OSUADE ADEYINKA AKINBADE & ANOR v. AYOADE BABATUNDE & ORS(2017)

OSUADE ADEYINKA AKINBADE & ANOR v. AYOADE BABATUNDE & ORS

In The Supreme Court of Nigeria

On Friday, the 15th day of December, 2017

SC.11/2006

RATIO

WHETHER A PRELIMINARY OBJECTION CAN ONLY BE RAISED AGAINST THE COMPETENCE OF THE APPEAL AND NOT SOME OF THE GROUNDS IN THE APPEAL

A preliminary objection, it is settled, is only raised against the competence of the appeal rather than some grounds in the appeal. See Odunukwe v. Ofomata & Anor (2010) 12 SCM 117 at 127 and Yaro v. Arewa Construction Ltd (2008) ALL FWLR (Pt. 400) 603. PER MUSA DATTIJO MUHAMMAD, J.S.C.

POSITION OF THE LAW ON THE FORMULATION OF GROUNDS OF APPEAL

Secondly, I agree with learned appellants’ counsel that the grounds of the appeal as well as the particulars in their support, on perusal, do not manifest the defects the respondents ascribe to them. Most importantly, the respondents are not left in any doubt as to what complaints the grounds circumscribe. To this end learned appellants’ counsel must be obliged in his reliance on the decisions of this Court, in particular, the dicta of Ayoola, JSC in Aderounmu v. Olowu (2000) 4 NWLR (Pt. 552) 253 at 255 thus:- The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality; whereby the Court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this Court and the Court of Appeal that the appellant shall file a Notice of Appeal, which shall set forth concisely the grounds which he intends to rely upon on the appeal; and that such grounds should not be vague or general in terms and must disclose a reasonable Ground of Appeal, is to give sufficient notice and information, to the other side of the precise nature of the complaint of the appellant and, consequently, of the issues that are likely to raise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form.” (Underlining supplied for emphasis). See also Oloruntoba-Oju v. Abdulraheem (2009) 13 NWLR (Pt. 1157) 83. PER MUSA DATTIJO MUHAMMAD, J.S.C.

WHETHER EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE TO THE EVIDENCE LED IN A MATTER IS THE PRIMARY DUTY OF THE TRIAL COURT

In this wise one agrees more particularly with learned respondents’ counsel that the task of evaluation of evidence and the ascription of value to the evidence led in a matter is the primary duty of the trial Court that had the opportunity of seeing, hearing and assessing the witnesses who testified in proof or contest of the matter. See Adeniji v. Adeniji (1972) 4 SC 10, Woluchem v. Gudi (1981) 5 SC 291 and Congress for Progressive Change v. I.N.E.C. & Ors (2011) LPELR-8257 (SC). PER MUSA DATTIJO MUHAMMAD, J.S.C.

EFFECT OF EVIDENCE IN RESPECT OF UNPLEADED FACTS

It is trite as well that for the evidence proffered in a case to be worthy of being evaluated, parties must have joined issues on the facts sought to be established by such evidence in their pleadings. Evidence in respect of unpleaded facts, facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. See Morohunfola v. Kwara Tech. (1990) NWLR (Pt. 145) 506 and Ademeso v. Okoro (2005) 14 NWLR (Pt. 945) 308. PER MUSA DATTIJO MUHAMMAD, J.S.C.

ON WHAT BASIS ARE SOUGHT DECLARATORY RELIEFS OBTAINED

Both the appellants and the respondents as plaintiffs and defendants respectively, by virtue of their claim and counter-claim at the trial Court, asserted entitlement to the declaration of the Court as being the rightful owners of the land in dispute. The declaratory reliefs they sought are never granted as a matter of course. The reliefs are obtained on the basis of very strong and cogent case contained in the claimants pleadings and evidence led in support. It is for the plaintiff to satisfy the Court that under all the circumstances of the case he is fully entitled to the discretionary reliefs he urges in his favour. The claimant succeeds on the strength of his case alone and never by virtue of the weakness of the defendants’ case. See Egbunike & Anor v. Muonweoku (1961) NSCC 40, Antra Industry Nigeria Ltd v. Nigerian Bank for Commerce and Industries (1983) 4 NWLR (Pt. 545) 381 and Senator Iyiola Omisore & Anor v. Ogheni Rauf Adesoji Aregbesola & Ors (2015) LPELR-2480 (SC). PER MUSA DATTIJO MUHAMMAD, J.S.C.

CONSEQUENCE OF THE FAILURE TO LEAD EVIDENCE IN PROOF OF PLEADINGS

The principle remains that mere averments without evidence in proof of pleaded facts go to no issue. The lower Court, therefore, is right in its finding that the plaintiffs/appellants who have failed to lead evidence in proof of their pleadings on the source of their title to the land in dispute, on the authorities, must be deemed to have abandoned their claim. The claim being for a declaratory relief succeeds not even on the admission of the respondents but on the strength of the plaintiffs/appellants’ case. It is indeed unthinkable to assign title to them as did the trial Court which perverse judgment the lower Court, given the evidence on record, rightly reversed. See Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241, Odulaja v. Haddad C. Ltd (2010) ALL FWLR (Pt. 527) 690. PER MUSA DATTIJO MUHAMMAD, J.S.C.

BURDEN OF PROOF ON THE PLAINTIFF WHERE HE CLAIMS THAT THE DEFENDANT ARE CUSTOMARY TENANTS ON THE LAND IN DISPUTE

It is settled law that the appellants herein having admitted the fact that it was Akinbade who granted the land in dispute to the ancestors of the respondents, it remains their burden to prove that title had not devolved on the respondents for whatever reasons. The only reason they hinged their claim on, that respondents were customary tenants on the land in dispute, has not been established. Having failed to discharge this burden, the proper judgment is to find for the respondents who, as defendants and counter claimants, had established, by their traditional history, the fact of inheriting the land and being in possession of same. See Kodinlinye v. Odu (1935) 2 WACA 336, Bello v. Eweka (1981) 1 SC 101 at 102 and David Itauma v. Friday Jackson Akpe-Ime (2000) LPELR-1557 (SC). PER MUSA DATTIJO MUHAMMAD, J.S.C.

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

Between

OSUADE ADEYINKA AKINBADE
2. DAUDA ADEYINKA AKINBADE
(Substituted by Order of Supreme Court dated 7th July, 2008)
(For themselves and on behalf of other descendants of Akinbade Family) Appellant(s)

AND

AYOADE BABATUNDE
2. LANIYI OKUNOLA
3. OYEDIRAN IGE
(For themselves and on behalf of Ogunsile & Ige)
4. DR. Y. O. ASHAMU
5. DR. M. F. PETERS
6. MISS J. O. ASHAMU
7. MISS T. E. ASHAMU
(Substituted in place of Chief E. O. Ashamu deceased)
8. DR. MAJEKODUNMI
9. GANIYU BELLO
10. OYENIKE OGUNSOLA Respondent(s)

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Ibadan Division, hereinafter referred to as the lower Court, allowing the appeal of the respondents’ herein who were defendants at the Oyo State High Court. The latter Court will hereinafter be referred as the trial Court.

A brief summary of the facts that brought about the appeal is given below.
The appellants as plaintiffs at the trial Court claimed against the respondents, thereat as defendants, for:-
“(a) A declaration that the Plaintiffs who are the descendants of Akinbade are the only persons entitled to the issue of Certificate of Occupancy to all that piece or parcel of farmland situate, lying and being at Akinbade farm, Idi Mango along Idi Iroko Road, Ibadan which is more particularly delineated on Plan No. EFUN/12/OY/88 drawn by Debo Adedeji Licensed Surveyor and is thereon edged RED.
(b) Declaration that the 1st, 2nd and 3rd Defendants as tenants of the Plaintiff have forfeited their rights to remain on the land as a result of purported sale of the land to 4th to 7th Defendants and

other Purchasers without the knowledge and consent of the Plaintiffs who are their overlords.
(c) N10,000.00 general damages against the 4th to 7th Defendants for acts of continuing trespass committed on the said land between 1986 and up to date.
(d) Perpetual injunction restraining all the Defendants their servants, agents or anybody claiming through them from committing any further acts of trespass.”

On their part, the respondents, as defendants, counter-claimed against the plaintiffs/appellants as follows:-
“(a) A declaration that the 1st, 2nd and 3rd Defendants are true and natural descendants of Akinbade and are therefore entitled to Certificate of Statutory Right of Occupancy in respect of all that land lying and situate at Idi Mango, Idi Iroko Road, Ibadan which is more particularly delineated on Plan Number AD/58/59 drawn by A. Adeoti Licensed Surveyor on 19/5/89 and is thereon edged “RED” excluding the portion already sold.
(b) Declaration that the sale of portion of land verged “YELLOW” on Plan Number AD/58/59 dated 19/5/89 by the 1st, 2nd and 3rd Defendants to the Late E. O. Ashamu is legal, valid and lawful and he is

therefore the only person entitled to the issue of Certificate of Statutory Right of Occupancy in respect of the said portion of land.
(c) Declaration that the sale of the portion of land marked “1” by the 1st, 2nd and 3rd Defendants to the 5th and 6th Defendants respectively is legal, valid and lawful and are therefore the only persons entitled to the issue of Certificate of Statutory Right of Occupancy in respect of the said portions of land.
(d) N10,000.00 (Ten thousand Naira) as general damages for the continuous trespass of the plaintiffs on the land in dispute.
(e) An order of perpetual injunction restraining the Plaintiffs their agents, servants, privies or however from committing any further acts of trespass on the said land.”

Pleadings were ordered, filed and exchanged. Both sides assert their entitlement to the land in dispute from a common owner, Akinbade, by settlement. Both sides claim ownership through inheritance from Akinbade whose direct descendants the two contend to be.

The trial Court found the appellants entitled to the statutory right of occupancy in respect of the land in dispute, granted same and dismissed

the defendants/respondents counter-claim. Aggrieved by the trial Courts decision, the defendants/respondents appealed to the lower Court. On allowing the appeal the Court reversed the trial Court’s decision, found the defendant’s counter claim made out and granted same.

Dissatisfied with the lower Court’s decision, the appellants have appealed to this Court on a notice containing eight grounds seeking the determination of their appeal on the basis of the following four issues:-
“(i) Whether the Lower Court was right in disturbing the findings of the Trial Court on matters involving traditional history and thereby reversing the judgment of the Trial Court on that basis – Grounds 1 and 2 of the grounds of appeal.
(ii) Whether the Lower Court was right in failing to re-evaluate the evidence on record when dissatisfied with the findings of the Trial Court before reversing the judgment of the Trial Court. This issue covers grounds 4 and 5 of the grounds of appeal.
(iii) Whether the lower Court was right in suo motu formulating issue totally different from the issues canvassed by the parties and deciding the appeal on its sole issues.

This covers grounds 3, 7 and 8 of the grounds of appeal.
(iv) Whether the Lower Court was right in granting the counterclaim of the Respondents which was never proved as independent action. This issue covers ground 6 of the grounds of appeal.”

Notwithstanding their contention that the 3rd, 4th, 5th, and 7th grounds of the appeal and the issues distilled from the grounds are incompetent, the respondents, in case the objection is overruled, have formulated and urged that the appeal be determined on the basis of the following four issues:-
“(i) Whether the lower Court rightly disturbed the findings of the trial Court. Grounds 1 and 2.
(ii) Was the lower Court justified in re-evaluating the evidence adduced at the trial Court Ground 4.
(iii) Whether the lower Court was right in identifying the key issue for trial as that of lack of establishment and proof by the Appellants of the alleged customary tenancy as opposed to the Appellants’ position to the effect that the life issue is the ascertainment of who as between the Appellants and 1st-3rd Respondents are true descendants of AKINBADE. Grounds 3, 5, 7 and 8.
(iv) Whether the

counter-claim of the Respondents was rightly granted by the lower Court. Ground 6.”

The respondents’ preliminary objection to the competence of some grounds and or the entire appeal must be determined first.

Learned respondents’ counsel have through paragraphs 6 to 7.03 at pages 10-21 of their brief challenged the competence of grounds 3, 4, 5 and 8 of the instant notice of appeal. The grounds, it is argued, are repetitive of each other and, in particular, issue 3 the appellants assert stems from ground 7 does not. Referring to the grounds as reflected at pages 393-398 of the record of appeal, learned counsel submits that the four grounds dwell on a common grouse which the appellants urge this Court to address. The recurring complaint in all the grounds, it is contended, lies in the lower Courts error in its misconstruing the live issue the appellants, as plaintiff at the trial Court, wanted addressed. The pivotal theme of appellants claim, it is submitted, remains who between the contending parties are true descendants of Akinbade which facts are determinable from the nature of the grant to the respondents. It is wrong to

repeat this error, it is submitted, in the four grounds of appeal in clear breach of Order 8 Rule 2(4) of the Supreme Court Rules. Furthermore, not only are the particulars of the grounds of appeal at variance with the grounds they are meant to support, they are either argumentative and/or seek to expand the scope of the appellants principal complaints. Relying on Shanu v. Afribank (Nig.) Plc (2002) 17 NWLR (Pt. 765) 185 at 210, Briggs v. C.L.O.R.S.N. (2005) 12 NWLR (Pt. 938) 59 at 90, Amuda v. Adelodun (1994) 8 NWLR (Pt. 360) 23 at 31 and Abdullahi v. Oba (1998) 6 NWLR (Pt. 554) 420 at 428, learned counsel urges that the grounds, nay the appeal, be struck out.

On being served the respondents’ brief, the appellants filed their reply brief in response particularly to the challenge raised by the respondents against the specified grounds of appeal. Setting out grounds 3, 5, 7 and 8 of their grounds in the reply brief, learned appellants’ counsel argues, in reference thereto, that the essence of a ground of appeal and its particulars as held by this Court, is to acquaint the respondents with the issue involved in the appeal. Once a ground of appeal does that, it is

further submitted, it cannot be discountenanced. Ground 3 from which the appellants distill their 3rd issue, it is submitted, challenges the lower Court’s finding on the issue that customary tenancy of whatever form must have incidence of payment of tribute. The complaint is clear and leaves the respondents in no doubt as to what the appellants seek of the Court therefrom. Again, submits learned counsel, ground 5 is a complaint against the lower Court’s finding that the only issue relevant to the determination of the appeal before it is the issue of the status of the grant made to the respondents. The ground is directed at the finding of the lower Court at page 384 of the record sustaining respondents’ appeal by the lower Court and providing the basis of for the grant of their counter-claim. The particulars of the ground, it is further submitted, makes appellants’ complaint against the finding of the Court more vivid and so relevant to the ground.

All the other grounds of appeal, 7 and 8, challenged by the respondents, it is contended, are equally free from the defects ascribed to them. They are all clear as to what grudge they contain and on that

alone the grounds, on the authorities, learned appellants’ counsel submits, must survive. A careful perusal of the particular of the grounds, it is submitted, reveals that none can be adjudged argumentative or at variance with the grounds. In any event, learned counsel concludes, where the particulars of a ground of appeal are defective, it is only the particulars that are struck out leaving the grounds of appeal themselves where same are capable of subsisting on themselves alone. Learned counsel relies on Honika Sawmill Nig. Ltd v. Mary Okejie Hoff (1994) 2 NWLR (Pt. 326) 252, Sanuyanna v. A.I.B. (2007) 4 NWLR (Pt. 703) 355 and Oloruntoba-Oju & Ors v. The University of Ilorin (2009) 7 SCM 118 138 at 139, and urges that respondents preliminary objection that does not go to the root of the appeal be discountenanced.

It is very glaring that the objection raised by the respondents is only levied against some and not the entire grounds in the notice of appeal. By their own showing, the respondents appear to concede the fact that the appeal is sustainable on the basis of those other grounds against which no objection has been raised. A preliminary

objection, it is settled, is only raised against the competence of the appeal rather than some grounds in the appeal. See Odunukwe v. Ofomata & Anor (2010) 12 SCM 117 at 127 and Yaro v. Arewa Construction Ltd (2008) ALL FWLR (Pt. 400) 603.

appellant shall file a Notice of Appeal, which shall set forth concisely the grounds which he intends to rely upon on the appeal; and that such grounds should not be vague or general in terms and must disclose a reasonable Ground of Appeal, is to give sufficient notice and information, to the other side of the precise nature of the complaint of the appellant and, consequently, of the issues that are likely to raise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form.” (Underlining supplied for emphasis). See also Oloruntoba-Oju v. Abdulraheem (2009) 13 NWLR (Pt. 1157) 83.

Drawing from the principles enunciated in the foregoing, the preliminary objection the respondents purport to raise against the appeal is accordingly hereby discountenanced. Now let us consider the appeal.

Arguing the appeal under all the issues, learned appellants’ counsel submits that both sides claim entitlement to the land in dispute from Akinbade their common ancestor. The trial Court that had the advantage of seeing the witnesses testify for and against the

respective claim of each side, it is further submitted, correctly evaluated the evidence on record and found the appellant’s case more plausible. The appellate Court, learned counsel submits, not being placed in as much a vantage position as the trial Court, is unable to reasonably make such findings of facts. He relies on Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 54, NOR v. Tackan (1998) 4 NWLR (Pt. 544) 130 at 141, Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290 at 308 and Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79) 703.

Particularly under their 2nd issue, learned appellants’ counsel submits that though the lower Court has the duty to re-evaluate the evidence on record if it disagrees with the trial Court’s evaluation, the Court’s power of re-evaluation is not a blank cheque. It must be done, argues learned counsel, within the purview of the principles enunciated in Mogaji v. Odofin (1978) 4 SC 91 at 94. Appellants’ strongest wicket, submits learned counsel, lies in their pleadings and evidence that their ancestors had leased to the respondents’ ancestors the land in dispute for farming purposes only. The disposal of the land by the respondents to others

instead of farming on it, learned counsel submits, negates the essence of the tenancy between the appellants who are the landlords and the respondents being the tenants. Relying on ISIBA v. Hanson (1968) NMLR 76, Bassil v. Fajebe (2001) 11 NWLR (Pt. 725) 592, Haruna v. UNIAGRIC MAKURDI (2005) 3 NWLR (Pt. 912) 233 at 244 and Edet v. Eyo (1999) 6 NWLR (Pt. 605) 21. Learned appellants counsel insists the lower Court is wrong, to have reversed the trial Court’s judgment without specifying to what extent the judgment is perverse.

On the 3rd issue, learned appellants’ counsel submits that neither of the parties at the lower Court formulated issues justifying the lower Court’s finding at page 384 of the record that appellants’ case required the ascertainment of the status of the grant of the land made to the respondents through proof of the customary tenancy the appellants as plaintiffs asserted. Not surprisingly, submits learned appellants counsel, the lower Court proceeded to determine the entire appeal in the con of its warped summary of the plaintiffs/appellants’ case. The lower Court’s failure to dispassionately and evenly define, consider and

determine the controversy between the parties, it is further submitted, renders the Court’s judgment untenable. Learned counsel relies inter-alia on Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637, Ogbu v. Ani (1994) 7 NWLR (Pt. 355) 128, Odua Investments v. Talabi (1991) 1 NWLR (Pt. 170) 761 at 779 and Def Lam & Co. Ltd v. Osun State Government (2006) 2 NWLR (Pt. 964) 211 and prays that the issue be resolved against the respondents and the appeal allowed.

At paragraph 7.02 of the appellants brief the arguments the appellants advanced under their 4th issue is clearly delineated. The paragraph reads:-
“The appellants adopt the arguments canvassed in respect of the previous issues in this appeal.”

Not surprisingly, what comes subsequent to the paragraph is a re-harsh of the arguments advanced under the appellants’ first three issues. It serves no useful purpose, therefore, to restate the very arguments already availed us by virtue of the first three issues.

Responding to appellants’ arguments in the appeal, learned respondents’ counsel submits that the respondents had appealed against the trial Court’s findings to the lower Court

which findings the latter found perverse. The Court in such circumstances, learned counsel contends, is not only enjoined but duty bound to set aside the trial Court’s findings that had occasioned miscarriage of justice. The decisions of this Court inter-alia in Osigwe v. PSPLS Management Consortium Ltd (2009) 3 NWLR (Pt. 1128) 378, Kazeem v. Mosaku (2007) 17 NWLR (1064) 332, Hillary Farms Ltd v. M/V “Mahtra” (2007) 14 NWLR (1054) 210 and Jack v. Whyte (2001) 6 NWLR (Pt. 709) 266, it is submitted, support the lower Court’s decision in the determination of the issues raised by parties before it.

Further arguing the appeal, learned respondents’ counsel submits that the foundation of appellants’ claim at the trial Court was that respondents were their customary tenants and that the latter had paid the former tribute by virtue of the tenancy. The key issue, therefore, contends learned counsel, is whether or not the respondents, whose possession of the land in dispute has not been controverted by the appellants, are holding same by virtue of the customary tenancy between the two. Given not only appellants pleadings but the evidence of their witnesses,

particularly their 1st witness at pages 223-227 of the record of appeal, it does not lie in appellants mouth, it is submitted to insist that the lower Court’s findings that are contrary to those of the trial Court should be set-aside. Learned counsel relies on Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578, Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 350 at 375 and Morenikeji v. Adegbosin (2003) 8 NWLR (Pt. 823) 613 at 643, among others, in urging that the issue be resolved against the appellants.

Further arguing the appeal, learned respondents, counsel submits that the lower Court is empowered to re-evaluate the evidence led by the parties if the trial Court either failed to evaluate the evidence or did so wrongly. Evaluation of evidence, it is further argued, is not the exclusive preserve of the trial Court. In the case at hand where the evaluation of evidence undertaken by the lower Court does not involve the credibility of the witnesses and the subsequent findings of the Court is informed by the pleadings and evidence on record, the findings being questioned, it is submitted, are unassailable. By the evidence, it is contended, a presumption of

ownership had enured in favour of the respondents who are in possession of the land in dispute. The appellants having failed to rebut the presumption, the lower Court’s holding on the issue, it is submitted, cannot be faulted. Learned counsel supports his submissions with the cases of Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 160-161, Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427 and Egbuta v. Onuna (2007) 10 NWLR (Pt. 1042) 298 at 310 and asks that the issue be resolved also against the appellants.

Under the 3rd issue, learned respondents’ counsel submits that appellants’ complaint against the correctness of the lower Courts identification of the key issue for trial is unsustainable as well. The issue, the customary tenancy the appellants plead exist between them and the respondents as opposed to the latter’s position as to who between the two are the true descendants of Akinbade, are facts contained in parties pleadings. Both parties, it is further submitted, have led evidence to establish these facts. What the lower Court did and correctly too, learned respondents’ counsel submits, was to examine the pleadings and the evidence led and

to conclude within the issue the lower Court distilled and preferred, who among the appellants as plaintiffs and the respondents as counter-claimants made out their case. The lower Court, it is further submitted, is allowed to formulate its issue and resolve same if the justice of the case, on the basis of the facts on which the appeal rests, is best served. In the case at hand, it is contended, where the lower Court having fully evaluated and found the appellants case not proved but respondents counter-claim made out, the law expects the Court to find for the respondents. Appellants’ blames, against the lower Court’s judgment, learned respondents’ counsel contends, remain unjustifiable. Learned counsel refers to Adejugbe v. Ologunja (2004) 6 NWLR (Pt. 868) 46, Union Bank of Nigeria Ltd v. Ozigi (1994) 3 NWLR (Pt. 333) 385 at 401, Ejowhomu v. Edok-Eter Ltd (1986) 5 NWLR (Pt. 39) 1 and Ukaegbu v. Nwololo (2009) 3 NWLR (Pt. 1127) 194 at 222 as basis for urging the resolution of the issue as well as the dismissal of the appeal.

It is my firm and considered view that the real issue the appeal raises centres squarely on the role of the lower Court in the

evaluation of evidence it had undertaken. Certainly, the issue does not require that much splitting and the tortuous arguments unnecessarily pursued by the appellants by virtue of their multiple issues. The issue which resolution shall inform the determination of the appeal remains, therefore, whether the lower Court is right in setting aside the trial Court’s finding in favour of the appellants and, instead, finding for the respondents.

Counsel have alluded to a number of legal principles in urging that they are necessary guide in the determination of the appeal. In this wise one agrees more particularly with learned respondents counsel that the task of evaluation of evidence and the ascription of value to the evidence led in a matter is the primary duty of the trial Court that had the opportunity of seeing, hearing and assessing the witnesses who testified in proof or contest of the matter. See Adeniji v. Adeniji (1972) 4 SC 10, Woluchem v. Gudi (1981) 5 SC 291 and Congress for Progressive Change v. I.N.E.C. & Ors (2011) LPELR-8257 (SC).

It is trite as well that for the evidence proffered in a case to be worthy of being evaluated,

parties must have joined issues on the facts sought to be established by such evidence in their pleadings. Evidence in respect of unpleaded facts, facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. See Morohunfola v. Kwara Tech. (1990) NWLR (Pt. 145) 506 and Ademeso v. Okoro (2005) 14 NWLR (Pt. 945) 308.

The law is settled, it must be further conceded, that where the trial Court that had the advantage of seeing, hearing and assessing the witnesses failed and or refused to draw the benefit of the advantage and wrongly evaluated and/or entirely declined to evaluate the evidence, the appellate Court must intervene to correctly evaluate the evidence and arrive at the just decision, the evidence as properly evaluated, warrants. Thus in its primary role of reviewing a judgment on appeal in a civil case, where the trial Court’s finding or non finding of facts is questioned, such as is done in the case at hand, the appellate Court must: avail itself the evidence before the trial Court; know whether the evidence was accepted or rejected legally; know whether the evidence of each side was properly

assessed and given its appropriate value and put on an imaginary scale side by side with the evidence of the other side before preferring on the basis of its weight, the evidence of the particular side. See Abisi v. Ekwealor (1993) NWLR (Pt. 302) 643, Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 170) 325 at 339 and Mogaji v. Odofin (1978) 4 SC 1.

Nigerian Bank for Commerce and Industries (1983) 4 NWLR (Pt. 545) 381 and Senator Iyiola Omisore & Anor v. Ogheni Rauf Adesoji Aregbesola & Ors (2015) LPELR-2480 (SC).Lastly, the principle must not be forgotten too that a counter-claim is a cross action and where the plaintiff fails in proving his claim the defendant, on proving his counter-claim, may succeed. Whether in respect of the claim or the counter-claim, therefore, the plaintiff or the defendant as the case may be, must discharge the burden of establishing his entitlement to the reliefs he claims. See Alhaji Goni Kyari v. Alhaji Chiroma Alkali & Ors (2001) LPELR-1728 (SC) and Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141.
In deliberating and resolving the issue the appeal raises, it is necessary to know not only the case each party herein presented at the trial Court, but the decisions of the two Courts below thereon. Plaintiffs/appellants’ case are essentially contained in paragraphs 6, 8, 9, 15, 16, 17, 30, 32 and 33b of their amended statement of claim filed on 7/3/94 hereinder reproduced for ease of reference:-
“6. The piece or parcel of land in dispute is

situated at Idi Mango along Idi Iroko Road, Ibadan Oyo State of Nigeria and the same is particularly delineated on Plan No. EFUN/12/OY/88 drawn by Debo Adedeji Licensed Surveyor and is thereon edged RED which plan is already attached to the original Statement of Claim.
8. That later in time his junior brother called IGE (the ancestor of the 3rd Defendant who was then a Youngman came to join Akinbade in Ibadan and he Akinbade allotted him a portion of his land in the Akinbade compound to build his house.
9. Ogunsile lived in Akinbade compound till his death. Later in 1938 one Adefi grandson of Ogunsile on request was allotted a portion of land in Akinbade compound to build a house by Adeyinka grandson of Akinbade.
15. That very few, if any of the kola nut trees and orange trees still stand on the farm land as a result of the acts of trespass of the Defendants.
16. That when the Plaintiffs do not engage in active farming, one Adisa was appointed as care-taker by the plaintiffs’ family and he Adisa used to give the plaintiffs family a sum of N120.00 annually as crops yields.
17. That Akinbade granted a portion of his farm land to his

junior brother IGE and the Portion so granted for farming purposes only is marked “H” and edged GREEN and YELLOW on Plan No. EFUN/12/OY/88 aforesaid. The 3rd Defendant who represents IGE’s descendants still holds on to this portion.
30. That at all times material the 1st, 2nd and 3rd Defendants have no right to sell any part of the land in dispute including the portions marked “G” and “H” on which they have only farming rights.
32. That the Portion of land in dispute allotted to Ogunsile the ancestor of the 1st and 2nd Defendants and Ige the ancestor of the 3rd Defendant was for farming purposes only and could not be sold, transferred or alienated to any other person without the consent or knowledge of the Plaintiffs who are the descendants of Akinbade family.
33(b). Which is the relevant relief states:
Declaration that the 1st, 2nd and 3rd Defendants as tenants of the Plaintiffs have forfeited their right to remain on the said land as a result of purported sales of the land to 4th to 10th Defendants and other purchasers without the knowledge and consent of the Plaintiffs who are their overlords.”

The substance of the

defendants/respondents case on the other hand is contained inter-alia in paragraphs 3, 4, 5, 6, 10, 16, 17, 23, 24 and 31 of their statement of defence and counter-claim hereinunder reproduced for their relevance:-
“3. With reference to paragraph 2 of the plaintiffs statement of claim, the 1st, 2nd and 3rd defendants over that the plaintiffs have never at any time up till date been members of head of Akinbade family. On the contrary the plaintiffs are descendants of one Lasonkan whose descendants have always lived and died at Lapite and have no link whatsoever with the Akinbade family.
4. The 1st and 2nd defendants admit paragraph 3 of the statement of claim only to the extent that they are members of the Ogunsile family. The 1st and 2nd defendants aver that Ogunsile was the grandson of Akinbade and as such they are rightful descendants of Akinbade.
5. The 3rd defendants admits paragraph 3 of the statement of claim only to the extent that it describes him as a descendant of Ige. The 3rd defendant avers that Ige was not a brother to Akinbade but was in fact one of Akinbade’s 3 sons.
6. The 1st, 2nd and 3rd defendants aver that they are the

true descendants of Akinbade. Akinbade begat 3 children namely Olawusi, Ige and Winkemi.
10. The 1st, 2nd, and 3rd defendants aver that the plaintiffs are the descendants of the Lasonkan who are not in any way related to the Akinbade family. Lasonkan begat 2 children namely Akinyode and Adegbemi.
16. With reference to paragraph 8 of the statement of claim, the 1st, 2nd and 3rd defendants aver that Ige was the son of Akinbade. Ige had always lived with his father until he (Ige) decided to leave his father’s (Akinbade) compound due to persistent fire outbreaks and on instruction of the oracle to set up a compound of its own now known as Ile Ige at Odinjo; Ibadan.
17. With reference to paragraph 9 of the plaintiffs statement of claim, the 1st, 2nd and 3rd defendants aver that Ogunsile the grandson of Akinbade lived in his compound until he (Ogunsile) died. Ogunsile had a brother called Adenle. The two brothers were sons of Olawusi who was one of the 3 sons of Akinbade. Adenle had a son called Adefi.
23. The 1st, 2nd, and 3rd defendants admit paragraph 14 of the statement of claim only to the extent that on the death of Akinbade the disputed

land and family house were inherited by his successive descendants including the 1st, 2nd and 3rd defendants. The plaintiffs have never at any time and can never be members of Akinbade family and can therefore not inherit any land or Property of the Akinbade family.
24. In response to paragraph 15 of the statement of claim, the 1st, 2nd and 3rd defendants aver that being the rightful owners of the land in dispute, they cannot trespass on their own property as averred therein.
31. With reference to paragraph 21 of the statement of claim, the 1st, 2nd and 3rd defendants aver that they have been in undisturbed possession of the land in dispute having inherited same as descendants of Akinbade and the plaintiffs have never at any time being in possession of the said land.”

From the foregoing state of parties’ pleadings, the plaintiffs/appellants though conceding the fact that the land in dispute is occupied by the 1st-3rd defendants/respondents and under their exclusive possession, they assert that same was granted the latter’s ancestors by Akinbade pursuant to a customary tenancy agreement the overriding term of which required the tenants to use

the land only for farming purposes. The sale of the very land by the 1st-3rd defendants to others including the 4th defendants/respondents without their consent, the plaintiffs/respondents further assert, determines the tenancy.

For the defendants/respondents, their exclusive possession of the land in dispute as admitted by the plaintiffs/appellants does not stem from any customary tenancy between the two. Instead, they claim, it arises from the devolution of their absolute title in the land in dispute from their ancestors Olawusi and Ige who had inherited from their father and owner of the land by settlement.

The lower Court at page 382 of the record of appeal correctly identified the controversy between the parties thus:-
“The key issue therefore is, whether or not the Defendants holding on the land in dispute was under and by virtue of a customary tenancy.”

In reviewing the trial Court’s finding in the light of the foregoing issue, which resolution it adjudged crucial to the determination of the controversy between the parties, the lower Court at page 385 of the record asked and answered the very germane question as follows:-

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“The question is, did the plaintiffs prove the alleged customary tenancy to rebut the presumption of the Defendants ownership of the land in their possession On this question; it is settled that the main incident of a customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity subject to good behavior. See EJEANALONYE v. OMABUIKE (1974) 4 ECSLR 435 at 438; LASISI v. TUBI (1974) 1 ALL NLR 438 at 441-442. On the printed record there is no evidence of the alleged customary tenancy that has entitled the 1st-3rd Defendants possession of the land in dispute for about 150 years. There was no evidence of any tribute in whatever form paid by the 1st3rd Defendants and their forefathers to the plaintiffs and their forefathers. Nor was there any evidence that the alleged customary tenancy was one without the payment of tributes as was pointed out in AUDU MAKINDE & ORS v. DAWUDA AKINWALE & ORS (2000) 2 NWLR (PART 645) 435 at 452. There was no evidence that the Defendants or their predecessors in title ever recognized the plaintiffs as their overlords.” (Underlining mine for

emphasis).

The Court dwelt on the effect of its foregoing finding on the trial Courts contrary finding and by extension the fortunes of the defendants/respondents’ counter claim firstly at page 386 of the record of appeal thus:-
“Despite this clear lack of proof of the customary tenancy, the learned trial judge, relying entirely on the evidence of traditional history of the parties linkage with AKINBADE, adjudged the Defendants to be customary tenants of the Plaintiffs. And in reaching that conclusion, he preferred the traditional evidence of the Plaintiffs because of what he considered as contradictions in the evidence of the 1st Defendant. The Supreme Court has always advised that in assessing evidence of traditional history, the Courts should be wary in concluding that a partys version is improbable simply because of some minor inconsistencies in vis–vis the facts pleaded, unless the inconsistencies render the evidence materially at variance with pleadings. See: OGBUOKWELU v. UMEANAFUNKWA (1994) 4 NWLR (PART 341) 575 AT 699. In AUDU MAKINDE & ORS v. DAWUDA AKINWALE & ORS (supra) at 447 Belgore, JSC spoke of

inconsistencies in traditional evidence and their effects as follows” (Underlining supplied for emphasis).

The Court continued at page 387 of the record as follows:-
“In this case, having regard to the common ground by the parties that AKINBADE the original founder of the land was the very source of the Defendants holding on the land in dispute, the vital issue for determination was the status of the grant. It is my view therefore that one or more slips in the evidence of the 1st Plaintiff about the intervening ancestors from AKINBADE to the 1st3rd Defendants, is not so material as to defeat the presumption of ownership that inures in favour of the defence for their possession of the land right from the time of AKINBADE some 150 years ago. In fact the totality of the evidence is even more consistent with the Defendants’ claim that their title to the land in dispute is absolute”. Underlining supplied for emphasis).

And concluded at pages 387-388 thus:-
“On the whole, it is my conclusion that in the absence of proof of the alleged customary tenancy, which is the foundation of the Plaintiffs/Respondents’

claim, the presumption of ownership which inures in favour of the Defendants/Appellants remains unrebutted. The results is that the Plaintiffs/Respondents’ claim fails and is liable to be dismissed. I hold that the counter-claim succeeds.” (Underlining supplied for emphasis).

The appellants contend that the lower Court’s foregoing findings are perverse. On their being set-aside they urge that the trial Court’s findings be restored. They are not.

(Pt. 910) 241, Odulaja v. Haddad C. Ltd (2010) ALL FWLR (Pt. 527) 690.

In the instant case the respondents beyond asserting being in possession of the land in dispute for over 150 years pleaded and led evidence to the fact of inheriting the land in dispute through their ancestors, Olawusi and Ige, who were the children of Akinbade the original owner of the land. The appellants as plaintiffs and in defence of the respondents’ counter-claim, while admitting the fact that Akinbade had granted the land in dispute to Ige and Ogunsile, the ancestor of the 1st and 2nd defendants, insisted that with the former being a brother of and the latter a neighbour to Akinbade, the land in dispute could not have devolved to them through inheritance.

discharge this burden, the proper judgment is to find for the respondents who, as defendants and counter claimants, had established, by their traditional history, the fact of inheriting the land and being in possession of same. See Kodilinye v. Odu (1935) 2 WACA 336, Bello v. Eweka (1981) 1 SC 101 at 102 and David Itauma v. Friday Jackson Akpe-Ime (2000) LPELR-1557 (SC). In deferring to the evidence on record and the necessary principles applicable to the controversy at hand, the lower Court held at pages 384-385 of the record of appeal as follows:-
“Since the Plaintiffs’ case was that it was AKINBADE himself that granted the land to the Defendants it did not, in my humble view, really matter what the relationship between AKINBADE and the Defendants was. After all, AKINBADE being the original founder of the land in dispute, had unfettered rights to make grants of parts of same to anybody. He could make grants even to strangers. He therefore had unfettered right to make grant also to IGE who, according to them, was his younger brother and Ogunsile his neighbour. Thus, in so far as the Plaintiffs’ case is concerned the key issue for trial was the

ascertainment of the status of the grant through proof of the alleged customary tenancy. In my consideration, the learned trial judge ought to have directed himself at the legal burden on the Plaintiffs to prove the alleged customary tenancy. His failure so to do would probably have occasioned some injustice to the Defendants/Appellants.”
The foregoing is unassailable.

I remain unconvinced that the lower Court’s judgment the appellants contend is perverse has not emanated from the evidence on record or that it breaches any principle of law, substantive or procedural; or still, has taken into consideration irrelevant facts and/or ignored relevant facts and in consequence occasioned miscarriage of justice. In law the lower Court’s impeccable judgment must persist. Consequently, I find no merit in the appeal which is hereby dismissed.

The cost of the appeal assessed at N250,000.00k (Two hundred and Fifty thousand Naira) is ordered against the appellants in favour of the respondents.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Musa Dattijo Muhammad,

JSC just delivered. I agree with the reasoning and conclusion that this appeal lacks merit and deserves to be dismissed.

It is a settled principle of law that in a civil case, the burden of proof lies on the person who desires the Court to give judgment as to any legal right or liability which depends on facts which he asserts to prove that those facts exist. It is also settled that the burden of proof in a particular proceeding lies on the person who would fail if no further evidence is given on either side. See Sections 131 and 132 of the Evidence Act, 2011. The burden of first proving the existence or non-existence of a particular fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
Where a party adduces sufficient evidence to satisfy the Court that the fact sought to be proved is established, the burden shifts to the person against whom judgment would be given if no further evidence were adduced. The burden of proof would then continue to shift until all the issues in the pleadings have been dealt with.

See Section 133 of the Evidence Act. The standard of proof in civil cases is on the balance of probabilities. See: Woluchem v. Gudi (1981) 5 SC 291; A.G. Bayelsa State v. A.G. Rivers State (2006) 18 NWLR (Pt. 1012) 596; Agbakoba v. I.N.E.C. & Ors (2008) 18 NWLR (Pt. 1119) 489.

It is also settled law that a claim for a declaratory relief is a discretionary remedy which is never granted as a matter of course, on the admission of the adverse party or in default of pleadings by the defendant. The claimant must lead evidence to establish his entitlement to the declaration he seeks and may not rely on the weakness of the defence, if any. See: Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Bello v. Eweka (1981) 1 SC 101; Emenike v. P.D.P. (2012) LPELR-7802 (SC) @ 27 D-G.

In the case leading to this appeal, the appellants as plaintiffs sought inter alia declaratory reliefs in respect of their entitlement to the issuance of a Certificate of Occupancy in respect of the land in dispute and a declaration that the 1st, 2nd, and 3rd defendants being their customary tenants had forfeited their rights to remain on the land having sold the land

to the 4th-7th defendants and other purchasers without their knowledge.

The respondents, by counter claim also sought declaratory reliefs seeking declarations that their sale of the land to the 4th-7th defendants was valid and lawful by virtue of inheritance being the true and natural descendants of Akinbade, the first settler on the land and in exercise of their rights of ownership.

I agree with the learned Justices of the Court below that from the state of the pleadings, the crux of the appellants’ case was the alleged customary tenancy of the 1st-3rd defendants. They had the burden of establishing their assertions that the 1st-3rd defendants/respondents were customary tenants of the Akinbade family. The main feature of customary tenancy is the payment of tribute to the overlord, which entitles the customary tenant to enjoy his holding in perpetuity, subject to good behaviour. There can also be a customary tenancy without the payment of tributes but this must be proved by evidence. See: Makinde v. Akinwale (2000) 1 SC 89; Lawani v. Adeniyi (1964) NSCC (Vol. 3) 231 @ 233. This recognition of the rights of the overlord is paramount in a

customary tenancy. See: Okpala v. Okpu (2003) 5 NWLR (Pt. 812) 183; Dashi v. Satlong (2009) 1-2 SC 5; Lasisi v. Tubi (1974) 12 SC (Reprint) 62.

I am in full agreement with the lower Court that having failed to lead evidence to establish the customary tenancy of the 1st-3rd respondents, the appellants were not entitled to the declaratory reliefs they sought.

The 1st-3rd respondents on the other hand, upon a preponderance of evidence proved that they were direct descendants of the original owner of the land in dispute through their ancestors, Olawusi and Ige who in turn inherited it from their father, Akinbade and that their sale of the land to the 4th-7th defendants was in exercise of their rights as absolute owners by inheritance. The appellants also admitted the exclusive possession of the 1st-3rd respondents.

The lower Court meticulously examined the evidence on record and rightly, in my view, found that the appellants failed to prove their case. In light of the convincing and cogent evidence led by the defendants in support of their counterclaim, the Court was right to have set aside the judgment of the trial Court and granted the

declarations sought in the counterclaim of the respondents.

For these and the fuller reasons ably advanced in the lead judgment, I also find no merit in the appeal. It is hereby dismissed. The judgment of the Court below is affirmed. I abide by the order for costs as contained in the lead judgment.

JOHN INYANG OKORO, J.S.C.: I had the privilege of reading in advance the lead judgment just delivered by my learned brother, Musa Dattijo Muhammad, JSC which I agree that this appeal lacks merit and deserves to be dismissed. Although my learned brother has exhaustively dealt with all the issues donated for the determination of this appeal, I propose to make a few comments in support of the judgment.

Evaluation of evidence entails the trial judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. See Mogaji v. Odofin (1978) 4 SC P. 91, Lafia Local Government v. The Executive Governor of Nasarawa State & Ors (2012) LPELR-20602 (SC) (2012) 17 NWLR (Pt. 1328) 94. Evaluation involves reviewing and criticizing as

well as estimating the evidence, and it is by this process of assessment of evidence and ascription of value to same that the Court can arrive at the proper decision of who to believe and who to disbelieve. The belief must be a reasoned preference of one piece or version of evidence to the other. See Alhaji Jimoh Ajagbe v. Layiwola Idowu (2011) LPELR-279 (SC) (2011) 17 NWLR (Pt. 1276) 422.

I need to emphasize that it is the duty of a trial Court to evaluate evidence generated before him. Where a trial Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. An appellate Court is not to disturb the findings of facts and evaluation of evidence by the trial Court simply because it could have done it differently so long as the judgment of the trial Court can be supported by the evidence. SeeEze v. Okoloagu (2010) 3 NWLR (Pt. 1150) 182.
Where however a trial Court abdicates its duty of evaluation of evidence and the ascription of weight to the evidence, or when it is demonstrably shown that it had not done it properly or having

done it, came to a wrong conclusion, or there are good and exceptional reasons to do so, an appellate Court is in a good position as the trial Court to evaluate the evidence and ascribe probative value thereto before taking a decision. See Akinola v. Oluwo (1962) 1 SCNJ P.352.

In the instant case, the appellants had alleged that the respondents are their customary tenants for which the trial Court upheld. But the Court below looked at the evidence led at the trial Court but could not find any iota of evidence to support that assertion. There was no evidence of payment of tribute to the appellants as overlords which is the main incident of customary tenancy. Indeed, customary tenancy involves the transfer of an interest in land from the customary landlord or overlord to the customary tenant and which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behavior, he holds in perpetuity. See Damulak Dashi & Ors v. Stephen Satlong & Anor (2009) LPELR-929 (SC) (2009) 5 NWLR (Pt. 1134) 281.

In view of the fact that the case of the plaintiffs, now appellants was anchored on customary

tenancy, the learned trial Judge ought to have relied on evidence led before him in that respect. When he entered judgment for the appellants herein, it was done without evidence. Put differently, the judgment was not supported by evidence before it. No wonder the Court below stated on page 386 of the record that:-
“Despite this clear lack of proof of the customary tenancy, the learned trial Judge, relying entirely on the evidence of traditional history of the parties’ linkage with AKINBADE, adjudged the Defendants to be customary tenants of the plaintiffs.”

The Court of Appeal concluded on pages 387-388 as follows:-“On the whole, it is my conclusion that in the absence of proof of the alleged customary tenancy, which is the foundation of the Plaintiffs/Respondents claim, the presumption of ownership which inures in favour of the Defendants/Appellant remains unrebutted. The result is that the Plaintiffs/Respondents claim fails and is liable to be dismissed. I hold that the counter-claim succeeds.”

I agree. The evidence led by the appellants at the trial Court was not enough to upstage the holding of the Respondents for

over 159 years on the land.

Based on all I have endevoured to say above and that more elaborate reasons in the lead judgment, I agree that this appeal lacks merit. It is hereby dismissed by me. I abide by all the consequential orders made in the lead judgment, that relating to costs, inclusive.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Musa Dattijo, JSC, obliged me with the draft of the leading judgment just delivered now. I agree with His Lordship that this appeal, lacking in merit, should be dismissed.

At the trial, the appellants [as plaintiffs] alleged that the first to third respondents [as defendants] were their customary tenants. They however, failed to prove their allegation of customary tenancy. Expectedly, they were not entitled to their reliefs. Indeed, as this Court held inDada and Ors v. Bankole and Ors [2008] 5 NWLR (Pt. 1019) 26, 66; C-D, in a claim for declaration of title to land based on customary tenancy, it is not enough for the plaintiff to merely assert that the defendant paid customary tribute to him. There must be positive proof that the defendant is a customary tenant of the plaintiff and

that he in fact, paid customary tribute. In the instant case, the plaintiff’s evidence fell far short of the standard required to prove the alleged customary tenancy.

A customary tenancy involves the transfer of an interest in land from the customary landlord or overload to the customary tenant and which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behaviour, he holds in perpetuity, Dashi and Ors v. Satlong and Anor (2009) LPELR-929 (SC) 18; E-F.
It has indeed, long been pointed out that the theory behind the concept of our customary tenancy is that where strangers or immigrants have been granted land for occupation and user, they are entitled to continue in peaceable enjoyment until they forfeit their rights on such grounds as, for example, alienating a portion of the land to others without the prior consent of the grantors; or by putting the land to uses other than those originally agreed upon; or by failure to pay the customary tribute; or by denying the title of the overlord.
The list is not exhaustive, though it is important to observe that it is also

well-established that customary tenants should not suffer forfeiture for minor acts of misbehaviour, and that the Courts are loath to order forfeiture except in the most exceptional circumstances, Ashagbon v. Oduntan 12 NLR 7; Ogbakumanwu and Ors. v. Chiabolo 19 NLR 107; Lasisi and Anor v. Tubi and Anor (1974) LPELR -1757 (SC) 6; C-G.

It is for these and the more elaborate reasons in the leading judgment that I too, shall dismiss the appeal. Appeal dismissed.

EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered by my learned brother, HON. MUSA DATTIJO MUHAMMAD, JSC. It represents my views in the appeal, and I hereby adopt it.

I need only to add, only for purposes of emphasis, that from the pleadings and the evidence led for the Appellants, as the plaintiffs; the Appellants had admitted the exclusive possession of the Respondents on the disputed land. They though qualified the admission to the effect that the Respondents are their customary tenants. As facts admitted need no further proof, the Respondents are no longer saddled with the burden of proving that they are in exclusive possession of the

disputed land.

The Appellants, having pleaded or asserted that the Respondents are their customary tenants, it behoves them in law firstly, to establish their superior title and then proceed further to establish that, in the exercise of their ownership rights, they (the appellants) ceded the disputed land, conditionally or on terms, to the 1st-3rd Respondents. This is the only way they [the appellants) can rebut the presumption in law, by dint of Section 145 of the Evidence Act 1990 (now Section 143 of the Evidence Act, 2011) that provides:
When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

When the burden of rebutting this presumption in law is taken together with other legal burdens placed on the Appellants, as the plaintiffs, their task is rather enormous. He who asserts must prove under the Evidence Act (respectively Sections 134 and 131 of the 1990 and 2011 Acts) that provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the

existence of facts which he asserts must prove that those facts exist. Because of the nature of the instant dispute, involving property rights guaranteed by the Constitution, the Appellants are obliged to prove their assertions by good and substantial evidence.

Not only that it is admitted by the Appellants that the Respondents are in exclusive possession of the disputed land, the Appellants further admit that the Respondents are in adverse possession and have consistently been selling portions of the land in expression of their (1st-3rd Respondents’) ownership rights. The facts of this case seems to bring it within the principle established by this Court in ONI. v. ARIMORO (1973) 3 SC1 63 at 179; (1973) 8 NSCC 108 at 114 that an adverse and exclusive possession of land for several years could ripen to ownership, particularly when there is no evidence that the plaintiffs who assert the ownership of the land, though aware of the adverse possession; of the defendants, never in those years either took steps to quit them from the land or demand payment from them of any sort of rents. The Court of Appeal (per Adio, JCA, as he then was) applied the

principle, established in ONI v. ARIMORO (supra), in IGIEHON v. OMOREGIE (1993) 2 NWLR (Pt. 276) 398 at 408.

The fact, which the Appellants were unable to satisfactorily prove at the trial Court turns on the question: on what terms were the forefathers of the 1st-3rd Respondents put in the exclusive possession of the disputed land The Appellants also admit that Akinbade, the forefather of the 1st-3rd Respondents, was the original founder of the disputed land. The 1st-3rd Respondents, on their part, posit that they are in exclusive possession of the land as absolute owners; that the title they assert, devolved unto them through inheritance, and that the said Akinbade was their forefather. The 1st-3rd Respondents’ maintain, consistently, that they are descendants of Akinbade, a fact neither disputed nor refuted by the Appellants.

The Court of Appeal, at pages 385-386 of the Record, had resolved the pertinent question whether the customary tenancy asserted by the Appellants, being a matter of fact, was ever proved It found, from the evidence in the printed Record, that the Appellants did not prove their assertion, having failed to prove

the terms of the grant of the customary tenancy. I cannot fault the finding of fact.

The trial Court relied on the evidence of traditional history on which the Appellants predicate their claim to the title they assert against the 1st-3rd Respondents, who also situate their title on inheritance and devolution from the original founder of the Akinbade. The case therefore rests on competing traditional histories. The principle of law developed as regards competing traditional histories is: the best way to determine which of the traditional histories is more probable is to test them by reference to the facts and/or events in the recent years established by evidence. MORENIKEJI v. ADEGBOSIN (2003) 4 SC (Pt. 1) 107; (2009) 8 NWLR (Pt. 823) 612; KOJO II v. BONSIE & ANOR. (1957) l WLR 1223 at 1227; ADENLE v. OYEGBADE (1967) NMLR 136. The Appellants themselves admit the exclusive possession of the land by the 1st-3rd Respondents from the days of their forefather, Akinbade, and further that over the years not only that the 1st-3rd Respondents reside on the land, that they also have been selling the land in clear exercise of rights of ownership. The events

and/or acts in the recent year inure in the Respondents in addition to their exclusive possession of the disputed land.

On the facts in the printed Record I cannot fault the findings of fact made by the Court of Appeal in favour of the Respondents. The findings are reasonable and are supported by evidence in the Record. I find no merit in the appeal. The decision of the Court of Appeal is hereby affirmed. I also award, as costs, N250,000.00 in favour of the Respondents and against the Appellants.

Appearances:

Kazeem A. Gbadamosi with him, J. D. Rufai For Appellant(s)