OKE V OGIDI & ORS

OKE V OGIDI & ORS


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

ON FRIDAY, 24TH FEBRUARY, 2017


Appeal No: CA/I/137/2007

CITATION:

Before Their Lordships:

CHINWE EUGENIA IYIZOBA, JCA

HARUNA SIMON TSAMMANI, JCA

NONYEREM OKORONKWO, JCA


BETWEEN

PASTOR A.O. OKE
(APPELLANT)

AND

MR. SUNDAY OGIDI
MR. LAYI BABALOLA
ALHAJI SOMONSERE
(RESPONDENTS)


PRONOUNCEMENT


A. APPEAL
1. Grounds of Appeal – Effect of a ground of appeal from which no issue for determination is formulated

The law is settled that issues for determination are distilled from the Grounds of Appeal filed. Accordingly, any issue formulated in an appeal which cannot be traced to any of the Grounds of Appeal filed, it would be struck out. So also, since appeals are not argued on the Grounds of Appeal filed, but on the issues formulated from the Grounds of Appeal, any Ground of Appeal for which no issue has been distilled, is deemed abandoned and must be struck out. See Babalola v. Obaoku-Ote & Anor (2005) 5 NWLR (pt. 927) p. 386; Admin. Gen. Delta State v. Ogogo (2006) 2 NWLR (Pt. 964) p. 366 and Wilfred Okafor v. The State (2005) LPELR – 7566 (CA ). In the instant appeal, the issues formulated by the Appellant are said to be culled from Grounds 2, 3 and 4 of the Notice of Appeal. None of the issues is said to be culled from Ground 1. The implication is that the Appellant has abandoned Ground 1 of the Notice of Appeal. Ground One (1) having been abandoned is hereby struck out. Per TSAMMANI, JCA. read in context

2. Issues for Determination – How issues of determination should be formulated
Effect of an issue for determination not arising or relating to any ground of appeal

It is also settled law that issues for determination must be predicated upon a specific Ground(s) of Appeal. This is why the Supreme Court has consistently admonished that parties to an appeal must tie or marry the issues which they have been distilled. This will ameliorate the need for frequent objections on issues formulated, and also make room for easy resolution where an objection is raised. The bottom line however is that, issues distilled for determination must tied to the Grounds of Appeal filed. Thus, where an issued raised for determination cannot be traced to any of the Grounds of Appeal filed, it would be struck out as being incompetent. See Shipcae (Nig) Ltd, Owners of the “M/T African Hyacinth” v. The Owners of the “M/V Fortunato” (2011) 7 NWLR (Pt. 1 46) p. 205; Odusote v. Odusote (2012) 3 NWLR (pt. 1288) p. 478; General Oil Ltd v. Chief Ogunyade (1997) 4 NWLR (pt. 501) p. 613 and Dada v. Dosunmu (2006) 18 NWLR (pt. 1010 ) p. 134. See also S.P.D.C. v. Goodluck (2008) 14 NWLR (pt. 294) at 307 Paragraphs G- H. Per TSAMMANI, JCA. read in context

3. Particulars of Ground of Appeal – What particulars in support of a ground of appeal does
Purpose of particulars in support of a ground of appeal

Now, it is the law that in construing or interpreting a Ground of Appeal, the particulars in support of the Ground of Appeal must be taken into consideration. The particulars go to explain the Ground of Appeal. See Ibrahim v. Mohammed (2003) 17 W.R.N p. 1 at 33; Daily Times Nig. Plc v. D.S.V Ltd (2014) 5 NWLR (Pt. 1400) p. 321 and Oleksandr v. Lonestar Drilling Co. Ltd (2015) 9 NWLR (Pt. 1415) p. 337. The particulars of either error or misdirection in an appeal go to explain or elucidate the Appellant’s complaint in the Ground of Appeal. Those particulars should always be consistent with the complaint in the Ground of Appeal. Accordingly, to construe a Ground of Appeal, the Ground and the particulars thereof must be read together. See Diamond Bank Ltd v. P.I.C. Ltd (2009) 18 NWLR (Pt. 1172) p. 67; Apapa v. I.N.E.C. (2012) 8 NWLR (PT. 1303) P. 409 and D. Stephens Industries Ltd & Anor v. Bank of Credit and Commerce International (Nig.) Ltd (1999) 11 NWLR (Pt. 625) p. 29 at 31. Per TSAMMANI, JCA. read in context

B. EVIDENCE
4. Onus of Proof – The burden of proof placed on both parties in a land dispute
On whom lies the burden of proof in a claim for declaration of title to land

Now, looking at the claims before the Court, it is obvious that the main or principal relief sought by the Appellant is for a declaration of title to the land in dispute. Being a declaratory relief, the burden was on the Appellant who sought the declaration to prove his case by adducing credible and sufficient evidence which must satisfy the Court that he is entitled to the declaration. To do that, the Appellant as Claimant had to rely solely on the evidence adduced by him, and not on the weakness of the defence, save where such weakness supports and therefore adds weight to such evidence. In other words, a declaration of title cannot be made without the Plaintiff calling evidence not even on admission by the Defendant. See Anuka v. Anukam (2008) NWLR (Pt. 1081) p. 455; Onovo & Ors v. Mba & Ors (2014) LPELR- 23035 (SC) per Ogunbiyi, JSC; Adebayo v Shogo (2005) 7 NWLR (Pt. 925) p. 467 Okelola v. Adeleke (2004) 13 NW R (Pt. 890) p.307 and Tukuru & Ors v. Sabi & Ors (2013) LPELR-20176 (SC). Thus in the case of Onwubuariri & Ors v. Igboasoyi & Ors (2011) LPELR-754 (SC) Onnoghen, JSC (as he then was) said:

“It is settled law that in an action for declaration of title to land, the onus is on the Claimant to satisfy the Court that he is entitled to the declaration sought on the pleadings and evidence thereon. Where the onus is not discharged, the weakness of the Defendant’s case will not be of any help to the Claimant.”

It therefore means that in an action for declaration of title to land, a Defendant who has not Counter-Claimed may decide not to call evidence. He may even fold his arms and not file any defence, but dare the Plaintiff to proof his case. Per TSAMMANI, JCA. read in context

5. Onus of Proof – The onus placed on the appellant and the defendant in a land dispute
On whom lies the onus of proof in a claim for family or communal ownership of land

There has evolved a presumption of ownership in favour of the community or family as the case may be and so the onus was put on the one asserting individual ownership to prove that family or communal ownership has been broken or severed. See Eze vs. Igiliegbe (1952) 14 WACA 61, Adeyeye vs. Adewoyin (1963) 1 All NLR 421 Adenle vs. Oyegbade (1967) NBJ 69.
See also Onowhosa vs. Peter Ikede Odiuzoh (1999) 1 NWLR (pt. 586) 173 at 190 where Iguh JSC held as follows:

“The law is well settled that where a plaintiff leads evidence that a land in dispute is communal property, the onus is on the defendant to establish that the land belongs to him exclusively. See Udeakpu Eze v. Igiliegbe (1952) 14 W. A. C. A. 61; Atuanya v. Onyejekwe (1975)3 S. C. 161 at 167. This onus, the defendants were unable to discharge in this case. I think both Courts below are right in holding that the land in dispute is in the communal ownership of both the Appellants and the Respondents.”

Against this presumption which is rebuttable (as in Idanmwekhai vs. Edoifo Braimah unreported Appeal No. CA/B/9/88 of 16/11/90). It is for the Appellant to prove that the land in dispute is no longer family property either by proving partition or sale or other events that can destroy the unity characteristic of family property. Per OKORONKWO, JCA. read in context

6. Proof of Title to Land – Ways of proving title/ownership of land

There are five (5) recognized modes or ways of claiming title to land in Nigeria. These were set out by the Supreme Court in the case of Idundun v. Okumagba (1976) 9-10 SC pp. 246-250 and has been followed in several other cases such as, Mogaji v Cadbury Nig. Ltd (1985) NWLR (Pt. 7) p. 393; Makanjuola v. Balogun (1989) 9 NWLR (Pt. 108) p. 192; Balogun v. Akanji (1988) 1 NWLR (Pt. 70) p. 301; Obieche v. Akusobi (2010) 12 NWLR (Pt. 1208) p. 383; Okonki v. Njokanma (1999) 14 NWLR (Pt. 638) p. 250; Agboola v. UBA Plc (2011) LPELR-9353 (SC); Orlu v. Gogo-Abite (2010) 8 NWLR (Pt. 1196) p. 307 and Ihkorone v. Hart (2000) 15 NWLR (Pt. 692) p. 840. Those tested and established ways are:
(a) By traditional history or evidence:

(b) By production of documents of title.

(c) By proving acts of ownership, such as selling, leasing, renting out or farming on all or part of the land, extending over sufficient length of time or which are numerous and positive enough as to warrant the inference that the person is the true owner.

(d) By proving acts of long possession and enjoyment of the land.

(e) By proving possession of connected or adjacent land in circumstances rendering it probable that the Claimant is also owner of such adjacent or connected land.
The Plaintiff may make his claim through one or more of the above stated modes of establishing title to land. Per TSAMMANI, JCA. read in context

7. Evaluation of Evidence – How evaluation of evidence and ascription of probative value is a primary duty of the trial Court
Position of the law as regards evaluation of evidence and ascription of probative value

Now, it is trite law that the primary duty of appraising and ascribing probative value to the evidence adduced at the trial, lies at the bosom of the trial Judge. Consequently, where the trial Judge has properly evaluated and ascribed the right value to the evidence adduced, this Court will not interfere with the evaluation of the evidence done by the trial Court. Since the law presumes the judgment of a Court of competent jurisdiction to be correct, the burden will be on the Appellant who challenges the findings and conclusions of the trial Court, to demonstrate to the appellate Court how the findings and conclusions of the trial court are erroneous. Per TSAMMANI, JCA. read in context

C. LAND LAW
8. Registerable Instrument – The inadmissible nature of unregistered document
Effect of not registering a registrable instrument

The only evidence tendered by the Appellant in proof ownership of the land is the unregistered title document Exhibit A which the learned trial Judge dismissed as lacking in evidential value. In the case of Akinduro V Alaya (200 ) 15 NWLR (PT. 1057) 312, the SC per Aderemi JSC observed:

“An unregistered document affecting land must not be pleaded and neither is it admissible in evidence. See Ogunbambi v. Abowab 13 WACA 222; Olowoake v. Salawu (2000) 11 NWLR (Pt. 677) 127 and Adesanya v. Aderonmu (2000) 6 SC (Pt. 11)18; (2000) 9 NWLR (Pt. 672) 370. And if such a document is pleaded, a trial Judge upon an application made to it, must strike out paragraphs of pleadings where such unregistered document is pleaded See Ossai v. Nwajide & Anor (1975) 4 SC 207. Even where the unregistered document was mistakenly admitted in evidence; part of the evidence relating to that unregistered document should be expunged for reason of lacking evidential value.” Per IYIZOBA, JCA. read in context

9. Title to Land – How production of documents is sufficient to prove ownership of land
Whether the production of title documents alone is enough to prove title to land

It is not in doubt, as laid down in the case of Idundun v. Okumagba (supra), that the production of documents of title is one of the five recognized ways by which a Plaintiff may prove ownership of land. Such documents of title must be duly authenticated in that their due execution must be proved unless they are produced from proper custody in circumstances which gives rise to the presumption of due execution in the case of documents which are 20 years old or more at the date of the transaction. See Thompson v Arowolo (2003) 7 NWLR (Pt. 818) P. 126 at 208. However where the Plaintiff relies on and tenders documents of title as his source of title, the Court has the inevitable duty to inquire on the following questions;

(a) Whether the document of title is genuine and valid;
(b) Whether it has been duly executed, stamped and registered;
(c) Whether the grantor had the authority and capacity to make the grant;
(d) Whether in fact the grantor had what he purported to grant; and
(e) Whether it has the effect claimed by the holder of the instrument.
It therefore means that, the mere production of a document of title, even though valid on its face, will not necessarily carry with it automatic relief by grant of the declaration of title sought. The Court will have to satisfy itself by taking into consideration the above enumerated factors. See Romaine v. Romaine (1992) 4 NWLR (Pt. 238) p. 650; Akinduro v. Alaya (2007) All FWLR (Pt. 381) p.1653 at 1665; Ngene v. Igbo (2000) 4 NWLR (Pt. 651) p.131; Lawson & Anor v. Ajibulu & Ors (1997) 6 NWLR (Pt. 507) p. 14 and Okunowo v. Molajo All FWLR (Pt. 590) p.1386 at 1396-1397. See also Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) p.1. Per TSAMMANI, JCA. read in context


LEAD JUDGMENT DELIVERED BY OKORONKWO, JCA


By its judgment delivered on 15-7-05, the High Court of Oyo State coram Hon. Justice J.O. Ige; dismissed the claims of the Appellant in that Court wherein he (Appellant) had sued the Respondents for declaration of title to land, and injunction. In rejecting the Appellant’s claim as plaintiff, the trial judge had said at page 89 of the record thus:

I believe the evidence of the defendants that the four room structure on the land was built by late Sanusi and not Olaniran Babalola. I also find as a fact and believe the evidence of the defendant’s witnesses that the land in dispute is Sanusi Babalola’s land, and not the personal property of Olaniran Babalola the last Mogaji of the family.

In the claims before the High Court, Appellant had claimed as follows:-

“A: A declaration that the plaintiff is the owner and

person entitled to the Statutory Right of Occupancy

in that piece of land (3/4) plot at Ateretuu’s

Compound, behind Amuludun Hotel, Omi Adio,

Ibadan Oyo State and entitled to Statutory Certificate

of Occupancy.

B: An injunction restraining the defendants, their servants, and or agents from entering upon the said land and/or form committing further acts of trespass thereon.”

The facts leading to the case and this appeal can be rendered as follows;

The Appellant claims to have been a caretaker of a piece of land measuring about 3/4 plot situate at Ateretuu’s Compound behind Amuludun Hotel, Omi Adio, Ibadan Oyo State belonging to Olaniran Babalola.

Sometime in 2001, Appellant allege the said Olaniran Babalola sold the small piece of land to him for N10,000.00 in appreciation of his services and in order to look after himself.

After the death of Olaniran, the 2nd Respondent who was the younger brother of the said Olaniran Babalola and who also succeeded him as Mogaji of Babalola family approached the Appellant and requested the Appellant to purchase the land from him for N45,000.00. As the Appellant refused insisting that he had earlier purchased the land from Olaniran Babalola for N10,000.00, the 2nd Respondent proceeded to sell the land in dispute to 1st Respondent.

For the Respondents, their case was that the land in dispute was family land reserved for a special purpose after the purpose estate of the late father of Olaniran Babalola and 2nd Respondent Sanusi Babalola was shared among his children. The land in dispute remained family land and was not personal property of Olaniran Babalola who was before his death the Mogaji of the Babalola family.

As the Babalola family had need to raise money for the maintenance of family house, 2nd Respondent as the new head of family offered the Appellant the land in dispute to purchase for N50,000 but Appellant declined and offered only N10,000.00 which was rejected. The 2nd Respondent went ahead along with other members of the Babalola family to sell the land in dispute to the 1st Respondent for N45, 000.00.

Against this background of facts, the learned trial judge formulated the issue for determination in his own words thus:-

The issue that calls for determination in this case is this – who owns the land in dispute: Is it late Olaniran Babalola that is plaintiff’s vendor or the Babalola family? If the land is owned by the family and not Olaniran Babalola beneficially, can Olaniran Babalola dispose of family property?

The Appellant formulated the following issues;-

(i) Whether the lower Court was right when it held that the Appellant had failed to discharge the burden on him to prove that he is the rightful owner of the land in dispute (culled from Ground 2 of the Notice of Appeal)

(ii) Whether the lower Court was right when it held that the Appellant’s vendor had no title to the land in dispute to transfer to the Appellant (culled from ground 3 of the Notice of Appeal)

(iii) Whether the findings of the lower Court was against the weight of the evidence in the circumstances of the evidence and materials before it. (culled from Ground 4 of the Notice of Appeal)

And for the Respondents, they (Respondents) formulated three issues and in addition adopted the issues formulated by the Appellants as follows:

The Appellant formulated 3 (three) issues for determination in this appeal. It is pertinent to point out that issue (i) whether the lower Court was right when it held that the Appellant had failed to discharged the burden on him on (sic) prove that he is the rightful owner of the land in dispute (culled from Ground 2 of the Notice of Appeal) is unrelated to Ground 2 of the Notice of Appeal filed by the Appellant on the 29th day of August, 2005.

Also by way of observation, the Appellant failed to formulate any issue based on Ground One of his Notice of Appeal filed on the 29th day of August, 2005. Consequently, the Appellant is deemed to have abandoned ground one of his appeal. We urge the Honourable Court to strike out Appellant’s ground one of the Notice of Appeal, see Purification Technique Nig. Ltd. & 3 Ors. Vs. Rufai Jubril & 9 Ors (2012) 6 S. C. (Part ll) page 1 at page 24 lines 25-33.

The Respondents wish to adopt the other two issues formulated by the Appellant as follows:-

Whether the lower Court was right when it held that the Appellant’s vendor had no title to the land in dispute to transfer to the Appellant. (culled from Ground 3 of the Notice of Appeal)

Whether the findings of the lower Court was against the weight of the evidence in the circumstances of the evidence and materials before it. (culled from Ground 4 of the Notice of Appeal)

I think that the issues formulated by the trial Court best crystallize the issue in this case and would be the bases for determining the appeal. The issue is simply thus:-

Is the land in dispute family property of the Babalola Family?

Or

Is it the Personal Property of the Olaniran family?

In answering these questions, an analysis of land ownership in customary law of the Yoruba people is essential and would be undertaken.

There has evolved a presumption of ownership in favour of the community or family as the case may be and so the onus was put on the one asserting individual ownership to prove that family or communal ownership has been broken or severed. See Eze vs. Igiliegbe (1952) 14 WACA 61, Adeyeye vs. Adewoyin (1963) 1 All NLR 421 Adenle vs. Oyegbade ( 96 ) NBJ 69.

See also Onowhosa vs. Peter Ikede Odiuzoh (1999) 1 NWLR (pt. 586) 173 at 190 where Iguh JSC held as follows:

“The law is well settled that where a plaintiff leads evidence that a land in dispute is communal property, the onus is on the defendant to establish that the land belongs to him exclusively. See Udeakpu Eze v. Igiliegbe (1952) 14 W. A. C. A. 61; Atuanya v. Onyejekwe (1975)3 S. C. 161 at 167. This onus, the defendants were unable to discharge in this case. I think both Courts below are right in holding that the land in dispute is in the communal ownership of both the Appellants and the Respondents.”

Against this presumption which is rebuttable (as in Idanmwekhai vs. Edoifo Braimah unreported Appeal No. CA/B/9/88 of 16/11/90). It is for the Appellant to prove that the land in dispute is no longer family property either by proving partition or sale or other events that can destroy the unity characteristic of family property.

No such evidence was led and there are no circumstances from which any such inference like partition could be drawn neither was it shown that the Appellants grantor sold as family head in which case some form of title voidable or otherwise could arise. It is therefore reasonable to hold that the land in dispute remains family property and only the family could pass title thereof.

On this analysis, it becomes compelling to accredit the findings and decision of the trial judge and to discredit the appeal as unmeritorious.

In the final analysis, the appeal is dismissed. Cost of N50,000.00 to the Respondent.

IYIZOBA, JCA

I read before now the Judgment just delivered by my learned brother, NONYEREMOKORONKWO JCA. The only evidence tendered by the Appellant in proof ownership of the land is the unregistered title document Exhibit A which the learned trial Judge dismissed as lacking in evidential value. In the case of Akinduro v Alaya (2007) 15 NWLR (PT. 1057) 312, the SC per Aderemi JSC observed:

“An unregistered document affecting land must not be pleaded and neither is it admissible in evidence. See Ogunbambi v. Abowab 13 WACA 222; Olowoake v. Salawu (2000) 11 NWLR (Pt. 677) 127 and Adesanya v. Aderonmu (2000) 6 SC (Pt. 11)18; (2000) 9 NWLR (Pt. 672) 370. And if such a document is pleaded, a trial Judge upon an application made to it, must strike out paragraphs of pleadings where such unregistered document is pleaded See Ossai v. Nwajide & Anor (1975) 4 SC 207. Even where the unregistered document was mistakenly admitted in evidence; part of the evidence relating to that unregistered document should be expunged for reason of lacking evidential value.”

In the absence of the sole evidence of title relied on by the Appellant, the learned trial judge was right to conclude that the Appellant failed to discharge the burden on him to show that he is the rightful owner of the land in dispute. I agree that the appeal is lacking in merit. I also dismiss it. I abide by the consequential orders in the lead judgment.

TSAMMANI, JCA

I agree with the judgment prepared and delivered by my learned brother, Nonyerem Okoronkwo, JCA. I only wish to add a few words of mine as follows:

The Appellant herein, as Plaintiff in the trial High Court filed a Writ of Summons and Statement of claim wherein he claimed as follows:

1. A Declaration that the Plaintiff is the owner and person entitled to the Statutory Right of Occupancy in that piece of land (X) Plot at Ateretuu’s Compound, behind Amuludun Hotel, Omi Adio, Ibadan, Oyo State and entitled to Statutory Certificate of Occupancy.

2. An Injunction restraining the Defendants, their servants and/or agents from entering upon the said land and from committing further trespass thereon.

Upon being served, the Respondents, who were the Defendants filed a Joint Statement of Defence. See pages 27 – 33 of the Record of Appeal. The Appellant then filed a Reply to the Joint Statement of Defence filed by the Respondents. See pages 47 – 50 of the Record of Appeal.

A summary of the Plaintiff/Appellant’s claim before the Court below is that, the land in dispute was owned by one Olaniran Babalola, who is now deceased. That in his lifetime, the said Babalola appointed him (Appellant) as caretaker of the land in dispute. That the said Olaniran Babalola was the elder brother of the 2nd Defendant/Respondent; Layi Babalola. The Appellant then contended that in his lifetime, the said Olaniran Babalola, in appreciation of the service rendered, sold the land in dispute to him (Appellant). That a Land Sale Agreement was prepared and signed by the said Olaniran Babatunde to that effect.

The Respondents denied the Appellant’s claim and maintained that the said Olaniran Babalola, who was in his lifetime the Mogaji (Head) of the Babalola Family was not the sole owner of the land in dispute. That the land in dispute belonged to one Sanusi Babalola, the father of the 2nd Respondent (Mr. Layi Babalola) who built a four room mud house on the land in his lifetime. It was then contended by the Respondents that, upon the demise of Sanusi Babalola, his properties devolved to his children and later shared among his children including Olaniran Babalola with the exception of the land in dispute which was considered too small to be shared. The Respondents then denied that Olaniran Babalola had sold the land in dispute to the Appellant.

After pleadings were duly settled, the case went to trial. The Plaintiff/Appellant called three (3) witnesses and tendered the “Land Sale Agreement”, the Dispute Plan and a Receipt in evidence, which were marked as Exhibits “A”, “B” and “C” respectively. The Respondents on their part called four (4) witnesses including the 2nd Defendant/Respondent who testified as the D.WA. At the close of evidence, counsel addressed the Court, and in a judgment delivered on the 15th day of July, 2005, the learned trial Judge found the Appellant’s case as not proved, and consequently dismissed it. The Appellant felt aggrieved by that decision and has now filed this appeal.

The Notice of Appeal which is at pages 91 – 93 of the Record of Appeal is undated but filed on the 29/8/2005. It consists of four (4) Grounds of Appeal. The parties to the Appeal complied with the Rules of this Court by filing Briefs of Arguments. The Appellant’s Brief of Arguments is that dated and filed on the 05/10/2016 pursuant to the Order of this Court made on the 27/9/2016. A page 3, Paragraph 3.1 of the said Brief of Arguments, the Appellant raised three issues for determination as follows:

(i) Whether the lower Court was right when it held that the Appellant had failed to discharge the burden on him to prove that he is the rightful owner of the land in dispute. [Ground 2]

(ii) Whether the lower Court was right when it held that the Appellant’s Vendor had no title to the land in dispute to transfer to the Appellant. [Ground 3]

(iii) Whether the findings of the lower Court was against the weight of the evidence in the circumstances of the evidence and materials before it. [Ground 4]

The Respondents filed a Respondents’ Brief of Arguments. It was dated the 03/11/2016 but filed on the 07/11/2016. Therein, the Respondents challenged the competence of issue (1) which is said to be founded on Ground 2 of the Notice of appeal. The Respondents however adopted the other two issues formulated by the Appellant. The Appellant did not file any Reply in response to the Respondents’ Brief of Arguments.

Before I proceed to resolve the issues in this appeal, I propose to resolve two preliminary points of law raised by the Respondents. I begin with the second (2nd) point. On that point, it was contended by learned counsel for the Respondents that, the Appellant failed to formulate any issue for determination from Ground One (1) of the Notice of appeal. He then cited the case of Purification Technique (Nig.) Ltd 3 Ors. v. Rufai Jubril & 9 Ors (2012) 6 S.C. (pt. II) p. 1 at 2 lines 25,- 33 in urging us to strike out the said Ground One (1) as having been abandoned. As I stated earlier, the Appellant did not file any Reply Brief, so there was no answer by the Appellant on this point.

The law is settled that issues for determination are distilled from the Grounds of Appeal filed. Accordingly, any issue formulated in an appeal which cannot be traced to any of the Grounds of Appeal filed, it would be struck out. So also, since appeals are not argued on the Grounds of Appeal filed, but on the issues formulated from the Grounds of Appeal, any Ground of Appeal for which no issue has been distilled, is deemed abandoned and must be struck out. See Babalola v. Obaoku-Ote & Anor (2005) 5 NWLR (pt. 927) p. 386; Admin. Gen. Delta State v. Ogogo (2006) 2 NWLR (Pt. 964) p. 366 and Wilfred Okafor v. The State (2005) LPELR – 7566 (CA ). In the instant appeal, the issues formulated by the Appellant are said to be culled from Grounds 2, 3 and 4 of the Notice of Appeal. None of the issues is said to be culled from Ground 1. The implication is that the Appellant has abandoned Ground 1 of the Notice of Appeal. Ground One (1) having been abandoned is hereby struck out.

It was also argued by learned counsel for the Respondent that issue One (1) which is said to be culled from Ground 2 of the Notice of Appeal, is not related to the said Ground 2. Learned Counsel for the Respondents then argued extensively from Paragraphs 4.01 – 4.06 at pages 7 – 9 of the Respondents’ Brief of Arguments that issue One (1) was inappropriately tied to Ground (Two) of the Notice of Appeal. Order 6 Rules 2(3) and 3 of the Court of Appeal Rules, 2011 and the cases of African Petroleum Ltd v. Owodunni (1991) 8 NWLR (pt. 210) p. 391 at 423; and Victor Adeleka v. Ecu-line NV (2006) 5 S.C (pt.II) p. 32 at 39
were then cited to submit that, it is the settled law that any argument on an issue not arising from a Ground of Appeal is incompetent. We were accordingly urged to strike out issue One (1) and to discountenance the arguments canvassed in respect thereof. Here again, there was no response from the Appellant, as he did not file any Reply Brief.

It is also settled law that issues for determination must be predicated upon a specific Ground(s) of Appeal. This is why the Supreme Court has consistently admonished that parties to an appeal must tie or marry the issues which they have been distilled. This will ameliorate the need for frequent objections on issues formulated, and also make room for easy resolution where an objection is raised. The bottom line however is that, issues distilled for determination must tied to the Grounds of Appeal filed. Thus, where an issued raised for determination cannot be traced to any of the Grounds of Appeal filed, it would be struck out as being incompetent. See Shipcae (Nig) Ltd, Owners of the “M/T African Hyacinth” v. The Owners of the “M/V Fortunato” (2011) 7 NWLR (Pt. 1246) p. 205; Odusote v. Odusote (2012) 3 NWLR (pt. 1288) p. 478; General Oil Ltd v. Chief Ogunyade (1997) 4 NWLR (pt. 501) p. 613 and Dada v. Dosunmu (2006) 18 NWLR (pt. 1010 ) p. 134. See also S.P.D.C. v. Goodluck (2008) 14 NWLR (pt. 294) at 307 Paragraphs G-H.

In the instant case, the complaint of the Respondents is that issue 1 distilled by the Appellant is not rooted in the Ground two (2) of the Notice of Appeal from which it is said to be predicated. To resolve, the issue, I find it helpful to reproduce here, the said Ground (2) and the issue said to be distilled therefrom. Thus, Ground two (2) of the Notice of Appeal states that:

GROUND TWO

The learned trial Judge erred in law when he held that the Plaintiff’s Vendor had no title to the land in dispute and therefore came to a wrong decision which occasioned a miscarriage of justice.
PARTICULARS OF ERROR

(i) When it was in evidence that the Plaintiff’s Vendor had earlier sold adjacent lands to other named people.

(ii) When the Plaintiff’s Vendor was the one in exclusive possession of the land in dispute until 2001.

(iii) When the Defendants’ witnesses admitted that the Plaintiff’s Vendor was in charge of the land in dispute.

The issue said to be distilled therefrom reads as follows: “Whether the lower Court was right when it held that the Appellant had failed to discharge the burden on him of prove that he is the rightful owner of the land in dispute.”

Now, it is the law that in construing or interpreting a Ground of Appeal, the particulars in support of the Ground of Appeal must be taken into consideration. The particulars go to explain the Ground of Appeal. See Ibrahim v. Mohammed (2003) 17 W.R.N p. 1 at 33; Daily Times Nig. Plc v. D.S.V Ltd (2014) 5 NWLR (Pt. 1400) p. 321 and Oleksandr v. Lonestar Drilling Co. Ltd (2015) 9 NWLR (Pt. 1415) p. 337. The particulars of either error or misdirection in an appeal go to explain or elucidate the Appellant’s complaint in the Ground of Appeal. Those particulars should always be consistent with the complaint in the Ground of Appeal. Accordingly, to construe a Ground of Appeal, the Ground and the particulars thereof must be read together. See Diamond Bank Ltd v. P.I.C. Ltd (2009) 18 NWLR (Pt. 1172) p. 67; Apapa v. I.N.E.C. (2012) 8 NWLR (PT. 1303) P. 409 and D. Stephens Industries Ltd & Anor v. Bank of Credit and Commerce International (Nig.) Ltd (1999) 11 NWLR (Pt. 625) p. 29 at 31.

I have carefully read Ground two (2) of the Notice of Appeal together with its particulars; and the issue one (1) said to be distilled therefrom by the Appellant. Upon a careful consideration, it appears to me that, the complaint of the Appellant by that issue, is against that holding of the trial Court that the Appellant’s Vendor had no title to the land in dispute which he could transfer to the Appellant based on the principle of nemo dat quod non habe. The issue distilled therefrom seems to me to be on whether the Appellant as Plaintiff had discharged the burden of proof as to entitled him to the reliefs sought. In my view therefore, the issue distilled as issue one is broader in its scope when considering whether the burden of proof has been discharged, while the Ground of Appeal read along with its particulars also encompasses an aspect of burden of proof. It is an aspect of the evidence required to discharge the burden. It is therefore my view that issue one (1) can be legitimately tied to Ground two (2) of the Notice of Appeal. In that respect, I will allow the issue as formulated and canvassed, in the interest of justice.

I have however carefully considered all the three issues formulated for determination by the Appellant. I propose to consider issues 1 and 2 together, while issue 3 will be considered alone. I now start with issues 2 and 3.

Now, arguing on issue 1, learned counsel for the Appellant contended that the Appellant sufficiently pleaded his case in Paragraphs 6, 7, 8, 9 and 10 of the Statement of Claim and 3, 4, 5, 6, 7, 10, 11, 13, 14 and 15 of the Reply to the 1st, 2nd, 3rd Defendants’ Joint Statement of Defence. That such pleading was amply supported by the testimonies of PW1, PW2 and PW3 respectively. That the Appellant who testified as the PW1 established the fact that there was a sale of the land in dispute to him by late Olaniran Babalola, who was also the head of the Babalola Family. That, the said sale was documented by the Land Agreement duly executed by the said Olaniran Babalola in favour of the Appellant. Learned Counsel for the Appellant then cited the
cases of Ajadi v. Olanrewaju (1969) All N.L.R p. 382; Folarin v. Durojaye (1980) NWLR (p. 70) p. 351 and Olosunde v. Oladele (1991) 4 NWLR (Pt. 188 ) p. 113 to submit that, the law is that, if a person basis his root of title to land on purchase or sale according to English law, he must produce and tender the Deed of Conveyance in order to succeed. That both PW2, PW3 and DW1 who is the surviving daughter of late Olaniran Babalola (Appellant’s Vendor) confirmed and corroborated the evidence of the Appellant that late Olaniran Babalola had sold the land in dispute to the Appellant.

Learned Counsel for the Appellant then cited the cases of Idundun v. Okunmagba (1976) All N.L.R p. 200 at 210 and Olubodun & 4 Ors v. Lawal & Anor (2008) 6-7 SC (Pt. 1) p. 35 lines 11-21 to submit that the Supreme Court has enunciated five (5) ways title to land in Nigeria may be claimed . It was then contended that the Respondents made unsubstantiated and unsupportable allegations of fraud against the Appellant. That by Section 138(1) of the Evidence Act, Cap.112, LFN, 1990 allegation of fraud which is a criminal offence must be proved beyond reasonable doubt. That, in any case, there was sufficient evidence for the trial Court to find on that Exhibit “A” was made by Olaniran Babalola in his lifetime.

The case of Ivere v. Bendel Feeds and Flour Mills ltd (2008) 7 – 12 S.C. p.151 at 187 lines 7 – 14 was then cited to submit that the evidence given by the Appellant and his witnesses were unchallenged and uncontroverted, such that the trial Court should have accepted and acted on it.

Learned Counsel for the Appellant also cited the case of Chief Jacob Cleopas Biariko & 7 Ors. v. Chief A.M. Ameh-Ogwuile & 2 Ors 6 N.S.C.Q.R. p. 130 a 150 Paragraphs F – G to submit that, the law requires of a party claiming title to land, to plead and prove his root of title. That in the instant case, the Appellant gave sufficient evidence the root of his title to the land he claims.

On the issue of the identity of the land in dispute, it was contended by the Appellant that, he tendered Exhibit “B” which is the dispute Survey Plan of the land. That in any case, the land was sufficiently described by the Appellant so that there was no necessity to tender or file a dispute plan. That, in any case, the land delineated and described in the Survey Plan (Exhibit “B”) was not challenged nor was it controverted by the Respondents. The case of Ogedengbe v. Balogun (2007) 3 S.C. (Pt. 2) p. 71 at 96 lines 4-30 was cited in support. Learned Counsel for the Appellant conceded that Exhibit ‘A’ i.e. the Land Agreement, was a registrable instrument which was not registered, but submitted that the law is that, an unregistered registrable instrument, if pleaded, is admissible in evidence to prove not only the purchase price or rent, but may also be in prove of an equitable interest especially where the purchaser or lessee is in possession. The cases of Usman v. Garke (1999) 1 NWLR (Pt. 587) p. 466; Okoye v. Dumez (Nig.) Ltd (1985) 1 NWLR (Pt. 4) p. 783 and Yesufu v. Adegoke (2007) All FWLR (pt. 385) p. 384 were further cited in support.

On issue two (2), it was contended by learned counsel for the Appellant that the trial Court was wrong when it held that the Appellant’s Vendor had no title to the land in dispute to transfer to the Appellant. That, the Appellant as PW1, gave evidence of various acts of ownership and possession exercised by the late Olaniran Babalola when he was alive, and that the testimony of PW2 and PW3 corroborated that of the Appellant. That none of the various acts of possession and ownership, including the act of collecting rent from the shops on the land in dispute, was challenged by the Respondents. Furthermore, the fact that Olaniran Babalola sold portions of the land in dispute to Iya Adetutu and Pa Phillips was never controverted by the Respondents. The case of Veepee Industries Ltd v. Cocoa Industries Ltd (2008) 4 – 5 S.C (pt.1) p.116 at 132 lines 23 – 32. and Section 136 of the Evidence Act were then cited to contend that, the burden of proving that the land in dispute is the Babalola Family land lies with the Respondents. That the Respondent failed to discharge that burden and are therefore estopped from denying that the land in dispute was the exclusive property of the late Olaniran Babalola.

The cases of Bello v. AG and Commissioner of Justice, Kwara State (2009) 4 – 5 S.C. (pt.III) p. 1 and Salami & Anor v. Lawal (2008) 6 – 7 S.C. (pt.II) p.243 lines 4 – 15 was further cited by learned counsel for the Appellant to contend that the Respondents sought to deny the assertion of the Appellant that the late Olaniran Babalola was the owner of the land in dispute through the ipsi dixit of the DW4 (2nd Appellant). That in the face of such compelling evidence, pointing to the fact that the land in dispute is the exclusive property of late Olaniran Babalola, the mere ipsi dixit of the 2nd Respondent is not sufficient to controvert that fact. The case of UBA Plc & Anor v. Jargaba (2007) 5 S.C. p. 1 at 23 lines 5 – 10 was again cited to argued that none of the children of late Sanusi Babalola (their progenitor), whom the D.W.2 said were in Court, was called to testify that the land in dispute belonged to their father, Sanusi Babalola and not Olaniran Babalola personally. It was accordingly submitted that, the late Olaniran Babalola had exclusive title to the land in dispute and exercised various acts of ownership and possession thereon, over a period of at least 35 years prior to 2001, without let, hindrance or disturbance from the Respondents or the Babalola Family. That in the circumstances, late Olaniran Babalola sufficiently transferred title to the Appellant. We were accordingly urged to resolve these two issues in favour of the Appellant.

In response, learned counsel for the Respondents contended that, it is not in doubt that Olaniran Babalola was the immediate past head of the Babalola

family. He then cited the cases of Ekpendu v. Eruka

(1959) 4 F.S.C p. 79 and Oyebanji v. Okuonla (1968) N.M.L.R p. 221 to submit that sale of family land can be classified under three heads:

(a) Sale by a member of the family who is not the head of the family is void;

(b) Sale by the head of the family without the consent of the principal members of the family is voidable at the instance of the non-consenting members;

(c) Sale of family land by the head of the family as his own is void.

Learned Counsel for the Respondent also cited the case of Solomon v. Ogaji (1982) 11 S.C. p.1 at 10 to further submit that for sale of family land to be valid, the following conditions must be fulfilled

(a) The head of the family and the principal members of the family must consent to the sale;
(b) There must be payment of money or agreed consideration;
(c) The transaction must be in the presence of witnesses; and
(d) There must be actual handing over of the land to the purchaser in the presence of the witnesses.

Learned Counsel for the Respondent went on to submit that Exhibit ‘A’ tendered by the Appellant as evidence of the sale, fell short of the above mentioned conditions. Furthermore, that the said document or Sale Agreement was not witnessed by anyone and therefore unreliable. Learned Counsel then referred to the judgment of the trial Court, particularly at page 87 of the Record of Appeal where the learned trial Judge set out the conditions to be satisfied in determining the validly of any instrument or document of sale, to point out that Exhibit ‘A’ cannot be said to be genuine, valid or duly executed as the said Pa Olaniran Babalola was an illiterate who could not write his name. Furthermore, that Olaniran Babalola who is said to be the grantor had no capacity to make the grant as the land in dispute was not his personal property. We were then urged to resolve this issue in favour of the Respondents and against the Appellant.

Now, looking at the claims before the Court, it is obvious that the main or principal relief sought by the Appellant is for a declaration of title to the land in dispute. Being a declaratory relief, the burden was on the Appellant who sought the declaration to prove his case by adducing credible and sufficient evidence which must satisfy the Court that he is entitled to the declaration. To do that, the Appellant as Claimant had to rely solely on the evidence adduced by him, and not on the weakness of the defence, save where such weakness supports and therefore adds weight to such evidence. In other words, a declaration of title cannot be made without the Plaintiff calling evidence not even on admission by the Defendant. See Anuka v. Anukam (2008) NWLR (Pt. 1081) p. 455; Onovo & Ors v. Mba & Ors (2014) LPELR- 23035 (SC) per Ogunbiyi, JSC; Adebayo v Shogo (2005) 7 NWLR (Pt. 925) p. 467 Okelola v. Adeleke (2004) 13 NWLR (Pt. 890) p.307 and Tukuru & Ors v. Sabi & Ors (2013) LPELR-20176 (SC). Thus in the case of Onwubuariri & Ors v. Igboasoyi & Ors (2011) PELR-754 (SC) Onnoghen, JSC (as he then was) said:

“It is settled law that in an action for declaration of title to land, the onus is on the Claimant to satisfy the Court that he is entitled to the declaration sought on the pleadings and evidence thereon. Where the onus is not discharged, the weakness of the Defendant’s case will not be of any help to the Claimant.”

It therefore means that in an action for declaration of title to land, a Defendant who has not Counter-Claimed may decide not to call evidence. He may even fold his arms and not file any defence, but dare the Plaintiff to proof his case.

There are five (5) recognized modes or ways of claiming title to land in Nigeria. These were set out by the Supreme Court in the case of Idundun v. Okumagba (1976) 9-10 SC pp. 246-250 and has been followed in several other cases such as, Mogaji v Cadbury Nig. Ltd (1985) NWLR (Pt. 7) p. 393; Makanjuola v. Balogun (1989) 9 NWLR (Pt. 108) p. 192; Balogun v. Akanji (1988) 1 NWLR (Pt. 70) p. 301; Obieche v. Akusobi (2010) 12 NWLR (Pt. 1208) p. 383; Okonki v. Njokanma (1999) 14 NWLR (Pt. 638) p. 250; Agboola v. UBA Plc (2011) LPELR-9353 (SC); Orlu v. Gogo- Abite (2010) 8 NWLR (Pt. 1196) p. 307 and Ihkorone v. Hart (2000) 15 NWLR (Pt. 692) p. 840. Those tested and established ways are:

(a) By traditional history or evidence:

(b) By production of documents of title.

(c) By proving acts of ownership, such as selling, leasing, renting out or farming on all or part of the land, extending over sufficient length of time or which are numerous and positive enough as to warrant the inference that the person is the true owner.

(d) By proving acts of long possession and enjoyment of the land.

(e) By proving possession of connected or adjacent land in circumstances rendering it probable that the Claimant is also owner of such adjacent or connected land.

The Plaintiff may make his claim through one or more of the above stated modes of establishing title to land.

In the instant case, the pleading of the Appellant show clearly that he lays claim to the land in dispute through the production of title document. This he did by pleading in Paragraphs 7, 8 and 9 of the Statement of Claim as follows:

7. Sometimes in 2001, the said Mr. Olaniran Babalola having become full of age and in appreciation of the loyalty of the Plaintiff to him decided to sell a 3/4 Plot of land to the Plaintiff so that he could get money to take care of himself.

8. The said Mr. Olaniran Babalola indeed sold the said piece of land to the Plaintiff and a land agreement was entered between the parties.(Copy of the said Agreement will be relied on during trial).

9. The said Mr. Babalola died in the year 2002 after selling the said piece of land to the Plaintiff and duly signed the necessary documents.

At the trial, the Appellant led evidence along those pleaded facts. He did that when he testified as the P.W.1. he stated in page 52 lines 11 – 13 of the Record of Appeal that:

“When Pa Olaniran sold the land to me, there was a document made as evidence of the transaction. I can recognize the document if I see it.”

After identifying the document, it was tendered through him and admitted in evidence as Exhibit ‘A’.

It is not in doubt, as laid down in the case of Idundun v. Okumagba (supra), that the production of documents of title is one of the five recognized ways by which a Plaintiff may prove ownership of land. Such documents of title must be duly authenticated in that their due execution must be proved unless they are produced from proper custody in circumstances which gives rise to the presumption of due execution in the case of documents which are 20 years old or more at the date of the transaction. See Thompson v Arowolo (2003) 7 NWLR (Pt. 818) p. 126 at 208.

However where the Plaintiff relies on and tenders documents of title as his source of title, the Court has the inevitable duty to inquire on the following questions;

(a) Whether the document of title is genuine and valid;
(b) Whether it has been duly executed, stamped and registered;
(c) Whether the grantor had the authority and capacity to make the grant;
(d) Whether in fact the grantor had what he purported to grant; and
(e) Whether it has the effect claimed by the holder of the instrument.

It therefore means that, the mere production of a document of title, even though valid on its face, will not necessarily carry with it automatic relief by grant of the declaration of title sought. The Court will have to satisfy itself by taking into consideration the above enumerated factors. See Romaine v. Romaine (1992) 4 NWLR (Pt. 238) p. 650; Akinduro v. Alaya (2007) All FWLR (Pt. 381) p.1653 at 1665; Ngene v. Igbo (2000) 4 NWLR (Pt. 651) p.131; Lawson & Anor v. Ajibulu & Ors (1997) 6 NWLR (Pt. 507) p. 14 and Okunowo v. Molajo All FWLR (Pt. 590) p.1386 at 1396-1397. See also Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) p.1.

In the instant case, the learned trial Judge after evaluating the evidence held at page 89 lines 12 – 28 as follows:

“Where a land owner whose estate is governed by Customary Law dies intestate, such land devolves to his heirs in perpetuity (sic) as family land. See Olowosago & Ors v. Adedayo & Ors (1988) 4 NWLR (Pt. 88) 275.

Since the Plaintiff derived his title to the land in dispute from Olaniran Babalola, and the latter has been found not to have any title to the land, the doctrine of Nemo dat quod non habet applies to prevent Olaniran Babalola from transferring that which he did not have to the Plaintiff – See Ebueku v. Amola (1988) 2 NWLR (Pt. 75) 128.

Having found that the Plaintiff’s Vendor, that is Olaniran Babalola had no colour of right to sell the land in dispute to the Plaintiff, I think it is pointless making any comments on the Land Purchase Agreement. Exhibit A tendered by the Plaintiff suffice it to say that the document, Exhibit A on which he based his title has no evidential value.”

Now, it is trite law that the primary duty of appraising and ascribing probative value to the evidence adduced at the trial, lies at the bosom of the trial Judge. Consequently, where the trial Judge has properly evaluated and ascribed the right value to the evidence adduced, this Court will not interfere with the evaluation of the evidence done by the trial Court. Since the law presumes the judgment of a Court of competent jurisdiction to be correct, the burden will be on the Appellant who challenges the findings and conclusions of the trial Court, to demonstrate to the appellate Court how the findings and conclusions of the trial court are erroneous. In the instant case, from the evidence adduced at the trial, the learned trial Judge rightly, in my view, held that the Appellant’s Vendor had no title to the land which he could transfer to him (Appellant).

It is for the above reasons and the other reasons adumbrated in the lead judgment, that I agree with my learned brother that this appeal is lacking in merit. It is accordingly dismissed. Consequently, I affirm the judgment of the Court below, delivered on the 15th July, 2005. I abide by the order on costs.