AJOSE-ADEOGUN & ANOR v. OLOJEDE & ORS

CITATION: (2018) LPELR-43683(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON MONDAY, 22ND JANUARY, 2018Suit No: CA/L/445/2002

Before Their Lordships:

MOHAMMED LAWAL GARBA Justice, Court of AppealYARGATA BYENCHIT NIMPAR Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal

Between1. HON. JUSTICE (RTD) OLATUJIAJOSE-ADEOGUN(Suing for himself as head and on behalf of theSASORE-ABAPO chieftaincy family)2. CHIEF WAIDI AYENI(The Sasore of Lagos)(Suing for himself as principal member of theSASORE-ABAPO Chieftaincy family and on behalf ofother principal member of the SASORE-ABAPOchieftaincy family)

- Appellant(s)

And1. WING COMMANDER DR OLUSEGUN OLOJEDE2. MR SHAKIRU AKERELE(For himself as head and on behalf of oneArobieke family of Langbasa Village, Eti-Osa,Lagos State)3. ALHAJI LATEEF FAGBEMI4. CHIEF SAHEED ADENIYI SANNI5. ALHAJI GBADEBO ADESANYA6. ALHAJI ADESINA HASSAN

- Respondent(s)

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RATIO DECIDENDI1. ACTION - REPLY: When will it be necessary to file a reply to a defence to a counter claim

"The need to file an answer or reply to a defence to a counter-claim would only arise if theissue(s) raised therein was relevant in the determination of the counter-claimants' case, inwhich case the presumption of admission in the absence of such answer or reply, may beinvoked."Per GARBA, J.C.A. (P. 42, Paras. A-B) - read in context

2. APPEAL - REPLY BRIEF: Essence of a reply brief"As a reminder, under the provisions of Order 19, Rule 5 (1) of the Court of Appeal Rules,2016, the only purpose for which an Appellant's Reply is to be used is to deal with, answer orrespond to all new points arising from the Respondent's brief. A Reply brief is not an avenuefor reaction or response to all or every point canvassed in the Respondent's brief in answerto the Appellant's brief, or for the purpose of further arguments of an appeal on issuesalready argued in an Appellants' brief either for emphasis or in addition to the points alreadycanvassed therein Agala v. Okusin (2010) 10 NWLR (1202) 412; Ojukwu v. Obasanjo (2004)7SC (pt. 1) 117; Mini Lodge Ltd. v. Ngei (2009) 12 MJSC (pt. 1) 56; Oshoboja v. Amida (2009)12 MJSC (pt. 1) 96. Thus, where no new or fresh points are raised or arise from theRespondent's brief, an Appellant's Reply becomes unnecessary in an appeal since it is notmeant to be either a repair kit or for improvement of arguments canvassed on points in theAppellant's brief. Duzu v. Yunusa (2010) 10 NWLR (1201) 80; Olafisoye v. FRN (2004) 4NWLR (864) 580; Ojiogu v. Ojiogu (2010) 9 NWLR (1198) 1."Per GARBA, J.C.A. (Pp. 14-15,Paras. E-E) - read in context

3. APPEAL - INTERFERENCE WITH AWARD OF DAMAGES: Circumstances in which anappellate court will interfere with award of damages made by a trial Court"In the Appellants' case, the trial Court has ruled out the entitlement of the 4th-6thRespondents' to the damages they claimed either as special or general damages fortrespass. In the circumstances, there was no basis for a later-reversal of the decision tomake an award of the damages the 4th-6th Respondents were found not to be entitled to.The law generally, is still that an appellate Court would not ordinarily interfere with theaward of damages made by a trial Court and can only do so in established and recognizedcircumstances or situations. Kaydee Ventures Ltd v. Min, FCT (2010) 7 NWLR (1192) 171;Ajagbe v. Idowu (2011) 17 NWLR (1276) 422; Ero v. Tinubu (2012) 8 NWLR (1301) 104. Oneof such situations is where the award was made in disregard of the fact and evidence in acase as well as the relevant principles of law. In this regard, the trial Court could proceed toaward damages which it had found on the facts and evidence before it, were claimed orproved. The damages awarded was as or for compensation, which the 4th-6th Respondentsneither claimed nor proved. A Court not being a charitable institution is confined to thecases presented and reliefs claimed by the parties and cannot award a party a relief notclaimed, except it may be a consequential relief, or grant more than was sought or prayedfor by a party. Mustapha v. Bulama (1999) 3 NWLR (595) 376; Ajao v. Ademola (2005) 3NWLR (913) 636. The Court has the duty to interfere and set aside the award by the trialCourt in the circumstances of the appeal."Per GARBA, J.C.A. (Pp. 45-46, Paras. A-B) - read incontext

4. DAMAGES - AWARD OF DAMAGES: Guiding principles for the award of general damagesfor trespass"Ordinarily, generally damages may arise and be awarded where there was proof of the tortof trespass by a party against the exclusive possession of a piece of land by another party ora party who proves a better a title. Igbinovia v. Okomu Oil Palm Plc. (2002) 17 NWLR (796)386; SPDCN Ltd. v. Ekwems (2009) 4 NWLR (1131) 229."Per GARBA, J.C.A. (Pp. 44-45, Paras.E-A) - read in context

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5. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: What a party relying on traditionalhistory is expected to plead and prove to establish his root of title; effect of failure of a partyto prove same"First settlement presupposes deforestation of virgin land where no other persons had beenbefore and which is under no control or authority of any other persons or community.However, first settlement would include deforestation of a virgin land and conquest of theprevious persons or community on a land, and then settling on the land. Since undercustomary and traditional law, conquest is one of the modes or ways of acquiringownership/title to land, satisfactory proof by traditional evidence of such conquest, wouldground ownership/title to the land in question. Ajiboye v. Ishola (2006) 13 NWLR (998) 628;Mogaji v. Cadbury Nig. Ltd. In the absence of clear and positive avernments of fact of firstsettlement by their forbearer or that he in fact founded or deforested the land in dispute asa virgin land, the foundation of the claims by the Appellants to be the only true and bonafide original owners of the land, is absent from their pleadings. Where a plaintiff predicateshis claim for a declaration of title on traditional history, it would not be sufficient for him tomerely plead or barely assert that he and his predecessors in title had owned and possessedthe land in dispute since a particular period or from time beyond memory. The issue oforiginal ownership of land by traditional evidence is one of hard historical facts and aclaimant has a duty to plead specific and necessary facts and materials to sustain the titlebased thereon which must be proved as required by the law. Title to land based orpredicated on traditional history evidence cannot be established or proved by bareassertions or general sweeping statements of the claimant. See Olokunlade v. Samuel(2011) 17 NWLR (1276) 290. The basis of the claim by the Appellants' on the ground of firstsettlement on the land in dispute by their forbearer, relying on fact of traditional historytherefore fails in these circumstances."Per GARBA, J.C.A. (Pp. 23-24, Paras. B-F) - read incontext

6. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: What is required of a person relying onevidence of traditional history in an action for declaration of title to land"The law is firmly settled over the years now, that in pleading traditional history in a claimfor declaration of title to land, the plaintiff or claimant has a duty and so is expected tonarrate the genealogical tree from the original owner, the ancestor in generationsappurtenant to him, down to the plaintiff/claimant. Put another way, the plaintiff is requiredto plead who founded the land he claims, the manner in which it was founded, and thecircumstances leading to it; e.g., first settlement or acquisition by conquest, and thesuccessive Persons to whom the land devolved from the founder, through an unbroken chainin such a way that there is no gap which is not or cannot be explained. See Akunyili v. Ejidike(supra); Nneji v. Chukwu (1996) 10 NWLR (478) 265; Anabaronye v. Nwakaihe (1997) 9NWLR (482) 374; Igbojimadu v. Ibeabuchi (1998) 1 NWLR (533) 179; Dike v. Okoloedo (1999)10 NWLR (623) 359; Odi v. Iyala (2004) 8 NWLR (875) 283; Irawo v. Adedokun (2005) 1NWLR (906) 199; Alikor v. Ogwo (2010) 5 NWLR (1187) 281."Per GARBA, J.C.A. (Pp. 18-19,Paras. F-D) - read in context

7. EVIDENCE - PROOF OF TITLE TO LAND: Ways of proving title/ownership of land"The law is also very well known that title to a piece or parcel of land can be proved byanyone of five ways, including traditional history evidence. The ways are: - (a) traditionalhistory evidence - Ezenwa v. Agu (2004) 3 NWLR (861) 431 @ 456; Ezeakabekwe v. Emenike(1998) 62 LRCN, 4855; (b) documents of title - Nnabuife v. Nwigwe (2010) 9 NWLR (719)710; Alli v. Alesinloye (2000) 6 NWLR (660) 117; Adeniran v. Alao (1992) 2 NWLR (223) 350;(c) by various acts of ownership, numerous and positive and extending over a length of timeas to warrant the inference of Ownership-Okafor v. Idigo (1984) 1 SCNLR, 481; Ebevuhe v.Ukpakara (1996) 7 NWLR (460) 254. (d) by acts of long possession and enjoyment of theland under Section 35 of the Evidence Act, 2011 (same provisions as in previous Acts). SeeAgbara v. Amara (1995) 7 NWLR (410) 712 @ 734; Atanda v. Ajani (1989) 3 NWLR (111) 511.(e) by proof of possession of adjacent land in circumstances which render it probable thatthe owner of such land would in addition, be the owner of the land in dispute. Piaro v. Tenalo(1976) 12 SC, 31; Nwosu v. Udeala (1990) 1 NWLR (125) 188; Oladipupo v. Olaniyan (2000)1 NWLR (624) 556."Per GARBA, J.C.A. (Pp. 19-20, Paras. D-E) - read in context

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8. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Whether a plaintiff can rely on theweakness of the defendant's case to prove his own case in action for declaration of title"In addition, a claimant for declaration of the title to land is to succeed in such a claim, onthe merit and strength of his own case and not on the weakness of the defendant's defenceor case, but can rely on defendant's evidence which support his own case, Clay Ind. Nig. Ltdv. Aina (1997) 8 NWLR (516) 208; Dike v. Okoloedo (supra); Oyeyemi (2008) 6 NWLR (1084)542."Per GARBA, J.C.A. (Pp. 20-21, Paras. E-A) - read in context

9. EVIDENCE - EVIDENCE ON UNPLEADED FACTS: Effect of evidence on facts not pleaded"The law is trite that evidence not supported by pleadings of a party goes to no issue and ofno probative value or worth in a case even if unchallenged and uncontroverted. Adimora v.Ajufo (1988) 6 SCNJ, 18; Awoyegbe v. Ogbeide (1988) 1 NWLR (73) 695; Adejumo v.Ayantegbe (1989) 3 NWLR (110) 417; Egbunike v. ACB Ltd (1995) 2 NWLR (375) 34; SPDCNv. Ambah (1999) 2 SCNJ, 152."Per GARBA, J.C.A. (P. 26, Paras. A-B) - read in context

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10. EVIDENCE - PROOF OF TITLE TO LAND: Whether a plaintiff can turn around to rely onacts of ownership and possession to prove his title to land where his evidence of traditionalhistory fails"The claims by the Appellants, of being in possession of and exercising rights of ownership ofthe land in dispute since the settlement of Chief Shasore-Abako, are clearly predicated;completely and entirely, on their claim of title and ownership by first settlement, discoveryor founding one of the modes or ways of acquiring title to land under customary law. Theclaim that the Appellants are the true and bona fide original owners of the land is based onthe claim of first settlement, discovery or founding by Chief Shasore-Abako. Since their claimto possession of and exercise of rights of ownership of the land in dispute are predicated onthe failed claim of first settlement, the Appellants cannot turn round to rely on the allegedpossession or exercise of the acts of ownership to claim title to the same piece of land asthere would be no foundation for such acts of possession and ownership. In the case ofFasoro v. Beyioku (1988) 2 NWLR (1976) 263, the Supreme Court has stated the law that -"One cannot relay talk of facts of ownership without first establishing that ownership. Wherea party's root of title is pleaded as say - a grant, or a sale or conquest, etc, that root has tobe established first, and any consequential acts following therefrom can properly qualify asacts of ownership. In other words, acts of ownership are done because of, and in Pursuanceto the ownership. Ownership forms the quo warranto of these acts as it gives legality to actswhich would have otherwise been acts of trespass." The law, as stated earlier, is that aclaimant who pleads traditional history as the root of his title to a piece of land, but fails toprove the root by that means, cannot turn round to rely on acts of ownership and possessionto prove his title to the land in question. Oyadare v. Keji (2005) 7 NWLR (925) 571;Orunengimo v. Egebe (2007) 15 NWLR (1058) 630; Alikor v. Ogwo (2010) 5 NWLR (1187)281; Anukam v. Anukam (2008) 5 NWLR (1081) 455. The trial Court was on the firm terrainof the law when it stated at page 17 of its judgement (Page 606 of the Record of Appeal)that: - "Without doubt where a party pleads and relies on a particular mode of acquisition ofhis root of title, he is under a duty to prove such mode of acquisition to the satisfaction ofthe trial Court before his claim of title can succeed. Where, however the radical title is notproved, it is long settled that it is not permissible to substitute a pleaded particular root oftitle that has failed with other matters such as acts of possession, numerous and positive towarrant the inferences of the ownership not pleaded as root of title. See: - 1. Chief Odofin vs.Isaac Ayo-Ola (1984) 11 S.C. 72 at 116-117; 2. Fasoro & Anor. vs. Beyioku & ors. (1988) 2NWLR (Pt. 76) 263; 3. Mogaji & Ors. vs. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7) 393 at 429.In law, there is a distinction between proof of title to land by traditional evidence and proofby acts of possession and ownership. As a general rule, a claimant who pleads acts ofpossession and ownership as his root of title to a piece of land, he relies on the presumptionof the law in Section 35 of the Evidence Act 2011 (Section 46 of the 1990 Act) thatpossession is presumed to be evidence of ownership of the land and anyone who allegesthat a party in possession is not the owner, bears the legal burden of proving the allegation.The presumption of the law on possession would not arise and/or avail a claimant whopleads and relies on a specific root of title to the land since the claim is based on a knownroot of title which must be proved satisfactorily or else the claim would fail, Balogun v.Akanji (2005) 10 NWLR (933) 394; Agbetu v. Akinboyo (2012) LPELR-9749 (CA). In claimsbased on traditional history as the root of title, acts of possession and ownership by theclaimant may only be resorted to where there are two (2) conflicting versions of thetraditional history evidence none of which is more probable, sufficient and conclusive toprove the title claimed by either of the parties. Balogun v. Akanji (supra); Oyadare v. Keji(supra); Odofin v. Ayo-Ola (1984) 11, SC, 72; Kojo II v. Bonsie (57) 1 WLR, 1223."Per GARBA,J.C.A. (Pp. 26-30, Paras. F-C) - read in context

11. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: When will conflict in traditional historyarise"In any case, conflict in traditional history evidence may only arise if it is pleaded andevidence given in respect of an identified piece of land about which there is no doubt ordispute between the parties. Put another way conflict in traditional history evidence by theparties can only arise if evidence given by both parties is in respect of the same piece ofland irrespective of the names given or ascribed to it by the parties."Per GARBA, J.C.A. (P.30, Paras. D-F) - read in context

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12. EVIDENCE - RELEVANT FACTS/EVIDENCE: Whether facts so closely connected with thefact in issue are relevant"As rightly stated by the trial Court, facts which, though not in issue, are so connected with afact in issue as to form part of a transaction, are relevant, whether they occurred at thesame time and place, or otherwise. Such facts are admissible in evidence in proof or disproofof facts in issue in judicial proceedings. Fawehinmi v. NBA (No.2) (1989) 2 NWLR (105) 558;B.O.N. v. Saleh (1999) 9 NWLR (618) 331; Anozie v. Obichere (2006) 3 NWLR (981) 145;Odon v. Barigha-Amange (No.2) (2010) 12 NWLR (1207) 13."Per GARBA, J.C.A. (Pp. 38-39,Paras. F-B) - read in context

13. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proofin civil cases; whether a plaintiff must succeed on the strength of his case and not on theweakness of the defence"Like in all civil matters, parties must succeed on the strength of their case which will bedecided on the preponderance of evidence or on the balance of probabilities, see Section134 of the Evidence Act, 2011. See also OLAIFA & ORS v. DAVID TANIMOMO & ORS (2017)LPELR - 43252(CA)."Per NIMPAR, J.C.A. (P. 47, Paras. B-D) - read in context

14. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: Whether traditional evidence of firstsettlement on the founding of land will not be admissible if not pleaded"Failure to plead clear and positive avernments of fact of first settlement by the forbearer orthat he ipso facto founded or deforested the land in dispute as a virgin land is fatal to theclaim of the Appellants. In OBI IZEDIUNO EZEWANI OBI v. NKADI ONWORDI & ORS. (1986)LPELR -124 (SC), the Supreme Court, OPUTA JSC at 42 - 43, paras G - B: "General speaking,all relevant facts are to be pleaded and if the traditional history of a party to an action is arelevant fact, then that history ought to be specifically pleaded failure to so plead will renderany evidence of such facts not pleaded inadmissible. The Trial Judge is bound to expungesuch evidence from the record when considering the Judgment."See GEORGE & ORS v. DOMINION FLOUR MILLS LTD. (1963) 1 ALL NLR 71 at 77; ANIEMEKAEMEGOKWUE v. JAMES OKADIGBO (1973) 4 SC 113 at 117. See also DEACON CHIEF ISAACFATIMEHIN v. CHIEF LAWANI (2014) LPELR - 23476 (CA), where LOKULO - SODIPE, JCA at 39 -40, paras C - A restated the position of the law that it is actually from a party's pleadingsthat the success or failure of the party's case flows."Per OBASEKI-ADEJUMO, J.C.A. (Pp. 48-49,Paras. B-A) - read in context

15. LAND LAW - ROOT OF TITLE: Whether a party who fails to prove a root of title can rely onanother mode of acquisition of title to land not pleaded by him"The law is also that a party who pleads a root of title by any of the established ways, butfailed to prove same, cannot turn round at the trial to seek or claim to rely on another rootnot pleaded by him Nnadozie v. Mbagwu (2008) 3 NWLR (1074) 363; Owhonda v. Ekpechi(2003) 17 NWLR (849) 326; Bello v. Sanda (2012) 1 NWLR (1281) 219."Per GARBA, J.C.A. (P.21, Paras. A-B) - read in context

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MOHAMMED LAWAL GARBA, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the

judgement of the High Court of Lagos State delivered on

the 27th September, 2002 in Suit No. LD/1339/94, in favour

of the 4th-6th Respondents. By their Amended Statement of

Claim, the Appellants had claimed the following reliefs

against the 1st-6th Respondents (then Defendants): -

"(1) An order of perpetual injunction restraining all

the 1st-6th Defendants herein whether by themselves,

their agents, servants, privies and howsoever

described from entering or remaining upon, taking

possession of or otherwise exercising any rights,

whether of purported ownership or sale over the

Plaintiff's 209 hectares (516.468 acres) landed

property situate, lying, known and being at Ijoyi

settlement generally in present day Eti-Osa Local

Government Area of Lagos State more particularly

described and shown in a declaration of interest

dated 15th March 1977 and attached to a Survey Plan

No. CSA 133 of 8th December 1976 both registered as

No. 95, page 95, volume 1614 at the Lands Registry,

Lagos.

(2) A declaration of title to the said 209 hectares

(515.468

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acres) Land and that the Plaintiffs are the persons

entitled to the rights of occupancy from the Lagos

State Government.

(3) Damages in the sum of N3, 000,000 against the

1st-6th Defendants jointly and severally for the

unlawful entry upon and dealings with the Plaintiff

said Landed property."

As can be gleaned from the facts of the Appellants'

pleadings, these claims were predicated on the traditional

evidence that their forebearer; one Chief Sasore-Abapo was

the first settler on the land they claimed.

The Respondents denied the claims by the Appellants, filed

their respective statements of defence and the 2nd and 3rd

Respondents as well as 4th-6th Respondents' counter-

claimed against the Appellants to which the Appellants filed

defence.

After the filing and exchange of pleadings by the parties,

the case proceeded to trial during which the Appellant

called seven (7) witnesses in proof of their claims while the

Respondents also called witnesses in support of their

respective cases. At the end of trial, the High Court

delivered the aforenamed judgement in favour of the

4th-6th Respondents and being dissatisfied therewith, the

Appellants

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brought this appeal, which by the 3rd Amended Notice of

Appeal filed on the 18th October, 2017, is predicated on

nine (9) grounds.

In the 3rd Amended Appellants' brief filed on the same date

with the Amended Notice of Appeal, seven (7) issues are set

out for determination in the appeal. They are as follows: -

“I. Whether there was any conflict in evidence of

traditional history given by both sides and if so,

whether the lower Court identified and properly used

evidence of recent event to resolve such apparent

conflicts in favour of the plaintiffs?

II. Whether in spite of the lack of any evidence to

controvert the plaintiffs' case to the land in dispute

the Court was right to declare title in favour of the

4th-6th Defendants?

III. Whether the trial Court was right in imposing a

burden of proving consent or approval of any

authority to establish title to land "held under

customary native law of land tenure"?

IV. whether "Exhibit L" was properly admitted and if

so whether it was properly evaluated by the trial

Court?

V. Whether the Court can rely on findings from the

locus in quo that is not documented or supported by

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evidence?

VI. Was the oral evidence of PW3 regarding the

common boundary with the plaintiffs rightly rejected?

VII. Whether the trial Court ought to have awarded

damages against the Plaintiffs?"

A sole issue is said to call for decision in the appeal at

Paragraph 3.1 on page 7 of the 2nd Respondent's brief filed

on the 19th October, 17, in the following terms: -

"Having regard to the state of pleadings and evidence

in support, particularly Plaintiffs/Appellants' terse

evidence, whether the lower Court was not right in

dismissing the Plaintiffs/Appellants' case."

For the 4th-6th Respondents, two (2) issues are said to

arise for determination in the 4th-6th Respondents'

Amended brief filed on the 19th October, 2017. They are: -

"1. Did the Appellants as Plaintiffs at the lower Court

prove their claim for declaration of title to the land in

dispute?

2. Was the trial Court right in granting declaration of

t i t le to the land in dispute to the 4th-6th

Respondents?"

Although the 1st Respondent was shown to have been duly

served with all the relevant processes of the appeal;

particularly the briefs of argument filed by the other

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parties to the appeal named above, there was no record, at

the oral hearing of the appeal, that he fi led his

Respondent's brief or any other process in the appeal.

Looking calmly at the issues raised by the Appellants, the

questions therein can conveniently, fully and effectively be

answered and determined by the determination of the issue

whether from the pleadings and evidence before it, the

High Court was right in law to have entered judgement in

favour of the 4th-6th Respondents in respect of the land

claimed by the Appellants, or in dispute. This sole issue

also subsumes the issues raised by the Respondents, and I

intend to use it in the determination of the appeal, on the

authority of, among other cases, Sha v. Kwan (2000) 8

NWLR (670) 685 @ 700; Onochie v. Odogwu (2006) 6

NWLR (975) 65; Chabasaya v. Anwasi (2010) 10

NWLR (1201) 163 @ 181 and Gov. Ekiti State v.

Olubunmo (2017) 3 NWLR (1551) 1 @ 23. In the

determination of the issue, relevant submissions made on

the parties' issues would be considered.

Appellants' Submissions

After reference to the evidence of DW9, DW10 and DW11,

witnesses called by the 4th-6th Respondents and the

evidence

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of PW4 and PW5 as well as Exhibit B for the Appellants, it

is submitted that there was no conflict in the traditional

evidence between the parties as to the first settlement on

"Ijoyi/Abegede" settlement; the land claimed by the

Appellants because the evidence of the 4th-6th

Respondents was on settlement at "Langbasa" which was a

nearby and different settlement from "Ijoyi/Abegede". The

High Court was said to have used and relied on Exhibit L to

resolve a conflict that did not exist in the traditional

evidence of the parties, contrary to the principle that

recent acts as established by evidence be used to resolve

any conflict in traditional evidence. Irolo v. Leka (2002)

14 NWLR (786) 195 @ (239) and Fasanya v. Adekoya

(2000) 15 NWLR (689) (no page provided) were cited

and it is contended that the traditional evidence of a

separate and distinct land is not reliable evidence to

resolve conflict in traditional evidence and support a

judgement, citing Eze v. State (2000) 10 NWLR (679)

(no page provided). The Court is urged to use the

evidence of the Appellants' witnesses on acts of long

possession and ownerships to find for them on authorities

which include

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Ishola v. Abake (1972) 5 SC, 321 @ 329-30; Nwocha v.

Odumelem (1995) 1 NWLR (869) 43 @ 47 and Idehen

v. Olaye (1991) 5 NWLR (191) 344 @ 354. The

Appellants' case was said not to have been controverted by

the evidence of the 4th-6th Respondents and the Court is

urged to discountenance the additional evidence of PW11

for being inadmissible on the ground that he was not sworn

for the evidence contrary to Section 179 of the Evidence

Act. In the alternative, it is contended that the evidence did

not deal with first settlement or founding of Ijoyi; the land

in dispute, but on "Langbasa" and so the High Court erred

in giving title to the land which their evidence did not

support. Onwuchekwa v. Ezogu (unreported decision)

in Appeal No. SC/88/1998 delivered on 27th September,

2002 (not provided) was referred to for the submission.

It is also the case of the Appellants that it was wrong for

the High Court to have held that they failed to prove the

consent of any Chief, King Dosunmu or governor of Lagos

State when there was no burden on them to do so, since

they did not plead title through the patronage of those

people. The Court is urged to so hold.

In addition,

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it is argued for the Appellants that Exhibit 'L', (Intelligence

Report on the Eti-Osa Native Authority Area) was not

relevant to the case and so inadmissible in evidence under

the provisions of Sections 6-12 of the Evidence Act. The

English case of R v. Killbourne (1973) AC, 726 @ 756

was referred to.

In further argument, it is said that High Court wrongly

used unrecorded notes of evidence of the visit to the locus

inquo to reject Exhibit 'A' which was tendered by PW2 who

gave oral evidence on it contrary to the rules laid in

Ikyaawan v. Ajivah (1997) 4 NWLR (499) 36 and

Ipinlaiye II v. Olukotun (1996) 6 NWLR (453) 180.

In addition, the High Court was said to have wrongly

rejected the evidence of Pw3 on boundaries of the land

claimed by the Appellants as decided in a case on the

ground that a copy of the judgement was not in evidence,

relying on Section 131 of the Evidence Act. It is argued that

the Appellants did not seek to give effect or enforce the

judgement in question but to prove the fact that boundaries

exist between common owners and reliance was placed on

Olorunfemi v. Asho (1999) 1 NWLR (585) (no page

provided) on evidence of boundary

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neighbours in an action for declaration of title to land.

Lastly, it is submitted for the Appellants that the High

Court erred in awarding damages when it had found that

there was no proof of the damages claimed by the 4th-6th

Respondents and the Court is urged to set the award aside.

Eseigbe v. Agholor (1993) 9 NWLR (316) 128 was

cited.

2nd Respondent's Submissions

It is submitted that the Appellant did not prove their

traditional title over a continuous and unbroken period of

time to warrant the High Court granting them title because

what they gave evidence on, were recent acts within living

memory which cannot be regarded as proof of tradition by

the authority of Ewo v. Ani (2004) 3 NWLR (861) 611 @

628 and Idundun v. Okumagba (1976) 9-10, 227,

which also set out ways of proving title to land. The

Appellants are said to have failed to discharge the burden

of proof imposed on them by the law which requires that

they succeed on the strength of their case upon the

preponderance of credible and sufficient evidence. Echi V.

Nnamani (2000) 8 NWLR (667) 1 @ 19 and Gankon v.

Ugochukwu Chem. Ind. Ltd (1993) 6 NWLR (297) 55

@ 75-6 were cited for the

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submission.

According to learned Counsel for the 2nd Respondent, the

2nd Respondent pleaded and proved their title by tracing

the title of their ancestors in graphic details, the names of

the successive owners through whom they derived the title.

He then contended that the Appellants' evidence casts a

shadow over the claim of exclusive ownership of the land in

dispute since it shows that Shasore and Arobieke families

are one and have always been treated as such, which

constitutes admission against interest to the benefit of the

2nd Respondent. Anason Farms Ltd v. NAL Merch.

Bank (1994) 3 NWLR (331) 241 @ 252 was referred to

and it is submitted that the law, in Mogaji v. Cadbury

Nig. Ltd (1985) 2 NWLR (7) 393, is that where a plaintiff

and his witnesses give conflicting stories on his root of

title, the root would be treated as unreliable.

It is also the case of the 2nd Respondent that the identity of

the land was not an issue joined by the parties in their

pleadings as the Respondents did not dispute the

description of the land in the Appellants' pleadings, though

different names were given by them. Makanjuola v.

Balogun (1989) 3 NWLR (108) 192

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@ 204 and Ogbu v. Wokoma (2005) 14 NWLR (944)

118 @ 139 were cited and the Court is urged to dismiss

the appeal, in conclusion.

4th-6th Respondent's Submissions

The submissions are to the effect that the Appellants’

pleadings on their root of title to the land in question are in

paragraphs 4-8 of their Amended Statement of Claims and

their evidence did not prove the claims of first settlement

and unbroken succession. It is submitted that the case of

Appellants was that their ancestor, was an exile who settled

at Langbasa and farmed at Ijoyi, but there were no

pleadings and evidence of how he got the land at Ijoyi to

farm thereon and that none of them own any farm at Ijoyi

and are not in possession. Learned Counsel for the 4th-6th

Respondents submitted further that there is a difference

between the grant of land and settlement on land for the

purpose of a claim for declaration of title to land. That a

grant comes from a previous title holder to a subsequent

person while a settlement does not recognize a previous

title holder and that a claimant by grant must establish the

title of his grantor in order to succeed on the authority of

Kode v. Yussuf (2001) 4 NWLR (703) 392. Also, that a

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party who pleads a particular root of title but fails to prove

it, cannot rely on another root of title not pleaded to

support the claim, by the authority of Ude v. Chimbo

(1998) 12 NWLR (577) 169 @ 182. Relying on Akunyili

v. Ejidike (1996) 5 NWLR (449) 381 @ 404, it is

submitted that the claim that their forbearers have

occupied the land before human memory does not avail the

Appellants since their ancestor was an exile and not an

indigene.

Furthermore, it is contended that since the Appellants

pleaded title by grant to their ancestor by Kosoko and they

failed to prove it, the High Court was right to dismiss their

case as they could not thereafter resort to claim for title by

settlement which, in any case, they also failed to prove.

The principle of resolving conflict in traditional evidence

stated in Kojo II v. Bonsie (1957)1 WLR 1223 @ 1226

is said not to be applicable to the case as the Appellants'

evidence contradicted their pleadings as to the ownership

of the land in dispute and so not reliable on the authority of

Igbojimadu v. Ibeabuchi (1998) 1 NWLR (533) 170 @

193 and Obioha v. Duru (1994) 8 NWLR (365) 631 @

650.

The High

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Court was said to be right in resolving the conflict in the

evidence of the parties by the use of observations at the

visit to the locus in quo and also refusal to use evidence of

proceedings which were not placed before it. Carlen Nig.

Ltd v. Univ. of Jos (1994) 1 NWLR (323) 631 and Jiaza

v. Bamgbose (1999) 7 NWLR (610) 182 were referred

to.

Exhibit 'L' is said to be relevant to the case before the High

Court for being record pertaining to the history of Lagos

State.

It is then contended that the 4th-6th Respondents' case as

pleaded in Paragraphs 7-9 of their statement of defence

and counter claim was proved by the evidence of DW8,

DW10 and DW11 that, one Elejigbo, first settled on the land

in dispute at Langbasa, Ijoyi-Nla, Ijoyi-Kekere and Abegede

and that he put Arobieke in possession. In conclusion, the

Court is urged to dismiss the appeal.

In the Appellants' further Amended Reply to the 2nd

Respondent's brief, it is submitted that the Appellants have

pleaded and led evidence to show that Chief Shasore

founded Ijoyi as first settler through PW4 and PW5, and

that the evidence of acts of ownerships and possession was

not to prove traditional

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history but to show how the Appellants' acts of possession

were numerous and positive. It is also said that a party is

entitled to prove title to land by anyone or more of the

established ways or mode of such proof as set out in

Idundun v. Okumagba (supra) and State in Balogun v.

Akanji (2005) 10 NWLR (933) 394 @ 399. The cases

cited by the 2nd Respondents are said not to be apposite to

the facts of the Appellants' case and it is argued that the

Appellants have pleaded and proved their claim to title to

the land in dispute as required by law and the High Court

erred to have granted title to the 4th-6th Respondents.

Most of the other submissions in the Reply are further

arguments of the appeal or reactions to the point canvassed

in the 2nd Respondent’s brief, which are not new or fresh

points that require response since the record of the

pleadings and evidence adduced before the High Court are

in the Record of Appeal. As a reminder, under the

provisions of Order 19, Rule 5 (1) of the Court of Appeal

Rules, 2016, the only purpose for which an Appellant's

Reply is to be used is to deal with, answer or respond to all

new points arising from the Respondent's

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brief. A Reply brief is not an avenue for reaction or

response to all or every point canvassed in the

Respondent's brief in answer to the Appellant's brief, or for

the purpose of further arguments of an appeal on issues

already argued in an Appellants' brief either for emphasis

or in addition to the points already canvassed therein

Agala v. Okusin (2010) 10 NWLR (1202) 412; Ojukwu

v. Obasanjo (2004) 7 SC (pt. 1) 117; Mini Lodge Ltd.

v. Ngei (2009) 12 MJSC (pt. 1) 56; Oshoboja v. Amida

(2009) 12 MJSC (pt. 1) 96. Thus, where no new or fresh

points are raised or arise from the Respondent's brief, an

Appellant's Reply becomes unnecessary in an appeal since

it is not meant to be either a repair kit or for improvement

of arguments canvassed on points in the Appellant's brief.

Duzu v. Yunusa (2010) 10 NWLR (1201) 80; Olafisoye

v. FRN (2004) 4 NWLR (864) 580; Ojiogu v. Ojiogu

(2010) 9 NWLR (1198) 1.

The Appellants' Further Amended Reply to the 4th-6th

Respondents' brief, like the Reply to the 2nd Respondent's

brief, contains, substantially, reactions or response to all

the points canvassed in the 4th-6th Respondents brief and

further arguments of the appeal,

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saying, essentially, that they are either erroneous or

misconceived. It is maintained that the Appellants have

discharged the duty to plead and prove their claim to the

title to the land in dispute through traditional evidence of

how it was founded, and the intervening owners through

whom they derived the title.

The proper foundation for the determination of the issue

would be a look at and consideration of the respective

cases presented by the parties before the High Court, in

both pleadings and evidence.

Primarily, the case of the Appellants before the High Court,

as per their pleadings, is as contained in paragraphs 3, 4, 5,

7 and 8 of the Amended statement of Claims dated 6th,

2000. The facts pleaded in the paragraphs, are as follows: -

"3. The Plaintiffs avers that they are the true

members of the SASORE-ABAPO CHIEFTAINCY

FAMILY, the only true and bona fide original owners

of the 209 hectares (516,468 acres) of land lying at

Ijoyi in the present day Eti-Osa Local Government

Area of Lagos State (‘the landed property in Dispute').

4. The members of SASORE-ABAPO CHIEFTAINCY

FAMILY through their forbearers have held and

occupied the

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landed subject matter of this suit in Yoruba

customary occupation since before living memory.

5. The Plaintiffs aver that one CHIEF SASORE-ABAPO

of Lagos at the time of the 19th Century lived and

farmed at Ijoyi in present day Lagos State and

maintained a Chieftaincy house known as an 'Iga'

[Palace] at Langbasa Village, Eti-Osa Local

Government Area of Nigeria.

7. The Plaintiffs aver that one Chief SASORE-ABAPO a

forbearer of the plaintiff family an Abagbon Chief of

Lagos lived in exile in Langbasa and sustained himself

with the crop of farm at Ijoyi the landed property in

dispute due to his service to OBA KOSOKO of Lagos

in the period 1841-1851 and through the several wars

and migrations that followed the said family has since

held the Landed Property in customary occupation.

8. The Plaintiffs’ family is a Chieftaincy family of

Lagos who held the land in dispute as “stool land”

through the office and persons of the SASORE of

Lagos from the time of the first settlement of Chief

SASORE-ABAPO of Lagos during the wars between

Oba Akitoye and Oba Kosoko in and around

1841-1851, to each successding holder of the office of

Chief

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Sasore of Lagos as the custodian of the family

property and treasures to the present Chief Sasore of

Lagos, the 3rd Plaintiff herein."

In brief, the case presented in these avernments is that the

Appellants' forebearer; Chief Sasore-Abapo had "lived in

exile in "Langbasa" and also "lived and farmed at Ijoyi and

maintained a Chieftaincy house known as an "Igu" (Palace)

at Langbasa village", in the 19th Century, "due to his

service to OBA KOSOKO of Lagos in the period 1841-1851

and through the several wars and migrations that

followed."

Apparently, the land claimed by the Appellants, from the

avernments in paragraphs 3 and 7 above, is situate and

lying at Ijoyi, where their forbearer lived and farmed.

It can easily be observed that the claim is essentially based

on traditional history of first settlement by the Appellants'

ancestor or forbearer; Chief Shasore-Abapo and it is for

title to the land in question,

The law is firmly settled over the years now, that in

pleading traditional history in a claim for declaration of

title to land, the plaintiff or claimant has a duty and so is

expected to narrate the genealogical tree from the original

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owner, the ancestor in generations appurtenant to him,

down to the plaintiff/claimant. Put another way, the plaintiff

is required to plead who founded the land he claims, the

manner in which it was founded, and the circumstances

leading to it; e.g., first settlement or acquisition by

conquest, and the successive Persons to whom the land

devolved from the founder, through an unbroken chain in

such a way that there is no gap which is not or cannot be

explained. See Akunyili v. Ejidike (supra); Nneji v.

Chukwu (1996) 10 NWLR (478) 265; Anabaronye v.

Nwakaihe (1997) 9 NWLR (482) 374; Igbojimadu v.

Ibeabuchi (1998) 1 NWLR (533) 179; Dike v.

Okoloedo (1999) 10 NWLR (623) 359; Odi v. Iyala

(2004) 8 NWLR (875) 283; Irawo v. Adedokun (2005)

1 NWLR (906) 199; Alikor v. Ogwo (2010) 5 NWLR

(1187) 281.

The law is also very well known that title to a piece or

parcel of land can be proved by anyone of five ways,

including traditional history evidence. The ways are: -

(a) traditional history evidence - Ezenwa v. Agu (2004) 3

NWLR (861) 431 @ 456; Ezeakabekwe v. Emenike

(1998) 62 LRCN, 4855;

(b) documents of title - Nnabuife v. Nwigwe (2001) 9

NWLR (719) 710;

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Alli v. Alesinloye (2000) 6 NWLR (660) 117; Adeniran

v. Alao (1992) 2 NWLR (223) 350;

(c) by various acts of ownership, numerous and positive and

extending over a length of time as to warrant the inference

of Ownership-Okafor v. Idigo (1984) 1 SCNLR, 481;

Ebevuhe v. Ukpakara (1996) 7 NWLR (460) 254.

(d) by acts of long possession and enjoyment of the land

under Section 35 of the Evidence Act, 2011 (same

provisions as in previous Acts). See Agbara v. Amara

(1995) 7 NWLR (410) 712 @ 734; Atanda v. Ajani

(1989) 3 NWLR (111) 511.

(e) by proof of possession of adjacent land in circumstances

which render it probable that the owner of such land would

in addition, be the owner of the land in dispute. Piaro v.

Tenalo (1976) 12 SC, 31; Nwosu v. Udeala (1990) 1

NWLR (125) 188; Oladipupo v. Olaniyan (2000) 1

NWLR (624) 556.

In addition, a claimant for declaration of the title to land is

to succeed in such a claim, on the merit and strength of his

own case and not on the weakness of the defendant's

defence or case, but can rely on defendant's evidence

which support his own case, Clay Ind. Nig. Ltd v. Aina

(1997) 8 NWLR (516) 208; Dike v. Okoloedo

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(supra); Oyedeji v. Oyeyemi (2008) 6 NWLR (1244)

542.

The law is also that a party who pleads a root of title by any

of the established ways, but failed to prove same, cannot

turn round at the trial to seek or claim to rely on another

root not pleaded by him Nnadozie v. Mbagwu (2008) 3

NWLR (1074) 363; Owhonda v. Ekpechi (2003) 17

NWLR (849) 326; Bello v. Sanda (2012) 1 NWLR

(1281) 219.

Since the initial burden of proof of the claim by the

Appellants was on them, as Plaintiffs/Claimants before the

High Court, and the claim is predicated on traditional

history of first settlement by their forbearer, the initial

question that arises is whether they satisfied the basic

requirement of pleading, in addition to name of the first

settler/founder, how the first settlement was made and the

devolution of the land in dispute, through an unbroken

chain of succession, from the founder to the Plaintiffs.

The pleadings in paragraphs 5, 7 and 8 of the Appellants'

Amended Statement of Claim, set out earlier, are to the

effect that their forbearer, first lived and farmed at Ijoyi

and maintained an "Iga" at Langbasa Village and then,

second; he "lived in exile in Langbasa and

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sustained himself with crop of farm at Ijoyi the landed

property in dispute."

The aggregate of the facts in the paragraphs do not

positively assert that the Appellants' forbearer; Chief

Shasore-Abako, was the first settler at or that he founded

Ijoyi where he lived and farmed in the 19th Century. As can

easily be observed, in paragraph 7, Chief Shasore-Abapo

was said to have "lived in exile in Langbasa and sustained

himself with the crop of farm at Ijoyi, the landed property

in dispute, due to his service to OBA KOSOKO of Lagos in

the period 1841-1851." Neither of the avernments in the

two (2) paragraphs (5 and 7) of the Appellants' pleadings

contain the fact of first settlement by Chief Shasore-Abapo,

at Ijoyi, where the land claimed by the Appellants. is

situate, admittedly. The fact of living and farming at Ijoyi

by Chief Shasore-Abako pleaded in the avernments is not

the same and falls far short of and does not constitute a

positive assertion that he founded Ijoyi or was the first

settler by deforestation. The avernment in paragraph 3 to

the effect that the Appellants are "the only true and bona

fide original owners of... (the landed property in

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dispute)" does not aid and avail them on how they became

the only true and original owners without the fact of how

they came about original ownership. In the circumstances,

the Appellants did not satisfy the basic requirement of

pleading the facts of first settlement by their forbearer on

the land in dispute, upon which their claims are predicated.

First settlement presupposes deforestation of virgin land

where no other persons had been before and which is

under no control or authority of any other persons or

community. However, first settlement would include

deforestation of a virgin land and conquest of the previous

persons or community on a land, and then settling on the

land. Since under customary and traditional law, conquest

is one of the modes or ways of acquiring ownership/title to

land, satisfactory proof by traditional evidence of such

conquest, would ground ownership/title to the land in

question. Ajiboye v. Ishola (2006) 13 NWLR (998) 628;

Mogaji v. Cadbury Nig. Ltd.

In the absence of clear and positive avernments of fact of

first settlement by their forbearer or that he in fact founded

or deforested the land in dispute as a virgin land,

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the foundation of the claims by the Appellants to be the

only true and bona fide original owners of the land, is

absent from their pleadings. Where a plaintiff predicates

his claim for a declaration of title on traditional history, it

would not be sufficient for him to merely plead or barely

assert that he and his predecessors in title had owned and

possessed the land in dispute since a particular period or

from time beyond memory. The issue of original ownership

of land by traditional evidence is one of hard historical facts

and a claimant has a duty to plead specific and necessary

facts and materials to sustain the title based thereon which

must be proved as required by the law. Title to land based

or predicated on traditional history evidence cannot be

established or proved by bare assertions or general

sweeping statements of the claimant. See Olokunlade v.

Samuel (2011) 17 NWLR (1276) 290. The basis of the

claim by the Appellants' on the ground of first settlement

on the land in dispute by their forbearer, relying on fact of

traditional history therefore fails in these circumstances.

It is correct, as shown in the Appellants' brief that PW4; the

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Shasore of Lagos and head of the Shasore Chieftaincy

Family gave evidence at page 270 of the Record of Appeal

to the effect that:

"SAHASORE ABAKO was one of the chiefs who went

on exile with Kosoko to Epe. On his way to Lagos, he

made a detour to Badore in ETTI-OSA Local

Government Chief SHASORE and few other chiefs

were with him. As Kosoko settled in BADORE,

SHASORE settled in Langbasa. It was in the process

of this settling at Langbasa that he discover - IJOYI -

which was his own family land at that time. The

House we built at Langbasa is now part of the

historical ... Lagos State Government."

The clear import of this piece of evidence is that it was

"Chief SHASORE ABARO" who discovered and was the first

settler at Ijoyi which was his own family land at that time.

Under cross examination by the 2nd and 3rd Defendants,

PW4 maintained at Page 272 of the Record of Appeal, that:-

"My family lived and farmed IJOYI - the site of the

present suit."

However, the above evidence is not supported by and did

not go to support any pleadings by the Appellants that in

fact and deed, Chief Shasore Abako (or Abaro); their

forebearer, discovered, was the

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first settler at or founded Ijoyi. The law is trite that

evidence not supported by pleadings of a party goes to no

issue and of no probative value or worth in a case even if

unchallenged and uncontroverted. Adimora v. Ajufo

(1988) 6 SCNJ, 18; Awoyegbe v. Ogbeide (1988) 1

NWLR (73) 695; Adejumo v. Ayantegbe (1989) 3

NWLR (110) 417; Egbunike v. ACB Ltd (1995) 2

NWLR (375) 34; SPDCN v. Ambah (1999) 2 SCNJ, 152.

The evidence of Lateef Adesina Dosunmu, PW5, at page

275 of the Record of Appeal that Shasore Abako settled at

Ijoyi which is about 2 or 3 miles from Langbasa, along

Badore Road, when Kosoko was driven out of Lagos, goes

to the Appellants' pleadings in paragraphs 5 and 7 of the

Amended statement of Claim of mere settlement on the

land in dispute by Chief Shasore-Abako, but not as a

founder, first settler or a Person who discovered it. As

pointed out earlier, by the pleading in paragraph 7, Chief

Shasore-Abako had lived in exile in Langbasa and sustained

himself with crops from farm at Ijoyi, the land in dispute,

due to his service to Oba Kosoko of Lagos in the period

1841-1851.

The claims by the Appellants, of being in possession of and

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exercising rights of ownership of the land in dispute since

the settlement of Chief Shasore-Abako, are clearly

predicated; completely and entirely, on their claim of title

and ownership by first settlement, discovery or founding

one of the modes or ways of acquiring title to land under

customary law. The claim that the Appellants are the true

and bona fide original owners of the land is based on the

claim of first settlement, discovery or founding by Chief

Shasore-Abako. Since their claim to possession of and

exercise of rights of ownership of the land in dispute are

predicated on the failed claim of first settlement, the

Appellants cannot turn round to rely on the alleged

possession or exercise of the acts of ownership to claim

title to the same piece of land as there would be no

foundation for such acts of possession and ownership.

In the case of Fasoro v. Beyioku (1988) 2 NWLR (1976)

263, the Supreme Court has stated the law that -

"One cannot relay talk of facts of ownership without

first establishing that ownership. Where a party's root

of title is pleaded as say - a grant, or a sale or

conquest, etc, that root has to be established first,

and

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any consequential acts following therefrom can

properly qualify as acts of ownership. In other words,

acts of ownership are done because of, and in

Pursuance to the ownership. Ownership forms the

quo warranto of these acts as it gives legality to acts

which would have otherwise been acts of trespass."

The law, as stated earlier, is that a claimant who pleads

traditional history as the root of his title to a piece of land,

but fails to prove the root by that means, cannot turn round

to rely on acts of ownership and possession to prove his

title to the land in question. Oyadare v. Keji (2005) 7

NWLR (925) 571; Orunengimo v. Egebe (2007) 15

NWLR (1058) 630; Alikor v. Ogwo (2010) 5 NWLR

(1187) 281; Anukam v. Anukam (2008) 5 NWLR

(1081) 455. The trial Court was on the firm terrain of the

law when it stated at page 17 of its judgement (Page 606 of

the Record of Appeal) that: -

"Without doubt where a party pleads and relies on a

particular mode of acquisition of his root of title, he

is under a duty to prove such mode of acquisition to

the satisfaction of the trial Court before his claim of

title can succeed. Where, however the radical title is

not proved,

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it is long settled that it is not permissible to

substitute a pleaded particular root of title that has

failed with other matters such as acts of possession,

numerous and positive to warrant the inferences of

the ownership not pleaded as root of title. See: -

1. Chief Odofin vs. Isaac Ayo-Ola (1984) 11 S.C. 72 at

116-117;

2. Fasoro & Anor. vs. Beyioku & ors. (1988) 2 NWLR

(Pt. 76) 263;

3. Mogaji & Ors. vs. Cadbury (Nig.) Ltd. (1985) 2

NWLR (Pt.7) 393 at 429."

In law, there is a distinction between proof of title to land

by traditional evidence and proof by acts of possession and

ownership. As a general rule, a claimant who pleads acts of

possession and ownership as his root of title to a piece of

land, he relies on the presumption of the law in Section 35

of the Evidence Act 2011 (Section 46 of the 1990 Act) that

possession is presumed to be evidence of ownership of the

land and anyone who alleges that a party in possession is

not the owner, bears the legal burden of proving the

allegation.

The presumption of the law on possession would not arise

and/or avail a claimant who pleads and relies on a specific

root of title to

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the land since the claim is based on a known root of title

which must be proved satisfactorily or else the claim would

fail,Balogun v. Akanji (2005) 10 NWLR (933) 394;

Agbetu v. Akinboyo (2012) LPELR-9749 (CA). In claims

based on traditional history as the root of title, acts of

possession and ownership by the claimant may only be

resorted to where there are two (2) conflicting versions of

the traditional history evidence none of which is more

probable, sufficient and conclusive to prove the title

claimed by either of the parties. Balogun v. Akanji

(supra); Oyadare v. Keji (supra); Odofin v. Ayo-Ola

(1984) 11, SC, 72; Kojo II v. Bonsie (57) 1 WLR, 1223.

In any case, conflict in traditional history evidence may

only arise if it is pleaded and evidence given in respect of

an identified piece of land about which there is no doubt or

dispute between the parties. Put another way conflict in

traditional history evidence by the parties can only arise if

evidence given by both parties is in respect of the same

piece of land irrespective of the names given or ascribed to

it by the parties.

As seen earlier, the pleadings by the Appellants, as

Claimants, were

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on the piece of land situate at Ijoyi, said to be the land in

dispute between the parties before the trial Court. See

paragraphs 3, 5 and 7 of the Amended Statement of Claim.

In the further Further Amended Statement of Defence and

Counter Claim dated 3rd February, 1998, the 2nd and 3rd

Defendants claimed in paragraph 9, that the land in dispute

was part of originally virgin forest which was first settled

on by their forebearer one Arobieke about four hundred

(400) years or thereabout. That it is called Langbasa and

that the descendants of Arobieke have been in physical

possession and exercising acts of ownership over the land,

since then. It is also their case that Appellants' family is not

known in and does not own or possess any piece of land at

Langbasa.

On their part, the 4th-6th Defendants (4th-6th

Respondents) in the 3rd Amended Statement of Defence

and Counter Claim dated 16th May, 2000, in paragraphs

7-9, 20 and 28, claimed that their ancestor; Elejigbo was

the first person to settle at Langbasa and all the

surrounding villages of Ijoyi-Nla, Ijoyi-kekere and Abegede

before 1841, which has no connection with either Lagos or

Oba Kosoko and that

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he came from Idowa; a town very close to Ijebu-Ode. That

his descendants have been farming and exercising acts of

ownership of the land in dispute since then, and that the

Appellants' family does not own or possess any piece of

land at Langbasa or are even known there.

The Appellants and the two (2) sets of Defendants

(Respondents) each gave evidence in respect of the claims

by them on the land said to be in dispute.

The Court is urged at page 6 of the Appellants' brief to

discountenance arguments that Langbasa and Ijoyi are one

and the same property or that settlement at Langbasa

constitutes evidence of ownership of Ijoyi because: -

(a) it was not pleaded and no evidence was adduced, and

(b) it does not agree with other evidence.

In paragraphs 7 and 8 of the 3rd Amended Statement of

Defence and Counter Claim, the 4th-6th Respondents

pleaded that their ancestor was the first person to settle at

Langbasa and the surrounding villages of Ijoyi-Nla, Ijoyi-

Kekere and Abeged Villages. The evidence of DW10, at

page 348 of the Record of Appeal, is that Elejigbo; the

4th-6th Respondents' ancestor, owned Langbasa, Ijoyin-Nla

and Kekere and

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Abegede. The evidence of DW11 is to the same effect.

The case put forward by the 4th-6th Respondents before

the trial Court in both pleadings and evidence, was that for

the purposes of first settlement and ownership, Langbasa

and Ijoyi Nla and Kekere as well as Abegede Villages were

owned by their ancestor. The case by the 4th-6th

Respondents on the first settlement and ownership of

Langbasa and Ijoyi-Nla and Kekere as well as Abegede was

not discredited in any manner by the Appellants under

cross-examination or any other way. The Appellants did not

also plead or give any credible evidence on the traditional

history that formed the foundation of the 4th-6th

Respondents' claim that their ancestor was the first settler

and so owned Langbasa and the surrounding villages of

Ijoyi-Nla and Kekere and Abegede before the alleged

settlement and discovery by the Appellants' ancestor.

The 4th-6th Respondents have pleaded who found the land

they claimed, how it was founded and the devolution from

the founder, in chorological and unbroken chain, to the

present descendants who continue to exercise acts of

ownership and possession. The evidence given by the

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4th-6th Respondents was in line with and supports the

pleadings and not effectively challenged or controverted.

The evidence is also not in conflict with that given by the

Appellants as far as the claim of ownership and title to the

land based on the traditional history of first settlement is

concerned.

There was therefore no conflict in the traditional evidence

given by the parties; particularly the Appellants and the

4th-6th Respondents on their respective claims of first

settlement and ownership in respect of the land in dispute

since the Appellants' evidence was not based or supported

by any specific pleading of first settlement on the land by

their forebearer, the root of title upon which their case was

entirely predicated. There was, in the circumstances, no

need to have resort to the principle in Kojo II v. Bonsie

(supra) in order to determine who, between the Appellants

and the 4th-6th Respondents, proved their claim for title to

the land as required by the law and so entitled to the

declarations sought.

I have not seen any part of the trial Court's judgement

where it made a finding that the Appellants had adduced

cogent evidence in support

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of their claim for title to the land in dispute which is in

conflict with that of the 4th-6th Respondents and none of

which was sufficient to prove the title claimed. Rather, the

finding by the trial Court was that the Appellants had failed

to prove the traditional history they relied on to claim title

to the land in dispute. At pages 13-14 of the judgement,

which appears at page 602 of the Record of Appeal, the

trial Court had found and held that: -

"In this case, there is total absence of evidence from

the Plaintiffs that their ancestor Chief Sasore was

allowed to continue his possession of the land in

dispute after renunciation in 1852 by consent of the

new King Dosunmu and the Governor of Lagos. So in

this case, the Plaintiffs cannot be said to have proved

the custom they relied on. See:-

1. Giwa vs. Erinmilokun (1961) 1 SCNLR 379 at3...;

2. Olabanji vs. Omokewu (1992) 6 NWLR (Pt. 250) 671

at 687;

3. Okene vs. Orianwo (1998) 9 NWLR (Pt. 566) 408 at

4.

4. Uzegaball vs. Ekpang (1962) 1 SCNR 423 at 426.

See also Section 14 of the Evidence Act Cap 112, Laws

of the Federation of Nigeria, 1990 (supra).

I have already dealt with

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the effect of the Lands Instruments Registration Law

in my review of the main case, suffice to say that

under the Lands Instrument Registration Law, the

registration of a document like Exhibit "K" shall not

cure any defect in it or confer upon it any effect or

validity which it would not otherwise have had.

It does not confer any title or legal interest on the

Donor, and Donees mentioned therein. See:-

1. A.C.B. Plc vs. Emostrade Ltd. (2002) 8 NWLR (Pt.

770) 501;

2. Umogbai vs. Aiyemhoba (2002) 8 NWLR (Pt.770)

687.

I have found evidence in both Exhibits "B" and "K", as

inadequate to support the case of the Plaintiffs and

1st and 2nd Defendants in this case. See: -

1. Iriri vs. Erhurhobara (1991) 2 NWLR (Pt.173 252;

2. Dike vs. Okoloedo (1999) 10 NWLR (Pt.623) 359;

3. Ekpo vs. Ita (1932) 11 NLR 68."

Briefly put, the above decision by the trial Court is that the

Appellants, did not prove the traditional history upon which

they relied for the claim for title to the land they claim. The

trial Court did not say that there was conflict in the

evidence of the parties which was probable, but insufficient

to prove the title

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claimed by each of them and did not resort to recent acts of

possession and ownership to determine the Appellants'

case.

It has been argued for the Appellants that the trial Court

had imposed a burden of proving consent or approval of

any authority to establish their title to the land under

customary land tenure, and the validity of Exhibit 'B'; the

declaration of interest dated 15th March, 1977 registered

as No. 95, page 95 in Vol. 1614 at Land Registry, Lagos

State.

All that needs be said on the argument is that the

Appellants put Exhibit 'B' in evidence to support their claim

of first settlement as the root of the title to the land, by

traditional history under customary law. Since the trial

Court found that the Appellants did not prove the root of

title relied on by them, then Exhibit 'B' would lack the

probative worth to avail their claim for title, as rightly held

by it above.

The admission of Exhibit "L"; which was an Intelligence

Report on the Eti-Osa Native Authority Area of the Colony,

was questioned by the Appellants on the ground that it was

not relevant since it was in respect of Langbasa and Ijoyi,

where the land in dispute is

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situate.

It is argued that the trial Court erred to hold that the

Exhibit is admissible on ground of relevancy since the

settlement at Langbasa was not an issue joined by the

parties in the case before it.

The argument by the Appellants has effectively been taken

care of by the earlier finding that by the unchallenged

evidence of 4th-6th Respondents, Langbasa, Ijoyi-Nla and

Ijoyi-Kekere and Abegede Villages were founded by their

ancestor who owned them. The Appellants did not dispute

that the land they claimed is not situate at Ijoyi-Nla or/and

Ijoyi-Kekere, even though they did not call their own Ijoyi,

either Nla or Kekere.

In the above circumstances, the trial Court is right that

Exhibit "L" which dealt with the history of the villages

including Langbasa, Ijoyi-Nla and Ijoyi-kekere was relevant

to the issues canvassed by the parties in the case before it,

The Exhibit 'L' went directly to the issues raised in the case

of the 4th-6th Respondents and so relevant for

determination of the case even if the Appellants did not join

issues with the 4th-6th Respondents, on Langbasa. As

rightly stated by the trial Court, facts which, though not

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in issue, are so connected with a fact in issue as to form

part of a transaction, are relevant, whether they occurred

at the same time and place, or otherwise. Such facts are

admissible in evidence in proof or disproof of facts in issue

in judicial proceedings. Fawehinmi v. NBA (No.2) (1989)

2 NWLR (105) 558; B.O.N. v. Saleh (1999) 9 NWLR

(618) 331; Anozie v. Obichere (2006) 3 NWLR (981)

145; Odon v. Barigha-Amange (No.2) (2010) 12 NWLR

(1207) 13.

In addition, as a certified copy of a public document,

Exhibit 'L' is also admissible in evidence under the

provisions of Section 97(2) of the 1990 Evidence Act. For

being relevant, admissible under the law and admitted in

evidence, the trial Court had the duty to evaluate it in the

determination of the issues in the case before it and in the

absence of an effective challenge to its credibility, ascribe

probative value to it. Adebayo v. Adusei (2004) 4 NWLR

(862) 44; Saidu v. Abubakar (2008) 12 NWLR (1100)

201.

The Appellants have also complained that the trial Court

used its observation at the visit to the locus in quo to reject

Exhibit 'A' as credible evidence.

It may be remembered that Exhibit 'A'

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was the registration of interest in the land name therein

which was put in evidence by the Appellants in support of

the claim for title on the basis of first settlement, as the

root of such title. As rightly held by the trial Court, in the

absence of satisfactory proof of the root of title relied on by

traditional history, Exhibit 'A' had no probative value to the

case of the Appellants. In any case, even without the

reference by the trial Court to the observation on the

inscription on the House at the locus in quo, which was

factual, Exhibit 'A' did not go to support the root of

Appellants' claim for title, without evidence of proof of the

root. The trial Court did not reject Exhibit 'A' solely on the

ground of the reference to the observation at the visit to

the locus in quo, but primarily on the ground of failure by

the Appellants to produce satisfactory traditional history

evidence to prove the root of the title claimed, which the

Exhibit was supposed to be an official recognition of.

It is also the complaint of the Appellants that the trial Court

rejected the evidence of PW3 that her family had common

boundary or were boundary neighbours of the

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Appellants' forebearer. The Appellants would appear to

have "taken their eyes off the ball" in the argument of the

issue.

The fulcrum of the Appellants' case was the claim for title

based on first settlement, which the trial Court rightly

found not to have been proved by them and so whether the

Appellants' forebearer had settled on the land and even had

boundary neighbours, did not go to the proof of the root of

the title claimed by them. The evidence of PW3 on the

boundary neighbourhood between her family and

Appellants' forebearer was neither here nor there in the

absence of evidence in proof of the root of title claimed. All

the authorities cited on the issue in the Appellants' brief

are not apposite or applicable to the Appellants' case on

ground of their failure to prove the root of the title claimed

by them. The Appellants' case did not fail and was not

dismissed by the trial Court on the basis of lack of evidence

on possession or settlement on the land they claimed, but

on, once more, lack of proof of the root of the title they

claimed. Pleadings on "boundary men communities in the

Appellants' defence to the 4th-6th Respondents' counter-

claim was

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of no use to their case, even if not challenged by the

Respondents in a reply. The need to file an answer or reply

to a defence to a counter-claim would only arise if the

issue(s) raised therein was relevant in the determination of

the counter-claimants' case, in which case the presumption

of admission in the absence of such answer or reply, may

be invoked.

The Appellants also raised the issue of award of damages

against them by the trial Court on the ground that no

evidence was found to warrant the award. It is contended

that it was wrong of the trial Court to award damages in

the case and on the authority of Eseigbe v. Agholor

(1993) 9 NWLR (316) 128, it is submitted that all that

the Appellants need do is to show that the trial Court acted

wrongly on the face of judgement for the award to be

reversed by the Court. Chime v. Ude (1993) 3 NWLR

(279) 78 on the law that claim for damages for trespass is

based on exclusive possession, was referred to and it is said

that the trial Court did not make a finding on the 4th-6th

Respondents' exclusive possession of the land in dispute.

The Court is urged to set aside the award of damages in

favour of the 4th-6th

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Respondents.

At page 31 of its judgement, (page 620 of the Record of

Appeal set out earlier) the trial Court had found that the

4th-6th Respondent established their root of title to the

land claimed and so proved better title and interest over it

to be entitled to the declaration sought by them in the case.

However, at page 32 of the judgement (page 621 of the

Record of Appeal) after granting the claims by the 4th-6th

Respondents, the trial Court in dealing with the damages

claimed by them found and held that-

"In the present case, pleadings and evidence suggest

special damages, whereas the relief sought is

curiously, for general and special damages. Having

regard to the nature and structure of the case

presented by the Claimants, it is founded on special

damages. I hold the view that there is no evidence

upon which 4th and 6th Defendants could have been

awarded the damages they claimed either wholly or in

part. They simply failed to make out a case for

damages claimed. See: -

1. Shell BP Ltd. vs. Cole (1978) 3 S. C. 183;

2. Badmus vs. Abegunde (1999) 11 NWLR (Pt. 623)

493 at 504, because the amount in the form of special

damages cannot

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be awarded as general damages wholly or partially. It

would not be a matter of award of general damages

arising simply from the fact of trespass."

But in what appears to be a flip-flop or summersault and for

no apparent reason, the trial Court stated that: -

"But in this case, I award a sum of N25, 000.00 as

damages as compensation to the 4th-6th Defendants."

It can easily be observed that the earlier decision by the

trial Court on the damages claimed by the 4th-6th

Respondents was that they failed to make out a case for

damages claimed and that it would not be a matter of

award of general damages arising simply from the fact of

trespass. With that decision, that Court had finally

determined the issue whether the 4th-6th Respondents

were entitled to any award of the damages claimed by

them, either as special damages or arising from the fact of

trespass. Ordinarily, generally damages may arise and be

awarded where there was proof of the tort of trespass by a

party against the exclusive possession of a piece of land by

another party or a party who proves a better a title.

Igbinovia v. Okomu Oil Palm Plc. (2002) 17 NWLR

(796) 386; SPDCN Ltd.

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v. Ekwems (2009) 4 NWLR (1131) 229.

In the Appellants' case, the trial Court has ruled out the

entitlement of the 4th-6th Respondents' to the damages

they claimed either as special or general damages for

trespass. In the circumstances, there was no basis for a

later-reversal of the decision to make an award of the

damages the 4th-6th Respondents were found not to be

entitled to. The law generally, is still that an appellate

Court would not ordinarily interfere with the award of

damages made by a trial Court and can only do so in

established and recognized circumstances or situations.

Kaydee Ventures Ltd v. Min, FCT (2010) 7 NWLR

(1192) 171; Ajagbe v. Idowu (2011) 17 NWLR (1276)

422; Ero v. Tinubu (2012) 8 NWLR (1301) 104. One of

such situations is where the award was made in disregard

of the fact and evidence in a case as well as the relevant

principles of law. In this regard, the trial Court could

proceed to award damages which it had found on the facts

and evidence before it, were claimed or proved. The

damages awarded was as or for compensation, which the

4th-6th Respondents neither claimed nor proved. A Court

not being a charitable institution is

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confined to the cases presented and reliefs claimed by the

parties and cannot award a party a relief not claimed,

except it may be a consequential relief, or grant more than

was sought or prayed for by a party. Mustapha v. Bulama

(1999) 3 NWLR (595) 376; Ajao v. Ademola (2005) 3

NWLR (913) 636. The Court has the duty to interfere and

set aside the award by the trial Court in the circumstances

of the appeal.

I find merit in the arguments of the Appellants on the issue

of award of N25, 000.00 damages in favour of the 4th-6th

Respondents.

In the final result, having resolved the principal issue that

the Appellants failed to prove the root of title relied on by

them before the trial Court, and that the 4th-6th

Respondents proved their case, the appeal, in substantial

part, fails for lacking in merit. The judgement of the trial

Court in favour of the 4th-6th Respondents is accordingly

affirmed. The award of damages in favour of the 4th-6th

Respondents for being unsupportable in law, is hereby set

aside and the appeal succeeds, in that part, of the

judgement by the trial Court.

Parties to bear their respective costs of prosecuting the

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appeal.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded

the opportunity of reading the judgment just delivered by

my learned brother MOHAMMED LAWAL GARBA, J.C.A.

From the facts of the case, the 4th - 5th Respondents

proved a better title to the land on the preponderance of

evidence and I have every reason to find as such. Like in all

civil matters, parties must succeed on the strength of their

case which will be decided on the preponderance of

evidence or on the balance of probabilities, see Section 134

of the Evidence Act, 2011. See also OLAIFA & ORS v.

DAVID TANIMOMO & ORS (2017) LPELR -

43252(CA). It would therefore be in the interest of justice

to affirm the decision of the lower Court granting title to

the 4th - 6th Respondents.

The appeal is partially allowed by me. I abide by the

consequential orders made in the lead judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I

have read carefully the draft copy of the judgment just

delivered by my Learned Brother, Mohammed Lawal

Garba, JCA, and I find that the judgment covered the field

exhaustively, except to add that having

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pleaded the root of title which is original settler in

paragraph 3 of the statement claim, it behooves on the

Appellants to back their averments by evidence that "the

only true and bonafide original owners of the disputed

land."

Failure to plead clear and positive avernments of fact of

first settlement by the forbearer or that he ipso facto

founded or deforested the land in dispute as a virgin land is

fatal to the claim of the Appellants. In OBI IZEDIUNO

EZEWANI OBI v. NKADI ONWORDI & ORS. (1986)

LPELR -124 (SC), the Supreme Court, OPUTA JSC at 42 -

43, paras G - B:

"General speaking, all relevant facts are to be pleaded

and if the traditional history of a party to an action is

a relevant fact, then that history ought to be

specifically pleaded failure to so plead will render any

evidence of such facts not pleaded inadmissible. The

Trial Judge is bound to expunge such evidence from

the record when considering the Judgment."

See GEORGE & ORS v. DOMINION FLOUR MILLS

LTD. (1963) 1 ALL NLR 71 at 77; ANIEMEKA

EMEGOKWUE v. JAMES OKADIGBO (1973) 4 SC 113

at 117.

See also DEACON CHIEF ISAAC FATIMEHIN v. CHIEF

LAWANI (2014) LPELR - 23476 (CA),

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where LOKULO - SODIPE, JCA at 39 - 40, paras C - A

restated the position of the law that it is actually from a

party's pleadings that the success or failure of the party's

case flows.

As a result, I too allow the appeal in part. I abide by

consequential orders, in the lead judgment.

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Appearances:

O. Shasore, SAN, with him, Salihu and T. BelgoreFor Appellant(s)

Olabode Olanipekun, with him E.F Adarighifuaand Kabu Abama for the 2nd Respondent.

Prof. A. B. Kasunmu, SAN, with him, M. O. Ojo forthe 4th-6th Respondents.

1st and 3rd Respondents not represented.For Respondent(s)

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