"Now Section 131(1) of the Evidence Act 2011 is explicit; it commands that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, shall prove that those facts exist.
In the context of the instant case, the law places the burden of proof on the claimants, having asserted that the land under contention was gifted to their progenitor, and thereby the evidential burden of proving by cogent, credible and acceptable evidence showing that the land in question was indeed given to them as alleged. This legal principle has been established in so many decisions of this Court and that of the apex Court, including the Supreme Court case of Odofin vs. Ayoola (1984) 11 SC 72 at 106, where it was held that:
"It is well settled that where a plaintiff relies on grant or original settlement as title to claim the land in dispute, the burden is on him to establish such grant or original settlement, this he can do by cogent and acceptable evidence of tradition, whether or not accompanied by exercise of dominion which alone may be sufficient to establish title." see also the decisions of Erinle vs. Aluko (supra); Olubodun & 4 ors vs. Lawal & Anor, where it was also held that:
"It is well settled that where the plaintiff relies on a grant or original settlement as title to claim the land in dispute, the burden is on him to establish such grant or original settlement this he can do by cogent and acceptable evidence of tradition, whether or not accompanied by exercise of dominion which also may be sufficient to establish title it follows therefore that where traditional evidence of that alleged from which the title is derived, is lacking or rejected, as was in this case, such evidence is not only merely inconclusive but also cannot be relied upon whether any other acts positive or numerous can support evidence of ownership." See Kuma vs. Kuma (1936) 5 WACA 4, Nwokafor vs. Udegbe (1963) 1 ALL NLR 107, Onobruchere vs. Esegine (1986) 1NWLR (pt. 19) 799.
In proving their case, the appellants called seven witnesses and tendered some exhibits, and from the totality of the evidence adduced, it is evident as argued that none of the documents exhibited by them, established or showed that the alleged grant or gift to them, was by way of any proven document. That being the case, the respondent's submission that claimants relied on oral traditional evidence and acts of possession by the claimants in establishing the said grant of the land in dispute to them appears to be correct.
Where the claimants proceeds and offers evidence in line with traditional history/evidence, admittedly is one of the ways of proving title to land as established in the case of Idundun vs. Okumagba (1976) 1 NMLR 200 per FataiWilliams JSC. The position of the law with regards to proof by traditional history is as set down in the case of Idundun vs. Okumagba (supra), Piaro vs. Tenalo (1976) 12 SC 31, Balogun vs. Akanji (1988) 1 NWLR (pt. 70) 301 amongst many others, that where a plaintiff such as the claimant in the lower Court pleads his primary root of title based on traditional history, he must in order to succeed prove the following: a. who founded the land. b. how it was founded and, c. particulars of the intervening owners through whom the plaintiff or claimant claims.
The appellants from paragraphs 5.07 - 5.09 of the brief, alluded to some paragraphs in the statement of defense, asserting that respondent admitted paragraph 17 and 18 of the statement of claim, thereby positing that a fact not denied is deemed admitted. Appellants still argued that from evidence it is clear that respondents have no interest in Halieru Adedoyin's property, since they do not have the right of inheritance. Appellants further hold the view that the cases of Matanmi & Ors vs. Victoria Dada (supra), Odofin vs. Ayoola (supra) and other cases cited are inapplicable and or supports the appellants' case.
Let me state at the outset that the appellants are off target. The position of the law still remains that where the source of the claimant's title is challenged as in the instant case, the claimant must establish his title to such land, this he must do based on the strength of the case made by him, regardless of the weakness of the defense case, and further satisfy the Court as to source of the title founding his claim. He cannot ignore how his progenitors allegedly got the land and concentrate only in the pursuit of his own title to the said land, as he would not have acquired a valid title if his predecessors in title had no valid title to give. See Adeyemi vs. Ovba (2017) ALL FWLR (pt. 870) 1004 @ 1051 per Tsammani JCA. In the instant case, the claimants' root of title having been founded on the assertion that Oba Sule integrated the progenitors of the appellants into his family fold, and thereby relinquished the entire Osin land as gift to the family/progenitors of the appellants, must proceed to plead and by cogent, credible and acceptable evidence establish the assertion made. See Haruna vs. Isah (2016) ALL FWLR (pt. 818) 918 @ 942, Osukpong vs. Eduoika (2016) 1 NWLR (pt. 1493) 329 @ 336, Elegushi vs. Oseni (2005) 14 NWLR (pt. 945) 348.
The Apex Court in Odofin vs. Ayoola (supra) gave guidance as to what is expected of the appellants thus; "Where a party relies on and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the trial Court. Other evidence of acts of possession after the grant will merely go to strengthen the grant. But where as in this case, the proof of the grant is inconclusive, the bottom is knocked out of the plaintiff/appellants claim. When his root ceases to stand, the stem and branches will fall with the root." Or as provided by Section 66 of the Evidence Act, "Where the title to or interest in family or communal land is in issue, oral evidence or family or communal tradition concerning such title or interest is admissible."
I do agree with the learned counsel for the respondent that in placing reliance on traditional history, the direction of the Apex Court in the case of Alli vs. Alesinloye (2000) 4 SC (pt. 1) 111, to the effect that evidence of tradition may be more easily established if it comes from members of the family or community concerned, and also Erinle vs. Aluko (supra) becomes necessary."
Per BARKA, J.C.A. in ADEDOYIN & ORS v. AMOO CITATION: (2018) LPELR-44978(CA)
I
