LASILE V OGUN

LASILE V OGUN


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

ON THURSDAY, 6TH APRIL, 2017.


APPEAL NO: CA/IB/262/2011

CITATION: CA (2017) 4 LLIR 3

Before Their Lordships

MODUPE FASANMI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A.

NONYEREM OKORONKWO, J.C.A.


BETWEEN

OLOYE OLATOYESE LASILE

(APPELLANTS)

AND

1. ISRAEL OLATUNJI OGUN
2. MR. ADEGOKE ADEWUSI
3. MR. LEKAN SODIPO

RESPONDENTS


PRONOUNCEMENTS

A. APPEAL
1. Appeal–On the nature of appeal; and whether a party is permitted on appeal, to put forward a different case than that canvassed at the court whose decision is appealed against;

Thus, an appeal on the other hand, is an invitation to a higher Court to review the decision of a lower Court, so as to find out whether on proper consideration of the facts and issues, and the applicable law thereon, the lower Court arrived at a correct decision. An appeal is therefore an invitation to the higher to reconsider the ratio decidendi or the reason for the decision of the lower Court so as to see whether, on the facts, issues and the applicable law, the lower Court arrived at a correct decision. That being so, a party must be consistent in the case he presents before the Court, and so must not use the forum of an appeal to introduce into his case, issues which were not before the lower Court and so the lower Court had no opportunity of stating its views on it. It therefore means that an appeal is a challenge against the decision of the lower Court and is basically to be predicated or grounded upon what the lower Court has decided in its judgment and not on what the lower Court has not decided on in its judgment. See Oloruntoba-Oju v. Abdul-raheem (2009) All FWLR (pt.497) p.1; Ogbebor v. Danjuma (2003) 15 NWLR (pt.843) p.403; N.D.I.C. v. S.B.N. Plc (2003) 1 NWLR (pt.801) p.311; Ngige v. Obi (2006) 14 NWLR (pt.999) p.1 and Akpan Udoete v. Heil & Anor (2002) 13 NWLR (pt.783) p.64 at 86. In the case of Mr. Ibibiama F.G. Odom & Ors. v. The People’s democratic Party & Ors (2015) LPELR – 24351 (SC), the Supreme Court, per I.T. Muhammad, JSC said: “…The purpose of an appeal,…is to find out whether on the state of pleadings, evidence and applicable law the Lower Court had come to the right decision in relation to the reliefs canvassed in the matter the Court’s intervention is sought. Indeed, it is not a new action but a continuation of the very dispute in the original action. An Appeal, therefore remains a complaint against a decision arising from the matter in dispute. This explains why a party is not permitted on appeal to change the case he made right from the trial Court otherwise the party would be allowed to appeal against what had not been decided against him. This Court is only empowered to deal with matters duly canvassed at and determined by the Court from which the appeal arises.” PER TSAMMANI, J.C.A. (paras. 60-61) READ IN CONTEXT.

B. EVIDENCE
2. Burden of Proof–On whom lies the burden of proof in civil matters

Thus, in the case of Jack v. Whyte (2001) 6 NWLR (pt. 709) p. 266, Mohammed, JSC (as he then was) held that: “The burden of proof in civil case rests upon the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of the issue. It is an ancient rule founded on consideration of good sense, and it should not be departed from without reasons. It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If, when all the evidence, by whoever introduced, is in, the party who has the burden has not discharged it, the decision must be against him.” Echoing the same principles, My Lord Odili, JSC in the case of Aminu & Ors v. Hassan & Ors (2014) LPELR –22008 (SC) said: “… I would like to reiterate what applies in practice and that is seen in the case of Oyovbare v. Onamurhomu (1999) 10 NWLR (pt.621) 23 at 34 – 35 wherein it was held that the general rule in civil cases is that the burden of proof rests upon the party who substantially asserts the affirmative before the evidence is gone into. The position therefore is that the burden of proof lies on the person who would fail, assuming no evidence had been adduced on either side. Also in respect of particular facts, the burden rests on the party against whom judgment would be given if no evidence were produced in respect of those facts. Once that party produces the evidence that would satisfy the Court then the burden shifts on the party against whom judgment would be given if no more evidence were adduced.” The above cited principles have been reduced into statutory form by virtue of Sections 131, 132 and 133 of the Evidence Act, 2011, which I endeavor to reproduce as follows…. PER TSAMMANI, J.C.A. (paras. 24-25) READ IN CONTEXT.

3. Burden of Proof–The distinction between legal burden of proof and evidential burden of proof

This is because in civil cases, there is always a distinction between ultimate burden of proof and evidential burden. The first burden also referred to as the legal burden is fixed by or is a matter of law, while the second burden also known as the evidential burden is fixed by the pleadings. Accordingly, while the ultimate or legal burden of proof is always static and fixed on the Plaintiff or Claimant, the evidential burden oscillates and thus shifts from one side or the other as disclosed by the pleadings. See S.P.D.C. (Nig.) Ltd v. Emehuru (2007) 5 NWLR (pt. 1027) p. 347 at 372 – 373 Paragraphs D – B per M. D. Muhammad, JCA; Yusuf v. Adegoke (2007) 4 S.C. (pt.1) p. 126; Adedeji v. Oloso (2007) 5 NWLR (pt. 1026) p. 133 at 196 Paragraphs E – G; Agbakoba v. INEC (2008) 18 NWLR (pt. 1119) p. 489 and Agala v. Okusin (2010) 10 NWLR (pt. 1202) p. 412. PER TSAMMANI, J.C.A. (para. 23) READ IN CONTEXT.

4. Evaluation of Evidence–On the rule of law that the trial court has the primary duty of evaluation of evidence and ascribing probative value to them;

Now, the law has always been that the evaluation and ascription of probative or evidential value to the evidence adduced at the trial in any particular case lies primarily at the bossom of the trial Court. This is because, it is at the trial Court that the witnesses testify and documents and other material evidence are tendered and admitted or rejected. The trial Court therefore is placed in the advantage of physically seeing and hearing the witnesses as they testify. He is therefore placed in a position to see and appraise the demeanour of the witnesses as they testify. An appeal Court does not have that advantage as the trial Court, and so relies solely for the appraisal of the evidence on the printed record. That being so, appellate Courts hardly interfere with the evaluation of the evidence by trial Courts, save where the record show that the trial Judge did not avail himself of the advantage it had of seeing and hearing the witnesses. See Odutola v. Sanya (2008) All FWLR (pt.400) p.780 at 797 Paragraphs H – D per I. T. Muhammad, JCA (as he then was); U.B.A. v. B.T.L. Ltd (2005) 10 NWLR (pt.933) p.356; Eyo v. Onuoha & Anor (2011) LPELR – 1873 (SC) and Gawan v. Olomu (2013) LPELR – 20340 (SC) per Muhammad, JSC. PER TSAMMANI, J.C.A. (para. 21) READ IN CONTEXT.

5. Evaluation of Evidence–What amounts to? How properly done? On the need to properly situate the burden of proof before evaluation of evidence

In the case of Alake v. State (1992) 9 NWLR (pt.265) p.260 the Supreme Court held that, evaluation of evidence involves the assessment of evidence so as to give value or quality to it, and that the records must show how the trial Court arrived at its conclusion based upon such evaluation. The evaluation of the evidence must therefore be a demonstration of the relationship or connection between the decision of the Court and the evidence adduced before it, premised on the pleadings of the parties. See Awuse v. Odili (2005) 16 NW R (pt.952) p.416 at 506; Igbodima & 2 Ors v. Obiake & 2 Ors (1976) 9 – 10 S.C. (Reprint) p.108; Momoh & Ors v. Umoru & Ors (2011) LPELR – 8 30 (SC) and Achilihu & Ors v. Anyatonnu (2013) LPELR – 2062 (SC). It is therefore an important factor that in the evaluation of the evidence, the trial Court must appreciate where the burden of proof lies. In other words, the Court must properly situate the burden of proof in order to properly understand where the balance of evidence adduced at the trial should or should not weigh or preponderate. PER TSAMMANI, J.C.A. (para. 22) READ IN CONTEXT.

C. LAND LAW
6. Identification of Land in Dispute–On the burden on a party seeking declaration of title to land to lead cogent evidence to concisely and specifically identify the land in dispute to which his claims relate

Now, the law is now settled that, the first duty of a person claiming declaration of title to land is to identify with certainty the identity of the land he seeks the declaration on. In other words, in an action for declaration of title to land, it is the duty of the Plaintiff to show with certainty the area of land to which the claims relate. The Plaintiff may do that by tendering a Survey Plan of the area he claims, or by description of the land such that a surveyor armed with such description would produce a plan showing accurately the land in dispute and of which title is being claimed. See Baruwa v. Ogunshola (1938) 4 W.A.C.A p.159; Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421) p. 515; Aremu v. Adetoro (2007) 16 NWLR (pt. 1060) p. 244 at 257 Paragraphs D – G; Dada v. Dosunmu (2006) 18 NWLR (pt. 1010) p. 134 and Dauda v. Iba (2007) 2 NWLR (pt. 1018) p. 321. Thus, in the case of Ogedengbe v. Balogun (2007) 3 S.C. (pt.II) p. 71, the Supreme Court held that: “There are various ways of proving the identity of a land in dispute as required by law on the proof for declaration of title to land. In the recent case of Ezukwu v. Ukachukwu (2004) 7 NWLR (pt. 902) 227 at 249, Edozie, JSC stated the requirement of the law and on whom the onus is, thus: “In an action for declaration of title to land, the onus is on the Plaintiff to establish with certainty the identity of the land in dispute to which his claim is related. This, he can do in one of two ways, viz, by oral evidence describing with such degrees of accuracy, the said parcel of land in a manner that will guide a Surveyor in producing a Survey Plan of the said land showing clearly the boundaries.” PER TSAMMANI, J.C.A. (paras. 44-45) READ IN CONTEXT.

7. Identification of Land in Dispute–Whether identification of land in dispute through cogent evidence is required at all times; and when same can be dispensed with;

It is however the law that, the identity of the land will only be in dispute where the Defendant has made it so by his pleading. That being so, where the identity of the land is not disputed, and therefore issues are not joined on it by the pleadings, it will not be necessary to require of the Plaintiff to adduce any evidence or tender a Survey Plan in proof of the exact size, description and the features of the land. See Agundo v. Gberbo (1999) 9 NWLR (pt. 617) p. 71; Otanma v. Youdubagha (2006) 2 NWLR (pt. 964) p. 337 at 354 where Mustdpher, JSC (as he then was) said: “Although a Plaintiff seeking a declaration of title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates, however, the burden will not arise where the identity of the land in dispute does not arise from the pleadings. That is to say, where the Defendant by his pleadings admitted the description, location, features and dimension of the land, in such a circumstance, the identity of the disputed land is not a question in issue and does not require proof.” It therefore means that the identity of the land will only be in issue thus requiring the Plaintiff to adduce evidence in proof thereof, if the parties have joined issues on the identity of the disputed land in the sense that the Defendant has by his pleadings made it so. Otherwise, it will be presumed that the parties are ad idem or are agree on the identity of the land in dispute. See Mani v. Shanono (2006) 4 NWLR (pt.969) p.132; Sanusi & Ors v. Obafunwa & Anor (2006) LPELR – 11863 (CA) per Augie, JCA (as he then was) and Ayuya v. Yonrin (2011) 10 NWLR (pt.1254) p.135. Similarly, where the land in dispute in the pleadings and evidence were known to the parties, or where there is sufficient evidence for the Court to presume or infer the identity of the land, the question of proof of identity of the land in dispute will not be in issue. See Aremu v. Adetoro (supra); Nwakwo v. Ofotama (2009) 11 NWLR (pt.1153) p.496; Dakolo v. Rewane-Dakolo ( 11) 16 NWLR (pt.1272) p.22 and Nwokidu v. Okanu (pt.1181) p.362. PER TSAMMANI, J.C.A. (paras. 47-48) READ IN CONTEXT.

D. PRACTICE AND PROCEDURE
8. Pleadings–On the ultimate importance of pleadings in a proceeding; and whether evidence can be led on facts not pleaded and pronouncements made on same;

It is trite law that cases in the High Courts are determined on the pleadings in the Statement of Claim. The parties to the dispute, and indeed the courts are bound by the pleadings. It therefore means that the parties cannot lead evidence on facts that have not been pleaded nor can the Court make findings or pronounce on an issue that has not been pleaded. Consequently, any evidence led on a fact that has not been pleaded will go to no issue and should therefore be discountenanced. See Dopemu Taiwo Adeyeri & Ors. v. Akinbode Okobi & Ors (1997) LPELR – 8055 (SC); Awoyegbe v. Ogbeide (1988) NWLR (pt.73) p.695; Amodu v. The Commandant P.C; Maiduguri (2009) 15 NWLR (pt.1163) p.75 and Arjay Ltd v. A.M.S. Ltd (2003) 7 NWLR (pt.820) p.577. Thus in the case of Christiana I. Yare v. National Salaries, Wages and Income Commission (2013) LPELR –20520 (SC), Galadima, JSC said: “It is well settled law that the parties and, indeed the Court, are bound by the pleadings filed and exchanged. If facts needed to establish a right to relief are to be relevant, they have to be pleaded by the party seeking to rely on same to establish his claim or right to relief. It is after the relevant fact is pleaded that evidence would be admissible to establish the existence of the fact. That is why it is trite law that evidence on facts not pleaded goes to no issue, because parties normally join issues on the facts pleaded and only need evidence either oral or documentary to establish the facts so pleaded….” PER TSAMMANI, J.C.A. (paras. 59-60) READ IN CONTEXT.


LEAD JUDGEMENT DELIVERED BY TSAMMANI, J.C.A.


  1. This appeal is against the judgment of the Ogun State High Court sitting at Abeokuta, delivered on the 16th day of June, 2011 in Suit No: AB/72/2010.
  2. The Appellant in this case, who was the Plaintiff in the Court below took out a Writ of Summons together with a Statement of Claim against the Respondents. The said Writ of Summons and Statement of Claim were subsequently amended by leave of Court. The suit was then heard on the Appellant’s Further Amended Statement of laim dated the 26/4/2010 and filed on the 21/7/2011, Statement of Defence and Counter-Claim dated and filed on the 15/6/2010 and Amended Reply to Statement of Defence and Defence to Counter-Claim dated the 26/4/2010 and filed on the 21/01/2011. By Paragraph 13 of the Further Amended Statement of Claim, the Plaintiff/Appellant claimed as follows:
  3. (a) A declaration that the Defendants and or their privies howsoever have no interest whatsoever on the piece or parcel of land measuring approximately 928.452 Sq. metres covered by Survey beacons GBM 2861, GBM 2862, GBM2031, GBM 2030 and GBM 2865 marked Plot A on Survey Plan No. BAG 776 A & B dated 11/8/87 and drawn by one Surveyor Oyebanji Akinhanmi licensed Surveyor attached to the Certificate of Occupancy with No. 00014882 registered as No.1 at page 1 in Volume 366 (Certificate of Occupancy) of the Lands Registry in the office at Abeokuta.(b) An order of perpetual injunction restraining the Defendants either by themselves, agents, servants and or privies from further trespassing on the aforestated land.
  4. Upon being served, the Defendants/Respondents filed a Statement of Defence denying the Plaintiff/Appellant’s claims and also Counter-Claimed as follows:1. One Million Naira (N1,000,000.00) being damages for trespass committed by the Defendant when he unlawfully entered the Counter-Claimants land situate, lying and being at Abule Otun Lafenwa, Abeokuta, known as African Petroleum (A.P.) filing station, Lafenwa Abeokuta and committed acts of trespass thereon.2. An order setting aside the Certificates of Occupancy registered as No. 40 at page 40 of the Bureau of Lands Registry, Abeokuta and Certificate of Occupancy with No.1 at page 1 in Volume 366 (Certificate of Occupancy) of the Lands Registry, Abeokuta which the Claimant/Defendant to Counter Claim illegally obtained in order to lay false claims on the Defendant/Counter-Claimants property.

    3. Perpetual injunction restraining the Claimant/defendant to Counter-claim by himself, his agents, privies or servants from committing further acts of trespass on the Counter-Claimants’ land described above.

  5. The question that necessitated determination in the lower Court came to be; as between the Appellant and the Respondents, who has a better title to the land in dispute. The parties, especially the Appellant and the 2nd and 3rd Respondents traced the root of their title to one Chief (Pa) James Williams Adewusi, who in his lifetime owned several landed properties including a large expanse of land at Abule Otun (Lafenwa), Abeokuta. That upon his death, his children inherited his landed properties under native law and custom. The land in dispute forms a part of the large expanse of land at Abule Otun (Lafenwa). The Plaintiff/Appellant is the son of Mrs. Felicia Lasile (nee Adewusi), one of the daughters of Pa. James Williams Adewusi, while the 2nd and 3rd Respondents are also grandchildren of the said Pa. James Williams Adewusi.
  6. The Appellant claimed that the land in dispute was inherited by his mother, Mrs. Felicia Lasile (Nee Adewusi) from his maternal grandfather Pa. James Williams Adewusi. That the said Mrs. Felicia Lasile (Nee Adewusi) and her sisters carried out several acts of ownership over the land in dispute such as, obtaining a Certificate of Occupancy (C of O) with No. 00014882 registered as No.1 in page 1 of Volume 366 at the Lands Registry in the office at Abeokuta and dividing same into two portions and leasing them to African Petroleum (A.P.) Ltd and Mobil Oil Nigeria Ltd. That upon the demise of his mother (Mrs. Felicia Lasile) and her sisters, and being the only male child, he was mandated to and did obtain Letters of Administration which was resealed on the 21/3/2015. The Appellant then contended that he has since been in effective possession and control over the said land which is in dispute, until on or about the 13/4/2010 when he received information that the Defendants/Respondents had trespassed onto the land and were showing same to prospective buyers.
  7. The 2nd and 3rd Respondents on their part contended that all the landed properties of Pa. James Williams Adewusi, including the land in dispute had been partitioned among his children by the Igbore Chiefs, and that each stock knew the land partitioned to it and immediately took possession thereof. That their parents, a male and a female (named Olu and Rachael) were apportioned the portion of land now in dispute. That their parents, Olu and Rachael jointly executed a Deed of Leasehold of the land in dispute in favour of VYB Ltd, and that VYB later assigned their holding to BP (West Africa) Ltd which later became BP (Nigeria) Ltd. That Olu died in 1975 and was survived by his sister Rachael Shodipo (Nee Adewusi), and that in 1980, Rachael executed a Deed of Leasehold Agreement in favour of AP (Nig.) Ltd for a period of twenty (20) years. That upon the demise of Rachael the land was inherited by the 2nd and 3rd Respondents.
  8. It is also the case of the 2nd and 3rd Respondents that, when Rachael Adewusi was alive, the trio of Dorcas Sodeinde, Felicial Lasile (Appellant’s mother) and one other sued her (Rachael Adewusi) in the Grade 1 Customary Court, Ake, Abeokuta, seeking, inter alia, possession of the land. However, that the matter was struck out on appeal to the High Court. That, the Appellant, his mother (Felicial Lasile) and her sisters, took advantage of the Customary Court judgment to lay false claim to the property. That, it was in the process that the Appellant prepared a new Survey Plan covering both the AP Filling Station owned by the Respondents and the Mobil Oil Filing Station in order to obtain the Certificate of Occupancy (Exhibit “A”), and that this fact only came to the knowledge of the 2nd and 3rd Respondents when this suit was instituted.
  9. For the 1st Respondent, it was contended that, his family own a portion of the land in dispute. That his family had bought a parcel of land from the late Adegbite Sobo, abutting that of the 2nd and 3rd Respondents. That when AP Ltd obtained the leasehold of the 2nd and 3rd Respondents’ land, it was discovered that it was not sufficient for the project, so a lease agreement was also signed with AP Ltd for a portion of the 1st Respondent’s family land which was then merged with that of the 2nd and 3rd Respondents to build the Filling Station i.e. AP Filling Station.
  10. At the hearing, the Appellant testified and tendered three Exhibits marked as Exhibits “A”, “B” and “C” but called no other witness. The Respondents also testified as PW1, PW2 and PW3, and also tendered seven (7) exhibits which were marked as Exhibits “D1”, “D2”, “D3”, “D4”, “D5”, “D6” and “D7”. The Respondents also did not call any other witness. At the close of the evidence, both counsel filed and exchanged Written Addresses and in a well-considered judgment delivered on the 16th day of June, 2011, the learned trial Judge dismissed the Plaintiff/Appellant’s claims and also gave judgment to the Respondents on part of their Counter-Claim. The Appellant was dissatisfied with the decision of the trial Court and has now filed this appeal.
  11. The Original Notice of Appeal which is at pages 239 – 242 of the Record of Appeal, was dated and filed on the 27/6/2011. However, by order of this Court granted on the 12/5/2015, the Appellant was granted leave to amend the said Notice of Appeal. This appeal was thus heard on the Amended Notice of Appeal which is undated but filed on the 23/2/2015 and deemed filed and served on the 12/5/2015. Upon that Amended Notice of Appeal, the parties filed and served their Briefs of Arguments.
  12. The Appellant’s Brief of Arguments was dated the 26/4/2016 and filed on the 12/5/2016 but deemed filed on the 11/7/2016. Therein, five (5) issues were distilled for determination as follows:1. Whether the learned trial Judge correctly identified the party who bore the burden of proof and whether the trial Judge in the circumstances appraised the evidence on a correct premise.2. Whether the Defendants/Counter Claimants satisfactorily discharged the onus and burden of proof placed on them, considering their failure to file any Counter Survey Plan to relate the parcels of land described in their title documents to the land covered by Certificate of Occupancy relied upon by the Claimant.

    3. Whether the Defendants/Counter Claimants in any event had any recognizable interest in the land after the death of their parents, in the absence of any letters of Administration.

    4. Whether the learned trial Judge was justified in setting aside the Claimant’s Certificate of Occupancy and granting an injunction against him after holding that the Defendants had divested themselves of whatever interest they held in the land in dispute.

    5. Whether the admission by the Defendants that they had divested themselves of any interest in the land did not reinforce the Claimant’s claim thereby entitling him the judgment of the Court.

  13. The Respondents’ Brief of Arguments was dated the 06/10/2016 and filed on the 07/10/2016 but deemed filed on the 17/10/2016. Therein, the Respondents adopted the issues formulated by the Appellant as the issues to be determined in this appeal. I shall therefore determine this appeal on the issues formulated by the Appellant, and in doing so, I shall take the issues seriatim. I shall also refer to the Appellant’s Reply brief dated the 5/12/16 and filed on the 07/12/16 but deemed filed on the 22/2/17, if need be.
  14. Now, arguing on issue one(1), learned senior counsel for the Appellant contended that the learned trial Judge did not correctly locate and apply the onus and burden of proof in this case. That this stemmed from the fact that the learned trial Judge failed to appreciate the fact that the relief sought by the Claimant was couched in negative terms. That in such a case, the burden of proof shifts to the Defendant to prove the affirmative of the issue. Refering to the first claim of the Appellant, learned counsel cited the case of Opeola v. Falade (1991) 2 NWLR (pt.173) p.303 at 311, to submit that the learned trial Judge did not evaluate the evidence bearing in mind that the Appellant framed his relief in negative terms and that this affected the decision against the Appellant.
  15. Learned Senior Counsel for the Appellant went on to submit that the non appreciation of where the onus of proof lay in this case led the learned trial Judge to observe at page 226 of the Record of Appeal that:“The claim of the Claimant is a declaration that the Defendants and their privies have no interest whatsoever in Plot A of Exhibit “A”. As stated by counsel to the Defendants which I also agree with that this is an unusual relief.”
  16. It was then submitted that, after remarking that the relief as couched by the Appellant was unusual, the learned trial Judge still found that the Appellant (Claimant) bore the onus and burden of proof. That, the learned trial Judge was therefore wrong in placing the onus of proof on the Appellant given the nature of the relief claimed. That, the Respondents had compounded the situation by filing a Counter Claim couched in positive terms, and that by so doing the Respondents had taken up the burden of proving that their land was within the land in dispute and that they have a recognizable interest in the land in dispute to the exclusion of the Appellant. It was then submitted that, it was the failure of the learned trial Judge to properly situate the onus of proof that led him to inadequately view the case of the Appellant thereby leading to a miscarriage of justice.
  17. In response, learned counsel for the Respondents contended that, from the Record of Appeal, especially at page 226 thereof, it is clear that the learned trial Judge appreciated the manner the Appellant’s relief was couched, and thereby observed that:-“… there is however no doubt particularly having regard to the pleadings and evidence of the parties that the title of the parties to the land in dispute is what is primarily on issue in this case.”
  18. That, the learned trial Judge was able to identify the real issue in controversy between the parties by considering the pleadings and evidence of the parties and thus properly situated the burden of proof. That the learned trial Judge did not place the burden of proof on the Appellant but merely appraised the evidence before coming to a conclusion on the matter. Learned Counsel then referred to the Respondents’ pleadings at pages 56 and 59 of the Record of Appeal and the testimony of the Respondents to further submit that the findings of the trial Court are not perverse and did not place the burden of prove on the Claimant as contended by learned Senior Counsel for the Appellant. Learned Counsel then cited the case of Adegoke v. Adibi (1992) 5 NWLR (pt. 242) p. 410 at 423 to submit that, in any case, the law is that the onus of proof in a civil case is not static, and that, the moment the party who has the initial burden discharges the onus on him, the onus will shift to the other party to adduce evidence in rebuttal. That, going by the records, it is clear that the learned trial Judge took an adequate view of the Appellant’s case before arriving at a decision in the matter.
  19. In reply on points of law, learned counsel (silk) for the Appellant insisted that the learned trial Judge misconceived and misplaced the onus of proof. That the learned trial Judge had observed at page 236 of the Record of Appeal that:“The onus of proof is on him in the particular circumstances of this case and from the pleadings to prove the title of the land in dispute to the exclusion of the Defendants.”
  20. It was then contended that from the above statement of the trial Court, the learned trial Judge misplaced the initial onus of proof, which he confessed as “unusual”. That the trial Court was not guided by the decision of this Court in the case of Opeola v. Fatade (1991) 2 NWLR (pt. 173) p. 303 and thereby proceeded on the routine basis of placing the initial burden of proof on the Plaintiff. The cases of Sanusi v. Ameyogun (1992) 4 NWLR (pt.237) p.527; Onobruchere v. Esegine (1986) 1 NWLR (pt.19) p.799 and Sandy v. Hotogua 14 W.A.C.A. p.18 were then cited to submit that the misplacement of the burden of proof resulted in an improper evaluation of the evidence presented at the trial, and thus leading to a miscarriage of justice against the Appellant.
  21. Now, the law has always been that the evaluation and ascription of probative or evidential value to the evidence adduced at the trial in any particular case lies primarily at the bossom of the trial Court. This is because, it is at the trial Court that the witnesses testify and documents and other material evidence are tendered and admitted or rejected. The trial Court therefore is placed in the advantage of physically seeing and hearing the witnesses as they testify. He is therefore placed in a position to see and appraise the demeanour of the witnesses as they testify. An appeal Court does not have that advantage as the trial Court, and so relies solely for the appraisal of the evidence on the printed record. That being so, appellate Courts hardly interfere with the evaluation of the evidence by trial Courts, save where the record show that the trial Judge did not avail himself of the advantage it had of seeing and hearing the witnesses. See Odutola v. Sanya (2008) All FWLR (pt.400) p.780 at 797 Paragraphs H – D per I. T. Muhammad, JCA (as he then was); U.B.A. v. B.T.L. Ltd (2005) 10 NWLR (pt.933) p.356; Eyo v. Onuoha & Anor (2011) LPELR – 1873 (SC) and Gawan v. Olomu (2013) LPELR – 20340 (SC) per Muhammad, JSC.(back to top?)
  22. In the case of Alake v. State (1992) 9 NWLR (pt.265) p.260 the Supreme Court held that, evaluation of evidence involves the assessment of evidence so as to give value or quality to it, and that the records must show how the trial Court arrived at its conclusion based upon such evaluation. The evaluation of the evidence must therefore be a demonstration of the relationship or connection between the decision of the Court and the evidence adduced before it, premised on the pleadings of the parties. See Awuse v. Odili (2005) 16 NW R (pt.952) p.416 at 506; Igbodima & 2 Ors v. Obiake & 2 Ors (1976) 9 – 10 S.C. (Reprint) p.108; Momoh & Ors v. Umoru & Ors (2011) LPELR – 8 30 (SC) and Achilihu & Ors v. Anyatonnu (2013) LPELR – 2062 (SC). It is therefore an important factor that in the evaluation of the evidence, the trial Court must appreciate where the burden of proof lies. In other words, the Court must properly situate the burden of proof in order to properly understand where the balance of evidence adduced at the trial should or should not weigh or preponderate.(back to top?)
  23. This is because in civil cases, there is always a distinction between ultimate burden of proof and evidential burden. The first burden also referred to as the legal burden is fixed by or is a matter of law, while the second burden also known as the evidential burden is fixed by the pleadings. Accordingly, while the ultimate or legal burden of proof is always static and fixed on the Plaintiff or Claimant, the evidential burden oscillates and thus shifts from one side or the other as disclosed by the pleadings. See S.P.D.C. (Nig.) Ltd v. Emehuru (2007) 5 NWLR (pt. 1027) p. 347 at 372 – 373 Paragraphs D – B per M. D. Muhammad, JCA; Yusuf v. Adegoke (2007) 4 S.C. (pt.1) p. 126; Adedeji v. Oloso (2007) 5 NWLR (pt. 1026) p. 133 at 196 Paragraphs E – G; Agbakoba v. INEC (2008) 18 NWLR (pt. 1119) p. 489 and Agala v. Okusin (2010) 10 NWLR (pt. 1202) p. 412. (back to top?)
  24. Thus, in the case of Jack v. Whyte (2001) 6 NWLR (pt. 709) p. 266, Mohammed, JSC (as he then was) held that:“The burden of proof in civil case rests upon the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of the issue. It is an ancient rule founded on consideration of good sense, and it should not be departed from without reasons. It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If, when all the evidence, by whoever introduced, is in, the party who has the burden has not discharged it, the decision must be against him.”

  25. Echoing the same principles, My Lord Odili, JSC in the case of Aminu & Ors v. Hassan & Ors (2014) LPELR –22008 (SC) said:“… I would like to reiterate what applies in practice and that is seen in the case of Oyovbare v. Onamurhomu (1999) 10 NWLR (pt.621) 23 at 34 – 35 wherein it was held that the general rule in civil cases is that the burden of proof rests upon the party who substantially asserts the affirmative before the evidence is gone into. The position therefore is that the burden of proof lies on the person who would fail, assuming no evidence had been adduced on either side. Also in respect of particular facts, the burden rests on the party against whom judgment would be given if no evidence were produced in respect of those facts. Once that party produces the evidence that would satisfy the Court then the burden shifts on the party against whom judgment would be given if no more evidence were adduced.”
  26. The above cited principles have been reduced into statutory form by virtue of Sections 131, 132 and 133 of the Evidence Act, 2011, which I endeavor to reproduce as follows:(back to top?)“131.(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.(2). When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

    132. The burden of proof in a suit or proceedings lies on the person who would fail if no evidence at all were given on either side.

    133. (1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

    (2). If the party referred to in Sub-section (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence was adduced, and so on successively, until all the issues in the pleadings have been dealt with.

    (3). Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”

  27. It would be seen therefore, that the above provisions of the Evidence Act summarise and enact in statutorily form, the onus or burden of proof in civil cases. Sections 131 and 132 provide for the legal or ultimate or legal burden of proof. It would be seen that the legal onus as stipulated in Sections 131 and 132 of the Evidence Act, 2011 is static and is always fixed on the Plaintiff or Claimant, who would fail or the judgment of the Court would be against him, if no evidence at all were led in the case by either party. It is so because; he (Plaintiff) is the person who has approached the Court, seeking the Court to give him judgment dependent on facts which he has asserted. It is true that, generally the law casts the burden on the person who asserts the affirmative of an issue and not a negative assertion. I have read the case of Opeola v. Falade (supra) cited and relied on by the learned counsel for the Appellant. Certainly in that case, the claim before the trial Court, just like in this case was in the negative as follows:“Declaration that the Defendants’ families are not members of Opeola family of Iroko in Akinyele Local Government Area…”
  28. This court on appeal, did find that the claim as couched, was an negative assertion and therefore the burden of proving the contrary, which (was a positive averment) shifted to the Defendants/Respondents. This Court however found that the Defendants/Respondents had accepted the challenge and proceeded to tender several documents to rebut the negative averment of the Plaintiff/Appellant. This Court, at page 312 Paragraph C of the judgment in Opeola v. Falade (supra) then found and held that:“There were so many other documents tendered, all of which provided a complete answer to the Appellants’ case.”
  29. This Court then concluded on the issue at Paragraph F of page 312 of the case that:“I must say that I entirely share the same feelings as the learned trial Judge in this regard. If all the above exhibits do not provide convincing evidence that both Appellants and the Respondents belong to the same Onikoro family I do not know in which other way the Appellants expect them to do so.”
  30. So also in the instant case, the Respondents apart from, filing a Counter-Claim against the Appellant’s Claims, led both oral and documentary evidence to rebut or answer to the claim(s) of the Appellant, the first of which was in a negative form. In determining the issue the learned trial Judge began by stating in page 226 of the Record of Appeal as follows:“A close study of the issues formulated on behalf of the Claimant for resolution in my view revolves around who out of the contending parties has a better title to the land in dispute.”
  31. The learned trial Judge then appreciated the peculiar nature of the Appellant’s first claim, when he observed in the same page 226 of the records as follows:“The claim of the Claimant is a declaration that the Defendants and their privies have no interest whatsoever in Plot A of Exhibit “A”. As stated by Counsel to the Defendants which I also agree with this is an unusual relief. There is however no doubt particularly having regard to the pleadings and evidence of the parties that the title of the parties to the land in dispute is what is primarily in issue in this case.”
  32. It is clear to me that by agreeing with the observation of learned counsel for the Respondents that the Appellants claim one (1), is “an unusual relief”, shows clearly that the learned trial Judge did not lose sight of the fact that the Appellant’s first claim is (was) in the negative form. To resolve the issue therefore, the learned trial Judge took into consideration the entire oral and documentary evidence led by both parties in coming to a conclusion in this matter. The learned trial Judge only found that from the totality of the evidence adduced at the trial, what was in issue between the parties, boiled down to the issue of who among them has a better title to the land in dispute. To resolve the issue therefore, the learned trial Judge held at the same page 226 of the records that:“The law is well settled that when the issue is as to which of the two Claimants has a better right to the possession or occupation of a piece or parcel of land in dispute the law will ascribe such possessions to the person who proves a better title thereto.”
  33. It should be noted that there is no appeal against those findings of the learned trial Judge. It means therefore that those findings are deemed correct or duly established. In other words, it is deemed established that the issue in this case boils to as to the Appellants and the Respondents, who has a better title.
  34. Now, as required by Sections 131 and 132 of the Evidence Act, the legal burden of proof rested on the Appellant in respect of his claim, as he was bound to fail, if no evidence at all were led at all on either side to the dispute. Similarly, the Respondents had the legal or ultimate onus of proving their Counter Claim. The Appellant however first had the burden of adducing evidence in prove of the “non-existence” of the facts he relied on in making his negative assertion as the judgment of the Court would be against him if he led no evidence at all. See Section 133(1) of the Evidence Act, 2011. It does not mean that by making the negative assertion, the Appellant would fold his arms and lead no iota of evidence on his pleadings in the Statement of Claim. It is after he has led some evidence that the burden would shift on the Respondents to lead evidence in order to rebut the negative averment of the Appellant. The trial Court would then weigh such evidence, one on each side of the imaginary scale of justice, before coming to a decision, one way or the other. Reading through the whole judgment subject of this appeal, that is what the learned trial Judge did. I am thus of the view and do hold that the learned trial Judge made the correct findings and rightly situated the burden of proof in this case. The learned trial Judge was therefore right, in view of Section 131(1) & (2) of the Evidence Act, 2011, when he held at page 230 lines 3 – 7 of the records that:
  35. “With these rebuttal by Defendants, the onus shifts on the Claimant to satisfy this Court on the validity of the title of his mother from whom he claims he derived his title. The onus of proof is on him in the particular circumstances of this case and from the pleadings to prove the title of the land in dispute to the exclusion of the Defendants. This is because the Claimant’s root of title has been put in issue by the Defendants.”
  36. Accordingly, this issue is resolved against the Appellant.
  37. On issue two (2), learned counsel for the Appellant contended that, given the state of the pleadings, it was incumbent on the Respondents to show that the land being claimed by them fell within the land in dispute. That to do so, they were obligated to call a surveyor to relate their landed property to that claimed by the Appellant. That the Respondents failed to do that but the trial Court proceeded by way of conjecture rather than on hard evidence, to hold that a portion of land occupied by AP Ltd belonged to the 1st Respondent while the larger portion belonged to the 2nd and 3rd Respondents, solely on the basis of Exhibit “D5”.
  38. That no lease agreement nor a survey plan was tendered to show the location of the two parcels of land of the 1st Respondent on one hand and that of the 2nd and 3rd Respondents on the other hand. Learned Counsel then referred to the finding of the trial Court in page 227 lines 11 – 13 of the Record of Appeal, to submit that the findings of the trial Court on the relationship between the parcels of land in contention is puzzling because it runs contrary to the claim that the portions of the land in dispute were separately owned by the families of the 1st Respondent and the 2nd and 3rd Respondents. That it is so because, the land leased to VYB was wholly the land which the 2nd and 3rd Respondents claimed they inherited through their parents; and that the 1st Respondent’s family never owned any part of the land leased to VYB Ltd, and therefore, if the land leased to VYB Ltd is the same as the land in dispute, then the 1st Respondent’s family land must be outside the land in dispute.
  39. Learned Counsel for the Appellant also referred to the remark of the learned trial Judge at page 229 of the records, to contend that based on that remark of the learned trial Judge, it is difficult to say where the land belonging to the 1st Respondent is and where that of the 2nd and 3rd Respondents is located. That it is difficult to ascertain where the separate lands of Respondents are within the land covered by the Certificate of Occupancy No: 00014882. Learned Counsel for the Appellant then submitted that the learned trial Judge overlooked the fact that, not only did the onus of proof fall on the Respondents, having filed a Counter-Claim they had the burden of relating the location of their land to that covered by the Certificate of Occupancy. Furthermore, the holding of the learned trial Judge that the land in dispute is the same land covered by the lease agreement between the 2nd and 3rd Respondents and VYB (Exhibit “D2”), the learned trial in another breath held that the land of the 1st Respondent was part of the land in dispute. The case of Obi & Ors v. Ozor (1991) 9 NW R (pt.213) p.94 at 165 was then cited to submit that in the circumstances, the Respondents were bound to produce a Counter Survey Plan and to call a Surveyor to locate their land within the framework of the land in dispute as defined and delineated in Exhibit “A”. The case of Okwara v. Okwara (1997) 11 NWLR (pt. 527) p. 160 at pp. 168-169 Paragraphs F – B was also cited in support.
  40. The response of learned counsel for the Respondents is that, the land in dispute is well known to the parties in dispute. Learned Counsel referred to relief one (1) in the Respondents’ Counter-Claim to contend that it is clear that the Respondents are claiming the land occupied by A. P. Filling Station. We were urged to look at Exhibits “A” and “B”, where it would be clear that the Plans in the said Exhibits “A” and “B” are the same. That in Exhibit “B”, Plot A is African Petroleum (AP) Ltd, while Plot A is not mentioned in Exhibit “A” because Exhibit “A” is a Certificate of Occupancy. That, apart from the pleadings of the parties which show that the parties are ad idem as regards the identity of the land in dispute, the testimony of the parties reveal that they all know the land in dispute.
  41. Learned Counsel for the Respondents went on to submit that, the finding of the learned trial Judge that the land claimed by the Appellant is the same as that claimed by the Respondents is correct, and that the land in dispute is the former A.P. Filling Station, Abeokuta which land is known by both parties. The case of Odofin v. Oni (2007) FWLR (pt.36) p.807 at 818 was then cited to submit that, where parties to the dispute know the identity of the land, the question of identity of the land will no more be in issue. On the issue of the portion of the land owned by the 1st Respondents family, learned counsel for the Respondents referred to Paragraph 19 of the Statement of Defence and Counter-Claim, Written Statement of the 1st Respondent and Exhibits “D5” and “D6” to submit that, there was no need to call a Surveyor to give evidence in respect of a parcel of land which is known to all the parties. Furthermore, that Exhibit “D5” which is a letter emanating from A. P. Management confirms that the family of the 1st Respondent and the 2nd and 3rd Respondents own the land occupied by A.P. Ltd.
  42. Learned Counsel for the Respondents also submitted that, the contention of the Appellant that the Respondents are supposed to file a Counter-Plan is also misconceived. That, there is evidence that the land of the 2nd and 3rd Respondents abuts that of the 1st Respondent which was taken by the A.P Management with that of the 2nd and 3rd Respondents in order to build the A.P Filling Station. It was therefore contended that from the pleadings and evidence led at the trial, all the parties know the real identity of the land in dispute. Furthermore, that the Appellant did not raise the issue of identity of the land in dispute, in his pleading and evidence before the trial Court. The cases of Fatuade v. Onwoamanai (1990) 2 NWLR (pt. 132) p.322 and Alhaji Odumosu & Anor v. Oluwole & Anor (2004) FWLR (pt.191) p.1628 at 1659 was cited in support and to urge us to resolve this issue against the Appellant.
  43. Replying on points of law, learned counsel for the Appellant contended that from the state of the pleadings, the onus was on the Respondents to show that the land on which the A.P Filling Station was built is exactly the same land as that covered by the Certificate of Occupancy. That, the evidence on record shows that the measurements of the parcels of land on the Survey Plans relied on by the parties differ. The case of Yoye v. Olubode & Ors (1974) N.S.C.C. p.405 at 411 was then cited to further submit that in the circumstances, there was the necessity for a Surveyor to be called to correlate the land described in the Survey Plans tendered in the case. That having tied their claims for declaration to a particular Certificate of Occupancy with specific beacon numbers, the Respondents ought to have called a Surveyor to correlate the several Plans attached to the different title documents relied on to support their claim to title.
  44. Now, the law is now settled that, the first duty of a person claiming declaration of title to land is to identify with certainty the identity of the land he seeks the declaration on. In other words, in an action for declaration of title to land, it is the duty of the Plaintiff to show with certainty the area of land to which the claims relate. The Plaintiff may do that by tendering a Survey Plan of the area he claims, or by description of the land such that a surveyor armed with such description would produce a plan showing accurately the land in dispute and of which title is being claimed. See Baruwa v. Ogunshola (1938) 4 W.A.C.A p.159; Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421) p. 515; Aremu v. Adetoro (2007) 16 NWLR (pt. 1060) p. 244 at 257 Paragraphs D – G; Dada v. Dosunmu (2006) 18 NWLR (pt. 1010) p. 134 and Dauda v. Iba (2007) 2 NWLR (pt. 1018) p. 321. Thus, in the case of Ogedengbe v. Balogun (2007) 3 S.C. (pt.II) p. 71, the Supreme Court held that:
  45. “There are various ways of proving the identity of a land in dispute as required by law on the proof for declaration of title to land. In the recent case of Ezukwu v. Ukachukwu (2004) 7 NWLR (pt. 902) 227 at 249, Edozie, JSC stated the requirement of the law and on whom the onus is, thus: “In an action for declaration of title to land, the onus is on the Plaintiff to establish with certainty the identity of the land in dispute to which his claim is related. This, he can do in one of two ways, viz, by oral evidence describing with such degrees of accuracy, the said parcel of land in a manner that will guide a Surveyor in producing a Survey Plan of the said land showing clearly the boundaries.”(back to top?)
  46. The best way of establishing the identity of the land claimed, is to tender a Survey Plan of the land showing with clarity the boundaries thereof.
  47. It is however the law that, the identity of the land will only be in dispute where the Defendant has made it so by his pleading. That being so, where the identity of the land is not disputed, and therefore issues are not joined on it by the pleadings, it will not be necessary to require of the Plaintiff to adduce any evidence or tender a Survey Plan in proof of the exact size, description and the features of the land. See Agundo v. Gberbo (1999) 9 NWLR (pt. 617) p. 71; Otanma v. Youdubagha (2006) 2 NWLR (pt. 964) p. 337 at 354 where Mustdpher, JSC (as he then was) said:
    “Although a Plaintiff seeking a declaration of title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates, however, the burden will not arise where the identity of the land in dispute does not arise from the pleadings. That is to say, where the Defendant by his pleadings admitted the description, location, features and dimension of the land, in such a circumstance, the identity of the disputed land is not a question in issue and does not require proof.”(back to top?)

  48. It therefore means that the identity of the land will only be in issue thus requiring the Plaintiff to adduce evidence in proof thereof, if the parties have joined issues on the identity of the disputed land in the sense that the Defendant has by his pleadings made it so. Otherwise, it will be presumed that the parties are ad idem or are agree on the identity of the land in dispute. See Mani v. Shanono (2006) 4 NWLR (pt.969) p.132; Sanusi & Ors v. Obafunwa & Anor (2006) LPELR – 11863 (CA) per Augie, JCA (as he then was) and Ayuya v. Yonrin (2011) 10 NWLR (pt.1254) p.135. Similarly, where the land in dispute in the pleadings and evidence were known to the parties, or where there is sufficient evidence for the Court to presume or infer the identity of the land, the question of proof of identity of the land in dispute will not be in issue. See Aremu v. Adetoro (supra); Nwakwo v. Ofotama (2009) 11 NWLR (pt.1153) p.496; Dakolo v. Rewane-Dakolo ( 11) 16 NWLR (pt.1272) p.22 and Nwokidu v. Okanu (pt.1181) p.362.(back to top?)
  49. Now, in the instant case, there was the Appellant’s claim and the Respondents’ Counter-Claim. Looking at the respective claims of the parties, it is clear that none of the parties specifically sought for a declaration of title to the land in dispute. However, the learned trial Judge made his findings and came to the conclusion that, having regard to the pleadings and evidence of the parties title of the parties to the land has been put in issue; and that he would ascribe title and thus right to possession of the land on the party who is able to prove that he has a better title. The learned trial Judge also recognized the need for proof of identity of the land claimed by the respective parties, when he observed at page 227 lines 2 – 5 of the Record of Appeal as follows:“Also in a claim of this nature the primary duty of the Claimant is to prove clearly and unequivocally the precise area to which the claim relates. But that burden will not arise where the identity of the land in dispute was never a question in issue as that issue will only arise where the Defendant raises it in his Statement of Defence.”
  50. The learned trial Judge then found at page 227 lines 7 – 13 of the Record of Appeal as follows: “From the pleadings of the parties and the testimony of the witnesses who are all parties to this action, the land in dispute is the portion of land which African Petroleum Filling Station was operating. The Claimant under Cross-Examination stated “The dispute is in respect of the AP Station which is the land in dispute. The 2nd Defendant who testified as DW1 also stated under Cross- Examination “the land in dispute is the land African Petroleum was …. the land leased to VYB Ltd is not different from the land in dispute.”
  51. The learned trial Judge went on to hold at page 227 lines 18 – 228 line 10 as follows:“Claimant counsel’s contention that the land in dispute is not the same as that lease to VYB in 1957 was based on the fact that from a cursory examination of the Survey Plans attached to Exhibits “A” and “D2”, the two plans are different in shape. I am not in agreement with Counsel’s line of argument as neither from the pleadings nor the evidenced adduced was the Claimant able to prove that the land he is claiming is not the same as that which was leased to VYB Ltd in 1957.
  52. Exhibit “D2” contained only the portion of land partitioned to some of late Chief Adewusi’s Children, whilst that of Exhibit “A” Plot A comprises of the land in Exhibit “D2” and Exhibit “D6”. During Cross-Examination, 1st Defendant who is DW3 stated “AP leased a portion of land from my family. It was a separate lease agreement from that of my family. Exhibit “D6” is the lease agreement. With respect to the lease, AP paid until 2013 but they pulled out abruptly in 2009 but I don’t know why.” Having been in agreement that the land in dispute is the one on which AP occupies, it means Exhibit “D5” is a confirmation that the land in dispute is owned by more than one family.”
  53. I have also perused the pleadings of the parties in this case and the evidence led in support. The land contended by the Appellant is said to be that attached to the Certificate of Occupancy tendered in evidence as Exhibit “A” and also evidenced by the Survey Plan No. BAG 776A & B dated the 11/8/87 drawn by one Surveyor Oyebanji Akinhanmi and it is in evidence as Exhibit “B”. A cursory look at the Plan attached to Exhibit “A” and Exhibit “B” would show that they are exactly the same, and therefore one and the same document. It is instructive to note that the Appellant pleaded in Paragraph 4 of the Further Amended Statement of Claim and deposed in his Written Statement on Oath that the land in dispute is a portion of a large expanse of land acquired by his maternal grandfather, Pa. James Adewusi. The Respondents on the other hand pleaded in Paragraph 14 of the Statement of Defence and Counter-Claim that the land in dispute forms part of several landed properties owned by Late Chief (Pa) James Williams Adewusi. That upon his demise, his several properties were shared amongst his children some of whom were the parents of the Appellant, and the 2nd and 3rd Respondents. Specifically the Respondents pleaded in Paragraphs 14, 15, 16, 18, 22, 23 and 24 as follows:
  54. “14. While the landed property situate at Abule Otun, Lafenwa, Abeokuta of which the one ….. in dispute forms part thereof was partitioned into Four 4 for (1) Olu and Rachael (2) Jacob, (3) Olubode and (4) Felicia, Dorcas, Victoria and Comfort (otherwise known as Laarin).15. Each person took his or her respective portions of Abule Otun, Lafenwa land after partitioning, while Jacob and Olubode took portions where Alhaji Biobaku’s house now stand, Olu and Rachael took possession of the portion partitioned to them i.e. where a Filling Station called African Petroleum (A.P) Lafenwa, Abeokuta now stand. It is the land now in dispute between the parties herein.16. The portion where the Filling Station known as Mobil Oil stands was partitioned to Dorcas, Felicia and Victoria.
    18. A small portion between the land of Olu and Rachael and that of Dorcas, Felicia and Victoria was given to Comfort otherwise known as Laarin. But the said portion has now been fenced up to include the portion being occupied by Mobil Oil now.

    22. The 2nd and 3rd Defendants aver that sometime on 8th October, 1957, the duo of Olu Adewusi and Rachael Adewusi jointly executed a Deed of Leasehold for a term of 25 years in respect of their holden (sic) in favour of VIVIAN, YOUNGER and BOND LIMITED, Merchants of 13/15 Prince House, Tinubu Square, Lagos.

    23. The 2nd and 3rd Defendants aver that VIVIAN YOUNGER and BOND LIMITED later assigned their holder (Sic) to BP (West African) Limited.

    24. By an assignment dated 20/12/65, Messrs B.P. W/Africa Limited also assigned their interest to B.P. (Nig.) Limited which later became A.P. (Nig.) Limited.

  55. It should also be noted that the Appellant filed an Amended Reply to the Statement of Defence and Counter-Claim. Throughout the entire pleading nor can it be inferred from any of the paragraphs of the said Amended Reply to the Statement of Defence and Defence to Counter-Claim, that the Appellant contradicted the pleadings of the Respondents as reproduced above, in respect of the identity of the land in dispute. Indeed, the parties are agreed that the land is situate at Abule Otun, Lafenwa, Abeokuta and that it formed part of the large estate of the late Chief (Pa) James William Adewusi. It is also not in dispute that it is the portion claimed by the parents of the 2nd and 3rd Respondents and upon which the AP Filling Station is now built. Indeed, the disagreement of the Appellant is not as to the identity of the land per se, but as to the size and shape of the land. Even that should not create any difficulty as it is in evidence that the land partitioned to the Respondents’ parents as evidenced by the Plan annexed to Exhibit “D1” cannot be the same as that in Exhibits “A” and “B” which were prepared much later in time by the Appellant. Furthermore, the Plan leased to A.P. Ltd by the 1st Respondent’s family who were not parties to Exhibit “D1”. That being so, I am of the view that, there was no necessity to draw any other plan, composite or otherwise to show the identity of the land in dispute. The evidence on record was sufficient to establish the identity of the land in dispute. This issue is therefore resolved, also against the Appellant.
  56. On issue three, learned counsel for the Appellant cited the case of Yusufu v. Dada (1990) 4 NWLR (pt.146) p.657 to contend that, the law as relates to intestate succession before the issuance of Letters of Administration is that, after the death of any person, his estate would be deemed to have become vested, from the date of his death until administration is granted by the Chief Judge of a State. That this law is applicable to all manner of intestate succession; customary or otherwise. That in the instant case, the 2nd and 3rd Respondents claimed that they derived their interest from their parents, Olu and Rachael Adewusi, who died in 1975, but they failed to plead and establish that any Letters of Administration had ever been obtained by them in relation to their deceased parents’ estate. That, the omission of the 2nd and 3rd Respondents to hinge their claims on properly obtained Letters of Administration was fatal to their claim. In other words, that the 2nd and 3rd Respondents who have failed to plead and establish that they had succeeded to any title hitherto vested in their parents, lacked the locus standi to prosecute their Counter-Claim. Furthermore, that the 1st Respondent who claimed to have replaced the original executors to their family estate, did not show any evidence of his appointment.
  57. The response of learned counsel for the Respondents is that, nowhere in the Appellant’s pleading and evidence, was it pleaded that the Respondents did not obtain Letters of Administration. In other words, that the issue did not arise at the lower Court on the pleadings as to enable the learned trial Judge take a decision on the case. The cases of Onyejekwe & 7 Ors v. Onyekwe (1999) S.C. p.1 was then cited to submit that parties are bound by the pleadings and as the parties did not join issues on the point, there is no need to prove same. Secondly, that the Appellant is not hinging his case on the fact that the Respondents are his joint inheritors of the same land in dispute, so that the Appellant could complain that the Respondents are claiming inheritance without obtaining Letters of Administration from the Probate Registry of the High Court of Ogun State. That, rather, the Appellant is claiming adverse to the Respondents on the ground that the Respondents have no interest whatsoever on the land in dispute. It was therefore contended that the case of Yusuf v. Dada (supra) cited by the Appellant is not apposite to the facts of this case.
  58. It is trite law that cases in the High Courts are determined on the pleadings in the Statement of Claim. The parties to the dispute, and indeed the courts are bound by the pleadings. It therefore means that the parties cannot lead evidence on facts that have not been pleaded nor can the Court make findings or pronounce on an issue that has not been pleaded. Consequently, any evidence led on a fact that has not been pleaded will go to no issue and should therefore be discountenanced. See Dopemu Taiwo Adeyeri & Ors. v. Akinbode Okobi & Ors (1997) LPELR – 8055 (SC); Awoyegbe v. Ogbeide (1988) NWLR (pt.73) p.695; Amodu v. The Commandant P.C; Maiduguri (2009) 15 NWLR (pt.1163) p.75 and Arjay Ltd v. A.M.S. Ltd (2003) 7 NWLR (pt.820) p.577. Thus in the case of Christiana I. Yare v. National Salaries, Wages and Income Commission (2013) LPELR –20520 (SC), Galadima, JSC said:
  59. “It is well settled law that the parties and, indeed the Court, are bound by the pleadings filed and exchanged. If facts needed to establish a right to relief are to be relevant, they have to be pleaded by the party seeking to rely on same to establish his claim or right to relief. It is after the relevant fact is pleaded that evidence would be admissible to establish the existence of the fact. That is why it is trite law that evidence on facts not pleaded goes to no issue, because parties normally join issues on the facts pleaded and only need evidence either oral or documentary to establish the facts so pleaded….”(back to top?)
  60. Thus, an appeal on the other hand, is an invitation to a higher Court to review the decision of a lower Court, so as to find out whether on proper consideration of the facts and issues, and the applicable law thereon, the lower Court arrived at a correct decision. An appeal is therefore an invitation to the higher to reconsider the ratio decidendi or the reason for the decision of the lower Court so as to see whether, on the facts, issues and the applicable law, the lower Court arrived at a correct decision. That being so, a party must be consistent in the case he presents before the Court, and so must not use the forum of an appeal to introduce into his case, issues which were not before the lower Court and so the lower Court had no opportunity of stating its views on it. It therefore means that an appeal is a challenge against the decision of the lower Court and is basically to be predicated or grounded upon what the lower Court has decided in its judgment and not on what the lower Court has not decided on in its judgment. See Oloruntoba-Oju v. Abdul-raheem (2009) All FWLR (pt.497) p.1; Ogbebor v. Danjuma (2003) 15 NWLR (pt.843) p.403; N.D.I.C. v. S.B.N. Plc (2003) 1 NWLR (pt.801) p.311; Ngige v. Obi (2006) 14 NWLR (pt.999) p.1 and Akpan Udoete v. Heil & Anor (2002) 13 NWLR (pt.783) p.64 at 86. In the case of Mr. Ibibiama F.G. Odom & Ors. v. The People’s democratic Party & Ors (2015) LPELR – 24351 (SC), the Supreme Court, per I.T. Muhammad, JSC said:
  61. “…The purpose of an appeal,…is to find out whether on the state of pleadings, evidence and applicable law the Lower Court had come to the right decision in relation to the reliefs canvassed in the matter the Court’s intervention is sought. Indeed, it is not a new action but a continuation of the very dispute in the original action. An Appeal, therefore remains a complaint against a decision arising from the matter in dispute. This explains why a party is not permitted on appeal to change the case he made right from the trial Court otherwise the party would be allowed to appeal against what had not been decided against him. This Court is only empowered to deal with matters duly canvassed at and determined by the Court from which the appeal arises.”(back to top?)
  62. In the instant case, the issue of whether or not the Respondents obtained any Letter(s) of Administration from the Probate Registry of the Ogun State High Court before claiming any interest in the land in dispute was never pleaded by the Appellant. Same was never canvassed at the trial and the trial Court did not pronounce on it in its judgment. This issue having not been pleaded nor canvassed at the trial cannot also be canvassed in this Appeal. In other words, the issue did not constitute a ratio decidendi in the decision of the trial Court appealed against. The issue is therefore irrelevant, it goes to no issue and consequently discountenanced.
  63. On issue 4, learned counsel for the Appellant contended that the learned trial Judge erred in setting aside the Certificate of Occupancy issued in favour of the Appellant, and granting the Respondents an injunction over the land in dispute, when by their own admission they had sold their interest in the land and thereby transferred their title to the land to unnamed third parties. The case of Amuda v. Ajimo (1985) 7 NWLR (pt.406) p.170 at 182 and Ajao v. Obeke (2005) All FWLR (pt.262) p.544 at 233 – 234, were then cited to submit that, having found that the Respondents had transferred whatever interest they held in the land, their Counter-Claim should have been dismissed. That in such circumstances, the only person(s) who could have Counter-Claimed against the Appellant are the purchasers from the Respondents. In other words, that the purchasers of the land ought to have been joined in the Counter-Claim, and that failure to so join them rendered the Counter-Claim in- competent and should have been dismissed.
  64. In response, learned counsel for the Respondents contended that from the state of the pleadings and evidence, the Respondents had made it clear that prior to the filing of this action against them and/or their privies, they had sold the land in dispute. That, the Appellant sued not only the Respondents but their privies, which means that whatever judgment the court gave will bind their privies in title. That in the circumstances, it was necessary for the Respondents to defend the action and to Counter-Claim in order to preserve whatever interest they passed on to the purchasers for value.
  65. It was further submitted by learned counsel for the Respondents that the trial Court did not award the claim in damages for trespass. That, the trial Court had the duty to make express findings on the issues joined by the parties. The case of Okeniyi & Ors v. M.O. Akanbi & Ors (2002) FWLR (pt.84) p.113 was then cited to submit that, based on the evidence on record, the Court is duly bound to resolve and make specific findings on all the vital and conflicting issues before it. Learned counsel then submitted that, since the parties joined issues on whether or not to set aside the Certificate of Occupancy, and also led evidence thereon, the learned trial Judge was justified to pronounce on it and thus set aside the Certificate of Occupancy. That the fact that the Respondents had disposed of their interest in the disputed land does not mean that the Appellant’s case was proved as to warrant title to be declared in his favour or that the entire Counter-Claim should be dismissed. The case of Augustine Ndulue v. Chief Godfrey Onyekwu Iunne & Anor (2002) 5 S.C. (pt.II) p.132 was also cited to submit that the manner the Appellant’s first prayer was framed, non-joinder of the purchasers from the Respondents would not defeat the Respondents’ case. We were then urged to hold that the Counter-Claim was properly constituted and the relief granted the Respondents cannot be faulted having regard to the evidence.
  66. In reply on points of law, learned Senior Counsel for the Appellant insisted that, the Respondent having sold their title to the land in dispute, they were no longer entitled to the reliefs claimed from the Court as they no longer had any interest in the land on which any of their claims could be hinged.
  67. Before resolving this issue, it would be necessary to look at the nature of the reliefs sought in the Counter-Claim and the decision of the trial Court thereon. It would be seen that three reliefs were sought by the Respondents: viz; damages for trespass, an order setting aside the Certificate of Occupancy illegally granted in favour of the Appellant and perpetual injunction restraining the Appellant from committing further acts of trespass on the land in dispute. At page 234 lines 8 – 10 of the records, the learned trial Judge dismissed the Respondents’ claim of damages for trespass with the following words:“Having established by evidence and through pleadings that the Defendants have disposed off their interest in the land in dispute it means that the claim of the Defendants/Counter-Claimants for damages in trespass fails and it is hereby dismissed.”
  68. Having dismissed the Respondents’ claim of damages for trespass, the learned trial Judge set aside the Certificate of Occupancy issued in favour of the Appellant. The reason for setting aside the Certificate of Occupancy was given by the learned trial Judge at page 136 lines 9 – 13 of the Record of Appeal is as follows:“From the oral and documentary evidence adduced in this Court, it has been shown that the predecessors in title of the Defendants had better title to the land in dispute at the time of the grant of the Certificate of Occupancy to the predecessors in title of the Claimant. Considering this fact it is my view that the issuance of Certificate of Occupancy No: 00014882 was issued in error and should therefore be set aside.”
  69. From the portion of the judgment, the trial Court reproduced above, it is obvious that the learned trial Judge found that the Certificate of Occupancy granted in favour of the Appellant and/or his predecessors was issued in error. That, it is so because the Appellant’s/Predecessors in title had no title to the land in dispute at the time it was granted or issued to them. The Respondents had prayed the Court to set aside that Certificate of Occupancy on the ground that it was obtained for the purpose of laying false claim to that parcel of land in dispute. In so praying, the Respondents had pleaded clearly that they had transferred their title to the land to third parties who are desirous of developing the land. Despite that fact, the Appellant still proceeded against them and also joined issues with them on the issue of title. As it would be seen, the learned trial Judge found that the Appellant’s predecessors and invariably the Appellant had no title to the parcel of land in dispute. The learned trial Judge found title the parcel of land to be with the Respondents’ predecessors in title and invariably the Respondents at the time the Certificate of Occupancy was illegally issued to the Appellant. Thus, having been sued by the Appellant and therefore parties to the dispute, and title to the land in dispute having been found to have resided in them at that point in time, I am of the view that they were entitled to seek the discretion of the Court to have the certificate set aside. To refuse to set aside the Certificate of Occupancy on the ground that the Respondents had transferred their title would adversely affect their power to have transferred the land in the first place. It therefore means that the trial Court was right in making such order in order to protect the rights of the Respondents to transfer their title in the land in dispute.
  70. Before I conclude on this issue, I would like to consider the further argument of the Appellant. Learned Senior Counsel for the Appellant had argued that, having held that the Appellants had disposed of whatever interest they had in the land, they no longer had locus standi to maintain an action for which they could legitimately seek the setting aside of the Certificate of Occupancy, they had also divested themselves of the legal right upon which an order of injunction could be hung. The case of Akapo v. Hakeem-Habeeb (1992) 6 NWLR (pt.247) p.265 was cited in support and to further submit that, to be entitled to an injunction, a party must establish a legal right. Learned Senior Counsel then submitted that the learned trial Judge erred when he granted remedies based on the Counter-Claim when the Respondents no longer had any interest in the land in dispute.
  71. In response, learned counsel for the Respondents contended that the Appellants have not canvassed any arguments against the setting aside of the Certificate of Occupancy (Exhibit ‘A’) but only contended that since the Respondents had disposed of their interest to another person, they are not entitled to the reliefs of setting aside of the Certificate of Occupancy and the order of injunction. That the Appellant’s claim was not only against the Respondents but also their privies and therefore the Respondents had a duty not only to defend the action, but also to protect the action against their privies. That, the Appellant who chose to sue the Respondents and their privies cannot now be heard to contend that the Respondents were not right in law to sue him seeking to set aside the illegally procured Certificate of Occupancy. It was then submitted that, he who comes to equity must do equity and if the Court made a finding based on the evidence on issues joined by the parties, this Court should not interfere save where the findings are perverse. We were accordingly urged to hold that the Respondents were entitled to seek for an order setting aside the Certificate of Occupancy and for an injunction to protect the interest of their privy in title.
  72. Now, it is not in doubt that the trial Court had found title to the land in dispute to be in the Respondents. That title was subsisting as at the time Exhibit “A”, which is the Certificate of Occupancy was issued i.e. the 1st day of January, 1988. It therefore means that the Appellant had no title to the land so the Certificate of Occupancy issued to his predecessors in title was void. The logical import of that is that, the Respondents had the legal capacity to sell the land and if they had the legal capacity to sell the land, they would have the interest of ensuring that they convey title to the purchaser free from all incumbrances. Having now been sued by the Appellant challenging their title and/or interest in the land, the Respondents were under a duty to defend same and to ensure that good title is transferred to their privy in title through sale. In any case, if the Appellant insists that the Respondents had no interest in the land to protect, would it have been legally convenient to sue them?. What of the order of perpetual injunction prayed for against the Respondents and their privies? Would it not have been equitable to revoke the Certificate of Occupancy which is the instrument used to challenge the title and/or interest of the Respondents? I am of the view that if the Certificate of Occupancy is not revoked and an order of injunction is not made restraining the Appellant from further trespassing onto the land in dispute, he will disturb the peaceful possession and enjoyment of the land by the Respondents’ predecessors in title. That would also pit the purchasers against the Respondents who had valid title which they had validly transferred. The Respondents having proved their title to the land in dispute were therefore entitled to have the Certificate of Occupancy illegally issued in favour of the Appellant’s predecessors in title set aside.
  73. They were also entitled to the injunction so as to protect their right to sell the land and thus ensure that the purchasers have a good title to the land which they can enjoy free from any incumbrances or disturbance from any person.
  74. I think the learned trial Judge appreciated the claims of the parties and the evidence led thereon when he refused to grant an order of perpetual injunction against the Appellant. The order made by the learned trial Judge at page 237 lines 8 – 10 of the Record of Appeal when he held that:“In the instant case, the Defendants have admitted selling the land in dispute to a third party who is not a party to this action. The Defendants can therefore only be entitled to an injunction and not perpetual injunction.”
  75. What this means therefore is that, it was still open to the Appellant to sue that third party who is not a party to the instant suit. If he did that, then the issue as to who between the purchaser and the Appellant has title or a better title to the land would be put to rest. In other words, the said Certificate of Occupancy having been found to have been illegally issued to the Appellant’s Predecessors in title therefore void, it was proper for the learned trial Judge to pronounce it to be so and therefore have the same set aside, rather than leaving same hanging over the person who had title to the land like a dark cloud or the sword of domocles. In any case, the law is, ubi jus ibi remedium. It is therefore my view that the learned trial Judge was right when he granted the order revoking the Certificate of Occupancy (Exhibit “A”) and the order of injunction.
  76. On the whole therefore, I am of the view that this Appeal lacks merit. It is accordingly dismissed. The judgment of the Ogun State High Court, Sitting at Abeokuta, delivered on the 16th day of June, 2011 in Suit No: AB/72/2010 is hereby affirmed.
  77. I award fifty thousand naira (N50,000.00) against the Appellant as the cost of this Appeal.
  78.  
    FASANMI, J.C.A.:

  79. I had the privilege of reading in advance the draft of the lead judgment just delivered by my learned brother Haruna Simon Tsammani. JCA.
  80. My learned brother has exhaustively dealt with the issues in the appeal. I am on the same page with him in his reasoning and conclusion. The appeal is devoid of merit and it is hereby dismissed.
  81. I abide by the consequential orders contained therein.
  82.  
    OKORONKWO, J.C.A.:

  83. I have had the opportunity of reading in draft the lead judgment in this appeal as delivered by my brother Haruna Simon Tsammani JCA. I agree with the judgment particularly as His Lordship had carefully examined the judgment of the trial Court and found on the fact and on law that there was no reason to disturb or interfere with the judgment.
  84. I associate myself with the lead judgment and also dismiss the appeal as unmeritorious and abide by the order of cost therein.