SUARA OMOTEJI & ANOR v. MADAM MONILOLA AKINBAJO ASANKE & ANOR
(2012)LCN/5265(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of March, 2012
CA/I/164/2008
RATIO
LAND LAW: WAYS OF PROVING TITLE TO LAND
There are five ways of proving or establishing title to land or ownership of land. These are by:
(a) Traditional evidence;
(b) Production of documents duly authenticated;
(c) By positive acts of ownership extending sufficient over a length of time;
(d) By acts of long possession and enjoyment of the land;
(e) By 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.
The law is that the establishment of one of the five ways is sufficient proof of ownership. See NKADO V. OBIANO (1997) 5 NWLR Part 503 at 31; NKWO V. IBOE (1998) 7 NWLR Part 558 at 354; AYOOLA V. ODOFIN (1984) 11 SC 120; ADESANYA V. ADERONUMU (2000) 13 WRN Page 104; EWO V. ANI (2004) 17 NSCQR Page 36; NDUKUBA V. IZUNDU (2007) 1 NWLR Part 1016 at 432 AND AYANWALE V. ODUSANMI (2012) 3 WRN Page 1 at 19 lines 7 -35. PER MODUPE FASANMI, J.C.A
LAND LAW: WHAT CONSTITUTES TRESPASS
The evaluation of the evidence is quite sound because the slightest possession in the Plaintiff as in this case enables him to maintain an action for trespass if the Defendants cannot show a better title. See the case of ATUNRASE & ANOTHER V. ALHAJI MOJID SUNMOLA (alias Bako) & ANOR (1985) 1 NWLR Part 1 Page 105 and AMAKOR V. OBIEFUNA 91974) 3 SC Page 67. PER MODUPE FASANMI, J.C.A
LAND LAW: BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE
In a claim for declaration of title, the Plaintiff succeeds on the strength of his case and not on the weakness of the Defendants’ case. The onus lies on the Plaintiffs to satisfy the court on the evidence he adduced that he is entitled to a declaration of title. If the Plaintiff fails to discharge the onus his claim fails and his action is dismissed, See KODILINYE VS. ODU (2003) 36 W.R.N at 127 or (1976) 10 N.S.C.C. at 445; ABISI VS. EKWEALOR (1993) 6 N.W.L.R. Part 302 at 643; SALAMI VS. GBEDOLU (1997) 4 N.W.L.R. Part 49 at 377. PER MODUPE FASANMI, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. SUARA OMOTEJI
2. SULE OMOTEJI (FOR THEMSELVES)
AND ON BEHALF OF THE OMOTEJI FAMILY Appellant(s)
AND
1. MADAM MONILOLA AKINBAJO ASANKE
2. MR SALAMI AJAO (FOR THEMSELVES AND ON BEHALF OF THE ASANKE FAMILY) Respondent(s)
MODUPE FASANMI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Oyo State sitting in Ibadan delivered on the 2nd of October 2007.
The Respondents as Plaintiffs at the lower Court claimed against the Appellants who were Defendants as follows:
(a) Declaration that the Plaintiffs are the beneficial owner and entitled to the grant of Statutory Right of Occupancy in respect of the piece of land situate, lying and being at SW3/433 at Iyana Agbongbon, Idi Arere Area, along Molete-Oja’ba Road, Ibadan more particularly shown and demarcated on Survey Plan N9.KESH/Y/10240 dated 29th December 1983;
(b) Perpetual Injunction restraining the Defendants jointly and/or severally whether by themselves, their servants, agents, and/or privies or howsoever called or anyone claiming through them from disturbing Plaintiffs possession, trespassing or entering the land, selling, leasing or making use of the land in any way whatsoever;
(c) Cost of this suit.
The Appellants as Defendants Counter-claimed against the Respondents as Plaintiffs at the lower Court as follows:-
(a) Declaration that the Defendants are entitled to the Statutory Right of Occupancy in respect of the piece or parcel of land situate, lying and being at SW3/433, Omoteji Compound, Iyana Agbongbon along Molete-Ojaba Road, Ibadan whereof a Block of Shops is erected as shall be described on the Survey Plan to be drawn later;
(b) Perpetual Injunction restraining the Plaintiffs by themselves, their servants, agents and/or privies or howsoever called or anyone claiming through them from further trespassing on the land in dispute;
(c) Forfeiture of the Plaintiffs Blocks of Shops on the land in dispute
(d) Cost of this suit.
The Plaintiffs (Respondents) case is that they are the beneficial owner of the land in dispute. They traced their root of title to grant by Baale Elelubo (Yam Flour) before he became Baale of Ibadan in 1930.
They gave evidence of being in possession of the land in dispute from Baale Elelubo. They also claimed compensation when their house on the land in dispute was destroyed or demolished by the Oyo State Government for Ojaba-Molete Road construction. The remaining part of their inherited house was converted into shops facing the main road.
Appellants’ case is that their grandfather Mogaji Oke gratuitously granted the land in dispute to Adebisi who was the ancestors of the Respondents because Kosenatu Alaba who was the wife of Mogaji Oke was a friend to Abimbola who married Adebisi.
At the end of the trial, the learned trial Judge dismissed relief one of the Plaintiffs/Respondents and also dismissed reliefs 1-3 of the Defendants/Appellants counter claim. Dissatisfied with the decision, Appellants appealed to this Court vide notice of appeal dated 15th of October 2007 containing four grounds of appeal. Appellants further filed additional ground of appeal dated 30th of October 2007.
Appellants’ brief of argument is dated and filed on 16th of September 2008 but it was deemed properly filed on the 19th of November 2008.
From the grounds of appeal filed, Appellants distilled two issues for determination. They are:
(i) Whether the Honourable Trial Judge is competent to enter judgment in favour of the Respondents for trespass and perpetual on injunction when relief one on declaration of title has failed and was accordingly dismissed by the trial court and there is no claim for trespass before the Court.
(ii) whether the Honourable Trial Judge is right by dismissing the counter claim of the Appellants having regard to the pleadings and over whelming unchallenged, credible evidence of neutral or independent witnesses and exhibits that were tendered by the Appellants before the lower court.
Respondents did not file any brief. Appellants by a motion on notice dated and filed on 14/4/09 brought an application for the appeal to be heard on the Appellants brief alone for the failure of the Respondents to file their brief within the stipulated time allowed by the rules of court. The application was granted pursuant to the order of this court on the 8th of December 2009. For the hearing, Respondents were duly served with the hearing notice of the appeal.
ISSUE ONE
Whether the Honourable Trial Judge is competent to enter judgment in favour of the Respondents for trespass and perpetual injunction when relief one on declaration of title has failed and was accordingly dismissed by the trial court and there is no claim for trespass before the court.
Learned Counsel for the Appellants submitted that the main contention of the Respondents is that the land in dispute was granted to their ancestor Adebisi by Baale Elelubo (Yam Flour) before he became Baale Aleshinloye. He contended that the Respondents did not provide any credible evidence before the lower court to establish their claim. All the witnesses that the Respondents invited to testify (except the Surveyor) are members of the Appellants family. Submitted further that the lower court rightly dismissed the Respondents claim for declaration of title.
Learned Counsel for the Appellants argued further that the lower court fell into grievous errors and descended into the arena of land dispute when he entered judgment in favour of the Respondents for trespass when there is no claim for trespass before the court. He submitted that the lower court lacked jurisdiction to enter judgment in favour of the Respondents for trespass that is not before the court. He referred to the cases of OKUBOLA V. OYEBOLA (1990) 4 NWLR PART 147 PAGE 723, BOLA IGE V. OLUNLOYO (1984) 1 SC at 258; RANSOME KUTI V. A.G. FEDERATION (2001) FWLR PART 80 PAGE 1637 OR (1985) 2 NWLR PART 6 PAGE 211 AND NWONUMA NDIRIBE & 5 ORS V. NWOPARA OGBOGU & 7 ORS (1989) 5 NWLR PART 123 PAGE 599 AT 603 RATIO 14
where the court held that “a court does not grant to a Plaintiff a relief which he never sought”. He submitted that this is a serious error in law which has occasioned miscarriage of justice making the judgment liable to be reversed. He urged the court to resolve issue one in favour of the Appellants.
There are five ways of proving or establishing title to land or ownership of land. These are by:
(a) Traditional evidence;
(b) Production of documents duly authenticated;
(c) By positive acts of ownership extending sufficient over a length of time;
(d) By acts of long possession and enjoyment of the land;
(e) By 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.
The law is that the establishment of one of the five ways is sufficient proof of ownership. See NKADO V. OBIANO (1997) 5 NWLR Part 503 at 31; NKWO V. IBOE (1998) 7 NWLR Part 558 at 354; AYOOLA V. ODOFIN (1984) 11 SC 120; ADESANYA V. ADERONUMU (2000) 13 WRN Page 104; EWO V. ANI (2004) 17 NSCQR Page 36; NDUKUBA V. IZUNDU (2007) 1 NWLR Part 1016 at 432 AND AYANWALE V. ODUSANMI (2012) 3 WRN Page 1 at 19 lines 7 -35.
Where a claim for declaration of title to Land is based on traditional history claimant needs to adduce cogent and conclusive evidence of tradition.In the case at hand, the learned trial Judge at pages 97-93 of the record had this to say in his evaluation:
“On the plaintiffs side, the traditional evidence given by PWS 2- 6 without calling somebody from Baba Elelubo or Baale Aleshinloye Abass Olubadan of Ibadan was not good enough. After giving careful consideration to the story of PWs 2- 6, I am of the opinion that at least somebody like PW2 ought to be able to call somebody from Baba Elelubo later Baale of Ibadan Aleshinloye Abass to testify as to the grant and how Baba Elelubo came to own the area in dispute. Plaintiffs copiously pleaded his title in paragraphs 7 – 21 of their statement of claim and relief on Baba Elelubo Aleshinloye as his source of title. The plaintiffs did not lead satisfactory evidence showing established
grant from their grantor. Is it through conquest, deforestation, or virgin land which will be within the knowledge of Baba Elelubo.”
The court went further to state at page 99 of the record thus:
“The finding of facts in this case is that neither party succeeds in proving the case by traditional history nor by production of documents of title thereto. None is probable. I am however satisfied that the plaintiffs succeeds in proving one of the ways to title by acts of long possession and acts of enjoyment of the land and renting it out e.g. building of exhibit P2 destroyed by Oyo State Government for road constructions of shop in the area, possession and burying of their dead families and aged parents of the plaintiffs at the area in dispute. The D.w8 admitted the existence of the Plaintiffs family at the area in dispute for a long time immemorial and payment of compensation to the family of the Plaintiffs for the road construction and destruction of the plaintiffs family house. It appears to me, and I so find that the plaintiffs successfully established numerous and positive act of ownership and possession sufficient in my view to hold that the land in dispute belongs to the Plaintiffs. It is for the Defendants to disprove the long possession by the plaintiffs family which D.W8 admitted. I quote.”
The evaluation of the evidence is quite sound because the slightest possession in the Plaintiff as in this case enables him to maintain an action for trespass if the Defendants cannot show a better title. See the case of ATUNRASE & ANOTHER V. ALHAJI MOJID SUNMOLA (alias Bako) & ANOR (1985) 1 NWLR Part 1 Page 105 and AMAKOR V. OBIEFUNA 91974) 3 SC Page 67. Respondents have proved acts of long possession and acts of enjoyment of the land by renting it out, they buried their dead parents on the land in dispute. D.W8 admitted the existence of the Respondents at the area in dispute for a long time. The Respondents were also paid compensation for the destruction of the Respondents’ family house which was part of the land in dispute during the road construction by OYSG. I am in tandem with the learned trial Judge that the Respondents have shown long exclusive possession than that of the Appellants.
The submission of the learned Counsel for the Appellants that Respondents did not claim for trespass at the lower court is misconceived.
The Respondents claim on injunction for the avoidance of doubt says:
“Perpetual Injunction restraining the Defendants jointly and/or severally whether by themselves, their servants, agent and/or privies or howsoever called or anyone claiming through them from disturbing Plaintiffs possession, trespassing or entering the land, selling, leasing or making use of the land in anyway whatsoever”.
The underlining of trespass in that claim is mine for emphasis. Any form of possession is sufficient to maintain an action for trespass against a wrong doer so long as it is clear and exclusive. Trespass is actionable at
the suit of the person in possession of the land and that person can sue
even if he is neither the owner, nor a privy of the owner. See AMAKOR V. OBIEFUNA 91974) 1 ALL NLR Part 1 Page 119 at 120 lines 5-7 and ATUNRASE V. SUNMOLA supra. Contrary to the lower courts, evaluation, it is not necessary to call a member of the grantor’s family to prove a grant. See ISHOLA V. OGUNJIMI (1974) 4 UILR PART 1 AT PAGE 1. It is therefore not necessary to invite any witness from Baale Elelubo or Baale Aleshinloye family on the grant to the Respondents.
Appellants’ submission that the lower court granted a relief for trespass which was not claimed by the Respondents is therefore misconceived.
Issue one is hereby resolved against the Appellants.
ISSUE TWO
Whether the Honourable Trial Judge is right by dismissing the counter claim of the Appellants having regard to the pleadings and over whelming unchallenged credible evidence of neutral or independent witnesses and exhibits that were tendered by the Appellants before the lower court.
Learned Counsel for the Appellants submitted that paragraphs 9, 10, 11,16 and 17 of the Statement of Defence and Counter Claim clearly stated that Mogaji Oke gratuitously granted the land in dispute to Adebisi who was the ancestors of the Respondents because Kosenatu Alaba who was the wife of Mogaji Oke (grandfather of the Appellants was a friend to Abimbola who married Adebisi (grandfather) of the Respondents. He submitted further that the Respondents averments are direct denial of the overlord’s title of the Appellants and their ancestors to the land in dispute by setting up a rival title (i.e. grant from Baale Elelubo (yam Flour) or later on Baale Aleshinloye against the overlords title of the Appellants. He submitted that Respondents did not invite any witness from Baale Elelubo or Baale Aleshinloye family on the purported grant. Submitted further that where the evidence of a party has not been controverted by the adverse party, such evidence ought to be accepted by the court. Reliance was placed on the case of MOGAJI & OTHERS V. ODOFIN & OTHERS (1978) 4 SC Page 91 at 93-95. He submitted further that the Respondents having been in possession of the land in dispute for a long time is untenable in law. Submitted that no duration of possession of land by a Customary tenant under the Yoruba Native Law and Custom will ripen possession into ownership. He relied on the cases of DOKUNBO v. OMONI (1999) 8 NWLR Part 616 PaGE 647; AKINLOYE & ANOTHER V. EYIYIOLA 7 OTHERS 919680 NMLR AT 92 and MENSAH V. GRANT 14 WACA at 726.
Learned Counsel for the Appellant urged the court to set aside the judgment of the lower court and enter judgment for the Appellants on reliefs 1-3 of the counter claim and allow this appeal.
In a claim for declaration of title, the Plaintiff succeeds on the strength of his case and not on the weakness of the Defendants’ case. The onus lies on the Plaintiffs to satisfy the court on the evidence he adduced that he is entitled to a declaration of title. If the Plaintiff fails to discharge the onus his claim fails and his action is dismissed, See KODILINYE VS. ODU (2003) 36 W.R.N at 127 or (1976) 10 N.S.C.C. at 445; ABISI VS. EKWEALOR (1993) 6 N.W.L.R. Part 302 at 643; SALAMI VS. GBEDOLU (1997) 4 N.W.L.R. Part 49 at 377.
In the instant case Appellant has the onus to satisfy the court on the evidence he adduced that he is entitled to a declaration of title in his counter claim. It is no defence by the Appellants that the Respondents did not invite any witness from Baale Elelubo or Baale Aleshinloye family on the grant to the Respondents. The submission of the Appellants Counsel that no duration of possession of land by a customary tenant under the Yoruba Native Law and Custom will ripen such possession into ownership is the law but it is not applicable to the situation at hand because Respondents were never tenants of the Appellants from the evidence on the printed record. The lower court put the evidence called by the Respondents and the Appellants on either side of imaginary balance and weigh them together as it was laid down in the locus classicus case of MOGAJI & OTHERS VS. ODOFIN & OTHERS supra and found that:
“Neither party succeeds in proving the case by traditional history nor by production of document of title thereto. I am however satisfied that the Plaintiffs succeeds in proving one of the ways of title by acts of long possession and acts of enjoyment of the land and renting it out e.g. building of exhibits P2 destroyed by Oyo state Government for road construction, burial of their dead at the area in dispute and construction of shops in the area.”
It further found at page 99 of the record that:
“The evidence called by the Defendants in support of traditional history pleaded was unreliable as to the genealogical tree after Omoteji. who are the children of Omoteji until it reached the 3 pleaded Mogajis. No evidence of grant was admitted by the Plaintiffs family. Is the grant by cash/kind and whether tributes paid to the family in form of tribute.”
The lower court granted possession to the Respondents because the Appellants were unable to prove their title to the area in dispute. The findings of the lower court are sound and not perverse. In the circumstance, this court will not set aside the judgment but affirm it. Issue 2 is resolved against the Appellant.
In the light of all that I have said, the appeal is devoid of merit and it is hereby dismissed. The judgment of the lower court delivered on the 2nd of October 2007 is hereby affirmed. N30,000:00k cost is awarded in favour of the Respondents against the Appellants.
STANLEY SHENKO ALAGOA, J.C.A., OFR I have had the privilege of reading before now the judgment just delivered by my learned brother, Fasanmi (J.C.A.). I agree with the reasoning and conclusion reached that the appeal lacks merit and should be dismissed. I dismiss same and abide by the consequential orders made in the lead judgment including the order on costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had a preview of the judgment read by my learned brother, FASANMI, J.C.A., I entirely agree with the reasons given and the conclusion reached in the judgment. Accordingly I too will dismiss the appeal in its entirety and affirm the decision of the lower court delivered on the 2nd of October 2007. N30, 000.00 costs is awarded in favour of the respondents.
Appearances
A. O. AROBOFor Appellant
AND
Respondents absent and not represented but served.For Respondent
