ALHAJI DAHIRU GARBA & ORS v. AMOS CHIBIRI & ORS (2013)

ALHAJI DAHIRU GARBA & ORS v. AMOS CHIBIRI & ORS

(2013)LCN/6478(CA)

In The Court of Appeal of Nigeria

On Thursday, the 31st day of October, 2013

CA/K/200/2011

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI DAHIRU GARBA (District Head of Kadage)
2. ARDO DIYA GUDA
3. FULANI YAU GUDA
4. WALI GUDA
5. WAKILI DANDUME BATE Appellant(s)

AND

1. AMOS CHIBIRI
2. TANIMU DANGO
3. DOKA TSAPTA
4. MALLAM YAMUSA AIKI (For himself and on behalf of the family of Aiki)
5. DANLAMI MAKAMA (For himself and on behalf of the family of Shayabo) Respondent(s)

RATIO

WHETHER OR NOT ANY PERSON CLAIMING INTEREST IN LAND MUST PROVE THE EXACT LOCATION OF THE LAND HE CLAIMS

It is an age long principle that any person claiming an interest in land must prove the exact location of the land and the precise area to which his claim relates. This is the foremost and a fundamental duty on a plaintiff in a land dispute – Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt.1127) 194, Adu vs Gbadamosi (2009) 6 NWLR (Pt.1136) 110, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Achor Vs Adejoh (2010) 6 NWLR (Pt 1191) 537. Even where the identity and location of the land is not in dispute, the plaintiff must in his pleadings and evidence show an identifiable area of land to which his claim relates -Iyaji vs Eyigebe (1987) 3 NWLR (Pt 61) 523 at 529, Ofume vs Ngbeke (1994) 4 NWLR (Pt 341) 746 and Kankia vs Maigemu (2003) 6 NWLR (Pt 817) 496. Such proof of identity of land is a condition precedent sine qua non to the success of the plaintiff’s claim – Alimi Vs Obawole (1998) 6 NWLR (Pt 555) 591, Dada vs Dosunmu (2006) 18 NWLR (Pt 1010) 134, Dauda Vs Iba (2007) 2 NWLR (Pt 1018) 321.Where a plaintiff fails to plead and establish the precise area of the land to which his claim relates, whatever evidence, whether oral or documentary, he produces at the trial and however cogent and credible the evidence might appear, it cannot, in law, ground a claim of an interest in land in his favour – Jinadu Vs. Esurombi-Aro (2005) 14 NWLR (Pt.944) 142, Otanma Vs. Youdubagha (2006) 2 NWLR (Pt.964) 337 and Aigbabahi Vs. Aifuwa (2006) 6 NWLR (Pt.976) 270. PER ABIRU, J.C.A.

THE PRINCIPLES ON IDENTIFY OF LAND IN DISPUTE

In Nwokidu vs Okanu (2010) 3 NWLR (Pt 1181) 362 Adekeye, JSC summarized the principles on identity of land in dispute at pages 391 – 392 thus:
“Where a plaintiff claims declaration and injunction, the area of land in dispute must be properly identified in view of the order of injunction which cannot be granted in respect of an undefined area. Therefore, a plaintiff who claims a declaration of title must prove clearly the area of land to which his claim relates and the boundaries thereof. The land must be described with certainty so as to entitle him to an order of injunction. It is a basic step in a claim for declaration. If he failed to prove boundaries of the land he asserts to be in dispute or did not satisfactorily describe the dimension and locality or the description contradicts the plan, the proper order to make is one of dismissal. A relief of declaration of title being discretionary cannot be granted by any court when the identity of land is not clearly and unambiguously established.” PER ABIRU, J.C.A.

WHEN THE DUTY ON A CLAIMANT TO PROVE THE IDENTITY OF LAND IN DISPUTE IS SAID TO ARISE

It must, however, be stated that this duty on a claimant to prove the identity of the land in dispute, arises only where the identity of the land is in issue between the parties; where it is not in issue, the claimant has no duty to prove it – Fatunde Vs Onwoamanam (1990) 2 NWLR (Pt.132) 322, Osanyibi vs Sokenu (2001) 3 NWLR (Pt 699) 170, Charlie vs Gudi (2007) 2 NWLR (Pt 1017) 91, Maigari vs Mailafiya (2011) 1 NWLR (Pt.1228) 379, Bamikole vs Oladele (2011) 1 NWLR (Pt.1229) 483, Ayuya Vs Yonrin (2011) 10 NWLR (Pt.1254) 135. Where the area of land in dispute is well known to the parties, or where there is enough evidence for the court to infer the identity of the land, the question of proof of the identity of the land does not arise – Akinterinwa Vs Oladunjoye (2000) 6 NWLR (Pt.659) 92, Adedeji Vs Oloso (2007) 5 NWLR (Pt 1026) 133, Aremu vs Adetoro (2007) 16 NWLR (Pt.1060) 244, Nwankwo Vs Ofomata (2009) 11 NWLR (Pt 1153) 496, Udechukwu Vs Ezemuo (2009) 14 NWLR (Pt.1162) 525, Dakolo Vs Rewane-Dakolo (2011) 16 NWLR (Pt.1272) 22. In Ologunleko Vs Ikuemelo (1993) 2 NWLR (Pt.273) 16 Adio, JCA (as he then was) said at Page 24 G – H thus:
“If the faulty or inconsistent descriptions of the boundaries of the land in dispute in the amended statement of claim and in the oral evidence led by the appellant are disregarded, the relevant question is whether the land in dispute was well-known to the parties. In my view, the land in dispute was well-known to both the appellant and the respondents. It was not a virgin land. The appellant’s evidence was that the 1st respondent was building a house on it and the 1st respondent conceded that he was building a house on it.” PER ABIRU, J.C.A.

WHETHER OR NOT THE COURT IS ENTITLED TO INFER THAT PARTES KNOW A LAND WELL, WHERE PARTIES HAVE HAD PAST CONNECTIONS WITH THE LAND

It is settled law that where parties have had past connections with the land in dispute such as living or operating thereon, a court is entitled to infer that the parties must know the land so well that its features and boundaries cannot be said to be in doubt – Eboade vs Atomesin (1997) 5 NWLR (Pt 506) 590, Alkamawa vs Bello (1998) 8 NWLR (Pt 561) 173, Osho vs Ape (1998) 8 NWLR (Pt 562) 492, Udeze vs Orazulike Trading Co. Ltd (2000) 3 NWLR (Pt 648) 203, Adeyori vs Adeniran (2001) 10 NWLR (Pt.720) 151, Kankia vs Maigemu (2003) 6 NWLR (Pt.817) 496. Similarly, where the identity of the land in dispute is known to the defendant, the non-placement of the exact description of the land before the court by the claimant would not be fatal to the grant of an injunctive order. In Ekwomchi Vs Ukwu (2002) 1 NWLR (Pt.749) 590 the Court stated that from the averments of the parties it was clear that they were fully aware and certain about the extent of the land in respect of which the injunction application was based and there was therefore no difficulty about the identity of the land upon which the injunctive order was tied and that the trial court was right to have exercised its discretion in respect of such land, the identity of which from materials before it had been shown to be precise. This Court cannot, in the circumstances of this case, thus fault the judgment of the lower Court on the ground that the Respondents failed to prove the identity of the respective pieces of farm claimed. The sole issue for determination in this appeal is resolved in favour of the Respondents. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State sitting in Kafachan in Suit No KDH/KAF/60/2006 delivered by Honourable Justice L. D. Aba on the 5th of August, 2008. The action before the lower Court was commenced by the Respondents, as plaintiffs, against the Appellants, as defendants and the claims were for:
i. A declaration that the first to the third Plaintiffs are the rightful and legal owners of their various farms located at Rigiruh which they inherited from their parents.

ii. A declaration that the fourth Plaintiff and the Aiki family are the rightful and legal owners of their inherited farm located at Rigiruh.

iii. A declaration that the fifth Plaintiff and the family of Makama Shayabo are the rightful and legal owners of their inherited farm at Rigiruh village.

iv. An order that any purported sale of the Plaintiffs’ farmlands by the first Defendant to the second, third, fourth and fifth Defendants of any other person is null and void as the first Defendant has no title over the farmlands.

v. A declaration that the second, third, fourth and fifth Defendants have by their conduct forfeited the license granted to them by the Plaintiffs to settle and use the Plaintiffs’ farmlands.

vi. An order that the second, third, fourth and fifth Defendants should vacate the Plaintiffs’ farmlands in the Defendants’ possession.

vii. An order of perpetual injunction restraining the Defendants from doing any act injurious, adverse or detrimental to the Plaintiffs’ rights and interests over the disputed farmlands.

The Respondents filed an Amended Statement of Claim consisting of twenty-seven paragraphs and dated the 15th of February, 2006 in support of their claims. The Appellants did not file a defence to the claims of the Respondent. The records of appeal show that the Appellants were represented in Court by Counsel on the 29th of November, 2006 and the matter was adjourned for trial to the 15th of February, 2007 with consent of the Counsel. The records show that on the 15th of February, 2007, the Appellants were absent from Court and were not represented by Counsel without any explanation and were yet to file a statement of defence. Trial proceeded as scheduled on that day and the Respondents called four witnesses. The records show that trial continued in stops and starts on subsequent days due largely to requests for adjournment by Counsel to the Appellants. The records show that the Counsel to the Appellants was aware of all the adjourned dates of the matter. The Respondents called eight witnesses in all and they closed their case on the 21st of January, 2008 and the matter was adjourned to the 28th of February, 2008 for defence to open.

The Appellants and their Counsel were absent from Court on the 28th of February, 2008 without any explanation despite service of hearing notice on them and their defence was closed and the matter was adjourned for address. On the 10th of March, 2008, the records show that the Counsel to the Appellants was again in Court and he sought for an adjournment to file necessary processes and commence their defence and the matter was adjourned to the 28th of April, 2008 “for the very last time at the defendants’ instance”. On the 28th of April, 2008, the Appellants and their Counsel were again absent from Court without any explanation and the lower Court again closed the defence of the Appellants and the matter was set down for final address on the 3rd of June, 2008 and hearing notice was served on Counsel to the Appellants. On the 3rd of June, 2008, the Appellants and their Counsel were absent from Court without any explanation and the lower Court heard the address of Counsel to the Respondents and adjourned the matter to the 24th of June, 2008 for judgment and hearing notice was ordered to be served on the Counsel to the Appellants. Thereafter, the Appellants filed a motion on notice seeking for extension of time to file a memorandum of appearance and a statement of defence and for an order re-opening their defence to enable them lead evidence. In a considered ruling delivered on the 5th of August, 2008, the lower Court dismissed the application and it, on the same day, delivered judgment in the substantive suit and granted all the claims of the Respondents. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 18th of June, 2009 against it. The notice of appeal contained five grounds of appeal.

In compliance with the Rules of this Court, the Appellant, in arguing the appeal, filed a brief of arguments dated the 13th of May, 2011 but filed on the 27th of May 2011 and it consisted of eight pages. In response, the Respondents filed a brief of arguments dated the 24th of August, 2012 but filed on the 3rd of September, 2012. The Respondents’ brief of arguments was deemed properly filed on the 28th of February, 2013. At the hearing of the appeal on the 7th of October, 2013, Counsel to the parties relied on and adopted their respective briefs of arguments.

The Appellants formulated only issue for determination in their brief of arguments and this was:
Whether the lower Court was correct when it entered a declaratory judgment and an injunction against the Appellants when the Respondents failed to plead and prove with certainty the identity of the lands in dispute.

Counsel to the Appellants stated that the issue was distilled from grounds one, two and four of the notice of appeal. As stated earlier, the notice of appeal contained five grounds. The Appellants distilled no issue for determination from the third and fifth grounds of appeal and the law is that these grounds are deemed abandoned and they are hereby struck out – Microsoft Corporation Vs Franike Associates Ltd (2012) 3 NWLR (Pt.1287) 301 and Purification Technique (Nig) Ltd vs Jubril (2012) 18 NWLR (Pt 1331) 109.
In his brief of arguments, Counsel to the Respondents agreed that there was only one issue for determination in this appeal and that it had to do with the identity of the land in dispute but he reformulated the issue thus:
Whether the identity of the disputed farmland was in issue at the trial Court in the absence of a statement of defence?

It is obvious that the issue formulated by Counsel to the Appellants and which was reformulated by Counsel to the Respondents raise the same point, the difference being that both Counsel approached it from different perspectives.

In arguing the sole issue for determination, Counsel to the Appellants stated that it was settled law that Courts do not grant a declaratory relief and an injunction in a land matter without ascertaining with certainty the clear demarcations and boundaries of the land in dispute. Counsel stated that while the first, second and fifth Respondents pleaded the boundaries of the different pieces of land they claimed, the third and fourth Respondents did not plead the boundaries of the pieces of land they claimed. Counsel traversed through the testimonies of the eight plaintiff witnesses and stated that none of them gave evidence of the boundaries of the pieces of land claimed by the first, second and fifth Respondents in the terms of the averments on the pleadings. Counsel submitted that the net effect of this is that the averments of the boundaries of the pieces of land are deemed abandoned and he referred to the cases of Oikherhe Vs Inwanfero (1997) 7 NWLR (Pt 512) 226 and Gamboruma Vs Borno (1997) 3 NWLR (Pt 495) 530, amongst others. Counsel stated that despite these deficiencies in the case of the Respondents, the lower Court still proceeded to grant all their prayers. Counsel submitted that the lower Court was in error in acting as it did and he urged this Court to resolve the issue for determination in favour of the Appellants and to set aside the judgment of the lower Court and dismiss the claims of the Respondents.

In his response, Counsel to the Respondents stated the purpose of the action commenced before the lower Court was to recover the various farmlands of the Respondents and upon which the second to the fifth Appellants had settled from time to time with the permission of the Respondents and of the parents of the Respondents. Counsel stated that Respondents described their farmlands as located in the village called Rigiruh and the second to the fifth Appellants who lived on these farmlands cannot pretend not to know the farmlands and neither can the first Appellant claim ignorance of the identity of the farmlands as he was said to have sold the farmlands to the other Appellants. Counsel submitted that in a land matter, it was the duty of a defendant to put the identity or boundaries of land in dispute in issue in his statement of defence if he desires to contest the point and where this is not done, both parties are deemed to know the land and neither of them can be heard to raise the issue of identity of land at the appeal stage. Counsel referred to the case of Anyanwu Vs Uzowuaka (2009) All FWLR (Pt 499) 411. Counsel submitted that where the identity of the land in dispute is known to both parties, then it ceases to be an issue in the matter and he referred to Gbadamosi vs Dairo (2007) All FWLR (Pt.357) 812 and Ogedengbe vs Balogun (2007) All FWLR (Pt 366) 615. Counsel stated that Appellants did not file any pleadings in this matter and did not join issues with the Respondents on the identity of the pieces of land claimed at the trial. Counsel urged this Court to resolve the sole issue for determination in their favour.

Where a plaintiff fails to plead and establish the precise area of the land to which his claim relates, whatever evidence, whether oral or documentary, he produces at the trial and however cogent and credible the evidence might appear, it cannot, in law, ground a claim of an interest in land in his favour – Jinadu Vs. Esurombi-Aro (2005) 14 NWLR (Pt.944) 142, Otanma Vs. Youdubagha (2006) 2 NWLR (Pt.964) 337 and Aigbabahi Vs. Aifuwa (2006) 6 NWLR (Pt.976) 270. This point was well-put by Sulu Gambari, JCA in Aweni Vs. Olorunkosebi (1991) 7 NWLR (Pt.203) 336 at 355 A – F thus:
“While there are certain pieces of evidence adduced by some of the defence witnesses which can be said to support the plaintiffs/appellants’ case and there are also some evidence emanating from the witnesses of the plaintiffs/appellants to the effect or at least to establish that the plaintiffs/appellants obtained a grant of land from Aseyin Olukokun well before 1962; that the grant to the plaintiffs/appellants was made validly by the said Aseyin of Iseyin, there is still no evidence by the plaintiffs/appellants or supportive and positive pieces of evidence from the witnesses of the defendants/respondents to establish the actual location, limits and exactitude of the parcel of the land in dispute. No proper evidence of the description of the land and adequate particularities of its boundaries were given.
. . .What is involved in this case is not simply to prove that a grant of land was made to the appellants earlier than the one granted to the respondents. What is expected of the appellants is to prove by preponderance of evidence, apart from the grant so established, the exact location with convincing description and accurate delimitation of the land they are claiming to be theirs. The identity of the land must be proved with reasonable certainty. It is therefore the duty of the appellants to show clearly the limits of the land. They must show clearly the area of land to which their claim relates in order to be entitled to a declaration of title over same. If the area is not ascertained, then the claim must fail …”

In the instant matter, the case of Respondents on the pleadings, after stating that they inherited their individual farms from their respective parents, was that their parents and grandparents practiced the bush fallow system of farming whereby a used farmland is left to fallow for some years and regain its fertility before farming is resumed thereon and that during the periods the farms in dispute were left unused to enable them regain their fertility, they granted permission to the second, third, fourth and fifth Appellants, nomadic Fulani constantly on the move, to settle temporarily on the farms and that the Appellants usually moved on from the farms for the rightful owners to use same when required. It was their case that trouble started after the second to the fifth Appellants decided, as Muslims, to be answerable to the first Appellant instead of the first Respondent in whose domain the farms were situated and they thereafter started claiming to have purchased the farms from the first Appellant.

All the eight plaintiff witnesses testified in proof of these averments. The Appellants did not file any pleading to controvert these averments of the Respondents and neither did they contest the testimonies of the witnesses thereon either by way of cross-examination or by reading contrary evidence. The net effect of these is that the averments of the Respondents stood unchallenged and the Appellants were deemed to have admitted the case made against them by the Respondents – Ifeta vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt 983) 585, Okolie vs Marinbo (2006) 15 NWLR (Pt 1002) 316, Asika vs Atuanya (2008) 17 NWLR (Pt.1117) 484.

What is apparent from the case of the Respondents is that the pieces of farmland in dispute were well known to the parties. The second to the fifth Appellants had settled on the pieces of farmland in the past with the permission of the Respondents and they are presently staying thereon claiming to have purchased them from the first Appellant. It is settled law that where parties have had past connections with the land in dispute such as living or operating thereon, a court is entitled to infer that the parties must know the land so well that its features and boundaries cannot be said to be in doubt – Eboade vs Atomesin (1997) 5 NWLR (Pt 506) 590, Alkamawa vs Bello (1998) 8 NWLR (Pt 561) 173, Osho vs Ape (1998) 8 NWLR (Pt 562) 492, Udeze vs Orazulike Trading Co. Ltd (2000) 3 NWLR (Pt 648) 203, Adeyori vs Adeniran (2001) 10 NWLR (Pt.720) 151, Kankia vs Maigemu (2003) 6 NWLR (Pt.817) 496. Similarly, where the identity of the land in dispute is known to the defendant, the non-placement of the exact description of the land before the court by the claimant would not be fatal to the grant of an injunctive order. In Ekwomchi Vs Ukwu (2002) 1 NWLR (Pt.749) 590 the Court stated that from the averments of the parties it was clear that they were fully aware and certain about the extent of the land in respect of which the injunction application was based and there was therefore no difficulty about the identity of the land upon which the injunctive order was tied and that the trial court was right to have exercised its discretion in respect of such land, the identity of which from materials before it had been shown to be precise. This Court cannot, in the circumstances of this case, thus fault the judgment of the lower Court on the ground that the Respondents failed to prove the identity of the respective pieces of farm claimed. The sole issue for determination in this appeal is resolved in favour of the Respondents.

This appeal is devoid of merit and it is hereby dismissed. The judgment of the High Court of Kaduna State sitting in Kafachan in Suit No KDH/KAF/60/2006 delivered by Honourable Justice L. D. Aba on the 5th of August, 2008 is hereby affirmed. The Respondents are awarded the costs of this appeal assessed at N50,000.00. These shall be the orders of this Court.

DALHATU ADAMU, J.C.A.: I have been privileged to have read the lead judgment of my learned brother Abiru JCA in this appeal. I agree with him that the appeal is lacking in merit and should be dismissed. The judgment of High Court Kaduna State sitting in Kaduna is hereby affirmed. I abide by the order on costs made in the lead judgment.

ABDU ABOKI, J.C.A.: I have had the privilege of reading in advance the lead judgment just delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA.

I entirely agree with the reasoning and conclusion contained therein, that appeal is devoid of merit. I also accordingly dismiss it and affirm the decision of the High Court of Kaduna State in suit No. KDH/KAF/60/2006 delivered on 5th August, 2008. I too abide by the consequential orders contained in the lead judgment.

Appearances

Mr. A. T. AbubakarFor Appellant

AND

Miss P. N. AkauFor Respondent