CHIEF SARAFA OYELADE V. PA DANIEL ILUPEJU & ORS
(2011)LCN/4998(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of December, 2011
CA/I/163/2007
RATIO
BURDEN OF PROOF: WHETHER THE BURDEN OF ESTABLISHING THE IDENTITY OF THE LAND IN DISPUTE RESTS ON THE PLAINTIFF; WAYS BY WHICH A CLAIMANT CAN PROVE THE IDENTITY OF THE LAND
It is trite law that the burden is on the plaintiff claiming title to a piece of land to establish by credible evidence the identity of the land he claims. See Ezeukwu V. Ukachukwu (2004) All FWLR (Pt 224) 2137: “In an action for declaration of title to land, the onus is on the plaintiff to establish with certainty the identity of the land in dispute to which his claim related. This, he can do in one of two ways, viz, by oral evidence describing with such degree of accuracy the said parcel of land in a manner that will guide a surveyor in producing a survey plan of the said land. See Baruwa v. Ogunsola (1938) 4 WACA 159. Another way and perhaps a better way of proving the identity and extent of the land are by the claimant filing a survey plan reflecting all the features of the land and showing clearly the boundaries. See Awole V. Owodunni (No 2) (1987) 2 NWLR (Pt.57)367” Per Edozie JSC @ 2152 F-G.PER CHINWE E. IYIZOBA, J.C.A
PROOF OF TITLE: WHAT IS REQUIRED TO BE PROVED IN AN ACTION FOR DECLARATION OF TITLE WHEN THE BOUNDARY IS IN DISPUTE
In the case of Omoregie V. Idugiemwanye (1985) 2 NWLR (Pt.5) 41, the Supreme Court held that in an action for declaration of title when the boundary is in dispute, the boundary that need to be proved is that which is on the side of the dispute. Where only the boundary is in dispute and the identity of the land and the accuracy of the plan is not in dispute, the plaintiff need not establish the features on the land in dispute and all the boundaries of such land save boundary on the side in dispute. In the instant case, the boundary is not in dispute. PER CHINWE E. IYIZOBA, J.C.A
ORDER 4 RULE 1 OF THE COURT OF APPEAL RULES 2007/2011 AND SECTION 15 OF THE COURT OF APPEAL ACT: INTERPRETATION OF ORDER 4 RULE 1 OF THE COURT OF APPEAL RULES 2007/2011 AND SECTION 15 OF THE COURT OF APPEAL ACT AS REGARDS THE COURT OF APPEAL HAVING ALL THE POWERS OF THE HIGH COURT
Order 4 rule 1 of the Court of Appeal Rules 2007 or 2011 provides that: “In relation to an appeal, the court shall have all the powers and duties as to amendment and otherwise of the High Court…” Section 15 of the Court of appeal Act provides: “The Court of appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the court of appeal as court of first instance and may re-hear the case in whole or in part…” The above provision of the Court of Appeal Act was exhaustively interpreted by the Supreme Court in the case of Inakoju V. Adeleke (supra). It was therein stated that by virtue of the said provision, the Court of Appeal has all the powers of the trial court that is the powers the High Court has in the matter before it. The court can in order to settle completely and finally the matters in controversy between the parties to an appeal and in order to avoid multiplicity of legal proceedings grant all such remedies as any of the parties may appear to be entitled to. The Supreme Court further stated that a party will be entitled to such remedy only after a claim to it has been plainly made out though not formally claimed and dealt with according to the relevant principles governing such a claim if it has been formally made, I am of the view that Section 15 of the Court of appeal Act gave this Court wide powers to enable it make orders which the High Court would have made in a matter. The powers are however not unlimited. The limits of the power are to be determined in the light of the peculiar facts of each case as there are no general propositions laid down. Although the respondents did not file a respondent’s notice under Order 9 rule 1 of the Court of Appeal Rules to vary the judgment, the variation required is so minute and inconsequential given the circumstances of the error that this seems a good case for the invocation of the Section. PER CHINWE E. IYIZOBA, J.C.A
PROOF OF TITLE: DUTY UPON A PARTY WHERE IN A LAND DISPUTE HE PLEADS AND TRACES THE ROOT OF HIS TITLE TO A PARTICULAR PERSON OR FAMILY
In Nwadiogbu V. Nnedozie (2000) FWLR (Pt. 61)-1625 @ 1638 A – B, Iguh JSC observed: “Once in a land dispute a party pleads and traces the root of his title to a particular person or family, that party to succeed must establish how that person or family derived his title or its title to such land. In other words, that party must not only plead and establish his title to the land; he must also plead and prove the title of the person from whom he derived his alleged ownership of the land in dispute…” PER CHINWE E. IYIZOBA, J.C.A
TITLE TO LAND: WHETHER A PARTY NEED TO PLEAD AND PROVE MORE THAN ONE OF THE FIVE WAYS BY WHICH TITLE TO LAND MAY BE PROVED TO SUCCEED IN ACTION FOR DECLARATION OF TITLE TO LAND
The respondents to succeed need not plead and prove any more than one of the five ways or methods. See Ebe, Ebe Uka V. Chief Kalu Okorie Irolo (2002) FWLR (Pt. 127) 1167 @ 1191- 1192 Per Ogundare JSC (of blessed memory): “…A party claiming declaration of title to a statutory or customary right of occupancy to land needs not plead and prove any more than one of the five methods by which title to land may be proved to succeed. It must however be stressed that if as is sometimes the case, the claimant pleads and/or relies on more than one method to prove his title, he merely does so ex abundante cautela as proof of one single root of title is sufficient to sustain a plaintiff’s claim for declaration of title to land.” PER CHINWE E. IYIZOBA, J.C.A
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
Chief Sarafa Oyelade
(For himself and on behalf of Ejemu Family of Ejigbo) Appellant(s)
AND
1. Pa Daniel Ilupeju
2. Pa Amos Ilupeju
3. Shittu Ilupeju
4. Tayo Ilupeju
(For themselves and on behalf of other Members of Ilupeju family) Respondent(s)
CHINWE E. IYIZOBA, J.C.A (Delivering the Leading Judgment): This is an appeal by the defendant/appellant against the judgment of O. A. Ojo J. of the High Court of Osun State sitting at Ejigbo delivered on the 27th day of October, 2005. In their amended writ of summons the plaintiffs/respondents claimed as follows:-
(i) A declaration that the plaintiffs are the persons entitled to the statutory right of occupancy of All that parcel of land situate and being at Oke-Ogun area along Ijado Road, Ejigbo Local Government of Osun State which land is shown on survey plan No. OS/0823/98/D/008 drawn by O.K. Oluokun Registered surveyor dated 28th day of April, 1998 and thereon edged yellow.
(ii) N5000 000.00 (Five hundred thousand naira only) damages for trespass committed on the said land on or about the 8th day of April, 1987 and still being committed when the defendant, his agents and/or servant wrongfully entered the said land for the purpose of harvesting palm fruits and destroying/damaging farm products belonging to the members of the plaintiffs’ family.
(iii) Injunction restraining the defendants, his privies, agents and/or servant from further trespass on the said land or any part thereof.
Pleadings were filed and exchanged, viz amended statement of claim and amended reply to the statement of defence both dated and filed on 26/1/04. Further amended statement of defence dated 28/1/04 and filed on 3/2/04
The respondents’ case at the lower court as can be deduced from their pleadings at page 6-13 of the record is that they have been owners of the land in dispute from time immemorial when their ancestor Ogunsosin settled thereon; that their ancestor, Ogunsosin migrated from Otamokun and settled on the land in dispute; that both Ogunsosin (respondents’ ancestor) and Ogunyori (appellant’s ancestor) were brothers and both migrated from Otamokun and settled on different parcels of land adjacent to each other separated by the ‘Ose’ river which formed a natural boundary between them putting the Respondents’ land to the South and the appellant’s to the North; that since the settlements, both descendants of Ogunsosin (respondents) and descendants of Ogunyori (appellant have always been in exclusive possession of their respective parcels of land without let or hindrance from either side nor from outsiders. Since the settlement, the descendants of Ogunsosin (respondents) exercised rights of ownership on the land in dispute which included planting of various cash crops, giving out portions of the land to tenants, extraction and smelting of iron with its relics evident on the land. Acts of ownership within living memory include the grant of part of the land in dispute to Ejigbo Muslim community to use as Muslim cemetery and another portion to AUD Primary School in recognition of which a school house was named after the respondents’ family (Ilupeju House). The respondents claimed that this suit was instituted because of false claim of ownership of the land in dispute and several acts of trespass thereon by the appellant in 1997 such as attempts to harvest palm fruits, illegal and wrongful allocation of portions of the land to some unsuspecting individuals, prevention of the respondents family members from continuing to farm on the land and illegal destruction of farm produce on the land.
The appellant’s case on the other hand is that the land in dispute forms part of a larger area of land granted to and put in care of the appellant’s family (holding the Chieftaincy title of Ejemu of Ejigbo) by the Ogiyan of Ejigbo. The said land he claimed was originally granted to and put in care of their original ancestor, Ogunniran Mokumo (who migrated from Otamokun) by Ogiyan Ondoye over 300 years ago. With the consent of Ogiyan of Ejigbo, the appellant’s family made grants to several persons including the respondents’ family members for farming and other uses and collected tributes from them. The appellant alleged that the respondents were tenants on the land and that Ogunsosin was not their ancestor but was one of the past Ejemu of Ejigbo just like Ogunyori. They claimed that members of their family also farm on the land and carry out iron smelting at “Orota.” The appellant denied that the respondents’ ancestor came from Otamokun. He claimed he came from Konifin and arrived Ejigbo several years after Akinjole founded Ejigbo.
In proof of their case, the plaintiffs/respondents called six witnesses while the defendant/appellant called eleven witnesses. The Learned Trial Judge after the evidence and addresses of counsel delivered judgment on 27/10/05 in favour of the plaintiffs/respondents. Dissatisfied with the decision, the appellant filed a notice of appeal containing only the omnibus ground on 1/11/05. The appellant subsequently filed an amended notice of appeal with 7 additional grounds of appeal.
From the seven grounds of appeal, the appellant distilled three issues for determination as follows:-
1. Whether the respondents led cogent and credible evidence to identify the land in dispute with definite certainty to be entitled to declaration of title (Grounds 2 and 3)
2. Whether the respondents established the root of title of Ilupeju in whose name they sued in a representative capacity to be entitled to declaration of title (Grounds 4 and 5)
3. Whether the pieces of evidence proffered by the respondents were cogent and credible enough to support the findings/decision of the learned trial Judge that the respondents were entitled to the relief sought (Grounds 1 and 6)
The Respondents on their part formulated only one issue for the determination of this appeal viz:
“Whether, based on the pleadings and evidence led, the respondents have proved their claim to ownership of the land in dispute on the balance of probability and therefore entitled to their claims.”
In his brief at pages 7-9 Awoniyi Alabi Esq. learned counsel for the respondents argued a preliminary objection, notice of which was dated and filed on 29/4/11. Learned Counsel raised objection to the competence of Grounds 4 and 5 of the grounds of appeal and the appellant’s issue (ii) distilled there from. The contention of learned counsel is that the parties did not at the lower court join issues on the capacity in which the respondents instituted the action. Counsel submitted relying on several authorities that parties are bound by their pleadings and that any evidence led by any of the parties which is at variance with the pleadings goes to no issue and should be disregarded by the court. Curiously, the argument of counsel is that the parties did not join issues on Ilupeju’s title and that since it was a fresh issue, the appellant could not raise it at the appeal stage without first seeking and obtaining the leave of the court. Learned Counsel consequently prayed the court to strike out grounds 4 and 5 of the grounds of appeal and also to discountenance the profuse and lengthy submissions on issue 2 distilled from the said grounds 4 and 5.
It is necessary at this point to set out in full grounds 4 and 5 of the grounds of appeal with their particulars.
Grounds 4: Error in Law
The learned trial judge erred in law when he concluded that:
“…. The case put forward by the plaintiffs of ownership of the land in dispute by act of settlement is more probable and credible than the story of the defendant that the plaintiffs are tenants on the land” when it is not in the plaintiffs evidence of traditional history that Ilupeju, the immediate or direct ancestor of the plaintiffs in this suit, settled (sic) the land in dispute
Particulars of error
1. The plaintiffs copiously pleaded in their statement of claim and equally led evidence that Ogunsosin settled upon and occupied the land in dispute from time immemorial and that his descendants have since remained in successive possession of same.
2. The pleadings and evidence of the plaintiffs do not contain any information on how Ilupeju or his direct descendants acquired the land in dispute.
Ground 5: Error in Law the Learned trial judge erred in law (sic) for granting the plaintiffs declaration of title to the land in dispute despite the fact that no iota of evidence was led to prove the root of title of Ilupeju and his family on whose behalf they sued in representative capacity.
Particulars of Error
i. According to the plaintiffs in their pleadings and evidence before the trial court Ogunsosin, their original ancestor first settled upon the land in dispute.
ii. The said Ogunsosin had a number of children and descendants generally among who are Ilupeju and his own direct descendants.
iii. There is no evidence of partition of the land settled by Ogunsosin among his children or grand children or great grand children or descendants generally.
iv. From the pleadings and evidence of the plaintiffs, Ilupeju was a great-great grand child of Ogunsosin while the plaintiffs are Ilupeju’s direct descendants but how Ilupeju acquired title in the land in dispute (on which no evidence of partition or grant is led) has not been explained.
From these two grounds 4 and 5 the appellants distilled issue No 2 … whether the respondents established the root of title of Ilupeju in whose name they sued in a representative capacity to be entitled to declaration of title.
In his reply brief Prince Adesoji Olaoba Efuntayo Esq. Learned Counsel for the appellant rightly submitted that the appellant is not contesting the capacity in which the respondents instituted their action but contends that the root of title of Ilupeju in whose name the respondents are claiming ownership of the land in dispute was not established at the trial court. This, Counsel argued is a fundamental principle of law and is not a fresh issue on appeal requiring the leave of the court.
Mr. Olaoba Efuntayo is correct and I am in total agreement with him. The respondents sued for themselves and on behalf of other members of Ilupeju family. Their contention is that the land in dispute belongs to the Ilupeju family. Issue 2 distilled from grounds 4 and 5 of the grounds of appeal is whether the respondents established the root of title of Ilupeju.
This clearly has nothing to do with the capacity in which the respondents sued. The Respondent’s Counsel with all due respect is clearly in grave error in his contention that the parties did not join issue on Ilupeju’s title. What then was the case all about? The respondents as members of the Ilupeju family are claiming title to the land in dispute. How can it be argued that issues were not joined on Ilupeju’s title to the land in dispute? Mr. Alabi is wrong. The title of the Ilupeju family is very much a fact in issue in the case. The preliminary objection lacks merit.
It is hereby dismissed.
The appellant did not formulate any issue in respect of ground 7 of the grounds of appeal. It is consequently deemed abandoned.
The sole issue formulated by the respondents is very well covered in the appellant’s three issues. I shall determine this appeal on the appellant’s three issues.
Issue No 1
Whether the Respondents led cogent and credible evidence to identify the land in dispute with definite certainty to be entitled to declaration of title.
The contention of Prince Olaoba-Efuntayo for the appellants is that the respondents failed to lead cogent credible and unequivocal evidence as to the identity of the land on which they sought declaration of title. He submitted that the evidence of PW1 surveyor Oluokun Olafunji who prepared the respondents survey plan Exhibit P1 was at variance with the averments in the amended statement of claim.
Further, that the survey plan Exhibit P1 showed Ika community as one of the boundary men but failed to show the boundary men to the West, North and South of the land; and finally that none of the witnesses called by the respondents identified Exhibit P1 nor led evidence to identify the features contained therein. Learned Counsel referred to and quoted extensively from a plethora of decided cases including Equkwu v Ukachukwu (2004) All FWLR (pt.224) 2137 @ 2152 F – G Ogedengbe v. Balogun, (2007) All FWLR (pt 966) 65 @ 638 B-D on identification of the land in dispute.
In his reply brief Mr. Alabi for the respondents, after referring to the features in the respondents survey plan Exhibit P1 and the appellant’s survey plan Exhibit D1 submitted that the parties, contrary to the contention of the appellants are ad idem on the identity of the land in dispute. He submitted that both sides are agreed from their survey plans on the exact area in dispute. Counsel however conceded that PW1, the respondent’s surveyor admitted under cross-examination that the area claimed by the plaintiffs (respondents) in the survey plan is the area verged blue (which is correct) whereas relief No 1 in the respondents amended statement of claim stated that the area claimed by the plaintiffs is verged yellow and that the learned trial judge gave judgment for the respondents on the area verged yellow in Exhibit P1. Counsel submitted that since both the areas verged blue and yellow are one and the same and of the same measurement … 73. 553 hectares that the description of the area claimed by the respondents in the amended statement of claim as being yellow instead of blue is a mere slip which this court can rectify by virtue of order 4 rule 1 of the court of appeal Rules 2007 and under section 15 of the Court of Appeal Act by way of amendment so that the judgment in favour of the respondents would be on the area verged blue instead of yellow in Exhibit P1. Counsel relied on the cases of Jadesinmi v. Okotie – Eboh (1986) I NWLR (pt. 16) 264 @ 274. 276 Oshotoba v. Alhaji Amuda and Ors (1992) NWLR (pt 250) 699 @ 708, Inajoku v. Adeleke (2007) 4 NWLR (pt) 1025 SC 423 @ 613.
Learned Counsel referred to the case of Omoregeie v. Idugie – Wanye (1985) 2 NWLR (pt 5) 41 and submitted that the respondents by the oral description of the land in dispute and their survey plan Exhibit P1 discharged the onus of establishing with definitive certainty the identity and extent of the land claimed. He urged us to hold that the profuse arguments in the appellants’ brief on this issue are baseless and irrelevant.
It is trite law that the burden is on the plaintiff claiming title to a piece of land to establish by credible evidence the identity of the land he claims. See Ezeukwu V. Ukachukwu (2004) All FWLR (Pt 224) 2137:
“In an action for declaration of title to land, the onus is on the plaintiff to establish with certainty the identity of the land in dispute to which his claim related. This, he can do in one of two ways, viz, by oral evidence describing with such degree of accuracy the said parcel of land in a manner that will guide a surveyor in producing a survey plan of the said land.
See Baruwa v. Ogunsola (1938) 4 WACA 159. Another way and perhaps a better way of proving the identity and extent of the land are by the claimant filing a survey plan reflecting all the features of the land and showing clearly the boundaries. See Awole V. Owodunni (No 2) (1987) 2 NWLR (Pt.57)367” Per Edozie JSC @ 2152 F-G.
The respondent herein filed a survey plan Exhibit P1. The surveyor who made the plan testified as PW1. His evidence is at page 18 of the record of appeal. He testified that the area claimed by the plaintiff verged blue is 73.553 hectares and that the area claimed by the defendant verged yellow is quantitatively also 73.553 hectares. He testified that the area granted to AUD Primary School by Pa Yusuf Ayandiwin Ilupeju verged green is 1.451 hectares while the area granted to the Muslim community by Pa Ilupeju verged brown is 1.210 hectares. He testified that the land and fixtures were shown to him by the Plaintiffs. Under cross-examination he admitted that in the plan he showed only the Ika community as boundary men. The respondents consequently clearly identified the area they are claiming by the survey plan Exhibit P1. One of the complaints of the appellants is that only one boundary man was identified in the survey plan – the Ika community and that the other boundary men to the West, North and South were not identified. In the case of Omoregie V. Idugiemwanye (1985) 2 NWLR (Pt.5) 41, the Supreme Court held that in an action for declaration of title when the boundary is in dispute, the boundary that need to be proved is that which is on the side of the dispute. Where only the boundary is in dispute and the identity of the land and the accuracy of the plan is not in dispute, the plaintiff need not establish the features on the land in dispute and all the boundaries of such land save boundary on the side in dispute. In the instant case, the boundary is not in dispute.Contrary to the claim of appellant’s counsel in his address that the parties to are not ad idem on the identity of the land in dispute, the pleadings, evidence led and the survey plans tendered by the two sides show that there is no dispute whatever on the identity of the land. The parties are in fact ad idem as to the identity of the land in dispute. The appellant’s survey plan is Exhibit D1 while the respondents’ survey plan is Exhibit P1. In the appellant’s exhibit D1 the area claimed by the Plaintiffs (respondents) verged red is 73.553 hectares exactly the same as in the respondents Exhibit P1. In Exhibit D1, the area in dispute verged green is 73.553 hectares exactly the same as in the respondents’ exhibit P1. It is clear therefore that the appellants and the respondents are agreed or are ad idem on the exact area in dispute. It was unnecessary therefore that the respondents should have shown other boundary men in the survey plan or led evidence of such boundary men. Further as submitted by learned counsel for the respondents, the appellant did not join issues with the respondents in respect of any of the features shown on their survey plan. See Adesanya V. Aderonmu (2000) 9 NWLR (Pt. 672) 3702
“This onus on the plaintiff to establish with definitive certainty the precise identity and extent of the land he claims may also be discharged by filing and tendering before the trial court, an accurate survey plan of the land…Where the defendant is desirous of joining issues with any aspect of the plaintiff’s survey plan in respect of the land in dispute, he must be quite clear and specific on the points in controversy as a mere general traverse will not do. In other to raise an issue of fact, whether with regard to the averments pleaded in a plaintiff’s Statement of claim or in respect of matters reflected in his survey plan, there must be a proper traverse. ” Per Iguh JSC @ 387 A – C.
I have closely scrutinized the further amended statement of defence of the appellants at pages 14-17 of the record of appeal. There was no traverse of any kind in respect of any aspect of the respondents’ survey plan. What this means is that neither the accuracy of the survey plan nor the identity of the land was made an issue in the case. The respondents were therefore under no obligation to prove the boundaries of the land and the features thereon as these being uncontroverted and not in issue must under the circumstances be treated as established. Adesanya V. Adereonmu (supra).
The only issue with respect to the respondents’ survey plan is that the surveyor PW1 testified that the area claimed by the plaintiffs (respondents) is the area verged BLUE in the survey plan (which is correct). But relief 1 in the respondents’ amended statement of claim states that the area claimed by the plaintiffs is verged YELLOW and the learned trial Judge gave judgment for the respondents on the area verged YELLOW in exhibit P1.
Learned counsel for the respondents in his brief submitted that no harm was caused to the respondents’ case by this slip because both areas verged BLUE and YELLOW in the survey plan are one and the same and of the same measurement: 73.553 hectares. Counsel further opined that the matter is made simpler by the fact that the same area verged blue and yellow in the respondents’ survey plan Exhibit P1 is exactly the same as the area verged RED and GREEN in the appellant’s survey plan Exhibit D1, Counsel then submitted that the incident is a mere slip which this Court can cure by virtue of Order 4 rule 1 of the Court of Appeal Rules, 2007 and under its general powers in Section 15 of the Court of Appeal Act, 2004 by way of amendment and to award the judgment to the respondents on the area verged BLUE, instead of YELLOW in Exhibit P1. Counsel called in aid the cases of Jadesimi V. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264 @ 274; 276. Oshotoba V. Alhaji Amuda & Ors (1922) NWLR (Pt. 250) 690 @ 708 or (1992) 7 SCNJ 317. Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423 @ 613 C – F. 655, E – F. 707 F – H.
Prince Olaoba-Efuntayo for the appellants in his reply brief submitted that the respondents cannot at this stage of appeal urge the honourable court of Appeal to invoke section 15 of the Court of appeal Act 2004 and order 4 Rule 1 of the Court of Appeal Rules 2007 to amend the so called slip in their amended statement of claim pertaining to the description or identity of the land in dispute. Counsel argued that such an amendment would not only be overreaching and mala fide but also amount to changing the essence and substance of appeal on which issues have been joined. He cited the cases of Nkoro V. Azuru (2009) FWLR (Pt. 496) 1951 @ 1959 – 1960 C-D: Ibrahim V. Dailey (2009) All FWLR (Pt. 494).1576 @ 1580 E – F.
Order 4 rule 1 of the Court of Appeal Rules 2007 or 2011 provides that:
“In relation to an appeal, the court shall have all the powers and duties as to amendment and otherwise of the High Court…”
Section 15 of the Court of appeal Act provides:
“The Court of appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the court of appeal as court of first instance and may re-hear the case in whole or in part…”
The above provision of the Court of Appeal Act was exhaustively interpreted by the Supreme Court in the case of Inakoju V. Adeleke (supra). It was therein stated that by virtue of the said provision, the Court of Appeal has all the powers of the trial court that is the powers the High Court has in the matter before it. The court can in order to settle completely and finally the matters in controversy between the parties to an appeal and in order to avoid multiplicity of legal proceedings grant all such remedies as any of the parties may appear to be entitled to. The Supreme Court further stated that a party will be entitled to such remedy only after a claim to it has been plainly made out though not formally claimed and dealt with according to the relevant principles governing such a claim if it has been formally made, I am of the view that Section 15 of the Court of appeal Act gave this Court wide powers to enable it make orders which the High Court would have made in a matter. The powers are however not unlimited. The limits of the power are to be determined in the light of the peculiar facts of each case as there are no general propositions laid down. Although the respondents did not file a respondent’s notice under Order 9 rule 1 of the Court of Appeal Rules to vary the judgment, the variation required is so minute and inconsequential given the circumstances of the error that this seems a good case for the invocation of the Section. The area verged blue and yellow in the respondent’s survey plan Exhibit P1 are exactly the same parcel of land. The parcel of land is also exactly the same as the parcel of land verged red and green in the appellants’ survey plan Exhibit D1. The error in the further amended statement of claim clearly occurred because the parcel of land is the same and was verged blue and yellow at the same time. It is a slip which would have been readily amended by the lower court if its attention had been called to it. The appellant will suffer no injustice or miscarriage of justice if the amendment is made by this court. On the contrary it will be unjust and a complete miscarriage of justice on the side of the respondent if the slip is not remedied. These days the courts lean in favour of substantial justice. The error is hereby accordingly amended. I order that the word “YELLOW” in the last line of relief (i) as granted by the trial Judge be deleted and replaced with the word “BLUE”. The relief shall now read “A declaration that the plaintiffs are the persons entitled to the statutory right of occupancy of ALL THAT PARCEL OF LAND situate and being at Oke-Ogun area along Ijado Road, Ejigbo Local Government of Osun State which land is shown on a survey plan No. OS 082398D008 drawn by O.K. Oluokun Registered Surveyor dated 28th day of April, 1998 and thereon edged BLUE”. Issue I is resolved in the affirmative against the appellants.
ISSUE 2
Whether the respondents established the root of title of Ilupeju in whose name they sued in representative capacity to be entitled to declaration of title.
On this issue, the appellant’s contention is that the respondents sued the appellant for themselves and on behalf of the Ilupeju family of Ejigbo but failed to show how the Ilupeju family came to own the land in dispute. The pleading and evidence led, the appellant argued related to one Ogunsosin, their ancestor who settled on the land in dispute from time immemorial and who with his successive descendants exercised several acts of ownership on the said land. Ilupeju was a fourth generation descendant of Ogunsosin and was not the only one in that line of descent. How come only the descendants of Ilupeju are claiming title over a parcel of land which they stated in evidence belonged to all the descendants of Ogunsosin. There was no evidence of partition or exclusive grant to Ilupeju to enable his descendants inherit the land from him.
The preliminary objection raised by Awoniyi Alabi Esq. for the respondent on this issue has already been dealt with. He consequently made no further submissions on the issue. As I had stated earlier, the respondents sued for themselves and on behalf of Ilupeju family praying for a declaration that they are entitled to the statutory right of occupancy of the disputed land, damages for trespass and injunction. How can Ilupeju’s title not been in issue when that is what the case is all about? The respondents as plaintiffs are bound to lead evidence to show how the Ilupeju family acquired title to the land in dispute. Were they able to discharge the evidential burden? In the amended statement of claim, the respondents averred that the land in dispute formed part of a large piece or parcel of land which Ogunsosin their ancestor settled on from time immemorial. The descendants of Ogunsosin have been in exclusive and successive possession of the land, farming on the land, making grants to tenants and carrying on other developmental activities. Ogunsosin’s major work was iron smelting. This was complemented by farming and hunting for games. The iron smelting work was inherited by descendants of Ogunsosin from one generation to the other. Ogunsosin the ancestor of the plaintiff’s begat a number of children, the most prominent of which was Bebe. Bebe begat Ayanniyi. Ayanniyi begat Obe-Ayelaagbe, Obe-Ayelaagbe begat Ilupeju, Ilupeju begat a number of children who are the grand parents of the Plaintiffs. Ogunsosin together with his children, grand children and great grand children exercised various acts of ownership and remained in successive possession of the land till date. PW2, Ilupeju Tayo gave evidence along the lines of the pleaded facts. He named the descendants of Ogunsosin as pleaded but after Ilupeju he added and “others” which is not part of the pleading. It is this addition that led to the argument by the appellant that there were other children apart from Ilupeju so that Ilupeju must show how he alone acquired title to the land. It is clear from the pleading and evidence that Ilupejus are the latest descendants of Ogunsosin. The evidence is that the descendants of Ogunsosin inherited the land from generation to generation till the present day, the Ilupejus being the latest generation. The appellant is consequently wrong in his contention that respondents failed to establish how Ilupeju derived his title to the land in dispute. The pleading and evidence is that the Ilupeju family acquired title by inheritance as the latest descendants of Ogunsosin. In Nwadiogbu V. Nnedozie (2000) FWLR (Pt. 61)-1625 @ 1638 A – B, Iguh JSC observed:
“Once in a land dispute a party pleads and traces the root of his title to a particular person or family, that party to succeed must establish how that person or family derived his title or its title to such land. In other words, that party must not only plead and establish his title to the land; he must also plead and prove the title of the person from whom he derived his alleged ownership of the land in dispute…”
Although the learned trial judge made no specific finding on this issue, the respondents did plead and lead evidence that their ancestor Ogunsosin acquired the land in dispute by settlement and that it passed on by inheritance in an unbroken succession to the descendants of Ogunsosin from generation to generation until it got the respondents, the Ilupeju family. There is no lacuna at all in the mode of acquisition of Ogunsosin’s land by Ilupeju. The evidence is that Ogunsosin begat Bebe, Bebe begat Ayanniyi. Ayanniyi begat Obe-Ayelaagbe, Obe-Ayelaagbe begat Ilupeju. The line of succession and inheritance was unbroken and in the order as set out above. The respondents did establish by credible evidence the root of title of Ilupeju family. The learned trial Judge believed their evidence, though he took it as a settled issue and glossed over it in his judgment. Issue 2 is resolved in the affirmative against the appellants.
ISSUE 3
Whether the pieces of evidence proffered by the respondents were cogent and credible enough to support the findings/decision of the learned trial Judge that the respondents were entitled to the reliefs sought.
I have carefully considered the very lengthy submissions of both counsels on this issue. There is no need to reproduce them. I will however refer to them as the need arise. Both counsel set out the five ways in which ownership of land may be proved as enunciated in Idudun V. Okumagbe (1976) 9 & 10 SC 227.
The respondents to succeed need not plead and prove any more than one of the five ways or methods. See Ebe, Ebe Uka V. Chief Kalu Okorie Irolo (2002) FWLR (Pt. 127) 1167 @ 1191- 1192 Per Ogundare JSC (of blessed memory):
“…A party claiming declaration of title to a statutory or customary right of occupancy to land needs not plead and prove any more than one of the five methods by which title to land may be proved to succeed. It must however be stressed that if as is sometimes the case, the claimant pleads and/or relies on more than one method to prove his title, he merely does so ex abundante cautela as proof of one single root of title is sufficient to sustain a plaintiff’s claim for declaration of title to land.
At page 165 of the record of appeal, the learned trial Judge in his judgment observed:
“The plaintiffs by the averments in the statement of Claim and the evidence adduced are relying on traditional evidence, acts of ownership and long possession… the summary of which is that the plaintiffs’ ancestor called Ogunsosin was said to be the first settler on the land which he used for farming and for extraction of iron ore. That the plaintiffs have farms on the land and have iron ore pit “Orota” on the land. That the land derives its name Oke-Ogun from the activities of the Plaintiffs ancestor extracting iron ore from blacksmithing work on the land for a long time even before the settlement of the present Ejigbo town. The plaintiffs also by evidence claimed to have made grants of the land to A.U.D. Muslim community for the establishment of a school and cemetery. That a building by one of the plaintiffs’ ancestors one Yusuf Ayandiwin on the land in dispute with his name written on it forms part of the A.U.D. School. The defendant tried to water down the effect of this fact by alleging that Yusuf Ayandiwin was just one of the members of A.U.D. Muslim community who came to ask for the land. I believe the evidence of the plaintiffs that Yusuf Ayandiwin was not just a member of A.U.D. Muslim community but granted the land for the School and the Cemetery…I have carefully examined the evidence adduced by witnesses on both sides and coupled with their demeanor, and I have come to the irresistible conclusion that the case put forward by the plaintiffs of ownership of the land in dispute by act of settlement is more probable and credible than the story of the defendant that the plaintiffs family are tenants on the land. The acts of ownership and long possession are also consistent with ownership.”
Prince Olaoba-Efuntayo for the appellant found fault with the views of the learned trial Judge as set out above. He was of the view that the respondents’ family of Ilupeju did not settle on the land but one Ogunsosin and that the Ilupeju family did not prove their root of title. I agree that the learned trial Judge took the title of the Ilupeju family for granted and so made no finding on it. It was however duly pleaded and evidence led that the Ilupeju family as descendants of Ogunsosin who first settled on the land acquired title to the land by inheritance. See paragraphs 5, 6 and 7 of the amended statement of claim at page 7 of the record. See also the evidence of PWZ at pages 19 -23 of the record. At page 19, PW2 testified that:
“The descendants of Ogunsosin inherited the land upon which Ogunsosin settled upon and there had never been any hindrance or question or encumbrance from any quarter until the period when this trouble with the defendant started.”
The matter of root of title of the Ilupeju family has been fully dealt with under issue two. The learned trial Judge is correct in holding that the respondents proved their entitlement to ownership of the land by traditional evidence and acts of long possession. The traditional evidence as found by the trial Judge is based on act of settlement by their ancestor Ogunsosin. The respondents pleaded and led evidence that Ogunsosin migrated from Otamokun and settled on the land in dispute. That, upon settlement, Ogunsosin exercised acts of ownership by carrying on his iron-smelting work, hunting and farming on the land in dispute. That the iron-smelting work was carried on by searching and burrowing for iron-ore and this necessarily involved digging deep into the earth for iron ore. The holes dug into the land for iron ore by successive descendants of Ogunsosin and from which material was excavated still exist on parts of the land in dispute and they are called “orota”. As a result of the presence of iron-ore on the land in large quantity, Ogunsosin named the land “Oke Ogun”, a name it answers till date. Ogunsosin begat Bebe, Bebe begat Ayanniyi, Ayanniyi begat Obe-Ayelaagbe, Obe-Ayelaagba begat Ilupeju. All these descendants of Ogunsosin in succession inherited the land. That is how the Ilupeju family came to be owners of the land. Ogunsosin and his descendants planted cash crops on the land such as palm trees, cocoa, kolanuts, oranges, coffee teak trees and bitternut trees. They granted portions of the land to tenants including A.U.D Muslim School and community without any opposition from anybody. It was not until 1997 that the appellants trespassed on the land and started the trouble that gave rise to this suit. As submitted by Mr. Alabi for the respondents, it is true on careful examination of the further amended statement of defence that apart from general denials, the defendant did not make any specific averment directly in opposition to or in contradiction of the averments in the amended statement of claim. The learned trial Judge believed the evidence of the respondents and consequently found their traditional history cogent, credible and sufficient to support a claim for declaration of title in their favour. I further agree with Mr. Alabi that the contradictions in the evidence of some of the respondents’ witnesses pointed out by the appellant are not material in the circumstances of this case. For example, the fact that PW1 said the area of land granted to A.U.D Primary School was 1.451 hectares while PW6 said it was 2 acres; or the fact that Pw2 and PW5 disagreed as to whether the land in dispute is in Ejigbo or not. There are other such examples. It is not every contradiction that will be fatal to a case. For a contradiction to be fatal it must be of such magnitude as to warrant interference by the court of appeal. See Queen V. Iyanda (1960) 5 FSC 263; Agu V. Nnadi (2002) 128 NWLR (Pt. 798) 103 @ 18A – B. All the contradictions pointed out by the appellant are inconsequential. What is important is that the respondents discharged the evidential burden placed on them to prove their entitlement to the declarations sought. Having done so, the evidential burden shifted to the appellants. The appellant failed woefully in discharging the burden. The learned trial Judge in the judgment at page 167 of the record put the matter succinctly thus:
“On the other hand, the defence of the defendants is full of inconsistency and unfilled gaps. The defendant failed to adduce credible evidence to prove that the plaintiffs are tenants on the land and how the land came to be put in the care of the Ejemu family of the defendant as alleged. By paragraph 10, 11, and 13 of the Further Amended Statement of Defence it was alleged that it was Ogiyan Ondoye that granted the land in dispute to the defendant’s Ejemu family’s ancestor called Ogunniran. However DW3 claimed it was Ogiyan Akinjole who made the grant to Ejemu.
DW4 on the other hand said Ejemu got the land about 30 years ago. He said it was Ogiyan Oyetunde who gave the late Ejemu the land while the present Ogiyan Oyeyode gave the present Ejemu the land. For DW5 on his part, it was Akinjole who installed Ejemu whereas by the defendant’s pleading, Ejemu had not come to Ejigbo by the time of Akinjole. DW7 on his own, said the first Elejigbo, Ogiyan Akiniole gave Ejemu his title and with it, the land. The defendant as DW9 himself said that the first Ogiyan of Ejigbo was Ogiyan Ondoye who gave his ancestor the land in dispute.
Grant of land is a specific fact that has to be proved with the identity of the grantor and the time, event or circumstance of the grant established. No reasonable tribunal can rely on the inconsistent evidence of the defence in this case which failed to establish how the land was granted to the ancestor and when”.
Prince Olaoba-Efuntayo at page 33 of the appellant’s brief of argument submitted that the learned trial Judge unnecessarily beamed his search light on the presumed weaknesses of the appellant’s case rather than on the strength of the respondents’ case. With all due respect to learned counsel, that is not correct. The learned trial Judge had first thoroughly examined the case of the respondents and on being satisfied that the necessary burden was satisfied shifted to the case of the appellant. While it is true that a plaintiff seeking declaration of title to land must succeed on the strength of his own case and not on the weakness of the defendant’s case, where the defendant’s case supports the plaintiff’s case, the plaintiff is entitled to rely on those facts in proving his case. In the instant case, the appellant was unable to establish the grant of the land in dispute to his ancestor; the respondents are entitled to take benefit of this flaw in the appellant’s case. The appellant had alleged that the respondents were tenants on the land. They were unable to adduce evidence in proof. On the contrary, the appellant’s witnesses gave evidence of the presence of the respondents on the land as far back as in the fifties without any evidence that they were there as tenants. None of the witnesses knew the boundaries or extent of the land allegedly granted to the respondents. The witnesses said it had no boundary. The respondents are entitled to take advantage of this flaw in the appellant’s case. There was clear evidence even from the appellant’s witnesses that the respondents are in possession of the land in dispute. DW10 at page 58 of the record testified that it is true that the respondents are farming on the land in dispute. He testified that he knew the respondents had been farming on the land in dispute for up to 50 years. He grew up to meet the respondents farming on the land in dispute. To finally confound the appellant’s case, he was not claiming ownership of the land. His case is that the land belonged to the Ogiyan of Ejigbo who gave evidence as DW11 and yet was not made a party to the suit.
From the foregoing, the learned trial Judge properly evaluated the evidence and came to the right conclusions. Evaluation of evidence and ascription of probative value to such evidence are the primary functions of the court of trial which heard and assessed the witnesses. The appellate court cannot intervene to substitute its own views in the absence of any evidence that the decision of the trial court is perverse.
In conclusion, this appeal lacks merit and is hereby dismissed with N50, 000. 00 (fifty thousand naira) costs in favour of the respondents,
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the benefit of reading in draft the judgment of my learned brother, Iyizoba, JCA. His Lordship has painstakingly considered and ably resolved all the issues in contention in this appeal. I am in entire agreement with the reasoning and conclusion reached.
Where the trial court has properly discharged its primary duty of evaluation of evidence and ascription of probative value thereto, an appellate court would not disturb its findings unless such findings are perverse.
The learned trial Judge in the instant case properly discharged its duty in this regard. The appellants have failed to satisfy this court that this is a proper case in which to interfere with the decision.
I also find no merit in this appeal. It is hereby dismissed with costs assessed at N50, 000.00 in favour of the respondents.
MOORE A. A. ADUMEIN, J.C.A: I read in draft the judgment just delivered by my learned brother, IYIZOBA, JCA. The issues in this appeal were rightly resolved by His Lordship.
I agree entirely with the leading judgment. I too hereby dismiss this appeal and abide by the orders in the leading judgment.
Appearances
PRINCE ADESOJI OLAOBA-EFUNTAYOFor Appellant
AND
AWONIYI ALABI ESQFor Respondent
