(2018) LPELR-46312(CA)lawpavilionpersonal.com/ipad/books/46312.pdf · (1988) 4 NWLR (Pt.88) 275 at...
Transcript of (2018) LPELR-46312(CA)lawpavilionpersonal.com/ipad/books/46312.pdf · (1988) 4 NWLR (Pt.88) 275 at...
MICHAEL & ANOR v. ADULOJU
CITATION: (2018) LPELR-46312(CA)
In the Court of AppealIn the Ado-Ekiti Judicial Division
Holden at Ado-Ekiti
ON TUESDAY, 27TH NOVEMBER, 2018Suit No: CA/EK/24/2016
Before Their Lordships:
AHMAD OLAREWAJU BELGORE Justice, Court of AppealFATIMA OMORO AKINBAMI Justice, Court of AppealELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice, Court of Appeal
Between1. MR. AYOTUNDE MICHAEL2. SULE BADMUS - Appellant(s)
AndCHIEF BAMIDELE ADULOJU(The Edemo of Ado-Ekiti for himself and on behalfof Edemo family of Ado-Ekiti)
- Respondent(s)
RATIO DECIDENDI
(201
8) LP
ELR-46
312(
CA)
1. EVIDENCE - DOCUMENTARY EVIDENCE: What is required of a party subpoened to produce a document in Court<span style="font-size: 12px;">"The issue here touches on DW6, Chief Obayemi Aladetoyinbo a witnesssubpoenaed to come and tender documents simply called subpoena duces tecum i.e purely to tender documents.Such a witness is summoned or ordered to appear to produce specified documents, and not to testify as in the caseof subpoena ad testificandum which is to testify. The different types of subpoena were highlighted in the caseofAKINTAYO V JOLAOYE (2010) LPELR-3688 where this Court held that; "Subpoena is an order of Court used forsecuring a witness's attendance in Court of trial for the purpose of testifying and to produce some documents onbehalf of the party who applied for the issue of such subpoena. Where the order is to secure the attendance of awitness for the purpose of testifying in Court, it is simply called subpoena ad testificadum where the ordercommands the witness to produce certain documents at the trial of an action, it is called subpoena duces tecum. Ifit is expected that apart from producing the documents, the person is also to give evidence, the subpoena would besubpoena ad testicandum et duces tecum." The subpoena issued in this case was subpoena tecum simpliciter andtherefore it was a command to produce documents and not testify. The learned trial judge erred in law by rejectingthe letters sought to be tendered by, DW6. The law has defined the role of a person subpoenaed to produce adocument and not to testify. A person subpoenaed to produce, need not enter the witness box as his duty is merelyto produce to the Court the documents named in the subpoena. In the case of EDOHO V ATTORNEY GENERAL OFAKWA IBOM & ORS (1996) 1 NWLR (Pt. 425) 488 at 498 where this Court held thus: A person merely called toproduce documents under subpoena duces tecum pursuant to Section 193 of the Evidence Act need not be sworn ifthe document either requires no proof or is to be proved by other means and if not sworn, or unnecessarily, hecannot be crossed examined. In other words, the mere fact that a person was erroneously sworn before heproduced and tendered the documents will not derogate from the purpose for which he was subpoenaed to theCourt. At page 225 of the record of appeal the rejected letter of deposition states as follows: "As a result of all theabove, especially his flagrant disrespect to the custom and tradition of Ado- Ekiti and especially the Ewi institution,James Bamidele William Aduloju is hereby deposed as the Edemo of Ado- Ekiti." I disagree with the lower Court inrejecting the letters sought to be tendered and I find support also in the cases of TEWOGBADE V AGBABIAKA (2001)5 NWLR (PT. 705) 52-53 which relied on Section 192 and 193 of the Evidence Act. See also the case of lyanda vLaniba ll (2003) 1 NWLR (PT 801) PAGE 267 at 296 -297."</span>Per AKINBAMI, J.C.A. (Pp. 19-21, Paras. D-F) - readin context
2. EVIDENCE - WRONGFUL ADMISSION/REJECTION OF EVIDENCE: Whether a document wrongly rejected inevidence can be re-admitted"I agree with the contention of Appellants' counsel that a document wrongly rejected in evidence can be re-admitted. See Buhari v I.N.E.C (2008) 19 NWLR (PT1120) 246 AT 386 para F."Per AKINBAMI, J.C.A. (P. 22, Para. A) - read in context
3. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of proof in a claim for declarationof title to family land and when same will shift<span style="font-size: 12px;">"In resolving this issue 2, l must state that, there is no doubt that the law is firmlysettled and needs no restatement that a plaintiff or Claimant who claims or seeks for declaration of title to land orright to statutory right of occupancy must give credible or believable evidence to establish or indicate his ownershipof the land to enable the Court exercise its discretion in his favour. The Claimant or the Plaintiff must also identifythe land or parcel of land he claims with clarity. This is imperative particularly where such Claimant or Plaintiff isalso seeking for Order of Injunction to restrain his adversary from trespassing or further trespassing or encroachingupon the land or res he claims. It is when he has been able to prove all of these that onus will shift on theDefendant to show a better title. The Claimant or the Plaintiff in an action for declaration of title is only required toprove his case on the balance of probabilities and he can do it in any of the five ways established by the decisionsof the apex Court in the land. I call in aid the following decisions:- 1.NAPOLEON ORIANZI VS THE A.G. OF RIVERS& ORS (2017) 6 NWLR (PT.1561) 224 AT 264 E-H 265 264 E-H - 265 A - C per GALINJE, JSC who said:- Clearly,the appellant set out a claim for declaration of title to the disputed property. The law is settled that the burden ofproof in a claim for declaration of title to land lies on the plaintiff, who generally must rely on the strength of hisown case and not on the weakness of the defendant's case. See Kodilinye v. Odu (1935) 2 WACA 336: Udegbe v.Nwokafor (1963) LSCN-P 154; Woluchem v. Gudi (1981) 5 SC 291; Piaro v. Tenalo (1976) 12 SC 31. In this case, theAppellant who was the plaintiff at the trial Court had the burden to prove that he is entitled to the declaration whichhe sought at that Court and he was required to discharge this burden of proof on preponderance ofevidence."</span>Per AKINBAMI, J.C.A. (Pp. 40-42, Paras. E-B) - read in context
4. EVIDENCE - PROOF OF TITLE TO LAND: Ways of proving title/ownership of land<span style="font-size: 12px;">"It is also the law that a claim for declaration of title to land may be proved by anyof the five ways stated and restated in numerous decisions of this Court. See Piaro v. Chief W. Tenalo (supra);Idundun v. Okumagba (1976) 1 NMLR 200; Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192; Olukoya v.Ashiru(2006) All FWLR (Pt.322) 1479; (2006) 11 NWLR (Pt.990) 1. These five methods of proving title or ownershipto land are: 1. By traditional evidence: 2. by production of document of title which must be duly authenticated 3. bythe exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inferencethat the person is the true owner of the land: 4. by acts of long possession and enjoyment of the land; and 5. byproof of possession of connected or adjacent land in circumstance rendering it probable that the owner of suchconnected or adjacent land would in addition be the owner of the land in dispute."</span>Per AKINBAMI, J.C.A. (Pp.42-43, Paras. B-A) - read in context
(201
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ELR-46
312(
CA)
5. LAND LAW - DECLARATION OF TITLE TO LAND: Duty of a claimant/plaintiff in an action for declaration of title toland<span style="font-size: 12px;">"I had the privilege and opportunity to preview the lead judgment delivered by mylearned brother F.O AKINBAMI JCA and I agree with the reasoning and conclusion reached therein. In a case fordeclaration of title to land such as in the instant appeal, the onus was on the Respondent to establish his claim bypreponderance of evidence, credible and cogent which he had failed to do. As the claimant, he had to satisfy theCourt upon his pleadings and evidence that he was entitled to the declaration he sought. See the cases of KALA v.POTISKUM 1998 3 NWLR PT. 540. 1, ELIAS v. DISU 1962 1 ALL NLR 214, ADEWUYI v. ODUKWE 2005 ALL FWLR PT.278 1100, TRAGUMMA v. RSHPDA 2003 FWLR PT. 169 and CLIFFORD OSUJI v. NKEMJIKA EKEOCHA 2009 LPELR-28165C."</span>Per WILLIAMS-DAWODU, J.C.A. (Pp. 73-74, Paras. F-C) - read in context
6. LAND LAW - FAMILY PROPERTY/LAND: How is family property created and how does land qualify as a familyland<span style="font-size: 12px;">"It is a matter for judicial notice, that land and property are owned by an individualor family, and that the concept of family property is ingrained in our indigenous society, and the bedrock ofinheritance particularly as it relates to land ownership. This point was emphasized in Usiobaifo Vs. Usibaifo [2001]F.W.L.R. (Pt.61) 1784 at 1799 Per Ibiyeye, JCA who posited in paragraphs D - E thereof and rightly too that: "It issettled law that the concept of family property is original to our indigenous society and the bedrock of our law ofinheritance. The most common circumstance of creating family property is death intestate of land owner, whoseestate is governed by Customary law. Such land devolves to his heirs in perpetuity as family land. Another methodof creating family land is by conveyance inter vivios where land is purchased with money belonging to the family:family land can also be created by the use of the appropriate expression in the Will of the owner of such land. Seethe cases of Olowosago & Ors. V. Adebanjo & Ors. (1988) 4 NWLR (Pt.88) 275 at 287; Lewis V. Bankole 1NLR 81; and Shaw Vs. Kehinde (1947) 18 NLR 129. From the above authorities, it is clear and without doubt that thelaw recognizes the family as an entity under whose canopy a member or members or through their Attorney anaction can be brought to protect such family property."</span>Per AKINBAMI, J.C.A. (Pp. 17-18, Paras. E-E) - read incontext
7. LAND LAW - ALLOTMENT AND PARTITION OF FAMILY LAND/PROPERTY: What partitioning of family landentails<span style="font-size: 12px;">"I ask the question. What does partition connote? That term is applied to thedivision of land, tenement and hereditaments belonging to co-owners and the allotment among them of plots so asto terminate the community of ownership between some or all of them. See AYENI V. SOWEMIMO (1982) 5 S.C. 60.Indeed, partition is one of the ways by which family property can be determined by splitting it up into ownership ofthe constituent members of the family. No doubt, the property may be, but is not invariably divided amongindividual/members of the family so as to vest absolute ownership in individual members. Most often, the divisionmay be among constituent branches of the family. Where this occurs, a new concept of family ownership is createdin as many places as the property is partitioned; each branch thus becoming absolute owners of the portion sopartitioned. See BALOGUN V. BALOGUN 9 WACA 78 and OLORUNFEMI & ORS V. ASHO (2000)2 NWLR (pt 643)843. Partition can be effected orally under the native law and custom; and it could be by deed. See TAIWO V. TAIWO(1958) SCNLR 244 - both modes of partition are however valid. What amounts to a valid partition of land is a matterof fact, which must be established by credible evidence; all joint owners of family land held under native law andcustom must participate in the voluntary partition of the property. Any deed creating such partition, if not executedby all joint owners is not voidable, but void."</span>Per AKINBAMI, J.C.A. (Pp. 23-24, Paras. C-C) - read in context
8. LAND LAW - ALLOTMENT AND PARTITION OF FAMILY LAND/PROPERTY: Effect of partitioning of familyproperty<span style="font-size: 12px;">"The 2nd Appellant in his Amended Written Statement on Oath on pages 203-204of the record of appeal stated in his paragraph 2(e) and (f) as follows: Para 2 "I am the owner of the land in disputeand not the Claimant". Para2 (e) "The said land was partitioned to me after the death of my father i.e Audu BadmusGbadamosi." Para2 (f) "Those that partitioned the land in dispute to me include the following. Late AlbanianBadmus, the last Elerebi of Edemo family. Pa Giwa Omotoye Mr Oguntoyinbo Pa Tijani Oba Mr Saka Agemo MustOlorunkemi Bakare Usman Sunday Olusomoka Yakubu Giwa Seliat Badmus Hadijatu Usman and Salami Badmus".The DW3, Usman Bakare was one of those that partitioned the land to the 2nd Appellant, and on page 208 of therecord of appeal he stated in paragraphs 7 and 8 of his written deposition as follows: 7: "The land in dispute belongsto the 2nd Defendant and not the Claimant" 8: "l was one of those that partitioned the land upon the death of 2ndDefendant's father." DW3, further confirmed under cross-examination that the land was partitioned when he statedas follows: "The land of Pa Gbadamosi was shared into two between the 2nd Defendant and the DW2, the portiongiven to DW2, is there at Oloyunkun farmland." DW2 on page 261 of the record of appeal also stated as follows:"The land was also shared between me and the 2nd Defendant. My own portion is there untouched. It is not truethat l had no entitlement in Edemo family land." I have not seen in the record of appeal, where the Statement of2nd Appellant was discredited in cross examination. I place reliance on the Supreme Court case of Ayeni vSowemimo (1982) 5SC 60 and Olorunfemi & ors v Asho (2000)2 NWLR (PT 643)843. Since the evidenceproffered by the Appellants on the fact that the land in dispute was partitioned has not been demolished by theRespondent, it ceases to be family land as claimed by the Respondent. He has no locus standi to sue in respect ofthat land. Once family land has been partitioned the family or head thereof can no longer maintain an action inrespect thereof, but the member to whom the land has been partitioned to. See the case of Jaiyeola v Abioye (2003)4 NWLR (pt 810) 397 at 422-423 E-A."</span>Per AKINBAMI, J.C.A. (Pp. 24-26, Paras. D-E) - read in context
(201
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ELR-46
312(
CA)
9. LAND LAW - IDENTITY OF LAND: Duty of a Claimant to prove identity of land; Effect of failure to do same<span style="font-size: 12px;">"Counsel for the Respondent, asserted that there was no onus on the Respondentin the instant case to prove the identity of the land in dispute, since the Appellants did not join issues with theRespondent in the pleadings on the point, and he relied on the case of ADEMOYEGUN AMUSAN & ANOR VRUFUS OLAWUNI (2001) LPELR-6976 (CA) at page 18 paras C-E (supra). While this principle of law is not in doubt, itis however, only applicable where a claimant has clearly identified the dimensions or boundaries of the parcel ofland he claims in his pleadings, and the defendant does not join issues challenging the dimensions and boundariesas pleaded by the claimant. It is not applicable where clear dimensions and boundaries of the land claimed are notpleaded. The law is that even where the identity and location of the land in dispute is not contested, the claimantmust in his pleadings and evidence show an identifiable area of land to which his claim relates - Iyaji Vs Eyigebe(1987) 3 NWLR (Pt 61) 523 at 529, Ofume Vs Ngbeke (1994) 4 NWLR (pt 341) 746, Ayuya Vs Yonrin (2011) 10 NWLR(pt 1254) 135, Ogundalu Vs Macjob (2015) 8 NWLR (Pt 1460) 96. Such proof of identity of land is a conditionprecedent sine qua non to the success of the claimant's claim- Alimi Vs Obawole (1998) 6 NWLR (pt 555) 591 DadaVs Dosunmu (2006) 18 NWLR (Pt 1010) 134, Dauda vs Iba (2007) 2 NWLR (Pt 1018) 321, Adu Vs Gbadamosi (2009)6 NWLR (Pt 1136) 110, Fayemi Vs Awe (2009) 15 NWLR (Pt 1164) 315. Appellants' counsel referred to Respondent'sAmended Statement of Claim paragraph 32, wherein Respondent clearly specified the four boundary neighbors ofland in dispute, within Ategbado farmland, On the first side by Idowu Olomofe from Aromojo family in Edemo Streetgranted to him by Edemo family (ii) On the second side by Late Chief John Akinyele the Asamo of Ado-Ekiti (iii) Onthe third side by Late Pa Abudul Owolabi from Elegbira family in Edemo Street (iv) On the fourth side by Late PaSalami Badmus. But that contrary to the boundaries pleaded by the Respondent, the Appellants pleaded inparagraphs 4 and 4 (m) of the Amended Statement of Defence. In reaction to paragraphs 18, 19, 20, 21, 22, 23, 24,25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44 of the statement of claim which aredenied, the Defendants aver in respect thereof as follows: Para 4(m) "The boundaries of the said land in dispute areas follows; (i) On the first side by Opara stream (ii) On the second side by Idowu Olomofe farmland (iii) On the thirdside by Bakare Usman farmland (iv) On the fourth side by Abudul Owolabi." The Appellants gave evidence inrespect of the above. Whilst CW1, the Respondent under cross-examination stated on page 136 of the record ofappeal as follows; "As to the boundaries of the land in dispute known as Ategbado farmland, it was bounded byAduloju Camp, Ogbese river and Federal Polytechnic, Ado-Ekiti, the Reserve Forest, and lastly the Eribi family." TheAppellants' counsel pointed out clearly that the Respondent's evidence on page 136, of the record of appeal is atvariance with his averments in his paragraph 32 of his Statement of Claim. The position of the law places a duty onthe Respondent to prove his case. The evidence of the Respondent is definitely at variance with pleaded facts. Inthe case of Karimu v Lagos State Government (2012) 5 NWLR (pt 1294) 620 at 643 the Court held as follows:"Evidence at variance with pleaded facts must be disregarded. See Umegokwe v Okadigbo (1973) 4 SC 113,Okagbue & Ora v Romaine (1982) NSCC 130 at 137; Adenuga v L.T.C (1950) 13 WACA 125 at 126." Also in thecase of Auta v Ibe (2003) 13 NWLR (pt 837 ) 247 at 265-266 H-A where the Supreme Court held as follows: "Furtherto the above, the evidence adduced by the Appellant and her two witnesses especially PW3 is not only at variancewith her pleadings but also contradictory in material particular and magnitude which in my view must raisesubstantial doubt in the mind of the trial Court as to the authenticity or veracity of the case of the plaintiff. SeeOyeyiola v Adeoti (1973) 1 NMLR 103." The evidence of the Respondent, and his witnesses CW2, and CW3 havefailed to ascertain the boundaries of the land being claimed by the Respondent with certainty and exactitude,therefore the lower Court erred in law when it granted the Claim of the Respondent for declaration of title. I placereliance on the Supreme Court case of Babatola v Oba Aladejana (2001) 6 NSCQR (pt 2) 1017 at 1027 - 1028 H -A,1029 G-H, 1030, B-C where the Court held as follows ; "In a land dispute the boundaries of the land in dispute mustbe proved with certainty such that a surveyor taking the record could produce a survey plan showing with accuracythe land in dispute. In a claim for trespass and injunction the onus is on the plaintiff to prove the identity of the landtrespassed upon with clarity and certainty. This is mandatory because where an area of land is uncertain, it will bedifficult and impossible to prove trespass to the land thereafter grant injunction... it is instructive in a land disputethat a mere mention of names without more is not enough for identification of land...one important way nowcommonly used by parties in land dispute is to establish the identity of the land in dispute by filing a detailed andaccurate survey plan of the land showing the various feature on such land sufficient to point to the clear boundariesthereof...It is trite law that a party must succeed in identifying the land trespassed upon before his claim fordamages can be considered. A party claiming damages for trespass has a duty to satisfy the Court that at the timeof the alleged trespass he was in possession of the particular portion of the land in respect of which the trespasswas committed." In this case the Respondent failed to identify the land in dispute, since the area of location of apiece of land is not the same as the extent and boundaries of the same piece of land. The Respondent failed toprove with exactitude the boundaries of the land he claimed, the failure is fatal to his claim. From all l haveelucidated in this issue, l resolve the issue in favour of the Appellants."</span>Per AKINBAMI, J.C.A.(Pp. 43-48, Paras. B-F) - read in context
(201
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10. LAND LAW - DECLARATION OF TITLE TO LAND: What a party seeking for a declaration of title to land and relieson traditional history as proof of his root of title must plead<span style="font-size: 12px;">"What a party seeking for a declaration of title to land and relies on traditionalhistory as proof of his root of title must plead was defined in the case of CHUKWUEMEKA ANYAFULU & ORS V.MADUEGBUNA MEKA & ORS (2014) LPELR-22336(SC) per Okoro JSC as follows; "It is trite that a party seekingfor a declaration of title to land, who relies on traditional history as proof of his root of title, must plead samesufficiently. That is to say, he must demonstrate in his pleading the original founder of the land, how he founded theland, the particulars of the intervening owners through whom he claims. Where a party has not given sufficientinformation in his pleadings as regards the origin or ownership of the land and the line of succession to himself, hehas just laid foundation for the failure of his claim. See HYACINTH ANYANWU V. ROBERT ACHILIKE MBARA &ANOR (1992) 5 SCNJ. 90, IDUNDUN V. OKUMAGBA (1976) 9 - 10 SC 224, ATANDA V. AJANI (1989) 3 NWLR (Pt. III)511." From the pleadings of the Respondent, in his Amended Statement of Claim in paragraphs 1, 2, 3, 4, 5,9, it isclear that he filed the suit at the lower Court as a traditional chief, and head of the Edemo family of Ado - Ekiti.Respondent in the length and breadth of his pleadings, did not demonstrate the original founder of the land, how hefounded the land, the particulars of intervening owners. Respondent in his paragraph 10 stated that he is the ownerof the land in dispute. This his claim contradicts his claim in paragraphs 1, 2, 3, 4, 5, and 9. The claim of theRespondent based on his own pleadings cannot succeed. See the cases of Oyedeji v Oyeyemi (2008) 6NWLR (Pt1084) 484 at 500: Nwokorobia v Nwogu (2009) 10 NWLR (Pt 1150) 553 at 573. The Respondents claim must failbecause he relied on traditional history in proof of his declaration of title to land but did not establish such facts aswho founded the land, how he founded the land and particulars of the intervening owners through whom he claims.See the Supreme Court case of Ukaegbu v Nwololo (2009) 3 NWLR (Pt.1127) page 194 at 220-221. In this instantappeal, since it is a long established principle of law that a party is bound by his pleadings, the Respondent havingfailed to plead and give evidence of the root of title of Edemo family land that should have been the end of his case,Respondent having failed to prove his case, he is not entitled to judgment. Consequently the appeal is meritoriousand l allow the appeal."</span>Per AKINBAMI, J.C.A. (Pp. 71-73, Paras. B-B) - read in context
11. LAND LAW - IDENTITY OF LAND: Duty of a Claimant to prove identity of land; Effect of failure to do same<span style="font-size: 12px;">"The position of the law is clear and settled as regards the issue of identity of landin a matter where ownership of the land is in issue as herein. The identity of the land must be clearly establishedwith certainty which the respondent herein failed to do, and therefore the orders of the Court below in his favour inthat regard, cannot be allowed to stand."</span>Per WILLIAMS-DAWODU, J.C.A. (P. 74, Paras. D-E) - read in context
12. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Effect of non-compliance with the rules of Court whenraising a preliminary objection<span style="font-size: 12px;">"I must state that the learned counsel for the Appellants in his Appellants' ReplyBrief, rightly pointed out that the preliminary objection as filed by the learned counsel for the Respondent isincompetent, as it contravenes the provisions of Order 10 Rule 1, of the Court of Appeal Rules, 2016. The provisionsof the said Rule mandates any person intending to reply upon a preliminary objection to the hearing of an appealthat he SHALL give the Appellant three clear days notice before the hearing, setting out the grounds of objectionand shall file such notice together with twenty copies thereof with the registry within the same time. I havecarefully studied the Notice of preliminary objection as filed by the Respondent, it contravenes the provisions ofOrder 10 Rule 1. I find that there is nowhere in the Respondent's Notice of preliminary objection where he statedthe grounds of objection. The second provision upon which the Respondent brought the preliminary objection wasabandoned by him. There is no competent preliminary objection before this Court. Consequently the Notice ofpreliminary objection dated 27th day of April 2017 filed on the 28th of April 2017, based on the case of C.B.N vHarns (2017) 11 NWLR (Pt1575) p54 at 76 - 77, H-A is hereby struck out."</span>Per AKINBAMI, J.C.A. (Pp. 15-16,Paras. E-F) - read in context(2
018)
LPELR
-4631
2(CA)
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the
Leading Judgment): This is an appeal against the
judgment of the High Court of Ekiti State sitting at Ado-
Ekiti Judical Division and delivered by A.L. Ogunmoye J., on
the 24th day of November, 2014, wherein the said
judgment was entered in favour of the claimant (now
Respondent).
The Respondent herein had as claimant, instituted an
action in a representative capacity via a writ of summons
filed together with a statement of claim on the 8/11/12
against the defendants (now Appellants). In paragraph 44
of the Amended Statement of Claim subsequently filed on
2/12/2013, the Respondent sought the following reliefs
against the Appellants:
“(i) A declaration that the claimant is entitled to a
certificate of customary right of occupancy on the
land situate, lying and being at Ategbado farmland,
Oloyunkun, off Ago Aduloju, Ikare Road, Ado-Ekiti.
(ii) N2 million general damages for trespass
committed and still being committed by the
Defendants, their agents, privies and or servants on
the Claimant’s
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family aforesaid parcel of land.
(iii) An order of perpetual injunction restraining the
Defendants, their agents, servants and or privies from
further acts of trespass on the Claimant’s family land.
(iv) An order declaring null and void the purported
sa le o f c l a imant ’ s parce l o f l and by the
second defendant to the first Defendant.”
Briefly put, the facts that led to the suit relates to a parcel
of land situate, lying and being at Ategbado farmland,
Oloyunkun, off Ago Aduloju, Ikare Road, Ado-Ekiti. The said
parcel of land is part of a large expanse of land belonging
to the Edemo family, which was sold by the 2nd Appellant,
to the 1st Appellant. The 2nd Appellant is also a member of
the Edemo family. The Ewi of Ado-Ekiti, The Prescribed
Authority in Ado- Ekiti, waded into the matter at the
instance of the 2nd Appellant. After listening to the
evidence of both parties, the Respondent was adjudged the
owner of the land, whilst the 2nd Appellant was ordered to
refund the purchase price to the family which he failed to
do. Hence the action against the appellants.
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The case eventually proceeded for trial on the basis of the
Respondent’s amended statement of claim filed on
2/12/2013 and the Appellants’ amended statement of
defence filed on 11/12/2013 as well as the statement on
oath of the witnesses.
The case of the Respondent was presented through six
witnesses, the Appellants defended themselves through two
witnesses.
Upon adoption of written addresses, the learned trial Judge
delivered judgment on the 24/11/2014 wherein he granted
the reliefs claimed by the respondent.
The Appellants were not satisfied with the said judgment
and consequently filed a Notice of Appeal with ten grounds
of appeal on 5/1/2015.
Parties subsequently filed and served their respective
briefs of argument, which they adopted and relied upon at
the hearing of the appeal on 20/9/2018.
In the appellants’ brief of argument filed on 21/3/2017,
deemed properly filed on the 22/3/2017 the following four
issues were formulated for determination:
(1) Whether from the available evidence on record,
the Respondent who is no longer the Edemo of Ado-
Ekiti, has locus standi to institute the action as the
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Edemo, for and on behalf of the Edemo family, on a
piece of land that has been partitioned to another
person or part of which he admitted he sold to Chief
John Akinyede the Asamo of Ado-Ekiti. (Grounds (a),
(b), (c), and (g) or (1) (2) (3) and (7)).
(2). Whether the Respondent identified and gave the
boundaries of the land in dispute, and if not, whether
his failure, inability, default, neglect and refusal to
identify and give the correct and exact boundaries of
the land in dispute, is not fatal to the case of the
Respondent. (Ground (d) or (4)).
(3) Whether the heavy and wholistic reliance on
Orupe and Igbomoshi farmlands by the learned trial
judge in arriving at his judgment when the two
farmlands are not in dispute is not speculative,
sentimental or extraneous and as such occasioned a
miscarriage of justice. (Ground (I) or (9)).
(4). Whether from the pleadings and the available
evidence on record, the Respondent has discharged
the evidential burden of prove placed on him as to
entitle him to judgment. (Grounds (e), (h) and (i) or
(5) (8) and (9)).
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The Respondent on his part formulated the following issues
for determination:
(i) Whether the respondent had locus standi to
institute this action at the time he did. (Grounds 1, 2,
3 & 7 of the grounds of appeal) or grounds a, b, c and
(g) of the Grounds of Appeal).
(ii) Whether the identity of the land in dispute was in
issue before the trial Court that required strict proof
in view of the availability of documentary and oral
evidence before the trial Court. (Ground (d) or (4) of
the Grounds of appeal).
(iii) Whether the trial Court was not right when it
held that the respondent proved his claims before it
(Grounds (e), (h), (i), or (5), (8) & (9).
Upon a very careful consideration of the issues raised by
the parties, I am of the view that the Appellants issues
encapsulates all the Respondent’s issues, l would resolve
this appeal on Appellants issues.
Before dealing with these issues, it would be necessary to
dispose of the Preliminary objection of the respondent. The
gist of the said objection, argued on pages 5-7 of the
respondent’s brief, was that issues No 3 and 4 in the
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appellants' brief of argument filed on 21st of March, 2017
are incompetent and liable to be struck out, the said issues
having been formulated from ground (1) or (9) of the
Appellants’ grounds of appeal.
Respondent’s counsel submitted that it is trite law, that two
or more issues for determination cannot be formulated
from a single ground of appeal, where such exists, the
issues would be struck out. This is the position of the
Supreme Court in CORPORAL EMMANUEL AMODU V.
THE COMMANDANT, POLICE COLLEGE MAIDUGURI
& OR (2009) LPELR – 467 (SC) AT PAGES 10 – 11
PARAS E – C where the apex Court held thus:-
“It is settled law that a party is not allowed to
formulate more than one issue for determination out
of a ground of appeal even though he can combine
two or more grounds of appeal in formulating an
issue for determination. This is the principle against
proliferation of issues for determination. In the
instant case learned counsel has submitted two issues
out of the single ground of appeal for determination
thereby rendering the issues incompetent.”
In the case of Orji V. The State (2008) 4 SCNJ 85, the
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Court per MUKHTA JSC, held as follows at page 94: -
“Issues for determination are supposed to be distilled from
the grounds of appeal filed by an appellant and not raised
capriciously. They must not out-number the grounds of
appeal, for where they so out-number them there is the
danger that some of the issues do not derive their source
from the grounds of appeal and therefore are not related to
one another. It is trite that an issue that does not so relate
will not be tolerated.”
Similarly in CHIEF B.E.C. OKAFOR & ANOR V.
GEOFFERY EJIOGU (2011) LPELR 3923 (CA) at pages
15 paras D – E, the Court of Appeal held thus:
“It is also settled law that though an issue may be
formulated out of a ground of appeal or from a
combination of grounds of appeal, it is not allowed or
permitted to formulate more than an issue out of a
ground of appeal.”
Issues No. 3 and 4 for determination in the Appellant’s
Brief of Argument were formulated from ground No (i) or
(9) of the Grounds of appeal. This is not allowed or
permitted.
Respondent’s counsel prayed this Honourable Court to
strike
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out the aforesaid issues No 3 and 4 contained in the
Appellant’s Brief of Argument together with the argument
and submission thereon. See; PETROLEUM TRAINING
INSTITUTE V. IYEKE MATHEW & ORS (2011) LPELR
– 4848 (CA) at 19 paras A – C.
ABANDONMENT OF GROUND OF APPEAL NO F OR 6
BY THE APPELLANTS.
It was argued by Respondent’s counsel that, the appellants
did not formulate or distill any issue for determination from
ground No (f) or (6) of their notice of appeal. The said
ground of appeal is deemed abandoned. Learned counsel
urged this Honourable Court to so hold.
In the Appellants’ Reply Brief, the Appellants’ counsel Mr.
Ogunmoroti in his reaction to Respondent’s preliminary
objection referred to Order 10 Rule 1, and Order 17 Rule
3(1), of the Court of Appeal Rules, 2016 which provide as
follows;
“1. A Respondent intending to reply upon a
preliminary objection to the hearing of the appeal,
shall give the Appellant three clear days notice
thereof before the hearing, setting out the grounds of
objection, and shall file such notice together with
twenty copies thereof
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with the registry within the same time.”
“3(1) A person desiring to appeal to the Court against
any judgment. Sentence or order of the Court below,
whether in the exercise of its original or of its
appellate jurisdiction, shall commence his appeal by
sending to the registrar of the Court below a notice of
appeal or notice of application for leave or appeal or
notice of application for extension of time within
which such notice shall be given, as the case may be,
in the form of such notice respectively set forth as
forms 1, 2, 3, 4, 5 or 7 in the Second Schedule to
these Rules.”
Appellants’ learned counsel submitted that, a notice of
preliminary objection filed by a Respondent, has one main
purpose in mind namely to terminate the whole appeal, but
as it were the Respondent is merely attacking issues 3 and
4 of the Appellants’ brief of argument. In essence the
appeal subsists even if this Court should strike out the said
issues. Learned counsel noted that nothing was canvassed
in respect of Order 17 Rule 3 (1).
It was further submitted by Appellants’ counsel, that a
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Respondent who wishes to attack a subsidiary part of an
appeal, is enjoined to f i le a motion, and not as
incompetently done by the Respondent. Learned counsel
urged this Court to strike out the preliminary objection, for
being incompetent. See Okafor V. B.D.U. Jos Branch
(2017) 5 NWLR (Pt 1559) P 385 at 408, C – E.
Learned counsel submitted that this Court, has the power
to refuse to entertain the notice of preliminary objection
filed by the Respondent. See C.B.N. V. Hams (2017) 11
NWLR (Pt 1575) P 54 at 76 – 77, H – A.
See also KENTE V. ISHAKU (2017) 15 NWLR (PT
1587) P 94, 106, D – F.
See also ODUNUKWE V. OFOMATA (2010) 18 NWLR
(Pt 1225) Pg 404 at 423, E – G.
It was pointed out by Mr. Ogunmoroti, that the Respondent
seemed to have waived his right to the preliminary
objection, when on page 4 of his brief of argument he
formulated (3) three issues from the grounds of appeal
before canvassing argument on the said preliminary
objection on pages 5 – 7 of his brief.
Learned counsel submitted that, the Appellants did not
formulate two issues from a single ground of
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appeal, but what happened was a technical error, in the
numbering of the grounds of appeal and the issues.
Issue 3, for instance is formulated from ground (f) or (6)
and not ground 1 or 9 as inadvertently done by the
Appellants.
The Appellants distinctively argued issue 3 based on
ground (f) or (6) in their brief of argument.
Ground(f) or (6) of the Appellants’ notice of appeal dated
5th October 2015, and filed on the same day with the leave
of the Honourable Court is as follows;
“(f) The learned trial judge erred in law when held as
follows;
“It was the evidence of the CW1, and CW2, that the
present place where the 2nd Defendant, built his
house was given to him by the Edemo family and his
father never farmed on the land.
It was also their evidence that the 2nd Defendant’s
father, never farmed on the Edemo family land at
Orupe and Igbomoshi where portion of same was
granted to him for building purpose. The 2nd
defendant and his witnesses had no answer to the
above assertions and they remained silent on them
both in their pleadings and evidence before the
Court.
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To worsen matters, neither the CW1, nor CW3, was
cross-examined on these two weighty allegations
which negatively ate deep into the defendant’s case
like a malignant ulcer.
And this has occasioned a miscarriage of Justice.”
Appellants’ counsel submitted that, the issue formulated
from this single ground is as follows;
“(3) Whether the heavy and wholistic reliance on
Orupe and Ogbomoshi farmlands by the learned trial
judge in arriving at his judgment, when the two
farmlands are not in dispute is not speculative,
sentimental or extraneous and as such occasioned a
miscarriage of Justice.”
Learned counsel noted that the argument in respect of the
above issue is contained on pages 18 – 21 of the Appellants’
brief of argument with following heading -
“Issue 3 Reliance on Orupe and Igbomoshi
farmlands”
Appellants’ counsel pointed out that ground (i) or 9 of the
Appellants’ notice of appeal is as follows;
“(i) The learned trial judge erred in law in
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awarding the sum of Two Hundred Thousand Naira
against the Appellants.
And this has occasioned a miscarriage of Justice.”
It was reiterated by Appellants’ counsel that, there is no
issue relating to damages in issue 3, of the Appellants’ brief
of argument.
Learned counsel then submitted that, from the above, the
Appellants did not abandon ground (f) or 6 of their grounds
of appeal, but same was argued in the Appellants’ brief of
argument.
In the event, the Appellants could not have been said to
have formulated two issues from a ground of appeal, save
for the inadvertent insertion of ground (i) or (9) instead of
(f) or (6) under issue 3.
Appellants’ counsel reiterated the fact that, learned counsel
for the Respondent is not attacking the notice of appeal,
but if he is, though not conceding, the use of the lettering
(a) (b) (c) instead of 1, 2, 3 etc. on the notice of appeal is
not fatal since nobody is misled nor is any miscarriage of
justice occasioned. The Courts are not bordered on
technicalities these days but on justice. Wrong lettering or
heading will not vitiate a notice of appeal.
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See Clev Josh Ltd V Tokimi (2008) 13 NWLR
(Part1104) p 422 at 439 -441, F-D.
For the effect of non compliance with the Rules Appellants’
counsel referred to Order 21 Rule 2 and 3(1-2) of the Court
of Appeal Rules 2016, which states as follows;
“2. The Court may direct a departure from these
Rules in anywhere this is required in the interest of
justice.
3 (1) The Court may, in an exceptional circumstance,
and where it considers it in the interest of justice so
to do, waive compliance by the parties with these
Rules or any part thereof.
(2) Where there is such waiver of compliance with the
Rules, the Court may, in such manner as it thinks
right, direct the Appellant or the Respondent as the
case may be, to remedy such non-compliance or may,
notwithstanding, order the appeal to proceed or give
such direction as it considers necessary in the
circumstance.”
Concluding, appellants’ counsel urged this Court to dismiss
the objection.
However, before I consider the appeal on the merit, I will in
accordance with the time honoured position of the law,
first
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resolve the preliminary objection of the Respondent to the
Appellants’ Notice of appeal. This is against the backdrop
of the settled position of the law, that as the purpose of a
preliminary objection to an appeal is to truncate the
hearing of the appeal on the merits, where the preliminary
objection against the appeal succeeds, there is no need to
consider such appeal on the merit.
The Respondent’s preliminary objection to the instant
appeal is by a Notice of Preliminary Objection brought
pursuant to Order 10 Rule 1, and Order 17 Rule 3 (1) of the
2016 Rules of this Court, and under its inherent
jurisdiction. In the Notice, the Respondent prays for the
following: -
Whether issues Nos 3 and 4 in the Appellants’ brief of
Argument filed on 21st of March, 2017 are
incompetent and liable to be struck out, the said
issues having been formulated from Ground (1) or (9)
of the Appellants’ grounds of appeal.
I must state that the learned counsel for the Appellants in
his Appellants’ Reply Brief, rightly pointed out that the
preliminary objection as filed by the learned counsel for the
Respondent is incompetent, as it contravenes
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the provisions of Order 10 Rule 1, of the Court of Appeal
Rules, 2016. The provisions of the said Rule mandates any
person intending to reply upon a preliminary objection to
the hearing of an appeal that he SHALL give the Appellant
three clear days notice before the hearing, setting out the
grounds of objection and shall file such notice together
with twenty copies thereof with the registry within the
same time.
I have carefully studied the Notice of preliminary objection
as filed by the Respondent, it contravenes the provisions of
Order 10 Rule 1. I find that there is nowhere in the
Respondent’s Notice of preliminary objection where he
stated the grounds of objection.
The second provision upon which the Respondent brought
the preliminary objection was abandoned by him. There is
no competent preliminary objection before this Court.
Consequently the Notice of preliminary objection dated
27th day of April 2017 filed on the 28th of April 2017,
based on the case of C.B.N v Harns (2017) 11 NWLR
(Pt1575) p54 at 76 - 77, H-A is hereby struck out.
Having disposed of the preliminary objection l will proceed
to determine the main appeal on the merit.
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As l stated earlier in this judgment Appellants’ issues will
conveniently determine this appeal.
Issue 1 “Whether from the pleadings and the
available evidence on record, the Respondent has
discharged the evidential burden of prove placed on
him as to entitle him to judgment.”
The main claim of the Respondent at the lower Court was
for declaration of title to land, trespass, injunction, and an
order to declare the sale of the land null and void. The
Respondent claimed against the Appellants in a
representative capacity as the Edemo of Ado-Ekiti as well
as the head of the Edemo family. These claims are on family
land, as can be gleaned from the Respondent’s Statement
of Claim.
It is a matter for judicial notice, that land and property are
owned by an individual or family, and that the concept of
family property is ingrained in our indigenous society, and
the bedrock of inheritance particularly as it relates to land
ownership. This point was emphasized in Usiobaifo Vs.
Usibaifo [2001] F.W.L.R. (Pt.61) 1784 at 1799 Per
Ibiyeye,
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JCA who posited in paragraphs D - E thereof and rightly too
that:
“It is settled law that the concept of family property is
original to our indigenous society and the bedrock of
our law of inheritance. The most common
circumstance of creating family property is death
intestate of land owner, whose estate is governed by
Customary law. Such land devolves to his heirs in
perpetuity as family land. Another method of creating
family land is by conveyance inter vivios where land is
purchased with money belonging to the family: family
land can also be created by the use of the appropriate
expression in the Will of the owner of such land. See
the cases of Olowosago & Ors. V. Adebanjo & Ors.
(1988) 4 NWLR (Pt.88) 275 at 287; Lewis V. Bankole
1 NLR 81; and Shaw Vs. Kehinde (1947) 18 NLR 129.
From the above authorities, it is clear and without doubt
that the law recognizes the family as an entity under whose
canopy a member or members or through their Attorney an
action can be brought to protect such family property.
The Appellants at the lower Court, challenged the
Respondent’s locus standi to institute the action, in his
capacity as the Edemo of Ado- Ekiti and head of
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the Edemo family. They tried to tender a letter, at the trial
before the lower Court in which the Ewi of Ado -Ekiti the
traditional ruler, striped the Respondent of his title of
Edemo.
The Respondent in his Amended Statement of Claim,
described himself as the Edemo and head of Edemo family.
He averred in paragraphs 3, 4, 5 that he filed the claim on
behalf of the Afojoweye Omotoye branch of the Edemo
family.
The lower Court rejected the tendering of the letters of
suspension and deposition of Respondent as the Edemo of
Ado - Ekiti dated 5th March 2012, and 26th March 2012
respectively.
The issue here touches on DW6, Chief Obayemi
Aladetoyinbo a witness subpoenaed to come and tender
documents simply called subpoena duces tecum i.e purely
to tender documents. Such a witness is summoned or
ordered to appear to produce specified documents, and not
to testify as in the case of subpoena ad testificandum which
is to testify. The different types of subpoena were
highlighted in the case of AKINTAYO V JOLAOYE (2010)
LPELR-3688 where this Court held that;
"Subpoena is an order of Court used for securing a
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witness’s attendance in Court of trial for the purpose
of testifying and to produce some documents on
behalf of the party who applied for the issue of such
subpoena. Where the order is to secure the
attendance of a witness for the purpose of testifying
in Court, it is simply called subpoena ad testificadum
where the order commands the witness to produce
certain documents at the trial of an action, it is called
subpoena duces tecum. If it is expected that apart
from producing the documents, the person is also to
give evidence, the subpoena would be subpoena ad
testicandum et duces tecum.”
The subpoena issued in this case was subpoena tecum
simpliciter and therefore it was a command to produce
documents and not testify.
The learned trial judge erred in law by rejecting the letters
sought to be tendered by, DW6. The law has defined the
role of a person subpoenaed to produce a document and
not to testify. A person subpoenaed to produce, need not
enter the witness box as his duty is merely to produce to
the Court the documents named in the subpoena.
In the case of EDOHO V ATTORNEY GENERAL OF
AKWA IBOM & ORS (1996) 1 NWLR (Pt. 425) 488 at
498 where this Court held thus:
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A person merely called to produce documents under
subpoena duces tecum pursuant to Section 193 of the
Evidence Act need not be sworn if the document either
requires no proof or is to be proved by other means and if
not sworn, or unnecessarily, he cannot be crossed
examined. In other words, the mere fact that a person was
erroneously sworn before he produced and tendered the
documents will not derogate from the purpose for which he
was subpoenaed to the Court.
At page 225 of the record of appeal the rejected letter of
deposition states as follows:
“As a result of all the above, especially his
flagrant disrespect to the custom and tradition of
Ado- Ekiti and especially the Ewi institution, James
Bamidele William Aduloju is hereby deposed as the
Edemo of Ado- Ekiti.”
I disagree with the lower Court in rejecting the letters
sought to be tendered and I find support also in the cases
of TEWOGBADE V AGBABIAKA (2001) 5 NWLR (PT.
705) 52-53 which relied on Section 192 and 193 of the
Evidence Act.
See also the case of lyanda v Laniba ll (2003) 1 NWLR
(PT 801) PAGE 267 at 296 -297.
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I agree with the contention of Appellants’ counsel that a
document wrongly rejected in evidence can be re-admitted.
See Buhari v I.N.E.C (2008) 19 NWLR (PT1120) 246
AT 386 para F.
The letters of suspension and deposition ought to be
admitted by the lower Court, premised on the decision in
the above case. If the learned trial judge had admitted the
letters, the contents of the letters would have revealed that
the Respondent lacked the capacity to sue as the Edemo of
Ado-Ekiti, for and on behalf of the Edemo family. In the
circumstance of this case, the Respondent being a member
of the Edemo family, can sue as an ordinary member of the
family, but not in a representative capacity as he has done
in this case.
It can be gleaned from the written depositions of 2nd
Appellant, the DW2, DW3, and DW4, in the record of appeal
that they were all very emphatic that the Respondent was
no longer a traditional Chief, nor was he the head of the
Edemo family of Ado -Ekiti. The Respondent’s counsel
therefore ought to have cross-examined these witnesses as
was rightly argued by Appellants’ counsel.
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The Appellants’ counsel contended that the Respondent
who is no longer the Edemo of Ado- Ekiti, and head of
Edemo family, has no locus standi to sell family land, more
especially one that has been partitioned to another person.
Also learned counsel pointed out the fact that the
Respondent admitted that he sold land to Chief John
Akinyele the Asamo of Ado-Ekiti.
I ask the question. What does partition connote? That term
is applied to the division of land, tenement and
hereditaments belonging to co-owners and the allotment
among them of plots so as to terminate the community of
ownership between some or all of them. See AYENI V.
SOWEMIMO (1982) 5 S.C. 60. Indeed, partition is one of
the ways by which family property can be determined by
splitting it up into ownership of the constituent members of
the family. No doubt, the property may be, but is not
invariably divided among individual/members of the family
so as to vest absolute ownership in individual members.
Most often, the division may be among constituent
branches of the family. Where this occurs, a new concept of
family ownership is created in as many places as the
property is
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partitioned; each branch thus becoming absolute owners of
the portion so partitioned. See BALOGUN V. BALOGUN 9
WACA 78 and OLORUNFEMI & ORS V. ASHO (2000)2
NWLR (pt 643) 843. Partition can be effected orally
under the native law and custom; and it could be by deed.
See TAIWO V. TAIWO (1958) SCNLR 244 - both modes
of partition are however valid. What amounts to a valid
partition of land is a matter of fact, which must be
established by credible evidence; all joint owners of family
land held under native law and custom must participate in
the voluntary partition of the property. Any deed creating
such partition, if not executed by all joint owners is not
voidable, but void. I shall now proceed to examine the
evidence led in the Court below to see whether the
principles of law relating thereto have been satisfied.
The 2nd Appellant in his Amended Written Statement on
Oath on pages 203-204 of the record of appeal stated in his
paragraph 2(e) and (f) as follows:
Para 2
“I am the owner of the land in dispute and not the
Claimant”.
Para2 (e)
“The said land was partitioned to me after the death of my
father i.e Audu Badmus Gbadamosi.”
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Para2 (f)
“Those that partitioned the land in dispute to me include
the following.
Late Albanian Badmus, the last Elerebi of Edemo family.
Pa Giwa Omotoye
Mr Oguntoyinbo
Pa Tijani Oba
Mr Saka Agemo
Must Olorunkemi
Bakare Usman
Sunday Olusomoka
Yakubu Giwa
Seliat Badmus
Hadijatu Usman and
Salami Badmus”.
The DW3, Usman Bakare was one of those that partitioned
the land to the 2nd Appellant, and on page 208 of the
record of appeal he stated in paragraphs 7 and 8 of his
written deposition as follows:
7: “The land in dispute belongs to the 2nd Defendant and
not the Claimant”
8: “l was one of those that partitioned the land upon the
death of 2nd Defendant’s father.”
DW3, further confirmed under cross-examination that the
land was partitioned when he stated as follows: “The land
of Pa Gbadamosi was shared into two between the 2nd
Defendant and the DW2, the portion given to DW2, is there
at Oloyunkun farmland.”
DW2 on page 261 of the record of appeal also stated
as follows:
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“The land was also shared between me and the 2nd
Defendant. My own portion is there untouched. It is not
true that l had no entitlement in Edemo family land.”
I have not seen in the record of appeal, where the
Statement of 2nd Appellant was discredited in cross
examination. I place reliance on the Supreme Court case of
Ayeni v Sowemimo (1982) 5SC 60 and Olorunfemi & ors
v Asho (2000)2 NWLR (PT 643)843. Since the evidence
proffered by the Appellants on the fact that the land in
dispute was partitioned has not been demolished by the
Respondent, it ceases to be family land as claimed by the
Respondent. He has no locus standi to sue in respect of that
land. Once family land has been partitioned the family or
head thereof can no longer maintain an action in respect
thereof, but the member to whom the land has been
partitioned to. See the case of Jaiyeola v Abioye (2003) 4
NWLR (pt 810) 397 at 422-423 E-A.
In Respondent’s Additional Written Statement on Oath on
page 92, of the record of appeal he stated “That the area of
land which Williams Aina Aduloju allocated to the late
Chief
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John Akinyele the Asamo of Ado-Ekiti was part of the places
which second defendant wrongly sold to the first defendant
without prior consent and knowledge of Edemo family”.
It was rightly pointed out by Appellants’ counsel that the
Respondent cannot successfully maintain an action on a
piece of land already sold to Late Chief Akinyele the Asamo
of Ado-Ekiti. Therefore the lower Court erred in law when it
granted the land of Chief John Akinyele to the Respondent.
See the cases of (1) Attah v. Idi (2015) 2 NWLR (pt
1443) 385 at 400-401 and the case of Tabiowo v Disu
(2008) 7 NWLR (pt 1087) 533 at 545 D-F.
From all l have elucidated l resolve issue 1 in Favour of the
Appellants.
Appellants’ counsel Mr.Ogunmoroti in arguing issue 2
“Whether the Respondent identified and gave the
boundaries of the land in dispute, and if not, whether
his failure, inability, default, neglect and refusal to
identify and give the correct and exact boundaries of
the land in dispute, is not fatal to the case of the
Respondent.”
He referred to paragraphs 31, 32 and 44 ( i ) of
Respondent’s amended statement of claim dated 2nd
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December 2013, and filed on the same day which states as
follows;
Para 31
“The entire Claimant’s family land at Ategbado is
bounded as follows;
(i) On the first side is the forest reserved, owned by
the Ekiti State Ministry of Agriculture
(ii) On the second side by the Federal Polytechnic
Ado-Ekiti with river Ogbese forming the boundary
(iii) On the third side by Eribi family land
(iv) On the fourth side by Ago Aduloju farmland.”
Para 32
“Claimant however avers that the specific area of the
land in dispute within Ategbado farmland Oloyunkun
off Ago Aduloju Ikare Road, Ado-Ekiti, wherein
second defendant unlawfully and without prior notice
of Edemo family, sold to the first defendant, has the
following boundaries:
(i) On the first side by Idowu Olomofe from Aromojo
family in Edemo Street granted to him by Edemo
family
(ii) On the second side by Late Chief John Akinyele
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the Asamo of Ado-Ekiti
(iii) On the third side by Late Pa Abudul Owolabi from
Elegbira family in Edemo Street.
(iv) On the fourth side by Late Pa Salami Badmus.”
Para 44(i)
“A declaration that the claimant is entitled to a
certificate of customary right of occupancy on the
land situated, lying and being at Ategbado farmland
Oloyunkun, off Ago Aduloju, Ikare Road Ado-Ekiti.”
Mr. Ogunmoroti submitted that the Respondent gave
evidence in respect of same.
But, contrary to the boundaries pleaded by the Respondent,
the Appellants pleaded in paragraphs 4 and 4(m) of the
amended statement of defence filed on 11th of December
2013 as follows;
Para 4
“In reaction to paragraphs 18, 19, 20, 21, 22, 23, 24,
25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38,
39, 40, 41, 42, 43 and 44 of the statement of claim
which are denied, the Defendants aver in respect
thereof as follows;”
Para 4(m)
“The boundaries of the said land in dispute are as
follows;
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(i) On the first side by Opara stream
(ii) On the second side by Idowu Olomofe farmland
(iii) On the third side by Bakare Usman farmland
(iv) On the fourth side by Abudul Owolabi.”
The Appellants gave evidence in respect of the above.
Whilst CW1, the Respondent under cross-examination
stated on page 136 of the record of appeal as follows;
“As to the boundaries of the land in dispute known as
Ategbado farmland, it was bounded by Aduloju Camp,
Ogbese river and Federal Polytechnic, Ado-Ekiti, the
Reserve Forest, and lastly the Eribi family.”
It was surmised by Mr Ogunmoroti that definitely from the
above, the Respondent does not know the boundaries or
extent of the land in dispute, because by his paragraph 32,
of the amended statement of claim, he was specific about
the area, extent and boundaries of the land in dispute
whereas, he went on a voyage of discovery like Christopher
Columbus and began to give wrong, fake, false and
inconsistent boundaries of the land contrary to his
pleadings.
Learned counsel contended that, evidence at
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8) LP
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CA)
variance with the pleadings must be disregarded. See
Karimu V. Lagos State Government (2012) 5 NWLR
(Pt 1294) p 620 at 643, where the Court held as follows;
“Evidence at variance with pleaded facts must be
disregarded. See Emegokwue V. Okadigbo (1973) 4
SC 113 Okagbue & Ors V. Romaine (1982) NSCC 130
at 137 Adenuga V. L.T.C (1950) 13 WACA 125 at 126.”
See also Auta v Ibe 2003 13 NWLR (Pt 837) p 247 at
265 – 266 H – A where the Supreme Court held as follows;
“Further to the above, the evidence adduced by the
appellant and her two witnesses especially PW3, is
not only at variance with her pleadings but also
contradictory in material particular, and magnitude
which in my view, must raise substantial doubt in the
mind of the trial Court as to the authenticity or
veracity of the case of the plaintiff. See Oyeyiola V.
Adeoti (1973) 1 NMLR 103.”
CW2, Olusomoka Sunday under cross-examination on pages
137 – 138 of the record of appeal stated as follows;
“I made two written depositions in respect of this
suit... I made the statement before a lawyer... As to
the boundaries of the land in dispute, I may not
31
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8) LP
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CA)
remember all of them. It has boundary with Aduloju
Camp.”
Mr. Ogunmoroti referring to the above evidence of
the Respondent, unequivocally stated that, the land in
dispute has no boundary with Aduloju Camp. Learned
counsel submitted that on page 29 of the record of appeal
CW2, stated the boundaries of the land as follows;
(i) On the first side by Idowu Olomofe from Aromojo
family in Edemo Street granted to him by Edemo
family
(ii) On the second side by Late Chief John Akinyele
the Asamo of Ado-Ekiti
(iii) On the third side by Late Pa Abudul Owolabi from
Elegbira family in Edemo Street
(iv) On the fourth side by Late Pa Salami Badmus.”
Mr. Ogunmoroti reiterated the fact that definitely, the
Respondent, and CW2, who made his written deposition
before a lawyer, do not know the boundaries of the land in
dispute which is fatal to the Respondent’s case.
The evidence of CW3, Idowu Aduloju on page 237 of the
record of appeal, on the boundaries of the land in dispute
under cross-examination is as follows;
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8) LP
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CA)
“The land in dispute was at Ategbado along
Oloyunkun Road. I cannot talk about the boundary.”
Whereas, on pages 17 and 18 of the record of appeal, CW3
stated the boundaries of the land in dispute as follows;
(i) On the first side by Idowu Olomofe from Aromojo
family in Edemo Street granted to him by Edemo
family
(ii) On the second side by Late Chief John Akinyele
the Asamo of Ado-Ekiti
(iii) On the third side by Late Pa Abudul Owolabi from
Elegbira family in Edemo Street
(iv) On the fourth side by Late Pa Salami Badmus.”
Mr. Ogunmoroti restated the fact that, the Respondent and
his witnesses have failed to ascertain the boundaries of the
land in dispute with certainty and exactitude, therefore the
declaration extended, granted or awarded to the
Respondent must fail and he urged this Honourable Court
to allow this appeal, set aside the judgment of the lower
Court and dismiss the claim of the Respondent. See
Ukaegbu v Nwololo (2009) 3 NWLR (Pt 1127) p 194 at
233 – 234 H – A.
See also Bassey V. Ekanem (2001) 1 NWLR (Pt 694) p
360
33
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8) LP
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312(
CA)
at 373 A – B where the Court held as follows;
“The barometer for ascertaining the identity of land
is by reference to its boundaries, distinctive features
and location as positively pleaded and supported by
credible evidence duly adduced at the trial.”
See also Babatola v. Oba Aladejana (2001) 6 NSCQR
(Part 2) pg 1017at 1027 – 1028 H – A, 1029 G – H,
1030, B – C where the Supreme Court held as follows;
“In a land dispute the boundaries of the land in
dispute must be proved with certainty such that a
surveyor taking the record could produce a survey
plan showing with accuracy the land in dispute. In a
claim for trespass and injunction the onus is on the
plaintiff to prove the identity of the land trespassed
upon with clarity and certainty. This is mandatory
because where an area of land is uncertain, it will be
difficult and impossible to prove trespass to the land
thereafter grant injunction... it is instructive in a land
dispute that a mere mention of names without more
is not enough for identification of land...one
important way now commonly used by parties in land
dispute is to
34
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8) LP
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CA)
establish the identity of the land in dispute by filing a
detailed and accurate survey plan of the land showing
the various features on such land sufficient to point
to the clear boundaries thereof...It is trite law that a
party must succeed in identifying the land trespassed
upon before his claim for damages can be considered.
A party claiming damages for trespass has a duty to
satisfy the Court that at the time of the alleged
trespass he was in possession of the particular
portion of the land in respect of which the trespass
was committed.”
Learned counsel reiterated the fact that it is the duty of the
Respondent, to identify the land in dispute since area of
location of a piece of land is not the same thing, as the
extent and boundaries of the same piece of land.
And, since the Appellant denied the boundaries claimed by
the Respondent in his pleadings, the Respondent is duty
bound to prove with exactitude the boundaries of the land
claimed by him, and failure is fatal. Learned counsel urged
this Honourable Court, to allow the appeal and dismiss the
case of the Respondent. What is more, the Respondent was
not in possession as at the time of the alleged trespass
35
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8) LP
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CA)
go ing by h i s re l i e f ‘A ’ . See Babatola V Oba
Aladejana (Supra).
In his reply to issue 2, Respondent’s learned counsel
Mr . Adewumi re ferred to paragraph 8 o f the
Respondent’s Amended Statement of claim on page 165, of
the Record of appeal wherein he averred thus: -
“8. Claimant states that land in dispute is situate,
lying and being at Ategbado farmland Oloyunkun, off
Ago Aduloju, Ikare Road, Ado Ekiti.”
And Appellants in paragraph 2, of their Amended
Statement of defence on page 196 of the Record, averred in
response to paragraph 8 of the respondent’s Amended
Statement of claim as follows:
“The defendants admit paragraphs 6, 7 and 8 of the
statement of claim.”
Appellants further averred in paragraph 4 (j) and (c) of
their Amended Statement of Defence on page 198, of the
Record thus: -
“4 (j) The land in dispute is the property of the 2nd
defendant and has lawfully alienated same......
(o) Idowu Aduloju was never the chairman of
36
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8) LP
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312(
CA)
claimant’s land committee of Ategbado farmland or
where at all. Claimant has no land committee.
(i) Idowu Aduloju knew 2nd defendant granted and
sold the land in dispute to the 1st defendant. 2nd
defendant even discussed the issue of sale with Idowu
Aduloju who was happy at the sale.”
In the course of trial of this suit, learned counsel for the
2nd appellant filed a motion on notice for an order of
interlocutory injunction restraining the respondent and his
agents from disturbing farming activities of the 2nd
appellant on the land in dispute.
Under cross examination on page 240 of the record, the 1st
appellant testified thus: -
“I had been farming on the land with time before I
eventually purchased the land in dispute from him.”
In his evidence in chief, the 2nd appellant stated in
paragraph 2 of page 203 of the record thus: -
“2. I am the owner of the land in dispute and not the
claimant.” Under cross examination, the 2nd appellant on
page 266 of the record testified thus: -
“I know the boundary of the land in dispute.” Respondent’s
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8) LP
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CA)
learned counsel submitted that the identity of the land in
dispute was not in issue. It is trite that where the identity of
the land in dispute is not in issue, there is no need to file its
survey plan or make any further description of the land.
See: ARABE V. ASANLU (1980) 5 – 7 SC 78; APATA V.
OLANLOKUN (2004) 18 WRN 139 CA at 147 lines 45 –
50.
Respondent’s learned counsel referred to the case of
BAREJ V. GUNDUMA (2001) 13 NWLR (Pt 731) 673 at
687 paras D – F wherein, the Court held that where it is
clear from the pleadings of the parties, the evidence
adduced including exhibits tendered by the respective
parties that the identity of the land claimed by the claimant
is not in doubt there is no need to prove identity of the
disputed land.
Similarly in MADAM ISABELLA AKINBANBI & ORS V.
OMOTAYO DANIEL & ORS (1977) LPELR – 340 (SC) at
page 7 paras A – C the Supreme Court held that where
both parties knew the land in dispute as in the instant case,
there was no need for identification.
And, as revealed by the appellants in the instant case
above, the parties did not make the identity of the land an
issue.
38
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8) LP
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312(
CA)
The Court has held in ADEMOYEGUN AMUSAN & ANOR
V. RUFUS OLAWUNI (2001) LPELR – 6976 (CA) at
page 18 paras C – E thus: -
“It is settled law that the burden of proof of the
boundaries and thus identity of land in dispute would
not exist where such is not made an issue. For the
purpose of declaration, identity will only be an issue if
the defendant in his statement of defence made it
one. See: EZEUDU V. OBIAGWU (1986) 2 NWLR (Pt
21) 200 at 210; FATUNDE V. ONWOAMANAM (1990)
2 NWLR (Pt 132) 322 at 328 and OLOGUNLEKO V.
IKUEMENO (1993) 2 NWLR (Pt 273) 16 at 24.”
It was observed by Respondent’s learned counsel that,
learned counsel for the appellants made a heavy weather of
the fact that different names were ascribed to the boundary
men in his Brief of Argument. It is trite that where parties
are in agreement with the location of the land in dispute, as
in the instant case, the fact that different names are given
of the boundaries or location is of no moment. See: MRS.
ODEDELE & ANOR V. ALHAJA FAILAT AKANKE
(2012) LPELR – 9701 (CA) at page 19 paras C – F.
It was stated by Respondent’s counsel that the determining
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8) LP
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CA)
factors that put an identity of land into question are the
averments in the pleadings. In the instant case the
appellants admitted both in their pleadings and evidence
that they knew the land in dispute. Therefore, the identity
of land was not in dispute before the trial Court. See:JOHN
ATANDA V. MAMUDU ILIASU (2012) LPELR – 19662
(SC).
Finally on this issue, Respondent’s counsel submitted, that
the land in dispute was known to both parties, the parties
did not join issue on the identity of the disputed land, and
the evidence of both parties on record revealed that the
land in dispute was known to them. Consequently, there
was no need for the respondent to prove identity of the
disputed land. Learned counsel urged this Honourable
Court to so.
In resolving this issue 2, l must state that, there is no doubt
that the law is firmly settled and needs no restatement that
a plaintiff or Claimant who claims or seeks for declaration
of title to land or right to statutory right of occupancy must
give credible or believable evidence to establish or indicate
his ownership of the land to enable the Court exercise its
discretion in his favour.
40
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8) LP
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312(
CA)
The Claimant or the Plaintiff must also identify the land or
parcel of land he claims with clarity. This is imperative
particularly where such Claimant or Plaintiff is also seeking
for Order of Injunction to restrain his adversary from
trespassing or further trespassing or encroaching upon the
land or res he claims.
It is when he has been able to prove all of these that onus
will shift on the Defendant to show a better title. The
Claimant or the Plaintiff in an action for declaration of title
is only required to prove his case on the balance of
probabilities and he can do it in any of the five ways
established by the decisions of the apex Court in the land. I
call in aid the following decisions:-
1.NAPOLEON ORIANZI VS THE A.G. OF RIVERS &
ORS (2017) 6 NWLR (PT.1561) 224 AT 264 E-H â 265
264 E-H - 265 A - C per GALINJE, JSC who said:-
Clearly, the appellant set out a claim for declaration of title
to the disputed property. The law is settled that the burden
of proof in a claim for declaration of title to land lies on the
plaintiff, who generally must rely on the strength of his own
case and not on the weakness of the defendant's case.
41
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8) LP
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CA)
SeeKodilinye v. Odu (1935) 2 WACA 336: Udegbe v.
Nwokafor (1963) LSCN-P 154; Woluchem v. Gudi
(1981) 5 SC 291; Piaro v. Tenalo (1976) 12 SC 31.
In this case, the Appellant who was the plaintiff at the trial
Court had the burden to prove that he is entitled to the
declaration which he sought at that Court and he was
required to discharge this burden of proof on
preponderance of evidence.
It is also the law that a claim for declaration of title to land
may be proved by any of the five ways stated and restated
in numerous decisions of this Court. See Piaro v. Chief W.
Tenalo (supra); Idundun v. Okumagba (1976) 1 NMLR
200; Makanjuola v. Balogun (1989) 3 NWLR (Pt.108)
192; Olukoya v. Ashiru(2006) All FWLR (Pt.322) 1479;
(2006) 11 NWLR (Pt.990) 1. These five methods of
proving title or ownership to land are:
1. By traditional evidence:
2. by production of document of title which must be duly
authenticated
3. by the exercise of numerous and positive acts of
ownership over a sufficient length of time to warrant the
inference that the person is the true owner of the land:
4. by acts of long possession and enjoyment of the land; and
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8) LP
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CA)
5. by proof of possession of connected or adjacent land in
circumstance rendering it probable that the owner of such
connected or adjacent land would in addition be the owner
of the land in dispute.
Counsel for the Respondent, asserted that there was no
onus on the Respondent in the instant case to prove the
identity of the land in dispute, since the Appellants did not
join issues with the Respondent in the pleadings on the
point, and he relied on the case of ADEMOYEGUN
AMUSAN & ANOR V RUFUS OLAWUNI (2001)
LPELR-6976 (CA) at page 18 paras C-E (supra). While this
principle of law is not in doubt, it is however, only
applicable where a claimant has clearly identified the
dimensions or boundaries of the parcel of land he claims in
his pleadings, and the defendant does not join issues
challenging the dimensions and boundaries as pleaded by
the claimant. It is not applicable where clear dimensions
and boundaries of the land claimed are not pleaded. The
law is that even where the identity and location of the land
in dispute is not contested, the claimant must in his
pleadings and evidence show an identifiable area of land
43
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8) LP
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CA)
to which his claim relates - Iyaji Vs Eyigebe (1987) 3
NWLR (Pt 61) 523 at 529, Ofume Vs Ngbeke (1994) 4
NWLR (pt 341) 746, Ayuya Vs Yonrin (2011) 10 NWLR
(pt 1254) 135, Ogundalu Vs Macjob (2015) 8 NWLR
(Pt 1460) 96. Such proof of identity of land is a condition
precedent sine qua non to the success of the claimant's
claim- Alimi Vs Obawole (1998) 6 NWLR (pt 555) 591
Dada Vs Dosunmu (2006) 18 NWLR (Pt 1010) 134,
Dauda vs Iba (2007) 2 NWLR (Pt 1018) 321, Adu Vs
Gbadamosi (2009) 6 NWLR (Pt 1136) 110, Fayemi Vs
Awe (2009) 15 NWLR (Pt 1164) 315.
Appellants’ counsel referred to Respondent’s Amended
Statement of Claim paragraph 32, wherein Respondent
clearly specified the four boundary neighbors of land in
dispute, within Ategbado farmland,
On the first side by Idowu Olomofe from Aromojo
family in Edemo Street granted to him by Edemo
family
(ii) On the second side by Late Chief John Akinyele
the Asamo of Ado-Ekiti
(iii) On the third side by Late Pa Abudul Owolabi from
Elegbira family in Edemo Street
(iv) On the fourth side by Late Pa Salami Badmus.
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8) LP
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CA)
But that contrary to the boundaries pleaded by the
Respondent, the Appellants pleaded in paragraphs 4 and 4
(m) of the Amended Statement of Defence. In reaction to
paragraphs 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29,
30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44
of the statement of claim which are denied, the Defendants
aver in respect thereof as follows:
Para 4(m)
“The boundaries of the said land in dispute are as
follows;
(i) On the first side by Opara stream
(ii) On the second side by Idowu Olomofe farmland
(iii) On the third side by Bakare Usman farmland
(iv) On the fourth side by Abudul Owolabi.”
The Appellants gave evidence in respect of the above.
Whilst CW1, the Respondent under cross-examination
stated on page 136 of the record of appeal as follows;
“As to the boundaries of the land in dispute known as
Ategbado farmland, it was bounded by Aduloju Camp,
Ogbese river and Federal Polytechnic, Ado-Ekiti, the
Reserve Forest, and lastly the Eribi family.”
45
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8) LP
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CA)
The Appellants’ counsel pointed out clearly that the
Respondent’s evidence on page136, of the record of appeal
is at variance with his averments in his paragraph 32 of his
Statement of Claim. The position of the law places a duty
on the Respondent to prove his case. The evidence of the
Respondent is definitely at variance with pleaded facts. In
the case of Karimu v Lagos State Government (2012) 5
NWLR (pt 1294) 620 at 643 the Court held as follows:
“Evidence at variance with pleaded facts must be
disregarded. See Umegokwe v Okadigbo (1973) 4 SC
113, Okagbue & Ora v Romaine (1982) NSCC 130 at
137; Adenuga v L.T.C (1950) 13 WACA 125 at
126." Also in the case of Auta v Ibe (2003) 13 NWLR
(pt 837 ) 247 at 265-266 H-A where the Supreme Court
held as follows:
“Further to the above, the evidence adduced by the
Appellant and her two witnesses especially PW3 is not
only at variance with her pleadings but also
contradictory in material particular and magnitude
which in my view must raise substantial doubt in the
mind of the trial Court as to the authenticity or
veracity
46
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8) LP
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CA)
of the case of the plaintiff. See Oyeyiola v Adeoti
(1973) 1 NMLR 103.”
The evidence of the Respondent, and his witnesses CW2,
and CW3 have failed to ascertain the boundaries of the land
being claimed by the Respondent with certainty and
exactitude, therefore the lower Court erred in law when it
granted the Claim of the Respondent for declaration of
title. I place reliance on the Supreme Court case of
Babatola v Oba Aladejana (2001) 6 NSCQR (pt 2)
1017 at 1027 - 1028 H -A, 1029 G-H, 1030, B-C where
the Court held as follows ;
“In a land dispute the boundaries of the land in dispute
must be proved with certainty such that a surveyor taking
the record could produce a survey plan showing with
accuracy the land in dispute. In a claim for trespass and
injunction the onus is on the plaintiff to prove the identity
of the land trespassed upon with clarity and certainty. This
is mandatory because where an area of land is uncertain, it
will be difficult and impossible to prove trespass to the land
thereafter grant injunction... it is instructive in a land
dispute that a mere mention of names without more is not
enough for
47
(201
8) LP
ELR-46
312(
CA)
identification of land...one important way now commonly
used by parties in land dispute is to establish the identity of
the land in dispute by filing a detailed and accurate survey
plan of the land showing the various feature on such land
sufficient to point to the clear boundaries thereof...It is trite
law that a party must succeed in identifying the land
trespassed upon before his claim for damages can be
considered. A party claiming damages for trespass has a
duty to satisfy the Court that at the time of the alleged
trespass he was in possession of the particular portion of
the land in respect of which the trespass was committed.”
In this case the Respondent failed to identify the land in
dispute, since the area of location of a piece of land is not
the same as the extent and boundaries of the same piece of
land.
The Respondent failed to prove with exactitude the
boundaries of the land he claimed, the failure is fatal to his
claim.
From all l have elucidated in this issue, l resolve the issue
in favour of the Appellants.
Issue 3: Reliance on Orupe and Igbomoshi farmlands
48
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8) LP
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CA)
On lssue 3, Appellants’ counsel referred to page 12 of the
record of appeal where the Respondent in his evidence
stated as follows;
“It should be noted that the present place where second
defendant built his house, was given to him by Edemo
family, and his father never farmed on the land, likewise
that the second defendant’s father never farmed on Edemo
family land at Orupe and Igbomoshi with layout where
portion of same was granted to him for building purpose.”
Mr. Ogunmoroti contended that, it is very difficult to make
out what the Respondent is saying in the evidence above,
because the concluding part of the evidence seems to say
that, even at Orupe and Igbomoshi a portion of the land
was granted to the 2nd Appellant’s father for building
purpose.
And that the learned trial judgment reached his findings
based on the above evidence on page 347, of the record of
appeal as follows;
“It was the evidence of the CW1, and the CW2, that
the present place where the 2nd Defendant built his
house was given to him by the Edemo family, and his
father never farmed on the land. It was also their
evidence
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8) LP
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312(
CA)
that the 2nd Defendant’s father, never farmed on the
Edemo family land at Orupe and Igbomoshi, where
portion of same was granted to him for building
purpose. The 2nd Defendant and his witnesses had no
answer to the above assertions and they remained
silent on them both in their pleadings and evidence
before the Court. To worsen matters, neither the
CW1, nor CW3 was cross-examined on those two
weighty allegations which negatively ate deep into the
Defendant’s case like a malignant ulcer.”
Appellants’ counsel pointed out the fact that, Orupe and
Igbomoshi are not the subject matter in dispute in this
case, and there is no relief in respect of Orupe and
Igbomoshi.
Orupe and Igbomoshi are not the land in dispute, and so
Orupe and Igbomoshi have no role to play as far as the case
of the Respondent is concerned.
Orupe and Igbomoshi are extraneous, to this case because
they are not in dispute.
The evidence relied on or upon by the learned trial judge,
in arriving at his judgment is extraneous, speculative,
immaterial, unsubstantiated, sentimental, tendentious and
irrelevant, and Courts are not allowed to speculate nor are
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8) LP
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312(
CA)
they allowed to rely on sentiments, irrelevant or extraneous
considerations in arriving at their judgments. SeeIdirisu V.
Obafemi (2004) 11 NWLR (Pt 884) p 396 at 409 D – E
where the Court held as follows;
“Appellant could have put the documents in his wife’s name
to conceal the true ownership of the property as a civil
servant, with a view of throwing off the cover, when he
retired from the service of the Federal Government. He has
my sympathy. However, sympathy or even sentiments is
said not to override the clear provisions of the law or rules”
it is in Ezeugo V. Ohanyere (1978) 67 SC 171 at 184
Obaseki JSC admonished thus;
Sentiment command no place in judicial deliberation for if
it did, our task would be definitely more different and less
beneficial to the society.”
See also F.M.F Ltd V. Ekpo (2004) 2 NWLR (Pt 856) p
100 at 120, B – E.
See also Orisakwe V. State (2004) 12 NWLR (Pt 887)
pg 258 at 286, A – E.
See also Yusuf V. Adegoke (2007) 11 NWLR (Pt 1045)
pg 332 at 363, G – H where the Supreme Court held as
follows;
“It seems to me that by the approach, they tried to
take
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8) LP
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312(
CA)
a cover under the maxim; res inter alios acta alteri
nocere non debet; which literally translated means
that a man ought not to be prejudiced by what has
taken place between others. The maxim operates to
exclude all the acts, declarations or conduct of others
as evidence to bind a party either directly or by
inferences.”
Appellants counsel urged this Court to allow the appeal.
It was rightly pointed out by Appellants’ counsel that Orupe
and Igbomoshi are not the subject matter in dispute in this
case therefore there can be no relief in respect of Orupe
and Igbomoshi. This issue is resolved in Favour of the
Appellants.
Issue 4 = Prove of title to land in dispute by the
Respondent
Appellants’ counsel whilst arguing issue 4 referred to
the claim of the respondent against the Appellant which
states as follows;
“(i) A declaration that the claimant is entitled to a
certificate of customary right of occupancy on the
land situate, lying and being at Ategbado farmland,
Oloyunkun, off Ago Aduloju, Ikare Road, Ado-Ekiti.
(ii) N2million general damages for trespass
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8) LP
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CA)
committed and still being committed by the
Defendant their agents, privies, and or servants on
the Claimant’s family aforesaid parcel of land.
(iii) An order of perpetual injunction restraining the
Defendants, their agents, servants and/or privies from
further acts of trespass on the Claimant’s family
land.”
The Respondent has sued for declaration, and right of
occupancy as well as trespass at the same time and
damages and injunction. Above reliefs place the title of the
land in dispute in issue. The declaration being sought by
the Respondent presupposes that, he is not in possession of
that land; whereas it is only a person in possession that can
sue for trespass, damages and injunction. Learned counsel
submitted that, the reliefs of the Respondent are divergent,
upside down, inconsistent, contradictory, rioting and
fighting, whereas the Honourable Court has no duty to
perform a surgical operation on the reliefs of the
Respondent. Since Respondent’s reliefs are all
somersaulting, they must all be refused, and counsel urged
this Court to do so. See Ezekwesili V. Agbapuonwu
(2003) 9 NWLR (Pt 825) pg
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8) LP
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CA)
337 at 371 – 372, C – H where the Court held as follows;
“It is settled law that a claim for recovery of possession
cannot be properly joined in the same action with the claim
for damages for trespass as both claim appear self-
contradictory. This is best explained by the dictum of Coker
JSC in Aromire & Ors V. Awoyemi (1972) 1 ANLR (Pt.
1) 101 at page 108 wherein the learned justice of the
Supreme Court delivering the judgment of the Court,
observed;
“We had already set out the claims of the plaintiff as on his
writ-damage for trespass, recovery of possession and a
perpetual injunction. It is pertinent at this juncture to
observe that the claims as appearing on the summons are
self-contradictory. A claim in trespass pre-supposes that
the plaintiff is in possession of the land at the time of the
trespass. A trespasser cannot claim to be in possession, by
the mere act of entry, and clearly a plaintiff in lawful
possession, despite a purported eviction by a trespasser.
On the other hand, a claim for recovery of possession
postulates that the plaintiff is not in possession,at the time
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of the action, that he was once in possession, but is at that
time seeking to be restored to possession of the land.
Hence, in the present case, the claims for trespass and for
recovery of possession should not have been put together
as one postulates that the plaintiff was not in possession
whilst the other suggests that he was.”
See alsoOladipo V. Ayantunji (2001) 11 NWLR (Pt.
831) pg 418 at 431 H.
It was reiterated by Appellant’s counsel, that the
Respondent does not know the original owner of the land in
dispute, because what he relied on is traditional evidence
to prove his title.
Learned counsel referred to the Respondent’s paragraphs
8, 9, 10, 13 and 14 of his amended statement of claim
which state as follows;
Para 8
“Claimant states that land in dispute is situate, lying and
being at Ategbado farmland Oloyunkun, off Ago Aduloju,
Ikare Road Ado-Ekiti.”
Para 9
“The entire land at Ategbado farmland belongs to the
Edemo family, from the time immemorial and has been
exercising acts of ownership on same”
Para 10
“That the land in dispute is owned by the Claimant”
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Para 13
“That it was Williams Aina Aduloju who first farmed on the
land in dispute at Oloyunkun in Ategbado farmland”
Para 14
“That the land in dispute and the entire land at
Ategbadeo farmland has been under active cultivation
by Williams Aina Aduloju even before any member of
Edemo family ever came to the land in dispute for
cultivation.”
It was noted by Appellants’ counsel that, the Respondent
did not mention the name of the original owner of the land
in dispute, and how it was founded, and the mode thereof
which is fatal to his claim. See Yusuf V. Adegoke (2007)
11 NWLR (Pt 1045) p 332 at 358 – 359, B – A.
Oyedeji V. Oyeyemi (2008) 6 NWLR (Pt 1084) p 484 at
500, D – F where the Court held as follows;
“The law also is that there is no need, for the defendant to
respond to a claim, based on defective evidence when the
defendant had no counter-claim. It is also the law, that the
plaintiff must plead and prove the names and histories of
how they came to own the land in dispute, whether it was
by grant or by settlement or by conquest... A person who
traces
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the root of his title to a person, or to a family must establish
how that person or family also came to have title in the
land vested in him or it”.
See alsoNwokorobia V. Nwogu (2009) 10 NWLR (Pt
1150) p 553 – 573 H, 575 – 576 G – A where the
Supreme Court held as follows;
“The law is well settled that where evidence of tradition is
relied on in proof to declaration of title to land, the plaintiff
to succeed must plead and establish such facts as who
founded the land how he founded the land and the
particulars of the intervening owners through whom he
claims... The pertinent question here is, has the appellant
pleaded traditional history and has his evidence so far
reproduced above proved traditional history in consonance
with the principle of law laid down in theNkano V. Obiano
case supra? As far as I can see, paragraph (4) of the
statement of claim supra is bereft of who founded the land
and how it was founded.
The fact that the said paragraph (4) stated that it was
originally owned by the family of Nwoko has not specifically
stated that Nwoko founded the land, part of which is in
dispute because it generalized that it was owned by the
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family of Nwoko when it is usually one person that founds a
land either by settlement, conquest etc. In the instant case,
it is not even known how the said Nwoko owned the land
(assuming the pleading established that he found it). Then
came the pieces of evidence reproduced above which are
devoid of the facts needed as evidence of tradition proof of
traditional history.”
See also Ukaegbu V. Nwololo (2009) 3 NWLR (Pt 1127)
p 194 at 220 – 221 C – F where the Supreme Court held
as follows;
“If therefore, Egbereuri had a surname Agbugbuo, it is not
averred how their said land in dispute, came to be
originally owned by Egbereuri, was it by inheritance from
his father Agbugbuo or if not, was it by fight, conquest,
sale, grant deforestation etc. or how? I or one may ask. The
said land could not have come from the blues to Egbereuri.
I say this because, it is now settled that where title is
derived by either grant, sale conquest or inheritance etc
the pleading should aver facts relating to the founding of
the land in dispute, the person or persons who founded the
land and exercised original acts of possession... I note that
under
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cross-examination at page 81 of the records, PW1 stated
the land belongs to him and that it descended on through
Egbereuri. I repeat there is no evidence on how the land
came to be owned originally by Egbereuri or how it was
founded by him.
In the case of Chief S.A. Lawal & Ors V. Alhaji
Olufowobi & Ors (1996) 12 SCNJ 376 at 384 (1996) 10
NWLR (Pt 477) 177 Kutigi JSC (as he then was, now CJN)
stated that the plaintiffs were bound to have pleaded who
founded the land, how it was founded and the particulars of
the intervening owners through whom they claim... It
seems to me that this crucial fact, did not occur to the
learned counsel for the appellants and the learned trial
judge or the Court below. If it had, then it means that the
respondent, abandoned his said pleading or that his
evidence was/is not supported by the pleading. Either way
since it is a long established principle of law, that a party is
bound by his pleadings, the respondent having failed to
plead and/or give evidence of the root of title of Egbereuri
and/or Agbugbuo that should have been the end of his
case.”
Appellants’ counsel reiterated the fact that, the
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Respondent merely stated in his pleadings and evidence,
that the land belongs to Edemo family from time
immemorial, which is fatal to his case from the above
decided cases.
Appellants’ counsel contended that the Respondent is not
in possession by virtue of his own claim for declaration,
trespass injunction and damages at the same time. The
implication of this is that the Respondent cannot rely on
acts of long possession, or in the least possession for that
matter.
And the Respondent having failed to prove his case, he is
not entitled to judgment, therefore learned counsel urged
this Court to allow the appeal and dismiss the case of the
Respondent.
And that, the Respondent has also failed to establish the
boundaries of the land in dispute with certainty and
exactitude. Rather than give the boundaries of the land in
dispute, the Respondent who is CW1, his witness CW2,
merely catalogued the boundaries of a different piece of
land not in dispute, CW3 does not even know the
boundaries since he also followed the wrong path of giving
fake and false boundaries laid down by the Respondent
himself.
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The Respondent in his evidence on page 12 of the record of
appeal gave the boundaries of the land in dispute as
follows;
(i) On the first side by Idowu Olomofe from Aromojo
family in Edemo Street granted to him by Edemo
family
(ii) On the second side by Late Chief John Akinyele
the Asamo of Ado-Ekiti.
(iii) On the third side by Late Pa Abudul Owolabi from
Elegbira family in Edemo Street
(iv) On the fourth side by Late Pa Salami Badmus.”
Whereas under cross-examination on page 136 of the
record of appeal he said as follows;
“It should be noted that the present place where
second defendant built his house was given to him by
Edemo family and his father never farmed on the land
likewise that the second defendant’s father never
farmed on Edemo family land at Orupe and Igbomoshi
with layout where portion of same was granted to him
for building purpose.”
Above is fatal to the case of Respondent.
See (1) Ukaegbu V. Nwololo (Supra) at 233 – 234 H - G
(2) Bassey V. Ekanem (Supra) at 373 A – B
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(3) Babatola V Oba Aladejana (Supra)
Learned counsel urged this Court to allow the appeal.
Arguing further learned counsel pointed out that, the
pleadings and evidence of the Respondent and his
witnesses are inconsistent.
CW1, the Respondent in his written statement on oath on
pages 9, 10 and 11 of the record of appeal stated as
follows;
Para 9
“Among other members of Claimant family who had
farmed on the land in dispute in the past are Late
Joseph Akinola, Jeje Akinola Michael Olaogenikan, Pa
Sanmi Alabi, Samuel Aduloju, Pa Apanisile and
Bakare Ogunro of which some of these people planted
cocoa, kolanuts, oranges etc on the land in dispute
but same have since dried up.”
Para 10
“The second defendant’s father was allowed to farm
and cultivate on the land at Ategbado farmland but
specifically on the land in dispute and there was no
time that gift as of right was conceded to second
defendant’s father.”
Para 11
“It was Audu Badmus Gadamosi the father of the
second Defendant that was given land by Edemo
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family for cultivation and not an outright gift as he
claimed. Alhaji Musa Olorunfemi, Sunday Olusomoka
(a.k.a Alausa, Alfa Usman Bakare and Kareem
Adeyanju were those people present when the cocoa
plantation of the second defendant’s father was
partitioned for all the surviving children but
definitely not the land upon which the cocoa was
planted and as a matter of fact the area of the land in
dispute does not form part of area of land granted to
the second defendant’s father for cultivation alone by
Edemo family.”
CW1, again in his additional written statement on oath
stated on pages 91, and 92 of the record of appeal as
follows;
“That it was the Cocoa plantation and other economic
crops on the land in dispute that was partitioned and
shared after the death of the second defendant’s
father but not the land upon which cocoa plantation
and/or crops were planted.”
“That the area of land which Williams Aina Aduloju
allocated to the Late Chief John Akinyele the Asamo
of Ado-Ekiti was part of the place which second
Defendant wrongly sold to the first defendant without
prior consent and knowledge of Edemo family.”
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This above evidence of CW1, is the same as the evidence of
CW2, and CW3. See pages 15, 16, 17, 27 and 28 of the
record of appeal.
Appellants’ counsel submitted that, from the foregoing, the
Respondent is saying that;
(a) Several people farmed on the land in dispute who
planted cocoa but the cocoa has dried up.
(b) The 2nd Appellant’s father was allowed to farm and
cultivate on the land in dispute.
(c) The cocoa plantation of the 2nd Appellant’s father was
partitioned among his children upon his death.
(d) The area in dispute does not form part of the area of
land granted to the second Appellant’s father for
cultivation.
(e) The cocoa plantation and other economic crops on land
in dispute were partitioned and shared.
(f) Part of the land in dispute allocated to Late Chief John
Akinyele the Asamo of Ado-Ekiti was sold to the 1st
Appellant by the 2nd Appellant.
Learned counsel posed the question (1) if several people
farmed on the land in dispute including the father of the
2nd
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Appellant, who planted cocoa and whose cocoa had dried
up, where did the cocoa partitioned to the 2nd Appellant
emanate from?
(2) lf the father of 2nd Appellant was allowed to farm on the
land in dispute and his cocoa was shared among his
children, how come that the cocoa plantation which the
Respondent says is part of the land in dispute is no longer
part of the land in dispute?
(3) lf the cocoa plantation is no longer part of the land in
dispute, why did the Respondent seek a declarative relief in
respect of the cocoa plantation that is not in dispute and
same was awarded to him?
(4) why did the Respondent also allege trespass and ask for
damages and injunction when he was not in possession?
(5) lf part of the land in dispute was allocated to Late Chief
John Akinyele the Asamo of Ado-Ekiti, definitely ownership
in respect of that portion already allocated to Chief John
Akinyele no longer resides in the Respondent or anybody at
all, so why did the Respondent claim what does not belong
to him and same was awarded to him?
From the foregoing, it is not in doubt that the case of the
Respondent is riddled with the virus of inconsistency with
no remedy or mercy but terminal death.
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Learned counsel urged the Honourable Court to allow the
appeal. See Karima V. Lagos State Government
(Supra).
Auta V. Ibe (2003) 13 NWLR (Pt 837) p 247 at 265 –
266 H – A.
See also Ojo Adebayo V. Mrs. F. Ighodalo (1996) 5
SCNJ 23.
It was reiterated by Appellants’ counsel that, the
Respondent must rely on the strength of his case and not
on the weakness of the Appellant’s case if any. See
Ademola V. Seven-Up Bottling Co Plc (2004) 8 NWLR
(Pt 874) p 134 at 147 D – F.
Dike V. Okoloedo (1999) 7 SC (Pt 111) pg 35 at 42
para 5 – 10 and 30.
Reference was made by learned counsel to the fact that,
the learned trial judge already held that the 2nd Appellant
is a member of Edemo family, and that was why his
Lordship did not restrain the 2nd Appellant from the land,
but curiously the sum of (N200,000.00) Two Hundred
Thousand Naira was awarded against the Appellants for
damages for trespass committed and still being committed.
Appellants’ counsel contended that, if the 2nd Appellant is
a member of the Edemo family, definitely he cannot be a
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trespasser on the Edemo family land, and no damages can
be awarded against him for trespass. The award of the sum
of N200,000.00 (Two Hundred Thousand Naira) against the
2nd Appellant is therefore incongruous, self conflicting and
contradictory. In any case, the Respondent has failed to
prove his case which is liable to be dismissed. See
Ademola V. Seven-Up Bottling Co Plc (supra) Dike V
Okoloedo (supra).
The 2nd Appellant was able to prove a better title to the
land in dispute, than the Respondent even though there is
no burden placed on him having not counter claimed in the
suit. See Oyedeji V. Oyeyemi (supra).
The Appellants pleaded in their paragraph 3 of the
Amended Statement of Defence filed on 11th December
2013, at pages 196, to 197, of the record of appeal, that the
2nd Appellant is the owner of the land, and that his
ancestor was the first to settle on the land. The 2nd
Appellant as DW5, gave evidence in respect of the above,
via his paragraph 2 of his written deposition on oath. See
pages 203 – 207 of the record of appeal.
He said Dauda Omotoye was the original owner of the land,
and the first person to farm thereon. The land was
eventually
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partitioned to the 2nd Appellant, and he became the
exclusive owner. This was not challenged under cross-
examination.
DW3, Usman Bakare confirmed the partitioning, the 2nd
Appellant is in active possession of the land which is a
presumption of the ownership. See Section 35 of the
Evidence Act, 2011.
What is more, the Respondent is not in possession of the
land, by his reliefs that are quarreling and divergent which
on one hand prays for declaration to be in possession, and
on the other hand prays for trespass, and injunction for
being in possession. This is fatal to Respondent’s case.
Appellants’ counsel urged the Honourable Court to allow
the appeal, set aside the judgment of the lower Court and
dismiss the claim of the Respondent.
The Respondent has no locus standi to sue in respect of this
matter. The Respondent has failed to identify the
boundaries of the land in dispute. The learned trial judge
has allowed irrelevant considerations to affect his judgment
which is fatal to the Respondent’s case. The Respondent
has refused and failed to discharge the burden placed on
him to prove his case.
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The Respondent cannot cash in on the weakness of the
Appellants’ case, if any since he must succeed on the
strength of his case.
The Respondent’s case is weak, tendentious and without
strength, same having been plagued and affected by the
chronic virus of inconsistency.
Finally Appellants urged the Honourable Court, to allow the
appeal, set aside the judgment of the lower Court and
dismiss the case of the Respondent with substantial costs.
The Respondent’s learned counsel in his issue 3 which is
pari material with Appellants’ issue 4 adopted his
arguments and submissions in respect of issues 1 and 2
above. Respondent’s counsel contended that the claimant is
only expected to prove his case on the preponderance of
evidence. That the burden of proof in a case is upon the
party who substantially asserted in the affirmative an issue
and who would fail if no evidence was adduced. It was
stated by learned counsel that the grouse of the
Respondent is that the 2nd Appellant without the consent
and authority of the principal members of the family sold
the land in dispute to the 1st Appellant - a non member of
the Respondent’s family.
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That the dispute was taken before the Ewi of Ado - Ekiti
whereat the 2nd Appellant was ordered to refund the
purchase price to the 1st Appellant, and the latter should
vacate the land in dispute, being a joint family property. It
was stated further by Respondent’s counsel that the
Appellants did not specifically deny paragraphs 36 -39 of
the Amended Statement of Claim in their Amended
Statement of Defence. Learned counsel submitted that
Respondent gave unchallenged evidence that the family
gave parcels of land to the Appellant and his father for
farming and building purposes. Respondent’s counsel
contended that the onus is on the 2nd Appellant to prove
how he became the owner of the land in dispute which he
failed to do. Learned counsel submitted that allotment of
family land does not change the status of family land. That
it is not in dispute that the land was purportedly sold by
2nd Appellant to the 1st Appellant without the consent of
the Respondent’s family head and principal members. In
that it is trite that a sale of family land by any member not
on behalf of the family is void abnitio.
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In conclusion Respondent’s counsel stated that Respondent
proved his case against the Appellants therefore he is
entitled to judgment.
The fourth issue centers on prove of title to land in dispute.
The Respondent claimed for declaration of title over the
land in dispute.
What a party seeking for a declaration of title to land and
relies on traditional history as proof of his root of title must
plead was defined in the case of CHUKWUEMEKA
ANYAFULU & ORS V. MADUEGBUNA MEKA & ORS
(2014) LPELR-22336(SC) per Okoro JSC as follows;
"It is trite that a party seeking for a declaration of title to
land, who relies on traditional history as proof of his root of
title, must plead same sufficiently. That is to say, he must
demonstrate in his pleading the original founder of the
land, how he founded the land, the particulars of the
intervening owners through whom he claims. Where a
party has not given sufficient information in his pleadings
as regards the origin or ownership of the land and the line
of succession to himself, he has just laid foundation for the
failure of his claim. See HYACINTH ANYANWU V.
ROBERT ACHILIKE MBARA & ANOR (1992) 5 SCNJ.
90,
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IDUNDUN V. OKUMAGBA (1976) 9 - 10 SC 224,
ATANDA V. AJANI (1989) 3 NWLR (Pt. III) 511."
From the pleadings of the Respondent, in his Amended
Statement of Claim in paragraphs 1, 2, 3, 4, 5,9, it is clear
that he filed the suit at the lower Court as a traditional
chief, and head of the Edemo family of Ado - Ekiti.
Respondent in the length and breadth of his pleadings, did
not demonstrate the original founder of the land, how he
founded the land, the particulars of intervening owners.
Respondent in his paragraph 10 stated that he is the owner
of the land in dispute. This his claim contradicts his claim
in paragraphs 1, 2, 3, 4, 5, and 9. The claim of the
Respondent based on his own pleadings cannot succeed.
See the cases of Oyedeji v Oyeyemi (2008) 6NWLR (Pt
1084) 484 at 500: Nwokorobia v Nwogu (2009) 10
NWLR (Pt 1150) 553 at 573. The Respondents claim
must fail because he relied on traditional history in proof of
his declaration of title to land but did not establish such
facts as who founded the land, how he founded the land
and particulars of the intervening owners through whom he
claims. See the Supreme Court case of Ukaegbu v
Nwololo (2009) 3 NWLR (Pt.1127) page 194
at 220-221.
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In this instant appeal, since it is a long established
principle of law that a party is bound by his pleadings, the
Respondent having failed to plead and give evidence of the
root of title of Edemo family land that should have been the
end of his case, Respondent having failed to prove his case,
he is not entitled to judgment. Consequently the appeal is
meritorious and l allow the appeal.
The case of the Respondent in Suit No: HAD/89/2012 is
hereby dismissed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have had the
advantage of reading in draft the judgment just delivered
by my learned brother F. O Akinbami, JCA.
I am in complete agreement with the reasoning and
conclusion that the appeal is meritorious and should be
allowed.
The case of the Respondent in suit No: HAD/89/2012 is
hereby dismissed.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU,
J.C.A.: I had the privilege and opportunity to preview the
lead judgment delivered by my learned brother F.O
AKINBAMI JCA and I agree with the reasoning and
conclusion reached therein.
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In a case for declaration of title to land such as in the
instant appeal, the onus was on the Respondent to establish
his claim by preponderance of evidence, credible and
cogent which he had failed to do. As the claimant, he had to
satisfy the Court upon his pleadings and evidence that he
was entitled to the declaration he sought. See the cases of
KALA v. POTISKUM 1998 3 NWLR PT. 540. 1, ELIAS
v. DISU 1962 1 ALL NLR 214, ADEWUYI v. ODUKWE
2005 ALL FWLR PT. 278 1100, TRAGUMMA v.
RSHPDA 2003 FWLR PT. 169 and CLIFFORD OSUJI v.
NKEMJIKA EKEOCHA 2009 LPELR-2816 5C.
The position of the law is clear and settled as regards the
issue of identity of land in a matter where ownership of the
land is in issue as herein. The identity of the land must be
clearly established with certainty which the respondent
herein failed to do, and therefore the orders of the Court
below in his favour in that regard, cannot be allowed to
stand.
I therefore, in consequence, also allow the appeal and
abide by the other made therein.
I make no order as to costs.
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Appearances:
Taiwo Martins Ogunmoroti, Esq. with him,Temitope Kolawole, Esq., Ayantunde Adeleke,Esq., Oluwaseun Oyebanji, Esq. and OluwasayoFagbohun, Esq. For Appellant(s)
Adedayo Adewumi, Esq. with him, L. A. Fasanmi,Esq. and Olawale Ajayi, Esq. For Respondent(s)
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