3PLR – CHIEF L.K. AJIBARE & ANOR V. JAMES AKOMOLAFE & ANOR

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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CHIEF L.K. AJIBARE & ANOR

V.

JAMES AKOMOLAFE & ANOR

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 31ST DAY OF MARCH, 2011

CA/AE/78/2010

3PLR/2011/27 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

UWANI MUSA ABBA AJI, JCA

CHIDI NWAOMA UWA, JCA

HARUNA MOH’D TSAMMANI, JCA

 

BETWEEN

1. CHIEF L.K. AJIBARE
2. PA JACOB A. ADENIYI (For themselves and on behalf of Ejimo family of Okekere Quarters, Ikere-Ekiti) – Appellant(s)

 

AND

1. JAMES AKOMOLAFE
2. MR. NATHANIEL OLAYINKA OLODANYE (For themselves and on behalf of Sapetu Ibariba Family of Okekere Quarters of Ikere-Ekiti) – Respondent(s)

 

MAIN ISSUES

1. EVIDENCE – BUDEN OF PROOF: On whom lies the burden of establishing a case as disclosed in the pleadings.

“Now, the law is that, in civil cases, the ultimate burden of establishing a case is as disclosed in the pleadings. The burden is therefore on the person who would fail, if upon completion of pleadings no evidence is led thereon on either side. In other words, the general or legal burden of proof is upon the party, whether plaintiff or defendant who asserts the affirmative of the issue. The legal burden is therefore fixed by the pleadings and settled as a question of law, and remains unchanged throughout the trial exactly where the pleadings place it. It never shifts in anyway whatsoever. In this sense, the burden of proof in a civil action or claim rests upon the party who would fail of no evidence at all were given on either side. It is thus fixed by the pleadings before evidence is gone into upon the party against whom the judgment of the court or Tribunal would go, if no further, evidence were adduced. The burden of proof is therefore generally fixed on the plaintiff who seeks the relief to prove his claim that he is in law and in fact entitled to the relief(s) claimed. Thus, if he fails to lead evidence in proof, the court must find against him by holding that he has failed to prove his case on the standard required by law. See MADUMMA V JAMBO (2001) 15 N.W.L.R (Pt.736) P. 461 at P.475: JACK V WHYTE (2001) 6 N.W.L.R (Pt. 709) P. 226 at P. 272: OKENE V ORIANWO (1998) 9 N.W.L.R (Pt. 566) P. 408 at P.440 and NIGERIAN MARITIME SERVICES V ONISESIN (1998) 2 N.W.L.R (pt.538) p. 446.” Per TSAMMANI, J.C.A. (Pp. 44-45, paras. E-E)

 

2. EVIDENCE – BURDEN OF PROOF: Burden of proof on a plaintiff in an action for declaration of title to land

“I had earlier stated the law that, in a claim for declaration of title to land, the plaintiff must adduce concrete and cogent evidence which must satisfy the court that he is entitled to the declaration sought. He must do this on the strength of the evidence adduced by him and his witnesses and not on the weakness of the defence unless such weakness supports his case. In that case, he can take advantage of that weakness in the defendant’s case to prove his case. In other words, in a case of declaration of title to land, the burden of proof rests squarely on the plaintiff, and where he fails to discharge that burden, the Court will dismiss his claim. See NWOKAFOR V NWANKWO UDEGBE & ORS (1963) ALL N.L.R. P.104: EDOSOMWAN V OGBEYFUN (1996) 4 N.W.L.R (Pt. 442) P. 266 at P. 278; ALHAJI RAJI & ORS V GBADEBO COKER & ORS (1981) 5 S.C. P. 197 and ONYERO V NWADIKE (1996) 9 N.W.L.R. P. 231 at PP. 240 – 241.” Per TSAMMANI, J.C.A. (Pp. 60-61, paras. D-A)

 

3. EVIDENCE – BURDEN OF PROOF: Burden of proof on the party who complains about the findings of facts of trial court

“The burden is on the party who complains about the findings of facts and evaluation of evidence to show from the printed evidence on the record how those findings were wrong. In other words he has to demonstrate that if the learned trial judge had not found as he did, the result would have been different.” Per TSAMMANI, J.C.A. (P. 91, paras. F-G)

 

4. EVIDENCE – BURDEN OF PROOF: Whether it is a party claiming a declaratory relief that has the burden of proof

“Based on the law on the burden and standard of proof, a party claiming a declaratory relief has the burden under Sections 135, 136 and 137 of the Evidence Act to prove his own case. That being so, where a party claims for a declaratory relief or right, it behoves on him to satisfy the court by the evidence adduced by him, that he is entitled to the declaration, and not by admission in the pleading of the defendant. This is because; the grant or refusal to grant such a declaratory relief is at the discretion of the Court. In other words, where a party seeks a declaratory judgment, the onus is on him to succeed on the strength of his own case and not the weakness of the case for the defendant. Therefore, a defendant who has not counter-claimed has only the duty to defend and accordingly, a consideration of the defendant’s case and its weakness does not arise until the plaintiff has led evidence showing prima facie that he is entitled to the land in dispute. However, where the fact or facts in the defendants’ case support the plaintiff’s case, the latter can rely on that aspect of defendant’s case that support his case to establish and prove his case. See KODINLINYE V ODU (1935) 2 W.A.C.A, P. 336 at P. 337: ODOFIN V AYOOLA (1984) 11 S.C, P. 72: BELLO V EMEKA (1981) 1 S.C. P. 101 and AKINTOLA V OLUWO (19620 1 S.CN.L.R. P. 352. See also WOLUCHEM V GUDI (1981) 5 S.C. P. 291: ADELAJA V FANOIKI (1990) 2 N.W.L.R (Pt. 131) P. 137; GANKON V UGOCHUKWU CHEMICAL INDUSTRIES LTD. (1993) 6 N.W.L.R (Pt. 297) P.55 and ALECHENDU V OSHOKE (2002) 9 N.W.L.R (Pt. 773) P. 521 at P. 535.” Per TSAMMANI, J.C.A. (Pp. 47-48, paras. E-E)

 

5. EVIDENCE – CONTRADICTION IN EVIDENCE OF A WITNESS: When contradiction in evidence of a witness will affect his credibility

“It is trite law that for a contradiction to affect the credibility of a witness, it must be a material contradiction. It must go to the essentiality of the material fact in issue. See IKUEPENIKAN v STATE (2011) 1 N.WL.R (Pt. 1229) P. 449 and DAGAYYA V STATE (2006) 7 N.W.L.R (pt. 980) P. 637.” Per TSAMMANI, J.C.A. (P. 85, paras. C-D)

 

6. LAND LAW – DECLARATION OF TITLE TO LAND: Whether a claimant in an action for declaration of title to land has duty to show the exact and precise identity of the land on which he bases his claim

“Now, in an action for declaration of title to land, the first duty of a claimant is to show the exact and precise identity of the land on which he hinges his claim. This is because a declaration can only be granted over a piece or parcel of land which can be precisely defined and therefore indentifiable. In other words, a plaintiff who claims for declaration of title over a piece or parcel of land must prove clearly by credible evidence the area of land to which his claim relates and the boundaries thereof. See HENSHAW V EFFANGA (2009) 11 N.W.L.R (PT. 1151) P. 65; EKPEMUPOLO V EDREMODA (2009) 8 N.W.L.R (Pt. 1142) P. 166; UKAEGBU V NWOLOLO (2009) 3 N.W.L.R (Pt. 1127) p. 194; UDECHUKWU V EZEMUO (2009) 14 N.W.L.R (Pt. 1162) P. 525. The necessity of the claimant to read evidence on the identity of the land will arise or become an issue at the trial, if and only if, the defendant has made it so in his statement of defence. Where therefore the identity of the land is not disputed in the defendant’s pleadings, and the land is known to all the parties to the dispute, it will not be necessary to have a survey plan of the land or lead evidence as to the identity of the land in dispute. See NWANKWO V OFOMATA (2009) 11 N.W.L.R. (Pt. 1153) P. 496; EKPEMUPOLO V EDREMODA (Supra) at P. 195; and ANYANWU V UZOWUAKA (2009) 3 N.W.L.R. (Pt. 1159) P. 445” Per TSAMMANI, J.C.A. (Pp. 52-53, paras. F-E)

 

7. LAND LAW – DECLARATION OF TITLE TO LAND: What plaintiff in a claim for declaration of title to land based on traditional history must plead and lead evidence on

“In a claim for declaration of title to land based on traditional history, the plaintiff must plead and lead evidence as to the root of his title to the land. He must also plead and prove the names and history of his ancestors. He also has a duty to plead and trace the genealogy of his ancestors from the original owner and show how his predecessors acquired tile to the land in dispute. In other words the line of succession from the original owner to the present claimant must be traced without leaving any gaps or creating phantom linkages or allowing the linkage to breakdown. It is therefore not enough for the plaintiff to merely plead that he and his predecessors-in-title had owned and possessed the land from time immemorial. To succeed, the plaintiff must plead and prove facts as to: (a) Who founded the land? (b) How the land was founded; and (c) Particulars of the intervening owners through whom he claims. See IROAGBARA V UFOMADU (2009) 11 N.W.L.R (Pt.1153) P. 587 SALAWU (2003) 13 N.W.L.R (Pt. 838) P.637 at pp.650 651: DURUOSIHIMIRI V DURUODUNZE (2001) 9 N.W.L.R (Pt. 717) P. 244: NNABUIFE v NWIGWU(2001) 9 N.W.L.R (pt.719) p.710 at p. 726 and AJIBULU V AJAYI (2004) 11 N.W.L.R (Pt.885) P. 458 at PP.473 – 474.” Per TSAMMANI, J.C.A. (P. 61, paras. A-G)

 

8. ACTION – DECLARATORY RELIEF: Nature of a declaratory order or relief and jurisdiction of the court to grant same

“It is the law that a declaratory order or relief is an independent and separate cause of action on its own. The jurisdiction of the court to make such an order or declaration is therefore not restricted to cases where a plaintiff has a complete and subsisting cause of action. It is usually employed, especially in land cases, where the plaintiff conceives he has a right over land which the court may protect. All a person seeking a declaratory relief in such cases is required to show is the existence of a legal right and which right is contested. See DANTATA v MOHAMMED (2000) 7 N.W.L.R (pt. 664) p. 176 at p. 196 and ADIGUN & ORS v A.G: OYO STATE & ORS (1987) 1 N.W.L.R (pt. 53) P. 678 Pt P.702. Where such declaratory reliefs are sought, the powers of the court to grant them are very wide indeed and only limited by the Court’s own discretion. That being so, a court may grant a declaration where no consequential relief is sought or claimed. The relief may therefore be granted where the Court in considering the entire circumstances of the case, is of the opinion that the party seeking exercise it is fully entitled to the of the court’s jurisdiction. See IRAGUNIMA & ANOR V UCHENDU & ANOR (1996) 2 N.W.L.R (Pt.420) p. 30 at p. 53; ELENDU V EKWOABU & 5 ORS (1995) 3 N.W.L.R (Pt. 386) P.704 at P.704 at P. 749 and EKWUNO V IFEJIKA (1960) S.C.N.L.R, P. 320” Per TSAMMANI, J.C.A. (Pp. 46-47, paras. F-E)

 

9. ACTION – DECLARATORY RELIEFS: Whether declaratory reliefs are granted in default of defence or on admissions, without hearing evidence

“…it is the law that declaratory reliefs are not granted in default of defence or even on admissions, without hearing evidence and the Court being satisfied by such evidence. See U.B.N LTD V JIMBA (2001) 12 N.W.L.R (Pt. 727) P. 505 at PP. 518 – 519: MAKANJUOLA V AJIORE (2001) 12 N.W.L.R (Pt. 527) P. 416 at PP. 437 – 438. I therefore hold that the Respondents failed to prove that they are entitled to a declaration of title to the land in dispute on the evidence of traditional history. See also NKWOCHA V OFURUM (2002) 5, N.W.L.R (Pt. 761) P.506 at PP. 524 – 525 and SALAHU & ORS V PARA-KOVI (2001) I N.W.L.R (Pt. 695) P. 446 at P. 456 Per Galadima, J.C.A (as he then was).” Per TSAMMANI, J.C.A. (Pp. 76-77, paras. F-B)

 

10. EVIDENCE – EVIDENCE GIVEN IN PREVIOUS PROCEEDINGS: Conditions under which evidence given by a witness in proceedings can be used in subsequent proceedings

“The Court could only have utilized the evidence of such witnesses if Section 34 (1) (a) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 had been complied with. By the said provision of the Evidence Act, evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent judicial proceedings, or in a later stage of the same judicial proceeding, the truth of the facts which it states; when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expenses which, in the circumstances of the case, the Court considers unreasonable. See CHIEF AMODU TIJANI DADA V MR. JACOB BANKOLE & ORS (2008) 3 M.J.S.C. P.1 and AKOMA V OSENWOKWU (Supra) at PP. 114 – 115.” Per TSAMMANI, J.C.A. (Pp. 75-76, paras. F-C)

 

11. APPEAL – FINDING OF FACT: What is the consequence where a specific finding of fact of a trial court is not appealed against by any of the parties

“the law is now clearly settled that, where a trial court makes a specific finding of fact and such finding of facts is not appealed against by any of the parties, such finding of fact shall be deemed admitted and undisputed. See IJALE V LEVENTIS CO. LTD (1959) S.C.N.L.R. P. 255; DABUP V. KOLO (1993) 9 N.W.L.R (Pt. 317) AT P. 269; ZEKERI V ALHASSAN (2002) 14 N.W.L.R. (Pt. 798) P. 52 at P. 73 Per Muntaka-Coomasie, J.C.A. (as he then was); OLANREWAJU V THE GOV: OYO STATE & ORS (1992) 11 – 12 S.C.N.J, P. 92: OBIOHA & ORS V CHIEF NWOFOR DURU & ORS (1994) S.C.N.J, P. 252 and KOYA V U.B.A LTD (1997) 1 N.W.L.R (pt. 481) P. 251 at P.266. Such finding is deemed correct. See OKWUJI V ISHOLA (1982) S.C, P. 314 at P. 349. It therefore means that, where a party fails to appeal against a specific finding of a trial court, and the legal conclusions thereon, he cannot be heard to complaint in respect of those findings. Whether those findings of the trial court are wrong or right such a party cannot be heard. See OYESAN V SANUSI (1984) 4 S.C, P. 115 at P. 123: NIG. GENERAL SUPERINTENDENCE V N.P.A (1989) 3 N.S.C. P.519 at PP. 524 – 525: OBA WOLE V COKER (1994) 5 N.W.L.R (Pt.345) P. 416 at PP. 440 – 441 and AJIDAHUN V AJIDAHUN (2000) 8 W.R.N, P. 417 at P.27.” Per TSAMMANI, J.C.A. (Pp. 79-80, paras. C-B)

 

12. APPEAL – INTERFERENCE WITH FINDINGS OF FACT: Reasons why an Appellate court will and will not interfere with the findings of fact by the trial court

“The law is now settled that it is the duty of the trial court that had the advantage of seeing and hearing the witnesses, to evaluate and ascribe probative value to the evidence adduced at the trial. An Appellate court which does not enjoy this singular opportunity of seeing and hearing the witnesses will be reluctant to interfere with the findings of fact by the trial court, especially where such findings have to do with the credibility of witnesses. An Appellate Court is only enjoined to interfere where the trial Court has failed to satisfactorily perform its primary function of evaluating and ascribing probative value to the evidence. Otherwise, an appellate court will not interfere. In doing that the appellate court will only look at the cold facts as presented on the record. The appellate court will normally interfere with the findings of fact and ascription of probative value to evidence where there are special circumstances to warrant or justify doing so. Where the Appellate court finds from the record that the trial court failed to properly evaluate the evidence presented before it and which finding led to a perverse decision or miscarriage of justice, it will interfere. A perverse decision is one where the trial court took into account matters which it ought not to have taken into account or where it shut its eyes to cogent facts before it. In general however, appellate courts are slow and circumspect in reversing findings of a trial court unless it is fully and satisfactorily shown that such findings of fact are not supported by the evidence on record. See ALI V SALIHU (2011) 1 N.W.L.R (Pt. 1228) P. 227: NIKAGBATSE V OPUYE (2010) 14 N.W.L.R (Pt. 1213) P. 50; P. 50; OGHIRI V N.A.O.C LTD (2010) 14 N.W.L.R (Pt. 1213) P. 208 and OKONKWO V OKONKWO (2010) 14 N.W.L.R (pt.1213) p.228.” Per TSAMMANI, J.C.A. (Pp. 90-91, paras. E-F)

 

13. COURT – JURISDICTION: Whether it is proper for plaintiff who has invoked the jurisdiction of a Court to attack the jurisdiction of the Court by setting up a plea of res judicata in his statement of claim.

“The general principle of law is that, it is anomalous for a plaintiff who has invoked the jurisdiction of a Court to attack the jurisdiction of the Court by setting up a plea of res judicata in his statement of claim. This is because a plea of res judicata prohibits the Court from enquiring into a matter which had already been adjudicated upon to finality by a Court of competent jurisdiction in an earlier suit between the same parties or their privies in respect of the same subject matter. A plea of res judicata therefore ousts the jurisdiction of the court. It has therefore been the general position of the courts that the plea of res judicata is not available to a plaintiff as a basis of his claim except by way of a reply to a defence raised the defendant in a statement of defence. The plaintiff who has invoked the jurisdiction of the court cannot be seen to be raising an issue that will have the effect of ousting the jurisdiction of the Court to entertain the action he has brought before the court. The plea of res judicata normally operates as a shield rather than a sword. Though a plaintiff may not use a previous judgment as a plea of res judicata as a basis for his claim, he may use same to strengthen his case as an act of possession and ownership. See BASSEY v EKANEM (2001) 1 N.W.L.R (Pt. 694) P. 364 at P. 372 and AKOMA V OSENWOKWU (2004) 11 N.W.L.R (Pt. 883) p. 98. Thus, the Supreme Court held in the case of UKAEGBU V UGOJI (1991) 6 N.W.L.R (P. 196) P. 127 at P. 145 Paragraph H per Babalakin; J.S.C. as follows: “I however wish comment on Yoye’s case to the effect that res judicata has no place in a statement of claim. I agree with this statement and the simple reason is that if indeed a plaintiff had got a firm judgment which pleading of res judicata connotes he does not need to go to court to get another judgment again. He should retain that judgment and use it as a shield if any party to that judgment sues him on the same piece of parcel of land on a subject matter to which judgment relates. You do not go to Court to sue again on a land or over a subject matter on which you had already got a subsisting judgment. Therefore to say that the jurisdiction of the Court is ousted in that context is correct.” Per TSAMMANI, J.C.A. (Pp. 72-73, paras. A-D)

 

14. ACTION – PLEADINGS: Use and the effect of pleadings in an action

“It is the law that, in every proceeding in the High Court initiation by writ of summons, it is the pleadings of the parties that determine the direction or course of evidence at the trial. In other words, it is the plaintiff’s pleading which is manifested in the statement of claim, and the defendant’s defence as detailed in the statement of defence, that settle the issues and the evidence to be admitted at the trial. The reason why Courts insist on filing of pleadings by the parties is to enable the Court ascertain as much as possible the issues in controversy between the parties and also give parties to the proceedings advance notice of the case their opponents will present at the trial. It therefore obviates the element of surprise. In arriving at its decision at the conclusion of the trial, a trial Court is expected to sieve through the evidence adduced at the trial, so that it confines itself to the questions raised by the parties in their pleadings to the exclusion of any other fact or question that might have arisen during the hearing. Since parties are expected to confine themselves to their pleadings, any evidence inadvertently admitted at the trial will be irrelevant to the determination and the trial court will be bound to exclude or expunge same. In other words, parties are bound by their pleadings and accordingly any evidence on facts not pleaded goes to no issue. See OHIAERI V AKABEZE (Supra) at P. 27; EKE V OKWARANYIA (2001) 12 N.W.L.R (Pt. 726) P. 181; MAKANJUOLA V AJILORE (2001) 12 N.W.L.R (Pt. 727) P. 416 at P.435 and AGBU V C.S.C.N.S. (2011) 1 N.W.L.R. (Pt. 1229) P. 544” Per TSAMMANI, J.C.A. (Pp. 87-88, paras. F-F)

 

15. ACTION – PLEADINGS: Whether a plaintiff in an action for a declaration of title to land can plead more than one root of title.

“the law permits a plaintiff in an action for a declaration of title to land to plead more than one root of title. Though a party may still succeed where he pleads only one root of title, if he is able to prove it by credible evidence, no law stops him from pleading and proving more than one root of title. If he pleads more than one root of title he does so merely to make assurance doubly-sure. See OBI v ONYEMELUKWE (2011) 1 N.W.L.R (Pt. 1228) P. 400 at PP. 425-426 and BIARIKO V EDEH-OGWUILE (2001) 12 N.W.L.LR (Pt. 726) P. 235 at P. 263. In a situation where a plaintiff pleads and relies on evidence of traditional history and at the same time evidence of positive and numerous acts of possession, he may still succeed in his claim based on the acts of ownership and possession, where the traditional history fails. It means therefore that, where evidence of traditional history is not satisfactory, then the need for the plaintiff to prove the numerous acts of ownership would arise. Even where a plaintiff reties on and has called evidence of traditional history successfully, the law does not preclude him from supporting or buttressing his claim with acts of ownership and user of the land in dispute. It therefore means that a plaintiff may adopt one or more of the methods proving of title or ownership. It is only where he fails to prove his case by means of traditional evidence or history and also fails to establish same by means of evidence of acts of ownership and possession, if they were pleaded and relied upon, that the plaintiff’s case will be dismissed. See BALOGUN V AKANJI (1992) 2 N.W.L.R (Pt. 225) P. 291; EKPO V ITA (1932) 11 N.L.R, P. 68; OHIAERI V AKABEZE (1992) 2 N.W.L.R. (Pt. 221) P. 1 at P. 28; UKAEGBU V NWOLOLO (Supra) at P.232 Paras. A-B and NWOKOROBIA V NWOGU (2009) 10 N.W.L.R. (Pt. 1150) P. 553 at PP. 589 – 590.” Per TSAMMANI, J.C.A. (Pp. 82-83, paras. E-F)

 

16. EVIDENCE – PREVIOUS PROCEEDINGS AS ESTOPPELS: Whether a plaintiff can plead and rely on evidence given by a party in a previous proceeding as estoppels

“I have however found from the authorities that a plaintiff may plead and rely on evidence given by a party in a previous proceeding as estoppels simpliciter. In other words, a plaintiff may plead a previous judgment not as res judicata but as evidence to show that the defendants had sued the plaintiff previously in respect of the subject matter but failed. Thus Babalakin, J.S.C in UKEGBU V UGOJI (Supra) put it succinctly at page 146 paragraph A as follows: “On the other hand pleading of estoppel connotes that the plaintiff and his privies have been sued on the land by the defendant or his privies who failed to obtain judgment against the plaintiffs . . . and by that token plaintiffs cannot say that they have obtained judgment on the land. They still have to go to Court to confirm their ownership of the land concerned against those who sued them and failed. In taking an action to confirm his possession of the land against these set of people he can plead the previous judgment as estoppel for the Court to take same into consideration in determining his case which he has now brought to Court for adjudication” I think that settles the issue in this case, as that is what transpired between the Appellants and the Respondents. Accordingly going by the tenor of the pleadings in paragraphs 9, 10, 11, 12 and 13 of the Amended Statement of Claim and the relief sought thereon at paragraph 18 (a) of the said Amended Statement of Claim, my understanding is that the previous judgments (exhibits A and B) can operate as an estoppel that the Appellants had previously sued the Respondents over the land but failed, so that the Court can take same into consideration in determining his case. See also AKOMA V OSENWOKWU (Supra) at P.113 Paras. C – H.” Per TSAMMANI, J.C.A. (Pp. 74-75, paras. B-C)

 

17. LAND LAW – PROOF OF TITLE TO LAND: What a party who pleads and relies on acts of ownership and possession as his proof of title to land in dispute must show to succeed

“Where a party pleads and relies on acts of ownership and possession as his proof of title to the land in dispute, he must show that such acts not only extend over a sufficient length of time but that they are numerous and positive to warrant the inference that he has exclusive ownership of such land. In other words, once a plaintiff in an action for declaration of title to land is able to lead credible and satisfactory evidence in proof of acts of ownership and possession in and over the land in dispute, extending over a sufficient length of time and numerous and positive enough, as to warrant the inference that he is the true owner of the land, he has discharged the burden reposed on him by law, and he will be entitled to the declaration of title sought. See ONWUGBUFOR V OKOYE (1996) 2 N.W.L.R pt.424 P. 252 at P. 285: ACHIAK PA V NDUKA (2001) 14 N.W.L.R (pt. 734) p. 623 and BASSEY V EKANEM (2001) 1 N.W.L.R (pt. 694) p. 360 at p.377 Paras. A – B.” Per TSAMMANI, J.C.A. (Pp. 82-83, paras. F-C)

 

18. LAND LAW – PROOF OF TITLE TO LAND: Burden on a plaintiff in an action for declaration of title to land and how he can discharge the burden

“In an action for declaration of title to land, the plaintiff must plead and lead evidence as will entitle him to the said declaration and an admission by the defendant will not relieve him from the onus placed on him of proving his claim. In that case, the plaintiff must plead and lead credible evidence from his witnesses that will satisfy the Court that he is entitled to the declaration of title sought. In other words, the Court must be satisfied that the plaintiff owns the title he claims in the action as would entitle him to the declaration of title sought. See NWOKOLO V UKEGBU (1997) 4 N.W.L.R. (Pt. 500) P. 448 – 448; OKEDARA V ADEBARA (1994) 6 N.W.L.R (Pt.349) P. 157 and JIMBA V A.P. (NIG) LTD (1998) 13 N.W.L.R (Pt.581) P. 273 at P.284. That being so, in determining the issue, the trial court must start by considering the evidence led by the plaintiff, so as to see whether the plaintiff has led evidence which is satisfactory. If evidence adduced by the plaintiff is unsatisfactory, then he has not made out a prima facie case, in which case, the trial court does not have to consider the case of the defendant at all. See SANUSI V AMEYOGUN (1992) 4 N.W.L.R (Pt. 237) P. 527 at P. 547: DURU V NWOSU (1989) 4 N.W.L.R (Pt. 113) P. 24: OYEFESO V COKER (1999) 1 N.W.L.R (Pt.588) P. 654 at P. 660 and AGU V NNADI (1999) 2 N.W.L.R (Pt.589) P.131 at P. 142. The burden of leading such evidence is discharged on preponderance of evidence or balance of probabilities. See ARASE V ARASE (1981) 5 S.C, P.33; BROADLINE ENT. LTD V MONTEREY MARITIME CORP. (1995) 9 N.WL.R (Pt. 917) P.1 and IKWUJE V ALENU (2001) 13 W.R.N. P.43 at P. 50. See also MOGAJI V ODOFIN (1978) 4 S.C, P.91 at P.93, However, where no issue is joined in the claim, the onus is discharged on a minimal of proof. see FASEUN v PHARCO (NIG.) LTD (1965) 2 ALL N.L.R. P. 216 at P. 220 and AKAOSE V NWOSU (1997) 1 N.W.L.R (Pt. 482) P. 478 at pp. 493 and 501.The plaintiff may discharge this burden by leading credible evidence in order to prove his title to the land he claims in any of the following ways: (a) Proof by traditional evidence: (b) Proof by production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody. (c) Proofs of acts of ownership in land over the land in dispute such as selling, leasing, making a grant, renting out all or any part of the land or farming on it or portion thereof, extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such proprietary acts are the true owners of the land; (d) Proof of acts of possession and enjoyment of the land which prima facie may be evidence of ownership, not only of the particular piece of land with reference to which such acts are done, but also of other land so situated or connected therewith by Locality or similarity that the presumption under Section 46 of the Evidence Act applies and the inference can be drawn that what is true of the piece of land is likely to be true of other pieces of land; and (e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owners of such connected or adjacent land would in addition be the owners of the land in dispute. In the instant case, the Respondents predicated their claim of title to the land on traditional evidence and acts of ownership. Indeed, they are entitled to do so, as a party may anchor his claim of title to land on one or more of the above stated modes of proving title. See AJIBULU V AJAYI (2004) 11 N.W.L.R (Pt. 885) P. 458: OYEDOKE V THE REG. TRUSIEES OF C.A.C (2001) 3 N.W.L.F (Pt. 701) P. 621 and AKUSOBI V OBINECHIE (2004) 2 N.W.L.R (Pt.857) P. 355.” Per TSAMMANI, J.C.A. (Pp. 49-51, paras. B-F)

 

MAIN JUDGMENT

HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the judgment of D.O Jegede, J of the Ekiti State High Court sitting at Ikere-Ekiti delivered on the 13th day of May, 2009, wherein the learned trial judge granted all the reliefs sought by the Respondents, who were plaintiffs at the lower court. The Appellants who were sued for themselves and on behalf of the Ejimo family of Okekere Quarters, Ikere-Ekiti were defendants at the lower court. The Respondents as plaintiffs at the lower court also sued for themselves and on behalf of Sapetu Ibariba family of Okekere Quarters of Ikere-Ekiti.

Briefly, the Respondent’s case at the lower court is that, the Sapetu Ibariba family- whom they represent is seised of a large expanse of land situate at Igbolo-Ekiri farmland along Ise Road, Ikere-Ekiti under native law and custom from time immemorial, and that the said family has been exercising various acts of ownership and possession thereon without any let or hindrance. It is also their case that the land in dispute was subject of litigation between their family and that of the Appellants, sometimes in 1989 before the Ekiti South Grade 1, Customary Court, Ikere-Ekiti in Suit  No. IC/346/89 between CHIEF DAVID POPOOLA VS CHIEF S.B. FAGBUAGUN. That in that suit, the Appellants’ family was the plaintiff, wherein they claimed damages for trespass and a perpetual injunction, but the suit was dismissed. That the Appellants appealed that decision to the High Court which further affirmed the decision of the Customary Court. The Respondents then contend that to their surprise, they discovered that, sometimes in 2004, the Appellants unlawfully entered the land in dispute, cleared same and constructed a road thereon without their consent. The Respondents then took out a writ of summons against the Appellants at the lower court, dated the 1st day of June, 2004 and filed the same day, wherein they sought the following reliefs, as contained in paragraph 18 of the Amended statement of claim dated the 3/06/2008:

(a)     A declaration that by the judgment of the Ekiti South Grade 1 customary court, Ikere-Ekiti in suit No: IC/346/89; CHIEF DAVID POPOOLA VS CHIEF S.B. FAGBUAGUN delivered on 6th July, 1990 and affirmed by the High court, Ikere-Ekiti in suit No: HCR/11A/1990 on 18th February, 1991, the defendant is estopped from laying any claim of ownership and from carrying out any act of trespass by way of leasing or cultivating or constructing a road or erecting any structure or doing anything to any portion of the land situate, lying and being at Igbolo-Ekiri farmland along Ise Road, Ikere-Ekiti.

(b)     A declaration that all that large parcel of land situate, lying and being at Igbolo-Ekiri farmland along Ise Road, Ikere-Ekiti belongs exclusively to the Sapetu lbariba family of Okekere Quarters, Ikere-Ekiti and the said family is entitled to Customary right of occupancy in respect of same.

(c)     N2.5 Million general damages for trespass committed by the defendant on the aforesaid plaintiff’s farmland which said trespass consists of illegal and unlawful entry upon the plaintiff’s aforesaid farmland and deforestation of same and which trespass still continues.

(d)     An Order of perpetual injunction restraining the defendant, his agents, servants, privies or whoever name called from further trespasbing on the land/or dealing with the aforesaid farmland in such a way and manner as would interfere with the plaintiff’s family ownership right, title and interest in the said family land.

The Appellants as Defendants at the lower court filed an Amended Statement of Defence dated 3rd November, 2008 and filed the same day, to which the Respondents as plaintiffs filed an Amended Reply dated 10/11/2008 and filed the 12/11/2008. Issues were therefore joined and the suit proceeded to hearing.
At the trial before the lower court, evidence was led on behalf of the parties and several documents tendered and admitted as exhibits. At the close of evidence, the parties filed Written Address and the matter adjourned for judgment. In a considered judgment delivered on the 13th day of May, 2009, the learned trial judge gave judgment in favour of the plaintiffs and granted all the reliefs sought by them. The Defendants (now Appellants) are dissatisfied with the judgment of the lower court and have now filed this appeal seeking that the said judgment be set aside. I wish to point out that during the pendency of this appeal, the original Appellant, James Olasehinde Elero, died. Consequently, the Appellants by a Motion on Notice dated the 28/7/2010 and filed the 09/08/2010, sought for the leave of this Court to substitute his name with those of CHIEF L.K AJIBARE and PA JACOB A. ADENIYI and leave was granted them to do so on the 18/10/2010. The processes were accordingly amended to reflect such substitution.

The Grounds of Appeal and the particulars in support thereof are contained in the Appellants’ Notice of Appeal dated the 1st day of August, 2009 and filed the 12th day of August, 2009. I propose therefore to reproduce the said Grounds of Appeal for ease of reference, but without their particulars. They are:

1. The learned Trial Judge erred in law by holding that the plaintiffs proved their case for declaration of title to land having established that onerous task of proving their case when apparently the evidence led by the plaintiff was not only weak but riddled with inconsistencies.
2. The Learned Trial Judge erred in law by holding that the plaintiffs are entitled to their relief for a declaration that they are entitled to customary right of occupancy in respect of the land lying, situate and being at Igbolo Ekiti (sic) along Ise Road, Ikere-Ekiti despite the fact that the area over which the declaration was sought was not proved.
3. The Learned Trial Judge erred in law by relying on the defense of the defendant to boost the weak case of the plaintiffs upon which they were granted declaration right contrary to the well established legal position that for a plaintiff to succeed in a declaratory relief, he must offer credible evidence.
4. The Learned Trial Judge erred in law by placing reliance on exhibit “A” and “B” which are previous judgments in respect of disputes between the plaintiffs and defendants upon which the lower court predicated its judgment which said exhibits did not relate to the title to the land in dispute.
5. The Learned Trial Judge erred in law and or misdirected himself failing to appreciate the case put forward by parties when he confused the contents of Exhibit “A” with the case put forward by parties which evidence relates to the settlement of the parties in their places of abode which is clearly different from the land in dispute.
6. The Learned Trial Judge erred in law by relying on irrelevant facts not pleaded in arriving at his decision.
7. The Learned (sic) erred in law by holding that the defendant did not put forward a defense to the plaintiffs’ claim as far as the disputed land was concerned despite the filing of the statement of defence disputing and denying plaintiffs’ claim.
8. The decision of the lower court is against the weight of evidence.

As required by the Rules and Practice of this Court, parties filed and exchanged briefs of argument. The Appellants’ Brief of Argument which is dated the 22nd day of July, 2010 and filed the 22/10/2010 is settled by Chief A.A Adeniyi of Counsel. The Respondents’ Brief is settled by Bamidele Omotoso Esq., and is dated the 12/11/2010 and filed the 23rd of November, 2010. The Appeal was then heard on the 16th day of February, 2011.

At the hearing of the Appeal, Chief A.A. Adeniyi of learned Counsel for the Appellants adopted the Appellants’ Brief of Argument dated the 22/7/2010 and deemed filed the 18/10/2010. He further cited the case of DADA V BANKOLE (2008) 3 M.J.S.C. P.1 at PP. 14 – 15 as additional authority and urged us to allow the appeal, and set aside the judgment of the lower court. Equally, Mr. Bamidele Omotoso of Learned Counsel for the Respondents adopted the Respondents’ Brief of Argument dated the 12/11/2010 and filed the 23/11/2010. He then urged us to dismiss the appeal and to affirm the judgment of the lower court.

In the Appellants’ Brief of Argument, four (4) issues were distilled for determination from the eight Grounds of Appeal set out in the Notice of Appeal.

They are as follows:

1. Whether considering the facts that the Respondents/Plaintiffs claim for declaration of right of ownership of land, the evidence led by them met the standard of proof required in law to entitle them to a declaration. (This issue is premised on grounds 1, 2, and 3 of the Notice of Appeal).
2. Whether the Trial Court was right in relying on Exhibits A and B which are previous decisions of Court on unrelated subject between the Defendant/Appellant and Plaintiffs/Respondent. (This issue relates to grounds 4 and 5 of the Notice of Appeal).
3. Whether the Trial Court was right by relying heavily on unpleaded and irrelevant facts in arriving at its decision. (Grounds 6 and 7)
4. Whether the decision of the lower court is not against the weight of evidence led in Court. (Ground B).

On the other hand, the Respondents identified the following four (4) issues which in their opinion are the issues that arise for determination: viz:-

1. Whether from the pleadings and evidence adduced by the parties the Respondents are not entitled to the Declaration of title to the land in dispute.
2. Whether the trial Court was precluded from evaluating exhibits A and B which were properly placed before it.
3. Whether from the judgment of the lower court it can rightly be said that the lower court reached its conclusion by placing reliance on un-pleaded facts.
4. Whether the judgment of the lower court is against the weight of evidence.

A careful reading and sober reflection on the issues formulated by the Appellants and the Respondents would show that, the issues are substantially identical. The only difference is in the manner each party couched the issues. That being so, I shall adopt the issues as formulated by the Appellants, in the determination of this appeal. I propose to resolve the issues in the sequence in which they were argued.

The 1st issue formulated by the Appellant for the determination of this Court, is:-

Whether considering the facts that the Respondents/Plaintiffs’ claim which is for declaration of title to land, the evidence led by them met the standard of proof required in law to entitle them to the declaratory reliefs sought.

Arguing on this issue, Chief A.A. Adeniyi of learned counsel for the Appellant reproduced paragraphs 5, 10, 11, 13, and 14 of the Respondents’ Amended Statement of Claim to contend that, going by the very weak, contradictory, unreliable and incoherent evidence put forward by the Respondents at the trial, the learned trial judge was absolutely wrong to have refused to dismiss the Respondents’ claim. That a community reading of paragraphs 5, 10, 11, 13 and 14 reproduced above, will show without disputation that the Respondents’ claim premised on the fact of the ownership is based majorly on traditional history, having claimed to own the land in dispute from time immemorial. He then submitted that, it is well settled that where evidence of traditional history is relied on in proof of 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. He relied on the cases of NKADO V OBIANO (1997) 5 N.W.L.R (Pt. 503) P.31 and AYORINDE V KUFORIJI (2007) 4 N.W.L.R (Pt.1024) P. 341 at P.367 per Okoro. J.C.A: to further submit that, to prove ownership of land through traditional history, general pleadings alone do not suffice. That the genealogical tree of succession must be pleaded and sufficient evidence offered before the Court to establish such title, and that a tangential proof does not suffice. That in proving his claim, parties are not permitted to depart from the traditional history pleaded as the root of title, and place reliance on another form of proof.

It is therefore the submission of learned counsel for the Appellants that no particulars of the traditional history or the order of devolution of title are pleaded by the Respondents other than to state that the land belong to them from time immemorial. That this is not enough, as the Respondents are required to plead the fact in details of how their ancestors or forefathers founded the disputed land and also trace the intervening owners before it devolved on them. He then submitted that, none of the three witnesses called by the Respondents offered any shred of evidence establishing that Respondents’ family owned the land as pleaded in paragraphs 5 and 14 of the Amended Statement of Claim. That the pleadings are not only terse but empty. It is also his submission on this score that, it should impact on the mind of the trial judge that, it has well been settled that, a party who seeks declaratory relief must discharge the onus of establishing his title by proffering credible evidence in proof thereof. That the party must succeed on the strength of his case, as it is irrelevant that his opponent had not challenged the averments relied upon in support of the claim. He then contended that a cursory look of the Appellants’ defence at the lower court will show that Respondents’ averment of ownership was adequately challenged both in the Appellants’ Statement of defence and their evidence at the trial court. He cited the cases of DIM V ENEMUO (2009) 10 N.W.L.R (Pt. 1149) p. 353 at P. 378 per Chukwuma-Eneh, JSC and SANNI V HUGHES (1999) 7 N.W.LR (Pt. 611) p. 474 at P. 486 per Aderemi, J.C.A (as he then was), to submit that, assuming (which he did not concede) that the Appellants did not even deny the fact the Respondents are owners of the disputed land, the Respondents are duty bound to place before the Court, cogent, concrete and convincing evidence of their ownership before they will be entitled to the declaratory reliefs sought by them, because declaratory reliefs are not granted as a matter of course, but on hard facts pleaded and credible and cogent evidence led in Court.

Based on the above submissions learned counsel for the Appellant contended that, the lower court was wrong in holding that the Appellants did not deny the pieces of evidence which satisfied him that the Respondents have proved acts of ownership of the land. He then submitted that since they failed to plead and give historical evidence of ownership and devolution of the land, their case ought to have been dismissed, and that whether the Appellants did not deny the claim would not help the Respondents’ case. That in any case, the finding of the lower court that the Appellants did not deny the Respondents’ claim is not only untrue, but has no basis, because not only did the Appellants deny the claim of ownership of the land in their pleadings, but called true witnesses who gave evidence denying that the Respondents’ own the land. The cases of DIM V ENEMUO (Supra) at P.381 and Paragraphs 2, 5, 6, 7, 8, 9, 10, 11 and 12 of the Amended Statement of Defence were relied on. He further relied on the statements of D.W.1 at page 179 lines 5- I and 191 line 10 and D.W.2 at pages 174 and 193 lines 10 13 of the Record to submit that, the Appellants more than denied that the land in dispute belong to the Respondents’ family.

It was further contended by learned counsel for the Appellant that, assuming (without conceding) that acts of possession was pleaded in the statement of claim, there was no credible evidence of possession placed before the Lower Court by the Respondents upon which the trial Court could make a proper finding of possession in their favour. That, even if the Respondents did give such evidence, they cannot take refuge under such evidence to sustain their claim because, evidence of possession is usually used as a shield and not as a sword. That acts of possession is available to a defendant as opposed to a plaintiff. That by the decision of the Supreme Court in the case of IDUNDUN V OKUMAGBA (2002) 20 W.R.N. P. 127 at P. 143, the Lower Court ought to have found that the Respondents failed to prove act of possession and that if they did, such act of possession was only available to the Appellant in defence of the action and not the Respondents as claimants. The cases of MOGAJI V CADBURY NIG. LTD. (1985) 2 N.W.L.R (Pt.7) P. 393: OLUJEBU V OSO (1972) 5 S.C. P. 143 at P. 151: ALUDE V AWO (1975) 4 S.C. P. 215 at P. 228 and ATANDA V AJANI (1988) 3 N.W.L.R (Pt.111) P. 511 were further cited in support.

It is also the submission of learned counsel for the Appellants that there are contradictions in the oral testimony of the P.W.1 and P.W.2. That P.W.1 who claimed to be a tenant on the land in dispute first testified that, he does not have farm on the area, but later contradicted him by stating that he still has his farm there. That P.W.2 stated at page 168 of the Record that, the land is at Igbolo and that he lives on the land, but said at page 169 of the Record that he lives at Aba Aso and that Aba Aso is not part of the land in dispute. It is therefore the submission of learned counsel for the Appellants that those two witnesses do not deserve any measure of credibility by the Lower Court, but the trial judge wrongly hinged on their evidence to find in favour of the Respondents.

Learned Counsel for the Appellant went on to submit that, in a claim for declaration of title to land, the claimant must prove the identity of the land he is claiming with definite certainty. He cited in support the case of NWOKOROBIA V NWOGU (2009) 10 N.W.L.R (Pt.1150) P. 553 at P.572 to submit that such proof can be by evidence of the boundary men of the land in dispute and a plan, and that neither was placed before the trial Court. He then contended that the decision of the trial court as set out at pages 216 and 219 – 220 of the Record is that the land in dispute was clearly identified and known to the parties. He further reproduced the statements of P.W. 1 at p.166 and P.167 to contend that it is clear from the oral testimony of the p.w.1 that the Appellants have a land lying between the P.W.1’s and D.W.2’s land and that the Appellants’ family does not share boundary with the Respondents. He also relied on the testimony of the 1st Respondent who testified at P.w.3; at page 169 and 173 of the Record which he contends supports the testimony of P.w.1 and P.w.2. That the testimonies of p.w.1 and p.w.2 are clearly admissions by the Respondents, witnesses which is against the Respondents’ interest and that the lower court ought to have relied on same to dismiss the Respondents’ claim. That the D.w.1 and D.w.2 also stated that the Ejimo family (Appellants’ family) has their land bordering that of the Alawe family and that the Alawe family land is between the Appellants’ and Respondents’ family lands.

Learned counsel for the Appellant therefore contended that, with all the disputations and contradictions in the testimonies of all the witnesses as to the identity of the land, the trial Court still held that the identity of the land in dispute was not in dispute. He then submitted that, the conclusion and finding of the learned trial judge that all the parties know the land in dispute is not only perverse but cannot be sustained as it lacks evidence and without foundation.
On this issue, Mr. Bamidele Omotoso of learned counsel for the Respondents submitted that, it is trite law that in an action for declaration of title to land, the onus is on the plaintiff to satisfy the Court that he is entitled on the evidence adduced by him before the Court to a declaration of title in his favour, and that in doing this, the plaintiff must rely on the strength of his own case and not on the weakness of the case for the defendant. That while the evidence of the defendant tends to support that of the plaintiff however, the plaintiff is entitled to take full advantage of such evidence to prove his title. The case of EFETIROROJE V OKPALEKE II (1991) 5 N.W.L.R (Pt. 193) P. 517 at P. 521 was cited in support. Learned counsel then proceeded to enumerate the five (5) ways of proving ownership of land as stated in the case of IROLO V UKA (2002) 14 N.W.L.R (Pt.786) P. 195 at PP. 229 – 231 Paragraph D – F to submit that, the plaintiff will succeed if he is able to prove one of them, even if he pleads any number of these five ways. He relied further on the case of PIARO V TENALO (1976) 12 S.C. P. 31 at PP. 40 – 41 Per Obaseki. Ag. J.S.C (as he then was). He then submitted that, an examination of the Respondents’ pleadings in this case show clearly that the Respondents pleaded acts of ownership extending over a sufficient length of time as required by decided cases. Paragraphs 14 of the Amended Statement of Claim and 12 and 13 of the Amended Reply to the Amended Statement of Defence were further relied on to buttress this point. See pages 111 and 141 of the Record of Appeal.

It is also the contention of learned counsel for the Respondent that, a close and careful examination of the Appellants pleadings at pages 133 – 136 of the Record reveals clearly that the Appellants did not specifically deny the Respondents’ aforesaid averments on the various acts of ownership exercised by the Respondents. That it is trite law that a general traverse is not enough to controvert material and essential averments in a statement of claim which may form the very foundation of the plaintiff’s claim. He then contended that, where any delegation of fact in the statement of claim has not been specifically denied, the implication is that the plaintiff is not obliged to establish it by evidence. The cases of OMPADEC V DALEK (NIG) LTD (2002) 12 N.W.L.R (Pt. 781) P. 384 at P. 394 Paras. A – D and USMAN V ABUBAKAR (2001) 12 N.W.L.R (Pt. 728) P. 685 at p.707 paras F – G per Salami, J.C.A (as he then was) were further cited to submit that, the implication is that, the averments of acts of ownership contained in paragraphs 14(a) (d) of the Amended Statement of Claim as well as paragraphs 12 and 13 of the Amended Reply to the Amended Statement of Defence are taken as established. It is further submitted that the consequence is that the following facts are taken as established, viz:-

(a)     That members of the Respondents’ family are farming on land in dispute and have planted cocoa, kolanuts, oranges other economic crops on the land.

(b)     That the Respondents’ family has customary tenants on the land who annually pay tributes or loyalties to them.

(c)     That the Respondents’ family long time ago gave part of the disputed land to one Orimaye for farming purposes.

That the above stated facts as pleaded by the Respondents from the very foundation of the Respondents’ claim for declaration of title of the land in dispute, and therefore, the Respondents have by implication proved one of the five ways of establishing title to land.

Learned counsel for the Respondents contended further that, the Respondents took a step further to establish by evidence the said averments. He referred specifically to the oral testimonies of the P.W.2 on pages 168 – 169, P.W. 1 at Page 166 and P.w.3 on pages 169, 171 and 174 of the Record on the issue. He equally reproduced parts of the testimony of the D.w.1 at page 91, D.w.2 at page 193 of the Record to submit that, the necessary inference to be drawn for the testimony of those witnesses is that the land is well known to the parties, and therefore the question of proof of the identity of the land does not arise. The case of AKINTERINWA V OLADUNJOYE (2000) 6 N.W.L.R (Pt. 659) P. 92 at 114 paras. D – E per Karibi-Whyte. J.S.C: EKWOMCHI V UKWU (2002) 1 N.W.L.R (pt. 749) p. 592 at p.607 Paras. C – D and OSUJI V OGUALAJI 2002 16 N.W.L.R (pt. 792) p.136 at PP. 151 – 152-Paras. H – E was cited in support. It was therefore submitted that, from the pleadings at paragraphs 10 and 11 of the Amended Statement of Claim, and the evidence of the parties that the trial Court had no difficulty in identifying the land in dispute as it is clear on the record that both parties had once litigated on the land in dispute. That it is established law that, the fact that the parties gave the land in dispute different names will not necessarily put the identity of the land in dispute.

Learned counsel for the Respondents went on to submit that it cannot be contended as learned counsel for the Appellant did that, the identity of the land is not in dispute because, D.W.2 who is a witness called by the Appellants never testified that the land in dispute belongs to the Appellants’ family. Furthermore, that the Appellants in their pleadings at paragraphs 3, 4 and 15 of the Amended Statement of Defence denied knowing Sapetu family or Sapetu Ibariba family, but called witnesses, who testified that the Respondents are from the Sapetu Ibariba family. The testimony of D.W. 1 at pages 178 and 191 and that of the D.W.2 on pages 192- 194 were cited in support. Learned counsel then submitted that where there is contrary evidence as to the pleaded facts; such evidence is treated as not being established before the Court. The case of ODUSOTE V MILITARY GOVERNOR, OGUN STATE (2002) 10 N.W.L.R (Pt.776) P. 566 at P.605 Para. C was cited in support. See also CHIMA V NKAMA (2001) 11 N.W.L.R (Pt.724) P. 449 at P. 463 paras. D – F.

On the contention of the Appellants that the Respondents failed to plead and prove traditional history as to their root of title, learned counsel for the Respondents submitted that, the Respondents did not only plead traditional history of their root of title, but also proved them. That the Respondents pleaded at page 110 – 112 the certified True Copy of the record of proceedings in suit No: IC/346/2009: CHIEF DAVID POPOOLA V CHIEF S.B. FAGBUAGAN and tendered same in evidence as exhibit “A” without objection. That Exhibit “A” contains the traditional history of the root of title of the Respondents to the land in dispute. He then contended that upon the admission of the Certified True Copy of the proceedings (Exhibit “A”), same became a documentary evidence which the trial court is at liberty to use as an instrument with which to evaluate the oral evidence of the Respondents. That what the trial judge did in the instant case was an evaluation of Exhibit “A” and did not go beyond making use of what were already on the face of Exhibit “A”. He accordingly urged us to discountenance the arguments of learned counsel for the Appellants on Exhibit “A” on the ground that they are belated as Appellants’ counsel had not answers to the issues raised by Respondents’ counsel in his address before the trial court on Exhibit “A”, apart from simply urging the learned trial judge to discountenance the said Exhibit. That in any case, exhibits are not tendered for the fun of it, but for a purpose, and that once they form part of the record, they must be examined, scrutinized and assessed for just determination of the case. He relied on J.M. BUBA V THE STATE (1992) 1 N.W.L.R (Pt. 215) P. 1 at P. 16 and DAWODU V MOJOLAGBE (2001) 3 N.W.L.R (Pt.703) P.243.

It is also contended that the Appellants’ counsel only made reference to page 1 of Exhibit “A” wherein the plaintiffs’ claim was endorsed without looking closely and carefully to the entire proceedings of the customary court. He submitted therefore that, going through the entire proceedings before the customary court as contained in Exhibit ‘A’, it would not be difficult in seeing that ownership of the land was in dispute and not just a claim for trespass. That the learned trial judge rightly found so on page 212 of the record.

On the alleged contradictions pointed out at pages 15 – 10 of the Appellants’ Brief of Argument, learned counsel for the Respondents pleaded that they had customary tenants on the land who farmed thereon and not that the customary tenants live on the land. That in exhibit “A” the Appellants’ family acknowledged the fact that the Respondents’ family had tenants on the land in dispute, when they averred to those facts in paragraphs 3 and 4 of their claim. Furthermore, that P.W.3 was not cross-examined by the Appellants’ counsel on his evidence that their family put tenant on the farmland, as well as the provirus judgment of the customary court between the two parties. He then submitted that, assuming that there are such contradictions (which he does not concede) they are minor and immaterial, and that an appellate court will not interfere with the findings of facts of a trial court because of minor inconsistencies in the evidence of the witness. He relied on the case ASIMIYU & ORS V THE STATE (1982) 70 S.C, P.7 at P. 13.

Learned counsel for the Respondents submitted finally on this issue that, it is on record that the Respondents pleaded and proved traditional history of their root of title as well as acts of ownership contrary to the learned Appellants’ counsel’s contention that the Respondents only pleaded traditional history. That the learned trial judge found as such at page 208 of the record. That the Appellants did not appeal against the aforesaid findings of fact of the trial court, and therefore the finding of the trial court that the Respondents did not solely depend on traditional history in proof of their title to the land in dispute remains binding on the Appellants. The case of P.N. UDOH TRADING CO. LTD V ABERE (2011) 11 N.W.L.R (Pt. 723) P. 114 at P.146 Paras. B – C per Ogwuegbu. J.S.C was cited in support. We were therefore urged to resolve issue 1 in favour of the Respondents.

Now, the law is that, in civil cases, the ultimate burden of establishing a case is as disclosed in the pleadings. The burden is therefore on the person who would fail, if upon completion of pleadings no evidence is led thereon on either side. In other words, the general or legal burden of proof is upon the party, whether plaintiff or defendant who asserts the affirmative of the issue. The legal burden is therefore fixed by the pleadings and settled as a question of law, and remains unchanged throughout the trial exactly where the pleadings place it. It never shifts in anyway whatsoever. In this sense, the burden of proof in a civil action or claim rests upon the party who would fail of no evidence at all were given on either side. It is thus fixed by the pleadings before evidence is gone into upon the party against whom the judgment of the court or Tribunal would go, if no further, evidence were adduced. The burden of proof is therefore generally fixed on the plaintiff who seeks the relief to prove his claim that he is in law and in fact entitled to the relief(s) claimed. Thus, if he fails to lead evidence in proof, the court must find against him by holding that he has failed to prove his case on the standard required by law. See MADUMMA V JAMBO (2001) 15 N.W.L.R (Pt.736) P. 461 at P.475: JACK V WHYTE (2001) 6 N.W.L.R (Pt. 709) P. 226 at P. 272: OKENE V ORIANWO (1998) 9 N.W.L.R (Pt. 566) P. 408 at P.440 and NIGERIAN MARITIME SERVICES V ONISESIN (1998) 2 N.W.L.R (pt.538) p. 446.
In the instant case, the claim of the respondents as contained in the Amended Statement of Claim at pages 110 – 112 of the Record consists of three reliefs. These are; declaration of title to land, trespass and injunction. The relevant paragraphs of the Amended Statement of Claim are paragraphs 18 (a) and (b) thereof. For a clearer understanding of the Respondents’ claim, I shall even at the risk of repetition reproduce those paragraphs here. They state as follows:
18 plaintiffs hence claim against the defendant as follows:-

(a)     A declaration that by the judgment of the Ekiti South Grade 1 Customary Court, Ikere-Ekiti in Suit No: IC/346/89; CHIEF DAVID POPOOLA vs. CHIEF S.B. FAGBUAGUN delivered on 6th July, 1990 and affirmed by the High Court, Ikere-Ekiti in Suit No: HCR/11A/1990 on 18th February 1991, the defendant is estopped from laying any claim of ownership and from carrying out any act of trespass by way of leasing or cultivating or constructing a road or erecting any structure or doing anything to any portion of the land situate, lying and being at Igbolo-Ekiri (sic) farmland along Ise Road, Ikere-Ekiti.

(b)     A declaration that ail that parcel of rand situate, lying and being at Igbolo-Ekiri farmland along Ise Road, Ikere-Ekiti belongs exclusively to the Sapetu Ibariba farmland of Okekere Quarters, Ikere-Ekiti and the said family is entitled to customary right of occupancy in respect of same.

It is clear therefore that by the above stated Paragraphs of the Amended Statement of a claim, the Respondents’ first claim is for a Declaration of title to the land lying, situate and being at Igbolo-Ekiri farmland along Ise Road, Ikere-Ekiti.

It is the law that a declaratory order or relief is an independent and separate cause of action on its own. The jurisdiction of the court to make such an order or declaration is therefore not restricted to cases where a plaintiff has a complete and subsisting cause of action. It is usually employed, especially in land cases, where the plaintiff conceives he has a right over land which the court may protect. All a person seeking a declaratory relief in such cases is required to show is the existence of a legal right and which right is contested. See DANTATA v MOHAMMED (2000) 7 N.W.L.R (pt. 664) p. 176 at p. 196 and ADIGUN & ORS v A.G: OYO STATE & ORS (1987) 1 N.W.L.R (pt. 53) P. 678 Pt P.702. Where such declaratory reliefs are sought, the powers of the court to grant them are very wide indeed and only limited by the Court’s own discretion. That being so, a court may grant a declaration where no consequential relief is sought or claimed. The relief may therefore be granted where the Court in considering the entire circumstances of the case, is of the opinion that the party seeking exercise it is fully entitled to the of the court’s jurisdiction. See IRAGUNIMA & ANOR V UCHENDU & ANOR (1996) 2 N.W.L.R (Pt.420) p. 30 at p. 53; ELENDU V EKWOABU & 5 ORS (1995) 3 N.W.L.R (Pt. 386) P.704 at P.704 at P. 749 and EKWUNO V IFEJIKA (1960) S.C.N.L.R, P. 320

Based on the law on the burden and standard of proof, a party claiming a declaratory relief has the burden under Sections 135, 136 and 137 of the Evidence Act to prove his own case. That being so, where a party claims for a declaratory relief or right, it behoves on him to satisfy the court by the evidence adduced by him, that he is entitled to the declaration, and not by admission in the pleading of the defendant. This is because; the grant or refusal to grant such a declaratory relief is at the discretion of the Court. In other words, where a party seeks a declaratory judgment, the onus is on him to succeed on the strength of his own case and not the weakness of the case for the defendant. Therefore, a defendant who has not counter-claimed has only the duty to defend and accordingly, a consideration of the defendant’s case and its weakness does not arise until the plaintiff has led evidence showing prima facie that he is entitled to the land in dispute. However, where the fact or facts in the defendants’ case support the plaintiff’s case, the latter can rely on that aspect of defendant’s case that support his case to establish and prove his case. See KODINLINYE V ODU (1935) 2 W.A.C.A, P. 336 at P. 337: ODOFIN V AYOOLA (1984) 11 S.C, P. 72: BELLO V EMEKA (1981) 1 S.C. P. 101 and AKINTOLA V OLUWO (19620 1 S.CN.L.R. P. 352. See also WOLUCHEM V GUDI (1981) 5 S.C. P. 291: ADELAJA V FANOIKI (1990) 2 N.W.L.R (Pt. 131) P. 137; GANKON V UGOCHUKWU CHEMICAL INDUSTRIES LTD. (1993) 6 N.W.L.R (Pt. 297) P.55 and ALECHENDU V OSHOKE (2002) 9 N.W.L.R (Pt. 773) P. 521 at P. 535.

I had pointed out that the first claim of the Respondent as per paragraphs 18 (a) and (b) of the Amended Statement of Claim is for a declaration of title to land and that they are entitled to customary right of occupancy thereon. The relevant paragraph of the Amended Statement of Claim is paragraph 5. It is pleaded therein as follows:

5. The Sapetu Ibariba family of Okekere Quarters, Ikere-Ekiti a land holding family is seized of a large expanse of land situates at Igbolo-Ekiri farmland along Ise road, Ikere-Ekiti under native law and custom from time immemorial and the said family has been exercising various acts of ownership and possession thereon without any let or hindrance.

By the state of the above pleaded facts, the Respondents have in my view and as rightly pointed out by counsel pleaded title to the land through traditional history.

In an action for declaration of title to land, the plaintiff must plead and lead evidence as will entitle him to the said declaration and an admission by the defendant will not relieve him from the onus placed on him of proving his claim. In that case, the plaintiff must plead and lead credible evidence from his witnesses that will satisfy the Court that he is entitled to the declaration of title sought. In other words, the Court must be satisfied that the plaintiff owns the title he claims in the action as would entitle him to the declaration of title sought. See NWOKOLO V UKEGBU (1997) 4 N.W.L.R. (Pt. 500) P. 448 – 448; OKEDARA V ADEBARA (1994) 6 N.W.L.R (Pt.349) P. 157 and JIMBA V A.P. (NIG) LTD (1998) 13 N.W.L.R (Pt.581) P. 273 at P.284. That being so, in determining the issue, the trial court must start by considering the evidence led by the plaintiff, so as to see whether the plaintiff has led evidence which is satisfactory. If evidence adduced by the plaintiff is unsatisfactory, then he has not made out a prima facie case, in which case, the trial court does not have to consider the case of the defendant at all. See SANUSI V AMEYOGUN (1992) 4 N.W.L.R (Pt. 237) P. 527 at P. 547: DURU V NWOSU (1989) 4 N.W.L.R (Pt. 113) P. 24: OYEFESO V COKER (1999) 1 N.W.L.R (Pt.588) P. 654 at P. 660 and AGU V NNADI (1999) 2 N.W.L.R (Pt.589) P.131 at P. 142. The burden of leading such evidence is discharged on preponderance of evidence or balance of probabilities. See ARASE V ARASE (1981) 5 S.C, P.33; BROADLINE ENT. LTD V MONTEREY MARITIME CORP. (1995) 9 N.WL.R (Pt. 917) P.1 and IKWUJE V ALENU (2001) 13 W.R.N. P.43 at P. 50. See also MOGAJI V ODOFIN (1978) 4 S.C, P.91 at P.93, However, where no issue is joined in the claim, the onus is discharged on a minimal of proof. see FASEUN v PHARCO (NIG.) LTD (1965) 2 ALL N.L.R. P. 216 at P. 220 and AKAOSE V NWOSU (1997) 1 N.W.L.R (Pt. 482) P. 478 at pp. 493 and 501.

The plaintiff may discharge this burden by leading credible evidence in order to prove his title to the land he claims in any of the following ways:

(a)     Proof by traditional evidence:

(b)     Proof by production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody.

(c)     Proofs of acts of ownership in land over the land in dispute such as selling, leasing, making a grant, renting out all or any part of the land or farming on it or portion thereof, extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such proprietary acts are the true owners of the land;

(d)     Proof of acts of possession and enjoyment of the land which prima facie may be evidence of ownership, not only of the particular piece of land with reference to which such acts are done, but also of other land so situated or connected therewith by Locality or similarity that the presumption under Section 46 of the Evidence Act applies and the inference can be drawn that what is true of the piece of land is likely to be true of other pieces of land; and

(e)     Proof of possession of connected or adjacent land in circumstances rendering it probable that the owners of such connected or adjacent land would in addition be the owners of the land in dispute.

In the instant case, the Respondents predicated their claim of title to the land on traditional evidence and acts of ownership. Indeed, they are entitled to do so, as a party may anchor his claim of title to land on one or more of the above stated modes of proving title. See AJIBULU V AJAYI (2004) 11 N.W.L.R (Pt. 885) P. 458: OYEDOKE V THE REG. TRUSIEES OF C.A.C (2001) 3 N.W.L.F (Pt. 701) P. 621 and AKUSOBI V OBINECHIE (2004) 2 N.W.L.R (Pt.857) P. 355.

I now begin by a consideration of the Respondents’ Claim based on traditional evidence. The relevant pleading in respect thereof had earlier on been reproduced by me. I only need to add that the Respondents further pleaded at paragraph 6 of the Amended Statement of Claim that their family originated from Ila-Orangun and settled at Okekere Quarters, Ikere-Ekiti. By that pleading, I am of the view that they claim the land through settlement from time immemorial. They have therefore claimed ownership of the land through traditional history or evidence.

As pointed out earlier, before a Court can grant a declaratory relief over a piece of land, the plaintiff must plead and lead evidence as to entitle him to the declaration sought. This he must do by credible evidence led by him and his witnesses that he is entitled to the declaration. This is because, where a party makes a claim for declaration of title to land, he must succeed on the strength of the evidence adduced by him and not on the weakness of the defendant’s case. It would not then be granted on admission by his adversary, where he fails to adduce credible evidence as would move the Court to exercise its discretion in his favour. See BELLO V EWEKA (1981) 1 S.C. P.1 at P.107, A.G; FEDERATION V AJAYI (2000) 12 N.W.L.R (Pt. 682) P. 509 at P. 527: MAJA V SAMONRIS (2002) 7 N.W.L.R (Pt. 765) P. 78 at P. 101: ORJI V EMOVO (1991) 1 N.W.L.R (Pt. 168) P. 476 at PP. 487 – 488; ONU V AGU (1996) 5 N.W.L.R. (PT. 451) P. 652 at P. 670 and EZEOKONKWO V OKEKE (2002) 10 N.W.L.R (Pt.777) P. 1 at P.29.
Now, in an action for declaration of title to land, the first duty of a claimant is to show the exact and precise identity of the land on which he hinges his claim. This is because a declaration can only be granted over a piece or parcel of land which can be precisely defined and therefore indentifiable. In other words, a plaintiff who claims for declaration of title over a piece or parcel of land must prove clearly by credible evidence the area of land to which his claim relates and the boundaries thereof. See HENSHAW V EFFANGA (2009) 11 N.W.L.R (PT. 1151) P. 65; EKPEMUPOLO V EDREMODA (2009) 8 N.W.L.R (Pt. 1142) P. 166; UKAEGBU V NWOLOLO (2009) 3 N.W.L.R (Pt. 1127) p. 194; UDECHUKWU V EZEMUO (2009) 14 N.W.L.R (Pt. 1162) P. 525. The necessity of the claimant to read evidence on the identity of the land will arise or become an issue at the trial, if and only if, the defendant has made it so in his statement of defence. Where therefore the identity of the land is not disputed in the defendant’s pleadings, and the land is known to all the parties to the dispute, it will not be necessary to have a survey plan of the land or lead evidence as to the identity of the land in dispute. See NWANKWO V OFOMATA (2009) 11 N.W.L.R. (Pt. 1153) P. 496; EKPEMUPOLO V EDREMODA (Supra) at P. 195; and ANYANWU V UZOWUAKA (2009) 3 N.W.L.R. (Pt. 1159) P. 445;

In the instant case, the Respondents pleaded at paragraphs 7, 8, and 9 of the Amended Statement of claim that

7. The land in dispute being part of the vast area of land belonging to the plaintiffs’ family is situate, lying and being at Igbolo-Ekiri farmland, along Ise road, Ikere-Ekiti and bounded as follows:

(a)     On one side by Aruku Stream.

(b)     On the second side Alawe family farmland,

(c)     On the third and fourth sides by River Ogbese

The Alawe family land is between the plaintiffs’ and defendants’ families farmlands.

8. The identity of the farmland in dispute is well known to the parties as the farmland in dispute was a subject matter of a dispute between the parties in suit No: IC/346/89 before Ekiti South Grade 1 Customary Court, Ikere-Ekiti sometimes in 1989.
9. The defendant’s family sued plaintiff family at the aforesaid Customary Court ownership of the farmland in dispute.

The Respondents went on to plead at paragraphs 10, 11, 12 and 13 of the Amended Statement of Claim that judgment was given by the said Customary Court in favour of the plaintiffs’ family and that the judgment of the said Customary Court was affirmed on appeal to the High Court sitting at Ikere-Ekiti. The two judgments were therefore pleaded.

To the above stated pleadings of the Respondents, the Appellants pleaded at paragraphs 5, 6, and 7 of their Amended Statement of Defence as follows:

(5)     The defendant avers that one of his family farmlands is situates, being and lying at Ajegbende-Ugbolo along Ikere, Ise Road and only share boundaries with Alawe farmland, Elemoita farmland, Ekiri farmland and River Ogbese.

(6)     Defendant denies sharing any boundary with any Sapetu Ibariba family or farmland.

(7)     The defendant states that between his family and that of the plaintiff lies and situates the Alawe family land as stated in paragraph 8 of the plaintiffs’ statement of claim.

An Amended Reply to the Amended Statement of Defence was filed by the Respondents pleaded in paragraphs 5, 6, and 7 of the Amended Reply as follows:

5. Plaintiffs deny paragraph 5 of the Amended Statement of defence and state that the defendant’s family land does not extend to where the plaintiff family land is located.
6. In further response to paragraph 5 of the Amended Statement of defence of the defendant, the plaintiffs aver that Aruku stream is the boundary between Alawe family and their family land.
7. Plaintiffs aver that they do not share boundary with the defendant.

With all the above stated pleadings of the Respondents and the Appellants, my understanding is that the parties were not ad idem as to the land in dispute. While the Respondents described their land in paragraph 7 of the Amended Statement of Claim as being part of a vast area of land lying, situate and being at Igbolo-Ekiri and is bounded by Aruku stream on one side, Arawe family farmland and River Ogbese on the second, third and fourth sides respectively and that the Alawe family farmland is between their land and that of the Appellants, the Appellants averred that their land lies at Ajegbende Ugbolo and only shares boundary with Alawe farmland and River Ogbese. They denied sharing any boundary with the Respondents. Indeed, the Respondents seem to agree with the Appellants when they pleaded in paragraphs 5, 6, and 7 of the Amended Reply to the Amended Statement of Claim, that the Appellants’ farmland does not extend to theirs and that they do not share any boundary with the plaintiffs.

The witnesses called by both parties support the above averments’ P.W.1 who is from the Alawe family testified that Aruku Stream is the boundary between the Alawe family land and that of the Respondents, and that the Alawe family land lies between that of the Appellants and the Respondents. The p.W.3 who is a member of the Respondents’ family stated that, the land claimed by the Respondents is at Igbolo Ekiri farmland, Ikere-Ekiti and is bounded by Agbo-Ile Alare, Omi Aruku and River Ogbese on two sides and that the Alawe family land is between the Appellants’ family land and that of the Respondents. Similarly, D.W.1 stated that the Appellants share common boundary with Alawe and Elemoita families and that it is called Ugbolo Ejimo and not Ugbolo Ekiri. He also stated that Omi Aruku (Aruku Stream) is not the boundary of the land. The D.W.2 stated that he is from Elemoita family of Ikere-Ekiti and that the Elemoita family land shares boundary with Ejimo (Appellants) family land. He described the Sapetu Ibariba family land (Respondents) as next to Alawe, and from Alawe family land is Ejimo land and then Elemoita land. That the Appellants’ land is called Ajegbende.

From the analysis of the pleadings of the parties and the testimony of the witnesses, it is clear to me that the Respondents’ family land is separate from that of the Appellants, as the Alawe family land lies in between the two. In the circumstances, I hold that no issues were joined by the Appellants with the Respondents in respect of the land in dispute which lies at Igbolo-Ekiri farmland along Ise road, Ikere-Ekiti. In other words, it is clear from the state of the Amended Statement of Defence that the Appellants’ defence was on a farmland different from that claimed by the Respondents. The pleadings and evidence led at the trial from both sides manifestly show that the Appellants’ defence was tailored on their own land called Ugbolo-Ejimo lying at Ajegbende Ugbolo. They did not therefore by the state of their pleadings join issue with the Respondents’ claim of declaration of title to the land lying, situate and being at Igbolo-Ekiri. Furthermore, the Appellants did not deny the pleading of the Respondents that they had a Court case over the land and therefore the land is known to both parties.

The learned trial judge however held at page 49 of the judgment (P.211 of the Record) that it is manifest from the pieces of evidence given by the Appellants’ witnesses that the Respondents’ land is separated from that of the Appellants by the Alawe family land and that the Appellants’ family land demarcated by Peregun trees while the Alawe family land is separated from that of the Respondents by Aruku Stream. He also found at page 50 of the judgment (page 212 of the record) that, the Appellant admitted by paragraph 7 of Amended Statement of Defence that between the Appellants’ family land and that of the Respondents lie or situates the Alawe family land and therefore admitted or acknowledge the existence of the respondent and their land. The learned trial judge then held at page 54 of the judgment (page 216) of the record as follows:
“I repeat for the avoidance of doubt that the land for which the plaintiff are claiming damages is at Igbolo-Ekiti land and not any other land certainly not the defendant land at Utaro which falls beyond Alawe farmland. That means that the land is some distance to plaintiff’s farmland. By the evidence of D.W.1 the land they are basing their defence on fall between the Alawe farmland and that of Elemoita. For sure the defendants had made it plain in the statement of defense in paragraph 6 therein that he does not share boundary with the plaintiffs. The defendant also pleaded in paragraph 7 that between his hand and that the plaintiff lays the land Alawe.”

He later found that the D.W.2 cleared any doubt on the identity of the land when he stated categorically that the land they are fighting over is between Alawe and Elemoita. The learned trial then found that the land mentioned by D.W.2 is the land of the Appellant, but that it is not the land in dispute. He found that the land in dispute is beyond any argument the land at Igolo-Ekiti and that there is no contest between the Appellant and the Respondent on the land in dispute the actual subject of this suit. That based on the pleading and evidence before Court, it is manifest that not only is it that the parties themselves knew the identity of the land in dispute, but both the Alawe and Elemoita families who are boundary neighbors know the land in dispute. He then held as follows in page 59 of the judgment (page 221 of the record);

“I hold that the plaintiff has proved the identity of the land more so as the land in dispute is known to the parties in this suit and all the other families who have in that area and share boundaries with the disputants”

As held earlier by me, it is very clear in the pleadings of the parties and the evidence led by them that the land is known to the parties to the dispute. Their boundary neighbours from the Alawe and Elemoita families also testified that they know the land claimed by the Respondents and that the land lies beyond Alawe land which separates it from the land of the Appellants. It is also clear that the Appellants have their own land in the area and which land is apart from that of the Respondents, with the Alawe family land separating them. A careful consideration of the Appellants’ statement of Defence and the evidence led thereon, show clearly that they base their defence not on the rand claimed by the Respondents but on their own land bordering the Alawe family land and the Elemoita family land and therefore distinct ‘from the land claimed by the Respondent. The land claimed by the Respondents have been identified by the pleadings and the testimony of the witnesses to be that lying, situate and being at ugbolo-Ekiri along Ise Road, Ikere-Ekiti and bordered by the Alawe family land Aruku stream and River Ogbese. It is also not in doubt that the identity of the land is not in dispute but the Appellants chose to anchor their defence on their own land which is obviously not the land in dispute in this case. The finding of the learned trial judge that the identity of the land was not contested is well founded. The Appellants did not in the circumstances challenge or dispute the identity of the land claimed by the Respondents. See ANYANWU V UZOWUAKA (supra) at PP. 475 – 476 Paras. D – D. In that respect, I hereby hold that the identity of the land in dispute had been established by the pleadings of the Respondents and the evidence led by them at the trial.

I now proceed to consider whether the Respondents have been able to prove that they are entitled to a declaration of title to the land from the evidence on the record. I had earlier stated the law that, in a claim for declaration of title to land, the plaintiff must adduce concrete and cogent evidence which must satisfy the court that he is entitled to the declaration sought. He must do this on the strength of the evidence adduced by him and his witnesses and not on the weakness of the defence unless such weakness supports his case. In that case, he can take advantage of that weakness in the defendant’s case to prove his case. In other words, in a case of declaration of title to land, the burden of proof rests squarely on the plaintiff, and where he fails to discharge that burden, the Court will dismiss his claim. See NWOKAFOR V NWANKWO UDEGBE & ORS (1963) ALL N.L.R. P.104: EDOSOMWAN V OGBEYFUN (1996) 4 N.W.L.R (Pt. 442) P. 266 at P. 278; ALHAJI RAJI & ORS V GBADEBO COKER & ORS (1981) 5 S.C. P. 197 and ONYERO V NWADIKE (1996) 9 N.W.L.R. P. 231 at PP. 240 – 241.
In a claim for declaration of title to land based on traditional history, the plaintiff must plead and lead evidence as to the root of his title to the land. He must also plead and prove the names and history of his ancestors. He also has a duty to plead and trace the genealogy of his ancestors from the original owner and show how his predecessors acquired title to the land in dispute. In other words the line of succession from the original owner to the present claimant must be traced without leaving any gaps or creating phantom linkages or allowing the linkage to breakdown. It is therefore not enough for the plaintiff to merely plead that he and his predecessors-in-title had owned and possessed the land from time immemorial. To succeed, the plaintiff must plead and prove facts as to:

(a)     Who founded the land?

(b)     How the land was founded; and

(c)     Particulars of the intervening owners through whom he claims.

See IROAGBARA V UFOMADU (2009) 11 N.W.L.R (Pt.1153) P. 587 SALAWU (2003) 13 N.W.L.R (Pt. 838) P.637 at pp.650 651: DURUOSIHIMIRI V DURUODUNZE (2001) 9 N.W.L.R (Pt. 717) P. 244: NNABUIFE v NWIGWU(2001) 9 N.W.L.R (pt.719) p.710 at p. 726 and AJIBULU V AJAYI (2004) 11 N.W.L.R (Pt.885) P. 458 at PP.473 – 474. In the instant case, the Respondents as plaintiffs at the lower court merely pleaded in paragraph 5 of the Amended Statement of Claim that, their family is a land holding family and is seised of a large expanse of land situate at Igbolo-Ekiri farmland along Ise road, Ikere-Ekiti under native law and custom from time immemorial and has been exercising acts of ownership and possession thereon without any let or hindrance. They then pleaded at paragraph 6 that the plaintiffs’ (Respondents’) family originated form Ila-Orangun and settled at Okekere Quarters, Ikere-Ekiti long time ago.
By the state of the above mentioned pleadings, the Respondents had the duty to go further to plead how their ancestors acquired the land, such as whether it was through conquest, alienation, or whether the land was virgin land. They also had to plead who their ancestors were or was, and how they or he founded the land. The history of how the land devolved to the present occupants also had to be pleaded without any gaps, phantom linkages or breakdown. This they failed to do and the evidence adduced by them did not help them in anyway, as there was no shred of evidence on the traditional history of how they acquired the land in dispute.

I however find on the record that, the learned trial judge relied on Exhibits “A” and “B” which are the judgments of the Customary Court Grade 1, Ikere-Ekiti and the Appeal thereon, by the High Court of Ekiti State sitting at Ikere-Ekiti, in resolving the issue of the traditional history of the land in dispute. The learned trial judge held at page 50 of the judgment (page 212) of the record as follows:
“In judgment Exhibit ‘A’, the plaintiff’s family who was defendant at the Customary Court gave very consistent evidence on ownership of the land in dispute, which is located at Igbolo-Ekiri, the subject matter of the present suit, and the Customary Court held that the Ejimo family proved nothing.

From the foregoing facts adduced in evidence both in this Court and as can be gleaned in the judgment at the Customary Court in exhibit “A”, the plaintiffs’ Sapetu family established that the plaintiffs’ family was the first to settle at Okekere and that at a point in history, the Ejimo family was the plaintiffs’ tenant.

This is a fact that was never denied”.

He therefore found as proved before him that upon balance of probabilities the plaintiffs had proved that they had occupied the land in dispute from time immemorial. He then held at page 55 of the judgment (page 217 of the record) that:

”In fact, the historical evidence adduced by the plaintiffs in Exhibit A was not controverted by the defendant and the only conclusion that this Court can reach is that the plaintiffs also proved that by their undisputed historical evidence they had owned the land from time immemorial”.

Learned counsel for the Appellant had contended that, there is in the pleadings and evidence of the Respondents a total absence of facts about the traditional history of the land in dispute in that, there is no pleading about the persons who have held title to the land or on whom title has devolved in respect of the land since it was founded before the present Respondents acquired control of the land. He then challenged the reliance by the learned trial judge on exhibits A and B in the resolution of the issue of ownership or title to the land in dispute. Upon a careful perusal and sober reflection on the arguments of counsel, I am of the view that this issue can only be settled after issue No.2 is resolved. I shall now resolve issue No.2 which will open the gate for me to finally resolve issue No.1.
The issue No.2 therefore is:

Whether the Trial Court was right in relying on exhibits A and B which are previous decisions of Court on unrelated subject between the Defendant/Appellant and Plaintiffs/Respondents.

In arguing this, learned counsel for the Appellant referred to paragraph 10, 11, 12 and 13 of the Respondent Amended Statement of Claim and submitted that regardless of the provisions of Section 52 of the Evidence Act, the lower Court not only held that Exhibit “A” and “B” are relevant and that they constitute evidence in respondents case, learned counsel quoted the learned trial judge at page 206 of the record to further submit that the learned trial judge was never requested to set aside Exhibit A and B, and that the learned trial judge by his holding at page 206 of the record, not only misunderstood the position of the law, but also misunderstood the case pleaded and the evidence led before him and therefore reached a wrong conclusion. He then referred to the Appellant claim at page 1 of Exhibit A and contended that the judgment of the Customary Court was fought on trespass, while the claim of the Respondent the subject of this appeal, and is in respect of ownership. That the Respondent’s pleading and evidence is premised on ownership title as opposed to trespass upon which Exhibit A was fought.

It is the further submission of learned counsel for the Appellant that, it is trite law that evidence led must answer or be in tandem with facts pleaded, lest such evidence is evidence ex nihilo (out of nothing). Those parties are bound by their pleadings from which they cannot depart. The case of OJIOGU V OJIOGU (2010) 9 N.W.L.R. (Pt. 1198) P. 1 at P. 28 was cited in support. It was therefore submitted by learned Appellant’s counsel that, properly construed, section 52 of the Evidence Act render previous proceeding irrelevant in subsequent proceeding except where such proceeding is tendered in support of a plea of estoppels in rem judicatam; as a facts in issue or to discredit a witness. The cases of OLUJINLE V ADEAGO (1988) 2 N.W.L.R. (Pt. 75) P. 238; ADEKUNLE V ADEGOROYE (1992) 2 N.W.L.R (Pt. 223) P. 305 and ALADE V ABORISHADE (1960) S.C.N.L.R, p. 398 were cited in support. That the position is as espoused by Muktar, J.C.A (as he then was) in AKINRINMADE V. LAWAL (1996) 2 N.W.L.R. (Pt. 218 at P. 226. He then submitted that, exhibits A and B which formed the fulcrum of the Lower court’s findings fall within the category of documents which the trial court ought not to place reliance. That the cause of action considered therein was an action in trespass which is diametrically different from a cause of action founded on ownership title.

Learned counsel also contended that assuming (which he does not concede), that exhibits A and B do not fall into the category classified as irrelevant under Section 52 of the Evidence Act. Section 51 of the Evidence Act prohibits the trial court from taking them as conclusive proof of their contents. He cited in support the case of K.S.U.D.B V FANZ LTD (1986) 5 N.W.L.R (pt. 39) p.74 P. 94 paragraph H. It is therefore his view that, it was wrong for the trial court to place heavy reliance on the contents of Exhibit A to give legal support and conclusive proof of ownership title to the weak and unreliable evidence of the Respondents. He accordingly urged us to resolve this issue in favour of the Appellants.

In response, learned counsel for the Respondents submitted that contrary to the arguments of the Appellants, exhibits A and B are relevant and the learned trial judge was right to have evaluated same in the course of his judgment. He then adopted his arguments in paragraphs 4.58 to 4.66 of the Respondents’ Brief of Argument. He went on to submit that Exhibit A is a Certified True Copy of the record of proceedings and was specifically pleaded in paragraphs 11 and 13 of the Respondents’ Amended Statement of Claim. The same with Exhibit B. That the Appellant did not deny both in their pleadings and evidence before the trial court that the parties litigated upon the land in dispute and that both exhibits A and B were properly tendered and admitted in the course of trial without objection from the Appellants. That a careful reading of Exhibit A reveals that ownership of the land in dispute was in issue. He then submitted that Exhibits A and B are relevant to this case because relevant facts were pleaded in the Amended statement of claim to make same admissible and relevant.
Learned counsel for the Respondent further submitted that, documents are placed before the Court for the purpose of examination and evaluation and not for the fun of it. That it is therefore the duty of the Court to ensure that such documents are considered in the interest of justice. He then cited the case of TANGALE TRADITIONAL COUNCIL V FAWU (2001) 17 N.W.L.R. (Pt. 742) P. 293 at P. 330 Para. B – C, to submit that, in the instant case, the trial judge did not go beyond what was expected of him in evaluating the evidence before him. That Exhibits A and B are therefore relevant and that Sections 51 and 52 of the Evidence Act are not applicable to the present case. That in any case, the trial court did not base his decision exclusively on Exhibits A and B, but on other facts and oral evidence placed before him. We were then urged to resolve this issue in favour of the Respondents.

To situate the position of the learned counsel for the Appellants, I find it valuable to consider the submission of learned counsel for the Appellant at the tower court and the findings of the said Court thereon. Learned counsel had submitted in his Written Address at the lower court in page 152 thereof that:
“Submits further that the plaintiffs claim that the judgment in suit IC/346/89 and HCR/11A/1990 tendered as B respectively do not relate to the ownership dispute. Neither do they declare any right to the form whatsoever.
They are not relevant to the plaintiff’s claim of ownership of the disputed land.
My lord is urged to discountenance same and refuse relief (a) contained in paragraph 18 of the statement of claim and consequently dismiss same”.

It is on this submission of learned counsel for the Appellant that the learned trial judge pronounced upon in page 206 of the record. At the pain of repetition I reproduce the finding of the learned trial judge here:

“In the hearing of the instant case, none of the exhibits was impeached. There is therefore no basis of requesting that either of the two judgments be discountenanced.

The ground upon which a Court of coordinate jurisdiction or a Court that entered a judgment or made on order can set it aside is if the judgment is a nullity, that is if it is tainted by fraud or misrepresentation. None of these was alleged to have happened. And in the absence of facts of fraud and or misrepresentation laid before me, I refuse to discountenance the judgment in Exhibit A. Rather than do that, I hold that these two documents which were pleaded and tendered in evidence form effectively part of plaintiffs’ evidence in support of his (sic) case”.

A plain reading of the submission of learned counsel before the trial court show clearly that he was not asking the trial court to set aside or nullify exhibits A and B. His contention was that the said Exhibits did not relate to or determined the ownership of the land in dispute and therefore not relevant to the determination of the ownership title in this case. The trial court was therefore urged not to consider same in the determination of the Respondents’ claim of declaration of title or ownership of the land in dispute. Surely this cannot be understood to mean urging the trial court to set aside or annul those judgments. I believe the learned trial judge understands what counsel means when he urges a Court to “discountenance” an issue, document or argument. It simply means the court should not give those documents any probative value in the resolution of the issues to which they relate. I therefore agree with learned counsel for the Appellant and do hold that the decision of the learned trial judge in his submission was misunderstood. The learned trial judge did not properly consider the submission of learned counsel for the Appellant considering his comments in page zo7 of the record, which he termed preliminary expressions of views on exhibits A and B. He however held that the said judgments can support the case of the plaintiffs/Respondents since they were pleaded. That is after expressing doubt as to whether exhibit A can act as estoppel in this case in view of the nature of the case before the customary court and the judgment entered in the case.

Now, I am of the view that this issue can be resolved by a consideration of the purpose for which exhibits A and B were tendered in evidence. This can be arrived at by perusing the pleading of the Respondents thereon. The pleadings covering those documents are paragraphs g, 10, 11, 12 and 13 of the Amended statement of claim. Therein the Respondents aver that there was a dispute over the land claimed by them in this case between them and the Appellants before the Ekiti south Grade 1 customary court, Ikere-Ekiti, sometimes in 1989. That in that case, it was the Appellants that sued the Respondents claiming ownership and that judgment was given in favour of the Respondents. The Appellants appealed to the High court but the Appeal was dismissed. The judgments thereon were pleaded and subsequently admitted in evidence as exhibits ‘A’ and ‘B’ respectively. It is obvious therefore, in my view, that the two judgments were pleaded and tendered in evidence by the Respondents to show that ownership of the title to the land in dispute between them and the Appellants had been determined. Paragraph 18 (a) which is the relief sought thereon further clarifies the issue. By the state of the Respondents pleadings stated above, therefore, I am of the view that those judgments were pleaded by the Respondents to set up a plea of estoppel per rem judicatam.

I pause here to state that, I am in total agreement with learned counsel for the Appellants that Exhibits A and B are not relevant to this proceedings by virtue of Section 51 of the Evidence Act. Section 51 of the Evidence Act only makes judgments which do not come under Section 50 of the Act, relevant only if they relate to matters of public interest. Such judgments which are relevant under the said Section 51 are however not conclusive proof of that which they state. Moreover, exhibits A and B do not relate to matters of public interest. I do not however agree with learned counsel that those judgments are irrelevant by virtue of Section 52 of the Evidence. Those judgments are relevant under Section 52 of the Evidence Act if their existence is a fact in issue or if other provision of Evidence Act or any other statute makes them relevant. Those judgments not also fall under the category of judgments coming under Sections 49, 50 or 51 of the Evidence Act. Accordingly, they will be relevant by virtue of Section 52 of the Evidence Act if any other provision of the Act makes them relevant or where their existence is in issue. An overall view of the Evidence has shown to me that such judgments are relevant under Section 54 of the Evidence Act if the conditions in the said Section are met.

I had pointed out earlier in this judgment that by their pleadings at paragraphs 9, 10, 11, 12 and 13 of the Amended Statement of Claim, the Respondents have raised the issue of estoppel per rem iudicatam. It should be pointed out that the Respondents were plaintiffs at the lower court. The general principle of law is that, it is anomalous for a plaintiff who has invoked the jurisdiction of a Court to attack the jurisdiction of the Court by setting up a plea of res judicata in his statement of claim. This is because a plea of res judicata prohibits the Court from enquiring into a matter which had already been adjudicated upon to finality by a Court of competent jurisdiction in an earlier suit between the same parties or their privies in respect of the same subject matter. A plea of res judicata therefore ousts the jurisdiction of the court. It has therefore been the general position of the courts that the plea of res judicata is not available to a plaintiff as a basis of his claim except by way of a reply to a defence raised the defendant in a statement of defence. The plaintiff who has invoked the jurisdiction of the court cannot be seen to be raising an issue that will have the effect of ousting the jurisdiction of the Court to entertain the action he has brought before the court. The plea of res judicata normally operates as a shield rather than a sword. Though a plaintiff may not use a previous judgment as a plea of res judicata as a basis for his claim, he may use same to strengthen his case as an act of possession and ownership. See BASSEY v EKANEM (2001) 1 N.W.L.R (Pt. 694) P. 364 at P. 372 and AKOMA V OSENWOKWU (2004) 11 N.W.L.R (Pt. 883) p. 98. Thus, the Supreme Court held in the case of UKAEGBU V UGOJI (1991) 6 N.W.L.R (P. 196) P. 127 at P. 145 Paragraph H per Babalakin; J.S.C. as follows:

“I however wish comment on Yoye’s case to the effect that res judicata has no place in a statement of claim. I agree with this statement and the simple reason is that if indeed a plaintiff had got a firm judgment which pleading of res judicata connotes he does not need to go to court to get another judgment again. He should retain that judgment and use it as a shield if any party to that judgment sues him on the same piece of parcel of land on a subject matter to which judgment relates. You do not go to Court to sue again on a land or over a subject matter on which you had already got a subsisting judgment. Therefore to say that the jurisdiction of the Court is ousted in that context is correct”.

It is therefore clear from the decision of the Supreme Court cited above that, the Respondents could not set up a plea of res judicata based on the judgment(s) admitted in evidence as exhibits A and B. In any case, since the judgment is in evidence and on the record, I have perused same. In that judgment, the Appellants were plaintiffs at the customary court. Their claim before that court was for damages for trespass. The Appellants as plaintiffs in that case did not succeed because as found by the Customary Court, they could not establish the identity of the land in dispute. No title to the land was declared to any of the parties in that case. That being so, I am of the view, that the pleading of the Respondents in paragraph 10 of the Amended Statement of Claim that the Appellants’ claim in Exhibit A was for ownership of the land in dispute is not supported by the said exhibit A. The claim therein was for trespass. That judgment cannot support a plea of res judicata. In any case, I had held that the Respondents as plaintiffs could not in law set up a plea of res judicata.
I have however found from the authorities that a plaintiff may plead and rely on evidence given by a party in a previous proceeding as estoppels simpliciter. In other words, a plaintiff may plead a previous judgment not as res judicata but as evidence to show that the defendants had sued the plaintiff previously in respect of the subject matter but failed. Thus Babalakin, J.S.C in UKEGBU V UGOJI (Supra) put it succinctly at page 146 paragraph A as follows:

“On the other hand pleading of estoppel connotes that the plaintiff and his privies have been sued on the land by the defendant or his privies who failed to obtain judgment against the plaintiffs . . . and by that token plaintiffs cannot say that they have obtained judgment on the land. They still have to go to Court to confirm their ownership of the land concerned against those who sued them and failed. In taking an action to confirm his possession of the land against these set of people he can plead the previous judgment as estoppel for the Court to take same into consideration in determining his case which he has now brought to Court for adjudication”

I think that settles the issue in this case, as that is what transpired between the Appellants and the Respondents. Accordingly going by the tenor of the pleadings in paragraphs 9, 10, 11, 12 and 13 of the Amended Statement of Claim and the relief sought thereon at paragraph 18 (a) of the said Amended Statement of Claim, my understanding is that the previous judgments (exhibits A and B) can operate as an estoppel that the Appellants had previously sued the Respondents over the land but failed, so that the Court can take same into consideration in determining his case. See also AKOMA V OSENWOKWU (Supra) at P.113 Paras. C – H.

The issue now is whether the Court can utilise the evidence or testimony of the witnesses given in that case in determining the issues of fact in the instant case. A careful perusal of Exhibit A would show that no title to the land was determined therein. Similarly, the trial Customary Court did not determine as between the Appellants and the Respondents, who has established the root of his title. Though the Respondents witnesses gave evidence in exhibit A as to the ownership of the land in dispute, that issue was never determined by the Customary Court. Consequently, I am of the view that the lower court was wrong to have relied on the evidence of the traditional history of the land as claimed by the Respondent as given in Exhibit A. The Court could only have utilized the evidence of such witnesses if Section 34 (1) (a) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 had been complied with. By the said provision of the Evidence Act, evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent judicial proceedings, or in a later stage of the same judicial proceeding, the truth of the facts which it states; when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expenses which, in the circumstances of the case, the Court considers unreasonable. See CHIEF AMODU TIJANI DADA V MR. JACOB BANKOLE & ORS (2008) 3 M.J.S.C. P.1 and AKOMA V OSENWOKWU (Supra) at PP. 114 – 115.

From the above analysis, I am of the opinion that the learned trial judge was in error to have relied on the evidence of the witnesses in Exhibit A to find that the Respondents proved title or ownership of the land in dispute through evidence of traditional history. I had earlier on found that the Respondents did not satisfy the requirement of the law on their claim of title to the land in dispute through traditional history. It is true that the Appellants did not join issues with the Respondents on the particular land claimed by the Respondents. However, it is the law that declaratory reliefs are not granted in default of defence or even on admissions, without hearing evidence and the Court being satisfied by such evidence. See U.B.N LTD V JIMBA (2001) 12 N.W.L.R (Pt. 727) P. 505 at PP. 518 – 519: MAKANJUOLA V AJIORE (2001) 12 N.W.L.R (Pt. 527) P. 416 at PP. 437 – 438. I therefore hold that the Respondents failed to prove that they are entitled to a declaration of title to the land in dispute on the evidence of traditional history. See also NKWOCHA V OFURUM (2002) 5, N.W.L.R (Pt. 761) P.506 at PP. 524 – 525 and SALAHU & ORS V PARA-KOVI (2001) I N.W.L.R (Pt. 695) P. 446 at P. 456 Per Galadima, J.C.A (as he then was).

However, that is not the end of the matter, in view of the submission of learned counsel for the Respondents at page 26 paragraphs 4.68 and 4.69 of the Respondents’ Brief of Argument. Therein, learned counsel had contended that it is on the record that apart from pleading traditional history of their root of title to the land, the Respondents also pleaded and led evidence on acts of ownership of the land. That the learned trial judge agreed with his postulation where he held at page 208 of the record as follows:

“Though the plaintiffs alleged that they had held the land from time immemorial, under native law and custom, yet it does not appear to me that they solely depended in proof of their title on historical or traditional evidence.
It seems rather that their efforts to prove their title to the land included through some other methods. The reasons for taking this position shall son (sic) unfold as this judgment progresses.

And unless the plaintiffs are solely relying on traditional or historical evidence to prove their case, they need not willy-nilly plead the genealogical tree of their family”.

The learned trial judge then proceeded, though erroneously, to rely on the testimony of the witness that testified in Exhibit ‘A’ to find that the Plaintiffs/Respondents had proved title through traditional history and long possession. He further found at page 213 of the record as follows:

“By the same token they have proved acts of long possession of the land. There is uncontroverted evidence that the family gave part of the land on tenancy to the Egbiras, the Ilorins and the Fulanis. The Egbiras and the Ilorins are farming on the land while Fulanis are rearing cattles (sic) on the land. These tenants are paying Isakole on the land to the plaintiffs.

Specifically, the plaintiffs are farming on the land and they have planted on the land palm trees, (cocoa, though now dead) and have been exploiting the timbers on the land. What is more they have been receiving Isakole on the land.
By all these pieces of evidence, I am satisfied that the plaintiffs have successfully proved acts of ownership of the land”.

Based on the above cited statement of the learned trial judge, learned counsel for the Respondents contended that the Appellants did not appeal against the said findings of fact of the trial Court. Citing the case of P.N. UDOH TRADING CO. LTD V ABERE (2001) 11 N.W.L.R (Pt.723) P. 114 at P. 146 Paras. B – C per Ogwuegbu, J.S.C learned counsel submitted that the above stated finding of the trial court is binding on the Appellants.

I have however noted that the Appellant did not file any Reply Brief. If he had done so, he would have responded to this very pertinent point raised by counsel for the Respondents. It is the law that, where an Appellant fails to file a reply in response to any new point raised in a Respondent’s brief, he is deemed to have conceded to the respondent’s point or issue arising from the respondent’s brief. However, for that to happen, the point raised must be new in the sense that it was not argued by the Appellant in his brief of Argument. In the instant case, the Appellants did not respond to this issue raised by learned counsel for the Respondents.

To determine this issue therefore, I must consider if truly there was no appeal on the issue pointed out by the Respondent. This is because, the law is now clearly settled that , where a trial court makes a specific finding of fact and such finding of facts is not appealed against by any of the parties, such finding of fact shall be deemed admitted and undisputed. See IJALE V LEVENTIS CO. LTD (1959) S.C.N.L.R. P. 255; DABUP V. KOLO (1993) 9 N.W.L.R (Pt. 317) AT P. 269; ZEKERI V ALHASSAN (2002) 14 N.W.L.R. (Pt. 798) P. 52 at P. 73 Per Muntaka-Coomasie, J.C.A. (as he then was); OLANREWAJU V THE GOV: OYO STATE & ORS (1992) 11 – 12 S.C.N.J, P. 92: OBIOHA & ORS V CHIEF NWOFOR DURU & ORS (1994) S.C.N.J, P. 252 and KOYA V U.B.A LTD (1997) 1 N.W.L.R (pt. 481) P. 251 at P.266. Such finding is deemed correct. See OKWUJI V ISHOLA (1982) S.C, P. 314 at P. 349. It therefore means that, where a party fails to appeal against a specific finding of a trial court, and the legal conclusions thereon, he cannot be heard to complaint in respect of those findings.

Whether those findings of the trial court are wrong or right such a party cannot be heard. See OYESAN V SANUSI (1984) 4 S.C, P. 115 at P. 123: NIG. GENERAL SUPERINTENDENCE V N.P.A (1989) 3 N.S.C. P.519 at PP. 524 – 525: OBA WOLE V COKER (1994) 5 N.W.L.R (Pt.345) P. 416 at PP. 440 – 441 and AJIDAHUN V AJIDAHUN (2000) 8 W.R.N, P. 417 at P.27.

I have carefully perused all the 8 Grounds of Appeal filed by the Appellant. In determining the gamut of a Ground of Appeal, I am of the view that the particulars of error complained against will be helpful. Upon such perusal, I am of the view that the complaints of the Appellants against the finding of the trial Court that the Respondents proved title to the land through acts of possession and ownership can be adequately covered by Ground 3 of the Grounds of Appeal. This ground has been argued under issue No.1 as formulated by the Appellants. As I stated earlier, the arguments of counsel on that issue is as contained at pages 9 – 12 of the Appellants’ Brief of Argument. The arguments of counsel had been summarized earlier in the course of this judgment. I need not repeat same here. It suffices to state that the submission of learned counsel for the Appellant in a nutshell is that, the holding of the learned trial judge at pages 213 – 214 of the record that the plaintiff/respondents had successfully proved title to the land in dispute through acts of possession and ownership of the land, because the Appellants did not deny the facts relied on by the Respondents, is wrong. He had also argued that, it is now settled law over the ages that, a party who seeks declaratory relief must discharge the onus of establishing his title by proffering credible evidence. That the party must succeed on the strength of his own case and that it does not matter that his opponent did not challenge the averments relied by him in support of the claim. It is clear therefore and I do hold that the Appellants had challenged or appealed the finding of the trial court to the effect that the Respondents did not rely solely on traditional history in proof of their title to the land in dispute.

I now proceed to determine whether the finding of the learned trial judge can be supported by the evidence on the record. I had also held that the Respondents have not been able to lead satisfactory evidence on their claim of ownership of the land through traditional history. However, from the pleadings in this case, the Respondents pleaded at paragraph 14 of the Amended Statement of Claim that they owned and possessed the land in dispute from time immemorial and have been exercising rights of ownership thereon. They pleaded as follows:
“The plaintiffs’ family have owned and possessed the farmland in dispute from time immemorial and have for so long exercised rights of possession on same, viz.-

(a)     Many members of plaintiffs’ family there have farms in which they plant cocoa, kolanut, palm tree, mango, banana, oranges and food crops.

(b)     Plaintiffs’ family has many tenants on the land among who are the Egbiras, the Fulanis and people from Ilorin, Kwara State.

(c)     The aforesaid tenants regularly pay royalties to the plaintiffs’ family.

(d)     Plaintiffs’ family long time ago gave a small part of the land in dispute to one Orimaye whose mother hailed from Plaintiffs’ family for the purpose of constructing a platform for drying his cocoa, beans and not an outright gift. This Orimaye later built a small hut thereon which has collapsed long time ago.

It is obvious therefore that apart from basing their claim on acts of traditional history as pleaded in paragraph 5 of the Amended Statement of Claim; the Respondents have by their paragraph 14 of the Statement of Claim (Supra) claimed title to the land through numerous acts of ownership. Indeed, they are entitled to do so, as the law permits a plaintiff in an action for a declaration of title to land to plead more than one root of title. Though a party may still succeed where he pleads only one root of title, if he is able to prove it by credible evidence, no law stops him from pleading and proving more than one root of title. If he pleads more than one root of title he does so merely to make assurance doubly-sure. See OBI v ONYEMELUKWE (2011) 1 N.W.L.R (Pt. 1228) P. 400 at PP. 425-426 and BIARIKO V EDEH-OGWUILE (2001) 12 N.W.L.LR (Pt. 726) P. 235 at P. 263.

In a situation where a plaintiff pleads and relies on evidence of traditional history and at the same time evidence of positive and numerous acts of possession, he may still succeed in his claim based on the acts of ownership and possession, where the traditional history fails. It means therefore that, where evidence of traditional history is not satisfactory, then the need for the plaintiff to prove the numerous acts of ownership would arise. Even where a plaintiff reties on and has called evidence of traditional history successfully, the law does not preclude him from supporting or buttressing his claim with acts of ownership and user of the land in dispute. It therefore means that a plaintiff may adopt one or more of the methods proving of title or ownership. It is only where he fails to prove his case by means of traditional evidence or history and also fails to establish same by means of evidence of acts of ownership and possession, if they were pleaded and relied upon, that the plaintiff’s case will be dismissed. See BALOGUN V AKANJI (1992) 2 N.W.L.R (Pt. 225) P. 291; EKPO V ITA (1932) 11 N.L.R, P. 68; OHIAERI V AKABEZE (1992) 2 N.W.L.R. (Pt. 221) P. 1 at P. 28; UKAEGBU V NWOLOLO (Supra) at P.232 Paras. A-B and NWOKOROBIA V NWOGU (2009) 10 N.W.L.R. (Pt. 1150) P. 553 at PP. 589 – 590.

Where a party pleads and relies on acts of ownership and possession as his proof of title to the land in dispute, he must show that such acts not only extend over a sufficient length of time but that they are numerous and positive to warrant the inference that he has exclusive ownership of such land. In other words, once a plaintiff in an action for declaration of title to land is able to lead credible and satisfactory evidence in proof of acts of ownership and possession in and over the land in dispute, extending over a sufficient length of time and numerous and positive enough, as to warrant the inference that he is the true owner of the land, he has discharged the burden reposed on him by law, and he will be entitled to the declaration of title sought. See ONWUGBUFOR V OKOYE (1996) 2 N.W.L.R pt.424 P. 252 at P. 285: ACHIAK PA V NDUKA (2001) 14 N.W.L.R (pt. 734) p. 623 and BASSEY V EKANEM (2001) 1 N.W.L.R (pt. 694) p. 360 at p.377 Paras. A – B.

In the instant case, the acts of ownership and possession were pleaded in paragraph 14 of the Amended Statement of Claim. The 1st Plaintiff (James Akomolafe) testified as the P.W.3 and the plaintiffs also called two other witnesses who testified as the p.W.1 and p.W.2 respectively. The P.W.1 stated that he is a member of the Alawe family of Okekere, Ikere-Ekiti and that his family land is situate between that of the Appellants and the Respondents. He is therefore a boundary neighbor. He stated under cross-examination that he was in Court at the behest of his Alawe family. He stated also that he knows the land in dispute very well. His testimony was utterly devoid of any evidence as to whether the Respondents have been exercising any acts of ownership and possession over the land in dispute. He only stated that he knows the land of the plaintiffs (Respondents) very well. The P.W.2 on the other hand testified that the Respondents are his landlords and that he pays tribute like yams and money to the Respondents. That he was born on the land. He also stated that he is an Egbira man and that he is not the only Egbira man on the land.

Learned counsel for the Appellant had however contended that the testimonies of P.W.1 and P.W.2 are full of contradictions. He specifically pointed out those contradictions in pages 15 – 16 of the Appellants’ Brief of Argument. It is trite law that for a contradiction to affect the credibility of a witness, it must be a material contradiction. It must go to the essentiality of the material fact in issue. See IKUEPENIKAN v STATE (2011) 1 N.WL.R (Pt. 1229) P. 449 and DAGAYYA V STATE (2006) 7 N.W.L.R (pt. 980) P. 637. Contrary to the contention of learned counsel for the Appellant, P.W.1 did not say he is a tenant on the land, but a boundary neighbor and a member of the Alawe family whose land borders the land in dispute. Thus the contradiction pointed out by the Appellant does not affect the substance of the evidence of the witness. Similarly, the substance of the testimony of the P.W.2 is that he is a tenant of the Sapetu Ibariba family and not whether or not he lives on the land in dispute.

The 1st Respondent who testified as the P.W.3 testified that he grew up on the land in dispute. He also testified that his family members, including himself have been farming on the land in dispute and also put tenants thereon, such as the Egbiras, the Fulanis and Ilorin people who are farming and rearing their cattle on the land. That his family have planted palm trees, timber trees which they have almost exhausted. That the Ilorin people have been on the land as tenants for over 15 years. He was extensively cross-examined by Chief Adeniyi of learned counsel for the Appellants. He was never asked a single question by learned counsel on this aspect of his evidence. That shows that the Appellants had no disagreement with him or did not dispute this aspect of his evidence.

From the above analysis therefore, I am of the view that the finding of the learned trial judge that the Respondents had proved title to the land through acts of ownership and possession is supported by the evidence. The standard of proof required here is on a balance of probabilities or preponderance of evidence. The evidence of the Respondents on those facts found as established by the learned trial judge was neither challenged nor controverted. Furthermore, the plaintiffs need not call a host of witnesses. The testimony of a single witness which is credible and uncontroverted will suffice. Moreover, none of the two witnesses of the Appellants controverted the testimony of the Respondents in anyway. I therefore find that the Respondents have been able to prove that they are entitled to the land in dispute having shown that they have been on the land and been exercising acts of ownership and possession thereon. Issues one (1) is resolved in favour of the Respondents, while issue number two (2) is resolved in favour of the Appellants.

The 3rd issue for determination in this appeal is:-

Whether the trial Court was right in relying heavily on un-pleaded and irrelevant facts in arriving at its decision.

On this issue, learned counsel for the Appellant adopted his submission canvassed in paragraphs 3.03 to 3. 12 of the Appellants’ Brief of Argument. He then went on to highlight the irrelevancies, which he numbered (i) to (vii) at pages 25-27 (Paragraphs 5.02 5.03) of the Appellants’ Brief of Argument. The Arguments from paragraphs 3.03 – 3.12 of the Appellants’ Brief of Argument had earlier been summarized by me. It is the submission of learned counsel for the Appellants that, apart from the fact that those findings of the learned trial judge are without basis, they are most irrelevant to the issues before the Court.
Learned counsel for the Respondents responded to this issue by adopting his arguments and submissions on issues one (1) and two (2), to further submit that, the lower court did not place reliance on any un-pleaded facts in reaching his decision. That the lower court reached its conclusions based on the pleadings and the evidence before it.

It is the law that, in every proceeding in the High Court initiation by writ of summons, it is the pleadings of the parties that determine the direction or course of evidence at the trial. In other words, it is the plaintiff’s pleading which is manifested in the statement of claim, and the defendant’s defence as detailed in the statement of defence, that settle the issues and the evidence to be admitted at the trial. The reason why Courts insist on filing of pleadings by the parties is to enable the Court ascertain as much as possible the issues in controversy between the parties and also give parties to the proceedings advance notice of the case their opponents will present at the trial. It therefore obviates the element of surprise. In arriving at its decision at the conclusion of the trial, a trial Court is expected to sieve through the evidence adduced at the trial, so that it confines itself to the questions raised by the parties in their pleadings to the exclusion of any other fact or question that might have arisen during the hearing. Since parties are expected to confine themselves to their pleadings, any evidence inadvertently admitted at the trial will be irrelevant to the determination and the trial court will be bound to exclude or expunge same. In other words, parties are bound by their pleadings and accordingly any evidence on facts not pleaded goes to no issue. See OHIAERI V AKABEZE (Supra) at P. 27; EKE V OKWARANYIA (2001) 12 N.W.L.R (Pt. 726) P. 181; MAKANJUOLA V AJILORE (2001) 12 N.W.L.R (Pt. 727) P. 416 at P.435 and AGBU V C.S.C.N.S. (2011) 1 N.W.L.R. (Pt. 1229) P. 544

In the instant case, it is clear from the judgment of the lower court as contained on the record, that the learned trial judge profusely relied on evidence adduced in exhibits A in reaching certain conclusions, here and there in the said judgment. Those facts or evidence relied on by the learned trial judge were never pleaded by the Respondents. I had earlier held that the lower court was wrong to have utilized the evidence contained in Exhibit A in the determination of this issue. I therefore hold that the lower court was therefore in error to consider those facts as enumerated by the Appellants in paragraphs 5.02 at pages 25 – 26 of the Appellants’ Brief of Argument, in the determination of the issues that arose in the instant case. They were not specifically pleaded and therefore irrelevant to the issues in the instant case. In other words they go to no issue. I therefore agree with learned counsel for the Respondent that the question posed in issue number three should be answered in the negative, Issue No. 3 is accordingly resolved in favour of the Appellants.
The 4th issue is:

Whether the decision of the Lower court is not against the weight of evidence placed before the trial judge.

This issue is obviously culled from the omnibus ground, which is Ground 8. This issue postulates that there is no evidence which if accepted, would support the findings of the trial court.

In arguing this issue learned counsel for the Appellants adopted his arguments and submissions on issues 1, 2, and 3 as his argument on this issue. He then submitted that, the decision of the trial court in its entirety run contrary to the evidence adduced by the Respondents before it. That properly evaluated, the Respondents’ case did not preponderate over that of the Appellants, and therefore ought to fail. He relied on the cases of MOGAJI V ODOFIN (1979) 4 S.C, p.91 at P. 93 and EBBA V OGBODO (1984) 4 S.C, P. 84 at P. 98; OSOLU V OSOLU (2003) 11 N.W.L.R (Pt. 832) P. 608 and LEGGA V SARHUNA (2009) 16 N.W.L.LR (Pt 1114) P. 427 at PP. 453 and 481, to further submit that, put on an imaginary scale of evaluation, Respondents’ evidence woefully failed the test of preponderance. Learned counsel therefore urged us to resolve this issue in favour of the Appellants and allow the appeal on this ground.

In response, learned counsel for the Respondents, while adopting his submissions on issues 1 and 2, submitted that the judgment of the trial court is borne out of the evidence of the parties. We were therefore urged not to disturb the findings and conclusions of the lower court, and to resolve this issue in favour of the Respondents.

The law is now settled that it is the duty of the trial court that had the advantage of seeing and hearing the witnesses, to evaluate and ascribe probative value to the evidence adduced at the trial. An Appellate court which does not enjoy this singular opportunity of seeing and hearing the witnesses will be reluctant to interfere with the findings of fact by the trial court, especially where such findings have to do with the credibility of witnesses. An Appellate Court is only enjoined to interfere where the trial Court has failed to satisfactorily perform its primary function of evaluating and ascribing probative value to the evidence. Otherwise, an appellate court will not interfere. In doing that the appellate court will only look at the cold facts as presented on the record. The appellate court will normally interfere with the findings of fact and ascription of probative value to evidence where there are special circumstances to warrant or justify doing so. Where the Appellate court finds from the record that the trial court failed to properly evaluate the evidence presented before it and which finding led to a perverse decision or miscarriage of justice, it will interfere. A perverse decision is one where the trial court took into account matters which it ought not to have taken into account or where it shut its eyes to cogent facts before it. In general however, appellate courts are slow and circumspect in reversing findings of a trial court unless it is fully and satisfactorily shown that such findings of fact are not supported by the evidence on record. See ALI V SALIHU (2011) 1 N.W.L.R (Pt. 1228) P. 227: NIKAGBATSE V OPUYE (2010) 14 N.W.L.R (Pt. 1213) P. 50; P. 50; OGHIRI V N.A.O.C LTD (2010) 14 N.W.L.R (Pt. 1213) P. 208 and OKONKWO V OKONKWO (2010) 14 N.W.L.R (pt.1213) p.228. The burden is on the party who complains about the findings of facts and evaluation of evidence to show from the printed evidence on the record how those findings were wrong. In other words he has to demonstrate that if the learned trial judge had not found as he did, the result would have been different. In the instant case, apart from adopting his arguments and submissions dealt with in issues 1, 2, and 3 learned counsel for the Appellants did not demonstrate how the learned trial judge wrongly assessed and ascribed probative value to the evidence adduced at the trial. He did not show how, if evaluated differently, the imaginary scale will preponderate in the Appellants’ favour. The only finding I have arrived at to support this issue is in respect of issue 3, where the trial court took into consideration un-pleaded and irrelevant facts. Similarly, I have found that the learned trial Judge erroneously ascribed probative value to the evidence led on the claim of the Respondents based on traditional history through Exhibit A. But for those shortcomings there are other facts as found on the printed record on which the learned trial judge relied to find in favour of the Respondents. I have not seen any reason for disturbing those findings of the learned trial Judge as they are neither perverse nor have they led to a miscarriage of justice. This issue is also resolved in favour of the Respondent.

I only wish to comment on the reaction of learned counsel for the Respondents to what he called “unjustified and unnecessary aspersion” on the learned trial judge by learned counsel for the Appellants. I have soberly reflected on those, comments of learned counsel for the Appellants in the Appellants, Brief of Argument as reproduced in pages 28 and 29 of the Respondents, Brief of Argument. After a very careful remonstration, I entirely agree with learned counsel for the Respondents that those comments of learned counsel of the Appellants are indeed unfounded and not the least justified. Those as persons of learned counsel are clearly an attack on the sincerity and impartiality of the learned trial judge. As can be seen chief Adeniyi of learned counsel for the Appellants has accused the learned trial judge of taking-sides in the matter in favour of the Respondents, willy-nilly. This is an attitude not expected of counsel who is expected to be a partner with the judge(s) in the administration of justice. I can however understand the feelings of chief Adeniyi who from the record is shown to be a member of the Appellants’ family who lost before the learned trial judge. He clearly opened up and revealed his feelings in the manner he did in those portions of his written brief of argument presented before us. He should however be reminded that he is not just a member of his Ejimo family, but he carries the additional responsibility that the society and his calling as a member of the Legal Profession has on him. Perhaps it will be helpful if I commend to counsel the position of the Supreme Court in situation such as this in the cases of OJIEGBE V UBANI (1961) 1 ALL N.L.R. P. 277 at 279 Per Sir Adetokunbo Ademola, C.J.F. and ADEFULU V OKUNLAJA (1998( 1 N.W.L.R (Pt. 550) P. 435 at P. 452 Per Ogundare, J.S.C.

On the whole, and having resolved issue 2 and 3 in favour of the Appellant, this appeal has succeeded in part. However, since issues 1 and 4 have been resolved against the Appellant and in favour of the Respondent, the judgment of the lower court declaring title to the land in dispute on the Respondent is hereby affirmed. I make no order as to cost.

UWANI MUSA ABBA AJI, J.C.A: I have had a preview of the judgment of my learned brother H. M. Tsammani, J.C.A., just delivered.

I entirely agree with the conclusions predicated on the reasons contained in the said judgment. His lordship’s proposition and pronouncements was a master piece. I therefore adopt same as mine.

His Lordship having resolved issues 2 and 3 in favour of the Appellants, the appear has succeeded in part, However, having resolved issues 1 and 4 against the Appellants and in favour of the Respondents, I therefore affirmed the judgment of the lower court declaring title to the land in dispute on the Respondents.

I also endorse the consequential order as to costs.

CHIDI NWAOMA UWA, J.C.A.: I was privileged to read in advance the judgment of my learned brother HARUNA M. TSAMMANI, J.C.A.
I agree with his Lordship’s reasoning and conclusions arrived at in resolving all the issues raised in this appeal and in affirming the judgment of the trial court declaring title to the land in dispute in favour of the Respondents. I abide by the order awarding no costs.

Appearances

1. Chief A.A. Adeniyi
   2. A. Umar Esq. For Appellant

AND

Bamidele Omotoso Esq., For Respondent