AFAN & ORS v. INAH & ORS
(2020)LCN/14147(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Friday, April 24, 2020
CA/J/419/2017
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
1.ADAGWOM ISHA S. AFAN 2.GALADIMA AGWOM ARUM 3.WAZIRI AJIK AFAN 4.CHIROMA AGWOM AFAN 5.YAKUBU SILAS ITSE APPELANT(S)
And
1.ADAGWOM ATANG INAH 2.ILIYA B. AJIK 3.ATSEN ISHA 4.IZAM AJIK 5.DANNY IZANG AJIK 6.AWARE IZANG RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY CLAIMING TITLE TO LAND MUST SUCCEED ON THE STRENGTH OF HIS CASE IN AN ACTION FOR DECLARATION OF TITLE TO LAND
It is trite law that in an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ugoji Vs Onukogu (2005) 16 NWLR (Pt 950) 97, Ashiru Vs Olukoya (2006) 11 NWLR (Pt 990) 1, Njoku Vs Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 239, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt 1206) 559. Where a claimant’s claim to a piece of land in dispute is predicated on ownership, the onus is on him to prove and establish his ownership – Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348.
The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities – Abaye Vs Ofili (1986) 1 NWLR (Pt 15) 134, Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217. This onus generally does not shift and must be discharged by clear, emphatic, satisfactory and cogent evidence – Kaiyaoja Vs Egunla (1974) 12 SC 55, NITEL Plc Vs Rockonoh Property Co. Ltd (1995) 2 NWLR (Pt 378) 473, Ezinwa Vs Agu (2004) 3 NWLR (Pt 861) 431, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332. Where a defendant does not counterclaim in an action for declaration of title, the onus is on the claimant to first establish a prima facie case before a consideration of the case of the defendant can arise – Aromire Vs Awoyemi (1972) 1 SC 1, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Oyedeji Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604. Once the claimant has failed to establish his link with the disputed land, he has failed to discharge the burden of proof placed on him. The law is that there is no burden on the defendant – Awomuti Vs Salami (1978) 3 SC 105, Olowosago Vs Adebanjo (1988) 4 NWLR (Pt 88) 275, Ajibona Vs Kolawole (1996) 10 NWLR (Pt 476) 22, Dike Vs Okoloedo (1999) 10 NWLR (Pt 623) 359, Olisa Vs Asojo (2002) 1 NWLR (Pt 747) 13, Sosan Vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546. PER ABIRU, J.C.A.
METHOD OF PROVING OWNERSHIP OF LAND
It is settled law that to succeed in a case for declaration of title, a party must plead and prove the method by which he acquired the said title; ownership of land cannot be claimed without first establishing that ownership – Fasoro Vs Beyioku (1988) 2 NWLR (Pt 76) 263, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Onwugbufor Vs Okoye (1996) 1 NWLR (Pt 424) 252, United Bank for Africa Plc Vs Ayinke (2000) 7 NWLR (Pt 663) 83, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265. A claimant must satisfy the Court as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Obawole Vs Coker (1994) 5 NWLR (Pt 345) 416, Adesanya Vs Aderonmu (2000) 9 NWLR (Pt 672) 370 at 382, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Obineche Vs Akinsobi (2010) 12 NWLR (Pt 1208) 383. There are five recognized ways of proving ownership of land in Nigeria. These are: (i) by evidence of traditional history; (ii) by documents of title which are duly authenticated in the sense that due execution must be proved; (iii) by acts of ownership such as selling, leasing renting out or farming on all or part of land and which are numerous and positive enough and extending over a sufficient length of time to warrant the inference that the party was the true owner of the land; (iv) by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership; and (v) by proof of possession of connected or adjacent land in circumstances that render it probable that the owner of such connected or adjacent land would be the owner of the land – Idundun Vs Okumagba (1976) 1 NMLR 200, Omoregie Vs Idigiemwanye (1985) 2 NWLR (Pt 5) 41, Mogaji Vs Cadbury Nig. Ltd (1985) 2 NWLR (Pt 7) 393, Maigari Vs Mailafiya (2011) 1 NWLR (Pt 1228) 379, Dakolo Vs Rewane-Dakolo (2011) 16 NWLR (Pt 1272) 22. PER ABIRU, J.C.A.
THE LAW ON PLEADING AND PROVING ROOT OF TITLE TO LAND
Now, the law on the pleading and proving of root of title in land litigation and the necessary consequences of such plea and proof is set and settled. A party claiming declaration of title to land need not plead and prove more than one of the five recognized methods of establishing title to land in order to succeed. Each of the five methods will suffice independent of the others to prove title. If the claimant pleads or relies on more than one method to prove its title, he merely does so ex abundant cautela – Aikhionbare Vs Omoregie (1976) 12 SC 11, Piaro Vs Tenalo (1976) 12 SC 31, Onibudo Vs Akibu (1982) 7 SC 60, Balogun Vs Akanji (1988) 1 NWLR (Pt 70) 301, Okonkwo Vs Okolo (1988) 2 NWLR (Pt 79) 632. Where a claimant pleads more than one of the five methods of establishing title to land and one method fails, the Court must proceed to consider the other method or methods of establishing title to land pleaded. This is particularly more so where a party pleads both evidence of traditional history and acts of possession and ownership as methods of establishing title and where the evidence of traditional history is found inconclusive, the Court must proceed to consider the acts of possession and ownership – Irolo Vs Uka (2002) 14 NWLR (Pt 786) 195, Awara Vs Alalibo (2002) 18 NWLR (Pt 799) 484, Morenikeji Vs Adegbosin (2003) 8 NWLR (Pt 823) 612, Owhonda Vs Ekpechi (2003) 17 NWLR (Pt 849) 326, Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Balogun Vs Akanji (2005) 10 NWLR (Pt 933) 394. PER ABIRU, J.C.A.
PRIMARY METHOD OF PROVING GOOD TITLE TO LAND
Where, however, a claimant pleads a primary method of establishing title, such as, traditional history or documents of title, and he also pleads acts of ownership and possession which are dependent on that main method of establishing title, he cannot succeed if he fails to prove that main method of establishing title to land. In such a case, the acts of possession and ownership are done because, and in pursuance, of the ownership. Such alleged acts of possession, dominion and the like are merely derivative from the title or ownership of the land in dispute; ownership forms the quo warranto of these acts as it gives legality to the acts of possession and ownership which would otherwise have been acts of trespass – Odofin Vs Ayoola (1984) 11 SC 72, Ogungbemi Vs Asamu (1986) 3 NWLR (Pt 27) 161, Fasoro Vs Beyioku (1988) 2 NWLR (Pt 76) 263, Eronini Vs Iheuko (1989) 2 NWLR (Pt 101) 46, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Ude Vs Chime (1993) 3 NWLR (Pt 279) 78. InLawal Vs Olufowobi (1996) 10 NWLR (Pt 477) 177, Belgore, JSC put the point thus at page 188 A-B:
“The root of title, in cases like the one now on appeal, once pleaded as raison d’etre for the presence of the person pleading must be proved to the satisfaction of the Court. Because if the root of title depended upon is defective or remains unproved, the possession claimed is illusory and it may in the end be an act of trespass. The appellants failed to prove their root of title, their traditional history on the land having failed to hold any water. Thus if the pleaded root of title is not established by evidence as is the case here it is a futile exercise to go into the issue of possession or acts of ownership.”
In other words, acts of ownership and possession can only properly be considered where the root of title is pleaded and established by cogent and convincing evidence – Orlu Vs Gogo-Abite (2010) 8 NWLR (Pt 1196) 307, Odunukwe Vs Ofomata (2010) 18 NWLR (Pt 1225) 404, Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175, Ogunleye Vs Jaiyeoba (2011) 9 NWLR (Pt 1525) 339. This principle was reiterated by the Supreme Court in Oyadare Vs Keji (2005) 7 NWLR (Pt 925) 571 when the Court held that where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn round to rely on acts of ownership and possession to prove his title to the land because once the foundation of his title, the traditional history, has failed, there would be nothing on which to found acts of ownership. Similarly, the Court Of Appeal in Irawo Vs Adedokun (2005) 1 NWLR (Pt 906) 199 said that if a pleaded root of title is not established by evidence, to examine evidence of possession or acts of ownership that ought to have been exercised by the party laying claim to that root of title, as the Court was being urged, would be an exercise in futility and that since the traditional history which was the foundation had failed, any consequential acts or claims would have no leg to stand on. Thus, it is only after a party’s root of title as pleaded has first been established to the satisfaction of the Court that any consequential acts following there from can be looked at with a view to seeing whether they will avail the party claiming. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Plateau State delivered in Suit No PLD/J317/2013 by Honorable Justice C. L. Dabup on the 27th of July, 2017. The Appellants were the claimants in the lower Court and their claims against the Respondents were for:
i. An order declaring the Appellants as the rightful owners of the disputed land situated at Kerker, Fobur District of Jos East Local Government Area of Plateau State.
ii. An order of perpetual injunction restraining the Respondents by themselves, privies, agents, successors by whatsoever name from entering the land of the Appellants.
The case of the Appellants in support of their claims before the lower Court was that they are the great grandchildren of one Agbaja Agyer who founded the land in dispute and farmed a portion thereon for several years before leaving one Arin Agbaja Agyer thereon and moving to Sabon Gari Fobur in Jos East Local Government Area of Plateau State. It was their case that when Agbaja Agyer migrated from his farmland in dispute, he put one Izang Abok Adja in care
1
thereof and that at Sabon Gari, he begat three children, namely Nyam Agbaja Agyer, Azi Agbaja and Atang Agbaja Agyer. It was their case that they had a good relationship with Izang Abok Adja and that upon the death of Izang Abok Adja, his children continued to farm on the farmland and paid them tribute in the nature of farm produce and that there are economic trees as well as the tomb of Izang Abok Adja and the houses of their privies on the land in dispute.
It was the case of the Appellants that sometime in 2010 they got information that the Respondents entered into and cleared a portion of the land in dispute with the intention of farming thereon and that they reported the matter to the Ward Head and the Village Head. It was their case that the Village Head-in-Council held several meetings to investigate their complaints and that they and the Respondents attended before the Council and that the proceedings of the Council were recorded in writing and that at the conclusion of deliberations in 2012, it was resolved that the land in dispute belonged to them, but that surprisingly the Respondents re-entered the land in 2013.
2
In response, the Respondents denied the entire case of the Appellants and it was their case that the land in dispute was founded and first cleared by their forbear known as Awang, who was both a hunter and a farmer, and that their forbear farmed upon the land in dispute. It was their case that upon the demise of Awang, the land in dispute devolved on one Agwom and thereafter to one Izang Agwom and then to a person called Shango, before coming to be possessed by their own generation and that the land has remained in the control of their family from the founding up till date. It was their case that the land in dispute shared boundary on the West with Azin Arin, on the South with Iliya Yakubu, on the East with a stream and on the North with Asten Isha and Ajiji, who are members of their clan. It was their case that it was their grandfather Izang Agwom Awang who gave a portion of the land to Izang Abok Adjah to live on and cultivate and that Izang Abok Adjah cultivated the land until his death in 1963 and that he was buried on the land by his brother Abok Nyam with the permission of their grandfather.
It was the case of the Respondent that Izang Abok Adjah died childless and
3
that their family took over the land thereafter and they were not challenged by Abok Nyam or anyone else and they have been cultivating and harvesting the economic trees thereon since then and that they let out a portion of the land to one Mallam Hassan, a Fulani Cattle Rearer. It was their case that the first Respondent is a member of the Kerker Traditional Council and that at no time did the Council investigate, deliberate on and/or make any resolution in any matter involving them and the Appellants and that at no time did they submit themselves for any such investigation or deliberations. It was their case that the Village Head of Kerker, Adagwom Azi Isha, and his secretary, Madaki Bulus Abok, were in the habit of producing records of purported Council meetings to declare title to land in favour of individuals and that said Village Head was presently standing trial in the Chief Magistrate Court on a criminal complaint they made against him for such conduct.
The matter proceeded to trial and in the course of which the Appellants called five witnesses in proof of their case and the Respondents called four witnesses in proof of their defence. At the
4
conclusion of trial and after the presentation of final written addresses by Counsel to the parties, the lower Court entered judgment dismissing the claims of the Appellants for failure to lead cogent evidence of the traditional history of ownership of the land in dispute relied on by them.
The Appellants were dissatisfied with the judgment of the lower Court and they caused their Counsel to file a notice of appeal dated the 19th of October, 2017 and containing four grounds of appeal against it. In prosecuting the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 30th of May, 2018 on the 1st of June, 2018 and the brief of arguments was deemed properly filed by this Court on the 7th of February, 2019. In response, Counsel to the Respondents filed a brief of arguments dated the 15th of May, 2019 on the 11th of October, 2019 and the brief of arguments was deemed properly filed by this Court on the 15th of October, 2019. Counsel to the Appellants filed a Reply brief of arguments dated the 7th of November, 2019 and which brief of arguments was deemed properly filed by this Court on the 4th of February, 2020. At the
5
hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their oral submissions in the appeal.
Counsel to the Appellants distilled three issues for determination in the appeal and these were:
i. Whether the failure of the trial Court to make a finding on material issue as to who left the property in the custody and possession of Izang Abok Adjah between Agbaja Agyer and Izang Awang is not fatal to the decision of the trial Court thereby occasioning a miscarriage of justice.
ii. Whether evidence of traditional history was the only means of proving title to land pleaded by the Appellants in their statement of claim.
iii. Whether the trial Court properly evaluated the evidence available before it in arriving at its decision.
In arguing the first issue for determination, Counsel to the Appellants referred to the case of Adeyeye Vs Ajiboye (1987) 3 NWLR (Pt 61) 432 in reiterating what the attributes of a good judgment are and stated that the lower Court failed to set out the issues in contention between the parties and make necessary findings on them in the
6
judgment. Counsel made particular reference to the contention of both parties in their pleadings that their respective forbears put one Izang Abok Adjah in possession of portion of the land in dispute and he noted the failure of the lower Court to resolve the question of the forbear of which of the parties actually put Izang Abok Adjah in possession of portion of the land and stated that this failure was fundamental and was sufficient reason for this Court to interfere with the judgment of the lower Court and to order a retrial and he referred to the cases of Adeyemo Vs Arokopo (1988) NWLR (Pt 76) 703 and Okonjo Vs Njokanma (1991) 7 NWLR (Pt 202) 131. Counsel urged the Court resolve the first issue for determination in favour of the Appellants.
On the second issue for determination, Counsel stated that the Appellants did not only plead traditional history as their root of title, but that they also pleaded and led evidence of acts of ownership and possession as a root of title and that the lower Court was thus in error when it rejected their case of ownership of the land in dispute on the paucity of their evidence of traditional history of ownership of the
7
land in dispute without considering their case on acts of ownership and possession. Counsel made reference to paragraphs of the pleadings of the Appellants and to portions of the evidence of their witnesses wherein he said they canvassed acts of ownership and possession and stated that possession of land by a party may be express or constructive and he referred to the case of Ladipo Vs Ajani (1997) 8 NWLR (Pt 157) 357 and urged the Court resolve the second issue for determination in favour of the Appellants.
On the third issue for determination, Counsel stated that where a trial Court fails in carrying out its sacred duty of proper evaluation of evidence or where the decision of the Court cannot be supported by the available evidence, the decision will be said to be against the weight of evidence. Counsel stated that the failure of the lower Court to accord any value to the case of the Appellants that it was their forbear who put Izang Abok Adjah in possession of portion of the land in dispute and to a record of Court proceedings tendered in evidence occasioned them a miscarriage of justice and he urged the Court to also resolve the third issue for
8
determination in favour of the Appellants.
Counsel concluded his arguments by urging the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court.
On his part, Counsel to the Respondents formulated two issues for determination in the appeal and these were:
i. Whether the first and second issues in the Appellants’ brief of arguments which is premised on possession are competent same being canvassed for the first time before this Honorable Court, leave of Court not sought for and/or obtained.
ii. Whether the trial Court was wrong in its finding that the Appellants failed to establish their case upon a preponderance of evidence as required by Section 134 of the Evidence Act.
In arguing the first issue for determination, Counsel stated that the duty of a trial Judge when determining a case is limited to deciding the issue in dispute as presented by the parties, based on the facts alleged and proved, while taking into consideration the applicable law. Counsel stated that a cursory examination of the case presented by the Appellants in the lower Court shows clearly that their case was hinged on
9
traditional history of ownership of land and this fact was affirmed by the Counsel to the Appellants in the issues he formulated for determination in his written address and in the arguments canvassed therein. Counsel referred to the case of PPA Vs INEC (2012) 13 NWLR (Pt 1317) 215 in reiterating the principle that an appeal is an invitation to a higher Court to review the veracity of the decision of a lower Court based on case presented to that Court and stated that Counsel to the Appellants was emphatic throughout his written address that their case was predicated on traditional history, and on nothing else.
Counsel stated that the reliance that Counsel to the Appellants seeks to place on acts of ownership and possession in this appeal was an afterthought and that it is trite that a party must be consistent in the case he presents and he referred to the case of Odom Vs PDP (2015) 6 NWLR (Pt 1456) 553. Counsel stated that the second issue for determination formulated by Counsel to the Appellants was a fresh issue which was never canvassed before or pronounced upon by the lower Court and that the Appellants required the leave of Court to raise it, and
10
which they failed to obtain thus rendering the issue incompetent and he referred to the cases of Ekpeyong Vs Nwoko (2018) 13 NWLR (Pt 1636) 342 and CGG (Nig) Ltd Vs Aminu (2015) 7 NWLR (Pt 1459) 577, amongst several others. Counsel stated that by the first and second issues for determination the Appellants seek to make out a different case from that canvassed in the lower Court and they cannot be allowed to do so. Counsel urged the Court to resolve the first issue for determination in favour of the Respondents.
On the second issue for determination, Counsel referred to several case law authorities and the provision of Section 131(1) of the Evidence Act in reiterating the assertion that the burden of proof of the case before the lower Court in the instant case was on the Appellants, even if the Respondents had no defence whatsoever and that the Appellants were obligated to discharge same by credible evidence. Counsel stated that the none of the Appellants testified before the lower Court and that they only pleaded facts without producing evidence in support thereof and it was not the duty of the lower Court to supply or imagine evidence and it cannot go on
11
a voyage to discover evidence not placed before it and he referred to the case of Olusanya Vs Osinleye (2013) NWLR (Pt 1367) 171.
Counsel stated that an appellate Court will only interfere with the judgment of the lower Court where the judgment is shown to be perverse, not supported by evidence or had occasioned a miscarriage of justice and that it is not enough for an appellant to allege perversity of findings or miscarriage of justice without showing in concrete terms how these occurred and how they affected the judgment appealed against and he referred to the case of CPC Vs INEC (2012) 29 WRN 45. Counsel stated that the allegation of miscarriage of justice made by the Appellants were unsubstantiated and that the lower Court properly and dispassionately assessed the facts presented by the parties in this case and its findings were supported by the evidence led thereon and as such its decision should not be faulted by this Court. Counsel urged the Court to resolve the second issue for determination in favour of the Respondents.
Counsel concluded his submissions by praying the Court to find no merit in the appeal and to dismiss same and affirm the
12
judgment of the lower Court.
In the Reply brief of arguments, Counsel to the Appellants posited that their complaint in the first and second issues for determination was the failure of the lower Court to consider and make findings on aspects of the case they put forward in their pleadings and evidence and that this is a complaint bordering on denial of fair hearing and it is one that the Appellants could raise on appeal for the first time, without leave of Court and he referred to the cases of FCMB Vs Liquid Africa Holding Ltd (2019) LPELR 47623(CA) and Ejeka Vs State (2003) LPELR 106(SC). Counsel stated the first and second issues formulated by the Appellants were thus competent.
Now, this matter is in respect of a land dispute and the Appellants claimed for a declaratory order of ownership of land as well as for an order of perpetual injunction. It is trite law that in an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the
13
proper judgment is for the other party – Ugoji Vs Onukogu (2005) 16 NWLR (Pt 950) 97, Ashiru Vs Olukoya (2006) 11 NWLR (Pt 990) 1, Njoku Vs Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 239, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt 1206) 559. Where a claimant’s claim to a piece of land in dispute is predicated on ownership, the onus is on him to prove and establish his ownership – Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348.
The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities – Abaye Vs Ofili (1986) 1 NWLR (Pt 15) 134, Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217. This onus generally does not shift and must be discharged by clear, emphatic, satisfactory and cogent evidence – Kaiyaoja Vs Egunla (1974) 12 SC 55, NITEL Plc Vs Rockonoh Property Co. Ltd (1995) 2 NWLR (Pt 378) 473, Ezinwa Vs Agu (2004) 3 NWLR (Pt 861) 431, Yusuf Vs Adegoke (2007)
14
11 NWLR (Pt 1045) 332. Where a defendant does not counterclaim in an action for declaration of title, the onus is on the claimant to first establish a prima facie case before a consideration of the case of the defendant can arise – Aromire Vs Awoyemi (1972) 1 SC 1, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Oyedeji Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604. Once the claimant has failed to establish his link with the disputed land, he has failed to discharge the burden of proof placed on him. The law is that there is no burden on the defendant – Awomuti Vs Salami (1978) 3 SC 105, Olowosago Vs Adebanjo (1988) 4 NWLR (Pt 88) 275, Ajibona Vs Kolawole (1996) 10 NWLR (Pt 476) 22, Dike Vs Okoloedo (1999) 10 NWLR (Pt 623) 359, Olisa Vs Asojo (2002) 1 NWLR (Pt 747) 13, Sosan Vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546.
The Respondents did not counterclaim before the lower Court in this matter. Thus, in the view of this Court, the only issue for determination in this appeal is:
Whether, on the pleadings
15
and evidence led by the parties, the lower Court was correct when it found that the Appellants did not make out a credible case to entitle them to the reliefs sought.
This appeal will be resolved on this sole issue for determination and all the arguments of Counsel to the parties in this appeal will be considered under this issue for determination.
It is settled law that to succeed in a case for declaration of title, a party must plead and prove the method by which he acquired the said title; ownership of land cannot be claimed without first establishing that ownership – Fasoro Vs Beyioku (1988) 2 NWLR (Pt 76) 263, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Onwugbufor Vs Okoye (1996) 1 NWLR (Pt 424) 252, United Bank for Africa Plc Vs Ayinke (2000) 7 NWLR (Pt 663) 83, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265. A claimant must satisfy the Court as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Obawole Vs Coker (1994) 5
16
NWLR (Pt 345) 416, Adesanya Vs Aderonmu (2000) 9 NWLR (Pt 672) 370 at 382, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Obineche Vs Akinsobi (2010) 12 NWLR (Pt 1208) 383.
There are five recognized ways of proving ownership of land in Nigeria. These are: (i) by evidence of traditional history; (ii) by documents of title which are duly authenticated in the sense that due execution must be proved; (iii) by acts of ownership such as selling, leasing, renting out or farming on all or part of land and which are numerous and positive enough and extending over a sufficient length of time to warrant the inference that the party was the true owner of the land; (iv) by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership; and (v) by proof of possession of connected or adjacent land in circumstances that render it probable that the owner of such connected or adjacent land would be the owner of the land – Idundun Vs Okumagba (1976) 1 NMLR 200, Omoregie Vs Idigiemwanye (1985) 2 NWLR (Pt 5) 41, Mogaji Vs Cadbury Nig. Ltd (1985) 2 NWLR (Pt 7) 393, Maigari Vs Mailafiya (2011) 1 NWLR (Pt 1228) 379,
17
Dakolo Vs Rewane-Dakolo (2011) 16 NWLR (Pt 1272) 22.
The core complaint of the Appellants in this appeal is the failure of the lower Court to consider the acts of possession carried out by their progenitors on the land in dispute, particularly the issue of whether it was their progenitor or the progenitor of the Respondents that put Izang Abok Adjah on the land in dispute and that this occasioned them a miscarriage of justice. The Appellants suggested that they pleaded both traditional history and acts of possession as their roots of title.
Now, the law on the pleading and proving of root of title in land litigation and the necessary consequences of such plea and proof is set and settled. A party claiming declaration of title to land need not plead and prove more than one of the five recognized methods of establishing title to land in order to succeed. Each of the five methods will suffice independent of the others to prove title. If the claimant pleads or relies on more than one method to prove its title, he merely does so ex abundant cautela – Aikhionbare Vs Omoregie (1976) 12 SC 11, Piaro Vs Tenalo (1976) 12 SC 31, Onibudo Vs Akibu (1982) 7 SC 60,
18
Balogun Vs Akanji (1988) 1 NWLR (Pt 70) 301, Okonkwo Vs Okolo (1988) 2 NWLR (Pt 79) 632. Where a claimant pleads more than one of the five methods of establishing title to land and one method fails, the Court must proceed to consider the other method or methods of establishing title to land pleaded. This is particularly more so where a party pleads both evidence of traditional history and acts of possession and ownership as methods of establishing title and where the evidence of traditional history is found inconclusive, the Court must proceed to consider the acts of possession and ownership – Irolo Vs Uka (2002) 14 NWLR (Pt 786) 195, Awara Vs Alalibo (2002) 18 NWLR (Pt 799) 484, Morenikeji Vs Adegbosin (2003) 8 NWLR (Pt 823) 612, Owhonda Vs Ekpechi (2003) 17 NWLR (Pt 849) 326, Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Balogun Vs Akanji (2005) 10 NWLR (Pt 933) 394.
Where, however, a claimant pleads a primary method of establishing title, such as, traditional history or documents of title, and he also pleads acts of ownership and possession which are dependent on that main method of establishing title, he cannot succeed if he fails to prove that
19
main method of establishing title to land. In such a case, the acts of possession and ownership are done because, and in pursuance, of the ownership. Such alleged acts of possession, dominion and the like are merely derivative from the title or ownership of the land in dispute; ownership forms the quo warranto of these acts as it gives legality to the acts of possession and ownership which would otherwise have been acts of trespass – Odofin Vs Ayoola (1984) 11 SC 72, Ogungbemi Vs Asamu (1986) 3 NWLR (Pt 27) 161, Fasoro Vs Beyioku (1988) 2 NWLR (Pt 76) 263, Eronini Vs Iheuko (1989) 2 NWLR (Pt 101) 46, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Ude Vs Chime (1993) 3 NWLR (Pt 279) 78. InLawal Vs Olufowobi (1996) 10 NWLR (Pt 477) 177, Belgore, JSC put the point thus at page 188 A-B:
“The root of title, in cases like the one now on appeal, once pleaded as raison d’etre for the presence of the person pleading must be proved to the satisfaction of the Court. Because if the root of title depended upon is defective or remains unproved, the possession claimed is illusory and it may in the end be an act of trespass. The appellants failed to prove
20
their root of title, their traditional history on the land having failed to hold any water. Thus if the pleaded root of title is not established by evidence as is the case here it is a futile exercise to go into the issue of possession or acts of ownership.”
In other words, acts of ownership and possession can only properly be considered where the root of title is pleaded and established by cogent and convincing evidence – Orlu Vs Gogo-Abite (2010) 8 NWLR (Pt 1196) 307, Odunukwe Vs Ofomata (2010) 18 NWLR (Pt 1225) 404, Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175, Ogunleye Vs Jaiyeoba (2011) 9 NWLR (Pt 1525) 339. This principle was reiterated by the Supreme Court in Oyadare Vs Keji (2005) 7 NWLR (Pt 925) 571 when the Court held that where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn round to rely on acts of ownership and possession to prove his title to the land because once the foundation of his title, the traditional history, has failed, there would be nothing on which to found acts of ownership. Similarly, the Court Of Appeal in Irawo Vs Adedokun (2005) 1 NWLR
21
(Pt 906) 199 said that if a pleaded root of title is not established by evidence, to examine evidence of possession or acts of ownership that ought to have been exercised by the party laying claim to that root of title, as the Court was being urged, would be an exercise in futility and that since the traditional history which was the foundation had failed, any consequential acts or claims would have no leg to stand on. Thus, it is only after a party’s root of title as pleaded has first been established to the satisfaction of the Court that any consequential acts following there from can be looked at with a view to seeing whether they will avail the party claiming.
The question that arises in this appeal is – what was the root of title pleaded by the Appellants to support their claim of ownership of the land in dispute? Did they plead one root of title, traditional history, or multiple roots of title; traditional history and acts of ownership and possession?
It is trite law that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting
22
forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them –
Orodoegbulam Vs Orodoegbulam (2014) 1 NWLR (Pt 1387) 80, Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G, Okoye Vs Nwankwo (2014) 15 NWLR (Pt 1429) 93.
Thus, in answering the above question, this Court must have recourse to only the pleadings of the Appellants. Reading through the averments therein, it is without doubt that the Appellants pleaded traditional history as their sole and primary root of title and that the alleged acts of ownership and/or possession pleaded by them through the use of the land by Izang Abok Adjah
23
were averred in furtherance of their claim of ownership of the land in dispute. This fact was confirmed and reaffirmed by Counsel to the Appellants throughout his arguments in his final address in the lower Court; he asserted and reiterated therein that the case of the Appellants was predicated on traditional history and he did not state anywhere that it was founded on acts of ownership and/or possession. Counsel canvassed arguments in respect of the pleaded acts of possession in furtherance of the Appellants’ ownership of the land by traditional history.
Now, the lower Court found in the judgment that the Appellants did not make out a credible case in proof of the primary root of title pleaded by them; traditional history. The Appellants did not contest this finding in this appeal and they thus accepted the finding as true, correct and binding on the parties and on this Court –Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Governor of Ekiti State Vs Olayemi (2016) 4 NWLR (Pt 1501)1 and Braithwaite Vs Dalhatu (2016) 13 NWLR (Pt 1528) 32.
As reiterated above, this finding of the lower Court removed the obligation on it to proceed to consider the
24
alleged acts of ownership and/or possession that the Appellants pleaded that they carried out on the land in furtherance of their primary root of title. No amount of use or the length of period of usage could confer ownership of land on such a user and it behoves such a party to prove his title in the first place in order to justify the use to which the land in dispute had been put to. Enjoyment of a land in dispute cannot precede title nor can it indicate same – Registered Trustees of the Apostolic Faith Mission Vs James (1987) 3 NWLR (Pt 61) 556, Nwaeseh Vs Nwaeseh (2000) 3 NWLR (Pt 649) 391, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332, Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1.
The complaints of the Appellants in this appeal, being wholly predicated on the failure of the lower Court to consider their pleaded acts of ownership and/or possession, are baseless and not well founded. This appeal is an open display of a lack of understanding of the rudimentary principles of land litigation by Counsel to the Appellants. The appeal is totally lacking in merit and must be dismissed by the Court. The appeal fails and it is hereby dismissed. The
25
judgment of the High Court of Plateau State delivered in Suit No PLD/J317/2013 by Honorable Justice C. L. Dabup on the 27th of July, 2017 is affirmed. The Respondents are awarded the costs of this frivolous appeal assessed at N100,000.00 against the Appellants. These shall be the orders of the Court.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I was privileged to read in advance the draft of the lead judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU JCA, just delivered.
I agree entirely with his reasoning and conclusions in dismissing the appeal.
I also dismiss the appeal and I abide by the consequential orders made including that on cost in favour of the Respondents and against the Appellants.
BOLOUKUROMO MOSES UGO, J.C.A.: I agree
26
Appearances:
Jerry Umeyor For Appellant(s)
M. Okoye with him, L. A. Albert For Respondent(s)
