(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

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1. EVIDENCE - DOCUMENTARY EVIDENCE: What is required of a party subpoened to produce a document in Court"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."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"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."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"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."Per AKINBAMI, J.C.A. (Pp.42-43, Paras. B-A) - read in context

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5. LAND LAW - DECLARATION OF TITLE TO LAND: Duty of a claimant/plaintiff in an action for declaration of title toland"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."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"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."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"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."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"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."Per AKINBAMI, J.C.A. (Pp. 24-26, Paras. D-E) - read in context

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9. LAND LAW - IDENTITY OF LAND: Duty of a Claimant to prove identity of land; Effect of failure to do same"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."Per AKINBAMI, J.C.A.(Pp. 43-48, Paras. B-F) - read in context

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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"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."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"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."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"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."Per AKINBAMI, J.C.A. (Pp. 15-16,Paras. E-F) - read in context(2

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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


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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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

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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;



family




Elegbira family in Edemo Street


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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“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;



family






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

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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

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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

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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

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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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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.

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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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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.

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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.

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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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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

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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





(iv) On the fourth side by Late Pa Salami Badmus.

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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.”

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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

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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

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8) LP

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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

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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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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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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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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


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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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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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;



family


the Asamo of Ado-Ekiti.




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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