Alhaji Tijani Salami Vs Chief Surakatu Gbodoolu & Ors (1997)

LAWGLOBAL HUB Lead Judgment Report

ADIO, J.S.C.

In the High Court of Justice, Abeokuta Judicial Division of Ogun State, the reliefs claimed, in paragraph 31 of the Statement of Claim, by the respondents against the appellant were as follows:-

“1. Declaration that the plaintiffs are entitled to certificate of occupancy over the piece or parcel of land in respect of the area verged yellow excluding the area upon which Adewuyi built his house as indicated on survey plan No. AK. 5997/OG drawn by D.O. Akingbogun Licenced Surveyor of Ibadan.

2. Five hundred naira general damages for trespass committed by the defendant who without consent or permission of the plaintiffs unlawfully entered the land and started the erection of a building foundation on the land.
3. Injunction to restrain the defendant his servants and/or agents from further acts of trespass on the land.”

Pleadings were filed and duly exchanged by the parties. The evidence led by the respondents was, inter alia, that the whole area verged “red” on the survey plan, Exhibit “A”, formed part of a larger parcel of land originally settled upon by the Tafin community members when they migrated from their Tafin homestead at Osiele to Abeokuta allegedly in 1830. According to them, part of the area verged red was granted absolutely to one Onlado, a chief of Tafin, and another portion was granted to one Latifu Adewuyi while the parcel of land adjacent to the land of their community was similarly granted absolutely to Adao (appellant’s) community.

The appellant’s case was that the whole land verged “red” in the survey plan (Exhibit “B”) was owned by one Oluwo Adao, the appellant’s ancestor, who was the founder of Adao Aboni family. He (the appellant’s ancestor) acquired it by settlement when he migrated from Adao homestead to Abeokuta in 1830. The land in dispute, according to the appellant, was within Adao family land. On acts of ownership exercised on the land in dispute by his family, the appellant led evidence that his family had on the land in dispute a portion thereof designated as “Igbo Ifa” demarcated originally by eight palm trees planted by his ancestor out of which four were still on the land in dispute. Appellant’s family granted permission to one Latifu Adewuyi (5th P.W.) to be on the land in dispute. When one Alhaji Abudu attempted to cause a surveyor to survey the land in 1971, the appellant’s family successfully resisted the move. The Ibarapa Community Chiefs intervened and resolved the conflict in the matter in favour of the appellant. The incident and the resolution of it in favour of the appellant’s family were known to the 1st P.W. In 1982, the 5th P.W. converted the temporary shed which he erected, with the permission of the appellant’s family, on the land in dispute to a permanent structure. The appellant gave the 5th P.W. a notice to quit and made a report of the matter to the police. The 5th P.W. was arrested by the police and he was released when he gave an undertaking to give up possession.

After due consideration of the evidence led by the parties and of the submissions of their learned counsel, the learned trial judge dismissed the respondents’ claim in its entirety. The learned trial Judge pointed out that there were contradictions between the contents of the survey plan, tendered by the respondents, (Exhibit “A”), and the oral evidence led by the respondents and contradictions in the evidence of the respondents’ witnesses on the location of the land in dispute.

It was not a case of witnesses referring to the location of the land in dispute by different names in which case it could be that the parcel of land being referred to by the witnesses by different names was the same. The evidence being given by them purported to show that the land in dispute was at separate and different places.

On the whole, the learned trial judge rejected the evidence led by the respondents and accepted the appellant’s evidence. He, therefore dismissed the respondents’ claim.

Dissatisfied, with the judgment of the learned trial Judge, the respondents lodged an appeal against it to the Court of Appeal which allowed the appeal. The court below set aside the judgment of the learned trial Judge and ordered a retrial. The court embarked upon the consideration and evaluation of the evidence before the learned trial Judge. In the view of the court below, the question of the location of the land in dispute was not raised and the learned trial Judge was wrong to allow its views ‘on the credibility of the respondents’ witnesses, on the point, to influence it in the evaluation of the evidence and the making of findings of fact on other aspects of the case. Further, in the view of the court below, the approach of the learned trial Judge to the case as a whole was wrong and the proper order to make, in the circumstances, was an order for a retrial.

Dissatisfied, with the judgment of the court below, the appellant lodged an appeal against it to this court. In accordance with the rules of this court, the parties filed and exchanged briefs. The appellant filed an appellant’s brief and the respondents filed a respondents’ brief. The appellant also filed a reply brief. The appellant identified only one issue for determination in his brief while the respondents, in their own brief, identified only one issue for determination. The issue identified for determination in the appellant’s brief appeared to me to be more comprehensive and I will use it for the determination of this appeal. It was as follows:-

“Whether from the totality of the evidence adduced at the trial, the respondents discharged the onus of proof necessary to entitle them to the reliefs claimed.”

The burden is on a plaintiff who is claiming a statutory right of occupancy to satisfy the court that he is entitled on the evidence adduced by him to the declaration claimed. He must rely on the strength of his own case and not on the weakness of the defendant’s case, for the purpose of discharging the burden. See Kodilinye v. Odu (1935) 2 WACA 336; and Imah v. Okogbe (1993) 9 NWLR (Pt.316) 159. The burden on the plaintiff, in the circumstance, includes the requirement that it is for him to prove the identity of the land claimed by him if the parties are not ad idem on the identity of the land. See: Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192. If a plaintiff fails to fulfill the requirement, that is, to prove or establish the identity of the land in dispute his claim for a declaration of statutory right of occupancy will be dismissed. See Makanjuola’s case, supra. In view of the fundamental importance of the requirement, it was one of the first issues deal with by the learned trial Judge. His conclusion was that the respondents did not establish the identity of the land (as part of the land on which members of the respondents’ Community settled). The court below reversed the finding. The finding of the learned trial Judge, which the court below reversed was as follows:-

“Although there is no dispute as to the identity of the land which is the subject matter of this case; it is surprising that whilst the 1st plaintiff says that the land is at Tafin, the 2nd plaintiff says that it

is at Oke Adao and the 5th P.W. says it is at Oke Aregba. There is no evidence that Tafin, Oke Ado, Oke Aregba and Aregba are one and the same thing. The contradictions in the evidence of the plaintiffs’ witnesses highlighted above make it difficult to believe the contention of the plaintiff’s that the land in dispute belonged to Tafin Community or that they granted any land to Adao Community.”