MR. ENOCK O. I. OJEKAN V. CHIEF S. O. OYEWALE
(2011)LCN/4623(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of June, 2011
CA/I/174/04
RATIO
PROOF OF TITLE TO LAND: WHETHER ANY PROOF OF ONE OF THIS FIVE WAYS IS SUFFICIENT IN ESTABLISHING TITLE TO LAND
It is trite that in order to establish title to land, any proof of one of the five ways is sufficient as each of them stands or falls on its merit. One of the ways pleaded does not need, in the case of failure to prove it, the support of another one not directly pleaded as the root of title. See IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC at 227; AWENI & ANOR. VS. OLORUNKOSEBI & ANOR. (1991) 7 N.W.L.R. Part 203 Page 336 at 344 and ONWUGBUFOR VS. OKOYE (1996) 1 N.W.L.R. Part 924 at 252. The five ways of proving ownership of tire to land are; (a) Traditional evidence. See Section 45 of the Evidence Act; (b) Production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved unless they are produced from proper custody in the circumstances giving rise to the presumption in favour of due execution in the case of documents 20 years old or more at the date of the contract. (c) Acts of persons claiming the land such as selling, leasing or renting out all or parts of the land or farming on it or a portion of it are also evidence of ownership provided the acts extend over a sufficient length of time and are numerous and positive to warrant the inference that the person is the true owner. (d) Acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece of land with reference to which such acts are done. (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 MODUPE FASANMI, J.C.A.
TRADITIONAL EVIDENCE: NATURE OF THE TRADITIONAL EVIDENCE OR HISTORY IN RESPECT OF OWNERSHIP OF LAND; HOW TO PLEAD AND PROVE TRADITIONAL EVIDENCE AS PROOF OF TITLE TO LAND
The Court in the case of FAYEMI VS. AWE (2009) 13 N.W.L.R. Part 1164 Page 315 at 319 on traditional evidence in respect of land stated: “Traditional evidence or history in respect of ownership of land is evidence albeit admissible hearsay as to the rights alleged to have existed beyond the time of living memory proved by members of the family or community who claimed the land, subject of dispute as their own”. The Supreme Court in the case of ACHIAKPA VS. NDUKA (2001) 74 N.W.L.R. Part 734 Page 623 at 633 stated how to plead and prove traditional evidence as proof of title to land as follows:- “It is not sufficient for a party who relies for proof of title to land on the basis of traditional evidence to merely plead vaguely that he and his predecessors in title had owned and possessed the land from time immemorial. Such a party to succeed must plead and prove facts as to: (a) Who founded the land; (b) How the land was founded (c) Particulars of the intervening owners through whom he claims.” PER MODUPE FASANMI, J.C.A.
DECLARATION OF TITLE TO LAND: DUTY OF THE PLAINTIFF SEEKING DECLARATION OF TITLE TO LAND
The onus is on the Plaintiff seeking declaration of title to land to satisfy the court that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought by him. In proving his title, he can only rely on his own evidence atone and not on the weakness of the Defendants’ case. PER MODUPE FASANMI, J.C.A.
PLEADINGS: EFFECT OF PLEADINGS NOT SUPPORTED BY EVIDENCE
It is the law that facts pleaded but not supported with evidence are deemed to have been abandoned. Consequently it goes to no issue see JADOCOM LIMITED VS. OGUN ELECTRICAL (2004) 3 N.W.L.R. Part 589 Page 153 at 184 Paras C – D where this court stated thus: “Further it is elementary law of pleadings, that pleadings not supported by evidence goes to no issue as well as evidence led on unpleaded facts.” See further OGBEIDE VS. OSULA (2000) 2 N.W.L.R. Part 886 Page 86 at 132-133 Paragraphs H – B. PER MODUPE FASANMI, J.C.A.
DECLARATION OF TITLE TO LAND: DUTY OF A CLAIMANT WHOSE CLAIMS FOR DECLARATION OF TITLE TO LAND IS BASED ON TRADITIONAL HISTORY
Where a claim for declaration of title to land is based on traditional history, claimant needs to adduce cogent and conclusive evidence of traditional history. See GBADAMOSI VS. TOLANI Supra at 367 Paragraphs G – H and SANUSI VS. OBAFUNWA (2006) 28 W.R.N Page 136 at 167 – 168 lines 45 – 20. PER MODUPE FASANMI, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
MR. ENOCK O. I. OJEKAN Appellant(s)
AND
CHIEF S. O. OYEWALE Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court sitting in Ibadan. The judgment was delivered on the 16th of July 2005. Appellants were the Defendants at the lower court. The Plaintiffs at the Court below claimed the following reliefs:-
(1) 1st Plaintiff claims against the Defendants jointly and severally;
(a) A declaration that 1st Plaintiff is the proper person entitled to the grant of Statutory/Customary Right of Occupancy in respect of a large piece or parcel of land at Alona in Ope-Agbe Area Olomi, off Olojuoro Road, Ibadan. An area verged red excluding the area verged green, purple and yellow in the survey plan number LSAT/Y168 drawn by Winfield and Associates Limited Surveyors.
(2) The 2nd Plaintiff claims against the Defendant’s jointly and severally;
(a) A declaration that the 2nd Plaintiff is the proper person entitled to the grant of Statutory/Customary Right of Occupancy in respect of a large piece or parcel of land situate, lying and being at Alona in Ope-Agbe Area Olomi, off Olojuoro Road, Ibadan. An area verged blue in the survey plan number LSAT/Y168 drawn by Winfield and Associates Limited Surveyors.
(3) That both 1st and 2nd Plaintiffs claim against the Defendants;
(a) That the Defendants, their agents, privies and or anyone who bought or claim through them i.e. the Defendants be perpetually restrained from and further acts of trespass or alienation of the land belonging to the 1st and 2nd Plaintiffs.
The Plaintiffs case on their pleadings is that their ancestor, Ope-Agbe was a warrior; he was Balogun and later became the first Baale of Ibadan in 1850. He acquired a large tract of land on which he settled some of his followers, his children, warriors, slaves and servants. After his death, his descendants have been exercising acts of ownership by farming on and selling portions to other persons like the 2nd Plaintiff. The 2nd Plaintiff was forced to re-purchase the land sold to him by the 1st Plaintiff’s family from the 1st Respondont who used the soldiers from the 2nd Mechanised Division, Nigerian Army.
While the case of the Defendants on the pleadings is that the land in dispute is their ancestor, Ogedengbe, Aboluwode, a warrior who settled on the land. After his death, his descendants from his direct children to the Defendants have been farming on the land. Ope-Agbe who hailed from Ogbomosho has no land around the Defendants family land and he is not the owner of the land in dispute. Ope-Agbe trespassed on the Respondents family land by selling two acres thereof to the 2nd Plaintiff. When the 1st Defendant discovered the trespass, he caused signboards to be erected on the land to warn people that the land belongs to his family. He also caused those found on the land to be arrested by the police. He wrote a letter to the Public Relations Officer, 2nd Mechanized Division, Nigerian Army to assist him to get rid of those who were laying claim to the land. The 2nd Plaintiff on the intervention of the army paid a total sum of #4,000:00 to the Army to re-purchase the land.
The two original Plaintiffs were dead and were substituted by the order of this court. The original Plaintiffs testified in support of their claim and called five other witnesses while the 1st Defendant testified in defence of the claim and called four other witnesses.
At the end of the trial, the learned trial Judge preferred the evidence of the Plaintiffs to the Defendants and found that the Plaintiffs claim succeed in its entirety. Dissatisfied with the judgment, Appellants appealed to this court vide notice and grounds of appeal filed on the 18th of September 2003.
In compliance with the rules of this court, Appellants filed their brief of argument on the 17th of January 2007 but deemed properly filed on 18/1/07. Respondent’s brief of argument was filed on 26/6/08.
Appellants distilled three issues for determination as follows:-
(a) Whether the Plaintiffs traditional history as narrated by P.W.4 satisfied the laid down principles consequent upon which the Plaintiffs were entitled to judgment;
(b) Whether the act of possession is of any positive effect in the fact of a defective traditional history;
(c) Did the learned trial judge have justification to have imported the doctrine of laches and acquiescence into this suit? If the answer is in the negative, what is the effect of the action?
The Respondents formulated two issues from the grounds of appeal filed thus:
(1) Whether in the circumstances of this case the trial court was right in accepting and acting on the traditional evidence proffered by the 1st Plaintiff/Respondent;
(2) Whether the trial court was right in accepting and acting on more than one method or way of proving title to land as the trial court did in this case.
Since the parties raised virtually the same issues, I shall be guided by the first two issues formulated for the determination of this court by the Appellant in this appeal. Appellants issue three and the two issues formulated by the Respondent, are subsumed in issues one and two of the Appellant which will be considered in the determination of the appeal.
ISSUE ONE:
(1) Whether the Plaintiffs traditional history as narrated by P.W.4 satisfied, the laid down principles consequent upon which the plaintiffs were entitled to judgment.
Let me begin by restating the substance of the argument of Counsel for the parties on this issue. The brief settled by Mr. Oluyele Delano for the Appellants argued that parties in this suit brought their claim on the basis of traditional evidence. The Plaintiffs pleaded the history of their root of title, so were the Defendants. P.W.4 referred to the fact that Ope-Agbe was the owner of the land by acquisition. The initial Plaintiff on record was one Alhaji Oladoja Sanusi. He claimed to be a descendant of Ope-Agbe. He submitted that P.W.4 Alhaji Oladoja Sanusi did not give evidence of the particulars of intervening owners through whom he claims. Learned Counsel relied on the case of ACHIAKPA VS. NDUKA (2001) 14 N.W.L.R. Part 794 Page 623 at 655-656. He argued that the traditional evidence of the Plaintiffs was seriously defective.
Learned Counsel for the Appellants submitted further that 2nd Plaintiff is not a member of Ope-Agbe family. The first Plaintiff who claimed to be a member of the family of Ope-Agbe has to establish this in evidence. Without this, the first Plaintiff would have failed to establish his locus standi. He conceded the principle of law that every member of a family has the right to protect the family property. He referred to the case of SOGUNLE & OTHER VS. AKERELE & OTHERS (1966) N.S.C.C. 190 at 191 Ratio 1. Submitted that 1st Plaintiff having failed to establish in evidence the particulars of the intervening owners through whom he claimed has failed to establish his locus standi. Learned Counsel for the Appellant urged the court to resolve issue one in favour of the Appellant.
Learned Counsel for the Respondent submitted that the Respondents relied on traditional history in proving their title to the land in dispute. He reproduced paragraphs 4, 5, 6, 7, 8, 10, 11, 12 and 13 of the amended statement of claim. He also reproduced the pieces of evidence of the 1st Plaintiff/P.W.4 in support of his pleadings on page27 of the record wherein P.W.4 stated as follows:
“The name of my family is Ope-Agbe.
The land my family sold to the 2nd Plaintiff is at Papa Eleta Area Olomi Road, Ibadan. The whole area of Papa Eleta belongs to Ope-Agbe family. Ope-Agbe was a warrior. He was once an Olubadan of Ibadan Land, He died as an Olubadan. Ope-Agbe was the original owner of the land stretching from Eleta to Papa Eleta where the land is located.”
4th P.W. stated further in his evidence in chief that:
“Ope-Agbe settled on the land in dispute after Ope-Agbe inherited the land. After his death the land has been passing from one generation to generation. It is the head of family who always takes charge, the family used to grant portion to other for farming and we used to sell portions anytime the family needed money …”
Learned Counsel for the Respondent argued further that the 1st Plaintiff/4th P.W. successfully pleaded the fact of settlement/traditional history and gave evidence on such facts and the trial Judge made a pronouncement on it.
He referred to the case of ALLI VS. ALESINLOYE (2001) 16 W.R.N. Page 17 particularly at Page 34 where the Supreme Court stated inter alia.
“It is now recognized that the fact of first settlement upon land seems to be one of the oldest methods of acquiring title to land. As I have observed, if traditional evidence and this includes evidence of first settlement, is satisfactorily placed before the court and is accepted, title to the land can be declared on such evidence of tradition alone”.
Submitted further that the learned trial Judge evaluated the piece of evidence placed before it by the parties and made a finding at page 109 of the record that;
“There is no doubt that both the Plaintiffs’ pleadings and Defendants pleadings complied with the above requirement”.
Learned Counsel for the Respondent submitted that the learned trial Judge was right to have given judgment to the Plaintiff on the traditional history brought by the Plaintiff because where evidence of traditional history is found to be cogent and established, it can sustain a claim for declaration of title to land. He relied on the cases of F.M. ALADE VS. LAWRENCE AWO (1975) 4 S.C. Page 215 at 228; OLUJEBU OF IJEBU VS. OSO (1972) 5 S.C. Page 143 at 151 and ATANDA VS. AJANI (1989) 3 N.W.L.R. Part 111 at 511.
Concerning the locus standi of the 1st Plaintiff/4th P.W. Learned Counsel for the Respondent submitted that part of the first paragraph of the amended statement of claim reads:
“The 1st Plaintiff is one of the descendants of Baale Ope-Agbe family. He is an accredited representative of Ope-Agbe family”.
In support of the above pleaded facts, the 1st Plaintiff/4th P.W. stated in his evidence in chief that:
“The name of my family is Ope Agbe”
And under cross examination he confirmed and stated thus:
“….It is my family land, my ancestor who owns the land is Baale Ope-Agbe…..”
He submitted that plethora of authorities have held that any member of the family can protect or has the right to protect the family property. 1st plaintiff/4th P.W. is hereby protecting the family property from been trespassed. He cited the cases of SOGUNLE & OTHERS VS. AKERELE & OTHERS (1966) N.S.C.C. 190 at 191 and AKERELE VS. LABEDI (1965) L.C.R. at 35. He urged the court to resolve issue one against the Appellant.
I have carefully considered the amended statement of claim, the statement of defence, the supporting evidence and more importantly the judgment of the lower court. It is common ground that where a claim for trespass is coupled with a claim for an injunction as in the instant case, the title of the parties to the land in dispute is automatically put in issue.
It is trite that in order to establish title to land, any proof of one of the five ways is sufficient as each of them stands or falls on its merit. One of the ways pleaded does not need, in the case of failure to prove it, the support of another one not directly pleaded as the root of title. See IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC at 227; AWENI & ANOR. VS. OLORUNKOSEBI & ANOR. (1991) 7 N.W.L.R. Part 203 Page 336 at 344 and ONWUGBUFOR VS. OKOYE (1996) 1 N.W.L.R. Part 924 at 252.
The five ways of proving ownership of title to land are;
(a) Traditional evidence. See Section 45 of the Evidence Act;
(b) Production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved unless they are produced from proper custody in the circumstances giving rise to the presumption in favour of due execution in the case of documents 20 years old or more at the date of the contract.
(c) Acts of persons claiming the land such as selling, leasing or renting out all or parts of the land or farming on it or a portion of it are also evidence of ownership provided the acts extend over a sufficient length of time and are numerous and positive to warrant the inference that the person is the true owner.
(d) Acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece of land with reference to which such acts are done.
(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.
In the instant case, both parties are relying on proof by traditional evidence. I will reproduce paragraphs 4 – 13 of the amended statement of claim which are of moment to the due consideration of this appeal which read:
“4. The ancestor of Ope-Agbe family, the 2nd Plaintiff’s Vendor was the first leader of Ibadan to be called Baale of Ibadan, Ope-Agbe came to Ibadan over a century ago and was installed Baale of Ibadan in 1850 AD.
5. Baale Ope-Agbe was a great warrior who distinguished himself as such, he was given the ‘Osi Balogun’ of Ibadan. It was from this rank that he rose to become the Baale of Ibadan in 1850 AD.
6. Baale Ope-Agbe as a good and famous warrior fought hard and acquired land stretching from Eleta, Elekuro Hills to Olomi off Olojuoro Road on which he settled some of his followers including his children, warriors, slaves and servants.
7. Baale Ope-Agbe as a distinguished warrior had a lot of lieutenant, aids, servants and children among whom are Orewusi, Ogundapo, Amoo, Atere, Onibuke, Ayobami, Ajayi, Olokofefe, Ajata, Kusidi, Ogunjinmi, etc.
8. Baale Ope-Agbe settled some of these lieutenants, aids and servants at Eleta, Elekuro and Olomi for example the ancestors of Onibuke and Amoo were settled in an area now known as Omiyale area, the ancestor of Olokofefe, Ogunjinmi and Kusidi were given absolutely and settled at an area now known and called Alona Area, all the places mentioned are within Olomi Off Olojuoro Road which forms part of the land acquired by Baale Ope-Agbe, Baale Ope-Agbe amongst other people settled Odewale Akano (a solider in his camp during Gbanamu war, who came from Aigberi near Odo-Otin at Oke-Eleta in Ibadan.
9. Baale Ope-Agbe died in 1851.
10. Since the death of Baale Ope-Agbe, the following have been the Mogaji of Ope-Agbe Family (a) Ojo Dawodu (b) Labiyi (c) Oomiyale (d) Oyekan (e) Amoo (f) Oyeyemi (g) Adeoye and (h) Sanusi Foyewa.
11. The present head of family of Ope-Agbe is Chief Sule Omiyale who is currently an High Chief in Ibadan.
12. All other area of land at Olomi which were not given out absolutely by Baale Ope-Agbe to his lieutenants, aids or servants devolved on the descendants of Ooe-Agbe and it came to be known Ope-Agbe family land part of which is shown in dispute Survey Plan No. LAST:Y:221 drawn by Watfield Associates (Licensed Surveyors) which the first Plaintiff will rely on and seek to tender during trial of this case.
13. All Mogaji of Ope-Agbe family both past and present in agreement with other disenchants of Ope-Agbe family exercised acts of ownership on Ope-Agbe family land at Olomi off Olojuoro Road, Ibadan part of which is shown in dispute Survey Plan No.LAST:Y:221 (mentioned supra) by farming on part or selling parts or granting part on Customary tenancy based on payment of Ishakole or granting part absolutely and by warding off trespassers by Court action. ”
The traditional history pleaded by the Defendants is contained in paragraphs 3 to 20 of the Statement of Defence. They read:-
“3. The Defendants aver that the land in dispute which is situate at Alona Village Olomi Area, Ibadan, Oyo State is an integral part of a large area of land which was settled upon by Ogedengbe Aboluwode the ancestors of the Defendants well over a hundred years ago.
4. Ogedengbe Aboluwode was a warrior as well as a farmer and he fought in the Ijesha and Jalumi Wars.
5. The entire area of land settled upon by Ogedengbe Aboluwode at Alona Village, Olomi Area Ibadan is verged red on Plan Number OYLD:0785:98:028 of 31-12-98 drawn by Y.O. Oladimeji Licensed Surveyor, whilst the area in dispute is edged Blue on the said plan. The Defendants will rely on this plan at the trial of the action.
6. The entire Ogedengbe Aboluwode’s land is bounded on the one side by Idi-Agbe family land, on the second side by Alona Fabunrni family land, on the top by a stream and at the bottom by Oloko family land.
7. Ogedengbe Aboluwode during his lifetime erected a hut on the land where he lived until he died. Ogedegbe Aboluwode begat (1) Bibilari (M) (2) Amusan (M) (3) Abodunrin (M) and (4) Ojekan (M).
8. Ogedengbe died many years ago, but after his death, his farmland was inherited by his above named children under native law and custom and they farmed on the land without any let or hindrance from anybody whatsoever and in addition they planted Cocoa, Cassava leaves, Oranges, Kolanuts, Maize, Yams and Vegetables on the land.
9. Bibilari begat Karimu Aremu (M), Amusan begat Ojesanmi (M), Abodunrin had four children; they are (1) Lawani Akanji (M), (2) Sanusi Adeosun (M), Amusa (M) and Sibuwola (F) whilst Ojekan had two children namely: (1) Ladipo (M) and (2) Raji (M).
10. Bibilari, Amusan, Abodunrin and Ojekan have all died. After their death, Ladipo the son of Oyekan farmed on the land cultivated the same without any let or hindrance from anybody. He too planted more food and cash crops on the land. Ladipo begat: (1) Enock Oladipupo Ishola Oyekan (m), the 1st Defendant, (2) Lekan (m) and Omoleye (f). Ladipo is dead. He died many years ago.
11. After his death, his junior brother, Raji succeeded to the land and he too farmed thereon without any let or hindrance from anybody whatsoever. He too planted more food and cash crops like Cocoa, Kolanuts, Oranges, Yams, 3assava, Maize and Vegetables on the land.
12. Raji was the father of (1) Lamidi (m), (2) Kelani (m) and Aolatu (f). Raji has also died. He died fairly long ago. After Raji’s death, Lawani Akanji the son of Abodunrin succeeded to the land. He too farmed thereon during his life time without any let or hindrance from anybody whatsoever.
13. Lawani Akanji begat: (1) Wulemotu (f), (2) Yinusa Alamu Abodunrin (m), (3) Mudasiru Akanmu (m) and (4) Fatimota Amope (f). Lawani Akanji is also dead.
14. After the death of Lawani Akanji, Sanusi Adeosun also farmed on the land and cultivated the same without any let or hindrance from anybody whatsoever. Sanusi Adeosun begat (1) Ganiyu Olagoke (m), (2) Mustafa Akangbe (m) and (3) Murana Amoo (m). Sanusi Adeosun is dead.
15. After the death of Sanusi Adeosun, Amusa, his junior brother and the successor to the land did not take to farming, hence the younger members of the family took to the land and started to farm on the land. But Amusa knows the land very well and he is conversant with the place. Amusa is dead. He died some years ago. He was over 90 years old.
16. Amusa is the father of Onaolapo (m) and (2) Aolatu (f). the younger members of the 1st and 2nd Defendants’ family who farmed on the land are (1) Onaolapo, son of Amusa Abodunrin, (2) Ganiyu Olagoke, son of Sanusi Adeosun (3) Enock Oladipupo Ishola Oyekan, son of Ladipo (the 1st Defendant) (4), Asimiyu and Fatai the children of Wulemotu daughter of Lawani Akanji.
17. The 1st and 2nd Defendants therefore aver that Opeagbe might have been a warrior, but the facts alleged in paragraphs 4, 5, 6, 7, 8, 10, 11 and 12 of the Statement of Claim are not true owner of the land in dispute which is an integral part of Ogedengbe Aboluwode’s land who was the ancestor of the Defendants. The Defendants therefore put the Plaintiffs to the strictest proof of these averments.
18. The Defendants deny the averments in paragraphs 13, 14 and 15 of the Statement of Claim and state that no Mogaji of Opeagbe exercised acts of ownership on their land at Alona Village Olomi and no part of their family land was ever given to any Lieutenants, aids or servants, of Opeagbe for any purpose whatsoever.
19. The defendants further aver that Opeagbe who hailed from Ogbomosho has no land around the Defendants’ family land and he is not the owner of the land in dispute. Opeagbe on arrival from Ogbomosho to Ibadan settled at Oke-Odo Kobomoje and not on the Defendants’ family land which includes the land in dispute.
20. Further to paragraphs 18 and 19 of the Statement of Defence, the Defendants aver that at no time did Adeoye grant any part of the defendants’ family land to anybody whatsoever for farming purposes on payment of Ishakole and nobody called Ogunranti was granted land around the land in dispute or any part of the Defendants’ family. Alona was not named Alona because of the children of Ogunranti was a Sculptor. Alona has been the name the area was called by local people well over a century ago”.
The Court in the case of FAYEMI VS. AWE (2009) 13 N.W.L.R. Part 1164 Page 315 at 319 on traditional evidence in respect of land stated:
“Traditional evidence or history in respect of ownership of land is evidence albeit admissible hearsay as to the rights alleged to have existed beyond the time of living memory proved by members of the family or community who claimed the land, subject of dispute as their own”.
The Supreme Court in the case of ACHIAKPA VS. NDUKA (2001) 74 N.W.L.R. Part 734 Page 623 at 633 stated how to plead and prove traditional evidence as proof of title to land as follows:-
“It is not sufficient for a party who relies for proof of title to land on the basis of traditional evidence to merely plead vaguely that he and his predecessors in title had owned and possessed the land from time immemorial. Such a party to succeed must plead and prove facts as to:
(a) Who founded the land;
(b) How the land was founded
(c) Particulars of the intervening owners through whom he claims.”
The evidence of the traditional history as pleaded in the statement of claim which came through P.W.4 is that Ope-Agbe settled on a large parcel of land stretching from Eleta to Papa Eleye where the land in dispute is located. He said the children of Ope-Agbe inherited the land after his death and the land has been passing from generation. The head of the family used to take charge of the land. They used to grant portions to others for farming and sell to some.
The Respondents who were the Plaintiffs at the trial court through P.W.4 stated that Ope-Agbe was the founder. Ope-Agbe was a warrior and he settled on the and in dispute after fighting Gbanamu war. The evidence of the particulars of the intervening owners through whom he claims was too vague as to meet the requirement of the law.
At page 28 of the record P.W.4 states in his examination in chief thus:
“The children of Ope-Agbe inherited the land after his death. The land has been passing from generation to generation. It is the head of the family who always takes charge”.
The pertinent questions would be “Who were the so called generations referred to and who were the heads of family”. The onus is on the Plaintiff seeking declaration of title to land to satisfy the court that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought by him. In proving his title, he can only rely on his own evidence atone and not on the weakness of the Defendants’ case. Respondent failed to prove the particulars of the intervening owners through whom he claims in his evidence. Want of such evidence in the case of the Respondents assertion created a mysterious gap which is fatal to the Respondent’s case. See ALLI VS. ALESINLOYE (2000) 4 SC Part 1 Page 111 at 125 or (2000) 6 N.W.L.R. Part 660 Page 177 and GBADAMOSI VS. TOLANI (2011) 5 N.W.L.R. Part 1240 Page 352 at 367 Paragraphs D-G. Paragraphs 9 & 10 of the Respondents Amended Statement of Claim are deemed abandoned where he pleaded
“(a) Baale Ope-Agbe dies in 1851;
(b) Since the death of Baale Ope-Agbe, the following have been the Mogaji of Ope-Agbe family (a) Ojo Dawodu (b) Labiyi (c) Omiyale (d) Oyekan (e) Amoo (f) Oyeyemi (g) Adeoye and (h) Sanusi Foyewa. ”
No evidence of the pleaded successive Mogaji’s was placed on record. It is the law that facts pleaded but not supported with evidence are deemed to have been abandoned. Consequently it goes to no issue see JADOCOM LIMITED VS. OGUN ELECTRICAL (2004) 3 N.W.L.R. Part 589 Page 153 at 184 Paras C – D where this court stated thus:
“Further it is elementary law of pleadings, that pleadings not supported by evidence goes to no issue as well as evidence led on unpleaded facts.”
See further OGBEIDE VS. OSULA (2000) 2 N.W.L.R. Part 886 Page 86 at 132-133 Paragraphs H – B”
The learned trial Judge at page 111 of the record found that:
“I have carefully examined the entire traditional evidence led by both parties, I prefer the evidence of the 1st Plaintiff though he did not mention the names of the head of the family who the Plaintiff pleaded in paragraph of statement of claims, the entire evidence leaves me in no doubt that the traditional evidence of the 1st Plaintiff is more probable than that of the first Defendant”.
The finding of the learned trial Judge in the circumstances of this case was not apt. The pleadings of the 1st Plaintiff/Respondent were not supported by evidence. The particulars of the intervening owners through whom he claims even though pleaded were not proved in evidence. The facts pleaded are therefore deemed abandoned. Where a claim for declaration of title to land is based on traditional history, claimant needs to adduce cogent and conclusive evidence of traditional history. See GBADAMOSI VS. TOLANI Supra at 367 Paragraphs G – H and SANUSI VS. OBAFUNWA (2006) 28 W.R.N Page 136 at 167 – 168 lines 45 – 20. Issue one is hereby resolved in favour of the Appellant.
ISSUE TWO
Whether the act of possession is of any positive effect in the fact of a defective traditional history.
Learned Counsel for the Appellant submitted that there is no doubt that the learned trial Judge gave judgment to the Plaintiff on the basis of traditional history. The learned trial Judge stated at page 112 of the record thus:
“From the entire evidence led in this case, I prefer the traditional evidence of the Plaintiff and reject that of the Defendant.”
He contended further that at pages 113 and 114 of the record, the learned trial Judge considered various acts of possession, he was of the firm view that Plaintiff’s family had exercised various acts of possession on the said land. Learned Counsel for the Appellant contended further that the learned trial Judge having rejected the evidence of the Defendant, they could not be said to be the true owner. Moreover, they are not counterclaiming. The Plaintiff’s claim is a claim for title and not for possession. The Plaintiff would either stand or fall with his claim for title. The Plaintiffs must satisfactorily establish their claim to title before the Defendant could be called upon to make a defence.
Submitted further that parties and courts are bound by their pleadings. He placed reliance on I.N.E.C. VS. RAY (2004) 14 N.W.L.R. Part 892 page 92 at 109 Ratio 26. The Plaintiff in their amended statement of claim relied heavily on settlement as their root of title. All acts of possession pleaded were in support of this root of title by settlement. The Plaintiff having failed to prove settlement could not rely on possession. He relied on MOGAJI VS. CADBURY LTD. (1985) 2 N.W.L.R. Part 7 Page 393 at 432 Paragraphs B – D. Learned Counsel for the Appellant urged the court to resolve this issue in favour of the Appellant in view of the defective traditional history.
Learned Counsel for the Respondent submitted that the trial court found as a matter of fact that the Plaintiff/Respondent has actually proved his root of title to the land in dispute vide traditional history. The learned trial Judge in the instant case having weighed the evidence of both parties as per their traditional history proffered in support thereof came to an inevitable conclusion and held at page 109 of the record that:
“There is no doubt that both the Plaintiffs pleadings and the Defendants pleadings complied with the requirements.”
The requirements mentioned are contained in the case of ACHIAKPAN VS. NDUKA (2001) 14 N.W.L.R. Part 734 page 623 at 633. This is to say that the traditional history put forward by both parties are competing. The trial Judge in finding out which of the two traditional evidence is more probable had to resort to the acts with living memory. He referred to the cases of ALADE VS. AWO (1975) 4 SC at 215 and ONWUKA VS. EDIALA (1989) 1 N.W.L.R. Part 96 at 186. The trial Judge considered the issue of activities on the adjacent pieces or parcels of land to the land in dispute. Exhibit D and judgment in suit no.1/62/88. It was after considering and evaluating the evidence concerning the contiguity of other pieces of land to the land in dispute and exercise of acts of possession over the land in dispute by the Plaintiff that made the trial Judge to prefer the traditional evidence of the 1st Plaintiff to that of the Defendant and even find it more probable.
Aside the traditional evidence, Plaintiff pleaded other means of proving their ownership to the land in dispute. He referred to paragraphs 12, 13 and L4 of the amended statement of claim on page 19 of the record. He equally referred to the evidence of P.W.1 at page 22, P.W.2 at page 23, P.W.3 at page 24 and P.W.4 at page 27 of the record of proceedings. To this end, the trial Judge was not in error to have considered other ways or methods of proving title to land the way she did in ascertaining which of the competing traditional history is more probable notwithstanding the fact that she has found the plaintiff’s traditional history to be conclusive and acceptable. Learned Counsel for the Respondent urged the court to resolve this issue against the Appellant dismiss the appeal and affirm the judgment of the trial court.
The question one will ask at this point is whether the mere fact that the Plaintiffs were in possession could grant them title. It is true that title to land could be gotten by act of long possession. The learned trial Judge based his judgment on traditional history but appeared to have been of the view that they have exercised enough act of possession so as to have granted them title. In my humble opinion, unless the origin of title is valid, the length of possession does not open invalid title to valid ownership title. See the case of MOGAJI VS. CADBURY LTD. Supra at 431 – 432 where the Supreme Court referred to the cases of THOMAS VS. HOLDER 12 W.A.C.A, Page 78 at 80, JEGEDE & ORS VS. GBAJUMO & ORS (1974) 10 SC Page 183 at 187 and DA COSTA VS. IKOMI (1968) 1 ALL N.L.R. Page 394 at 398-399. There must be a starting point or origin of valid title to a possession in evidence which will be the basis of an enforceable right as being claimed by the Respondents.
Respondents failed to give evidence of the particulars of the intervening owners. Facts pleaded but not supported with evidence are deemed abandoned and consequently go to no issue. It is settled that the type of possession, the admission of which is capable of raising the presumption of ownership of land under Section 146 of the Evidence Act must be that which amounts to dejure exclusive possession and not mere occupation. See EZUKON VS. UKACHUKWU (2004) 17 N.W.L.R. Part 902 Page 227 at 258 Para D. Want of cogent, credible and conclusive evidence of traditional history established is like a branch that cannot stand alone without the tree. One cannot put something on nothing and expect it to stand. See the case of U.A.C. VS. MACFOY (1962) A.C at 52 Per Lord Denning. Issue two is also resolved in favour of the Appellant.
Consequently, the appeal is meritorious. It succeeds and it is hereby allowed. The judgment of the lower court in suit no.I/236/79 delivered on the 16th of July 2005 is hereby set aside. Cost of (#30,000:0k) Thirty Thousand Naira only is hereby awarded against the Respondent.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now in draft the Judgment just delivered by my brother Fasanmi, J.C.A. and I also think the appeal is meritorious, and should be allowed. I also allow it and set aside the judgment of the trial court below. I just want to chip in this little bit of mine. PW4 stated in evidence that Ope-Agbe, plaintiff’s ancestor first settled on the land after which there was a generation of settlers following the Ope-Agbe line. More evidence should have been given and available particulars supplied as to these acts of succession in title but was not. To say in evidence that the land passed “from generation to generation” is vague and cannot be convincing proof of title. I also award N30,000.00 costs in favour of the Appellant against the Respondent.
SIDI DAUDA BAGE, J.C.A.: I have had the opportunity of reading in draft the comprehensive judgment prepared by my learned brother, M. FASANMI, J.C.A. The issues raised in the appeal have been dealt with in detail.
I agree with his reasoning and conclusion reached and I entirely agree that the appeal is meritorious. The appeal is also allowed by me.
I abide by the consequential orders contained in the said lead judgment including the order on costs.
Appearances
Mr Olayode Delano with Miss Bukola WilliamsFor Appellant
AND
Taiwo Ilori-OladeleFor Respondent
