ADEWUNMI & ORS V. ADETAYO & ANOR (2017)

In The Court of Appeal of Nigeria

On Friday, the 19th day of May, 2017

CA/IB/22/2013

Before Their Lordships

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria


Between

1. BAALE RABIU ADEWUNMI
2. TUNJI SOTOMI
3. AKINWANDE SAVAGE
4. TAIWO MAJIYAGBE
5. RABIU ADEWUSI
6. DR BODE SOWUNMI
7. ALH SULAIMAN ADEBAYO
8. MUYIWA ADEWUNMI
9. A.V.M. FEMI OSHIGBO
10. MR. SOGEYINBO
11. DR BABATUNDE LADELE
12. MOSUDI ADEBOYE
13. KUNLE BINUTU
14. KEHINDE ADEBAKIN (Representing themselves and on behalf Of Ofada Community/Village) –Appellants

AND

1. MR. AYOWOLE ADETAYO
2. DAYO SHYLLON

(Trading under the style of SHYLLON PROPERTIES LTD) –Respondents

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CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ogun State, Abeokuta delivered on the 24th day of October, 2011 in Suit No: AB/237/2008. The Appellants as Claimants in the lower Court instituted this suit in a representative capacity for themselves and on behalf of Ofada Community/Village against the Respondents as Defendants jointly and severally claiming as follows:
(a) A DECLARATION that the Plaintiffs are the persons entitled to apply for and obtain a statutory right of occupancy in respect of ALL THAT piece or parcel of land situate, lying and being at OFADALAND.
(b) 10 million naira general damages for trespass committed by the Defendants for going onto the Plaintiffs’ land without the knowledge, consent and authority of the said Plaintiffs.
(c) AN ORDER of perpetual injunction restraining the Defendants by themselves servants, agents and/or privies from committing any further acts of trespass on the land in dispute.

In their Statement of Defence/Counterclaim at pages 27, 36 of the Record and the amended version at pages 105,109 of the Record the Defendants counter-claimed as follows:
(a) A declaration that the 1st Defendant’s Family is the rightful owner of the land at Ofada Land and is entitled to the grant of the statutory right of occupancy on the land in dispute.
(b) Perpetual injunction restraining the Claimants from trespassing on the Late Soremekun Ofada Fletcher’s family land at Ofada Town within jurisdiction of this Court.
(c) Possession of the said land.
(d) N10 million general damages for trespass.

The Claimants filed a Reply/Defence to the Statement of Defence/Counter claim at pages 64 , 67 of the Record. The amended version is at pages 153 , 156 of the Record. The Reply was not filed with the depositions of witnesses resulting in evidence not being led with respect to new facts in the Amended Reply/Defence of the Claimants.
THE FACTS:
The Claimants sued as representatives of Ofada Community/Village in Obafemi Owode Local Government Area of Ogun State. Their case was that the land at Ofada is Communal land and that the Trustee is the 1st Claimant who is the Baale of Ofada. They claimed that their respective diverse families settled in Ofada led by Soremekun and Ofagada. They claimed that Ofada land being communal land could not be disposed of by any individual without the consent of the elders of the Community. They however averred that families had authority over parcels of land allocated to original settlers with the consent of the Baale. They averred that the 1st Defendant relying on a judgment of Owode Customary Court over a fishing pond, Exhibit B/H started claiming that their family owned the whole of Ofada land and went about selling land and molesting occupants of Ofada land, hence the institution of the suit. The Claimants tendered several exhibits in support of their case.
The case of the 1st Defendant who defended the suit as a Principal Member of Late Soremekun Fletcher family is that Ofada land was founded by Late David Soremekun Fletcher aka Ofada who was a returnee slave of Igbein origin. They led evidence of the devolution of title to the land from Soremekun Fletcher through their various ancestors to the 1st Defendant. The 1st Defendant claimed that their averment that their ancestor Soremekun Fletcher was the founder and first settler in Ofada land was corroborated by the averments in the Claimants’ Pleadings.
In proof of their respective cases the parties called two witnesses each and tendered documents in support. Written addresses were filed and duly adopted. In his judgment at pages 261  293, the learned trial judge dismissed the claims of the Claimants based on contradictions in their evidence and failure to prove their root of title. On the Defendants’ counterclaim, his lordship held that the Defendants proved their family’s root of title as the rightful owners of the land at Ofada but that since the 1st Defendant had given evidence that his family allotted land to settlers, judgment could only be entered for them in respect of the un-allotted portions of Ofada land.
Dissatisfied with the judgment, the Claimants appealed against it and the Defendants also cross appealed. The Claimants/Appellants Amended Notice of Appeal is dated 20/02/14 and filed on 21/02/14. It contains 10 grounds of appeal. The Defendants/Respondents /Cross Appellants’ Notice of Cross-Appeal is dated and filed on 25/01/12. It is in the Additional Record

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of Civil Appeal compiled and transmitted on 26/02/14 but deemed properly compiled and transmitted on 06/10/15. The Notice of cross-appeal has five grounds.
The Appellants in their brief of argument settled by O.K. Salawu Esq formulated two issues for determination as follows:
1. Whether the Trial Court was right when it granted the Counter Claim of the Respondents by declaring the Respondent as the person entitled to the right of occupancy over the un-allotted portion of Ofada land and restraining the Appellants from trespassing on the un-allotted portion of land when the exact area of the allotted and un-allotted Ofada land is not shown or described with exactitude and certainty before the Court. Grounds 1, 2, 3, 4, 5, 6, 7 and 9.
2. Whether having regard to the totality of the evidence adduced before the Court and putting the evidence of the Appellant and that of the Respondent on an imaginary scale, the Court below was wrong to have dismissed the Appellants’ Claim and award title to the un-allotted portion of land to the Respondent. Ground 8 and 10.
The Respondents brief of argument was settled by Chief Adekunle Funmilayo. Therein he distilled three issues for determination as follows:
1. WHETHER the trial Court was right in restricting the grant of the Counter Claim to the un-allotted portion of land despite the identity of the land in dispute being clear to the parties and despite findings that the 1st Defendant’s family is the rightful owner of the land at Ofada Town which is known to the parties.
2. WHETHER having regard to the overwhelming lack of credible evidence before the Court, the Court below was not right in dismissing the Appellants’ Claims.
3. WHETHER the Court was right in not wholly granting Counter Claim as claimed.
MAIN APPEAL
The issues formulated by the parties in the main appeal overlap. For ease I shall adopt the issues as formulated by the Appellants but rephrased and re-numbered as follows:
ISSUE 1:
Whether having regard to the totality of the evidence adduced before the Court and putting the evidence of the Appellant and that of the Respondent on an imaginary scale, the Court below was right in dismissing the Appellants’ Claim and in entering judgment for the Respondents. (This issue covers
Respondents issue 2.)
ISSUE 2:
Whether the Trial Court was right when it granted the Counter Claim of the Respondents by declaring the Respondent as the persons entitled to the right of occupancy over the un-allotted portion of Ofada land and restraining the Appellants from trespassing on the un-allotted portion of land when the exact area of the allotted and un-allotted Ofada land is not shown or described with exactitude and certainty before the Court. (This covers the Respondents??? issues 1 & 3)
The two issues will be taken together.
APPELLANTS ARGUMENTS:
On issue 1, Mr. Salawu for the Appellant relying on the cases of MOGAJI V. ODOFIN (1978) 4 SC 91 andFAGBENRO V. MAIDUGURI METRO COUNCIL (2006) NWLR (978) 174 submitted that the standard of proof in a civil case is on the balance of probabilities or preponderance of evidence; and that usually a Trial Court puts on each side of an imaginary scale, the totality of the evidence adduced by the parties and weighs them to determine which side is heavier not by number of witnesses but by the quality or probative value of the testimony of these witnesses. Learned counsel argued that although the Court below made reference to this principle, it failed to take it into account in the cause of evaluation of the evidence led and the documents tendered. He consequently invited us on the authority of ADEBAYO V. ADEWUSI (2004) 4 NWLR (PT 862) 94 to re-evaluate the evidence led in the case. Learned counsel submitted that the Appellants through their witnesses and documents tendered adduced traditional evidence of the origin of Ofada land and how they came in exclusive and uninterrupted possession of their ancestral land from time immemorial. He submitted that in paragraph 2 of the statement of claim at page 1A of the Record of Appeal, the Appellants averred that they are prominent members of diverse families of Ofada land who first migrated and settled on Ofada land.; that at page 65, paragraph 13 of the Reply to the Statement of Defence/Counter-Claim, the Appellants averred that it was the Chief of Igbein i.e. Ogbonis who allocated land to all persons who built houses and cultivated farmlands. Learned counsel referred to Exhibit J the customary arbitration and submitted that parties who submit themselves to Customary

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Arbitration are bound by the arbitral decision. He relied on OHA NDAN V. OHA CHIANUOKWU & ORS. (2006) ALL FWLR (PT 315) 169 AT 180- 183. Counsel submitted that based on Exhibits A and J, the Court below ought to have found as a matter of fact, that just as Fletcher settled on the land through the permission of Igbein township, others also settled on the land and that it is the Igbein township that allocated land to everybody that settled on Ofada land. Counsel submitted that just as the Respondents’ family came and settled in Ofada, so did the Appellants, with every family settling in its own quarters and family land; hence it was easy for individual families in exclusive possession of their lands to maintain their various farmlands and quarters to the exclusion of others. He submitted that there was no proof that anybody was paying rent either in cash or kind to Fletcher. He opined that no single family could claim the entire Ofada Town. Counsel submitted that if the Court below had properly evaluated the various pieces of evidence and placed same on an imaginary scale, the Court would have found that the Claim of the Appellants who had been in possession of the land since the migration of their ancestors from Abeokuta to settle in Ofada to build and farm thereon is more probable than that of the Respondents who claimed to be the owner of the entire Ofada Town, a claim not made by his maternal grandmother from whom he derived his title in Exhibit B/H where she claimed only a fish pond belonging to her family.
Learned counsel submitted that the improper evaluation of evidence led the trial Court into the error of awarding title to an unspecified un-allotted portion of land to the Respondent, a relief they did not even claim in their pleading.
Learned counsel further submitted that Soremekun and Fletcher are two distinct individuals contrary to the claim of the Respondents that the names refer to a single individual who founded Ofada town. Counsel submitted that the claim is inconsistent with the history of Ofada land as narrated in the book titled An outline of the History of Anglican Churches in Egbaland 1842-1992 published by Egba Diocese Anglican Communion, 1992. Counsel submitted that at page 332 of the book on the history of St. David Anglican Church Ofada, Daddy Soremekun was referred to as one of the foundation members which include Sodipe, Oshibo-Olobiyi, Sotomi, Folakan, while Fletcher was referred to as one of the lay readers which include Oyekunle, Sotunde, Philip Sobitan, S.F. Idowo and Sobo Ladele. Counsel submitted that the above book was published in 1992 and that no person or organization has written or published any work denying the truth of the history as published in the book. Counsel also submitted that if the names Soremekun and Fletcher refer to one single individual, how would the Respondents explain the dispute between the family of Soremekun and Fletcher as shown in Exhibit F which dispute was acknowledged in cross-examination by the 1st Respondent. He opined that a proper evaluation of this piece of evidence will show that Ofada town could not have been founded by Soremekun Fletcher as Soremekun and Fletcher are two different persons in the history of Ofada and it would not have been right to say that the non-existent Soremekun Fletcher was the first settler and founder of Ofada town. Counsel relying onIZUOJI V. AJUKWARA (1998) 1 NWLR (PT 533) 255 AT 268 submitted that since the traditional history as narrated by the Respondent is inconsistent with the established history of Ofada, it knocks the bottom off the Respondents’ case. Learned counsel urged us to resolve this issue in favour of the Appellants and to hold that it was wrong of the Trial Court to have dismissed the claim of the Appellants and to have awarded title to the purported un-allotted portions of the land to the Respondent.
On issue 2, Mr. Salawu submitted relying on the cases of GBADAMOSI V. DAIRU (2007) 3 NWLR (PT 1021) 282AND DADA V. DOUNMU (2006) 18 NWLR (PT 1010) 134 that in a case for declaration of title to land, the onus on the Plaintiff is to show the Court clearly the area of the land to which his claim relates so that the land can be identified with certainty. Counsel referred to the case of IORDYE V. IHYAMBE (1993) 3 NWLR (PT 280) 197 AT 207, where Okezie J.C.A. observed:
There is no doubt the onus is on a plaintiff seeking for a decree of declaration of title to show clearly the area to which his claim relates. The onus is a very heavy one. The plaintiff can do this by such oral description of the land that any surveyor acting on such oral evidence can produce a plan of the land he claims.

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Counsel submitted that another and perhaps better way of proving the identity and extent of the land claimed is by filing a plan showing all the features and boundaries of the land. He cited in support OLUSANMI V. OSHASONA(1992) 6 NWLR (PT 245) 22 AT 29. Learned counsel submitted that the Respondent failed to adduce evidence of the exact area of the land he counter claimed for a declaration of title. He further submitted that it was clear from the pleadings and evidence led that at the time of commencement of the suit portions of Ofada Land were in actual peaceable and lawful possession of the Appellants. There was no survey plan and no description of what has been allotted and the un-allotted portions such that anyone reading the description can draw a plan of the allotted and un-allotted land. Learned counsel submitted that the Respondents having divested themselves of the title in the area of land their family purportedly allotted to people or portions sold by the Respondents, they cannot be seeking declaration of title in respect of the entire Ofada land. Relying on IGE V. FARINDE (1994) 7 NWLR (PT 354) 42, SANYAOLU V. COKER (1983) 1 SCNLR 168 counsel submitted that a plaintiff who has sold a piece of land to a purchaser cannot turn around and seek for a declaration of title over the very land he has sold. He submitted that the learned trial Judge erred in granting a declaration of title over an unidentified, unascertained area of land it referred to as un-allotted land. Counsel referred to the case of BURAIMOH V. BANGBOSE (1989) 3 NWLR (PT 109) 352 AT 369 where Uwais J.S.C. (as he then was) observed:
it is well settled that in a claim for declaration of title to land, it will be wrong of a Trial Court to grant declaration if there is doubt as to the identity of the land in dispute.
Counsel also cited the case of GBADAMOSI V. DAIRO (2007) 1 NWLR (PT 1021) 282 where the Supreme Court held that where a party claims declaration of title to land as the Respondent has done here in his Counter Claim and fails to give the exact extent and identity of the land he is claiming, his action should be dismissed. ARIBE V. ASANLU (1980) 5-7 SC 78.
Learned counsel urged us to resolve the issue in favour of the Appellants; to allow the Appeal and to dismiss the Counter Claim of the Respondents.
RESPONDENTS’ ARGUMENTS:
On my issue one which is Respondents’ issue two, learned counsel submitted that the Honourable Court was right in dismissing the Appellants’ claim. Counsel argued that the Appellants’ witnesses contradicted themselves as to whether Ofada land was communal property or not; that while in their pleadings they averred it was communal land, their evidence disclosed that families owned land in Ofada. Citing DAGAYYA V. STATE (2006) 7 NWLR (PT 980) 637 B ,E & 677  678 E C counsel submitted that the lower Court was right in discountenancing the materially inconsistent testimonies of the Appellants witnesses. Learned counsel further submitted that the Appellants relied on traditional history but failed to plead or adduce relevant evidence in proof. He opined that the lines of successions were not pleaded like who founded the land, how it was founded and particulars of intervening owners; while the Respondents on the other hand pleaded and led cogent and credible evidence of traditional history such as the founder of the land, how it was founded and the family’s genealogy. Counsel submitted that the Appellants filed a Reply to the Statement of Defence & Counter Claim but abandoned same as no witness deposition on oath was filed with the result that no evidence was led on the Reply. Learned counsel citing a number of cases submitted that Appellants claim to acts of possession and ownership are of no consequence, title having been resolved in favour of the Respondents. He urged us to discountenance the submission relating to the history of Ofada land as narrated in the book An outline of the History of Anglican Churches in Egbaland as the submission was not part of the Record of Appeal.
On issue 2 which is Respondents’ issues 1 & 3, learned counsel submitted that the Lower Court found that the Claimants abandoned their pleadings in their Amended Reply to the Statement of Defence and Defence to Counter Claim as no evidence was led in respect thereto and was consequently deemed abandoned. Counsel submitted that there was thus no challenge to the Counter Claim as specifically claimed and that the Lower Court ought to have granted same as claimed upon the credible evidence of the Counter Claimants.

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Counsel submitted that as the Respondents satisfied the conditions laid down in IDUNDUN V.   OKUMAGBA and have satisfactorily proved to the trial Court that Ofada land belonged to Soremekun Fletcher family, the Counter Claim ought to have been granted in full as claimed. He opined that identity of land will only be an issue if it was made an issue in the case; that where the parties in a land in dispute know the boundaries of the land there was no need for the trial Court to make any findings of fact on the boundaries of the land: MOTANYA V. ELINWA (1994) 7 NWLR (PT 356) P. 252. He submitted that Ofada Community/Village which the Appellants represented was known to all the parties and neither the Respondents nor the Appellants in their now abandoned Reply and Defence to Counter Claim raised the issue of the identity of the land in dispute not being clear. Counsel submitted that the Counter Claim was in respect of Ofada land/Town which the Appellant called Ofada Community/Village; there was consequently a defined area upon which the Counter Claim ought to have been wholly granted.
RESOLUTION
In the the locus classicus IDUNDUN V. OKUMAGBA (1976) 6 & 10 S.C 227 AT 246 the SC laid down the five methods of establishing title to land as follows:
(a) By traditional evidence;
(b) By production documents of title;
(c) By various acts of ownership and possession numerous and positive to warrant the inference of ownership;
(d) By acts of long possession and enjoyment of the land; and
(a) By possession of land adjacent to the land in dispute in such circumstances rendering it probable that the owner of the adjacent land is also the owner of the land in dispute.
The above methods of establishing title to land have been followed in a plethora of authorities including the following:
MOGAJI V. CADBURY NIG LTD (1985) 2 NWLR (PT.7) 393; BALOGUN VS. AKANJI (1988) 1 NWLR (PT.70) P. 301; ONWUGBUFOR V. OKOYE (1996) 1 NWLR (PT. 424) 252; SALAMI V. LAWAL (2008) 14 NWLR (PT. 1108) 546; AYORINDE V SOGUNRO (2012) LPELR-SC12/2006; FALEYE V. DADA (2016) LPELR-SC.315/2006.
It is not necessary to plead more than one of the above methods to succeed in establishing title to land. Proof of additional methods can only be by way of caution. OJOH V. KAMALU & ORS (2005) 18 NWLR (PT. 958) 523 @ 574-575; LAWSON V. MANUEL (2006) 10 NWLR (PT. 989) 569; NRUAMAH V EBUZOEME (2013) LPELR-19771(SC).
The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to the declaration of title claimed. He must succeed on the strength of his case and not on the weakness of the Defendant’s case. ANYANWU V MBARA (1992) 5 NWLR (PT. 242) 381; NKADO V OBIANO (1997) 5 NWLR (PT. 503) 31; OYENEYIN V. AKINKUGBE (2010) 4 NWLR (PT. 1184) 265 
If the onus is not discharged, the weakness of the Defendant’s case will not help the plaintiff and the proper judgment will be one dismissing his case. Where however, the case of the Defendant supports that of the plaintiff the plaintiff could rely on it. KODILINYE V ODU (1935) 2 WACA 335; ONISAODU V ELEWUJU (2006) 13 NWLR (PT 998) 517 @ 529-530.
Both sides in this appeal relied on traditional evidence in their attempt to establish their respective title to the land in dispute. To succeed in proving title through traditional history, the Plaintiff or Claimant must prove his title by conclusive and cogent evidence of tradition. The traditional history will succeed on its merit standing alone or fail where such history breaks down for being unreliable in nature or owing to its own internal contradictions. In order to rely on traditional history, a party must plead and prove:-
(a) Who founded the land;
(b) In what manner the land was founded and;
(c) The successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained.
See: AKANBI VS SALAU (2003) 14 NSCQR 1071 AT 1079; EWO VS. ANI (SUPRA) AT 53-54 AND FALOMO VS. ONAKANMI (2005) 11 WRN 141 AT 170.
After setting out the evidence led by the parties in the lower Court and the addresses of counsel, the learned trial judge in his evaluation of the evidence led by the Claimants/Appellants at page 283 of the Record of Appeal observed:
It was held that it is necessary for a party who relies on traditional history to assert ownership of land to plead his traditional history in the proper manner, namely, by stating the names and/or histories of his ancestors right from the founder of the land he asserts

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ownership of, to the last person from whom he inherited or acquired: Total Nigeria Ltd v Nwako (1978) 5 SC 1 @12; Elias V. Omo-Bare (1982) 5 SC 25 @ 57-58; Owoade V. Omitola (Supra).
This, the Claimants failed to do.
In paragraph 2 of the Claimants’ Statement of Claim, they averred and I quote:
The 2nd  14th Plaintiffs are the prominent or principal members of diverse families in Ofada land who first migrated and settled in OFADA and these families hailed essentially from major Egba towns to wit:-
(i) Igbein (ii) Igbore (iii) Ketu (iv) Ijemo (v) Ijaye (vi) Ake (vii) Ago-Oko and (viii) Gbagura respectively in order of their numerical strength.

There is nowhere in the Statement of Claim where the progenitors of these Claimants are mentioned or how the Claimants came to succeed them. The only other pleadings about the first settlers are paragraphs 4 and 6 of the Statement of Claim thus:-
4. The Plaintiffs shall contend at the trial that among the first inhabitants of Ofadaland were notably Soremekun and Ofagada, which team at the material time was led by Soremekun.
6. The Plaintiffs aver 
that Soremekun was from Igbein Town or origin. One of the early settlers was a returning slave from Sierra-Leone named Fletcher who at the time brought into OFADA land, the variety of rice now popularly known as ofada rice.
The Claimants did not trace the descendants of Soremekun to any of the claimants. It is however worthy of note that they traced the descendants of Fletcher to the 1st Defendant.

The evaluation of the evidence by the learned trial judge cannot be faulted. It is quite obvious that the Appellants contrary to their claims in their brief of argument failed woefully in establishing their title to the land in dispute by traditional history. The general claim in paragraph 2 of their Statement of Claim that they are prominent members of diverse families of Ofada land who first migrated and settled in Ofada land simply was inadequate to satisfy the requirement of the law. Each family’s progenitor should have been mentioned by name, not the towns from where they migrated exactly in the same manner they mentioned Soremekun and Fletcher in paragraphs 4 & 6 of the Statement of Claim as the original founders. As the learned trial judge rightly observed, they did not trace their own roots to Soremekun and Fletcher who were mentioned as the founders of Ofada town. If there were other original settlers along with Soremekun and Fletcher as they claimed, the Claimants should have named them specifically and then proceeded to trace the lineage of the Claimants to the men. To worsen their plight, the Appellants made contradictory claims in both their pleadings and evidence as rightly found by the trial judge at page 284 of the Record. The learned trial Judge observed:
In one breadth they claimed that the entire Ofada land is communal land and that the 1st Claimant holds it in trust for the use of the community or family, in another breadth, they said ever since, families had authorities in or over the various parcels of land that were allocated to the original settlers with the consent authority and approval of the Baale as the trustee or custodian of Ofada parcel of land, that in most cases the land was allocated for farming purposes. Yet there is evidence before the Court even from the Claimants under cross-examination that the 1st Claimant purchased 5 acres of land from the 1st Defendant and also from some of the Claimants in the same Ofada. The 1st Claimant himself said under cross-examination that Ofada land is not communal land.
Where land is said to be communally owned, it means only one thing: that it has not been partitioned and so does not admit of personal ownership  seeOjoh Vs Kamalu (Supra). If Ofadaland is communal land i.e. has not been partitioned how come the 1st Claimant could buy portions thereof from some of the Claimants and also from the 1st Defendant.
The 1st Claimant also under cross-examination said the Claimants could have sold part of their father’s land since they do not need his consent to sell same. This contradicts their pleadings and the evidence of 1st D.W.
The Claimants pleaded both settlement and allocation i.e. grant as their root of title which contradict each other. Settlement presupposes the settler came and settled on a portion of land and allocation or grant presupposes that the person came to the settlement later and the first settler or early settlers allocated or granted him a portion of land.As a matter of fact the Claimants did not prove either of

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these. They did not prove who their progenitors were that first settled on the land or that came later to meet the first settlers and were allocated or granted portions of land. Their pleadings and evidence dwelt more on who and who were Baales on the land and which township of Egbaland they belonged to. Since this is not a chieftaincy matter, those pleadings and evidence were not relevant to this instant case.
The effect of contradictions especially ones which are hostilely in conflict in a plaintiff’s case as he presents it is to destroy the plaintiff’s case as presented. The contradictions knock the bottom off the plaintiff’s case as presented.

The findings and evaluation of evidence by the trial judge are impeccable. The Appellants having failed in their primary duty of establishing their root of title, none of the exhibits they tendered can salvage their situation. They cannot in one breadth say that Ofada land is communal land which cannot be disposed of without the consent of the Baale and then in another breadth admit to family ownership of parcels of the land and outright sale of portions by individuals and families. No doubt it may be right that the Appellants have been in possession of the land since the migration of their ancestors from Abeokuta to settle in Ofada to build and farm thereon but they failed to prove how their ancestors came about the land they settled on. On the contrary, the Respondents led credible evidence actually supported by the averments in the Appellants’ statement of claim that their ancestor Soremekun Fletcher Ofada first settled on Ofada land and founded same. It is true that the Appellants raised issues as to whether Soremeku is the same person as Fletcher but it seems of no moment because the Appellents averred in paragraphs 4 & 6 of their Statement of Claim that both men Soremekun and Fletcher were among the first settlers on the land. To clear any doubts I shall set out again the relevant paragraphs:
4. the Plaintiffs shall contend at the trial that among the first inhabitants of Ofadaland were notably Soremekun and Ofagada, which team at the material time was led by Soremekun.
6. The Plaintiffs aver that Soremekun was from Igbein Town or origin. One of the early settlers was a returning slave from 
Sierra-Leone named Fletcher who at the time brought into OFADA land, the variety of rice now popularly known as ofada rice.
Evidence was also led on the paragraphs as shown in the written deposition of DW1 duly adopted at the hearing. So whether it was through Soremekun or Fletcher, the Respondents averred and led evidence that their ancestor was among those who founded Ofadaland; how the land was founded by settlement. They were able to trace the successive persons to whom the land thereafter devolved through an unbroken chain to them. The Appellants indeed did not dispute this claim by the Respondents. They admitted that the Respondents own land in Ofada but that they cannot lay claims to the whole Ofada land. Appellants’ counsel had submitted in his brief of argument that based on Exhibits A and J, the Court below ought to have found as a matter of fact, that just as Fletcher settled on the land through the permission of Igbein township, others also settled on the land and that it is the Igbein township that allocated land to everybody that settled on Ofada land. That claim in Exhibit A is clearly inconsistent with the Appellants’ averment and evidence that Ofada land is communal land allocated by the Baale. The claim that settlement was with the permission of Igbein township and allocation by Igbein Township was not part of the case of the Appellants. There was no such pleading; talk less of proof of same. Besides it is impracticable that settlement on virgin land would be by the permission of Igbein Township. It is only after individuals have settled on virgin land that the question of constituting themselves into an organized government would arise. Indeed Exhibit J completely negates the assertion of the Appellants. The exhibit is the judgment of Alake in Council on a complaint of trespass on late Fletcher’s family land at Ofada by his grand children led by Dr. Ayodele Bajomo against grand children of late Rev Aiyebiwo led by one Mr. Soyoye Soremekun. The final judgment reads thus:
After reviewing the statement of both the complainant, Defendant their witnesses and the report of the chief that went to inspect the land, the committee came up with the following judgment:
That it is clear that from all the evidence that REV. AIYEBIWO was not born in Ofada but was

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sent there on a missionary work. Of course he may purchase farmland or list (sic lease) at Ofada but that MR. SOYOYE SOREMEKUN has not been able to identify where the farm land is situated. He cannot rely on Kunle ordinary land agent who again is not born in Ofada to be the man to show him his great grand fathers land in Ofada. The committee is strongly of the opinion and behave (sic believe) that the land in dispute on Ofada Owode road is LATE PA FLETCHERS farmland was by inheritance now belong to DR. BAJOMO and his sister and brother. MR. SOYOYE SOWEMIMO (sic Soromekun?) is advised to look for his grandfather farmland elsewhere.

Exhibit J was tendered in evidence by the Appellants, apparently in an attempt to prove that Fletcher and Soromekun are different persons. But it definitely confirmed the ownership of land in Ofada by Fletcher and his descendants including the Respondents. It also discredited the evidence of the Appellants that Ofada land is communal land. Although the Respondents started laying claims to ownership of the whole of Ofadaland as a result of the judgment in Exhibits B/H, the judgment though primarily in respect of the fish pond confirmed allotment of farmland in the area by Soremekun Ofada, the Respondentsancestor to settlers in the area. There is absolutely nothing in these exhibits or the evidence led by the Appellants to warrant or justify the claim of improper evaluation of the evidence by the trial judge. The learned trial judge was right in his observation that the final written address of the Claimants/Appellants dealt more with evidence they did not place before the Court. Same applies to the submissions in their brief of argument. Most of the points raised in the brief were not part of the case they presented in the lower Court. The learned trial judge in my view merely patted the Appellants on the back when he observed:
Placing the traditional histories as related by the parties side by side; the history as presented by the Defendants is more sensible and probable and I accept same. In the case of Madumere Vs. Okafor (1990) 3 NWLR (Pt. 138) 327 it was held that where there are two competing assertions by parties to an action the trial judge has a duty to consider carefully and decide on the balance of probabilities which of the assertions to accept. I have done this and I have accepted the Defendant’s assertion.
The case presented by the Appellants in the lower Court was so inconsistent and so lacking in substance that no reasonable Tribunal would have given them any further consideration, talk less of placing same on a scale side by side with the evidence led by the Respondents in order to see on which side the scale tilts. The conclusion of the learned trial judge in dismissing the case of the Appellants cannot be faulted. The learned trial judge in rejecting the case of the Appellant further observed:
The Claimants are claiming Ofadaland as communal land but they admitted that the 1st Defendant’s family has land there but they do not know the extent or the location. Which area of Ofada land do they want the declaration of title over. It is trite that declaration can only be granted in respect of a parcel of land that is certain. The Claimants have not placed before the Court such satisfactory description of the land over which they are seeking the Court’s order of declaration of entitlement. The Claimants’ claim for declaration of title not being over a certain area must therefore fail.
This again is a perfectly correct statement of the law. The baffling aspect of the judgment is that the Respondents’ counter claim is infected with the same malaise as accurately set out above by the learned trial judge. The counter claim is for a declaration that the 1st Defendant’s Family is the rightful owner of the land at Ofada Land and is entitled to the grant of the statutory right of occupancy on the land in dispute. The learned trial judge observed:
The Defendants/Counterclaimants have proved that the 1st Defendant’s family are the rightful owners of the land in Ofada. However the 1st Defendant had given evidence before the Court that his family allotted land to settlers, thus the entitlement to right of occupancy shall be over the un-allotted portions.
Apart from evidence of land allotted to settlers, there is also evidence that portions were sold by the 1st Defendant to the 1st Claimant and that the 1st claimant bought portions of Ofada land from other claimants. So how does anyone determine which portion of Ofada land has been allotted or sold and

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the un-allotted portion thereof? It is true that Ofada land is known to both parties and that its identity is not in dispute. In such a situation identity of the land may not be an issue. See EZUKWU V. UKACHUKWU (2004) 17 NWLR (PT. 902) 227. But from the evidence led in the case, it is obvious that portions of the land have gone to other people by allocation and sale making it untenable to grant declaration of title to the entire Ofada land to anyone. Fully aware of this, the learned trial judge declined to grant title to the Respondents in respect of the entire Ofada land but his lordship granted title to the Respondents for the un-allotted portion. That is clearly a grave error. What is the identity of the un-allotted portion? The Respondents ought to have filed a survey plan to identify portions that have been sold or allocated to other people in order to identify with certainty what is left un-allotted subject to a grant of declaration of title. The law is trite that a declaration of title will not be granted where the identity of the land is uncertain. In the case of EPI V AIGBEDION (1972) 10 SC 53 the Supreme Court per Musdapher JSC held that before a declaration of title to land is granted, the land to which it relates must be identified with certainty. If it is not so ascertained, the claim must fail. In AREMU V ADETORO (2007) 16 NWLR (PT. 1060) 244 @ 257 C the SC observed that a Court will not grant a decree of declaration of title in respect of an unidentified area. See also the following cases UKAEGBU & ORS V NWOLOLO (2009) LPELR-SC 126/2002; SALU V. MADAM EGEIBON (1994) 6 SCNJ (PT. 11) 223; IMAH V OKOGBE (1993) 9 NWLR (PT316) 159.

The argument of learned counsel for the Appellants and the cases cited on issue 2 are very correct and apt. The learned trial judge erred in granting declaration of title of the un-allotted portion of Ofada land to the Respondents. The Respondents agree with this, hence their cross appeal challenging that part of the judgment.
In conclusion, the main appeal succeeds in part and is hereby allowed in part. The part of the judgment of the High Court of Ogun State, Abeokuta delivered on the 24th day of October, 2011 in Suit No: AB/237/2008 dismissing the case of the Appellants is affirmed. The part granting declaration of title of the un-allotted portion of Ofada land to the Respondents is set aside. I make no order as to costs.
CROSS-APPEAL
Chief Funmilayo in the Cross-appeal distilled a sole issue for determination as follows:
WHETHER the Lower Court ought not to have granted the whole Counter claim as sought in respect of the entire land in dispute in the circumstance of this case based on the overwhelming and credible evidence and despite findings that the 1st Defendant’s family are the rightful owners of the land at Ofada.
CROSS-APPELLANTS’ ARGUMENTS:
Chief Funmilayo for the Cross-Appellant in the brief submitted that the Lower Court found that the Claimants abandoned their pleadings in their Amended Reply to statement of Defence and Counter claim. Counsel submitted relying on OJO V GBARORO (2006) 10 NWLR (PT 989) 123 RATIO 9 that pleadings are not evidence and that Facts pleaded for which no evidence is led is deemed abandoned. He opined that there was consequently no challenge to the grant of the Counter claim as specifically claimed and that the Lower Court ought to wholly grant same upon the credible evidence of the Counter claimants. Counsel further submitted that since the Counter claim is unchallenged, there was no reason for the Court not to grant it especially since no issue of the Claimants’ being allottees came up during the trial. He opined that Claimants claimed to be settlers and not allottees of Soremekun Fletchers’ family and limiting the grant of Counter Claim to un-allotted portions is clearly unwarranted and unsupported in law.
Counsel submitted that as a Counter-Claimant, the first Defendant satisfied the conditions laid down in IDUNDUN V OKUMAGBA and satisfactorily proved to the trial Court that Ofada land belonged to Soremekun Fletcher family. They were therefore entitled to the grant of the Counter claim as claimed and proved. He submitted that the Lower Court had no power to grant what was never sought by the parties. He argued that the Claimants never asked for reliefs against grant of the Counter claim. Counsel submitted that the decision of the Lower Court to grant the counter claim partially has occasioned a miscarriage of justice and was influenced by extraneous matters. He again opined that the law is clear that the Court has no power to grant to a

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party a relief which he has not specifically prayed for. Counsel cited in support NGIGE V OBI (2006) 14 NWLR (1999) 1 @ 185 B-E. Learned counsel submitted that the Court is not a Father Christmas and does not award to a party what he has not claimed. He cited YUSUF V. OYETUNDE (1998) 10 SCNJ 1; OLAOPA V. AWOLOWO UNIVERSITY ILE-IFE (1997) 6 SCNJ 46; UGOCHUKWU V. C.C.B. NIGERIA (P.196) F-G. Relying on EDEBIRI V. EDEBIRI (1997) 4 SCNJ 177 (P.196) G and ETAJATA V OLOGBO MJSC VOL 11 PAGE 176 @196 F-G, Counsel submitted that a relief granted by a Court must not be inconsistent with a party???s case and claim and that a party is in the best position to know his claims or reliefs and the that Court cannot go outside the claims or reliefs in search of other claims or reliefs not before it. He opined that the role of a Court of law is to adjudicate on the claims or reliefs placed before it by the parties. Counsel cited in support OLADEJI LTD V. NB PLC VOL 3 MJSC 29 @ 48 B – D.

Learned counsel finally submitted that the Cross Appellant could not execute the judgment due to the unjustifiable limitations in the judgment despite the overwhelming evidence adduced by the counter Claimant and the dismissal of the Claimants’ case.
APPELLANTS/CROSS RESPONDENTS’ ARGUMENTS:
Learned counsel in reply to the contention that the Defence to the counter-Claim was not accompanied by Statement on Oath and that the Appellants thereby abandoned their pleading submitted that even though the Appellants did not file any Additional Statement on Oath after filing their Amended Reply to Statement of Defence and Counter Claim, that there were enough evidence both documentary and oral in support of the Appellants case in the Statement of Claim and witness depositions. Counsel submitted that even if it were not so, the claim being for a declaratory relief the Cross Appellant is still duty bound to establish his counter claim by credible evidence. Further that a counterclaim for declaration of title is an independent action and that the Counter Claimant is under the same obligation as a Plaintiff in a land matter to establish his case by satisfactory evidence in proof of his ownership of the land and of the exact or specific area of land to which he seeks a declaration of title and cannot rely on the weakness of the Defendant’s case or the absence of a defence. He cited in support ABASI V ONIDO (1985) NWLR (PT.548) 83,NKWO V IBILE (1998) 7 NWLR (PT 558) 354; UCHE V EKE 9 NWLR (PT 564) 24. Counsel submitted that in the present case it is not enough or sufficient for the Cross Appellants to rely on the dismissal of the Appellants/Cross Respondents’ case; that they are duty bound to adduce sufficient and satisfactory evidence entitling them to a declaration of title over a specific and ascertained land. He submitted that the Cross Appellants failed to prove the exact land to which they sought a declaration of title to and are consequently not entitled to the order. The failure counsel argued led the Court to erroneously award the Cross appellants a declaration of title to un-allotted portion of Ofada land. Learned counsel submitted that the accepted evidence of allotment of portions of Ofada Land, sales of portions of Ofada Land to various parties including the 1st Appellant/Cross Respondent and allowing these parties to build and farm on the land unconditionally point irresistibly to permanent divestment of the 1st Cross Appellant’s title to the entire Ofada land. He submitted that they cannot therefore make any claim to declaration of title to the entire Ofada land having been divested of the ownership of parts of the land. Counsel submitted that the Court was in grave error when it granted a declaration over un-allotted land without any evidence as to the identity of the un-allotted land. Learned counsel conceded that the Lower Court was wrong as argued by the Cross Appellants to have granted a relief not claimed by them. He urged us to dismiss the Cross Appeal as the Cross Appellants failed to prove the identity of the land to which the Honourable Court can grant them a declaration of title.
RESOLUTION:
The outcome of the main appeal has more or less determined this cross-appeal as the issue herein was also raised in the main appeal. However for completeness I will go ahead to consider the issue raised. The contention of the Cross Appellant that the trial Court ought to have granted their claim in its entirety as there was no defence to the counterclaim is misconceived. The first relief in the Counter Claim is for a declaration that the 1st Defendant’s Family is the rightful owner of

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Ofada Land and is entitled to the grant of the statutory right of occupancy on the land in dispute. Being a declaratory relief, the Counter Claimant must lead evidence to satisfy the Court that he is entitled to the declaration sought. Further, being a land matter, the onus lies on the Counter Claimant just as in the case of the Claimant to satisfy the Court that he is entitled on the evidence he adduced to the declaration of title sought. He must succeed on the strength of his case and not on the weakness of the Defendant’s case. ANYANWU V MBARA (1992) 5 NWLR (PT. 242) 381; NKADO V OBIANO (1997) 5 NWLR (PT. 503) 31; OYENEYIN V. AKINKUGBE(2010) 4 NWLR (PT. 1184) 265. If the onus is not discharged, the weakness of the Claimant’s case or even a complete absence of a defence to the counter claim will not help the Counter Claimant and the proper judgment will be one dismissing his case.
I agree and accept the contention of the Cross Appellant as already decided in the substantive appeal that the learned trial judge erred in granting him a declaration of title to the un-allotted portion of Ofada land. Apart from the many reasons adumbrated by the Cross Appellant; primarily for the reason that a Court has no power to grant a decree of declaration of title in respect of an unidentified area of land. Precisely for the same reason, the Court cannot grant the declaration that the 1st Defendant’s/Cross Appellant’s Family is the rightful owner of the entire Ofada land. In the main appeal above I cited a number of Supreme Court cases and there is a plethora of other authorities that before a declaration of title to land is granted, the land to which it relates must be identified with certainty. If it is not so ascertained, the claim must fail. The learned trial judge in acknowledgment of this principle of law added it as a reason for refusing the grant of declaration in favour of the Appellants/Cross Respondents in the main appeal. His Lordship held at page 290 line 19 of the Record of Appeal  as follows:
The Claimants are claiming the Ofada land as communal land but admitted the 1st Defendant family has land but they do not know the extent or the location. Which area of the land do they want the declaration of title over? It is trite that declaration can only be granted in respect of a parcel of land that is certain. The Claimants have not placed before the Court such satisfactory description of the land over which they are seeking the Court order of declaration of entitlement. The Claimant Claim for declaration of title over a certain area must therefore fail.
Fully aware that he cannot now in the case of the counterclaim somersault and go the opposite direction, his Lordship decided to seek refuge in granting a declaration of title in respect of the un-allotted portion of Ofada land. Unfortunately, the grant is also infested with the same malaise. From the evidence led in the case and agreed upon by all the parties, portions of Ofada land had gone to other people by allocation and outright sale making it untenable to grant declaration of title to the entire Ofada land to the Cross Appellant, notwithstanding the fact that he led satisfactory evidence in proof of his root of title. The contention of the Cross Appellant that the issue of allotment to the Cross Respondents did not arise as they claimed settlement is misconceived. They may have claimed settlement but the evidence led by the parties and accepted by the Court is that

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they are in lawful possession of some parts of Ofada land either as allottees or purchasers. Even the Cross Appellants admitted to this fact. It is misconceived for the Cross Appellant to expect the Court to grant him a declaration of title to Ofada land as claimed in his relief 1 when the evidence led shows that he is not so entitled. Other interests in Ofada land have been proven by evidence to exist. This is therefore one case where a survey plan was an absolute necessity to describe, identify and set apart the areas in the lawful possession of the Cross Respondents by allocation, allotment or outright sale. It would be a miscarriage of justice in the circumstances to grant to the Cross Appellant a declaration of title to the entire Ofada land as counter claimed. The cross appeal is consequently lacking in merit. It is hereby dismissed. I reiterate my judgment in the main appeal: The part of the judgment of the High Court of Ogun State, Abeokuta delivered on the 24th day of October, 2011 in Suit No: AB/237/2008 granting the Cross Appellant declaration of title to the un-allotted portion of Ofada Land is hereby set aside. In its place, the counter claim stands dismissed. I make no order as to costs.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead judgment prepared by my learned brother Chinwe Eugenia Iyizoba, JCA. A claim to a piece of land without clearly defined circumference is one which cannot earn any positive judicial pronouncement. Having admitted that a large expanse of land is a community land, the Appellants cannot claim exclusive possession to a portion of the said land without a survey plan clearly delineating the specific portion claimed. I adopt the lead judgment in the main appeal and the cross appeal along with the consequential orders therein as mine.
MODUPE FASANMI, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother Chinwe Eugenia Iyizoba J.C.A. and I am in agreement with the reasoning and conclusion that the main appeal succeeds. I abide by the consequential orders contained therein inclusive of the order on cost.
The Cross-Appeal deserves to be dismissed for being devoid of merit and substance. Accordingly, I too dismiss the Cross-Appeal. I abide by the consequential orders contained therein.
Appearances

O.K. SALAWU, ESQ. –For Appellant

AND

CHIEF ADEKUNLE FUNMILAYO –For Respondent

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