FOLORUNSHO v. AREMU (2022)

FOLORUNSHO v. AREMU

(2022)LCN/16683(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Thursday, April 28, 2022

CA/IL/7/2019

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

ALHAJI KAYODE FOLORUNSHO APPELANT(S)

And

DAUDA AIKORE AREMU RESPONDENT(S)

RATIO

THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

A Plaintiff who seeks declaration of title to land must first prove his root of title to the land. Where the Plaintiff traces his title to a particular person, he must further prove how that person got his own title or came to have the title vested in him, including, where necessary, the family that originally owned the land. The burden of proof on the Plaintiff is not discharged even where the scales are evenly weighted between the parties. See ARCHIBONG VS EDAK (2006) 7 NWLR PT. 980 PG. 487, DIKE VS OKOLOEDO (1999) 10 NWLR PT. 623 PG. 359, OTANMA VS YOUDUBAGHA (2006) 2 NWLR PT. 964 PG. 337. It has been long settled that there are five ways of proving OR establishing title to OR ownership of land. The five ways has already been recapped earlier in this Judgment. See AYOOLA VS ODOFIN (1984) 11 SC PG. 120, EWO VS ANI (2004) 17 NSCQR PG 36, NKADO VS OBIANO (1997) 5 NWLR PT. 503 PG. 31, NKWO VS IBOE (1998) 7 NWLR PT 558 PG 354, ADESANYA VS ADEROUNMU (2000) 6 SC PT II PG. 18. PER NDUKWE-ANYANWU, J.C.A.

WHETHER OR NOT A PARTY RELYING ON EVIDENCE OF TRADITIONAL HISTORY IN AN ACTION FOR DECLARATION OF TITLE TO LAND, MUST PLEAD HIS ROOT OF TITLE

The party who is relying on evidence of traditional history must plead his root of title. He must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. Also, where a person traces the root of his title to a person OR family he must establish how that person or family also came to have title vested in him OR it.
The principle applies to the Defendant as well. IBIKUNLE VS LAWANI (2007) 3 NWLR PT. 1022 PG. 580, OKOKO VS DAKOLO (2006) 14 NWLR PT. 1000 PG. 401. PER NDUKWE-ANYANWU, J.C.A.

THE POSITION OF LAW WHERE A PARTY RELIES ON TRADITIONAL HISTORY AS PROOF OF HIS ROOT OF TITLE

THE BURDEN OF PROOF WHERE A PLAINTIFF CLAIMS A DECLARATION OF TITLE TO LAND

A Plaintiff who claims a declaration of title to land has the burden of settling out clearly by who and how the land was founded and the names of persons who had exercised acts of ownership on the land before it devolved upon him. OLOKOTINTIN VS SARUMI (2002) 13 NWLR PT. 784 PG. 307. Having failed to establish that the Olobi family were the rightful owners or put differently that the Olobi had title to the land sold to the Appellant’s father. This means that the Olobi family had no right to the land in issue. They cannot part with property that is not vested in them. There is total absence of facts about the founding of the land, the person who founded land and exercised original right of ownership on it and the person on whom title has devolved in respect of the land since the founding before the Appellant purportedly acquired it by purchase. If the genealogy is not pleaded and established by credible evidence in accordance with the principle laid down in KOJO VS BONSIE (1957) 1 WLR PG. 1223, AKPAPUNA VS NZEKA II (1983) 7 SC PG. 1, EBOHA VS ARAKWENZE (1967) NWLR PG 140, IDUNDUN VS OKUMAGBA (Supra), LAWSON VS AFANI CONTINENTAL COY NIG LTD (2001) LPELR 9155, ODI VS IYALA (2004) LPELR 2213. Where Tobi JSC held:
“A Plaintiff who claims ownership of land must prove his title in any of the five ways enumerated in IDUNDUN VS OKUMAGBA (Supra) where he fails to prove title, the case must be dismissed. He is not entitled to a non-suit to repair his original case. In GOLD VS OSASEREN (1970) 1 ALL NLR PG 125, this Court held that if a party fails to establish his title to land his action should be dismissed instead of entering a non-suit against him.” PER NDUKWE-ANYANWU, J.C.A.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kwara State delivered on 3rd May, 2017 by M.A. Folayan J. dismissing all the reliefs sought by the Appellant against the Respondent and also struck out the Counter-Claim of the Respondent.

The brief fact of this case is that the Olobi Family were said to be warriors who followed Sheik Alimi from Iseyin to Ilorin. The Olobi family members were settled in Iyemaja Oyalu Ogbondoroko in Asa Local Government. It was said the Olobi family exercised Rights of Ownership and possession.

The Olobi family later sold the land at Iyemaja Oyalu to the Claimant’s father.

After sometime, the Claimant’s father noticed that there was trespass on the land by the present Respondent. The Claimant’s father commenced an action via an originating summons, however, the learned trial Judge ordered the parties to file and exchange pleadings. The Claimant filed his writ and sought the following reliefs namely:
i. A declaration that the Claimant is the owner of the piece of land measuring 24.046 Hectares situates along Iyemaja Oyalu Village along Oko-Olowo Eiyenkorin Express Road formerly Ilorin/Iboda – Saadu Bye Pass, Ilorin Kwara State delineated in the Survey Plan No: SOS/KW/87/219 dated 24th August, 1987 prepared by Samson Ozi Sanni, licensed Surveyor and covered by Customary Right of Occupancy No: 2962 dated 10th September, 1987 issued by the then Ilorin Local Government.
ii. A declaration that the Clamant is the owner of the piece of land measuring 18.095 Hectares situated along Iyemaja Oyalu Village along Oko-Olowo Eiyenkorin Express Road formerly Ilorin/Ibode – Saadu Bye Pass, Ilorin Kwara State delineated in the Survey Plan No: SOS/KW/87/219 dated 24th August, 1987 prepared by Samson Ozi Sanni, licensed Surveyor and covered by Customary Right of Occupancy No: 2962 dated 10th September, 1987 issued by the then Ilorin Local Government.
iii. N5,000,000.00 only damages against the Defendant for trespass.

After a full trial, the learned trial Judge delivered it’s considered judgment and held that the Claimant failed to discharge the burden of proof placed on him as to shift the onus on the Defendant to make a defence. The Claimant’s case was therefore dismissed. The learned trial Judge also struck out the counter-claim for non-compliance with the Rules of the Court.

The Claimant was naturally irked by this judgment and filed his notice with 6 Grounds on 31st July, 2017. The Claimant as Appellant filed his Appellant’s Brief on 18th June, 2020 but deemed properly filed and served on 18th November, 2020.

The Appellant also filed the Appellant’s reply brief on 31st January, 2022.

The Appellant in its brief articulated four (4) Issues for determination as follows:
a. Whether the lower Court rightly held that, there is no evidence before this Court for the Court to give a verdict that, Olobi family is the owner of the land and has power to sell or transfer it (Ground 1)
b. Whether the lower Court rightly held that, the sales agreement which forms the foundation of Exhibits 2 and 3 (Right of Occupancy and Survey Plan) has been discredited and further held that Exhibits 2 and 3 are useless (Ground 3)
c. Claimant’s evidence is inconclusive and insufficient to have entitled him the ownership of the land in dispute and therefore dismissed the Appellant’s claim on the ground that the onus of proof which rest on him had not been discharged (Grounds 2, 4 and 6)
d. Whether from the circumstances of the case at lower Court, the lower Court wrongly dismissed the case where neither the Plaintiff nor the Defendant is entitled to the land in dispute, the Court ought to non-suit instead of a dismissal. (Ground 5)

The Respondent in his brief donated only one issue for determination:
“It is most humbly submit that from the grounds of appeal filed in this case, the issue that call for Lordships determinations is whether the learned trial judge was not right in dismissing the Appellant’s action for declaration of title to land, the claim of damages and perpetual injunction for his failure to establish the burden of proof required to entitle him to judgment.”

I will utilise the four (4) issues donated by the Appellant and the one issue by the Respondent in the determination of this appeal.

ISSUE 1
Learned Counsel for the Appellant submitted that the lower Court was in error when it held that there was not sufficient evidence to show that the Olobi family are the owners of the land the subject matter of this appeal.

Counsel argued that Sheik Alimi settled the forefather of the Olobi family in this land. They had since then exercised acts of ownership and possession until they sold the land to the Appellant’s Father. CW1 in his evidence stated the fact that the Olobi family settled on the land first and had powers of sale which the Respondent did not cross-examine on that OYEWINLE VS. IRAGBIJI (2012) ALL FWLR PT. 731 PG 1536. CW1 also gave evidence of allocating parts of their land to Mallam Lagbe and Mallam Raheem of Kelebe family for farming purposes.

Counsel argued that the Court suo motu raised some questions:
a) Whether Olobi family have the ruins of the houses where they live at iyemoja?
b) Whether past or present ever lived or had been in actual possession of the land?
c) Whether the Iyemoja Oyalu taken by conquest?
d) Whether Iyemoja Oyalu had been existing before the land was given to Olobi family? e.t.c.

Counsel argued that the trial Judge never gave the parties chance to address him on the Issues raised suo motu See JEV VS. IYORTYOM (2014) ALL FWLR PT 747 PG 749.

Counsel argued that CW1 and CW2 gave credible evidence which was not contradicted. Also, where the trial Court fails to evaluate the evidence it would be likely to be set aside as being perverse See BUNYAN VS AKINGBOYE (1999) 7 NWLR PT 609 PG 31.

Counsel submitted that the decision of the trial Court was perverse as it runs contrary to the evidence adduced in the lower Court. See EBBA VS OGODO (2000) FWLR PT. 27 PG 2094.

Counsel submitted that the learned trial Judge was wrong when it held that there was no evidence before the Court to say that the Olobi family are the owners of the land in dispute.

Counsel finally urged the Court to evaluate the evidence and resolve this issue in favour of the Appellant.

ISSUE 2
The learned Counsel to the Appellant submitted that the trial Judge erred in law when he questioned the integrity of Exhibit 1 & 1a, when Lambo J. Akanbi’s age at the bar was questioned and as the documents were executed in 1977. It was the Respondent’s Counsel that asserted that Lambo J. Akanbi was not a lawyer as at 1977 but did not prove it. GAMBARI VS. IBRAHIM (2012) ALL FWLR PT 644 PG 59 where the Court held thus? Counsel argued that it was in the pleading of the Respondent that he challenged that Lambo Akanbi was not a lawyer in 1977. It was the evidence of the Appellant and the lower Court that he was a lawyer in 1977 and made Exhibit 1.

Counsel submitted that it was wrong for the trial Judge to discredit Exhibit 1 because the Respondent had challenged the authenticity of the lawyer that prepared the document Exhibit 1.

ISSUE 3
Counsel submitted that the lower Court failed to evaluate all the material evidence placed before it before arriving at its decision. See ISIAQ VS OKANLAWON SONIYI (2009) ALL FWLR PT 498 PG 347.

Counsel urged the Court to re-evaluate the evidence placed before the lower Court.

Counsel also agrees that for the Appellant to succeed in a claim for declaration of title to land, the onus is on the claimant to establish his claim on the strength of his case and not on the weakness of the Respondent’s case. ODIKANWA VS IHEANACHO (2010) ALL FWLR PT. 1179. MOGAJI VS ODOFIN (1978) 4 SC PG 91, YUSUF VS KODE (2002) FWLR PT 86 PG 464.

Counsel referred the Court to the four methods of proving title to land:
a. Tradition evidence.
b. Production of document of title.
c. Acts of ownership, numerous and positive enough to warrant an influence that the person is the true owner (e.g. selling and renting out or farming on the land).
d. Act of long possession and enjoyment of the land under Section 146 of the Evidence Act; and
e. Possession or Ownership of an adjacent land (under Sections 46 of the Evidence Act).

Counsel submitted that the Appellant was able to prove his case by means of Traditional Evidence, Production of Title Document, and by Acts of Ownership and Possession.

Counsel urged the Court to resolve this issue in favour of the Appellant.

ISSUE 4
Counsel submitted that the learned trial Judge wrongly dismissed this case instead of to non-suit the case. Counsel argued that the evidence of the Appellant in the lower Court was enough to ground him the declaration of title he claimed. Dismissing the Appellant’s claim in the trial Court had occasioned a miscarriage of Justice.

Counsel therefore urged the Court to resolve these issues in favour of the Appellant and allow this appeal.

In response, the Respondent raised only one encompassing issue that he argued in his unpaginated brief.

Learned Counsel for the Respondent submitted that the Appellant only claimed that his forefathers were warriors who followed Sheik Alimi to Ilorin and were subsequently settled on the dispute land.

The land was already named Iyemaja Oyalu and there was no evidence that it was the Olobi’s that named that area. The Appellant did not plead or prove by credible evidence as to who founded the land.

Counsel submitted further that where a Claimant is basing his title to the land in dispute, by grant, the grantor and his successors must be pleaded and proved. See NZEKWU VS NZEKWU (1989) 2 NWLR PT. 107 PG. 373.

CW1 is the head of the Olobi family who testified as to how the family was settled there by Shiek Alimi. He could not however, attest to the extent of the land in issue.

CW2 is the Appellant who states in evidence that Exhibit 1-3 was given to him by his father. He was not sure whether the extent of the land was measured when his father bought the land. The Appellant did not plead that the Olobis were the first settlers on the land in dispute.
The Appellant did not plead that Sheik Alimi owned the land he settled the Olobi family on. The Appellant also could not produce the boundary men to Court to testify.

Counsel conceded that the trial Judge suo motu asked the Rhetoric question to ascertain whether the evidence proffered by the Appellant answered those questions.

Counsel argued that where the trial Court has performed its primary role of evaluation of evidence, creditability, the Appellate Court has no business in upturning such findings. See EBBA VS OGODO (1984) 4SC PG 84, WOLUCHEM VS GUDI (1981) 5 SC PG 291, ODOFIN VS AYOOLA (1984) 11SC PG 72.

Counsel finally stated that the trial Court had done substantial justice to the Appellant by dismissing his claim for not having enough evidence to sustain it. Counsel thereafter urged the Court to resolve his issue in favour of the Respondent and dismiss this appeal for lacking in merit.

RESOLUTION
A Plaintiff who seeks declaration of title to land must first prove his root of title to the land. Where the Plaintiff traces his title to a particular person, he must further prove how that person got his own title or came to have the title vested in him, including, where necessary, the family that originally owned the land. The burden of proof on the Plaintiff is not discharged even where the scales are evenly weighted between the parties. See ARCHIBONG VS EDAK (2006) 7 NWLR PT. 980 PG. 487, DIKE VS OKOLOEDO (1999) 10 NWLR PT. 623 PG. 359, OTANMA VS YOUDUBAGHA (2006) 2 NWLR PT. 964 PG. 337. It has been long settled that there are five ways of proving OR establishing title to OR ownership of land. The five ways has already been recapped earlier in this Judgment. See AYOOLA VS ODOFIN (1984) 11 SC PG. 120, EWO VS ANI (2004) 17 NSCQR PG 36, NKADO VS OBIANO (1997) 5 NWLR PT. 503 PG. 31, NKWO VS IBOE (1998) 7 NWLR PT 558 PG 354, ADESANYA VS ADEROUNMU (2000) 6 SC PT II PG. 18.

The Appellant in his evidence on oath and viva voce in Court claimed that his father bought the land in issue from Olobi family. The Appellant claimed the Olobi family were warriors from Iseyin, so they were not natives. The Appellant also claimed that Olobi family followed Sheik Alimi who himself was not a native. It was this Sheilk Alimi who settled the Olobi family in Iyemaja Oyalu. It is not certain how this land was acquired by Sheik Alimi who settled the Olobi family.
The Appellant in this case relied on traditional history. Purchase of land vide the documents of title and also by acts of ownerships OR possession.
The party who is relying on evidence of traditional history must plead his root of title. He must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. Also, where a person traces the root of his title to a person OR family he must establish how that person or family also came to have title vested in him OR it.
The principle applies to the Defendant as well. IBIKUNLE VS LAWANI (2007) 3 NWLR PT. 1022 PG. 580, OKOKO VS DAKOLO (2006) 14 NWLR PT. 1000 PG. 401.
The Appellant traced his root of title to Sheik Alimi who is not a native of that area. It is necessary to prove how he acquired land to settle the Olobi family.
In pleading traditional history in a claim for declaration of titles, the Plaintiff/Applicant in this appeal is expected to narrate the genealogical tree from the original owner, the ancestors in generation appointment to him down the line to the claimant/Appellant.
In other words, he must provide who founded and the circumstances leading to it, and the successive person to whom the land thereafter, devolved through an unbroken chain OR in such a way that there is no gap which cannot be explained. See ODI VS IYALA (2004) 8 NWLR PT. 875 PG 283, EWO VS ANI (Supra).

In this appeal, the Appellant could only trace his title to the Olobi family. It is not certain how the Olobi family was settle there. The Olobi could not have claimed the land as they were not proved to be the original owners as the area was already named before their settling. This already shows that there must be people other than the Olobi family which were the original owners.
The Respondent in this appeal also relied on traditional history in proof of his case. He is expected to plead his proof of title. He too must show in his pleadings who those ancestors of his were and how they came to owned and possess the land and eventually pass it to him. This principle also applies to the Respondent. See IBIKUNLE VS LAWANI (Supra), OKOKO VS DAKOLO (2006) 14 NWLR PT 1000 PG 401.
The Respondent in proof of his case against the Appellant fielded many witnesses who testified that their forefathers of the Iyemaja family of iyemaja founded Iyemaja Village over 300 year ago. The land in issue is part of Sabi Iyemaja family land. They testified that the Sabi Iyemaja family were predominantly farmers and had been farming on the land all these years without any disturbance. The Respondent’s witnesses also testified that so many families left the area when there was a pestilence but their family kept faith and stayed behind. They also testified that the Appellant was related to the Olobi family who never owned any land in iyemaja.
The Respondent in proof of his title to this land pleaded a long list of their forefathers and their descendants who had exercised acts of ownership and possession on the disputed land within their own ancestral land.
Where the Appellant and Respondent in this appeal anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial Court is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier. See IBIKUNLE VS LAWANI (Supra), OKOKO VS DAKOLO (Supra).

It is trite that a party seeking for declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say, he must demonstrate in his pleading the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. When a party has not given sufficient information in his pleading as regards the origin OR ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim. See HYACINTH ANYANWU VS ROBERT ACHILIKE MBARA (1992) 5 SCNJ PG. 90, IDUNDUN VS OKUMAGBA (1976) 9-10 SC PG. 224, ATANDA VS AJANI (1989) 3 NWLR PT. III PG 511 Per Okoko JSC in ANYAFULU VS MADUEGBUNA MEKA (2014) LPELR 22336.

The Appellant in this case only alleged that his father bought the land from the Olobi family who alleged that Sheik Alimi settled them there. This pleading without more stops at Sheik Alimi. It was not pleaded nor proved how Sheik Alimi came about the land as he was not a native.
The Respondent in his own pleading pleaded his ancestors before him and how the land was founded.

They had farmed on the land from time immemorial beyond the Olobi family who they stated had no land in Iyemaja.
Clearly, it is settled that a Plaintiff wins by the strength of his case and not on the weakness of the Defendant’s case ODIKANWA VS. IHEANACHO (Supra). A party is only entitled to judgment if a trial Court believes and accepts his evidence and if such evidence supports his case. See BELLO VS ARUWA (1999) 8 NWLR PT 615 PG 454.

The Appellant in this appeal has not been able to prove his case by traditional history. The Appellant has not proved that the Olobi family who sold the land to his father had title to the land to be able to sell the land to the Appellant. A Plaintiff who claims a declaration of title to land has the burden of settling out clearly by who and how the land was founded and the names of persons who had exercised acts of ownership on the land before it devolved upon him. OLOKOTINTIN VS SARUMI (2002) 13 NWLR PT. 784 PG. 307. Having failed to establish that the Olobi family were the rightful owners or put differently that the Olobi had title to the land sold to the Appellant’s father. This means that the Olobi family had no right to the land in issue. They cannot part with property that is not vested in them. There is total absence of facts about the founding of the land, the person who founded land and exercised original right of ownership on it and the person on whom title has devolved in respect of the land since the founding before the Appellant purportedly acquired it by purchase. If the genealogy is not pleaded and established by credible evidence in accordance with the principle laid down in KOJO VS BONSIE (1957) 1 WLR PG. 1223, AKPAPUNA VS NZEKA II (1983) 7 SC PG. 1, EBOHA VS ARAKWENZE (1967) NWLR PG 140, IDUNDUN VS OKUMAGBA (Supra), LAWSON VS AFANI CONTINENTAL COY NIG LTD (2001) LPELR 9155, ODI VS IYALA (2004) LPELR 2213. Where Tobi JSC held:
“A Plaintiff who claims ownership of land must prove his title in any of the five ways enumerated in IDUNDUN VS OKUMAGBA (Supra) where he fails to prove title, the case must be dismissed. He is not entitled to a non-suit to repair his original case. In GOLD VS OSASEREN (1970) 1 ALL NLR PG 125, this Court held that if a party fails to establish his title to land his action should be dismissed instead of entering a non-suit against him.”
The Appellant in this case has failed to prove the genesis of his own title. The Appellant just named the Olobi family as the vendor but failed to prove the title of the Olobi family, how did they come by the land. Having failed to prove the title of the Olobi, the purchase of the Appellant’s father is now void.
The Olobi family had no right in the property they purportedly sold to the Appellant’s father. One cannot give what he does not possess.

Production of documents of title is also one of the five ways of proving title to land. However, mere production of title documents does not suffice. Production of title is a prima facie proof of title. It does not necessarily mean that once a Claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire unto some OR all of a number of questions, including:
1) Whether the document is genuine or valid.
2) Whether it has been duly executed, stamped and registered.
3) Whether the grantor had the authority and capacity to make the grant.
4) Whether the grantor had in fact what he purportedly to grant.
5) Whether it has the effect claimed by the holder of the instrument.”
See ROMAINE VS ROMAINE (1992) LPELR 2953 Per Nnaemeka-Agu JSC. See also OGAH VS GIDADO (2013) LPELR 20298, LATEJU VS FABAYO (2012) 1 NWLR PT. 1304 PG 159, KANGAMA VS NAMNAI (1997) 3 NWLR PT. 495 PG 54 9, MADU VS MADU (2008) 6 NWLR PT. 1083.
I have already held earlier on in this judgment that the Appellant had not proved that the Olobi family had title OR capacity to sell the land purportedly sold to the Appellant’s father. Therefore, having held that the Olobi family had no right over the disputed land, the title document Exhibit 1 and 1a cannot and did not pass any title to the Appellant’s father.
The Statutory Right of Occupancy which was generated from Exhibit 1 and 1a are also voidable as it stemming from a document that has no value.

Having said as much, this appeal is without merit. It is hereby dismissed. I affirm the judgment of the lower Court. Cost to the Respondent is accessed at N250,000.00.

ISAIAH OLUFEMI AKEJU, J.C.A.: As correctly found and held by my learned brother, UZO I. NDUKWE-ANYANWU, JCA, this appeal is without merit and I dismissed it. I abide by the consequential orders.

KENNETH IKECHUKWU AMADI, J.C.A.: I have read the draft of the judgment delivered by my learned brother, UZO I. NDUKWE-ANYANWU, JCA. I agree with his Lordship that this appeal has no merit. It is hereby dismissed by me too. I abide by the consequential orders made therein including the order as to cost.