FADEBI v AKINTAN

FADEBI v AKINTAN


IN THE COURT OF APPEAL
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE

ON WEDNESDAY, 18TH JANUARY, 2017


Appeal No: CA/AK/185/2013
CITATION:

Before Their Lordships:

MOHAMMED AMBI-USI DANJUMA, JCA

OBANDE FESTUS OGBUINYA, JCA

RIDWAN MAIWADA ABDULLAHI, JCA


BETWEEN

CHIEF FESTUS FADEBI
CHIEF B. I. AKINLOSOTU
(For themselves and on behalf of all the children of Adegbayimu family of Odigbo)

(APPELLANTS)

AND

ADESONU AKINTAN
PROPHET B. A. BLESS
OLOJA ABIODUN ADEMOYE

(RESPONDENTS)


PRONOUNCEMENTS


A. EVIDENCE
1. Burden of Proof –

Whether a plaintiff can rely on the weakness of the defendant’s case to prove his own case in action for declaration of title

“It cannot be gainsaid that a claimant for declaration of title to land must show reliable evidence to establish his case, since he must succeed on the strength of his own case and not on the weaknesses of the Defendant’s case. This onus on the Claimant becomes more onerous where the Defendant has not set up a counter-claim. See Abasi & Ors. v. Onido & ors. (1998) 5 NWLR (Pt. 548) 89 at 104; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137 S.C; Dokubo v. Omoni (1999) 9 NWLR (Pt. 616) 647 S. C. and Abey v. Alex (1999) 14 NWLR (Pt 637) 148 S.C.” Per ABDULLAHI, JCA read in context

2. Traditional History – Requirements expected of a party relying on traditional history in an action for declaration of title to land

What is required of a person relying on evidence of traditional history in an action for declaration of title to land

“The case of Idundun v. Okumagba ( 976) 9-10 SC 227 at 246-251, is an authority that proof of traditional evidence is one of the accepted ways of proof of ownership of land. However, for a claim for declaration of title to land to succeed, the Claimant must adduce reliable and consistent traditional evidence to establish his case. In other words, all the evidence led by his witnesses must be consistent with each other and indeed with their pleadings as evidence that is at variance with pleadings goes to no issue.”Per ABDULLAHI, JCA read in context

3. Weight of Evidence –

What the court should consider before attaching weight to an evidence

“I am in agreement with the Learned Counsel for the Appellants that rule of relevancy governs the admissibility of documents, but the weight to be attached to an admitted document is entirely a different kettle of fish. This is because, to determine the weight to be attached, the judge will evaluate the document vis-a-vis the facts pleaded and proved by other pieces of evidence. Evaluation of evidence goes beyond the realm of logic. It is a matter of law and facts.” Per ABDULLAHI, JCA read in context

B. LAND LAW
4. Declaration Of Title To Land – Duty of the Claimant in an action for declaration of title to land

Duty of a claimant/plaintiff in an action for declaration of title to land

“Foremost of the duties on a Claimant for declaration of title to land is the duty to define clearly, precisely and concisely the description and identity of the piece of land he is claiming. This duty can be discharged by a Claimant through oral evidence of his witnesses describing with certainty the exact location of the land, the size and the boundaries of the land in dispute. Such oral description must not be vague. The onus can also be discharged by production of survey plan showing the exact portion of land in dispute. In the absence of a survey plan, the description must be clear, precise and concise. In the case of Temile v. Awani (2001) 30 W.R.N 1 at 22, the Supreme Court, per Karibi-Whyte, JSC (as he then was) opined, thus:

“It is a well settled principle of our law that a Court can grant a declaration of title to land even without production by the plaintiff of a survey plan. The accepted acid test is whether the land the subject of the declaration can be ascertained with “definitive certainty” so that a surveyor taking the record of proceedings can produce a plan showing accurately the land which title was been granted.”

This is the degree of preciseness of description a Claimant who has not produced a survey plan must show. Nonetheless, the identity of the land in dispute will only be an issue when the defendant in his statement of defence specifically disputes either the area or size or location of same as described or shown by the Claimant’s pleadings. Otherwise, it will be taken that the Defendant clearly knows the location, size and boundaries of the land in dispute.”Per ABDULLAHI, JCA read in context

5. Survey Plan – Instances in which a survey plan will be necessary

When a survey plan will be necessary

“It is without any iota of equivocation clear that the identity of the land in dispute is unclear and in dispute between parties. This lack of clarity is occasioned by the fact that the Appellants gave undue diligence in establishing the identity of the entire Adegbayimu family land than in describing with certainty the location, identity and boundaries of the land subject matter of this Appeal. This is indeed a situation where a survey plan is absolutely necessary to properly identify the exact location, size and boundaries of the land in dispute. A description that the land in dispute is within Adegbayimu family land is as vague as it is unclear as no surveyor taking record of proceedings can on that description produce an accurate survey plan of the exact location, size and boundaries of the land in dispute. See: Temile v. Awani (supra), Arabe v. Asaulu 1980 5-7 SC 78; Onwuka v. Ediala (1989) NWLR (Pt. 96) 182 S.C and Ate Kwadzo v. Robert Kwasi Adjei 10 WACA 274.”Per ABDULLAHI, JCA read in context

6. Identity of Land –

Need for identity of a land to be ascertained

“I have perused the lead judgment as articulated and find that my Lord has captured the pith and essence of the appeal, being on whether the identity of the lis in dispute-being a piece of land for which a declaratory order for title and an order of injunction are sought had been made out to merit the grant of those prayers as sought.

The recondite position of the law, nay the trite position, is as captured in the lead judgment relying on a rain/plethora of cases, including Ikyereve V. Ihyambe (2001), FWLR (Pt. 31) 2881 at 2883; Ekpemepolo V. Edremoda (2009) (176) LRCN 235 at 240 – 241 ratio 4 – that in a proof of title to land where a declaration is sought and moreso, an injunctive order, the identity of the land must be precisely proved. This is, imperative, if success must be. A Court cannot make an order in vain without the subject being identifiable and definite.

How may the order be enforced? The judex does not act in vain. The Courts will not permit a speculative litigation without a defined cause of action.
It is for the above reasoning that this Court held in Pastor Karimu & Ors V. Government of Lagos State (2012) 5 NWLR Pt. 1294, page 620 that the identity and clear demarcation by description of land claimed was of utmost importance in an action for declaration of title to land and injunction.

See again, Appeal No. CA/AK/5/2015, Saka Buraimoh (for and on behalf of members of Ufimokun family of Ukere Oke, Akure and Tunde Alejo where I again reiterated the trite stance of the law on the need to supply a clear identity of the land.

Indeed, the bane of many a good case on the claims for declaration of title to land and injunction is the failure or inability of the Claimants to prove the identity of the land claimed with precision, where parties are not ad-idem or the land known to the parties.

The swerving/uncertain identity of the land put forward by the Claimant at the trial Court unfortunately warranted the decision to dismiss the suit. It was rightly done pursuant to our inquisitorial system.” Per DANJUMA, JCA read in context


LEAD JUDGMENT DELIVERED BY ABDULLAHI, JCA


This is an appeal against the judgment of Hon. Justice A. O. Akeredolu of the High Court of Ondo State, Ore Judicial Division, sitting at Ondo delivered on 19th day of December, 2012, dismissing the claims of the Plaintiffs herein after called the Appellants in its entirety. The Appellants as Plaintiffs at the trial Court brought this action via a Writ of Summons and Statement of Claim dated and filed on 22/05/2009. The Respondents as defendants filed their undated Statement of Defence on 23/9/2009. Parties amended their pleadings severally. The pleadings upon which trial was based are the 2nd Further Amended Statement of Claim dated 4/10/2012; 2nd Further Amended Statement of Defence dated 25/03/2011 and Further Amended Reply to Statement of Defence dated 4/10/2012.

The Plaintiffs/Appellants claim against the Defendants/Respondents jointly and severally are as follows:

(a) A declaration that it is the Plaintiffs that are entitled to the Certificate of the Customary Right of Occupancy over the piece of land in dispute situate and lying at Ondo/Ore bye pass, Odigbo Local Government of Ondo State.

The boundaries of the land in dispute are as follows:

(i) On the right hand side by family land which is being cultivated by Akinjopo Omopekun.
(ii) On the left hand side by family land occupy (sic) by Chief F. B. Ogunmoyero, a member of the family.
(iii) At the back by family land

(iv) At the front by Existing Ondo/Ore Road.

(b) N2 million naira as special and general damages against the 1st and and (sic) defendants for their said act of Trespass.

(c) Perpetual injunction restraining the defendants whether by themselves, agents, servants or privies from further act of trespass on the said land in dispute.

STATEMENT OF FACTS.

The Appellants’ case was that they are the owners of a large expanse of land, incorporating the land in dispute stretching to Omifon Aladura along Ore/Ondo Road, Odigbo vide an inheritance from their progenitor, Adegbayimu who was one of the four families that Orunsero, the then King shared land at Odigbo and that same was confirmed in a 1960 judgment received in evidence as Exhibits F2 and F3.

On the other hand, the 1st Defendant through whom the 2nd and 3rd Defendants/Respondents derived title, stated that he became the owner of the parcel of land in dispute by a grant from his maternal grandmother, Madam Igbekoyi who was granted a large parcel of land by her MODU family who are the original owner of the land in dispute.

The parties filed and exchanged pleadings and the suit proceeded to trial. Parties called four witnesses at piece and 5 exhibits were tendered and marked. At the conclusion of trial the learned Judge in a considered judgment delivered on 19th day of December, 2012, dismissed the claims of the Appellants in its entirety.

Dissatisfied, the Appellants filed a Notice of Appeal dated 31/12/2012, containing 8 Grounds of Appeal. In compliance with the rules of this Court, parties filed and exchanged Briefs of Argument. The Appellants Brief of Argument dated and filed on 16/6/2014 but deemed properly filed on 7/3/2016, was settled by Tunde Ajayi Esq., while the Respondents’ Brief of Argument dated and filed on 4/2/2015 but deemed properly filed on 7/3/2015 was settled by Prince A. F. Adejayan Esq.

At the hearing of the appeal on 8/12/2016, Mr. A. A. Olubusade adopted the Appellants’ Brief of Argument and therein raised the following four issues for determination of this appeal thus:

1. Whether the Appellants have not provided sufficient evidence to support their case for declaration of title to the land in dispute.

2. Whether Appellants have given an inconsistent description of the boundaries of the land in dispute.
3. Whether the failure of the Appellant to file a survey plan of the land in dispute is fatal to the claim for declaration of title.

4. Whether the trial Court was right in not giving judicial Notice to the content and fact of history as contained in Exhibit F2 supported by Exhibit F3.

On the other front, A. F. Adejayan Esq. adopted the Respondents’ Brief of Argument and distilled two issues for resolution of this appeal, thus:

1. Whether or not the trial Court is right to have dismissed the claim of the Appellants in its entirety.
2. Whether or not the trial Court is right not to have attached any probative value to Exhibits F2 and F3 relied upon by the Appellants.

It is my humble view that the two issues raised by the Respondents will meet the justice of this case, and I shall resolve this appeal on those two issues. ARGUMENT OF ISSUES. ISSUE 1

Arguing this issue vide their issues 1, 2 and 3, the learned Appellants counsel submitted that the Appellants gave sufficient evidence and facts in support of their claim for declaration of title to the land in dispute before the trial Court, having satisfied three of the five ways of establishing title to land as stated in the celebrated case of Idundun v. Okumagba (1979) 9-10 SC 227 at 246-250. Counsel submitted that the Appellants relied on traditional evidence in proof of their claim for Statutory (sic) Right of Occupancy. He referred to pages 190 and 202 of the record of appeal to submit that the Appellants both pleaded and gave evidence that the 1st Appellant has a relationship with Adegbayimu family through his grandmother and that he inherited the land in dispute through his mother who farmed on the land in dispute behind his own farm. Learned Counsel reproduced and reviewed the evidence-in-chief of Pw1 and Pw4 and their respective cross-examinations to submit that they corroborated each other as to the traditional history of the land in dispute; as well as the boundary and location of the entire Adegbayimu family land. Furthering, Counsel submitted that the evidence of Pw4 to the effect that the maternal grandmother of the 1st Respondent already had the 1st Respondent’s mother called Mekusonu for one Akinbusi before she got married to his father was conceded by Dw4 (1st Appellant) as can be seen at pages 212, lines 25-25(sic) of the record. He argued that the evidence of Pw1 and Pw4 are consistent that Sabo market is the beginning of Adegbayimu family land and that Adegbayimu family descendant is still the king of Omifon till today, exercising control over the family stretch of land, and that the land in dispute is within the Adegbayimu family land. He submitted that Exhibits F2 and F3 are consistent with the Appellants evidence of traditional history as to their claim to the land in dispute. He submitted further that the person from whom the Respondents derived title, Adega Mamukuyomi, gave evidence in the proceedings that led to Exhibit F2 in which four land owning families in Odigbo were stated and Adega family was not among. He then submitted that the Appellants had in both their pleadings and evidence stated who founded the land, how the land in dispute devolved from one generation to another until Appellants inherited same. He furthered that the trial Court ought to have taken judicial notice of the Appellants traditional history and Custom that existed over the years as was confirmed in Exhibit F2 handed down by a Court of coordinate jurisdiction. He referred to the case of Ewo v. Ani (2004) 3 NWLR (Pt. 861) 611 at 631 to the effect that to succeed on traditional evidence as proof of title, the party must prove who founded the land, how the land was founded and particulars of the ancestors through whom he claim. He also placed reliance on Anukam v. Anukam (2008) 5 NWLR (Pt. 1081) 455-473, to submit that the Appellants led evidence to link their root of title, to their progenitor in respect of not only the land in dispute, but also the entire Adegbayimu family land as confirmed in Exhibit F2. Counsel submitted that it is trite law that Court is bound to take judicial notice of document tendered before it in the analysis of issues, but that the trial Court had failed to do so with Exhibits F2 and F3 and same led to miscarriage of justice.

On the boundaries of the disputed land, Counsel contends that there was no inconsistency on the boundaries of the disputed land as both parties agreed on the boundary men but only differ on whether the boundary men are from Adegbayimu family as asserted by the Appellants or Adega family asserted by the Respondents. Counsel referred to the evidence of Pw1 at pages 203, lines 26-35, and Pw4 at pages 211, lines 13-18 of the record to submit that the Appellants’ witnesses were consistent on the boundaries and location of the land in dispute having testified that the land in dispute is within Adegbayimu family land and that family members farmed around it. He contends that the mention of Mr. Adeayo Aderoyeje as boundary man to the disputed land in the Appellants’ Further Amended Reply to Statement of Defence is not contradictory to the pleading since Adeayo Aderoyeje is one of the family members already pleaded as farming around the disputed land. On the strength of this, Counsel submitted that the trial Court was wrong to have held that the boundary of the land in dispute cannot be ascertained. Counsel argued that it would have been different if Adeayo Aderoyeje is not a member of Adegbayimu family as to fall among the family members farming around the disputed land which has always being stated to be within the Adegbayimu family land.

Learned Counsel argued that the identity of the land in dispute is clear and known to the parties, same having been described by the Appellants as having Chief F. B. Ogunmoyero on the left side, Adejopo Omopekun by the right, family land at the back and Ore/Ondo road at the front. He submitted further, that 1st Respondent at page 224 lines 30-34 of the record testified that Madam Sarah Ogunmoyero shared boundary with him, showing that parties know the identity of the disputed land.

As to the Survey Plan, Counsel submitted that Exhibit F5 was tendered by the Appellants as survey plan and the Respondents neither objected to it nor tendered a counter dispute survey plan which implied that they conceded to the content of Exhibit F5 as the correct description of the identity of the land in dispute. He argued that the combined effect of Exhibits F2, F3 and F5 is that the identity of the disputed land is clear and known to the parties, and as such the trial Court was wrong to have held that the land in dispute was not properly identified through a survey plan.

He placed reliance on the case of Efe Tiroje v. Okpaloh (1991) 5 NWLR (Pt. 198) (sic) to the effect that absence of a survey plan cannot defeat the plaintiff’s claim for title to land where the piece of land in dispute is identifiable.

Reacting, Learned Counsel for the Respondents submitted that in a claim for declaration of title to land, the foremost duty on a claimant is to define clearly, precisely and concisely the description and identity of the land in dispute, by oral evidence showing the location and boundaries or by a dispute plan prepared by a registered Surveyor, especially when by the pleadings, the identity of the land is made an issue. He relied on the cases of Odichie v. Chibogun (1994) 2 LRCN 54 at 66; Otanma v. You Dubagha (2006) 134 LRCN 362 at 365-366 and Udenze & Ors. v. Nwosu & Ors. (2008) 154 LRCN 110 at 116-117 ratio 184. Counsel furthered that the Respondents by virtue of their Paragraphs 4, 6, 8, 19 and 20 of their 2nd Further Amended Statement of Defence put the identity of the land in dispute in issue but the Appellants failed to prepare and tender a dispute plan to clarify the issue of identity. He argued that the contradictions in the Appellants pleadings and their witnesses further put the identity of the land in dispute in issue. For instance, said Counsel, while Paragraph 33 (a) (i-iv) of the 2nd Further Amended Statement of Claim the description of the boundary of the land in dispute sharply contradicts that given at Paragraph 14 of the Further Amended Reply to statement of Defence informing why the learned trial judge was right to have made a finding of facts that the Appellants’ pleading contradicted the evidence of their witnesses as to the boundary and identity of the land in dispute.

Counsel referred to the evidence of Pw1 at page 202 lines 27-31 wherein Pw1 in one breath testified that he farmed on the land in dispute and on another breath said the land in dispute is behind the one he farmed, without given a description of the very land in dispute.

Furthering, that while Pw2, a sister to Pw1 said she farms on the land in dispute during examination in-chief, under cross-examination, she said it was the same land that Pw1 testified that she also gave evidence. He referred to Pw2 evidence at page 206, lines 1-19 of the record of appeal.

Counsel submitted that at page 206 lines 4-10, Pw1 stated that Chief Ogunmoyero was a husband and son to Madam Sarah Ogunmoyero, while under cross-examination said that Chief Ogunmoyero inherited the farmland adjoining the land in dispute on one side on the death of his mother, Madam Sarah Ogunmoyero. And Pw4 at page 214 lines 21-25 said under cross examination that Chief Ogunmoyero farmed on the land because of his father and not because he inherited same from his mother as his mother, Sarah Ogunmoyero never farmed on the land in dispute. Again, said Counsel while Appellants pleaded vide their Paragraph 14 of their Further Amended Statement of Claim that the boundary man is Mr. Adeayo Aderoyeje at the right hand side, Pw4 testified at page 211 lines 29-31 that the boundary man at the right hand side is Madam Dinnola Omopekun. Counsel referred to Ikyereve v. Ihyambe (2001) FWLR (Pt. 31) 2881 at 2883; Udenze v. Nwosu (supra) at 118-119 ratio 6&7 and Ekpemupolo v. Edremoda (2009) 176 LRCN 235 at 240-241 ratio 4, to submit that a declaration of title cannot be granted over a piece of land the boundaries are obscure and uncertain since it is not the duty of Court to demarcate boundaries for parties. And where a plaintiff fails to ascertain the identity of the land in dispute, his case must fail. Furthering, Counsel relied on Yusuf v. Adegoke (2008) 157 LRCN 172 at 187 to submit that the trial Court was right to have held at page 281 of the record that once proof of title by traditional evidence fails, the Court cannot consider any of the other laid down methods of proof of title after reviewing the traditional evidence given by the Appellants at pages 275-281 of the record of appeal.

On another front, Counsel argued that the Appellants only pleaded traditional evidence as their root of title, apart from not ascertaining the identity of the land, only narrated in their pleadings and evidence before the lower Court the genealogical history of the Adegbayimu family, but did not state how their progenitor founded the land allegedly owned by him including the land in dispute, his activities on the land and that of their intervening ancestors and how the land devolved on them. He referred to Oyadare v. Keji (2005) 123 LRCN 17 at 20 ratio 7; Adebayo v. Shogo (2005) 124 LRCN 318 at 319 ratio 1 and Iro Agbara v.Ufomadu (2009) 174 LRCN 61 ratio 67.

It was submitted by Learned Counsel that the Appellants both pleaded and gave contradictory evidence on who are the boundary men of the land they are claiming. For instance, said Counsel, at Paragraph 3 (a) of their Further Amended Reply, it was pleaded that Lasun family is their traditional boundary man and that same has been established in an earlier case in Suit No: AK/22/60, whereas at Paragraph 6 and 7 of the same Further Amended Reply, it was pleaded that Adega family is their traditional boundary man; and at Paragraph 5, that Adega family settled some people on their own portion of land. Again, said Counsel, at Paragraph 12 (b)(ii) of the same Reply, it was stated that one Adete Akintope was never known to them on their family land, but Pw4 under examination in chief at page 213 lines 14 said that Adete Akintope is farming on Adegbayimu family land. He furthered that while Pw1 under cross examination said the 1st Respondent only has subsistence farming on the land in dispute and neither did he farm cash crops nor was he among the people whose cash crops were counted when Agro Service enumerators came in 1978, Pw4 admitted that the 1st Respondent was among the people whose cash crops were counted on the land in dispute. He referred to pages 205, lines 18-28 and 215 lines 8-17 of the record. Counsel submits that the Respondents vide their Paragraphs 8, 12, 23 and 24 of the 2nd Further Amended Statement of Defence at page 100-105 of the record of appeal, maintained that his family ‘Modu’ has nothing in common with Adegbayimu family land, but, that Adega family land separates the respective land of Adegbayimu and modu families.

He called in aid the cases of Thompson v. Alhaji Arowolo 14 NSCQR (Pt. 1) 493 of 498; Akinola v. Olumo (1962) 1 ANLR 224; Eyo v. Omoba & Anor (2011) 195) LRCN 38 at 48 and Anukam v. Anukam (2008) 159 LRCN 33 at 37 to submit that a party whose evidence is conflicting as to his root of title cannot have pronouncement on his favour, and that a plaintiff to a claim for declaration of title can only succeed on the strength of his case and not on the weakness of the Defendant’s case.

He argued that the Appellants cannot rely on Exhibit F5 tendered by the Respondents (and which is a survey plan and not a dispute plan) who did not file a counter claim, to show his acts of possession and ownership over the land in dispute. He urged that this issue be resolved for the Respondents.

RESOLUTION OF ISSUE 1

It cannot be gainsaid that a claimant for declaration of title to land must show reliable evidence to establish his case, since he must succeed on the strength of his own case and not on the weaknesses of the Defendant’s case. This onus on the Claimant becomes more onerous where the Defendant has not set up a counter-claim. See Abasi & Ors. v. Onido & ors. (1998) 5 NWLR (Pt. 548) 89 at 104; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137 S.C; Dokubo v. Omoni (1999) 9 NWLR (Pt. 616) 647 S. C. and Abey v. Alex (1999) 14 NWLR (Pt 637) 148 S.C.

Foremost of the duties on a Claimant for declaration of title to land is the duty to define clearly, precisely and concisely the description and identity of the piece of land he is claiming. This duty can be discharged by a Claimant through oral evidence of his witnesses describing with certainty the exact location of the land, the size and the boundaries of the land in dispute. Such oral description must not be vague. The onus can also be discharged by production of survey plan showing the exact portion of land in dispute. In the absence of a survey plan, the description must be clear, precise and concise. In the case of Temile v. Awani (2001) 30 W.R.N 1 at 22, the Supreme Court, per Karibi-Whyte, JSC (as he then was) opined, thus:

“It is a well settled principle of our law that a Court can grant a declaration of title to land even without production by the plaintiff of a survey plan. The accepted acid test is whether the land the subject of the declaration can be ascertained with “definitive certainty” so that a surveyor taking the record of proceedings can produce a plan showing accurately the land which title was been granted.”

This is the degree of preciseness of description a Claimant who has not produced a survey plan must show. Nonetheless, the identity of the land in dispute will only be an issue when the defendant in his statement of defence specifically disputes either the area or size or location of same as described or shown by the Claimant’s pleadings. Otherwise, it will be taken that the Defendant clearly knows the location, size and boundaries of the land in dispute.

I have carefully gone through the relevant pleadings of parties as contained on the record of appeal and it is clear that parties are not ad idem on the location and boundaries of the land in dispute. To be precise, the combined effect of Paragraphs 8, 21, 23 and 24 of the 1st Respondent’s 2nd Further Amended Statement of Defence put the identity of the land in dispute in issue. For instance, the Appellants vide their Paragraphs 10 and 33 of their 2nd Further Amended Statement of Claim and Paragraph 14 of the Further Amended Reply to Statement of Defence, albeit self-contradictory and inconsistent, differs from the Respondent’s description of the identity of the land in dispute vide their Paragraphs 5, 6 and 8 of 2nd Further Amended Statement of Claim. It is without any iota of equivocation clear that the identity of the land in dispute is unclear and in dispute between parties. This lack of clarity is occasioned by the fact that the Appellants gave undue diligence in establishing the identity of the entire Adegbayimu family land than in describing with certainty the location, identity and boundaries of the land subject matter of this Appeal. This is indeed a situation where a survey plan is absolutely necessary to properly identify the exact location, size and boundaries of the land in dispute. A description that the land in dispute is within Adegbayimu family land is as vague as it is unclear as no surveyor taking record of proceedings can on that description produce an accurate survey plan of the exact location, size and boundaries of the land in dispute. See: Temile v. Awani (supra), Arabe v. Asaulu 1980 5-7 SC 78; Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182 S.C and Ate Kwadzo v. Robert Kwasi Adjei 10 WACA 274.

The case of Idundun v. Okumagba ( 976) 9-10 SC 227 at 246-251, is an authority that proof of traditional evidence is one of the accepted ways of proof of ownership of land. However, for a claim for declaration of title to land to succeed, the Claimant must adduce reliable and consistent traditional evidence to establish his case. In other words, all the evidence led by his witnesses must be consistent with each other and indeed with their pleadings as evidence that is at variance with pleadings goes to no issue. In this wise, the Appellants’ witnesses have also not done well. For instance, Pw1 gave evidence under cross examination at page 205 lines 18-28 of the record that the 1st Respondent only has subsistence farming on the land in dispute without cash crops and that he was not among the people whose crops were counted when the Agro Services Enumerator came in 1978. Under cross examination, Pw4 at page 215 lines 8-17 of the record admitted that the 1st Respondent was among the people whose crops were enumerated.

Indeed, the learned trial Judge captured these contradictions aptly at page 28 of his judgment, thus:

“The onus of proof that the land in dispute is the same land claimed by the defendant rests squarely on the plaintiff.
The Plaintiff’s witnesses gave divergent description of the land in dispute. Whilst Pw1, Omopekun Akinjo said his mother farmed on the land and upon her demise he took over, he also said it is behind his farmland. He said furthermore that he is still farming on the land. Pw2, Mrs Omolara Adetan, said she has been faming on the land in dispute for about 15 years. She also said the land she described is the same as the one Pw1 described.Paragraph 33 (a)(1) describes Omopekun as a boundary man to the land in dispute and not as a member of Adegbayimu family who farms on the land in dispute. Neither Pw1 nor Pw2 mentioned the extent of the land.”

In the light of the above contradictions in the evidence of Appellants’ witnesses, it is clear the evidence as to the location of the parcel of land in dispute is vague and uncertain. Even common sense shows that the Appellants who relied on such evidence must be the one to suffer that disadvantage. To this extent, this issue is resolved for the Respondents.

ISSUE 2

While arguing this issue vide their issue No 4 on their Brief of Argument, Learned Counsel for the Appellants submitted that Exhibits F2 and F3 were admitted because they are relevant to the primary issues in this case. He argued that since the parties pleaded facts and led historical evidence in this case, Exhibits F2 and F3 provided the best opportunity for the Court to get the truth that could assist in determination of this case especially when no objection was raised against their tendering as exhibits. Counsel submitted that Exhibit F3 show the location of Adegbayimu and Koti families’ lands. Furthering, Counsel submits that Exhibit F2 showed that Adaja Mamukuyomi, the grandfather of 1st Respondent gave evidence in suit No: AK/22/60 which evidence ought not to be discountenanced, since the 1st Respondent cannot know the history of the land more than his grandfather. He argued that the historical and traditional evidence of Exhibits F2 and F3 is more plausible in that the presence of the Adegbayimu on the land in dispute and around the land is more correct and believable than the defence of the Respondents particularly when it is clear on Exhibit F2 that 1st Respondent’s family Koti, is not having any boundary with the family land of the Appellants. He submitted, lastly that it is unfortunate that the trial Court failed to attach due weight to Exhibit F2 and F3, which would have resolved the conflicting oral evidence of parties, since parties conceded to the use of them by not objecting to their admission as exhibit, and that this is fatal to the trial Court’s decision. He urged us to resolve this issue for the Appellants.

Reacting, Learned Counsel for the Respondents referred to page 22 of the judgment contained on Exhibit F2 to submit that nowhere in the said judgment was the description of the land allegedly shared among the four families stated and was also not stated in Exhibit F3. Counsel argued that a cursory look at Exhibit F3 showed that the name “Adegbayimu” is not written on it. Counsel then submitted that the learned trial Court was right to have held that Exhibit F2 may have established that Adegbayimu family has land in Odigbo, it has not been shown that this land in dispute is part of the land which the judgment confirmed to be Adegbayimu land. He argued that the trial Court was right to have held that the Appellant ought to have prepared and superimpose a dispute plan on Exhibit F3 to clearly show that the land in dispute falls within the land litigated upon in Exhibit F2. Counsel argued that the submission of the counsel for the Appellants that the Trial Court ought to have taken judicial notice of Exhibits F2 and F3 in its analysis of issues is of no moment since attaching of weight comes after a document has been admitted and during evaluation of evidence vis-à-vis the document admitted. Counsel relied on OB Nig. Plc v. OBC Ltd (2005) 125 LRCN 34 at 66 UJJ, to submit that while logic determines admissibility, weight is a matter of law and some taint of facts, therefore a document can be admitted without the Court attaching any probative value to same. He urged that this issue be resolved against the Appellants and dismiss the appeal for lacking in merit.

RESOLUTION OF ISSUE 2

I am in agreement with the Learned Counsel for the Appellants that rule of relevancy governs the admissibility of documents, but the weight to be attached to an admitted document is entirely a different kettle of fish. This is because, to determine the weight to be attached, the judge will evaluate the document vis a-vis the facts pleaded and proved by other pieces of evidence. Evaluation of evidence goes beyond the realm of logic. It is a matter of law and facts.

I have carefully examined Exhibits F2 and F3 and I am unable to see how they provide the best opportunity to get to the truth of the issues in dispute in this appeal. To be specific, Exhibit F2 is a record of proceedings and judgment in suit No: AK/22/60 between Chief Adegunsoye & Ors v. Isaac Adegoroye & Anor. A careful examination of Exhibit F2, at best discloses that Adegbayimu family is one of the land owning families in Odigbo – a fact that is not in issue in this appeal since the Respondents are not denying that Adegbayimu is a land owning family in Odigbo. But how it resolves the issue of the identity of the land in dispute, the location, size and boundaries, I cannot decipher from the said Exhibit F2. It is pertinent to also point out that Exhibit F2 neither disclosed the location, size and boundaries nor the portion of land shared to Adegbayimu family by Orunsoro. One is at a loss as to how Exhibit F2 that did not demarcate Adegbayimu family land could show the location size and boundary of the land in dispute. I subscribed with the learned trial judge’s reasoning when he concluded at page 281, of the record, Paragraph 2 therein, thus:

“Exhibit F2 may have established that Adegbayimu family has land in Odigbo, it has not been shown that this land in dispute is part of land which the judgment confirmed to be Adegbayimu land.”

A careful perusal of Exhibit F3 show a sketch of land confirmed in Exhibit F2 to belong to the Plaintiffs in Suit No: AK/22/1960 and who were Odigbo Community as a whole and not Adegbayimu family. Again there is nothing in the said Exhibit F3 that show the location, size and boundaries of Adegbayimu family land talkless of the location, size and boundaries of the land in dispute. Appellants should have taken further steps to show that the land in dispute is subsumed in Exhibit F3. Having failed to do that, it is difficult to conclude that the land in dispute actually falls within the land litigated and confirmed in Exhibit F2. Having ruminated this much, this issue is also resolved against the Appellants.

Having resolved the two issues in this appeal against the Appellants, I hold that this appeal lacks merit and is accordingly dismissed. The judgment of Honourable Justice A. O. Akeredolu of High Court of Ondo State, Ore Judicial Division sitting at Ondo delivered on 19th day of December, 2012 in Suit No: HOR/22/2009 is hereby affirmed.

I award cost of N50, 000.00 against the Appellants and in favour of the Respondents.

DANJUMA, JCA

I have been availed the opportunity of reading before now a draft of the judgment just rendered by His Lordship, Ridwan Maiwada Abdullahi, JCA, and I agree entirely with the reasoning and conclusion reached therein by my learned brother that the appeal should fail.

I have perused the lead judgment as articulated and find that my Lord has captured the pith and essence of the appeal, being on whether the identity of the lis in dispute-being a piece of land for which a declaratory order for title and an order of injunction are sought had been made out to merit the grant of those prayers as sought.

The recondite position of the law, nay the trite position, is as captured in the lead judgment relying on a rain/plethora of cases, including Ikyereve V. Ihyambe (2001), FWLR (Pt. 31) 2881 at 2883; Ekpemepolo V. Edremoda (2009) (176) LRCN 235 at 240 – 241 ratio 4 – that in a proof of title to land where a declaration is sought and moreso, an injunctive order, the identity of the land must be precisely proved. This is, imperative, if success must be. A Court cannot make an order in vain without the subject being identifiable and definite.

How may the order be enforced? The judex does not act in vain. The Courts will not permit a speculative litigation without a defined cause of action.

It is for the above reasoning that this Court held in Pastor Karimu & Ors V. Government of Lagos State (2012) 5 NWLR Pt. 1294, page 620 that the identity and clear demarcation by description of land claimed was of utmost importance in an action for declaration of title to land and injunction.

See again, Appeal No. CA/AK/5/2015, Saka Buraimoh (for and on behalf of members of Ufimokun family of Ukere Oke, Akure and Tunde Alejo where I again reiterated the trite stance of the law on the need to supply a clear identity of the land.
Indeed, the bane of many a good case on the claims for declaration of title to land and injunction is the failure or inability of the Claimants to prove the identity of the land claimed with precision, where parties are not ad-idem or the land known to the parties.

The swerving/uncertain identity of the land put forward by the Claimant at the trial Court unfortunately warranted the decision to dismiss the suit. It was rightly done pursuant to our inquisitorial system.

I, therefore, concur with the leading judgment that the case was rightly dismissed. I, too, dismiss the instant appeal and affirm the trial decision, and abide by the consequential order relating to costs as made in the lead.

OGBUINYA, JCA

I had the opportunity to read, in draft, the leading judgment delivered by my learned brother: Ridwan Maiwada Abdullahi, JCA. I endorse, in toto, the reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in it.