Alh. Issa Onisese V. Reverend Oyeleye (2007)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE J.C.A.

At the High Court of Justice Ilorin, on behalf of Alao Gambari Gurumoh family the plaintiff/Appellant by his writ of summons dated the 17th day of March, 1999 and filed on the 18th March, 1999 together with his Amended Statement of claim filed on the 29th day of November, 1999 claimed as follows from the Defendant/Respondent: –

“(a). A declaration that the plaintiff’s family (Alhaji Gambari Guramoh) is the Customary owner of the parcel of land measuring thirty plots situate, lying and being at Kulende near Niger River Basin Ilorin to the exclusion of the Defendant or any other person(s).

“(b). A declaration that the purported sale of part(s) of the said land by Madam Ode Alao Gurumoh to the defendant (if any) is null and void and of no effect whatsoever.

“(c). A perpetual injunction restraining the defendant, his agents, servants privies or any other person(s) deriving authority from him from commission of further acts) of trespass on the plaintiff’s family land.”

Pleadings were exchanged with the Defendant also granted leave by the lower Court to amend his statement of Defence, which he filed in the amended form on the 24th day of March 2000. At the close of pleadings, the plaintiff testified as PW.1 and called two witnesses as PW. 2 and PW.3 respectively while the Defendant testified as DW.1 and called a witness DW. 2.

At the close of the parties case the learned trial judge held as follows at page 127 of the Record of proceedings: –

“On the whole, having regards to the totality of the foregoing this suit is bound to be dismissed on three fronts namely: that it is statute barred; that the area of the land being claimed by the plaintiff is not certain and that the plaintiff on the evidence before me has not proved his case which is anchored on traditional evidence to be entitled to the reliefs claimed. Therefore the claim of Alhaji Isan Onisese for and on behalf of Alao Gambari Gurumoh family against the defendant fail (sic) and is hereby dismissed.”

Piqued by the above judgment, of the learned trial judge, the plaintiff filed three Original grounds of Appeal in the Lower Court and with leave of this Honourable Court filed three Additional Grounds by an Application on Notice dated and filed on the 15th day of February, 2006. Devoid of the particulars I dare reproduce the said Grounds of Appeal, which are couched in the following terms: –

“GROUND 1: The trial High Court of justice erred in Law by applying the provisions of Limitation Law (Cap.89) Laws of Kwara State, 1994.”

“GROUND 2: The Honourable trial Court misdirected itself and erred when it held that: – “The evidence of the plaintiff is devoid of graphic description of the (sic) being claimed.”

“GROUND 3: The learned trial Judge misdirected himself by failing to make finding on the piece of evidence before him, given by PW.2 “Adijat Ajibola that the entire family did not rise to challenge the defendant but the plaintiff engineered the Suit”.

“GROUND 4: The learned trial Judge erred in law when he failed to sufficiently find and evaluate the evidential value of Exhibit C duly admitted by the Honourable trial Court.

“GROUND 5: The Honourable Court misdirected itself in law when it held that the plaintiff cannot take advantage of the common Grounds admitted by the parties.

“GROUND 6: The judgment is against the weight of evidence.”

In accordance with the Rules of this court briefs were ordered to be filed which parties duly obliged and arising from the Grounds of Appeal the learned Counsel for the Appellant A. B. Jimoh Esq. in the Appellant’s Brief of Argument filed on the 14th day of March, 2006 formulated four issues for determination. They are reproduced below as follows: –

“1. Considering the nature of and the tenure of the land in dispute, can the right of action be extinguished by the application if statute of Limitation?

“2. In view of oral and documentary evidence placed before the trial court, could the court safely or rightly hold that the land in dispute was not described with certainty?

“3. Whether the plaintiff/Appellant failed to prove the case based on traditional evidence?

“4. Whether the weight of evidence is not against the judgment of the Honourable Court.”

On the other hand, in the Brief settled by Awomolo, Otaru & Co, on behalf of the Respondent a Notice of Preliminary objection pursuant to Order 3 Rule 15 (1) of the Court of Appeal Rules was given to the effect that Grounds 2 and 3 of the Grounds of Appeal together with their particulars are incompetent on the grounds that: –

i. Ground 2 alleged that the Court “misdirected itself” “and erred.”

ii. Ground 3 also simply stated that the learned trial judge “misdirected himself”, and the particulars thereof are at variance with the said ground.”

In that same Brief dated 6th October, 2006 and was deemed filed and served on the 11th October, 2006, the Learned Roland Otaru Esq. SAN of Counsel on behalf the Respondent in the alternative distilled out three issues as emanating from the Grounds of Appeal which are stated hereunder inter alia: –

1) Whether the plaintiff’s action was statute barred?

2) Whether having regard to the evidence proffered or adduced by the plaintiff and his witnesses, the certainty of the land in dispute was proven?

3) Whether based on the oral and documentary evidence before the learned trial Judge, the plaintiff was entitled to judgment?”

On the 25th day of April, 2007 when the Appeal was to be heard Counsel on both sides sought leave of this court to adopt their respective Briefs, Learned Counsel for the Appellant was however allowed to make oral adumbration on Issue Number 1 (One) as it relates to the statute of Limitation. According to him, whether the statute of Limitation is local or statute of General Application as received from England, none of them is applicable to the circumstance of this case. He alluded to the Statute of Limitation 1623 as contained in pages 17 and 18 of the Learned Counsel for the Respondent’s argument and further relied on Megarry and Wade – “The Law of Real Property” 4th Edition at pages 1010-1011, to submit that if the said Act is invoked the suit is not statute barred in that the Limitation period for commencement of actions by that Act is 20 years. He then urged the court to allow the Appeal.

On the part of the Respondent, Tunde Falola Esq. with him Friday Nwuhuo Esq. and Odemi Omonuwa (Miss.) counsel for the Respondent adopted the Respondent’s Brief and intimated the court of the abandonment of the arguments contained in pages 17 and 18 of their said Brief. A. B. Jimoh Esq. did not object to the said prayer and accordingly the Respondent’s Notice as well as the arguments proffered thereto at pages 17 and 18 of the Respondent’s Brief shall be discountenanced in this Appeal and are accordingly struck out as far as the issue of statute of Limitation 1623 is concerned.

In resolving the issues as formulated by the respective learned counsel, I am minded to state without equivocation that Issues Numbers 1, 2 and 3 as formulated by them are basically the same. However, it would appear that the issues as formulated by the learned counsel for the Appellant are more to the point and all encompassing with the issues formulated by the Respondent’s counsel. I shall therefore determine this appeal on the issues formulated by Appellant’s counsel.

Arguing issue Number I (one) on the question of whether the action of the plaintiff/Appellant was statute barred the Learned Counsel to the Appellant recalled the evidence of the Respondent and his pleading that he purchased the land from one Madam Ode, a member of the plaintiff/Appellant’s family some time in 1978 but that the trial court found out that the right of action arose or accrued in 1985. The court thus invoked the Limitation Law Cap. 89 Laws of Kwara State 1994 and dismissed the Suit.

Learned Counsel for the Appellant further noted that the parties by their pleadings and oral testimonies agreed that the land was held under native Law and custom but that none of them led evidence or proved prescriptive native Law and custom. Still on the issue of Limitation Laws, he submitted that the learned Counsel for the Respondent relied on two repealed laws – the Kwara State Limitation Edict 1987 and the Kwara State Limitation Edict 1991 which statutes could not help the Respondent. Relying on the authorities of GEORGE V. U.B.A. LTD. (1972) ALL NLR (PT.2) 247 at? ONWUCHUKWU V. N.D.I.C. (2002) 2 S.CN.J. 178 at 188, ISHOLA V. UNION BANK PLC (2005) 2 SC (PT.2) 80 at 90 and Order 25 Rule 6 (1) of the Kwara State, (Civil Procedure) Rules 1989, he further submitted that a party relying on a statute of Limitation must not only plead same correctly but prove same to the satisfaction of the court. In this case, the Respondent failed so to do and the Honourable Court applied the law that was not in force when the right of action accrued in 1985. Citing again section 2 of the Limitation Law (Cap. 89) Laws of Kwara State 1994 which provides that the operative or commencement date of the law was the 18th day of October, 1987 he submitted that the learned trial Judge erred in applying the said law retrospectively. The cases of SELE V. THE STATE. (1993) 1 S. C. N. J 15 at 33; MUSTAPHA V. GOVERNOR OF LAGOS STATE (1987) 5 SCNJ 117 at 119; ODUNTAN V. AKIBUH (2000) 7 S.C. 106 at 107 and AKPAN V. UMANA (2002) FWLR (pt.10) at 184 were relied upon to backup the above submission.

Finally on this issue he referred to sections 28 and 29 of the High Court Laws of Northern Nigeria 1963 (as applicable to Kwara State then) which empowered the High Court of justice Kwara State to apply imperial Laws but submitted that on the authorities of MOASLEWA THOMAS V. HOLDER (1946) 12 WACA 78 and LASISI & ANOR. V. TUBI & ORS. (1974) 2 S.C. 71, the Statute of Limitation 1623 did not apply because native Laws and customs are applicable to the case at hand. He then urged us to hold that the Suit is not statute barred.

In his reply Learned Senior Counsel for the Respondent referred us to paragraphs 20 and 35 of the Amended Statement of Defence where the Respondent specifically pleaded the Statute of Limitation 1987 and the Equitable defences of long possession and occupation of the land since 1978 when the said land was allegedly bought from Madam Ode and laches and acquiescence on the part of the plaintiff who filed the action in March 1999 because Madam Ode the family head had died.

Learned Counsel for the Respondent then enumerated the facts which were not disputed by the parties and submitted that the learned trial Judge was right when he held as he did on the application of the Statute of Limitation.

He placed reliance on the case of FRED EGBE V. ALHAJI ABUBAKAR & ORS (1990) 1 NWLR (PT.129) 546 at 582 and page 112 of the Judgment of this court for the above submission.

The Learned Senior Advocate further pointed out that although the learned trial Judge held at page 114 of the Record of proceedings that the cause of action arose in 1983 -1985 and that the applicable law is the statute of Limitation 1994, such a holding is not sufficient to set aside the decision of the Lower Court.

On Issue Number Two (2) which relates to Grounds 2 and 4 as to whether the land in question was not described with certainty, the learned Counsel for the Appellant recalled how the plaintiff/Applicant in his Amended Statement of claim described the land, its extent and the silus. He further referred to the evidence of the Appellant’s witnesses and their description of the said land with slight differences with what the Appellant said so also did the Respondent plead 8 (eight) plots of land which he bought from Madam Ode a member of the family and tendered Exhibit C a Survey plan to that effect.

He noted that the learned trial Judge was not impressed with the description of the land in dispute by the Appellant so also did the Judge say that the plan was not helpful.

Citing the cases of AKINOLA V. OLUWA (1962) 1 ALL WLR 204 at 227. ODUKWE V. OGUNBIYI (1998) 6 S.C.N.J. 102 at 118 and AJAGUWA V. AMUSA (2003) 9 NWLR (PT.291) at 308 he submitted that the plaintiff is bound to describe the land he claims with certainty but that where the plaintiff fails the evidence of the Defendant that support’s the plaintiff’s case should not be ignored by the trial court.

In the same vein he asserted that where the defendant’s survey plan for the portion of land is admitted in the absence of the plaintiff’s plan, the court is expected to tie the declaration to the survey plan. The authority for so submitting is Per Nnaemeka-Agu J.SC. in OKONKWO V. KPAJIE (1992) 2 SCNJ 290 at 313.

The Learned Counsel for the Appellant maintained that Exhibit C having been admitted to be made by a qualified surveyor the dimension of the portion allegedly purchased from Madam Ode is determinable from Exhibit C, contrary to the finding of the Honourable Court. He again depended on the authorities of AWOMUTI V. SALAMI (1978) 3 SCNJ 105 at 110 and OGOLO (2003) 12 S.C. (pt.56) at 85-86 to submit that the Honourable trial Judge did not give adequate consideration to this fact, and to call on this court to exercise its appellate power of evaluating the afore said exhibit or remit the case back for retrial. BELLO ADEDIBU & ANOR. V. MAKANJUOLA 10 WACA 33; NWEKE V. OKERE (1994) 102 at 177? OGBOGU V. OGEGBU (2003) 4 S.C.N.J. 20 at 43-44 were again relied upon to submit that the combination of the parties description of the land in dispute is certainly known to the parties as can be gleaned from paragraph 25, 26, 29 of the Amended Statement of Defence and pages 87 lines 10 and 22 and 17 lines 5 and 8 of the Record of proceedings.

He urged the court to hold that the Respondent having known the portion he bought from Exhibit C which the Appellant did not challenge the portion is certain and the out (sic) right dismissal of the Appellant’s claim would deny him the future right of not only the land in dispute but the vast expanse admittedly owned by the Appellant’s family. He therefore urged this court to lean towards justice and on the authorities of OLUMOLU V. ISLAMIC TRUST (1996) 2 SCNJ 29 at 36, AWOTE & ORS. V. OWODUNI (1987) 5 SCNJ I at 7, EPI V. AIGBEDION (1972) and ONIFADE V. ARCH. OLAYIWOLA (1990) 11 S.C.N.J. 10 at 20 and either strike out the claim or order a retrial for the purpose of the required description of the land.

Reacting to the above submissions the learned Senior Advocate for the Respondent posited that the extent of the land claimed by the plaintiff was not certain nor proven. He pointed out that the defendant/Respondent in paragraph 34 of the Amended Statement of Defence pleaded emphatically that the land being claimed was not certain paragraphs, 3, 4, 5, 7, 10, 12, 14, 15, 17 (a) (b) and (c) of the Amended state of claim was referred to submit that ab. initio the plaintiff failed to show through his pleadings and evidence the certainty of the land he is claiming from the Defendant.

The Learned Senior Advocated then cited the following authorities on the burden placed on the plaintiff who seeks a declaration of title to land and what the court should do where he fails to prove the identity of the land and its boundaries with definitive certainty: –

1. BARUWA V. OGUNSOLA (1938) 4 WACA 159
2. KANKIA V. ALI MAIGEMU & 4 ORS. (2003) 6 NWLR (PT.817) 496 at 524 Per Salami J.C.A.
3. IYAJI V. EYIGEBE (1987) 3 NWLR (PT.61) 523 at 529.
4. ADJEI V. KWADZO 10 WACA 274.

He then submitted that in this case, the certainty of the land in dispute is shrouded in mystery and in doubt and no Licensed Surveyor however ingenious will be able to draw any plan describing the land in dispute based on the terse evidence of the plaintiff and witnesses and accordingly urged this court to affirm the decision of the Lower Court.

ISSUE NUMBER 3 (THREE) AND 4 (FOUR) IN RELATION TO GROUNDS 5 and 6.

Here the Learned Counsel for Appellant reiterated that parties are ad idem that Gurumoh was the original owner or the owner of the vast expanse of land including the portion in dispute. He noted that the appellant testified to this effect and traced the root of title and the pedigree of succession to his seven children who in turn passed the land to the present generation. Learned Counsel for the Appellant further observed that the response by the plaintiff/Appellant under Cross examination that he did not know from whom Garuba Alao Gurumoh got the land was the reason put forward by the Honourable Court in rejecting the traditional evidence of the Appellant.

He argued citing the case of OHIARE V. AKABEZE (1992) 2 S.C.N.J 76 at 87 that where the plaintiff pleads traditional history and the line of decent, he is simply saying that his ancestor was the founder and first person to own the land. Learned Counsel on the claim in trespass and injunction, submitted that without conceding that the traditional history was not established by the plaintiff/Appellant, where the court below found that the Appellant and Madam Ode also bought land from the family and that individuals including the Niger River Basin Authority, Ilorin which facts were unchallenged, the trial court should have considered these acts of ownership and possession which extended over sufficient length of time to warrant the inference that the plaintiff was the true owner of the land in line with the decision in EKPO V. ITA 11 NLR (PT.68) and PAUL V. OZOKPO (1995) 4 SCNJ 119 at 137.

Learned Counsel still on this point, contended that acts of ownership as pleaded and evidenced by the Appellant is one of the recognized ways of proving root of title which is distinct and independent and that failure to prove traditional title does not preclude the court from acting on the evidence on acts of ownership and possession. ASEMO V. ABRAHAM (2001) 6 S.C. 154 at 159 and BALOGUN V. AKANJI (1998) 3 – 4 S.C. 95 at 104 was cited to distinguish the cases cited by the learned trial Judge on the issue in his judgment.

Counsel referred to paragraphs 3, 7, 9, 13 (a) – 1 of the Amended Statement of claim and paragraph 14 -19 of the Amended Statement of Defence which set out acts of ownership and submitted that the Appellant’s evidence centered on these acts of ownership at pages 9, lines 18-22, 96-97.

Based on the foregoing, he submitted that the failure of the Appellant to establish his claim for declaration of titled did not mean that his clam for injunction must fail as the learned trial Judge had held, PAUL V. OZOKPO Supra at 138 and ASEMO V. ABRAHAM Supra 154 at 159 were again relied upon to urge this court to allow the appeal or in the alternative order a retrial.

Learned Counsel for the Appellant re-emphasized the issue of the original settler on the land and the Learned trial Judge’s holding thereon and referring to the definition of “first settler” or ‘founder’ in “The New Webster’s’ Dictionary of English Language (Int. Edition)” and the case of BIARIKO V. EDEH – OGWULE (2001) 4 S.C. (PT, 11) 96 at 115 submitted that such a conclusion would work incalculable injustice against the Appellant who pleaded family property and narrated the genealogical line from the original settler or owner to the present generation. GAJI V. PAYE (2003) 5 S.C. at 67 was again cited on the ways by which family property could be created to submit on the authorities of OLOWOSAGO V. ADEBAYO (1988) 9. S.C. 87 at 97-98, OKERE V. NWANAWO (2003) 4 S.C.N.J. 211 at 224-225 that the appellant pleaded inheritance of the family property and that without relegating the requirements of the law on declaration of title and focusing on the undisputed facts that the land originally belonged to Garuba Alao Gurumoh, the strict application of all the case laws referred to by the learned trial Judge at page 123 of the Records are not tenable to the case at hand. He therefore prayed that this court should discountenance these authorities and grant the appellants appeal.

Learned Counsel for the Appellant then alluded to issues 4 and 5 as formulated in the lower court and the holding by the learned trial Judge that once the traditional evidence fails consideration of the live issues is of no consequence and submitted that parties agreed that the live issue between parties was whether Madam Ode who was said to have transferred the land in question to the Respondent was qualified to transfer the family property as she did.

He maintained that parties agreed that a resolution of that issue would have put the matter to rest one way or the other adding that on the authorities of BALOGUN V. AKANJI (2005) 3 – 5 S.C. Supra at 104 and ARAKA V. EJEAGWU (2000) 12 S.C. (PT. 1) at 134, all live issues properly joined by the parties ought to be clinically examined by the trial court.

He conceded that a defendant who does not counterclaim needs not prove title in a case like this but added that the trial court cannot close its eyes to live issues and beneficial material evidence from the parties on the authority of ORIANWO V. OKENE (2002) FWLR (PT.114) 427 at 446.

Referring to the passing comment by the Honourable Judge at page 126 of the Records that the parcel of land was bought from the family by Madam Ode and juxtaposing same with his Lordship’s earlier conclusion that the land was not certain and that the traditional history was not reliable because the name of Madam Ode’s family was not mentioned he then questioned which land was referred to above, and prayed the Honourable Court to hold that the plaintiff’s traditional evidence was conclusive to warrant a declaration.

On the whole, he urged the court to resolve all the issues in the Appellant’s favour allow the Appeal and grant the declaration sought by the Appellant or in the alternative order a retrial of the suit.

On the part of the Learned Senior Counsel for the Respondent, he adopted his arguments under Issue II and urged the court to hold that based on the oral and documentary evidence adduced by the plaintiff and his witnesses, the trial court was right in dismissing his case.

He submitted that in a declaration of title the plaintiff succeeds on the strength of his case and not on the weakness of the Defendants case, if any. The Learned Senior Advocate reiterated that in the case at hand it is crystal clear that the evidence of the plaintiff and witnesses do not meet the requirements for a party in proof of declaration of title to succeed.

The Learned trial Judge, he maintained was therefore right to have held as he did at page 123 of the Record of proceedings citing the ways and means of proving title to land on the authority of IDUNDUN V. OKUMAGBA (1976) 9-10 S.C. 227.

Learned Senior Counsel again referred to page 125 of the Record on the holding by the Learned trial Judge on the expression of ignorance by the plaintiff/Appellant as to where Garba Alao the father of Aliu Gurumoh got the land in dispute from and relying on the dictum of Onalaja J.C.A in OYEBANJI V. FABIYI (2003) 12 NWLR (PT.834) 271 at 299, pointed that the plaintiff failed woefully to prove his case from the evidence adduced by him and his witnesses coupled with the documentary evidence.

It was submitted further that the appraisal of oral evidence and ascription of probative value thereto are the primary duty of a court of trial and a court of Appeal would only interfere with the performance of that exercise if the trial court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support, or indeed has approached the determination of those facts in a manner which the facts cannot and do not in themselves support. GBADAMOSI & ORS. V. GOVERNOR OF OYO STATE & 8 ORS. (2006) 13 NWLR (PT.997) page 363 was cited to buttress the above submission and to urge us to dismiss the Appellant’s appeal as it is unmeritorious and frivolous.

He also urged us not to accede to the appellant’s prayer for an order of retrial, as there should be an end to re-litigation.

It is pertinent to note that the Learned Senior Advocate on behalf of the Respondent raised a preliminary objection on the incompetence of Grounds 2 and 3 of the Grounds of Appeal.

For Ground 2 the grouse of the Learned Senior Advocate is that the ground avers that.

“The Honourable trial court misdirected itself and erred when it held that: “The evidence of the plaintiff is devoid of graphic description of the being (sic) claimed.” He therefore submitted that the ground of Appeal is inchoate, because it does not allege any misdirection in fact or that the trial court erred in law. In any case, he further submitted, the court below could not have misdirected himself and erred at the same time in law even though the missing link of the misdirection in fact and error in law are supplied. The case of NWADIKE & ORS V. CLETUS IBEKWE & ORS (1987) 11-12 S.C.N.J. 72 was relied upon to further submit that the above ground as couched offends the provisions of Order 3 Rule 2(2) of the Court of Appeal rules, 2002 which provides as follows:

“If the grounds of Appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”

He noted that from the way and manner the ground of Appeal is couched, the respondent is at a loss of what is really the purport of the said ground as it is according to the Learned Senior Counsel bare awaiting the supply of the missing word or words which this court cannot afford to do.

Learned Senior Advocate maintained that the provisions of Order 3 Rule 2(2) is mandatory by the use of the word “shall” and that the Appellant not having complied with the above provisions, the court should strike out the said Ground for being incompetent.

It was his further contention that there is no where that the court below held that:

“The evidence of the plaintiff was devoid of graphic description of being claimed;” and that it has been held in a plethora of cases that the Ground of Appeal must arise from the decision of the court whose judgment is appealed again. He accordingly urged the court to strike out grounds 2 and 3 of the Grounds of Appeal.

In answer to the Preliminary objection the Appellant’s Counsel in the reply Brief dated and filed on the 2ih October, 2006 referred to Ground 2 as contained in the Records of the trial court and served on the Appellant which at page 128 there of states that:

“The Honourable Trial Court misdirected itself and erred when it held that:

“The evidence of the plaintiff is devoid of graphic description of the land being claimed,”

which quotation can be found with slight omission at page 122 of the Record of proceedings where the trial court stated thus: –

“The evidence of the plaintiff and his witnesses is devoid of a clear and graphic description of the land being claimed.”

The Learned Counsel for the Appellant then urged this court to disregard the respondent’s complaint, as it is an unsubstantial technicality of form rather than substance.

As regards the provisions of Order 3 Rule 2 of the Court of Appeal Rules, 2002, he commended the Supreme Court’s decisions in the cases of ADEROUNMU V. OLOWU (2002) 2 S.C.N.J. 180 at 191 and ADELEKE V. ASANI (2002) 4 S.C.N.J. 407 at 418 to us and urged that we refuse the objection. As for Ground 3, the learned Counsel for the appellant pointed out that the Appellant neither raised issues nor argued the said ground in the Appellant’s Brief of Argument and accordingly, the Respondent’s issue NO.3 and the arguments preferred there on cannot be sustained from a ground which has been abandoned. The cases of MODUPE V. THE STATE (1988) 4 NWLR (PT.87) 130 at 138 para G, OLOWOSAGO V. ADEBAJO (1988)4 NWLR (PT.88) 275 at 283 para. D; and OSAFILE V. 0D1 (1994) 2 SCNJ 1 at 9-10 were all relied upon to urge that issues II and III of the Respondent’s Brief substantially dealt with the abandoned ground 3 of the Notice of Appeal and as such this Honourable court should strike out the portions abandoned in respect of Ground 3 of the Appeal.

Ground two it was finally submitted is competent and he so urged the court to so hold. The other aspect of his reply is on the Statute of Limitation, which has been abandoned by the Learned Counsel to the Respondent in the course of the oral adumbrations of the Briefs of Arguments.

However, it must be noted that the learned Counsel for the Appellant referred to the case of ODEKILEKUN V. HASSAN (1997) 12 S.C.N.J. 114 at 137 to submit that prescriptive title is unknown to Customary tenure but cognizable under I and held under statutory Law.

The last point made on reliance on beneficial evidence adduced by the Defendant/Respondent contrary to the submission of t he learned Senior Counsel to the Respondent at page 16 paragraph 6.03 of his Brief was that on the authorities of KODILNYE V. ODU (1935) 2 WACA 336 and MOGAJI V. CADBURY (1985) 2 NWLR (PT. 393) at 438 was that the plaintiff can use the Defendant’s case which support’s the former case to support and establish his provided that the evidence is credible and was accepted by the Judge in the cause of evaluation.

Before resolving the issues as raised by the parties I must first proceed to deal with the preliminary objection raised by the Learned Senior Advocate of Nigeria on behalf of the Respondent with respect to Grounds 2 and 3 of the Appeal as couched by the Appellant. Order 3 Rule 2 (2) of the Court of Appeal Rules 2002 which the learned Senior Counsel relies upon to urge us to strike out Grounds 2 and 3 of the Appeal provides as follows: –

“(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”

Rule 2 (4) in part provides also that “and any ground of Appeal or any part thereof which is not permitted under the rule may be struck out by the court of its own motion or on the application by the Respondent.”

This sub rule also stipulates that no ground shall be permitted of it is vague or general in terms or which discloses no reasonable ground of Appeal except the general ground that the judgment is against the weight of evidence.

Now, Ground 2 as it appears in the Notice of Appeal States thus: –

“The Honourable trial Court misdirected itself and erred when it held that: – “The evidence of the plaintiff is devoid of graphic description of being (sic) claimed.”

There is no doubt that as the Ground appears above, a lacuna has been created which renders the said ground vague and ought to be struck out. However, on a careful perusal of page 128 of the Record of proceedings which contains the Original Grounds of Appeal it would be clearly seen that Ground 2 states that:

“The Honourable trial Court misdirected itself and erred when it held: “The evidence of the plaintiff is devoid of graphic description of the land being claimed.”

The portion of the judgment above quoted is cited in part from page 122 paragraph 2 of the Record of proceedings wherein the Learned Trial Judge held thus:

“The evidence of the plaintiff and his witness is devoid of a clear and graphic description of the land being claimed.”

I therefore agree in toto with the Learned Counsel for the Appellant that this aspect of the complaint of the Learned Senior Advocate is an unsubstantial technicality and an omission which can be rectified by the court particularly as the correct and omitted words can be gleaned from the Original Grounds as found in the Record of proceedings.

The more serious aspect of the objection is the contention by the Learned Senior Advocate on the authority of NWADUKE V. IBEKWE & ORS. Supra that a court can not misdirect itself and at the same time err in law on the same ground of Appeal although the missing links of misdirection and error are supplied.

There is no doubt that in the case of NWADIKE V. IBEKWE (1988) 11-12 S.C.N.J. 72; See also (1987) 4 NWLR 718 at 744 and 745, Nnaemeka Agu J.S.C. had taken the rather strict position in line with the mandatory provisions of Order 3 Rule 2 (2) of the Court of Appeal Rules 2002 that:-

“A ground of appeal cannot be an error in law and misdirection at the same time… By their very nature one ground of appeal cannot be the two. For the word ‘misdirection’ originated from the legal and Constitutional right of every party to a trial by jury to have the case which he has made either in pursuit or in defence fairly submitted to the consideration of the tribunal. (See Bray V. Ford (1895) A-C. 44 at p.49). In our system in which the Judge is Judge and jury a misdirection occurs when the Judge misconceives the issues, whether of facts or of law, or summarizes the evidence inadequately or incorrectly. See CHIDIAK V. LAGUDA (1964) 1 N.M.L.R. 123 at P. 125. He may commit misdirection either by a positive act or non-direction. But when his error relates to his finding it cannot properly be called misdirection; it could be an error in law. This is why the appellants grounds 4, 5, 7 and 8 said to be ‘error in law and misdirection’ are, above every other defects, obvious incongruities.”

With the greatest respect to the Learned Senior Advocate, the above position is no longer the current position of the law. As rightly submitted by the Learned Counsel for the Appellant in his Reply Brief, the Supreme Court had in ADEROUNMU V. OLOWU (2000) 2. S.C.N.J. 180 at 190-191 departed from the dictum of Nnaemeka-Agu J.S.C. as quoted above and rather held that the mere fact that a ground of Appeal is couched as an error of law and misdirection does not make it incompetent as what is important in a ground of Appeal and the test to be applied by the court is whether or not the impugned ground shows clearly what is the grouse of the error in law or the misdirection or as the case may be, error of fact.

It was further held that the gravamen of an incompetent ground is not whether it is framed as an error in law or misdirection but whether by stating it the other side is left in a quandary as to what the complaint of the Appellant actually is. Thus, once there is requisite preciseness and specifity in the ground and compliance with the rules of court in the formulation; the ground cannot be dismissed as incompetent, provided the error and misdirection are stated in distinct and separate particulars.

Applying the test as laid down in ADEROUNMU V. OLOWU Supra, to the circumstance of this case can one say without any hesitation that the Respondent has been misled as contended by the Learned Senior Counsel who has conceded in any case that the Appellants have supplied the missing links in the grounds of Appeal.

In ADELEKE V. ASANI (2002) 4 S.C.N.J. 407 the Supreme Court reiterated the principle above enumerated where their Lordships again intoned that: –

“It is of course not now in dispute supported by a long line of authorities that composite grounds of Appeal which include particulars of errors and/or misdirection may be filed and would not be struck out” page 418.”

In our instant case; the Appellant had furnished particulars of the error and misdirection allegedly committed by the learned trial Judge at page 1 of the notice of Appeal thus: –

“PARTICULARS

“(a). The plaintiff’s evidence was descriptive enough when he stated that the land in dispute is at the back of Niger River Basin Development Authority, Ilorin, Kwara State.

“(b). The oral and documentary evidence placed before the Honourable Trial Court clearly described the land in dispute.”

Thus, the complaint of the Learned Senior Advocate that they were misled cannot hold water with due respect.

On Ground 3, a look at the Issues formulated and the arguments proffered there from would reveal that Issue One relates to Ground one, Issue Two to grounds 2 & 4; issues THREE and FOUR to grounds 5 and 6 whereas Ground 3 was patently abandoned.

It is trite that a ground of Appeal not argued is deemed abandoned and ought to be struck out. See ATOYEBI V. GOVERNOR OYO STATE (1994) 5 S.C.N.J. 62 at 78, ARE V. IPAYE (1986) 3 NWLR 416; MELWANI V. FEED NATION (NO.1) (1986) 5 NWLR 587; SHELL B. P. V. ABADI (1974) 1 ALL N.L.R (PT. 1) 1 at 16 etc.

Since the Appellant has abandoned Ground 3 of the Grounds of Appeal the preliminary objection and all arguments proffered by the Learned Senior Counsel on behalf of the Respondent in that respect are in consequential and otiose. Accordingly I shall discountenance that Ground and strike same off together with the arguments of the Learned Senior Advocate thereto.

The preliminary objection thus raised in respect of the two Grounds of Appeal shall fail as Ground Two of the Grounds of Appeal is competent. The objection is also struck out.

Turning to the main issues on this Appeal; ISSUE NUMBER ONE WHICH RELATES TO GROUND ONE OF THE GROUND OF APPEAL IS WHETHER BY THE NATURE AND TENURE OF THE LAND IN DISPUTE, THE RIGHT OF ACTION CAN BE EXTINGUISHED BY THE APPLICATION OF THE STATUTE OF LIMITATION.

Generally speaking the concept of prescription is unknown to customary law and lands held under custom are not subject to statutes of Limitation. For instance Webber J. in YOUNG DEDE V. AFRICAN ASSOCIATION LTD. (1910) 1 N.L.R 130 at 133 when called upon to pronounce on the applicability of the Real Property Limitation Acts, 1833-34 declared:

“The English Act of Limitation could not apply to Nigeria unless this principle was recognized by native law or there was a specific local enactment inculcating it, and when statutes of general application were made applicable here, it would never have been intended that statutes affecting land in England and relating to their acquisition and extinguishments of title in it were to be so applied in a Colony or in a Protectorate as to affect the land in that Colony or Protectorate.”

Thus a long line of cases decided particularly in colonial times and shortly after independence and the attainment of Republican status in this country followed the dictum of Webber J. (as he then was) in the above-cited case. See the cases of FERGUSON V. DUNCAN (1953) W.A.C.A. 316; ROTIBI V. SAVAGE (1944) 17 N.L.R. 77; ALADE V. BAMGBALA (1962) W.RN.L.R. 67 etc.

This inflexible position of customary law was so prevalent even in Ghana that a plaintiff who had occupied land for sixteen years even with the acquiescence of the real owner in adverse possession of the Defendant could operate to oust his title. Morgan J. of the Gold Coast Full Court in the BOKITSI CONCESSION case (1902) RENNER’S REPORT 239 at page 279 was even more emphatic on this time-honoured custom when he said: –

“The original owner of land who has not been specifically divested of his ownership can after any length of time and under any circumstances obtain recovery of his land from persons setting up adverse title whatever may be the detriment caused to such persons by the fact that the original owner choose to sleep on his right.” See ADU V. KUMA (1937) 3 W.A.C.A. 240.”

Again in the northern parts of this country the provisions of the Limitation Laws i.e. Real Property Limitation Acts 1833 as amended in 1874 – a statute of General Application – could not apply as section 4 of the Land Tenure Law, 1962 vested all land in the Northern states in the Minister responsible for land, and a non-native could claim title to land only through the grant of right of occupancy.

Apart from these exceptions, there was in Nigeria no corresponding law to the English rule of prescription for conferment of title to land. See the Privy Council decision in MORA V. NWALUSI (1962) 1 ALL N.L.R 681 at 687.

However, the courts in modern times have departed from the hitherto strict adherence to this otherwise repugnant native law and custom which encouraged s tale (sic) claims with the attendant unconscionable consequence on innocent purchasers being deprived of land they had enjoyed long possession thereof and sometimes at great expense. Legislations also have also been enacted to ameliorate the harshness of this undoubtedly inequitable and unmitigated rigidity of such moribund custom.

Thus, it is against the foregoing background that we shall consider the submission of counsel on both sides. Learned Counsel for the Appellant has contended that the court applied the Limitation Law of Kwara State (cap. 89) 1994 retrospectively in that the court below held that the cause of action accrued in 1985 as established from the evidence. He then submitted on a long line of authorities that the existing law when the right of action accrued is the applicable law for purposes of limitation of actions.

A careful perusal of the pleadings of the parties and the evidence elicited would lay to rest the controversy as to when the cause of action arose so as determine the law which is applicable for the purpose of limitation of the action of the plaintiff/Appellant.

In paragraph 15 of the Amended Statement of Claim it is pleaded as follows: –

“15. The plaintiff avers that it was sometime in 1998 he noticed that the Defendant was trespassing on his family land and when this act of trespass was brought to the Notice of the (sic) his family the Defendant was called upon to produce his title deed to which he pleaded for time to produce.”

On the other hand the Defendant in paragraph 35 of his Amended Statement of Defence stated thus: –

“35. Defendant says that plaintiff is guilty of laches and acquiescence and that this suit is statute-barred in that the Defendant had been in active possession and occupation of the said land since 1978 or there about and exercising acts of ownership on it to the knowledge of the plaintiff but without challenge from the plaintiff who filed this action only (sic) 29th March, 1999 because Madam Ode the family head had died. Defendant hereby pleads Kwara State Limitation Edict, 1987 to say that the suit is statute barred.”

Before these averments above-reproduced the self same Defendant/Respondent had pleaded in paragraph 20 of the statement of Defence (Amended) that Madam Ode sold parts of her purchased portion to the Defendant in 1978 some twenty-years to the filing of the suit.

From the averments of the parties they set up different periods of accrual of cause of action and the trial court in its wisdom had to resolve the conflicts in dates from the evidence of the parties and their witnesses in this respect.

At page 8 of the Record of proceedings the Learned trial Judge in the resolution of this question rightly in my humble view observed that the plaintiff denied that the Defendant laid the foundation of his church in 1997 and had expended up to N600,000.00 on the land but rather that the said foundation was erected after the institution of the action in 1999 and that the defendant was discovered on the land by one Salihu Akande to when part of the land adjacent to the land was sold but the said Salihu Akande was not called.

However, the court further noted, one of the witnesses called by the plaintiff (Saka Owolabi) the PW.2 admitted under cross examination that the defendant had been farming on the land for up to 16 years and to be precise since the regime of Buhari/Idiagbon. The said witness testified on the 19th of March 2002. His Lordship then held:

“PW.2 is a witness called by the plaintiff. His evidence is against the plaintiff on the issue of when the defendant got to the land in dispute since the plaintiff said the defendant was discovered trespassing on the land in dispute only in 1998. If a witness called by a party gives evidence against that party, the evidence will be regarded as one against interest. See OGIEGBE V. OKWARANTA (1962) ALL NLR 605, ODI V. IYALA (2004) 4 S.C.N.J. 35 at 51 …

There is no better evidence against a party than one from a witness called by him, who gives evidence contrary to the case of the party. This is because the party is calling the witness to testify in favour of his case, as pleaded in his pleadings. In this case, the plaintiff pleaded that the defendant trespassed unto the land only in 1998 but the evidence of Pw. 2 shows that the Defendant has been on the land farming on it as at 2001 when he testified for up to 16 years. It is my duty to give due weight to this evidence. I therefore find that the Defendant has been farming on the land in dispute for up to 16 years as at 2001 which translates to a period of almost 14 years as at 1999, when this suit was filed.”

Having found as above the learned trial Judge then invoked the provisions of section 4, of the Limitation Law of Kwara State, 1994 which prohibits the bringing of any action for the recovery of any land after the expiration of ten years from the date on which the right of action accrued to him, or if the right first accrued to some person through whom he claims, to that person.

He further expounded rightly in my view the underlying principles of law that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought outside the prescribed period for that any action brought outside the statutory period is totally barred as the right to so institute such an action is totally extinguished by law.

It was further held on the authorities of YARE V. NANKU (1995) 5 NWLR (PT.394) 129 at 148 and FRED EGBE V. ALHAJI & ORS, (1990) 1 NWLR (pt.129) 546 at 582 that the effect of a successful plea of the Limitation Law by the Defendant on the plaintiff is that the plaintiff’s claim or right of action will be unenforceable and will be forever denied whatever the merit of his claim.

The Learned trial Judge went on and on to cite some cases as to when the cause of action in this case accrued to the plaintiff and placing reliance on section 5 (1) of the Limitation Law Cap. 89 Laws of Kwara State 1994 which provides that: “where a person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been disposed or discontinued his possession, the right of action shall be deemed to have accrued on the date of dispossession or discontinuance,” held that by simple mathematical calculations based on what the Pw. 2 said as to when the Defendant had been in adverse possession of the land, time started to run from according to the Learned trial Judge, since August 1985 because the administration of Buhari/Idiagbon started from December 1983 to August, 1985. He then held that the suit was commenced 3 years 8 months outside the time stipulated by law.

The suit was held to be statute barred and the plaintiff’s right of action was extinguished forever on the authorities of EGBE V. ADEFARASIN (1987) 1 S.C.N.J. 1 at 17, ODEKILEKUN V. HASSAN (1997) 12 S.C.N.J 114 at 135.

On the defence of laches and acquiescence as pleaded by Defendant in paragraph 35 of his Amended statement of claim, he held that prescription is unknown to land held under customary land tenure and that title cannot be acquired by prescription. Citing the case of ATUNRASE & ORS V. SUNMOLA & ORS (1985) / NWLR (Pt. 1) 165 and SAKA OLOBODE V. SANGODEY (1993) of S. C. N. J. 1 at 13 where the supreme court held that laches, acquiescence and standing by are very alien to Yoruba native law and custom because possession no matter how long cannot be converted to title, he noted that this plea was not pursued by learned Senior Advocate and the Defendant in the cause of trial.

I must confess that the learned trial Judge was brilliantly analytical and treated this vexed issue of limitation and prescriptive title with due diligence and impeccable logic. However, it seems to me that in the application of the Law the learned trial Judge was confused as to which of the limitation laws was applicable. If as he held the cause of action accrued between 1983 and August 1985 and chose 1985, then the appropriate statute of limitation would have been that which was applicable in 1985. This fact was conceded when learned Senior Advocate in his brief at page 12 said that although the learned trial Judge held at page 114 of the Record of proceedings that the cause of action arose between 1983 – 1985 and that the applicable law was the statute of limitation of 1994, the holding of the trial Judge is not sufficient to set aside the decision of the lower court. He then in his wisdom contended that since the cause of action arose in 1985 and the suit was filed in 1999, the suit was instituted 14 years after the cause of action arose.

Accordingly, he submitted that the applicable law is the Statute of Limitation 1623, which was applicable to all the then Northern States as Statute of General Application by virtue of the received English laws which were adopted in Nigeria. By that statute of General Application of 1623 and the authority of RAINS V. BUXTON (1880) 14 Ch. 537 and action for recovery of land must be brought within a period of ten years (10) after the cause of action arose, he further submitted.

Incidentally the learned Counsel for the Respondent in the cause of arguing the appeal abandoned this line of argument thus conceding to the submissions of the learned counsel for the Appellant that neither the English statute of General Application or the Limitation Law 1991 as contained in the laws of Kwara State 1994 was/ is applicable to the case at hand.

For the avoidance of doubt section 2 of Cap. 89 originally captioned as “An Edict to Provide for limitation of Actions in The State Kws 27 of 1991,” stipulated thus: –

“This Edict shall be demand to have come into operation on the 1st of October, 1987″ Having held that the cause of action arose in 1985 the Limitation Law Cap. 89 Laws of Kwara State which came into operation in 1987 could not have been retrospectively applied by the lower court or this court.

I am therefore in complete agreement with the learned counsel for the Appellant and the authorities of SELE V. STATE, MUSTAPHA V. GOVERNOR OF LAGOS STATE (1987) 5 S. C. J. 117 at 119; ODUNTAN V. AKIBU and AKPAN V. USMAN that the 1991 Limitation Law Cap 89 Laws of Kwara State 1994 does not apply to this case so as to extinguish the right of the Plaintiff / Appellant to commence this action.

Rather, as we had said earlier the statute of General application that ought to apply but for section 4 of the Land Tenure Law of the Northern States 1962 would have been the Real Property Limitation Acts of 1833 (as Amended) in 1874. Thus the case of RAINS V. BUXTON would have applied in this case.

On the whole, if the learned trial Judge had conceded that the cause of action arose in 1998 when the Respondent was discovered to have trespassed on the land, then the Limitation Law Cap. 89 would have applied if at all but since he thought otherwise; this Court in its appellate jurisdiction is helpless to reverse his findings on this point.

Accordingly, I hold that as at 1985 when the cause of action purportedly arose as found by the court, there was no Limitation Law, which divested the appellant’s right to commence this suit. The claim is/was not therefore statute-barred as held by the learned trial Judge.

Issue number one (1) is therefore resolved in favour of the plaintiff/Appellant on this score. Ground 1 therefore succeeds.

ISSUE TWO (GROUNDS 2 and 4): WHETHER THE LAND WAS DESCRIBED WITH CERTAINTY BASED ON THE ORAL AND DOCUMENTARY EVIDENCE PLACED BEFORE THE COURT.

In resolving this issue it has to be recalled that the Appellant sought for the following:

(a) ” A declaration that the plaintiff family (Alh. Gambari Gurumoh) is the customary owner of the parcel of land measuring thirty plots situate, lying and being behind Kulende near Niger River Basin Ilorin to the exclusion of the Defendant or any other person(s)”.

(b)” A declaration that the purported sale of parcel(s) of the said land by Madam Odo Alao Gurumoh to the Defendant (if any) is null and avoid and of no effect whatsoever.”

(c) ” A perpetual injunction restraining the Defendant, his agents, servants, privies or any other person(s) whosoever deriving authority from him, from commission of further act(s) of trespass on the plaintiff’s family land”.

It has long been settled that a party seeking a declaration of title must prove to the satisfaction of the court the following essential elements: –

1) The nature of the title in respect of which the declaration is sought.

2) The extent and boundaries of the land with definitive certainty.

3) The title must be established to the satisfaction of the court. See EMEGWARA V. NWAIMO (1953) 14 W. A. C. A. 347, NNEJI & ORS V. NWANKWO (1996) 12 S. C. N. J 388, AKPAN & ORS. V. UMO OTONG (1996) 12 S. C. N. J 213, NNONYE V. AYICHIE (2005) ALL FWLR (Pt. 253) 684 and ADEBAYO V. SHOGO (2005) ALL FWLR (Pt. 253) 739Since this suit on Appeal seeks a declaration that the sale by Madam Ode Alao Gurumoh to the Defendant is null and void it behoves even more necessary on the plaintiff / Appellant to have established the identity of the land with definitive certainty more particularly as an order of injunction cannot be made unless the identity and the boundaries of land to which the order can be tied are clearly defined. See the cases of ABIODUN V. ADEHIN (1962) 1 ALL NIGERIA 550; KARAMA V. ANSELEM (1938) W.A.C.A.150

In order to establish the extent of land claimed survey plans are usually filed to delineate the boundaries of the land which plans must agree with the evidence of the party otherwise there would be uncertainty as to the area of the land claimed.

However, as was held in KWADZO V. ADJEI (1944) 10 W. A. C. A. 274 that although a plan is necessary in a claim for declaration of title, it is not of absolute necessity if surveyor on a perusal of the Record of proceedings could produce a composite plan accurately showing the land to which title has been given. See also ADEMOLA C. J. N in EBILE V. ONNUGBONU S. C 124 / 62 (unreported), GARABA V. AKACHA (1944) NWLR 62 and OKPARA SEKE V. EGBUONU 7 W A. C. A. 53.

Again it must be noted that in order to prove title the onus is on the plaintiff to adduce cogent evidence to positively proof his case. The general rule is as was stated by Webber C. J in the celebrated and oft-quoted case of KODILINYE V. MBANEFO ODU (1935) 2 W.A. C. A. 336 at 337 – 8 inter alia:

“In an action for declaration of title to land the onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title. The plaintiff must rely on the strength of his own case and not on the weakness of the Defendant’s case. If the onus is not discharged, the weakness of the Defendant’s case will not help him and the proper judgment is for the Defendant.”

The above – cited cases and the principles enunciated shall set the pace for the determination or resolution of this issue. As has been seen from the claim of the plaintiff in paragraphs 4 and 17(a) of the amended statement of claim the plaintiff averred that the said parcel of land measures thirty (30) plots.

What then are the oral and documentary evidence in support of this claim of 30 plots of land? The plaintiff testifies on the 16/2/200 that he knew of a parcel of land at the back of Niger River Basin Development Authority, Ilorin and that the land measures 30 (thirty plots). He traced the pedigree of the land to the original owner Garba Alao through Aliu Alao Gurumoh by inheritance to his seven children named Alake, Afirin, Ajobi, Garba Alao, Madam Ode, Memunat and Lawani Alao.

At the demise of Aliu Garba Gurumoh on the 28/12/48, on the 13th January, 1949, members of the family met and appointed Shehu Garba Alao as representative of the family to take charge of the family land.

He related to the court below that all the seven children of Aliu Garba Gurumoh are now deceased but that each of then begat children in their lifetime and as the appointed Manager of the land Shehu Garba Alao did collect Ishakole from those who farmed on the land as customary tenants. At the death of Shehu Garba Alao, the family appointed Lawani as family head over the land but when the family noticed that Lawani was selling out said from the land he was removed on the 26/10/76 as the family representative and Lawani Alao Gurumoh, Madam Ode and Alhaji Omo Sidi became the family representatives for the purpose of selling the land.

According to the Appellant, the land the subject of dispute is part of the family land that the family decided to sell but had not been sold to anybody. He maintained that his family has never sold the said land to the Defendant and infact on the 21st day of September 1993 the family met and decided not to lease the land in dispute for purposes of sharing it among family members.

He continued in his evidence-in-chief that the three representatives Lawani Alao, Alhaji Omo Sidi Alao and Madam Ode as representatives of the family always witnessed all lands sold. The appellant also stated that during the lifetime of Madam Ode, their family land was never partitioned nor shared amongst members. The witness tendered copies of Agreements marked Exhibits A1 – A9, which were so, witnessed by the said Lawani Alao, Alhaji Omo Sidi and Madam Ode in respect of sales of family land.

The plaintiff / Appellant also testified further that their family did not sell part of the land in dispute to Madam Ode during her lifetime in her personal capacity neither did the family lease out part of the land to Madam Ode and that any body who alleges that Madam Ode sold land to him will not be telling the truth.

He related how they came to know of the trespass to the land through one Salihu Akande to whom a portion of the land adjacent to the land in dispute was sold. The said Salihu Akande was said to have arrested the Defendant and taken him to the police station before coming to inform the plaintiffs of the incident.

After the police incident, the plaintiff instructed their solicitor to write to the Defendant to vacate the land or let them know if he had any right on the land but the Defendant did not reply to the letter hence this action. The said letter or notice to vacate the land was tendered but surprisingly rejected by the lower court even when the defendant subsequently admitted that he was served such a notice to vacate the land.

The plaintiff subsequently stated that nobody had ever challenged their ownership of the land in dispute since they settled on the land and that they never authorized any estate agents to sell any part of their family land to Madam Ode during her lifetime neither were they aware of the purported sale of the land by Madam Ode in 1978 for the sum of N 4, 800.00.

He denied that the land belonged to one Iya Alaso who was given same by their Balogun Gambari, reiterating that the land belonged to their Alao Gurumoh family who did not inherit the land from anybody called Iya Alaso as alleged by the Defendant.

He further denied the following averments of the Defendant / Respondent: –

1) That Madam Ode was the eldest and head of the family of Alao Gurumoh but that she was the fifth child.

2) That one Jimoh sold the family land and Madam Ode took him to Alhaji Sidi Gambari who represented the said Jimoh.

3) That Madam Ode later sold family land to members of the family and other interested persons including herself.

4) That the defendant bought the land in 1978 a long with an adjacent land belonging to Yusuf Ipata.

5) That the Defendant started erection of the church on the land in dispute in 1997 without challenge but that defendant started building after the institution of the action.

6) That they were aware of building permits issued to the defendant by the Ilorin South Local Government in November 1997.

7) That the defendant has been exercising acts of ownership thereon like farming, clearing the bush, erecting gutters and pillars.

However, when cross-examined he admitted that Lawani’s wife and his mother, the son of Omo Sidi, himself (the Appellant) and other relations of Lawani’s wife bought part of the land in dispute and all those portions are still intact.

On further cross-examination he stated that Alao Gurumoh inherited the land in dispute from his forefathers and that the name of Alao Gurumoh’s grandfather from whom he inherited the land was Garba Alao, He could however not tell the person who gave the land to Garba Alao as he did not meet the history.

As for his boundary neighbours he mentioned Mogaji Bijoro on the East, Seriku Sango in West and Ibrahim Kolapo (not the Emir) in the North, Asked again about the extent or measurement of the entire land of their family he reply that he did not measure the land nor that being occupied by the defendant.

PW2, Saka Owolabi when called, testified to the effect that the land in dispute is at Kulende adjacent River Basin Area, Ilorin. He had also heard about Aliyu Gurumoh, he knows the land in dispute because he was given land there by Lawani Alao, Alhaja Ode and Alhaji Omo Sidi. A stream separates where he farmed from the land in dispute. The defendant was said to have met him farming there during the regime of Idiagbon. To his knowledge the three persons above mentioned by him had been selling part of the disputed land to individuals and no land had over been sold thereat without his knowledge, He acknowledged that the defendant initially farmed on the land but later built on it and to his knowledge the land was not sold by the three persons earlier on mentioned to the said defendant He had been on the land for the past thirty years, The land in dispute was said to be 30 plots.

Under cross-examination he reiterated that the land in dispute measured 30 plots and that the family measured it in the course of his farming thereat He stated further that if any body said that the land has not been measured such a person would be telling lies as he (Pw. 2) was there when the land was measured. He admitted that Madam Ode was an important member of the family of Gurumoh and one of their signatories.

PW3 Yusuf Amuda Kojumole who also testified identified the land as being in Kulende Area, Ilorin and that the land belonged to his maternal great grand father Alao Gurumoh-Gambari who inherited the land from his father. He confirmed that the said Alao Gurumoh had seven children who inherited the land after his demise. He also confirmed that the land in dispute is about 30 plots and that the plaintiff is his junior brother and that they all are behind him. The land in dispute is the only land they have at Kulende as they have sold the rest including those given to the Niger Basin River Authority who paid them compensation. He identified Exhibits A1 – A 9 as documents covering their sale of family land to certain individuals.

According to him their family did not authorize madam Ode to sell the land in dispute to the defendant; he denied that the land belonged to Iya-Alaso as contended by the defendant. Under cross-examination, he agreed that the plaintiff and himself are related to Gurumoh’s family from the maternal sides but added that both the maternal and paternal sides of Gurumoh family joined hands and gave the plaintiff the permission to institute the action.

On cross-examination he stated: – “I confirm that the land in dispute measures 30 plots. I know because we took measurement of same. I cannot remember when the land was measured. The plaintiff was there when the land was measured”.

He however stated finally that he knew Omo Sidi, Lawani and Lawani’s wife and children but none of them owned personal portion of land in the area in dispute.

On the part of the defendant he had pleaded in paragraph 34 of the amended statement of claim that the defendant says that the land being claimed by the plaintiff in the matter is not certain.

In his evidence in chief he testified that there is only a landmark demarcating the land bought from Madam Ode and Alhaji A. S. Yusuf Ipata in 1978. He subsequently tendered a survey plan dated 8/3/2000 showing the land that was purchased from Madam Ode and the said Alhaji Ipata, which plan, was admitted and marked Exhibit C. the said portion bought from Madam Ode is marked (A) in the plan and measures 9235.959 square metres. Under cross-examination he stated that he wanted the court to believe that the land he bought from Madam Ode was 9235.959 square metres in dimension.

In his findings the learned trial Judge rightfully in my view held at page 119 of the judgment thus: “From the foregoing paragraphs of the plaintiff’s pleadings, it is crystal clear that the entire parcel of the plaintiff’s family land at Kelende Area, Ilorin near Niger River Basin, Ilorin is 30 plots … There is no where in the pleading of the plaintiff where unsold parts which is now being unclaimed is ascertained”.

After reviewing the evidence of the PW1, PW2 and PW3 his Lordship held at page 120 of the judgment thus:

“From the above, I find that there is contradiction in the evidence of PW1 on one hand with that of the PW2 and PW3 on the other hand … I wish to state that the 30 plots is the entire land said to belong to the plaintiff’s family. PW2 and PW3 cannot be right since if the plaintiff by the evidence of the PW1 showed beyond doubt part of the original 30 plots had been sold to several individuals as evidenced by Exhibit “A1-A9″. How then can the land in dispute be the entire 30 plots? But this is their evidence. It is fatal to the issue under resolution”.

The learned trial Judge went on at page 122 after citing relevant authorities to assert that the evidence of the plaintiff and his witnesses is devoid of a clear and graphic description of the land claimed and as such the defendant is on a strong wicket in his contention that the land being claimed is not certain.

However, the gaps created in the evidence of the plaintiff as to the identity of the land has been filled up by the evidence of the Pw. 2 and Pw. 3 who insisted that the extent of the land in dispute part of which was allegedly sold to the defendant measures 30 plots.

The above brilliant and impeccable findings not withstanding, the defendant had tendered Exhibit C the survey plan of the land which radical title was admittedly derived from Garba Alao Gurumoh. He pleaded in paragraph 7 of his amended statement(sic) of that he was introduced by his Estate Agents to one Madam Ode Alao Gurumoh who they said is the owner of a piece of land at Niger River Basin Authority Area, Sango, Kulende, Ilorin measuring about 8 plots.

In paragraph 10 he pleaded that the said land is part of a vast land lying and situate at Sango Area, Kulende, Ilorin measuring several plots.

The plaintiffs on his part also pleaded that Garba Alao settled on a parcel of land situated, lying and being at Kulende Area Ilorin and exercised acts of ownership on the said land before he passed to the great beyond. See paragraph 3 of the amended statement of claim.

In paragraph 4 he stated that the parcel of land measures thirty plots. See also the evidence of the PW1 at page 32 of the Record of proceedings that the land in dispute is at the back of Niger River Basin Authority Ilorin, and that the land is 30 plots. At page 55 the PW1 testified that they have 30 plots of land of their family land unsold but that the defendant was claiming that 8 plots was sold to him,

Even though, the defendant later denied contrary to this pleading that the plots he bought were 8 in number, he tendered his plan of the land he bought from the vast and several plots of land situate at Kulende. The identity of the land should not even have been an issue since if parties had agreed as the learned Senior Advocate had done (before the court decided to set up a different case for the respondent), at page 124 of the proceedings that it is common ground that the entire land part of which is in dispute in the court is the property of Garba Alao Gurumoh the father of Madam Ode and the plaintiff’s own mother and some others.

Thus the identity of the land was not in dispute even through the defendant purported that it was not certain, If the court had held that the land was family land based on the evidence before him and declared the sale void, then a declaration could have been tied to the 30 plots including the one tied to the plan which has been admitted to be part of the larger family land.

In NNANYELUGO C. ODUKWE V. OGUNBIYI (1998) 6 S.C.N.J, 102 at 118 it was held that the age long principle of law that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s does not apply where defendant’s case itself supports that of the plaintiff and contains as in this case evidence which the plaintiff can rely on, In this case the plaintiff can rely on the plan filed by the defendant to prove that the defendant actually bought part of their thirty plots of land.

If this authority above cited does not suffice I shall refer again to OSHO V. APE (1998) 6 S.C.N.J 139 at 154 where the supreme court again held that where the area in dispute is well known to both parties, as indeed it is in this case, the issue of proof of same goes to no issue and the court of Appeal cannot possibly reach a conclusion that the area claimed by the plaintiff Appellant is not certain. See again ALHAJI ILA ALKAMAWA V. ALHAJA HASSAN BELLO & ANOR (1998) 6 S.C.N.J. 127 at 133 -134.

Accordingly, I am of the view that parties being aware of the land in dispute the issue of identity does not arise.

Alternatively, I shall invoke the dictum of Nnaemeka-Agu J.S.C. in OKONKWO V. KPAJIE (1992) 2 S.C.N.J 290 at 313 to hold that even if the land in dispute is not certain (which is not even the case here) this court in its equitable jurisdiction can tie the declaration sought by the plaintiff on the plan of the defendant which has been duly accepted by the court and marked Exhibit C as the dimension of the portion of land allegedly sold to the defendant by Madam Ode has been clearly delineated as “(A)” in the plan.

Accordingly I shall also resolve issue two in favour of the Appellant. Grounds 2 and 4 shall also succeed.

ISSUES 3 (THREE) AND 4 (FOUR) which relate to GROUNDS 5 AND 6: WHETHER THE PLAINTIFF / APPELLANT FAILED TO PROVE HIS CASE BASED ON TRADITIONAL EVIDENCE AND WHETHER THE WEIGHT OF EVIDENCE IS NOT AGAINST THE JUDGMENT: –

Before answering the above questions, it has been settled by judicial authorities that there are five ways of proving ownership of land namely:

1. By traditional evidence as has been done in this case.
2. By production of documents of title duly authenticated.
3. Acts of the person(s) claiming the land such as selling, leasing or renting out part or all of the land or farming on it provided the acts extend over a sufficient length of time and are numerous and positive enough to warrant the inference that the person(s) is/are the real owner(s). See EKPO V. ITA 11 N. L. R. 68.
4. Acts of long possession and enjoyment of the land, which may be prima-facie evidence of ownership of a particular piece of land. See section 46 and 146 of the Evidence Act and the case of DA’COSTA V. IKOMI (1968) 1 ALL N. L. R. 394 at 398.
5. 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. Per Fatayi-Williams (J. S. C) in the locus classicus of D. O. IDUNDUN & 6 ORS V. DANIEL OKUMAGBA & ORS (1976) 9 & 10 S. C. 227 at 246-249

The Supreme Court has held in a long line of cases that a party claiming title to land is not bound to plead and prove more that one root of title in order to succeed. If he can prove one of the above-enumerated five ways it is enough for the court to declare title in his favour. See AKPAN V. UMO OTONG (1996) 12 S. C. N. J. 213.

From the writ of summons and the amended statement of claim it would appear that the Appellant relied on traditional evidence as his root of title when he on behalf of Alao Gurumoh family pleaded in paragraph 2, 3, 5, 6, 7, 8, 9, 10 – 13 how they derived title to the land in dispute by inheritance from the founding father of the land, the persons who exercised original acts of possession and the devolution of title since the founding of the land from one generation to the present.

The evidence of the PW1 and his witnesses have already been reproduced while considering issue number two (2) but suffice it to say that the origin of the land in dispute is of no moment particularly as the learned senior Advocate has been quoted at page 124 of the Record of proceedings as submitting in his address at the lower court that: –

“It is common ground among all the parties that the entire land part of which is in dispute in this court is the property of Garba Alao Gurumoh the father of Madam Odee, the plaintiffs own mother and some others. It is therefore submitted that there is no need to lead evidence on when and how Alao Gurumoh acquired or owned the land”.

With this submission the defendant had admitted that the radical title on the land in dispute is/was on the plaintiff’s predecessors-in-title. By the provisions of section 76 of the Evidence Act no fact need be proved in any civil proceedings which the parties or their agents agree to admit at the hearing. In OKPARAEKE V. EGBUONU & ORS (1941) 7 W. A. C. A. 53, it was held that when both parties have agreed about a particular matter in their pleadings such a matter need not be proved and they should accept such agreed fact as established. Besides, it is open to a party in civil proceedings or his counsel to admit facts at the trial and the court may not allow evidence to be given on such admitted facts. See UDOFIA & ANOR V. UDO AFIA (1940) W. A. C. A. 216.

In the recent case of OBAWOLE & ANOR V. AGANGA WILLIAMS & ANOR (1996) 12 S. C. N. J. 41 the supreme court per Ogundare J. S. C. delivering the lead judgment of the apex court held thus: “Having admitted, both in the pleadings and evidence, defendants’ radical ownership of the land in dispute the onus was on the plaintiffs to prove that the land had been granted or sold to David Hughes” (see pages 430 and 436 of the report).

In this case having admitted that the radical title rested on the plaintiff’s ancestor, the onus was on the defendant to show that Madam Ode who allegedly sold the land in dispute to him had the inalienable right to sell family land, for that was the crux of the matter in the lower court.

The learned trial Judge therefore had no business holding that the learned Senior Advocate or counsel for the respondent (Defendant) in the lower court could not by any stretch of imagination either in law or facts be right to submit as he did that the issue of title was not in dispute. With the greatest respect the finding by the trial court that in law the plaintiff still had the duty to satisfy the court with credible evidence those three conditions set out earlier is perverse and not supported by law or any decision. The basic position of the law is as stated in ADENLE V. OYEGBADE (1967) N. M. L. R. 136 by the Supreme Court is that where land is admitted to have belonged to the plaintiff originally, it is for the Defendant to prove by what right he claims to have become the owner in place of the plaintiff. See also the Supreme Court case of NNANYELUGO C. ODUKWE V. MRS. ETHER N. OGUNBIYI (supra).

Now from the pleadings of the defendant/respondent in paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16-22 he has traced his root of title to Madam Ode, Garba Alao Gurumoh who allegedly sold him the land in 1978.

For purposes of clarity I beg to re-produce some of the averments in the amended statement of Defence.

“3 Defendant admits paragraph 8 of the amended statement of claim.

“4 With regards to paragraph 4 of the amended statement of claim defendant says the land measures several plots and not 30 plots.

“7 When defendant was serving in the said Ministry of Education and he desired to buy a piece of land in Ilorin he contracted professional estate agents and some of them later introduced him to one Madam Odee Alao Gurumoh who they said is the owner of a piece of land at the Niger River Basin Authority Area, Sango, Kulende, measuring about 8 plots.

“8 The said Madam Odee Alao Gurumoh, in company of the said Estate Agents who introduced her to defendant took defendant to a piece of land lying and situate at Niger River Basin Authority Area, Sango, Kulende, Ilorin of which she is the owner and the said agents and other persons confirmed her claim to defendant.

“9 The said Madam Odee Alao Gurumoh thereafter transferred the said land to defendant some time in 1978 in the sum of N 4, 800.00 which he paid her and the said transaction was concluded in the presence of witnesses.

“10 Defendant says that the said land is part of a vast land lying and situate at Sango area, Kulende, Ilorin measuring several plots.

“15 After Garba’s death, 30 years back, it was discovered that a stranger to his family one Alhaji Jimoh was illegally selling the land and Madam Odee took him to the then Emir of Ilorin Alhaji Zulu Gambari who called the stranger to keep off the land, which he did.

“16 It was at this time that Gurumoh family headed by Madam Ode, decided to sell parts of the land to immediate members of the family and other interested buyers and use the proceeds to develop the family house at Guruma Compound, Ilorin.

“17 As a result of this decision, some members of the family including Madam Ode, Omo Sidi, and Lawani bought parts of the land for herself, his wife and son.

“19 Those members of the family who bought parts of the land the proceeds of which were used to develop the family house at Guruma Compound, Gambari Area Ilorin began to resell their portions.

“20. This is why Madam Odee also sold parts of her purchased portion to defendant in 1978, some twenty years to the filing of this suit.

“21 Defendant paid Madam Ode in the presence of competent witnesses”.

He also pleaded that he bought land adjacent to the one in dispute from one A. S. Yusuf Ipata and delineated the two portions in a survey plan.

In paragraph 32 of the amended statement of defence he specifically pleaded that the land he bought from Madam Odee was her bonafide property and not that of the plaintiff or anybody else.

The defendant testified as DW. 1 and called his only witness the daughter of late Madam Odee -Alhaja A. Adijat. In his evidence in chief he stated that one Alhaji Mugabi, Seriki Hausawa of Sango referred him to madam Ode Gurumoh whom he too bought his own land. He the defendant/respondent approached Madam Gurumoh who took him to show the land and he paid N 4, 800.00 to the Madam for the parcel of land.

The witness to the transaction was Alhaji Olarewaju Kamal, Son of Alhaji Kamaldeen the respondent’s principal at G. S. S. Ilorin, in the presence of the Dw 2. He tendered Exhibit C the survey plan of the land.

Under cross-examination he stated: –

1) That his witness to the transaction and when he was being told the history of the land by Madam Ode included Alhaji Olarewaju Kamaldeen, Former Commission for Education and his wife.

2) That he retired from service on 1/3/85.

3) He insisted that the land he bought from Madam Odee is not 8 plots.

4) That Alhaji Olarewaju and his wife were alive.

5) That the dimension of the land he bought was 9235.953 square metres and that he wanted the court to believe Exhibit C.

6) That it is not true that there was no written agreement between Madam Odee and himself and that there was an agreement but it was not made by a lawyer.

7) He admitted being earlier on sued at the upper Area court but the case was withdrawn and that Madam Odee did not show him any document showing that the land belonged to her at the time of buying it.

8) That he merely relied on the evidence of Alhaji Bugabe, the Seriki Hausawa of Sango Area, Ilorin that Madam Odee had plenty land which she was selling but he did not bother to know whether Madam Ode had brothers and sisters living at the time of his purchasing the land from her.

9) He admitted knowing the Madam’s late brother called Lawani and another of the Madam’s brother whose name he could not remember who came along with the plaintiff to stop his (Respondent’s) working on the land.

On further cross-examination he stated that having bought the land over 20 years ago his surrounding neighbours had sold their portions except one Alhaji Yusuf Ayinde Berber Ipata and to that extent it became difficult to know his neighbours. He further believed that her family sold the land he bought from Madam Ode to the said Madam. He admitted that Madam Ode signed as witness to Exhibit A1 – A9 and not as Transferor but that it was Lawani who sold on behalf of the family.

He denied being a trespasser to the land or that the land in dispute was family land.

On the part of the Dw 2 her evidence in sum was that Madam Ode was her mother and that the land bought by the Dw 1 was her mother’s, which she inherited from her father and also bought some from the family. Apart from her mother other family members bought from the said family and that though the plaintiff was not around at that time, he was nevertheless given a parcel of land out of the family land. Lawani also bought his own portion but she would not know what happened to that of OMO SIDI.

According to her, contrary to what plaintiff told the court, her mother had the right to sell the land in dispute to the defendant since she bought same with her money from the family. She added that she witnessed the transaction between the defendant and her mother and that on the day the defendant paid the money, she accompanied her mother to the defendant’s house where payment was made in the presence of Alhaji Kamaldeen sister-in-law.

Under cross-examination she replied that it was not true that the entire family rose up to challenge the defendant on the land sold to him by their mother but the plaintiff engineered the suit. She further stated under cross-examination that the land had been partitioned by members of the family who were present when the portion was also said to her mother.

As regards the agreement of the land sold to the defendant the witness asserted that there was one but after her mother’s death the plaintiff broke into her room and carried away

MISSING PAGE

the by both parties on that imaginary scale, he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weight them together”. See AROMIRE V. AWOYEMI (1972) 1 ALL N. L. R 101, BELLO V. EWEKA (1981) 1 S. C 101 at 118 – 120 per Esho J. S. C.

If the learned trial Judge had harkened to the above wise counsel of these Legal gurus, he would have also spotted very damaging contradictions in the case of the defendant, which would have tilted the balance of justice in favour of the plaintiff.

For example the defendant purported that there was an agreement between him and the late Madam Ode for the purchase of the land in dispute but nothing was tendered to that effect.

On the part of the Dw 2, she also purported that there were agreement and documents in respect of the purchase and the partitioning of the land, which were in the custody of the plaintiff who broke into her mother’s room and carted them away after Madam Ode’s demise. No notice was given to the plaintiff to produce the said documents nor has she told the court why she did not report a case of breaking and entering and stealing this said documents against the plaintiff.

The defendant in paragraph 7 of the amended statement of defence pleaded and gave evidence in court that professional Estate Agents one of whom was Alhaji Mugabi, Seriki Hausawa who introduced him to Madam Ode and witnessed the payment of N 4, 800.00 for the vast expanse of land he bought from the said Madam but if the said Seriki could not be reached at best, Alhaji Kamaldeen and his wife who were signatories to the said Agreement should have been called but he failed so to do.

In paragraph 7 of the amended statement of defence the plot he allegedly bought were eight in number but under examination he purported that:

“I do not know the land being claimed against me. I do not know about 8 plots the plaintiff is claiming against me. The land I know is the one I bought from Madam Ode Gurumoh. My own land is not 8 plots”.

Under cross-examination, he stated: “I insist that the land I bought from Madam Ode is not 8 plots.” Yet he tendered a survey plan of the land, which he admitted now, contains several plots and which he urged the court to believe is the land he bought from Madam Ode. These contradictions did not weigh heavily in the mind of the learned trial Judge to discountenance the evidence of the defendant as a complete fabrication.

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Other Citations: (2007)LCN/2477(CA)