MAJOR DAUDA ELAYO (RTD) v. SAMUEL VEREGH & ORS
(2019)LCN/13879(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/MK/140/2015
RATIO
LAND LAW: DECLARATION OF TITLE OF LAND: HOW TO PROVE SAME
It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks;Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. As was submitted by the Appellant, fundamental legal prerequisites to prove title to land have been well articulated by the Courts, with a foremost authority found in the case of Idundun v. Okumagba (supra) wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land. PER ONYEKACHI AJA OTISI, J.C.A.
LAND LAW: WHEN BOTH PARTIES ADMIT THAT THE ORIGINAL TITLE IN DISPUTE BELONGS TO A PARTICULAR PERSON
It is also the settled position of the law that where both parties in a land dispute admit that the original title to the land in dispute resides in a particular person, and one of the party successfully traces his title to that person, he is entitled to be declared the owner of the land; Runsewe v Odutola (1996) 4 NWLR (PT. 441) 143, (1996) LPELR- 2964(SC). But where the original title is in dispute, the plaintiff must prove the title of the person from whom he claims. The position of the law is that once a party pleads and traces his root of title to a particular person, and that averment is challenged, he must establish how that person from who he claims his root of title came to have title invested on him. Thus, he must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land; Adesanya v Aderonmu (2000) LPELR-145(SC), (2000) 6 SC (PT 11) 18; Anukam v Anukam (2008) 1-2 SC 34; Nneji v Chukwu (1996) 10 NWLR (PT 478) 265; Odofin v Ayoola (1984) LPELR-2227(SC); Ngene v Igbo (2000) 4 NWLR (PT 651) 131, (2000) LPELR-1987(SC). PER ONYEKACHI AJA OTISI, J.C.A.
LAND LAW: DUTY OF A PERSON WHO PLEADS AND TRACES HIS ROOT OF TITLE TO A PARTICULAR PERSON
The position of the law is that once a party pleads and traces his root of title to a particular person, he must establish how that person came to have title invested on him. He must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land, more so when his title is challenged. In the case of Ogunleye v Oni (1990) 4 S.C. 130, (1990) LPELR-2342(SC), Nnamani, JSC, at pages 63 ? 64 of the E-Report, expounded:
?But it would be wrong to assume?that all a person who resorts to a grant as a method of proving title needs to do is to produce the document of grant and rest his case. Rather, whereas, depending upon the issues that emerged on the pleadings, it may suffice where the title of the grantor has been admitted, a different situation arises in a case like this where an issue has been raised as to the title of the grantor. In such a case, the origin of the grantor?s title has to be averred on the pleading and proved by evidence. This is fatal to the appellant?s case. This Court has made it clear in several decisions that if a party bases its title on a grant according to custom by a particular family or community, that party must go further to plead and prove the origin of the title of that particular person, family or community unless that title has been admitted. PER ONYEKACHI AJA OTISI, J.C.A.
LAND LAW: HOW TO DECIDE IF A PLAINTIFF HAS DISCHARGED HIS BURDEN OF PROOF
In Osafile v Odi (1994) LPELR-2784(SC) at pages 21 ? 22 of the E-Report, the Supreme Court, per Uwais, JSC (as he then was) affirmed the position of the law thus:
The next question is whether the plaintiffs had discharged the burden on them. To do so the plaintiffs were obliged, since they based their own on customary title, to give evidence of how they derived title the difficulty which the plaintiffs ran into, as pointed out by the Court of Appeal, is that they omitted in their pleadings to aver fully the facts about their root of title. In the absence of such averment they did not and indeed could not have validly adduced evidence to establish root of title. PER ONYEKACHI AJA OTISI, J.C.A.
LAND LAW: WHERE TITLE IS DELIVERED BY GRANT OR INHERITANCE
In the case of Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) 572 at p. 628 Karibi-Whyte, J.S.C. made the following remarks:
“Thus, where title is derived by grant or inheritance, the traditional history or evidence of acts of continuous exclusive possession should be given to justify the grant. See Alade v. Awo (1974) 5 S.C. InPiaro v. Tenalo & Ors (1976) 12 S.C. 31 at P. 41 this Court held that in such cases the pleading should aver facts relating to the founding of the land in dispute, the persons who founded the land and exercised original acts of possession and persons on whom the title in respect of the land was devolved since its first founding, as necessary for determination of the issue in what communal capacity the land was being held.” PER ONYEKACHI AJA OTISI, J.C.A.
LAND LAW: WHEN A PLAINIFF FAILS TO DISCHARGE HIS BURDEN OF PROVING HIS ROOT OF TITLE
A plaintiff, who fails to discharge the burden of proving his root of title to the land in dispute as pleaded by him, is not entitled to a declaration of title. He cannot fall back on long possession and acts of ownership to prove title. Title to the land must precede acceptable acts of ownership, more so in the face of challenge by the adverse party. The acts of ownership cannot stand independently. The plaintiff in the contest must first prove a valid root of title to be able to rely on acts of ownership or long possession; Owhonda v Ekpechi (2003) 9 ? 19 S.C.1, (2003) LPELR-2844(SC); Odofin v Ayoola (1984) LPELR-2227(SC); Fasoro v Beyioku (1988) LPELR-1249(SC), (1988) NWLR (PT 76) 263; Ude v Chimbo (1998) 9-10 S.C. 97, (1998) LPELR-3288(SC). Where ownership (title) is not established, acts of possession need not be considered as they would not amount to acts of ownership or possession but to acts of trespass; Okhuarobo v Aigbe (2002) 3 S.C. (PT 1) 141, (2002) LPELR-2449(SC). PER ONYEKACHI AJA OTISI, J.C.A.
LAND LAW: THE EFFECT OF FAILURE OF PLAINTIFF TO PROVE HIS ROOT OF TITLE
In a land matter, it is trite that once the plaintiff is unable to prove his root of title, the consequence is that his case stands dismissed;Ayanwale v Odusami (2011) LPELR-8143(SC); Nnadozie v Mbagwu (2008) 1 SC (PT 11) 43; Owhonda v Ekpechi (2003) 9 ? 10 SC 1. The 1st Respondent failed to prove his root of title. His case ought to have, therefore, been dismissed by the trial Court. PER ONYEKACHI AJA OTISI, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
MAJOR DAUDA ELAYO (RTD) Appellant(s)
AND
1. SAMUEL VEREGH
2. BENUE STATE URBAN DEVELOPMENT BOARD, MAKURDI
3. HON. COMMISSIONER, BENUE STATE MINISTRY OF LANDS AND SURVEY Respondent(s)
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Benue State sitting in Makurdi, Coram Hon. Justice Aondover Kaka?an, J., delivered on March 27, 2014 in Suit No MHC/292/2014 which the lower Court gave judgment in favour of the 1st Respondent.
The facts leading to the appeal, in summary, are as follows: The 1st Respondent as plaintiff before the lower Court instituted action against the Appellant, as 1st defendant and the 2nd and 3rd Respondents herein as 2nd and 3rd defendants respectively. In issue is a piece of land situate at Old Lafia Road, Angwan Godo, North Bank, Makurdi, which the 1st Respondent averred was sold to him by one Ada Jamu sometime in 1971 for the sum of Five Pounds. The transaction was conducted in the presence of named witnesses. The 1st Respondent built some structures on the said land. Sometime in 1991, he commenced the process of obtaining statutory title over the said land at the Ministry of Lands and Survey, Makurdi upon which the land was delineated with beacon numbers MK 3215, MK 3216, MK 3223 and MK 3224.
The process was stalled and recommenced by the 1st Respondent in 1995. Before completion of the process, the 1st Respondent received a letter in 2002 from the Ministry of Lands and Survey alleging that he was trespassing into another person?s property. His investigation revealed that the same piece of land had been allocated to the Appellant. He was informed that compensation would be worked out and paid to him in due course so he could relocate and leave the land for the Appellant. Upon a move to demolish his existing structure on the land built in 1971, the 1st Respondent instituted action. In his defence, the Appellant as 1st defendant denied the claim of the 1st Respondent that he had acquired the land in dispute through Ada Jamu in 1971 and further averred that the delineation of the land with beacon numbers MK 3215, MK 3216, MK 3223 and MK 3224 by the Ministry of Lands and Survey was in the process of the issue of Certificate of Occupancy No BN 634 to him in 1978, not for the process of obtaining statutory title by the 1st Respondent. That the Ministry had declined to process the 1st Respondent?s application for certificate of occupancy since the land had earlier been allocated to the Appellant. The Appellant then counterclaimed seeking, inter alia, a declaration that he was the rightful holder of the Right of Occupancy No BN 634, admitted as Exhibit H, over the land in issue, and a declaration that the 1st Respondent was a trespasser. At the conclusion of hearing, the learned trial Judge found for the 1st Respondent and dismissed the counterclaim of the Appellant. Dissatisfied with the decision of the lower Court, the Appellant lodged this appeal by Notice of Appeal filed on 6/6/2014, pages 319 ? 323 of the Record of Appeal on nine grounds of appeal.
Briefs of Argument were exchanged. The Appellant?s Brief settled by E.P. Ochuokpa, Esq., was filed on 1/12/2015. The 1st Respondent?s Brief, settled by J.T. Tilley, Esq., of I.A. Ututu & Co., was filed on 25/10/2017 but deemed properly filed and served on 23/1/2019. At the hearing of the appeal on 23/1/2019, E. P. Ochuokpa, Esq., adopted the Appellant?s Brief and urged the Court to allow the appeal. V.S. Asen, Esq., who appeared for the 1st Respondent, adopted the 1st Respondent?s Brief and urged the Court to dismiss the appeal. M. A. Agber, Esq. DPLA, Ministry of Justice, Benue State, who appeared with E.T. Nyityo, Esq. State Counsel, informed the Court that the 2nd and 3rd Respondents filed no Briefs of Argument and had no prayer to urge upon the Court.
Out of the nine grounds of appeal, the Appellant distilled three issues as follows:
1. Whether or not the learned trial Court was right in her decision that the 1st Respondent had proved his title to the land in dispute? (Grounds 1, 2 and 9).
2. Whether or not
