OBA YUSUF OMOKANYE & ANOR. V. SAKA MOGAJI ADINI & ANOR.
(2012)LCN/5308(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of April, 2012
CA/IL/2/2011
RATIO
LAND LAW: WAYS OF PROVING OWNERSHIP OF LAND
In the resolution of these two Issues it suffices to state that I am in total agreement with the learned counsel for the Respondent who has ably submitted by placing reliance on the case of Idundun v. Okumagba (1976) 1 NMLR 200 (1976) NSCC (Vol.10) 445 at 454-455 per Fatayi-Witliams JSC; that there are five ways of proving title to land
In that cause celebre, the learned judicial icon at pages 210 and 211 of (1976) 1 NMLR 200; posited inter alia:
“As for the law involved, we would like to point out that that it is now settled there are five ways by which ownership of land may be proved…..
Firstly, ownership of land may be proved by traditional evidence….
Secondly, ownership of land may be proved by production of document of title which must of course, be duly authenticated in the sense that their execution must be proved, unless they are produced from proper custody in the circumstances giving rise to the presumption in favour of due execution in the case of documents 20 years old or more or at the date of the contract (see Section 129 of the Evidence Act and Johnson v. Lawanson (1971) 1 ALL NLR 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 sufficient length of time and are numerous and positive enough to warrant inference that the person is the true owner (See Ekpo v. Ita 11 NLR 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 45 of the Evidence Act. Cap. 62). Such acts of long possession, in a claim of declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than offence; moreover, under Section 145 of the Evident Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title (See Da Costa v. Ikomi (1968) 1 ALL NLR 394, 398).
Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute (see Section 45 of the Evidence Act Cap.62).” PER IGNATIUS IGWE AGUBE, J.C.A.
LAND LAW: PRINCIPLES OF CUSTOMARY TENANCY
I must also state with the greatest respect that the learned trial Judge did not appreciate and indeed failed to apply the nuances and principles of customary tenancy which have long been established in a host of judicial pronouncements and by writers. For the above reason and avoidance of doubt it is only necessary to revisit this legal concept in order to throw more light on this case as the parties fought it in the lower Court. L.K. Agbosu for instance, in his essay captioned “Extinction of Customary Tenancy by the Land Use Act” (1978-1988) 3 N.W.LR. page 153 ; conceptualizes Customary tenancy as follows:
“….customary tenancy in Nigeria Land Law arises where a person who had the legal capacity to do so permits, grants or is deemed to have granted to another, usually a stranger who is not a member of the land holding group such as the family or community, the right of possession or use of land for a specified or an indefinite period of time with the intention that the use of the land shall revert to the grantor when the purpose for which the right is conferred has been fulfilled.
The main point of note here is that the duration of the tenant’s interest in land had been defined: it may be for a specified or an indefinite period of time.”
Professor Ben Nwabueze on his part defines the concept of customary tenancy as creating “the relationship of landlord and tenant between the parties to it”, and distinguishes it from a mere occupational licence which confers no interest in land, whereas a tenant under customary tenancy has definite rights in land which are enforceable against the world at large including the grantor and those claiming under him.
On the other hand, G. A. Wigwe, defines the concept thus “tenancy refers to possessing right over land; that is, the right to occupy land. “See G.A Wigwe “Igbo Land Ownership, Alienation and Utilization: Studies in Land as a Resource”, in igbo Jurisprudence: Law and Order in Traditional Igbo Society, Ahiajoku Lecture, 1986.
Professor Utuama even brings home vividly the point as far as the scenario created in this appeal is concerned when he conceived customary tenancy as being created “when a land-owning individual, family or community grants a right of occupation of land to another person or group of persons who are usually strangers or immigrants to live in or farm in return for which they acknowledge the title of their grantor by the payment of customary tribute.
It is a cardinal principle and incident of customary land law that a customary tenant’s interest in land goes on and on and on in perpetuity until the tenancy is forfeited. This point was succinctly stressed in the case of Silli v. Mosoka (1997) 1 NWLR (pt.479) 103, where the Court held that:
“It is settled law that the possessory right of a customary tenant goes on and on in perpetuity unless and until the tenancy is forfeited for misconduct on the part of the tenant”.
See generally B.O. Nwabueze, Nigerian Land Law Nwamife Publishers Ltd, Enugu, 1977 Ed. at page 246; A. A. Utuama Nigeria Law of Real Property Shaneson C. I Ltd. 1989, P.23; Lasisi v. Tubi & Anor (1974) 12 S.C 77; Abioye v Yakubu (1991) 5 N.W.L.R (pt. 190) 130 and Abidoye v. Alawode (1994) 6 NWLR (Pt. 349) P.242.
Thus, in Abioye v. Yakubu (supra); the Supreme Court held that a customary tenant is a tenant from year to year liable under customary law to pay rents or tribute to the landlord for the use of land. The above position of the apex Court suggests that the tenant’s interest in land cannot always be in perpetuity or only subject to forfeiture as a result of misbehaviour, since the tenancy can also be determined when the purpose for which the right is conferred has been accomplished, for instance, where land is granted for a farming season, and the crops have been harvested. The actual duration of a customary tenancy from the foregoing decision would seem to depend on the agreement reached between the grantors and the grantees.
In the same case Abioye v. Yakubu (supra), the Supreme Court commenting on the nature of holding under a customary tenancy posited as follows:
“The legal nature of a holding under customary tenant is that the holding of the customary tenant is not a gift or loan, nor is the land given for a definite term (which differentiates him from a lessee). Customary tenancy is a grant upon terms and conditions agreed with the owners and provided that he keeps to the conditions of the grant and payment of tribute, the customary tenant can enjoy possession of his holding from year to year in perpetuity. But no matter how long he is on the land, he does not and cannot acquire ownership. He is liable to incur forfeiture and lose his tenancy on breach of the terms and thus, customary tenancy is differentiated from the English concept of lease which can be invalidated for lack of certainty of term, as certainty of term is not essential for the creation of a customary tenancy. See further Aghenghen v. Wagboregbo (1974) 1 S.C. 1 at Pp. 8- 24; Oniah v. Onyiah (1989) NWLR (pt. 99), 514; Lasisi v. Tubi 71 S.C 71 at pp. 75-76; Akinloye v. Eyiyola (1968) NMLR 92; Isiba v. Hanson (1964) 1 All N.L.R 8.
As can be seen from the definitions given above of customary tenancy and the incidents thereof, one of the essential characteristics of this legal concept is the payment of rent or tribute usually in kind in order to ensure a relationship of landlord and tenant which tribute or token serves as the grantee’s acknowledgement of the grantor’s reversionary rights. See C.O. Olawoye, Title to Land in Nigeria, Evans Bros Ltd., 1974 at page 27.
Thus, contrary to the holding of the learned Ag. Chief Judge at page 205 lines 11-16 of his Judgment, writers and indeed our Courts had long recognized and established in fact and in law, that under custom, a tenant or grantee of land can enjoy the use of that land in perpetuity and even pass on his right of occupation of the land to his successors, provided he does not misbehave by either challenging the over lordship or the grantor by claiming ownership or refusing to pay tribute to the landlord, as in this case. Indeed as far back as 1941, Martindale, J, in Etim v. Eke (1941) 16 NLR 42 at 50 succinctly stated the position of the law: “that the grantee acquires a right of use which endures for an indefinite period of time and which is transmissible to his descendants.”
Commenting on the right of a customary tenant, Kutigi, JSC (as he then was) in the case of Akintola v. Oyelade (1993) 3 NWLR (pt.349) 382, posited inter alia:
“A customary tenant is entitled to possession and occupation of the land, subject-matter of the tenancy. The tenant’s right of user is, however, subject to the overlord’s right of reversion which is exercisable if and when the tenant denies the title of the overlord or misbehaves by failing to comply with the terms of the agreement and or if he abandons the land. The overlord, however, has no right to determine the tenancy or the tenant’s occupation of the land otherwise than as stated above. “
Ayo Salami, JCA (as he then was) speaking in the same vein succinctly observed in Abidoye v. Alawode (1994) 6 NWLR (pt.349) 245; that: “A customary tenant is entitled, subject to good conduct, to tenure in perpetuity until his tenure is forfeited by order in an action brought for forfeiture”. See also C.O. Olawoye, “Title To Land In Nigeria”, at p.44.
The sum total of all the dicta of their Lordships and opinions of Legal pundits above enunciated is that a customary tenant is entitled to exclusives possession of the land granted to him until the tenancy has been lawfully determined. Even the grantor of the land has no right to enter upon the land without the permission of the tenant unless the tenancy so permits, or to maintain an action to restrain the tenant from trespassing on land of which he is in possession as customary tenant. Rather, any unlawful entry by the landlord is actionable in trespass at the instance of the tenant.
See further Aghenghen v. Waghoreghor (1974) 1 S.C.1; where the Supreme Court also emphasized the perpetual nature of possession of land held under customary tenancy by holding that customary tenants:
“… are not gifted the land neither are they “borrowed” or “lessees”, they are grantees of land under customary tenure, and hold as such, a determinable interest in the land which may be enjoyed in perpetuity subject to good behavior….such interest has in practice now been regarded by the courts as practically indefeasible once permanent building or other forms of improvements like extensive commercial and/or occupation have been established therein by the grantee. They enjoy something akin to emphyteusis a perpetual right in the land of another.”
See Emegwara v. Nwaimo (1953) 14 WACA 347; see also B.O. Nwabueze, Nigerian Land Law at P.253; Akinkuwo v. Fajimoju (1965) NMLR 349:
From the foregoing analysis particularly the dictum of Martindale, J. in Etim v. Eke (supra); which has been supported by Kutigi J.S.C. and Salami JCA (as they were then) in Akintola v. Oyelade (supra); Abidoye v. Alawode (supra) as well as other judicial authorities and s “that the grantee acquires a right of use which enures for an indefinite period of time and which is transmissible to his descendants”, the finding of his Lordship, the Acting Chief Judge at page 205 of the Records that “In the absence of any evidence that customary tenancy passes from father to son I am inclined to hold, and I hereby so hold that the evidence of DW1 that Claimant’s father exercised some rights over the disputed land some 20 years ago while his son, the Claimant also exercised such rights some years later over the same portion of land is more consistent with claim of ownership by the claimant than claim of customary tenancy by the Defendants”; is not only perverse but contrary to established or settled legal principles of customary tenancy in our jurisprudence.
The Respondents as customary tenants had a right to protect their crops or any trees planted on the land and can even sue the landlord in trespass not to talk of DW1 and DW2 who were tenant and the caretaker on the land respectively. That decision of his Lordship can therefore not stand in the face of the overwhelming evidence that the land which the Respondent purportedly called Oyaninsunwa and claimed title to, is part and parcel of Adinimodo land of which his forefathers were in possession as customary tenants.
From the evidence of the head of the Fulanis in Adini and a fellow tenant Alhaji Sadiq Yahaya who testified that Jimoh Olabode the current head of the Respondent’s family who had been working together with the witness on Adinimodo land and in fact was used to contributing yam tubers together during festivals to the Mogaji Adinimodo; coupled with the admission of the over lordship of the Onilemona over Adinimodo and all the adjoining lands, ample evidence abound to warrant the learned trial Judge to hold that the Appellants are the owners of the land notwithstanding the clever recitation of the pedigree nay genealogical chronology of the Claimant/Respondent’s root of title from Aderibigbe to the Respondent and other members of his family.
It can therefore be concluded that the Respondent and family were basking in the euphoria of long possession and occupation of Appellant’s land almost in perpetuity and like the proverbial little bird (Nza) in Achebe’s famous novel, “Things Fall Apart”, became so swollen-headed to the extent of refusing to pay tributes to the overlord and now claim ownership of the land. By this action, the full wrath of the incidents of customary tenancy ought to be visited on them for engaging in as Agbosu would put it, ” the most serious misconduct which is rarely over looked (that) “is the denial of the landlord’s title,”.
Need we remind the learned trial Ag. Chief Judge that as customary tenants, the Respondents were obligated to be of utmost good behavior which connotes some fundamental duties that he must observe at the pain or peril of sanction? These fundamental duties or obligations had been held to include:
- Obligation not to alienate without grantor’s consent;
- Obligation not deny the grantor’s title;
- Obligation not to use the land for a different purpose;
- Obligation to pay customary tribute or rent. See per Obaseki, JSC in Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 at 12; Onisiwo v. Fagbenro (1954) 21 N.L.R. 3 at 6; Ogunmola v. Eiyekole (1990) 4 NWLR (Pt.146) 632 at 646 (S.C.); Alege v. Ogundipe (1957) W.R.N.L.R. 178; Akinrilowo v. Anwo (1959) W.R.N.L.R. 56; Abidoye v. Alawode (supra) and Eyamba v. Holmes (1924) 5 N.L.R. 85 at 87.
In this case the Respondent has not only denied the grantor’s title by first filing suit No. UACO/CVF/28/2005 before the Upper Area Court Omu-Aran sitting in Offa against the 1st Appellant for declaration of title over a portion of land which ordinarily he is a customary tenant but went further to institute this action again in the High Court claiming the same reliefs as in the Upper Area Court. For breaching this primary and most serious obligation on the part of a tenant, the consequence of this act of misbehaviour is, as was rightly held by the Supreme Court in Ogunmola v. Eiyekole (1990) 4 NWLR (Pt.146) 632 at 646; his forfeiture of and/or eviction from the land.
Apart from the above, the Respondent has also without the consent of his over lord (the 1st Appellant), alienated parts of the land by Exhibit CL1 which the 1st Appellant has challenged as being fraudulent and further by the evidence of PW1 Alhaji Tajudeen Adesina that the land belongs to the Respondent and Family who are his Landlord; should also attract the sanction of forfeiture. See Aghenghen v. Waghoreghor (supra); Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 at 12; where Obaseki, JSC; posited rightly in my humble view, that ” Forfeiture is available whenever a tenant alienates without the landlord’s consent the whole or part of the parcel of land let out to him by the landlord under customary law.”
From the facts as pleaded and supported by the evidence elicited by the Respondents and his witnesses as well as the Appellants, there is no doubt that the crux of this matter is the refusal of the Respondents to pay tributes through DW2 and DW3 who are the Mogajis appointed by the 1st Appellant to oversee Adinimodo and the adjoining Gaas/land in dispute. The Respondents now claims ownership of the said land and even purport to exact tributes of hordes of yam tubers from those farming on his purported Oyanisunwa land. In fact since 2002 the Respondents have refused to pay tributes to their landlord hence the exercise of the Appellants rights’ to their reversionary interest by restraining the Respondent and his agents or cohorts from further use of the land.
Thus, as have been held in Lasisi v. Tubi & Anor (1974) 12 SC 71; Eyamba v. Holmes (1924) 5 NLR 85 at 87 and Abidoye v. Alawode (1994) 6 NWLR (Pt.349) 245; the established rule under customary law is that the tenant is under obligation to pay tributes or rent to his overlord and default of payment renders him liable to an action in forfeiture or ejection; as there is no law statutory or otherwise authorising a tenant to defy his landlord by defaulting payment of rent so long as the tenancy subsists.
Finally, let the point be stressed that no matter how long the Respondent and his family members have occupied the land of the Appellants they cannot acquire ownership thereof as they are liabte to incur the forfeiture of their tenancy upon breaching the terms and conditions of the tenancy more particularly as they have alienated part of the land stealthily and fraudulently and even gone ahead to challenge the title lover lordship of their grantor. See Akinloye v. Eyilola (1968) NMLR 92; per Bello C.J.N in Abioye v. Yakubu (1991) 5 NWLR (pt. 190) 130; Onyiah v. Onyiah (1989) 1 NWLR (Pt.99) 514; Lasisi v. Tubi (supra) at 75 – 76; Akintola v. Oyelade (1993) 3 NWLR (Pt 282) 379 and Abidoye v. Alawode (1994) 6 NWLR 247. PER IGNATIUS IGWE AGUBE, J.C.A.
EVIDENCE: PRIMARY FUNCTION OF THE TRIAL COURT
As I said earlier, the law is now trite that it is the primary function of the trial court to evaluate or appraise the evidence of parties and their witnesses as well as ascribe probative value thereto and where the exercise is properly done this court as an appellate court has no business to substitute its views for that of the court of trial which had the advantage of seeing or hearing the witnesses except in the evaluation exercise the following circumstances resulted as was rightly submitted by learned counsel for the Respondent:
- That the trial court did not make proper use of the opportunity of seeing and hearing of witnesses at the trial;
- That the trial Court drew erroneous conclusion from accepted facts or mis-appreciated the evidence adduced before it; or
- That the findings of facts are perverse in the sense that they do not flow from the evidence accepted by the trial Court. See Fasakin v. Siwoku (2009) 16 NWLR (Pt.1167) 305 at 320-321 D-F.
In the case at hand, I had earlier held that the findings of the court below in respect of the title to the land and customary tenancy were perverse in that they did not flow from the totality of the evidence elicited by the parties and indeed it may be added that His Lordship drew erroneous conclusions from proved and accepted facts and accordingly this court is in as good a position as the court of first instance to re-evaluate the evidence and interfere with the findings of facts particularly as the evidence elicited were mostly documentary in nature; as I have done in this appeal. See Nnorodim v. Ezeani (2001) 5 NSQR 510 at 515, per Iguh, JSC and Adebisi Adeye & Ors v. Chief Agbatogun Adesanya (2001) 5 NSQR 522 at 531; per Wali, JSC. PER IGNATIUS IGWE AGUBE, J.C.A.
LAND LAW: WHAT CONSTITUTES BOUNDARY DISPUTE
In the eyes of the law, boundary dispute constitutes title dispute over land, see Tanko vs. Echendu (2010) 18 NWLR (Pt. 1224) 253. PER OBANDE OGBUINYA, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. OBA YUSUF OMOKANYE (ELEMONA OF ILEMONA)
2. SAKA MOGAJI ADINI (For himself and Adini Family) Appellant(s)
AND
1. SAKA MOGAJI ADINI (For himself and Adini Family)
2. RASAQ YUSUF (For himself and members of Oyanisunwa Family, Offa) Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice Kwara State holden at Ilorin Division wherein per S.D. Kawu, Ag Chief Judge; granted the Claims of the Claimants for Declaration of Customary Right of Occupancy and perpetual injunction against the Defendants and dismissed the Defendants/Counter-claimants’ Counter-claim, Dissatisfied with the Judgment the Defendants/Counter-claimants have now appealed to this Honourable Court on three Original Grounds as contained in pages 207- 209 of the Original Record of Appeal. By a motion on Notice dated and filed on the 12th day of October, 2010, the Appellants through their learned counsel Chief P.A.O. Olorunisola, SAN, sought for the leave of this Honourable Court to file Additional Grounds of Appeal Numbered 4, 5, 6 and 7 as can be found in page 210 of the Additional Record of Appeal.
Upon transmission of the Records hereto, parties exchanged their respective Briefs of Argument. In the Brief settled by Chief P. A. Olorunnisola, SAN, the learned Counsel to the Appellants; three issues were formulated for determination couched and reproduced here under as follows:-
“ISSUE NO. 1: Whether the fact that damage to the claimant’s farm was found to be caused by the act of the DW1 and DW2 is sufficient evidence of ownership of the land claimed by the claimant? -Grounds 3 & 4.
ISSUE NO. 2: Whether the area of land claimed by the Claimant is clearly and sufficiently described as required by law and precedents?- Grounds 5 & 7.
ISSUE NO. 3: Whether there is sufficient evidence before the Court to justify giving judgment to the Claimant? – Ground 1 & 6”
As for the Respondent, Iwalola Bello (Mrs.) who settled his Brief, raised a Preliminary Objection to the Appeal on two Grounds viz:-
“1. That the Appeal is incompetent having not been filed within the time allowed by law; and
“2. That there is no appeal upon which this Court can exercise its appellate jurisdiction to determine the grounds of appeal.”
Alternatively, the learned counsel for the Respondent distilled and adopted the three issues as formulated by the learned counsel Appellants which are hereunder also reproduced for purposes of emphasis as follows:-
“ISSUE NO. 1: Whether the fact that damage to the Claimants farm was found to be caused by the act of the DW1 and DW2 is sufficient evidence of ownership of the land claimed by the claimant? Grounds 3 & 4.
ISSUE NO. 2: Whether the area of land claimed by the Claimant is clearly and sufficiently described as required by law and precedents? Grounds 5 & 7.
ISSUE NO. 3: Whether there is sufficient evidence before the Court to justify giving judgment to the Claimant? Ground 1 & 6.”
The facts of this case as can be gleaned from the respective Briefs of the parties as well as the evidence elicited by them and their witnesses, are that for the Appellants; the 1st Appellant is the Elemona (Onilemona) of ilemona i.e. Oba and paramount Ruler of the territory of Ilemona having succeeded to the throne in the year, 1991. The 2nd Appellant is said to be the Mogaji of part of Ilemona called Adinimodo who holds his title from the 1st Appellant’s family and whose tenancy is from the (Onilemona) Elemona. The 2nd Appellant is also said to be put in charge of the land called Adini (Adinimodo) and collects tributes and traditional gifts to the (Onilemona) Elemona and in fact is said to be the intermediary between farmers and the Elemona.
The Appellants claim that all the successive Mogajis of Adinimodo to wit: Oyetade, Sanni, Adebayo, Abdulsalami, Subaru and the 2nd Appellant who is the 6th Mogaji were appointed by the Elemona of Ilemona-in-office. According to the Appellants the Respondent’s father Yusuf Amuda during his life time gave Isakole (tributes) in the form of yams tubers through the 2nd Defendant’s father to the then reigning Elemona of Ilemona as the customary landlord of the land in dispute, for the use of the land.
The Respondent’s father was said to have met the then reigning Elemona of Ilemona late Oba Oduwoye, to beg for permission to use part of the land in dispute for farming purposes only and the Respondent’s family only used the disputed land for Agricultural purposes while the said family’s social activities were restricted to their native town, Offa. It is also the case of the Appellants that the land called Oyanisunwa is part of Adini land and was never given that name by them (the Defendants/Appellants).
The Respondents’ case on the other hand is that his great grandfather settled on a piece of land adjacent to Adini (Adinimodo) and the land was called after his grandfather’s wife who was a worshipper of Oya (the goddess of Sango) and he resides at Oyanisunwa Compound, Oke-Oro Offa as an indigene of Offa Local Government Area of Kwara State. He claims that Oyanisunwa is only a boundary mate to Adinimodo and that trouble broke out between the parties when the Appellants stopped members of the Plaintiffs family, who went to farm on the land from farming thereat on the ground that the Respondent claims ownership thereof.
At the trial, Amendments were granted the parties to their respective processes after which the Respondent as Claimant called three witnesses and tendered two documents- a Site Plan and an Agreement dated 1st October, 1988. The Site plan was rejected but the Agreement was admitted and marked Exhibit CL1. The claimants’ witnesses PW1-PW3 were duly cross examined by the learned counsel for the Defendants/Appellants after which the Defendants/Appellants also called four witnesses which included the Appellants and subsequently tendered Exhibits D1-D4. They were also cross-examined. At the close of the cases of the parties and the Addresses of the learned counsel on their behalf, the learned trial Judge delivered the Judgment on the 20th day of May, 2010 which is the subject of this Appeal.
Arguing Issue Number 1 of the Appellants which is whether the fact that damage to the Claimants farm was found to be caused by the act of the DW1 and DW2 is sufficient evidence of ownership of the land claimed by the Claimants; the learned Senior Counsel referred us to the evidence of the DW1 at page 165- 167, his cross-examination at page 167 of the Records on the burning of the Respondent’s father’s farm which according to evidence, the senior counsel noted, was not deliberate and the fact that the burnt farm is part of the land disputed.
The learned senior counsel submitted that the contention of the parties in Court is as to ownership and not possession of the land upon which the Respondent the farms which is not disputed. Accordingly being in possession, the Respondent had the right to have his crops on the land but this does not mean that only an owner of land can claim damages for his damaged crops or plants. Referring also to the evidence of DW2 at pages 168 to 170 of the Records and his cross-examination at pages 168 to 169 which also show that the Claimant was in possession of land and the plants thereon and this possession entitled him to claim damages for his plants or crops and where the DW2 was found to have cut trees of the Respondent, the Respondent had the right over such plants; he submitted further that the issue was settled between the two parties (DW2 and the Respondents) by the Elemona when the DW2 was made to pay a fine.
Learned senior counsel was however of the view that this does not make the issue turn to ownership. He posed the question why the matter was taken to the Elemona if not because he was the overlord of the people. He drew our attention again to the findings of the learned trial Judge at page 205 of the Records as to the answer given by DW1 and DW2 and argued that the mischief referred to in the quoted portion of the Records (Judgment of the Court) is only referable to possession and not ownership. For this submission he placed reliance on the case of Degaci of Dere v. Degaci of Ebwa (2006) ALL FWLR (Pt. 306) 786 at 847 para G.
Learned senior Advocate maintained that if the Respondent had intended the fact of burning of the Kola nuts trees, cutting of trees to be crucial to the inference of ownership, such fact ought to be pleaded and issues joined by parties. He took the view that it is trite that any facts not pleaded should be expunged as it can be gleaned that neither the Claimant’s Claim nor the Respondent’s Counter-claim or the Defence/Reply thereto contain any of such thing. For the above submission, he relied the case of Iheanacho v. Chinyere (2004) ALL FWLR (Pt.226) 204 at 227 paras. C -H; Nsirim v. Omuna Constr. Co. Ltd. (1994) 1 NWLR (Pt. 318) 1 at 17 BC and Punch v. Eyitene (2002) FWLR (Pt.125) 678 at 701 paras F – G.
Rounding up on this Issue, the learned senior Counsel pointed to decision of the court at page 205 lines 6 to 10 of the Records and submitted that the evidence upon which the court below predicated the decision and ascribed ownership of the land to the Respondent was wrong. We were then urged to allow the Appeal on the Grounds upon which the issues were formulated.
ISSUE NUMBER TWO: On this issue which is whether the area of land claimed by the Claimant is clearly and sufficiently described as required by law and precedent; the learned Senior Counsel for the Appellants noted firstly on the authorities of Iro Ogbu & Anor. v. Urum & Anor (1997) NCAR 168; Ibemere v. Unaegbu (1992) 4 NWLR (Pt.235) 390 at 397 paras B – C and Owhonda v. Ekpenachi (2003) FWLR (Pt.181) 1565 at 1582 paras C-D; that it is trite law that a person who claims declaration of title to the land has the duty of showing the area of land which he is claiming with certainty otherwise the claim will be dismissed.
With the above cited authorities, the learned SAN called on us to examine the description of the land by the Respondent in paragraphs 4 & 9 of the statement of claim which description was given at page 7 paragraphs 10 of the Respondent’s Statement on oath. The learned senior counsel further referred us to the case of Basil v. Fajebe (2001) FWLR (Pt.51) 1944 at 1930 – 1931 para H (SC), Owhonda v. Ekpenechi (supra) at 1582 paras C-D; Babatola v. Aladejana (2001) FWLR (Pt.61) 1670 at 1680 para. H and maintained that the description of the land as “a large expanse of land” or “along Ira road” does not give the disputed land a definite description of the land being claimed.
Furthermore, the mere mention of the name of the land or that the parties know the extent of the large area of the land is not enough more particularly where the Court below in this case rejected the plan of the Area being claimed and the Respondent was left with the description of the area claimed. Learned senior counsel contended that the description required in the case at hand is such that a Surveyor can produce a plan of the land but that with the description given by the Respondent in both his Statement on Oath and Statement of Claim, no Surveyor can draw a plan of the portion of land where he shares boundaries with Asaoye and Odere nor pick a point from where the land is separated from Ira Road.
Relying again on Irdye v. Ihyambe (2001) FWLR (Pt.31) 2881 at 2887 para. D; Ajao v. Adigun (1993) 3 NWLR (Pt.282) 389 at 387 paras. D-C per Belgore, JSC; learned Senior Counsel for the Appellants further posited that the description of the land without stating what forms the boundary is too vague; the Supreme Court having given us a guide as to how a description should follow in the above cited dictum of Belgore, JSC (as he then was).
He further argued that in the case at hand, the Court did not visit the locus and that by the Defence of the Appellants in paragraph 14 of their Statement of Defence and Statement on Oath at page 29 of the Records (paragraph 3 thereof) as against the Respondent’s Claim in paragraph 9 of the Statement of Claim; more so as the Defendant/Appellant insisted that Oyanisunwa was not original name of the land and pleaded at page 26 of the Statement of Defence/Counter-claim for forfeiture of the Respondent’s right over the parcel of land in Adinimodo Area of Ilemona and the 2nd Respondent having also testified in paragraphs 8, 9, 10 of his Statement on Oath in the same vein, the issue starring us in the face is whether Oyanisunwa is a part of land largely known as Adinimodo. Learned Senior Counsel then drew our attention to the fact that at page 202 lines 4 – 6, the Court below understood that the Defendants/Appellants claimed Oyanisunwa as part of Adinimodo land but the Court nevertheless gave ownership of the disputed land called Oyanisunwa to the Claimant/Respondents which land does not describe the limit and extent of the land and the boundaries.
Citing again the decision in Babalola v. Aladejana (2001) FWLR (Pt. 61) 1670 at 1682 paras D – E; it was submitted that a judgment must be capable of enforcement and since the Court below awarded Oyanisunwa without proper description of what constitutes that land, the land awarded to the Respondents is uncertain.
On ISSUE NUMBER 3 which is whether there is sufficient evidence before the court to justify giving judgment to the Claimant; the learned Senior Counsel for the Appellants posited that the judgment of the court below cannot be justifiably supported by evidence before it as the trial Court failed to consider the points in the case that the pleadings of the Claimant and the evidence of the Defendants were at variance in the following respects:
i. Paragraph 6 averred that all the persons mentioned in that paragraph lived and farmed in Oyanisunwa,
ii. The people listed in paragraph 6 are Aderibigbe, Oloyode, Sule Opatola, Ramonu Aliu, Alhaji Bello Ajileye, Yusuf Oyeyemi, Lawani Dediran and Jimoh Olabode.
iii. In his evidence at page 5 of the Records, the Claimant purported that all the people named in paragraph 6 lived and failed on the land till date.
It was the learned Senior Counsel’s further position that the list does not include Yusuf Iyanda and the Defence in order to prove that persons who settled on Oyanisunwa paid tribute mentioned the said Yusuf Iyanda in paragraph 7 of their Statement of Defence at page 23 of the Records (paragraphs 7 & 8 of the Statement of Defence refer). Learned counsel asserted that then the claimant hid the fact until the Defence brought it out and the Claimant was forced to admit that the list in paragraph 6 is not correct. He then posed the question as to why the Claimant/Respondent should forget that his own father was a family head and referred to the averments of the Respondent in paragraphs 3 and 4 of his Reply to the Statement of Defence and paragraph 7 of his Statement of Claim, submitting that throughout the hearing, the Respondent failed to substantiate by evidence that any of his family member lived and farmed on Oyanisunwa land.
He further posed the question whether the Respondent’s father was no longer a member of the Respondent’s family submitting further that the case of the Claimant was confused tissue of contradiction which showed that he was deliberately not truthful and the Court did not consider this factor. Still on the weakness of the Respondent’s case, the Appellant’s counsel noted that Respondent failed to show the Court any Shrine or relics of the Shrine or the location of their earlier settlement in Oyanisunwa nor did he produce any evidence of collecting tribute from people of Gbada, Ago Ondo and Gbedogbedo who the Claimant/Respondent claimed farmed on the Oyanisunwa Village to support his claim that such tribute was paid to him.
Reflecting on the description of the land once more, the learned SAN drew our attention to the evidence of the Respondent, his witnesses Suleman Adeyemi Asaoye and Sulaiman Adeyemo who did not even know the size of the land (page 164 of the Records) yet he testified that the Claimant is the owner of the land. He reviewed the evidence of the witnesses and the contradictions inherent therein as can be gleaned from pages 161 lines 13-14 and 25-27; page 7 paragraph 9 of the claim, on whether they collected tributes from those who farmed thereat and the difference between Oyanisunwa and Adinimodo Land; submitting that the Respondent was unable to produce any iota of evidence to show that those Villages of Gbada, Ago Ondo and Gbedogbedo paid tribute or Isakole to him (page 7 of the Records and paragraph 9 of the Statement of Claim refers)
Referring to paragraph 5 of page 54 of the records which contains the Reply to the Statement of Defence/Counter-Claim where the Respondent claimed that he entered into an Agreement with Rabelat (Nig.) Ltd., which Agreement was entered tendered as Exhibit CL1; the learned Senior Counsel contended that the land the subject of the Agreement is stated to be at Budo Dada and not Oyanisunwa and accordingly the Agreement is irrelevant to the case.
Alluding again to paragraph 8 of the Additional Statement on Oath of the Respondents at page 57 of the Records, the learned counsel submitted that the payment of yams by people on the settlements as mentioned is quite different from paying tribute on the use of Oyanisunwa land. He further argued that the trial Court used the pleading or ‘father’ in paragraph 8 of the Defence to contrast the use of the word forefather in paragraph 7 of the Defender’s Written Statement on Oath and wrongly came to the conclusion at page 203 of the Records for according to the learned Senior Counsel any father before the Claimant is his ‘forefather’ which point was clarified by the learned counsel for the Respondent who cross-examined the 1st Defendant who stated that it was the Claimant’s father. He maintained that the Respondent in his Reply to the Statement of Defence/Counter-Claim did not deny the averment of the Defendants/Counter-Claimants/Appellants in paragraph 8 thereof and the fact is deemed admitted; and went further to define the word ” fore’ submitting that the Respondent’s father is a father before and is one of his ancestors.
On another score the learned SAN asserted that the learned trial Judge failed to consider the facts in favour of the Defendants which could tilt the scale in favour of the Defendants which facts are:
1. The fact that the land is in Ilemona land in Oyun Government of Kwara State;
2. The Respondents and witnesses admitted that 2nd Defendant is the Mogaji Adinimodo who collects tributes on behalf of the 1st Defendant.
3. The Claim of the Defendant that Oyanisunwa is part of Adinimodo even though the Respondent christened it Oyanisunwa;
4. There is admission that Oyanisunwa is adjacent border mate with Adinimodo but the Claimants were unable to state the boundary marks between the lands;
5. Recent act of the Defendants/Appellants in giving land to the Church near what the Claimant claims to be Oyanisunwa;
6. The testimonies of the Mogajis of the Villages mentioned by the 1st Defendant/Appellants viz: – 2nd Respondent the Mogaji Adinimodo; DW1 – Sadiq Yahaya-present head of Fulanis in Ilemona (page 36 of the Records) DW2 Momonu Akanbi-Mogaji (Village head) of Budo Gbada (page 168 of the Records).
7. The fact that Oyanisunwa whom the Respondent claimed had settled before Adinimodo has the 1st Appellant as the Ruler of the whole land hence the settlement of the cutting of trees by the Elemona of Ilemona (1st Appellant).
8. The fact that the Respondent and his family never lived at Oyanisunwa land belies their evidence that the land belongs to them and the further admission that Oyanisulnwa is in Ilemona in Oyun Local Government further belies their claim as one cannot settle on land without being there or having a Mogaii or Head of Village or settlement.
It was therefore submitted that the trial Court failed to consider the undisputed evidence of the Defendants and their witnesses that:
1. The whole land including Oyanisunwa belongs to the 1st Appellant (page 177 lines 12- 15 of the Records).
2. The consensus by the parties that Adinimodo is adjacent and has boundary with Oyanisunwa-page 161 lines 15-16.
3. Other settlements of Gaa Sadiku Adinimodo; Gaa Oko Arugbo Adinimodo and Gaa Aburo Sidiku Adinimodo belong to the 1st Defendant as the customary custodian of Ilemona land as stated at page 23 lines 25-30 of the Records which evidence was not challenged on cross-examination of the 1st Appellant, Pages 175- 177 refer.
4. The claimant admitted that the land is in Ilemona in Oyun Local Government.
5. The 1st Appellant gave out land adjacent to the land in dispute to Anglican Communion (page 24 paragraph 13) of the Records.
6. The Court ought to have invoked Section 46 of the Evidence Act in favour of the Appellants.
7. The totality of the evidence in this case is that Oyanisunwa is surrounded by lands over which the 1st Appellant has dominion and over which various Mogajis (Village Heads) including the 2nd Appellant are appointed by the 1st Appellant to oversee. In support of this submission the learned senior counsel placed reliance on the case of Tashang v. Lekret (2001) FWLR (Pt. 42) 161 AT 170 – 171 paras G-A to urge the Court to allow the Appeal and dismiss the Respondent’s claim.
RESPONDENT’S ARGUMENT
While summarizing the facts of this case I was minded to allude to the Preliminary Objection raised by the learned counsel for the Respondent to the competence of the Appeal. However, it would be recalled that on the 26th day of January, 2012, when this Appeal was to be heard, L.F. Ariga Esq., with him Mrs. Iwalola Bello and Toyin Alawode Esq., for the Respondent, withdrew the Preliminary Objection on the ground that they had gotten information from the lower Court on the actual date of the judgment the subject of this Appeal. Accordingly, the Notice of Preliminary Objection dated 18th February, 2011 together with arguments in support spanning paragraph 1.00 pages 1 to 1.13 page 7 of the Respondent’s Brief is hereby struck out.
Turning to the Arguments in respect of the issues, learned counsel for the Respondent referred to the Evidence of the DW1 and DW2 at pages 36 to 37 and 34 to 35 respectively as well as their answers to cross-examination at pages 165 to 167 and 168 to 170 of the Records respectively. Relying on the cases of Idundun & Ors. v. Okumagba & Ors. (1976) 1 NMLR 200 and Usman v. Joda (1998) 13 NWLR (Pt.581) 374 at 383 to 384 on the five ways by which a party can prove his titled to land, the learned counsel submitted that any party is entitled by law to rely on the opponent’s admission against interest to defeat his opponent’s case and strengthen his own. INEC v. Oshiomhole (2009) 4 NWLR (Pt.1132) 607 at 662 A – D per Katsina-Alu JSC (as he then was); Onijaodu & Anor. v. Elewuju & Anor. (2006) 13 NWLR (Pt.998) 517 at 529 – 530 paras A – B per Tabai JSC and Fayemi v. Oni (2009) 7 NWLR (Pt.1140) 223 at 269 para B – H; were all cited to submit that the Respondents never lost focus of their claim for ownership throughout the proceedings in the lower Court.
According to learned counsel, the Respondent relied on methods 1, 2 and 3 in proof of his case while the Defendants/Appellants/Counter-claimants rested their case on method 5. He related how the Respondent unequivocally as settled by his pleadings and consistent evidence traced the origin of the land to their progenitor Aderibigbe who migrated from Offa/Esun by settlement in Oyanisunwa land which was named after the said Aderibigbe’s wife a renowned Oya worshipper. Paragraphs 5 and 6 of the Statement of Claim (page 4 of the Records) and paragraphs 6, 7 and 8 of the Written Statement on Oath of the Respondent dated 31st May, 2009 and the evidence of the PW3 at page 164 of the Records were referred to in support of the above submission. Learned counsel also claimed that the DW1 and DW2 admitted that the Respondent/Family had enjoyed quiet and long ownership and possession of the land and guarded their interest jealously. He added that if the Respondents’ family did all that they did to the Appellants’ witnesses in challenging them as trespassers and the witnesses admitted all these then the lower court was right in its decision and accordingly, the Appellants’ argument in paragraph 8.05 of their Brief cannot be sustained having regard to the evidence.
On the dispute between the DW2 and Respondent’s father, learned counsel for the Respondent submitted that the dispute was not taken to Onilemona but that it is on record that the Onilemona intervened and the matter was settled (page 169 of the Records) refers and that such intervention alone does not make him an Overlord of the disputed land and was so acknowledged. As regards the complaint of the Appellants about the evidence elicited under cross examination on un-pleaded fact, learned counsel for the Respondent referred us to paragraph 7 of the Statement of Claim where such fact was specifically pleaded. As for the evidence of burning of kola nut trees and cutting down trees; learned counsel argued that these were pleaded facts of exercise of ownership acts which included the arrest of DW1 and DW2 as trespassers on the disputed land, granting of lease to PW1 (pages 8 and 161 -163) and the Rabelat (Nig) Ltd. (page 61-63 Exhibit CL1).
“Learned counsel for the Respondent then anchored his submissions on this issue on the cases of Ebohon v. AG Edo State & Ors. (1994) 6 NWLR (Pt. 349) 190 at 213; Ofomaka v. Commissioner for Education (1995) 8 NWLR (Pt.411) 69 at 87 and Fojule v. FMBN (2001) FWLR (Pt.36) 893 at 901, 904-905; and contended that pleading is fundamentally aimed at controlling evidence and findings of Court and that facts and not evidence are meant to be pleaded. He therefore urged us to discountenance the submissions of the Senior Counsel for the Appellants in amplification of the first Issue; but go on to determine the Issue in favour of the Respondent.
Issue Number 2: On this Issue- which touches on sufficiency of the description of the land in dispute so as to warrant judgment being given in favour of the Respondent; the learned counsel to the Respondent argued that there is no doubt that from the description of the portion of the land claimed by the Respondent, he had established title thereof.
He re-echoed the submission of the learned Senior Counsel for the Appellants on the need for the establishment of the precise, definite and accurate boundaries of the portion of land claimed in order for a grant of declaration of title to be effected and further acceded to the contention of the Learned Senior Counsel that the onus to establish with certainty and precision, the land to which the declaration relates, lies on the Plaintiff. The case of Chief Thomas Ekpemupolo & Ors. v. Godwin Edremoda (2009) 8 NWLR (Pt.1142) 166 at 187 – 188 H-B (SC); were further cited in support of the submission.
Referring us to paragraph 4 and 9 of the statement of claim, paragraph 1 and 9 of the Reply to the statement of Defence/Counter-Claim and the Written Statement on oath of the PW1 on the name of the land, where situated and lying and the boundary neighbours, he took the view that they had discharged the burden by their pleadings and evidence.
He submitted that contrary to the submissions of the learned senior counsel for the Appellants in paragraph 9.05 of their Brief, the extent of the land is not disputed and that was why the Appellants could set up a counter-claim for forfeiture of the customary tenancy.
On the other hand, he further submitted it is clear from the Records that the lands claimed by the parties are held under customary law and both relied on Traditional history in their respective claim and it is common knowledge that boundaries of lands held under native law and custom are identified by streams, rivers, stones, roads and particular species of trees and that survey plans, beacon stones, roads and dimensions are unknown to native laws and customs. Citing Ameyo v. Oyewole (2009) 8 NWLR (Pt. 1142) at 13 paras, F-G; it was again submitted that assuming but not conceding that Survey plan is applicable while considering the nature of title, relied upon by a party, that alone will not sustain the claim to the land.
Alluding to the rejection of the site Plan/Sketch of the extent of the Respondent’s land, learned counsel placed reliance on the case of Emiri & Ors. v. Imieyeh & Anor. (1999) 4 NWLR (Pt.599) 422 at 463 paras. F-G per Kalgo, JSC to submit that, that is not to make the Respondent’s claim un-actionable. From the foregoing authority, he urged us to discountenance the submissions of the learned counsel to the Appellants in paragraphs 8.09, 8.10, 8.11, 8.12, 8.13, 8.14, 8.15 and 8.17 of the Appellants’ Brief as they have not challenged the extent of the Oyanisunwa land but merely the name and location as can be gleaned in paragraph 4 of their Statement of Defence (Amended) page 74, paragraphs 6, 7 and 8 at page 75 and paragraph 14 at page 76 of the Records.
Learned counsel asserted that the Respondent was unequivocal in his Amended Reply to the Statement of Defence at paragraph 8 page 93 of the Records and that there is no where the Appellants stated that Oyanisunwa is part of Adinimodo and that on the authorities of Ibikunle v. Lawani (2008) ALL FWLR (pt.398) 359 at 374 para. D; and Neka Ltd. v. ACB (2004) 1 SCNJ 193 at 205; learned senior counsel for the Appellants cannot give evidence of what is not on record at this stage.
Citing again Oloshe v. Ogunbode (2002) 1 NWLR (pt. 749) 611 at paras. A-D; Oyewole v. Akande (2009) 15 NWLR (pt.1163) 119 at -148 paras. A-B (SC) and Agbareh v. Mimrah (2008) 1 SC (pt 111) 88; he agreed with the learned Senior Counsel for the Appellants on the need for a Surveyor to draw a plan showing accurately the land as described by the party in order to grant a declaration without a survey plan but added that in the case at hand, the Respondent has fulfilled the test by the production of site plan which he urged this Honourable Court to have a look at as it forms part of our records
He referred us to the bases of the rejection of the plan as reflected at pages 155-158 of the Record of proceedings submitting that paragraphs 4 and 14 of the Amended Statement of Defence have not shown that the Appellants had no clear description of the disputed land as the trial Court was in no doubt as to the extent of land claimed when the defence of Appellants was reviewed at page 202 lines 4-6 of the Records.
He reiterated that from the pleadings, the description of the land claimed and the nature of title relied upon by the Respondent and the Appellants having set up a counter-claim, the Respondent had established the onus of describing the land claimed. We were therefore urged to settle the issue in favour of the Respondents.
Arguing ISSUE NUMBER 3 which is whether there was sufficient evidence before the trial court to justify giving judgment in favour of the Claimant/Respondent, the learned counsel for the Respondent took the view that the court below justified its decision by the evidence elicited in the matter having evaluated same; watched the witnesses’ demeanour, weighted the evidence and made findings thereon and applied the principles of law as decided in Onisaodu v. Elewudu (supra) at 527 paras. A-B; 258 paras A-F; 532 para. D; Essien v. Essien (2009) 9 NWLR (Pt.1146) 306 at 334 para. C-G and Aneyo v. Oyewole (supra) at 10 paras. A-B. According to him, the whole exercise by the learned trial Judge at pages 181-183 and 199-206 of the Records were sufficient for the Court below to appreciate the evidence adduced before it to justify the trial Judge’s decision.
Citing again Onisaodu v. Elewaju (supra) at 533 paras. C-F and Essien v. Essien (supra) at 334 paras. C-D and Fasakin v. Swoku (2009) 16 NWLR (Pt. 1167) 305 at 320-321 paras. D-F; learned counsel for the Respondent contended that this court will not interfere with such evaluation by the trial court as the three circumstances under which the court can interfere have been shown by the Appellants from the totality of their arguments. Referring to the submission of the learned Senior Counsel for the Appellants in paragraphs 9.02 and 9.05 of the Appellants’ Brief, the learned Counsel for the Respondents argued that the Respondent did not leave any gap as to his line or chain of succession as he listed same in paragraphs 5 and 6 of his Statement of Claima at page 3 of the Records, identified his father as Yusuf Amuda in paragraph 7 of the Amended Defence at page 75 of the Records and DW2 also identified the said father as Yusuf Oyeyemi listed in paragraph 6 of the Statement of Claim.
“Further references were made to the answers to the cross examination of the DW2 on page 169 of the Records which learned counsel claimed is an admission of the facts as to the chain of succession of the Respondent’s family and strengthened his case. Fayemi v. Oshiomhole (supra) was further cited to argue that the Appellants never challenged the fact that the Respondent’s family lived and farmed on the land till date but what the Appellants did in paragraph 9 of the statement of Defence (page 75 of the Records) is not a specific denial of the fact.
On the contention by the Appellants that the Respondents never proved collection of tributes from Gbada, Ago Ondo and Gbedogbedo, the learned counsel for the Respondents further referred us to paragraph 9 of the Respondent’s Reply to the statement of Defence at page 93 of the Records and the oral Evidence of the Respondent which according to counsel was also not challenged. Pages 169 and 177 of the Records where the evidence of DW2 and 1st appellants corroborated the evidence of the Respondent on the desertion of the above settlements were also cited as making the case of the Respondent more credible. As regards the Defence of customary Tenancy as claimed by the Appellants, it was the submission of the learned counsel for the Respondent that the Appellants contradicted themselves when they in one breath pleaded that Oba Oduwoye granted the land to the Respondent’s father while in their evidence, they stated that the claimant’s forefathers were granted the land. In this respect he cited the cases of Bello v. A.G. Kwara State & Anor. (2009) 4-5 SC (Pt.111) 1 at 31-35 and Ukkaegbu & 3 Ors. v. Nwololo (2009) 1-2 SC (Pt.1) 21 at 42-43 per Ogbuagu JSC and went on to counter the definition of ‘forefather’ and ‘father’ as given by the learned senior counsel for the Appellants by citing the definitions of ‘father’ and ‘forefather’ by the Longmans Dictionary of Contemporary English.
He then submitted that there are material contradictions and inconsistencies in the Appellants’ case which cannot be waived as their evidence is at variance with their pleadings and accordingly on the authorities of Fayemi v. Oni (2009) 2 NWLR (Pt. 1140) 223 at 255 para. A; 285 paras. E-F and Brisu v. Shekarau (2009) 7 NWLR (Pt.1140) 313 at 333 para. D; the Court below was right to have jettisoned the Appellants’ case more so, when the Appellant under cross-examination could not tell the period Oba Oduwoye the purported grantor, reigned neither did he know the Respondent’s family nor the land in dispute (pages 175 – 176 of the Records refers).
Still on payment of tributes which the Appellants claimed the Respondents’ family made to the 1st Appellant through the DW3, the learned counsel cited Damulak Dashi & 3 Ors. v. Stephen Satlong & 1 Anor. (2009) 1-2 S.C. (Pt. II) at 1 per Tabai, JSC; at pages 18-19 which learned counsel for the Respondents claims is on all fours with the case at hand, and submitted that it is never an incident of customary tenancy for a landlord to exercise over lordship through a third party as such we should follow the above cited case.
Revisiting the issue of declaration of title, learned counsel again relied on Nwokorobia w Nwogu & 2 Ors. (2009) 4-5 SC (Pt.11) 145 at 185 and submitted that although a Plaintiff must succeed on the strength of his case, where there is no credible evidence in rebuttal of a credible evidence of the Plaintiff, the trial court would have no choice than making his findings on the evidence of such a Plaintiff. In this case, learned counsel insisted that they as Claimants who relied on traditional history to prove ownership of the land, had proved who founded the land in dispute, how it was founded and the succession of inheritance up to the Claimant. This they did by paragraph 3, 5, 6 and 9 of the Respondent’s Additional Statement on Oath, his answers to cross-examination to the effect that they were all born on the disputed land; the corroboration of these facts by the DW3, DW4 who had known the Respondent as having lived on the land before the dispute arose. Pages 171 – 172 refer.
Furthermore according to learned counsel all these proved that the Respondent’s family had enjoyed long and quite possession on the land, farmed there and had exercised acts of ownership even on people like the Defendants/Appellants’ witnesses.
According to the learned counsel the act of ownership transcended a long period without any objection from the Appellants until six years before the institution of the action as established by PW2 who testified as a tenant of the Respondents some twenty five years before the cause of action without disturbance. Learned counsel alluded to the evidence of the DW1 who had testified that the land belongs to the 1st Defendant/Appellant who collects tributes through the 2nd Appellant, the Respondent having no land in the disputed area but that the witness admitted under cross-examination that it was, rather his (witness) father who migrated to Adinimodo and that he did not know as a Fulani man of 50 years old, how the Yoruba hold their land. Citing again Umeojiako & Anor. v. Elenamuo & Ors. (1990) 1 NWLR (Pt.126) 253 at 267 per Belgore, JSC (as he then was); he submitted that the DW1 is not reliable, credible and competent witness and the lower Court was right in not relying on his evidence.
As for the evidence of the DW2 the learned counsel also submitted that inspite of the fact that he stated that he superintends the 1st Appellant’s land by collecting tributes from occupants of Ago Ondo and Gbedogbedo Villages, he however corroborated the evidence of the Respondent by admitting that Ago Ondo and Gbedogbedo, are now defunct and there is no one at Gbedogbedo now. According to learned counsel, the said witness also did not know from whom he would request Isakole assuming they actually paid. Furthermore, the 1st Appellant, learned counsel asserted, denied knowing any of the Respondent’s family Heads or the entire family (page 175 refers) and all these evaluations were done by the Court which after that exercise, agreed with the Respondent’s case and entered judgment in his favour.
Learned counsel dismissed all the items listed in paragraph 9.20 and 9.21 of the Appellants’ Brief as they were not facts in issue before the trial court and should not be in this Court.
On the contention of the learned counsel for the Appellants that Section 46 of the Evidence Act applies learned counsel for the Respondent submitted that if it applies, it will tilt the more in favour of the Respondent as the Appellants did not prove their root of title to the land where as the Respondent is in possession and exercising ownership more so when the 2nd Appellant or his family cannot validly hold a middleman position between families of the Respondent and 1st Appellant. Dashi v. Satlong (supra) refers.
Finally, learned counsel for the Respondent posited that even if the Court had not considered the issues mentioned in paragraphs 9.20 and 9.21 of the Brief of the Appellants on the authority of Agbareh v. Mimrah (supra) at 132 and Ezerebo v. Ehindero (2009) 10 NWLR (Pt.1148) 166 at 177-178 para. H-A; where one issue in a case settles every other issue, there will be no need for the Court to go on into other issues as the other issues become mere academic issues which the Court is not bound and had no business considering. He then urged us to settle this issue in favour of the Respondent.
RESOLUTION OF ISSUES
I have taken time to reproduce the arguments in the respective Briefs of the parties and it is gratifying that the learned Counsel on both sides have formulated three similar issues for resolution in this Appeal. However, in view of the principles of law entrenched in this aspect of our jurisprudence, I prefer to re-arrange and re-number the order of resolution of the Issues beginning from Issue 2 which shall now be Issue 1, Issue 1 which shall now be Issue 2 and then Issue 3. In the same vein I propose to resolve Issue Number 2 (now Issue Number 1) separately and Issue Number 1 (now Issue Number 2) and Issue Number 3 jointly. Having said this, I must state without any equivocation that it is settled law that since Respondent claimed and the Appellants counter-claimed ownership of the land in dispute, parties were on the same pedestal as far as the onus of establishing title to the land was concerned. See Olubodun v. Lawal (2008) 35 NSCQR 570 at 644, per Ogbuagu, JSC.
In this circumstance, let me restate the time honoured established legal principle as was decided in the celebrated case of Kodilinye v. Odu (1935) 2 WACA 336 at 337-338 per Webber, CJ; which has been followed in a litany of cases by the apex court and this Court that:
“The onus lies on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the Defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the Defendant such a judgment decrees no title to the Defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somehow confused and there is little to choose between the rival traditional stories, the plaintiff fails in the decree he seeks and judgment must be entered for the Defendants.” See Kaiyaoja v. Egunla (1974) 12 SC 55; Enigwe v. Akaigwe (1992) 8 LRCN 486; Adeyeri v. Okobi (1997) 51 LRCN 1529 and Adeniran v Alao (2001) 92 LRCN 3253 at 3267 and 3268 per Uwaifo JSC.
The learned counsel for the Respondent did hit the nail on the head when he submitted on the authorities of INEC v. Oshimhole (supra); Onisaodu v. Elewuju and Fayemi v. Oni (supra) and in particular the dicta of Katsina-Alu and Tabai JJSC in the Onisaodu v. Elewuju’s case at pages 529-530 and 532; that the law is settled that in land matters like the one for declaration as in this appeal, even though the Respondent was not expected to succeed on the weakness of the Appellants and vice versa as far as the counter-claim for forfeiture and perpetual injunction against the Respondents and his privies were concerned, the Respondent and Appellants could rely on the evidence of each other which supports each other’s case. Again, where the evidence of any of the parties’ witnesses supported the case of the opponent against whom they purported to give evidence, the opponent could take due advantage of that evidence to strengthen his case, if such evidence was consistent or supported his case. The above enunciated principle is consistent with the concept of admission against interest by a party to a case.
Now, it has to be emphasized that in a claim for declaration of title the claimant or plaintiff must show the nature of title he seeks, whether it is a case of mere possession or absolute ownership as it has been held that a declaration cannot be made without the specific right claimed by the party. See Emegwara v. Nwaimo (1935) WACA 348; Atari v. Oyekunle (1961) WNLR 281 and Edu v. Cole (1960) WRNLR 18. The learned senior counsel for the Appellants has rightly argued while relying on the authorities of Iro Ogbu & Anor. v. Urum & Anor. (1977) NCAR 168; Ibemere v. Unaegbu (1992) 4 NWLR (Pt.235) 390 at 397 and Owhonda v. Ekpenechi (2003) FWLR (Pt.181) 1565 at 1582 paras. C – D; and this point has been buttressed by the learned counsel for the Respondent who has also, cited the Supreme Court case of Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt.1142) 166 at 187 – 188 paras. H – B. In that case, the apex Court held inter alia that:
The settled principle of law is that a declaration of title to a piece of land can only be granted if the definite, precise and accurate boundaries of it are established. And the onus of proof lies on the plaintiff who seeks a declaration of title to land and for injunction to establish with certainty and precision the area of land to which the claim relates. See Onwuka v. Ediala (1989) 1 SCNJ 102 at 107 and 111, Amata v. Madukwe 14 WACA 500; Okosun Epi v. Aigbedion (1972) 10 SC 532 and Onotaire & Ors. v. Onakpasa & Anor. (1984) 12 SC 19.
In this wise the decision of the West African Court of Appeal in the oft-cited case of Baruwa v. Ogunsola (1938) 4 WACA 159 which has been followed also in a long line of cases including the dictum of Katsina-Alu JSC (as he then was) in the above cited case, is very instructive as the rationale behind the stance of the Courts is that without proof of the boundaries of the land in dispute with definitive certainty, the declaration cannot be granted.
Thus, where a party seeking a declaration of title is able to establish the boundaries with precision and definitive certainty, the dispute between the parties is settled with finality, for it is in the public interest that there should be an end to litigation. In other words, the judgment or declaration by the Court would serve little or no purpose if it is for an indeterminate area since there is nothing upon which such a Judgment can be tied in order to operate as estoppel against parties
It is for the above reasons that a survey plan of the disputed land is almost of utmost necessity since it would assist the Court in determining the exact boundaries of the land for which the declaration would be tied. However, for such plan to be relevant, it must be accurate and must agree with the party’s evidence otherwise its essence would be destroyed. In this case, the issue of the uncertainty of the area claimed has been raised by the learned senior counsel for the Appellant when he submitted that the description of the land by the Respondent in both his pleadings and Statement on Oath was not precise and definitive enough to warrant the grant of declaration of title as done by the Court. We shall consider the merits vel non of this submission anon in the course of resolution of Issue Number 1.
In resolving Issue Number 1 Whether the area of land claimed by the Claimant is clearly and sufficiently described as required by law and precedents; I must not fail to note with regret but with due and greatest respect to the learned Acting Chief Judge, that it would appear that he did not completely appraise the evidence elicited by the parties in this case otherwise he could not have come to the findings and conclusions as stated in pages 203 to 206. In the first place nothing was said about the precise and accurate boundaries of the land for which title was declared to the Respondent. It would be recalled that the learned counsel for the Respondent in paragraphs 3.0.2 to 3.1.3 drew our attention to paragraphs 4 and 9 of the Statement of Claim, paragraphs 1 and 9 of the Amended Reply to the Statement of Defence/Counter-Claim and the evidence of the CW1 and Sulaimon Adeyemi Asaoye who testified as boundary neighbour; to submit that the Respondent established the boundaries or extent of the land with definitive certainty. In the Statement of Claim the Respondent pleaded as follows:
“STATEMENT OF CLAIM”
1. The claimant’s family are customary owner of a large expanse of land known and described as Oyanisunwa situate and lying along the Irra Road in Oyun Local Government Area of Kwara State.
9. The Claimant share boundaries with Asaoye and Odere while the Irra Road separate Claimant land from the 1st Defendant land by the right side of Irra Road, while the Claimant also share boundary with Adini village. The Claimant pleads and relies on the Site Plan/Sketch of the Claimant’s land showing her boundaries.”
As for the Amended Reply to the Statement of Defence/Counter-Claim, the Respondent further pleaded:
“AMENDED REPLY TO THE STATEMENT OF DEFENCE”
1. That in reply to paragraphs 4, 5, 6 and 13 of the Amended Statement of Defence, that the expanse of land known as Oyanisunwa does not include Adinimodo though they share common boundaries and farm alongside each other and the boundaries are marked.
9. In reply to paragraphs 17 and 18 of the Amended Statement of Defence, the Claimant states that the Oyanisunwa family oversees the two villages; and that Ago Ondo is now defunct while few numbers of people still remain at Gbedo Gbedo and they pay tribute-in loads of yam, to the Claimants family.”
It is also pertinent to note that the Respondent merely repeated in his Statement On Oath his averments in, the above paragraphs of the Statement of Claim that he shares boundary with Asaoye and Odere while Irra Road separates Claimant’s land from the 1st Defendant’s land by the right side of the road from Offa. He added that he also shares boundaries with Adini village and pleaded the Site Plan/Sketch of land showing her boundaries.
It is also worthy of note that the Respondent called PW2 his boundary neighbour one Adeyemi Asaoye who testified by his Statement on Oath as follows:
1. I am Adeyemi Asaoye Male, Muslim, Nigerian Citizen, I live at Irra Road Oyun Local Government Area of Kwara State. I am a farmer and about 70 years old. I am a Principal Member of Asaoye village. I know the Claimant’s family and I also know the 1st and 2nd Defendants’ family.
2. We the Asaoye and Claimant family share common boundary on our ancestral family land along Irra Road from time immemorial and these boundaries are settled by our progenitors. I don’t know any other family on that expanse of land known as Oyanisunwa. I know that the entire land known as Oyanisunwa belongs to the Claimant’s family.
3. I know Adini Village. We Asaoye use to pass through their Village to our farm. I know that Adini share boundaries with Oyanisunwa and that Adini have their own and different from the land that belongs to the Oyanisunwa family.
Under cross-examination the witness in the question and answer session between him and learned counsel for the Appellants, stated as follows:
Ques: From where did you come to court this morning?
Ans: From Offa.
Ques: What is your family compound in Offa?
Ans: Onigba compound.
Ques: In your statement on oath, what age did you state and what is your age?
Ans: I don’t know my age.
Ques: Nobody is in Asaoye village now.
Ans: I left Asaoye village when my son was killed and came to live in Offa.
Ques: That your son killed is called Ore-Ofero and came from Asaolu Compound in Offa.
Ans: The name of my son is Raufu Ore-Ofero. He was living in Asalofa Compound Offa.
Ques: The 2nd Defendant is the Mogaji of Adinimodo
Ans: I don’t know him.
Ques: If anybody said you know 2nd defendant that person would be lying?
Ans: I never met 2nd defendant in my life.
Ques: Do you know the 1st defendant?
Ans: I don’t know the 1st defendant.
Ques: Do you know how the claimant acquired the land?
Ans: The claimants are the owner of their land.
Ques: Who was the first member of the claimants’ family to get to the disputed land?
Ans: Aderibigbe.
Ques: Do you know the size of the land in dispute between the parties?
Ans: I don’t know the size but we share boundaries.
Ques:What year did Aderibigbe settle on the disputed land?
Ans: I cannot tell but it is long ago.
Ques: The Claimant is your Friend?
Ans: He is not my friend.
Ques: Can you write and sign
Ans: I can write and sign.
At that juncture the witness was made to sign his signature twice on plain sheets of paper and his specimen signatures were tendered as Exhibits CLX and D1.
Upon a careful perusal of the evidence of Adeyemi Asaoye, the Respondent’s boundary neighbour together with the pleadings and evidence of the Respondent, I am of the candid view that he has not established with definitive certainty the extent of the land claimed by him (the Respondent) so as to warrant title being declared in his favour. In other words, the extent of the land to which the declaration will be tied is indeterminate considering the fact that the site Plan/sketch was rejected in evidence and the court did not visit the locus in quo.
I am not oblivious of the long settled position of the law as enunciated in Kwadzo v. Adjei (1944) 10 WACA 274 and followed in cases like Eze Okeke v. Oga (1962) 1 ALL NLR 482 at 484 (FSC); Osho v. Ape (1998) 6 SCNJ 139 at 154 and particularly Emiri & Ors. v. Imieyeh & Anor. (1999) 4 NWLR (Pt. 599) 442 at 463 paras F-G per Kalgo JSC ably cited by learned counsel for the Respondent where the learned emeritus Justice of the apex Court rightly intoned thus:
There is however no law or practice which established that a plan is sine qua non to make a claim for declaration of title to land but there must be some clear description to make a disputed land ascertainable. Where there is no difficulty in identifying the extent of the land in dispute or the parties have agreed that an-identifiable piece of land is in dispute between them, even if they refer to the land with different names, a declaration of title to the land can be made without any plan thereof.”
From the above dictum of his Lordship and other authorities above cited, it is clear that a Plan is not of utmost necessity where parties know the area of land in dispute. However a plan is only dispensable in certain circumstances and the test in such circumstances is whether as in this case, a Surveyor armed with the record of proceedings of the Court below can produce an accurate plan without even going to the land taking into consideration the description given by the Respondent and his witnesses. See Babatola v. Aladejana (2001) FWLR (Pt.61) 1670 at 1680 H; Owhonda v. Ekpenechi (2003) FWLR (Pt. 181) 1582 at 1582 C-D.
It may be conceded as submitted by counsel to the Respondent that boundaries of land held under native law and customs are identified by streams, rivers, stones, roads and particular species of trees and that Survey Plans, beacons and dimensions are unknown to land under native law and custom. However, even under custom, the dimensions of land are always proved by relating to the boundary neighbours or features like streams, rivers, stones and special species of trees as located on the four cardinal points of front, back, right and left, in other words North, South, East and West. See per Belgore (as he then was) in Ajao v. Adigun (1993) 3 NWLR (Pt.282) 389 at 387 D-C.
In this particular case the description of the land by the Respondent and his witness is jumbled and the Respondent realised the intricate nature of the extent or boundaries of the land he was required to prove, hence the filing of the plan which was rejected. He has called on us to have a look at the sketch map/plan of the land which was tendered and rejected for according to him, the document is before us. It has to be noted that in rejecting the plan/sketch the learned Ag. Chief Judge at page 157 of the Records relied on Section 3(b) of the Survey Law Cap S.13, Vol. 4, Laws of Kwara State, 2006 which provides thus:
“No map, plan or diagram of land……… If prepared after the 16th of May, 1918, shall, save for good cause shown to the court, be admitted in evidence in any court, unless the map, plan, or diagram was prepared signed by a Surveyor or is a copy of a map, plan or diagram so prepared and signed and certified by a Surveyor as being a true copy.”
The learned trial Judge rightly held that the above provision empowers a party to raise an objection (as the Appellants had done in the lower court) to the admissibility of any map, plan, or diagram of land sought to be tendered in proceedings like the one at hand where such map, plan and/or diagram fails to comply with the provisions of the Survey Law of Kwara State as cited above. At the trial and even here, the Respondent did not and has not shown good cause why the plan/sketch of the land which was rejected by the Court below should be admitted and acted upon herein. The Learned Counsel for the Respondent has also not shown that between the 13th day of May, 2009 when the learned trial Judge rejected the admissibility of that document and now, that the case is under appeal, the law has changed so as to enable us take a second look at a document which was sought to be tendered and was rightly rejected for non-compliance with statutory provision like the Survey Law of Kwara State.
Above all, there is no cross-appeal on the rejection of the document and as such, the plan/sketch of the land stands rejected for all intents and purposes as far as this case is concerned. With due respect to the learned Counsel to the Respondent, I agree with the learned Senior Counsel for the Appellants that the description of the boundary and the extent of the land was vague particularly where the 1st Appellant pleaded copiously in paragraphs 10, 11, 14, 17 and more particularly stated in paragraph 18 of the Statement of Defence/Counter-Claim and testified in paragraph 3 of his Statement on Oath that “I know as a fact that the disputed land situates at Adinimodo village along Irra road within Ilemona land of Oyun Local Government Area of Kwara State” and that the land called Oyanisunwa is in fact part of Adinimodo which the Respondent occupied as customary tenant and for which he paid “tribute/Isakole and there is no land called Oyanisunwa as purported by the Respondent. It would be recalled that apart from the inability of the Respondent and his witness who purported that their Oyanisunwa Land was demarcated to show clearly the demarcation marks, when learned counsel for the Respondent insinuated that there is demarcation on the land in dispute, the 1st Respondent replied that the whole land belongs to him and there is no demarcation neither is it true that he destroyed the demarcation but that he gave part of the land to the Christian Community.
On the other hand, under cross-examination, the Respondent admitted all the facts as pleaded by the Appellants and as testified by him in respect of his ownership of the land in dispute. For instance, in the question and answer
Ques: Do you know Gaa Sadiku, Gaa Aburo Sadiku and Gaa Oko Arugbo which are adjacent to the disputed land. They are not far from the disputed land?
Ans: Yes I do and they are not far from the disputed land.
Ques: It is the 1st defendant who is the Elemona of Ilemona who has control over these Gaa’s.
Ans: Yes.
Ques: Gbada village is also not far from the disputed land?
Ans: Yes.
Ques: The present Mogaji of Gbada village was appointed by the 1st defendant?
Ans: Yes.
Ques: Where is Offa-Esun you mentioned in your written statement on oath?
Ans: Near the Naval College Offa.
Ques: The distance between the disputed land and Offa is about ten kilometres?
Ans: Yes.
From the foregoing answers to the cross examination of the learned counsel for the Appellants it is clear that the onus cast on the Respondent to prove the extent of the land has not been discharged. I agree therefore, with the learned senior counsel for the Appellants that in this case from the description of the land and the boundaries given by the Respondent and witnesses, no Surveyor can draw a plan of the land with accuracy as regards the definite boundaries and extent of the land in dispute.
The submissions of the learned counsel for the Respondent in paragraphs 3.1.4 to 3.1.8 citing Ibikunle v. Lawani (supra); Neka v. ACB (supra); Oloshe v. Ogunbode (supra); Oyewole v. Akande (supra) and Agbareh v. Mimrah (supra) are not apposite to the facts and circumstances of this case and they are accordingly discountenanced. Issue Number 1 is therefore resolved against the Respondent and in favour of the Appellants.
Issue Number 2: Whether the fact that damage to the claimant’s farm was found to be caused by the act of the DW1 and DW2 is sufficient evidence of ownership of the land claimed by the claimant and Issue Number 3 whether there is sufficient evidence before the Court to justify giving judgment to the Claimant? In the resolution of these two Issues it suffices to state that I am in total agreement with the learned counsel for the Respondent who has ably submitted by placing reliance on the case of Idundun v. Okumagba (1976) 1 NMLR 200 (1976) NSCC (Vol.10) 445 at 454-455 per Fatayi-Witliams JSC; that there are five ways of proving title to land
In that cause celebre, the learned judicial icon at pages 210 and 211 of (1976) 1 NMLR 200; posited inter alia:
“As for the law involved, we would like to point out that that it is now settled there are five ways by which ownership of land may be proved…..
Firstly, ownership of land may be proved by traditional evidence….
Secondly, ownership of land may be proved by production of document of title which must of course, be duly authenticated in the sense that their execution must be proved, unless they are produced from proper custody in the circumstances giving rise to the presumption in favour of due execution in the case of documents 20 years old or more or at the date of the contract (see Section 129 of the Evidence Act and Johnson v. Lawanson (1971) 1 ALL NLR 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 sufficient length of time and are numerous and positive enough to warrant inference that the person is the true owner (See Ekpo v. Ita 11 NLR 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 45 of the Evidence Act. Cap. 62). Such acts of long possession, in a claim of declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than offence; moreover, under Section 145 of the Evident Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title (See Da Costa v. Ikomi (1968) 1 ALL NLR 394, 398).
Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute (see Section 45 of the Evidence Act Cap.62).”
I have taken the trouble to reproduce in extenso the dictum of His Lordship Fatayi-Williams, JSC in the above cited case in view of its considerable relevance and assistance to us in resolving the issue in this appeal on whether there was sufficient evidence to warrant the decision of the lower court.
A careful perusal of the Record of proceedings and the totality of the evidence elicited by the parties would reveal that the Respondent as claimant in the lower court relied on methods 1, 3 and 4 of the five ways enumerated/enunciated in the Idundun case to prove his case that is to say:
1. By traditional History;
2. Production Of documents of title;
3. By acts of the person(s) or farming on the land in dispute provided the acts extended over sufficient length of time numerous and positive enough so as to warrant the inference that the Respondent or his family are the true owners of same;
4. Acts of long Possession.
As for the Defendants/Counter-Claimants/Appellants, it would appear, also that they relied on the 1st 3rd and 4th of the five ways to prove the fact that they owned the land and that the Respondent is their customary tenant, who has challenged their over-lordship and therefore should forfeit their right to occupation and enjoyment of the land. We shall from the foregoing background proceed to consider the respective cases of the parties for the purpose of resolving the issues.
In respect of the Issues, it would be recalled that the Respondent pleaded in paragraphs 5 to 8 of his Statement of Claim as follows:
“5. The Claimant family were the first settlers on the land when their progenitor Aderibigbe migrated from Offaesun to settle at Oyaninsunwa. The settlement was named Oyaninsunwa after the wife of Aderibigbe who was a renowned Oya worshipper.
6. That when Aderibigbe the first father died he was succeeded by Oloyede after whom was Sule Opatola after whom was Ramonu. After Ramonu, was Aliu and after Aliu was Alhaji Bello Ajieye who was succeeded by Yusuf Oyeyemi after Yusuf Oyeyemi was Lawani Dadiran and the present Family head is Jimoh Olabode.
7. All the aforementioned people lived and farmed on the land with all members of the family till date and have exercised acts of ownership on the land.
8. The Claimant’s family collects tribute (Isakola) from Gbada, Ago Ondo and Gbedo Gbedo settlements who farm on the Oyaninsunwa Land.”
From the foregoing, there is no doubt that the Respondent apart from pleading the traditional history of how the land was acquired by his progenitor Aderibigbe who first settled thereat, also pleaded acts of persons/Respondent on the land extending over sufficient length of time numerous and positive enough as to warrant the inference that the Respondent or his family is the true owner of the land. For instance, the Respondent had pleaded in paragraph 7 of the Statement of Claim that his progenitor and all his successors-in-title (members of his family) lived and farmed on the land till date and had exercised acts of ownership on the land. He further pleaded in paragraph 8 of the Statement of claim that the Claimant’s family collects tributes (Isakole) from Gbada, Ago-Ondo and Gbedo Gbedo settlements who farm on the Oyanisunwa land.
By the above averments the Respondent had ordinarily pleaded acts of long possession and enjoyment of the land numerous and positive enough to warrant the inference that he or his family are the owners of the land in dispute. However, in reaction to the above averments, the Appellants vehemently joined issues in their Joint Statement of Defence and Counter-Claim as follows:
3. The 1st Defendant is the incumbent Elemona of Ilemona while the 2nd Defendant is the incumbent Mogaji (Head) of Adinimodo Village via Ilemona in Oyun Local Government Area of Kwara State.
4. The Defendants aver that Adinimodo Village forms part of the 1st Defendants area of land in Oyun Local Government Area of Kwara State, being overseen and managed by the 2nd Defendant for the 1st Defendant.
5. The Defendants aver that all successive Mogajis of Adinimodo, to wit: Oyetade, Sanni, Adebayo, Abdulsalami, Subairu and the 2nd Defendant, who is the 6th Mogaji, were appointed by the Elemona of Ilemona in Office.
6. The Defendants further state that the incumbent Mogaji of Adinimodo collects tributes (Isakole) from the occupants and users of the 1st Defendant’s Land in Adinimodo for appropriate delivery to the Elemona of Ilemona in office.
7. The Defendant aver that the claimant’s father, Yusuf Amuda during his lifetime gave Isakola (tributes) in the nature of yam tubers to the 2nd Defendant’s father, Salami, who was the 4th Mogaji of Adinimodo, for appropriate delivery to the then reigning Elemona of Ilemona as the customary landlord of the land in dispute for the use of the Land.
8. The Defendants state that the Claimant’s father went to meet the then reigning Elemona of Ilemona, Late Oba Oduwoye, to beg for permission to use part of the disputed land for farming purposes only.
9. The Defendant state that the Claimant’s family only used the disputed land for agricultural use only, while the family social activities were restricted to their native town, Offa.
10. The Defendants state that the disputed land situate about 7 kilometres from Offa in Offa Local Government Area of Kwara State.
11. The Defendants state that the adjacent lands to the land in dispute, to wit: Gaa Sidiku Adinimodo, Gaa Oko Arugbo Adinimodo and Gaa Aburo Sidiku Adinimodo, belong to the 1st Defendant as the customary custodian of Ilemona land.
12. The 1st Defendant states that Settlers on his lands contribute and forward Isakole through the 2nd Defendant for the use of the land.
13. The Defendants further state that the adjacent land whereon the Diocese of Offa (Anglican Communion) and the Redeemed Christian Church of God have their church buildings at Adinimodo were conveyed to them by the 1st Defendants as the customary custodian and owner of the land. The Defendants plead and shall rely on Deeds of Conveyance dated 10th August, 2003 and Allocation of Land Agreements dated 20th June, 1999 and 20th July, 2002 at the hearing of this suit.
14. The Defendant state that the disputed land is not traditionally known nor described as Oyaninsunwa.
15(a). The 1st Defendant who is the 20th Elemona of Ilemona avers that his progenitor, Oba Arolu, who was the 1st Elemona of Ilemona and reigned between 1188 A.D. to 1255 A.D was the 1st settler on Ilemona and which includes the land in dispute.
15(b). The 1st Defendant further states that successive Elemona of Ilemona have had dominion and control over Ilemona land and this include the land in dispute.
16. The Defendants state that successive members of the claimant’s family members who farmed on the disputed land did so as customary tenants of the 1st Defendant and conduct their activities on the land within the frame of dictate of the 1st Defendant and paid Isakole to the reigning Elemona.
17. The Defendants state that the reigning Elemona appoints the Mogaji (head) of Gbada, who in turn, oversees the activities on the 1st Defendant land at Ago Ondo and Gbedo Gbedo.
18. The 1st defendant states that he is the customary title owner of the land in Gbada, Ago-Ondo and Gbedo Gbedo and he shares boundary with the Onira land in the west.
19. The Defendants state that the Claimant stopped paying tribute to the 1st Defendant in the year 2000 when the claimant stated that his family had long been on the disputed land and were accordingly justified to stop paying tribute (Isakole) to the 1st Defendant.
20. The 1st Defendant further avers that he protested the Claimant’s continuous use of the disputed land when the claimant by positive act/omission and utterances challenged the 1st Defendant’s over lordship of the disputed land by refusing to pay tribute (Isakole) to the 1st Defendant through the 2nd Defendant.
21. The Defendants aver that before the filling of this suit, the claimant had filed suit No. UACO/CVF/29/2005 before the Upper Area Court, Omu-Aran sitting in Offa against the same Defendants and claiming the same reliefs as in the present suit.
22. The defendants hereby give notice that during the hearing of this suit, the Defendants shall be heard by way of preliminary objection that the present suit is an abuse of the earlier Suit No. UACO/CVF/25/2005 pending before the Upper Area court, Omu-Aran.
32. WHEREOF the Defendants pray the Noble Court not to grant any of the doomed and spurious reliefs in paragraphs 12(1) and (ii) of the Statement of Claim but to dismiss same in its entirely as being vexatious, lacking in merit and mere gold digging exercise.”
The Defendants/Counter-Claimants/Appellants in their Counter-Claim further pleaded inter alia:
“1. The Defendants repeat and adopt Paragraphs 1 to 23 of the Statement of Defence above as if same were set out seriatim.
2. The 1st Defendant states that all settlers in Adinimodo Village, Gaa Sidiku Adinimodo were settled with the consent and approval of the 1st Defendant.
3. The 1st Defendant states that all settlers on his said land pay tribute in the nature of yam tubers through the Mogaji of Adinimodo for onward delivery to the Elemona of Ilemona in office as the customary landlord of the area of land.
4. The 1st Defendant states that as a demonstration of his acknowledgement of over lordship and power of control over the area of land in dispute he collects development taxes from the various villages and Gaas (settlements) within Adinimodo Area for appropriate payment into the coffers of the Oyun Local Government Authority of Kwara State.
The 1st Defendant pleads and shall rely on some of the said issued tax receipts at the hearing of this suit.
5. The 1st Defendant further states that all other occupants/users of his Adinimodo land conduct their activities on the land strictly within the frame, supervision, direction and control of the 1st Defendant.
6. The 1st Defendant further states that the Claimant has commenced felling and selling some of the commercial trees on part of the 1st Defendant said land without recourse to seeking the approval of the 1st Defendant.
7. The 1st Defendant further states that the claimant recently gave permission to some persons to enter and put to use some parts of the 1st Defendant’s said land without first seeking and obtaining the consent of the 1st Defendant.
8. The 1st Defendant states that by the aggregate of the facts contained herein the claimant has challenged the authority and over lordship of the 1st Defendant over him on the land in dispute.”
It would be recalled that on the 1st day of June, 2009, the Claimant/Respondent filed an Amended Reply dated 28th May, 2009 to the Statement of Defence/Counter-Claim along with an Additional Statement on Oath as contained in page 94 of the Records. The Claimant/Respondent in paragraphs 1 to 10 thereof stated thus:
1. That in reply to paragraphs 4, 5, 6 and 13 of the Amended Statement of Defence, that the expanse of land known as Oyanisunwa does not include Adinimodo though they share common boundaries and farm alongside each other and the boundaries are marked.
2. That in reply to paragraphs 7, 16, 19 and 20 of the Amended Statement of Defence, Yusuf Iyanda, the Claimant’s father was not the only Oyanisunwa in the village and neither he nor any other family member paid tribute to the 1st Defendant.
3. That Yusuf Iyanda was not living in Oyanisunwa even after he became the head of the family and that the following were his elder brothers Aliu Modupefoluwa, Shittu Arikeuyo while Alhaji Lawani, Jimoh Asunmo Kolawole and Jimoh Iyanda were his younger ones and none paid tribute to the 1st Defendant.
4. In reply to paragraph 8, 9 and 14 of the Amended Statement of Defence, he further averred that their progenitor had settled on the land long before the Ilemona came to settle and that his father was born on the Oyanisunwa land and pleaded not with any person to use the land.
5. That part of the land now claimed by Gbada was leased to Rabelat Nig. Ltd. owned by a member of Alebelewe family who was brought to the Claimant’s family and pleaded for by the then Onilemona for lease of the land. The claimant pleaded the Agreement.
6. In reply to paragraph 15(a) and (b) of the Amended Statement of Defence and Counter-Claim, the Claimant avers that the 1st Defendant has never had dominion or control over any land other than their family land, if ever they had one.
7. The Claimant further averred that a king only rule but does not control ownership of land because land belong to individual family compounds and the land in dispute belong to Oyanisunwa family.
8. In reply to paragraphs 11 of the Amended Statement of Defence, the Claimant states that all those villages are one Adinimodo and share common boundaries with Oyanisunwa.
9. In reply to paragraphs 17 and 18 of the Amended Statement of Defence, the Claimant states that the Oyanisunwa family oversees the two villages; and that Ago Ondo is now defunct while few numbers of people still remain at Gbedo Gbedo and they pay tribute-in loads of yam, to the Claimants family.
10. In reply to the Counter-Claim the Claimant adopts paragraphs 1-9 above and further states that the Claimant’s family is not under any obligation to seek or obtain the consent of the 1st Defendant to do anything on the land.
In proof of the above averments/claim, the witness repeated the averments in the Statement of Claim when he deposed in his Statement on Oath as follows:
1. That the claimant’s family is the customary owner of a large expanse of land known and described as Oyaninsunwa situate and lying along Irra Road in Oyun Local Government Area of Kwara sSate.
2. That the Claimant family was the first settler on the land when its progenitor, Aderibigbe migrated from Offaesun to settle at Oyaninsunwa. The Settlement was named Oyaninsunwa after the wife of Aderibigbe who was a renowned Oya worshipper.
3. That when Aderibigbe the first father died, he was succeeded by Oloyede after whom was Sule Opatola after whom was Ramonu. After Ramonu was Aliu and after Aliu was Alhaji Bello Ajieye who was succeeded by Yusuf Oyeyemi after Yusuf Oyeyemi was Lawani Dadiran and the present Family head is Jimoh Olabode.
4. That all the afore-mentioned people lived and farmed on the land with all members of the family till date and have exercised acts of ownership on the land.
5. That the Claimant’s family collects tribute (Isakole) from Gbada, Ago Ondo and Gbedo Gbedo settlements who farm on the Oyaninsunwa Land.
In the Additional Statement on Oath he averred thus:
“That 1st Defendant or his predecessors has never had any dominion over any land other than his family land, if ever they have one, and that a king only rule but does not control ownership of land because land belong to individual families and the land in dispute belong to the Oyanisunwa family not Elemona family.”
It is pertinent to note that at the hearing and after the Respondent and witnesses had adopted their Statements on Oath, they were cross-examined. For the CW1/Respondent upon being questioned by learned counsel Adekunle Aminu Esq. for the Defendants/Appellants, the following dialogue ensued:
“Ques: Ilemona is the headquarters of OYUN Local Government?
Ans: Yes.
Ques: Adinimodo Village is one of the villages in Oyun Local Government.
Ans: Yes.
Ques: Adinimodo is under Ilemona?
Ans: That is true.
Ques: The 2nd defendant is the Mogaji of Adinimodo?
Ans: Yes
Ques: The 1st defendant appointed the 2nd defendant as the Mogaji of Adinimodo?
Ans: Yes.
Ques: No member of your family presently lives on the disputed land?
Ans: We were all born there but none of our family is living there now.
Ques: The land in dispute is adjacent to Adinimodo Village?
Ans: Yes.
Ques: There is a compound belonging to your family called Oyanisunwa in Offa?
Ans: Yes.
Ques: You are a native of Offa?
Ans: Yes.
Ques: All your activities like burial and naming ceremony are held at your family compound in Offa.
Ans: Yes.
Ques: Villages like Gbada, Ago-Ondo and Gbedogbedo are all different from Adinimodo village?
Ans: Yes,
Ques: Your father was Yusuf Amuda of blessed memory?
Ans: Yes.
Ques: The father of the 2nd defendant is Salami and that you knew him?
Ans: Yes.
Ques: The father of defendant, Salami was the Mogaji Adinimodo when he was alive?
Ans: Yes.
Ques: The distance between the disputed land and Offa is about ten kilometres?
Ans: Yes.
Ques: Do you know Gaa Sadiku, Gaa Aburo Sadiku and Gaa Oko Arugbo which are adjacent to the disputed land. They are not far from the disputed land?
Ans: Yes I do and they are not far from the disputed land.
Ques: It is the 1st defendant who is the Elemona of Ilemona who has control over these Gaa’s.
Ans: Yes,
Ques: Gbada village is also not far from the disputed land?
Ans: Yes.
Ques: The present Mogaji of Gbada village was appointed by the 1st defendant?
Ans: Yes.
Ques: Where is Offa-Esun you mentioned in your written statement on oath?
Ans: Near the Naval College, Offa.
PW1 in his Statement on Oath deposed as follows:
“1. Taju Adesina, Male, Muslim, Nigerian Businessman of Kure’s Compound Offa do make oath and state as follows:
1. That I know the Claimants Family.
2. That the Claimant family granted to me part of their Land known as Oyanisunwa for farming purposes about twenty five years ago, and having been farming on the land without any disturbance.
3. That I know that the land in dispute belongs to the Claimants and I do not know the Defendants to own any land at Oyanisunwa.
4. That I make this oath believing same to be true.”
Under cross-examination the following dialogue also ensued:
Ques: What is the name of your family compound in Offa?
Ans: Sobaloju Compound, Offa.
Ques: So you are not of Kure Compound Offa?
Ans: I am from KURE Compound from where we left for Omo-owo Area in 1979, My father’s compound is Sobaloju.
Ques: You are a native of Offa?
Ans: Yes.
Ques: You don’t know the history of how the claimants owned the land on which you farm?
Ans: I don’t know the history of the land but I got the land from the claimants.
Ques: What year did the claimants give you the land in dispute for farming?
Ans: It is around 1988 – 1989
Ques: The Land-in-dispute is around Adinimodo in Oyun Local Government.
Ans: Yes.
Ques: You know the 1st defendant?
Ans: Yes.
Ques: He is the owner of land in Adinimodo Budo Gbada, Gaa Sikiru, Gaa Gbedogbedo.
Ans: Besides the peclu…..in the dispute land, I don’t know who owns those villages.
Ques: You don’t know the history of the disputed land
Ans: I don’t know the history, I only farm there and that the claimant gave me the land for farming.
The evidence of PW2 had been reproduced earlier in our consideration of Issue Number One.
In their defence the 1st Defendant/Appellant deposed in his Statement on Oath as follows:
“I, OBA YUSUF OMOKANYE, Male, Muslim, Traditional Ruler, Nigerian – citizen of Elemona Palace, Ilemona, Oyun Local Government Area of Kwara State hereby make oath and state as follows:
1. That I am the 1st Defendant in this case and by virtue position r of my am quite conversant and familiar with the facts of this case.
2. That I am the incumbent Elemona of Ilemona in Oyun Local Government Area of Kwara State and I have traditional dominion and control over the entire Ilemona land.
3. That I know as a fact that the disputed Ilemonan land of Oyun Local Government Area of Kwara State.
4. That I know as a fact that successive Mogaji of Adinimodo were appointed by the reigning Elemona of Ilemona.
5. That I appointed the 2nd Defendant as the 6th Mogaji of Adinimodo village.
6. That the Mogaii Adinimodo and manage Adinimodo land for and on behalf of the reigning Elemona and collected Isakole (tribute) from the customary tenants on the land.
7. That I know as a matter of fact that the Claimant forefather came to meet the then Late Elemona, Oba Oduwoye, to beg for permission to use part of the Elemona land at Adinimodo along Irra Road for farming purposes only.
8. That the Claimant’s forefathers paid tributes to the reigning Elemona for the use of the land.
9. That I know as a fact that the Claimant hails from Offa in Offa Local Government Area of Kwara State which is about 7 kilometre from the disputed land.
10. That I know as a fact that Gaa Sidiku Adinimodo, Gaa Oko Arugbo Adinimodo and Gaa Aburo Sidiku Adinimodo are adjacent to the disputed land and they form part of Ilemona land.
11. That I know as a fact in exercising my right of control over the entire parcel of land, I conveyed parts of my said land in Adinimodo Area to religious organizations, individuals and groups. Photocopies of relevant Deed of conveyance dated 10/8/2003 and Allocation of Land Agreements dated 20/6/1999 and 20th July, 2002 are attached as Exhibits A, B and C.
12. That I know as a fact that the land is not traditionally called Oyaninsunwa land.
13. That I customarily appoint Mogaji (head) of Gbeda who oversees and collects tributes from my customary tenants at Ago Ondo and Gbedo for appropriate delivery to me.
14. That I know as of fact that I have been protesting the Claimant’s refusal to pay tributes to me for the use of disputed land.
15 That I collect development taxes from occupants of Ilemona lands of Adinimodo, Gaa Aburo Sidiku Adinmodo and other villages and settlements for appropriate payment into the coffers of Oyun Local Local Government Authority of Kwara State. Some of the tax receipts are attached as Exhibits D, E, F and G.
16. That the settler at Gaa Sidiku Adinimdo, Gaa Oko Arugbo Adinimodo and approval and they pay tributes to me in the nature of yam tubers for their use and occupation of my land.
17. That I know as a matter of fact that all the said occupants/settlers on my land at Adinimodo conduct their activities subject to my supervision, direction and control.
18. That the claimant has since commenced felling and selling trees on my said land devoid of my consent and or approval.
19. That I traditionally appoint the Mogaji (head) of Gbada, who in turn oversees the activities on my land at Ago Ondo and Gbedo Gbedo and collects tributes (Isakole) from my customary tenants in the settlements.
20. That I make this oath in good faith.”
On the 28th day of July, 2009, when the 1st Appellant adopted his Statements on Oath, he tendered the tax receipts for the collection of taxes on behalf of Oyun Local Government and the documents he used in
transferring land to some persons as contained in paragraphs 11 and 15 of his Statement on Oath which documents were admitted as Exhibits D1, D2, D3 and D4. Under cross-examination he stated that he was 75 years old; that the name of his predecessor is Samuel Oyeyemi and that the Eesa under Samuel Oyeyemi was Simeon Opatola deceased whom he did not know neither would he know that the said predecessor Oba Oyeyemi went to the family of the Claimant to ask for grant of land for some people.
On further cross-examination, he would not also know that an Agreement was signed by the late Eesa on behalf of his predecessor because he was not on the throne then so also would he not know that part of the disputed land was negotiated by his predecessor to be granted to the Alebelewe family. The witness also could not also tell how long Oba Oduwoye reigned, was installed but stated that it was the father of the Claimant who went to Oba Oduwoye to beg for the land for farming purposes. Asked again when he was installed as the Elemona he replied that it was in 1991 but he could not tell when the Claimant’s father died because the said Claimant lived at Offa and he did not know them.
When learned counsel for the Respondent further put it to him that the forefathers of the Claimant paid tribute to none of the Elemonas, he replied that they are paying tributes and they were used to paying through the Mogaji who will then pay to him. Upon being shown Exhibit CL1 to identify the signature of Simeon Opatola (the late Eesa), he replied emphatically thus: “I know nothing About Exhibit CL1, The Eesa cannot sign on our behalf, Exhibit CL1 is fraudulently procured.”
Upon being questioned further whether he knew the following persons Oloyede, Sule Opatola, Ramanu, Aliyu, Alhaji Bello Ajileye, Yusuf Oyeyemi; Lawani Dediran and Jimoh Olabode who were heads of the family of the Respondent and whether none of them paid tribute to any Elemona, he replied that he would not know because the tributes are collected on his behalf and brought to him in his palace. When asked again whether the dispute started about 6 years before the institution of the action because he stopped the people of Gbada from paying tribute to the family of the Claimant, he replied that the dispute started 9 years before the action and that he did not say that the trouble started because of his stopping the Gbada people from paying tribute to the Respondent’s family. He further denied that the Claimant had come personally to settle the issue of tribute and that is why they are still in the dispute.
Learned counsel put it to him that in Yoruba land parcels are either held by communities or individual families and he replied that the land belongs to the king. He was then asked whether nobody presently resides at Ago Ondo and Gbedo Gbedo and he replied in the affirmative in respect of Ago Ondo but would not know of Gbedo Gbedo. Finally, when learned counsel for the Respondent insinuated that there is demarcation on the land in dispute, he replied that the whole land belongs to him and there is no demarcation, neither is it true that he destroyed the demarcation but that he gave part of the land to the Christian Community.
The DW1 in support of the Appellants’ case deposed to the following facts in his Statement on Oath:
I, SADIQ YAHAYA, Male, Muslim, Farmer, Nigerian citizen of Gaa Sidiku Adinimodo via Ilemona, Oyun Local Government Area of Kwara State hereby make oath and states as follows:
1. That I am the incumbent head of the Fulani in Ilemona land of Oyun Local Government Area, Kwara State.
2. That I know the parties herein.
3. That I also know the father of the Claimant herein who farmed on the disputed land before his death some years back.
4. That I know as a matter of fact that the disputed land belongs to the Defendant herein who collects tributes from the occupants of his land through the 2nd Defendant.
5. That I know as a matter of fact that the 2nd Defendant herein, manages and supervises the land for the 1st Defendant and collects tributes from the occupants/users of the land at Gaa Sidiku Adinimodo, Gaa Oko Arugbo Adinimodo and Gaa Aburo Sidiku Adinimodo.
6. That I further know as a matter of fact that the claimant has no land in the disputed area.
7. That my community and residents of Gaa Oko Arugbo Adinimodo and Gaa Aburo Sidiku Adinimodo pay our development taxes into the coffers of Oyun Local Government Authority through the 1st Defendant.
8. That I swear to this in good faith,
On the 28th of August, 2009, he adopted his said Statement and when crossed-examined he stated that he was 50 years old; that he could not tell how many Elemona had reigned in Ilemona because he is a migrant. He further stated that he would not know the date of enthronement of the current Onilemona but he was already in Ilemona when he Elemona was crowned. When asked the name of the Claimant’s father, he stated that he was Yusuf Amuda and that his (witness’) father migrated to Adini when he (witness) was very young and grew up thereat. He stated further that he could not have known anybody called Aderibigbe or Oloyede, Opatele, Ramanu, Aliyu and Alhaji Bello or Lawani Adediran but he knew Yusuf Oyeyemi. As for Jimoh Olabode, the witness said he knew him because they worked together in Ilemona at a farm and apart from that, during yam festival they used to contribute yams together to Mogaji Adinimodo. The said Jimoh Olabode, he further explained, comes from Offa to farm in Adinimodo.
When further questioned by learned counsel for the Respondent, he admitted that about 20 years before the action in court the Respondent caused the police to arrest his father because his said father was burning grass when fire accidentally spread to the Respondent’s father’s farm and the father was made to pay for the burnt kola-nut farm which forms part of the land now in dispute. He admitted further that he is a Futani man and would not know whether land was held by community or by individual families.
Under re-examination by learned counsel for the Appellants, he explained that the Adinimodo he mentioned or referred to under cross-examination. is the Adinimodo now in dispute and that the farm land he shared with Jimoh Olabode is the same as the disputed land.
Momonu Akanbi the DW2 who resided at Budo Gbada, Ilemona; deposed in his Statement on Oath made on the 28th August, 2008 as follows:
“I, MOMONU AKANBI, Male, Muslim, Farmer, Nigerian citizen of Gbada village, Oyun Local Government Area of Kwara State hereby make oath and state as follows:
1. That I am quite conversant with the facts of this case.
2. That I am the incumbent Mogaji (head) of Gbada village.
3. That the successive Mogaji in Gbada were appointed by the Elemona of Ilemona.
4. That I know as a fact that the 1st Defendant is the customary owner of the entire area of land at Gbada, Ago Ondo and Gbedo Gbedo Villages.
5. That I manage and superintend the 1st Defendant’s said land at Gbada, Ago Ondo and Gbedo Gbedo Villages
6. That I collect tributes in the nature of yam tubers from the tenants/occupiers of the 1st Defendant’s land for appropriate delivery to the Defendant.
7. That I know as a fact that the claimant has no land whatsoever at Gbada, Ago Ondo and Gbedo Gbedo.
8. That my community pays our development taxes into the coffers of Oyun Local Government Authority through the 1st Defendant.
9. That I swear to this in good faith.”
Under cross examination on the 28th day of July, 2009 after adopting his said statement, he stated thus: that he is a farmer and Mogaji of Gbada village aged 60 and to his knowledge two Onilemonas had reigned before the current one. He would be 9 years as the Mogaji of Gbada in August, 2009 and the Onilemona was installed about 15 years before the action in court. According to him, he is the seventh Magaji of Gbada Village and the 1st Magaji of Gbada was Apara, although he would not know the name of king of Ilemona that appointed the 1st Magaji of Gbada. On further cross-examination he admitted that some years back there was a dispute between him and the Respondent over the cuttings of trees on the disputed land which prompted police to arrest him that the dispute was settled by Onilemona but he did not pay any fine of N3000.00 (Three Thousand Naira) as alleged by the learned counsel for the Respondent.
When further asked whether he knew Aderibigbe, Oloyede, Sule Opatola, Ramanu, Aliyu, Alhaji Bello Ajileye, Yusuf Oyeyemi, Lawani Dediran and Jimoh Olabode he answered that he only knew Yusuf Oyeyemi out of all the names mentioned and he was the father of the Respondent although he knew nothing else about him. From further cross-examination whether there is nobody living in Ago Ondo now he replied in the affirmative adding that it is only his farm that is there now and as for Gbedo Gbedo Town there is nobody in the village now. On being asked to mention any of the family heads who paid tributes to Onilemona he stated that he only knew of the Respondent’s father whose name is Yusuf who died ten years before the case but who paid tribute to present Onilemona. On being asked again whether the father of the Respondent was the head of Oyaninsunwa family and who was the head as at when the action was taken; the witness answered that he would not know because the family of the Respondent is in Offa and he does not go there; so would he also not know who succeeded the said Respondent’s father nor would he know Aliyu Modupe Foluwa; Shittu Arikewuyo; Alhaji Lawani; Jimoh Asunmo Kolawole; Jimoh Iyanda.
As for the 2nd Defendant DW3 Saka Ajani Oyetade, his evidence as contained in his Statement On Oath is as follows:
“I, SAKA AJANI OYETADE Male, Muslim, Farmer, Nigerian citizen of Adinimodo village via Ilemona, Oyun Local Government Area of Kwara State hereby make oath and state as follows:
1. That I am the 2nd Defendant in this case and I am familiar with the facts of this case herein.
2. That I know the claimant and the 1st Defendant in this case.
3. That I know as a matter of fact that the land in dispute situates along Irra Road Adinimodo via Ilemona in Oyun Local Government Area of Kwara State.
4. That I know as a matter of fact that successive Mogaji of Adinimodo were appointed by the Elemona of Ilemona in office.
5. That the 1st Defendant as the customary title owner of Adinimodo land appointed me as the 6th Mogaji of Adinimodo.
6. That I know as of fact that I superintend and manage the 1st Defendant’s land at Adinimodo village Gaa Sidiku Adinimodo Gaa Oko-Arugbo Adinimodo and Gaa Aburo Sidiku Adinimodo.
7. That I collect tributes from the customary tenants of the 1st Defendant on the lands for appropriate delivery to the 1st Defendant.
8. That I know as a matter of fact that the disputed land forms part of the 1st Defendant’s land at Adinimodo.
9. That the Claimant has since stopped paying tributes to the 1st Defendant for the use of the land.
10. That I know as a matter of fact that the disputed land is not customarily known as Oyaninsunwa land.
11. That my community pays development taxes into the coffers of Oyun Local Government Authority through the 1st Defendant.
12. That I swear to this in good faith.”
On the 28th day of July, 2009 he also adopted his said Statement and when cross-examined by the learned counsel to the Respondent, he replied that he was 50 years old, a farmer, not educated formally and his Statement on Oath was read to him, by a lawyer in the presence of the High Court Registrar at the High Court premises and the person who read it to him signed as Commissioner for Oath and he signed as deponent. He stated further that he had known the Claimant for about 30 years and since childhood as playmate adding that the current Elemona was crowned in 1991 and that 20 Elemonas reigned before him. Under further cross-examination he stated that he hails from Adinimodo and lived there, adding that the Respondent never lived there but was farming at Adinimodo and would go home after farming to Offa.
When further questioned as to who was the first Mogaji of Adinimodo, he mentioned Oyetade but would not know the Elemona that appointed him. He insisted that it was the duty of his predecessors as Mogaji to collect tributes for the Onilemona and that Abdulsalami and Suberu collected tributes from the father of the Claimant named Yusuf Amuda and Bello. On the question as to who was the family head of the Respondent as at when the action was instituted, he replied that since he does not live with the Claimant he would not know the name of the family head and that tributes are normally paid by the people farming on the land and not the family heads.
Asked again whether Gaa Sikiru Adinomodo, Gaa Oko-Arugbo Adinimodo and Gaa Aburo Sikiru Adinimodo are all the same, he replied that they are different places. On the question whether he knew Aliyu Modupe Foluwa, Shittu Arikewuyo, Alhaji Lawani, Jimoh Asunmo Kolawole and Jimoh Ayanda, he replied that he knew only Alhaji Lawani, Jimoh Asunmo Kolawole and Jimoh Ayanda who are family members of the Respondent who did not live in the disputed land and only came to farm thereat.
The learned trial Judge after evaluation of the evidence rightly in my view stated the law as to the general onus of proof which lay on the claimant to establish his title to the disputed land and the fact that he could do that in one or more of the five ways earlier enumerated while reflecting on the dictum of Fatayi-Williams in Idundun v. Okunmagba (supra) which was adopted in the case of Baba Iya v. Sikeli (2006) 3 NWLR (Pt 968) 508 at 527-528 para. F – A and Section 137(1) of the Evidence Act cited by the learned trial Judge. See now sections 131(1) and (2), 132, 133(1) to (3) and 134 of the Evidence Act, 2011. See further Kodilinye v. Odu (supra); Archibong v. Ita (1953) 14 WACA 520; Okulate v. Awosanya (2000) 2 NWLR (Pt.646) 530 and Dim v. Enemuo (supra) at page 386 para. B – D.
After reproducing the paragraphs of the Respondent’s Statement of Claim where he pleaded his root of title and the evidence elicited in support as against the averments in the Joint statement of Defence of the Appellants and their evidence in proof of the fact that the Respondent and his predecessors-in-title were customary tenants; the learned trial Judge at pages 203 to 204 of the Records (pages 24 to 25 of the Judgment) came to the following findings:
“In a bid to show that the Claimant family is the customary tenant of the 1st Defendant, the Defendant in paragraph 8 of their Joint Statement of Defence averred that the father of the Claimant took grant of the disputed land for farming purposes from late Oba Adewoye the then Elemona of Ilemona. This averment was however contradicted by the 1st Defendant when he said in paragraph 7 of his Statement on Oath that it was the forefather of the Claimant who took grant of the disputed land from late Oba Oduwoye.
Under cross examination, the 1st Defendant contrary to his written Statement on Oath said it was the father of the Claimant who took a grant of the land from Oba Oduwoye. For being inconsistent and contradictory, I find the evidence of the Defendant about how the Claimant came about the disputed land to be most unreliable.”
I must state without any hesitation and I so reiterate that the learned Acting Chief Judge did not properly evaluate or appraise the totality of the case of the Appellants, for if he did, he could not have come to the conclusion that the evidence of the Appellants on how they came to the land was unreliable. In paragraph 8 of the Joint Statement of Defence and counter-claim, the Appellants pleaded and deposed on oath thus:
8. The Defendants state that the Claimant’s father went to meet the then reigning Elemona of Ilemona, Late Oba Oduwoye, to beg for permission to use part of the disputed land for farming purposes only;” and in paragraph 7 of the 1st Appellant’s Statement on Oath he stated thus:
7. That I know as a matter of fact that the Claimant forefather came to meet the then Late Elemona, Oba Oduwoye to beg for permission to use part of the Elemona land at Adinimodo along Irra Road for farming purposes only.”
Earlier on the Appellants had pleaded as follows:
3. The 1st Defendant is the incumbent Elemona of Ilemona while the 2nd Defendant is the incumbent Mogaji (Head) of Adinimodo Village via Ilemona in Oyun Local Government Area of Kwara State.
4. The Defendants aver that Adinimodo village forms part of the 1st Defendant’s area of land in Oyun Local Government Area of Kwara State, being overseen and managed by the 2nd Defendant for the 1st Defendant.
5. The Defendants aver that all successive Mogajis of Adinimodo, to wit: Oyetade, Sanni Adebayo, Abdulsalami, Subairu and the 2nd Defendant, who is the 6th Mogaji were appointed by the Elemona of Ilemona in Office.
6. The Defendants further state that the incumbent Mogaji of Adinimodo collects tributes (Isakole) from the occupants and users of the 1st Defendant’s Land in Adinimodo for appropriate delivery to the Elemona of Ilemona in office.
7. The Defendant avers that the Claimant’s father, Yusuf Amuda during his lifetime gave Isakole (tributes) in the nature of yam tubers to the 2nd Defendant’s father, Salami, who was the 4th Mogaji of Adinimodo, for appropriate delivery to the then reigning Elemona of Ilemona as the customary landlord of the land in dispute for the use of the Land.
9. The Defendants state that the Claimant’s family only used the disputed land for agricultural use only, while the family social activities were restricted to their native town, Offa.
10. The Defendants state that the disputed land situate about 7 kilometres from Offa in Offa Local Government Area of Kwara State.
11. The Defendants state, that the adjacent lands to the land in dispute, to wit: Gaa Sidiku Adlnimodo, Gaa Oko Arugbo, Adinimodo and Gaa Aburo Sidiku Adinimodo, belong to the 1st Defendant as the customary custodian of Ilemona land.
12. The 1st Defendant states that Settlers on his lands contribute and forward Isakole through the 2nd Defendant for the use of the land.
13. The Defendants further state that the adjacent land whereon the Diocese of Offa (Anglican Communion) and the Redeemed Christian Church of God have their church buildings at Adinimodo were conveyed to them by the 1st Defendants as the customary custodian and owner of the land. The Defendants plead and shall rely on Deeds of Conveyance dated 10th August, 2003 and Allocation of Land Agreements dated 20th June, 1999 and 20th July, 2002 at the hearing of this suit.
14. The Defendant state that the disputed land is not traditionally known nor described as Oyaninsunwa.
15(a). The 1st Defendant who is the 20th Elemona of Ilemona avers that his progenitor, Oba Arolu, who was the 1st Elemona of Ilemona and reigned between 1188 A.D. to 1255 A.D was the 1st Settler on Ilemona and which includes the land in dispute.
15(b). The 1st Defendant further states that successive Elemona of Ilemona have had dominion and control over Elemona land and this include the land in dispute.
16. The Defendants state that successive members of the claimant’s family members who farmed on the disputed land did so as customary tenants of the 1st Defendant and conduct their activities on the land within the frame of dictate of the 1st Defendant and paid Isakole to the reigning Elenona.
17. The Defendants state that the reigning Elemona appoints the Mogaji (head) of Gbada who is turn, oversees the activities on the 1st Defendant land at Ago Ondo and Gbedo Gbedo.
18. The 1st defendant states that he is the customary title owner of the land in Gbada, Ago-Ondo and Gbedo Gbedo and he shares boundary with the Onira land in the west.
19. The Defendants state that the Claimant stopped paying tribute to the 1st Defendant in year 2000 when the claimant stated that his family had long been on the disputed land and were accordingly justified to stop paying tribute (Isakole) to the 1st Defendant.
20. The 1st Defendant further avers that he protested the Claimant’s continuous use of the disputed land when the claimant by positive act/omission and utterances challenged the 1st Defendant over lordship of the disputed land by refusing to pay tribute (Isakole) to the 1st Defendant through the 2nd Defendant.
21. The Defendants aver before the filling of this suit, the claimant had filed suit No. UACO/CVF/28/2005 before the Upper Area Court, Omu-Aran sitting in Offa against the same Defendants and claiming the same reliefs as in the present suit.
22. The defendants hereby give notice that during the hearing of this suit, the Defendants shall be heard by way of preliminary objection that the present suit is an abuse of the earlier Suit No. UACO/CVF/25/2005 pending before the Upper Area Court, Omu-Aran.”
The learned trial Judge closed his eyes to the other pieces of evidence which overwhelmingly demonstrated or corroborated the case of the Appellants that they were the real owners of that land and that the purported Oyanisunwa land was within Adinimodo or adjacent thereto and formed part of the vast expanse of land which is under the Over Lordship of the Elemona and which the 2nd Defendant was the Mogaji and caretaker.
His Lordship also refused to see or take into consideration the answers to the cross-examination of the Respondent which all were to the effect that areas like Gbada, Ago-Ondo and Gbedogbedo and Gaa Sadiku, Gaa Aburo Sadiku and Gaa Oko Arugbo are under the suzerainty of the Elemona who appointed the 2nd Defendant as the Mogaji of Adinimodo to oversee and collect tributes from immigrant farmers or settlers like the Respondent and his family who come from a distance of between seven to ten kilometres to farm on the land. For the avoidance of doubt I refer to the answers to cross-examination of the Respondent.
“Ques: Ilemona is the headquarters of OYUN Local Government?
Ans: Yes.
Ques: Adinimodo Village is one of the villages in Oyun Local Government?
Ans: Yes.
Ques: Adinimodo is under Ilemona?
Ans: That is true,
Ques: The 2nd defendant is the Mogaji of Adinimodo?
Ans: Yes.
Ques: The 1st defendant appointed the 2nd defendant as the Mogaji of Adinimodo?
Ans: Yes.
Ques: No member of your family presently lives on the disputed land?
Ans: We were all born there but none of our family is living there now.
Ques: The land in dispute is adjacent to Adinimodo Village?
Ans: Yes.
Ques: There is a compound belonging to your family called Oyanisunwa in Offa?
Ans: Yes.
Ques: You are a native of Offa?
Ans: Yes.
Ques: All your activities like burial and naming ceremony are held at your family compound in Offa.
Ans: Yes.
Ques: Villages like Gbada, Ago-Ondo and Gbedogbedo are all different from Adinimodo village?
Ans: Yes.
Ques: Your father was Yusuf Amuda of blessed memory?
Ans: Yes.
Ques: The father of the 2nd defendant is Salami and that you knew him?
Ans” Yes.
Ques: The father of defendant, Salami was the Mogaji Adinimodo when he was alive?
Ans: Yes.
Ques: The distance between the disputed land and Offa is about ten kilometers?
Ans: Yes.
Q ues : Do you know Gaa Sadiku, Gaa Aburo Sadiku and Gaa Oko Arugbo which are adjacent to the disputed land. They are not far from the disputed land?
Ans: Yes I do and they are not far from the disputed land.
Ques: It is the 1st defendant who is the Elemona of Ilemona who has control over these Gaa’s.
Ans: Yes.
Ques: Gbada village is also not far from the disputed land?
Ans: Yes.
Ques: The present Mogaji of Gbada village was appointed by the 1st defendant?
Ans: Yes.
Ques: Where is Offa-Esun you mentioned in your written statement on oath?
Ans: Near the Naval College, Offa”.
Even more damaging to the case of the Respondent is the admission that Offa where he comes from and resides is between seven and ten kilometres away from the disputed land which is situated in Adinimodo in Oyun Local Government see per Tobi Salami v. Lawal (2008) 36 NSCQR 1047-1048 para. C-H; That the Respondent and his family were mere immigrant farmers is buttressed by the fact that they do not reside thereat, they do not bury their dead there and even admitted that all their social activities are restricted to their hometown Offa. They purported and traced their genealogy to Aderibigbe and a long line of successors-in-title one of whom was Yusuf Oyeyemi the father of the Respondent who was head of the Respondent’s family and in paragraphs 6 and 7 of his Statement of Claim and paragraph 7 and 8 of his Written Statement on Oath the Respondent’s father had purportedly farmed and lived there and collected tributes from the Gbada, Ago Ondo, Gbedo Gbedo settlers who farmed in Oyanisunwa land.
However in paragraph 3 of the Amended Reply to the Statement of Claim, the Respondent turned somersault and denied that the said Yusuf Oyeyemi alias Iyanda or Amuda who was identified by the Appellants as one of those who paid tributes or Isakole to the Elemona, ever lived in Oyanisunwa even when he became head of the family. The learned trial Judge did not appraise this conflicting evidence as material enough to discredit the case of the Respondent.
The learned Acting Chief Judge went on to recall the question and answer sessions between the Respondent’s counsel and Sadiq Yahaya and also Momonu Akanbi, the witnesses for the Appellants as to how the Respondent called policemen for burning his father’s Kolanut trees, the cutting of trees and how the dispute was settled by the Onilemona and came to the further finding inter alia:
“What is deducible from the answers of both DW1 and DW2 under cross-examination is that sometimes in the past both the Claimant and his father exercised some rights over the disputed land and successfully challenged encroachment and mischief by third parties to the knowledge of both DW1 and DW2 and the 1st Defendant.”
In respect of the above finding, I agree completely with the submission of the learned senior counsel for the Appellants that the mischief referred above only referred to the exercise of the Respondent’s right to possession of the crops or economic trees planted on the land which could not have ripen into ownership. In fact the parties demonstrated that the Elemona (Onilemona) was the over lord of the Respondent as well as the DW1 and DW2 and that explained why the matter was referred to the Elemona for settlement and the DW2 was made to pay the sum of N3,000.00 for the Kolanut trees he accidently destroyed by fire. I will not even bother myself with the submission by the learned senior counsel that the evidence of destruction and payment of fine upon which the finding of the learned trial Judge was predicated, was not pleaded but extracted under cross examination since parties are not expected to plead evidence but facts.
As for the further finding of the learned Acting Chief Judge that:
In the absence of any evidence that customary tenancy passes from father to son I am inclined to hold, and I hereby so hold that the evidence of DW1 that Claimant’s father exercised some rights over the disputed land some 20 years ago while his son, the Claimant also exercised such rights some years later over the same portion of land is more consistent with claim of ownership by the claimant than claim of customary tenancy by the Defendants. The traditional history of title given by the Claimant is detailed and unbroken from the founder, Aderibigbe to the present head of family called Jimoh Olabode. The Claimant gave evidence of how the disputed land acquired the name Oyanisunwa from the wife of Aderibigbe who was a renowned Oya worshipper. The traditional history of title given by the Defendants on the other hand is sparse and lacking in details. This is in addition to the fact that the evidence of the 1st Defendant on how the Claimant became the customary tenant of 1st Defendant is not only inconsistent but also contrary to the Statement of Defence. Again the evidence of DW1 and DW2 under cross examination is supportive of the claim of ownership by the Claimant.”
I must also state with the greatest respect that the learned trial Judge did not appreciate and indeed failed to apply the nuances and principles of customary tenancy which have long been established in a host of judicial pronouncements and by writers. For the above reason and avoidance of doubt it is only necessary to revisit this legal concept in order to throw more light on this case as the parties fought it in the lower Court. L.K. Agbosu for instance, in his essay captioned “Extinction of Customary Tenancy by the Land Use Act” (1978-1988) 3 N.W.LR. page 153 ; conceptualizes Customary tenancy as follows:
“….customary tenancy in Nigeria Land Law arises where a person who had the legal capacity to do so permits, grants or is deemed to have granted to another, usually a stranger who is not a member of the land holding group such as the family or community, the right of possession or use of land for a specified or an indefinite period of time with the intention that the use of the land shall revert to the grantor when the purpose for which the right is conferred has been fulfilled.
The main point of note here is that the duration of the tenant’s interest in land had been defined: it may be for a specified or an indefinite period of time.”
Professor Ben Nwabueze on his part defines the concept of customary tenancy as creating “the relationship of landlord and tenant between the parties to it”, and distinguishes it from a mere occupational licence which confers no interest in land, whereas a tenant under customary tenancy has definite rights in land which are enforceable against the world at large including the grantor and those claiming under him.
On the other hand, G. A. Wigwe, defines the concept thus “tenancy refers to possessing right over land; that is, the right to occupy land. “See G.A Wigwe “Igbo Land Ownership, Alienation and Utilization: Studies in Land as a Resource”, in igbo Jurisprudence: Law and Order in Traditional Igbo Society, Ahiajoku Lecture, 1986.
Professor Utuama even brings home vividly the point as far as the scenario created in this appeal is concerned when he conceived customary tenancy as being created “when a land-owning individual, family or community grants a right of occupation of land to another person or group of persons who are usually strangers or immigrants to live in or farm in return for which they acknowledge the title of their grantor by the payment of customary tribute.
It is a cardinal principle and incident of customary land law that a customary tenant’s interest in land goes on and on and on in perpetuity until the tenancy is forfeited. This point was succinctly stressed in the case of Silli v. Mosoka (1997) 1 NWLR (pt.479) 103, where the Court held that:
“It is settled law that the possessory right of a customary tenant goes on and on in perpetuity unless and until the tenancy is forfeited for misconduct on the part of the tenant”.
See generally B.O. Nwabueze, Nigerian Land Law Nwamife Publishers Ltd, Enugu, 1977 Ed. at page 246; A. A. Utuama Nigeria Law of Real Property Shaneson C. I Ltd. 1989, P.23; Lasisi v. Tubi & Anor (1974) 12 S.C 77; Abioye v Yakubu (1991) 5 N.W.L.R (pt. 190) 130 and Abidoye v. Alawode (1994) 6 NWLR (Pt. 349) P.242.
Thus, in Abioye v. Yakubu (supra); the Supreme Court held that a customary tenant is a tenant from year to year liable under customary law to pay rents or tribute to the landlord for the use of land. The above position of the apex Court suggests that the tenant’s interest in land cannot always be in perpetuity or only subject to forfeiture as a result of misbehaviour, since the tenancy can also be determined when the purpose for which the right is conferred has been accomplished, for instance, where land is granted for a farming season, and the crops have been harvested. The actual duration of a customary tenancy from the foregoing decision would seem to depend on the agreement reached between the grantors and the grantees.
In the same case Abioye v. Yakubu (supra), the Supreme Court commenting on the nature of holding under a customary tenancy posited as follows:
“The legal nature of a holding under customary tenant is that the holding of the customary tenant is not a gift or loan, nor is the land given for a definite term (which differentiates him from a lessee). Customary tenancy is a grant upon terms and conditions agreed with the owners and provided that he keeps to the conditions of the grant and payment of tribute, the customary tenant can enjoy possession of his holding from year to year in perpetuity. But no matter how long he is on the land, he does not and cannot acquire ownership. He is liable to incur forfeiture and lose his tenancy on breach of the terms and thus, customary tenancy is differentiated from the English concept of lease which can be invalidated for lack of certainty of term, as certainty of term is not essential for the creation of a customary tenancy. See further Aghenghen v. Wagboregbo (1974) 1 S.C. 1 at Pp. 8- 24; Oniah v. Onyiah (1989) NWLR (pt. 99), 514; Lasisi v. Tubi 71 S.C 71 at pp. 75-76; Akinloye v. Eyiyola (1968) NMLR 92; Isiba v. Hanson (1964) 1 All N.L.R 8.
As can be seen from the definitions given above of customary tenancy and the incidents thereof, one of the essential characteristics of this legal concept is the payment of rent or tribute usually in kind in order to ensure a relationship of landlord and tenant which tribute or token serves as the grantee’s acknowledgement of the grantor’s reversionary rights. See C.O. Olawoye, Title to Land in Nigeria, Evans Bros Ltd., 1974 at page 27.
Thus, contrary to the holding of the learned Ag. Chief Judge at page 205 lines 11-16 of his Judgment, writers and indeed our Courts had long recognized and established in fact and in law, that under custom, a tenant or grantee of land can enjoy the use of that land in perpetuity and even pass on his right of occupation of the land to his successors, provided he does not misbehave by either challenging the over lordship or the grantor by claiming ownership or refusing to pay tribute to the landlord, as in this case. Indeed as far back as 1941, Martindale, J, in Etim v. Eke (1941) 16 NLR 42 at 50 succinctly stated the position of the law: “that the grantee acquires a right of use which endures for an indefinite period of time and which is transmissible to his descendants.”
Commenting on the right of a customary tenant, Kutigi, JSC (as he then was) in the case of Akintola v. Oyelade (1993) 3 NWLR (pt.349) 382, posited inter alia:
“A customary tenant is entitled to possession and occupation of the land, subject-matter of the tenancy. The tenant’s right of user is, however, subject to the overlord’s right of reversion which is exercisable if and when the tenant denies the title of the overlord or misbehaves by failing to comply with the terms of the agreement and or if he abandons the land. The overlord, however, has no right to determine the tenancy or the tenant’s occupation of the land otherwise than as stated above. ”
Ayo Salami, JCA (as he then was) speaking in the same vein succinctly observed in Abidoye v. Alawode (1994) 6 NWLR (pt.349) 245; that: “A customary tenant is entitled, subject to good conduct, to tenure in perpetuity until his tenure is forfeited by order in an action brought for forfeiture”. See also C.O. Olawoye, “Title To Land In Nigeria”, at p.44.
The sum total of all the dicta of their Lordships and opinions of Legal pundits above enunciated is that a customary tenant is entitled to exclusives possession of the land granted to him until the tenancy has been lawfully determined. Even the grantor of the land has no right to enter upon the land without the permission of the tenant unless the tenancy so permits, or to maintain an action to restrain the tenant from trespassing on land of which he is in possession as customary tenant. Rather, any unlawful entry by the landlord is actionable in trespass at the instance of the tenant.
See further Aghenghen v. Waghoreghor (1974) 1 S.C.1; where the Supreme Court also emphasized the perpetual nature of possession of land held under customary tenancy by holding that customary tenants:
“… are not gifted the land neither are they “borrowed” or “lessees”, they are grantees of land under customary tenure, and hold as such, a determinable interest in the land which may be enjoyed in perpetuity subject to good behavior….such interest has in practice now been regarded by the courts as practically indefeasible once permanent building or other forms of improvements like extensive commercial and/or occupation have been established therein by the grantee. They enjoy something akin to emphyteusis a perpetual right in the land of another.”
See Emegwara v. Nwaimo (1953) 14 WACA 347; see also B.O. Nwabueze, Nigerian Land Law at P.253; Akinkuwo v. Fajimoju (1965) NMLR 349:
From the foregoing analysis particularly the dictum of Martindale, J. in Etim v. Eke (supra); which has been supported by Kutigi J.S.C. and Salami JCA (as they were then) in Akintola v. Oyelade (supra); Abidoye v. Alawode (supra) as well as other judicial authorities and s “that the grantee acquires a right of use which enures for an indefinite period of time and which is transmissible to his descendants”, the finding of his Lordship, the Acting Chief Judge at page 205 of the Records that “In the absence of any evidence that customary tenancy passes from father to son I am inclined to hold, and I hereby so hold that the evidence of DW1 that Claimant’s father exercised some rights over the disputed land some 20 years ago while his son, the Claimant also exercised such rights some years later over the same portion of land is more consistent with claim of ownership by the claimant than claim of customary tenancy by the Defendants”; is not only perverse but contrary to established or settled legal principles of customary tenancy in our jurisprudence.
The Respondents as customary tenants had a right to protect their crops or any trees planted on the land and can even sue the landlord in trespass not to talk of DW1 and DW2 who were tenant and the caretaker on the land respectively. That decision of his Lordship can therefore not stand in the face of the overwhelming evidence that the land which the Respondent purportedly called Oyaninsunwa and claimed title to, is part and parcel of Adinimodo land of which his forefathers were in possession as customary tenants.
From the evidence of the head of the Fulanis in Adini and a fellow tenant Alhaji Sadiq Yahaya who testified that Jimoh Olabode the current head of the Respondent’s family who had been working together with the witness on Adinimodo land and in fact was used to contributing yam tubers together during festivals to the Mogaji Adinimodo; coupled with the admission of the over lordship of the Onilemona over Adinimodo and all the adjoining lands, ample evidence abound to warrant the learned trial Judge to hold that the Appellants are the owners of the land notwithstanding the clever recitation of the pedigree nay genealogical chronology of the Claimant/Respondent’s root of title from Aderibigbe to the Respondent and other members of his family.
It can therefore be concluded that the Respondent and family were basking in the euphoria of long possession and occupation of Appellant’s land almost in perpetuity and like the proverbial little bird (Nza) in Achebe’s famous novel, “Things Fall Apart”, became so swollen-headed to the extent of refusing to pay tributes to the overlord and now claim ownership of the land. By this action, the full wrath of the incidents of customary tenancy ought to be visited on them for engaging in as Agbosu would put it, ” the most serious misconduct which is rarely over looked (that) “is the denial of the landlord’s title,”.
Need we remind the learned trial Ag. Chief Judge that as customary tenants, the Respondents were obligated to be of utmost good behavior which connotes some fundamental duties that he must observe at the pain or peril of sanction? These fundamental duties or obligations had been held to include:
a. Obligation not to alienate without grantor’s consent;
b. Obligation not deny the grantor’s title;
c. Obligation not to use the land for a different purpose;
d. Obligation to pay customary tribute or rent. See per Obaseki, JSC in Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 at 12; Onisiwo v. Fagbenro (1954) 21 N.L.R. 3 at 6; Ogunmola v. Eiyekole (1990) 4 NWLR (Pt.146) 632 at 646 (S.C.); Alege v. Ogundipe (1957) W.R.N.L.R. 178; Akinrilowo v. Anwo (1959) W.R.N.L.R. 56; Abidoye v. Alawode (supra) and Eyamba v. Holmes (1924) 5 N.L.R. 85 at 87.
In this case the Respondent has not only denied the grantor’s title by first filing suit No. UACO/CVF/28/2005 before the Upper Area Court Omu-Aran sitting in Offa against the 1st Appellant for declaration of title over a portion of land which ordinarily he is a customary tenant but went further to institute this action again in the High Court claiming the same reliefs as in the Upper Area Court. For breaching this primary and most serious obligation on the part of a tenant, the consequence of this act of misbehaviour is, as was rightly held by the Supreme Court in Ogunmola v. Eiyekole (1990) 4 NWLR (Pt.146) 632 at 646; his forfeiture of and/or eviction from the land.
Apart from the above, the Respondent has also without the consent of his over lord (the 1st Appellant), alienated parts of the land by Exhibit CL1 which the 1st Appellant has challenged as being fraudulent and further by the evidence of PW1 Alhaji Tajudeen Adesina that the land belongs to the Respondent and Family who are his Landlord; should also attract the sanction of forfeiture. See Aghenghen v. Waghoreghor (supra); Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 at 12; where Obaseki, JSC; posited rightly in my humble view, that ” Forfeiture is available whenever a tenant alienates without the landlord’s consent the whole or part of the parcel of land let out to him by the landlord under customary law.”
From the facts as pleaded and supported by the evidence elicited by the Respondents and his witnesses as well as the Appellants, there is no doubt that the crux of this matter is the refusal of the Respondents to pay tributes through DW2 and DW3 who are the Mogajis appointed by the 1st Appellant to oversee Adinimodo and the adjoining Gaas/land in dispute. The Respondents now claims ownership of the said land and even purport to exact tributes of hordes of yam tubers from those farming on his purported Oyanisunwa land. In fact since 2002 the Respondents have refused to pay tributes to their landlord hence the exercise of the Appellants rights’ to their reversionary interest by restraining the Respondent and his agents or cohorts from further use of the land.
Thus, as have been held in Lasisi v. Tubi & Anor (1974) 12 SC 71; Eyamba v. Holmes (1924) 5 NLR 85 at 87 and Abidoye v. Alawode (1994) 6 NWLR (Pt.349) 245; the established rule under customary law is that the tenant is under obligation to pay tributes or rent to his overlord and default of payment renders him liable to an action in forfeiture or ejection; as there is no law statutory or otherwise authorising a tenant to defy his landlord by defaulting payment of rent so long as the tenancy subsists.
Finally, let the point be stressed that no matter how long the Respondent and his family members have occupied the land of the Appellants they cannot acquire ownership thereof as they are liabte to incur the forfeiture of their tenancy upon breaching the terms and conditions of the tenancy more particularly as they have alienated part of the land stealthily and fraudulently and even gone ahead to challenge the title lover lordship of their grantor. See Akinloye v. Eyilola (1968) NMLR 92; per Bello C.J.N in Abioye v. Yakubu (1991) 5 NWLR (pt. 190) 130; Onyiah v. Onyiah (1989) 1 NWLR (Pt.99) 514; Lasisi v. Tubi (supra) at 75 – 76; Akintola v. Oyelade (1993) 3 NWLR (Pt 282) 379 and Abidoye v. Alawode (1994) 6 NWLR 247.
On the question whether there was sufficient evidence before the court to justify giving judgment to the Claimant and dismissing the Appellants’ Counter Claim as formulated in Issue Number 3; it has to be recalled that parties relied first on traditional histories which to my mind were conflicting. There is no doubt that it was the primary duty or function of the learned trial Judge as the Court of first instance who had the advantage of watching the demeanour and hearing the witnesses to evaluate the totality of the evidence before him and ascribe probative value to the testimonies of the witnesses for each of the parties. See Onisaodu v. Elewuju (supra) at 527, A-B; 258 A-F 532 D. also in Essien v. Essien (2009) 9 NWLR (pt. 1146) 306 at 334 C-G and Ameyo v. Oyewole (supra) at 10 A-B. There is also no doubt as was rightly submitted by learned counsel for the Respondents while relying on the above authorities, that this court as an appellate Court ought not to interfere with the findings of facts which emanated from such evaluation exercise except it can be shown from the record that there are extenuating circumstances as enumerated by the learned counsel for the Respondent in paragraph 4.0.5 of the Respondent’s brief.
In the face of such conflicting traditional histories and although it is now authoritatively settled that the trial court can attach weight to such evidence based on the demeanour of the witnesses by applying his experience and wisdom; the courts have also held authoritatively based on the decision of the Privy Council in Kojo 11 v. Bonsie (1957) 1 WLR 12-33 per Lord Denning on the nature of evidence of traditional history, that:
“In this regard it must be recognised that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever, Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable”. See Agedegudu v. Ajenifuja (1963) 1 ALL NLR 109; Ayomano v. Ginuwa (1943) 9 WACA 85; Mora v. Nwalusi (1962) 1 ALL NLR 681 (P.C) and Amata v. Modekwe (1954) 12 WACA 581.
Going by the above authorities the learned trial Judge ought not to have based his decision on traditional evidence purely on the demeanour of the witnesses but should have sought for evidence of recent acts of ownership within living memory and applied the rule in Ekpo v. Ita (1932) 11 N.L.R 68 (F.C) where it was held thus:
“In a claim for a decree of declaration of title, the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiff were exclusive owners.
Although, the above dictum is normally misunderstood to mean that evidence of ownership is of utmost necessity in all cases of declaration of title, the West African Court of Appeal had explained in Abdulai v. Manue (1945) 10 WACA 172 at 174; that the onus is only necessary where other evidence of title is inconclusive or lacking. Thus, it is the practice of the Courts in such circumstance for the evidence of traditional history to be coupled with evidence of living people and acts of ownership within their knowledge. In Macjaja v. Ibok (1947) 12 WACA 148; where the parties claimed to be in possession of a certain piece of land, the Plaintiffs were granted a declaration of title on the basis of evidence of the existence on the land of a place of sacrifice sacred to the Plaintiff and of the receipt by them of tributes from previous occupiers. It has also been held that the acts of ownership required for this purposes entail possession for a long time, a grant of teases and tenancies and receipt of rent or tributes arising from such grants.
In the case at hand, the Claimant/Respondent who purported that Oyanisunwa Land was named after the wife of Aderibigbe their progenitor who was a renowned Oya worshipper and that his predecessors-in-title settled on the land; neither showed from his evidence the location of the shrine of Oya or the relics thereof nor even relics of their purported settlements. In any case, the Respondent and his witnesses had admitted under cross-examination that they did not carry out their naming ceremonies or burial of their deceased siblings on the land and in fact confined all their social activities to Oyanisunwa Compound in Offa, ten kilometres away from the land in dispute. These pieces of evidence go a long way to buttressing the claim of the Appellants that the Respondent and his family members were actually customary tenants/migrant farmers who were given the land for farming purposes only and in fact always came from Offa to work and returned back to their said home.
There is also evidence that if at all the Respondent and his family settled on the land they had since abandoned same and the Appellants are entitled to exercise their reversionary right as owners/overlords. See Baillie v. Offiong (1947) WACA 177; Oloto v. John (1923) 5 NLR 29; and Ezeilo v. Obi (1942) 8 WACA 127.
It would be recalled that apart from traditional history, parties tendered documentary evidence which were admitted as Exhibits to prove that the land in dispute belongs to each of them. For the Respondent the Agreement for lease of a “parcel of land situate lying and being at Budo Gbada Area near Ilemona Town which land is bounded on one side by the Ologbigbi stream and on another side by the road to Budo-Gbada Village and on the other side by Mr. Oguntunde’s Farm”, was marked Exhibit CL1. The Agreement was said to have been entered into on 1st of October, 1987 between the Respondent’s family and Rabelat (Nig. Ltd) an incorporated company with head office at Offa. However, it has to be noted that whereas the claimant purported that his land is called Oyaninsunwa what he purportedly leased out to Rabelat Nig. Ltd. was land situate at Budo Gbada and accordingly as rightly submitted by the learned senior counsel for the Appellants, that Agreement is therefore not relevant to this case.
In any case, apart from the fact that the assertion by the 1st Appellant under cross examination that Eesa Simeon Opatola had no right and would not have signed that Agreement on their Community’s behalf, the witness also specifically stated that he knew nothing about such Agreement and that Exhibit CL1 was fraudulently procured. Nothing was done to challenge that assertion of the fraudulent nature of that Agreement and the Respondent are deemed to have admitted that assertion. Again, under cross examination Budo Gbada from where his family leased out the land was also not far from the disputed land and the present Mogaji of Gbada Village, was admitted to have been appointed by the 1st Defendant the Elemona of Ilemona.
It is therefore clear that if at all the Respondent leased out any land in Gbada area he has challenged the over lordship of the 1st Appellant and apart from being subject to sanction of forfeiture, has conveyed no title to Rabelat Nig Ltd. since the radical title in that land resides on the Appellants. See Salami v. Oke (supra) and Onisiwo v. Fagbenro (1954) 21 NLR 3 at 5.
The Appellants on the other hand in line with the authorities cited earlier on acts of ownership numerous and positive enough to warrant the inference that they are the owners of land in dispute tendered Exhibit D1 a Conveyance of part of the land in dispute as recent as 10th August, 2003 to the Offa Anglican Communion without being challenged by the Respondents. Exhibit D2 is also an Agreement for land allocation between the 1st Appellant and Engr. Latifu A. Adegboye of Obada Boye, Offa which land is situated along Budo Gbada Adinimodo Ilemona. The Agreement is dated 20th June, 1999. Also, the Appellant tendered Exhibits D3 and D4 which are Kwara State of Nigeria Local Government Tax Receipts for the 1992 and 1993 Development Taxes collected on behalf of Oyun Local Government for Adihimodo all which go to show that the Appellants are the owners of the land in dispute.
Closely connected with the above is the submission of the Learned Senior Counsel for Appellants who aptly cited Section 46 (now 35) of the Evidence Act, 2011 which provides that:
“Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land situated or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land”.
In this case the Appellants had pleaded copiously and led evidence in proof of the facts that the adjacent lands to the land in dispute, to wit: Gaa Sidiku Adinimodo, Gaa Oko Arugbo Adinimodo and Gaa Aburo Sidiku Adinimodo; belong to the 1st Defendant as the customary custodian of Ilemona land and that Settlers on his lands contribute and forward Isakole through the 2nd Defendant for the use of the land. They further proved that the adjacent land where on the Diocese of Offa (Anglican Communion) and the Redeemed Christian Church of God have their church buildings at Adinimodo were conveyed to the religious organizations by the 1st Defendant/Appellant as the customary custodian and owner of the land. They had tendered the Deeds of conveyance dated 10th August, 2003 and Allocation of Land Agreements dated 20th June, 1999 and 20th July, 2002 at the hearing of this suit and further proved that the disputed land is neither traditionally known nor described as Oyanisunwa.
Even from the answers to cross examination by the Respondent and his witness, it is clear that the necessary inference can be drawn from the acts of ownership of the adjacent settlement like Gaa-Sadiku, Gaa-Aburo, Gbedu-Gbedu, Gaa Oko-Arugbo and Gbada that the Appellants are the owners of the disputed land. See Idundun v. Okumagba (1976) 1 NMLR 200 (1976) NSCC (Vol. 10) 445 at 454 – 455; Johnson v. Lawanson (1971) 1 ALL NLR 56; Ekpo v. Ita 11 NLR 68); Da Costa v. Ikomi (1968) 1 ALL NLR 394 at 398).
As I said earlier, the law is now trite that it is the primary function of the trial court to evaluate or appraise the evidence of parties and their witnesses as well as ascribe probative value thereto and where the exercise is properly done this court as an appellate court has no business to substitute its views for that of the court of trial which had the advantage of seeing or hearing the witnesses except in the evaluation exercise the following circumstances resulted as was rightly submitted by learned counsel for the Respondent:
1. That the trial court did not make proper use of the opportunity of seeing and hearing of witnesses at the trial;
2. That the trial Court drew erroneous conclusion from accepted facts or mis-appreciated the evidence adduced before it; or
3. That the findings of facts are perverse in the sense that they do not flow from the evidence accepted by the trial Court. See Fasakin v. Siwoku (2009) 16 NWLR (Pt.1167) 305 at 320-321 D-F.
In the case at hand, I had earlier held that the findings of the court below in respect of the title to the land and customary tenancy were perverse in that they did not flow from the totality of the evidence elicited by the parties and indeed it may be added that His Lordship drew erroneous conclusions from proved and accepted facts and accordingly this court is in as good a position as the court of first instance to re-evaluate the evidence and interfere with the findings of facts particularly as the evidence elicited were mostly documentary in nature; as I have done in this appeal. See Nnorodim v. Ezeani (2001) 5 NSQR 510 at 515, per Iguh, JSC and Adebisi Adeye & Ors v. Chief Agbatogun Adesanya (2001) 5 NSQR 522 at 531; per Wali, JSC.
It is for the above reasons that I resolve Issues 2 and 3 again in favour of Appellants. On the whole, this appeal is meritorious and hereby succeeds. The Judgment of the High Court of Kwara State, per S. D. Kawu, Ag. Chief Judge (as he then was), delivered on the 8th day of June, 2010, is hereby set aside. In its stead, I dismiss the Claimant/ Respondent’s claim in the lower court for declaration of customary right of occupancy and title to his purported Oyaninsunwa Land. I also refuse to grant any order of perpetual injunction restraining the Defendants their privies, servants or anybody whatsoever claiming through the Defendants from disturbing the claimant on the so-called Oyaninsunwa land.
On the other hand, the Counter-Claim of the Defendants succeeds in its entirety and in making any consequential order or orders I am minded and guided by the time-honoured principle enunciated in cases like Uwani v. Akom (1928) NLR 19; in Mgbelekeke Family v. Iyaji suit No. SC/4/1931 (unreported but cited in Comparative Analysis of Nigerian Customary Land Law University of Calabar Press Calabar Nigeria First Edition 1999 by Ogba U. Ndukwe Esq.); Abioye v. Yakubu (supra); Omera v. Numa (1929) NLR 46; Onyiah v. Onyiah (supra); Are v. Ipaye (1986) 3 NWLR (Pt. 29) 416 and Owoade v. Omitola (1988) NSCC 802; that where a tenant as in this case is liable in forfeiture the order of forfeiture would the misbehaviour and with the support of his family has stubbornly denied the Appellants’ title and refused to come to terms with the overlords and therefore cannot benefit from the equitable discretion of this Court and in consequence, an order of forfeiture shall be made against him no matter whatever considerable hardship he would suffer in the circumstances. See Oniah v. Onyiah (supra).
Accordingly, it is hereby declared and ordered as follows:
1. That by his acts and actions, the Claimant/Respondent rights as has forfeited his rights as customary tenant of the 1st Defendant/Appellant and dispossessed and himself of every parcel of land within Adminimodo Area of Ilemona occupied by him for farming purpose.
2. That the claimant/Respondent shall forthwith forfeit all the parcels or pieces of land held by him (the Claimant) as customary tenant within Adinimodo Area of Ilemona in Oyun Local Government Area of Kwara State used for farming purposes and any other purpose whatsoever.
3. That an order of perpetual injunction is hereby made/granted restraining the Claimant/Respondent either by himself, agents, servants, children, agents, descendants or any person claiming through him from further occupying or continuing in occupation or holding on to any part of the piece or parcel of land which the Claimant/Respondent holds or occupies for farming as a tenant within Adinimodo Area of Ilemona land or asserting or exercising any act of ownership or possession thereon.
Parties shall bear their respective costs.
ITA GEORGE MBABA, J.C.A.: I have had the privilege of seeing and reading the draft of the judgment just delivered by my learned brother I.I. Agube JCA. I agree with his reasoning and conclusions, which are quite sound on the delicate relationship between a customary tenant and his overlord.
A customary tenant is entitled to enjoy all the protection and benefits inherent in the customary tenancy, which includes peaceable occupation and protection by the over lord as long as the customary tenant keeps the terms of the relationship, which usually consists of payment of (sometimes ridiculous) tribute, acknowledgement and respect of the over lord. And the relationship can last, ad infinitum, as long as those terms and conditions are observed by the tenant. The tenant (or successors of the original tenant) would be acting in gross and costly error to assume his long possession to have translated or converted into right of ownership. Any such attempt would amount to a challenge of the title of the over lord and denial of the over lord’s right of reversion.
Of course, the law would step in to ward off such challenge by forfeiting the tenant’s right of possession. The authorities on this are replete and the case of Akintola vs. Oyelade (1993) 3 NWLR (Pt.349) 382, already cited in this appeal, is very instructive on this:
“A customary tenant is entitled to possession and occupation of the land, subject matter of the tenancy. The tenant’s right of user is, however, subject to the over lord’s right of reversion which is exercisable if and when the tenant denies the title of the over lord or misbehaves by failing to comply with the terms of the agreement and/or if he abandons the land. The overlord, however, has no right to determine the tenancy or the tenant’s occupation of the land otherwise than stated above.”
In the case of Bolus Sanya & Anor vs Dennis s. Saauman & Ors, an unreported decision of this court, Yola Division, in CA/YL/136/2007, delivered on 26/5/2011, where the grand children of a customary tenant later challenged the rights of the overlords (children of the Original Grantor) claiming ownerships of the land basing same on long possession, it was held:
“Of course, the evidence of long possession of land by the Appellants’ grandfather and his sons did not extinguish the proprietary rights of the Respondents in the land so long as the possessory rights of the Appellants’ grandfather were traceable to the benevolence of the Respondent’s father. And there was evidence that the said Appellants’ ancestor/grandfather later left the land See also the case of Otadare vs. Keji (2005) 7 NWLR (Pt.925) 571 held 3” Where Supreme Court, on whether a plaintiff who failed to prove the root of title pleaded can rely on long possession or acts of ownership, said:
“Where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn around to rely on acts of ownerships and possession to prove his title to the land, because once the foundation of his title, the traditional history has failed, there would be nothing on which to found acts of ownership. In such a case, the claimant’s claim for title to land ought to be dismissed…”
The Respondents’ traditional history in this case has failed, having been swallowed up by the more credible traditional history of the Appellants, which turned out to establish the Respondents as customary tenants of the Appellants.
For this and other more elaborate reasons, ably marshalled out by my learned brother in the lead judgment, I too allow the appeal and abide by the consequential orders in the lead judgment.
OBANDE OGBUINYA, J.C.A.: I have had an opportunity of reading, in advance the well-articulated leading judgment delivered by my learned brother, I. I. Agube, JCA, and I am in total agreement with his reasons and conclusions.
I must place on record, in addition to the impregnable reasons adduced by my Lord in the leading judgment, that the justifiable rejection of the respondent’s survey or site plan of the disputed land was a coup de grace on whatever would have been the outcome of his case in the lower court. It is trite law that a claimant, in the like of the respondent, is laden or saddled with the herculean responsibility of establishing the identity of the land in dispute in land proceedings. That arduous duty is discharged either through a survey plan or description of the disputed land, with the concomitant boundaries, with such precision that a surveyor using the evidence can plot the land without further assistance, See Odunze vs. Nwosu (2007) 13 NWLR (Pt.1050) 1; Orunengimo vs. Egebe (2007) 15 NWLR (Pt. 1058) 630; Aremu vs. Adetoro (2007) 16 NWLR (Pt.1060) 244; Okonkwo vs. Okonkwo (2010) 14 NWLR (Pt.1213) 228.
In the case in hand, with the legitimate rejection of the respondent’s survey plan, on account of being offensive to the sacred provision of section 3(b) of the Survey Law of Kwara State for want of authorship by a surveyor, the terse and lopsided pieces of evidence of the respondent on the identity of the land, which he described as expansive, fell short of the required standard of proof of the identity of the disputed land. In the eyes of the law, boundary dispute constitutes title dispute over land, see Tanko vs. Echendu (2010) 18 NWLR (Pt. 1224) 253. The respondent’s claims for declaration of title and injunction over the disputed land became stillborn the moment his attempt to put the survey plan in evidence fell through coupled with the paucity of evidence on the boundaries of the land. This is because those claims cannot be made over a piece of land that is indefinite. Having regard to the foregoing, I, too, resolve issue one in favour of the appellants.
For a good measure, the appellants’ alienations or dispositions of parts of the disputed land to people, without any corresponding legitimate transfer by the respondent particularly as his exhibit CL1 was rendered otiose for want of nexus, pointedly indicate that they are the owners of the said land, see Tanko v. Echendu (supra).
It is for these tangential reasons, coupled with more comprehensive ones advanced in the leading judgment, that, I, too, hold and allow the appeal for being meritorious. I abide by the orders made in the leading judgment.
Appearances
Chief P.A.O. Olorunishola (SAN),
Dolu Oyeyiola Esq.For Appellant
AND
L.F. Anga Esq.,
Mrs. Iwalola Bello Esq., and
Tosin Alawode Esq.For Respondent
