CORAM

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HON. JUSTICE I. G. MBABA, JUSTICE, COURT OF APPEAL

HON. JUSTICE M. DANJUMA , JUSTICE, COURT OF APPEAL

HON. JUSTICE H. R. SHAGARI , JUSTICE, COURT OF APPEA

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PARTIES

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1. MR. BANJI OKEDEYI

2. LAMIDI JAGUN

3. BRIG. GENERAL A. B. ADELEKE

4. OLADELE OYESOMI GUDUGBA (Joined Order of Akintola J. on 20/10/2008 For Himself and on behalf of Gudugba Family)

APPELLANTS 

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1. CHIEF TIRIMISIYU OLADEJO ABIOYE (Baale Akinsawe Village, substituted for Late Chief Olatunji Akintunde)

2.MR. EMMANUEL OLAYIWOLA OJO

3. MR. GEORGE OYEDOYIN (For themselves and on behalf of the Akinsawe Family)

RESPONDENTS 

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AREA(S) OF LAW

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LAND LAW, PROPERTY LAW, CIVIL PROCEDURE, EVIDENCE LAW, CUSTOMARY LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Respondents initiated an action claiming ownership of land stretching from Okoseru to Oko Oyi in Iyanna Offa, Lagelu Local Government Area of Oyo State. They claimed that their ancestor, Akinsaw, acquired the land and founded Akinsawe village. The Appellants contended that their ancestor, Gudugba, received the land from Iba Oluyole as compensation for military service in the early 19th century, and that the Respondents’ ancestor was merely permitted to settle as a customary tenant. The trial court found in favor of the Respondents, leading to this appeal.

 

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HELD

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ISSUES

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1. Whether the trial judge was correct in holding that the Respondents proved their ownership of the land in dispute?

2. Whether the trial judge was correct in not applying the principle in Kojo v. Bonsie, given the conflict in traditional evidence?

3. Whether the trial judge was correct in dismissing the Appellants’ counterclaim summarily?

 

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RATIONES DECIDENDI

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PROOF OF TITLE – REQUIREMENTS:

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“The law is firmly settled that claims or counterclaims for declaration of rights or title to land must be proved by positive evidence of entitlement thereto to the satisfaction of the court before they can succeed and be properly granted. Such claims cannot be granted merely on admissions in pleadings, the absence of a defense by the other party, or even the weakness of the other party’s case.” – Per Mohammed Danjuma, JCA

 

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STANDARD OF PROOF FOR TITLE:

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“The person who seeks a declaration of title must lead evidence of a superior quality, pointing unequivocally to the fact that he, and he alone, is by the evidence presented the owner of the property or land in dispute.” – Per Mohammed Danjuma, JCA

 

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METHODS OF PROVING TITLE:

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“There are five ways of proving a title to land:

(1) proof by traditional evidence;

(2) proof by production of a document of title;

(3) proof by acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the persons exercising such acts are the true owners of the land;

(4) proof by acts of long possession; and (5) proof by possession of connected or adjacent land.” – Per Mohammed Danjuma, JCA

 

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WITNESS CREDIBILITY – BOUNDARY WITNESSES:

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“These witnesses are mostly boundary men who are not related to the Respondents by blood and cannot be said to have a personal interest in the outcome of the case.” – Per Mohammed Danjuma, JCA

 

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COUNTER-CLAIM – INDEPENDENT NATURE:

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“It is trite law that a counterclaim stands as an independent action that operates on its own and cannot be a consequential amendment. For the counterclaim to be brought in at that stage of the suit, there must be a proper prayer before the court.” – Per Mohammed Danjuma, JCA

 

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KOJO V. BONSIE PRINCIPLE – APPLICATION:

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“The rule in Kojo v. Bonsie will only apply when two competing traditional histories are in conflict. In this case, however, the Respondents adduced credible, convincing, and conclusive evidence of their entitlement to the land in dispute.” – Per Mohammed Danjuma, JCA

 

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MAGISTRATE COURT JURISDICTION:

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“Legally, a Magistrate Court is not clothed with jurisdiction to hear and determine matters touching on the declaration of title to land.” – Per Mohammed Danjuma, JCA

 

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PROOF OF TITLE – MINIMUM REQUIREMENTS:

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“A claimant does not necessarily have to prove all five ways of proving title to land. All he needs to do is prove at least one of the five ways to be entitled to judgment.” – Per Mohammed Danjuma, JCA

 

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COUNTER-CLAIM – PROCEDURAL REQUIREMENTS:

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“The Defendants/Appellants cannot bring in the said counterclaim under a consequential amendment derived from the order granted by the lower court to the Respondents to amend their claim.” – Per Mohammed Danjuma, JCA

 

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PROVING TITLE – TRADITIONAL EVIDENCE:

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“The Respondents’ story flowed, and their witnesses were credible. These witnesses are mostly boundary men who are not related to the Respondents by blood and cannot be said to have a personal interest in the outcome of the case.” – Per Mohammed Danjuma, JCA

 

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RES JUDICATA – APPLICATION:

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“I refuse to agree with the Appellants’ position that the judgment in WACA, the Magistrate Court ruling, and all other judgments have laid the issue of ownership of the land in dispute to rest and thus constitute res judicata against the Respondents.” – Per Mohammed Danjuma, JCA

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CONFLICT IN TRADITIONAL EVIDENCE:

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“The issue of conflict in evidence of traditional history exists where there is admissible, reliable, and credible evidence from both sides that conflicts with each other.” – Per Mohammed Danjuma, JCA

 

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AMENDMENT OF PLEADINGS:

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“Since the Defendants/Appellants did not initiate any prayer to formally amend their defense to include a counterclaim before the lower court, and since no order was given, there is simply no counterclaim in the eyes of the law.” – Per Mohammed Danjuma, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. High Court Civil Procedure Rules of Oyo State

3. Evidence Act, 2011

CLICK HERE TO READ FULL JUDGEMENT

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