MR. S.B. OLALEYE V. TRUSTEES OF ECWA (2010)

MR. S.B. OLALEYE V. TRUSTEES OF ECWA

(2010)LCN/4185(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of March, 2010

CA/IL/35/2009

RATIO

BURDEN OF PROOF: DUTY PLACED ON A PERSON WHO ASSERTS

The law is that he who asserts must proof. See UGBO – Vs-. ABUNME (1994)9 SCNJ 23, 39 this general rule that is enshrined in the legal maxim Ei Qui Affivmat Non El Qui Negatl Incumbit Probatio has provided for in section 135 to 137 of the Evidence Act. See also BROLLO -Vs-. NKWOCHA & ORS (2000) 15 W.R.N. 146 at 158- 159. PER SOTONYE DENTON-WEST, J.C.A

EVIDENTIAL BURDEN : WHETHER THE EVIDENTIAL BURDEN OF PROVING THE EXISTENCE OF A PARTICULAR FACT CAN SHIFT OR TILT AMONGST THE PARTIES

WHETHER WHERE AN AREA OF LAND IS IN ISSUE, ITS BOUNDARIES MUST BE STRICTLY PROVED AND ASCERTAINED

WHAT IS THE STANDARD OF PROOF REQUIRED WHEN AN ALLEGATION IS MADE IN A CIVIL CASE

LACHES AND ACQUIESCENCE: WHEN DOES ACQUIESCENCE OCCUR; CONSEQUENCE OF ACQUIESCENCE

TRESPASS: ESSENCE OF POSSESSION IN AN ACTION FOR TRESPASS

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

IGNATIUS IGWEAGUBE Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

Between

MR. S.B. OLALEYE Appellant(s)

AND

TRUSTEES OF ECWA Respondent(s)

SOTONYE DENTON-WEST, J.C.A, (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Kwara State sitting in Omu-Aran in suit No. KWS/OM/11/2007, delivered by Hon. Justice A.O. Bamigbola, on 30/1/09.
The respondent instituted an action at the lower court, claiming against the appellant the following reliefs as contained in paragraph 15 a, b, c & d of the statement of claim thus:
a. the ejection of the defendant from the ECWA land.
b. general damages of One Million Naira for trespass committed and still being committed by the defendant.
c. perpetual injunction restraining the defendant from further trespass on the claimant’s land.
d. such further or other order(s) as the Honourable Court may deem fit to make in the circumstances.
The appellant filed his defence and counter claimed, asking for the following declarations and order.
i. A declaration that the defendant is the rightful owner of the piece of land next to the claimant’s new church at Isapa, the same having been granted to him by Ile Aofin section of Iliya compound being the customary owners thereof.
ii. A declaration that the customary right of occupancy number 122 issued to the claimant by the Ekiti Local Government of Kwara State in respect of the land is no longer subsisting or effective to vest ownership of the land in the claimant herein. The same having been nullified by the said Ekiti local Government.
iii. An order of perpetual injunction, restraining the claimant, either by herself or through her Isapa local church, agents or privy, successor in title or any person(s) whosoever from trespassing on the land of the defendant and/or from disturbing the peaceful enjoyment of the land by the defendant.
Judgment was delivered in favour of the respondent allowing their claims and dismissed the counter claim of the appellant.
Dissatisfied with the aid judgment, the appellant therefore appealed to this court by filling a notice of appeal with nine grounds of appeal and prayed that this court allow his appeal and substitute the order of the lower court with a dismissal of the respondent’s claims at the lower court and grant the counter-claim of the appellant. The appellant formulated the following two issues for determination:-
1. Whether having reward to the evidence adduced in this case, the learned trial judge was not wrong n giving judgment to the respondent on his claim. Grounds 1, 2, 3, 4, 5, 6, 7 and 8.
2. Whether the learned trial judge was not wrong in dismissing the counter-claim of the appellant in the circumstances of this case.
The respondent on the other hand formulated the following six issues for determination:
1. Whether there ire sufficient pleadings to support evidence given in respect of measurement of the given land.
2. Whether the e. tent of the land granted by Iliya compound to Oba Ataba Daramola was mown?
3. Whether the trial court is correct to hold that the Appellant have condoned and acquiesces in the possession of the land they are claiming when the Appellant kept quiet when they constructed their new church.
4. Whether or no, the trial court is correct to have held that Exhibit E and E1 do not constitute valid revocation of the customary certificate of occupancy granted to the respondent in 1994.
5. Whether the trial court was correct to have held that the intervention by the Oba and the Local Government is not helpful to the court.
6. Whether the finding of-the trial court is supported by weight of evidence before the court.
At the hearing, on 18th day of January 2010, learned counsel to the appellant E.O OSUNWUYI (Miss), referred to her appellant’s brief of argument dated 01/06/09 and filed 03/06/09 and also her appellant’s reply brief dated 19/6/09 and filed 22/6/09. She adopted same and relied on the two briefs of argument and urged this court to allow the appeal.
Chief P.A.O. Olorunnisola SAN, referred to his respondent brief of argument dated 15/6/09 and filed same date. He adopted the said brief and urged that the appeal be dismissed.
In determining this appeal, I think it will suffice if the six issues raised by the respondent are adopted since the two issues raised by the appellant are included therein.
The argument of issue one of the appellant cover eight grounds of appeal, and the argument will be assessed before assessing that of the respondent in piece meal. It should be noted that the issues of the respondent will be used to determine this appeal because it is more succinct and explicit and in actual fact cover the issues and arguments of the appellant.
The Appellant’s counsel, E. O. OSUNWUYI (MISS), in arguing the issues raised in the Appellant’s brief, addressed the 1st issue under two sub-heads for clarity purpose. This sub- heads are-
i.Vitiated root of title, and
ii. Alleged acts of ownership/ exclusive possession.
Appellant’s counsel started her argument by reiterating the well settled principle of law that where a defendant claims to be the owner of a land in dispute, title is automatically put in issue, and for the plaintiff to succeed, he must establish a better title to the land in dispute than that of the defendant. The Appellant’s counsel cited the cases of ADEBAYO -Vs- IGHODALO (1996) 5 SCJN 23 AT 45; and AMAKOR -Vs-. OBIEFIJNA (1974) 3SC 67 AT 78 to buttress that position.
In arguing the vitiated root of title, the Appellant’s counsel stated the legal principle of Law that states that tendering a document of title does not automatically mean that the land therein purportedly granted by the document becomes the property of the grantee. Thus, the pleading and admission of the alleged root of title executed in 1961, in respect of 13, 312 square metres of land does not make the land the property of the Respondents, rather, the court has a duty to enquire whether the document is genuine and valid. The case of KYARI -Vs-. ALKALI (2001) FWLR (PT 60) 1481 AT 1506 AND 1507 was used to -adumbrate the Appellant’s point.
Appellant’s counsel further stated that alleged primary root of title of the Respondent to the 13, 312 Square metres of land (EXHIBIT ‘A’) is a worthless, fake and discredited document, he surmised so on the fact that PW2 stated that EXHIBIT ‘A’ was printed and given to the Respondent by Ekiti local Government in 1961, and yet also admitted during cross- examination, that Ekiti local Government was created by the regime of President Shehu Shagari which is factually known to have commenced in 1979. PW2 further admitted that the entity known as Kwara State was not also in existence by 1961. He further stated that the use of the N : K symbols in exhibit ‘ A ‘ of which the court must take judicial notice of to mean Naira and Kobo, only became the official currency in Nigeria in 1973. Appellant’s counsel surmised by citing LABABEDI -Vs-. LAGOS – METAL INDUSTRIES (NIG) LTD & ORS (1973) 1 SC 1 AT 14 AND OKOKO -Vs-. DAKOLA (2006) ALL FWLR (PT.336) 201 AT 229, where the Supreme Court reiterated the point that to forge a document has the effect of nullifying such document completely. Appellant’s counsel further submits that the EXHIBIT ‘A’ is further vitiated by non-compliance with registration rule, it been a registrable instrument, thus making EXHIBIT ‘A’ inadmissible in proof of title and non-compliance with the provision of the illiterates protection law. He cited the cases of ITAUMA -Vs-. AKPE-IME (2000) FWLR (PT. 16) 2809 AT 2824-2825, AND IGBUM -Vs-. NYANRINYA (2001) FWLR (PT 67) 95 AT 969, to substantiate his point.
Appellant’s counsel posited that EXHIBITS B AND C, tendered by the Respondents as the Customary Right of Occupancy and the Site Plan of the land in dispute respectively, which were issued sequel to EXHIBIT ‘A’ are by that reason thereof worthless in law, because, it is a case of EX NIHILO NIHIL FIT-, from nothing , something cannot arise in law. Since EXHIBIT A is tainted with illegality, all things emanating there from amounts to a nullity. Counsel referred the court to the case of OKOYA -Vs-. SANTILI (1994) 4 SCJN 333 AT 364, to drive his point home.
The Appellant’s counsel noted that the Local Government that issued EXHIBIT ‘B’ has nullified same on account of the fact that the local Government was ab initio misled by the Respondent to issue it pursuant to EXHIBIT ‘A’. On the record of the trial court, pages 156, the last four lines, to line 4 of page 157 of the record, PW2 admitted under cross- examination that the present Onisapa of Isapa – and the Ekiti local Government had intervened on the land dispute. Exhibit E, the letter conveyingfte verdict of the local Government on matter states that the local Government found that the rightful owners of the land covered by EXHIBIT ‘B’ did not sign off the land, and consequently declared the Right of Occupancy ( EXHIBIT B) null and void.
The Appellant’s counsel also posited that the learned trial judge had no business to have held that EXHIBIT ‘E’ (E1) is not a letter of revocation of the Right of Occupancy tendered in this case as EXHIBIT ‘B’. Counsel to the Appellant’s then stated that by implication, Exhibit ‘C’ has also been nullified, as it does not have a separate existence from EXHIBIT ‘B’.
Appellant’s Counsel then concluded on the issue of vitiated title by submitting that the learned trial judge erred in law by having recourse to the issue of the possession or acts of ownership in the circumstances of this case. That, where the main root of title pleaded has failed, any root of title depended on the root of title is bound to fail. He referred the Court to the cases of UKA -Vs-. IROLO (2002) FWLR (PT. 127) 1162 at 1198 and UKAGBUE -Vs-. NWOLOLO (2009) 1-2 S.C (PT 1) 21 at 42; (2009) ALL FWLR (PT.466) 1852 at 1872-1873. FASORO & Anor -Vs-. BEYIOKU & ORS (1988) 1 NSCC 705 at 710- 713, to drive home his point that the case of the respondent ought to have been peremptorily dismissed.
On arguing the second leg of the 1st issue, on the alleged acts of ownership/exclusive possession, Appellant’s Counsel submitted that the Respondent did not prove, on a preponderance of Evidence that they had a secondary root of title. This the Appellant’s Counsel proved by stating that the unchallenged and uncontrovened Evidence of the Appellant that held this portion of land from the family that owned it, about ten years before the date of making his written statement on oath in 2007, in conjunction with the testimony of DW6, where DW6 stated that he has been on part of the land claimed by the Respondent, since 2003. This claim of possession belies the claim of the respondent that he has been in undisturbed possession of the entire area of land since 1961. Although the Respondent claimed to have been persuaded to allow DW6 to build on the land, DW6 denied this and maintained that no one disturbed him whilst building on the land after obtaining the land from the customary owners Aofin section of Iliya -Compound. PW1 even admitted, in his evidence in chief that he did not know who allowed DW6 to build on the land. While DW6 made it known under cross examination that the area where he built his house was bushy in 2003, this assertion by DW6 belies the claim of PW3 that they were always cutting grass and bush in the area as will be seen in pages 166, lines 17 and 18 of the record.
Appellant’s counsel further alleged that the learned trial judge proceeded on a number of faulty premises on the issue of alleged possession or exercise of ownership by the respondent, such as, that there is no where it is pleaded by the respondent in this case that the land was measured in 1961, that a cursory look at the process would reveal that the respondent never pleaded the above. However, the learned trial judge held at page 178 line 1 and lines 25 to 26 of the record that the claimant pleaded and led evidence to show that the land was measured in 1961. The Appellant’s counsel stated that evidence must perforce go to no issue, when such evidence is not covered by the pleadings. He referred the court to the case of NWAWUBA VS. ENEMUO (1988) 1 SC 264 at 289 to buttress his point. He also concluded that the same fate must befall the evidence of PW2, when he stated under cross- examination that the respondent installed beacons on the land in 1961.
Appellant’s counsel posited that the evidence of PW2 AND PW3, on whose evidence the learned trial judge relied upon in reaching the conclusion that the respondent laid evidence of the circumstances and result of the measurement, should have been discountenanced, as the evidence of these witnesses, have by the record, betrayed them as untruthful witnesses.
The Appellant’s counsel further stated that there is no basis for the holding of the trial judge in his judgment that the extent of the land used by late Oba Elekan Daramola was unknown and that the dimension of the land granted to the respondent as at 1961 was uncertain when from evidence obtainable from the records of the trial, in paragraphs 7, 8 and 9 of the statement of defence contained in page 40 of the record, page 155 lines 17 and 18, page 89, page 157 (last line) through page 158 (first line ) and page 170 lines 14-17 of the records of the court, it can be discerned that both parties and indeed, the court, were ad idem that the portion of land given to the late Oba is where the old church and mission house of the respondent stands.
Furthermore, Appellant counsel alleged that the evidence of PW2, from the record of the court, as per whether Exhibit ‘A’ was executed in his presence in 1961, whether he obtained exhibit ‘A’ from Ekiti Local Government and PW2’s inability to ascertain which exhibit between Exhibit C and A was made, as can be seen in pages 157,lines 11 and 12, page 157 lines 9- 16, page 158 (2nd to the last line) page 157 lines 28 and 29, and page 157 lines 20 and 21 of the record respectively, the evidence of PW2 should not have been believed on the premise that he is not a witness of truth. He cited the case of AYANWALE V. ATANDA (1988) 1 SCNJ, PAGE 1 AT 13, to buttress his point that when the credibility of a witness is destroyed, the evidence of the witness loses cogency.
Furthermore, the learned trial judge, as stated by the Appellants counsel, held that the Aofin family and the Appellant could not be heard to-claim that the land granted to the respondent, was limited to the latter’s old church and mission house by virtue of the fact that they had allowed the respondent to put up a new church building on a piece of land beyond the original grant. The Appellant counsel states that the hypothesis cannot hold water, because, by the uncontroverted evidence of DW1 contained at page 50 (2nd reference) of the record, where DW1 stated,
“Few years ago, after I had become the head of Ile Aofin I noticed the claimant erecting another building on the parcel of land next to the one given to her. I challenged her authority, but appeals came from different quarters which I considered more especially, because of my relationship with members of the claimant’s church.”
None of the respondent’s witnesses disproved the above, and on the authority of OBEMBE Vs WEMABOD (1975) 5 SC PG.115 AT 140, OGUMA Vs. IBWA (1988) 3 SCNJ (PT.1) 13 AT 33-34 AND MODUPE VS. THE STATE (1988) 9 SCNJ PG 1 AT 4, all to the effect that an unchallenged and uncontradicted evidence must be accepted and acted upon.
Appellants counsel stated that the case of the respondent at the trial is that she is entitled to the grant of 13, 312 square metres of land, claimed by the Appellant, by reason of the acquiescence of the land by the erection of the new church building, but rather her case is that she obtained the grant of 13, 312 square metres of land, which was evidenced in a title document and admitted in evidence as Exhibit A in this case. That this is the case the trial judge should have allowed the respondent to swim or sink with.
The Appellants counsel concluded that “based-on the trial court findings, the dimension of land granted to the respondent as at 1961 is uncertain, and by the oral and documentary evidence adduced in this case, that there is no evidence that the respondent was in lawful or exclusive possession of land covering 13, 312 square metres, therefore, the contra-holding of the court below is misplaced, because by the authority of KODILINYE Vs ODU (1935) 2 WACA 336 and UKAEGBU Vs NWOLOLO (SUPRA) AT 1881, for a claim of this nature, a plaintiff must succeed on the strength of his own case and not on the weakness of the case of the adversary. ;
Appellant’s counsel urged this court to answer the issue in the affirmative. The learned silk, Chief P.A.O OLORUNNISGLA on his own part and in line with his issue on whether there are sufficient pleadings to support evidence in respect of measurement of the given land.
He argued that it is trite law that only facts need to be pleaded and not evidence by which they will be proved, he cited the Kwara State High Court Civil Procedure Rules 2005 Order 27 Rule 2(1), THANNI -Vs-. SAIBU (1977) 2 SC 89 at 114 – 115 and OKEKE- Vs-. ORU (1999) 4 SCNJ 192 at 210. He further claimed that
the respondent’s claim was 13,312 square metres as contained in Exhibits A, B and C and that the appellant supports the claim except to the extent that the land granted was not up to 13,312 square metres. The learned silk further contended that the dimension could not be arrived at without measurement and that evidence was ‘ given that beacons were erected on the land as per the site plan. He thereafter submitted that, there is sufficient pleadings on which the evidence of measurement can be anchored.
Without much ado, paragraph 3 of the statement of claim stated thus:
“in 1961 ECWA Church Isapa was given a piece of land of 13,132 square metres by Iliya Compound, Isapa.”
The appellant on their own part in paragraph 4 of their statement of defence stated that:
“the defendant admits paragraphs 1, 3 and 4 of the statement of claim only to the extent that there was a grant of apiece of land to the claimant without admitting that the land so granted measured up to 13,312 square metres and that there was a written agreement to that effect.”
The appellant in his appellant reply brief argued that it was never at stake that land was given to the respondent or not but what was at stake was whether the land was measured.
Interestingly, the respondent via their paragraph 3 quoted above stated that land measuring 13,312 square metres was given to them in 1961 and this was not disputed in totality by the appellant but only to the extent that the land was not up to 13,312 square metres.

However, while the legal burden of establishing a case without relying on the weakness of the defence is always on the plaintiff, the evidential burden of proving the existence of a particular fact can shift or tilt amongst the parties according to how one scale of evidence or the other preponderates, or according to the assertions of the parties in their pleadings. See the case of OLANLOYE -Vs-. FATUNBI (1999) 8 NWLR (PT 614) 203 at 226. The evidential burden shifted to the appellant who disputed the measurement. It became the duty of the appellant counsel to tell the lower court, the measurement of the land that was given to the respondent. At this stage the onus moves on to the party that admitted a fact in part “and disputed part of it. Assuming the whole of paragraph 3 of the statement of claim was disputed; the onus would have still been on the respondent to prove.
Short of any embellishment, it is the appellant that stated that yes, the respondent was given land but not up to a particular measurement. The question is, what was the measurement size that was given to the respondent? The singular person that can answer the question is the appellant and not the respondent. On the respondent’s issue one, which is part of issue one of the appellant, I hold that there is sufficient pleadings to support evidence given in respect of measurement in the given land, thus respondent issue one is resolved against the appellant and in favour of the respondent.
ISSUE TWO
On whether the extent of the land granted by Illiya Compound to Oba Ataba Daramola was known, is well treated in issue one of the appellant counsel’s brief. Counsel to the respondent, Chief Olorunnisola SAN, argued that paragraph 3 of the statement of claim as amended avers that the land given by Illiya Compound to the respondents is 13312 square metres. That this does not refer to the land granted to Oba Ataba Daramola. He further contended that it was the appellant that raised the of who gave the land and what measurement. That even though the appellant denied the respondent’s alleged grant, he never stated the measurement of what was granted. He further argued that the appellant vide his paragraph 12 of the statement of defence admitted that the land was occupied by Oba Daramola Ataba. He further contended that when the land was given to the respondent, it was oral and that dimension was stated and that it was the land that was described in Exhibit A, B and C. He went further to say that the appellant stated consistently that the land given to the respondent was the land occupied by the late Oba Daramola Ataba but that the appellant failed to state the dimension of land which was given to the respondent and that this court is left to guess.
The learned silk argued further, that DW5 under cross examination stated that he was not present when the land was granted to Oba Daramola Ataba nor was appellant’s other witnesses at the lower court.
Chief Olorunisola SAN, finally submitted on this issue that the lower court was right when it held that the area granted to Oba Daramola Ataba was not known. And that the only thing that was certain and is still certain is the area claimed by the respondent as contained n Exhibit A, B and C and he finally urged this court to dismiss the appeal. E.O. Osunwuyi (Miss), learned counsel fto the appellant relied that the submission in paragraph 4.01 that paragraph 3 of the statement of claim does not refer to the land granted to Oba Ataba Daramola and that they pleaded in their paragraphs 7, 8 and 9 of the statement of defence that the land anted to the Oba was limited to the portion where the old church and mission house of the respondent are built and thus was subsequently admitted in paragraph 4 of the statement of defence to counter claim. He concluded this argument by stating that the area granted to Oba Daramola Ataba was known and is a consensus on this by the parties.
I have painstakingly taken my time to look into the amended statement of claim, statement of defence and counter claim and statement of defence to counter claim with me judgment on the issue of whether the extent of the land given to the Oba Ataba Daramola was known. For ease of reference paragraphs 8, 9, 10 and 11 of the appellant statement of defence will be reproduced-
8. Further to paragraph 7 above, when the said Elekan of Isapa, HRH Oba Daramola Ataba left the land, the Claimant’s Isapa church’s authority requested to be given the land to build their church from him and in turn directed them to the land owners, Ile Aofin. The Elekan of Isapa, HRH Oba Daramola Ataba, took them to Ile-Aofin section of Iliya Compound where they appealed for the grant of the land and they were obliged.
9. The defendant’s states further that Ile Aofm through its head and principal members then gave the land to the church and it is there that the Claimant’s old Church and mission house are now situated. There was no written agreement in respect of the grant as it was done orally.
10. Further to paragraphs 7, 8, 9 above, the defendant avers that it was the Head of He Aofin section, Chief Olu Ogunbiyi and three principal members in the persons of late paid Adeyemi, Daniel Bolaji and Ogun Elerare who granted the transfer of the title to the piece of land.
11. The defendant avers that Baba Oye Aremu Dada who purportedly granted the title to the large expanse of land being claimed by the claimant was not a member of the He Aofin section. He was from He Ogidigbo section and was never authorized to give out land belonging to another section of Iliya compound.
While paragraph 3 of the amended statement of claim of the respondent state otherwise
From the above it is difficult to know which part of the land the appellant is referring to. It can be deduced from appellant’s statement of defence that no specific dimension or measurement was stated to ascertain which or what part of the land was allotted to the appellant, just like what I said in- issue one above, the appellant would have made the dimension or measurement he contends belongs to the respondent available contrary to what the respondent claimed.

In law, where an area of land is in issue, its boundaries must be strictly proved and ascertained; and where possible with a survey plan. See ATANDA V. AJANI (1996) 3 NWLR (PT 111) 511, AND ONU V. AGU (1996) 5 NWLR (PT451) 652. The appellant has alleged that the land granted :to the respondents is not ascertainable on one hand and on the other hand they have stated that the land granted is limited to the area of the old church and missionary house building, yet, there has been no effort made by them to prove the area/ the boundary.
However it seems from the submissions of the appellant that they are contending that exhibit A which is the root of title to the claim of ownership of the property in contention between the respondent and the appellant is smeared with fraud and illegality and could therefore not be relied upon and therefore the subsequent exhibits B and C which refers to the title of the respondent were both dated 3rd day of May 1994 even though the said property was allegedly granted on 25th March, 1961 via exhibit A which respondent vehemently contends is not true as earlier stated in their submissions to this effect in a nutshell as follows:
(1) The document is not properly signed and attested to as required by law.
(2) The sign of N: K was used in the document prepared in 1961 whereas Nigeria was not using Naira or Kobo in 1961.
(3) Baba Oye-Aremu Dada who is alleged to give the land to the respondents on behalf of the owner of the land is not known to the owner of the land. He Aofin section of the Iliya compound who are the owner of the land in dispute instead of He Ogidigbo section of which Baba Oye-Aremu Dada is a member and he had nothing to do with the land and so appellant contended this issue.
‘When the issue of which part of a large parcel of land is in dispute, a party is expected to show the, dimension or measurement, failure to do this, court will not speculate so as not to arrive at a very wrong decision.
For the purpose of clarity. The two parties agreed that:
i. One Oba Ataba Daramola was on the land.
ii. The Oba Ataba Daramola eventually left the land when termites will not give him peace.
iii. The Oba abandoned the land.
iv. The land was allotted to the respondent who in turn built their church and mission on it.
The respondent claimed that the land was 13,312 square metres as shown in exhibit
A while the appellant rebutted it stating that exhibit A is a forged document arid that no reliance should be placed on it.
Therefore the failure of the trial court on page 184 of the record of proceeding in his judgment to consider the evidence relating to the forgery in respect of exhibit A and the submissions of counsel to the appellant that the trial court having failed to reject exhibit A as being fraudulent and furthermore that since it offends against the illiterates protection law, reliance should not have placed on it and should not have been considered by the lower court as authentic especially as there are lots of other irregularities leveled against the said document.
Unfortunately, the trial court did not bother to allude to this aspect of the fraud in respect of exhibit A and instead went on to say “The learned counsel for the defendant has urged the court to reject the document on ground that it offends the illiterates protection law and that it was a registrable instrument that was not registered. Apart from the fact that these complaints never formed part of the defendant’s case at the trial, after I have found that the claimant in spite of the document exhibit A is entitled to exclusive possession of the land granted to the church in Ishapa, I will not make any further comment on these ground of objection “.
His lack of comments or glossing over of these grounds of objection which is the crux of the defence of the appellant was glossed over, by the trial court.

Indeed when there is an allegation of fraud raised during or when a trial is being conducted, once there is an allegation of fraud raised, it is the duty of the trial court to allow the issue of the criminal aspect of a case to be effectively dealt with by staying the civil action and proceed first with the criminal. In Sule vs The State (2009) 17 NWLR part 1169 page 33 at 58. The duty and role of a trial court in the evaluation of evidence is to look into all the ramifications of the evidence or testimony of the witnesses, and not to gloss over the issues raised in respect of said document or the evidence of the witnesses to a civil case is directly in issue the party must prove it beyond reasonable doubt if need be and a Court should take such an allegation seriously and not sweep it under the carpet as if it did not matter, as happened in the lower Court, when the Court said inter-alia on page 184 of the record. “The learned counsel for the defendant has urged the court to reject the document on ground that it offends the illiterates protection law and that it was a registrable instrument that was not registered. Apart from the fact that these complaints never formed part of the defendant’s case at the trial, after I have found that the claimant in spite of the document exhibit A is entitled to exclusive possession of the land granted to the church in Ishana. I will not make any further comment on these ground of objection”.

The standard of proof required in allegation of criteria civil cases is beyond reasonable doubt, and a trial court should observe it. See Sokefun vs Akinyemi & Ors 9(1980) 5 S.C.1, Okuarume vs Obabokor (1996) N.M.L.R. 47, A.S.E.S.A. VS EKWENEM (2009) 401 NWLR PT 1158.
Similarly the Trial Court ought to have had a second look at the public document Exhibit E & E1 which is a certified true copy of Exhibit E. A Court which has before it a public document must take account of the document and – admit it in evidence and place reliance on it where necessary, and If it is a relevant to the issue for determination. But this document even though relevant was refused consideration by the Lower Court because it was not addressed to any of the parties. However it was forgotten that the maker of Exhibit E that is Ekiti Local Government issued Exhibit B the customary Right of Occupancy upon which the respondent now based its ownership of the land in dispute.
See Ogbuayina & Ors vs Okudo & ors (1979) 6-9 S.C 32. Section 113 & 115 of the Evidence Act.
Finally in order to make findings of facts based on the credibility of the witnesses or witness who testified and to decide the merits of the case based on the Exhibits, the court ought to consider these Exhibits and evidence thereon. See the case of the State vs Aibangbee & Anor (1983) 3 NWLR (Pt.84) 548: (1988) 7 SCJN 128; (1988) 2 NSCC192 and Grace Akpabio & Ors vs The State (1994) 7-8 SCJN (pt.111) 429; (1994) 7 NWLR (pt.359) 635.
Therefore, since no reliance could be placed on exhibit A in view of the serious attack on the said exhibit A which in fact snowballed into giving birth to exhibit B and C, it further means that exhibit B which is a customary right of occupancy dated 3rd day of May 1994 could also not be relied upon as the Ekiti Local Government that prepared and granted the respondent the said land of 13312.00 square metres as per attached site plan, which is exhibit C also dated 3rd May 1994 was eventually not in attunement with their grant as contained in exhibit B the customary right of occupancy, and in their evidence before the trial court.
Consequently, the Ekiti Local Government by virtue of exhibit E dated 24th October 2007 in a letter captioned RE;- Call for intervention in a land dispute between Iliva compound and ECWA church. Isapa, though not addressed to the parties directly but to the representatives of Iliya compound the owners of the land in dispute between the appellant and the respondent, Ekiti Local Govt. declared that the R of O tendered by the ECWA church that is the respondent, is null and void because the rightful owner of the land in dispute did not sign the R of O (sic) Customary Right of Occupancy. Finally the local government that initially issued exhibit B now contends that the exhibit B is null and void because it seems that R of O tendered by ECWA church was discovered not to have been signed by the rightful owner of the land.
It is quite obvious that the whole purport of this exhibit E shows that there is no where apart from the discredited exhibit A upon which exhibit B and C anchored its dimension of 13312.00 square metres of land ever envisaged by the adverse party. In fact the Ekiti Local Government directed that the land in dispute be divided as His Royal Highness Onisapa of Isapa has divided it with the Power Holding Company of Nigeria (PHCN) electric poles as demarcation for the two parties. Because of the essence of this Exhibit E. as it affects Exhibits A & B. it may be necessary for me to reproduce verbatim these three exhibits and I so do.
EXH. ‘A’ 15/4/08
STATUTORY RIGHT OF LAND OCCUPANCY AND EVIDENCE OF LAND OWNERHSIP ON PLOT THE LAND AND THE TRANSFER OF THE OWNERSHIP.
This is to certify the candid fact the:-
We, I, The undersigned, the accredited family of Iliya Compound, Isapa hereby on behalf of ourselves next of kin and successor thereon unanimously, voluntarily and legal relinquished the plot of the land which situated at opposite CMS Church, Isapa
TO: E.C.W.A. Church, Isapa.
The Plot of the Land which is: 133/2.00 Square metres.
It is hereby known to general public that:-
The Plot of the land have been relinquished without reservation whatsoever
TO: E.C.W.A. Church, Isapa.
We/I, therefore unconscientiously affixed/my mark thereon this.. ……day of …… 19…….. that any consented on calculated attempt to reposes the said plot of the land thereon should be declared NULL and VOID in any competent court of Justice in Nigeria.
Consequence of the gratification fee of N: K She/He paid to our family, we/I gave her/him the absolute and legitimate power on the said plot of the land.
We/I, therefore conscientiously declared, agreed and confirm the revocation of our possession and any existing power of attorney thereon and subsequently transferred the plot of the land thereon to E.C.W.A. Church, Isapa from the date of this agreement 25th day of March, 1964. The bearer had paid customary N…….K to our family/me in appreciation of the requital of the said plot of the land.
This is read and interpreted by me: 25-3-1961 in Yoruba Language. They found that the contents were their own dictations. They signed it/affixed their thumb impressions therein.

MOSES FOLORUNSHO                      BABA OYE AREMU DADA
PRESENT OWNER’S SIGNATURE                   FORMER OWNER’S SIGNATURE
DATE: 25/3/1961                         DATE: 25/3/1961

PASTOR ZACHUS COALE                      ADEREMI
WITNESS TO PRESENT SIGNATURE                WITNESS TO FORMER SIGNATURE
DATE 25th March, 1961                      DATE: 25/3/1961

LUD-L.G. (CERT.) 1
LAND USE DECREE (No. 6 of 1978)
EKITI LOCAL GOVERNMENT
CUTOMARY RIGHT OF OCCUPANCY NO. 122
This is to certify E.C.W.A. Church of ISAPA is entitled to a Customary Right of Occupancy in and over the plot of land which situated at OPPOSITE C.M.S. CHURCH, ISAPA and having an area of 13312.00 square metres approximately as per attached site plan for a term of 99 years.
Commencing from the 2nd day of May, 1994 according to the true intent and meaning of the land use decree, 1978 and subject to the provisions thereof and to the following terms and conditions:-
(i) Commencing Rent;- 2nd May, 1995 (N50,00k)
(ii) Purpose: – place of worship
(iii) Restrictions and conditions as to user – NNO ALIENATION TO ANY OTHER PERSON WITHOUT PRIOR APPROVAL
BY THE EKITI LOCAL GOVERNMENT.
Signed, sealed and delivered by Chief Town Planning Officer
Date: 3rd May, 1994.

NOT CLEAR

The Ekiti Local Government accordingly urged the parties as a matter of urgency to submit all the land documents in their possession and re-apply for new ones in line with the new agreement. It is unfortunate that the transaction of the allocation
of the land to the respondent was not immediately measured at the time that Oba Eleyan Daramola vacated the land he used as his palace because of termite invasion and which land was granted without doubt to the respondent to build her church and mission in 1961. There was no doubt that the respondent without much ado is entitled to all that land that comprised the palace of Ataba Oba, Eleyan Daramola and in my view the respondent is entitled to the allocation as agreed by the parties but not necessary the quantum of 13312.00 square metres to the total exclusion of the family. I am also impressed that the respondents at the time allowed the appellant to proceeded to build, they allowed him to build on the land because of the intervention of one of their member, as given in evidence.
In view of exhibit E and the fraudulent nature of A, and finally the consequent declaration by the grantor of-exhibit B as being invalid, null and void, I am obliged to hold that this issue one of appellant which is in material particulars with the issue 1-3 of the respondent is hereby resolved in favour of the appellant against the respondent.
ISSUE THREE
Issue three of the respondent is, whether the trial court was correct to hold that the appellant has condoned and acquiesced in the possession of the land they are claiming, when the appellant kept quiet when they constructed their new Church. Learned counsel to the appellant E.O Osunwuyi (Miss), treated this issue in her issue one which was formerly argued.
The counsel to the appellant replied that, there was no credible evidence in this case to show that beacons were erected on the land in 1961 and that, that fact was not pleaded and that if beacons were erected in 1961 there would have been no reason for beacons to be erected in 1994.
He further argued that the limitation law of Kwara State referred to by the respondent cannot be called in from the blues and that it ought to have been pleaded. He finally concluded that the crucial issue is whether or not the land of the respondent extends to the land being developed by the appellant and concluded that the extent of land given to the appellant by the customary owners of the land is not directly in issue in this case.
Tacitly, it was the appellant that raised this issued of laches and acquiescence vide his ground for the notice of appeal but he was quick to state that it ought to have been pleaded by the respondent by virtue of order 27 rule 4, of the Kwara State High Court (Civil Procedure) rules 2005.
I agree into to with the appellant counsel that, the limitation law of Kwara State High Court Civil procedure Rules 2005 now being referred to in the brief is belated. The appellant could not be bound by the doctrine of laches and acquiescence because from the time he matured enough to contend with the respondent, he did so. He was vigilant and did not sleep on his right to the family land.

Acquiescence occurs when a person abstains from interfering when his legal rights are violated. He will therefore, given a normal situation, be forbidden, from asserting that legal right. The law aids those who are vigilant not those who sleep upon their right. Vigilantibus et non dormientibus jura subvenniunt.
See the cases of Ikuomola vs. Oniwaya (1990) 4 NWLR (pt. 146) 617, Yusuf vs. Dada (1990) 4 NWLR (pt. 146) 657, Okpala vs. Ibeme (1989) 2. NWLR (pt. 102) 208. Akanni & Ors. Vs. Makanju & Ors.(1978) 11 &12 S.C. 13.
The appellant and his witnesses who are mainly the land owning family at no time slept on their right. See the record of proceeding of pages 46-68 wherein the appellant and all his witnesses including Chief Thomas Ogundele, Prince Samuel Daramola, Prince Afolabi Dada, and Prince Monday Ayeni, gave evidence, on oath in the pre-trial.

There are many ways of proving ownership to land! It is always a question of fact what constitute sufficient act of possession. Mere possession is sufficient to found an action for trespass against a wrongdoer. For instance, a erection of survey pillars on land is sufficient act of possession even if that is the only evidence available. See AYINDE VS SALAWU (1989) 3 NWLR (PT 109) 297; LADIPO VS AJANI (1997) 8 NWLR (PT517) 356 AT P. 367.
A person who cannot prove to have been in possession of a defined and ascertained area of land cannot claim to have had dominion over any specific land to the exclusion of any other person for a prior right thereto. He cannot therefore claim earlier possession of such land than any other person who is able to prove of a known area. See EKPECHI VS. AWHONDA (1998) 3 NWLR (PT 543) 618 AT P. 625″.
Apart from the argument on laches and acquiescence which was discountenanced by this court on the ground that it was not pleaded at the lower court, this issue is resolved against the respondent in favour of the appellant.
ISSUE FOUR
Issue 4 of the respondent brief is, did Exhibit E and E1 revoke the customary certificate of occupancy, Exhibit C? This point was well argued by the parties in their issue one, nevertheless I shall recapitulate their arguments on this Exhibit in relation to issue 4.
The learned silk argued that, Exhibit E is not a letter of revocation as
i. It is not addressed to the respondent
ii. The author who purported to have written for and on behalf of the chairman has no office or rank in the system for and on behalf of the chairman has no office or rank in the system.
iii. Ekiti Local Government Chairman on behalf of whom the author of Exhibit E wrote(sic), has no power to revoke the certificate of occupancy, moreso, for the purpose of granting it or part of it to another person.
iv. Attempt to resolve a dispute does not give power to give judgment and to revoke, where the law does not give such power.
v. The purported revocation contravenes section 43 of 1999 constitution, protecting right to possession of immovable property anywhere in Nigeria.
vi. Exhibits E and E1 were addressed to 3 people from Iliya compound namely Raphael Ishola Ogun, A.B. Adeyemi and Chief Thomas Ogundele and it is a report of an attempt to settle parties, hence it is headed “Re: call for your intervention in a land dispute between Illiya Compound and ECWA Isapa.”
vii The Exhibits were written during the-pendency of this case to meet the Defence of this case.
He finally, urged this court to reject the argument of the appellant at paragraph 6:10 of his brief, that court should assume that Exhibits E, E1are related to Exhibit B as that is not the duty of the court.
He finally urged this court to resolve this issue against the appellant.
The appellant in their reply submitted that Exhibit B has the effect of nullifying or revoking Exhibits B and C though it was erroneously issued by the Local Government to the respondent. And that the learned trial judge should not have held that Exhibit E did not revoke Exhibit B or C.
I have taken my time to peruse the record of proceedings of the trial court and the briefs before this court on this issue, starting from the issue of the illiterate protection law, the appellant complain about non compliance with the illiterate protection law, because it is only the person on whose behalf he document is made that can complain is quite German.

On the point of non admissibility, of registerable instrument which has not been registered, the position of the law is that such is admissible to the extent that it can be used to prove an equitable interest see REGISTERED TRUSTEES OF APOSTOLIC FAITH MISSION VS. DUMEX (1987) 3 NWLR (PT 61), TEWOGBADE VS. OBADINA (1994) 4 NWLR (PT 338) 326 at 356 and ADDA VS. FASSEN (2004) ALL FWLR (PT 230) 1011 at 1041.
I have carefully examined Exhibit E and E1 which had been reproduced in this Judgment to see if it is a revocation letter of the land with Customary Right of Occupancy issued to the respondent. I see that the Customary Right of Occupancy issued to the respondent by Ekiti Local Government Area Council is addressed to the trustees of ECWA, but exhibit E was not addressed to the respondent. The lower court was right to hold that:
“/ have found this letter, Exhibit E and E1 was not addressed to the claimant. It was addressed to the three people I earlier mentioned. In that case Exhibit E and E1 is not a letter of revocation of the R of O, Exhibit B, tendered before this court”
I have already decided on Exhibit E and E1. I seek to abide by my resolution thereof on the potency of the Exhibits E and E1 that was written during the pendency of this case, though it could be prejudicial, it is not so as it was not made by a party interested in the case, nevertheless it throws light upon the status of the parties, as regards the Exhibits therein.
See also W.D.N LIMITED VS. OYIBO (1992) NWLR PT 239 PG 77 AT 95-96 where the court held as follows:
“Where a document is prepared during the pendency of an action for the purpose of the action, the court should attach any weight to it’.
I hold that preparation of Exhibits E and E1 made during the pendency of a case can be said to be done in bad faith, but nevertheless the council had given the benefits of their decision to aid the court and had also testified before it and so Exhibits E & E1 are relevant documents to the issue, of this property dispute.
In all, I hold that Exhibits E and El are not a revocation letter but a vital letter and in essence, issue four is resolved in favour of the respondent against the Appellant,, since Exhibit E and E1 is not a revocation letter.
ISSUES FIVE AND SIX
Now, to issue two of the Appellant’s brief which is tantamount to issue five and six of the Respondent’s brief, the argument proffered by the Appellant is predicated on the following grounds:-
a. That if the respondent has not acquired title to the land, it would mean that the land would still be vested in the customary owners, the Ile-Aofin section of Iliya Compound, who would be automatically entitled to the reliefs in the counter-claim.
b. The uncontroverted and unchallenged evidence of the applicant and his witnesses overwhelming point to the fact that the land in which the Appellant is building his house customarily belongs to He Aofm Section of Iliya compound which in turn granted the land to the Appellant.
c. The. Appellant-and his witnesses presented a more cogent and compelling case compared to that of the respondent, and the Appellant and his witnesses could not be shaken under the trial fire of the cross- examination.
d. The two arbitral bodies, the Oba of the town and the Local Government that intervened in the matter, adjudged the Appellant entitled to the land where he is building his house. The trial judge therefore, engaged in a hairsplitting exercise in holding at page 182 lines 17 -75 of the records of the court that the decisions of the arbitral bodies were not useful, when in fact they proved by virtue of the combination of the oral and documentary evidence on this issue that the local Governmenet has nullified the right of occupancy (Exhibit Boeing flaunted by the respondent as part of her root of title sequel to the intervention of the local Government in the dispute between the parties.
Appellant’s counsel then concluded, that based on the above grounds, if this case is placed on an imaginary scale of justice, the Appellant is better entitled to the disputed land on the balance of probabilities, and entitled to the reliefs sought by him vide the counter-claim. He urged this court to answer these issues in the affirmative.
The respondent argued grounds 6 7, 8 and 9 together. Chief P.A.O Olorunnisola, learned counsel to the respondent submitted-that the real issue in dispute has been overwhelmingly proved by the respondent and accepted by the court. He highlighted eight areas where the two parties agreed and four areas where the two parties disagreed. The eight areas where respondent’s counsel stated that the parties were in tandem are:-
a. That the late Oba Daramola Ataba was granted a piece of land by Illiya Compound for his settlement.
b. That the land occupied by the Oba Dammola Ataba became infested by termites.
c. Oba Daramola Ataba was forced out of the premises by termites.
d. Nobody was able to state-the dimension of land granted to Ataba.
e. Nobody was able to state how much of the land Oba Daramola Ataba occupied by the time he left.
f. ECWA church went to Oba Daramola Ataba to let them build the church where he vacated.
g. The respondent built on the termite infested area vacated by the late Oba Daramola Ataba.
h. Both parties agreed that the land was granted orally accordingly to their (Isapa) tradition.
“While the areas of disagreement as canvassed by respondent’s counsel are:-
a. Who has the authority to grant the land to ECWA (the claimant).
b. The validity of Exhibits A, B and C.
c. What is the area claimed by the respondent – is it the area occupied by late Oba Daramola? What is the area occupied by Oba Daramola Ataba?
d. Is there any evidence to resolve the disputed area as the court of trial did?
Respondent’s counsel then proceeded to argue on the points of disagreement.
On the first point of disagreement, the respondent’s counsel held that the land’ granted to Oba Daramola Ataba was an unconditional free gift to which no further permission was required from him to grant the land to anybody. Respondent’s counsel stated further, that inspite of the unconditional free gift to the Oba Daramola by the Iliya Compound (the Iliya Compound has the responsibility of granting the” land), the respondent still went to the Iliya family to let them know what was going on page 92, paragraphs 5 and 6. However it is the contention of the appellants through their witnesses in page 40 paragraphs 10, 11 and 14, that it is only the Aofin Compound that needs to be consulted and not Iliya Compound. Respondent’s counsel surmised on this point by stating that the explanation of the appellant at paragraph 6.09 of the Appellant’s brief does not cure the content of Exhibit E, E1, which states that the land in dispute is between ECWA Church (respondent) and Iliya Compound which supports the contention of the claim of the respondent that the land issue is for Iliya Compound not Aofin exclusively. Learned silk urged this court to discountenance the explanation of the counsel to the Appellant as it amounts to giving-evidence in an address, which is not permitted .Learned silk cited the case of OBASUYI V. BUSINESS VENTURES LTD. (2000) FWLR (PT.10) 1722 to buttress his, point.
On the validity of Exhibits A, B and C, respondent’s counsel submitted that these exhibits are independently made: whether Exhibit A ,B is valid or not, does not obliterate the evidence by the parties that the land was orally granted to the parties. That the officer that made Exhibits B and C went on the site and drew what they saw and surveyed. The respondent’s counsel further stated that the question whether the area surveyed is the land area vacated by Oba Daramola Ataba is a different matter. Furthermore, the fact that the local Government purportedly revoked the grant does not make the fact of measurement and the fact that the respondent is claiming the area on the exhibits untrue and void, which led the trial’ court to hold that the area being claimed on the exhibit is definite and clear, while equally holding that the area occupied by ‘the late Oba Daramola Ataba remains uncertain.
Respondent’s counsel then stated that the trial court rightly rejected Exhibits E and E1 and refused to use it as evidence of revocation, and backed his claim with the case of DABO V. ABDULLAHI (2005) ALL FWLR (PT. 255) 1039 AT 1055 B-G, where it was stated-
‘The facts which may justify the setting aside of a grant of Right of Occupancy cannot be used as a defence in an action in trespass when the grant which vested exclusive possession in the holder had not itself been set aside. The proper thing to do is to advance those facts in an action to set aside the grant. To treat the grant as annulled when no such remedy has been sought in the action and to hold that the party challenging the grant has a right to enter the land as if the holder of a right had at no time been granted cannot at all be right.’ The respondent’s counsel also cited the case of TEMILOLA V. OLOHUNKUN (1999) 4 SCJN 92 AT 103 AND ADDA V. JASSEH (2004) ALL FWLR (PT230) 1011 AT 1045 E-G.
Learned silk then stated that there was no evidence before the trial court on what persuaded the Local Government and the Oba to cause the purported revocation; that the only evidence in respect of the dispute over the land for the defence is from the defendant and his witnesses who during cross-examination confessed not to know anything about the grant to Oba Daramola Ataba or to the respondent, which all amounted to hearsay evidence.
Learned silk then submitted that from the records of the proceedings before the court, the main grudge of the Aofin family is that the land given to the respondent was not up to where the respondent built their new church and where the defendant is now building his house. Respondent’s-counsel stated that termites have no boundary of operation, and that the land given to the respondent’s was infested with termites. But because termites have no boundary, the Oba would have shifted to another area of the land that was not infested, but the Oba abandoned the land and the respondent’s church dared the consequence and lived on the land since 1961 up to 2003 when the DW6 encroached and was challenged by the respondent and in 2007 when DW5 – the defendant came on to the land. Furthermore, the Aofin family exercised no evidence of possession on the land as evidenced by – paragraphs 25 and 26 at page-94 of the trial record. Learned silk then commended the judgment of the lower court and urged same to be upheld.
However, the Appellant’s counsel in his reply brief argued on issue six of the respondent’s brief that the Appellant’s did not give evidence in their brief. That the case of OBASUYI V. BUSINESS VENTURES LIMITED (Supra) referred to in paragraph 8.07 of the Respondent’s brief is inapposite. Appellant’s counsel further stated that Exhibits A, B and C could not be issued in vacuo. Appellant’s counsel cited the case of AJIDE V. KELANI (1988) 11 SC 124 AT 173 where ESO JSC opined.
“Justice is not interested in scoring debating points. The defendant cannot make one case in his pleadings and an entirely different and inconsistent case by his sworn testimony. ”
To adumbrate that the Respondent cannot claim 13, 312, square metres by virtue of Exhibit A and then have recourse to oral grants as proof of title. Appellant’s counsel then stated that the judicial authorities cited in paragraph 8.12 of the Respondent’s brief are irrelevant because there is evidence, vide Exhibit E that the grant of the Respondent has been set aside by the Local-government. Appellant’s counsel concluded his reply brief by stating that the decision of the learned trial judge is unsupportable and deserves to be upturned.
From the Appellant’s reply brief, it can be deduced that the Appellant is in consensus ad idem with the Respondent counsel’s formulated grounds of agreement between the Appellant and Respondent in this case, as the law is that uncontroverted and unchallenged evidence must be accepted and acted upon. See OGUME V. IBWA (1988) 3 SCNJ: (PT.1) 13 at 33 – 34.
In light of this it becomes expedient for this court to deal with issues that have been disagreed with by the Appellant’s counsel in his Appellant’s reply brief because that is obviously the Appellant’s area of discontentment with the respondent. :
The Appellant’s concluded their reply brief by citing the principle of ex turpi causa non oritur actio and the case of THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) VS. EKE-SPIFF & ORS (2009) ALL FWLR (PT 467) 1 at 26-27 to urge this court to avail the appellant’s a reprieve against the fraud of the respondent.
Ancillary to this is that a party who alleges fraud must plead the particulars of the fraud. See Order 27 rules 4 and 1 of the Kwara State High Court Civil Procedures Rule, ALL STATES TRUST BANK VS. NSOFOR (2004) ALL FWLR (PT.201) 1719, WEST AFRICA BREWERJES LTD VS. SAVANNAH VENTURES LTD. (2002) FWLR (PT112) 53 OLAGUNJU V. ADESOYA (2004) ALL FWLR (PT 232) 1416. The question of fraud is a very serious crime and in civil matters, it must be especially pleaded with particulars and proved strictly, see FABUNMI V. AGBE (1985) 1 NWLR (PT. 2) 299 SC. This stems from the fact that where fraud is regarded as a crime in our jurisprudence and as such, where crime is alleged in civil proceedings, the standard of proof is higher; see E.D TSOKWA MOTORS & SONS CO LTD V. UBN LTD (1996) 10 NWLR (pt. 478) 281 S.C and the standard of prove in crime is beyond reasonable doubt See NEBO V. F.C.D.A & ANOR (1998) 11 NWLR (PT.574) 480 at 497. The Appellant relied greatly on his allegation of fraud and made a strong of same which had been founded upon.

On the claim of the Appellant that it is late in the day for the respondent to abandon their position and seek refuge in oral grant, it is obvious that the land in dispute which was given to the Respondent as an unconditional gift was given at that time without any documentary evidence. It is also known that the Respondent in order to perfect her title in 1994 applied for a root of title which led to Exhibits A, B and C. The-question now is, when the Respondent was given the land, through what means was the land granted? The logical answer would be through an oral grant. Does the oral grant of the land as stated by the Respondent automatically mean that the respondent has changed his earlier position and thus made a new case. The Respondent’s claim of an oral grant does not transform the case into a new case and as such the Appellant’s assertion of same is uncalled for and goes to no issue. However, it is clear that in order to establish ownership and a claim for damages a claim for damages in trespass and injunction puts title to the land in dispute in issue. See OGBECHIE -VS- ONOCHIE (1988) 1 NWLR (PT 70) 370, OGBUKWELU -VS- UMEANAFUNKWA (1994) 4 NWLR (PT 341) 676, ONABANJO -VS- EWETUJA (1993) 4 NWLR (PT.288) 445, ALLI -VS – ALESINLOYE (2000) 6 NWLR (PT660) 177.
Finally any member of the family can sue and be sued to protect family property. The respondent sued the appellant, the appellant then resorted to counter claim and in order to succeed to a claim of land, there are five ways of proving title to land which are as follows:
(a) By traditional evidence.
(b) By document of title.
(c) By various acts of ownership and possession.
(d) By acts of long possession and enjoyment of the land
(e) By proof of possession of adjacent land in dispute in such circumstances which render it probable that the owner of the adjacent land is the owner of the land in dispute. See cases as follows:
Idundun vs Okumagba (1976) 9-10 S.C 227, Atanda -vs- Ajani (1989) 3 NWLR (pt 111) 511, Ogunnaike -vs- Oluyemi (1987) 3 SC 215, Adeleke -vs- Sanni (1994) 1 NWLR (pt 322) 536, Onwugbufor -vs- Okoye (1996) 1 NWLR (pt 424) 252, Salami -vs- Mohammed (2000) 9 NWLR (Pt.673) 469. Oyadare vs Keji (2005) 1 SCJN 35 @ 41

Once a person is granted a Statutory Right of Occupancy in and over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the Certificate of occupancy is set aside. See the case of Ganikon vs. Ugochukwu Chem. Ind. Ltd. (1993) 6 NWLR (pt 297) 55. However, section 5 (2) of the Land Use Act does not preclude the court from setting aside the grant of the statutory right of occupancy in appropriate circumstances such as for instance, when it has been issued in error or has been obtained by fraud. See the cases of Teniola & Ors vs. Olohunkun (1999) 5 NWLR (pt 602) 280, Saude vs. Abdullahi
(1989) 1 NWLR (pt 116) 387.

A trial judge must thoroughly examine the evidence before him in and out, before making any decision in a case. The principle guiding the evaluation of evidence by trial court is that the totality of the evidence should be considered in order to determine which has weight at all, this, the trial court has not, done fairly when it refused to consider Exhibits E & D.
The basic foundation, that is traditional evidence having been rejected, there is nothing on which to found Acts of ownership. In the light of the foregoing authority, I hold that the learned trial judge was in error when he entered judgment for the plaintiff who failed to established his root of title through traditional evidence by falling back on acts of ownership and or acts of possession to prove his title. This is more so when it is trite that the five (5) ways of proving title to land are independent of one another. See case of Umermadozie Ogbuokwelu & Ors vs James Umuenafunkwa & Anor (1994) 5 S.C.N.J 24
The trial court having found that the respondent has failed to prove their root of title to ownership of the land in dispute as pleaded, the respondent could no longer be entitled to rely on Acts of ownership and possession to prove the same title to the land claimed. In Yekini Adedokun Oyadare vs Chief Olajire Keji & Anor (2005) 1 SCJN, 35 page 41. The apex Court Per Kutigi, JSC as he then was said,
“In the light of the foregoing authority, I hold that the learned trial judge was in error when he entered judgment for the plaintiff who failed to established his root of title through traditional evidence by falling back on acts of ownership and or acts of possession to prove his title. This is more so when it is trite that the five (5) ways of proving title to land are independent of one another. See case of Umennadozie Ogbuokwelu & Ors. vs. James Umuenafunkwa & Anor (1994) 5 S.C.N.J 24
Consequently, I hold that the learned trial judge was wrong In entering judgment for the respondent as per defective root of title. However the appellant was able to prove by traditional evidence and Act of ownership & possession, his counter claim. His lordship the HON JUSTICE KUTIGI JSC now retired C.J.N., further had this to say in respect of a plaintiff/appellant’s title who is claiming for trespass in Oyedare case (Supra) thus: “I think the court of appeal was right when it stated that having failed to prove his root of title as pleaded, the plaintiff was no longer entitled to rely on acts of ownership and-possession to prove the same title to the land claimed. But the court of appeal proceeded to apply the principle wrongly when it extended it to cover clams for trespass and injunction. It is settled by a chain of authorities that where the pleaded title to land has not been proved, as in this case it will be unnecessary to consider acts of ownership and possession which acts are no longer acts of possession but acts of trespass. See Balogun vs Akanji (1988) 1 NWLR (ptj. 70) 301, Fasoro & Anor vs Beyioku & Ors (1988) 2 NWLR (pt 76) 263”
By virtue of section 15 of the Court of Appeal rules 2007, I hereby make the following orders: from the foregoing, I could not see my way clearly to declare the respondent as still the bonafide owner of the disputed property via Exhibits A & B in view of the fact that those Exhibits A & B are tainted with fraud. They therefore cannot confer any title on the plaintiff/respondent, accordingly I hereby declare Exhibits A & B null and void and of no effect whatsoever.
However, the counter-claimant is entitled to the portion of land upon which he has built his house and therefore he is not a trespasser and accordingly not liable to the claim of the plaintiff/respondent. The appellant/counter-claimant succeeds in his claim only to the extent of it being in compliance with the demarcation made in exhibit E by the original owners of the property as confirmed by the authority of Ekiti Local Government of Kwara State in their letter of Exhibit E which is the product of settlement of the disputed land by a process of mediation in dispute settlement.
I am obliged in equity to also order that the respondents be allowed to retain all their structures already constructed on the disputed land in accordance with the dictates of justice.
Finally the parties are accordingly exhorted to abide by the demarcation and partition of the disputed property as reflected in Exhibit E, or in the alternative in any way which conforms to justice. Underlining is for emphasis.
Consequently, I hold that this appeal is not lacking merit, the judgment of the lower court is hereby set aside.
There is no-order as to costs.

IGNATIUS IGWE AGUBE, J.C.A.: I agree.

CHIMA CENTUS NWEZE JCA: I agree.

Appearances

E.. O Osunwuyyi (Miss);
G.A. Olorunfemi (Miss)
O.O. Abifarin Esq., and
Abiodun bello Esq.,For Appellant

AND

Chief P.A.O Olorunnisola, SAN with
O.T Olorunnisola Esq.
Dolu Oyeyiola Esq.
Ronke Aboaba (Miss) and
Bukola Tomoloju (Miss)For Respondent