Chief Amodu Tijani Dada & Ors. V. Mr. Jacob Bankole & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The original plaintiff at the trial court was Alhaji Bisiriyu Sule, He died whilst the matter was before the court below on appeal. The present appellants were substituted for him by the court below, similarly the original defendants were three, The 2nd and 3rd of them died whilst the case was pending at the trial .court, The subsisting 1st defendant prosecuted the case to conclusion at the High Court. He also died whilst the matter was before the court below. The present respondents were accordingly substituted for him.

The appellants, as the representatives of Ikotun and Matori families of Iyesi Otta, Ogun State brought their suit against the respondent (as defendant) as the representative of Isidana Family of Iyesi, Otta, Ogun State. In their 3rd Further Amended Statement of Claim, the appellants claimed against the respondents the following reliefs:

“1. A declaration that the plaintiff is entitled to a statutory right of occupancy over all that piece or parcel of land situate, lying and being at Iyesi village, Otta, Ogun State which is clearly delineated blue on the survey Plan No. SEW/W/2496/4 dated 8th May, 1984. Annual rent of the said land being N100.00.

2. A declaration that by refusing to pay customary tribute and by claiming ownership of the piece of land which the defendants hold of the plaintiff as customary tenants of the plaintiff, the defendant have (sic) thereby forfeited their interest as customary tenants to the Plaintiff. Annual rent of said land being N100.00
3. Possession of the said parcel of land in dispute.
4. Perpetual injunction to restrain the defendants, their agents or assigns from encroaching on the said parcel of land.”

The parties filed and exchanged pleadings which they amended a number of times. The suit was tried by Oduntan J. of the Ogun State High Court. The Plaintiffs called six witnesses. The defendants called seven witnesses. On 19-12-94, the trial judge in his judgment granted all the four reliefs sought by the plaintiff. The defendant was dissatisfied with the said judgment. He brought an appeal before the Court of Appeal, Ibadan (hereinafter referred to as ‘the Court below’). On 5-7-2007, the Court below in its judgment allowed the appeal. The judgment of the trial court was set aside. Although the court below did not specifically say so, but the implication of the judgment was that the plaintiffs’ claims in their entirely were dismissed.

On 26-11-2001, the court below substituted the present appellants for the original plaintiff who was dead. Similarly, the court on 21-2-02 substituted the present respondents for the original defendant who was also reported dead. The appellants were dissatisfied with the judgment of the court below. They have brought this appeal. In their amended Notice of Appeal dated 22-03-05, they raised fifteen grounds of appeal. From these grounds of appeal, the appellants distilled two issues for determination. The issues are:

“1. Whether having regard to the manner in which the respondents/appellants in the lower courts formulated their 2nd issue for determination and the Court of Appeal having held that their argument on inordinate delay was unmeritorious, the Court of Appeal was right in proceeding to re-evaluate the evidence of both parties at the trial court, set aside findings of fact and make findings of facts thereon and come to the conclusion that the Respondents/appellants in the lower court had failed to discharge the burden of proof on it on the basis that the 2nd issue for determination had a second limb and it covetailed into whether the learned trial judge was right in giving judgment based on evidence adduced before him.

2. Whether the learned trial judge wrongly made use of evidence in previous proceeding and if so whether this was gross enough to vitiate the proceedings and overturn be judgment; whether the failure of the Court of appeal to make a pronouncement on whether or not the purported error of the trial judge is making use of evidence in a previous proceedings is gross enough to vitiate the judgment of the trial court is fatal to the judgment of the Court of Appeal.”

The respondents in the appeal have also formulated two issues for determination. The respondents’ would appear to be a better presentation of the matter in contention between parties. The issues read:

“i. Whether the second issue formulated by the appellants (now respondents) at the Lower court did not dovetail into a complaint against evaluation of evidence by the trial court thus empowering the learned Justices of the Court of Appeal to proceed to re-evaluate the evidence of both parties and make appropriate findings after their Lordships had discerned from the record of appeal that the trial judge had failed to avail himself of the opportunity to conduct a proper evaluation of the facts presented by parties at trial.

ii ‘Whether the learned Justices of the Court of Appeal were not right in holding that the leaned trial judge had m ade a wrong use of evidence in previous proceedings in a gross manner which engendered a miscarriage of justice and thus vitiated the judgment of the learned trial judge.”

I intend to consider together the two issues for determination because both are closely inter-related. But it is helpful to expose briefly the nature of the dispute which was submitted to the trial court for adjudication. The case made by the plaintiff in his 3rd Further Amended Statement of Claim may be summarized thus:

The land in dispute was first settled upon by the Plaintiff s great grandfather by name OLAKORU a hunter who migrated from Ile-Ife. Olakoru named the land lkotun. Following the death of Olakoru, his descendants known as lkotun and Matori families have continuously exercised rights of ownership over his land. In exercise of such right, a portion of the land was given to one Akilodi. The said land was known as Isidana compound. At Akilodi’s death, his land was inherited by his son Owolola. Owolola later brought on the land other persons including the defendant’s predecessor-in-interest as customary tenants. The defendant paid customary tributes in the form of yam and oil to Ikotun and Matori families. When the defendant felled trees on the land, he gave portions thereof to plaintiff’s families. The defendant has since been felling trees without paying the due tributes to the plaintiff s families. He has also laid a claim of ownership to the said Isidana land. The plaintiff therefore brought this suit claiming as earlier stated in this judgment.

The defendant raised his own traditional history which contradicted the plaintiffs. The defendant pleaded that the land was first settled upon by his ancestor named Osidana who migrated from Ile-Ife over two hundred years ago. Osidana was :l hunter. He also cultivated the land. He brought a shrine thereon which was worshipped as a deity. The shrine, known as ‘Amoola” was still regularly worshipped. The descendants of Osidana have through the years exercised acts of ownership over the land and granted portions thereof to diverse persons. The defendant denied that he and his forbears were plaintiffs’ customary tenants.

It was on this state of pleadings that the suit was tried by Oduntan J. at the Ogun State High Court. At the trial, the plaintiff tendered as exhibit ‘A’, a transcript of evidence given by one Isaac Bankole in suit No. OTB/172. CV.71 between Alhaji Bisiriyu Sule (the present plaintiff) and Michael Aina at Ota Grade B Customary Court. The said Isaac Bankole did not testify before the trial court in the current proceedings. Regrettably however, the trial judge, as I shall shortly demonstrate, erroneously made extensive use of the testimony of Isaac Bankole in the earlier case. Indeed the testimony of Isaac Bankole in exhibit’ A’ was used as a benchmark :’or assessing the veracity of the evidence given by other defence witnesses in the current case.

At page 319-320 of the record of proceedings, the trial judge said:

“At page 6 of exhibit’ A’, 1st D.W. stated under cross-examination thus-

‘Ogunsi begat Aina Ota. Aina ota was the son of Osidana. Ogunsi was the son of Osidana.’

It is obvious that 1st D.W. has prevaricate in respect of Ogunsi. In exhibit ‘A’ page 7, 1st defendant’s witness stated that Oyekanmi begat Ogunsi, Ogunsi begat Bankole and Aina Ota Bankole Ota is my own father.

(c) At page 7 of exhibit ‘A’, 1st D.W. stated thus-

‘The road bears Osidana, I do not know whether land is allotted to anyone on lsidana land. I was not told by my great grand father. I did not know any person to whom land was allotted to on the land of Isidana.’

1st Defendant’s Witness Isaac Bankole at page 7 of exhibit A stated under cross examination thus – ‘We have farm on the land in dispute; We did not allot land to anybody on the land in dispute.’

The evidence of 1st defendant’s Witness at page 7 of exhibit’ A’ shows that the defendants are customary tenants of the plaintiffs and that they had no title to the land in dispute. The defendent’s family could not have allotted land to the 3rd D.W. or his father.

At page 7 of exhibit’ A’, the 1st Defendant Witness, Isaac Bankole during cross-examination stated thus-

‘….The first farm my brother cultivated on the land in dispute was seized from him by the father of the plaintiff. The second plaintiff is the on harvesting the Orogbo today because he has the right of ownership…Owolola was the first person to cultivate firm on the land in dispute and he is the descendant of second Plaintiff’s great grand father.’It shoud be noted that Isaac Bankole’s farm is within the area edged green on exhibit ‘O’ claimed by the defendant.”

Section 34(1) of the Evidence Act provides:

“34( 1) Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding or in a later stage of the sarLe judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be fouLd or is incapable of giving evidence or is kept out of the way by the adverse party or when his presence calIDot be obtained without an amount of delay or expense which, in the circumstances of the case the court considers unreasonable:

Provided-

(a) that the proceeding was between the same parties or their representatives in interest;

(b) bat the adverse party in the first proceeding bad the right and opportunity to cross-examine; and

(c) that the questions in issue were substantially the same in the first as in the second proceeding.”

Now exhibit ‘A’ in the current proceeding was tendered by consent. There was therefore no opportunity of testing if its reception in evidence complied with the requirements under section 34(1) above. It is settled law however that such evidence may be used for the purpose of cross-examining as to credit: See Alade v. Aborishade [1960] SCNLR 398; Shonekan v. Smith [1964] 1 All NL.R. 33. It is wrong and improper to treat the evidence given by a witness in a previous proceeding as one of truth in a subsequent or later proceeding, in which he has not given evidence. See Obawole & Anor. v. Coker [1994] 5 NWLR 416, Alade v. Aborishade (supra); Enang & Anor v. Ukanem & Ors. [1962] 1 All N.L.R. 530, and Ariku v. Ajiwogbo [1962] 2 SC NLR 369.

It is apparent from the passage I have reproduced above from the judgment of the trial judge that the court used the evidence given by Isaac Bankole in a previous case as if he had given the evidence in the current case. The evidence given by Isaac Bankole in exhibit’ A’ was used by the trial judge to assess the veracity of the defence witnesses in the current case. The evidence given in the current case which did not conform with that of lsaac Bankole on the previous case was seen as Ultrue. This was a very erroneous approach. The court below in the lead judgment of Onalaja J .C.A. (presiding) reacted to the occurrence in these words:

‘Applying the cases of Ayinde v. Salawu [1989] 3 NWLR (Pt. 109) page 297 at 315; Alade v. Aborisade;(1960)

SCNLR 398 ;[1960J 5 FSC 167 at 172-173; Owoyin v. Omotosho;(1961) 2 SCNLR 57;[1961] 1 All NLR 304 at 308; Ariku v. Ajiwogbo;(1962) 2 SCNLR 369 ;[1962] 1 All NLR 629 at 631-2 all pointed to the rule that evidence given in a previous case can never be accepted as evidence by the court trying a later case except under Section 34( I) Evidence Act, which was not applied by the learned trial judge. Having not complied with Section 34 Evidence Act, exhibit A was inadmissible notwithstanding its admissibility without objection by appellant. As exhibit A was inadmissible this court has power to expunge it from the record of appeal 3.S a trial court was only allowed to admit admissible evidence, so this Court should expunge exhibit A as decided in Ariku v. Ajiwogbo (supra)”

I agree with the reasoning and conclusion of the court below on the point. Now, the present respondent before us was the appellant before the court below. It is more precise whilst discussing this aspect to refer to him as the defendant and the present appellant before us as the plaintiff. The defendant in his appeal to the court below against the judgment of the trial court formulated as his 2nd and 3rd issues for determination in the appeal the following:

“:2. Whether the learned trial judge owing to the inordinate lapse of time between when hearing commenced and the delivery of judgment had not become a complete stranger to the facts of the case and was consequently not in a position to form a proper view of the credibility of the witnesses on the most vital and contested issues. This issue encompasses grounds B, D, E, F, G, I and k of the grounds of appeal.

3. Whether the learned trial judge was right in relying and making use of evidence in another proceeding to demolish the defendant’s case other than as provided by law. This issue arises from ground C of the grounds of appeal.”

In reacting to issue No.2 above, the court below said at pages 469-470 of the record:

“After a careful consideration of the arguments proffer by appellant and respondent on issue 2 in their respective briefs of arguments notwithstanding that I resolved the issue in part on inordinate delay in favour of respondent as there was strict compliance with the provision of Section 294( I) 1999 Constitution on the second limb of issue 2 as to evaluation, ascription and assessment of evidence leading to the burden of proof that as respondent sought declaratory and injunctive orders after an appraisal of the facts and law based on the pleadings I come to the irresistible conclusion that respondent on the balance of probability did not establish the grant of rights of occupancy to him. the grant by the lower court more especially that the burden on appellant who did not set up a counter claim was merely to defend, defended effectively. The judgment entered against appellant was not properly proved against him, his case is cogent and more convincing thereby the second limb of issue 2 is resolved in favour of appellant leading me to allow the appeal. The judgment of the lower court that granted statutory right of occupancy in favour of respondent against appellant was a wrongful exercise of the judicial discretion of the learned trial Judge and thereby setting aside the said grant of statutory right of occupancy relief one of the claims in paragraph 30 of the Statement of Claim is dismissed as the grant of statutory right of occupancy is refused by me.” (italics mine)

It would seem that the approach taken by the court below was to rely on what it described as the second limb of the 2,d issue for determination to arrive at the conclusion that the general evaluation of evidence by the trial court was faulty and unfair to the defendant. It is this aspect of the judgment of the court below that has come under attack and criticism by the plaintiff/appellant. Plaintiff s counsel has argued that it was an error on the part of the court below to have relied on a supposed 2ndpmt of issue No.2 to upset the judgment of the trial court wherein the evidence of witnesses had been fully considered and evaluated. Counsel submitted that the court below was bound to restrict itself to only the issues raised by parties before it and that there was no jurisdiction to enlarge or expand the frontiers of the issues submitted to the court for adjudication. Counsel relied on Olowosago v. Adebanjo [1998] 4 NWLR (Pt. 88) 283 where this court said:

“It is necessary to emphasize the purpose of formulating issues D)r determination in briefs. Like pleadings to a litigation between parties the issues formulated are intended to accentuate the real issue for determination before the court.”

Other cases referred to by appellant’s counsel include F.B.N. (Nig.) Plc. V. M O. Kanu & Company [1999] 9 NWLR (Pt. 619) at 496-497; Rotimi v. Faforiji [1999] 6 NWLR (Pt. 606) 305, Acme Builders Ltd. v. K.S.W.B [1999] 2 NWLR (Pt. 590) 288; Iguebe v. Ezuma [1999] 6 NWLR (Pt 288) 205.

I have no doubt that appellant’s counsel is correct in emphasizing that parties and the court alike must confine themselves to the issues formulated by the parties for determination in the matter before the court. It is only when the court confines itself to the issue submitted to it for determination that it can be said that it is engaged ill an attempt to fulfill its constitutional duty of granting a fair hearing to parties engaged in a dispute. A court which goes outside the issues submitted to it for adjudication is in a true sense only engaged on a frolic of its own and not performing its constitutional role. I cannot therefore fault the argument of counsel on the principle espoused in his argument.

But it would appear that counsel viewed the matter too narrowly. Counsel must have erroneously taken the view that the power exercised by the court below in evaluating the available evidence after the findings of the trial court based on the evidence of a witness in exhibit A who did not testify before the trial court has been excluded was unavailable to it. I reproduced above the 3rd issue for determination raised by the defendant before the court below. In his ground ‘C’ of the Notice of Appeal, the defendant raised the complaint on the impropriety involved in a trial court basing its findings on the testimony of a witness in a previous case when evaluating evidence in the current case. The said ground of appeal reads:

“C. The learned trial Judge erred in law in relying on evidence of witnesses in abortive proceedings in ways otter than those prescribed by law and thereby occasioned a miscarriage of justice.

Particulars of Error

(i) The evidence of one Isaac Bankole contained in Exhibit ‘A’ but who did not give evidence in these proceedings was used against the Defendant.

(ii) Evidence that were not used by Plaintiff’s counsel to contradict DWI were unilateral1y employed by the Court to damage Defendant’s case without the witness being given the opportunity of reacting thereto one way or the other.

(iii) Evidence in earlier or abortive proceedings are generally irrelevant to current proceedings except when deployed to test the veracity of a particular witness in a current case.”

The defendant formulated his 3rd issue on the said ground of appeal ‘C’. At pages 361 to 366 of the record of appeal, the defendant’s counsel copiously argued that the trial court was in error to have relied in the current case on evidence given in a previous case. The plaintiff s counsel similarly canvassed arguments at pages 394-397 of the record to counter the argument of the defendant’s counsel. Clearly therefore this was not a case where the court below responded to an issue not raised before it. The court below was clearly responding to the defendant’s issue 3.

If as the court below found and I agree with it, that the trial court was in a gross error to have relied on the evidence of a witness who did not testify before it in the evaluation of evidence, surely there was a plenitude of power available to the court below to determine whether the evidence available or left on record after the testimony of lsaac Bankole in exhibit ‘A’ has been excised would be sufficient to sustain the judgment given in favour of the plaintiff by the trial court. The court below made the: mistake of arriving at the right decision whilst it purported to be considering the second leg of the 2nd issue whereas it could have come to the same conclusion by simply considering defendant’s issue No.3 which copiously raised the same matter. This was a patent mistake made by the court below which did not derogate from the soundness of the reasoning that a trial court could not in a current case rely on the testimony of a witness in a previous case who has not testified before it.

I observed earlier that the court below by implication dismissed the plaintiff/appellant’s case. Was the court below correct to have done so Ordinarily, the nature of the error made by the trial court would have warranted the court below making an order for a retrial not dismissal of the plaintiff s case. But it seems to me that the court below was right in its conclusion that the trial court completely failed to properly evaluate and assess the impact and effect on plaintiff s case of the findings which the trial court itself made. Indeed, it seems to me that on a close examination of the plaintiffs pleadings alone, his case would fail. Let me start with a consideration of the pleadings. In paragraphs 14 to 24(b) of the 3rd Further Amended Statement of Claim, the plaintiff pleaded:

“14. Iyanda the grandson of Olakoru exercising rights of ownership on behalf of the Ikotun and Matori Families also gave a portion of family land to one Akilodi, who came from Ijaliki

15. The land given to Akilodi was known as Isidana Compound.
16. After Akilodi died, the land was inherited by his son, Owolola.
17. Owolola had four children namely Oketoyinbo, Salami Akineyi, Suberu EJegbede and Sanni Oniyide.
18. Later three other strangers, Aina Ota, Bankile and Alakoye came to Iyesi and were allowed by Owolola to stay with him on the said land inherited by him from Akilodi, his father.
19. The said Aina Oata, Bankole and Alakoye we,re only given shelter by Owolola and they did menial jobs all over Iyesi.
20. When Owolola died, his piece of land was shared out amongst his four children who continued to farm the land as customary tenants.
21. However, after the sharing out of Owolola’s land one of the sons, Suberu Elegbede committed an offence in the town and fled to Konifewo (his mother’s birth place) so as to avoid punishment, abandoning his piece of land.
22. Suberu Elegbede’s land was as a result given by the Ikotun and Matori Families to Jinadu Osaniyibi, brother to Isaac Bankole and one of the sons of Bankole (given shelter by Owolola referred to in paragraphs 18 and 19 above) as customary tenant to farm after he approached the Family.
23. The Defendant, Isaac Bankole and Amusa Bamidele Aina assisted and helped to farm the said piece of land with Jinadu Osaniyibi till the latter died.
24. When Osaniyibi died the Defendants with Isaac Bankole and Amusa Bamidele Aina continued to farm the piece of land as customary tenants.

24b. The Plaintiff avers that the Ikotun and Matori Families gave the Defendants the land in dispute as customary tenants.”

The averments reproduced above show that the plaintiff s Ikotun and Matori families gave the Isidana land in dispute to one Akilodi. When Akilodi died, the land was inherited by his son Owolola. When Owolola died, he was succeeded in interest by his children. It was Owolola who according to Plaintiffs pleading gave Bankole, the defendant’s predecessor-in-interest access to the land. The defendant with one Jinadu Osaniyibi farmed the land as customary tenants. It was the land shared out to Suberu Elegbede, one of Owolola’s sons that was given to Jinadu Osaniyibi, a brother to Isaac Bankole. Isaac Bankole and Amusa Bamidele Aina only assisted Jinadu Osaniyibi to farm the land until the latter died. On these averments, the defendant was portrayed as no more than a farm hand or labourer who did not bdong to either the Akilodi or the OwoJola Family. At the highest, the defendant on the pleading would be no more than a sub-customary tenant since the Ikotun and Matori families did not directly grant him any land. The big question is, hew could the plaintiffs Ikotun and Matori families bring an action to evict a sub-customary tenant without joining to the suit the Akilodi or Owolola family to whom the land was directly granted For this reason alone, the plaintiff’s suit was flawed. At page 68 of the record, the plaintiff who testified as 1st P.W. testified thus:

‘My family has constituted this action against Isidana family. My family gave the Isidana Family the land in dispute as their customary tenants to farm on it.

The lsidana family pays my family customary tributes over the land in dispute.”

On the genealogy pleaded by the plaintiff, the defendant or his family was stated to be a member of the lsidana family. So where is the customary tenancy relationship between the defendant and the plaintiff’s family. The defendant in paragraphs 9 and 14 of their Further Amended Statement of Defence pleaded thus:

“9. The land in dispute marked GREEN in the Survey Plan attached hereto was settled upon by the Defendant’s ancestor OSIDANA when he migrated from ILE-IFE over 200 years ago.

xxxx

14. Osidana also brought from Ile-lfe a deity known as ‘AMOOLA’ which is still worshipped at Iyesi.”

The defendant gave evidence that the land was called Osidana after their ancestor who first settled on the land. The plaintiff agreed that the land was called Isidana which appears to be the corrupted version of Osidana. How did a parcel of land given out under customary law come to bear not the names of the landlords or owners but that of the tenant The court below at page 466 of the record made a remark on this thus:

“The 2nd PW in the underlining alone of his testimony stated that his ancestor did not give name to the land in dispute but the land is being called by the name given it by the appellant although the naming or calling of the land in dispute may be called by one party and named differently by the other party. It is unheard or preposterous to accept to name a land by a person alleged to be a customary tenant. Also though respondent alleged that appellant was a customary tenant yet 2nd PW admitted that they built on the land in dispute and farmed on land in dispute, it is into law that a customary tenant cannot name the land in his own name as against the landlord’s name.”

The trial judge at page 322 of the record appreciated that the defendant had been on the land for a long time when he observed:

“There is no doubt that the defendants family has been in long possession of the land in dispute. As asserted by him, this has been for 200 years. Evidence of long possession without more cannot confer title on them as they have not asserted any right of ownership.”

At page 313, the trial judge also found:

“Both parties to this action have denied the existence of certain facts and which this Court does not believe. For instance, some of the plaintiffs witnesses have denied the existence of idols on the land in dispute but from the evidence of the 7th D.W. and exhibit ‘G’, it is without any doubt that there exists some idols on the land in dispute.”

Section 146 of the evidence Act provides-

“When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

In Veronica Graham & Ors. v. Ilona Esumai & Ors. (l984) 11 SC 123 at 149, this court said:

“The presumption in Section 145 (now S. 146) of Evidence Act is a rebuttable presumption and it is rebutted if on the totality of the evidence led on both sides, the trial judge is not satisfied that the case in hand is a proper case for him to exercise his discretion to grant a declaration. It is perfectly legitimate for a trial judge to hold that the evidence taken as a whole includmg any presumptions in favour of the claimant) does not satisfy him that a case for a declaration has been made out.”

Similarly in Oduaran v. Asarah {l972) 5 S.C. 272 at 285-286, this Court per Elias CJN sad:

“…It is clear that, on the issue of title, where a plaintiff claims that a defendant is his customary tenant on a piece of land, while the defendant on the other hand also claims to own the land, the question before the court, whether the defendant’s possession was by the plaintiff s permission. It is for the plaintiff to show that they pet the defendant there.”

It seems to me that at the end of the day, the central question is whether on the totality of the evidence available, the judgment given by the trial court could be sustained. I think not. In coming to this conclusion, I bear in mind that on plaintiff s own showing there are other persons interested in the land in dispute who were not made parties to the case.

At page 78 of the record, the 2nd P.W. Rasaki Owolola testified thus:

“The lkotun and Matori families gave Owolola family land at lyesi village and part of this land is the one in dispute. I know the Farmland of Isidana. The defendant and Arnusa Bamidele are Farming there. The Owolola family gave the defendant and his brother land to farm at Iyesi because they are strangers and this is part of the farm given by Ikotun and Matori families to Owolola to farm upon and it is known as lsidana farmland. I identify the said Isidana Farmland to our Surveyor Seweje. I know the farmland of Alfa Salisu Fatusi which is part of the lkotun and Matori families land. This is also part of the land in dispute.” (italics mine)

The evidence of 2nd P.W. above conveys that it was part of the land given to Akilodi/Owolola family that the Owolola family gave to the defendant as customary tenant. Remarkably Owolola family is not a party to this case. Further, the evidence suggests that Alfa Salisu Fatusi owns a portion of the land being litigated upon in this case and he has not been made a party. If the plaintiff has not joined OwoloJa and Alfa Salisu Fatusi to the suit, how could a declaration of title be made in plaintiffs favour See Sanyaolu v. Coker [1983] 1 S.C.N.L..R. 170 at 181 and Oduola v. Gbadebo Coker [1981) 5 S.C. 197 at 220.

On the whole I am satisfied that the court below was correct in its decision to dismiss plaintiff’s suit. The plaintiffs woefully failed to establish by evidence the title which asserted against the defendant. I would accordingly dismiss this appeal with N10,000.00 costs against the plaintiffs/appellants in favour of the defendants/respondents.

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SC.40/2003