MR SAMUEL ONOMO FAKOYA & ANOR v. MR. KASIMU SEIDU IJELU
(2014)LCN/7318(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of June, 2014
CA/L/849/2008
RATIO
EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN LAND MATTERS
In a claim for declaration of title to land, a plaintiff has the burden of proving his case upon his own evidence and cannot rely on the weakness of the defendants’ case and this is equally so even where the defendant did not enter a defence. A plaintiff, where applicable, can however take advantage of evidence by the defence, which supports his case. See IBE vs AUTA (1998) 2 NWLR (PT 538) 497; ONISAODU VS ELEWUJU (2006) 13 NWLR (PT. 998) 2 NWLR (PT. 538) 497; ORUBON VS GBONDU (1999) 11 NWLR (PT. 628) 661; DIKE VS OKOLOEDO (1999) 10 NWLR (PT. 623) 359; ANIMASHAUN VS OLOJO 9 – 10 SC 103; KODILINYE VS. ODU (1935) 2 WACA 336. A plaintiff who seeks declaration of title to land must prove his root of title to the land, where his title is traced to a particular person he must further prove how that person got his own title or came to have the title vested in him. SEE DIKE VS OKOLOEDO (SUPRA) AND OTANMA VS YOUDUBAGHA (2006) 2 NWLR (PT 964) 337. The concept of the burden of proof in land matters is well stated by the Supreme Court in KAIYAOJA VS EGUNLA (1974) 12 SC 55 AT 61 as follows:- “We are not unmindful of the fact that it is a well established principle of law that in a claim for declaration of title, the onus is always on the plaintiff to establish his claim and that it is not open to him to rely on the weakness of the defendant’s case. The court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of this claim. The test is whether the plaintiff has been able to prove to the satisfaction of the Court that he has a better title than the defendant” See AKPAN AWO vs COOKEY GAM (1913) 2 NLR 100; ADEWUYI Vs ODUKWE (2005) ALL FWLR (PT 278) 1110 and OWIE vs IGHIWI (2005) ALL FWLR (PT 248) 1761. It must however be noted that it is now settled that where there is no evidence to put on one side of the imaginary scale in a civil case, minimum evidence on the other side satisfies the requirement of proof. See NWABUOKWU VS OTTIH (1961) All NLR 487. ADEWUYI VS ODUKWE SUPRA and BURAIMOH VS. BAMGBOSE (1989) 3 NWLR (PT. 109) 352. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
EVIDENCE: PROVING TITLE TO OR OWNERSHIP OF LAND; WAYS OF PROVING TITLE TO OR OWNERSHIP OF LAND
It is long settled in this country that there are five ways of proving or establishing title to or ownership of land. These are by traditional evidence; Production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time; by acts of long possession and enjoyment of the land; by 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 dispute. It is also settled that the establishment of one of the five ways is sufficient proof of ownership. See IDUNDUN VS OKUMAGBA (1976) 9-10 SC. 227, NDUKUBA Vs IZUNDU (2007) 7 NWLR (PT 1076) 432; EWO VS. ANI (2004) 17 NSCQR 36; NKWO vs IBOE (1998) 7 NWLR (PT 558) 354 and ADEWUYI VS ODUKWE (2005) All FWLR (PT. 278) 1100 AT 1110-1111. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
EVIDENCE: PROOF OF GRANT OR ORIGINAL SETTLEMENT; THE DUTY OF THE PARTY WHO RELIES ON ORIGINAL SETTLEMENT TO ESTABLISH SUCH GRANT OR FIRST SETTLEMENT
The plaintiff who relies on grant or original settlement is required to establish such grant or first settlement to the satisfaction of the trial court. He should trace the undisturbed possession of his ancestor to the inheritance to himself – Oluyole v. Olofa (1968) NNLR 462 and Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177 and the case of OKPALA v. OKPU (2003) 5 NWLR (PT 812) 183. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
EVIDENCE: PROOF OF TRADITIONAL HISTORY; THE DUTY OF THE PLEADING RELYING ON TRADITIONAL HISTORY TO NARRATE THE GENEALOGICAL TREE FROM THE ORIGINAL OWNER, THE ANCESTOR, IN GENERATIONS APPURTENANT TO HIM, DOWN THE LINE TO THE HIM
It is settled law that in pleading traditional history in a claim for declaration of titles, the plaintiff is expected to narrate the genealogical tree from the original owner, the ancestor, in generations appurtenant to him, down the line to the plaintiff. That is to say, he must prove who founded the land; in what manner the land was founded and the circumstances leading to it. Then the successive persons to whom the land thereafter devolved through or unbroken chain or in such a way that there is no gap which cannot be explained. See ODI Vs IYALA (2004) 8 NWLR (Pt. 875) 283; EWO VS ANI (2004) 3 NWLR (PT. 861) 610 AND OKOKO VS DAKOLO (2006) 14 NWLR (Pt. 100) 401. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
COURT: INTERFERENCE; WHETHER THE COURT WILL NOT INTERFERE WITH A DECISION CORRECTLY REACHED BY A TRIAL COURT
The Court will not interfere with a decision correctly reached by a trial court even if the reason for the decision is faulty. See ODUKWE Vs. OGUNBIYI (1998) 8 NWLR (PT. 561) 339; JIKANTORO VS. DANTORO (2004) 5 SCM 68 and A.G. LEVENTIS (NIG.) PLC vs AKPU (2007) WRN 1 at 27. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
UDO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. MR SAMUEL ONOMO FAKOYA
2. CHIEF GANIYU OMOTAYO – Appellant(s)
AND
MR. KASIMU SEIDU IJELU – Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State, Ikeja Division, delivered by B. A. Oke – Lawal J. on the 20th day of February 2007 in suit No. ID/3074/94 wherein the claimants claim was dismissed.
The Appellants herein for themselves and on behalf of Otugorishen family in Ikorodu had as claimants in the lower Court, vide an amended writ of summons and statement of claim sought the following reliefs against the defendants (now Respondents);
(1) A Declaration that the plaintiffs are entitled to a grant of Certificate of Occupancy under the Land Use Act in respect of the Land situate at 13 Ipebi lkorodu Lagos State.
(2) N100,000.00 damages for trespass.
(3) Perpetual injunction restraining the defendant from building, constructing any building or committing any further act of trespass on the said land.
(4) An order of forfeiture of the defendants customary tenancy in respect of the plot or parcel of land situate and being at 13 Ipebi Ikorodu Lagos.
The Appellants’ case was that their ancestor, Chief Aafolu migrated from Ile Ife with his brother, Elemono and settled on the Ipebi Land where he built houses and planted Iroko trees. He also allocated the land in dispute to Elemono who upon his demise his children inherited the said land under Yoruba native law and custom. The Appellants family had continued to exercise various acts of owner on the whole of Ipebi land including the land in dispute over a long period of time and all the houses surrounding the land in dispute (i.e No 13 Ipebi quarters) belong to the children of Aafolu.
The defendant’s father was at a time a customary tenant in the disputed land and upon his death his children continued to reside on it but are now denying the appellants title to the land and asserting ownership of it. They infact broke into and entered the said land on or about 15th November 1994 and attempted to commence building on it and upon a complaint to the police by the appellants they were adviced to resort to peaceful settlement. The matter was referred to the traditional council which found in favour of the appellants but the respondents persisted in seeking to erect structures on the land hence this suit was instituted.
However, the Respondents as defendants in the lower Court did not file any statement of defence or participate in the trial during which the appellant called one witness and tendered a survey plan. At the conclusion of the trial and adoption of the plaintiffs written address, the learned trial judge in a reserved judgment dismissing the suit, held as follows:-
“Furthermore the claimant must succeed on the strength of his case and not on the weakness of the defendant, I find that the evidence of the claimant is very weak, not cogent, and totally insufficient to succeed on a claim for declaration of title.
I find that the claimant has failed to lead sufficient evidence to establish his claim of title or customary tenancy between them and the defendant since claimants failed to establish his claim the answers to issue 1 and 2 will be in the negative and therefore issue 3 will be inapplicable and irrelevant.
I find in totality that the claimant has failed to establish their claim as required by law.
The claim is dismissed in its entirety”
The appellants were dissatisfied with the said judgment and accordingly filed a Notice of Appeal on 9th May 2007 with five grounds of appeal. An amended Notice of Appeal containing nine grounds was subsequently filed on 5th August 2011 with the leave of this court.
In compliance with the relevant rules of this court, briefs of argument were subsequently filed and served which brief were adopted by the parties at the hearing of the appeal on 3rd June, 2014.
The Appellants’ brief of argument settled by Joseph Kulugh Esq. and A. O Hassan Esq. was dated and filed on 18th November, 2012. The Respondents brief of argument dated 28th January 2013 and filed on 20th June 2013 but deemed properly filed on 20th November 2013 was settled by Lekan Ijelu Esq.
In the Appellants’ brief of argument four issues were formulated for determination from the nine grounds of appeal as follows:-
(1) Whether the learned trial judge was right and the Appellants did not suffer miscarriage of justice when the court dismissed the claims of the Appellants after the Appellants had satisfied the requirements of law to be adjudged owners of the land in dispute, subject matter of this suit and to succeed on their claims before the court.
(2) Whether the findings of fact and the conclusion reached by the trial court were perverse and occasioned a miscarriage of justice to the Appellants in the circumstances.
(3) Whether the learned trial judge failed to consider, evaluate, appraise and attach probative value to the credible, uncontradicted and unchallenged evidence led by the Appellants at the trial in this suit in respect of the land in dispute.
(4) Whether the judgment of the trial court was against the weight of evidence adduced by the Appellants in this case.
The Respondents on the other hand formulated the following two issues for determination viz:-
(1) Whether the Appellants indeed did not fail to establish their claim for title as required by law at the lower Court.
(2) Whether this court ought to disturb the findings of fact by the lower Court.
I observe first hand that the four issues raised in the appellants brief of argument are nothing but the four sides of the same square. They all relate to whether the lower Court reached the right decision, given the unchallenged evidence adduced at the trial by the appellants. This is also reflected in the appellants brief wherein the argument canvassed on the four issues have a common ground.
Moreover, a careful perusal of the record of appeal with particular reference to the pleadings and evidence adduced at the trial, and the judgment of the lower Court vis a vis the grounds of appeal leads me to the conclusion that the resolution of issue No 3 will properly determine the appeal, moreso that the two issues raised by the Respondents are subsumed in the Appellants issue No 3.
Accordingly I will consider this appeal on the basis of the said issue No 3. See AGBAREH VS MIMRAH (2008) 1 SCNJ 409 AND EMEKA NWANA vs FCDA (2004) 7 SCNJ 90 AT 99.
ISSUE NO 3
WHETHER THE LEARNED TRIAL JUDGE FAILED TO CONSIDER, EVALUATE, APPRAISE AND ATTACH PROBATIVE VALUE TO THE CREDIBLE, UNCONTRADICTED AND UNCHALLENGED EVIDENCE LED BY THE APPELLANTS AT THE TRIAL IN THIS SUIT IN RESPECT OF THE LAND IS DISPUTE.
Dwelling in this issue learned counsel for the appellants submitted that issues of fact, evaluation of evidence and making of findings of facts are within the exclusive competence of the trial court. But in the instant case, this court is in a good position to determine the question as to the inference on the deduction the trial court should have made from uncontested facts which were also not traversed by the Respondent not the credible evidence adduced before the lower Court challenged or contradicted. Reference was made to the following authorities: OPUZIBAU VS. KWOKWO (2002) NWLR (PT. 747) 116; AKINSIBADE vs STATE (2006) 17 NWLR (PT 1007) 184 AT 211 – 212; ANYEGWU vs. OMUCHE (2009) 3 NWLR (PT 112A) 659 AT 678; OSUAGWU vs STATE (2009) NWLR (PT.1123) 523; IGAGO vs STATE (1999) 14 NWLR (PT. 637) 1; THOMPSON vs AROWOLO (2003) 7 NWLR (PT. 818) 163 AND AGBAJE VS AJIBOLA (2002) 2 NWLR (PT 750) 127.
He added that the lower Court in this case failed to consider the evidence relating to the decision of the Traditional Council, which found that the Respondent has no interest in respect of the land in dispute. It was further argued that the decision of the traditional council operates as an estoppel against the Respondent because both parties presented their cases and it was found that the Respondent have no interest in respect of the land and which verdict the Respondent never rejected in which case the lower Court would have relied on the said decision of the Traditional Council to grant declaration of title to the appellants. It was also submitted that the finding of the lower Court that the ancestors of the parties were brothers and that the Respondents are descendant of Elemono is contrary to the evidence of the Appellants.
Learned counsel also contended that the failure of the trial court to properly evaluate the evidence of the existence of customary tenancy between the parties made it to discountenance the Appellants’ claim for forfeiture of the Respondents customary tenancy in respect of the land in dispute.
It was also the argument of learned counsel that the lower Court in His judgment only set out the first three claims of the appellants because it considered the issue of forfeiture as irrelevant having earlier found that the Appellants failed to prove title and existence of customary tenancy. Argument was also advanced to the effect that the Respondent having denied the appellants ownership of the disputed land, this constitutes a ground for the determination of the Respondents customary tenancy vide SAGAY VS NEW INDEPENDENCE RUBBER LTD (1977) SC 158
This court was then urged to interfere with the findings of the lower Court on the ground that it failed to properly evaluate and ascribe probative value to the evidence of the Appellants. Responding on this issue, the learned counsel for the Respondent submitted that it is the law that where a defendant did not take necessary steps to join issues with the claimant, the statement of claim remains unchallenged and the oral evidence is deemed sufficient proof of the case vide IFETA VS SHELL PETROLEUM DEVELOPMENT CORPORATION OF NIGERIA LTD (2006) 8 NWLR (PT 983) 585; OKOLI VS MARINHO (2006) 15 NWLR (PT. 1002) 316 AND ASIKA VS ATUANYA (2008) 17 NWLR (PT. 1117) 484.
He noted however that victory for the claimant in such circumstance is not automatic given the fact that a claimant must succeed on the strength of his case and not rely on the weakness of the defence. See HARKA AIR SERVICES LTD VS KEAZOR (2008) 1 NWLR (PT 960) 160 AND OGUNYADE VS OSUNKEYE (2007) 15 NWLR (PT 1057) 218.
He added that in the instant case where there is a claim for declaratory relief the requirement is stronger because declaratory reliefs are not granted or based on admissions or default of defence. He cited the cases of AKANIWON VS NSIRIM (2008) 9 NWLR (PT 1093) 43A AND OLUBODUN VS LAWAL (2008) 17 NWLR (Pg. 1115) 1.
It was further submitted that in a claim for declaration of ownership of land, the law is that to succeed, a claimant must satisfy the court as to:-
(a) The precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance or otherwise and
(b) Evidence establishing the nature of the title claimed.
AJIBOYE VS ISHOLA (2006) 15 NWLR (PT. 1998) 628 AND NRUAMA VS EBUZDEME (2006) 9 NWLR (PT. 985) 217.
Reference was also made to the five recognized ways of proving title to land as established by authorities and it was noted that the appellants from their pleadings and evidence predicated their claim on evidence of traditional history. He added that a party relying on traditional history in order to succeed in his claim must plead and prove:-
(a) Who founded the land in dispute and exercise of original acts of possession:
(b) In what manner the land was founded; and
(c)The successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained and history must show how the land by a system eventually came to be owned by the party.
He cited the following authorities: – OYADARE VS KEJI (2005) 7 NWLR (PT 925) 571, ELEGUSHI VS OSENI (2005) 14 NWLR (PT 945) 348, OKOKO vs DAKOLO (2006) 14 NWLR (Pt. 1000) 401, OKEGBEMI vs. AKINOLA (2008) 4 NWLR (PT. 1076) 53.
He added that a party who relies on evidence of traditional history as a proof of title must aver in his pleadings seriatim, the genealogical tree or line of succession of the family from the cradle of the founding fathers to him in vindication or proof of the pleadings. Unless he performs these two procedural functions, his action is bound to fail. That is to say that the pleadings of the devolution and the evidence in support must be reliable and credible otherwise the claim will fail, vide DAGARI OF DERE VS DAGACI OF EBWA (2006) 7 NWLR (PT 979) 382 AND IBIKUNLE VS LAWANI (SUPRA).
It was further submitted that in both the pleadings and evidence of the Appellants in the lower Court, they did not in any place plead or prove their direct line of descent from Chief Aafolu whom they claimed settled in Ipebi where the land in dispute is located.
Reference was made to paragraphs 5, 6, 7, 8, 9 and 10 of the 2nd Appellants written statement on with to contend that the appellants did not satisfy the two procedural requirement stated by the court in DAGACI’S case because they failed to plead and lead evidence on the names of the children of Elemono or how they exercised various acts of ownership over the land in dispute, neither did they plead or prove how they descended from their ancestor Chief Aafolu of his brother Elemono.
This he says, was the main reason why the lower Court dismissed the appellants claim as being scanty and unreliable, vide THOMPSON VS AROWOLO (2003) 9 NWLR (PT 818) 163 AND AKANBI VS SALAMI (2003) 13 NWLR (PT. 838) 637.
On the issue of forfeiture, learned counsel submitted that same can only be relevant if a claimant is able to establish his root of title to the land in dispute vide ELEGUSHI VS OSENI SUPRA. He added that in the instant case, the Appellants failed to prove their root of title at the lower Court.
On the issue of the failure of the lower Court to rely on the decision of the Traditional council, it was submitted that the evidence of the decision of the Traditional council is not one of the established or recognized ways of proving ownership, besides the fact that the said evidence was not sufficiently established at the lower Court but was merely alluded to in passing.
Arguing further in their issue two learned counsel was of the stance that where a trial court makes a finding of fact and there is sufficient evidence in support thereof, then unless the said findings are perverse, and not supported by evidence or reached by way of wrong application of the principles of substantive or procedural law, an appellant court cannot reverse it, even if disposed to come to a different conclusion. He cited DIKE vs OKONKWO (2008) ALL FWLR (PT 404) 1575.
He added however, that in the instant case the lower Court rightly came to the conclusion that the evidence adduced by the appellants in support of their traditional history was scanty and unreliable. The fact that there was an error in stating that Chief Aafolu and Elemono were brothers does not affect the conclusion reached by the trial court in His judgment and it also did not occasion a miscarriage of justice to warrant the interference of the appellate court. He then urged this court to dismiss the appeal.
The substance of this appeal as presented by the appellants is that, since the Respondents never filed any statement of defence or appeared personally to defend the case in the lower Court, the implication is that the appellants claim remains unchallenged and uncontroverted and with minimal onus being discharged, the court ought to have granted the reliefs claimed by the appellants.
In a claim for declaration of title to land, a plaintiff has the burden of proving his case upon his own evidence and cannot rely on the weakness of the defendants’ case and this is equally so even where the defendant did not enter a defence. A plaintiff, where applicable, can however take advantage of evidence by the defence, which supports his case. See IBE vs AUTA (1998) 2 NWLR (PT 538) 497; ONISAODU VS ELEWUJU (2006) 13 NWLR (PT. 998) 2 NWLR (PT. 538) 497; ORUBON VS GBONDU (1999) 11 NWLR (PT. 628) 661; DIKE VS OKOLOEDO (1999) 10 NWLR (PT. 623) 359; ANIMASHAUN VS OLOJO 9 – 10 SC 103; KODILINYE VS. ODU (1935) 2 WACA 336.
A plaintiff who seeks declaration of title to land must prove his root of title to the land, where his title is traced to a particular person he must further prove how that person got his own title or came to have the title vested in him. SEE DIKE VS OKOLOEDO (SUPRA) AND OTANMA VS YOUDUBAGHA (2006) 2 NWLR (PT 964) 337.
The concept of the burden of proof in land matters is well stated by the Supreme Court in KAIYAOJA VS EGUNLA (1974) 12 SC 55 AT 61 as follows:-
“We are not unmindful of the fact that it is a well established principle of law that in a claim for declaration of title, the onus is always on the plaintiff to establish his claim and that it is not open to him to rely on the weakness of the defendant’s case. The court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of this claim. The test is whether the plaintiff has been able to prove to the satisfaction of the Court that he has a better title than the defendant”
See AKPAN AWO vs COOKEY GAM (1913) 2 NLR 100; ADEWUYI Vs ODUKWE (2005) ALL FWLR (PT 278) 1110 and OWIE vs IGHIWI (2005) ALL FWLR (PT 248) 1761.
It must however be noted that it is now settled that where there is no evidence to put on one side of the imaginary scale in a civil case, minimum evidence on the other side satisfies the requirement of proof. See NWABUOKWU VS OTTIH (1961) All NLR 487. ADEWUYI VS ODUKWE SUPRA and BURAIMOH VS. BAMGBOSE (1989) 3 NWLR (PT. 109) 352.
Now it is not in doubt that the Respondent did not file any statement of defence or adduce any evidence at the lower Court in defence of the claim against him. It follows therefore that what is required of the appellants is to produce sufficient and satisfactory evidence (minimally though) in support of his claim. This is given the fact that the test is whether the Appellants have been able to prove to the satisfaction of the Court that they have a better title than the Respondent. See KAIYAOJA VS EGUNLA (supra).
It is long settled in this country that there are five ways of proving or establishing title to or ownership of land. These are by traditional evidence; Production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time; by acts of long possession and enjoyment of the land; by 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 dispute.
It is also settled that the establishment of one of the five ways is sufficient proof of ownership. See IDUNDUN VS OKUMAGBA (1976) 9-10 SC. 227, NDUKUBA Vs IZUNDU (2007) 7 NWLR (PT 1076) 432; EWO VS. ANI (2004) 17 NSCQR 36; NKWO vs IBOE (1998) 7 NWLR (PT 558) 354 and ADEWUYI VS ODUKWE (2005) All FWLR (PT. 278) 1100 AT 1110-1111.
In the instant case, the Appellants pleaded in paragraphs 3 to 16 of their Amended Statement of claim as follows:-
3. The piece and parcel of land known as No 13 Ipebi quarters, Ikorodu, Lagos State originally belongs to Chief Aafolu the Plaintiffs ancestor who died many years ago.
4. Chief Aafolu migrated from Ile-Ife, he was a blacksmith, when he came from Ile Ife he settled on the piece of land called Ipebi, built houses and planted Aoko trees thereon and lived there before he died.
5. The Plaintiffs aver that Chief Aafolu was the first to become the Otugorishen of Ikorodu.
6. The Plaintiffs aver that when Chief Aafolu migrated from Ile Ife he came with a brother called Elemono whom he allocated the particular portion of the land in dispute and Elemono settled on same.
7. After the death of Elemono, the children inherited the land in question under Yoruba native law and custom and have continued to exercise various acts of ownership covering a long period on the whole land at Ipebi including the one in dispute which is known as No 13 Ipebi Quarters, Ikorodu Lagos.
8. The Plaintiffs aver that all the houses surrounding No 13 Ipebi Quarters belong to the children and successors and family members of the Aafolu and the Defendant herein has no interest or any interest or at all in respect of any of the Ipebi lands.
9. That the Defendant’s father was at a time a customary tenant in the aforesaid land and after his death the Defendant’s family continued to reside on the property.
10. That the Defendant who is a descendant of the Ijelu continued to reside on the premises and is now denying the title of the Plaintiffs family and asserting ownership at the land.
11. The Plaintiff contend that Defendant is entitle to forfeit his customary tenancy of the land in dispute in so for as he is claiming ownership and denying the title of the Plaintiffs family.
12. The Plaintiffs state that Chief Aafolu was the first settler on Ipebi land and the Plaintiffs are direct descendants and have inherited Ipebi land including the portion known as No 13 Ipebi Quarters, Ikorodu Lagos from time immemorial.
13. The Plaintiffs aver that on or about the 15th of November, 1994, the Defendant broke into the said land without the consent and authority of the Plaintiffs with their workmen and agent in an attempt to commence building on the land.
14. The Plaintiffs promptly lodged complaint at the Police Station which advised that peaceful resolution be found to the dispute.
15. Consequent to the above, the matter was referred to the Traditional Council and after listening to the cases of the parties, the Defendant was advised that his father, contrary to the Defendant’s assertion, had no interest on the land.
16. The Plaintiffs aver that notwithstanding the above, the Defendant again brought in his workmen and started digging foundation with a view to erecting a structure on the land.
The evidence adduced of the Appellants in the Lower Court is as contained in the Statement on oath of the 2nd Appellant Chief Ganiyu Omotayo at pages 119 and 120 of the Record and it is a virtual recast of the averments in the Appellants amended statement of claim. There was no cross examination because the defendant (now Respondent) never entered appearance or participated in the trial of the Lower Court.
From the pleadings and evidence adduced at the Lower Court and as rightly observed by the learned trial judge the Appellants placed reliance on traditional evidence in proof of their title to the land in dispute.
In the evaluation of the evidence before the Lower Court vis a vis the guiding principles for proof of a claim for declaration of title the learned trial judge in his judgment of page 173 and 174 of the Record held thus:-
“The courts have held that, the claimant who claims a declaration of an entitlement to a customary right of occupancy must succeed on the strength of his case and not on the weakness of the defendant’s case.
The plaintiff who relies on grant or original settlement is required to establish such grant or first settlement to the satisfaction of the trial court. He should trace the undisturbed possession of his ancestor to the inheritance to himself – Oluyole v. Olofa (1968) NNLR 462 and Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177 and the case of OKPALA v. OKPU (2003) 5 NWLR (PT 812) 183.
The evidence before the court is that Chief Aafolu and his Elemono migrated from Ife and settled in Ikorodu and the particular portion in dispute was allocated to his brother Elemono and he is the ancestor of the present defendants.
The evidence so far can only come under proving ownership by
1) Traditional evidence
2) Proof of possession of connected or adjacent lands
The evidence on tradition is scanty and there is no tracing of the lineage from the Chief Aafolu to the present claimants and the evidence so far is not cogent or sufficient to substantiate the proof required for traditional evidence. The proof of possession of connected or adjacent lands can best be described as evidence in passing there is nothing before the court to show the lands allegedly owed by the claimants”.
I have careful perused the Appellants pleading and evidence as presented to the trial Court and compared them with the above finding of the learned trial judge. The end result unfortunately, is that I did not notice or observe any relevant piece of evidence left out or not properly appraised by the learned trial judge. The Appellants pleadings is no doubt as scanty as the statement on oath of the only witness presented in proof of their case.
The only evidence before the Court to prove their title to the land by traditional evidence is as contained in paragraphs 4 to 10 of the statement on oath of the claimants witness and they are herein below set out:-
4. That the land in dispute is at No. 13, Ipebi Ikorodu Lagos
5. That the said land originally belonged to Chief Aafolu, our ancestor who died many years ago.
6. That the said Chief Aafolu was the 1st to become the Otugorishen of Ikorodu
7. That Chief Aafolu migrated from Ile Ife with a brother called Elemono whom he allocated the particular portion of the land in dispute and Elemono settled on same.
8. That after the death of Elemono the children inherited the land in question under Yoruba native law and customs.
9. That the children of Elemono continued to exercise various acts of ownership on the whole land of Ipebi, including the land in dispute.
10. That the surrounding houses in the land in dispute belong to the children of Elemono and their successors and family members of Aofolu.
The above evidence which is also a reflection of the Appellants pleading in the lower Court is devoid of any genealogical linkage or nexus between the said Chief Aafolu and the Appellants. It is also lacking in the requirement of various acts of the original settler on the land to justify the manner of acquisition.
It is settled law that in pleading traditional history in a claim for declaration of titles, the plaintiff is expected to narrate the genealogical tree from the original owner, the ancestor, in generations appurtenant to him, down the line to the plaintiff. That is to say, he must prove who founded the land; in what manner the land was founded and the circumstances leading to it. Then the successive persons to whom the land thereafter devolved through or unbroken chain or in such a way that there is no gap which cannot be explained. See ODI Vs IYALA (2004) 8 NWLR (Pt. 875) 283; EWO VS ANI (2004) 3 NWLR (PT. 861) 610 AND OKOKO VS DAKOLO (2006) 14 NWLR (Pt. 100) 401.
In the instant case, apart from the mention of Chief Aafolu as their ancestor who came from Ile Ife with his brother Elemono and settled on the Ipebi land, nothing was said about who inherited the land from their ancestor upon his demise and the consecutive chain of inheritance down to the Appellants. No sufficient evidence was also given on the process through which the land was acquired, whether by conquest, grant, pulling down of a virgin forest e.t.c. Also lacking is the proof of exercise of acts of ownership on the land through one activity or the other down to the Appellants.
A party relying on evidence of traditional History must plead his root of title cogently. Not only that, he must also show in his pleadings who those ancestors were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. See IBIKUNLE VS LAWANI (2007) 3 NWLR (PT 1022) 580; OKOKO Vs DAKOLO (Supra) and ADEBO VS OMISOLA (2005) 2 NWLR (PT. 909) 149. In the instant case I cannot but agree with learned trial judge that the Appellants totally failed to prove title to the land by their evidence.
On the claim for forfeiture of the Respondents customary tenancy on grounds of denial of the overlord title. The learned trial judge in his judgment at page 174 of the Record held thus:-
“The evidence before me is insufficient and not precise or cogent enough to show any customary tenancy between the claimants and the defendants. The evidence is that the ancestors of the claimant and the defendant who were brothers both migrated to Ilkorodu and the land in dispute was occupied by the descendants of Elemono who are the defendants. There is no evidence to show that there was ever a creation of customary tenancy between them.
In the case of BRAID V KALIO (1927) 7 NLR 34 the court held that a clean condition of customary tenancy is the payment of tribute or rent by the tenant to the overlord. See also ONIAH V ONYIA (1989) 1 NWLR (PT. 99) 514.
In the cases cited by counsel there was clear evidence of payment of rent or tribute or relationship of lord and tenant. There is no such evidence in this case.
Furthermore the claimants failed to give evidence tracing them to the property or ancestors”.
Indeed, as found above, the appellants did not lead any evidence in proof of the existence of customary tenancy on the land in dispute. Mere averment in the pleadings that a party is a customary tenant does not suffice, in addition, there must be cogent and convincing evidence on the circumstances leading to the creation of the customary tenancy and some activities in sustenance thereof including payment of token tributes or other acts of allegiance to the customary overlord. In other words a customary tenancy is not created by mere wishful thinking. It goes with some customary obligations and conditions which if the tenant complies with, he is entitled to enjoy his holding in perpetuity be it a farmland or a building plot. See MOHAMMED OJOMU VS. SALAWU AJAO (1983) S.C 22 and LASISI Vs TUBI (1974) 12 SC (REPRINT) 62. The absence of rebuttal or challenge of the evidence of the Appellants in the lower Court cannot justify the court to grant a claim based on incredible or puerile evidence.
The Appellants in the instant case did not provide any evidence to justify their assertion that the Respondent is their customary tenant.
What is more, having found that the Appellants lacks the requisite evidence to prove their claim for declaration of title, the claim for forfeiture of customary tenancy becomes moot-given the fact that there must be a customary overlord before the issue of customary tenancy can arise.
A point was raised in the appellants brief to the effect that the learned trial judge while considering the issue of customary tenancy alluded to the fact that “the ancestor of the claimants and the defendants who were brothers migrated to lkorodu” This according to the appellants is a misrepresentation of the evidence before the court.
Much as I agree that it was nowhere stated in the pleadings and evidence that the appellants ancestors and the defendant are related, I am however strongly convinced that the error did not affect the conclusion reached by the learned trial judge to the effect there is no evidence of customary tenancy.
The Court will not interfere with a decision correctly reached by a trial court even if the reason for the decision is faulty. See ODUKWE Vs. OGUNBIYI (1998) 8 NWLR (PT. 561) 339; JIKANTORO VS. DANTORO (2004) 5 SCM 68 and A.G. LEVENTIS (NIG.) PLC vs AKPU (2007) WRN 1 at 27.
It was also the contention of the appellants in their brief of argument, that the trial court failed to consider the evidence of the decision of the Traditional Council, which found that the respondent has no interest whatsoever in the disputed land.
The relevant evidence on this issue is contained in paragraph 20 to 22 of the statement on oath of the only witness at the trial. It reads thus:
20. That consequent upon the said advice, the dispute was referred to the Traditional Council.
21. That the Traditional Council listened to both parties and found that the Defendant has no interest on the land in dispute.
22. That notwithstanding the Traditional Council verdict, the Defendant still brought in his workmen and started digging foundation to erect a structure on the said land.
The identity of the traditional council was not disclosed neither the constitution of the membership, details of the said arbitration was not given neither was there evidence that the Respondent participated and consented to the outcome of the decision reached. More importantly, no member of the said traditional council was called as a witness to support the appellants assertion and no document reflecting the decision reached by the council was tendered in evidence.
From the foregoing, it can only be agreed that the lower Court was justified in not giving any weight to that piece of evidence which is totally lacking in substance.
It is the duty of the trial judge to evaluate evidence and make primary findings of fact. This duty, unless it is shown not to have been done according to laid down principles of law, an appellate court cannot interfere with such findings. See IRIRI VS ERHURHOBORA (1991) 2 NWLR (PT. 173) 252. Learned counsel for the appellant was also magnanimous enough to refer to a number of authorities on this principle of law some of which are OSUAGWU VS STATE (2009) 1 NWLR (PT. 1123) 529 AT 543; IGADO VS STATE (1999) 14 NWLR (PT. 637) 1, THOMPSON VS. AROWOLO (2003) 17 NWLR (PT. 818) 163; AGBAJE VS. AJIBOLA (2002) 2 NWLR (PT. 750) 127 AND ANYEGWU VS OMUCHE (2009) 3 NWLR (PT. 1129) 659 AT 675 – 676 where this court held inter alia that:-
“The duty of evaluating and appraising evidence belongs to the trial court that saw and heard the witnesses, and an Appellate Court may not disturb a finding or conclusion in a judgment simply because it would have come to a different finding or conclusions on the fact of the case. In other words, an Appellate Court cannot embark on a evaluation of the evidence adduced so as to arrive at different conclusion from the one arrived at by the trial court. Thus unless found to be perverse or where wrong inferences have been raised or drawn from accepted facts or that wrong principles have been applied to facts, the Appellate Court has no business in interfering with the findings of facts of a trial court and substituting them with its own”
In OKONZUA VS AMOSU (1992) 7 SCNJ 243 the Supreme Court held that it is not the function of the Appellate Court to substitute its own view for those of the court of trial particularly where the issue depends on the credibility of witness. See also ARE vs IPAYE (1990) 3 SC (PT 11) 109. Where the Apex Court equally emphasized that it has to be appreciated that the evaluation of evidence and findings of facts are within the province of the trial court, and that an Appellate Court will only interfere if such evaluation and findings are perverse and show a misapprehension of the facts.
The learned trial judge in the instant case properly evaluated the evidence before the court and made proper findings of facts to the extent of concluding that the evidence of the claimants is very weak, not cogent and totally insufficient to succeed on a claim for declaration of title. I am minded to not only agree with the learned trial judge but also to commend him for taking the pains to carefully consider the pleadings and evidence in proof of the appellants claim for declaration of title which ordinarily would have been glossed over in the absence of any defence by the Respondents. His approach accords with the law that the onus of proof in a claim for declaration of title to land is on the appellants to prove their case and in doing so they must rely on the strength of their case and not on the weakness of the defence whose duty is only to defend the action brought against him, which though in this case there was no defence at all, but the onus still remains hanging on the appellants to justify their claim.
On the whole, I find that this appeal lacks merit and it is accordingly dismissed.
The judgment of B. A. Oke-Lawal J delivered on 20th February 2007 is hereby affirmed.
Parties to bear their costs.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft from the judgment, just delivered by my learned brother Oseji, JCA. I am in total agreement with his reasoning and final conclusion. I ought to, be it very briefly say that there are five ways of proving title to, or ownership of land. The law is that the establishment of one of the five ways is sufficient proof of ownership, Ayoola v. Odofin (1984) 11 SC pg. 120, Ewo v. Ani (2004) 17 NSCQR pg. 36, Nkado v. Obiano (1997) 5 NWLR (Pt. 503) pg. 31, Nkwo vs. Iboe (1998) 7 NWLR (Pt. 558) pg. 354.
It is on record that the Defendant/Respondent did not put up a defence in the trial court. However, the law is that a plaintiff wins or loses by the strength of his case. Similarly in a claim for declaration of title to land, the onus is on the plaintiff. The Appellant in this case has to establish his claim upon the strength of his own case and not upon the weakness of the case of the Defendant/Respondent. The Plaintiff must therefore satisfy the court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. See Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) pg. 282; Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) pg.134, Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) pg. 517, Ajiboye vs. Ishola (2006) 13 NWLR Pt. 998 pg. 628.
The Defendant/Respondent did not defend the suit in the High Court; therefore the Plaintiff/Appellant just needed minimal proof. That minimal proof was what was lacking. The learned trial Judge properly appraised and evaluated the evidence place before him. He held rightly that the Plaintiff had not made out a good case that deserved granting him the declaration sought.
For this and the more elaborate reasoning in the lead judgment I too must hold that this appeal is unmeritorious and should fail. I abide by of all the orders therein including that as to costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I had a preview of the judgment delivered by my learned brother Chukwudumebi Oseji JCA.
I agree firmly with the reasoning and conclusion of my lord that this appeal is devoid of any merit and same is also dismissed by me and abide by the consequential orders including the order on costs.
Appearances
Joseph Kulugh with A. HassanFor Appellant
AND
Lekan Ijelu For Respondent
