FADIPE & ORS v. NWAKA & ORS (2022)

FADIPE & ORS v. NWAKA & ORS

(2022)LCN/16545(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/IB/M293/2016

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1. RAFIU AKINTUNDE FADIPE 2. SUNDAY AKINBIYI FADIPE 3. JOHN AKINBIYI FADIPE 4. FEMI AKINBIYI FADIPE APPELANT(S)

And

1. MR. REUBEN NWAKA 2. CHIEF ARIYO OLUJINMI 3. CHIEF (MRS.) ABIODUN OLUJIMI 4. REFLEX WEST CHASE OIL AND GAS 5. REFLEX HOTEL 6. ALHAJI OYEBANJO 7. DR. ABULU 8. DR. ANYANTI 9. MR. AITOJE RESPONDENT(S)

RATIO:

A COUNTER CLAIM IS A SEPARATE, INDEPENDENT AND DINSTINCT ACTION

It is further the law that a Defendant who files a Counter Claim is like the Claimant in the main action and has a duty to prove his Counter Claim by credible evidence. A Counter Claim is a separate, independent and distinct action. See PADA VS. GALADIMA (2018) 3 NWLR (PT. 1607)436; OROJA VS. ADENIYI (2017) 6 NWLR (PT. 1560)138; RABIU VS. ADEBAJO (2012) 15 NWLR (PT. 1322)125 AND JERIC NIGERIA LTD VS. UNION BANK OF NIGERIA PLC(2000) 15 NWLR (PT. 691)447. FOLASADE AYODEJI OJO, J.C.A.

THE LAW IS THAT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE THE EVIDENCE PRESENTED BY THE CONTENDING PARTIES

THE METHODS BY WHICH THE OWNERSHIP OF LAND MAY BE PROVED

It is trite that ownership of land may be proved by any of the following five methods.
1. By traditional evidence;
2. By production of document of title duly authenticated and executed;
3. By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of true ownership;
4. By acts of long possession and enjoyment;
5. 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 VS. OKUMAGBA (1976) 9-10 SC 227; IFEDIORA VS. OKAFOR (2019) 18 NWLR (PT. 1698)322;FALEYE VS. DADA (2016) 15 NWLR (PT. 1534) 80; ISEOGBEKUN VS. ADELAKUN (2013) 2 NWLR (PT. 1337)140; MADU VS. MADU (2008) 8 NWLR (PT. 1083)296.
The law is further settled that all the five methods do not need to be present before proof of ownership will be deemed to have been established. Proof by only one of the methods will suffice. FOLASADE AYODEJI OJO, J.C.A.

THE BURDEN OF PROVING THAT HE HAS BEEN DIVESTED OF THE OWNERSHIP OF IT IS ON THE OTHER PARTY ONCE IT IS PROVED THAT THE ORIGINAL OWNERSHIP OF A PROPERTY IS IN A PARTY

The rule is that once it is proved that the original ownership of a property is in a party, the burden of proving that he has been divested of the ownership of it is on the other party. See OKOYE VS. NWANKWO (2014) 15 NWLR (PT. 1429) 93; ONOBRUCHERE VS. ESEGINE (1986) 1 NWLR (PT. 19)799; EZEUDU VS. OBIAGWU (1986) 2 NWLR (PT. 21)208; BELLO ISIBA & ORS VS. J. T. HANSON & ANOR. (1967) 1 ALL N.L.R. 8 AND SAMSON OCHONMA VS. ASIRIM UNOSI (1965) N.M.L.R. 321. FOLASADE AYODEJI OJO, J.C.A.

WHERE A PARTY PLEADS AND RELIES ON PARTICULAR ROOT OF TITLE IN A LAND DISPUTE HE HAS A DUTY TO PROVE IT SATISFACTORILY

The law is further settled that where a party pleads and relies on a particular root of title in a land dispute he has a duty to prove it satisfactorily. See ADAMU VS. NIGERIAN AIRFORCE (2022) 5 NWLR (PT. 1822)159; YUSUF VS. KODE (2002) 6 NWLR (PT. 762)231 ANDADISA VS. OYINWOLA (2000) 10 NWLR (PT. 674)116. FOLASADE AYODEJI OJO, J.C.A.

THE SETTLED PRINCIPLE OF LAW ON SALE OF FAMILY LAND WITHOUT THE CONSENT OF THE HEAD OF THE FAMILY IS VOID AB NITIO

The settled principle of law on sale of family land is that sale of family land without the consent of the head of the family is void ab nitio.
See OFFODILE VS. OFFODILE (2019) 16 NWLR (PT. 1698)189; BABAYEJU VS. ASHAMU (1998) 9 NWLR (PT. 567)546; SALAKO VS. DOSUNMU (1997) 8 NWLR (PT. 517)371 AND AKINFOLARIN VS. AKINNOLA (1994) 3 NWLR (PT. 335)659 AT 682.
It follows therefore that sale of the disputed land to the 1st Respondent without the consent of the family head was void ab initio and no valid interest was transferred to him. FOLASADE AYODEJI OJO, J.C.A.

THE SETTLED LAW ON WHERE A PARTY PLEADS SALE OR CONVEYANCE AS HUS ROOT OF TITLE

The law is settled that where a party pleads sale or conveyance as his root of title, he either succeeds in proving the sale or conveyance or he fails. The 1st Respondent who has failed to prove the sale pleaded and on which he relies to prove his title to the disputed land cannot turn round to rely on acts of ownership or acts of possession. See OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849)326; FASORO VS. BEYIOKU (1998) 2 NWLR (PT. 76)263 AND BALOGUN VS. AKANJI (1988) 1 NWLR (PT.70) 301. FOLASADE AYODEJI OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the judgment of the Ogun State High Court sitting at Ota Judicial Division in SUIT NO. HCT/172/98 BETWEEN RAFIU AKINTUNDE FADIPE & 3 ORS. (For themselves and on behalf of the Fadipe Akobileu Family) AND MR. REUBEN NWAKA & 9 ORS delivered on the 26th of March 2015.

By an Amended Statement of Claim filed on the 11th of November 2013, the Appellants as Claimants claimed against the Respondents as follows:
“23. WHEREOF Claimants claim from Defendant as follows:
(i) A DECLARATION that the Defendant herein is a trespasser to Fadipe Akobileu land lying, being and situate at Asore Area of Akute, Ogun State.
(ii) A DECLARATION that the Defendant herein is a trespasser to Fadipe Akobileu land lying, being and situate at Asore Area of Akute, Ogun State.
(iii) FIVE MILLION NAIRA (N5,000,000.00) general damages for trespass by the Defendant to the Plaintiff’s family land Asore, Akute, Ogun State.
(iv) PERPETUAL INJUNCTION restraining the Defendant either by himself, his agents, assigns or privies from further acts of trespass to Fadipe Akobileu Family Land at Asore Akute, Ogun State.

The 1st Respondent entered appearance and caused a Statement of Defence and Counterclaim to be filed on his behalf. By an Amended Statement of Defence and Counterclaim filed on 31st January, 2014, the 1st Respondent Counterclaimed as follows:
“15. The Defendant Counter claims against the Claimants and the parties joined to this action as follows:
1. A DECLARATION that the Defendant is the person entitled to the right of occupancy in respect of the parcel of land lying and situate at and along Ajuwon Akute Road, Asore near Akute in Ifo Local Government Area of Ogun State. Particularly described in Survey Plan No. OGK/0661-E/81/ dated 20th March, 1981, MAK 349/76 in Deed of Conveyance of 10/1/77.
2. DAMAGES:
(i) GENERAL DAMAGES: N3,000,000 (Three Million Naira) only as general damages for the act of trespass, loss of income over the years and nuisance committed by the claimants against the property of the Defendant.
(ii) SPECIAL DAMAGES: N1,980,000 (One Million, Nine Hundred and Eighty Thousand Naira) being special damages against the Claimants.
PARTICULARS OF SPECIAL DAMAGES:
a) Demolition of office building, cutting and felling of nine(9) mango trees with fruits 225,000.00.
b) Destruction of 250 beds of green vegetable at N400.00 per bed 100,000.00
c) 3,000 stems of banana with Plantain at N350.00 1,050,000.00
d) One farm house valued at 125,000.00
e) One office building valued at 250,000.00
f) One electrical workshop valued at 25,000.00
g) One panel beater’s workshop valued at 25,000.00
h) One painter’s workshop valued at 25,000.00
i) One machine workshop valued at 35,000.00
j) One 3 phase NEPA meter valued at 120,000.00
Total Amount 1,980,000.00
3. POSSESSION OF THE LAND IN DISPUTE FROM THE CLAIMANTS AND ALL PERSONS JOINED IN THIS SUIT AND WHOSOEVER UNLAWFULLY ACQUIRED AND THROUGH THE CLAIMANTS.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the claimants, their servants, assigns and or anyone whosoever acquired part of the land in dispute through the claimant from further committing acts of trespass against the Defendant’s land.

The case went on to trial. At the end of the day, the learned trial Judge in a considered judgment dismissed the claim of the Appellants and granted the 1st Respondent’s Counterclaim in part. He held as follows:
“In conclusion, the two issues for determination are resolved in favour of the Defendant and against the Claimants. Accordingly, I enter judgment in favour of the Defendant in the following terms:
(i) All the Claimants claims endorsed in Paragraph 23 (i) – (iv) both inclusive of their Amended Statement of Claim have not been proved. They are all hereby dismissed.
(ii) The Defendants counter claim succeeds in part. Judgment is entered in favour of the defendant/Counter Claimant against the Claimants and the 2nd – 10th third parties as follows:
a) I declare that the defendant is the person entitled to the grant of the right of occupancy in respect of the parcel of land lying and situate at and along Ajuwon Akute Road, Asore near Akute in Ifo Local Government Area of Ogun State particularly described in Survey Plans No:OGK/066-E/81 dated 20th March 1981 and MAK349 in Deed of Conveyance of 10/1/77.
b) I award the sum of N100,000:00 (One Hundred Thousand Naira) jointly and severally against the Claimant and the 2nd – 10th, third parties being general damages for their acts of trespass on the aforesaid defendants land.
c) The defendant’s claim for special damages was not proved and it is therefore dismissed.
d) The claim for possession is granted. Accordingly, the Claimants and the 2nd – 10th third parties shall forthwith deliver up possession of the various plots of land being illegally held by them within the defendant’s land as delineated in Exhibit 3.
e) An order of perpetual injunction is also granted restraining the Claimants their servants, assigns and anyone who acquired part of the land in dispute from them, from committing further acts of trespass on the defendant’s aforesaid land.
f) I award costs in the sum of N100,000 (One Hundred Thousand Naira) against the Claimants and the 2nd – 10th Third Parties jointly and severally and in favour of the defendant/Counter Claimant.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal with 14 Grounds on the 19th of May, 2015. The Record of Appeal transmitted to this Court on the 7th of October 2016 was deemed duly transmitted on the 15th of March, 2018. In line with the rules of this Court, parties filed and exchanged Briefs of Argument. The extant Briefs of Argument are:
1) Amended 1st- 4th Appellants’ Brief of Argument settled by Olanrewaju Aiyedun filed on 22nd June, 2021 was deemed properly filed on 23rd of June, 2021.
2) Amended 1st Respondent’s Brief of Argument settled by Chief Henry Akunegbu filed on 4th of December, 2019 was deemed properly filed on 23rd of June, 2021.
3) Appellants’ Reply Brief filed on 1st November, 2021 was deemed properly filed on 17th January, 2022.

At the hearing of this Appeal on the 6th of April 2022, learned counsel on both sides adopted their respective Briefs of Argument as their arguments in support of their viewpoints in urging us to allow/dismiss the Appeal.

Learned Counsel to the Appellants identified the following three issues as the issues for determination in this appeal:
1) Whether the learned trial Judge of the lower Court properly and adequately discharged his duty to evaluate evidence before him at the trial of this matter.
2) Whether the trial Court made errors of law on the face of the record which put together affected the root of the subject matter of this suit thus occasioning a miscarriage of justice.
3) Whether the Judgment at the trial Court was against the weight of evidence.

For his part, learned counsel to the 1st Respondent distilled the following two issues for determination:
1. Whether the Court below unquestionably and ably evaluated the evidence before him in reaching the decision in this case the subject of the present appeal.
2. Whether there is any error at all on the face of the record in this case.

I wish to note that the 2nd – 9th Respondents who were duly served did not file any processes in this Appeal.

I have carefully examined the issues formulated for determination by the Appellants and the 1st Respondent respectively. They are all centered around the evaluation of evidence by the lower Court. It is for this reason that I am of the view and I so hold that issue No.1 formulated by the 1st Respondent covers the ground and would suffice in the effective determination of this appeal. I shall therefore determine this appeal on the 1st Respondent’s Issue No. 1 which is:
“Whether the Court below unquestionably and ably evaluated the evidence before him in reaching the decision in this case the subject of the present appeal.”

Arguing his issue No.1, learned counsel to the Appellants referred us to the finding made by the learned trial judge and the conclusion reached by him that evidence given by CW1 is at variance with the Appellants’ pleading to submit that the learned trial Judge did not do justice to the evidence placed before him.

He further referred us to the evidence of CW2, CW3 and CW5 to argue that the learned trial judge did not do a proper evaluation of the evidence placed before him. On this submission he relied on the case of AJAO VS. ALAO (1986) 5 NWLR (PT. 45) 814.

On his issue No.2, Appellants’ Counsel submitted that contrary to the finding made by the learned trial judge, the case of the Appellants is not that their ancestors settled on the disputed land but it is that they were granted a certain portion of the land. He submitted that the Appellants Witnesses who used the words “grant” and “settlement” interchangeably are not legally skilled and should not have been penalized for their use of the words.

He argued that the lower Court was in error and which error occasioned a miscarriage of justice when he applied the case of YUSUF VS. ADEGOKE (2008) 40 WRN 1 on the distinction between the words “grant” and “settlement” against them. He craved in aid of his submission the cases of DUKE VS. AKPABUYO LOCAL GOVERNMENT (2005) AFWLR (PT. 294) 559 AND SHELL DEVELOPMENT COMPANY VS. OTOKO (1990) 6 NWLR (PT. 159)696.

On whether the judgment of the lower Court was against the weight of evidence, learned counsel to the Appellants submitted that the evidence given by the Appellants was overwhelming and that the evidence of the 1st Respondents and his Witnesses was heavily discredited under cross examination. He quoted extensively from the decision of this Court in the case of UDO VS. OKUPA (1991) 5 NWLR (PT. 191) 365 on the duty of a trial Judge in evaluation of evidence. He gave instances of where according to him the trial judge failed to do a proper evaluation of the evidence before him. He submitted and urged us to so hold that the Appellant discharged the legal and evidential burden placed on them and that the burden of proof shifted to the 1st Respondent who failed in his duty. He relied on Section 133(2) of the Evidence Act and the case of ATANDA VS. AJANI (1989) 3 NWLR (PT. 111)511 and finally urged us to allow the Appeal and set aside the judgment of the lower Court.

For his part, learned counsel to the 1st Respondent argued that the trial judge did a proper evaluation of the evidence before him and applied the law before arriving at his decision. He narrated the procedure followed by the trial Judge in his judgment to submit it is the template of a valid judgment. He submitted further that once a trial Court carries out its duty satisfactorily, the Appellate Court is left with no option than to affirm the decision. He cited the cases of ANYANWU & ORS VS. UZOWUAKA & ORS(2009) 10 SCM 1-202; MOGAJI VS. ODOFIN (1978) 4 SC 91; ADEYEYE VS. AJIBOYE (1987) 3 NWLR (PT. 61)432; ONWUKA VS. EDIALA (1989) 1 NWLR (PT. 96)182; AKINTOLA VS. BALOGUN (2000) 1 NWLR (PT. 642)532; BASSIL VS. FAJEBE (2001) 11 NWLR (PT. 725) 592 AND AKIBU VS. OPALEYE (1974)11 SC 139 to support his submission.

He submitted further that the Appellants failed to show how the findings made by the lower Court was perverse. His contention is that the learned trial Judge reviewed the evidence of parties, evaluated same before reaching his conclusion.

On the finding of the trial Judge that Appellants’ Witnesses used the words “gift” and “settlement” interchangeably in their bid to establish their claim to the land he submitted the lower Court was right when it applied the case of YUSUF VS. ADEGOKE (supra). He submitted that the Appellants failed to prove their root of title and urged us to so hold.

It is further his contention that the 1st Respondent proved his Counterclaim. That he tendered his title documents in evidence in support of his Counterclaim, pleaded the traditional history of how Fadipe settled on the disputed land and how same devolved on his children. He submitted the lower Court preferred the evidence of traditional history given by the 1st Respondent and that the 1st Respondent established acts of ownership and long possession which are recognised ways of proving ownership of land. He cited the cases of JINADU VS. ESUROMBI-ARO(2009) MJSC VOL. 4 (PART III) 1 AND DACOSTA VS. IKOMI (1968) 1 ALL NLR 394 in support of his argument. He argued and urged us to hold that from the gamut of credible evidence placed before the lower Court, the weight of evidence was in favour of the 1st Respondent. He finally urged us to dismiss the Appeal and affirm the judgment of the lower Court.

On the Reply Brief filed by the Appellants, the law is settled that a Reply Brief would be necessary only where new issues are raised in the Respondents’ Brief of Argument. A Reply Brief is not a repair kit to put right any lacuna or error in the Appellants’ Brief. See ABDULKADIR VS. MOHAMMED (2019) 12 NWLR (PT. 1687)450; MAINSTREET BANK LTD VS. BINNA (2016) 12 NWLR (PT. 1526)319; MOZIE VS. MBAMALU (2006) 15 NWLR (PT. 1003)466 AND OJUKWU VS. OBASANJO (2004) 12 NWLR (PT. 886)169. The Appellants’ Reply Brief falls short of the requirements of one and all arguments therein shall be discountenanced by me.

Now, to a resolution of the sole issue for determination in this Appeal. It is clear to me upon a perusal of the Appellants’ Claim and the 1st Respondent’s Counter Claim that the case of both parties is rooted in declaration of title to land.

The law is trite that where a party seeks declaration of title to land, the onus is on him to establish his title upon a preponderance of evidence or on the balance of probability. He must succeed on the strength of his own case and not on the weakness of the defence, unless such weaknesses which include admission against interest adds positive value to his case. See BOYE INDUSTRIES LTD VS. SOWEMIMO(2022) 3 NWLR (PT. 1817)195; REGISTERED TRUSTEES OF APOSTOLIC CHURCH OF CHRIST VS. REGISTERED TRUSTEES OF GRACE CHURCH OF CHRIST (2021) 16 NWLR (PT. 1801)105; ANAGBADO VS. FARUK (2019) 1 NWLR (PT. 1653)292 AND GENERAL COTTON MILL LIMITED VS. TRAVELLERS PALACE HOTEL (2019) 6 NWLR (PT. 1669)507.

In the case at the lower Court which culminated into this Appeal, the Appellants claimed against the 1st Respondent. The 1st Respondent also Counter Claimed against the Appellants and the persons joined as parties to the action. The duo therefore had the burden to prove their respective claims by preponderance of evidence.

The crux of the complaint of the Appellants is that the learned trial Judge failed to do a proper evaluation of the evidence placed before him before arriving at his decision to dismiss their case.

The law is that it is the duty of the trial Court to evaluate the evidence presented by the contending parties before arriving at its decision one way or the other. This is done by putting the totality of the admissible evidence by both parties side by side on an imaginary scale. A determination of which evidence is heavier is dependent on the quality and probative value of the evidence and not the number of witnesses. See ARIJE VS. ARIJE (2018) 16 NWLR (PT. 1644)67; AYUYA VS. YONRIN (2011) 10 NWLR (PT. 125)135 AND NNADOZIE VS. MBAGWU (2008) 3 NWLR (PT. 1074)363.It is further the law that where a trial Court has satisfactorily performed its function of evaluating evidence and ascribing probative value thereto, an Appellate Court would not interfere with its findings. An Appellate Court will only embark on re-evaluation of evidence where for instance:
(a) The trial Court’s evaluation of the evidence is clearly perverse;
(b) The trial Court drew wrong inferences from the totality of the evidence adduced; and
(c) The trial Court applied wrong principles of the law to accepted facts in the case.
See U.T.C. NIGERIA PLC VS. PETERS (2022) LPELR- 57289 (SC); IZEVBUWA VS. NIGERIAN BAR ASSOCIATION (2022) 5 NWLR (PT. 1823)237; FIRST BANK OF NIGERIA PLC VS. OZOKWERE (2014) 3 NWLR (PT. 1395)439; GAJI VS. PAYE (2003) 8 NWLR (PT. 823)583; AGBABIAKA VS. SAIBU (1998) 10 NWLR (PT. 571)534.

In its Judgment, the lower Court at Page 389 of the printed Record found as follows:
“…. The Claimants in paragraphs 4, 7 and 9 of the Amended Statement of Claim, pleaded that their ancestor “settled” on the land which was granted to him by Dada Oshoogun ‘as a gift’. In other words, the Claimants pleaded and deployed the terms ‘settlement’ and ‘grant’ interchangeably as though they were synonyms. But that is not the case. In Yusuf Vs. Adegoke (2008) 40 WRN 1, the Supreme Court highlighted the distinction between the two concepts in the following words:
“There is a difference between a grant and a settlement. For while a grant comes from a previous title holder to a subsequent one called a grantee, settlement does not recognise a previous title holder.”
Where the case for the Claimants is that the land was granted to their ancestor, it becomes anomalous for the same party to assert that his ancestor settled on the land. This is another minus in the case for the Claimants.”

The Appellants have expressed displeasure on the foregoing evaluation and finding made thereon by the lower Court. It is therefore important to determine whether the evaluation of evidence by the learned trial Judge represent the true state of things.

The learned trial Judge referred to Paragraphs 4, 7 and 9 of the Amended Statement of Claim. Paragraphs 4, 6, 7 and 9 of the Amended Statement of Claim reads thus:
“4. Claimants state that Oderiyibi Aseregbeperin settled at Gaun on the advice and influence of his relation, one DADA OSHOOGUN who was the daughter of OSHOOGUN.
6. It is the Claimants case that their ancestor, Oderiyibi Aseregbeperin usually moved from Gaun on hunting expeditions to a place he called Aseregbe to hunt elephants and work on his farm land which then belonged to his relation DADA OSHOOGUN.
7. Claimants state that Oderiyibi Aseregbperin was permitted by DADA OSHOOGUN to settle permanently in the area he called Aseregbe and that this area which was later given to him as a gift by DADA OSHOGUN.
9. The parcel of land given as a gift to ODERIYIBI ASEREGBEPERIN by DADA OSHOOGUN covered ASORE, OYEYEMI, ABA BALOGUN, OKO ADENLE, OJU SANGO, OSARO, ODO ERIN AND FAIDPE QUARTER at Imole Ayo area of Akute where he enjoyed quiet and undisturbed rights of ownership with the approval of his relation DADA OSHOOGUN. FadipeAkobileu Family land is delineated by a Survey Plan No. JAA/OG/521/855 dated 10/6/95 drawn by Surveyor J.O.D. AIGBE, Licensed Surveyor, which plan is pleaded and shall be relied upon at the trial of thismatter.”

The Written Statement on Oath of CW1 is at pages 221-224 of the printed Record. At paragraphs 6, 7 and 8 thereof, which he adopted as his evidence at the trial he deposed as follows:
“6. That our great ancestor ODERIYIBI ASEREGBEPERIN came from Ile-Ife around two hundred and fifty years ago.
7. That Odeniyibi(sic) Aseregbeperin settled at Gaun on the advice and influence of his relation, one DADA OSHOOGUN who was the daughter of OSHOOGUN and later married ORISAWUNMI.
8. That our great ancestor usually went on hunting expedition to a place he called Aseregbe to hunt elephants and work on his farm land which belonged to his relation DADA OSHOOGUN, who later permitted him to settle permanently in the area called Aseregbe and that this area was later given to him with a curse to whoever challenged him and the area include ASORE, OYEYEMI, ABA BALOGUN, OKO ADENLE, OJU SANGO, OSARO, ODO ERIN AND FADIPE QUARTER at Imole Ayo Area of Akute where he enjoyed quiet and undisturbed rights of ownership with the approval of his relation DADA OSHOOGUN.”

One Chief Toyin Adekunle testified as CW5. He is the Baale of Asore Village. His Witness Statement on Oath is at pages 194-196 of the printed Record. Himself and other Appellants’ Witnesses testified along the same line with CW1. It is apparent from averments contained in the Appellants’ pleadings and evidence given in support by their witnesses that their ancestor is one Oderiyibi Aseregbeperin. He came from Ile-Ife to settle at Gaun on the advice and influence of his relation, one Dada Oshoogun. From Gaun, he moved to a place called Aseregbe to hunt elephants. He also farmed the land. Land in the area called Aseregbe was founded by Dada Oshoogun. Appellants’ ancestor eventually relocated to Aseregbe. Dada Oshoogun granted land in Aseregbe to the ancestor of the Appellants as a gift.

The foregoing narrative is straightforward. The Appellants made it clear that the land was not founded by their ancestor who relocated from Ile-Ife and settled at Gaun with his relation. He hunted and farmed on land in Aseregbe and he was later on permitted to settle permanently there by his relation. It is clear from the averments and evidence given in support that settlement on land in Aseregbe was at the instance of Dada Oshoogun who later granted same as a gift. This simple narration cannot by any stretch of imagination be taken to mean that Appellants pleaded settlement and grant of the same land at the same time. The learned trial Judge drew wrong inferences from evidence given by Appellants’ witnesses. The principle of law enunciated in Yusuf Vs. Adegoke (supra) is inapplicable and was also wrongly applied to the facts before the lower Court. I therefore hold that the evaluation of evidence on this point and finding made thereon by the lower Court is perverse. The invitation made to this Court to investigate the evaluation of evidence done by the lower Court is justified.

In this case, the Appellants relied on evidence of traditional history to prove title to the disputed land. In his Judgment, particularly at page 390 of the printed Record, the learned trial Judge evaluated the evidence and concluded as follows:
“The Plaintiff must give satisfactory evidence of intervening owners leaving no gap in the line of succession. In Mojeed Suara Yusuf v Adegoke (supra), the Supreme Court held that where the line of succession is not satisfactorily traced such that gaps exist in the narration, or nexus which are not established, then such line of succession would be rejected. There are yawning gaps in the traditional history of the claimants. The defendant denied the claimants’ claims and put them to a strict proof.”

I find it pertinent to take a close look at relevant averments contained in the pleadings of parties with a view to ascertain whether parties joined issues on the Appellants’ root of title to warrant the conclusion reached by the lower Court. The Appellants as Claimants pleaded their root of title in paragraphs 6, 7 and 8 of their Amended Statement of Claim which I reproduce hereunder for ease of reference:
“6. That our great ancestor ODERIYIBI ASEREGBEPERIN came from Ile-Ife around two hundred and fifty years ago.
7. That Odeniyibi(sic) Aseregbeperin settled at Gaun on the advice and influence of his relation, one DADA OSHOOGUN who was the daughter of OSHOOGUN and later married ORISAWUNMI.
8. That our great ancestor usually went on hunting expedition to a place he called Aseregbe to hunt elephants and work on his farm land which belonged to his relation DADA OSHOOGUN, who later permitted him to settle permanently in the area called Aseregbe and that this area was later given to him with acurse to whoever challenged him and the area include ASORE, OYEYEMI, ABA BALOGUN, OKO ADENLE, OJU SANGO, OSARO, ODO ERIN AND FADIPE QUARTER at Imole Ayo Area of Akute where he enjoyed quiet and undisturbed rights of ownership with the approval of his relation DADA OSHOOGUN.”

The 1st Respondent’s Amended Statement of Defence and Counter-Claim is at pages 274-279 of the printed Record. At paragraphs 1, 2, 3 and 4 thereof, he averred as follows:
“1. The defendant denies paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 9, and 20 of the Statement of Claim and puts claimants to the strictest proof thereof.
Further the Defendant denies the authenticity of the family history of the claimants.
2. The defendant avers that he is the holder of a right of occupancy in respect of a developed land consisting of a farm house situate along Iju Water Works, Akute Road now known as Ajuwon-Akute Road, Asore Bus stop, Akute in the Ifo/Ota Local Government Area of Ogun State which is more particularly delineated in plan No. OGK/066 A-F/81 dated 20th March, 1981 and prepared by one M.A. Koiki, a licensed surveyor whose present address and whereabout is not known to the defendant.
3. The defendant avers that the aforementioned land holding consists of three (3) separate and distinct parcels of land jointly purchased by the Defendant and a friend Mr. Enoch C. Umeike who later assigned his interest to the defendant from three separate families around January, 1977.
4. The defendant avers that one third of his aforesaid land was initially purchased from late E.B. Odebunmi in 1980 who acquired his title from the Fadipe Oyeyemi family and after the death of E.B. Odebunmi in 1982 at the insistence of the Fadipe/Oyeyemi family, and to let peace reign, the Defendant had to pay another price to the accredited Representatives of the family who were the grand-parents of the present claimants. The defendant shall at trial rely on purchase receipt dated October 31, 1984, and the Fadipe family history recited on the Document titled assignment of October 31, 1984.”

The 1st Respondent concedes that he purchased the disputed land from the grand parents of the Appellants. It is significant to note that in an action fought by pleadings as in this case, issues are joined by parties in their pleadings. The existence or non-existence of a fact is said to be in issue if the existence or non-existence of that fact is asserted by a party in his pleading and denied by the other party specifically, positively and unequivocally. See ORUWARI VS. OSLER (2013) 5 NWLR (PT. 1348)535; SAIDU VS. ABUBAKAR (2008) 12 NWLR (PT. 1100)201 AND DALEK NIGERIA LIMITED VS. OIL MINERAL PRODUCING AREAS DEVELOPMENT COMMISSION (2007) 7 NWLR (PT. 1033)401.

The 1st Respondent who did not deny positively the claim of the Appellants that the disputed land belongs to their family averred that he repurchased the land from the Appellants’ grandparents. From the state of pleadings, it cannot be said that issues were joined on whether the Appellants’ family owned the land. The need to prove same did not arise and I so hold.

Furthermore, it is evident from the pleadings that the Appellants’ grandparents whom the 1st Respondent admitted sold the land to them had radical title to it. It is the law that when it is accepted by both parties that the disputed land originally belonged to the ancestors of the Claimant the presumption will be thatthe Claimants and his successors in title continued to be the owners of the land until the contrary is proved.

It follows therefore that the 1st Respondent who admitted the Appellants’ family at one time had radical title to the disputed land had the burden to prove that such title had been extinguished by the sale pleaded in the Amended Statement of Defence.

The learned trial Judge after evaluating the evidence of the 1st Respondent held at page 391 of the Record as follows:
“I have examined the evidence and submission of learned counsel. One issue I need to address is the status/identity of the Claimant’s FadipeAkobilewu family and FadipeOyeyemi family propoundedby the Defendant in respect of the parcel he bought from Babatunde Odebunmi. According to the Claimants, their Fadipe was a son of OderiyibiAseregberin, the original grantee of the land, but he died without an heir. On the other hand, the Fadipe of the defendant’s vendor was the original settler on the land sold to the defendant and he was survived by a child, Oyeyemi. The vendors of the land covered by exhibit 5A were descendants of Oyeyemi. Under cross-examination by Mr. Alara, the defendant said the Claimants have no land in the area where his land is situated. He also said he does not know their parents or whether they belonged to the FadipeOyeyemi family. From the evidence before me, I have no doubt that the two Fadipe’s were not one and the same person.”

I wish to reiterate the settled position of the law that the essence of pleadings is to compel the parties to define accordingly and precisely the issues upon which the case is to be contested to avoid the element of surprise. It is further trite that parties are not allowed to give evidence outside the facts pleaded. In other words evidence of facts not pleaded go to no issue.See C.N. OKPALA & SONS LIMITED VS. NIGERIAN BREWERIES (2018) 9 NWLR (PT. 1623)16; OSUJI VS. EKEOCHA (2009) 16 NWLR (PT. 1166)81;AREMU VS. ADETORO (2007) 16 NWLR (PT. 1060)244; ONWUKA VS. OMOGUI (1992) 3 NWLR (PT. 230) 393 AND ADENUGA VS. ODUMERU (2001) 2 NWLR (PT. 696) 184.

The case presented by the 1st Respondent in his pleadings is that the accredited members of the family that sold the land in question to him were the grandparents of the Appellants. He gave evidence along this line when at paragraph 9 of his Statement on Oath which he adopted as his evidence at the trial he said:
“That the Claimants in this suit were not yet born or were kids when I initially bought the Oyeyemi/Fadipe family one third (1/3) portion of my total land holding from Late E.B. Odebunmi and were definitely minors at the time I rebought the same parcel of land from their parents in 1984 with the sum of Eight Thousand Naira (N8,000)”.

In paragraph 6 of his Further Written Statement on Oath on page 280 of the Record, he deposed as follows:
“That the present Claimants were children and young adolescents in 1984”.The case made out by the 1st Respondent in his pleadings and his evidence is that the Appellants’ grandparents sold the land to him. He cannot lead evidence to the contrary. The general rule is that a man is not allowed to blow hot and cold, to affirm at one time and deny another time, or as it is said to approbate and reprobate. See DUNCAN MARITIME VENTURES NIGERIA LIMITED VS. NIGERIA PORTS AUTHORITY (2019) 1 NWLR (PT. 1652)163; PINA VS. MAI-ANGWA (2018) 15 NWLR (PT. 1643)431; OYERIGBA VS. OLAOPA (1998) 13 NWLR (PT. 583)509; OKONKWO VS. KPAJIE (1992) 2 NWLR (PT. 226)633 AND UDE VS. NWARA (1993) 2 NWLR (PT. 278)638.

The 1st Respondent who in one breath stated that his vendors were the Appellants’ grandparents cannot turn around to say that he does not know their parents. He cannot also turn around to say the Appellants’ family does not own any land in the area where the disputed land lies.

The 1st Respondent pleaded and relied on purchase agreements and receipts issued to him by his vendors. It is further his evidence that he sold part of the land to some other persons and that he fenced the entire land, built a farm house and poultry on it since 1997.

The 1st Respondent claimed that after the death of E.B. Odebunmi he repurchased the disputed land from Fadipe/Oyeyemi family of Akute vide a Sale Agreement titled “This Assignment” dated 31st of October, 1984, Exhibit 5A. The Appellants joined issues with the 1st Respondent on the sale of the land. They denied the family land was sold to E. B. Odebunmi.

Whether or not the disputed land was sold to the 1st Respondent was thus in issue at the lower Court. The case of the Appellants is that the 1st Respondent is a land speculator who trespassed on their family land without their consent, authority or approval of members of their family or their accredited representatives. The 1st Respondent who claims the land was sold to him by members of the Appellants‘ family failed to prove this fact by credible evidence. There is noevidence from the 1st Respondent to prove that the consent of principal or accredited members of the family that sold to him was sought nor obtained. He relied on Exhibit 5A which is a Deed of Assignment dated 31st October 1984. The law is that the mere fact that a party produces what he claims to be an instrument of title does not mean he is automatically entitled to a declaration that the property which such instrument purports to grant is his own. The Court must examine the document, ask and answer some questions which include:
1) whether the document is genuine and valid;
2) whether it has been duly executed, stamped and registered;
3) whether the grantor had the capacity and authority to make the grant;
4) whether the grantor had in fact what he purported to grant; and
5) whether it had the effect claimed by the holder of the instrument.
See EDOSA VS. EHIMWENMA (2022) 5 NWLR (PT. 1823)215; JOLASUN VS. BAMGBOYE (2010) 18 NWLR (PT. 1225)285; AKINDURO VS. ALAYA (2007) 15 NWLR (PT. 1057)312; KYARI VS. ALKALI (2001) 11 NWLR (PT. 724)412 AND ROMAINE VS. ROMAINE (1992) 4 NWLR (PT. 238)650.

I have had a look at the Deed ofAssignment (Exhibit 5A) relied on by the 1st Respondent as conferring title on him. It does not contain any evidence of the capacity in which the Vendors acted. This is important because parties are on common ground that the disputed land is family land. There is no evidence from the 1st Respondent who testified as DW1 that he had any dealing with the head of the family of his Vendor. In answer to question put to him under cross examination he stated he had no dealing with the head of the families who sold to him. There is no evidence that the family head gave his prior consent to the sale.

Furthermore, there isno credible evidence that the right of the Appellants family has been extinguished. The law is settled that where a party pleads sale or conveyance as his root of title, he either succeeds in proving the sale or conveyance or he fails. The 1st Respondent who has failed to prove the sale pleaded and on which he relies to prove his title to the disputed land cannot turn round to rely on acts of ownership or acts of possession. See OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849)326; FASORO VS. BEYIOKU (1998) 2 NWLR (PT. 76)263 AND BALOGUN VS. AKANJI (1988) 1 NWLR (PT.70) 301.

It follows therefore that the 1st Respondent was on the disputed land without the authority and consent of the head and principal/accredited representatives of the Appellants’ family. His unauthorised entry into the land is trespass for which action lies in damages.

Having held as above, it follows that this Appeal has merit and I so hold. It is accordingly allowed. The judgment of the Ogun State High Court, Ota Judicial Division in Suit No: HCT/172/1998 is hereby set aside. In its place I hereby make the following Orders:
(i) I declare that the parcel of land lying, being,situate at Asore Area of Akute delineated by Survey Plan No. JAA/OG/521/855 dated 10/6/95 drawn by Surveyor J.O.D. Aigbe falls within FadipeAkobileu Family Land.
(ii) I declare that the 1st Respondent is a trespasser to FadipeAkobieu land, lying, being and situate at Asore Area of Akute, Ogun State.
(iii) I award the sum of N100,000.00 general damages being general damages for 1st Respondent’s act of trespass on the said land.
(iv) I grant an order of perpetual injunction restraining the 1st Respondent, his agents, assigns, or privies from continuing further acts of trespass to FadipeAkobileu Family land at Asore, Akute, Ogun State.
The Counter Claim of the 1st Respondent is dismissed.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, FOLASADE AYODEJI OJO, JCA.

My learned brother has elaborately considered the salient questions in this appeal and has given very comprehensive reasons for allowing the appeal. I agree with the reasoning and conclusions of my learned brother and I also allow the appeal in the manner set out in the leadingjudgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, FOLASADE AYODEJI 030, JCA and I am in complete agreement with the lucid reasoning and conclusion arrived at in the judgment.

Just a word on the importance of pleadings. The importance of pleadings cannot be over emphasized, pleadings in cases tried in the High Court must be stressed here. It is upon same that a claim in the lower Court must stand or fall.
The apex Court in the case of OSHOBOJA v. AMUDA & ORS (1992) LPELR- 2804(SC) held as thusly:
“The importance of pleadings in our adversary system of administration of justice cannot be overlooked. For it is when issues are joined that a case can proceed on trial, Even then, when evidence is given which is not supported by the pleadings, it goes to no issue and will be disregarded. All these essentials cannot be sacrificed on the altar of expediency.” Per UWAIS, J.S.C.
It is without doubt that pleadings form the bedrock of any trial in a case begun by writ of summons. Pleadings are the written statements of theparties in an action begun by writ, setting forth in a summary form the material facts on which each party relies in support of his claim or defence, as the case may be. They are the means by which parties are enabled to frame the issues which are in dispute between them, without embarking at that stage on the evidence which each party may adduce at trial. The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called upon to adjudicate between them. It serves the two- fold purpose of informing each party what is the case of the opposite party which he will have to meet before and at the trial, and at the same time informing the Court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the Court will have to determine at the trial. Thus, one of the most firmly established principle of litigation is that the parties, and the Court, are bound by the pleadings. Neither party can make out a case at the trial different from thatcontained on the pleadings, see ZENITH BANK PLC V. EKEREUWEM (2012) 4 NWLR (PT. 1290) 207 AND AFOLABI V. WESTERN STEEL WORKS LTD (2012) 17 NWLR (PT. 1329) 286.
A Court too cannot set up for parties a case different from the one set up by the parties in the pleadings, see SKYE BANK PLC V. AKINPELU (2010) 9 NWLR (PT. 1198) 179 AND BALIOL (NIG) LTD V. NAVCON (NIG) LTD (2010) 16 NWLR (PT. 1220) 619.

The 1st respondent having restricted himself in his pleadings, he cannot proceed otherwise. He must maintain that line in his evidence.
I also adopt the resolution in the lead judgment as mine and allow the appeal. I abide by the orders made therein.

Appearances:

F. A. AIGBADUMAH. For Appellant(s)

…For Respondent(s)