ALHAJI YAKUBU ABDUL LATEJU v. LUBCON NIGERIA LIMITED
(2014)LCN/6926(CA)
RATIO
LAND LAW: DECLARATION OF TITLE OR RIGHT TO OWNERSHIP OF LAND
I will need at this point to bring to focus, the well settled principle of law on the grant of declaration of title or right. It has been the position of the law that in an action involving a declaration of ownership or title to land, be it entire or part ownership; the history of how the land devolved from the claimant’s ancestors or predecessors and eventually came to be owned by the claimant right from how the claimant’s predecessors initially came to possession of the land must be given in an unbroken chain. The trial Judge whose duty it is to grant the discretionary relief would have had the opportunity of hearing the claimant’s narration of the continuous chain of devolution from his ancestors with the veracity of his history tested under cross examination to equip the trial Judge exercise his discretion to grant or not to grant the declaration judicially and judiciously. See: RABIATU ADEBAYO & 3 ORS V. RASHEED SHOGO (2005) 7 NWLR (PT. 925) 467. RESSEL L.Y. DAKOLO & 2 ORS V.GREGORY REWANE – DAKOLO & 3 ORS (2011) 16 NWLR (PT.1272) 22.
Also fundamental to the grant of declaration of title to land or any other right for that matter, the Plaintiff is required by the law to satisfy the trial Court by his evidence that he is entitled to such a declaration. The discharge of the onus placed on the Plaintiff begins from his pleadings or averments on how his predecessors came in to ownership of the land and how it devolved to him before stretching out to the evidence of the Plaintiff in prove of his averments. Once the pleading of a Plaintiff is wanting on the history of ownership and its devolution, it becomes absolutely difficult for the Plaintiff to discharge the burden of proof satisfactorily. The diligence and meticulous nature of the Plaintiff’s Pleadings in an action for declaration of title cannot be over emphasized in that, in discharging his onus of proof, the Plaintiff’s action succeeds or fails solely on the strength of his case. The onus is so heavy on the Plaintiff in an action for a declaratory relief so much so that, he cannot succeed based on the:
• Weakness of the defence
• The admission in the pleadings of the Defendant
• Evasive averment such as “the defendant is not in a position to deny or admit paragraph…and will put the Plaintiff to the strictest proof thereof.
“See: MOSES OKHUAROBO & 2 ORS V. CHIEF EGHAREVBA AUGBE {2002) 9 NWLR (PT.771) 29; JASON UMESIE & 5 ORS V. HYDE EKPENYONG ONUAGULUCHI & 7 ORS (1995) 9 NWLR (PT. 421). Howbeit, let me note that, in an action for declaration of title to land or right, a Plaintiff can take advantage of evidence of the defence which supports his case. See: ONISAODU V. ELEWUJU (2006) 13 NWLR (PT.998) 517; N.B.N LTD V. T.A.S.A. LTD. (1996) 8 NWLR (PT.468) 511.
In sum, I find serious flow in the case of the Claimant who is asking for a declaration of title to land. The failure of the Claimant’s case to contain quality pleading and credible evidence of his family’s radical title to the land he claimed is fatal to his claim. See: MOGAJI V. CADBURY NIG. LTD. (1985) 2 NWLR (PT.7) 393; ELIAS V. OMOBARE (1982) 5 S.C. 25; (1982) NSCC (PT.1) 92 AT 101 – 102; OGUNLEYE V. ONI (1990) 2 NWLR (PT.135) 745, OLOHUNDE V. ADEYOJU (SUPRA); ONWUGBUFOR V. OKOYE (SUPRA); DIKE V. OKOLEODO (SUPRA) Per UCHECHUKWU ONYEMENAM, J.C.A
WHO IS THE PROPER PARTY IN AN ACTION FOR TRESPASS?
To maintain an action for trespass, the Claimant must prove that he is in actual or constructive possession and his said possession has been disturbed. Thus, to maintain an action for possession, the Claimant must have a current or running possessory title. So, an owner of land who is legally entitled to possession cannot succeed in an action for trespass until he enters possession. See: UNIVERSAL VULCANIZING (NIG.) LTD. V. IJESHA UNITED – TRADING & TRANSPORT COMPANY LTD. & ORS (1992) 11 – 12 SCNJ 243; FASORO V. BEYIOKU (1988) 2 NWLR (PT.76) 263; OSHO V. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (PT.184) 157.
The law is settled beyond peradventure that trespass is a wrong against possession. So, the proper Plaintiff in an action for trespass is the person in possession. The least possession in the Plaintiff entitles him to maintain an action for trespass unless and until the Defendant shows better title. See: AFRICAN CONTINENTAL SEAWAYS LTD V. NIGERIAN DREDGING ROADS & GENERAL WORKS LTD. (1977) 5 S.C 235; OVERSEAS CONSTRUCTION LTD V. CREEK ENT. LTD. (1985) 1 NWLR (PT. 1) 105. By this principle of law, therefore a trespasser on land can maintain an action for trespass against everyone, except the true owner. See: AJUKWARA V. IZUOJI (2002) 6 S.C (PT. 11) 116. Per UCHECHUKWU ONYEMENAM, J.C.A
