SAMUEL AKINWALE OWOEYE V. CHIEF DANIEL ADEFEHINTI OYINLOLA & ORS
(2012)LCN/5445(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of June, 2012
CA/B/350/2008
RATIO
APPEAL: WHERE SHOULD AN ISSUE FOR DETERMINATION BE DERIVED FROM
The law is settled that an issue for determination must be derived from a ground of appeal, which in turn must be a complaint against the ratio decidendi of the judgment appealed against. See: Egbe V. Alhaji & Ors. (1990) 1 NSCC (Vol.21) (Pt.1) 306 @ 332 lines 39 – 44: Dalek Nig. Ltd. V. OMPADEC (2007) ALL FWLR (364) 204 @ 226 F – H. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
COURT: WHETHER A COURT IS BOUND BY ITS RECORD
It is also well settled that the court is bound by its record. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
LAND LAW: METHODS OF PROVING TITLE TO LAND
The five methods by which title to land may be proved 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) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
See: Idundun V. Okumagba (1976) 9 – 10 SC 227. The methods are not conjunctive. Proof of any one of the methods would suffice to entitle the claimant to the declaration. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
LAND LAW: REQUIREMENTS OF A PARTY RELYING ON TRADITIONAL HISTORY
A party relying on traditional history must plead and prove the following:
i, Who founded the land;
- In what manner the land was founded; and
iii, Names and particulars of successive owners through whom he claims.
See: Nruama V. Ebuzoeme (2006) 2 WRN 133 @ 158 lines 20 – 45; Akinloye Vs Eyiyiola (1968) NMLR 92; Mogaji V. Cadbury Nig. Ltd. (1985) 2 NWLR (7) 393 Lawal V. Olufowobi (1996) 12 SCNJ 376. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
SAMUEL AKINWALE OWOEYE Appellant(s)
AND
1. CHIEF DANIEL ADEFEHINTI OYINLOLA
2. MR. JACOB OYINLOLA
3. MR. EBENEZER OYINLOLA
(for themselves and on behalf of Odunwo family of Ipogun) Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State, Akure Judicial Division delivered on 7/7/08 dismissing the appellant’s claims for declaration of title, damages for trespass and injunction.
The appellant was dissatisfied with the decision and filed a notice of appeal dated 23/7/08 containing four grounds of appeal. With the leave of this court he filed an amended notice of appeal containing ten grounds of appeal. It was deemed properly filed on 26/4/2010. The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant’s brief is dated 28/9/09 and filed on 5/10/09. It was deemed properly filed and served on 26/4/2010. The respondents’ brief is dated 2/6/2010 and filed on 3/6/2010.
At the hearing of the appeal on 5/3/2012, F. OMOTOSHO ESQ., learned counsel for the appellant adopted and relied on his brief of argument and urged the court to allow the appeal. Learned counsel for the respondent although duly served with hearing notice was absent. Having filed a brief of argument, he was deemed to have argued the appeal pursuant to Order 18 Rule 9 (4) of the court of Appeal Rules 2011. However, Mr. Omotosho urged the court to discountenance the respondents’ brief for being incompetent on the ground that it was filed out of time without leave, He referred to: Khalil V. Yar’Adua (2003) 16 NWLR (847) 446 @ 473 F.
The appellant’s brief was filed out of time pursuant to a motion on notice dated 16/4/2010 and filed on 20/6/2010. It was deemed properly filed and served on 26/4/2010. By Order 17 Rule 4 (1) of the Court of Appeal Rules 2007, the respondents had 30 days from the date of service of the appellant’s brief on them to file their brief of argument. The brief of argument filed on 3/6/2010 was filed about 10 days outside the 30 days prescribed by the rules; I have carefully examined the court’s record. The respondents neither sought nor were granted an enlargement of time within which to file their brief. The issue is whether the said brief, which is before the court and part of its record should be discountenanced. This court faced with a similar situation in the case of Nwankwo V. Kanu (2010) 6 NWLR (1189) 62 @ 91 C – F per Ariwoola, JCA (as he then was) held:
“It is not disputable that the respondents ought to have applied to court to regularise their brief, which was filed out of time and at best be damnified in costs in favour of the appellants. In my view, failure to regularise their position should not be enough liberty to disregard or discountenance the brief of argument already filed, served and even reacted to by the appellants. The court cannot close its eyes in the interest of justice, to the said brief. The story would have been different if the respondent failed to file any brief at all. The respondents would not have been heard in oral argument. See: Order 17 Rule 10 Court of Appeal Rules, 2007. … I do not therefore think that justice of the case would be met by discountenancing the respondents’ brief of argument simply because it was filed out of time. It is a mere irregularity; I shall therefore consider the said brief of argument for whatever it is worth in deciding the appeal.”
In Khalil’s case referred to by Mr. Omotosho, it was the appellant’s reply brief that was filed out of time. The appeal could be conveniently determined on the appellant’s and respondents’ briefs as the appellant was deemed to have conceded the new points raised in the respondents’ brief. In any event the courts have moved away from doing technical justice in favour of substantial justice, I am therefore guided by the above decision and shall consider the arguments in the respondent’s brief in order to arrive at a just resolution of the issues in dispute in this appeal.
The appellant formulated 8 issues for determination as follows:
1. Whether the trial court properly evaluated the evidence of traditional history adduced by both parties on the founder of the land in dispute before arriving at its finding that Kumolarin Ojo was the founder of the land who first deforested. (Grounds 1 & 2)
2. Whether the trial Judge was right in expunging from the record the evidence of the appellant to the effect that Kumolarin inherited the land in dispute from his mother Atunwase as the piece of evidence was not pleaded in view of the averments in paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15 and 25 of the statement of claim and paragraph 3 of the Reply to the Statement of Defence. (Ground 3)
3. Whether the admission of the inadmissible evidence of the respondents witnesses DW2 & DW4 has in anyway occasioned a miscarriage of justice to the appellant. (Ground 4 & 5)
4. Whether it is right for the trial court to disbelieve the evidence of the appellant that his brother Aladesanmi inherited from their late father Owoeye the farmland in dispute, while the appellant inherited the land upon the death of Aladesanmi. (Ground 6)
5. Whether the finding made by the trial court that after the death of Kumolarin Ojo his children and grandchildren were farming at their respective portion of the farmland and at no time did the appellant and his father farmed (sic) on the entire land when there was no evidence of partition of the farmland is perverse. (Ground 7)
6. Whether the trial Court properly evaluated the documentary evidence of exhibits P1, P2, P3, P4, P4, P5, P6 and P7 before arriving at its findings that all the documents relate to the appellant’s portion of the land in dispute and not the entire land
7. Whether the trial court rightly determine which of the evidence of the traditional histories adduced by the parties is more probable.
(Ground 8)
8. Whether the trial court breached the appellant’s right to fair hearing.
The respondents formulated 3 issues thus:
1. Whether the appellant sufficiently proved his title to land based on evidence of traditional history.
2. Whether the failure of the trial court to consider the rule in Kojo V. Bonsie (1957) 1 WLR 1223 @ 1226 has led to miscarriage of justice that may require the appellate court to allow the appeal.
3. Whether the right to fair hearing of the appellant was breached by the trial court.
I am of the considered view that two issues arise for determination in this appeal:
1. Whether the trial court breached the appellant’s right to fair hearing,
2. Whether the learned trial Judge properly evaluated the evidence before him before rejecting the evidence of traditional history relied upon by the appellant.
Issue 1
As the appellant has raised the issue of fair hearing, it would be prudent to consider and resolve it first. This is because the consequence of a denial of the right to fair hearing is a nullification of the entire proceedings no matter how well conducted. See: Salu V. Egeibon (1994) 6 NWLR (348) 23 @ 44; Adigun V. A.G. Oyo State (1987) 1 NWLR (53) 678. An allegation of denial of fair hearing goes to the root of the entire adjudication. It must therefore be considered and resolved before going into the merits of the decision appealed against.
Learned counsel for the appellant submitted that the appellant was denied fair hearing because he was denied the opportunity of stating his case in his own way. He submitted that the appellant and his witness elected to testify in Yoruba language. He alleged that after they were sworn in Yoruba language, the court insisted that they testify in English. He contended that they did not testify through an interpreter. He submitted that where an interpreter was provided, it was so stated in the record. He referred to the record of proceedings regarding the testimony of DW1 and DW2. Learned counsel urged that in the face of this lapse the case should be sent back to the lower court for retrial.
In reaction to this argument, learned counsel for the respondent referred to Section 36 (4) (c) of the 1999 Constitution and submitted that it is only in criminal cases where an accused person indicates that he does not understand the language of the court that he must be provided with the services of an interpreter.
He submitted further that the appellant was well represented by a team of lawyers at the trial who never raised the issue throughout the proceedings. He submitted relying on the case of State V. Gwanto (1983) 1 E.N.R. 132 that not having raised the issue at the trial court the appellant cannot make the complaint for the first time before this court.
The pertinent aspect of the contention of learned counsel for the appellant is that the court below insisted that the appellant and his witness should testify in English language even though they had elected to testify in Yoruba and had been sworn accordingly.
Ground 10 of the notice of appeal (shorn of its particulars) upon which the appellant’s issue 8 (now issue 1) was formulated reads thus:
Ground 10
The learned trial Judge erred in law when he insisted that the appellant and his only witness must give their evidence in English Language in spite of the glaring illiteracy of the witnesses and thereby occasioning serious miscarriage of justice to the appellant’s case and a denial of fair hearing.
The law is settled that an issue for determination must be derived from a ground of appeal, which in turn must be a complaint against the ratio decidendi of the judgment appealed against. See: Egbe V. Alhaji & Ors. (1990) 1 NSCC (Vol.21) (Pt.1) 306 @ 332 lines 39 – 44: Dalek Nig. Ltd. V. OMPADEC (2007) ALL FWLR (364) 204 @ 226 F – H. It is also well settled that the court is bound by its record. PW1, Chief Awoyemi Oginni testified on 19/6/2007. The record of proceedings for that day at page 17 of the record reads thus:
“Parties are present except 1st defendant.
W. Omotosho Esq, with T. Adedipe Esq., A. Adekile Esq., Prince A. Ojopgogo and I.C. Ezechiefoh Esq., G.O. Atuwape Eq, for the Plaintiff
L.K. Dare Esq., for the Defendants.
Plaintiffs Case
PW1 – Sworn on the Holy Bible and states in Yoruba as follows:-
My name is Chief Awoyemi Oginni, I live at No. 34 Ayelabalola Street, Ipogun, I am a farmer, I know the plaintiff. We are the same family from Odunwo family. …” (Emphasis mine)
He concluded his evidence in chief was cross-examined by learned counsel for the defendants and was not re-examined on any issue by his counsel.
The appellant testified as the second witness. The record reads:
“Plaintiff – Sworn on the Holy Bible and states in Yoruba as follows:-
My name is Samuel Owoeye, I live at No, 37 Ayelabola Street, Ipogun. I am a farmer … I know the defendants. They are members of my father’s family …”(Emphasis mine)
At the conclusion of his evidence in chief, he was also cross-examined by learned counsel for the defendants. No questions were put to him under re-examination.
It is correct, as submitted by learned counsel for the appellant that in recording the evidence of DW1 and DW2 the learned trial Judge recorded as follows:
“DW1 – Sworn on Holy Bible and states in Yoruba dialect as follows through the Senior Registrar …
DW2 – Sworn on Holy Koran and states in Yoruba through the Senior Registrar as follows …” (Emphasis supplied)
DW3 testified in English Language. However in recording the testimony of DW4 who also testified in Yoruba language, His Lordship recorded as follows:
“DW4 – Sworn on the Holy Bible and states in Yoruba dialect as follows …”
The allegation of learned counsel for the appellant that the learned trial Judge insisted that PW1 and the appellant should testify in English language after having been sworn in Yoruba language is not borne out by the record. The appellant was represented by a formidable team of six lawyers. The issue as to the witnesses not being allowed to state their case in their own way was never raised before the court. There was no protest at the alleged insistence by the court that they should testify in English Language. The complaint seems to have been raised from the manner in which the learned trial Judge recorded the proceedings. As shown above, even though DW4 also testified in Yoruba language, it was not stated that he testified through the Senior Registrar. That fact alone is not sufficient to draw the conclusion that the witness was compelled to testify in a different language from the one he elected to use, it was never suggested that the witnesses could not understand the proceedings. The issue was also not raised during the final addresses of counsel. I find no basis whatsoever from the record before me to support the allegation that the learned trial Judge compelled the appellant and his witness testify in English language. This issue is completely lacking in merit and it is accordingly resolved against the appellant.
Before considering the main issue for determination in this appeal, it is appropriate at this stage to give a brief summary of the facts of the case.
It was the appellant’s case that Fatokun his maternal great grandfather founded the land by conquest. He had four female children. Atunwase, the eldest daughter later married Ajagboju who hailed from the same Odunwo chieftaincy family as the respondents. Atunwase and her husband Ajagboju had one male child. Since Fatokun had no male child, he took special interest in Kumolarin by taking him to his farm, known as Igbooluwa, which is the land in dispute. It was the appellant’s case that upon the death of Fatokun, Atunwase inherited the land while her three sisters were given their father’s personal properties; Kumolarin continued farming on his mother’s farmland, which he inherited, after her death. Having regard to the vast size of the farmland it was the appellants case that he called upon his father’s relations, the father and grandfather of the respondents to join him in farming on the land. It was his contention that this is how the respondents got to the land in dispute, Kumolarin later married Ige as his only wife who begat Owoeye the appellant’s father and three other children namely, Adepetu, Olisa Samson Dada and Kelibe. When Kumolarin died, Owoeye inherited the land and upon his death, the appellant’s older brother Aladesanmi Owoeye inherited it. Thereafter it devolved on the appellant. The appellant tendered several exhibits in proof of recent acts of ownership exercised by his father and himself on the parcel of land in dispute. It was also his case that there was a local refinery of palm kernel known as “Eku” on the land, which was owned by his forefathers.
The case of the respondents on the other hand was that Kumolarin Ojo was the original owner of the land. That he acquired it when it was a virgin forest and was the first to farm it. They contended that the land in dispute belongs to both parties.
They contended that Kumolarin had 4 wives and not one as contended by the appellant. It was their case that after Kumolarin Ojo died all his male children from the four wives including the father of the appellant, inherited the land in dispute, farmed on it and upon their death, their children and grandchildren took over the respective portions of their fathers without any formal partitioning of the land, but demarcated their portions with kolanut trees and water. They contended that the appellant and his family are not entitled to the entire land in dispute but only the portion farmed by their father and grandfather. They contended that they had never challenged the appellant on his own portion of the land in dispute. They also contended that the documents relied upon by the appellant relate only to his own portion of the land and not the entire expanse of land in dispute.
Issue 2
In support of this issue, Mr. Omotosho, learned counsel for the appellant submitted that one of the grounds upon which the learned trial Judge rejected the appellant’s evidence of traditional history was that there were contradictions between his evidence and that of his witness PW1 as to who founded the land. He contended that in order for there to be material contradiction in the evidence of the witnesses such evidence must assert or affirm the opposite of what the appellant asserts, He referred to: Idiok V. State (2006) 12 NWLR (993) 1 @ 21 – 22; Agbo V. State (2005) All FWLR (309) 1380 @ 1385 – 1386. He contended that by the state of the pleadings and his evidence, the appellant’s case was that Akogun Owoeye was the father of the appellant in line of succession to the ownership of the land. He submitted that the evidence of PW1 to the effect that Akogun was not the first to farm on the land reinforced the appellant’s pleading and evidence in support thereof that Fatokun founded the land in dispute by conquest and named it Igbo Oluwa. He contended that the pleadings and evidence were unchallenged. He submitted that the evidence of the respondents that their ancestor, Kumolarin Ojo first settled on and deforested the land in dispute, which the trial court believed and preferred, is not pleaded. He argued that the respondents’ pleadings refer to acquisition by Kumolarin Ojo without stating how and from whom he acquired the land, while their evidence was to the effect that the land originally belonged to him without stating how he came to be the original owner and who deforested it. He submitted that they failed to prove plead and prove who founded the land, how it was founded and the particulars of intervening owners through whom they claim. He referred to: Nwokorobia v. Nwogu (2009) All FWLR (476) 1868 @ 1885 G – H and submitted that the trial court ought not to have ascribed any credibility to their evidence. He submitted that in light of the glaring conflict between the respondents’ pleading and their evidence before the court, notwithstanding the court’s use of the phrase “I believe” with respect to their evidence, this court is not precluded from making its own evaluation to ascertain if the belief was justly founded. He referred to Lawal V. P.G.P. (Nig). Ltd. (2001) 17 NWLR (742) 393 @ 408.
Learned counsel submitted that the learned trial Judge erred in expunging the appellant’s evidence to the effect that Fatokun’s eldest daughter, Atunwase, inherited the land in dispute from her father and in turn gave the land to her son Kumolarin on the ground that the evidence was not supported by his pleadings. He submitted that the entire pleadings ought to be read as whole and not certain paragraphs taken in isolation. He relied on: A.G, Ekiti State V. Daramola (2003) 10 NWLR (827) 104 @ 124 – 125. He argued that paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15 and 25 of the amended statement of claim read in conjunction with paragraph 3 of the reply to the statement of defence reveal that Kumolarin inherited the land from his mother. Learned counsel also contended that the evidence of DW2 to the effect that he was a labourer to the father of the 2nd defendant on the land in dispute for over twenty years was at variance with the averment in paragraph 21 of the statement of defence and is therefore inadmissible and should be expunged from the record. He contended that the learned trial Judge was wrong to hold that the evidence could be accommodated under the said paragraph. He submitted that the evidence is a material fact that ought to have been pleaded and having been wrongly admitted should be expunged from the record. He argued in the same vein with regard to the evidence of DW4 to the effect that it was the father of the 3rd defendant who brought his father to the land and gave him land to farm on in relation to the pleading in paragraph 14, of the statement of defence. He contended that there is no nexus between the pleading and the evidence given by DW4 and it should also be expunged from the record.
He submitted that the wrong admission of the above pieces of evidence occasioned a miscarriage of justice to the appellant because it prejudiced the mind of the court and led it to accept and believe the evidence of the respondents over that of the appellant.
Another complaint of the appellant was that the learned trial Judge erred in holding that he did not believe the appellant’s evidence that he inherited the land from his senior brother, Aladesanmi, because he failed to prove such a custom that excludes his brother’s children from inheriting the land. He submitted that on the one hand, in paragraph 15 of their statement of defence the respondents admitted that the appellant inherited the land from his brother, while on the other hand in paragraph 22 they averred that he could not have inherited the land from his brother who has children. He referred to the evidence of DW1 and DW3 and maintained that they did not deny the fact that the appellant inherited the land from his brother, Aladesanmi. He submitted that facts admitted require no further proof.
Learned counsel submitted that in the absence of any evidence of partitioning of the land, the finding of the learned trial Judge that after Kumolarin Ojo’s death his children and grand children farmed on the respective portions of land farmed on by their forbears and that the appellant and his father never farmed on the entire land is perverse. He referred to the appellant’s evidence that he farmed on the entire expanse of land with the aid of helpers such as labourers. He also referred to Exhibit P5, which showed that one Dare Oyinlola, a member of the respondents’ family entered into an agreement with the appellant for land on which to farm. On the evidence required to establish partition he relied on the case of: Olorunfemi V. Asho (2000) 2 NWLR (643) 143 @ 163 D – F.
With regard to Exhibits P1 to P5 (agreements between the appellant and some labourers to work on the farm), Exhibit P6 (owner’s consent issued by the appellant permitting the felling of a tree) and Exhibit P7 (tenancy agreement between the appellant and Dare Oyinlola in respect of a parcel of land for planting and harvesting maize), learned counsel submitted that the learned trial Judge erred in holding that the said agreements relate only to the portion farmed on by his father and grandfather when the said exhibits did not contain any term or condition limiting them to just a portion of the land in dispute, as contended by the respondents. He referred to Exhibit P7, the agreement entered into with Dare Oyinlola, a member of the respondents’ family, which states in its recital that the appellant is the owner by inheritance of the vast parcel of land situate at Igbo Oluwa, Ipogun, Ondo State. He submitted that the learned trial Judge ought to have used the documentary evidence to resolve any apparent conflict in the oral evidence of the witnesses and as a hanger from which to test the veracity of the oral evidence. He referred to: Bunge V. Governor Rivers State (2006) ALL FWLR (325) 1 @ 39. He submitted that the oral evidence of the respondents could not add to, subtract from or vary the express terms of the exhibits. He urged this court to evaluate the exhibits and make proper findings thereon.
Learned counsel submitted that since both parties relied on traditional history and there was conflict between the two, they ought to have been tested by reference to events in recent years as established by the evidence of the parties. He referred to: Chukwu V. Amadi (2009) ALL FWLR (472) 1189 @ 1214 E – F; Morenikeji V. Adeobosun (2003) 8 NWLR (823) 612 @ 638 – 639. He argued that in failing to apply the test, the learned trial Judge failed to properly evaluate the evidence. He urged the court to intervene and set aside the judgment.
It is the contention of the respondents relying on several authorities that the appellant failed to prove the three essential factors for establishing ownership of land through traditional history. He submitted that contrary to his pleading that Fatokun was the original owner of the land, his sole witness, PW1 testified that Akogun Owoeye was the original owner of the land and maintained this position under cross-examination, He conceded that the said witness subsequently stated that Akogun Owoeye was not the first person to come to the land but failed to name the first settler. He argued that there was nothing in the evidence in chief or cross-examination of PW1 that established the fact that Fatokun was the original owner of the disputed land. He submitted that the learned trial Judge did not err in disbelieving the appellant on who founded the land. He submitted further that the appellant failed to lead evidence in support of his pleading that Fatokun founded the land through conquest. He contended that the appellant ought to have called at least one witness to support his assertion in this regard. He relied on Ezeokonkwo V. Okeke (2002) 5 SCNJ 1 @ 14; Adejumo V. Ayantegbe (1989) 3 NWLR (110) 417; Olujinle V. Adeagbo (1988) 2 NWLR (75) 238. He submitted that the appellant’s case was liable to be dismissed for failure to prove how his ancestor acquired the land. Referring to paragraphs 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the amended statement of claim, he submitted that the appellant gave evidence at variance with the averments in the said paragraphs.
He referred to the finding of the learned trial Judge at pages 61 and 62 of the record and submitted that the learned trial Judge was right in disbelieving the appellant’s evidence as to how the land devolved on him. He submitted that where a plaintiff fails to link himself to the land he claims his claim for declaration of title by traditional evidence is bound to fail. He relied on: Odumosu V. Oluwole (2004) FWLR (191) 1630 @ 1632; Akinloye V. Eyilola (1968) NMLR 92; Mogaji V. Cadbury (Nig.) Ltd. (1985) 2 NWLR (7) 393. He also noted that although the appellant admitted that his late brother Aladesanmi had both male and female children and that he (appellant) was not his father’s only surviving child, he did not institute the action in a representative capacity. He urged the court to find and hold that the appellant failed to plead and prove his root of title by traditional evidence and therefore his claim is liable to be dismissed in toto and no other evidence should be considered. He relied on: Yusuf V. Adegoke (2007) 30 NSCQR 269 @ 273.
With regard to the rule in Kojo V. Bonsie, learned counsel submitted that it is inapplicable to this case. He submitted that for the rule to apply there must be two competing traditional histories that are equally credible before the court can resort to acts of possession within living memory as a test to determine which of the stories is more probable. He referred to: Ohiaeri V. Akabeze (1992) 2 NWLR (221) 1 @ 5; Aoedegudu V. Ajenifuia (1963) 1 SCNLR 205: Ekpo V. Ita (1932 – 34) 11 NLR 68. He submitted that from the evidence before the court, as correctly evaluated by the learned trial Judge in his view, the appellant’s evidence was not credible. He submitted that there is sufficient evidence to support the learned trial Judge’s findings at page 61 of the record and the findings should therefore not be disturbed by this court. He argued that the evidence led by the appellant was so self-contradictory that no reasonable tribunal would act on it. He gave instances of the alleged contradictions and relied on the case of: Onigbede V. Balogun (2002) 2 SCNJ 219 @ 234.
He submitted without conceding that even if the rule in Kojo V. Bonsie applied and recent acts of possession were to be considered, there was sufficient evidence before the court of credible acts of possession on the land by the respondents, which were admitted by the appellant and his witness. He referred to the relevant portions of the record of proceedings.
The five methods by which title to land may be proved 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) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
See: Idundun V. Okumagba (1976) 9 – 10 SC 227. The methods are not conjunctive. Proof of any one of the methods would suffice to entitle the claimant to the declaration. Where the claimant relies on traditional evidence and it is found to be cogent it would be sufficient to sustain his claim. The onus is on him to prove his title upon a preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See: Onwugbufor Vs Okoye (1996) 1 NWLR (424) 252; Shittu V. Fashawe (2005) 14 NWLR (946) 671: Eze V. Atasie (2000) 9 WRN 73 at 88; Adesanya V. Aderonmu (2000) 13 WRN 104 at 115 lines 10 – 35.
Where the defendant does not file a counter claim the heavy burden of proving title to the land in dispute rests squarely on the claimant. There is no duty on the defendant to prove his title, See: Adekanbi V. Jangbon (2007) ALL FWLR (383) 152 @ 160 G: 163 E & 165 D – F.
The appellant herein relied on traditional history in proof of his title to the land in dispute. A party relying on traditional history must plead and prove the following:
i, Who founded the land;
ii. In what manner the land was founded; and
iii, Names and particulars of successive owners through whom he claims.
See: Nruama V. Ebuzoeme (2006) 2 WRN 133 @ 158 lines 20 – 45; Akinloye Vs Eyiyiola (1968) NMLR 92; Mogaji V. Cadbury Nig. Ltd. (1985) 2 NWLR (7) 393 Lawal V. Olufowobi (1996) 12 SCNJ 376.
The first issue to resolve is whether the evidence of the appellant and his witness was contradictory as to who founded the land in dispute. This covers factors (i) and (ii) above. Paragraph 7 of the amended statement of claim is relevant in this regard. The appellant pleaded thus:
”7. The plaintiff avers that the first of his ancestors and who was also the first person to ever farm and own the land was Fatokun, in that he (Fatokun) discovered and founded the vast area of land upon his war expeditions and conquest as a warrior from Ile-Ife through Ile Oluji down to Ibule and finally settled by the stream named Olua in Ipogun from which the land in dispute derived its name Ugbo Olua.”
PW1, Chief Awoyemi Oginni testified as follows at pages 17 – 18 of the record:
“I know the plaintiff. We are the same family from Odunwo family; Odunwo family is plaintiff’s father’s family. I am not related to the plaintiff on his mother side. My father was the past Odunwo before the present one. The defendants are also from Odunwo like myself … I know the land in dispute called Igbo Oluwa … The owner of the land is Chief Akogun Owoeye who is the plaintiff’s father. It is not true that the land in dispute belongs to the forefathers of the defendants, I do not know their grandfather called Kupolarin (sic) but I have heard about him … The forefather of the plaintiff, Akogun took the forefather of the defendants to work for him on the land.” (Emphasis supplied)
Under cross-examination he stated thus:
”Chief Akogun Owoeye was the original owner of the land. After the death of Akogun Owoeye, Chief Aladesanmi Owoeye took over the land, it was not Akogun Owoeye that first came to the land.” (Emphasis supplied)
The plaintiff on his own part testified thus:
”The first owner of the land is Chief Fatokun, Fatokun got the site through war conquest. They came from Ile-Ife to Ile-Oluji and from there Ibule and later to Ipogun where he now settled. When Chief Fatokun got to Ipogun he settled near a stream called Oluwa and as such the forest there was called Igbo Oluwa.” (Emphasis supplied)
The respondents on the other hand pleaded in paragraphs 5 and 6 of their statement of defence:
5. The defendants aver that the subject matter in dispute is a large piece of land, which was acquired by the plaintiff and defendants ancestor known as late Chief Kumolarin Ojo who became the first Odunwo, a Chieftaincy title in Ipogun over 200 years ago.
6. The plaintiff and defendants ancestor, late Chief Kumolarin Oio acquired the land when it was virgin. He disvirgined the land and farmed on same several years before he died.
The appellants pleaded in paragraphs 4 and 5 of their reply to the statement of defence:
3. In further reply to paragraph 5 of the Statement of Defence the plaintiff avers … that Kumolarin was begat by Ajagboju not Ojo and Kumolarin was not at any time called or known as Ojo and was never at any time being (sic) an Odunwo, a Chieftaincy title in Ipogun at any year or 200 years ago but Adepetu who was the child of Kumolarin became Odunwo in Ipogun.
4. In reply to paragraph 6 of the statement of defence the plaintiff avers that the ancestor of the defendants was Fasayo not Kumolarin and Kumolarin was never a Chief at Ipogun or at anywhere when he was alive.”
DW1, Adegbera Zachaeus testified thus in support of the respondent’s pleading:
“The land in dispute is at Ipogun. It is called Igbo Oluwa. The land in dispute belongs to all of us, that is the parties and myself. Before the land became our own, it was owned by our father, Kumolarin Ojo who is now late. The late Kumolarin was the first to farm on the land when it was a forest.” (Emphasis supplied).
He was not cross-examined on his evidence that Kumolarin deforested the land.
DW3, Isaac Oyinlola (2nd defendant), testified thus:
“The dispute between the parties is on Igbo Oluwa land in Ipogun.
The land in dispute belongs to both the plaintiff and the defendants. The land in dispute originally belonged to Kumolarin Ojo who deforested the land. He was the first person to farm on it.” (Emphasis supplied).
He was also not cross-examined on this aspect of his evidence.
After considering the evidence of both parties on this preliminary issue, the learned trial Judge held at page 57 of the record:
“According to learned counsel for the plaintiff, the plaintiff is relying on traditional history in proof of his title to the land in dispute. Contrary to the evidence of the plaintiff that Fatokun was the first owner of the land in dispute, is the evidence of the PW1 under cross-examination that Chief Akogun Owoeye was the original owner of the land. Further under cross-examination, the PW1 averred that it was not Akogun Owoeye that first came to the land.
The contradiction in the evidence of the plaintiff and his only witness (the PW1) on the founder of the land in dispute makes the evidence of the plaintiff unbelievable that it was Fatokun that deforested the land in dispute. This is because where the evidence of a party on the same issue contradicts themselves, such evidence must be rejected…
The evidence of the 2nd defendant that Kumolarin Ojo was the original owner of the land in dispute being the first person to get there when it was still a reserve was corroborated by the evidence of the DW1 when he averred that the late Kumolarin Ojo was the first to farm on the land when it was a forest and the evidence of DW3 who testified that the land originally belonged to Kumolarin Ojo who deforested it, Secondly the evidence of DW1 and DW3 on the origin of the land in dispute was neither controverted nor challenged under cross-examination. Such evidence must therefore be believed … I do not believe the evidence of the plaintiff that Fatokun was the first settler on the land in dispute by conquest. I believe and accept the more credible evidence of the defendants that Kumolarin Ojo was the person that first settled on the land in dispute and thus deforested it.”
From the state of the pleadings and the evidence adduced by the respective parties, it is evident, as rightly held by the learned trial Judge that while the evidence led by the appellant and his witness was contradictory the evidence of the 2nd defendant (DW3) and his witness (DW1) was consistent, PW1 was not re-examined on the discrepancy in his evidence.
Learned counsel for the appellant argued that the respondents’ pleading refers to acquisition of the land by Kumolarin without stating how and from whom he acquired that land and that in their evidence they merely stated that the land originally belonged to him without stating how he came to be the original owner and who deforested the land, I have reproduced paragraphs 5 and 6 of the statement of defence above. The respondents clearly pleaded that their ancestor, Kumolarin Ojo, was the first to deforest the land, which was virgin land and farmed on it. Their oral evidence supported the averments. This complaint is therefore not borne out by the record. The learned trial Judge’s belief was well founded.
The respondents did not file a counter claim in this suit. Therefore the burden of proving his title to the land in dispute rested squarely on the appellant. See: Adekanbi V. Jangbon (supra). He was required to succeed on the strength of his own case. His evidence on who founded the land was indeed contradictory and the learned trial Judge was correct in according it no weight.
Learned counsel for the appellant has also contended that the learned trial Judge wrongly expunged the appellant’s evidence to the effect that Fatokun’s eldest daughter, Atunwase inherited the land in dispute form her father and in turn gave the land to her son, Kumolarin Ajagboju, on the ground that it was not pleaded. He urged the court to consider the averments in the amended statement of claim as a whole, particularly paragraphs 7 – 15 and 25 thereof and paragraph 3 of the reply to the statement of defence.
Paragraph 7 has been reproduced earlier. The remaining paragraphs are reproduced for ease of reference:
”8. The plaintiff avers that Fatokun had no male child as all his children were females; the eldest amongst them was Atunwase.
9. The plaintiff avers that Atunwase, being the eldest daughter inherited the farmland while other children (all female too) were given personal items such as beads, household goods and other moveable properties,
10. Meanwhile before Fatokun died, Atunwase, the first daughter had married Ajagboju both of whom begat Kumolarin.
11. Plaintiff avers that when Fatokun was still alive and since Fatokun had no male child who was directly his (safe his grandson) he had so much love for Kumolarin and used to take him (Kumolarin) to the farm with him.
12. Plaintiff avers that when Fatokun died and the land was given to Atunwase as the eldest daughter, Kumolarin continued to farm on his mother’s farmland.
13. Kumolarin continued farming, planting more cocoa trees, tapping palm kernel trees without any disturbance.
14. Plaintiff avers that before he died, Kumolarin had married one Ige who begat four children to wit Owoeye (plaintiffs father) and 3 other children namely Chief Adepetu Olisa, Samson Dada and Kelibe, a female.
15. Plaintiff avers and will lead evidence to show that upon the death of Kumolarin, Owoeye (the plaintiff’s father who was Kumolarin’s eldest child) inherited the farmland.
16. Plaintiff avers that during the lifetime of Owoeye (plaintiff’s father) Owoeye farmed on the land, harvested palm fruits and also built “EKUS” where palm oil was being made on the land. The mid “EKUS” are still on the farmland till today.
17. Plaintiff avers that when his father died in 1978, the plaintiff’s elder brother whose name was Aladesanmi Owoeye inherited the farmland and farmed on the land until when he died in 1987. Plaintiff will lead evidence to show that his late brother had labourers on the farmland who worked solely for his (Aladesanmi Owoeye), (sic)
18. Plaintiff avers that consequent upon the death of Aladesanmi Owoeye in 1987, plaintiff inherited the farmland without any hindrance,
25. The plaintiff avers and will lead evidence to show that as a mark of recognition of the ownership of the land by Kumolarin, Oyinlola was only permitted to harvest the crops he (Oyinlola) planted, not to work on the palm kernel and timber on the land.”
Paragraph 3 of the Reply to the statement of defence reads:
”3. The plaintiff avers in response to paragraph 5 of the statement of defence and admits that it is true that the land in dispute is a large piece of land but denies that the land was acquired by the plaintiff and defendants rather it was acquired by the plaintiff through his maternal side from his ancestor known as Kumolarin.”
In support of the above pleadings, the plaintiff testified inter alia as follows (page 20 of the record):
”When Fatokun died, his eldest daughter Atunwase inherited the land in dispute. When Atunwase inherited the land she gave it to her son, Ikumolarin.”
The learned trial Judge held at pages 58 and 59 of the record:
”The evidence of the plaintiff was that Fatokun’s daughter called Atunwase inherited the land in dispute from her father and she in turn gave the land to her son Kumolarin. There was nothing in the pleadings of the plaintiff to support the averment that Atunwase gave the land in dispute to Kumolarin, Parties are bound by their pleadings and evidence which is at variance with pleadings ought not to be admitted and if inadvertently admitted, the Judge has a duty to expunge such evidence from is record or at least not to use such evidence in coming to his decision, … As I am bound to do, I accordingly expunge the evidence of the plaintiff regarding the gift of the land in dispute to Kumolarin by Atunwase. The plaintiff has thus failed to trace the root of title of Kumolarin to Atunwase. The plaintiff who testified that Atunwase inherited the land in dispute from her father Fatokun also testified in the latter part of his evidence that Kumolarin inherited the land from Fatokun. The contradictions in the evidence of the plaintiff on who inherited the land from Fatokun make his evidence unbelievable. I therefore do not believe the evidence of the plaintiff that either Atunwase or Kumolarin inherited the land in dispute from Fatokun. The plaintiff has thus failed to link himself to the land in dispute.”
Learned counsel for the respondent agreed with this view of the learned trial Judge and submitted that where the claimant fails to link himself to the land he claims his claim to declaration of title by traditional evidence is bound to fail. He relied on: Odumosu Vs Oluwole (2004) FWLR (191) 1630 @ 1632: Akinloye V. Eyiyola (1958) NMLR 92: Mogaji V. Cadbury (Nig.) Ltd. (1985) 2 NWLR (7) 393.
I have examined the appellant’s pleadings reproduced above. I agree with the learned trial Judge that the fact of a gift of the land to Kumolarin by Atunwase was not pleaded. I am of the view that His Lordship properly expunged the evidence from the record. Furthermore, as pointed out by trial Judge was in error to have expunged the evidence from the record.
However, as pointed out by learned counsel for the respondents the appellant as plaintiff, gave contradictory evidence regarding the line of succession from Fatokun to Kumolarin. At page 20 of the record lines 7 -8, he testified thus:
”When Fatokun died, his eldest daughter, Atunwase inherited the land in dispute; When Atunwase inherited the land she gave it to her son, Ikumolarin”
However at page 22 line 24 and page 23 lines 1 and 2 he stated thus:
”It is not true that Kumolarin Ojo was the first owner of the land.
Kumolarin inherited the land from Fatokun.”
Again this evidence is clearly contradictory. The appellant therefore failed to establish a vital link in the particulars of intervening owners by credible evidence. Therefore even if the evidence regarding the gift of the land in dispute to Kumolarin by Atunwase had not been expunged, it would not have affected the finding of the learned trial Judge.
With regard to the contention of learned counsel for the appellant that certain aspects of the evidence of DW2 and DW4 should be expunged from the record for being at variance with their pleading, I refer to paragraph 21 of the statement of defence which reads:
”21. In answer to paragraphs 23, 24, 25 and 26 or the statement of claim, the defendants aver that the late Chief Kumolarin Ojo begat late Oyinlola, Oyinlola farmed on the disputed land with his father and when his father died he farmed on a portion of the disputed land which later belonged to him. The portion where late Oyinlola farmed that the defendants inherited after his demise.”
DW2 testified that he was a labourer to the 2nd respondent’s (Jacob Oyinlola’s) father on the land in dispute. The evidence supports the averment that Oyinlola’s descendants inherited and farmed on the portion of land where he farmed after his death. I do not agree with learned counsel for the appellant that the fact that DW2 was a labourer to the 2nd respondent’s father was a material fact that ought to have been pleaded. As rightly held by the learned trial Judge, only facts and not the evidence by which they are to be proved are required to be pleaded, DW4 testified that it was the father of the 3rd defendant that brought his father to the land in dispute and gave him a piece of land to farm on.
While I agree with learned counsel for the appellant that the evidence is not supported by paragraph 14 of the statement of defence as held by the learned trial Judge, I am of the view that it is in line with the respondents’ pleading in paragraphs 12 and 13 of their statement of defence to the effect that both the appellant’s family and the respondents’ families, as descendants of Chief Kumolarin Ojo farmed on their individual portions of the vast farmland. That Oyinlola who begat the 1s respondent and the fathers of the 2nd and 3rd respondents farmed on his own portion throughout his lifetime. In other words bringing the father of DW4 onto his own portion of the land established the fact that different members of the family exercised acts of ownership on the portions farmed upon by their ancestor. I hold that the evidence was rightly admitted.
The evidence of the appellant was that Kumolarin was Kumolarin Ajagboju and not Kumolarin Ojo. That he married only one wife called Ige Atunsemola who begat his own father Chief Akogun Owoeye. He testified that Ige had four children, namely his father, Chief Akogun Owoeye, Chief Olisa Adepetu, Samson Dada and Kelebe (a female). He stated that after the death of Chief Akogun Owoeye, his first son, Aladesanmi inherited the land in dispute. Aladesanmi was his elder brother. He farmed on the entire land and planted various cash crops. He stated that after Aladesanmi’s death, he inherited the land. He stated that Kumolarin and Oyinlola were friends and that Kumolarin invited Oyinlola to join him in farming on the land in dispute. He stated that Eruto, Ojokinle and Fatoki were married to Fagbohun, Osogbon and Fasayo respectively. That Fatoki and Fasayo begat Oyinlola. Ojokinle had three children, one of whom was Oginni the father of PW1 and the last Odunwo before the 1st respondent.
The defendants on the other hand contend that Kumolarin was the original owner of the land and that he had four wives, namely Eruto, Ojokinle, Fatoki and Ige. DW1 stated that Eruto begat Abraham Ajiki who was his own father, Abata and Eruwe. Ojokinle begat Oginni and Oshogbon, Fatoki begat Daniel Adefehinti, Chief Ojo Oloti and Oyinlola. Ige begat Oyinadeko, Chief Olisa Ojo (also known as Adepetu), Kenibe, Dada and Owoeye (the appellant’s father). He stated that Fatoki begat the father of the defendants. He testified that after Kumolarin Ojo’s death the children were farming on their respective portions of the land in dispute until the appellant began to claim the entire land as his own. The defendants are not challenging the appellant on the portion of land on which he farms.
”The 2nd defendant was not cross-examined at all on the number of wives Kumolarin had and as to their children. The plaintiff denied under cross-examination the suggestion that Kumolarin had four wives. The parties agreed that they all belong to the Odunwo family of Ipogun. The story told by the defendants is more in accord with that fact. The plaintiff did not tell this court the relationship of those he claimed married Eruto, Ojokinle and Fatoki with the Odunwo family. The plaintiff also admitted under cross-examination that he is from the same family with the defendants from his (plaintiffs) father’s side and that he is from Ige stock while the defendants are from Fatoki stock. The inference to be drawn from this is that both Ige and Fatoki were married to the same husband and this husband I find to be Kumolarin Ojo.
On a balance of probability I prefer and believe the more credible evidence of the defendants that Kumolarin had four wives and that Eruto, Ojokinle, Fatoki and Ige were the four wives, I do not believe the evidence of the plaintiff that Kumolarin had one wife and that Eruto, Ojokinle and Fatoki were married to other men, I find as a fact that Kumolarin was Kumolarin Ojo and not Kumolarin Ajagboju, I also find as a fact that the four wives of Kumolarin had the children ascribed to them by the 2nd defendant in his evidence.”
Having found earlier in this judgment that the evidence or traditional history given by the appellant was contradictory. I am of the view that the above finding of the learned trial Judge cannot be faulted.
Where a claimant relies on traditional evidence and fails to establish his root of title his claim for declaration based on such traditional history will fail.
The appellant argued that the learned trial Judge was wrong to hold that he failed to prove the custom that allowed him to inherit the land from his senior brother, Aladesanmi, when the said brother had children of his own and where the appellant himself was not the only surviving child of their father. Learned counsel argued that in paragraph 15 of the statement of defence, the respondents admitted the appellant’s pleading that he inherited the land from his brother, Aladesanmi. He also submitted that the defence witnesses, DW1 and DW3 had admitted under cross-examination that after Aladesanmi’s death, he (appellant) took over the part of the land that belonged to his father. Firstly, I have examined paragraph 15 of the statement of defence. It reads:
”After the death of the plaintiff’s father, Owoeye, the plaintiff’s brother and the plaintiff inherited the portion of the disputed land where their father farmed on during his lifetime and they are still farming on same without being disturbed by anybody.”
I do not agree with learned counsel for the appellant that this pleading is an admission that the appellant inherited the land in dispute from his brother. It states clearly that they both inherited their father’s portion and were both farming on it. In their evidence under cross-examination, referred to by learned counsel DW1 testified at page 27 of the record thus:
”After the death of Aladesanmi, the plaintiff took over part of the land in dispute which belonged to their father not the whole land in dispute.”
DW3 stated at page 30 thus:
”It is not true after the death of the plaintiffs father, one Aladesanmi Owoeye took over the land in dispute. He took over the portion of the land in dispute belonging to his father.”
These pieces of evidence cannot by any stretch of the imagination be construed as an admission that the appellant inherited the land in dispute upon the death of his elder brother.
It must be borne in mind that the issue in dispute between the parties is ownership of the entire expanse of farmland whose boundaries were pleaded by the appellant in paragraph 5 of his amended statement of claim. The respondents’ contention is that the land belongs to both families with members farming on the portions farmed upon by their individual forbears. The appellant claims exclusive ownership. The pleadings and evidence of the respondents was consistent with their position that whatever the appellant inherited was only a portion of the entire land in dispute. It would therefore not be correct to contend that the evidence regarding inheritance of the whole farmland from his brother Aladesanmi was unchallenged and ought to have been found to have been proved. I therefore agree with learned counsel for the respondents that His Lordship was right to question a custom that permits one brother to inherit from another when the deceased brother left behind children of his own and where the person claiming the inheritance is not the only surviving child of their late father.
The duty of the trial court was to consider the evidence led on either side and determine which appeared more credible. I am of the view that he properly carried out this duty in this case.
Another contention of the appellant is that the finding of the learned trial Judge that after the death of Kumolarin Ojo, his children and grandchildren were farming on their respective portions of the land and that the appellant did not at any time farm on the entire land is perverse in the absence of any evidence of partition of the land, He relied on the authority of Olorunfemi V. Asho (2000) 2 NWLR (643) 143 @ 163 D – F. Once again, the critical issue in this case is that the respondents did not file a counter claim. There was therefore no burden on them to prove their title. The appellant was to succeed on the strength of his own case and not on the weakness of the defence, if any. It was also not part of their defence that the land was partitioned. Their contention was that over time the parties continued to farm on portions of the land previously farmed by their fathers or grandfathers. The onus was on the appellant to prove on a preponderance of evidence that he owned the land exclusively.
Learned counsel for the appellant has argued that the learned trial Judge failed to give due consideration and weight to Exhibits P1 – P7 and erred in holding that they relate only to the portion which his father farmed upon. I have examined the exhibits. Exhibits P1 – P5 are agreements between the appellant and several labourers for the tapping of palm wine and the collection of palm fruits on what he described as “my farmland Igbo Olua Ipogun,” Exhibit P6 is “owner’s consent” issued by the appellant in favour of David Oyinlola to “fell one stump of Mahogani (Oganwo tree) at my farmland after he has fulfilled all that I required of him in my farmland at Igbo-Olua bush Ipogun.” Exhibit P7 is a tenancy agreement between the plaintiff and Mr. Dare Oyinlola. It is stated in the recital that the appellant as landlord is the owner by inheritance of the vast parcel of land situate at Igbo Oluwa Ipogun, Ondo State. The lease was in respect of a part of the farmland for the purpose of planting maize for one season. There is no description of the boundaries of the land in Exhibit P7 or of the portion leased to Mr. Oyinlola. The boundaries of “my farmland at Igbo-Olua Ipogun” in Exhibits P1 – P6 are not stated. The appellant did not tender a survey plan. Learned counsel submitted that no oral evidence could be relied upon to contradict, vary or alter the documentary evidence tendered, I agree that that is a correct statement of the law. However, I am inclined to agree with the learned trial Judge that there is nothing in the exhibits to show that the appellant owned and farmed the entire expanse farmland with the boundaries pleaded in paragraph 5 of the amended statement of claim to the exclusion of the respondents or other descendants of Kumolarin Ojo.
The final complaint of the appellant is that the learned trial Judge ought to have applied the rule in Kojo V. Bonsie (1957) 1 WLR 1223 to the facts of this case and failure to do so has occasioned a miscarriage of justice. As rightly submitted by both learned counsel, for the rule in Kojo II V. Bonsie to apply there must be two competing traditional histories, which are equally credible. The court would then proceed to test which of the two histories is more probable by reference to events in recent years as established by the evidence of the parties. Learned counsel for the respondents contends that there are no competing traditional histories, as the appellant failed to trace his root of title.
A party relying on evidence of traditional history must not only plead his root of title, he must show in his pleadings who those ancestors were and how they came to own and possess the land and eventually pass it to him. See: Okoko V. Dakolo (2006) 14 NWLR (1000) 401 @ 422 F – G; Eze V. Atasie (2000) 10 NWLR (676) 470: Alli V. Aleshinloye (2000) 6 NWLR (660) 177. Where witnesses of one party contradict each other on the traditional history relied oh, the trial court would be right to reject the traditional history, See: Obioha V. Duru (1994) 8 NWLR (365) 631 @ 650 E – F. Furthermore, in the case of Biariko V. Edeh-Ogwuile (2001) 4 SC (Pt. II) 96 @ 114 lines 20 -39; (2001) 12 NWLR (726) 235- the Supreme Court, following the decision in Obioha V. Duru (supra), held thus:
“It is not the law that once there are conflicts in the traditional/histories adduced, the court must promptly declare them inconclusive and thereupon proceed to consider recent acts. What indeed happens is that the case being one fought on hearsay upon hearsay, the trial court has a duty to find which of the two histories is more probable by testing it against other evidence in the case. It is when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership.”
See also: Okoko V. Dakolo (supra) at page 427 – 428 H – D.
Applying these authorities to the case at hand, I am of the view that the learned trial Judge having found that the evidence of traditional history led by the plaintiff and his sole witness was contradictory, had no duty to apply the rule in Kojo II V. Bonsie. He carefully examined the evidence before him and came to the conclusion that the traditional evidence led by the appellant was not credible. Notwithstanding this finding he went further and considered the totality of the evidence led by the appellant and found that he had failed to prove his claim, I have considered the various findings in the course of this judgment and found them to be supported by the evidence before the court. I find no reason to interfere with the said findings. This issue is accordingly resolved against the appellant.
In conclusion, I hold that the appeal lacks merit. It is hereby dismissed. The judgment of the High Court of Ondo State, sitting at Akure in Suit No. AK/226/2006 delivered on 7/7/08 dismissing the appellant’s claims is hereby affirmed. As this is a dispute between members of the same extended family, the parties shall bear their respective costs in the appeal.
CHINWE EUGENIA IYIZOBA, J.C.A: I read in advance the lead judgment just delivered by my learned brother, KEKERE-EKUN JCA. I agree with his reasoning and conclusion. I too find no merit in the appeal. I dismiss it and affirm the judgment of the lower court. I abide by the order made as to costs.
MOORE A. A. ADUMEIN, J.C.A: I had a preview of the Judgment just delivered by my learned brother, KUDIRAT M.O. KEKERE-EKUN, JCA. His Lordship has in a very comprehensive and unique manner dealt with the issues in this appeal. I agree with the reasons advanced by my learned brother in arriving at the conclusion that the appeal is devoid of merit. I also dismiss it and abide by all the orders in the lead judgment.
Appearances
F. OmotoshoFor Appellant
AND
Learned counsel for the Respondent absent.For Respondent
