Mr. Michael Aiyeola V. Mrs. Ramota Yekini Pedro (2014)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on the 19th day of December, 2002 at which the Court below set aside the judgment delivered by the trial High Court per L A. Sotuminu J (as she then was) on the 23rd day of September, 1994.

FACTS:

The Respondent as plaintiff at the trial High Court of Lagos commenced an action against the Appellant as Defendant through a writ of summons and statement of claim dated the 20th day of February,1990 wherein she claimed as follows:-

(a) A declaration that the plaintiff is entitled to statutory right of Occupancy in respect of the piece of land and building thereon situate, lying at Igbede Road, Ajagbadi Elem Hause Village in Ojo Local government Area of Lagos State and which is more particularly described and delineated on the Survey Plan filed with the Statement of Claim.

(b) Order for possession of the said piece of land and building thereon.

(c)Perpetual Injunction restraining the Defendant, his servants or agents and any other persons purporting to claim under or through him from further committing acts or interfering with Plaintiff’s right and interest in or over the property in dispute.

Reacting to the Statement of claim, the Defendant filed a 20 paragraph Statement of Defence dated the 13th day of March, 1990 where he contended that the plaintiff’s claims are frivolous, vexatious, speculative and constituted an abuse of Court process and that same should be dismissed with cost.

At the trial, the Respondent testified for herself and called two witnesses, while the Appellant testified for himself and called one witness.

At the conclusion of trial and the final addresses of counsel to the respective parties, the learned trial judge dismissed the case of the plaintiff on the ground that the plaintiff failed to prove the claims.

The Plaintiff as Appellant appealed to the Court of Appeal being dissatisfied with the decision of the trial High Court. The Court of Appeal or Court below allowed the appeal and set aside the decision of the Court of trial. The Defendant/Respondent in the Court below has now appealed to this Court on a six ground of appeal which grounds would be recast here with the particulars thus:-

GROUNDS OF APPEAL:

GROUND 1:

The Court of Appeal erred in law and on the facts in allowing the Appeal when from the totality of the evidence on record the Respondent did not prove the identity of the land in dispute.

PARTICULARS:

(a) The evidence adduced in Court by the Respondent and her witnesses in proof of the identity and location of the land in dispute is contradictory, unreliable and is greatly at variance with her pleadings.

(b) The Survey Plan tendered by the Respondent was erroneously received and treated by both the Trial Court and Court of Appeal as Exhibit.

(c) The Surveyor who is the appropriate person to tender the Respondent’s Survey plan was not called in evidence by her.

(d) The mere tendering of the Survey plan by the Respondent is not sufficient proof of the identity of the land in dispute.

(e) The Respondent did not properly trace the boundaries of the land in dispute.

(f) The Respondent did not prove her root of title to ground her case.

GROUND 2:

The Court of Appeal erred in law and on the facts when it held that the failure of the other joint owners to give evidence in support of the case showed that Aliu Saliu dealt with the land in dispute as his personal property.

PARTICULARS:

(a) Alhaji Saliu, DW1, was the Accredited or Authorised Representative of Abu Family.

(b) Exhibit C, Land Agreement, was signed by DW1, Alhaji Aliu Saliu in favour of the Appellant as the

Authorised Representative of his family and other land owners.

(c) Exhibit C, was not signed by DW1, Alhaji Saliu in his personal capacity.

(d) The evidence adduced by the Appellant in support of his case is stronger and better than the evidence of the Respondent.

(e) The status or position of DW1, Alhaji Aliu Saliu as the Authorised/Accredited Representative of other land owners was not challenged in Lower Court.

GROUND 3:

The Court of Appeal erred in law and on the facts in not holding from the evidence on record that the Respondent has failed to prove her root of title.

PARTICULARS:

(a) It is clear from the record that the evidence adduced by the Respondent in support of proof of her case is contradictory and insufficient to support the granting of the reliefs sought by her.

(b) The Respondent did not properly establish her root of title to the land in dispute.

(c) The case put up by the Appellant against the Respondent in the Trial Court is stronger and sufficient to defeat the Respondent’s claim on the preponderance of evidence.

(d) There is no evidence in support of the inference drawn by the Court of Appeal that the Respondent has better title.

GROUND 4:

The Court of Appeal erred in law and on the facts in receiving or treating the Survey plan tendered by the Respondent as Exhibit and acted on it when it was clear from the record that the person who tendered it was not the maker.

PARTICULARS:

(a) The Surveyor who is the appropriate person to tender the Respondent’s Survey plan was not called in evidence by her.

(b) The Court of Appeal placed too much reliance and weight on the Respondent’s Survey plan in its judgment.

(c) The Appellant’s Survey plan was received as IDENTIFICATION.

(d) There was no cross examination of the Respondent on the Survey plan tendered by her.

GROUND 5:

The Court of Appeal erred in law and on the facts in not holding that the Respondent has not proved her

case to the standard required in law and thereby dismiss the appeal.

PARTICULARS:

(a) There were material contradictions in the evidence of the Respondent and her witnesses.

(b) Proper appraisal and evaluation were not given to the evidence adduced by both the Appellant and the Respondent by the Lower Court.

(c) The Respondent adduced very weak and unreliable evidence in support of her case.

(d) The Respondent adduced evidence which is at variance with her pleadings.

(e) The Respondent did not properly prove or establish her root of title.

(f) The identity of the land in dispute was not satisfactorily proved by the Respondent.

(g) The Survey plan tendered by the respondent was wrongly admitted as Exhibit by the Trial Court.

GROUND 6:

The Judgment is against the weight of evidence.

To have a fuller understanding of the background to this dispute on appeal, I shall recast the pleadings.

STATEMENT OF CLAIM:

1. The Plaintiff is a Trader residing at 40 Sopono Street, Lagos.
2. The Defendant resides at 7 Mokoya Street, Ajegunle, Lagos.
3. The property subject matter of this action is situated at IGBEDE ROAD, AJAGBADI in ILEMBA HAUSA VILLAGE of OJO LOCAL GOVERNMENT AREA of Lagos State.
4. Under and by virtue of a purchase receipt dated 3rd January 1978, the plaintiff became seised of the land subject matter of this action. The purchase receipt will be relied upon at the trial of this action.
5. The Plaintiff caused the land to be surveyed. The survey plan will be relied upon at the trial of this action.
6. Soon after the sale of the plaintiff’s (sic) vendor Alhaji Rafiu Johnson of 13 Kuforiji Street, Orile Iganmu put her in possession and has since remained in effective possession exercising thereon maximum acts of ownership by erecting a building thereon without let or hindrance from any one.
7. The Plaintiff commenced building operations in June 1978 and continued same till February 1999 when she suspended building operations due to financial constrain.
8. In January 1990, the plaintiff decided to continue building operations on the land in dispute.
9. On a visit to the premises, the plaintiff discovered to her dismay that the building had been completed by unknown persons and let out to tenants.
10. The Plaintiff caused notices to be pasted on the walls of the premises warning the occupiers to desist from the act of trespass.
11. The Plaintiff alerted her vendor about the trespass.
12. The Plaintiff’s vendor made enquiries from the family that sold the land to him about the unknown persons on the land in dispute.
13. The family confirmed selling the land in dispute to the Plaintiff’s vendor and expressed willingness to give evidence on behalf of the plaintiff in this action. The Plaintiff will rely on the evidence of the vendor and the original owners of the land.

14, As a result of the warning notices pasted on the land in dispute by the Plaintiff, the identity of the trespasser became known, His Solicitor wrote a letter confirming the occupation of the land in dispute by the defendant. The Plaintiff be (sic) founded upon on the trial.

15. The Plaintiff avers that between the time she purchased the land in dispute in January 1978 and throughout the time she carried on building operations she exercised maximum acts of ownership without let or hindrance from any person including the defendant.
16. If, which is not admitted, the defendant bought the piece of land from any one, the defendant raised no objection to the building operations being carried on by the plaintiff. The plaintiff therefore relies on LACHES and ACQUIESCENCE.
17. The Plaintiff avers that the defendant is in occupation of the property without her licence consent.
18. WHEREOF the plaintiff claims as per the Writ of Summons.

For the Defendant was put forward the following paragraphs of his Statement of Defence as follows:-

STATEMENT OF DEFENCE:

SAVE and EXCEPT as are herein expressly admitted the Defendant denies each and every allegation of fact contained in the Plaintiff’s Statement of Claim as if each were set out seriatim and specifically traversed.

1) The defendant admits only paragraph 2, and categorically denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Plaintiffs Statement of Claim and put him to the strict proof thereof.

2) The Defendant is not in position to admit or deny paragraph 1 of the Statement of Claim.

3) In answer to paragraph 3 of the Statement of Claim, the Defendant says that the property in dispute is situate at Maxwell Street, Elem Hausa Village, in Ojo Local Government Area of Lagos State of Nigeria.

4) The land in dispute forms a portion of a vast area of land occupied by Abu Family from time immemorial and upon which it had been exercising maximum acts of Ownership without let or hindrance from any quarters.

5) The Defendant says that in May 1976, he negotiated for the lease of the land in dispute from the Head of Abu Family Chief Alhaii Aliu Saliu.

6) The Defendant says that the land in dispute was leased to him for 99 years by the Abu Family of Elem 1976 at an annual rent of One Hundred Naira (N100.00) as evidenced by the Family receipt dated 23rd of May,1976 issued in favour of the Defendant. The Defendant shall rely on the said receipt at the hearing of this action.

7) The Defendant says that he was put into immediate possession of the land leased to him and has since remained in peaceful possession of the land exercising all maximum acts of Ownership without let or hindrance from any quarters.

8) The Defendant further says that he immediately cleared the trees and weeds on the land leased to him and started reclaiming it being a swampy area.

9) The Defendant further says that he later caused the land to be surveyed in 1977. The Defendant shall rely on the said survey plan at the hearing of this action.

10) The Defendant says that after the land had been reclaimed, he left it for some time and commenced farming on it in 1990 planting various crops like Cassavas, Okoro, Tomatoes, etc and Vegetables thereon.

11) In February 1988, the foundation of the house was laid and the Head of Abu Family was invited to offer prayers on that occasion for blessing and long life to the Defendant.

12) That the building operation of the house then followed and in September 1989, the house consisting of twelve rooms was completed and in October 1989, the rooms were given to tenants for residential purposes.

13) The Defendant said that in January 1990, the Plaintiff went to his said house with thugs and wild-looking men and threatened them with ejection by force on the ground that the house they occupy is her property.

14) One of the Tenants named Fidelis came to inform me that a letter was pasted on the building but that he did not know the nature of the letter and the person who pasted it.

15) I went to my house immediately and on arrival, I found a letter dated 24th January 1990 pasted on the wall of the house addressed to the unknown person by the Plaintiff’s Solicitor.

16) I quickly took the said letter to my Solicitor with instruction to reply on the same and warn the plaintiff against further acts of molestation and harassment of my tenants and also to commence appropriate Court action if she feels convinced that she has a good case against me. The Defendant will rely on the two letters at the hearing of this case.

(17) The Defendant says that he has made the necessary enquiry from his lessors about Alhaji Rafiu Johnson referred to by the Plaintiff as her Vendor in paragraph 6 of her Statement of Claim and he was told that the Alhaji did not have any connection with the land in dispute in one way or the other.

18) The Defendant will contend at the hearing of this action that neither the Plaintiff nor her so called Vendor has valid title or interest in the land in dispute but that she resorts to blackmail in order to reap from where she did not sow.

19) The Defendant will also contend at the hearing of this action that there was no time the plaintiff was put in possession of the land in dispute by anybody at all let alone carrying out any survey work or any building operation thereon.

20) The Defendant will contend at the hearing of this action that the Plaintiff’s claim is frivolous, vexatious, speculative and constitutes an abuse of Court process and that the same should be dismissed with substantial cost.

On the 25th day of February 2014, date of hearing learned counsel for the Appellant, Chief Taiwo Ajala adopted their Brief of argument settled by him and filed on the 27/9/12. In the Brief were formulated six issues for determination which are as follows:-

The Appellant respectfully says that six issues are set down for determination in this appeal:-

(1) Whether the respondent clearly and precisely ascertained or identified the land being claimed by her. – Ground 1.

(2) Whether the Court of Appeal made a case for the Respondent different from the case- put forward by her at the trial Court’ – Ground 2.

(3) Whether the Respondent properly established her root of title to the land in dispute. – Ground 3

(4) Whether the Court of Appeal was right in using Exhibit ‘B’ the Respondent’s Survey Plan solely to resolve the issue of identity of the land in dispute. – Ground 4.

(5) Whether there are material contradictions in the evidence of the respondents. – Ground 5.

(6) Whether the Respondent proved her case to the standard required by law.

Mr. M. N. O. Olopade, learned counsel for the Respondent adopted their Brief of Argument settled by Chief Wale Taiwo and filed on 8/10/12. He adopted issues 1, 2, 3 and 5 as raised by the Appellant as appropriate for the determination of the appeal.

It seems to me that issues 1, 4 and 6 as crafted by the Appellant are good enough to settle the nagging questions in this appeal. I shall therefore use those issues, though 1 and 4 being related would be taken together.

ISSUES 1 & 4:

These pose the question as to whether Respondent clearly ascertained the identity of the land in dispute and if the Court of Appeal was right to use the Survey Plan, Exhibit ‘E’ solely to resolve the issue of the identity of the land.

Learned counsel for the Appellant, Chief Ajala contended that the Court below acted incorrectly when it held that the identity of the disputed piece of land was clearly established by both parties and there was no doubt as to the identity of the said land. That there is no evidence on record that the land at Igbede Road, Ajagbadi is the same as the land at Maxwell Street, Ajagbadi or that one of the names is the same with the other name for the other. That the Court below misdirected itself on the identity of the land and by so doing put up a case different from the case put forward by the Respondent at the trial court thus calling for the interference of the finding of the Court below. He cited Obueke v Nnamchi (2012) 12 NWLR (Pt.1314) 327 at 349

For the Appellant was further submitted that the evidence of PW1 and PW2 and the Respondent herself was greatly at variance with the Respondent’s pleadings and so the Court below should have held. He cited Orunengimo v. Egebe (2007) 15 NWLR (Pt.1058) 630 at 644; Njoku v Eke (1973) 5 SC 293; Egegokwe v. Okadigbo (1973) 4 SC.113 at 177 etc.

Responding, learned counsel for the Respondent contended that it is trite that in a claim for declaration of title to land, the Plaintiff must produce sufficient evidence to ascertain the definite and precise boundary of the land claimed in order to be entitled to the grant. He referred to Emiri v Imieveh (1999) 4 NWLR (Pt.599) 442 at 463; Arabe v Asanlu (1980) 5 – 7 SC 78; Okedare v. Adebara (1994) 6 NWLR (Pt.349) 157.

That the identity of the land in dispute was clearly established by the Respondent by Exhibit ‘B’, the Survey Plan showing the disputed land which Exhibit ‘B’ was admitted without objection by the Appellant.

Mr. Olopade of counsel contended that from the pleadings of parties as well as the evidence of all the witnesses, there is absolutelv no doubt as to the identity of the land in dispute which identity was known to both Appellant and the Respondent. He referred to the case of Ifeadi v Atedze (1998) 13 NWLR (Pt.581) 231. The position as canvassed by the Appellant in the main in these issues 1 and 4 is that the appeal should be allowed and the judgment of the trial Court restored. This is because the Appellant is of the view that from the pleadings settled by the parties and the evidence led by them, that the Respondent did not prove the identity of the land she claims. That the court below by holding that the identity of the land was not shrouded in mystery or not ascertainable was a decision which interfered wrongly with the findings of the Court of trial which was the correct position. As a follow up, the appellant contends that what the Court of Appeal did was setting up a case different from what the Respondent had brought to the Court of trial.

The appellant’s stance was resisted by the respondent who felt she was on firm ground in that she discharged the burden placed on her by law to prove her root of title in one of the five ways recognised under our legal system. Also, that in her evidence was Exhibit ‘A’, the purchase receipt issued to her by her predecessor-in-title and she had traced her root of title to the original owners of the land, the Abu family. That it cannot be said the land in dispute is not identified by the tendering Exhibit ‘B’, the Survey Plan which was admitted without any objection while Appellant had not tendered any Survey Plan of theirs.

On the matter of whether or not the identity of the land in dispute was clear and not doubtful, it needs be said that in a claim for declaration of title to land, the plaintiff must produce sufficient evidence to ascertain the certainty or definiteness of the exact boundary of the land claimed to be entitled to the grant. In this regard are pointers on how to go about the issue of the definite identity of the land subject of the dispute.

Where a party is claiming a declaration of title to land fails to establish his claim to some part of the land that should not result in the dismissal of his claim to the other part of the land. Furthermore, where a claimant lays claim to a large parcel of land but succeeds in proving the boundaries and title to a smaller parcel of the land, he is entitled to a declaration of title in respect of the smaller part of the land originally in dispute which he had proved with certainty.

This for the simple reason that a court may grant less but not more than the land in dispute. Okedare v Adebara (1994) 6 NWLR (Pt.349) 157 at 173 – 174 SC; Imah v. Okebe (1993) 9 NWLR (Pt.316) 159; Sosunle v Akerele (1967) NMLR 58; Arabe v Asanlu (1980) 5 – 7 SC 78 at 85- 87; Arabe v Asanlu (1980) NSCC 213 at 218 per Bello JSC (as he then was), is a guide and he stated thus:-

“It appears from the judgment of the trial Court that the part of the land granted to either party cannot be ascertained with reasonable certainty. Inspite of their commendable effort to determine and identify the part either party is entitled to, the judgment of the judges of the trial Court does not show definite and precise boundary of either part of the land awarded to the parties. It follows therefore that judgment cannot stand. Accordingly, the Court of Appeal ……. acted rightly in setting aside the judgments of the Lower Court on the simple ground that the area granted to either party is indefinite and unascertainable.”

The Onus of proof lies on the plaintiff who seeks a declaration of title to land and or an injunction to establish with certainty and precision and without inconsistency the area of land to which lies claim relates. The point clearly emphasised is that a declaration to title to land can only be granted in respect of land which has definite precise and accurate boundaries. Therefore a way to discharge the onus of proving the identity of the land in dispute by such description of the land that any surveyor acting on such description could produce an accurate plan of the land in dispute. Thus, the acid test over the years is whether a surveyor, taking the record, could produce a plan showing accurately the land to which title has been given. Another way and I dare say a better and more reliable way of establishing the identity and precise extent of a piece or parcel of land in dispute is by filing an accurate Survey plan which reflects all the features on such land and showing clearly the boundaries thereof. He cited Okedare v Adebara (1994) 6 NWLR (Pt.349) 157 at 180; 185 – 187; Baruwa v Osunsola (1938) 4 WACA 159; Ezeokeke v Uga (1962) 2 SCNLR 197; Arabe v Asanlu (1930) 5 – 7 SC 78; Kwadzo v. Adjei (1944) 10 WACA 274; Makanjuola v. Balogun (1999) 3 NWLR (Pt.108) 192; Olusanmi v Oshasona (1992) 6 NWLR (Pt.245) 22 at 29.

The Respondent as plaintiff had averred in her Statement of Claim in reference to the site of the land in dispute as follows:-

“The property subject matter of this action is situated at IGBEDE ROAD, AJANGBADI in ELEM HAUSA VIILAGE OF Ojo Local Government Area of Lagos State.”

In her evidence in Chief, She stated thus:

“The Defendant trespassed on my land at Ajagbadi along Badagry. I bought the land from one Rafiu Johnson, the 1st witness.”

PW1, Alhaji Rafiu Johnson, the Respondent’s predecessor in-title testified as follows:

“Some time ago, I sold a piece of land plaintiff. It is a plot of land measuring 50 x 120. The land is at Maxwell Street at Elem Hausa Village at Ojo Opposite Ojo-Alab.”

On his part, the Appellant as defendant pleaded in his Statement of Defence thus:-

“In answer to paragraph 3 of the Statement of Claim, the Defendant says that the property in dispute is situated at Maxwell Street, Elem Hausa in Ojo Local Government Area of Lagos State of Nigeria.,,

In Court testifying in his own defence the Appellant stated as follows:-

“The Plaintiff sued me for possession of an uncompleted house at Maxwell Street, Elem Hausa in Ojo Local Government Area of Lagos Street,”

The stance of the Appellant is that the exact name of the land was not so stated as between the plaintiff and his witness vis-a-vis the pleadings and so the Court of Appeal should not have held that there was no difficulty in identifying the land in question, claimed by either party. The Court of Appeal had held thus:

“I do not have difficulty in coming to the conclusion that the identity of the land in dispute was clearly established by both parties. There is no doubt as to the identity of the land in dispute. It was clearly identified and ascertained.”

It is to be noted bearing the submissions either way in mind and not losing sight of the facts on ground inclusive of the pleadings, evidence and the evaluation put up by the Court of Appeal that when the identity of the land is certain, the name given to any particular piece of land is of no moment and of little assistance or value in ascertaining the precise boundaries or features of the land. I place reliance on Ifeadi v Atedze (1998) 13 NWLR (Pt.581) 231.

There is no law or practice which establishes that a plan is a sine qua non in a claim for declaration of title to land. But there must be some clear description to make a disputed land ascertainable. Thus, where there is no difficulty in identifying the extent of the land in dispute or the parties have agreed that an identifiable piece of land is in dispute between them, even if they refer to that land by different names, a declaration of title to land can be made without a plan thereof. Therefore, in a claim for declaration title, once there are 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 a survey plan. Emiri v. Imieyeh (1999) 4 NWLR (Pt.599) 442 at 463 & 455 per Kalgo JSC; Eletiko v Aroyewuni (1959) SCNLR 308; Ibuluye v. Dikko (1978) 6 SC 97, Akinhanmi v Daniel (1977) 6 SC 125; Rotimi v. Macregor (1974) 1 All NLR (Pt.11) 325: Ezeudu v. Obiagwu (1986) NWLR (Pt.21) 208.

However, even without the Survey Plan, Exhibit ‘B’ tendered and admitted by Respondent without objection from the Appellant, the identity of the land in issue was properly established and it is indeed funny that the Appellant would be at this late hour contesting the identity of the land which from his pleadings and the evidence he proffered had been made known.

The Appellant had put forward a point that the Court of Appeal had put up a case different from that initiated by the plaintiff and defendant by the other side. The Appellant took this position in that the Court below had held that with the head of familv, Aliu Saliu the only witness of the Appellant had testified that he gave the lease to the Appellant and so since no other member of the family testified in support of that lease, it meant the said Aliu Saliu dealt with the land in dispute as his personal property. This view from evaluation of the Court of Appeal was seen by the Appellant as an interference by that Court and a supplanting of the case of the parties by a suo motu arrangement by the Court of Appeal.

When a plaintiff in a land case relied on and proves a conveyance as his root of title, he does not need to go beyond his vendor and then proceed to prove that vendor’s title as well. Unless the vendor’s title has become an issue in the case, parties to a land case which titles are rooted in Deeds of Conveyance need not plead or prove the title of their vendors. Dosunmu v. Joto (1987) 2 NSCC 1182 SC.

The attitude of the Court of Appeal or the Supreme Court as the case may be, in respect of evaluation of evidence of a trial court is that in deciding whether or not a trial court properly evaluated the evidence, the essential focus should be on whether the trial court made proper findings and reached the correct judgment upon facts before it. It is not the method or approach that necessarily determines this. Thus, so long as a trial court does not arrive at its judgment merely by considering the case of one party before considering the case of the other, its judgment if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case it may have adopted. Aiibulu v Ajayi (2004) 11 NWLR (Pt.885) 458; Woluchem v. Gudi (1981) 5 SC 291.

It is essential to the validity of sale of family land that the head of family must join in the conveyance and the principal members of the family must consent to the transaction. Such a combination of parties to the conveyance of family land by the head of family and the principal members of the family is unimpeachable. Any sale or disposition purporting to transfer family land without these essential customary elements is void abi initio. Fayehun v Fadeju (2000) 6 NWLR (Pt.661) 390 at 404, 405.

A sale of family land by the head of family is only voidable where it is made without the concurrence of principal members of the family. Such a sale is not void ab initio but merely voidable and the family can set aside such a sale if the other members act timeously. Fayehun v Fadoju (2000) 6 NWLR (Pt.661) 390 SC; Ekpendu v Erika (1959) SCNLR 186); City Property Dev, Ltd v A. G. Lagos State (1976) 1 SC 71; Solomon v Mogaji (1982) 11 SC 1; Lukan v. Osunsusi (1972) 5 SC 40; Adedibu v Makanjuola 10 WACA 33.

It is no longer a matter for debate on the fact that a court does not make declarations of title either on mere admission in pleadings or in default of defence without hearing appropriate evidence and being satisfied with such evidence. It is for that reason that the party laying claims satisfy the court by evidence and not by an admission in the pleadings of the defendant supporting this entitlement to the declaration sought. The fact is not lost in mind that the court still has a discretion of granting or not granting the declaration, however, the success of such a claimant in action depends entirely on the strength of his own case and not on the chance thing of the weakness of the defence. Okedare v. Adebara (1994) 6 NWLR (Pt.349) 157; Bello v. Eweka (1981) 15C 101; Motunwase v. Sorungbe (1988) 4 NWLR (Pt.92) 90; Kodilinye v. Odu (1935) 2 WACA 336.

The discomfort of the Appellant on the view taken by the Court of Appeal in making its summation is not supported since that view is not outside the law. This is in the light of Section 73 of the Evidence Act which stipulates thus: “No fact of which the court must take judicial notice need be proved.”

Therefore, the Court of Appeal cannot be criticize when it had put before it and at the trial court, the evidence of the head of family, Aliu Saliu who stated that he organised the lease in favour of the Appellant on behalf of his family. There was nothing else in support of the consent of the family having been obtained or that the transaction was that of the Appellant and the family. Also no member of the family was called to testify in support or to buttress that of the DW1, Aliu Saliu, therefore nothing held back the hand of the Court from making its conclusion based on what was before it. If the Appellant in pleading being put on the land by the family, then it is not enough for just the evidence of DW1 to be taken as sufficient to invest the Appellant with title to family land. This is because pleading is not synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a case. Thus a party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleadings and where there is none, then the averments in his pleading are deemed abandoned. The same principle of law goes for whatever defence a defendant seeks to rely on in the process of demolishing the case against him. Arabambi v Advance beverages Ind. Ltd (2005) 19 NWLR (Pt.959) 1 at 28; Emegokwue v Okadigbo (1973) NMLR 192; Adimora v Ajufo (1988) 3 NWLR (Pt.80) 1; Olorunfemi v Asho (2000) 2 NWLR (Pt.642)143.

From the foregoing, it is clear that the resolution of the questions in the issues under discourse cannot be other than against the Appellant and in favour of the Respondent.

ISSUE NO.6:

Whether the Respondent proved her case to the standard required by law.

Learned counsel for the Appellant submitted that from its findings on the identity of the disputed land, the Court below made a case for the Respondent different from the case put forward by her at the trial Court when the Court below referred to the testimony of Aliu Saliu, the only witness of the Respondent as head of Abu family and the Baale of the Village. Also that the Court below went outside the case of the parties in going into the other joint owners not giving evidence on ratifying the lease to the Respondent. That it is not proper for a court to give a decision on a point not argued before it, He referred to N. B. C, v Integrated Gas (Nig) Ltd (2005) 4 NWLR (Pt.916) 617 at 544; Anyaduba v. N.R.T.C. Ltd (1992) 5 NWLR (Pt.243) 535; Adeosun v Babalola (1972) 5 SC 292.

For the Appellant was also stated that where as in this case for declaration of title the line of succession has gaps and mysterious linkages or nexus which are not established, such a line of action should be rejected. He cited Ukaegbu v Nwololo (2009) 3 NWLR (Pt.1127) 194 at 220 – 221; Dim v Enemuo (2009) 10 NWLR (Pt.1149) 353 at 378; Magaji v. Cadbury Nigeria Ltd (1935) 2 NWLR (Pt.7) 393.

Chief Ajala of counsel for the Appellant said the Court of Appeal failed to avert its mind to the established principle of law that a declaratory judgment is discretionary and can only be exercised in favour of a Plaintiff on the strength of his case and not on the weakness of the Defendant’s case. He relied on Momoh v Umoru (2011) 15 NWLR (Pt.1270) 217 at 247 – 248; Awomotu v Salami (1978) 3 SC 105 at 115.

That it is trite law that the onus is on a plaintiff seeking declaration of title to prove his case and a defendant is under no duty to prove anything unless where the onus shifts to him. He cited Beniginus Duru & Anor v Jonathan Nwosu (1989) NWLR (Pt.113) 24.

Chief Ajala of counsel said that the failure of the trial court to highlight the material contradiction in the respondent’s case in its judgment is inconsequential and should not have led to reversal of the judgment since the trial court correctly and properly considered the respondent’s case before making her decision that there was approbation and reprobation in the evidence of the respondent and failure by the trial court in the judgment to highlight them did not affect its decision and the Court of Appeal was in error when it failed to discover and give proper consideration to them. He cited Alero Jadesinmi v Okotie-Eboh & Ors (1989) 4 NWLR (Pt.113) 115.

It was further submitted for the Appellant that the trial Court duly complied with the law in its evaluation and consideration of the evidence led by both the Appellant and the Respondent in the matter and that the Court of Appeal acted incorrectly when it reversed what the trial Court did. He cited Mogaji v Odofin (1978) 4 SC 91 at 93.

In response, learned counsel for the Respondent submitted that the judgment of the Court of Appeal was based on what was before Court and it is not correct that the Court below went outside what was in the record. That DW1, Aliu Saliu testified and identified himself as head of the family and Baale of the Village and that the Respondent had been given a receipt which he signed as head of the family and that he was put into possession by him, DW1. That the Courts are enjoined to take judicial notice of all laws for the time being in force. He cited Section 74 (1) (a) of the Evidence Act. That it is therefore not correct to say the Court of Appeal made a case for the parties or went outside the case as put forward by the Respondent at the trial. He referred to Fayehun v Fadoju (2000) 6 NWLR (Pt. 661) 404; Akerele v Atunrase (1969) 1 All NLR 201; Esan v. Faro (1947) 12 WACA 135; Arabambi v Advance beverages Ltd (2005) 19 NWLR (Pt.959) 1 etc.

Mr. Olopade for the Respondent submitted that the Respondent sufficiently discharged this burden by establishing to the satisfaction of Court her root of title not only by the production of document of title in Exhibit ‘A’ but also by tracing her root of title to the Abu family of whom Alhaji Aliu Saliu was the head and who duly issued the receipt to the Respondent’s predecessor-in-title. He cited Ajibulu v Ajayi (2004) 11 NWLR (Pt.885) 473 – 474; Dosunmu v Joto (1987) 4 NWLR (Pt.297).

That there were no contradiction in the evidence of Respondent and her witnesses and nothing affecting the credibility of the witnesses. He cited Esansbedo v State (1989) 7 SC (Pt.1) 36 at 43 – 44.

I cannot resist going back to reiterate the five recognised ways in proving title when there is a land suit and two contesting parties.

These are well stated in the case of Idundun v. Okwunasba (1976) 9 – 10 SC (Reprint) 140 which is now the locus classicus on the point.

These methods or ways are thus:-

a. By traditional history or evidence; or

b. By documents of title; or

c. By various acts of ownership numerous and positive, and extending over a length of time as to warrant the ownership; or

d. By acts of long enjoyment and possession of the land; and

e. By proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would in addition be the owners of the land in dispute.

The practice in declaration of title or a dispute to such declaration is constance and the law is that a party claiming title to land must show that he acquired his title in any one of the five ways or methods above stated. See Ojoh v Kamalv & Ors (2005) 2 SC (Pt.11) 1 at 24; Ajibulu v Ajayi (2004) 11 NWLR (Pt.885) 473 – 474.

In testifying, Respondent as Plaintiff at the trial Court she stated that she bought the land from one Rafiu Johnson the 1st witness on the 3rd day of January 1978 and tendered the receipt issued to her as Exhibit ‘A’. The said Alhaii Rafiu Johnson testified as PW1 and stated thus:-

“I had two Plots of land and I sold one to the Plaintiff. The two plots are together. Plaintiff paid ‘80700 i.e N1,400.00 in January 1978 i.e 3rd January, 1978. I gave her a receipt. This is the purchase receipt.”

It is the duty of a plaintiff claiming title to land to show how he or his predecessor-in-title acquired title in one of the five ways or methods recognised in proving title to land. Ajibulu v Ajayi (2004) NWLR (Pt.885) 458 at 473 – 474; Ogunleye v Oni (1990) 2 NWLR (Pt.135) 745; Piaro v Tenalo (1976) 12 SC 31; Ige v Fagbohmu (2001) 10 NWLR (Pt.721) 468.

Where a party has satisfied the court as to his title to land in dispute, the court need not inquire into the title of his predecessor-in-title. The party does not need to prove the title of his vendor or except where it has become an issue. Ajibulu v Ajayi (2004) 11 NWLR (Pt.885) 458 at 474; Dosunmu v Joto (1987) 4 NWLR (Pt.65) 297.

On appeal, there are rules of practice and one of the cardinal rules is that an appellate court should not re-open issues of fact unless there is a strong basis for that, such as where the fact supposedly laid to rest is shown to be perverse, illegal or not a proper exercise of judicial discretion. Also a party who was victorious at the Lower Court ought not to normally be confronted with a new case on appeal simply because his adversary decided to bring forward his case in trickles or piece by piece and at his fancy.

This is because a case on appeal is not new, the foundation is and remains the writ of summons and claim from the court of first instance, while what is on appeal is a mere continuation sheet. See Esangbedo v The State (1989) 3 NSCC 23.

When the issue as in this case is which of two claimants has a better right of possession to and/or occupation of a piece or parcel of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title thereto. Ajibulu v. Ajayi (2004) 11 NWLR (Pt.885) 458 at 475 per Adekeye JCA (as she then was), Fasoro v Beyioku (1988) 2 NWLR (Pt.76) 263; Aromire v. Awoyemi (1972) l All NLR (Pt.1) 10 NWLR (Pt.721) 468; Olohunde v. Adeyeju (2000) 10 NWLR (Pt.676) 562.

On who has established a better title, the Appellant holds the view that the Court of Appeal was not right to have stated that the Respondent had not established her title after the failure to call Iya Igbede as witness since she sold the land to Respondent’s predecessor-in-title.

That assertion is not within the requirement of the law since the Respondent was able to call her predecessor-in-title to testify on her behalf and with the receipt, Exhibit ‘A’ in tow and so being satisfied there was no necessity for the predecessor-in-title to call his own predecessor-in-chief or vendor. I place reliance on Dosunmu v. Joto (1987) 4 NWLR (Pt.65) 297.

On the contradictions raised by the Appellant as sufficient to change the course of the matter, the Court of Appeal held thus:-

“I do not see any contradictions in the evidence of these witnesses. It is not enough for the trial Court to say that there are contradictions in the testimonies of witnesses. It must show clearly in the judgment what these contradictions are. The learned trial judge should not have treated the evidence of the plaintiff in isolation. He must balance the evidence called in support of the Plaintiff’s case with that of the Defendant.”

The stance of the Appellant is anchored on their point of view that there was approbation and reprobation in the evidence of the respondent and though the trial court failed to highlight them in the judgment, in reaching its decision, the Court of Appeal should have discovered those contradictions and given proper consideration to them. Learned counsel for the Appellant cited Jadesinmi v Okotie-Eboh & Ors (1989) 4 NWLR (Pt.113) at 115.

This errand which learned counsel for the Appellant had sent the Court of Appeal and since that court did not comply, it is for this court to do so. I am at a loss to find the heading under which this message of the appellant for the Court to embark on a voyage of discovery is as I cannot fathom it. The implication is that if there were contradictions and the trial court failed to highlight them, it means they were not material or visible. That having happened, it is not for the Court of Appeal or this one to first acquire a microscope or binoculars to be able to set on the mission of the discovery of the contradictions spoken of and go further to ascertain their materiality. Until the court is satisfied it has the obligation or duty to do what the appellant posits as correct then, what is before court is what it would utilise, no more no less. For emphasis, it would need be said that this Court or others have held ad infinitum that it is not every contradiction in evidence that would affect the credibility or testimonies of the witnesses. This is so because for testimonies to be affected, I dare say adversely, the contradictions must be substantial or weighty and material. Therefore it is not every contradiction however minute that would suffice. I rely on Esangbedo v The State (1989) 7 SC (Pt.1) 36 at 43 – 44.

From the above clearly, the Court of Appeal was on solid ground in its appraisal and evaluation of what was before it and so I resolve this issue against the Appellant. All the issues resolved against the Appellant, I do not hesitate in holding that the appeal lacks merit, and so I dismiss it. I affirm the judgment and orders made by the Court of Appeal.

I award N100,000.00 costs to the Respondent to be paid by the Appellant.

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SC.102/2004