MR. GABRIEL FAGITE AJEGBOMOGUN & ORS v. MR. ADE AYEOBA
(2019)LCN/13275(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/EK/54/2018
RATIO
LAND LAW: DECLARATION OF TITLE TO LAND: 5 WAYS OF PROVING TITLE TO LAND
The Supreme Court had in a plethora of cases stated that there are five (5) ways of proving or establishing title to or ownership of land. These are-
(1) By traditional evidence
(2) Production of documents of title duly authenticated in the sense that their due execution must be proved.
(3) By positive acts of ownership extending over a sufficient length of time.
(4) By acts of long possession and enjoyment of the land.
(5) By acts of long possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute. The law that the establishment of one of the five ways is sufficient proof of ownership.PER UZO IFEYINWA NDUKWE-AYANWU, J.C.A.
LAND LAW: DECLARATION OF TITLE: WHAT A PARTY PLEADING TRADITIONAL EVIDENCE MUST PROVE
In pleading traditional history in a claim for declaration of title, the party is expected to narrate the genealogical tree from the owning owner, the ancestor, in generations? appurtenant to him, down the line to the party. In other words, he must prove who founded the land in what manner the land was founded and the circumstances leading to it, and the successive person to whom the land thereafter devolved through the unbroken chain or in such a way that there is no gap which cannot be explained. See: ODI VS IYALA (2004) 8 NWLR Pt. 875 Pg. 283, EWO V. ANI (2004) 3 NWLR Pt. 861 Pg. 610.PER UZO IFEYINWA NDUKWE-AYANWU, J.C.A.
LAND LAW: PROOF OF TITLE : WHAT A PARTY MUST PROVE WHEN RELYING ON DOCUMENTS TO PROOF TITLE TO LAND
Conversely, if a party is relying on the production of documents in proof of his title, the documents must be duly authenticated. Their due execution must also be proved.PER UZO IFEYINWA NDUKWE-AYANWU, J.C.A.
LAND LAW: MERE PRODUCTION OF DOCUMENTS NOT SUFFICIENT IN A CLAIM FOR DECLARATION OF TITLE
However, the mere production of document of title is not sufficient in a claim for declaration of title to land. The Court must thereafter, satisfy itself that it is genuine. The Court in the case of OSAKWE VS NWOKEDI (2018) 45054, where Ogunwumiju JCA held:
There is no doubt that one of the ways of proving title to land is the possession of a valid instrument of grant. See Idundun vs Okumagba (1976) 9-10 SC pg. 246. In Romaine Vs Romaine (1992) 5 SCNJ Pg. 25 Nnaemeka Agu, JSC held as follows. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with the need for the Court to inquire into some or all of a number of questions including:
(1) Whether the document is genuine and valid.
(2) Whether it has been duly executed, stamped and registered.
(3) Whether the guarantor had the authority and capacity to make the grant.
(4) Whether the guarantor had in fact what he purported to grant, and
(5) Whether it has the effect claimed by the holder of the instrument.PER UZO IFEYINWA NDUKWE-AYANWU, J.C.A.
LAND LAW: DECLARATION OF TITLE: WHAT A CLAIMANT MUST DO
It is trite law that a claimant for declaration of title to land must prove his case if he intends to succeed by tendering the documents conferring title to him. The Certificate of Statutory Right of Occupancy Exhibit C he tendered was duly stamped and registered. A party who relied on a document in proof of his title to land must tender the document in evidence, as extrinsic evidence of the contents is not admissible in evidence. See: ADELAJA V. ALADE (1999) 6 NWLR PT. 608 PG 544.PER UZO IFEYINWA NDUKWE-AYANWU, J.C.A.
LAND LAW: DECLARATION OF TITLE: ONUS OF PROOF
It is trite law that a claimant to a declaration of title must win or lose by the strength of his case and not by the weakness of his opponent.PER UZO IFEYINWA NDUKWE-AYANWU, J.C.A.
WHETHER ACTS OF POSSESSION AND ENJOYMENT OF LAND MAY BE EVIDENCE OF OWNERSHIP OF EVEN OTHER NEIGHBORING LANDS
In UMEOJIAKO V. EZENAMUO (1990) LPELR 3367 THE SUPREME COURT PER NNAEMEKA-AGU, JSC, held:
Indeed it is a principle declared by statutes and affirmed in so many decided cases that acts of possession and enjoyment of land may be evidence of ownership over not only of that land which the acts are done, but also of other lands so situated or connected with it by locality or similarity that what is true of that piece of land is likely to be true of the other. See Section 45 of the said Act; OKECHUKWU VS OKAFOR (1961) 1 ALL NLR PG. 685 (1961) 2 SCNLR PAGE 369; IDUNDUN VS OKUMAGBA (1976) 9-10 SC PAGE 227.PER UZO IFEYINWA NDUKWE-AYANWU, J.C.A.
COST:WHERE A SUCCESSFUL PARTY WONT BE ENTITLED TO COST
It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlements. In making an award of costs, the Court must act judiciously and judicially. That is to say with correct and convincing reasons. See: ANYAEGBUNAM VS OSAKA (1993) 5 NWLR PT. 294, PAGE 449; OBAYAGBONA VS. OBAZEE (1972) 5 SC PAGE 247.? PER RHODES VIVOUR, JSC IN NNPC VS CLIFCO NIG. LTD. (2011) LPELR 2022. HACO LTD VS BROWN (1973) LPELR 1347.PER UZO IFEYINWA NDUKWE-AYANWU, J.C.A.
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
1. MR. GABRIEL FAGITE AJEGBOMOGUN
2. MR. SAMSON KOLAWOLE
3. AKINWUMI BENSON
4. MR. FANIMEYIN FATUROTI
5. MR. JOHN OLUWAFEMI Appellant(s)
AND
MR. ADE AYEOBA Respondent(s)
UZO IFEYINWA NDUKWE-AYANWU, J.C.A.: This is an appeal against the judgment of the High Court of Ekiti State delivered on 21st February, 2018 by Hon. Justice E. B. Omotoso.
By a Writ of Summons together with a Statement of claim dated 2nd November, 2016, the Claimant now Respondent claimed against the Defendants now Appellants as follows: –
(a) A declaration that Julius Ayeni Ayeoba family of Aafin Compound, Temidire Street, Ijurin Ekiti is the owner of the land that is situated, lying and being at Aafin Compound, Temidire Street, Ijurin Ekiti, measuring 4419.801 square meters, which is clearly delineated in survey plan number AK/5511/0D.
(b) The sum of N5,000,000.00 (Five Million Naira) being general damages for the trespass committed by the defendants, their agents, privies or servant on the Claimant?s parcel of land that is situated lying and being at Aafin Compound, Temidire Street, Ijurin Ekiti, measuring 4419.801 square meters, which is clearly delineated in survey plan number AK/5511/0D.
(c) INJUNCTION restraining the Defendant?s their agents, privies, servants from further trespassing on
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the said parcel of land of the claimant.
The Defendants/Appellants in opposition filed a Statement of Defence and Counter-Claim wherein it counter-claimed against the Claimant/Respondent as follows:
(a) A Declaration that the large expanse of land, laying, being and situate at Abebi Street, Ijurin Ekiti belongs to the Asa Family of Ijurin-Ekiti.
(b) An Order of injunction restraining the Defendant to the Counterclaim, Mr. Ade Ayeoba, his agents, privies or assigns from further trespassing on the said parcel of land.
(c) The sum of N1,000,000 being general damages for the trespass committed on the Counterclaims land at Abebi, Ijurin-Ekiti.
The Respondent further filed a reply to the Appellants? Statement of Defence and Defence to Counter-Claim.
At the close of pleadings the case proceeded to trial. At the trial the Respondent called one (1) witness (i.e. the Respondent) and tendered Exhibits A ? G & G1. The Appellants on their own part called three witnesses and tendered Exhibits H, H1, H2, H3, H3A and H3B.
At the conclusion of the trial and address of counsel the learned trial judge entered judgment for
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the Respondent while dismissing the Counter-Claim of the Appellants.
Dissatisfied with the said judgment, the Appellants filed a Notice of Appeal on 22nd March, 2018 consisting of six grounds of appeal.
In accordance with the Rules of this Court parties have filed and exchanged their briefs of argument.
The Appellants relied on their briefs filed on the 3rd August, 2018 but deemed properly filed on 10th October, 2018 – in which they distilled four issues for determination as follows: –
1. Whether the trial Court was right in coming to the conclusion that the particulars of traditional history pleaded by the Appellants in their Statement of Defence and Counterclaim was not sufficient to prove title to the land in dispute. (Grounds i & ii).
2. Whether the Court was right to have relied on and preferred Exhibit B? which is an Affidavit of Land Allocation and Exhibit C? which is a Certificate of Occupancy as a good root of title to land in view of the traditional evidence of DW1, DW2, and DW3. (Ground iv).
3. Whether the trial Court was right in disregarding the evidence of DW3 which has been pleaded in the
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Statement of Defence and Counterclaim. (Ground iii).
4. Whether the trial Court has the power to grant a relief not sought. (Ground vi).
The Respondent relied on the brief of argument filed on the 10th October, 2018 wherein he also raised four issues for determination as follows:-
1. Whether the lower Court was wrong to hold that the traditional history proffered by the defendants/appellants at the trial Court failed to completely satisfy the requirements of the law for proof of ownership by traditional history.
2. Whether the trial Court was wrong to have rejected the defendants/appellants oral evidence that sought to contradict the documentary evidence proffered by the claimant/respondent.
3. Whether the trial Court was wrong to have clearly pronounced his disbelief in the evidence proffered by DW3.
4. Whether the trial Court was wrong to have awarded cost in favour of the claimants/respondent that satisfactorily proved his entitlement to the reliefs soughs at the trial Court.
In response to the Respondent?s brief the Appellants also filed a Reply brief on 23rd October, 2018.
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I will utilize the issues articulated by Appellant in the determination of this appeal.
ISSUE 1
Learned counsel for the Appellants submitted that the Appellants having relied on traditional evidence as their root of title and had pleaded and established the following:
a. Who founded the land
b. In what manner the land founded
c. The names and particulars of successive owners through whom he claims.
It is the contention of counsel that trial Court was wrong to have held that the Appellants did not sufficiently prove their title to the land in dispute. Counsel referred to the Statement of Defence and Counter-Claim of the Appellants and the Statement on Oath of DW1, DW2 and DW3 respectively. He also referred to the cases of ISEOGBEKUN V ADELAKUN (2013) NWLR (Pt 1337) 140; DAKOLO V REWANE- DAKOLO (2011) 16 NWLR (Pt 1272) 22; NRUAMAH V EBUZOEME (2013) 13 NWLR (Pt 1372) 474.
Counsel also submitted that the Appellants having been granted the land in dispute some 400 years ago by the Baale of Ijurin before the said land in dispute was granted to the Respondent?s father by the same Baale in 1962, the Appellants being the first in time are the rightful
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owners of the land in dispute. He referred to the case of DAUDU V BAMIDELE (2000) 9 NWLR (Pt. 671) 199; THOMPSON V AROWOLO (2003) 7 NWLR (Pt 818) 163.
He thus urged this Court to hold that the Appellants have discharged the duty placed on them by law in proving title to land vide traditional history.
Learned counsel for the Respondent on the other hand submitted that contrary to the submission of Counsel for the Appellants, the Appellants failed to plead and establish the particulars of the intervening owners through whom they inherited the land in dispute. Counsel referred to paragraphs 8, 9, 10 and 11 of the Appellants? Statement of Defence where they pleaded traditional history.
He submitted that the Appellants having failed to satisfactorily trace the line of succession, the trial Court was right to have rejected the same. He referred to the cases of BALOGUN V YUSUF (2010) 9 NWLR (Pt 1200) 515; IBIKUNLE V LAWANI (2007) 3 NWLR (Pt 1022) 580; DAGACI OF DERE V DAGACI OF EBWA (2006) 7 NWLR (Pt 979) 382; OLOSE V OGUNBODE (2002) 1 NWLR (Pt 749) 611; EZE V ATASIE (2000) 10 NWLR (Pt 676) 470.
He also submitted that the Appellants (through
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DW1 and DW2) having giving contradictory evidence on what manner the land was founded, the trial Court was right in rejecting their traditional history. He submitted that while in paragraphs 11 and 12 of DW2 evidence in chief they claimed that it was the Baale of Ijurin that granted the land at Abebi including the land in dispute. In his Cross-examination DW2 denied that fact.
He thus urged this Court to hold that the Appellants failed to plead and give evidence of their traditional history to justify the granting to them a declaration of title to the land in dispute. He also urged this Court to resolve this issue in favour of the Respondent.
ISSUE 2
Learned counsel for the Appellants submitted that the trial judge was wrong to have relied on Exhibit B and C over the traditional history given by DW1, DW2 and DW3 in holding that the Respondent successfully established his title to the land.
It is the contention of counsel that Exhibit C which represents a Certificate of Statutory Right of Occupancy is not a conclusive proof of title to the land. It is the contention of counsel that the said Exhibit C is rather a rebuttable of presumption of
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exclusive possession, which can be revoked by the Court upon proof that another person has a better title to the land before its issuance. He referred to the cases of DADA V WILLIAMS (2013) 2 NWLR (Pt 1338) 260; FBN PLC V OKELEWU (2013) 13 NWLR (Pt 1372) 435. He submitted that in this instant case, Exhibit C cannot confer valid title to the land in favour of the Respondent whereas the Appellants had placed before the trial Court cogent evidence which showed that the Appellants have a better title to the land in dispute.
On Exhibit B, counsel submitted that Exhibit B being a mere affidavit and not a deed of conveyance, is in law incapable of transferring title in a land. He referred to the cases of OLANIYAN V FATOKI (2013) 17 NWLR (Pt 1384) 477; AGBOOLA V UBA PLC (2011) 11 NWLR (Pt 1258) 375.
He thus urged this Court to hold that the Respondent had not proved his title to the land in dispute as Exhibit B and C relied upon by the trial Court are not valid documents that can transfer interest in land.
Learned counsel for the Respondent on the other hand submitted that it is trite law that no oral evidence is admissible to contradict the contents
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of a document. He referred to the cases of YABATECH V M.C.D. LTD (2014) 3 NWLR (Pt 1395) 616; N.I.D.B V OLALOMI INDUSTRIES LTD (2003) 5 NWLR (Pt 761) 532.
He submitted that given the contradictory oral evidence proffered by the Appellants, to the credible and probable evidence of the Respondent which was also supported by documentary evidence (Exhibits B and C), the trial Court was right in rejecting the evidence of the Appellants while accepting that of the Respondent. He referred to the cases of ADEKUNLE V AREMU (1998) 1 NWLR (Pt 533) 203; ARABAMBI V ADVANCE BEVERAGES (200) 19 NWLR (Pt 959) 23.
Learned counsel for the Appellants in his reply submitted that the submission of the Respondent?s counsel to the effect that no oral evidence is admissible to contradict the contents of a document is misconceived. It is the contention of counsel that the Oral evidence adduced by the Appellants was meant to prove the fact that the land in dispute belongs to the Appellants and not to vary or proof the contents of any document. He also submitted that the oral evidence is cogent, direct and reliable, it can discredit documentary evidence.
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He also submitted that the documentary evidence tendered by the Respondent (i.e. Exhibit B and C) are void for the purpose of creating a legal interest in the said land. He referred to Section 77 of the Property and Conveyancing Law, Laws of Ekiti State 2010. He submitted that the said documents can only transfer equitable interest which means that both the Appellants? oral evidence and the Respondent?s documentary evidence are of the same status since both are claiming equitable interest on the land in dispute. He thus submitted that where the equities are equal, the first in time will prevail. He referred to the case of ACHILIHU V ANYATONWU (SUPRA).
In the instant case, counsel submitted that the Appellants? equitable interest precede that of the Respondent. He referred to paragraph 7, page 44 and paragraph 10 page 50 of the record of appeal. He thus urged this Court to so hold.
Furthermore counsel submitted that contradiction in the evidence of the Appellants were mere minor discrepancies. He referred to the cases of ILODIGIWE V STATE (2012) 18 NWLR (Pt 1331) 1; EZEWUDO V EZENWAKA & ORS (2016) LPELR ? 41019 (CA); EZEKWESILI V
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ONWUAGBA (1998) 3 NWLR (Pt 541) 277.
ISSUE 3
Learned counsel for the Appellants submitted that the Respondent having not challenged the evidence of DW3 in his Reply to the Statement of Defence to the effect that DW3 is a member of the Respondents family and that the then Ojunrin of Ijunrin who allegedly signed Exhibit B was an illiterate, the trial Court was bound to act on such unchallenged and uncontroverted evidence of DW3. He referred to the case of ANYABUNSI V UGWUNZE (1995) 5 NWLR (Pt 401) 125.
Learned counsel for the Respondent on his part submitted that it is trite law that no oral evidence is admissible to contradict the contents of a document. He referred to the case of OBIAZIKWOR V OBIAZIKWOR (2008) 8 NWLR (Pt 1090) 551; CHRISTABEN GROUP LTD V ONI (2008) 11 NWLR (Pt 1097) 84; YABATECH V M.C.D. LTD. He thus submitted that the trial Court was right in disbelieving the oral evidence of DW3 in view of Exhibits B and C.
ISSUE 4
Learned counsel for the Appellants submitted that the Respondent having not demanded for cost in his reliefs, the trial judge had no power to award the cost of N50,000.00 (Fifty Thousand Naira
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only) against the Appellants in favour of the Respondent. He referred to page 6 of the record of Appeal.
Learned counsel for the Respondent on the other hand submitted that based on the Rules of Court, the award of cost is within the discretionary power of the trial judge which is aimed at restituting or compensating the successful party to the extent of expenses incurred in the litigation process. He referred to Order 49 Rules 1 & 2 of the High Court of Ekiti State (Civil Procedure) Rules.
He further submitted that there is no provision in the Rules of the Court that requires a successful party from making a special or formal request before the trial Court which is clothed with competence to award cost to indemnify a successful party.
RESOLUTION
The Supreme Court had in a plethora of cases stated that there are five (5) ways of proving or establishing title to or ownership of land. These are-
(1) By traditional evidence
(2) Production of documents of title duly authenticated in the sense that their due execution must be proved.
(3) By positive acts of ownership extending over a sufficient length of time.
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(4) By acts of long possession and enjoyment of the land.
(5) By acts of long possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute. The law that the establishment of one of the five ways is sufficient proof of ownership.
He referred to the case of AYOOLA VS ODOFIN (1984) 11 SC pg. 120, NKADO V. OBIANO (1997) 5 NWLR Pt. 503 pg. 31, NKWO V. IBOE (1998) 7 NWLR Pt. 558 pg. 354, ADESANYA VS ADEROUNMU (2000) 6 SC Pt. II pg. 18.
The Appellants in the Court below decided to prove ownership of the land by traditional evidence. This entails that the Appellants who are relying on evidence of Traditional history must plead their root of title. Not only that, they must show in their pleadings who those ancestors of theirs were and how they came to own and possess the land and eventually pass it to them otherwise their claim will fail. Also, where a person traces the root of his title to a person or family he must establish how that person or family also came to have title vested in him. The principle applies to the defendant as well. See:
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IBIKUNLE VS LAWANI (2007) 3 NWLR PT 1022 pg. 580, OKOKO VS DAKOLO (2006) 14 NWLR Pt. 1000 Pg. 401.
In pleading traditional history in a claim for declaration of title, the party is expected to narrate the genealogical tree from the owning owner, the ancestor, in generations? appurtenant to him, down the line to the party. In other words, he must prove who founded the land in what manner the land was founded and the circumstances leading to it, and the successive person to whom the land thereafter devolved through the unbroken chain or in such a way that there is no gap which cannot be explained. See: ODI VS IYALA (2004) 8 NWLR Pt. 875 Pg. 283, EWO V. ANI (2004) 3 NWLR Pt. 861 Pg. 610.
Conversely, if a party is relying on the production of documents in proof of his title, the documents must be duly authenticated. Their due execution must also be proved.
The identity of the land in dispute was not an issue in the lower Court as both parties were not in doubt as to the identity of the land.
However, both parties knew the land but by different names. Therefore, the identity of the land was not in issue and needed minimal proof by both
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parties in the claim by the Respondent and in the Counter-claim by the Appellants. As rightly put by the learned trial judge in his judgment, where the land in dispute is known by the parties minimal proof of the land is required. In OSA VS APEM (1998) 8 NWLR Pt. 562, 492, the Supreme Court held-
that if the area in dispute is well known to both sides, the issue of proof of it does not arise, as the Court cannot possibly reach a conclusion that the area claimed is not certain.?
In the present Appeal, the Respondent as the claimant in the lower Court proved his title by tendering his title documents. He tendered Exhibit B & C which the Appellants as Defendants Counter-Claimants could not properly disparage.
Exhibit B is an affidavit stating that the Ojurin of Ijurin-Ekiti deposed to the fact that he allocated a plot of land at Temidire Street, Afin Compound to Mr. J. A. Aiyeola free of charge. He also indicated the area of land. He also stated that the allocation was done in 1962. This document was deposed to in 1981 before the Customary Court Ipoti-Ekiti.
After this affidavit, the Respondent?s father went ahead to
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register the land and acquired a certificate, Statutory Right of Occupancy.
However, the mere production of document of title is not sufficient in a claim for declaration of title to land. The Court must thereafter, satisfy itself that it is genuine. The Court in the case of OSAKWE VS NWOKEDI (2018) 45054, where Ogunwumiju JCA held:
There is no doubt that one of the ways of proving title to land is the possession of a valid instrument of grant. See Idundun vs Okumagba (1976) 9-10 SC pg. 246. In Romaine Vs Romaine (1992) 5 SCNJ Pg. 25 Nnaemeka Agu, JSC held as follows. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with the need for the Court to inquire into some or all of a number of questions including:
(1) Whether the document is genuine and valid.
(2) Whether it has been duly executed, stamped and registered.
(3) Whether the guarantor had the authority and capacity to make the
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grant.
(4) Whether the guarantor had in fact what he purported to grant, and
(5) Whether it has the effect claimed by the holder of the instrument.
It is trite law that a claimant for declaration of title to land must prove his case if he intends to succeed by tendering the documents conferring title to him. The Certificate of Statutory Right of Occupancy Exhibit C he tendered was duly stamped and registered. A party who relied on a document in proof of his title to land must tender the document in evidence, as extrinsic evidence of the contents is not admissible in evidence. See: ADELAJA V. ALADE (1999) 6 NWLR PT. 608 PG 544.
The appellants in this appeal stated in his pleadings and evidence in chief that the land in issue was granted to their family about 400 years ago. However, the appellant failed to trace the genealogy of this land beyond themselves. They ought to show who those ancestors of theirs were and how they came to own and possess the land and eventually pass it to them otherwise their claim shall fail.
The appellants could not substantiate their claim through traditional history to thwart the
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documents tendered by the Respondent as document of title. Also, in the Appellants? counter claim, they could not prove their title to entitle them to a declaration which they sought.
It is trite law that a claimant to a declaration of title must win or lose by the strength of his case and not by the weakness of his opponent. Moreover, the Appellants witnesses contradicted themselves as to whether the Baale of Ijurin granted the Appellants land including the land in issue.
The Respondent in proof also proved that the adjoining land belonged to him. He gave evidence of the two buildings his father had erected many years back without a whimper by the Appellants.
In UMEOJIAKO V. EZENAMUO (1990) LPELR 3367 THE SUPREME COURT PER NNAEMEKA-AGU, JSC, held:
Indeed it is a principle declared by statutes and affirmed in so many decided cases that acts of possession and enjoyment of land may be evidence of ownership over not only of that land which the acts are done, but also of other lands so situated or connected with it by locality or similarity that what is true of that piece of land is likely to be true of the other. See Section 45 of
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the said Act; OKECHUKWU VS OKAFOR (1961) 1 ALL NLR PG. 685 (1961) 2 SCNLR PAGE 369; IDUNDUN VS OKUMAGBA (1976) 9-10 SC PAGE 227.
The Respondent?s father had two buildings bordering the disputed land. The first one was built over 50 years ago and the second was built 30 years ago. It is the underdeveloped land between these two buildings that the Appellants? family had trespassed in 2015.
After the trespass, the Respondent reported the Appellants to the Community Reconciliation Committee. The Respondent?s petition Exhibit ?D? and the Appellant?s Reply Exhibit ?E? were tendered by the Respondent. The Reconciliation Committee held that the Respondent?s family were the owners of the land.
This fact was not disputed by the Appellants and therefore is adjudged to be the true state of facts as stated by the Respondent.
After all said, the Respondent proved that he had a better title than the Appellants and deserved to be declared owner of the land in dispute. The Appellants in their defence to the claim and their own counter-claim failed to establish their ownership of the land in
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dispute by traditional history, or even acts of long possession. The Appellants just appeared on the land in 2015 whereas, the first building by the Respondent?s father on the land was over 50 years.
I therefore, hold that the trial Court was right to have declared the Respondent the rightful owner of the land in dispute.
The amount of costs is entirely at the discretion of the Court; costs follow the event in litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlements. In making an award of costs, the Court must act judiciously and judicially. That is to say with correct and convincing reasons. See: ANYAEGBUNAM VS OSAKA (1993) 5 NWLR PT. 294, PAGE 449; OBAYAGBONA VS. OBAZEE (1972) 5 SC PAGE 247.? PER RHODES VIVOUR, JSC IN NNPC VS CLIFCO NIG. LTD. (2011) LPELR 2022. HACO LTD VS BROWN (1973) LPELR 1347.
That said, the Appellant has not shown that the trial Judge did not exercise his discretion in awarding cost judiciously and judicially. Therefore, this Court cannot upturn, the award of cost by the trial Court as it had been exercised judiciously
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and judicially.
This appeal is unmeritorious as all the four issues articulated by the Appellants had been resolved against them. This appeal is dismissed. I affirm the judgment of the lower Court in declaring the Respondent owner of the land in dispute.
Cost to the Respondent is assessed at N100,000:00.
FATIMA OMORO AKINBAMI. J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Uzo l. Ndukwe-Anyanwu JCA.
The claim of the Claimant before the lower Court was for:
A) A declaration that Julius Ayeni Ayeoba family of Aafin Compound, Temidire Street, ljurin Ekiti is the owner of the land that is situated, lying and being at Aafin Compound Temidire Street, ljurin Ekiti, measuring 4419.801 square meters, which is clearly delineated in survey plan number AK/5511/OD.
B) The sum of N5,000,000.00 (Five Million Naira) being general damages for the trespass committed by the defendants, their agents, privies or servants on the Claimants parcel of land that is situated lying and being at Aafin Compound, Temidire Street, ljurin Ekiti, measuring 4419.801 square
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meters, which is clearly delineated in survey plan number AK/5511/OD.
C) INJUNCTION restraining the Defendant?s, their agents, privies, servants from further trespassing on the said parcel of land of the Claimant. The Defendants/Appellants in opposition filed a statement of Defence and Counter/Claim wherein they counter-claimed against the Claimant/Respondent as follows:
(A) A Declaration that the large expanse of land, lying being and situate at Abebi Street, ljurin Ekiti belongs to the Asa Family of ljurin- Ekiti.
(B) An Order of injunction restraining the Defendant to the Counter-claim, Mr. Ade Ayeoba, his agents, privies or assigns from further trespassing on the said parcel of land.
(C) The sum of N1, 000,000 being general damages for the trespass committed on the Counter-Claimants land at Abebi, ljurin-Ekiti.
The learned trial judge entered judgment for the Respondent, whilst he dismissed the Counter-Claim of the Appellants.
Where a person as in the instant case, relied on traditional history as his root of title to land, the onus is on him to plead the root of title and the names and history of his
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ancestors. He should lead evidence to show same without leaving any gap. A Court has no jurisdiction to supply any missing link in a genealogical tree from progenitors to a claimant. See Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283 and Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242).
It is trite that a party who relied on traditional history would need to plead the names of ancestors to narrate a continuous claim of devolution not allowing there to be any gap or gaps defying explanation or leading to prima facie collapse of the traditional history. The history must show how the land by system of devolution eventually came to be owned by the Plaintiff. Awodi v. Ajagbe (2015) 3 NWLR (Pt. 1447) 578.
Where a case is fought on evidence of traditional history, the trial Court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstance of the case by weighing it against other evidence proffered before the Court.
In the instant case, the learned trial Judge was therefore right to have held that the Respondent proved his title and his evidence is more cogent and
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conclusive.
The evidence adduced by the Appellants was in my view, unsatisfactory and rightly disbelieved by the trial Court.
I am in total agreement with his Lordship that the Claimant/Respondent, on the preponderance of evidence, had proved his claims as made at the trial Court.
The manner of evaluation of evidence was not such that occasioned any miscarriage of justice as is clearly borne out in the judgment.
I join my Lord Uzo I. Ndukwe-Anyanwu, JCA in the lead judgment, in dismissing the appeal, and in affirming the trial decision as its presumption of correctness has not been dislodged in this appeal; in the face of the preponderating evidence in favour of the Respondent.
For the reasons set out herein and the more detailed and elaborate reasons in the lead judgment, I join without any hesitation in holding that Appellants? Appeal, seeking to set aside the judgment of the lower Court, is without merit and therefore deserves to be and is hereby also dismissed by me.
I abide by all consequential orders including order on costs.
PAUL OBI ELECHI. J.C.A.: I agree.
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Appearances:
Michael Afolayan, Esq.For Appellant(s)
Abiodun Obaweya, Esq.For Respondent(s)
Appearances
Michael Afolayan, Esq.For Appellant
AND
Abiodun Obaweya, Esq.For Respondent
