SANNI & ORS v. TAIRU & ANOR (2020)

SANNI & ORS v. TAIRU & ANOR

(2020)LCN/15319(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/L/1059/2015

Before Our Lordships

Jamilu Yammama Tukur Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

CHIEF WAHEED ADENIYI SANNI 2. ALHAJI ADESINA HASSAN 3. CHIEF ODOFIN LIGALI BALOGUN (For Themselves And On Behalf Of The Elejigbo Family Of Langbasa In Eti-Osa Local Government) (1st & 2nd Appellants Substituted By The Order Of Court Dated 25/4/17) APPELANT(S)

And

ALHAJA HADIJAT TAIRU (For Herself And On Behalf Of Tairu Family) 2. ATTORNEY GENERAL OF LAGOS STATE (On Behalf Of Lagos State Government) RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT CAN FORMULATE ITS OWN ISSUES FOR DETERMINATION

The law allows a Court to formulate its own issues for determination provided the issues formulated are deduced from the grounds of appeal. See Adelekan vs. Ecu-Line NV (2006) 12 NWLR (Pt.993) 3; Isaac vs. Imasuen (2016) 7 NWLR (Pt. 1511) 250. PER TOBI, J.C.A.

WHETHER OR NOT THE COURT OF APPEAL CAN INTERFERE WITH THE FINDINGS OF THE LOWER COURT

In determining this issue, I am minded to note that I am bound to accept the finding of the lower Court on this issue except the finding of the Court is perverse and as a result led to a miscarriage of justice. The law is settled that an appellate Court would not interfere with the finding of facts of the lower Court which had the opportunity of observing the demeanor of the witnesses before it except if such finding is perverse meaning that it does not correspond with the evidence adduced. See Eromosele vs. FRN (2018) LPELR-43851 (SC); Edilcon (Nig) Ltd vs. UBA Plc (2017) LPELR-42342 (SC). PER TOBI, J.C.A.

FACTOR TO BE CONSIDERED FOR AN ADMISSION AGAINST INTEREST TO BE VALID

An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court; it must also vindicate and reflect the legal position. See Per TOBI, J.S.C in ODUTOLA & ANOR V. PAPERSACK NIG. LTD (2006) LPELR-2259(SC). Where there are admissions by a party against his interest, such admissions will be admissible against the person. And it must be viewed in relation to the entire evidence before the Court to know the weight to attach to it. See Per BELGORE, J.S.C in KAMALU & ORS V. UMUNNA & ORS (1997) LPELR-1657(SC). PER TOBI, J.C.A.

THE PRINCIPLE THAT LAW IS BASED ON EVIDENCE

Law is based on evidence and the application of the evidence to law. The trite legal principle is that the Claimant must succeed on the strength of his case and not on the weakness of the Defendant’s case. Particularly in land cases the Claimant must prove his title to the land by credible evidence in applying one of the five ways of proving title and not by the admission of the other party. See His Highness Alhaji Momoh & Ors vs. His Highness Alhaji Umoru & Ors (2011) 15 NWLR (Pt. 1270) 217. I can go further to say, a party cannot prove title to land by the admission of the other party. He must prove his title by credible evidence. See Ayanru vs. Mandilas Ltd (2007) LPELR-670 (SC). PER TOBI, J.C.A.

PROOF OF OWNERSHIP OF TITLE TO LAND IN DISPUTE

To prove title to the land in dispute, the Appellants in their claim and the 1st Respondent in his counter claim must prove ownership of the land by proving one of the five established ways of proving title laid down in a host of cases of the apex Court of the land starting with locus classicus case of Idundun vs. Okumagba (supra). See also Lasisi Morenikeji & Ors vs. Laleke Adegbosin & Ors (2003) 4 S.C (Pt. 1) 107; Mr Michael Aiyeola vs. Mrs Ramota Yekini Pedro (2014) ALL FWLR (Pt. 744) 17; Isamotu Ashiru vs. Adetoun Olukoya (2006) 11 NWLR (Pt. 990) 1. I will specifically quote from one or two cases. I will start with the case of Ajiboye vs. Ishola (2006) 6-7 SC 1, the apex Court per Onneghen JSC (as he then was) laid down the general principle in these words: “It has been settled by long line of authorities from this Court that ownership or title to land may be proved by any of these five methods, viz:
(a) By traditional evidence;
(b) By production of documents of title, which are duly authenticated;
(c) By acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it;
(d) By acts of long possession and enjoyment of the land; and
(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; see Idundun v. Okumagba (1976) 9-10 SC. 227; Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31; Section 46 of the Evidence Act, 1990.
It must be noted that the above five methods deal with the means by which title to land can be proved in the Court of law. The said methods have nothing to do with the mode of acquisition of title to land which may be by:
(a) First settlement on the land and deforestation of the virgin land;
(b) Conquest during tribal wars;
(c) Gift,
(d) Grant – customary
(e) Sale

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of Hon. Justice M.A. Dada (Mrs.) of the High Court of Lagos State sitting in Badagry delivered on 13/5/2015 in Suit No. LD/377/2014 – Alhaji Waheed A. Agbomabini & 2 Ors vs. Alhaja Hadijat Tahiru & Anor. The brief set of facts at the lower Court according to the Appellant (Claimant at the lower Court) is herein reproduced. The Appellants are the owners of a large expanse of land known as Langbasa in Eti-Osa Local Government Area of Lagos State which was excised to them by the government after an initial acquisition of all the lands at Makoko. The Appellants noticed the presence of the 1st Respondent (1st Defendant at the lower Court) on a part of their land (the subject matter of dispute at the lower Court now on appeal) and thereby petitioned the 1st Respondent to the 2nd Respondent (2nd Defendant at the lower Court) regarding the nuisance and act of trespass of the 1st Respondent. It is the claim of the Appellants that the only response they got from the 2nd Respondent was the publication of the excision of Tairu village in the 2007 Official Gazette of the State Government wherein the Tairu village was moved from Ibeju Lekki Local Government Area to Eti-Osa Local Government Area. It was in the light of this that the Appellant then instituted an action by way of a writ against the 1st Respondent and the 2nd Respondent was ordered by the lower Court to be joined as a party to the action. The claim of the Appellants in the lower Court is:
a. A declaration that the Claimants are the owners of the parcel of land subject matter of this action.
b. A perpetual injunction restraining the first Defendant by herself, agents, privies or otherwise how so ever from trespassing on the disputed land and from doing any construction and or from cultivating the land the subject matter of this suit.
c. That the excision which was erroneously granted to the 1st Defendant by the Lagos State Government in the Lagos State Official Gazette Vol. 8 No. 40 of 5th July, 2007 be revoked and for such other reliefs the Court may deem fit to grant in the circumstance.

The case of the 1st Respondent on the other hand, through their defence and counter claim is that they got to be on the said land by reason of an excision from the government and that at all material time they had been located in the Eti-Osa Local Government Area rather than the Ibeju Lekki Local Government Area as claimed by the Appellant. The 1st Respondent therefore counter claimed as follows:
a. A declaration that the Defendant/Counterclaimant is the rightful person entitled to statutory right of occupancy over and covering the entire parcel of land situate, lying and being at Tairu Village in the Eti-Osa Local Government Area of Lagos State which land is contained as advertised in the Lagos Horizon of 17th February 1998 and is now described at Page 338 of the Lagos State of Nigeria Gazette No. 48 Volume 40 of 5th July 2007.
b. An order of Perpetual Injunction restraining the claimants their agents or privies from further laying claim to the said land of the defendant/counter claimant situate lying and being at Tairu Village in Eti-Osa Local Government Area of Lagos State.
c. N2 million as general damages.

The lower Court after hearing the case of the parties in its judgment found on pages 363 – 380 of the record of appeal (pages 1 – 18 of the judgment) specifically at page 379-380 of the record (page 17-18 of the judgment) held thus:
“From the foregoing therefore, I find it difficult to adjudge the Claimants the rightful Owners of the disputed land subject matter of this Suit.
Consequently, the totality of the case fails and is hereby dismissed.
With regard to the 1st Defendant’s Counter-claim, the location of the land is ambiguous and therefore the Counter-claim cannot be granted as the identity and the location of the land as to whether it is in Eti-Osa or Ibeju Leki is uncertain. The totality of the Counter-claim also fails and is hereby dismissed.
This is the judgment of this Court.”

The reason the lower Court gave for the dismissal of both the claim and the counter claim is based on the legal principle that a Court cannot grant claim for title to land if the land is not properly ascertained as title to land cannot be granted when the identity of the land is not clear as injunction can only be granted on a land known to the parties of which if properly described can enable a surveyor prepare a survey plan. See Ministry of Lands & Housing, Bauchi State & Anor vs. Alhaji Yakubu Sale Tirwun (2017) LPELR-43314; Chief Tukuru & Ors vs. Chief Nathans Sabi & Ors (2013) 10 NWLR (Pt.1363) 442.

The Appellant dissatisfied with the judgment of the lower Court has filed this appeal vide a notice of appeal. The extant notice of appeal of the Appellant is that dated 25/4/2017 but filed on 5/5/2017 containing four grounds of appeal. The grounds are:
GROUND 1
The judgment is against the weight of evidence.
GROUND 2
The learned trial Judge erred in law in refusing to grant the Claimants’ claim for declaration of title to the land in dispute as captured by Exhibit 5 on the ground that the plan used by the Claimants to prosecute in the suit between SHASORE V OLOJEDE which plan was tendered as Exhibit 3 did not cover the entire land now claimed by Exhibit 5 and this claim must have been an afterthought and points to the fact that the Claimants do not know the extent of the land claimed by them.
GROUND 3
The learned trial Judge erred in law in dismissing the Claimants’ claim to the ownership of Tairu village when from the pleadings and the evidence before the Court it is clear that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
a. Tairu village falls outside Badore the alleged grantor of the land to the 1st Defendant.
b. The 1st Defendant in her own pleading expressly admitted that Tairu village falls outside Badore land.
c. The Intelligence Report (Exhibit 10) tendered by the Claimants was conclusive of the fact that Badore and Langbasa have a common boundary and if that is the case, Tairu village would of necessity be within the Claimants’ land.
GROUND 4
The learned trial Judge erred in law by not granting the declaration sought for by the Appellants which declaration the Court ought to have granted bearing in mind the grounds given by the trial Judge in dismissing the counterclaim of the 1st Respondent.

The Appellant is not the only person dissatisfied with the judgment. The 1st Respondent is also unhappy with the judgment. The Respondent filed a notice of cross appeal on 27/4/17 containing two grounds of appeal. These are:
GROUND ONE
The judgment is against the weight of evidence
GROUND TWO
The learned trial Judge erred in law in refusing to grant 1st Defendant counter claim on the basis that the location of the land is ambiguous since she could not determine whether it was in Eti-Osa or Ibeju Lekki Area of Lagos State.

The relevant briefs in this appeal are the Appellants’ brief filed on 5/5/17, the 1st Respondent brief which is also the argument for the cross appeal tagged ‘1st Respondent/ Cross Appellant Brief of argument’ filed on 27/4/17 and the Cross Respondents’ brief of argument filed on 7/6/19 deemed on 24/6/2020. The Appellant filed no reply brief.

The Appellants’ brief dated 25/4/2015 but filed 5/5/2017 was settled by Morenike Ojo (Mrs.). In their brief, Appellants through their counsel raised two issues for determination these are:
1. Whether the trial Court was right in refusing to grant the Appellants’ claim when the findings arrived at was due to the wrongful appraisal of the evidence before it.
2. Whether the trial Court, having found that Tairu village is not at Eti-Osa Local Government Area and thereby dismissing the 1st Respondent’s counter claim, ought not to have granted the declaration of title sought by the Appellants on the evidence before it.

On issue one, Appellants’ counsel reiterated some of the evidence adduced at the lower Court and submitted that in view of the evidence elicited, the trial Court ought not to have attached weight to Exhibit 6 (A survey plan tendered by counsel to the 1st Respondent through CW1) as it was quite glaring that the Exhibit 6 could not be the plan prepared by CW1 for a 1994 case. He posited that the trial Court wrongly appraised the evidence as the trial Judge confused the exhibits and drew wrong inferences from them upon which the trial Judge dismissed the claims of the Appellants. Counsel submitted that the decision of the trial Court is based on a wrong appraisal of the documentary evidence (Exhibit 6) which led to its findings and dismissal of the Appellants’ reliefs. For this, counsel cited Oshiyemi vs. Akinte (1995) 2 NWLR (Pt. 379) 555; Odofin & Ors vs. Mogaji & Ors (1978) 11 NSCC 275.

Learned counsel for the Appellants contended that even though the counter claim of the 1st Respondent was dismissed, the trial Court ended causing more harm than good to the parties by creating a no victor no vanquish situation. He therefore urged this Court to resolve issue one in favour of the Appellants.

On issue two, it is the contention of Appellants’ counsel that the judgment of the lower Court did not deal with the issues raised for determination between the parties. He went further to contend that the trial Court only concentrated on whether or not both parties knew the extent and location of the land claimed by them. The thrust of the Appellants’ second issue, learned counsel argued is predicated on the fact that the Appellants’ case at the trial Court was that Tairu village, said to be located between Badore and Langbasa, cannot be within Badore but outside it and where this is the case, Tairu village must of necessity fall within Langbasa. Counsel argued further that the Appellants’ case is also predicated on the fact that Tairu village, which was said to have been excised from acquisition was first at Ibeju Lekki Local Government Area before being moved to Eti-Osa Local Government Area and this was the major reason why this suit currently on appeal was instituted and the 2nd Appellant joined at the lower Court.

It is the submission of counsel that the finding of the trial Court that the 1st Respondent does not know the location of Tairu village confirms the position taken by the Appellants and such finding should have resulted in the trial Court granting the declaration sought for by the Appellants since the evidence led by the Appellants supports the dismissal of the counter claim. He relied onOlagunju vs. Yahaya (2004) 11 NWLR (Pt. 883) 24; Ashiru vs. Olukoya (2006) 11 NWLR (Pt. 990) 1 SC in submitting that though it is the rule that a Plaintiff must succeed on the strength of its own case and not on the weakness of the Defendant’s case, an exception to this general rule has been held in plethora of cases. It is the further submission of counsel that the evidence of the 1st and 2nd Respondents before the trial Court supports the Appellants’ case that Tairu village was not an existing village under Eti-Osa LGA prior to the acquisition Notice published by the State Government in 1993 (Exhibit D7). He referred this Court to the testimony of 2nd Respondent’s witness contained on page 357 of the record of appeal. Counsel contended that from the testimony of the 2nd Respondent’s witness, it is clear that all existing towns, settlements and villages prior to the acquisition Notice of 1993 were not affected by the acquisition.

It is the further contention of counsel that the evidence given by the 1st Respondent also supports the assertion made by the Appellants as to the non-existence of Tairu village in Eti-Osa Local Government Area, as there was no village known as Tairu village prior to 1993. He referred this Court to the cross examination of DW3 contained on page 336 of the record of appeal. It is the argument of counsel that from the evidence given by the 1st and 2nd Respondents at trial and from their pleadings, an application has to be made to the State Government with a survey plan of the land to be excised attached to it before excision can be granted, none of the parties tendered documentary evidence in proof of this fact even though they claimed by their witnesses that this process was followed before Tairu village was excised to the 1st Respondent. Counsel placed reliance on Section 128 of the Evidence Act 2011 and the case of Oladejo Adewuyi Ajuwon vs. Fadele Akanni & Ors (1993) 9 NWLR (Pt. 316).

It is submitted by counsel that from the pleadings of the 1st Respondent contained on page 123 of the additional record of appeal, even if Badore community gave the 1st Respondent the land in dispute being claimed as Tairu village, the said land was given mainly for farming purposes as there was no evidence led by the 1st Respondent of any form of sale or grant by the Badore community to the 1st Respondent’s progenitors. It is further submitted by counsel that since it is a farmland that was supposedly given to the 1st Respondent, there was no explanation made as to how a farmland transformed into a village in need of excision, owing to the fact that a village cannot be created by the government but can only be recognized for an excision to be granted.

Finally, it is the submission of counsel that in view of the lower Court dismissing the counter claim of the 1st Respondent, the only logical conclusion which the trial Court should have reached is to have found in favour of the Appellants on its declaration that Tairu village is not at Eti-Osa Local Government Area but if so exists, is at Ibeju Lekki Local Government Area. On this premise, counsel urged this Court to resolve issue two in favour of the Appellants by affirming the dismissal of the 1st Respondent’s counter claim and hold that Tairu village is indeed not at Eti-Osa Local Government Area.

The 1st Respondent brief is dated and filed on 27/4/2017. this brief also doubled as the Cross Appellant’s brief. The counsel that settled the 1st Respondent’s brief is Patrick Abak Esq. The 1st Respondent argued both its Respondent brief and the Cross appeal together. In its brief of argument, learned counsel for the 1st Respondent/Cross Appellant raise two issues for determination viz:
1. Whether the learned trial Judge was right in law in the face of available evidence, when she held that the identity and location of 1st Defendant land was ambiguous and so refused to grant the nominal declaration sought.
2. Whether the trial Judge’s refusal to grant the declaration sought had not occasioned a miscarriage of justice since police authorities at force Headquarters Abuja have declared that the judgment gave the land excised for the benefit of the 1st Defendant’s community to both parties on a 50 -50 basis.

By way of introduction, it was stated by 1st Respondent counsel that since the Appellants had previously been engaged in several litigations on the extent of its boundaries with its neighbours and judgments delivered in those suits, Appellants are stopped from further extending the boundaries of their land. He relied on Baruwa vs. Ogunsola (1938) 4 WACA 159. He also stated that the Intelligence Report admitted as Exhibit 12 was written when colonial masters were at the helm of affairs in Nigeria and only shows two main towns of Langbasa and Badore as neighbouring communities. It did not mention smaller villages like Ijoyi and Abegede both forming parts of Langbasa, neither did it make mention of Tairu village which was carved out of Badore.

In arguing its issues for determination which the counsel took together, it is submitted that from the Appellants’/Cross Respondents’ evidence at the lower Court, the Court had enough documentary evidence from which to ascertain the identity and location of 1st Respondent’s/Cross Appellant’s land which was the disputed land. It is the contention of counsel that the 1st Respondent’s/Cross Appellant’s first witness testified before the lower Court and also stated on his statement on oath that he produced a composite Plan No. LAA/0327/2011/D006/LA dated 18/11/2011, marked as Exhibit D1, which plan contained a portion verged yellow and said to be Tairu land excised to them by the government. Learned counsel urged this Court to hold that the learned trial Judge erred when she held that the identity and location of the 1st Respondent/Cross Appellant land was ambiguous, the 1st Respondent’s/Cross Appellant’s first witness having stated that the portion verged yellow in Exhibit D1 was the land excised to the 1st Respondent/Cross Appellant by the Lagos State Government.

Counsel submitted further that the 2nd Respondent’s sole witness in his testimony at the lower Court and in his written disposition on oath was emphatic when he detailed the procedure for granting excision to land owning communities who were affected by the global acquisition of lands along the Lekki corridor and elsewhere. He referred this Court to paragraph 13 of 2nd Respondent’s sole witness written deposition contained on page 87 of the supplementary record. It was argued by learned counsel that throughout the trial, no evidence was led by the 1st Respondent/Cross Appellant on her property being located in Ibeju Lekki Local Government. It was further argued by counsel that the allegation of the Appellants/Cross Respondents that the 1st Respondent/Cross Appellant land was published in the Horizon Newspaper as being in Ibeju Lekki was not substantiated and same was countered by the 1st Respondent/Cross Appellant in her written deposition in paragraphs 3, 4 and 5. Going further, it was contended by learned counsel that in the 1st Respondent/Cross Appellant’s final written address, it was clearly stated that the Lagos Horizon Newspaper admitted as Exhibit 7 was of no legal value to Appellants/Cross Respondents’ case and ought to be ignored as the exhibit did not state the survey coordinates of the alleged Tairu community. He relied on Akinduro vs. Alaya (2007) 15 NWLR (Pt. 1057) 338; Umogbai vs. Aiyembola (2002) 8 NWLR (Pt. 770) 687 to the effect that document which was admitted by consent cannot be accorded any weight. Counsel also citedYusuf vs. Oyetunde (1998) 9-10 SC 123 @ 131 to the effect that when a party’s land had been acquired by government and a portion excised to the family, only the portion excised now belong to the family and argued that the evidence before the lower Court was very consistent that the disputed land belonged to the 1st Respondent/Cross Appellant even by the testimony of the Appellants/Cross Respondents’ community. Counsel placed reliance on Akinola vs. V.C. Unilorin (2004) 11 NWLR (Pt. 885) 616; Agbahomovo vs. Eduyegbe (1999) 3 NWLR (Pt. 594) 170 in stating the trite principle of law that a superior Court of record like the trial Court can look into its record or files and make use of information therein to draw conclusions. He also cited Bello Ogundele & Anor vs. Shittu Agiri & Anor (2009) 12 SC (Pt. 1) 135 @ 137 to the effect that documents when tendered and admitted in Court are like words uttered and do speak for themselves. Counsel on the strength of this therefore urged this Court to reverse the decision of the trial Court.

On the issue two, it is the contention of learned counsel that having placed sufficient materials before the trial Court upon which the location of 1st Respondent/Cross Appellant’s land could be determined with certainty, the decision of the trial Judge occasioned a miscarriage of justice, moreso when the police authorities at Force Headquarters Abuja refused to act on 1st Respondent/Cross Appellant’s petition, since large parts of the 1st Respondent/Cross Appellant’s land had been sold by the Appellants/Cross Respondents. It is the contention of counsel that the police would not have reached the conclusion that the judgment vested a land excised by the state government for use by the 1st Respondent/Cross Appellant’s community on both the Appellants/Cross Respondents and the 1st Respondent/Cross Appellant on a 50-50 basis, had the learned trial Judge reached the right conclusion based on the evidence both oral and documentary before it. He relied on Osafile vs. Odi (1990) 5 SC (Pt. II) 1 @ 27.

Cross Respondents’ brief dated 2/5/2019 was filed 7/6/2019 but deemed as properly filed on 24/6/2020. In the Cross Respondents’ brief, counsel for the Cross Respondents raised a sole issue for determination. The issue is:
Whether the trial Court was right in dismissing the counter claim of the Cross Appellant/1st Respondent, on the basis that there is uncertainty as to whether the land claimed is located in Eti-Osa Local Government Area or Ibeju-Lekki Local Government Area.

Before I go into the argument of learned counsel on the sole issue for determination, I will like to first state that some of the submissions contained in the Cross Respondents’ brief are a repetition of what is contained in the Appellants’ brief and as such will not be reproduced to avoid repetition.

Arguing the sole issue for determination, it is the contention of counsel that though the Cross Appellant during the course of the trial before the lower Court maintained that their land is situate in Eti-Osa Local Government, the counter claim upon which they sought the reliefs before the trial Court stated otherwise. Counsel referred this Court to the reliefs sought by the Cross Appellant contained on page 126 of the additional record of appeal. Counsel further contended that the Cross Appellant failed to state and give concrete evidence as to the precise location of their land as they were approbating and reprobating on this issue, thus not being able to conform to the trite principle of law that states that the identity and location of a land in dispute is sine qua non to the success of a party in an action relating to declaration of title to land. It was contended further by counsel that the same Exhibit 7 (Lagos Horizon Newspaper) which the Cross Appellant discredited in paragraph 3.7 of its brief, was the same exhibit used in describing the land in dispute in the relief sought in its counter claim. It was therefore submitted by counsel that this in itself was sufficient for the trial Court to find that the location of the land being claimed by the Cross Appellant is ambiguous and thereby refusing to grant the reliefs sought by the Cross Appellant.

It was submitted by counsel that Exhibit 6 upon which the Cross Appellant assumed to be enough documentary evidence from which the Court ought to ascertain the identity of the land in dispute, cannot be held to be so as same was admitted by the Cross Appellant’s witness (DW1) to be forged. He referred this Court to pages 331-332 of the record of appeal containing the cross examination of the Cross Appellant’s witness. It was further submitted by counsel that the Cross Appellant has failed to prove the identity of the land in dispute hence the decision of the trial Court in refusing to grant the counter claim should be affirmed.

The issues for determination have been formulated by the counsel to the parties in their respective briefs. I am not under any obligation to go by the issues formulated by the parties. The law allows a Court to formulate its own issues for determination provided the issues formulated are deduced from the grounds of appeal. See Adelekan vs. Ecu-Line NV (2006) 12 NWLR (Pt.993) 3; Isaac vs. Imasuen (2016) 7 NWLR (Pt. 1511) 250.
The issues for determination are supposed to capture the grounds of appeal in such a way that parties or any person reading the judgment need not see the grounds of appeal to appreciate the issues involved in the appeal. In doing so, an appellate Court should limit itself to the grounds of appeal and not go on a voyage as the lower Court would do in deciding the case in the first instance. The appellate Court cannot use its position to delve into issues that are not complained of by the party or parties appealing. The grounds of appeal and the issues for determination must arise from the judgment and the specific aspect of the judgment forming the reason behind the judgment. Bearing that in mind, the real and live issue in this appeal is “whether the lower Court was right in dismissing the Appellants’ claim and the 1st Respondent’s/Cross Appellant’s counter claim?” This is the main issue which this appeal will determine, however for proper flow of the judgment, based on the grounds of appeal stated in the Appellants’ amended notice of appeal of 5/5/17 and the 1st Respondent’s Notice of Cross Appeal of 27/4/17, I will formulate the followings for determination in this appeal and cross appeal:
1. Whether in the light of the pleadings and the evidence before the lower Court, the Court was right in dismissing the Appellants’ claim and the 1st Respondent’s counter claim.
2. Whether the land in dispute was properly described and ascertained by the parties to establish their case.
3. Whether the dismissal of the case of the Respondent/Counter-Claimant on grounds that the Respondent was unable to show that the land is situate in Eti-Osa Local Government automatically implies that the Appellants’ case would succeed.

For the proper flow of the judgment, I may not address the issues formulated in numerical order as stated above. I will address the issues starting with the second issue, the first and finally the third. I will now start with determination of issue 2. Issue 2 as formulated reads thus:
Whether the land in dispute was properly described and ascertained by the parties to establish their case.

The reason why the lower Court dismissed the case of the Appellants is that the CW1 who is the witness of the Appellants at the lower Court made it clear that Exhibit 3 and Exhibit 6 though similar has a little difference in the sense that the measurement of the land in dispute was stated in Exhibit 6 which measurement was not stated in Exhibit 3 which was prepared first in time. It is the finding of the lower Court on page 378 of the records (page 16 of the judgment) that the Appellants do not seem to know the exact land they are claiming and that the Appellants were merely speculating as to the land they are claiming. This is what the lower Court found as a fact in the above mentioned page of the judgment:
“If the Claimants who identified their land to CW1 in 1994 which gave birth to Exhibit 3 limiting their land to an area that did not include the land in dispute, though the Badore plan had already been in existence 10 years before then, why would a new plan have been necessitated based on the same Badore plan? It can only be rightly assumed that the Claimant do not know the extent of their land with certainty and appears to be speculating. From the foregoing, there appears to be no justification for the extension whatsoever.”
On the side of the counterclaim of the 1st Respondent, the lower Court on page 379-380 of the records (page 17-18 of the judgment) found as follows:
“With regard to the 1st Defendant’s Counter-claim, the location of the land is ambiguous and therefore the Counter-claim cannot be granted as the identity and the location of the land as to whether it is in Eti-Osa or Ibeju-Lekki is uncertain. The totality of the Counter-Claim also fails and is hereby dismissed.”
It is clear from the above finding that the lower Court decision is purely based on the issue of the identity of the land. The lower Court did not even consider whether any of the parties proved the title to the land in dispute using any of the five ways recognized under the law for proving title in Nigeria. Before we consider the evidence, it is not out of place here to state the trite legal position as to the role the proper identification of the land in dispute plays in the determination of title to land. The purpose of proving with certainty the land in dispute is so that an order is not made over a land which may turn out to be the wrong land. The principle with regard to the proper description of the land as to location, boundary and features is well established in a cloud of cases. The circumstance in which the certainty of the land will be needed and when it will not be needed and what will amount to proper description is stated in the case of Offodile vs. Offodile & Ors (2019) LPELR-47851 (SC), the apex Court per Abba Aji, JSC held:
“The 2 Courts below by Exhibit A held that the boundary and delineations of the land in dispute were not proved with certainty by the Appellant to give him title to the land in dispute.
The identity of land in dispute will be in issue, if the Defendants in their Statement of Defence made it one, that is, if they disputed specifically either the area or the size or the location or the features shown on the Plaintiff’s’ plan. When such is the case, then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the land. Where therefore the identity of the land is not an issue, the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact, in such cases, the plan can and should be tendered by consent. See Per TABAI, J.S.C in ANYANWU & ORS V. UZOWUAKA & ORS (2009) LPELR-515(SC).
In the instant appeal, both the Appellant and the Respondents have agreed that 25 plots of land were sold to the 6th Respondent but the extent of the said land was in dispute. The 2 lower Courts held that although that was agreed upon, the Appellant could not prove with certainty the extent and identity of the land which occasioned the dismissal of the suit against him. It is nevertheless on record that aside Exhibit A, Exhibits G and H presented by the Respondents clearly have established with all certainty the boundary and demarcations of the land in dispute. Besides, the parties by their evidence have abundantly concurred that the portions and boundaries of the land in dispute are well known to them save that the Respondents want to predicate on the principle that the Appellant must prove and identify the boundary of the land with certainty to have judgment and title in his favour.
The admission of the boundary and knowledge of same by the Respondents must work against them since it clearly shows and demonstrates that what the Appellant has been struggling to present to the Court regarding the boundary of the land in dispute has corresponded by their admission.
An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court; it must also vindicate and reflect the legal position. See Per TOBI, J.S.C in ODUTOLA & ANOR V. PAPERSACK NIG. LTD (2006) LPELR-2259(SC). Where there are admissions by a party against his interest, such admissions will be admissible against the person. And it must be viewed in relation to the entire evidence before the Court to know the weight to attach to it. See Per BELGORE, J.S.C in KAMALU & ORS V. UMUNNA & ORS (1997) LPELR-1657(SC).
Furthermore, by Exhibits H and G, it is clear and abundant that the portion of land the 6th Respondent bought from the other families are indelibly indicated as portions of land not disputed by the parties. Per SAIDU KAWU, J.S.C in AKEREDOLU & ORS V. AKINREMI & ORS (1989) LPELR-328(SC) eruditely explained this principle when he held thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“It is also trite law that in a declaration of title, if the plaintiff includes land for which he has no title, but successfully proves title to an ascertainable portion of the land, the Court can make a declaration of title in respect of the ascertainable portion of which title is proved- Sogunle v. Akerele (1967) N.M.L.R. 58.”
In the same case, Eko, JSC was clear and explicit on the effect or importance of proper description of the land in dispute. His lordship held thus:
“The principle on which the trial Court and the lower Court predicated their judgments, dismissing the claims of the Plaintiff/Appellant, is that the disputed land must be clearly definite and discernible; failing which the claims to title over it and injunctive order restraining further trespass thereto should be denied. In otherwords, a judgment declaring title to or over a piece of land must be set aside, on appeal, where the disputed land is not properly ascertained: UDOFIA v. AFIN 6 WACA 216; KWADZO v. ADJEI 10 WACA 274; OLUWI v. ENIOLA (1967) NMLR 339; ARABE v. ASANLU (1980) 5 – 6 SC 78 at 90 . In ELIAS v. OMO-BARE (1982) 2 NWLR (pt. 55) 101 , Coker JSC proffered the purpose of this principle thus, at page 106 –
The purpose is to enable the parties and any other person claiming (through them) to know precisely the area of land to which the judgment or order relates for the purpose of enforcement of the decision of the Court. It is also important for the purpose of obviating possibility of future litigation of that particular area of land as between the parties and their privies.”
The need to however require the proof of the identity of the land arises only when it is made an issue by the other party and when the other does not admit to know the land in dispute. In Anyanwu & Ors vs. Uzowuaka & Ors (2009) 13 NWLR (Pt. 1159) 445, the apex Court per Tabai, JSC held:
“In NWOBODO EZEUDU & ORS v. ISAAC OBIAGWU (1986) 2 NWLR (Part 21) 208 at 220 this Court, Per Oputa JSC, spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said:
“The identity of land in dispute will be in issue, if and only if, the Defendants in their Statement of Defence made it on – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. the onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there I will make bold to say that the mere production of the Plaintiff’s plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.”
I have gone through the record of appeal and I cannot seem to see anywhere that Respondent put in issue the identity of the land in dispute. If anything at all, it is the Appellants that challenged the location of the land in dispute whether it is at Ibeju-Lekki or Eti-Osa. That also does not mean that the 1st Respondent did not describe the land in dispute with certainty. In fact, I make bold to say that both parties know the land that is in dispute. The way to show that the land is described with certainty is when the description of the land is made in such a way that a surveyor can prepare a survey plan of the land based on the description given to the surveyor as to size, location, boundaries and features. SeeArabe vs. Asanlu (1980) 5-7 S.C 78. The fact that there is survey plan covering the land in dispute and Exhibit 2 which states the size and location of the land in dispute makes the proof of the certainty of the land by either party unnecessary. The point must be made that the description of a land can be by oral evidence or by a survey plan. In Aiyeola vs. Pedro (2014) LPELR-22915 (SC), the apex Court held at pages 64-65 thus:
“It is also imperative that the identity of the land being claimed is certain. Where there is a dispute as to the identity of the land in dispute, the burden is on the party claiming title to establish the identity by specific and unequivocal evidence as to its boundaries.
See: Aremu v. Adetoro (2007) 16 NWLR (Pt. 1060) 244; (2007) 7 SC (Pt. II) 1; Odesanya vs. Ewedemi (1962) 1 All NLR 320. This may be done in either of two ways. The claimant may give an oral description of the land sufficient to make it ascertainable. See Aremu v. Adetoro (supra); Awere v. Lasoju (1975) NMLR 100; Idehen vs. Osemwenkhae (1997) 10 NWLR (Pt. 525) 358; or he may file a survey plan. A survey plan is not required in every case. Where an oral description is relied upon, the test is whether a surveyor can, from the record, produce an accurate plan of such land. See: Udofia vs. Afia (1940) 6 WACA 24; Kwadzo vs Adjei (1944) 10 WACA 274.”
I even make bold to say that all the argument of the Appellants as to the fact that the 1st Respondent’s family was in Ibeju-Lekki in 1993 and not in Eti-Osa is neither here nor there. What the lower Court is to look at for in addressing issue 2 is whether the parties were able to give description of the land in dispute in such a way that a surveyor can produce a survey plan. Once there is a survey plan which states the size, location, boundary and features on the land before the Court that will satisfy the requirement of the law as to the proper ascertainment of the land in dispute. There were various survey plans tendered in this case at the lower Court. The latest of those plans is Exhibit 4 made on 14/12/2012. This survey plan did not specifically state the size of the land in dispute. The most relevant and comprehensive survey plan is the litigation composite plan tendered as Exhibit D1 with Plan No: LAA/0327/2011/D006/LA. The said exhibit is a compilation of survey information from survey Plan No: CSA Adewumi on 18/12/1976, MAF/50A/94L prepared by Serv. M.A Fasasi, MAF/2258/84L, ASC/LA/1472/96 prepared by surv. F.A. Ogunbadbo and Lagos State Gazzette No 48, Vol 40 of 5th July 2007 and further details surveyed and incited by me. The said survey brought out clearly the land owned by the Appellants and the land in dispute before the lower Court. Exhibit 3 and Exhibit D6 are similar except that Exhibit D6 is more detailed in that it states the size and the location of the land in dispute which was so stated in Exhibit 3. The point I am laboring to make is that the lower Court was wrong to have held that the parties did not properly describe the land in dispute. If for nothing, the survey plan particularly Exhibits D1 and D6 clearly showed the land in dispute. As earlier stated, it is not really any major issue that the land had earlier been said to be located in Ibeju-Lekki and not in Eti-Osa. What is clear is that both parties are referring to same land which is described as the land situate at Tairu Village. In my opinion the lower Court should have spent some little time to look at the exhibits properly and if it did, it would not have reached the decision it did or at least not the finding it arrived at for the decision. For the avoidance of doubt, I hold that the land in dispute is known to all the parties and therefore the lower Court was not in order to have held that the land is not ascertainable. The various survey plans are clear indications of the identity of the land particularly the composite litigation survey plan.

I will now address issue 3. This issue reads thus:
Whether the dismissal of the case of the counter claim on grounds that the Respondent was unable to show that the land is situate in Eti-Osa Local Government automatically implies that the Appellants case would succeed.
The Appellants made an issue of the fact that the land in dispute as at 1993 has been stated to be in Ibeju-Lekki and therefore there is no way the land can now be described to be in Eti-Osa and therefore the 1st Respondent cannot be said to have ascertained or properly identified the land they are claiming. The lower Court agreed with the position of the Appellants and only on that ground alone dismissed the counter claim of the 1st Respondent. From my finding above, I do not agree with the lower Court in so finding but let me hasten to say that this does not mean that 1st Respondent’s cross appeal would succeed. I will be addressing that later in this judgment but for now, it suffices to say that the lower Court was wrong in so holding. I take this position because the land on its own does not shift but government policies can place the land location from one Local Government to another. By the process of excision or delineation the location of a property can change though the property is located in the same place physically but the name of the land or where it is located can change. The change of the name of the place the land is called will not necessarily mean that the land cannot be identified. The 1st Respondent in the statement of defence stated that the publication putting the land at Ibeji-Lekki was in error which the Lagos State Government Gazette Exhibit 7 corrected. It really makes no difference whether the land is described to be at Ibeji-Lekki or Eti-Osa provided the land is known to the parties and the Court knows the land that his order will cover. As a corollary, the fact that both parties give the land a different name is not enough to say that the land is not ascertainable. In John Ogbu vs. Best Wokoma (2005) 14 NWLR (Pt. 944) 118, the apex Court held:
“The law is also settled that where the parties, by the evidence adduced both oral and documentary, are ad idem on the identity of the land in dispute, the fact that different names, are given to the land or the area where the land is located is called different names is not fatal to the party claiming such land. See Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192, (1989) 2 N.S.C.C. 294.”
I have held above that the land can be identified and ascertainable and therefore the lower Court was wrong in its finding. I cannot resolve this issue in favour of the Appellants.

Assuming I am wrong, though not conceding I cannot see my way clear to agree with the Appellants’ counsel that the lower Court having held that the 1st Respondent could not properly prove the identity and location of the land then judgment should have been given to him. Things do not work that way in law. Law is based on evidence and the application of the evidence to law. The trite legal principle is that the Claimant must succeed on the strength of his case and not on the weakness of the Defendant’s case. Particularly in land cases the Claimant must prove his title to the land by credible evidence in applying one of the five ways of proving title and not by the admission of the other party. See His Highness Alhaji Momoh & Ors vs. His Highness Alhaji Umoru & Ors (2011) 15 NWLR (Pt. 1270) 217. I can go further to say, a party cannot prove title to land by the admission of the other party. He must prove his title by credible evidence. See Ayanru vs. Mandilas Ltd (2007) LPELR-670 (SC).
The point being made here is that the fact that the lower Court held that the 1st Respondent could not properly ascertain the land in dispute does not automatically mean that the burden on the Appellants to prove their case has been suddenly lifted off them. It does not work like that. The Appellants still have the responsibility to prove their own case that they are entitled to the judgment.

Now to the final issue which is issue 1, which for all intent and purposes is the most important issue. The issue as formulated by this Court reads thus:
Whether in the light of the pleadings and the evidence before the lower Court, the Court was right in dismissing the Appellants’ claim and the 1st Respondents counter claim.

The lower Court in the judgment produced above dismissed both the Appellants’ case and that of the 1st Respondent in the lower Court as Claimants’ and 1st Defendant respectively. None of the parties went home happy hence the appeal and cross appeal. I must make the point that decisions of Court is based on evidence and not supposed or meant to satisfy or make people happy. If none of the parties has led evidence to establish their case the Court will not give judgment in favour of one because one party must win. This is not like a football final that a team must win to carry the trophy. The parties are obligated in law to prove their respective cases to win. By this I mean that the Appellants must prove their entitlement to the property to establish their claim in the main and similarly the 1st Respondent need to show his entitlement to the property in the counterclaim. The lower Court ought to have considered the evidence of the parties before it to determine whether they have proved title to the land. This, the lower Court surprisingly did not do and has left the duty to evaluate that evidence to this Court. The law is that if the lower Court did not carry out its responsibility, the appellate Court in line with Section 15 of the Court of Appeal Act can carry out the responsibility of the lower Court. See Nguma vs. AG Imo State (2014) LPELR-22252. I therefore will do the unenviable duty to evaluate the evidence before the lower Court and come to the conclusion as to which of the parties has proved title to the land. The lower Court just ended at saying none of the parties was able to identify the land and therefore ended there. That is, with due respect to the lower Court not good enough. The Court should have evaluated the evidence. In carrying out that responsibility under the law, I will now evaluate the evidence before the lower Court as disclosed in the record of appeal. See Ogbemudia Omoruyi vs. The State (2016) LPELR-40133 (CA); Daniel Bassil & Anor vs. Chief Lasisi Fajebe & Anor (2001) 11 NWLR (Pt.725) 592. In Irene Nguma vs. Attorney General, Imo State (2014) 2 sc (Pt. 11) 1, the apex Court held thus:
“In evaluating the evidence of the witnesses, the trial Court is expected to make full use of the opportunity it had of seeing and observing the witnesses in the course of their testimonies and having regard to applicable law and common sense arrive at the conclusions a reasonable tribunal in that circumstance will arrive at.
It remains within the purview and competence of the trial Court, therefore, for obvious reasons, to first evaluate evidence of witnesses. The trial Court does not share this jurisdiction with the appellate Court and where its evaluation is borne out from the evidence on record, an appellate Court cannot interfere in such a circumstance even if the appellate Court concludes that the trial Court should have evaluated the evidence of the witnesses differently. Where, however, the trial Court failed to use the opportunity afforded it to properly evaluate the evidence adduced at a trial, the appellate Court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice. See Iwuoha v. Nipost (2003) 8 NWLR (pt 822) 308 343-344, Adeye v. Adesanya (2001) 6 NWLR (Pt 708) 1 and Iragunima v. R.S.H.P.D.A (2003) 12 NWLR (Pt 834) 427.”

(f) Inheritance, etc, etc.
It is however the duty of the plaintiff in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title and the law is that the said plaintiff must succeed on the strength of his own case and not on the weakness of the defence, although the plaintiff may take advantage of the defendant’s evidence where it supports his case – See Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252.”
The party seeking title to land must establish his title by one of the five ways of proving title. The party is not under obligation to prove more than one of them but he must prove at least one. He has to be clear in the pleading and evidence the method he is relying on as he will not be allowed to rely on one method in the pleading and rely on another in the evidence. The pleadings and the evidence must agree on the method relied on to prove title. The pleading and the evidence must speak the same language. In fact the party will not be allowed to shift methods during the proceeding. See Odunukwe vs. Ofomata & Anor (2010) 18 NWLR (Pt. 1225) 404. In Matanmi & Ors vs. Victoria Dada & Anor (2013) 7 NWLR (Pt. 1353) 319, Fabiyi, JSC held along this line as follows:
“It is now beyond argument, as it has been consistently held by this Court without any equivocation that there are five ways of proving title to land. A claimant may rely on more than one mode of proving title; if so desired. However, one mode of proving title will suffice, if properly established to the satisfaction of the Court. The five ways of proving title to land are:-
(a) Traditional evidence.
(b) Production of document of title.
(c) Proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land.
(d) Acts of long possession of adjacent land in dispute in such circumstances which render it probable that the owner of the adjacent land is the owner of the land in dispute.
The cases cited by both sides of divide as recounted above are clearly on point. For further reinforcement, I need to also refer to Ogunnaike v. Oluyemi (1987) 3 SC 215 and Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511.” I have gone through the pleadings and evidence of the parties at the lower Court and it is clear that parties relied on traditional history as the root of their title. In the circumstance, what the parties will be required in proving their claim and counter claim over the land in dispute is to state the name of the founder and how he founded the land and begin a trace of how the title to the land moved from him without breaking any level of succession to the person or party on record claiming ownership. Like a relay race in athletics, the baton must move from one person to the other without breaking the chain. If there is any break in such a race, that team will be disqualified. The Appellants to establish their claim must state who founded the land and how it was founded and then trace the successive people in the lineage who exercised ownership right till it got to the Appellants. If this is not traced with mathematical precision, the Appellants will fail in their case. Similarly, the 1st Respondent has the same responsibility to prove the counter claim. If both parties could not successfully discharge the obligation as required by law, both parties will lose as there is no sentiment or emotion in deciding cases. In Matanmi & Ors vs. Victoria Dada & Anor (2013) LPELR-19929(SC), Fabiyi, JSC at page 14 held:
“I need to emphasize the point here that the position of the law on the effect of rejection of traditional evidence is as stated by this Court in Odofin v. Ayoola (1984) 11 SC 72 at 106; (1984) NSCC (Vol. 15) 711 at 720 per Karibi-Whyte, JSC as follows:-
“It follows therefore that where traditional evidence of that alleged from which title is derived, is lacking or rejected, as was in this case, such evidence is not merely inconclusive but also cannot be relied upon whether any other acts positive or numerous can support evidence of ownership. The basic foundation, that is traditional evidence, having been rejected, there is nothing on which to found acts of ownership.”
Let us take a little excursion into the law as to how a party can prove title by traditional evidence or traditional history. The party relying on same must produce by way of evidence the family tree or genealogy of the family from the founder to the person claiming title.

In Awodi & Anor vs. Ajagbe (2014) 12 SC (Pt. 1) 76, the apex Court in driving home this point held:
“… the law is now settled that where a person relies on traditional history as his root of title to land, the onus is on him to plead the root of title and the names and history of his ancestors. He should lead evidence to show same without leaving any yawning gap.
A Court has no jurisdiction to supply any missing link in a genealogical tree from progenitors to a claimant. See Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386; Akinloye v. Eyiyola (1968) 2 NMLR 92; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 and Odi v. Iyala (2004) 4 SCNJ 35 at 54.
Further, the weakness of the defendant’s case in a land matter touching on declarations, does not assist the plaintiffs case. He sinks or floats with his case. See the case of Animashaun v. Olojo (1991) 10 SCNJ 143.”
In the same judgment, Ngwuta, JSC in his contribution was clearer on this point. His lordship held as follows:
“In a claim for title to land based on traditional history, the plaintiff has to plead and prove each of the following:
(1) The person who founded the land and exercised acts of possession.
(2) How the land was found, and
(3) The persons on whom the title to the land devolved from its founder to the plaintiff. See Obioha v. Duru (1994) 10 SCNJ 48 at 61 ratios 6 and 7, Piaro v. Tenalo & Ors (1976) 12 SC 31. The pleading of the devolution as well as the evidence in support must be reliable and credible or plausible otherwise the claim for title will fail. See Eze v. Atasie (2000) 6 SCNJ 209 at 218, Elias v. Omo-Bare (1982) 5 SC 25. The plaintiff must rely on his pleading, he cannot plead traditional history and abandon his pleading to rely on acts of ownership over a long period of time. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 160.”
The real challenge in proving traditional history is not really showing who founded the land and how it was founded, it is in tracing the genealogy from the founder to the Appellants with respect to the title passing from one person to the other in the same lineage. It is therefore not enough to prove that the ancestor of the Appellants or the 1st Respondent founded the land in dispute in time immemorial but they must go on without any addition or assistance from the Court in tracing the successive owner or how the land devolved from the founder to the Appellants. This requires graphic tracing of the family history. A very good case can be lost at this level. Counsel who is relying on traditional history cannot afford just to take what his client says but must take the client through a step by step detail of how the land devolved from the founder to the Appellants. See Chief Dakipiri Odi & Ors vs. Chief Iyala (2004) 4 S.C (Pt. 1) 20; Faleye & Ors vs. Dada &Ors (2016) 14 NWLR (Pt. 1534) 80, Eze Okonkwo & Ors vs. Okeke & Ors (2002) LPELR -1211 (SC). The apex Court in Sogunro & Ors vs. Yeku & Ors (2017) LPELR-41905 (SC), per Nweze at page 18-19 held thus:
“Thus, it is now been settled that traditional evidence must be such as to be consistent and properly link the plaintiff with the traditional history relied upon, Owoade v. Omitola (1988) 2 NWLR (pt.77) 413. Above all, it is not sufficient for a party who relies for proof of title to land on it [traditional evidence], as in the instant case, to merely prove that he or his predecessor in title had owned and possessed the land from time immemorial, Akinloye v. Eyiyola (1968) NMLR 92; Olujinle v. Adeagbo [1988] 2 NWLR (pt. 75) 238; Adejumo v. Ayantegbe (1989) 3 NWLR (pt.110) 417; Anyanwu v. Mbara (1992) 5 NWLR (pt. 242) 386, 399; Alli and Anor v. Alesinloye and Ors (2000) LPELR – 427 (SC) 27 – 28, E-B.
Such a party is bound to plead such facts as (1) who founded the land; (2) how the land was founded and (3) the particulars of the intervening owner through whom he claims, Akinloye v. Eyiyola (supra); Olujinle v. Adeagbo(supra); Adejumo v. Ayantegbe (supra); Anyanwu v. Mbara (supra) 386, 399; Alli and Anor v. Alesinloye and Ors (supra) 27 – 28, E-B.”
Having stated the legal position, let us now see the evidence before the lower Court. I am doing this because the lower Court never went into this. The law allows me to do so. I will like to state that when proving by traditional evidence the parties must clearly show that the land in dispute is what their ancestors founded. That the parties properly identified the land in dispute is one thing but to prove that the identified land is what their ancestor founded is another. The evidence of the Appellants that borders on the traditional history is found in Paragraphs 4-13 of the Amended Statement of Claim found on pages 21-23 of the record. By the pleadings and the evidence Elejigbo founded a vast parcel of land in Langbasa and all the surrounding village including Ijoyi-Nla Village, Ijoyi-Kekere Village and Abegede village. Looking at the survey plans tendered in the Court below, the land in dispute is part of the vast land founded by Elejigbo. He founded same by settlement. He had three children namely Kajerojaiye, Kuyeba and Ibiyemi Olamigbosa. On his death, there is evidence that the land devolved on the children, that is to say it vested on them. To this stage, the evidence is on course. If it continues like this to the Appellants, then the Appellants will have succeeded in proving the title to the land in dispute. These three children of Elejigbo had children and grand children except for Ibiyemi Olamigbosa who never had grand children. The last of Kajerojaiye lineage was Fatai Peluso, the son of Kuda who was one of the children of Akinlola Olotu who is one of the children of Kajerojaiye. For Kuyeba, the last of the lineage is Yekini Aderibigbe, who is the son of Bakare one of the children of Katakarawu, the son of Olomokun the son of Kuyeba. Ibiyemi Olamigbosa had four children namely Oladugba, Ejugbagba, Embasuola and Odaye. Apart from the earlier evidence that on the death of Elejigbo, the property vest or devolved on the three children, there is no such evidence on the devolution of the property on the grand children. The main trace of the genealogy of the family without relating same to the property is an effort that cannot assist the Court in arriving at the decision of tracing the root of title from the founder to the Appellants basing same on traditional history. This makes the case of the Appellants on this regard untenable as to the claim for title, injunction and damages. There is therefore no evidence that the property vested on the grand children. I need such clear evidence. This is not what I can take judicial notice of or supply by myself. Such evidence must be clear and not inferred. I cannot do that because as an unbiased umpire, a Court cannot assist any of the parties in establishing their case. See Kaydee venture Ltd vs. The Hon. Minister FCT & Ors. (2010) 7 NWLR (Pt. 1192) 171.
Assuming, I am wrong, even if I can infer that the property passed to the grand children, there is yet another more fundamental challenge in the Appellant’s case. It is this. At paragraph 13 of the further Amended Statement of Claim, the 1stAppellant averred thus:
“The Claimant aver that Ahaji Waheed A. Agbomabini, the 1st Claimant is the current head of the Elejigbo Family and the Claimants further aver that it was Elejigbo who begat Ibiyemi Olamigbosa and it was Osenatu who begat Alhaji Waheed Agbomabini.”
By the above paragraph, the 1st Appellant is the son of Osenatu. Who is Osenatu, where is he coming from? Who is Osenatu’s father and is he a member of the lineage of Elejigbo? The Appellants are unable to answer all these question. There is a break in the chain of ownership vis a vis the root of title of the Appellants. Paragraph 7 mentioned the names of the children of Ibiyemi to be Oladugba, Ejugbagba, Embasuola and Odaye. Osenatu is therefore not a child of Ibiyemi. Even if the family tree was said to be alright but the introduction of Osenatu has completely broken the chain. If Osenatu is removed, there is no link between Fatai Peluso, the last name in Kajerojaiye to the 1st Appellant. The same position with Yekini Aderibigbe to Appellant. There is no explanation for the gap between them and the 1st Appellant. This is fundamental and damaging to the case of the Appellants as I hold that the Appellants have not proved the root of their title in line with traditional history which they relied on. It is therefore not difficult for me to hold as the lower Court did that the Claims of the Appellants in the lower Court were not proved and the burden was not discharged. The effect of this is that the proof of traditional history fails and in the circumstance the claim of the Appellants will fail and the appeal dismissed. See Oyesiji & Anor vs. Akindoyin (2012) LPELR-19697 (CA); Sunday Eze vs. Gilbert Atasie (2000) 6 S.C. (Pt. 1) 214.

It will not be out of place to also mention that where there is conflict on the evidence in support of the traditional history, the evidence will be unreliable and the claim based on it will fail. See Salami vs. Gbodoolu & Ors (1997) 4 NWLR 277; Eboade & Anor vs. Atomesin & Anor (1997) 5 NWLR (Pt. 506) 490. There seems to be a difference between the evidence covered in Paragraph 13 of the Amended Statement of Claim and paragraph 7 of the same pleading. I reproduce paragraph 7 for ease of reference:
“7. The Claimants aver that among the children of Kajerojaiye were I. DORO II. AKINLOLU OLOTO and the only child of Kuyeba was OLOMOKUN and further, the children of Ibiyemi Olomigbasa were I. OLADUGBA II. EJUGBAGBA III. EMBASUOLA AND IV.ODAYE.”
The name of Osenatu featured in paragraph 13 in the family genealogy of the Appellants’ family but that name did not feature in paragraph 7. This conflict works against the Appellants’ case. In the circumstance, this appeal fails therefore and it is hereby dismissed.

I now turn to the counter claim. The fact that the Claim fails and the Appeal is dismissed is not automatic that the counter claim will succeed. This is because, the 1st Respondent based on the counter claim has the responsibility to prove his own case.

Once again, I am assuming the role of the lower Court who did not deem it necessary to evaluate that evidence, that is to say whether the 1st Respondents has proved the root of his title to the land in dispute. I will go into the law again as to what the 1st Respondent need to prove to succeed. For completeness, the 1st Respondent also is relying on traditional history. His own testimony is found in paragraphs 10-13 of the Amended Statement of Defence and counter claim found on pages 123-124 of the supplementary records. From the story of the 1st Respondent, the original owner of the land or the founder was Jikoji who gave it to Pa Aminu, the ancestor of the 1st Respondent who was not the founder of the land. He migrated from Bida to Badore. He was granted the land to farm since he was married to Selatu, the daughter of the Bale of Badore. He lived there and gave birth to Tairu. Tairu begat Abdullahi who is the father of the 1st Respondent, Alhaja Hadijat Tairu. While there is clear evidence of a proper genealogy from Pa Aminu to the 1st Respondent, I make bold to say that the evidence before the lower Court did not satisfy the prove of ownership of the land by traditional history. In the first place the land was not founded by the ancestor of the 1st Respondent. It was granted to him for farming purpose. That apart, there is no evidence of devolution of the property from one person to the other. There is no evidence that shows that the title of the property moved or passed from one child of Pa Aminu to the other until it got to the 1st Respondent. There is nothing linking the property to the family genealogy. The 1st Respondent was sued in a representative capacity, there is no pleading or evidence to show how the property became a family property. The property even led to be called a Tairu village. I am also not satisfied that the 1st Respondent has proved his title by traditional history. The counter claim of the 1st Respondent also fails and consequently, the cross appeal also fails and it is also dismissed.

By way of obiter, if the parties had relied on other methods or ways of proving title, maybe it would have swayed this Court one way or the other but having relied solely on traditional history, their case will sink or swim with their evidence on traditional history and nothing more. In Odunukwe vs. Ofomata & Anor (supra) the apex Court held:
“Where the plaintiff and the defendant anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial Court in the circumstances is to weigh their evidence on the imaginary scale and determine which of the two is weightier. Mogaji v. Odofin 1978 4 SC 91; Odofin v. Ayoola 1984 11 SC 32; Ibikunle v. Lawani (2007) 3 NWLR pt.1022, Pg.580; Okoko v. Dakolo (2006) 14 NWLR 1000, pg.401.”

The Appellants and the 1st Respondent having failed to prove the root of title by way of traditional history cannot succeed in their appeal and cross appeal. For completeness, the appeal fails and similarly, the cross appeal also fails. Both the appeal and the cross appeal are dismissed. The decision of the lower Court is upheld but I must hasten to add that while I do not agree with the reason for the judgment of the lower Court, I agree with the conclusion.
Parties are to bear their own cost.

JAMILU YAMMAMA TUKUR, J.C.A.: I read in advance a draft copy of the judgment just delivered by my learned brother EBIOWEI TOBI JCA and I adopt the judgment as mine with nothing further to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, EBIOWEI TOBI, JCA had graciously obliged me with the draft of the lead judgment which has just been delivered, and in which he found both the appeal and the cross appeal as lacking in merit and has consequently dismissed both.

I really do not have anything to add than to express the displeasure of this Court, that the lower Court failed to carry out its primary responsibility as a Court of first instance who saw and listened to the witnesses by evaluating the evidence led before it. This Court was then burdened to undertake that responsibility pursuant to the provision of Section 15 of the Court of Appeal 2004 when its primary responsibility as an intermediate Court of appeal, is to review the findings and decisions of the lower Court in order to enhance the quality of the decision which will apply to both parties and set precedent for future cases having similar facts.

My learned brother had admirably in the lead judgment, exhaustively and comprehensively dealt with the three (3) issues which he distilled from the grounds of appeal in both the appeal and in the cross appeal. I adopt the analysis and resolution of the issues as mine and I agree that both the appeal and the cross appeal be dismissed for the reasons which he has ably canvassed in the lead judgment and I abide with the consequential orders made that both parties are to bear their respective costs.
Appeal and the cross appeal are dismissed by me too.

Appearances:

MORENIKE OJO (MRS) For Appellant(s)

ABAK ESQ. – for 1st Respondent
K.K. BAKARE ESQ. – for 2nd Respondent For Respondent(s)