MR. UWOTA OSAGIEDE v. MR. OKAH UWABOR
(2014)LCN/7050(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of March, 2014
CA/B/148/2011
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
MR. UWOTA OSAGIEDE Appellant(s)
AND
MR. OKAH UWABOR Respondent(s)
RATIO
WHETHER OR NOT A CLAIMANT MUST PROVE THE IDENTITY OF LAND IN AN ACTION FOR DECLARATION OF TITLE TO LAND
The law is trite that in an action for declaration of title to land, the claimant of the relief must prove the identity of the land in dispute with certainty. See AUTA V. IBE NSCQLR 15 (2003) 109. PER LOKULO-SODIPE, J.C.A.
THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND
The law is settled concerning the party that has the burden of proving with certainty the identity of the land in dispute in a case, particularly in a case wherein declaration of title and injunction are being sought. The burden in this regard is always on the party claiming the reliefs, See, GBADAMOSI’s case (supra); and OKONKWO V. OKONKWO NSCQLR 42 (2010) 1291. The position of the law in this regard in my considered view only acknowledges or recognises the fact that it is a plaintiff who brings an action that primarily nominates the issues for determination or decision therein (see LONGE V. FIRST BANK OF NIGERIA PLC (2012) ALL FWLR (PT.525) 258); and the immutable position of the law till date, that the burden is on the party that asserts the existence of a particular thing or situation to prove the same. In other words, he who asserts must prove (see section 131 of the Evidence Act, 2011; and PHILLIPS V. EBA ODAN COMMERCIAL & INDUSTRIAL CO. LTD (2013) 1 NWLR (PT.1336) 618). PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT A PARTY IS RESTRICTED TO THE PRODUCTION OF A SURVEY PLAN OF A PARCEL OF LAND TO PROVE ITS IDENTITY
It is settled law that a party is not restricted to the production of the survey plan of a parcel of land to proof its identity. A party can prove the identity of the land in dispute by oral evidence describing the same with such degree of accuracy in a manner that will guide a surveyor in producing a survey plan of the land or by a better way of proving the identity and extent of the land claimed by filing a survey plan reflecting all the features of the land showing clearly the boundaries. See OGUN V. AKINYELU NSCQLR 20 (2004) 303. PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT A DOCUMENT CAN BE ADMITTED IN THE ABSENCE OF ITS MAKER
The general position of the law is that though a document as a matter of law can be admitted in the absence of its maker but such a document would not be given any probative weight particularly in the absence of any explanation for not calling the maker. See: OMEGA V. OBC LTD NSCQLR 21 (2005) 771. PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 15/3/2011 by the High Court of Edo State holden in the Abudu Judicial Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice G. O. Imadegbelo (hereafter simply referred to as “the learned trial Judge”). In its judgment, the lower court entered judgment in favour of the Plaintiff before it (now Respondent) and also dismissed the counter-claim of the Defendant before it (now Appellant).
The instant case was tried before the lower court on pleadings filed and exchanged by the parties. The Statement of Claim filed in the action by the Respondent is at pages 3 – 5 of the records. The Respondent claimed the land in dispute in the instant case as his own and narrated how he came to own the same. The Respondent further claimed that he had been farming on the land in dispute without any disturbance until the year 2001 when the Appellant first trespassed thereon by putting up a farm on a part thereof. That the trespass later abated until the Appellant renewed same in 2004 and in 2006 with the Appellant claiming that the land in dispute was allotted to him by the Oba of Benin in 1940. Having also catalogued the acts of trespass committed by the Appellant on the land, as well as the acts of possession that his (Respondent) father exercised on the said land in his lifetime, the Respondent claimed the following reliefs against the Appellant –
“a. A declaration that the plaintiff is the bona fide owner and hence entitled to the customary right of occupancy of the land lying and situate at Idumore quarters, Idumuodin, Igbanke, measuring approximately 1,500ft by 700ft.
b. Perpetual Injunction restraining the defendant, his agents and privies from further trespassing into the plaintiffs land by any way whatsoever.
c. The sum of 1 Million Naira being special and general damages resulting from the defendant’s act of trespass on the plaintiffs land.”
The Statement of Defence filed in the action by the Appellant is at pages 16 – 20 of the records. Therein, the Appellant asserted to the effect that he owns and is in possession of the land in dispute which the Oba of Benin on 5/4/1940 allocated and granted his father permit to plant permanent crops thereon. The Appellant equally averred that the Oba of Benin is the traditional trustee of all communal lands in Benin Kingdom including Igbanke. The Appellant claimed that the land allocated to his father was a virgin land or forest and that it was his father that deforested the same. He also claimed to have inherited the land in dispute under customary law from his father. The Appellant asserted that the Respondent is the person who trespassed on the land in dispute. Relying on the facts pleaded in the Statement of Defence and having also pleaded a survey plan No.GE/ED/676/2006 for the purpose of establishing the identity of the land in dispute, the Appellant counter-claimed against the Respondent as follows:-
“(1) A declaration that since the Land Use Act came into force, the Defendant is deemed to be the holder of Customary right of occupancy over the Land in dispute by reason of his continued use and occupation of the land for farming agricultural purposes.
(2) A declaration that the defendant is the person entitled to the appropriate right of occupancy in respect of the land in dispute as shown in the property survey plan GE/ED/676/2006.
(3) AN ORDER of perpetual injunction restraining the plaintiff his servants, agents, workmen, privies and/or any person claiming through or in trust for him from further trespassing and/or interfering in any manner howsoever with the defendants (sic) peaceable enjoyment and/or possession of the land in dispute.
(4) N2,000,000 (Two Million Naira) as special and general damages for trespass upon the Land in dispute with particular reference to the economic crops destroyed thereon.”
The Reply to Statement of Defence and Defence to Counter-Claim filed by the Respondent is on pages 23 -25 of the records. In the process, the Respondent not only denied the case set up by the Appellant in the Statement of Defence and Counter-Claim, but also controverted the same. The Respondent in particular, pleaded how the land in dispute came to be shared to him by the elders of his family.
The Respondent testified in his own behalf and called one other witness. The Appellant only testified in his own behalf. After evaluating the evidence adduced before it and having had the benefit of the written addresses of the parties, the lower court granted the reliefs claimed by the Respondent against the Appellant and also dismissed the counter-claim of the Appellant against the Respondent in its judgment.
Being aggrieved or dissatisfied with the judgment of the lower court granting the reliefs sought by the Respondent, the Appellant lodged the instant appeal by a Notice of Appeal dated 30/5/2011 and filed on the same date. The Notice of Appeal contains nine grounds of appeal.
Parties duly filed and exchanged Briefs of Argument. Appellant’s Brief of Argument is dated 26/4/2012 and filed on 27/4/2012. Appellant’s Reply Brief of Argument is dated 11/6/2012 and filed on 12/6/2012. The aforementioned Briefs of Argument were settled by Elder J. O. Aghimien (SAN); P. I. Oiwoh Esq.; F. O. Oghahenhen (Mrs.); and Emmanuel Asiriuwa. Respondent’s Brief of Argument dated 28/5/2012 and filed on the same date was settled by Monday K. Agienoji, Esq. The appeal was entertained on 16/1/2014. J. O. Aghimien (SAN) learned senior lead counsel for the Appellant and M. K. Agienoji, Esq. learned lead counsel for the Respondent adopted and relied on the Briefs of Argument of their respective clients as hereinbefore identified, in aid of their positions in the appeal.
Five issues were formulated for the determination of the appeal in the Appellant’s Brief of Argument. They read thus: –
“(1) Whether the trial Judge has not erred and misdirected himself in law when in spite of his finding of fact that the Respondent’s evidence of traditional history is inconclusive, he nevertheless gave Judgment of declaration of ownership in Respondent’s favour on the ground of his alleged long possession of the land in dispute? (Distilled from Grounds (i), (v))
(2) Whether the Learned trial judge has not erred and misapplied the principle of law in the case of OBIASO VS. OKOYE (1989) 5 NWLR (PT.119) 80 AT 82 R.4, when he granted a declaration of title to the Respondent, instead of relying on the case of KOJO vs. BONSIE (1957) NWLR 1223 (sic) since both parties pleaded and relied upon conflicting evidence of traditional history in support of their claims. (Distilled from Grounds (iv), (viii)).
(3) Whether or not the leaned trial judge misdirected himself in law and in fact by taking for granted that the identity, dimension and features of the land in dispute are known to both parties whereas the Appellant by his pleadings and evidence in court joined serious issues on the identity and dimension of the land in dispute (Distilled from Grounds (sic) (vi)).
(4) Whether the learned trial judge erred when he held that the requirement of the customary burial rites of the Plaintiff/Respondent’s late fathers (sic) was not an issue for consideration in the determination of the case before it, when under the Bini customary law of inheritance, the performance of burial rites of the deceased Bini man is a pre-condition to the right of any of his children to inherit his property. (Distilled from Grounds (sic) (iii)).
(5) Whether the judgment of the Court is not against the weight of evidence when the Court dismissed the Appellant’s Counter Claim in ‘its entirety’ whereas on the printed record there is overwhelming evidence to justify the reliefs sought by the Appellant in his Counter Claim? (Distilled from Grounds (ii), (vii) and (ix).”
The Issues re-produced above, were expressly adopted by the Respondent in his Brief of Argument. Having read the Briefs of Argument of the parties, I have discovered that arguments/submissions on the Issues reproduced above by and large dovetailed into each other or are intertwined. Accordingly, I consider it more expedient to resolve the appeal upon the following Issues: –
1. Whether there was evidence before the lower court establishing with certainty, the identity, dimension and features of the land in dispute as described by the Respondent?
2. Which method or methods of proving ownership/title to land did the parties rely upon in proving their respective titles to the land in dispute in this case; and whether the method or methods were proved?
3. Can the judgment entered in the case by the lower court stand given the manner in which the reliefs sought by the parties were granted by the lower court?
ISSUE 1 – Whether there was evidence before the lower court establishing with certainty, the identity, dimension and features of the land in dispute as described by the Respondent?
The issue regarding the proof of the identity of the land in dispute was dealt with under the third Issue formulated by the Appellant. Dwelling on the Issue, learned senior counsel dealt with the importance of the proof with certainty of the identity of the land in dispute by a plaintiff in a land dispute for declaration of title and perpetual injunction and cited in aid the case of Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41 at 43. He submitted that the lower court misdirected itself in law when it failed properly to evaluate the evidence of the Appellant on the issue joined with the Respondent on the identity of the land in dispute. Learned senior counsel submitted to the effect that there was need for the Respondent to have filed a litigation or property plan for the purpose of defining the exact area in respect of which he expected an order of injunction and declaration of title. And that the need for a litigation or property plan became more compelling as the Appellant disputed the identity of the area in dispute by pleading and tendering his property survey plan which the lower court ignored and/or refused to make proper use of. The case of Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208, was cited to show when identity of land can be said to be in dispute and also the averment in paragraph 3 of the Appellant’s pleading was referred to. Learned senior counsel not only accused the lower court of granting declaration of title and injunction in favour of the Respondent over an unidentified and unascertainable area of land but also that the orders of the lower court were indeed nebulous and ambiguous without relation to any particular land in the area in dispute. It is the stance of learned senior counsel that the lower court misdirected itself in law and on the facts of this case when it took for granted that the identity, dimension and features of the land in dispute are known to both parties and that this has occasioned serious miscarriage of justice in the case. He submitted that the claim of the Respondent ought to have been dismissed. This Court was urged to resolve this issue in favour of the Appellant.
Dwelling on this Issue, learned counsel for the Respondent contended that the identity and dimension of the land in dispute were never in issue from the state of pleadings or from the evidence led by the Appellant. He stated that the Respondent specifically pleaded facts and duly adduced evidence relating to the identity, features, dimension and boundaries of the land in dispute. That on the other hand, the Appellant did not plead such facts. That he merely relied on the property survey plan which was admitted in evidence as Exhibit “E”. It is the stance of learned counsel that the Appellant did not put the identity and dimension of the land in dispute, in issue having regard to the evidence on the records. That worse still, the property survey plan relied upon by the Appellant lacked probative value because it is devoid of relevant information as to features, dimension and boundary marks. Having made some other observations in respect of the survey plan, learned counsel submitted to the effect that the Court has been left to speculate concerning the survey plan and that it is settled law that courts do not speculate to arrive at their decisions and the case of Agip (Nig.) Ltd v. Agip Petrol Int’l (2010) All FWLR (Pt.520) 1198 at 1249 was cited in aid.
Dwelling on the non-filing of a litigation plan by the Respondent, learned counsel submitted that there was evidence on the printed records that the land in dispute is well known to both parties and that the finding in this regard was rightly made by the lower court. Learned counsel stated the trite position of the law to be that once the identity of the land in dispute is well known to the parties, the court can dispense with survey plan. That in such a situation the land in dispute cannot be described as uncertain and cited in aid the case of Akinterinwa v. Oladunjoye (2000) 12 WRN 171 at 173, amongst others. He further submitted that tendering of a survey plan is not sine qua non or a mandatory condition precedent for the court to grant an order of declaration. That it is sufficient for a claimant of land to give accurate oral description of the dimension, boundaries and identity of the land and the cases of Akpan v. Otongs (1996) 44 LRCN 2169 at 2174; and Owie v. Ighiwi (2005) 3 MJSC 33 were cited in aid. In conclusion learned counsel for the Respondent urged the Court to answer this issue in the negative.
Learned senior counsel further dealt with the issue of the identity of the land in dispute in the Appellant’s Reply Brief. In my considered view the submissions thereon are substantially a rehash of what had been stated in the Appellant’s Brief of Argument. I however note that learned senior counsel submitted to the effect that the testimony of the Respondent relating to the identity and dimension or boundaries of the land in dispute which were not contained in the pleadings went to no issue. That the declaration of ownership and the consequent order of injunction made by the court cannot be enforced because the land to which it relates is not ascertainable or agreed upon by either of the parties.
The law is trite that in an action for declaration of title to land, the claimant of the relief must prove the identity of the land in dispute with certainty. See AUTA V. IBE NSCQLR 15 (2003) 109.
The lower court dealt with the identity of the land in dispute in the instant case at page 126 of the records, This is what the lower court said: –
“As to the issue raised by defence Counsel that the identity of the land, dimension and features on the land has been put in issue, there is need for the Plaintiff to file a litigation survey plan.
The Plaintiff testified that he met the defendant and surveyor on the land in dispute. The Defendant under cross-examination said that the plaintiff was present, he saw the surveyor. He also saw the Plaintiff one Okpamsu trespassing on the land. The above facts shows (sic) that both parties know the land in dispute. The land in dispute can only be the land in respect of which plaintiff claims ownership, damages for trespass and perpetual injunction against the defendant. It is trite law in land cases that where the area of land in dispute is well known to the parties, the question of proof does not agree. In such a situation it cannot be contended that the area claimed or can the land in dispute be described as uncertain. Akinterinwa V Oladunjoye 2000 12 WRN 171 at 173; Etiko V Oroyewon 1959 4 FSC 129; Osho V Ape 1998 6 LRCN 4077.
On necessity of a survey plan. Although the production of survey plan is one of the ways in which evidence can be led to prove the boundaries of a person’s land, it is not a sine qua non to ascertain disputed land. Minister Federal Ministry of Housing v. U. D. Bello 2009 12 NWLR pt.115 pg.345 at pg.366 paras D-E; Owie V. Ighiwi 2005 5 NWLR Pt.917, 184.”
I have earlier stated in this judgment that the instant case was tried on pleadings filed and exchanged by the parties. Implicit in a trial by, or on pleadings, is that the facts upon which the plaintiff or claimant predicates the reliefs which he claims against the defendant must be pleaded in his pleading; just as the facts relied upon by the defendant in resisting the claims of the plaintiff or claimant must be pleaded in his own pleading as well. This is against the backdrop of the settled position of the law that it is the pleadings of the parties that fix and circumscribe the issues that call for resolution in a case because it is therefrom that the issues in respect of which parties are in agreement as well as those in respect of which they are not in agreement are discerned, distilled or made out.
In the instant case the Appellant by setting up a counter-claim against the Respondent not only had to plead the facts he relied upon in resisting the claims of the Respondent but also had to set up facts he relied upon in respect of his case on the counter-claim in his pleading. This is against the backdrop of the position of the law that a counter-claim though tried together with the main action is a separate action that has its own pleading. It is for this reason as well that a plaintiff to the main action and who is the defendant in the counter-claim where he intends to defend the counter-claim to the main action must file his defence to the counter-claim. See DIAMOND BANK PLC V. MONANU [2013] 7 WRN 110 at 122 – 123 and 125.
The Respondent made averments in relation to the land in dispute in some paragraphs of the Statement of Claim. Re-produced hereunder are the averments made by the Respondent in relation to the land in dispute in paragraphs 3 and 7: –
“Paragraph 3
The plaintiff avers that the land in dispute is lying and situate at Idumore Quarters, Idumuodin, Igbanke and of a dimension of 1,500ft by 700ft. The land is bounded in the North by Eken market Road, in the south by the ova Road, Idumore, Idumuodin in the west by the Enogie of Idumuodin’s land and the Eken Market; in the East by late Lawrence Erabor’s vacant plot (now controlled by Mrs. Grace Eweka) as well as Stephen Iyare’s building and late Mr. Imiadeghva Uwota’s building. The said Mr. Imadeghva Uwota is the Plaintiff’s cousin and the land where he built his house was given to him by the plaintiffs father in 1972.
Paragraph 7
The plaintiff avers that in October, 2006, the defendant wrote him a letter through his counsel, claiming that the land in dispute was allotted to him by Oba of Benin in 1940, which is grossly untrue. The defendant also gave him 7 days to pay the sum of 1 Million Naira damages otherwise he would institute an action against him but the letter was ignored; yet the defendant could not institute any action in court as he has threatened because he has no genuine claim to the land. The said letter is hereby pleaded and will be relied upon at the trial of this suit.”
Dwelling on the land in dispute in the Statement of Defence and Counter-Claim the Appellant averred in paragraphs 3, 5, 7, 8, and 13 thus: –
” Paragraph 3
The Defendant avers that he is the owner and in possession of the land in dispute which land the Oba of Benin on 5th April, 1940 as traditional Trustee of all communal lands in Benin kingdom, (including Igbanke) allocated and granted permit to his father Late Uwota Osagiede to plant permanent crops thereon.
Paragraph 5
The Defendant avers that sometime in the year 2006, plaintiff trespassed into the land in dispute and destroyed the Defendant’s permanent/crops thereby causing him great loss. This development prompted the Defendant to write the Plaintiff through his solicitor. A copy of the said letter which was also pleaded by the Plaintiff shall be relied upon at the trial of this suit, save that the permission to plant permanent crops on the land was in fact given to the Defendant’s Late father and not the Defendant himself who was then an infant as was inadvertently stated in the solicitor’s letter.
Paragraph 7
In answer to paragraph 6 of the statement of claim, the Defendant denies the averment that the Plaintiff inherited the land in dispute and states that if the Plaintiff inherited any property at all, he is certainly confused as to the identity of the land he inherited and not the land in dispute.
Paragraph 8
In answer to paragraph 5 of the statement of claim, the Defendant avers that his late father deforested the land in dispute, which was a virgin land or forest before planting permanent economic crops thereon, was allocated to by the Oba of Benin (sic). The said economic crops include Cocoa, rubber and palm trees.
Paragraph 13
With particular reference to paragraph 3 of the statement of claim, the Defendant denies the description of the features and dimension of the land as stated therein. The correct description of the land is as shown and delineated in Defendant’s Property survey Plan No.GE/ED/676/2006 dated 12th Jan. 2007, which the Defendant will tender and rely on upon trial.”
It is in my considered view indisputable from the pleadings of the parties and particularly the averments reproduced above, that parties cannot be said not to know where the land in dispute is situate. What the Appellant would appear to dispute is not the locality or area the Respondent has stated the land in dispute to be, but the features and size of the land in dispute. There is no doubt that where a party to a case questions or challenges the features and size of a land in dispute, the said party has unequivocally put into issue the identity of the land in dispute. See GBADAMOSI V. DAIRO NSCQLR 29 (2007) 137. The stance of the Appellant that the identity of the land in dispute was put in issue in the instant case therefore finds basis in his pleading.
The law is settled concerning the party that has the burden of proving with certainty the identity of the land in dispute in a case, particularly in a case wherein declaration of title and injunction are being sought. The burden in this regard is always on the party claiming the reliefs, See, GBADAMOSI’s case (supra); and OKONKWO V. OKONKWO NSCQLR 42 (2010) 1291. The position of the law in this regard in my considered view only acknowledges or recognises the fact that it is a plaintiff who brings an action that primarily nominates the issues for determination or decision therein (see LONGE V. FIRST BANK OF NIGERIA PLC (2012) ALL FWLR (PT.525) 258); and the immutable position of the law till date, that the burden is on the party that asserts the existence of a particular thing or situation to prove the same. In other words, he who asserts must prove (see section 131 of the Evidence Act, 2011; and PHILLIPS V. EBA ODAN COMMERCIAL & INDUSTRIAL CO. LTD (2013) 1 NWLR (PT.1336) 618).
Having regard to the printed records, the Respondent undoubtedly adduced evidence regarding the land in dispute as pleaded in the statement of claim. No suggestion was made to the Respondent under cross-examination that the boundaries of the land in dispute as testified to by him are non-existent. Ditto for PW2. Neither did the cross-examination of the Respondent show that he was in any doubt as to the boundaries and dimension of the land in dispute.
The Appellant never gave a description of the land in dispute as conceived or known to him in his pleading. He relied on the survey plan of the land in the proof of its identity. The survey plan tendered by the Appellant was admitted as Exhibit “E”. Under cross-examination answers were elicited from the Appellant to the effect that the Respondent was present when he (Appellant) showed the surveyor the boundaries of his land but that he cannot tell the boundaries of the said land. He also stated to the effect that he could not answer if the survey plan of the land he tendered formed part of the land in dispute.
That he did not take any measurement of the land in dispute and does not know if the land which the Respondent is claiming is bigger than his own land. That the Respondent has no land at all there. (see page 40 of the records).
The survey plan tendered by the Appellant – Exhibit “E” contains no named boundary. The Exhibit even has no key or explanatory list of the symbols or abbreviations used on a map or diagram. The maker of the Exhibit was not called as a witness. The general position of the law is that though a document as a matter of law can be admitted in the absence of its maker but such a document would not be given any probative weight particularly in the absence of any explanation for not calling the maker. See: OMEGA V. OBC LTD NSCQLR 21 (2005) 771. I am aware that it is not necessary to call as a witness the surveyor who made a survey plan in a case where the identity of the land is not in dispute. However, the Appellant having regard to his pleading and as submitted by learned senior counsel joined issue with the Respondent regarding the identity of the land in dispute in the instant case. It would therefore appear that since this was not a situation where the Appellant accepted the land in dispute as described by the Respondent, there was every need for the maker of the document admitted as Exhibit “E” to have been called to answer questions on it to enable the lower court determine the probative value to attach to the document.
It is settled law that a party is not restricted to the production of the survey plan of a parcel of land to proof its identity. A party can prove the identity of the land in dispute by oral evidence describing the same with such degree of accuracy in a manner that will guide a surveyor in producing a survey plan of the land or by a better way of proving the identity and extent of the land claimed by filing a survey plan reflecting all the features of the land showing clearly the boundaries. See OGUN V. AKINYELU NSCQLR 20 (2004) 303. The lower court therefore stated the law correctly when it said in its judgment to the effect that the production of a survey plan is not a sine qua non to ascertain a disputed land. The lower court in arriving at the conclusion concerning the land in dispute gave a consideration to some aspects of the evidence adduced before it. True it is that the lower court did not show itself as having averted its mind to the pleadings of the parties as it has been done in this judgment. This is clearly the basis for the submissions of learned senior counsel for the Appellant that the said court assumed or took for granted that the identity, dimension and features of the land in dispute are known to both parties. And that as a result of this assumption, the lower court failed to properly evaluate the evidence of the Appellant on the issue he joined with the Respondent on the identity of the land in dispute.
It is however my considered view from all that has been said concerning the evidence adduced by the parties that even though the Appellant put in issue the features and dimension of the land in dispute, the evidence before the lower court was clearly such that went to establish that the Appellant who put in issue the features and dimension of the land in dispute, knew the identity of the land in dispute while he knew next to nothing about the land he depicted the land in dispute to be in Exhibit “E”. This state of affairs is eloquently given credence by the answers elicited from the Appellant under cross-examination. It is clear from the authorities that one of the uses to which cross-examination could be put, is to render improbable (or negative the credit or render doubtful) the evidence of the witness being cross-examined. See OFFORLETTE V. STATE NSCQLR 3 (2000) 243; and MEZU V. CO. OPERATIVE & COMMERCE BANK NIGERIA) PLC NSCQR 52 (2012) 68. It is my considered view that the cross-examination of the Appellant concerning the land in dispute as depicted in Exhibit “E” clearly showed that he simply introduced the issue of the land in dispute as having different features and dimension for no useful purpose inasmuch as no scintilla of evidence was furnished by him in aid of the fact he put in issue. Indeed, I am of the considered view that the very fact that the Appellant made a counter-claim to the ownership of the land in dispute as claimed by the Respondent is a clear indication that he knew the land in dispute as described by the Respondent. This is particularly so as it is in my considered view antithetical in purpose for the Appellant to counter-claim against the Respondent for a land that is not in dispute between him and the Respondent or part thereof, in the action brought by the Respondent.
From all that has been said, I therefore not only find the lower court to have been right when it held that the land in dispute is known to the parties but in any event I also find the Respondent to have established the identity of the land in dispute with sufficient certainty having regard to the failure of the Appellant in successfully controverting the evidence the Respondent adduced in relation to the same on the printed records. Appellant’s issue 3 which relates to the identity of the land in dispute is accordingly resolved against him.
ISSUE 2 – Which method or methods of proving ownership/title to land did the parties rely upon in proving their respective titles to the land in dispute in this case: and whether the method or methods were proved?
The above Issue in my considered view sufficiently covers Issues 1, 2, 4 and 5 formulated by the Appellant.
Dwelling on how the Respondent acquired the land in dispute, learned senior counsel for the Appellant submitted to the effect that the Respondent at the trial sought to rely on evidence of traditional history to show how he acquired the land in dispute. That it was therefore not only incumbent on the Respondent to prove his root of title through his ancestors but also to plead how his ancestor(s) came to own and possess the land in dispute which eventually passed on to him, in an unbroken chain and the case of Alechenu v. Oshoke (2002) 9 NWLR (Pt.773) 523 was cited in aid. It is the stance of learned senior counsel that the Respondent did not trace his root of title to the Oba of Benin or produce any document of title evidencing ownership of the land in dispute. That the Respondent did not also produce any document of “resharing” of the land in dispute between him and his brother John even though the “resharing” was allegedly done as recently as 1988. Learned senior counsel submitted that deforestation without any reference to a grant or Oba’s permit for exclusive use to an individual in respect thereof by the Oba of Benin is not known, acceptable and/or recognized as a Benin customary mode of acquisition of communal land in Benin.
Learned senior counsel stated that on the other hand, the Appellant pleaded copious facts and led evidence to show that he inherited the land upon the death of his father after he had performed the customary burial rites in respect thereof. He further stated that the land in dispute which devolved upon the Appellant was obtained by his late father vide a written customary permit/grant – Exhibit ‘D’ for the exclusive use of the land in dispute for the purpose of planting permanent economic crops thereon. That the said permit as well as a property survey plan – Exhibit ‘E’ showing the features and dimension of the land in dispute as claimed by the Appellant in his counter-claim were placed before the lower court. Learned senior counsel stated that the lower court found as a fact that the traditional history of acquisition of the land in dispute as presented by the Respondent was inconclusive or insufficient because the Respondent did not prove facts pertaining to the alleged ownership of the land in dispute to warrant a declaration of title in the Respondent’s favour. Stating that the lower court in other words held that the Respondent failed to trace or prove how his grandfather as his predecessor in title customarily acquired the land in dispute, learned senior counsel submitted that this should have put paid to the Respondent’s claim to the ownership of the land in dispute in line with the authority of Alechenu v. Oshioke (supra) and that the Respondent’s evidence of traditional history and his claims therefore without further ado went to no issue for the consideration of the ownership of the land in dispute.
It is also the submission of learned senior counsel that in the light of the finding of the lower court, there was only one version of traditional history that subsisted, and the lower court ought to have given judgment in favour of the Appellant and the case of “Kolapo v. Alade (1985) 3 NWLR 352 at 254” (sic) was cited in aid. Learned senior counsel accused the lower court of giving judgment in favour of the Respondent on an inconsistent alternative ground of alleged “long possession” of the land in dispute. He submitted to the effect that the lower court was wrong in this regard as acts that will be considered as acts of possession must first and foremost be predicated on a valid title. That having initially found that the Respondent failed to establish and trace his root of ownership to a valid customary grant/permit from the Oba of Benin, the lower court could not have relied on long possession and the case of Nwokidi v. Okan (2010) 183 LRCN 114 at 126, amongst others was cited in aid. It is the stance of learned senior counsel that in the circumstances, the finding of the lower court that the Respondent had shown that the land in dispute devolved upon him by inheritance is perverse and has occasioned a serious miscarriage of justice in this case.
Learned senior counsel further dealt at length on communal ownership of all land in Benin kingdom under the trusteeship of the Oba of Benin, which he said was a common ground as the land in dispute forms part of Benin Communal land. It is his stance that under Bini customary tenure for land acquisition, the Oba of Benin is the traditional sole trustee of all communal land within Bini Kingdom (which includes Igbanke) and any person/grantee claiming exclusive use or ownership of any part of such communal land must trace his own root of title or that of the predecessor(s)-in-title through whom he claims, to the Oba of Benin and the case of Arase v. Arase (1985) SC 33 at 58 was cited in aid. And that such transfer which can only be way of grant or permit should and can be evidenced by the issuance of an Oba’s grant to the grantee and the case of Aburime v. Ogbeide (1988) NWLR (pt. 73) 695 was cited in aid. Therefore that the evidence of mere deforestation led by the Respondent by itself without any recourse to the Oba’s permit or grant by the Oba of Benin, is not valid hence the lower court held the same to be inconclusive and the case of Omoregie v. Idugiemwanye (supra) was cited in aid. It is the stance of learned senior counsel that on the other hand, the Appellant traced his root of title to an Oba’s permit – Exhibit ‘D’ issued to his late father for the exclusive use of the land in dispute to plant economic crops thereon and by extension and necessary implication, for the exclusive use of the land in dispute which formed part of the communal land at Igbanke which forms part of Benin Kingdom. That in the circumstances, the lower court erred and misapplied the principle of law in the case of Obiaso v. Okoye when it resorted to imaginary acts of ownership by the Respondent allegedly over a sufficient length of time. Also that it is trite law under both the English and customary mode of land acquisition, that possession of a disputed land, no matter for how long, can neither ripen into ownership nor confer title on any claimant and the case of Oseni v. Bajulu (2010) 178 LRCN 26 at 32 was cited in aid. Learned senior counsel submitted that the documentary evidence proffered by the Appellant was the best evidence which the lower court ought to have properly evaluated and relied upon to give judgment in favour of the Appellant.
Though not conceding the point, learned senior counsel submitted that even if the inconclusive evidence of traditional history led by the Respondent was believed, the correct course open to the lower court was to have resorted to facts in recent years within living memory as established by evidence and enunciated in Kojo v. Bonsie (1957) WLR 1223 and affirmed by the Supreme Court in the case of Elegushi v. Oseni (2006) 133 LRCN 263 at 270. The lower court was accused of having misdirected itself when it relied on the unproved acts of the Respondent’s grandfather ownership of the land as well as the evidence of PW2. It is also the stance of learned senior counsel that the Respondent’s testimony that the Appellant was farming on the land in dispute as recently as 2001 and Exhibit “E” support the Appellant’s recent acts of possession in line with the principle laid down in Kojo v. Bonsie (supra). Learned senior counsel submitted that if the lower court had rightly applied the aforesaid principles, the decision and judgment in the case would have been different. Indeed, that it would have been in favour of the Appellant. This Court was urged to correct the apparent miscarriage of justice committed by the lower court and hold that the Appellant’s acts of possession on the land are most recent and probable to be believed and accepted.
Learned senior counsel also submitted that it was obvious from the records that the evidence adduced by the Respondent was challenged. That the finding made by the lower court to the effect that the evidence adduced by the Respondent in the proof of his case was unchallenged by the Appellant is therefore perverse warranting the intervention of this Court by setting aside the judgment based on such wrong reasoning or conclusion.
On the issue concerning the customary burial of the late fathers of both the Respondent and Appellant, learned senior counsel stated to the effect that from the evidence and pleadings of the parties they are in agreement that the Oba of Benin is the customary trustee of all land in Benin including land in Igbanke where the land in dispute is situate. He submitted that where a plaintiff hinges his case on evidence of tradition as the Respondent sought to have done, such evidence must be proved in accordance with the custom of the land; more so when the Appellant astutely challenged the title pleaded by the Respondent and the case of Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177 at 187 was cited in aid. In the premises, learned senior counsel submitted that the performance of the final burial ceremony of an Igbanke or Bini man is a condition precedent to inheriting his property and where same is not carried out by a child of the deceased, there cannot be said to be valid devolution of the deceased’s property and/or inheritance thereof upon/by such a child. He submitted that the lower court erred in law when it held that the requirement of the performance of the customary burial rites of the Respondent’s late father was not an issue for determination in the case. Learned senior counsel stated that this was not only misdirection but a clear departure from the trite principle of customary law under the Bini native law and custom as applicable in Igbanke. That the Respondent did not lead any evidence before the lower court regarding the role either he or his brother performed in the burial of their late father to entitle them to inherit the deceased’s property i.e. the land in dispute which is a sine qua non to the right of inheritance of the land in dispute. Learned senior counsel stated that this legal issue was canvassed before the lower court through his counsel in the final address, but the lower court failed to consider same as it held that it was not an issue before the court and the case of Obaro v. Probate Registrar (2002) 6 NWLR (Pt.762) 56 was cited in aid of the submission to the effect that the lower court ought to have considered and ruled on the serious submission of the Appellant on the Respondent’s right to inherit the land in dispute before holding that the same devolved on him by inheritance. That a court of law is duty bound to consider the submission of counsel no matter how trivial or irrelevant and the case of Odunkwe v. Ofomata (2011) 197 LRCN 186 was cited in aid.
It is the stance of learned senior counsel that instead of doing the needful, the lower court misdirected itself on the novel issue of failure to plant “Ikhinmwin” trees introduced into the case by the Respondent’s counsel in his final address. Learned senior counsel then proceeded to catalogue the manner in which the lower court misdirected itself on the issue of the planting of an Ikhinmwin tree.
Dwelling on the dismissal of the Appellant’s counter-claim in its entirety by the lower court, learned senior counsel argued in the main that in the light of the evidence on the printed records the Appellant made out a better case of declaration to title. That if the lower court had properly evaluated the evidence before it, and given the documentary evidence tendered by the Appellant primacy, the counter-claim ought not to have been dismissed.
Learned counsel for the Respondent in dwelling on the findings of the lower court that were attacked by the Appellant, submitted that the records did not bear out the contention of the Appellant to the effect that the evidence of tradition adduced by the Respondent was inconclusive. It is the stance of learned counsel that the Respondent premised his root of title on traditional evidence and acts of ownership and that the contention of the Appellant that the Respondent evidence of tradition was inconclusive is an unveiled attempt to construe the findings of the lower court out of con. Learned counsel for the Respondent made the point that there are five methods for proving title to land and the cases of Oyadare v. Keji (supra); and Idundun v. Okumagba (2002) 20 WRN 127 at 129, amongst others were cited in aid. That a party can rely on any of the methods in proving his title to land and also that a party reserves the right to rely on more than one root of title in proof of his claim to land, as it would only make assurance doubly sure and the case of Egbo v. Agbara (1997) 1 NWLR (Pt.481) 293 at 319 was cited in aid. Learned counsel submitted to the effect that upon the evidence adduced before the lower court, the Respondent duly established the roots of title he pleaded. Indeed that the admission by the Appellant under cross-examination that the Respondent’s father actually owned the land in dispute constituted an admission against the Appellant’s interest which the Respondent could ably and lawfully rely on and the cases of Owie v. Ighiwi (supra); and Anka v. Lokoja (2001) 16 WRN 111 at 121 were cited in aid.
Learned counsel for the Respondent also submitted to the effect that the evidence the Respondent adduced regarding farming activities on the land in dispute by him and PW2, actually constitutes one of the five established ways of proving title to land, made more poignantly so after the Appellant had conceded that the Respondent sold land to boundary men and the case of Ekpo v. Ita 11 NLR. 68 at 244, was cited in aid. It was further submitted that if the Respondent indeed sold land to the boundary men adjacent to the land in dispute, this raises the presumption under Section 35 of the Evidence Act, 2011 that the Respondent is the owner of the land in dispute. That it also establishes the irrefutable and irresistible fact that the Appellant actually trespassed or encroached on the land in dispute which was in possession of the Respondent. It is the stance of learned counsel that the tower court was right in its finding that the Respondent proved acts of ownership of farming on the land in dispute and that in the light of the finding the arguments by the Appellant that the lower court ought to have had recourse to the rule in Kojo v. Bonsie (supra) did not arise from the records. Furthermore, that the authority of Oyadare v. Keji (supra) relied upon by the Appellant is non sequitur and irrelevant to the instant case because in that case the lower court jettisoned and rejected the traditional evidence presented by both parties – a situation diametrically opposed to the case at hand. That in the instant case the lower court believed and accepted the evidence of traditional history painstakingly adduced by the Respondent in the proof of his case.
In relation to the submission that Respondent did not trace his root of title to Oba’s permit and the contention that the said court ought to have preferred Exhibit “D”, a document titled Oba’s permit, tendered by the Appellant as his root of title, learned counsel submitted that there was no written permit or grant of land under Bini native law and custom as at 1940, That Exhibit “D”, the so called Oba’s permit is unknown to Benin customary law on acquisition of land, That the written form of grant, notoriously known as Oba’s Approval, was introduced by Oba Akenzua II in 1961. That this is a settled norm and rule of Bini native law and custom as far as disposition and acquisition of land is concerned; and there is a stipulated procedure a prospective grantee must follow to obtain a grant from the Oba and the case of Okeaya v. Aguebor (1970) All NLR 9 was cited in this regard. Learned counsel contended that as at 1930 when the Respondent’s father deforested the land in dispute, the method in vogue was not that of written grant but physical allocation by the Odionwere of the locality or community, and this was symbolized by the planting of “Ikhinwin” (sic) tree and the case of Uwadiae v. Aburime (1996) 44 LRCN 2419 at 2435 was cited in aid. Learned counsel submitted that these two cases have irrevocably nullified Exhibit “D” tendered by the Appellant as his root of title. That it is a document unknown to Bini native law and custom as at 1940. Aside from this, learned counsel made other observations pertaining Exhibits “D” and “E” and submitted to the effect that Exhibit “E” is not a document on which the Appellant could found his ownership of the land in dispute and the case of Ojibah v. Ojibah (1991) 5 NWLR (Pt.191) 96 at 301 was cited in aid, While conceding that the Respondent did not specifically plead facts or lead evidence relating to the customary grant to his grandfather in 1930 before or after deforesting, learned counsel said the Respondent however testified under cross-examination that before his father deforested in 1930, the land was a communal land. He stated that as it is trite law that land in Benin belong to the community and the Oba holds it in trust for the people, there was a strong and compelling presumption that the Respondent’s grandfather complied with the condition precedent or must have had the land in dispute allocated to him by the Odionwere of Idumore, Idumodin, where the land is situate, before he deforested the same in 1930. It is his stance that the presumption finds support in Exhibit ‘C’, which is a document that emanated from the palace of the Enogie of Idumore, Idumodin, That Exhibit ‘C’ having not been challenged by the Appellant when it was tendered, this Court ought to rely on it for the determination of this appeal. Learned counsel then went on to argue that the said Exhibit “C” was wrongly expunged from the records by the lower court on ground that it was made by an interested party when proceedings were pending and thereby offends Section 91(3) of the repealed Evidence Act. That the lower court misdirected itself and misapplied the law, as far as the definition of an “interested party” is concerned. While conceding that the said Exhibit ‘C’ was made when proceedings were pending, it is however the stance of learned counsel that the lower court did not state why it adjudged the Enogie of Idumore, Idumodin (the maker of Exhibit “C”) an interested party or explain how he became an interested party, That the decision of the lower court is at variance with that of the Supreme Court regarding the meaning of “interested party”. This Court was urged to set aside the decision of the lower court rejecting Exhibit “C” in evidence.
Learned counsel further catalogued some other acts on presumption or inference that the Respondent’s grandfather had oral approval when he deforested the land in dispute in 1930 and also placed reliance on Sections 168(3) and 167(e) of the Evidence Act 2011, and the equitable maxim that equity takes as done that which ought to have been done in relation to the presumption or inference in favour of the Respondent’s ownership of the land in dispute. This Court was urged to uphold the decision of the lower court dismissing the Appellant’s counter-claim and granting the Respondent’s claim to the disputed land.
In respect of the performance of customary burial rites, for the late fathers of the Respondent and the Appellant, learned counsel submitted that this was not an issue for determination before the lower court and that the conclusion of the court on the issue is unassailable. That, parties did not join issue on the point and none of the reliefs sought by the parties in the instant case specifically alluded to it. Though conceding that it is a settled norm of Bini customary law that the performance of the burial rites of a deceased Bini man by the children particularly the eldest surviving male child is precondition to the right of inheritance, learned counsel reiterated the fact that no issue was joined on this point. In any event, learned counsel submitted that neither party has the locus standi to challenge the other when the main relief before the lower court is that of declaration of title. Learned counsel proceeded to state to the effect that under Bini native law and custom when a Bini man dies, an “Okaegbe” is appointed from amongst the kinsmen of the deceased to preside over the burial rites of the deceased in conjunction with the children of the deceased. That it is after the performance of all the burial rites that the “Okaegbe” also presides over the sharing of the properties of the deceased subject to the condition that the “Igiogbe”, the house where the deceased lived, died and was buried, can only be inherited by the eldest surviving son of the deceased. Therefore, that when the Respondent testified that the Iyotor family elders shared his father’s estate in 1988, it is with the understanding that at the time of sharing all the requisite burial rites had been duly performed. That the Appellant did not cross-examine the Respondent on this point and this made the evidence in that regard to be unchallenged. What is more, the Appellant admitted the act of sharing of the estate of the Respondent’s father amongst his off-springs including the Respondent. Citing the case of Arase v. Arase (1981) 5 SC 33 at 62, learned counsel submitted to the effect that the question as to whether a person performed the burial rites of his deceased father to confer right of inheritance can only be legitimately raised by a member of the family or any of the children of the deceased and not a stranger and that the case of Lawal v. Lawal (1995) 9 NWLR (Pt. 419) 259 aptly exemplified the point. And that the case of Obaro v. Probate Registrar (supra) cited by the Appellant supports the Respondent’s submission because it was a case in which the plaintiff, an off-spring of the deceased, sued some other children of the deceased over inheritance rights. Against the backdrop of his submissions, learned counsel for the Respondent urged this Court to resolve this Issue against the Appellant and uphold the finding of the lower court.
Dwelling on the dismissal of the Appellant’s counter-claim in its entirety by the lower court, learned counsel for the Respondent in the main submitted that in the light of the evidence on the printed records the lower court was clearly right in dismissing the same. That the lower court sufficiently and completely evaluated the evidence before it and made correct findings of fact which culminated in its decision. He urged this Court to resolve the issue in the negative.
In the Appellant’s Reply Brief, learned senior counsel in my considered view again engaged substantially in the re-argument of the issues relating to the failure of the Respondent to prove his root of title and the consequences of this as well as other issues considered hereinbefore. It is however to be noted that dwelling on Exhibit “D”, learned senior counsel submitted that the same having been admitted in evidence without objection, it was too late in the day to now challenge its authenticity. That the reasoning of the lower court that Exhibit ‘D’, could not confer title on the Appellant is to say the least misconceived and erroneous. Dwelling on the submissions of the Respondent in relation to Exhibit “C” which was expunged by the lower court, learned senior counsel in effect submitted that this Court cannot overturn what the lower court had done in the absence of a cross appeal and/or a Notice of intention to contend, because the Respondent is to support the judgment of the lower court. That where a respondent intends to contend in an appeal that the said judgment be affirmed on grounds other than those relied upon by the lower court, he must either file a cross appeal or file a Notice of intention to contend, and to thereafter argue same before this Court.
Judgment in the instant action was entered in favour of the Respondent upon the evidence before the lower court and which the court considered to be properly admissible evidence. On pages 126 – 127 of the records the lower court gave consideration to propriety of the admission in evidence in the course of the trial, of Exhibits “B” and “C” and concluded that the documents (Exhibits) are inadmissible. The lower court therefore did not utilise the Exhibits for any purpose in the judgment. Learned counsel for the Respondent has attacked the correctness of the finding of the lower court in its judgment in relation to the said Exhibits “B” and “C”; to wit that they are inadmissible in evidence by virtue of Section 91(3) of the Evidence Act, Learned counsel for the Respondent has not only urged this Court to act on the said Exhibits but has also argued that the lower court misdirected itself and misapplied the law as far as the definition of “interested party” is concerned in finding the said Exhibits to be inadmissible.
A court of law is enjoined or obligated to decide or determine matters upon pieces of evidence which are properly admitted. Similarly, an appellate court owes the administration of justice the duty to ensure that the decision appealed against is predicated on admissible evidence on the records from which the decision of the court must necessarily arise. See OKWARANONOBI V. MBADUGHA (2013) 17 NWLR (Pt. 1383) 255. Evidence can be oral or documentary.
Law reports are replete with decided cases that state the role of a respondent in an appeal. It is to defend the judgment of the lower court. This is however not to say that a respondent cannot be dissatisfied with an aspect or aspects of the decision of a lower court even though the decision is in his favour, as it were. This is particularly so if the proper resolution of the aspect or aspects of decision in question, will not result in the setting aside or upturning of the lower court’s decision judgment. Where this is the situation, it behooves such a respondent to appeal against the aspect or aspects of the decision of the lower court he is uncomfortable with or has a grouse with. See the case of LAFIA LOCAL GOVERNMENT V. THE EXECUTIVE GOVERNMENT OF NASARAWA STATE (2013) ALL FWLR (Pt.668) 956 at 981.The lower court in the instant case is a superior court of record. The only constitutional means available for the correction of any error (in contradistinction to “a slip”) committed by a court such as the lower court after it has delivered its judgment in a matter and has thereby become functus officio, is by way of appeal. It is therefore obvious that it is an incongruity for the Respondent herein, whose traditional role is to support the judgment of the lower court, to challenge the admission of evidence of any kind by the lower court and upon which the said court acted and/or did not act in the very judgment the Respondent is enjoined or deemed to be defending or supporting.
In the instant case, it is my considered view that a Notice of intention to vary the decision of the lower court would achieve no useful purpose. A Notice of intention to vary the decision of the lower court must by its very nature assume or accept the propriety of the material being relied upon in seeking for the variation of the decision of the court in question. The Respondent clearly does not accept the correctness of the finding of the lower court regarding Exhibits “B” and “C” that he wants this Court to rely upon in the instant appeal. Inasmuch as the correctness of the finding of the lower court is not the subject of any of the Appellant’s grounds of appeal and a fortiori any of the Issues formulated for the determination of the appeal, it follows that before the Respondent can have this Court to countenance the said Exhibits for the purposes of the instant appeal, he needed to have appealed against the finding of the lower court in question and to have succeeded in having this Court overturn the said finding. The finding of the lower court in respect of Exhibits “B” and “C” having not been challenged at all by the proper procedure, talk less of having been successfully challenged, therefore remains correct and this Court therefore cannot properly use Exhibits “B” and “C” which the lower court has specifically found to be inadmissible for any purpose in the resolution of the instant appeal.
I now proceed to the resolution of the issues under consideration upon the evidence on which the lower court acted. I have earlier stated to the effect that implicit in trial of a case on pleadings filed and exchanged by the parties is that the facts upon which the parties are in agreement as well as those in respect of which they are not in agreement are to be distilled therefrom. Hence parties are not only bound by the case they set up in their respective pleadings, but also that they are to adduce evidence in respect of the facts pleaded in relation to their respective cases only, as evidence adduced in relation to facts which are not pleaded goes to no-issue and is inadmissible. And where such evidence that goes to no-issue is admitted, same is liable to be struck out or discountenanced by the court. In the same vein, it is a settled position of the law that where a party does not adduce evidence in respect of facts pleaded by him, such facts are deemed abandoned as a party’s pleading by itself or standing alone, does not constitute evidence. See: OLUSANYA V. OSINLEYE (2013) ALL FWLR (Pt.683); ITA V. DAZIE (2013) ALL FWLR (PT.683) 1880; and AGBOOLA V. UBA PLC (2011) 45 NSCQR 335 at 358.
It is very clear from the pleading of the Respondent that he does not claim to be the original owner of the land in dispute. Having averred in paragraph 3 of the Statement of Claim to the effect that the land in dispute is situate at Idumore Quarters, Idumuodin, Igbanke, the Respondent proceeded to dwell in paragraphs 5, 6 and 8 thereof on how he came to own the land in dispute. The averments in the said paragraphs read thus: –
Paragraph 5
The plaintiff states that the means of acquiring land in Idumore Quarters, Idumuodin, Igbanke, is by family inheritance through deforestation, as the land in dispute was amongst the parcel of land deforested by his late grand father (sic), Pa Iyotor, as far back as 1930 or thereabout, according to the Uwabor family tradition or history.
Paragraph 6
When his grandfather (sic) died in 1959, the land in dispute was inherited by his father, Mr. Uwabor who farmed thereon until his demise. His father took possession of the land and planted thereon rubber trees, palm trees, mango trees and other economic crops.
Paragraph 8
The plaintiff avers that the land in dispute was shared to him by the Iyotor family elders who jointly shared his father’s estate, and in 1988, when his mother left Idumudin for Igbontor, he started farming on the land.”
In the light of the averments in the Statement of Claim re-produced above, it is in my considered view incontestable that the only mode by which the Respondent who never claimed to be the original owner of the land in dispute, acquired title to the same is by inheritance. That is “family inheritance through deforestation according to Uwabor family tradition or history”. The Respondent clearly never claimed to have inherited the land in dispute under Benin native law and custom.
There is need to appreciate that the case of Idundun (supra) sets out the methods or means of proving ownership to land. The case does not set out the means by which title to land can be acquired. The Supreme Court made this much clear in the case of AJIBOYE V. ISHOLA [2006] All FWLR (Pt.331) 1209 at pages 1229 – 1230 whereat Onnoghen, JSC; stated thus: –
“It has been settled by long line of authorities from this court, that ownership to title to land may be proved by any of these five methods, viz:
(a) By traditional evidence;
(b) By production of documents of title, which are duly authenticated;
(c) By acts of selling, leasing, renting out all or part of the land, or farming on it, or portion of it;
(d) By acts of long possession and enjoyment of the land; and
(e) 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 in dispute; see Idundun v. Okumagba (1976) 9-10 SC 227; Nkado v. Obiano (1997) 5 NWLR (Pt.503) 31; section 46 of Evidence Act, 1990.
It must however be noted that the above five methods deal with the means by which title to land can be proved in a court of law. The said methods have nothing to do with the mode of acquisition of title to land which may be by:
(a) First settlement on the land and deforestation of the virgin land;
(b) Conquest during tribal wars;
(c) Gift;
(d) Grant-customary;
(e) Sale;
(f) Inheritance, etc, etc.”
See also the case of ADESANYA V. ADERONMU [2000] FWLR (Pt.15) 2493 wherein the Supreme Court held amongst others to the effect that in a claim for declaration of title to land, the court must be satisfied as to (i) the precise nature of title claimed i.e. whether it is title by original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise; and (ii) evidence establishing the nature of title claimed.
The land in Idumore Quarters by the Respondent’s showing clearly does not belong to the Respondent’s grandfather. It is communal land. The Respondent in the knowledge that he cannot inherit what is not proved to have been owned by his father pleaded how his father came to own the land in dispute. Indeed, the position of the law is that where title to land is said to have been derived through grant or inheritance, the pleading must aver facts relating to the founding of the land in dispute, the person who founded it and exercised original acts of possession thereon and the persons on whom title in respect of the land had devolved since the first founding. See IROAGBARA V. UFOMADU (2009) 11 NWLR (Pt. 1153) 587. It would appear that it is in compliance with this position of the law that the Respondent elected to plead what amounts to traditional history or evidence of tradition in respect of the land in dispute which he claimed was deforested in 1930 or thereabout. It is also clear from the pleading of the Respondent that all acts of possession his grandfather (who deforested the land in dispute) exercised on the land in dispute were subsequent to the deforestation. Ditto the Respondent’s father and the Respondent too. Against the backdrop of these, it is my considered view that learned counsel for the Respondent would appear not to properly appreciate the case of the Respondent, to have argued that the Respondent relied on traditional history/evidence of tradition in establishing his title to the land in dispute. By the Respondent’s pleading which binds him, he relied on traditional history/evidence of tradition in the proof of the ownership of the land in dispute by his grandfather and inheritance of the same from his own father who in turn first inherited the same from his own father (i.e. Respondent’s grandfather). I have before now stated that the position of the law is that it is the plaintiff who initiated an action that nominates the issues that call for determination or decision therein. It is therefore clear that the issues which the Respondent nominated for the determination of the lower court in his own action are: (i) proof of the ownership of the land in dispute by his grandfather by evidence of tradition/traditional history; and (ii) inheritance of the land in dispute by him in accordance with the custom and tradition which he pleaded.
Now, the law is settled as to what a party relying on traditional history/evidence of tradition to establish ownership of land or who has elected to rely on that mode must plead and prove. Amongst many others see the case of EWO v. ANI (2004) 1 S.C. PART II page 115 at 121; and that of ELEGUSHI V. OSENI [2005] ALL FWLR (PT.282) 1837 at 1852, whereat the Supreme Court per Onu, JSC; stated thus: –
To establish traditional evidence of title by conclusive evidence, the plaintiff must plead and prove such facts as:-
(a) Who founded the land in dispute,
(b) How they founded the land, and
(c) The particulars of the intervening owners through whom they claim.
See the cases of Nkado v. Obiano (1997) 1 NWLR (Pt.482) 374 SC; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1; Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386; Piaro v. Tenalo (1976) 12 SC 31 and Mogaji v. Cadbury (supra)”
The Appellant clearly disputed the pleaded root of title of the Respondent in his pleading. It was therefore incumbent on the Respondent to have also pleaded and given evidence as to how the communal land part of which his grandfather deforested came to be founded and how it was founded.
On page 125 of the records, the lower court clearly disclosed that it appreciated the position of the law regarding the various means of acquisition of title to land. The lower court on the same page showed that it appreciated that the traditional history or evidence of tradition in respect of the land in dispute (which the Appellant alleged that the Respondent did not plead) needed to be proved in the instant case. On page 128 of the records the lower court further stated to the effect that the Respondent’s case on the ownership of the land in dispute is hinged on evidence of tradition and acts of ownership. It was against the backdrop of what the lower court found the Respondent to have hinged his case upon that the said court stated thus:-
“The plaintiff did not prove facts relating to the customary grant to his grandfather. Where the evidence of traditional history is inconclusive, the case must rest on a question of fact, in which circumstance the Plaintiff must prove acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that he is the exclusive owner.
The Plaintiff proved that his late grandfather deforested the land, which devolved upon him by inheritance the evidence of PW2 buttress the fact that plaintiff inherited the land from his father and he is the owner of the land. Where evidence of traditional history is led and is not contradicted, and is found to be cogent, it can support a claim for declaration of title.
I hold from the evidence and pleadings that the Plaintiff has established acts numerous and positive spreading over a length of time to warrant the inference that he is the owner. On the preponderance of evidence, I am satisfied considering all the evidence before me, that the Plaintiff has discharged the burden of Proof upon him.”
The submissions of learned senior counsel regarding the findings made by the lower court as re-produced above have been copiously highlighted. As it can be seen, lengthy submissions were made on behalf of the parties bringing into the appeal, native law and custom of acquisition of land in Benin kingdom as well as native law and custom of inheritance in Benin kingdom. I have earlier in this judgment noted that the Respondent did not plead reliance on Benin native law and custom of inheritance. He also clearly did not plead reliance on Benin native law and custom regarding the acquisition of the land in dispute by his grandfather. The position of the law regarding customary law is that customary law being a fact must be specifically pleaded and established by evidence before the court. See OLUBODUN V. LAWAL (2008) 35 NSCQLR 574 wherein Aderemi, JSC; dwelling on custom or customary law stated to the effect that it is a set of rules of conduct applying to persons and things in a particular locality. That it is of the characteristics of a custom or customary law that it must be in existence at the relevant time and must be recognised and adhered to by the inhabitants of the community to make it binding. That in relation to adjudication, custom is a question of fact which must be pleaded and proved by independent witness or witnesses. See also OGOLO V. OGOLO (2003) 18 NWLR (pt. 852) 494.
I am aware of the position of the law that a custom that is of such notoriety and has been frequently followed by the courts can be noticed judicially. See TORIOLA V. WILLIAMS NSCQR (1982) 890. Clearly all that this implies is that a party relying on a custom that has attained notoriety and having pleaded such custom, is relieved of adducing evidence to establish the same. There is nowhere in the pleading of the Respondent that reliance was placed on any aspect of Benin native law and custom no matter the notoriety of the said custom. Indeed what the Respondent pleaded if he pleaded any custom as it were is “Uwabor family tradition or history”. It would therefore appear that any reliance by the lower court on any native law and custom in Benin kingdom in favour of the Respondent definitely has no factual basis.
Learned counsel for the Respondent in my considered view clearly appreciated the need for the Respondent to have pleaded the customary law the Respondent relied upon when he stated on page 16 of the Respondent’s Brief of Argument thus: –
“Although the Respondent did not specifically plead facts or lead evidence to (sic) customary grant to his grandfather in 1930 before or after deforesting, he however testified under cross-examination that before the father deforested in 1930, the land subject of this suit was a communal land. Since it is trite law that land in Benin belong to the community and the Oba holds it in trust for the people, there is a strong presumption that the Respondent’s grandfather complied with the condition precedent or must have had the land in dispute allocated to him by the Odionwere of Idumodin, where the land is situate, before he deforested in 1930.”
In the light of the position of the law, it is clear that whatever evidence the Respondent might have adduced concerning the allocation of the land in dispute to his grandfather by Odionwere of Idumore, Idumodin (had he even adduced such evidence) would have gone to no-issue. It is therefore somehow preposterous for learned counsel to expect this court to reckon with what or presume the existence of what would have amounted to evidence that went to no issue.
Learned senior counsel for the Appellant on his part accused the lower court of failing to consider the issue concerning the burial rites of the fathers of the Respondent and the Appellant as per Benin custom. I cannot but say again that the Respondent did not plead that he inherited the land in dispute under Benin native law and custom. He also clearly did not nominate any such issue for the determination of the lower court in respect of his reliefs. In any event I even do not see where the Appellant remotely testified concerning the non fulfillment of Benin custom relating to burial by the Respondent. It is in my view also a total misconception of the judgment of the lower court to accuse the court of having not considered submissions by Appellant’s counsel relating to the issue of the burial of the fathers of the Respondent and the Appellant. The lower court did. This the lower court did on page 125 of the records by averting its mind to the issue. The lower court clearly dismissed the issue as not arising for consideration peremptorily. The peremptory dismissal of the issue does not tantamount to a non-consideration of the issue. Having equally found that the issue of the burial of the fathers of the Respondent and Appellant, does not arise for determination in the light of the pleading of the Respondent and reliefs sought by him, coupled with the fact that the Appellant in any event did not adduce any evidence on the matter, I definitely see nothing the lower court did wrong in peremptorily dismissing the issue.
In the light of all that I have said, I therefore resolve Appellant’s Issue 4 against him.
Before now, I have re-produced the portion of the judgment of the lower court regarding the finding made in favour of the Respondent in respect of his title to the land in dispute. It is in my considered view obvious from the state of the pleading of the Respondent (who the lower court found to have hinged his case on traditional evidence and possession) that the pleading of the Respondent on traditional history/evidence of tradition was most inconclusive. This is because the Respondent indisputably did not plead all the essentials of traditional history/evidence of tradition concerning how the root of title of his grandfather i.e. Idumore Quarters (community) came to own the land part of which the Respondent’s grandfather deforested. The Respondent would appear not to appreciate that he did not portray his grandfather as the founder of the land of which the deforested land formed part. This being the case, the root of title of the Respondent’s grandfather also needed to have been pleaded and how that root of title came to found and own the land part of which the Respondent’s grandfather deforested. It would have been otherwise if it had been the case of the Respondent that his grandfather deforested the land and the community thereafter emerged on it.
It is the stance of learned senior counsel having regard to his copious submissions that the question of the traditional history of the Respondent regarding the land in dispute being inconclusive does not arise in the light of the pleading of the Respondent and the evidence adduced by him. That the matter was not one of inconclusive evidence of tradition, but failure by the Respondent to establish the traditional history of the land in dispute and that there was no legal basis to have found the Respondent to have proved title to the land in dispute on the basis the lower court did.
It is not in doubt that inconclusive pleading of traditional history/evidence of tradition cannot establish conclusive evidence of the same. See ELEGUSHI V. OSENI (supra). Therefore, the lower court was glaringly in error or wrong to have found the evidence of tradition adduced by the Respondent, inconclusive. The traditional history/evidence of tradition pleaded by the Respondent was defective. Therefore, the question of the testimony of the Respondent relating to the same being inconclusive has no factual basis. The law is also most settled that acts of possession exercised on a parcel of land, subsequently and consequently to a pleaded primary root of title relied upon, cannot be used to establish ownership to the land in question where the primary root of title relied upon is not proved. See DABO V. ABDULLAHI [2005] All FWLR (Pt.255) 1039; and OYADARE V. KEJI (2005) ALL FWLR Pt.247) 1583. In my considered view, the lower court was also glaringly wrong in finding any numerous and positive acts spreading over a length of time on the part of the Respondent to have warranted the inference of that the Respondent was the owner of the land in dispute inasmuch as the said acts were subsequent and consequent to the deforestation of the land in dispute that the Respondent stated to have taken place in 1930. The lower court clearly misapplied the principle of law in Obiaso v. Okoye (supra) as contended by learned senior counsel. Finally, I cannot but say that given the concession by learned counsel for the Respondent, that the Respondent did not specifically plead or lead evidence of any customary grant to his grandfather in 1930, the title of the Respondent’s to the land in dispute by grant therefore cannot be said to have been established by the Respondent. Needless to say, as the Respondent did not establish the title of his grandfather to the land in dispute, the question of the Respondent having inherited the same through his own father has no basis. This is because; it is something that one is established to have owned that can be inherited.
Flowing from all that has been said is that Appellant’s Issues 1 and 2 are resolved in his favour.
Learned senior counsel for the Appellant submitted to the effect that once the evidence of tradition of the Respondent is held as not establishing the ownership of the land in dispute by the persons through whom the Respondent claimed that the same devolved on him, what was left before the court in that event is the evidence of tradition of the Appellant and that this entitled the Appellant to judgment in respect of his counterclaim.
Learned senior counsel would appear to have ignored the notorious position of the law to the effect that a finding that a claimant for title to a piece of land has not established his title to the land does not tantamount to a finding that the ownership or title thereto is in the adversary. See ANWOYI V. SHODEKE (2006) 13 NWLR (PT. 996) 34. It is my considered view that it is in apparent recognition of the position of the law in this regard, that the Appellant being the adversary of the claimant in the main case, (i.e. Respondent) has specifically claimed for title to the land in dispute be decreed to reside in him by his counter-claim.
The lower court gave a consideration to the counter-claim of the Appellant from pages 130 – 132 of the records and in dismissing the said counter-claim stated on page 132 thus: –
“In the instant case, the averments in the statement of defence and counter claim, the Defendant/Counter Claimant relied on Exhibit ‘D’ as proof of title to the land in dispute, Exhibit ‘D’ cannot confer title to the defendant based on Benin Land Law and Custom prior to 1961. For all the reasons herein before stated, the Counter Claims lacks merit and is hereby dismissed.”
Having regard to the pleading of the Appellant, I am of the considered view that he relied on customary grant in the proof of his title to the land he claims in his counter-claim. The land which the Appellant claims is as shown in Exhibit “E” and undoubtedly he has premised his claim to it on Exhibit “D”. It has earlier been shown that the Appellant save from tendering Exhibit “E” knows next to nothing about it. He gave no description of the land in his evidence before the lower court. The maker of the Exhibit was not called as a witness thereby robbing the same of any value or weight. The Appellant tendered Exhibit “D” in the proof of the fact that the Oba of Benin on 5th April, 1940 allocated and granted permit to his father (through whom he claims the land he has put into dispute, by inheritance) to plant permanent crops thereon. The Appellant undoubtedly realized that the allocation of land to his father for the purpose of planting permanent crops thereon is not the same as a customary grant to own the land in question. Hence the Appellant pleaded in paragraph 11 of the statement of that in Igbanke, before the Land Use Act, Oba’s permit to an individual to plant permanent crops on any communal land is the same as Oba’s Approval or customary grant to an individual to own any piece of land to the exclusion of any other person over such piece or parcel of land. I have hereinbefore stated that the question of customary law is a matter of fact that has to be pleaded no matter the notoriety of the said custom. That the only thing the notoriety of a pleaded custom relieves a party of, is adducing evidence in respect of the said custom. On the evidence adduced by the Appellant he definitely proved the fact of the granting of land to his father in 1940 by the Oba of Benin. This is against the fact that inasmuch as the Respondent did not plead any custom to the contrary, there was no basis for him to rely on the notoriety of any custom to disprove the custom pleaded by the Appellant in paragraph 11 of the Statement of Defence and Counter-Claim. The custom pleaded by the Appellant is that the Oba of Benin in his capacity as the sole traditional trustee of all communal land within the Benin Kingdom which includes Igbanke was the only competent authority to make direct customary allocation of any piece or parcel of land to individuals for customary ownership or permission to plant permanent crops. Surely, if the Respondent had any quarrel with the custom in question or believed that the custom was something else, it was for him to have pleaded such custom in the Reply to Statement of Defence and Defence to Counter-Claim. It is therefore my considered view that all the references to “lkhinmwin” tree brought up by the Respondent in his address before the lower court and which the lower court apparently relied upon in coming to the conclusion that Exhibit “D” cannot confer title on the Appellant based on Benin land law and custom prior to 1961, were in respect of matters which went to no issue, The lower court was therefore wrong to have found that Exhibit “D” did not confer title on the Appellant based on Benin land law and custom prior to 1961 which was never pleaded and made an issue for its determination.
But does this mean that the Appellant proved his title to the land that he claims by Exhibit “D”. Exhibit “D” is titled “Permit to Plant Permanent Crops” and signed by the Oba of Benin on a date that appears to be 5/4/40 as pleaded by the Appellant. The Exhibit bears witness to the fact that the Appellant’s father was granted permission by the Oba of Benin to plant permanent crops on one acre of land at Ake in the Igbanke village area of Benin Division. Learned counsel for the Respondent in his submissions made many observations regarding the Exhibit “D”. In the Reply Brief of the Appellant learned senior counsel submitted that the authenticity of the Exhibit cannot be challenged at this stage (which I understand to mean in this appeal), I must say that given all the observations made by learned counsel for the Respondent, I certainly do not understand him as challenging the authenticity of the Exhibit “D”. All that he has done by his observations is to show that the Exhibit does not relate to the land being claimed by the Appellant. And I cannot but say that learned counsel for the Respondent is very correct in this regard. The land granted to the Appellant’s father to plant permanent crops thereon is clearly not ascertainable on the face of the Exhibit. Save that it shows that one acre of land at Ake was granted to the Appellant’s father for the planting of permanent crops, it contains no other information as to the boundaries of the land granted. There is absolutely no evidence adduced by the Appellant concerning the fact that the land in dispute as depicted by him in his survey plan i.e. Exhibit “E” and/or as described by the Respondent in his evidence is the same or a part thereof (i.e. land shown in Exhibit “E”). For all one knows the land to which Exhibit “D” relates can be anywhere in Igbanke village area of Benin Division. This is aside from the fact that the Appellant led absolutely no evidence in support of the pleaded fact that in Igbanke, a permit such as Exhibit “D” is the same as the Oba’s approval or customary grant to the holder to own the land in question. No decided case showing the notoriety of the custom was cited before the lower court.
Given all that has been stated and particularly in the light of the lacuna or gap between Exhibit “D” vis-a-vis the land in dispute as depicted by the Appellant, I cannot but find (like the lower court did) that Exhibit “D” cannot confer title on the Appellant in respect of the land shown in Exhibit “E” or indeed in respect of the land in dispute as established by the Respondent.
From all that has been said issue 5 is accordingly resolved against the Appellant.
ISSUE 3 – Can the judgment entered in case by the lower court stand given the manner in which the reliefs sought by the parties were granted by the lower court?
Given the manner in which the issues formulated by the Appellant have been resolved, it is in my considered view obvious that the first of the reliefs sought by the Respondent and granted by the lower court to wit a declaration that the plaintiff is the bona fide owner and hence entitled to the customary right of occupancy of the land lying and situate at Idumore quarters, Idumuodin, Igbanke, measuring approximately 1,500ft by 700ft, was wrongly granted as the Respondent has not been found to have established this title to the said parcel of land.
The second relief is for perpetual injunction in respect of the “Respondent’s land”. The third of the relief was not granted by the lower court by incorporation by reference of the same as sought by the Respondent. It was granted thus: Two hundred thousand Naira as general damages for trespass on the Plaintiffs land.
I am aware of the position of the law that a claim in trespass being one hinged on possession need not fail once that for declaration of title fails. This is because a claim in trespass is rooted in possession. Hence a claim for injunction too, can be granted if possession is established. See BALOGUN V. AKANJI (2005) 10 NWLR (Pt.933) 394; and OKHUAROBO V. AIGBE (2002) 9 NWLR (PT.771) 29.Despite this notorious position of the law, learned senior counsel for the Appellant who devoted all his submissions towards having the grant of the declaration to the Respondent reversed also sought for the dismissal of the Respondent’s case in its entirety. Upon deep reflection it dawned on me that having regard to the peculiar manner in which the Respondent presented his case and particularly the manner in which he couched his reliefs, the success of the first of the reliefs must necessary result in the success of the other two; just as the failure of the first relief must equally result in the failure of the two other reliefs. This is because it would be contradictory to refuse the Respondent the declaration to the ownership/title of the land in dispute because he did not establish his title to the same and in the same breath to grant him injunction over the land the ownership/title of which he never proved as well as granting him damages in respect of trespass to the land in dispute that he has not been found to own. Perhaps the Respondent would have been in a better position if learned counsel had seen the good sense in giving particular details to the manner in which the reliefs were couched and particularly by having simply referred to it as the land in dispute and stating its description instead of “plaintiffs land”.
In respect of the Appellant’s counter-claim, it is equally obvious that having not established his title to any identifiable parcel of land by Exhibit “D”, he clearly cannot be granted any of the reliefs he sought even if the counter-claim had succeeded.
In the final analysis, the appeal partially succeeds. The judgment of the lower court delivered on 15/3/2011 is hereby varied by dismissing the case of the Respondent while the dismissal of the Appellant’s counter-claim by the lower court is affirmed.
I make no order as to costs as the appeal succeeds partially only.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. I have had the privilege of reading the judgment just delivered by my learned brother AYOBODE OLUJIMI LOKULO-SODIPE, JCA. His Lordship has meticulously considered and determined all the vexed issues leading to the appeal. The Appellant had counter-claimed for title to the land in dispute. I agree with my learned brother that having not identified the land for which he sought declaration of title even by Exhibit ‘D’, the Appellant’s counter-claim was bound to fail. Apart from that, the Respondent’s counsel agreed that the Respondent did not specifically plead or lead evidence of any customary grant to his grandfather which could have devolved on his father. Thus the claim of the Respondent to the land by inheritance from his father has to fail. Since the Respondent had hinged his claim to possession to his claim for title, then the claim for both title and possession has to fail. It is obvious that in the peculiar circumstances of this case, neither party proved the claim or counter-claim at the trial court. Neither is entitled to the declaratory reliefs sought.
The appeal succeeds in part to the extent that the order of the trial court entering judgment in favour of the Respondent is hereby set aside. No order as to costs.
TOM SHAIBU YAKUBU, J.C.A.: I had the opportunity of reading the draft of the judgment, just delivered by my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA. I am in total agreement with his reasoning and conclusions that whilst the appeal succeeds with respect to the respondent’s claim, the appeal is dismissed with respect to the appellant’s counter-claim.
The respondent’s claim as per paragraphs 5, 6 and 8 of the Statement of Claim is to the effect that he inherited the land in dispute from his own father Mr. Uwabor who had earlier inherited the same land from the respondent’s grandfather called Pa Iyotor who allegedly deforested that land. Therefore, by his own showing upon his pleading which per force binds him, the respondent clearly relied on traditional history evidence to prove his title to the land in dispute.
In order to prove the ownership of the land in dispute through traditional history which is one of the methods of acquisition of land, the respondent as the claimant must plead and prove by conclusive evidence, such facts as –
(i) Who founded the land in dispute;
(ii) How that first person founded the land and
(iii) The particulars of the intervening owners through whom the claimant came to own that land.
Elegushi V. Oseni (2005) All FWLR (Pt.282) 1837 at 1852 (SC); Nkado V. Obiano (1997) 1 NWLR (Pt.482) 374 (SC); Piaro V. Tenalo (1976). 12 SC 31.
The respondent had the burden of establishing by hard evidence as to how his grandfather deforested the land in dispute which was part of the communal land and how it was founded. The learned trial Judge was quite on target when he stated the correct position of the law at page 128 of the record that:
“Where evidence of traditional history is led and not contradicted, and is found to be cogent, it can support a claim for declaration of title.”
See Alli V. Aleshinloye (2007) 77 LRCN 742.
Having stated the law correctly, the next step to have been taken by his Lordship, was to evaluate the pieces of evidence proffered by and for the respondent in establishing the traditional history which entitled him to the land in dispute. This, the learned trial Judge did not do. Instead he decided to find “acts numerous and positive spreading over a length of time” in order to determine the ownership of the land by the respondent. It is when the evidence of traditional history as projected by parties are inconclusive that a resort is made to finding “acts numerous and positive spreading over a length of time”, exercised on the land in dispute by the parties, upon a preponderance of evidence, to determine the owner of the land in question. But where traditional history evidence of the claimant failed, his claim, without more, failed and must be dismissed.
In a claim where traditional history evidence is proffered in court, what the court is to do has been well outlined more recently by the apex court in Ireju Nwokidu & 3 Ors. V. Mark Okanu (2010) 1 SCNJ 167 at 196; (2010) 3 NWLR (pt.1181) 362 at 398, paras A.C, per Adekeye, JSC., who stated that:
“In the scenario before the court, where the case is fought on evidence of traditional history – which in other words becomes a matter of hearsay upon hearsay which is the nature of traditional evidence, the trial court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history relied upon, the trial court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied on by the other side, the trial court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.”
That is the essence of the rule in Kojo V. Bonsie (1957) WLR 1223.
In the instant case, the respondent did not plead facts of traditional history and could not lead evidence of the same to establish his claim which ipso facto, failed and ought to have been dismissed by the learned trial Judge.
With respect to the appellant’s counter-claim; he relied heavily on Exhibits “D” and “E”. Of course, production of documents of title to prove ownership of land, could aid the claimant’s case. Ayanwale V. Odusanmi (2011) 12 SCNJ (Pt.II) 362 at 372. However, in the circumstances of the appellant’s Counter-claim, where Exhibit “E” – the property survey plan could not be tied to Exhibit “D” which was a grant by the Oba of Benin in 1940 to the appellant’s father, as a “permit to plant Permanent Crops”, then the counterclaim collapsed. The said Exhibit “D” is at large. It has no ascertained dimension and boundaries. And from appellant’s own showing, he is bereft of the contents of Exhibit “E” – which also has no boundaries stated thereon, just like Exhibit “D”. Therefore, both Exhibits “D” and “E” which were at large and I dare say, in vacuo, could not have been solid foundations or plank upon which to erect the appellant’s ownership of the land in dispute. The learned trial Judge rightly dismissed the counter-claim.
It is for these reasons and the fuller/well-articulated reasons contained in the lead judgment, that l, too allow the appeal with respect to the respondent’s claim, which failed and on the other hand, dismiss the appeal with respect to the appellant’s counter-claim, which also failed.
Each side shall bear his own costs.
Appearances
J. O. Aghimien SAN with F. O. Oghahenhen (Mrs.) and E. AsiriuwaFor Appellant
AND
M. K. Agienoji with H. A. IdebeFor Respondent
