MR. AKINWUMI ALUKO & ANOR v. CHIEF BAMIDELE JAMES ADULOJU & ORS
(2019)LCN/12743(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of February, 2019
CA/EK/38/2017
RATIO
CIVIL LAW: BURDEN OF PROOF
“In civil matters, it is elementary and long settled that, civil cases are proved on the preponderance of evidence or balance of probabilities. Burden of proof is on the party who asserts a fact and has to prove same with cogent and credible evidence for his case not to fail before the burden shifts to the opposing party. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1, ITAUMA V. AKPE-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214 and LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228. A party is not allowed to rely on the weakness of the case of the opposing party, rather on the strength of his own case. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65.” PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
LAND LAW: METHOD TO PROVE OWNERSHIP OF TITLE TO LAND
“The Courts over time, with regard to issue of ownership and title to land, have continued to guide and assist themselves with five (5) recognized methods of proving ownership as enunciated in the locus classicus case of IDUNDUN V. OKUMAGBA 1976 6-10 SC 246 amongst several others in pursuit of doing substantial justice on land matters. The five methods are as follows: 1. Traditional Evidence 2. Document of Title
3. Various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership. 4. Acts of lawful enjoyment and possession of the land and
5. Proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition, own the disputed land. See also the cases of FASORO V. BEYIOKU 1988 2 NWLR PT. 76 261, EZEOKE V. NWAGBO 1988 1 NWLR PT. 72 616 and AUDU OTUKPO V. APA JOHN & ANOR. 2012 LPELR-SC 228/2011.” PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, 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. AKINWUMI ALUKO
2. MR. AJEWOLE ALUKO
(for themselves and on behalf of Aluko Aruwele family of Eisape of Idemo street Ado-Ekiti) Appellant(s)
AND
1. CHIEF BAMIDELE JAMES ADULOJU
2. MR. OLUYE ALUKO
3. MR. OLU BAKARE Respondent(s)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the Judgment of the Ekiti State High Court, Ado-Ekiti, delivered by Hon. Justice A. S. Daramola, Chief Judge, on December 22nd, 2015, wherein the case of the Appellants (the Claimants at the Court below), was dismissed in its entirety and the Counter-claim of the Respondents (the Defendants, Counter-claimants at the Court below) succeeded, save the relief in paragraph 44 (b) that was refused.
The brief gist of the case between the parties as garnered from the printed Record before this Court is that, the Appellants by their forefather named Aruwele, who founded and established the land in dispute are from the Esape household/family, one of the seven (7) families of Idemo, namely, Edemo, Obajio, Eisape, Elegbira, Okunato, Sajowa and Aromojo that make up Idemo Street. That, the entire Ijelu farmland belongs to Idemo Street as a whole and is used by all the members according to the portions shared to each family with boundaries among themselves. The Appellants claimed that their land share boundary with the land of Odolofin farmland, Obajio’s and Edemo Faje family and that the Respondents are not from the Esape’s family as they are not descendants from Aluko Aruwele of Esape family. That, the Appellants have been farming as owners on the land in succession with other members of the family. They registered a layout/survey plan of the land dispute and until June 7th, 2006 when the Respondents trespassed unto the land they occupied in peace. They have tenants on the land and members of the family as well.
Upon continuous trespass, the Appellants filed the suit at the Court below and prayed for the following reliefs:
i. Declaration of title to customary/statutory right of occupancy of a piece of land, situate, lying and being at Ijelu farm land off Ikare Road Ado-Ekiti State which land is particularly described in a proposed residential layout of plan No. ADURPO/24/2003 and dated 3rd day of September 2003 also described in the survey plan mentioned above.
ii. N600,000.00 general damages for trespass committed and still being committed by the defendants on the said piece or parcel of land.
iii. Perpetual injunction restraining the defendants, their agents, servants, or privies from committing further act of trespass on the said piece or parcel of land.
See pages 29-35 of the Record.
The story for the Respondents is as follows:
That, there is no name as Aruwele family in Idemo Street and that all the Ijelu farmland belongs to the Respondents? family, the Edemo family which is the overall head as the remaining six families are under its supervision and control. That they gave the Obajio family a portion of the land which borders the land in dispute, Odolofin shares boundary that, the Aruwele family is on the land as a tenant with the consent of the Edemo family and that each family has its distinct family land and no member of Esape family or Aruwele ever farmed on the land in dispute. That, the 1st Appellant?s father, Aluko Obiri, was a labourer/palm wine tapper to Edemo Faje?s father, Alexander Olusomoka Faje, who ejected the Appellant?s father from the land and he later went thereon after the death of the said Alexander. That, the Appellants are not members of the Respondents’ family and the former were chased out of the land in 2003 in which year the land was laid out, when they were found to be selling and allocating portions thereof to people as owners thereof. Edemo Faje was the first to settle on the land. They therefore Counter-claimed against the Appellants thus:
Paragraph 55
a. A declaration that Edemo family is entitled to a statutory right of occupancy in respect of the parcel of and (sic) situate, lying and being at Ijelu farmland, off Ikare Road, Ado Ekiti.
b. A sum of N1million as general damages for the unlawful acts of trespass committed and still being committed by the plaintiffs on the defendants? aforesaid parcel of land.
c. An order of perpetual injunction retraining (sic) the plaintiffs, their agents, servant or privies from further committing acts of trespass on the defendants? family land.
See pages 39-44 of the Record.
As afore stated, the Appellants? case was dismissed and being therefore dissatisfied, they have approached this Court with their Notice of Appeal as amended with nine (9) grounds A, B, C, D, E, F, G, H, and I, dated September 29th 2017, filed October 17th, 2017 and deemed on October 17th 2018.
In compliance with the Rules of this Court, parties filed and exchanged their briefs of argument. The Appellants? brief, dated March 1st, 2018, filed 5th of March and deemed as properly filed and served was settled by Mr. Taiwo Ogunmoroti Esq. whilst the Respondents’ dated October 26th 2018, filed on October 30th, 2018 and deemed as properly filed and served on November 1st, 2018, to which the Appellants filed on November 13th, 2018, a Reply of even date. The Respondents’ brief was settled by Mr. Rotimi Bunmi Adabembe Esq.
APPELLANTS’ ISSUES SUBMITTED FOR DETERMINATION
1. Whether from the pleadings and available evidence on record, the Appellants have not proved their case as to entitle them to judgment and whether the Respondents ought not to have proved their counter claim (Grounds 1, 3, 4 and 6).
2. Whether the Appellants ought to have been restrained from the land for acts of trespass when the learned trial judge held that they are not and whether the Respondents ought not to have prayed for forfeiture in their counter-claim rather than trespass (Grounds 5, 7 and 8).
3. Whether the Edemo family is a juristic person that can benefit from a declaration in respect of the land in dispute.
RESPONDENTS’ ISSUES FOR DETERMINATION
The Appellants Issues were adopted.
On a careful consideration of the Issues submitted, one is satisfied that this appeal shall be justly and fairly determined on Issue 1 submitted by the Appellants. For that reason, Issue 1 is hereby adopted for the determination of this appeal.
APPELLANTS’ SUBMISSION
The learned Counsel for the Appellants, Mr. Taiwo Ogunmoroti Esq., submitted thus:
That, the Appellants proved their case at the Court below by traditional method of ownership and acts of long possession over the land numerous and positive to warrant an inference that the Appellants are bona fide owners and referred to paragraphs 12-28 and 31 of the Appellants’ amended pleadings and the testimonies of the Appellants’ witnesses. In support, he cited amongst others, the cases of AJIBULU V. AJAYI 2004 11 NWLR PT. 885 P. 458, AJIBOYE V. ISHOLA 2006 13 NWLR PT. 998 P. 628 MBANI V. BOSI 2006 11 NWLR PT. 991 P. 400, IDUNDUN V. OKUMAGBA 1976 10 SC 227, OWHONDA V. EKPECHI 2003 17 NWLR PT. 849 P. 326 and MKPINANG V. NDEM 2013 4 NWLR PT. 1344 P. 302.
He argued that, the entire Oisape family was ad idem on the ownership of the land been conceded to the Appellants’ Aruwele family and that, since the matters were from time immemorial, minor contradictions are expected. That, the contradiction on the side of the Respondents are major as their pleadings differed from Exhbit C which showed the land they claim to be an island and Exhibit D which is spent and obsolete, had no boundary names and therefore, they have no land off Ikare Road Ado-Ekiti. Consequently, the Court was wrong to have relied on it he contended and cited in support, the cases of BICHI V. HALADU 2003 14 NWLR PT. 841 644 and ABUBAKAR V. YAR’ADUA 2008 19 NWLR PT. 1120 P.1. He argued further that, the Respondents failed to plead and prove the founder and the original owner of the land, how the land was founded and the intervening owners were not mentioned. He cited the cases of UKAEGBU V. NWOLOLO 2009 3 NWLR PT. 1127 P. 194, YUSUF V. ADEGOKE 2007 11 NWLR PT. 1045 P. 332 and OYEDEJI V. OYEYEMI 2008 6 NWLR PT. 1084 P. 484.
He submitted that, the learned Court was wrong to have found on one hand, the Appellants as trespassers and on the other not to be, therefore, not consistent and cited in support the cases of ODUTOLA HOLDINGS LTD. V. LADEJOBI 2006 12 NWLR PT. 994 P. 321 and UMANA V. ATTAH 2004 7 NWLR PT. 871 P. 63. In that regard, he argued that, the Counter-claim should have been in forfeiture and not trespass and cited in support the case of SALAMI V. LAWAL 2008 14 NWLR PT. 1108 P. 546. Further, he argued that, the Court was wrong to not have pronounced upon the issue of forfeiture which was raised before it and that such failure is fatal and cited the case of G & T INVEST LTD. V WITT & BUSH LTD. 2011 8 NWLR PT. 1250 P. 500 in support. He contended that, the declaration made in respect of the Edemo family which is not a juristic person and incapable of owning land and since the Respondents did not claim any specific land, cannot hold and must all collapse. In support, he cited the cases of ADEAGBO V. WILLIAMS 1998 2 NWLR PT. 536 P. 120 and AKINOLA V. UNILORIN 2004 11 NWLR PT. 885 P. 616. Therefore, the Counter-claim should have been dismissed and urged this Court to so do. In conclusion, the learned Counsel further urged that, the appeal be allowed and the Respondents’ Counter-claim be dismissed with substantial costs.
RESPONDENT’S SUBMISSION
Mr. Rotimi Adabembe Esq., for the Respondent, submitted as follows in response:
That, the evidence of the deceased 1st Appellant and their witness on boundary men did not contradict the facts pleaded and contained in the amended Statement of Claim in paragraph 5. That, the 1st Appellant’s evidence that Pa Aruwele founded the land at Ijelu contradicted their pleadings and was unacceptable. He submitted therefore that, the Appellants failed to discharge the burden of proof on them as they did not provide cogent, clear and satisfactory evidence in proof of their case and in support cited the cases of DAVID FABUNMI V. ABIGAIL ADE AGBE 1985 1 NWLR PT. 2 299, ONIBUDO V. AKIBU 1982 7 SC 60, OLAOTI V. BALOGUN 1996 4 NWLR PT. 442 P. 44 and ECHI V. NNAMANI 2000 8 NWLR PT. 667 P. 1. He noted that, all through the testimony of the Appellants, particularly, PW1, Chief Michael Oloopo Ojo, it was not stated that the land in question was conceded to the Appellants? family alone amongst the rest of the Esiape family members which is curious, given also the survey plan which was in the name of Aluko Aruwele. Other survey plans in respect of the Esiape family bear the family name, he added. No acceptable explanation was given for the difference in the Aruwele survey plan in the face of the evidence that the land is that of the Esiape family.
Further, he argued that, there was need for acceptable explanation how the land which was founded by Aruwele later was transmitted to the family of Esiape particularly when the Appellants’ witnesses testified that only the Aruwele family has farmed on the land and no other member of the Esiape family. He cited in support the cases of AKINSUROJU V. JOSHUA 1991 4 NWLR PT. 187 542 SC, AJUWA V. ODILI 1985 9 SC 17 and FALOMO V. ONAKANMI 2005 11 NWLR PT. 935 126. He submitted therefore that, the Appellants and the Esiape family have no land at Ijelu farmland. That, as the Appellants have failed to establish traditional evidence and cannot use acts of ownership and long possession for their case and cited the cases of UKAEGBU V. NWOLOLO 2009 3 NWLR PT. 1129, OSENI V. BAJULU 2010 ALL FWLR PT. 511 813 and ODUNUKWE V. OFOMATA 2010 18 NWLR PT. 1225 404. The Counter-claim of the Respondents that Edemo Faje was the 1st settler on Ijelu farmland was supported by PW1, the projected head of the Esiape family by the Appellants and that the 1st Respondent succeeded as Edemo and they defended the suit in a representative capacity. That, the testimonies of the Respondents remained consistent also as regards their boundary men. In that wise, the Respondents established their case and were entitled to the judgment in their favour he submitted and cited in support the case of SALISU V. MOBOLAJI 2016 15 NWLR 1535 242. On Exhibit C, the proposed residential layout of the Edemo family at Ijelu approved by the Ekiti State Ministry of Land, Urban and Regional Planning and Exhibit D, the Perimeter Survey Plan of the land, the learned Counsel submitted that, both sides know the identity of the land in dispute.
The Court refused to grant the relief on trespass because it was the forefathers of the Respondents that allowed the forefathers of the Appellants unto the land in dispute and was right to order perpetual injunction against the Appellants in respect of the land. That, there was no self-contradiction therein as the injunction is to restrain the Appellants from further selling and dealing with the land having been adjudged not to be the owners and cited in support the case of RT. HON. ROTIMI CHIBUIKE AMAECHI V. INEC & 2 ORS 2008 5 NWLR PT. 1080 227 and ATOLAGBE V. SHORUN 1985 1 NWLR PT. 2 360. He argued that, the Respondents at no time pleaded that the Appellants were their tenants and so needed not to ask for forfeiture against them. He submitted that, the omission of the word, land, could not allow the Respondents’ counter-claim hang in the air. Even where it is not properly couched and without clarity, the Court had sought and done substantial justice as it is the law and in support cited the case of OBANTA COMMUNITY BANK LIMITED V. OLUFEMI KAYODE AJAYI & 2 ORS 2001 33 WRN 119. In conclusion, the learned Counsel urged that this appeal be dismissed and the Judgment of the Court below upheld.
THE COURT
Having very carefully considered the submissions made by the parties, the Record herein and other processes submitted in respect herein, one proceeds thus in the resolution of the singular Issue as adopted and reproduced hereunder for ease of reference:
SOLE ISSUE
Whether from the pleadings and available evidence on record, the Appellants have not proved their case as to entitle them to judgment and whether the Respondents ought not to have proved their counter claim.
The Courts over time, with regard to issue of ownership and title to land, have continued to guide and assist themselves with five (5) recognized methods of proving ownership as enunciated in the locus classicus case of IDUNDUN V. OKUMAGBA 1976 6-10 SC 246 amongst several others in pursuit of doing substantial justice on land matters. The five methods are as follows:
1. Traditional Evidence
2. Document of Title
3. Various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
4. Acts of lawful enjoyment and possession of the land and
5. Proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition, own the disputed land.
See also the cases of FASORO V. BEYIOKU 1988 2 NWLR PT. 76 261, EZEOKE V. NWAGBO 1988 1 NWLR PT. 72 616 and AUDU OTUKPO V. APA JOHN & ANOR. 2012 LPELR-SC 228/2011.
It is must be noted that the above stated ways are separate and independent establishment of one of them shall suffice for success in a claim. See the case of EKPO V. ITA 1932 11 NLR 68.
When a Claimant fails to establish one of the five (5) ways, he is not permitted to rely on long possession or any act of ownership to prove title. See the cases of BALOGUN V. AKANJI 1988 1NWLR PT. 79 301, IBENYE V. AGWU 1998 11 NWLR PT. 574 372. The apex Court per Kutigi JSC, as he then was, had this to say in that regard in the case of REGISTERED TRUSTEES OF THE DIOCESE OF ABA V. NKUME 2002 FWLR PT. 90 1270:
“It is settled law that where a party’s root of title is pleaded as for e.g grant a sale or conquest etc. that root of title has to be established first and any consequential acts following thereon can properly qualify as acts of ownership. Where the title pleaded has not been proved, then it will unnecessary to consider acts of possession for the acts then become no longer acts of possession but acts of trespass.
Therefore, a Claimant has to prove his case and as required by the law.
In civil matters, it is elementary and long settled that, civil cases are proved on the preponderance of evidence or balance of probabilities. Burden of proof is on the party who asserts a fact and has to prove same with cogent and credible evidence for his case not to fail before the burden shifts to the opposing party. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1, ITAUMA V. AKPE-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214 and LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228.
A party is not allowed to rely on the weakness of the case of the opposing party, rather on the strength of his own case. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65.
In a case for declaration of title to land in particular, such as the instant, the onus was on the Appellants to establish their claim by preponderance of evidence, credible and cogent. As the Claimants therefore, they had to satisfy the Court below that, upon the pleadings and evidence adduced, they were entitled to the declaration sought. See the cases of ADEWUYI V. ODUKWE 2005 ALL FWLR PT. 278 1100,IRAGUNIMA V. RSHPDA 2003 FWLR PT. 169, CLIFFORD OSUJI V. NKEMJIKA EKEOCHA 2009 LPELR-2816 SC and SOLOMON ECHANOM V. MRS PHILOMENA OKOTIE & ORS 2011 LPELR-CA/B/247/2009.
From painstakingly going through the Record before this Court, it is seen that the Appellants claimed through their forefathers particularly, Aluko Aruwele, as the one who founded and established the land in dispute. In other words, their reliance was traditional/historical evidence in proof of their ownership of the land. They also asserted that, there were acts of ownership thereon and so were entitled to judgment. The law with regard to proof based on traditional evidence is clear and equally settled to the effect that, a party relying on it cannot merely plead that he and his predecessors owned and possessed the land from time immemorial. The party must further plead and prove the facts relating to:
Who founded the land, how it was founded and details of intervening owners or the person or persons on whom the title in respect of the land devolved since its founding and through whom the party claims.
See the cases of ODI V. IYALA 2004 8 NWLR PT. 875 283, ANYANWU V. MBARA 1992 5 NWLR 386 SC and EZEWUSIM V. OKORO & ANOR. 1993 5 NWLR PT. 294 478. Where the line of succession is not satisfactorily traced by the Claimant, his claim must be rejected by the Court as there must be no gap up to the Claimant who is claiming. See the cases of ALADE V. AWO 1975 4 SC 215, KALIO V. WOLUCHEM 1985 1 NWLR PT. 4 616, MOGAJI V. CADBURY NIG. LTD. 1985 2 NWLR PT. 7 393.
I shall proceed by considering the finding of the Court in its evaluation of the evidence before it. It stated in that regard as follows and correctly:
“Having examined their pleading and evidence led on same, my answer is unhesitatingly no. There is no shred of evidence from the plaintiffs on their apex ancestor who founded the land, the state of it when it was founded. The bald assertion that they inherited the land from their father Aluko Aruwele who had used the land from time immemorial did not pass that test.”
See page 190 of the Record.
One agrees with this finding given the clear afore stated position of the law with regard to traditional evidence. Further, on whether the Appellants discharged the onus of proof upon them as they ought, the Court found contradictions in respect of the land being family land of the Eisape family. The evidence it would appear pointed to personal ownership of the children of Aluko Aruwele. On page 191 of the Record, it found non-complimentary to the Appellants? case when PW1, Chief Eisape, testified that, the land was that of Pa Aluko Aruwele, there was no evidence on partition and especially because other families of Idemo, namely, Edemo, Obajio, Eisape, Elegbira, Okunato, Sajowa and Aromojo all have their different parcels of land away and apart from Ijelu farmland, the disputed land. It found thus on pages 191-193 and 194 of the Record:
“The unrefuted evidence in this matter is that all Eisape family members save, the plaintiffs, farm at different farmlands at Eyiyu and Oke Ureje farmlands where the family lands are located;
There is evidence from the plaintiffs that Eisape family layout plan was prepared in the name of that family. The plaintiffs instituted this action on behalf of Aluko Aruwele family of Eisape family and made a layout plan over the land in dispute not in the name of Eisape family which they testified is the owner of the land but in the name of their father Aluko Aruwele;
PW1 admitted under cross-examination that he was not a party to this plaintiffs’ legal action. Now, this witness was the head of the Eisape family?
There is no shred of evidence before me in this matter that the Eisape family they claimed to be owners of the land in dispute at any time partitioned Eisape family land and gave the land in dispute to the plaintiffs’ stock of that family.
There is unrefuted evidence from the defendants that Aluko the father of the plaintiffs was expelled from the land during the life time of Olusomoka Louis Faje but later found his way back after the said Olusomoka Faje died;
The vaunted ownership of the land in dispute from time immemorial which time frame Adeusi Adeleye (PW2) put at 42 years cannot by any stretch of imagination or logic be regarded as time immemorial in land ownership under customary land tenure.”
The Court found in support of the Respondents and rightly in my view, and from the evidence of both sides that, only the Alukos, the Appellants, members of the Eisape family farmed on the land in dispute, even PW1, Chief Eisape did not as his farm is where the Eisape?s farmland is. The Court stated thus in that regard on page 193 and rightly in my opinion, humbly:
“In my respectful view this is a strong point in favour of the defendants that their grandfather gave the plaintiffs? father land to farm for food crops.why did the plaintiffs prepared (sic) the Layout of the land in the name of their father Aluko Aruwele and not that of Eisape family of which they claimed to be members?”
It further found and held as follows:
“I have highlighted contradictions and inconsistencies in evidence of the plaintiffs in my review of the matter. I daresay those contradictions and inconsistencies have rendered their evidence of ownership of the land in dispute totally unreliable.
In my candid view, it is not sufficient for the plaintiffs to plead and lead evidence of possession in this action for damages for trespass and injunction when the real issue in contention between them..is the ownership of the land?.they as of necessity must prove their title by preponderance of credible evidence in order to succeed. The plaintiffs woefully failed to discharge that onus upon (sic) in this matter.”
See page 195 of the Record.
It therefore drew the following conclusion and correctly in my considered view:
“Having considered the case for both sides of the divide and put the evidence on the invisible scale of justice, I have no hesitation in coming to the conclusion that the evidence of facts in favour of the defendants in this matter far out-weighed that in favour of the plaintiffs who to all intents and purposes were farming on the land in dispute based on the permission earlier given to Aluko their father to cultivate food crops on the land.
See pages 195-196 of the Record.
One is able to agree with the above findings given the Record before this Court and consequently with the conclusion reached therein. The evidence as contained in the Record did not preponderate in the Appellants? favour. Therefore, the first part of the sole Issue is resolved in favour of the Respondents. There could correctly be no finding for trespass in favour of the Appellants as they were not found to ever be in exclusive possession of the land and the title of the Respondents was found to be better than theirs. Exhibit 8, the Aluko Aruwele family Layout, by the Appellants as found was therefore of no moment as it could not confer ownership when the Appellants? failed to prove their ownership of the land in question.
It is necessary at this point to briefly note that throughout the whole gamut of the Record, the practice of customary tenancy in my considered and humble view cannot be said to be what transpired between the Respondents’ forefathers and the Appellants’. From pages 105-111, 118-130 of the Record, one cannot find that there was the relationship of customary tenancy between the Appellants and the Respondents families. Therefore, the submission of the learned Appellants’ Counsel in that light with respect to the issue of forfeiture cannot hold. What one finds as contained in the Record before this Court, is a case of the Respondents’ family granting Aluko Aruwele, the forefather of the Appellants’ permission to use some portion of the land as he was working for the family. One fails to see the point being argued by the Appellants’ Counsel that it was fatal for the Court not to have made a pronouncement on the issue of forfeiture, therefore.
One is further unable to uphold the submission of the learned Counsel for the Appellant on the juristic or non-juristic personality of the Edemo family of the Respondents. The argument that reliefs B and C are hanging and with respect to relief A in my view and humbly cannot defeat the overall findings and conclusion reached by the Court below given the evidence before it. As correctly stated by the Court and as seen in the Record through the proceedings, the Appellants’ suit was in respect of a particular piece and portion of land, the identity of which was not in issue, nor in doubt or unknown to the parties in spite of the arguments between them, none of them mistook it for another land or in another area and so the subject in contention between the parties was clear without any ambiguity whatsoever, the parties’ pleadings and the evidence remain before the Court. See pages 47, 67,69,72, 78, 85-86, 106,119 and 125 of the Record- To argue or suggest that the Respondents’ Counter-claim was inelegantly put is a different matter entirely and that would not disentitle a winning party in my considered view.
With regard to the second part which pertains to the Respondents’ Counter-claim, in its evaluation, the Court below found that, the Respondents defended and counter-claimed through traditional evidence, proof of possession of connected or adjacent land in circumstances rendering it probable that they own the land in dispute as the testimonies of the parties was that the land in dispute is bounded by Edemo family land. See page 48 of the Record. In my considered view and humbly, there was preponderance of evidence and balance of probabilities in favour of the Respondents given the totality of the evidence before the Court. One agrees with the position of the Court when it refused to find the Appellants as trespassers for the reason that the Respondents’ grandfather at one time allowed the Appellants’ grandfather to cultivate some portion of the Respondents’ land. However, as seen in evidence the Appellants through their action one time or the other and by their suit at the Court below asserted and made a claim inconsistent with the ownership of the Edemo land. Therefore where such claim or assertion is found wrong or not proved as herein, the Court as it did could make an order to perpetually restrain the Appellants from entering the Respondents’ land.
In the result, the Appellants’ appeal cannot be allowed, it therefore fails and is hereby accordingly dismissed. The judgment of the Ekiti State High Court delivered by Hon. Justice A. S. Daramola, Chief Judge, on December 22nd 2015 is hereby affirmed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have had the advantage of a preview of the judgment just delivered by my learned brother, E. O. WILLIAMS-DAWODU, JCA and, I agree that the appeal fails and is hereby accordingly dismissed.
The judgment of the Ekiti State High Court delivered by Hon. Justice A. S. Daramola, Chief Judge, on December, 22nd 2015 is hereby affirmed.
PAUL OBI ELECHI. J.C.A.: I agree.
Appearances:
Taiwo Ogunmoroti, Esq. with him, O. Fagbohun, Esq.For Appellant(s)
Rotimi Adubembe, Esq. with him, Helen Olanipekun, Esq. and Kehinde Bayode, Esq.For Respondent(s)
