MR. EMMANUEL ABIODUN FAKOMITI v. CHIEF AKINDELE ILORI & ANOR
(2018)LCN/12293(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 18th day of December, 2018
CA/EK/9/2017
RATIO
EVIDENCE: WEIGHT OF PROOF IN CIVIL LITIGATION
“It is elementary as it is 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 it 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, HAUMA V. AKPA-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.
EVIDENCE: WAYS TO PROOF 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.” PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
EVIDENCE: WHETHER ORAL EVIDENCE CAN CONTRADICT DOCUMENTARY EVIDENCE
“It is trite that oral evidence cannot contradict documentary evidence which is the best form of evidence as it is firmly settled that documentary evidence is the best evidence. See the cases of A-G BENDEL STATE V. UBA LTD. (1986) 4 NWLR PT. 337 547. The document is the best proof of its contents, no oral evidence will be allowed to discredit the said content except in cases where fraud is pleaded. See the case of STABILINI & CO. LTD. V. NWABUEZE OBASI (1997) 9 NWLR PT. 520 293.” PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
LAND LAW: WHERE THE IDENTITY OF LAND IS IN DISPUTE
“The identity of the land must be clearly established with certainty before a declaration of title can be granted otherwise, the claim would fail. See the cases of BANIWA V. OGUNSOLA (1938) 4 WACA 159, TEMILE V. AWANI (2001) FWLR PT. 62 1937, DIKE V. OKOLO (1999) 10 NWLR PT. 623 P. 359, OGUN V. AKINYELU (2004) 18 NWLR PT. 905 P. 362, BABATOLA V. ALAWOROKO 2001 VOL. 5 MJSC 17 and OTANMA V. YOUDUBAGHA (2006) 2 NWLR PT. 964 337. Where there is no difficulty in identifying the land in dispute as herein in my humble view, from the facts as contained in the Record before this Court, a declaration of title may be made and particularly as a survey plan was tendered…” PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
MR. EMMANUEL ABIODUN FAKOMITI – Appellant(s)
AND
1. CHIEF AKINDELE ILORI (OLORO)
(for himself and on behalf of Oloro family, Igede-Ekiti)
2. EMERGING MARKETS TELECOMMUNICATION SERVICES LTD – Respondent(s)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment):
This appeal is a result of the Judgment of the Ekiti State High Court, delivered on March 21st 2016, in which the claim of the 1st Respondent (the Claimant at the Court below), was granted against the Appellant (the 2nd Defendant at the Court below) and the 2nd Respondent (the 1st Defendant at the Court below) to the effect that he was declared the owner of the portion of land in dispute at Igbo-Orioke along Ilawe Road, Igede-Ekiti.
As in the sister appeal, CA/EK/47/2016, the brief facts that culminated into this appeal are as contained in the Record and as follows:
That, the 1st Respondent on his behalf and that of the Oloro family of Igede-Ekiti sought the orders of the Court below against the Appellant and the 2nd Respondent in respect of a parcel of land in dispute, situate at Igbo-Orioke along Ilawe Road, Igede-Ekiti. He sued amongst other things, for declaration of title and trespass. His case was that the portion on which the 2nd Respondent erected its mast is his land being part of the whole parcel of land at Igbo-Orioke. That, it was the great grandfather of the Onigede of Igede, that granted the land at Igbo-Orioke which belonged to the Igedes to his own great grandfather, for the Oloro family, which family is one of the subordinate Chiefs/Heads under the Onigede of Igede-Ekiti. That, the Onigede of Igede on behalf of Igede Ekiti along with two other Rulers of the Ado Kingdom, the Ewi of Ado-Ekiti and the Akitipa of Ado-Ekiti and the Heads of the Ilawe Community, in 1971, concluded the boundaries of lands between the Ilawe and Ado Communities and settled same with an Agreement on January 2nd 1971, Exhibit B, which forms part of the Record before this Court.
The following reliefs were sought from the Court in respect of which the judgment that is being appealed against was given in favour of the 1st Respondent:
1. Declaration that the claimant is the owner of a piece or parcel of land situate, lying and being at Igbo Orioke along Ilawe Road, Igede-Ekiti and bounded as follows:
a. On the 1st side by Ilawe Road beyond which is claimants remaining land.
b. On the 2nd side by the claimants remaining land.
c. On the 3rd side by the claimants remaining land.
d. On the 4th side by the claimants remaining land
2. The sum of N50, 000, 000. 00 (Fifty Million Naira Only) being general damages for the trespass which the defendants committed on the said piece or parcel of land sometime in February 2011 and which trespass still continues.
3. perpetual injunction restraining the defendants, their servants, agents and privies from committing further acts of trespass on the said piece or parcel of land.
Apart from his defence, the Appellant counter-claimed as follows:
i. A declaration that the 2nd Defendant is the lawful owner of all that parcel of land situate, being and lying at Igbo Orioke, along Ilawe Road, Igede Ekiti and therefore the Claimant, his agents and/or privies shall be trespassers thereon.
ii. A perpetual injunction restraining the Claimant, by himself, his agents, servants, privies or any other person claiming through or under trust for him from trespassing or otherwise entering upon the land which shall be inconsistent with the interest of the 2nd Defendant on the said land.
iii. An order of this Honourable Court compelling the Claimant to pay the cost of this suit.
The Appellant was dissatisfied with the decision of the Court which dismissed his Counter-claim and found in favour of the 1st Respondent. Consequently, on June 14th 2018, he filed his Notice of Appeal of four (4) grounds of even date. The relief being sought is as follows:
An order setting aside the decision of the High Court of Ekiti State delivered on the 21st day of March, 2016 by Hon. Justice C. I. Akintayo and allowing the appeal.
In compliance with the Rules of this Court, the parties filed and exchanged their briefs of argument. The Appellants amended brief dated October 22nd 2018, filed October 25th, 2018 and deemed as properly filed and served on October 29th 2018, was adopted at the hearing of the appeal by Mr. Philip O. Ojo Esq., and the 1st Respondents amended brief dated November 1st, 2018, filed November 5th 2018, was adopted by Mr. Ebenezer G. Alabadan Esq. No brief was filed in respect of this appeal by the 2nd Respondent. The Appellant, on November 16th, 2018 filed a Reply brief dated November 15th, 2018.
Issues submitted by the parties for determination are as follows:
APPELLANTS THREE (3) ISSUES
i. Whether Exhibit B on record with the survey plan attached to it sufficiently laid out titleship of the land on the claimant as required by law; If the answer is No, whether the claimant has sufficiently by oral as well as documentary evidence establish his title over the land in issue (Ground 1).
ii. Upon the evidence provided by the 1st respondent; was the trial Court right in granting the perpetual injunction and damages for the claimant and discountenance (sic) the evidence of the appellants witnesses on the altar of the absence of appellant’s personal evidence at the trial and thereby suppressing the uncontroverted overwhelming evidence of the witnesses of the appellant and witnesses of the 2nd respondent at trial (Grounds 2 and 3).
iii. Whether Exhibit B on record to all intent and purposes confers titleship of the said land on the claimant as against the defendant or any other person. AND/OR
Whether the trial Courts decision in finding titleship based for the claimant on Exhibit B is not perverse therefore perpetrating injustice on the appellant?
1ST RESPONDENTS TWO (2) ISSUES
i. Whether the lower Court was right when it declared the first respondent the owner of the land in dispute, situate, lying and being at Igbo-Orioke, along Ilawe road, Igede-Ekiti, the first respondent having pleaded and established the precise area of the land to which his claim related.
ii. Whether the lower Court was right when it granted an order of perpetual injunction as well as awarded general damages against the appellant and second respondent for their acts of trespass on the land in dispute.
I have very carefully considered the issues submitted and hereby adopt those by the Appellant in pursuit of a fair and just determination of this appeal.
SUBMISSIONS MADE ON BEHALF OF THE PARTIES
The learned Counsel for the Appellant, Mr. Philip O. Ojo Esq., submitted that, the Court was wrong to have based its judgment on the Agreement of 1971, Exhibit B, which was not relevant to the suit before it and as they were not parties thereto.
Therefore, it cannot be enforced by any one of them for their benefit and cited the case of PLATEAU INVESTMENT PROPERTY DEVELOPMENT CO. LTD. V. EBHOTA & ORS 2001 FWLR PT. 64 374. He argued that, the evidence of CW2 contradicted what is contained in Exhibit B. That, the 1st Respondent failed to give precise description of his land which the Appellant did in his own case and that the DW6, of the Surveyor-Generals office testified that, the Oloro family land was not on Exhibit B. Therefore, the Court was wrong to have given judgment in favor of the 1st Respondent and cited the cases of ALHAJI ADEBOLA ELIAS V. CHIEF TIMOTHY OMOBARE 1982 ANLR PT. 270, C.O IKEWIBE V. RAPHAEL AGU 1986 C.A 6 PT. 1 P. 335 and OLOKOTINTIN V. SARUMI 1997 1 NWLR PT. 480 222 CA.
He submitted that the 1st Respondent failed to establish his claim of ownership through grant or inheritance. That, there was material contradiction which the Court should not have overlooked in the evidence of the 1st Respondent, where he denied that the name of his father was not Kehinde Ogunlade but Ilori Ajayi under cross-examination. Therefore, the history of his genealogy was not straight.
In support, he cited the cases of OLATUNBOSUN V. STATE 2011 ALL FWLR PT. 555 304, WACHUKWU V. ONWUNWANNE 2011 ALL FWLR PT. 589 1044, DAGAYYA V. STATE 2006 ALL FWLR PT. 308 1212 SC and MICHAEL EYO & EMEKA COLLINS ONUOHA & ANOR 2011 2-3 SC P. 241. He submitted that, the 1st Respondent failed to give facts of the founding of the land he claimed and the person on whom the title devolved since its first founding. In support, he cited the cases of ADETUTU ADESANYA V. ALHAJI S. D. ADEROUNMU & ORS. 2000 6 SC PT. 2 18 and SUNMONU OLOHUNDE & ORS V. PROF. S. K. ADEYOJU 2000 6 SC PT. III 118. He argued that, the evidence of the CW2, the Onigede of Igede differed from that of the 1st Respondents on how the latter got the land as one was through grant whilst that of the 1st Respondent was settlement which difference is not acceptable in law and cited in support the cases of LASISI KODE V. ALHAJI SUARA YUSUF 2001 4 NWLR PT. 703 and BALOGUN V. AKANJI 1988 1 NWLR PT. 70 301.
The learned Counsel submitted that there is no law that all parties to an action must give evidence at a trial and in support, cited the cases of ORUGBO V. UNA 2002 9-10 SC, C.R.S.N. CORP. V. ONI 1995 1 NWLR PT. 371 270 and DAIRO V. UBN PLC. & ANOR 2007 7 SC PT. II 97. That, the Appellant complied with the requirement of the law in the defence of his case at the Court below and his absence notwithstanding. He contended further that, the Court ignored the Appellants evidence as owner of the land in dispute and a miscarriage of justice thereby occasioned to him. That, the 1st Respondent was unable to prove a better title to that of the Appellant which was through possession and cited in support the cases of FABUNMI V. AGBE 1985 1 NWLR PT. 2 299 and EWULU V. NWAKPU 1991 8 NWLR PT. 210 435. Further that, Exhibit B did not vest ownership rights on the 1st Respondent. He submitted that, the consistent Appellants traditional evidence ought to have been preferred to the inconsistent evidence of the 1st Respondent and in support, cited the case of MOLEGBEMI V. AJAYI 2011 LPELR-CA/IL/33/2009.
On Exhibit B, the learned Counsel argued that, in spite of the provision of Section 151 of the Evidence Act, the map had no relevance to any of the parties in the suit before the Court.
That, the failure of the 1st Respondent to lead any evidence connecting him with the land was fatal to his case and cited in support the cases of ARO V. OBALARO 1968 NWLR 238 and ODOFIN V. AYOOLA 1984 II SC 72. Further, he argued that, mere tendering of a survey plan cannot constitute a root of title to land. He submitted therefore that, the judgment of the Court which was based on Exhibit B is perverse and occasioned miscarriage of justice to the Appellant. In conclusion, urged that the said judgment be set aside and the instant appeal be allowed.
Mr. Joseph A. Abere Esq., the learned Counsel for the 1st Respondent in his response submitted that, the 1st Respondent established his case through traditional evidence, Exhibits A and B and as well identified the land he claimed. Therefore, he was entitled to the declaration of title as well as the orders on injunction and award of damages and cited in support the cases of ANYANWU & 5 ORS V. UZOWUAKA & 13 ORS 2009 13 NWLR PT. 1159 445 and EZEUDU V. OBIAGWU 1986 2 NWLR PT. 21 208. That, on the contrary, the survey plan attached to Exhibit B did not show the name of the Appellants family, Ejemu family or any of the other family names mentioned by the Appellant as one of the land owning families at Igbo-Orioke in Igede-Ekiti, save that of the 1st Respondent. He submitted that, the Appellant who leased the land in dispute to the 2nd Respondent did not contend the identity of the land in his Statement of defence because from the pleadings by both the Appellant and the 1st Respondent, it is obvious that the identity of the land is not in issue to all the parties as both the Appellant and the 1st Respondent claimed declaration of title to the parcel of land in dispute at Igbo-Orioke, along Ilawe Road, Igede-Ekiti. Further, he argued that, the Appellant as 2nd Defendant at the Court below could not have counter-claimed over a piece of land he didn’t know and cited the case of ANYANWU V. UZOWUAKA supra in support.
He submitted that, the Court considered all the material issues raised by the parties before reaching a conclusion on the evidence presented and the law applicable therein. That thereby, it found that, the 1st Respondent proved his case through traditional evidence and documents and cited the case of IDUNDUN V. OKUMAGBA supra.
He argued that even where a party is in possession as claimed by the Appellant and the basis for his claim of ownership was not conclusive evidence, would fail more so where there was the 1st Respondent with proof of a better title to the land. That, the trespasser cannot take advantage of his trespass to the disadvantage of the real owner of the land and cited the cases of SKYE BANK PLC. V. AKINPELU (2010) 9 NWLR PT. 1198 P. 179 and MICHAEL OJIBAH V. UBAKA OJIBAH (1991) 6 SCNJ P. 156.
The learned Counsel for the 1st Respondent submitted that the Appellants failure to testify upon his statement on oath rendered the statement invaluable and of no moment as it goes to no issue and was fatal to his case and cited the case of EZEANAH V. ATTA 2004 ALL FWLR PT. 202 P. 1858. Further that, the material contradictions and inconsistencies in the case of the Appellant took it nowhere and that the judgment was not perverse and did not occasion a miscarriage of justice. In support, he cited the cases of ADEKUNLE V. STATE (2002) 4 NWLR PT. 756 186 and WOLUCHEM V. GUDI 1981 5 SC 291.
On the issue of general damages, he submitted that, the award against the Appellant and the 2nd Respondent was right and according to the law as the Court found the 1st Respondent to be the owner of the land in dispute and that the order of perpetual injunction was also as a result of the said findings to prevent further infringement of those rights and bring an end to litigation in that regard. He cited in support, the case of ANYANWU V. UZOWUAKA supra and urged that, the Appellants appeal be dismissed and to uphold the judgment of the Court below.
RESOLUTION OF ISSUES BY THE COURT
Having very carefully considered the submissions on behalf of the parties as contained in afore said briefs filed herein for the purpose of this appeal, I shall now proceed to consider and determine the issues by the Appellant as adopted.
It is elementary as it is 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 it 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, HAUMA V. AKPA-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 such as the one on hand, the onus was on the 1st Respondent to establish his claim by preponderance of evidence, credible and cogent. As the Claimant therefore, he had to satisfy the Court below that, upon the pleadings and evidence adduced, he was entitled to the declaration sought. See the cases of ADEWUYI V. ODUKWE (2005) ALL FWLR PT. 278 1100, IRAGUNIMA V. R.S.H.P.D.A (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.
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.
I shall now commence with the consideration of the issues and would consider Issues (i) and (iii) which are hereunder reproduced for ease of reference together as they are similar and to avoid any repetition.
ISSUES NO. I AND III
i. Whether Exhibit B on record with the survey plan attached to it sufficiently laid out titleship of the land on the claimant as required by law; If the answer is No, whether the claimant has sufficiently by oral as well as documentary evidence establish (sic) his title over the land in issue.
iii. Whether Exhibit B on record to all intent and purposes confers titleship of the said land on the claimant as against the defendant or any other person. AND/OR
Whether the trial Courts decision in finding titleship based for the claimant on Exhibit B is not perverse therefore perpetrating injustice on the appellant?
In its evaluation of the evidence before it, the Court found thus on page 277 of the Record:
The evidence on record which I believe based on oral testimonies and Exhibit B is to the effect that the land in dispute is within the Oloros family land.
The oral evidence of the 2nd Defendants (sic) witness cannot be used to contradict Exhibit B.While the Claimant has been able to show his land on the survey plan none of the 2nd Defendants witnesses was able to show their land on the plan..Exhibit was pleaded by the Claimant and is sufficiently pleaded in the pleadings.. There is (sic) no material contradictions in the case of the Claimant.
It is not the whole vast land at Igbo-Orioke at (sic) is in dispute but a small portion in which the mast was erected.
Therefore, it stated on page 278 of the Record as follows:
“The Claimant has proved his case by traditional historical evidence and documents.. I hold that from the totality of evidence adduced so far in this case, the Claimant has proved his case on preponderance of evidence.”
It correctly held that the Appellant did not abandon his case just because he opted not to testify. It is necessary to state that the choice was that of the Appellant either to defend or not to defend and he chose to have witnesses testify on his behalf as sufficient defence as well as in pursuit of his Counter-claim. Of course, the law is as was stated by the Court on page 278 of the Record to the effect that,
” ..His failure to come and give evidence has rendered his statement on oath invaluable and of no moment. It goes to no issue and this is fatal to his case.”
The Court as stated on page 279 of the Record found “material contradictions, inconsistencies and insufficiency” in the testimonies of the 2nd Respondent?s witnesses and consequently held as follows:
“It is therefore my humble view that the 2nd Respondent has failed to prove his case as required in law.”
Further held that,
“I hold that the 2nd Defendant (sic) counter claim on preponderance of evidence has not proved his case as the owner in possession of the land in dispute.”
and correctly found in that regard;
“The above goes without saying that the 2nd defendant (sic) Counter Claimant cannot give to the 1st Defendant what he doesn’t have by way of lease agreement or transfer culminating into the act of erecting of a mast on the land, and which act itself constitutes trespass to the land of the Claimant.”
See page 279 of the Record.
In conclusion, it held thus and correctly in my considered view and humbly:
“The case of the Claimant succeeds. It is hereby declared that the Claimant is the owner of a piece or parcel of land situate, lying and being at Igbo-Orioke along Ilawe Road, Igede-Ekiti
See page 279 of the Record.
On the identity of the land in dispute, which the learned Appellants Counsel has so strenuously made submission on, one could not agree more with the position of the law as correctly stated by the Court and the learned Counsel for both parties herein. It is clear and settled what the law is regarding the issue of identity of land in a matter where ownership of the land is in issue. The identity of the land must be clearly established with certainty before a declaration of title can be granted otherwise, the claim would fail. See the cases of BANIWA V. OGUNSOLA (1938) 4 WACA 159, TEMILE V. AWANI (2001) FWLR PT. 62 1937, DIKE V. OKOLO (1999) 10 NWLR PT. 623 P. 359, OGUN V. AKINYELU (2004) 18 NWLR PT. 905 P. 362, BABATOLA V. ALAWOROKO 2001 VOL. 5 MJSC 17 and OTANMA V. YOUDUBAGHA (2006) 2 NWLR PT. 964 337. Where there is no difficulty in identifying the land in dispute as herein in my humble view, from the facts as contained in the Record before this Court, a declaration of title may be made and particularly as a survey plan was tendered, Exhibit B, on page 131 of the Record through the CW2 who was a signatory and party to the Agreement in respect of the boundary of the lands and ownership thereof contained therein. See the cases of KYARI V. ALKALI & ORS 2001 LPELR SC 224/1993, CHIEF SOKPUI II V. CHIEF TAY AGBAOZO (1951) 13 WACA 241 and CHIEF DANIEL IBULUYA V. DIKIBO (1976) 6 SC 97.
Where the Claimant fails to lead satisfactory evidence of the boundaries of the land in dispute, his action must fail. It is without doubt that, the easiest and most common way of establishing the particular area or portion of land in question is when the survey of such area or portion is done and presented in Court. However, the law allows and recognizes that it is not in all cases for declaration of title to land that the survey plan must be produced. See the cases of KYARI V. ALKALI & ORS supra CHIEF SOKPUI II V. CHIEF TAY AGBAOZO supra, CHIEF DANIEL IBULUYA V. DIKIBO supra.
Exhibit B with the survey plan attached therewith was tendered as part of the case of the 1st Respondent in pursuit of his claim as the owner of the land in dispute on behalf of the Oloro Family of Igede Ekiti. For better appreciation and comprehension of the relevance of the said Agreement, Exhibit B, which was used at the Court below, it is therefore necessary that, the content of the Agreement be considered for clarity and the specifics. It is important to note that, the parties to Exhibit B were:
a. THE EWI OF ADO-EKITI
b. THE ONIGEDE OF IGEDE-EKITI
c. THE AKITIPA OF ODO-ADO-EKITI
AND
a. THE OLOJA ADIN AND REGENT OF ILAWE-EKITI
b. THE ODOFIN OF OKEBEDO QUARTERS, ILAWE-EKITI
c. THE ELEMO OF OKE EMO QUARTERS, ILAWE-EKITI
d. THE ELEMO OF OKELOYE QUARTERS, ILAWE-EKITI
e. THE ODOFIN OF OKEPA QUARTERS, ILAWE-EKITI
AND
THE ADMINISTRATOR FOR ADO DISTRICT COUNCIL
AND
THE ADMINISTRATOR FOR EKITI SOUTHERN DISTRICT COUNCIL
The Agreement was signed on January 2nd, 1971, to bring an end to the hostility and fight for land between the Ado Community in Ekiti land represented by the first three Rulers stated above, led by the Ewi of Ado-Ekiti as Grantors and the Ilawe-Ekiti Chiefs as Grantees on behalf of the Ilawe Community in Ekiti Land.
The two sets of Rulers/Heads litigated the matter in Suit No. AK/25/1958, in which judgment was given on April 20th 1963, declaring the Ewi of Ado-Ekiti as the owner of the land in dispute, which is contained in Plan No. 1 of Exhibit B as contained on pages 30-31 of the Record. Seeing the continued enmity and occasional violence between the two Communities, the then Western State Government of Nigeria, through a Committee it set up for reconciliation, got the Communities by the said accredited representatives to reach a final settlement on the issue of boundary which resulted as contained in the said Agreement in new boundary lines. Particularly of relevance herein, is paragraph 2 thereof, which described the new frontiers thus, on page 19 of the Record:
2. That the new boundary line between the Ado and the Ilawe communities shall run south-eastwards from IGBO AMADIN (north-west of Ilawe) through Igbo Orioke to a point north-east of Ilawe from where the said boundary line shall run straight south-westwards through the centre of OKE SAPA to meet the Odo-Ado-Ilawe Road and from there in irregular shape southwards, then south-eastwards, then south-westwards, which boundary line is more particularly delineated and marked YELLOW in the said Plan No. 2 attached hereto and more particularly described in the Schedule hereto.
In Plan No. 2 of Exhibit B as on page 32 of the Record, the area marked Portion A therein, according to paragraph 3 of the Agreement was vested in the Ilawe Community and gave them the right to remain in possession of and to continue to cultivate such holdings subject to payment of annual rent. It can be seen that part of the said Portion A is stated as the land claimed by Chief Oloro of Igede. From the Survey plan one finds that part of the land in dispute, Igbo-Orioke, is within the Igede undisputed land and falls within the new boundary line between the Ilawe Community and the Ado Community, see page 32 of the Record, Exhibit B and the unchallenged testimony of the CW2, Oba James Adelusi Aladesuru II, the Onigede of Igede-Ekiti on pages 10-11 and 130-134 of the Record. If that be the case, the land in dispute is clearly within and under the Ado Community, particularly Igede-Ekiti, which both the Appellant and 1st Respondent belong as they do not come under the Ilawe Community.
From the evidence before the Court, oral and documentary and as found by the Court, there was no contention or challenge of the ownership of Igbo-Orioke by the Igedes, Igede-Ekiti, particularly the evidence of the Appellants witnesses that the land is for all the families in Igede-Ekiti including the Oloro family of the 1st Respondent. In consequence, the land is under the Onigede of Igede-Ekiti. See paragraph 7 of the statement on oath of the Appellants 1st Witness, Chief Dare Agbelese on page 47 of the Record, statements on oath of the 2nd, 3rd and 4th Appellants witnesses on pages 50, 53 and 106 of the Record respectively. Chief Jacob Esan, the Aare of the Awusi family was mistakenly referred to as the 3rd Appellants witness instead of the 4th. See page 106 of the Record. Further from the Record, in Exhibit B, CW2 was a party to the Agreement as the Onigede of Igede-Ekiti in respect of the Igede land and as the trustee was not contradicted. The unchallenged evidence before the Court is that, the great grandfather of the CW2, as the Onigede of Igede gave Igbo-Orioke to the 1st Respondents great grandfather as the Chief Oloro for the Oloro family, one of the Igede Chiefs. From the foregoing, one finds that, the balance of probabilities tilts in favour of the 1st Respondent. See pages 130-134 of the Record.
It is trite that oral evidence cannot contradict documentary evidence which is the best form of evidence as it is firmly settled that documentary evidence is the best evidence. See the cases of A-G BENDEL STATE V. UBA LTD. (1986) 4 NWLR PT. 337 547. The document is the best proof of its contents, no oral evidence will be allowed to discredit the said content except in cases where fraud is pleaded. See the case of STABILINI & CO. LTD. V. NWABUEZE OBASI (1997) 9 NWLR PT. 520 293.
Therefore, the evidence of the Appellants witnesses and that of the 2nd Respondent that, Igbo-Orioke is owned by many and different families cannot contradict the documentary evidence, that is, the survey map and the Agreement signed on behalf of the parties therein since January 2nd 1971, in which the Onigede of Igede was a party and represented Igede-Ekiti in respect of the land belonging to Igede-Ekiti.
If that be the case, the probabilities are that the Onigede gave the land in question to Chief Oloro of Oloro family, which evidence was unchallenged and the name of Chief Oloro was on the survey plan in respect of the land. This in my considered view and humbly, supported and assisted the case of the 1st Respondent. It is important at this stage to state that, the argument by the learned Appellants Counsel that Exhibit B was not relevant to the 1st Respondent?s case and as the parties therein were not parties in the instant appeal, cannot hold.
In the light of the foregoing, one is of the considered view that the identity of the portion of land on which the Appellants mast was erected at Igbo-Orioke, was known to the parties, save perhaps the DW1, Doris Chukwuma, who testified that she did not visit the land but members of her work team did. For the other defence witnesses, their position was that the land in dispute was different from the Appellants land because it was on the opposite side across the High way. In that wise, they cannot again turn round to argue that the identity of the land in dispute was not known to them. See pages 137, 145 and 148 of the Record.
There was no controversy, contradiction or contention amongst the parties from the Record that, the area in dispute, Igbo-Orioke is on the survey plan, Exhibit B, attached to the Agreement. See pages 31 and 32 of the Record. One is therefore, unable to agree with the submission by the Appellant on the issue of identity of the land in dispute. The statements on oath of the Appellants witnesses afore stated, show that they were referring to the same property both sides knew it and were not mistaken about it. The fact that they argued that the land didnt belong to the 1st Respondent does not translate to non- identification of the land in dispute. In consequence, one is able to find that, Exhibit B was relevant and applied to the 1st Respondents case, the identity of the land was known and not an issue and therefore, the Court below was right to have found as it did in favour of the 1st Respondent.
ISSUE NO. II
i. Upon the evidence provided by the 1st respondent; was the trial Court right in granting the perpetual injunction and damages for the claimant and discountenance (sic) the evidence of the appellants witnesses on the altar of the absence of appellants personal evidence at the trial and thereby suppressing the uncontroverted overwhelming evidence of the witnesses of the appellant and witnesses of the 2nd respondent at trial (Grounds 2 and 3).
I have very carefully and painstakingly read through the Record before this Court and particularly the decision on pages 254-279 of the Record. Having so very carefully done, one finds that, the Court was right in granting perpetual injunction and damages for the 1st Respondent having found that he was entitled to be declared the owner of the land in dispute. See the case of OHIAERI & ANOR. V. AKABEZE & ORS 1992 2 NWLR 1 SC. Occupation or user of land for a long time does not entitle a party to ownership of the land. See the cases of THOMAS V. HOLDER 12 WACA P. 78, CHIEF TIJANI JEGEDE V. BAKARE GBAJUMO 1974 10 SC 183 and MOGAJI & ORS V. CADBURY NIG. LTD. 1985 LPELR-1889 SC. Where two persons are claiming concurrently to be in possession, the person with title is in possession as found in the instant appeal in favour of the 1st Respondent, the other person that is, the Appellant herein, a trespasser. Consequently, the award of damages and the order of injunction.
Regarding the fact that the Appellant did not testify in person, the position of the law is very clear and same was correctly stated by the Court which I shall repeat hereunder thus:
“..His failure to come and give evidence has rendered his statement on oath invaluable and of no moment. It goes to no issue and this is fatal to his case.”
It correctly held that, the Appellant did not abandon his case just because he opted not to testify. It is necessary to state that, the choice was that of the Appellant either to defend or not to defend and he chose to have witnesses testify on his behalf as sufficient defence as well as in pursuit of his Counter-claim. It is trite that pleadings, however strong and convincing the averments are, without evidence of proof thereof, go to no issue. See the cases of ADEPONLE SAIDI (1956) 3 SCNLR 203, IMANA V. ROBINSON 1979 3-4 SC1 and GEORGE V. DOMINION FLOUR MILLS LTD. (1963) 1 SCNLR 117. It must be noted that, the Court went ahead and evaluated all the evidence before it including that of the Appellants witnesses. Or how else did it arrive at the findings made in respect of the material inconsistencies and contradictions in the testimonies of the Appellants witnesses. In the light of all the foregoing paragraphs of this Judgment, one is unable to find that the decision of the Court is perverse. Consequently, no injustice was occasioned to the Appellant. Issue no. II is equally resolved against the Appellant.
In the result, this appeal cannot be allowed, it therefore fails and is hereby accordingly dismissed.
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 this appeal fails and that the same be dismissed.
Appeal dismissed.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
Appearances:
P.O. Ojo, Esq.For Appellant(s)
Ebenezer Gbenga Alabadan, Esq. for 1st Respondent.
R.A. Oshodi Esq. for the 2nd Respondent.For Respondent(s)
