CHIEF YISAU OLASORE & ANOR V. RUFUS AJIBOLADE & ANOR
(2011)LCN/4935(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of November, 2011
CA/I/28/2007
RATIO
DECLARATION OF TITLE: WHETHER A CLAIMANT OR PLAINTIFF IN A CASE FOR DECLARATION FOR TITLE TO LAND MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE AND NOT ON THE WEAKNESS OF THE DEFENCE
The law is also well-settled that a claimant or plaintiff in a case for declaration for title to land must succeed on the strength of his own case and not on the weakness of the defence. The claimant or plaintiff must succeed by credible evidence. See O.K.O. MOGAJI V. CADBURY NIGERIA LIMITED (1985) 2 NWLR (Pt. 7) 393 and KODILINYE V. ODU 2 WACA 336. PER MOORE A. A. ADUMEIN, J.C.A
PROOF OF TITLE: WAYS OF PROVING OWNERSHIP OF TITLE TO LAND; WHETHER IT IS MANDATORY FOR A CLAIMANT TO SATISFY ALLL THE FOREGOING WAYS TO SUCCEED
The law is settled that there are 5 (five) ways of proving ownership of title to land. The five ways in which ownership of land can be proved as set out by the Supreme Court in IDUNDUN V. OKUMAGBA (1976) 9 – 10 S.C.224, are: 1. By traditional evidence 2. By production of documents of title. 3. By proving acts of ownership numerous and positive enough to warrant an inference that the person is the true owner. 4. By proving acts of long possession and enjoyment of the land 5. Proof of possession of connected or adjacent land – known as the contiguity rule. It is not mandatory that all the five foregoing ways have to be satisfied by a claimant. A claimant can succeed by any one or more of the five ways of proving ownership of land. PER MOORE A. A. ADUMEIN, J.C.A
EVALUATION OF EVIDENCE: WHETHER IT IS THE PRIMARILY DUTY OF THE TRIAL COURT TO EVALUATE AND ASCRIBE PROBATIVE VALUE TO THE EVIDENCE ADDUCED BY A WITNESS
The duty of evaluation and ascription of probative value to the evidence adduced by a witness is primarily that of a trial judge, who had the rare advantage and opportunity of hearing the parties and or their witnesses and watching or observing their demeanour. An appellate court will not disturb the findings of a trial court unless such findings are perverse or where the trial court failed to evaluate the evidence before it or where it did not properly evaluate or review the evidence. If this is the case, an appellate court can assume that duty and evaluate the evidence based on the record of appeal. See BUHARI V. INEC & ORS (2008) 19 NWLR (Pt. 1120) 246 at 412-413; 12 SCM (Pt.2) 234 at 336. PER MOORE A. A. ADUMEIN, J.C.A
LONG POSSESSION: WHETHER LONG POSSESSION CAN CONFER TITLE ON A PARTY IF ANOTHER PARTY TRACES HIS TITLE TO THE TRUE OWNERS
The law is settled that in a claim for declaration of title to land, long possession would not confer title on a party if another party traces his title to the true owners unless the long possession is of a nature that ousts the title of the true owner by a acquiescence. See THOMAS V. HOLDER 12 WACA 78; DA COSTA V. IKOMI (1968) 1 ALL NLR 394 and O.K.O. MOGAJI V. CADBURY NIGERIA LIMTED, (supra). PER MOORE A. A. ADUMEIN, 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
MOOBE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. CHIEF YISAU OLASORE
(Baatisin of Ilesa)
2. OLUSOLA O. AKANNI
(for themselves and on behalf of Baatisin family of Ilesa) Appellant(s)
AND
1. RUFUS AJIBOLADE
2. ISSAC ODUNLADE OJO Respondent(s)
MOORE A. A. ADUMEIN, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Osun State High Court, Ilesa Division, in Suit No: HIL/27/2000 – CHIEF YISAU OLASORE & 1 OR. V. RUFUS AJIBADE & 1 OR, delivered by O. D. AFOLABI, J. on the 15th day of December, 2005. The appellants were the defendants/counter claimants in the Court below.
The grounds and particulars in the amended notice of appeal filed on 21/05/2008, although not properly numbered, are:
“(1) The judgment if (sic) the lower Court dismissing the claims of the Defendants/Counter Claims is un-reasonable, unwarranted and cannot be supported having regard to the totality of the evidence led at the trial.
(2) The Learned Trial Judge misdirected himself on the Defendants’ evidence when at page 138 of the record he held:
“…They called 6 witnesses. Out of these six witnesses said anything about the traditional history of how the land devolved on defendants’ family…” and thereby came to a wrong decision.
PARTICULARS OF MISDIRECTION
(a) All of the six witnesses called by the Defendants ownership claims before the history could be rendered believable or probable.
(b) Of the six witnesses called by the Defendants, the 2nd and 3rd Defendants’ witnesses were tenants of their family who have been on the farm land for years while the 4th Defendants’ witness, Chief Lasore is a boundary man who only came to give evidence that Lasore Chieftaincy land share boundary with the land in dispute which land according to him belong to the defendants Baatisin family.
(c) It would be absurd to expect these three witnesses to give evidence of traditional history of the Defendants’ claims.
4. The learned trial Judge, with respect, erred in law when he held that the Defendants/Counter- Claimants have not led credible evidence to establish the traditional history they relied on.
PARTICULARS OF ERROR
(a) This conclusion is not borne out of the evidence led as the learned trial Judge relied heavily on sincerity and Demeanour of witnesses in testing the probability of the traditional history of the land in dispute.
(b) The learned trial Judge ought to have placed both traditional evidence of both parties on the proverbial imaginary scale and determine which is more probable or resort to facts within the recent memory in line with the principles established in KOJO V. BONSIE (1957) 1 WLR 1223 before coming to the legal conclusions.
5. The learned trial Judge misdirected himself on the evidence of the Appellants/Counter Claimants and the submission of their learned counsel and thereby came to a wrong decision when in page 139 of the record he found as follows:
“Learned counsel for the Defendants/Counter-claimants has submitted he address before this court that the burden of proving title to the land rests on the plaintiffs. With respect to the learned counsel, the Defendants/Counter-Claimants are the plaintiff in the Counter-Claim and the burden of proving title to the land they are claiming in their counter-claim rests squarely on their shoulders. It is only where the case of the plaintiff in this case assisted their case that the court could pronounce on such.”
PARTICULARS OF MISDIRECTION
1. The Defendants/Counter Claimants led cogent and convincing evidence of their traditional history of how the land became their family land without waiting for the Plaintiff/Respondents who gave no traditional evidence at all and called no witness except the bare assertion of the 1st Plaintiff that the land belongs to Ogidan his forefather
2. Learned Counsel to the Appellant did not say the burden of proof of the Counter Claim was on the Plaintiff but only urged the lower court, as contained in pages 109-110 of the records to solve the conflict by comparing the histories of the parties especially having regard to the fact that the Plaintiff/Respondents never gave evidence in the proof of their root of title which they claimed to be Ogidan
6. The learned trial Judge erred in law to have relied on Exhibits PA1, PA4, PA5, PA6 and PA8 which are previous judgments against two people who were not parties to this section as acts of ownership and possession having earlier found that the plaintiffs did not prove their root of title to the land in dispute.
PARTICULARS OF ERROR
1. The lower court in page 139 lines 4 -7 of the record found that the plaintiffs only traced their title to Ogidan and nothing was said on how Ogidan came to own the land.
2. Having failed the prove this fundamental issue of root of title, there is no peg on which to hang the said acts of ownership and or possession of the plaintiffs.
7. The Lower Court erred in law to have failed in its judgment to conclusively resolve the very crucial issue of competing ownership claims of the parties before the court.
PARTICULARS OF ERROR
1. It is the duty of the Lower Court to come to a definitive finding as to who between the parties own the land in dispute.
2. The Lower Court only found that both parties have been exercising right over various portions of the land but the issue of who between them had better title remained a live issue even after Judgment.”
The parties filed and exchanged briefs of argument. The appellants’ briefs are-
1. Appellants’ brief dated the 19th day of May, 2008 but filed on the 21st day of May, 2008.
2. Appellants’ reply brief dated the 23rd day of April, 2009 and filed on the date.
The respondents’ brief dated the 11th day of September, 2008 was filed on the 15th day of September, 2008.
During the hearing of the appeal, the parties adopted and relied on their respective briefs. The learned counsel for the appellants urged the court to allow the appeal but the learned counsel for the respondents, however, asked the Court to dismiss the appeal.
In their brief of argument, the appellants formulated the following five issues for determination
“(a) Whether in the light of the totality of the evidence led in this case, the Learned Judge was not wrong in coming to the conclusion that the appellants failed to prove their traditional history in support of their Counter-Claim.
(b) Whether the Learned trial Judge properly directed himself as to the burden of proof having regard to the nature and character of the traditional evidence led by both sides.
(c) Whether the Learned trial Judge properly directed himself on the evidence of the Appellant and their witness having no regard to his emphases on sincerity and reliability of the witnesses concerning the evidence on their traditional history.
(d) Whether the Learned trial Judge was not wrong on relying on Exhibits PA1, PA4, PA5, PA6 and PA7 which are pervious judgments as Respondents’ act of ownership considering his earlier finding that the Respondents’ failed to establish their root of title.
(e) Whether the Learned Trial Judge conclusively resolve the issue of ownership of the land in dispute as between the parties before the court.”
On their part, the respondents formulated only 3 (three) issues-
1. Whether on the evidence adduced by the defendants counter claimant in their case there was any or sufficient proof of their title to the land in dispute
2. Whether the Learned Trial Judge was right in dismissing the Defendants counter claimants claims when they failed to prove their case having regard to their amended Statement of Defence and counter claim.
3. Whether having regards to the obvious contractions in the case of the Appellant and their failure to properly identify the land in dispute the Court was wrong in dismissing the Appellants counter claim.”
The issues formulated by the appellants in their brief argument adequately cover all their grounds of appeal.
ISSUE NO. A AND ISSUE NO. B
“(a) Whether in the light of the totality of the evidence led in this case, the Learned Judge was not wrong in coming to the conclusion that the appellants failed to prove their traditional history in support of their Counter-Claim.
(b) Whether the Learned trial Judge properly directed himself as to the burden of proof having regard to the nature and character of the traditional evidence led by both sides.
These issues were argued together by the appellants.
The appellants referred to the evidence of their witness, particularly DW1 – Chief Israel Alaba Olamisehinde Onigbogi, DW2 – Rev. Titus Amoo, DW3 – Morinatu Odeyemi and argued that they led enough cogent and convincing evidence to prove traditional history of their ownership of the land in dispute. The appellants stated that if the lower court had weighed the evidence of their witnesses against the evidence of the sole witness who testified for the respondents, the court would have easily concluded that their traditional history was move probable. Mr. O. J. Erhabor, learned counsel for the appellants, referred the court to the case of AIGBOBAHI & ORS. V. CHIEF E. AIFUWA (2001) FWLR (Pt.74) 337 at 361.
The learned counsel for the appellants then submitted, inter alia, as follows:
“The Learned trial Judge rather laid undue emphases on the facts that only three out of the six witnesses called by the defendants gave evidence on the traditional history of the defendants in proof of their counter-claim. We submit with respect that, it is a mis-direction as it is not the number of witnesses called to repeat the history that renders same to be more probable. The DW 2 and DW3 gave evidence that their fathers were tenants of the Defendants family and their death they inherited their tenancy. The DW 3 was a woman about 100 years old. This is evidence of acts of ownership of close to 200 years old which is on going. It is noteworthy, that the DW3 was not cross-examined by the Plaintiffs. (See page 98 of the record).
The Plaintiffs on their own only called the 1st Plaintiff as sole witness. He gave evidence that they have tenants, none of them was called as witness; apart from his questionable Exhibits of judgments originating from Customary Courts where he worked as Registrar, there is no evidence at all of his recent acts of ownership.
Learned counsel argued that although the respondents claimed that they had tenants, none of the tenants was called as a witness.
The Court was urged to resolve these issues in favour of the appellants.
In their brief, settled by Chief A. O. Omisade (now deceased), the respondents submitted that in a claim for declaration of title to land, the claimant/plaintiff had the onus to prove his title. Reference was made to the cases of AKINOLA V. OLUWO (1962) ALL NLR 225; M. O. ODESANYA V. EWEDEMI (1962) ALL NLR 318. KODILINYE V. ODU (1935) 2 WACA 336; EGBUNIKE & ANOR V. MUONWEOKWU (1962) 1 ALL NLR 49 at 51 and NKWO V. IBOE (1998) 6 SCNJ 73 at 80.
The respondents argued that the learned trial judge adequately appraised the evidence of the appellants’ 6 (six) witnesses and ascribed value to the evidence adduced. They contended that the judgment of the lower court was supported by the evidence before it. They contended that a party who failed to prove exclusive title to a disputed land could not succeed in his claim.
In his reply brief, the learned counsel for the appellants submitted that the onus of proof on a party claiming title to land “is not different from the general onus of proof in civil cases which is proof on the balance of probability, otherwise known as preponderance of evidence.”On this point, reference was made to the case of DA KABIRI KIM & ANOR. V. HON. JUSTICE LUKE EMEFO & ORS. (2001) FWLR (Pt.66) 792 at 824 – 825.
The appellants argued that the lower ought to have found in their favour based on the preponderance of evidence led on both sides.
ISSUE NO. C
(c) Whether the Learned trial Judge properly directed himself of the Appellant and their witness have no regard to his emphases on sincerity and reliability of the witnesses concerning the evidence on their traditional history.
The learned counsel for the appellants summarized the evidence of DW1, DW2, DW3 and DW5 and argued that the learned trial judge ought not to have dismissed their evidence of traditional history by hammering on the credibility and sincerity of these witnesses. He contended that credibility and sincerity were not the proper guide on the circumstance of this case where they relied on traditional history. He referred, on this point, to the cases of KOJO V. BONSIE (1957) 1 WLR 1223; AHIONBARE V. OMOREGIE (1976) 12 SC II and AKPAPUNA V. NZEKA II (1983) 2 SC NLR 1.
The appellants stated that the evidence of DW5, who was born on the farm and who traced his title through Baatisin, Ogboni up to Owa, was not considered at all by the lower court. They argued also that the lower court erred in not testing their traditional history with their proven acts of ownership.
It was also contended by the appellant that they gave evidence of the boundary of the land and they called a boundary man as a witness. The respondents, however, argued that of the six witnesses called by the appellants, only two of them mentioned the boundaries of the land. They said that DW5 gave conflicting evidence of the land under evidence-in-chief and under cross-examination. The respondents argued that the appellants thus failed to identify the land with certainty. They contended that a claimant claiming declaration of title to land must clearly show the area of land to which his claim related. The respondents referred to the cases of AKINOLU BAFRUWA V. OGUNBOLA & ORS. 4 WACA 159 and ATE KWADZO V. ROBERT KWASH ADJEI 10 WACA 274. Relying on the case of EMIRI V. IMEYEH (1999) 4 SCNJ 17 the respondents argued that boundaries of a disputed land must be precisely proved.
The respondents submitted that where a plaintiff failed to prove his title to a disputed land, the proper order would be an order dismissing his claim – DAWODU V. GOMEZ (1947)12 WACA 151 was cited and retied upon.
Relying on the case of KODILINYE V. ODU (1935) 2 WAGA 336, the respondents argued that a plaintiff must succeed on the strength of his case and not on the weakness of a defendant’s case.
The respondents relied on the cases of MARK UGBO & ORS. V. ANTHONY ABURIME (1994) 9 SCNJ 23 and AHWEDJO EFETIROROJE & ORS. V. HIS HIGHNESS OWYEME OKPALEFE II (1991) 7 SCNJ 85 at 95 and urged the Court to dismiss the appeal.
The appellants in their reply brief, however, contended that there were no material contradictions in the evidence of their witnesses. They argued that there was no dispute as to the identity of the land in dispute as rightly found by the trial court, since both parties knew the land.
ISSUE NO. D.
(d) Whether the Learned trial Judge was not wrong on relying on Exhibits PA1, PA4, PA5, PA6, and PA7 which are pervious judgments as Respondents’ act of ownership considering his earlier finding that the Respondents’ failed to establish their root of title.
Mr. Erhabor, learned counsel for the appellants stated that it was wrong for the trial court to have relied on exhibits PA1, PA4, PA5, PA6 and PA8 as the judgments in these exhibits were against Ezekiel Apata, Samuel Apata and Sunday Awoniyi who were not parties to the present action and that there was no nexus between the said people and the appellants. Furthermore, according to the appellants, there was evidence before the lower court that they were not aware of the litigations that culminated in those judgments and the areas litigated were insignificant portions of the land in dispute.
The appellants referred to the ingredients to be established before a plea of esfoppel per res judicata could succeed as set out by this Court in TSOKWA OIL & MARKETING Co. NIG. LTD. V. U.T.C. NIG. PLC. & ORS (2003) FWLR (Pt.173) 130. They contended that where any of the essential ingredients is missing, a plea of res judicata ought to fail. The appellants further referred the Court to the cases of DZUNGWE V. GBISHE (1985) 2 WNLR (Pt.8) 528; BAMISHEBI V. FALEYE (1987) 2 NWLR (Pt. 54) 51; UDO V. OBO (1989) 2 NWLR (Pt. 95) 95; NKANU V. ONUM (1977) 5 SC. 13 and OKUKUJE V. AKWIDO (2001) FLWR (Pt.39) 1487, (2001) 83 LRCN 225.
Learned counsel for the appellants submitted that, having found that the respondents failed to prove their root of title, the lower court ought to have completely rejected the judgments as acts of ownership and possession. He relied on the cases of EKPO V. ITA 11 NLR 68; KALIO V. WOLUGHEM (1985) 1 NWLR (Pt.4) 610 at 634 and IGE V. FAGBOHUN (2002) FWLR (pt.91) 1545 at 1565 and argued that possession founded on the root of title that failed must fail.
The respondents, on the other hand, stated that since the learned trial judge accepted the evidence of the respondents that they had been exercising rights of ownership over the portion land contained in the judgments exhibits PA1, PA4, PA6 and PA8, it was clear that the appellants did not prove exclusive title. On this point, the respondents referred to the cases of EGBUNIKE & ANOR. V. MUONWEOKWU (supra); NKWO V. IBOE (supra) and ENANG V. ADU (1981) NSCC 453.
ISSUE NO. E
(e) Whether the Learned Trial Judge conclusively resolve the issue of ownership of the land in dispute as between the parties before the court.”
The appellants said the main issue in their counter claim was the competing ownership claims of the parties. They stated that while the lower court held that they failed to prove their traditional history of their ownership of the disputed land, the same lower court found that the respondents failed to prove their root of title but proceeded to conclude that by exhibits PA1, PA4, PA5, PA6 and PA8 the respondents exercised rights over some portions of the land. It was contended by the appellants that the issue of who between the parties had a better title remained a live issue even after the judgment.
The learned counsel for the appellants submitted that the lower court had enough material evidence to have resolved the issue of ownership of the land in their favour.
The respondents’ third issue namely; “Whether having regards to the obvious contractions in the case of the Appellant and their failure to properly identify the land in dispute the Court was wrong in dismissing the Appellants counter claim” does not arise from any of the grounds of appeal and it shall not be countenanced. That an issue for determination in an appeal must arise and flow from the grounds of appeal, see OSINUPEBI v. SAIBU (1982) 7 SC 104; OKEKE V. ORUH (1999) 6 NWLR (pt. 606) 175; IKE V. ENANG (1999) 6 NWLR (Pt. 602) 261 and A.C.B. plc V. EMEDO (2003) 10 NWLR (Pt.828) 244.
The learned trial judge, on the issue of the identity of the disputed land, held as follows;
“On the submission of Chief Omisade that the contradiction contained in Defendants/counter-claimants description of the boundaries of the disputed land is fatal to the claim. It is my opinion that the parties know the land they are litigating on, if not parties would have applied for further and better particulars in their pleadings.”
Notwithstanding the foregoing finding of the trial court, the respondents did not file a cross-appeal or a respondent’s notice and they ought to relate and restrict their issues to the appellant’s grounds of appeal.
I have examined and compared the issues formulated by the appellants and the respondents, respectively vis-Ã -vis the grounds of appeal filed by the appellants and the arguments proffered by the contending parties and I am of the view that the following two issues call for determination. The two issues are;
1. Whether the learned trial Judge conclusively resolved the issue of ownership of the land in dispute as between the appellants and the respondents. (This is a modification of the fifth issue formulated by the appellants)
2. Whether on the evidence adduced by the appellants there was any or sufficient proof of their title to the land in dispute. (This covers issues 1 and 2 formulated by the respondents and the first to the fourth issues framed by the appellants).
ISSUE NO 1
Whether the learned trial Judge conclusively resolved the issue of ownership of the land in dispute as between the appellants and the respondents.
In the judgment under appeal, the learned trial judge held in the case of the respondents’ (plaintiffs’) claim to ownership of the land in dispute as follows;
“The plaintiffs on their own only traced their title to Ogidan and nothing more. The story of how Ogidan came to be on the land in dispute was never told”.
The learned trial judge then proceeded to conclude in the case of the appellants thus;
“This may be so, but the evidential value of Exhibits PA1, PA4, PA5, PA6 and PA8 earlier alluded to in this judgment showed that the plaintiff had equally exercised similar rights over some portion of the land. I have earlier on this judgment addressed issue 5.
In the final analysis, I hold that the Defendants/Counter-Claimants have not proved their counterclaim.
And this is hereby dismissed.”
From the foregoing, it is clear that as between the respondents and the appellants, the question of who own the land in dispute was not conclusively resolved by the trial court, and I so hold.
ISSUE No.2
Whether on the evidence adduced by the appellants there was any or sufficient proof of their title to the land in dispute.
I summarized, earlier in this judgment, the submissions of the appellants and the respondents on this issue. There is no need to repeat their arguments.
The respondents, as plaintiffs in the lower court claimed the sum of N2,000,000 (two million naira) “being special and general damages suffered by the plaintiff as a result of the malicious prosecution of the plaintiffs by the defendant (sic) at Ilesa Magistrate Court in MIL/175C/99.” The respondents claimed that they were the owners of “a farmland at Imoo village via Itagunmodi bounded on the West by Motor Park, on the South by John Fagbewesa’s farm, on the East by Kuku hill and on the North by Joseph Ola’s farm.” The respondents alleged that, at the instance or instigation of the appellants, they were arrested by the police and subsequently prosecuted for conspiracy and willful damage to economic trees valued at N20, 000.00 (twenty thousand naira) in Ilesa Magistrate Court in charge No. MIL/175C/99 but they were eventually discharged and acquitted.
The appellants, as defendants in the trial court, denied the claim of the respondents by an amended statement of defence and counter claim.
The appellants’ prayers as set out in paragraph 16 of their amended statement of defence and counterclaim in the court below were:
”16. (a) A DECLARATION that the defendants and other members of their Baatisin Chieftaincy family are the persons in lawful possession and are the persons entitled to continued exclusive possession of the large parcel of land lying, situate and being at Erinje Sakala, near Itagunmodi, via Osu, and bounded as follows:-
(i. On the first part by Okepa Community land;
(ii. On the second side by Itagunmodi Community land;
(iii. On the third side by Labode’s farmland; and
(iv. On the fourth side by Bowaje’s farmland.
(b) The sum of N300, 000.00 damages for acts of trespass and the damage done to their crops by the plaintiff and their Hausa agents when the unlawfully entered upon the land to prospect for gold in 1998.
(c) An order of forfeiture of any holding by the plaintiffs or their privies over the land as tenants for denying the Defendants family title.
(d) An order or perpetual injunction restraining the plaintiffs, their servants, privies and agents from further trespassing onto the said land.
The appellants claimed that the arrest, charge and prosecution of the respondents was as a result of the respondents’ trespass to their (appellants’) family land lying, situate and being at Erinje Sakala, near Itagunmodi. The appellants averred that sometime in 1998 the respondents employed some Hausa men to prospect for gold on the land in dispute and in the process the appellants’ crops were extensively damaged. The matter was reported to the police and after a visit to the damaged land, the respondents were arrested, charged and prosecuted by the police.
The appellants averred that the land, subject matter of their counterclaim, originally belonged to Owa Obokun Atakunmosa by settlement and that Owa Atakunwosa made an absolute grant of the land to one Chief Ogboni Otomu over 300 years ago. The appellants then averred in paragraphs 19 – 25 of their amended statement of defence and counterclaim as follows;
”19. The Defendants avers that it was Chief Ogboni Otomu who settled his descendants at Itisin (now inside Ilesa) and made Olujohun their Oba and Olujohun was then called Oba-Itisin was later corrupted to be Baatisin.
20. The defendants aver that Itisin people were traditionally children of Ogboni and Oba Itisin or Baatisin is presented by the Ogboni to Owa Obokun for installation and Yisau Lasore is the current Baatisin of the family.
21. The Defendants aver that since the grant of the land in dispute to Baatisin Olujohun by Ogboni Otomu, many years ago, all successive Baatiisin have enjoyed exclusive possession and exercised full ownership rights over the land and some of the successive Baatisins include Baatisin OLUJOHUN, OGUNTOYINBO, OJEORO, OGUNDARE, AREAGO GBADAMOSI, OLATUNBOSUN and the incumbent YISAU LASORE.
22. The former Defendants Alhaji Musa Oloriki was a descendant of OLUJOHUN and OLUJOHUN begat Ayelegun and Ayelegun begat Areago and Areago begat Sefinatu (Asgbonsi) who begat the said Alhaji Olokiri.
23. The Defendants aver that it was their grandfather Areago who engaged Ogidan from Modakeke as a Worker/Tenant on portions of the farmland and he worked for him and was paying him Ishakole as his landlord.
24. The Defendants aver that Olaolokun succeeded Ogidan and continued the tenancy relationship until he died both Ogidan and Olaolokun were taken to Modakeke for burial.
25. The present plaintiffs succeeded Olaolokun and have been harassing fellow Tenants and members of the Defendants family instigating their arrest and litigation in an attempt to promote their communal irredentism agenda of wrestling farmlands from their landlords and overlords.”
The respondents, on the other hand, claimed that the land belonged to Ogidan family and that they had obtained previous judgments over the land in suit Nos. ”SB/11/76, HIL/89/91, 04/90 and 05/90”. They averred that the late John Fagbewesa succeeded Ogidan on the land and that late Fagbewesa were succeeded by late James Olalekan and Rufus Ajibade on the land. See paragraphs 4 and 7 of the respondents’ reply to the amended statement of defence and counterclaim at page 15 of the record of appeal. In paragraphs 5, 15 and 16 of the respondents’ said reply, they averred thus:
“5. Chief Ogboni never had any proprietary interest in the land in dispute and was never granted any land there in.
15. The plaintiffs took action against those whom Ezekiel Apata granted plaintiffs’ land to Apostle Kayode in suit No. CA/90 and in C5/90 where the Baatisin family were witnesses for Ogidan family.
16. The said Ezekiel Apata also caused plaintiffs’ labourer John Onu, to be arrested and charged to court in HIL/319c/91 but was discharged and acquitted.
The trial court heard the parties and their witnesses and dismissed both the respondents’ claim and the appellants’ counterclaim. The appeal is against the dismissal of appellants’ counterclaim.
The law is settled that there are 5 (five) ways of proving ownership of title to land. The five ways in which ownership of land can be proved as set out by the Supreme Court in IDUNDUN V. OKUMAGBA (1976) 9 – 10 S.C.224, are:
1. By traditional evidence
2. By production of documents of title.
3. By proving acts of ownership numerous and positive enough to warrant an inference that the person is the true owner.
4. By proving acts of long possession and enjoyment of the land
5. Proof of possession of connected or adjacent land – known as the contiguity rule.
It is not mandatory that all the five foregoing ways have to be satisfied by a claimant. A claimant can succeed by any one or more of the five ways of proving ownership of land.
In the instant case, it appears to me that both the appellants and the respondents are relying on traditional history of the land in dispute, although the respondents seem to also rely on long possession and enjoyment.
The law is also well-settled that a claimant or plaintiff in a case for declaration for title to land must succeed on the strength of his own case and not on the weakness of the defence. The claimant or plaintiff must succeed by credible evidence. See O.K.O. MOGAJI V. CADBURY NIGERIA LIMITED (1985) 2 NWLR (Pt. 7) 393 and KODILINYE V. ODU 2 WACA 336.
The appellants called 6 (six) witnesses in the lower court in their attempt to establish their ownership of the land in dispute. The appellants’ first witness – DW1 was one Isreal Alaba Olamisehinde Onigbogi – a retired civil servant and a member of the appellants’ Baatisin’s family. He said that he knew the disputed land. He stated the Owa Obokun of Ijesa land owned the whole land in Ijesa land and that the land in dispute belonged to Owa Obokun. That Owa Obokun Atakunmosa later gave same to Ogboni Otomu who in turn gave the land to Baatisin Olujohun. The witness stated that he knew Olujohun, Oguntoyinbo, Ojeoro, Ogundare, Areago, Gbadamosi, Olatunbosun and Yisau Lasore as Baatisin and that all the said Baatisin had been controlling the land as bonafide owners. He said that the present head of Baatisin was the 1st appellant – Yisau Lasore. DW1 testified that members of the Baatisin family farm on the land and that he was never aware of any dispute on the land. He stated also that Ogidan was not an Ijesa man and that “there is no Ogidan Chieftaincy in Ijesa land.”
Under cross examination, DW1 testified as follows,
“I am well versed in the history of the land in dispute. I do not farm on the land. I know everything that transpires on the land. I go to the land often. I go to the land to visit relatives I do not know the Ogidan family on the land. I do not know Olanlokun on the land. I know Plaintiff on the land as tenants. I know when the 1st Plaintiff retired about 7 years ago. I know the Plaintiffs as tenants farming on the land.
The appellants’ second witness was one Rev. Titus Amoo- a reverend of Christ Apostolic Church. His evidence is at page 98 of the record of appeal where he testified that he knew both the respondents (plaintiffs) and the appellants (defendants) and also the land in dispute. He said that he had farm on the land and that he was a tenant to Baatisin family. The witness stated that the 1st respondent (1st plaintiff) – a descendant of Ogidan was a tenant on the land in dispute and that Ogidan was also a tenant on the land. He further stated that Ogidan was from Modakeke and that he was buried in Osunaro compound, Modakeke. DW 2 concluded his evidence-in-chief as follows;
“Rufus Ajibade the first Plaintiff is also a tenant on the land. It is not true that the land belongs to the first plaintiff and his family.”
Under cross examination, DW2 testified thus:
“I have known him for about six years. I have not been living on the farm. I started seeing him often when this case commenced. Before this time, I used to see him occasionally. I have been on the land since 1952. I have not been seeing the 1st Plaintiff since 1962. I started seeing him about 3years now”.
The third witness who testified for the appellants was one Morinatu Odeyemi – a farmer who did not know her age. She said that she was born on the farmland and that her father “was the original tenant who farmed on the land” and that Baatisin owned the land. She stated that there were other farmers on the farmland and that they were tenants to Baatisin family. DW 3 then testified, inter alia, at pages 98 – 99 of the record of appeal as follows;
“I do not know Ogidan. I only heard the name. I know him physically but not as the owner of the land. He was from Osunaro family of Modakeke. He was not from Ilesa. I am also from Modakeke. I do not know James Olaolokun. I only heard of him. He was also from Modakeke. This is the 3rd Batisin that I know. I know Baatisin Olatunbosun and Gbadamosi. They are the owners of the land.”
The appellants’ third witness – Morinatu odeyemi was not cross examined by respondents.
The fourth witness who testified for the appellants was one Joseph Daramola Losare – Chief Losare of Ilesa who was about 80 years old when he testified. He testified, inter alia, thus:
“I know Erinje farmland. My own farmland is at Losare farm village. The relationship between my farmland and the land in dispute is that a stream forms a common boundary between our two farmland…
The land belonged to Baatisin family. I have never heard from history that the land belongs to Ogidan.”
DW4 was not cross examined by the respondents but under cross examination by the lower court, the witness said that he became Chief Losare in 1968.
The 2nd appellant testified as DWS. His testimony spans pages 99 – 102 and 104 – 105 of the records of appeal. He narrated how the land in dispute – a very large land, originally owned by Owa Obokun of Ijesaland was given by Owa Obokun Atakunmosa to Ogboni Otomu who in turn gave it to his son Baatisin Olujohun and how the children of Baatisin used the land exclusively. He said that during the reign of Ooni Olubuse there was war between Ife and Modakeke and Baatisin Areago was approached by Ogidan for farmland as a tenant. That Ogidan died and was buried at Osunaro compound, Modakeke and James Olaolokun took over the land from Ogidan and that the said James Olaolokun died and was also buried at Modakeke. The witness said that both Ogidan and James Olaolokun paid customary tributes- Ishakole to Baatisin family and that they never laid claim to the land in dispute. He said that the respondents (plaintiffs) were tenants on the land and that the appellants were not aware of any litigation on the land.
Under cross-examination, DW5 said that he was over 60 (sixty) years old and that he was born on the land in dispute. He gave the description of the land in dispute and testified, inter alia, as follows;
“I know Ogidan. He was a stranger on the farm. And he came from Modakeke. He has been on the land for a long time. In fact my great grandfather put him on the land. I knew Ogidan physically he had tribal marks on his face. He had horizontal tribal marks. I was young then. I did not know my age. I was very young then. The land in dispute forms part of our land.”
The appellants’ sixth witness was one Oluwafemi Olomoko – a member of Baatisin family. His testimony both in-chief and under cross-examination is at page 105 of the record of appeal.
On the other side, the 1st respondent (the 1st plaintiff in the lower court) testified on behalf of the respondents. He said that the respondents’ family was Ogidan family and that Ogidan family owned the land in dispute. He said that the respondents obtained judgment in Suit HIL/89/91 on the 30th day of June 1992 against one Ezekiel Apata and the judgment was tendered and admitted in evidence as exhibit “PA 1”. He also tendered the judgment in suit No SB 11/76 – Samuel Apata v. James Olaolokun decided by Grade “C” Customary Couri, Osu as Exhibit “PA 4” and judgment in Suit No. 05/90 – James Olaolokun V. Sunday Awoniyi as exhibit “PA 5″. The review of the decision in SB 11/76 (exhibit PA 4), that is judgment in Suit No. R.33/76 was admitted in evidence as exhibit ‘PA 6’. Judgment in Appeal No CA/I/159/94 confirming the judgment in Suit No. HIL/89/91 (exhibit ”PA 1”) was admitted in evidence as exhibit “PA 8”.
The 1st respondent denied being a tenant on the land. He said that the appellants (the defendants in the lower court) “have never laid claim to the land in dispute throughout the period we have been taken action on the land.”
Under cross-examination, the 1st respondents (PW1) testified, among other things, thus:
“There are no members of Baatisin family farming on the land. I only know members of Olomoko family. It is when we got to the court that I knew that the 2nd defendant is a member of Baatisin family. He farms on the land.”
PW1 said that he was a member of Ogidan who originally was from Imoo and not Osun Aro compound, Modakeke. He said that Ogidan was buried at Itagunmodi and that Olaolokun inherited that land from Ogidan The witness stated that Olaolokun was buried in the Anglican Church cemetery at Alapata, Modakeke because he was the Baba Ijo of St. Stephen Anglican Church, Itaosin when he died. PW1 also testified under cross-examination, thus:
“There are Itisin quarters in Ilesa. Chief Baatisin is the traditional head of Baatisin Quarters in Ilesa. The defendants are members of Baatisin family.”
The 1st respondents further stated that he did not know that Owa Atakunmosa gave the entire land to Ogboni.
From the evidence adduced by the appellants, in the court below, as summarized earlier the conclusion by the learned trial judge at page 139 of the record that the appellants “have not led credible evidence to establish the traditional history they relied on in proving their case” cannot be supported. In reaching its conclusion the trial court opined that “only the 2nd defendant and two other witnesses said anything about the traditional history of how the land devolved on defendant’s family” and further that the appellants ought to have called as their witness one of the palace chiefs in Owa’s palace to “corroborate their evidence”. What is the essence of corroboration, if I may ask? The answer was given by the Supreme Court, per KALGO, JSG in IKO V. STATE (2001) 14 NWLR (Pt. 732) 240, (2001) FWLR (Pt. 68) 1161 at 1177 thus:
“The process of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible…”
The appellants’ counterclaim was a civil claim and the standard of proof placed on them was a proof on the balance of probabilities. The appellants could succeed on the preponderance of evidence adduced by them. There is no legal burden on the appellants to prove their claim beyond reasonable doubt as one is expected in a criminal case. Furthermore, there is no legal requirement that to succeed in a civil or criminal claim the evidence of a single or solitary witness may not suffice. Save in cases requiring corroboration, such as claims in respect of breach of undertaking or promise to marry, trial of offences of perjury, over speeding or exceeding speed limit, sedition, treason, etc and in respect of the unsworn evidence of a child and other cases specifically provided for by statute and or by established practice, a trial court can act on the evidence of a sole or single witness, if the evidence is credible and reliable in determining a civil or criminal case. See section 179(1) of the Evidence Act which provides thus;
“Except as provided in this section, no particular number of witnesses shall in any case be required for the proof of any fact.”
In this case, the learned trial judge failed to adequately evaluate the evidence adduced by the appellants and their witnesses. For example while dismissing the evidence of DW2 and DW3 (the appellants’ second and third witnesses), as not convincing the learned trial judge held at pages 138 – 139 of the record of appeal thus;
“The second defence witness when giving evidence said that he only heard of Ogidan from history and that he and Ogidan family are tenants on the disputed land. He later said that Ogidan must have died. Under cross-examination this witness said that he had known the 1st plaintiff for about six years. Then he changed gear that he started seeing him about three years now”
The 3rd defence witness was an old woman who said in one breath that she did not know Ogidan and in another breath that she knew Ogidan physically. Yet she did not know James Olaolokun who incidentally succeeded Ogidan on the land in dispute.”
I have already reproduced the evidence of DW2 under cross-examination. If the trial court had taken the evidence of this witness (Rev Titus Amoo) not in piecemeal but as a whole, the court would not have been able to see any material inconsistency in his testimony. What is the material difference in a person having known another six years ago and seeing him often “when this case commenced” and that he “started seeing him 3 years now.” This witness testified on the 26th day of July 2006 while this case was filed at the trial court on 27th day of March 2000. (See pages 96 – 98 and 1 – 4 of the records of appeal). If these dates were taken into consideration, there is nothing inconsistent with the evidence of DW2 under cross-examination.
In any case, the witness (DW2) gave unchallenged and uncontroverted relevant evidence that he was a tenant on the land in dispute and that before him, his father was a tenant to the appellants on the land in dispute. He also testified that “Ogidan are tenants on the land” The learned trial judge completely abandoned these very important pieces of evidence and undertook a journey of laying undue emphasis on matters that were irrelevant to the issue of title to the land in dispute.
The duty of evaluation and ascription of probative value to the evidence adduced by a witness is primarily that of a trial judge, who had the rare advantage and opportunity of hearing the parties and or their witnesses and watching or observing their demeanour. An appellate court will not disturb the findings of a trial court unless such findings are perverse or where the trial court failed to evaluate the evidence before it or where it did not properly evaluate or review the evidence. If this is the case, an appellate court can assume that duty and evaluate the evidence based on the record of appeal. See BUHARI V. INEC & ORS (2008) 19 NWLR (Pt. 1120) 246 at 412-413; 12 SCM (Pt.2) 234 at 336. DW3, a witness described as “an old woman”, was one Morinatu Odeyemi whose testimony was summarized earlier in this judgment. Just as in the case of DW2, the trial court placed all emphasis on an inconsequential inconsistency in the witness’ evidence that is that the witness said that she did not know Ogidan but later said she knew him physically. The witness a farmer, the old woman, who did not know her age said that she was born on the farmland. She said that her father “was the original tenant who farmed on the land”. An interesting aspect of the testimony of this witness is that she was from Modakeke and that Ogidan and Olaolokun were also from Modakeke but that the appellants’ Baatisin family owned the land in dispute. Surprisingly, DW3 (Morinatu Odeyemi) was not cross-examined by the respondents. In the face of her largely unchallenged evidence that the land in dispute belonged to the appellants, and that she and her father were tenants to the appellants, it was very wrong of the trial court to cling to a minor inconsistency in her evidence to completely discard her evidence.
The appellants’ boundary neighbour – Joseph Daramola Losare, Chief Losare of Ilesa, who was about 80 years old when he gave evidence, stated unequivocally and he was not challenged by the respondents, that a stream – called Oika formed a common boundary between his land and the land in dispute which belonged to the appellants’ Baatisin family. He emphatically said that he had “never heard from history that the land belongs to Ogidan”. Even in the face of such strong evidence from an eighty-year-old man, the witness was not cross-examined and his evidence remained unchallenged.
The appellants pleaded and led evidence that the land in dispute originally belonged to the Owa Obokun of Ijesaland and in particular that one Owa Obokun Atakunmosa gave an absolute grant of the same to Ogboni Otomu and from Ogboni Otomu the land devolved from one generation of their fore bearers to another until the appellants. The evidence adduced by DW1 and DW5 – Olusola Akanni Olumoko (the 2nd defendants/appellant) in this respect remained largely unchallenged and uncontroverted by the respondents. The applicants’ traditional history was very consistent, reliable and credible. It was wrongly rejected by the learned trial judge.
On ‘the balance of probabilities, based on the substantially unchallenged’ evidence led by the appellants, two of their tenants -Rev. Titus Amoo (DW2) and Morinatu Odeyemi (DW3) and their boundary man – Pa Joseph Daramola Lasore (DW4) there was preponderance of evidence showing that the ownership of the land in dispute vested in the Baatisin family – the appellants in this case and I so hold.
On the previous court proceedings and or judgments – exhibits PA1, PA4, PA5, PA6 and PA8 relied upon by the respondents in proof of their ownership or long possession, the said judgments do not constitute estoppel res judicata against the appellants, as neither the appellants nor their privies or agents were parties to the said proceedings or cases.
In the present case, the acts of the respondents’ possession – nay long possession were traceable ultimately to one Ogidan. How Ogidan became the owner of the land in dispute remains a misery, as the respondents were silent on it. The lower court was right, therefore when it held thus;
”The plaintiffs on their own only traced their title to Ogidan and nothing more. The story of how Ogidan came to be on the land was never told.”
The appellants, on the other hand were able to trace the title to Owa Obokun Atakunmosa who made an absolute grant to their forebear – Ogboni Otomu.
The law is settled that in a claim for declaration of title to land, long possession would not confer title on a party if another party traces his title to the true owners unless the long possession is of a nature that ousts the title of the true owner by a acquiescence. See THOMAS V. HOLDER 12 WACA 78; DA COSTA V. IKOMI (1968) 1 ALL NLR 394 and O.K.O. MOGAJI V. CADBURY NIGERIA LIMTED, (supra).
This issue is hereby resolved in favour of the appellants.
On the whole, this appeal has merit and it is hereby allowed. Consequently, the judgment of the lower court dismissing the defendants/appellants counterclaim is hereby set aside. The defendants/appellants’ counterclaims as claimed in paragraph 16 of their amended statement of defence and counterclaim are hereby granted as prayed
The sum of N50,000.00 is thereby awarded as costs in favour of the appellants against the respondents.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the benefit of reading before now the judgment of my learned brother, M.A.A. ADUMEIN, JCA just delivered. His Lordship has painstakingly considered and ably resolved all the issues in contention in this appeal. I am in full agreement that the appeal has merit and should be allowed. I also allow the appeal and abide by all the consequential orders including the order as to costs.
CHINWE E. IYIZOBA, J.C.A: I read before now the judgment just delivered by my learned brother, Moore A.A. Adumein JCA. I agree with his reasoning and conclusions. He has dealt fully and comprehensively with all the issues raised in the appeal. I agree that the appeal has merit and should be allowed, I too hereby allow the appeal. I abide by the consequential orders in the lead judgment including the order as to costs.
Appearances
O. J. ERHABOR, ESQ.For Appellant
AND
CHIEF B. O. OMIREFA, ESQ.For Respondent
