GABRIEL OGUNLEYE & ANOR V. CHIEF S. O. JAIYEOBA & ANOR
(2010)LCN/4082(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of December, 2010
CA/B/17/2006
RATIO
DECLARATION OF TITLE TO LAND: BURDEN PLACED ON A PARTY THAT WANTS TO SUCCEED IN A CLAIM FOR DECLARATION OF TITLE TO LAND BASED ON TRADITIONAL HISTORY
Traditional history is one of the five ways in which a party can claim declaration of title to land. Idundun v. Okumagba (1979) 9/10 SC 227. To succeed in the claim for declaration of title to land based on traditional history; a party must trace his title to the original settler or grantee by credible, cogent and conclusive evidence to the satisfaction of the trial court. Atuanya v. Onyejekwe (1975) 3 SC 161. As submitted by learned Counsel for the respondents, he must prove who founded the land, how the land was founded and particulars of the intervening owners through whom he claims. Lawani Alli & 1 or v. Chief Gbadamosi Abasi Alesinloye & 8 ors (2000) 4 SCNJ 8 264 @268-269. See also the case referred to by Learned Counsel for the appellants: Ewo v. Ani [2004] 3 NWLR (Pt.861) 610 @628 D-E. PER CHINWE E. IYIZOBA, J.C.A
UNCHALLENGED EVIDENCE: WHETHER THE COURT CAN ACT ON AN EVIDENCE THAT WAS NOT CHALLENGED BY THE OPPOSITION PARTY WHO HAD THE OPPORTUNITY TO DO SO
Olohunde v. Adeyanju (2000) 6 SCNJ 470 @ 476 referred to by respondent’s counsel is good authority for the principle that where evidence of a party to a proceeding was not challenged by the opposition party who had the opportunity to do so, it is open to the court to act on such unchallenged evidence. The learned trial Judge cannot therefore be faulted for believing their evidence and accepting same as true. PER CHINWE E. IYIZOBA, J.C.A
ROOT OF TITLE BY GRANT: WHETHER IT IS NECESSARY TO SHOW THAT THE GRANTOR OF A TITLE TO LAND WAS INDEED THE OWNER OF THE PROPERTY GRANTED WHERE ONE CLAIMS TITLE BY GRANT
It is trite law that if one claims title by grant, it becomes necessary to show that the grantor was indeed the owner of the property granted. PER CHINWE E. IYIZOBA, J.C.A
IDENTITY OF THE LAND: WHETHER THE IDENTTY OF THE LAND IN DISPUTE MUST BE ASCERTAINED WITH CERTAINTY BEFORE AN ORDER OF DECLARATION OF TITLE CAN BE MADE
…it is the law that before an order of declaration can be made, the land in dispute must be ascertained with certainty. Adesanya v. Aderonmu (2000) 6 SCNJ 242 @ 257: Olusanmi v. Oshasona [1992] 6 NWLR (Pt. 245) 22 @ 28: Udeze v. Chidebe 119901 1 NWLR (Pt.125) 141: Makaniuola v. Balogun [1989] 3 NWLR (Pt.108) 122. PER CHINWE E. IYIZOBA, J.C.A
DECLARATION OF TITLE TO LAND: WAYS BY WHICH A PLAINTIFF IN AN ACTION FOR DECLARATION OF TITLE TO LAND CAN ESTABLISH THE IDENTITY OF LAND IN DISPUTE
In Ogun v. Akinyeu. [2004] 18 NWLR (Pt. 905)302, the Supreme Court restated the age-long principle that the plaintiff in an action for declaration of title to land can establish the identity of the land in one of two ways: (1) by adducing oral evidence describing the parcel of land with such degree of accuracy as would guide in producing a survey plan of the land or (2) by filing a survey plan reflecting all features of the land and showing clearly the boundaries of the land. PER CHINWE E. IYIZOBA, J.C.A
JUSTICES
NWALI S. NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
M.A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. GABRIEL OGUNLEYE
2. JULIUS AINA ATANLOGUN Appellant(s)
AND
1. CHIEF S. O. JAIYEOBA
2. ENGR. AKIN MEKAISU
(On behalf of themselves and The entire Igoba community Of Igoba village, near Akure) Respondent(s)
CHINWE E. IYIZOBA, J.C.A (Delivering the Leading Judgment): In the High Court of Justice, Akure Judicial Division of Ondo State, the reliefs claimed in Paragraph 32 of the further amended statement of claim, by the respondents against the appellants were as follows:-
“(i) A declaration that the plaintiffs are entitled to the customary right of Occupancy over about ten (10) hectares of Igoba communal land which is situate at Igoba village near Akure. The value of the land is about N3, 000,000; 00 (Three million naira).
(ii) The sum of N500, 000.00 (five hundred thousand naira) damages for Trespass committed on the said land by the defendants in May 2003.
(iii) An injunction to restrain the defendants, their servants, agents and privies from entering the said land.”
The parties filed and exchanged their respective pleadings in the trial court registry. During the hearing, the respondents as plaintiffs called 8 witnesses while the appellants as defendants called 4. The evidence adduced by the respondents was that their ancestors led by Oogunyakin, their progenitor migrated from Ile Ife and initially settled at Ode-Iye near Oba-Ile, Akure. As a result of incessant killing of their children by wild animals, they moved and finally settled at Igoba community 500 years ago. For centuries their long line of ancestors lived on the land, part of which is now in dispute, farmed it, built houses and leased out portions to tenants without any interference whatever from anybody until May 2003. They created two approved layouts on the land; one in 1982 and the second in 1987. They allocated several plots to many people who have built houses on the plots as far back as 1987. They claimed that the appellants did not trespass on phase one of the layout but in 2003, they trespassed into phase two of the layout removing beacons, pillars and illegally sold large portions of the land measuring 10 hectares without the knowledge and consent of the respondents. They claimed the appellants went further to surreptitiously survey the land in June 2003 and obtain approval for a layout on the land, which approval had earlier been granted the respondents in 1987 by Ondo State government. The respondents made representations to the government and a complaint to the police, and finally instituted this suit.
The appellants on their own part led evidence that the land in dispute measuring about 500 acres and situate at Agbeja was given to their ancestor Obasesin by Elemo Famuagun of Oba-Ite in appreciation of Obasesin giving him his daughter Mebila in marriage. Following the grant, Obasesin invited his brother, Atanlogun and together they farmed the land. The appellants’ evidence is that they have since the grant been in undisputed possession and had made several grants to other people who have also remained in undisputed possession. When they hired a surveyor to survey the land and create a layout, the respondents claiming ownership of the land got the 1st appellant arrested by the police. The police advised them to go to court as the police do not handle land matters. The appellants denied being in Igoba land and maintained that the land they occupy is in Agbeja land.
After due consideration of the evidence led by the parties and of the submissions of their counsel, the learned trial judge, Hon. Justice O.O. Akeredolu being satisfied that the evidence of the plaintiffs/respondents witnesses is more probable and more credible than that of the defendants/appellants gave judgment for the respondents against the appellants.
Dissatisfied with the judgment, the appellants lodged an appeal against it to this court. As usual the parties filed and exchanged briefs. Out of their four grounds of appeal in the notice of appeal, the appellants formulated two issues for the determination of this court. The respondents adopted the same two issues in their brief but split the issues into three to fall in line with the arguments as presented by the appellants in their brief. The issues are as follows:-
(1)Whether the trial court was not in error to have held that the respondents have sufficiently proved their title to the land when from the evidence they did not establish their root of title based on evidence of traditional history.
(2)Whether the respondents sufficiently identified the land with definite certainty to which their claim of title to land relates.
(3)Whether a party can rely on evidence of acts of ownership and long possession in proving his title where he does not have an exclusive right.
On issue No. 1, the thrust of the appellants’ argument is that the learned trial judge misinterpreted the trite principle of law that the onus is on the plaintiff seeking a declaration of title to land to satisfy the court that he is entitled to the relief on the evidence brought by him; and in doing this he must rely on the strength of his own case and not on the weakness of the defendant’s case.
Learned Counsel argued that the learned judge came to this error by his conclusion that the defendant did not plead the root of title of Elemo Famuagun of Oba-Ile who granted the land to Obasesin their ancestor and that Pw7 and Pw8 were not cross examined by the defendants on the traditional evidence they gave, thus leaving their evidence unchallenged. The contention of the appellant appears to be that they as defendants have no role to play in the matter; that it is a plaintiff who traces his root of title to someone that bears the burden of proving that person’s root of title. To support their contention, the appellants referred to several authorities including Alomaja v. Adewale [2004] 15 NWLR (Pt 897) 564 @5S8 where Muntaka Coomasie JCA observed:
“The failure of the 4th -7th Respondents to adduce evidence does not help the Appellants case. The claim is for declaration which is granted or refused at the discretion of the court, so it is their duty to prove it, even admission by the defendants will not entitle the appellants to judgment unless they prove their claim by preponderance of evidence. See Ngene v Chike Igbo [2000] 4 NWLR (Pt 651) 131. Romaine v Romaine [1992] 4 NWLR (Pt.238) 650/652”
Learned Counsel for the appellants in his brief then examined in detail the evidence led by the respondents and at the end submitted that the evidence fell short of traditional history required by law as it did not explain how their ancestor, Ogunyankin founded the land and did not explain the root of Ogunyakin’s title other than that he was a mere settler in Oba-Ile land in view of the several other settlers on the land.
In reply Learned Counsel for the respondents conceded that in a suit for declaration of title to land, the onus of proof lies on the plaintiff and he must succeed on the strength of his own case and not on the weakness of the defendant’s case. His success must not be because the defence offered weak evidence. He referred to the case of Ojo v. Azama [2001] 4 NWLR (Pt. 702) 57 @71 G-H. Learned Counsel then examined the relevant principles of law relating to declaration of title, the pleadings of the respondents and the evidence led and at the end urged the court to resolve the first issue against the appellants as the respondents established their title to the land by traditional evidence.
On this issue I shall begin by restating the very familiar principles of law relating to declaration of title to land as it relates to this case. Traditional history is one of the five ways in which a party can claim declaration of title to land. Idundun v. Okumagba (1979) 9/10 SC 227. To succeed in the claim for declaration of title to land based on traditional history; a party must trace his title to the original settler or grantee by credible, cogent and conclusive evidence to the satisfaction of the trial court. Atuanya v. Onyejekwe (19750 3SC 161. As submitted by learned Counsel for the respondents, he must prove who founded the land, how the land was founded and particulars of the intervening owners through whom he claims. Lawani Alli & 1 or v. Chief Gbadamosi Abasi Alesinloye & 8ors (2000) 4 SCNJ 8 264 @268-269. See also the case referred to by Learned Counsel for the appellants: Ewo v. Ani [2004] 3 NWLR (Pt.861) 610 @628 D-E.
Both Learned Counsel are in agreement as regards the principles. The disagreement arose from application of the principles to the facts of this case. In paragraphs 3, 4 and 5 of the further amended statement of claim, the respondents succinctly pleaded the founder of the land in respect of which they were seeking a declaration of title and how the land was founded. Evidence as to the pleading was given by Pw7 and Pw8. At page 24 of the record of proceedings Pw8 stated:
“The Igoba community acquired the land by settlement. Our 1st leader Ogunyankin migrated from Ile-Ife and settled initially at Ode-Iye near Oba-Ile near Akure. Finally they settled at the present Igoba site when their children were being killed through attack by wild animals at Ode-Iye. They moved to the present site at Igoba. This happened about 500 years ago.”
The respondents clearly pleaded and led evidence as to who founded the land and how it was founded. Learned Counsel for the appellants is wrong in his contention that the land was not founded by the ancestor of the respondents and that they did not explain how the land was founded or the root of title of the founder. I think Learned Counsel for the appellants either mistakenly or deliberately is under some misconceptions as to the nature of evidence required in these circumstances. The ancestor of the respondents founded the land from the pleadings and evidence by settlement. Settlement is a means of acquiring land under traditional history and when land is acquired by settlement that is the person’s root of title. Settlement does not recognize a previous title holder. Kode v Yussuf [2001] 4 NWLR (Pt. 703) 392. Contrary to the contention of the appellants, the respondents did not aver in their statement of claim and did not lead evidence that their ancestor settled in Oba-Ile. He settled initially at Ode-Iye near Oba-Ile from where they moved to Igoba. As regards particulars of intervening owners up to the present claimant, this is very well covered in paragraphs 5, 6, 7, 8, and 9 of the further amended statement of claim and the evidence of Pw7 and Pw8 at pages 20, 21, and 24 of the record of proceedings. Pw8 had testified thus:-
“Ogunyankin was a descendant of Oduduwa. As the leader, he was made the 1st Obalogun of Igoba after they settled on the land. Obalogun is the title of the king of Igoba. As a leader the Obalogun was to administer or control the land of the community. There were several Obaloguns who reigned in Igoba apart from Ogunyankin. I knew Obalogun Ajongbolo, later Obalogun Babalola and finally Obalogun Michael Agbogunleri who is my brother. He died last year on 27th December, 2003. From history told by our father there was also Obalogun Asuntere, Obalogun Ojaotemola, Obalogun Ajowonirin, Obalogun Oluwalokun, Obalogun Orundusi, Obalogun Atangade, Obalogun Ojopagogo, Obalogun Oyinlusi, Obalogun Afere are all I can remember now.”
In his brief Learned Counsel for the respondents had submitted that Obalogun Michael Agbogunleri was elected as Obalogun on 17th February 1997 and died on the 27th of December 2003. He was the 1st plaintiff in this case. His name was struck out after his demise. This fact was confirmed by the 1st defendant under cross-examination while testifying as Dw1. The respondents consequently pleaded and gave evidence of particulars of successive owners through whom they claimed from Obalogun Ogunyankin about 500 years ago until this case was instituted with the last Obalogun as 1st Plaintiff. All these were pleaded and given in evidence.
No questions were put to the witnesses under cross-examination by the appellants to discredit their evidence. Olohunde v. Adeyanju (2000) 6 SCNJ 470 @ 476 referred to by respondent’s counsel is good authority for the principle that where evidence of a party to a proceeding was not challenged by the opposition party who had the opportunity to do so, it is open to the court to act on such unchallenged evidence. The learned trial Judge cannot therefore be faulted for believing their evidence and accepting same as true. Having discharged the evidential burden on them, the onus naturally shifted to the appellants to substantiate their averments in their statement of defence. The appellants had claimed that the land was granted to their ancestor Obasesin by the Elemo Famuagun of Oba-Ile but they neither pleaded nor gave evidence of the root of title of the Elemo. Notwithstanding that the appellants did not make a counterclaim, it is trite law that if one claims title by grant, it becomes necessary to show that the grantor was indeed the owner of the property granted. Having failed to discharge the evidential burden, the learned trial judge was right in commenting on the issue and indicating her satisfaction that the plaintiffs proved their title to the land in line with their pleading.
The Learned trial judge did not thereby shift the burden of proof to the appellants. The respondents had already discharged the burden of proving their root of title. There is absolutely no reason to interfere with the finding of the learned trial judge. The first issue is resolved in the affirmative against the appellants.
On issue no.2, identity of the land, Learned Counsel for the appellants in his brief argued that the respondents did not identify the land in dispute with certainty.
Referring to authorities, he submitted that the learned trial judge was in error when he held that the respondents had proved the identity of the land in dispute by their pleadings and oral evidence when he did not consider the survey plan Exhibit P5 tendered by the appellants in support of their case. Learned Counsel argued that the trial Judge ought to have scrutinized the appellants’ exhibit P5 and compared it with the respondents’ survey plans Exhibits P3 and P4 to ascertain whether they are in respect of the same land. Counsel further argued that the learned trial Judge failed to consider the relevant portion of the evidence of the appellants’ witnesses before holding that the appellants’ evidence supported the case of the respondents.
The argument of counsel in essence is that the failure of the trial Judge to give due consideration to the evidence of witnesses called by the appellant and to reconcile the two different survey plans on record occasioned a grave miscarriage of justice. In reply learned counsel for the respondents also referring to authorities on identity of land submitted that the land in dispute upon which the declaration was granted to the respondents by the trial court was ascertained with certainty.
Counsel argued that the respondents pleaded and led evidence as to the identity and boundaries of the land in dispute which evidence the appellants failed to challenge at the trial. Counsel further argued that the appellants’ survey plan Exhibit P5 and the evidence of their witnesses related to land at Agbeja which is a different area from the land claimed by the respondents.
Both sides are again in agreement and it is the law that before an order of declaration can be made, the land in dispute must be ascertained with certainty.
Adesanya v. Aderonmu (2000) 6 SCNJ 242 @ 257: Olusanmi v. Oshasona [1992] 6 NWLR (Pt. 245) 22 @ 28: Udeze v. Chidebe [1990] 1 NWLR (Pt.125) 141: Makanjuola v. Balogun [1989] 3 NWLR (Pt.108) 122. A survey plan is helpful but not always a necessity. The test is whether a surveyor can from the evidence of the party produce an accurate plan of the land in dispute. Akulaku v. Yongo (2002) 2 SCNJ 246 @ 248. In Ogun v. Akinyeu. [2004] 18 NWLR (Pt. 905)302, the Supreme Court restated the age-long principle that the plaintiff in an action for declaration of title to land can establish the identity of the land in one of two ways: (1) by adducing oral evidence describing the parcel of land with such degree of accuracy as would guide in producing a survey plan of the land or (2) by filing a survey plan reflecting all features of the land and showing clearly the boundaries of the land. The question therefore is whether the land in dispute was ascertained with certainty before the trial Judge granted a declaration in favour of the respondents? To answer this question it is necessary to examine the pleadings and the evidence led by the parties on the identity of the land.
The respondents in paragraph 32(1) of their further amended statement of claim prayed for a declaration that they are entitled to the customary right of occupancy over about 10 hectares of Igoba communal land situate at Igoba village near Akure. The features and boundaries of the land are described in paragraphs 12, 13 and 14 of the statement of claim.
12. “Special features on the land include:- Igboyeye-where plaintiffs’ ancestors worshipped idols in the past, Arinoyun Stream, Akota Stream, Igbo Oluaye where Obalogun is being installed, Okuta Omolere where new Obalogun climbs immediately after installation.
13. The said piece of land is particularly described in survey plan No AKD/2627 prepared by D.O. Akingbogun, a licensed surveyor dated 26th February, 1983. The said survey plan is hereby pleaded.
14. From time immemorial Igoba community has her boundaries in some towns and villages which include:- Osi village, Ilado village, Abusoro village and Oba-Ile.
The respondents led evidence as to the identity of the land in conformity with the pleadings set out above. At page 17 of the record of proceedings Pw1 Chief Bolanle, the Obanla of Oba-Ile, a 65 years old man, native of Oba-Ile deposed:-
The plaintiffs are natives of Igoba. I don’t know the defendants as natives of Igoba….. I know the land in dispute. The land belongs to Igoba. Oba-Ile has large expanse of land. The land of Igoba and Oba-Ile are different from each other. Oba-Ile shares a boundary with Igoba. The boundary communities with Igoba are Isinigbo village, Osi village, Abusoro village, Ilado village and Odudi village”
It is surprising that the appellants did not subject this witness who is also from Oba-Ile to serious cross-examination in order to discredit his evidence which is at variance with their claim that the land in question is part of the portion granted to their ancestors by the Elemo of Oba-Ile. At page 20 of the record of proceedings, PW7 Bamidele Ezekiel Sunday, a native of Igoba testified:
“The land belongs to Igoba community. I know the boundaries of the land.
The land is bounded by Osi village, Isinigbo village, Ilado village, Abusehin village, and Oba-Ile village. There are some features on the land in dispute.
They are Igboyeye, where our ancestors worship idols, Arioyin Stream, Akota Stream, Igbo Oluaye where our ancestors were installed as King called Obalogun, Okuta Omo Olore where our king climbs after his installation as king and homage is paid to him by the community…..”
This witness was cross-examined but again no question was put to him as to the boundaries and features of the land. PW8 at page 24 of the record of proceedings also gave detailed evidence of the boundaries and features of the land as above. He also was not cross-examined on the issues. PW7 and PW8 gave evidence of the survey plan and the Layouts created on the land in 1982 and 1987. They tendered the survey plans Exhibits P3 and P4 without any objection from the appellants. It is therefore not surprising that the learned trial judge held at page 54 of the record of proceedings that:
“PW1 was not cross-examined on the identity of the land in dispute. The evidence of witnesses for the plaintiffs on the identity of the land in dispute was in line with their pleadings. The evidence of PW7 and PW8 were not discredited by cross-examination. Exhibits P3 and P4 were tendered by the plaintiffs without any objection as the survey plan and layout plan of the land…… I am satisfied that the plaintiffs have proved the identity of the land by their pleadings and oral evidence.”
It is my view and I agree with counsel for the respondent that the trial court was right in arriving at this conclusion. The appellants, with all due respect did not traverse the averments in the statement of claim in a way that would have made it possible for them to present evidence that would enable the trial court to place the evidence led by each side on an imaginary scale in order to determine where the balance tilted. To make the point clearer, instead of challenging the facts presented by the respondents in their pleadings, the appellants tended to ignore those facts to the point of not even cross-examining on them and busied themselves making their own case as if they were the plaintiffs. For example, in their amended statement of defence, the appellants averred all through about land at Agbeja granted to their ancestor Obasesin by Chief Famuagin, the Elemo of Oba-Ile without any specific averment that the disputed land which the respondents referred to as Igoba land is not Igoba land but their Agbaje land. Notwithstanding this omission, the respondents filed a reply to the statement of defence denying that the disputed land is situate in Agbeja and also denying the boundaries of the land as averred by the appellants. Yet, the appellants did not deem it necessary to cross-examine the respondents’ witnesses on the identity of the land and its boundaries. That was why the learned trial judge made the observation that “the pleadings of the defendants described the land in dispute as being situated at Agbeja, the same land was described as Agbeja Oke by DW3. The evidence of PW2, PW7, and DW3 show that the land in dispute is at Igoba.” As far as the trial court was concerned, and rightly I believe, the appellants were talking about a different parcel of land. That also explains why the trial court did not take the appellants’ survey plan exhibit P5 into reckoning. The survey plan was in respect of land at Agbeja when the land in dispute has been confirmed even by the appellants’ witnesses to be at Igoba. Still on the survey plan, exhibit P5 and the identity of the land, I think the case of Adeyori v. Adeniran [2001] 10 NWLR (Pt. 720) 151 @ 165-166 referred to by appellants’ counsel throws more light on the issue. In the case, the court of appeal, Ibadan division held:-
“Once a plaintiff in a suit filed a plan, the issue of the identity of the land in dispute will be an issue if and only if the defendant in his statement of defence makes it one; that is if the defendant specifically disputes either the area or the size or the location or the features on the plaintiff s plan. Ezeudu v. Obiaewu [1986] 2 NWLR (Pt.21) 208. (Underlining mine)
See also Ogun v. Aikinyelu (supra) @ 385: Fatunde v. Onwoamanam [1990] 2 NWLR (Pt. 132) 322. The appellants have no reason to complain. The respondents filed survey plans, Exhibits P3 and P4. The appellants did not make an issue of the identity of the land in their statement of defence by specifically disputing the location, name or features in the respondents’ survey plans. Rather, they filed their own survey plan Exhibit P5 describing an entirely different piece of land. Issues are joined in pleadings. Where issues are not joined on a particular point, the trial judge is at liberty to accept the unchallenged evidence of the plaintiff on the point. The learned trial judge was absolutely right in holding that the respondents proved the identity of the land. The second issue is answered in the affirmative and is resolved against the appellants.
Issue no 3, whether the respondents established evidence of acts of ownership and long possession. The complaint of the appellants on this issue is that the respondents did not have exclusive right of possession in the sense that they shared allodial right of ownership with some other communities and so could not validly rely on acts of ownership and long possession in proving their title to the land. The appellants in making this argument are relying on their pleading and evidence that they also had long possession of the land through their ancestor Obasesin and his brother Atanlogun. I agree with counsel for the respondents that the submission is extraneous to the pleadings and evidence led by the respondents in support of their claim as shown in the record of proceedings. And, at any rate the finding of the trial judge which I have no reason to disagree with is that the appellants in presenting their case talked of land at Agbeja which is a different parcel of land from the respondents’ land at Igoba. The respondents did not therefore share allodial rights of ownership with the appellants or any other community. It is not mandatory that the plaintiff to succeed in a land case must establish all the five methods of proving ownership to land. He may plead any number of the methods but to succeed, he must establish at least one of them and any one so established is sufficient. Uka v. Irolo (2002) 7 SCNJ 137 @ 141. It is also the law that if a plaintiff relies on traditional history in addition to acts of ownership and possession predicated on the traditional history, he cannot succeed in his claim based on evidence of acts of ownership and possession if he fails in proving his title by traditional history. The key factor here is where the acts of ownership or possession are predicated on traditional history. If for example a plaintiff hinges his root of title on grant of the disputed land to his ancestor as well as acts of ownership and possession thereafter, if the root of title by grant fails completely, then the acts of possession and ownership go to nothing. Ezukwu v. Ukachukwu [2004] 17 NWLR (Pt. 902) 227 @252 C-E. The respondents as rightly held by the trial judge succeeded in establishing their title through traditional history which alone is sufficient to entitle them to judgment. Balogun & Ors v. Akanji & Another [1988] 19 1 NSCC 180. The trial judge however went ahead to consider acts of possession because they were adequately covered by the respondents’ pleadings and evidence. See paragraphs 3, 7, 9, 11 and 15-17 of the further amended statement of claim. Evidence was adduced in respect of these paragraphs. The respondents’ witnesses testified that after their ancestor Ogunyankin settled on the land, they took effective possession, built huts and houses, farmed on the land and made grants to tenants. They also testified about how their Obaloguns generally administered the land. Of recent, they surveyed and created layouts in the land in 1982 and 1987 without any interference from anyone until the year 2003 when the appellants trespassed on the land. The respondents’ grantees PW2 – PW6 from different parts of Nigeria gave evidence of the grants and how they have been on the land since the grants without any interference from anybody. The respondents unequivocally proved acts of ownership and possession on the disputed land over a very long period of time. The acts of possession and ownership pleaded by the appellants were in respect of land at Agbaje. The only indication that the appellants may be referring to the land in dispute was in their paragraph 12 of the amended statement of defence where they averred that the plaintiffs encroached on the Obasesin Atanlogun family land when they were mapping out their phase 2 layout. But Dw1, the 1st defendant and prime witness of the appellants in his evidence made no reference whatever to this averment.
Throughout he testified about their 500 acre land given to their ancestor Obasesin by the Elemo Famuagun of Oba-Ile. He mentioned their grantees on the land as Elder Sasere, Gaf Nigeria Ltd and Elder Julius. None of these grantees was called to testify on behalf of the appellants which prompted the learned trial judge to observe:
“I am not surprised that none of the grantees was invited as a witness because the defendants averred in their pleadings that their land is at Agbaje.
I agree with the submission of plaintiffs’ counsel that if the grantees had been called they are likely to give evidence that will not favour the (sic) plaintiffs”.
The only real act of possession ascribable to the appellants was their attempt to survey the land and carve out a layout in 2003 which act the respondents challenged and reported to the police. It is the same act that is the subject of the suit which gave rise to this appeal. The appellants by their evidence did not show any act of possession in respect of the respondents’ Igoba land. Their entire defence is in respect of their land at Agbeja. Even their surveyor testifying as DW5 during examination-in-chief stated that the place he surveyed as he was told by the defendant is Agbeja along Igoba Road. DW1 during cross-examination agreed that Agbeja land is different from the subject matter in dispute when he said at page 31 of the record of proceedings that:
“Agbeja land has never been under the control of Obalogun. Igoba community has their own land.”
The summary is that the appellants did not both in their pleadings and evidence state that they exercised acts of ownership and possession on the disputed land as shown in the respondents’ claim. I agree with learned Counsel for the respondents that findings of a court are said to be perverse when they are not based or supported by the evidence on record and that there is no finding of fact by the trial judge that is merely speculative and not based on evidence on record. There has consequently been no miscarriage of justice as alleged by the appellants. I find no substance in the complaint on the third issue for determination which is resolved in favour of the respondents.
In the final analysis, this appeal fails and it is accordingly dismissed. The judgment of the court below is hereby affirmed. The appellants shall pay to the respondents the costs of this appeal assessed and fixed at N30, 000.00.
NWALI SYLVESTER NGWUTA, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother Iyizoba JCA, and I agree with the reasoning and the conclusions reached. The three issues are properly resolved against the appellant, consequently I also dismiss the appeal and abide by order for costs.
MOORE A. A. ADUMEIN, J.C.A.: I agree.
Appearances
VICTOR EKIM ESQ. WITH A.M. KAYODE AND A. D. ABDULKADIRIFor Appellant
AND
L. K. DARE ESQFor Respondent
