on the land and boundaries. See, ODICHE V. CHIBOGWU (1994) 7 NWLR (PART 354) 78; (1994) 7 – 8 SCNJ 317, BRIGGS VS. BRIGGS (1992) 3 NWLR (PART 228) 128 S.C.; (1999) 3 SCNJ 75. PER CHIDI NWAOMA UWA, J.C.A.
WHETHER THE ONUS ON THE PLAINTIFF OF PROOF OF LAND IN DISPUTE BY ORAL DESCRIPTION WILL BE DISCHARGED IF ANY SURVEYOR, ACTING ON SUCH DESCRIPTION, PRODUCES A PLAN OF THE LAND IN ISSUE
It is the law that the onus on the plaintiff of proof of land in dispute by oral description is discharged if any surveyor, acting on such description, can produce a plan of the land in issue, see BARUWA V. OGUNSHOLA (1938) 4 WACA 159. The test of such oral description or evidence was laid down by Kingdom C. J. in KWADZO V. ADJEI (SUPRA) as follows:- “The acid test is whether a surveyor, taking the record could produce a plan showing accurately the land to which title has been given”. See also ADESANYA VS. ADERONMU (2000) 13 WRN 104 at 120. PER CHIDI NWAOMA UWA, J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA MOH’D TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF ADU BANKOLE
2. SAMUEL (URHOBO) Appellant(s)
AND
1. PRINCE JAMES ADEYEYE
2. PRINCE MAURICE SUNDAY ADEFOLALU (For themselves and on behalf of ONIWE Family of Ilawe-Ekiti) Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Respondents as plaintiffs instituted this action at the Customary Court, Igbara-Odo Ekiti seeking declaratory and injunctive reliefs against the Appellants as defendants.
The claim before the said trial court is on page 4 of the printed records, later amended, pages 11 – 12 of the records, in which the following reliefs were sought against the Appellants:-
1. A declaration that the Plaintiffs are entitled to the Certificate of Customary right of occupancy in respect of a piece or parcel of land situate at Agbaje bush, Ilawe-Ekiti.
2. N2,000.00 being general damages for trespass committed by the Defendants jointly and severally on the said land sometime during the month of April, 1999 and up till now.
3. The defendants to render an account of the palm produce on the said land harvested by the Defendants from the month of April, 1999 till this case is disposed of.
4. A perpetual injunction restraining the Defendants, their servants and agents from further trespassing on the said piece or parcel of land for the purpose of harvesting farm produce and felling economic trees.”
The case of the Respondents (as plaintiffs) was that the farmland in dispute belonged to their ancestor, Oniwe. That the first Appellants’ (defendants) family was given permission to farm on the land on condition that no economic tree should be felled or palm produce harvested on the farm land. According to the respondents, the first Appellants, family had been farming on the farmland for more than forty (40) years without any hindrance from the Respondents’ family until 1999 when the first appellants’ family allegedly harvested palm produce and felled economic trees on the farmland. This gave rise to this action by the respondents’ family.
On the part of the Appellants, the 2nd Appellant was on the land as a labourer employed by the 1st Appellant to work on the land. The 1st Appellant claimed that the farmland in dispute belonged to his family and that the members of his family have been farming on the farmland for a long time.
One of the witnesses, DW2 – Mathew Ale from Enurin family and father of Oniwe the ancestor of the respondents testified that the land in dispute belonged to the first Appellant’s family, the land having been given out rightly to the Enurin family. Further, that when the matter was looked into in the palace, he was asked to visit the land in dispute with the parties and to investigate the respondents’ allegation against the appellants’ family, the allegation of trespass was found to be baseless. This evidence was said to have been unchallenged by the respondents, Pages 24-25 of the printed records, and that the trial court’s visit to the locus-in-quo confirmed the evidence of the appellants’ witnesses that the members of the first appellant’s family had cocoa plantation on the farmland.
At the close of the case of the parties, in a reserved judgment of the customary court delivered on 20th October, 2000, the court held at pages 53 – 54, lines 1990 – 2022 thus:-
“From the totality of the evidence adduced in this case, this honourable court is with the opinion that the Defendant has not brought a stronger report with his witnesses.
In the light of foregoing, the plaintiffs has (sic) established with evidence every essential issues and has also brought forward the stronger evidence in support of his claim against the defendant for judgment to be given in their favour.
COURT ORDER:- The defendants are liable to the claim of the plaintiffs.
Therefore:- 1. The plaintiffs are entitled to Certificate of Customary Right of Occupancy in respect of a piece or parcel of land which situates at Agbaje bush, Ilawe Ekiti.
2. Two thousand Naira general damages for trespass committed by the defendant jointly and severally on the said Agbaje bush, Ilawe Ekiti sometimes within the months of April, 1999 and until now is hereby awarded against the defendant to the plaintiff.
3. The defendant to render an account of palm produce harvested on the said land by the defendant from the month of April, 1999 till date.
4 A perpetual injunction restraining the defendants and servants and agents from further trespass on the said piece or parcel of land for the purpose of harvesting palm produce and felling of economic trees as asked for by the plaintiffs is hereby granted.
The defendant is to pay a sum of five hundred Naira to the Plaintiff as costs.”
The Customary court in its judgment granted all the reliefs sought by the respondents. Aggrieved by the aforesaid decision, the appellants who were defendants appealed to the High Court, Ikere-Ekiti Judicial Division, Ekiti State. The High Court, sitting in its appellate jurisdiction affirmed the decision of the customary court.
Dissatisfied with the decision of the High Court, the Appellants further appealed to this court vide the notice of Appeal dated 15th day of April, 2003 and filed on 9th June, 2003 containing two (2) grounds of appeal, from which the appellants formulated two issues for determination by this court. The issues are:
(1) Whether the Respondents led evidence in the Court of trial in relation to their root of title and claims for trespass and injunction to entitle them to judgment. (Ground 2)
(2) Whether the Respondents establish (sic) the identity of the land with certainty as required by law. (Ground 1)
The Respondents also formulated two (2) issues for determination as follows:-
ISSUE NO. 1
(1) Whether the Respondents are still strictly under burden to prove the identity of the land in dispute known to both parties and sufficiently identified to the trial court during the visit to the locus-in-quo without raising any objection of any kind whatsoever particularly on the certainty of the land no objection was raised by the contending parties during the trial court visit to the locus-in-quo.
(ii) It is on record that the trial court visited the locus-in-quo on 11/08/2000 see page 31 lines 1092 – 1094. The Respondents were recorded to claim both farmlands on the right and the left as their legitimate farm. Page 31 lines 1106 – 1107.
The Appellant was recorded to claim the farmland side on the left, on page 31 lines 1109 – 1110.
ISSUE TWO
(i) Who has a better title? Would the Appellant not become trespassers as from April, 1999 when before then the Respondents had not authorized them to harvest palm produce and fell economic trees from on set when permission/grant to farm and or to practice subsistence farming in the land only was granted to the father of the 1st Appellant while he was a palace messenger by the royal family of the respondents having regard to wit:-
(a) Both parties agreed that the respondents are from Oniwe’s family that owned the land in dispute.
(b) That Oniwe is a royal family at Ilawe where Alawe of Ilawe comes from.
(c) That there is only one ruling house at llawe.
(d) That the father of the 1st Appellant was a palace messenger.
(e) That the 2nd Appellant is an employee of the 1st Appellant employed only for the purpose of harvesting palm produce.
(f) That the coming of the 1st Appellant to the land is vide his father.
(g) That the land is a royal/stool land at Ilawe.
(h) Exhibit ‘A – A5′ not enough evidence of proof acts of ownership to the whole land in dispute and a proof that from time immemorial the respondents have been harvesting the palm produce and fell the economic trees before April, 1999 when the 1st Appellant attempt (sic) was met stiffly with the court case.”
At the hearing of the Appeal on 20/10/10, the learned counsel to the appellants Bamidele Omotoso Esq. adopted and relied on the Appellants’ brief dated 11/11/09 filed on 12/11/09, he also adopted and relied on the Appellants’ reply brief dated 29/3/10 and filed on 15/4/10. The respondents’ brief of argument dated and filed on 22/3/10 prepared by their learned counsel Sir. Chief Goke Adurota was also adopted and relied upon in urging us to affirm the judgment of the lower court, the learned counsel to the Respondents withdrew his preliminary objection incorporated in the Respondents’ brief of argument, same was withdrawn and struck out, as a result the learned counsel to the Appellants, also withdrew his reply to the Respondents’ preliminary objection argued in his reply brief, same was withdrawn and also struck out.
Looking at the issues as formulated by the parties earlier reproduced in this judgment, the respondents’ two issues even though with due respect, inelegantly couched cover the Appellants’ two issues. The respondents’ issues were framed in an unusual and irregular manner; they contained arguments and earlier adduced evidence in course of trial in support of the case of the Respondents, and were more or less submissions in support of the respondents’ case. To avoid such long winded issues as formulated by the respondents and to cut a long story short, learned counsel could adopt the issues as formulated by the appellants or the other party whatever the case may be. Learned counsel are to formulate issues in the appeal in a concise manner and not make detailed reference to already adduced evidence in course of the proceedings to ascertain the real issues in controversy. From the contents of the Respondents’ two issues as contained in their brief of argument, it is clear that the issues as formulated by the Appellants were acceptable to the respondents, since the contents of their (Respondents) issues were along the line of those of the appellants but for the long windedness, the issues covered the two grounds of appeal. In the case of N.I.C.O.N. V. P.I.E. CO. LTD. (1990) 1 NWLR 697 AT 704 – 705, His Lordship Akpata JCA (as he then was) had this to say concerning formulation of issues thus:-
“Counsel are to formulate issues in the appeal concisely and not to refer the court to the Writ or any portion of the proceedings or judgment for the purposes of ascertaining any of the issues in controversy.”
His Lordship went on to say that:-
“It is desirable that the Respondents’ brief should contain issues arising in the appeal or it should be specifically stated that the Respondent accepts the issues framed in the Appellants’ brief as the issues for determination in the Appeal.”
In the circumstances, I shall adopt the issues as formulated by the Appellants in determining same in this appeal.
The Appellants’ first issue is covered by the respondents’ issue two.
In arguing the Appellants’ issue one, the learned counsel to the Appellant submitted that the respondents’ declaratory and injunctive reliefs sought in the trial court must be proved through credible evidence, and that a party seeking a declaratory relief must rely on the strength of his case and not on the weakness of the defendants’ case, see NWADIOGBU V. NNADOZIE (2001) 12 NWLR (PART 727) 315 AT 330 paragraphs D – F. It was argued that the Respondents as plaintiffs did not give evidence as to how their ancestors, Oniwe family got to the land in dispute and that all that they stated was that the land belonged to Oniwe family, see evidence of PW1, page 15 of the printed records, it was argued that the evidence of tradition is vague as the evidence that their predecessors in title owned and possessed the land from time immemorial is not enough. Reference was made to the case of ACHIAKPA V. NDUKA (2001) 14 NWLR (PART 734) 623 AT PAGES 655 – 656 paragraphs H – C per Iguh J.S.C.
Further, that the Respondents did not prove exclusive possession in relation to their Claim, reference was made to the evidence of PW1, page 8, lines 182-183 of the records and PW2, page 15 lines 458 – 460 under cross examination, also the evidence of DW2 from Enurin family, of Oniwe, (page 24 -25 of the record) who gave evidence of tradition and how the Appellants got to the land in dispute.
It is the contention of the appellants that they have been in exclusive occupation/possession of the land in dispute with the prior knowledge and consent of the respondents and are deemed to be holders of the customary right of occupancy by virtue of Section 36(1) and (2) of the Land Use Act, see ADISA VS. OYINWOLA (2000) 10 NWLR (PART 674) 116 AT 164 paragraphs D – E, in defining trespass to the case of ENIOLOBO V. ADEGBESAN (2000) 11 NWLR (PART 698) 611 AT 623 paragraphs D – E.
In alternative argument without conceding that the Appellants’ family were given the land for farming only or are the Respondents’ tenants, it was submitted that the only relief open to the Respondents was for forfeiture of the customary tenancy and not for damages and injunction. Reference and reliance was placed on the following cases. MUEME V. GAJI (2001) 2 NWLR (PART 697) 289 AT 309 paragraphs E – H; OLUROTIMI V. IGE (1993) 8 NWLR (PART 311) 271; OLUGBODE V. SANGODEYI (1996) 4 NWLR (PART 444) 500. Further, that a customary tenant is liable to forfeiture at the will of the overlord on the proof of misconduct of the tenant in court, see MAKINDE VS. AKINWADE (2000) 2 NWLR (PART 645) 455 PARAGRAPHS G – H.
It was submitted by the learned counsel that, the Appellants cannot be liable for trespass and/or injunction be made against them, and that the order of injunction could not be tied to a certain piece of land, we were urged to resolve this issue in favour of the appellants.
In response to the Appellants’ first issue, it was submitted on behalf of the Respondents that both parties agreed that the Respondents are members of Oniwe family, having initiated this case themselves and on behalf of Oniwe family, Aaafin Ilawe Ekiti, page 4 of the records. It was argued that it is not disputed that the respondents inherited the land from Oniwe the 1st Alawe of Ilawe Ekiti, page 6, lines 115 – 120, in particular the evidence of PW1. At page 20, lines 644 and page 24, lines 834-835, that the PW1 admitted when confronted with Exhibit A5 that there is only one ruling house at Ilawe, that of the Respondents.
It was argued that the appellants did not object to the claim of the respondents at the visit to locus in quo i.e, the respondents claimed a larger piece of land while the Appellants claimed a smaller portion on the left side of the land in dispute.
It was argued that it is unchallenged evidence on record that the 1st Appellants’ father was a palace messenger’ page 20 and 24 of the records. The respondents agreed that the 1st appellant farmed on the land for more than 40 years, with their permission but without any right to harvest palm produce or felling of economic trees which is the reversionary interest of the respondents, page 7 of the records. It was the harvesting of the palm produce and felling of economic trees that gave rise to the present action’ reference was made to Exhibits ‘A – A5′. It was argued that the appellants owned the land in dispute at the same time admitting that the land is that of the royal family of the respondents. Reliance was placed on the case of AKANIWO VS. NSIRIM (2008) 1 SCNJ 275 – 322 at RATIO 2, PAGE 314. The appellants’ right was limited to cultivating on the land in dispute, that is farming alone and that mere possession does not vest title on the appellant.
It was argued that the trial court was right to have awarded general damages against the respondents who exceeded their right to farm on the land by harvesting palm produce and felling trees in 1999, constituting the act of trespass complained of by the respondents. See ODULAJA VS. HADDAD (1973) 11 SC 361.
It was the contention of the respondents that their traditional history was more plausible, conclusive, consistent, probable and more convincing when put side by side with the appellants’ story before the trial court. The respondents’ traditional evidence being inheritance from their royal fathers while the appellants claimed via long possession by the permission of the respondents’, undisturbed over the years until they harvested palm produce and felled economic trees in April, 1999.
It was argued that the Respondents gave clear evidence that the land is stool/royal land as admitted by DW1 (Gabriel Cook) and as shown in Exhibits’ A – A5′ to establish their right to harvest palm produce and fell economic trees, reference was made to IDUDUN V. OKUMAGBA (1976) 1 NWLR 200 and ATANDA V. AJAYI (1989) PART 11 AT 511 amongst other cases relied upon. Further, since the appellants as defendants admitted that the respondents owned the land in dispute there was no need to prove same, see VERITAS TNSURANCE CO. LTD.VS. TRUST INVESTMENT LTD. (1993) 3 NWLR (PART 281) AT 349 and Sections 19 to 26 of the Evidence Act.
We were urged to hold that the respondents proved their root of title, affirm the judgment of the trial court as well as that of the High Court in its appellate jurisdiction and dismiss the appeal in its entirety.
The issue for determination in respect of the first issue is whether the respondents led evidence, oral or documentary in the trial court as to their root of title and claims for damages for trespass and injunction to entitle them to judgment.
The law is now settled by the Apex Court that there are five ways a plaintiff could prove title to land in the case of IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227 also cited and relied upon by the learned respondents’ counsel. They are:-
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership,
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The plaintiff is not required to prove all five but would be entitled to a declaration if he is able to establish any one of the ways. See my earlier and recent decision in the case of ALHAJI RASAQ ADISA OYEBANJI VS. ALHAJI SALAWU AKINLOYE AKINLEYE (2010) 35 WRN PAGE 146 at 157 LINES 15 – 40.
It was the argument of the learned counsel to the Appellants that the respondents did not through evidence establish how their family (that is Oniwe family) got to the land in dispute, reference was made to page 6 line 97 of the records, contending that the respondents only stated that the land in dispute belonged to Oniwe family. It was argued that the PW2 also only testified that Oniwe family owned the land and nothing more, page 15 of the records, and that a party claiming on the basis of traditional history should prove how they got to own the land by giving evidence as to the vital particulars. Reference had been made to the evidence of PW1 and PW2 to the effect that the appellants had been farming on the land for more than forty years, pages 8 (lines 182-183) and 15 lines 458 460 of the records respectively, while DW2 gave evidence of how the appellants got to the land; pages 24 – 25 of the printed records, and having exclusive possession of the land in dispute with the prior knowledge and consent of the respondents, therefore that the appellants’ family is deemed to be holders of the Customary Right of occupancy by virtue of section 36(1) and (2) of the land Use Act and the authority of ADISA V. OYINWOLA (2000) 10 NWLR (PART 674) 116 at 164 PARAGRAPH E.
Both parties agree that the respondents are members of the Oniwe family, the royal family Aaafin Ilawe Ekiti, the PW1 and PW2 gave evidence that the land in dispute belongs to Oniwe family, Ilawe-Ekiti, and gave the boundaries of the disputed land, pages 6 7, and 12 respectively. PW3 and PW4, their boundary neighbours also testified to the same effect that the land in dispute belongs to the respondents. The PW1 at page 6 – 7 of the printed records, gave the history of the land in dispute, his evidence went thus:-
”I am suing the Defendants on behalf of Oniwe family ……………..The farm land belongs to Oniwe family, Ilawe-Ekiti: Oniwe family is the royal family where the Alawe of Ilawe is produced………..The land in dispute was inherited from Oniwe the first Alawe of Ilawe Ekiti. When the first Oniwe died, the land passed on to Akubelayo then to Aflnbiokin then to Akinola Adefolalu and now to Adeyemi Ademileka the present llawe-Ekiti………Akosile was the father of the Defendant and the defendant came to the land through Akosile who was at his life time a palace messenger to our late father Oba Akinola Adefolalu”‘ (Underlining mine for emphasis).
He further testified that they had been harvesting the palm fruits until 1999 when the 1st Appellant (defendant) employed the 2nd Appellant (defendant) to harvest the palm fruits for the first time which gave rise to the present action.
No doubt the land in dispute forms part of a larger portion of farmland at Omiolukun at Agbaje farmland belonging to Oniwe Family. The evidence of the respondents (as plaintiffs) as to the 1st appellant’s father Akosile being a palace messenger was unchallenged, this was also admitted by the DW1 (David Gabriel Cook) at page 20 lines 643 – 646 of the records when he testified thus:-
“The land in dispute is a royal family land. The father to the Defendant is a messenger to Afinbiokin between 19I7 – 1927.”
The evidence of the DW1 is in line with that of PW1 as to how the Defendant got to the land in dispute.
It is the law that an admitted fact by a contending party needs no further proof. Where a material fact as in the present case is admitted by the other party the court would act on it in favour of the party on whose behalf the admitted evidence is given. SEE ODOFIN VS. ONI (2001) 1 SCNJ 130 at 143, 144 – 147 and AKANIWO VS. NSIRIM (2008) 1 SCNJ, 275 – 322 at 313 – 314 RATIO 1.
I am in agreement with the lower court that the respondents as plaintiffs proved a better title than the appellants and at page 118 – 119 of the records rightly held thus:-
“Possession resides in the claimant that established a better title, see PIUS AMAKOR VS. BENEDICT OBIEFUNA (1974) 3 S.C. 67 at 82; OGUNBIYI VS. ADEWUNMI (1988) 5 NWLR (PART 93) 215, although the 1st appellant in this appeal was at the material time in possession of the land in dispute with the permission of the respondents family, the act of trespass in this case was the unauthorized harvesting of the palm produce and cutting of economic trees by the appellants on the land in dispute.”
I agree with the view of the lower court and evidence adduced that the 1st Appellant was in possession of the land in dispute with the consent/permission of respondents’ family for merely farming purposes only, which was exceeded in 1999 when the appellants without authority harvested some of the palm produce and cut down economic trees on the land in dispute and I so hold.
The evidence of the respondents as plaintiffs is that they came unto the land in dispute by inheritance from their royal father, that is their claim is through traditional evidence. The 1st Appellant has not claimed that his father Akosile was a member of the respondents’ royal family that owned the land in dispute, the appellants’ witness having also testified and agreed that the land in dispute is that of the Oniwe royal family.
The Appellants’ have claimed long possession, no doubt they have been farming on the land in dispute but with the permission of the respondent who did not disturb their presence on the land when they kept to the terms as per Exhibits ‘A’-‘A5′ until they harvested the palm produce and felled economic trees. The permission given to the 1st Appellants, father was merely to farm from the evidence adduced before the trial customary court, bearing in mind that no pleadings are filed in the customary court, evidence of PW1 and PW2 and that of DW1 (a member of the Appellant’s family) admitted that the land is royal land. See the cases of AKANIWO V. NSIRIM (SUPRA) OGUN VS. AKINYELU FALADE VS. LAWRENCE AWO (1975) 4 SC 215, amongst others cited and relied on by the learned respondents’ counsel.
It is the law that the evidence of a contending party admitting that his adversary owns the land in dispute presupposes that there is no further dispute as to who owns the land. I agree with the learned counsel that proof becomes superfluous, see VERITAS INSURANCE CO.LTD. VS. TRUST INVESTMENT LTD. (1993) 3 NWLR (PART 281) at 349, and Sections 19 – 26 of the Evidence Act.
The learned Appellants’ counsel had argued that the DW2 from Enurin family, the father of Oniwe, gave full and unchallenged detailed traditional evidence of the land in dispute and how the appellants got to the land in dispute. Page 25 of the records, in my view this line of evidence and argument would have been useful if the appellants had counter-claimed.
I am of the humble view that the respondents proved their root of title that they own the land in dispute.
In respect of the respondents’ claim for damages for trespass and injunction, as rightly observed by the rower court in its judgment, at page 118 of the records, the respondents ought to have sought an order of forfeiture against the appellants, that being the remedy available to the overlord against the erring customary tenant who defaults in paying tribute or rent but, in the present case, having declared the respondents as having title to the land in dispute, and since the respondents as plaintiffs did not seek outright, perpetual injunction restraining the appellants from entry into the rand in dispute, the fourth relief in the respondents, claim before the trial court as amended with the leave of court granted on 28/1/00 page 11 – 12 of the records, the relief was specific as to the injunction sought, it is to the extent of restraint of the defendants, their servants and agents from further trespassing on the said piece or parcel of land, for the purpose of harvesting from produce and felling economic trees, the portion added on amendment is particularly vital. This implies that the appellants’ right to merely farm on the land was not tampered with, though still subject to the permission/consent of the respondents and I so hold.
In the same vein therefore, the claim for general damages sought in their second relief for trespass committed by the appellant from April 1999 till the institution of this action is also in order in respect of harvesting farm produce and felling economic trees only. The resultant effect is that the respondents as plaintiffs were entitled to account being rendered of the palm produce harvested from the land in dispute by the appellants from April, 1999 till the disposal of the matter as claimed in their third relief without their permission or consent.
The injunctive relief as rightly held by the lower court is to the extent of harvesting palm produce and felling economic trees, the appellants having exceeded, what was granted to them but, could continue their farming rights. I am in agreement with the lower court who held in this respect concerning the appellants’ right at page 118 of the records thus:
“It was not an order; that they should vacate the farm where the court found that the 1st defendant had arable and economic crops.”
I am of the considered view that a breach of the right to merely farm on the land would naturally lead to forfeiture, see ABUDU LASISI & NAOR. V. OLADAPO TUBI & ANOR (1974) ALL NLR 923, ARE V. IPAYE (1990) 2 NWLR (PART 134) and AGOMUO V. AGUWA (1992) 1 NWLR (PART 216) 236.
In the prevailing circumstances, I resolve the appellants’ first issue against the Appellants in favour of the respondents.
The Appellants’ second issue (respondents’ first issue) is whether the respondents established the identity of the land with certainty as required by law. In arguing this issue, learned counsel to the appellants referred to the boundaries of the land in dispute as in the claim before the trial court, page 4 of the records, the boundaries as given by the PW1 (1st plaintiff), Page 6 of the records and as given by the PW11 – Ajibade patrick, page 12 of the records. Reference was also made to the evidence of the PW3 Rapheal Areola a boundary neighbour to the land in dispute, who, learned counsel argued testified that he did not know whether the appellants as defendants farmed on the land or not, similarly the evidence of PW4.
It was argued that the respondents claimed that the appellants’ family was given permission to farm on the land in dispute and had been farming there for forty years, the boundary men did not know where the appellants/defendants farmed, as opposed to the DW1, learned counsel submitted, gave boundaries of the land in dispute, (page 19 of the records) while agreeing that the trial court visited the land in dispute with the parties and their counsel, it was argued that the observation of the trial court on the identity of the land in dispute cannot take the place of evidence, to ascertain the identity of the land in dispute. Learned counsel agreed that the trial court visited the locus-in-quo on 11th August, 2000, pages 27-28 of the records, after which the case was adjourned to 28th August, 2000 to enable the parties and their witnesses confirm their evidence at the locus-in-quo, page 28 of the records.
It was submitted that the trial court gave its report without recourse to the parties to confirm their evidence at the locus-in-quo. Further, that the learned trial judge did not make any finding as to the identity of the land in dispute in their report on the visit to locus-in-quo, reference was made to the trial judge’s holding at page 94 of the records, to the effect that the argument that the certainty of the boundaries of the land in dispute is not known as being groundless. It was argued that the trial court should have given a report of the boundaries or allowed the parties to confirm the evidence as to boundaries of the land in dispute as given by different witnesses, after the visit to locus-in-quo. It was stressed by learned counsel that the identity of the land in dispute is uncertain and that the finding of the learned judge as an appellate court was perverse and had no evidence on record to support it.
It was submitted that the onus is on a plaintiff seeking a decree of declaration of title to land to show clearly the area to which his claim relates, reliance was placed on the case of IORDYE V. IHYAMBE (2000) 15 NWLR (PART 692) 675 AT 682 PARAGRAPHS B – C. We were urged not to grant a declaration of title where boundaries of the land in dispute remain obscure and not proved. Also, that the respondents having failed to prove the identity of the land in dispute their claims for declaration of title, trespass and injunction ought to have been dismissed. We were urged to resolve this issue in favour of the appellants allow the appeal and dismiss the respondents’ claims.
In response, the learned counsel to the respondents submitted that the identity of the land in dispute was not in dispute at the trial court as both contending parties sufficiently identified the land in dispute, reference and reliance was placed on the case of ISO & ORS. VS. ENO (2003) 7 SCNJ PAGE 82 – 89 RATIO AT PAGE 83. It was submitted further that the respondents were certain of the land claimed on the visit to locus-in-quo, see DABO VS. ABDULLAHI (2005) 2 SCNJ 76-102 AT 92 RATIO 6, OGUN VS. AKINYELU (2004) 12 SCNJ PAGE 196 – 217 AT 212 RATIOS 7 AND 8. It argued that was that the identity of the land was not an issue before the trial court, each party not only showed to the trial court the potion claimed but identified the physical features on the land and the boundaries, page 31 fine 1092-1124, and that the record was not faulted by counsel on both sides.
It was the argument of learned counsel that the land was well known to both parties reliance was placed on the cases of ODOFIN & ORS. VS. ONI (2001) 1 SCNJ 130 AT 143, 144 – 147, OLUSANMI VS. OSASONA (1992) SCNJ (PART 2) AT 282 and SEIMOGRAPH SERVICE VS. AKPOUROBE (19769) 6 SC 119. Further, that the appellants did not raise objection as to how the inspection was carried out at the locus and the record of the inspection was not attacked in the appeal before the lower court.
It was submitted by the learned counsel that the parties might have referred to the land in dispute by different names but the same location; it does not diminish the credibility of the respondents on the identity of the land. It was argued that the identity of the land was not an issue at the trial court; therefore it cannot be looked into on appeal. See OGUN V. AKINYELU (supra) and GARBA VS. AKACHA (1966) NMLR 62, and OLUSANMI VS. OSHASONA (1992) 6 SCNJ (PART 2) at 282.
Finally, it was submitted by learned counsel that the respondents’ evidence satisfied the test as laid down in the case of KWADZO VS. ADJEI 10 WACA at 274 to the effect that a surveyor taking the record should be able to produce a plan showing accurately the land to which title has been given.
We were urged not to disturb the judgment of the trial court and that of the High Court on appeal, but, resolve this issue in favour of the respondents.
From the court’s records, both parties agreed that the trial court visited the locus-in-quo on 11th August 2000, with parties and their counsel present, pages 27-28 of the records, the court made observations on the identity of the land.
The essence of a visit to locus-in-quo in land matters includes location of the disputed land, the extent, boundaries and boundary neighbours, and physical features on the land. It is not on record that the parties disagreed on the extent, location and or physical features on the land in dispute during the visit to locus-in-quo. The purpose of a visit to locus-in-quo in a land case is to enable the court see objects and places referred to in evidence physically and to clear doubts arising from conflicting evidence if any about physical objects on the land and boundaries. See, ODICHE V. CHIBOGWU (1994) 7 NWLR (PART 354) 78; (1994) 7 – 8 SCNJ 317, BRIGGS VS. BRIGGS (1992) 3 NWLR (PART 228) 128 S.C.; (1999) 3 SCNJ 75.
There is nothing on record to show that there was disagreement as to the identity or certainty of the land in dispute on the visit to the locus-in-quo. The learned counsel to the Appellants had argued that the trial court gave its report (at pages 31-32 of the records) without recourse to the parties “to confirm their evidences at the locus-in-quo”. It is my observation that after the report, the learned counsel to the appellants (then defendants) addressed the court without any objection, (page 32 of the records) as to the visit to locus-in-quo or the report, complained about on appeal. Even though the boundaries of a disputed land must be strictly proved and ascertained, in this case where both parties and their respective counsel and the court were present during the visit to locus-in-quo, where the parties know and identified the land in dispute with certainty, no other proof would be required.
It is the law that the onus on the plaintiff of proof of land in dispute by oral description is discharged if any surveyor, acting on such description, can produce a plan of the land in issue, see BARUWA V. OGUNSHOLA (1938) 4 WACA 159. The test of such oral description or evidence was laid down by Kingdom C. J. in KWADZO V. ADJEI (SUPRA) as follows:-
“The acid test is whether a surveyor, taking the record could produce a plan showing accurately the land to which title has been given”. See also ADESANYA VS. ADERONMU (2000) 13 WRN 104 at 120.
I am at one with the view of the learned judge at page 94 of the records when he held that if there was any doubt as to the certainty of the land in dispute it had been cleared by the visit of the trial court, parties and their counsel to the locus in quo. There was no objection as to the manner in which the inspection was carried out and the subsequent report on record by the court. The identity of the disputed portion was not hazy or uncertain to the parties or the trial court and I so hold.
In my considered view, there was no need for confirmation of the evidence as to the boundaries after the visit to locus-in-quo. The case of IORDYE (SUPRA) relied on by learned counsel to the appellants does not apply in the present case where the parties and their counsel were present when the trial court visited the locus-in-quo and the parties had no doubt as to the portion of land in dispute, it would apply where the plaintiffs were unable to establish the extent of the land claimed.
I am in agreement with the learned counsel to the respondents that, the appellants did not object to the claim of the respondents at the locus-in-quo. The identity of the land in dispute is therefore not in doubt and was not an issue before the trial court, as same was sufficiently identified where both parties showed the side claimed by them without objection from the appellants to the effect that they did not know the portion being claimed by the respondents. The issue of identity of the land therefore ought not to be an issue now on appeal and I so hold. The second issue is, therefore resolved against the appellants.
In the final analysis, the appeal fails and is dismissed for lacking in merit. I affirm the decision of the learned judge A.S. Daramola, J. of the Ekiti State High Court sitting at Ikere-Ekiti Judicial Division, of 25th March, 2003 in Suit No.HCR/12A/2000. I award costs of N30,000.00 (Thirty Thousand Naira) in favour of the Respondents.
UWANI MUSA ABBA-AJI, J.C.A.: I have had the privilege of reading in advance, the leading judgment of my learned brother, C.N. Uwa, JCA. just delivered and I agree with the reasoning and conclusion that the appeal is devoid of any merit and ought to be dismissed.
I also dismiss the appeal and abide by the consequential order made including order as to costs.
HARUNA MOH’D TSAMMANI, J.C.A.: I had the privilege of reading before now, the lead judgment delivered by my learned brother C.N. Uwa, JCA. My learned brother has adequately resolved the issues that arose for determination in this appeal. I agree with his reasoning and conclusion thereon. I have nothing else useful to add.
For the reasons stated in the lead judgment, I too will dismiss this appeal as lacking in merit. I abide by the order as to cost.
Appearances
Bamidele Omotoso Esq.For Appellant
AND
Sir (Chief) Goke Adurota;
Johnson Ashojo Esq.For Respondent
