MATHEW ALFA OHIMOGBO v. ATTAH IDIH
(2018)LCN/12284(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of December, 2018
CA/A/364/2016
RATIO
CUSTOMARY LAW: WHAT IS TRADITIONAL HISTORY
“It is settled law that traditional history is based on history extending beyond human memory. It is narrated by oral evidence handed down from generation to generation. If it is in respect of ownership of land, the relevant family ancestry or community heads, as the case may be, through whom the land has devolved must be pleaded and evidence clearly led in support. See Davies Vs Ajibowa (1968) NMLR 92; Owoade Vs Omitola (1988) NWLR (part 77) 413 at 424 – 425. It is trite that once the traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof. See Akunyili Vs Ejidike (1996) 5 NWLR (part 449) 351 at 4l7; Balogun Vs Akanji (1988) 1 NWLR (part 70) 301. In Alikor & Ors Vs Ogwo & Ors (2010) 5 NWLR (part 1187).” PER ADAMU JAURO, J.C.A.
EVIDENCE: WAYS OF PROVING TITLE TO LAND
“In a claim for declaration of title to land, it is the law that title to land can be proved in five ways, that is: 1. By traditional evidence; 2. By production of documents of title which are duly authenticated; 3. By acts of selling, leasing, renting out all or part of the land or farming on it or in a 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 Idundun Vs Okumagba (1975) 9 – 10 SC 227 at 246 – 250; Morenikeji & ors Vs Adegbosin & ors (2003) LPELR 1911 (SC).” PER ADAMU JAURO, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
MATHEW ALFA OHIMOGBO Appellant(s)
AND
ATTAH IDIH Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the Kogi State High Court of Justice (hereinafter referred to as the “lower Court?) sitting in its appellate jurisdiction in appeal No. AHC/2A/2014 Coram Hon. Justice R. O. Olorunfemi, Hon. Justice E. O. Haruna and Hon. Justice A. Akogu delivered on 24th March, 2016.
The history of the suit can be traced to the Upper Area Court, Anyigba (hereinafter referred to as the ‘trial Court’) wherein the respondent then as plaintiffs filed her complain before the trial Court against the defendant now appellant. The action was for a claim of title to land situate at Oko Ogbayikeke between Anyigba Ojikpadala Idah express road and Anyigba road, an order of injunction and forfeiture of tenancy. In support of her case before the trial Court, the plaintiff testified and called six other witnesses and tendered five documents admitted as Exhibits P1, P2, P3, P4 and P5. The basis of the plaintiff’s claim over the land in dispute was anchored on the fact that her grandfather Emakoji Ogo disvirgined the large expanse of farm land called Oko Ogbaikeke or Ogbayikeke in Anyigba, Kogi State. After the death of Emakoji Ogo (grandfather of the plaintiff) the original owner of the farm land, the land devolved unto her father Idi Emakoji.
The plaintiff contended that her father Idi Emakoji allocated the land to different persons including the grandfather of the defendant/appellant, Ohimogbo, on the condition for payment of yearly tribute. The land that was allocated to Ohimogbo, the father of the appellant is the portion that is the subject of litigation in this case. Ohimogbo was paying four tins of red oil twice yearly. Plaintiff maintained that Ohimogbo kept to the terms of the allocation, by paying the tribute until his demise. It was also the case of the plaintiff/respondent that after the death of Ohimogbo, Alfa, the son of Ohimogbo and the father of the appellant continued to pay tribute of four tins of red oil to the plaintiff/respondent’s father till his death. After the defendant/appellant took over the land upon the demise of his father, he paid tribute twice, thereafter he stopped and started selling part of the land to people, hence this suit.
Appellant denied the respondent’s claims and in his defence testified and called four other witnesses. His defence was to the effect that the land in dispute was originally one of the three farm lands that were disvirgined and owned by his grandfather Ohimogbo.
He stated that Ohimogbo had three sons namely Umoru Ohimogbo, Isah Ohimogbo and Alfa Ohimogbo. After the death of Ohimogbo, the land in dispute together with other existing farm lands situate at Okoiji Ate, close to M & G along Anyigba Idah road and the one called Oko Agbeji all owned by Ohimogbo devolved unto Umoru Ohimogbo being the first child. After the death of Umoru Ohimogho, the three farm lands devolved on Isah Ohimogbo. Alfa Ohimogbo (appellant’s father) died before the death of Umoru. While he was alive he (Alfa) planted economic trees such as orange trees, cashew trees, okro tree, palm tree, Egili tree and stumps of ugba tree on the land in dispute. With the devolution of the three farm lands on Isah Ohimogbo after the demise of Umoru, Isa decided to divide all the lands among the children of Umoru and Alfa. Appellant alleged that the land which his father planted economic trees is the land in dispute, and is the same land that was given to him by Isah Ohimogbo. While the remaining two other lands were shared between Isah Ohimogbo and the children of Umoru. Appellant denied neither Ohimogho nor himself paid tribute to the plaintiff’s family. He prayed the trial Court to dismiss the plaintiff’s case.
On the application of the plaintiff’s counsel, the trial Court visited the locus in quo on 2nd October, 2013. All the parties were present at the locus in quo, wherein, parties, witnesses again testified and the court adjourned for written addresses. Counsel for the parties filed and exchanged their final written addresses which were adopted in Court. On 4th September, 2014 the learned trial Court judges entered judgment in favour of the plaintiff/respondent in following words:
“Accordingly, the case of the plaintiff succeeds. The Land by name Ogbaikeke along Anyigba – Idah road and in particular, the land in dispute which is bounded by the road to the University which passes the front of one Wada Ejiga on the north, Oando on the south, Anyigba ldah road on the west and the plaintiff herself on the east is hereby declared to the plaintiff.”
Dissatisfied with the decision of the trial Court, appellant filed two grounds of appeal before the lower Court on 5th September, 2014. However, on 30th September, 2014 appellant filed additional eight grounds of appeal. Parties filed and exchanged their written addresses before the lower Court and adopted same on 16th March, 2016. After considering parties argument, the learned judges of the lower Court dismissed the appellant’s appeal as lacking in merit and affirmed the judgment of the Upper Area Court.
Dissatisfied further with the decision of the lower Court, appellant applied for leave of the lower Court to appeal against its decision. On 20th June, 2016 the lower Court granted leave to appeal. Pursuant to the said leave granted to the appellant, a notice of appeal containing six grounds of appeal was filed on 21st June, 2016 on behalf of the Appellant. The Appellant sought for the relief for an order to set aside the judgment of Kogi State High Court sitting on appeal which affirmed the decision of the trial Court, allow this appeal and dismiss respondent’s case in its entirety as devoid of merit.
Upon compiling and transmitting the record of appeal to the Court, parties filed and exchanged their briefs of argument in accordance with the rules of Court. The Appellant’s brief of argument was settled by E. A. Haruna Esq., and is dated 11th October, 2017 and filed on 13th October, 2017. The Respondent’s brief of argument was settled by Dr. Benjamin Ogwo, Esq., and is dated 9th April, 2018 and deemed filed on 17th September, 2018.
The appeal was heard on 17th September, 2018. Learned Appellant’s counsel E. A. Haruna Esq., adopted the Appellant’s brief of argument and urged the Court to allow the appeal, set aside the decision of the lower Court and enter an order dismissing respondent’s claim before the trial Court. For his part, learned counsel for the respondent Dr. Benjamin Ogwo adopted the respondent’s brief of argument and urged the Court to dismiss the appeal as lacking in merit.
From the Appellant’s six grounds of appeal, his learned counsel distilled four issues for determination to wit:
1. “Was the lower Court right in its application of Section 232 of the Evidence Act to bar the invocation of the legal consequence of the respondent projecting two competing histories of her ownership of Ogbaikeke land on her claim before the trial Court? Distilled from ground 3 of the notice of appeal of 21st June, 2016.
2. Was the lower Court right in affirming the decision of the trial Court that the respondent proved her case on the basis of traditional evidence? Distilled from ground 4 of the Notice of Appeal of 21st June, 2016.
3. Was the lower Court right to have decided that the identity of the land disputed by the parties was not an issue before the trial Court even when the respondent, under cross examination, could not identify the land? Distilled from ground 2 of the notice of appeal of 21st June, 2016.
4. Was the lower Court right to have decided that the wrong use to which the trial Court put the evidence adduced in Exhibit P5 did not occasion any miscarriage of Justice? Distilled from ground 7, 5 and 6 of the Notice of Appeal of 21st June, 2016.”
The Respondent for his part also submitted four issues for determination of this appeal to wit:
1. Whether the Respondent projected two competing traditional histories of her ownership of the land in dispute? Ground 3 of the Notice of Appeal.
2. Whether the lower Court was right when it affirmed the decision of the trial Upper Area Court that the Respondent proved her case. Ground 4 of the notice of appeal’
3. Whether the lower Court was right in agreeing with the trial Upper Area Court that the identity of the land in dispute was not in issue. Ground 2 of the notice of appeal.
4. Whether the lower Court was right in holding that the trial Upper Area Court’s consideration of Exhibit P5 did not occasion a miscarriage of justice. Ground 1, 5 and 6 of the notice of appeal.
A careful reading of the issues formulated by the parties, the two sets of issues are similar in all ramification and to my view any set of the issues adopted will conveniently determine the crux of this appeal. I will adopt the respondent’s issues for being more Apt and precise as the ones calling the determination of this appeal. However, in doing so, issues one, two and four will be considered together while issue three will be treated separately.
ISSUES ONE, TWO AND FOUR
In arguing these issues as reproduced supra, learned counsel for the Appellant submitted that the respondent projected two competing histories of her ownership of the land in dispute.
The first projection was that respondent’s oral evidence before the trial Court on page 37 of the record of appeal and the second projection is the respondent’s Exhibit P3. He stated that while in the respondent oral testimony, she testified that Emakoji Ogo was the original owner of the land in dispute, in Exhibit P3, the original owner of the land was stated as one Iyidi Omokoji. Learned counsel submits that where a party projects two competing histories of his ownership in support of his claim, he has to fail on the case he set out to make. If he is the plaintiff, his claim must be dismissed. Reliance is placed on the case of Ohiaeri Vs Akabeze (1992) 2 SCNJ (part 1) 76 at 88.
It was the contention of the learned counsel that the reliance on Section 232 of the Evidence Act by the trial Court on the need that the appellant or his counsel ought to have cross examined the respondent on her oral evidence that the original owner of the land in dispute was Emakoji Ogo by using Exhibit P3 in which Iyidi Omokoji was stated to be the original owner of the land is contrary to the import and purport of Section 232 of the Evidence Act.
Learned counsel contended that Section 232 of the Evidence Act is applicable only where the person cross examining a witness seek to contradict the witness by producing his previous statement or evidence in writing which is directly in conflict with his oral evidence in Court on the same point and in the same proceeding. He submits that since Exhibit P3 was not so tendered in evidence, appellant or his counsel cannot be held to have failed to take advantage of Section 232 of the Evidence Act as erroneously held by the lower Court. Counsel argued that it was not the business or duty of appellant’s counsel to assist the respondent to clarify the projection of two competing histories of her ownership of the land in dispute. He submits that any attempt of the appellant’s counsel to add to Exhibit P3 would violate the clear provision of Section 128(1) of the Evidence Act. On the interpretation of this Section, counsel referred to the case of Ojoh Vs Kamalu (2005) 18 NWLR (parrt 958) 523 at page 580 paragraphs C – D where Onnoghen JSC (as he then was) held that it is the law that oral evidence is inadmissible to add to or subtract from or contradict the content of a document.
Counsel further referred to the cases of Larmie Vs D. P. M. Ltd (2005) 18 NWLR (part 958) 438 at 470 paragraphs A – D; Ezemba Vs lbeneme (2004) 7 SCNJ 136 at page 150; Adetoro Vs U.B.N Plc (2008) 13 NWLR (part 1104) 235 at page 277 paragraphs B – E and Christaben Group Ltd Vs Oni (2008) 11 NWLR (part 1097) 84 at page 111 paragraphs F – H.
In respect of the question whether the respondent proved her case on the basis of traditional evidence, learned counsel submitted that in deciding this case in favour of the respondent, the lower Court misconceived the ratio in the case of Makinde Vs Akinwale (2000) 1 SCNJ 100 at page 110 in justifying the discrepancy between respondent’s viva voce evidence and Exhibit P3 regarding the original owner(s) of Ogbaikeke land. He stated that in Makinde Vs Akinwale (supra), the plaintiffs and their witnesses (except PW2) gave evidence that their ancestor was Odede who begat Aso. However, PW2 in his evidence stated that Aso was the father of Odede. The Supreme Court stated that the question whether Odede begat Aso or vice versa can be accommodated within the lapses that are not unusual in traditional history, where there is absence of written records and parties depend in oral accounts passed from generation to generation. The contradiction was held not be material to have vitiated the evidence of traditional history given by the plaintiffs. Further, counsel referred to the ratio in the said Supreme Court’s decision that the case perhaps would have been different if PW2 did not mention Aso or Odede but other names entirely.
It was submitted by the learned counsel that the name of the original owner of Ogbaikeke land chorused by the respondent and some of her witnesses in their testimonies before the trial Court is Emakoji Ogo. He stated the name given by the respondent in Exhibit P3 is completely different person as the original owner of Ogbaikeke land. He submits that this lapse or contradiction cannot be regarded as immaterial considering the nature of traditional history as elucidated by the Supreme Court in Makinde vs Akinwale (supra) 101 at page 110.
It was further argued that the judgment in Exhibit P5 clearly, shows that the respondent and her witnesses lied when they testified that Emakoji Ogo alone was the original owner of ogbaikeke land.
He submits that the decision of the lower Court that the respondent proved her case on the basis of traditional evidence cannot be sustained in the face of the decision in Exhibit P5 as this finding of the trial Court has occasioned miscarriage of justice on the appellant. Reliance was placed on the case of Adebayo Vs Attorney General of Ogun State (2008) 7 NWLR (part 1085) 201 at 214 paragraphs F – G where the Court held that to reach the conclusion that miscarriage of justice has taken place does not require a finding that different result necessarily would have been reached in the proceeding said to be affected by the miscarriage. It is not enough if what is done is not justice according to law. Reliance is further placed on the case of Obim Vs Achuk (2005) 6 NWLR (part 922) 594 at page 621-622 paragraphs G – B and Ojo Vs Anibire (2004) 10 NWLR (Part 882) 571 at page 583. On the meaning of miscarriage of justice counsel referred to the case of Larmie vs V. D.P.M.S. Ltd (supra) at page 463 paragraphs E – H and Nwadike Vs A.S.L.G (2008) 16 NWLR (part1112) 203 at page 221 – 222 Paragraphs F – A.
It was the argument of the learned counsel that the finding of the lower court that:
“It seems clear to us therefore that in coming to the conclusion that the land subject matter of Exhibit P5 is the same with the land in dispute, the trial Court relied on the evidence of plaintiff in Exhibit PS?. we are therefore in agreement with the appellant’s counsel that the trial Court was wrong?. in the use to which it put the evidence in Exhibit P5.”
Was against the law as restated in the case of Durosaro Vs Ayorinde (2005) 8 NWLR (part 927) 407 at page 426 paragraphs F – G and Sodipo Vs Ogidan (2008) 4 NWLR (part 1077) 342 at page 369 paragraphs F – H that it is not permissible to treat evidence in previous proceedings as one of truth. It was submitted that the failure of the lower Court to consider the effect of the violation of this principle of law by the trial Court by erroneously resorting to the provisions of Section 251 of the Evidence Act to hold that the violation did not impact on the decision of the trial Court.
It was further contended that the trial Court ought not rely on the evidence in Exhibit P5 to completely ignore the evidence of DW2 on page 59 – 61 of the record of appeal, which evidence was supported by the evidence of the appellant.
Counsel submits that any doubt about the fact that the family of DW2 was originally the appellant’s boundary neighbour to the north and west ought to have been laid to rest when DW2 pointed out the house of his wife close to the filling station of PW2 at the locus in quo and PW2 confirmed in his evidence that the land in which his filling station is located was allocated to him by government.
Learned counsel submits further that the unwarranted observation and the findings of the trial on page 143 of the record of appeal that at the locus in quo DW1 and DW2 are not boundary neighbours to the land in dispute despite unchallenged and uncontroverted evidence by DW2 have no support in the evidence in record. He referred to the case of Obim Vs Achuk (supra) at page 627 – 628 paragraphs H – D. However, learned counsel conceded that the finding of the trial Court was partly informed by the extensive use to which the trial Court put the evidence adduced in Exhibit P5 to reach its conclusion that the same Ogbaikeke land in dispute in Exhibit P5 is the land in dispute in this case.
Counsel urged the Court to resolve these issues in favour of the appellant and hold that not only did the extensive use to which the trial Court put the evidence in Exhibit P5 violate the law but significantly influenced its decision against the appellant. He further urged the Court to allow this appeal and enter an order dismissing respondent’s claim.
Learned respondent’s counsel submitted that the evidence of the respondent when she testified that “the land belongs to her father Idi Emakoji. The land belongs to Emakogi Ogo Originally. He is the father of ldih. It was Emakoji Ogo that disvirgined the land …. After the death of Idih Emakoji, I am now on the land using because I am the daughter of Idih I am the only child of Idih that is alive now”, there is no any conflicting or competing evidence of proof of title of ownership or the Respondent to this land proffered either in evidence in Chief or under cross – examination before the trial Upper Area Court.
Learned counsel submitted that the respondent tendered Exhibit P3 to support her oral evidence. He contends that the failure or neglect of the appellant to contradict the respondent on the names or identities of the land in dispute is an admission of the evidence of respondent to the effect that Exhibit P3 supports the traditional history of the respondent. Reliance was placed on the case of FBN Plc Vs M.O. Nwadialu & Son Ltd 2016 18 NWIR (part 1543) at 34 – 35 paragraphs G – J. He submits that the lower Court was in order, in relying on Section 232 of the Evidence Act, 2011 to the extent that both oral evidence in open Court as well as Exhibit P3 corroborating same were in order in the absence of any cross – examination to discredit the names.
It was further the contention of the counsel that the reliance of the appellant on the case of Ohiaeri Vs Akabeze (supra) does not avail the Appellant as the facts in Ohiaeri Vs Akabeze are not on all fours with the facts of this present case with respect to the procedural steps expected of the appellant who did not contradict the respondent to bring out two conflicting root of title whatsoever.
It was further argued that Section 128(1) of the Evidence Act and the cases of Ojoh Vs Kamalu (supra), Larmie Vs D.P.M.S Ltd (supra), Ezemba Vs lbeneme (supra); Adetoro Vs U.B.N Plc (supra) and Christaben Group Ltd Vs Oni (supra) cited and referred to by the Appellant are of no consequence to the instant case, the fact that the issue of raising or proffering two competing roots of title cannot be seen from the evidence of the respondent both in Chief and under cross examination.
In response to the appellant’s argument that the lower Court misconceived the Supreme Court’s decision in Makinde Vs Akinwale (supra) in finding that the respondent proved her case on the basis of traditional evidence, learned counsel submitted that the lower Court was right in holding that the Respondent proved her case thereby affirming the decision of the trial Upper Area Court. It was stated that the respondent in her traditional evidence testified and traced her root of title to Emakoji oga, counsel added that the evidence of the respondent was supported by PW5 and PW6 and boundary neighbours and beneficiaries of her acts of ownership. Counsel further maintained that the respondent supported her traditional evidence with documents Exhibit P3 and P5. He argued that Exhibit P5 was admitted without objection and there was no cross-examination of the respondent by the appellant’s counsel on Exhibit p5.
It was submitted that the failure of the Appellant to cross-examine the Respondent on Exhibit P5 at the trial Court is an admission of what the Respondent testified in respect of Exhibit P5. Counsel referred to FBN Plc vs Nwadialu (supra) page 1 at 35 paragraphs G – D.
It was the submission of the learned counsel that the trial Court consideration of Exhibit P5 did not occasion any miscarriage of justice and the lower Court was right in holding that the trial Court did not rely on Exhibit P5 to award the land in dispute to the respondent. It was reiterated that the holding of the lower Court is impeccable as it is obvious that the trial Court’s consideration of Exhibit P5 was in respect of confirming that the identity of the land in dispute in this case is the same with that disputed in Exhibit P5 which did not occasion miscarriage of justice whatsoever. He submits that the cases of Durosaro Vs Ayorinde (supra) and Sodipo Vs Ogidan (supra) referred to by the Appellant’s counsel are of no moment.
Learned counsel submitted that it is not every error committed by a trial Court that leads to the reversal of a judgment by the appeal Court, unless such error is manifestly demonstrated to have occasioned a miscarriage of justice. He referred to the case of Faleye Vs Dada (2016) 15 NWLR (part 1534) 80 at 107 paragraphs E – F. Counsel contended that in the instant case no injustice had been occasioned by the consideration of Exhibit P5.
In response to the appellant’s submission that the trial Court relied on the evidence in Exhibit P5 to ignore the unchallenged and uncontroverted evidence of DW2, which formed the basis of giving judgment in favour of the respondent, counsel argued that the judgment of the trial Court was entirely and essentially based on the evidence produced by the respondent and her witnesses before the trial Court and not Exhibit p5 whatsoever. Counsel further submits that the lower Court’s reliance on Section 232 and 251 of the Evidence Act, 2011 has not occasioned any miscarriage of justice. In concluding, learned counsel urged the Court to dismiss the appeal as lacking in merit in all fronts.
It is settled law that traditional history is based on history extending beyond human memory. It is narrated by oral evidence handed down from generation to generation. If it is in respect of ownership of land, the relevant family ancestry or community heads, as the case may be, through whom the land has devolved must be pleaded and evidence clearly led in support. See Davies Vs Ajibowa (1968) NMLR 92; Owoade Vs Omitola (1988) NWLR (part 77) 413 at 424 – 425.
The plaintiff/respondent in presenting her case before the trial Court relied on traditional evidence to the effect that the land in dispute was originally founded by Emakoji Oga and after his death, the land devolved to Idih Emakoji, the respondent’s father and after the death of the father, the land devolved to the respondent. See page 32 of the record. The evidence of PW5 on page 25 – 26 and the evidence of PW6 supported the evidence of the respondent. Though the respondent succeeded in presenting her oral evidence of traditional history, however, the tendering of Exhibit P3 to further support her claim gave the appellant counsel ground to contend that the respondent projected two competing traditional histories.
The evidence of the respondent is to the effect that her grandfather Emakoji Oko disvigined the land, then upon his death it devolved on her father Idih Emakoji who also upon his demised it was inherited by the Respondent. Exhibit P3, the Deed of Ownership stated Iyidi Omokoji who was described as the father of the Respondent as the original owner who transferred the land to the Respondent. The story apparently is along the same line, as the devolution history of the land devolves around the predecessors of the Respondent. See Makinde Vs Akinwale (supra).
Furthermore it has to be pointed out that the appellant never deemed it necessary to cross examine the Respondent on the so called two competing traditional histories. The effect of failure to cross examine a witness on a particular matter is a tacit acceptance of the truth of the evidence of the witness. See Gaji Vs Paye (2003) 8 NWLR (part 823) 583. The contention that the respondent projected two competing traditional histories cannot stand.
In a claim for declaration of title to land, it is the law that title to land can be proved in five ways, that is:
1. By traditional evidence;
2. By production of documents of title which are duly authenticated;
3. By acts of selling, leasing, renting out all or part of the land or farming on it or in a 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 Idundun Vs Okumagba (1975) 9 – 10 SC 227 at 246 – 250; Morenikeji & ors Vs Adegbosin & ors (2003) LPELR 1911 (SC).
In instant case, in proving her case, the respondent relied on the traditional evidence. It is trite that a party who is relying on traditional history must specifically plead and prove the following before the trial Court:
a) Who founded the land?
b) In what manner was the land founded;
c) The names and particulars of successive owners through whom he claims.
See Akinloye Vs Eyilola (1968) NWLR 97; Olujinle Vs Adeagbo (1988) 2 NWLR (part 75) 238; Lawal Vs Olufonobi (1996) 12 SCNJ 376 and Nruamah & Ors Vs Ebuzoeme & Ors (2013) LPELR (19771) (SC).
The respondent’s evidence on page 37 of the record proved that the land in dispute was founded by Emakoji Ogo. PW6 also on page 31 of the record of appeal supported the respondent’s evidence that Emakoji Ogo disvirgined the land. The evidence of PW5 on page 25 of record of appeal was also to the effect that the land subject of dispute was disvirgined by Emakoji Ogo.
On the requirement of the manner how the land was founded, respondent testified at the trial Court that when Emakoji Ogo disvirgined the land, he used to farm on the land. See page 37 of the record. PW5 in this regard also testified that Emakoji used the land for farming. See page 25 of the record. In the same vein, PW6 also testified that Emakoji Ogo disvirgined the land. He farmed on the land.
The third requirement is the names and particulars of successive owners through whom the respondent claims. In this regard, the evidence of the respondent, PW5 and PW6 are very instructive. On page 37 respondent testified that:
“The land belongs to Emakoji Ogo originally … After his death, Idi Emakoji took over the land idi Emakoji is no longer alive, After the death of ldi Emakoji, I am now on the land using because I am the daughter of ldi …”
PW5 also put it succinctly the same way as the evidence of the respondent as follows:
“The land subject of dispute was disvirgined by Emakoji Ogo … Idi is the son of Emakoji Ogo and the plaintiff is the daughter of Idi. Emakoii Ogo used the land to farm. Emakoji Ogo is no longer alife. After his death, Idi took over the use of the land. Idi is no longer a life. After the death of ldi Attah took over the land …” See page 25 of the record of appeal.
The evidence of PW6 was in the same line with the evidence of the respondent and PW5 on the names and particulars of successive owners through which the respondent claimed the land in dispute. PW6 testified as follows:
“Emakoji Ogo disvirgined the land…. After the death of Emakoji, Idi took over the land. Idi is no Ionger alife. After the death of ldi, the plaintiff took over the land.”
The law is settled that the plaintiff who relied on traditional evidence must prove his title to the land and this he has to do by tracing title to his ancestors. See Ogbonna & Anor Vs Jumbo & Ors (2015) LPELR 24378 (CA). In the instant case, the plaintiff/respondent traced title to the land in dispute to her ancestors, her evidence and that of her witnesses was consistent and was able to link the plaintiff with the traditional history relied upon.
It is trite that once the traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof. See Akunyili Vs Ejidike (1996) 5 NWLR (part 449) 351 at 4l7; Balogun Vs Akanji (1988) 1 NWLR (part 70) 301. In Alikor & Ors Vs Ogwo & Ors (2010) 5 NWLR (part 1187) page 281 the Court held that:
“I agree with the respondent counsel that since the respondents, as claimants to the right of occupancy based on traditional history, have successfully discharged the onus of proof of that root of title, there is no further need for them to lead evidence proving acts of possession or any other mode of proving title to the land in disputed land. See Balogun Vs Akanji (1988) 7 NWLR (part 70) 301 at 322…”
In the instant case, the appellant made heavy weather that the judgment of both the trial Court and the lower Court be set aside on the contention that the trial Court relied on Exhibit P3 and P5 to declare title in favour of the respondent. Exhibit P5 is a record of proceedings of Grade 1 Area Court Anyigba between Alhaji Shaibu Etu Vs Attah Idih (Respondent) & 2 Ors in suit No. CV/12/2002. ?
As borne out of the record of appeal, particularly on pages 130 – 135 the trial Court used Exhibit P5 to determine whether or not the subject matter of Exhibit P5 is connected to the land currently in dispute. As it has been held in a plethora of cases that Exhibit P5 being a record previous proceeding can only be used for the purposes of cross – examination to contradict the oral evidence of a witness who testified in the said previous proceeding in a subsequent proceeding. See Salisu & Ors Vs Abubakar & Ors (2014) LPELR 23075 (CA). In the instant case, Exhibit P5 was not used by the appellant to contradict the Respondent or any witness and it is also clear that the decision of both the trial Court and the lower Court was not based on the said exhibit. The approach adopted by the trial Court to determine whether or not the subject matter of Exhibit P5 is connected to the land in dispute was against the settled principle of the law stated in Salisu & Ors Vs Abubakar (supra). This approach, however, will not affect the decision that the respondent had proved her case based on traditional evidence.
Moreso as the trial Court never relied on Exhibit P5 to grant title to the Respondent, it has to be restated that it is not every error that leads to a reversal of a judgment on appeal, except where it is demonstrated that such error has occasioned a Miscarriage of Justice. See Faleye Vs Dada (2016) NWLR (part 1534) 80 at 107. In the same vein, no miscarriage of justice was also occasioned on the appellant by the decision that the respondent proved her case over the land in dispute.
The defendant/appellant, on the other hand, in an attempt to establish his claim to the land in dispute also relied on traditional history. In his evidence before the Upper Area Court he testified that the land in dispute was originally disvirgined by his grandfather Ohimogbo. After his death the land devolved to Umoru Ohimigbo being the first child. His father Alfa was one of the children of Ohimigbo. On the death of Umoru, the land devolved to another child of Ohimigbo, who later distributed the lands owned by Ohimigbo to the children of Umoru and Alfa. Appellant alleged that the land in dispute is the land given to the children of Alfa (his father) in which he assumed control of the land being the eldest. See pages 72 – 73 of the record of appeal.
The lower Court properly addressed the issue raised by the appellant as to his witnesses and disregarding evidence by the trial Court. It is correct law that evaluation of evidence and ascription of probative value to same is the primary duty of the trial Court. Where this is properly done an appellate Court has no reason to interfere, except where the trial Court failed to take advantage of the opportunity it had of seeing and hearing the witnesses. See Sagay Vs Sajere (2000) 2 NSCQR (part 1) 345 and Alli Vs Alesinloye (2000) 2 NSCQR (part 1) 297.
The stand taken by the lower Court on the complaint of the appellant as to his witnesses cannot be faulted. It is the law that where a plaintiff as in the instant case had established his title to the land in dispute directly by traditional history as pleaded by him, there will be no need for the Court to dabble into the rule in Kojo Vs Bonsie to draw inference to establish that which had already been directly prove. See Nwabuoku Vs Onwordi (2002) 3 NWLR (part 755) 558, Balogun Vs Akanji (1988) 1 NWLR (part 70) 310.
In view of the foregoing and all that has been said in the resolutions of these issues, I resolve issues one, two and four against the appellant and in favour of the respondent.
ISSUE THREE
“Whether the lower Court was right in agreeing with the trial Upper Area Court that the identity of the land in dispute was not in issue.”
In arguing this issue, learned counsel for the Appellant submits that the primary duty of a plaintiff in an action for declaration of title to land is to identify the land to which his claim relates with a degree of precision and certainty the test being whether a surveyor can from the record of proceedings produce a plan showing accurately the piece or parcel of land to which the decree of title has been given. He referred to the cases of Adesanya Vs Aderonmu (2005) 5 SCNJ 242 at 257, Auta Vs Ibe (2003) 7 SCNJ 159 at page 169; Temile Vs Awani (2001) 6 SCNJ 190 at page 212; Agbeje Vs Ajibola (2002) 1 SCNJ 64 at page 79; Okochi Vs Animkwoi (2003) 2 SCNJ 260 at page 270 and Owhonda Vs Ekpechi (2003) 9 SCNJ 2 at page 18. Learned counsel submits that where both parties are familiar with or know the land in dispute, neither party will be allowed to place a clog in the wheel of justice by mischievously raising the issue of identity to becloud what is otherwise a piece of land that is well known to the parties. He referred to the case of Odofin vs Oni (2001) 1 SCNJ 130 at page 144.
It was contended that where proceedings are conducted without pleadings as in the instant case, the identity of the land in dispute can be put in issue by the defendant either through the cross-examination of the adversary and his witnesses or in his own testimony. He relied on the case of Ilona Vs Idakwo (2003) 5 SCNI 330 at page 352.
Learned counsel submits that by the appellant’s evidence on pages 73, 85 and 86 of the record of appeal and the respondent’s evidence on pages 53 and 84 of the record of appeal, the identity of the land has been put in issue. He contended that the appellant’s admission under cross-examination that he knows the land in dispute must be taken in the con of his evidence in which he identified the land he stated devolved on him from his grandfather with certainty and precision. He further maintained that the appellant’s admission cannot constitute a license for respondent to show two different portions of land as the land her father allocated to appellant’s grandfather. He further submits that where the description of the land shown to the trial Court by the appellant at the locus in quo is different from the portions shown by the respondent, it cannot be said that both parties know or are familiar with the land in dispute. In concluding, counsel urged the, Court to answer this issue in favour of the appellant and set aside the decision of the lower Court that the identity of the land disputed by the parties was not in issue before the trial Court and enter order dismissing respondent’s claim before the trial Court.
Responding on this issue, learned counsel submits that the evidence of the respondent on page 37 and that of the Appellant on page 73 of the record of appeal were in agreement on the description of the land in dispute except where the road appellant called Ocholi Ochi road which was described by the Respondent as kogi State University to Ojikpadala Ajachagba. He submits that the fact that the parties called the land or boundaries of the land by different names does not mean that they are not ad idem on the identity of the land or boundaries.
He referred to the case of Fajimi Vs Suberu (2013) 6 WRN 158 at 181 where the Court held that where parties are clear as to the identity of the land in dispute, the fact that different names are given to it or the area to it location cannot affect the case. Reliance is further placed on the cases of Aromire Vs Awoyemi (1972); All NLR (part 1) 101 and 113; Makanjuola Vs Balogun (1989) 3 NWLR (part 108) 192 at 204. He reiterated that the evidence of the parties and their witnesses especially those witnesses that are boundary neighbours confirmed that the identity and boundaries of the land in dispute was not in issue between the parties at the trial Court whatsoever. He referred to the case of Ajiboye Vs Onigbinde (2014) 39 WRN 102 at 127 – 128. In line with the above authority, learned counsel argued that the cases of Adesanya Vs Aderonmu (supra); Auta Vs Ibe (supra); Temile Vs Awani (supra); Agbeje Vs Ajibola (supra); Okochi Vs Animkwoi (supra); Owhonda Vs Ekpechi (supra); Odofin Vs Oni (supra) and ilona Vs Idakwo (supra) referred to by the Appellant’s counsel are of no moment to the extent that the respondent discharged the duty placed on her in law as required by those cases.
In concluding, counsel urged the Court to resolve this issue in favour of the respondent to the extent that the lower Court was right in agreeing with the trial Upper Area Court that the identity of the land in dispute was not in issue.
In a claim for declaration of title to land, the starting point is the identity of land. The identity of the land must be clearly ascertained. The identity of land would be in issue only if the defendant in his pleadings disputed either the area of the land or its location. See Ezendu & Ors Vs Obiagwu (1986) 2 NWLR (part 21) page 208; Ayanwale Vs Odusami (2011) LPELR 8143 (SC). The issue of identity of the land in dispute is so crucial that where the plaintiff is unable to identify the land he is claiming, he cannot succeed in the case even if other issues are decided in his favour. See Ibhafidon Vs Igbinosu (2001) 20 WRN 132 SC. As indicated earlier, the burden or onus is always undoubtedly on the plaintiff to show clearly the area of land to which his claim relates. In giving the identity of the land, plaintiff/respondent identified the land as follows:
“The land has boundary. On the Eastern part of the Iand the land is bound by a road to the Kogi State University to Ojikpadala Ajachagba is the boundary mark. This road formally known as project road. The road is still there up till today. On the Western part of the land, the road from Anyigba to ldah which passes the front of blue house hospital is the boundary mark. On the Northern part, the land starts from the post office up to diagnostic hospital. When the post office was not built, Rubber trees were planted to mark the boundary neighbour. On the south, the boundary neighbour is one Sunday Ogbaii. See page 37 – 38 of the record of appeal.
As earlier indicated, the identity of the land in dispute will be in issue if, and on|y if, the defendant in his statement of defence and in the instant case his oral evidence before the trial Court made it one, by disputing either the area or the size or the location or the features indicated by the plaintiff in her oral evidence before the trial Court. See Nwogo Vs Njoku (1990) 3 NWLR (part 140) page 570; Babatola Vs Adewumi (2011) LPELR 3945 (CA). In this regard, the defendant/appellant described the land in dispute as follows:
“The boundary of the land to the east is Ocholi Ochi road. The boundary neighbour the family of ldih (plaintiff). To the west is Anyigba ldah road that passes through the front of Blue house Hospital. The boundary neighbour on the west originally is Ogbaiele family… to the north, the family neighbour is Momoh Ogbaiele family also. To the south, it is Oando filling station and Nigeria union of road transport workers. Originally, we share boundary with Ochiyi family.”
From the above, the appellant’s description was the same with the description given by the respondent, only that some of the boundaries were described with different names. The appellant admitted knowing the land in dispute. The law is settled that where the identity of the land in dispute is known to the parties, the fact that different names are given to the land or area where the land is located is called by different names is not fatal to the case of the party claiming interest in such land. See Akiti Vs Oyekunle & Anor (2015) LPELR – 24681 (CA). In Edjekpo Vs Osia (2007) 8 NWLR (part 1037) 635 at 671 – 572 paragraphs H – B the Supreme Court per Onnoghen JSC (as he then was) held:
“… it is not strange, in fact that is a common feature in a claim for title to land that parties to the dispute call the land in dispute by different names, and will always identify different landmarks as constituting the boundary features of the land. The Courts have always seen through the controversies and determine the real issues in controversy between the parties which is who is the actual party entitled to be declared the owner.”
In the instant case, the appellant’s contention that the identity of the land in dispute is in issue, fails. The issue must therefore be resolved against the appellant. Issue three is hereby resolved against the Appellant and in favour of the respondent.
Having resolved all the four issues in this appeal against the appellant, it is crystal clear that the appeal is devoid of merit, same is hereby dismissed. The judgment of the lower Court in Appeal No. AYHC/2A/2014 presided over by Hon. Justice R. O Olorunfemi, E. O. Haruna and A. B. Akogu delivered on 24th March, 2016 is hereby affirmed. There will be no order as to costs.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in draft, the leading judgment of my learned brother Jauro JCA just delivered. I agree that the appeal lacks merit. I dismiss it and affirm the judgment of the lower Court in Suit No. AYHC/ZA/2014 delivered on 24th March, 2016.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, ADAMU JAURO JCA. I am in full agreement with the reasoning and conclusion and orders reached by my learned brother.
Appearances:
E. A. Haruna, Esq. with him, Oluchukwu Nnamuah, Esq. and Mrs. H. IgomuFor Appellant(s)
Dr. Benjamin Ogwo with him, Anah Josiah Ogbaje, Esq.
For Respondent(s)
