3PLR – YEKINNI ADENIJI V. JOHN OYEBOLA OLUWOLE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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YEKINNI ADENIJI
V.
JOHN OYEBOLA OLUWOLE
IN THE COURT OF APPEAL
[IBADAN DIVISION]
CA/I/154/97
OTHER CITATIONS
[2002] 24 WRN 171
BEFORE THEIR LORDSHIPS:
DALHATU ADAMU, JCA (Presided)
FRANCIS FEDODE TABAI, JCA (Delivered the leading judgment)
OLUFUNLOLA OYELOLA ADEKEYE, JCA
REPRESENTATION
A.O. Bada, Esq. counsel for appellants.
Chief O. A. Ogundeji, counsel for respondent.
MAIN ISSUES
CUSTOMARY LAW – Customary land law – customary tenancy- recovery of possession of land thereunder – whether the statutory notice to quit applicable in residential premises would be required.
REAL ESTATE/LAND LAW – Customary Tenancy – recovery of possession of land thereunder – whether the statutory notice to quit applicable in residential premises would be required.
REAL ESTATE/LAND LAW – Long possession of land under a tenancy agreement – whether can compete with or oust a better title.
REAL ESTATE/LAND LAW – LAND USE ACT:– Sections 34(2)(3)(6) and 36(2)(3)(4) of the Land Use Act 1978 – whether preserves the right of both the customary landlord and customary tenant with respect to land held by them before commencement of the Act.
PRACTICE AND PROCEDURE – APPEAL – Brief writing – issues for determination – need to be specifically related to grounds of appeal – failure of – whether would warrant dismissal of appeal.
PRACTICE AND PROCEDURE – Appeal –brief writing – issues for determination – need to be specifically related to grounds of appeal – failure of – whether would warrant dismissal of appeal.
PRACTICE AND PROCEDURE – Limitation of action – how pleaded.
PRACTICE AND PROCEDURE – Limitation of action – period of – how determined – Supreme Court decision in Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 applied.
INTERPRETATION OF STATUTES – Section 6(2) of Limitation Law of Oyo State 1978 – when applicable in determining whether a cause of action is statute barred.
MAIN JUDGMENT
FRANCIS FEDODE TABAI, JCA (Delivered the following judgment):
This appeal is against the judgment of Honourable Justice O. O. Adesina at the Ibadan Judicial Division of the High Court of Oyo State on the 22/8/95. The claim which is contained at page 32 of the amended statement of claim was for-
“(a) Possession of that piece or parcel of land situate lying and being at Ojo-Ibadan Great Yemetu Ibadan more particularly described and delineated on plan No. SOF/OY-004/88 drawn and signed by N.O. Fajobi (licensed) surveyor on 11th day of April 1988 and thereon edged “red”.
(b) Mesne profit at the rate of N50.00 per month from January, 1987 until possession is given up.”
Four witnesses including the plaintiff testified for the plaintiff’s case while four witnesses including the defendants/appellants gave evidence for the defence. At the close of evidence counsel for the parties addressed the court. In the judgment the reliefs as claimed were granted with N3,500.00 costs in favour of the plaintiff/respondent.
The notice of appeal dated 18/9/95 contained four grounds of appeal which without their particulars were-
“1. That the learned trial Judge erred in law by failing to make a finding on whether the action was statute barred.
- The learned trial Judge erred in law by giving possession of the land in dispute despite the provisions of the Land Use Act 1978.
- The learned trial Judge erred in law by not making a finding on exhibits ‘E’ and ‘F’ tendered by the 2nd defendant.
- The judgment is against the weight of evidence.”
And with the leave of this court a 5th ground of appeal was filed and it says:
- The High Court lacks jurisdiction to adjudicate on the matter having regard to the provisions of the Recovery of Premises Law of Oyo State.”
The parties through their counsel filed and exchanged their briefs of arguments. The appellant’s brief of argument filed on the 27/4/99 was prepared by A. O. Bada. He also filed appellants’ reply brief on the 8/3/2001. On the other hand the respondent’s brief of argument filed on the 28/5/99 was prepared by Chief O.A.Ogundeji. At the hearing of the appeal on the 9/5/2001 both counsel adopted the arguments contained in their briefs. From the grounds of appeal filed learned counsel for the appellants raised the following issues for the determination;
“1. Whether the plaintiff proved his case in view of the contradictions in the evidence of the plaintiff and his witnesses.
- Whether the case is caught by the Statute of Limitation of Oyo State 1978
- Whether the action is competent in view of the provisions of the Land Use Act.
- Whether the court is competent to adjudicate over the matter when there is no compliance with the conditions precedent.”
Barring the objection raised to the competence of the issues as formulated by the appellants, learned counsel for the respondent otherwise adopted the said issues and founded his arguments on them. The consequence is that I shall also adopt and consider this appeal on the issues raised by the appellants in their brief.
With respect to the first issue learned counsel for the appellants referred first to the evidence of the PW4 and contended that he was not a descendant of Delesolu. It was his contention also that the plaintiff ought to have proved how Delesolu came to own the land and that he submission was fatal to the plaintiff’s case as he failed to prove his root of title. On contradictions he referred to paragraphs 14 and 15 of the plaintiff’s reply to the statement of defence and the evidence at page 49 lines 21-25 and page 50 lines 18-22 and contended that the evidence went to no issue. He referred to paragraphs 16 and 18 of the amended statement of claim and the evidence about Abodunrin collecting rents from 1st defendant and his death on the 11/10/69 and submitted that the evidence was false under the deed Abodunrin could not have been collecting rents from the living. He referred to exhibits C-C42 which he contended established the length of period during which the 2nd defendant collected rent from the 1st defendant.
On the 2nd issue it was submitted that the cause of action in this case arose either in 1937 when the land was released to Abodunrin Alabi or in 1955 when it was leased to the 1st defendant for mechanic workshop and submitted that since this action was instituted in 1988 it was statute barred under section 6(2) of the Limitation Law of Oyo state 1978. In support of his submission he relied on Dr. Tommy Okunola Aina v. M. A. Jinadu AND Anor. (1992) 4 NWLR (Pt. 233) 91 at 111-112.
As respects the 3rd issue it was submitted that since the coming into effect of the Land Use Act 1978 all land in the state became vested in the government of the state and that nobody can ask for possession as claimed in this case.
On the 4th issue learned counsel for the appellants referred to paragraphs 15 and 16 of the amended statement of claim and contended that the relationship of landlord and tenant exists between the plaintiff and 1st defendant. It was his submission that in such a situation the action should be preceded by either one month notice or six months’ notice to quit at the expiration of which there should be another notice of the landlord’s intention to recover possession. The notices prescribed were conditions precedent to the competence of the action learned counsel argued. It was contended therefore that the jurisdiction of the lower court was not invoked to entertain the action. He relied on Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17 and Ben Ihenacho AND Anor. v. Ume Uzochukwu AND Anor. (1997) 1 SCNJ 117.
The following is the substance of the arguments of Chief O. A. Ogundeji in the respondent’s brief of argument: He referred first to the issues which were not related to the grounds of appeal and submitted that the grounds of appeal must be taken to have been abandoned and urged the appeal to be dismissed on that ground. For this submission he relied on Ayinla v. Adigun (1986) 3 NWLR (Pt. 30) 511; Chukwuogor v. Obuora (1987) 3 NWLR (Pt. 61) 454; Jeje v. Kadiri (1987) 4 NWLR (Pt. 6) 460; Nkado v. Obiano (1997) 5 NWLR (Pr. 503) 31; (1997) 5 SCNJ 33 and Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; (1998) 1 SCNJ 143.
On the 1st issue it was contended that since the appellant pleaded that he was not related to the respondent any evidence to the contrary that they were related should be rejected and relied on Ige v. Aroju (1994) 4 NWLR (Pt. 340) 535; (1994) 4 SCNJ 288; Magnusson v. Koiki (1991) 4 NWLR (Pt. 183) 129; (1991) SCNJ 114 and Amobi v. Amobi (1996) 8 NWLR (Pt. 469) 638; (1996) 9/10 SCNJ 207.
According to him the substance of the evidence of the PW4 was that he was a descendant of Ibajinfin who along with his brother Delesolu founded the Delesolu family and contended that exhibit B supported that claim. He contended that both parties pleaded or admitted (i) that Delesolu was the original owner of the land and (ii) that Oluwole was the eventual owner and submitted that these facts needed no further proof. He relied on Oil Field Supply Centre v. Johnson (1987) 2 NWLR (Pt. 58) 625; Okesuji v. Lawal (1986) 2 NWLR (Pt. 22) 417 and Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167; (1995) 2 SCNJ 90. He said there were no material contradictions in the evidence of the plaintiff. He submitted that there was proper appraisal of the evidence by the trial court which justified its conclusion.
With respect to the 2nd issue learned counsel referred to paragraphs 24, 25, 26, 27 and 28 of the amended statement of claim and contended that as averred therein the cause of action arose in 1987 when the defendants claimed title over the land in dispute and not when the land was released to Abodunrin Alabi in 1937. He referred to Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 and Elias v. Arinrimisi (1987) 2 NWLR (Pt. 57) 487 as to the meaning of when cause of action accrues for the purpose of the law of limitation. He categorized the present action as one to recover trust property following a breach to which, he argued limitation does not apply. For this submission he relied on Adekeye v. Akin Olugbade (1987) 3 NWLR (Pt. 60) 214; (1987) 6 SCNJ 127.
On the 3rd issue he referred to section 34(2) of the Land Use Act 1978 which he submitted entitled any person in whom title to a land was vested immediately before the commencement of the law to be deemed a holder of a statutory right of occupancy. He contended therefore that the plaintiff was entitled to the possession of the land in dispute immediately before the commencement of the Land Use Act in 1978 and thereafter. He submitted therefore that the plaintiff had been in dejure possession of the land. He referred to Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414; (1993) 1 SCNJ 77 and submitted that possession or right to it which derived from title supercedes mere physical possession. He also relied on Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637; (1993) 9 SCNJ 185. He further referred to Udeze v. Chidebe (1990) 1 SCNJ 104.
As regards the 4th issue learned counsel for the respondent submitted that the court is bound to adjudicate only on the issues joined by the parties. In this case, he argued, the appellant fought the case as owner of the land and not as a tenant of the respondent. He submitted therefore that issuance of notice to quit and of landlord’s intention to recover possession does not apply in this case. He relied on Akinfolarin v. Akinola (1994) 3 NWLR (Pt. 335) 659 (1994) 4 SCNJ 30 and Okoya v. Santili (1994) 4 NWLR (Pt. 338) 256; (1994) SCNJ 333. He urged that the appeal be dismissed.
In reply learned counsel for the appellants A. O. Bada submitted that the issues on which arguments were canvassed were tied to grounds of appeal and contended that the objection was misconceived. With respect to the 1st issue his arguments were in substance a repeat of arguments in the appellants’ brief. On issue two it was submitted that the arguments about breach of trust was clearly a departure from the case put up at the lower court, and that the issue never arose at all for determination. He relied on Fadiora v. Gbadebo (1978) 3 S.C 219 at 248 and Mogaji AND Ors. v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) 393; (1985) 7 S.C 59 at 60. He said the question of breach of trust was not even pleaded and relied on Adegoke Motors Ltd. v. Adesanya AND Anor. (1989) 3 NWLR (Pt. 109) 250. He said the cause of action arose either in 1955 when Mr. Abodunrin let the land to the 1st defendant or 1969 when the 1st defendant continued with the payment of rents to the 2nd defendant. With respect to the 3rd issue learned counsel referred to section 36 (2) of the Land Use Act and submitted that since the defendants have been in exclusive possession they are presumed to have been issued with the certificate of occupancy. He submitted that since the promulgation of the Land Use Act the only rights claimable are (a) statutory rights of occupancy and (b) customary right of occupancy and that nobody can claim for possession. On the 4th issue he referred to the evidence of the plaintiff at page 48 lines 25-29 which, he argued, showed the relationship of landlord and tenant requiring the pre-action notices.
I shall start first with the preliminary objection. There is no doubt that the ideal thing to do is to specifically relate every issue to a ground or grounds of appeal. This was not done and the respondent contended that the appeal is incompetent and urged us to dismiss same. A close look at the grounds of appeal, the particulars and the issues shows clearly that issue No. 1 is derived from grounds 3 and 4, issue No. 2 from ground 1, issue No. 3 from ground 2 and issue No. 4 from ground 5. This ought to have been specifically stated in the appellants’ brief. The question is can this court treat the appeal as not having been abandoned and dismiss it because of that failure so to relate the issues specifically to the grounds of appeal. In my view such a course of action is likely to defeat the ends of justice. The failure to so state can be said to have rendered the brief a bad, faulty or inelegant brief. It is nevertheless a brief upon which the appellant should be heard and the appeal determined on the merits. See Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279. In that case the Supreme Court per Oputa JSC at page 300 said of a bad brief thus –
“A bad, faulty and/or inelegant brief will surely attract some adverse comments from the court but it will be stretching the matter too far to regard such defective brief as no brief. A faulty brief which is faulty – the court cannot close ones eyes to the fact of its existence.”
Afterall the object of courts is to do substantial justice between parties. On this subject of the courts Oputa, JSC at page 303 said:
“But be that as it may, it is a well established principle that the object of courts is to decide the rights of parties not to punish them for the mistakes they or their counsel may make in the conduct of their cases or appeals by deciding otherwise than in accordance with their rights.”
On the issues, I shall first consider the 2nd issue which raises the question of competence of the action and the jurisdiction of the court below to entertain same. Section 6(2) of the Limitation Law Cap. 64 Laws of Oyo State of Nigeria 1978 says:
“No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims to that person:
Provided that, if the right of action first accrued to the state through which the person bringing the action claims the action may be brought at any time before the expiration of the period during which the action could have been brought by the state or of twelve years from the date on which the right of action accrued to some person other than the state whichever period first expires.”
The issue for determination is the date in which the right of action accrued to the plaintiff/respondent. On this question of ascertaining the period of limitation I would rely on the illuminating statement of the Supreme Court in Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20 where the court per Oputa JSC said –
“How does one determine the period of limitation? The answer is simple – by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed.”
It is also settled that it is the defendant who should plead and prove that the action is statute barred and for this purpose it is not enough to plead in the statement of defence the date the cause of action accrued to the plaintiff. That can only suffice where the date so pleaded in the statement of defence is admitted by the plaintiff in a reply to the statement of defence. See Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping Transport Agencies Ltd. AND Anor. (1987) 1 NWLR (Pt. 49) 212. See also Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 and Eboigbe v. N.N.P.C (1994) 5 NWLR (Pt. 347) 649 at 658 – 659.
On this question of when the cause of action arose paragraphs 15 – 28 of the amended statement of claim are relevant. The substance of the facts pleaded therein is that about 20 years ago plaintiff’s father rented the land in dispute to the 1st defendant for N5.00 monthly rent which rent was paid regularly until he (plaintiff’s father) died about 15 years ago after which the rents were paid to the plaintiff. Following the movement of the plaintiff to Oluwole village the rents were, on the instruction of the plaintiff, paid to the 2nd defendant for onward transmission to him. The plaintiff received the rents from the 2nd defendant every year when he came to Ibadan for Christmas and the last so received was for the year 1986. In 1987 however the defendants refused to pay the rents to the plaintiff on the claim that the land belonged to the 2nd defendant. It is this refusal to pay the rents in 1987 and the 2nd defendant’s claim of title over the land that prompted this action. Apart from some differences particularly as to the number of years the evidence of the plaintiff at pages 48-50 is substantially to the same effect. Thus the statement of claim and the evidence of the plaintiff in support thereof show that the cause of action arose about December, 1987 when the defendants refused to pay the rent for the plaintiff and claimed that the land belonged to the 2nd defendant. The writ of summons at pages 1 and 2 of the record shows that it was filed on the 24/3/88 which is less than a year from the time the cause of action arose. I hold in the circumstances that the action is not statute barred. The second issue is accordingly resolved in favour of the respondent.
Next is the 3rd issue which also raised the question of competence in view of the provisions of the Land Use Act 1978. The submission of the appellant here is that since the coming into effect of the Land Use Act 1978 all land in the state become vested in the government of the state and that no individual can sue for possession as claimed herein. On the incidents of a customary ownership of land after the coming into effect of the Land Use Act, Garuba Abioye AND Ors. v. SA’Adu Yakubu AND Ors. (1991) 5 NWLR (Pt. 190) 130, is quite instructive. On the question of whether the Land Use Act has extinguished or even altered the position of the customary landlord and tenant the Supreme Court per Karibi-Whyte at page 236 said –
“I have carefully considered the rationes of the two cases and find them consistent with principle. The two constructions of section 36(1) of the Land Use Act is to the effect that a holder of land before the commencement of the Act holds under the same law after as before. Hence a claim for forfeiture before the Act remains after the commencement of the Act, the same.”
This statement is to the effect that the Land Use Act has preserved the customary right of both the customary landlord and customary tenant in respect of land held by them. A person, family or community that had title to a parcel of land before the coming into effect of the Land Use Act is deemed to be the holder of right of occupancy, statutory or customary depending on the location of the land in urban or non-urban area.
This is the effect of sections 34(2)(3) AND (6) and 36(2) (3) AND (4) of the Land Use Act 1978. The position of the law therefore is that a customary landlord who had the right to sue a customary tenant retains the right to sue notwithstanding the coming into force of the Land Use Act. The contention of the appellant that the plaintiff/respondent no longer had the right to sue for possession because of the Land Use Act is a misconception. See also Gilbert Onwuka AND Ors v. Michael Ediala AND Anor. (1989) 1 NWLR (Pt. 96) 182 at 199; Alhaji Amusa Akintola v. Chief Salami Oyelade (1993) 3 NWLR (Pt. 282) 379. For the foregoing reasons I also resolve the third issue in favour of the respondent.
The 4th issue still concerns competence of the action before the lower court. The submission of the appellant here is that since the action is one between a landlord and tenant for recovery of possession it ought to have been preceded (i) by the pre-action notice to quit and (2) by the seven days notice of the landlord’s intention to sue and that the action was for failure to serve the said notices null and void. He relied on Sule v. Nigerian Cotton Board (supra) and Ihenacho v. Uzochukwu (supra).
In Sule v. Nigerian Cotton Board the defendant therein counter-claimed for recovery of possession of a residential premises at No. 13A Dakar Road Apapa and the statute which requirements fell for consideration was the Lagos State Rent Control and Recovery of Residential Premises Edict No.9 of 1976 and the amended Edict No. 14 of 1977. And Ihenacho v. Uzochukwu (1997) 2 NWLR (Pt. 487) 257; (1997) 1 SCNJ 117, the property concerned was one store and premises situated at No. 31 Rwang Pam Street, Jos and the statute considered was the Recovery of Premises Law Cap. 115, Laws of Northern Nigeria 1963. Both cases deal with the recovery of possession of a building or part thereof and the premises which rents and other related matters are stipulated for by statute. These cases in my view are distinguishable from the instant case which concerns the recovery of possession of land under a customary tenancy. Our attention was not drawn to the statute which governs the relationship of the parties in this case. In conclusion therefore that the pre-action notices to quit and of the landlord’s intention to recover possession which apply in recovery of premises cases do not apply in cases for possession to land. The 4th issue is for the foregoing reasons also resolved in favour of the respondent.
I now come to the 1st issue which is all about weight of evidence. The strongest argument of the appellants here is the contradictions in the case of the plaintiff which details were highlighted in the argument. The contradictions were also highlighted in the address of defence counsel at the court below. I have no doubt about the contradictions myself. In paragraph 15 of the amended statement of claim for instance the plaintiff’s father was alleged to have rented the land in dispute to the 1st defendant about 20 years ago. In his evidence-in-chief at page 48 line 17-19 he stated that it was about 27 years ago. And yet in cross-examination he said the 1st defendant was put on the land about 30 years ago. Despite these and other contradictions the learned trial Judge found for the plaintiff/respondent. The question is was he justified in his findings and conclusions? First with respect to the contradictions referred to above about the time the plaintiff’s father rented the land in dispute to the 1st defendant the contradiction was the changes from 20 years pleaded to 27 years in his evidence-in-chief to 30 years under cross-examination. However the 80 years old plaintiff was consistent in the main assertion that it was his father that let the property to the 1st defendant.
On the question of whether the learned trial Judge was justified in his findings and conclusions we look at the pleadings and the evidence. First of all it is a common ground that the Delesolu family was the original grantor family of the land in dispute. See paragraph 6 of the amended statement of claim and paragraph 3 of the statement of defence. It was also pleaded in paragraph 4 of the statement of claim and 12 of the statement of defence that the parties are not related. With respect to the land in dispute while it was pleaded in paragraph 8 of the statement of claim that Delesolu granted a parcel of land including the land in dispute to the plaintiff’s ancestor Oluwole, the defendants pleaded in paragraph 3 of the statement of defence that Delesolu granted it to 2nd defendant’s ancestor Sangogade. Thus the most crucial aspect of the case is the family to which Delesolu granted the land in dispute and which therefore had title to it.
At the trial the plaintiff adduced evidence substantially as pleaded. And plaintiff’s witnesses included the PW3 Olukemi Abodunrin who was a relation of the 2nd defendant. According to her the land in dispute belongs to the plaintiff. Her father was Abodunrin Alabi and his house abuts the land in dispute. According to her it was the plaintiff’s father who granted the land to her father on which he built the house. The plaintiff’s witnesses also included the PW4 Olaleke Delesolu who was said to be a member of the grantor Delesolu family. He also said that the plaintiff was the owner of the land in dispute and that it was granted by his ancestor Delesolu to the plaintiff’s ancestor Oluwole. The weight of the evidence from the PW3 a member of the 2nd defendant’s family and PW4 a member of the Delesolu grantor family cannot be over emphasized.
For the defence it was pleaded in paragraph 3 of the statement of defence that the land in dispute formed part of the land which the Delesolu family granted to 2nd defendant’s ancestor Sangodade. It was again pleaded in paragraph 8 of the statement of defence that Delesolu also granted a parcel of land to Oluwole at Oje Area, Ibadan. Implicit in paragraph 8 is that the land which Delesolu granted to Oluwole is different from the land in dispute. At the trial however both the 3rd DW and 4th DW (2nd defendant) gave evidence different from what was pleaded. Under cross-examination the 3rd DW said –
“The land in dispute is part of Oluwole family land. I know Yekinni Adeniyi the 1st defendant. He has a workshop on the land in dispute.” (see page 58 lines 12 –1 4 of the record)”
And the 4th DW also under cross-examination said –
“The land in dispute is at Oluwole compound. Both Oluwole and Sangogade came to Ibadan together. Delesolu granted Oluwole land and the land in dispute forms part of it.”
Thus instead of the land in dispute forming part of the land which Delesolu granted to 2nd defendant’s ancestor Sangogade as pleaded in paragraph 3 of the statement of defence, it was, in evidence, now part of the land which he granted to Oluwole. This was not the case of the defence and the learned trial Judge concluded that the evidence was not only at variance with their case as pleaded but also that it supported the case of the plaintiff. I have no reason to disagree with that conclusion of the learned trial Judge. On this question of who has title to the land in dispute I would like to revisit the evidence of the 3rd PW Olukemi Abodunrin. She was a relation of both the 3rd DW and 4th DW (2nd defendant). She was the first daughter of Abodunrin Alabi from whom the 2nd defendant claimed he inherited the land. I also take particular note of the evidence of the 4th PW Olaleke Delesolu from the grantor Delesolu family and the fact that the defence called no evidence from the said grantor family. On this question of who has title to the land in dispute the above quoted evidence of the 3rd DW and 4th DW (2nd defendant_ together with what I consider to be the strong evidence of the 3rd PW and 4th PW clearly tilts the balance of probability in favour of the plaintiff. At page 84 lines 14-19 of the record the learned trial Judge found as follows:
“I hold also that the whole area known and called Oluwole compound of which the land in dispute forms part of was originally granted to Oluwole the ancestor of the plaintiff by Delesolu. That after the death of Oluwole, the said parcel of land became Oluwole family land.”
This finding is amply supported by evidence and as already indicated above I have no reason whatsoever to disturb it.
This however is not the end of the matter. The 1st defendant/appellant is in physical possession of the land in dispute and said he had been there since 1955 under a tenancy agreement with the 2nd defendant/appellant. The plaintiff/respondent denied this and contended that the 1st defendant was put on the land as a tenant by his father to whom he paid rents. After the death of his father the 1st defendant through the 2nd defendant paid the rents to him until 1987 when he (1st defendant) refused to pay. There was thus the issue of the party on whose authority 1st defendant occupied the land in dispute. The learned trial Judge did not make a specific finding on this issue. Assuming that he found in favour of the defence could that have altered the plaintiff’s title to the land? This is the next question. It is settled law that a plaintiff who maintains an action for declaration of title or for possession to a piece of land against a defendant in possession of the land, even though adverse, must prove a better title to the land. Since he successfully established his title to the land, then the onus shifts on the defendant in possession to show a better title. This is so because in such a situation no amount of possession or acts of ownership can compete with and oust the title of the plaintiff. See Ezulumeri Ohiaeri AND Anor. v. Adinnu Akabeze AND Ors. (1992) 2 NWLR (Pt. 221) 1 at 28 and 32, Emmanuel Aderibigbe Adeniran v. Emmanuel Alao (1992) 2 NWLR (Pt. 223) 350 at 371; Ajeigbe v. Odedina (1988) 1 NWLR (Pt. 72) 584; John Bankole AND Ors. v. Mojidi Pelu AND Ors. (1991) 8 NWLR (Pt. 211) 523 at 541.
In the instant case the plaintiff/respondent having successfully established his title to the land in dispute discharged the onus of proof on him. The burden shifted to the 2nd defendant to prove that he has a better title to the land in dispute and there is no doubt that he failed to do so. His possession of the land, no matter for how long cannot rank with the plaintiff’s title. In such circumstances the plaintiff was entitled to the possession claimed and was in my opinion rightly granted same by the court below. For the above reasons I resolve the 1st issue also in favour of the plaintiff/respondent.
In the final result I hold that this appeal lacks merit and is accordingly dismissed. I assess the costs of this appeal at N5,000.00 in favour of the respondent.
DALHATU ADAMU, JCA:I have had the opportunity of reading the draft of the leading judgment of my learned brother Tabai JCA in this appeal. I am in full agreement with the reasons given and the conclusion reached in the said judgment. I am also of the view that the appeal lacks merit and I accordingly dismiss it while abiding by the order on costs as made in the leading judgment.
OLUFUNLOLA OYELOLA ADEKEYE, JCA:I had a preview of the judgment just delivered by my learned brother Francis Fedode Tabai JCA. After a perusal of the four issues for determination raised by the appellants in their brief, and the overall consideration of the submissions, reasoning and conclusion I agree entirely that the appeal lacks substance and merit. The appeal is dismissed accordingly. I abide by the order on costs.
Cases referred to in the judgment
Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130.
Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250; (1989) 5 SCNJ 80.
Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214; (1987) 6 SCNJ 127.
Adeniran v. Alao (1992) 2 NWLR (Pt. 223) 350.
Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414; (1993) 1 SCNJ 77.
Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1.
Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91.
Ajeigbe v. Odedina (1988) 1 NWLR (Pt. 72) 584.
Akinfolarin v. Akinnola (1994) 3 NWLR (Pt. 335) 659; (1994) 4 SCNJ 30.
Akintola v. Oyelade (1993) 3 NWLR (Pt. 282) 379.
Amobi v. Amobi (1996) 8 NWLR (Pt. 469) 638; (1996) 9-10 SCNJ 207.
Ayinla v. Adigun (1986) 3 NWLR (Pt. 30) 511.
Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523.
Chukwuogor v. Obuora (1987) 3 NWLR (Pt. 61) 454.
Eboigbe v. N.N.P.C (1994) 5 NWLR (Pt. 347) 649.
Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1.
Elias v. Arinrimisi (1987) 2 NWLR (Pt. 57) 487.
Fadiora v. Gbadebo (1978) 3 S.C 219; (1978) 1 LRN 97.
Ige v. Akoju (1994) 4 NWLR (Pt. 340) 535; (1994) 4 SCNJ 288.
Ihenacho v Uzochukwu (1997) 2 NWLR (Pt. 487) 257; (1997) 1 SCNJ 117.
Jeje v. Kadiri (1987) 4 NWLR (Pt. 65) 460
Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; (1998) 1 SCNJ 143.
Magnusson v. Koiki (1991) 4 NWLR (Pt. 183) 129.
Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) 393; (1985) 7 S.C 59.
Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31; (1997) 5 SCNJ 33
Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279.
Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637; (1993) 9 SCNJ 185.
Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1.
Oilfield Supply Centre v. Johnson (1987) 2 NWLR (Pt. 58) 625.
Okesuji v. Lawal (1986) 2 NWLR (Pt. 22) 417.
Okoya v. Santili (1994) 4 NWLR (Pt. 338) 256; (1994) SCNJ 333.
Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167; (1995) 2 SCNJ 90.
Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182.
Savannah Bank Nig. Ltd. v. Pan Atlantic Shipping Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) 212.
Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17.
Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141; (1990) 1 SCNJ 104.
Statutes referred to in the judgment
Limitation Law Cap. 64 Laws of Oyo State of Nigeria, 1978 s. 6(2).
Land Use Act 1978 Ss. 34(2)(3)(6) AND 36(1)(2)(3).
