MR. JAMES BAMIDELE ADULOJU & ORS v. MR. MICHAEL OLUYEMI ALUKO & ORS
(2018)LCN/12195(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/EK/58/2016
RATIO
COURT AND PROCEDURE: WHEN A COUNTER-CLAIM IS MADE
“A counter-claim is an independent action and so the onus is on the Appellant to prove their said counter-claim if they must succeed. See Arab Chem Ltd. V. Owoduenyi (pt.1361) 89, 103. It is contended that from the pleadings and available evidence on record, the 1st Appellant has not established how they came about the land he is seeking a declaration relief thereon which is fatal. See Ukaegbu v. Nwololo (2009) 3 NWLR (pt. 1127) 194 at 220. Also, from the pleadings and available evidence on record, the Appellants have not been able to disclose or show the boundaries of the land in dispute whereas a piece of land on which a declaration is being sought ought to have boundaries and be ascertainable. See Otunla v. Ogunowo (2004) 6 NWLR pt. 868 184 at 200.” PER PAUL OBI ELECHI, J.C.A.
EVIDENCE: WHERE TWO PIECES OF EVIDENCE ARE PLACED ON IMAGINARY SCALE
“If the two pieces of the evidence of both parties are placed on either side of the imaginary scale of justice, whichever side that weighs heavier carries the day because it gets the judgment of the Court upon the well-known principle of adjudication in civil cases that proof is on a balance of probabilities or preponderance of evidence. See Mogaji v. Odofin (1978) 4 SC 91 at 96.” PER PAUL OBI ELECHI, J.C.A.
LAND LAW: CLAIM TO FAMILY PROPERTY
“The law is trite that a party such as the Respondents in the instant case, who claims exclusive title to family land against the entire family, must prove that there had been a partition of the land claimed. See Adesanya v. Otuewu (1993) 1 NWLR (pt. 270) 414 at 435. Also, in John Falaju v. Daniel Amosu (1983) 1 NWLR LPELR 1234 (SC) at page 34, the Supreme Court held that alienation of family land to build for residential purposes does not pass ownership despite the improvements on the land. See also Wulemotu Olagunro v. J. B. Ogunsanya & Anor (1970) LPELR 2557, Ojoh v. Kamalu (2005) LPELR 2389 (SC).”PER PAUL OBI ELECHI, 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
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
1.MR. JAMES BAMIDELE ADULOJU
(alias Adusco)
2. MR. ADEBAYO
3. MR. YISA BABATUNDE
4. MR. OJO OLUWADARE
5. MRS. DAMILOLA CAROLINE ROMINIYI
6. MISS MERCY OJO
7. MR. CLEMENT IBIRONKE
8. MR. DEMOLA MOGAJI
9. MR. KOLE OJO
10. MR. KAYODE AMUDE
11. MR. SAMSON OLUMUYIWA RODIYA
12. MR. NIYI BELLO
13. MR. OJO
14. ALH. ABDUL OLU FAKOREDE
15. MR. FATAI OGUNSAKIN
16. OJO ALIAS EBIRA
17. TAYE FAJANA
18. SOLA AKINLUSI
19. CHIEF SUNDAY OGUNJOBI
(For and on behalf of Fajemilua/Ogunjobi branch of Edemo family, Ado-Ekiti) – Appellant(s)
AND
1. MR. MICHAEL OLUYEMI ALUKO
2. MR. TUNDE ALUKO
3. CHIEF SAMUEL FAJEMILUA
4. MR. TAIWO AGIDIGBI
5. OLU AGIDIGBI
6. CHARLES OLADUNJOYE OLUSOMOKA (alias Oluarate)
(for themselves and other members of Fajemilua family of Ado-Ekiti) – Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Ekiti State High Court, delivered by Hon. Justice O.I.O. Ogunyemi of Ado-Ekiti Judicial Division on 31st day of March 2016, granting N5 Million general damages for trespass and an order of perpetual injunction in favour of the Respondents and against the Appellants. His Lordship dismissed the 1st Appellants counter claim.
Dissatisfied with the aforesaid judgment, the Appellants appealed against same vide notice of appeal filed on 11th April 2016.
FACTS: This is a land matter. By their Amended Writ of Summons filed on 18th November, 2013 at the Registry of the trial Court, the respondents claimed against the appellants jointly and severally as follows:
(a) The sum of N50,000,000.00 (Fifty Million Naira) only as compensation for damages for defendants, act of trespass on claimants land lying and situate at along Polytechnic Road, Area, Ado-Ekiti.
(b) A Perpetual and permanent injunction restraining the defendants, their agents, assigns privies and servants from committing any or further act of trespass on claimants land lying, being and situate at along Polytechnic Road, Ado Ekiti with the following boundaries:
(i) Chief Aromojo/Okunato families land
(ii) Obajio family land
(iii) Odolofin family land and
(iv) Ijan Ikare Road.
Upon the service of the aforesaid Amended Writ of Summons on the appellants, the 1st defendant counterclaimed against the respondents in a representative capacity as follows:-
(i) A declaration that the Ijelu farmland situate, lying and being at off Ikare Road, Ado-Ekiti belongs exclusively to the Edemo family of Ado Ekiti covered by Survey Plan JOE/OD/4034.
(ii) A declaration that no individual member or branch of Edemo family has the right to allot, sell and or let any part of Ijelu farmland, property of Edemo family, to any person, group of persons without the consent and authority of the Edemo who is the custodian of the aforesaid farmland.
(iii) An order of perpetual injunction restraining any member of Edemo family including the claimants family from allotting, selling and or letting any part of the aforesaid family land to any persons without the consent and authority of the Edemo family.
According to the respondents, the land in dispute belonged to them from time immemorial and was founded by Edemo Ategbeomoro (alias Agbonigbeokun) by settlement. They have been exercising various acts of ownership over the disputed land to the exclusion of any other person or group of persons until recently when the appellants challenged their rights over same which prompted then to institute this action.
Respondents admitted in their evidence that the parties in this case had a common ancestor in the person of the original founder of the land in dispute and that the 1st appellant was one of the successors to the chieftaincy title of Edemo, a chieftaincy title which belongs exclusively to the Edemo family. On their part, the appellants agreed with the respondents that the founder of the land in dispute was Edemo Ategbeomoro (alias Agbonigbeokun), their common ancestor. They maintained however that the entire land in dispute belonged to the whole Edemo family and that the holder of the Edemo family chieftaincy title has the power of control and management of same for the benefits of all members of the said larger Edemo family.
They insisted that no individual member or branch of the larger Edemo family can lay exclusive claim of ownership over the disputed land. Hence the 1st Appellant in his capacity as the holder of the Edemo chieftaincy title counter-claimed against the respondents. It is interesting to note that the 18th Appellant, Sola Akinlusi, a member of the respondents family (Fajemilua) gave evidence in support of the appellants case.
Similarly, the 3rd Respondent admitted under cross examination at page 314 of the record that he belonged to the Fajemilua branch of Edemo family.
After hearing the parties, the trial Court delivered its judgment, granting the claimants, claims and dismissing the 1st Appellants counterclaim.
Dissatisfied with the aforesaid judgment, the appellants appealed to this Honourable Court vide their Notice of Appeal filed on 11th day of April, 2016. The said Notice of Appeal contained five (5) grounds of appeal.
ISSUES FOR DETERMINATION
The Appellants identify the following issues for determination: –
1. Whether from the totality of the evidence before the trial Court the land in dispute belongs exclusively to the respondents branch of Edemo family in the absence of credible evidence of partition of same among the various branches of Edemo family. (Grounds 1, 3 & 5)
(ii) Whether the 1st Appellant did not prove his counter-claim before the trial Court. (Ground 4)
(iii) Whether the award of N5 Million general damages for trespass coupled with an order of perpetual injunction against the respondents was justified in law. (Ground 2)
ARGUMENT AND SUBMISSION ON ISSUE FOR DETERMINATION
ISSUE NO.1
Whether from the totality of the evidence before the trial Court the land in dispute belongs exclusively to the Respondents Branch of Edemo Family in the absence of Credible evidence of partition of same among the various branches of Edemo family.
The following facts are not in dispute between the parties: –
1. That both parties to this dispute are members of the same family i.e. Edemo family of Ado-Ekiti.
(2) Edemo family of Ado Ekiti is a land-owning family in Ado Ekiti.
(3) Edemo family was originally made up of Odo-Ile and Oke Ile branches. Later Odo Ile was divided into three branches.
(4) Respondents, 17th and 18th appellants are members of the same Fajemilua/Ogunjobi sub-branch of Odo Ile branch of Edemo Family.
(5) 1st appellant is from Oke-Ile branch.
(6) That the founder and the original owner of the land was Edemo Ategbeomoro (alias) Agbonigbeokun.
(7) Edemo Ategbeomoro was one of the past Edemos and chief of the parties family (i.e. Edemo family).
(8) Late Edemo Louis Babalola was the immediate predecessor of the 1st appellant Edemo Babalola was in full control and management of the farmland in dispute in his life time in his capacity as the Edemo.
(9) On the ascension to the throne, the 1st appellant in his capacity as the Edemo stepped into the shoes of his immediate predecessor in office as the manager of the farmland in dispute.
(10) All the royalties including rents recovered from the customary tenants and allotees of the farmland in dispute are shared among members of the entire Edemo family.
The 1st Appellant defended the suit at the trial Court in his capacity as the Edemo of Ado Ekiti. However, the Respondents in one breath claimed that the 1st appellant was not an Edemo. But in another breath, they said that the 1st Appellant had been removed as Edemo.
It is trite that any member of a family can sue to protect the family property. See Ita Peter Okon v Edet Bassey Okon (2014) LPELR 22648. And so it is submitted that the 1st Appellant is eminently qualified to counter-claim against the respondents to protect the joint family property which is the land in dispute. See Hanina Achan & Anor v. John Ede (2012) 4 4 NWLR (Pt.1290) 310 at 329.
The 1st Appellant in his evidence in chief stated that he was the Edemo, having succeeded Late Edemo Louis Babalola, the immediate. The 2nd Respondent Mr. Aluko Tunde Idowu also said that he is from Idemo. The 3rd Respondent Chief Samuel Fajemilua gave evidence as PW1 under cross examination admitted that his Fajemilua family was a branch of Edemo family which he said had two branches namely Odo-Ile and Oke-Ile.
The 1st Appellant succeeded late Edemo Louis Babalola, the later was in control of the land in dispute in his life time. The pertinent question to ask at this stage is when did the land in dispute translate to the exclusive property the Respondent family.”
It is clear from the evidence of the PW1 that the land in dispute originally belongs to the larger Edemo family and was under the control and management of the late Edemo Louis Babalola the immediate past Edemo and predecessor of the 1st appellant. The respondents now claim exclusive ownership of same. The burden of proof that the dispute land has ceased to be Edemo family land moves to and is on the respondents. See Adenle v. Oyegbade (1967) NMCR 136 at 138.
Learned Appellant counsel stated that the Respondents failed to prove how the land in dispute exclusively became theirs after the demise of the late Edemo Louis Babalola.
The Appellants vide 1st Appellant tendered in evidence, Exhibit C which is the layout for Edemo family at Ijelu farmland i.e. the land in dispute.
The learned trial judge found as a fact that there was no partition of the general family land as same was not pleaded neither was evidence adduced in that regard. His Lordship however somersaulted when he held that the respondents branch had been in long possession of the land in dispute without any disturbance.
The traditional history revealed, as the learned trial judge rightly found, that the 1st appellant and the respondents have traced their ancestral lineage to the same progenitor Edemo Ateogbomoro a.k.a. Agbonnigbeokun. Edemo Ateogbomoro was the founder of the land in dispute. There is no evidence on record of the partitioning of the land in dispute since its foundation. There is no evidence of partition of the said land on record. The land in dispute in the absence of partitioning remains family land of Edemo family. Being family land, it is subject to the conditions of disposal of family land. First appellant tendered the proposed residential layout of the Edemo family on the disputed land at Ijelu farmland and same was received in evidence by the trial Court as Exhibit C.
There was evidence on record that the disputed land was a joint property of the entire Edemo family and the proceeds realized therefrom are shared among the sub-units of the Edemo family. 1st Appellant succeeded the immediate past Edemo Louis Babalola whom the respondents admitted was in control and management of the disputed land during his reign as the Edemo.
There was no evidence of absolute grant of the land in dispute to the respondents family of the Edemo family.
Where both parties have accepted the land as family land, the onus in such circumstance has on the person who claims to be exclusively entitled to family land to prove it. See Oba Samuel Adenle v. Oyegbade (1967) NMCR 136 at 139, Meka & ORs. V. Aniafulu & Ors. (2006) ALL FWLR (Pt. 309) 1465 at 1472 (CA).
In the light of evidence of non-partitioning of the land originally owned by the larger family, the person claiming exclusive ownership cannot restrict his claim of inheritance to this father who is a member of the larger family. The evidence that he modernized the mud house and let it out to tenants is also not sufficient. So held the Court of Appeal in CHIEF ESOBO & ORS. V. CHIEF ASUQUO (ALL FWLR (pt. 359) 1355 or 1376 7 that the concept of inheritance does not enjoy exclusivity of knowledge and that there is need for the knowledge of persons present who can vouch for the transmission of the estate from the deceased to the beneficiary.
The learned trial judge based and concluded on the fact that the respondents have been in long possession of the land in dispute.
The decision of the learned trial judge was perverse as same was not based on the evidence on record. Long possession without more cannot confer title of family land to the respondents. The title remains in the entire Edemo family. See: AKPADIAHA v. OWO (2000) 8 NWLR (pt. 669) 439 or 453 paras G-H. The Supreme Court in OKUKUJE v. AKWIDO (2001) 3 NWLR (pt. 700) 261 or 294 paras G H, held that allotment of family land to any member of the family does not change the status of the family land.
There is evidence on record that every member of the Edemo family farm on the land in dispute. Some members have their huts and buildings thereon. Those whose properties were destroyed as a result of the development of the land in dispute by the Edemo family were adequately compensated by the said family. Proceeds from the sale of part of the family land were shared among family members. More importantly, the star witness of the respondents admitted under cross-examination on page 315 of the record that during the reign of the 1st appellants immediate predecessor in office, Edemo Louis Babalola, the land in dispute belonged to the whole Idemo family.
It is contended that, Judicial decisions are replete in the circumstance of the creation of family property. The most common circumstances in death intestate of a land owner, whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land. See: LEWIS v. BANKOLE 1 NLR 81, OLOWOSAGO v. ADEBANJO (1988) LPELP 2601 (SC) at pages 19- 20 paras E – C. It is trite that where a person i.e. the original owner of land died intestate as in the instant case, leaving many heirs behind and property will dissolve on the heirs and will become a communal or family property of all the members of the family. See: MOHAMMED v. KLARGESTER NIG. LTD. (2002) 14 NWLR (pt. 787) 335 or 362 paras A – D (SC).
It is also trite that it is the duty of a branch of family, in the instant case, the respondents, claiming ownership of family property to plead and prove partition. The respondents failed to discharge this burden of proof. See:AGBOKE v. IGBIRA (1997) 9 NWLR (pt. 519) 40 or 46-47 paras H-B; ADESANYA V. OTUEWU (1993) 1 NWLR (pt. 270) 414. The learned trial judge on page 463 of the record rightly found as a fact that the respondents did not plead partition of the family land.
The learned trial judge based his decision on mere long possession of the land in dispute. But a family land does not cease to be a family land only because members have allotments thereon. The members of the family only acquire a usufruct. See: AGBOKE v. IGBIRA (supra) on page 47 paras B-D. No member of the Edemo family can lay any absolute or disposable title to the land in dispute until same is partitioned.
See ABIOYE v. AFOLABI (1998) 4 NWLR (pt. 545) 296 or 307.
The Supreme Court in the case of NDUKWE v. ACHA (1998) LPELR 1977 (SC) at page 21 paras D – F held that on allotment of family land under customary law means no more than mere possession or license from the family to make use of its land. That act of allotment cannot and would not entitle him to a declaration of title to the land allotted. See: BAMGBOSE v. OSHOKO (1998)7 NWLR (pt. 557) (266) at page 277-278 paras. H-B, the Supreme Court held that mere possession or improvement on any family land by an allotee cannot ripen into ownership.
The learned trial judge erred in law by adjudging the respondents branch the owner of the disputed land on mere long possession without any proof of partition of the disputed farmland. See AGBOMEJI v. BAKARE (1998) NWLR (pt. 564) 1 at page 20 paras A-E.
More importantly, the 18th appellant who is a member of the respondents, family in his evidence in chief before the trial Court on pages 265 – 269 of the record said it emphatically that the land in dispute belongs to Edemo family.
This is an admission against interest of the respondents family. The respondents, star witness PW1 on page 314 admitted that both Fajemilua and Ogunjobi were born by the same father. Awogbekun and that Ogunjobi can lay claim to his inheritance. The question is how can the respondents family i.e. the Fajemilua branch now claim exclusive ownership of land belonging to the entire family in the absence of partition? It is against the principle of customary law. PW1 contradicted himself, having said earlier in his evidence in chief on page 167 of the record that Awogbekun gave birth to Chief Fajemilua who also inherited the land.
The Respondents failed to plead and prove the particulars of intervening owners of the land through whom they claim. See Owoade v. Omitola (1988) 2 NWLR) (pt. 77) 413 at 425, Fayemi v. Awe (2010) ALL NWLR (pt. 528) 862.
Finally on this issue, this Honourable Court is urged to resolve same in favour of the appellants, the respondents having failed to plead and prove how the land which they admitted was founded by their common ancestor became their exclusive property. Evidence abound that the land is and remains joint property of members of Edemo family including the respondents.
ARGUMENT AND SUBMISSION ON ISSUE NO. 2
Whether the 1st Appellant did not prove his counter- claim before the trial Court.
Learned counsel adopted his submissions in respect of issue No.1 and state further as follows:-
The 1st appellant who is the incumbent Edemo and head of the Edemo family counter claimed against the respondent thus:
(a) A declaration that the Ijelu farmland situate, lying and being at off Ikare Road, Ado Ekiti belongs exclusively to the Edemo family of Ado Ekiti covered by Survey Plan JOE/OD/4034.
(b) A declaration that no individual member or branch of Edemo family has the right to allot, sell and or let any part of Ijelu farmland, property of Edemo family, to any person, group of persons without the consent and authority of the Edemo who is the custodian of the aforesaid farmland.
(c) An order of perpetual injunction restraining any member of Edemo family including the claimants family from allotting, selling and or letting any part of the aforesaid family land to any person, groups of persons without the consent and authority of the Edemo family.”
On proof of title to land, the Supreme Court had long laid down the settled principle that there are five ways of proving title to land or ownership, see Idundun v. Okumagba (1976) 9-10 SC 227.
On the counter-claim, it is trite that it is separate and distinct action in the instant case, the parties are on common ground on the founder of the land in dispute. The evidence of the respondents witnesses already highlighted supra with the argument and submission on issue No. 1 supported the 1st appellants claim that the land in dispute belonged to the entire Edemo family. It is also on record that all branches of the Edemo family share the proceeds of sale of parts of the family land. The 1st appellant tendered in evidence the proposed residential layout in respect of the land in dispute. One of the customary tenants on the farmland gave evidence under cross-examination that the respondents branch collected royalties from the tenants as representatives of the entire Edemo family. In fact, the respondents through their witnesses established the case of the 1st appellant to the effect that the land in dispute belongs to Edemo family.
A family property remains a family property until same is partitioned. No individual member or branch of the family can lay exclusive ownership over same. Finally, on this issue, the Honourable Court is urged to resolve same in favour of the 1st appellant and against the respondents.
ARGUMENT AND SUBMISSION ON ISSUE NO. 3:
Whether the award of N5Milliom general damages for trespass coupled with an order of perpetual injunction against the Respondents was justified in law.
Learned counsel adopted his arguments and submission on issues 1 and 2 above and state further as follows:
Even though the respondents as claimants only claimed damages for trespass and injunction (and did not ask that title to the disputed land be declared in their favour), the fact that the appellants disputed that claim by setting up a contrary title of joint ownership of the land by first settlement of the land by their ancestor put title directly in issue. That being the case for the respondents to stand any chance of success they needed to comprehensively plead and prove the elements of traditional history of their ownership as known to law, namely how their said ancestor founded the land: and on unbroken line of it devolution of the land from its founder i.e. Edemo Ategbeomoro.
In the instant case, the respondents failed woefully to plead and prove the particulars of intervening owners through whom they claim having excluded other children of Ategbeomoro without evidence of partition.
The respondents who failed to demonstrate by evidence they adduced that they are in exclusive possession of the land in dispute, who failed to adduced any evidence of partition of the Edemo family land, who failed to plead and prove names and particulars of intervening owners, who admitted that their branch belonged to the Edemo family and who admitted under cross-examination that the proceeds of the farmland in dispute were always shared by all members of the Edemo family ought not to have been awarded any damages for trespass to the disputed land neither was it proper for the trial Court to have granted them an order of perpetual injunction.
The respondents failed to prove that the land in dispute was partitioned, it follows that the entire land in dispute remained Edemo family land. To that extent the appellants being members of Edemo family could not be guilty of trespass on the said family land.
The learned trial judge was in error to have awarded damages for trespass and a perpetual injunction against the appellants. More importantly there is no evidence on record that the appellants had acted contrary to the possessory rights of the family without the family consent. See SOWUNMI & ORS. V. AYINDE & ANOR. (2010) LPELR 4973 (CA) at 29-30.
Finally, on this issue, this Court is urged to resolve same in favour of the appellants.
In conclusion, it is demonstrated in the brief of argument why the decision of the learned trial judge ought to be set aside on the grounds that there was no evidence of partition of the Edemo family land on record, the admission of the respondents that the disputed land belonged to the entire Edemo family. Based on these and other evidence on record, he urged this Honourable Court to allow the appeal, set aside the judgment of the trial Court and grant the 1st appellants counter-claim.
On their own part, the Respondents filed and argued a preliminary objection to issues and grounds 1, 3, and 5 of the Appellants ground of appeal. He then proceeded to formulate the following issues for determination:
ISSUE FOR DETERMINATION:
Whether Issue 1 and grounds 1, 3 and 5 of the Appellants grounds of appeal competent. The Respondents motion dated 4th September, 2018 is praying this Honourable Court to strike out issue 1 and grounds 1, 3 and 5 of the Appellants grounds of appeal incompetence.
The application is brought under;
1. Order 6 Rule 1 of the Court of Appeal Rules 2016.
2. Order 10 Rule 1 of the Court of Appeal Rules 2016.
3. Section 15 of the Court of Appeal Act 2010 (as Amended)
4. Inherent jurisdiction of Court.
The grounds of the application are as follows;
i. Issue one does not emanate from any of the Appellants grounds of appeal but merely masquerading as an issue.
ii. There is no holding of the Court relating to branch or branches.
iii. Particulars of Appellants grounds of appeal did not talk of Respondents as constituting a branch.
iv. No issue was formulated from grounds 1, 3 and 5 of the grounds of appeal by the Appellants.
v. Grounds 1, 3 and 5 of the Appellants grounds of appeal have been abandoned.
vi. Issue one and grounds 1, 3 and 5 of the Appellants grounds of appeal are incompetent and liable to be struck out.”
In support of the application is an affidavit of (9) Nine paragraphs relied on by the Respondents Applicants.
A close scrutiny of issue 1 and grounds 1, 3 and 5 of the grounds of appeal reveals that the issue and the grounds are strange bed fellows and have nothing in common nor to do with each other.
Issue 1 merely masquerading as an issue whereas there is no nexus with the grounds from where the issue arose from. There is no holding of the Court relating to any branch or branches. Again, the particulars of grounds of appeal did not talk of Respondents as constituting a branch in any family. This is fatal. See Luna v. Cop Rivers State (2018) 11 NWLR (pt. 1630) p. 269, 282, G-H, 283 C-D., F.A.A.N. v. Green Zone Ltd, (2009) 10 NWLR (pt. 1150) 624 at 641.
Learned counsel submitted that once issues are not formulated from grounds of appeal, the effect is that those issues are abandoned and must be struck out and urged the Court to so do and strike out grounds 1, 3 and 5 as the issue formulated therefrom are incompetent. See Okonkwo v. Okonkwo (2004) 5 NWLR (pt. 865) 87 at 106.
In the alternative, he formulated –
Issues for determination in the main appeal.
1. Whether from the pleadings and available evidence on record, the Respondents proved their case and are therefore entitled to judgment. Grounds 1, 2, 3 and 5.
2. Whether the counter claim of the 1st Appellant was not properly dismissed Ground 4.
Argument on the issues
Issue 1 Proof of Respondents case
There are five ways of proving ownership of title to land namely;
i .Proof of traditional evidence
ii. Proof by production of documents of title duly authenticated, unless they are documents of 20 or more years old.
iii. Proof by acts of ownership in and over the land in dispute such as selling, leasing, making grants, renting out all or any part of the land or farming on it or portion thereof extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the person exercising proprietary acts is the true owner of the land.
iv. Proof of act of long possession and enjoyment of the land which prima-facie may be incidence of ownership and
v. Proof by possession of connected or adjacent land.”
See Idundun v. Okumagba (1976) 9/10 SC 227, see also Owhonda v. Ekpechi (2003) 17 NWLR (pt. 849) 326 @ 364 where the Supreme Court held as follows:
The law is that a party to a land dispute may plead and prove his title in any of the five recognized ways. All the modes of proof of title are independent and none is superior to the other. SeeIdundun v. Okumagba (supra), Karimu v. Fajube (1968) NMLR 151.
So where traditional evidence fails, a party may still rely on any of the four other modes to prove title to land in dispute.
SeeMkpinang v. Ndem (2013) 4 NWLR (pt. 1344) 302.
Learned Respondent counsel referred the Court to the facts pleaded in paragraphs 26, 27, 28, 29, 31, 32 and 33 of their amended Statement of claim and after considering the evidence arrived the came to the conclusion that;
There is clear cut evidence of continuous long possession of the land in question by Claimants without any disturbance until according to claimants, recently by the 1st Defendant/Claimants evidence that they have been farming for a long time on the disputed land was not contradicted. It is also in evidence that the Claimants have cash crops on the land which has been sold by the 1st Defendants.”
It is contended that the above holding of the trial Court is supported by evidence and it cannot be faulted, see Adejola v. Bolarinwa (2011) 12 NWLR (pt. 1261) 380 at 398 – 399. The act of long possession is one of the five ways of proving title to land. See Danjuma v. S.C.C. Nig. Ltd. (supra).
The duty on a claimant in a land matter is to show that he is in exclusive possession which the Respondents have shown an act the learned trial judge acknowledged and pronounced upon. The Respondents were rightly adjudged by the learned trial judge. He then urged the Court to dismiss the appeal. See Maishanu v. Anchau (2008) 6 NWLR (pt. 1084) p. 565 at 576, F-G.
Assuming the Respondents have sought for a declaratory relief and have not been able to prove the said declaration or that the declaration fails, the Respondents can still maintain an action in trespass and injunction because claim for trespass is not dependent on claim for declaration.
The Respondents having been adjudged to be in possession of the land by the learned trial judge, the judgment is unassailable. See Aremu v. Chukwu (2012) 3 NWLR (pt. 1288) 587 at 625, the Court is urged to dismiss the appeal.
On the order for injunction and damages, granted to the Respondents by the learned trial judge against the Appellants are well founded since the Respondents in exclusive possession of the said land with their crops therein. See F.H.A. v. Emelie (2013) 3 NWLR (pt. 478) 478 at 496, Danjuma v. S.C.C. (supra) Bankole v. Dada (2003) 11 NWLR (pt. 830) 174 at 228 – 229, Oyebamiji v. Audu Fabiyi (2003) 11 NWLR (pt. 834) 271.
Concurrent possession to the same land is unknown to law. See Oyebamiji v. Fabiyi (supra).
The Appellants did not challenge or controvert the various act of possession of the Respondents on the land which is tantamount to admission in law.
Apart from being in effective possession of the land, the Respondents have equally traced their root of title to Edemo Ategbeomoro alias Agbonigbeokun who founded the land through settlement. See paragraph 29 of the amended statement of claim.
The Appellants defence is that the land in dispute belongs to Idemo community and not to the Respondents because according to them the land was not partitioned.
The award of damages by the learned trial judge is proper contrary to the argument of learned counsel to the Appellants. Learned counsel contends that the Respondents were in possession of the land and have established their title thereon and they are as such entitled to damages which was rightly awarded by the learned trial judge. DW1 said the individual families have been on their respective land from time immemorial which means they are in active possession of the area occupied by each family.
DW2 confessed that they sold the land and Respondents also said the Appellants caused destruction to the crops thereon. The above was not challenged under cross examination as such, the Respondents are entitled to damages which was correctly awarded by the learned trial judge. See Ajayi v. Jolaosho (2004) 2 NWLR (pt. 856) p. 89 at 98. The Honourable Court is urged to dismiss the appeal.
In proof of counter-claim by the Appellant, it is submitted that the Appellants have failed to prove their counter-claim and are not entitled to judgment and so the dismissal by the trial judge of their counter-claim was justified, sound and proper.
A counter-claim is an independent action and so the onus is on the Appellant to prove their said counter-claim if they must succeed. See Arab Chem Ltd. V. Owoduenyi (pt.1361) 89, 103.
It is contended that from the pleadings and available evidence on record, the 1st Appellant has not established how they came about the land he is seeking a declaration relief thereon which is fatal.
See Ukaegbu v. Nwololo (2009) 3 NWLR (pt. 1127) 194 at 220. Also, from the pleadings and available evidence on record, the Appellants have not been able to disclose or show the boundaries of the land in dispute whereas a piece of land on which a declaration is being sought ought to have boundaries and be ascertainable. See Otunla v. Ogunowo (2004) 6 NWLR pt. 868 184 at 200.
By Appellants relief (a) as follows;
A declaration that the Ijelu farmland situate, lying and being at off Ikare Road, Ado-Ekiti belong exclusively to the Edemo family of Ado-Ekiti covered by Survey Plan JEO/OD/4034.”
Here a survey plan is under reference and specifically relied upon. The survey plan under reference was rejected and marked rejected because it was made lis pendis.
It is submitted that with the survey plan out of the way of circulation of existence and in the absence of any boundaries of the land pleaded in the statement of defence and counter-claim of the Appellants, relief (a) must give way as nothing can be put on nothing because it will refuse to stand.
According to learned counsel, what the Appellants tendered is a layout plan Exhibit C which is not the same as a survey plan.
The Court is therefore urged to dismiss the appeal and affirm the judgment of the lower Court since the Appellants have failed to ascertain or identify the land. See Otunla v. Ogunowo (supra).
Appellants relief (b) states as follows;
(b) A declaration that no individual member or branch of Edemo family has the right to allot, sell and or let any part of Ijelu farmland, property of Edemo family, to any person, group or persons without the consent and authority of the Edemo who is the custodian of the aforesaid farmland.
What are the boundaries of the Ijelu land that individual members should not sell? It is the land covered by survey plan number JOE/OD 4043 that had already been rejected and was so marked. This relief has also failed.
(d) An order of perpetual injunction restraining any members of Edemo family including the Claimants family from allotting, selling and or letting any part of the aforesaid family land to any person, groups of persons without the consent and authority of the Edemo family.”
What is the boundary of the aforesaid farmland? It is the land covered by survey plan number JOE/OD/4043 that was already rejected in evidence.
To argue this issue, learned counsel posed the question what is the boundary of the aforesaid family land? He answered same and stated that it is the very land covered by the survey plan number JOE/OD/4043 that was already rejected in evidence.”
On injunction, it is submitted that injunction cannot lie on a piece of land whose boundaries are not ascertained. See Oladejo v. Adeyemi (2000) 3 NWLR (pt. 647) 24 at 40.
vi.Exhibit C is a proposed document and not real document. Exhibit C is futuristic, hypothetical and academic because it says proposed which is fatal. See A.G. Anambra State v. N.I.W.A. (2004) 3 NWLR (pt. 861) p.640 at 655 E-G.
If part of the land in dispute or the land in dispute has been sold to individuals by the 1st Appellant, can the land still be referred to as Edemo family land or the exclusive property of the Edemo family of Ado-Ekiti having divested her interests, rights and privileges from the land. The land no longer resides in Edemo family.
Assuming without conceding that same belongs to Edemo family therefore, it is submitted that the counter-claim was properly dismissed by the trial Court. The Court is urged to affirm the judgment of the lower Court.
On the other hand, if according to learned counsel that the land has been sold to people, then what is the need for a declaration that the land should not be sold or the need for an order of injunction restraining people from selling a piece of land that has already been sold by the 1st Appellant as couched in reliefs (b) and (c) of the Appellants. The consequence is that Appellants reliefs in the counter-claim are spent, stale, sterile, still, vague, otiose, spurious and moribund. From all the above, the Court is urged to dismiss the appeal with substantial cost and affirm the judgment of the lower Court.
The Appellants filed a Reply brief dated 25/9/2018 and filed on the 26/9/2018. In opposing the preliminary objection, the Appellants filed a counter-affidavit of seven paragraphs on the 17/9/2018. He then submitted that issue one of the Appellants grounds of Appeal was formulated from grounds 1, 3 and 5 of the Appellants grounds of appeal as contained in the notice of
Appeal filed on the 11/4/2016. It is submitted that grounds 1, 3 and 5 arose from the decision and findings of the trial Court, and urged the Court to discountenance the preliminary objection and dismiss same accordingly.
On the identity, it is submitted that both parties are in common on the identity by the land in dispute as same belongs jointly to all members of Edemo family. Therefore the identity of the dispute land is not in dispute between parties proof of same is unnecessary. See Alechenu v. Oshoke (2002) 9 NWLR (pt. 773) 521, Dada v. Dosunmu (2006) 18 NWLR (pt. 1010) 134.
The Court is therefore urged to dismiss the preliminary objection, allow the appeal, set aside the judgment of the trial Court and grant the 1st Appellants counter-claim.
I cannot agree with the submission of the Appellant that issue 1 and grounds 3 & 5 arose from the findings and decision of the lower Court. The preliminary objection fails and is hereby dismissed.
In the consideration of this appeal on its merit, I am of the view that the issues as formulated by the Appellant will meet the justice and merit of the Appeal.
Accordingly, I hereby adopt same as follows
i. Whether from the totality of the evidence before the trial Court, the land in dispute belongs exclusively sto the Respondents branch of Edemo family in the absence of credible evidence of partition of same among the various branches of Edemo family. (grounds 1, 3 & 5)
ii. Whether the 1st Appellant did not prove his counter-claim before the trial Court (ground 4)
iii. Whether the award of N5Million general damages for trespass coupled with an order of perpetual injunction against the respondents was justified in law (ground 2)
RESOLUTION OF ISSUES
ISSUE ONE
Whether from the totality of the evidence before the trial Court, the land in dispute belongs exclusively to the Respondents branch of Edemo family in the absence of credible evidence of partition of same among the various branches of Edemo family grounds 1, 3 and 5 of the notice and grounds of appeal.
From the records, it appears that the following facts are not in dispute between the parties:
1.That both parties to this dispute are members of the same family i.e. Edemo family of Ado-Ekiti.
(2) Edemo family of Ado-Ekiti is a land-owning family in Ado-Ekiti.
(3) Edemo family was originally made up if Odo-Ile and Oke Ile branches. Later Odo Ile was divided into three branches.
(4) Respondents, 17th and 18th appellants are members of the same Fajemilua/Ogunjobi sub-branch of Odo Ile branch of Edemo family.
(5) 1st appellant is from Oke-Ile branch.
(6) That the founder and the original owner of the land was Edemo Ategbeomoro (alias) Agbonigbeokun.
(7) Edemo Ategbeomoro was one of the past Edemos and Chief of the parties family (i.e. Edemo family)
(8) Late Edemo Louis Babalola was the immediate predecessor of the 1st appellant. Edemo Babalola was in full control and management of the farmland in dispute in his life time in his capacity as the Edemo.
(9) On the ascension to the throne, the 1st appellant in his capacity as the Edemo stepped into the shoes of his immediate predecessor in office as the manager of the farmland in dispute.
(10) All the royalties including rents recovered from the customary tenants and allotees of the farmland in dispute are shared among members of the entire Edemo Family.
Worthy of note at this initial stage of this matter is that the 1st Appellant defended the suit at the Lower Court in his capacity as the Edemo of Ado-Ekiti even though the Respondents are doubting his capacity in that direction. In spite of the posture of the Respondents on the true identity of the Edemo of Ado-Ekiti, the 2nd Respondent, Mr. Aluko Tunde Idowu cleared the air when stated in his statement thus;
The name of the father of the 1st defendant (now appellant) is Williams. The great warrior was the father of the 1st defendant. 1st defendant was made Edemo in early 90s. I am from Idemo. (emphasis mine)
At the trial, PW1 admitted under cross-examination that the immediate past Edemo or the 1st Appellants predecessor in office was in control of the land in dispute which was held in common by members of the family.
The 1st Appellant in his evidence in chief stated that he was the head of Edemo family and the custodian of the said family land, he being the Edemo, having succeeded late Edemo Louis Babalola, the immediate past Edemo.
The 3rd Respondent, Chief Samuel Fajemilua gave evidence under cross-examination that his Fajemilua family was a branch of Edemo family when he said thus;
I belong to Fajemilua branch of Edemo family.
From the evidence of PW1 both in his evidence in chief and under cross-examination, the immediate past Edemo or the 1st Appellants predecessor in office Appellants predecessor in office was in control of the land in dispute which was held in common by members of the family.
The Respondents pleaded and relied on traditional evidence being one of the ways of proving ownership or title to land. See the case of Idundun v. Okumagba (1976) 9 – 10 SC 227, Owhonda v. Ekpechi (2003) 17 NWLR (pt. 849) 326 at 364 where the Supreme Court held as follows:
The law is that a party to a land in dispute may plead and prove his title in any of the five recognized ways. All the modes of proof of title are independent and none is superior to the other. See Idundun v. Okumagba (supra) Karimu v. Fajube (1968) NMLR 151. So where traditional evidence fails, a party may still rely on any of the four other modes to prove title to land in dispute.
See also Mkpinang v. Ndem (2013) 4 NWLR (pt. 1344) p.302 at 312 – 313 H-C where the Supreme Court held as follows:
It is trite that, it is the pleadings and evidence adduced by a plaintiff for declaration of title that determines whether he has proved his case or not. In other words, proof of a claim for a declaration of title by means of traditional evidence is not mutually exclusive with other means of proving the claim. See Kojo v. Bonsie supra; Motunwase v. Sorungbe (1988) 4 NWLR (pt. 92) 90. Thus, a plaintiff may adopt one or more of the ways of proving ownership for example, traditional evidence or by means of evidence of acts of ownership or possession. It is only where a plaintiff fails to prove his case by means of traditional evidence and also fails to establish it by means of evidence of acts of ownership and possession, when these were the means of traditional evidence and also fails to establish it by means of evidence of acts of ownership and possession, when these were the means pleaded and relied upon that the plaintiffs case should be dismissed.”
The Respondents pleaded in paragraphs 26, 27, 28, 29, 31, 32 and 33 of their Amended Statement of claim. In particular is paragraph 26 (a-e) which states thus –
26 the Claimants are members of the Fajemilua family of Ado-Ekiti.
(a)The Claimants institute the action herein for themselves and on behalf of the Fajemilua family of Ado-Ekiti whose consent and authority they have so to do.
(b) The 1st Claimanat is the head of the Fajemilua family of Ado-Ekiti.
(c) The 2nd Claimant is the Secretary of the Fajemilua family of Ado-Ekiti.
(d) The 3rd Claimant is a principal member of the Familua family of Ado-Ekiti,
(e) The Defendants are not members of Claimants family.
As part of its judgment, the trial Court found as a fact that both Appellants and Respondents traced their ancestral lineage to a common progenitor, the founder of the disputed land Edemo Ategbeomoro a.k.a Agbonigbeokun. Also on acts of long possession on the part of the Respondents, on the land in dispute, the trial Court held that:
There is clear cut evidence of continuous long possession of the land in question by Claimants without any disturbance until according to Claimants, recently by the 1st Defendant/Claimants evidence that they have been farming for a long time on the disputed land was not contradicted. It is also in evidence that the Claimants have cash crops on the land which has been sold by the 1st Defendant.
There is no doubt that long possession is one of the five ways of proving title to land. See Danjuma v. S.C.C. Nig. Ltd. (supra). The duty of a claimant in a land matter is to show that he is in exclusive possession to the exclusion of the Appellants and other branches constituting Edemo family. Every member of Edemo family has a right to farm on the family land, therefore, evidence of long possession or farming on a family land by a member or group of members, or family members is not tantamount to exclusive ownership of family land in the absence of partition. It is trite to say that a land in the family which has not been partitioned is prima facie family land.
The law is trite that a party such as the Respondents in the instant case, who claims exclusive title to family land against the entire family, must prove that there had been a partition of the land claimed. See Adesanya v. Otuewu (1993) 1 NWLR (pt. 270) 414 at 435. Also, in John Falaju v. Daniel Amosu (1983) 1 NWLR LPELR 1234 (SC) at page 34, the Supreme Court held that alienation of family land to build for residential purposes does not pass ownership despite the improvements on the land. See also Wulemotu Olagunro v. J. B. Ogunsanya & Anor (1970) LPELR 2557, Ojoh v. Kamalu (2005) LPELR 2389 (SC).
In the instant appeal, the mere fact that some members of the Edemo family have been farming on the land for a long period of time cannot ripen to ownership by the said members i.e. the Respondents family.
It may be pertinent at this juncture to further look at the evidence of PW1 when he said;
Edemo family has two branches, Odo-Ile and Oke-Ile. Fajemilua and Ogunjobi are from the Odo-Ile Branch. Omotoye and Afojoweye are also from Odo Ile. Osanyindipe is also from Odo-Ile. 1st defendant is from Oke-Ile Branch. Members of Edemo family hold meeting together.
This piece of evidence from PW1 no doubt has strengthened the case of the Appellant particularly the evidence of the 1st Appellant when he stated thus:
The claimants (now respondents) are from Fajemilua/Ogunjobi sub-branch of Odo-Ile. Oke Ile remains indivisible.
I am from Oke-Ile. Edemo begat Aduloju i.e. my father. Both Odo-Ile and Oke-Ile do things in common. They meet regularly to deliberate on matters of several interest to distribute the proceeds realized from the sales of various plots of Edemo family farmland. I preside over such meetings. The proceeds are jointly shared all the branches of Edemo families including the claimants family.”
Further still the PW1 on page 315 of the record admitted under cross-examination that the immediate past Edemo or the 1st Appellants predecessor in office was in control of the land in dispute which was held in common by members of the family. He had this to say: –
Up till the time of Louis Babalola the Idemo was one and we held property in common.
During Louis Babalolas time he was in control but committees were chosen to do things.
Our grievance now is that the 1st defendant (now 1st appellant) misappropriated family money that is not our only grievance.
During the time of Louis Babalola, the whole Idemo was in charge of the land head (sic) by Babalola.
During the time of Louis Babalola, the land belongs to the whole Idemo family.
1st appellant succeeded late Edemo Louis Babalola. The latter was in control of the land in dispute in his lifetime. I therefore join learned counsel to ask when did the land in dispute translate to the exclusive property of the respondents family?
See Adenle v. Oyegbade (1967) NMCR 136 at 138. The above clearly shows that the land in dispute belongs to the larger Edemo family and was under the control and management of late Edemo Louis Babalola, the immediate past Edemo and predecessor of the 1st Appellant. The Respondents now claim exclusive ownership of same. The burden of proof that the disputed land has ceased to be Edemo family land moves to and is on the Respondents. See the Supreme Court case of Adenle v. Oyegbade (1967) NMCR 136 at 138 while agreeing on the burden of proof of ownership is ordinarily on a claimant for title said that;
Whilst this is a correct statement of the law in general, it must however, the modified where the dispute involved what was accepted by both sides as originally family land. Then when a person claims to be exclusively entitled to family property the onus is on him to prove it as was said in EZE v. SAMUEL IGILIEGBE & 5 ORS (1952) 14 WACA 61 by Coussey J, at p.63 when he said:-
As to the appellants contention in this Court that there is no community of Nze but that the quarters are each a community and therefor owns land to the exclusion of the people of Nze as a whole, I would say that the onus was upon the defendant to establish that his section or quarter had a title to the land to the exclusion of the Eze community as a whole as set up by the plaintiffs. The learned trial judge held that he had failed to establish such a title.”
My brother Boloukuromo Moses Ugo, J.C.A. in a lead judgment in Pastor Solomon Jide Alabi & 3 Ors. V. Pa Johnson Obasola Adakeja & 1 Or. Appeal No: CA/EK/40/2014 (Unreported) delivered on the 11th day of May, 2015 the facts of which are similar with this instant case on appeal had this to say:-
Adenle v. Oyegbade (supra) and Eze v. Igiliegbe (supra) has been religiously followed by the Supreme Court and this Court: See Athany v. Onyejekwe (1975) 1 ALL NLR 62 (SC) and Ogun v. Asemah (2002) 4 NWLR (pt. 756) 208 at 232.
On this score alone i.e. for the so much vaunted evidence of DW2, the burden of proof was on the appellants, regardless of the fact that they did not counter-claim for title, to prove the partition of their claim of exclusive ownership of what their star witness from Asa family admitted was hitherto Asa family land. That they have to do with cogent evidence, which was not forthcoming in this case. The consequence of which is that title ought to be decree, as it was done by the trial judge, on the respondents without further ado and that should be the end of the matter.
The Respondents have failed to prove how the land in dispute became theirs after the demise of the late Edemo Louis Babalola. Therefore from the totality of the evidence before the Court, the Respondents have not been able to prove that the land in dispute belongs exclusively to the Respondents branch of Edemo family in the absence of credible evidence of partition of same among the various branches of Edemo family.
I resolve this issue in favour of the Appellant.
Issue 2
Whether the 1st Appellant did not prove his counter-claim before the trial Court.” (ground 4)
The 1st Appellant did not prove his counter-claim before the trial Court. (Ground 4).
The 1st Appellant who is the incumbent Edemo and head of the Edemo family counter-claimed against the Respondent as herein before stated earlier on in the course of this judgment. By way of traditional history, the parties are on common ground on the founder of the land in dispute to be Edemo Ategbeomoro a.k.a Agbonnigbeokun.
On a counter – claim it is trite that it is a separate and distinct action and must be proved. See Obmiami Brick & Steve (Nig) v. A.C.B. Ltd. (1992) LPELR 2177 (SC), Arab Chem Ltd. V. Owoduenyi (2013) 10 NWLR (pt. 1361) 89 at 103.
The Respondent counsel had submitted that the Appellants have failed to prove their counter-claim and are not entitled to judgment and that the trial judge was justified in dismissing same. The Court is referred to paragraphs 23, 24 and 25 of the Appellant, statement of defence filed on the 12th December 2013. Also, that from the pleadings and evidence on record, the 1st Appellant has not established how he came about the land he is seeking a declaratory relief which is fatal.
See Ukaegbu v. Nwololo(2009) 3 NWLR (pt. 1127) 194 at 220 – 221. As a result, the Court is urged to dismiss the appeal.
The Appellants in proof of their counter-claim stated that the parties in this matter are on common ground on the founder of the land in dispute. The evidence of the witnesses on issue No.1 support the 1st Appellant acclaim that the land in dispute belonged to the entire Edemo family. As already stated before, all the branches of Edemo family share the proceeds of sale of parts of the family land. The 1st Appellant tendered in evidence the proposed residential layout in respect of the land in dispute. In addition, one of the customary tenants on the farm land gave evidence under cross-examination that the Respondents branch collected royalties from the tenants as representatives of the entire Edemo family. There is therefore no gain-saying that the Respondents through their witnesses already highlighted in the course of this judgment established the case of the 1st Appellant to the effect that the land in dispute belongs to Edemo family.
If the two pieces of the evidence of both parties are placed on either side of the imaginary scale of justice, whichever side that weighs heavier carries the day because it gets the judgment of the Court upon the well-known principle of adjudication in civil cases that proof is on a balance of probabilities or preponderance of evidence. See Mogaji v. Odofin (1978) 4 SC 91 at 96.
Looking at the above evidence as presented by the parties, it is my strong conviction that the 1st appellant presented a concrete and convincing evidence to support his case. The res in this matter which is the land in dispute remains family property until same is partitioned as rightly submitted by 1st Appellants counsel. Also is that as family property not yet partitioned, no individual member or branch of the family can lay exclusive claim over the land not even the Respondents. The 1st Appellant has therefore proved his counter-claim before the lower Court, and I so hold.
Consequently, I resolve this issue in favour of the Appellant.
Issue No. 3
Whether the award of N5 Million general damages for trespass coupled with an order of perpetual injunction against the Respondent was justified in law.
It is submitted by Respondents learned counsel that the award of damages of N5 Million against the Appellant by the trial judge was well founded in view of the fact that the Respondents have been in exclusive possession of the land in dispute and the consequent destruction of their crops by the Appellants. See F.H.A. v. Emelie (2013) 3 NWLR (pt. 1342) 478 at 496 – 497, Ajayi v. Jolaosho (2004) 2 NWLR (pt. 856) 89 at 98.
Taking into consideration the peculiar circumstances of this case, I do not seem to agree with the Respondents submission that the award of N5 Million as damages was justified in law. In the evaluation of evidence of both parties, I am not yet convinced by evidence adduced that the Respondents are really in exclusive possession of the land in dispute especially as they have failed and or/neglected to adduce any evidence of partition of Edemo family land. They have also failed to plead and prove name and particulars of intervening owners who admitted that their branch belonged to the family of Edemo family and who admitted under cross-examination that the proceeds of the farmland in dispute were always shared by all members of the Edemo family.
In view of the above, the lower Court ought not to have awarded damages for trespass to the disputed land nor was it proper to have awarded an order of perpetual injunction.
In addition, as stated before now in this judgment, the Respondents have failed to prove that the Edemo farmland is partitioned. Consequently it follows that the entire land in dispute remained Edemo family land. To that extent, the Appellants being members of Edemo family could not be guilty of trespass on the family land. It was therefore an error of judgment for the trial judge to have awarded damages and perpetual injunction against the Appellants most importantly and as rightly submitted by learned Appellants counsel, there is no evidence or record that the Appellants had acted contrary to the possessory rights of the Edemo family without the consent of the family. See Sowunmi & Ors. V. Ayinde & Anor (2010) LPELR 4973 (CA) at 29 – 30.
The Respondents made heavy weather that from the pleadings and available evidence on record, the Appellants have not been able to disclose or show the boundaries of the land in dispute and be ascertainable.
See Otunla v. Ogunowo (2004) 6 NWLR (pt. 878) 184 at 200. The land in dispute he contended cannot be ascertained not even through Exhibit C (survey plan). On the basis of the above, the Court is urged to dismiss the appeal because injunction cannot lie on a piece of land whose boundaries are not ascertained, reliance been placed been placed on Oladejo v. Adeyemi (2003) 3 NWLR (pt. 647) 25 at 40.
It is trite that in discharging the burden of proof of the identity of land in dispute in a claim for a declaration of title to land, the claimant must prove the identity of the land and boundaries of same. This burden can be discharged by oral description of the land or by a survey plan showing clearly the area to which the claim relates. See Okonkwo & Ors. V. Okonkwo (2010) LPELR 9357 (SC).
However, where the parties as members of the same family, know the identity of the land in dispute, the inadmissibility of the survey plan (Exhibit C) on the ground that it was made les pendis is a non-issue. It has no effect on the claim of the Appellant to the land in dispute. Also, both parties are in common on the identity of the land in dispute as same belongs jointly to all of them as members of Edemo family. The proof of the identity of the land in dispute is not in dispute between the parties and therefore, proof of same is not necessary. Against the above back ground, I do not agree with the submission of the Respondent that the Appellants have not been able to disclose or show the boundaries of the land in dispute whereas a piece of land on which a declaration is being sought ought to have the boundaries and be ascertained. As a result, the authority of Otunla v. Ogunowo (supra) is not applicable to this case.
From the above, I hereby resolve this issue in favour of the Appellant.
On the whole, having resolved all the issues in favour of the Appellant, the fate of this appeal is obvious. It is highly meritorious and it is hereby allowed.
Consequently, the judgment of the lower Court is set aside. The counter-claim of the 1st Appellant is hereby upheld. The cost to be awarded is fixed at N50,000.00 in favour of the Appellant.
Appeal Allowed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had read in draft the judgment just delivered by my learned brother, Paul Obi Elechi, JCA and I agree with his reasoning and conclusions. The appeal is highly meritorious and it is hereby allowed. The judgment of the lower Court is hereby set aside. I also allow the appeal and abide by the consequential orders therein.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
Appearances:
Adedayo Adewunmi,Esq. with him, Olawole Ajayi, Esq.
For Appellant(s)
T.M. Ogunmoroti, Esq. with him, Temitope Kolawole, Esq. For Respondent(s)
