CHIEF JOSEPH ADEDAPO ALIBALOYE v. MR ABAYOMI AKOGUN & ORS (2015)

CHIEF JOSEPH ADEDAPO ALIBALOYE v. MR ABAYOMI AKOGUN & ORS

(2015)LCN/7964(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of July, 2015

CA/EK/46/2014

RATIO

LAND LAW: TITLE TO LAND; WHETHER AN UNREGISTERED INSTRUMENT IS LEGALLY INADMISSIBLE DOCUMENT IN ANY COURT FOR PURPOSES OF TRANSFERRING TITLE TO LAND

EVIDENCE: BURDEN OR ONUS OF PROOF; WHICH OF THE PARTIES HAS THE O NUS OF PROOF IN ACTION FOR DECLARATION OF TITLE AND WHETHER THE PLAINTIFF MUST RELY ON THE STRENGTH OF HIS OWN CASE AND NOT ON THE WEAKNESS OF THE CASE OF THE DEFENDANT TO PROVE TITLE TO LAND

The law has been well settled since the Judgment of Webber C. J. in KODILINYE Vs ODU (1935) 2 WACA 336, and subsequent decisions have followed this principle that the onus on the plaintiff in action for declaration of title is to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. And for this purpose he must rely on the strength of his own case and not on the weakness of the case of Defendant except where the evidence adduced by the defendant strongly supports his case. The onus is on the party claiming title to land to establish the claim. See CHUKU Vs WUCHE (1976) 9-10 SC 173; IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 and DUMEZ NIG LIMITED Vs PETER NWAKOBA & ORS (2009) ALL FWLR (PT.461) 842. per. ADZIRA GANA MSHELIA, J.C.A.

LAND LAW: TITLE TO LAND; THE WAYS A PLAINTIFF CAN SUCCEED IN PROVING HIS OWNERSHIP OF THE LAND OR TITLE THEREIN

It had equally been stated in a plethora of cases that for a plaintiff to succeed in such a case, he could prove his ownership of the land or title therein through any of the five different ways long entrenched by the Supreme Court for proving the same, that is to say:-
(1) By traditional evidence.
(2) By production of documents of title duly authenticated in the sense that their due execution must be proved unless they are documents twenty or more years old produced from proper custody.
(3) By positive acts of ownership such as (Selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough to warrant the inference that the person is the true owner;
(4) By acts of long possession and enjoyment of land;
(5) By proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected adjacent land would in addition be the owner of the land in dispute.
See: IDUNDUN Vs OKUMAGBA (1976) 9-10 SC 227, ALLI Vs ALESINLOYE (2000) FWLR (PT.15) 2610 at 2632 Paras B-D and QUEEN Vs UCHE (1994) 6 NWLR (PT.358) 529 at 550 Paras G-H. per. ADZIRA GANA MSHELIA, J.C.A.

EVIDENCE:PROOF OF TRADITIONAL HISTORY; WHAT A PARTY RELYING ON TRADITIONAL HISTORY IN PROOF OF HIS CLAIM OF TITLE TO LAND MUST PLEAD AND PROVE

A party relying on traditional history in proof of his claim of title to land must plead and prove the founder(s) of the disputed land, how he or they founded it and the particulars and names of intervening owners through whom he claims. See OKEGBEMI Vs AKINTOLA (2008) 4 NWLR (PT. 1076) 53 @ 68. per. ADZIRA GANA MSHELIA, J.C.A.

EVIDENCE: PROOF OF TRADITIONAL HISTORY; WHETHER AN INCONCLUSIVE AND DEFICIENT EVIDENCE OF TRADITIONAL HISTORY CAN SUSTAIN A CLAIM FOR OWNERSHIP AND WHETHER THE TRIAL JUDGE IS ENTITLED TO REJECT EVIDENCE OF TRADITIONAL HISTORY WHICH IS INCREDIBLE

It is settled that an inconclusive and deficient evidence of traditional history cannot be plausible and credible and definitely cannot sustain a claim for ownership of land. See ALI V SALOHU (2011) 1 NWLR (PT. 1228) 227, JIYA V AWUMI (2011) 4 NWLR (PT. 1238) 467. The law is trite that a trial Judge is entitled to reject evidence of traditional history which is incredible. See TAIWO & ORS V OGUNDELE & ORS. per. ADZIRA GANA MSHELIA, J.C.A.

EVIDENCE: PROOF OF TRADITIONAL HISTORY; WHAT THE PLAINTIFF MUST PLEAD AND PROVE TO ESTABLISH TRADITIONAL EVIDENCE OF TITLE

The case of ELEGUSHI V OSENI (2005) ALL FWLR (PT. 282) 1837 is very relevant regarding traditional history/evidence and inheritance and customary grant. The Supreme Court at page 1852 per Onu, JSC had this to say:-
“This is because proof of ownership of land by traditional history is usually based on hearsay evidence, that is oral evidence often extending beyond human memory and time of the witnesses narrating the history, which narration was handed down from generation to generation up to the present one…….To establish traditional evidence of title by conclusive evidence, the plaintiff must plead and prove such facts as:-
(a) Who founded the land in dispute
(b) How they founded the land, and
(c) The particulars of the intervening owners through whom they claim.
See the cases of NKADO V OBIANO (1997) 1 NWLR (PT. 482) 374 SC, OHIAERI V AKABEZE (1992) 2 NWLR (PT.221) 1 ANYAWUN V MBARA (1992) 5 NWLR (PT. 242) 386, PLARO V TENALO (1976) 12 SC 32 and MOGAJI V CADBURY (Supra).” per. ADZIRA GANA MSHELIA, J.C.A.

EVIDENCE: PROOF OF TRADITIONAL HISTORY; HOW THE COURT DETERMINES THE TRUTH OF COMPETING HISTORIES REGARDING THE ACQUISITION OF A PIECE OF LAND THROUGH TRADITIONAL HISTORY

A trial Judge faced with competing histories regarding the acquisition of a piece of land, through traditional history, has to determine the truth of the histories on the basis of probability that either of them could be true. In IREJU NWOKIDU & 3 ORS Vs MARK OKAMI (2010) 1 SCNJ 167 at page 196, (2010) 3 NWLR (PT. 1181) 362 @ 398 Paras A-C the Supreme Court gave guide thus:-
“In the scenario before the court, where the case is fought on evidence of traditional history which in other words hearsay upon hearsay which is the nature of traditional evidence, the trial court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history, relied upon, the trial court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied upon by the other side, the trial court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.” per. ADZIRA GANA MSHELIA, J.C.A.

TORT: TORT OF TRESPASS; WHAT A PLAINTIFF MUST PROVE IN A CLAIM FOR TRESPASS

The law is well grounded that in a claim for trespass, the plaintiffs must prove exclusive possession, of the land in dispute otherwise their claim fails. See SILAS OKOYE & ORS v CHIEF KPAJIE & ORS (1973) 1 NWLR 84. per. ADZIRA GANA MSHELIA, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

CHIEF JOSEPH ADEDAPO ALIBALOYE Appellant(s)

AND

1. MR. ABAYOMI AKOGUN
2. AJAYI OLAREWAJU
3. SHOLA EGBODOFO
4. AKINDELE BABATUNDE Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): The appellant herein, as plaintiff, commenced Suit No. HAD/27/2013 by filing a Writ of Summons in the High Court of Ekiti State sitting at Ado-Ekiti, against the respondents claiming for:-
a. A declaration that the claimant is the bonafide owner of the parcel of land situate at Idiroko farmland, opposite Atlas Motel, Ikere Road, Ado-Ekiti described in Plan No. DES/OD/95/06.
b. Perpetual injunction restraining the defendant, their agents, privies or representatives from further acts of trespass.
c. An order declaring null and void all sales lease or other transactions entered into, in respect of the land, by the Defendants.
d. N5,000,000 (Five Million Naira) general damages for trespass on that parcel of land situate at the Idiroko farm, along Ikere Road, Ado-Ekiti.

The brief facts of the case are as follows:- According to the claimant, he purchased the land in dispute from Alhaji Tijani Ajijola in 1995 while Alhaji Ajijola in turn purchased the said land from the Aro Osakuajo family in 1976. Alhaji Tijani Ajijola was in exclusive possession of the land between 1976 to 1995. During this period, his company used the land for mechanized farming and in order to secure a certificate of occupancy on the land for the use of the company, the Aro family again deposed to an affidavit to the effect that the land had been granted to Jolatrade Nig. Ltd. At all times material to the sale of the land by Aro Osakuajo to Alhaji Ajijola and the subsequent use of the land by him and the company floated by him, until the time the land was sold to the claimant in 1995, Oniloda Olaleye who was the head of the Oniloda family was alive and never challenged the sale.

The Claimant took possession, sold part of the land and Petrol Station, Church, Fence were erected thereon, all these were done several years ago without let or hindrance, or any challenge from the then Oniloda. It was after the demise of Oniloda Olaleye in 2011, that the defendants began to trespass onto the land and secretly selling same.

Defendants on the other hand, expressly denied that the land in dispute belonged to Aro Osakuajo family. According to them the land in dispute belonged to their family and they gave evidence of traditional history, acts of long possession and acts of ownership. The Aro of Ado Ekiti who is the traditional Chief of Aro family gave evidence acknowledging the Oniloda family as owner of the land in dispute. Similarly, a principal member of the said family gave evidence. Both sides filed and exchanged pleadings including a Statement of Claim and Amended Reply to the Statement of Defence of the respondents. The respondents’ pleadings consist of the Statement of Defence. The appellant elicited evidence in support of his case through four witnesses and exhibits. The respondents led evidence in defence through five witnesses. After close of evidence by both parties and following the address of their respective counsel, the trial court rendered Judgment, holding that the appellant failed to discharge the burden of proof placed on him and dismissed the appellant’s case.

Dissatisfied with this Judgment, the appellant on the 29th day of April, 2014 commenced this appeal No: CA/EK/46/2014 by filing a Notice of Appeal on 5th day of May, 2014 containing five grounds of appeal.

In accordance with the practice of this court, both parties herein filed, exchanged and adopted their respective briefs of argument, which are: the appellant’s brief of argument, the respondents’ and the appellant’s reply brief.

The appellant’s brief of argument raised the following issues for determination:-
1. Whether Exhibits 1, 7, 8, 9 and 10 were rightly and correctly expunged from the records without considering the effect were they retained and not expunged. Ground 1
2. Whether from the state of the pleadings the available evidence on record and the law, the learned trial Judge was justified in dismissing the claim of the appellant. Grounds 3, 5, 7, 8 and 9.
3. Whether a court can approbate and reprobate on the same issue placed before it and or speculate thereon. Grounds 2 and 4.
4. Whether the failure to call the names of person on Exhibits 3, 4, and 5 and other witnesses weakened the case of the appellant and the exhibits tendered by him.

The respondents’ brief of argument raised the following issues for determination:-
(i) Whether the trial court was right to have expunged from the record Exhibits 1, 7, 8, 9 and 10 which were found to be legally inadmissible.
(ii) Whether the appellant proved his claims before the trial court as required by law to entitle him to Judgment.

Issue 1 is whether the trial court was right to have expunged from the record Exhibits 1, 7, 8, 9, and 10 which were found to be inadmissible. Exhibit 1 is the sales of land agreement between the appellant and Jola Trade Nig. Ltd. Exhibit 7 is the photograph of Top Filling Station. Exhibit 8 is the photograph of a Church. Exhibit 9 is the photograph of fence, while Exhibit 10 is the photograph showing part of the demolished fence. According to learned counsel for the appellant, Exhibit 1 was not tendered as a title document but to show and confirm that the land in dispute was truly, authentically and genuinely purchased from the Vendor by the appellant. The appellant pleaded in paragraph 9 of his Statement of Claim dated 16th April, 2013 and filed on same day as follows:-
“Alhaji Tijani Ade Ajijola on 13th day of January, 1995 sold the said land to the claimant for the sum of N750,000.00. The sale agreement and the purchase receipt are hereby pleaded”.

Paragraph 9 of the Appellant’s written deposition on oath made on 26th April, 2013 and adopted on 3rd February, 2014 bears a similar averment. The contention of learned counsel is that Exhibit 1 is admissible because it showed that the land was purchased by the appellant from the Vendor Alhaji Tijani Ade Ajijola of Jolatrade Nig. Ltd. Reference was made to ERO Vs TINUBU (2012) 8 NWLR (PT. 1301) P. 104 AT 125 PARAS B-F and AGBOOLA Vs UBA PLC (2011) 11 NWLR (PT 1258) 375 @ 406. See also HAMIDU Vs SAHAR VENTURES LTD (2004) 7 NWLR (PT 873) 618 AT 649 PARAS A-D.

For the respondent, by virtue of Section 2 of the Lands Instrument Registration Law of Ekiti State, Exhibit 1 is a registrable instrument. Section 16 of the said Law further states that no instrument shall be pleaded or given in evidence in any court affecting land unless the same shall have been registered in the proper office. According to counsel, Exhibit 1 was not registered as required by Section 16 of the Land Instrument Registration Law and therefore legally inadmissible. That the trial court was therefore right when it expunged Exhibit I from the record. Reliance was placed on UBA PLC & ORS V. MRS. OLADAHUN AYINDE (2000) 7 NWLR (PT.663) 83 @ 1001.

As regards Exhibits 7, 8, 9 and 10, he submitted that they were pictures of a petrol filling station, a Church, a fence and a demolished part of the fence respectively. The pictures were tendered without objection but a close look at same showed that they were copies of a common original and were therefore secondary evidence. According to counsel, the negatives of the pictures which were primary evidence were not tendered and the reason for the failure to tender the negatives was not given by the appellant. That the pictures were not digital photographs as argued by the learned counsel for the appellant. That the tendering of the pictures and admission of same by the trial court ran foul of Section 86(4) of the Evidence Act, 2011. That where a trial court inadvertently admitted an admissible evidence as in the instant case, the court is under a duty not to act on it. That the trial court was right by expunging Exhibits 1, 7, 8, 9 and 10 from the record. Reliance was placed on WAHABI ALAO LAWAL V. THE STATE (1966) ALL NLR 107; AJAYI V. FISHER (1956) 1 NSCC 82 @ 84. Learned counsel submitted that no miscarriage of justice has been occasioned by the expunction of the documents by the trial court. That assuming but without conceding, that the trial court was wrong to have expunged the said exhibits, he contended that those exhibits, if admitted would have done more damage to the case of the appellant. Counsel urged the court to resolve the issue in favour of the respondents on the ground that Exhibits 7, 8, 9 and 10 were improperly admitted by court and legally expunged from the record by the trial court.

Exhibit ‘1’ is a sale agreement. Being an instrument by virtue of Section 2 of the Land Instruments Registration Law, CAP 13 Laws of Ekiti State, same ought to be registered in accordance with Section 16 of the Land Instrument Registration Law of Ekiti State. Section 16 provides thus:
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3.”

It has been held in plethora of cases decided by the apex court that an unregistered instrument is legally inadmissible document in any court for purposes of transferring title to land. However, a registrable instrument which has not been so registered is still admissible to prove equitable interest and to prove payment of purchase price or rent. See OKOYE V. DUMEZ NIGERIA LTD. (1985) 1 NWLR (PT.4) 783; REGISTERED TRUSTEES OF APOSTOLIC FAITH MISSION V. JAMES (1987) 3 NWLR (PT.61) 556 and HAMIDU V. SAHA VENTURES (2004) 7 NWLR (PT.873) 618 and AGBOOLA V. N.B.A PLC (2011) NWLR (PT.1258) 376. In OKOYE V. DUMEZ (SUPRA) the apex court at page 790 held thus: “A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent. In the instant case, the position taken by the appellant as stated in his brief of argument is that Exhibit 1 was not tendered as a title document because same is not registered but to show and confirm that the land in dispute was genuinely purchased from the vendor by the appellant. The appellant pleaded in his paragraph 9 of his Statement of Claim dated 16th April, 2013 and filed on the same day as follows:
“Alhaji Tijani Ade Ajijola on 13th January, 1995 sold the said land to the claimant for the sum of N750,000:00. The sale agreement and the purchase receipt are hereby pleaded.”

Exhibit 1 (the sales agreement) being a registrable instrument cannot be tendered in evidence as a title document. But as earlier stated, it can be admitted in evidence to show that the land was purchased by the appellant from the vendor, Alhaji Tijani Ade Ajijola of Jolatrade Nig. Ltd. CW1 in his witness statement on oath stated that Alhaji Tijani Ade Ajijola in 1995 sold the said land to him for the sum of N750,000:00. The sale agreement and purchase receipt were tendered in evidence through him. CW3 confirmed that he was physically present when the purchase price was paid. It is to be noted that the said purchase receipt can only confer equitable interest of the land and not legal title. I agree with the submission of learned counsel for the appellant that the learned trial Judge wrongly expunged Exhibit 1 from the record. I hold that Exhibit 1 is admissible as evidence to prove monetary transaction between the appellant and the vendor. Exhibit ‘1’ should therefore be restored as Exhibit 1.

From the available evidence, Exhibits 7, 8, 9 and 10 are photographs of a petrol filling station, a church, a fence and a demolished part of the fence respectively. As rightly observed by respondents’ counsel, the pictures were copies of a common original and are therefore secondary evidence. The negatives which are primary evidence were not tendered and the reason for the failure to tender the negatives was not given by the appellant. No proper foundation has been laid down for the said photographs to be admitted in evidence as Exhibits. The admission of the pictures ran foul of Section 86(4) of the Evidence Act 2011. The documents were legally inadmissible but wrongly admitted by the trial Judge. The power of a trial Judge to reject the evidence at the Judgment stage is limited to inadmissible evidence. It does not extend to legally admissible evidence on facts pleaded, for a party being bound by his own pleadings. See: IGBODIN & ORS V. OBIANKE & ORS (1976) 1 NMLR 212 @ 219. Notwithstanding the fact that the pictures were admitted without objection, since same were legally inadmissible, the learned trial Judge rightly expunged them from the record at the judgment stage. The argument of learned counsel for the appellant that the order made by the learned trial Judge initially admitting the document is a final order and not subject to review cannot hold water. Following the decision of the Supreme Court in IGBODIN & ORS V OBIANKE & ORS (SUPRA) and BUHARI V INEC (2008) 18 NWLR (PT.1120) 386 PARAS C-F, the learned trial Judge was not functus officio at the time he revisited the admissibility or otherwise of the documents he earlier admitted without objection. The case of OMOJU V. F.R.N (2008) 8 NWLR (PT.1085) 38 @ 63 D-E and ANPP VS HARUNA (2003) 14 NWLR (PT.841) 546 @ 564 B-C are inapplicable.

For the reasons stated hereinabove, Issue 1 would partly be resolved in favour of the appellant.

For convenience, I will treat issues 2-4 together. The contention of the appellant under issue 2 is that despite the fact that he proved his case, the learned trial Judge irregularly dismissed same. Learned counsel referred to the case of GWOR Vs ADOLE (2003) 3 NWLR (PT. 808) 516 AT 546 PARAS C-F wherein the court enumerated the five established ways of proving title. That of these five ways of proving title to land, none is superior to the other and where traditional evidence fails, a party can fall back to any of the other four ways. Reliance placed on OWHONDA Vs EKPECHI (2003) 17 NWLR (PT.849) 326 AT 354 PARAS A-B and MKPINANG Vs NDEM (2013) 4 NWLR (PT. 1344) 302 AT 312-313 PARAS H-C. Counsel referred to paragraphs 5-27 of appellant’s Statement of Claim dated 16th April, 2013 and filed same day, paragraphs 4-28 of the written deposition on oath of the appellant made on 16th April, 2013 and adopted and his evidence on 3rd February, 2014 as well as paragraphs 6-28 and 31 of the amended further witness statement on oath of the appellant made on 22nd November, 2013 and adopted on 3rd February, 2014. The said paragraphs are impari materia with paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 18, 19, 21, 22, 23, 24, 25, 26 and 29 of the amended reply to defendant’s Statement of Defence dated 31st January, 2014 and filed same day. According to counsel, the paragraphs referred to disclosed that the appellant purchased the land in the year 1995 and had been in possession since. While Alhaji Ajijola of Jolatrade Nig. Ltd who purchased the same land from the Aro Osakuajo family was in possession for about 18 years and practiced mechanized farming thereon without any challenge and that altogether, the Appellant and his Vendor were continuously on the land without interference or disturbance or challenge for almost 35 years. Counsel also referred to Exhibit 5 and a document more than 20 years and contended that facts contained in documents made 20 years old or more are presumed to be true statement or sufficient evidence of such facts. See: Section 62 of the Evidence Act, S. 168(1) Evidence Act and AUTA Vs OLANIYI (2004) 4 NWLR (PT 863) 394 AT 421-422 E-A. According to counsel, the evidence of the Appellant and his witnesses were not challenged during cross-examination which is tantamount to admission in law. See OGBONNA Vs OGBUYI (2014) 6 NWLR (PT. 1403) 205 @ 235 A-F. It was contended that by virtue of the unchallenged evidence of the Appellant in paragraphs 5, 6 and 9 of his deposition filed on 16th April, 2013, it is undisputed that the original owner of the land is the Aro Osakuwajo family. That the learned trial Judge ought to have treated the evidence of the Appellant as a conclusive proof of his title to the land in dispute without more or Appellants’ acts of possession as an alternative. Reliance was placed on MORENIKE Vs ADEGBOSUN (2003) 8 NWLR (PT.823) 612 AT 661 C, 662-663 A-D. That Appellant clearly traced his root of title to Osakuwajo family the original owner. Counsel referred to the testimony of DW1 and DW2 appearing at pages 120-121 of the record and submitted that their testimonies are admissions against interest of the respondents which the Appellant can profit from. That there is no basis for the holding of the learned trial Judge on pages 180-181 of the record wherein he said:
“In my view, the two facts to be established by the claimant to succeed in this case are (i) the ownership of the land in dispute by the Aro Osakuajo family and (ii) that the Aro Osakuajo family validly transferred the land to Alhaji Ajijola who in term validly transferred it to the claimant. He had failed to do this”.

According to counsel, appellant met the two requirements postulated by the learned trial Judge hereinabove via paragraphs 5, 6 and 9 of the appellant’s written statement on oath of 16th April, 2013 and Exhibit 5 respectively. That the holding of the Court on page 177 of the record that “I can only conclude that there was no evidence as to how the Aro Osakwajo family acquired title to the land in dispute” is inconsequential and perverse since the Osakuajo family is the original owner of the land in the first place.

Learned counsel further submitted that even if the Appellant fails in his declaration for title to the land in dispute, it does not follow that he will also fail in his relief for injunction, damages and others once possession to the land has been established since a party in possession can sue for injunctive relief against a trespasser. See OWHONDA Vs EKPECHI (Supra) 345 Paras C-G and BANKOLE Vs DADA (2003) 11 NWLR (Pt.830) 174 at 228-229 G-A. According to counsel, Appellant was in continuous possession of the said land without challenge. That it is equally an admission of interest. See OVISAODU Vs ELEWUJU (Supra). Counsel also contended that the alleged discrepancies in Appellant’s case are minor, normal and insignificant. That minor discrepancies in the case of a party in land matters are permissible since the evidence of a party in land matter without any iota of contradiction will be treated as suspect. Reliance placed on GBADAMOSI Vs TOLANI (2011) 6 NWLR (Pt.1240) 352 at 369 G-H. That there was no basis for disbelieving the evidence of the Appellant since he never said he did not purchase the land from his vendor nor survey same. Reference was made to the holding of the learned trial Judge at page 172 of the record. He urged the Court to allow the appeal since the survey plan is in the name of Appellant.

As regards issue 3, learned counsel contended that the law does not permit a court to approbate, reprobate or speculate. Learned counsel referred to the holdings of the learned trial Judge on pages 176-177 of the record which according to him appeared contradictory and speculative in that having found that the Appellant gave detailed traditional history of the land in dispute, vis a vis the pleadings, there is therefore no basis for disbelieving the same traditional history. That it is inconsistent as Court’s judgment is normally consistent and failure is fatal. That appellant has not given evidence outside the provisions of Section 35 of the Evidence Act. It was also submitted that Section 66 of the Evidence Act does not exclude a none member of a particular family from giving traditional history of a land in dispute. That it is speculative and legally contradictory of a Court to hold that only members of a particular family could give the traditional history of a land in dispute when oral evidence of such land is equally permissible and admissible. That it is not the requirement of the law that a witness must give details of how such oral evidence was handed over to him. A Court is not allowed to speculate on matters before it. See OGBENNA Vs OGBUJI (2014) 6 NWLR (Pt.1403) 205 AT 227 B-C.

Arguing issue 4, learned counsel contented that it is not the number of witnesses called that strengthens a case but the quality of the witnesses called. See Section 200 OF THE EVIDENCE ACT 2011 AND OKOCHI VS ANIMKWOI (2003) 18 NWLR (PT.851) 1 AT 27 E-G. That oral evidence cannot alter, change or obliterate the content of a document. That even if the names of those in Exhibits 3, 4 and 5 were called as witnesses, their oral evidence cannot alter or change the contents of Exhibits 3, 4 and 5 and the none calling of those names could not have weakened the evidence of the Appellant. Reliance placed on B. MANTAG (NIG.) LTD. VS MS OL LTD (2007) 14 NWLR (PT.1053) 109 AT 134-138 E-C. That Exhibits 4 and 5 are official documents and are presumed regular as such it is virtually needless to call other witnesses to establish their contents since the documents speak for themselves. See N.D.I.C V. AKAHALL & SONS CO. LTD (2004) 8 NWLR (PT.869) 245 AT 275 E-G. He urged the court to allow the appeal, on this ground.

The respondents responded under issue 2 raised by them in their brief of argument. The respondents’ answer to issue 2 is in the negative. That appellant failed to prove his claims before the trial Court as required by law to entitle him to judgment. Learned counsel submitted that in action for declaratory reliefs, as in the instant case, the onus is on the plaintiffs to satisfy the Court that they are entitled on the evidence adduced by them before the Court to a declaration of title in their favour. That they must rely on the strength of their own case and not on the weakness of the case for the defendants. See EFETIROROJE VS OKPALELE ll (1991) 5 NWLR (PT.193) 521. According to counsel, it is also a fundamental rule of law that any person who claims interest in land must trace it to the radical title of the owner of the land and any failure renders the grant to refusal of the declaration sought. Reliance placed on MOGAJI V CADBURY (NIG) LTD (1985) 2 NWLR (PT.7) 393. That where the title of the grantor is in issue, production of documents of title without more is not sufficient proof of title to land since in such situation it is the duty of the claimant to go further not only to plead and trace the root of title of the grantor or vendor, but prove same on the balance of probability. Where the claimant fails to discharge this onus, his claim must fail. It is trite law that once a party pleads and traces his root of title in an action involving title to land to particular person or source and his averment as in the instant case is disputed or challenged, that party to succeed in the suit as a claimant must not only establish his own title to such land, he must also satisfy the Court on the validity of the title of that particular person or source from whom he claimed to have derived his title. See OLUKOYA V ASHIRU (2006) 3 WRN 115. Learned counsel referred to paragraph 5 of the appellants statement of claim and paragraphs 4, 5, 6, 7 and 8 of the Respondents statement of defence and contended that appellant failed to plead and trace the root of title of his grantor, the Aro Osakuajo family. That appellant also failed to plead how Osakuajo family came about the land in dispute. Counsel referred to the finding of the learned trial Judge on pages 177, 175-176 and 177 of the record as well the case of THE REGISTERED TRUSTEES VS NKUME (2002) 1 NWLR (PT.749) 726 @ PAGE 738 PARAS B-E. That the evidence on traditional history adduced by DW3 was not challenged by the appellant under cross-examination. That appellant who traced his root of title to the Aro Osakuajo family of Ado-Ekiti failed to call any member of the said family to give evidence in support of his case. That DW1 and DW2 were members of the Aro Osakuajo family. Learned counsel further submitted that DW1 who gave evidence as traditional Chief of the Aro family of Ado-Ekiti and custodian of Aro family land particularly the one along Ado Ikere Road, Ado-Ekiti denied knowing Ajayi Suberu and Ogunleye Osakuajo the persons who purportedly sold the land in dispute to Jolatrade Nig. Ltd. Counsel contended that apart from the fact that the appellant’s pleadings are full of material contradictions the evidence of the appellant, his witnesses and documentary evidence contradicted themselves on who bought the land from Aro family, the size of the land bought and when it was actually bought. That the trial Court was right to have come to the conclusion on pages 180-181 of the record. That the trial Court unquestionably evaluated the evidence and appraised the facts of this case and so he urged the Court not to disturb the findings of the trial court. Reliance was placed on MAYA VS OSHUNTOKUN (2001) 11 NWLR (PT. 723) 620-78 PARAS D-E.

It is important for my determination of this appeal to bear in mind that the action which claimant brought before the court of trial is an action for declaration of title, trespass and injunction. The law has been well settled since the Judgment of Webber C. J. in KODILINYE Vs ODU (1935) 2 WACA 336, and subsequent decisions have followed this principle that the onus on the plaintiff in action for declaration of title is to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. And for this purpose he must rely on the strength of his own case and not on the weakness of the case of Defendant except where the evidence adduced by the defendant strongly supports his case. The onus is on the party claiming title to land to establish the claim. See CHUKU Vs WUCHE (1976) 9-10 SC 173; IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 and DUMEZ NIG LIMITED Vs PETER NWAKOBA & ORS (2009) ALL FWLR (PT.461) 842.

From the totality of the pleadings of both parties, there is no dispute as to the fact that both parties joined issues as to the original ownership of the land in dispute. In paragraph 5 of the Statement of Claim, the claimant averred thus:
“The Aro Osakuwajo family was the original owner of the land described as Aro Osakuajo farm land, Idiroko situate along Ikere Road, Ado-Ekiti.”

The defendants denied same in paragraphs 2, 4, 5, 6, 7 and 8 of the Statement of Defence. Paragraphs 2, 4, 5, 6, 7, and 8 read thus:-
“2 The land in dispute belongs to the Oniloda Oke Ewi family of Irona Quartes, Ado-Ekiti.
4. Defendants’ family has a large expanse of land popularly known as Igidu farmland or Idiroko farmland or Igbodudu farm situate, lying and being along Ikere Road, Ado-Ekiti.
5. The land in dispute forms part of the Igbodudu farmland, property of the defendants.
6. Defendants aver that Awajin Road forms part of Igidu farmland.
7. In olden days people used to excavate sands from a section of the Igidu farmland and after sometime people started calling that section Awajin meaning “deep excavation”.
8. It is preposterous for the claimant to say that the land in dispute originally belongs to Aro Osakuajo family.”

The defendants in paragraph 2 of their Statement of Defence averred that the land belonged to Oniloda family, the family which the defendants belong. It was therefore not in doubt that the claimant traced his title to Alhaji Ajijola who in turn traced his own title to the Aro Osakuajo family of Ado-Ekiti. It is trite law that once a party pleads and traces his root of title in an action involving title to land to particular person or source and this averment as in the instant case is disputed or challenged, that party to succeed in the suit as a claimant must not only establish his own title to such land, he must also satisfy the court on the validity of the title of that particular person or source from whom he claimed to have derived his title. See OLUKOYA Vs ASHIRU (2006) 30 WRN 115 and OWHONDA Vs EKEPECHI (2003) 17 NWLR (PT. 849) 326 at 348 Paras H-G and 349 Paras C-D.

It is clear from the above settled principles that claimant must prove the title of his grantor. Since issues had been joined as to the original ownership of the land in dispute, for claimant to succeed in his claim, he had to establish the title of the Aro Osakuajo family to the land in dispute. The method of proof of title relied on by the claimant were the production of title document for the purchase of the land, acts of long possession and enjoyment, as well as by act of selling, leasing, renting out of the part of the land. It is settled that where the title of the grantor is in issue, production of documents of title without more is not sufficient proof of title to land since in such a situation, it is the duty of the claimant to go further not only to plead and trace the root of title of the grantor or vendor but prove same on the balance of probability. Where the claimant fails to discharge the onus his claim must fail.

Now the question is how did the Aro Osakuajo family acquire the land in dispute? The relevant facts are contained in paragraphs 5-27 of the Statement of Claim as well as paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 18, 19, 21, 22, 23, 24, 26 and 29 of the Amended Reply to defendant’s Statement of Defence dated 31st January, 2014. I consider it expedient to quote in extenso what the learned trial Judge said at pages 175-178 of the record concerning the issue as to whether claimant succeeded in pleading and leading evidence as to the root of title of the Aro Osakuajo family. This is what the learned trial Judge said:-
“Had the claimant succeeded in pleading and leading evidence as to the root of title of the Aro Osakuajo family in any of the five methods as enumerated in IDUNDUN Vs OKUMAGBA (1976) 9 & 10 SC 227. In paragraph 13-17 of the amended reply to the statement of defence, it was averred and evidence was led to that effect by the CW1 that the Aro and Oniloda families were not one family in that the defendants were only related to the Aro family maternally. It was also the evidence of the CW1 that the expanse of land at Sije Ajebamidele, Onikaun and Odo Esisun all belonged to the Akogun family where the defendants had their part. It was further the testimony of the CW1 that the Oniloda was who married a woman from the Aro family requested for land from the Aro family during the reign of Aro Fadunsi and was given a portion on the Aro family land on the right side along Ado-Ikere Road while the portion sold to the claimant was on left side. The CW1, in justifying the title of the Aro Osakuajo family to the land in dispute, was definitely giving the traditional history of the land in dispute. It was clear that the narration above would not be enough to prove the history of how the Aro family got onto the land in dispute. The testimony was more of how the Oniloda family was not entitled to the land rather than as to how the Aro Osakuajo family got on to the land. A party relying on traditional history in proof of his claim of title to land must plead and prove the founder(s) of the disputed land, how he or they founded it and the particulars and names of intervening owners through whom he claims. See OKEGBEMI Vs AKINTOLA (2008) 4 NWLR (PT. 1076) 53 @ 68. The testimony of the CW1 could therefore not be said to be a complete traditional history of the land in dispute in any manner or form.
Apart from the above, it is conceded that Section 35 of the Evidence Act 2011 makes traditional history permissible as an exception to admissibility of hearsay evidence particularly in land matters. See OYEKOLA V AJIBADE (2004) 17 NWLR (PT.902) 356 @ 382 Para A per Adekeye J.C.A. However, it ought to be pointed out that traditional history in simple terms is the history of a family or community as may be relevant to a claim which title to a subject matter or a right or interest sought to be established to obtain a declaration as a principal relief or in order to be protected by an injunction. It is history of which his living person can given an eye-witness account: Evidence in respect of it is the story handed down from generation to generation by word of mouth as hearsay. See IGBOJIMADU V IBEABUCHI (1998) 1 NWLR (PT. 533) 179C, 190 Para E Per Uwaifo JCA. The CW1 had testified that he was being cheated because he was not a native of Ado-Ekiti.
It was further the testimony of the CW1 that he was in Lagos State when the land was purchased and that it was Chief Dare Bejide that handed the transaction on his behalf. It was therefore strange that the CW1 while in the witness box gave what could be called a “detailed” history of the land in dispute. I believe only a member of a particular family could give the traditional history of a land in dispute because such histories are handed down from one generation to another. There was no way that the traditional history of the land in dispute could have been handed over to the CW1 who was not a native of Ado-Ekiti and who was ordinarily not permanently resident in Ado Ekiti. He did not testify as to how he came to know the history of the land and the person who narrated it to him. In my opinion, believing the testimony of the CW1 as to the traditional history of the land in dispute would be stretching the exception to the rule against hearsay as encapsulated in Section 35 of the Evidence Act beyond logical limit. I do not however intend to do that here. It is settled that an inconclusive and deficient evidence of traditional history cannot be plausible and credible and definitely cannot sustain a claim for ownership of land. See ALI V SALOHU (2011) 1 NWLR (PT. 1228) 227, JIYA V AWUMI (2011) 4 NWLR (PT. 1238) 467. The law is trite that a trial Judge is entitled to reject evidence of traditional history which is incredible. See TAIWO & ORS V OGUNDELE & ORS.
Traditional history is, like native law and custom, a fact to be proved by credible evidence. I therefore do not believe the evidence given by the CW1 as to the traditional history of the land in dispute. In the absence of that, I can only conclude that there was no evidence as to how the Aro Osakuajo family acquired title to the land in dispute. I wonder why no single member of the Aro family was called as a witness by the claimant. It was the evidence of CW1 that the remaining members of the Aro Osakuajo family had colluded with the defendants in order to reclaim the land that their forefathers sold, I find it difficult to believe this piece of evidence. I however do not believe him even if it were true as claimed, he should have resorted to independent witnesses.
It was his testimony that the matter once reported to the palace of the Ewi of Ado-Ekiti on his behalf by the CW4 and that the Ewi delegated Chief Ologun Adele to look into the matter and that the latter found against the defendants. I wonder why the claimant failed to call Chief Ologun Adele or any of the Palace Chiefs who arbitrated in the matter or tender the Judgment arrived at in the Palace. If he had lost confidence in the Aro Osakuajo family, had he also lost confidence in the Palace Chiefs? Failure to do all these, in my opinion weakened the case of the claimant. There was therefore no evidence before as to how the Aro Osakuajo, from who Alhaji Ajijola bought the land in dispute came to own off. It is settled that in a declaratory relief, a claimant had to rely on the strength of his case and not on the weakness of the defendant. See: NJOKU V REGT. TRUSTEES, C.4.G.F. (2006) 18 NWLR (PT. 1011) 239. This, the claimant had failed to do in instant case.”

The appellant pleaded that the original owners of the land in dispute are Aro Osakuajo family. The burden is therefore on the appellant as claimant to prove how the Aro Osakuajo family acquired the land. The appellant is required to plead and prove by cogent and credible evidence who founded the land, how the land was founded and intervening owners through whom he claims. Appellant did not plead the genealogical tree of the original owner of the land in dispute. It is not sufficient to just plead simply as averred in paragraph 5 of the Statement of Claim that Aro Osakuajo family are the original owners of the land in dispute. It is trite that parties are bound by their pleadings. The appellant only led evidence as to how he purchased the land in dispute from Alhaji Ajijola who in turn purchased the land from Aro Osakuajo family. The case of ELEGUSHI V OSENI (2005) ALL FWLR (PT. 282) 1837 is very relevant regarding traditional history/evidence and inheritance and customary grant. The Supreme Court at page 1852 per Onu, JSC had this to say:-
“This is because proof of ownership of land by traditional history is usually based on hearsay evidence, that is oral evidence often extending beyond human memory and time of the witnesses narrating the history, which narration was handed down from generation to generation up to the present one…….To establish traditional evidence of title by conclusive evidence, the plaintiff must plead and prove such facts as:-
(a) Who founded the land in dispute
(b) How they founded the land, and
(c) The particulars of the intervening owners through whom they claim.
See the cases of NKADO V OBIANO (1997) 1 NWLR (PT. 482) 374 SC, OHIAERI V AKABEZE (1992) 2 NWLR (PT.221) 1 ANYAWUN V MBARA (1992) 5 NWLR (PT. 242) 386, PLARO V TENALO (1976) 12 SC 32 and MOGAJI V CADBURY (Supra).”

Having examined the pleadings and the evidence adduced, I am of the considered view that the findings of the learned trial Judge reproduced (Supra) cannot be faulted.

As rightly submitted by respondent’s counsel, the traditional history adduced by the DW3 on pages 40-44 of the record was not challenged by the appellant under cross-examination. See pages 122-125 of the record. It is trite that evidence unchallenged under cross-examination stands. DW1, Chief Aropetu Oluropo, the Aro of Ado-Ekiti in his evidence in chief on page 39 of the record gave evidence that he was the traditional chief of the Aro family of Ado-Ekiti and custodian of Aro family land particularly the one along Ado-Ikere Road, Ekiti State. He testified further that the land in dispute belonged to the respondents’ family and that both families i.e the respondents and his families had been farming in the area. On page 121 of the record, he said he did not know Ajayi Suberu and Ogunleye Osakuajo, the persons who purportedly sold the land in dispute to Jolatrade Nig. Ltd. DW2 also another principal member of Aro Osakuajo family stated in his evidence in chief on page 45 of the record thus:-
“The land in dispute belongs to the defendants (now respondents) family and not Aro Osakuajo family as being claimed by claimant (now appellant).”

Under cross-examination he said he did not know Suberu Osakuajo Francis Oladeji. See pages 121-122 of the record. The appellant who traced his root of title to the Aro Osakuajo family of Ado-Ekiti failed to call any member of the said family to give evidence in support of the appellant’s case. Incidentally DW1 and DW2 were members of the Aro Osakuajo family.

The learned trial Judge rightly found the traditional history adduced by the respondents more probable than the evidence adduced by the appellant. It is settled that in a declaratory relief a claimant had to rely on the strength of his own case and not on the weakness of the defendant. See EYA Vs QUDUS (2001) 30 WRN 105, OLUKOYA Vs ASHIRU (2006) 30 WRN 283 at 315.

Appellant also relied on acts of long possession in claiming ownership of the land in dispute. Acts of long possession is one of the recognized ways of proving ownership of land. It was the evidence of the claimant and his witnesses that Alhaji Ajijola and his wife bought the land in dispute from the Aro Osakuajo Family, that Alhaji Ajijola and his wife were in occupation from 1976-1995 using the land for commercial farming and eventually selling it to the claimant. As earlier stated, the title of the original owner of the land in dispute i.e Aro Osakuajo family was put in issue. Claimant failed to plead and prove the title of his original grantor. The learned trial Judge stated the correct position of the law when he held at page 179 of the record thus:-
“It is settled that if a party relies on and pleads a grant and his root of title to land, he is under a duty to prove such grant to the satisfaction of the court and he cannot rely on acts of long possession pursuant to the grant if he fails to prove the grant. For once the root of title fails, the acts of long possession based thereon will be equally unavailing. It is not permissible to substitute a root of title that has failed with acts of possession which should have derived from that title. See ODOFIN Vs AYOOLA (1989) NSCC 711 at 731, MOGAJI Vs CADBURY (1985) 2 NWLR (PT.7) 393 @ 432 Para C.”

Going by the reliefs sought, appellant did not claim acts of possession/ownership exercised on the land, in the alternative. It is settled by a chain of authorities that where the pleaded title to land has not been proved as in this case, it will be unnecessary to consider acts of ownership and possession which acts are no longer acts of possession but acts of trespass. See BALOGUN V AKANJI (1988) 1 NWLR (PT. 70) 301, FASORO & ANOR V BEYIOKU & ORS (1988) 2 NWLR (PT.76) 263, OYADARE V KEJI (2005) ALL FWLR (PT.247) 1583 @ 1592. In the light of the authorities cited Supra, I am of the considered view that the appellant having failed to prove the title of his grantor through traditional history cannot fall back on acts of ownership and or acts of possession to prove his title.

The pleadings and evidence adduced also disclosed material contradictions as to who actually bought the land from the Aro Osakuajo family, the size of the land bought and when it was actually bought. The learned trial Judge identified these material contradictions at page 179-180 of the record wherein he said:-
“What was more, there were material contradictions as to who actually bought the land from the Aro Osakuajo family, the size of the land bought and when it was actually bought. While exhibit 5 stated that plots of land on Aro Osakuajo land along Ikere Road, Ado-Ekiti measuring 8.399 hectares was sold to Jolatrade Nig Ltd sometimes in 1976, the CW3 testified that the Aro Osakuajo family in 1976 sold the land in dispute to late Alhaji Tijani Ajijola. It was also the evidence of the CW4 that he along with another person visited the then Chief Aro who confirmed that the land was sold to Alhaji Ajijola by the Aro family in 1976. Exhibit 3 in its own case stated that another area of the land measuring 13 plots was sold to Fausat Funmilayo Ajijola on 20th January, 1978.
What of the testimony of the CW1 as contained in his evidence in Chief that the Aro Osakuajo family sold portions of this land to Ajijola and his wife at different times? This was also in conflict with the testimony of the CW1 that Aro Osakuajo said part of the land to Alhaji Ajijola in 1976. It also conflicted with the testimony of the CW1 that Chief Suberu Adedeji on behalf of the Aro family sold the remaining part of the land to Alhaji Ajijola in 1978. It was the claim of the CW1 that the land was transferred to Jolatrade Nig Ltd which was a corporate personality on 9th day of January, 1988. If this were true, how come then as shown in Exhibit 11 that it was Alhaji Ajijola who sold the land to the claimant in 1995 and referred to the land as his? The above were contradictions which in my opinion, had not been successfully explained away, had created doubt in my mind as to the credibility of the case for the claimant witnesses as to how and when the land was bought and the dimension of the land bought. It is settled law that where there are material contradictions in the evidence of party’s witnesses, it is not the duty of the court of law or tribunal to pick and choose from the evidence of such witnesses or accredit one witness and discredit the other. The court or Tribunal must hold that such a party had not proved his case. See OGUNBIYI Vs OGUNDIPE & ORS (1992) 4 NWLR (PT. 253) 24 @ 35 E-H.”

The findings and conclusion arrived at by the learned trial Judge are unassailable. The material contradictions had not been successfully explained away by the appellant. It is for the appellant to adduce cogent and credible evidence as to how he acquired ownership of the land in dispute. Appellant had failed to establish the ownership of the land in dispute by the Aro Osakuajo family and that the said family validly transferred the land to Alhaji Ajijola who in turn validly transferred same to the appellant.

As regards issue 3, I am of the humble view that the complaint raised by the appellant is unfounded. I have perused pages 176-177 of the record. The learned trial Judge did not approbate, reprobate or speculate in his findings as alleged by learned counsel for the appellant. The mere fact that the learned trial Judge remarked that appellant gave detailed traditional history of the land in dispute would not prevent him from rejecting the said evidence as not being probable. I also do not find the observation made by the learned trial Judge that only members of a particular family could give the traditional history of a land in dispute as being speculative. Traditional histories are handed down from one generation to another. The learned trial Judge observed that CW1 did not testify as to how he came to know the history of the land and the person who narrated it to him. It is within the competence of the trial court to assess the evidence adduced and ascribe probative value to same.

Issue 4 is whether the failure to call the names of person on Exhibits 3, 4 and 5 and other witnesses weakened the case of the appellant and the exhibits tendered by him. The findings of the trial court complained of are at page 178 of the record. The trial court had this to say:-
“Now, the claimant relied on Exhibit 3, which was titled as an agreement but in fact was not in that it was only signed by some people as members of the Aro Osakuajo family. It was not signed by Mrs Fausat Olufumilayo Ajijola. The signatories were Suberu Osakuajo, Ajayi Suberu, Julius Ojo and Francis Oladeji. Nothing stops the claimant from calling any of the signatories to Exhibit 3 as witness in respect of the sale of the land in question. This, the claimant failed to do and he did not tell the court their whereabouts. This was more so that the DW1 and DW2 who were members of the Aro Osakuajo family denied knowledge of anybody by the names Suberu Osakuajo or Ajayi Suberu or Ogunleye Osakuajo or Francis Oladeji. Same thing goes for Exhibits 4 and 5 which were affidavits of ownership. Failure to call the signatories or give reasons for the inability to call them, in my opinion, weakened/reduced the weight to be attached to Exhibits 3, 4 and 5.”

I have examined Exhibits 3, 4 and 5 respectively. Exhibit 3 is an agreement between Aro Osakuajo and Mrs Fausat Olufunmilayo Ajijola. As rightly observed by the learned trial Judge, Exhibit 3 was not signed by Mrs Fausat Olufunmilayo Ajijola. Her testimony would be necessary to clear any doubt as to whether such transaction actually took place or not, more so, as DW1 and DW2 denied knowledge of anybody by the names Suberu Osakuajo or Ajayi Suberu or Ogunleye Osakuajo or Francis Oladeji as members of their family who were signatories to the said exhibits. Having regard to the evidence adduced, I cannot fault the findings made by the learned trial Judge.

Appellant also claimed damages for trespass and injunction. Learned counsel for the appellant contended that assuming the appellant fails in his declaration for title to the land in dispute, it does not follow that he will also fail in his relief for injunction, damages and others once possession to the land has been established, since a party in possession can sue for injunctive relief against a trespasser. Reliance was placed on OWHONDA V EKPECHI (Supra) 345 Paras C-G and BANKOLE V DADA (2003) 11 NWLR (PT. 830) 174 at 228-229 G-A. In AJERI V UGORJI (1999) 10 NWLR (PT. 621) 1, KUTIGI JSC (as he then was) stated thus:-
“…..I think the law involved is quite clear. It is that the claim for damages for trespass is not dependent on the claim for a declaration of title as the issues to be determined on the claim for trespass are whether the plaintiffs had established their actual possession of the land the Defendants trespass on it which are quite separate and independent issues to that on their claim for a declaration of title, while a claim for injunction is also not necessary bound to fail after a claim for a declaration of title fails, provided the area of land in respect of which an injunction is sought is clearly defined and ascertained (See for example OLUWI V ENIOLA), KAREEM AND ORS V OGUNDE AND ANOR (Supra).”

The question now is has the appellant proved exclusive possession to be entitled to damages for trespass. There is evidence on record to the effect that the land for which the appellant sought a declaration was 8,300 hectares of land. It is also in evidence that appellant sold part of the land to Prince Ajibola Simon of Top Crown Petroleum Ltd who used same as Petrol Station. In paragraph 15 of appellant’s witness statement on oath, he said at page 12 thus:-
“15. That from the time of purchase, I enjoyed peaceful possession of the land and in 1999 I sold part of the land to Prince Ajibola Simon of Top Crown Petroleum Ltd who used same to build Petrol Station and he had since enjoyed unencumbered possession of the portion of the land sold to him.”

Appellant also gave out part of the land to Prophet James Onitade on which he was operating a Church. Having regard to the available evidence, it is my firm view that appellant has failed to prove that he is in exclusive possession of the whole land in dispute, as such he is not entitled to damages for trespass. Having sold part of the land, he cannot claim to be in exclusive possession. Having failed to prove declaration of title to the land in dispute, injunction cannot also be granted. The learned trial Judge rightly in my view concluded at page 181 of the record thus:-
“It could therefore not be safely said that the claimant was in possession of the whole land in question. It is a basic principle of law that only a person in possession of land can maintain an action in trespass. See ODEKILEKUN V HASSAN (1997) 12 NWLR (PT. 531) 56. The failure of the claimant to establish that he was entitled to declaration of title in respect of the land in dispute or that he was in possession of it had knocked the bottom off the claim for an injunction. An injunction is not granted in vain…… In fact, it is settled that in a claim for declaration of title to land, damages for trespass and injunction, once the claims for title and damages fails, the claim for injunction must fail. See LAWSON V AJIBULU (Supra) 36 Paras C-F. The action for perpetual injunction against trespass on the part of the defendants was therefore not maintainable against the defendants”.

The Lower Court in my humble view has unquestionably evaluated and appraised the facts of the case, as such it is not the business of this court to interfere with the findings arrived at as same are not perverse. See GBADAMOSI V DAIRO 2007 48 WRN 1. Accordingly issues 2 – 4 are resolved against the appellant.

In the final analysis, I hold that this appeal is devoid of merit and same is accordingly dismissed. I affirm the Judgment of the Lower Court delivered on 11th April, 2014 by Ogunmoye, J. There shall be costs assessed at N30,000.00 in favour of the Respondents.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother ADZIRA GANA MSHELIA, JCA. In my considered view, his lordship has dealt extensively and exhaustively with the issues for the determination of the appeal to the extent that I am not only in complete agreement with the reasoning and conclusions in the lead judgment but have nothing to add thereto by way of contribution. Accordingly, I adopt the lucid and illuminating lead judgment as mine.

I too therefore find the appeal to be lacking in merit and hereby dismiss the same. Appeal is accordingly dismissed and the judgment of the Lower Court affirmed. I also abide by the order in relation to costs as contained in the lead judgment.

FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother, ADZIRA GANA MSHELIA, J.C.A. and I entirely agree with the lucid reasoning contained therein and the conclusion arrived thereat.

My learned brother, has carefully treated all the issues canvassed in the appeal in such an admirable manner, that I have nothing useful to add to the well researched judgment.

I adopt the reasons and the conclusion arrived at, by my learned brother, as mine in reaching a conclusion that the appeal lacks merit. I also dismiss the appeal. I abide by the order made as to costs in the lead judgment.

Appearances

T. M. Ogunmoroti with T. Kolawole Esq., A. Adeleke Esq. and (Miss) O. OgunmorotiFor Appellant

AND

Adedayo Adewumi with L. A. Fasanmi Esq., M. O. Agbadaola Esq. and (Miss) Oyebola AjomoleFor Respondent