CHIEF LISADOKO JOHN OROTUSIN v. CHIEF JOSEPH AKINBINU AKINNAWA
(2016)LCN/8203(CA)
In The Court of Appeal of Nigeria
On Monday, the 22nd day of February, 2016
CA/B/377/2008
RATIO
EVIDENCE: PROOF OF OWNERSHIP BY TRADITIONAL HISTORY; IN WAS SITUATION CAN THE COURT DECLARE ON EVIDENCE OF TRADITIONAL HISTORY ALONE
In Alli v. Aleshinloye (200) FWLR Pt.2610 at 263-? 2640 Iguh, JSC. Stated thus: it is now recognised that the fact of first settlement upon land seems to be one of the oldest methods of acquiring title to land. As I have already observed, if traditional evidence and this includes evidence of first settlement, is satisfactorily placed before the Court and accepted, title to the land can be declared on such evidence of tradition alone.
See Chief Odofin v. Ayola (1984) 11 SC 72 at 144 where this Court Per Oputa, JSC put the matters as follows: “first settlement seems the oldest method of acquiring title to land. If the traditional evidence of such first settlement is accepted title can be declared purely on such traditional evidence.” per. MOHAMMED AMBI-USI?DANJUMA J.C.A.
PRACTICE AND PROCEDURE: WHAT THE COURT SHALL CONSIDER IN DETERMINIG WHEN AN APPEAL IS ON ITS MERIT
It is the totality of the evidence led and as material to the case that shall be considered by a Court of law. It is not the snippets of evidence or the resolution of a tangential issue that shall determine an appeal on its merit. per. MOHAMMED AMBI-USI?DANJUMA J.C.A.
JUSTICES
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
CHIEF LISADOKO JOHN OROTUSIN
(For himself and on behalf of late Orotusin Family)
– CROSS RESPONDENT Appellant(s)
AND
CHIEF JOSEPH AKINBINU AKINNAWA
(For himself and on behalf of late Jomudoko Akinawo Family)
– CROSS APPELLANT Respondent(s)
MOHAMMED AMBI-USI?DANJUMA J.C.A. (Delivering the Leading Judgment): ?On the 30th of June, 2008, His Lordship, honourable Justice A.O. Odusola, J of the Ondo State High Court sitting at Akure Judicial Division had entered judgment in favour of the plaintiff herein and against the Defendant/Appellant herein and in the following terms:-
(a) “Declaration that the plaintiff is the person entitled to be granted the Certificate of Statutory Right of Occupancy over a piece or parcel of land lying, being and situate at old Ondo – Okeigbo Road, (now referred to as Funbi – Fagun Road Ondo and old Epe – Onigbo ancient foot path less 700 feet x 785 feet sold to the Defendant father within the plaintiff’s land.
b. …………………….
c. ……………………
d. …………………….
?Aggrieved by the aforesaid decision, the Defendant lodged this appeal upon 6 grounds of Appeal on 9 – 7 – 2008 and 4 additional grounds of appeal; and upon which the parties transmitted the record of Appeal and filed all processes which include the Appellant’s Brief of Argument and the Reply to the Respondent’s Brief of Argument and a Reply to
a cross – Appellant’s Brief of Argument.
On his part, the Respondent filed a Respondent’s Brief of Argument and a Cross – Appellant’s Notice and Grounds of Appeal upon which he filed a cross appellant’s Brief of Argument and a Reply to the Cross – Respondent’s Brief of Argument.
It suffices to state that some of the processes were filed out of time upon the leave of this Honourable Court.
The Appellant, by his Appellant’s Brief of Argument in Appeal No. CA/B/377/2008 formulated 4 (Four) Issues for determination to wit:
1. Whether the Appellants grantor’s title is in issue and if yes whether it has not been well pleaded and proved by oral evidence.
2. Whether upon a proper evaluation of Exhibits ‘G’ and ‘K’, Exhibit ‘G’ does not acknowledge the existence of Exhibit ‘K’.
3. Whether from the state of pleadings and the evidence adduced by the parties, to the suit, the respondent has satisfied the requirement of the law by discharging the burden of proof with a degree of certainty, the description, extent, size and nature of the land that he wants a declaration of title to be granted.
4. Whether the Respondent has proved the root
of his title to the land he is laying claim to.
On his part, the Respondent formulated 4 issues in the main appeal and a sole issue in the cross- appeal.
At this stage, I am concerned with the main or substantive appeal, wherein the issues are thus:-
”1. Whether the onus of proof was not on the Appellant who asserted that the land in dispute was held in common with the respondent as Udoko Communal land to establish the Udoko community root of title to the land in dispute.
If the answer to the above is in the affirmative, whether the Appellant discharged the onus on him.
(Grounds No.1 and 4 of the original Grounds of Appeal and Ground 1 of the Additional Grounds of Appeal)
(ii) Whether the lower Court was not right when it did not come to the conclusion that Exhibit ‘G’ acknowledges the Existence of Exhibit ‘K’ when such Issues was not submitted in evidence before that Court and Exhibit “G” itself was not unequivocal on the issue (Ground 2 of the original Ground of Appeal).
(iii) Whether the lower Court was wrong when it came to the conclusion that the land in dispute is well known to both parties and therefore made no issue
of its identity. (Ground 3 of the original Ground of Appeal and grounds 3, 7, 4 of the additional Grounds of Appeal.
(iv) Whether the trial Court was wrong when it granted the respondent’s claims against the Appellant
(Ground 5 of the Grounds of Appeal and Ground 2 of the Additional Ground of Appeal).
From the issues of both parties it is obvious that while the issues are similar, the Issue 1 of the Appellant speaks the same tune with the 4th Issue of the Respondent; all to the question whether the Appellant as plaintiff had proved his claim as sought at the trial Court.
The Argument of the Appellant on this issue (his issue 4) is that the Respondent as plaintiff at the trial had relied on traditional history through one LOSAN to prove his entitlement to the land he laid claim to.
Learned counsel submitted that the Appellant had joined issues on this assertion as made in Paragraphs 4, 5 and 5(a) of the Further Amended Statement of Claim by averring at Paragraphs 17 and 18 of the Amended Statement of Defence that LOSA was a slave and had no land in Udoko Community till death.
?Vehemently submitted that the Respondent as plaintiff
had his root of title demolished by DW – A traditional ruler of the community who testifying for the Defendant/Appellant had shown at page 67 of the record of his evidence of 15 – 5 – 2006 that as a slave LOSAN could not and did not own any land in Udoko Community, tilt death. That DW2 had also testified to the same effect.
The learned counsel was agitated on why the trial Court came to the conclusion that the totality of the evidence before the Court showed that the plaintiff had proved how the entire land of his family was founded by settlement through deforestation, without resolving the questions whether:
a. LOSAN, the great grandfather of the Respondent was infact a slave in Udoko Community.
b. Whether as a slave LOSAN can acquire property either by settlement or grant.
c. Whether LOSAN infact lawfully acquired land by settlement.
That there was no rebuttal of the alleged slave status of LOSAN, the grandfather of the Respondent through whom he claimed the land.
Submitted that the root of the founder of the Respondent’s family lineage (through LOSAN) is doubtful, baseless and unfounded. That the traditional evidence relied
upon by the Respondent was broken and disjoined.
Its learned counsel after re- stating the 5 (five) ways of proving title to land as established in the locus classicus of Idundun & Ors v. Okumagba (1976) 6 and 10 SC 227 at 246 – 250, Alli v. Alesinloye (2000) Vol. 2 SC NQR 285 at 288, contended that it is not sufficient for a party who relies for proof of title to land on traditional evidence as in this case to merely prove that he or his predecessor in title owned and possessed the land from time immemorial.
That such party is bound to plead such facts and lead such evidence to prove the following:-
1. Who founded the land.
2. How the land was founded
3. Particulars of the intervening owners through whom he claims.
Alli v. Alesinloye ( Supra ) refers. He concedes that the Respondent attempted this in Paragraphs 4 and 5 of his Further Amended Statement of Claim, there was no cogent evidence to prove this averment in the pleadings. That there was no proof of this pleading.
Submits that Respondent ought to have proved (1) how LOSAN got the land. Was it by war/conquest, hunting etc to show his settlement.
(b) Whether there was anybody on any part of the land then and/or its neighbourhood.
(c) Whether LOSAN did not come there as a slave, but as a native of so and so community and the reason for his necessity to settle there.
Further that there ought to have been evidence as to how he deforested “it”; that this cannot be done by mere vague statement of “he deforested it”. Was he doing it all alone then or there were helpers. Was he alone in the forest or with wife or wives and children? What was the nature of the land he was deforesting, was it a virgin land or land that had been cultivated but had over grown again. How are the trees etc. that adequate answer to these question would have shown how the land was founded.
That the Respondent had a duty to show whether Akintirin, the plaintiff/respondent’s father was the only child of LOSAN and how he single – handedly inherited the land.
Counsel queried why the youngest could have single handedly inherited the land.
He queried whether Oditintan was the only child and where the share of the other children was; that these were particulars of intervening owners that were absent in the
case at hand.
That the incident of the custom under which the respondent’s Losan became the owner of the land was not proved. Nwofor v. Nwosu (1992) 2 NWLR (Pt.264) 229 at 239 Part A – B referred. Finally on this issue, it was contended that the appeal should be allowed thereon as
according to the Appellant, the traditional evidence of the Respondent does not pass the principle laid down in law.
(b) The Respondent failed to show how his family single handedly acquired the land that he claims in an expansive communal land to the exclusion of other members of the community.
The Respondent by his issue and to the same effect as Appellant’s issue as discussed above referred us to the case of Ididun v. Akumagba (1996) 9 ? 10 SC 227 at 246 -? 250 on the 5 ways of proof of title and reminded this Court that the plaintiff/Respondent had relied on evidence of traditional history and possession of adjacent parcels of land to the land in dispute to prove his title to the land in dispute.
His submissions are as contained in his Brief of Argument. The Respondent had given evidence of his proof of title and narrated the
geneology of inheritance leading to him and from LOSAN, his great grandfather.
As submitted by the Respondent’s learned counsel, what is required for a traditional history to ground a declaration of title is that a plaintiff who relies on it must prove the founder of the land; how the land was founded and the particulars of intervening owners from the founder to the claimant without leaving any embarrassing gap. See Baronye v. Nwakwaihe (1997) 1 SC NJ 161 at 168.
In this case, the plaintiff/respondent had proved the founder-Losan and how it was so founded by deforestation; the luxury of and superfluous desire of the Appellants in this regard when he insisted on the nature of trees on the land whether it had been cultivated before and left fallow to re-grow, the nature of acts done in the “de-forestation” process etc are, in my, view pedantic and an over bearing burden on the law a burden not within the contemplation of this act of proof of ownership by traditional history of deforestation leading to settlement.
The Respondent had so satisfactory proved this method.
In Alli v. Aleshinloye (200) FWLR Pt.2610 at 263-? 2640 Iguh, JSC.
Stated thus: it is now recognised that the fact of first settlement upon land seems to be one of the oldest methods of acquiring title to land. As I have already observed, if traditional evidence and this includes evidence of first settlement, is satisfactorily placed before the Court and accepted, title to the land can be declared on such evidence of tradition alone.
See Chief Odofin v. Ayola (1984) 11 SC 72 at 144 where this Court Per Oputa, JSC put the matters as follows: “first settlement seems the oldest method of acquiring title to land. If the traditional evidence of such first settlement is accepted title can be declared purely on such traditional evidence.”
As rightly submitted by the Respondent’s counsel, evidence of dominion or explanations why the other members of the family or community were not the owners jointly do not arise.
This is more so that in this case, the Respondent had not claimed as a joint or co-owner. By this pleadings and evidence led, he only shared a boundary with the community land of Olodo and not that the land in dispute was part of the community land. This makes the references to communal Land and the un-called, for
burden of proof in that respect of no moment. As also submitted by the Respondent’s counsel. All that is required of a plaintiff who relies on grant or original settlement to prove title is to simply establish a grant or original settlement to the satisfaction of the trial Court and this he can do whether or not this is accompanied by the exercise of dominion over the land in dispute, an exercise which on its own may be sufficient to establish title to land.
The precise manner of the acquisition of the land need not be shown for this mode of claim to title to succeed. See Nkado v. Obiano (1997) 5 SCNJ 33 at 59.
The Appellant’s learned counsel had curiously submitted that there was no evidence on such details of personal particulars such as whether LOSAN the great grandfather of the Respondent/Plaintiff was alone or with others in the forest with wife or not and with children; and such other details that a witness claimant who was depending on traditional history which is a legally accepted “hearsay evidence” would not be expected to re-call or to be in the know of. This is moreso that such details if given would be suspect and may not be vouched
for in accuracy?
In Nkado v. Obiano (1997) 5 SCNJ 33 at 59, the Supreme Court per Onu JSC stated thus in that regard;
“It would in my view be unjust to insist that the respondents must fail because they did not show how Obekwu first acquired the land. For as earlier pointed out “time immemorial” means beyond human memory, time out of mind,” see Black’s law Dictionary (6th edition P.750 (ibid) indeed, it would run against the grain of justice to insist that the Respondents who had pleaded and called evidence as pointed out above must fail because they did not call evidence on an incident which occurred beyond human memory. For, come to think of it, any evidence which the respondents might have given as to the precise manner in which Obekwu, Egolum first acquired the land in dispute several generation ago, beyond living memory, could have been no better than speculative make-beliefs.”
The plaintiff/Respondent has led copious evidence of the possession of the family land which LOSAN founded. Evidence of title to an adjacent land shown by Exhibit “A”, – being Judgment won by this father on a land adjacent which was acknowledged by DW; See page-139
lines 24-34 page 140, line 1 of the record. The issue on non- finding on the status of LOSAN as slave is a non- issue just as it was at the trial as the father of the Respondent, a son of LOSAN had Litigated over Land and had Judgment in his favour as in Exhibit ‘A; and what is more the descendants held important chieftaincy title of Ojomu in Udoko community. That there is no evidence in the record referring to any slave status of Losan, during the litigation leading to the land action, he won per Exhibit ‘A’. That even from?Exhibit “D” relating to Chieftaincy tussle, the Appellant and DW, evidence in the tussle between one Akinmerola and the Appellant over Jumodoko Chieftaincy title, there was no reference to any salve status. The trial Court was justified in coming to the conclusion that the Plaintiff/Respondent had proved his claim that the entire land was founded by settlement through deforestation.
?On the issues of whether the land in dispute was not part of the Idoko community land, it is clear from the pleadings and the evidence of the Respondent/Plaintiff that it was not so pleaded and testified to. Rather it is a piece of land that shared
boundary with the community Land.
This Defendant/Appellant resisted the claim and asserted that it was his own Land.
The Defendant/Appellant cannot blow hot and cold; in one breath he cannot claim it was his own inherited land and in yet another breath claim, it was a community land and for him to place an unwarranted burden to defeat the Plaintiff/Respondent’s claim. The Respondent had pleaded, testified to and in address before us admitted that there was no doubt that Udoko communal land existed, but that it terminated at River Luwa which is the natural boundary between Udokoo communal land and the Respondent’s family land.
See Paragraphs 6 & 7 of the further Amended Statement of claim and Paragraphs 4 and 5 of the further Amended Reply to the statement of defence at page 67 lines 26 – 29, page 108 lines 19 – 25; page 109 lines 26 – 30 page 110, lines 3-4 of the record of appeal. The plaintiff emphatically showed that the land in dispute was part of his family land and the entirety of the boundary of the family land was led, with the land located in-situ.
The claim by the Appellant that the land was part of Udoko
community land was subject to proof by him as he, it was that asserted.
I agree with the Respondent’s counsel when he submitted that the Appellant had to prove how Udoko community came to be the owner of the disputed land. This he had to do by pleading and leading evidence.
See Ewo v. Ani (2004) 17 NSCRN 36 at 48 – 49, 52; Echi v. Nnamani ; (2000) FWLR (Pt.13) 2159 at 2176. The Appellant merely stated that the land is community land and that the Udoko’s are the Aborigines in Ondo Land without adducing any evidence on the root of title of the Idokos. The trial Judge was therefore, right when he concluded that the Appellant did not plead nor trace the root of title of Udoko community and that there was no evidence led as to how the land became a communal land. This had to be as the extent of the Plaintiff/Respondent’s family land terminating at River LUWA was not challenged nor controverted. It was rightly the truth.
See Ofolette v. State (2000) FWLR (Pt.12) 208 at 2098 – 2099. The evidence of DW, the Oba Samuel Adeyemi; Akinmusire conceding that the land in dispute belonged to Respondent/Plaintiff’s father. See Exhibit ‘A’ is an
admission against interest in favour of the plaintiff/respondent and against the Appellant, herein.
See Abubakar v. Yar’Adua (2008) 36 NSCCPR (Pt.1) 23 at 392.?Indeed, as argued by the Respondent, the Appellant misconstrued the Plaintiff/Respondent’s case when he referred to Udoko communal Land. Even then, where is the credible evidence of the totality or extent of the Udoko community land that the disputed land formed part of? It was porously testified to as indicated in the record but it was punctured under cross-examination when the Appellant admitted that it included the land covered by Exhibit ‘A’ which was won by the Respondent’s father and other families’ parcel of land which he could not account. DW, evidence of this boundaries of the Larger portion, of which the alleged land was claimed to be a part, was not forthcoming and the claim had to fail on the authority of the case of Salami v. Gbodoolu and Ors (1993) 4 SCNJ 196 at 206 of 208. The Appellant’s claim had to fail at the trial and rightly so; as the burden of proof on him had not been satisfied. The plaintiff’s case was strong and in this case, it was further strengthened by the weak
case of the Defendant/Appellant. Ngene v. Igbo (2000) 2 SCNJ 136 at 149.
Issue 4 of the Appellant and issues 4 of the Respondent are all resolved in favour of the Respondent and against the Appellant in that the Plaintiff/Respondent had proved his claim at the trial whilst the Defendant/Appellant who had the burden of proof of the communal title alleged failed to prove same. In the circumstances of the resolution above, I need only say that the issue iii of the Respondent on identity of the land, and Exhibits ‘G’ and ‘K’ (covered) by issue 2 of the Respondents which are same as Appellant’s Issues 2 and 3 are all subsumed in the issues resolved, already.
As relating identity of the land, I find no dispute about same. None of the parties nor the Court has been misled in any way.
The Appellants’ Issue one and argument thereon smarks of a presumptive thesis.
The contents and purport of Exhibits ‘G’ and ‘K’ do not detract from the essence of the plaintiff’s/Respondent’s claims which had?been proved and were in no way prejudiced by those Exhibits. In any case, the Idoko community had not taken out any Suit against the Respondent for a
declaration of title as per damages in trespass.
This is moreso that a right in a third party as is known in the latin Maxim of Jus tertii is not a defence to an action for declaration of title as sought to be made by the Appellant here. The argument on the comparison between Exhibits ‘K’ and ‘G’ with a view to discerning the issue of whether the Appellant’s father never had land thereat long before the one sold to him by Exhibit ‘G’ is of no moment as the Exhibit ‘K’ relate to parts of the Udoko communal land and not to the land claimed.
It is the totality of the evidence led and as material to the case that shall be considered by a Court of law. It is not the snippets of evidence or the resolution of a tangential issue that shall determine an appeal on its merit. On the whole, the appeal fails and is dismissed.
The judgment of the trial Court is affirmed. I award no costs. Before arguing the Appeal just dismissed, the Learned counsel for the Respondent had indicated as a Preliminary Issue that no issue was formulated by the appellant on ground 6 of the original notice of Appeal and that it should be struck out as abandoned and on the
authority of the case law of Oduntan v. Akibu at (2000) FWLR (Pt.12) 1982 1t 1995.
Though not properly raised as a point of preliminary objection, I take judicial of this fact of no issue distilled from the said Ground No.6 of the Notice of Appeal and strike out same accordingly. This, I do as a Court of record has the jurisdiction to look at its records. See E.A. Isokwo Motors v. UBA 2008 SCNJ 1.
?CROSS APPEAL
The lone issue in the Cross- Appeal is whether the trial Court was not wrong in his finding in respect of Exhibit “K”. Arguing this issue; Cross-Appellant argued that the parties had joined issues on whether the respondent’s father signed Exhibit “K”. Paragraphs 14 and 23 of the Amended Statement of Defence and Paragraph 3 to Paragraph 7 (a) of the further Amended Reply to the Statement of Defence. Plaintiff/Respondent denied that his father signed Exhibit ‘K’. That his father never used stamp in 1954 and that apart from stamp, his father equally thumb printed documents after stamping it. Tendered
Exhibits E, H, H1, and C1 in proof of his assertion of non- stamping and stamping with thump-printing thereon documents executed by his father as averred and testified to; that the Defendant/Appellant did not challenge this evidence in cross-examination. Counsel argued that the conclusion of the Court thus- ” the evidence of DW (sic) to the effect that the father of the plaintiffs was always putting stamp on any document he executed, and that he used to thump-print when he had not got a stamp was not controverted, was wrong. That the same Court had held that “I cannot find any marked difference between Exhibits K and Exhibits E, H and H1, tendered by the plaintiff except that in the later Exhibits there were thumbprint .” It was submitted that the thumbprints found by the lower Court on Exhibits E, H and H1 that was not present on Exhibit K is the issue submitted before the lower Court for resolution. The thumb prints on Exhibit E and H are the contrary evidence of the manner the Respondent’s father used to execute documents as opposed to the manner the appellant alleged the Respondent’s father used to execute documents.
?It was submitted that the contrary
evidence of the execution of Exhibits E, H and H1 rendered doubtful the fact that the Respondent’s father executed Exhibit ‘K’ was doubtful if one of the alleged grantors of Exhibit ‘K’ executed it as his stamp was not there, nor his thumbprint, it was therefore doubtful Exhibit ‘K’ was valid. It stood vitiated as it cannot be said that the land in Exhibit ‘K’ was granted to the Appellant’s father in the year 1954 by the Udoko Community by the hands of people including the Respondent’s father. It is immaterial that DW, identified his father’s signature on Exhibit ‘K’ and that it is curious that the DW’s, father who executed Exhibit ‘K’ turned round in Exhibit ‘A’ to concede that the land in dispute belong to the Respondent’s father.
That the document Exhibit ‘k’ does not speak for itself as it offends against Section 160 (1) of (2) of the Evidence Act 2011 as the name of “Chief Kogun Ogunboluni is interlineated therein and no evidence was given at the trial to explain this.
Moreso, the document, Exhibit ‘K’ is an unregistered registrable instrument and does not qualify as document of title and offends Section 16 of the Land Instrument Registration
Law of Ondo State.
That in the absence of evidence of its content, it is without legal consequence and void. The Appellant had argued otherwise.
I am not persuaded in the argument of the Respondent on this issue and hold that the cross respondent is right while the cross Appellant is wrong. The trial Court did not come to wrong conclusion on Exhibit ‘K’ in the circumstance. The Exhibit ‘K’ purporting to be a document of title was invalid for non- registration as argued in the Cross-Appellant’s reply Brief of Argument and therefore in admissible, for that purpose. But was tendered for the purpose of corroborating the evidence relating to when a document could be said to have been signed by or executed by the father of the Respondent/Plaintiff. It was not in admissible perse; and was rightly not objected to when tendered.
?I agree with the learned counsel for the Respondent/cross Appellant that it is the use to which the cross-respondent sought to put Exhibit ‘K’ to ? i.e. to prove the title of the cross-respondent and Appellant that was in appropriate. The said Exhibit ‘K’ conveyed not title to him as the title of the Udoko community that
purportedly conveyed the title had not been established. The Exhibit ‘K’ did not qualify as a document of title over the land in dispute.
I agree with the cross- Appellant’s counsel when he relied on the cases of Itauma v. Akpeime (2000) FWLR (pt 16) 2806 at 2825, Usman v. Kareem (1995) 2 SCNJ 1258 at 164 per Wali, JSC and Section 16 of the lands Instrument Registration Law of Ondo State in submitting that the Exhibit ‘K’ was a registrable document affecting land and not having been registered, it would serve no useful purpose in resolving the dispute in this case, this is as relating to title in the Land claimed only.
However, the finding of the trial Court on the Exhibit ‘K’ would appear to be justified. The Exhibit ‘K’ was pleaded by the Appellant/Cross-Respondent herein who was Defendant at the trial Court; and as the evidence or grant of land claimed by him. See Paragraph 13, 14 and 15 of the Amended Statement of defence, of 10-7-2006. The Cross Appellant did not deny the existence of the document but the execution of same by his own father. Other signatories did not
deny its existence as DW, son to one of them identified his father’s signature. That the Cross-appellant’s father was a High Chief Ojomu of Udoko then and thus had is stamp fixed on Exhibit K on 1954 but in 1964 when other Exhibits were executed, he had been dethroned, hence he only thump-printed. There had not been shown to exist any alteration let alone its adverse effect on the interest or obligation of the parties changed or the Legal effect of the document.
It is therefore of no moment under S.160 (7) of the Evidence of Act even if it were an alteration.
The cross-Respondent’s counsel had argued that there was no objection to the tender and admissibility of Exhibit ‘K’ and that it was not in admissible perse. That it cannot be challenged on appeal. He referred to the cases of Alade v. Okulade (1976) 2 SC 183; Owena Bank (Nig) PLC v. Punjab National Bank (2000) 5 NWLR (Pt 658) 635 ratio 4; Raimi v.?Akintoye (1986) 3 NWLR (Pt.26) 97.
Thumb prints were affixed as even DW2 testified to this fact.
The veracity of this was not challenged nor shaken at all.
?I agree with the Cross-Respondent that the assessment of this examination of
Exhibit ‘K’ should not be lightly tampered with. Thumb printing of the Exhibit by the Cross-Appellant’s father, and illiterate, after the affixing of the stamp cannot be faulted and does not make it an alteration or interlineations as there was no proof that the right of the parties charged had been affected in anyway.
I agree that Exhibit ‘K’ is not in admissible perse and was not tendered to prove the existence of interest in the land claimed in the litigation leading to the main appeal.
I find no merit in the cross-appeal. The lone issue and appeal is resolved against the cross-appellant and in favour of the Cross-Respondent.
Cross-Appeal dismissed.
Parties to bear their respective costs of prosecution and defending this Cross-Appeal.
SOTONYE DENTON WEST, J.C.A.: I have had a preview of the judgment of my learned brother Honourable Justice Mohammed A. Danjuma JCA., just delivered. I only wish to contribute my own view to the affirmation of the lower Court’s judgment.
?My learned brother Mohammed A. Danjuma has dealt exhaustively with all the issues for determination in this appeal and since I agree with
them, I adopt them.
There is no gain saying that it is the totality of the evidence led which are material to the case that the Court considers and this ultimately tilts the scale of balance in favour of the party that adduced it, based on the preponderance of evidence. See IKYEREVE IORDYE v. IHYAMBE (2000) 15 NWLR (PT. 692) 675, IN RE: OTUEDON (1995) 4 NWLR (PT. 392) 655.
In an action for Declaration of Title, as in the instant case, the Respondent as Plaintiff at the lower Court was on his part able to adduce credible evidence of first settlement and thereby possession of the res in dispute which LOSAN, the great grandfather of the Respondent/Plaintiff founded and by this, fulfilled one of the settled and legally recognised old methods of acquiring title to land. See KUMAGA DAUDA v. IBA (2007) 2 NWLR (Pt. 1018) PAGE 321, TIDI YAZZA & ORS v. JAMES KWAGA & ANOR. (2013) LPELR-22154 (CA), IDUNDUN v. OLUMAGBA (1976) 9 – 10 S.C. 227.
Now on the part of the appellant, in my estimation, he seemed to be seeking for loopholes in the adduced evidence of the Respondent rather than build up his. For instance, he had failed to buttress his
assertion that the res in dispute was community land and that the Udokos are the aborigines in Ondo land, therefore his case would have been helped only if he had complied with the principle of law that. ‘he who asserts must prove’ and of course in an action for declaration of title in a land dispute, it’s a beginner’s course that neither parties can succeed on the weakness of either party’s case but on the strength and merit of their individual case – except, where the evidence of the defendant tends to establish his title and support his case, the plaintiff is then entitled to take advantage of that evidence to establish his title. See POPOOLA v. ADEYEMO (1992) NWLR (PT.257) 1, BANKOLE & ORS. v. PELU & ORS. (1991) 8 NWLR (PT.211) 252.
The Appellant having not satisfied the standard of proof as required, I am also left with no other choice than to dismiss this appeal. I also hereby affirm the judgment of the lower Court. I award no costs.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
CROSS APPEAL: I agree.
?
Appearances
I.O.A AkindugbagbeFor Appellant
AND
Bade Awosunle with him, Thompson AkinyemiFor Respondent
