Olaoluwa Fayemi V. Sir L. S. Awe (2009)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, J.C.A.
This is an appeal against the judgment of Akintayo J. sitting at the Ado Ekiti High Court of Justice in Ekiti State delivered on the 27th day of November, 2007 in Suit No.HAD/89/2000 in which the learned trial, Judge entered judgment for the plaintiff, now the respondent, against the defendant, now the appellant.
In view of the nature of the ease leading to the aforesaid judgment being based on trespass to land which invariably relates to title to land. I am of the firm view that it is of moment to reproduce some of the salient aspects of the pleadings relied upon by the parties. Thus, both parties filed and exchanged their pleadings. Subsequently the original pleadings were duly amended as Amended Statement of Claim and Amended Statement of Defence on the 30th September, 2003 and 24th October, 2003 respectively.
Paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 17, 18, 19, 20, 21, 22, 24 and 25 which are of moment to the due consideration of this appeal read:
“3. The plaintiff is the owner of a piece or parcel of land situate, lying and being at Asha family layout along Iyin Road, Ado-Ekiti.
4. The plaintiff bought the land from Asha family of Okesha Street Ado-Ekiti sometime during the year 1975.
5. The land was conveyed to the plaintiff by the family by a deed of conveyance on the 22nd of July, 1977 signed by the head of the Asha family, John Akinluyi and thumb printed by one Ibidapo Ogunsanya, a Principal of the Asha family for and on behalf of the entire Asha family. The deed of conveyance is hereby pleaded.
6. The transfer of ownership of the land by the family to the Plaintiff by the Ministry of Works and Housing, Lands Division, Akure on the 3rd day of June, 1976. The letter of conveyance is hereby pleaded.
7. The plaintiff engaged the services of a Surveyor to survey the land … Mr. A. O. Adebogun, a licensed Surveyor, to survey the land. He surveyed it and produced a survey plan of the land which is dated 21/5/76 and numbered plan No. 6143G.
8. The land is bounded by survey beacon pillars Nos. BK 3140, BK 3141, BK 3 J43 and BK 3143.
9. The survey plan is attached to the deed of conveyance signed by the vendors of the land before the Chief Magistrate in the Court Registry on the 22nd of July 1977 and registered in the Lands Registry, Akure on the 29th day of July 1977.
10. Immediately the land was sold to him, the plaintiff cleared it and moved into possession thereof.
11. The plaintiff made his cousin, one Alhaji Lateef Safejo Amogbon who has his house adjacent at the back, to look after the land as caretaker of the land and asked him to bring some tenants unto the land who could occupy and use it as workshop as he was not able to build on it immediately.
12. The caretaker brought one James Olowoyo Rajejeun, a welder. This tenant brought a caterpillar to uproot the trees and clear the land of all trees.
15. When the first set of tenants left the land about 1993, the caretaker brought another set of tenants to occupy the land paying therefore rents in money which the caretaker collected and paid over to the plaintiff.
17. The plaintiff wished to use the land to build a shopping complex. He therefore engaged the service of a draftsman, George Akande, who prepared the plan for him and got it approved by the Ministry of Environment. The proposed plan is hereby pleaded.
18. However, sometime in the month of November, 2000, the Caretaker noticed that the defendant went unto the land and began to dig the foundation of a house thereon.
19 The Caretaker went to report to the plaintiff at Ilawe. The plaintiff told his Caretaker to go and report to the police at Ado Ekiti.
21. The Caretaker went back to the plaintiff to report what happened at the Police Station at Ado Ekiti. The plaintiff was embarrassed and he personally went to the D.P.O. Ado Ekiti and showed his deed of conveyance of the land.
22. When the D.P.O. saw the deed of conveyance, he sent some policemen to go to the land and stop the defendant from working on the land. The D.P.O. however advised the parties that the dispute was a civil one and that the parties could go to a civil Court to litigate on their claims.
24. When the plaintiff heard and saw the defendant threaten (sic) to continue his acts of trespass on the land he takes (sic) this action claiming as follows:
(a) The sum of N500,000.00k (five hundred thousand naira) being general damages for trespass which the defendant has committed on the plaintiffs land.
(b) A perpetual injunction restraining the defendant, his servants or agents from committing further acts of trespass on the land.
25. The land is bounded as follows:
(i) On one side by Ado-Iyin Road,
(ii) On the second side by Oke Aiyegbusi’s land which he has now sold to an unknown person, (iii) Michael Oladejo’s land,
(iv) Alhaja Safejo’s land (at the back)…”
As regards the Amended Statement of Defence, paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 14, 15, 16, 17, 19, 20, 22, 23 and 24 are pertinent and thus reproduced:
“1. Defendant admits paragraphs 1 and 2 of the Statement of Claim.
2. Defendant denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 2 I, 22, 23, 24 and 25 of the Statement of Claim.
3. The defendant is a son of James Fayemi who died in 1981.
4. In 1972 defendant’s father and Micheal Oladeji (both of who (sic) were very good friends) bought two plots of land from the family land of Asa, Okesa Street, Ado Ekiti.
5. As there was no reigning Chief Asa during this time, all grants of land made by the Asa family were documented while the late Elijah Fapamisi, Thomas Ogunleye and Salami Opeil’a who were heads respectively of the Fapamisi, Olodo Ogba and Opeifa branches of Asa family always signed such documents of grant or purchase.
6. The said three people signed the documents given to defendant’s father and Michael Oladeji in respect of the land both of them bought on as family land. (sic).
7. Defendant’s father obtained an approved building plan in respect of his land in 1978 just as his friend, the said Michael Oladeji obtained his defendant’s father’s said plan is pleaded.
8. The plots of land of both friends are adjacent to each other. While plot 9 was allocated to the defendant’s father, plot 8 was allocated to Michael Oladeji his friend.
9. Owing or because of his death in 1981, defendant’s father could not develop the land.
10. A few years later, a senior brother of the defendant, Micheal Olajuyigbe Fayemi, started constructing a foundation on the land but was forced to abandon same when he ran into some financial problems or difficulties.
14. The land the plaintiff surveyed if any is not the land in dispute because it does not reflect nor appear on the approved layout plan of the Asa famiIy land nor was the said land granted to him by the said Asa family.
15. On the said approved lay-out plan, pillar numbers AW 5101, AW 5102 and AW 5 I03 and AW 5104 form part of the boundaries of the defendant’s land, apart from Michael Oladeji with whom defendant also shared the boundary with.
16. The land in dispute was bought by the late father of the defendant and this defendant and other defendant and other children of their late father have inherited.
17. The defendant shall contend at the trial of this suit that the act of the plaintiff on the land is an unlawful flagrant, unbridled, wicked, reckless and unconscionable trespass as the said land does not belong to him.
19. The plaintiff has no genuine or authentic documents respecting there (sic) to the land, hence his case was turned down at the Police Station.
22. The land in dispute is the inherited property of defendant and other children of his father, it does not belong to the plaintiff.
23. The defendant is hence not liable in trespass as regards the land and the plaintiff can therefore not collect rent thereon.
24. Defendant asks that the plaintiff’s claim be dismissed in its entirety with substantial costs.”
At the trial, the plaintiff who opened his case on the 3rd of March, 2004, called four witnesses including himself whereby exhibits A, B, C and D were admitted through the P. W. I (Chief Joseph Olatunji Akanbi Adebo, a legal practitioner) in respect of exhibit A (the deed of conveyance), the P. W. 2, the plaintiff, in respect of exhibits B and C with regard to environmental report and approved plan respectively; the P.W. 4 (Chief George Iyiola Akande, a survey assistant to licensed Surveyor Adebogun, in respect of exhibit D being the receipt of N500.00 the plaintiff paid for the workmanship on the survey plan respectively. The PW 3 Alhaji Safejo Amogbon also gave evidence that the plaintiff is the owner of the land in dispute. It was through the plaintiff he bought his own land from the same Asha family. He had built his own land. Since he was living in his own land, the plaintiff appointed him a Caretaker being a duty he performed diligently. It was he who alerted the plaintiff when the defendant trespassed on the plaintiff’s land.
The defendant opened his case on the 27th November 2006 and called only three witnesses. The D.W.1, Emmanuel Ojo, a registered draftsman and a builder testified that he is an accredited member of Asha family assigned by the Asha family to allocate land to people. He specifically testified that he allocated land to Michael Oladeji (the D.W.2) on which he build a storey building and late James Fayemi the father of the defendant in 1975. On allocating parcels of land to purchasers, heads of the three branches of Asha family that is to say Olodo Oba, Faparusi and Ope families headed respectively by Thomas Ogunleye, Elijah Faparusi and Michael Opeifa had the duty of signing the purchase receipts. I shall cursorily remark that this witness did not identify any receipt said to have been issued by those three heads of Asa family. The D.W.1, however, identified the building plan he drew and was approved in 1978. The approved building plan is in evidence as exhibit E. on being cross examined, the D.W.1 said as at the time he allocated land to the defendant’s father in 1975 he was neither the head of Asa family nor the eldest male child in Asa family. He admitted that “Baba” Ogunleye one of the heads of the Isa family had several biological children who were older than him. He also admitted that Alhaji Safejo, the P.W.3, has a boundary with the land in dispute.
The D.W. 2, Mr. Michael Oladeji, testified that the defendant is the son of his late friend, James Fayemi. He bought a parcel of land situate at Basiri Area of Ado Ekiti developed in 1980. He bought the land which was receipted. He said that he was instrumental to his late friend, Mr. Fayemi, buying a land adjacent to his own in 1975. Before james Fuyemi died, the D.W.1 prepared the building plan. He denied the land in dispute belonging to the plaintiff. He further testified that he gave the receipt of Mr. Fayemi’s land to him. On being cross examined, he said that Alhaji Safejo shared a common boundary with the land in dispute.
The D.W.3 who is the defendant in person said that he got to know the plaintiff when he was working on his father’s land under the plaintiff got the police to arrest him. He knew the P.W. 3, the D.W.1 and D.W.2. He testified that he bought the land in dispute from Asa family. The house of the D.W. 2 is adjacent to his father’s land. The D.W.1 drew the building plan (exhibit E) for his grand father. He further testified that his elder brother attempted and failed to develop the land in dispute which he and his siblings, sixteen in number, inherited from their late father, Mr. james Fayemi.
At the close of evidence for the defendant the learned counsel for both the defendant and the plaintiff respectively addressed the trial Court. In a considered judgment at pages 88 to 90, the learned trial Judge held, inter alia,
“I must say going through the evidence, there are discrepancies as to the pillars numbers on the land as given in evidence by the plaintiff and the ones in the pleadings. The law is clear that where the evidence is at variance with the pleadings it goes to no issue and so hold. The same thing goes for exhibit ‘D’, a purchase receipt that is not relevant to this case. But I hasten to ask the question that whether apart from the becon or pillar numbers there are other evidences (sic) on the record to show or prove the certainty of the land in dispute. Having considered the facts as presented by the witness to the effect that the land is bounded by (a) Ado-Iyin Road (2) by Oke Aiyegbusi land now sold to J. K. Furniture (3) by Mr. Oladeji land and (4) by Alhaji Safejo’s land I am of the view that the identity of the land has been established. It is important to point out that both parties are in commission (sic) as to the identity of the land in dispute. As to the issue of possession there are evidences in the record offered by the plaintiff that he has being in possession of the land (sic) since he bought the land and that he has been pulling tenants on the land, collecting or receiving royalty. Having established the identity of the land and establish the evidence of possession, (sic) the plaintiff went further to give evidence of his being disturbed on the land by the defendant. The defendant also admitted this but claim (sic) that the land belong (sic) to him by inheritance as the land belong (sic) to his father. To prove this he called a witness from Asha family and also tendered exhibit E. And whereas the plaintiff said that he bought his land from the head of the Asha family and tendered a conveyance exhibit A (sic) which was prepared in respect of the land and signed by the head of the Asha family and its Secretary.
It should be noted that exhibit E which was tendered by the defendant is not evidence of title to the land as it is a building plan not a survey plan or a conveyance or certificate of occupancy. Exhibit E carries a warning to the effect that the approval of the plan by the Ekiti Central Planning authority is no guarantee of the applicant’s title to land.
From the evidence before me I hold that the defendant has not been able to show evidence of better title to the disputed land.
In view of my earlier holdings, I am of the humble view that the plaintiff has been able to prove his case by prependence (sic) of evidence and that his claim succeeds.
It is hereby declared that the plaintiff is entitled to statutory right of occupancy of the plot of land known as Plot 9 Block A at Asha family layout along Iyin Road Ado Ekiti particularly delineated and described in Plan No. FA6, 439 dated 21/5/76.
I award a sum of N100,000.00 as general damages in favour of the plaintiff against the defendant for trespass committed and still being committed on the land by the defendant.
The defendant, his agents, servants and privies are hereby perpetually restrained from further trespassing on the land.”
The defendant, now the appellant, was utterly aggrieved by this judgment and initially filed five grounds of appeal but subsequently with the leave of Court filed an additional ground of appeal in order to make six grounds of appeal on the whole.
In the appellant’s brief of argument dated 18th November 2008 and filed on 24th November, 2008 pursuant to the rules of this Court, he raised the following issues for the determination of this appeal:
“(1) Whether the land in dispute between the parties was proved with certainty by the respondent.
(2) Whether the appellant proved his case to be entitled to judgment.
(3) Whether the justice of the case warranted the grant of an injunction against the appellant.
(4) Whether the appellant did prove a better title to the land in dispute.
(5) Whether the trial court was not in error to have granted a relief which was not claimed by the respondent.”
It is apparent from the brief of argument of the respondent who was the defendant in the trial Court that he did not identify any issues of his own for the determination of this appeal. He instead adopted the five issues raised by the appellants.
At the hearing of the appeal on the 28th of April, 2009 B. Omotosho Esq. and Chief Taiye Omonijo, the learned counsel for the appellant and the respondent adopted and relied on the parties’ briefs of argument and urged the Court to allow the appeal and dismiss the appeal respectively without any amplification.
I have carefully studied the five issues raised by the appellant and I am of the firm view that the five issues can be conveniently taken care of by Issues Nos. 2 and 5 above.
On Issue NO.2, which subsumes issues Nos. 1, 2 itself, 3 and 4, the learned counsel for the appellant argued that where a claim for trespass is coupled with a claim for an injunction as claimed by the respondent, the title of the parties to the land in dispute is automatically put in issue. He particularly said that in an action for a declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which the declaration can be attached and that if the plaintiff cannot properly ascertain his claim the action will fail. He cited in support of these assertions the cases of OLOHUNDE V. ADEYOJU (2000) 10 NWLR (PART 676) 562 AT 580; OTUNLA V. OGUNOWO (2004) 6 NWLR (PART 868) 184 AT 197; AUTA V. IBE (2003) 13 NWLR (PART 837) 247 AT 270. The learned counsel submitted that the respondent failed to prove the identity of the area of land in dispute because –
(a) the beacon numbers pleaded in Paragraph 8 of the amended Statement of Claim being BK 3140, BK 3141, BK3142 and BK 3143 are quite different from those testified to by the P.W.1 and the P.W.2 (the respondent himself) which are respectively numbers BK 3142, BK 3143, BK 3144 and BK 3145 and BK 3040, BK 3041, BK 3042 and BK 3043. These figures are apparently quite different from those on exhibit A cum the survey plan which read survey pillars BK 3142, BK 3143, BK 3144 and BK 3145.
(b) equally at variance from Exhibit A is an aspect of the evidence of the P.W. 5, who drew the survey plan and said that the P.W.2 commissioned him in 1998 to draw the survey plan which is an integral part of Exhibit A and that the said PW2 gave him the sum of N500 which was receipted on 15/7/88 and marked Exhibit D. The date on the survey plan for which receipt was given on 15/7/88 is different from the date on the said survey plan which is 21/5/76.
In view of these discrepancies, the learned counsel for the appellant submitted that the respondent failed woefully to establish the identity of the land he claimed. He relied on the case of BANKOLE v. PETU (1991) 8 NWLR (PART 211) 523 AT 550 which held, inter alia, that failure of a claimant to establish the identity of the land he claims is fatal to his case.
As regards a claim in damages for trespass the learned counsel for the appellant submitted that title to the disputed land is already put in issue and it is therefore incumbent on the plaintiff/respondent in the instant case to first of all establish his title to said land before proceeding to establish possession and called in aid the case of ODUNZE v. NWOSU (2007) 13 NWLR (PART 1050) 1 AT 53. He referred to the evidence of the P.W.5 who testified that the transactions on the land in dispute carried out for the P.W.2 (the plaintiff/respondent) in 1988 instead of 1976/1977 and submitted that this contradiction is material and sufficient to change the fortunes of this appeal in favour of the appellant.
On the issue of perpetual injunction which is an ancillary relief, the learned counsel argued that it is only granted to protect an established right at law or in equity and that if the substantive right has not been established, no injunction would be granted. He relied on the case of LAWAL V. ADENIYI (1997) 3 NWLR (PART 494) 457 AT 464. He furthered his argument by saying that a relief of perpetual injunction can only be granted after a full trial and where the applicant has established his right and actual or threatened infringement of that right. He cited in support the case of U.B.A PLC v. OKEKE (2004) 7 NWLR (PART 872) 393 AT 411 and 412. He submitted, that the failure of the respondent to satisfactorily establish his title to the land and proof of the identity of the land in dispute has disentitled him (the respondent) to an order of perpetual injunction and relied on the case of FAGUNWA V. ADIBI (2004) 17 NWLR (PART 903) 544 AT 570.
It is clear from paragraphs 16 and 22 of the Amended Statement of Defence that he and other children of his father, inherited the land in dispute from their father Mr. James Fayemi. The history of inheritance of the land in dispute given by the appellant (the D. W.3), the D.W.1 (Mr. Emmanuel Ojo) and the D.W. 2 (Michael Oladeji) did not go beyond the fact of purchase of the disputed land beyond its purchase from Asha family and that the appellant has exclusive possession.
In view of the foregoing the learned counsel for the appellant urged the court to allow the appeal.
In response, Chief Taiye Omonijo, the learned counsel for the respondent submitted, that with the admission in evidence of the plaintiffs/respondent’s deed of conveyance (Exhibit A) on the 30th day of September, 2003 by the trial Court, he (the plaintiff/respondent) has established the genuineness of his title to the land in dispute as it was validated by the defunct Government of Ondo State.
He equally pointed out that there is evidence that the respondent was and is still in physical possession. He argued that since the respondent is in possession of the land in dispute, he could successfully maintain an action in trespass against the appellant and relied on the cases of ADESHOYE v. SHINWONIKU 14 WACA 86 AT 87; KAI TONGI V. SULAIMAN KALIL 14 WACA 331; S. OYETONA & 2 ORS V. THOSA AJANI (1959) WNLR 212 AT 219; AWOONER RENNER V. J. E. ANIYAN & ORS. 2 WACA 258.
The learned counsel for the respondent argued that the appellant could not successfully lay claim to the ownership of the land in dispute since he did not file any counter claim particularly in the amended statement of defence. The respondent’s counsel emphatically pointed out that since it was clear from exhibit E (the survey plan) on which the appellant pitched his authority on ownership of the land in dispute that it contains a warning that “it is no guarantee of the applicant’s title to the land” he ought to have known that it is just a mere building plan which does not confer ownership or to title to the land as a deed of conveyance does. He equally pointed out that the appellant, from available evidence, was not in factual or constructive possession of the land in dispute at the initiation of the instant case. He relied on the trite principle that a person suing for damages for trespass must prove a present possessory title in the land which is the subject of the alleged trespass. He submitted that in the instant case that the respondent did not only have a deed of conveyance (Exhibit A – being evidence of title to the land in dispute) but he was also in possession by virtue of the evidence of all his witnesses.
The learned counsel for the respondent reiterated that from the available evidence, it is clear that the respondent was in undisturbed possession before the institution of the instant action by the appellant. He emphasized that the fact of undisturbed possession is the condition the law requires and contended it is present in the evidence before the trial court, it was proper that the learned trial Judge, in the interest of justice, gave judgment to the respondent.
As regards the first issue which relates to the title to the land in dispute, I have carefully considered the Amended Statement of Claim, the Amendment Statement of Defence, the supporting evidence and more importantly the briefs of argument in behalf of the appellant and the respondent, I am satisfied that the case of the respondent is more pungent in the determination of the party who has a bitter title than the other. It is common ground that where a claim for trespass is coupled with a claim for an injunction, as in the instant case, the title of the parties to the land in dispute is automatically put in issue. It is the duty of the claimant/plaintiff where there is a rival claim by the defendant to prove his title to a defined area to which the declaration can be attached, with certainty. Better still a valid certificate of occupancy or a deed of conveyance is prima facie evidence of title to the land in dispute.
It is trite that in order to establish title to land any proof of one of the five ways is sufficient as each of them stands or falls on its merit. One of the ways pleaded does not need, in the case of failure to prove it, the support of another one not directly pleaded as the root of title. See IPUNDUN V. OKUMAGBA (1976) 10 SC 227; AWENI & ANOR V. OLORUNKOSEBI & ANOR (1991) 7 NWLR (PART 203) 336 AT 344; ONWUGBUFOR V. OKOYE (1996) 1 SCNJ 1 AT 20.
The five ways of proving ownership or title to land are as follows:
1. Traditional evidence, see Section 45 of the Evidence Act, ADEDIBU V. ADEWOYIN ]3 WACA 191 AT 192.
2. Production of documents of title which must, of course, be duly authenticated in the sense that their due execution must be proved unless they arc produced from proper custody in the circumstances giving rise to the presumption in favour of due execution in the case of documents 20 years old or more at the date of the contract. See Section 130 of the Evidence Act and JOHNSON V. LAWANSON (1971) 1 ALL N.L.R. 56. The document must relate to title.
3. Acts of persons claiming the land such as selling, leasing or renting out all or parts of the land or fanning on it or a portion of it are also evidence of ownership provided the acts extend over a sufficient length of time and are numerous and positive to warrant the inference that the person is the true ownership. See EKPO V. ITA (1932) 11 NLR 68.
4. Acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece of land with deference to which such acts are done. See ONYEKA ONWU V. EKWUBIRI (1966) 1 ALL N.L.R 32; OYEYIOLA V. ADEOTI (1973) N.N.L.R 10 and ADEGBOLA V. OBALAJA (1978) 2 L.R.N 164.
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See Section 46 of the Evidence Act, IDUNDUN & ORS. V. OKUMAGBA (supra); ATANDA V. ADANI (1989) 3 NWLR (PART III) 511 and ANY ANWU V. MBARA (1992) 5 NWLR (PART 242) 381.
In view of the pleadings and the supporting evidence of the plaintiff/respondent, it is not in doubt that he (the plaintiff/applicant) relied solely on exhibit A (the deed of conveyance) as his source of ownership. I have considered the circumstances of Exhibit A and I am satisfied that it was duly authenticated and executed without room for faulting it not even by the appellant.
The appellant in his Amended Statement of Defence attempted to establish a better title of ownership of the land in dispute by relying on one of the five ways of establishing land ownership enumerated above that is by way of inheritance pleaded by his paragraphs 16 and 22 (supra). The two paragraphs (supra) pleaded particularly that the land in dispute is the inherited propely of the defendant and his siblings. This mode of establishing ownership of land is one of the five ways set out above but it cannot be established by mere assertion but in strict compliance with the accepted norms of establishing traditional history or traditional evidence. See Section 45 of the Evidence Act 2004 which is to the effect that where the title or interest in family or communal land is in issue, oral evidence of the family or communal tradition concerning such title is relevant. See DIKE & ORS. V. OBI NZEKA .11& ORS. (1986) 4 NWLR (PART 34) 144 AT 158.
Traditional evidence or history is evidence, albeit admissible hearsay, as to rights alleged to have existed beyond the time of living memory proved by members of the family or community who claim the land, subject of dispute as their own. It can equally be described as ancient history. One of the principles of traditional history is that where the line of succession is not satisfactorily traced in an action for declaration of ownership of land or title and that line of succession has gaps and mysterious or embarrassing linkages which are not explained or established such line of succession would be rejected.
It is also part of the principles of traditional history that once a party pleads and traces the root of his title to a particular person or family, he must establish how that person came to have title vested in him. He cannot ignore proof of his overlords and rely on long possession. It is equally pertinent to state that where there are conflicts in the evidence given by the witnesses called by the same party. Since traditional history is fought on hearsay upon hearsay, the trial Judge is duty bound to find which of the two conflicting histories is more probable by testing it against the other evidence in the case. It is only when he can neither find any of the two histories probable or conclusive that he would declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession or actual user. See MOGAJI V. CADBURY NIG. LTD. (1985) 2 NWLR (PART 7) 393; KOJO II V. BONSIE (1957) 1223; THOMAS V. HOLDER 12 WACA 78; DA COSTA V. IKOMI (1968) I ALL N.L.R 394; OWOADE V. OMITOLA (1988) 2 NWLR (PART 77) 413.
I emphasize, in respect of title based on traditional history, that all the claimant or party needs do to prove his title by conclusive and cogent evidence of tradition. See IRJRI V. ERHURHOBARA (1991) 2 NWLR (PART 173) 252; DIKE V. OKOLOEDO (1999) 10 NWLR (PART 623) 359.
I repeat that the respondent appeared to have established the fact of ownership and/or title to the land in dispute through Exhibit A and the survey plan attached to it.
As regards the survey and the receipt marked Exhibit D, I wholly agree with part of the judgment of the learned trial judge expressed on page 88 of the record of appeal (already reproduced) that there are discrepancies on the evidence given by the respondent on the survey plan and the receipt because the evidence given on them are at variance from the pleadings filed. The law is trite that in a situation of this nature (discrepancies in evidence) such evidence goes to no issue and I also discountenance the survey plan and the receipt. What then is the effect of want of survey plan when there is a duly executed deed of conveyance in establishing ownership or title to the land in dispute? It is settled that in a claim for declaration of title to land, damages for trespass and an order of injunction, a satisfactory proof of the identity of the land in dispute through a survey plan is a sine qua non or by describing the land in dispute in his pleadings in such a clear manner that a surveyor could from it draw an accurate survey plan.
In the instant case, I have already held that there is no functional survey plan. I am, however, satisfied that Exhibit A, a deed of conveyance which is by itself a recognized mode of proving title to land contains, in lucid language, that Mr. John Akinloye and Mr. Ibidapo Ogunsanya who, at the time of executing the said deed (Exhibit A) were the head and representative respectively of Asha family of Okesha sold the land situate at Plot 9 Block A along Iyin Road Ado Ekiti, in the defunct Ondo State containing an area of 694.20 square yards with its abuttals and demarcated by survey pillars BK 3142, BK 3143, BK 3144 and BK 3145 to Mr. Lawrence Sunday Awe (the respondent) and his heirs in 1975 on the payment of the sum of N300.00. Exhibit A states further that the sale was a proper conveyance of the land having being executed according to law.
Paragraph 25 of the Amended Statement of Claim (supra) has strengthened Exhibit A by describing the boundaries of the land in dispute and on which the items of evidence adduced by the respondent were based and his witnesses were not contradicted by the appellant.
From the available evidence in this case the two parties knew precisely the disputed land and having being satisfied with the descriptions thereof, absence of a survey plan is, in my view, inconsequential.
It will be recalled that the appellant essentially based his title to the land in dispute on traditional evidence. I have already dealt with circumstances under traditional evidence that will establish a title to land or ownership of land. The traditional evidence adduced by the appellant and in his behalf was inchoate as it only stopped at Asha family without stating how Asha family acquired the land in dispute. Such evidence in order to qualify as a reliable traditional testimony, the person who relies on it must plead the name or names of the founder of the title and those after him or them, the persons the land devolved to the last successors without having any gaps. In the instant case, a careful appraisal of the appellant’s case showed that the appellant did not sufficiently plead the name of founder. The available evidence is that the land in dispute was bought from Asha family of Okesha Quarters in Ado Ekiti without stating any particular person in Asha family as the founder of the land in dispute or from whom it was acquired. None of the witnesses for Asha family stated that the disputed land which was a virgin land was cleared by their forebearers and assumed initial ownership. Want of such evidence in the case of the appellant’s assertion created a mysterious gap which is fatal to his case.
The appellant’s reliance on exhibit E does not confer any title on him. This is so because there is a patented warning in it (Exhibit E) that is to say a building plan of Mr. James Fayemi who was the deceased father of the appellant by the Ekiti Central Area Planning approving authority that the plan is not guarantee of the appellant’s title to land.
In view of the foregoing, I am of strong opinion that the respondent adduced more cogent and preponderant evidence than that of the appellant. I agree with the trial Judge and also declare that the respondent is entitled to statutory right of occupancy of the land in dispute. I accordingly resolve the first issue adumbrated by me from the first four issues of the appellant in favour of the respondent.
The fifth issue which is Issue No.2 in this appeal deals with whether the trial court was in error to have granted a relief which was not claimed by the respondent.
I have carefully considered the submissions of the learned counsel for the appellant and the respondent. I agree with part of the sumptuous submissions of the learned counsel for the appellant that the respondent in his Amended Statement of Claim did not include a claim for a declaration of title to the land in dispute as it was in the Statement of Claim simpliciter. Such omission means that a declaration of title to the land in dispute as a principal relief of the respondent is no longer relevant.
What then is the probative value of the order of declaration of statutory right of occupancy made in favour of the respondent. It is now clear from the available evidence of the trial Court and pungent submissions of the learned counsel for the respondent that the respondent is the rightful and/or legal owner of Plot 9 Block A at Asha family layout along Iyin Road Ado Ekiti. In effect the respondent has been able to establish the principal relief that he is the owner of the disputed land. In these circumstances, the law allows the trial Court to invoke the doctrine of consequential order and award it to a person with better title.
A consequential order is an order founded on the claim of the successful party. A consequential order is also an order which flows necessarily, naturally, directly and consequentially from a decision or judgment delivered by a Court in a cause or matter. It arises logically and inevitably by reason of the fact that the order in question is perforce obviously and patently consequent upon the decision given by the Court and did not need to be specifically claimed as a distinct or separate head or item of relief.
It is pertinent to also state that the purpose a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or improper relief which was not contested by the parties at the trial and neither did it fall in alignment with the original relief’s claimed in the suit nor was it in contemplation of the parties that such relief would be the subject matter of a formal order particularly when the recipient has not established it. See AKINBOBOLA V. PLISSON FISKO NIG. LTD. (1998) 1 NWLR (PART 167) 270; OBAYAGBONA V. OBAZEE (1972) 5 SC 247; LIMAN V. MOHAMMED (1999) 9 NWLR (PART 617) 116; AWONIYI V. REGISTERED TRUSTEE OF AMORC (2000) 10 NWLR (PART 676) 522 AT 550.
Where, however, a Court refuses the principal relief sought by the plaintiff an incidental or consequential order cannot be made. This is so because the principal order from which a consequential order is to be sourced having being refused, there is no basis for making it. In the instant case, it is common ground that the respondent has established the principal relief that he is the owner of the land in dispute from which the fact or ownership naturally flows.
In view of the foregoing principles on consequential order there is basis for the award of the seemingly vexed order against which the learned counsel for the appellant vociferously argued that it, (the declaration of title to the land in dispute) ought not to have been granted by the trial Court. It is apparent from the circumstances of the instant case that the trial Court made it because one of the principal reliefs (trespass on the land of the respondent) was established and allowed. All that the trial Court did in making a declaration that the respondent is entitled to statutory right of occupancy of Plot 9 Block A at Asha family layout along Iyin Road Ado Ekiti, although not claimed as a relief by him, is that it flowed naturally and directly from the judgment given in his favour and it is indeed to give effect to the decision of the trial Court in addition to one of the principal reliefs of perpetual Injunction sought and adjudged in favour of the respondent.
In retrospect, the two issues which the Court raised from the five issues adumbrated by the appellant are resolved seriatim in favour of the respondent against the appellant.
In the final analysis, there is no merit in the appeal and it is accordingly dismissed. I award costs of N30,000.00 to the respondent against the appellant.
Other Citations: (2009)LCN/3337(CA)
