CHIEF ISAAC OLOKUNLADE & ANOR V. MR. ABEGUNDE SAMUEL & ORS
(2010)LCN/4109(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of December, 2010
CA/IL/15/2010
RATIO
PROOF OF TITLE TO LAND: WAYS OF PROVING TITLE TO LAND
The law is now settled by the Apex court that there are five ways of proving title to land in the case of IDUNDUN V. OKUMAGBA (1976) 9 10 SC 227; NMLR 200 these are: (i) Traditional evidence. (ii) Production of documents to title duly authenticated and executed. (iii) Acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person is the owner. (iv) Acts of long possession and enjoyment.
(v) 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 party claiming title needs to plead and prove only one of the five ways and not all the five, proof of one is enough to be entitled to a declaration. It is trite law that the plaintiff must prove title or prove to have been in exclusive possession as approved in the old case of EKPO V. ITS 11 NWLR 68, also relevant is the case of EKANEM V. AKPAN (1991) 8 NWLR (PART 211) 616 AT 631. PER CHIDI NWAOMA UWA, J.C.A.
BURDEN OF PROOF : WHETHER THE BURDEN OF PROOF IN A CASE FOR A DECLARATION OF TITLE TO LAND LIES ON THE PLAINTIFF
It is a settled principle of law that in all cases where a plaintiff for a declaration of title to land, the burden lies on such plaintiff to his case based on his evidence, and would fail if he fails to discharge that burden. See KODILINYE V. ODU (1935) 2 WACA 336, ELUFISIOYE V. ALABETUTUT (1968) NWLR 298, GANKON V. UGOCHUKWU CHEMICAL INDUSTRIES LTD. (1993) 6 NWLR (PART 297) 55 and ECHI V. NNAMANI (2000) 8 NWLR (PART 677) 1 AT 12 also ALAO V. AKANO (SUPRA). PER CHIDI NWAOMA UWA, J.C.A.
NATURE OF THE BURDEN ON THE PLAINTIFF WHO RELIES ON EVIDENCE OF TRADITION IN PROOF OF DECLARATION OF TITLE TO LAND
It is the law that where evidence of tradition is relied on in proof of declaration of title to land the burden is on the plaintiff to plead and prove facts such as: (a) Who founded the land; (b) How did he found the land; and (c) Particulars of the intervening owners through whom he claims. See ONWUGBUFOR V. OKOYE (1996) 1 NWLR (PART 424) 252, PAGE 280, also ANABORAONYE V. NWAKAIHE (1997) 1 NWLR (PART 482) 374 at 383. In ONWUGBUFOR V. OKOYE (SUPRA) AT PAGE 280, His Lordship Iguh, JSC re-emphasized the position of the law thus:- “The point has repeatedly been made and it seems to me well settled that it is not sufficient for a party who relies for proof of original title to land on tradition to merely plead that he and his predecessors’ in title had owned and possessed the land in dispute from time immemorial without more. The question of original ownership of land from time immemorial is an issue of hard historical facts. Accordingly materials and necessary facts to sustain a claim musty be clearly averred and proved. And they are not established by sweeping and vague assertions that the land is owned by the plaintiff from time immemorial or from time beyond human memory without further details. Such sweeping assertions clearly leave the traditional evidence at large and in the air and can be fatal to a plaintiff’s case if they are the only root of tile relied on. See ALADE V. LAWRENCE AWO (1975) 4 SC 215 at page 229.” (Underlining mine for emphasis) PER CHIDI NWAOMA UWA, J.C.A.
CONSEQUENCE OF THE FAILURE OF A PLAINTIFF TO SATISFY THE COURT THAT HE IS ENTITLED TO THE DECLARATION OF TITLE SOUGHT
In the instant case, the Appellants failed to prove their case on the balance of probability. In my humble view, they did not prove their title to the land to which they sought a declaration. See ELIAS V. OMOBARE (1982) 5 SC 25; AKINOLA V. OLUWO (1962) 1 SCNLR 352 and NWAGBUGU V. IBEIAKO (1972) 2 ECSLR (PART 1) 335. The Respondents as defendants in the trial Court did not counter claim, and did not have to prove ownership, all that is required of them is to defend, see KODILINYE V. MBANEFO ODU (1935 CASE) (2003) 36 WRN 175, 1935 2 WACA 336 at 337, AWUZIE V. NKPARIAMA (2002) 1 NWLR (PART 741) 1 AT 9-10 and OYABANJI V. AKINLEYE (2010) 35 WRN PAGE 146 at PAGE 1609. In the old case of KODILINYE V. ODU (SUPRA) at page 180, His Lordship, Webber C.J., on the need for the plaintiff to satisfy the court that he is entitled to the declaration of title sought as in this case, had this to say:- “The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant. Such judgment decrees not title to the defendant, he not having sought the declaration”. (Underlining mine for emphasis) PER CHIDI NWAOMA UWA, J.C.A.
PLEADINGS: EFFECT OF A PLEADING NOT SUPPORTED BY EVIDENCE
This averment was not supported by evidence, oral or documentary, I did not see any on record; therefore the pleading not supported by evidence as rightly argued by the learned Appellants’ counsel goes to no issue and must be disregarded. See N.I.P.C. V. THOMPSON ORGANISATION & ORS (1969) 1 NMLR 99 (104); AKINFOSILE V. IJOSE (19600 5 FSC 192; (1960) SCNLR 447 and ESEIGBE V. AGHOLOR (1990) 7 NWLR (PART 161) 234 at 248. In the case of AKINGBOYE V. SALISU (1999) 7 NWLR (PART 661) 434 at 453, His Lordship Adamu, J.C.A. in this respect had this to say in a similar situation restated that:- “It is trite and an elementary rule of pleadings that an averment in the pleadings on which no evidence is led or called in proof is deemed to have been abandoned.” PER CHIDI NWAOMA UWA, J.C.A.
CUSTOMARY TENANCY: ESSENCE OF PAYMENT OF TRIBUTE TO THE OVERLORD UNDER A CUSTOMARY TENANCY AGREEMENT; WHETHER A CUSTOMARY TENANCY AGREEMENT CAN EXIST WITHOUT PAYMENT OF TRIBUTE TO THE OVERLORD
In the present case there was need to prove customary tenancy for the Appellants to be entitled to their claim in paragraph 27(ii) of their statement of claim, that is, forfeiture of the customary tenancy agreement which their case was predicated upon. The main requirement or ingredient of customary tenancy is the payment of tribute to the overlord which results in the holding in perpetuity, subject to good behavior. They could then be dislodged by a claim of forfeiture for any reason under native customary tenure. See ABUDU LASISI & ANOR V. OLADAPO TUBI & ANOR. (1974) ALL NLR 923 AT 926; (1974) 9 NSCC 613 AT 616, ARE V. IPAYE (1990) 2 NWLR (PART 134) 298 AT 321, AGOMUO V. AGUWA (1992) 1 NWLR (PART 216) 236 AT 250. There was no proof of payment of such tribute apart from the averment in paragraph 10 above, even though in some cases some landlords dispense with, the payment of the tribute which could be cash or in farm produce like, yams, corn etc. the customary tenancy would still exist without any tribute paid as long as the customary tenants recognize that they are on the land, at the mercy of their overlords. See LAWANI V. ADENIYI (1964) 3 NSCC 231, 233 and MAKINDE V. AKINWALE (2000) 1 SC 89 AT 94-95; (2000) 2 NWLR (PART 645) 435 AT 447. In the case at hand, there is no evidence that the Respondents or their predecessors recognized the Appellants as their overlords, there is no proof that they paid any tribute to them, if anything the respondents in their defence claimed that they are owners of the land and have always exercised rights of ownership and gave account of how they got to the land in dispute. See NWOSU V. UCHE (SUPRA) cited by the learned counsel to the Respondents also, BABATUNDE V. AKINBADE (2006) NWLR (PART 975) 44 AT 61 E-H, EJEANALONYE V. OHABUIKE (1974) 4 ECSLR 435; LASISI V. TUBI (1974) 1 ALL NRL 438, and MAKINDE V. AKINWALE (2000) 2 NWLR (PART 645) 435. 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 MOHD TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF ISAAC OLOKUNLADE
2. CHIEF BENJAMIN FOLORUNSHO OLONILUYI Appellant(s)
AND
1. MR. ABEGUNDE SAMUEL
2. MR. OJO ADEYEFA
3. MR. PIUS OTEWOGBOLA Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Ekiti State High Court, sitting at Omuo Ekiti delivered by D. O. Jegede, J on the 4th day of June, 2008 in which the court dismissed the plaintiffs’ (now Appellants) case in its entirety.
The Appellants as plaintiffs on behalf of Olokoju family of Iluomoba Ekiti filed an action against ,the Respondents as defendants in the lower court and claimed as follows:-
(i) A DECLARATION that the large piece or parcel of land known as ‘Ehin Isesi farm land’ lying, situate and being along Iluomoba/Igbemo Road, Iluomoba Ekiti belong absolutely to Olokoiu family of Iluomoba Ekiti.
(ii) A FORFEITURE of the customary tenancy agreement granted the defendants on the piece or parcel of farmland lying, situate and being along Iluomoba/Igbemo Road, otherwise ‘known as ‘Ehin Isesi farmland’ Iluomoba Ekiti for fundamental breach of the said agreement.
(iii) A sum of N50, 000.00 each being a reasonable estimate of the arrears of annual rent/royalty owned by the defendants for the period estimated at 10 years when they stopped the said payment without any justification whatsoever which hitherto had been paid by their forefathers.
(iv) A PERPETUAL INJUNCTION restraining the defendants, their agents, servant, privies or anybody claiming title paramount from planting permanent crops like cocoa oil palm, coffee or erecting any permanent structure on the land in dispute without the express written permission of the plaintiff.
(v) A PERPETUAL INJUNCTION restraining the defendant, their agents, servants, privies or anybody claiming title from them from harvesting the palm trees and/or cutting the timber trees in the land in dispute without the express written permission of the plaintiffs.”
At the end of the trial, the learned trial judge in his judgment dismissed all the plaintiff’s/Appellants’ claims.
The back ground facts on the Appellants’ part is that the land in dispute known as “Ehin Isesi farmland” belongs to their family and that the Respondents are their customary tenants who refused to pay annual rents estimated at N50, 000.00, for this reason, they prayed the lower court to resttain the respondents from planting economic crops on the land in dispute or felling Economic trees.
On the other hand the Respondents also claimed the land in dispute belongs to their family, Anaun family of Iluomoba Ekiti who has been on the land from time immemorial and exercising various acts of ownership over same. They denied being the customary tenants of the Appellants.
Aggrieved by the decision of the trial court, the Appellants filed their Notice of Appeal of 1/8/08 containing eight (8) grounds of Appeal from which six (6) issues were formulated for determination by this court, they are: –
“1. Whether the Appellant proved through credible evidence their traditional history of ownership of the land and whether the minor contradiction pointed out by the learned trial judge is fatal to the Appellants case.
2. Whether it is compulsory to reply to a statement of defence of a defendant where it merely joined issues with plaintiff’s Statement Claim.
3. Whether the learned trial judge was right in holding that the admission by PW2 that the Respondents have crops on the land is evidence of ownership by the Respondents.
4. Whether the learned trial judge was right in relying on technical issue in arriving at his decisions.
5. Whether the cost of N10, 000 was excessive.
6. Whether consequent upon the proof of the case against the Respondents, the Appellants are entitled to damages and perpetual injunction.”
The Respondents on their part raised four issues for determination as follows:-
“(i) Whether on the evidence adduced the appellants were entitled to a declaration of title over the land in dispute.
(ii) Whether the appellants are entitled to the award of injunctive reliefs against the Respondents.
(iii) Whether from the totality of the evidence adduced by the parties in this suit it can rightly be said that the respondents are customary tenants to the Appellants-
(iv) Whether the award of costs of N10, 000 by the trial court against the Appellants and in favour of the Respondents was excessive.”
When the appeal was argued, the learned counsel to the Appellants Owoseni Ajayi Esq. adopted and relied on his brief of argument dated and filed on 27/4/10. Also, the Appellants’ reply brief dated and filed on 7/6/10 but, deemed as properly filed and served on 8/6/10 in response to the Respondents’ brief of argument in urging us to allow the appeal.
While on behalf of the Respondents the learned counsel adopted and relied on his brief of argument dated 6/5/10, filed on 12/5/10.
In arguing the appeal, the learned Appellants’ counsel adopted the order in which the issues were formulated but argued the 1st and 6th issues together. It was submitted that the PW1 the star witness for the Appellants testified as to how the Olokoju Family became seized of the land in dispute from their progenitor, Okerenaga, which it was argued, corroborated the evidence of PW2, PW3 and PW4. Further, that evidence of traditional history is one of the ways to establish title to land, the burden of proving, which they have discharged through their evidence, reliance was placed on the case of OYADE V. KEJI (2005) 7 NWLR (PART 925) PAGE 571 AT 592 PARAGRAPHS D – G. It was argued that the traditional history of the land was pleaded in paragraphs 16, 17, 18 and 19 of the Statement of Claim.
It was submitted that the land was allocated to the Appellants as virgin land during the reign of Ajagun of Iluomoba, Ajagun Obalebojuotupe, confirmed by the present Ajagun of Iluomoba, who testified as PW3 who gave the name as Ajagun Dero and later Ajagun Obalebojuotupe. :
It was refuted by the Appellants that any other member of Anaun Family owned land in the area in dispute except the Respondents who are said to be on the land by consent of the Appellants. It was contended that the Appellants proved their :ownership of the land in dispute through inheritance and deserved a declaration of title to the land by the learned trial judge, which entitled them to damages and a forfeiture of land by the Respondents, reliance was placed on the case of ADENIRAN V. ALAO (2001) 18 NWLR (PART 745) PAGE 361 AT PAGE 390 PARAGRAPH F, and AJAO V. OBELE (2005) NWLR PART 918 PAGE 400 AT PAGE 420, PARAGRAPH E. while relying on the case of OYADARE V. KEJI (SUPRA) PAGE 585, PARAGRAPH D it was submitted that once a claim of trespass succeeds, the consequential relief of order of injunction would follow to protect possession.
In arguing their issue two, in respect of paragraphs 12 – 16 of the Respondents’ statement of defence which the learned trial judge held were not denied by the Appellants and same were deemed admitted, the Appellants argued that they averred in their statement of claim how they came unto the land through one Ajagun, which the Respondents on their part refuted and gave their account of how they came to the land, which as argued, that the Respondents merely joined issues with them, and that there was no need to respond in the form of filing a reply. The conditions for filing a reply was given as enumerated in the case of BALOGUN V. E.O.C.B NIGERIA LTD (2007) 5 NWLR PART 1028 PAGE 584 PAGE 610-611 PARAGRAPH G-B. It was argued that the two contending stories should have been examined and believed one, rather than hold that we did not deny such averments and deemed the appellants to have admitted the Respondents’ Claim.
On the Appellants’ issue three, it was submitted that even though the PW2 admitted that the Respondents as defendants had crops on the land, it is in line with paragraphs, 9-12 of their statement of claim to the effect that the Appellants granted land to the Respondents’ father who planted crops on payment of royalty to the, Appellants there being in existence customary tenancy between the fathers of the parties which was never breached until the farm was inherited by the Respondents.
Further, that as customary tenants, the Respondents have no interest on the land but could cultivate crops; reference was made to the case of JINADU V. ESUROMBI-ARO (2005) 14 NWLR PART 944 AT PAGES 201-201 PARAGRAPHS D-B relied upon by learned counsel to the Appellants. It was the submission of learned counsel that the, Respondents having breached the conditions precedent to the grant of the customary tenancy, they forfeited the tenancy and that the evidence of PW1, PW2 and PW3 corroborated evidence of the breach for the following reasons:-
(a) Claim of Ownership;
(b) Refusal to pay the tribute due;
(c)A direct denial of overlord’s title by setting up a rival title as done by the defendants in this case;
(d) Cultivation of the economics (sic) trees thereof.
In support of this argument learned counsel cited and relied on the case of AJAO V. OBELE (2005) (SUPRA) AT 412-422 PARAGRAPH G-C.
Further, that the Respondents having challenged the title of their by claiming title to the land where they were allowed to farm and amounts to a clear case of misconduct and liable to forfeiture.
It was the contention of learned counsel that the learned trial judge was wrong to hold that the Respondents, own the land because the PW2 gave evidence that the Respondents, had crops on the land, instead that an order of forfeiture ought to have been made against the Respondents for was the contention, of learned counsel that the learned trial Judge for challenging the title of the Appellants, their overlords.
On their fourth issue, it was submitted that the lower court erroneously made a major issue of the purported minor contradiction in the name of the reigning Ajagun who gave the land to the Appellants fathers, which the trial court used to dispossess the Appellants of their land.
Reference was made to page 79, paragraphs 4 – 5, page 80 paragraph 1 and page 83 paragraphs 5 of the printed record. The learned Appellants’ counsel in his brief of argument argued and termed the contradiction in the name of the Ajagun as a mere technical slip which ought not to have defeated the end of justice that the reliance on technicalities led to injustice. The following cases were cited and relied upon, OGBAEGBE V. F.B.N.PLC (2005)18 NWLR PART 953 PAGE 357 AT 377 PAGES C-D, AFOLABI V. ADEKUNLE (1983) 2 SCNLR PAGE 141 and BILO V. A-G OYO STATE (1986) 3 NWLR PAGE 5 AT PAGE 828. Short of reliance on technicalities, it was argued, the Appellants case succeeded.
With the Appellants’ fifth issue, concerning excessive costs awarded without the Respondents, asking for it, it was, conceded that the of costs is at the discretion, of the court but, should be exercised judiciously and judicially. It was argued that the Appellants were not given a chance to address the court on the issue of costs. Reference was made to the case of U.B.A V. A.C.V. (2005) 12 NWLR PART 939 PAGE 232. Also, MORAKINYO V. ITODO (2007) 7 NWLR PART 1034, PAGE 443. We were urged to hold that the Appellants not having been heard the issue of costs amount to lack of fair, hearing. We were urged to set aside the costs awarded by the learned trial court as being unmerited, excessive, and perverse. See ISHAKU V. AINA (2004) 11 NWLR (PART 883) PAGES 146 AT 177, PARAGRAPH E. It was submitted that this court cannot award more than N10, 000.00 (Ten Thousand Naira) in civil cases therefore that the trial court’s award of same is excessive.
We were urged to allow the Appeal, set aside the decision of trial court and instead allow the Appellants claim.
In arguing the Respondents four issues as formulated in their argument, in respect of issue one, it was submitted that it is where the plaintiffs claim is essentially, declaratory, the duty is on succeed on the strength of, his case and not on the weakness of the defendants’ case, Reliance was placed on the case of ALAO V. AKANO (2005) 11 NWLR (PART 935) 160 AT 173 PARAGRAPHS C-D. The party claiming to be entitled to the declaration must satisfy the court through evidence that he is entitled to the claim. The case of NKWOCHA V. OFURUM (2002) 5 NWLR (PART761) 506 AT 524 was cited and relied upon. The following were listed as material facts the Appellant are required to plead and lead evidence in support of:-
1. How the Appellants got to the land in dispute.
2. The names and history of the Appellants’ ancestors or forebears as to disclose continuous claim
3. Various acts of ownership exercised by the Appellants on the land.
It was argued that the Appellants tailed to plead material and adduce credible evidence on how they got to the land in dispute, was made to paragraphs 6, 16, 17, 24 and 25 of their statement of claim. For instance, in paragraph 24 while it was pleaded that their were the first settlers on the land in dispute, in paragraph 25 pleaded that it was Obalebojuotupe who ruled for over 500 years ago in Iluomoba Ekiti that allocated the land in dispute to them. Also in paragraphs 6, 16 and 17 it was averred that their ancestors have been farming and hunting on the land in dispute from time memorial, all of which it was argued are conflicting. In paragraph 24 of the of claim the Appellants pleaded that they migrated from Ijesa-Isu and paragraphs 6, 16 and 17 it was averred that their ancestors have farming and hunting on the, land in dispute from time immemorial, on the virgin land. It was submitted that the evidence of PW1 and were contradictory, as to where Chief Adesuyi their grandfather came from, while the former said he came from Ijesa-Isu the latter said he was from Iluomoba. In a similar manner the PW2 testified that Okerenaga was their forefather who led them from Ijesa-Isu to Iluomoba Ekiti.
It was argued that the Appellants are not entitled to the declaration of title to the land in dispute in view of their failure to adduce credible evidence in support of their claim. Reliance was placed on the case of OLOKOTINTIN V. SARUMI (2002) 13 NWLR (PART 784) 307 AT 315, C – F. It was argued that the Appellants did not lead evidence to prove or show who granted the land in dispute to them considering the contradictions.
On the other hand, the Respondents contended that they were, able to establish that they were in actual possession of the land in dispute, and reference was made to Section 146 of the Evidence Act in arguing that the Appellants failed to discharge the burden on them that the Respondents are not the owners of the land in dispute. It was submitted that the pleadings and evidence of traditional history given by the Appellants are unsatisfactory to entitle them to the declaration of title sought. We were urged to resolve this issue in favour of the Respondents.
In arguing their second issue, it was submitted that the Appellants failed to rebut the presumption of the Respondents ownership of the land in dispute through credible evidence and also failed to prove that they are entitled to the declaration sought, we were urged to dismiss the claim for perpetual injunction against the Respondents, the Appellants having tailed to prove that the Respondents are their customary tenants. We were urged to resolve this issue in favour of the Respondents.
On the Respondents’ third issue, it was submitted that no form of tenancy agreement was shown to have been entered into between the Appellants and the Respondents; reliance was placed on the case of NWOSU V. UCHE (2005) 17 NWLR (PART 955) 577 AT 591 D-F, that there was no proof of customary tenancy on the Part of the Appellants, also cited was the case of BABTUNDE V. AKINBADE (2006) 6 NWLR (PART 975) 44 AT 61 E-H.
On the Respondents fourth it was the submission of the learned counsel concerning costs that a successful party in a civil claim is as of right entitled to costs unless there are circumstances warranting the contrary. It was submitted that the award of costs is discretionary, see MAYA V. OSHUNTOKUN (2001) 11 NWLR (PART 723) 62 AT PAGE 85 PARAGRAPHS F-G, and that unless it is shown that the trial court failed to exercise its discretion judicially and judiciously, this court would not interfere with the award of N10, 000.00 costs in favour of the Respondents.
We were urged to resolve this issue in favour of the Respondents, and dismiss the appeal, the Appellants having failed to prove better title to the land in dispute that the Respondents are their customary tenants and the claims for arrears of rent of N50, 000.00.
In the Appellants’ reply brief dated and filed on 7/6/10, deemed properly filed and served on 8/6/10 we were urged to discountenance the issues as formulated and argued by the Respondents. We were urged to discountenance the Respondents argument that over 500 years equated to be time immemorial as interpreted and accepted by the court that the Appellants had been on the land, which the trial court held to be contradictory.
The Appellants refuted the argument that they did not call any of their grantors to support their case, and submitted that PW3, the reigning Ajagun Iluomoba whose progenitor is said to have granted the land to the Appellants testified to add weight to their evidence of traditional history on how the Appellants got the land, see OHIAERI VS. AKABEZE (1992) 2 NWLR (PART 221) PAGE 1, it was submitted that based on this the Appellants ought to have been given judgment.
On the issue of cost awarded, the learned Appellants’ counsel merely reargued his earlier submissions in his brief of argument. We were once again urged to allow the appeal.
The issues for determination as formulated by the parties have similar contents but differently couched. I would for convenience in determining the appeal summarize the issues as follows:-
1. Whether the Appellants proved though credible evidences their traditional history and therefore entitled to a declaration of title over the land in dispute.
2. Whether from the totality of the evidence adduced by the parties in this suit, the Respondents could be rightly said to be customary tenants to the Appellants. ,
3. Whether the Appellants are entitled to the award of arrears of rent claimed and the, injunctive reliefs against the Respondents.
4. Whether the award of costs of N10, 000.00 against the Appellants by the trial court was excessive.
The law is now settled by the Apex court that there are five ways of proving title to land in the case of IDUNDUN V. OKUMAGBA (1976) 9 10 SC 227; NMLR 200 these are:
(i) Traditional evidence.
(ii) Production of documents to title duly authenticated and executed.
(iii) Acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person is the owner.
(iv) Acts of long possession and enjoyment.
(v) 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 party claiming title needs to plead and prove only one of the five ways and not all the five, proof of one is enough to be entitled to a declaration. It is trite law that the plaintiff must prove title or prove to have been in exclusive possession as approved in the old case of EKPO V. ITS 11 NWLR 68, also relevant is the case of EKANEM V. AKPAN (1991) 8 NWLR (PART 211) 616 AT 631.
In the present case, the plaintiffs’ claim (now Appellants) includes a declaratory relief; the onus is on the Appellants to prove their title and succeed on the strength of their case and not on the weakness of the Respondents’ case as defendants. It is a settled principle of law that in all cases where a plaintiff for a declaration of title to land, the burden lies on such plaintiff to his case based on his evidence, and would fail if he fails to discharge that burden. See KODILINYE V. ODU (1935) 2 WACA 336, ELUFISIOYE V. ALABETUTUT (1968) NWLR 298, GANKON V. UGOCHUKWU CHEMICAL INDUSTRIES LTD. (1993) 6 NWLR (PART 297) 55 and ECHI V. NNAMANI (2000) 8 NWLR (PART 677) 1 AT 12 also ALAO V. AKANO (SUPRA). It was required of the Appellants to have led sufficient and cogents, credible evidence in proof of their title. The question now is: have the Appellant’s led evidence to prove that they are entitled to the declaration sought by them?
There is no dispute as to the portion of land in question. The Appellants from their pleadings and evidence claimed title through traditional history which is one of the accepted methods of establishing title to land. In their submissions before this court, the Appellants claim to have discharged the burden required of them through evidence of traditional history in Support of their pleadings, Paragraphs 16, 17 and 19 of their statement of claim were specifically referred to as supporting their claim. It was pleaded thus:-
“16. The plaintiff aver that their ancestors had been farming and hunting on the land in dispute since time memorial.
17. The Plaintiffs aver that among the Plaintiffs’ forefathers who had farmed in and around the land in dispute were:-
(a) Okerenga, their great progenitor.
(b) Agburugburu Ijokun who died over 400 years ago.
(c) Omowaye.
(d) Omokogba.
(e) Chief Agege who died over a century ago
(f) Chief Adesuyi who died about 90 years ago.
(g) Chief Ojambati who died years ago, about 49
(h) Pa Paul Olaniluyi who died about 9 years ago. :
(i) Chief Jeremiah Aladeloba who died about 7 years ago.
18. Further to paragraph 17 above, the plaintiffs aver that among those who are still farming and cultivating crops in the land are:-
(a) Chief Benjamin Ola, the Elejofi of Iluomoba Ekiti.
(b) Zacheaus Adedara.,
(c) Chief Orimolade Joseph, the Edemo of Iluomoba Ekiti.
(d) Benjamin Folorunso Oloniluyi.
(e) Chief Isaac Olokunlade, the Olokoju of Iluomoba Ekiti.
(f). Samuel Ojo.
19. The Plaintiffs aver that the particular portion of land occupied by the defendants belong originally to late Pa Paul Oloniluyi, the father of the 2nd Plaintiff which form part of his own inheritance from Olokoju large family land.”
The above pleadings were to show the Appellants’ root of title based on traditional history. In addition, the Respondents also highlighted paragraphs 6, 24 and 25 of the Appellants statement of claim which read:-
“6. The Plaintiffs and their people have from time immemorial owned and cultivate the entire land in and around the land’ in dispute without any hindrance or disturbance.
24. The plaintiffs aver that their forefathers, Okerenaga migrated from ljesa-Isu many years ago and settled on this piece or parcel of land which was un-inhabited by anybody as at the material time.
25. On arrival at Iluomoba, the plaintiffs ancestors met OBA OBALEBOJUOTUPE, the reigning Ajagun of Iluomoba who ruled over 500 years ago who allocated to the Plaintiffs family large piece or parcel of land, Part of which is the land in dispute.”
With a close look at the pleadings, in paragraphs 6, 16 and 17 of the Statement of Claim, the Appellants averred that their ancestors have been farming and hunting on the land from time immemorial. In paragraph 17 the Appellants merely listed the names of their forefathers who had farmed in and around the land in dispute; similarly in paragraph 18 listed those who are still farming on the land and in paragraph 19 it was averred that the portion now occupied by the Respondents originally belonged to late Pa Paul Oloniluyi, the father of the 2nd Plaintiff, part of his inheritance from Olokolu family land. It is clear from the above averments, that the Appellants did not trace and link their title to those that they say have been and still farming on the land. In their attempt to link the 2nd Appellant to the land in dispute in paragraph 19 it was also not traced from their ancestors and/or original owners to the 2nd Appellant, showing how he got part of the land.
Pa Paul Oloniluyi the father of the and Appellant is said to have derived his title from Olokoju. From who Olokoju derived his title from was not pleaded and evidence led to ascertain that it is the same root as claimed by the Appellants, Olokoju was only listed in paragraph 18(e) as one of those who still farm on the land, while in Paragraph 17(h) Pa Paul Oloniluyi was named as one of their forefathers who had farmed in and around the land in dispute.
In paragraph 24 of the statement of claim, the Appellants averred that their forefathers having migrated from Ijesa-Isu were the first settlers on the land in dispute which was virgin land at the time, uninhabited, while in paragraph 25 the Appellants claimed that Obalebojuotupe who reigned over 500 years ago in Iluomoba Ekiti allocated the land in dispute to them.
On the evidence adduced on how the Appellants got to the land in dispute, PW1 Isaac Olokunlade in his evidence under cross-examination (page 22 of the printed records) testified that Chief Adesuyi was his grandfather from Ijesa-Isu he said:-
“I have heard of the Chief Adesuyi from Ijesa-Isu who was my paternal ground (sic) father.”
While PW3 – Oba George Ibisanmi Olawumi II (Oba of Iluomoba, Ajagun Iluomoba) at 26 of the printed records testified thus:-
“Adesuyi is not the person that brought the Plaintiffs to Iluomoba but Ekenaga Adesuyi was in Iluomoba. The land was given to the Plaintiffs by my progenitor called Ajagundero.”
PW3’s testimony is that Adesuyi is a native of Iluomoba while PW1 in his testimony said Adesuyi was his grandfather from Ijesa-Isu Ekiti. On the part of the pW2 Benjamin Folorunso Oloniluyi (2nd Appellant) gave evidence to the effect that they came from Ijesa-Isu and were given the land by Obalebojuotupe as virgin land at Iluomoba Ekiti he said at page 23 of the printed records:-
“From time immemorial when our forefathers were coming from Ijesa-Isu they met Oba Obalebojuotupe who gave them the land. The land was unoccupied.
It was a virgin land,”
But, under cross-examination the same PW3 said Okerenaga first farmed on the land in dispute and died 400 years ago, page 24 of the records.
In agreement with the argument of the learned Respondents’ counsel, the Appellants needed to plead and lead evidence in support on how the Appellants got to the land in dispute or the root of title, it is also necessary to given the names and history of the Appellants’ ancestors from whom they claim as to disclose continuous claim of devolution. The pleadings in paragraph 24 of the statement of claim fall short of these.
Various acts of ownership exercised by the Appellants on the land needed to be proved by evidence, not by merely listing names and saying what they did on the land.
It is the law that where evidence of tradition is relied on in proof of declaration of title to land the burden is on the plaintiff to plead and prove facts such as:
(a) Who founded the land;
(b) How did he found the land; and
(c) Particulars of the intervening owners through whom he claims.
See ONWUGBUFOR V. OKOYE (1996) 1 NWLR (PART 424) 252, PAGE 280, also ANABORAONYE V. NWAKAIHE (1997) 1 NWLR (PART 482) 374 at 383. In ONWUGBUFOR V. OKOYE (SUPRA) AT PAGE 280, His Lordship Iguh, JSC re-emphasized the position of the law thus:-
“The point has repeatedly been made and it seems to me well settled that it is not sufficient for a party who relies for proof of original title to land on tradition to merely plead that he and his predecessors’ in title had owned and possessed the land in dispute from time immemorial without more. The question of original ownership of land from time immemorial is an issue of hard historical facts. Accordingly materials and necessary facts to sustain a claim musty be clearly averred and proved. And they are not established by sweeping and vague assertions that the land is owned by the plaintiff from time immemorial or from time beyond human memory without further details. Such sweeping assertions clearly leave the traditional evidence at large and in the air and can be fatal to a plaintiff’s case if they are the only root of tile relied on. See ALADE V. LAWRENCE AWO (1975) 4 SC 215 at page 229.”
(Underlining mine for emphasis)
In my considered view, there is no credible evidence that is consistent and cogent enough to establish how the Appellants got to, the land in dispute, In paragraph 24 of the Statement of Claim their forefathers were said to be the first settlers while paragraph 25 the Appellants’ claimed that it was Obalebojuotupe of, Iluomoba Ekiti who ruled for over 500 years that allocated the land to them, in paragraphs 6, 16 and 17 of the statement of claim it was averred that their ancestors had been farming and hunting on the land in dispute from time immemorial. The plaintiffs’ pleadings oh how they got to the land in dispute are conflicting and inconsistent. The discrepancies in the pleadings have made it uncertain how the Appellants came unto the land in dispute.
The PW3 the Ajagun Iluomob whose forefathers was said to have allocated the land in dispute to the
the grantor which contradicts paragraph 25 of the statement, of claim.
Unfortunately, the Appellants considered these discrepancies and inconsistency as little differences in the evidence of their witness. The case of OWIE V. IGHIWI (2005) 5 NWLR (PART 917) P.184 cited and relied upon by the learned Appellants’ counsel is not applicable in this case, it would be applicable where different witnesses testify and there are minor differences, in their testimony not where the same witness evidence is inconsistent. The learned trial judge was therefore right in his observation of these discrepancies at page 78 of the printed, records and the holding that the learned counsel to the Appellants overlooked these discrepancies that made it uncertain how they came unto the land, The learned Appellants’ counsel had urged us to hold that this should not affect the outcome of this case, which with respect, I do not agree with. The Appellants ought to be consistent with the name of their grantor; such evidence as rightly pointed out by the learned trial judge should be consistent with their pleadings, page 80 of the printed records.
In paragraph 25 their grantor was named as Obalebojuotupe. PW3s’ ancestor was named as their grantor but, he PW3, named Ajagun Dero as the grantor, this is contradictory and confusing as to who the grantor is, Paragraph 25 traced the root of title to Obalebojuotupe. This leaves doubt as to who granted the land to the Appellants’ ancestor, Olokoju family.
The learned Appellants’ counsel urged this Court to treat these contradictions and inconsistencies as mere technical slip, with respect the root of title is the basis of the entire claim of the Appellants as plaintiffs and the inconsistencies of tracing the title down to them cannot and should not be treated lightly or with a wave of the hand, I am of the view that it cannot be treated as a technical slip, it changes the very soul of the claim, and I so hold.
The Appellants who are relying on traditional history to prove their title have not proved their claim. The Appellants in this case have not adduced cogent and credible evidence in support of their claim to establish how they came unto the land and proof of various acts of ownership exercised by them on and around the land in dispute. The burden on a plaintiff seeking a declaration of title to land as the Appellants have done, is a heavy one; such a plaintiff must establish to the satisfaction of the court by the evidence brought by him that he is entitled to such a declaration and must rely on the strength of weakness of the case of the defendant whose duty is merely to defend. In the instant case, the Appellants failed to prove their case on the balance of probability. In my humble view, they did not prove their title to the land to which they sought a declaration. See ELIAS V. OMOBARE (1982) 5 SC 25; AKINOLA V. OLUWO (1962) 1 SCNLR 352 and NWAGBUGU V. IBEIAKO (1972) 2 ECSLR (PART 1) 335.
The Respondents as defendants in the trial Court did not counter claim, and did not have to prove ownership, all that is required of them is to defend, see KODILINYE V. MBANEFO ODU (1935 CASE) (2003) 36 WRN 175, 1935 2 WACA 336 at 337, AWUZIE V. NKPARIAMA (2002) 1 NWLR (PART 741) 1 AT 9-10 and OYABANJI V. AKINLEYE (2010) 35 WRN PAGE 146 at PAGE 1609. In the old case of KODILINYE V. ODU (SUPRA) at page 180, His Lordship, Webber C.J., on the need for the plaintiff to satisfy the court that he is entitled to the declaration of title sought as in this case, had this to say:-
“The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant. Such judgment decrees not title to the defendant, he not having sought the declaration”. (Underlining mine for emphasis)
In my considered view, the Appellants did not adduce sufficient evidence to establish their root of title in their pleadings as to claim through traditional history which was not supported by evidence to Warrant the declaration of title sought then and I so hold.
The second issue is whether the Respondents have been shown to be customary tenants to the Appellants? In the pleadings of the Appellants and evidence adduced, there is nothing to show that the Appellants and Respondents entered into any custom any tenancy agreement. In paragraph 10 of the Appellants’ statement of Claim it was averred that the defendants accepted the conditions of the customary tenancy and had complied fully with the terms from past generations. This averment was not supported by evidence, oral or documentary, I did not see any on record; therefore the pleading not supported by evidence as rightly argued by the learned Appellants’ counsel goes to no issue and must be disregarded. See N.I.P.C. V. THOMPSON ORGANISATION & ORS (1969) 1 NMLR 99 (104); AKINFOSILE V. IJOSE (19600 5 FSC 192; (1960) SCNLR 447 and ESEIGBE V. AGHOLOR (1990) 7 NWLR (PART 161) 234 at 248. In the case of AKINGBOYE V. SALISU (1999) 7 NWLR (PART 661) 434 at 453, His Lordship Adamu, J.C.A. in this respect had this to say in a similar situation restated that:-
“It is trite and an elementary rule of pleadings that an averment in the pleadings on which no evidence is led or called in proof is deemed to have been abandoned.”
In the present case there was need to prove customary tenancy for the Appellants to be entitled to their claim in paragraph 27(ii) of their statement of claim, that is, forfeiture of the customary tenancy agreement which their case was predicated upon. The main requirement or ingredient of customary tenancy is the payment of tribute to the overlord which results in the holding in perpetuity, subject to good behavior. They could then be dislodged by a claim of forfeiture for any reason under native customary tenure. See ABUDU LASISI & ANOR V. OLADAPO TUBI & ANOR. (1974) ALL NLR 923 AT 926; (1974) 9 NSCC 613 AT 616, ARE V. IPAYE (1990) 2 NWLR (PART 134) 298 AT 321, AGOMUO V. AGUWA (1992) 1 NWLR (PART 216) 236 AT 250. There was no proof of payment of such tribute apart from the averment in paragraph 10 above, even though in some cases some landlords dispense with, the payment of the tribute which could be cash or in farm produce like, yams, corn etc. the customary tenancy would still exist without any tribute paid as long as the customary tenants recognize that they are on the land, at the mercy of their overlords. See LAWANI V. ADENIYI (1964) 3 NSCC 231, 233 and MAKINDE V. AKINWALE (2000) 1 SC 89 AT 94-95; (2000) 2 NWLR (PART 645) 435 AT 447. In the case at hand, there is no evidence that the Respondents or their predecessors recognized the Appellants as their overlords, there is no proof that they paid any tribute to them, if anything the respondents in their defence claimed that they are owners of the land and have always exercised rights of ownership and gave account of how they got to the land in dispute. See NWOSU V. UCHE (SUPRA) cited by the learned counsel to the Respondents also, BABATUNDE V. AKINBADE (2006) NWLR (PART 975) 44 AT 61 E-H, EJEANALONYE V. OHABUIKE (1974) 4 ECSLR 435; LASISI V. TUBI (1974) 1 ALL NRL 438, and MAKINDE V. AKINWALE (2000) 2 NWLR (PART 645) 435.
It was also argued by the learned counsel to the Appellants that the Respondents breached the conditions precedent to the grant of the customary tenancy and have forfeited the tenancy.
By this argument, there was no grant of customary tenancy to the Respondents, not having met the conditions, reliance was placed on the evidence of PW1, PW2 and PW3 confirming the breach of the conditions precedent to the grant of the land to their fathers. This in my humble view confirms that the Respondents were not customary tenants to the Appellants not having also complied with the conditions precedent to a grant of customary tenancy. This also supports the Respondents assertion and argument that they are not and have never been customary tenants to the appellants, they challenged being customary tenants.
Again, in line with the submissions of the learned Appellants counsel, if the Respondents and their ancestors did not comply with the conditions precedent to a customary tenancy (say by paying tribute as argued) then they cannot be regarded as customary tenants and the Appellants their overlords, if there is no such relationship the Appellants cannot rightly be asking for forfeiture to determine a non-existent customary tenancy. The Respondents are therefore right in, vehemently contending that the Appellants are not their overlord and I so hold.
By the operation of Section 146 of the Evidence Act, the Respondents as defendants are presumed to be the owners of the land in dispute until the contrary is proved to rebut the presumption. The only way to rebut the presumption is by strict proof of the alleged customary tenancy. See BABATUNDE V. AKINBADE (SUPRA) per Tabai, J.C.A. (as he then was) at page 560 – 61. This was also restated by the Apex Court in the case of REPHAEL UDOZE & ORS V. PAUL CHIDEBE & ORS. (1990) 1 NWLR (PART 125) 141 AT 160-161 per Nnaemeka-Agu J.S.C.
I agree with the learned trial judge in his holding at page 88 of the printed record that the Appellants claim for forfeiture was abandoned at the trial not having led evidence to establish the customary tenancy of the respondents. On this issue, I therefore hold that from the totality of the evidence adduced by the parties the Respondents cannot be said to be customary tenants of the Appellants.
As to whether the Appellants are entitled to the damages and the injunctive reliefs sought.
In the present case the Appellants claimed that the Respondents are their customary tenants who defaulted in payment of tribute or rents, the proper claims the Respondents as Plaintiffs should have made are a declaration for title and forfeiture of the customary tenancy as they did. There should not have been a claim for damages for trespass and injunction. If this court had ordered a declaration of title and in resolving the first issue, it would have the same effect, as forfeiture of the tenancy of the Respondents if custom any tenancy is proved and determined for default. But, having held that the Appellants did not prove their title to the land in dispute through customary evidence and there being no claim for trespass the issue of damages does not arise. The proper claim where a default has been proved against an erring customary tenant is forfeiture, where a customary tenancy has been established. Even if the Respondents were proved to be customary tenants, there cannot be a Successful claim for Respondents cannot be customary tenants and trespass time to warrant award of damages and forfeiture, our law does not permit it. It must be one or the other. See also ARMOIRE V. AWOYEMI (1972) 2 SC 1 also OKPALA V. OKPU (1996) 8 NWLR (PART 468) 589. A claim for forfeiture of customary tenancy and for damages in trespass is contradictory in nature; each has its relief where a breach is proved. See ADELEKE V. ADEWUSI (1961) 1 SCNLR 58; EKWRE V. IJIEGBE (1972) 6 S.C. 116; AKINKUOWO V. FAFIMOJU (1965) NWLR 349, PAGE 596, E-G and NWAOKORO V. EGBENAMA V. (1997) 11 NWLR (PART 528) 238 AT 247-248.
Since the Appellants failed to prove title to the land in dispute they are not entitled to the declaration and injunctions sought against the Respondents.
The line of cases cited by the learned Appellants’ counsel in claiming damages, ADENIRAN V. ALAO (SUPRA) and AJAO V. OBELE (SUPRA) are not applicable to the present case. These cases apply where customary tenancy has been established and the overlord has the reversionary interest or right, should the grantee deny the title of the overlord, claims ownership or refuses to pay tribute or tries to alienate the land, then the overlord or owner could claim and is entitled to possession.
This is not the case in the present case. In the same way, the case of ESUROMBI-ARO (2005) (SUPRA) cited and relied upon by the learned counsel to the Appellants in arguing the extent and right of a customary tenant on the land that is he is entitled to possession of the land granted to him but, liable to forfeiture of such right when he denies or challenges the title of his overlord or commits a serious misconduct does not apply.
Forfeiture of the interest of the customary tenant involves not only the family but the descendants. The above case would apply where customary tenancy has either been admitted or established which the Appellants have failed to do.
In my considered view, the Appellants are not entitled to, damages and the injunctions sought and I so hold.
On the issue of N10, 000.00 costs being excessive, in agreement with the argument of the Respondents, except where a statute or rules of Court provide the amount to be awarded in costs, costs awarded in court proceedings are at the discretion of the courts. A successful party in a civil claim is as of right entitled to costs unless there are circumstances warranting the contrary, if for nothing else, to compensate successful party for the expenses incurred in course of the proceedings. See LADEGA V. AKINLOYE (1975) 2 SC 91; AMAONWU V. AHAETU (1988) 9 NWLR (PART 566) 453 and MAYA V. OSUNTOKUN (SUPRA).
The issue of costs is entirely at the discretion of the court and an Appellate court will not interfere with its award unless it can be shown that the trial judge did not exercise his discretion judicially and judiciously. See MAYA V. OSHUNTOKUN (SUPRA), in this case, the Appellants have not shown that this was the case in awarding the costs by the trial court. They merely complained that it was excessive. See AKINSANYA V. SOYEMI (1998) NWLR (PART 560) 49. In awarding costs, the court considers the circumstances surrounding the particular case that is the out of pocket expertise of the successful party, the duration of the case, the number of appearances by parties and their counsel. The complaint is also that the Respondents as defendants did not ask for costs and that the Appellants as plaintiffs were not called upon to address the court on costs; these are not requirements before costs could be awarded by the trial court. The case ISHAKU V. AINA (2004) 11 NWLR PART 883 PAGE 146 AT 177 of cited and relied upon by the learned Appellants’ counsel is not helpful because the Appellants have not shown that the award of costs in this case was unmerited, excessive and perverse which would necessitate this court as an appellate court to wade in and interfere as decided in the above case. The Appellants in my humble view failed to prove that the learned trial judge did not exercise his discretion judiciously and judicially in the award of costs of N10, 000.00.
Contrary to the submissions of the learned Appellants’ counsel that the Respondents did not ask for costs awarded from the printed records, page 54, at the conclusion of the defendants’ counsel’s address reads:
“5.00 CONCLUSION: This Honourable Court is prayed to dismiss the Plaintiffs’ claim in it’s entirely with substantive costs. (underlining mine).
The above paragraph sums it all up, learned counsel to the Respondents did ask for substantive costs.
Further, the learned Appellants’ counsel’s submission that this court by law cannot award more than N10, 000.00 (talk less the trial court) is erroneous. This court by our rules is empowered to award costs and does award costs for higher than N10, 000.00.
This issue is also resolved against the appellants.
In the prevailing circumstances, the appeal fails and is hereby dismissed. The judgment of the High Court of Ekiti State sitting at Omuo Ekiti in Suit No. HOM/9/2005 delivered on the 4th day of June, 2008 by D.O. Jegede, J. is hereby affirmed.
Costs of N30, 000.00 (Thirty thousand Naira) is awarded against the Appellants.
HARUNA MOH’D TSAMMANI, J.C.A: I was privileged to read in d the lead judgment just by my learned brother C.N. Uwa JCA. My learned exhaustively and eruditely summed up the facts and analyzed the issues hat arose in this appeal. Accordingly, I agree with his reasoning and conclusion thereon. I have nothing else useful to add.
In that event, I too agree that the appeal has no merit. It fails and is dismissed by me. The judgment of the lower court is hereby affirmed.
I abide by the order as to cost.
UWANI MUSA ABBA AJI, J.C.A: It was p read in draft the lead judgment of my learned brother C. N. Uwa, J.C.A. just delivered.
I agree with the reasoning and conclusions of my learned brother that the appeal lacks merit and should be dismissed. The Appellant (Plaintiff) at the trial failed to prove his entitlement to the ownership of the land in dispute by traditional history and the fact that the Respondents are their customary tenants. The lower court was right to have dismissed the Appellant’s claim.
The appeal fails and it is also dismissed by me. I abide by the consequential order as to costs.
Appearances
Owoseni Ajayi Esq,For Appellant
AND
Emmanuel Bamidele Omotoso Esq,For Respondent
