Omosule Olisa V. Chief Olowodara Asojo (2001)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

In the writ of summons issued from the Ondo State High Court, Owo Judicial Division holden at Owo, the plaintiff/respondent sued for himself and on behalf of Ubara family of Ipele and claimed the following reliefs against the defendant/appellant (also for himself and on behalf of Amologunde family of Ipele) :-

(a) Declaration that the plaintiff is entitled to a customary right of occupancy in respect of the piece or parcel of land situated and being along Omiekan/Oma-Afoto Road Ipele via Owo.

(b) N2,000 damages for trespass committed and being committed by the defendant on the plaintiff’s said land.

(c) An injunction restraining the defendant, his servants and or agents from committing further acts of trespass over the plaintiff’s said land.

Pleadings were filed and exchanged with the plaintiff filing a reply to the statement of defence. The matter finally went to trial on 22/2/94. The Plaintiff testified in person and called three other witnesses before closing his case. Three witnesses testified for the defence with the defendant testifying as DW3. After the parties and their witnesses had finished testifying and were cross-examined, their counsel addressed the court and judgment was delivered on 12/5/94. The plaintiff succeeded in his claim and all the reliefs he sought in the writ were granted to him. He was awarded N500 general damages for trespass committed by the defendant. The plaintiff was further awarded N500 costs. The defendant is dissatisfied with the judgment and has appealed to this court in which he filed 4 grounds of appeal together with the notice of appeal and formulated four issues from the grounds filed.

The issues raised are:-

(1) Whether the High Court had jurisdiction to adjudicate on the matter before it having regard to the provisions of the Land Use Act 1978, particularly sections 39 and 41 thereof.

(2) Whether the land in dispute has been described with certainty.

(3) Whether the plaintiff’s root of title had been proved to the satisfaction of the court

(4) Whether there has been material variance and contradictions between the plaintiff’s pleading and evidence before the court.

The respondent did not formulate any issue for our determination. He merely agreed with the appellant that the High Court lacked jurisdiction to hear and determine the matter and urged us to allow the appeal but make an order remitting the case to Owo Customary Court for hearing and determination de novo.

The Supreme Court has finally settled the issue of jurisdiction where the claim involves a customary right of occupancy as it relates to sections 39 and 41 of the Land Use Act vis-a-vis section 236(1) of 1979 Constitution (which gives the High Court of a State unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right etc is in issue. See: Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116.

By this decision, the State High Court now exercises concurrent jurisdiction with the Area and Customary Courts to decide land matters subject to customary right of occupancy granted by a Local Government under the Land Use Act.

Thus Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122 has been overruled. A consideration of Section 272(1) of 1999 Constitution may however produce a different result since it is differently worded and the unlimited jurisdiction clause has been removed. This is by the way and certainly does not affect this appeal which was filed before the promulgation of the 1999 Constitution. Issue No. 1 is resolved in favour of the High Court having jurisdiction to adjudicate on the claim. The concession made by the respondent asking this court to allow the appeal and to order a retrial before the Owo Customary Court cannot stand and the appeal will be determined on its merit.

The second issue deals with whether the land in dispute has been described with certainty. Learned counsel for the appellant referred to the respondent’s pleading as to the boundaries of the land and his evidence in-chief and that of PW3 and PW4 and the size of the land where the respondent claimed the land is about 2 kilometers long and PW4 described it as extensive and surrounded by streams while PW2 said he did not know the land in dispute and PW3 did not know the size of the land and argued that although it is not compulsory that the land to be ascertained must be surveyed, the test is whether a surveyor can from the record produce an accurate plan of such land and relied on Daniel E. ldehen v. David Ehigie Osemwenkhae (1997) 52 LRCN 2245 at 2271; (1997) 10 NWLR (Pt. 525) 358 SC. He argued that the respondent and his witnesses did not know the size of the land in dispute and they gave conflicting descriptions of the boundaries and submitted that the first duty of a plaintiff who comes to court to claim a declaration of title to land is to show the court clearly the area of land to which his claim relates and such land must be identified with accuracy and if it is not so ascertained, the claim must fail and it must be dismissed. The following cases were cited in support: Okosun Epi & 1 or v. Johnson Aigbedion (1975) UILR (Pt.II) 157, (1972) 10 SC 53; Markus Nwoke & Ors v. Ahiwe Okere & Ors (1994) 17 LRCN 123, (1994) 5 NWLR (pt.434)159 and ljama Otika Odiche v. Ogah Chibugwu (1994) 21 LRCN 54, 19947 NWLR (Pt. 354)78. He urged the court to allow the appeal on the second issue raised.

The 3rd and 4th issues were argued together. Learned counsel referred to paragraphs 3 and 4 of the statement of claim where the respondent averred that his grandfather was the one who first acquired the land in dispute but the respondent’s brother PW3 stated in evidence that their grandfather inherited the land in dispute from their ancestors which is different from their grandfather being the original settler. He contended that it is not sufficient for a party who relies for proof of original title to land on tradition to merely plead that his predecessors in title had owned and possessed the land in dispute from time immemorial without more. Material and necessary facts to sustain such a claim must be clearly averred and proved. He went on to argue citing Nelson Nwosu Onwugbufor & ORS v. Herbert Okoye & Ors (1996) 34 LRCN 1, (1996) 1 NWLR (Pt. 424) 252; Alade v. Lawrence Awo (1975) 4 SC 215 at 225 that material and necessary facts are not established by sweeping and vague assertions that the land in dispute is owned by the plaintiff from time immemorial or from time beyond human memory without further details. Such sweeping assertions he submitted, leave the traditional evidence at large and in the air which can be fatal to a plaintiff’s case if they are the only root of title relied on – See Alade v. Lawrence Awo supra. He went further to submit relying on Adewale Alabi Eboade & 1 Other v. Raufu Olaniyan Atomesin (1997) 50 LRCN 1133, (1997) 5 NWLR (Pt. 506) 590 that where a party pleaded settlement but led evidence showing grant the said pleading relating to settlement would be regarded as abandoned while the evidence relating to grant would go to no issue as it was not pleaded and where evidence is materially at variance with the statement of claim and there is no amendment, the claim must fail – Bowale Bale Maya & Anor v. Oyekan Oloolo (1975) 1 NMLR 310. He finally urged this court to allow the appeal and set aside the judgment of the lower court and instead dismiss the plaintiffs claim.

A plaintiff who claims a declaration of title to land must show the court clearly the area of land to which his claim relates and the boundaries thereof. See Kwadzo v. Kwashi Adjei (1944) 10 WACA 274; Amata v. Udogwu Modekwe & Ors (1954)14 WACA 580; Ichu v. lbezue (1999) 2 NWLR (Pt. 591) 437; Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544. And if the location and size of the land is in issue, the plaintiff must prove the exact location and the area being claimed: Salami v. Gbodoolu (1997) 4 NWLR (Pt. 499) 377; Idehen v. Osemwenkhae (1997) 10 NWLR (Pt.525) 358. His root of title must also be ascertained: Ekpo v. Ita (1932)11 NLR 68; Alade v. Awo (1975) 4 SC 215; Dike v. Okoledo (1999) 10 NWLR (Pt. 623) 359.

The land must be so described that the court will be certain and a surveyor would have no problem identifying its co-ordinate monuments – Kwadzo v.Adjei supra at 274; Ezeokeke v. Uga (1962) 1 All NLR 482; Onotaire v. Onokpasa (1984) 12 S.C. 95.

Proof of the identity of the land in dispute is sine qua non to establishing a case of title to land. See: Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182 at 194; Agbonifo v. Aiwerioba (1988) 1 NWLR (Pt.70) 325; Olusanmi v. Oshasona (1992) 6 NWLR (Pt. 245) 22 at page 67; Odiche v. Chibogwu (1994) 21 LRCN 54, (1994) 7 NWLR (Pt.3 54) 78.

And since there is also a claim for injunction there must be proof of exclusive possession – Uchendu v. Ogboni (1999) 5 NWLR (Pt. 603) 337.

It is necessary to examine the pleadings and the evidence led to see if the respondent who instituted the action proved his case to entitle him to the declaration of title to the disputed land. In paragraphs 3,4,6,9,11, 13,20 and 23 of the statement of claim the plaintiff averred as follows:-

3. The farmland which is the subject matter of this suit is situate and lying at Omiekan/Oma-Afoto Road. Ipele via Owo a place which is within the Owo Judicial Division was acquired in accordance with native law and custom by the grandfather of the plaintiff, Atiba Olokun for farming purposes about two hundred years ago.
4. The plaintiff avers that the time his grandfather called Atiba Olokun first acquired the land in accordance with native law and custom, it was virgin bush which he cultivated and made farm thereon.
5. The plaintiff avers further that after the death of his grandfather, his father called Asojo together with one Alofun who was a junior brother to Atiba Olohun (sic) were farming on the farmland.
6. Sometime in 1971 plaintiff granted part of the land in dispute to some Igbira for farming and the Igbira planted food crops such as yams, cassava and cocoyam on the said land.
7. Sometime in May 1986, the defendant without the consent, authority and or permission of the plaintiff of (sic) his family trespassed into the land in dispute and uprooted palm tress indiscriminately for tapping palmwine for sale.
8. The plaintiff avers that when he discovered the act of trespass referred to in paragraph 11 above. He challenged the defendant and reported him to some members of their native age-group at Ipele, who advised the defendant not to go to the farmland to fell palm trees for palm wine.
9. The farmland in dispute is bounded as follows:-

(a) On the 1st side by the farmland of Daniel Oloye

(b) On the 2nd side by Sensensen Stream

(c) On the 3rd side by Omah stream, and

(d) On the 4th side by Omi Ekikan Omah Road.

23. The plaintiff avers that he and other members of his family have since the time the farmland was first acquired by his grandfather, exercised all acts and may (sic) acts of ownership and possession on the land in dispute.”

Apart from paragraphs 1 and 2 of the statement of claim the defendant denied all other averments and contended in paragraphs 3,4,5,6,8 and 13 of the statement of defence as follows:-

“3. In further answer to paragraph 3 of the plaintiff’s claim the defendant states as follows:-

(a) The farmland which is the subject matter of this suit is situated, lying and being at UGBOYE at Ipele via Owo

(b) Omiekan is at Ugboye while Oma stream is at Afoto.

(c) Afoto which forms a boundary with the defendant belongs to the Oloten family though the said Oloten granted part of the said land at Afoto to the plaintiff’s family.

4. In further answer to paragraph 20 of the plaintiff’s statement of claim, the defendant avers that the land in dispute is bounded as follows:-

(a) On the 1st side by Ugbodundun

(b) On the 2nd side by Oshogbo road

(c) On the 3rd side by Oloten and the plaintiff’s family land

(d) On the 4th side by Ologunloma the father of Daniel Oloye’s family land.

5. The land in dispute was granted to the defendant’s ancestor late Amologunde by Oloten the head of the Ujan Community about 200 years ago, Amologunde begat Ariyesalu the grand mother of the defendant.
6. After the death of Amologunde, his son Olomabuwa died, Adene succeeded him, after the death of Adene, Aiyetan and after him Amos Uyinbo succeeded him all as head of the land in dispute.
7. The plaintiff in 1986 took Chief Oloti Isijola of Ujan community to court over the land at Afoto clamming general damages at the Owo grade II Customary Court.
8. The defendant will contend that the action of the plaintiff who is OMIEKANIOMA-AFOTO amounts to double standard for the following reasons:-

(a) The defendant at no time lay claim to Afoto which belongs to Oloten family

(b) The plaintiff’s action against Chief Oloten was withdrawn with an understanding that Afoto camp belongs to Oloten family and that although a portion of the land had been granted the plaintiff’s family, the plaintiff should still recognise the over lordship of Afoto Camp by Oloten family.

(c) The plaintiff’s action amount (sic) to getting through the back door what he has not been able to get through the front door.”

Issues were joined as to the root of title and description of the disputed land. It is necessary to ascertain whether the size of the land as described by the plaintiff is the same as that contained in the statement of defence. The defendant traced his root of title to Oloten and even alleged in paragraph 13(a) that the land at Afoto which he is not contesting belongs to the Oloten family who had given part of it to the plaintiff. This pleading notwithstanding, the plaintiff still has the burden to prove his root of title and the exact area over which he is laying claim to.

The plaintiff/respondent testified as PW 1, his half-brother Johnson Ashojo as PW3 and one of their tenants, Musa Atah as PW4. While PW4’s evidence tallies with that of PW1 on the boundaries of the disputed land, that of PW3 differs on one of the boundaries which is whether the disputed land is bounded by Afoto Road or Daniel Oloye’ s farmland. A second discrepancy concerns the lineage and the person who actually cleared the land and started cultivating it. Was it Atiba Olohun the grandfather of PW1 and PW3 as stated by PW1 or the ancestors of Alofun the great grandfather of PW1 and PW3 as claimed by PW3? The learned trial Judge explained the discrepancy in the evidence between PW1 and PW3 on one of the boundaries as a slip occasioned by the illiteracy of PW3. The inference drawn by the learned trial Judge is not borne out by the records. The proper person who could have given the explanation would be Daniel Oloye who should testify that Afoto Road is on the same side of the disputed land as his own farmland. This would have made the boundaries of the land to be very certain which could enable a surveyor to produce a plan from the record. I do not consider this discrepancy as a mere slip as the learned trial Judge tended to describe it.

The plaintiff’s root of title is another area of concern. There is a discrepancy in the evidence of PW1 and PW3 concerning the person who first cleared the land. While PW1 maintained it was their grandfather, Atiba Olohun (Olokun) who first cleared the land, PW3 on the other hand says it was one of the ancestors who preceded their great grandfather Alofun but PW1’s version was that Alofun was a junior brother of their grandfather who inherited the land with their father Ashojo after the death of Atiba Olohun. Hence, there is no certainty as to who of their ancestors actually cleared the land and started farming on it. Regrettably, the plaintiff could not establish the root of title and describe the land with certainty so as to entitle him to a declaration of title and injunction. The plaintiff should succeed on the strength of his case and not on the weakness of the defence. See Kodilinye v. Odu (1935) 2 WACA 336. The defendant has no burden cast on him to prove his own title if he does not counterclaim for same:- Oshoboja v. Dada (1999) 12 NWLR (Pt. 629) 102.His claim ought to have failed and accordingly dismissed. Since the defendant did not counter-claim title cannot be decreed in his favour either. See: Oshoboja v. Dada supra at p. 118.

This appeal succeeds and it is hereby allowed. The judgment of Ajakaiye J. in Suit No. HOW/32/87 delivered on 12th May, 1994 is hereby set aside. The declaratory relief of title and injunction ought to have been refused and are hereby refused. In their place, the plaintiff/respondent’s case is hereby dismissed. The damages and costs awarded in the lower Court if paid should be refunded to the defendant/appellant. I assess costs in the lower court at N2,000.00 and in this court at N3000.00 in favour of the defendant/appellant against the plaintiff/respondent. This appeal was heard on the briefs filed in accordance with Order 6 rule 9(e) Court of Appeal Rules 1984 (as amended) since respondent’s counsel was absent on the date the appeal was fixed for hearing even though served with hearing notice.

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Other Citations: (2001)LCN/1024(CA)