IFE CO-OPERATIVE SALE SOCIETY LIMITED v. OMIYEFA LAKORO & ORS
(2018)LCN/12245(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/AK/102/2016
RATIO
COURT AND PROCEDURE: REPRESENTATIVE ACTION
“In that capacity, they also sued as representatives of the family, having so indicated. It cannot but be for the members of the family. In the case of Ojo & Ors V. Akinyemi (2013) LPELR 22139 this Court held thus:- ‘Where a juristic person sues in a representative capacity, he being a party to the case can sustain the suit. By suing in a representative capacity, the person suing has clearly joined the person on behalf of whom he is suing, as a co- plaintiff, to the action..’ in Sharon Paint & Chemical Co. V. Ezenwaka (2001) FWLR (Pt. 43) – 290. Olagunju, JCA said judgment could have been given to the Plaintiffs at the trial Court in their personal capacity.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
DEFENCE: THE DEFENCE OF LIMITATION OF ACTION
“Furthermore, it is also the law that a defence of limitation of action is a special Defence, which ought to be specially pleaded and raised with all the facts upon which it is founded. Alade V. Aborisade (1960) 5 FSC 167; NBN V. AT ENG. Co. Ltd (2006) 16 NWLR (Pt. 1005) 210.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: WAYS TO PROVE TITLE TO LAND
“The resolution of this issue on proof of title through evidence of traditional history has been narrowed down indeed. Inspite of the much verbiage from both sides, the trite law is that there are 5 ways of proving title to land, and these are not mutually exclusive. Proof by any of the ways suffices; so long as it is in accordance with pleadings and testified to convincingly that root of title would have been proved upon one root of title alone, a declaration may be so founded. See Idundun V. Okumagba (supra).” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: TRADITIONAL HISTORY TO PROVE LAND TITLE
“Traditional history is, after all, a version of hearsay evidence in some instances. It is also obvious that the Appellant did not controvert the evidence on traditional history as pleaded and led; However, the Appellant asserted a contrary or competing title to that land and claimed a grant to it in 1916 through one Ooni of Ife, Oba Olamiluyi, and Ejio Alayo. Where competing claim to title is raised, the burden shifts to the defendant so raising, to show that his title so asserted is superior to and dislodges the prima facie’ title also asserted and established by the Plaintiff/Claimant.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
IFE CO-OPERATIVE SALE SOCIETY LIMITED Appellant(s)
AND
1. OMIYEFA LAKORO
2. CHIEF ADEJOBI LAKORO
3. IDOWU AWOFADE
4. DEPO AWOGBADE Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
The Plaintiffs in their Amended Writ of Summons instituted the action, subject of this appeal at the High Court of Justice Osun State sitting in Court No. 2 Ile Ife and claimed the following reliefs:
(a) Declaration of title to a statutory right of occupancy to all that piece or parcel of land situate, lying and being along More lle-Ife measuring 1830.530 square metres and verged yellow in Dispute Plan NO. OS/1770/2013/DISP/01 dated 3rd of April 2013 and drawn by Akinde A. Akinyemi registered Surveyor and is bounded as follows:- 1st side by Ejio family land, 2nd side by Ejio family land, 3rd side by llode Street and on the side by Moore Street.
(b) Declaration that the 1st and 2nd Defendants are customary tenants of the Plaintiffs on the said land.
(c) Declaration that the 1st and 2nd Defendants have forfeited their customary right of occupancy in that they had ceased to pay tributes to the Plaintiffs and have claimed wrongfully to be the owners of the said land by dealing with same in a manner inconsistent with the Plaintiffs claim by leasing parts of the said land without the Plaintiffs’ permission.
(d) Possession of the said land now occupied by the Defendants, their tenants, agents and privies.
SUMMARY OF THE CASE
As it is the practice, the Appellants filed the Appellant?s Brief of argument on 19/12/17 in support of its amended notice of Appeal filed on 19/12/17. Both processes were deemed filed and served on same date of 22/10/18 when the appeal was heard.
The Appellant formulated five (5) issues for the determination of the appeal to wit;
1. Whether or not the action was instituted by competent Plaintiffs before the lower Court to confer jurisdiction on the lower Court to adjudicate over the suit.
2. Whether the lower Court has jurisdiction to adjudicate over the suit in view of the provisions of Section 3 of the Limitation Law of Osun State.
3. Whether the Plaintiffs/Respondents successfully proved ownership to the land in dispute by way of traditional evidence to warrant the decision of the lower Court in their favour.
4. Whether the Plaintiffs/Respondents proved that the Defendants (particularly Defendant/Appellant) are their customary tenants on the land in dispute to entitle them to the relief of forfeiture against the Defendants).
5. Whether or not the lower Court was right to grant the Plaintiffs/Respondents claim for possession of the land in dispute.
The Respondents equally raised five (5) issues for determination to wit:
1. Whether the Respondents as Plaintiffs at the lower Court are not entitled in law to institute this action for themselves and on behalf of Lakoro family.
2. Whether in the light of the facts and circumstances of this case the claims of the Respondents before the lower Court are statute barred.
3. Whether in view of the state of pleadings and evidence before the lower Court, the Plaintiffs’ claims are caught by doctrine of laches and acquiescence.
4. Whether the Respondents as the Plaintiffs at the lower Court did not prove their entitlement to the land the subject matter of their claim.
5. Whether the lower Court was not right in granting all the reliefs sought by the Respondents.
The Issues are similar; I shall however determine the appeal on the issues as formulated by the owner of the appeal, i.e. the aggrieved, Appellant herein.
ISSUE 1
Arguing this issue, it was pointed out that it flows from Ground 1 of the Notice of Appeal; and submits that an action will be said to be properly constituted, so as to vest jurisdiction in a Court to adjudicate on it where there is a competent Plaintiff and a competent Defendant. Relies on Ataguba & Co. V. Gura Nig. Ltd. (2005) All FWLR (Pt. 265) 1219 par A – C. That only juristic, i.e. is natural or artificial persons such as body corporate may sue or be used; and where the parties are not legal persons, the action is liable to be struck out for being incompetent.
That the Plaintiffs instituted the action for themselves and on behalf of Lakoro family. Referring to pages 1 – 3 and 306 of the record of appeal for this and says the suit on behalf of ‘Lakoro family’ was incompetent as the ‘Lakoro family’ was not a legal person and that we should so hold. That this lack of legal personality has impacted/affected the jurisdiction of the Court.
Counsel refers to Quo Vadis Hotels Limited V. Commissioner of Lands (1973) LPELR 2933 SC; Obike Int’l Ltd V. Ayi Teletronics Ltd (2005) 15 NWLR (Pt. 948) 362 @ 372 par F.
That the ‘Lakoro family’ is not a juristic person that can sue and be sued and therefore cannot be represented in an action; countering this argument, the Respondent, by its issue Number one argues that the action could be maintained in the personal names of the Plaintiffs and/or in the name of their family and by so doing the jurisdiction of the Court was properly activated. Reference was made to Madukolu V. Nkemdilim (1962) 1 All NLR (Pt. 4) 587 as to the criteria for the existence of a competent Court.
That the Appellant had not shown that the conditions in Madukolus’ case had not been shown in the suit at the trial Court. It was argued that the Respondents, Omiyefa Lakoro, Chief Adejobi Lakoro, Idowu Awofade and Depo Awogbade had sued for themselves and on behalf of Lakoro family and therefore, the family had been represented by natural persons in a representative capacity and the action could be maintained.
That Respondents having traced their root of title to their progenitor, Ogudu Ajare, whose descendants now form the family known as Lakoro family. That a member of the family can maintain an action and is competent to bring an action to protect the interest of the family in respect of family property. Olowosago V. Adebanjo (1988) 9 SC 87; Coker V. Moriamo Ogutalo & Ors (1985) 2 NSCC 869; Mr. Sunday Adegbite Taiwo V. Sera Adegboro & 2 ors (2011) 5 SC (Pt. II) 179; Dr Augustine N. Mozie & Ors V. Chike Mbamalu & Ors (2006) 7 SCNJ 411; Unity Bank Plc & Anr V. Edward Bouari (2008) 2 SCNJ 116.
That a person can sue in his name in protection of family property or he may sue in a representative capacity even when he cannot carry all those he is supposed to represent. Chief Otoola Atanda V. Taiwo Akunyuun Olarewaju (1988) SC (10 – 11) 1.
That this they had to do so that they be not held to be standing by when the family right is trampled upon. Ojo & Ors V. Akinyemi (2013) LPELR 22139.
It was pointed out that the Plaintiffs/Respondents in the suit had dual capacity, one for themselves and the other, the party they represent.
RESOLUTION
There is no more dispute as to who a juristic person is and who a natural person is. The Plaintiffs/Respondents are, no doubt natural persons who may sue and be sued. They are competent to have instituted the action. However, the Lokoro family not being incorporated or established by law nor shown to be a friendly society or a body who by conduct and dealings is such that in the circumstance must be imputed with a corollary obligation to its rights and action, and to therefore be one that can sue or be sued.
However, as pleaded in the statement of claim, the natural persons there in had averred that the Lokoro family is the entity comprising the descendants of listed persons who traced their genealogy from Agudu Ajare who got the land in dispute from Oduduwa and settled there on.
It goes without saying, therefore, that the said natural persons are part of the constituent called Olokoro family. They are therefore, members of the family.
In that capacity, they also sued as representatives of the family, having so indicated. It cannot but be for the members of the family. In the case of Ojo & Ors V. Akinyemi (2013) LPELR 22139 this Court held thus:-
“Where a juristic person sues in a representative capacity, he being a party to the case can sustain the suit.
By suing in a representative capacity, the person suing has clearly joined the person on behalf of whom he is suing, as a co- plaintiff, to the action —-” in Sharon Paint & Chemical Co. V. Ezenwaka (2001) FWLR (Pt. 43) – 290. Olagunju, JCA said judgment could have been given to the Plaintiffs at the trial Court in their personal capacity.
I am fortified and satisfied that the liberal approach at allowing for representative suits may not permit a claim on behalf of a family made up of human entities to be defeated on the notion of cognomen or incorporation theory. The Respondents as Plaintiffs were entitled to sue to protect their interests and that of other members of the family, in the suit against alleged violation of the title to their land. The Appellants were not misled as to who sued them. The Issue One is resolved against the Appellant.
ISSUE TWO
The Appellant submits on this issue that the suit was at the trial Court, statute barred and the Court was without jurisdiction to adjudicate over the suit in view of the provisions of Section 3 of the Limitation Law of Osun State.
It was contended that the exception to the application of the statute of limitation to land held under customary tenure as provided in the Section 1 (2) of the Limitation Law of Western Nigeria Cap 64 of 1959 has ceased to be applicable to the instant case as the Osun State Limitation Law has been enacted.
The learned Counsel contends that there are no exceptions relating to customary titles in the Section 43 (1) (a) – (g) of the Osun State law as in the case of Lagos State and therefore Majekodunmi V. Abina (2002) All FWLR (Pt. 100) 1336 at 1362 or (2002) 1 SCNJ 160 at 120 on the Lagos State Limitation Law was not applicable to the instant case. That the phrase: ‘actions in respect of title to land or any interest in land held by customary tenure’ as provided in Section 1 (2) of the Limitation Law of Western Nigeria. Cap 64 of 1959 has been omitted in the Osun State law which exempts only thus:-
‘This law shall not apply to any matter which is subject to the jurisdiction of a Customary Court or Area Court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.’
It was also contended that the case of Ayorinde V. Sogunro (2012) All FWLR (Pt. 636) 403 relied upon at the trial was instituted in Osun State and not in Osun State and the Supreme Court per Odilli, JSC was only summarising the respondents Counsel’s final address and those cases are inapplicable. The Learned Counsel drawing from the answers in cross-examination of PW3 and PW4 submitted that the Appellants were on the land for up to 80 years before the action; and that by PW4, the Appellants paid Ishakole only 4 – 5 times and stopped payment. That it was 75 years preceding the suit.
The learned Counsel drawing from PW5’s answer in cross-examination suggests that since after writing the Appellant (1st – Defendant then) a letter through their solicitor, nothing else was done, until 2007. The learned Counsel contended that the cause of action accrued in 1956, and that since then up to 2007 when the action was instituted, was a period well beyond the limitation period, stipulated by Section 3 of the Limitation law, Cap 70 Volume 4 Laws of Osun State.
It was contended that the lower Court was wrong in holding that the issue was kept alive during the period between 1956 and 2007 and that the action was statute bared. The learned Counsel contends that where a statute lays down a procedure for doing a thing, it is that procedure that should be followed and no other. Sani Ibrahim V. INEC & ors (1999) 8 NWLR (Pt. 614) 39 at 353.
That the use of the word ‘Shall’ in the Limitation law of Osun State was a mandatory provision to be complied with. Yusuf V. State (2011) 18 NWLR (Pt. 1279) 853 relied upon. That equity aids the vigilant and that the action is foreclosed.
The learned Counsel referred to Section 43 subsection 2 of the law to contend that nothing in the law shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence or any other equitable defence.
The Learned Counsel urged in this stern words thus: ‘in the final analysis on this issue it is urged on your Lordships that the Limitation Law, being a statutory defence, has secured the Appellant in a bullet-proof case iron bunker against any legal contest by the Respondents in this matter and we urge your Lordships to so hold. We urge your Lordships to resolve this issue in favour of the Appellant’.
In response, the Respondents by their argument on this issue submits that though an issue touching on statute of limitation touches on the jurisdiction of the Court to adjudicate the matter, as though the cause of action may survive but the right of action cannot be embarked upon by any action in the Court. See Ajayi v. Military Administrator of Ondo State (1997) 5 NWLR (Pt. 504) 237 at 254.
Contends, however, that limitation law must be specifically pleaded to avail a party asserting same. NBN V. AT. Eng. Co. Ltd (2006) 16 NWLR (Pt. 1005) 210.
That it is the claim of the Plaintiff that determines jurisdiction and not the defence. Adeyemi V. Opeyori (1976) 9 – 10 SC 31 at 51 – 52. That statute of limitation and all special defences must be specifically pleaded and the facts in support set out.
That accrual of a cause of action is not computed from the statement of Defence as done by the Appellant herein, limiting it to the year 1956, when rent was demanded. That the Appellants remained tenants of the Respondents up to the filing of the action.
That the evidence of 2nd Respondent as contained on page 352 of the record which remains uncontroverted proved that the cause of action survived and was not statute barred as the relationship was on and entreaties continued between the parties.
That the view that the Suit No. HIF/52/2007 Omiyefa Lakoro & 2 Ors V. Eluyemi Oladipo & 2 Ors was statute barred was novel, as it was not so raised thereat but only raised now as an issue in this appeal. That on the authority of Sifax (Nig) Ltd. & 4 ors V. Migfo Nig. Ltd in view of the fact that the suit in HIF/57/2007 was not challenged as statute barred, the Respondents suit leading to this appeal filed 7 years after cannot be barred as it was filed less than 10 years as provided for in Section 3 of the Limitation Law Cap. 70, Laws of Osun State.
RESOLUTION
It is plain that by the limitation Law of Osun State Cap 70, action relating to title to land has not been made an exception to the application of the statute of Limitation as provided for in the Western States Limitation Law, 1959, Section 1 (2) thereof. That law has either been applied whole sale by adoption by States created from the old Western Region of Nigeria or modified or abrogated as the case may be.
The Lagos State variant applies and adopted same into its Limitation Law of Lagos State. It is therefore, correct to conclude as submitted by the Learned Counsel for the Respondent that the case decided on that law in Oyo, Ogun or even Lagos State are inapplicable to this appeal ‘ a case filed in Osun State.
This has to be so, as in Osun State, the Osun State Limitation Law clearly by its S. 2 (1) has canalised the situations and instances for in applicability of the Law to ‘matters subject to the jurisdiction of Area Courts or Customary Courts relating to marriage, family status, guardianship of children, inheritance or disposition of property on death’.
It is however plausible to contend that unless the land, subject of litigation has been shown to be subject to the jurisdiction of customary Court or area Court, the question of the invocation of this exception to the Rule of Limitation cannot be invoked. This is so, as the primary burden of proof i.e. the onus is on he that asserts that the exception applies. That not having been done, the general Rule is that 10 years is the window limit for the exercise of the right to sue in land related matters in the applicable Law in Osun State as rightly submitted by the Appellant’s Counsel.
The trial Court was therefore in error to contend and rely on the old Limitation Law of Western Nigeria and cases decided based thereon and under related limitation status of the same wordings.
A perusal of the briefs and the record of appeal show that negotiations and entreaties were on going and had not ceased before the 1st suit was instituted. Indeed in 1956, a demand was made of rents from the 2nd Defendant who was the 2nd Respondent before he was struck out of this appeal upon the application by the Respondents to do so.
The Appellants’ Counsel had argued that the erstwhile 2nd Defendant/Respondent had been on the land for over 80 years without any action against them and therefore the action was statute barred and suffered the defeat inflicted by acquiescence and laches.
This argument cannot sail; as on cross-examination, the PW5 made it clear that after writing a solicitor’s letter in 1956, and with no positive result, efforts were still on going at negotiations.
The stoppage of the payment of Ishakole after 4 or 5 times as stated by PW4 does not erode the fact that the uncontroverted fact of payment of Ishakole had not been negatived by the stoppage or suspension thereof. For one, it is evidence of a fact elicited from cross-examination and in line with the Plaintiffs’ pleadings. It is therefore evidence in proof of customary tenancy between the parties. Once a tenant, always a tenant. The cause of action in such instances remains alive at any stage or day of default. A tenant at sufferance may at anytime/day be sued. There is not prescription title in customary tenancy.
Furthermore, it is also the law that a defence of limitation of action is a special Defence, which ought to be specially pleaded and raised with all the facts upon which it is founded. Alade V. Aborisade (1960) 5 FSC 167; NBN V. AT ENG. Co. Ltd (2006) 16 NWLR (Pt. 1005) 210.
The claim of the Plaintiff upon which he pleads is what shall determine jurisdiction and it is upon the claims that the plea of limitation may be founded; it cannot be otherwise and upon the postulation of the Defendant as Appellant herein did in relying on the fact of defence touching on the payment of rent demanded.
I also agree with the Respondents’ Counsel when he argued that even if statute of limitation applied and the cause of action accrued and started running from 1956, that defence was unavailing as the action instituted in 2007 automatically had suspended or frozen the period of limitation Sifax Nig. Ltd & 4 Ors V. Migfo Nig. Ltd. If I may ask, did the Respondent fraudulently stand by or concealed facts whilst the Appellant dealt with the land such that conduct may be taken to amount to acquiescence and/or laches?
From the evidence laid or led by the respondents and answers in cross examination of their witnesses corroborated by the evidence of the appellant and 2nd Defendant at the trial, the Respondents kept on pestering a right to ownership and rent, such that they resisted.
There was, therefore, no infraction of the limitation law at all. See Isaac V. Imasuen for the above. I hold that the action was not statute barred nor infected by any act of laches or acquiescence.
Accordingly, the preliminary objection fails and is dismissed.
Issue No. Two is resolved against the Appellant, that is to say, that the action was not statute barred and the suit was competently filed and the court had jurisdiction to entertain same.
ISSUE 3
Whether the Plaintiffs/Respondents successfully proved ownership to the land in dispute by way of traditional evidence to warrant the decision of the lower Court in their favour.
The Learned Counsel for the Appellant contended that the respondents had title by traditional history; that there was no evidence of devolution of land to them; that a blanket pleading of names of people as grand and great grand children without more as traced to their ancestor on the land Ogudu Ajare without more was not sufficient.
That reliance on Exhibit OC 10 to hold that the claim to title was proved was wrongful. He relies on Anyanwu V. Uzowuaka (2009) 13 NWLR (Pt 1159) 445 at P. 472 C – D and Oyekola V. Ajibade (2004) 17 NWLR (Pt. 902) 356 at 379 (SC) to contend that the trial Court did not correctly evaluate the evidence led and therefore came to a wrong decision.
He urged the Court to note that there was a gap in the traditional history led and it was not for the Judge to fill the gap.
That in Akintola V. Balogun (2000) 1 NWLR (Pt. 642) 532 at page 549 paragraph C – F this Court had also cautioned against the non – evaluation of evidence.
Having referred to the case of Adisa V. Oyinwola to the effect that the non appreciation of the evidence of the witnesses and the case of the parties and the wrongful application of the law to a case is a clear case of not hearing and determining a case at all.
That where a Defendant filed no counter claim, as in the instant case on appeal the burden was heavier on the plaintiff to prove his case. That the burden was not on the defendant to prove his title to the same land in dispute Onovo & Ors V. Mba A. (2014) 12 SCM (Pt. 2) 578. Anyafulu & Ors V. Meka & Ors (2014) 6 SCM 1.
Finally on this issue, it was contended that the Plaintiffs/Respondents had laid the foundation for the defeat of their claim to title when they failed to disclose the other grand children and great grand children of Ogudu Ajare and therefore the line of succession down to the Plaintiffs/Respondents had not been proved. That this Court should reverse the findings made relating to ownership and resolve this issue in favour of the Appellant.
In response by its own issue 4, the respondents argued that they had pleaded and relied on traditional history to prove their title. Relying on Idundun V. Okumagba (1976) NMLR 200 at 210. It was argued that ownership may be proved in any of the five was listed in the case and that one of them is proof by traditional history.
That each of the ways suffices. Eze V. Atasie (2000) 10 NWLR (Pt. 676) 450, Osidele V. Sokunbo (2012) 51 NSCQR 337 relied upon.
That the Plaintiffs/Respondents had land as their progenitor and had given details of it down to the claimants as the descendants of Ogudu Ajare and that the representative Lakoro family the corporate name of the Ogudu Ajare descendants.
That the Appellants did not, in pleadings or evidence join issues with their family compound in respect of the land in dispute. That the respondent could take the benefit of loophole in the Defendant/Appellants’ case.
It was further submitted that aside evidence of traditional history there was evidence of ownership by proof of possession of other adjacent or connected land to the land in dispute which was verged red in Dispute Survey Plan No. OS/1170/2013/DISP/01 dated 3rd April, 2013.
That there was no joinder of issues on the traditional history nor denial of the ownership of the Lakoro family of the adjacent land verged Red in the Dispute Survey plan (Supra)
That whilst the Respondent/Plaintiff had traced its root of title to an unconditional grant by Oduduwa to their progenitor, the Appellant claims grant of the land by Ooni Ademiluyi and Ojio Alayo.
The learned Counsel contends that there was a competing claim of title; and that once established by the claimant he succeeds unless the defendant shows that his possession is such that has ousted that title. Thomas V. Holder (1946) 12 WACA 78; Oshodi V. Eyifunmi (2000) 7 SC 145 at 172; Ajibade V. Mayowa & Ors (1978) 9 & 10 SC 1 at 6; Odume V. Nnachi (1964) 1 ALL NLR 329.
Counsel contended that the case of the defendant/Appellant was even weak on the pleadings. That respondent could take advantage of the weakness; He relies on Ibero V. Ume-Ohama (1993) 2 SCNJ 156 for this position.
Referring to pages 417 – 422 of the record of appeal, it is contended that none of the front loaded documents referred as trailer loads were tendered by the Appellants.
This, the Respondent argued meant that if they were tendered they will be unfavourable to the Appellant. He urged us to so hold.
The Learned Counsel referring to the evidence of the Appellant’s witness in Cross examination as to the proof the title or grant they claimed was made in 1916 by Oba Alayeluwa to the 1st Defendant where in the witness in answer to the Question thus: “Do you have anything to show that the land in dispute was granted to the 1st respondent?” answered “I have it with our Counsel.” Submitted that no instrument of title or grant was tendered throughout the trial as pages 423 – 426 of the record goes.
That the Plaintiff/Respondents had discharged the burden placed on them to prove their claim and further more had properly taken the benefit of the Defendants/ case to “coast to victory”.
As for the second Defendant who had not appealed it is contended that his case had been permanently settled by the Judgment of the trial Court in favour of the Respondents against that Defendant as a tenant to the Lakoro family.
That finding of fact subsists and the appellant herein has not appealed as an interested party protecting the right of the 2nd Defendant at the lower Court.
That a finding of fact not challenged by an appellant in any of the grounds of appeal remains rightly or wrongly the settlement of that Issue as between the parties. Zacheaus Abiodun Koya V. UBA Ltd (1997) 1 NWLR (Pt.481) 251; Joseph Adolo Okotie-Eboh V. Chief James Ebiowo Manager & Ors (2004) 12 SCNJ 139.
That the rights of the respondents with reference to the 2nd defendant and been settled at the lower Court. That this issue be resolved in favour of the Respondents. On the whole, the respondents urged that the issue be so resolved and the appeal be dismissed with costs as lacking in Merit.
RESOLUTION
The resolution of this issue on proof of title through evidence of traditional history has been narrowed down indeed. Inspite of the much verbiage from both sides, the trite law is that there are 5 ways of proving title to land, and these are not mutually exclusive. Proof by any of the ways suffices; so long as it is in accordance with pleadings and testified to convincingly that root of title would have been proved upon one root of title alone, a declaration may be so founded. See Idundun V. Okumagba (supra).
The Plaintiffs/Respondents had pleaded traditional history as the root of their title. They had pleaded and testified to a grant by one Oduduwa to their ancestor Ogudu Ajare of the dispute land unconditionally. They pleaded and led evidence as to successors to the said Ogudu Ajare being named persons down to 2 named other persons as grand children and great grand children down to their parents and to them of the land called ?Makoro family land? ? the land in dispute.
The identity of the land is not in dispute nor is there a controversion of this pleadings and evidence in any specific way or manner particular.
As the Respondents? Counsel rightly submitted, rather than frontally deny the positive averments, on the material facts of the outright grant and devolution of the land, the Appellant merely denies. This evasive denial, no doubt has been held to be no denial but constitute an admission in law.
What is more, the Appellant claims that there is a missing link in the names of the successive owners down to the Respondent; that some numbers are not named, will not make it incomplete as the Appellants had stated that amongst them were the named persons in the tree of successive members and owners. They cannot be expected to remember or name all persons in the genealogy tree to establish a family history of succession.
That would be elevating the burden of proof in a civil claim to the herculean burden of beyond reasonable doubt. An impossible task where time and large number and memory may fail.
It is not. The burden remains this i.e. proof on the balance of probability – meaning that, the Court, if satisfied of the evidence on the preponderance of evidence the averment will be said to have been proved.
Traditional history is, after all, a version of hearsay evidence in some instances. It is also obvious that the Appellant did not controvert the evidence on traditional history as pleaded and led; However, the Appellant asserted a contrary or competing title to that land and claimed a grant to it in 1916 through one Ooni of Ife, Oba Olamiluyi, and Ejio Alayo. Where competing claim to title is raised, the burden shifts to the defendant so raising, to show that his title so asserted is superior to and dislodges the prima facie’ title also asserted and established by the Plaintiff/Claimant.
In this case, at the trial, the Appellant as 1st Defendant had through its witness who clearly stated in cross-examination that the document of grant from Oba Ademiluyi to them was with their Counsel. It is trite that proof of title by grant can only be proved by witnesses to the grant and where a document exist as claimed by the Appellant and its witness in cross-examination, it is that document that is the best evidence. See generally Section 132 of the Evidence Act 2011 clearly provides that once a disposition or anything has been put down in writing, it is the document and none other that is the admissible evidence thereof, save the exceptions are shown.
In this case, there was no such document tendered in evidence of any grant. No witness even called or conceived. That leaves the claim of title vide a grant as claimed vacuous and unproved. The Respondents was entitled to, therefore take the benefit of the Appellants? weak case in strengthening its claim of title.
The Respondents had further called as witness the (secretary) of the traditional Council or palace of the Ooni of Ife and who debunked that any land was granted to the appellants by any Ooni or the Oba Ademifuyi for that matter. This further devastated the claim of competing title raised to the Plaintiffs/Respondents’ suit.
The learned trial Judge had held that aside the proof of title by traditional history, the Respondent, had further succeeded in proving ownership of the adjacent land in the dispute survey plan verged red and tendered in evidence as being the Lakoto family land also; and in which 2nd Defendant was in possession as a tenant.
That evidence, with the proof by traditional title by evidence of traditional history, clearly made out the Respondents as persons who had, as a family, proved their right to a declaration of title and a consequential order appurtenant to the outright denial of title by a person in adverse possession, as such a person may even in law pass as a tenant at sufferance or a tenant at will. Such person(s) may be ejected or ordered to give up possession. There must not be an express contract of tenancy between them for the incidence to attach.
Title had been proved in the circumstance.
In Isitor V. Fakarode (2018) 10 NWLR (Pt. 1628) 416 the apex Court held thus ?At the Court of Appeal, the Appellant erroneously submitted on the first issue that the respondent did not prove title to the disputed land by any of the five methods inunciated in Idundun V. Okumagba (1976) 1 NMLR 200.
Having stated that she bought the land from Usman Adamu at the cost of N400.00 in 18/12/1976 who issued her with a receipt (a photocopy of which she tendered), the burden shifted on the Appellant to disprove her of deriving the title from the said Usman Adamu. Since no evidence was forthcoming, the learned trial Judge was entitled to rely on it to enter judgment on her behalf. See Okonko V. Okolo (1988) 2 NWLR (Pt. 79) 632?.
The Respondents had pleaded and testified to their root of title and its devolution to them as against the Appellants evasive denial of same and the opposite claim of title that was not proved; indeed the competing claim of grant was wholly rebutted.
The impregnable castle or bunker their Appellants learned Counsel claimed did not exist as none was indeed constructed. You cannot lawfully have a bunker not built by you or validly transferred or acquired. In Isitor v. Fakorede, (Supra) Akaahs JSC continued thus at page 423 of the report:-
“The lower Court correctly stated the legal position that what is required of the respondent on an action of declaration of ownership of land is to establish his claim by preponderance of evidence. Where the plaintiff has produced evidence in support of his case, which prima facie entitles him to judgment, the defendant will need to lead some evidence to enable the Court consider on whose side the case preponderates. See Aromire V. Awoyemi (1972) 2 SC1; Adeleke V. Iyanda (2001) 13 NWLR (Pt. 729) 1.
The Appellant did not adduce any evidence in the case. Consequently there is nothing on which to put the scale and weigh against the evidence given by the Respondent. The sale receipt tendered by the Respondent entitles her to an equitable ownership of the disputed land. See: Agwunedu V. Onwumere (1994) 1 NWLR (Pt. 321) 375”.
This was the situation in this case at the trial Court. The Appellant did not, at all, dislodge the prima facie case of the Plaintiffs/Respondents; who had to ‘Coast to victory’ as they had prided in their Learned Counsel’s submission in the Respondents’ Brief of Argument.
As argued further by the Respondents’ Counsel, the claim against the 2nd Defendant had been settled by the judgment for recovery of possession against it and forfeiture. There is no appeal against same by that 2nd Defendant; the present Appellant cannot complain against an order not affecting her, as after all whatever interest that may have been devolved on that 2nd defendant had been eroded by the absence of title in the Appellant herein. This, I reconfirm.
The possession of the adjacent land as proved to be in the 2nd Defendant as a tenant of the respondent herein and particularly as land belonging to the Lakoro family, further re-enforced the respondents’ claim of title, in my view.
The appellant’s Issue No. 3 is resolved against it. That is to say that the Plaintiffs/Respondents had successfully proved ownership of the land in dispute by way of traditional history to warrant or merit the decision of the lower Court in their favour.
ISSUES 4 AND 5
The Appellant articulated as their issues 4 and 5 the questions whether the Plaintiffs/Respondents had proved that the Defendants were their customary tenants and particularly the 1st Defendant/Appellant to entitle them to the relief of forfeiture against the Appellant; and whether the claim of possession was rightly granted.
In view of my resolution of Issue 3 supra, I shall be brief on these last two issues as they are intertwined and relate to the issue 3 closely.
The Appellant argues on the presumption of ownership by fact of possession in them of the land in dispute. Further, that there was a contradiction in the dual case of the Plaintiffs/respondents as to both a customary tenancy and a lease for a term of 50 years existing; that payment of Ishakole had stopped.
That Exhibit OC10 showed a demand for rent but with an answer that the response to it indicated the fact of a similar demand by another family i.e. Ejio family. That there was no proof of a customary tenancy, therefore.
Finally, it was contended on the last Issue Number 5 that grant of possession was wrong.
The Respondents, on these Issues had globally argued that they were entitled to all the reliefs granted to them, as they had been proved.
The Respondents had proved title to the land; they had shown that aside the ownership of the adjacent land, the second Defendant was proved to be their customary tenant; the suspension or refusal to pay ishakole or rent did not derogate from the existence of tenancy which can even be imputed or implied, in law, as a tenant at sufferance or at will, as I had held earlier in this judgment exists.
Indeed a demand or claim of a status of landlord by a 3rd party unproved is not a negation of the established tenancy between the parties; and in this case Ejio family was stated to be part of the Lakoro family, the respondent.
Issues 4 and 5 are also resolved against the Appellants.
This case looks pathetic. A relationship of several decades; a witty one on the part of the Appellants who had thought alleged gift (not proved), to a Royalty of the source had done the magic wand. They were told in Court that an unjust ‘gift’ does not qualify to confer the right to expropriate for a grant as nemo dat quad non habet, is the law. Leadership is for ‘law and Justice’ to be maintained, says the psalmist.
Should a victim of the attempt to pervert the cause of justice be sympathised with or reckoned with in the possibility of ignorance in the adamance? The stiff necked shall be broken irreparably.
However, I must say as Nweze, JSC stated in Umanah (Jnr) V. NDIC (2016) 14 NWLR (Pt. 1533) 458 at 484 thus:-
“Having made the above observations, I must, quickly, add here that my sympathy for the Appellant and his Counsel is of no moment as the law brooks neither sentiment nor empathy. Suleman V. Cop Plateau State, (2008) 21 WRN 1, 13; (2008) 8 NWLR (Pt. 1089) 298; Udosen V. State (2007) 4 NWLR (Pt. 1023) 125, 137; Ezeugo V. Ohanyere (1978) 6 ? 7 SC 171; Oniah V. Onyia (1989) 1 NWLR (Pt. 99) 514; Omole & Son Ltd V. Adeyemo (1994) 4 NWLR (Pt. 366) 48.”
I find, therefore, that there is no merit in this appeal and I dismiss it with costs of N150,000.00 in favour of the respondents against the Appellant.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of a preview of the lead judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA. I entirely agree with His Lordship’s lucid analysis of the salient issues leading to the conclusion reached therein that this appeal has no merit and ought to be dismissed. I adopt the reasoning and conclusion in the said judgment as mine. I also dismiss the appeal and abide by the consequential orders made therein including the order as to cost.
PATRICIA AJUMA MAHMOUD, J.C.A.: I read in draft the lead judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA just delivered. I am in agreement with the reasons advanced and the conclusions reached. I therefore dsrniss this appeal. I abide with the order of costs made therein.
Appearances:
Prince Peter Adetola Ogunleye, Esq.For Appellant(s)
Remi Ayoade, Esq.For Respondent(s)
