ADELANI ADEWUYI & ORS v. CHIEF (MRS.) OLAGBENKE IPAYE(2014)

ADELANI ADEWUYI & ORS v. CHIEF (MRS.) OLAGBENKE IPAYE

(2014)LCN/7113(CA)

On Friday, the 11th day of April, 2014

CA/I/255/2009

RATIO

TITLE OF LAND: FORMS OF EVIDENCE TO PROVE TITLE TO LAND

On the matter at hand, a plethora of cases avail that for a party seeking declaration of title to land to succeed, he only has to prove any or a combination of the following five (5) ways:
(1) By traditional evidence;
(2) By production of documents duly authenticated;
(3) By acts of selling, leasing, renting out all or part of the land or farming on it or on portion of it;
(4) By acts of long possession and enjoyment of the land; and
(5) By proof of possession of connected or adjacent land in rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See: Nnaji & Ors. vs. Onuoha (2011) LPELR – 4628 (CA); Idudun vs. Okumagba (1976) 9 – 10, S.C. 227 @ pages 248 – 249; rragunima vs. R.S.H.P.D.A. (2003) 12, NWLR (Pt. 834), pages 427 @ pages 442, paras E – F; Morenikeji vs. Adegbosin (2003) 8 NWLR (Pt. 873) 612 @ 661- 662. PER SOTONYE DENTON WEST, J.C.A.

CONDITIONS TO BE SATISFIED FOR A SALE OF LAND UNDER NATIVE LAW AND CUSTOM TO BE VALID

It is trite that for sale of land under native law and custom to be valid it must be proved that:
a) There was payment of purchase price.
b) The purchaser was led into possession by the vendor; and
c) The sale was in the presence of witnesses.
See Odusoga vs. Rickets (1997) 7 NWLR (Pt. 511) 1; Yusuf vs. Mathew (1999) 13 NWLR (Pt. 633) 30; Adesanya vs. Aderounmu (2000) 6 SC. (Pt. 11) 18; and Etema vs. Akenzua (20001 6 SC. (Pt. 111) 26. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

MRS. FUNMILAYO OPADOLA Appellant(s)

AND

1. LASISI AKANMU
2. RAUFU OMOBOSOYE
3. MURAINA AJAO Respondent(s)

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal came about by reason of the judgment of Hon. Justice R. A. Shiyanbola of the High Court of Osun State sitting at Osogbo, delivered on Monday the 13th of October, 2008.
The writ of summons and statement of claim were issued and filed 24th June, 2002. The plaintiffs who are respondents herein made claim against the defendants jointly and severally as follows:
Whereof the plaintiffs claim against the defendant jointly and severally the sum of N3 Million Naira being general damages for unlawful arrest, detention and malicious prosecution of the plaintiffs for trumped-up charges vide charge nos. MFP/10C/2001:
Commissioner of Police vs. (1) Lasisi Akanmu (2) Raufu Omobosoye and (3) Muraina Ajao at the instance of the defendants at the Nigeria Police Station, Osogbo and Magistrates Court Ifon respectively between 16/6/2000 – 30/4/2002.
The defendants on their part counter-claimed as follows against the plaintiffs jointly and severally:

i. Declaration of title in favour of the 2nd defendant to the three plots of land at Alapupu village via Ilobu, more particularly described in Land Agreement dated 13/4/78 and survey plan dated 30/12/97.

ii. The sum of N6 Million as general damages for the plaintiffs’ serious (sic) of acts continuous trespass on the 2nd defendant’s piece of land at Alapupu village via Ilobu since about 4/5/2000.

iii. Perpetual injunction restraining the plaintiffs or any of their agents, servants and privies from further trespassing on the 2nd defendant said land at Alapupu village via Ilobu.

In the course of hearing two witnesses, Alfa Hassan Oni Osun alias KEBE as (DW1) and Bakare Adeyemi alias ATURA as (DW2) testified in the case for the defendant. Each of the three plaintiffs testified on their own behalf. At the end of hearing learned counsel on both sides filed and exchanged written addresses. The learned trial Judge in a considered judgment delivered, on Monday 13th of October, 2008 went on to dismiss the main claim of the plaintiffs/respondents as well as the counter-claim of the 2nd defendant/appellant.
Aggrieved by the judgment of the trial court, the 2nd defendant/counter-claimant/appellant has appealed to this court vide her Notice of Appeal containing two grounds of appeal and dated and filed 12th January, 2009.
In compliance with the rules of this court, learned counsel on both sides filed and exchanged their respective briefs of argument. The appellant’s brief of argument dated and filed 11th September, 2009 and their reply brief dated and filed 19th January, 2010 but deemed proper before the court on 21st April, 2010 were both settled by AWONIYI ALABI, ESQ. On the other part the respondents’ brief of argument dated and filed 14th October, 2009 was settled by A. AJIBOLA, ESQ.
At the hearing of the appeal on 20th February, 2014, AWONIYI ALABI, ESQ. adopted and relied on their two briefs as their argument in this appeal. He urged the court to allow the appeal and set aside the judgment of the learned trial Judge wherein he dismissed their counter-claim. The respondents’ brief of argument was in turn adopted and relied upon by KUNLE AYEMOYIM, ESQ. as their argument in the appeal. He urged the court to dismiss the appeal with substantial cost.

BACKGROUND STATEMENTS
The plaintiffs/respondents being members of Alapupu Family and the 1st defendant (Bakare Adeyemi alias Atura) have had series of cases involving chieftaincy title and family land at Alapupu village, Oke Ojutu in Egbedore Local Government Area of Osun State. In one of such cases: suit nos. HOS/143/90 (a chieftaincy title case) it was adjudged among other issues that the said 1st defendant/DW2 (Bakare Adeyemi alias Atura) was not a member of Alapupu family. The judgment was delivered 20th May, 1993. It was appealed against and the appeal is still pending.
However, notwithstanding the said judgment, the said 1st defendant/DW2 (Bakare Adeyemi alias Atura) sold family land in the name of late Alapupu Salami Omolasoye who had died since 1990 to the 2nd defendant/appellant. Exhibit D2 which was tendered as a purchase receipt made out in the name of late Alapupu Salami Omolasoye was shown to have been signed by the DW2 himself as a witness. The said Exhibit D2 was signed and dated 1978 by a lawyer one Mr. H. K. Atiene who was called to Bar in 1987.
Sometime in the year 2000 the plaintiffs/respondents went into the land and destroyed the beacons in the presence of the DW1 (Hassan Oni Osun alias Kebe) who at the said time tried to no avail to stop them. Infuriated by this the 2nd defendant/appellant went and lodged report with the police against the said plaintiffs/respondents. They were eventually charged before the Magistrate Court and prosecuted on charge nos. MFP/10C/2001.
Upon being acquitted and discharged of the charge, the plaintiffs/respondents filed the main suit in this case against the 2nd defendant/appellant together with the DW1 and DW2 for false imprisonment and malicious prosecution. The 2nd defendant/appellant in her statement of defence included her counter-claim.
Both the plaintiffs/respondents’ claim for malicious prosecution and the 2nd defendant/appellant’s counter-claim for declaration of title to land were dismissed by the learned trial Judge upon which the latter has brought this appeal.
Learned counsel for the appellant distilled the following two issues from the two grounds of appeal for determination of the appeal. They read:

1. Whether the failure of the appellant to be present and/or testify at the trial vitiated her counter-claim in the circumstances of this case. (Ground 1).

2. Whether on the balance of probability, the appellant had proved her counter-claim and is entitled to same. (Ground 2).

The learned counsel for the respondents on their side came up with a lone issue for determination of the appeal and the issue is:

Whether the appellant was entitled to succeed in her counterclaim for declaration of title upon the evidence before the court? (Grounds 1 and 2).

It seems to me that the lone issue formulated by the learned counsel for the respondents is subsumed in those of the appellants. I shall therefore determine this appeal based on the two issues donated by the appellant’s counsel. The two issues are argued and determined together.

ISSUES 1 AND 2
In arguing the two issues together, the learned counsel for the appellant contended that neither the failure to be present or testify at the trial by the appellant can vitiate her counter-claim which she had successfully proved on the balance of probability reasons being that in an action for declaration of title as herein, the plaintiff can prove the claim by any of or a combination of any of the following five ways:

a) By traditional evidence;
b) By production of documents of title which are duly authenticated;
c) By acts of selling, leasing, renting out all or part of the land or farming on it or on portion of it;
d) By acts of long possession and enjoyment of the land; and
e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.

See Idundun vs. Okumagba (1976) 9-10 SC. 227, 248-249; Iragunima vs. R.S.H.P.D.A. (2003) 12 NWLR (Pt. 834) 427 at 442, paras, E-F.

Counsel contended that these five ways of proving title to land are disjunctive in the sense that a party who proves any of them is entitled to the ownership of the land. That the 2nd defendant/counterclaimant/appellant was able to prove her title to the land in dispute by four out of the five ways of proving title and as such is entitled to the declaration sought.

Counsel’s further contention is that Exhibits D1 and D2 though not deeds of conveyance, yet they qualify and had given the 2nd defendant/appellant an equitable interest in the land in dispute which is as good as a legal estate and her equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity and that there is no such purchaser in the instant case. He argued that Exhibits D1, D2 and D3 are not void but rather are valid as agreements for lease. Obijuru vs. Ozims (1985) 2 NWLR (Pt. 6) 167 at 185 (A-D).

Appellant’s counsel pressed on that since the plaintiffs/respondents agreed that the author of Exhibits D1 and D2 was their head and he died in 1990 whereas the two exhibits were made since 13th April, 1978, why did they stand by without challenging the 2nd defendant/appellant when Salami Omolaoye was alive so that he could have been joined as a party and the court would have had the benefit of his evidence. The plaintiffs/respondents stood by for almost 4 (four) years, after Baale Omolaoye had died hence they are stopped from challenging the appellant now.

Submits that the plaintiffs/respondents have not proved that they were the authentic signatories to the sale of Alapupu family land before and at the time Exhibits D1 and D2 were made and that even now there is no evidence on record that the respondents are the exclusive signatories to the sale of Alapupu family land.

The learned counsel also submitted that the appellant is entitled to a declaration of title having established and proved the same. That the appellant also established that the plaintiffs/respondents trespassed upon her said land and is therefore entitled to damages and an injunction against the respondents.

In further submission, learned counsel contended that the dismissal of the 2nd defendant/counter-claimant/appellant’s counter-claim by the learned trial Judge was wrong and a misdirection in law in that a litigant need not execute a Power of Attorney for his interest to be defended in court if such a litigant cannot be present in court and if such a claim can be otherwise prosecuted. See Salim vs. Ifenkwe (1996) 5 NWLR (450) C.A. 564, 586 paras. C – F; and Ndukauba vs. Kolomo (2006) 4 NWLR (Pt.915) SC. 411, 430, para. G.

He submitted that there was ample evidence to show that the 2nd defendant/counter-claimant/appellant’s absence from court throughout the proceedings was not as a result of disregard for the court but due to sickness which made her unable to attend or testify personally as she was bedridden due to stroke. The learned counsel finally contended that in his anxiety to enter judgment against the appellant, the learned trial Judge failed to put evidence of either party on an imaginary scale and/or failed to note that the evidence of the appellant was weightier than that of the respondent and has established and proved her counter-claim. See Odofin & Ors. vs. Mogaji & Ors. (1978) 1 LRN 212 at 213 – 214, paras. 9-1 and 215, para.6.

Upon his forgoing submissions the learned counsel for the appellant urged on us to allow this appeal, set aside the judgment of the lower court on the counter-claim delivered on 13th October, 2008 and award all the appellant’s reliefs sought in her counter-claim.

In reaction to the issues the learned counsel for the respondents submitted that the root of title pleaded and relied on by the appellant which she was duty bound to prove by evidence in order to succeed in her counter-claim was the purported sale of 3 plots of land to her by Salami Omolasoye under native law and custom. Counsel goes on to submit that in a long line of authorities where a party pleads and relies on a root of title in proof of his title he will succeed or fail on that root of title pleaded and relied on and cannot rely on acts of ownership in proof of his title. In other words, acts of ownership cannot avail a party that fails to establish his root of title. For this proposition he relied on the following authorities:

Odofin vs. Ayoola (1984) 11 SC. 72, 116; Mogaji vs. Cadbury (1985) 7 SC. 59, 158; Thomas vs. Holder 12 WACA 78, 80; Jegede vs. Gbajumo (1974) 10 SC. 183, 187; Da Costa vs. Ikomi (1968) 1 All NLR 394, 398 – 399; Ogbechie vs. Onochie (1988) 2 SCNJ 170, 196; Fasoro vs. Beyioku (1988) 4 SCNJ 23, 31-32; Lawal vs. Olufowobi (1996) 12 SCNJ 376, 385; Oyadare vs. Keji (2005) 1 SCNJ 35, 142; Dabo vs. Abdulahi (2005) 2 SCNJ 76, 95; and Oni vs. Olokun (1995) 2 NWLR (Pt.370) 189, 200.

On the prerequisites of a valid sale or purchase of land under Customary Law which are: (a) payment of purchase price; and (b) handing over of the physical possession of the land in the presence of witnesses-the learned counsel for the respondents referred to the following a authorities :

Etajata vs. Ologbo (2007) 30 NSCQR 966, 1017; Adedeji vs. Oloso (2007) 29 NSCQR 888, 921-923; Akinterinwa vs. Oladunjoye (2000) 2 NSCQR 151, 163; Cole vs. Folami (1956) 1 FSC 66, 68; and Folarin vs. Durojaiye (1988) 2 SCNJ 212, 222 – 223, 227.

Having settled with the issue of the essential requirements of a valid sale of land under Customary Law, learned counsel went on to pose the question to wit: whether the appellant pleaded and adduced evidence of a valid sale of the land in dispute to her. Did she plead and call evidence of at least 2 persons who actually witnessed the occasions of the payment of the purchase price and the handing over of the possession of the land to her. Counsel responded to his said question in the negative. He referred to paragraph 9(a) of the Statement of Defence and Counter-Claim of the appellant and submitted that what was pleaded therein was simply that the 1st defendant (the DW2) was a witness to the sale. That it was not specifically pleaded that the DW1 and the DW2 witnessed the actual occasions of the payment of the purchase-price and the physical handing over of the possession of the land to the appellant. Having referred to the relevant portions of the evidence of the DW1 and DW2, learned counsel contended that their evidence fell short of the legal requirements of a valid customary sale and transfer of land as laid down in the authorities. In this regard that the purported purchase of the land in dispute by the appellant from the late Salami Omolaoye if any, was invalid, null and void and that the appellant did not thereby acquire a valid title to the land in dispute.

Further in stating their position, the learned counsel for the respondents submitted that the learned counsel for the appellant misconceived the legal meaning of traditional evidence. He stated that traditional evidence is about an event beyond living memory, whereas the purported transaction being alleged in this case by the DW1 and DW2 was one within living memory. Opines that the submission that the appellant established her title to the land in dispute through “traditional evidence of purchase” from the late Salami Omolaoye is therefore contradictory in terms and meaningless when the transaction being alleged happened within living memory and therefore constituted positive evidence, ,not traditional evidence. See Awara vs. Akalibo (2002) 12 SCNJ 62, 79 and 92 – 93.

Regarding the submission of the learned appellant’s counsel that the appellant proved her title by production of documents, Exhibits D1, D2 and D3, the learned counsel for the respondents contends that the appellant’s counsel misconceived the meaning of title documents as meant in Idundun vs. Okumagba (supra). That document of title in Idundun vs. Okumagba (supra) is meant to be an instrument of title which is duly authenticated, duty stamped and registered in the Lands Registry. Thus, Exhibits D1 and D2 are not documents of title and are therefore inadmissible to prove title. Rather they are admissible only as purchase receipts or as acknowledgment of purchase price. He relied on Yaya vs. Mogoga 12 WACA 132 at 133 -134; Ogunbambi vs. Abowab 13 WACA 222 at 224; and Etajata vs. Ologbo (2007) 30 NSCQR 966 at 1004; Akinduro vs. Alaya (2007) 30 NSCQR 601 at 617 per Aderemi JSC, and section 100 of the Evidence Act (?).

Counsel submits that the respondents specifically pleaded at paragraph 15 of the respondent’s statement of claim that Exhibit D2 was irregularly executed and back-dated. The appellant did not specifically deny the averments; she was completely silent on same. Submits that a close examination of Exhibits D1 and D2 will reveal that they bore different left thumb-prints of Salami Omolaoye as vendor and Funmilayo Opadola as buyer respectively. Against this backdrop, counsel urged on us to apply the provision of section 108 of the Evidence Act (?) and if the difference and or disparity in the thumb-printing of the documents is confirmed, the documents should be rejected as suspicious, irregular and lacking credit.

Further in his contention learned counsel for the respondent stated that the documents were prepared for illiterates without a proper JURAT. That the DW2 who signed as interpreter in the interpreter’s column was himself an illiterate person who could neither speak, understand nor read English language. There was therefore for this reason a violation of section 3 of the illiterates Protection Law of Osun State rendering the documents invalid, null and void.

Still in line with their pleading at paragraph 15 of their statement of claim, learned counsel argued that H. K. Atiene who prepared Exhibit D backdated it to 1978, whereas he was called to the Bar in 1987, vide Claudie Limited Publication, published in the 1989 Lawyers Diary containing the list of newly enrolled Lawyers for the year 1987. Counsel invited the court to take judicial notice of the said publication and come to the conclusion that since it cannot be disputed that Lawyer H. K. Atiene was called to Bar in 1987, and Exhibit D2 was dated 1978, it is obvious that the document was irregularly back-dated and consequently be declared irregular, invalid, null and void, consequent upon which Exhibits D1 and D2 should be rejected.

Learned counsel also argued that Exhibits D1 and D2 cannot be accepted to establish an equitable interest because the appellant did not counter-claim for any equitable interest or relief and the court cannot grant an order of specific performance when no such relief is before the court, and the appellant was not in possession as she was permanently prevented from taking possession of the land and from erecting her building thereon. See Akinduro vs. Alaya (supra) at page 620 paras. E-G per Aderemi JSC. Counsel referred the court to the judgment of the lower Magistrate Court in Exhibit P2, pages 8-9 and 12 thereof consequent upon which he opined that it is beyond dispute that the appellant was not in possession of the land in dispute, and without possession, equitable interest cannot arise.

In stating their case further, learned counsel for the respondent referred to the contention of the learned counsel for the appellant to wit: that since it was the head of Alapupu family in the person of Baale Salami Omolaoye, that purportedly sold the land to the said appellant that the transaction was valid. In other words that the argument of the learned counsel seems that the purported sale by Salami Omolaoye was voidable and not void ab initio. That the appellant also argued that the respondents’ Alapupu family stood by without challenging the appellant in Salami Omolaoye’s life-time and for which they are now estopped from challenging her in this suit.

Counsel for the respondent in this stance gave their position to be that a voidable sale by Salami Omolaoye was liable to be challenged timeously and voided by the non-consenting members of his family. Counsel relied on Ekpendu vs. Erika 4 FSC. 78 at 81; and Falaju vs. Amosu (1983) 2 SCNLR 209, 221. Against this backdrop the counsel submitted that since there is pleading and evidence that the appellant was promptly challenged and prevented from taking possession and from building on the land in dispute, the voidable sale by Salami Omolaoye, if any, had been effectively avoided as a result of which the appellant prosecuted the respondents vide Charge nos. MFP/10C/2001: COP. vs. Lasisi Akanmu & Ors. (Exhibit P2).

Respondents’ counsel pressed on that the appellant was noticed on the land in dispute in 2000 and was immediately challenged and prevented from taking physical possession of the land and from commencing to build on same. He urged on us to reject the appellant’s contention that she was in possession.

Further contends that it is not the presence of the appellant in court or her absence from it as the case maybe, that would make her succeed in her case; rather it is the evidence of a valid sale of the land to her through the evidence of witnesses who actually witnessed the payment and handing over of the possession of the land to her. Counsel pressed on that the DW1 and DW2 who gave evidence in court never testified that they actually witnessed the appellant pay the purchase price nor actually watched the handing over of the possession of the land to her to meet the legal requirements of a valid sale of land under Customary Law.

Regarding the Survey Plan (Exhibit D3), the learned counsel for the respondent submitted that it does not evidence title, but act of ownership or trespass depending on whether the appellant was able to establish her title against the respondents or not. If appellant was able to establish her title against the respondents, it will be considered as act of ownership, but since she failed to establish her title on the evidence before the court, the plan constituted an act of trespass. He relied on: Odofin vs. Ayoola (supra); Mogaji vs. Cadbury (supra); Ogbechie vs. Onochie (supra); Fasoro vs. Beyioku (supra); Oyadare vs. Olufowobi (supra); Dabo vs. Abdulahi (supra); and Oni vs. Olokun (supra).

Consequent upon all he has submitted above, the learned counsel for the respondents urged on us to hold that the appellant was not entitled to succeed in her counter-claim on the evidence before the court and consequently dismiss her appeal with substantial costs.
The learned counsel for the appellant had filed a reply brief which is to a substantial extent, a repetition of the appellant’s brief.

RESOLUTION OF THE TWO ISSUES RAISED

Though the two issues are to be considered together but I find it pertinent to start from the 2nd leg of the issue and work up to the first leg. Thus for the appellant who is seeking declaration of title to the disputed plots of land, the law as has been made manifest in a plethora of cases is that such a claimant can succeed by proving any or a combination of the following five ways:
1) By traditional evidence;
2) By production of documents duly authenticated;
3) By acts of selling, leasing, renting out all or part of the land or farming on it or on portion of it;
4) By acts of long possession and enjoyment of the land; and
5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See also Ayanwale vs. Atanda (1988) 1 NWLR (Pt. 688) 22; Morenikeji vs. Adegbosin (2003) 8 NWLR (Pt. 823) 612 at 661 – 662; and Nnaji & Ors vs. Onuoha (2011) LPELR-4628 (CA).

The 2nd defendant/counter-claimant/appellant) as per her counterclaim pleaded ownership of the land in dispute by way of purchase of the same from the late Baale Alapupu (Salami Omolaoye) with the 1st defendant as a witness of the sale. She further pleaded receipt, an agreement prepared by Lawyer H. K. Atiene dated 13/4/78 as well as a survey plan dated 30/12/97 as proof of sale to her. Appellant further pleaded that she was going to also lead oral evidence of eye-witnesses in addition. See paragraphs 9 and 15 of the defendants’ statement of defence and counter-claim as contained at pages 10 – 11 of the record.

Going by the pleadings it is clear that the appellant was going to rely on a combination of oral traditional evidence and production of documents of entitlement and or perhaps evidence of purchase under native law and custom.

In the attempt to establish her case, the 2nd defendant/counterclaimant/appellant who did not give evidence at the trial called two witnesses, the DW1 and DW2. The DW1 (Alfa Hassan Oni Osun) at page 27 particularly the last three lines thereof had this to say:
“……. The land was granted to my sister by the late Alapupu. I know Chief Salami Omolaoye. The said Alapupu is now late.”
The DW2 (Bakare Adeyemi) on his side gave evidence as follows:
“…… The second defendant is the owner of three plots of land purchased from Salami Omolaoye the late Alapupu. I was there when the said second defendant purchased the land. I was a witness to the sale then. About eight years ago, the 1st DW1 came to call me that I should follow him to his sister’s land. On getting there the plaintiffs had destroyed the foundation on the land and the four corner piece. I saw the plaintiffs on the land. I called the plaintiffs but they didn’t answer me…..” See page 28, the last four lines and page 29, the first three lines.
In line with the pleading at paragraph 9(a) to wit that the 1st defendant was a witness to the sale, the said 1st defendant (DW2) in his evidence at the trial court testified that he witnessed the sale of the land to the appellant. Obviously the 3rd defendant (DW1) was never pleaded to be a witness of the sale neither did he testify to witnessing the sale. His major thrust was that the land was a grant to his sister the 2nd defendant/counter-claimant/appellant and that the grant was made by late Alapupu (Chief Salami Omolaoye). Flowing from the foregoing evidence of the DW1 and DW2, I am satisfied that the DW2 witnessed the sale.
Exhibits D1, D2 and D3 were tendered in furtherance of the case of the counter-claimant/appellant. Exhibit D1 is a Land Receipt No. 22 headed Chief Salami Omolaoye Alapupu of Ido-Osun, dated 13/4/78 and evidencing payment of the sum of one thousand five hundred naira for 3 plots of land allocated to Funlayo Opadola (counterclaimant/appellant). Exhibit D2 is a Land Agreement dated 13th April, 1978 between CHIEF SALAMI OMOLAOYE, the Alapupu of Ido-Osun as the vendor on the one part and FUNMILAYO OPADOLA as the purchaser on the other part. The Agreement which was prepared by H. K. Atiene, Esq. had two witnesses-namely Bakare Adeyemi, a Mechanic of Atura Quarters, Alapupu and Hon. Silas A. Opayinka, a Nurse of Oluwomi’s compound, Ilobu. Exhibit D3 is a Survey Plan prepared by Surv. O. T. Oguneke, dated 30/12/97 shewing the property of Madam Funmilayo Opadola.
Now the learned counsel for the respondents made some submissions which border on forgery as it relates to Exhibits D1 and D2. The allegations were actually not specifically denied by the appellant. It seems to me and I so hold that there was nothing to deny or admit in the circumstance. This is because an allegation of forgery which hinges on criminality is like a sore thumb in a civil proceeding. The standard proof in this regard is proof beyond reasonable doubt which the respondents have failed woefully to discharge. See sections 138(1), (2), 139 and 141 of the Evidence Act, 2004 and the case of Ngige vs. Obi (2005) 14 NWLR (Pt. 999) 171. With no proof whatsoever of the allegation that Exhibits D1 and D2 were indeed forged, the court is constrained to discountenance the argument and hold them to be authentic in the circumstance.
Also the learned counsel for the respondents called upon this court to compare the thumb-impressions on Exhibits D1 and D2 respectively purported to be those of Salami Omolaoye as seller of the land and Funmilayo Opadola as the buyer and see that they are different. He relied on the provision of section 108 of the Evidence Act in making the application.
For purposes of clarity the said provision is reproduced hereunder:
1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one
2) which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose
3) The court may direct any person present in court to write any words or figures or to make finger impressions for the purpose of enabling the court to compare the words, figures or finger impressions so written with any words, figures or finger impressions alleged to have been written or made by such person:
I am afraid that the above misgivings as raised by the learned counsel for the respondents are belated in that he ought to have raised same before the trial court to enable it take a decision one way or the other on it. It was indeed for the trial court to carry out the comparison of the signatures in line with the foregoing provisions if need be. Then shall this court have the leverage to take a second look at the facts which gave rise to the trial court’s decision. As it is, this court lacks the competence to delve into such issues which are being raised here for the first time, more so as no prior leave of this court was sought and obtained as required by law. Since the learned trial court was not opportuned to make any pronouncement on the authors and status of Exhibits Dl and D2 before they were admitted in evidence by it, raising them now is of no moment. They are therefore discountenanced.
Exhibit D1 without an iota of doubt is a purchase receipt showing that the counter-claimant/appellant made a payment of the sum of N1,500:00 (One Thousand Five Hundred Naira) and that the payment was received by Chief Salami Omolaoye in respect of 3 plots of land allocated to the former. lt shows that there was payment of purchase price which accords with the requirement for a valid sale of land under customary law. Thus, with the payment of purchase price as evidenced in Exhibit D1 and the production of Exhibit D2 though an unregistered land agreement, it seems to me and I so hold that the counterclaimant/appellant did acquire an equitable interest on the disputed 3 plots of land and that is a good title. The equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. See Okoroafor & Ors. vs. Udensi & Anor. (2013) LPELR- 20649(CA); Waribigha vs. Owerre (2012) 3 NWLR (Pt. 1288) 530.
Since Exhibits D1 and D2 were obviously made for the appellant by late Salami Omolaoye who at the time was Baale/Head of Alapupu he thereby led the counter-claimant/appellant into possession of the disputed land. Being the Baale/Head of the respondents’ family at the time the transaction was entered into, the late Salami Omolaoye as vendor had the right to sell and validly transferred title of the land in dispute to the appellant. The execution of Exhibits D1 and D2 to my mind culminated into the vendor (late Baale Salami Omolaoye) leading the purchaser i.e. the 2nd defendant/counter-claimant/appeltant into possession of the land in dispute.
The learned counsel for the respondents had argued that the appellant did not specifically plead and adduce evidence that the DW1 and DW2 actually witnessed the payment of the purchase price and the actual handing over of the possession of the land to her. By this contention I think the learned counsel has tried to impute what is not envisaged by the law regarding sale of land under customary law. Evidence of payment of the purchase price and a witness of the sale are enough steps to guarantee the purchaser possession of the land paid for. Talking of actual handing over as if it is practicable to move an immovable res such as land could not have been the intendment of the law.
From every indication, Exhibits D1 and D2 coupled with the unchallenged evidence of the DW1 and the DW2 in that regard, all go to establish that the counter-claimant/appellant acquired equitable interest in the land when she paid the purchase price by which she was led into possession by the vendor late Salami Omolaoye. See Ero vs. Tinubu (2012) 8 NWLR (Pt. 1301) 104, 125; Nekpenekpen vs. Egbemhonkhaye (2014) LPELR-22335 (CA), ratio 9; and Nsiegbe vs. Mgbemena (2007) 4 SCNJ 359, 386. The DW2 testified as a witness of the sale and it suffices as no specific number of witnesses is required by law to witness any such sale.
Whether the appellant proved her case vide traditional evidence or through positive evidence does not remove from the fact that her case has been established one way or the other. Albeit, traditional evidence envisages oral evidence of tradition or event as passed down from generation to generation more so when some of the actors of the said event are no more. Both parties to the action are ad idem that the late Baale Salami Omolaoye who sold and led the appellant into possession of the land was already dead at the time his act of selling the 3 plots of land was called into question by the respondents.
ln a situation where the appellant had justified her counter-claim not just by traditional evidence but additionally by production of the admitted documentary evidence to wit: Exhibits D1, D2 and D3, she cannot be said to have failed in the discharge of the burden placed on her regarding proof of ownership of land under customary law. This is more so where such burden could be discharged by proving any one or a combination of the five modes as has been actualized in the instant case. See Ayanwale vs. Atanda (1983) 1 NWLR (Pt. 588) 22; Ekpo vs. Ita II NLR 68; and Egbo vs. Agbara (1997) 1 NWLR (Pt. 481) 293.
On the whole I am satisfied that on the balance of probability the 2nd defendant/counter-claimant/appellant has been able to show through the totality of her case in court that she acquired good title to the land in dispute. This now takes me to the issue of her absence from and failure to testify at the trial court and whether it vitiated her case.
As rightly submitted by the learned counsel for the appellant in their brief of argument a litigant need not execute a Power of Attorney for his or her interest to be defended in court if such a litigant cannot be present in court and if such a claim can be otherwise prosecuted.
There is no rule of law or practice to the effect that a plaintiff or claimant must be physically present in court to prosecute his/her claim and or testify in his/her case. All that the litigant needs to do is to provide witnesses and which witnesses in my view, may or may not include him/he in proof of his/her case. See also Ndukauba vs. Kolomo (2006) 4 NWLR (Pt.915) S.C.411 at 430. In the case of Mainagge vs. Gwamma (2004) 9 – 12 SCM, 129, 130, which the learned trial Judge relied upon to dismiss the 2nd defendant/counter-claimant/appellant’s counter-claim, it was held by the Supreme Court at ratio 2 thereof that:
“In this case the appellant who counter-claimed had for reasons best known to him, not only refused to testify as to the veracity of the assertion in his pleadings but even failed or neglected to call any witness………. to strengthen his case. He is deemed to have abandon.” [Emphasis mine].
The foregoing authority is distinguishable from the instant appeal in that in the cited case, not only did the counter-claimant fail to testify but he also failed and or neglected to call any witness to testify to the veracity of the assertion, while in the instant appeal witnesses were called. The two witnesses (DW1 and DW2) who were called were able to substantiate and prove the assertions in the counter-claim. It was therefore with all due respect erroneous of the learned trial Judge to have ruled thus:
“l hold therefore that the second defendant by reason of her failure to testify as to the veracity of her claim, her counter-claim is deemed to have been abandoned. The counter-claim is liable to be dismissed and it is accordingly dismissed.”
Irrespective of her absence from court which was due to her predisposition to stroke, the case of the 2nd defendant/counterclaimant/appellant was duly established before the trial court. The decision reached by the learned trial Judge to dismiss the counter-claim as abandoned, is in my view against the weight of evidence. It cannot therefore be allowed to stand. The effect is that the absence of the 2nd defendant/counter-claimant/appellant from the trial court has no impact on the success of her case.
This appeal in the event of all I have said above succeeds. Accordingly the judgment of Hon. Justice R. A. Shiyanbola of the Osun State High Court on the appellant’s counter-claim delivered Monday the 13th of October, 2008 is hereby set aside. The reliefs as sought by the said counter-claimant/appellant against the plaintiffs/respondents jointly and severally are granted thus:
i. That the 2nd defendant/counter-claimant/appellant is entitled to the three plots of land at Alapupu village via Ilobu, and more particularly described in Land Agreement dated 13/4/79 and survey plan dated 30/12/97.
ii. The sum of N250,000:00 (Two Hundred and Fifty Thousand Naira) is awarded as general damages for the plaintiffs’ series of acts of trespass committed on the 2nd defendant’s said piece of land at Alapupu village, via Ilobu since about 04/05/2000.
iii. The plaintiffs or any of their agents, servants and privies are also restrained perpetually from further trespassing on the 2nd defendant’s said land at Alapupu village, Ilobu.
Appeal succeeds.

SOTONYE DENTON WEST, J.C.A.: The facts and the law in this appeal have been exhaustively dealt with in the judgment of my learned brother, JOMBO-OFO, JCA, and which I am in entire agreement that I need no further expatiation thereof.
However, I wish to make a few passing comments on whether the appellant’s case was sufficient enough to meet the requirements of a valid sale under customary law in relation to her counter-claim in this appeal.
Having attuned myself with the facts of this case, may I start off, by expressing my reservation on why the respondents chose to challenge the seemingly hapless appellant on the disputed plots of land long after the death of the vendor Baale Salami Omolaoye, their family head. Had he been alive, the court would have had the benefit of his evidence as he would have been joined as a party in the suit.
On the matter at hand, a plethora of cases avail that for a party seeking declaration of title to land to succeed, he only has to prove any or a combination of the following five (5) ways:
(1) By traditional evidence;
(2) By production of documents duly authenticated;
(3) By acts of selling, leasing, renting out all or part of the land or farming on it or on portion of it;
(4) By acts of long possession and enjoyment of the land; and
(5) By proof of possession of connected or adjacent land in rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See: Nnaji & Ors. vs. Onuoha (2011) LPELR – 4628 (CA); Idudun vs. Okumagba (1976) 9 – 10, S.C. 227 @ pages 248 – 249; rragunima vs. R.S.H.P.D.A. (2003) 12, NWLR (Pt. 834), pages 427 @ pages 442, paras E – F; Morenikeji vs. Adegbosin (2003) 8 NWLR (Pt. 873) 612 @ 661- 662.
The appellant/counter-claimant, Mrs. Funmilayo Opadola pleaded ownership of the land in dispute by way of purchase of the said plots of land from the late Baale Alapupu (Salami Omolaoye) with the first (1st) defendant as a witness. She also pleaded receipt evidencing payment for the plots of land ‘Exhibit D1′. Likewise was Exhibit D2 as a land agreement dated 1978 between the late Baale Alapupu, as Chief Salami Omolaoye as the vendor on one part and Funmilayo Opadola, the appellant on the other part. Exhibit D3 as a survey plan dated 30/12/97 shows the property as that of the appellant.
I hold the view that when these pieces of evidence are pieced together, it satisfies the essential requirements needed to validate a sale of land under customary law, which are:
(a) Payment of purchase price
(b) Handing over of the physical possession of the land in the presence of witnesses.
The respondents’ counsel argument that the appellant did not specifically plead and adduce evidence that DW1 and DW2 actually witnessed the payment and actual handing over of the land to the appellant is neither here nor there in this instant case, for land is not a chattel that can be practically handed over like an item of clothing.
On the whole therefore, I am satisfied that the appellant has been able to justify her counter-claim by traditional evidence and production of admitted documentary evidence to wit: Exhibits D1, D2 and D3 and has by so doing discharged the burden placed on her regarding proof of ownership- of land under customary law.
Accordingly, I also set aside the judgment of the lower court.
I agree that this appeal has merit and it ought to be allowed. I too allow the appeal. I abide by all the orders granted in the lead judgment.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Cordelia Ifeoma Jombo-Ofo JCA. I agree with the reasoning and conclusion reached therein, that the appeal is not lacking in merit.
I also abide with the consequential order(s).

Appearances

Awoniyi Alabi, Esq. with R.U. Nwogu, Esq.For Appellant

AND

Kunle Ayemoyin, Esq.For Respondent