Shittu Sanusi & Ors. V. Buraimo Obafunwa & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

In the Writ of Summons filed at the Sagamu High Court of Ogun State on the 19th September 1984, the Respondents as Plaintiffs for themselves and on behalf of the Ofifi Family of Isokun Ilishan claimed inter alia that “they are entitled to Right of Occupancy on a piece or parcel of land situate, lying and being at Ilishan, Remo, Ogun State”, and in paragraph 5 & 6 of their original Statement of Claim dated 6th December 1984, they averred as follows –

5. The Plaintiffs state that the land in dispute is situate, lying and being at Ilishan Ikenne Road, Ilishan Remo, Ogun State and is edged GREEN in Plan No. OGE 343A/78 and attached to this Statement of Claim”.
6. The Plaintiffs state that the whole area edged RED in the said plan belonged originally to one Ofifi who came from I1e-Ife to settle on the land very many years ago.

They further averred as follows in paragraph 40 of the Statement of claim –

“WHEREOF the Plaintiffs claim as per their writ of summons”.

The same averments were reproduced in their “Amended Statement of Claim” dated 22nd April 1985, and repeated in paragraphs 5, 6, & 43 of their “Further Amended Statement and Plan” dated 28th February 1986.

The Appellants as Defendants filed a Statement of Defence dated 3rd of April 1985; an “Amended Statement of Defence” dated 3rd of May 1985, and after 4 of their witnesses had testified on their behalf, a Further Amended Statement of Defence” dated 22nd of October 1987, which they sought leave of the lower Court to deem as having “been regularly filed and served”. After hearing arguments from counsel, the lower Court held as follows –

“I find that the Defendants have brought in their genealogical tree which is so detailed – – one is not left in doubt at all that the Defendants have just woken up from their slumber to tell the world their family history i.e. who begat who. The proposed amendments are fundamental. In this case the Plaintiffs called 10 witnesses and have closed their case. The Defendants have called 4 witnesses before it dawned on them to bring this application. – – – The Defendants have not come to equity with clean hands. It is one lie after the other. It will work injustice on the Plaintiffs to allow this massive amendment. Accordingly the application to amend paragraphs – – is hereby refused and the application is hereby dismissed. As stated earlier the formal amendments in paragraphs – – are hereby granted and an amended Statement of Defence reflecting only these amendments should be filed within 7 days. The Further Amended Statement of Defence dated 22nd October 1987, which was flied without leave is hereby ordered to be expunged from the records”

Consequent upon the above Ruling, the Appellants filed a “Further Amended Statement of Defence” dated 28th of October 1987, wherein it was averred –

3. In answer to paragraph 5 of the Further Amended Statement of Claim, the Defendants say that the land in dispute is situate, lying and being at Ikenne, Ijebu Remo, Ogun State of Nigeria and it is more particularly described and edged RED on Plan OGE3434AA/78 made by S. Akin Ogunbiyi, Licensed Surveyor”. (Italics mine).
4. A few men revolted against the entire Messe Family and employed Mr. S. Akin Ogunbiyi Licensed Surveyor in 1978 to carve out a portion of Messe Obara Family land for their use in the name of their paternal Ancestor called Ofifi.
5. The said Licensed Surveyor prepared a plan No. OGE343/78 dated the 24th day of November 1978 in the name of Ofifi Family and thereon verged the land taken “RED”.
6. The Defendants further aver that the Plaintiffs also instructed the said Mr. S. Akin Ogunbiyi Licensed Surveyor to fix some additional details into the area verged RED on the plan No. OGE343/78, which instructions the said licensed Surveyor carried out and produced the plans No. OGE343A/78 and OGEAA referred to in paragraphs 3 and 9 of the Further Amended Statement of Claim. The Defendants shall also rely on the said plan No. OGE343AA/78 at the hearing of the action.

At the conclusion of the trial, wherein 10 witnesses testified for the Respondents and 8 witnesses gave evidence for the Appellants, and after hearing addresses of counsel, the learned trial Judge, Hon. Justice I.O. Sonoiki delivered Judgment on the 18th of February 1988, wherein he held –

“There shall be Judgment for the Plaintiffs against the Defendants jointly and severally for a customary right of occupancy to the area verged Green on Exhibit A excluding the areas verged yellow therein. There shall be N400.00 (Four hundred Naira) general damages for trespass and the Defendants, their servants, agents and privies are retrained from committing further acts of trespass on the land in dispute. There shall be N2,500 costs to the Plaintiffs”. (Italics mine).

Dissatisfied, the Appellants have appealed to this Court with a Notice of Appeal containing 11 Grounds of Appeal, some of which the Respondents argue should be struck out. The said grounds without their particulars are –

1. The learned trial Judge erred in law and on the facts in granting a Customary Right of Occupancy to the area verged Green on the plan tendered as Exhibit ‘A’ excluding the area verged Yellow thereon and so came to a wrong decision.
2. The learned trial Judge erred in law and misdirected himself on the facts when he observed as follows: –

“The defendants do not deny that they entered the land and sold portions of it to Chief Okulaja, etc. No act of trespass could be greater than these. As the Defendants have no claim to the land, they ought to be restrained from going on to the land.

3. (No Ground 3)
4. The learned trial Judge erred in law in not identifying the three vital issues involved in this case and thereafter to proceed to settle the issues in his Judgment in line with the evidence adduced so as to enable him to arrive at a just decision in the above matter and consequently he arrived at an entirely wrong decision.
5. The learned trial Judge erred in law and on the facts in dealing with the case of the defence rather than on the proper consideration of the proof of the Plaintiffs’ claim upon its merits and the proper appraisal of the whole of the evidence adduced before him and so he came to a wrong decision.
6. The learned trial Judge misdirected himself in law and on the facts when he held as follows –

These people including the 1st D.W claim relationship with Messes Obaro Familiy. The only explanation for this claim of relationship with the Messe Obaro Family would not be far from the fact that they were able to sell land with Messe Obaro Family and to pocket the money without accounting to members of Ofifi Family. They could be nothing other than degenerates.

7. The learned trial Judge erred in law and grossly misdirected himself when he held as follows –

“Plaintiffs have established their claim to the disputed land and the Defendants have not disputed this. The defendants claim they are joint owners as relations which the Plaintiffs deny. The onus is on the Defendants to prove this relationship and they can only do this by giving the genealogical evidence of their relationship with Plaintiffs’ family. These, the Defendants have woefully failed to prove. They cannot just come to Court and say they are related to the Plaintiffs through Odubero. They must show the family tree connecting them with Ofifi because according to the Plaintiffs Odubero was not the wife of Ofifi but his wife was “Jebi”.

8. The learned trial Judge erred in law and on the fact and misdirected himself on the standard of proof when he held as follows –

“On the whole Plaintiffs have adduced abundant evidence in support of their claim to the land in dispute through acts of long possession and enjoyment of the land, various acts of ownership, traditional evidence and the admission of the Defendants, that Plaintiffs are entitled to the land in dispute”.

9. The learned trial Judge erred in law and on the facts when he held –

“There is copious evidence that the 1st Plaintiff is the Head of the family and can on his own bring this action. There is no pleaded evidence that the 1st & 2nd D.W.’s are Principal members of Ofifi family, Plaintiffs are quite competent to bring this action”.

10. The learned trial Judge erred in law in refusing to grant the application for amendment by the Defendants, which amendments were important and the facts sought to be established by the amendment would enable him to arrive at a just decision in the above matter.
11. That Judgment is against the weight of evidence adduced.

The Appellants formulated 4 Issues for Determination in their brief of argument prepared by Chief Dele Awoniyi, and while arguing the said issues related them to Grounds 1, 4, 5, and 11 only, The Issues formulated are –

1. Whether or not, the Plaintiffs who have claimed the Relief of RIGHT of OCCUPANCY on an unspecified piece of land or on a land the identity of which has not been shown in his claim on the Writ of Summons or the Further Amended Statement of Claim can be granted CUSTOMARY RIGHT OF OCCUPANCY on an area verged “Green” on the plan tendered as Exhibit “A” excluding the area verged “YELLOW” on the said Plan by the learned trial Judge, which Relief the Plaintiffs/Respondents did not claim in the above action at the lower Court.
2. Whether or not the learned trial Judge has identified the issue involved in the above case before it and has properly evaluated the evidence adduced before him for the purpose of resolving the issues involved in the above case before arriving at his decision in his Judgment against in the above matter.
3. Whether or not, the learned trial Judge is right in approaching the resolution of the above case on the basis of first examining the Plaintiffs’ case to ensure that the Plaintiffs have proved their case to the standard required by law before examining the case of the defence rather than examining the case of the defence first and using the weakness in the case of the defence to grant the reliefs sought by the Plaintiffs in the above action.
4. Whether or not, on the totality of the evidence adduced by the Defendants in the above action (sic) is put on the imaginary scale by the learned trial Judge, it will over-weight the evidence adduced by the Plaintiffs in the above action to enable the learned trial Judge to dismiss the Plaintiffs’ case on the preponderance of evidence adduced.

The Respondents urged this Court to strike out Grounds, 2, 3, 6, 7, 8, 9, & 10 of the Appellants’ Grounds of Appeal as no issues were formulated from them. It was further submitted that the effect of such failure to advance arguments on them is that they are deemed totally abandoned and have no effect on the appeal, citing J.K. Melwani v. Feed Nation Industry (Nig.) Ltd. (1986) 5 NWLR (pt. 43) 587, Oba A. Aromolaran & 1 or v. D. O. Kupoluyi & 4 ors (1994) 2 NWLR (pt. 325) 221, & Sunday Effiong v. The State (1988) 8 NWLR (pt. 362) 36; that having been abandoned, they should be struck out as incompetent, citing Aromolaran v. Kupoluyi (supra), & Toyinbo & ors v. Adewunmi (1990) 6 NWLR (pt. 154) 98; and that the Appellants filed only 10 Grounds, as they jumped number 3 and instead wrote number 4, so the Ground, which ought to be canvassed as Ground 3 was treated as Ground 4.

The Appellants filed a Reply Brief but did not address this preliminary Issue. Yes, the Respondents are right, a ground of appeal from which an issue for determination is not formulated is deemed abandoned and must be struck out

– see Nwude V. FGN (2004) 17 NWLR (pt. 902) 306. However, in an appeal, it is not every ground of appeal that raises an issue for determination. Sometimes, one ground of appeal may raise an issue, at other times, a combination of facts on the grounds of appeal may together raise an issue for determination – see Iwuoha v. NIPOST Ltd. (2003) 8 NWLR (pt 822) 308 SC, S.C. D. & C.C. Ltd. & anor. v. Katonecrast Nig. Ltd. (1986) 5 NWLR (pt. 44) 791. What is the situation in this appeal?

To start with, there is no Ground 3 but that is neither here nor there. As for Grounds 2, 6, 7, 8, & 9 as numbered, they are obviously complaints against the evaluation of evidence by the lower Court, and these are easily covered by Issues 2 & 3, so it will not be necessary to have them struck out. Ground 10 as numbered, is a different kettle of fish however. It is a complaint against the lower Court’s Ruling refusing the Appellants leave to amend their pleadings, and no issue of determination was formulated from it. It is trite law that arguments are canvassed on the basis of issues formulated in a brief and not the Grounds of Appeal. In other words, complaints raised in Grounds of Appeal which are not translated into issues for Determination are deemed to have been abandoned, and must be struck out – see Ezemba v. Ibeneme (2000) 10 NWLR (pt. 674) 61 & C & C Ltd. v. Altimate Investments Ltd. (2004) 2 NWLR (pt. 857) 274. In effect, since no issue was formulated from Ground 10 of the Appellants’ Grounds of Appeal, the said Ground is hereby struck out. Be that as it may, the Respondents formulated four Issues for Determination in their own brief prepared by Chief S.A. Akinbami, as follows-

1. Whether the Respondents’ Writ of Summons and Pleadings sufficiently disclosed the reliefs claimed by the Respondents to make the learned trial Judge grant the Customary Right of Occupancy to the Respondents.
2. Having regard to the Respondents’ pleadings and evidence led in support whether the Respondents were able to prove by traditional evidence and exclusive possession of the land in dispute to enable the learned trial Judge grant the reliefs claimed by the Respondents.
3. Whether the style adopted by the learned trial Judge in writing Judgment in this case occasioned a miscarriage of justice.
4. Whether the approach of the issues arising for determination and the findings made by the learned trial Judge are supported by evidence on record.

To my mind, the Issues formulated by both parties leave much to be desired. Issues for determination in a brief act as a mirror reflecting the grounds of appeal, and must be simply, concisely and tersely formulated. They should not be framed in the abstract but in concrete terms that reflect the questions in controversy in the particular appeal. Nonetheless, I will adopt the Respondents’ Issues in dealing with this appeal. In my view, they are less verbose and capture the essence of the complaints in the Grounds of Appeal.

On the Issue of whether the lower Court was right to grant the Respondents a “Customary Right of Occupancy” to land, not expressly claimed in their Writ of Summons, the Appellants submitted that the following shortcomings can be observed in the said Writ filed and relied upon in the lower Court –

1. The word “land in dispute” does not appear in the Writ of Summons which means that the Plaintiffs are referring to other lands in the Writ of Summons apart from the land in dispute in the action.
2. No Survey Plan whether verged RED GREEN or YELLOW has been referred to in the Reliefs claimed on the Writ of Summons.
3. The Respondents filed a Statement of Claim, an Amended Statement of Claim, and further filed a Further Amended Statement of Claim and Plan but there is no paragraph in either the Statement of Claim or the Amended Statement of Claim or the Further Amended Statement of Claim and Plan where the Plaintiffs pleaded the identity of the land in dispute as being claimed by them and which were granted to them as the Reliefs sought in the action. Instead of amending paragraph 43 of the Further Amended Statement of Claim and Plan to reflect the Reliefs claimed by them in terms of the Reliefs granted in the Judgment of the Lower Court appealed against, the Respondent merely repeated the words –

“WHEREOF the Plaintiffs claim as per their Writ of Summons” The above quoted words have always been used as the Reliefs claimed in the Statement of Claim, and the Amended Statement of Claims. The effect is that the Respondents claimed nothing from the Court and no matter how well conducted their cases may be the fact remains that they have no proper reliefs claimed from the Court because they have always stood on their Writ of Summons which claimed no specified land.

It was further submitted that the last pleading of the Respondents relating to the ownership of the land in dispute and upon which facts they validly adduce evidence in support of their case is the Further Amended Statement of Claim and Plan, particularly paragraphs (5), (6), (9), 10(c), (23), (26), (28), & (29); that from their pleadings, the only area the Respondents are entitled is the area verged ‘RED’ in the plan No. OGE 343A/78 dated 17/11/84 and not the area verged ‘GREEN’ excluding the area verged ‘YELLOW’ on the said plan – Exhibit ‘A’ as averred in paragraph 65, 9, 10(c), & 25 which show that the land in dispute is verged ‘RED’ in the composite plan tendered as Exhibit ‘A’; that the Respondents have NOT shown they are entitled to the whole of the area verged RED in Exhibit A at the time of filing the action because they pleaded and gave evidence in support of the fact pleaded in paragraphs 26, 28 & 29 of the Further Amended Statement of Claim.

Furthermore, that it is the duty of the Court to grant the reliefs claimed and if the evidence is in support of the reliefs NOT claimed, the Court has no power to carve out a claim for the Respondents on the evidence adduced by them, and the lower Court was in error to have done so. It was further argued that the Respondents’ claim for a Right of Occupancy without specifying the type of Right of Occupancy claimed is vague and should be rejected, as what is known to the law is either a Statutory Right of Occupancy to be granted by the High Court, and Customary Right of Occupancy to be granted by the Customary Court; and since the Respondents have not asked for either of these two types of Right of Occupancy, it was wrong of the lower Court to grant them a Customary Right of Occupancy, when they have only asked for “Right of Occupancy”, citing Abbass v. Solomon (2001) FWLR (Pt. 67) 847.

The Respondents however argued that paragraph 5 of their Further Amended Statement of Claim sufficiently disclosed the land in dispute, and that paragraph 43 cannot be read in isolation of the other paragraphs of the said Amended Statement of Claim; that they also filed a dispute plan showing the land in dispute edged green, which was served on the Appellants who did not file a counter plan or composite plan, so they had done what is required of them by law; that it is trite law that the Statement of Claim supersedes the Writ of Summons, citing A.G. Edo State v. Jessica Trading Co. (1999) 5 NWLR (pt. 604) 500; and that it is the Appellants who ought to have raised the issue of uncertainty or doubt as to the identity of the land in dispute in their pleadings, citing Iso v. Eno (2003) 7 SCNJ 821, rather they averred as they did in paragraphs 3, 16, 17, & 18 of the Amended Statement of Defence (reproduced above). Though conceding that merely stating that they are claiming as per the writ of summons “is a lazy way of pleading and ought to be discouraged”, they argued that the Court will not because of that refuse to grant a worthy claimant’s reliefs as long as the reliefs are clear and unambiguous on the Writ of Summons and statement of Claim filed and there is evidence to support the said pleadings, citing AG, Edo v. Jessica (supra), & Araromi Rubber Estate Ltd. v. Orogun (1999) 1 NWLR (pt. 586) 302.

On the issue of “Right of Occupancy”, the Respondents submitted, citing Ekpenyong v. Nyong (1975) 2 5C 71, that it is trite law that Courts cannot grant relief not claimed, but argued, citing Ifeadi & 1 Or v. Ayedze 1998) 13 NWLR (pt 581) 205, that in a deserving case, the Court has power to grant a consequential relief to a successful litigant; and that the effect of the Land Use Act on the type of relief a claimant can claim is Right of Occupancy, citing Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 where Oputa, JSC observed-

“The only innovation introduced by the Land Use Act was to divest any claimant of radical title and limit his claims to a “right of occupancy”. A claimant can be entitled to a declaration of the right of occupancy of a piece of land”.

It was further submitted, citing Ikuomola v. Oniwaya & 2 ors (1990) 4 NWLR (pt 146) 617, that the issue of whether the type of right is statutory or customary is that of fact based on the evidence led as to where the land is situated; and that the essence of Section 40 of the Land Use Act is to do substantial justice to a deserving party, citing Ojah v. Ogboni (1996) 6 NWLR (pt. 454) 272, where the Supreme Court per Iguh, JSC stated thus-

“It ought to be stressed that our Courts – – would appear, quite rightly, to have shifted away from the narrow technical approach to justice which characterized some earlier decision. Instead, they now pursue the course of substantial justice, a situation which clearly deserves great commendation – – I am therefore unable to accept even in a declaration of title to land claim, that the omission to employ the technical language of the land prescribed under section 40 of the Land Use Act ipso facto vitiates the Judgment of the Court in favour of a claimant in the suit. In such a case, the trial judge, as long as the Claimant has established his claim to the satisfaction of the Court is entitled to grant and may award a declaration of title to a right of occupancy in respect of the piece or parcel of land in dispute pursuant to Section 40 of the Land Use Act- -” (Italics mine).

No doubt, this issue must be resolved in favour of the Respondents. To start with, the Respondents are right that paragraph 43 of their Further Amended Statement of Claim, wherein it was stated that they “claim as per their Writ of Summons” cannot be read in isolation of the other paragraphs of their Further Amended Statement of Claim and Plan. To ascertain the exact claim of a plaintiff in a suit, one generally must have recourse to the writ of summons and the claim as endorsed in the statement of claim.

See Adelusola v. Akinde (2004) 12 NWLR (pt. 887) 295 where the Supreme Court per Edozie, JSC further sated as follows –

“But just as in determining whether an averment in a particular paragraph of a statement of claim is traversed, one is not limited to a particular paragraph of the statement of defence but to the entire defence – – so by way of analogy, to ascertain the Plaintiffs’ claim it is necessary to examine not only the writ of summons or the claim portion of the statement of claim but also other paragraphs of the statement of Claim as well as plans filed along with the statement of claim. (Italics mine).

In addition, it is trite law that facts admitted require no proof because an onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. If the Plaintiff’s claim is admitted, that will be the end. Similarly, if a particular averment of the Plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. In summary, what is not denied is deemed admitted and what is admitted need not be proved – see Adike v. Obiareri (2002) 4 NWLR (pt. 758) 537. In this case, the lower Court held –

“Exhibit A shows that a large portion of the area verged GREEN was allotted to members of Ofifi family to cultivate. In paragraphs 3, 16, 17, & 18 of the Amended Statement of Defence, the Defendants agree with the plan, Exhibit A, together with its features. The principal spokesman for the Defendants, the 5th DW, had this to say under cross-examination –

“We agree with the contents of Exhibit A and that is why we did not file a counter-plan”.

The conclusion of the lower Court cannot be faulted. The Appellants averred in paragraph 3 of their Amended Statement of Defence, that the “land in dispute is situate, lying and being at Ikenne – and it is more particularly described and edged RED on Plan OGE3434AA/78 made by S. Akin Ogunbiyi, Licensed Surveyor”; in paragraph 16, that the said Surveyor carved out a portion of Messe Obara Family land “in the name of their paternal Ancestor called Ofifi”; and in paragraph 17 that the said Surveyor “prepared a plan No. OGE343/78 dated the 24th day of November 1978 in the name of Ofifi Family and thereon verged the land taken RED”.

They further averred in paragraph 18 that the Respondents also instructed the said Surveyor “to fix some additional details into the area verged RED on the plan No. OGE343/78”, which the Surveyor carried out and “produced the plans No. OGE343A/78 and OGEAA referred to in paragraphs 3 and 9 of the Further Amended Statement of Claim”. All the 8 witnesses who testified on behalf of the Appellants admitted they knew the land in dispute, and 5th DW in particular, admitted during cross-examination that they were all served with Exhibit A – a Survey “Plan showing Land in Dispute – Suit No. HCS/34/84”, which he said they agreed with, and by they did not file a counter-plan.

Now, the law is clear that where from the evidence and circumstances of the case, the parties have no doubt as to the identity of the land in dispute, the burden of proving the same does no exist – see Okedare v. Adebara (1994) 6 NWLR (pt. 349) 157, Fatuade v. Onwoamanam (1990) 2 NWLR (pt. 132) 322, Alabi v. Oloya (2001) 6 NWLR (Pt.708) 37, Ekwomchi v. Ukwu (2002) 1 NWLR (749) 590, & Osakwe Iwuno v. Guedo Dieli (1990) 5 NWLR (pt. 149) 126 @ 149, where this Court held as follows –

“Where the parties from the evidence are clear as to the identity of the land in dispute the fact that different names are given to it or the area it is located cannot affect the case”.

This brings us to the second issue for determination. The Appellants submitted that the lower Court did not extract the issues for determination and ensured that the Respondents have proved their case to the standard required by law before awarding Judgment in their favour, citing Atoyebi v. Gov. Oyo State (1994) 5 NWLR (p. 344) 290. The Respondents however submitted that their traditional evidence was ably considered along with the evidence of recent possession before the lower Court concluded as follows-

“The Plaintiffs have established their claim to the disputed land and the Defendants have not disputed this. The Defendants claim they are joint owners as relations which the Plaintiffs deny. The onus is on the Defendants to prove this relationship and they can only do this by giving the genealogical evidence of their relationships with Plaintiffs’ family. This, the Defendants have woefully failed to prove. They cannot just come to Court and say they are related to the Plaintiffs through Odubero. They must show the family tree connecting them with Ofifi because according to the Plaintiffs, Odubero was not the wife of Ofifi but his wife was Jebi’: (Italic mine).

The Respondents further submitted that it is clear that the lower Court appreciated the issue of who had a better title between the parties; that if a party is unable to prove by credible evidence the name of the original settler, the intervening people, and trace same to him, his case has not been proved and is liable to be dismissed, citing Owhonda v. Ekpechi (2003) 9 SCNJ 1; that the lower Court having found that the Appellants could not prove a better title than the Respondents on the balance of probability, was justified in concluding that the Appellants’ acts of possession (if any) amounted to trespass, citing Lawal v. Olufowobi (1996) 10 NWLR (pt. 477) 177, & Owhonda v. Ekpechi (supra); that the lower Court did give a proper and adequate consideration to the evidence led by both parties before giving Judgment in favour of the Respondents; and that the case of Atoyebi v. Gov. Oyo State (supra) cited by the Appellants is not relevant to this case. Now, evaluation of evidence entails the assessment of evidence so as to give value or quality to it; it involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – see Oyekola v. Ajibade (2004) 17 NWLR (pt. 902) 356, & Idakwo v. Nigerian Army (2004) 2 NWLR (Pt. 857) 249. In this case, the lower Court, in my view, adequately considered the evidence of both parties and was right to conclude that the Respondents established their claim to the land in question, and that this was not disputed by the Appellants. For instance, there is the evidence of acts of possession by the Respondents, which were admitted by the Appellants; the evidence of the 5th DW who agreed with the contents of Exhibit A, and who also testified that they are joint owners of the entire land edged RED on Exhibit A, etc. The onus lay on the Appellants to prove this. Certainly, a party relying on evidence of traditional history must plead his root of title. Not only that, he must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, or the claim fails – see Eze v. Atasie (2000) 6 SCNJ 209.

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 – see Ezuchukwu v. Ukachukwu (2004) 17 NWLR (pt. 902) 227 SC, & Odi V. Iyala (2004) 8 NWLR (pt. 875) 283. In this case, the Respondents satisfied that requirement. But the Appellants who claimed that they were joint owners of the land in dispute with the Respondents through one Odubero who was the wife of Ofifi, did not prove that claim. The lower Court was right to hold-_

“They cannot just come to Court and say they are related to the Plaintiffs through Odubero. They must show the family tree connecting them with Ofifi because according to the Plaintiffs, Odubero was not the wife of Ofifi but his wife was Jebi”.

This brings us to Issue 3, and the Appellants’ contention is that the method adopted by the lower Court was to consider their defence first before going to the case of the Respondents on the merit, and to use the weakness in their case to find in favour of the Respondents, citing Ezewusim V. Okoro (1997) 5 NWLR (pt. 294) 478 wherein it was held that the learned trial Judge should first of all consider the case of the Plaintiff on the onus of proof placed on them before considering the case of the Defendants. Furthermore, that the lower Court used their evidence not only to strengthen the Respondents’ case but more importantly to justify the Respondents’ title, which, it was argued, is like using answers to questions to solve the questions whereas the better thing is to solve the question in order to get an answer, and citing Engineering Enterprises V. A. G., Kaduna (1987) 2 NWLR (pt. 57) 381, this Court was urged to set aside the Judgment. The Respondents however countered that the lower Court did not use the weakness in the Appellants’ case to grant them the reliefs claimed; that their case was first considered before that of the Appellants; and that findings were made before Judgment was given to them based on the credible evidence they led, and the reliefs were granted based on the balance of probabilities. Furthermore, that although the lower Court considered he evidence of both parties, it made use of the Appellants’ evidence which supported the Respondents’ case, which it is entitled to do in law, citing Akinola V. Oluwo (1962) 1 ALL NLR 224.

One basic principle of law on onus of proof in civil cases is that he who asserts must prove. The onus does not however remain static, it moves from one side to the other. In other words, the burden rests on the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of an issue – see Odumeru V. Adenuga (2000) 12 NWLR (pt. 682) 466, Ibrahim V. Ojomo (2004) 4 NWLR 862) 89. In this case, the lower Court found, and quite rightly too in my view, that the Respondents established their case as claimed, and the onus therefore shifted to the Appellants to prove their assertion that they were joint owners with the Respondents through Odubero, and this they failed to do. Their complaint about the lower Court’s style of writing Judgment also lacks merit. It is simply not true. In any case, a Court of law has the right to consider the case of either the Plaintiff or the Defendant first. This is so because it is impossible to consider the case of the parties at the same time and together – see Usman V. Garke (2003) 14 NWLR (840) 261, where Tobi, JSC stated as follows –

“The case of the parties could be considered one after the other, but certainly not together at the same time. That is an impossibility. The discretion of whose case to start with is that of the Judge. It depends so much on the state of the pleadings and the particular facts before the Court. Basically, however, the trial Judge could first consider the case of the party on whom the burden of proof lies, that is to say, the party who will fail, if the live issues in the matter were not proved”.

Issue 4 has been dealt with while considering the other Issues. I only wish to add that the issue of “Customary” added to the “Right of Occupancy” is of no moment in this appeal, and cannot in any way vitiate the Judgment of the lower Court in favour of the Respondents – see Ojah V. Ogboni (supra).

The end result is that the appeal lacks merit and is hereby dismissed, with N5,000 costs against the Appellants in favour of the Respondents.

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Other Citations: (2006)LCN/1884(CA)