ABIDAN SAMUEL v. YAHAYA WAZIRI & ORS
(2016)LCN/8108(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of January, 2016
CA/J/182/2012
RATIO
EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROVING TITLE TO LAND AND WHAT THE CLAIMANT IS REQUIRED TO PROVE IN ORDER TO SUCCEED IN AN ACTION FOR DECLARATION OF TITLE TO LAND
In Kazeem & Anor. v. Mosaku & Ors (2007) 17 NWLR Pt. 1064) 523 it was held that the law is loud and clear that the burden of proof of title to land is on the Plaintiff and he must discharge that burden to obtain Judgment. Therefore in an action for declaration of title to land, what the claimant was required to prove in order to succeed, are:
- To ascertain the identity of the land to which his claim relates and prove it,
Second, He must plead and establish the root of his title.
LAND LAW: PROOF OF IDENTITY OF THE LAND; WHAT THE PLAINTIFF MUST PLEAD AND PROVE IN THE PROOF OF IDENTITY OF THE LAND AND THE IMPORTANCE OF THE PROOF OF IDENTITY OF THE LAND IN AN ACTION FOR DECLARATION OF TITLE TO LAND
As regards the issues of the proof of the identity of the land in question, the Apex Court in Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 held that: The plaintiff must first and foremost plead and prove clearly the area of the land to which his claim relates and boundaries thereof and if the location and size of the land is in issue, the Plaintiff must prove the exact location and the area being claimed. The Supreme Court also held in Adodomosi V. Dairo (2007) 3 NWLR (Pt. 10250 282, 300 that: The issue of the identity of the land in an action for declaration of title to land is very fundamental. The Onus is on the Plaintiff seeking the declaration to establish the precise identity of the led he is seeking the declaration. See for example Ezukwu Vs. Ukachukwu (2004) 17 NWLR (Pt. 009) 227; Iorde V.Ihyambe (2000) 15 NWLR (Pt. 692) 675. But where the area of land in dispute is well known to the parties, the question of proof of the identity of the land does not arise. In such a situation it cannot be contended that the area claimed of the land in dispute us certain. See Akinterinwa V. Oladunjoye (200) 6 NWLR (Pt. 659) 92. It must be emphasized in an action where the Plaintiff claims a declaration of title to land and fails to give exact extent and identity of the land he is claiming. His action should be dismissed. See Rufa v. Rickerts 2 WACA 95 Udofia V. Alfia. See also Arase V. Asanlu (1980) 5-7 SC 78? per Musdsdapher, JSC (as he then was). Proof of the identity of the land claimed as has been held, is a condition precedent to a declaration of title which must be as to identity and location. Thus the mere mention of name or that the parties know the extent of the large area of land is not enough. See: Bokotola V. Akwakoro (2001) Vol. 5 in JSC 17; Ekpemupolo v. Edremodo (2009) 8 NWLR Pt. 1142) 166 (SC).The Identity of the land in dispute can be proved either by oral evidence describing with certainty and accuracy, the parcel of land involved in a manner that will guide the Surveyor in producing, a plan of the said land. The identity and extent of the land in dispute can also be proved by the claimant filing a survey plan reflecting on the features on the land showing clearly he boundaries. See Ezukwu V. Chukwu (2004) 17 NWLR (Pt. 902) 227. See further Atanda Vs. Iliasu (2013) 6 NEWLR (Pt. 1351 529, 549 paras 3 – 9 where the Apex Court, per Ogunbuyi, JSC held thus:- “The general principle of law governing the claim of title to land is title and as laid down in plethora of decided authorities. In other words, for a plaintiff to succeed in an action for declaration of title to land, the onus of proof lies on him to establish with certainty and precision the identity of the area of land to which he lays claim. The plaintiff is herewith saddled with the responsibility of proving by evidence and otherwise, as well as also describing with such degree of accuracy and aptitude, that the identity of the area of land in respect of which he seeks it title, is I fact, not in any doubt. The following authorities are relevant wherewith the identity is in question. Emy J. Bila Auta V. CiefIbe cited (supra); Emmanuel Iloma V. Sunday Idakwo & Ors.(2003) 11 NWLR (Pt. 830) 53; Jinatu Ajao and Ors V. Bello Adigun (1993) 3 NWLR (Pt. 289 and Simon Ojiako V.Obiawuchi Ewuru & Ors (1995) 12 SCNJ 79, (1995) 9 NWLR (Pt. 420. It is elementary to state therefore that the certainty of the identity of land in dispute is sine quo non a necessity as it was held in the case of Wahab Maberi V. Chief Oyeniyi Alade (1987) 4 SCNJ 102, (1987) 2 NWLR Pt. 55) 101. It is also trite that the mere mentioning of the area is not enough; the description and extent of boundaries must be proved with exactitude. See the case of Ijama Otika Odiche V. Ogah Chibogwu (1994) 7 ? 8 SCNJ 137 at 324 ? 325, (1994) 7 NWLR (Pt. 354) 78. The test of certainty and precision is of necessity to ensure whether a surveyor can from the evidence before the trial Court produce an accurate pan of such land. See again the cases of Mark Ugbo & Ors V. Anthony Aburine (1994) 9 SCNJ 23 at 34, (1994) 8 NWLR (Pt. 360) 1 and Ahwedjo Efetireroje V. H. R. H. Okpalefe II (1991) 7 SCNJ 85 AT 95, (1991) 5 NWLR (Pt. 193) 517. See further Akulaka V. Yongo (2002) 5 NWLR (Pt. 759) 135, 166. The Onus on the Plaintiff to prove the identity or area of land claimed by him will only arise if the defendant made an issue by disputing same. See: Atanda V. Iliasu (supra); Fatunde V. Onwoamanam (1990) 2 NWLR (Pt.. 132) 3220. per. SAIDU TANKO HUSAINI, J.C.A.
EVIDENCE: DISCHARGE OF THE BURDEN OF PROOF; THE ACID TEST FOR DETERMINING WHETHER A PLAINTIFF HAS DISCHARGE THE BURDEN OF PROOF
The acid test for determination whether a plaintiff has proved the identity or area and boundaries of the land claimed by him with certainty and precision is whether from the record of proceedings of the trial Court or the evidence adduced before the trial Court a surveyor can produce an accurate survey plan of such land. See Atanda V. Iliasu (Supra). per. SAIDU TANKO HUSAINI, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
ABIDAN SAMUEL Appellant(s)
AND
1. YAHAYA WAZIRI
2. NASSIRU WAZIRI
3. IBRAHIM WAZIRI
4. SULEIMAN WAZIRI Respondent(s)
SAIDU TANKO HUSAINI, J.C.A. (Delivering the Leading Judgment): The High Court of Justice of Gombe State sitting in Gombe in the Judgment delivered on the 22/3/2010 granted all but one relief in the action instituted by the Plaintiffs now Respondents in suit No. Gm/62/2003 on the 24th July, 2003.
The plaintiffs by the Writ of Summons and Statement of claim (as amended) claimed against the defendants now Appellants, a variety of reliefs in terms of the claim at paragraph 23 of the 2nd amended statement of claim to wit:
“23. As a result of the foregoing the plaintiffs have suffered damages WHEREOF the plaintiff claims against the Defendants jointly and severally as follows:
a). A declaration that the plaintiffs are joints heirs to the estate of their deceased grandfather Waziri Yakoli therefore joint owners of the plot of land located at Todi West of the District Head of Todi palace as described in paragraph 7 above
b) A declaration that the Defendants have trespassed into the said land.
c) The sum of Two Million naira Only (M2 M), against for
Defendants jointly and severally general as damages for trespass to the land and an order for the Defendants to remove their structure (s) thereon
d) An order of perpetual injunction against the Defendants, their servants, agents and privies restraining them from committing further acts of trespass on the plaintiffs land in question.
e) The cost of this action.”
Plaintiff and defendants both elicited evidence at the trial High Court wherein at the hearing certain documents were also tendered and admitted as Exhibits.
The case of the plaintiffs on the pleadings and evidence briefly put is that they are the descendants of their common grandfather, by name Waziri Yakoli. Waziri Yakoli was said to have migrated to Todi village along with other Tangale people who once lived in their old settlement (Kufayi) at the hills of Tal, their original home. But upon their arrival at Todi village, the colonial rulers then resettled the migrants and indeed Waziri Yakoli, who by this exercise was vested with title over the land now being claimed by the Plaintiffs. Waziri Yakoli in his lifetime was said to be a
generous and benevolent person who would accommodate all manners of people who needed his assistance. One of such people who enjoyed the benevolence of Waziri Yakoli was a woman called Goni (Gwami), the wife of the 1st defendant. Accounts had it that the woman (Goni) had some misunderstanding with her husband and this led to her leaving her matrimonial home to sojourn with the Wiziri Yakoli who made a grant of land to her to build her house where she lived until her death in year 2002 or thereabout.
Upon the demise of GONI the Plaintiffs, as grandchildren of Waziri Yakoli, in exercise of what they consider is their right over what they also claim was the property of their grandfather, made attempts to reclaim the land where the house of GONI was built but met stiff resistance from the defendants who claimed that they are the owners of the land hence the Suit instituted by the Plaintiffs at the High Court.
Defendants on the other hand have maintained that they are the owners of the land and that one Mamuda was the one that gave the land to Waziri, the grandfather of the Plaintiffs.
?The trial High Court as earlier indicated, in a considered
Judgment delivered on 22nd March, 2010 found for the Plaintiffs, which is why the present appeal was lodged to this Court by the present appellant.
The Original Notice of Appeal containing 3 (three) Grounds and dated the 20th day of April, 2010 was filed against 5 (five) respondents on the 02/4/2010. However by the process deemed properly filed and served on the 30/4/2014, the Original Notice was amended to reflect the current status of the respondents.
Abidan Samuel, the only surviving defendants as at the date Judgment was delivered at the High Court has appealed to this Court on 3 (three) grounds as per the amended Notice of appeal. The grounds of appeal are:
1. The trial Court erred in law when it declared title to the land in dispute in favour of the Respondents despite the failure of the Respondents to discharge the burden of proof.
PARTICULAR OF ERRORS
a. The Respondents as plaintiffs at the trial Court claimed that the land belongs to their grandfather and that it was their grandfather that gave the land to the Appellant?s mother to stay for live.
b. The
respondents failed to establish by credible evidence their root of title as pleaded.
c. The respondents failed to establish by evidence that the land was actually borrowed to the appellant?s mother.
d. The Respondents failed to establish with certain the extent of the land claimed.
2. The trial Court erred when it found that the Appellant?s mother was a customary tenant to the grandfather of the Plaintiffs (Respondents) and that what is on the land belongs to the land.
PARTICULARS OF ERRORS
a. It is in evidence that the Appellant?s mother already settled on the land even before the Respondents? grandfather migrated to Todi.
b. It is on evidence to the contrary that it was the said Waziri (grandfather of the Respondent) that was given portion of the land by Lipra a step brother to the Appellant?s father by reason of material contradictions.
c. No evidence that the land was actually given to the Appellants mother by the Respondents? grandfather.
d. The
doctrine of qui-quid plantato solo cedit is not applicable in the circumstance of this case.
3. The decision of the trial Court is against the weight of evidence and therefore perverse and unwarranted.
2 (two) records were transmitted to this Court for the purpose of this appeal, the first being the main record was transmitted on 23/11/2013 and same deemed on 9/1/2013, the second which is the supplementary or additional record was transmitted on 2/6/2015 and deemed on 4/6/2015.
Written briefs of argument were filed and exchanged through Counsel for the respective parties. The Appellant raised 2 Issues in his brief of argument from the 3 Grounds of Appeal thus:-
1. Whether on the state of the pleadings and the evidence led at the trial, the Respondents satisfactorily discharged the burden on them to prove their title to the land claimed by them by preponderance of evidence (Arising from grounds of Appeal); and
2. Whether in the circumstances of this Suit, the trial Court was right in his finding or conclusion that the appellant?s mother was a customary tenant of the Respondents
grandfather and in applying the maxim ?what is on the land belongs to the land? to declare title in respect of the disputed land in favour of the respondents. (Arising from ground two of the Grounds of Appeal)
The respondents by their brief of argument deemed filed on the 2/7/2015 have aligned themselves to those 2 (two) issues as formulated by the Appellant for determination.
The Appeal came up for hearing on the 21/10/2015.Counsel for the Respective parties were on hand. Mr. El-Yaqub of Counsel for the Appellant after adopting his brief filed on the 30/10/2013 urged us to allow this appeal and dismiss the respondents? claim at the High Court. Mr. P. A. Aki, Counsel for the Respondents, speaking to the contrary urged us to dismiss this appeal and affirm the decision of the trial High Court. He had earlier adopted his brief of argument filed by him on the 24/6/2015 and the submissions contained therein.
I have considered all the submissions made by counsel in their respective briefs of argument and I intend to consider the 2 (two) issues formulated for determination seriatim.
?Issue No. 1 relates to the burden
imposed by law on the claimant or Plaintiff in a claim for declaration of title to land and an injunction for trespass and the question here is whether the respondents herein have discharged this duty.
The view taken by counsel for the appellant in his brief of argument is that the respondents as plaintiff at the trial Court failed to discharge this burden duty on them relative to the area the dimension and the identity of the land claimed by them, as well as failure on their part to proffer evidence of their root of title to the disputed land and by reason of which the trial Court was in error to have entered Judgment for the Respondent. Submissions made in this regard can be found at pages 6 ? 19 of the appellant?s brief of argument at paragraphs 4.1.1 ? 4.1.19. Submission made to the contrary as appear in the brief of argument for the Respondent on this issue are at pages 4 ? 16, paragraphs 4.1.1 ? 4.1.16.
?I have before now made reference to the nature of claim at the trial Court. It is a claim founded among others, on trespass to land and an injunction to restrain the appellant from further trespass. See paragraphs 23
(a) (b) (c) (d) of the 2nd amended Statement of claim at pages 29 ? 30 of the record of appeal.
Where there is a claim of trespass to land and an injunction to restrain trespass the issue of title to land becomes automatically an issue as held in several authorities including: Ogunde Vs. Ojomu (1972) 4 SC 105; MogajiVs Cadbury (Nig) Ltd. (1985) 2 NWlR (Pt.7) 393; Odukwe Vs. Ogunbiyi (1998) 8 NWLR (Pt. 561) 39; Carena V. Akinlase (2008) 14 NWLR (Pt. 1107) 262.
In this instance case on appeal, the Respondents having therefore put up their entitlement to the land in dispute, as an issue, it follows, on the state of the law, that the burden is cast on them to prove that which they assert by virtue of Sections 131, 132, and 133 of the Evidence Act, 2011. In Kazeem & Anor. v. Mosaku & Ors (2007) 17 NWLR Pt. 1064) 523 it was held that
?The law is loud and clear that the burden of proof of title to land is on the Plaintiff and he must discharge that burden to obtain Judgment.?
?Therefore in an action for declaration of title to land, what the claimant was required to prove in order to succeed, are:<br< p=””</br<
1. To ascertain the identity of the land to which his claim relates and prove it,
2. Second, He must plead and establish the root of his title.
As regards the issues of the proof of the identity of the land in question, the Apex Court in Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 held that:
?The plaintiff must first and foremost plead and prove clearly the area of the land to which his claim relates and boundaries thereof and if the location and size of the land is in issue, the Plaintiff must prove the exact location and the area being claimed
The Supreme Court also held in Adodomosi V. Dairo (2007) 3 NWLR (Pt. 10250 282, 300 that:
?The issue of the identity of the land in an action for declaration of title to land is very fundamental. The Onus is on the Plaintiff seeking the declaration to establish the precise identity of the led he is seeking the declaration. See for example Ezukwu Vs. Ukachukwu (2004) 17 NWLR (Pt. 009) 227; Iorde V.Ihyambe (2000) 15 NWLR (Pt. 692) 675. But where the area of land in dispute is well known to the parties, the question of proof of the
identity of the land does not arise. In such a situation it cannot be contended that the area claimed of the land in dispute us certain. See Akinterinwa V. Oladunjoye (200) 6 NWLR (Pt. 659) 92. It must be emphasized in an action where the Plaintiff claims a declaration of title to land and fails to give exact extent and identity of the land he is claiming. His action should be dismissed. See Rufa v. Rickerts 2 WACA 95 Udofia V. Alfia. See also Arase V. Asanlu (1980) 5-7 SC 78? per Musdsdapher, JSC (as he then was).
Proof of the identity of the land claimed as has been held, is a condition precedent to a declaration of title which must be as to identity and location. Thus the mere mention of name or that the parties know the extent of the large area of land is not enough. See: Bokotola V. Akwakoro (2001) Vol. 5 in JSC 17; Ekpemupolo v. Edremodo (2009) 8 NWLR Pt. 1142) 166 (SC).The Identity of the land in dispute can be proved either by oral evidence describing with certainty and accuracy, the parcel of land involved in a manner that will guide the Surveyor in producing, a plan of the said land. The identity and extent of the land in dispute can also be
proved by the claimant filing a survey plan reflecting on the features on the land showing clearly he boundaries. See Ezukwu V. Chukwu (2004) 17 NWLR (Pt. 902) 227. See further Atanda Vs. Iliasu (2013) 6 NEWLR (Pt. 1351 529, 549 paras 3 – 9 where the Apex Court, per Ogunbuyi, JSC held thus:-
“The general principle of law governing the claim of title to land is title and as laid down in plethora of decided authorities. In other words, for a plaintiff to succeed in an action for declaration of title to land, the onus of proof lies on him to establish with certainty and precision the identity of the area of land to which he lays claim. The plaintiff is herewith saddled with the responsibility of proving by evidence and otherwise, as well as also describing with such degree of accuracy and aptitude, that the identity of the area of land in respect of which he seeks it title, is I fact, not in any doubt. The following authorities are relevant wherewith the identity is in question. Emy J. Bila Auta V. CiefIbe cited (supra); Emmanuel Iloma V. Sunday Idakwo & Ors.(2003) 11 NWLR (Pt. 830) 53; Jinatu Ajao and Ors V. Bello Adigun (1993) 3
NWLR (Pt. 289 and Simon Ojiako V.Obiawuchi Ewuru & Ors (1995) 12 SCNJ 79, (1995) 9 NWLR (Pt. 420.
It is elementary to state therefore that the certainty of the identity of land in dispute is sine quo non a necessity as it was held in the case of Wahab Maberi V. Chief Oyeniyi Alade (1987) 4 SCNJ 102, (1987) 2 NWLR Pt. 55) 101. It is also trite that the mere mentioning of the area is not enough; the description and extent of boundaries must be proved with exactitude. See the case of Ijama Otika Odiche V. Ogah Chibogwu (1994) 7 ? 8 SCNJ 137 at 324 ? 325, (1994) 7 NWLR (Pt. 354) 78.
The test of certainty and precision is of necessity to ensure whether a surveyor can from the evidence before the trial Court produce an accurate pan of such land. See again the cases of Mark Ugbo & Ors V. Anthony Aburine (1994) 9 SCNJ 23 at 34, (1994) 8 NWLR (Pt. 360) 1 and Ahwedjo Efetireroje V. H. R. H. Okpalefe II (1991) 7 SCNJ 85 AT 95, (1991) 5 NWLR (Pt. 193) 517.?
See further Akulaka V. Yongo (2002) 5 NWLR (Pt. 759) 135, 166.
The Onus on the Plaintiff to prove the identity or area of land
claimed by him will only arise if the defendant made an issue by disputing same. See: Atanda V. Iliasu (supra); Fatunde V. Onwoamanam (1990) 2 NWLR (Pt.. 132) 3220.
At paragraph 7 of the 2nd amended statement of claim the respondents aver as follows:
“7. That the Plaintiff grandfather (Waziri) was very use (sic) to accommodating people even strangers. Some of the People he accommodated include one Yila Yorubawa who is there up to the present time. As a result of this his settlement was referred to as Gidan Gommoti meaning Government House, due to his open door policy. The land now in dispute measures about 50 x 80 x 67 x 100 metre.”
The Appellant denied same at paragraphs 2 and 3 (h) of the statement of defence and also paragraph 6(h) of the statement of defence thus:
“2. Defendants deny paragraphs 6, 7, 8, 9, 10, 11, 12, 13 15, 16, 17, 18, 19, 20, 21, 22, and 23, of the claim and will at the trial or hearing of this suit require strict proof of the averments.?
3(h). ?Defendants vehemently deny that the extend (sic) of Waziri Yakolis land, where his house is built
is 50 x 80 x 67 x 100 metre, but the boundary is there, and each and every person was exercising acts of ownership and possession like farming and borrowing of same on their own portion of land for long time.
6 (d) the defendant aver that the portion where the plaintiffs father and grandfather built their house is not part of the disputed land, but where Rhoda Waziri attempted to cultivate immediately after Goni died year 2002.”
The foregoing averments by parties on both sides in their pleadings respectively indicate that issues were joined by the parties relative to the issues of the identity of the land in question and by reason of which it is imperative that the Plaintiff (respondents) must by force of law lead evidence to establish the identity or area, the boundary or dimension of the land in dispute, its location and localization.
Witnesses who testified at the trial High Court in support of the claim include PW1, PW2, PW3, PW4, PW5 and PW6. The respective testimonies of PW1, PW2, PW4 and PW5 are indications that the said witnesses do not know the measurement or dimension or extent of the land in dispute.
I refer to pages 78, 82, 106 of the record of appeal. Pw. 3 and Pw6 on the other hand said nothing at all about the area or measurement or dimension of the land claimed, a case of abandonment of pleadings on the issue of identity of the land in dispute, there being no evidence led thereto. See: Ladunni V. Wema Bank Ltd. (2011) 4 NWLR (Pt. 1236) 44, 63; Aregbesola V. Oyinlola (20110 9 NWLR (Pt. 1253 4558, 5994. There is in addition, the question of the ascertainment boundaries of the land in dispute. It is the Plaintiff on whom lies the burden to also prove the boundaries of the land claimed by him since a Court would not grant a declaration of tile to land where the boundaries are observe and uncertain. See. Imegwu (Obi of Oboh) V. Onyemah (2009) NWLR (Pt. 63) FWLR (Pt. 138); Iorde V. Ihyambe (2001) FWLR (Pt. 31) 2881, 2887).The evidence of Pw1, at page 78 of the record, evidence of Pw3 at page 89 of the record, the evidence of Pw4 under cross-examination at page 95 and 96 of the record bring to the fore, the inexactitude, and the uncertainties which surrounds the evidence elicited through them on the extent and the boundaries of the land in dispute. But a claim
for declaration of title to land cannot succeed where the area and boundaries of the land in dispute cannot be ascertained with certainty.
?The acid test for determination whether a plaintiff has proved the identity or area and boundaries of the land claimed by him with certainty and precision is whether from the record of proceedings of the trial Court or the evidence adduced before the trial Court a surveyor can produce an accurate survey plan of such land. See Atanda V. Iliasu (Supra).
It is clear from the foregoing discourse based on evidence on the printed record of Appeal, that the Respondents as Plaintiff at the trial Court had not scaled through the first hurdle in their quest for declaration of title to the land they claim is their own; see: Odiche vs. Chibogwu (1994) 7 ? 8 SCNJ (Pt. 1) 317; Araba V. Asanlu (1980) 5 ? 7 SC 78; Oke V. Eke (1982) 12 SC 218. The trial Court nonetheless at page 162 of the printed record held:
?”It is crystal clear from the pleadings and the evidence led in the record that the parties know the subject matter of this suit that is the land in Todi. The identity of the land in dispute is
therefore not in doubt as both parties and the Court has visited the land in dispute earlier…”
I do not know the basis for the Court below coming to that conclusion as it did, given the fact that the parties, as earlier shown by their pleadings, had joined issues as regard the identity of the land in dispute, hence the duty on the respondents was to prove with exactitude, the identity of the land relative to their claim, but they failed. What then informed the conclusion that the land in dispute is known to the parties on both sides in the absence of any clear admission to that effect or such record of evidence as would lead to the conclusion that indeed the identity of the land in dispute is known to the parties on both side by reason of which the party, the plaintiff in this case, is absolved from further duty of proving the identity of the land he claims. No such record of the visit of the Court below to the locus in quo was placed before us as to suggest that by that visit, the parties consensually identified the land to which the plaintiffs? claim relate. The procedure for the conduct of Locus In quo visit is set out at
Section 127 (2) (a) (b) of the Evidence Act, Cap E 15, 2011, same provides thus:
“127(2) When an inspection of property under this section is required to be held at a place outside the courtroom, the Court shall either-
(a) Be adjourned to the place where the subject-matter of the said inspection may be and the proceedings shall continue at that place until Court further adjourns back to its original place of sitting, or to some other place of sitting; or
(b) Attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in Court afterwards, and in either case the defendant: if any, shall be present.”
There is no record of any proceedings showing that either evidence was taken at the locus during the said visit or that evidence was subsequently given in Court after the visit of what transpired at the locus. The Court below did not in any case demonstrate in its Judgment how the visit to the locus In quo resolved the dispute on the area or extent of the land claimed. The respondents in their brief of argument cited the case of
Shekse V. Plankshak & Ors. (2008) 160 LRCN 142; Briggs V. Briggs (1992) 9 LRCN 645, 653; Emigwe V. Akaiongwe (1992) 2 NWLR (Pt. 225) to submit that even though there no record of proceedings of what transpired at the locus in quo, the fact that there was a statement made by the trial Court in its Judgment of that visit to the locus would suffice.
This submission is far from what the decision referred to by them represents. A statement made by the trial Court of the visit to the locus In quo which will suffice, in absence of any record of proceedings on the visit, is such statement made in the Judgment of Court which gave accurate account of what happened during the visit to the locus In quo. In the case on hand, no such account was made by the trial Court in its Judgment as to what happened during the visit to the locus in quo. It follows therefore, that the Respondents have failed to prove with certainty and precision the identity or the area and boundaries in respect of which a declaration was sought. Where there is failure on the part of the claimant to establish the identity of the land, his claim ought to be dismissed.
Closely related with
the issue of proof of the identity of the land is the requirement of satisfactory proof of the root of title of the claimant to the land in dispute without which no order can be made for declaration of title. The term “root of title? simply connotes means or process through which a party came to be the owner of the land in dispute. See Chinyere Asika V. Henry N. Onyedike (2012) LPElR -9474 9CA); Ofume V. Ngbeke (1994) 4 NWLR (pt. 341) 746. It is thus a factual situation which the Plaintiff or claimant needed to trace and plead those facts in his claim and lead satisfactory evidence thereof. Decisions in Chief S. A. Lawal Vs. Olufowobi 7 Ors (1990) 12 SCNJ 376, 384 and a host of other cases including Olujide V. Adeagbo (1988) 2 NWLR (Pt. 25 238; Adejumo V. Anyantegbe (1989) 3 NWLR (Pt. 110) 47; Nneji V. Chukwu (1996) 12 SCNJ 388, 397, 3979,; Anabaronye V. Nwakaite (1997) 15 SCNJ 161, 168,; Ukaegbe V. Nwololo (200) 3 NWLR (Pt. 1127, 194; Nkodo Vs. Obiano (1997) 5 SCNJ 33 provide useful guide on how a claimant can plead his root of title. Thus it is held in Nneji Vs. Chukwu (Supra) at page 397 that:
?Where title is derived by grant or
inheritance, the pleadings should aver facts relating to the founding of the land in dispute the person who founded the land and exercised original acts of possession and person on whom title in respect of the land has devolved since the first founding. Those are necessary for the determination of the issue of the capacity in which the land is being held”
By dint of paragraph 4, 5, 6, 16, 19, (a) (d) of the 2nd amended statement of claim, the land in dispute was acquired by the plaintiffs/respondents grandfather as the original or first settler and which land devolved on them (the Plaintiffs) as heirs of their deceased grandfather. The matter or pleadings would have ended at that in line with the exhortations referred to in the cases cited above. However, the Plaintiffs/Respondents put a twist to their case by virtue of the averment at paragraph 1 of Plaintiff Reply to the statement of defence to the effect that the land in dispute was a grant made to Waziri, their grandfather, by the then colonial people (see page 41 of the record of Appeal). That is their pleadings. But counsel for the respondents in his brief at page 12 ? 13 made spirited
attempts to explain away those irreconcilable discrepancies in the root of title of the plaintiff/ respondents at paragraph 19 (a) of the 2nd amended statement of claim and paragraph 1 of the reply to the Statement defence. Those averments made therein are clear and unambiguous.
The Plaintiff whose claim to title to land founded on traditional history can only plead and prove one root of title and no more. See Balogun V. Akanji (1988) 1 NWLR (Pt. 70) 301. Where claimant projects two or more competing roots of title (as in this case on appeal) he does so merely to make assurance doubly sure. He does that, as abundatia cautella.
However where witnesses called by the claimant gave conflicting history of the claimant root of title such will be treated as unreliable. See Mogaji Vs Cadbury Nigeria Ltd. (page 5) 2 NWLR (pt. 7.) 393; OladoVs. Josiah (2010 18 NWLR (Pt. 1225) 653 (SC). Pw. 1 Pw2, Pw3 and Pw4 all gave conflicting history of the root of title of Waziri Yakoli, the predecessor from whom, the respondents derived their title, contrary to the respondents pleadings, refer to pages 77, 80, 83, 87, 92 and 96 of the record of appeal as to render the
claim doubtful. See Atanda V. Iliasu (supra); Onisudo Vs. Akibu (1982) 7SC 60. The trial Court in the face of those conflicting stories on the root of title ought to have rejected the entire evidence and to hold that the Respondents did not prove their root of title. See further decisions on this point in Ezemba V. Ibeneme (2004) 14 NWLR (Pt. 804) 617) 6 NWLR (Pt. 1189) 155.The conflicting stories and evidence of plaintiff/respondents witness on the root of title of the respondents cannot be resolved as the trial Court did by resort to the demeanour of those same witness, the veracity of whose evidence is in doubt. But that is what the trial Court did as appear at page 164, where it held:
“Going by the testimonies as adduced by the witnesses the testimonies of the prosecution witnesses appears to me acceptable, the witnesses were confident, they were unshaken even on cross-examination, they were confident in what they were saying. Unlike the witnesses of the defence, from their behavior before me, they were not sure of what they were saying particularly the evidence of DW1.”
No, that is not the procedure. Once there is failure on the
part of the claimant to establish his root of title owing to conflicting evidence of witnesses called by him, the trial Court should dismiss the claim as there is no duty on the defendant to prove anything where there is no counter claim. I think the matter should end at that. The trial Court ought to have dismissed the claim had proper evaluation of evidence been made by it. It is for this reason and other reasons earlier stated in this discourse that I resolve issue No.1 in favour of the Appellant.
Issue No. 2
Whether in the circumstances of this Suit, the trial Court was right in his finding or conclusion that the appellant?s mother was a customary tenant of the Respondents grandfather and in applying the maxim what is on the land belongs to the land? to declare title in respect of the disputed land in favour of the respondents.
Following my discourse in relation to issue No. 1, Issue No. 2 should fall in line hence I adopt all submissions and conclusions under issue No. 1 for Issue No. 2.
Respondents having failed to prove the identity of the land to which their claim relate and indeed their failure to establish
their root of title arising principally from the conflicting evidence of witness called by the respondents, they are not also entitled to an order of declaration of title to the land in dispute, hence the trial Court was in error to make the declaration as it did. Issue 2 is similarly resolved in favour of the appellant.
On the whole therefore, the appeal succeeds and same is allowed, hence the Judgment delivered at the Gombe State High Court between the parties herein in Suit No. Gm/62/2003 on 22nd March, 2010 is Set aside and in its place is entered this Judgment dismissing Respondents claim. Cost in the sum of N50,000.00 is assessed against the Respondents in favour of the Appellant.
That shall be the Order and Judgment.
JUMMAI HANNATU SANKEY, J.C.A.:I was privileged to read in draft the Judgment of my learned brother, Husaini, JCA. As I agree with the reasons given for allowing the Appeal, I also allow the Appeal and abide by the consequential orders made in the Judgment.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.:I have had a privilege to read a draft copy of the
judgment just delivered by my learned brother SAIDU TANKO HUSAINI, JCA., and I am in complete agreement with the reasoning and conclusions reached therein, which I hereby adopt as mine.
I have nothing more useful to add. I too allow the appeal and shall abide by the consequential orders made in the lead judgment.
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Appearances
Hassan El-Yaqub, Esq.For Appellant
AND
P. A. Aki, Esq.For Respondent
