IDRIS OLOYEDE ASANIKE v. MRS. OJUOLAPE AKINLEYE & ANOR (2013)

IDRIS OLOYEDE ASANIKE v. MRS. OJUOLAPE AKINLEYE & ANOR

(2013)LCN/6607(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of December, 2013

CA/I/127/2009

RATIO

 WHETHER AN APPELLATE COURT CAN RE-EVALUTE EVIDENCE

It is the law that where a trial court failed in its duty to properly consider the evidence before it and the failure had led to the drawing of wrongful conclusions from the accepted evidence as in this case, the Appeal court has been, held perfectly justified in re-evaluating and reconsidering the whole evidence in order to arrive at a just decision. See, WOLUCHEM VS. GUDI (1981) 5 S.C. 291 at 294; H. M. S. LTD VS. FIRST BANK (1991) 1 NWLR (PT.167) 290 AT 313; UKOJA VS. ISHOLA (1982) 7 S.C. 314 AT 349; AGBONIJE VS. AIWERIOBA (1988) 1 N.W.L.R. (PT.70) 325; UMAR VS. BAYERO UNIVERSITY (1988) 4 N.W.L.R. (Pt.86) 85 S.C.; ATTORNEY GENERAL OYO STATE VS. FAIRLAKES HOTELS LTD. (NO.2) (1989) 5 NWLR (PT.121) 255 AND GUINESS VS. UDEANI (2000) 18 W.R.N. 27 AT 45; (2000) 14 N.W.L.R. (PT.687) 367 AT 390. Per CHIDI NWAOMA UWA, J.C.A.

WHETHER A COUNTERCLAIM IS AN INDEPENDENT ACTION

A counter claim for all intents and purposes is an independent action, so where a defendant counterclaims for title to land, he has no less burden than the Plaintiff to prove that title. In the present case where both parties claim title to the land in dispute, they have the burden to establish their entitlement to the declaration sought. See: NIGERIAN PORTS AUTHORITY VS. C.G.F.C. (1974) 125. C. 81; BIODE PHARMACEUTICAL INDUSTRIES LTD. VS. ADSELL (NIG.) LTD (1986) 5 NWLR (PT.46) 1070; CHIEF OGBANNA VS. A.G. IMO STATE and OTHERS (1992) 1 NWLR (PT.220) 647 and OYEGBOLA VS. ESSO W.A. (1966) 4 N.S.C.C. Per CHIDI NWAOMA UWA, J.C.A.

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

IDRIS OLOYEDE ASANIKE Appellant(s)

AND

1. MRS. OJUOLAPE AKINLEYE
2. MR. ADEBOWALE AKANNI Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Oyo State High Court, presided over by S. Olu Akinola, J, sitting at Ibadan. The Appellant was the Plaintiff before the trial court while the Respondents were the defendants in an action instituted for trespass on a piece of land at Bioku village Akanran Ibadan and for injunction, while the respondents counter claimed for declaration, damages for trespass and injunction. The Appellant as plaintiff in the lower court claimed as follows:

“Whereof the Plaintiff claims against the defendants as follows:-
(a) N5,000.00 General damages for trespass committed on the land of the plaintiff at Emu village Akanran Road Ibadan more particularly shown and marked red in Plan No.LSAT/Y191 (Registered Surveyor).

(b) Perpetual injunction restraining the defendants their agents, servants or privies or any person claiming through them from committing further acts of trespass on the said land.

While the respondents counter claimed as follows:

“Whereof the 2nd defendant counter-claims against the Plaintiff as follows:-
(a) Declaration that the 2nd defendant is the person entitled to the grant of Statutory Right of Occupancy to all that piece and parcel of land lying and being at Bioku village Idi Osan, Moga Area, Akanran Road. Ona Ara Local Government Area, Ibadan shown and demarcated on plan No.AOO/1992 OY/117 dated 10th November, 1992 drawn by A. O. Oyegbola, Registered Surveyor of Ibadan, measuring 2436.604 square metres or thereabout.

(b) N1,000.00 (One thousand Naira) general damages for trespass committed on the said land in April, 1995.

(c) Perpetual injunction restraining the plaintiff by himself his servants, agents and privies from committing any further trespass on the land in dispute.”

On the part of the respondents, it was contended that the appellant who said he derived his title from Gbadamosi Ajani, who bought his land from Amusa Akofe did not say how Amusa Akofe got his title to the land in dispute as well as the vast land claimed by the appellant.

The respondents claimed that the land in dispute was originally part of the landed property Oyagere settled upon under native law and custom, see paragraphs 5-13 of the amended statement of defence and counter claim, pages 58 – 60 of the records. It was contended by the respondents that it was from Busari Oladepo Oyesiji that Akofe derived his title and that the portion of land now in dispute was not part of the land sold to Akofe, based on which the trial court dismissed the appellant’s case and granted the counter-claims of the respondents.

At the close of trial the learned trial judge dismissed the case of the appellant and granted the counter claims of the respondents. Dissatisfied with the judgment, the appellant appealed to this court. From his seven (7) grounds of appeal three (3) issues were distilled for determination by this court. They are:
1. “Whether Exhibit ‘2’ Olorunsogo Ibadan Grade ‘C’ Customary Court Judgment in Suit No.154/91 between GBADAMOSI AJANI VS. OLADEPO YUSUF on the land in dispute constitute an estoppel in this case and if so.

2. Whether the Appellant has successfully traced his title to the (sic) declared owner of the land in dispute as to be entitled to judgment.

3. Whether in view of the pleadings of parties and evidence in this case, the 2nd Defendant/Respondent could be said to have proved his entitlement to the land in dispute/ his counter claim”.

On their part the Respondents formulated two (2) issues for determination by this court. They are as follows:

1. “Whether the learned trial judge was justified in holding that Appellant did not establish his title to the land in dispute.
Grounds 1, 2 and 3.

2. Whether the learned trial judge was justified in granting the counter-claims of the 2nd respondent.
Grounds 4, 5, 6 and 7.”

In arguing the appeal, the learned counsel to the Appellant Prince Bioye Oloyede Asanike Esq. adopted and relied on his brief dated 19/5/2009 filed on 20/5/2009. In urging us to allow the appeal and reverse the judgment of the lower court he submitted that from the appellant’s case as plaintiff before the trial court the land in dispute originally belonged to Alhaji Gbadamosi Ajani who bought the land in dispute with other vast areas of land from Amusa Akofe. On the death of Gbadamosi Ajani that his children sold three plots of the vast area of land belonging to Gbadamosi Ajani to the Plaintiff. It was the contention of the learned counsel that one Oladepo Yusuf trespassed onto the entire land while Gbadamosi Ajani was alive which led to the case at the Grade ‘C’ Customary Court Olorunsogo Ibadan in Suit No. 154/91. The sale to the Plaintiff was said to be under customary law before he was put in possession while Busari Oladepo Oyesiji sold the Iand to Amusa Akofe.

The learned counsel referred to the evidence of PW2 (Popoola Rasidat Bamidele) in the trial court through whom the judgment of the Customary Court, Exhibit ‘2’ was tendered. Also the PW3 (Gafari Gbadamosi) a son of Gbadamosi Ajani who in his evidence described his father’s land as being at Aba Emu, nine plots in total, his father sold six plots while the family sold three plots to Alhaji Kareem Oloyede Asanike.

Similarly, the PW5, one Sule Gbadamosi Asanike also confirmed that Alhaji Kareem Oloyede Asanike bought three plots of land from members of the family of Gbadamosi Ajani who also handed over Exhibit ‘2’ to the buyer. It was argued that the contents of the judgment, Exhibit ‘2’ were not challenged.

The evidence of the DW3 (Busari Otadepo) was also referred to, to the effect that he sold an acre of his family land to Amusa Akofe and gave evidence in the Customary Court to this effect.

It was argued that the trial court did not attach any importance to Exhibit ‘2’ for the reason that it had no plan attached to it to determine the identity and extent of the land sold to late Gbadamosi Ajani.

On the appellant’s issue two, it was the contention of the learned counsel that from Exhibit ‘2’, the land in dispute was sold by Amusa Akofe to Gbadamosi Ajani. Also referred to was the evidence of the PW3 (Gafari Gbadamosi) the son of the declared owner who gave evidence to the effect that his father Gbadamosi Ajani had sold six out of his nine plots of land at Aba Emu while he and other members of the family sold the other three plots to Late Alhaji Kareem Oloyede Asanike. These three plots had been litigated upon against Oladepo Yusuf in his lifetime in which his father got judgment, as contained in Exhibit ‘2’. It was submitted that the Appellant traced his title to Late Gbadamosi Ajani the acknowledged owner of the land in dispute vide Exhibit ‘2’.

On his issue three, the trial judge’s rejection of the evidence of the PW5 as inadmissible as not having been pleaded was faulted. It was argued that the evidence was pleaded in paragraphs 4, 5 and 6 of the statement of claim also in the reply to the statement of Defence and counter claim filed on 22/12/95 at page 26A of the record, particularly paragraphs 3 and 4.

It was submitted that the trial court ought not to have considered the case of the 2nd. Respondent and concluded that he has traced his title to Oyagere who settled on the land. Reference was made to the amended Statement of Defence and Counterclaim of the Respondent at page 58 and the pleading of the 2nd Respondent at paragraphs 5, 6, 7 and B where the Oyagere family’s genealogy at paragraphs 9 and 10 showed that Busari Oladepo Oyeseji secretly sold family land contrary to the contents of paragraphs 11 and 12 which made averments as to payment, issuance of receipts and agreement.

It was also submitted that the 2nd respondent at Page 81 of the records gave evidence that the land in dispute was sold to him under Customary law. where he paid in the presence of the DW3, a sale agreement was executed which is Exhibit’4′, which was relied on by the 2nd respondent to claim title, and thereafter had a survey plan made by his surveyor, Exhibit ‘5’. It was concluded that the trial court having abandoned Exhibit’4′ and expunged Exhibit’5′, ought not to have given title to the 2nd Respondent.

In his response, the learned counsel to the respondents J. O. A. Ajakaiye Esq. adopted and relied upon his brief of argument dated and filed on 19/6/2009 in urging us to dismiss the appeal. In his first issue, it was submitted that the appellant has alleged that title is in issue by the nature of the claim, see, OLOKUNDE VS. ADEYOJU (2000) 79 LRCN 2297 at 2314, while the respondents are of the view that what is in issue is which of the parties has a better right to possession or occupation of the piece or parcel of land in dispute. In this case it was the contention of the respondents’ learned counsel that the onus is on the appellant. It was the contention of the learned counsel that the appellant did not establish the title of Akofe to the land in dispute and that Exhibit ‘2’ heavily relied upon by the appellant is of no consequence to the land in dispute. Reference was made to the evidence of the DW3 to the effect that the land in dispute was not part of the land sold to Akofe. It was argued that Exhibit ‘2’ could not be used as evidence of title and could not be used as estoppel, see, OKE VS. ATOLOYE (1986) SC 422 at 447-8. It was submitted that the trial court was justified in dismissing the appeal.

On their second issue, the learned counsel to the respondents acknowledged the fact that the onus is on a counter claimant to show a better title to succeed against the Plaintiff, see, NWOSU VS. OTUNOLA (1974) 4 SC 21 at 29/30; AMAKOR VS. OBIEFUNA (1974) 3 SC 67 and ONOBRUCHERE VS. ESE GINE (1986) 2 SC 385 at 394, 402. In this case that the respondents needed to prove ownership of the land in dispute which they claimed to have done through traditional evidence and pleadings to the effect that the land originally was Oyagere family property through whom they traced the root of title of their vendors. It was submitted that the respondents traced their root of title by traditional evidence as well as acts of ownership, Page 81-82, which evidence was said not to have been challenged, while it was contended that the Appellant did not establish the title of Akofe, pleaded as the original owner of the land in dispute. It was also argued that the Appellant has not been able to establish what land was sold by Busari Oladepo to Akofe.

The respondents made out that the land the appellant said belonged to Akofe was established to be part of Oyagere family land by the respondent but that the Appellant did not trace his title to Oyagere family.

It was submitted that DW2, DW3 and DW4 identified and established the land sold to the respondents. It was submitted that there is no disagreement on the identity of the land in dispute as shown in Exhibits ‘1’ and ‘3’. Further, that the case of the respondents is more probable than that of the appellant. Finally, that the trial court was right to have granted the counter claim of the respondents.

I have examined the issues formulated by both parties and identify the following issues for the determination of this appeal. They are:
(1) Was the trial court right in holding that the appellant did not establish his title to the land in dispute?

(2) Was the trial court justified in granting the 2nd respondent’s counter claims?

From the claims of the parties, title is in issue. The judgment of the Grade ‘C’ Customary Court Olorunda, Olorunsogo which was tendered as Exhibit ‘2’ through the PW2 was heavily relied upon by the Appellant in proof of his case. The DW3, Busari Oladepo Yusuf was the defendant while Alhaji Gbadamosi Ajani was the Plaintiff who got judgment. The appellant’s title to the land in dispute as claimed was derived from the Plaintiff in Exhibit ‘2’, Alhaji Gbadamosi Ajani. The appellant complained that the trial court did not consider the effect of Exhibit ‘2’ in the present case. The appellant as plaintiff in support of his pleadings called the PW1, Wahab Titilayo Adeniji a licensed Surveyor who tendered the dispute plan as Exhibit ‘1’.

The DW3 at pages 78-80 of the printed records agreed that the Appellant’s vendor Alhaji Gbadamosi Ajani sued him before the Customary Court in respect of the land in dispute. The Customary Court found that the DW3, Oladepo Yusuf (then defendant) had sold the land to Amusa Akofe who sold to the then plaintiff Alhaji Gbadamosi Ajani, who sold to the Appellant’s father, the Plaintiff at the trial court. In Exhibit ‘2’ the Customary Court found as follows:

“FINDINGS:- Upon the evidence above adduced (sic) by the defendant’s witness Mr. Amusa Afolabi the court found the defendant guilty of trespass once he has sold the land to one Akofe and Akofe has sold the land to the Plaintiff. At present the plaintiff is bonafide owner of the land”.

This above finding is a subsisting judgment or decision of a court in Suit No.154/91 of 9th May, 1991. At page 19 of the printed records, in the Plaintiff’s amended statement of claim in paragraphs 4, 5, 6, 7 and 11 it was pleaded as follows:-
(4) “The Plaintiff states that the land in dispute originally belonged to Alhaji Gbadamosi Ajani who also bought this land with other vast area of land from Mr. Amusa Akofe.
(5) The Plaintiff further states that on the death of Mr. Gbadamosi Ajani his children sold 3 plots of the vast area of land belonging to Mr. Gbadamosi Ajani to the Plaintiff.
(6) The Plaintiff further states that while Mr. Gbadamosi Ajani was alive one Oladepo Yusuf trespassed on the entire land leading to litigation at the Grade ‘C’ Customary Court Ona-Ara in Suit No.154/91.
(7) The Plaintiff further states that the defendants are not one of the children of Late Alhaji Gbadamosi nor a relation and are in no way entitled to the Estate of Late Alhaji Gbadamosi Ajani.
……………………………………………………………….
(11) The Plaintiff hereby pleads all letters, correspondences, Customary judgments, Signboard or documents that may be relevant to this case and will be relied upon at the trial of this case.”

Similarly, in paragraphs 3 and 4 of the Plaintiff’s reply to the statement and defence and defence to the counter claim, at page 26A of the printed records, the Plaintiff pleaded thus:
3. “The Plaintiff further states that the land in dispute was sold to the Plaintiff under the Customary Law and he was put in possession.
4. The Plaintiff further avers that Mr. Busari Oladepo Oyesiji who sold the land in dispute to Mr. Amusa Akofe had earlier instituted an action at the Ona Ara Grade ‘C’ Customary Court with a view to getting back part of the land from Mr. Akofe but failed. The defendant further pleaded Suit No. 154/91 of the Ona Ara Grade ‘C’ Customary Court and shall rely on same at the hearing of this Suit”.

From the above pleadings, the Customary Court judgment was pleaded as well as a dispute plan Exhibit ‘1’, showing the land in dispute, but the trial court held that there was no plan attached to Exhibit ‘2’, therefore that one could not know for certain the “identity or quantity” of the land that was sold to late Gbadamosi Ajani through Exhibit ‘2’.

The evidence of DW3 Busari Oladepo Yusuf is worthy of note at this juncture, under cross examination he testified thus:

“I am Busari Oladepo Yusuf. I know Amusa Afolabi and Gbadamosi Ajani, Gbadamosi Ajani took me to Customary Court in respect of the land in dispute.
……………………………………………………………….
……………………………………………………………….
The customary court restrained me from going on Gbadamosi Ajani’s Land.
…………………………………………………………………
…………………………………………………………………
I never filed an appeal on the customary court’s decision.
I never told other members of my family about the case at the customary court.”

The PW3 also acknowledged the fact that his late father litigated over the three plots of land he sold to late Alhaji Kareem Oloyede Asanike against Oladepo Yusuf in May, 1991 in which his father had victory, the judgment is Exhibit ‘2’.

The evidence of the PW3 and PW5 confirmed the sale of the land in dispute to the late father of the appellant, Alhaji Kareem Oloyede Asanike and the contents of Exhibit’2′ which both testified was given to the buyer.

I agree with the submissions of the learned counsel to the appellant that the respondents in their pleadings did not specifically offer an explanation or any reaction to Exhibit ‘2’. Paragraph 3 of the respondents’ statement of defence and counter claim is the respondents’ only reaction to Exhibit ‘2’, where it was pleaded as follows:
5. “The defendants deny paragraphs 1, 3, 4, 5, 6, 8, 9, 10, 11 and 12 of the amended statement of claim.”

The above pleading was the respondents’ answer to the appellant’s paragraphs 4, 5, 6, 8 and 11 which touch on Exhibit ‘2’. It was not specifically traversed or countered in their pleadings. On the other hand, the DW3 agreed under cross examination that he had sold an acre of his family land to Amusa Akofe. It is noteworthy that the appellant’s case is that Amusa Akofe sold the land in dispute to Alhaji Gbadamosi Ajani who sold to the appellant’s predecessor.

From the evidence of the DW3 under cross examination earlier reproduced in this judgment the land in dispute is known to both parties, there is therefore no doubt as to its identity. On the other hand Exhibit ‘1’, the dispute plan was tendered through the PW1 which was not challenged by the respondents, it was also not discredited. Similarly, the evidence of the PW3 is to the effect that they sold three of their plots to the late Alhaji Kareem Oloyede Asanike over which he litigated against Oladepo Yusuf in May, 1991, the judgment is Exhibit ‘2’, given to the late Asanike, the appellant’s predecessor. In this case the issue of the identity of the land in dispute does not arise since the land in dispute is ascertainable.
In the case of CHIEF Y. ABIODUN VS. CHIEF D. FASANYA (1974) 1 ALL N.L.R. (PT.11) 254 at 267 – 268, AT P.257, His Lordship Aniagolu JSC explained it thus:
“It is not always that a plan is necessary in a land or that the absence of a plan is fatal to the plaintiff’s case see ALHAJI ETIKO VS. AROYEWUN (1959) 4 F.S.C. 129, 1599 S.C.N.L. 350, where there was ample other evidence identifying the land claimed with what the respondent bought.”
Similarly, in AJIDE ARABA vs. OGUNBIYI ASANLU (1980) 5 – 7 S.C. 78 at 79, the Apex Court held thus:
”It may be pointed out that although a licensed surveyor’s plan is the best, if available, yet the absence of it need not be fatal to the claim if proper description of the land is available in the record.”
In this case the land in dispute is known to the parties, a survey plan to have been attached to the judgment of the customary court, Exhibit ‘2’ is not mandatory. See: also ATOLAGBE VS. SHORUN (1985) 1 N.W.L.R. (PT.2) PAGE 360 S.C. The fact that there was no plan attached to Exhibit ‘2’ cannot operate to defeat his claim. The learned trial judge was therefore wrong to have held that the plaintiff failed to prove his case and went ahead to fault the non-attachment of the plan. The DW3 did not allege that the land now in dispute is a different one from the one he litigated upon with Alhaji Gbadamosi Ajani from whom the appellant’s father derived his title through purchase. Witnesses on both sides, PW1, PW3, DW3 and DW4 identified the land in dispute as being at Bioku area, on Akanran Road, Ibadan. The land in dispute was sufficiently identified by the parties.

There was no need to attach a plan to Exhibit ‘2’ to show the area and the extent of land sold by Oladepo to Akofe contrary to the argument of the learned counsel to the respondents that the land in dispute is different from the land Busari Oladepo sold to Akofe, which Akofe sold to Gbadamosi Ajani, who sold to the appellant’s father.

In my humble view, Busari Oladepo Oyesiji (Yusuf) sold the land in dispute to Amusa Akofe who had good title and sold to Alhaji Gbadamosi Ajani. It is this same land that Busari Oladepo Yusuf litigated upon with Gbadamosi Ajani in the Grade ‘C’ Customary Court in his attempt to regain the land earlier sold to Akofe but, failed.

It was argued by the learned counsel to the respondents that the appellant only traced his title to Alhaji Gbadamosi Ajani and Akofe in his pleadings but failed to do so in evidence.

In Exhibit ‘2’ tendered by the PW2, the Plaintiff therein gave evidence to the effect that Amusa Akofe bought the land earlier from Oladepo Yusuf while Alhaji Gbadamosi Ajani bought from Amusa Akofe. It cannot therefore be said that the appellant did not trace his title to Akofe but only traced his title to Gbadamosi Ajani. In Exhibit ‘2’ which the appellant relied upon to prove his title to the land in dispute, the Plaintiff therein through whom he claimed traced his title from Oladepo Yusuf to Amusa Akofe who sold to him and he sold to the Appellant’s father. Akofe’s title was therefore not in dispute. Exhibit ‘2’ did not transfer the land in dispute to the DW3 for resale as made out by the learned counsel to the respondents.

The evidence of the PW5 made it clear that good title was transferred of the land in dispute to the Plaintiff under native law and custom. In my humble view the learned trial judge was wrong to have dismissed the appellant’s case as plaintiff. The appellant having proved his title to the land in dispute was entitled to judgment. I resolve the first issue in favour of the appellant who has traced his title to late Gbadamosi Ajani, the acknowledged owner of the land in dispute vide, Exhibit ‘2’.

The second issue is as to whether the learned trial judge was justified in holding that the 2nd Respondent proved his entitlement to the land in dispute in the counter claim, in other words, the counter claim which granted.

A counter claim for all intents and purposes is an independent action, so where a defendant counter-claims for title to land, he has no less burden than the Plaintiff to prove that title. In the present case where both parties claim title to the land in dispute, they have the burden to establish their entitlement to the declaration sought. See: NIGERIAN PORTS AUTHORITY VS. C.G.F.C. (1974) 125. C. 81; BIODE PHARMACEUTICAL INDUSTRIES LTD. VS. ADSELL (NIG.) LTD (1986) 5 NWLR (PT.46) 1070; CHIEF OGBANNA VS. A.G. IMO STATE and OTHERS (1992) 1 NWLR (PT.220) 647 and OYEGBOLA VS. ESSO W.A. (1966) 4 N.S.C.C. 183. Considering the 2nd respondent’s counter-claim against the appellant’s claim, alongside the pleadings and the evidence adduced by the Plaintiff’s witnesses in the trial court, could it be said that the 2nd respondent proved his entitlement to the land in dispute and/or his counter claim?

In paragraphs 5, 6, 7 and 8 of the defendants’ amended statement of defence and counter claim, pages 58-59 of the printed records, the Oyagere family genealogy was pleaded and in paragraphs 9 and 10 it was averred that Busari Oladepo Oyesiji secretly sold family land (belonging to Oyagere family) without the knowledge and consent of the members of the family (namely Olayiwola, Abidoye and Oladimeji). It was pleaded that thereafter it was resolved that the three named above family members, jointly and severally agreed and sold under native law and custom the remaining unsold land of Oyagere family land to the 2nd Respondent which was evidenced in writing, in January, 1978 under the provisions of the Property and Conveyance Laws of Oyo State, 1978, witnessed by Busari Oladepo Oyasiji and Amusa Akofe from whom the Plaintiff traced their title to the land in dispute, paragraphs 11 and 12 of the amended statement of defence and counter claim

The 2nd respondents’ claim was purchase under native law and custom (Customary Law) I agree with the arguments of the learned counsel to the appellant that from the pleadings in paragraph 12, with the issuance of the receipt and written agreement it has removed the land purchase from purchase under native law and custom. In support of his pleadings in paragraphs 11 and 12 above as to the nature of transaction, at page 81-82 of the printed records the 2nd respondent as DW4 testified as follows:

“I know the land in dispute. It is at Bioku Area, Akanran Road, Ibadan.

I know the family who owned the land in dispute originally. Oyagere was the first to settle on the land.

Abidoye, Olayiwola and Oladimeji sold land to me. They sold to me on traditional basis. The three of them took me to the land they sold to me and showed me its four corners. I paid for the land in the presence of the DW3.

We executed a land sale Agreement for the land I bought. This is the Agreement we made on the land I bought.

Mr. Ajakaiye: – I seek to tender it.
Prince Asanike: – No objection
Court: – Land sale Agreement dated 9/1/1978 between three vendors and Adebowale Akanni is exhibit four.
D.W.4. continues:-
I made a fence round the land I bought. I made a survey plan of my land. This is my survey plan.
…….
Court::- …
In the light of these answers Plan Number AOO/1992 OY/117 dated 10/11/92 and drawn by A. O. Oyagbola, a Registered Surveyor is admissible. It is admitted as exhibit five.”

Exhibit four is the document the 2nd respondent relied upon to claim title to the land in dispute. In this respect he testified as follows at page 84 of the printed records:
“Apart from me and the lawyer who made exhibit four and signed it, all other parties thumb-printed exhibit four.

Nobody signed the illiterate jurat on exhibit four. Amusa Akofe is dead; Exhibit four is the document I rely on as title to my land.

Immediately I was given Exhibit four by the vendors I commissioned my Surveyor to make a survey plan of the land.” (Underlining mine for emphasis).

On the part of the trial court, the learned trial judge at page 124 of the printed records, in respect of Exhibit four through which the 2nd respondent claimed and Exhibit’5′ the survey plan, which were addressed in the Plaintiff’s second issue in the trial court, that is: whether in view of the evidence before the trial court, Exhibits ‘4’ and ‘5’ were admissible in evidence? The court (at pages 124-125 of the printed records) held thus:
“Prince Asanike submitted that Exhibit ‘4’ is a Registrable Instrument but which had not been registered; that its admission as an exhibit offends Section 16 of the Lands Instruments Registration Law Cap. 56 Laws of Oyo State 2000.

This court agrees with Prince Asanike that Exhibit ‘4’ should not have been admitted as an exhibit in the first place, hence its abandonment by this court in this judgment. This court has failed to act upon it.

Prince Asanike also called upon this court to expunge Exhibit five from record on the ground that the ground that the D.W.4. Said it was prepared by one Mr. Lawy, whereas on the face of the document it is very glaring that it was prepared by Mr. A. O. Oyegbola.
……..
The said Exhibit five has not been acted upon by this court in this judgment as the 2nd Defendant has established his title to the land in dispute under native law and custom. Albeit, Exhibit five, is hereby directed to be expunged from record of the proceedings in this case.” (Underlined mine for emphasis)

From the above, the learned trial judge agreed that exhibit ‘4’ should not have been admitted as an exhibit hence, it was abandoned and not acted upon by the learned trial judge.

In the same vein, the learned trial judge agreed that Exhibit ‘5’ was prepared by Mr. Oyegbola while the D.W.4. testified that it was prepared by one Mr. Lawy as shown on the face of the exhibit. For this reason the learned trial judge expunged Exhibit ‘5’ from the entire records of proceedings, and made it clear that the court did not act upon the expunged exhibit.

The court abandoned Exhibit ‘4’ and did not act upon it, as well as expunging Exhibit ‘5’. An expunged document is as good as not been there at all, it is non-existent. The court, rightly did not act upon Exhibit ‘4’ and the expunged Exhibit ‘5’. Exhibit ‘4’ was clearly shown to be the document the 2nd respondent relied upon in proof of his title to the land in dispute while Exhibit ‘5’ which was expunged is the survey plan of the land in dispute claimed to have been made by the 2nd respondent on purchase of the land.

Exhibits ‘4’ and ‘5’ were not utilized by the learned trial judge. Without Exhibit ‘4’ relied upon by the 2nd respondent as proof of title could it be rightly said that the 2nd respondent proved title to the land in dispute to have been entitled to the declaration sought? I think not.

It is the law that a defendant who counter claims must show a better title to succeed against the Plaintiff, See, ONOBUCHERE VS. ESEGINE (SUPRA). The learned counsel to the respondents in his submissions agreed that a counter claimant claiming ownership of the land in dispute also has the onus of proof of the claimed title. In the present case the respondents traced their root of title to Oyagere family property and traced their root of title of their vendors to Oyagere, thus relying on traditional evidence which has been faulted earlier in this judgment.

On the acts of ownership over the property, fencing round the land, block making on the land, Christian worship and farming, I would say are acts of trespass by the respondents who have not been able to establish their title to the land in dispute.

The appellant was able to establish the title of Akofe and Alhaji Gbadamosi Ajani through whom he claimed under native law and custom.

The respondents while relying on Exhibits ‘1’ and ‘3’ had submitted at page 6 paragraph 5.04 of the respondent’s brief that “there is no disagreement on the identity of the land in dispute as shown on Exhibits ‘1’ and ‘3’”. The above shows that the identity of the land in dispute is not in issue, therefore a plan would not be necessary to show the identity and extent of the disputed land, contrary to the holding of the learned trial judge that there was no plan to back up Exhibit ‘2’, to show the portion and extent of the land claimed by the appellant.

At page 125 of the printed records, the trial court held as follows:
“The counter claims of the Defendant/counter claimant succeed as he has successfully established his title to the land in dispute under native law and custom. He has also successfully established that the Plaintiff in 1995 trespassed on his land and that the trespass still continues.”

Following the above holding the learned trial judge declared the 2nd respondent (as defendant) as the person entitled to the grant of Statutory Right of Occupancy of the land in dispute. In my humble view there was no basis for the learned trial judge to have held thus. There was nothing to prove the alleged sale, by the three members of the Oyagere family, namely Olayiwola, Abidoye and Oladimeji. The counter claim was not proved and ought not to have been granted. The second issue is resolved against the respondents.

The learned trial judge wrongly evaluated the evidence before him and arrived at a wrong conclusion. For this reason this court is permitted to re-appraise the evidence before the court, which I have done.

The order dismissing the plaintiff’s case is hereby set aside.

The appellant is entitled to and is granted his claims having proved his title to the land in dispute, in terms of paragraphs 12(a) and (b) of his amended statement of claim.

The 2nd respondent’s counter claim against the appellant fails as same was not proved. The orders of the trial court granting the reliefs sought in paragraph 20 (a), (b) and (c) of the counter claim are hereby set aside. The counter claim fails and is hereby dismissed.

In the final analysis, the appeal has merit and is hereby allowed. The orders dismissing the Plaintiff’s case and granting the counter claim are hereby set aside.

I award costs of N50,000.00 (Fifty thousand Naira) against the respondents.

HARUNA SIMON TSAMMANI, J.C.A.: I was afforded the privilege of reading in advance the judgment that has just been delivered by my learned brother, C. N. Uwa, JCA. I agree that the appeal has merit and is accordingly allowed. I abide by the order on costs.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment of my Lord Chidi Nwaoma Uwa J.C.A. I agree with the conclusion reached and abide by the order as to costs.

Appearances

Prince Bioye Oloyede Asanike Esq.For Appellant

AND

J. O. A. Ajakaiye Esq.For Respondent