KARIMU OLAIFA & ORS v. DAVID TANIMOMO & ORS (2017)

KARIMU OLAIFA & ORS v. DAVID TANIMOMO & ORS

(2017)LCN/10170(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of July, 2017

CA/AK/81/16

RATIO

PRELIMINARY OBJECTION: THE DUTY OF THE COURT TO CONSIDER THE ISSUES RAISED IN THE PRELIMINARY OBJECTION FIRST BEFORE DETERMINING THE MERITS THE CASE; THE ESSENCE OF PRELIMINARY OBJECTION

It is pertinent that I resolve the preliminary objection raised herein before I go to the merits of the case. This is in compliance with the legal practice that issues raised in a preliminary objection must first be disposed of by the Court before going into the merits of the case. See Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 SC. The apex Court held in Efet v. I.N.E.C. (2011) 1 SCNJ 179 that “The aim/essence of a preliminary objection is to terminate at the infancy, or as it were, to nip it at the bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses hearing of the matter in order to save time”. PER MOHAMMED AMBI-USI DANJUMA, J.C.A

FRESH ISSUES ON APPEAL: THE EFFECT OF FRESH ISSUES ON APPEAL RAISED WITHOUT THE LEAVE OF THE COURT

It is trite that a Court has no business dealing with a fresh issue or points raised on appeal without its leave. Such fresh issues raised without the leave of Court are incompetent and liable to be struck out. See Garuba v. Omokhodion(2011) 6 SCNJ 334; Onwuka v. Ononuju (2009) 5 SCNJ 65. PER MOHAMMED AMBI-USI DANJUMA, J.C.A

ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION MUST BE DERIVED FROM THE GROUNDS OF APPEAL

It is also established in law that issues for determination must be formulated from the grounds of appeal contained in the notice of appeal before the Court. See Chief John Oyegun v. Chief F. A. Nzeribe (2010) 6 SCNJ 74; Wachukwu v. Owunwanne (2011) 5 SCNJ 197; Baliol Nig. Ltd v. Navcon Nig. Ltd (2010) 5 SCNJ 125. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

IDENTITY OF THE LAND: WHETHER THE FIRST DUTY OF ANY CLAIMANT OF TITLE TO LAND IS IDENTIFICATION OF THE LAND IN DISPUTE

However, it is established in law that the first duty of any claimant of title to land is to show exactly and precisely, a defined and identifiable area to which his claim relates. See Ukaegbu v. Nwololo (2009) 1 SCNJ 49. PER MOHAMMED AMBI-USI DANJUMA, J.C.A

DECLARATION OF TITLE TO LAND: METHODS THROUGH WHICH A PLAINTIFF CAN PROVE HIS TITLE TO THE LAND IN DISPUTE

As established in a plethora of decided authorities, a Plaintiff whose existence on a land he acquired either through grant, settlement, sale or conquest as the case may be if challenged, there are five methods or ways through which he can prove his title. They are:

By traditional evidence.
By production of document of title duly authenticated and executed.
By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of time ownership.
By acts of long possession and enjoyment.
By proof of possession connected or adjacent land in circumstance tendering it probable that the owner of such land connected or adjacent land would in addition, be the owner of the land in dispute.

See Idundun v. Okumagba (1976) 9-10 SC 27; Nruamah v. Ebuzoeme (2013) 1 SCNJ 128; Nwokidu v. Okanu (supra).

The law has made it clear that it is sufficient if the Plaintiff is able to prove one of the five ways to establish his claim for declaration of title. See Nruamah v. Ebuzoeme (supra); Peter Ojoh v. Owuala Kamalu & 3 Ors (2005) 12 SCM 332; (2005) 12 SCNJ 236 @ 261; (2005) 18 NWLR (Pt. 958) 523 @ 574-575. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

JUSTICES

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

Between

1. KARIMU OLAIFA
2. SIKIRU MORONKEJI
3. JIMOH RABIU
(For themselves and on behalf of Erinmi family Alaagba’s compound) Appellant(s)

AND

1. DAVID TANIMOMO
2. ADEBAYO ADEKUNBI
3. ADEYINKA ADEKUNBI
4. ADEKUNLE ADEKUNBI
(For themselves and on behalf of Akoda family) Respondent(s)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of the High Court of Osun State sitting at the Ede Judicial Division, delivered on the 27th day of January, 2016 by Hon. Justice A. G. Onibokun.

The Appellants as Plaintiffs in the Court below took out a Writ of Summons against the Respondents as Defendants on 23/03/2009. By paragraph 21 of the Appellants Amended Statement of Claim dated and filed 07/11/2013, the Appellants claimed against the Respondents as follows:
1. A declaration that the Plaintiffs are entitled to a statutory right of occupancy on all that parcel of land lying, being and situate at Alaadota Area, Okinni, measuring about 70 Hectares and more particularly described in dispute Survey No: D5/0896/2010/LD002 of 14/10/2010 prepared by O. E. Adeleye, Registered Surveyor.
2. An order forfeiting the license to plant arable crops granted the Defendants for denying them Licensor’s title.
3. An injunction restraining the Defendants from further entering or trespassing on the land.

The Respondents as Defendants filed a 58 paragraph Amended Statement

of Defence and Counter Claimant against the Plaintiffs/Appellants as follows:
a. A Declaration that the Defendants are entitled to a Statutory Right of Occupancy on all that parcel of land being and situate at Alaadota Area. Okinni measuring approximately 20.888 Hectares more particularly described in the Dispute Survey Plan No: OS/DT/374/2010 of 16/06/2010 drawn by Dr. O. O. Babarinde, a Registered Surveyor and bounded as follows:
i. On the 1st side by Laboranwa Palm tree/Apata pete where the plaintiffs and Defendants share boundary.
ii. On the 2nd side by Abiodun/Gbodekije family land (the family of the incumbent Olokinni of Okinni);
iii. On the 3rd side by Kukumi/Olateju/Oyewole Ruling House and
iv. On the 4th side by Alabaadi farm land.
b. A perpetual Injunction Restraining the Plaintiffs, their agents, privies or anybody claiming through them from further entering the land in dispute and
c. Sum of N2,000,000.00 (Two Million Naira) as cost of defending this suit.

SUMMARY OF FACTS:
The Appellants’ case is that the land in dispute forms part of the land, which is vested in the Appellants forefathers, Erinmi

Faleye upon a grant by Oba Kinimofisomo, a former Olokinni of Okinni under native law and custom. Oba Kinimofisomo was one of the seven (7) sons of Orunmoyeniyi who founded Okinni land. The grant made to Erinmi took place over 200 years ago, and Fageebo and his descendants maintained undisturbed possession of the land part of which is now in dispute and put customary tenants on the land which is situate at Alaadota Area, Okinni.

Fageebo, (or Geebo for short) the Appellants progenitor permitted Akoda, the Respondents forefather to be planting arable crops which permission was extended to the Respondents until about seventeen years ago. Recently when the Respondents started laying claims to the land as a result of which the Respondents were chased away, the father of the second Appellant planted palm trees, cashew trees on the land. But after much plea and the intervention of Olori Olomooba and other Chiefs, the Respondents were permitted only to inter plant arable crops with the palm trees and cashew trees on the land now in dispute.

?It was in the 2007 when the second Appellant went unto the land sent away persons brought unto the land by the

second Respondent. The Appellants first, reported the criminal trespass by the Respondent to the Police at Area Commanders Office, Osogbo. The Area Commander, after hearing the reports of investigation advised the Respondent to keep off the land or if aggrieved go to Court to assert any claim or in the alternative plead for the land. This led to dispute between the Erinmi family of Alaagbaa Compound Okinni and the Akoda family also of Okinni.

The Respondents attacked the Appellants’ licensee quarrying for sand on the land and thereafter caused the arrest, detention and remand of the Appellants by the Chief Magistrate Court on complaint of assault. The Respondents did not keep to the terms of the permission granted them to plant only arable crops but laying outright claim to the portion of land granted to them as tenants; claiming there exist a boundary mark by a palm tree “Laboranwa” palm tree and a rock called “Apatapete”.

?It is instructive and pertinent to note that the charge against the Appellants was preferred in the year 2008, but the agreement purporting to settle the land dispute arising in 2008 was allegedly made at the Olokinnis

palace in the year 2007.

At the trial, Plaintiffs called 9 witnesses who gave evidence before the Court, 2nd Plaintiff testified as the PW9 and Exhibits OT1, OT2, OT3, OT4, OT5, OT6 and OT7 (i-vii) were tendered by the Plaintiffs in evidence.

The Defendants on their part called 5 witnesses, 1st Defendant testified as the DW5. Defendants tendered Exhibits OT7A, OT8, OT9 and OT10 in evidence.

At the close of the case for the defence, parties filed their respective written addresses and the learned trial Court proceeded to deliver its judgment on the 27th January, 2016, dismissing the case of the Plaintiffs and entered judgment for the Defendants, granting their counter claim.

Appellants herein were dissatisfied with the Court’s decision and thus approached this Court by a notice of appeal dated and filed 02/02/2016 containing seven grounds of appeal.

The following are the relevant briefs of argument filed by parties:
1. Appellants’ brief of argument dated and filed 25/05/2016.
2. Respondents’ brief of argument dated and filed 13/10/2016.
3. Appellants’ reply brief dated and filed 01/11/2016.

While Appellants’ and the Respondents’ briefs of argument were settled by T. S. Adegboyega, Esq. and Abiodun Olaide, Esq. respectively, Appellants reply brief was settled by Adewale Afolabi, Esq.

Learned Counsel for the Appellants distilled six issues for determination. They are:
i. Whether the trial Court was right in holding that the Appellants did not establish the identity of the land in dispute (Ground one).
ii. Whether the trial Court was right in holding that the Appellants did not make out a case of customary tenancy/licensee against the Respondents and consequently concluding that the Appellants failed to prove that the Defendants are licensees who are due for forfeiture (Ground Two).
iii. Whether the trial Court was right in using the content of Exhibit “OT9” the agreement dated 29/07/2007 made at the Olokinnis’ Palace as admissible evidence to contradict the Appellants’ evidence (Ground 5).
iv. Whether the trial Court was right in holding that the Appellants did not establish title to the land in dispute (Ground 6)
?v. Whether the trial Court properly evaluated the evidence in the case made appropriate findings of facts

therefrom (Ground Three and Seven).
vi. Whether the trial Court was right in granting the Respondents’ counter claim for declaration and injunction (Ground Four).

Respondents’ Counsel on his part raised a preliminary objection contending that issues one and three of the Appellants were never raised or argued at the Court below. He referred us to pages 245-290 of the record for issues submitted by both sides in their respective written addresses before the trial Court.

Counsel argued that issues not specifically raised, joined and argued at the trial Court by parties cannot be raised for the first time on appeal without the leave of Court first sought and obtained. He cited the case of Dagaci v. Dagaci (2006) All FWLR (Pt. 2306) 786 @ 841 paras. E-G.

He urged the Court to strike out the said issues 1 and 3 of the Appellants’ brief of argument for being incompetent. Respondents’ Counsel then proceeded to submit the following three issues for determination of the appeal.
?1. Whether by preponderance of evidence the Plaintiffs/Appellants were able to prove before the trial Court that they are the ones entitled to the Statutory

Right of Occupancy over the land in dispute (Grounds 1, 3 & 6).
2. Whether by preponderance of evidence, the Plaintiffs/Appellants were able to prove before the trial Court that the Defendants/Respondents are their customary tenants or licensees over the land in dispute (Ground 2).
3. Whether the trial Judge was right in holding that the Defendants/Respondents right of occupancy on all the statutory right of occupancy on all that parcel of land being and situate at Alaadota Area, Okinni measured approximately 20.888 Hectares more particularly described in the dispute survey plan No. OS/DT/374/2010/009 of 16/06/2010 drawn by Dr. O. O. Babarinde, a Registered Surveyor (Grounds 4 & 5).

Learned Counsel for the Appellants reacted to the preliminary objection raised by the Respondents in their Reply Brief of argument. He submits that issues 1 & 3 complained against arose from grounds 1 & 5 respectively of the Grounds of Appeal contained in the Notice of Appeal. He referred to the judgment of the trial Court on pages 385-387 to assert that the Grounds of Appeal aforementioned emanated therefrom. That issues 1 & 3 were not fresh

issues which required the leave of this Court to be raised and argued. He cited the cases ofF.B.N. Plc v. A.C.B. Ltd (2006) 1 NWLR (Pt. 962) 438 @ 460-461; Odom & Ors v. P.D.P. & Ors (2015) 2 SCM 209 @ 22-223; Dagaci v. Dagaci (2006) 7 NWLR (Pt. 979) 382 @ 444. Appellants’ Counsel posited that issues 1 & 3 respectively formulated from grounds 1 & 5 are clear on the areas the Appellants are not satisfied with in the judgment of the trial Court. That Respondents’ Counsel did not complain about the said grounds 1 & 5. Learned Counsel urged us to dismiss the Respondents’ objection.

considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses hearing of the matter in order to save time”.

I have looked at issues 1 & 3 complained against by the Learned Counsel for the Respondents both issues have been indicated to emanate from grounds 1 and 5 respectively. For ease of reference, the said grounds are hereunder reproduced.
1. The learned trial Judge erred in law in holding that the Appellants did not establish the identity of the land in dispute in this suit with certainty.

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5. The learned trial Judge erred in law using the contents of Exhibit “OT9” as admissible evidence to contradict the Appellants’ evidence.

From the grounds of appeal above which are competent having arose from the decision of the trial Court, it is clear to me that issues 1 & 3 relate to the grounds 1 and 5 respectively. The judgment of the learned trial Court particularly on pages 385-387 of the record shows that issues 1 & 3 raised by the Appellants in their brief of argument are not fresh issues as argued by Counsel. Therefore, it did not require the leave of Court to be raised. I hold that the issues are valid. The preliminary objection of the Respondents fails. Accordingly, it is hereby dismissed.

On the substantive matter before the Court, I have seen that the issues raised by Counsel on both sides are similar. I feel that the issues submitted by the Learned Counsel for the Appellants will sufficiently determine the appeal. They are hereby adopted.
ISSUE ONE:
Whether the trial Court was right in holding that the Appellants did not establish the identity of the land in dispute.

?Learned Counsel for the

Appellants referred to pages 280-285 of the record to contend that the trial Court which held that the Appellants failed to ascertain precisely the identity of same, did identify in its conclusion issue of identity of the land in dispute, it considered the Appellants’ pleading and evidence and also ascribed probative value, but, went ahead to prefer the evidence of the Respondents. That the principle of proper evaluation of evidence was not followed by the Court. He referred to the following cases: Chief Abusi Green v. Dunlin Green (1987) 3 NWLR (Pt. 64) 480; Katto v. C.B.N. (1991) 9 NWLR (Pt. 214) 126.

Counsel argued that the learned trial Judge in his evaluation of evidence on the identity of the land in dispute did accept PW8, Surveyor O. E. Adeleye as a witness of truth who gave credible evidence but came to a wrong conclusion in its finding, contrary to the said evidence given by the PW8, a thorough bred professional. He submits that the trial Court’s decision has led to a miscarriage of justice and should not be allowed. He cited the following authorities: Agbabiaka v. Saibu (1998) 10 NWLR (Pt. 571) 534 @ 545; Anyanwu v. Uzowuaka (2009) 13 NWLR

(Pt. 1159) 445.

Further on the identity of the land in dispute, Appellants’ Counsel without conceding contended that even if the identity of the land in dispute is in issue as held by the trial Judge that its description would be so clear that it does not leave the Defendants in any doubt as to the specific area claimed. He referred to paragraphs 5, and 21(1) of their pleading on pages 203A-206 of the record to show that Appellants pleaded and proved by oral and documentary evidence, the identity of the disputed land. He referred to Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41 @ 53 paras. G-H.

He submitted that the land as averred in the pleaded paragraphs aforestated was particularly described in Survey Plan No. D5/0896/2010 of 14/10/2010. That in support of the Appellants’ pleadings was the oral evidence of PW5 and PW8 on the record describing the land in dispute. He referred to pages 306-309 of the record. He argued that the description of the land given by the PW8 in evidence which corroborates the Survey Plan mentioned above was not challenged by the Respondents under cross-examination.

?To further buttress his points, Counsel

referred to the evidence of PW8 and PW9 on pages 177-178 and 322-326 respectively of the record. He contended that the decision of the learned trial Judge on the Appellants’ claim of about 70 Hectares of land was wrong because the Survey Plan (Exh. OT1) prepared by the PW8 was made with high degree of precision and certainty to remove the doubt cast by the use of the word about in its pleading. That the Appellants by the use of the word ‘about’ has shown by its meaning they are not claiming 70 Hectares but something near to 70 Hectares of land. He cited Veepee Ind. Ltd v. Cocoa Ind. Ltd (2008) 13 NWLR (Pt.1105) 486 @ 509 para G.

Appellants’ Counsel posits that Exh. OT1 which approximates the Appellants’ land at 46.022 Hectares has settled the uncertainty or any lopsidedness. He is of the view that this Court should re-evaluate the evidence in this case as, according to him, the trial Court has taken an erroneous view of the evidence adduced before it. He cited Agbabiaka v. Saibu (supra). He referred to the case of Ojo v. Phillips (1993) 5 NWLR (Pt. 296) 751 @ 771 to submit that the identity of the land in dispute was known to both parties herein

because they are ad idem on the name ascribed to same in their pleadings.

Learned Counsel maintained that Exhibit OT1 (Survey Plan No: 0896/2010/LD002 of 14/10/2010), a pleaded document and the evidence thereon given by the PW1 remained uncontradicted. That the land was described with precision showing the entire area of land belonging to the Appellants and the area of 6.822 Hectares on which the Respondents were permitted to farm but which he says the Respondents were laying claim to in extension to 14.560 Hectares of the Appellants’ land. He referred to pages 384-385 of the record to show where the learned trial Judge gave credence to Exhibit OT1 as given by the PW8. Counsel further referred to page 117 of the record in disagreement with Exhibit OT8 which he argued does not reflect the boundary features as presented by the Respondents. That the evidence of DW2 was not considered by the Court but erroneously acted on it. He cited Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.

?It is submission of Learned Counsel that the trial Court having believed and accepted the credible evidence of PWB showing unequivocally the identity of the land in

dispute, ought not to have departed from it which led to a wrong conclusion. That his finding would have been different. He referred to Fulani v. Idi (1990) 5 NWLR (Pt. 150) 311 @ 319; Sogunle & Ors v. Akerele & Ors (1967) NWLR 58 @ 60; Ige v. Adegbola (1998) 10 NWLR (Pt. 571) 651 @ 659 para A-B.

He argued that the trial Court’s position on the issue of identity of the land in dispute was perverse and occasioned a miscarriage of justice. He cited Agbabiaka v. Saibu (supra). He urged us to resolve this issue for the Appellants.

In response to this issue under their issue one, Respondents’ Counsel referred to the case of Momoh v. Umoru (2011) 6 SCM 99 @ 151-153 to submit that the Plaintiffs who seek title to the land in dispute are mandatorily required to prove such title and give precise description of the land in dispute. He contended that the Appellants’ pleadings and the evidence of PW8 relating to the size of the land in dispute upon which they (Plaintiffs/Appellants) sought declaration are in conflict. He referred to the Plaintiffs’ pleadings dated 07/11/2013 wherein the disputed land was described as measuring “about 70

Hectares” as described in the dispute Survey No: D5/0895/2010/LD002 of 14/10/2010 and the description given by the PW8 under paragraphs 3 & 5 of his written deposition on pages 320-322 of the record. Counsel also referred to Exhibit OT1; he submitted that the 2nd Plaintiff who testified before the Court did not give the size of the land in dispute in his evidence. He argued that the Court refused to grant declaration sought by the Appellants because their description of the size of the land in question lacked precision and certainty. That evidence which is at variance with pleadings go to no issue. He referred to Momoh v. Umoru (supra).

It was also Learned Counsel’s submission that both parties herein placed reliance on their respective dispute Survey Plans which are Exhibits OT1 and OT8 respectively, in proof of their boundaries of the land in dispute. That both plans agree on the boundaries except in one location where according to him, the Appellants put Gunugun River as one of the boundaries while the Respondents on their part put Laboranwa Palm tree and a flat Rock (Apatapete).

?Respondents’ Counsel submitted that Gunugun River is the

Appellants’ northern boundaries with Oba-Oke land, part of which is not in dispute and thus, he says it cannot be one of the boundaries of the land in dispute. He posits that Appellants’ witnesses described in their evidence in chief and under cross examination a land different from the land in dispute. He referred to the evidence in chief and under cross-examination of PW1 and submitted that his evidence is vague, inconsistent and unreliable. On the evidence in chief of the PW2, he submits that his evidence was misplaced because it seeks to describe his own father’s land and not the land in dispute. He referred to paragraphs 2, 3, 4, 7, 8, 9, 10 and 11 of the witness deposition on oath.

On PW3, Learned Counsel reproduced paragraphs 1-8 of his evidence in chief as contained on page 175 of the record to argue that witness failed to refer to the land in dispute and instead described his own land with boundaries different from those of the land in dispute. That this witness confirmed in evidence that he could only describe his own land. Counsel submits that the entire evidence of the PW3 was hearsay and should be discountenanced.

Learned Counsel

proceeded to argue on the evidence of the PW4, that it supported the case of the Respondents under cross examination. That PW4’s evidence under cross-examination contradicted his evidence in chief. He referred to paragraphs 4, 6 and 7 of his statement on oath and submits that his evidence is unreliable.

On the evidence in chief of PW5, Counsel contended that it was not in compliance with Section 117 (1) (b) of the Evidence Act, 2011 and therefore defective. That the statement of the PW5 started with paragraph 1 without the opening particulars. He urged us to expunge same including the witness’ evidence under cross-examination arising from it, for being incompetent. He referred to page 19 & 20 of the record.

Learned Counsel on the evidence of PW6 contended that his evidence was not frontloaded and that PW6, just like the other witnesses could not describe the boundaries of the land in dispute.

?Respondents’ Counsel’s view on PW7 is that he was called to discredit Exhibit OT9 (an agreement on the settlement of boundary dispute between the parties dated 29th July, 2007). That PW7 claimed to be present during the making of Exhibit OT9

but does not know the land in dispute. That he is not a witness of truth. Learned Counsel proceeded to the evidence of PW8 where he views paragraphs 3 and 5 of the witness’ evidence in chief relating to the measurement of the land in dispute to be contradictory. He referred to PW8’s statement on oath on pages 177-178 of the record.

The next is the evidence of PW9 and the contention of Counsel is that, even he, as the 2nd Appellant could not with precision, describe the boundaries of the disputed land. His reasons are as follows:
a. The fourth side as shown even in their own Dispute Survey Plan (i.e. Akogun family land or Oyewole family land) was not contained in his description in chief.
b. Putting Gunugun River as one of the boundaries of the land in dispute is a clear contradiction of Exhibit OT1 as in Exhibit OT1, Gunugun River only separate the Plaintiffs’ undisputed land from Oba-Oke farmland.
c. The evidence in chief of PW9 also failed to mention Alabaadi farmland which is a constant boundary family (sic) to the land in dispute as indicated on both the Appellants’ Dispute Survey Plan (Exhibit OT1) and the Defendants’ Dispute Survey

Plan (Exhibit OT8).

He referred to paragraph 11 of the PW9’s evidence in Chief, that, Respondents denied the facts therein in paragraphs 50 & 51 of their pleadings. That neither the Appellants nor their witnesses farmed or possessed the land in dispute which informed their inability to describe it with accuracy.

?Respondents’ Counsel continued in his argument that PW9 denied the existence of the meeting that led to the emergence of Exhibit OT9. He referred to paragraph 3 of PW9’s statement on oath. That by paragraph 4 of the said statement on oath made 07/11/2013, PW9’s evidence amounted to a hearsay because he stated what transpired at Olokinni’s palace while he was in detention. He referred the Court to pages 298-309 and 314-327 of the record. He submits that the witnesses who were called tenants of the Plaintiffs/Appellants could not describe the land in dispute in line with their pleadings and their Survey Plan. It was further submitted that the Plaintiffs in order to succeed in their claim for a declaration of title must in addition to giving accurate and precise size of the land in dispute give also a vivid description of same, failure

of which their claim must fail. He supported his argument with the cases of Ukaegbu v. Nwololo (2009) 1 SCM 90 @ 117-118; Momoh v. Umoru (supra).

Counsel urged us to hold that the Plaintiffs/Appellants failed in their description of the land in dispute. He submits that though the trial Court did describe the PW8 as a seasoned professional, it is clear that the evidence he gave relating to the description of the land is at variance with what the Plaintiffs/Appellants are claiming by the pleadings.

Counsel urged us to resolve this issue in favour of the Respondents.

Learned Counsel for the Appellants in their Appellants’ Reply Brief contended that the tenancy status of the Respondents, just like that of the PW1, PW2, PW3 and PW4 as claimed by the Appellants remain unchallenged and uncontroverted and which in his view constitute admission. He cited Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 in an effort to establish that facts admitted need no further proof. He referred to Section 66 of the Evidence Act, 2011 to argue that evidence of oral traditional history led by a witness in respect of title to or interest in family or

communal land is exempted from the hearsay rule. He cited the following cases: Popoola v. Adeyemo (1992) NWLR (Pt. 257); Ikenye Dike & Ors v. Obi Nzeka 11 & Ors (1986) LPELR-945 (SC) 24-25.

On the PW5’s statement on oath which was argued by Counsel for the Respondents to be defective for not complying with Section 117(1) (b) of the Evidence Act, 2011, Appellants’ Counsel posited that the said evidence in chief of PW5 was adopted before the Court on 30/01/2013 and therefore the objection was belated. That objection was not raised by Counsel on the competence of PW5 himself and being a fresh point, no leave was sought and obtained to argue it. He also pointed out that witness’ statement on oath translates to evidence on adoption by the deponent and that such adoption corrects any defect contained therein. His view is that, statement on oath of a witness is unlike affidavit evidence which is strictly governed by Section 117 (1) (b) of the Evidence Act. He citedThaoma E. Udeagha v. Matthew Omegara & Ors (2010) LPELR-3856 CA 18 paras. E-F; Kalu Igu Iduma v. Prince Arua Arunsi & Ors (2010) LPELR-9133 CA 31 paras B-E.

On the evidence

of PW8 argued by the Respondents’ Counsel, Counsel for the Appellants contended that the Respondents failed to file a Respondents’ notice as required by law. That they cannot complain against the findings of the trial Court on the evidence of PW8.

Also, Counsel contended on the evidence of PW9 on Exhibit ‘OT9’ that, though he was incompetent to testify on what was alleged to have occurred relating to the making of the said Exhibit while in detention, PW9 who is the 2nd Appellant is recognized by law to be competent witness. He referred to Section 175 of the Evidence Act, 2011 and the case of Umeojiako & Anor v. Ezenamuo & Ors (1990) 1 NWLR (Pt. 126) 253 @ 267.

Learned Counsel submitted that Exhibit ‘OT1′ is not at variance with para. 21 of the Appellants’ pleadings dated 7/11/2013.

RESOLUTION
The claim of the Appellants on this issue is that they have by oral and documentary evidence, proved the identity of the land in dispute. By paragraph 21 of their pleadings contained on pages 203-206 of the records, the Appellants claimed as follows:
(1) A declaration that the Plaintiffs are entitled to a statutory right of

occupancy on all that parcel of land lying, being and situate at Alaadota Area, Okinni measuring about 70 Hectares and more particularly described in Dispute Survey Plan No. D5/0896/2010/LD002 of 14/10/2010 prepared by O. E. Adeleye, Registered Surveyor.

The Survey Plan mentioned in the above pleading was tendered in evidence and marked as Exh. ‘OT1′ and its maker testified for the Appellants as PW8. In his written deposition which he adopted before the trial Court as his evidence in chief, PW8 gave the dimension of the land in question in paragraphs 3 and 5 as follows:
(3) “The entire land of the Plaintiffs which I surveyed is verged green except in the Northern side where it is bounded by Gunugun River. The entire area measuring approximately 46.022 Hectares is claimed by the Plaintiffs”.
(5) “The area in dispute is measuring approximately 14.560 Hectares which falls within the area verged green. The area in which the Defendants were permitted by the Plaintiffs’ families to plant arable crops measures approximately 6.822 Hectares and is verged brown—–“.

It is to be noted here that the Respondents who did counter claim against the

Appellants also tendered their Survey Plan in evidence which was accepted by the Court and marked as Exhibit OT8. DW2 who is the maker of Exhibit OT8 described in his evidence in chief and which he adopted before the Court, the features he saw indicating the boundaries between the parties herein which includes a palm tree called “Laboranwa” and a flat rock. Witness gave the size of the land claimed by the Respondents to be approximately 20.888 Hectares. The above description is in tandem with paragraphs 10 and 11 of the Defendants’ pleadings (page 226) on the record and the evidence of the other defence witnesses. I have looked at Exhibits OT1 and OT8 and I am left without doubt that the identity of the land in dispute is known to both parties. See Nwokidu v. Okanu (2010) 1 SCNJ 167; Manus Ukaegbu & Ors v. Mark Nwololo (2009) 1 NSCR 21. In their arguments contained in their brief, Counsel for the Respondents admitted that both parties by their respective Survey Plans mentioned earlier, agree on the boundaries of the land in dispute except in one location where Appellants put Gunugun River as one of their boundaries, while the Respondents put Laboranwa Palm

tree and Apatapete (a flat rock). These pieces of evidence support the description given by both parties in their pleadings before the Court. See paragraph 5 of the Appellants’ Amended Statement of Claim and the Counter Claim of the Defendants on page 231 of the record.

It is clear to me from the evidence on record, that, the evidence of PW8 (a star witness), relating to the description of the size of the land claimed by the Appellants is at variance with their pleadings. The learned trial Court in appreciating the evidence of the Appellants held on page 381 of the record as follows:
“In my view I found that in the Amended Statement of claim, it is 70 hectares that Plaintiffs are claiming. In the written deposition of surveyor O. E. Adeleye, the PW8 to him the entire area measuring approximately 46.022 hectares is claimed by the Plaintiffs”.

?The learned trial Judge thus held on page 385 of the record to wit:

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“The lopsidedness in the claims of the Plaintiffs by hectares shows uncertainty”.

I agree with the above position because consistency in the description of the portion or size of the land claimed by a party is material. It was held per I. F. Ogbuagu, JSC in Osuji v. Ekeocha(2009) 7 SCNJ 248 that “Parties are bound by the pleadings and when once the evidence differs materially from the averment(s) in the pleadings the claim must be dismissed”.

The Respondents/Counter Claimants on their part gave the description of the size of the land in dispute which they claim to be measuring 20.888 hectares in their pleadings (pages 225-232) contained on the record. I have gone through the evidence before the Court and I have seen that the averments describing the size of the land as mentioned above was supported by their evidence in chief and a documentary evidence, Exhibit “OT8”.

It was held in Ukaegbu v. Nwokolo (supra) that “A Plaintiff failing to prove the boundaries of the land he asserts to be in dispute and also if a Plaintiff did not properly and satisfactorily describe the land in dispute and if the description contradicts the plan he

fails in the declaration of title that he seeks. This is also because an accurate plan should and will defeat a Plaintiff’s claim”.
Parties herein must succeed on the strength of their case. It is my view and I so hold that the Plaintiffs have failed in their first hurdle in a claim such as in the instant case, which is to show precisely a defined and identifiable area to which his claim relates. See Ukaegbu v. Nwokolo (supra).

I resolve this issue against the Appellants and in favour of the counter Claimants.
?
ISSUE TWO:
Whether the trial Court was right in holding that the Appellants did not make out a case of customary tenancy/licensee against the Respondents and consequently concluding that the Appellants failed to prove that the Defendants are licensees who are due for forfeiture.

On this issue, the Learned Counsel for the Appellants referred to the Appellants’ pleadings paragraphs 10, 11, 12 and 13 contained on page 204 of the record, contending that the finding of the learned trial Court on page 379-380 of the record that Appellants did not make out a case of customary tenancy against the Respondents was perverse.

That the finding was contrary to the pleadings of parties. Counsel referred to paragraphs 49, 50, 51, 52 and 53 of the Respondents’ pleadings on page 230 of the record which he says were in response to the paragraphs of the Appellants’ pleadings earlier cited. He argued that the Appellants’ case relating to customary tenancy/licensee was clear to the extent that issues were joined with the Respondents thereon. That the evidence in chief of the PW9 supports the case of the Appellants. He referred to pages 324-327 of the record to assert that the evidence on the issue of the Respondents been licensees/customary tenants of the Appellants was unchallenged and uncontroverted under cross examination. He cited Roba Inv. Ltd v. Arewa Metal Containers Ltd. (2010) LPELR-4900 CA.

Counsel submits that it is not proper for a Defendant not to cross examine a Plaintiff’s witness on material points and to call evidence on same. He cited the following authorities: Oforlete v. State (2000) 12 NWLR (Pt. 681) 415 @ 436 paras. E; Agbonifo v. Aiwereoba (2003) 8 NWLR (Pt. 823) 583.

?Learned Counsel again referred to page 378 of the record where he says the trial Court

identified the issue of customary tenancy/licensee of the Respondents on the Appellants’ land. He submits that trial Court had the duty to consider the pleadings in line with the evidence before it in its evaluation of evidence. That averments in pleadings are to be read as a whole and not in Isolation as did the trial Court paragraph 11 of the Appellants’ pleadings. He cited Alaya v. Isaac (2012) LPELR-9301 CA.

Learned Counsel continued in his argument that Respondents who are in possession of the land in dispute were granted the land by the Appellants to plant arable crops only which according to him does not change their status of being customary tenants/licensees of the Appellants. That a tenant’s possession cannot be adverse to the ownership of his landlord and that title by prescription is unknown to the Yoruba customary law.

He maintained the view that the Respondent’s occupation of the land in dispute, and in particular, the portion described in Exhibit OT1 cannot ripen into ownership however long. He referred to Adedeji v. Oloso (2007) 5 NWLR (Pt. 1026) 133 @ 173; Obawole v. Coker (1994) 5 NWLR (Pt. 345) 416; Olugbode v. Sangodeyi

(1996) 4 NWLR (Pt. 444) 500 @ 513 para. C; Dadzie & Ors v. Kojo & Anor. (1949) 60 WACA 139 @ 40.

It was also the contention of Counsel that the uncontroverted evidence of PW9 who is connected with the land in dispute, relating to the claim of the Appellants that Respondents are their customary tenants/licensees is supported by pleading. That the trial Court does not come to a decision by the quantity but by the quality or probative value of the testimony of the witnesses. He cited Mini lodge Ltd v. Ngei (2009) 7 NWLR (Pt. 1173) 254 @ 282; Umeojiako & Anor v. Ezenamuo & Ors (1990) 1 NWLR (Pt. 126) 253 @ 267.

That, by the provision of Sec. 175 of the Evidence Act, 2011 the evidence of PW9, a competent witness require no corroboration. He however added that the evidence of PW9 was corroborated by that of the PW5. He contended that PW5 who is the grandchild of Oba Kinimofisomo testified that his grandfather never gave land to the Respondents’ father; That admission by the PW1 that it was Oba Kinimofisomo who shared the land was unfavourable to the Respondents. He cited Orji v. DTM (Nig.) Ltd (2009) 18 NWLR (Pt. 1173) 467 @ 500. He

also cited the case of Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362 @ 381-382. Counsel argued that Respondents are estopped from denying the Appellants’ overlordship over the disputed land and are thus guilty of gross misconduct. That this issue once settled, whether or not Respondents paid Ishakole in respect of the land in dispute is not important. He urged us to resolve this issue in favour of the Appellants.

Learned Counsel for the Respondents reacted to this issue in their issue number two. He submits that by the Appellants’ pleadings paragraphs 11, 12, 13, 14 and 21 (2) and their claim for forfeiture, they placed the Respondents in possession of the land in dispute. That the Respondents denied by their pleadings the averments contained in the Appellants’ Statement of Claim stated above. Learned Respondents’ Counsel is of the contention that Plaintiffs/Appellants herein who prayed the Court for forfeiture have the evidential burden of proving that the Respondents herein are actually tenants/licensees on the land in dispute. He referred to Section 131 of the Evidence Act, 2011 and the case of Dagaci v. Dagaci (supra) in support of his argument. He

submitted that possession, though does not translate into ownership, there is a strong presumption that the party in possession of a landed property is either the owner of same or a tenant of the overlord. He cited Dada v. Bankole (2008) 3 SCM 1 @ 25-26. Counsel argued on the importance of payment of tribute (Ishakole) by the customary tenant to the overlord. That it is a vital feature of customary tenancy. He relied on the case of Dashi v. Satlong (2009) 1 SCM 17 @ 27.

It was further contended by Counsel that once Plaintiffs’ pleadings places the Defendant in possession of the land in dispute, that the standard of proof that they are tenants or licensees and liable to feature is high and difficult. He referred to Bello Salami v. Adetoro Lawal (2008) All FWLR (Pt. 438) 200 @ 222-224.

He submits that the learned trial Court was right in refusing to grant the Plaintiffs/Appellants’ claims because there was no evidence proffered by them in support of their claims outside their statement on oath and pleadings which were equally denied by the Respondents.

?Counsel urged us to hold that Appellants failed to prove that Respondents are their

tenants/licensees in respect of the land in dispute. He stressed that parties are bound by their pleadings and that Appellants have failed to prove their case.
He urged us to resolve this issue for the Respondents.

Learned Counsel for the Appellants responded in the Appellants’ Reply Brief to the Respondents’ assertion on the lack of evidence by the Appellants in support of their claim that Respondents were indeed their tenants or licensees on the land in dispute. That Counsel for the Respondents by para. 6.9 of their brief admitted that Appellants’ witnesses were called as tenants on the land in dispute. That the submission of Counsel amounted to admission binding the Respondents in law. He cited Omisore v. Aregbesola (supra); Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 @ 558 para. B.

He submits that Counsel for the Respondents cannot approbate and reprobate at the same time. He referred to Oladapo v. B.O.N. Ltd (2001) 1 NWLR (Pt. 694) 255 @ 269 para D.

RESOLUTION
?As established in a plethora of decided authorities, a Plaintiff whose existence on a land he acquired either through grant, settlement, sale or conquest as

the case may be if challenged, there are five methods or ways through which he can prove his title. They are:
1. By traditional evidence.
2. By production of document of title duly authenticated and executed.
3. By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of time ownership.
4. By acts of long possession and enjoyment.
5. By proof of possession connected or adjacent land in circumstance tendering it probable that the owner of such land connected or adjacent land would in addition, be the owner of the land in dispute.
See Idundun v. Okumagba (1976) 9-10 SC 27; Nruamah v. Ebuzoeme (2013) 1 SCNJ 128; Nwokidu v. Okanu (supra).
The law has made it clear that it is sufficient if the Plaintiff is able to prove one of the five ways to establish his claim for declaration of title. See Nruamah v. Ebuzoeme (supra); Peter Ojoh v. Owuala Kamalu & 3 Ors (2005) 12 SCM 332; (2005) 12 SCNJ 236 @ 261; (2005) 18 NWLR (Pt. 958) 523 @ 574-575.

?As can be gleaned from the records, both parties by their pleadings relied on traditional history in proving their title

to the land in dispute.

From the pleadings of both parties herein, they are ad idem on the original founder of the whole expanse of Okinni land, Orunmoyeniyi, who was the first settler on the land and who became the first Oolokinni of Okinni land. He had seven children according to both sides, one of who is Oba Kinimofisomo.

In a claim for declaration of title like in all civil matters, the onus lies on the Plaintiff to prove his case. In the instant case however, the Respondents filed a counter claim in respect of the land in dispute. Both parties herein must succeed on the strength of their case which will, as a matter of law, be decided on the preponderance of evidence or on the balance of probabilities. See Section 134 of the Evidence Act, 2011. In Nwokidu v. Okanu (supra), it was held that “In order to be entitled to a declaration, a person must show the existence of a legal right, subsisting or in the future, and that the right is contested. In other words, what would entitle a Plaintiff to a declaration is a claim which a Court is prepared to recognize and if validly made, it is prepared to give legal consequence. A declaratory action is

discretional and it is exercised upon the trial of a suit”. See also Adigun v. A-G, Oyo State (1987) 1 NWLR (Pt. 53) 678; Dantata v. Mohammed (2000) 7 NWLR (Pt. 664) 176.

The issue in contention is whether indeed the counter Claimants are customary tenants/licensees of the Appellants on the land in dispute. By their pleadings, the Plaintiffs/Appellants aver that the land in dispute was granted to their ancestor, Erinmi by Oba Kinnimofisomo about 200 years ago and that the said land was inherited by Fageebo and his descendants who maintained undisputed possession and exercised various acts of ownership on the land. That it was Fageebo who permitted the Claimants’ ancestor, Akoda to plant arable crops on same. Under paragraph 11 of their pleadings on pages 203-206 of the record, Appellants aver that the Defendants were chased out of the land in dispute after they started laying ownership claim to the disputed land.

?On their part, the Respondents averred in their pleadings how the founder of the land in dispute Orunmoyeniyi as the first Olokinni of Okinni allocated land to his seven children. This averment is reflected in Exh. “OT10”. The

land in question was given to their great grandfather, Ifayemi Ajala (Akoda) by Abiodun, one of the children of Orunmoyemiji. That Abiodun (now Gbodokije ruling house) also gave another portion of land to the Plaintiffs’ great grandfather and that they share boundary at a flat rock called Apatapete, close to a historic palm tree called “Laborawa”. See the Defendants’ Amended Statement of Defence on pages 225-232 of the record.

?I have gone through the record and I have observed that the Appellants neither properly pleaded nor did they call satisfactory evidence to prove that the Respondents are their tenants on the land in dispute. They have not been able to show the Court with credible and reliable evidence that they are the true owners of the land in dispute which has always been in the exclusive possession and enjoyment of the Respondents. What is clear to me here is the issue of boundary which evidence shows there has been settlement of same between the parties on several occasions. This was the purport of Exhibit “OT9”, an agreement made between the parties for the purpose of settling their boundary dispute. These pieces of evidence were evaluated

and carefully considered by the learned trial Court. See pages 370-372 of the records.

The duty of appraising of evidence given at a trial pre-eminently lies with the trial Court; the Appellate Court should not ordinarily disturb the findings of facts made by the trial Court, particularly if such findings and conclusions reached are supported by credible evidence. See Achilihu v. Anyatonwu (2013) 1 SCNJ 332.

On the preponderance of evidence, the Plaintiffs/Appellants have not satisfactorily proved their case that the Respondents are their tenants/licensees on the land in dispute; they have not proved before the Court that they were ever in possession and in charge of the land in dispute or that they indeed chased the counter claimants out of the land in dispute. I agree with the position of the learned trial Court on page 385 of the record where it held that “—- they have also failed to prove that the Defendants are licensees who are due for forfeiture”.

I resolve this issue for the Respondents and against the Appellants.

ISSUE THREE
?Whether the trial Court was right in using the content of Exhibit “OT9”, the agreement

dated 29/7/2007 made at Olokinni’s Palace as admissible evidence to contradict the Appellants’ evidence.
ISSUE FOUR.
Whether the trial Court was right in holding that the Appellants did not establish title to the land in dispute.

The above two issues distilled from grounds 5 and 6 of the grounds of appeal were argued together by the Learned Counsel for the Appellants. He contended that the learned trial Court was misled into holding that the Appellants failed to establish title to the land in dispute. That the pleadings and evidence on record of the Appellants have shown that they have proved title to the disputed property.

?Counsel referred to the pleadings of the Appellants on pages 203A-206 of the record to establish how the land in dispute was granted to the Appellants’ forefathers (Erinni) by Oba Kinimofisomo about 200 years ago and how Appellants exercised various acts of possession on the land. That Appellants led oral evidence of traditional history of the grant and confirmed with certainty in Exhibit OT1 the extent and area of the land in dispute. He argued that by Exhibit OT1, the land in dispute was identified with

certainty devoid of any lopsidedness as held by the trial Court. That it was sufficient evidence even without been corroborated. He submits that it was quality of evidence given by witnesses and not quantity of witnesses that matters in proving a case. Counsel referred to Iyere v. Bendel Feed and Flour Mills Ltd (2008) NWLR (Pt. 1119) 300 @ 344 paras. G-H, C-D.

He continued that the averment as to the Appellants’ root of title which was traced to Oba Kinimofiosomo who according to them founded Okinni about 200 years ago was supported by the evidence of PW5 on the record. That the admission of DW1 under cross-examination of the evidence of PW5 was caught by the provision of Section 23 of the Evidence Act, 2011. That the evidence of DW1 strengthened the Appellants’ case on root of title. He cited Orji v. D.T.M. supra; Nwofor v. Nwosu(1992) 9 NWLR (Pt. 264) 229 @ 240-241; Aikhionbare v. Omoregie (1976) 12 SC 11 @ 27.

To further buttress his point on the relevance of Exhibit OT1 and the evidence of PW8 which according to Counsel defined the boundaries and location of the area claimed, he referred to the cases of Okere v. Nwoko (1991) 8 NWLR (Pt.

290) 317 @ 331; Sogunle & Ors v. Akerele (1967) NWLR 58 @ 60.

Learned Counsel proceeded to argue on Exhibit ‘OT9’ that, it was not supported by the minutes of the meeting of the traditional Olokinni Palace to enable Court give it evidential or probative value. That same was inadmissible. He cited Suberu v. State (2010) 8 NWLR (Pt. 1197) 587-586 @ 604 paras C-E; Buhari v. I.N.E.C. (2008) 18 NWLR (Pt. 1120) 246 @ 368 paras. C-F.

He is of the view that Exhibit OT9 is inclusive on the dispute as to qualify as customary Arbitration which could bind the parties. That the said Exhibit is tainted with fraud. He referred to Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412 @ 448-449.

Counsel argued that the trial Court failed to see the conflicts in Exhibits OT8 and OT9 and erroneously held that the Appellants failed in their proof of title to the land in dispute. That the trial Court’s conclusion was influenced by the contents of Exhibit OT9 which in his view are inadmissible. That the Court ignored the cogent and positive evidence led by the Appellants. He cited Adebayo v. Shogo (2005) 7 NWLR (Pt. 923) 467 @ 480.

It was also Counsel’s

view that “Apatapete” is a natural feature which had always been in existence and obviously not mentioned in Exhibit ‘OT9′. He argued that Exhibit OT9 was merely tendered in evidence to show the intervention of the Olokinni’s palace in the matter. Citing the cases of Ishola v. U.B.N. Ltd (2005) 6 NWLR (Pt. 922) 422 @ 439 and Yadis Ltd v. G.N.I.C. Ltd (2007) 14 NWLR (Pt. 1055) 504 @ 610, Counsel stated that the Court can only use a document properly admitted before it for the purpose for which it was admitted. That the said Exh. OT9 tendered to establish that there was settlement of boundary dispute at the Olokinni palace is not cogent and sufficient enough to defeat the Appellants’ title.
That the trial Court’s conclusion was perverse and should be set aside. He cited Lagga v. Sarhuna (2008) 16 NWLR (Pt. 114) 427 @ 474 paras E-F.

He urged the Court to resolve these issues in favour of the Appellants.

In response to these issues, Respondents’ Counsel in their issue three began by citing the case of Dagaci v. Dagaci (supra) to contend that the Respondents herein having counter claimed as Defendants before the lower Court, have the burden

of proving their case just like the Plaintiffs/Appellants. He referred to the Respondents’ counter-claim on page 231 of the record to submit that the evidence in chief of the 1st Defendant who testified as the DW5, that of DW2 and Exhibit “OT8”, (survey plan) all support the Defendants/Respondents’ pleadings that the statement on oath of the above witnesses are consistent with both their pleadings and the evidence in support relating to the size and description of the portion of the land counter claimed.

That the size of the land claimed by the Respondents which is 20.888 Hectares in their pleadings was reflected in Exhibit ‘OT8′ and their evidence in chief, unlike the Appellants who are claiming 70 Hectares in their pleadings which is at variance with their evidence stating 46.022 and 14.560 Hectares. He cited the case of Daodu v. N.N.P.C. (1998) SCNJ 95 @ 106 and Section 134 of the Evidence Act, 2011 that, civil cases are fought on the balance of probabilities and the preponderance of evidence.

?Learned Counsel argued that the evidence of the DW1 on page 328 of the record does not in any way support the case of the Plaintiffs as argued by

their Counsel. That the real issue is about who owns the land in dispute and not who shared it. That the evidence of DW1 both in chief and under cross-examination supports the Respondents’ case. He referred to pages 40, 41 and 327 of the record.

Counsel submitted that the witness, DW1 was not even cross examined on the evidence he gave in chief supporting the counter claim of the Respondents. That his evidence remains admitted having not been challenged. He referred to Owners of M/V. Gongola Hope v. Smurfit cases (Nig.) Ltd (2007) All FWLR (Pt. 333) 1005 @ 1026 paras. C-H.

On the Appellants’ contention on Exhibit OT9 (extract from the minutes of meeting held at the Okinni palace), Counsel says Exh. “OT9” was tendered by the DW3 and was signed by the 1st Appellant and his witness, 1st Respondent and his witness, heads of the Ruling Houses and the DW3 who is the incumbent king of Okinni land (Oba Akadiri Ookanola). That it was admitted by the 1st Appellant that Exh. OT9 was signed so as to effect the release of the 2nd Appellant who was detained. That the issue of fact of jurat was not canvassed at the Court below.

?Still on Exhibit “OT9”,

Learned Respondents’ Counsel submits that it was first tendered and admitted as Exhibit OT5 and the original was afterwords tendered as Exhibit ‘OT9′ without objection. That objection having not been raised during the tendering of the document cannot be entertained on appeal. He referred to Archibong v. State (2006) 8-9 SCM 43 @ 62-63. He urged us to discountenance Counsel’s submissions on Exhibit “OT9”.

Counsel then referred to the cases of Agboola v. U.B.A. (2011) 4 SCM 31 @ 46 and Idundun v. Okumagba for the five ways by which a claim for declaration of title to land may be proved. He submits that the Respondents herein have by traditional evidence and exclusive possession of the land in dispute proved that they are entitled to succeed in their counter claim before the Court.

?Counsel further submitted that the Plaintiffs/Appellants were not consistent with the size of the land to which they lay claim i.e. 70 Hectares, 46.022 and 14.560 Hectares. That Defendants/Respondents on their part were consistent on the size of the land they claim in their pleadings, evidence in support and the dispute Survey Plan which reads 20.888 Hectares. He

argued that on the preponderance of evidence and the balance of probability, the counter claimants have proved that they are entitled to be granted statutory right of occupancy over the parcel of land measuring approximately 20.888 Hectares particularly described in Survey Plan No. OS/0T/374/2010/009 of 16/06/2010 (Exh. OT8). He urged us to hold that the decision of the learned trial Judge was proper. He also urged this Court to resolve these issues for the Respondents/counter claimants, dismiss the Appellants’ appeal and affirm the judgment of the lower Court.

Appellants’ Counsel responded in his Reply Brief on the evidence of DW2 who was not cross-examined; that, admission in law must be unequivocal. He cited Orji v. DTM Nig. Ltd (supra). Counsel contended that the evidence of DW2 on boundary of the land in dispute contradicts Exhibit “OT9” and, that his evidence in chief was conflicting. That witness admitted under cross-examination contrary to the case of the Respondents that it was Kinimofisomo who shared the land. He referred to Agbi v. Ogbe (2006) 11 NWLR (Pt. 990) 65, (2006) LPELR-240 SC 31 para. E-G.

On the issue of Exh. “OT9” not

containing illiteracy jurat, Counsel submits that it was not raised anywhere in the Appellants’ brief. That same was tendered and admitted in evidence without objection. Counsel referred to the case of Buhari v. I.N.E.C. (2008) 19 NWLR (Pt. 121) 120 246 @ 414. He urged the Court to allow this appeal and set aside the trial Court’s decision.

RESOLUTION
On issue three above which was distilled from ground 5 of the grounds of appeal, the law is trite that “any party relying on arbitration under customary law should clearly plead and convincingly prove that those who sat over his dispute were, under the customary law alleged competent to adjudicate” see the case of Nruamah v. Ebuzoeme (supra).

?Learned Counsel for the Appellants are contending that Exhibit OT9 is not accompanied with the minutes of the meeting of 29/7/2007, that it is inconclusive to qualify as a customary arbitration as to bind the parties. The facts surrounding Exhibit “OT9” was clearly pleaded in paragraphs 38, 39, 40 and 41 of the Amended Statement of Defence of the Defendants/Counter Claimants. The parties who signed Exhibit “OT9” was pleaded by the Defendants on paragraph

40 to wit:
“40 – The 1st Plaintiff, the 1st Defendant, leader of the royal families, and Oba Akadri Ookanola, Gbodekije II, the Olokinni of Okinni signed the said agreement.
The boundary dispute settlement agreement dated 29th July, 2007 is hereby pleaded and shall be relied upon by the Defendants during the hearing of this suit”.

Defendants’ witness called evidence in support of their pleading and in that regard. The learned trial Court held on Exhibit “OT9” on page 396 of the record as follows:-
“I have no reason to disbelieve Defendants’ witnesses that there was boundary dispute during the reign of Oba Yusuf Oyewumi and the present Oba Akadiri Ookanola. I also believe that the boundaries were fixed as claimed by the Defendants”.

I wish to note here that documents tendered and admitted in evidence speak for themselves. Exh. “OT9” admitted in evidence without objection is supported by the evidence of DW3 who is the present Oolokinni of Okinni land and also a signatory to the said document. I believe that the document is genuine and having been supported by evidence, the findings of the learned trial Court thereon is in

order.

Issue four above was formulated from ground six of the grounds of appeal. I have held earlier in this case that on the preponderance of evidence, the Plaintiffs have not been able to prove that the land in dispute was vested in them or that they had been in or were entitled to undisputed possession of the land in dispute against the Defendants who pleaded and supported with evidence that they had been in exclusive possession and have been exercising various acts of ownership on the land in dispute, the boundary of which was settled by Exhibit “OT9”. This issue in my view is not far from issue three above which is hinged on boundary dispute between the parties. Boundary dispute is the same thing in law as dispute over title. The Apex Court decided in Tanko v. Echendu (2011) 18 NWLR (Pt. 1224) 253 @ 255 SC that “Boundary dispute is one and the same thing as a dispute over title or ownership of land in dispute. There is no distinction”. It was held per Tabai, JSC at pages 269-270 that: “Even if it is accepted that it is boundary dispute it is, in my considered opinion, one and the same thing as a dispute over title or ownership of the land in

dispute. I am unable to find the distinction which the Court below tried to make —-“.

It is my view, on the basis of the evidence on record and the authorities cited that the Plaintiffs/Appellants failed to establish title to the land in dispute as claimed by them. The position of the learned trial Court on page 385 of the record cannot be faulted.

Thus, issues three and four are resolved in favour of the Defendants/Counter Claimants and against the Respondents.

ISSUE FIVE
Whether the trial Court properly evaluate the evidence on the case and make appropriate findings of facts therefrom.

?The contention of the Learned Counsel for the Appellants on this issue is that the trial Court reached a decision without properly evaluating the evidence proffered on the issues before it. He is of the view that the learned trial Judge merely believed the evidence given by the witnesses and failed in his duty to evaluate same. That the Court below only undertook a summary and restatement of the pleading and evidence without more before reaching its decision against the Appellants. Counsel submits that the trial Court fell into error

which the law frown at. He referred to the following cases. Samuel Ola Oladehin v. Continental ile Mills Ltd (1978) ANLR 31 @ 38; Board of Customs & Excise v. Barau (1982) LPELR-786 SC; NSCC 358 @ 388; Anyanwu v. Uzowuaka (supra); Oyekola v. Ajibade (2004) 17 NWLR (Pt. 902) 356 @ 379; Oyekola v. Aina (2001) 17 NWLR (Pt. 642) 532 @ 549; Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 @ 219 and Mini Lodge Ltd v. Ngei (2009) 7 NWLR (Pt. 1173) 207.

Learned Counsel urged the Court to resolve the case in favour of the Appellants.

RESOLUTION
The law is trite that “the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the Court of trial which saw, heard and assessed the witnesses as they testified at the trial in the witness box. It is equally basic that where such Court of trial unquestionably evaluates the evidence before it and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own view for those of the trial Court”. See Guardian Newspaper v. Ajeh (2011) 4 SCNJ 152; Anyegwu v. Onuche (2009) 1 SCNJ 91.

The learned trial judge, in

view of the pleadings and evidence led by the witnesses held on pages 379-380 of the record as follows: “I have perused the evidence of the Plaintiffs’ witnesses, and only PW9 covered these in his evidence as repeats of the Amended Statement of Claim paragraphs 10-13. Apart from this, there is no other piece of evidence in support. It is not the law that a litigant cannot call one witness or have a witness in support of some state of affairs but corroboration does not weigh more in the preponderance of evidence. And I find it difficult to believe in the light of the evidence of the Defendants that they the Defendants are not in possession of the disputed area —“.

?I have gone through the evidence on records and the judgment of the learned trial Court and I find it difficult to agree with the submission of the Learned Counsel for the Appellants that the Court below only undertook a summary and restatement of pleadings and evidence without evaluation before reading its decision. It is my considered view that the trial Judge did evaluate and exhaustively dealt with the issues thereat. I have found no reason to fault his decision. It is my finding that the

conclusion reached by the Court below was in order, it is supported by the evidence on record.
This is resolved against the Appellants.

ISSUE SIX
Whether the trial Court was right in granting the Respondents’ counter-claim for declaration and injunction.

Learned Counsel for the Appellants argued that the trial Court took into consideration Exh. “OT9” which in his view was fraudulently obtained, in granting the counter claim of the Defendants. That the pleadings and evidence on record shows that the boundaries of the land counter claimed were not as fixed by Exh. “OT9”. That there was no evidence substantiating the assertion that there was boundary dispute during the reign of Oba Yesuff Oyewumi and the present Oba Akadiri Ookanola regarding the land in dispute. That the description of the land claimed by the Respondents in Exhibit “OT9” is in contrast with the description given by the DW3 in evidence. He referred to page 47 of the record. Counsel also referred to the case of Egharevba v. Osagie (2009) 18 NWLR (Pt. 1173) 327.

?He submits that the issue of boundary dispute during the reign of the two Obas earlier mentioned

having not been substantiated by evidence is unworthy of belief; that Respondents are caught up by the presumption in Section 167 (d) of the Evidence Act, 2011 because they pleaded minutes of a meeting but failed to tender same in evidence. He cited Okunade v. Olawale (2014) 10 NWLR (Pt. 1415) 207-273 paras. C-D.

Counsel asserted that the trial Judge erred in his conclusion that Appellants did not prove title to the land in dispute; that the Court was misled into holding that the Respondents proved their counter claim against the Appellants. He urged this Court to reverse the Judgment of the trial Court.

It was also argued by Counsel that there was no evidence at the trial linking how “Apatapete” came into boundary description given by the DW3 as reflected in Exh. “OT9”. Counsel referred to the case Audu v. I.N.E.C. (No. 2) 2010 456 @ 520 para G. to contend that the trial Court had no power to supply the missing link to grant the reliefs of the Respondents. That the contents of Exhibit “OT9” excludes “Apatapete”, a natural feature.

?Learned Counsel posited that the evidence of the DW3 was shaken under cross-examination. He referred to

pages 334-335 of the records. He also referred to page 54 of the records to submit that DW5’s evidence in chief is self conflicting.

That there was no evidence material and sufficient enough for the Court to grant the counter claim of the Respondents. He cited Egharevba v. Osagie (supra).

Counsel contended that the Respondents herein as tenants denied the title of their overlords and claimed ownership of the land in dispute; that it is a misconduct which is liable to forfeiture of the land granted to them. He cited Olugbode v. Sangodeyi (1996) 4 NWLR (Pt. 444) 500 @ 573 paras. E-F; Okpala v. Okpu (2003) 5 NWLR (Pt. 812) 183 @ 2007 para G; Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362 @ 382 paras. B-C.

Learned Appellants’ Counsel urged the Court to grant the Appellants’ claims, set aside the judgment of the learned trial Court and dismiss the counter claim of the Respondents.

RESOLUTION
?I have already held earlier considering the pleadings of parties and the evidence on record that the Plaintiffs on the preponderance of evidence which is the standard of proof required in all civil cases, have failed in proving their claim by

credible and convincing evidence. On this issue, the contention of the Learned Counsel for the Appellants is that the boundary description in Exhibit “OT9” is in contrast with the evidence of DW3 and that “Apatapete” was not reflected in Exhibit “OT9”. Apatapete was described in paragraphs 10 and 11 of the Defendants pleadings as a flat rock denoting a boundary between the two parties of the land in dispute, DW3 who is the present Olokinni of Okinni land testified under cross-examination in support of the above pleading as follows:
“Gunugun stream was given to Erinmi. And Akodaifa was given to the other side. Apatapete was boundary between the two. And also Aborowa palm tree is also a boundary”.

?See page 336 of the record. Witness also testified on how boundary dispute was settled between the parties which at the long run resulted into the making of Exhibit “OT9”. DW5’s evidence under cross examination also support their pleadings on boundary features of the land in dispute. It should be noted here that while PW6 who is also the 2nd Plaintiff denied the existence of any rock on the land in dispute, PW8 who gave evidence as a Registered Surveyor

testified under cross-examination in the affirmative when he was asked by the Defendants’ Counsel if he noticed any rock on the land in dispute. Under cross-examination on page 311 of the record PW8 was asked:
Q – Any Rock
A – Yes. I showed it at the northern edge.

However, the law is trite that “It is common occurrence in land matters for parties to refer to the same piece or parcel of land by different names and also to indicate in their respective plans different features but the bottom line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all; what is usually in dispute is the ownership of the particular land being claimed by the Plaintiff”.

?From the description of the land in dispute given by both sides in their respective survey plans, the parties, as I have earlier held know the land in dispute. I am of the firm view that what the Plaintiffs and the Counter-Claimants need to do is to establish their title to the said land by one of the five ways of proving title to land.

?In order to avoid repetition, I humbly adopt my position under issue two above that the Appellants

failed to establish that the counter claimants are their tenants/licensees on the land in dispute. The Defendants/Counter Claimants have proved that they have always been in exclusive possession and enjoyment of the land in dispute and they have shown before the Court that the dispute between them and the Plaintiffs had been that of boundary, and same had been fixed. The trial Court held on page 386 of the record thus “I have no reason to disbelieve Defendants witnesses that there was a boundary dispute during the reign of Oba Yesuff Oyewumi and the present Oba Akadiri Ookanola. I also believe that the boundaries were fixed as claimed by the Defendants”.

I am in accord with the position of the learned trial Court above. I hold that the trial Judge was right in granting the Respondents’ counter claim for declaration and injunction, having proved a better title to the land in dispute by credible and satisfactory evidence.
This issue is resolved against the Appellants.

?Having resolved all the issues herein against the Appellants, the result is that the appeal is unmeritorious and it is hereby dismissed. The judgment of the learned trial

Court delivered on the 27/01/2016 in Suit No: HED/05/2016 is upheld. Accordingly, the Defendants/Respondents? counter claim succeeds.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the Judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA. I agree with his reasoning and final conclusions in this appeal.

It is trite law that a Plaintiff desirous of a declaration of title must prove it by any of the 5 ways succinctly tabulated in IDUNDUN v. OKUMAGBA (1976) 6-9 SC pg. 100. If a Plaintiff fails to prove his title with any of these 5 ways, his claim fails.

The dismissal of a Plaintiff’s claim for declaration of title to land does not automatically confer title to the same land in dispute on the Defendant. Therefore, where a Plaintiff claims title to land and the Court dismisses his claim for failing to prove title, a Defendant who has not counter-claimed for declaration of title to the same land does not automatically become entitled to the land. ANWOYI v. SHODEKE (2006) 13 NWLR (Pt. 996) PG. 34.

In the instant appeal, the Respondents

counter-claimed, hence the declaration of title to them when the Plaintiffs/Appellants’ claim failed.

This appeal is unmeritorious and therefore, dismissed. The judgment of the lower Court is hereby affirmed.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having had the opportunity of reading in advance the lead judgment just delivered by my learned brother, MOHAMMED A. DANJUMA, JCA, who justifiably treated the Preliminary Objection of the Respondent on issues 1 and 3 of the Appellant and rightly dismissed same. He proceeded to consider and determined the formulated six (6) issues of the Appellant distilled from the seven (7) grounds of appeal contained in the Notice of Appeal dated and filed on the 2nd day of February, 2016. I am in total agreement with the resolutions of the said issues with nothing useful to add. Consequence upon which the appeal is unmeritorious and hereby dismissed. I therefore affirmed the judgment of the lower Court delivered on 27/01/2016 in Suit No: HED/05/2016.

?No order as to costs.

Appearances:

Adewale Afolabi with him, T. S. Adegboyega and Wonder AjibobolaFor Appellant(s)

Abiodun Olaide, Esq.For Respondent(s)

Appearances

Adewale Afolabi with him, T. S. Adegboyega and Wonder AjibobolaFor Appellant

AND

Abiodun Olaide, Esq.For Respondent

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