FALANA & ORS v. ADEDEJI & ORS
(2020)LCN/14309(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Monday, June 08, 2020
CA/EK/61/2019
Before Our Lordships
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
- CHIEF JAMES ADEBISI FALANA 2. REV. JOSEPH O. BOLORUNKOPAIN 3. PASTOR JOSEPH FALANA 4. PA. MATTHEW OGUNTUASE 5. MR. RAPHEAL FALANA APPELANT(S)
And
- MR SUNDAY ADEDEJI 2. MR. AKIN FALAE 3. MR. BEJIDE AYODELE 4. MR. IBRAHIM OMOTOYE 5. MR. JOSEPH ADAMOLEKUN 6. MR. GEORGE BABATUNDE 7. MR. PIUS ADEYEMO FADIMU RESPONDENT(S)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT
It is settled law that an appeal Court cannot ordinarily descend into the Arena of contest and usurp the functions of the trial judge and jury on evaluation and assessment of evidence and arriving at findings of facts. It is only when in the discharge of these functions proper use has not been made of the opportunity of seeing and hearing the witnesses or wrong conclusions have been drawn from accepted credible evidence and an erroneous view of the evidence adduced before the Court has been taken or the findings of facts do not flow from the evidence accepted by the Court that the appeal Court can interfere with the findings of fact. See the case of FASHANU VS. ADEKOYA (1974) 1 ALL NLR 35 @ 41, ALHAJI ELIAS VS. SULEIMON & ORS (1973) 12 SC 113 and OMOREGBE VS. EDO (1971) 1 ALL NLR 282 @ 289. An Appellate Court should not interfere with findings of lower Courts which had the rare and singular opportunity of seeing and watching the demeanor or witnesses giving evidence before it unless it is shown that the findings of the lower Court are perverse. See BABARINDE VS. STATE (2013) ALL FWLR (PT 662) 1731 @ 1766 PARAS B-E. PER ELECHI, J.C.A.
DEFINITION OF A PERVERSE FINDING
A perverse finding has been defined as one which ignores the facts or evidence led before the Court or runs counter thereto and leads to or occasions a miscarriage of justice. A perverse finding is also one which shuts its eye to the obvious or takes into account an extraneous matter. See the cases of YAV VS. STATE (2005) 5 NWLR (P6 917)1 @ 24 PARAS C-F and BABARINDE VS. STATE (SUPRA) 1766 PARAS B-E. PER ELECHI, J.C.A.
WHETHER OR NOT THE ONUS OF PROOF LIES ON THE PARTY SEEKING DECLARATION OF TITLE TO LAND
It is long settled that in a case seeking a declaration of title of land, the onus lies on the appellants to satisfy at the trial Court that they are entitled on the evidence brought by them to a declaration of title claimed. In this regards, the appellants must rely on the strength of their own case and not on the weakness of the defendants case. If this onus is not discharged by credible, cogent and satisfactory evidence, the weakness of the defendants’ case will not help the Claimants and the proper judgment will be for the claimants. See MATANMI V. DADA (2015) EJSC (VOL. 7) 43 SC, ANYAFULU V. MEKA (2014) 16 WRN 53 AT 76. PER ELECHI, J.C.A.
WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND
It appears that both sides of the divide are at one that it is now settled law that there are five ways of establishing title to land. This is as set out in the case of Idundun v. Okumagba (1976) NMLR 200 at 210 per Fatayi Williams JSC (as he then was and of blessed memory) as follows.
“As for the Law involved, we would like to point out that it is now settled that there are five ways to which ownership of land may be proved:
(i) Ownership of land may be proved by traditional evidence.
(ii) Ownership of land may be proved by production of documents of title which must be duly authenticated in the sense that their due execution must be proved.
(iii) Acts of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner. See EKPO V. ITA 11 NLR 680.
(iv) Acts of long possession and enjoyment of the land which may be prima facie evidence of ownership of the particulars piece or parcel of land or quantity of land. See Section 45 of the Evidence Act.
Finally, acts of long 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.
The case of Idundun v. Okumagba (Supra) was closely followed by Piaro v. Tenalo (1976) 12 SC 31. See also Balogun & Ors v. Akanji & Anor (1988) Vol. 19 1 NSCC 180, (1988) 1 NWLR (pt. 70) 301, Onwugbufor & Ors v. Okoye & Ors (1996) 1 NWLR (Pt. 422) 252, Mogaji v. Cadbury Nig Ltd (1985) 2 NWLR (Pt. 7) 393, Alli v. Alesinloye (2000) 6 NWLR (Pt 600) 177, Eze v. Atasie (2000)10 NWLR (Pt 676) 450. PER ELECHI, J.C.A.
DEFINITION OF FORMS OF EVALUATION OF EVIDENCE
The Supreme Court in defining forms of evaluation of evidence in Chief Samusideen Afolabi Ayorinde & Ors v. Chief Hassan Sogunro & Ors Rhodes- Vivour JSC on pages 22-23 paragraph E-D as follows:
“Evaluation of evidence comes in two forms:
(a) Findings of fact based on the credibility of witnesses and
(b) Findings based on evaluation of evidence. In (a) an appeal Court should be slow to differ from the trial judge. After all, it was he that saw and heard the witnesses, he watched their demeanour and so his conclusion must be accorded some respect. But in (b) an appeal Court is in a good a position as the trial Court to evaluate the evidence. In both A & B, the conclusion of the trial judge should be accorded much weight except if found to be perverse. Trial Courts receive evidence. That is perception. It is then the duty of the Court to weigh the evidence in the context of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation.” PER ELECHI, J.C.A.
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ekiti State High Court sitting at Ado Ekiti Judicial Division Coram Hon. Justice Ogunmoye dated the 19th day of March, 2019 dismissing the claims of the appellants herein.
Dissatisfied with the judgment the appellants appealed against the said decision vide the Notice of Appeal dated the 24th of April, 2019 and filed on the same day containing 3 grounds of Appeal. The said Notice of Appeal can be found on pages 491-493 of the records of appeal.
The claim of the claimants at the trial Court as per the Writ of Summons and Amended statement of Claim dated 13th July, 2017 and filed on 17th July, 2017 was for:
a. A declaration that there is no family in Odo –Ado called Pa Eminiwa family.
b. A declaration that the defendants and their privies are customary tenants through Pa. Adeyemo Fadimu (Otele) and Late Madam Otepola.
c. A declaration that the act of the defendants usurping and challenging the title of the claimants’ family is illegal and unlawful.
d. A declaration that any purported sale by the
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Defendants and their privies is illegal, wrongful and void without any legal effect whatsoever.
e. An order of perpetual injunction restraining the Defendants whether by themselves, their privies, agents, assigns, servants or anyone claiming title through them from otherwise entering, dealing with or committing and further act of usurpation and trespass to the large expanse of land of Eminio and Oniloda Family land situate at Omi Oloko and Igimokogo Area of Odo-Ado, Ado Ekiti and sharing boundaries with the following Chiefs respectively:
i. Chief Ogbedi on the Eastern part of the land.
ii. Chief Oisa on the Western part of the land
iii. Chief Asamo on the Southern part of the land.
iv. Chief Aremo on the south- Eastern part of the land.
v. Chief Olotin of Odo – Ado & Chief Abodi of Odo-Ado, Ado Ekiti at the Northern part of the land.
f. An order of this Court mandating the Defendants, their privies, agents or assigns, servants or persons claiming title through them to remove all the structures illegally erected on the land in dispute.
g. General damages of Two Hundred and Fifty Million Naira (N250, 000,000.00) only
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for trespass.
h. The cost of this suit assessed on One Million Naira (N1, 000,000.00) only.
The totality of the pleadings and evidence of the claimant (i.e. appellants herein) at the trial Court, was that the claimants’ family are the bonafide owners of the large expanse of land lying, being and situate at Omi Oloko, Igimokogo, along Igirigiri Road, Ado- Ekiti, Ekiti State from time immemorial. This large piece of land has been surveyed by Eminio and Oniloda family since 1998. The plan showing property of Eminio and Oniloda family land dated 19/7/98 was thereafter tendered by the claimants.
It was the assertion of the claimants (now appellants) that the claimants’ great grandfather, Chief Akaka (the Pioneer Eminio of Ado-Ado) was the first seller and original owner of the land in dispute and his title has never been challenged by anybody up till today.
The appellants aver that their great grandfather, Chief Akaka (the pioneer Eminio) had many Children among them were two sons namely Ogidi and Erumole. Ogidi was the eldest son of Chief Akaka while Erumole is Ogidi’s younger brother. After the death of Chief Akaka, the issue
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of succession of the Chieftaincy title of Eminio was raised and the oracles chose the younger brother which is Erumole to succeed the title of Eminio.
Appellants also aver that Erumole became the second holder of Eminio Chieftaincy title having succeeded his late father Chief Akaka. The Claimants said the eldest son named Ogidi was so powerful and aggrieved that he did not succeed his father’s title being the eldest son of Chief Akaka and was therefore pacified with an honorary Chieftaincy title of Eminiwa by Ewi Awamaro being the father-in-law of Eminiwa Akaka because Chief Akaka married Oja Olatisade, a daughter to Ewi. Chief Ogidi, who was the first and the last holder of the Chieftaincy title of Eminiwa, had no wife and no child and no offspring to succeed him and ascend to the stool of the honorary title of Eminiwa given to him and thus the title died naturally.
The claimants averred that all the defendants (respondents) were all customary tenants of Eminio/Oniloda family who came through Pa Adeyemo Fadimu (Otele) and Late Madam Otepola and derived their possession from the said Eminio/Oniloda based on the historical background.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In a judgment delivered by the trial Court on the 19th day of March, 2019, the trial Court dismissed the claims of the claimants.
Dissatisfied with judgment, the claimants, now appellants filed their Notice of Appeal on the 24th of April, 2019.
ISSUES FOR DETERMINATION
From the two grounds of Appeal, the Appeal have distilled two issues for determination.
The issues are as follows:
i. “Whether from the pleadings and available evidence on records, the Appellants are not entitled to the reliefs as claimed by them.
ii. “Whether having regard to the pleadings and evidence before the trial Court, the learned trial judge rightly found that the CW1 failed to convince the Court as to when Eminiwa Unit ceased to be.”
ARGUMENT ON THE ISSUES
WHETHER FROM THE PLEADINGS AND AVAILABLE EVIDENCE ON RECORD, THE APPELLANTS ARE NOT ENTITLED TO THE RELIEFS AS CLAIMED BY THEM.”
To argue this issue, learned Appellant counsel referred to the five ways of proving title to land in dispute and relied on the authority of Idundun v. Okumagba (1976) 9-10 SC 227
According to learned Appellant, he stated that it is
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the Appellants’ case that the appellants are the bonafide owners of the large expanse of land. Lying, being and situate at Omi Oloko Igimokogo along Igirigiri road, Ado Ekiti, Ekiti State from time immemorial. This large expanse of land has been surveyed by Eminio and Oniloda family land dated 19/7/1998 was thereafter tendered by the claimants as Exhibit 1.
The Appellants’ great grandfather, Chief Akaka (the Pioneer Eminio of Ado Ekiti) was the first settler and original owner of the land in dispute and his title and never been challenged by anybody up till today.
The Appellants aver that their great grandfather, Chief Akaka (the Pioneer Eminio) had many children among who were two sons namely Ogidi and Erumole. Ogidi was the eldest son of Chief Akaka while Erumole is Ogidi’s younger brother. After the death of Chief Akaka, the issue of succession of the Chieftaincy title of Eminio was raised and the oracles chose the younger brother which is Erumole to succeed the title of Emino.
The Appellants asserts that Erumole became the second holder of Eminio Chieftaincy title having succeeded his late father, chief Akaka. The eldest
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son, Ogidi was so powerful and aggrieved that he did not succeed his father’s title being the eldest son of Chief Akaka and was therefore pacified with an honorary chieftaincy title of Eminiwa by Ewi Awamaro being father-in–law to Eminiwa Akaka because Chief Akaka married Oja Olatisada, a daughter to Ewi. Chief Ogidi, who was the first and the last holder of the Chieftaincy title of Eminiwa had no wife and no child, there was no one to ascend to the stool of the honorary title of Eminiwa given to him and thus the title died naturally.
It is also the evidence of the Appellants at the trial Court that all the defendants/respondents herein were all customary tenants of Eminio/Oniloda family who came through Pa Adeyemo Fadimu (Otele) and Late Madam Otepola and derived their possession from the said Eminio/Oniloda based on the historical background.
On the contrary, the respondents herein contended that they are descendants of Ogidi, who later became Eminiwa after the death of Chief Akaka. The Defendants also pleaded Eminiwa family survey plan but refused, failed and/or neglected to tender same in evidence.
At this juncture, it is
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pertinent to note that both parties herein are at ad idem on the identity of the land in dispute as same is well known to both parties and as such is not an issue before this Honourable Court. Also both parties agree that the in dispute had been surveyed by Eminio/Oniloda family since 1998 and that Chief Akaka (The Pioneer Eminio of Ado Ekiti) was the first settler and the original owner of the land in dispute. It is the position of the law that these sets of facts are admitted and needs no further proof. PDP VS SANI ALI (2015) LPELR 40370, SOLANA VS. OLUSANYA (1975) LPELR 3097, TITILOYE VS. OLUPO (1991) 9-10 SCN, OLALE VS. EKWELENDU (1989) 7 SCN (PT. 2) 62; NDAYAKO VS. DANTORO (2004) 13 NWLR (PT. 889) 187, EHINLANWO VS. OLUSOLA OKE 16 NWLR (PT. 113) 357.
It is further submission that the DW1 who was on subpoena before the Court testified that he was in Court in respect of Eminio land at Eliju farmland from Omi Oloko and that because EMINIO was the owner of the land in dispute.
The said witness stated under cross examination thus:
“I am in Court pursuant to a subpoena to testify. I am not here to side either of the parties. I am in Court in
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respect of Eminio land. Eminio land is at Eliju farmland from Omi Oloko. I am in Court becuse Eminio is the owner of the land in dispute.”
This assertion is a statement against interest. The DW1 was a witness for the defendants/respondents who testified and categorically stated that the land in dispute belong to the Appellant herein. What is more convincing evidence is needed from a party who admits the assertion of his adversary? The Court is urged to hold that the Appellants herein have established title to the land and resolve this issue in favour of the Appellants.
It is also pertinent to note that there is evidence on record that Chief Ogidi (the first and last Eminiwa) died childless because he had no wife and children as he was impotent. The question to be asked here is that if Chief Ogidi had no Child during his lifetime, how did the respondents herein become his children? It is the position of the law that the Court does not speculate on evidence before it but act on credible evidence placed before it.
It is also the contention of the Appellant herein that the respondents failed to trace their genealogy to chief Ogidi who was
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reported impotent and had neither wife nor child. The Respondents would have done better by naming the wife or wives of chief Ogidi and the children born by his wife or wives who subsequently begat the Respondents. The law is that he who asserts must prove. See Section 135 of the Evidence Act , Omotosho v. Ojo (2008) ALL FWLR (Pt. 408) 389.
However, in the instant case, it is the respondents who asserted the positive claim of being the offspring of Chief Ogidi without stating categorically how they became the Children of Chief Ogidi whether by adoption or otherwise. The Court is urged to reject this assertion in its entirety.
It is further submitted that the failure of the Appellants’ counsel to cross-examine the DW1 who is the chairman of Eminio family is not fatal to the case of the Appellants because the respondents had failed to lead credible evidence to show how they became related to Chief Ogidi (he first and last Eminiwa)
This Court is prayed to resolve this issue against the respondents and allow this appeal.
ISSUE 2
Whether having regard to the pleadings and evidence before the trial Court, the learned trial judge
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rightly found that the CW1 failed to convince the Court as to when Eminiwa Unit ceased to be? (Deduceable from Ground 2) of the Notice of Appeal.
It is settled law that an appeal Court cannot ordinarily descend into the Arena of contest and usurp the functions of the trial judge and jury on evaluation and assessment of evidence and arriving at findings of facts. It is only when in the discharge of these functions proper use has not been made of the opportunity of seeing and hearing the witnesses or wrong conclusions have been drawn from accepted credible evidence and an erroneous view of the evidence adduced before the Court has been taken or the findings of facts do not flow from the evidence accepted by the Court that the appeal Court can interfere with the findings of fact. See the case of FASHANU VS. ADEKOYA (1974) 1 ALL NLR 35 @ 41, ALHAJI ELIAS VS. SULEIMON & ORS (1973) 12 SC 113 and OMOREGBE VS. EDO (1971) 1 ALL NLR 282 @ 289.
An Appellate Court should not interfere with findings of lower Courts which had the rare and singular opportunity of seeing and watching the demeanor or witnesses giving evidence before it unless it is shown that the
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findings of the lower Court are perverse. See BABARINDE VS. STATE (2013) ALL FWLR (PT 662) 1731 @ 1766 PARAS B-E.
A perverse finding has been defined as one which ignores the facts or evidence led before the Court or runs counter thereto and leads to or occasions a miscarriage of justice. A perverse finding is also one which shuts its eye to the obvious or takes into account an extraneous matter. See the cases of YAV VS. STATE (2005) 5 NWLR (P6 917)1 @ 24 PARAS C-F and BABARINDE VS. STATE (SUPRA) 1766 PARAS B-E.
But in the instant case which is the subject matter of this appeal, wrong conclusions were drawn from accepted credible evidence, erroneous views were taken of the evidence adduced before the trial Court and the findings of fact of the learned trial judge did not flow from the evidence accepted by the Court.
From the records, CW1 did not tell the Court when the family came to have five units nor did the claimants witnesses succeed to convince the Court the exact time the Eminiwa Unit allegedly went into extinction. The above findings of the trial Court is perverse.
It is submitted that the onus is on the defendants at the trial
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Court (now respondents herein) who were claiming to be family of Eminiwa to prove their alleged descent from Chief Ogidi who was the first and last Eminiwa.
Also that the failure of the defendants at the trial Court (now respondents herein) to plead and prove how they became the children of Eminiwa was fatal to their case and thus the trial Court ought to have given judgment in favour of the Appellants.
The Court is therefore urged to hold that the failure of the Respondents to trace their genealogy to Chief Ogidi (who was acclaimed to have died childless and without a wife) is fatal to their case and helps the case of the appellants who have consistently averred that Eminiwa family ceases to be upon the death of Chief Ogidi (the first and last Eminiwa).
The Court is then urged to resolve this issue in favour of the Appellants give judgment to them and allow the appeal.
On the other hand, the 2nd to 5th Respondents as part defendants at the lower Court stated that the large expanse of land lying, being and situate at Omi Oloko to Igimokogo along Igirigiri Road, Ado Ekiti, Ekiti State belong to five (50 families who are descendants of Pa. Akaka
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the first Eminio which are (1) Eminio, (2) Eminiwa, (3) Odofin, (4) Opon and (5) Oluloda, which are the five Chieftaincy families that make up the entire family and all the five families have their chiefs and all of them farm on the land but differently on their separate portion inherited from their father.
The general farm land share major boundaries with Ogbedi family, Oisa Family, Asamo family, Aremo family and Olotin family but the five (5) families also share boundaries within themselves. The 2nd to 5th Respondents stated that they are not tenants to the appellants and ask Court to dismiss their claims before the Court against them.
ISSUES FOR DETERMINATION
Whether from the oral and documentary evidence placed before the lower Court, the learned trial judge was right to have dismissed the appellant’ claims? This issue is formulated in respect of grounds 1 and 2 of the Notice of Appeal.
It is submitted that the lower Court was right to have dismissed the Appellant’s claim.
That in general a claim for damages for trespass and injunction, title is always in issue.
For the appellant to succeed, they need to rest on
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the strength of their case. It is long settled that in a case seeking a declaration of title of land, the onus lies on the appellants to satisfy at the trial Court that they are entitled on the evidence brought by them to a declaration of title claimed. In this regards, the appellants must rely on the strength of their own case and not on the weakness of the defendants case. If this onus is not discharged by credible, cogent and satisfactory evidence, the weakness of the defendants’ case will not help the Claimants and the proper judgment will be for the claimants. See MATANMI V. DADA (2015) EJSC (VOL. 7) 43 SC, ANYAFULU V. MEKA (2014) 16 WRN 53 AT 76
The defence of 2nd to 5th Respondents before the trial Court is that the large expanse of land lying being and situate at Omi Oloko to Igimokogo along Igirigiri Road, Ado Ekiti, Ekiti State belong to five(5) families who are descendants of Pa. Akaka which are (1) Eminio, (2) Eminiwa, (3) Odofin, (4) Opon and (5) Oluloda. Which are the five Chieftaincy families that make up the entire family. That all the five families have their chiefs and all of them farm on the land but differently on their separate
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portion inherited from their father.
The 2nd to 5th Respondents pleaded in their amended statement of defence and further gave evidence that; Chief Akaka who was a great warrior became one of Ewi Chief after the conquest of Elesun and Pa Akaka became the first Chief Eminio of Odo-Ado, Ado – Ekiti. Chief Akaka had so many children but the prominent among them were Ogidi Eldest Son and Erumole and after the death of Chief Akaka, Pa Ogidi a valiant warrior became Daoudu and the head of the family. Pa. Erumole, the younger brother of Pa Ogidi was elected by Ifa Oracle as the next Eminio and he was made Chief Eminio. Pa Ogidi a great warrior did exploit and performed excellently in so many wars and was acknowledged by Ewi and he was made a Chief by the Ewi of Ado, Ado Ekiti. Chief Ogidi became Chief Eminiwa while his younger brother was Chief Eminio both as a son of Chief Akaka. Chief Ogidi Eminiwa who was a great warrior has so many wives and children, though he had some still- births from some of his wives yet he was survived by many children.
Chief Ogodi Eminiwa descendant are as follows;
K. The prominent among his children were Ale, Esubiyi,
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Ajaka and Owukuke which are from different wives.
I. Ale one of the son of Chief Ogidi begant Osimu and other children
(i) Osimu begat Ayodele, Oobi and other children.
(ii) Pa Ayodele begat Omolola Omotoye, Iyalode PAUL, Patrick Ayodele and Bajide Ayodele the third defendant
(iii) Omolola Omotoye also gave birth to Omotoye Ibrahim the fourth defendant.
m. Esubiyi begat John and so many other children (i) John Esubiyi begat Joseph Adamolekun (presently full age and sick) the fifth defendant and some other children.
n. Pa. Ajaka begat Omole and other children
(i) Pa Omole begat Falae and other children
(ii) Pa falae begat Akinola Falae second defendant and some other children.
o. Owukuke begat Simon (aka sinmonni), Abejide, Famoye and other children.
(i) Simon begat Omilusi Clement, Augustine, Felix and Peter.
(ii) Bejide begat Thomas, Gabriel and other children
(iii) Famoye Remigius begat Ilesanmi, Alaba, Ojo and so many other children.
p. Chief Owukeke became the second Eminiwa after the death of Chief Ogidi.
q. In furtherance of the above, Famoye was elected to be the third Eminiwa but he
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died before installation due to old age.
r. All the descendants of Pa Ogidi (Chief Eminiwa) have been living farming and subjugate their own portion of the land since the death of their great grandfather Chief Ogidi.
s. The land left by Chief Akaka belong to all his descendants including the descendants of ogidi, Erumole and other Children of pa Akaka i.e. Opon and Odofin every one possesses their father’s farming location (Esiuo).
t. That Omilusi later became head of Eminiwa family and also a treasurer to the large family.
As a result, it is submitted that the 2nd to 5th respondent who advance ownership through inheritance must plead and give evidence of the persons who have held title or no whom title devolved in respect of the land before the 2nd to 5th respondents took control of the land. Where evidence of tradition is relied upon the respondents must plead and establish the following facts;
(a) Who founded the land
(b) How he founded it and;
The particulars of the intervening owners through whom he claims down to him. See Anyafulu v. Maka (2014) 16 WRN 53
The Respondents defence before trial Court was that
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2nd to 5th Respondents are members of the larger family with the Appellants while the Appellants are from Eminio and Oniloda branch, the 2nd to 5th respondents are from Eminiwa branch of the family. The 2nd to 5th respondents never lay claim on all large expanse of land lying, being and situate at Omi Oloko to Igimokogo along Igirigiri Road, Ado Ekiti, Ekiti State but stated that it belong to all the five branches of the family i.e Eminio, Eminiwa, Opon, Odofin inisa and Oniloda. This piece of evidence was not disproved by the Appellants but DW1 the Chairman of Eminio family brought to Court on supeana rather affirmed and confirmed the fact that there are five branches in the family including the children of Eminiwa who are still part of the family. It settled that when land in dispute is own by three or more members of the family, a unit thereof cannot seek for declaration against the other members of the family.
This is the position in Sanusi v. Makinde (1994) 5 NWLR (PT 343) P 214 at 225 Para H where the Court held that “The law is that where it is established that land in dispute is owned by three or more members of a family, it follows that it
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must continue to belong to the descendants, a claim for declaration of title by only one of the branches against only one other branch cannot succeed. For the success or dismissal of such claim will exclude the other.”
It was the evidence of Appellants witnesses CW1, CW2 and CW3 that Eminiwa family has gone into extinction and 2nd to 5th respondents are customary tenant but under cross-examination it was admitted by CW1, 2 and 3 that Julius Omilusi later became head of Eminiwa Family and also a treasurer to the larger family. It is submitted that Omilusi having become a treasurer to the family. Whenever the question of family status arises it pre-supposes the fact that the person whose status is called in question has been accepted as a member of the family because one has to be member of a family before he can acquire status within the family. See Adeyemi & Ors v. Opeyori (1976) 10 NSCC 455 at 465, Okulate v. Awosanya (2000) 2 NWLR (PT. 646) 530.
In furtherance of his argument, learned Respondents counsel posited the question thus:
The question to resolve is whether Eminiwa family unit/branch had gone to extinction from the time
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immemorial? The answer to this is negative. It was the claim of the appellants that Eminiwa family group had gone into extinction but Exhibit 2 tendered by the first appellant CW3 revealed that Eminiwa family group/branch of the family was in existence when the said Exhibit was made in 2013 before the conception of this suit. And in fact the head of the Eminiwa group Pa Omilusi was even the Treasurer to the larger family. It would be unbelievable that a family that had existed till 2013 will suddenly go in to extinction in 2017 when this suit was filed. In paragraphs, 6 (k-o) of the defendants statements of defence the 2nd to 5th defendants had stated that they are from Chief Ogidi Eminiwa and the tree of their genealogy is traced thereof. See pages 227-228 of the record of appeal.
In furtherance to the above, CW2 stated under cross examination that “Emino is from Akaka, Eminiwa from Akaka, Odofin is from Akaka, Opon is from Akaka, Oluloda is from Akaka.”
CW2 also admitted that “Eminio and Eminiwa are the first two chiefs in the family before Oluloda Chieftaince was created.” The uncontroverted and challenged evidence of DW1
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the Chairman of Eminio family was that “we have five Chief in the family namely Eminio, Opon, Odofin Enisa, Eminiwa and Oluloda. The founder of the family was Akaka whose children were Eminio and Eminiwa. I am from Emino branch, from Eminiwa branch; I known Ayodele, Omilusi, Adamolekun and all of them had children.”
This piece of evidence was not also challenged by the Appellants. All these are fact that 2nd-5th respondents and the appellants are from same extended family. It was also shown during the trial that that family have two meeting segments while the Eminio, Upon and Odofin Inisa have their meeting together in a place as the lower house (Odo Ile), Emimiwa and Oluloda also have their meeting to gather as the Upper house (Oke ile). Also CW3 admitted under cross-examination that; “I am a tenant to the five families through my father. In KUTI V. Alashe (2005) 17 NWLR (Pt. 955) 625 at 651, “where people have the same progenitor, they would be equally entitled to the rights and be subjected to the same constraints.”
It is further submitted that Eminiwa branch which 2nd – 5th defendants belong is not a tenant to
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the other branches or units in the family, the event of PA. Otele coming in to the family was not time immemorial but a recent event. DW1 also testifies that “I know Fadimu Otele, he was given land by Emino through Pa Ayodele”. All this piece of evidence was not discredited under cross examination, therefore Pa. Otele could not have been the person that brought Pa. Ayodele to the family. CW2 also said during cross examination that “I am a tenant to the five families through my father” if one of the families had gone in to extinction as at the time his father became the customary tenant to the family, he would not have said so. Line 20-23 of front page of Exhibit 2 states that the “Eminiwa family was under Oniloda family, as at then, the Head of Eminiwa family one Mr. Omilusi was treasurer of Oniloda family up till now,” this Exhibit was made by the CW2 the first appellant and which was admitted by him during cross examination. He submitted that Exhibit 2 was made at that time Eminiwa family branch of the family has not gone into extinction. It therefore becomes unbelievable and unacceptable that in 2017, the entire Eminiwa
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family would have gone into extinction.
The Court is urged to resolve this issue in favour of the Respondents and dismiss the appeal.
To prove that someone or family is a customary tenant, the land lord must prove that the customary tenant pays tribute or rent, even when those two are lacking there must be evidence of homage and the defendant must have accept them as his land lord. In the instance case, appellants were not able to prove any of the mentioned. And 2nd -5th respondents had stated in their defence that 2nd to 5th respondents and the appellants are from same extended family which was corroborated my DW1 the chairman of Eminio Family. And they have not by any means admitted that the appellants are their overlords and in fact CW3 admitted that he is a tenant to the five families (Eminio, Eminiwa, Opon, Odofin Inisa and Oluloda) through his father. See Dada v. Bankole (2008) 5 NWLR (Pt. 1079) 26 at 66, Akinbade v. Babatunde (2018) 7 NWLR (PT. 1618) 366 At 396.
Even, DW1 never stated that the land in dispute belonged to the Appellants but only said that he is in Court in respect of Eminio land and they have five chiefs which are Eminio,
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Odofin Inisa, Eminiwa and Oluloda. It is the evidence of both Appellants and the Respondents that Eminio Akaka was the father of the Ogidi and Erumole while Ogidi became the Eminiwa, Erumole became Eminio and both children of PA. Akaka inherited the land from their father. This piece of evidence, it is submitted is not contradicted by the Appellants.
On the basis of the above, it is submitted that the trial Court properly evaluated the evidence at the trial before coming to conclusion. See Anekwe v. Nweke (2015) EJSC (Vol. 2 ) 42 at 62
Finally, the Court is urged to uphold the decision of the trial Court and accordingly dismiss the appeal.
RESOLUTION OF ISSUES
This appeal will be considered and determined under the Respondents issue for determination thus:
Whether from the oral and documentary evidence placed before the lower Court, the learned trial judge was right to have dismissed the appellant’ claims? This issue is formulated in respect of grounds 1 and 2 of the Notice of Appeal.
This appeal borders on the claim for the ownership of a disputed land of Eminio and Oniloda family land situate at Omi Oloko and Igimokogo
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area of Odo-Ado, Ado Ekiti.
It appears that both sides of the divide are at one that it is now settled law that there are five ways of establishing title to land. This is as set out in the case of Idundun v. Okumagba (1976) NMLR 200 at 210 per Fatayi Williams JSC (as he then was and of blessed memory) as follows.
“As for the Law involved, we would like to point out that it is now settled that there are five ways to which ownership of land may be proved:
(i) Ownership of land may be proved by traditional evidence.
(ii) Ownership of land may be proved by production of documents of title which must be duly authenticated in the sense that their due execution must be proved.
(iii) Acts of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner. See EKPO V. ITA 11 NLR 680.
(iv) Acts of long possession and enjoyment of the land which may be prima facie evidence of ownership of the particulars piece or parcel of land or quantity of land. See Section 45 of the Evidence Act.
Finally, acts of long possession of connected or adjacent land in
26
circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
The case of Idundun v. Okumagba (Supra) was closely followed by Piaro v. Tenalo (1976) 12 SC 31. See also Balogun & Ors v. Akanji & Anor (1988) Vol. 19 1 NSCC 180, (1988) 1 NWLR (pt. 70) 301, Onwugbufor & Ors v. Okoye & Ors (1996) 1 NWLR (Pt. 422) 252, Mogaji v. Cadbury Nig Ltd (1985) 2 NWLR (Pt. 7) 393, Alli v. Alesinloye (2000) 6 NWLR (Pt 600) 177, Eze v. Atasie (2000)10 NWLR (Pt 676) 450.
In this suit, the Appellants herein as plaintiffs before the trial Court placed reliance on traditional evidence in their bid to establish their title to the land in dispute. The law is now settled that where a person relies on traditional history as their root of title, the onus is on them to plead the root of title and names and history of the ancestor. They should lead evidence to establish same without any missing link. See Anyanwu v. Mbara (1992) 5 NWLR (Pt 242) 386, Akinloye v. Eyiola (1968) 2 NMLR 92, Owoade v. Omitola (1988) 2 NWLR (Pt 77) 413.
A Court has no jurisdiction to supply any missing
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link in a genealogical tree from progenitor to a claimant. See Odi v. Iyala (2004) 4 SCNJ 35 at 54.
It should also be stated clearly that the weakness of the defendants case in a land suit touching on declarations as herein, does not assist the plaintiff case. They swim or sink with their own case. See Animashaun v. Olojo (1991) 10 SCNJ 143, Dantata v. Mohammed (2000) 7 NWLR (PT. 664) 176, Ekundayo v. Baruwa (1965) 2 NWLR 211, Nwokidu v. Okanu (2010) 3 NWLR (PT. 118) 362, Dumez Nig Ltd v. Nwakhoba (2008) 18 NWLR (Pt 1119) 361 at 373-374 wherein it was graphically captured that the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlements to the declaration by his own evidence. Therefore if the onus on the plaintiff is not discharged by credible cogent and satisfactory evidence, the weakness of the defendants case will not help the claimants and the judgment will be for the defendants. See Matanmi v. Dada (2015) EJSC (Vol. 7) 43 SC, Anyafulu v. Meka
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(2014) 16 WRN 52 at 76.
In this particular case at hand, I see a situation of conflicting claims by parties to a given parcel of land and each of the opposing parties trace their rights to a common holder and can establish proof of title by any of the acceptable methods of proof then the party who establishes a better title to the piece of land will be entitled to judgment. See Idowu v. The Registered Trusee of Ona Iwa Mimo Cherubim and Seraphin Church of Nigeria (2012) Ltd (2012) 49 WRN 53, DAN Asabe & Anor v. Babale (2013) LPELR- 22360 (CA).
Parties in this matter have both advanced arguments of their ownership of the land in dispute through inheritance. The law is well settled that in a claim for declaration of Title to land based on inheritance from ancestor, the claimant must adduce evidence on the names or the history of the several progenitors appurtenant to him down the line to him. He must plead and give evidence and in this case the persons who have held title or on whom title devolved in respect of the land before the 2nd to 5th respondents took control of the land. Also who founded the land and how it was founded. This principle of law
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applies to both the plaintiff and the defendants. SeeIbikunle v. Lawani (2007) 3 NWLR (PT. 1022) PAGE 58 AT 598, Lawal v. Olufowobi (1996) 10 NWLR (PT. 477) 179, Odi v. Iyala (2004) 8 NWLR (PT 875) 283, Eze v. Atasie (2000) 10 NWLR (PT. 676) 470, Onyido v. Ajemba (1991) 4 NWLR (Pt 184) 205, Nikor v. Ogwo (2010) 5 NWLR (Pt 1187) 281 at 299.
Therefore, in order to establish title, a claimant must prove
(i) Who founded the land
(ii) How the land was founded
(iii) The particulars of the intervening owners through whom he claims title. See also Ohiaeri v. Akabeze (1992) 2 NWLR (PT 221) 1, AKINLOYE V. Eyigulo (1986) 4 NWLR (Pt 18) 92, Magaji v. Cadbury Nig Ltd (1985) 2 NWLR (Pt 7) 393, Elegushi v. Oseni (2005) 14 NWLR (PT. 945) 348.
By the evidence of the Respondents and the cross-examination therefrom, the resume or gist of which have been stated herein before the Respondents have discharged the evidential burden of proof that had shifted on them after the Appellants had discharged the initial burden of proving their title to the land in dispute. This is so because the evidence of the Appellant did not establish how they came to acquire
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title to the land in dispute and did not prove who founded the land in dispute and who their ancestors were as required by law. Therefore the learned trial judge was right and/or justified in re-evaluating the evidence and having found that the evidence of the Respondents weighed heavier than that of the Appellant, entered judgment in favour of the Respondent.
The Supreme Court in defining forms of evaluation of evidence in Chief Samusideen Afolabi Ayorinde & Ors v. Chief Hassan Sogunro & Ors Rhodes- Vivour JSC on pages 22-23 paragraph E-D as follows:
“Evaluation of evidence comes in two forms:
(a) Findings of fact based on the credibility of witnesses and
(b) Findings based on evaluation of evidence. In (a) an appeal Court should be slow to differ from the trial judge. After all, it was he that saw and heard the witnesses, he watched their demeanour and so his conclusion must be accorded some respect. But in (b) an appeal Court is in a good a position as the trial Court to evaluate the evidence. In both A & B, the conclusion of the trial judge should be accorded much weight except if found to be perverse. Trial Courts
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receive evidence. That is perception. It is then the duty of the Court to weigh the evidence in the context of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation.”
In the present case at hand, the evaluation of evidence and the decision of the lower Court is not perverse and indeed, it can not be faulted. The lower Court was therefore right to have dismissed the Appellant’s claim.
This issue is resolved in favour of the Respondents and against the Appellants.
All the Appellant witnesses CW1, CW2 and CW3 maintain that Eminiwa family has gone into extinction. The Appellants assert that Erumole became the second holder of Eminio Chieftaincy title having succeeded his late father, Chief Akaka. The eldest son, Ogidi was so powerful and aggrieved that he did not succeed his father’s title being the eldest son of Chief Akaka and was therefore pacified with an honourary Chieftaincy title of Eminiwa by Ewi Awamaro being father in-law to Eriminiwa Akaka because Chief Akaka married Oja Olatisade, a daughter to Ewi. Chief Ogidi who was the first and the last holder of the
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Chieftaincy title of Eriminiwa had no wife and no child. There was no one to ascend to the stool of the Honourary title of Eminiwa given to him and thus the title died naturally.
Against the above background, it was admitted under cross-examination that one Julius Omilusi later became the head of Eminiwa family and also a treasurer to the larger family. The implication of this state of affairs is that Omilusi having a treasurer in the large family had attained a status in the family more than other members of the family. It would seem to follow that one can not talk of family he belongs to. That was the position taken by the Supreme Court in Adeyemi v. Opeyori (Supra). Also Exhibit 2 tendered by the first Appellant CW2 revealed that Eminiwa family group 1 branch of the family was in existence contrary to Appellant contention when the said exhibit was made in 2013 before the institution of this suit. In addition, the head of Eminiwa group Pa Omilusi was then the treasurer to the larger family.
Hitherto, paragraphs 6 (K-O) of the defendants statement of defence, the 2nd-5th defendants had stated, the 2nd-5th defendants had stated that they are from
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Chief Ogidi Eminiwa and the tree of geneology can be traced therefrom.
In furtherance to the above, CW2 stated under cross examination that “Emino is from Akaka, Eminiwa is from Akaka, Opon is from Akaka, Oluloda is from Akaka.” CW2 also admitted that “Eminio and Eminiwa are the first two Chiefs in the family before Oluloda Chieftaince was created.” The uncontroverted and unchallenged evidence of DW1, the Chairman of Emino family was that “We have five Chief in the family namely Eminio, Opon, Odofin, Enisa, Eminiwa and Oluloda. The founder of the family was Akaka whose children were Emino and Eminiwa. I am from Emino branch, from Eminiwa branch; I know Ayodele, Omilusi, Adamolekun and all of them had children.”
This piece of evidence was not also challenged by the Appellants. All these are fact that 2nd-5th respondents and the appellants are from same extended family. It was also shown during the trial that the family have two meeting segments while the “Eminio, upon and Odofin Inisa have their meeting together in a place as the lower house (Odo-Ile ), Eminiwa and Oluloda also have their meeting to gather as
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the upper house (Oke Ile).” Also CW3 admitted under cross-examination that “I am a tenant to the five families through my father”. In kuti v. Alashe (2005) 17 NWLR (Pt. 955) 625 at 651 “where people have the same progenitor, they would be equally entitled to the rights and be subjected to the same constraints.”
Exhibit 2 states that the “Eminiwa family was under Oniloda family as at then, the head of Eminiwa family was one Omilusi and was treasurer of Oniloda family up till now.”
The said Exhibit 2 was made at the time Eminiwa family branch of the family had not gone into extinction as at 2017.
So I do not agree with the argument and submission of the Appellant having regards to the pleadings and evidence before the trial Court that the Eminiwa family had gone into extinction.
This issue is resolved in favour of the Respondents and against the Appellants.
On the whole, I find no merit in this appeal. The appeal fails and it is hereby dismissed.
The judgement of the lower Court dated 19th March, 2019 is hereby affirmed.
The cost of N50, 000.00 Naira is awarded to the Respondents.
Appeal Dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
FATIMA OMORO AKINBAMI, J.C.A.: This appeal is against the decision of the Ekiti State High Court, delivered on the 19th day of March, 2019 wherein all the claims of the Appellants were dismissed.
I have had the advantage of reading in advance the judgment just delivered by my learned brother PAUL OBI ELECHI, JCA.
All the issues for determination in the appeal have been extensively and exhaustively dealt with in the judgment. I have nothing useful to contribute to the well researched reasoning and conclusions arrived at in the lead judgment.
I adopt same as mine and accordingly dismiss the appeal.
I abide by the consequential orders.
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Appearances:
J.J. Tijani Esq. For Appellant(s)
Opeyemi Ogunremi Esq. For Respondent(s)