ELDER SAMUEL EZE & ORS v. CHIEF BENEDICT OKORIE & ORS (2019)

ELDER SAMUEL EZE & ORS v. CHIEF BENEDICT OKORIE & ORS

(2019)LCN/13860(CA)

In The Court of Appeal of Nigeria

On Friday, the 8th day of March, 2019

CA/E/611/2014

RATIO

WHEN ISSUES ARE JOINED ON PLEADINGS, WHAT IS THE NEXT STEP?

It is trite law that where a case is brought before the Court by pleadings and issues are joined on the pleadings filed by both parties, issues must be tried as settled in the pleadings. See WIRI & ORS. V. WUCHE & ORS (1980) LPELR ? 3498 (SC) AT 18 (A). It is also trite that parties and the trial Court are strictly bound by the pleadings and the issues raised by the parties in their pleadings. Their case succeeds or fails on the basis of the pleadings and the evidence led. See ETIM V. CLASEN VENTURES & ORS (2011) LPELR-3827 (CA) AT 18-19 (G-D). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

LAND LAW: TO DISCHARGE THE BURDEN ON A PLAINTIFF, THE PLAINTIFF OUGHT TO HAVE PLEADED THE NAME OF THE FOUNDER OF THE LAND

I agree, hook line and sinker with learned defendants counsel that to discharge the burden, the plaintiffs ought to have pleaded the names of the founder of the land and those after him on whom the lands devolved or was enjoyed up to the last successor and lead evidence in support thereof without leaving gaps or creating mysterious or embarrassing linkages which have not and cannot be explained. See the case of Eze vs Atasie (2000)10 NWLR (PT.676)470 at 478-488 where the Supreme Court held that the plaintiff who fails to plead and establish by evidence those facts will fail. The plaintiffs failure in this case to plead the genealogical history of the enjoyment of the parcels of land in dispute up to the point when, owing to the incessant fighting?s between the great grandfather of the parties, the said Aja Osi, one of the plaintiffs? great grandfathers, was forced to run and take refuge at Obinagu where he died and was buried, as well as their failure to lead evidence in that direction is fatal to their case and this is the albatross that knocked the bottom of their claim on this issue. This Court is, therefore inclined to see eye to eye with the learned defendants? counsel that the only basis for the plaintiffs? claim to title is the fact of their relationship with the defendants. To my mind, having regard to the evidence before this Court the plaintiffs have failed to prove their case in respect of the 2nd issue on the preponderance of evidence as required by law. See S. 135 of the Evidence Act 2011; AMADI VS ORISAKWE (2005)7 NWLR (PT.924) 385. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHAT A PARTY CLAIMING TITLE TO LAND BY INHERITANCE MUST PROVE

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

1. ELDER SAMUEL EZE
2. LAWERENCE CHIJIOKE NWANJI
3. PAUL EZE
4. UDE NWANJI
(For themselves and on behalf of Umuokoronkwo Osi of Umuegwu family of Umuele-Uba kindred of Imuhuebe Amaeze, Ishiagu in Ivo L.G.A. of Ebonyi State) Appellant(s)

AND

1. CHIEF BENEDICT OKORIE
2. UDE NGWOKE
3. DAMIAN ORJI
4. UDE OKORIE
5. SUNDAY NGWOKE
6. OGBONNAYA OKORIE
7. AMAMUCHE OKORIE
(For themselves and on behalf of the Nwoke Agu Nwoke of Umuegwu family of Amaogbu Umuele-Uba kindred of Imuhuebe,Amaeze Ishiagu in Ivo L.G.A. of Ebonyi State) Respondent(s)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.(Delivering the Leading Judgment): The appellants instituted suit no. HSK/17/2010 at the High Court of Ebonyi State and claimed the following declarations against the respondents:
a. A declaration of the Honourable Court that the plaintiffs and the defendants, as descendants of one common great grand ancestor, are equally entitled to the same Customary Right of Occupancy and use of the following parcels of land situate at:
(1)?Onuobu/Amaukwachi (2) Iyieda (3) Ubegu Amoyi (4) Ogwunte (5) Eguachi (6) Iyiebe (7) Oyiotu (8) Azuogo (9) Ebonta (10) Ihuegwu/Ogbu and the lands along the following streams (11) Nkwa (12) Okpurukpu (13) Owaegu (14) Obuke (15) Mpomuokpukpu (16) Uzohu (17) Iyioma/Ozizenro (18) Nyavuru (19) Isi-Eluelu (20) Ngada (21) Eligoro Ngada Uzo Amaorji (22) Ogidieze (23) Okee, Miniocha and Gburugburu, (24) Ugwueziatork, Oviale, Iyiechara Ngada and the shrine called Egwu-Umuegwu, Ishiagu in Ivo L.G.A. within the jurisdiction of the Honourable Court.
b. A declaration that the defendants alone cannot sell, mortgage, lease, enter into any contract in respect of the above lands, assign or deal with any or all the lands, without the active participation, consent or approval of the plaintiffs in matters affecting the above-mentioned lands and the ?EGWU UMUEGWU? shrines jointly owned and inherited from their common ancestor, Agwu.
c. A declaration of the Honourable Court that both the plaintiffs and defendants are equally entitled to the exercise of maximum rights of possession and ownership in respect of the said lands and the ancestral shrine called Egwu.
d. A perpetual injunction restraining the defendants, by themselves, their agents, workmen, privies and assigns from further entering and making use of the said parcels of land, leasing, mortgaging, selling, assigning or entering into any contracts for quarry and/or mining operations with any person or persons, or granting farming leases to farmers until the determination of this matter by the Honourable Court.?

The appellants? case as pleaded in paragraphs 1-6 of their statement of claim is that both parties are members of Umuegwu family in Umuele-Uba kindred, Imuhuebe, Amaeze, Ishiagu in Ivo Local Government Area of Ebonyi State and were sharing and enjoying landed properties and worshipping the Egwu Umuegwu shrines in common until a serious misunderstanding arose between the grandfathers of the plaintiffs and the defendants which resulted to a serious fight between them. The constant fighting and quarrelling made some of the grandfathers of the plaintiffs to take refuge and settled at Obinagu. They stated that this action was instituted because of the complete denial by the defendants of the paternal family relationship, the joint ownership of landed properties and the Egwu Umuegwu shrines with the plaintiffs which properties are jointly owned by the two parties by virtue of their common customary inheritance, having descended from one great grand ancestor by name, Agwu who married two wives that gave birth to various grandfathers of the parties.

The respondents? case is that they are from Amaogbu family in Umuele ? Uba kindred of Imuhuebe in Amaeze-Ishiagu community in Ivo Local Government Area of Ebonyi State and they do not know any family called Umuegwu family in Umuele-Uba kindred or have any joint ownership or common ancestry with the plaintiffs. They stated that their own ancestors founded their own pieces of land included in the large expanse of land called ?Ugwueziafor or Eziator land? so many years or decades ago and the ownership of the said land devolved down to the defendants through inheritance. The ownership of the land also comprise of the respondents and twelve (12) other landlords families and they have always exercised many acts of possession and ownership over the said lands to the exclusion of the plaintiffs or any other family. According to the respondents, the generation of the plaintiffs came from Ndiokereke Obinagu Ishiagu and their great grandfather is known as Osiama who gave birth to three (3) children namely: Ajahaloke Osiama, Kalu Osiama and Okoronkwo Osiama. Okoronkwo Osiama left Obinagu and sojourned at Amaeze ? Ishiagu and settled there. It was Ojukwu Onu (one of the great grandfathers of the respondents who gave Okoronkwo a portion of land to settle and he settled and begot Ajah Okoronkwo Osiama and Eze Okoronkwo Osiama. They pleaded the genealogical tree of the appellants.

The appellants called four (4) witnesses in support of their case and tendered documents which were admitted as exhibits. The respondents also called four (4) witnesses. Counsel to both parties filed and adopted written addresses. In its considered judgment delivered by Honourable Justice V.N Nwachor on 5/5/2014, the Court below granted only a declaration that the appellants and the repondents are descendants of one common great grand ancestor and are members of Umuegwu also called Amaogbu family of Umuele-Uba kindred in Imuhuebe Amaeze, Ishiagu community in Ivo L.G.A of Ebonyi State and dismissed all other reliefs.

The appellants were dissatisfied with the judgment. They filed a notice of appeal on 13/10/14. The notice of appeal was deemed properly filed and served on 13/3/2018 with effect from 13/10/14 pursuant to the motion for extension of time to appeal filed by the appellants on 7/3/18 and granted on 13/3/18. The record of appeal transmitted to this Court on 4/12/14 was deemed as properly transmitted on that day. The three grounds of appeal in the notice of appeal without their particulars are as follows:
GROUND 1 ERROR IN LAW
The learned trial judge erred in law and thereby came to a wrong decision which occasioned a miscarriage of justice when he held that the plaintiffs/appellants failed to discharge the burden of proof required of them for declaration of title.
GROUND 2 MISDIRECTION
The learned trial judge misdirected himself and thereby came to a wrong decision which occasioned a miscarriage of justice when he held that:
?to discharge the burden, the plaintiffs ought to have pleaded the name(s) of the founder of the lands and those after him whom the lands devolved or was enjoyed up to the last successor and lead evidence in support thereof without leaving gaps or creating mysterious or embarrassing linkages which have not and cannot be explained.?
GROUND 3 OMNIBUS GROUND
The judgment is against the weight of evidence.?

Parties filed and exchanged briefs of argument. The appellants? brief was filed on 12/6/15 and deemed as properly filed and served on 6/12/17. The respondents? brief was filed on 4/1/2018. The notice of preliminary objection incorporated in the respondents? brief was withdrawn and struck out on 13/3/2018.

The appellants formulated the following two issues for determination:

1.Whether the findings of fact made by the lower Court which necessitated the resolution of the first issue in favour of the appellants was not sufficient to grant the appellants the reliefs being sought by them in this suit (Ground 1).
2. Whether the 2nd issue was not solely dependent on the success or failure of the first issue (Grounds 2&3).?

The respondents formulated the following issues for determination:
1. ?Whether the learned trial judge was right when he held that the appellants failed to discharge the burden of proof placed upon them for declaration of title- Ground one of the Notice of Appeal.
2. Whether the learned trial judge was right when he dismissed the appellants? claim upon the premises that the appellants ought to have pleaded the names of the founder of the land and those after him upon whom the land devolved up to the last successor and lead evidence thereon without leaving gaps or mysterious linkages which cannot be explained. Ground Two of the Notice of Appeal.?

I have compared the issues formulated by counsel to both parties. I find the issue formulated by the respondents apt for the determination of this appeal. The two issues shall be considered together as they are interwoven.

The learned appellants? counsel submitted that the cardinal claim of the appellants as contained in paragraph 10(a) of their statement of claim is that both the appellants and respondents are descendants of one common great grand ancestor. Therefore, the appellants are also entitled to the same customary right of occupancy and use of the lands enumerated in the said paragraph of the statement of claim. It is the contention of the appellants? counsel that the Court misdirected itself when it held that the plaintiffs had the burden to plead and establish who found the land, how he found the land and the particulars of intervening owners through whom they claim because the law that a party who rely on traditional history as his root of title must plead and prove those facts is not applicable in this case once the Court found that the parties are of one common grand ancestor and are brothers of Umuegwu also called Amaogbu family of Umuele ? Uba Kindred. He submitted that the application of the settled principle of law governing proof of traditional history in land matters to this case is a gross violation/negation of the age long principle of law that fact admitted need no further proof, a wrongful fragmentation of traditional history and a wrongful placement of burden of proof on the appellants instead of the respondents. On the principle that facts admitted need no further proof, he referred to AYOKE V BELLO (1992)10 NWLR (PT.218) 380 (2), MAKANJUOLA V. BALOGUN (1989) 3 NWLR (PT.108) 192 SC. Section 122 (2)(b) of the Evidence Act, 2011. On wrong fragmentation of traditional history, he referred to MORENIKEJI V. ADEGBOSIN (2003) 8 NWLR (PT.823) 612 AT 635. OYELAKIN BALOGUN & ORS.V. OLADOSUN AKANJI & ORS. (1988) NWLR (PT.70) 301. On wrongful placement of burden of proof on the appellants, he referred to Section 132(2) of the Evidence Act. ALAO V. KURE (2000) FWLR (PT.6) 889. JINADU & ORS. V. ESUROMBI & ANOR (2005) 14 NWLR (PT.944) 142 AT 180-181. ARUM & ANOR V. NWOBODO (2004)9 NWLR (PT.878) 411 AT 456-457. TEWOGBADE V. AKANDE (1968) NWLR 404 AT 408. Counsel finally submitted that the appellants having successfully established their blood relationship with the respondents, there was no further need to prove who found the lands in dispute and how he found the land. He urged the Court to activate its power under Section 15 of the Court of Appeal Act to evaluate the facts found by the trial Court and grant all the reliefs sought by the appellants.

In his response to the above arguments of the appellants? counsel, the respondents? counsel referred to the first relief sought by the appellants. He submitted that the other reliefs are predicated on the first relief and the first consist of two parts to wit: (1) that the appellants and the respondents are descendants of one great ancestor. (2) That by virtue of the relationship, the appellants are entitled to the right of occupancy over the lands in dispute. He submitted that it is obvious from the first relief that title to land is in issue. He further submitted that it is settled law that there are five ways of proving title to land and the fact of being related to a person is not one of the ways or means of proving title to land. It is submitted that the law is trite that the burden of proof rests squarely on a party claiming title to land and he can only succeed by clearly ascertaining the identity of the land in dispute and its boundaries with precision, plead and prove any of the five established ways of proving title to land. It is the contention of the respondents that the appellants completely failed to identify the various lands in dispute and their boundaries with any form of precision and plead or prove any of the five ways of proving ownership. He referred to OKWARANONOBI V. MBADUGHA (2013) 17 NWLR (PT.1383) AT 278-279. He submitted that the appellants having failed to prove who found the lands in dispute, how he found the lands, the intervening owners and the names of their fathers from whom they inherited the lands, their case was bound to fail. He referred to EZE V. ATASIE (2000) 10 NWLR (PT.676) 470 AT 478-488. He urged the Court to dismiss the appeal for lacking in merit.

RESOLUTION:
It is trite law that where a case is brought before the Court by pleadings and issues are joined on the pleadings filed by both parties, issues must be tried as settled in the pleadings. See WIRI & ORS. V. WUCHE & ORS (1980) LPELR ? 3498 (SC) AT 18 (A). It is also trite that parties and the trial Court are strictly bound by the pleadings and the issues raised by the parties in their pleadings. Their case succeeds or fails on the basis of the pleadings and the evidence led. See ETIM V. CLASEN VENTURES & ORS (2011) LPELR-3827 (CA) AT 18-19 (G-D).

I have perused the entire pleadings of both parties including the appellants? reply to statement of defence, there is no doubt that two distinct issues were joined by the parties on their pleadings. Those issues are (1) the relationship between the parties (2) the right of the appellants to joint ownership of the various lands listed in paragraph 10 (a) of their statement of claim. It was in realization of the fact that issues were joined on family relationship between the parties and ownership of the lands in dispute that the appellants formulated the following two issues for determination in their final address:
1. ?Could it be said from the totality of the evidence available that the plaintiffs did not prove their relationship with the defendants.
2. If the answer is in the negative, could it be said that the plaintiff are not equally entitled to the enjoyment of the parcels of land in dispute considering the fact that the parcels of land were inherited from their ancestral fathers and same parcels of land having not been partitioned.?

The Court below adopted the issues formulated by the appellants though couched slightly different as follows:
1. Whether, in the light of the totality of the evidence led by parties in this case the plaintiffs have proved their relationship with the defendants as to be entitled to the enjoyment of the parcels of land in dispute.
2. Whether the plaintiffs are entitled to the reliefs sought in this suit.?

The Court below resolved issue 1 in favour of the appellants. The grouse of the appellants is that issue 1 having been resolved in favour of the appellants, the Court below ought to have granted all other reliefs including the relief that they are entitled to the same customary right of occupancy and use of the lands in dispute. The Court below considered the pleadings of both parties and the evidence led on the ownership or title of the lands in dispute. The Court at pages 300-301 of the record held as follows:

The plaintiffs? averment at paragraph 6 of the statement of claim only that ?the plaintiffs? and defendants? ancestors were one and the same people from the same ancestry who founded the large expanse of land called ?Ugwu-Eziafor and other lands?.? Without more is not enough to discharge the standard of proof required to establish title by traditional history. The burden of proof rests squarely on a party claiming declaration of title to land, which burden the plaintiffs have failed to discharge.
I agree, hook line and sinker with learned defendants? counsel that to discharge the burden, the plaintiffs ought to have pleaded the names of the founder of the land and those after him on whom the lands devolved or was enjoyed up to the last successor and lead evidence in support thereof without leaving gaps or creating mysterious or embarrassing linkages which have not and cannot be explained. See the case of Eze vs Atasie (2000)10 NWLR (PT.676)470 at 478-488 where the Supreme Court held that the plaintiff who fails to plead and establish by evidence those facts will fail. The plaintiffs failure in this case to plead the genealogical history of the enjoyment of the parcels of land in dispute up to the point when, owing to the incessant fighting?s between the great grandfather of the parties, the said Aja Osi, one of the plaintiffs? great grandfathers, was forced to run and take refuge at Obinagu where he died and was buried, as well as their failure to lead evidence in that direction is fatal to their case and this is the albatross that knocked the bottom of their claim on this issue. This Court is, therefore inclined to see eye to eye with the learned defendants? counsel that the only basis for the plaintiffs? claim to title is the fact of their relationship with the defendants. To my mind, having regard to the evidence before this Court the plaintiffs have failed to prove their case in respect of the 2nd issue on the preponderance of evidence as required by law. See S. 135 of the Evidence Act 2011; AMADI VS ORISAKWE (2005)7 NWLR (PT.924) 385. Put more succinctly, the 2nd issue be and is hereby resolved in favour of the defendants.?

It is clear on the state of the pleadings, that parties joined issue on the title to the land in dispute. It is trite that it is incumbent on a party claiming title to land to plead and prove his title to the land he is claiming and he must succeed on the strength of his own case and not on the weakness of the defendant?s case. The appellants averred in paragraph 3 of the statement of claim that:
3. The subject matter of this suit is the complete denial by the defendants of the paternal family relationship and the joint ownership of landed properties and the Egwu Umuegwu shrines with the plaintiffs of properties jointly owned by the two parties by virtue of their common customary inheritance, having descended from one great grand ancestor by name, Agwu who married two wives that gave birth to various grandfathers.

In their reply to statement of defence, the appellants stated that:
?The plaintiffs aver that paragraphs 4 and 5 of the statement of defence are false. The true position is that the plaintiffs and the defendant are having common ancestry and joint ownership of properties. They are descendants of one enlarged family that had been sharing and enjoying landed properties and worshipping the Egwu Umuegwu shrine in common until a serious misunderstanding ensued between their great grandfathers.
6.In answer or reply to paragraph 10 of the statement of defence, the plaintiffs averred that the plaintiffs? and defendants? ancestors were one and the same people from the same ancestry who founded the large expanse of land called ?Ugwu Eziator or Eziator and the other lands listed in our statement of claim.?

It is clear from the above highlighted pleadings that the appellants relied on traditional history and inheritance. The Supreme Court and this Court following the doctrine of stare decisis have stated in a plethora of authorities that a party claiming title to land by inheritance must plead facts relating to the founding of the land in dispute, the person(s) who found the land and exercised original acts of possession and the intervening owners through who the land has devolved from the original founder to the present owner. See IROAGBARA V. UFOMADU (2009) LPELR-1538 (SC) AT 15 (C-E). IKPAMAKU V. MAKOLOMI (2011) LPELR-4513 (CA) AT 21-22 (G-C). OLOWO V. KWARA STATE INVESTMENT AND DEV. COY. (2012) LPELR-19675 (CA) AT 16 (A-E). EZE V. ATASIE (SUPRA). In other words, the law is sacrosanct that it is the duty of a plaintiff seeking a declaration of title based on inheritance to prove not only that he or his ancestors inherited the land, he must also plead and prove how his ancestors acquired the land. See OSAGIEDE V. UWABOR (2014) LPELR-22664 (CA). The learned counsel for the appellants did not appreciate the fact that the parties may have descended from one common ancestor, but that fact without more is not a proof that the lands in dispute were found by the common ancestor of both parties. In law, the appellants still had a duty to plead and prove the name of their common ancestor, how he found each of the 24 pieces of land and how the lands have devolved from generation to generation to the present generation of the parties. The fact that the parties had a common ancestor does not automatically mean that the ancestor owned all the pieces of land being claimed by the appellants especially when the respondents claimed that twelve other families own part of the lands in dispute and that some of the lands being claimed by the appellants as family lands are individually owned by the defendants and not even collectively by the defendants. The Court below clearly appreciated and understood the principles of law governing proof of title to land by inheritance and rightly applied same.
The appellants counsel contended that the principle governing proof of title by traditional history and inheritance is not applicable to this case because facts admitted need no further proof. It is an elementary principle of law that declaration of title to land is not granted on admission by parties. The plaintiff must lead cogent and credible evidence to satisfy the Court that he is entitled to the declaration of title to land. See OLISA V. ASOJO (2001) LPELR-7035 (CA) AT 19 (D-G). AIYEOLA V. PEDRO (2014) LPELR-22915 (SC) AT 38-39 (D-A). The contention of the appellants? counsel that the appellants having proved that they descended from the same great grand ancestors with the respondents, a fact which according to him was admitted by the respondents, the Court below ought not to have required further proof of title to the lands in dispute because it has no support in law. The learned appellant?s counsel obviously misinterpreted the pronouncement of Oputa J.S.C in OYELAKIN BALOGUN & ORS.V. OLADOSUN AKANJI & ORS. (Supra),1988 LPELR-720(SC) AT 40-41 (F-E) where his Lordship stated thus:
“I repeat once more that the opinion held by many of our trial Courts that in every land case where title is in issue the dictum of the Full Court per WEBBER, J. IN EKPO V. ITA SUPRA (that the onus is on the plaintiffs claiming a decree of declaration of title to land to prove acts of possession and/or ownership, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners) applies, is erroneous. That dictum will only apply where the Plaintiff’s root of title is Acts of Possession. It will not apply where the root of title pleaded is Sale and Conveyance nor will it apply where the root of title, pleaded and relied upon is Traditional Evidence (as in this case). In either case acts of possession may be exercised subsequently and consequentially to the primary root of title relied upon. In such cases once, and where, the primary root of title had been successfully established, the Plaintiff wins and there will be no further need to probe his acts of possession. One does not lose title to land which he bought and which was properly conveyed to him because he has not shown numerous and positive acts of possession in addition. No. That is not the law: MUMUNI ABUDULAI V RAMOTU MANUE (1945) 10 W.A.C.A.172 AND MOSELEWA THOMAS V. PRESTON HOLDER (1946) 12 W.A.C.A.78.”
The above pronouncement merely re-stated the principle that where a party pleads and prove his root of title, he needs not go further to prove acts of possession. That is so because the law ascribes possession to one who proves a better title. Thus, where a party pleads and proof traditional history as his root of title, he needs not prove acts of possession. A party can only rely on acts of possession and/or ownership, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners where he pleads same as his primary root of title. The case is not an authority for the proposition that once a party establishes ties with a particular ancestor or progenitor, he is entitled to a declaration of joint ownership of a land allegedly owned by the ancestor without pleading and proving how the ancestor acquired or found the land and how the land has devolved from generation to generation. The primary root of title pleaded by the appellants is traditional history which they failed to prove as required by law.
Though the first relief was couched in a manner that makes it appear as merely seeking a declaration of membership of a family, the Court below saw through the trick and rightly came to the conclusion that title to land was hidden therein.
I have perused the entire pleadings of both parties and the evidence led. I agree entirely with the Court below that the appellants had the initial burden to prove their title to the lands in dispute and they failed to discharge that burden. Therefore, the burden of proof did not shift on the respondents. The Court below was right in refusing to grant that part of the first relief and other reliefs bordering on title to land.

In conclusion, this appeal fails. It is hereby dismissed. The judgment of the High Court of Ebonyi State delivered in suit no. HSK/17A/201 Coram: V. N. NWANCHOR J. on 5/5/2014 is hereby affirmed. There shall be N50,000:00 costs in favour of the respondents.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA. I adopt same with a little re-enforcement as follows:
The case of Ekpo v. Ita (cited in the lead judgment) lists out the different types of title that could be proved in a Case of “claim for declaration of title to land”. These are title acquired by:
1. Acts of possession.
2. Sale and Conveyance
3. Traditional Evidence.
Each of these means must be successfully established before the Plaintiff can have a declaration of title made in his favour.
The basic and fundamental principle of law dictates that title is only ascribed to the party which established a better ownership.
By the provisions of Section 135 of the Evidence Act 2011 as demonstrated in the case of AMADI VS ORISAKWE (2005) 7 NWLR PT 924 P 385, title to land can only be established on adduction of a preponderance of evidence of all the principles set out for a declaration for title. Ownership by association has never been listed as one of the ways for establishing title to land.
It is rather preposterous to argue in a suit for a declaration of title to land that facts admitted need no further proof. As rightly Stated in the lead Judgment,
“it is an elementary principle of law that declaration of title to land is not granted on admission by parties.”
The contention of the Appellant that their shared ancestral lineage is sufficient evidence of their ownership of 2 land of multiple occupation and ownership is wishful and without a legal basis. The learned trial Court was right to reject the claim.
This appeal has no merit and is hereby dismissed.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Misitura Omodere Bolaji-Yusuff, JCA just delivered.

However, in delivering my opinion on the lead judgment of my learned brother, I wish to add that the law has been long settled that the burden of proof in a claim for declaration of title to land lies on the plaintiff, who generally must rely on the strength of his own case and not on the weakness of the defendant’s case. See WOLUCHEM V. GUDI (1981) SC 291, PIARO V. TENALO (1976) 12 SC 31.

In this case, the Appellants who were plaintiffs at the trial Court had the burden to prove that they were entitled to the declaration which they sought and they were required to discharge this burden of proof on preponderance of evidence. The Appellants failed to surmount this hurdle and as rightly observed by my learned brother in his lead judgment, a person claiming title to land by pleading traditional evidence has a duty to proffer the testimony that would preponderate over the opposing party’s story. It is notorious that a land case of this nature which has historical evolution or antecedents in the history of the founding fathers and eventual acquisition of land and exercise of maximum ownerships is heavily dependent on the facts of the case rooted in history.
I also agree with the erudite finding of the trial Court that the Appellants had the initial burden to prove their tittle to the land in dispute and they failed to discharge that burden and for the above reasons and of course the detailed ones adumbrated in the lead judgment, I too, therefore, find no merit in this appeal and I accordingly dismiss same. The judgment of the trial Court is hereby affirmed. I abide myself consequential orders.

Appearances:

Mrs. C. E. Obiesie with her, I. C. Ugwu (Mrs.)
For Appellant(s)

Betram FaotuFor Respondent(s)