CHIEF OLANITORO ARUWAJU v. CHIEF ASHOJO OLOTU ASHARA
(2014)LCN/7085(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of April, 2014
CA/AK/158/2012
RATIO
LAND: CIRCUMSTANCE IN WHICH THE BURDEN OF PROVING THE PRECISE AREA OF LAND MAY ARISE
Now, it is the law, that where in a land case, the area of land in dispute as in the instant case is well known to both sides, the issue of proof of it does not arise, as the court cannot possibly reach a conclusion that the area claimed is not certain. See, Osho V. Ape (1998) 8 NWLR (Pt.562) 492 at 495.
Similarly, the burden of proving the precise area of land by the plaintiff will not arise where the identity of the land in dispute was never a question in issue. See, Dada V. Dosunmu (2006) 18 NWLR (Pt.1010) 134, Ogun V. Akinyelu (2004) 18 NWLR (Pt.905) 362, Otanma v. Youdubagha (2006) 2 NWLR (Pt.964) 337.PER MOJEED ADEKUNLE OWOADE, J.C.A.
LAND: WAYS OF ESTABLISHING TITLE OR OWNERSHIP OF LAND
There are five ways of proving or establishing title or ownership of land. These are by traditional evidence, production of documents of title duly authenticated in the sense that their due execution must be proved, by positive acts of ownership extending over a sufficient length of time, by acts of long possession and enjoyment of the land; by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute. And, the law is that the establishment of one of the five ways is sufficient proof of ownership. See: Ayoola V. Odofin (1984) 11 SC 120, Ewo V. Ani (2004) 17 NSCQR 36, Ndukuba V. Izundu (2007) 1 NWLR (Pt.1016) 432, Adanyi V. Anwase (2006) 12 NWLR (pt.993) 183, Nkado V. Obiano (1997) 5 NWLR (Pt.503) 31 at 34, Nkwo v. Iboe (1998) 7 NWLR (pt.558) 354, Chukwu V. Diala (1999) 6 NWLR (Pt.608) 674, Inwelegbu V. Ezeani (1999) 12 NWLR (Pt.630) 266 Adesanya v. Aderounmu (2000) 6 SC (Pt.II) 18, Adeosun V. Jibesin (2001) 14 WRN 106 at 108. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
CHIEF OLANITORO ARUWAJU Appellant(s)
AND
CHIEF ASHOJO OLOTU ASHARA
(suing for himself and on behalf of Ashara family of Igboroko Nla Owo) Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Akintoroye J. delivered on 29th October 2012 at the High Court of Ondo State Holden at Owo.
By writ of summons and statement of claim dated and filed on 12th April 2010, the Respondent as plaintiff in the court below claimed against the Defendant Appellant as follows:
1. Declaration that the plaintiff is entitled to a certificate of statutory Right of occupancy on the land in dispute in this case with an area measuring approximately 123.420 sq. meters situate lying and being at Igboroko Street, Owo, Ondo State with detailed (sic) particulars contained in the Survey Plan No. OD/1255/2010/002 dated 13/01/2010 drawn by Mr. J.I. Olofinte Licensed Surveyor.
2. N500,000 as general damages for the act of trespass of the Defendant on the said plaintiff’s land.
3. Perpetual injunction restraining the defendant by himself, his servants, agents and or privies or otherwise however called from continuing with further acts of trespass on the said plaintiff’s land.
Pleadings were filed and exchanged in the court below.
The pleading of the plaintiff/respondent that the land in dispute formed part of a large expanse of land granted by Olowo Ogija to his son Osengakun though not pleaded by the Defendant/Appellant was admitted in evidence by the Defendant/Appellant.
The Respondent traced his title and that of his Ashara family from Olowo Ogija to Elegba Osengakun through Ajelu and her daughter Olumokunbi who begat Ajigbekunola for Ojomo Oludipe. That Ojomo Oludipe made his son Ajigbekunola, Ashara of Owo. That, Ashara started to live and manage his own family affairs from his maternal house at Igboroko-Nla Owo, while Ajelu his maternal grandfather was controlling the affairs of the rest members of Elegba Osengakun family. That, as time went on, when the land allocated to Ashara was not enough to accommodate his family members, Elegba Osengakun granted another portion of land to Ashara part of which is the land in dispute which extended to the left hand side of Igboroko-Nla Owo when coming from the said Mapo Town Hall.
The respondent pleaded and led evidence of other Ashara family members that built houses on the left hand side of Igboroko-Nla and that the Ashara family has been in exclusive occupation and possession of the land in dispute for over 30 years before now without let or hindrance from the Appellant in particular and members of the public in general.
The Appellant as defendant on the other hand averred that Ifakolade otherwise known as “Aruwaji Alaloun” was among the issues of Osengakun. Also, that Aruwaji was the grandfather of the Appellant. He furthered that some of his ancestors buried on the land include Olafemiwa and Olukoogbe. That, in 1915, Aruwaji Olafemiwa made traditional “Ako” for his Late father Aruwaji Fakolade and the said “Ako” effigy was buried on the disputed land. The Appellant as defendant further tendered Exhibit D-D1, the Extract of a mediation meeting of the Olowo-in-Council which gave the land in dispute to him.
Learned Counsel for the defendant Appellant in his closing address in the court below challenged the jurisdiction of the trial court on the ground that “Ashara family of Igboroko-Nla, Owo” as distinguished from “members of Ashara family” is not a juristic person which renders the suit incompetent and debars the trial court of jurisdiction.
The Respondent as Plaintiff called one witness (PW1) and gave evidence as PW2. The Appellant as defendant gave evidence as DW1 and called two other witnesses.
In a considered judgment, the learned trial judge found that the jurisdictional issue was procedural and not substantive and was not raised timeously. That Exhibit D-D1 has no probative value as it failed to meet the conditions necessary for a binding decision of a native arbitration. He also found the traditional history of the Respondent to be consistent, cogent and reliable. He rejected the traditional history of the Appellant, amongst other reasons that “those facts relating to the original owner of the land, and to whom it was granted by him were not pleaded by the defendant.”
The learned trial Judge nevertheless assumed that even if the two traditional histories were held to be probable but conflicting, the events in recent times tilt in favour of the plaintiff/Respondent under the principle enunciated in the case of KOJO II V BONSIE (1957) 1 WLR 1223.
He concluded that the plaintiff Respondent is entitled to declaration of title on the land in dispute.
Dissatisfied with this judgment, the Appellant filed a Notice of Appeal containing five (5) grounds of appeal in this court on 15/11/2012.
Appellant’s brief of argument dated 21/1/2012 was filed on the same day. Respondent’s brief of argument dated 29/7/2013 and filed on 30/7/2013 was deemed filed on 22/10/2013. The Appellant filed a Reply brief dated 21/1/2014 on 17/2/2014 but was deemed filed on 18/2/2014. Learned Counsel for the Appellant four (4) issues for determination.
They are:
1. Whether the Respondent’s evidence and pleadings in respect of traditional history are so convincing, consistent, cogent conclusive and credible as to entitle him to judgment. (Grounds 3 and 4)
2. Whether trial judge rightly considered the facts or acts exercised by the Respondent in recent years when and if the Respondent had failed to prove the root of title relied upon by him. (Ground 1)
3. Whether the trial court had jurisdiction to entertain and or determine this suit at all. (Ground 5)
4. Whether the Respondent had sufficiently identified the land in dispute as part of his family land so as not to warrant a visit to the locus in quo. (Ground 4)
Learned Counsel for the Respondent adopted the issues formulated by the Appellant.
This appeal will be decided by first considering issue No. 3, which relates to jurisdiction.
I will then treat issues 1 and 2 together because both of them deal with evaluation of evidence and will finally deal with issue No 4. On issue No. 3, Learned Counsel for the Appellant submitted that the Respondent instituted the action for himself and on behalf of Ashara family of Igboroko-Nla, Owo. He has thus sued in a representative capacity. That for an action to be competent, it must be instituted by a person known to law.
Learned Counsel submitted that Ashara family is not a person known to law and as a result this rubbed the trial court of jurisdiction since only a person known to law can sue and be sued.
He referred to Sharon Paint & Chemical Go. Ltd V. Ezenwaku (2001) FWLR (Pt.43) 290
He submitted that the plea of jurisdiction can be raised at any stage even on appeal. He further relied on the case of Shobogun V. Sanni (1974) 4 SC 35 at 40.
Learned Counsel for the Respondent submitted on issue No. 3 that the contention of the appellant is that the action was not properly constituted because the words “members of” were missing in the constitution of the action. That, the appellant stated that as a result, the action was not brought by a juristic person. Counsel submitted that this argument cannot stand as rightly stated and held by the trial judge since it was a call to technicality. This, he said is more so as in paragraph 3 of the claim, the claimant stated as follows:
“The Claimant institute this case for himself and on behalf of the entire members of Ashara family Aro Kingdom, Ondo State”
Learned Counsel argued that the omission of the words “members of” in the face of the suit is irrelevant as the statement of claim had shown that it was for the entire members of the Ashara family. That, the question of non-juristic person does not arise, because the group on which the action was brought was well defined. He submitted further that the objection raised here is one affecting procedural jurisdiction and not substantive jurisdiction. This being the case, it ought to have been raised timeously and not during address stage when it was raised.
After referring on the above point to the cases of Ikpuku V. Ikpuku (1991) 5 NWLR (PT.193) 571 and Busari V. Oseni (1992) 4 NWLR (Pt.1591) 557 at 582, Learned Counsel added that to give consideration to it, is to dwell on technicalities and as the Supreme Court had said, courts ought to determine cases on the merit instead of looking at technicalities. He referred to the cases of Consortium MC V. NEPA (1992) 6 NWLR (Pt.246) 132 at 142, Nishi Zawa V. Jethwani (1984) 12 SC 234 at 279.
Learned Counsel for the Appellant further submitted in his Reply brief that whether procedural or substantive, issue of jurisdiction cannot be overlooked since it can even be raised at any stage, even on appeal. He referred to the case of Oloba V. Akereia (1988) 3 NWLR (Pt.84) 508 at 520.
On the submission that the words “members of’ were included in paragraph 3 of the statement of claim, he submitted that parties’ names as required on writ of summons and statement of claim are different from the requirement of pleadings. Therefore, paragraph 3 of the statement of claim is a pleading which must become mature by evidence being given on it. But, that the complaint in issue 3 relates to absence of parties known to law.
The complaint of the Appellant on issue 3 is that the plaintiff’s representative action as composed did not disclose a juristic person, an irregularity which Counsel has argued goes to jurisdiction. The suit in the court below referred to the plaintiff as “Chief Ashojo Olotu Ashara (suing for himself and on behalf of Ashara family of Igboroko-Nla Owo).
Learned Counsel for the Respondent argued that the absence of “members of” deprived the plaintiff of legal capacity to have instituted the action. I do not agree with this view of the learned counsel for the Respondent. In the first place, in a representative action, both the named plaintiff or defendant and those they represent are parties to the action although the named representative plaintiff or defendant is dominus litus until the suit is determined.
See Ogunyombo V. Okoya (2002) 16 NWLR (Pt.793) 224. In the instant case, the fact that the representing plaintiff (Chief Ashojo Olotu) did not add the words ‘members of’ to the words “Ashara family of Igboroko-Nla Owo”, as those he was representing does not vitiate the suit nor rendered the named plaintiff a non-juristic person. The point taken by the trial judge which formed the subject of this appeal is that the absence of the words “member of” in the composition of the representative capacity of the plaintiff in the suit is at best a procedural irregularity which would have been raised timeously to determine whether or not the court could exercise jurisdiction on the case.
In my humble opinion, the learned trial judge was right when he held at pages 82-83 of the record that “Secondly, the question of competence of this suit was raised by Alaba-Ajire Esq. of counsel for the defendant. It was in his final address that the issue was raised by counsel. What would be the effect of that objection is (sic) if, found to be meritorious? It is strong enough to put an end to the entire suit if the court upholds it. However, for it to succeed, it must be validly raised so that the court might have the opportunity to consider it timeously. That was ‘not done by the defendant in the instant case. It is true that the law says the question of jurisdiction could be raised at any time, even on appeal, but that law has to do with substantive jurisdiction, not procedural or technical jurisdiction. The one in focus in this judgment is procedural, not substantive jurisdiction of court. Waiting till the end of the trial before raising an issue like that would amount to ambushing the party on the other side
Besides, it is now law that court must do substantial justice, and not to be weighed down by technicalities.
See Nishizawa Ltd V. Jeth Wani (1984) 12 S.C 234 at 279, Military Governor of Imo State V. Nwauwa (1997) 47 LRCN 377 at 412, Consortium M.C. V NEPA (1992) 6 NWLR (pt.246) 132 at 142.
I therefore agree with Learned Counsel for the plaintiff that the issue as raised ought to be ignored…”
Now, the term “procedural jurisdiction” is a loose expression for secondary or collateral jurisdiction denoting objections relating to incompetence of an action to be determined before the court can make up its mind as to whether or not it has jurisdiction. In this sense, and as it is in the instant case, jurisdiction comes after the determination of the objection relating to the incompetence of action.
In the instant case, the Defendant Appellant did not timeously raise the issue of the incompetence of the action as not being properly constituted, that issue having not been determined, the matter has not ripen into the question of jurisdiction.
The learned trial judge was right to have ignored an issue which was at best a procedural irregularity raised only at the stage of counsel addresses as affecting the jurisdiction of the court.
Issue No. 3 is resolved against the Appellant.
On issues 1 and 2 Learned Counsel for the Appellant submitted that on page 89, line 4-29 of the record, the trial court held as follows:
“In view of these two traditional histories placed by parties before me, I have asked myself if both are cogent, or whether they are conclusive and complete. I have also asked myself if it would be necessary to resort to applying the principle in KoJo II V. Bonsie (1957) 1 WLR 1223, in view of the two traditional histories…”
And that on page 90 Lines 1 – 4 that,
“In my humble view, there are no conflicts in the traditional histories of the land in dispute as given by parties in this case. The traditional history of the plaintiff is sound and consistent. It is more probable and reliable. No wonder, the defendant’s version of the traditional history agreed with the plaintiff’s in most places…”
On this, Learned Counsel submitted that a plaintiff who relies on traditional history in proof of a claim for declaration of title to land must lead evidence to show that root of title and this includes how his ancestors had come to own the land in the first place and how that land devolved over the years on the claimant’s family until it got to the claimant. He referred to the case of Nkado V. Obiano (1997) 50 LRCN 1084 at 1106.
Learned Counsel for the Appellant pointed out that the plaintiff’s pleadings is not specific as to who was the original owner. That for example in paragraph 8, the land in dispute originally belonged to Elegba Osengakun, but that this averment was changed in paragraph 11 that Olowo Ogeja gave a large expanse of land to his son part of which is in dispute.
Also, that in paragraph 16, Elegba Osengakun granted land to Ashara part of which is in dispute and in paragraph 18 that Ashara family in accordance with their custom granted the land in dispute to the plaintiff in preparation to his ascending the Ashara Chieftaincy stool.
Learned Counsel submitted that PW1 contradicted both himself and the statement of claim when he said in one breadth at pages 32-40 that “at the beginning Elegba Osengakun owned the land in dispute” and at another breadth that “it is true that the land in dispute was granted by Olowo Ogeja to Ashara family”
Learned Counsel submitted on the evidence of PW2 that though he was emphatic that the land in dispute was granted by Elegba Osengakun but that he contradicted himself on page 44 when he said that Ajigbekunola was the first child of Ojomo and he was also the first Ashara of Owo. Plaintiff’s family got the land in Igboroko-Nla because a reigning Ojomo (Priest) traditionally would send any of his sons to his maternal home to live there. Learned Counsel submitted that the first part of the Respondent’s history is that Elegba Osengakun was the grantor to Ashara the Respondent’s progenitor but later Ojomo (Priest) sent the first Ashara to live in Igboroko-Nla which is where the land in dispute is located. The impression here, said Counsel, is that there are two grantors of the land in dispute (that is a prince and a priest) the PW2, he said, has failed to separate the chaff from the wheat as done in paragraph 13 to 16 of the statement of claim.
He argued that a court of law will not help the Respondent to fill the gap. Mere averments in pleadings no matter how impressive they may be are useless if no evidence is led to prove them.
He referred to Adegbite V. Ogunfoalu (1990) 4 NWLR (Pt.146) 578, Balogun V. Amubikahun (1985) 3 NWLR (Pt.11) 27, Obmiami Brick C.B. Ltd v. A.C.B. Ltd (1992) 3 NWLR (Pt.229) 260, Ayeni V. Sowemimo (1982) 5 SC 60, Idesoh V. Ordia (1997) 3 NWLR (Pt.491), 17 Adeyemo V. Ida (1998) 4 NWLR (Pt.546) 504 at 520 – 521.
Learned Counsel submitted that Respondent has failed to plead and prove his root of title by showing where Olowo Ogeja derived his title from and if Olowo Ogeja was the founder of the land, how did he found same.
He submitted that Respondent stated in paragraph 17 of the statement of claim that each Ashara customarily must be allocated a piece of family land to build his house. Respondent did not deem it fit to plead and lead evidence as to names of all the Asharas who are the intervening owners of Ashara family land. That, only two of the Asharas, that is, Ajigbekunola and the Respondent were mentioned.
Learned Counsel submitted that for traditional history to be well pleaded and proved, the particulars of the intervening owners must be given and that evidence of tradition is not the evidence of a year or few years but ancient and immemorial years. The evidence must have endured through generations.
He referred to the cases of Ojoh v. Kamalu (2006) ALL FWLR (Pt.297) 978 at 1006, Achiakpa V. Nduka (2001) FWLR (Pt.71) 1804 at 1829 and Fagge V. Adakawa (2006) All FWLR (Pt.331) 1387 at 1406.
Learned Counsel submitted further that on page 90 of the record, the trial court held that the traditional history of the appellant agrees in most places with that of the Respondent and submitted that in a case of declaration of title to land, the onus is always on the Plaintiff to establish his ownership of the land and satisfy the court that he is entitled on the evidence adduced by him to a declaration of title. He must rely on the strength of his case and not the weakness of the defense.
He referred to the cases of Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 at 530 and Kodinliye V. Mbanefo Odu (1935) WACA 336 at 337. Learned Counsel for the Appellant relied on his submissions on issue 1 in support of issue 2. He submitted further that it is only where both parties had properly pleaded and led credible evidence on the ingredients of traditional history that both histories shall be tested with recent acts of possession.
He submitted that the trial court wrongly held that the Respondent’s facts were more recent than that of the Appellant who said that Ifakolade and Ifadimire were buried on the land in 1910 and 1915 respectively. He further submitted that by cross examination, the Respondent had established the recent acts of the appellant and the appellant was entitled to rely on it.
Appellant’s Counsel reviewed the evidence of PW1 and PW2 and submitted that Appellant’s acts are more recent and certain than Respondent’s acts which are vague and likely to date further than that of the appellant.
Counsel urged us to reject the decision of the trial court that the acts of ownership and enjoyment of the land by the Respondent are more recent than that of the appellant bearing in mind that the Respondent has failed to prove the root of title.
Learned Counsel submitted that where a party’s root of title is pleaded as for example a grant, a sale or conquest etc. that root of title has to be established first, and any consequential acts following there from can then properly qualify as acts of ownership. But, that where the title pleaded has not been proved, it will be unnecessary to consider acts of possession, or recent acts of possession, for the acts would no longer be acts of possession but acts of trespass.
He referred to the cases of Kano V. Maikaji (2011) 17 NWLR (Pt.1275) 139 at 174. The Registered Trustees of the Diocese of ABA v. Helen Nkume (2002) 1 NWLR (Pt.749) 726, Odofin V. Ayoola (1984) 11 SC 72 and Mogaji V. Cadbury (Nig) Ltd (1985) 2 NWLR (Pt.7) 393 at 395.
On issues 1 and 2, Learned Counsel for the Respondent submitted that contrary to the submissions of the Appellant, the Respondent pleaded and gave cogent evidence in support of traditional history. That, in particular, the Respondent pleaded who was the original settler in paragraph 9-11 and also how the original settler got on the land. The pleading showed that Olowo Ogija settled on the land and gave a part to Elegba Osengakun. The Respondent’s family then traced their title to Elegba Osengakun. The pleadings contained in paragraphs 12-16 of the Respondent’s claim was backed by the evidence of PW1 and PW2 who gave details of traditional history which was unbroken, cogent and consistent.
Learned Counsel submitted that the Respondent also pleaded and gave evidence of possession in recent times. Name of tenants put on the land was given in evidence and also what the tenants were doing on the land. Respondent’s Counsel noted that this evidence of possession in recent times was not in any way contradicted by the appellant. That, rather it was agreed to by the Appellant, when he stated inter alia under cross-examination that he was away in Sapele for 30 years.
In contrast, according to Respondent’s Counsel, the traditional history given by the appellant was not cogent and was incapable of challenging that of the Respondent. More so, that the defendant never pleaded the original owner of the land or who granted the land to him. As such, evidence given was disregarded by the court since it is trite that parties are bound by their pleadings.
On this, Counsel referred to the case of Matanmi V. Dada (2013) 4 SCM 120. Furthermore, said Counsel, the appellant did not state who his original ancestor who owned the land was. As a result, he submitted that the rule in Kojo II V. Bonsie (1957) 1 WLR 1223 will not apply. That, indeed, for the rule to apply, the traditional histories must be cogent and conflicting.
He referred to the cases of Mogaji V. Cadbury (1985) 2 NWLR (Pt.7) 393, Matanmi V. Dada (Supra), Eboade V. Atomesin (1997) 5 SCNJ 25. Learned Counsel submitted further that where the histories are not conflicting the court is allowed to believe the strong traditional history and give judgment on it without much ado.
He referred to the cases of Runsewe V. Odutola (1996) 3 SCNJ 32 at 4, Ekeokonkwo V. Okeke (2002) FWLR (Pt.100) 1655. He submitted that the trial judge was right to have given judgment as he did since there was no conflicting traditional histories. What the appellant pleaded was merely how his chieftaincy title devolved on him but pleaded no history that was cogent and unbroken about the land in dispute.
Learned Counsel submitted that assuming without conceding that the traditional histories were in conflict, the court is enjoined in Kojo II V. Bonsie (Supra) to rely on possession in recent times. That, as stated above, the appellant did not give any evidence of possession in recent times but rather stated that he was away in Sapele for 30 years and as such did not know what was happening on the land. On the other hand, said Counsel, the respondent showed by credible evidence how the land had been rented out to tenants for a long time and how a kiosk had been put on the land. Evidence also showed that the respondent had put blocks on the land which were destroyed by the appellant.
Learned Counsel submitted that from the evidence adduced the respondent was able to show evidence of possession in recent times which was also sufficient to found a declaration of title in their favour.
Learned Counsel submitted that the appellant made heavy weather of the fact that reference was made to some acts that occurred in 1910 and 1915 as evidence of his possession in recent times. He submitted that this cannot pass the test of possession in recent times as the Supreme Court has defined possession in recent times to be years outside traditional evidence. These years are definitely not outside traditional evidence and also as such cannot be reliable and the learned trial judge rightly so held. Learned Counsel further submitted that it was erroneous of Appellant’s Counsel to argue that the Respondent’s issue of possession in the last 30 years was not supported by evidence. That, to the contrary, the respondent pleaded and led copious evidence to show possession over the last 30 years. And, that the appellant could not state why he did not challenge the title of the respondent in those years.
It seems to me that there are two misconceptions by the Appellant in relation to issue 1 and 2. The first is the belief of the Appellant that the Respondent as plaintiff did not plead or prove his root of title. The second is the belief that the learned trial judge was obliged to apply the rule in Kojo II V. Bonsie, after finding in favour of the traditional history led by the Respondent and as it were after rejecting the traditional history of the Defendant/Appellant which he found not to be cogent and reliable.
Paragraphs 17 and 18 of the statement of claim merely show how the Ashara family allocated the land in dispute to the head of the family, the Chief Ashara of Owo in preparation for the Ashara Chieftaincy stool.
Before then, paragraphs 8-16 show that the land in dispute was settled on or vested in the then Olowo Ogija who granted a large expanse of land including the land in dispute to Elegba Osengakun who then granted same to the Ashara family.
The paragraphs are reproduced as follows:
8. The land in dispute originally from the onset belonged to Elegba Osengakun whose mother came/migrated from Iburo near the present Idoani in Ondo State.
9. The said Elegba Osengakun was the son of Olowo Ogija who reigned in Owo about 200 years ago while his mother was one Okunmose from Iburo near Idoani.
10. Olowo Ogija had married Madam Okunmose a native of Iburo some years before he became Olowo of Owo
11. The said Olowo Ogija gave a large expanse of land to his son Osengakun part of which formed the land in dispute several years ago.
12. The plaintiff avers that Elegba Osengakun had a son named Ajelu and the said Ajelu begat Olumokunbi (Female) and the said Olumokunbi married Ojomo Oludipe of Ijebu-Owo.
13. The said Olumokunbi begat a son named Ajigbekunola for Ojomo Oludipe who later became the first Ashara of Owo kingdom.
14. Ojomo Oludipe who made his son Ajigbekunola Chief Ashara of Owo later sent back Ajigbekunola to his maternal home in Igboroko-Nla Owo to live there in accordance with Owo native custom and tradition. The plaintiff will at the trial give copious oral evidence of many other families in Owo where the said custom and tradition had been put into use like Arala/Sadibo, Ineren, Owaghalaye and Ologbosere families in Owo.
15. Ashara started to live and manage his own family affairs from his maternal house at Igboroko-Nla, Owo while Ajelu his maternal grandfather was controlling the affairs of the rest members of Elegba Osengakun family.
16. As time went on, when the land allocated to Ashara was not enough to accommodate his family members, Elegba – Osengakun granted another portion of land to Ashara part of which is the land in dispute which extended to the left hand side of Igboroko-Nla Owo when coming from the said Mapo Town Hall.
The above pleading of the Respondent as plaintiff was backed up by the evidence of PW1 and PW2 as they traced the origin of the entire land, part of which is in dispute to Olowo Ogija, who married Okunmose and begat Elegba Osegankun. Olowo Ogija granted part of his land to Elegba Osengakun his son. Elegba Osengakun was succeeded on the land by his son called Ajelu, who begat Madam Olumokunbi. Olumokunbi got married to Ojomo Oludipe of Ijebu-Owo, and they gave birth to Ajigbekunola, who was the first holder of Ashara Chieftaincy title. In line with Owo tradition, Ajigbekunola was sent back to his maternal home (Igboroko-Nla), where part of the land of Elegba Osengakun was granted to him to live. Plaintiff said Ashara Ajigbekunola was his father. It is part of the land granted to Ashara Ajigbekunola that the plaintiff said was granted to him by his family (Ashara) to build his chieftaincy house that is the land in dispute. Meanwhile, the crux of the Respondent’s root of title that is that the piece of land was originally part of the expanse of land belonging to Olowo Ogija and that Olowo Ogija granted part of his land to his son Elegba Osengakun was confirmed in evidence by the Appellant. The picture therefore is that the Appellant agreed to the root of title pleaded and stated in evidence by the Respondent. The law is that where both parties agree that the title to a land in dispute belongs to a common ancestor or vendor, for either side to succeed, he must be able to trace his root of title to the common ancestors or vendors. See Adebo v. Saki Estates Ltd. (1999) 7 NWLR (Pt.612) 525. In the instant case, even though the Appellant agreed to the root of title of the Respondent, only the Respondent was able to trace his root of title to Olowo Ogija through Elegba Osengakun. The Appellant did not plead the origin of the land in dispute.
For this reason, the learned trial judge rightly found that the traditional histories of the parties were not in conflict, that “the traditional history of the plaintiff is sound and consistent. It is more probable and reliable. No wonder, the Defendant’s version of the traditional history agreed with the plaintiff’s in most places. I have highlighted in this judgment, such areas of agreement in the traditional histories given by the parties. Conversely, it cannot be said about the defendant’s history that it is cogent. There are many unexplainable gaps in it. Just to mention few of such gaps (a) The defendant did not plead the origin of the land which is now in dispute_____
There are some questions yet unanswered by the defendant. Who among the ancestor was the original owner of the land? How did the said ancestor derive his title to it? Was it by settlement, or acquisition, or grant_____________
The defendant’s genealogical tree that was painted in the statement of Defense and his evidence on oath, was in respect of chieftaincy titles that were taken by, or conferred on his ancestors, not the devolution of the land from its original owner, down the line to the present generation. There was no shred of evidence adduced with respect to who succeeded who on the land, when, and what the type of right of ownership that he claims to enjoy is. Thus, it is my humble view that it is not necessary to consider the principle in Kojo II v. Bonsie (supra).
Relatedly, the second misconception of the Appellant in relation to issue 2 is the belief that the learned trial judge was indeed obliged to apply the rule in the case of Kojo II V. Bonsie (supra) to the case of the parties in the instance case. This is not true. In this case the application of the principle in the case of Kojo II V.Bonsie (supra) was done by the learned trial judge ex abundante cautella. This is because the traditional histories of the parties were not in conflict and it was not the case that both of their traditional histories were probable.
There are five ways of proving or establishing title or ownership of land. These are by traditional evidence, production of documents of title duly authenticated in the sense that their due execution must be proved, by positive acts of ownership extending over a sufficient length of time, by acts of long possession and enjoyment of the land; by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute. And, the law is that the establishment of one of the five ways is sufficient proof of ownership. See: Ayoola V. Odofin (1984) 11 SC 120, Ewo V. Ani (2004) 17 NSCQR 36, Ndukuba V. Izundu (2007) 1 NWLR (Pt.1016) 432, Adanyi V. Anwase (2006) 12 NWLR (pt.993) 183, Nkado V. Obiano (1997) 5 NWLR (Pt.503) 31 at 34, Nkwo v. Iboe (1998) 7 NWLR (pt.558) 354, Chukwu V. Diala (1999) 6 NWLR (Pt.608) 674, Inwelegbu V. Ezeani (1999) 12 NWLR (Pt.630) 266 Adesanya v. Aderounmu (2000) 6 SC (Pt.II) 18, Adeosun V. Jibesin (2001) 14 WRN 106 at 108.
In the instant case, the learned trial judge having held that the traditional history of the Plaintiff/Respondent was cogent and more probable than that of the Defendant/Appellant satisfied the principle as to the proving of title by one of the five ways of proving or establishing title or ownership of land and did not have to rely on any other means of proof of title or invoke the principle in the case of Kojo II v. Bonsie (supra) in finding for the respondent.
In any case, the evidence of recent possession adduced by the plaintiff respondent that he had been in undisturbed and unchallenged possession of the land in dispute in the preceding 30 years was uncontradicted and unchallenged. It is trite that a court of law is bound to act on the unchallenged and uncontradicted evidence of a party.
See Bello V. Eweka (1981) 1 S.C. 101.
Aigbadion V. State (2000) 7 NWLR (pt. 666) 686 at 702 -703
Kano ile Plc V. G & H (Nig) Ltd (2002) 2 NWLR (pt.751) 420 at 473.
Olohunde & Anor V. Adedoyin (2000) 10 NWLR (Pt.676) 562 at 589
Accordingly issues 1 and 2 are resolved against the Appellant. On issue No. 4, Learned Counsel for the Appellant submitted that the Respondent pleaded and led evidence that the land in dispute is located at Igboroko-Nla in Owo and survey Plan No. OD/1255/2010/002 was tendered in support. Also, that in proving his case, the Respondent at page 43 stated only two boundaries instead of four. He submitted that the trial court should have visited the locus in quo to ascertain whether or not the land in dispute forms part of Respondent’s land or appellant’s land.
That the survey plan tendered from the bar is not enough to determine on whose land the land in dispute falls.
Learned Counsel for the Appellant concluded this aspect of his submission by referring to the case of Oluwole V. Abubakere (2001) 10 NWLR (Pt.882) 549 at 568 that where there is doubt as to the veracity of the testimony of witnesses on the physical evidence located on the land in dispute it constituted sufficient reason to visit the locus in quo.
In reply to issue 4, Learned Counsel for the respondent submitted that the appellant in this case did not raise the issue of visit to locus in quo in the lower court. That, as a result, the appellant is raising a fresh issue and he has not sought the leave of the court to do so. He referred to the cases of LSDPC v Foreign Insurance (1987) 1 NWLR (pt.50) 413, MOGAJI v. Cadbury (1985) 2 NWLR (Pt.7) 393 and UBA V. BTL (2005) FWLR (Pt.263) 611 and urged us to strike out the ground of appeal on which issue No. 4 is based.
Learned Counsel further submitted that both parties knew the land in dispute, that there was no dispute as to the identity of land and that the appellant did not invite the court to visit the locus nor was there any issue as to features on the land. Counsel submitted that it is only if there was a dispute as to features on the land or location of the land that a visit to the locus, would be necessary. He referred to the cases of Ipinlaiye V. Olukotun (1996) 6 SCNJ 78 and Nwankpu V. Ewulu (1995) 7 SCNJ 197 and urged that the issue be resolved against the appellant.
In the instant case, there was no dispute as to the identity of the land in dispute. Indeed, one of the points of agreement between the parties from the pleadings and evidence is that the land in dispute is located at Igboroko-Nla.
Now, it is the law, that where in a land case, the area of land in dispute as in the instant case is well known to both sides, the issue of proof of it does not arise, as the court cannot possibly reach a conclusion that the area claimed is not certain. See, Osho V. Ape (1998) 8 NWLR (Pt.562) 492 at 495.
Similarly, the burden of proving the precise area of land by the plaintiff will not arise where the identity of the land in dispute was never a question in issue. See, Dada V. Dosunmu (2006) 18 NWLR (Pt.1010) 134, Ogun V. Akinyelu (2004) 18 NWLR (Pt.905) 362, Otanma v. Youdubagha (2006) 2 NWLR (Pt.964) 337.
In the instant case, the question of visiting the locus in quo does not arise. This is not only because the parties are agreed as to the identity of the land in dispute but also because none of the parties deemed it necessary to invite the court to visit the Locus in quo.
In Ipinlaiye V. Olukotun (1996) 6 SCNJ 78, the Supreme Court held that it is preferable, that a visit to the Locus in quo must be on the application of one or both parties. The parties are agreed as to the land in dispute and there was nothing presented in the case that warranted a visit to the locus in quo. The learned trial judge was not wrong not to have visited the locus in quo.
Issue No.4 is resolved against the appellant.
Having resolved the four (4) issues in this appeal against the appellant, the appeal lacks merit and it is accordingly dismissed. There shall be N30,000 (Thirty Thousand) Naira costs in favour of the Respondent.
SOTONYE DENTON WEST, J.C.A.: I have read in advance the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA, and I agree entirely with his reasonings and conclusions.
I wish to emphasize that the basis for a visit to locus in quo would arise only when there is conflicting evidence as to physical facts which the trial Judge is expected to resolve using his own observation at the locus in quo. See: Olubade vs. Salami (1985) 2 NWLR (pt. 7) 282; Niger Construction Ltd. vs. Okugbeni (1987) 4 NWLR (pt.67) 787; Edigun vs. Ovbiagbonhia (1993) 5 NWLR (Pt.293) 367; Shell Petroleum Development Co. vs. Farah & Ors. (1995) 3 NWLR (Pt.382) 148 @ 183. In the case of Seismograph Service vs. Akporoovo (1974) 9 NSCC 308 @ 316, the Supreme Court per Sowemimo, JSC held thus:
“We are in complete agreement with the learned counsel for the appellants that the evidence of plaintiff did not establish the liability, if any of the appellant company. This in our view is a case where the learned trial Judge ought to have visited the locus in quo in view of the conflict in the evidence of the parties. We are satisfied, that on the conflict of evidence before him, it was necessary that the conflicting issues should be resolved by a visit to the scene.”
It seems to me that one can safely say that there is no conflicting evidence as to the physical identity of the land in dispute between the parties. It is on record that both parties agreed that the land in dispute is located at Igboroko Nla, Owo. This must have informed why none of the parties saw any need to invite the trial Judge to visit the locus in quo.
In any case, the argument of the appellant in Issue 4 that the failure of the learned trial Judge to visit the locus in quo had resulted in weakening their case and thereby occasioned miscarriage of justice is of no moment because was the appellant of a strong view that a visit to locus in quo would have strengthened his case, it was the duty of their counsel to have applied during trial that the court undertake a visit to the locus in quo. This the learned counsel for the appellant did not do and ipso facto must not be heard to accuse the learned trial Judge of refusing to visit locus in quo when no application to that effect was made by either of the parties. See: Onigbede & Ors. Vs. Balogun & Anr. (1998) 1 NWLR (Pt.535) 643 @ 660.
The Black Law dictionary, 8th edition at page 959 defined the word “locus in quo” as follows:
“The place where something is alleged to have occurred.”
An application for visit to locus in quo can be made by any of the parties or by the court suo motu. And it will only be necessary where they are grey areas in the evidence led by the parties as to the identity of the land in dispute that needs to be cleared by the said visit. When there are no grey areas as to the identity of the land in dispute, application for a visit to locus in quo would amount to an abuse of court process.
On the whole, I too dismiss this appeal as lacking in merit. I abide by all orders made in the lead judgment, including orders as to cost.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was opportuned to read before now the lead judgment of my learned brother OWOADE, JCA. In the writ of summons and statement of claim, the respondent as plaintiff at the lower court made claims for declaration, damages for trespass and perpetual injunction against the defendant herein the appellant.
Issues of jurisdiction are so sensitive and so basic that it ought not to be raised carelessly and without due regard for the interest of justice. It is trite that jurisdiction strikes at the root of any cause or matter. Hence, any decision reached without jurisdiction no matter how painstakingly arrived at would come to naught at the end of the day. It therefore becomes necessary that any perceived jurisdictional flaw should be raised timeously and without any intention to overreach. See Emerald Engineering Services Ltd. & Anor. vs. Intercontinental Bank plc. (2010) LPELR-19782(CA).
In view of the gravity of its effect, the law has taken time to draw a distinction between substantive irregularities which are capable of overturning a trial no matter how well conducted and irregularities which merely touch on procedure and as such can be regularized once detected, more so when raised at the earliest opportunity.
That the plaintiff/respondent at the Lower Court missed out the word “members of’ from the “Ashara family of Igboroko nla Owo” on whose behalf he had sued is of no moment in this case. The “Ashara family” is obviously and without equivocation made up of “members” given that an individual cannot form a family. Thus, the omission of the words “members of” does not in any way remove from the fact that Chief Ashojo Olotu Ashara was suing for himself and on behalf of the members of Ashara family and that they can sue or be sued as such. This omission to my mind is a puerile procedural irregularity which was rightly ignored by the learned trial Judge. If I may ask, if not aimed at overreaching why did the learned counsel for the appellant have to wait till the stage of final address before raising same in his said final address at the lower court.
For this and the more elucidating reasoning and conclusion reached herein by my learned brother, I too shall dismiss this appeal and it is so dismissed for lacking in merit.
I abide by the consequential order as made in the lead judgment.
Appearances
Oladele AyoolaFor Appellant
AND
Bamidele SalewonFor Respondent
