Chief O. Odofin V. Isaac Ayoola (1984)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C. 

This case has its genesis from Grade A Customary Court, Ile-lfe. A writ of summons was filed on 29/6/59 as suit No. 390/59 by the present appellant as plaintiff, claiming against the defendant a declaration of title in native law and custom to the land situate lying and being at Oke-Okoko Ashipa, Ife District. An injunction restraining the defendant and his servants and or agents from further interference with the land was also claimed. In the claim, the boundaries of the land in dispute were stated to be as follows –

“1st side by Fasakin’s land, 2nd side by Idowu Akinowo’s land, 3rd side by Akinkumi’s land, 4th side by Majayomi’s land.”

The case was first listed for mention on the 19th December, 1967. The defendant thereafter in his own action in suit No. 165/68 claimed in similar terms, but the boundaries indicated in Suit No. 165/68 are as follows –

“On one side by Olukotun farm-land, on the 2nd side by Olusola Ashipade family land, and on the 3rd side by the farmland of Oruku family.”

The two suits were consolidated and tried. After hearing the parties and their counsel, the learned President of the court dismissed plaintiff’s claim in suit No.390/59, and granted the claim of the plaintiff in suit No. 165/68. Plaintiff in suit No.390/59 appealed to the High Court at Ile-Ife. The judgment of the learned President of the Grade A Customary Court was on the 30th April, 1975, reversed, the claim of plaintiff in suit No. 390/59 was granted, and the claim of plaintiff in suit No. 165/68 was dismissed. Plaintiff in suit No.165/68, then appealed to the Court of Appeal, Division sitting at Ibadan. The appeal was allowed on the 23.4.81. Judgment of the Ile-Ife High Court was reversed, and set aside and judgment of the learned President of the Grade A Customary Court was restored. Plaintiff in suit No. 390/59 hereinafter referred to as appellant has now appealed to this Court from the judgment of the Court of Appeal. It appears from the pleadings which were subsequently made part of the record of appeal in the High Court on the order of the judge, that the actions were brought and defended in representative capacities. There is no doubt that the actions were fought in the Grade A Customary Court on the pleadings. The statements of claim and defence are now reproduced at pages 62b – 62f of the printed record of proceedings.

The case of plaintiff in suit No. 390/59, who is the present appellant, the Odofin of Ashipa, is that the land in dispute was granted to the Ashipa Community by the Oni of Ife, Adegunle Abewela many years ago. The grant was made to the then Ashipa, named Fashina. The Ashipa Community has been in possession since then, and in appreciation have always made annual presents of yams etc. to the Oni.

Members of the Community have been farming the land, and have planted various cash crops and erected buildings without being disturbed by anyone until 1959 when the plaintiff in suit No. 165/68, the present respondent disturbed their user. This was reported to the then Oni of Ife who intervened, but was unable to effect a settlement.

The case of the respondent, who is the plaintiff in suit No.165/68 is that the land in dispute is only part of a larger piece of land founded and first settled upon by his ancestor called Akalako Apetumodu, and who named the area Ipetumodu. The land descended through him to the family of Obiwale, its Bale, who holds the land in trust for the family. The land in dispute is adjacent to Ashipa town and includes Ashipa market. It has been used by the Ipetumodu people for farming and planting cash crops. Among the tenants placed on the land are members of the Ashipa Community including the father of the present appellant who was put there by respondents. The tenants so placed paid Ishakole to respondents. Respondents also granted a portion of the disputed land for the building of the Origbo Community Grammar School. The present dispute arose because some Ashipa Community tenants including the present appellant have failed to pay ishakole to the respondents.

At the trial both parties filed separate plans exhibits A and D respectively in support of their case. As I have observed earlier, the descriptions of the land in dispute are not identical. Consequently, exhibit A, the plan of plaintiff in suit No.390/59, the present appellant, shows the land in dispute as covering 208.32 acres, the area in dispute in exhibit D, claimed by the present respondent and plaintiff in suit No. 165/68 covers 196.9 acres. Apart from the agreement in the two plans showing the Ashipa market, (South-west tip) and Origbo Community High School (North Easterly), there is no complete uniformity in the names of the boundary men; similarly the names of the streams flowing in or out of the land in dispute. However, both plans agree on the Okoko stream. It is however of crucial importance to observe that both parties claim to derive their title in different capacities. Whereas the appellant claims to derive his title from grant from Oni Abewela, the respondent’s claim is that title was derived by first settlement of his ancestor Akalako. I reproduce hereunder the relevant paragraphs of the pleadings of the parties disclosing their claims as to their roots of title.

Paragraphs 3, 4, 5, of the statement of claim reads-

“3. The plaintiff and the people he represents are the owners of the land delineated on plan No. LD3 already filed and therein edged yellow.”

“4. The plaintiff and the people he represents have been the owners of the land in dispute from time immemorial and have also been in undisturbed possession for a long time with no interruption from any quarters.”

“5. According to traditional history, it was Oba Adegunle Abewela, the Oni of Ife who gave the land in dispute to the plaintiff’s ancestor by name Fashina alias Ashipa who was the first settler on the land.”

Paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11 of the statement of defence is as follows:-

“3. From time immemorial the defendants’ ancestor a great hunter named Akalako came to Ipetumodu to hunt and eventually settled there.”

“4. The said Akalako was otherwise known as Apa-Etu-mo-Odu, and the town of Ipetumodu was named after him.”

“5. The said Akalako and his children, Fagbemokun and Aribile used for hunting and farming a vast piece of land of which the land in dispute formed a small part.”

“6. On the death of Akalako all his land was inherited by his two children Fagbemokun and Aribile.”

“7. The land in dispute was part of the portion inherited by Fagbemokun.”

“8. Fagbemokun had five children named Arojo Okro, Wobi, Obiwale and Onisungbe Okoko.”

“9. On the death of Fagbemokun all his land was divided into (sic) among his five children.

“10. The land in dispute was inherited by Obiwale as his own share.”

“11. After the death of Obiwale it became the practice for anyone who is Bale of Obiwale’s family to succeed to the land in dispute.”

Because the parties have relied on different roots of title to their claim to title to the land in dispute, and each with different traditional history, it became necessary for the President of the Grade A Customary Court to make such findings of fact as was consistent with the claims of grant of the land in dispute by the Oni Abewela claimed by appellants in this Court, or of first settlement by Akalako by the respondent.

Both claims if established are accepted as methods of acquisition of title to land. See Idundun & Ors v. Okumagba & Ors (1976) 1 N.M.L.R. 200 at p. 210. In both Owonyin v. Omotosho (1962) W.N.L.R. 1 at p. 3, and Oluyole v. Olofa (1968) N.M.L.R. 462, this Court has accepted original settlement on land as evidence of title and ownership to such land. Again where such land has been acquired it passes on death as family land to the children of the original settler – see Oragbaide v. Onitiju (1962) 1 All N.L.R. 32, at pp. 37 – 38.

In Adewoyin v. Adeyeye (1963) 1 All N.L.R. 52, the Oni of Ife in his testimony stated that once an Oni had allocated a portion of communal land to a native of Ife for farming, this carries with it the enjoyment of ownership rights to the exclusion of the community. Thus title to and ownership of land may be acquired either by the appropriation of virgin land by virtue of first settlement, or by grant of communal land by the Oni of Ife. In this appeal, appellant has relied on a grant from Oni Adegunle Abewela several years ago. This suggests that the land so granted was part of communal land of Ife. The traditional evidence in support of this claim consisted in the evidence of the plaintiff, i.e. the Odofin of Ashipa, PW1, John Adekemi, Chief Jaran, James Olusanmi, Chief Akogun of Ife.

The traditional history of the grant is itself a little confused. On the one hand there is the evidence that the land occupied by the Ashipa community was granted to them by the Oni Adegunle Abewela. On the other hand that the land was granted to Fashua, who was then installed Ashipa by Emese at the instance of the Oni. Fashua was living at Modakeke before he was installed the Ashipa. What followed is the geneaology of the descendants of Fashua. Plaintiff has traced his ancestry to Fashua, who was the first Ashipa of the Ashipa Community.

Under cross-examination plaintiff said that the original grant was to Fashua alone. 1st plaintiff’s witness suggested that Ashipa and Fashua are two different persons, and did not know that Fashua is otherwise known as Ashipa. 1st plaintiff’s witness went to see the land in dispute at the instance of the Oni. 3rd plaintiff’s witness said that Fashua was the founder of Ashipa, and that the original grant of the land was given to Fashua. 4th plaintiff’s witness’s evidence is to the same effect.

In the court of first instance, the President of the Grade A Customary Court, found plaintiff’s traditional history as to the grant to his ancestor to be unreliable and indeed was not impressed that plaintiff was a witness of truth. He therefore held that plaintiff has failed to prove title by grant.

On appeal to the High Court, the learned appellate judge reversed this finding, and held that appellant based his claim on grant by the Oni and had proved the grant. He referred to the evidence of plaintiff at page 2 lines 37-40, where he said,

“The land in dispute was given to Ashipa Community by the Oni, Adegunle Abewela. The land was then granted to Fashua, the then Ashipa. The Oni asked an Emese to install Fashua as the Ashipa. Fashua was then living at Modakeke before he was installed the Ashipa”.

The learned appellate judge regarded this as evidence and circumstances of the grant. Under cross-examination appellant said that they paid tribute to the Oni because he is regarded the grantor of the land in dispute. Plaintiffs/Appellants in this Court, appealed to the Court of Appeal. Altogether six grounds of appeal were filed and argued. Ground 5 which was argued first attacked the reversal of the judgment of the President on the issue of the grant to appellant of the land in dispute.

The Court of Appeal, reversing the appellate judge that appellant has proved title by grant, accepted the findings of fact of the court of first instance that appellant had not succeeded in adducing evidence to prove grant of the land in dispute by Oni Abewela. The remaining five grounds of appeal were argued together. Summarily stated they relate to reversal by the appellate High Court judge of the findings of fact of the President of Grade A Customary Court and granting appellant’s claim when he failed to prove the boundaries of the land in dispute. In respect of the finding of facts, the Court of Appeal, after hearing arguments, agreed with appellants’/now respondents’ counsel that the reasons given by the President in the court of first instance were cogent, necessary and relevant. In rejecting appellant’s traditional history, the trial court said, at p. 49.

“The plaintiff stated he is third in rank at Ashipa but no other chief from Ashipa was called to give evidence. Chief Jaran, second witness for the plaintiff, admitted categorically that Fashina and Ashipa are two different persons. The plaintiff’s traditional history as to the grant to his ancestor is unreliable and he has not impressed me as a witness of truth. It appears to me that certain conditions were attached to the grant made to his father. If Ashipa people were granted land in respect of which they brought certain ‘Isin’ to the Oni of Ife, it could not be in respect of the same land in dispute. The plaintiff was having in mind two parcels of land as admitted by him under re-examination by Mr. Obiyemi.”

In the Court of Appeal the court considered the issue of conflicting traditional evidence, the evidence of acts of ownership adduced by the parties, the fact that appellant failed to bring as his witness the Oni of Ife, or his emissary, as his grantor. On the other hand, defendant/respondent’s claim rests on original settlement, and that there was evidence of acts of ownership and evidence of boundary witnesses.

There was also the categorical assertion that they paid tributes to no one. On these evidence the court observed,

“…the learned appellate judge should have been very slow to set aside the findings of fact of the trial President who saw the witnesses and was clearly in a better position to assess/evaluate their evidence vide Shoo-Peterside v. Ezeoigakwe & 6 Ors. 11 N.L.R. 41″.

Finally, on this point, the court said,

”The findings of fact of the court below appear to me based very much on the evidence. They are not perverse nor they be said to be based on a wrong evaluation as to justify the appellate judge’s interference with them vide – Fashanu v. Adekoya (1974) 6 S.C. 83 (91).”

With respect to the identification of the land in dispute, in the trial court, the President of the Grade A Customary Court found as follows –

“From the evidence before me, the plaintiff has failed to identify the subject matter of this action with the necessary particularity in the evidence before me, or in the statement of claim filed on 5/11/59. The plan exhibit A does not show even the name of the boundary-man on the North of plan No. LD. 3 of 13/9/59, nor does it show the name of the boundary-man on the South of the same plan and where the name of Orereju is shown, he was not called to give evidence in this case. He did not call Fasakin, Idowu, Akinwowo, Akinkumi and Majayomi”

The appellate judge in reversing this finding made a distinction between the area of “the land in dispute,” and “the area of the land in dispute trespassed by the defendant”, and held that the boundaries of the land in dispute have been clearly stated and that the identity of the land is certain.

In reversing the appellate High Court, the Court of Appeal said, at p.161 –

“As to the correct description on the record, only two boundaries may be said to have been ‘proved’ Le. the 2nd and 3rd sides. No evidence was led identifying Fasakin’s land. It is not shown on the respondent’s plan. The Ipetumodu – Ibadan land is not a correct boundary of the land in dispute. It is only part (less than half) of the boundary; the rest being another survey trace from peg 18 to 26. Assuming that the incorrect rendering is correct, the same observation that two sides l.e. the 1stand 4th were not proved is applicable.”

In the High Court, the appellate judge recognised that there were apparent contradictions in the description of the boundaries of the land in dispute by the appellant, but considered that it was the responsibility of respondent at the trial to confront the witnesses to explain the contradictions. The Court of Appeal has rejected this view. I agree with the view that there is no obligation on the respondent to correct the failure of the appellant to explain contradictions in the description of

40 the boundaries of the disputed land. The Court of Appeal thereupon restored the finding of the trial court that appellant failed to prove the boundaries of the land in dispute with sufficient particularity; accordingly the grant of declaration of title by the appellate High Court was an error.

The Court of Appeal affirmed the refusal of injunction by the appellate High Court. Respondent in the High Court, who was the plaintiff in suit No. 390/59 in the Grade A Customary Court and also the appellant in the High Court, has further appealed to this Court. There are six grounds of appeal. Three grounds were originally filed with the notice of appeal. With leave of this Court three additional grounds of appeal were filed. The grounds of appeal are in substance the same as were filed and argued in the Court of Appeal. They are reproduced below for ease of reference.

Original Grounds of Appeal.

1. The learned Justices of the Federal Court of Appeal erred in law and on the facts in upsetting the decision of the appellate judge that the plaintiff/appellant has proved his grant of the land in dispute by Oni Abewela by holding that “the reliance which the appellate judge placed on the evidence of that grant suggests that he thought other-wise.”

Particulars

(i) The appellate judge had earlier in his judgment reversed the findings of facts of the trial President to the effect that the respondent had failed to prove a grant by Oni Abewela.

(ii) The appellate judge found from the pieces of evidence from the plaintiff/appellant as supported by the evidence of 2nd, 3rd & 4th defendant/respondent’s witnesses that it was ani as the over-lord of the area where the land in dispute was situate that made grants of land to people. (iii) In view of the findings of facts of the appellate judge in favour of the plaintiff on the issue of grant, it is wrong for the learned Justices of the Federal Court of Appeal to hold that the appellate judge thought otherwise.

2. The learned Justices of the Federal Court of Appeal erred in law and on the facts in upsetting the decision of the appellate judge by granting title to the defendant/respondent (i.e. plaintiff in suit No. 165/68) when he did not discharge the necessary onus of proof of title by settlement on which he relied upon.

Particulars

(i) The appellate judge properly evaluated the evidence given in the trial court before setting aside the findings of fact of the trial President which is based on a wrong evaluation.

(ii) The defendant’s evidence of settlement was a bare statement which was uncorroborated.

(iii) The Justices of the Court of Appeal should have dismissed the defendant/respondent’s claims in view of the evidence of 2nd, 3rd and 4th defendant/respondent’s witnesses which contradict the defendant’s evidence of 1st settlement and also paragraph 3 of his statement of defence.

3. The judgment is against the weight of evidence. Additional Grounds of Appeal.

(1) The learned Justices of the Court of Appeal erred in law and on the facts in their application of the principle of Kojo vs. Bonsie (1957) 1 W.L.R., 1223 when they held that the weight of respondents’ evidence with regard to acts of ownership as considered by the learned trial President was greater than that of the appellant, when:

The learned President did not consider properly or at all the evidence given by the plaintiff/appellant on behalf of Ashipa Community of the acts of ownership which they exercised on the land in dispute and the admission by the defendant/respondent of the said acts of ownership exercised by the plaintiff/appellant as contained in his statement of claim and as clearly shown on exhibit A.

(2) Having held that the evidence of a member of grantor’s family is not a sine qua non to proof of grant vide Ishola Vs. Ogunjimi (1972) 1 A.N.L.R. 31 (37) the learned Justices of the Court of Appeal erred in law when they held as follows:

”this is a proper case in which failure to adduce such evidence can affect the weight of evidence and credibility of the grantee adversely. The appellant’s traditional evidence being of original settlement is of a different nature and lends itself more easily to corroboration by acts of ownership and evidence of boundary witnesses which were produced by him.”

Particulars

(i) The plaintiff has discharged the onus of proof of title by grant by giving evidence of the said grant as contained in his particulars of claim and 15 which was supported by the evidence of 1st, 3rd and 4th PWs. Which the learned Justices of the Court of Appeal did not consider in coming to their conclusion.

(ii) None of the boundarymen gave evidence in support of the respondent’s claim that his ancestor was the 1st to settle on the land in dispute. The learned Justices of the Court of Appeal should have dismissed the respondent’s claim as he has not discharged the onus of proof.

(3) The learned Justices of the Court of Appeal erred in law when they held:

“The respondent has indeed failed to prove the boundaries of the land in dispute with sufficient particularity vide the test in Kwazo Vs. Adjei 25 WACA p. 274” (p.162).

Particulars

(i) The appellant filed a plan (exhibit A) which showed the boundaries of the land in dispute whereas in Kwazo Vs. Adjei 10 WACA p. 274 no plan was filed.

(ii) The 1st plaintiff/appellant gave the description of the boundaries of the land trespassed upon by the defendant. The description agreed with the area marked yellow in exhibit A which the plaintiff/appellant claimed to be in dispute.

Counsel for the appellants and respondents have filed their briefs of argument which are as comprehensive as any can be. They appeared before us on the 11th Sept. but we did not consider it necessary to hear further elaborate arguments on the issues raised. Counsel for the appellants, R. A. Ogunwole Esqr. has at p. 2 of his brief set out what he considers as the issues arising in the appeal, as follows

Issues Arising in the Appeal

“1. Whether the appellant in suit No. 390/59 has discharged the onus of proof of title by grant from Oni Abewela.

2. Whether the respondent has proved ownership of the land in dispute by settlement.
3. In applying the principle in Kojo II Vs. Bonsie (1957) 1 WLR 1223 to conflicting traditional evidence, whether the ‘facts in recent years’ as given by the respondent are more positive and numerous than that of appellant.
4. Since the plaintiff relied on title by grant whether it is necessary for him to prove acts of ownership as laid down in Ekpo Vs. Ita 11 NLR 58.
5. Whether the appellant has proved the boundaries of the land in dispute.”

Concisely stated the issues can be considered under two principal questions namely,

1. Whether the party claiming title to the disputed land on grant from the Oni of Ife, or on first settlement by his ancestors has established such claim
2. Whether the parties in dispute have established the boundaries of the land in dispute

It is important to so frame the questions because this is a consolidated action with each plaintiff making his claim supported by his plan. Furthermore the root of title is clearly different. As I have already pointed out earlier, whereas appellant derives title by virtue of a grant from the Oni of Ife, the respondent is claiming to have derived his title by virtue of the first settlement of his ancestors. According to my formulation of the issues in this appeal, grounds 1 – 5 of the grounds of appeal fall within proving title to the land in dispute. Ground 6 falls within the establishment of the boundaries of the land in dispute. I shall discuss the issues in that grouping. The contention of counsel for the appellants in this Court is the same as his argument before the Court of Appeal on the first question raised. This is that the Court of Appeal ought not to have disturbed the findings of fact of the appellate High Court. That the appellate High Court was right in setting aside the findings of fact of the trial President who has made an imperfect or improper use of the opportunities of hearing and seeing the witnesses.

He submitted that the facts found do not support the conclusion of the trial President which was accepted by the Court of Appeal. In his reply in his brief counsel for the respondent submitted that appellant did not discharge the onus on him to prove the grant to him of the land in dispute. He submitted that the evidence of the appellant on the issue was not supported by his key witnesses.

It is well settled that where a plaintiff relies on grant or original settlement as title to claim the land in dispute, the burden is on him to establish such grant or original settlement – this he can do by cogent and acceptable evidence of tradition, whether or not, accompanied by exercise of dominion which alone may be sufficient to establish title – See Alade v. Awo (1975) 4 S.C. 215,228, Idundun v. Okumagba (1972) 1 NMLR. 200 at p. 210, Iba Oluyole v. Olota (1968) NMLR. 462. Or where evidence of tradition is inconclusive, by giving evidence of positive and numerous acts unequivocably pointing to the exercise of acts of ownership over the disputed land – See Abudu Karimu v. Daniel Fajube (1968) NMLR. 151, Olujebu of Ijebu v. Oso, Eleda of Eda (1972) 1 All NLR. (pt.2) p. 93, Ekpo v. Ita 11 NLR. 68, Otuah Akpapuna & 3 Ors. v. Obi Nzeka & 3 Ors. (1983) 7 S.C. 1. It follows therefore where traditional evidence of that alleged from which title is derived, is lacking or rejected, as was in this case, such evidence is not only merely inconclusive but also cannot be relied upon whether any other acts positive or numerous can support evidence of ownership. The basic foundation, that is traditional evidence, having been rejected, there is nothing on which to found acts of ownership. In this appeal, the finding of the trial President of the Grade A Customary Court, was that appellant has failed to prove his grant by the Oni.

This finding of fact has been accepted by the Court of Appeal. The function of an appeal court in such cases has been clearly laid down in Ukejianya v. Uchendu 13 WACA. 43 at p. 45; Zaria v. Maituwo (1966) NMLR. 59 at p. 61, Oroke v. Edet (1964) NMLR. 118, at p. 119, Egri v. Uperi (1974) NMLR 22 at p.26. Ogundulu & Ors. v. Phillips & Ors. (1973) 2 S.C. 71 and many others. It is that where a court of trial which saw and heard witnesses has come to specific findings of facts on the evidence in issues before it, an appellate court which had no similar opportunity should refrain from coming to a different finding, unless it can show that the conclusion of the trial court was perverse, or that the conclusions could not follow from the evidence before it – See Lucy Onowan & 4 Ors. v. Iserhein (1976) 1 NMLR. 263, Federal Commissioner of Works and Housing v. Lababedi & 15 Ors. (1977) 11 – 12 SC. 15.

Since the findings of the trial President of the Grade A Customary Court, the appellate High Court had no just cause for reversing such findings having not found the conclusion was perverse. Although the appellate court is in as much a favourable position to draw inferences from the facts found by the lower court – See Fabumuyi & anor. v. Obaje & anor. (1968) NMLR. 242, an appellate court cannot substitute its own views for that of the court of trial, as was done in this case on the ground that if the facts were before it, it would not so hold – Akinloye v. Eyiyola & Ors. (1968) NMLR. 92. This was what the learned appellate judge did. The Court of Appeal was therefore right to have reversed the appellate High Court and restored the finding of the trial President – See Buko v. Nigerian Pools Company Ltd. (1968) NMLR. 196. Ground 6 is against the finding of the trial President of Grade A Customary Court that plaintiff/appellant had failed to prove the boundaries of the disputed land with particularity.

An impressive line of judicial authority has established that a plaintiff seeking a declaration of title to a piece of land must prove its identity with certainty – See Kwadzo V. Adjei 10 WACA p. 274, Udofia v. Afia 6 WACA p. 216. Okorie v. Udom (1960) 5 F.S.C. 162, Onyema Oke & Ors. v. Amos Eke & Ors. (1982) 12 S.C. at p. 218; Elias v. Omo-Bare (1982) 5 S.C. 25. The passages I have earlier quoted in this judgment from the judgments of the trial President of the Grade A Customary Court, and accepted by the Court of Appeal as to the findings of fact relating to the proof of boundary by the appellant show that appellant has not proved the boundaries of the land in dispute claimed by him.

It was pointed out by counsel for the respondent in his brief that the description of the land in the statement of claim, did not correspond with the evidence of the 3rd and 4th plaintiff’s witnesses. Furthermore, that description does not correspond with the plan exhibit A. On a careful examination of the plan exhibit A, it could be seen that the description fails to establish the northern boundary. As was pointed out by the Court of Appeal, the evidence of PW3 which tended to make a distinction between “the land in dispute” and “the area in dispute” does not show any difference between the two sets of boundaries, which are contradictory.

Counsel for the appellant in his brief has distinguished Kwadzo v. Adjei and Alade v. Dina 17 NLR. 35. He submitted that in the former, no plan was filed, whilst in the latter two different plans were tendered, and appellant unable to reconcile them with his evidence, abandoned both plans and relied upon another plan showing an area more than twice the original claim. This plan could not be reconciled with the evidence. Counsel for the respondent has supported the finding of the trial President, and accepted by the Court of Appeal that appellant has failed to prove the boundaries of the land he claims with sufficient particularity. He contended and I agree with him that the learned appellate judge’s attempt at resolving apparent conflicts is a usurpation of the functions of the court of trial by assessing and evaluating afresh evidence and making new findings of fact – See Emaruieru v. Omoyouzou (1977) 2 S.C. 31.

There is clearly no doubt that on the evidence before the court, there are descriptions of the land in dispute which are irreconciliable with the description in the claim in the statement of claim and with exhibit A, the plan filed. Similarly, the evidence of the description in court of the land in dispute was different from exhibit A. In the circumstances it is difficult to say that the land in dispute has been described with sufficient particularity. In Aro v. Obalaro (1968) NMLR. 239, it was stated quite clearly that in a claim for declaration of title, the plaintiff, where he produces a plan, must establish that the plan represents the area of land in respect of which he is seeking the declaration. (See p. 240). The obligation to prove the boundaries of the land which rests on the appellant was not discharged. Similarly in this appeal appellant having not established the boundaries of the land he claims, the claim therefore must fail, and the trial court and the Court of Appeal were right in so declaring – See Okosun Epi & anor. v. Johnny Aigbedion (1972) 1 All NLR. (Part 2) 370 at p. 374.

From the foregoing, the answers to the questions I have posed are that appellant has failed to establish his claim to the land in dispute by grant from the Oni of Ife. He has also failed to establish the boundaries of the land in dispute with sufficient particularity. All the grounds of appeal filed and argued fail and are hereby dismissed. The Appeal is therefore dismissed.

IRIKEFE, J.S.C.: In this case, proceedings were commenced in the Ife Divisional Grade A Customary Court, Ile-lfe by the appellant in a representative capacity against the respondent also in a representative capacity in which the reliefs claimed were –

(a) title under native law and custom to the disputed land and

(b) injunction.

The respondent also counter-claimed in a distinct suit later in point of time in the same terms. Both actions were consolidated for the purpose of trial.

At the end of the taking of evidence, the President (E. O. Idowu, Esq.) a legally qualified man delivered a carefully considered judgment in which, after opining that there was no dispute as to the identity of the land in dispute, he dismissed the appellant’s case and thereafter upheld the respondent’s case.

The appellant appealed against the above decision to the High Court and Wickliffe J. allowed the appeal, set aside the decision of the learned President and entered judgment for the appellant.

On appeal by the respondent to the Court of Appeal the decision of the learned President was restored. The present appeal is against that decision.

I have had the advantage of reading in draft the lead judgment just read by my learned brother Karibi-Whyte, J.S.C. and I am in full agreement with him on his conclusions on the issues of law raised in the appeal. I have not the slightest doubt in my mind that Wickliffe, J. was in error when he reversed the decision of the learned President of the Ife Divisional Grade A Customary Court. The decisions of this court in the following cases, to mention only a few:-

(a) Eba vs. Ogodo & Ors. – 1984 – 4 S.C. 84

(b) Okafor & Ors. vs. Eze Idigo 111& Ors. – SC.65/82 delivered on 1st June, 1984 (unreported)

(c) Woluchem & Ors. vs. Gudi & Ors. – 1981 5 S.C. p. 319 – 40

make it incontrovertible that there was no basis for the learned judge on appeal to interfere with very sound and cogent findings made by the learned President. I also would dismiss this appeal and do so with N300 costs against the appellant in favour of the respondent herein.

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SC.64/1983