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OBA JOHNSON OLATOMIDE & ANOR v. CHIEF (MRS.) FUNMILAYO IKUMUYILO & ORS (2019)

OBA JOHNSON OLATOMIDE & ANOR v. CHIEF (MRS.) FUNMILAYO IKUMUYILO & ORS

(2019)LCN/13728(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 31st day of July, 2019

CA/AK/267/2018

 

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

Between

1. OBA JOHNSON OLATOMIDE
2. JOSEPH OLADIPUPO Appellant(s)

AND

1. CHIEF (MRS.) FUNMILAYO IKUMUYILO
2. RAPHAEL FAFUSI
3. TEMIDAYO ADESANLU
(for themselves and on behalf of Dero family of Ore/Odigbo) Respondent(s)

RATIO

DEFINITION OF A “WRIT OF SUMMONS”

A Writ of Summons is a procedural form of originating process by which actions are initiated. The competence of such a process is thus, a non-negotiable pre-requisite for a valid claim. Therefore, where the process fails to comply with the requirement of law regarding its procedure in an action, the Court cannot assume jurisdiction over the action. For, a defective originating process cannot activate the Court?s jurisdiction. To put it in different words, a Writ of Summons like all other originating processes is the cornerstone of any action along with the proceedings predicated on such an action. See the cases of (1) Dr. Braithwaite v. Skye Bank Plc. (2012) 12 S.C. (Pt. 1) p. 1; (2) Okarika v. Samuel (2013) LPELR-19935 (SC); (3) Okpe v. Fan Milk Plc. & Anor. (2016) LPELR-42562 (SC); (4) Ladoja v. Ajimobi & Ors. (2016) LPELR-40658 (SC) and (5) Aturu & Ors. v. Ogidimo & Ors. (2015) LPELR-40281 (CA). On the point that the validity of an originating process is at the root and a condition precedent to the exercise of Court?s jurisdiction, the Apex Court re-stated the legal principle in the case of: Ladoja v. Ajimobi & Ors. (Supra), as follows:
It is expected as a matter of duty on the Court to have struck out the purported notices of Appeal which are deemed to constitute originating process. See Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521. Also the case of Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19 at 37 wherein this Court reaffirmed that ?an originating process whether writ of summons, originating summons or a notice of appeal must be valid to confer jurisdiction on a Court to adjudicate between parties on a subject matter in dispute between them. PER OMOLEYE, J.C.A.

DEFIITION OF A “JURISTIC PERSON”

This Court in the case of: FUT Minna & Ors. v. Okoli (2011) LPELR-9053 referred with approval to the earlier case of: Akas v. Manager (2001) 8 NWLR (Pt. 715) p. 436 at p. 444 where a ?juristic person? in law was defined as follows:
A juristic person is either a natural person in the sense of a human being of the requisite capacity or an entity created by the law which includes an incorporated body and special artificial being created by legislation and vested with the capacity to sue and be sued.
?Therefore, the main characteristic of a juristic person is the capacity to sue and be sued either personally or by representation. Hence, for an action to be imbued with life, it must have been commenced both by and indeed against jurist person(s). See the cases of: (1) Njemanze v. Shell BP, Port Harcourt (1966) Vol. 4 NSCC p. 6; (2) Njoku v. UAC Foods (1999) NWLR (Pt. 632) p. 557 at p. 546; (3) Maersk Line v. Addide Investment Ltd. (2002) 11 NWLR (Pt. 778) p.317 and (4) Obike Intl. Ltd. v. Ayi Teletronics Ltd. (2005) 15 NWLR (Pt. 948) p. 362. On the issue of the capacity of a party to initiate an action, the Apex Court in the case of: Maersk Line v. Addide Investments. Ltd. (Supra) restated the trite law in the following words:
The law is settled that a non-juristic person, generally, cannot sue or be sued. In Agbonmagbe Bank Ltd. v. General Manager G.B. Ollivant Ltd. & Ors. (1961) 1 All NLR 116; (1961) 2 SCNLR 317?. It was further held, that naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person. The Word Dictionary defines ?family? as, blood relations, people descended from a common ancestor and an association of people who share common beliefs or activities. Indeed in the case of: Idesoh & Anor. V. Ordia & Ors. (1997) 3 NWLR (Pt. 491) p. 17, the Supreme Court clearly refered to a family as a legal entity which is distinct and separate from the individual members that make up the family. PER OMOLEYE, J.C.A.

WHETHER OR NOT ANY MEMBER OF A FAMILY, IF THE HEAD OF FAMILY FAILS IN HIS DUTY, CAN INSTITUTE AN ACTION ON BEHALF OF THE FAMILY TO PROTECT THE FAMILY INTEREST IN A LAND

The law is now well established that any member of the family can, if the head of the family fails in his duty to protect family land, institute an action on behalf of the family to protect family interest in the land.
See also the cases of: (1) Animashawun v. Osuma & Ors. (1972) 1 ANLR p. 367; (2) Olowosago v. Adebanjo (1988) 9 S.C. p. 87; (3) Dadi v. Garba (1995) 8 NWLR (Pt. 411) p. 12; (4) Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) p. 149; (5) Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) p. 466; (6) Ojukwu v. Ojukwu (2008) 18 NWLR (Pt. 1119) p. 439 and (7) Unity Bank Plc v. Bouari (2008) 7 NWLR (Pt. 1086) p. 372. In the case of: Ojukwu v. Ojukwu (Supra) the Supreme Court per Ogbuagu, JSC (of blessed memory) succinctly restated the legal position as follows:
As to the further locus standi of the Appellant, it is now settled law that any member of a family, can sue to defend family property. See the case of Coker v. Oguntola & Ors (1985) 1 ANLR (Pt. 1) 278.
In other words, a member of the family, has a right and duty, to protect family property and therefore, has locus standi to institute an action in respect of any wrongdoing to his family, land or property. See the cases of Sogunle v. Akerele (1967) NMLR 58, 60; Ugwu v. Agbo (1971) 10 S.C. 27 at 40 and Alhaji Gegele v. Alhaji Layinka & 6 Ors (1993) 3 SCNJ 39 at 45 . PER OMOLEYE, J.C.A.

WHETHER OR NOT THE STATE OF PLEADINGS DETERMINES THE PARTY WHO HAS THE BURDEN OF PROOF

Therefore, it is valid law that the state of the pleadings materially determines the party who has the burden of proof. In essence, unlike the position in criminal cases where the burden of proof statically resides in the prosecution to establish the case brought against the defendant, the burden of proof in civil cases is not static on the plaintiff but it shifts from time to time depending on the pleadings of the parties. The law is equally settled that, in a criminal case or even in a civil case involving an imputation of crime, the standard of proof is proof beyond reasonable doubt, but in a civil case, the standard of proof is on the preponderance of evidence. In either case, the prosecution or plaintiff or claimant need not call every available piece of evidence or witness to prove its/his case. It is enough if sufficient credible evidence is adduced to discharge the burden of proof. Preponderance of evidence simply means, one side?s position outweighing the other side when put on the imaginary scale of justice which must be evenly held by the Judge. On these legal principles, see the cases of: (1) Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) p. 101 at p. 113; (2) Jiaza v. Bamgbose (1999) 7 NWLR (Pt. 610) 10 NWLR (Pt. 1202) p. 412; (3) Onwuka v. Omogui (1992) 3 SCNJ p. 98; (4) Akinkugbe v. E.H (Nig.) Ltd. (2008) 12 NWLR (Pt. 1098) p. 375; (5) Aliucha v. Elechi (2012) LPELR-7823 (SC) and (6) Ayorinde v. Sogunro (2012) LPELR ? 7808 (SC). PER OMOLEYE, J.C.A.

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State, Ore Judicial Division, sitting at Ondo per Adebusoye, J. (hereinafter referred to as ?the trial Court?) delivered on the 30th day of July, 2018 in Suit No. HOR/38/2011.

The Respondents herein who were plaintiffs at the trial Court sued the Appellants as defendants for declaration of title to an expanse of land situate at Ondo/Ore Road, Ore, One Hundred Million Naira general damages for trespass and perpetual injunction. Although the Appellants did not file a counter-claim, they equally laid claim to the ownership of the land in dispute.

The brief background facts of this matter from the perspective of the Respondents are that, the land in dispute was found by their progenitor, one Jomuleje, a hunter, warrior and famous herbalist. The said Jomuleje was said to have found and settled in other locations within Ondo and Edo States. As stated above, the land in dispute which is located in Ore, Ondo State was part of a large expanse of land given by Jomuleje to one Dero, his only child.

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The entire property was thereafter inherited by one Fako who was the only child of Dero. The land from the outset and till date is being cultivated for farming as joint family land, even after the demise of Fako and his six children, Seje, Kujebi, Akinrele, Aderele, Jigin and Fake who subsequently inherited the land. Hence, through various designated family heads, the family exercised rights of ownership of the land by giving out portions of it to organisations for public use and putting tenants thereon for farming purposes upon payment of tributes. The 1st Respondent is a granddaughter of Jingin, and the incumbent family head of the Dero family. That is, the 1st Respondent is the great-great granddaughter of Dero. The 2nd Respondent is a grandson of Seje and also great-great grandson of Dero. While the 3rd Respondent is a grandson of Akinrele and also great-great grandson of Dero. It is the position of the Respondents that, although portions of the larger expanse of land are ceded to members of the family, the general administration of it is that of the family head. Hence, the larger expanse of land not having been partitioned and shared, is still family

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land. As adverted to earlier on above, the 1st Respondent is the incumbent family head. However, the quiet enjoyment of the family land became breached sometime in July, 2011 when some people who claimed to be the agents of the 2nd Appellant at the behest of the 1st Appellant entered the disputed portion of land therein and destroyed the economic and food crops of the Respondents and some of their tenants? on it. The Respondents initially reported the alleged unlawful acts to the Ondo Area Command of the Nigeria Police and later filed the suit the subject of this appeal at the trial Court against the Appellants. That despite the steps taken by the Respondents, the Appellants have continued to destroy the crops on the land and even alienated some portions of it.

The said suit of the Respondents against the Appellants was instituted for themselves and as representatives of the Dero family. Therefore, vide their Amended Writ of Summons and Amended Statement of Claim, dated and filed on the 23rd of May, 2017, the Respondents claimed against the Appellants jointly and severally as follows:
(a) Declaration that members of the Plaintiffs?

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family are the persons entitled to the grant of Statutory Right of Occupancy in respect of the land situate, lying and being at Ondo/Ore Road, Behind Dumez, off Ore/Lagaos Express Road, Ore; and which land is better and properly described and edged red on Dispute Survey Plan No. OD/520/2014/DS0001 drawn by High Chief J. A. A. Fagbamiye (Licensed Surveyor) dated the 20th day of October, 2014.
(b) N100, 000,000.00 (One Hundred Million Naira) being General Damages for trespass committed by the Defendants on their said family land.
(c) Perpetual Injunction restraining the Defendants, their servants, agents, privies and those claiming through or under them from committing further acts of trespass or lay any claim whatsoever to the piece of land described in relief (a) above.

After the exchange of pleadings along with other preliminary essentials by the parties in compliance with the rules of the trial Court, the suit went to trial. In the bid to establish their claims, the Respondents fielded five witnesses and tendered in evidence seven documents marked Exhibits A, B, C, D, E1 to E4, F and G.

In defence of the action, the Appellants called

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three witnesses and tendered a sole document in evidence. The document was marked Exhibit H, a Preliminary Agreement dated 25th of June, 1976.

At the closure of the parties? cases, the written addresses of their respective counsel were ordered, filed, exchanged and adopted in substantiation of their varied stances in the action.

In the considered judgment of the trial Court delivered on 30th of July, 2018, the trial Court held that the Respondents had proved their case on the balance of probability and preponderance of evidence based on traditional evidence and various acts of ownership. Hence, judgment was entered in favour of the Respondents, thereby granting reliefs one and three claimed by them. In respect of relief two, the sum of Two Hundred and Fifty Thousand Naira general damages and the sum of Twenty Thousand Naira costs were awarded in favour of the Respondents and against the Appellants.
?
The Appellants peeved about the said judgment of the trial Court filed this appeal against it to this Court. The Appellants? Notice of Appeal, dated 6th of August, 2018 filed on 7th August, 2018 made up of four grounds of appeal, is

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contained in pages 218 to 222 of the main record of appeal duly compiled and transmitted to this Court on 3rd of September, 2018. For quick referencing and good understanding, the four grounds of appeal shy of their particulars are hereunder set out as follows:
GROUND I
The learned trial Judge erred in law in assuming jurisdiction to determine the suit and this has occasioned miscarriage of justice.
GROUND II
The learned trial Judge erred in law in granting the reliefs claimed by the Claimants when from the pleadings filed, the Claimants lacked the requisite locus to initiate the suit ab initio.
GROUND III
The learned trial Judge erred in law when his Lordship held that ?The claimants have traced their root of title to the land in dispute, which forms part of a vast area of land, to one Jomuleje, as their progenitor, who settled at Ogbe and later acquired the said vast land comprising the land in dispute.? And this has occasioned miscarriage of justice.
GROUND IV
The trial Court erred in law when his Lordship held that: ?The location of the land in dispute is no doubt settled and what might have posed

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some problems would probably have been the area or size of the land being claimed by the claimants and this also has been put to rest by the production of Exhibit F, the Dispute Survey Plan.? And this has occasioned miscarriage of justice.

In deference to the rules of practice of this Court, the parties filed and exchanged briefs of argument in affirmation of their opposing positions in the appeal.

The learned counsel for the Appellants, Mr. Akinyemi Omoware of the law firm of Fasakin & Fasakin Chambers settled the briefs of the Appellants. The main Appellants? Brief of Argument dated the 19th day of September, 2018 was filed on the same date. In it, the three issues redacted for determination from the four grounds of appeal read as follows:
1. Whether the trial Court has jurisdiction to entertain the Respondents? suit, the Respondents having not shown legal capacity and competence to institute the action as constituted?
2. Whether considering the pleadings and evidence placed on records, the Respondents established their root of title to the disputed land as required by law?
3. Whether considering the

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declarative and injunctive reliefs claimed by the Respondents, the pleadings and evidence led by them, the Respondents sufficiently and accurately established the portion of land claimed to warrant the grant of same by the trial Court?

Upon the service of the Respondents? brief of argument on the Appellants, the Appellants? counsel further filed the Appellants? Reply Brief. It is dated and was filed on 12th of November, 2018.

On the other part, the Respondents? counsel, Aderemi A. Suleiman Esq., of the law firm of Akintoba, Suleiman & Co. settled the Respondents? brief. The Respondents? Brief of Argument is dated and was filed on 30th of October, 2018. In it, the three issues identified by the Appellants for the resolution of the appeal were adopted by the Respondents. The said three issues have already been reproduced in the preceding paragraph.

?At the oral hearing of this appeal on the 7th day of March, 2019 by this Court, the parties? counsel identified and adopted the parties? respective briefs of argument in support of their opposing stances and urged upon this Court accordingly.

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Even though I consider the three issues redacted by the Appellants and adopted by the Respondents quite apt for the resolution of the grouse of the Appellants about the judgment of the trial Court, issues two and three being interwoven shall be taken and resolved together. I will now proceed to consider the said issues seriatim, that is, issue one and then issues two and three together. Issue one will be resolved first as it bears on the competence of the action of the Respondents against the Appellants, concomitantly the jurisdiction of the trial Court to adjudicate upon same and by extension the effect of these on the proceedings including the judgment of the trial Court.
ISSUE ONE
Whether the trial Court has jurisdiction to entertain the Respondents? suit, the Respondents having not shown legal capacity and competence to institute the action as constituted?

APPELLANTS? COUNSEL?S SUBMISSIONS
The learned counsel for the Appellants contended that, fundamentally, the trial Court lacks the adjudicatory jurisdiction over the action of the Respondents the subject of this appeal. According to him, this contention is

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two-pronged. On the first part, he opined that, the Respondents have no legal capacity and competence to institute the action. For the Dero family which the three named Respondents purportedly represent in the action is not a juristic person. The law is trite that a non-juristic person has no competence to commence or be represented in an action. Hence, the defect, in the Respondents? capacity as contained in both their original originating Writ of Summons and Amended Writ of Summons and all other subsequent processes, is essential to the competence of their action and consequently robs the trial Court of jurisdiction to entertain the action. On this position, counsel referred to the cases of: (1) Lion of Africa Co. Ltd. v. Esan (1999) 8 NWLR (Pt. 614) p. 197; (2) Nduka v. Ezenwaku (2001) 6 NWLR (Pt. 709) p. 494; (3) Kida v. Ogunmola (2006) 6 S.C. p. 147 and (4) Femi Ojo v. Sehinde Fadeyi & Anor. (Unreported Appeal No. CA/AK/97/2012) Delivered on 19/04/2018. In other words, the incapacity of the Respondents and incompetence of the originating process rob the trial Court of competence to exercise adjudicatory jurisdiction over the action of the

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Respondents against the Appellants. Once a Court has no jurisdiction to hear a case and it goes ahead to hear the case, no matter how flawlessly conducted, the entire proceedings would be a nullity and liable to be struck out. For this legal position reliance was placed on the cases of: (1) Barclay?s Bank of Nig. v. C.B.N. (1976) 6 S.C. p. 175; (2) Oloba v. Akereja (1988) 7 S.C. (Reprint) (Pt. 1) p. 1; (3) A.-G., Lagos State v. Dosunmu (1989) 6 S.C. (Pt. II) p. 1 and (4) Usman Dan Fodio University v. Kraus Thompson Organization Ltd. (2001) 15 NWLR (Pt. 736) p. 305.

In counsel?s opinion, the instant matter being on all fours with the cases of: (1) Nduka v. Ezenwaku and (2) Femi Ojo v. Sehinde Fadeyi (Both Supra), the proceedings of the trial Court including the judgment under review are liable to be struck out. He urged upon this Court to set aside the said judgment. Also he urged that the action of the Respondents filed at the trial Court should be dismissed for want of Respondents? capacity to institute same on the authority of: Abu v. Ogli (1995) 8 NWLR (Pt. 413) p. 353.

On the second prong of this issue, it was submitted in

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favour of the Appellants that, the Respondents have no ?locus standi? to initiate the action the subject of this appeal. For the land in dispute is no longer the property of the larger Dero family because same had been allotted to the Jigin Stock of the family.

RESPONDENTS? COUNSEL?S SUBMISSIONS
It was argued for the Respondents that the Appellants were well aware that the action of the Respondents against them was fought in the Respondents? respective personal capacities as well as for and on behalf of the Dero family. This is manifest in the endorsement on the Respondents? Amended Writ of Summons and averments in the Amended Statement of Claim. Hence, the Appellants? contention as to the competence of the Writ of Summons borders on mere technicality, which the Courts are wont to disallow. For the Courts would no longer allow technicalities to prevail over the need to do substantial justice in matters before them. Reliance was placed in this regard to the cases of: (1) Yusuf v. Adegoke (2008) Vol. 157 L.R.C.N. p. 172 at p. 212; (2) Henry Odeh v. Federal Republic of Nigeria (2008) Vol. 165 L.R.C.N. p.12 at

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p. 50; (3) Ejezie & Anor. v. Anuwu & Ors. (2008) Vol. 165 L.R.C.N. p. 119 at p. 139 and (4) Akpan v. Bob (2010) Vol. 193 L.R.C.N. p. 78 at p. 182. What is more, the law is trite that, even where the capacity in which a party instituted or defended an action was not stated in his pleadings, that will not stop or prevent the Court from giving judgment in the capacity in which the party fought or defended the action at trial.
?
On the issue of the ?locus standi? of the Respondents, the learned counsel submitted that, the portion of land earlier granted to the 1st Appellant?s family by the Jingin stock Respondents? family is distinct from the parcel of land in dispute in this matter. Furthermore, by the pleadings of and evidence adduced at trial by the Respondents, it is the assertion of the Respondents that, the entirety of the Dero family vast land including the portion ceded to the Jingin stock of the said family is under the management of the head of the Dero family in conjunction with the other principal members of the said family. For the entirety of the Dero family land has always remained unpartitioned. Hence, although the

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land in dispute was ceded to the Jingin stock of the Dero family, the former is not the exclusive owners of the said land. Rather, the land is only for the Jingin stock?s right of usage and enjoyment as members of the larger Dero family. For the Jingin stock has never claimed exclusive possession of the land ceded to it. As for example, prior to the allocation of some portions of land to Dumez, N.N.P.C. and N.U.R.T.W. by the Jingin stock, the approval of the larger Dero family was sought and obtained. Also, the purported sale of another portion of the Dero family land by one Pa Aderoluka a member of the Jingin stock to one Alhaji Raufu Orelope without the prior approval of the family was successfully challenged in court by the Dero family. Hence, in support of the foregoing assertions, the 1st Respondents who is from the Jingin stock and head of the corporate Dero family was the 1st plaintiff in the action the subject of this appeal.
?
The learned counsel for the Respondents urged upon this Court to hold that, the Respondents are seized of the requisite ?locus standi? to institute this matter and as representatives of the Dero family, the

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action filed by them against the Appellants at the trial Court was competently commenced vide their Amended Writ of Summons and Amended Statement of Claim.

RESOLUTION
As stated at the debut of this issue, the challenge by the Appellants of the jurisdictional competence of the trial Court over the action filed by the Respondents against the Appellants thereat is two-pronged. The Appellants have contended that, the initiating process thereof, that is, both the original Writ of Summons and Amended Writ of Summons are defective because of the incompetence of the Respondents as plaintiffs in their action against the Appellants.

?A Writ of Summons is a procedural form of originating process by which actions are initiated. The competence of such a process is thus, a non-negotiable pre-requisite for a valid claim. Therefore, where the process fails to comply with the requirement of law regarding its procedure in an action, the Court cannot assume jurisdiction over the action. For, a defective originating process cannot activate the Court?s jurisdiction. To put it in different words, a Writ of Summons like all other originating processes is the

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cornerstone of any action along with the proceedings predicated on such an action. See the cases of (1) Dr. Braithwaite v. Skye Bank Plc. (2012) 12 S.C. (Pt. 1) p. 1; (2) Okarika v. Samuel (2013) LPELR-19935 (SC); (3) Okpe v. Fan Milk Plc. & Anor. (2016) LPELR-42562 (SC); (4) Ladoja v. Ajimobi & Ors. (2016) LPELR-40658 (SC) and (5) Aturu & Ors. v. Ogidimo & Ors. (2015) LPELR-40281 (CA). On the point that the validity of an originating process is at the root and a condition precedent to the exercise of Court?s jurisdiction, the Apex Court re-stated the legal principle in the case of: Ladoja v. Ajimobi & Ors. (Supra), as follows:
It is expected as a matter of duty on the Court to have struck out the purported notices of Appeal which are deemed to constitute originating process. See Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521. Also the case of Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19 at 37 wherein this Court reaffirmed that ?an originating process whether writ of summons, originating summons or a notice of appeal must be valid to confer jurisdiction on a Court to adjudicate between parties on a subject matter in dispute

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between them?
Therefore, the correct position of the law is as stated by the Appellants? counsel that, the validity of a Writ of Summons as an originating process goes to the root of the competence of both the action itself and Court to adjudicate upon it. For an invalid originating process presupposes a failure to fulfil a condition precedent to the exercise of the Court?s jurisdiction. In such a situation, the Court has the legally bounden duty to strike out the action commenced thereby. As such process is irredeemably spoilt, D.O.A, that is, Dead On Arrival, at the point of the purported filing and cannot even be cured by an amendment. See the cases of: (1) Madukolu v. Nkemdilim (1962) 1 All NLR p. 587; (2) Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) p. 267; (3) Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) p. 285; (4) N.N.B. v. Denclag (2005) 4 NWLR (Pt. 916) p. 549 at p. 574; (5) Ministry of Works and Transport, Adamawa State & Ors. v. Yakubu & Anor. (2013) 6 NWLR

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(Pt. 1351) p. 481 at p. 496; and (6) Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) p. 570.

Now on the first prong of the Appellants? contention, it is the standpoint of the Appellants that, the Respondents lack the capacity to initiate against them the action the subject of this appeal, the Respondents having commenced the action as representatives of the Dero family of Ore, Ondo State, who according to the Appellants? counsel is not a juristic person and thus cannot neither sue nor be represented in an action. This Court in the case of: FUT Minna & Ors. v. Okoli (2011) LPELR-9053 referred with approval to the earlier case of: Akas v. Manager (2001) 8 NWLR (Pt. 715) p. 436 at p. 444 where a ?juristic person? in law was defined as follows:
A juristic person is either a natural person in the sense of a human being of the requisite capacity or an entity created by the law which includes an incorporated body and special artificial being created by legislation and vested with the capacity to sue and be sued.
?Therefore, the main characteristic of a juristic person is the capacity to sue and be sued either

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personally or by representation. Hence, for an action to be imbued with life, it must have been commenced both by and indeed against jurist person(s). See the cases of: (1) Njemanze v. Shell BP, Port Harcourt (1966) Vol. 4 NSCC p. 6; (2) Njoku v. UAC Foods (1999) NWLR (Pt. 632) p. 557 at p. 546; (3) Maersk Line v. Addide Investment Ltd. (2002) 11 NWLR (Pt. 778) p.317 and (4) Obike Intl. Ltd. v. Ayi Teletronics Ltd. (2005) 15 NWLR (Pt. 948) p. 362. On the issue of the capacity of a party to initiate an action, the Apex Court in the case of: Maersk Line v. Addide Investments. Ltd. (Supra) restated the trite law in the following words:
The law is settled that a non-juristic person, generally, cannot sue or be sued. In Agbonmagbe Bank Ltd. v. General Manager G.B. Ollivant Ltd. & Ors. (1961) 1 All NLR 116; (1961) 2 SCNLR 317?. It was further held, that naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person. The Word Dictionary defines ?family? as, blood relations, people descended from a common ancestor and an association of people who share common beliefs or activities.

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Indeed in the case of: Idesoh & Anor. V. Ordia & Ors. (1997) 3 NWLR (Pt. 491) p. 17, the Supreme Court clearly refered to a family as a legal entity which is distinct and separate from the individual members that make up the family. See also the case of: Nwankwo & Ors. v. Nwafor & Anor. (2014) LPELR-24116 where this Court per Agim, J.C.A. succinctly stated on this discourse as follows:
The family is a social unit consisting of natural persons having a common ancestry and relationship which customary law vests with the features of a corporate entity such as an existence separate from that of its members and the right to own and alienate land as well as incur and discharge obligations in respect of such lands and the juristic personality to sue and be sued through its authorised representatives.
A family can thence be likened though not to a corporation ?strictu sensu? but to a quasi corporation. Therefore in law, the Respondents? Dero family is a juristic personality which has capacity to sue, be sued and be represented in both capacities. Hence, the Dero family can be

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represented by any of its members either to initiate an action as in the instant matter or in defending an action. I have read the three earlier cases of this Court relied on by the Appellants. The case of: Lion of Africa Co. Ltd. v. Esan (Supra) is on the question, whether a couple, that is, Mr. & Mrs., is a legal entity with capacity to sue and be sued. The question was answered in the negative. Hence, that decision does not advance the argument of the Appellants regarding the capacity of a family to sue and be sued. In the case of: (1) Nduka v. Ezenwaku (Supra) per Fabiyi, J.C.A. (as he then was, later J.S.C. and now Rtd.), which was relied upon by Ndukwe ? Anyanwu, J.C.A. in the case of: Femi Ojo v. Sehinde Fadeyi & Anor. (Supra), it was held that, Ezenwaku family, which was represented by the Respondents in the former case, not being a juristic person cannot sue or be sued or be represented in an action. In my very humble but firm view and with due deference to their Lordships, the two decisions were given ?per incuriam?, in view of the well established position of the law as clearly laid down by the Apex Court way back and

21

decades before the decision in: Nduka v. Ezenwaku (Supra) was given. I refer in this regard to the case of: Agbo & Ors. v. Ugwu & & Anor. (1977) LPELR-241 (SC) where the Supreme Court per Obaseki; JSC (of blessed memory) pointedly held that:
The law is now well established that any member of the family can, if the head of the family fails in his duty to protect family land, institute an action on behalf of the family to protect family interest in the land.
See also the cases of: (1) Animashawun v. Osuma & Ors. (1972) 1 ANLR p. 367; (2) Olowosago v. Adebanjo (1988) 9 S.C. p. 87; (3) Dadi v. Garba (1995) 8 NWLR (Pt. 411) p. 12; (4) Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) p. 149; (5) Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) p. 466; (6) Ojukwu v. Ojukwu (2008) 18 NWLR (Pt. 1119) p. 439 and (7) Unity Bank Plc v. Bouari (2008) 7 NWLR (Pt. 1086) p. 372. In the case of: Ojukwu v. Ojukwu (Supra) the Supreme Court per Ogbuagu, JSC (of blessed memory) succinctly restated the legal position as follows:
As to the further locus standi of the Appellant, it is now settled law that any member of a family, can sue to defend family

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property. See the case of Coker v. Oguntola & Ors (1985) 1 ANLR (Pt. 1) 278.
In other words, a member of the family, has a right and duty, to protect family property and therefore, has locus standi to institute an action in respect of any wrongdoing to his family, land or property. See the cases of Sogunle v. Akerele (1967) NMLR 58, 60; Ugwu v. Agbo (1971) 10 S.C. 27 at 40 and Alhaji Gegele v. Alhaji Layinka & 6 Ors (1993) 3 SCNJ 39 at 45 ?
Also in an earlier Apex Court decision of: Ladejobi v. Oguntayo (Supra) Uwaifo, JSC (Rtd.) concisely stated that:
The law is that a person has the right to protect his family interest in a property or title and can sue for himself and on behalf of the family in a representative capacity. See Sogunle v. Akerele (1967) NMLR 58; Nta v. Anigbo (1972) 5 SC 156; Melifonwu v. Egbuji (1982) 9 SC 145; Atanda v. Olanrewaju (1988) 4 NWLR (Pt. 89) 394. In the present case, the plaintiffs have exercised that right by bringing this

23

action. There must be proof of substantial opposition in order to deprive them of their representative capacity. This is done by motion and not by way of defence. See Russian Commercial and Industrial Bank v. Comptoir (1925) AC 112 at 130. In the present case, the three named Respondents sued for themselves and on behalf of the Dero family of Ore. Indeed the 1st Respondent is the incumbent head of the Dero family and the other two Respondents are members of two of the stocks of the family. There is no opposition to the representation of the three Respondents by any member of the Dero family, the only way the Respondents? capacity can be challenged. The Appellants are not members of the Dero family so as to be vested with the power to put forth that kind of challenge in their defence to the action filed by the Respondents against them. The authority can only be opposed by way of motion which must first go to trial and be determined.?
On the Appellants? strenuous argument that the land in dispute belongs exclusively to the Jigin stock and has been alienated is still of no moment. The Respondents pleaded and established by evidence that, the

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entirety of the Dero family?s landed property remains indivisible having not been partitioned amongst its individual members. What is more, the Respondents equally pleaded and the trial Court after the evaluation and ascription of probative value thereto found, and I agree with the sound legal reasoning, that not only has the Dero family land not been partitioned and remains family land, the parcel of land conceded to the Jigin stocks of the family, part of which was said to have been let out is quite distinct from the land in dispute.
In sum and sequel to the above analysis, I must depart from the earlier decisions of this Court in the cases of: (1) Nduka v. Ezenwaku and (2) Femi Ojo v. Sehinde Fadeyi (Both Supra). I hold that, in law the Respondents are imbued with capacity to sue for themselves and on behalf of their Dero family of Ore and thence possess ?locus standi? to institute the action the subject of this appeal against the Appellants in their bid to protect their interest of the said family in the land in dispute. The Respondents have duly exercised their right in law by initiating the action against the Appellants.

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On the whole, it is apparent that issue one in its entirety is a failure and hereby resolved against the Appellants and in favour of the Respondents.

ISSUES TWO AND THREE
Whether considering the pleadings and evidence placed on records, the Respondents established their root of title to the disputed land as required by law?
Whether considering the declarative and injunctive reliefs claimed by the Respondents, the pleadings and evidence led by them, the Respondents sufficiently and accurately established the portion of land claimed to warrant the grant of same by the trial Court?

SUBMISSIONS OF APPELLANTS? COUNSEL
The learned counsel for the Appellants opined that the Respondents failed woefully to establish their root of title to the disputed land as required by law. For the Respondents having made traditional history the basis of proof of their claim of title to the land in dispute, it is incumbent on them to plead and prove such facts as, who found the land, how the land was found and the particulars of the intervening owners through whom they claim in order to succeed. The said three conditions are conjunctive. In this wise,

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reliance was placed on the cases of: (1) Ibokolo v. Tariah (2012) All FWLR (Pt. 653) p. 1928 at pgs. 1951 ? 1952 paras. H-B; (2) Oyekan v. Oyewale (2012) All FWLR (Pt. 623) p. 1991 at pgs. 2005-2006 and (3) Ukaegbu v. Nwololo (2009) 3 NWLR (Pt. 1127) p. 194 at p. 220. In the opinion of counsel, there are no facts on records on how the land in dispute was acquired by Jomuleje, and how it was found to warrant the transfer of same through succession to the Respondents by Jomuleje. The Respondents having failed to successfully proof their root of title to the land in dispute, the foundation to their claim has been eroded and the consequence of this is that the trial Court ought to have dismissed the Respondents? suit. In the circumstances, there was no burden on the Appellants to disprove the claim having not filed a counterclaim. On this stance, reference was made to the cases of: (1) Gbadamosi v. Dairo (2007) All FWLR (Pt. 357) p. 812 and (2) Akinduro v. Alaya (2007) All FWLR (Pt. 381) p. 1653. For the trite principle of law is that where there is claim for declaration of title to land and injunction, the Claimant must rely on the strength of his

27

case and not on the weakness of the Defendant?s case, save where the Defendant?s case lends support to the case of the Claimant and in which the latter circumstance, the Claimant will gain an advantage. Reliance was placed on this legal principle on the cases of: (1) Usman v. Garke (1999) 1 NWLR (Pt. 587) p. 466; (2) Woluchem v. Gudi (1981) 5 SC p. 281 and (3) Oyeniyi v. Akinkugbe (2010) 4 NWLR (Pt. 1184) p. 265 at pgs. 284-285.

Furthermore, on declarative and injunctive reliefs sought, the pleadings and evidence led by the Respondents did not sufficiently and accurately establish the identity of the portion of the land claimed to warrant the grant of same. For apart from CW1 and CW2 who gave contradictory boundaries of the land claimed, no witness of the Respondents knows and restated the boundaries of the land in dispute. The evidence of CW1 in respect of the boundaries of the land in dispute is different from the pleaded boundaries of the land in dispute and therefore contradictory. The evidence of CW2 though in accord with pleaded boundaries, it differs from the boundaries of the portion of land claimed as verged Red in Exhibit F. What

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is more, the Appellants, in their Statement of Defence denied knowledge of the land claimed. The law is well established that the identity of a disputed portion of land in an action for declaration of title to the land is very fundamental. More importantly, where the defendant disputes specifically either the area or the location or the features shown in the claimant?s plan, then the identity of the land becomes an issue to be tried and it becomes imperative for the claimant to definitively establish the identity of the land. On this legal position, reference was made to the cases of: (1) Ogedengbe v. Balogun (2007) All FWLR (Pt. 366) p. 615 and (2) Gbadamosi v. Dairo (2007) All FWLR (Pt. 357) p. 825.

SUBMISSIONS OF RESPONDENTS? COUNSEL
?The learned counsel for the Respondents argued that it is the Respondents? claim that, the Dero family is one of the four recognized land owning families in Ore/Odigbo and that they inherited vast parcel of land from their ancestor named Aderotimi popularly called or shortened to ?Dero? many years ago. Dero became the owner through gift from her father named Jomuleje. The

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Respondents have successfully proved by evidence upheld by the trial Court as credible and cogent the intervening owners from Dero to themselves. What is more, the evidence of the Appellants to the effect that Jomuleje was granted land by Orunsero to build house and for farming goes to support the Respondents? claim that Jomuleje acquired land and the Respondents are entitled to rely on same to prove their case. On these positions, reliance was placed on the cases of: (1) Dim vs. Enemuo (2009) Vol. 172 L.R.C.N. p. 206 at p. 224; (2) Godfrey Anukam vs. Felix Anukam (2008) Vol. 159 L.R.C.N. p. 33 at p. 48; (3) Elf Petroleum Nig. Ltd. Vs. Umah & 4 Ors (2018) Vol. 276 L.R.C.N. p. 1 at p. 25 and (4) Usman Vs. Garke (1999) 1 NWLR (Pt. 587) p. 466.

On the issue of the identity of the disputed portion of land, counsel canvassed that, from the state of the pleadings of the parties and their evidence on record, the identity of the land claimed is no longer in issue.

?For the evidence of the fact that the land in dispute is well known to the parties can be found in the evidence of the witnesses who testified for the Appellants at the

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trial. In support of this assertion is the evidence of DW2 a tenant of the 1st Appellant?s. More importantly, are the evidence of the 1st Appellant and DW1 a member of the 1st Appellant?s family. The law is trite that where the land in dispute is found to be well known to the parties especially a defendant as in the instant case, the issue of identity is no longer in doubt and as such does not require proof. On this legal stance, reference was made to the cases of: Nwokidu Vs. Okanu (2010) Vol. 183 L.R.C.N. p. 114 at p. 192 and (2) Bosinde Ayuya & 4 Ors Vs. Chief Naghan Yonrin & 3 Ors (2011) Vol. 199 L.R.C.N. p. 143 at pgs. 174 – 175.

It was contended for the Respondents that the Appellants have not shown in any way how the findings of the learned trial Judge being attacked by them was wrong. No wonder the said findings were not specifically appealed against. The Appellants are thence bound by the said findings. Regarding this standpoint, reliance was placed on the cases of: (1) Onafowokan & Ors. Vs. Wema Bank & Ors. (2010) Vol. 200 L.R.C.N. p. 33 at p. 64; (2) Asogwa Vs. PDP & Ors (2013) Vol. 216 L.R.C.N. p.

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161 at p. 226 and (3) Adeyeye Vs The State (2013) Vol. 218 L.R.C.N (Pt. 1) p. 26 at p. 64.

RESOLUTION
The pith of the instant head is, whether the evidence adduced by the Respondents as plaintiffs at the trial Court in their bid to establish their claim against the Appellants was strong and unequivocal as to entitle them to a declaration of title to the disputed land as held by the learned trial Judge.

I consider it apt for starters to reiterate the standing position of the law as long applied and pronounced upon by both the Apex Court and this Court regarding claims for declaration of title in land matters. In civil cases of which the instant case is a specie, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings ? See Section 137(1) of the Evidence Act. If such a party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established, the burden lies on the party against whom

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judgment would be given if no more evidence were adduced and successively, until all the issues in the pleadings have been dealt with. Hence, the burden of first proving a fact is usually on the plaintiff who brought the action, though not invariably so. There are times when the burden is on the defendant, depending on the state of the pleadings.
Therefore, it is valid law that the state of the pleadings materially determines the party who has the burden of proof. In essence, unlike the position in criminal cases where the burden of proof statically resides in the prosecution to establish the case brought against the defendant, the burden of proof in civil cases is not static on the plaintiff but it shifts from time to time depending on the pleadings of the parties. The law is equally settled that, in a criminal case or even in a civil case involving an imputation of crime, the standard of proof is proof beyond reasonable doubt, but in a civil case, the standard of proof is on the preponderance of evidence. In either case, the prosecution or plaintiff or claimant need not call every available piece of evidence or witness to prove its/his case. It is

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enough if sufficient credible evidence is adduced to discharge the burden of proof. Preponderance of evidence simply means, one side?s position outweighing the other side when put on the imaginary scale of justice which must be evenly held by the Judge. On these legal principles, see the cases of: (1) Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) p. 101 at p. 113; (2) Jiaza v. Bamgbose (1999) 7 NWLR (Pt. 610) 10 NWLR (Pt. 1202) p. 412; (3) Onwuka v. Omogui (1992) 3 SCNJ p. 98; (4) Akinkugbe v. E.H (Nig.) Ltd. (2008) 12 NWLR (Pt. 1098) p. 375; (5) Aliucha v. Elechi (2012) LPELR-7823 (SC) and (6) Ayorinde v. Sogunro (2012) LPELR ? 7808 (SC).
However, the requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the Respondents herein, indeed whether of title to land or not, is quite stringent, for the plaintiff must satisfy the Court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief sought. It is the law that a Court does not grant a declaration on admission of parties because the Court must be satisfied that the plaintiff, on the

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strength of his own evidence, not the weakness of the evidence of the defendant, is entitled to the relief claimed. See the cases of: (1) Woluchem v. Gudi (1981) 5 SC p. 291; (2) Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) p. 299 at p. 318 and (3) Ayanru v. Mandilas Ltd. (2007) 10 NWLR (Pt. 1043) p. 462. It is also now well settled that there are five ways of proving ownership of land, each of which suffices to establish title to a piece or quantity of land in dispute. See the case of: Odife v. Aniemeka (1992) 7 SCNJ p. 337. In the ?locus classicus? case of: Idundun v. Okumagba (1976) 9/10 SC p. 227 at pgs. 246 to 250, the Apex Court per Fatayi-Williams, JSC, (of blessed memory), laid down the law as follows:
– Firstly, ownership of land may be proved by traditional evidence. See the case of: Odife v. Aniemeka (1992) 7 SCNJ p. 337.
– Secondly, ownership of land may be proved by production of documents of title which must be fully authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents

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twenty years old or more, at the date of the contract. See Section 129 of the Evidence Act and the case of: Johnson v. Lawanson (1997) 1 All NLR p. 56.
– Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it, are also evidence of ownership, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner. See the case of: Ekpo v. Ita 11 NLC p. 68.
– Fourthly, acts of long possession and enjoyment of the land may also be ?prima facie? evidence of ownership of the particular piece or quantity of land with reference to which such acts are done. See Section 46 of the Evidence Act. Such acts of long possession in a claim of declaration of title (as distinct from a claim for trespass) are a weapon more of defence than of offence; moreover under Section 146 of the Evidence Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title. See the case of: Da Costa v. Ikomi (1968) 1 All

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NWLR p. 394 at p. 398.
– Fifthly, 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, may also rank as a means of proving ownership of the land in dispute. See Section 46 of the Evidence Act.
See also the cases of: (1) Abinabina v. Enyimadu (1953) AC p. 207 at pgs. 215-216; (2) Bankole v. Pelu (1991) 8 NWLR (Pt. 211) p. 523; (3) Okonji v. Njokanma (1999) 12 S.C. (Pt. II) p. 150; (4) Irolo v. Uka (2002) 14 NWLR (Pt. 786) p. 195; (5) Kazeem v. Mosaku (2007) 7 S.C. p. 22 and (6) Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) p. 374. In the case of: Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) p. 361, the Supreme Court, on the issue of who bears the burden and standard of proof in declaratory reliefs, restated the age-long legal principle as follows:
The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the plaintiff in

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establishing Declaratory Reliefs to the satisfaction of the Court is quite heavy in the sense that such Declaratory Reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. In other words, declarations of right as sought by the plaintiffs/respondents in their first relief against the defendant/appellant in the present case, cannot be made on admission or in default of pleading by the defendant not to talk of reliance on the evidence of the defendant witnesses. See Wallersteiner v. Moir (1974) 3 All ER 217 at 251, where Bukley, L. J., said:
It has always been my experience, and I believe it to be a practice of long standing, that the Court does not make declarations of right either on admission or in default of pleading… but only if the court was satisfied by evidence.
See also Metzger v. Department of Health and Social Security (1977) 3 All ER 444 at 451. This statement of the law was adopted by this Court in Vincent I. Bello v. Magnus Eweka (1981) 1 SC. 101; (1981) 1 SC. (Reprint) 63 and also applied in Motunwase v. Sorungbe

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(1988) 12 S.C (Pt. 1) 130; (1988) 5 NWLR (Pt. 92) p. 90 at p. 102.
Therefore, in the instant case the onus is squarely on the Respondents to satisfy the trial Court by cogent and credible evidence to establish that they are entitled to the declaratory reliefs sought by them.

Applying the above set out statute and case laws to the instant matter, it is crystal clear that, in the bid to establish the claim of title to the disputed land and concomitantly damages for trespass and injunction against the Appellants, the Respondents in their pleadings and evidence adduced at trial, employed in the main the first of the five methods of proof laid down in the case of: Idundun v. Okumagba (supra) set out above, that is, proof by traditional evidence history.
The law is trite that where a party relies on traditional history to prove his title to land as in the instant matter, he must plead facts and lead cogent, credible, conclusive and satisfactory evidence in support thereof to prove:
(a) who found the land;
(b) how the land was found; and
(c) the particulars of the subsequent intervening owners of the land.

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?See the cases of: (1) Alli v. Alesinloye (2000) 4 SCNJ p. 264 at pgs. 284-285; (2) Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) p. 393; (3) Elegushi v. Oseni (2005) 14 NWLR (Pt. 945) p. 348 and (4) Orlu v. Onyeka (supra) at p. 493.

It should be noted straightaway that, the method of proof under discourse herein, that is, traditional history, has to do with the aggregate of past events passed down to living memory. In the circumstance, it is the narrative description and account beyond the living memory of the narrator, of who found and in what manner the land in dispute was found and the successive inheritors down to the claimants.
In the case of: Dike v. Obi Nzeka II (1986) 4 NWLR (Pt. 34) p. 144, the Supreme Court per Oputa, JSC (of Blessed Memory) at page 158, paras. F-G on the nature of traditional evidence pointedly held as follows:
What then is traditional history or traditional evidence? When is such evidence relevant? Traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such. Traditional evidence

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is a bit of ancient history, it is hearsay evidence only elevated to the status of admissible evidence by the statutory provision of Section 44 of the Evidence Act, Cap 62 of 1958, Laws of the Federation of Nigeria. This Section provides:
?S. 44: When the title to or interest in family or communal lands is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.”
Section 44 of the old and repealed Evidence Act is in ?pari materia? with Section 66 of the extant Evidence Act (Supra). Section 66 provides that: ?Where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is admissible.?

Upon due perusal of the record of appeal particularly the evidence adduced by the parties before the trial Court, I found that, to establish their title to the disputed land, the Respondents fielded five witnesses. The 1st and 3rd Respondents gave similar evidence as CW2 and CW1 respectively. As earlier on adverted to above in this judgment, the 1st Respondent/CW2 is the incumbent head of the

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Dero family. Both the 1st and 2nd Respondents gave evidence that their ancestor, Jomuleje who was a warrior, hunter and famous herbalist was the original founder of the land in dispute, amongst many others. That the disputed land is a portion of the vast parcel of land founded at Ore by Jomuleje and bequeathed to Dero who was one of his children, a female. Both Jomuleje and his daughter Dero lived and farmed on the land. On the death of Dero, the vast land was inherited by his only child Fako. Fako continued to live and farm on the land. Fako begot six children namely, Seje, Kujebi, Akinrele, Aderele, Jingin and Fako. All the children continued to settle, live and farm on the land. Seje was the grandfather of the 2nd Respondent. Akinrele was the grandfather of the 3rd Respondent. While Jingin was the great-grandfather of the 1st Respondent. Although the vast land has not been partitioned till date, the said six children of Dero occupied delineated portions of the vast land which has continued to administered by designated heads of the Dero family. The land in dispute falls within the portion occupied by Jingin, which in turn devolved on his own children, that

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is, Demolahan and others. Demolahan begot Akinola Akindejoye the father of the 1st Respondent. The Dero family has exercised various acts of ownership of the vast land, such as granting portions of it to tenants for farming purposes, outright sales, gifts and allocations to the community for public use as churches and schools. That one madam Diitan one of Jingin?s children was married to a principal member of the 1st Appellant?s family named Pa. Ogunsokane. Madam Diitan herself was a former head of the Dero family, hence at a time when her brother-in-law one Chief Ruwasin Lawrence Adebayo Temikotan late Olore of Ore needed land to cultivate, a portion of the larger land was granted to him with the consent of the principal members of the larger Dero family. Also, another of the children of Jingin, one Pa. Theophilus Aderoluka on the recommendation of Chief R.L.A. Temikotan, was involved in the sale of portions of the larger land to Dumez (Nig.) Ltd., N.N.P.C. and N.U.R.T.W. The said exercise of acts of ownership by the descendants of Dero family was buttressed by Exhibit A issued by Dumez (Nig.) Ltd. to Pa Theophilus Aderoluka of the Jingin stock in

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respect of an act of encroachment by the former.

Exhibit D is a purchase receipt/sale agreement executed by the same Theophilus Aderinluka and one Alhaji Raufu Orelope in respect of another portion of the larger Dero family land. While Exhibits E to E4 are farm cultivation agreements between the Respondents? Dero family and various customary tenants upon payments of traditional tribute known as ?Ishakole?. CW4 and CW5 are amongst such tenants, they gave evidence that they became the Respondents? tenants since 1984 and have occupied and farmed on the land without any hinderance until 2017 when the Appellants? agents entered the land to destroy the crops on the land, and claimed ownership of it.

The Respondents also tendered in evidence Exhibits B and C, the proceedings of two earlier actions between the Respondents? family and some individuals and in which the late father of the 1st Appellant and another member of the 1st Appellant?s family testified in favour of the Respondents? Dero family as the owners of some portions of the larger parcel of land.
?
In defence of the action of the Respondents

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against them, the Appellants vide the 1st Appellant as DW3 and two other witnesses gave evidence. Although the Appellants did not file a counter-claim, they equally claimed title to the disputed land and just like the Respondents, employed traditional evidence method in proof of same. The evidence of DW2 a member of the DW3?s Akintimehin family is that, Orunsero family was the original owner of a large expanse of land part of which is the disputed land. That one Madam Ogunbi who derived title from Orunsero family begat Akintimehin and that Akintimehin was the grandfather of Chief Aruwa Olatomide the father of the 1st Appellant. That after the death of Chief Aruwa Olatomide, the 1st Appellant inherited the land. According to them Chief A. Olatomide farmed on the land and also exercised legal rights thereon by leasing portions of same to tenants for farming purposes and collected rents from the tenants. DW2 who is 1st Appellant?s first cousin is the head of the monitoring team set up by the 1st Appellant and saddled with the responsibility of leasing portions of the larger expanse of land to interested tenants for farming purposes. That sometime in

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1960 before the death of Chief Aruwa Akintomide, the 1st Appellant?s father, a portion of the family land was leased to Pa. Ajakaiye the late father of DW1 for cultivation upon payment of traditional yearly rent, Ishakole. The said portion of land was inherited by DW1 upon the demise of Pa. Ajakaiye. DW1 gave evidence that he initially continued to cultivate the land and paid rents. That the portion of land being occupied by Dumez (Nig.) Ltd. was leased to it by the 1st Appellant?s Akintimehin family. That the family also gave out portions of land to several government agencies and private business owners and individuals. DW2 and DW3 also gave evidence that part of the DW3?s share of the larger family land is the portion of land in dispute which DW3 sold to the 2nd Appellant, Exhibit H was tendered in evidence to buttress this. It was in the process of clearing the portion of land for the purpose of developing same that the Respondents laid claim to the ownership of the land.

Now, the trial Court after setting out the issues joined by the parties in their pleadings, duly in my opinion went ahead to consider the evidence adduced by them in

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support of the issues by placing the two sets of evidence on the imaginary scale of justice, weighing one against the other in order to decide upon the preponderance of credible evidence, which weighs more. According to the learned trial Judge, he preferred and accepted the evidence of the Respondents. Upon the application of the appropriate law, both statute and case, and bearing in mind the claim and reliefs sought by the Respondents, he found for the Respondents. The foregoing is in compliance with the legal procedure known as evaluation of evidence and ascription of probative value thereto. See the cases of: (1) Mogaji v. Odofin (1978) 4 SC p. 91 at p. 94; (2) Bello v. Eweka (1981) 1 SC p. 101; (3) Owoade v. Omitola (1988) 2 NWLR (Pt. 77) p. 413; (4) Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) p. 135 and (5) Mkpinang v. Ndem (2013) 4 NWLR (Pt. 1344) p. 302.

Specifically, on the claim of title to the land in dispute and regarding the establishment or proof of the root of title by the Respondents, the trial Court found ?inter alia? as follows:
The genealogical tree of the claimants as narrated, finds support from pleading of the

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defendants and shows an unbroken claim from their progenitor, Jomuleje, to his three children which included Dero, to the only son of Dero by name Fako, to the six children of Fako and then to the three claimants. This traditional history makes more sense and appears more plausible than the scanty traditional history as presented by the defendants, devoid of necessary details
Placing the traditional evidence as adduced by the claimants and the defendants side by side on the scale of justice, it is not too difficult to see where it preponderates, as the traditional evidence of the claimants appears more credible, cogent and consistent than the hogwash traditional account or evidence of the defendants.
See pages 211 to 212 of the record of appeal. Sequel to the above findings, the trial Court held that the Respondents proved their title to the land in dispute as

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required by law on the balance of probability and preponderance of evidence based on the traditional evidence adduced as well as acts of ownership exercised by them. I am at one with the findings of the trial Court based on the evidence adduced by the Respondents as plaintiffs as can be gleaned from the printed record of appeal and as brought to the fore above by me in the summary of the respective cases presented by the parties. The said evidence is cogent, credible, sufficient, compelling and irresistible in proof of their root of title. I have equally reviewed the reasons given by the trial Court and I am of the view that the conclusion reached by it in this respect is justified, having regard to the evidence led altogether in the case.

The Appellants? counsel has made a very heavy weather of the issue of the identity of the land in dispute. In his opinion, the pleadings and evidence led by the Respondents did not sufficiently and accurately establish the portion of the land in dispute. Upon what I consider a careful evaluation of the evidence of both parties particularly the Respondents as plaintiffs and especially sequel to Exhibit F

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the Disputed Original Plan dated 20th of October, 2014, the trial Court found that, the identity of the land in dispute is not in doubt.
The law is well settled that in an action for declaration of title to land, the onus is on the plaintiff to establish with certainty, the identity of the land in dispute to which his claim relates. In other words, the land must be identified positively and without any ambiguity. Thence, the mere mention of the name of the land in dispute without stating clearly the area of the land to which the claim relates is not enough description. See the cases of: (1) Awote v. Owodunni (No. 2) (1987) 2 NWLR (Pt. 57) p. 366; (2) Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) p. 192; (3) Otanma v. Youdubagha (2006) 2 NWLR (Pt. 946) p. 337; (4) Aremu v. Adetoro (2007) 16 NWLR (Pt. 1060) p. 244 and (5) Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) p. 1. In the case of: Aremu v. Adetoro (supra), the Apex Court reiterated the settled position of the law as to who has the duty and how to establish the identity of a land in dispute as follows:
Where the parties are not ad idem or ad idem facit on the identity of the land in dispute, the

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burden is on the party claiming title to prove the identity of the land. And this he can do by specific and unequivocal evidence as to boundaries of the land in dispute ?. In a claim for declaration of title to land the onus is on the plaintiff to prove title to a defined area to which a declaration can be attached. And that defined area, in my humble view, is the boundary of the land. In Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41, this Court held as follows: (1) In an action for declaration of title, it is the duty of the plaintiff to show quite clearly the area of land to which his claim relates. (2) One of the ways of showing the specific area claimed is to file a plan of the area; such plan being properly orientated; drawn to scale and accurate and reflecting the boundary features .. The burden of proof of the identity of the land does not shift one inch. It is totally on the plaintiff.
Hence, I do not agree with the learned trial Judge that, the Appellants ought to have filed necessary processes to countermand Exhibit F regarding the ascertainment of the land in dispute. For as rightly postulated by the

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Appellants? learned counsel, the Appellants having not filed a counter-claim, they were not required in law to so do. The onus placed on the claimant by law is thus static and immovable. However, the standard of proof in this wise, just as in all civil matters, is on the balance of probabilities, and preponderance of evidence. This presupposes a consideration of the evidence led by both sides and not proof beyond reasonable doubt as it is in criminal causes. This trite position of the law was succinctly restated by the Apex Court in the case of: Torti v. Ukpabi & Ors. (1983) 11 SC p.1 as follows:
Clearly, I am far more inclined to the view that a civil case is a civil case and that the standard of proof in a civil case remains constant in the sense that the standard of proof therein is one based on balance of probabilities. To raise it any higher is to do injury to litigants and to the evidence law.
See also the cases of: (1) Woluchem v. Gudi (supra); (2) Anyanwu v. Mbara & Anor. (1992) 5 NWLR (Pt. 242) p. 386; (3) Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) p. 1; (4) Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) p. 184 and (5) SPDC (Nig.) Ltd. v. Edamkue & Ors. ?

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(2009) 14 NWLR (Pt. 1160) p. 1.
In the instant case, on the pleadings and evidence of the Respondents, particularly Exhibit F the Disputed Original Plan, as rightly reasoned by the trial Court, the Respondents on the balance of probabilities unequivocally defined the area of the land in dispute. Exhibit F was duly tendered without the objection of the Appellants. Indeed, I do not share the view that the Appellants are in doubt about the identity of the land in dispute. For their so-called doubt was merely and glibly raised during trial and not in their pleadings sequel to the Amended Statement of Claim of the Respondents. The Appellants of a fact did not address the issue further. They had the opportunity to file an amended statement of defence but failed so to do. As duly evaluated by the trial Court, I find that Exhibit F is both in tandem with the pleadings of the parties and the evidence adduced by the Respondents, which is devoid of any material contradictions. Hence, the onus placed on the Respondents on this subject was duly discharged by them. The trial Court was therefore right to accept the evidence adduced by the

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Respondents in this regard and properly found in their favour. This is in the light of the testimony of DW1 who gave evidence for and claimed to be an age-long tenant of the Appellants. DW1?s evidence is quite lucid at pages 194 to 195 of the record of appeal. His evidence clearly shows that the identity of the land in dispute is not unknown to the Appellants. Rather, there is no question regarding the identity of the disputed land. DW1 himself is a tenant on a portion of the disputed land. He further stated that the 1st Appellant sold part of the land in dispute to the 2nd Appellant and it was in the process of the 2nd Appellant clearly the said portion of land preparatory to developing it that the Respondents laid claim to the ownership of same. The law is trite that a plaintiff is entitled to take advantage of evidence for the defendant that supports his case. See the cases of: (1) Akinola v. Oluwo (1962)1 All NLR p. 224 at p. 227; (2) Woluchem v. Gudi (Supra); (3) Edokpolor & Co. Ltd. v. Bendel Insurance Co. Ltd. (1997) 2 NWLR (Pt.486) p.131; and (4) Iheanacho & Ors. v. Chigere & Ors. (2004) 17 NWLR (Pt. 901) p. 130. In the instant

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matter, I find the defence of the Appellants in this wise quite supportive of the case of the Respondents. The Appellants can not turn around to shy away from the case presented at trial by them in this appeal. The advantage presented by the Appellants must be allotted to the Respondents by this Court, for that is what the law behoves it to do in the circumstances.

I have no doubt in mind that, the findings of facts arrived at by the trial Court are in my very firm view correct and I hold so. I cannot and indeed am legally forbidden to disturb them in the overall given circumstances of this matter. The law is well grounded that, basically, the evaluation and ascription of probative value to such evidence are the primary function of a trial Court. Therefore, where a trial Court has properly evaluated the evidence and came to a correct conclusion as is the case in the instant matter, it is not the business of the Court of Appeal to substitute its own views for those of the Court of trial. For the duty of the appeal Court is to ascertain whether or not there is evidence on which the Court of trial acted and when the Court of trial is found to have

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diligently and properly carried out its function, the Court of appeal will not interfere to upset the decision of the trial Court. On this well established legal position there are plethoral of judicial authorities amongst which are: (1) Agbabiaka v. Saibu & Ors. (1998) 10 NWLR (Pt. 571) p. 534; (2) Woluchem v. Gudi (Supra) at p. 326; (3) Oyedeji v. Akinyele (2002) 3 NWLR (Pt. 755) p.586 at pgs. 616-617; (4) Adebayo v. Adusei (2004) 4 NWLR (Pt. 862) p. 44 at p. 77; (5) Alibi v. Doherty (2005) 18 NWLR (Pt. 957) p. 411 at p. 432; (6) NEPA v. Arobieke (2006) 7 NWLR (Pt. 979) p. 245 at p.272; (7) Nnadozie v. Mbagwu (2008) 3 NWLR (Pt. 1074) p. 363; (8) Guardian Newspapers Ltd. v. Ajeh (2011) 10 NWLR (Pt. 1256) p. 574 and (9) Nagogo v. Congress for Progressive Change & Ors. (2013) 2 NWLR (Pt. 1339) p. 448. On the duty of a trial Court to evaluate evidence and that of an appellate Court in reviewing such evaluation on appeal, the Apex Court per the legal sage of blessed memory, Tobi, JSC had the following to say in the case of: Nnadozie v. Mbagwu (Supra)
The duty of a trial Judge is to evaluate the evidence before him to arrive at a decision. The duty of

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an appellate Court, such as the Court of Appeal, is to go into the evidence evaluated by the trial Judge to see whether there was any perversity in the findings… Sequel to my above stated deductions, I have not found any perversity in the findings of the trial Court. Hence, I have no reason to interfere and upset the said findings of the trial Court in the instant matter.

In sum, issues two and three redacted by the Appellants for the determination of this appeal have equally failed, they are hereby resolved against the Appellants and in favour of the Respondents.

Upon the failure of all the three issues raised for resolution by the Appellants, this appeal is failure-fated. Consequently, the appeal is dismissed.

Concomitantly, the judgment of the trial Court in Suit No. HOR/38/2011 delivered on the 30th of July, 2018 is hereby affirmed.

The Respondents are entitled to the costs of this appeal, which I assess in the sum of One Hundred and Fifty Thousand Naira (N150,000) only, to be paid by the Appellants to the Respondents.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the draft of

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this lead judgment rendered by His Lordship, Oyebisi F. Omoleye, (PJ) in this appeal and concur that the appeal has no merit and should be dismissed.
This well horned lead judgment cannot be made better.

I need only elucidate on the portion of the judgment relating to the juristic personality and competence of a suit by it or against it that the rationale of the judgments prepondering is simply that a family made up of living humans is a quasi corporation even where not incorporated and therefore enjoys rights and privileges; and may therefore act, receive and confer benefits. Such bodies are by the fiction of the law, in jurisprudence and legal theory capable of being sued and of suing.
It is because such quasi and unincorporated bodies may not sue in any corporate name that the authorized members thereof as the head of the family or principal member may sue; or a member, whose rights is infringed and who also may protect the family rights (where equitable) as in the ‘inside trading’ or ‘Minority Rights Protection proceedings,’ scenarios. ?
It is only where a family is expressed as a party on its own and without the human member

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defending/suing as its representative or Agent or for himself and on behalf of the family, that issues may be properly raised on the competence of the party.
The competence of an action in the character of the present Respondents suing as representatives of the Dero family ought not to have been an issue at all.
This is even aside the fact that “suing for themselves” had on that alone validated and made competent the suit as relating parties. Therefore, these named humans who sued for themselves could sue or represent the family as they did. This is a different kettle from a situation where the plaintiff or defendant is simply expressed as —“X. Y. Z family”; such a party as in the above instance, will clearly be incompetent; therefore, expressed as suing or defending by itself, unless incorporated or by law allowed to so act, will be met with a good objection.
That is not the scenario in this case. On the whole, I am comfortable with the lead judgment, in this appeal on all the issues.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have read in draft the lead judgment delivered by my Lord, Oyebisi F. Omoyele, JCA (PJ) in this

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appeal and I agree that the appeal be dismissed.
I also order that the trial Court’s decision be and it is hereby affirmed.
I also abide by the order relating to costs as made in the lead.

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Appearances:

Mr. Akinyemi OmowareFor Appellant(s)

Mr. A. A. SuleimanFor Respondent(s)

 

Appearances

Mr. Akinyemi OmowareFor Appellant

 

AND

Mr. A. A. SuleimanFor Respondent