Olalekan Ogunsanwo V. Mukaila Oguntade (2007)
LawGlobal-Hub Lead Judgment Report
CHINWE EUGENIA IYIZOBA, J.C.A.
This is an Appeal against the judgment of the High Court of Ogun State Ilaro Judicial Division in Suit No. HCL/18/2002 delivered by Onafowokan J on 17/02/2011 granting all the claims of the Respondent.
The Respondent’s claim against the Appellant and originally five others as contained in paragraph 30 of his 3rd Amended Statement of Claim and plan dated 9th June, 2006 at page 23 of the Record of appeal is for:
(a) Declaration that the plaintiff is entitled to the Customary Right of Occupancy in respect of all that farmland situate at Ishaga Area in Owode, Ogun State.
(b) The sum of N5, 000.00 only as damages for trespass.
(c) Perpetual injunction restraining the defendants, their agents or privies from further trespass unto the land.
?Pleadings were filed and exchanged by the parties. The case was contested on the plaintiff’s 3rd Amended Statement of Claim and plan dated 9th June, 2006 and filed 3rd November, 2008 (the survey plan is Exhibit D), the Statement of defence of the 1st, 2nd, 3rd and 6th defendants
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dated 28th September, 2004 and filed on 29th September, 2004 and Reply to Defence dated 6th December, 2004 and filed on 13th December, 2004.
?The case of the Respondent from his pleadings is that the land in dispute described in his survey plan Exhibit D is a portion of a large expanse of land which originally belonged to one Oteniya a native of Ajilete who first settled on the land. Oteniya had two children Jagundina and Alarotan. Oteniya had a worker named Akinleye who dwelled in his house. It was alleged that Akinleye put Alarotan in the family way and fled with her to Ado-Odo where Alarotan delivered a baby boy called Oguntade. When Oteniya heard the news, he demanded that Akinleye and Alarotan return to him. Upon their return, Oteniya gave his farm land at Oke-Ogbon forest to Alarotan and she and her husband went and settled on the land, built their house there and also invited their friends Lediju, Odunbunu, and Adesiyan from Ado-Odo to come and farm on the land which later became known as Ago-Ishaga. The Plaintiff?s case is that the land in dispute is a portion of the land given by Oteniya to his daughter Alarotan which her son
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Oguntade and his siblings inherited. In other words, the Respondent?s case is that the land did not belong to his ancestor Akinleye; but to Oguntade by inheritance through his mother, Alarotan.
The Appellant?s case on the other hand is that the land in dispute is a portion of land founded and settled upon by Akinleye from time immemorial and that before Akinleye died he shared his land amongst his children on Idi-Igi basis; that the land in dispute is a portion of land shared to his great grandmother?s Idi-Igi. The Appellant is therefore laying claims on the disputed land as a descendant of Akinleye but the Respondent alleged that the Appellant is not even a descendant of Akinleye.
At the trial the Respondent testified as PW4 and called three other witnesses. The four witnesses adopted their Statement on Oath which operate as their evidence in chief as Exhibits A, B, C and E. The Respondent also tendered two documents at the trial which were admitted in evidence as Exhibits D and F. Exhibit D is survey plan No. LAL/D026/2003 dated 22/6/03 while Exhibit F is the document allegedly used in collecting
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rent. The Appellant called eight witnesses who also adopted their Statement on Oath as their evidence in chief and were admitted as Exhibits G, H, J, K, L, M, N and P. The Appellant also tendered in evidence two agreements as Exhibits Q and R. The learned trial judge in its evaluation of the evidence led found the traditional history of the Respondent more credible and that of the Appellant materially contradictory. Judgment was entered for the Respondent as per his claims.
Dissatisfied with the judgment, the Appellant appealed by a Notice of Appeal dated and filed 28/04/11 at page 146 of the Record. Out of the five grounds of appeal in the Notice of Appeal, learned counsel for the Appellant in the Appellant?s Amended brief of argument dated 17/03/17, filed on 20/03/17 but deemed on 27/04/17 formulated three issues as follows:
1. Whether the learned trial judge was right when he held that the Respondent possesses the locus standi to institute this action having regard to the circumstances of this case. (Ground 1).
2. Whether the failure and/or omission of the learned trial judge to resolve the issue of paternity of
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Teju in respect of which issues were joined by the parties occasioned a miscarriage of justice in this case. (Ground 4).
3. Whether the learned trial judge was right to have rejected the traditional history of the Appellant simply because it was not tied to a survey plan and to uphold the traditional history of the Respondent having regard to the circumstances of this case. (Grounds 2 and 3).
Learned counsel for the Respondent in the Respondent?s brief of argument dated and filed on 25/05/17 also formulated three issues as follows:
(i) Whether the lower Court was right when it did not apply the decision in Kojo v Bonsie (1951) 1 WLR 1223 to the instant case, where the evidence of traditional history adduced by the Appellant before the lower Court is contradictory, in connection with or in relation to the land in dispute, as per Exhibits D and Q respectively. (Grounds 2 and 3)
(ii) Whether the respondent has the locus standi, to sue in the circumstances of this case. (Ground 1)
(iii) Whether rightly or wrongly the issue of paternity of Teju was decided by the trial Court at
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all. (Ground 4)
I shall adopt the Appellant?s issues in the determination of this appeal.
ISSUE 1.
Whether the learned trial judge was right when he held that the Respondent possesses the locus standi to institute this action having regard to the circumstances of this case. (Ground 1).
Learned counsel for the Appellant in arguing this issue, quoted parts of the judgment of the learned trial judge, certain paragraphs of the 3rd Amended Statement of Claim and the reliefs claimed and submitted that since the Respondent instituted the action on behalf of Oguntade family and claimed a declaration of title to the Customary Rights of occupancy in respect of the entire farmland situate at Ishaga which had been partitioned; the lower Court ought to have terminated this suit for lack of locus standi. Counsel submitted that the Respondent had claimed a Declaratory Order with respect to the entire land of Oguntade which he referred to as the land in dispute and also referred to the portion verged green in Exhibit D allegedly trespassed upon by the Appellant and others as the land now in dispute; but in paragraph 30 of
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his 3rd amended statement of claim, he claimed the entire land of Oguntade and not a portion of it verged Green. Counsel submitted that the Court is bound by the relief claimed and cannot make a case for a party. He argued that the Court cannot dissect or attempt a surgical operation of a party’s case in an attempt to save an incurably defective suit. He submitted that since the Respondent amended his statement of claim three times and did not amend the reliefs claimed, the Court not being a Father Christmas cannot amend it or grant relief not claimed. Counsel called in aid the case of ADENUGA VS ODUMERU (2001) FWLR (PT.37) 1058 AT 1068 F-G. Counsel submitted that in the circumstances and in the proper con of the relief claimed the Respondent lacked the locus standi to institute the present suit and urged us to so hold.
?In reply to the above argument, learned counsel for the Respondent submitted that the original plaintiff in the suit Chief Basiru Oguntade had the locus standi and the necessary competence to sue and be sued. Counsel submitted that the 3rd Amended Statement of Claim and plan show that the Respondent as an aggrieved party instituted
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this action for himself and on behalf of Oguntade family of Ago-Ishaga (paragraph 1 of the claim) in respect of an act of trespass committed on the family land, by the six defendants on record. He argued that the survey plan of the land in dispute was admitted without any objection by the defence as Exhibit D. He submitted that the survey plan was pleaded in paragraph 30 (a) of the 3rd amended statement of claim and in particular paragraph 30 (e) which clearly shows the area trespassed upon by the defendants verged green measuring 11.506 hectares and the cause of action in this case. Counsel quoted paragraphs of the 3rd amended statement of claim which were duly adopted at the trial to support the argument that his rights were infringed upon. He argued that it is the duty of a Court of law to protect such civil rights and obligations of a citizen once he shows that such rights and obligations have been infringed on or in danger of being infringed. He relied on TAIWO V ADEGBORO (2011) 11 NWLR 563 SC AT 579 -580. Learned counsel submitted that the area verged RED in Exhibit D is the land of the larger Oguntade family; that Oguntade begat Yesufu Akinola who begat
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Basiru Oguntade the father of the present Respondent on record; that the area verged GREEN and cause of action is the portion of Basiru Oguntade upon partition which invariably creates a new family ownership of the area verged GREEN in favour of the respondent in this appeal. Counsel submitted that the meaning and nature of this partition was upheld in the case of OLORUNFEMI V. ASHO (2000) F.W.L.R. (PART 20) 654 AT 665 E ? F :
?One of the methods by which family property can be determined is partitioning through which property, which belonged to the family, is split up into ownership of the constituent members of the family. The property may be, but is not invariably, divided among individual members of the family so as to vest absolute ownership in individual members. The division may be among constituent branches of the family. Where the division is among constituent branches of the family, a new family ownership is created in as many places as the property is divided, each branch becoming owner of the portion partitioned to it. Thus partition in law means permanent division of the land, not only for use of the members of the family
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concerned, but also complete ownership as well. (P.665, E-F).?
Learned counsel submitted that the respondent had sufficient interest in the subject matter of the dispute and therefore locus standi to institute the suit. He referred to Section 6 (6)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and urged us to hold that the respondent has the locus standi and competence to sue for the determination of the civil rights and obligations of the Basiru Oguntade family in a representative capacity.
RESOLUTION OF ISSUE 1:
Two points were raised by the appellant under this issue. The first is whether the Respondent had the locus standi to institute the suit and the second is whether the learned trial judge had the power to amend the relief claimed by the Respondent. The Respondent did not react to the second point. Ground one of the Notice of Appeal and its particulars read as follows:
GROUND ONE:
The learned trial Judge erred in law when he held:
?Chief Ogunleye has submitted that a look at Exhibit D will show that the land was partitioned to various people as Togun Oguntade, Salami
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Akinleye Oguntade and Olabode Oguntade. He submitted that the land having been partitioned is no longer the Oguntade family land and as such plaintiff cannot bring this action on behalf of Oguntade family since the land has ceased to be Oguntade family land because each of them has their respective holding. Though Prince Adesemowo did not respond to the point in his address, my short answer is that from the pleadings and evidence of the plaintiff though he claimed to have instituted the action for himself and on behalf of Oguntade family, which family, it is common ground exists, the plaintiff’s case is that the portion now in dispute is the portion representing his own share which he inherited under native law and custom. In effect the plaintiff has shown that notwithstanding the representative capacity in which he instituted the action the land in dispute belongs to him being his own share consequent to the partition. The plaintiff, no doubt in the circumstances, has the locus standi to maintain the action. I so hold.?
Particulars of error
i. A party is bound by the reliefs he seeks and the capacity by which he claims the reliefs. It is
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wrong for the trial judge to adopt a circuitous approach to save at all cost an incurably defective suit.
ii. The learned trial Judge eventually granted judgment to the Plaintiff in the capacity in which he sued for the full size of the Oguntade family land which had not been sold to other people and not for the portion allegedly shared to the Plaintiff in his personal capacity.
iii. There is no pleading or evidence before the Court as to which portion of the land belonged to the Plaintiff in his personal capacity.
Generally, when an error in law is alleged as a ground of appeal, the particulars of the error, that is the nature of the error should be clearly set out. It is also generally not enough to quote the portion of the judgment containing the error of law. ANADI V OKOLI (1977) 3 SC 112, (1977) ALL N.L.R. 23. The Appellant did set out what he considered to be particulars of the alleged error in law of the trial Judge but those particulars as set out are not strictly the particulars of the alleged error in law. Rather they are arguments and narratives of the Appellants grievances. However in the case of DIAMOND BANK LTD V P.I.
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C. Ltd (2009) 18 NWLR (Pt. 1172) 67, Ogbuagu JSC held that the whole purpose of grounds of appeal is to give the other side notice of the case it has to meet in the appellate Court. The grievance of the Appellant can actually be deduced from the part of the judgment quoted under the ground of appeal. Any one reading the ground of appeal and its particulars as they are cannot claim to be confused about the complaint of the Appellant. In the interest of justice, the issue formulated from the ground of appeal which relates to only the aspect of whether or not the Respondent had locus standi to institute the suit will be considered.
As far as locus standi is concerned, the learned trial judge is right in his view that the Respondent had locus standi to institute the suit. In the case of BABAYEJU V. ASHAMU (1998) 9 NWLR (PT.567) 546 the Supreme Court held that a member of a family whose interest is threatened by the alienation or wrongful interference with family property can sue to protect his interest whether with or without the consent of other members of the family; for if he does not act, he may find himself being held to be standing by when his rights
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were being taken away. See also ODENEYE V EFUNUGA (1990) 7 NWLR (PT.164) 618, 622, 623; MOZIE V MBAMALU (2006) 15 NWLR (PT. 1003) 466; EXPLO-TECH NIG LTD & ANOR V OBANLA & ORS (2017) LPELR-42693 (CA). Locus standi to institute the suit is quite a different issue from whether the Respondent can claim on behalf of Oguntade Family, the land having been partitioned. It is however clear from the amended pleadings and evidence led that the Respondent was not claiming for the Oguntade family.
At some point during the hearing, an amendment was made to the Pleadings bringing in a survey plan. The amended part of the pleading read thus:
“30. (a) The plaintiff has commissioned Surveyor L.A. Animashaun a registered Surveyor to survey the land in dispute and accordingly plan No.LAL/DO26/203 of 22/6/2003 was produced. The plaintiff pleads and shall rely on this plan at trial.
(b) The plaintiff shall adduce evidence at the trial that the land in dispute is bounded in the North by Agbeyangi family land; in the East by Adesiyan family land, in the West by Elediju family land and in the south by the existing road;
?(c) The plaintiff avers that the
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land in dispute which originally belong to Pa Oguntade (deceased) has been partitioned and the portion now in dispute is the portion representing the shares of the plaintiff which the plaintiff inherited under native law and custom.
(d) The plaintiff avers that he has always been in peaceable and lawful possession of the land in dispute by planting crops such as maize, cassava, kola nuts, yam, and cocoyam thereon without any disturbances from any quarters including the defendants.
(e) The plaintiff avers that the total area in dispute and trespassed upon by the defendants in verged green in the plaintiff?s plan measuring 11.506 hectares.”
These amendments clarified all issues especially as relates to the partitioning and exact extent of the land trespassed on. The only hitch was that Relief (a) of the 3rd Amended Statement of Claim was not amended. The learned trial judge however went ahead to grant relief (a) in an amended version thus:
I declare the Plaintiff entitled to the Customary Right of Occupancy in respect of all that farmland situate at Ishaga and properly described and delineated in Plan No. LAL/DO26/2003 of
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22/6/03 drawn by Animashaun and thereon verged Green.?
The contention of the Appellant is that the learned trial judge had no right to amend the relief claimed by the Respondent. A similar issue regarding amendment of pleadings by the court suo motu arose in the case of NZENWATA V NZENWATA (2016) LPELR-41089 (CA), Agube JCA admirably dealt with the matter thus:
The Claimant/Respondent claimed ownership and title of the disputed land and it is immaterial whether he described himself as beneficial owner having sort for a declaration of title and if the evidence established the essential element of his entitlement to declaration of the statutory Right of Occupancy, the Court/Learned Trial Judge below by the awesome powers conferred on him by the Constitution, Statute and the Rules of Court had the power which he rightly exercised in amending the pleadings of the Respondent provided no injustice was occasioned the Appellant?I was minded to hold that from the leading authorities on the amendment of pleadings I found the decision in Ojah and Ors V Ogboni & Ors (1976) 1 NMLR 95 (1976) N.S.C.C. (Vol.
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10) 244, where our judicial Titans of the Supreme Court Sowemimo, Irikefe and Madarakin, JJSC (as they were then) illuminated and instructively expounded the principles underlying the exercise of the awesome powers of the Courts discretion to grant amendment of pleadings held citing Bowen L.J in Cropper Vs. Smith (1884) 26 CH.D 700 at 710 and 711 that:- I think it is well established principle that the object of Court is to decide the rights of the parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise in accordance with their rights I know of no kind of error or mistake which if not fraudulent or intended to over reach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or grace?..In Shell v Ambah (1999) 2 SCNJ 152 at (sic) 150, (1999) 3 NWLR 1; the Supreme Court reiterated on the principles above stated that where an amendment has become imperative by reason
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of variance between the Statement of Claim and the evidence adduced at the trial by the Plaintiff, the Court has always granted it even after the completion (as in this case) of the trial and judgment reserved? I am not oblivious of the fact that in this case, it was the Learned Trial Judge who suo motu amended the Relief in question without any application from the Respondent in which case the authorities of P.S Pascutto v. Adecentro Nig. (Supra) and Commissioner of Works Benue State v. Devcon Dev. Consultants Ltd (Supra) would have applied to hold the learned trial judge guilty of making a case on behalf of the Respondent by the amendment of Relief Number 1 of the Respondent or granting the Respondent the relief not soughtwhereas as in this case, the Court below in its bid to amend the Relief to be in tandem with the evidence led as to the capacity under which the Respondent sued, such amendment is allowed in law. See Gbogbolulu v. Hudo (1941) 7 WACA 164, Ezera v Ndukwue (1961) All NLR 564 more particularly where the issue of the Relief sought by the Respondent had been raised in the course of the trial
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and counsel for the parties addressed the Court on it as reflected earlier in this judgment and the Court merely incorporated the pleadings as that which has emerged in the course of the case as an issue between the parties, such an amendment was grantable as the learned trial judge had done in the interest of justice?
As I stated earlier, an amendment was made to introduce the survey plan duly admitted in evidence without any objection. It is important to note that the Appellant in his statement of Defence did not deny any of the averments relating to the survey plan. Evidence was led on the survey plan and the Surveyor who testified as PW3 was cross-examined. His evidence remained intact and no issue on the survey plan was raised in counsel?s address. There was no dispute that the area alleged trespassed on in the survey plan is the same as the area alleged to have been trespassed on in paragraph 29 of the 3rd Amended Statement of Claim. All the learned trial judge did was to amend Relief (a) to bring it in line with the evidence led. It was no doubt a mistake on the part of learned counsel for the Respondent not to
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have amended the Reliefs sought. If he had sought to amend it, the amendment would have been granted without any ado in accordance with a plethora of authorities on the matter of amendments. Having seen the flaw in the course of the preparation of the judgment, the learned trial judge merely incorporated the evidence led in the relief claimed. He did not make a case for the Respondent as the Respondent had already made the case in his pleading and evidence led. No doubt it is always advisable whenever an issue is to be taken up suo motu by the learned trial judge to invite the parties to address him on the issue. But in the present case as ably marshaled out in NZENWATA V NZENWATA (2016) LPELR-41089 (Supra) by Agube JCA; this was an innocuous amendment to bring the relief claimed in line with the evidence led in Court. This issue was however not seriously canvassed in the appeal but merely touched in the course of argument as to whether the Respondent had locus standi, hence the failure of the Respondent to take note and to react to it. The relief claimed was at variance with the evidence led by the parties. The learned trial judge merely effected the
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necessary correction to bring the relief in line with the evidence led. He did not make a case for the Respondent neither did he grant him a relief not claimed. Issue one is resolved against the Appellant.
ISSUE 2:
Whether the failure and/or omission of the learned trial judge to resolve the issue of paternity of Teju in respect of which issues were joined by the parties occasioned a miscarriage of justice in this case. (Ground 4).
Learned counsel for the Appellant submitted that the issue of paternity of Teju the mother of the Appellant was seriously contested in the case. He examined the evidence led on the issue and submitted that the failure of the learned trial judge to pronounce on it occasioned a miscarriage of justice.
The Respondent in reply submitted that the Appellant did not raise the paternity of Teju as an issue for determination by the lower Court and that the issue is coming up for the first time in this Appeal as a fresh issue. He submitted that none of the averments in the Statement of Defence specifically pleaded the facts relating to the paternity of Teju and that no issue was formulated on
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it for determination by the lower Court. Counsel submitted that no leave was obtained to canvass the issue as a fresh issue and urged us to strike out ground 4 of the Notice of Appeal as incompetent.
RESOLUTION OF ISSUE 2:
Ground 4 of the Notice of appeal and its particulars read:
GROUND 4:
The learned trial judge failed to resolve the pertinent issue of the paternity of Teju in respect of which issues were joined by the parties
PARTICULARS OF ERROR:
The issue of paternity of Teju determines the interest of the 1st Defendant in the land in dispute and the omission by the Trial Judge to make specific finding on the issue obviously occasioned a miscarriage of justice.
The Respondent in paragraph 10 of the 3rd amended Statement of Claim averred that Akinleye married two other wives who begat children for him including Teju but that Teju?s paternity was disputed by Akinleye. In the course of cross examination the Respondent testified that:
Apart from Alarotan Akinleye married other wives. He married Omifenwa and Omiwande. Omiwande begat Tejumade the mother of the 1st defendant………….. No land
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was shared to Tejumade because she was not Akinleye’s daughter. She was brought to Akinleye.?
The Appellant on the other hand claimed that he is a descendant of Akinleye through Tejumade and Omiwande and that during Akinleye’s life he shared his land on Idi-igi basis, and that the portion shared to Omiwande branch are now occupied by the Appellant who is the son of Tejumade and grandchild of Omiwande.
It is consequently wrong to argue that the issue is a fresh issue requiring the leave of the Court. The parties clearly joined issues on it. However, was the learned trial judge wrong in failing to pronounce on it? The answer is an emphatic No! The Appellant did not count-claim for declaration of title. The Respondent claiming declaration of title is the one on whom the burden of proof rests to prove that he is entitled to the declaration sought. After examining the traditional evidence led by the Respondent in proof of his title, the learned trial judge found that he had made a prima facie case. His Lordship then turned round to look at the evidence led by the appellant. At the end his lordship held that there were material
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contradictions in the traditional evidence led by the Appellant as to how the land was founded. The title of Akinleye had to be first established before the issue of entitlement of his children can arise. In the circumstances, the issue of paternity of Teju did not arise at all and the learned trial judge did not err in failing to pronounce on it. Issue 2 is resolved against the Appellant.
ISSUE 3:
Whether the learned trial judge was right to have rejected the traditional history of the Appellant simply because it was not tied to a survey plan and to uphold the traditional history of the Respondent having regard to the circumstances of this case. (Grounds 2 and 3).
Learned counsel set out certain portions of the judgment of the learned trial judge and submitted that the findings and conclusions show positively improper evaluation of evidence and misapplication of law to the circumstances of the case. Counsel argued that even though conclusive traditional evidence is one of the ways of establishing title to land and that a plaintiff relying on traditional history must prove the founder, how the land was founded and particulars of the
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intervening owners through whom he claims; the evidence must be corroborated as it would be unsafe to accept conclusive evidence of one person for the standard of strict proof required. Counsel further submitted relying on MR OGUN VS MR AKINYELU & ANOR (2005) ALL NLR (PT.243) 601 AT 623 that the credibility of a witness ought not to be the determining factor but rather that where there is a conflict as to which of the two traditional histories is more probable; the correct yardstick to determine which is authentic is by reference to facts within living memory. He opined that when both traditional evidence is inconclusive the case will be decided on numerous acts of possession or ownership under the principle in KOJO II VS. BONSIE (1951) 1 WLR 1223. Learned counsel submitted that in the present case, the traditional evidence of the Respondent was not comprehensive, cogent or conclusive and was most unreliable. Counsel argued that the Respondent gave the name of Oteniya Laleye as the first settler on the land in dispute and that Oteniya Laleye had two children namely Jagundina (male) and Alarotan (female). He submitted that apart from the mentoring of
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Jagundina as the only son of Oteniya Laleye the Respondent’s narration made no further reference to Jagundina or his lineage in this case. He submitted that the descendants of Jagundina were not called to testify to corroborate the traditional evidence of the respondent. Furthermore Exhibit F by which the Respondent claimed that 28 villages paid tribute or rent to Oteniya Laleye through Akinleye was declared to be of no evidential value by the trial judge. Yet, no witness was called from the 28 villages by the Respondent to confirm payment of rent or tribute to Oteniya Laleye. Counsel submitted that the survey plan-Exhibit D is a dispute plan prepared during the pendency of this case to show present features on the land and that it is not a perimeter survey plan in existence prior to litigation. Counsel pointed out that Exhibit D which was made specifically for this case did not show the 28 villages which were alleged to be part of Oteniya Laleye?s land and that the Respondent did not disclose where Oteniya Laleye came from before he settled on the land in dispute.
Counsel submitted that the traditional evidence of the appellant, on the other
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hand is comprehensive, cogent, reliable and conclusive. He submitted that the case of the Appellant is that the founder and first settler on the land is Akinleye who came from Dahomey to settle on the land in dispute; that the said Akinleye married three wives: Alarotan, Omiwande and Omifenwa; that the Respondent is a grandchild of Alarotan just as the Appellant is a grandchild of Omiwande. Counsel submitted that the traditional evidence of the Appellant is comprehensive with regard to the wives, children and grandchildren of Akinleye and this was corroborated by the Respondent and his witnesses. He submitted that it is important to state that Akinleye begat Pa Oguntade the father of the Respondent. He submitted that both sides are in agreement that Akinleye married Alarotan and that they both lived and farmed on the land. Counsel submitted that the issue in contention is whether Akinleye first settled on the land or his in law first settled on the land and thereafter made a gift of the land to Akinleye’s wife Alarotan. Counsel submitted that the Respondent admitted in paragraph 4 of his Reply to the Statement of defence that Akinleye was collecting rent or
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tribute from the land but that he was doing so on behalf of Oteniya Laleye. Counsel submitted that there was no evidence that Akinleye was appointed by Oteniya lafeye as Attorney or agent for collection of rent. He submitted that the traditional evidence of the Appellant is also corroborated by the family Secretary and Baale of the Community who testified as DW6 and the evidence of all the other defence witnesses. Counsel submitted that the learned trial Judge erred in his conclusion that failure of the appellant to file a separate survey plan to contradict Exhibit D is fatal to the traditional history of the Appellants as the survey plan is not the determining factor. He opined that the learned trial Judge failed to accord Exhibit Q any probative value. (Exhibit Q is evidence of the sharing of land to 1st Defendant?s grandmother). Counsel argued that the reasons adduced by the learned trial judge for depriving Exhibit Q evidential value are speculative and based on assumptions which are not supported by concrete facts. Counsel urged us to look at Exhibit Q and accord it high probative value in accordance with the principle of law lucidly
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stated by the Supreme Court per Niki Tobi JSC in the case of GABRIEL IWUOHA & ANOR VS NIGERIAN POSTAL SERVICE LTD & ANOR 14 NCQR (PT.L) 253 AT 275. Counsel finally urged us to hold that the traditional history of the Appellant was more probable and conclusive than that of the Respondent; to allow the appeal, set aside the judgment of the lower Court and to dismiss the Respondent?s case.
?Learned counsel for the Respondent dealt with this issue as his issue 1. He submitted that the evidence of traditional history as adduced by the Appellant in their statement of defence and as adopted in the written statement on oath of the defence witnesses did not establish that the same identity of land is in issue or dispute. Counsel submitted that the Respondent by paragraphs 29, 30(a) (b) and (e) of the 3rd amended statement of claim and the evidence of PW 4 testified as to the respective boundaries of the land which is the Oguntade family land and the portion which is in dispute verged GREEN and cause of action in Exhibit D tendered and admitted in evidence without any objection by the defendants. Learned counsel argued that while the land in
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dispute and cause of action measuring approximately 11.506 hectares is bounded in the South by an existing OWODE-ILARO ROAD, the Appellant in their statement of defence pleaded in paragraphs 60, 61 and 62 at Page 18 of the records that ?Akinleye farmland does not extend to Owode-Ilaro Road and that Olaitan farmland which is on the other side of the road could not have been given or donated to Olaitan by either Akinleye or Oguntade?. He set out the relevant paragraphs:
“(60) Defendants say that Akinleye farmland does not extend to the Owode-Ilaro road and Olaitan?s farmland which is on the other side of the road could not be given or donated to Olaitan by either Akinleye or Oguntade.
(61) Defendants state that only the family land of Jooda and Akinyemi were traversed by the Owode-Ilaro Road.
(62) The land in dispute is bounded on the East by Olojoun family land, On the West by Ilediju family land, On the North by Agbeyangi family land and on the South by Yusuf Bamtefa and Jooda family land.”
Counsel submitted that the Olojoun family as pleaded in Paragraph 62 above does not form any common boundary with the
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Respondent?s land in Exhibit D whilst Yusuf Bantefa and Jooda family do not have any boundary with the Respondent land as per Exhibit D and that similarly Olaitan farmland claimed to be on the other side of the road does not form part of the land in Exhibit D. Counsel submitted that the Appellant also testified that Akinleye land does not extend to Owode ?Ilaro Road (para 60). Counsel submitted that the effect of the Appellants denial of the boundaries of the Respondent plan in Exhibit D is to put the identity of their own land in issue. But they filed no survey plan. Counsel referred to the case of ILARI OGUN V MR. MOLIKI AKINYELU & 2 ORS. (2004) 20 NSCQR 302 where the Supreme Court held:
?It was open to the Appellant (as defendant) to contradict the respondent?s plan with his own plan. Indeed a defendant who puts the identity of land in issue must successfully take that course otherwise he fails on that issue.?
?Learned counsel submitted that the area and extent or boundaries of the land referred to in Exhibit Q is not known to the parties because from the evidence on record both oral and documentary the
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land claimed by the Appellant and upon which their traditional evidence inures are different separate and distinct from Exhibit D. Counsel referred to the case of UKAEGBU V NWOLOLO (2005 ? 2009) 5 S.C. J. L. 752 AT 753 where it was held:
?Where evidence of traditional history is not satisfactory, the need then arises for a plaintiff to prove numerous acts of ownership. In other words, the rule in Kojo v. Bonsie will apply, where the land in dispute between the parties, is in respect of one and the same piece or portion of land. In that case, the identity of the said land in dispute will be well known to the parties and by the Court from the oral and/or documentary evidence such as a survey plan before it. It cannot be otherwise. In the instant case, evidence on record established that the land claimed by the Respondent?s family and the one claimed by the Appellants, are different, separate and distinct. The evidence of the parties, are as it were parallel. In other words, there is no conflict strictly speaking, in the instant case to warrant the application of the rule in Kojo v Bonsie.? (Underlining mine for
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emphasis)
Counsel submitted that the case of KOJO II VS. BONSIE (Supra) is inapplicable and that the learned trial judge was right in the conclusions arrived at. On the contention of the Appellant that Exhibit Q was not evaluated, Counsel submitted that the learned trial judge properly evaluated Exhibit Q as shown at page 143 of the records. On the issue of filing of dispute plan during the pendency of the case, counsel submitted that the plan was filed in accordance with the High Court of Ogun State (Civil Procedure) Rules, 2008 which were the rules in force as at the time the 3rd amended statement of claim with plan was filed on 3/11/2008. The Rules enjoin parties to file a dispute survey plan within such a time as may be ordered by the Court and that the Respondent in compliance with the Rules filed the survey plan with the leave of the lower Court. He urged us to resolve the issue in favour of the Respondent and to dismiss the appeal.
RESOLUTION OF ISSUE 3:
The law is settled that the burden rests squarely on the Plaintiff who is claiming a declaration of title to land to adduce cogent and credible evidence to satisfy the Court that
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he is entitled to the declaration sought. To succeed, the Plaintiff must rely on the strength of his own case and not on the weakness of the defendant?s case as the defendant?s duty is only to defend the action where he has no counterclaim. The Plaintiff is however entitled to take advantage of the weakness of the defendant?s case where it strengthens his case. See generally, KODILINYE V ODU (1935) 2 WACA 336; OBIASO V OKOYE (1989) 2 NWLR (PT. 119) 80; ONWUGBUFOR V. OKOYE (1996) 1 NWLR (424) 252; EZE V. ATASIE (2000) 9 WRN 73 @ 88; ADESANYA V. ADERONMU (2000) 9 NWLR (PT. 672) 370. ADEBAYO V SHOGO (2005) 7 NWLR (PT. 925) 467; AJIBOYE V ISHOLA (2006) 13 NWLR (PT 998) 628 @ 652 F-H; OGUNJEMILA V. AJIBADE (2010) 11 NWLR (PT.1206) 559.
A Plaintiff may prove his title to land in any of the following ways:
(a) By traditional evidence;
(b) By documents of title which has been duly authenticated and registered;
(c) By various acts of ownership which are numerous and positive enough, extending over a length of time as to warrant the inference of ownership;
(d) By acts of long possession and enjoyment of the land in dispute;
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or
(e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such land, would in addition be the owner of the disputed land.
The Plaintiff does not have to rely on all the five methods. Reliance on one or more will suffice. See IDUNDUN & ORS V OKUMAGBA & ORS (1976) 9 ? 10 SC 227; MOGAJI V. CADBURY NIG LTD (1985) 2 NWLR (PT.7) 393; BALOGUN VS. AKANJI (1988) 1 NWLR (PT.70) P. 301; ONWUGBUFOR V. OKOYE (1996) 1 NWLR (PT. 424) 252; SALAMI V. LAWAL (2008) 14 NWLR (PT. 1108) 546; AYORINDE V SOGUNRO (2012) LPELR-SC12/2006; FALEYE V. DADA (2016) LPELR-SC.315/2006.
In this appeal the Respondent relied on traditional history to establish his title to the land in dispute. The law is that the initial burden of proof rests on the Plaintiff. Where he is able to lead credible evidence which prima facie establishes his title to the land in dispute, the burden will then shift to the Defendant to adduce evidence in rebuttal by showing a better title to the land. Where the Defendant fails to discharge this evidential burden on him, the Court will give judgment to the Plaintiff. The learned
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trial judge in this appeal followed this procedure to the hilt. The law is that where a party relies on traditional history in proof of his root of title, he has the burden to lead satisfactory evidence as to (a) who founded the land; (b) how the land was founded; and (c) the particulars of the intervening owners through whom he claims without any break or gap in the chain of succession.
After perusing the evidence led by the parties, the learned trial judge rightly came to the conclusion that there is no dispute between the parties as to how the land was founded and the particulars of intervening owners. The dispute was in respect of who founded the land. After a hard look at the pleadings and evidence led by the Respondent the learned trial judge in his judgment at page 138 of the Record of Appeal observed:
“The Plaintiff and 1st PW testified that the land in dispute originally belonged to Oteniya Laleye a native of Ajilete who first settled on it and cultivated it as a virgin forest. There is evidence by the Plaintiff and PW2 that Oteniya exercised acts of possession and dominion over Isaga and other villages forming part of his land by
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collecting Ishakole from them in proof of which Exhibit F was tendered. However I agree with Chief Ogunleye that Exhibit F is of no evidential value for the following reasons, to wit: (a) the source and the maker of the document are not known; (b) there is no pleading that Akinleye acted as Oteniya?s intermediary in collecting Ishakole and lastly the document on its face does not justify what it was meant and tendered for. I discountenance it. That, however in my view does not detract from the evidence of PW2, a local chief of 92 years that Oteniya settled on a large expanse of land including the land in dispute which evidence was not contradicted under cross-examination. There is also evidence that Oteniya had two children, Jagundina and Alarotan and that Oteniya gave a portion of his land known as Oke-Ogbon to his daughter Alarotan who settled on it with her husband. There is evidence that Alarotan begat Oguntade, Alaba, Togun, Bamijoko and Adedoyin who inherited the land from Alarotan. The PW1 and PW2 in their statements on oath support the evidence of the plaintiff that Oteniya was the original founder of the land and that he gave the portion in
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dispute to Alarotan, his daughter. The plaintiff and the 1st and 2nd plaintiff?s witnesses were not shaken under cross-examination.”
?Learned counsel for the Appellant complained that the evidence of the Respondent?s witness as to who founded the land was not corroborated and that the learned trial judge cannot base his evaluation of the evidence of the witnesses on their credibility. There is no law strictly requiring corroboration of the evidence of witnesses in land matters.
In the case of NDUKUBA & ANOR V NWANKWO & ORS (2016) LPELR-40937(CA) Court of Appeal Enugu Division Per Yakubu JCA observed:
?It is very clear to me that the pieces of evidence extracted from the PW1, PW2, PW3 and PW4 with respect to the traditional history of the devolution of the land in dispute from Agbiligba to Odukalia or Ezekiel is fraught with inconsistencies and contradictions which no reasonable tribunal would believe and act upon. Yes, the learned trial judge missed the point when he talked of corroboration of the evidence of PW2. However the fact is that there were contradictions in the evidence of PW1, PW2, PW3 and PW4 as
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highlighted above, such that that was enough to cause the failure of the appellant?s claim as being unreliable and not cogent.?
Corroboration has no role to play here. What is important is whether the evidence of the witnesses called by the Respondent was consistent without contradictions, cogent and convincing. The learned trial judge in his judgment pointed out the evidence of the Respondent?s witnesses that were not only consistent and in tandem with their pleadings but also supported by the evidence of the witnesses called by the defence. For example, evidence was tendered that Alarotan and her husband Akinleye after settling on the land invited some of their friends, amongst them Elediju and Adesiyan from Ado-Odo to come and farm on the land. This evidence is supported by the fact that in the survey plan Exhibit D, Elediju and Adesiyan are shown as boundary mates to the land in dispute, a fact confirmed by DW1 under cross-examination. In his judgment at page 130 of the Record, the learned trial judge observed:
?there is evidence that Oguntade in his lifetime shared the land among his siblings and gave
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portions to his half brother Salami and Balogun. The evidence was not contradicted; rather it was confirmed by the DW6 ? Jimoh Akinleye and secretary of Akinleye family under cross-examination that his grandfather Salami and Olabode?s father have their separate land. Exhibit D also shows clearly the land of Togun Oguntade, Salami Akinleye Oguntade and Olabode Oguntade. It is instructive to note that the plaintiff and PW1 were unshaken under cross-examination and their evidence not relevantly contradicted. In the circumstance, I cannot but hold that the Plaintiff has made out a prima facie case.?
Traditional history is nothing short of stories passed on from generation to generation as to how a piece of land was acquired. It is hearsay evidence repeated over and over. If the witnesses called by a party in support of his traditional history contradict each other in Court, the traditional history would of course be rejected. Here the evidence of the Respondent?s witnesses was consistent and believable. The trial judge found them credible witnesses and believed them.
?The Appellants also relied on traditional history but the
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learned trial judge found the evidence of their witnesses contradictory and inconsistent. In his judgment at page 141, his lordship observed:
?A perusal of the traditional facts and evidence of how the land was founded reveal irreconcilable conflict. On the one hand, it was claimed that Akinleye founded and first settled on the land at Oke-Ogbon later known as Ishaga from time immemorial; on the other, it is alleged that Akinleye, Ilediju and Odunburu migrated to Oke-Ogbon now Ishaga Village which means that three of them founded the land. Infact the DW1 a member of Ilediju family said under cross-examination that Ilediju was the first to get to Ishaga before Akinleye came; while DW3 Chief Emmanuel Agbeyangi said his ancestor and Akinleye were contemporaries and that they all came from Ado-Odo to settle in Ishaga. These material contradictions bear negatively against the veracity of the 1st defendant?s claim that Akinleye first founded and settled on the land in dispute. Again the evidence of the 1st defendant that Akinleye (claimed to be the founder and earliest settler on the land) did not build his house on the land but on the land given to
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him by Ilediju lends credence to the evidence of DW1 and puts to serious doubt the claim that Akinleye first settled on the thick virgin uninhabited forest from time immemorial. Unlike the Plaintiff, the defendant did not file or tender a plan of the land allegedly settled upon by Akinleye, neither is there any evidence of its extent
There is a whole lot more on the conflicting and inconsistent evidence led by the Appellants which went to strengthen the case of the Respondent. It is also quite obvious that the Appellants? traditional history was not rejected simply because it was not tied to a survey plan. Apart from the many conflicts and inconsistencies in the evidence of their witnesses, there was uncertainty as to the land they were actually claiming. The learned trial judge in his judgment at page 142 observed:
?Meanwhile they did not dispute Exhibit D. In fact DWs 1, 2, 3, and 8 gave evidence of the boundaries of the land in dispute in line with Exhibit D. As per Exhibit D, the land Akinleye could be said to have settled upon will be the land being claimed by the Plaintiff as belonging to Oguntade verged red
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excluding the portions allegedly trespassed upon by the 2nd 3rd 4th and 5th defendants. Unfortunately that assumption cannot stand in view of the further evidence of the 1st defendant that Akinleye before his death divided and shared his land amongst his children on Idi-Igi basis as there is nothing on Exhibit D to conclusively substantiate the allegation of sharing. The failure of the defendants to file a plan showing the extent of the land of Akinleye and the respective holdings of his children to whom he allegedly shared portions of his land on Idi-Igi basis is fatal to the defendant?s case. I so hold.?
The evidence led by the Appellants? witnesses on the boundaries of the disputed land is in addition inconsistent with their pleadings. As pointed out by learned counsel for the Respondent in his brief, in the averments in paragraphs 60, 61 and 62 of their statement of defence, the Appellants denied the boundaries as shown in the Respondent?s plan Exhibit D, they have consequently put the identity of the land they are claiming in issue and yet they failed to file any survey plan. What chance did they stand with this grave
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omission?
Learned counsel had contended that the trial judge erred in failing to accord Exhibit Q probative value. Exhibit Q is the document evidencing the subsequent sharing of the land to 1st Defendant?s grandmother which he eventually inherited. The learned trial judge was right in not according it any probative value as the traditional evidence led by the Appellants as to how their progenitor founded the land failed.
In the face of the obviously unsatisfactory evidence led by the Appellants, of what relevance is the case of KOJO II VS. BONSIE (1951) 1 WLR 1223? In NWOKIDU & ORS V OKANU & ANOR (2010) 1 SCNJ 167 @ 196, Adekeye JSC describing when the Court can fall back on the principle enunciated in KOJO V BONSIE held:
?In the scenario before the Court where the case is fought on evidence of traditional history ? which in other words becomes a matter of hearsay upon hearsay which is the nature of traditional evidence, the trial Court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by
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testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history relied upon the trial Court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied on by the other side, the trial Court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable or conclusive that it will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.?
It is obvious then that KOJO II VS. BONSIE is totally inapplicable here. The learned trial judge rightly found the traditional history of the Respondents satisfactory and rejected that of the Appellant as contradictory and incredible. This is certainly not a case for the application of the principle in Kojo. In conclusion the learned trial judge held at page 143 of the Record:
?In this case and in the circumstance of earlier findings, I accept and prefer the unchallenged evidence of the Claimant that the land was originally settled upon by Oteniya. I also believe
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the evidence that Oteniya granted the land to Alarotan and as confirmed by Exhibit D that Alarotan and her husband Akinleye gave portion of the land to their friends Elediju and Adesiyan and that the land was shared by Oguntade to his siblings and his half brothers ? Balogun and Salami. Above all, the fact that Oguntade and not Akinleye (who was then still alive) became Baale of Ishaga which position he attained according to DW1 not because he was Akinleye?s son, makes the evidence more convincing and credible . On the other hand, the defendants? traditional history/evidence was still-born from their pleadings. The inescapable inference which I hold established from the contradictory pleadings and evidence of the defendants in relation to the founding of the land is that Akinleye was not the founder of Ishage. The evidence on the alleged sharing of Akinleye?s land was also incredible. Contrary to their evidence in chief that the land was shared on Idi-Igi basis,the DWs 6, 7 and 8 under cross-examination said the land was shared to Oguntade. What the defendants did in this case was to tailor their pleadings and evidence as much as possible
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in line with exhibit D. Their evidence lacks depth and is unconvincing. It is obvious and I so hold, that they have no defence to the claimant?s claim. That added to my earlier finding that the evidence of DW1 was suspect lead to one conclusion that the traditional evidence of the defendant is unreliable and incredible. I so hold. On the balance, I find the evidence of the claimant more probable and weightier than the defendants and as a result I resolve the sole issue in plaintiff?s favour, and hold that he is entitled to the declaration sought. See: Odofin v Mogaji (1978) 11 NSCC 275 at 277; Ajibona v Kolawole (1996) 10 NWLR (Pt. 476) 22.”
The learned trial judge properly evaluated the evidence, applied the relevant laws and came to the right conclusions. I find no merit in this appeal.
It is hereby dismissed with costs assessed at N50, 000.00 in favour of the Respondent.
Other Citations: (2007)LCN/2512(CA)
