TIAMIYU OGUNYOMI & ANOR. v. OLADOSU OGUNDIPE & ANOR.
(2010)LCN/3712(CA)
In The Court of Appeal of Nigeria
On Monday, the 19th day of April, 2010
CA/I/183/2000
RATIO
LAND LAW: BURDEN OF PROOF IN LAND MATTERS
It is the duty of the Appellants as Plaintiffs in the lower court to prove their case on the balance of probabilities and it is a notorious principle of law that in so doing they must rely in order to succeed on the strength of their own case and not on the weakness of the defendants’ (now Respondents) case. See J. M. KODILINYE V. MBANEFO ODU (1935) 2 WACA 336 at 337. PER STANLEY SHENKO ALAGOA, J.C.A.
LAND LAW: WAYS OF PROVING TITLE TO LAND
With respect to title to land the law stipulates any of five methods of proof as correctly identified by the learned trial Judge. These are –
- Proof by traditional evidence.
- Proof by production of documents of title duly authenticated unless they are documents twenty or more years old produced from proper custody.
- Proof by acts of ownership in and over the land in dispute such as selling, leasing and making grant or farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough to warrant the inference that the person exercising such proprietary acts are the true owners of the land.
- Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership not only of the particular piece of land with reference to which such acts are done but also of other lands situated or connected therewith by locality or similarity that the presumption under section 46 of the Evidence Act applies and the inference can be drawn that what is true of one piece of land is likely to be true of the other piece of land.
- Proof by possession 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.
This legal principle is very well illustrated in the case of D. O. IDUNDUN & 6 ORS (for themselves and on behalf of the Itsekiri people) v. DANIEL OKUMAGBA (for himself and on behalf of Olodi, Oki and Ighogbadu families of Idimisobo, Okere, Warri) (1976) 9-10 S.C. 227 pages 246-250. This case spells out and appreciably discusses each of the five requirements of proof of title to land as already highlighted above. See generally on this subject matter the following cases – ADEDIBU V. ADEWOYIN 13 WACA 191 at 192; JOHNSON V. LAWANSON (1971) 1 ALL NLR page 56; EKPO V. ITA II NLR 68; DA COSTA V. IKOMI (1968) 1 ALL NLR 394 at 398. PER STANLEY SHENKO ALAGOA, J.C.A.
LAND LAW: DUTY OF A CLAIMANT FOR TITLE TO LAND TO PROVE CLEARLY THE AREA OF LAND
However, a necessary first step and a vital one at that is for a party so asserting that a piece or parcel of land belongs to him not merely to plead but also prove clearly the area of land to which his claim relates as well as the exact location and boundaries of the land claimed.
In ATE KWADZO V. ROBERT KWASI ADJEI (1944) 10 WACA 274 the West African Court of Appeal had this to say:
“This court has repeatedly pointed out that before a declaration of title should be given the area of land to which it relates must be ascertained with certainty.”
The exact location and the boundaries of the land must be ascertained. See the following cases in point – OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (Pt.95) 26 at 42; AWOYOOLA V. ARO (2006) 18 WRN 2; (2006) 4 NWLR (Pt.971) 481 at 498; OGEDENGBE V. BALOGUN (2007) 9 NWLR (Pt.1039) 380 at 393, 404; AKINOLU BARUWA V. OGUNSOLA & ORS. (1938) 4 WACA 159. My understanding of this requirement is that before delving into any of the five methods of proof of title to land already highlighted, the party so laying claim to the piece or parcel of land in dispute must prove with utmost certainty that his description of the land with respect to its location, boundaries and size is unassailable. How well have the Appellants discharged this onus on the strength of the case presented by them and not on the weakness of the case of their adversaries PER STANLEY SHENKO ALAGOA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. TIAMIYU OGUNYOMI
2. TIJANI OGUNYOMI Appellant(s)
AND
1. OLADOSU OGUNDIPE
2. JIMO OGUNDIPE Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment).: This is an appeal against the judgment of J. O. Bada J. of the High Court of Justice Ila Orangun, in the Ila Orangun Judicial Division of Osun State of Nigeria in Suit No. HLR/29/93 TIAMIYU OGUNYOMI & ANOR (For themselves and on behalf of the Olode Ogunyomi family) v. Oladosu Ogundipe & anor delivered on the 23rd October, 1997. In the said Suit, the present Appellants as Plaintiffs had by paragraph 19 of their amended statement of claim and plan dated the 8th May, 1996 claimed against the Respondents as Defendants and as per their writ of summons as follows:
(a) Declaration that the Plaintiffs are entitled to the customary right of occupancy of the piece or parcel of land situate, lying and being at Otowu Village, Aran Orin road, Ila Orangun and it is edged RED on plan No: OS/0560/94/L.103 drawn by I. O. Aiyegbayo licensed surveyor on 30/3/94.
(b) The sum of N20, 000:00 being special and general damages for trespass committed on the said piece or parcel of land on or about 1st May, 1990 which trespass still continues.
(c) Perpetual injunction restraining the Defendants, their servants, agents, privies or anyone claiming through or under them from further acts of trespass to the said piece or parcel of land.
Briefly the case for the Appellants as Plaintiffs in the court below as can be gleaned from the Amended Statement of Claim and plan at pages 32-34 of the Record of Appeal and paragraphs 2.00 at page 1 paragraphs 2.09 at page 2 of the Appellant’s Brief of Argument is as follows:-
The Plaintiffs are farmers and the land in dispute is situate at Oluode Ogunyomi Otewu Village Aran Orin Road, Ila Orangun. One Ogunyomi Alade a great warrior, hunter and ancestor of the Plaintiffs settled on the land in dispute as a virgin forest during the reign of Orangun Agboluaje and farmed extensively on the land growing economic and food crops and establishing a village called Oluode Ogunyomi village on the land in dispute. Ogunyomi Alade farmed on the said land alone for seven years and two months before he introduced his many children to the said farmland. His exclusive ownership in possession of the land in dispute was affirmed by the Ila Native Authority in 1952 and thereafter by Oba William Ayeni the Orangun of Ila in 1972 and in further exercise of their right of ownership of the land in dispute the descendants of Ogunyomi Alade allotted portions thereof to several customary tenants who farmed thereon without any let from anyone at all. In May 1990, the Defendants trespassed on the land damaging the crops thereon and laying unfounded claim to a portion of the land.
The Respondents as Defendants in their Amended Statement of Defence and Plan dated the 16th June, 1995 at pages 22-24 of the Record of appeal and paragraphs 3.01 – 3.04 at page 3 of the Respondents’ Brief of Argument have also stated their own case laying claim to the land in dispute which is that the land in dispute formed part of the land granted to Ogunlolu their ancestor as a virgin unoccupied forest land at Otewu by the Orangun of Ila, Oba Olajobi Agboluaje J. Ogunlolu farmed on this and the remaining part of the land cultivating cash and food crops and on his demise, the whole farm including the one in dispute devolved on his children according to native law and custom and later to the descendants of these children who were exercising right of ownership over the farmland by farming thereon and placing tenants on the farmland. Pleadings having been exchanged, the case went on to be heard.
The 1st Plaintiff and ten witnesses gave evidence on behalf of the Plaintiffs while three witnesses gave evidence on behalf of the Defendants. At the conclusion of evidence by the parties, learned counsel on both sides addressed court and in a considered judgment delivered on the 23rd October, 1997 the Court found in favour of the Defendants and dismissed the Plaintiff’s claim in its entirety.
Dissatisfied with this judgment, the Plaintiffs appealed against same by filing a Notice of Appeal dated the 29th October, 1997 and filed on the 17th November, 1997 and which is contained at pages 109-111 of the Record of Appeal. The said Notice of Appeal consists of four Grounds of Appeal stated hereunder devoid of particulars-
1. The decision is against the weight of evidence.
2. The learned trial Judge erred in law and on the facts when in dismissing the Plaintiff’s claim he held that –
“It is my view that the Plaintiffs are not entitled to the customary right of occupancy of the piece or parcel of land situate, lying and being at Otewu village, Aran-orin road, Ila Orangun.”
When the evidence adduced by the Plaintiffs clearly supported the case of the Plaintiffs as to title and possession.
3. The learned trial Judge erred in law and on the facts (sic) held as follows:
“It is settled law that where two parties claim to be in possession the law ascribes possession to the one with better title.”
When from the evidence before the court only the Plaintiffs led evidence of title, the defendants even though pleaded title led no shred of evidence in buttress thereof but completely abandoned the averment in his pleadings.
4. The learned trial Judge lacked jurisdiction to adjudicate on the matter in which the Plaintiff’s claim declaration to Customary Right of Occupancy.
5. Further grounds of appeal shall be filed upon receipt of the Records.
Subsequently, the Appellants brought a motion on Notice dated the 22nd September, 2003 and filed on the 23rd September, 2003 pursuant to Order 3 Rule 2(5) of the Court of Appeal Rules and the inherent jurisdiction of this court for the following orders:
(a) Extension of time for leave within which to apply for extension of time within which to file and argue additional grounds of appeal.
(b) Extension of time for leave within which to file and argue additional grounds of appeal as shown in the additional grounds of appeal attached herewith.
(c) To deem the additional grounds of appeal filed along with this motion duly and properly filed and served.
(d) And for such further order or orders as this court may deem fit to make in the circumstances.
From available records the motion was moved and granted by this Court on the 24th September, 2003, the effect of the grant being that the following additional grounds of appeal filed along with this motion were deemed properly filed and served on that day. They are as follows shorn of particulars:
ADDITIONAL GROUNDS OF APPEAL
1. The learned trial Judge erred in law and on the facts by awarding customary right of possession to the defendants who did not counter-claim nor asked for any specific remedy.
2. The learned trial Judge erred in law and on the facts by conveniently shifting from the root of title pleaded but unproven of the defendants on a grant by Orangun to possession thereby awarding possession of the land in dispute to the defendants.
3. The learned trial Judge erred in law and on the facts by awarding possession of the land in dispute to the defendants when the Plaintiffs established better right to possession thereof.
Parties filed and served their respective Briefs of Argument in accordance with the Rules of this Court. The Appellant’s Brief of Argument is dated the 29th September, 2003 and was filed on the 22nd October, 2003. Upon receipt of the Respondents’ Brief of Argument, Appellants being already out of time to file their reply brief brought a motion on Notice dated 2nd August, 2007 and filed on the 16th August, 2007 for:
(a) An order for extension of time to file Reply Brief and
(b) Deeming the Reply Brief already filed and served on the Respondent as properly so filed and served.
The application was moved and granted by this Court on the 24th January, 2008. Distilled by the Appellants in paragraph 3.01 at page 3 – paragraph 3.06 at page 4 of their Brief of Argument from the grounds of appeal contained in the original Notice of Appeal and the additional grounds of appeal are the following issues-
3.01 Whether the learned trial Judge was right by dismissing the Plaintiff’s claim in its entirety when the Plaintiff led credible and cogent evidence in support of his claim.
3.02 Whether the lower court was right by adjudging the Defendants owners of the land in dispute when the Defendants neglected to counterclaim the land in dispute.
3.03 Whether the lower court was right by adjudging the Defendants owners of the land in dispute when the Defendants led no iota of evidence in proof of the grant upon which they relied in their pleadings.
3.04 Whether the lower court was right by shifting the basis of the Defendants’ root of title from a grant by Oba Olujobi Agboluaje 1 to acts of possession the defendants having failed to adduce any evidence in support of the grant.
3.05 Whether the lower court was (sic) by awarding possession to the Defendants when the Plaintiff was in possession of the land and the Defendants failed to adduce evidence showing better title to possession.
3.06 Whether the lower court was right by awarding possession to the Defendants on the preponderance of evidence when the evidence adduced by the Plaintiff clearly outweighs that of the defendants.
The Respondents being out of time in filing their Brief of Argument brought a motion on Notice dated the 18th April, 2006 and filed on the 19th April, 2006 pursuant to Order 3 Rule 4 of the Court of Appeal Rules for an order to so file and serve the Respondent’s Brief. The motion on Notice was moved and granted by this Court on the 22nd March, 2007 and the Respondent’s Brief was deemed filed on the 22nd March, 2007.
The Respondents have in paragraphs 4.01 and 4.02 at page 4 of their Brief of Argument formulated the following two issues from the grounds of appeal contained in the original Notice of Appeal and the additional grounds of appeal as follows:
4.01 Whether or not the Plaintiffs have proved their case in view of their claim as contained in the Amended Statement of claim and plan and the evidence led before the learned trial Judge.
4.02 Whether or not the learned trial Judge was right in dismissing the Plaintiffs’ claims when they failed to prove their case having regard to their Amended Statement of claim and plan and the evidence before the Court.
The appeal came up for hearing on the 26th January, 2010. A. Aiyedun Counsel for the Appellants adopted and relied on the Appellant’s Brief of Argument and urged this Court to allow the appeal while Z. O. Alayinde Counsel for the Respondents also adopted and relied on the Respondent’s Brief of Argument and urged this Court to dismiss the appeal.
The Supreme Court has consistently frowned at the proliferation of issues for determination by appellate courts while a few issues will suffice. Even more ludicrous is the formulation of more issues than grounds contained in the Notice of Appeal.
I think that the sole issue for determination in this appeal is:
Whether from the totality of the evidence adduced and evaluation of same, the Appellants as Plaintiffs are entitled to the customary right of occupancy of the piece or parcel of land situate, lying and being at Otewu Village, Aran Orin Road, Ila Orangun edged red in Plan No. OS/0560/94/L/03 of the 30th March, 1994.
The Appellants have submitted in their Brief of Argument that as Plaintiffs they adduced evidence from ten witnesses while the 1st Plaintiff also testified and in the process tendered inter alia Exhibit A which is a plan of the land in dispute; Exhibits B, C and D which are agreements dated 14/3/72, 29/5/52 and 13/3/51 respectively and Exhibit E which is a plan dated 24/3/95. The Appellants went on to say that cogent evidence was adduced in proof of title and in support of possession of the land in dispute by the Plaintiff’s family and that Plaintiffs’ witnesses also testified to the exercise by the Plaintiffs of their right of ownership of the land in dispute.
Appellants went further to say that ownership of land can be established in a number of ways such as by grant, by settlement, possessions etc. Reference was made to the following cases – IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227; ATANDA V. AJANI (1989) 5 NWLR (Pt.111) 511; OGUNNAIKE V. OLUYEMI (1987) 3 SC 215.
Appellants went on to give a brief summary of the evidence of each of the Plaintiffs’ witnesses in proof of Appellants’ title to the land in dispute. It was the contention of the Appellants that the Respondents filed no counter claim and the lower trial court not being a father xmas wrongly awarded to the Respondents as Defendants the remedy of possession which was not asked for. Reference was made to the following cases to buttress the point – JOE GOLDAY V. CO-OPERATIVE AND COMMERCE BANK LTD (2003) 2 SCNJ 90; SALUBI V. NWARIAKU (2003) 2 SCNJ 47 at 51; EZEWA V. OKO (1999) 14 NWLR (Pt.100) Page 95; UDO V. OKUPA (1991) 5 NWLR (Pt.111) Page 365; EKPEZE V. NDEM (1991) 6 NWLR (Pt.196) Page 229. Appellants went further to submit that none of the Respondents’ witnesses gave any convincing evidence of ownership by the Respondents of the land in dispute in line with any of the five methods or modes by which ownership of land can be established and that it is trite law that in a declaration of title to land, a person cannot plead one thing and claim another. Reliance was placed on IGWESHI V. ATU & ORS (1993) 6 NWLR (Pt.300) Page 484, noting that the Respondents are bound by their pleadings in the court below and did not adduce any iota of evidence either by themselves or through any witnesses in respect of the grant by Orangun Agboluaje as pleaded by the Respondents, the effect in law being that that averment in the Respondent’s pleadings as Defendants had been abandoned.
The Appellants posited that the true exposition of the law in respect of civil matters is that it is decided on the preponderance of evidence or on the balance of probability.
Reliance was placed on CHIEF VICTOR WOLUCHEM & ORS V. CHIEF SIMON GUDI & ORS (1981) 5 SC 291 at 308.
Respondents have submitted in their Brief of Argument that it is trite law that on a claim for declaration of right to land, the onus is on the Plaintiff to prove his claim on the strength of his case. AKINOLA V. OLUWO (1962) All NLR 225; M. O. ODESANYA V. EWEDEMI (1962) All NLR 318 and KODILINYE V. OOU (1935) 2 WACA 336 were relied upon. Respondents alluded to the fact that the Appellants called ten witnesses while the 1st Plaintiff also gave evidence.
Respondents went on to submit that the 1st Plaintiff in his evidence gave boundaries of the land in dispute at pages 74-76 of the Records and that under cross-examination the 1st Plaintiff gave conflicting evidence of the boundaries of the land in dispute. Relying on AKINOLU V. OGUNSOLA & ORS 4 WACA 159, Respondents submitted that the first duty of a Plaintiff who comes to Court to claim a declaration of title must show the Court clearly the area of land to which his claim relates. Counsel for the Respondents also relied on ATE KWADZO V. ROBERT KWASHI ADJEI 10 WACA 274 where it was held that before a declaration of title is given, the land to which it relates must be ascertained with certainty. The Respondents submitted that the Appellants as Plaintiffs in the court below having given contradictory boundaries of the land in dispute in 1st Plaintiff’s evidence-in-chief and under cross examination have failed to identify the land with certainty and have therefore failed to prove their case. Reliance was further placed on the following cases – DAWODU V. GOMEZ (1947) 12 WACA 15; MARK UGBO & ORS V. ANTHONY ABURIME (1994) 9 SCNJ 23; AHWEDJO EFETIROROJE & 2 ORS V. HIS HIGHNESS ONEME OKPALEFE II (1991) 7 SCNJ 85 at 95. Where there is such failure on the part of the Plaintiff to prove the boundaries of the land, the proper order for the Court to make, according to the Respondents is an order for dismissal of the claim. DAWODU V. GOMEZ (supra) and OLUWI V. ENIOLA (1967) NMLR 339 were relied upon. Respondents’ counsel went on further to submit that in a claim for declaration of title to land, the Plaintiff must rely on the strength of his case and not on the weakness of the Defendant’s case and that if this onus is not discharged by the Plaintiff, the weakness of the Defendant’s case will not help him and that the proper judgment is for the Defendant. KODILINYE V. ODU (supra) was relied upon. Respondents went on to submit that the evidence of 4th PW & 8th PW support the Respondents’ case.
Replying on points of law Appellants submitted that having filed a clear and comprehensive plan showing all the features of the land in dispute together with the boundaries and having led cogent and credible evidence, Appellants are entitled to succeed. Reliance was placed on ALHAJI OLOKOTINTIN V. SARUMI (2002) 7 SCNJ 182 at 183; AWOYOOLA V. ARO (2006) 2 SCNJ page 44 at page 56. Appellants went further to submit that the presence of the Respondents or other agents on a portion of the land in dispute does not in law constitute an admission of possession but one of encroachment on the part of the Respondents and the failure of the lower court to consider the facts of the case in line with the law constituted a miscarriage of justice.
It is the duty of the Appellants as Plaintiffs in the lower court to prove their case on the balance of probabilities and it is a notorious principle of law that in so doing they must rely in order to succeed on the strength of their own case and not on the weakness of the defendants’ (now Respondents) case. See J. M. KODILINYE V. MBANEFO ODU (1935) 2 WACA 336 at 337. With respect to title to land the law stipulates any of five methods of proof as correctly identified by the learned trial Judge. These are –
1. Proof by traditional evidence.
2. Proof by production of documents of title duly authenticated unless they are documents twenty or more years old produced from proper custody.
3. Proof by acts of ownership in and over the land in dispute such as selling, leasing and making grant or farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough to warrant the inference that the person exercising such proprietary acts are the true owners of the land.
4. Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership not only of the particular piece of land with reference to which such acts are done but also of other lands situated or connected therewith by locality or similarity that the presumption under section 46 of the Evidence Act applies and the inference can be drawn that what is true of one piece of land is likely to be true of the other piece of land.
5. Proof by possession 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.
This legal principle is very well illustrated in the case of D. O. IDUNDUN & 6 ORS (for themselves and on behalf of the Itsekiri people) v. DANIEL OKUMAGBA (for himself and on behalf of Olodi, Oki and Ighogbadu families of Idimisobo, Okere, Warri) (1976) 9-10 S.C. 227 pages 246-250. This case spells out and appreciably discusses each of the five requirements of proof of title to land as already highlighted above. See generally on this subject matter the following cases – ADEDIBU V. ADEWOYIN 13 WACA 191 at 192; JOHNSON V. LAWANSON (1971) 1 ALL NLR page 56; EKPO V. ITA II NLR 68; DA COSTA V. IKOMI (1968) 1 ALL NLR 394 at 398. However, a necessary first step and a vital one at that is for a party so asserting that a piece or parcel of land belongs to him not merely to plead but also prove clearly the area of land to which his claim relates as well as the exact location and boundaries of the land claimed.
In ATE KWADZO V. ROBERT KWASI ADJEI (1944) 10 WACA 274 the West African Court of Appeal had this to say:
“This court has repeatedly pointed out that before a declaration of title should be given the area of land to which it relates must be ascertained with certainty.”
The exact location and the boundaries of the land must be ascertained. See the following cases in point – OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (Pt.95) 26 at 42; AWOYOOLA V. ARO (2006) 18 WRN 2; (2006) 4 NWLR (Pt.971) 481 at 498; OGEDENGBE V. BALOGUN (2007) 9 NWLR (Pt.1039) 380 at 393, 404; AKINOLU BARUWA V. OGUNSOLA & ORS. (1938) 4 WACA 159. My understanding of this requirement is that before delving into any of the five methods of proof of title to land already highlighted, the party so laying claim to the piece or parcel of land in dispute must prove with utmost certainty that his description of the land with respect to its location, boundaries and size is unassailable. How well have the Appellants discharged this onus on the strength of the case presented by them and not on the weakness of the case of their adversaries?
Heavy weather has been made by the Respondents on the evidence of 1st PW in the court below who was undoubtedly the most important of the eleven witnesses called by the plaintiffs to substantiate their claim to the land in dispute. In the course of examination-in-chief the 1st PW Tiamiyu Ogunyomi who testified that the land in dispute belonged to his father gave the following evidence with respect to the boundaries of the land in dispute-
1st side by Olotu family land;
2nd side by Enle family land;
3rd side by Ogunlolu family land;
4th side by Ejemwa family land;
5th side by a Road.
However under cross-examination he jettisoned his earlier evidence and made a surprising volta face on the boundaries of the land in dispute which he gave as follows-
1st side by Salawu Ayande’s family land;
2nd side by Ogunyomi family land;
3rd side by a Road;
4th side by Kusamotu’s farmland.
Thus his evidence under cross-examination is completely at variance with that earlier given. What is the purpose of cross-examination if not to test the veracity of a witness’ statement?. What can or should one make out of this piece of evidence under cross-examination? Appellant’s other witnesses are persons put on the land by Appellants as tenants. Here again, Respondents have made heavy weather of the evidence of some of Appellant’s witnesses notably the evidence of PW4 Tijani Odetunde and PW8 Karimu Fayoade as being inimical to any claims that the Appellant may want to make on the ownership of the land in dispute. Respondents were alluding to the evidence of PW4 that if he was disturbed on the land he would report to Adebisi Lekeleke from Atoba family whose mother is from Ogunlolu family and to the evidence of PW8 that Ogun Ajobo as shown on Exhibit E is the boundary mark between Enle family land and Ogunlolu family which is in support of the Respondent’s position and that being so, the appellants have no claim to the land in dispute. Contrary to the learned trial Judge’s assertion, P.W.8 did not say that the land in dispute belongs to the Respondents. Instead PW8 while stating in evidence that the land belongs to the Appellant’s family referred to Ogun Ajobo as being the boundary between Ogunlolu and Enle family which is in support of the Respondents’ claim. Ogun Ajobo is not contained in Exhibit “A” the Appellant’s survey plan. How then could the Appellant’s witness be making reference to a prominent feature in the Respondent’s plan which is not included in the Appellant’s plan?. PW1, Ishola Olatunji Aiyegbayo who surveyed, prepared and tendered Exhibit “A” on the Appellant’s request gave evidence of equal distances between pegs on the land but went on to admit that it was not possible to have the same distance between pegs under cross-examination. In MOGAJI LASISI ATANDA & ORS V. SALAMI AJANI & ORS (1989) 3 NWLR PART III page 511 at 538 paras. E-G, the Supreme Court held per Obaseki JSC that in a claim for a declaration of title to land, the duty of the trial Judge is mainly to ascertain whether the plaintiff/claimant has discharged the onus or burden of proof on him which will entitle him to the declaration and this burden is only discharged when credible evidence of the highest probative value is adduced by the plaintiff through witnesses in strength sufficient to outweigh other evidence and establish satisfactorily and unequivocally the title of the plaintiff to the piece or parcel of land.
(Underlining mine for emphasis). As had earlier been stated the plaintiffs must rely on the strength of his case in order to succeed and not on the weakness of the defence. See KODILINYE V. MBANEFO (supra). Have the plaintiffs turned Appellants succeeded in discharging this onus? I do not think so. The learned trial Judge was therefore in my view right in his finding at page 107 of the Record that considering the totality of his findings, it is his view that the plaintiffs (now Appellants) are not entitled to the Customary Right of Occupancy over the piece or parcel of land situate, lying and being at Otewu Village Aran-Orin Road, Ila Orangun and the other reliefs claimed.
The appeal lacks merit and is accordingly dismissed and the judgment of J. O. Bada (J) delivered on the 23rd October, 1997 is accordingly affirmed. There shall be N30, 000 (Thirty Thousand Naira) costs in favour of the Respondents against the Appellants.
CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment delivered by my learned brother S. S. Alagoa, J.C.A.
I agree with his reasoning and Conclusion arrived at in holding that the Appeal lacks merit, and the order dismissing same. I also affirm the Judgment of J. O. Bada, J. (as he then was) of 23rd October, 1999.
I abide by the order made in the lead judgment as to costs.
MODUPE FASANMI, J.C.A.: I had the privilege of reading in advance the judgment of my learned brother S. S. Alagoa J.C.A.
I agree entirely with the reasoning and conclusion reached therein. The appeal is dismissed by me. I also abide by the order as to cost.
Appearances
Akin Ayedun with J. A. AdebisiFor Appellant
AND
Z. O. AlayindeFor Respondent
