ODUTALA v. DADA & ORS (2020)

ODUTALA v. DADA & ORS

(2020)LCN/15385(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, September 15, 2020

CA/IB/367/2014

RATIO

TITLE TO LAND: CONSIDERATIONS OF THE COURT IN RESOLVING A CLAIM OF TITLE TO LAND WHICH IS BASED ON TRADITIONAL HISTORY

On where the contending parties in an action for claim of title to land based on traditional history, the role of the trial Court in resolving the claim is guided by some settled judicial decisions, this Court in OMOLONA & ANOR V. APASIN & ANOR (2019) LPELR-48869 held as follows and I quote:
“In the instant case, the Appellants chose to prove their title to the land by way of traditional history. Incidentally, the Respondents chose to base their defence on traditional history as well. It is the law that, for a party to succeed in a claim for declaration of title to land, such party must plead and lead credible evidence establishing the following facts:- (a) Relating to the founding of land in dispute; (b) The person or persons who founded the land and exercised original acts of possession; (c) The persons on whom the title in respect of the land was devolved since its first founding, without any break or gap in the claim of devolution to the present owners. See Piaro v. Tenalo & Ors. (1976) 12 S.C. p.31 at 41; Woluchem v. Gudi (1981) 1 NWLR (pt.4) p.572 at 628; Ezeokonkwo v. Okeke (2002) 11 NWLR (pt.777) p.1; Dike v. Okoloedo (1999) 19 NWLR (pt.623) p.359 at 63 and Emenyonu v. Ndoh (2000) 9 NWLR (pt.671) p.251. The above stated ingredients are the facts the trial Court will consider in order to determine whether the plaintiff has successfully proved his title to the land he claims through traditional history. In the appraisal and evaluation of the evidence led in the case, the trial Court should bear in mind that where both sides to the dispute claim ownership to the land based on traditional or ancestral history, it is the party that advances better evidence of traditional history or ownership that will be entitled to the judgment of the Court. See Osu v. Igiri (1988) 1 NWLR (pt.69) p.221. It therefore means that before arriving at a decision one way or the other, the trial Court has a bounden duty to evaluate the evidence led by both sides to the dispute. The fact that the burden of proof rests in the plaintiff does not discharge the trial judge from his duty to consider the evidence of both the plaintiff and defendant and ascribe probative value or weight to each of them. The burden of proof cast on the plaintiff only means that, the plaintiff should lead evidence which is more credible than that of the defendant. In other words, after weighing the evidence by the trial judge, the plaintiff should only succeed because the evidence led by him, tilts the balance of the imaginary scale in his favour. The plaintiff should therefore not succeed because the defence has offered weak evidence, though in considering the weight of evidence in favour of the plaintiff, the trial Court should take into account those weaknesses in the defence’s case which strengthens or tends to strengthen the plaintiff’s case. See Akinola & Anor v. Oluwo & Ors.(1962) All N.L.R. p.224 at 227 and Woluchem v. Gudi (1981) 5 S.C. p.291. What I have laboured to state is that, the trial Court has the primary duty to properly evaluate or appraise the evidence led by the claimant before reaching a conclusion one way or the other in respect of the claim… It is therefore the primary duty of the trial Court to make findings of fact and to ascribe probative value to such facts adduced before him. Indeed, that duty is preserved for the trial judge who had the advantage of watching and assessing the demeanour of the witnesses that testified before him. See Kimdey v. Military Governor; Gongola State (1988) NWLR (pt.77) p.445; Registered – Trustees of Apostolic Faith Mission v. James (1987) NWLR (pt.61) p.556; Teriba v. Adeyemo (2010) 13 NWLR (pt.1211) p.242; Layinka v. Makinde (2002) 10 NWLR (pt.775) p.358 and Ita v. Ekpenyong (2001) 1 NWLR (pt.695) p.587…”. PER TIJJANI ABUBAKAR, J.C.A.

TITLE TO LAND: ACTS TO BE PROVEN WHERE A PARTY RELIES ON TRADITIONAL HISTORY IN PROOF OF TITLE TO LAND

Indeed, the settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
a. Who founded the land;
b. How he founded the land; and
c. the particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) 4 NWLR (PT 651) 131; Makinde v Akinwale (2000) LPELR-1829(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44.

DISCRETION OF COURT: ADJOURNMENT: CONDITIONS TO BE SATISFIED FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME

The first point that must be made here is that adjournments of cases fixed for hearing are not obtainable as a matter of course but may be granted or refused at the discretion of the Court.
Secondly, for an applicant seeking an extension of time prescribed by rules of Court for taking certain procedural steps to succeed, the application must establish good, substantial or exceptional reasons or circumstances to explain satisfactorily the delay in filing of his process or taking the steps in issue and thus justify the grounds of the extension applied for. Whatever decision a Court arrives at in such circumstances must depend on the exercise of its discretionary jurisdiction, having regard to the general principle of law governing the exercise of discretionary powers of the Court and guided by the consideration of doing justice to all the parties to the dispute. See Long John & Ors Vs Blakk & Ors (1998) LPELR – 1791 (SC). PER MUHAMMED LAWAL SHUAIBU, J.C.A.

TITLE TO LAND: METHODS OF PROVING TITLE TO LAND

The law is well settled on fairly long number of judicial decisions that there are five methods of proving title to land; the methods are as set out below:
(a) by traditional evidence,
(b) by production of documents of title duly authenticated and executed,
(c) by acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership,
(d) by acts of long possession and enjoyment,
(e) by acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.
SEE:IDUNDUN VS OKUMAGBA (1976) 9/10 SC 27 and OWHONDA V. EKPECHI (2003) 17 NWLR (Pt. 849) 326. PER TIJJANI ABUBAKAR, J.C.A.

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

OBA ADEWUNMI ADENIJI ODUTALA (For Himself And On Behalf Of The Members Of Odutala Family) APPELANT(S)

And

CHIEF TAORIDI DADA (For Himself And On Behalf Of The Members Of AdogunAtele Family A.K.A Itele Family) 2. MR. SAIBU OLUGBODE 3. MR. AYUBA DADA (For Himself And On Behalf Of The Whole Atele People Otherwise Known As Alagbeji Descendants’ Family Of Itele Village In Ado Local Government Area Of Ogun State) RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ogun State in a consolidated suits Nos. HCT/7/89 and HCT/212/96 delivered by Honourable Justice O. A. Owafowokan on 8th October, 2013 wherein judgment was entered in favour of the plaintiffs in Suit No. HCT/7/90 while the counter claim of the two sets of defendants failed and were dismissed. In respect of Suit No. HCT/212/96, the plaintiffs’ claim failed in entirety but the counter-claim of the 1st and 2nd defendants succeeds in part.

The 1st respondent herein was the plaintiff in Suit No. HCT/7/89 and 1st defendant in HCT/212/96 suing and sued as representative of Adogun Atele/Itele Family, while the 2nd-3rd respondents in this appeal were 4th – 8th defendants in HCT/7/89 and claimants in HCT/212/96 (being sued and sued as representatives of the Ogungbemi Alagbeji defendants’ family. The original appellants were the 1st – 3rd defendants in suit No. HCT/7/89 and 3rd – 5th defendants in suit No. HCT/212/96.

By a 7th amended statement of claim dated 22nd February, 2007, the 1st respondent (as plaintiffs) claimed against both the appellant as 1st – 3rd defendants and the 2nd – 4th respondents (as 4th – 8th defendants) in suit No. HCT/7/89 as follows: –
(A) As against the 1st, 2nd and 3rd defendants: –
(1) A Declaration that the plaintiffs are the persons entitled to a customary/statutory Right of Occupancy in respect of the vast area of land in situate, lying and being at Aiyetoro Village, Itele in Ogun State of Nigeria which is more particularly described on plan No. 28/12/2001 drawn by T. O. Olorukunle (Registered surveyor).
(2) A Declaration that the 1st, 2nd and 3rd Defendants are customary tenants of the plaintiffs on the land in dispute.
(3) An Order for forfeiture of the customary Tenancy of the 1st, 2nd and 3rd Defendants or of whatever interest they have in the land in dispute on the ground that they have committed acts inconsistent with and in defiance of the plaintiffs’ title to the land in dispute.
(4) An Order for recovery of possession of the land in dispute from the 1st, 2nd and 3rd defendants by denying the title of the plaintiff to the land in dispute and leasing parts thereof and by various other forms of misconduct.
(5) A declaration that all sales, leases or purported sales or, any other forms of alienation made by the 1st, 2nd and 3rd defendants affecting the land in dispute are null and void.
(6) An Order of perpetual injunction restricting the 1st, 2nd and 3rd defendants or, agents from further selling or leasing the land in dispute or any portion thereof or from going on the said land for any purpose at all or from denying anything whatsoever on it.
(B) As against the 4th – 8th defendants:
The Plaintiffs-claim is for:
(1) N1,000.00 (One Million Naira) being damages for the trespass committed by the 4th – 8th defendants and/or his servants and agents when they in about 1980 unlawfully broke and entered on to all the piece or parcel of land (in possession of the plaintiffs) lying, situate and being at Aiyetoro Village, Itele in Ogun State of Nigeria which is more particularly described on plan No. PEG/06/2001/025 dated 28/12/2001 drawn by J. O. Olorukunle (registered Surveyor).
(2) An Order of perpetual injunction restraining the 4th – 8th Defendants and their servants from doing anything on the land in dispute at all. The plaintiffs are suing on behalf of themselves and of all other members of the Itele Family and the 1st, 2nd and 3rd defendants are defending and counter claiming in this case as representatives of the Odutale family while the 4th – 8th defendants (the joined defendants) are defending for themselves and on behalf of Itele Community.

The 1st, 2nd and 3rd defendants denied the plaintiffs’ claim and counter claimed thus: –
WHEREOF the 1st, 2nd and 3rd defendants as representatives of the Odutala family avers as follows: –
1. That they, as trustees of Odutala are entitled to the issuance of the statutory/customary right of occupying in respect of the area of land situate and being in Aiyetoro and described and delineated by the survey plan No. OGE/001/ABB/90, prepared by S. Akin Ogunbiyi, Esq, licensed surveyor on 20/9/90 and known as parcels A, B and C (measuring respectively 88.294 hectares, 2.511 hectares and 26.383 hectares).
2. A declaration that neither the claimants nor the 4th – 8th defendants have any title to the area claimed by the 1st to 3rd defendants.

3. N1,000,000.00 (One Million Naira) damages against the claimants and the 4th – 8th defendants for the trespass committed on the land.
4. A perpetual injunction restraining the claimants, the 4th – 8th defendants, their servants’ agents and/or privies from further committing acts of trespass on the land.

Equally, the 4th – 8th defendants denied the plaintiffs claim and also counter-claimed both the plaintiffs and 1st, 2nd and 3rd defendants as follows: –
a. Declaration that 1st, 2nd and 3rd defendants and their ancestors Erigi/Odutala are customary tenants of the 4th – 8th defendants.
b. Declaration that the 1st, 2nd and 3rd defendants are not entitled to any statutory right of occupancy in respect of any portion or parcel of land situate, lying and being at Aiyetoro Village which land formed part of the whole land belonging to the 4th – 8th defendants as the 1st, 2nd and 3rd defendants.
c. Forfeiture of the 1st, 2nd and 3rd defendants’ customary rights in Aiyetoro Village for denying the 4th – 8th defendants’ family title therein being part of the 4th – 8th defendants’ said vast area of Itele land.
d. An Order for the possession (by the 4th – 8th defendants) of all that part and parcel of land called Aiyetoro village held by the 1st, 2nd and 3rd defendants within the said vast area of the 4th – 8th defendants’ Itele land described in the survey plan No. BAC/441/019/97 dated 17/6/97 and made by Mr. Bode Adeoga, a licensed survey.

Pleadings were filed and exchanged in respect of the consolidated suits and the matter proceeded to trial wherein parties called witnesses and tendered documentary exhibits. At the end of the trial and in a reserved judgment delivered on 8th October, 2013, learned trial judge entered judgment in favour of the 1st respondent in suit No.HCT/7/89 and dismissed the counter claims of the Appellant herein as well as that of 2nd and 3rd respondents herein. The claim of the 2nd and 3rd respondents herein was dismissed and the counter claims in the said suit No. HCT/212/96 succeeds in part.

Dissatisfied, appellant appealed to this Court through a notice of appeal filed on 13/11/2013 and by leave of Court granted on 30/7/2019, same was amended on 25/7/2019. The said amended notice of appeal contains three (3) grounds of appeal.

Distilled from the amended notice of appeal, learned counsel for the appellant Ayodeji Makanjuola Esan, Esq. formulated two issues for the determination of this appeal as follows: –
1. Whether the appellant by the facts pleaded in his pleadings and consistent unchallenged evidence through the testimonies of the witnesses (DW1 – DW4) have established their entitlement to the reliefs sought in his case. (Distilled from ground 1 and 2).
2. Whether the refusal by the learned trial judge of an application extending the time to file Final Written Address and react to the Court’s holding that the appellant has abandoned his counter-claim amounted to a denial of right of fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. (Distilled from ground 3).

On the part of the 1st Respondent, learned counsel Chief (Dr.) V. A. Odunaiya adopts the two issues formulated by the Appellant. In addition, he raised a preliminary objection to the hearing of the appeal on the following grounds: –
(a) The originating Notice of Appeal dated and filed on 13th November, 2013 is fundamentally defective.
(b) The said Notice of Appeal is headed “IN THE HIGH COURT OF APPEAL”.
(c) The Judgment appealed against is the judgment of the High Court of Ogun State and not that of Honourable Justice O. A. Onafowakan as stated by the Appellants in their Notice of Appeal.
(d) Although, this Honourable Court granted leave to the appellant to file an Amended Notice of Appeal dated the 24/07/2019, we submit that such LEAVE/ORDER did not cure the fundamental defect of the Original Notice of Appeal dated 13th November, 2013.
(e) The Record of Appeal compiled for this Appeal deliberately and/or fraudulently did not contain a copy of the said defective Notice of Appeal which should normally follow the judgment appealed against in the Record.

For the 2nd and 3rd respondents herein, learned counsel Oluwasina Ogungbade, Esq. formulated a sole issue that is:-
Whether in the light of the trial Court’s findings, that the appellant’s Odutala Family are grantees and customary tenants of the Ilegbede Families of Itele, the said Court was not right when it dismissed the counter-claim of the appellant, particular regard being had as well to the existence of credible, cogent and consistent and unassailable evidence supporting the 2nd – 4th Respondents claim of ownership to the land in dispute.

At the hearing of the appeal on 20/7/2020, learned counsel for the appellant, Ayodeji M. Esan, Esq. leading O. D. Mese adopted and relied on the appellant’s brief of argument filed on 5/8/2019 and the Appellant’s reply brief respectively filed on 17/9/2019 and 8/10/2019 but both deemed as properly filed on 20/7/2020 in urging this Court to allow the appeal.

I. O. Balogun, Esq., adopted and relied on the 1st respondent’s brief of argument filed on 27/8/2019 incorporating the preliminary objection. Toyese Owoade, Esq adopted and relied on the 2nd and 3rd respondent’s brief of argument filed on 16/9/2019 but deemed as properly filed on 20/7/2020. Both the respondents urged this Court to dismiss the appeal.

I have carefully gone through the various formulations but the two issues formulated by the Appellant are apt and quite apposite to the just determination of this appeal. I shall therefore determine the appeal in the light of the two issues formulated by the appellant and adopted by the 1st respondent.

Before delving into the respective argument of both counsel, it is prudent to first of all consider the preliminary objection of the 1st respondent being a pre-emptory step taken to terminate the appeal in limine.

Proffering argument on the preliminary objection, learned counsel for the 1st respondent submits that the omission to incorporate the defective original notice of appeal of 13/11/2013 in the record of appeal renders the appeal incompetent and every proceeding which is founded on it is also incurably bad. He referred to Sken Consult Nigeria Ltd Vs Ukey (1981) 1 AC 6 at 9 and Macfoy Vs UAC Ltd (1962) A.C. 152.

In response to the above, learned counsel for the Appellant submits that though a respondent could raise a preliminary objection in the respondent’s brief but such preliminary objection must have been paid for in respect of the main brief. He referred to Order 10 Rules 1 and 3 of the Court of Appeal Rules. He also submits that having conceded to the amendment of the original Notice of Appeal, the 1st respondent is deemed to have waived whatever objection he may have as the purported defect has already been cured by the amendment.

The 1st Respondent’s contention is that the defective original notice of appeal cannot be cured by an amendment of same. Thus, you can only validly amend a valid notice of appeal not a fundamentally defective one, which in the eyes of the law is non-existent or dead.

The law is settled that the subsequent amendment of the grounds of appeal does not change the validity of the grounds of appeal. See Nwaigwe Vs Okere (2008) LPELR – SC 392/2002.
I have reproduced the grounds upon which the 1st respondent is challenging the competence of the original notice of appeal; which basically relates to the heading to wit “IN THE HIGH COURT OF APPEAL” and that the judgment appealed against is the judgment of Ogun State High Court not the judgment of Honourable Justice O. A. Onafowakan. The ground of the said objection in my view relates to the form rather than the content of the ground of appeal.
The whole essence or purpose of the ground of appeal is to give sufficient notice and information to the respondent of the precise nature of the appellant’s complaint against the judgment complained against. Therefore, the rules relating to the drafting of grounds of appeal are designed to ensure fairness to the opposing side. That being the case, once it is fully understood by the opponent, it cannot be declared incompetent. It is not the complaint of the 1st respondent that he did not understand the meaning conveyed by the totality of the grounds of appeal and thus the issue of incompetency does not arise. At any rate, this Court is enjoined to do its best in the determination of the appeal in the interest of substantial justice. I therefore find the preliminary objection lacking in merit and it is accordingly overruled.

Turning back to the main appeal, learned counsel for the appellant has submitted in respect of the first issue, that where the plaintiff and the defendant derived titles from different families, the family or source with a better title will give a superior root of title in support of a declaration of title in favour of a party deriving its title from that family or source. He referred to Exhibits U, V, W, C, Z5, Z6, Z7, Z8, Z9,10, Z11 and Z12 in contending that the Appellant pleaded and gave uncontradicted traditional acts of their predecessor in title, various acts of ownership and possession of the land granted them by the original owners. Thus, the appellant in the consolidated cases never disputed ownership of Itele Land, save for the portion granted them by two of the seven land owning families in Itele.

Still in contention, learned counsel for the appellant referred to paragraphs 40 and 49 of the 2nd Further Amended Statement of defence and Counter-Claim in Suit.: HCT/212/96 wherein the appellant led evidence that the said Aiyetoro Land was founded by Falashin Erigi also known as Bada and some other Egba warriors. The appellant led further evidence to show that they derived their title in Aiyetoro land by grant from Falashin Erigi and subsequently from Ijaguna and Ilegbede families that is, two (2) of the seven (7) recognized land owning families in Itele having presented the members of the families with gifts of cases and four bottle of gin. He thus submitted that the area of land situates and being in Aiyetoro and described and delineated by the survey plan No. OGE/WO/ABB 90 prepared by S. Akin Ogunbiyi, Esq licensed surveyor on 20/9/90 and known as parcels A, B and C (measuring 88.294 hectares, 2.511 hectares and 26.383 hectares belonged to the Odutala Family. He referred to Akinloye Vs Eyiyola (1968) NWLR 92, Piaro Vs Tenalo (1976) 12 SC 31 and Onwugbufor Vs Okoye (1996) 1 NWLR (Prt 424) 252 to the effect that where evidence of tradition is relied on in proof of title to land, to succeed, a party is bound to plead and establish facts such as: –
a) Who found the land,
b) How he founded the land,
c) Particulars of intervening owners through whom he claims.

It was further submitted that the Aiyetoro land as claimed by the Appellant was founded and first settled upon by Falaasin Erigi and four other warriors who made their camp. That by Exhibit U, minutes of a meeting of 10th April, 1935 as contained in a memorandum duly certified, the requirement of how Falaasin Erigi founded the land was also established by the Appellant. He referred to Section 162 of the Evidence Act to the effect that the contents of Exhibit U is sufficient evidence of the facts stated therein and the lower Court was bound by it. And lastly, on the particulars of intervening owners through whom the Appellant claims, learned counsel referred to the evidence of DW1 that the ancestors of Odutala Family are both from Oyo (through Odutala who hailed from Abiodun ruling house in Oyo) and Aiyetoro and Abeolaya (Through Odutola’s marriage to Ombewa, the maternal granddaughter of Oguntoro). It was the Appellant’s contention that Adeniji validly lay claim to Aiyetoro and Abeokuta without any falter and had the lower Court allowed for extension of time to file Appellant’s final address, the anomaly regarding the evidence of DW1 would not have arisen. And having been put in possession of their land by Falaasin Erigi, Ijagunna and Ilegbede by several customary grants in their favour, the appellant according to the learned counsel have established proof of ownership. Hence, the lower Court erred in its findings that the 1st respondent’s family have superior title.

In his response, learned counsel for the 1st respondent relied on the Supreme Court’s decision in Idundun Vs Okumagba (1976) 9-10 SC 27 as to the five ways of proving ownership or title to land as well as Section 46 of the Evidence Act in respect to acts of possession and enjoyment of the land in submitting that the appellant did not offer evidence of such quality or quantity that could entitle him to the relief sought.

He submits that both the respondent’s family (as plaintiffs at the lower Court) and appellant (as 1st – 3rd defendants) based their claim on traditional evidence but the respondent’s family went further to prove Acts in recent years to buttress that Oduntola was their Customary Tenant on Aiyetoro Land and they also called or gave evidence in rebuttal of 1st settlement by Falaasin Erigi (Bada) Odutola or any one of them.

Learned counsel submits that there are contradictions in the appellant’s case and some of which are that they claimed Falaasin Erigi’s Chieftaincy title was “Bada” that Budo Ogun was later placed on trust for the Alake through the Olota who is the representative of Abeokuta. He referred this Court to the Appellant’s Great Grandfather in Suit No.: 223/20, Exhibit N and that of his Father as DW1 to the effect that his Grandfather has admitted that he is only a stranger on the land, the subject matter of dispute. He further referred to the judgment of Ake Grade “A” Customary Court delivered in 1946 on Itele Land inclusive of Aiyetoro Exhibit D as well as other cases in Exhibits A, B, C, D, E and F to show that Adegun, Atele Family, maintained over lordship position over Itele Land since 1920 to date.

On acts in recent years, learned counsel also referred to the predecessors in title of the plaintiffs (in Suit No.: HCT/7/89) and the 1st and 2nd defendants in Suit No.: HCT/212/96 as members and representatives of Adogun Atele Family (a.k.a. Itele Family) who has since 1920 to date defended and/or instituted actions in Court to protect the right and interests of their family over the Itele land which includes Aiyetoro land. He submits that long possession by a customary tenant does not confer title to the land in the tenant’s family. Also, where two people claim to be in possession of land, the law ascribes possession to the one with the better title. He referred to Kasali Vs Lawal (1986) 3 NWLR (Prt 28) 305 and Ajani Vs Ladepo (1986) 3 NWLR (Prt 28) 226. The 1st respondent (as plaintiffs) according to the learned counsel proved their entitlement to the ownership of Itele Land inclusive of Aiyetoro as claimed through traditional history and through their acts in recent years.

On the part of the 2nd – 4th respondents (now 2nd & 3rd respondents); learned counsel submits that by their amended statement of defence and Counter-Claim, their ancestor is one Ogunbemi Alagbeji who begat two sons who in turn begat 11 children including Ilegbede and Ijagona. That their ownership of Aiyetoro town was thus traced to the eleven units of the families made up of Itale people and or Alagbeji’ descendants. That each of the eleven children built his own quarters in Itale town and remains till today. And ten out of the eleven family units and their respective descendants are known as Itale people.

Learned counsel contends that the evidence of the 1st respondent as plaintiffs before the lower Court regarding the traditional history is riddled with inconsistencies and contradictions which ought not to attract any probative value. He specifically referred to the evidence of PW8 whom he said initially admitted under cross-examination that the 11 names constitute the families in Itele and that he is from Iliwo Family but subsequently recanted and said that the names are compounds. It was submitted that the evidence of PW8 to the effect that Ijagunna, Ilegbede and Co “are all families in Itele and that the families makes up Itele People” is an admission against interest which clearly support the 2nd & 3rd respondent’s case. He referred to Adebambo Vs Olowosago (1985) 3 NWLR (Prt 110) and Onovo & Ors Vs Mba & Ors (2014) LPELR 23035 (SC) to the effect that where witnesses called by a defendant gave evidence which supported the plaintiff’s case and the defendant did not treat them as hostile witnesses, the evidence of such witnesses must be treated as an admission against interest upon which the plaintiff is entitled to rely as further re-enforcement of his case.

On Exhibit D, learned counsel submitted that it supports the existence of land owing families in Itele which constitute the Itele people and therefore Exhibit D bears no relevance to the case presented by the 1st respondent who merely identified these names as compounds. Also based on the appellant’s admission that his Odutola Family was granted by Ijagonna and Ilegbede families means that Ijagonna and Ilegbede families relates to names of individuals and not compounds.

It was further submitted that Exhibit U which was authored in 1935 did not make any reference to Aiyetoro Township and or to Falaasin Erigi. And being a record of meeting wherein the ownership of the district of Ota by the Egbas was discussed, Section 162 of the Evidence Act cannot apply to Exhibit U.

The fulcrum of the Appellant’s case in respect of the first issue is that there was no cogent evidence to support the 1st respondent’s claim that the appellant’s family is customary tenants in the disputed land. And that the lower Court failed to consider the documentary evidence adduced by the Appellant in proof of their counter-claim.

The 1st respondent’s claim before the lower Court as stated elsewhere in this judgment is for declaration that they are entitled to the right of occupancy over Aiyetoro town and that the Appellant’s Odutala Family are customary tenants of the 1st respondent and hence prayed for forfeiture of customary tenancy and recovery of possession of Aiyetoro town from the Appellant.

By virtue of Section 133(1) and (2) of the Evidence Act, in civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either sides regard being had to any presumption that may arise on the pleadings. Thus, if the party adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleadings have been dealt with. Put differently, where a claimant has adduced sufficient evidence to warrant a declaration of title being made in his favour, the onus shifts to the defence to satisfy the Court that his own title is such as to oust the title of the original owner.

It is settled that there are five methods by which title to land may be proved and these are: –
(a) by traditional evidence,
(b) by production of documents of title duly authenticated and executed,
(c) by acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership,
(d) by acts of long possession and enjoyment,
(e) by acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.
SeeIdundun Vs Okumagba (supra), Nkado Vs Obiano (1997) 5 NWLR (Prt 503) and Owhonda Vs Ekpechi (2003) 17 NWLR (Prt 849) 326.

In the instant case, the 1st respondent as plaintiffs pleaded and led evidence through traditional history and also shown acts in recent years. It was the case of the plaintiffs (now the 1st respondent) that both the land in dispute inclusive of the larger expense and smaller portion belong to their family that is Itele Family. Their evidence is that the land was originally settled upon by their progenitor, Adogun Atele, a professional black smith and hunter who migrated from Benin to settle at Itele many years ago. Adogun has four children namely Imidar Osa (Orisa) Ogunronbi and Alagbeji from whom they descended. Thus, the 1st respondent’s predecessor have from time immemorial been in long and undisputed possession of the land wherein they exercised varied acts of ownership. They tendered Exhibits N, L, J, I, H and F which are cases instituted and defended by them to show that they are the undisputed owners of Itele and Aiyetoro land.

The Appellant’s case on the other hand is that the land in dispute was the area where one Falaasin Erigi and 4 other warriors from Ibara Orile in Egba land encamped during the military escapade some 400 years ago. In effect, their ancestors founded the land and even made grants to some people who now own houses and live with their relations. The appellant’s contention is that their land does not form part of Itele land and tendered minutes of meeting held at Olota’s palace on 14/4/1935 in which the ownership of the district of Ota by the Egba was questioned.

The learned trial judge after considering the divergent traditional history, he believed the 1st respondent’s evidence and disbelieved that of the appellant and concluded at page 829 of the record of appeal as follows: –
From the evidence in this case, my opinion of those who called themselves Ogungbemi Alagbeji descendant’s family is that they are marauders who driven by their covetousness of Itele land decided to invent and foist to non-existing traditional history on Itele. That obviously accounted for the confusion and contradiction in their case resulting in its ultimate failure. It is my view that their evidence does not make consistent sense neither did it affirmatively link them with the traditional history they pleaded.
…I reject the evidence in totality. I have carefully considered and weighed the respective traditional evidence of the parties, I find the evidence of Adegun Atele more cogent, credible and more probable than that the evidence of Odutala family and Ogungbemi Alagbeji descendants’ family separately and both put together.”

The question here is did the above findings supported by the evidence adduced at the trial? I have stated that both parties in this case chose to prove their title to the land by way of traditional history. In law, for a party to succeed in a claim for a declaration of title to land, such party must plead and lead credible evidence establishing evidence establishing facts: –

(a) Relating to the founding of the land in dispute,
(b) The person or persons who founded the land and exercised original acts of possession,
(c) The person on whom the title in respect of the land was devolved since the first founding, without any break or gap in the claim of devolution to the present owners.
See Piaro Vs Tenalo & Ors (1976) 12 SC 31 at 41, Woluchem Vs Gudi (1981) 1 NWLR (Prt 4) 572 at 628 and Ezeokonkwo Vs Okeke (1999) 19 NWLR (Prt 623) 359.
It is imperative to state also that in the appraisal and evaluation of the evidence led in the case, the trial Court should bear in mind that where both sides to the dispute claim ownership to the land based on traditional or ancestral history, it is the party that advances better evidence of traditional history or ownership that will be entitled to the judgment of the Court. See Osu Vs Igiri (1988) 1 NWLR (Prt 69) 221. In Akanbi Vs Salawu (2003) 6 SC (Prt 11) 144 at 148-149, the Supreme Court was emphatic that where however the traditional histories of both parties are plausible but conflict one with the other so that it will not be open to the Court simply to prefer one to the other, then the situation of the rule in Kojo II Vs Bonsie (1957) 1 WLR 1223, which is that preference of one history to the other as being more probable would depend on recent acts of possession shown by the parties that the Court need to consider to make up its mind.

In the instant case, the plaintiffs (now 1st respondent) pleaded to assert ownership of the land in question i.e. Itele family land which forms portion of a very large area of land and which one Adogun Atele was the first settler. That the said Adogun Atele was their own great grandfather and the first settler in the town now known as Itele (including the land in dispute).

The plaintiffs also pleaded and gave evidence as to the names of those after him to whom the land devolved up to the last successors. In paragraphs 24 and 25 of the 7th Amended Statement of Claim they averred as follows: –
24. The plaintiffs are the accredited representatives of the Itele Family of Itele town, the 1st plaintiff being the head of the family while the 2nd plaintiff is the principal member of the said family.
25. At a meeting of the said family held on Thursday 22/12/88 at Itele town in Ogun State, members of the said Itele family authorized the plaintiffs to take this action on behalf of themselves and on behalf of the Itele family.”

The plaintiffs further averred in paragraphs 32 – 40 thus: –
“32. The Itele family (through Ajose) granted land for farming purposes only to Odutola as a customary tenant of the Itele family on the payment of customary rents (Ishakole) of palm oil, maize, yams, plantains etc through Ajose to the Itele family.
33. The Itele family later allowed Odutala to build a small dwelling house on part of the land given to him as customary tenant.
34. Odutala was paying rents (Ishakole) of palm oil, maize, yams, plantain etc. and later the customary rents were converted to cash payment and Odutala and his descendants were paying.
35. Several years ago, the descendants of Odutala appealed to the Itele family to waive for them the payment of rents as the members of the Itele family and the descendants of Odutala have been living together peacefully. The Itele family agreed.
36. The Original defendants were acknowledging the ownership of the plaintiffs until about 1988 when they started to erect a building on the portion of the land given to their ancestors for faming only.
37. The plaintiffs challenged the original defendants on the question of their erection of a new building but the original defendants replied to the plaintiff that they (the original defendants) were just exercising their own rights of ownership over the land in dispute and that they/or their ancestors were/are not customary tenants of the plaintiffs on any portion of the land in dispute.
38. The land in dispute is edged Orange on plan PEG/06/2001/025 prepared by T. O. Olorukunle dated 25/12/2001, a copy of which has already been filed in Court.
39. After the institution of this action, the oldest member of the Odutala family died and the members of the Odutala family begged the Itele family (as their acknowledged landlord) to be allowed to bury the deceased at Aiyetoro Village, Itala and the Itele family agreed as a result of which the deceased was buried at Aiyetoro.
40. Except in the cases of Ayuba Amosun and Fatai Agoro, the joined defendants do not belong to any of the branches that make up the Itele family.

The evidence of the plaintiffs is in tandem with the above assertions. For instance, when PW1 was cross-examined, he stated as follows: –
“I am the Baale of Adeleye Village. I am about 80 years of age. Odutala was a customary tenant. I know Saibu Olugbode, Kafaru Arowolo and Ayuba Dada. They are customary tenants of Adogun Atele family.”

The action of the appellant as gathered from the record is that the area known as Aiyetoro Village is where his predecessors have been inhabiting for about three centuries. The land in dispute was the area where one Falaasin Erigi and four other warriors from Ibara Orile in Egba encamped during the military escapades.

The law is settled that the best way to determine which of the competing traditional histories is more probable to test them by reference to the facts and/or events in recent years as established by evidence. Thus, the learned trial judge was quite right in my view when he tested the traditional histories by reference to facts and/or events in recent years at page 828 of the record of appeal thus: –
“I not only find the traditional evidence of the Adogun Atele family substantially in line with their pleadings, it is unchallenged, consistent and link the family to the history pleaded, it is supported by the DW13 who by virtue of exhibit Z13 admitted that the land belonged to Adogun Atele family and that his father Sadiku Ajiboye was a member of the family. In further proof of their title, the family led evidence that their ancestors before them instituted and successfully contested many cases on Itele land ranging from ownership of the land, payment of rents by tenants and of recent the Obaship of Itele land. Certified true copies of the judgments in the cases were admitted in evidence without objection.”
He thereafter concluded that: –
“Rather than their traditional evidence to prove that Odutala family owns Aiyetoro, it proves that the family is a tenant of Ajagunna and Ilegbede families in Itele. In fact, the DW1 eventually agrees under cross-examination that Ijagunna family owns Aiyetoro. I therefore find the Odutala family’s traditional evidence of ownership of Aiyetoro land not only contrary to the history pleaded, it was incredible. The traditional evidence of the Ogungbemi Alagbeji family is no better.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the light of the foregoing and considering the fact that the learned trial judge had considered all the evidence adduced on the issue and disbelieved the Appellant and by extension the 2nd and 3rd respondents, this Court cannot delve into the issue of credibility of witnesses except when the trial Court decides to believe a witness quite contrary to the trend of accepted evidence which is not the case here. Thus, the first issue is resolved against the appellant.

On the second issue, learned counsel for the Appellant referred to Section 36 of the 1999 Constitution and the case of Ediru Vs FRSC (2016) 4 NWLR (Prt 1502) to submit that any proceedings done in violation of the principles of fair hearing is null and void. Likewise, any step taken subsequent upon such violation suffers the same bad fate. He contends that the proceedings of the trial Court conducted on 25/6/3023 wherein the appellant (as 1st – 3rd defendants in Suit HCT/7/59 and 3rd – 5th defendants in Suit HCT/212/96) which denied him the right to address the Court runs foul of the principles of natural justice and fair hearing.

Still in argument, learned counsel submits that in the absence of any counter affidavit whatsoever, the deposition that was contained in the application, being unopposed would be deemed admitted. He referred to Adusei Vs Adebayo (2012) 3 NWLR (Prt 1288) 534 at 552 to the effect that admissions made do not require to be proved for the simple reason that no better proof is required than that which an adversary wholly and voluntarily opens up. He concluded that though the Appellant’s counsel was obliged with two adjournments for him to file the final address, it was contended that taking into the account of the length of time of the trial, it was improper for the trial Court to refuse an innocuous application for extension of time to file address. He submits that the Rules of Court are made to aid the administration of justice and that a Court is said to have exercised its discretion judicially and judiciously if it was so exercised in favour of an applicant who has made out in his affidavit some exceptional circumstances as to sway the mind of the Court to exercise the discretion. He referred to Canal Investment Ltd Vs T.C.R. Ltd (2017) 23 NWLR (Prt 1553) 441 at 460 to the effect that the Court must be fair to all those who have interest in its decision.

In his response, learned counsel to the 1st respondent submits that the issue of fair hearing under Section 36 of the 1999 Constitution does not apply to the present case because the appellant and his witnesses were duly heard and prosecuted their case at the lower Court. Thus, the appellant uninhibitedly participated in the trial from the beginning to the end. He submits that the appellant having been granted enough indulgence to file the final address cannot complain. The Rules of Court according to the learned counsel are meant prima facie to be observed and no favour should be shown for not obeying same. He referred to Usman Maitsidau & Anor Vs Engineer Hamisu Ibrahim Chidari & Ors (2008) All FWLR (Prt 438) 355.

The fair hearing provision in the Constitution is a machinery of justice not a spare part to propel or investigate the case of the user. It is not a casual principle of law to a party to be piled up at will in a case and force the trial Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied a fair hearing because he is not heard or that he is not properly heard in a case. See Adebayo Vs A.G. Ogun State (2008) 9 NWLR (Prt 1085) 201 at 171-172.

The Appellant’s complaint in this case was not that the lower Court denied him right to call or cross-examine the witnesses but that his request for extension of time to file final address was denied by the lower Court. It is pertinent to stress that the hearing of a case at least under our judicial system is that every party must not only be heard but must also be afforded the opportunity of being heard. Implicit of that rights, addresses from a party in a case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side vitiate the trial because in many cases it is after the addresses that one finds the law on the issue fought not in favour of the evidence adduced. See Nwabueze Vs Amadi & Anor (2015) LPELR – 41762 (CA).
Although, a party is not obliged to address the Court, the right to address is nevertheless there. In other words, where it has been statutorily provided that a Court must entertain final addresses before hearing can be complete, it must be accorded to all the parties. In Obodo Vs Olomu (1987) 3 NWLR (Prt 59) 111 at 121, the Supreme Court held that address of counsel forms a crucial part of a case and failure to consider the address of one party especially in a case such as the one which carries the death penalties.
By virtue of Section 294(1) of the 1999 Constitution, every Court established under the Constitution shall deliver its decision in writing not later than ninety days after conclusion of evidence and final addresses. Hence, the right of a party to a case to address the Court after the close of evidence is constitutional. However, cases are decided not on addresses or allowing closing speech but on credible evidence. Therefore, no amount of brilliant address can make up for lack of evidence to resolve any issue before the Court. See Niger Construction Ltd Vs Adesanya (2004) 6-7 SC (Prt 1) and Oforishe Vs Nigerian Gas Co. Ltd (2017) LPELR 42766 (SC).
In the instant case, the appellant as could be seen from the additional record was granted two previous indulgence to file Final Address and even when he filed the last application for extension of time to file the said Final Address, the Final Address was not even ready at that time. As at the time of the 3rd application from the initial one, was a period lasting three (3) months and three (3) days.
The first point that must be made here is that adjournments of cases fixed for hearing are not obtainable as a matter of course but may be granted or refused at the discretion of the Court.
Secondly, for an applicant seeking an extension of time prescribed by rules of Court for taking certain procedural steps to succeed, the application must establish good, substantial or exceptional reasons or circumstances to explain satisfactorily the delay in filing of his process or taking the steps in issue and thus justify the grounds of the extension applied for. Whatever decision a Court arrives at in such circumstances must depend on the exercise of its discretionary jurisdiction, having regard to the general principle of law governing the exercise of discretionary powers of the Court and guided by the consideration of doing justice to all the parties to the dispute. See Long John & Ors Vs Blakk & Ors (1998) LPELR – 1791 (SC).

I am also not unmindful of the fact that the Courts in deciding the rights of parties are to do justice and not punish them for mistakes they make. It is however my view that considering the peculiar circumstance in this case to wit, the over indulgence granted to the appellant to file the Final Address and also the fact that even at the 3rd request, the appellant was merely applying for extension of time to write the Final Address, the lower Court was clearly not injudicious in refusing to exercise its discretionary power in his favour. The second issue is also resolved against the Appellant.

In the result, the learned trial judge was right to have believed and accepted the 1st respondent’s evidence and granted their claims. I do not see any reason to disturb the conclusion reached by the learned trial judge. The appeal is therefore unmeritorious and it is accordingly dismissed with costs which I assessed at N200,000.00 against the appellant and in favour of the 1st respondent.

ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Judgment of my Learned Brother, Muhammed L. Shu’aibu, JCA, dismissing this appeal. I agree completely with the reasoning and conclusions of my Learned Brother that the appeal is without merit. I will only make few comments in support.

In proof of title to the disputed land, the Appellant relied on traditional history. In such instance, the plaintiff has the onus to plead the root of title, the names and history of his ancestors, without any yawning gap. The evidence must be cogent, clear and uncontroverted. Indeed, the settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
a. Who founded the land;
b. How he founded the land; and
c. the particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) 4 NWLR (PT 651) 131; Makinde v Akinwale (2000) LPELR-1829(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44.

It is also the settled position of the Law that where the traditional evidence of the plaintiff is inconclusive, or, if as given by both parties, the traditional evidence is inconclusive or is in conflict, the trial Court is entitled to consider whether the plaintiff has established such numerous and positive acts of ownership within living memory sufficient to establish that he is the absolute and exclusive owner of the land in dispute; Alade v. Awo (1975) LPELR-400(SC); Balogun v. Akanji (1988) LPELR-720(SC), (1988) 2 S.C. 199; Mkpinang & Ors v. Ndem & Ors (2012) LPELR-15536(SC); Faleye & Ors v. Dada & Ors (2016) LPELR-40297(SC). The learned trial Judge, in line with these settled legal principles, tested the traditional histories of the contending parties by reference to facts and events in recent years, including extant legal pronouncements on the ownership of the disputed land. I have considered the reasoning of the learned trial Judge and see no reason to disturb his conclusions thereon.

For these reasons and for the more comprehensive reasons given in the lead Judgment, I also dismiss this appeal and abide by the orders made therein, including the order as to costs.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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TIJJANI ABUBAKAR, J.C.A.: The law is well settled on fairly long number of judicial decisions that there are five methods of proving title to land; the methods are as set out below:
(a) by traditional evidence,
(b) by production of documents of title duly authenticated and executed,
(c) by acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership,
(d) by acts of long possession and enjoyment,
(e) by acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.
SEE:IDUNDUN VS OKUMAGBA (1976) 9/10 SC 27 and OWHONDA V. EKPECHI (2003) 17 NWLR (Pt. 849) 326.

The instant appeal deals with evidence of traditional history and acts in recent years as presented by the contending parties. The evidence of the 1st Respondents as plaintiff disclosed that their predecessors were from time immemorial in long and undisputed possession of the land subject of litigation, and exercised unrestricted varied acts of ownership, and tendered in evidence at the trial Exhibits N, L, J, I, H and F, cases upon which they fought and defended their undisputed title to the said Itele and Aiyetoro lands.

The contention of the Appellants is that their ancestors founded the land and upon exercising various acts of possession granted rights to some people who came to establish settlements with their families. Appellants further contended that their land does not constitute an integral part of the Itele land. Appellants tendered various documents also evidencing their undisputed title.

In an attempt to do justice in arriving at a fair and just decision on the historical evidence generated by the contending parties through their various witnesses, the learned trial Judge conducted a meticulous and incisive analysis of the evidence and came to the conclusion that the historical evidence led by the 1st Respondent is more plausible, it is therefore cogent and convincing, at page 828 of the records of appeal, the learned trial Judge held as follows and I quote:
“I not only find the traditional evidence of the Adogun Atele family substantially in line with their pleadings, it is unchallenged, consistent and link the family to the history pleaded, it is supported by the DW13 who by virtue of exhibit Z13 admitted that the land belonged to Adogun Atele family and that his father Sadiku Ajiboye was a member of the family. In further proof of their title, the family led evidence that their ancestors before them instituted and successfully contested many cases on Itele land ranging from ownership of the land, payment of rents by tenants and of recent the Obaship of Itele land. Certified true copies of the judgments in the cases were admitted in evidence without objection”.

I am also in total agreement with the stand of the learned trial Judge.

For the reasons set out herein and the more detailed, comprehensive and elaborate reasons in the illuminating leading Judgment prepared and rendered in this appeal by my learned brother SHUAIBU JCA, who graciously granted me the privilege of reading before now, I queue behind my learned brother in holding that Appellants appeal is devoid of a jot of merit and therefore deserves to be and is also hereby dismissed by me. I endorse all consequential orders in the leading Judgment including the order on costs.

Appearances:

AYODEJI M. ESAN, with him, O. A. OLANREWAJU and O. D. MESE For Appellant(s)

O. BALOGUN – for 1st Respondent
TOYESE OWOADE – for 2nd & 3rd Respondents For Respondent(s)