MR. BADE AWOSUNLE & ANOR V. CHIEF (MRS.) CHRISTIANAH FAGBEMI & ANOR.
(2011)LCN/4988(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of December, 2011
CA/B/232/2007
RATIO
BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF IN A CIVIL SUIT; WHETHER THE BURDEN OF PROOF IN A CIVIL SUIT IS STATIC
The law is firmly settled that in a civil suit, the burden of proof lies on the person against whom the judgment of the court would be given if no evidence were led on either side. However the burden of proof of particular facts in a civil suit is not static. The initial burden is on the person who asserts a particular fact. Once that fact is established to the satisfaction of the court, the burden shifts to the other party and so on until all the issues in controversy between the parties have been disposed of. See Sections 135, 136, 137 and 139 of the Evidence Act. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
TITLE TO LAND: WHETHER A CLAIMANT IN AN ACTION FOR DECLARATION OF TITLE TO LAND MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE AND NOT ON THE WEAKNESS OF THE DEFENCE ; WHETHER A COUNTER CLAIMANT HAS THE SAME BURDEN
… it is equally trite that in a claim for declaration of title to land a claimant must succeed on the strength of his own case and not on the weakness of the defence unless there is an aspect of the defendant’s case that supports the claimant’s case. See: Mogaji V. Cadbury Nig. Ltd. (1985) 2 NWLR (7) 393 at 429 D – E; Kodilinye V. Odu (1936) 2 WACA 336 at 337; Onwugbufor V. Okoye (1996) 1 NWLR (424) 252; Shittu V. Fashawe (2005) 14 NWLR (945) 671. A counter claimant has the same burden, his claim being separate and distinct from the main claim. See: Kyari V. Alkali (2001) 5 SC (Part II) 192 at 202; Onwuka V. Ediala (1989) 1 NWLR (96) 182; (1989) 1 SC (Part II) 1. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
TITLE TO LAND: THE WELL-ESTABLISHED METHODS OF PROVING TITLE TO LAND
The well-established methods of proving title to land were stated in Idundun V. Okumagba (1976) 9 – 10 SC 227. They are: (a) By traditional evidence. (b) By production of documents of title duly authenticated and executed. (c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. (d) By acts of long possession and enjoyment. (e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
TITLE TO LAND: WHETHER A CLAIMANT TO A LAND DISPUTE IS REQUIRED TO PROVE ALL THE MODES OF PROOF OF TITLE
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them. It is the contention of the appellants that the respondents having failed to prove their root of title through traditional history, the learned trial Judge ought not to have considered any other evidence led by them in proof of their claims. In Owhonda V. Ekpechi (2003) 9 – 10 SC 1 at 24 lines 17 – 26 the Supreme Court held thus: “The law is that a party to a land dispute may plead and prove his title in any of the five recognised ways. All the modes of proof of title are independent and none is superior to the other. So where traditional evidence fails, a party may still rely on any of the other four modes to prove title to the land in dispute.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
EVIDENCE OF TRADITIONAL HISTORY: WHETHER A PARTY CAN RELY ON ACTS OF POSSESSION AND OF OWNERSHIP WHERE EVIDENCE OF TRADITIONAL HISTORY HAS FAILED
In the case of Nkado & Ors. V. Obiano & Anor. (1997) 5 NWLR (503) 31 at 54 – 55 H – D, His Lordship, Onu, JSC, in the lead judgment considered what in his view was the narrow interpretation of the decision in Mogaji V. Cadbury (Nig.) Ltd. (1985) 2 NWLR (7) 393 to the effect that where a possession rests on traditional history that has failed, the acts of possession become irrelevant and should not be considered in granting a declaration of title. His Lordship was of the view that the correct position was as stated by Adio, JSC in Akunyili V. Ejidike (1996) 5 NWLR (449) 381 where His Lordship held: “The court below (the Justice who wrote the dissenting judgment) thought that proof of a claim for declaration of title by means of traditional evidence was mutually exclusive with other means of proving the claim. A plaintiff may adopt one or more of the ways of proving ownership, for example, traditional evidence or by means of evidence of acts of ownership or possession. The two or one or the other of them may be sufficient to sustain the claim. It is only where a plaintiff fails to prove his case by means of traditional evidence and also fails to establish it by means of evidence of acts of ownership and possession when these were the means pleaded and relied upon by him that his claim will be dismissed.” (Underlining mine) His Lordship, Onu, JSC referred to his views expressed at page 406 of the report where he stated: “Plaintiff could still succeed in an action for declaration of title on acts of exclusive possession and of ownership even where traditional history is entirely lacking.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
BURDEN OF PROOF: WHETHER ONCE IT IS PROVED THAT ORIGINAL OWNERSHIP OF PROPERTY IS IN A PARTY, THE BURDEN OF PROVING THAT THE PARTY HAS BEEN DIVESTED OF THE OWNERSHIP RESTS ON THE OTHER PARTY
It was held in the case of Oyovbiare V. Omamurhomu (2001) FWLR (68) 1229 relied upon by learned counsel for the appellants that once it is proved that original ownership of property is in a party, the burden of proving that that party has been divested of the ownership rests on the other party. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. MR. BADE AWOSUNLE
2. CHIEF JOSEPH AKINBINU AKINNAWONU Appellant(s)
AND
1. CHIEF (MRS.) CHRISTIANAH FAGBEMI
(Suing by her Attorney CHIEF ALFRED ADESOJI ADEDINSEWO)
2. CHIEF EBUN FATUROTI Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State, sitting at Ondo delivered on 18/4/2007 granting the claims of the 1st plaintiff (1st respondent in this appeal) and dismissing the counter claim of the 1st defendant (1st appellant herein).
By a Writ of Summons dated the 30th day of July, 2004 and Statement of Claim dated the 23rd day of August 2004 filed before the Ondo State High Court, Ondo Division the 1st respondent, claimed the following reliefs against the appellants:
1.”A declaration that the plaintiff is the person entitled to assignment of Certificate of Statutory Right of Occupancy and/or use of land situated and lying at Abusoro/Ondo/Ife Road, Ondo measuring approximately 1, 250 hectares, which is more particularly described and edged Red on the survey plan no. JOE/1992/ dated 11th December 1986 prepared by J. Olasehinde Esan, Licensed Surveyor with Certificate of Occupancy registered in Ondo State Registry of Deed Akure on the 15th day of March 1991.
2. Perpetual injunction restraining the defendants, their servants, agents or privies from entering or committing further acts of trespass on the land.
3. One Hundred Thousand Naira (N100, 000.00) only as general damages for acts of trespass of the defendants on the said land.”
The appellants filed a Joint Statement of Defence and 1st defendant’s counter claim dated the 17th day of September 2004. The 2nd respondent was subsequently joined as co-plaintiff. The writ of summons and statement of claim were amended accordingly. In the Amended Statement of Claim dated 5/5/06, the respondents sought the declaration in relief 1 in favour of the 1st respondent. The appellants also amended their pleading and in their Amended Statement of Defence dated the 15/9/06 sought the following reliefs:
1. “An order setting aside any Deed of Assignment issued by the 2nd plaintiff in favour of the 1st Plaintiff and/or any other instrument whatsoever obtained by the Plaintiffs and/or on their behalf by any person howsoever for being irregularly issued and/or obtained for want of entitlement to such instrument and/or instruments over the land in dispute.
2. An Order setting aside the Certificate of Occupancy obtained by the / plaintiff on the land in dispute for being irregularly issued and/or obtained for want of the 2nd Plaintiff’s entitlement to the Certificate of Occupancy over the land in dispute.
3. Declaration that the 1st Defendant is the person entitled to the grant of Statutory Right of Occupancy over the parcel of land measuring approximately 22 1/2 plots situate tying and being at Ogbe Area, KM 5 Ondo-Ife Road, Ondo which land is bounded as follows:
1. On the Right Side by 2nd Defendant’s Land
2. On the Left Side by Abusoro Road
3. At the Front by Abusoro Road
4. At the Back by John Afolabi Adenika’s Land
4. N225, 000.00 (Two Hundred and Twenty-Five Thousand Naira) only being specific and general damages for trespass committed by the Plaintiffs on the said land.
5. An order of injunction restraining the Plaintiffs, their assigns, servants, agents, and anyone whosoever claims through them from committing trespass or further acts of trespass on the land in dispute and/or dealing with the land in dispute in any manner.”
The respondents filed a defence to the 1st appellant’s statement of defence and counter claim dated 4/10/06. After the completion of pleadings, the case proceeded to trial. At the conclusion of the trial, the learned trial Judge in a considered judgment delivered on 18/4/07 dismissed the 1st appellant’s claims and granted the claims of the respondents. The appellants being dissatisfied with the decision filed a notice of appeal containing nine grounds of appeal.
The case of the respondents at the court below was as follows:
The 1st respondent purchased the land in dispute, which is situate along Ondo/Ife Road, Ondo from the 2nd respondent who purchased same from the Akingbesote family of Ondo. Their case was that Akingbesote (who later became known as Chief Lisa Ifore Akingbesote) inherited the land from Losan through his maternal side. That Losan also begat the father of the 2nd appellant.Akingbesote exercised all rights of possession on the said parcel of land. The 2nd respondent’s father, Chief Jomu James Akinnawo sold the land farmed upon by Chief Akingbesote to one Chief Opotu Akinrele Akintoye (hereinafter referred to as Chief Akinrele). When Chief Akingbesote heard of the sale, he reported the case to the Osemawe of Ondo who referred the matter to Chief Lisa Fawehinmi for adjudication. As a result of the arbitration, the 2nd appellant’s father was ordered to return the purchase price to Chief Akinrele. He could not afford to do so. It was therefore decided that Chief Akingbesote should refund the purchase price to Chief Akinrele who in turn gave the original purchase agreement between him and the 2nd appellant’s father (Exhibit K) to Chief Akingbesote. The outcome of the arbitration was tendered in evidence as Exhibits J and J1. Exhibit J is the English translation of Exhibit J1. The respondents’ case was that the land in dispute forms part of the land repurchased by Chief Akingbesote from Chief Akinrele. Part of the land in Exhibit K was also sold to one Chief Odunwo Akingbulue.
The case of the appellants on the other hand was that the land in dispute is situate at Abusoro, along Ondo/Okeigbo/Ife road and forms portion of a large parcel of land founded by the 2nd appellant’s ancestor, Losan. The land devolved from Losan through his descendants to the 2nd appellant who sold same to the 1st appellant. That Chief Akingbesote through whom the respondents claim was a customary tenant to the 2nd appellant’s family on another portion of the family land. After the death of the 2nd appellant’s father, Chief Jomu James Akinnawo and Chief Akingbesote, Chief Akingbesote’s children allegedly broke into the 2nd appellant’s land and alienated large parcels thereof to several persons without the consent or authority of the 2nd appellant’s family. When the 2nd appellant’s family noticed the trespass, they challenged them, as a result of which the principal members of the Akingbesote family entered into agreements with the family undertaking to repay the family for land wrongly sold to various individuals. The agreements were admitted in evidence as Exhibits M and N respectively. The respondents however claimed that after executing Exhibits M and N they discovered that the land comprised in those agreements was the same land that Chief Akingbesote re-purchased from Chief Akinrele. They therefore instructed their solicitor to write to the 2nd appellant demanding a refund of the money paid to him in respect of Exhibits M and N. Two letters were written. They were admitted in evidence as Exhibits L and L1. The 2nd appellant denied receiving the letters. The appellants contend that the land in dispute is a portion of the larger parcel of land trespassed upon by the Akingbesote family.
The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant formulated four issues as follows:
1. Whether the trial court was right in placing the onus of proof of the identity of the land allegedly retrieved by Chief Akingbesote from Chief Opotu Akintoye Akinrele on the appellants. Grounds 2.
2. Whether the trial court was right when it granted the respondents’ claims against the appellants and dismissed the 1st appellant’s counter claim against the respondents. Grounds 1, 3, 4, 5, & 8.
3. Whether in the circumstances of this case, it was necessary for the 2nd appellant to apply for an Order of forfeiture of the customary tenancy of Akingbesote family before the claims of the 1st appellant could succeed. If the answer to the above is in the affirmative.
Whether it was proper for the trial court to have raised the issue of non-forfeiture of the customary tenancy of Akingbesote family suo motu without affording parties the opportunity to address it on the issue. Grounds 6 & 7.
4. Whether the trial court properly evaluated the evidence placed before it. Ground 9.
The respondents also formulated four issues for determination thus:
1. Whether the trial court raised the issue of forfeiture of customary tenancy in this case suo motu and thereby occasioned a miscarriage of justice to the appellants.
2. Whether the trial Judge was right when he granted the respondents’ claims against the appellants and dismissed the 1st appellant’s counter-claim against the respondents.
3. Whether the appellate court can interfere with findings of facts made by the trial court.
4. Whether the land in dispute forms part of the land adjudicated upon by Chief Lisa Fawehinmi and if the answer is in the affirmative, whether the 2nd Appellant had any land he could sell to the 1st appellant.
At the hearing of the appeal on 10/10/2011, Thompson Akinyemi, learned counsel for the appellants adopted and relied on the appellants’ amended joint brief of argument dated 31/1/2011 and amended reply brief also dated and filed on 31/1/2011. Both briefs were deemed properly filed pursuant to an order of this court made on 10/3/2011. He urged the court to allow the appeal. The respondents, although duly served with hearing notice through their counsel on 6/10/2011, were absent at the hearing and were not represented by counsel. However, having filed an amended joint brief of argument dated and filed on 17/3/2011, they are deemed to have argued the appeal pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules 2011.
I adopt the issues formulated by the appellants for the resolution of this appeal. Issues 1 and 2 will be considered together.
Issues 1 & 2
Whether the trial court was right in placing the onus of proof of the identity of the land allegedly retrieved by Chief Akingbesote from Chief Opotu Akintoye Akinrele on the appellants.
Whether the trial court was right when it granted the respondents’ claims against the appellants and dismissed the 1st appellant’s counter claim against the respondents.
In support of the first issue, learned counsel for the appellants submitted that in their pleadings as well as their evidence at the trial, the respondents admitted the title of the 2nd appellant to the land in dispute traced through his ancestors from Losan to Akintirin and from Akintirin to Chief Jomu James Akinnawo, the 2nd appellant’s father. He noted that the respondents however claimed that Chief Akingbesote through whom they traced their title descended from Losan through his maternal side and inherited the land in dispute, which his children conveyed to the 2nd respondent who subsequently assigned it to the 1st respondent. He submitted that the appellants strongly contested the assertion that Chief Akingbesote was related to the 2nd appellant’s family and contended that he was an Isakole (tribute paying) customary tenant on the 2nd appellant’s family land. He submitted further that although the learned trial Judge found that the respondents failed to prove that Chief Akingbesote was related by blood to Chief Jomu James Akinnawo, he proceeded to hold that if the respondents were able to prove that Chief Jomu Akinnawo sold the land in dispute to Chief Opotu Akinrele and that Akingbesote repurchased the land from Chief Akinrele, then the respondents’ case would succeed. He noted that it was the appellants’ contention that the land sold to Chief Akinrele and repurchased by Chief Akingbesote is on the left hand side of Abusoro Road when facing Ondo/Ife Road, while the land in dispute is on the right hand side of the road facing Ondo/Ife Road from Abusoro Road. He submitted that the respondents failed to give evidence of the exact location of the land sold to Chief Akinrele and further that PW3 and PW4 admitted the appellants’ position as to the location land in dispute vis-a-vis the land sold to Chief Akinrele. He referred to the observation of the learned trial Judge at page 107 lines 14 – 16 of the record and contended that His Lordship erred when he placed the onus of proof of the location of the land purchased by Chief Akinrele on the appellants.
He submitted that the onus was on the respondents to prove the assertion that the land in dispute forms part of the land purchased by Chief Akinrele. He relied on the case of: Oyovbiare V. Omamurhomu (2001) FWLR (68) 1239. He submitted further that having found that the radical title to the large expanse of land inclusive of the land in dispute was vested in the 2nd appellant, the learned trial Judge ought not to have placed the burden of proof on the appellants, particularly as the respondents had admitted the said radical title of the 2nd appellant to the land. He referred to: Itauma V. Akpe-Ime (2000) 7 SCNJ 40 at 48 – 49; (2000) 7 SC (Part 11) 24. He also referred to: Olohunde & Anor. V. Adeyoju (2000) FWLR (24) 1355 at 1392; Onobruchere V. Esegine (1986) 1 NWLR (19) 799; Ihenacho v. Chigere (2004) 19 NSCQR 177 at 194.
He submitted further that the learned trial Judge failed to draw any inference from the dimensions of the land in Exhibit K (the sale agreement between the 2nd appellant’s father and Chief Akinrele given to Chief Akingbesote by Chief Akinrele after the re-purchase of the land).
He noted that the land in Exhibit K measures 638 x 1877 yards (1908 feet x 5631 feet) and the land in Exhibit N (executed between the Akingbesote family and the 2nd appellant’s family), measures 250 feet by 6000 feet. He contended that the learned trial Judge also failed to make any presumption upon the failure of the respondents to disclose the dimensions of the land sold by the Akingbesote family to one Chief Odunwo Akingbule, as admitted by PW3 and the land contained in Exhibit M. He submitted that where the onus of proof is wrongly placed on a party it would vitiate the judgment and render it liable to being set aside. He referred to: Ihenacho V. Chigere (supra).
With regard to the second issue, learned counsel submitted that the learned trial Judge erred in his finding that the appellant’s family had nothing left to sell having regard to the fact that the 2nd appellant’s father sold the land in dispute to Chief Akinrele, which land was retrieved via re-purchase by Akingbesote. He maintained that throughout the trial the respondents did not adduce any evidence to show where the land sold to Chief Akinrele is situated vis-a-vis the land in dispute. He submitted that issues having been joined on whether the land in dispute forms part of the land sold to Chief Akinrele, the onus were on the respondents to prove that fact. He relied on the case of: Itauma V. Akpe-Ime (supra) and Sections 135 and 137 (1) and (3) of the Evidence Act. He submitted that failure to discharge the onus was fatal to the respondents’ case. He argued that the appellants, on the other hand, through their witnesses, particularly DW1 (Festus Iranola Akintoye, the son of Chief Opotu Akintoye Akinrele) and DW2 (the 2nd appellant) testified that the land sold to Chief Akinrele was on the left hand side while facing Ife Road from Abusoro. He submitted that this piece of evidence was not only uncontradicted but was in fact admitted by the respondents through PW3 and PW4 under cross-examination. He submitted that their admissions are against the interests of the respondents. He referred to the case of: Kamalu V. Umunna (1999) 5 SCNJ 191 at 201. Relying on Owosho & Ors. V. Dada (1984) 7 SC 149 at 163 – 164, he submitted that having admitted the fact, it requires no further proof. He argued that it was unnecessary for the learned trial Judge to import north and south coordinates into Exhibit N to determine on what side of Abusoro road the land sold to Chief Akinrele is situate.
He submitted that there were material inconsistencies in the evidence of PW3 and PW4 on the location of the land sold to Chief Akinrele, which were not reconciled and therefore fatal to their case. He submitted that the respondents failed to adduce any evidence as to the dimensions of the land the Akingbesote family sold to Chief Odunwo Akingbule after retrieving Exhibit K from Chief Akinrele. He noted that there was also no evidence of the dimension of the land contained in Exhibit M to enable the court determine whether the family kept within the retrieved land. Learned counsel argued that, as the land covered by Exhibit N is larger than that contained in Exhibit K, a prima facie case of trespass had been established.
Learned counsel submitted that the learned trial judge erred in failing to give effect to Exhibit N on the ground that PW3 had explained why the exhibit was signed and having regard to Exhibits L and L1 said to have been written to the 2nd appellant. He stated that the 2nd appellant denied receipt of the letters and there was no evidence before the court to prove otherwise. Relying on the case of: Anyaegbunam V. Osaka (2000) 1 NSCQR 404 at 418, he submitted that parties are bound by the contents of any document duly executed by them. He submitted that it is the duty of the court to give effect to them. He relied on: NISR (Nig.) Ltd. V. Saaj El Assad (1971) All NLR 172; Manya V. Idris (2000) FWLR (23) 1237 at 1250. He submitted that the assertion of PW3 that he signed Exhibit N “to avert trouble from the 2nd defendant and others struggling over the land then” is at variance with the respondents’ pleading and goes to no issue. He contended further that Exhibits L and L1 could not rescind Exhibit N, being a contractual agreement validly executed by the parties thereto. He argued that the contract in Exhibit N, being an executed contract on the part of the 2nd appellant and containing a penalty clause, the 2nd appellant was entitled to treat the contract as repudiated when the Akingbesote family failed to pay the purchase price and was equally entitled to fall back on the penalty clause by writing letters to those in physical possession of the land.
Finally, he submitted that the learned trial Judge having held that the respondents’ evidence of traditional history was useless; that the Akingbesote family failed to prove a blood relationship with Chief Jomu Okedoko Akinnawo; and the difficulty of the court to accept that Akingbesote was granted a piece of land, part of which is now in dispute by Losan the original founder of the land, the learned trial Judge ought to have dismissed the respondents’ claims. He submitted that all other assertions such as the refund of the purchase price of the land to Chief Akinrele by Chief Akingbesote and the return of Exhibit K to him were all premised on the traditional history relied upon by the respondents. He relied on: Suara Yusuf V. Adegoke (2007) 30 NSCQR 269 at 294; (2007) 11 NWLR (1045) 332 at 358 B – D. He submitted that the appellants having established a better title their counter claim ought to have succeeded. He relied on the case of Olohunde V. Adeyoju (supra) and urged the court to resolve the issues in the appellants’ favour.
Otunba Wole Akindiose, learned counsel for the respondents addressed these issues in issues 2 and 4 of the respondents brief. With regard to the issue as to whether the land in dispute forms part of the land adjudicated upon by Chief Lisa Fawehinmi, he submitted that the appellants rely on Exhibits M and N as the basis of their claim to the land in dispute. He observed that the land in Exhibit N shows that it has a boundary on the right hand side with “the purchaser’s landed property bought from Late High Chief Odunwo Akintoye”. He noted that the purchaser referred to in Exhibit N is Akingbesote, the father of PW3. He submitted that PW3 testified that after the purchase, his father, Chief Ifore was in possession of the land in dispute and farmed thereon. He submitted that contrary to the contention of the appellants, PW3 clearly knew the location of the land his father purchased from Chief Akinrele. He maintained that PW3 was in a position to know that the land in dispute forms portion of the land in Exhibit J and J1. On the other hand, he referred to the evidence of DW1 (the son of Chief Akinrele) who under cross-examination stated that he did not know the boundaries of the land purchased from his father. He submitted that he gave contradictory evidence of the location of the land in his examination-in-chief and under cross-examination. He submitted that the purpose of calling DW1 to testify was to show that the land in dispute does not form part of the land in Exhibits J and J1 but he was unable to do so as he testified that he did not know the boundaries of the land in Exhibits J and J1. He argued that the evidence of PW3 is more credible in this regard and urged the court to uphold the findings of fact of the learned trial Judge that the land in dispute forms part of the land in Exhibits J and J1.
Learned counsel submitted that if the court holds that the land in dispute forms part of the land in Exhibits J and J1 it follows that the 2nd appellant had no right to sell to the 1st appellant because his father had already divested himself of his interest in the land when he sold it to Chief Akinrele in 1962. He relied on: Mohammed V. Karlgester Nig. Ltd. (2002) 7 SCNJ 443 at 456.
On the issue as to whether the learned trial Judge ought to have granted the respondents’ claims and dismissed the appellants’ counter claim, learned counsel submitted that the onus of proof is on the plaintiff to establish his claim on a preponderance of evidence. He referred to the five ways of proving ownership of land as stated in Idundun V. Okumagba (1978) 9 – 10 SC 227 at 246 – 250; Alli V. Aleshinloye (2000) 4 SCNJ 264 at 283. Relying on the case of Owhonda V. Ekpechi (2003) 9 SCNJ 1, he submitted that a party may rely on more than one method of proving his title because each method is independent of the other. He submitted that the respondents relied on traditional evidence, documentary evidence and evidence of long possession.
He submitted that the respondents relied on Exhibits M and N to show that pw3’s family conceded the land in Abusoro to the 2nd appellant. He noted that Exhibits L and L1 were however written to him repudiating the terms of Exhibits M and N on grounds of fraud and mistake. He submitted that assuming, without conceding, that PW3 conceded the land in Exhibits M and N to the 2nd appellant, by virtue of Exhibits J and J1 he had nothing to sell to the to appellant, as his father had divested himself of his interest in the land in 1962. He submitted that the principle of nemo dat quod non habet applies. He reiterated the fact that the land in Exhibit N referred to one of the boundaries as being the land Akingbesote (the father of PW3) bought from Chief Akinrele (the father of DW1). He referred to portions of the evidence of PW3 to show that the respondents also relied on long possession.
He submitted that appellants’ counter claim must succeed on the strength of their case and not on the weakness of the defence thereto.
He relied on the case of: Kuarobo & Anor. V. Aigbe (2002) 3 SCNJ 109 at 122. He submitted further that the burden is on the appellants, as counter claimants seeking declaratory reliefs, to identify the land they are claiming. He referred to: Orunengimo V. Egede (2007) 15 NWLR (1058) 630 at 641.
He submitted that the appellants failed to prove that the land in dispute is different from the land re-purchased by Chief Akingbesote from Chief Akinrele. He submitted that apart from the fact that Exhibit N showed that the land therein forms part of the re-purchased land, the respondents also tendered Exhibit C showing the identity of the land in dispute. He submitted that in the face of Exhibit C, the appellants could not contend that the respondents failed to prove the identity of the land in dispute. He argued further that since the appellants contend that the re-purchased land is different from the land in dispute they had a duty to file their survey plan showing the features of the land they are claiming to enable the court compare it with the land claimed by the respondents. He relied on: Adeleke v. Aserita (1990) 3 NWLR (136) 113. Learned counsel referred to the evidence of DW1 wherein he stated that he did not know the boundaries of the land his father purchased from the 2nd appellant’s father. He submitted that the 1st appellant’s claim for an order of injunction could only be granted where he has shown the identity of the land he is claiming with utmost clarity. He submitted further that the learned trial Judge could not have granted the 1st appellant’s reliefs because the evidence of the respondents was that Chief Akingbesote was not a tenant on the land. He submitted that if, as pleaded and testified to by DW2, Akingbesote was a customary tenant on the land, the law is that a customary tenant remains in possession until his tenancy is forfeited by an order of court. He cited the case of: Archibong & Ors. V. Chief Ita & Ors. (2004) 1 SCNJ 141. He urged the court to resolve the issues in favour of the respondents.
The law is firmly settled that in a civil suit, the burden of proof lies on the person against whom the judgment of the court would be given if no evidence were led on either side. However the burden of proof of particular facts in a civil suit is not static. The initial burden is on the person who asserts a particular fact. Once that fact is established to the satisfaction of the court, the burden shifts to the other party and so on until all the issues in controversy between the parties have been disposed of. See Sections 135, 136, 137 and 139 of the Evidence Act.
In line with the general burden of proof as stated above, it is equally trite that in a claim for declaration of title to land a claimant must succeed on the strength of his own case and not on the weakness of the defence unless there is an aspect of the defendant’s case that supports the claimant’s case. See: Mogaji V. Cadbury Nig. Ltd. (1985) 2 NWLR (7) 393 at 429 D – E; Kodilinye V. Odu (1936) 2 WACA 336 at 337; Onwugbufor V. Okoye (1996) 1 NWLR (424) 252; Shittu V. Fashawe (2005) 14 NWLR (945) 671. A counter claimant has the same burden, his claim being separate and distinct from the main claim. See: Kyari V. Alkali (2001) 5 SC (Part II) 192 at 202; Onwuka V. Ediala (1989) 1 NWLR (96) 182; (1989) 1 SC (Part II) 1.
The well-established methods of proving title to land were stated in Idundun V. Okumagba (1976) 9 – 10 SC 227. They are:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them. It is the contention of the appellants that the respondents having failed to prove their root of title through traditional history, the learned trial Judge ought not to have considered any other evidence led by them in proof of their claims. In Owhonda V. Ekpechi (2003) 9 – 10 SC 1 at 24 lines 17 – 26 the Supreme Court held thus:
“The law is that a party to a land dispute may plead and prove his title in any of the five recognised ways. All the modes of proof of title are independent and none is superior to the other. So where traditional evidence fails, a party may still rely on any of the other four modes to prove title to the land in dispute.”
In the case of Nkado & Ors. V. Obiano & Anor. (1997) 5 NWLR (503) 31 at 54 – 55 H – D, His Lordship, Onu, JSC, in the lead judgment considered what in his view was the narrow interpretation of the decision in Mogaji V. Cadbury (Nig.) Ltd. (1985) 2 NWLR (7) 393 to the effect that where a possession rests on traditional history that has failed, the acts of possession become irrelevant and should not be considered in granting a declaration of title. His Lordship was of the view that the correct position was as stated by Adio, JSC in Akunyili V. Ejidike (1996) 5 NWLR (449) 381 where His Lordship held:
“The court below (the Justice who wrote the dissenting judgment) thought that proof of a claim for declaration of title by means of traditional evidence was mutually exclusive with other means of proving the claim. A plaintiff may adopt one or more of the ways of proving ownership, for example, traditional evidence or by means of evidence of acts of ownership or possession. The two or one or the other of them may be sufficient to sustain the claim. It is only where a plaintiff fails to prove his case by means of traditional evidence and also fails to establish it by means of evidence of acts of ownership and possession when these were the means pleaded and relied upon by him that his claim will be dismissed.” (Underlining mine)
His Lordship, Onu, JSC referred to his views expressed at page 406 of the report where he stated:
“Plaintiff could still succeed in an action for declaration of title on acts of exclusive possession and of ownership even where traditional history is entirely lacking.”
In the instant case the respondents relied on traditional evidence and ownership by the production of documents of title. The learned trial Judge rejected the respondents’ evidence of traditional history on the ground that their evidence regarding the original founder of the land was at variance with their pleading and further that it was not proved that Omotarami, through whom the Akingbesote family claimed entitlement to the land in dispute, was related to Jomu Okedoko Akinnawo’s family i.e. the 2nd appellant’s family. There is no appeal against this finding. However, in light of the authorities referred to above, the court was entitled to consider facts pleaded and testified to tending to establish their ownership of the land in dispute by other means, namely by the production of documents of title resulting from the repurchase of the land by Akingbesote from Chief Akinrele.In paragraphs 14 – 28 of their amended statement of claim, the respondents pleaded how the 2nd appellant’s father, Chief Jomu James Akinnawo, trespassed on the land being farmed upon by their ancestor, Chief Lisa Ifore Akingbesote and sold same to Chief Opotu Akinrele. They pleaded the customary arbitration that took place to resolve the issue and the fact that Chief Akinnawo was ordered to refund the purchase price to Chief Akinrele; they also pleaded that when he was unable to refund the money, it was decided that Chief Akingbesote should do so. He duly complied and the purchase agreement between Chief Akinnawo and Chief Akinrele was handed over to him. It is further pleaded that having thus re-purchased the land from Chief Akinrele, Chief Akingbesote continued his acts of possession on the land by farming on it. The land devolved on his children who eventually sold it to the 2nd respondent. The 2nd respondent commissioned a survey of the land in 1986. The survey plan was duly pleaded. He subsequently sold the land to the 1st respondent.
In their joint statement of defence and 1st defendant’s amended counter claim, the appellants pleaded how the land devolved on the 2nd appellant from the original settler Pa Losan through Jomu Akinitirin, his only child, through Akinitirin’s three children Kekerenuwon, Omoniyi Orodiritan and James Akinnawo, and through James Akinnawo the father of the 2nd appellant to the 2nd appellant himself and other members of his family. They pleaded in paragraphs 9, 10, 11, 13 and 14 thus:
“9. That in exercise of their exclusive right of ownership, the 2nd defendant’s ancestors deforested the land, farmed thereon and placed many Ishakole (tribute paying) customary tenants on the land including late Pa Akingbesote who farmed at Abusoro Camp during his lifetime before the Camp went into ruins.
10. The father of the 2nd defendant in furtherance of his family’s right of ownership over the land sold land to many people including Chief Opotu Akinrele to whom he sold the land on the right hand side of Abusoro Road on the opposite side of the land in dispute. Which land is distinct from the land in dispute.
11. After the death of the 2nd defendant’s father, Chief Jomu Doko James Akinnawo, the children of Pa Akingbesote took advantage of the absence of the 2nd defendant from Ondo and broke into his family land at Abusoro, Ogbe Area and started alienating the land indiscriminately.
13. The Akingbesote Family also trespassed on the land sold by the 2nd defendant’s father to Chief Opotu Akinrele and sold same to the then Mr. Funmilola Akingbule now High Chief Odunwo Akingbule.
14. Further to paragraph 9 above the defendants aver that the resultant customary arbitration before Late High Chief Jomu Ogunye, the claim of the Akingbesote family that their father purchased the land sold to Odunwo Akingbule from Chief Akintoye Akinrele was declared “THIS IS JUST A MYSTERY”.
It was further pleaded that the said Chief Akingbule later re-negotiated with Chief Akinrele’s family and re-purchased the land sold to him by the Akingbesote Family. It was further pleaded that after the 2nd appellants family challenged the Akingbesote family for acts of trespass on their family land the principal members of the Akingbesote family promised to rectify the situation by paying some money to the 2nd appellant’s family for illegally selling the land and entered into some agreements in respect thereof (Exhibits M and N). They however never paid the money. It was also pleaded that the 2nd appellant sold the land in dispute to the 1st appellant in full exercise of his exclusive right of ownership over the land.
The learned trial Judge accepted and preferred the traditional evidence of the appellants that the 2nd appellant’s ancestor Losan was the original owner of a large expanse of land including the land in dispute and that it devolved on his successors down to the 2nd appellant. From the pleadings above and the evidence led in respect thereof, it is not in dispute that Pa Akingbesote farmed on a portion of land that originally belonged to the Akinnawo family (either as grantee or tenant) before it was sold to Chief Akinrele. There is no survey plan showing the exact size and boundaries of the land Pa Akingbesote farmed upon or the portion sold to Chief Akinrele. The respondents’ case at the court below was that the land in dispute as shown in Exhibit C formed part of the land sold by the 2nd appellant’s father to Chief Akinrele and which was re-purchased by Pa Akingbesote. The contention of the appellants on the other hand is that the land sold to Chief Akinrele is separate and distinct from the land in dispute. Thus issues have been joined on the pleadings as to whether the land in dispute is the actual land repurchased by Pa Akingbesote. The parties agree that Exhibit C, the survey plan tendered by the respondents, represents the land in contention between the parties. DW3 (the 1st appellant) admitted as much in his evidence in chief at page 78 lines 12 – 13 of the record. I am of the view that, having regard to the facts of this case, the initial burden was on the respondents to prove by credible evidence, the entire land farmed upon by Akingbesote, which was sold to Chief Akinrele and later re-purchased by Akingbesote, of which the land in dispute forms a part. The burden would then shift to the appellants to prove that the land Pa Akingbesote re-purchased is different from the land being claimed by the respondents. See: Itauma vs. Akpe-Ime (2000) 7 SC (Part II) 24 at 30 – 31. The appellants contend that the Akinnawo family owns a vast expanse of land that includes the land in dispute. Under cross-examination, DW 2 (the 2nd appellant) testified that his family sold land to Chief Akinrele on two occasions, in 1959 and 1962 and that it was the sale that took place in 1962 that was the subject of the customary arbitration before Chief Lisa Fawehinmi and that the land is different from the land in Exhibit C.
I have stated earlier that the respondents had the burden of proving the extent of the land repurchased by Akingbesote from Chief Akinrele. Issues having been joined on the pleadings, it was the respondents who would fail if no further evidence was led on either side.
This is particularly so as Exhibit M and N show that other parcels of land were sold by the Akingbesote family to other purchasers purportedly from the same re-purchased land. It is also noteworthy that no surveyor was invited to testify on this crucial point.
It was held in the case of Oyovbiare V. Omamurhomu (2001) FWLR (68) 1229 relied upon by learned counsel for the appellants that once it is proved that original ownership of property is in a party, the burden of proving that that party has been divested of the ownership rests on the other party. In the instant case the learned trial Judge preferred and believed the evidence of traditional history led by the appellants. He found that Losan, the ancestor of the 2nd appellant founded a large expanse of land of which the land in dispute forms a part. Applying the principle in Oyovbiare V. Omamurhomu (supra), the onus was on the respondents to prove that the 2nd appellant’s family had been divested of their ownership of the land or part thereof. To discharge this burden, the respondents tendered Exhibit C, a survey plan showing the land, which they contend is part of the land re-purchased by Pa Akingbesote. They also tendered Exhibit J and J1, the outcome of the customary arbitration before Chief Lisa Fawehinmi and Exhibit K the purchase agreement between the 2nd Appellant’s father and Chief Opotu Akinrele, which was handed over to Chief Akingbesote when he refunded the purchase price. The authenticity of these documents was not seriously challenged. However the issue in contention is whether the land referred to in those documents is the same as the land shown in Exhibit C. The respondents therefore had a duty to lead credible evidence regarding the land described in Exhibit C. The survey plan is pleaded in paragraph 6 of the amended statement of claim while the boundaries of the land in dispute are pleaded in paragraph 26 as follows:
26. “That immediately after the purchase of the land in dispute by the 2nd plaintiff he entered unto the land and took possession. The said land is bounded as follows:
a. On the right by – Ondo/Abusoro Road.
b. On the left by – Vendors remaining farmland.
c. At the back by Vendors remaining farmland.
d. At the front by – Ondo/Ife Road. (Underlining mine)
In paragraph 1 of the defence to 1st defendants counter claim the respondents restated the boundaries of the land in dispute thus:
a. On the right side by Abusoro Road.
b. On the left side by landed property of Chief Bademosi.
c. At the front side by Ondo/Ife Express Road.
d. At the back side by John Adenika’s land.
In support of the above pleading, PW1 (the 2nd respondent) testified at pages 60 lines 34 – 37 to 61 lines 1-3 of the record as follows:
“I know the land in dispute. The land is situated along Ife Road, Ondo and it is called Oko Abusoro. I purchased the land in dispute in 1977 from Akingbesote family. I got a document evidencing the sale to me. This is the document given to me as evidence of the sale of the land to me.”
The “sale of land agreement and purchase receipt” dated 20/4/1977 was tendered as Exhibit A. The area of the land is stated to be 1 1/4 hectares. The boundaries are as pleaded in paragraph 26 above.
PW2, Chief Alfred Adedunsewo (father and attorney of the 1st respondent) in his evidence in chief merely described the land as being at Oko Abusoro/Ogbe off Ondo/Ife Road.
PW3, Patrick Akingbesote testified at page 65 lines 1 – 11 of the record thus:
“I know the land in dispute. This (sic) is situated along Ondo/Ife Road. The land is known as Abusoro. It is also called Ogbe. I know the boundaries of the land in dispute. On the right side it is bounded by Ondo/Ife Road, on the left side it has boundary with our family land. At the front the land has boundary with Awosika family land.”
Under cross-examination he stated:
“My father has a hut on the land in dispute. There are two coconut trees planted by my father still standing on the land very close to the hut. The land the father of the 2nd defendant sold to Chief Opotu is on the left hand of Abusoro road while facing Ondo Road.” (See page 68 lines 21-26). (Underlining mine)
Under, re-examination, he stated:
”The land in dispute is part of the land sold to Chief Opotu by Chief Akinnawo.”
PW4, Ezekiel Egbozionu, in his evidence in chief stated:
”I know the land in dispute. I farm on the land in dispute. PW2 gave me permission to farm on the land. Nobody has disturbed me on the land.”
Under cross-examination he stated:
“There is a road beside the land. If you face the Ondo/Ife Road, the land is by the right.”
The appellants have argued that there are material inconsistencies in the evidence of the respondents’ witnesses regarding the exact location and boundaries of the land in dispute. I have carefully examined Exhibit C, the survey plan tendered by the respondents. According to PW2, Exhibit C is based on the land described in Exhibit A. In Exhibit A the land is said to be bounded on the right by the Ondo/Abusoro Camp Road. In other words Abusoro road is on the right while the land purchased is to the left of it. As observed earlier, the surveyor who prepared Exhibit C was not called to testify. Exhibit C shows the Ondo/Ife Express Road at the top and the land in dispute to the right of Abusoro Road. PW3 described the land as being on the left of Abusoro Road while facing Ondo/Ife Road. This evidence contradicts Exhibit C. The physical features described by PW 3 are not depicted on the plan. The boundary men are also not stated. Exhibit C does not support the pleading in paragraph 26 of the amended statement of claim and the oral evidence of PW3 that the land in dispute is on the left hand side of Abusoro Road. Again, under cross-examination he stated that the land the father of the 2nd defendant sold to Chief Opotu is on the left hand of Abusoro road while facing Ondo/Ife Road and under re-examination he stated that the land in dispute is part of the land sold to Chief Opotu Akinrele. If the land sold to Chief Opotu Akinrele, which was re-purchased by PW3’s father is on the left hand side of Abusoro Road facing Ondo/Ife Road, it cannot be the same land shown in Exhibit C, which is on the right hand side of the road. PW4 on the other hand testified that the land is on the right hand side of Abusoro Road while facing Ondo/Ife Road. It is noteworthy that all the witnesses took their bearings facing Ondo/Ife Road. Whose evidence is to be believed? From his evidence, PW4 is farming on the land in dispute with the permission of PW2. The question is whether the land he is farming on is the same land repurchased by Akingbesote.
I am inclined to agree with learned counsel for the appellants that the inconsistencies in the evidence of the respondents’ witnesses regarding the location of the land repurchased from Chief Akinrele is material and a substantial flaw in their case.
DW1, the son of Chief Opotu Akinrele in his evidence in chief at page 71 of the record stated:
“The land my father bought from the father of the 2nd defendant is by the left hand if you face Ife Road from Abusoro. I do not know anything pertaining to the right while facing Ife Road from Abusoro.”
This evidence is consistent with Exhibit A tendered by PW 1 that Abusoro road is on the right hand side of the land. Under cross-examination DW 1 stated:
“The land my father bought is on the right side of the road white going to Oke-Igbo. I do not know the boundaries of the land my father bought from the father of the 2nd defendant.”
The direction of Oke-Igbo was not stated.
DW2, Chief Joseph Akinbinu Akinnawo (the 2nd appellant), testified at page 74 of the record thus:
‘I know Chief Opotu Akintoye Akinrele. He came to buy land from my father. The land he bought was on the left hand side of Abusoro Road. The land he bought is not the same as the land in dispute.”
He stated under cross-examination:
”The land which I made agreement with the Akingbesote family and evidenced by Exhibits M and N is different from the land we sold to Opotu Akinrele, Abusoro road is the boundary of the land sold to Chief Opotu Akinrele. The boundaries of the land sold by my father to Chief Opotu in 1962 have (sic) the following boundaries at the south, Omi Iye Ondo/Ife Road and the land sold to Mr. Akinbobola. The land in dispute does not form part of the land brought before Chief Lisa Fawehinmi. The Akingbesote was a tenant on the land we sold to Chief Opotu Akinrele. The Akingbesote family paid nine pieces of yam as tribute. It is not true that the land in dispute was the one purchased by Akingbesote from Opotu Akinrele.”
The 2nd appellant conceded that his father sold land to Chief Opotu Akinrele, but was emphatic that it was a different parcel of land from the one in dispute. The respondents maintain that the land shown in Exhibit C is the land Chief Akingbesote re-purchased and covered by Exhibit K.
In resolving this issue, the learned trial Judge held that the entire land covered by Exhibit K (the original sale agreement) is covered by Exhibits J and J1 (the return of land certificate). He noted that DW2, the 2nd appellant herein signed Exhibit K but rejected his evidence as to the actual location of the land that was sold on the ground that “he is a party in this case and it is natural for him to lean towards giving evidence favourable to his cause.” (See page 108 lines 12 – 15 of the record). With regard to the evidence of PW3 he held thus:
“There is evidence that the land involved in the sale to Chief Opotu A. Akinrele was actually been (sic) cultivated by Chief Akingbesote before the sale and after it was recovered. PW3 is a son of Chief Akingbesote and would it be out of place to say that he would know the site of his father’s farm? The value of this reasoning is reduced by the fact that PW3 signed both Exhibits M and N, which conceded that the 2nd defendant owned the land the Exhibits covered, I am however not oblivious of the reasons given by PW3 for signing the said Exhibits M and N and the fact that they caused Fagbemi & Co. to write Exhibits L and L1 to the 2nd defendant. This shows that PW3 may be mistaken too.” (Underlining mine)
It seems to me that the evidence of DW2, who witnessed the sale of the land in Exhibit K as to the location of the land sold to Chief Opotu Akinrele was more credible than the evidence of PW3 who not only testified that he did not know the boundaries of the land his father bought, but also signed Exhibits M and N conceding title to the land covered by those exhibits, which includes the land in dispute, to the 2nd appellant’s family. It is true that the respondents pleaded in paragraph 5 of their reply to the 1st defendant’s counter claim that when they discovered that the land comprised in Exhibits M and N was the same land illegally sold to Chief Akinrele in 1969, they instructed their solicitors, Fagbemi & Co. to write to the 2nd appellant. Two letters were admitted in evidence as Exhibits L and L1. There was no evidence that the letters were received. The finding of the learned trial Judge that DW2 must have received them is speculative and is not supported by the evidence on record. Under cross-examination, PW3 stated “Exhibit N was signed to avert trouble from 2nd defendant (DW2) and others who were struggling over the land then.” This evidence is at variance with the pleading in paragraphs 5 and 6 of the defence to the counter claim wherein the respondents merely pleaded that they “discovered that it was the same land that the father of the said defendant sold illegally in 1969 to late Chief Opotu Akinrele.” It is rather curious that the principal members of the Akingbesote family would execute Exhibits M and N conceding their family land to the 2nd appellant merely to avert trouble. In any event, the evidence relating to a fact not pleaded goes to no issue.
I am also in agreement with learned counsel for the appellants that Exhibit L and L1 could not rescind Exhibits M and N being documents freely executed by the parties. See: MISR (Nig.) Ltd. V. Salah el Assad (1971) ALL NLR 172; (1971) LPER-SC 2/1970.
Furthermore, as observed earlier in this judgment, the respondents failed to prove the extent and location of the land re-purchased by Pa Akingbesote of which the land in dispute is said to form a part. The fact that pa Akingbesote re-purchased land on which he farmed, which was sold to Chief Akinrele by the 2nd appellant’s father is not in dispute. The issue in contention is whether Exhibit C represents part of that land. The reference to the purchasers landed property bought from High Chief Odunwo Akintoye in Exhibit N does not resolve this issue while Exhibit M merely refers to “the Akinnawo’s father’s landed property at Ogbe “wrongly mis-sold to one Madam Kunbi Olamogunke and Chief Balogun Adegoroye.”
I am of the view that it was not the duty of the learned trial Judge, as submitted by learned counsel for the appellants to analyse Exhibit N and ascribe north and south coordinates thereto in order to determine the location of the land in dispute vis-a-vis the land covered by Exhibit N. Evidence in this regard ought to have been led by the respondents. The respondents were to rely on the strength of their own case and not the weakness of the defence.
Taking all the facts in this case into consideration, I am of the view that the respondents failed to prove, on a preponderance of evidence that the land in dispute forms part of the land repurchased from Chief Opotu Akinrele by Pa Akingbesote. The evidence of their witnesses was inconsistent while Exhibit C was in conflict with the case they put forward. They were therefore not entitled to the reliefs sought. See: Sanni v. Ogunbode (2001) 8 NWLR (714) 74 at 84 C – D.
On the other hand, the learned trial Judge, rightly in my view accepted and believed the traditional evidence of the 2nd appellant as to how the land in dispute devolved on him. The law is that a person seeking a declaration of title to land may succeed on any of the five methods set out in Idundun v. Okumagba (supra). The appellants’ evidence of traditional history, which was accepted by the court, fully discharged the burden on them. The respondents failed to prove by credible evidence that the land in dispute formed part of the land re-purchased by Akingbesote from Chief Akinrele. I therefore hold that the 2nd appellant proved a better title to the land in dispute.
Issues 1 and 2 are accordingly resolved in favour of the appellants.
Issue 3
It is the contention of learned counsel for the appellants that from the evidence before the court the Akingbesote family was not any time in possession of the land in dispute as a customary tenant to warrant the appellants seeking forfeiture of their customary tenancy as held by the learned trial Judge. It was further argued that assuming Akingbesote was a customary tenant on the land in dispute, the 2nd appellant still had a reversionary interest or right capable of protection in the land.
Learned counsel submitted that once it is proved that the Akingbesote family had alienated the land on which they were customary tenants, the right of the 2nd appellant to protect his reversionary interest enures against both the Akingbesote family and/or their purchasers. He submitted further that the counter claim of the 1st appellant who is a purchaser of the 2nd appellant is good and maintainable in law because the reversionary interest of the 2nd appellant is capable of being transferred or alienated. He relied on Sagay v. New Independence Rubber Ltd. (1977) SC 143 at 158; Soleh Boney Overseas (Nig.) Ltd. V. Agboola Ayodele & Anor (1989) 1 NWLR (99) 549 at 558 – 559; and Sec. 76 of the Property and Conveyancing Law Cap 98 Vol. V. Laws of Ondo State 1978.
He submitted that the view of the learned trial Judge that the case of the 1st appellant would still have failed for failure to seek forfeiture of the alleged customary tenancy of Chief Akingbesote on the land is erroneous.
He submitted that even if His Lordship were right in his view, it was an issue raised suo motu without affording the parties an opportunity to address the court on it thereby breaching their right to fair hearing.
In reply, learned counsel for the respondents submitted that the issue of the customary tenancy of the respondents’ vendor was pleaded by both parties and evidence led to that effect. He submitted that the appellants pleaded the customary tenancy in their amended statement of defence and counter claim; which the respondents denied, thus joining issues with them in respect thereof.
He submitted that the appellants gave contradictory evidence as to the location of the land the father of DW1 purchased from the 2nd appellant’s father and on which he was allegedly a customary tenant. He referred to Exhibit N, which was later repudiated by Exhibit L and L1 and submitted that it is clear that the land in dispute forms part of Exhibit N which is the same land in respect of which the appellants claim that the father of the 1st respondent’s vendor was a customary tenant.
He submitted that it was clear that the Akingbesote was in possession of the land at ABUSORO as stated by PW 3 in his evidence. He submitted that since the appellants’ witnesses gave contradictory evidence in respect of the land being claimed by them, the court had no alternative than to hold that the land in dispute was in possession of the family of PW3.
Relying on the case of Akinlagua v. Oshobaia (2006) 42 WRN 1 at 13. He submitted that when a party is claiming that the other party is a tenant on the land, he must seek for an order of forfeiture before he can claim his reversionary interest or right on the said land.
He submitted that the court had the right to consider the issue since issues had been joined on it on the pleadings.
He further submitted that the issue of forfeiture was raised obiter by the learned trial Judge and does not form part of the findings or conclusion in the judgment and had no effect on the court’s decision.
He submitted that the main ground on which judgment was entered in favour of the respondents was that the father of the 2nd appellant had sold his interest on the land to Chief Opotu Akinrele and; which was re-purchased by the father of DW3 and inherited by his children. That his children sold to PW1 who sold to the 1st respondent.
Therefore the 2nd appellant had nothing to sell to the 1st appellant.
I have given careful consideration to the submission of learned counsel in respect of this issue. I have also examined the portion of the judgment at page 112 lines 11 – 20 and 20 – 25 reproduced below:
“Even if it was not proved that the father of the 2nd defendant had divested himself of any interest he might had (sic) on the land, the claims for declaration of title to land by the 1st defendant would still have failed. This is because the stand of the 2nd defendant throughout the trial was that Akingbesote was a tenant on the land in dispute. The law is that a customary tenant remains in possession until his tenancy is forfeited. See: Archibong & Ors, V. Chief Ita & Ors. (2004) 1 SCNJ 141. It is also the law that forfeiture cannot be granted unless it is specifically asked for in the pleadings. See: Ogun V. Akinyelu & Ors. (2004) 12 SCNJ 196. This is not the case here as the defendants did not ask for the forfeiture of the alleged customary tenancy of Chief Akingbesote over the land.
In conclusion, since I have held that Chief Akingbesote got back the land in dispute by returning the purchase money paid by Chief Opotu A. Akinrele, it follows that the title to the land belongs to Akingbesote family and only the family can validly sell the land. Since the Akingbesote family sold the land to Chief Ebun Faturoti, the 2nd plaintiff, who in turn assigned the Certificate of Occupancy over the land to Chief (Mrs.) Christianah Fagbemi, it follows that it is the 1st plaintiff that is entitled to the use of the land.”
(Underlining mine)
The law is that grounds of appeal against a decision and the issues formulated therefrom must be a challenge to the validity of the ratio of that decision. See: Egbe v. Alhaji & Ors. (1990) 1 NSCC (Vol. 21) (Part I) 306 at 332 lines 39 – 44; Honika Sawmill (Nig.) Ltd. V. Hoff (1994) 2 NWLR (326) 252; Palek v. Ompadec (2007) ALL FWLR (364) 204 at 226 F – H.
In the instant case the comment of the learned trial Judge to the effect that the defendants/counter claimants ought to have asked for the forfeiture of the alleged customary tenancy over the land in dispute was an obiter dictum, a comment made in passing. The ratio decidendi is contained in the underlined portion of the judgment reproduced above.
This issue is accordingly resolved against the appellants.
ISSUE 4
The final issue for determination is whether the trial court property evaluated the evidence placed before it.
In view of my findings with regard to Issues 1 and 2, I answer this issue in the negative and resolve it in favour of the appellants. In conclusion, the appeal succeeds. The judgment of the High Court of Ondo State, Ondo Judicial Division delivered on 18/4/2007 in suit no. HOD/70/2004 is hereby set aside. The plaintiffs’ claims are hereby dismissed. Reliefs 1, 2, 3 and 5 of the counter claim are granted as prayed. The 1st appellant did not prove his claim for special damages. The appellants are accordingly granted a nominal sum of N10, 000 as damages against the defendants, jointly and severally for trespass committed on the land in dispute.
Costs of N50, 000.00 are awarded in favour of the appellants against the respondents.
CHINWE EUGENIA IYIZOBA J.C.A.: I read before now the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree entirely with the judgment. It is trite that the evidential burden of proof rests initially on the party who would lose if no evidence was adduced on either side. The respondents therefore had the initial burden of proving the extent of the land repurchased by Akingbesote from Chief Akinrele. They were unable to discharge the burden. The learned Trial Judge therefore erred in entering judgment for the respondents. I agree that the judgment ought to be set aside. I also set it aside. I abide by the consequential orders in the leading judgment including the order as to costs.
MOORE A.A. ADUMEIN, J.C.A.: I had the rare privilege of reading before now the judgment just delivered by my learned brother, KEKERE-EKUN, JCA. The issues in this appeal were meticulously marshalled out and resolved by His Lordship.
I agree that this appeal has merit and it ought to be allowed. I too allow the appeal.
I abide by all the orders in the leading judgment, including the order as to costs.
Appearances
THOMPSON AKINYEMIFor Appellant
AND
Learned Counsel for the Respondents absent although duly served with Hearing Notice.For Respondent
