MR. SAMATU ADELEKE & ORS. V. YESUFU OGUNWUSI & ANOR.
(2012)LCN/5424(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of May, 2012
CA/I/223/2008
RATIO
LAND LAW: METHODS OF PROVING TITLE TO LAND
The five methods of proving title to land are now so trite that it is almost unnecessary to restate them. However for the avoidance of doubt the following methods were laid down in the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227.
They are:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The claimant is not required to establish each of the five methods. He would be entitled to a declaration if he establishes any one of them. Where he relies on traditional evidence and it is found to be cogent it is sufficient to sustain his claim. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
LAND LAW: BURDEN OF PROOF IN A CLAIM FOR TITLE TO LAND
The onus is on the claimant to prove his title upon a preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See: Onwugbufor Vs Okoye (1996) 1 NWLR (424) 252: Shittu Vs Fashawe (2005) 14 NWLR (946) 671; Eze Vs Atasie (2000) 9 WRN 73 at 88; Adesanya Vs Aderonmu (2000) 13 WRN 104 at 115 lines 10 – 35. It is also important to note that where the defendant did not file a counter claim the burden of proving title to the land in dispute rests squarely on the claimant. There is no duty on the defendant to prove his title. See: Adekanbi Vs Jangbon (2007) ALL FWLR (383) 152 @ 160 G: 163 E & 165 D- F. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
PLEADINGS: WHETHER PLEADINGS CONSTITUTE EVIDENCE
The law is well settled that pleadings do not constitute evidence. See Yusuf Vs Adegoke (supra) at 377 D – F. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
PROCEDURE: PRINCIPLES GUIDING THE COURT IN AN APPLICATION TO AMEND PLEADINGS
His Lordship, Niki Tobi, JSC in the case of Akaninwo & Ors. Vs Nsirim & Ors. (2008) 9 NWLR (1093) 439 @ 461 – 462 F – A, cited the decision of the Supreme Court in: Adekeye & Anor. Vs Chief O.B. Akin-Olugbade (1987) 6 SC 268 @ 280 – 281; (1987) 3 NWLR (60) 214 @ 223 – 224 per Eso, JSC on the well-known principles that guide the court in an application to amend pleadings. He stated thus:
“The aim of an amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of Counsel. It will certainly be wrong to visit the inadvertence or mistake of Counsel on the litigant. The Courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed, if this an be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES:
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. MR. SAMATU ADELEKE
2. MR. OSENI AYELABOWO
3. ALHAJI HAMMED ARIYIBI
4. MR. DANIEL ODESINA
5. MR. GBENGA ADEWUYI
(FOR THEMSELVES AND ON BEHALF OF OTHER MEMBERS OF OGANGI FAMILY) – Appellant(s)
AND
1. YESUFU OGUNWUSI
2. MRS. YEMISI ADESOPE
(FOR THEMSELVES AND ON BEHALF OF OTHER MEMBERS OF OGUNWUSI FAMILY) – Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State, Ile-Ife Judicial Division delivered on 11/6/07 dismissing the plaintiffs/appellants’ claims and entering judgment in favour of the defendant/respondent.
By their 4th Amended Statement of Claim the appellants herein as plaintiffs for themselves and on behalf of other members of Ogangi family sought the following reliefs against the respondents for themselves and on behalf of other members of Ogunwusi family:
1. An order that the plaintiffs who are in physical possession of their farmland situate, lying and being at Oke Adara Ogangi Village via Ipetumodu, Ife North Local Government Council Area of Osun State be allowed to be in continuous possession of the said farmland verged yellow in the accompanying plan.
2. An order that the plaintiffs are entitled to the statutory right of occupancy of the said farmland situate, lying and being at Oke Adara Ogangi Village via Ipetumodu, Ife North Local Government Council Area of Osun State.
3. N500,000.00 (Five Hundred Thousand Naira Only) being special and general damages suffered by the plaintiffs as a result of the defendant’s act of trespass upon the plaintiffs’ cocoa trees, kolanut trees, orange trees, palm trees, banana trees, breadfruit trees and cassava on their said farmland against the defendants.
4. Perpetual injunction restraining the defendants, their servants, agents and privies from committing further acts of trespass on the said farmland verged yellow.
The parties filed and exchanged pleadings, led evidence in support of their respective positions and tendered exhibits. Learned counsel for both parties adopted written addresses at the conclusion of the trial. In a considered judgment delivered on 11/6/07 the learned trial Judge dismissed the plaintiffs’ claims and entered judgment in favour of the defendants. The plaintiffs were dissatisfied with the judgment and filed a notice of appeal containing twelve grounds of appeal. The notice of appeal was amended pursuant to an order of this court made on 6/3/09. It was further amended to reflect the substitution of some of the appellants who were deceased. The Amended Notice of Appeal was filed on 19/8/2010.
In compliance with the Rules of this Court the parties duly filed and exchanged their respective briefs of argument. At the hearing of the appeal on 5/3/12 S. HAMMED ESQ., adopted and relied on the appellants’ amended brief of argument dated 30/6/10 and filed on 19/8/10. It was deemed filed on 13/7/2011. He also adopted and relied on the appellants’ amended reply brief dated and filed on 13/7/2011. He urged the court to allow the appeal and set aside the judgment of the lower court. A. A. AWOSEEMO ESQ., learned counsel for the respondents adopted and retied on the amended respondents’ brief dated 8/3/2011 and filed on 13/7/2011. It was deemed filed on 13/7/2011. He urged the court to dismiss the appeal. He also urged the court to discountenance the arguments canvassed in the amended reply brief on the ground that the respondents adopted the issues formulated by the appellants and did not raise any new issue in their brief.
The appellants formulated seven issues for determination as follows:
1. Whether the appellants have not discharged the onus of proof placed on them regarding traditional history on settlement of their ancestor and the line of succession thereafter.
2. Whether the appellants’ pleadings contradict the evidence adduced by them and their witnesses.
3. Whether the case of Kojo II Vs Bonsie is not applicable to this case and if applicable whether the conclusion of [the] trial court has not occasioned a miscarriage of justice.
4. Whether visit to the locus in quo by the trial court would not have clearly shown the features on the disputed land and acts of possession canvassed by both parties thereby obviating the doubt as to the location of the land.
5. Whether the refusal of the trial court to amend “Ife North Local Government” to “Ife Central Local Government, when the pleadings and evidence led centred on the latter and whether this has not deprived appellants of justice.
6. Whether the court can grant to a party relief(s) not claimed by the party.
7. Whether the trial court properly and adequately evaluated the evidence before it in arriving at its judgment.
No issue was distilled from Ground 8 of the Amended Notice of Appeal. It is deemed abandoned and accordingly struck out. The respondents adopted the issues formulated by the appellants. The appellants’ issues 1, 2, 3 and 4 are interwoven and shall be considered together.
Issues 1, 2, 3 & 4
In respect of the first issue, learned counsel for the appellants argued that the appellants led credible evidence in support of their traditional history and that upon a preponderance of evidence they had proved exclusive possession and ownership of the land in dispute. On what a party relying on traditional history must prove he relied on: Naruma vs. Ebuzoeme (2006) WRN 133 @ 156 – 158; Akinloye v. Eyiyola (1968) NMLR 92; Olujinle vs. Adeagbo (1988) 2 NWLR (75) 238. He submitted that the appellants duly pleaded and led evidence to establish all the requirements. He submitted further that the appellants pleaded the location and boundaries of the land and tendered Exhibit AA1 in proof thereof.
Learned counsel stated at page 10 paragraph 4.04 of his brief. “The natural feature of Adara River was pleaded and proved to be in between Appellants’ family land and Respondents’ family land. Awosun stream was pleaded and proved to be the natural boundary between Ife and Ipetumodu people and it forms one of the boundaries of the appellants’ family land because the appellants’ family hails from Ile-Ife.” He submitted that the appellants had discharged the onus of proof on them on the strength of their own case. Learned counsel argued further. “There is no contradiction in the evidence of the appellants and their witnesses as they kept on informing the court that when coming from Ile-Ife and passing to Ibadan, one would see Adara River after the respondents’ family land and Awosun stream after appellants’ family land. It is submitted that it was the trial court that misconceived the issue of the two rivers or summarised the parties’ evidence inadequately or incorrectly.” He submitted that in addition to the appellants’ evidence that the families of both parties are related. Exhibit AA3 was an alusion to long association of the parties on their different farmlands. He contended that the respondents only denied their relationship and the fact that the appellants are indigenes of Ile-Ife in order to deprive their family of their interest in the land.
With regard to the second issue learned counsel referred to the pleadings and evidence of the appellants’ witnesses and submitted that their evidence was in line with their pleadings and was uncontradicted. He referred to: Amadi Vs Nwosu (1992) 6 SCNJ (Part 1) 59 @ 65; Yusuf vs. Adegoke (2008) 40 WRN 1 @ 46 lines 40 – 45; also found in (2007) 11 NWLR (1045) 332. He argued that a visit to the locus in quo would have enabled the trial court to see the villages and other features as described by the appellants and would have eliminated any seeming contradiction or doubt. He contended that the failure of the learned trial Judge to visit the locus in quo had occasioned a miscarriage of justice.
On the third issue, learned counsel submitted that the learned trial Judge did not properly evaluate the appellants’ evidence of settlement, exclusive ownership and possession. He submitted that there was no break in the chain of devolution of title from the original settler down to the appellants and therefore the trial court ought to have upheld their case. He referred to Yusuf Vs Adegoke (supra) and Olubodun vs. Lawal (2008) WRN 1 @ 71 lines 5 – 10. He submitted that the learned trial Judge ought to have applied the principle in Kojo II vs. Bonsie (1957) 1 WLR 1223 to the facts of this case having regard to the competing traditional histories, to see which is more probable. He referred to: Sanusi & Ors. vs. Adebiyi & Anor. (1997) 12 SCNJ 25. He argued that the learned trial Judge erred by rejecting the appellants’ evidence of traditional history before placing the two competing histories on an imaginary scale. He contended that the appellants had thereby suffered a miscarriage of justice. He relied on: Otuedon vs. Olughor (1997) 7 SCNJ 411 @ 437 para 4.
Issue 4 complains about the failure of the learned trial Judge to visit the locus, which was also addressed under issue 2.
In reaction to the above submissions, learned counsel for the respondents submitted that where a trial is by pleadings the judgment of the court must be based on the pleadings. He relied on: University of Calabar vs. Essien (1996) 12 SCNJ 304 @ 326 ratio 3. He argued that PW1 and PW2 failed to testify as to the successive intervening owners of the land in dispute in accordance with their pleadings. He pointed out certain omissions and urged the court to deem those aspects of the pleadings in respect of which evidence was not led as having been abandoned. On what a plaintiff must plead and prove when relying on traditional evidence, he relied on the case of Lawal vs Olufowobi (1996) 12 SCNJ 376 @ 384 ratio 1. He submitted that there was a gap in the evidence as to the intervening owners and that in the circumstances the line of succession ought to be rejected. He referred to Yusuf Vs Adegoke (supra) at 52 – 53 lines 30 – 15. He submitted that there was no dispute as to the location of the land as both parties were ad idem that the land is situate between Adara Stream and Awosun River. On the appellants’ place of origin he stated that PW2 under cross-examination testified that he used to write Ipetumodu on his tax receipts as his town.
With regard to issue 2 he submitted that the evidence of PW1 is at variance with the pleading in paragraph 6 of the 4th amended statement of claim. He contended that a visit to the locus in quo would have been of no beneficial value to the parties.
On the applicability of the rule in Kojo II Vs Bonsie, learned counsel argued that the appellants neither pleaded nor proved the line of succession that entitled his family to ownership of the land. He submitted, without conceding, that even if the appellants had pleaded the line of succession, there were gaps, which made the evidence of traditional history unreliable. He referred to Lebile Vs Regd. Trustees C & S Church of Zion Ugbonla 13 NSCQR 19 @ 28: (2003) 2 NWLR (804) 399 or (2003) 1 S.C. (Pt. 1) 25. He submitted further that there was no conflict in the traditional histories of the parties as the appellants were to succeed on the strength of their own case. He referred to: Okoko Vs Dakolo (2006) 47 WRN 1 @ 38 lines 25 – 40; (2006) 14 NWLR (1000) 401. He maintained that the refusal of the trial court to visit the locus has not occasioned a miscarriage of justice, as there was no dispute as to the identity or location of the land.
Before I consider arguments in the appellants’ amended reply brief it is necessary to reiterate once again the purpose of a reply brief. Order 18 Rule 5 Court of Appeal Rules 2011 (Order 77 Rule 5 of the 2007 Rules) provides:
“The Appellant may also, if necessary within fourteen days of the service on him of the Respondent’s brief, file and serve to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.” (Emphasis mine)
A Reply brief is not to afford the Appellant an opportunity to reargue his case or to expatiate on arguments already canvassed in the main brief. See: Nwali vs. State (1991) 3 NWLR (182) 663: Shuaibu vs. Maithoda (1993) 3 NWLR (284) 748; Akinrinmade vs. Lawal (1996) 2 NWLR (429) 218: Adebiyi vs. Sorinmade (2004) ALL FWLR (239) 933. The appellants’ amended brief of argument consists of 18 pages. The amended reply brief consists of 23 pages in far more detail than the main brief. I observe that the appellants’ amended brief of argument date d 30/6/2010 was prepared by OYE ADEDIRAN ESQ. On 25/5/2011 the appellants changed their counsel to S. HAMMED ESQ, who filed the Amended Appellants’ Reply brief and argued the appeal before us. It seems to me that S. HAMMED ESQ. found the brief prepared by OYE ADEDIRAN ESQ, deficient in certain respects. He tried to remedy this by advancing copious arguments and making numerous references to issues of facts to flesh out the main brief. As stated earlier, that is not the function of a reply brief under our rules. Learned counsel ought to have applied to amend the amended appellants’ brief rather than try to reargue the appeal in the reply brief.
From the submissions of learned counsel for the respondents on issues 1 to 4 summarised above, it is clear that he squarely addressed the issues raised in the amended appellants’ brief and did not raise new issues. For instance it was contended in the appellants’ brief that they gave credible evidence in support of their pleadings as to who founded the land and the intervening owners right down to the present appellants. Learned counsel referred to relevant paragraphs of the pleadings and the evidence of the appellants’ witnesses. Learned counsel for the respondents on the other hand contended that there were gaps in the evidence of intervening owners. It thus becomes an issue of fact for this court to determine based on the pleadings and evidence led in support thereof. It is not open to the appellants in their reply brief to make further reference to the pleadings and evidence to convince the court on the issue. All the pleadings and facts relied upon ought to have been addressed in the main brief. Any attempt to reargue the appeal will be disregarded.
Learned counsel for the appellants argued that since the respondents did not deny some specific paragraphs of the appellants’ pleading, the burden of proof on the appellants was minimal. He relied on the case of: Bua Vs Dauda (2003) 9 SCM 152 and 153 ratio 9a. He submitted that the Supreme Court decisions in Lawal Vs Olufowobi (supra); Yusuf Vs Adegoke (supra) and University of Calabar Vs Essien (supra) cited by learned counsel for the respondents are all distinguishable from the facts of the instant case.
With regard to the respondents’ argument that the appellants are not natives of Ile-Ife citing the evidence of PW2 that he used to write Ipetumodu on his tax returns, learned counsel submitted that this fact does not make PW2 and the entire members of his family natives of Ipetumodu.
The five methods of proving title to land are now so trite that it is almost unnecessary to restate them. However for the avoidance of doubt the following methods were laid down in the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227.
They are:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The claimant is not required to establish each of the five methods. He would be entitled to a declaration if he establishes any one of them. Where he relies on traditional evidence and it is found to be cogent it is sufficient to sustain his claim. The onus is on the claimant to prove his title upon a preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See: Onwugbufor Vs Okoye (1996) 1 NWLR (424) 252: Shittu Vs Fashawe (2005) 14 NWLR (946) 671; Eze Vs Atasie (2000) 9 WRN 73 at 88; Adesanya Vs Aderonmu (2000) 13 WRN 104 at 115 lines 10 – 35. It is also important to note that where the defendant did not file a counter claim the burden of proving title to the land in dispute rests squarely on the claimant. There is no duty on the defendant to prove his title. See: Adekanbi Vs Jangbon (2007) ALL FWLR (383) 152 @ 160 G: 163 E & 165 D- F.
A careful perusal of the 4th Amended Statement of Claim (hereinafter referred to as the statement of claim) reveals that the appellants as plaintiffs before the trial court relied on traditional evidence to establish their entitlement to a declaration of title in their favour. The learned trial Judge at pages 107-108 of the record summarised the parties’ cases as disclosed by their pleadings as follows:
“… It is the case of the plaintiffs that they are the descendants of Ogangi who was one of the children of Ooni of Ilare in Ile-Ife. That Ogangi was to ascend the throne of Ooni but felt bitter about the situation and packed out of his father’s house at Ilare to settle at Olodan village when another person was enthroned; that many villages became the offshoot of Olodan which is now deserted and that Ogangi’s descendants had been in exclusive possession of their farmland at the village along Ife-Ibadan Express Road without let or hindrance from anybody including the defendants until this case. It is also the case of the plaintiffs that Ogangi and Ojaja, the ancestor of the defendants were related on their mother’s side at Osese compound. Okerewe in Ile-Ife and that Ogangi was the elder brother and both families have all along maintained and observed the family tie.
The plaintiffs also averred that Ogangi, their ancestor farmed at Olodan village, Oke Adara where he settled by planting both cash and food crops but this farmland verged Yellow in Plan No. OS/152/94/DS03 is now being disputed by the defendants; that they and their tenants had been in physical possession and they and the defendants have a common boundary which is Adara stream.
Finally, it was in the statement of claim that the defendants in the years 1990 and 1993 unlawfully broke and entered a portion of the land, destroyed cash and food crops, cut the land into building plots and sold to third parties.
On their part, the defendants averred that the plaintiffs’ claim be dismissed with costs as they are grossly misconceived and mala fide. It is their contention that there was never an Ooni of Ilare; they confirm that they are the descendants of Ojaja of Ojaja compound (not of Loodi Compound); that they are neither related to the plaintiffs nor have family ties with them and at no time did they enter the plaintiffs’ farm which is at the other side of Awosun stream on Ipetu side.
It is their evidence that they have been in uninterrupted physical possession for over 200 years; that the Awosun Stream is the traditional boundary between them and that the Plaintiffs now wrongfully claim the Ife side of Awosun stream. It is also part of their defence as averred that Plaintiffs have no food or cash crops or any property on the Ife side of Awosun stream and finally they denied entering the plaintiffs’ farmland and damaged (sic) or destroyed cash and food crops therein.”
His Lordship thereafter summarised the evidence led by the parties in respect of their pleadings.
The factors that a party relying on traditional history must prove, as submitted by learned counsel for the appellants, were stated in the case of Nruama Vs Ebuzoeme (2006) 2 WRN 133 @ 158 lines 20 – 45 as follows:
i. Who founded the land;
ii. In what manner the land was founded; and
iii. Names and particulars of successive owners through whom the land devolved from the founder to a living descendant or descendants, who would most likely give that oral history.
See also: Akinloye Vs Eyiyiola (1968) NMLR 92; Mogaji Vs Cadbury Nig., Ltd. (1985) 2 NWLR (7) 393; Lawal vs. Olufowobi (1996) 12 SCNJ 376.
After considering the evidence of the parties on this issue, the learned trial Judge concluded that the traditional history as given by the appellants was not convincing.
The relevant paragraphs of the statement of claim in support of the first requirement are paragraphs 1, 4, 5, 6, 8, 10, 11, 20, 21 and 31 reproduced hereunder:
1. The plaintiffs are the descendants of Ogangi who was one of the children of Ooni of Ilare in Ile-Ife.
4. Ogangi, (Plaintiffs’ ancestor) was to ascend the throne of Ooni a long time ago but another person was enthroned.
5. As a result of paragraph 4 above, Ogangi felt bitter about the situation and packed out of his father’s house in Ilare in annoyance and settled at Olodan village since time immemorial.
6. Olodan village is now deserted after the descendants of Ogangi have established many other villages on the farmland namely: Adejinmi village, Anifowoshe village, Adegbile village, Ogangi IdiIroko village, Timi Taiwo village, Odebowale village to mention a few.
8. Ogangi had 7 wives with 7 children; each wife had one child for him. The names of the 7 direct children are Adawo, Tenibi, Adepiti, Oyelakin, Arile, Awolalu and Olanlokun.
10. The said Ogangi the ancestor of the plaintiffs and the said Ojaja the ancestor of the defendants were related on their mother’s side at Osese Compound, Ile-Ife.
11. Ogangi was senior brother to jaja.
20. The plaintiffs as descendants of Ogangi were all brought up on the farmland.
21. The plaintiffs have since been in physical possession of the farmland with the villages already mentioned under paragraph 6 above.
31. That since settlement of Ogangi at Olodan village at Oke Adara from time immemorial, he had been exercising numerous, positive and uninterrupted acts of ownership over the farmland.
In paragraph 9 (i) – (vii) they pleaded the descendants of each of the seven children down to those descendants, including the plaintiffs, who were living on the land.
PW1 testified that the land in dispute was founded by their ancestor Ogangi from time immemorial after he left his father’s house in annoyance when he was not made Ooni of Ilare and that he settled at Olodan. He also testified although Olodan village no longer exists there are other villages established by Ogangi. He named the villages pleaded in paragraph 6 above. The respondents in their pleadings and through their witnesses contended that the title Ooni of Ilare does not exist. That they are not related to the appellants and that there is no Olodan village on the Ife side of the Awosun River. See paragraphs 2, 3, 5, 7, 10, 11, 28 and 29 of the statement of defence at pages 58 – 61 of the record. Contrary to the contention of learned counsel for the appellants in his amended reply brief these assertions amount to a clear denial of the traditional history pleaded by the appellants.
As noted above the appellants pleaded the various descendants of each of Ogangi’s seven children in paragraph 9 (i)-(vii) of the statement of claim. In support of the said pleadings, PW1, Samotu Adeleke (a member of Ogangi family and the 1st appellant in this appeal) testified thus at page 65 of the record:
“Ogangi had seven wives and seven children. Some of the seven children are Adawo and Tesibi who is my grandfather. I come from Tesibi lineage. Plaintiffs’ family and defendant’s family are the same and related on the mother (sic) side.”
Under cross-examination he said he did not know the name of the Ooni who died before his ancestor Ogangi vied for the throne. He was unable to state the name of the Ooni of Ilare. A booklet on the history of the ruling houses of Ooni of Ife and those who had held the title from 1894 to the present was tendered through DW1 as Exhibit AA2. Its purpose was to show that there was never an Ooni of Ilare. The appellants were unable to dispute the contents. The argument of learned counsel for the appellants that the booklet amounted to hearsay evidence because it was not tendered by its maker is untenable. The learned Judge held, and I agree with him that since the booklet was sold to the public, any member of the public who purchased the book would be a proper person to tender it. PW2 also stated that he did not know the names of any of Ogangi’s wives except for his grandmother. He was also unable to state the name of the present head of his father’s house at Ilare.
PW2, Joseph Adekanmi (the original appellant in this appeal) testified regarding successive owners of the land as follows:
“My names are Joseph Adekanmi. I am a farmer. I live at Ogangi Compound, Ipetumodu. I know Samotu Adeleke. He is the surviving eldest Dawodu Baale in Ogangi’s compound. I know the defendant. Ogangi had 7 children who are Adawo Awolalu and Olanlokun. I belong to Adawo section.”
PW3 was the surveyor who prepared Exhibit AA1 while PW4 testified that his late father was a farmer on the plaintiffs’ land and the farm passed to him upon his father’s death.
The evidence of PW1 and PW2 above is a far cry from the detailed pleading in paragraph 9 of their statement of claim as to how the land devolved from Ogangi through successive owners to the present members of the family. For instance, PW2 mentioned only three of Ogangi’s seven children. Although he testified that he is of the Adawo lineage, he failed to trace the said lineage from Adawo to himself. Paragraph 9 (i) of the statement of claim reads:
9. “The descendants of Ogangi from each direct child are as follows:
(i) From Adawo to Oderinde, Alugbin, Adekunle, Moyosade, Josiah Odetoye (3rd plaintiff), Samson Adetoro (4th plaintiff) and Joseph Adekanmi (2nd plaintiff).”
From this pleading, it is not stated what Adawo’s relationship was to all the other persons listed. Were they his children, grandchildren or great grandchildren? Who begat who? What is PW2’s relationship to them? Not only were these facts not pleaded, the oral evidence of PW2 was completely bereft of any useful particulars.
PW1 testified that he is from Tenibi lineage. Paragraph 9 (ii) reads as follows:
“9. (ii) From Tenibi to Adegbile, Adetoro, Omolebe, Adetoogun and Gbolode, the last two are the living descendants on the farmland.”
PW1 is Samotu Adeleke. There is no Adeleke among the names listed above. Who among the named persons was his father or grandfather? And how did the land devolve on him? No evidence was led in this regard.
It is not sufficient for a party relying on traditional history to merely state that his ancestor founded the land and that he and his descendants have lived on the land from time immemorial. The particulars of the intervening owners must be pleaded and proved. The appellants failed to discharge the onus on them in this regard. The common thread that runs through the cases of Lawal. Vs Olufowobi (supra). Yusuf vs. Adegoke (supra) and University of Calabar Vs Essien (supra) is that the burden of proof in a case of this nature rests squarely on the party who asserts his right to the declaration sought and further that parties are bound by their pleadings and must lead cogent and credible evidence in support thereof to succeed. See Yusuf Vs Adegoke (2007) 11 NWLR (1045) 332 @ 379 D – H, 353 C – D. In the case of Lawal Vs Olufowobi (supra) at 384 lines 19 – 26 the Supreme Court held thus:
“… I think the lower courts were also correct when they held that the plaintiffs failed to prove not only how they descended from Akingbade but also how Akingbade’s land became Ibipe Community land. Here once again it was not sufficient for the plaintiffs to have merely pleaded that they were also descendants of Akingbade like the defendants. They ought to have pleaded particulars of intervening descendants or owners through whom they descend or claim. And the onus of doing that as well as proving their case rested on them.”
In the instant case the appellants pleaded (though not clearly) the particulars of the intervening owners but failed to lead evidence in support of those pleadings. The law is well settled that pleadings do not constitute evidence. See Yusuf Vs Adegoke (supra) at 377 D – F.
I agree with the learned trial Judge that the appellants’ evidence of traditional history was not cogent enough to be relied upon. In Elegushi Vs Oseni (2005) 14 NWLR (945) 348 @ 368 C the Supreme Court held that since the plaintiffs failed to make out a prima facie case against the defendants at the trial on their claim of ownership and title to the land in dispute, the defendants had no need to answer them on their defence, especially where they did not counter claim against them. The Court per Onu, JSC at 368 D – E (supra) held:
“See the case of Mogaji Vs Cadbury Nig. Ltd. (1985) 2 NWLR (7) 393 wherein this court held that where pleadings of the parties raise the issue of who the original owners of the lands were, the plaintiffs in this matter have a very heavy burden to discharge, and they can only succeed on the strength of their own case and not on the weakness of the defence. Since the plaintiffs failed to discharge this burden, the quo waranto of their claim (that is ownership) was not established and I so hold.”
As far as the appellants’ case was concerned having failed to discharge the onus on them of leading evidence in support of their traditional history to show how the land devolved on them from Ogangi through intervening owners, their claim for declaration of title based on ownership could not succeed. They had failed to prove their root of title. Where a party fails to prove his root of title through traditional history he cannot fall back on acts of ownership or long possession because there would be nothing upon which to hinge such acts. See: Owhonda Vs Ekpechi (2003) 17 NWLR (849) 326: Gbadamosi Vs Okege (2011) 3 NWLR (1233) 175 @ 195 – 196 H – B: 201 C – E; Yusuf Vs Adegoke (supra) at 358 C – E.
I am of the view that the principle in Kojo II Vs Bonsie is not applicable in this case. It is only where the claimant has made out a prima facie case of traditional history that the court would be obliged to place the competing histories on an imaginary scale by considering facts in recent years. See: Lebile Vs Regd. Trustees C & S Church of Zion, Ugbonla (supra) at 428 B – C; Irawo Vs Adedokun (2005) 1 NWLR (906) 199 @ 213 – 214 G – C. In the instant case, the evidence led by the appellants in support of their traditional history as to how the land devolved on them was not in line with their pleadings. It is only where both histories are found to be probable or where the history relied upon by both parties is inconclusive that the issue would be resolved by reference to facts in recent years. I am therefore unable to agree with learned counsel for the appellants that the learned trial Judge was wrong in first considering the traditional history relied upon by them and rejecting it.
On the issue of the failure of the learned trial Judge to visit the locus. I agree with learned counsel for the respondent that there was no dispute between the parties as to the location or identity of the land in dispute. Both parties agree that the land is situate between Adara Stream and Awosun River. Awosun River is said to be the boundary between Ipetumodu and Ile-Ife. It was the appellants’ contention before the lower court that the entire land between Awosun River and Adara stream belongs to his family and that Adara Stream when going towards Ibadan from Ile-Ife is the natural boundary between his family land and that of the respondents’ family. The respondents on the other hand contended that the land on both sides of Adara stream, up to Awosun River belong to their family. In other words, that Adara Stream is not a boundary between the two but is within and runs through their land. It was also the contention of the respondents that the appellants and their family are indigenes of Ipetumodu and that no indigene of Ipetumodu can own land on the Ile-Ife side of Awosun River. At the trial, learned counsel for the plaintiffs urged the court to undertake a visit to the locus. When asked what purpose the visit would serve, learned counsel said it was to enable the court see the features of the land canvassed by the parties and the villages and farms mentioned by some of the witnesses. His Lordship ruled as follows at page 80 of the record:
“The application to visit the locus in quo was made with the aim of seeing the villages and streams. The aim also would have been to see farmlands. The question is, are there specific features the visit would assist the court to see and decide upon?
Or the visits would be to see that the villages or streams exist. In my view the visit to the locus would serve no useful purpose since those things are not in issue. Both parties commissioned survey, which are already before the court, and both highlight the disputed area. It is my view and I so hold that a visit to the locus will serve no useful purpose in this instance and is therefore unnecessary.”
I am unable to fault this view of the learned trial Judge. What the plaintiffs’ counsel sought to do was to have the parties identify the places where they claimed to have their farmland and some of the villages mentioned. As both parties had filed survey plans depicting the relevant features, and learned counsel for the plaintiffs was unable to satisfy the court as to how the visit would advance his case, the request was rightly declined. See: Eboade Vs Atomesin (1997) 5 SCNJ 13 @ 24 – 25. Issues 1 – 4 are accordingly resolved against the appellants.
Issue 5
Whether the refusal of the trial court to amend “Ife North Local Government” to “Ife Central Local Government” when the pleadings and evidence led centred on the latter and whether this has not deprived appellants of justice.
Learned counsel for the appellants referred to paragraph 33 (i) of the 4th Amended Statement of Claim where the plaintiffs claimed as follows:
“33 (i) An order that the plaintiffs who are in physical possession of their farmland situate, lying and being at Oke Adara Ogangi Village via Ipetumodu, Ife North Local Government Council Area of Osun State be allowed to be in continuous possession of the said farmland verged yellow in the accompanying plan.”
He submitted that the appellants and their witnesses did not at any time testify that their farmland was in Ipetumodu. That their evidence was to the effect that their farmlands were near Ipetumodu. He submitted that when going to Ibadan from Ile-Ife both Ife North and Ife Central Local Governments have Awosun River as their common boundary. He submitted that the court below was wrong not to allow the amendment. He was of the opinion that the learned trial Judge allowed “abstract or inordinate legalism to becloud or drown the merits of the case”, which has resulted in injustice to the appellants.
In reaction to this issue, learned counsel for the respondents submitted that there was no mention of any local government area on the appellants’ survey plan Exhibit AA1. He submitted that their evidence was to the effect that the land in dispute is in Ile-Ife. He queried whether, if Ife North Local Government was amended to read Ife Central Local Government, Ipetumodu referred to in the claim would also be amended to read Ile-Ife. He submitted that since the appellants did not apply to amend Ipetumodu to read Ile-Ife, the refusal did not occasion a miscarriage of justice.
In reply, learned counsel submitted that it was within the discretion of the court, even without an application, to amend a party’s pleadings to be in line with the evidence adduced to enable it resolve all the issues in contention once and for all.
It is noteworthy that the application to amend paragraph 33(i) and (ii) of the plaintiffs’ pleading was made during the adoption of final addresses by learned counsel. After considering the submissions of learned counsel and the applicable law, the learned trial Judge ruled on the application as follows:
“The evidence which the plaintiffs led in Court is that the disputed land is situate at Ogangi Village along Ibadan/Ife Road, Ile-Ife. No mention was made in the survey plan Exhibit AA1 or the evidence of the plaintiffs regarding the Local Government Area. I therefore would not ordinarily have any problem in granting leave to amend the Local Government Area.
However there is a misgiving in the town “Ipetumodu”. It is noteworthy that Mr. Adediran did not apply that the name of the town be amended. It will therefore be ludicrous for me to grant the application to amend Ife North Local Government Area to read Ife Central Local Government Area when Ipetumodu is situate in Ife North Local Government Area as pointed out by Mr. Awoseemo who argued also that the amendment, if granted, would overreach the Defendants. I believe so too because the Defendants would not have the opportunity to adduce evidence to the surreptitious amendment, if granted.
I find it difficult to exercise my discretion in favour of the plaintiffs at that stage of the proceedings when parties had closed their cases.
The application is therefore refused. (See pages 118 – 119 of the record).
His Lordship, Niki Tobi, JSC in the case of Akaninwo & Ors. Vs Nsirim & Ors. (2008) 9 NWLR (1093) 439 @ 461 – 462 F – A, cited the decision of the Supreme Court in: Adekeye & Anor. Vs Chief O.B. Akin-Olugbade (1987) 6 SC 268 @ 280 – 281; (1987) 3 NWLR (60) 214 @ 223 – 224 per Eso, JSC on the well-known principles that guide the court in an application to amend pleadings. He stated thus:
“The aim of an amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of Counsel. It will certainly be wrong to visit the inadvertence or mistake of Counsel on the litigant. The Courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed, if this an be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.”
In the instant case, it was a serious point of contention between the parties as to whether the appellants own any land on the Ile-Ife side of the Awosun River. As earlier observed, the respondents contended that the appellants are from Ipetumodu and cannot own land on the Ile-Ife side of the river. PW2 testified that he lives at Ogangi compound, Ipetumodu. Later in his evidence he stated. “I have never left the land. We have always been there.” Under cross-examination he admitted that on his tax returns he claims Ipetu as his town. (See page 70 paragraphs 1 and 3 and page 72 lines 28 – 31 of the record). The proposed amendment was therefore not a minor procedural issue as contended by learned counsel for the appellants. The issue as to whether the land situate within Ile-Ife, being claimed by the plaintiffs indeed belonged to them was a material issue. They had argued forcefully that although they are indigenes of Ile-Ife some of them reside in Ipetumodu. If the land in dispute is wholly within Ile-Ife, or via Ile-Ife there would be no need to describe it as being via Ipetumodu, Ile-Ife is in Ife Central Local Government Area while Ipetumodu is in Ife North Local Government Area. If the order were granted as prayed, it would leave an anomaly with regard to the reference to Ipetumodu, which is in Ife North Local Government Area. I am of the view that it was not within the discretionary power of the court to make a consequential amendment by changing the words “via Ipetumodu” to “via Ile-Ife” as suggested by learned counsel for the appellants having regard to the issue in contention between the parties. In view of the fact that the application to amend was made during the adoption of final addresses. I agree with the learned trial Judge that it could not be granted as prayed and to suo motu amend the proposed amendment in the manner now being suggested would overreach the respondents who would not have had an opportunity to react to it.
This issue is accordingly resolved against the appellants.
Issue 6
Whether the court can grant to a party a relief (s) not claimed by the party.
It is contended on behalf of the appellants that the learned trial Judge erred in giving judgment for the defendants (respondents herein) when there was no request for such a relief. He relied on: A.G. Federation Vs A.I.C. Ltd. (2004) 6 SCNJ 171 @ 178. He submitted that the order was made without jurisdiction and ought to be set aside. He referred to: Ezenwu Vs Onyechi & 2 Ors. (1996) 2 SCNJ 250 @ 268 and Awosile Vs Sotunbo (1992) 6 SCNJ (Pt.2) 192 @ 197.
Learned counsel for the respondents contended that there was no error in the order. He referred to: Anabaronye Vs Nwakaihe (1997) 1 SCNJ 161 @ 168 lines 27 – 32.
In determining this issue, I am of the view that it is necessary to consider the context in which the order complained of was made. There is no doubt that the defendants did not file a counter claim. At page 119 of the record the learned trial Judge held:
“It is my conclusion that the plaintiffs have failed to prove their title to the disputed land; and a fortiori are not entitled to damages for trespass and are also not entitled to perpetual injunction as claimed. Judgment is therefore given for the defendants.”
The only award made in favour of the respondents was the award for costs. No declaration was made in their favour since they did not seek any. The effect of the judgment is that the defendants successfully defended the suit brought against them by the plaintiffs. I do not agree with learned counsel that giving judgment for the defendants amounts to granting a relief not sought for by them.
His Lordship, Adio, JSC held in: Adesina & Anor. Vs Comm. Of Ifon-Ilobu Boundary Commission Osogbo & Anor. (1996) 4 SCNJ 112 @ 120 – 121:
“In a claim for declaration of title, the dismissal of the plaintiffs claim does not, without a counter claim, confer title on the defendant. This is because such a judgment decrees no title to the defendant not having sought the declaration.”
See also: Anabaronye Vs Nwakaihe (1997) 1 SCNJ 161 @ 168 lines 27 – 32 relied upon by learned counsel for the respondents, wherein Adio, JSC opined thus:
” … So, if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the rival traditional histories the plaintiff fails in the decree which he seeks, and judgment must be entered for the defendant.”
Even if one were to take the view that the proper order ought to have been the dismissal of the plaintiffs’ claims simpliciter, the respondents have not been given anything by the judgment. The appellants failed to show that the wording of the Judgment as couched has occasioned a miscarriage of justice. This issue is accordingly resolved against the appellants.
Issue 7
Whether the trial court properly and adequately evaluated the evidence before it in arriving at its judgment.
In support of this issue, learned counsel for the appellants submitted in paragraph 10.01 of his brief as follows:
“The evidence of the appellants’ witnesses clearly proved the appellants’ family root of title (which is settlement), how the settlement came about by the family ancestor, namely Ogangi, the boundaries of his settlement and features that can be found thereon till today. The line of succession from the seven direct children of Ogangi till the present generation of appellants was also proved with preponderance of evidence as well as the Ile-Ife nativity of the appellants cum the relationship of the appellants’ family with the respondents’ family. All these were properly pleaded in the 4th Amended Statement of Claim … It is submitted with respect that the quality of the evidence adduced by the appellants and their witnesses ought to till (sic) the trial court’s judgment in their favour.”
He submitted that the court was wrong to have dismissed the appellants’ case before “putting emptiness for the appellants together with the respondents’ evidence on the imaginary scale.” He argued that in the circumstances the appellants were not granted a fair hearing. He referred to: E.S.C.S. Ltd. Vs. N.M.B. Ltd. (2006) 14 W.R.N. 45 @ 113 lines 10 – 35; Otuedon Vs Olughor (1997) 7 SCNJ 411 @ 434 paragraph 3 and 437 paragraph 4.
He submitted further that Exhibit AA2, the booklet in respect of Ooni of Ife Ruling Houses and Exhibit AA4, the respondents’ survey plan relied upon by the learned trial Judge were at best documentary hearsay on which no probative value should be placed, as they were not tendered by their makers. He relied on Section 92 of the Evidence Act 1990 and the case of Olubodun Vs Lawal (supra) at page 72 lines 30 – 40.
In reply to this issue learned counsel for the respondents’ brief response at page 5 of his brief is as follows:
“The appellant by their evidence and pleadings failed to prove to the Court that he was the owner of the land in dispute. The traditional history relied upon by the appellant can not be relied upon to sustain a claim for ownership of land.”
In reaction, learned counsel for the appellants relied on his earlier arguments in his amended reply brief in respect of issue 2.
I have held earlier in this judgment that the appellants failed to prove their root of title, which is the hanger upon which all other evidence is founded. Notwithstanding the fact that the learned trial Judge had his doubts about the cogency of the traditional history, as given by the appellants, he still proceeded to consider the evidence led by both sides on the merits. With due respect to His Lordship it is my humble view that he burdened himself unnecessarily in an attempt to do justice to both sides. He compared and contrasted the evidence of the parties regarding the alleged relationship between the two families at pages 113 – 114 of the record. He found, rightly in my view, that the appellants were unable to prove their relationship with the respondents’ family.
His Lordship reproduced the evidence of DW2, Chief Solomon Ogunwusi, in support of paragraphs 5, 6, 7 and 8 of the Statement of Defence and in reaction to the averments in paragraphs 10, 11, 12, 13 and 14 of the 4th Amended Statement of Claim and his impression thereof:
“Ojaja and Ogangi to my knowledge are not related and I am not a young man. They are not related at all. Ojaja’s mother was from lle Gangan in Ilara. Ojaja and Osese’s compound are more than one mile by distance. The plaintiffs have never been involved with celebrations in our family. I became Sooko in 1970. They didn’t come to participate neither did they send anything. I don’t know them. My father died in 1933. Since we are not related and I don’t know them they couldn’t have participated in the burial of Felix Ogunwusi’s father. I have never heard of Oderinde not to talk of participating in his burial, Isale-Ora people built house near my father’s house. I don’t know Ogangi family.”
His Lordship held:
“This (evidence above) was corroborated by DW1. Suggestions under cross-examination that Aina was the mother of Ojaja, Omowade was the mother of Ogangi, and that both Aina and Omowade were begotten by Iya Oloja were rebuffed by DW2 who stuck me as a witness of truth. His demeanour was impressive and I have no reason to disbelieve his evidence.”
It is the prerogative of the trial Judge who has the advantage of seeing and hearing the witnesses testify to evaluate and ascribe probative value to their testimony. There is no basis for rejecting his assessment of the witnesses in this instance. Moreover, having denied the appellants’ assertions, the burden shifted back to the appellants to rebut the evidence of the respondents, which they failed to do.
At page 117 of the record, the learned trial Judge also held:
“It was another common ground between the parties that no Ife man can own land beyond Awosun River when facing Ibadan from Ile-Ife. Having failed to establish their Ife ancestry in their traditional history, and since the land in dispute is situate before Awosun River, it is my view that the balance of probability tilts in favour of the defendants.”
This finding can also not be faulted, as the appellants failed to prove not only how the land devolved on them but also their relationship to the respondents, who claim they (appellants) are from Ipetumodu and not Ile-Ife.
The appellants’ root of title having failed, they had failed to discharge the onus of proof on them to establish their case on a preponderance of evidence or balance of probabilities. As I had previously observed, there was no obligation on the respondents to prove their own title as they did not file a counter claim. The law is that acts of ownership and possession are merely incidental to the title if proved. Once title is not proved, the appellants’ case collapses. I am of the view that the learned trial Judge in this case properly evaluated the evidence before him and rightly concluded that the appellants had failed to prove their case. This issue is accordingly resolved against the appellants.
In conclusion, I find no merit in this appeal. It is hereby dismissed. The judgment of the High Court of Osun State, Ife Judicial Division in Suit No. HIF/57/1993 delivered on 11/6/07 is hereby affirmed. Costs of N70,000.00 are awarded against the appellants and in favour of the respondents.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree entirely with the judgment. His Lordship has dealt fully and comprehensively with all the issues raised in the appeal. I agree that the appeal lacks merit and ought to be dismissed. I also dismiss it. I abide by the consequential orders in the lead judgment including the order as to costs.
MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother KEKERE-EKUN, JCA. The issues in this appeal have been robustly resolved by my learned brother. I agree with His Lordship that this appeal lacks merit. I also dismiss it.
I abide by all the consequential orders in the lead judgment including the order for costs.
Appearances
S. Hammed Esq.,
5th Appellant present. For Appellant
AND
A. A. Awoseemo For Respondent
