Proof of Claim of Title to Land

IIn the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 4th day of July, 2025

Before Their Lordships

Mohammed Lawal Garba

Moore Abraham Aseimo Adumein

Stephen Jonah Adah

Jamilu Yammama Tukur

  Mohammed Baba Idris                                   

Justices, Supreme Court

SC/65/2018

Between

Mr Sunday Olusi                                                                                   Appellant                                                   

And

Mr Julius Olaitan Obaniyi         Respondent                                          

(For himself and on behalf of other members

 of Aparisu Family of Ikakumo Akolo)

(Lead Judgement delivered by Honourable Stephen Jonah Adah, JSC)

Facts

The Respondent filed an action against the Appellant at the High Court of Ondo State, seeking inter alia, a declaration that the Respondent’s family is the rightful owner of a parcel of land known as Akanyin Land, Ikakumo-Akoko and therefore, he is entitled to the customary right of occupancy thereof. The Respondent sought in the alternative, a declaration that on the basis of the judgement in Suit No. IK/56/73 – Chief Daniel Olusi v Adamu Olojo & Ors decided at Owo/Ikare Grade ‘A’ Customary Court and Suit No. HAD/19/74 – Chief Daniel Olusi v Adamu Olojo & Ors decided at the High Court of Justice, Ado-Ekiti on 27th January, 1978, he is entitled to the customary right of occupancy of the said land. The Respondent also sought an order of injunction against the Appellant, restraining him from further acts of trespass on the land, as well as damages. The Appellant filed his defence, and also counter-claimed for declaration of title on the subject land.

After the conclusion of trial and adoption of final written addresses, the trial court delivered its judgement in which it granted all the reliefs sought by the Respondent, and dismissed the Appellant’s counter-claim. Aggrieved, the Appellant appealed to the Court of Appeal. However, the Court of Appeal dismissed the appeal, and affirmed the judgement of the trial court.

The Appellant thus, lodged a further appeal before the Supreme Court. Counsel for respective parties filed and exchanged their respective briefs of argument. Counsel for the Respondent raised a Preliminary Objection in the Respondent’s brief, challenging the competence of the Appeal.

Arguments on Preliminary Objection

Counsel for the Respondent argued that the Appellant’s appeal was incompetent, because the Appellant formulated issues for determination of the appeal before the Supreme Court based on the judgement of the trial court, instead of the decision of the Court of Appeal.

 In reaction, Counsel for the Appellant argued that the issues raised in the objection had no nexus or link with the grounds of appeal, and for this reason, the preliminary objection should be dismissed.

Court’s Ruling on the Preliminary Objection 

The Supreme Court held that the process of a preliminary objection should only be employed or used, to challenge the competence of an appeal or cross-appeal which is so fundamentally incompetent that the court is prevented from hearing, and not where the Respondent’s grouse is on how the issues identified by the Appellant are couched. The Apex Court held that the main purpose of formulating issues for determination is to enable the parties to narrow down the issues in controversy in the grounds of appeal filed, and an issue may be limited to one ground or traverse more than one ground of appeal, therefore, formulation of issues cannot be an issue for preliminary objection as in the instant case. The Supreme Court held further that from its record, the appeal before it is against the decision of the Court of Appeal, and not the High Court as contended by the Appellant. The Court found that the preliminary objection was unsustainable, and consequently dismissed it.

 Thereafter, the Supreme Court proceeded to consider the main issues in the appeal.

Issues for Determination:

1. Whether from the pleadings and available evidence on record, the Respondent proved his case, and whether the counter-claim was not proved.

2. Whether the land adjudged the Respondent’s was ascertainable in extent and boundaries, and whether the Appellant did not ascertain the land claimed by him.

3. Whether an action in trespass can lie from the pleadings and available evidence on record.

Arguments

On the first issue, Counsel for the Appellant reproduced the five ways of proving title to land, and argued that there is no evidence about how the descendants of Akanyin which the Respondent claimed he belonged to, came into ownership of the subject land. He argued further that a party who relied on traditional history as his root of title but failed to prove same, cannot rely on act of possession to claim title to land. Counsel submitted that the Respondent failed to establish his ownership of the land in dispute, whereas the Appellant established his ownership of the land.

On the second issue, Counsel for the Appellant argued that the Respondent failed to ascertain the exactness and extent of the land claimed by him, hence, his claim ought to have been dismissed.

On the third issue, Counsel for the Appellant argued that a customary tenant cannot be a trespasser on a land granted to him by his landlord, and that a customary tenant is only enjoined to sue for forfeiture of his tenancy and not for an action in trespass. Counsel submitted that the reliefs granted to the Respondent were irregular, inappropriate and invalid.

Reacting on the first and second issues, Counsel for the Respondent argued that the Respondent, via the testimony of PW1, clearly identified the land in dispute and stated the exact description of the land, including all the boundary marks, such as streams, rivers, rocks, as well as surrounding land belonging to other families. Counsel maintained that PW1 was never discredited under cross-examination, and his testimony was buttressed by the evidence of PW2 and the Respondent who gave detailed evidence of ownership of the land. Counsel submitted that the testimonies of PW1, PW2, PW3 and PW4, as well as the documentary evidence in Exhibits P1, P2 and P3, showed that the Respondent overwhelmingly identified and successfully established title to the land, and it was based on this that the lower courts held that the Respondent had duly established his case on the balance of probabilities.

 Responding on the 3rd issue, Counsel for the Respondent argued that the activities of the Appellant by entering on the land and felling trees amounted to an act of trespass, hence, the judgement of the trial court against the Appellant for trespass and the affirmation of the trial court’s decision by the Court of Appeal, were unassailable.

Court’s Judgement and Rationale

Deciding the first and second issues together, the Supreme Court held that in a claim for declaration of title to land, the law requires the Claimant to put before the court evidence of his claim, and prove his case on the balance of probabilities or on the preponderance of evidence. The Supreme Court referred to the provisions of Sections 131 and 132 of the Evidence Act, 2011. The Apex Court reiterated the long-standing position of the law that the five ways of proving title to land are: (a) Traditional evidence; (b) Production of title document (c) Proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land; (d) Acts of long possession and enjoyment of the land; (e) Proof of adjacent land to the land in dispute, in such circumstances which render it probable that the owner of the adjacent land.

The Court held that a Claimant may make a choice on which way he wants to direct his evidence to establish his title, and a Claimant may also rely on one or more of the ways to establish his title. However, one mode of proving title will suffice, if the Claimant adduces credible evidence to substantiate his claim. The Court referred to the cases of Idundun v Okumagba (1976) 1 NMLR 200 and Olukoya v Ashiru (2006) All FWLR (Pt. 322) 1479.

The Supreme Court held that, in the instant case, the Respondent majorly elected to establish his title through traditional evidence as set out in his amended statement of claim before the trial court, and had presented four witnesses and submitted five documentary exhibits in support thereof. The Court held that the Respondent’s witnesses gave detailed evidence of how Akanyi, the forefather of the Respondent and leader of the Aparisu Family first settled on the land, and how ownership of the land devolved on his descendants and also passed to the Respondent’s grandfather by succession, after which the land passed to the Respondent’s father, and is currently being held by family head of the Respondent’s family, Simeon Obaniyi.

The Court held further that the trial court and the Court of Appeal also found concurrently, that the identity of the land in dispute was well known to the parties and well established from the survey – Exhibit P3 and other exhibits before the trial court, as well as the testimony of PW1 who testified exclusively on the location and identity of the land. The Court held that Exhibits P1 and P4 in particular, which were judgements of court, also gave overwhelming weight to the case of the Respondent. The Supreme Court found that there was clearly no error in the concurrent findings made by the two lower courts that the Respondent established his claim and the identity of the land in dispute.

On the third issue, the Court held that it is a well-established position of the law that possession entitles a party to sue for trespass to land, however, where there are conflicting claims of possession by both parties before the court, trespass will be at the suit of the party that can show that title is with him. The Court referred to the case of Motunwase v Sorungbe & Anor. (1988) LPELR – 1920 (SC).

The Supreme Court found that in the instant case, the Respondent has proved a better title to the land, so the Court of Appeal cannot be faulted for affirming the issue of trespass against the Appellant.

Appeal Dismissed.

Representation

T. M. Ogunmoroti with Ayetunde Adeleke for the Appellant.

Victor U. Udeh with Ekere E. Bassey for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)