MR. JOSEPH AYIM v. MRS. HELEN AGOM
(2011)LCN/4404(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2011
CA/C/207/2009
RATIO
IDENTITY OF THE LAND IN DISPUTE: WHETHER WHERE PARTIES ARE AD IDEM ON THE IDENTITY OF THE LAND IN DISPUTE, THE FACT THAT DIFFERENT NAMES ARE GIVEN TO THE LAND OR THE AREA WHERE THE LAND IS LOCATED IS CALLED DIFFERENT NAMES, IS NOT FATAL TO THE PARTY CLAIMING SUCH LAND
It has been held that where parties by the evidence adduced both oral and documentary are ad idem on the identity of the land in the fact that different names are given to the land or the area where the land is located is called different names is not fatal to the party claiming such land. See OGBU v. WOKOMA (2005) 7 SC (Pt.11) 123; See also EZUKWU v UKACHUKWU (2004) 6 – 7 SC 96. The identity of land in declaration of title matters comes to issue only when the Defendant raises it in his defence. See ADELUSOLA v. AKINDE (2004) 4 – S SC 11. PER KUMAI BAYANG AKAAHS, J.C.A.
IDENTITY OF THE LAND IN DISPUTE: WHETHER WHERE THE LAND IN DISPUTE IS KNOWN TO THE PARTIES, THE BURDEN IS NO LONGER ON THE PLAINTIFF TO ESTABLISH ITS IDENTITY
The law is that where the land in dispute is known to the parties, the burden is no longer on the plaintiff to establish its identity. See Akinterinwa v. Oladunjoye (2000) 6 NWLR (Pt.659) 92. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKAILU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
MR. JOSEPH AYIM Appellant(s)
AND
MRS. HELEN AGOM
(Suing for herself and as Representing children of Late Uko Utogor of Ishibori, Ogoja) Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): The Plaintiff who sued in a representative capacity claimed against the Defendants in suit Nos. HJ/L7/2003, HJ/18/2003 and HJ/20/2003 (which were later consolidated) title to the entire land with four bedrooms compound known and called Uko Utogor in accordance with the Nkim custom, upon the demise of the Defendant, Madam Ushuma Utogor in 2006, she was substituted by her eldest son Joseph Ayim and judgment was entered in favour of the Plaintiff against him in suit No. HJ/20/2003 on 4h February, 2009. He was declared a trespasser and N5,000.00 was awarded as damages for the trespass. In addition to the perpetual injunction against the defendant the court granted the following declaratory reliefs in favour of the plaintiff.
1. The plaintiffs are entitled to the deemed right of occupancy of the land and the four rooms house lying and situated at Ushi-Utamte, Igoli more particularly known and called “UKO UTOGOR’S COMPOUND, USHI-UTAMTE”.
2. The plaintiffs are entitled to the land and property called ‘UKO UTOGOR’S COMPOUND, as the rightful inheritors of the estate in accordance with Nkim custom.
3. The six rooms foundation started in the land by the Defendant is without leave, license (sic) and authority of the Plaintiffs, the rightful owners (See page 191 of the records).
The Defendant was dissatisfied with the judgment and appealed against it in his Notice of Appeal dated 6th -July, 2009 but filed on 30/7/2009 containing five grounds of appeal. (see pages 194 – 198 of the records).
Briefs were filed and exchanged. Two issues were formulated in the Appellant’s brief as follows:
1. whether the learned Judge made a correct approach to the evidence led by the parties by granting a declaration of title to land in favour of the Respondent when the identity of the land is unknown (Grounds 1 & 4).
2. Whether the learned judge properly directed himself as the burden of proof having regard to the nature of the issues placed before him, in particular, evidence of tradition and acts of possession canvassed by the defendants in their pleadings and evidence (Grounds 3 & 5)
The Respondent adopted the issues as framed by the Appellant.
Since no issue was formulated from ground 2, it is deemed abandoned and is accordingly struck out.
Both counsel agreed that the onus is on the plaintiff to establish with certainty the identity of the land to be entitled to a declaration of title and the plaintiff must succeed on the strength of his case and not the weakness of the defence especially where no survey plan of the land in dispute has been tendered by either side. See ODUNZE v. NWOSU (2007) 13 NWLR (pt.1050) 35. Learned counsel for the Respondent however argued that there are exceptions to the general rule. One of such exception is that the Plaintiff can rely on the facts presented by the Defence if such facts support his case. Learned counsel invited this court to discern from the pleadings and evidence and that the identity of the land was never in dispute. That the parties know the land and admitted it in their pleadings. The denial of the appellant relates to the name which the respondent said is Uko Utogor’s Compound”.
It has been held that where parties by the evidence adduced both oral and documentary are ad idem on the identity of the land in the fact that different names are given to the land or the area where the land is located is called different names is not fatal to the party claiming such land. See OGBU v. WOKOMA (2005) 7 SC (Pt.11) 123; See also EZUKWU v UKACHUKWU (2004) 6 – 7 SC 96. The identity of land in declaration of title matters comes to issue only when the Defendant raises it in his defence. See ADELUSOLA v. AKINDE (2004) 4 – S SC 11.
In paragraphs 3, 5, 6 and 12 in the statement of claim in suit HJ/L7/2003, the plaintiff averred as follows:
“3. The 1st Defendant is the elder sister of Late Uko Utogor. She is a widow and was married to late Papa Ugbut Alada. She is a farmer and reside at “Uko Utogor’s compound” Ushi-Utamte, Igoli-Ogoja.
5. The plaintiff states that their late father in his life time had two compounds at No.9 Ntol Mgbeje Street, Igoli-Ogoja (with two house (sic) where he lived with his wives and children and a large expense of land with a four rooms house where he collected rent. On the shi-utamete land he planted coconuts, palm trees, plantain and plaintiff sugarcane.
6. The land at Ushi-Utamte called “Uko Utogor’s compound was acquired on or about 1955 where (sic) he was a young man. He initially built his first house there, a round mud hut roofed with grass, where he first resided with his first wife Madam Mgbo Uto, mother to the plaintiff and her younger sister Ugoma Uko. When the hut got burnt, the plaintiff’s father then built a four rooms house roofed with zinc.
12. Late in the year (about September), the plaintiff observed that the 1st defendant had started a six rooms concrete house, northwards of the existing four rooms house property of their father and their inheritance by Nkim custom and law. The 1st defendant did not take permission nor consult the plaintiff and her siblings before commencement to build.”
The 1st and 3rd Defendants reacted to these averments in their paragraphs 6, 8, 9, 10, 11 and 15 of their joint Statement of Defence in the consolidated suits HJ/17/2003; HJ/18/2003 and HJ/20/2003 when they pleaded as follows:
“6. The 1st Defendant admits paragraph 3 only to the extent that she is the elder sister to late Uko Utogor, farmer and widow but she denies that the land in question where she resides is called “Uko Utogor’s Compound at Ushi-tamte, Igoli-Ogoja.
The 1st Defendant admits paragraph 5 only to the extent that the late father to the plaintiff who was her younger brother had a compound at No. 9, Ntol Mgbeje Street, Igoli-Ogoja (with two houses) where he lived with his wives and children and denies that he planted coconuts, palm trees, plantain and sugar cane at Ushi-tamte land were not planted by anybody.
9. The 1st Defendant denies that the land at Ushi-tamte is called “Uko-Utogor’s compound”. She further denies that his (late younger brother Uko – Utogor acquired the land at Ushi-tamte. The 1st Defendant built houses on the land. The Plaintiff claim is false and she is put to strict proof.
10. In further answer to the above paragraph, the 1st Defendant avers that the land lying and situate at Ushi-tamte Street, Igoli-Ogoja was the landed property of Mr. Akpotu Igbaji who was the brother to the 1st Defendanfs mother Madam Ugair Amah. Mr. Akpotu Igbaju was the first person that founded and settled on the parcel of land for farming purpose from time immemorial.
11. The 1st Defendant states that upon the death of Mr. Akpotu Igbaji her mother Madam Ugair Amah inherited the land. She states that herself and her two younger brothers namely; Mr. Uko Utogor and late Udam Utogor were staying with their mother on that parcel of land. The 1st Defendant states that upon the death of their mother she inherited that land in question in accordance with Nkim custom, which is hereby pleaded and took care of Uko Utogor and Udam Utogor until they grew up and settled on their personal land. The land acquired by Mr. Uko Utogor was No. 9, Ntol Mgbaje Street, Igoli-Ogoja while Udam Utogor traveled abroad.
15. The 1st Defendant admits paragraph 12 to the extent that she built six rooms concrete house to her already existing house of four rooms. The 1st defendant denies that the land belonged to her brother late Uko Utogor. The 1st Defendant admits not obtaining permission from the plaintiff, as the land is her land.”
From the pleadings reproduced above, the parties know the land and its identity was not put in issue. It is agreed by both the Plaintiff and 1st Defendant that Patrick was buried on the land in dispute. The learned trial Judge found that the identity of the land is well known to the parties and resolved the dispute in favour of the Plaintiff because the traditional evidence called by the plaintiff was more credible than that called by the Defendants. Furthermore the Plaintiff tendered Exh. ‘4’ to show that her father had collected rent in part of the 4 room house while the 1st Defendant did not tender any evidence to show that his mother rented out the 4 room which was purportedly built by her. The evidence of PW2 further cemented the Plaintiffs case since he was the one that roofed the building.
I cannot fault the evaluation of the evidence which the learned trial Judge made. The credibility he ascribed to the witnesses is his exclusive preserve and his findings are not perverse.
As the appeal is predicated on the identity of the land in dispute which was not put in issue in the statement of Defence, the appeal lacks, rnerit and I accordingly dismiss it and the judgment of the lower court delivered by Edem J. in the consolidated Suit Nos. HJ/17/2003 and HJ/20/2003 on 4th February 2009 is hereby affirmed.
I assess costs of N10,000.00 in favour of the Respondent against the Appellant.
JA’AFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my teamed brother Kumai Bayang Akaahs, JCA.
I agree with at the reasons given in it and the conclusion reached. It is to be noted that the question of evaluation of the evidence in the exclusive preserve of the trial court and its findings are not perverse.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading the draft of the reading judgment just delivered by my learned brother, Akaahs, JCA.
I agree with the reasoning and conclusion therein.
The law is that where the land in dispute is known to the parties, the burden is no longer on the plaintiff to establish its identity. See Akinterinwa v. Oladunjoye (2000) 6 NWLR (Pt.659) 92.
The appeal lacks merit and I too dismiss it with costs as ordered in the leading judgment.
Appearances
Joe Agi, SAN, with M. ShuaibuFor Appellant
AND
G. I. UganFor Respondent
