MR. IMOHIMI IRIAJEN v. FLORENCE OSUNBOR & ANOR
(2012)LCN/5532(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of July, 2012
CA/B/372/2010
RATIO
LAND LAW: ON WHOM LIES THE ONUS OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND
The onus of proving title to any piece of land in dispute on the balance of probabilities is always on the Plaintiff who claims that title and this onus never shifts. See IFO V. ESSIEN (1986) 6 NWLR (PT. 41) 378 at 388. This is so because in a claim for declaration of title to land, the Plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. If the onus is not discharged, the weakness of the defendant’s case will not help him and the proper Judgment is for the defendant.
See OWOADE V. OMITOLA (1988) 2 NWLR (PT. 77) 413 at 427.
KODILINYE V. ODU (1935) 2 WACA 336 at 337.
ODESANYA V. EWEDEMI (1962) 1 All NLR. 320.
ATUANYA V. ONYEJEKWE (1975) 3 S. C. 161 and
BASHUA V. MAJA (1976) 11 SC. 143. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
LAND LAW: DUTY OF A PLAINTIFF IN AN ACTION FOR DECLARATION OF TITLE
The first duty of a Plaintiff who comes to court in an action for a declaration of title over land is to show clearly, precisely and distinctly the area and location of the land to which such declaration of title relates. This defined area and location must appear both in his pleading and his evidence in support of his case.
See OKEBULU V. ABAAH (1988) 2 NWLR (PT.77) 496 at 502.
AGBONFO V. AIWEREOBA (1988) 1 NWLR (PT. 70) 325 at 342
OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (PT. 95) 26 at 42 and BARUWA V. OGUNSHOLA (1938) 4 WACA 195. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
MR. IMOHIMI IRIAJEN
(Suing by his next friend MRS MARY IRIAJEN) Appellant(s)
AND
1) FLORENCE OSUNBOR
2) JOHNSON OSAWE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in these proceedings had, by his next friend, Mrs Mary Iriajen, brought an action against the Respondents at the Benin Judicial Division of the Edo State High Court wherein he claimed a declaration of entitlement to the Statutory Right of Occupancy over a parcel of land situate at Iyamu Street, Benin and shown in plan No. DISC/ED2007/D03.
Special and general damages for trespass; and perpetual injunction, pleadings were filed and exchanged. At the conclusion of hearing, the learned trial Chief Judge, dismissed the claims of the Appellant holding as he did that “the plaintiff has failed to prove her claims”.
Dissatisfied with the Judgment of the said learned Chief Judge, the Appellant lodged the present appeal on 12 (twelve) grounds. The Grounds of Appeal with their particulars are set out at pages 136 – 144 of the Record of Appeal and I do not find any need to set them out in this Judgment. However, learned counsel for the Appellant, Mr. Osarenkhoe, in his brief of argument at pages 1 – 2 formulated 4 issues for determination as arising from the Grounds of Appeal. Those Issues read:
1) Whether having regard to the pleadings and evidence of the parties, and the law applicable thereto, the learned trial Judge was right in placing on the Appellant the burden of proving that the land in dispute is the same as the land granted to J.E.W. Iriajen (Appellant’s predecessor-in-title) by Uwelu Plot Allotment Committee?
Grounds 1, 3, 5 and 10.
2) Whether by their pleadings and evidence, the burden to prove that the land in dispute is NOT the land allocated by Uwelu Plot Allotment Committee, ward 42B, Benin City to late Mr. J.E.W. Iriajen was not on the Respondents and whether the Respondents discharged the said burden?
Grounds 7 and 8.
3) Assuming the learned trial Chief Judge rightly placed the burden of proof on the Appellant as he did to show that the land in dispute is the same as the land granted to his predecessor in title, whether Appellant did not discharge the said burden?
Grounds 4 and 6
4) Whether the learned trial Chief Judge was right in dismissing the Appellant’s claims?
Grounds 11 and 12
On his part, learned counsel for the Respondents raised two issues as arising for determination which two issues tally with the two issues considered by the learned trial Chief Judge in his Judgment at page 128 of the Records, the carnel of which are rephrased thus;
“(1) Whether the Plaintiff was able to show that the land in dispute is the same land granted to his predecessor in-title.
(2) If the answer to issue 1 is affirmative, whether the Plaintiff was entitled to the reliefs sought.”
In my view the 1st three issues raised by the Appellant in his brief as set out above and the 1st issue raised by the Respondents also indicated above touch on the burden of proof in this case. In other words, the issue on this Point comes to this:
“Having regard to the state of pleadings in the case, on whom did the burden of proof lie; did the party on whom it lay discharge it?
The central arguments of learned counsel for the parties concentrated on this crucial point and issue. For counsel for the Appellant, it lay on the Respondents and they did not discharge it and so judgment ought to have been entered for him on his claims. For the Respondents, it lay on the Appellant and he did not discharge it and so judgment was rightly entered against him. Which side is right? This appeal turns on this narrow point. The arguments of the Appellant’s counsel, Mr. Osarenkhoe, in his brief of argument, in summary, is that on the state of the pleadings of the parties particularly paragraphs 4 ,5, 6a, 6b, 7 – 10, 18 and 19 of the 3rd amended Statement of Claim; the evidence of PW1 – PW5 and Exhibits C, F, F12, G, H, J and T and paragraphs 2, 4a 4e, 7 9 of the Respondents’ 2nd further amended Statement of Defence; the evidence of DW1 – DW4 and exhibits D, M, N, P, O and S, the burden was on the Respondents to prove that the land in dispute which, according to the Appellant, he had proved to be the land allocated to his grandfather who in turn gave it to him, was not the land allocated to his grandfather. Copious references were made to the pleadings of the parties, the evidence led by both sides and several decided cases and statutory provisions. The learned trial Chief Judge, was therefore, in his view, in error to have held that the burden was on the Appellant to prove that the land in dispute was the one granted to his grandfather.
In his own reply to the above contentions of Appellant’s counsel, learned counsel for the Respondents, in his brief, referred to the evidence of PW3, PW5, DW4 and Exhibit D and the contradictory evidence of the Plaintiff (Appellant) in relation to Exhibit D and submitted that the Appellant did not prove that the land in dispute was the land granted his grandfather which burden was on him.
The case of the Appellant at the lower court was that the land in dispute was granted to his grandfather, one E.W. Iriajen according to Bini native customary law through the Uwelu Plot Allotment Committee and that his said grandfather exercised acts of ownership and possession thereon by virtue of the grant but later transferred the land to him as a birthday gift according to Ora Customary Law. Following this gift he exercised acts of ownership and possession on the land through his mother, his next-friend in this action when suddenly in 1997, the Respondents broke into the land, destroyed his cassava farm thereon and commenced the erection of a building therein in the process of which they used up the blocks and sand he had assembled on the land without his leave or licence.
On the other hand, the case of the Respondents at the lower court was that the land in dispute over which the Appellant laid claim at the lower court was their land inherited from their predecessor in-title, one Osughe Amegor, who acquired same from Plot Allotment Committee in 1977 with the Oba’s approval in accordance with Benin native law and custom. It was part of the Respondents’ case that the land in dispute was never allocated to the Appellant’s predecessor in-title.
This is a land matter in which the Appellant claimed a declaration of entitlement to a right of occupancy over the land in dispute. The Respondents did not lodge any counter-claim at the lower court but in their defence laid claim to the land over which the Appellant sought the above declaration as a defence to the action.
The onus of proving title to any piece of land in dispute on the balance of probabilities is always on the Plaintiff who claims that title and this onus never shifts. See IFO V. ESSIEN (1986) 6 NWLR (PT. 41) 378 at 388. This is so because in a claim for declaration of title to land, the Plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. If the onus is not discharged, the weakness of the defendant’s case will not help him and the proper Judgment is for the defendant.
See OWOADE V. OMITOLA (1988) 2 NWLR (PT. 77) 413 at 427.
KODILINYE V. ODU (1935) 2 WACA 336 at 337.
ODESANYA V. EWEDEMI (1962) 1 All NLR. 320.
ATUANYA V. ONYEJEKWE (1975) 3 S. C. 161 and
BASHUA V. MAJA (1976) 11 SC. 143.
In the instant case, the learned trial Chief Judge not only adverted to these principles of law in land matters bordering on declarations to title, but also captured those principles at page 127 of the Records wherein he stated inter alia as follows:
“Generally in land matters, the burden is on the Plaintiff to prove his case solely on the strength of the evidence by him and his witnesses. The Plaintiff in land matters cannot rely on the weakness of the defence as his proof, except where such evidence from the defence, supports his case … The first duty of a plaintiff in a land case is to prove the identity of the land he or she is claiming. He must then prove his title. Where he traces his title to a particular person, he must prove how that person acquired title.”
The trial Chief Judge then proceeded at pages 129 134, to perceive, examine and evaluate the evidence presented by the parties in the case.
Of crucial importance in the case is the evidence of the Plaintiff, his witnesses PW3, PW5 and Exhibits C and D. Exhibit C was said to be the approval given to the Appellant’s predecessor-in-title by the Oba of Benin, while Exhibit D, from the evidence, was the plan made of the land granted Appellant’s successor-in-title and which the approval in Exhibit C relates. Exhibit D was made on 17/2/78 almost twenty years before the action in the lower court. Under cross-examination in relation to Exhibit D, PW3 had stated at page 22 lines 24 – 25 and lines 30 and page 22 lines 1 – 2 inter alia thus:
“… One of the documents given to my wife by my father which she gave me, is a property survey plan. My father surveyed the land in 1978. I saw the plan, I see the survey plan, and I say it is the survey plan, handed to my wife.”
The survey plan was then tendered as Exhibit D without objection. PW5 the Surveyor called by the Appellant stated that when he prepared Exhibit N as Surveyor-General of Edo State, he was asked to show the positional relationship between Exhibit M (the Litigation Survey Plan of the Appellant at the lower court) and Exhibit D and that after the comparative study of both Exhibits, he wrote a report in Exhibit P. This same witness was to turn round in his evidence at page 35 of the Record to say that his report in Exhibit P was no longer correct. He further admitted at same page 35 lines 18 – 19 that “survey plan MWC/1275/78 does not fall on the plot where the storey building is located”.
The said plan MWC/1275/78 is Exhibit D. Yet the storey building was said to be the cause of action.
What these show is that the Appellant could not establish the land in dispute with certainty. The first duty of a Plaintiff who comes to court in an action for a declaration of title over land is to show clearly, precisely and distinctly the area and location of the land to which such declaration of title relates. This defined area and location must appear both in his pleading and his evidence in support of his case.
See OKEBULU V. ABAAH (1988) 2 NWLR (PT.77) 496 at 502.
AGBONFO V. AIWEREOBA (1988) 1 NWLR (PT. 70) 325 at 342
OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (PT. 95) 26 at 42 and BARUWA V. OGUNSHOLA (1938) 4 WACA 195. It is obvious from the foregoing evidence elicited from the Appellant in relation to the evidence of PW3, PW5 and Exhibits C and D that he did not discharge this primary duty which lay squarely on him.
The evidence proffered by the Respondents as borne out of the Record was more consistent, more credible and acceptable such that on the balance in the imaginary scale, the scale obviously tilted in their favour as found by the learned trial Chief Judge who painstakingly, adequately and properly reviewed and evaluated the entire evidence led on both sides in his Judgment. I, therefore agree with the conclusion of the trial court at page 135 of the Record that the Appellant did not prove his case. The burden lay on the Appellant and he did not discharge it.
The issue or issues raised in this case is/are hereby resolved against the Appellant in favour of the Respondents. In the premise, the Grounds of Appeal fail and consequently the appeal fails and is hereby dismissed with costs fixed at N30, 000.00 against the Appellant.
R.C. AGBO, J.C.A.: I agree.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother, Nwosu-Iheme, JCA. I also for the reasons contained in the said judgment, hold that this appeal is devoid of merit. It is hereby dismissed. I equally award the sum of Thirty Thousand Naira (N30,000=) in favour of the Respondents and against the Appellant.
Appearances
MISS J.I. OKOLIFor Appellant
AND
MISS J.I. AIGBOEGHIANFor Respondent
