ELEGBEDE & ANOR v. PETER & ANOR
(2022)LCN/16466(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, April 08, 2022
CA/IB/160/2015
Before Our Lordships:
YargataByenchitNimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
1. JAMES ELEGBEDE 2. JACOB ELEGBEDE APPELANT(S)
And
1. TANLOJU PETER 2. NUPO PAKO RESPONDENT(S)
RATIO:
A CLAIM FOR DECLARATION OF TITLE TO LAND HAS A DUTY TO ESTABLISH WITH CREDIBLE EVIDENCE
It is a settled general principle of law that in a claim for declaration of title to land the Claimant has a duty to establish with credible evidence and with certainty the identity and precise area of the land which he claims. This duty is only obviated where the Defendant does not dispute the identityor location of the land in his Statement of Defence. In the case of NWOBODO EZEUDU &ORS v ISAAC OBIAGWU (1986) 2 NWLR (Pt. 21) 208, the Supreme Court, per Oputa, JSC stated this principle at page 220, when he held:
The identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent. ABBA BELLO MOHAMMED, J.C.A.
A CLAIMANT WHO SEEKS FOR DECLARATION OF TITLE TO LAND HAD THE BURDEN OF ESTABLISHING WITH CREDIBLE EVIDENCE
It is settled law that a Claimant who seeks for a declaration of title to land had the burden of establishing with credible evidence his entitlement to such a declaration, which burden he must discharge on the strength of his own case and not on the weakness of the case of the Defendant, even as he may rely on the case of the Defendant where it supports his own case. Unless so established with credible evidence, such a declaratory relief is not granted even on admission by the Defendant. See BULET INT’L (NIG.) LTD. v OLANIYI & ANOR (2017) LPELR-42475(SC), per Kekere-Ekun, JSC at pages 29 – 30, para. E and MATANMI & ORS v DADA & ANOR (2013) LPELR-19929(SC), per Fabiyi, JSC at page 8, para. C. ABBA BELLO MOHAMMED, J.C.A.
THE CONFLICTING EVIDENCE OF A TRADITIONAL HISTORY AND WHETHER IT CAN BE RESOLVED ON AN EVIDENCE LED
Now, it is trite that where parties to a land dispute have given conflicting evidence of traditional history, the trial Court is enjoined to first try to see whether the conflict is resolvable on the evidence led. It is only where the conflict in the evidence of traditional history is unresolvable by the trial Court that it is enjoined to apply the rule in KOJO II v BONSIE (1957) 1 WLR 122 at 126, by using facts in recent years in order to resolve the impasse. See TAIWO & ORS v OGUNDELE & ORS (2012) LPELR-7803(SC), where the Supreme Court, per Rhodes-Vivour, JSC, held at pages 31 – 32, para. A that:
“Where the traditional history of both parties are in conflict which usually is the case, but the trial Judge is able to resolve the conflicts, there would be no need to resort to the Rule in Kojo II v. Bonsie supra. Where on the other hand, the traditional history are in conflict and each has much weight, i.e. they both appear reliable and probable, it would then be the duty of the judge to resolve the impasse by reference to facts in recent years by compelling evidence. The rule is only applicable in a case where traditional evidence is inconclusive.” ABBA BELLO MOHAMMED, J.C.A.
PROOF OF OWNERSHIP IS PRIMA FACIE OF PRROF OF POSSESSION
In AYANWALE v ODUSAMI (2011) LPELR-8143(SC), the Supreme Court, per Rhodes-Vivour, JSC reiterated this trite position at page 21 para. E, when the Apex Court held as follows:
“Proof of ownership is prima facie proof of possession. The presumption being that the person with title to the land is in possession. Once the Court finds that a party has a better title to the land, a claim for trespass and injunction are easily sustained, and the injunction pronounced is of the perpetual type that is for all time.” ABBA BELLO MOHAMMED, J.C.A.
AN AMENDMENT SPEAKS FROM THE DATE THE ORIGINAL PLEADING WAS FILED
See also EMESIANI v EMESIANI (2013) LPELR-21360(CA), per Agim, JCA (as he then was) at page 56, para. E.
It is trite that where pleadings are amended, what stood before the amendment is no longer material to determine the live issues between the parties, the amendment speaks from the date the original pleading was filed. See UZODINMA VS. IZUNASO (NO. 1) (2011) 17 NWLR (PT. 1275)28, JATAU VS. AHMED(2003) 4 NWLR (PT. 811)498, ILODIBIA VS. NIGERIAN CEMENT COMPANY LIMITED (1997) 7 NWLR (PT. 512) 174. ABBA BELLO MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): This is an appeal is against the final judgment of the High Court of Ogun State sitting at Ilaro Judicial Division (the trial Court), delivered by Hon. Justice Tajudeen A. Okusokan, on the 24th day of March, 2015. Before the trial Court, the 1st Respondent (as claimant), instituted Suit no. HCL/2/2011, for himself and on behalf of the Tanloju Family, seeking, inter alia, for the following reliefs against the Appellants (as defendants):
1. Declaration that the Claimant family is the one entitled to the customary right of occupancy in respect of that parcel of land situate, lying and being at Igbo Afa via Tube, Ogun State.
2. Forfeiture of the customary tenancy and rights of the 4th Defendant and members of his family.
3. N5,000.00 damages for trespass against the 1st, 2nd and 3rd Defendants.
4. Perpetual injunction restraining the Defendants by themselves, agents, servants, privies or any person from further trespass unto the land.
The Further Amended Statement of Claim of the Claimant is at pages 178 – 180 of the Record of Appeal. The 1st and 2nd Defendants joined issues with the Claimant by filing a Amended Statement of Defence which is at pages 159 – 162 of the Record of Appeal. After a full fledged trial in which each side called witnesses and addressed the Court, the trial Court delivered a considered judgment on 24th March, 2015 granting the Claimants reliefs. The judgment of the trial Court is at pages 249 – 274 of the Record of Appeal.
Dissatisfied with the judgment of the trial Court, the Appellants brought this appeal vide Notice of Appeal filed on 19th of June, 2015. The Notice of Appeal is at pages 275 – 281 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on the 27th of July, 2015. Parties filed and exchanged briefs of argument. The Appellants’ Brief of Argument was filed on the 18th of November, 2021 and deemed properly filed on the same date. The 1st Respondent’s Brief of Argument was filed on the 7th of January, 2022. The 2nd Respondent who was served with the Appellant’s Brief of Argument did not file any brief of argument. The Appellant filed a Reply Brief on the 19th of January, 2022.
At the hearing of the appeal onthe 20th of January, 2022, parties adopted their respective briefs of argument.
In the Appellants’ Brief of Argument the following four issues were distilled for determination:
1. Whether the Claimant (now the 1st Respondent) has proved the identity of the land being claimed by him with certainty as to be entitled to customary right of occupancy over the land in dispute (distilled from grounds 1, 2, 3, 4, 5, 6, 7, 11 and 12).
2. Whether on a proper consideration of the totality of evidence led before the lower Court, the claimant (now the 1st Respondent) has discharged the burden of proof which the law placed upon him as to entitle him to judgment (distilled from grounds 6, 9, 10, 13 and 16).
3. Whether the claimant (now the 1st Respondent) has proved possession or his right to possession of the land in dispute as to be entitle to the grant of damages for trespass and or an order of injunction (distilled from ground 14 and 15).
4. Whether the lower Court has properly and discreetly considered and evaluated the evidence of both parties before arriving at its decision (distilled from ground 17).
On his part, the Respondent distilled the following four issues for determination:
i. Whether the parties in this suit, having agreed to the identity of the land in dispute, the first Respondent has not been discharged of any burden to further prove the identity of the land in dispute.
ii. Whether the first Respondent proved their title to the land in dispute through cogent and uncontroverted evidence.
iii. Whether the principle in Mogaji V. Cadbury Fry Export 1972 SC 97 does not avail in favour of the first Respondent in proof of their possession to the land in dispute.
iv. Whether there was proper evaluation of evidence led by the parties by the lower Court before he arrived at a just conclusion.
From the issues raised by the parties, it seems to me that but for the difference in the use of words, the four issues respectively distilled by the parties are essentially the same. However, since the Appellant is the one that has the grouse, I shall adopt the four issues as distilled by the Appellant in deciding this appeal.
APPELLANT’S SUBMISSIONS ON THE FOUR ISSUES:
On his issue 1, learned Counsel for the Appellant submitted that the onus lies on the Plaintiff to establish with certainty and precision the identity of the land that he lays claim to. He added that establishing with certainty of the identity of the land in dispute is a necessity and that mere mentioning of the area is not enough, as the description and the extent of its boundaries must be proved. He cited JIMOH ATANDA v MEMUDU ILIASU (2012) 12 SCNJ 173 at 189, and argued that if the boundaries of the land is not established the claim for declaration will fail and will be bound to be dismissed. He referred to the cases of BILA AUTA v WILY IBE (2003) 15 NSCQR 109 at 124, ILONA v IDAKWO (2003) 14 NSCQR (Pt. 2) 101 at 1035, ADETORO v OGUNLEYE (2001) FWLR (Pt. 26) 1833 at 1841, and some others.
Learned Counsel pointed out that the Claimant (now 1st Respondent) had in his pleadings and in the deposition of the CW1 at page 105 to 107 of the Record of Appeal, given the location of the land in dispute as Tube Ipokia, which is bounded in the North by Tanloju Adansoado, in the South by Jimetho farmland, in the east and west by Posiade Vitonmeji farmland. He added that the evidence of CW2, Emmanuel Tanloju and CW4 Whanse Jimetho, show that theland in dispute is at Igbo Ifa which evidence is contrary to the averment stated in the Amended Statement of Claim at page 178 to 180 of the Record. Counsel further pointed out that the evidence of CW1 claimed that his ancestor bought the entire land of about 10 hectares from OlaideOgunjo however Exhibit A which is the document of purchase between Olaide Ogunjo and Tanloju Adesoade did not show the extent of the land sold to CW1’s ancestor. Counsel argued that the evidence given by CW1, CW2, CW3 and CW4 is not in line with the facts pleaded in paragraph 20 of the Amended Statement of Claim.
It was also submitted on behalf of the Appellant that the Claimant (now the 1st Respondent) is not relieved of the burden of proof of the identity of the land by shifting the burden on the Defendant who has not filed a counter-claim. It was argued that the 1st Respondent did not proffer oral or documentary evidence in proof of the identity of the land in dispute as there is nothing in Exhibit A to show that the entire land bought by Tanjolu Adansoedo from Olaide Agunjo is 10 hectares or that the 2 hectares claimed to have been granted to Votun was part of the 10hectares claimed to be in dispute. It was posited that the 1st Respondent had failed to prove the identity of the land and therefore was not entitle to customary right of occupancy over the land.
Arguing his issue 2, learned Counsel for the Appellant referred the Court to the five recognized methods by which the ownership of land can be established as stated in the case of IDUNDUN v OKUMAGBA(1976) 9 & 10 SC 227 at 246. He submitted that a Plaintiff seeking declaration of title to land must succeed on the strength of his case and not on the weakness of that of the Defendant. He relied on EZE & ORS v ATASIE & ORS. (2000) 2 NSCQR 1136 at 1145, CLAY INDUSTRIES v AINA (1997) 7 SCNJ 491 at 505 and AIYEDUN JULES v RAIMI AJANI (2001) FWLR (Pt. 45) 763 at 772. He argued that CW1 and CW2 had, in their Amended Statement of Claim at pages 178 to 180 of the Record, relied on the production of Exhibit A in proving title to the land and traced their root of title to Olaide Ogunjo, who allegedly migrated from Modo Idemu to settle on the land in dispute which he cultivated as a virgin land, and that the land in dispute was sold to the Claimant’s ancestor for thirty-five pounds in 1946. The entire land sold to Tanloju was alleged to be 10 hectares, from which 2 hectares was given to Votun as customary tenant. The claimant, having traced their root of title to Olaide Ogunjo, the onus is on them to establish such facts as to who founded the land, how the land was founded as well as the particulars of the intervening owners through whom he claims. He cited ALI v ALESHINLOYE (2000) 2 SCNQR 285 at 308. He argued that the Claimant failed to prove his root of title as Exhibit A is of no moment. He added that there were inconsistences in the testimonies in the evidence of the Claimant’s witnesses. He submitted that it was evident under cross-examination that CW1 and CW2 were not members of the Ogunjo family and did not know the history of the Ogunjo family their alleged predecessor–in-title. He pointed out that all the averments stated in the Amended Statement of Defence of the Defendants were not denied by the Claimant (now the 1st Respondent).
Learned Counsel argued that both parties gave conflicting and contradicting traditional history, but rather than to resolve the conflicting history by recent acts of ownership, the trial Court accepted the case of the Claimant as cogent and consistent without any basis. He further argued that the trial Court ignored the lack of sufficient evidence of the title of the alleged predecessor-in-title of the Claimant merely because the trial Court was of the opinion that the land was sold to the Claimant’s ancestor during the life time of the said Ogunjo. Counsel submitted that the Claimant had failed to discharge the burden of proof which the law placed on him as to entitle him to the judgment granted him by the trial Court.
In respect of his issue 3, learned Counsel for the Appellant submitted that the Claimant had failed to prove possession or his right to possession of the land in dispute through the 3rd Defendant (now 2nd Respondent). He pointed out that the Appellant had earlier obtained judgment in Exhibit B against the 2nd Respondent over the same land which judgment is still subsisting and has not been appealed against. He argued that the effect of Exhibit B is that the 3rd Defendant (now 2nd Respondent) was no longer in possession but the Defendant (now Appellant) is in possession. He contended that the law is that even a trespasser can sue another person who comes upon the land unless the other is the owner or shows a better right to possession. He cited UKWU EZE v ATASIE (2000) 2 SCNQR (Pt. 2) 1136 at 1148, and OJO v FIZAMA (2001) SCNQR 169 at 186. He argued that the claimant had failed to prove the part of the land allegedly trespassed upon by the Appellant. He contended that a party must be able to identify the land trespassed upon before his claims for damages for trespass can be considered. He added that a party claiming damages for trespass must show that at the time of the alleged trespass he was in possession of the land in respect of which trespass was committed. He relied on BABATOLA v OBA ALADEJANA (2001) 2 SCNQR 1019 at 1029, and urged the Court to resolve this issue in favour of the Appellant.
On the Appellant’s issue 4, learned Counsel submitted that the lower Court failed to properly evaluate the evidence and as a result it reached a decision which is perverse. He posited that the Court of Appeal has a duty to re-evaluate same, citing the cases of ALHAJI SUNMONU AGBABIAKA v OKANLAWON SAIBU (1998) 7 SCNJ 305 at 318,and NATHANIEL UDE v CHIMBO (1998) 8 SCNJ 23 at 40. He pointed out that the trial Court had in reviewing the evidence at page 164 of the Record stated that contrary to the averment in paragraph 2 of the Amended Statement of Defence there is nothing like Igbo Ifa in the description of the land in dispute pleaded in the Amended Statement of Claim. He argued that the trial Court had overlooked the evidence of CW2 under cross-examination at page 188 to 189 of the Record, where the CW2 stated that the location of the land in dispute is Hungo tho Igbo Ifa and how the place became Igbo Ifa. He equally pointed to the evidence of CW4 under cross-examination at page 191 of the Record where he stated that it was Tanloju, the ancestor of the 1st respondent who gave Jimotho his ancestor land at Igbo Ifa and that was how he got to Igbo Ifa. Learned Counsel also referred to pages 269 to 270 of the Record and argued that the trial Court had in considering the conflict in the evidence of the parties shifted the onus of proof on the Appellant who had made no counter-claim.
1ST RESPONDENT’S SUBMISSIONS ON HIS FOUR ISSUES:
On his issue 1, learned Counsel for the1st Respondent contended that it is the law that the identity of the land is central to the success of a claim for declaration of title to land which is sought by a Claimant. He referred to OLUSANMI v OSHASONA (1992) 6 NWLR (Pt. 245) 22 – 24. However, he added that an exception to that principle is where the land in dispute is well known to the parties, in which case proof of the identity of the land is not necessary. He cited AWOYOOLU v AWO (2006) 6 MJSC 128 at 132and MOTANYA v ELINWA (1994) 7 NWLR (Pt. 356) 252. He referred the Court to paragraph 3 of the Appellant’s statement on oath at page 56 of the Record, the Writ of Summons at page 7 of the Record and evidence of CW1 and CW2 under cross-examination at pages 189 and 191 of the Record and submitted that since the parties have agreed as to the identity of the land in dispute the fact that different names was ascribed to it does not make same fatal. He cited OJO v AZAMA (2001) 4 NWLR (Pt. 702) 57 at 62, per Onu, JSC.
Learned Counsel for the 1st Respondent submitted that the learned trial judge rightly found at page 265 of the Record that the Appellant failed to prove their boundary to the west at page 150 of the record, paragraph 40, but in their adopted statement on oath at page 57 of the record, paragraph 19, the Appellant gave evidence that the land in dispute is bounded to the west by Idosemo. Counsel argued that the learned judge had rightly found that facts not pleaded goes to no issue and discountenanced that evidence. He cited BRIDGET MOTOH v EMMANUEL MOTOH (2011) All FWLR (Pt. 384) 73 at 106.
Counsel also submitted that Exhibit B tendered by the Appellant does not constitute estoppel per rem judicatam. He relied on AMINU v HASSAN (2011) 1 MJSC 2 – 4, which stated the conditions for estoppel per rem judicata. He argued that the land in dispute is different from the land in dispute in Exhibit B. He pointed out that the Appellant had described the land in dispute as bounded to the North by the Elegbade family land, to the South by Abogun family land, to the West by Idosemo family land, and to the North by Obadina family land. But in Exhibit B, the land in dispute is bounded in the East, North and South by Imode–Idadu and North by Idosemo Family land. He submitted that the Appellant gave different boundaries in thiscase which is different from Exhibit B. He added that the boundaries given by the 1st Respondent in the Amended Statement of Claim at page 178 of the Record are also different from the boundaries in Exhibit B. He submitted that the learned trial judge rightly concluded that the plea of estoppel per rem judicatam cannot be raised by the Appellant because the boundaries raised in this suit are different from the boundaries in Exhibit B. He urged the Court to resolve this issue in favour of the 1st Respondent.
Turning to the 1st Respondent’s issue 2, learned Counsel cited UDENZE v NWOSU (2007) 8 MJSC (98-104), wherein the five methods of proving land ownership were restated. He submitted that in an action for declaration of title to land, the onus is on the Claimant to prove his case which he must do on strength of his own case and not on the weakness of that of the defendant. He cited IREJU NWOKIDU & ORS v MARK OKANU & ANOR (2010) All FWLR (Pt. 522) 1633 at 1165, para. B – C. He pointed out that the 1st Respondent relied on production of document of title and tendered Exhibit A in proof of title to the land in dispute. He added that the 1stRespondent traced their root of title to Olaide Ogunjo, an Anago man who migrated from Modo Idemu, a town after Tube to settle on the land which he cultivated as a virgin land. He argued that the land in dispute was sold to Tanloju Adansoedo, the 1st Respondent’s ancestor for thirty five pounds. He submitted that the trial judge righty found at pages 267 – 268 of the record that the 1st Respondent’s case was cogent and consistent compared to the case of the Appellant which was full of contradictions.
Learned Counsel contended that traditional evidence even where it does not come from the immediate family or community is clearly admissible under Section 66 of the Evidence Act. He argued that the 1st Respondent and his witnesses had led un-contradicted evidence of how Ogunjo founded the land which the learned trial judge rightly found at page 267 of the record that DW4 had under cross-examination at page 195 of the Record testified that Aruwa, their ancestor came from Opo and settled at Ipokia then settled at Imodu Idodu contrary to paragraphs 23 and 24 of the Statement of Defence at page 159 of the record that Aruwa came from Opo and settled at Ipokia and then settled at the land in dispute not Imodu Idodu mentioned by DW4 under cross-examination.
Counsel similarly argued that the trial judge rightly found at page 269 of the record that by paragraph 29 of the Amended Statement of Defence at page 161 of the record, the Appellant had pleaded that Aruwa begat Idowu who begat Akinro who begat Elegbede who begat the Appellant but in paragraph 33 of his statement on oath at page 58 of the record, the Appellant testified that Aruwa begat Akinro who begat Elegbede who begat him (the Appellant), thus stating that Aruwa is the father of Akinro contrary to the paragraph 29 of the Statement of Defence at page 161 of the record where it is stated that Aruwa is the grandfather of Akinro. Counsel submitted that it was all these contradictions which made the Appellant to concede at paragraph 5.9 of the Appellant’s Brief of Argument that the evidence of the Appellant and his witnesses was not consistent with the Appellant’s pleadings.
As for the 1st Respondent’s issue 3, Counsel submitted that on the claim for trespass, the learned trial judge rightly found that the 1stRespondent was in possession of the land in dispute through 2nd Respondent who was their tenant based on the principle in MOGAJI & ORS v CADBURY (FRY EXPORT)(1972) SC 97 and LADIPO v AJANI (1997) 8 NWLR (Pt. 517) 365. He argued that the learned trial judge correctly held at page 271 of the records that 2nd Respondent neither filed a Statement of Defence nor gave any evidence to deny that he was not the 1st Respondent’s tenant, and as such the evidence of 1st Respondent was unchallenged and uncontroverted. He added that the learned trial judge was also right when at page 272 to 273 of the record he granted an order for trespass and injunction against the Appellant, as the Appellant had admitted putting up eight rooms on the land in dispute. He submitted that where a party claims trespass to land, the party must establish that his possession on the land in dispute has been distorted or disturbed and damages can be awarded against trespasser even without proof of actual damage. He relied on AYANBOYE v BALOGUN (1990) 5 NWLR (Pt. 1551) 392, and submitted that the 1st Respondent proved that their possession was disturbed by the Appellant who put up eight rooms on the land.
Learned Counsel argued that an order of perpetual injunction was rightly granted against the Appellant so as to protect the right and interest of 1st Respondent over the land in dispute. He relied on SOMORIN & ORS v ADEKANBI & ORS (2012) All FWLR (Pt. 622) 1776 at 1798.
On the 1st Respondent’s fourth and final issue, learned Counsel contended that civil cases are decided on preponderance of evidence and balance of probabilities. He argued that the trial Court was bound to carefully consider the evidence of the parties to determine in whose favour the evidence preponderates. He cited WACHUKWU v OWUNWANNE (2011) 14 NWLR (Pt. 1266) 1 at 36 – 37. He pointed out that the Appellant had agreed that the land in-dispute is known as Igbo-Ifa and as such parties were agreed as to the identity of the land in dispite. He argued that the learned trail judge was correct when he found that Ogunjo died in 1950 and as such he could have sold the land in dispute to Tanloju in 1946 and there was no need to plead intervening owners after Ogunjo, since Ogunjo himself had sold the land in his lifetime.
APPELLANT’S REPLY:
In his Reply Brief, the Appellant argued that he had not at any time agreed as to the identity of the land in dispute. He pointed out that at paragraph 12 of the Amended Statement of Defence of the Claimant (1st Respondent), it was pleaded by the Claimant that the entire land measured 10 hectares, but contrary evidence was given by CW2 in his written deposition that the extent of the land was never stated in Exhibit A. He argued that the evidence of CW2 contained in the written deposition is speculative and cannot be relied upon. He submitted that the learned trial judge wrongly found at pages 207 and 268 of the record that the Respondent have pleaded in paragraph 2, 4, 6, 7, 8, 16 and 12 of the Amended Statement of Claim of how Ogunjo founded the land and sold same to Tanloju 1946 which was said to be 10 hectares. He argued that the metric system of hectares was only adopted in 1975 and this makes Exhibit A an invalid document.
Counsel further argued that the said Exhibit A is not a registered document. Citing OYENEYIN v AKINKUGBE(2010) MJSC (Pt. 11) and BILA AUTA v WILLY IBE (2003) 15 NSCQR (Pt. 2) 1011 at 1035andADETORO v OGUNLEYE (2001)FWLR (Pt. 74) 314. He submitted that the first duty of a claimant for title to land is to show clearly the area of land to which his claim relates, its exact boundaries and its extent. He added that this is not satisfied by merely tendering the survey plan of the land in dispute without adducing oral evidence as to the features on the land the boundaries or boundary neighbours. He relied on ROWLAND TUKURU & ORS V. CHIEF NATHAN SABI (2013) 3 SCNJ 212 at 233. He submitted that the lower Court has not properly evaluated the evidence adduced before it and urged this Court to re-evaluate and reverse the judgment of the trial Court.
RESOLUTION OF ISSUE 1:
Whether the Claimant (now the 1st Respondent) has proved the identity of the land being claimed by him with certainty as to be entitled to customary right of occupancy over the land in dispute.
It is a settled general principle of law that in a claim for declaration of title to land the Claimant has a duty to establish with credible evidence and with certainty the identity and precise area of the land which he claims. This duty is only obviated where the Defendant does not dispute the identity or location of the land in his Statement of Defence. In the case of NWOBODO EZEUDU &ORS v ISAAC OBIAGWU (1986) 2 NWLR (Pt. 21) 208, the Supreme Court, per Oputa, JSC stated this principle at page 220, when he held:
The identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.
See also ANYANWU & ORS v UZOWUAKA & ORS (2009) LPELR-515(SC), per Tabai, JSC at pages 34 – 35 para. D, OFFODILE v OFFODILE (2019) LPELR-47851(SC), per Abba-Aji, JSC at pages 23 – 26, para. B,AYANWALE v ODUSAMI (2011) LPELR-8143(SC), per Rhodes-Vivour, JSC at page 15, para. D and MOHAMMED v MOHAMMED (2011) LPELR-3729(CA), per Ogunwumiju, JCA (as he then was) at pages 30 – 31, para. E.
In the instant case, while the Appellant contended that the identity of the land in dispute was in issue, the 1st Respondent had argued that the parties were at ad idem as to the identity of the land in dispute and there was no burden on him to establish the identity of the said land. To resolve this issue, recourse must be had to the parties’ pleadings, since issues are determined from the state of pleadings of the parties. In other words, it is from the parties’ pleadings that the Court deciphers whether the parties have joined issues on a given point. See OYEKANMI v NEPA (2000) LPELR-2873(SC), per Uwaifo, JSC at page 18, para. C and BAMGBOYE v UNILORIN & ANOR (1999) LPELR-737(SC), per Onu, JSC at pages 30– 31, para. F. In other words, where a party makes a factual or legal claim and the adverse party denies it, the existence or truth of the factual or legal claim becomes an issue for the determination by the Court: OLANUDU & ANOR v TEMIYE & ORS (2001) LPELR-6989(CA), per Ibiyeye, JCA at pages 9 – 10, para. E.
In ascertaining the issue(s) to which parties have been joined, the Court must therefore, consider wholly the pleadings of the parties especially where no specific mention has been made of the paragraphs of the statement of claim that are being denied. See EKE & ORS v OKWARANYIA (2001) LPELR-1074(SC), per Uwaifo, JSC at page 21, para. D and UGOCHUKWU v COOPERATIVE & COMMERCE BANK LTD (1996) 6 NWLR (Pt. 452) 524 at 537.
In the instant appeal, a careful consideration of the pleadings of the parties shows that the 1st Respondent (Claimant) had in paragraph 2 of his initial Statement of Claim at page 8 of the Record of Appeal averred as follows:
2. The Claimant state (sic) that the land in dispute is situate at Igbo-Afa, Tube on both sides of the Tube/Ipokia Road and is bounded as follows:
In the North by Tanloju Adasinedo
In the South by Jimetho farmland
In the East by Posiade Vitonmenji
In the West by Posiade Vitonmenji
However, it is instructive to observe that the 1st Respondent (Claimant) had amended the Statement of Claim vide Amended Statement of Claim contained at pages 97 – 99 of the Record, where in paragraph 2 at page 97, he averred as follows:
2. The Claimant state (sic) that the land in dispute is situate along Tube/Ipokia Road and is bounded as follows: In the North by Tanloju Adasoedos land, in the East and West by Posiade Vitonmeji family land and in the South by Jimetho farm land.
However, in paragraph 2 of both their initial Statement of Defence at page 64 of the Record of Appeal, and their Amended Statement of Defence at page 159 of the Record of Appeal, the Appellants (1st and 2nd Defendants) averred as follows:
2. The 1st and 2nd Defendants (now referred to as the Defendant deny that the land in dispute is at Igbe-Afa, Tube as well as the purported boundaries of the land but state that the land in dispute is at Ipokia Road, Tube in Ipokia Local Government Area of Ogun State.
In considering a similar argument on whether the identity of the land in dispute was in issue which was made by the Appellants, the trial Court considered the state of pleadings of the parties as shown above and held at page 264 of the Record of Appeal as follows:
It would appear from the above that the 1st and 2nd Defendants have in their pleading joined issue with the Claimant over the identity of the land in dispute thereby necessitating the proving of same by the Claimant.
However, it is necessary to emphasize that, contrary to the averment in paragraph 2 of the Amended Statement of Defence, there is nothing like Igbo Afa in the description of the land in dispute pleaded in the Amended Statement of Claim as the same has with the amendment of the initial Statement of Claim, been deleted. What is more, Relief One of the Writ of Summons which equally made mention of Igbo-Afa has been superseded by Relief One in the Amended Statement of Claim. See EYA & ORS v OLOPADE & ANOR (2011) ALL FWLR (PART 584) 28 AT 34 PARAGRAPH D. Therefore, all evidence as well as submissions of both Counsel regarding Igbo Afa are of no moment.
It is therefore instructive that the learned trial judge had not only made the above observation and finding, he had also proceeded to consider the evidence led by the 1st Respondent in relation to the boundaries of the land and held that the 1st Respondent (Claimant) had led evidence to substantiate paragraph 2 of his Amended Statement of Claim through CW1, CW2, CW3 and CW4, which evidence was also supported by Exhibit A, as to the boundaries of the land in dispute. He then proceeded to compare same with the evidence led by the Appellants some of which he found to be outside the Appellants pleadings, while some he found to be inconsistent. Specifically, at page 265, the learned trial judge held that:
That is not all, while DW1 stated under cross-examination that Ogunjo Family shares boundary with the land in dispute, DW4, DW5 and DW6 stated that the Ogunjo Family does not share boundary with the land in dispute. This, no doubt shows in consistency in the case presented by the 1st and 2nd Defendants regarding the identity of the land in dispute. Therefore, I prefer the evidence of the Claimant on the boundaries of the land in dispute to that of the 1st and 2nd Defendants, and as such, Ihave no difficulty in holding that the Claimant has, with his consistent oral and documentary evidence, proved the identity of the land in dipute. What is more, while it is the case of the Claimant that the land in dispute is situate along Tube/Ipokia Road, the 1st and 2nd Defendants pleaded that the land is at Ipokia Road, Tube. Although the fact that parties even described the same land by different names does not make the identity of the land to be in dipute. But I cannot even see any difference between half a dozen and six regarding the names given to the location of the land in dispute by the Claimant and the 1st and 2nd Defendants in this case.
From the foregoing, it is evident to me that the above finding of the trial Court to the effect that the 1st Respondent had proved the identity of the land in dispute were borne from the pleadings and evidence led before the trial Court. It is trite that a party, like the Appellants herein, who complains against a finding of a trial Court, has a duty to show in what way the finding was improper, perverse or has occasioned miscarriage of justice: KIWO v STATE (2020) LPELR-53900(SC), per Muhammad, JSC at page30, para. D; and AMADI v A.G. IMO STATE (2017) LPELR-42013(SC), per Eko, JSC at page 12, para. B. In the instant appeal, the Appellants have failed to show how the decision of the trial Court that the 1st Respondent had proved the identity of the land in dispute was perverse to the evidence led before it. In consequence, I hereby resolve this issue against the Appellants.
RESOLUTION OF ISSUE 2:
Whether on a proper consideration of the totality of evidence led before the lower Court, the claimant (now the 1st Respondent) has discharged the burden of proof which the law placed upon him as to entitle him to judgment (distilled from grounds 6, 9, 10, 13 and 16).
It is settled law that a Claimant who seeks for a declaration of title to land had the burden of establishing with credible evidence his entitlement to such a declaration, which burden he must discharge on the strength of his own case and not on the weakness of the case of the Defendant, even as he may rely on the case of the Defendant where it supports his own case. Unless so established with credible evidence, such a declaratory relief is not granted even on admission by the Defendant. See BULET INT’L (NIG.) LTD. v OLANIYI & ANOR (2017) LPELR-42475(SC), per Kekere-Ekun, JSC at pages 29 – 30, para. E and MATANMI & ORS v DADA & ANOR (2013) LPELR-19929(SC), per Fabiyi, JSC at page 8, para. C.
There are also five recognized methods of establishing ownership of land. These are: (i) by traditional evidence; (ii) by production of authenticated document of title; (iii) by exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land; (iv) by acts of long possession and enjoyment of the land; and (v) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See IDUNDUN & ORS v OKUMAGBA (1976) LPELR-1431(SC), per Fatayi-Williams, JSC (as he then was) at pages 23 – 26, paras. D – D, ORIANZI v A.G. RIVERS STATE & ORS (2017) LPELR-41737(SC), per Galinje, JSC at pages 19 – 20, paras. A – A and SORONNADI & ANOR v DURUGO & ANOR (2018) LPELR-46319(SC), per Peter-Odili, JSC at pages 46 – 48, para. F.
In the instant appeal, the essential contention of the Appellants was that both parties have given conflicting evidence of traditional history and rather than resolve the conflict by recent ownership, the trial Court accepted the case of the Claimant as cogent without any basis.
Now, it is trite that where parties to a land dispute have given conflicting evidence of traditional history, the trial Court is enjoined to first try to see whether the conflict is resolvable on the evidence led. It is only where the conflict in the evidence of traditional history is unresolvable by the trial Court that it is enjoined to apply the rule in KOJO II v BONSIE (1957) 1 WLR 122 at 126, by using facts in recent years in order to resolve the impasse. See TAIWO & ORS v OGUNDELE & ORS (2012) LPELR-7803(SC), where the Supreme Court, per Rhodes-Vivour, JSC, held at pages 31 – 32, para. A that:
“Where the traditional history of both parties are in conflict which usually is the case, but the trial Judge is able to resolve the conflicts, there would be no need to resort to the Rule in Kojo II v. Bonsiesupra. Where on the other hand, the traditional history are in conflict and each has much weight, i.e. they both appear reliable and probable, it would then be the duty of the judge to resolve the impasse by reference to facts in recent years by compelling evidence. The rule is only applicable in a case where traditional evidence is inconclusive.”
In the present appeal, the printed record shows that the learned trial judge had from pages 250 to 258 thoroughly reviewed the evidence of the witnesses of each of the parties before holding at pages 268 – 270 of the Record of Appeal that:
“The Claimant led evidence in support of the above averments through CW1 and CW2 in their evidence in chief. Also, these two witnesses as well as CW3 and CW4 re-affirmed the facts in paragraphs 3, 4, 5, 6, 7 and 8 of the Amended Statement of Claim under cross-examination. Furthermore, since the sale which the Claimant claimed was effected over the land between Ogunjo and Tanloju Adansoedo was a sale under native law and custom, document is unknown thereto. See MADAM BINTU GANIYU & ORS v MR. G. O. ONIBONOJE (2003) FWLR (PART 146) 1009 AT 1025 PARAGRAPH A. However, the Claimant even tendered the Purchase Receipt which was admitted as Exhibit ‘A’.”
On the part of the 1st and 2nd Defendants, they pleaded in paragraph 4 of their Amended Statement of Defence as follows:
“4. The Defendants in answer to paragraph 4 of the Statement of Claim deny that Olaide Ogunjo migrated from Modo Idemu but came with his father Oshoi from Idagbe and originally stayed at Imodo Idoseyi Idowu which also belong to their Elegbede Family.”
DW1 and DW5 gave evidence in support of the above averment in their respective evidence in chief. However, contrary to the above, DW1 who is a descendant of Ogunjo stated interalia under cross-examination as follows:
“Ogunjo was born in Imodo Idoshoi.”
As if that is not enough, the 1st and 2nd Defendants themselves pleaded conflicting facts relating to the name of the father of Ogunjo because while the name of Ogunjo’s father was stated in paragraph 4 and some other paragraphs of the Amended Statement of Defence to be Oshoi, paragraph 33 thereof reads thus:
“Oshopi begat Ogunjo who begat Olayide (m) Eboda (f) Oke (m), Ibe (m), Ogo (m) andAyesi (f) while Olajide begat Okogbo.
That apart, the 1st and 2nd Defendants pleaded in paragraphs 23 and 24 of their Amended Statement of Defence as follows:
“23. The Defendants state that the dispute forms part of the large expanse of land originally founded and settled upon very many years ago by their ancestor, one Aruwa who migrated from Opo in the present Kwara State.
24. The Defendants state that when Aruwa left Opo he had a brief stay at Idosemo in Ipokia and left for Isofin but subsequently left Isofin and first settled on the land in dispute at Ipokia Road, Tube, which was then a thick virgin forest.”
While DW5 in his evidence in chief testified in accordance with the above averment, DW4 who is a member of the Elegbede Family gave a contradictory evidence when he stated under cross-examination as follows:
“Aruwa came from Opo, he settled at Idosemo Ipokia. It was from Idosemo Ipokia that Aruwa came to settle at Imodo Idodu… Between Imodo Idodu village and Tube town there are two villages known as Gboje and Odepata. The land in dispute is at Tube.”
That is not all, the 1st and 2ndDefendants pleaded their genealogy in paragraph 29 of their Amended Statement of Defence thus:
“29. The Defendants state that Aruwa begat Idowu while Idowu begat Akinro but Akinro begat Elegbede and Jacob Elegbede, the 1st and 2nd Defendants.”
The effect of the above averment is that Akinro is the father of the 1st and 2nd Defendants. However, DW5 stated in his evidence-in-chief thus:
“That Aruwa begat Akinro but Akinro begat Elegbede who begat myself and the 2nd Defendant.”
thereby stating that Aruwa is not the father of the 1st and 2nd Defendants but their grandfather. Also contrary to the averments in paragraph 29 of the Amended Statement of Defence which shows that Aruwa was the grandfather of Akinro, DW5 in his evidence-in-chief reproduced above stated that Aruwa was the father of Akinro and he was even supported by DW6 who stated under cross-examination that:
“Aruwa begat Akinro who begat Elegbede.”
It is therefore crystal clear that while the case of the Claimant, as shown earlier, is cogent and consistent, the case of the 1st and 2nd Defendants is not cogent, not consistent and is full of material contradictions. I therefore prefer the case of the Claimant to that of the 1st Defendant and I hold that the Claimant has proved his entitlement to the declaration of title sought.”
From the above holding of the learned trial judge, it is clear that he went to a great length of analyzing the pleadings and evidence of the parties in resolving the conflicting traditional evidence led by the parties. It is pertinent to state that the evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court which has the advantage of seeing, hearing and observing the demeanour of the witnesses. See EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, para. C and OKEOWO v A.G. OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6 – 7, para. E. An appellate Court will therefore, not interfere with findings of fact by a trial Court unless it is shown that the trial Court failed to properly evaluate the evidence before it or its finding thereon is perverse. See BELLO v FRN (2018) LPELR-44465(SC), per Bage, JSC at pages 13 – 17, para. A and IGBI & ANOR v STATE (2000)LPELR-1444(SC), per Ayoola, JSC at pages 14 – 15, para. E.
The pleadings and evidence of the parties on the printed record of appeal clearly supports the above holding of the learned trial judge and his preference of the traditional evidence led by the 1st Respondent (Claimant), which, in my view, is well-reasoned on the pleadings and evidence led by the parties. The trial Court having appraised the facts and evaluated the evidence before it, this appellate Court cannot interfere with same merely to substitute its own views. See OLATUNDE & ANOR v ABIDOGUN & ANOR (2001) LPELR-2576(SC), per Ejiwunmi, JSC at pages 15 – 16, para. C and GAJI & ORS v PAYE (2003) LPELR-1300(SC), per Edozie, JSC at pages 14 – 15, para. G. In consequence, this issue is also resolved against the Appellants.
RESOLUTION OF ISSUES 3 AND 4 TOGETHER:
ISSUE 3:
Whether the claimant (now the 1st Respondent) has proved possession or his right to possession of the land in dispute as to be entitle to the grant of damages for trespass and or an order of injunction.
ISSUE 4:
Whether the lower Court has properly and discreetly considered and evaluated the evidence of both parties before arriving at its decision.
The convenient starting point in resolving these two issues is by pointing out that the claim before the trial Court, as contained in the Amended Statement of Claim at pages 97 – 99 of the Record of Appeal, was for a declaration of title, forfeiture of customary tenancy, damages for trespass and perpetual injunction. (See particularly page 99 of the Record). It is settled law that in a claim for damages for trespass where title is in issue, such as in the instant case, possession is ascribed to the party who could show a better title. In other words, the success of such a claim is at the instance of the party who proves a better title.
In AYANWALE v ODUSAMI (2011) LPELR-8143(SC), the Supreme Court, per Rhodes-Vivour, JSC reiterated this trite position at page 21 para. E, when the Apex Court held as follows:
“Proof of ownership is prima facie proof of possession. The presumption being that the person with title to the land is in possession. Once the Court finds that a party has a better title to the land, a claim for trespass and injunction are easily sustained, and the injunction pronounced is of the perpetual type that is for all time.”
See also EMESIANI v EMESIANI (2013) LPELR-21360(CA), per Agim, JCA (as he then was) at page 56, para. E.
Therefore, in a claim for damages for trespass and injunction, title has to be resolved first before damages for trespass and injunction can be determined. See ONYERO & ANOR v NWADIKE (2011) LPELR-8147(SC), per Ngwuta, JSC at page 39, para. E and ODUNZE & ORS v NWOSU & ORS (2007) LPELR-2252(SC), per Onnoghen, JSC (as he then was) at page 70, para. B.
While considering issue 2 above, I had pointed out that from the printed record of this appeal, the parties had each relied on evidence of traditional history in order to establish their claim to the ownership of the disputed land, and in its findings the trial Court had resolved the conflicting evidence of traditional history and preferred the evidence of the 1st Respondent and held that he had established his claim to a declaration of title. After a thorough examination of the printed record of appeal, I had held that the finding of the learned trial judge and his preference of the evidence of traditionalhistory led by the 1st Respondent over that of the Appellants is supported by the pleadings and evidence on record. Since the 1st Respondent had established his entitlement to a declaration of title over the said land, possession of the said land is therefore, ascribed to him. See ORLU v GOGO-ABITE (2010) LPELR-2769(SC), per Adekeye, JSC at page 36, para. D and AKINTERINWA v OLADUNJOYE (2000) LPELR-358(SC), per Karibi-Whyte, JSC at page 36, paras. C – C.
Suffice it for me to observe that on the third issue relating to the claim for trespass and injunction, the learned trial judge had duly appraised the evidence led by the parties and held at pages 272 – 273 as follows:
“It is instructive to note at this stage that in proving trespass against the 1st and 2nd Defendants, the Claimant led evidence through CW1 and CW2 who in their evidence-in-chief gave evidence in support of the averments in paragraphs 12, 13, 14 and 15 of the Amended Statement of Claim by inter alia stating that the 1st and 2nd Defendants trespassed upon the land and started to build upon part of the land granted to the 3rd Defendant’s ancestor. However, the 1st and 2ndDefendants have in paragraph 18 of the Amended Statement of Defence stated that their Family built an eight room shop on the land and evidence was led in support thereof through DW5. And having found that the Claimant has proved his entitlement to declaration of title over the land in dispute, the averment in paragraph 18 of the Amended Statement of Defence and the evidence led thereon amounted, in my view, to an admission of trespass and I so hold. The Claimant is, in view of the foregoing, entitled to damages against the 1st and 2nd Defendants for trespass which damages will be assessed and/or awarded at the end of this judgment.
In coming to this conclusion, I am not unmindful of the submissions of the 1st and 2nd Defendants’ Counsel that the land trespassed upon has not been identified. I only need o state that this has been dealt with by this Court in this judgment in the determination of whether the Claimant had proved the identity of the land in dispute…
Now since the Claimant has been found to be entitled to declaration of title to the land in dispute and the 1st and 2nd Defendants have been found to be in trespass while the 3rdDefendant has been found to be liable to an order of forfeiture, it is only proper that an order of perpetual injunction be granted against the Defendants so as to protect the right and/or interest of the Claimant over the land in dispute and I so hold.”
As stated earlier, this Court, where a trial Court had duly appraised the facts and evaluated the evidence before it, an appellate Court has no business interfering with same merely to substitute its own views. See OLATUNDE & ANOR v ABIDOGUN & ANOR (supra) and GAJI & ORS v PAYE (supra). An appellate can only interfere where the trial Court is shown to have improperly evaluated the evidence or made a perverse finding. See BELLO v FRN (supra) and IGBI & ANOR v STATE (supra). The Appellants herein have failed to show how the above findings of the trial Court was improper or perverse to the pleadings and evidence led before that Court. It is for all the above reasons that I also resolve issues 3 and 4 against the Appellant.
Having resolved all four issues in this appeal against the Appellant, the fate of this appeal is crystal clear. It is devoid of any merit. The appeal is accordingly hereby dismissed and the judgment of the trial Court delivered on 24th March, 2015 in Suit No. HCL/2/2011: TANLOJU PETER (for himself and on behalf of the Tanloju Family) v. JAMES ELEGBEDE; JACOB ELEGBEDE & NUPO PAKO, is hereby affirmed. Cost of N100,000.00 is hereby awarded in favour of the 1st Respondent.
YARGATA BYENCHIT NIMPAR, J.C.A.: I have had a preview of the lead judgment of my Lord, ABBA BELLO MOHAMMED, JCA which has just been delivered. I am in agreement with the lucid reasoning and resonating conclusion that the instant appeal is devoid of merit and that same should be dismissed. In my humble view, proof of identity of a piece of land in dispute is of utmost importance if any success is to be attained in any land dispute. A plaintiff seeking the declaration of title has a cardinal duty to show, with certainty, the area of land being claimed and to which he wants the order of Court to relate to, failure to do so, the entire case must fail. See BARUWA V. OGUNSOLA 4 WACA 159, ELIAS V. OMOBARE (1982) 5 S.C. 25, AWERE V. LASOJU (1975) N.M.L.R. 100 and SANGOSANYA V. SALAWU (1975) N.M.L.R. 27.
I have read the evidence led in relation to the identity of the land in dispute and by the evidences of CW1, CW2, CW3 and CW4 all point to the same land and also supports Exhibit A (purchase document). What is of utmost importance and indeed, the emphasis in a case of this nature is that the parties must be ad idem on the same area of land even when they are called by different names for various reasons. See AROMIRE V. AWOYEMI (1972) 1 ALL NLR (PT. 1) 101 and MAKANJUOLA V. BALOGUN (1989) 3 NWLR (PT. 108) 192. In the instant case, it is very clear that from the evidence led, the 1st Respondent had proved the identity of the land in dispute.
I agree that this appeal is unmeritorious. I abide by all other consequential orders made in the leading judgment including the order as to costs.
FOLASADE AYODEJI OJO, J.C.A.: I had the opportunity to read in draft the lead judgment just delivered by my learned brother, ABBA BELLO MOHAMMED, JCA and I agree that the instant appeal lacks merit and should be dismissed.
It is trite that where pleadings are amended, what stood before the amendment is no longer material to determine the live issues between the parties, the amendment speaks from the date the original pleading was filed. See UZODINMA VS. IZUNASO (NO. 1) (2011) 17 NWLR (PT. 1275)28, JATAU VS. AHMED(2003) 4 NWLR (PT. 811)498, ILODIBIA VS. NIGERIAN CEMENT COMPANY LIMITED (1997) 7 NWLR (PT. 512) 174.
In this appeal, the 1st Respondent, while before the lower Court amended his Statement of Claim. I note particularly, that at paragraph 2 of the original Statement of Claim he stated that the disputed land is at Igbo-Afa, Tube on both sides of the Tube/Ipokia Road. He went further to state the boundaries. In the course of proceedings, he sought and obtained leave to amend his pleadings. Upon the said amendment, he averred at paragraph 2 of the Amended Statement of Claim that the land in dispute is situate along Tube/Ipokia Road and also provided the boundaries.
The Appellants also amended their Statement of Defence but in so doing appears not to have taken cognizance of the description given to the disputed land in the Amended Statement of Claim. At paragraph 2 of their Amended Statement of Defence, they denied that the land in dispute is at Igbo-Afa, Tube. They also denied the boundaries pleaded by the 1st Respondent. They however did not stop there. They proceeded at the same paragraph to aver that the land in dispute is at Ipokia Road, Tube in Ipokia Road, Tube in Ipokia Local Government Area of Ogun State.
The effect of the amendment made to the pleadings is that while the Respondents state that the disputed land is situate along Tube/Ipokia Road; the Appellants state that it is at Ipokia Road. On this point, the learned trial Judge, at page 265 of the printed Record rightly found that the fact that parties described the same land by different names does not make the identity of the land to be in dispute. The finding made by the learned trial Judge represents the settled position of law as had been laid down in a long line of decisions including ATANDA VS. ILIASU (2013) 6 NWLR (PT. 1351)529, AKINTERINWA VS. OLADUNJOYE (2000) 6 NWLR (PT. 659)92, EBEVUHE VS. UKPAKARA (1996) 7 NWLR (PT. 460)254. In OGBU VS. WOKOMA (2005) 14 NWLR (PT. 944)118 AT 139, PARAGRAPHS A-D, the Supreme Court, per Akintan, JSC held as follows:
“The law is also settled that where the parties, by the evidence adduced both oral and documentary, are ad idem on the identity of the land in dispute, the fact that different names, are given to the land or the area where the land is located is called different names is not fatal to the party claiming such land. See Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192, (1989) 2 N.S.C.C. 294. In the instant case, all the witnesses that testified told the Court that they know the land in dispute. The plaintiff also tendered a deed of conveyance (Exhibit 3) which contains the survey plan of the land and the houses he was claiming were shown on the survey plan. The identity of the land in dispute was therefore not in issue and the fact that the defendant gave the land another name cannot derogate, alter or change the identity of the land in dispute.”
It is clear upon a consideration of the state of the pleadings and settled position of law that the identity of the disputed land was not in issue between the parties. This notwithstanding, I completely agree with my learned brother that the Appellants failed to show that the conclusion reached by the lower Court to wit: that 1st Respondent proved the identity of the disputed land is perverse.
In light of the above and for the more detailed reasons contained in the lead judgment, I too find no merit in this appeal and it is also dismissed by me. I abide by the consequential orders made in the lead judgment.
Appearances:
Chief L. O. Ogunleye For Appellant(s)
Olumide Akinsanya, Esq. – for 1st Respondent For Respondent(s)
