Chief Oloshe & Anor. V. Chief Joseph Ogunbode (2001)

LawGlobal-Hub Lead Judgment Report

BA’ ABA, J.C.A. 

This is an appeal against the judgment of the Ondo State High Court, sitting at Owo Judicial Division, in suit No. HOW/19/87, delivered on the 5th of July, 1994. The respondent, who was the plaintiff in the trial court commenced an action by a writ of summons, issued on 21/8/87 and claim against the defendants now appellants as per paragraphs 29 of the amended statement of claim, as follows:-

“29. Whereof the plaintiff claims against the respondents as follows:-

(a) A declaration that the plaintiff is entitled to the customary right of occupancy in accordance with the native law and custom to the piece or parcel of farmland situated and being at Oke-Oge Ugbo Ujeu camp, Ipele.

(b) N5,000 general damages for trespass committed and still being committed on the said farmland.

(c) An injunction restraining the defendants by their servants, agents and/or privies from committing any further acts of trespass on the said land.”

Pleadings were ordered, filed and exchanged. The case went to trial on the amended statement of claim dated 10/10/88, filed on 18/10/88 and amended statements of defence dated 11/11/88, filed the same date.

The plaintiff gave evidence and called two other witnesses while 1st and 2nd defendants gave evidence and called one witness. At the conclusion of the evidence of the parties, counsel for the parties addressed the court. In a reserved judgment, delivered on 5/7/94, the learned trial Judge inter-alia held:

“In summary, the plaintiff’s case succeeds and judgment is entered in his favour against the defendants.”

The learned trial Judge, granted all the reliefs claimed by the respondent as plaintiff.

Being dissatisfied with the judgment, the appellants, appealed to this court by a notice of appeal, containing four grounds of appeal at pages 154-157 of the record.

Briefs of argument were filed and exchanged by parties in accordance with rules of practice and procedure of this court.

The appellants formulated the following issues for determination in this appeal:

“(i) Whether the identity of the area of land in dispute over which order of trespass and injunction was given against the defendants certain and ascertainable to the court and the parties.

Is the traditional evidence given by plaintiff and his witnesses sufficient and accommodating to warrant the presiding Judge to give judgment to the plaintiff?.

(iii) Is it right in this case to hold that the plaintiff must succeed on the strength of his case and the weakness of the defendant’s case that will not avail the plaintiff and yet for the presiding Judge to conclude that the plaintiff has proved his case as required by law and there and then give judgment to the plaintiff upon evidence adduced by the plaintiff and his witnesses?.

(iv) Whether from the foregoing there are material contradictions in the pleading and evidence of the plaintiff witnesses vis-a-viz whether the plaintiff is in exclusive possession of the land.

(v} Whether the trial court had jurisdiction to entertain the plaintiff’s case.”

I must state that in this appeal, it became my lot to sort out the issues from the appellants brief and number them for the appellants as the appellants did not separate the issues for determination from their submission on the issues.

The respondent on the other hand also formulated four issues for the determination of this court. They are:-

(i) Whether the learned trial Judge was right in holding that the identity of the land in dispute was ascertainable as both parties gave identical description of the land in dispute in their evidence before the court with very minor variations.

(ii) Whether the lower court erred in law and thereby came to a wrong decision when it held that the plaintiff has proved his title to the land in dispute by traditional evidence and that long possession has also been proved by the plaintiff.

(iii) Whether the learned trial Judge misdirected himself in law and thereby came to a wrong decision when he held that the plaintiff succeeded on the strength of his case.

(iv) Whether the learned trial Judge was right in deciding that there were no such material contradictions in the pleading and evidence of the plaintiff and his witnesses which go into the root of the plaintiff’s case.”

Learned counsel for the appellants, L.J. Adelegan, in the appellants brief dated 29/9/98, filed on 5/10/99 on issue (i), referred to paragraphs 17 and 5 of the amended statement of claim and the evidence of the plaintiff who testified as P.W.1 and submitted that the evidence is at variance with the pleadings. He also referred to the evidence of P.W.2 in examination in chief as well as the cross examination and stated that there is a claim of injunction in this case as a result the identity of the land in dispute must be certain, citing Onyema Oke v. Amos Eke (1982) 12 SC 218 at 237 in support of his submission.

Learned counsel for the appellants submitted that the pleadings of the plaintiff as to the boundary of the land in dispute is at variance with the evidence of the plaintiff. He added that the evidence of P.W.1 is also inconsistent with the evidence of the other plaintiff’s witnesses. Citing a number of authorities, counsel submitted that it is trite law that a plan is not always necessary to prove identity of the land but in the instant case a survey plan is necessary to be able to identify the land in dispute having regards to the evidence of the plaintiff and his witnesses.

It is submitted on issue (ii) and (iii) argued together that it is the law in an action for a declaration of title to land for the plaintiff to establish his title on one of the five ways of acquiring title to land.

He argued that in the instant case, there was no compliance with one of the five ways as enumerated in the appellants brief. Learned counsel referred to the judgment of the learned trial Judge at page 150 of the record and submitted that the learned trial Judge was wrong in holding that the plaintiff succeeded in proving his title having regards to the traditional evidence adduced by the plaintiff.

On issue (iv), learned counsel for the appellants referred extensively to the pleadings and evidence adduced by the plaintiff and submitted that with all the material contradictions, it is wrong for the learned trial Judge to hold that the plaintiff’s possession of the land is positive and numerous to warrant judgment being given to the plaintiff.

Learned counsel for the appellants urged us to allow the appeal.

In reply, learned counsel for the respondent, A.A. Akintunde, Esq., submitted for the respondent on issue (i), that the rule of law that the respondent as plaintiff must show the court clearly the land to which their claim relates, have been satisfied in the present case before the lower court. He referred to paragraphs 5 and 17 of the amended statement of claim of the respondent as plaintiff as well as the evidence of the plaintiff as P.W1, P.W2 and P.W3 in support of the plaintiff’s claim before the trial court, which is contained in the record of proceedings.

He referred to the evidence of the defendants in the record and submitted that there is no dispute as 10 the identity of the land in dispute. Citing a number of cases, learned counsel for the respondent, submitted that it is not always necessary that the identity of land must be proved by a plan, pointing out that in this case the land in dispute is a large area which can easily be identified by the parties.

He further submitted that there was no controversy as to the identity of the disputed land and urged this honourable court to dismiss issue (i) as it lacks merit.

On issue (ii), as to whether the learned trial Judge was wrong in holding that the plaintiff proved his case by traditional evidence and long possession, counsel for the respondent submitted that the plaintiff and his ancestors were on the land from time immemorial as against the defendants/appellants who admitted that they only entered the land in dispute seven years ago before the institution of this case. He referred to paragraphs 6,7,8,9,10 and 11 of the amended statement of claim and the evidence of P.W.2 and D.W.1, D.W.2, and D.W.3 on the founder of the land in dispute as being the great grand father of P.W.2 Learned counsel for the respondent further submitted that it is trite law that there are five ways of proving title to land and that it is sufficient for a person claiming title to land to prove one of the conditions enumerated at page 7 of the respondent’s brief. Citing Idundun v. Okumagba (1976) 9 -10 S.C. 227; Okafor v. Idigo (1984) I SCNLR 481 at 533; Chief Joseph Abraham v. Ishau Abese Olorunfemi & Ors. (1991) 1 NWLR (Pt.165) 53 at 58 and Mogaji Lasisi Atanda v. Salami Ajani (1989) 3 NWLR (Pt.111) 511 at 515, counsel submitted that the plaintiff/respondent satisfied the conditions (i), (ii) and (iv) and therefore entitled to judgment having proved their ownership.

It is the submission of the learned counsel for the respondent on issue (iii) that the respondent on his pleading and evidence proved his case on the strength of the plaintiff’s claim and not on the weakness of the appellant’s case.

Replying on issue (iv) learned counsel for the respondent argued that the contradictions referred to in the appellants brief are not material and do not go to the root of the respondent’s case. He extensively made reference to the evidence and cited several cases in support of his submission. He urged the court to dismiss the appeal.

I intend to determine this appeal on appellant’s issues (i) and (ii) only which I believe are sufficient to dispose of the appeal. From the issues formulated, and argued by the parties, it is necessary for me to examine the pleadings and the evidence in order to properly determine the issues. I consider paragraphs 5,6,7,8,9,10,11 and 17 of the amended statement of claim relevant, so they are hereby reproduced below:-

“5. The plaintiff avers that the farmland which is the subject matter of this action situates at Oke Oge Camp in Ugbo Ujeu a place which is along Ifon Road and it is a non-urban area.

6. The plaintiff avers that his ancestors called Olasihiri settled on the land in dispute and the adjourning land about three hundred years ago in accordance with native law and custom for farming purposes.
7. The plaintiff avers that further to paragraph 5 above the said Olasihiri was both a hunter and farmer. The said Olasihiri chose the site in accordance with native law and custom about three hundred years ago and settled there for farming and hunting.
8. The plaintiff avers that at the time the land in dispute was acquired by his ancestor called Olasihiri it was a thick virgin bush which he gradually cleared and made his farms from year to year with members of his family.
9. The plaintiff avers that since Olasihiri settled on the land in accordance with native law and custom he was in continuous and undisturbed possession thereof and exercised all acts and many acts of ownership and possession thereon until he died.
10. The said Olesihiri beg at Nana Wuru, Nana Wuru begat Orilogi, Orilogi begat Arowomoten and the plaintiff as well as other children.

When Olesihiri died, Nana Wuru succeeded him on the land. Nana Wuru died about one hundred years ago and was succeeded by Orilogi who died about forty three years ago.

11. The plaintiff avers that after the death of his father Orilogi about forty three years ago he together with his brothers inherited the land in dispute and continued to make farms thereon both permanent and other various crops thereon ever since.
12. The plaintiff avers that the land in dispute is now bound as follows:-

(a) On the 1st side by the farmlands of Oloye Olowu Oludaiye and Atiba Ogunmulele.

(b) On the 2nd side by the farmlands of Arokoyu Olugbara and Daniyan.

(c) On the 3rd side by Government Forest Reserve.

(d) On the 4th side by Ugbo Ujeu Road.”

Paragraphs 5, 6, 7 and 8 of the amended statement of defence are equally relevant and are as follows:-

“5. The defendants admit paragraph 5 of the amended statement of claim to the extent that the land in dispute is at Oke-Oge camp Ugbo Ujeu but denies that it is situated along Hon road in that it actually situated along Ikaro road.

6. In answer to paragraphs 10 of the amended claim, the defendants aver that Nana Wuru was the actual name of the plaintiff’s ancestor and that Olesihiri was just an appellation. The issue that Oleshiri begat Nana Wuru does not therefore arise.

In further answer to paragraphs 6,7,8,9,11,12,13,14,15, and 16 of the amended statement of claim, the defendants aver that:-

(a) The plaintiff’s ancestor never settled at the land in dispute talkless of farming thereon.

(b) That neither the plaintiff, his father nor any member of his family ever farmed at the land in dispute talkless of having customary tenants thereon.

8. In denial of paragraph 17 of the plaintiff’s amended statement of claim, the defendants aver that the land in dispute is bounded as follows-

On the right by Aladenoba (the father of Daniyan) camp.

On the left by Atiba Ogunmulele camp.

At the front by Government Forestry Reserve.

At the back by Oludaiye Oloye camp.”

I now turn to the evidence adduced before the trial court. The plaintiff, one Chief Joseph Ogunbodede, testified as P.W.1 at pages 91-95 and was cross-examined at page 109 of the record. He amongst other things said:-

“I know the boundaries of the land in dispute. It is bounded on one side by Chief Daniyan’s farmland (Daniyan is from Aladenoba family) on the 2nd side by Oludare Olowu’s farmland on the 3rd side by the Government Forestory Reserve and on the 4th side by Ugbo Ujeu’s Road. Our boundary men are not members of our family. They are from Akederoba family. The defendants do not farm on the land in dispute. It is not true that the defendants have their family shrines on the land. They don’t have their huts there. The defendants have just created huts on the land. The land in dispute is along Ifon road and not along Ikaro Road.

I have stated the truth. I want the court to give me judgment.”

On cross-examination P.W.1 said:-

“The boundaries of the land in dispute are on first side the land of Chief Ogunmulade and Oloye Olowu, on the 2nd side by the land of Ogunkuade, 3rd side by the Government Reserve forest and on the 4th side by Igbojawuru. Nanawuru founded the land in dispute. Narawuru during the war settled originally on the land. Nara Wuru was a hunter. I don’t survey the land in dispute. I don’t know how long it is. The land in dispute is not within the community land of Isolo people in Ipele. I know Oluradan of Ipele. Oloye Oluwo is from Oluradan family. This Oloye Olowu farms on the land in dispute. My father granted Oloye Olowu land on the land in dispute. Ogunkuade is my father’s in law. My father invited him to farm on the land in dispute. Oke Oge is so called because of the river called Oge which is on the land in dispute. The land in dispute is called both Igbojeun and Oke Oge. Igbojeun is the name of the road leading to the farm.”

P.W. 2, one Christiana Ijake, a full sister to P.W.1 testified and was cross-examined at pages 110-112 of the record. She said:

“I know the plaintiff in this case, Chief Ogunbodede. He is my brother-born of the same father and mother. He is older than me. I know the defendants – They are not members of my family. I know that there is a dispute over my family land which brought me to this court.

My family land in dispute is at Igbo Oke my family is called Orilogi. He is dead a long time ago – about 50 years ago. I know him in his lifetime. I am about 50 years. My grandfather is called Nana Wuru. He died a long time ago. The father of Nanawuru is Olesigiri.

Olesigiri first settled on the land in dispute, when he died, Nanawuru his son confirming to farm on the land.

Orilogi succeeded Olesigiri. Narawuru also succeeded Orilogi and farmed there. Other members of the family who farmed on the land includes Aworomotin. Arowomotin is still alive. He is in Ipele.

On cross examination P.W.2 said:-

“I was born there and I grew up on the land. The boundaries of the land in dispute are: on the first side

by Ogunmulele farm land, on the 2nd side by Ogunkuwade farmland, on the 3rd side by the forest

reserve and 4th side by Igbojeun road. The land in dispute is very large. I don’t know the size. Nanawuru was a strong warrior. He first settled on the land.

Nobody could then challenge him. One Oloye has a farm near Ogunmulele. His land was granted him by my father. My father granted land to Ogunkuwade his in law and to Ogunmulele. The land in dispute is not along Ifon road. It is situated along Igbojeun road. It is not along Ikaro road. It is not true that the land in dispute belongs to the defendant’s family.”

The evidence of P.W.3, one Arowomuti Orilogi is at page 113-114 of the record and it reads:-

“I know the plaintiff in this case, Chief Joseph Ogunbodede. He is my half brother. I know the two defendants who are natives of Ipele. They are not members of my Orilogi family. I am in court in respect of the land in dispute between my family and the defendants. The land in dispute is along Igbojeun at Oke-Oge. I live on the farmland. It belong to my father.

I have cocoa farm and crops farm on the land in dispute.

I have a hut roofed with iron sheets on the farm. I have been farming on the land in dispute since my childhood about 100 years ago. My father is Orilogi. He is dead.

He died about 40 years ago. The land in dispute belongs to my ancestors. My father Orilogi farmed on the land in his lifetime. Nanawuru is Orilogi’s father. He too farmed on the land. My father was born on the land.

Nanawuru inherited the land from his own father. The land in dispute is bounded on the 1st side by Oloye Oludaiye family land on the 2nd side by Ogunkuwade family land, on the 3rd by forest reserve and on the 4th side by the Igbojeun road or called Ottemih or ona Oke-Oge.”

On cross-examination P.W.3 said:-

“Oke-Oge farm is different from Igbojeun. Atiba Ogunmulele founded Igbojeun, Nanawuru inherited the land in dispute from his father who was a hunter. I do not know that Oluradan is the head Isolo in Ipele. I do not know the size of the land in dispute but it is a large piece of land. I don’t know how our boundary man got to their own lands but they came individually and met us on our own land.”

Based on the pleadings and the evidence adduced by the parties, particularly the evidence of the plaintiff and his witnesses, reproduced above, the learned trial Judge at page 148 of the record inter alia held:-

“Considering the evidence before the court, I believe the plaintiff that he and members of his family have their farms and camp on the land. I also believe that the plaintiff has many tenants on the land as admitted by the 2nd plaintiff and thus I hold that the plaintiff has succeeded in establishing by credible evidence, that his family exercised positive, numerous and various acts of ownership on the land in dispute to the exclusion of the defendants. I do not believe the evidence of the defendants that the plaintiff and his family are tenants to the defendants on the land in dispute.

In an action for declaration of title to land, a plaintiff may proof his title in any of the established five ways.”

Since the respondent as plaintiff instituted the action and by his amended statement of claim sought for a declaration of title and other reliefs, he has the onus to prove by credible evidence that he is entitled to the declaration of title sought. The plaintiff must succeed on the strength of his case. It is settled principle that in all cases where a plaintiff is seeking for a declaration of title to land, the burden lies on such plaintiff to prove his case on his evidence and will fail if he fails to discharge that burden. See Kodilinye v. Odu (1935) 2 WACA 336; Olufisoye v. Alabetutu (1968) NMLR 297 Gankon v. Ugochukwu Chemical Industries Ltd. (1993) 6 NWLR (Pt.297) 55 SC.

It has been established by a plethora of decided cases of the Supreme Court of Nigeria that in a claim for a declaration of title to land, a plaintiff must produce sufficient evidence to ascertain the definite and precise boundaries of the land claimed, in order to be entitled to the grant. The acid test on the sufficiency of such proof is whether a surveyor taking the record of proceedings, can produce a plan showing accurately, the land to which title has been given. See Ate Kwadzo v. Kwasi Adjei (1944) 10 WACA 274; Arabe v. Asanlu (1980) 5-7 SC 78; Okedare v. Adebara (1994) 6 NWLR (Pt.349) 157.

In a claim for declaration of title such as the one in hand, once there are some features or some descriptions in the evidence which make a disputed land ascertainable, the identity of the land is proved and a grant can be made with or without survey plan. Sokpui II v. Agbozo (1951) 13 WACA 741; Rotimi v. Macgregor (1974) 1 All NLR (Pt.11) 325; Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208.

From the amended statement of claim and the evidence adduced by the respondent and his witnesses in support of his case as plaintiff, I agree with the learned counsel for the appellant that the evidence is at variance with the pleadings and full of contradictions particularly regarding the boundaries of the land in dispute. Even the respondent contradicted himself in respect of the boundaries in that his evidence in chief does not tally with his evidence on cross-examination. For example, in paragraph 5 of the amended statement of claim, the respondent averred that the farmland, the subject matter of this action is situated at Oke-Oge camp in Ugbo Ujeu, a place along Hon road while P.W.2 gave evidence that the land in dispute is not along Hon road but it is situate along Igbejeun Road. P.W.3 on the other hand said the land in dispute is along Igbojeun at Oke-Oge. It should be noted that on cross-examination, P.W.3 said Oke-Oge farm is different from Igbojeun. Also in paragraph 17 of the amended statement of claim the boundaries of the disputed land was given which does not tally with the one given by P.W.1 in his examination in chief which he changed on cross-examination. The boundaries given by P.W.2 tallies with the one given by P.W.1 on cross examination but different from that of P.W.1 as can easily be seen from the evidence. All the three that is P.W.1, P.W.2 and P.W.3 agreed on one point and that is the size of the land in dispute is unknown as there is no survey carried out consequently there is no survey plan.

There are contradictions in the evidence of P.W.1, P.W.2 and P.W.3, on the traditional evidence as to the founder of the land in dispute and inconsistency in the lineage of the family. It may be argued that the same area may be called by different names but it is not being suggested in the instant case and there is no explanation as to the difference in the names of the area given in evidence by the witness.

Applying the acid test stated above as to the sufficiency of proof of the identity of the land in dispute to the instant case, it will certainly fail the test. All that the respondent did was that he adduced evidence which is at variance with the pleadings and the evidence is contradictory and inconsistent. With the greatest respect to the learned trial Judge, I completely disagree that the respondent proved his claim of title to land to warrant the declaration of title and injunction being granted in his favour. In respect of which land was the grant of declaration and injunction made?. Whose evidence did the learned trial Judge rely in granting the reliefs claimed? It may be remembered that parties are bound by their pleadings, so that evidence led with regards to facts not pleaded goes to no issue. See Anyanwu v. Iwuchukwu (2000) 15 NWLR (Pt. 692) 721 at 728-729.

The law is that to establish the traditional history of the land relied on as proof of title, a plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained.

In other words, the pleadings of the devolution and the evidence in support must be reliable, being credible or plausible otherwise the claim for title will fail. See Akinloye v. Eyiyola (1968) NMLR 92; Elias v. Omo-Bare (1982) 5 S.C. 25; Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7) 393; Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413; Uchendu v. Ogbani (1999) 5 NWLR (Pt.603) 337.

In the instant case, it is absolutely imperative to rely on a survey plan in establishing the identity of the land in dispute, having regard to the admission by the respondent and his witnesses that other people, in fact quite a number of people as disclosed by the evidence have land within the area of the land in dispute. How can the land in dispute which has no survey plan and not properly and accurately described from the features on the said land be identified on such contradictory and inadmissible evidence of the plaintiff and his witnesses.

Without going into further details, I think it suffices to say that the evidence led was not credible and not in line with the pleadings. Here again, the respondent and his witnesses who are of the same parents contradicted themselves as to the founder and were unable to lead evidence of up to the three hundred years contained in their amended statement of claim.

I therefore answer issues (i) and (ii) in favour of the appellant.

The issue of jurisdiction, that is issue (v) has happily been put to rest by the Supreme Court of Nigeria in the case of Adisa v. Ayinwola (2000) 10 NWLR (Pt.674) 116. I think the point must be emphasized that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial who saw, heard and assessed the witnesses. Where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own views for the views of the trial court. See Akinloye & Anor v. Eyiyiola & Ors. (1968) NMLR 92 at 95; Enang v. Adu (1981) 11-12 S.C. 25 at page 39; Woluchem v. Gudi (1981) 5 S.C. 291 at 320 etc.

What the Court of Appeal ought to do is to find out whether there is evidence on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court made its findings of facts, the appellate court cannot intervene. See Akpagbue v. Ogu (1976) 6. S.C. 63; Odofin v. Ayoola (1984) 11S.c. 72; Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) at page 280 etc. Where, however, the trial Judge failed to make a proper use of the opportunity of seeing, hearing and observing the witnesses at the trial or to exercise his discretion properly, or where the findings cannot be regarded as resulting from the evidence or where it was drawn from wrong conclusions to accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the court, the appellate court will be at liberty to intervene and to make the necessary findings from such evidence.

I am of the view that in this case there is no credible evidence to support the finding of the learned trial Judge.

In the result, I hold that the appeal has merits and it therefore succeeds. I set aside the judgment of the learned trial judge, Ajakaiye, A J, delivered on 4th July, 1994 and in its place, I substitute an order dismissing suit No. HOW/19/87. I award costs assessed at N5,000.00 in favour of the appellants against the respondent.

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Other Citations: (2001)LCN/1042(CA)