OGUNKOLADE & ANOR v. OJO & ORS
(2020)LCN/15224(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Wednesday, March 18, 2020
CA/EK/14/2019
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
CHIEF AJIBADE AJIJOLAIYA OGUNKOLADE & ANOR APPELANT(S)
And
OLATUNJI OJO & 6 ORS RESPONDENT(S)
RATIO
WAYS OF ESTABLISHING OR PROVING TITLE TO OR OWNERSHIP OF LAND
It is trite that a plaintiff seeking a declaration of title to land, has a duty to prove ownership of the land. There are five (5) ways of proving or establishing title to or ownership of land. These are:
1. By traditional evidence,
2. Production of title documents duly authenticated in the sense that their due execution must be proved
3. By positive acts of ownership extending over a sufficient length of time
4. By acts of long possession and enjoyment of the land
5. By proof of possession of connected or adjacent land,
would in addition, be the owner of the land in dispute.
The law is that the establishment of one of the five ways is sufficient proof of ownership.
AYOOLA V ODOFIN (1984) 11 SC PG.120 EWO VS ANI (2004) 17 NSCQR PG. 36 NKADO VS OBIANO (1997) 5 NWLR PT. 503 PG. 31, NKWO VS. IBOE (1998) 7 NWLR PT. 558 PG. 354, ADESANYA VS ADEROUNMU (2000) 6 SC PT.11 PG. 18. PER ANYANWU, J.C.A.
WHETHER OR NOT THE BURDEN OF PROOF RESTS ON THE PLAINTIFF IN A CLAIM FOR DECLARATION OF TITLE
In a claim for declaration of title, the burden is on the plaintiff to proof his case by setting out clearly by who and how the land was founded and the names of persons who had exercised act of ownership on the land before it devolved upon him: See OLOKOTINTIN VS SARUMI (2002) 13 NWLR PT. 784 PG. 307. PER ANYANWU, J.C.A.
WHETHER OR NOT A PARTY RELYING ON EVIDENCE OF TRADITIONAL HISTORY MUST PLEAD HIS ROOT OF TITLE
A party relying on evidence of traditional history must plead his root of title. Not only that, he must show in his pleadings who these ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. Also, where a person traces the root of his title to a person or family he must establish how that person or family also came to have title vested in him or it. This principle applies to the defendant as well. OKOKO VS DAKOLO (2006) 14 NWLR PT. 1000 PG 401. PER ANYANWU, J.C.A.
UZO IFEYINWA NDUKWE ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ekiti State sitting at Ado Ekiti delivered by C. I. Akintayo J on 5th of July, 2018 declaring the Respondent as claimant in the Lower Court as the owners of the land in dispute. The Appellants were the defendants in the Court below and were naturally dissatisfied with the outcome of the Judgment hence this appeal.
The Respondents as claimants in the Lower Court brought an action for declaration and trespass against the Appellants as defendants. The Respondents claimed inter alia.
a. A DECLARATION ORDER of this Honourable Court that the claimants as the bonafide owners and principal members of Oke-Agbe of Owaponri family are entitled to the Statutory Right of Occupancy in respect of their family land and farmland situate, lying and being at Aeusi farmland, along Ilawe Road, Ado Ekiti and which same stretched from Ah-apple (idiigiisin) tree to Orunro Stream along Ilawe Road, Ado Ekiti and bounded as follows:
a. On the first side by Sapetu and Odolofin families farmlands of Odo Community in Ado Ekiti.
- On the second side by Aransin family farmland
c. On the third side by Olokoi and Ijemu families farmland
d. On the fourth side by Iyin Ekiti and Igede Ekiti people farmlands with Orunro Stream as the demarcation in between claimants’ family land with lying and Igede.
b. A perpetual Injunction restraining the defendants, their agents, servants, privies, relations and anybody that is claiming anything whatsoever under them from further trespassing on the claimants’ family land and farmland situate, lying and being at Aseusi farmland, along Ilawe Road, Ado Ekiti, and which same stretched from Ache-apple (idiigiisin) tree to Orunro Stream along Ilawe Road, Ado Ekiti.
c. N100,000,000.00 (Hundred Million Naira Only) as damages for the trespass committed and still being committed by the defendants on the claimants’ family land situate, lying and being at Aseusi farmland, along Ilawe Road, Ado Ekiti which same stretched from Ache-apple (idiigiisin) tree to Orunro Stream along Ilawe Road, Ado Ekiti.
The Respondents as defendants filed their statement of defence but did not counter claim for anything. Pleadings were therefore, joined and trial commenced and ended. The learned trial Judge found for the Respondent in part declaring the Respondents as the owners of the land in dispute. However, the learned trial Judge refused the Respondents’ claim for perpetual injunction and damages for trespass.
The Appellants were dissatisfied with the outcome of the said Judgment and filed their notice with three (3) grounds. The Appellants filed their Appellants’ Brief on 21st of June, 2019 and articulated 2 issues for determination as follows:
1. Whether on the preponderance of evidence on record adduced by the parties, the Respondents prove better title to Aseusi farm land now in dispute.
2. Whether the Lower Court assessed the evidence before it properly, particularly Exhibits T and U put forward by the Appellants before arriving at the conclusion that the Aseusi farm land now in dispute is that of the Respondents.
Also filed is the Appellants’ Reply Brief on 24th July, 2019.
The Respondents also filed their brief on 9th July, 2019 and formulated one issue for determination by this Court. It is as follows:
With regard to the pleaded facts and evidence of the parties on records, whether the trial Court did properly evaluate the piece of evidence along with the documentary evidence placed before it, before arrived at the judgment and thereby granted the declaration of title in respect of the disputed Aseusi farmland to the Respondents (GROUNDS ONE, TWO & THREE).
I will utilizes the issue donated by the Appellant, the owner of this appeal to determine it.
ISSUE 1
The Respondents in the lower Court agreed that they actually are originally from Akoko in the present day Ondo State. They migrated from there and settled in Ado-Akiti. When the white men came the Respondents were pushed away from their settlement. They claimed the Ewi of Ado Ekiti then asked them to look for alternative place to settle. They claimed they found a suitable place to resettle. The then Ewi granted them permission to settle there. They also claimed that they were very jubilant, and in their Jubilation the land was named Aseusi. They claimed they had been living there since the Reign of the first Ewi of Ado Ekiti.
It is trite that a plaintiff seeking a declaration of title to land, has a duty to prove ownership of the land. There are five (5) ways of proving or establishing title to or ownership of land. These are:
1. By traditional evidence,
2. Production of title documents duly authenticated in the sense that their due execution must be proved
3. By positive acts of ownership extending over a sufficient length of time
4. By acts of long possession and enjoyment of the land
5. By proof of possession of connected or adjacent land,
would in addition, be the owner of the land in dispute.
The law is that the establishment of one of the five ways is sufficient proof of ownership.
AYOOLA V ODOFIN (1984) 11 SC PG.120 EWO VS ANI (2004) 17 NSCQR PG. 36 NKADO VS OBIANO (1997) 5 NWLR PT. 503 PG. 31, NKWO VS. IBOE (1998) 7 NWLR PT. 558 PG. 354, ADESANYA VS ADEROUNMU (2000) 6 SC PT.11 PG. 18.
Both parties in furtherance of their pleadings tried to prove their individual case by traditional evidence and of long possession.
In a claim for declaration of title, the burden is on the plaintiff to proof his case by setting out clearly by who and how the land was founded and the names of persons who had exercised act of ownership on the land before it devolved upon him: See OLOKOTINTIN VS SARUMI (2002) 13 NWLR PT. 784 PG. 307.
A party relying on evidence of traditional history must plead his root of title. Not only that, he must show in his pleadings who these ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. Also, where a person traces the root of his title to a person or family he must establish how that person or family also came to have title vested in him or it. This principle applies to the defendant as well. OKOKO VS DAKOLO (2006) 14 NWLR PT. 1000 PG 401.
The Respondents claimed that they requested for an alternative land from the Ewi of Ado Ekiti. He in turn as they claimed asked them to go look for a suitable place. The Respondents said they saw the land in dispute and liked it. They then requested for it. They claimed they were given. However, the Respondents did not say whether it was an outright gift or that they were tenants to the Ewi who gave them the land.
From all indication from both parties, the land in dispute is a large expanse of land. The Respondents by Exhibits T, U, & C are itinerant litigants.
In Exhibit “T”, the Respondents brought a dispute to the Ewi’s Palace i.e the traditional arbitration of disputes. In Exhibit “T”, the Respondents were the plaintiff’s in that case and they lost. The disputed land was in Aseusi. The decision of the panel of 7 is captured as follows:
The Judgment delivered by Ewi Palace Court 2 Judges comprising:
Chief Odunro, Chief Asao, Chief Erunwon, Chief Olugbaye and Chief Ojomu affirmed the authenticity of Oloja Ese as the paramount Chief of Aseusi whereas Owaponri family has farmland at Aseusi.
The panel has complied with its terms of reference to read and confirm all statements made in the Judgment and found out:
That Owaponri has no historical antecedents to the said land, rather the members of the family were given portion of the land for cropping.
The panel stands by the previous Palace Court 2 Judgment and now ascertain the following:
1. That Owaponri surveyed 2.296Ha at Aseuse on 6th August, 2012.
2. That the same Owaponri further surveyed 155.33Ha on 4th September, 2012.
3. That the Total Area now surveyed by Owaponri is 157.62Ha whereas:
4. That the area surveyed by Owaponri is quite larger than the area claimed and surveyed by his landlord – The Oloja Ese. This is strange.
5. It is certain that Owaponri had surveyed the adjoining pieces of land surrounding the area in dispute as part of its own land.
6. It is hereby resolved that Owaponri family should only be given the portion of Oloja Ese family land at Aseusi where they have economic trees.
7. That Owaponri family should be careful and not lay claim to what does not belong to her to avoid further disputes with her neighbours.
8. And finally, Owaponri is hereby mandated to live in peace with her landlord – The Oloja Ese family and other neighbours.
9. All does not form part of this resolution by the panel.
10. All the excess land not surveyed by Oloja Ese nor claimed by him does not form part of this resolution by the panel.
In sum, it declared the Oloja Ese family as the owners of the land in dispute which is part of the land in Aseusi Ado Ekiti.
In Exhibit “U”, the Respondents were the plaintiffs in another land dispute in Aseusi Ado Ekiti. The panel of five (5) delivered their decision. They held as follows:
1. Both parties are working or have tenants on the land.
2. That Chief Oloja Ese was the earlier Chief on the land cannot be disputed since the aboriginal things on the land belongs to him as evidence confirmed.
3. The Chief Orunaja brought Chief Owaponri to him. Oloja Ese at Aseusi during the war with Ilawe and Ado was confirmed by Chief Orunaja. But no concrete evidence.
4. The Chief Oloja Ese family has the majority area of Aseusi farmland cannot be disputed through the area covered by their cocoa plantation on the land that belongs to him and his family.
5. That both parties have huts together at Aseusi farmland but out of the 14 huts, Chief Owaponri has 8 while Chief Oloja Ese has 6 for their workers.
6. All the workers of the two parties are living amicably together on the farms carrying out the farm work without hindrance.
7. Our visit to Ojumose/Okeagbe revealed that both Chief Owaponri and Chief Orunaja families have their houses at Ojumose. We also observed that their houses are interwoven without disturbing each other. Since the two parties have been living together peacefully without hitch and their houses are interwoven, this Court advised that both parties should continue to retain and control their property and live harmoniously as before.
As we were returning to the formal huts area, Mr. Ilesanmi Ogundipe of Oloja Ese family called our attention to his father’s old hut and the remnant of the hut and other old used materials in the hut were all scattered there.
When we reached the formal huts, this Court asked both parties whether all the boundaries already mentioned by the two parties applicable to Aseusi two.
Both parties responded “Yes” and both agreed that it was not necessary we go to Aseusi two because both Aseusi one & two are the same Aseusi.
As we proceeded from the huts to the main road where our vehicles were parked, we met Mr. TayoOlokori from Olokori family whom Chief Oloja Ese said that he has boundary with by the East. He confirmed that he has boundary with Chief Oloja-Ese.
QUESTION FROM CHIEF OWAPONRI TO MR TAYO OLOKORI:
Question 1: Can you mention two people from Chief Oloja Ese family that you have boundary with?
Answer: Yes Mr. Ilesanmi Ogundipe.
Question2: Do you know that Mr. Ilesanmi Ogundipe is from Chief Oloja Ese family?
Answer: I don’t know.
Question 3: Do you know that Chief Olokorire ported land dispute with Chief Owaponri on perimeter survey of Aseusi at the Palace?
Answer: I don’t know.
This Court ordered the two parties that nobody should carry out any survey, selling of plots or any other commercial works on the land besides harvesting food crops on the land pending the determination of the case by His Royal Majesty. Also nobody should cause any trouble on the land.
OUR JUDGMENT
With all our findings especially the remnant of the antiquity materials visible at the site of Chief Oloja Ese old blacksmith place, also Chief Oloja Ese and his family Cocoa Plantation including the abode huts of his worker at Aseusi farmland, this Court concluded that Chief Oloja Ese has land at Adeysi farmland. As such, this Court ruled that all the area where Chief Oloja Ese has cocoa plantation including his old blacksmith area should be left for him if any part or portion has been tampered with, he should be compensated.
We hope that with this judgment, both parties will accept our faithful ruling and continue to live together harmoniously.
Again the Respondents’ lost to the Chief Oloja-Ese.
In Exhibit “C”, the Respondents family were the defendants. The plaintiff in that case had requested that the land granted him for farming purposes should be left for him to enjoy in peace. This request was upheld by the Palace Court. The Palace Court held in their Judgment that:
JUDGMENT
That the place in dispute was named Aseusi by Chief Owaponri and the name remains till today.
That Chief Olotin cannot lay his hand or show a particular ESIU of his on the disputed land or his hut or ancient building as UPOLE on the disputed place.
He is not familiar with the terrain of the land rather than depending on second hand information from people over the disputed land.
The Olotin representative on the land could not identify the traditional boundary points between Aseusi and its neighbours e.g. Odo, Iyin and Sasanyin.
From 1892 to 1922 (100 years interval) as claimed by Chief Olotin who where the people farming on this farmland? We have the Okeagbe people on the land with various plantation like Cocoa, Palm trees, Colanut, Oranges and other legacies as existing structures, monumental but ancient legacies to prove the ownership – streams natural boundary pillars – (Poroguns) places of worship and proves from the present people living in the settlement all supporting Okeagbe’s ownership.
After the death of Pa Bejide his son, Omotoso, is the only one farming on Aseusi land, different from Okeagbe people.
The two parties claimed, however, that Kabiyesi, the Ewi of Ado Ekiti, gave them the disputed land for farming ventures. It is clear that the ownership of the disputed land rests on Kabiyesi with all the evidence before us and from what the delegates of the ‘Agba-Aos saw on the disputed land when they visited the land showed that Oke-Agbe people are firmly in control of the area and undoubtedly the owners.
Evidences from the Odo Chiefs, Sapetu and Odolofin, are in support of the Okeagbe people occupying the land many years past. The old structures of the Upole, traditional boundary pillars, the ancient places of worship, their markets and blacksmith industry all stand as evidences in support of Oke Agbe people as being the actual occupants of the place in dispute.
The sons of Bejide, representing Olotin family, should however continue working on their father’s plantation/land without any molestation since Kabiyesi is the owner of the disputed land, the Royalty over the Aseusi land must henceforth be paid to His Royal Majesty the Ewi of Ado-Ekiti. This could be done through the accepted leader chosen by His Royal Majesty to do the assignment for him. In conclusion, Kabiyesi ruled that no part of the Aseusi land should be sold by anyone or group of people without the consent and approval of His Royal Majesty, the Ewi of Ado-Ekiti.
Yet again the Respondents did not succeed in the matter. The Plaintiff, Chief Bejide representing the Olotin family won.
In all three disputes brought to the Palace Court were lost by the Respondents. See Exhibit “T, U. & C”.
After all these losses, the Respondents then sued the Appellants in Court claiming the same Aseusi land.
In two out of the three disputes donated in the Palace Court for adjudication, it was the Respondents that were the claimants and they lost. They still lost in the last one Exhibit “C” that they were defendants. In all three disputes, it would be said that the Respondents willingly submitted themselves to the jurisdiction of the Palace Court and cannot resile on the Judgment delivered.
The Judgment of the Palace Court is binding on all the parties. See AWONUSI VS AWONUSI (2006) LPELR 11611 where OKORO JCA (as he then was held).
“My view is that the Respondents established and proved a valid and binding customary arbitration which is binding on the parties. The laws of this country recognizes arbitration at customary law and where the essential ingredients were already set out in the case of EGESIMBA VS ONUZURIKE (Supra) are present in any customary arbitration, it is held to be valid it is binding on the parties and creates an estopped. I think I need not say more.”
See also OJIBAH VS OJIBAH (1991) LPELR 2374, ONYENGE VS EBERE (2004) LPELR 2741, ADEBANJO VS ADESANYA (2018) LPELR 46661 NNADI VS ODIKA (2017) LPELR 43448 ASSAMPONG VS KWAKU (1932) 1 WACA PG. 122, NJOKU VS EKEOCHA (1972) 2 ECLR PG. 199, UDOSEN VS NDE (2019) LPELR 47157, ONWU VS NKA (1996) 7 SCNJ PG. 240.
As it is, the Respondents have instituted 2 cases in the Palace Court against the Appellants and they had lost. The Respondents should have been estopped from instituting this case that culminated in this appeal in the first place.
It is correct to say here that there were many families in occupation on the disputed land i.e Aseusi. The Appellants in their statement of defence and in their evidence viva voce stated that they were on the land before the title of Ewi of Ado-Ekiti was inaugurated whilst the Respondent claimed that the land Aseusi was granted to them by the first Ewi of Ado-Ekiti. This in turn means that the occupation of the Respondents was later in time to that of the Appellants.
Exhibit “T, U, & C” all were against the Respondents in this appeal. A party who relies on a document in proof of his title like the Respondents tendered Exhibit “C” which was still against them.ADELAJA VS ALADE (1999) 6 NWLR PT. 608 PG. 544, JIAZA VS BAMGBOSE (1999) 7 NWLR PT. 610 PG. 182.
The Respondents started proving their case by traditional history which they could not succeed in doing. They cannot turn around to rely on acts of ownership and possession to prove title to the land. As a matter of course, there would be nothing on which to found acts of ownerships. In such a case, the Court is obliged to dismiss the claimants claim OYADARE VS KEJI (2005) 7 NWLR PT. 952 PG. 571.
In pleading traditional history in a claim for declaration of title, the Plaintiff is expected to narrate the genealogical tree from the original owner, the ancestor in generations appurtenant to him, down the line to the Plaintiff. In other words, he must prove who founded the land, in what manner the land was founded and the circumstances leading to it, and the successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained. ODI VS IYALA (2004) 8 NWLR PT. 875 PG. 283, EWO VS ANI (2004) 3 NWLR PT. 861 PG. 610.
Parties in this appeal relied on traditional history in proof of their case. Therefore, in determining which of the parties traditional history is more probable, the trial Court must make references to the facts of use and possession in recent years as established by evidence and by seeing which of two competing history is more probable. OKOKO VS DAKOLO (2006) 14 NWLR PT. 1000 PG. 401.
Exhibit “T, U, & C” were tendered in Court and none of them favoured the Respondents. The decision of the Palace Court is at the grass roots. They visited the locus in quo at various times and maintained that the Respondents were not the owners of the land in dispute i.e. Aseusi. The survey plan tendered as Exhibit “A” did not in any way help the Respondents. The many letters or documents written in Yoruba and translated or transcribed into English did not meet the standard of the provisions of law that such documents written in vernacular ought to be interpreted by an interpreter or someone so conversant with the language. In this appeal Exhibits “J & J1, K & K1, H & H1 were supposedly interpreted from Yoruba to English by one Chief Simoh Olufemi Falaye a member of the family of the Respondents, such evidence I dare say must be taken with a pinch of salt. Having been interpreted by a member of the Respondents family it leaves a lot to be desired.
These letters Exhibit “J, K, & H” did not relate to anyone easily identified as a tenant to the Respondents. The writer is identifiable but the addresses is not identifiable. Therefore, these letters does not help the Respondents to prove its case against the Appellants.
In an action for declaration of title to land, the onus is on the Plaintiff to establish his claims upon the strength of his own case and not upon the weakness of the case of the defendant. The Plaintiff must therefore, satisfy the Court that upon his pleading and evidence adduced by him, he is entitled to the declaration sought GBADAMOSI VS DAIRO (2007) 3 NWLR PT. 1012 PG. 282, DADA VS DOSUNMU (2006) 18 NWLR PT.1010 PG.134, ONISAODU VS ELEWUJU (2006) 13 NWLR PT. 998 PG. 517, AJIBOYE VS ISHOLA (2006) 13 NWLR PT 998, PG. 628. Where, the Plaintiff failed to prove his root of title relied on, the proper order to make in such circumstances is to dismiss the Plaintiff’s case. NDUKUBA VS IZUNDU (2007) 1 NWLR PT. 1016 PG. 432.
The Respondents in this case did not prove their case in the Lower Court to entitle them to a declaration of title they sought.
This issue is therefore resolved against the Respondents in favour of the Appellants.
ISSUE 2 & 3
A party on a parcel of land who claims ownership of the land is a trespasser if he lacks valid title to the land. EGBUTA VS ONUNA (2007) 10 NWLR PT. 1042 PG. 298.
The Respondents could not prove how the Appellants trespassed on the land. Moreover, trespass is a civil wrong against possession in that it is an unlawful and unauthorized invasion of the right of the party in possession who can maintain an action in trespass against the whole world except the owner UBA PLC VS SAMBA PETROLEUM CO. LTD (2002) 16 NWLR PT. 793 PG. 361. Since the Respondents could not prove trespass, there would not be any question of damages.
In sum the Respondents in this appeal did not prove their case in the Lower Court.
This appeal is meritorious. It is allowed. The Judgment of Lower Court is hereby set aside.
Cost to the Appellant is assessed at N200,000.00.
The Appellants in this case did not counter claim for anything in the Lower Court and as such no orders would be made.
PAUL OBI ELECHI, J.C.A.: I agree.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the lead judgment delivered by my learned brother. U.I. Ndukwe-Anyanwu JCA. I agree with the reasoning and conclusion reached therein.
I therefore also find the appeal meritorious and same is hereby allowed. The decision of the Court below is hereby set aside and I make no order as to costs.
Appearances:
…For Appellant(s)
…For Respondent(s)
