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MUIBI & ORS v. AIRHUNMWUNDE (2022)

MUIBI & ORS v. AIRHUNMWUNDE

(2022)LCN/17153(CA) 

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, May 13, 2022

CA/B/19/2019

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

1. MR. AKEEM MUIBI 2. MR. TIRIMISIYU AWLMU 3. MR. OLAWALE SALAMI 4. MR. IDOWU ASAFA 5. MR. TUNDE AYOADE (For Themselves And On Behalf Of Ifesowapo Butcher Union) 6. MR. SAMSON E. OBAZEE 7. MR. ETINOSA IGHODARO (For Themselves And On Behalf Of Iyowa Village/Community) APPELANT(S)

And

MR. CHARLES OSAWARU AIRHUNMWUNDE RESPONDENT(S)

 

RATIO

THE BURDEN OF PROOF IN CIVIL MATTERS

The position of the law as settled in plethora of authorities that the burden of proof in civil matters is generally on the claimant is well firmed. See: ADAMU V. NIGERIAN AIRFORCE & ANOR (2022) (SC). As commonly put; he who asserts must prove. However, the burden of proof in civil matters unlike in criminal proceedings is not static, it lies on that person who would fail if no evidence was given on either side. This burden of proof required is on balance of probability or on preponderance of evidence. See: INYANG V. CCECC (2020) LPELR-49694 (CA); SECTION 132, 133 AND 136 OF THE EVIDENCE ACT 2011.

Therefore, the onus of proof herein lies on the Claimant who seeks a declaration of title to the disputed land to establish with certainty and precision and without inconsistency the area of land to which his claim relates and how he acquired his title. The point clearly emphasized is that a declaration of title to land can only be granted in respect of land which has definite, precise and accurate boundaries. Thus, for the Claimant to succeed in his claim for the land, he must prove the exact location of the land and how he acquired his title. See: DADA V. DOSUNMU (2006) LPELR-909(SC); AMU & ANOR V. OKEAYA-INNEH & ANOR (2021) LPELR-55660 (CA); IBRAHIM & ANOR V. BORNO STATE GOVT & ANOR (2021) LPELR-56575(CA); TOMU V. MUAZU & ORS (2019) LPELR-47930(CA). This is the foremost and fundamental duty of a Claimant, because where a Claimant fails to plead and establish the precise area of the land to which his claim relates, whatever evidence, whether oral or documentary he produces at the trial and even though it is cogent and credible cannot in law, ground a claim of an interest in the land in his favor. Hence, before a Court before trying a land case goes into the facts of the case, it must firstly satisfy itself with the certainty of the land in dispute and its boundaries.
PER ONYEMENAM, J.C.A.

METHODS OF PROVING TITLE OF OWNERSHIP TO LAND

On whether the Respondent proved his title to the land in dispute; the position of the law is settled beyond argument on the five methods to prove title to land. The Supreme Court enunciated this principle in the case of Idundun V. Okumagba (1976) 9-10 SC. 227; where it stated thus;
“There are five methods to prove title to land to wit; (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 on a 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’.
It should be noted however, that proof of any of the above mentioned five methods is enough to establish title to land. If a Claimant pleads and/or relies on more than one method to prove his title, he merely does so ex abundante cautela. See: IFEDIORA & ORS V. OKAFOR & ORS (2019) LPELR-49518 (SC). 

Clearly, it is when a person is relying on traditional history among the five methods of proof of title to land that he has the obligation to plead and prove root of title. See: ELIJAH & ORS V. ADEKANBI (2015) LPELR-41789(CA); BOLANTA & ANOR V. TOSIN NOVEL FIRMS LTD 2020 (CA); IBISU V. KINGHAM & ANOR (2021) LPELR-56306(CA). The proof of root of title must be proved through cogent and credible evidence. PER ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Edo State sitting at Benin City delivered in Suit No. B/36/2012 by A. Edodo-Eruaga, J. on 14th February, 2018, wherein the trial Court entered judgment in favour of the Appellant.

The Appellant at the trial Court by an amended Writ of Summons and statement of claim filed on 13th March, 2014, prayed for the following order:
(a) “A declaration that the Claimant is entitled to customary right of occupancy to all that piece or parcel of land situate at Ora Village Area, Ovia North East Local Government Area of Edo State, Benin City verged red in litigation survey plan No. SEA/ED/D./172A/2017 and prepared by Surveyor Henry Ediagbonya B.SC MBA herewith containing an area of 2987.625 square meters
(b) The sum of N50,000.00 only being general damages for trespass in that the defendants, their servants, privies and agents at various dates beginning from March, 2011 when they broke and entered the claimant’s said land and bulldozed large area of the claimant’s economic and arable crops without the consent and authority of the claimant.
(c) An order of perpetual injunction restraining the defendants, their servants, privies and agents, from further trespassing unto the land as howsoever doing or continuing to do anything inconsistent with the vested right of the claimant over the land in dispute.”

​The brief fact of the case is that the Respondent who was the Claimant at the trial Court alleged that he is the owner of the piece of land measuring an area of 2987.625 square metres allegedly situate at Ora Village in Ovia North East Local Government Area of Edo State which land he claimed to have inherited from his late father, Pa Jonah Airhumwinde Omoregie who acquired same in 1920 through customary grant from the Odionwere and Elders of Ora Community. The Respondent claimed that this land in dispute is part of the larger parcel of land acquired by his late father. He also alleged that the Odionwere and Elders also planted an Ikhinmwin tree on the land after the land was granted to his father to symbolize his ownership over the land and his father farmed on it from 1920 till 1993 when he passed on. After the death of his father, the Respondent then appointed Mr. Daniel as a caretaker who also farmed on the land. His father died in September 1993 and after his burial the land in dispute was then shared to him by his late father’s family members led by the Okaegbe, Mr. Samuel Osarenkhoe. He took immediate possession of the land by allowing the said Mr. Daniel, his caretaker to continue farming on the land and that sometime in 2011 he was informed by Mr. Daniel (his caretaker) that the Appellants have trespassed on the said land.

The Appellants on the other hand alleged that the land in dispute belongs to Iyowa Community and that it is situate at Iyowa Community as was allegedly confirmed by the decision of the Oba of Benin, Omo’N’Oba N’edo Ukuakpolokpolo in the letter dated sometime in 2010 during a boundary dispute between Iyowa and Ora Communities. The Appellants further alleged that it was Iyowa Community through her Enogie late Obayagbona Aigbekaen that gave the land to the Respondent’s father for farming and not as grant.

​The Appellants further alleged that in 2011, the land in dispute was allocated to the 2nd to 5th Respondents by Iyowa Community through its Elders in Council and they took possession of the land by erecting a wall fence on the land.

At the end of the trial, the Court gave judgment in favour of the Respondent. Dissatisfied with the judgment of the Court, the Appellants approached this Court vide an amended Notice of Appeal filed on 2nd April 2019. Upon the exchange of briefs as required by the rules of this Court, the appeal was heard on 1st March, 2022.

E. O. Afolabi Esq., with Ehinon Okoh Esq., and F. M. O. Ogbeide Esq., appeared for the Appellants, while B. O. Ojumah Esq., appeared with C. C. Okaaleke Esq., for the Respondent.

E. O. Afolabi Esq., for the Appellants adopted and relied on the Appellants’ brief of argument and the reply brief filed on 2nd April 2019 and 11th October 2021 but deemed properly filed and served on 1st July, 2021 and 13th October 2021 respectively in urging the Court to allow the appeal. The Appellants in the said brief of argument donated 3 issues for determination to wit:
1. “Whether the trial Court was right in entering judgment in favour of the Respondent when the customary grant upon which he based his title to the land in dispute was not proved as required by law.
2. Whether the act of possession by Respondent’s late father on the disputed land is of any positive effect in the face of a defective title.
3. Whether the Respondent has established the identity and location of the land in dispute warranting the Court to enter judgment in his favour.”

B. O. Ojumah Esq., for the Respondent adopted and relied on the Respondent’s Brief of argument filed on 11th October 2021 but deemed properly filed and served on 13th October, 2021; in urging the Court to dismiss the appeal. The Respondent’s Brief of Argument formulated 2 issues for determination as follows:
1. “Whether the Respondent proved his title to the land in dispute before the trial Court to entitle him to judgment.
2. Whether the Respondent correctly identified the land in dispute and led evidence to situate the land in Ora Community as held by the learned trial Judge.”

Upon careful examination of the three issues raised by the Appellants, the 2 issues distilled by the Respondent; and with the Grounds of Appeal; adopting the 2 issues formulated by the Respondent will substantially determine the appeal. I shall therefore determine the appeal on the referred 2 issues. However, I shall resolve the said issues 1 and 2 together as they both interwove.

SUBMISSIONS ON ISSUE 1
Whether the Respondent proved his title to the land in dispute before the trial Court to entitle him to judgment.
E. O. Afolabi Esq., for the Appellants on this issue contended that the onus is on the Claimant to prove his case and not to rely on any weakness or failure on the part of the defendant. The onus cannot shift until he has proved his claim satisfactorily as it is the duty of he who asserts the existence of a particular fact to prove same. He relied on METIBAIYE v NARELLI INTERNATIONAL LTD. (2009) 16 NWLR (PT. 1167) 326 AT 352; KOPEK CONSTRUCTION LTD V. EKISOLA (2010) ALL FWLR (PT519) 1035 AT 1061, PARAS B-C; AWANYA v ONYEJEKWE (1975) 3 SC 161; ORONSAYE v OSULA (1976) 6 SC 21; ANDNKANU v. ONUM (1977) 5 SC; AGATA v. OKUSIN (2010) 10 NWLR (PT. 1202) 412 at 434; AGBALLAH v. CHIME (2009) NWLR (Pt 1122) 373 at 327.

​The learned counsel submitted that the law is that in a situation where a party relies on inheritance or grant based on traditional evidence, the names of the persons who originally owned the land who made such grant and how the land was founded and devolved on them cannot be dispensed with and it is incumbent on the claiming party to provide this necessary information. He relied on BELLO v SANDA (2012) ALL FWLR 639 462 AT 478-479; IROAGBARA v UFOMADU (2001) FWLR (PT 61) 1753, (2009) 11 NWLR (Pt.153) 587; DIM v ENEMUO (2009) 10 NWLR (pt.1140) 353; MOGAJI v CADBURY (NIG) LTD (1985) 2 NWLR (PT 7) 393; DAGACI OF DERE v DAGACI OF EBWA (2006) ALL FWLR (PT.306) 786.

He submitted that the Respondent’s failure to tell the Court the names of the Odionwere and Elders who approved his father’s application and allotted the land to him or any member of Ora Community who witnessed the same is fatal to his case. He relied on ANAEZE v ANYASO (1993) 5 NWLR (PT.29) P1; UNIVERSITY PRESS LTD v I.K MARTINS (2000) 4 NWLR (PT.654) P. 584

E. O. Afolabi Esq., further submitted that if the title of his vendor or grantor is defective and non-existent like the instant one, then obviously he will have no valid title to pass to anybody. He cited NWADIOGBU v NNADOZIE (2001) FWLR (PT61) 1625 (2001) 12 NWLR (PT.727) 315; AGAKA v AYIURA (2012) ALL FWLR (PT.608) 899 -945; ONUOHA v. ADUBUEZE (2002) 2 (PT.750) 72; POLO v. OJOR (2003) 3 NWLR (PT 07) 344; EZINWA v. AGU (2003) 33; ADESANYA v. ADERONMU (2000) FWLR (PT.15) 2492; FAYEMI v. AWE (2010) ALL FWLR (PT.528) 862.

The learned counsel further contended that in a case for declaration of title to land where title is based on traditional history such as the instant one, the claimant needs to adduce cogent and conclusive evidence on traditional history. He relied on OYEKAN v. OYEWALE (2012) ALL FWLR (PT. 623) 1991; GBADAMOSI v. TOLANI (2011) 5 NWLR (PT 1240) 352; SANUSI v OBAFUNWA (2006) 28; FAYEMI v AWE (SUPRA) AT PAGE 882, PARAS D-E; IRIRI v. ERHURHOBARA (1991) 2 NWLR (PT.173) 252; DIKE v OKOLOEDO (1999) 10 NWLR (PT 628) 359.

He submitted that evidence of the 6th Appellant that the land in dispute was given to Respondent’s father for farming by Obanyagbona Aigbekaen of Iyowa Community is unchallenged and unchallenged evidence is deemed admitted. He cited N.S.I.T.F.M.B. v. KLIFCO (NIG) LTD 2010 186 LRCN 1 AT 19A-F; OMOREGBE v. LAWANI (1980) 3-4 SC 108, BELLO v. EWEKA (1981) 1 SC; OFORLETE v. STATE (2000) 12 NWLR (Pt.681) 415; MATANMI & ORS v. DADA & ANOR ​(2013) 221 (PT 2) 223 AT 243, KP; WINTAI OFEI vs DANGUAH (1961) 3 ALL ER 596.

It is also the contention of learned counsel that mere farming on a piece of land cannot be seen as an act of ownership. He can best be described as a customary tenant. He cited AYORINDE v. SOGUNRO (2012)at ratio 10; NKWOCHA v. OFURUM (2002) 5 NWLR (PT. 761)) 506; OYEKAN v OYEWALE (2012) ALL FWLR pt.623 1991 AT 2009, PARAS D-E; MOGAJI v. CADBURY LTD AT 431432; OYADARE v KEJI (2005) ALL FWLR pt.247 1583.

Furthermore, he contended that though act of long possession is one of the ways of proving ownership of land, the Respondent however did not rely on acts of long possession as his root of title to the land, rather, he relied on grant. Therefore, the trial Court misconstrued itself when he adjudged the Respondent’s father’s act of possession on the land as ownership right and entered judgment on that ground. He argued that for one to talk of acts of ownership, he must first establish root of title. He relied on BELLO v. SANDA (2012) ALL FWLR pt.636 481, PARAS B-E; OBIOHA v. DURU (1994) 8 NWLR (PT.365) 631; NDUKUBA v. IZUNDU (2006) ALL FWLR pt.349 1740. He urged the Court to resolve this issue in favour of the Appellants and allow this appeal.

B. O. Ojumah Esq., for the Respondent in response to the issue submitted that there are five methods to prove title and a Claimant need not prove all the five methods of proving ownership of land to succeed in declaration of title to land, rather, proving one method suffices. He relied on Idundun & Anor. v. Okumagba (1976) 1 S.C.J.L. 826 at 838 to 840; Irolo v. Uka (2002) 14 WLR (pt. 786) 203.

The learned counsel submitted that the Respondent herein proved his title to the land through the Evidence of traditional history by demonstrating how his father acquired the land and how he in turn inherited same from his late father

B. O. Ojumah Esq., further contended that he has proved title by establishing exercise of numerous and positive acts of ownership extending over a sufficient length of time to warrant the inference that the person is the owner; Act of long possession and enjoyment of the adjacent lands.

​It is the contention of learned counsel that the planting of Ikhinwin tree on the land in their custom depicts ownership. He submitted that custom and tradition does not require proof as Courts take judicial notice of them. He cited Section 17 of the Evidence Act 2011; Uwadiae V. Aburime (1996) LRCN at 2419; Ogunde v. Abdusalam – 107 at 132 lines 30-45

B. O. Ojumah Esq., contended that the parties did not join issue as to the methods of land acquisition in Benin as at 1920 and therefore did not join issue on who is the Odionwere that granted the land. And as such, both the parties as well as the Court are bound by the pleadings, the Appellant cannot raise an issue on the same. He relied on Registered Trustees of the Apostolic Church V. Mrs. Olowoleni (1990) SCNJ 69; Ogunde Vs. Abdusalam (supra) page 135.

The learned counsel contended that in a proof of title by traditional history or evidence, the party relying on such method does not need to personally witness the transaction as it consists of series of events passed from one generation to another. Therefore, the Respondent herein need not to have witnessed when the land was allocated to his father before his testimony would stand. He cited Arowolo v. Olowookere (2011) 18 NWLR (Part 1278) 280 at 305, paras A-C; Alade v. Awo supra at pages 762 to 763; Abinabina Vs. Enyimad reported in Vol. XII WACA 171, at page 172.

B. O. Ojumah Esq., submitted that in a claim for declaration for title to land, a Judge who is confronted with two opposing accounts of how the disputed land was acquired must consider both accounts and decide on the balance of probabilities which of them he will accept. He submitted that the trial Court was right when it preferred the account of the Respondent which stated with specifics when the land was acquired as opposed to that of the Appellants which merely said that it was over 50 years since the Respondent’s father came into possession of the land without specifics. He relied on Omoregbe v. Edo (1971)S.C.J.L 347 at 353 paras D.

He finally submitted that the Respondent also proved his case by act of long possession and peaceful enjoyment of the land, thus, shifting the onus to the Appellants to prove the contrary. He relied on Oyadare V. Keji (2005) 7 NWLR (Part 925) 571 at P. 590, paras E—F; Section 145 of the Evidence Act, 2011; Omoko v. State (2014) 31 96 at 113, Yusuf v. Obasanjo (2005) 18 NWLR (pt. 956) 96 at 167 paras B; Dagash v. Bulama (2004) 14 WLR (pt. 892) 144 at 250 paras D—E

The learned counsel urged the Court to resolve this issue in favour of the Respondent.

SUBMISSIONS ON ISSUE 2
Whether the Respondent correctly identified the land in dispute and led evidence to situate the land in Ora Community as held by the learned trial judge.
E. O. Afolabi Esq., for the Appellant on this issue submitted that a party laying claim to a piece of land must prove with certainty that his description of the land with respect to its location and boundaries are unassailable. Mere mentioning of the area is not enough, rather, the description and extent of the boundaries must be proved with exactitude and the onus of proving the same is on the Claimant who is seeking a declaration. He relied on ATANDA v. ILIASU (2012) 6 NWLR PT. 1350 529 AT 549, PARAS F-G; Wahcibi Maderi v. Chief Oyemyi Alade (1987) 4 SCNJ 102 (1987) 2 NWLR (pt.55) 101; IJAMA OTIKA ODICHE v. OGAH CHIBOGWU (1994) 7-8 SCNJ 317 AT 324-325 (1994) 7 NWLR (pt.354) 78; EKPEMUPOLO & ORS v. EDREMODA & ORS (2009) 3 M.J.S.C 63 AT 82; OKEDARE V. ADEBARA (1994) 6 NWLR PT.340 157; AGBONIFO v. AIWERIOBA (1988) 1 NWLR PT.70 325; ONWUKA V EDIALA (1989) 1 NWLR (PT.96) 182; KWADZO v ADJEI (1944) WACA 274; ARABA v. ASANLU (1980) 5-7 SC 78.

The learned counsel submitted that the decision of the trial Court is erroneous as the Respondent did not prove with certainty that the land is in Ora Community since the litigation survey is not conclusive proof of the location of a land without credible evidence to prove the facts contained in the said survey document as the said surveyor merely reflected in the litigation survey plan exactly as he was told to. He relied on AYUYA v. YONRIN (2011) ALL FWLR (PT583) 842 AT 1864 PARA F.

He further contended that the agreement between Iyowa Community and the 2nd to 5th Appellants admitted in evidence which shows that the land in dispute is situate at Iyowa Community was not challenged nor contradicted and should be accepted as true and correct. He urged this Court to resolve the issue in favour of the Appellants and set aside the judgment of the trial Court.

​B. O. Ojumah Esq., in response to this issue contended that since the Oba ordered that a setback of 200 feet be given to Aruogiora Shrine and that Ora should not go to Iyowa to serve the shrine, it follows therefore that the shrine is on Ora land. Thus, since the Aruogiora shrine is beside the land in dispute alongside other land that belongs to Ora people, it is proof that the land in dispute is in Ora land.

He submitted that the findings of the trial Court is not perverse and urged this Court not to interfere with the findings of the trial Court. He relied on Ubn Plc V. Chimaeze (2006) LPELR 11747(CA).

B. O. Ojumah Esq., further submitted that one of the ways to establish the identity of land in a declaration of title to land, is to tender a Survey Plan of the land in dispute or the litigation survey plan as the Respondent herein did.

He also argued that the Appellants did not deny the fact as per the boundary men who are of Ora extraction; neither did they join issue on the said boundary men with the Respondent and what is not denied need no further proof. He cited Insurance Brokers of Nigeria V. ATMN (1996) 8 WLR (Pt 466) 316; Aiyeola V. Pedro (2014) LPELR-22915 (SC).

​The learned counsel claimed that the burden is on the party claiming title to establish the identity of the land by specific and unequivocal evidence as to its boundaries. This he argued may be done by oral description of the land sufficient to make it ascertainable or by filing a survey plan. He relied on Tanko v. Echendu (2010) 18 NWLR (pt. 1224) 253 S.C; Aremu v. Adetoro (2007) 16 NWLR (Pt 1060) 244; (2007) 7 SC (Pt. II) 1; Odesanya vs. Ewedemi (1962) 1 All NLR 320; Awere v. Lasoju (1975) NMLR 100; Udofia vs Afia (1940) 6 WACA 24. He submitted that the Respondent herein discharged this burden by tendering before the trial Court an accurate Survey Plan of the land in dispute. He cited Adesanya v. Aderonmu & 3 Ors, (2000) 79 LRCN 2149 at 2173. He urged the Court to resolve the issue in favour of the Respondent and dismiss the appeal with substantial costs.

RESOLUTION OF ISSUES 1 AND 2
On whether the Respondent identified and proved his title to the disputed land at the trial Court so as to be entitled to judgment. The position of the law as settled in plethora of authorities that the burden of proof in civil matters is generally on the claimant is well firmed. See: ADAMU V. NIGERIAN AIRFORCE & ANOR (2022) (SC). As commonly put; he who asserts must prove. However, the burden of proof in civil matters unlike in criminal proceedings is not static, it lies on that person who would fail if no evidence was given on either side. This burden of proof required is on balance of probability or on preponderance of evidence. See: INYANG V. CCECC (2020) LPELR-49694 (CA); SECTION 132, 133 AND 136 OF THE EVIDENCE ACT 2011.

Therefore, the onus of proof herein lies on the Claimant who seeks a declaration of title to the disputed land to establish with certainty and precision and without inconsistency the area of land to which his claim relates and how he acquired his title. The point clearly emphasized is that a declaration of title to land can only be granted in respect of land which has definite, precise and accurate boundaries. Thus, for the Claimant to succeed in his claim for the land, he must prove the exact location of the land and how he acquired his title. See: DADA V. DOSUNMU (2006) LPELR-909(SC); AMU & ANOR V. OKEAYA-INNEH & ANOR (2021) LPELR-55660 (CA); IBRAHIM & ANOR V. BORNO STATE GOVT & ANOR (2021) LPELR-56575(CA); TOMU V. MUAZU & ORS (2019) LPELR-47930(CA). This is the foremost and fundamental duty of a Claimant, because where a Claimant fails to plead and establish the precise area of the land to which his claim relates, whatever evidence, whether oral or documentary he produces at the trial and even though it is cogent and credible cannot in law, ground a claim of an interest in the land in his favor. Hence, before a Court before trying a land case goes into the facts of the case, it must firstly satisfy itself with the certainty of the land in dispute and its boundaries.

​Herein, the Respondent in proof of the location of the land at the trial Court led evidence to the effect that the disputed land is situate at Ora and is surrounded on two sides by the land of Enehizena of Ora, an existing road and the land of Amayo of Ora on the other side. He also went further to tender a litigation survey plan which situates the land in Ora Community likewise the adjacent parcels of land. It is noteworthy that the Appellants at the trial Court did not join issues with the Respondent on the fact that the adjacent parcels of land to the land in dispute all belong to the people of Ora extract. Unexpectedly, no person of Iyowa extract owns any of the adjoining land, yet, the Appellants argued that the disputed land belongs to Iyowa Community. It is startling how one could have given out his land to another for the purpose of farming and yet, there is no evidence of the lessee paying any form of tribute to his overlord. Aso pertinent to note is the fact that the Respondent’s father undisputedly had exclusive and undisturbed possession from 1920 till sometime 2011.

Consequent to the above analysis, I do not agree with the Appellants that the land in dispute is situate in Iyowa Community. I agree with the findings of the trial Court that the Respondent through traditional history, adjacent parcels of land and litigation survey plan has proved on balance of probability that the land in dispute is situate in Ora Community. I so hold.

On whether the Respondent proved his title to the land in dispute; the position of the law is settled beyond argument on the five methods to prove title to land. The Supreme Court enunciated this principle in the case of Idundun V. Okumagba (1976) 9-10 SC. 227; where it stated thus;
“There are five methods to prove title to land to wit; (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 on a 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’.
It should be noted however, that proof of any of the above mentioned five methods is enough to establish title to land. If a Claimant pleads and/or relies on more than one method to prove his title, he merely does so ex abundante cautela. See: IFEDIORA & ORS V. OKAFOR & ORS (2019) LPELR-49518 (SC). 

Clearly, it is when a person is relying on traditional history among the five methods of proof of title to land that he has the obligation to plead and prove root of title. See: ELIJAH & ORS V. ADEKANBI (2015) LPELR-41789(CA); BOLANTA & ANOR V. TOSIN NOVEL FIRMS LTD 2020 (CA); IBISU V. KINGHAM & ANOR (2021) LPELR-56306(CA). The proof of root of title must be proved through cogent and credible evidence.

​The Apex Court summarized it in the case of F.I.P.D.C Nig Ltd V. E.A.S Ltd (2006) 6 NWLR Pt. 975 P.1 AT 28 where it stated that in an action where any of the reliefs sought by the parties are declaratory or involve title to disputed parcel of land, the Court is to consider 2 main issues which are thus:
1. Whether the claimant adduced credible, cogent and reliable evidence adducing the identity/boundaries of the disputed land?
2. Whether the claimant adduced credible and cogent evidence establishing of title through any of the 5 ways recognized in proving title to land generally as reproduced above.

​I had earlier on in this judgment resolved that the Respondent adduced credible, cogent and reliable evidence as to the identity of the land through his oral testimony, the adjacent parcels of land and the litigation survey plan. Now, the question is whether the Respondent who was the Claimant at the trial Court proved his title through any of the five methods enunciated above. The Respondent at the trial Court made effort to prove his title to the land in dispute by traditional history and long possession. In proof of this title through traditional means, he gave a detailed description of the land, how his father acquired it in 1920 from the Odionwere of Ora who was the representative of the Oba, farmed on the land from 1920 to 1993 when he died and how he inherited the same from his father. In addition to this oral evidence, he tendered a litigation survey plan. This evidence was not debunked by the Respondent who claimed that for that length of time, the Respondent’s father was merely given the land for farming even when there is no evidence of rent or any form of tribute. The learned trial Judge in my view was right to have believed the evidence of the Respondent and found that on the balance of probability, the same outweighed the evidence of the Appellants on the title of the land in dispute. I therefore agree with the trial Court that the Respondent established his title to the disputed land with credible and cogent evidence of traditional history.

​On the argument of the Appellant that the trial Court erred in law when it held that the Respondent proved his title through long possession when in fact the Respondent did not rely on long possession in proving his title; The position of the law is settled that a Claimant may rely on both traditional history and acts of ownership in proof of his title. Where he fails on the former, he may well succeed on the latter. See: BALOGUN & ORS V. AKANJI & ORS (2005) LPELR-722(SC).

I see from the record of proceedings, particularly at page 92 of the record of proceedings where the Respondent averred in his amended statement of claim that his father had been in actual and effective undisturbed possession of the land since 1920 to 1993 when he died and he (the Respondent) appointed Mr. Daniel as his caretaker to farm on the land and has been on the land since that 1993 to 2011. Therefore, I fail to agree with the learned counsel for the Appellants that the Respondent did not rely on long possession in prove of his title. I resolve issues 1 and 2 in favour of the Respondent.

​In conclusion, I find that the Respondent has proved his title to the land through both traditional history and long exclusive possession. I find no merit in this appeal and the same is hereby dismissed. The judgment of the High Court of Edo State in Suit No. B/36/2012, delivered by Edodo-Eruaga, J. on 14th February, 2016 is hereby affirmed. I make no order as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. I am in complete agreement with his Lordship that the appeal is devoid of merit and deserves dismissal.

Whereas there is satisfactory evidence which the trial Court believed that the Respondent proved his title to the land through both traditional history and acts of long possession which Appellants conceded the Respondent who claimed that they gave the land on loan to the Respondent, failed to adduce cogent and credible evidence in proof of same. Where a party alleges in a land suit that the other party is a customary tenant, he must plead and prove the incidences of customary tenancy in that regard. The act of ownership must be satisfactorily established both in the pleadings and in the evidence adduced to establish same. See the case of Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 313 at pages 378-379 paras H-B, Oduaran v. Asarah (1972) 5 SC 272, Dada v. Bankole (2008) 5 NWLR (Pt.1079) 26.

​It is for this reason, and the detailed reasoning and conclusion in the lead judgment that I also dismiss this appeal.
I abide by the consequential orders made in the lead judgment.

ADEMOLA SAMUEL BOLA, J.C.A.: I had the privilege of reading in advance, the draft judgment read by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I am in complete agreement with her reasoning and conclusion as elucidated in the decision.

The evidence adduced by the Respondent at the lower Court reveals patently that he depended in the main on long possession as embedded in the evidence of traditional history adduced at the trial Court. The Respondent testified that his father had been in possession since 1920 till 1993. When he died and he (Respondent) appointed one Mr. Daniel as his caretaker to farm on the land from then till 2011. This is evidence of reliance on long possession to prove title. By reason of this, it is held that Respondent proved his case at the lower Court.

​Arising from the foregoing, this appeal lacks merit. It is accordingly dismissed. I abide by the consequential orders made by my Lord Uchechukwu Onyemenam, JCA.

Appearances:

E. O. Afolabi Esq., with him, Ehinon Okoh, Esq. and F. M. O. Ogbeide Esq. For Appellant(s)

B. O. Ojumah, Esq. with him, C. C. Okaaleke Esq. For Respondent(s)