Chief James Adebayo Oyewusi & Ors V. Oba Sunday Olagbami & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The appellants herein, as plaintiffs at the High Court of Oyo State, sitting at Ibadan, by their Further and Better Amended Statement of Claim filed on 14/4/2005 sought the following reliefs against the respondents, as defendants:

1. A Declaration that the purported transfer or grant of the land in dispute situate, lying and being at Ogbomoso farm settlement by the Oyo State Government to the 3rd defendant is illegal, unconstitutional, unlawful, irregular, and null and void.
2. A Declaration that the 1st and 2nd defendants are not entitled to transfer to the 3rd defendant the land acquired from the 1st plaintiff’s family by Oyo State Government for the purpose of Ogbomoso Farm Settlement.
3. N50 million damages for trespass committed and still being committed by the 3rd defendant on the land in dispute.
4. A Declaration that the 1st plaintiff is the family entitled to any reversion interest, release, transfer and or grant of the land in dispute made by the 1st and 2nd defendants.
5. An Injunction restraining the defendants by

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themselves, their agents, servants and or privies or otherwise howsoever from interfering or further interfering with the plaintiff’s possession and enjoyment of the land and from further trespassing on the land.

The 1st and 2nd defendants (now 2nd and 3rd respondents) filed their statement of defence on 23/10/2002, while the 3rd defendant (now 1st respondent) filed what he called “Third Defendant Consequential Statement of Defence to the further and better amended Statement of Claim” dated 4th of May,2004 and [filed] on 6th June 2004. The parties testified and called witnesses in support of their respective positions. They also relied on documentary evidence.

The facts that gave rise to this appeal are as follows:

The 1st appellant, who sued for himself and on behalf of the Ikolaba Ayoola Chieftaincy Family claimed to be the original owner of the land in dispute known as Ogbomoso Farm Settlement. The 2nd – 9th appellants are allottees of land in the Farm Settlement. The 1st respondent is the traditional ruler, the Onpetu of Ijeru in Ogbomoso South Local Government Area of Oyo State. The case of the appellants, is that the Ikolaba Ayoola Family became

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seised of the land in dispute vide a grant by Soun Kumoye, the Soun of Ogbomoso, to their ancestor, Ikolaba Olufimo and that upon his demise, the land devolved on his children and grandchildren who successively exercised acts of ownership thereon, including farming and the grant of customary tenancies. The 1st appellant’s family was allegedly approached sometime in 1948 by the Premier of the then Western Region and the Baale of Ogbomoso for the release of the land for the establishment of a farm school. It was the 1st appellant’s contention that the land was released on the basis of a “negotiated acquisition,” as no compensation was paid to the family. Upon the acquisition, the farm school was established.

The Government of the Western Region subsequently acquired another portion of the land from the family, which acquisition was published in the Western Region of Nigeria Gazette No.3 Vol. 9 (Exhibit 33). For this second acquisition the 1st appellant’s family was paid 460, with which the 1st appellant built his house. According to the appellants the later acquisition was merged with the

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former and collectively known as Ogbomoso Farm Settlement. However, locally the two acquisitions retained their original descriptions as Old Farm School and Ogbomoso Farm Settlement respectively.

The appellants further contend that the area covered by the Old Farm School as published in Exhibit 33, which was about 4,422 acres, was enlarged by the Government vide another acquisition contained in Notice No.876 of 12th July, 1962 published in Gazette No. 50 (Exhibit 33A) to cover approximately 6,116 acres. Portions of the enlarged parcel of land were granted to farmers for farming purposes only on leasehold basis.

It was contended that after the demise of his predecessor in title and after he had been installed as the traditional ruler of ljeru, the 1st respondent wrote to the government of western Region seeking the release of the old Farm school land. According to the appellants, the 1st respondent had trespassed on the land even before he wrote to request for its release by selling portions to third parties and even burying his wife thereon. Notwithstanding protests from the 1st appellant’s family and the farm settlement officer against the acts of

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trespass, 55% of the land was released to the 1st respondent, while the government retained 45%.

It was the appellants’ contention that the release of the land to the 1st respondent did not take into account the interest of farmers who had been granted portions of the land by the government upon the payment of prescribed fees as ground rent. The appellants alleged that in a bid to sell off the land, the 1st respondent destroyed the farmers’ crops. It was on this basis that they approached the Court for the reliefs set out earlier in this judgment. It is the 1st appellant’s contention that where the purpose for the acquisition is abandoned wholly or partially, and release of the land occurs, it is his family that is entitled to the reversionary interest in the land.

The 1st respondent, on the other hand, contended that the Old Farm School land belongs to his family and that it shares a boundary with the Farm Settlement. It is his contention that the Farm Settlement land was acquired from his family by the government of the Old Western Region and that they were paid compensation through the family solicitor to the tune of 12,232. That there was no

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compensation paid to the 1st appellant’s family or the Soun of Ogbomoso, who allegedly granted the land to their ancestor. He contended that the land in dispute is the land known as Old Farm School. That when he ascended the throne as Onpetu of Ijeru in 1999, his family members complained about the activities of the farm settlers on the land. All efforts to settle the matter through the office of the farm manager failed, and this prompted him to write to the Commissioner for Agriculture to intervene. As a result of a tripartite meeting held between the farm settlers/plaintiffs, the 1st respondent and the Secretary to the State Government, it was agreed that the boundaries of the Farm Settlement should be-traced by the government surveyors.

According to the 1st respondent, at a subsequent meeting held between the Deputy Governor, representing the Government, the Ministry of Agriculture and the two parties, it was concluded that the old farm school was never acquired by the State government. It was contended that if the government had acquired the old farm school it would have paid compensation to the 1st appellant’s family.

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He maintained that the Soun of Ogbomoso, who allegedly granted the land in dispute to the 1st appellant’s ancestor could not have done so, as he did not own land in that area.

It was the contention of the 2nd and 3rd respondents that the area known as the old farm school was never acquired by the government nor was it allocated to the 2nd – 9th appellants as settlers. They further contended that the land in dispute was leased to them by the respondent’s family for a period of 10 years in 1961 and that the land was released to the family when the lease lapsed due to effluxion of time. They pleaded that they had erroneously believed that the old farm school land belonged to them, having regard to its proximity to the farm settlement, which they acquired. Upon realising that the land belonged to the 1st respondent, they met with him and requested to be allowed to remain in occupation of the portion of the land on which they had erected structures being used for public purposes. According to them, it was as a result of a resolution between them that 55% of the land was released to the 1st respondent while they were allowed to remain in occupation of 45% on which their structures were built.

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The learned trial Judge visited the locus in quo at the close of the case for the defence. After considering the addresses of counsel, the learned trial Judge, on 7th March 2007, entered judgment in favour of the plaintiffs and granted all their reliefs. The N50 million claimed as damages for trespass, was however reduced to N500,000.00. The 1st respondent was dissatisfied with the decision and filed an appeal at the Ibadan Division of the Court of Appeal. His appeal was allowed on 1st February, 2013. The judgment of the trial Court was set aside. Not surprisingly, the appellants are aggrieved at this turn of events and have further appealed to this Court vide their notice of appeal filed on 19/4/13 containing 13 grounds of appeal.

At the hearing of the appeal on 9/4/2018, Yusuf Ali, SAN adopted and relied on the appellants’ brief and the appellants’ reply to 1st respondent’s brief which were both deemed filed on 22/11/2016 and the appellants’ reply to the 2nd and 3rd respondents’ brief, which was deemed filed on 9/4/18 in urging the Court to allow the appeal. OLUGBENGA OGUNNIRAN, ESQ. adopted and relied on

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the 1st respondent’s brief deemed filed on 22/11/2016 in urging the Court to dismiss the appeal, while OLUSEUN ABIMBOLA, Hon. Attorney General of Oyo State, adopted and relied on the Amended 2nd and 3rd respondents’ brief deemed filed on 9/4/18 in also urging the Court to dismiss the appeal.

Three issues have been identified by the appellants for the resolution of this appeal as follows:

1. Whether considering the avalanche of evidence both oral and documentary led by the parties before the trial Court, the Court below was not wrong in allowing the 1st respondent’s appeal and setting aside the judgment of the trial Court. (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 12, 13 & 14)
2. Whether the lower Court was not wrong when it held that the 2nd -9th appellants pleaded that the land in dispute belongs to the 1st respondent’s family and that the case put up by the 1st appellant was inconsistent with the case of the 2nd -9th appellants. (Grounds 9 & 11)
3. Whether the lower Court was not wrong when it set aside the award of damages and order of injunction made by the trial Court against the respondents. (Ground 10)

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Each set of respondents adopted the appellants’ issues for the determination of the appeal. I shall also adopt them.

Issue 1

Whether, considering the avalanche of evidence, both oral and documentary, led by the parties before the trial Court, the Court below was not wrong in allowing the 1st respondent’s appeal and setting aside the judgment of the trial Court.

In support of this issue, learned counsel for the appellant contended that, as held by the learned trial Judge, the land in dispute is the old farm school, which is verged red on Exhibit 18 and forms part of the entire expanse of land known as farm settlement shown in Exhibit 4. That this is the first parcel of land acquired by the government of the former Western Region for the purpose of establishing a farm school before its size was expanded by subsequent acquisitions. He submitted that the bone of contention therefore, is who, as between the 1st appellant and the 1st respondent, established a better title thereto.

He submitted that the 1st appellant gave cogent evidence through PW1, PW5 and PW9 as to how the land was granted to his family’s ancestor, Ikolaba Olutimo by

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the Soun of Ogbomoso and how it devolved on his descendants. He referred to the evidence of PW2, PW3 and PW4, their boundary men, which supported the 1st appellant’s claim. He also referred to the evidence of PW9, which corroborated the evidence of PW1 as to how the land was acquired by negotiation in 1948 by the government of Western Region. He submitted that although the 1st respondent pleaded that his family owned the land by way of settlement, he failed to adduce any evidence in support of this assertion. He noted that when the Court visited the locus, it found that the land was indeed acquired by the government, in view of the government structures found thereon such as houses, fish pond and hatchery.

He argued that in the circumstances, the 1st respondent’s claim to ownership by settlement must fail. He referred to Ezeokonkwo Vs Okeke (2002) FWLR (Pt.109) 1652. He submitted that the Court below relied on the fact that the 1st respondent’s family was paid compensation in respect of the farm settlement, which is adjacent to the old farm school, in holding that there was a presumption that the family also owned the old farm school.

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Relying on the cases of Adomba Vs Odiese (1990) 1 NWLR (Pt.125) 165 and Dagaci of Dere Vs Dagaci of Ebwa (2006) 7 NWLR (Pt.979) 382, he submitted that ownership of adjacent land to prove title is a mere presumption, which is rebuttable by superior evidence, such as traditional evidence, acts of ownership and acts of long possession of the land in dispute. He submitted that reliance on possession of connected or adjacent land to prove title is only applicable where the circumstances of the case are such as would render it probable that the owner of such connected or adjacent land would also be the owner of the land in dispute.

He submitted that the Court below set up a different case for the 1st respondent, as he did not rely on the principle in his pleadings. He referred to: Lemonu vs Alli-Balogun (1975)3 SC 169. He submitted that the finding of learned trial Judge at page 253 of the record that the 1st respondent failed to adduce evidence in proof of his root of title while the 1st appellant gave credible evidence as to how his family gave the land in dispute to the government for the establishment of a farm school, was not challenged

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at the Court below, and therefore remains valid and subsisting. He submitted that an appellate Court would only interfere with such findings where it is shown that the evaluation of evidence is perverse, or there is a misapprehension of the facts, which does not apply in this case.

On the finding of the Court below that the 1st appellant failed to tender evidence of the alleged acquisition in 1948, he referred to the oral evidence of the 1st appellant, who testified as PW1 and the evidence of PW9 on how the family was approached by the Premier of Western Region and the then Baale of Ogbomoso to release the land in dispute for the establishment of the farm school. He submitted that the lower Court was wrong to disregard the oral evidence of the acquisition, as given by PW1 and PW9.

Relying on Section 125 of the Evidence Act, 2011 and the case of Ogu Vs M.I. & MCS Ltd. (2011) 8 NWLR (Pt.1249) 435, he submitted that proof of a fact may be by oral evidence and need not be by documentary evidence alone. He submitted that apart from the oral testimony, the 1st appellant also relied on Exhibits 3232m and 3434k,

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series of letters, correspondence, memoranda and minutes of meetings of government agencies relating to the acquisition of the land and the establishment of the farm school. He referred particularly to Exhibits 32A, 32B and 34A respectively and Exhibit 36, a lease agreement dated 9th May 1951 between the Baale of Ogbomoso and government of Western Region, tendered by the 2nd and 3rd respondents. He also referred to the evidence of DW4, DW5 and DW6 who confirmed the existence of government structures on the land in dispute. He contended that Exhibit 36 is against the 1st respondent’s interest and supports the 1st appellant’s case.

Learned counsel challenged the finding of the Court below to the effect that the learned trial Judge failed to consider the effect of the compensation paid to the 1st respondent’s family in determining the ownership of the land. He submitted that the issue was duly considered by His Lordship at page 242 of the record. He submitted that even if the issue was not considered, no miscarriage of justice was occasioned thereby, as the payment of compensation was in respect of the farm settlement and not the old farm school.

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On the lower Court’s finding that there was no evidence of the payment of compensation for the second acquisition of 1960, he referred to the oral evidence of PW1 to the effect that the family was paid 460 and submitted that the failure to tender documentary evidence in this regard is not fatal to the 1st appellant’s case, as the evidence was not challenged. He submitted that the learned trial Judge, who had the unique opportunity of seeing and hearing the witness testify, was entitled to rely on his evidence, if found to be cogent and convincing. He submitted that in any event, the compensation was in respect of the farm settlement, which is not in dispute.

Another contention of learned counsel is that the lower Court was wrong when it held that having based his pleading on acquisition by the government and not on a lease, the 1st appellant was not entitled to rely on Exhibit 36 tendered by the 2nd and 3rd respondents. He submitted that the 2nd and 3rd respondents pleaded and tendered Exhibit 36 to prove that the land was not acquired by the government, as claimed by the 1st appellant, but leased to them for a term of 10 years by the

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1st respondent’s predecessor in office. He noted that Exhibit 36 turned out to be an agreement for a lease of the land in dispute between the Baale of Ogbomoso and the Governor and Commander in Chief of the Colony and Protectorate of Nigeria. He noted that the learned trial Judge rightly held that there was no evidence to show that the Baale of Ogbomoso referred to in Exhibit 36 is the same as Oripetu of Ijeru. He submitted that even though tendered by the 2nd and 3rd respondents, the 1st appellant was entitled to rely on it since it supported his case. He referred to: Tatama Vs Jolomi (2003) FWLR (Pt.181) 1682; Elendu Vs Ekwoaba (1995) 3 NWLR (Pt.380) 704.

He contended that Exhibit 36 confirms that the land in dispute was acquired from the 1st appellant’s family through the then Baale of Ogbomoso. He referred to the evidence of PW9, the Baale’s successor in office, which corroborated the evidence of PW1 on the issue of acquisition. While conceding that it was not specifically pleaded that the acquisition was by way of lease, he submitted that the evidence was clear that the land was acquired. He argued that the logical inference to be drawn

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from this fact is that the lease, Exhibit 36, was made by the then Baale of Ogbomoso on behalf of the 1st appellant’s family, after the 1st appellant was approached by the premier of Western Region and the Baale.

He submitted that in the absence of evidence from the 1st respondent showing that the land was acquired from his family or leased by them, his claim of ownership by way of settlement could not stand. With regard to the view of the lower Court that Exhibit 36 could not be relied upon in proof of the 1948 acquisition since it was executed in 1951, he referred to the commencement date stated therein, which is 1st August 1948 and which tallies with the pleadings and evidence of the appellants.

With regard to the lower Court’s finding that Exhibit 36 is unreliable because it refers to the payment of consideration of one shilling for the land whereas the 1st appellant stated that no compensation at all was paid, he referred to Exhibits 32A and 34A, letters written by the Acting Resident, Oyo Province addressed to the Provincial Agricultural Officer proposing outright acquisition of the land or a 99 year lease and referring to the proposal of the

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Ogbomoso District Council to give the land free of charge or compensation. He argued that the irresistible inference in this case is in favour of the 1st appellant being the owner of the land in dispute. He argued that the fact that the name of the 1st appellant’s family is not stated in Exhibit 36 is not fatal to the appellants’ case.

In response to the above submissions, learned counsel for the 1st respondent reiterated the five ways of establishing title to land, as enunciated in Idundun vs Okumagba (1976) 9 -10 SC 227. He referred to the pleadings of the parties and submitted that where evidence, oral or documentary, is at variance with a party’s pleading, it goes to no issue and cannot be relied upon by the Court to find in favour of that party. He referred to: Adeleke Vs Iyanda (2001) 13 NWLR (Pt.729) 1; Ademeso Vs Okoro (2005) 14 NWLR (Pt.945) 308. He submitted that the 1st appellant did not adduce any evidence in proof of payment of compensation to his family in respect of either the acquisition of the old farm school or the extended acquisition of the farm settlement. He referred to Exhibits 30, 30A and 32N tendered in support of the 1st

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appellant’s case. He submitted that Exhibits 30 and 30A are letters written by the 2nd9th appellants’ solicitor to the Governor of Oyo State complaining about encroachment on the land occupied by them and that therein it is stated that the land originally belonged to Onpetu of Ijeru Chieftaincy Family of Ogbomoso and that the said family relinquished their rights and interest in the land when they were paid compensation for its acquisition by the government.

He noted that Exhibit 32N was tendered through PW9, the 1st appellant’s witness to prove that the 1st respondent’s request upon becoming the Onpetu of Ijeru for compensation in respect of the farm settlement was rejected by the government on the ground that the family had already been paid the sum of 12,232 in 1962 through his predecessor in title in settlement of all rights and interest in the acquired land. He submitted that Exhibit 32N is against the 1st appellant’s interest and constitutes proof that compensation was paid to the 1st respondent’s family, as the owners of the land in dispute.

He submitted that where, as in, this case, the 1st appellant

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and 1st respondent are both claiming ownership of the farm settlement land, which is adjacent to the land in dispute, and having regard to Exhibits 30, 30A, 32N and 35, which show that compensation was paid to the 1st respondent’s family, the lower Court was in order when it set aside the judgment of the trial Court which failed to consider the effect of the compensation paid to the 1st respondent’s family. He noted that the 1st respondent did not file a counter claim and therefore his only duty was to defend the action. He had no burden to prove his title. He submitted that the claim of the 1st appellant is at variance with the claim of the 2nd -9th appellants and the trial Court failed in its duty to properly evaluate the evidence.

He submitted that the 1st appellant’s case was. that the farm settlement was an expansion of the acquisition of the old farm school and that having failed to prove ownership of the farm settlement and payment of compensation in respect thereof, it was too late in the day for him to contend that they are distinct properties with distinct boundaries.

On proof of the acquisition, he submitted that there is no

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mention of the name of the 1st appellant or his family in Exhibits 32-32N tendered through PW9, the Soun of Ogbomoso. He observed that Exhibit 32N, which is headed “Acquisition of land at Ogbomoso for Farm Settlement in favour of compensation”, is addressed to the 1st respondent’s predecessor in title. He noted further that Exhibit 34A referred to in paragraph 7.69 of the appellant’s brief, talks about discussions had with the Ogbomosho District Council and not the Soun of Ogbomoso or the 1st appellant’s family. He submitted that oral evidence of acquisition cannot take the place of documentary evidence. He referred to: Fagbenro Vs Arobadi (2006) ALL FWLR (Pt.310) 1575 @ 1598 C – D; Olanlege Vs Afro Continental (1996) 7 SCNJ 145 @ 156.

Learned counsel submitted that the 1st appellant failed to prove his assertion of negotiated acquisition. He submitted that where land is acquired by any government, the proper procedure is that the acquisition is effected by Notice of Acquisition in writing, which would spell out the boundaries and other identifying features of the land acquired and the nature of the acquisition. He referred to

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Section 4 of the Statute of Frauds 1677 and the following cases: Provost, Lagos State College of Education vs. Edun (2004) ALL FWLR (Pt.201) 1628; LSDPC vs. Banire (1992) 5 NWLR (Pt.234) 620; Chief Commissioner, Eastern Provinces vs. Ononye (1944) 17 NLR 142.

He submitted further that parties are bound by their pleadings and that having relied on negotiated acquisition, the 1st appellant cannot turn around and rely on documents that do not directly relate to him, thereby compelling the Court to pick and choose between the evidence. He referred to the case of Kyari vs Alkali (2001) 11 NWLR (Pt.724) 412. He submitted further that Exhibits 32 – 32M and 34 -34K relied upon by the trial Court to find for the appellants, is at variance with their pleadings and the lower Court was right to reject them. He referred to: Emegokwue vs Okadigbo (1973) 4 SC (Reprint) 78; Pan Bisbilder (Nig.) Ltd. Vs First Bank of Nig. Ltd., (2000) 1 SC 71;(2000) 1 NWLR (Pt.642) 684; Ademeso vs. Okoro (2005) All FWLR (Pt. 277) 844 @ 852 H-A & B.

He submitted that the appellants’ contention that the oral evidence of negotiated acquisition was not challenged is

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not tenable having regard to the state of their pleadings and the evidence adduced, which are inconsistent. He noted that Exhibit 32N relied upon by the 1st appellant was also tendered and relied upon by the 1st respondent as Exhibit 35.

On the issue of compensation, he submitted that the 1st appellant did not file any reply to challenge the 1st respondent’s pleading in paragraph 5 of his third consequential statement of defence to the effect that it was from 1st respondent’s family that the farm settlement land was acquired and to whom compensation was paid. He reiterated the fact that Exhibit 32N, which remains the only documentary evidence of payment of compensation in respect of the farm settlement, tendered by the 1st plaintiff through PW9, completely contradicted his assertion.

With regard to Exhibit 36, he conceded that as plaintiffs at the trial Court, the appellants were entitled to take the benefit of the document, if it supports their case. He submitted that such evidence must, however, be within the ambit of his pleadings. He submitted that Exhibit 36 is not the document pleaded in paragraph 11 of the 2nd and

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3rd respondents’ statement of defence, as what is pleaded is a lease agreement entered into in 1961 while Exhibit 36 was executed in 1951.

He submitted that in the absence of any amendment to the said pleading, Exhibit 36 is outside the 2nd and 3rd respondents’ pleading and the appellants could not rely on it. In paragraph 6.44 (a) to (i) of his brief, he enumerated several reasons why Exhibit 36 is of no evidential value to the appellants. In particular, he contended that nowhere in the 1st appellant’s pleading is it averred that his family granted a lease to the government of the old Western Region. He urged us to hold that the document is of no evidential value.

Learned counsel for the 2nd and 3rd respondents adopted the submissions of learned counsel for the 1st respondent to the effect that the appellants’ evidence is at variance with their pleadings and cannot be relied upon to sustain their claims.

In his reply brief, learned counsel for the appellants noted that Exhibit 32N was tendered through PW5, purpose for which Exhibit 32N was tendered was to show that compensation was paid to the 1st respondent’s family in respect of a parcel of land adjacent to the land in

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dispute and not in respect of the land in dispute itself. He submitted that where a document is tendered for a particular purpose, it cannot be used to prove any other fact not in issue on the pleadings. He referred to: Omega Bank Vs OBC Ltd. (2005) 8 NWLR (Pt.928) 547 @ 585. He submitted that Exhibit 32N cannot amount to evidence of ownership of the old farm school, as held by the lower Court.

He submitted that evidence of payment of compensation is not one of the legally recognised methods for proving title to land and that what is in issue is who is the original owner of the land. He submitted that the learned trial Judge, having held that the 1st appellant had proved ownership of the land in dispute, the issue of who collected compensation would not disentitle him to the reliefs sought. On the invitation to the Court to discountenance Exhibit 36 on the ground that the pleading refers to a lease granted in 1961 and not 1951, as contained in the document, learned counsel submitted that a party need not plead a document specifically, so long as the facts relating to the document are pleaded. He relied on:

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Matori Vs Bauchi (2004) FWLR (Pt.197) 1010 @ 1055.

He submitted that in law, the admissibility of a document is usually determined by relevance, and submitted that the 2nd and 3rd respondents did not plead any document in paragraph 11 of their statement of defence but pleaded that the land was leased to them for a period of 10 years by the 1st respondent. He argued that when the document was tendered, it was admitted in evidence without objection. He submitted that not being a document that is legally inadmissible, the Court is entitled to rely on it. In reaction to the submission that the lessee in Exhibit 36 is not the Western Region government, as pleaded by the appellants, he submitted that the lessee is the Western Region’s predecessor in office.

On the whole, he urged the Court to resolve this issue in the appellants’ favour.

In resolving this issue, it is necessary to bear certain principles in mind. The appellants’ claim before the trial Court was for declaration of title and other injunctive reliefs. The position of the law is that where a party seeks declaratory reliefs, he must succeed on the strength of his

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own case, and not the weakness of the defence, if any. See: Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (Pt.1119) 361; Bello Vs Eweka (1981) 1 SC (Reprint) 63; Emenike vs. P.D.P. (2012) 12 NWLR (Pt.1315) 556; Ilori vs Ishola (2018) LPELR-44063 (SC). A declaratory relief must be proved to the satisfaction of the Court notwithstanding default of defence or any admission in the defendant’s pleading. See: Okoye & Ors vs. Nwankwo (2014) 15 NWLR (Pt.1429) 93; Eguamwense Vs Amaghizemwen (1993) 9 NWLR (Pt.315) 1 @ 30.

Furthermore, where the defendant does not file a counter claim, the burden is heavier on the claimant to prove his title to the land in dispute. The defendant has no duty to prove his own title to the disputed land. See: Onovo Vs Mba & Ors. (2014) 14 NWLR (Pt.1427) 391; (2014) LPELR-23035 (SC) 73 B-D; Elias Vs Disu (1962) ALL NLR (Pt.1) 214 @ 220; Kodilinye Vs Odu 2 WACA 336 @337 338;.Idundun vs Okumagba (supra).

Another important principle of law is that both the parties and the Court are bound by the pleadings filed in a particular suit. The parties cannot go outside their pleadings to introduce evidence nor can the Court go

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outside the pleadings to decide the issues in controversy in the matter. It is equally trite that evidence given on facts not pleaded goes to no issue. See: American Cyanamid Co. vs Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (Pt.171) 15; Obmiami Brick & Stone (Nig.) Ltd. vs A.C.B. Ltd. (1992) 3 NWLR (Pt.229) 260; Adejumo vs. Ayantegbe (1989) 3 NWLR (Pt.108) 417; Onwuka Vs Omogui (1992) 3 NWLR (Pt.230) 393.

In a claim for declaration of title to land, the claimant may prove his case in any of the following ways:

1. By traditional evidence;
2. By production of documents of title duly authenticated and executed.
3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.

See: Idundun vs Okumagba (supra); Nkado vs Obiano (1997) 5 SCNJ 33 @ 47; Owhonda Vs Ekpechi (2003) 9 11 SCNJ 1 @ 6.

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In the instant case, the appellants, who were the claimants, and particularly the 1st appellant, relied on evidence of traditional history and documentary evidence to prove their case. The 1st respondent also relied on evidence of traditional history and documentary evidence to resist the claim while the 2nd and 3rd respondents also relied on documentary evidence in their defence. The learned trial Judge at pages 250 -251 of the record made a crucial finding to the effect that the parties are ad idem that the land in dispute is the old farm school, as shown in Exhibit 4 which is also the portion of land verged red in Exhibit 18. That the remaining part of Exhibit 18 constitutes what is known as Farm Settlement, which is not in dispute. There is no appeal against this finding. It is therefore binding on both parties.

Now, it is also necessary to put the appellants’ case in perspective. The genesis of the suit at the trial Court was the release of the land in dispute to the family of the 1st respondent by the 1st and 2nd respondents on the basis that 1st respondent’s family was entitled to the reversionary interest in the land, which had previously

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been acquired from them. The appellants’ case was that it was the 1st appellant’s family that was entitled to the reversionary interest in the land because it originally belonged to them and was acquired by the government of the old Western Region through a negotiated acquisition and without payment of compensation.

They also assert that the 2nd – 9th appellants are settlers on the land who claim to have been put in occupation by the 2nd and 3rd respondents, pursuant to the acquisition of the land from the 1st appellant’s family and that their interests are affected by the release of the land to the 1st respondent. The 1st respondent contends that the old farm school was never acquired. I am therefore of the considered view that a crucial aspect of the appellants’ case is the acquisition of the land. If there is no acquisition, the issue of reversionary interest would not arise.

In paragraphs 9 – 21 of their further and better amended statement of claim, the plaintiffs traced the root of their title from the grant to their ancestor, Ikolaba Olufinmo, by Kumoye the Soun of Ogbomoso down to his descendants

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including the 1st appellant and surviving members of the Ikolaba Ayoola chieftaincy family. In paragraphs 22 – 30 they pleaded facts relating to the negotiated acquisition of the old farm school in 1948 without compensation and the further acquisitions of 1960 and 1962. As already stated, the respondents denied the claim that the old farm school land was acquired by the government. They contend that what was acquired was the farm settlement, which belongs to 1st respondent’s family having settled thereon many years ago. That the farm settlement is adjacent to the old farm school and that it was 1st respondent’s family that was paid compensation when it was acquired.

In the course of his submissions, learned counsel for the appellants argued that the 1st respondent failed to adduce any evidence to prove ownership of the land by way of settlement and urged the Court to discountenance the assertion. In light of the authorities earlier referred to, not having filed a counter claim, the only onus on the 1st respondent was to defend the action. He had no duty to prove his title. The issue is whether the appellants had adduced enough evidence to entitle them to the reliefs sought.

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The Court below at page 388 and 389 – 390 of the record found as follows on the issue of compensation:

“The 1st respondent who claimed that compensation was paid to his family over the 1960 and 1962 acquisitions by the Government did not tender any document to that effect, rather, the PW9 the Soun of Ogbomoso tendered Exhibit 32N as evidence of compensation paid by Government, this Exhibit is the same as Exhibit 35 tendered by the appellant, both showed that compensation by Government was paid to the appellant and not the 1st respondent’s family in respect of the farm settlement. Similarly, Exhibits 30 and 30A, letters written by I.O. Ogundele & Co. (Solicitors to the Association of Farm Settlers, the 2th-9th respondents) to the Government.

The 1st respondent has not alleged that only the land in dispute was acquired from his family, but rather that the Farm Settlement was also acquired.

It is clear that the respondents were also plaintiffs in the trial Court as stated earlier in this judgment and in this Court filed a joint brief, but while the 1st respondent has claimed ownership of the land in

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dispute, 2nd-9th respondents have conceded that the farm settlement land belongs to the appellant’s family to which compensation was paid by Government, the land which is adjacent to the land in dispute, whereas the 1st respondent consistently insisted that the land in dispute and the farm settlement belong to his family, their stories are not consistent.

… I am of the respectful view that had the learned trial Judge properly considered the effect of the compensation paid to the appellant’s family in respect of the farm settlement land he would have arrived at a different decision. This is so because acknowledgment of such compensation confirms the family’s title to [the] land as they would not be paid compensation by Government if the land did not belong to the appellant’s family.

There is nothing on record to prove that there was a negotiated acquisition from the 1st respondent’s family in 1948. Exhibit 36 is the lease relied upon by the respondents. The said Exhibit was made in 1951 and on the face of it, cannot confirm negotiated acquisition of the land in dispute by the Government from the family of the 1st respondent.”

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Are the findings above supported by the record It is not in dispute that there is no documentary evidence of the negotiated acquisition of 1948. In his evidence in chief, PW1 testified that after the acquisition, the government built silos for storing grains, offices and an underground structure for repairing vehicles. He also testified that the government used the land for farming and for keeping poultry and pigs. He testified that the 1948 acquisition was expanded in 1960 and the family was paid 460 as compensation for the expanded portion, which he personally collected in 1962. Under cross examination he stated that he did not know the size of the 2nd acquisition in respect of which his family was paid compensation.

PW9, the Soun of Ogbomoso testified at page 135 of the record thus:

“In 1947, it was during the colonial era, the Colonial masters came to meet the Baale of Ogbomoso then and requested for land for farm school. The Baale of Ogbomoso then ordered his chiefs to take them round to look for a suitable place to establish the farm school. The colonial people went round the town and later came to report to the Baale of

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Ogbomoso that they prefer the land that was originally given to the Ikolaba Family. The land is situate along Oyo Road in Ogbomoso.

The land is the same as the land in dispute. Because of [the] importance of establishing a farm school in Ogbomoso to the development of Ogbomoso the Baale called on the Ikolaba to leave the land so that it could be acquired by the government.

The government wanted to pay compensation, but the Baale of Ogbomoso refused to accept it because the establishment of the farm school is a kind of development to Ogbomoso. A lease agreement was entered into for 99 years between the Baale of Ogbomoso and the government. I sent people to the Ministry of Land to search for the lease, but the file could not be traced there, talk less of the lease. When I could not get the lease from the Ministry, I then went to the Archive where I discovered some documents relating to the lease. I collected certified true copies of the documents.”

Exhibits 32 – 32N were tendered through him and admitted in evidence. At page 137 of the record he stated:

“I said that the land was leased for 99 years in 1947 and not that it was acquired.”

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Under cross-examination at page 138 of the record, he stated thus:

“Nominal rent is supposed to have been paid for the lease, but there is no record of how much was paid. I was not the Oba in 1947 and I don’t know where the copy of the family lease was kept.”

It is pertinent to note that the evidence of PW9 to the effect that the land in dispute was leased to the government by the Baale of Ogbomoso in 1947 for 99 years at a nominal rent is at variance with the appellants’ pleading that the there was a negotiated acquisition of the land in 1948 for which no compensation was paid. The appellants pleaded that the land was acquired from the 1st appellant’s family and not from the Baale of Ogbomoso. They did not plead a lease for 99 years. The evidence led in this regard therefore, goes to no issue.

Exhibits 32 -32N were tendered by PW9 in support of his evidence that the land in dispute was leased to the government for 99 years. In addition to the fact that the appellants did not rely on a lease, there is nothing in the exhibits that refers to the 1st appellant’s family as the owners of the land in dispute.

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Exhibit 32A is a letter written in September, 1947 by the Acting Resident, Oyo Province to the Provisional Agricultural Officer, Oyo Province. It is headed ‘Ogbomoso Farm School’ and states inter alia:

“With reference to your … No. 636/OYO/28A of the 28th of August, I am informed that in collaboration with the District Officers Ibadan Northern District and the Ogbomoso District Council, you have selected suitable land for the Ogbomoso branch of the Farm School.

In my opinion the land should be formally acquired by Government either outright or on a 99 years lease, preferably the latter.”

Exhibit 32J is a letter dated 28th June 1951 addressed to The Resident, Oyo Province by the Agricultural Officer in charge of Farm Schools in Oyo. It reads, inter alia:

“With reference to your query, passed to me by the Agricultural Officer, Oyo, the position is that the site of Oyo Farm School was an acquisition by government, while that of Ogbomoso Farm School was a 99 year lease at a nominal rent by the Baale of Ogbomoso.”

The appellants pleaded that the land in dispute was acquired without the payment of compensation. This

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document therefore does not support their pleading

Exhibit 32N is dated 17th September, 1973. It is addressed to Oba S.L. Atoyebi II, Onpetu of Ijeru from the Agricultural Department, Ibadan. It is headed

“Acquisition of Land at Ogbomoso for Farm Settlement: Payment of Compensation”. It reads in part:

“I am directed to refer to your letter of 11th September, 1973 and to inform Your Highness that at sum of N24,464 (i.e. 12,232) was paid to you through your attorney, Mr. Adedapo Adeniran, Solicitor, on 28th June 1962 as compensation for all your rights and interest in the above-mentioned property acquired under the Public Lands Acquisition Law Cap. 105 of Western State, Nigeria,”

The document, as observed by learned counsel for the 1st respondent, has nothing to do with the appellants. It is not addressed to them and does not refer to them in any way. The 1st respondent had already testified that his family was paid compensation in respect of the farm Settlement. Exhibit 32N, which is the same as Exhibit 35 tendered by the 1st respondent, supports the 1st respondent’s pleading.

One thing that is apparent from Exhibits 32 -32N is that the

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government of the old Western Region was quite meticulous in keeping records. I am inclined to agree with learned counsel for the 1st respondent that if indeed the land in dispute was acquired from the 1st appellant’s family, by whatever means, it would have been documented. While it is true that a fact may be proved by oral or documentary evidence, it is equally trite that documentary evidence is the hanger upon which oral evidence is measured. As the evidence of PW9 is inconsistent with the case put up by the appellants as regards the acquisition of the land in dispute, the lower Court was right, in my view when it held that there was no proof of the 1948 acquisition.

Another nail in the appellants’ case can be found in Exhibits 30 and 30A. They are letters written by the solicitors to the farm settlers (including 2nd – 9th appellants) to the Executive Governor of Oyo State complaining about “the encroachment of land legally acquired by Western Region (Oyo State) of Nigeria.”

Exhibit 30 reads in part:

“The original owners of the land i.e. the Onpetu of Ijeru Chieftaincy Family of Ogbomoso headed then by

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His Highness Oba S.L. Atoyebi were paid compensation for their rights and interest on the land in June 1962 through their approved solicitor, Adedapo A. Adeniran Esq. who signed a certificate of indemnity dated 27th June 1962. By the certificate of indemnity signed by their Solicitor, the Onpetu of Ijeru relinquished all their rights and interest in the acquired land.”

The statement in Exhibit 30 is at variance with the appellants’ contention that the land in dispute originally belonged to the 1st appellant’s family. The document was tendered in support of the appellants’ case. It is against them.

The Court below juxtaposed Exhibit 30 with the pleading in paragraph 37 of the further and better statement of claim wherein the appellants pleaded that the 1st respondent’s family had been paid compensation in respect of the acquisition of the farm settlement, Which is adjacent to the land in dispute, and paragraph 5 of the third defendant’s consequential statement of defence wherein the 1st respondent pleaded that it was his family that was paid compensation in respect of the farm settlement land. The Court also considered Exhibit 32N tendered by the

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appellants, which is the same as Exhibit 35 tendered by the 1st respondent, and observed that it supports the 1st respondent’s pleadings and is against the appellants. The position of the lower Court was that while the 1st respondent had pleaded and led evidence of payment of compensation in respect of land adjacent to the land in dispute, there was no evidence whatsoever from the 1st appellant to support the claim of negotiated acquisition or any acquisition at all in respect of the land in dispute. I agree.

At page 260 of the record, the learned trial Judge held, inter alia:

“That by virtue of Exhibit 36 and other relevant documents tendered in this case including the evidence of PW9, the land in dispute was leased from the family of the 1st plaintiff and not the family of the 3rd defendant.”

With due respect to His Lordship, as emphasised throughout this judgment, the appellants’ claim was not based on a lease. It was based on a negotiated acquisition without compensation. Furthermore, the evidence of PW9 has been shown to be at variance with the appellants’ pleading. The Court below, in my considered opinion,

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rightly reversed the erroneous findings. The appellants, having failed to discharge the onus of proving their entitlement to the declaratory reliefs sought, the judgment of the trial Court was rightly set aside. This issue is accordingly resolved against the appellants.

Issue 2

Whether the lower Court was not wrong when it held that the 2nd-9th appellants pleaded that the land in dispute belongs to the 1st respondent’s family and that the case put up by the 1st appellant was inconsistent with the case of the 2nd -9th appellants.

In support of this issue, learned counsel for the appellants submitted that the lower Court erroneously held that the 2nd-9th appellants pleaded that the land in dispute originally belonged to the 1st respondent’s family and that it was leased to them by the said family, as the finding is not borne out by their pleadings. He submitted that there is no admission in paragraph 37 of their further amended statement of claim or in Exhibits 30 and 30A that the 1st respondent’s family was paid compensation in respect of the land in dispute, rather that it is their contention that

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the said family was paid compensation in respect of adjacent land. He submitted further that even if it is conceded that there is such an admission in Exhibits 30 and 30A, such admission would not bind the 1st appellant, as it was not written on his behalf or by his solicitors.

He submitted that there is no inconsistency in the case of the 1st appellant and the 2nd – 9th appellants. He submitted that while the 1st appellant relied on original grant of the land to his ancestor and devolution thereof on his descendants as well as negotiated acquisition in 1948 and further acquisitions in 1960 and 1962, the case of the 2nd – 9th appellants is that upon the acquisition of the land in dispute by the government, they were granted leases of 99 years each upon the payment of specified amounts as ground rent and that the release of 55% of the old farm school to the 1st respondent’s family has affected their interest.

In response, learned counsel for the 1st respondent referred to paragraphs 37 and 44 of the further amended statement of claim and Exhibits 30, 30A and 31 tendered by the 2nd – 9th appellants. He also referred to the evidence of their witnesses, PW8 and PW10.

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He submitted that Exhibit 30, 30A and 31 relate to the old farm school, which the 1st respondent is alleged to have encroached upon by burying his wife thereon, dividing the land into layouts and selling same to third parties.

He noted that learned counsel conceded that there was an admission in Exhibits 30 and 30A to the effect that the land originally belonged to the 1st respondent’s family, although he urged that they cannot be construed against him since they are not his documents. He argued that if the Court accepts that the exhibits constitute admissions against the 2nd – 9th appellants, the effect is that their case is inconsistent with that of the 1st appellant. On the need for parties to be consistent in the case they present to the Court he relied on Emegokwue vs Okadigbo (1973) 4 SC 113; Total Nig. Ltd. vs Nwako (1978) 5 SC 1; George vs Dominion Flour Mills Ltd. (1963) ALL NLR 70 @ 76 and Okagbue vs Romaine (1982) 5 SC 133.

Learned counsel for the 2nd and 3rd respondents made similar submissions in their brief.

The submissions of learned counsel for the appellant in his reply brief are mainly a re-hash of his earlier arguments.

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It is important to note that the appellants filed a joint claim at the trial Court and sought joint reliefs. Their claims are dependent upon proof of acquisition of the land in dispute from the family of the 1st appellant in 1948 by the government of the old Western Region. The 1st plaintiff claims that his family is entitled to the reversionary interest in the land and that the 2nd -9th appellants acquired their interests in the land as a result of the said acquisition. It is their case that the family of the 1st respondent is not entitled to the release of 55% of the land in dispute because they had previously been paid compensation in respect of their land, which is adjacent to the land in dispute. In the course of resolving the first issue, I agreed with the Court below that the 1st appellant failed to discharge the burden on it of proving the said acquisition and that any evidence led in respect of the grant of a lease for consideration, not pleaded, goes to no issue.

In paragraph 43 of the further amended statement of claim it was pleaded:

“43. The settlers association personally protested in

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writing to the Oyo State Governor over the illegal occupation of the land in dispute through their former solicitor, I.O. Ogundele Esq. in the year 2001 but the 3rd defendant continued his acts of tresspass on the land.”

In support of this pleading, the 2nd – 9th appellants relied on Exhibits 30 and 30A dated 6th and 21st June 2001 respectively. It follows that the exhibits were relied upon to prove that the 1st respondent’s family had no right to be on the land leased to them. In Exhibit 30, their solicitors, I.O. Ogundele & Co. stated that the land was acquired by the government of Western Region in 1960 and 1962. It was the 1st appellant’s case that the land originally acquired in 1948 was expanded by subsequent acquisitions in 1960 and 1962 and that he was paid compensation in respect of the 1960 acquisition. The exhibit therefore, refers to the land in dispute. I had reproduced earlier in this judgment the portion of this exhibit where it was stated categorically on behalf of the farm settlers, that the land originally belonged to the family of the 1st respondent. This document, tendered in

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support of the appellants’ joint claim, is certainly against their interest and inconsistent with the 1st appellant’s claim.

The 2nd -9th appellants have pitched their tent with the 1st appellant. They sink or swim with him. I find no reason to disturb the sound reasoning of the lower Court that the case of the 2nd-9th appellants was inconsistent with the 1st appellant’s case. This issue is accordingly resolved against the appellants.

Issue 3

Whether the lower Court was not wrong when it set aside the award of damages and order of injunction made by the trial Court against the respondents.

It is the appellants’ contention that there was evidence before the trial Court that the 2nd-9th appellants were in actual possession of the land in dispute, having been granted various leases for 99 years by the 1st and 2nd respondents, which leases are subsisting and that they pleaded and led evidence of trespass by the 1st respondent, which was not challenged. He submitted that trespass to land is a violation of a possessory right and that any person in possession of a piece of land can maintain an action in trespass, whether or not he is the

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owner of the land. He referred to:Adebanjo Vs Brown (1990) 3 NWLR (Pt.141) 611 682; Olagbemiro Vs Ajagungbade III (1990) 3 NWLR (Pt.36) 37; Odekilekun Vs Hassan (1997) 12 NWLR (Pt.531) 56 70.

Learned counsel submitted that the visit by the trial Court to the locus in quo confirmed their presence on the land. He submitted that mere general denial of the appellants’ pleading on the issue is not sufficient to challenge the specific averments. He relied on Jackson Vs Uba (1993) 3 NWLR (Pt.283) 586 @ 601.

In response, learned counsel for the 1st respondent submitted that it was not the 1st appellant’s case that he was in possession of the land in dispute. That his case was that his family is entitled to the reversionary interest in the land where the purpose for the acquisition has lapsed. He submitted that the 1st appellant failed to prove ownership or exclusive possession of the land in dispute and was therefore not entitled to an award of damages or an order of injunction.

With regard to the 2nd -9th appellants, he submitted that having admitted against their interest that the land

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belonged to the 1st respondent’s family they too are not entitled to the said reliefs. He submitted that the case of the 2nd – 9th appellants is consistent with the case of the 2nd and 3rd respondents who pleaded that the land in dispute originally belonged to the 1st respondent’s family. He submitted that without resolving the inconsistency between the evidence of the 1st appellant and the 2nd – 9th appellants, the lower Court could not have found that the 1st respondent trespassed on the land in dispute.

He submitted that in order to succeed in a claim for injunction, the appellants must prove that they are in exclusive possession of the land in dispute and that the order will not be granted if the adverse party can prove a better title. He noted that the 2nd and 3rd respondents, who are the landlords of the 2nd-9th appellants, pleaded that the land in dispute was never acquired and that the land belongs to the 1st respondent’s family from whom they leased it for a period of 10 years. He also noted that since the learned trial Judge, on his visit to the locus in quo observed that there were structures belonging to the government on the land, it proves that the 2nd 9th

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appellants were not in exclusive possession of the land in dispute.

Trespass to land is a wrongful entry into the land in actual or constructive possession of another. See: Olaniyan Vs Fatoki (2003) 13 NWLR (Pt.837) 273 @ 278; Eneh Vs Ozor & Anor. (2016) LPELR- 40830 (SC) @ 24 25 B D. A claim in trespass is rooted in exclusive possession and all that a claimant needs to prove is that he has exclusive possession of the land in dispute. Once a defendant claims ownership of the same land, title is put in issue and for the plaintiff to succeed he must show a better title than that of the defendant. See: Amakor Vs Obiefuna (1974) 1 NMLR 313 @ 336; Aromire Vs Awoyemi (1972) 2 SC 182; Ude & Ors. Vs Chimbo & Ors. (1998) 12 NWLR (Pt.577) 169; Provost, Lagos State College of Education Vs Edun (supra).

As far as the 1st appellant is concerned, as rightly observed by learned counsel for the 1st respondent, the whole foundation of his claim is that the land in dispute was acquired from his family by the Western Region government and that they are entitled to the reversionary interest.

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Their case is that if the land is no longer required for the purpose for which it was acquired, or if the acquisition has lapsed, it is the 1st appellant’s family and not the 1st respondent’s family that is entitled to the reversionary interest. The 1st appellant having failed to prove the said acquisition and having failed to prove a better title than the 1st respondent is not entitled to an award of damages for trespass.

The 2nd -9th appellants have also failed to prove a better title than the 1st respondent. The 2nd and 3rd respondents, whom they claim to have given them their leasehold interest in the land testified that the land belongs to the 1st respondent and that their (2nd and 3rd respondents’) lease in respect thereof had expired due to effluxion of time. I agree with the Court below that the existence of government structures on the land noted during the visit to the locus in quo by the trial Court shows that the 2nd- 9th appellants are not in exclusive possession of the land in dispute to warrant an order for damages for trespass or injunction in their favour.

The appellants’ claims for damages and injunction are

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dependent upon the grant of the declaratory reliefs in paragraph 53 (i), (ii) and (iv) of the further and better amended statement of claim. Having held in the course of this judgment that the appellants did not prove their entitlement to the declarations sought, it follows that the Court below was right in setting aside the award of damages and injunction made in their favour by the learned trial Judge. This issue is accordingly resolved against the appellants.

In conclusion, I hold that this appeal is devoid of merit. It is hereby dismissed. The judgment of the Court of Appeal delivered on 1st February 2013 setting aside the judgment of the High Court of Oyo State delivered on 7th March 2007, is hereby affirmed. The parties shall bear their respective costs in the appeal.

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SC.273/2013