MR. ADEMOLA DAVIES & ANOR v. THE GOVERNOR OF EKITI STATE & ORS (2018)

MR. ADEMOLA DAVIES & ANOR v. THE GOVERNOR OF EKITI STATE & ORS

(2018)LCN/12193(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 28th day of November, 2018

CA/EK/18/2016

RATIO

EVIDENCE: TO PROVE OWNERSHIP OF LAND

“It is now well established that title to land or ownership may be proved in the following five ways: 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 on a portion of it. 4. By acts of long possession and enjoyment of land. 5. By proof of possession of connected or any adjacent 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 the cases of IDUNDUN v. OKUMAGBA (1976) 9-10 SC 224, OBUOBIPI v. OBUFORIBO (2010) ALL FWLR (Pt. 546) @ 560.” PER PAUL OBI ELECHI, J.C.A.

EVIDENCE: BURDEN OF PROOF

“It is trite law under the Evidence Act as in civil cases, the burden of proving a particular fact is upon the party who asserts it and who will fail if no evidence is called upon the issue, regard being to any presumption which may arise from the pleadings of the parties. This onus of proof is however not static, it continually shifts from side to side in respect of a fact in issue until finally rests on a party against whom judgment would be given if no further evidence in respect before the Court. See Igwe v. African Continental Bank Plc. (1999) 6 NWLR (pt. 605) 1, Fadlallah v. Arewa iles Ltd. (1997) 8 NWLR (pt. 518) 546.” PER PAUL OBI ELECHI, J.C.A.

EVIDENCE: WHEN A WITNESS TENDERS DOCUMENT

“A witness who tenders a document and proceeds to give evidence on oath contradicting his document will not be regarded as a truthful witness. At one stage the appellant would deny receiving the goods, at another stage he would admit receiving some of them. In light of all the above and more, the learned trial judge described the appellant as a witness unworthy to be accorded any credibility. I think the judge was right. In Adepoju Ayanwale & Ors. V. Babatole Atanda & Anr. (1988) ALL NLR (reprint) 24 at 38; (1998) 1 NWLR (pt. 68) 22 the Supreme Court observed that:
No witness is entitled to the honour of credibility when he has two material inconsistent evidence given on oath by him on record. Such a witness does not deserve to be described as truthful.” ER PAUL OBI ELECHI, J.C.A.

JUSTICES

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

1. MR. ADEMOLA DAVIES

2. MR. ADEOLA DAVIES

(For and on behalf of children of late Benedict Abiola Davies of Ogotun Ekiti) Appellant(s)

AND

1. THE GOVERNORS OF EKITI STATE

2. THE PERMANENT SECRETARY

[Bureau of Lands, Ado-Ekiti, Ekiti State]

3. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, EKITI STATE

4. OBA OLADAPO OYEBADE

[The Ologotun of Ogotun-Ekiti]

5. CHIEF SIMEON OJO OGUNSUYI

6. CHIEF OLUYITAN IDOWU ALFRED

7. CHIEF RAPHEAL AJAYI AYANDEL

[for themselves and on behalf of Iloda community of Ogotun Ekiti] Respondent(s)

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment):

The appeal originated from the judgment of the High Court of Justice, Ikere Ekiti delivered by Hon. Justice A. A. Adeleye on the 18th of December, 2015.

The Appellants were the Claimants at the lower Court.

The Appellants by their Writ of Summons dated 5th April, 2013 and filed the 8th of April, 2013 and which Writ together with all the accompanying processes, endorsed thereto the following reliefs:

(a) A Declaration that the Claimants and other children of late Abiola Davies are and remain the bona fide and rightful owners of the land lying and situate at Off Ikeji Road, Ogotun Ekiti and covered by a deed of conveyance dated the 2nd day of April, 1976 and registered as No. 44 at page 44 in volume 8 of the Lands Registry in the Office at Akure and now kept in the Office at Ado Ekiti,

(b) A Declaration that the Notice of Revocation of the said land lying, being and situate at Off Ogotun-Ikeji Road, Ogotun-Ekiti and covered by a Deed of Conveyance dated the 2nd day of April, 1976 and registered as No.44 at page 44 in Volume 8 of the Lands Registry in the Office at Akure and now kept in the Office at Ado Ekiti by the 1st defendant as contained in the 2nd defendant?s Notice of Revocation published in the Nation’s Newspaper of Monday, December 10, 2012 at page 11 is oppressive, malafide, illegal, unlawful, unconstitutional, null and void.

(d) An Order setting aside the revocation of the Claimants? land in issue as unlawful, unconstitutional, oppressive, malicious, malafide and actuated by selfish/private/personal interest and abuse of power.

(e) An Order of perpetual injunction restraining the defendants, jointly and severally, their agents, servants and privies from committing any act of trespass on the Claimants’ land in issue or from doing anything in any manner whatsoever that is prejudicial to the Claimants’ right or title to the land in dispute.

(f) General damages of N10,000,000.00 (Ten million naira) against the defendants.

The Appellants were the Plaintiffs at the Lower Court while the Respondents were the Defendant and 4th – 7th Respondents being Counter Claimants at the Lower Court.

The extant claim of the Appellants can be gleaned from the Amended Statement of Claim filed on the 18th day of October, 2013. The 1st – 3rd Respondents Statement of Defence filed on the 21st day of October, 2013. The Statement of Defence/Counter Claim of the 5th – 7th Respondents were also filed. The Appellants filed a Reply to the 4th – 7th Respondents also filed their Reply to Defence to Counter Claim.

FACTS OF THE CASE

The subject matter of the Appellants’ case is that they and other children of late Abiola Davies are the rightful owners in respect of all that parcel of land measuring approximately 50.78 acres lying and situate at Off Ogotun-Ikeji Road, Ogotun – Ekiti which is covered by a deed of Conveyance dated the 2nd day of April, 1976 and registered as No.44 at page 44 in Volume 8 of the Lands Registry in the office at Akure and now kept in the office at Ado-Ekiti and also that the Notice of Revocation of the said land by the 2nd Respondent through a publication in the Nation’s Newspaper of 10th December, 2012 at page 11 is illegal, unlawful, malafide, unconstitutional, null and void and that same should be set aside. The Appellants also claimed an injunctive relief against the Respondents from committing any act of trespass on the land in issue and also for damages.

The 1st – 3rd Respondents Defence was that, as part of one of the eight point agenda of Ekiti State Government to facilitate infrastructural development in the State, the piece of land in Ogotun – Ekiti covering an area of 20,631 hectares belonging to Appellants’ late father was acquired through a notice of acquisition of 7th December, 2012 for public interest thereby revoking the right of occupancy hitherto granted to the Appellants late father.

The case of the 4th Respondent is that late Oba Samuel Olatunbosun former Ologotun of Ogotun Ekiti his predecessor unilaterally transferred a part of the land being claimed by the Appellants to their late father without the consent of the head chief and principal chiefs of the Community and that the land is a stool land which is not transferrable.

The 5th – 7th respondent contested that a part of the land in issue transferred by late Oba Samuel Olatunbosun of late Benedict Abiola Davies (Appellant’s father) is Iloda Community land which transfer was against the Native Law and Custom of Ogotun people being without the consent of Iloda head Chiefs and Principal Chiefs of Iloda Community.

Therefore, the 5th-7th Respondents Counter-Claimed against the Appellants. The case of the 5th- 7th Respondents at the lower Court was a declaration that Iloda Community land purportedly transferred to Abiola Davies by Oba Olatunbosun by virtue of a Deed of Conveyance dated 2nd day of April, 1976 is illegal and void.

To argue the appeal, the Appellants distilled three issues for determination.

ISSUES FOR DETERMINATION

1.Whether the 4th ? 7th Respondents successfully proved their Counter-Claim to the land in dispute to warrant the learned trial Judge entering judgment in their favour.

2. Whether the trial Court discharged his sacred duties by evaluating the evidence of the Appellant in proof of their ownership rights on the land in dispute long before the 4th ? 7th Respondents started laying claims to the land.

3. Whether the learned trial Judge was right in refusing to give effect to numerous documents tendered by the Appellants’ in the determination of the case. If the judgment made in favour of the 4th – 7th Respondents is justified when they never sought that the Notice of Revocation be set aside.

ISSUE ONE:

This issue arose from ground 4.

It is submitted by Appellant’s counsel that in civil cases, the burden of proof on the pleadings rests on the party whether Plaintiff or Defendant who substantially asserts the affirmative of the issue. The onus is on the party seeking a relief in his favour and in so doing must succeed on the strength of his case and not on the weakness of the other party.

Reliance is based on the case of Ayanwale v. Odusami(2012) vol. 204 LRCN 198 at 211-212.

Also that proof of ownership of land can be established by any of the ways as enunciated in Idundun v. Okumagba (1976) 9-10 SC 224, Obuobipi v. Obuforibo (2010) ALL FWLR (pt.546) 543 at 560.

Learned Appellants counsel stated that the 4th – 7th Respondents in proving their case relied heavily on traditional evidence which was pleaded in their Statements of Defence and also adduced from the oral testimonies of DW2 and DW3 respectively. The law is clear that evidence bother on traditional history must be credible, cogent and uncontradicted for the Court to rely on same. See Sapo v. Sunmonu (2010) ALL FWLR (pt.531) 1408 at 1439.

Looking at the case of the 4th – 7th Respondents, it is submitted that from the pleaded facts and evidence that emanated from them in proof of their counter-claim the decision of the learned trial judge was wrong in view of their incredible and conflicting evidence before the Court. He restated that if the Court looks at the documents in the Court record especially Exhibits AD3, the trial Court would discover the true intentions of the 4th Respondents to disposes the Appellants of their inheritance. To buttress this point, he referred the Court to paragraphs 4 & 9 of the counter – claim.

It is on that note that learned Appellant counsel submitted that the evidence of 4th Respondent is so conflicting and inconsistent and despite this glaring contradicting in a bid to prove his Counter-Claim that the land he acclaims is a stool land and not transferrable, the trial Judge still gave judgment in his favour even when the law is trite that when a party gives contradiction about a relevant fact, in issue then that fact is regarded as not proved. SeeOwor v. Christopher (2010) ALL FWLR (pt. 511) 962 at 991, Osadim v. Taiwo (2010) ALL FWLR (pt. 534) 146 at 165, Elegushi v. Oseni (200) 133 LRCN 285.

It is submitted that the traditional evidence relied on by the 4th – 7th Respondents to prove their case is not worthy to be relied on by Court as they gave evidence as if they were present in 1971 when Oba Olatunbosun conveyed the land to late Abiola Davies, their evidence is bereft of their personal knowledge as neither the 4th Respondent was in the Community at that time nor were the 5th-7th Respondents who only became Chiefs during the reign of the 4th Respondent whom made them chiefs.

Learned counsel argued further that if neither 4th Respondent ‘7th Respondent were either resident in Ogotun at the time the land was transferred to late Abiola Davies nor were their members of the Ogotun- in-Council, the crucial question that may agitate is that ‘how did they know that Oba Samuel Olatunbosun did not get the approval of the principal chiefs at that time before the land was conveyed to late Abiola Davies as there is also no existing law in Ogotun Community that the consent and approval by the chiefs of the Oba in respect of an act to be done must be in writing?” They did not also state in their evidence that they were told but claimed they were present which is proved to be false.

The 4th Respondent also gave evidence under cross-examination that all the chiefs he inherited when he ascended the throne were all dead except for Oisamikan yet the said Oisamikan whom would have been able to give a concrete evidence on whether Oba Samuel Olatunbosun unilaterally transferred the land to late Abiola Davies or that same was done with the approval of the chiefs was not called which said evidence is at page 445 of the record. It is therefore submitted that if Oisamikan was called, his evidence would have been unfavourable to the 4th Respondent, see Anike v. SPDC NIG. LTD. (2012) ALL FWLR (pt. 638) 975 at 986.

According to learned counsel it is interesting to note that after the reign of Oba Samuel Olatunbosun who transferred the land in dispute to late Abiola Davies, the Chief he left behind whom were later inherited by the 4th Respondent upon his ascension of the throne in 1985 did not deem fit to challenge the title to land conveyed to late Abiola Davies, if truly the land was a stool land or if the land was not conveyed with their approval. But the present Ogotun Chiefs whom were installed by the 4th Respondent suddenly rose from their slumber and only realized in 2008 which was after thirty-two years that the land the Appellants father have been exercising exclusive ownership rights over is now a stool land and part of Iloda Community land.

It is submitted that from the gap in the 4th – 7th Respondents case, their case is full of inconsistencies and conflicting evidence and as such their counter-claim is not proved, reliance being placed on the case of Eyo v. Onuoha & Anor (2011) vol. 195 LRCN 38 at 84, Ezemba v. Ibeneme (2000) 10 NWLR (pt. 674) 61 at 74;

In the light of the foregoing the Court is urged to hold that the decision of the learned trial judge that the conveyance was done without the consent or concurrence of the eldest and members of the community was based purely on cancerous evidence of the 4th – 7th Respondents which cannot stand the test of legal providence.

The Court is therefore urged to resolve this issue in favour of the Appellants.

ISSUE 2 – which arose from ground six states as follows :

“Whether the trial Court discharged his sacred duties by evaluating the evidence of the Appellant in proof of their ownership rights on the land in dispute long before the 4th – 7th Respondents started laying claims to the land”.

To argue this issue it is submitted what the primary duty of a trial Court is to review, evaluate and give reasons in regard thereof, before making findings; See Adebayo v. Shogo (2005) 7 NWLR (pt. 925) 467 at 481, Ndem v. Nkpinang (2001) 2 NWLR (pt. 698) 451 at 462.

It is submitted that the trial Court failed to evaluate the material evidence of the numerous acts of ownership and possession exercised over the land in dispute by the Appellants? late father which passed onto the Appellants at his death and which ownership rights as the 4th Respondent has consistently given due regards and accord over the years, during his reign without any form of challenge or interference until in 2008, through some protest letters.

The Appellant in their Amended statement of claim pleaded acts of possession exercised as an assertion of their ownership rights over the land in dispute as could be seen from paragraphs 13 – 17 of the Amended Statement of claim on page 94 of the records.

It is contended that the 6th Respondent also acknowledged the acts of possession exercised over the land by the Appellants when he stated during his Cross-Examination at page 448 of the Record that ‘There are palm trees on the’. The contents of Exhibit AD10 also show that there is a structure on the land with gate that the party has agreed not to interfere with henceforth.

To further strengthen their case, the Appellants tendered documents which fully support his oral assertions that the land in dispute belongs to them having been duly conveyed to their late father by late Oba Samuel Olatunbosun with the consent of his subjects upon his application as evidenced in Exhibit AD1. What was conveyed to late Abiola Davies is a farmland which the Oba had the powers to allocate to any person who applies.

Even Exhibits AD7, AD8, AD11 are documents written and signed by the 4th Respondent to Mrs. F.A. Adeparusi Abiola acting for the late Abiola Davies family now been represented by the Appellants wherein the 4th Respondent acknowledged and accorded their ownership rights over the land in dispute and only for the 4th Respondent to suddenly realize that the land his predecessor conveyed to late Abiola Davies is a stool land and part of Iloda Community Land.

Exhibit AD3 is a document which obviously emanated from the 4th Respondent and it established the pleaded facts in paragraph 16 of the Amended Statement of claim which goes to show the bad intention of the 4th Respondent in connivance with the 5th – 7th Respondents, his loyal subjects to challenge the ownership rights of the Appellants over the land in dispute in a bid for them to allocate the plots of land to themselves. See Eyo v. Onuoha (supra).

It is further submitted that the trial Court failed to evaluate the documents submitted by the Appellant which occasioned a miscarriage of justice. Reliance was placed on the authority of Jolasun v. Bamgboye (2010) ALL FWLR (pt. 595) 203 at 338, Arise v. Adetunmbi (2011) ALL FWLR (pt. 558, 94 at 96.

Learned Appellant counsel contended that inspite of the evidence on record, the learned trial judge glossed over evidence on Record that the Appellants exercised rights of ownership and possession over the land in dispute where the Appellants had palm trees, livestock, poultry, palm oil mill and buildings on the land while the land was fenced with a gate. The evidence of the 2nd Appellant which was confirmed by that of the Respondents that there are palm trees on the land and in Exhibit AD3 the 4th Respondent admitted that the land was fenced. Exhibits AD7, AD8, AD10 and AD11 are pointers to the fact that there are developments on the land as the farmland of the Appellants could not be the only farmland in Ogotun but was the land choose by the 4th Respondent for the UNDP project needed to train about 25 farmers for its suitability.

If there are evidence of palm trees and fence on the land, what other evidence of development does the law require? Moreso as Exhibit AD10 reveals that there are properties and a gate on the land in dispute which the maker promised not to interfere with, countersigned by 4th Respondent.

Also submitted is that the decision by the trial Court that the evidence given by the 2nd Appellant is not to his knowledge in consonance with logic and legal reasoning as a child does not have to witness the acquisition of the properties of a late parent for him to have the locus to assert his right over same or protect same from intruders especially when there are documentary evidence as in the instant case. Also in this case, the evidence of the Appellant reveals that what he narrated to Court are to his knowledge. It is therefore submitted that the judgment of the trial Court is erroneous, perverse and therefore resulted in a miscarriage of justice. Reliance is placed on N.M.S. Lt. v. J.P. ENT. LTD., (2006) 5 NWLR (pt. 972) 127 at 132, Osasona v. Ajayi (2010) ALL FWLR (pt. 549) 1065 @ 1077.

From the records, it shows clearly that the decision of the trial Court was reached without appreciating the evidence adduced by the 2nd Appellant. The Court abdicated his sacred duties by failing to place the evidence of the Appellants side by side with that of the 4th ? 7th Respondents whose evidence could barely establish their case, as the end result would have seen the judge making findings for the Appellants in view of their credible evidence which will far more outweigh the ridiculous and incredible evidence adduced by the 4th – 7th Respondents.

On the basis of the above the Court is urged to resolve this issue in their favour.

ISSUE THREE

Whether the learned trial judge was right in refusing to give direct effect to numerous documents tendered by the Appellants in the determination of the case. If the judgment made in favour of the 4th – 7th Respondents is justified when they never sought that the notice of revocation be set aside.

This issue arose from ground 3 and five of the grounds of appeal.

To argue this issue, learned Appellant counsel contended that the law is clear that every document tendered and admitted in evidence by the Court must be considered by the Court in reaching his final decision and failure there to amounts to injustice. See Osasona v. Ajayi (supra), Egharevba v. Osagie (2010) ALL FWLR (pt. 513) 1253.

At the trial, Appellant counsel contended that the Appellant tendered documents admitted in evidence i.e. Exhibits AD – AD12.

Exhibit AD1 – Certified True Copy of the Deed of Conveyance dated 2nd April, 1976 registered as No. 44 at page 44 in Volume 8 of the Lands Registry Office at Akure no Ado-Ekiti.

Exhibit AD2 – Letter dated 29th June, 2011 addressed to the Governor of Ekiti State by Appellants.

Exhibit AD3 – C.T.C. of the letter dated 44th November, 2008 address to the Commissioner for Lands Ekiti by 4th Respondent.

Exhibit AD4 – C.T.C. of the letter dated 16th July, 2009 a reply to 4th Respondent’s letter by Permanent Secretary, Ministry of Lands, Ekiti State.

Exhibit AD5 – Original Certificate of Incorporation of Ben-Abi Farms Limited dated 4th October, 1976.

Exhibit AD6 – Original Tax Clearance paid by Benedict Abiola Davies on Ban-Abi Farms Limited dated 4th October, 1976.

Exhibit AD7 – Letter dated 19th August, 2000 by 4th Respondent to Mrs. F.A. Adeparusi, requesting for land for UNDP project.

Exhibit AD8 – Letter dated 4th September, 2010 by Mrs. F.A. Adeparusi Abiola to 4th Respondent titled UNDP Project, request for land.

Exhibit AD9 – Letter dated 19th March, 2008 by 4th Respondent to Mrs. F.A. Adeparusi, titled Land Problems.

Exhibit AD10 – Letter dated 1st June by Mr. Tunji Olowokere to Mrs, F.A. Adeparusi, countersigned by 4th Respondent.

Exhibit AD11 – Letter dated 21st August, 2000 by 4th Respondent to Mrs. F.A. Adeparusi, titled UNDP Project Request for Land.

Exhibit AD12 – Photographs of Ben Abi Farms on the land in dispute showing gate, structures, crops, poultry, etc.

According to learned counsel Exhibit AD1 is the crux of the Appellants case, which is a document evidencing the transaction between the former Ologotun and late Abiola Davies. Exhibit AD1 conferred a legal title on late Abiola Davies over the land in dispute. Exhibit AD1 shows that the former Ologotun in the person of Oba Samuel Olatunbosun transferred a parcel of farmland to Abiola Davies upon his application to him in 1971, while the transaction was documented in 1976 as it so reflects to enable late Abiola Davies have a registered title. Exhibit AD1 stated that the grantor (Oba Samuel Olatunbosun) has the power under the native law and custom of Ogotun to make allocation and grant of farmland to individuals who applies.

It is submitted that the trial Court failed to evaluate or give proper weight in his findings with regard to Exhibits AD5, AD6, AD7, AD8, AD9, AD10, AD11 and AD12. Also that throughout the length and breadth of the judgment, the learned trial Judge never made mention of Exhibits AD2, AD3 and AD4 not to talk about considering the relevance of the said documents to the case of the Appellants. The said documents having been admitted ought to have formed the bedrock of the judgment of the Court,, more importantly as Exhibits AD3 and AD4 supports the assertions of the Appellants. The law is trite that when documentary evidence support oral testimony, such oral testimony becomes more credible. Reliance is placed on the authority of Ezomo v. N.N.B. Plc. (2006) 14 NWLR (pt.1000) 624 at 658, U.B.A. Plc v. BTL IND. LTD. (2006) 19 NWLR (pt. 1013) 61 at 137.

It is therefore submitted that the documents tendered by the Appellant particularly Exhibits AD3 and AD4 were not given the necessary inference it deserved by the Court as the said documents speak for itself. See Saidu v. Abubakar (2008) 12 NWLR (pt. 1100) 201 at 301, C.AP PLC v. Vital Investment Ltd., (2006) 67 NWLR (pt. 976) 220 at 267.

It is contended that from the Appellants Amended Statement of Claim that their Relief (b) (c) and (d) was for the Court of declare the Notice of Revocation as null and void and set same aside which reliefs the Appellants led sufficient evidence to prove and the trial Court upheld their evidence to establish those fact and rightly set aside the notice of revocation and went ahead to give judgment to the 4th – 7th Respondents who never sought a Relief in their respective Counter Claims that the notice of revocation be set aside by the Court, that was not their case. The learned trial Judge was therefore wrong to have found for the 4th – 7th Respondents by granting them reliefs they never sought for, as the quest for the Notice of Revocation to be set aside was the fulcrum of the Appellants case and the basis of the action at the Court. See Stowe v. Benstowe (2012) ALL FWLR (pt.620 1245 at 1261.

In conclusion, it is submitted that based on the fact and the law, the 4th – 7th Respondents have failed to prove their counter claims with credible and cogent evidence to justify the reliefs they sought, the judgment of the trial Court entering judgment in their favour should be set aside. The learned trial Judge having rightly held that the notice of acquisition by the 1st -3rd Respondents were not duly served on the Appellants as same was done malafide in connivance with the 4th Respondent to actualize a self seeking interest, this Honourable Court is urged to allow this Appeal and enter judgment in favour of the Appeals who have proved their case as required by law.

The 1st – 3rd Respondents’ case is that the land covering an area of 20.631 hectares as evidenced on survey plan belonging to the claimant’s father was acquired by the Ekiti State Government for public purpose.

On the basis of that, the 1st – 3rd Respondents formulated two issues for determination thus;

1. Whether the 4th – 7th Respondents successfully proved their counter-claim to the land in dispute to warrant the learned trial judge entering judgment in their favour.

(2) Whether the learned trial judge discharged his sacred duties by evaluating the evidence of the Appellants in proof of their ownership rights on the land in dispute long before the 4th ? 7th Respondents started laying claims to the land.

ISSUE ONE

Whether the 4th – 7th Respondents successfully proved their counterclaim to the land in dispute to warrant the learned trial judge entering judgment in their favour.

Learned 1st – 3rd Respondent counsel referred the Court to the authority of Idundun v. Okumagba & Ors. (supra) and Ogunmuyiwa v. Odukoya (2009) ALL FWLR (pt.454) 1526 on the five ways of proving ownership of land thereupon, he stated that the 4th defendant/counter-claimant/Respondent was originally sued as a defendant by the claimants in this suit, while the 5th?7th defendant/counter claimant/Respondents were joined by the order of the Court.

The 4th Respondent/Counter Claimant’s reliefs before the Court are:

(A) A DECLARATION that Abeta stool farmland purportedly transferred to late Benedict Abiola Davies by virtue of a Deed of Conveyance dated 2nd day of April, 1976 is not transferable by virtue of the native law and customs of Ogotun Ekiti.

(B) A DECLARATION that Abeta stool farmland resides in the royal family in perpetuity.

(C) An order setting aside the Deed of conveyance dated the 2nd day of April, 1976 and registered as No.44 page 44 in volume 8 of the lands registry in the office at Akure and kept in the office at Ado-Ekiti.

5th – 7th Defendants/Counter Claimants’ relief before the Court is:

A. A declaration that Iloda community land purportedly transferred to Late Abiola Davies by Oba Olatunbosun by virtue of a Deed of conveyance dated 2nd day of April, 1976 is illegal and void.

It is submitted that it is a settled principle of law that in a counter claim, just like in any other claim for declaration of title to land, the onus lies on the claimant to prove with precision and certainty and without inconsistency, the identity of the land to which his claim or counter claim relates. Issues were not joined with the Claimant on the identity of the land, the identity and extent of the land covered by the Deed of Conveyance dated 2nd day of April, 1976 is well known to all parties. Exhibit AD1 which is Deed of Conveyance identified the land and the extent of the land. DW2 and DW3 also described orally the identity and extent of the land by saying that one part of the land is owned by the Iloda community of Ogotun-Ekiti and that River Osun traverses both land.

The 4th -7th Respondents in proving their case relied heavily on traditional evidence which was pleaded in their Statement of Defence and counter claim. DW1, DW2 also gave oral testimonies:

ISSUE TWO

Whether the learned trial judge discharged his sacred duties by evaluating the evidence of the Appellants in proof of their ownership rights on the land in dispute long before the 4th ? 7th Respondents started laying claims to the land?.

It is submitted that the trial Judge discharged his sacred duties by evaluating the evidence of the ownership rights on the land in dispute.

The claimants in proof of ownership of the disputed land relied on the Deed of Conveyance dated 2nd day of April, 1976 and registered as No. 44 at page 44 in volume 8 of the land registry Ado-Ekiti.

The Appellants he contended as Claimants at the trial Court, pleaded these facts in paragraphs 13 and 14 of their amended Statement of Claim, this is contained at page 94 of the record of proceedings Paragraph 13 the claimants aver that their late father (Benedict Abiola Davies) during his lifetime, purchased the parcel of Land lying, being and situated at off Ogotun-Ikeji Road, Ogotun Ekiti from the former Ologotun of Ogotun Ekiti Oba Samuel Olatunbosun evidenced by a Deed of Conveyance dated the 2nd day of April, 1976 and Registered as No.44 at page 44 in Volume 8 of the Lands Registry in the office at Akure and now kept in the office at Ado-Ekiti.

On the proof of ownership of land, he referred to the production of documents evidencing title as claimed. On the genuiness of such a document, he referred to the case of Idundun v. Okumagba (supra) and Romaine v. Romaine (1992) 4 NWLR (pt. 238) 650.

Exhibit AD1, being the document upon which the purported grant was made by Late Oba Samuel Olatunbosun did not have what it had granted according to learned counsel. See the Statement of Defence and counter-claim of the 4th – 7th Respondents. No one can give what he does not have. See Ajuwon v. Akanni (1993) NWLR (Pt. 316) 182.

It is submitted that Exhibit AD1 is defective, because it did not meet the requirements stipulated by law, Exhibit AD1 was issued at the time the customary title of the 4th – 7th Respondents/Defendants/Counter-Claimants over the piece of land in dispute was subsisting and vesting properly in them had not been revoked. The Exhibit AD1 was rooted on no foundation whatsoever and it is ineffective and void abinitio.

It is also submitted that the learned trial Judge discharged his sacred duties by evaluating the evidence of the Appellants in proof of their ownership rights on the land in dispute long before the 4th – 7th Respondents started laying claims to the land.

He then urged the Court to resolve issue two against the Appellants as the 4th-7th Respondents have proved their counter-claim with credible and cogent evidence. The Court is finally urged to dismiss the appeal and affirm the judgment of the lower Court.

Learned 1st-3rd Respondents’ counsel referred the Court to paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the statement of defence and counter – claim of the 4th Respondent and also to paragraphs 1-9 of the statement of defence/counter claim of the 5th – 7th defendants/counter-claimants.

It is therefore stated that, it is crystal clear that from the pleadings and evidence of DW2 and DW3, the erstwhile Ologotun of Ogotun Ekiti Oba Samuel Olatunbosun had no title to pass to late Benedict Abiola Davies, the erstwhile Oba sold stool land covering approximately 50.78 acres in his personal capacity as it is stated in the Deed of conveyance without recourse to members or chiefs of the Ologotun in council. Also late Abiola Davies did not follow the procedure on how land is acquired from the Iloda community.

It is learned counsel’s impression that, if the erstwhile Oba had acted in concert with the principal chiefs of Ogotun Ekiti, the transaction would have been in the name of the Ologotun in council, and also if the principal members of the community were involved in the transaction, the transaction would have followed due processes. He likened the position to the sale of family land without the consent of the Head of Family and the principal members which is void abinitio. SeeOladapo v. Wilson (2010) 21 WRN.

It is contended that Exhibit AD1 is a document evidencing the transaction between the former Ologotun of Ogotun Late Oba Samuel Olatunbosun and Abiola Davies, AD1 shows that former Ologotun transferred the said land to Abiola Davies unilaterally without the consent of his people. This could be seen from the introductory part of Exhibit AD1, the said Exhibit has no single person witnessed the transaction between the two parties and neither did the Late Oba Samuel Olatunbosun nor Abiola Davies have a witness in the transaction. Exhibit AD15 shows that the transaction between the Oba and Johnson Olayinka who applied for farmland was not done unilaterally rather it was done with his people.

The native law and custom of general application in Yoruba land and Ogotun in particular, is that an Oba does not exercises his authority over stool/common land in a manner contrary to the customary law applicable in his community, see Reg. Trustees, R.C.C.G. v. Bankole (2011) 1 NWLR (pt. 1227) 57 – 58.

On stool land, it is contended that it cannot be sold or transferred as it is for the present generation and the yet to be born generation.

Furthermore, counter claim is a claim presented by a Defendant in opposition to or deduction from the claim of the plaintiff. It is a claim. A counter claim is a separate and independent action from the action where there is a counter claim, it must be proved by a party by adducing evidence in support of it. See the case of A.C.B. Plc. v. N.T.S. (NIG) LTD. (2007) NWLR (pt. 1016) p.62. There is no doubt that the 4th – 7th Defendants/Counter Claimants have proved their counter claim by adducing cogent and convincing evidence in support of it.

He then submitted that the 4th – 7th Respondents proved their counter claim to the land in dispute to warrant judgment in their favour and urged the Court to resolve issue one in favour of the 4th – 7th Respondents.

In his opening argument, it is stated that the 5th -7th Respondents in paragraphs 5, 6, and 7 of their Counter-claim averred that a part of the land conveyed to Abiola Davies by the late Ologotun was a stool land. Equally, the 1st-3rd Respondents who registered the conveyance dated 2nd of April, 1976 averred in paragraph 6 of their Statement of Defence that the land conveyed to late Abiola Davies was partly stool land.

Even Appellant’s counsel at the lower Court, Dr. Abegunde admitted same. Nonetheless, the Appellants did not call credible witness to prove that Abeta land conveyed to late Abiola Davies was not stool land. CW1, the only witness who testified for the Appellants admitted that he was born in 1973. The Appellants failed to call Mr. Ojuolape (A Solicitor as he then was) who eventually became a High Court Judge in Ondo State and an indigene of Ogotun Ekiti who allegedly prepared Exhibit AD1 to prove that part of the land conveyed to Late Abiola Davies was not stool land.

The Appellants also failed to call Mrs. Adeparusi, the wife of late Abiola Davies, an indigene of Ogotun Ekiti to rebut the claim of the 4th Respondent that part of the land conveyed to late Abiola Davies was stool land. The Appellants ought to have called her. See Section 167(d) of the Evidence Act 2011, Aremu v. Adetoro (2007) 49 WRNI, Agbi v. Audu Ogbe (2007) 1 WRN page 144.

The 4th Respondent stated in paragraph 14 and 15 at pages 138 and 139 of the Record that the land conveyed to Abiola Davies belonged to two groups namely, stool land and Iloda Community land. He went further in paragraph 15 that River Oshun is the boundary separating the stool land from Iloda Community land. Stool land or royal estate is the class of property that vests the land in the titular head not beneficially or absolute owner but in him in his office.

Are the Appellants saying that the wives of late Abiola Davies had no interest in the estate of their husband? This is because the appellants prayed the lower Court to hold that the appellants and other children of Abiola Davies are the owners of the land in dispute and Abiola’s Estate Worldwide.

In conclusion, the Court is urged to hold that the Appellants had not shown that they had locus standi to institute the action at the lower Court.

However, in the unlikely event that our preliminary objection does not find favour with the Court he formulated the following two issues for the

ISSUES FOR DETERMINATION BY THE 4TH RESPONDENT

1. Whether the 4th Respondent successfully proved his Counter-claim to the land in dispute to warrant the learned trial judge entering judgment in his favour.

2. Whether the trial judge was justified in giving judgment in favour of the 4th Respondent.

ISSUE ONE FOR DETERMINATION

Whether the 4th Respondent successfully proved his counter-claim to the land in dispute to warrant the learned trial Judge entering judgment in his favour.?

The counter-claims of the 4th Respondent are as follows:

(A) A DECLARATION that Abeta stool farmland purportedly transferred to Late Benedict Abiola Davies by virtue of a Deed of Conveyance native law and customs of Ogotun Ekiti.

(B) A DECLARATION that Abeta stool farmland resides in the royal family in perpetuity.

(C) An Order setting aside the Deed of conveyance dated 2nd day of April, 1976 and registered as No.44 at page 44 in Volume 8 of the Lands Registry in the Office at Akure and now kept in the office at Ado Ekiti.

The Appellants claimed to be the owners of the land in dispute and beneficiaries of the Estate of late Abiola Davies worldwide. The truth of the matter is that they did not plead how they became the owner of the Estate of Abiola Davies worldwide. They did not plead any Will or Letter of Administration. They did not plead any Customary Law or Partition of the Estate of Abiola Davies. The fact that they are biological children of late Abiola Davies is not enough.

He submitted further that the objection to jurisdiction can be raised in any of the following situations:

(a) On the basis of the Statement of Claim

(b) On the basis of the evidence received

(d) On the fact of the Writ of Summons, where appropriate, as to the capacity in which the action was brought, or against who the action was brought. See Ajao v. Oyewusi (2008) ALL FWLR (pt. 432) 1119 at 1147, Paras A – C: A-G Kwara State v. Olawale (1993) 1 NWLR (PT.272) P.645.

The Appellants failed to lead evidence, during trial, how they became the owners of the land in dispute. The pictures at pages 219 and 220 of the Record of Appeal show the gate of Ben-Abi Farm Ltd, on the land in dispute. The position of the law is that a limited liability company is a legal personality on its own. Royal Petroleum Coy Ltd. v. FBN Ltd. (1997) 6 NWLR (Pt. 510) p. 584.

The Appellants in their Reply were saying that Ben-Abi is the owner of the land in dispute.

For Ben-Abi Farm Limited to have its farm on the land in dispute to the extent of erecting a gate thereon, there is a presumption that Ben-Abi complied with Section 72 of the Companies and Allied Matters Act. It shows that Ben-Abi ratified pre-incorporation contracts of late Abiola Davies with regard to the purported purchase of the land from the late Ologotun of Ogotun Ekiti. Ben-Abi Farms Nigerian Ltd, was not a party at the lower Court. There was no evidence that the company had been wound up.

A duly incorporated company cannot be inherited. The 4th Respondent counter-claimed against the Appellants. The case of the 4th Respondent at the lower Court was that ABETA FARMLAND purportedly transferred by the Late Ologotun, Oba Olatunbosun was stool land and was not transferable under the native law and customs of Ogotun Ekiti. Abeta stool farmland resides in the royal family in perpetuity. The 4th Respondent testifies for himself and tendered Exhibit AD15. The Honourable trial Court delivered judgment in favour of the 4th – 7th Respondents.

The Appellants, being aggrieved by the judgment of the trial Judge, filed their Notice of Appeal on the 29th of December, 2015. The 4th Respondent filed a notice of preliminary objection and raised two grounds that

(1) The Appellants had no locus standi to institute the case.

(2) The lower Court had no jurisdiction to entertain the case.

Learned Appellant’s counsel contended that the locus standi of the plaintiff is in essence a condition precedent to the Court’s jurisdiction. That before the Court can proceed to the hearing of a matter on merit, the plaintiff must have locus standi. Reliance is placed on Unoka v. Agili (2007) 11 NWLR (pt. 1044) 122, Umar v. WGG Nig Ltd. (2007) 7 NWLR (PT. 1032) 250.

It is therefore submitted on behalf of the 4th Respondent that it is clear from the face of the Appellants’ Writ of Summons and Statement of Claim that the Appellants are not the personal representatives of Late Benedict Abiola Davies having failed to plead the letter of Administration which appointed them as the administrators of the Estate of late Abiola Davies.

ISSUE TWO

Whether the trial Court was justified in giving judgment in favour of the 5th – 7th Respondents?

Learned counsel submitted that the trial judge was right in giving judgment to the 5th – 7th Respondents. The late Abiola Davies did not possess prior valid title to the land in respect of which Exhibit AD1 was later issued. What the Appellants relied upon is a mere possession of Exhibit AD1. It is trite that production of a registered conveyance or Certificate of Occupancy alone is not sufficient to discharge the onus on a plaintiff to prove title he claimed. The Appellant gave evidence that late Abiola Davies bought the land in dispute from the late Ologotun in 1971.

They failed to tender a purchase receipt issued to late Abiola Davies. They equally failed to call witnesses who witnessed the transaction and the handing over of the land to Abiola Davies.

The evidence before the Court is that the head chief and principal chiefs of Iloda were not consulted before the purported transfer by the late Ologotun. Ologotun is not the head of Iloda Community.

It is submitted that the late Ologotun had no authority and capacity to convey Iloda family land to late Abiola Davies without the consent of the head chiefs and principal chiefs of Iloda. The effect of lack of capacity to convey on the part of late Ologotun is that late Abiola Davies possessed nothing.

Since there was in existence a customary owner whose title had not been revoked at the time Exhibit AD1 was executed, the natural consequence would be that the registered conveyance ought not to have been granted and the Court can revoke the registered conveyance.

See Atanda v. Iliasu (supra), Ezeanah v. Attah (supra), Bakare v. Shinaba (supra). Also that the land in dispute conveyed by late Ologotun to Abiola Davies was not developed by late Abiola Davies before he died as could be seen from the evidence of DW1.

It is important therefore to note that the Appellants averred that they had customary tenants on the land and still failed to call a single tenant to give evidence in support of their case. Also, the photographs tendered as Exhibit AD12 series were wrongly admitted as Exhibits. The Exhibit offended Section 83(3) of the Evidence Act because they were made during the pendency of this case.

Under cross examination, the 2nd Appellant (CW1) at page 433 of the Record admitted that his father’s house is on the right handside while going to Ikeji and the land in dispute is on the left handside. He also admitted that they had poultry at the backyard of his father’s house.

The Court is urged to resolve this issue in favour of the 5th – 7th Respondents and to allow the appeal in favour of the 5th – 7th Respondents.

See Olusesi v. Oyelusi (1986) 3 NWLR (pt.31) 634, Adesanoye v. Akinwale (1997) 3 NWLR (pt. 496) 664.

On the basis of the above, he urged the Court to resolve this issue in their favour.

ISSUE TWO FOR DETERMINATION

Whether the trial judge was justified in giving judgment in favour of the 4th Respondent”

It is hereby submitted that the late Benedict Abiola did not possess prior valid title to the land in respect which Exhibit AD1 was issued. It is trite that the production of a registered conveyance or certificate of occupancy alone is not sufficient to discharge the onus on a plaintiff to prove the title he claimed. The Appellants in paragraph 12 of their reply to 4th Appellants, Statement of Defence and Defence to the Counter-Claim admitted that the late Ologotun unilaterally, personally and privately sold stool land to the late Abiola Davies. This is the reason why the Appellants could not call any person who witnessed the transaction and the handing over of the land to Abiola Davies.

The uncontroverted evidence on record is that part of the land conveyed to late Abiola Davies was stool land. It was done without the knowledge of Ologotun in Council. The stool land conveyed to him is not transferrable under the native law and customs of Ogotun people. See Fagbuaro v. Akinbami (2014) 13 WRN 146 at 161 ? 162, Jolasun v. Bamgboye (2010) 18 NWLR (PT.1225) 285 AT 316.

It is therefore submitted that the late Ologotun had no authority and capacity to convey stool land to late Abiola Davies under the native law and customs of the people of Ogotun Ekiti. The effect of lack of capacity to convey on the part of late Ologotun is that Abiola Davies possessed nothing, and therefore Exhibit AD1 is void. See Atanda v. Iliasu (2013) ALL FWLR (pt.681) 1469 at 1489, Ezeanah v. Attah (2004) 7 NWLR (Pt.873) 468, Bakare v. Shinaba (2013) ALL FWLR (pt. 690) 1400.

On a further submission on this aspect, it is stated that the land in dispute conveyed by late Ologotun to Abiola Davies before he died, is reflected in paragraphs 15, 16, 17 and 18 of the 4th Respondents statement on oath sworn to on the 5th November, 2013.

Learned counsel stated that it is important to note that the Appellants claimed that they have customary tenants on the land after the death of their father and still failed to call a single tenant to give evidence in support of their case.

Under cross examination, the 2nd Appellant (CW1) admitted that his father’s house is on the right handside while going to Ikeji and the land in dispute is on the left handside. He also admitted that they have poultry at the backyard of their father’s house. The poultry at the backyard of his father’s house is on the right handside while going to Ikeji, but Exhibit AD1 i.e, the registered conveyance shows that the land is off Ogotun – Ikeji Road.

It is submitted that the learned trial judge duly considered all the exhibits tendered before arriving at its judgment as they were incapable of ratifying the void title of the Appellant’s father.

The Court is then urged to resolve this issue in their favour and to dismiss the appeal in the interest of justice.

For the 5th – 7th Respondents, the following two issues were formulated thus

ISSUES FOR DETERMINATION

1. Whether the 5th – 7th Respondents successfully proved their Counter-Claim to the land in dispute to warrant the learned trial Judge entering judgment in their favour.

2. Whether the trial Court was justified in giving judgment in favour of the 5th ? 7th Respondents.

ISSUE ONE FOR DETERMINATION

Whether the 5th – 7th Respondents successfully proved their Counter-Claim to the land in dispute to warrant the learned trial judge entering judgment in their favour.?

The Counter-Claim of the 5th – 7th Respondents before the trial Court was a declaration that Iloda Community land purportedly transferred to Late Abiola Davies by Oba Olatunbosun by virtue of a Deed of conveyance dated 2nd day of April, 1976 is illegal and void.

A reading of all the averments in the Appellants’ Reply to the 5th-7th Respondents’ Statement of Defence, their Statement of Defence to 5th-7th Respondents’ Counter-Claim, the 1st-3rd Respondents’ Statement of Defence and the averments of the 5th-7th Respondents, all the parties agreed that part of the land conveyed to late Benedict Abiola Davies belonged to Iloda Community.

The fact that the land in dispute is partly owned by Iloda Community and partly owned by the Royal Family or stool land was nowhere specifically denied by the Appellants. A general traverse is not an answer to specific, material and essential allegations in the 5th-7th Respondents’ Counter-Claim. An averment of fact must be met frontally and categorically. Once a traverse is not met directly, the other party is taken to have admitted it. See Federal Board of Inland Revenue v. Integrated Data Services Ltd. (2009) ALL FWLR (pt. 490) 0.788 at p.810.

The 4th Respondent in paragraph 2 of his reply to defence to Counter-Claim averred that all the Chiefs, including Iloda Chiefs he inherited after becoming the Ologotun in 1985 denied any knowledge about the conveyance of the land in dispute to late Abiola Davies. The said conveyance was not carried out by Ologotun-in-Council.

The Appellants failed to call credible witness. He did not have personal knowledge of the conveyance of the land in dispute to his father, he was not there when the land was conveyed and he said under cross examination that he was 14 years old when his father died in 1987. As a child of 14 years old when his father died, he could not have been involved in the activities of his late father.

It is contended that in the instant case the Appellants did not call any witness who saw the actual transfer of the land by the Respondents’ family to late Benedict Abiola Davies. They did not even call Barrister Ojuolape (as he then was), an indigene of Ogotun who is still alive, hale and hearty, who prepared the Deed of conveyance (Exhibit AD1) to give evidence about the transfer of the land in dispute to late Abiola Davies.

The Court is therefore urged to resolve this issue in favour of the 5th, 6th, and 7th Respondents.

In a Reply brief of argument to the 1st – 3rd Respondents’ Appellants counsel submitted that their brief is incompetent and urges the Court to ignore same. According to counsel, the 1st to 3rd Respondents never appealed against the finding of facts of the lower Court which set aside the acquisition of the land of the Appellant as being canvassed by the 1st to 3rd Respondents. Accordingly, he urged the Court to discountenance the submissions of the 1st to 3rd Respondents which are misleading and a misrepresentation of the facts on record.

The 4th Respondent had hitherto filed a notice of preliminary objection dated 29th January 2018 and filed on 29/1/2018 on the grounds that

(1) The Appellants had no locus to institute this case.

(2) The Lower Court had no jurisdiction to entertain the case.

In reply, it is argued that the Appellants sued for themselves and other children of their late father Benedict Abiola Davies and evidence was led in this regard and in the same vein established at the lower Court that they have interest in the property in dispute as same is family property. See U.B.A. Plc v. Sunday Udusip (2014) LPELR 23198 (CA), Dadi v. Garba (1995) 8 NWLR (Pt.411) page 12, Babayeju v. Chief Ashamu (1998) 9 NWLR (pt.567).

The 4th Respondent has seriously canvassed the fact that since the Appellants have failed to plead Letters of Administration which appointed them as the Administrators of the estate of the said Benedict Abiola Davies, they have no locus standi. It is submitted that this argument is frivolous in view of the decision in the case of Okonyia v. Ikengah (2012) NWLR (pt. 697) 336 at 361 and 361 where similar provision was interpreted and the Court stated that the children of a deceased who are the personal representatives of the deceased have the locus standi to institute an action even when Letter of Administration has not been obtained.

Apart from the above, the Appellant pleaded specifically that they are the children of late Benedict Abiola Davies and they are beneficiaries of his estate and even stated that they are suing for themselves and on behalf of the children of late Benedict Abiola Davies. see paragraph 1, 2, 10, 11 and 12 of the Amended Statement of Claim at page 93 – 94 of the records of Appeal.

It was pointed out that the 4th Respondent never raised this issue in the pre-trial information sheet as filled by him, the 2nd Appellant during cross examination admitted being a biological child of late Benedict Abiola Davies and the issue of letter of administration was never raised by the 4th Respondent when he cross examined the 2nd Appellant.

It is the law that a party must be consistent with the case he put forward at the lower Court and at the appellate Court and will not be allowed to sing a different song from the legal song he sang at the trial Court. see the case of Chief Joseph Okon Edem v. Akamkpa Local Government (1999) LPELR 10076 (CA) where Edozie JCA stated as follows at pages 21-23. In the case ofEdebiri v. Edebiri (1997) 4 NWLR (Pt.498) 165 at 176. It was decided that a party is not permitted on appeal to change the case he had made at the trial Court since an appeal is simply the continuation of the case put forward in the Court of first instance;

Apart from this, the 4th Respondent set out issues for determination in his written address and the issue of the failure of the Appellant to tender letters of Administration was never part of the issue he formulated.

In view of the above, the Court is urged to dismiss the said preliminary objection of the 4th Respondent.

On the reply of the Appellant to the main 4th Respondent brief of argument, learned counsel contended that counsel to the 4th Respondent labored so much on the false assumption that the Appellants did not call credible witness to prove that the land conveyed to the father of the Appellant was not a stool land and reply to same is as follows:

That documentary evidence is the yardstick to measure the veracity of oral evidence. See Olasupo v. Morakinyo (2014) ALL FWLR (pt. 725) page 593 to the effect that a party cannot aprobate and at the same time reprobate. See also Alhaji Baba Ali Yaro v. Usman Manu & Anor. (2014) LPELR ? 23181 (CA). Also is that it is too late in the day for the 4th Respondent to raise the issue of calling a particular witness having regard to admitted facts in Exhibit AD3 dated 4th November 2008 whereby the 4th Respondent admitted the transaction thereto. Therefore a party cannot argue contrary to his own document. See Ezemba v. Ibeneme (2000) 16 NWLR (pt.674) 61 at 74. There was therefore no need to call a particular witness as argued and submitted by 4th Respondent counsel.

It is also on record that the 4th Respondent never raised the capacity of his predecessor as a ground for revoking but on the ground that the Appellant father had not used the said land for the purpose which it was granted. The 4th Respondent cannot be allowed to blow hot and cold at the same time. See Kayode v. Odutola (2001) 11 NWLR (Pt. 725) 659 at 668.

It is finally submitted that having regards to the letter dated 21/8/2000 by the 4th Respondent, the entire argument of the 4th Respondent is misleading as a man cannot be seen going against the contents of his own written document. See Ezemba v. Ibeneme (2000) 10 NWLR (Pt. 674) 61 at 74.

Since the 4th Respondent did not deny the fact that the land is jointly owned, he then urged the Court to discountenance the preliminary objection and to allow the appeal.

It is the duty of this Court to begin by the consideration of the notice of preliminary objection before delving into the appeal proper or before consideration of the above issues.

The primary purpose of every preliminary objection is to determine the proceedings in limine (whether on appeal or at first instance) and dispensing if need be, with the need to go into the substance of the suit or appeal as the case may be, in other words, a preliminary objection challenging or attacking the competence of the action or appeal is similar to or likened to a challenge against the jurisdiction or competence of the Court to hear and determine the said action or appeal as the case may be and if not heard timeously at the initial stage may lead to an exercise in futility since the whole proceedings conducted in absence of jurisdiction will be a nullity however well conducted see Madukolu v. Nkemdilim (1962) 2 SCNLR 341, ICON LTD v. FBN LTD. (1995) 6 NWLR (pt. 401) 370, Obi v. Owolabi (1990) 5 NWLR (pt. 153) 702.

Because of the fundamental nature of preliminary objection vis-a-vis the jurisdiction of this Court to hear the appeal or to decline jurisdiction and to dispose it in limine, it is necessary to consider and resolve the preliminary objection raised in the present case first and at the initial stage in order to determine whether or not the appeal is competent and that this Court therefore has the requisite jurisdiction to hear and determine it.

The 4th Respondent had on the 29/1/2018 filed a notice of preliminary objection and urged the Court to strike out the suit of the Appellants. The ground of the objection are as follows ?

a.That the Appellants has no locus standi to institute the case

(b) That the lower Court had no jurisdiction to entertain the case.

The argument of the preliminary objection is reflected and embodied as from pages 3 to 9 of the 4th Respondents brief of argument dated 29/1/2018 and filed same date.

The locus standi or the standing in law to initiate proceedings in Court of law is the legal capacity and the condition precedent to initiate or institute legal proceedings in law Court for the determination of whatever legal rights or obligations being asserted. The determination of the question whether the plaintiff has or had disclosed his standing in law to initiate legal proceedings is quite distinct from the merits of the case. At this stage, it is not necessary to consider whether there is a genuine case on the merits where the plaintiff fails to disclose his standing or capacity to initiate legal proceedings against another suit or action is incompetent and must be struck out. See Owodunni v. Regd. Trustee of CCC (2000) 10 NWLR (pt. 675) 315 at 338 and 357.

By virtue of Sections 6(6)(b) and 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) every person coming to a law Court to invoke his judicial powers, is obliged to disclose his locus standi or legal standing to initiate and maintain as the action. Locus standi of the litigant is a condition precedent for invoking the jurisdiction of the law Court.

The necessary intendment for the condition precedent is to sieve and separate genuine litigants from mere busy bodies or impulsive Don Quizotes who may be more mindful to be seen only to fight other peoples cause against imaginary ‘enemies’. The essence of locus standi rule is to protect the Court from being used as a playground by professional litigants, busy bodies, meddlesome interlopers and cranks who have no real stake or interest in the subject matter of the litigation they pursue. See Bewaji v. Obasanjo (2008) 9 NWLR (PT. 1093) 540, Fawehinmi v. Akilu (1987) 4 NWLR (pt. 67) 97, Olaniyan v. Adeniyi (2007) 3 NWLR (pt. 1020).

In his argument on preliminary objection, the 4th Respondent counsel submitted that from the Appellants’ writ of summons and statement of claim, the Appellants are not the personal representatives of late Benedict Abiola Davies having failed to plead the letter of Administrators of the Estate of Late Abiola Davies.

This submission by learned counsel is nothing to go by. Starting from the records, the Appellants asserted that Mr. Ademola Davies and Mr. Adeola Davies as Appellants are suing for themselves and on behalf of the children of late Benedict Abiola Davies of Ogotun-Ekiti. They led evidence in this regard and also established at the lower Court that they have an interest in the property in dispute as same is family property. See U.B.A. PLC v. SUNDAY UDUSIP (2014) LPELR 23198 (CA) DADI v. GARBA (1995) 8 NWLR (Pt.411) 12, BABAYEJU v. CHIEF ASHAMU (1998) 9 NWLR PT. 567.

It is submitted by 4th Respondent counsel that the inability of the Appellants to plead letter of Administration which appointed them as Administrators of the Estate of the said Benedict Abiola Davies denies them the locus standi in this matter. This is not so. The Appellants being the children of the deceased are personal representatives of the deceased have a locus standi in this suit and I so hold. See Okonyia v. Ikengah (2013) 12 NWLR (pt. 697) 336 at 361.

The 2nd Appellant during cross examination admitted being a biological child of late Benedict Abiola Davies and this issue of Letters of Administration was never raised at the lower Court for same to take a position of prominence on appeal, therefore the 4th Respondent is not allowed by law to change the tone of the case he made at the trial Court since an appeal is simply the continuation of the case put forward at the Court of instance. See Chief Joseph Okon Edem v. Akamkpa Local Govt. (1999) LPELR 10076 (CA) or to aprobate and reprobate. See Edebiri v. Edebiri (1999) 4 NWLR (Pt. 498) 165 at 176.

On the basis of the above, I hold the view that the Appellants have the Locus Standi to institute even when letters of Administration has not been obtained.

The preliminary objection fails and it is hereby dismissed, as the lower Court had the requisite jurisdiction to hear and determine the matter in a claim for declaration of title, the plaintiff succeeds on the strength of his own case and not on the weakness of the defendant’s case and the onus lies on the plaintiff to satisfy the Court on the evidence he adduced that he is entitled to a declaration of title if the plaintiff fails to discharge the onus, his claim fails and his actions is dismissed. See Kodinlinye v. Odu (1935) 2 WACA 336, Abisi v. Ekwealor (1993)6 NWLR (Pt. 302) 43, Salami v. Gbodoolu (1997) 4 NWLR (PT. 449) 377.

Also in a declaration of title to land, the starting point is to identify the land in dispute which must be clearly ascertained. However, the identity of the land would be in issue if and only the defendant in his pleadings disputed either the area of the land or its location. See Ezeudu & Ors. v. Obiagwu (1986 2 NWLR (pt. 21) 208.

However, in this case, issues were not joined on the identity of the land, the identity and extent of the land covered by the Deed of Conveyance dated 2nd day of April 1976 is to the knowledge of the parties. Exhibit AD1 which is the Deed of Conveyance identified the land and the extent. In addition DW2 and DW3 also helped to give oral evidence in Court that one part of the land is owned by the Iloda Community of Ogotun-Ekiti and that River Oshun traverses both land. In addition, title to land or ownership of land may be proved in any of the following five ways

1.By traditional evidence

2. By production of documents of title which are authenticated.

3. By acts of selling, leasing, renting out all or part of the land or farming on it or on a portion of it.

4. By acts of long 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 v. Okumagba (1976) 9-10 SC 227.

5. Proof of long possession and enjoyment of the land.

Each one of these five ways will suffice. The Appellants had in their reliefs amongst others claimed thus:

a.A Declaration that the Claimants and other children of late Abiola Davies are and remain the bona fide and situate at Off Ikeji Road, Ogotun Ekiti and covered by a deed of conveyance dated the 2nd day of April, 1976 and registered as No. 44 at page 44 in volume 8 of the Lands Registry in the Office at Akure and now kept in the Office at Ado Ekiti?.

At the trial of this matter at the lower Court, the Appellant tendered the following documents and admitted in evidence viz.

Exhibit AD1 – Certified True Copy of the Deed of Conveyance dated 2nd April, 1976 registered as No. 44 at page 44 in Volume 8 of the Lands Registry Office at Akure now Ado-Ekiti.