MR. LANRE ODUBOTE v. MRS. E. OLAYEMI OKAFOR
MR. LANRE ODUBOTE v. MRS. E. OLAYEMI OKAFOR
In The Court of Appeal
Ibadan Judicial Division
On Tuesday, the 17th day of January, 2012
Suit No: CA/I/73/2008
Before Their Lordships
STANLEY SHENKO ALAGOA (OFR) ……. Justice, Court of Appeal
ADZIRA GANA MSHELIA ……. Justice, Court of Appeal
MODUPE FASANMI ……. Justice, Court of Appeal
MR. LANRE ODUBOTE – Appellant
MRS. E. OLAYEMI OKAFOR – Respondent
Taiwo Taiwo with Lucky Ekarume – For the Appellant
O. B. Adeshokan – For the Respondent
ADZIRA GANA MSHELIA, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the Judgment of Ogun State sitting at Ota delivered by Solanke J. on the High Court on the 16th day of February 2006.
The plaintiff (now Respondent) commenced an action at the Ogun State High Court, initially against three defendants but the names of the 2nd and 3rd defendants were struck out as parties in the case on 6th March, 1996 and 3rd April, 2001 respectively. Plaintiff/Respondent filed an amended statement of claim on 16th March 2005. See page 69 of the record. The Plaintiff claims from the defendant as follows:-
"(i) A declaration that the plaintiff is the person entitled to the right of occupancy of the land in dispute situate lying and being at Salami Asoroshe Avenue now Wakati Adura Avenue Mapara Village Isheri in Ifo Local Government Area of Ogun State which land measures approximately 1126.207 square metres and is part of land shown on plan No.J027E/75 drawn by J. Olushola Ogunsanya licenced Surveyor, attached to the Deed of conveyance dated the 15th day of May, 1975 and registered as No 70 at page 70 in volume 1569 of the land Registry in the office at Lagos but which land by virtue of the creation of states in 1976 now falls within Ogun State. The said land is more approximately described and delivered in Plan No.SAC/OG/004B&C/94 and as plots B and C in plan No.SAC/04/004A-D both plans dated 23/02/94 and drawn by S. O. O. Ajayi Registered surveyor.
(ii) Possession of the land in dispute, which the defendant wrongfully and forcefully took from the plaintiff during the pendency of this suit.
(iii) The sum of N5,000,000.00 (Five Million Naira) as general damages against the defendant.
(iv) perpetual injunction restraining the defendant himself and his agents, privies and assigns from remaining on the land in dispute. The plaintiff claims substantial costs"'
The Defendant (now Appellant) predicated his defence on the further amended statement of Defence dated 14th December, 2006 and filed on 15th December, 2006. See pages, 99 – 102 of the record. The plaintiff/Respondent also filed an amended Reply on 12th January, 2007 as contained on pages 103-105 of the record to the further Amended Statement of Defence.
Trial commenced. The Plaintiff (now Respondent) called 6 witnesses in proof of her claim and tendered Exhibits. While the Appellant called four witnesses and similarly tendered exhibits. In a well considered Judgment appearing at pages 235 – 270 of the record the learned trial judge had this to say:-
"(i) It is hereby declared that the plaintiff is the person entitled to the right of occupancy of the land in dispute situate tying and being at Salami Asoroshe Avenue now Wakati Adura Avenue Mapara Village Isheri in Ifo Local Government Ara of Ogun State, which land measures approximately 1126.20 square metres and is part of and shown on Plan No.JIS7E/75 drawn by J. Olushola Ogunsanya licensed Surveyor, attached to the Deed of conveyance dated the 1st day of May, 1975 and registered as No. 70 at page 70 in volume 1965 of the land Registry in the office at Lagos but which land, by virtue of the creation of states in 1976 now falls within Ogun State. The said land is more approximately described and delineated in Plan No. SAC/04/1004 AD/94 but plan dated 23/02/94, and drawn by S. O. Ajayi Registered Surveyor.
(ii) Possession of the land in dispute which the defendant wrongfully and forcefully took from the plaintiff during the pendency of the suit is hereby granted to the plaintiff
(iii) The sum of N100,000.00 (Hundred Thousand Naira) is hereby awarded as general damages act the defendant.
(iv) A perpetual injunction restraining the defendant himself and his agents, privies and assigns from remaining on the land in dispute.
Cost of the action is awarded to the plaintiff in the sum of N10,000.00."
Dissatisfied with the decision defendant now appellant lodged an appeal to this court vide his Notice of Appeal dated 21st February, 2007 containing eight grounds of appeal. See pages 271-273 of the record.
In compliance with the practice of this court parties filed and exchanged briefs of argument. Appellant filed appellants brief of argument on 2/10/2008 but same was deemed properly filed on 8/10/2008. Respondent filed her brief of argument on 6/10/2009 but same was deemed properly filed and served on 11/5/2010. At the hearing of the appeal on 20/10/2011 Appellant's counsel Taiwo Esq. adopted the appellants brief of argument and urged the court to allow the appeal. Respondent's Counsel Adeshokan Esq. similarly adopted respondents brief of argument and urged the court to dismiss the appeal.
Appellant formulated three issues for determination in this appeal as follows:-
(i) Whether the respondent in this appeal had the locus standi to institute or initiate his action at the lower court, the land in dispute having being compulsory acquired by the acquitted by the Federal Government of Nigeria and whether the action of the plaintiff at the lower court was competent.
(ii) Whether the identity of the land in dispute was successfully proved by the respondent to entitle her to judgment in the lower court.
(iii) Whether the respondent successfully proved or established a better root of title to the Land to entitle her to judgment in the lower court.
Respondent also distilled three issues for determination but issues (ii) and (iii) are as formulated by the appellant. The issues are:-
(i) Whether the respondent in this Appeal had the locus standi to institute or initiate this action at the lower court having regard to the allegation by the Appellant that the land in dispute fell within the Federal Government Acquisition.
(ii) whether the identity of the Land in dispute was successfully proved by the respondent to entitle her to judgment in the lower court.
(iii) whether the Respondent successfully proved or established a better root of title to the land in dispute to entitle her to Judgment in the lower court.
In determining this appeal I will adopt the issues formulated by the appellant. Respondent's issues are not substantially different from that of the appellant. I will also treat the issues serially.
Issue 1 covers grounds (i); (ii); (iii); (iv) and (vii) as contained in the Notice of Appeal,. The complaint of the appellant under issue 1 is whether respondent had the locus standi to initiate the action at the lower court since the land in dispute was compulsorily acquired by the Federal Government. The second arm is whether the action of the respondent at the lower court was competent. Appellant's counsel commenced his argument by reference to the observation of the learned trial judge at page 256 lines 17-20 of the record. Learned counsel submitted that the learned trial judge did not follow the principles laid down in the case of Makeri us. Kafinta (1990) 7 NWLR (pt.163) 421 and Metilelu vs. Okoro Opejo (2000) AFWLR 418 as he raised issues which were never placed before him by any of the parties to the action. The issues are whether notice of acquisition of the land was ever forwarded to the respondent and whether compensation had been paid by the Federal Government to the respondent. Learned counsel referred to exhibit D6 and D7 and contended that the plots in question had been compulsorily acquired by the Federal Government in 1977 and duly gazetted. It was his contention that the respondent had no justifiable cause of action or locus standi to bring the action at the lower court and was not a competent party before the court. See Lawal & Ors. vs. Younan & Sons Co. (1961) All NLR 245 and Makeri Vs. Kafinta Supra. Counsel submitted that the learned trial Judge declared the acquisition by the Federal Government as void despite the fact that none of the parties asked for such relief. Reliance was placed on Ekpeyong & 3 Ors vs. Inyang Effiong Nyona & 6Ors (1975) 2 SC 77 at 80-87. See also Ige vs. Olunloyo (1981) 1 SC 258 at 276 and Union Beverages Ltd vs. Owolabi (1988) 1 NWLR (pt.68) at 128. Furthermore, counsel contended that once the lower court had found out that the land had been acquired rightly or wrongly by the Federal Government he should have declared the proceedings at the lower court a nullity and strike out the case. Counsel urged the court to so hold. It was also submitted that, if the trial court had no jurisdiction to entertain the matter then it certainly had no jurisdiction to award general damages of N200,000.00 to the appellant. Learned counsel also urged the court to set aside the award of general damages.
The respondent's response is as stated under issue 1. Respondent's counsel contended that the learned trial judge was right in holding that the respondent had the locus standi to institute this action. Learned counsel submitted that it was the Appellant that first raised the issue of Federal Government Acquisition of the said parcel of land in his Amended statement of Defence dated 21st June, 2000 which the respondent denied in her Amended Reply dated 17th January,2007. The burden of proof therefore lies upon the Appellant which burden he was unable to discharge successfully. Reliance, was placed on S.135 of the Evidence Act and the case of Elemo & Ors. vs. Imolade (1968) NMLR 359. Counsel submitted that the case of Makeri v. Kafinta (supra) heavily relied upon by Appellants counsel is in support of the position of the learned trial judge that the Appellant failed to prove the fact of acquisition. See the relevant portion of the decision in Makeri v. Kafinta (supra) page 412 from line 6. It was therefore submitted that Makeri v. Kafinta is distinguishable from the appeal herein. Learned counsel contended that the learned trial judge was right in holding that there was no acquisition of the Respondent's land. Counsel argued that Appellant failed to give DW4 the respondent's own survey plan when he knew that his own survey plan and that of the respondent did not fall on the same place. That respondent's land as per her Amended statement of claim dated 16th March, 2005 measured 1,126.207 Square Metres while the Appellant's land as per his further amended statement of Defence dated 14th December 2006, measured 1,181 Square Metres. It was further argued that if it is true that the land was acquired by the Federal Government why did he (appellant) continue to construct upon the said land inspite of the court's injunction restraining the parties from doing anything on the land.
Respondent's counsel further submitted that the learned trial judge never made a finding that the land in dispute was acquired by the Federal Government. Nowhere in his ratio decidendi did the learned trial judge hold that the acquisition by the Federal Government was void. Counsel submitted that it is wrong and a misconception of the law for the Appellant to conclude that once, a gazette is waived to the court regarding any acquisition of land that would be the end of the case. He contended that, it is not the law, for the processes associated with compulsory acquisition of land must be completed before there can validly be a acquisition. Reliance was placed on the case of Provost Lagos State College of Education & Ors v. Dr. Kolawole Edun & Ors. (2004) All FWLR (Pt.201) 1628 at page 1650 paras E – F and Page 1650 – 1651 paras H – A.
Learned counsel also urged the court to discountenance the cases of Etim Ekpenyong & 3 Ors v. Inyang Effiong Nyong & 6 Ors; Ige vs. Olunloyo (1984) 1 SC 258 and Union Beverages Ltd. vs. Owolabi (1998) NWLR (Pt.68) 128 cited by Appellant's counsel as same are not on all fours with the appeal herein. They are therefore not relevant.
The contention of the Appellant as regards issue 1 is that the land in dispute had been compulsorily acquired by the Federal Government as such respondent had no locus standi to institute or initiate this action at the lower court. The question is, is there evidence to support the claim of the Appellant? The Appellant first raised the issue of Acquisition of the said parcel of land in dispute in paragraph 14 of his further Amended statement of Defence dated 14th December, 2006. The Respondent denied this fact in paragraph 12 of her amended reply to the further amended statement of defence. See pages 99-102 and 103-105 of the record of appeal. In support of appellant's assertion that the land in dispute had been acquired by the Federal Government, exhibits D6 and D7 were admitted in evidence through him. DW4 surveyor, Daodu Emmanuel the resident surveyor attached to the Ojodu Isheri Zonal office of the office of the Surveyor General of the Federation identified exhibits 'D6' and 'D7'. DW4 stated in his testimony that appellant came to their office in the year 2000 requesting for the charting of his plan to determine whether it is within Federal Acquisition. Upon the request he went to the site and measured it and checked the coordinates described in the plan exhibit 'D2'. He discovered that it fell within the Federal acquisition. Under cross-examination he said he does not know the Respondent and he also do not know anything about her plan. It is evident from DW4's testimony that Respondent's Plan was not charted by him. As rightly observed by the learned trial judge exhibit 'D6' the letter was written in respect of and with reference to the appellant's survey Plan No. APAT/OG/242 A-B/1993. A close examination of the gazette exhibit 'D7' also showed that the land which forms the subject matter of this acquisition is described on the second page under the description column as "All that piece of or Parcel of land to the North West of Isheri-Oke in the Lagos State of Nigeria —." The description suggests that the acquisition only affected Land in Lagos State and not in Ogun State which was created prior to this in 1976.
As rightly observed by the learned trial Judge it was the duty of the appellant who asserts that the land in dispute is under Federal Acquisition to establish it. Appellant ought to have exhibited the survey Plan showing the extent of the acquisition which was referred to in the gazette. I agree with the observation of the learned trial Judge that the failure of the appellant to exhibit the survey Plan of the area acquired compulsorily by the Federal Government is fatal to his assertion that the Land in dispute is under Federal Acquisition particularly as the gazette states categorically that the area of acquisition is limited to Lagos State. It is also necessary to note the description of the land in dispute as presented by PW1 and DW3 respectively. PW1 stated in his testimony that the land being claimed by the defendant is not the same as the land in dispute, according to the plan given to him which was made by surveyor Apatira. DW3 stated in his testimony after examining the site plans of the parties that the land of the Plaintiff and that of the defendant are not on the same place. As earlier stated, DW4 did not chart Respondent's Plan and the testimonies of PW1 and DW3 seems to suggest that appellant's Plan covers a different piece of land near that of the respondent. With this observation it is difficult to say with certainty that exhibit 'D7' covered the area referred to in respondent's Plan. It appears Appellant just introduced his plan to confuse issues. No weight will be attached to Appellant's plan. I entirely agree with the submission of Respondent's counsel that there is no evidence of acquisition of Respondent's piece of Land. From the pleadings and the evidence adduced. Respondent had justifiable cause of action or locus standi to initiate the action at the lower court and was therefore a competent party before the court. The case of Makeri vs. Kafinta (supra) heavily relied upon by Appellant's counsel is distinguishable from the case at hand, In the instant case as earlier stated, Appellant failed to prove the fact of acquisition as such the lower court had jurisdiction to entertain the Respondent's claim before it. I will therefore resolve issue 1 in favour of the Respondent.
The second issue for determination is whether the Respondent proved the identity of the Land in dispute to entitle her to judgment in respect of same. Learned counsel submitted that the identity of the Land in dispute was raised as an issue at the lower court. Counsel referred to paragraph 5 of the Respondent's statement of claim appearing at page 67 of the record of proceedings and paragraph 7 of the Appellant's statement of defence also appearing at page 100 of the record of proceeding. Respondent's contention is that the land in dispute which she purchased is located at Salami Asoroshe Avenue which was subsequently changed to Wakati Adura Avenue. Appellant on the other hand stated that since the year 1984 when he purchased the land in dispute it had been named Wakati Adura Avenue and had never been called Salami Asoroshe Avenue. Learned Counsel submitted that from the evidence at the trial at the lower court Respondent was claiming a land at Salami Asoroshe while the Appellant was claiming land at Wakati Adura Avenue. Learned counsel referred to the testimony of PW3, who said the Appellant's Land was about one hundred metres away from that of the Respondent. It was contended that the available evidence clearly showed that there was doubt as to the identity of the land in dispute as such the learned trial Judge was in error to have declared the of the Land in dispute in favour of the Respondent. The Respondent failed in her Primary duty to discharge the onus of proving the area of land which she claimed. Counsel urged the court to set aside the declaration of title in favour of the Respondent having failed to prove the identity of the land in dispute.
On the part of the Respondent, it was submitted that the Respondent as the plaintiff in the court below discharged the onus on her satisfactorily.Learned counsel contended that the evidence of the Respondent together with the pieces of evidence both oral and documentary of her witnesses how clearly the identity of the land in dispute. Counsel relied on the testimonies of PW4 and PW6 in support of his contention that Respondent had clearly proved the identity of the land in dispute. Learned counsel submitted that PW4 gave a clear description of the Land in dispute and any licensed surveyor could identity plots B and C as such Respondent has met the requirement of the Law as laid down in Akinolu Baruwa vs. Ogunsola (1938) 4 WACA 159 and Ate Kwadzo vs. Robert Kwasi Adijei (1944) 10 WACA 274. It was further contended that the fact that different names are at one time ascribed to the area where the land is located is immaterial: Reliance was placed on the case of Makanjuola vs. Balogun (1989) 3 NWLR (pt.108) 192 at 204 paragraphs C-D, Learned counsel also referred to the testimony of PW3 which appeared at page 161 of the record and submitted that the witness also confirmed the identity of the land in dispute. Learned counsel submitted that from the totality of the evidence adduced before the trial court both the Respondent and the Appellant knew the Land in dispute but that Appellant is being mischievous if he claims not to know the land in dispute. Counsel referred to Appellant's statement stated under cross-examination at page 197 from line 17 of the record. DW1 (appellant) stated thus:
"—-they to paste court processes on the fence and gate of the house, and prevented work, it is not true that I did not stop construction. I did after the processes were pasted. I am not aware that the plot of the land has been fully built up. I have not been there in the past eight years."
Counsel finally urged the court to hold that from the totality of the evidence both oral and documentary proffered before the trial court, the Respondent discharged the onus on her creditably. That the submission of the Appellant, that the identity of the land in dispute was not proved is a misconception of the Law and the facts of the case,
The first duty of a Plaintiff who comes to court to claim a declaration of title is to show the court clearly the area of land to which his claim relates and this can be done by:
(i) Giving such oral description of the land that any surveyor acting on such description can produce a plan of the land he claims.
(ii) Filing a plan reflecting all the features of the land and showing clearly the boundaries. See
Akinolu Baruwa vs. Ogunsola and Ate
Kwadzo vs. Robert Kwasi Adijei (supra).
Respondent pleaded the location of the land in dispute in paragraph 3 of the Amended Statement of defence at page 67 of the record as follows:
The plaintiff is the person entitled to the right of occupancy of the land in dispute which comprises two plots measuring approximately 1126.207 square metres, and is situate at Mapara village; Isheri-Oke (also known as Isheri church) which area the Ogun State Government has now renamed River valley Estate in Ifo Local Government.")
Respondent adduced both oral and documentary evidence in proof of the identity of the land in dispute. PW3, PW4 and PW6 confirmed the identity of the land in dispute. Apart from the oral testimony documentary evidence was adduced to show the area of land in dispute. Respondent tendered site plans and composite plans to show clearly the identity of the Land in dispute. see Exhibit A, B, C and G1 A-C and G2 A-C respectively. In paragraphs 4 and 5 of the Appellant's further amended statement of defence he pleaded different location from that stated by the Respondent. It is settled principle of law, that when the identity of a land is in issue, the determination of the claim and respective rights of the parties can only be resolved upon the production of composite plans by the parties. See Emordi vs. Kwentoh (1996) 2 NWLR (Pt.433) 556 at 679 paragraph C. The identity of a land in dispute is not to be determined by the names both parties decide to call it but by production of credible evidence as names do not change the relative position of any land. In Assam vs. Okposin (2001) FWLR (Pt.56) 630 at 640 paragraphs B – C, this court observed as follows:-
In respect of the identity of the land in dispute…, the true identity of the land does not depend on the names that the parties choose to call them and that the criteria for knowing the identity of the land is by ascertaining its boundaries, distinctive features and the location of the land as has been established by pleadings and credible evidence"The fact that Appellant stated that the land subject of litigation is situate along Wakati Adura Avenue is not fatal to the Respondent's case. From the available evidence it appears parties are clear as to the identity of the land in dispute. Where the parties from the evidence are clear as to the identity of the Land in dispute, the fact that different names are given to it or the area it is located cannot affect the case. see Anomire vs. Anoyemi (1972) 1 All NWL (pt.1) 101 and 113 and Makanjola vs. Balogun (1989) 3 NWLR (pt.108) 792 at 204. Appellant cannot say that the identity of the land is not known to him because when injunction was ordered by the court, Appellant did not stop construction on the land in dispute. It is instructive to note the response of the Appellant (DW1) at page 197 of the record from line 17 wherein he stated during cross examination thus:-
"—They came to paste court processes on the fence and gate of the house, and prevented work. It is not true that I did not stop construction. I did after the processes were pasted. I am not aware that the plot of the land has been fully built up. I have not been there in the past eight years."
From the totality of the evidence both oral and documentary adduced before the trial court I am of the considered view that Respondent had discharged the onus on her creditably. The Respondent had clearly shown the area of land to which her claim relates. For the reasons stated I would resolve issue 2 in favour of the Respondent.
The complaint of the Appellant under issue 3 is whether the Respondent successfully proved or established a better root of title to the land to entitle her to judgment in the lower court. Appellant contended that the court found as a fact that the Ajagunjeun families were the predecessors in title to the Respondents vendor. However, the respondents failed to show any traditional history of their predecessors in title at the lower court. Appellant contended further that he gave traditional historical history of his predecessors in title on the land and called evidence of the traditional owners of the Land to show that the said land in dispute was part of a vast land originally owned by the Ademuwagun Ewenla Muarapa Ipaye family and forms part and portion of a larger vast area of land originally owned by Pa Ademuwagun Ewenla Muarapa Ipaye. It was submitted that the available evidence showed that Respondent's title was defective and that the vendors that sold to the respondent had nothing to pass based on a defective title. Reliance was placed on the case of Kareem vs. Ogunde (1972) 1 SC 182, Learned counsel submitted that Appellant was able to discredit the oral and documentary evidence of root of title put forward by the respondent and the proper order which the trial court ought to have made was one of dismissal of the respondent's action. See Awomuti vs. Salami (1978) 3 SC 105. That the learned trial judge was in error in holding in the judgment at page 267 of the record that the Appellant did not show any cogent evidence as to how his supposed predecessors in title came to be seized of the land in dispute. He finally urged the court to set aside the judgment of the lower court and allow the appeal.
On issue 3 the respondent submits that she proved her ownership of the land in dispute successfully before the trial court. It is settled law that there are five ways by which ownership of land could be proved. See Sunday Pairo vs. Chief Wopnu Tenalo & Anor (1976) 12 SC 31 at pages 42 & 43. As stated by the Supreme Court in the case of Nwosu vs. Udeaja (1990) 1 NWLR (Pt.125) 188 at 218 paragraphs E-F, each of the five methods of proving title will suffice independent of the others to prove the title. Learned counsel submitted that what the Appellant is canvassing in this Appeal is what the Supreme Court referred to as misdirection in Nwosu vs. Udeaja (supra). Respondent submits that evidence by way of traditional history was not in issue. It was contended that if the case of the Appellant is based on traditional history then he has failed to meet the requirement of the law and should be disregarded. Reliance was placed on Sunday Ukwu Eze & 6 Ors. vs. Gilbert Atasie & 3 Ors (2000) 6 SC (part 1) 214 at 220. Appellant also failed to prove traditional history in his pleadings. Learned counsel further submitted that the case of the Respondent was not premised on any traditional history but on the fact that her ownership of the land in dispute was proved by production of documents of title duly authenticated and duly executed. That she also proved her ownership by proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See Idundun vs. Okumagba (1976) 1 NMLR 200 at 210 and 211 Paragraph 3.
Learned counsel submitted that exhibit 'D3' and 'D4' relied upon by Appellant in proof of his traditional history being documents affecting land in Ogun State ought to have been registered and failure to do so is fatal to the case of the Appellant and they should be expunged from the record. Reliance was placed on the cases of:
Sauannah Bank Plc vs. Ibrahim (2000) FWLR (pt.25) 1626 at 1647; Brosette Manufacturing Nigeria Limited vs. M/S Ola Ilemobola Ltd and 3 Ors (2007) all FWLR (Pt.379) 1340 at 1367-1368 paras F-C; Akinduro vs. Alaya (2007) All FWLR (pt.381) 1853 at 1666-1667 paras H-B; West African Cotton Ltd vs. Haruna (2008) 13 WRN 130 at 150 and Akin Adejumo & 2 ors vs. Ajani Yusuf Ayantegbe (1989) 3 NWLR (Pt.110) 417. Counsel contended that the Appellant failed woefully as he neither gave any evidence of traditional history nor gave evidence of ownership under any of the remaining four ways of proving any interest in the land the subject of this appeal. On the whole counsel urged the court to hold that the learned trial judge correctly evaluated the evidence placed before him and that his judgment should be affirmed. Counsel urged the court to dismiss the appeal with substantial costs.
There are five ways of establishing title to land. In Alli vs. Alesinloye (2000) FWLR (Pt.15) 2610 at 2632 paras B – D Iguh JSC had this to say:-
"Now the law is well settled that there exist five recognised methods by which ownership of land may be established. These briefly comprise as follows:-
(i) Proof by traditional history or traditional evidence.
(ii) Proof by grant or production of document of title.
(iii) Proof by acts of ownership extending over a sufficient length of time numerous and positive that the persons exercising such acts are the true owners of the land.
(iv) Proof by acts of long possession and
(v) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute."
See also the classicus case of Idundun vs. Okumagba (1976) 9 – 10 SC 227.From the pleading and preponderance of evidence before the court the Respondent has established her claim for declaration of title, possession and injunction. Respondent as (PW5) adduced credible and cogent evidence to the effect that she bought the land from Hon. Justice Adebayo Adeniji and his Wife, through their agent one Chief Okunowo (PW4). She was given a receipt (Exhibit 'H) and a conveyance (Exhibit 'D'). PW1, PW2, PW3, PW4 and PW6 led cogent evidence in support of Respondent's claim. It is clear that Respondent in this case relied on the documents of title of her vendors Hon. Justice Adeniji and his wife. The conveyance (exhibit D) was registered in 1975. It is trite that one of the five ways of proving title is by production of documents of title. In Thompson vs Arowolo (2003) 7NWLR (Pt 818) 126 at 208 the Supreme Court per Ejiwunmi JSC(of blessed memory) stated:
"Now it is settled that the production of document of title is one of the five recognised ways by which a plaintiff may prove ownership of land. See Idundun vs. Okumagba (supra). Such documents of title must be duly authenticated in the sense that their due execution must be proved unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of document of 20 years old or more at the date of contract. See Section 129 of the Evidence Act 1990."
See also the case of John Kobina Seys Johnson & Ors. vs. Irene Ayinke Lawson & Anor (1971) 1 All NLR 56. The Appellant did not lead evidence to impugn the said conveyance.
The Appellant had no counter-claim as such he need not prove anything. However if he disputes the title of the Respondent then he has to adduce cogent evidence to contradict that of the Respondent. In a bid to challenge the title of the Respondent the Appellant relied upon the Power of Attorney and Statutory Declaration given to him by his vendors. The said documents were admitted in evidence as Exhibits 'D3' and 'D4' respectively. As rightly submitted by Respondent's counsel the two documents are registrable instruments being documents affecting title to land. It is evident that exhibits 'D3' and 'D4' are unregistered land instruments and are therefore inadmissible in evidence. Section 16 of the Land Instrument Registration Law cap 53 Laws of Ogun State 1978 states that:
"No Instrument shall be pleaded or given in evidence in any court as affecting any land unless same shall have been registered n the proper office as provided in Section 3."
See Ogbimi vs. Niger Construction Ltd (2006) 7 MJSC 154 at 768-769. The learned trial judge rightly placed no reliance on exhibits 'DW3' and 'D4' in the course of writing the judgment. The documents are inadmissible and ought to be expunged. Since the documents are not admissible it means Appellant had failed to adduce cogent evidence in support of his root of title which can be said to be better than that of the Respondent.
Appellant had contended in his brief that he gave traditional history of his predecessors in title on the land in dispute. It is trite that a party who relies on traditional evidence in proof of title to land, must plead and prove who founded the land; how the land was founded; and particulars of the intervening owners. See Achiakpa vs. Nduka (2001) 9 MJSC 137 at 160; Olujinle vs. Adeogbo (1988) 2 NWLR (Pt.75) 238; Anyawu vs. Mbara (1992) 5 NWLR (Pt.242) 386 at 399; Ogunleye vs. Oni (1990) 2 NWLR (Pt.135) 745 and Sunday Ukwu Eze & 6 ors vs. Gilbert Atasie & 3 ors (2000) 6 SC (Part 1) 214 at page 220. In Sunday Ukwu Eze vs Gilbert Atasie (supra) at page 220 the Supreme Court had this to say:-
"The law is that to establish the traditional history of land relied on as root of title a plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained. In other words, the pleading of the devolution and evidence in support must be reliable being credible or plausible; otherwise the claim for title will fail. See Akinloye vs. Eyiyola (1965) NMLR 92; Elias vs. Omo-Bare (1982) 5 SC 25; Mogaji vs. Cadbury Nigeria Ltd (1985) 2 NWLR (pt.7) 393; Owoade vs. Omitola (1988) 2 NWLR (pt.77) 413 Chendu vs. Ogboni (1999) 5 NWLR (pt.603) 337."Apart from a brief reference made in paragraph 9 of the further amended statement of defence dated 14th December 2006 that the Ademuwagun Ewenka Muarapa Ipaye family were the true historical owners of the vast expanse of land, nowhere in the pleading did appellant plead traditional history in line with the requirement of the law. DW2 who gave evidence as the Appellant's vendor's representative did not give any oral evidence of how the Land came to be that of the family, or the traditional history of the land. Appellant has failed to meet the requirement of the law as regards proof of root of title to land in dispute based on traditional history. In the circumstance I will also resolve issue 3 in favour of the respondent.
From the totality of the evidence adduced and for the reasons stated hereinabove, I hold that this appeal is devoid of merit. Appeal dismissed. The decision of the lower court delivered on 16th day of February, 2006 is hereby affirmed. There shall be N30,000.00 costs assessed in favour of the respondent.
STANLEY SHENKO ALAGOA, J.C.A., OFR.: I have read in draft the lead judgment of my learned brother A. G. Mshelia, J.C.A. just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I dismiss same and affirm the decision of the lower court delivered on the 16th day of February 2006. I also abide by the award of costs stated in the lead judgment.
MODUPE FASANMI, J.C.A.: I had a preview of the judgment just delivered by my learned brother A. G. Mshelia J. C. A. She has admirably and satisfactorily dealt with all the issues that have arisen in the appeal.
I entirely agree with the reasoning and conclusion reached that the appeal is devoid of merit and it ought to be dismissed. I dismiss the appeal. I abide with the consequential orders made in the lead judgment.