Salisu Bada Irawo-osan & Anor. V. Chief J. O. Folarin (2007)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The Appellants as Plaintiffs instituted an action at the High Court, Abeokuta, Ogun State, wherein they claimed – a Declaration that they are the Customary Owners and are entitled to a Statutory Right of Occupancy of the two plots of land situate and being at Ganiyu Lamina Street, Pejuola, Idi Aba, Abeokuta”;

Perpetual Injunction; and N50,000.00 as damages for trespass Committed. The Appellants traced their ownership of the land in dispute to Pa Amodu Ejalonibu, who had only one daughter – Madam Rukuyat, and they averred as follows in paragraph 7 – 9 of their Statement of Claim dated 24th March 1998-

7. Upon the death of Pa Amodu Ejalonibu, the ownership of the large expanse of land – – including the two plots passed to Madam Rukayatu –
8. Madam Rukayatu Ejalonibu on her first marriage, married Pa Bosobo of Ikopa Village and begat John Bosobo.
9. Madam Rukayatu later divorced Pa 8osobo and married Pa Koleoso of Bada Compound, Isale Itoko, Abeokuta and begat Yusuf Irawo-Osan.

The Defendant (Respondent herein) filed an original “Statement of Defence and Counter-Claim” dated 10th September 1998 wherein it was averred that-

6. The Defendant denies paragraphs 8 – 10 of the Statement of Claim and states that Madam Rukuyat contracted only one marriage throughout her lifetime.
7. That further to paragraph 6 above, the Defendant states that Madam Rukuyat was married only to Pa Bosobo of Ikopa, Abeokuta to whom she begat John Bosabo.
8. That Madam Rukuyat never married Pa Koleoso nor gave birth to Yusuf Irawo-Osan. (Italics mine).

The Respondent repeated the same averments in paragraphs 6 – 8 of his Amended Statement of Defence and Counter-Claim dated 23rd October 1998. The Appellants then amended their pleadings and the Appellants again averred in paragraph 7 of the Amended Statement of Claim dated the 7th of October 1998 that Madam Rukayatu’s first marriage was to Pa Sosobo of Ikopa Village, and they further averred as follows in paragraph 8 thereof-

“The Plaintiffs aver and confirm that contrary to the averment of the Defendant, Madam Rukayat after she had begotten John for Pa Bosobo – – entered into a second marriage with Pa Koleoso…”. (Italics mine).

The Respondent dropped his Counter-claim, and in the “Second Amended Statement of Defence” dated 10th January 2000, it was averred as follows-_

6. The Defendant contrary to paragraphs 8 and 9 of the Amended Statement of Claim states that Madam Rukuyat did not contract any marriage with Pa Koleoso neither did Madam Rukayat begat Yusuf Dada Irawo-Osan and Olubo nor was she buried at Bada Compound, Isale- Itoko, Abeokuta.
7. The Defendant states that Pa John Bosobo during his lifetime did not stay at Isale-Itoko or Bada Compound with Pa Koleoso and Madam Rukuyat or anyone whatsoever at Isale-Itoko.
8. That Madam Rukayat during her lifetime was married only to Pa Bosobo of Ikopa and begat John Bosobo (Italics mine).

At the trial that ensued, four witnesses testified for the Appellants, including the 2nd Appellant, who testified as PW1 on the 10th of April 2000, and said-

“Madam Rukayatu divorced- – and she married one Pa Bosobo. She begat one issue namely John Bosobo. Pa Bosobo died and Madam Rukuyat returned to Chief Koleoso’s house with John Bosobo. Yusuf Irawo-Osan, Olubo and John Bosobo are of the same mother. Madam Rukayat died at Chief Koleoso’s house – – and she was buried there.”.

The matter was adjourned to the 25th of April 2000 for his cross-examination.

Before that date, the Appellants filed a “Reply to Amended Statement of Defence” dated 18th April 2000 wherein it was averred as follows-

7. Madam Rukayat on her first marriage married Chief Koleaso at Isale Itoko, Abeokuta and begat Yusuf Bada Irawo-Osan and Olubo.
8. The Plaintiffs aver that after Madam Rukayat had begotten Yusuf Bada Irawo-Osan and Olubo for Chief Koleoso, she divorced and entered into a second marriage with Pa Bosobo at Ikopa and there begat John.
9. The Plaintiffs say further that both Yusuf Bada and Olubo were two senior brothers to John.
10. It was an established fact that after the death of Bosobo, Madam Rukayat again went back to settle with her first husband, Chief Koleoso.

11.The Plaintiffs aver further that Madam Rukayat while going back to settle with her first husband, Chief Koleoso, she took John Bosobo along with her, thus making John an adopted son of Pa Koleoso. (italics mine).

Under cross-examination on the 25th of April 2000, the 2nd Appellant replied-

“I did not tell my lawyer that Madam Rukuyat first married Bosobo, reference paragraph 8 of the Statement of Claim filed on 26/3/98 (sic). I did not tell my lawyer as stated In paragraph 7 of the Amended Statement of Claim filed on the 8th October 1998 that Madam Rukuyat first married Bosobo”.

The trial continued with the evidence of the Appellants’ three other witnesses. Thereafter, the Respondent testified as DW1 and called two other witnesses including John Bosobo’s daughter, Bosede Ejire Iyabode Alabi, who testified as DW3 that her grandmother, Rukayatu married only Bosobo in her lifetime. At the close of trial, the Appellants filed an Application, which prayed for-

1. LEAVE- – to amend the writ of Summons by joining the Governor of Ogun State as the 2nd Defendant in this Suit.
2. LEAVE- – to add a claim to set aside the Certificate of Occupancy No. 00002146 dated 1st January 1980 issued to the 1st Defendant by the 2nd Defendant.
3. LEAVE- – to amend the Statement of Claim already filed in the suit in the manner contained in the proposed amended Statement of Claim.

The learned trial Judge, Hon. Justice Y. A. Adewolu, in his Ruling delivered on the 25th of October 2000, held that the “Application was brought mala fide and it is aimed at overreaching” the Respondent and it was therefore refused. The Appellants filed another Application dated 12th February 2001, praying for “leave to recall the Defendant to testify further in this case”. Adewolu, J., dismissed the Application in his Ruling delivered on the 7th of March 2001 on the ground that it would amount to giving them a second bite at the cherry. Learned counsel thereafter addressed the Court and in his Judgment delivered on the 28th of June 2001, the learned trial Judge pointed out the contradictions in the Appellants’ pleadings and noted that “no reason was adduced on the turn about evidence”. He held that the evidence they led on traditional history of customary ownership of the land in dispute is unreliable, and found the history inconclusive. He concluded as follows @ p. 104 –

“It is not permissible to substitute a root of title which has failed with acts of possession which should have derived from the root. – – That leg of the claim for declaration – – is dismissed. On – – injunction, It is my view that though the land in dispute is known to both parties, the Plaintiff did not clearly define the area of land in – – which injunction is sought. – – The claim for injunction must apply to a clearly defined area, the claim for injunction in this case also fail. – – In view of my earlier findings – – the claim for damages – – also fails. In the result, the Plaintiffs’ claim fails on legs 1, 2, & 3 and is accordingly dismissed”.

Dissatisfied, the Appellants appealed to this Court with a Notice of Appeal containing 5 Grounds of Appeal and in their Brief of argument prepared by M. A. Taiwo, Esq., they submitted that the Issues for Determination are-

(a) Whether the lower Court properly considered the uncontroverted evidence of traditional History of PW1 & PW2 regarding the relationship of the Plaintiffs with John Bosobo through Madam Rukayat.

(b) Whether the lower Court properly evaluated the evidence of partition of the land in dispute and the acts of possession as established by PW1, PW3 & PW4.

(c) Whether the lower court was right in rejecting the letter of PW4 by which she sought for the permission of PW3 to use the land in dispute.

(d) Whether the lower Court was right to have relied on the contents of the Amended Statement of Claim, which was not granted.

(e) Whether the lower Court was right in given (sic) ownership of the land in dispute to the Defendant who relied mainly on purchase but failed to tender any evidence of purchase before the Court.

(f) Whether the lower Court was right in rejecting Exhibit ‘C’, the Deed of Conveyance by which DW3 sold the land in dispute to the Defendant in 1977 after the death of her father, John; and for refusing the Application to recall the DW3 for the purpose of impeaching her on her earlier evidence.

The Respondent adopted the Appellants’ Issues in his own brief of argument prepared by Tunde Elemide & Co. However, it is my view that the issues can be subsumed and easily resolved by answering the question – whether, in the circumstances of this case, the lower Court was right to dismiss the claims. The Appellants submitted that they were claiming the land in dispute on the basis of traditional History, and acts of possession, citing Idundun v. Okumagba (1976) 1 NMLR 210. It was further submitted that the reason for the variance in their pleadings, “which was made plain to the Court by PW1 but was not recorded”, is that the 1st Plaintiff was over 90 years of age and senile, and he had briefed their counsel before he died that Rukayat, begat his father and Olubo born to Chief Koleoso, and John born to Pa Bosobo, and wrongly told the counsel that the first marriage of Madam Rukayat was to Pa Bosobo, but the 2nd Appellant, who was still young and mentally alert and who did not brief their counsel as he was not around until trial commenced, was able to put the record straight in his evidence as PW1. The Respondent however submitted that the complaint that their reason for the discrepancy in pleadings was not recorded by the lower Court is not sustainable because they should have taken steps to correct the record.

The Respondent is right. A record of appeal is presumed to be correct and accurate, and a party who intends to dispute it must swear to an Affidavit challenging the said record, which would be served on the trial Judge and/or Registrar of the Court and counsel on the other side. In the absence of any formal complaint, an appellate Court and the parties are bound by the contents of the proceedings as presented by the Registrar of the lower Court – see Gonzee (Nig.) Ltd. V. NERDC (2005) 13 NWLR (Pt. 943) 634 SC, & Larmie V. DPMS (Ltd.) (2005) 18 NWLR (Pt. 958) 438, where the Supreme Court added – “parties are bound by the record of appeal and an appellate Court has no jurisdiction to go outside the record In search of evidence”. There is nothing to indicate that the Appellants in this case challenged the record of proceedings in the lower Court, and the record is presumed correct. This Court cannot therefore go outside the record before us to fish for reasons to explain or justify the contradictions in the Appellants’ pleadings. They also contended that the lower Court erred in law by relying on the averments in the Statement of Claim and Amended Statement of Claim and that it should have relied on paragraphs 7, 8, & 10 of their Reply to the Second Amended Statement of Defence, which was filed after the 2nd Appellant corrected the wrong briefing by his aged brother, the 1st Plaintiff. Again, their argument reveals a clear misconception of the use of a ‘Reply’. A Reply to a Statement of Defence is not used to correct a previous pleading. A reply is the Plaintiff’s answer or response to any Issue raised by the Defendant in his defence and which the Plaintiff seeks to challenge, deny or admit or object to and it is not permissible in a reply to a defence “to raise a new ground of Claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same” – see Order 25 rule 11 of the High Court (Civil Procedure) Rules, Oje V. Babalola (1991) 4 NWLR (pt. 185) 267 SC, Adeniji v. Fetuga (1990) 5 NWLR (Pt. 150) 375. The crucial question for consideration where a Plaintiff files a reply is whether the reply is consistent or not with his earlier pleadings – see Ughutevbe v. Shonowo (2004) 16 NWLR (Pt. 899) 300- where the Supreme Court held that the reply must not contradict or “depart” from the Statement of Claim, or it will be a ground for striking out the reply in which the defect occurs.

In this case, not only did the Appellants’ Reply to the Respondent’s pleading contradict their own pleadings, but it cannot be accepted as a “Reply” that is meant to be a response to any issue raised by a Defendant in his defence. The said Reply of 30 paragraphs is a verbatim reproduction of the averments in the Appellants’ Amended Statement of Claim, except for the paragraphs where they departed from their story in the Amended Statement of Claim and averred that Madam Rukuyat married Pa Koleoso first before Pa Bosobo. Obviously, the said Reply was not worth the paper it was written on and should, in fact, have been struck out by the lower Court for being defective. Whatever be the case, the lower Court took the right step in not relying on it. Another issue that is easily resolved is the Appellants’ contention that the lower Court erred when it refused their application to move the Court to both Koleoso’s House and Bosobo’s house. But there is nothing on the Record of Appeal to indicate that such an Application was made not to mention refused, and as I stated earlier, this Court cannot go outside the Record to look into what is not on it. This issue therefore lacks merit, and it fails.

To further clear the bush so that we can see the trees in the forest before us, it must be remembered that the Respondent had initially counter-claimed for a declaration that he “is the person entitled to the grant of Statutory Right of Occupancy” to land in dispute, which he later withdrew when he filed his “second Amended Statement of Defence”, dated 10th January 2000 thus, the lower Court was faced with the Appellants’ claim to the land in dispute only, and the law is emphatic that in a claim for declaration of title, the onus is always on the Plaintiff to establish his claim, and it is not open to him to rely on the weakness of the Defendant’s case – see Adewuyi V. Odukwe (2005) 14 NWLR (pt. 945) 473 SC, where the Supreme Court held that the standard of proof is not different from that required in civil cases generally, except that the burden of proof is on the Plaintiff who is claiming title to prove same, and it never shifts to the Defendant throughout the trial. In this case, the Appellants complained that the lower Court did not look into the certain “weaknesses” in the Respondent’s case, but that is not our concern in this appeal, what we have to consider is whether or not they proved their claim. Now, there are five ways to prove ownership of land – see Idundun & Ors v. Okumagba & Ors (1976) NSCC 445. A party seeking a declaration of title to land is not bound to plead and prove more than one root of title to succeed but he is entitled to rely on more than one root of title. However, where he relies on traditional history, and in addition acts of ownership and long possession predicated on the traditional history as pleaded, he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession where the evidence of traditional history is unavailing – see Ezuchukwu v. Ukachukwu (2004) 17 NWLR (pt. 902) 227 SC & Odi V. Iyara (2004) 8 NWLR (Pt. 875) 283 @ 312, where Tobi, JSC observed-

“In pleading traditional history, the Plaintiff is expected to narrate the genealogical tree from original owner, the ancestor, in generations appurtenant to him, down the line to the Plaintiff – – – A case is made in the pleadings and not on appeal. If pleadings are badly render it a party cannot repair them on appeal to his advantage” (Italics mine).

In other words, a party relying on evidence of traditional history must plead his root of title, and must show who the ancestors were and how they came to own and possess the land and eventually pass it to him, or the claim fails. In this case, the Appellants hinged their claim to the land in dispute on traditional history and acts of possession. There is no dispute as to the fact that Amodu Ejalonibu was the owner of the land in dispute and that he had only one child, Madam Rukayat, who then inherited the land after his death. The point of divergence in the traditional history narrated by both parties is their respective connections to the land in dispute through Madam Rukuyat. The Appellants averred in their Amended Statement of Claim dated 7th October 1998 that Madam Rukayat first of all married Pa Bosobo with whom she had a son – John Bosobo, then she entered a second marriage with Pa Koleoso for whom she had two children – Yusuf Irawo-Osan and Olubo, and after her death, John, Yusuf, & Olubo became heirs to the land in dispute. However, in his evidence as PW1, the 2nd Appellant testified that Madam Rukayat married Pa Koleoso first and later married Pa Bosobo, but after his death she returned to Pa Koleoso’s house where she died and was buried; after her death, Yusuf Irawo-Osan, who was his father, Olubo and John inherited the land and after the death of his brothers, John not only inherited the land but was in possession of the said land comprising of about 15 plots. He further testified that when he was informed that John had started selling the plots of land, he lodged a complaint at Igboni Itoko i.e. Itoko Chiefs, and it was decided that two out of the four plots, which had not been sold, should be given to the deceased 1st Plaintiff and himself, and thereafter John gave him a copy of the layout admitted in evidence as Exhibit A. He further said-

“I have been in possession of the land for about 20 years. As act of ownership, I made dwarf fence on the two plots of land. I put Nasiru Aroyewun and one Shittu in charge to oversee the 2 plots for me”.

PW2 is Alhaji Ambali Sumoila, the Appellants’ cousin who corroborated the 2nd Appellant’s evidence that Madam Rukuyat married Pa Koleoso before Bosobo. PW3 is Alhaji Nosiru Aroyewun, who confirmed that the Appellants handed over the land to him, and that he was still working as Headman, Labourer at the Ministry of Works, Abeokuta, so he gave part of the land out for farming and another to the proprietress of a school as a playing ground. The lower Court rejected the letter the proprietress wrote because it was not signed. However, the said Proprietress of Oba Solomon Nursery and Primary School, Idi-Aba, Abeokuta, testified as PW4 that she noticed that the plot of land in front of her school “was so bushy and was disturbing the atmosphere of the school”, and after inquiries, she was told that PW3 was in charge so she wrote the rejected letter requesting to use the said land as a playing ground. On his part, the Respondent testified as DW1 that he paid N2,000 for the two plots of land he bought from John Bosobo in 1971, which was demarcated by John in the presence of witnesses, including John’s daughter, DW3, who confirmed that she was present when her father sold the land to the Respondent in 1971. DW2 is Clement Malomo Olutayo, who testified that he informed the Respondent that there was land for sale, and that he was there when the Respondent paid for it and John Bosobo demarcated the land.

In accepting the Appellants’ version on this issue, the lower COurt held –

“I believe PWI made no effort to find out if any of the other Chiefs are alive. If he did, I am sure, he would have called at least one of them – to buttress the fact that John Bosobo physically pointed out two out of the remaining four plots yet unsold to him and his brother – and gave to them – Exhibit ‘A’ with ‘Bada’ written on the 2 plots. Though the PWI failed to call any of the Itoko Chiefs – – his evidence that Exhibit ‘A’ was handed over to him by John Bosobo after the 2 plots were allocated to him and – – late 1st Plaintiff stands uncontroverted.”

The lower Court however turned around and held as follows @ p. 102-

The inference I will draw from the available evidence is that John Bosobo was the sole heir of Madam Rukayat and the story of their issues is not convincing to the Court. As earlier observed above, Exhibit ‘A’ is dated 1976 and could not have been handed over to the Plaintiff (p.w.1) in 1975, when the Itoko chiefs asked John to give to the P.W.1 and his late brother two out of the four remaining plots of land. I take it that so much beclouds the history of exhibit ‘A’. For the foregoing reasons, I will answer the question posed above in the negative. I hold that the traditional history of the customary ownership of the land in dispute as fed in evidence by the Plaintiff and his witnesses cannot be relied on. I find the history inconclusive’: (Italics mine).

It went on to consider their claim based on possession and held as follows-

“- – From the evidence of possession vis-a-vis the evidence of identity of the land in dispute and the evidence of traditional history of the land in dispute, has the P.w.1 established his claim by preponderance of evidence, I find that the P.W1 failed to prove the root of title to the satisfaction of the Court and will therefore answer in the negative. – – Where the radical title pleaded is not proved, it is not permissive to support a non-existent root with acts of possession, it is not permissible to substitute a root of title which has failed with acts of possession which should have derived from the root”. (Italics mine).

The Appellants’ contention is that the lower Court’s turn around is a misdirection because their evidence of traditional history, partitioning of the land, and acts of possession were uncontroverted and the Respondent did not “produce a single witness to establish his act of possession even for one day”; that his story and that of his witnesses centered mainly on purchase and he did not even tender a single document to establish even that; that when a witness gives evidence that is not contradicted, it is the duty of a Court to accept it, citing Kosile v. Folarin (1989) 3 NWLR (pt 107) 1; and that it is also settled law that when a Plaintiff has proved his act of possession and his evidence is not controverted, the burden of proving better title lies squarely on the shoulders of the Defendant, citing Adegbite v. Ogunfaolu (1990) 21, NSC (pt 3) 65- Nzekwu v. Nzekwu (1989) 20, NSC (pt 1). Furthermore, that it is also the law that where long possession is proved or established in evidence, the Court will not exercise discretionary right in granting declaration of title to a part not In possession, citing Akpan v, Kooky (1913) 2 NLR 97, & Saidi V. Akinwumi (1956) 1 FSC 107; and even where the Court finds traditional history inconclusive, the Supreme Court says acts of possession should be relied upon, citing Idesoh v. Ordia (1997) 47 LRCN 520.

The Respondent however submitted that the lower court properly reviewed the evidence of the witnesses and put the evidence of the two parties on an imaginary scale in conformity with the decision of the Supreme Court in Odofin v. Mogaji (1978) 4 S.C 91, and since it could not rely on the traditional evidence adduced by the Appellants, its findings was unassailable, which is ground enough for this Court to dismiss the appeal as unmeritorious.

Basically, the Appellants’ grouse is that the lower Court did not do a proper job of evaluating the evidence before it, and I agree but not in their favour. Evaluation of evidence is the “do or die” parallel in the adjudication process, and it simply means the assessment or estimation of evidence by a trial Court so as to give credit or value to it. A civil case is won on the preponderance of evidence and where the Court is convinced that the case of a party is deficient in substance and weight or mired in confusion and not readily understandable, it cannot assist the party – see Ansa V. Ishie (2005) 15 NWLR (pt. 948) 210 SC, where Pats-Acholonu further observed as follows-

“It is a notorious fact that a land case of this nature which has its historical evolution or antecedents in the history of the founding fathers and eventual acquisition of land and exercise of maximum acts of ownership is heavily dependent on the facts of the case rooted in history. – It is incumbent on the proponents of the action to proffer the testimony that would preponderate over the opposing party’s story”.

In this case, the Appellants argued that the Respondent did not call any witness to disprove their evidence or that of their witnesses and the lower Court ought to have accepted it because it was not contradicted in any way. True enough, the law says that where evidence is not inadmissible in law, uncontradicted and unchallenged, a Court of law can act on it and accept it as a true version of the case it seeks to support, unless the evidence is patently incredible – see Iriri V. Erhurhobara (1991) 2 NWLR (pt.173) 252. Incredible evidence simply means evidence that is difficult to believe in, and in this case, I do not need a crystal ball to tell me that the Appellants’ evidence in proof of their claim to the land in dispute is patently incredible. First of all, they said one thing in their pleadings and another thing In their evidence in Court, and the contradiction cannot be written off as a mistake or oversight because the story they narrated in their pleadings is too elaborate.

They averred in their Amended Statement of Claim that Madam Rukayat was first married to Pa Bosobo and begat John Bosobo with him, thereafter she entered into a second marriage with Pa Koleoso and was blessed with two children Yusuf Irawo-Osan and Olubo. They charged their story in their Reply to the Second Amended Statement of Defence, which I have said is defective and ought to have been discountenanced by the lower Court.

However, they averred therein that Madam Rukayat was first married to Pa Koleoso and begat Yusuf Irawo-Osan and Olubo, thereafter she divorced him and entered into a second marriage with Pa Bosobo and begat John Bosabo. They added that after the death of Pa Bosobo, she went back with John to her first husband, Pa Koleoso, thus making John Bosobo his adopted child. An incredible story, which was not substantiated and one fit only for a movie. The lower Court noted the contradiction in the pleadings and did not resolve it one way or the other; it merely commented that “no reason was adduced on the turn about evidence” and proceeded to assess the evidence without more. But that is wrong, which explains why it got into the bind it did when it held in one breath that Exhibit “A” – the layout Plan of the land in dispute, “supports the evidence of the PW1 that the two plots were allocated to him and his deceased brother the 1st Plaintiff” by John Bosobo, arld in another breath held that Exhibit “A” dated 1976 could not have been given to the Appellants in 1976, therefore “so much beclouds the history of exhibit ‘A’ and the Appellants’ traditional history cannot be relied on, and is inconclusive. The word “inconclusive” means evidence “not leading to a conclusion or definite result” – see Black’s Law Dictionary: 7th Ed., and I must disagree with the lower Court because the Appellants’ evidence Is anything but inconclusive. The fact of the matter is that the Appellants’ Reply was defective, which means the only pleadings before the lower Court was the Amended Statement of Claim, and when the 2nd Appellant gave evidence that was contrary to their pleadings; his evidence went to no issue. After all the law says that parties are bound by their pleadings and evidence that is contrary to the pleadings goes to no issue – see Dabo v. Abdullahi (2005) 7 NWLR (Pt. 923) 191. The end result in this case is that the Appellants definitely failed to establish their link to the land in dispute, and their claim to the said land therefore fails.

It is an established principle of law that a Plaintiff who relies on traditional history in proof of a claim for declaration of title to land must lead evidence to show the root of his title; that is how the land devolved over the years on his predecessors-in-title in his family until the land got to him – see Iheanacho v. Chigere (2004) 17 NWLR (Pt. 901) 130 SC. In other words, a person who traces his root of title to a particular person or family must establish how that person or family also came to have title vested in him or it – see Popoola v. Balogun (2007) 8 NWLR (pt, 1037) 574, where the Court also added that-

“Acts of ownership can only rest on a proved title. Valid title is a ‘quo warranto’ for acts of ownership”.

In this case, the lower Court may have taken a tortuous route to get there but it came to the right decision when it dismissed the said claim because-

“- The acts of possession of the PW1 as given in evidence are not permissible to support a non-existent root. It is not permissible to substitute a root of title which has failed with acts of possession which should have derived from the root”. (Italics mine).

Very true, where the radical title to a land in dispute is pleaded but is not proved, it is not permissible to support the non-existent root of title with acts of possession predicated on the title that was not proved in the first place – see Dabo V. Abdullahi (supra). In this case, the Appellants traced their title to the land in dispute to Madam Rukuyat who they claimed was their grandmother but they gave conflicting stories in their pleadings and evidence as to whether their grandmother was first married to one man or the other, which is rather hard to swallow because in one they claimed that John Bosobo, who was clearly in possession of the land before all the hullabaloo, was their father’s senior brother and in another that the same John was their father’s junior brother, who was adopted by their grandmother’s 2nd husband. Once their claim to title failed, the other claims collapsed like a pack of cards, which is what the law says and what the lower Court rightly decided.

Consequently, I hold that the appeal lacks merit. It therefore fails and it is hereby dismissed. The Respondent is awarded costs assessed at N5,000.00.

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Other Citations: (2007)LCN/2476(CA)