ALEX EGUAOBA & ANOR v. HON. JOHN IMONA & ORS
(2019)LCN/13904(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of May, 2019
CA/B/368/2014
RATIO
LAND LAW: TITLE: 5 WAYS OF PROVING TITLE TO LAND
The Law recognizes five (5) disjunctive and distinctive ways of proving title to land. The five ways of establishing title to land have been stated in a long line of decisions of the Supreme Court, and re-stated recently in the case of CSP L.L. Anagbado v. Alhaji Idi Faruk (2019) 1 NWLR (Pt. 1653) 292 at 307-308, per Amiru Sanusi, JSC; are:-
i. By traditional evidence, or
ii. By production of documents of title
iii. By the exercise of numerous and positive acts of ownership extending over a sufficient length of time to warrant the inference that the person is the true owner,
iv. By acts of long possession and enjoyment of the land; and
v. By proof of possession of connected or adjacent land and in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.?
See also Idundun v. Okumagba (1976) 9-10 SC 227; Piaro v. Tenalo (1976) 12 SC 31; Omorogie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41 and Alhaji Lasisi Salisu v. Alhaji Abbas Mobolaji (2016) 15 NWLR (Pt. 1535) 242. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
LAND LAW: DECLARATION OF TITLE: IN A CLAIM OF DECLARATION OF TITLE TO LAND, A PARTY WINS ON THE STRENGTH OF HIS CASE AND NOT ON THE WEAKNESS OF THE OTHER PARTY’S CASE
The law is settled also that in a claim for declaration of title to land, the plaintiff or claimant must succeed on the strength of his case and not on the weakness of his opponents case. See Kodilinye v. Odu 2 WACA 336; O.K.O. Mogaji v. Cadbury Nigeria Limited (1985) 2 NWLR (Pt. 7) 393; Alhaji Musa Umar v. Alhaji Tijani Saleh Geidam (2019) 1 NWLR (Pt. 1652) 29 and CSP L.L. Anagbado v. Alhaji Idi Faruk (2019) 1 NWLR (Pt. 1653) 292. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
COURTS: DUTY OF COURT: PRIMARY DUTY OF TRIAL COURT TO ASSESS THE EVIDENCE TENDERED BEFORE IT AND ASCRIBE A PROBATIVE VALUE
It is an accepted and settled principle of law that it is the primary duty of a trial Court to assess the evidence tendered before it and ascribe appropriate probative value thereto. See Odofin v. Ayoola (1984) 11 SC 72; Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21; Sanni v. Ademiluyi (2003) 3 NWLR (Pt. 807) 381; Arowolo v. Olowookere (2011) 18 NWLR (Pt. 1278) 280 and Isa Bello v. Federal Republic of Nigeria (2019) 2 NWLR (Pt. 1656) 193. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
PRACTICE AND PROCEDURE: WHEN AN ALLEGED CONTRADICTION WILL TILT AN APPEAL IN FAVOUR OF AN APPELLANT
For an alleged contradiction to affect the fortunes of a case and tilt an appeal in favour of an appellant, the contradiction must be very material and not merely peripheral. See Samson Owie v. Solomon E. Ighiwi (2005) 5 NWLR (Pt. 917) 184 at 218, per Niki Tobi, JSC. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
LAND LAW: IDENTITY OF LAND: BEFORE IT CAN BE MADE AN ISSUE, THE PARTY RAISING IT MUST HAVE PLEADED IT IN HIS STATEMENT OF DEFENCE
The law is now settled that before the identity of land in dispute can be made an issue, the party raising it must have first raised it in his statement of defence by denying the location, identity and boundaries of the land in dispute. See Baruwa v. Ogunshola (1938) 4 WACA 159; Adenle v. Olude (2002) 18 NWLR (Pt.799) 413; Ogunyanwo v. Oluwole (2009) 16 NWLR (Pt.1167) and CSP L.L. Anagbado v. Alhaji Idi Faruk (2019) 1 NWLR (Pt. 1653). PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. ALEX EGUAOBA
2. JOHN U. AIGBOLOGA
(Suing for themselves and on behalf of the Avbiosi Community) Appellant(s)
AND
1.HON. JOHN IMONA
2. ADODO SUNDAY
3. OKELOMEN OHIREN
(Suing for themselves and on behalf of the Ora Community) Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondents were the plaintiffs in Suit No. HSO/12/2010 which they instituted in the High Court of Edo State, holden at Sabongida-Ora. In the said suit, the respondents claimed against the defendants, now appellants, the following relief: –
?(i) A declaration that the plaintiffs are the one entitled to a grant of Statutory Right of Occupancy over all that piece or parcel of land verged red within the area verged green in the Amended Litigation survey plan No. ISO/ED/D48/2011 dated the 6th day of October 2011 made and duly signed by licensed surveyor IDRI F.U. IYAWE which said land is within Ora Communal Land.
(ii) A declaration that as a result of the settlement of AVBIOSI and based on long usage, the traditional boundary of Ora Community on the Oke New, Ora side with Iuleha of which Avbiosi New Site is a part was Uhonmo-Ugbawe extending to Ukpokho-Otien altered and is now at the place the defendants community member has their last house after the water reservoir when going from Oke New Site to Avbiosi.
(iii) N5,000,000.00 (Five Million Naira) General damages for trespass against the defendant in that they broke and entered unto the plaintiffs land without their consent and authority.
(iv) Perpetual injunction restraining the defendants by themselves, their servants, agents and privies how so ever called from further trespassing unto the said land?.
Upon the exchange of pleadings, the respondents called 4 witnesses in their attempt to prove their case, while the appellants called 5 witnesses in defence thereof. Both parties tendered exhibits to support their claim and defence, respectively. After taking the evidence of the parties and their witnesses and upon hearing the addresses of counsel, the trial Court delivered a reserved judgment on the 30th day of April, 2014 in which it held that the respondents ?have proved their claim on a balance of probability? and their claim was, accordingly, granted. The appellants, being dissatisfied with the decision of the trial Court, appealed to this Court and the appeal was heard based on the following processes: –
1. Amended notice of appeal filed on 03/09/2018 but deemed as properly filed on 27/02/2019.
2. Appellants? brief of arguments filed on 27/04/2017;
3. Respondents? brief of arguments filed on 17/05/2017; and
4. Appellants? reply brief filed on 19/05/2017.
The Appellants distilled three issues for determination as follows: –
?1. Whether the respondents successfully proved their claim to the disputed land to warrant the trial Court entering judgment in their favour.
2. Whether by the circumstance of this case, the identity and boundaries of the land, subject matter of this suit was in issue and if yes, whether same was proved by the respondents.
3. Whether the learned trial Judge was right in refusing to give effect to exhibit D3 in his determination of the case?.
The above issues were adopted by the respondents.
The issues identified by the parties can be streamlined into a sole issue for determination as follows:-
Whether or not the respondents properly identified the land in dispute and proved their title thereto.
Learned counsel for the appellants argued that the respondents ?relied on traditional evidence which was pleaded in their Amended Statement of Claim No. 4 and also adduced from the oral testimonies of their witnesses?. Counsel referred specifically to paragraphs 7 to 14 of the said amended statement of claim and the evidence of PW1 and PW2 and contended that:-
?The respondents on one hand have stated that Okpame also known as Uguan came to settle at Odorere which means that Odorere as a place was already in existence before Okpame came there to settle down and eventually got married and have a son called Oraekpen, on the other hand, the respondents have also stated that Oreakpen who was born after his father had settled at Odorere was the founder of Ora Clan. It is also the respondents? claim that the entire land mass of Ora Clan is also known as Odorere while the children of Oreakpen are the founders of the six villages making up Ora Clan?.
Counsel contended that it was wrong for the trial Court to give judgment in favour of the respondents despite the ?seeming contradictions about their traditional history?. Learned counsel relied on several cases, includingElegushi v. Oseni (2006) 133 LRCN 285; Eyo v. Onuoha (2011) LRCN 38 and Yusuf v. Adegoke (2007) All FWLR (Pt. 385) 384; and submitted that ?when a party gives material contradiction about a relevant fact in issue, then that fact is regarded as not proved?.
It was contended that apart from the contradictions in the respondents? traditional history, there was a ?gap on who is the original owner or founder of Odorere, where Okpame (respondents? ancestor migrated to after been (sic) banished from Benin Kingdom as Odorere) is one of the same place where the respondents come from also known as Ora Clan?.
Learned counsel argued that, on the other hand, the appellants? pleadings and evidence show that ?the Evbiobe people of Ora Clan migrated from Odorere into the land in dispute and were allowed to settle on the land with permission of Avbiosi Community at the time? and the appellants? were consistent in their evidence. He stated that the appellants? evidence reveals that they have been in actual and undisturbed possession of the land. In this respect, learned counsel stated, inter alia, as follows:-
?The presence of the appellants on the land in dispute was notable from the ownership of the burrow pit, St. Davies Church and also a cemetery belonging to the Avbiosi people. This piece of evidence was corroborated by the oral testimony of PW2?.
Relying on the case ofWachukwu v. Owunwanne (2011) All FWLR (Pt. 589) 1044 and Momoh v. Umoru (2011) All FWLR (Pt. 589) 797, Mr.E.O. Afolabi, learned counsel for the appellants submitted as follows:-
?When a Court is faced with two versions of traditional history as to the founder of the land in dispute, then the Court should also consider acts of ownership and possession by any of the parties particularly through document or evidence presented before the Court in reaching a conclusion.?
Learned counsel for the appellants argued that the identity of the land in dispute was made an issue in the trial Court. To buttress this point, learned counsel referred to paragraphs 24, 25, 26, 27 and 28 of the respondents? amended statement of claim No. 4 and paragraphs 28, 29, 30, 31, 32 and 33 of the appellants? amended joint statement of defence. He contended that notwithstanding that the identity and boundaries of the land in dispute were in issue, the respondents failed to prove the identity and boundaries of the land.
In urging the Court to allow the appeal, learned counsel for the appellants argued that the trial was wrong in refusing to give effect to exhibit ?D3? ? a letter written by Owan West Local Government Council to the appellants. He submitted that the failure amounted to injustice.
Responding, Mr. G.O. Giwa-Amu, learned counsel for the respondents, argued that both parties relied on traditional history and at the end, the trial Court was right to have held that it preferred the respondents? evidence of traditional history, which ?was neither challenged nor controverted by the appellants?. He submitted that since the respondents? traditional history was not challenged nor controverted by the appellants, ?the burden of proof on the respondents ?… is therefore minimal?. In support of this submission, counsel referred the Court to the cases of Military Governor of Lagos State v. Adeyiga (2012) 205 LRCN 113 and Iyere v. B.F.F.M. Ltd. (2009) 168 LRCN 143.
Learned counsel stated that the appellants failed to cross-examine the respondents? witness on the respondents? traditional history and this failure ?is an acceptance of the respondents traditional history. In support of this contention, counsel cited the cases ofGaji v. Paye (2003) 5 SC 53 and U.I.T.H. v. Abegunde (2015) 3 NWLR (Pt. 1447) 421.
It was submitted that there was no contradiction in the respondents? traditional history. Learned counsel then argued as follows: –
At this juncture, we beg to state and submit that throughout the length and breadth of the proceedings at the lower Court, there was no evidence that Odorere was in existence when Okpame came to Odorere. That piece of evidence was not pleaded by any of the parties and same was not in issue. It is our humble submission that the argument as to the existence of Odorere is merely the submission of the learned counsel to the appellants which cannot take the place of evidence.?
In support of the argument that address of counsel is no substitute for evidence, learned counsel relied on the cases of Ayanwale v. Odusami (2012) 204 LRCN 198 and S.S.G v. Tunji Dosunmu Ltd. (2011) 194 LRCN 192.
The Law recognizes five (5) disjunctive and distinctive ways of proving title to land. The five ways of establishing title to land have been stated in a long line of decisions of the Supreme Court, and re-stated recently in the case of CSP L.L. Anagbado v. Alhaji Idi Faruk (2019) 1 NWLR (Pt. 1653) 292 at 307-308, per Amiru Sanusi, JSC; are:-
?i. By traditional evidence, or
ii. By production of documents of title
iii. By the exercise of numerous and positive acts of ownership extending over a sufficient length of time to warrant the inference that the person is the true owner,
iv. By acts of long possession and enjoyment of the land; and
v. By proof of possession of connected or adjacent land and in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.?
See also Idundun v. Okumagba (1976) 9-10 SC 227; Piaro v. Tenalo (1976) 12 SC 31; Omorogie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41 and Alhaji Lasisi Salisu v. Alhaji Abbas Mobolaji (2016) 15 NWLR (Pt. 1535) 242.
The law is settled also that in a claim for declaration of title to land, the plaintiff or claimant must succeed on the strength of his case and not on the weakness of his opponent?s case. See Kodilinye v. Odu 2 WACA 336; O.K.O. Mogaji v. Cadbury Nigeria Limited (1985) 2 NWLR (Pt. 7) 393; Alhaji Musa Umar v. Alhaji Tijani Saleh Geidam (2019) 1 NWLR (Pt. 1652) 29 and CSP L.L. Anagbado v. Alhaji Idi Faruk (2019) 1 NWLR (Pt. 1653) 292.
In this case, the respondents relied on traditional evidence and various acts of possession. The trial Court comprehensively assessed and evaluated the evidence before it and preferred ?the evidence of the claimants? to that of the defendants, who are the appellants in this Court.
It is an accepted and settled principle of law that it is the primary duty of a trial Court to assess the evidence tendered before it and ascribe appropriate probative value thereto. See Odofin v. Ayoola (1984) 11 SC 72; Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21; Sanni v. Ademiluyi (2003) 3 NWLR (Pt. 807) 381; Arowolo v. Olowookere (2011) 18 NWLR (Pt. 1278) 280 and Isa Bello v. Federal Republic of Nigeria (2019) 2 NWLR (Pt. 1656) 193.
I have read the evidence, both oral and documentary, tendered by the parties in the trial Court. Upon juxtaposing the evidence before the trial court and the judgment of that court, I can safely conclude that the trial court properly evaluated the evidence before it and rightly arrived at the conclusion that the respondents proved their claim as required by law. I have no basis to disturb or interfere with the findings of the trial Court.
There was no material contradiction in the respondents? case. For an alleged contradiction to affect the fortunes of a case and tilt an appeal in favour of an appellant, the contradiction must be very material and not merely peripheral. See Samson Owie v. Solomon E. Ighiwi (2005) 5 NWLR (Pt. 917) 184 at 218, per Niki Tobi, JSC.
The respondents pleaded in paragraphs 16, 17, 18, 19 and 20 of their amended statement of claim No. 4 as follows:-
16. That plaintiffs aver that sometime in 2010, defendants Community trespassed into part of Ora land at the junction of Oke New Site and Avbiosi Road along Ifon Road in the area verged red in the Amended litigation survey plan No. ISO/ED/D48/2011 dated the 6th day of October 2011 and prepared by Registered Surveyor IDRI F.U. Iyawe by allocating the land in dispute to one Ogedengbe Iwolagbe purporting to be the Community that has the right to grant same to persons for development purposes.
17. The plaintiffs aver that it commenced action against the said Ogedengbe Iwolagbe in John Isekiti & 2 Ors. (Suing for and on behalf of Ora community) vs. Ogedengbe Iwolagbe in Suit No. HSO/11/2010.
18. The plaintiffs aver that soon after the commencement of this aforementioned suit, the said Ogedengbe Iwolagbe passed on hence the discontinuance of the said suit.
19. The plaintiffs state that the subject matter of the present dispute is the same as that in the aforementioned suit which is shown and verged red in the Amended Litigation survey plan No. ISO/ED/D48/2011 dated the 6th day of October, 2011 made and duly signed by licensed surveyor IDRI F.U. IYAWE. The said survey plan is hereby filed along with the statement of claim.
20. The plaintiffs aver that the area verged red in the Amended Litigation Survey Plan filed along with this Amended Statement of Claim No. 4 represent the area in dispute in this suit and the said area is within the area verged green in the litigation survey plan filed along with the Statement of Claim.
In response, the appellants pleaded in paragraph 12 of their amended joint statement of defence as follows:-
12. The defendants deny paragraph 16 of the amended statement of claim No. 4 and states that the area in dispute belongs to Avbiosi people and it is verged RED in the defendants?, survey plan no. AJETS/ED 2011/D010 dated 22/12/2011 which defendants shall rely upon at the trial.?
The law is now settled that before the identity of land in dispute can be made an issue, the party raising it must have first raised it in his statement of defence by denying the location, identity and boundaries of the land in dispute. See Baruwa v. Ogunshola (1938) 4 WACA 159; Adenle v. Olude (2002) 18 NWLR (Pt.799) 413; Ogunyanwo v. Oluwole (2009) 16 NWLR (Pt.1167) and CSP L.L. Anagbado v. Alhaji Idi Faruk (2019) 1 NWLR (Pt. 1653).
The appellants did not deny knowledge of the identity, location and boundaries of the land in dispute in their amended joint statement of defence. In any case, a plaintiff or claimant can prove the identity of land in dispute in any of the following two ways:-
1. By the plaintiff adducing oral evidence describing the land in dispute that a surveyor, acting on the strength of the description, can make a plan of the land; or
2. By the plaintiff filing a survey plan of the land in dispute with its boundaries.
See Udofia v. Afia (1940) 6 WACA 216; Kwadzo v. Ajei (1944) 10 WACA 274 and Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1.
In this case, the respondents pleaded and tendered their amended litigation plan as exhibit ?P4?. The appellants also pleaded and tendered a litigation plan which was admitted by the trial Court as exhibit ?D5?. The trial Court was eminently right when it held on pages 8 to 9 of the record of appeal as follows:-
Both parties filed litigation survey plans and there is no dispute as to the identity of the land in dispute as both parties identified the land and both agreed that the parcel of land is at the intersection of the new and Old Ora/Uzebba/Ifon Roads which is triangular in shape. Both plans commonly showed the parcel of land in dispute. But what is in dispute is more than the parcel of land verged red in the litigation survey plans of the parties. The main dispute in this case is as to boundary between the two committees.?
I have read the judgment of the trial Court and it is obvious that it duly gave effect to exhibit D3, which it erroneously described as exhibit D2; when it held and stated, inter alia, on pages 11 to 12 of the record as follows:
Both parties claim to be in possession of the land in dispute. The defendants proferred evidence to show that they are in possession and they rely on exhibit D2, a letter written by the Local Government Council seeking for permission to put a refuse dump site on the parcel of land after the land in dispute, and that they had allocated/sold portions of the land adjacent to the land in dispute to persons as in exhibit D1. They also claim that the cemetery adjacent to the land was put there by them and for the use of Avbiosi people.
Whereas the claimants on their part said that the cemetery adjacent to the land is their own and proferred evidence as to the persons who of the claimant community that had been buried there. They also stated that when the defendants sold part of the land in dispute to one Ogedengbe Iwolagbe, the sale was resisted by them as the claimants filed a suit against him in suit No. HSO/11/2010 which they later withdraw on the death of the said Iwolagbe in a ghastly motor accident.?
The trial Court, however, relied on the cases of Mogaji v. Odofin (1978) 4 SC 91; Adanyi v. Anwase (2006) 12 NWLR (Pt. 993) 183 at 200; Ameen v. Amao (2013) 222 LRCN (Pt. 2) 119 at 139 and Olusanya v. Osinleye/Osinleye (2013) 225 LRCN (Pt. 1) 71 at 95 and concluded that:-
It is however the law that where two parties claim to be in possession of land, the law ascribe possession to the one that has a better title.
For all the reasons given above, I hereby resolve the live issue in this appeal in favour of the respondents and against the appellants.
Having resolved the germane and all-embracing issue in this appeal against the appellants, the appeal ought to be dismissed. This appeal is hereby, accordingly, dismissed for it is devoid of merit.
The judgment of the trial Court, per Hon. Justice H.A. Courage-Ogbebor, delivered on the 30th day of April, 2014 in Suit No. HSO/12/2010 is hereby affirmed.
The sum of N150, 000.00 (one hundred and fifty thousand naira only) is hereby awarded as costs in favour of the respondents and against the appellants.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the Judgment of my learned brother MOORE ASEIMO ABRAHAM ADUMEIN JCA and I completely agree with his reasoning and conclusion that the appeal ought to be dismissed as completely devoid of merit.
There is no doubt that the learned trial Judge comprehensively evaluated the traditional evidence adduced by the Respondents which having read the Record, I also agree was not seriously disputed by the Appellant during the trial.
I have no reason to interfere with the findings of fact made by the learned trial Court since it is within the purview of the trial Court to assess the evidence before it and to ascribe appropriate probative value thereto. It is also completely misconceived for Appellant’s counsel to argue the issue of lack of identity Of the land in dispute on appeal when the Suit was brought on litigation Survey plans filed by both parties. In this case, there was no denial of the identity, location or boundaries of the land in dispute. What was disputed is the ownership of the land.
Throwing up the issue of identity of the land in dispute on appeal has become a favourite ploy of appellant?s counsel whether legally plausible or not. Very unfortunate. In any event, the judgment of the trial Court delivered by Hon. Justice HA. Courage-Ogbebor delivered on 30/4/14 in suit No: HSO/12/2010 is hereby affirmed. Appeal Dismissed.
I abide by the order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now the leading judgment just delivered by my learned brother MOORE ASE-IMO ABRAHAM ADUMEIN, JCA.
I agree with the reasoning and conclusion contained therein to the effect that the appeal lacks merit and should be dismissed. I have nothing extra to add.
I also dismiss the appeal. I abide by the consequential orders made in the lead judgment including the order as to cost.
Appearances:
E.O. Afolabi, Esq. with him, J.S. Ohiafi and S.U. Enyawhuile, Esq.For Appellant(s)
G.O. Giwa-Amu, Esq. with him, N.D. Ugiagbe, Esq.For Respondent(s)
Appearances
E.O. Afolabi, Esq. with him, J.S. Ohiafi and S.U. Enyawhuile, Esq.For Appellant
AND
G.O. Giwa-Amu, Esq. with him, N.D. Ugiagbe, Esq.For Respondent
