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ALHAJI IDRIS ALAYA & SONS (NIG) LTD & ANOR v. ILORIN WEST LGA (2022)

ALHAJI IDRIS ALAYA & SONS (NIG) LTD & ANOR v. ILORIN WEST LGA

(2022)LCN/16184(CA)

In the Court of Appeal

(ILORIN JUDICIAL DIVISION)

On Friday, March 04, 2022

CA/IL/31/2021

Before Our Lordships

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

1. ALHAJI IDRIS ALAYA & SONS NIGERIA LIMITED 2. ALHAJI IDRIS ALAYA APPELANT(S)

And

ILORIN WEST LOCAL GOVERNMENT AREA (LGA) RESPONDENT(S)

 

RATIO

THE BURDEN OF PROOF IN CIVIL CASES

The burden to establish a claim in any case is on the Claimant. He must establish his claim upon the strength of his own case and not upon the weakness of the case of the Defendants. The Plaintiff must therefore, satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. PER NDUKWE-ANYANWU, J.C.A. 

THE DUTY OF THE CLAIMANT SEEKING RELIEFS IN CASES PERTAINING TO LAND

In almost all cases pertaining to land, the Claimant seeking reliefs must prove his title to the land or prove that he had been in exclusive possession on the disputed land.
A Claimant claiming trespass to land either as the owner or a person in possession must prove to the satisfaction of the Court that it has a better title.
​In proof of these, the Appellants have a primary duty placed on them to show the Court clearly, the area of land to which their claim, relates so that the land can be identified with certainty. See IORDYE VS. IHYAMBE (2000) 12 SC PT. II, PG. 126, GBADAMOSI VS. DAIRO (2007) 3 NWLR PT. 1021, PG. 282, DADA VS. DOSUNMU (2006) 18 NWLR PT. 1010, PG. 134, ONISAODU VS. ELEWUJU (2006) 13 NWLR PT. 998, PG. 517, AJIBOYE VS. ISHOLA (2006) 13 NWLR PT. 996, PG. 628.
It has been held in many cases that a Plaintiff who fails to give the exact extent and identity of the land he is claiming, his action should be dismissed. See GBADAMOSI VS. DAIRO (Supra); ARABE VS. ASANLU (1980) 5 – 7 SC PG. 78.
PER NDUKWE-ANYANWU, J.C.A. 

THE CONDITION PRECEDENT TO THE SUCCESS OF THE CLAIMS FOR DECLARATION OF TITLE TO LAND 

Thus, it is the duty of a Plaintiff in a claim for declaration of title to land to establish with certainty and accuracy the identity of the land he claims.
This is a condition precedent sine qua non to the success of the claims. See OTANMA VS. YOUDUBAGHA (2006) 2 NWLR PT. 964, PG. 337.
The Appellants have not in their pleadings or their evidence viva voce being able to state the size of the land or identify with certainty. See OGBUAGU, JSC (of blessed memory) in OGEDENGBE VS. BALOGUN (2007) LPELR 2297 held:
“It is now firmly settled in a plethora of decided authorities, that land to which a declaration of title is sought, must be sufficiently identified. See the case of EZEOKEKE VS. UGA (1962) 1 ANLR PT. 1, PG. 482. In other words, in a claim of title, it must be made to a defined area, with certainty. See the case of RUFAI VS. RICKETTS (1934) 2 WACA PG. 95. It is also settled that before a declaration of title is given, the land which it relates, must be ascertained with certainty. The test being whether a Surveyor, can from the record, produce an accurate plan. See the cases of KWADZO VS. ADJEI (1944) 10 WACA PG. 274, ARE VS. OBALARO (1968) NMLR PG. 238, ARABE VS. ASANLU (1980) 5 – 7 SC PG. 78, UDOFIA VS. AFIA (1940) 6 WACA PG. 216, OKORIA VS. UDOM (1960) 4 FSC PG. 162, OKE VS. EKE (1982) 12 SC PG. 218, AIYEOLA VS. PEDRO (2014) LPELR 22915. Also BELGORE, JSC in AUTA VS. IBE (2003) LPELR 640 held inter alia:
“In a case for declaration of any right or title over land, that land must be described with certainty so that the parties are ad idem as to its identity. This is because a party will not be found to litigate on unidentifiable object. A Survey Plan or Clear Map of the area of land in dispute is identified, or land features, streams, rivers, hills, historical, monuments, trees and other permanent or semi-permanent objects are clearly pleaded and identifiable on the land in dispute. See IMAH VS. OKOGBE (1993) 9 NWLR PT. 316, PG. 159; OLUSANMI VS. OSHASONA (1992) 6 NWLR PT. 245, PG. 22; BARUWA VS. OGUNSHOLA (1938) IV WACA PG. 159. It is cardinal principle in land disputes to clearly indicate the identity of the land, even if by boundary neighbours whose evidence can clearly show the land in a visit to locus in quo. See OKORIE VS. UDOM (1960) SCNLR PG. 326, BRIGGS VS. BRIGGS (1986) 5 NWLR PT. 41, PG. 362.”
PER NDUKWE-ANYANWU, J.C.A. 

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kwara State delivered on 12th January, 2021 by E. B. MOHAMMED, J.

The Appellants herein were the Claimants in the Court below.
The Claimants sought the following reliefs:
a) A declaration that only 7.5 hectares of land belonging to the 1st (claimant at Ita-Elepa Area, Ilorin covered by the grant of right of occupancy issued on 9th April, 1981 by the Ministry of Housing and Environment, Land Division, Ilorin, Kwara State was the subject matter of discussion between the claimants and the defendant and that the defendant lacks the competence to revoke the right of the 1st claimant in respect of the said land.
b) A declaration that the right of the 1st claimant in respect of the land covered by a grant of a right of occupancy no: KW 3775 issued on 9th April, 1981 by the Ministry of Housing and Environment, Land Division, Ilorin, Kwara State is still valid and subsisting.
c) A declaration that the right of the 1st claimant in the land at Ita Elepa, Ilorin covered by a grant of a right of occupancy no: 3775 dated 9th April, 1981 and issued by the Ministry of Housing & Environment, Land Division, Ilorin, Kwara  State has not been lawfully revoked or acquired by the defendant.
d) A declaration that the defendant lacks the competence to revoke or acquire the interest of the 1st claimant contained in the grant of a right of occupancy NO 3775 dated 9th April, 1981 issued by the Ministry of Housing and Environment, Land Division, Ilorin, Kwara State.
e) A declaration that the right of the 2nd claimant in his land at Ita Elepa/Baba Ode is still subsisting and valid.
f) A declaration that the defendants’ acquisition or encroachment of the claimants’ land at Ita-Elepa/Baba Ode Ilorin is unlawful, unconstitutional, null and void.
g) A declaration that the sale and allocation of plots of land from the claimants’ land at Ita-Elepa/Baba Ode, Ilorin to individuals are most improper, unlawful, unconstitutional, null and void.
h) The sum of N10million against the defendant: as general damages for trespass on the claimants’ land at Ita Elepa/Baba Ode, Ilorin.
i) Order of perpetual injunction restraining the defendant, whether by herself, agents, privies or assigns from further trespass on the land of the claimants at Ita Elepa/Baba Ode Area Ilorin.

In proof of its case against the Respondent, the 2nd Claimant testified for the Claimants and called no other Witness. His testimony was that at various times in 1977, he bought three (3) pieces of land and was issued Exhibits C1, C2, & C3 as Receipts for the purchase. The 2nd Appellant subsequently transferred his interest in the land to the 1st Appellant, who applied for a Statutory Right of Occupancy (R of O). This Right of Occupancy (R of O) was issued by the Governor of Kwara State as NO. KW 3775. The 2nd Appellant in his evidence stated that the 1st Appellant constructed a Warehouse while the 2nd Appellant farmed on part of the land.

The Respondent allegedly revoked the land and allocated same to private individuals and companies.

The Appellants instituted this suit claiming the above reliefs recapped above.

The Respondent in its defence called a total of five (5) Defence Witnesses (DWs). Both parties closed their cases and filed their Written Addresses. The learned trial Judge delivered his considered judgment and held thus:

1) That the Appellants’ land which was revoked by the Respondent was null and void. Reliefs (C) and (D).

The Court however, dismissed Reliefs (a), (b), (e), (f), (g), (h), and (i) as having not been proved satisfactorily.

The Appellants were naturally aggrieved by this judgment and hence this appeal.

The Appellants filed their notice with twelve (12) Grounds of Appeal on 17th February, 2021. The Appellants filed his Appellants’ Brief of Argument on 16th June, 2021. Also, filed was the Appellants’ reply brief on 26th November, 2021 but deemed properly filed and served on 18th January, 2022. The Appellants in their brief articulated two (2) Issues for determination as follows:-
ISSUES FOR DETERMINATION:
1. Whether the trial Court was right to have held that the Appellants failed to discharge the burden of proof placed on them to prove the identity and root of title of the land in dispute as required in a claim for Declaration of title to land. (This issue is distilled from Grounds 1, 2, 5, 6, 7, 8, 9, 10, 11 and 12 of the Grounds of Appeal)
2. Whether the trial Court was right when it dismissed the Appellants’ claims for damages for trespass and injunction against the Respondent. (This issue is distilled from Grounds 3 and 4 of the Grounds of Appeal)

The Respondent filed its Brief of Argument on 27th October, 2021 but deemed properly filed and served on 28th October, 2021. In it, the Respondent articulated two (2) Issues for determination as well:
1. Whether having regards to the pleadings and evidence on record, the learned trial Judge was not right in dismissing the claims of the Appellants as endorsed on paragraphs 28 (a), (b), (e), (f), (g), (h) and (i) of the Statement of Claim for failure of proof. (Grounds 1, 2, 5, 6, 7, 8, 9, 10, 11 & 12).
2. Whether the learned trial judge was not right in dismissing the Appellants’ claim for damages for trespass and injunction when the Appellants have failed to prove the identity of the land. (Grounds 3 and 4).

The Appellants are the natural owners of this appeal and as such, I will utilize their Issues in the determination of this Appeal.

ISSUE 1:
Learned Counsel to the Appellants submitted that the Appellants were not seeking for declaration of title but an order to declare the revocation of the land in issue a nullity. Counsel stated that the Court was wrong in holding that the Appellants did not identify satisfactorily the land in dispute. Proof of the identity of the land in dispute is not necessary, if the land is well known to both parties. See KOTUN VS. ALAKA (2019) LPELR 46755.

Counsel reiterated that by the evidence of DW1 and DW5, the land in dispute is known to both parties. See AKINYEMI VS. ABIODUN OJO (2011) ALL FWLR PT. 588, PG. 997 AND GOVERNOR OF LAGOS STATE VS. OHAIGO (NIGERIA) LIMITED (2018) LPELR 45552.

Counsel argued further that it is immaterial whether it is called Ita-Elepa or Baba – Ode by the parties. Both parties are indeed referring to the same land. Counsel referred to the locus classicus of IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC PG. 227, where the Supreme Court stated the five (5) ways of proving title to land. With that, Counsel opined that the Appellants established their case by one of the five ways i.e. by tendering Exhibits C1, C2, C3, and C8.

Also, PW1, the 2nd Appellant, stated in evidence that his Vendors were the owners of the land. Also, that the Appellants had enjoyed the land by allocating part of the land to the 1st Appellant and also by farming on parts of the land.

Counsel submitted that the Respondent never challenged the Appellants’ assertion that they were enjoying acts of possession on the land. Also, that the learned trial Judge was in error when he considered the evidence of DW3 as that of the land owner thereby, reaching a wrong conclusion.

Counsel submitted that the trial Court ought to have accepted Exhibits C1, C2, C3, and C8 in proof of the ownership of the land in dispute in favour of the Appellants. Also, that the Appellants sufficiently proved their title to the land and deserving of all the reliefs sought. See SUU VS. JOBAK (NIGERIA) LIMITED (2012) 49 WRN PG. 101, where the Court held:
“…The Appellant (the Claimant in the lower Court) had done all that the law required him to do in order to be granted the reliefs sought in the lower Court. The Appellant was able to trace his root of title to the original owner, one Alhaji Akanbi Ita – Ayisat and to his family from time immemorial … he had also pleaded and proved title by tendering purchase receipts Exhibit P1 and shown that he had been in possession of the piece or parcel of land undisturbed for many years…”

Counsel complained that the learned trial Judge never bothered to visit the locus in quo to ascertain the evidence proffered in Court. See NWANKPU VS. EWULU (1995) LPELR 2107.

Counsel submitted that the Court delved into the issue of validity of the issuance of the Right of Occupancy NO. KW 3778 (Exhibit 8) as the Respondent never challenged that.

Counsel further submitted that the learned trial Judge should have limited itself to issues raised by the parties. See MARTCHEM IND. (NIGERIA) LIMITED VS. M. F. KENT (W. A.) LIMITED (2005) ALL FWLR PT. 271, PG. 23, where the Court held:
“It is a fundamental principle that in the determination of disputes between parties, judgment must be confined to the issues raised by parties in the pleadings.”

Counsel then urged the Court to resolve this issue in favour of the Appellant.

In response, the Respondent’s Counsel submitted that a party seeking declaratory Reliefs to a parcel of land must plead and strictly prove to be entitled to those declaratory reliefs. See EKE VS. OKWARANYIA (2001) FWLR PT. 51, PG. 1974; NWOKEDIASO VS. ONUOHA (2001) FWLR PT. 59, PG. 1326.

The Appellants must also establish their title to the land through credible evidence. See ORUNENGIMO VS. EGEBE (2008) ALL FWLR PT. 100, PG. 655; OYEDEJI VS. OYEYEMI (2008) ALL FWLR PT. 445, PG. 1769.

The burden is always on the Claimant to establish his case. See S. 131 Evidence Act, 2011, DAUDU VS. NNPC (1998) 1 SCNJ PG. 95, JACK VS. WHYTE (2001) 3 SCNJ PG. 55.

Counsel submitted that the Appellants ought to establish the identity of the land including the precise size and boundaries of the disputed land. See ODUNZE VS. NWOSU (2007) 13 NWLR PT. 1050, PG. 1. See also, TSONFADA VS. ZUBAIRU (CA/IL/19/2019).

The land agreements do not also have the size and specifications of the land. A person who seeks declaratory Relief must as a matter of great importance give with precision the identity of the land in dispute. See OGUNNISA VS. OGUNLEYE (1994) 5 NWLR PT. 346, PG. 625; ODOFIN VS. ONI (2001) 3 NWLR PT. 701, PG. 488; EKPEMUPOLO VS. EDREMODA (2009) ALL FWLR PT. 473, PG. 1220, where the Supreme Court held:
“A declaration of title to a piece of land can only be granted if the definite, precise and accurate boundaries of it are established. The onus of proof lies on the plaintiff who seeks a declaration of title to land and for an injunction to establish with certainty and precision the area of land to which the claim relates.”

See also YAKUBU VS. JAUROYEL (2005) ALL FWLR PT. 283, PG. 184, ATANDA VS. ILIASU (2013) 18 WRN PG. 1, GARBA VS. CHIBIRI (2013) LPELR 22614.

Counsel therefore urged the Court to resolve this issue in favour of the Respondent.

ISSUE 2:
Learned Counsel to the Appellants submitted that in a claim of trespass, it is not dependent on the claim for declaration of title. The only thing needed is to establish exclusive possession on the part of the Claimant. See AKPELU VS. CHUKWU (2005) ALL FWLR PT. 269, PG. 1878; ADEWOLE VS. POPOOLA DADA (2003) FWLR PT. 157, PG. 1055, where the Supreme Court held as follows:
“It is settled law that a claim for trespass as in this case, is not dependent on the claim for declaration of title because the issues to be decided on the claim for trespass are whether the Plaintiff has established his actual possession of the land and the Defendant trespassed on it.”

The Appellants have given in evidence that the 2nd Appellant and his family members had been cultivating this land since 1977 unchallenged. This evidence was also not challenged by the Respondent. See CAMEROON AIRLINES VS. OTUTUIZU (2011) ALL FWLR PT. 570, PG. 1286.

Counsel argued that the learned trial Judge was wrong when he held that the Appellants had not proved that the 2nd Appellant and his family members were cultivating on the disputed land. See KAIGAMA VS. NAMNAI (1997) 3 NWLR PT. 475.

Also, that the trial Court ought to have awarded the Appellants’ damages as they had proved that the Respondent had already allocated the land to other people when they were already in exclusive possession before this incursion. See OKONKWO VS. OGBOGU (1996) LPELR 2486.

Counsel urged the Court to hold that the trial Court was wrong to have dismissed their claims on damages. Counsel urged the Court to resolve this issue in favour of the Appellants and allow this appeal.

In response, the Respondent submitted that it is settled law that in a case of declaration relating to rights, interest or title to land, a party who relies on traditional evidence in proof of title, must plead and prove its root of title to the land with cogent, credible and convincing evidence. See MOGAJI VS. CADBURY FRY (EXPORT) LIMITED (1985) 2 NWLR PT. 7, PG. 393, AJIBONA VS. KOLAWOLE (1996) 10 NWLR PT. 476, PG. 22, NGENE VS. IGBO (2000) LPELR 1987 AND ANUKAM VS. ANUKAM (2008) ALL FWLR PT. 413, PG. 1255.

The Appellant did not plead the original owners of the land as captured in Exhibits C1, C2 and C3.

Counsel also argued that Ita – Elepa is not part of Baba – Ode. Counsel argued that it is trite law that for a Claimant to succeed in his claim for declaratory reliefs and damages, the identity of the land must be certain. A party must succeed in identifying the land trespassed upon before his claim for damages can be considered.

Also, the Appellants must prove that as at the time of trespass, the Appellants were in possession of the land the Respondent has trespassed. See BABATOLA VS. ALADEJANA (2001) 12 NWLR PT. 728, PG. 597; IMAH VS. OKOGBE (1993) 9 NWLR PT. 316, PG. 159; OGUNDIPE VS. AWE (1988) 1 NWLR PT. 68, PG. 118.
Counsel finally, urged the Court to hold that the trial Court was right in holding that the Appellants failed to prove the exact area of the disputed land. Counsel finally urged the Court to resolve this issue in favour of the Respondent and dismiss this appeal.

RESOLUTION:
The burden to establish a claim in any case is on the Claimant. He must establish his claim upon the strength of his own case and not upon the weakness of the case of the Defendants. The Plaintiff must therefore, satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought.

The Appellants in this Appeal have gone to great lengths to insist that they are not seeking a declaration of title but have led evidence to that effect.

In almost all cases pertaining to land, the Claimant seeking reliefs must prove his title to the land or prove that he had been in exclusive possession on the disputed land.
A Claimant claiming trespass to land either as the owner or a person in possession must prove to the satisfaction of the Court that it has a better title.
​In proof of these, the Appellants have a primary duty placed on them to show the Court clearly, the area of land to which their claim, relates so that the land can be identified with certainty. See IORDYE VS. IHYAMBE (2000) 12 SC PT. II, PG. 126, GBADAMOSI VS. DAIRO (2007) 3 NWLR PT. 1021, PG. 282, DADA VS. DOSUNMU (2006) 18 NWLR PT. 1010, PG. 134, ONISAODU VS. ELEWUJU (2006) 13 NWLR PT. 998, PG. 517, AJIBOYE VS. ISHOLA (2006) 13 NWLR PT. 996, PG. 628.
It has been held in many cases that a Plaintiff who fails to give the exact extent and identity of the land he is claiming, his action should be dismissed. See GBADAMOSI VS. DAIRO (Supra); ARABE VS. ASANLU (1980) 5 – 7 SC PG. 78.

The Appellants in their arguments claimed that the land in dispute was referred to as Ita – Elepa or Baba – Ode.

The Respondent had a different view. See the evidence of the Respondent that Baba – Ode family was the owners of the land in issue as against the Ita – Elepa Family. It is obvious that the identity and ownership of the land in dispute is in issue. Therefore, it is paramount that the Appellants must identify the land with certainty. The Appellants’ Exhibits C1, C2, and C3, did not show with any accuracy, the size, location, dimensions and boundaries of the pieces of land or their collective dimension.

Thus, it is the duty of a Plaintiff in a claim for declaration of title to land to establish with certainty and accuracy the identity of the land he claims.
This is a condition precedent sine qua non to the success of the claims. See OTANMA VS. YOUDUBAGHA (2006) 2 NWLR PT. 964, PG. 337.
The Appellants have not in their pleadings or their evidence viva voce being able to state the size of the land or identify with certainty. See OGBUAGU, JSC (of blessed memory) in OGEDENGBE VS. BALOGUN (2007) LPELR 2297 held:
“It is now firmly settled in a plethora of decided authorities, that land to which a declaration of title is sought, must be sufficiently identified. See the case of EZEOKEKE VS. UGA (1962) 1 ANLR PT. 1, PG. 482. In other words, in a claim of title, it must be made to a defined area, with certainty. See the case of RUFAI VS. RICKETTS (1934) 2 WACA PG. 95. It is also settled that before a declaration of title is given, the land which it relates, must be ascertained with certainty. The test being whether a Surveyor, can from the record, produce an accurate plan. See the cases of KWADZO VS. ADJEI (1944) 10 WACA PG. 274, ARE VS. OBALARO (1968) NMLR PG. 238, ARABE VS. ASANLU (1980) 5 – 7 SC PG. 78, UDOFIA VS. AFIA (1940) 6 WACA PG. 216, OKORIA VS. UDOM (1960) 4 FSC PG. 162, OKE VS. EKE (1982) 12 SC PG. 218, AIYEOLA VS. PEDRO (2014) LPELR 22915. Also BELGORE, JSC in AUTA VS. IBE (2003) LPELR 640 held inter alia:
“In a case for declaration of any right or title over land, that land must be described with certainty so that the parties are ad idem as to its identity. This is because a party will not be found to litigate on unidentifiable object. A Survey Plan or Clear Map of the area of land in dispute is identified, or land features, streams, rivers, hills, historical, monuments, trees and other permanent or semi-permanent objects are clearly pleaded and identifiable on the land in dispute. See IMAH VS. OKOGBE (1993) 9 NWLR PT. 316, PG. 159; OLUSANMI VS. OSHASONA (1992) 6 NWLR PT. 245, PG. 22; BARUWA VS. OGUNSHOLA (1938) IV WACA PG. 159. It is cardinal principle in land disputes to clearly indicate the identity of the land, even if by boundary neighbours whose evidence can clearly show the land in a visit to locus in quo. See OKORIE VS. UDOM (1960) SCNLR PG. 326, BRIGGS VS. BRIGGS (1986) 5 NWLR PT. 41, PG. 362.”
It has been categorically stated in a plethora of cases that any dispute on land, it is paramount that the land must be ascertained clearly. The Appellants have strenuously submitted that they were not seeking a declaration of title and as such the identity of the land is not necessary. This cannot be right as the Appellants are also seeking some declaratory Reliefs on the land in dispute. Where would the declaration attach?
It therefore goes without gainsaying that any dispute on land, the Claimant must as a matter of expediency identify the land with certainty. Where in a land case, the area of land in dispute is well known to both sides, the issue of proof of it does not then arise. See OSHO VS. APE (1998) 8 NWLR PT. 562, PG. 492.
​The Plaintiff has a duty to prove the precise area to which his claim relates. However, that burden will not arise where the identity of the land in dispute was never a question in issue. That issue will only arise where the Defendant raised it in his Statement of Defence and supported with evidence. See DADA VS. DOSUNMU (2006) 18 NWLR PT. 1010, PG. 134; OGUN VS. AKINYELU (2004) 18 NWLR PT. 905, PG. 362; OTANMA VS. YOUDUBAGHA (Supra).
In this appeal, the identity of the land was made an issue by the Respondent who argued strenuously that they do not know the area of land in dispute. The Respondent even claimed that they paid the Appellants compensation for 7.5 Hectares but they gave up only 5.7 Hectares.
This clearly shows that there is need to identify the land with certainty.
The Appellants have in their brief, argued that Ita – Elepa and Baba – Ode are one and the same land. That the land is the same. That the names are used interchangeably by all. However, the Respondent through the evidence of DW2, DW3, DW4 and DW5 testified that the land in issue which it acquired from the original land owners is located and situate at “Baba – Ode and not at Ita – Elepa”. Also, DW3, the Magaji and Customary Land owner of Baba – Ode Village stated categorically, “that Baba – Ode land was not part of the land bought by the Appellants”. Also, that Ita – Elepa is not part of Baba – Ode Village. The Respondent also pleaded and led evidence that Ita – Elepa is not part of Baba – Ode.
All these controversies go to show that the identity of the land in dispute is very important. Thus, the Appellants failed to properly identify the land in dispute. The learned trial Judge was right when he held that the Appellants failed to identify the land in issue to which their claim for trespass and declaratory Reliefs would attach to.

The Appellants in this appeal as part of his declaratory Reliefs which needed that the Appellants must prove their title to the supposed land in dispute. For even possession, the Appellants had to prove a better title than the supposed trespasser.

In proof of this, the Appellants pleaded that the 1st Appellant was the holder of a Right of Occupancy over a piece of land measuring about 26.04 Hectares at the Ita – Elepa. This land is covered by a grant of Right of Occupancy No. 3775. The 2nd Appellant described the land that its location is not far from the major Road leading to Offa after branching toward Asa – Dam Road, Ilorin.
The 2nd Appellant in their pleadings pleaded the agreements, Exhibits C1, C2, and C3, that he bought from the land owners without more. The Law Reports are replete with the fact that there are five ways of establishing title to land or ownership of it thereof. The Appellants must therefore, satisfy the Court that upon their pleadings and evidence adduced by them they are entitled to the declaration sought.
See GBADAMOSI VS. DAIRO (2007) 3 NWLR PT. 1021, PG. 282, DADA VS. DOSUNMU (2006) 18 NWLR PT. 1010, PG. 134, ONISAODU VS. ELEWUJU (2006) 13 NWLR PT. 998, PG. 517 AND AJIBOYE VS. ISHOLA (2006) 13 NWLR PT. 996, PG. 628.

The Appellants tried to prove their title to the land in dispute by tendering their Right of Occupancy from the Kwara State Government No. KWS 3775. Also, the land was bought in 1977 in three parts as Exhibits C1, C2, and C3, before registering them as KWS 3775 of 9th April, 1981.

The Respondent in its Amended Statement of Defence, referred to Paragraphs 4 – 7 of the Appellants’ Statement of Claim where it pleaded their root of title. Paragraphs 3 – 5 of the Amended Statement of Defence reads:
(3) The defendant denies paragraphs 4, 5, 6 and 7 specifically and avers that all the parcels of land located at Ita-Elepa are under the direct administration and management of the defendant.
(4) The defendant avers that all parcel of land alienated to any person or persons by the customary land owners are covered by PERMIT TO ALIENATE LAND ISSUED BY THE DEFENDANT.
(5) The defendant will content at the trial of this suit that the purported Right of Occupancy No KW3225 with Ref. No. LAN/ARO/IND/460/VOL.III/40 alleged to have been issued by the Ministry of Housing and Environment, Land Division, Ilorin on 9th April, 1981 was wrongfully issued.

With these averments in Paragraphs 3 – 5 of the Amended Statement of Defence, the Respondent had joined issues with the Appellants on their title to the land, the subject matter of this Appeal. The Appellant’s traced its root of title to the supposed land owners he bought the three plots of land C1, C2, and C3, upon which the 2nd Appellant applied to the Kwara State Government for a Right of Occupancy.

It is trite that a Plaintiff who seeks declaration of title to land must prove his root of title to the land. Where he traces his title to a particular person, he must further prove how that person got his own title or came to have title vested in him, including, where necessary, the family that originally owned the land. The burden of proof on the Plaintiff is not discharged even where the scales are evenly weighted by the parties. See DIKE VS OKOLOEDO (1999) 10 NWLR PT. 623, PG. 359 AND OTANMA VS. YOUDUBAGHA (2006) 2 NWLR PT. 964, PG 337.

The Appellants could not trace their title beyond the supposed Vendors of land covered by Exhibits C1, C2 and C3 that culminated in the Right of Occupancy No. 3775 Exhibit (C8).

It is trite law that a Plaintiff who pleads a particular root of title and fails to prove that particular root of title cannot rely on another mode of acquisition of land not pleaded by him. See UDE VS. CHIMBO (1998) 12 NWLR PT. 577, PG. 169.

The Appellants in this appeal sought to prove that they were in exclusive possession of the land before the trespass of the Respondent. The 2nd Appellant testified that he transferred part of the land to the 1st Appellant to build a Warehouse. He also claimed that he and his family farmed the rest of the land. It is doubtful if this is so as he did not know when the supposed trespass started. He claimed that private people and companies were allocated part of the land by the Respondent. Some of the Allotees have already started putting up structures before he knew. The Respondent had also had series of meetings with the supposed landowners and compensation paid and including to the 2nd Appellant. The 2nd Appellant could not have been in actual possession and he could not prove that exclusive possession to be entitled to damages in trespass.

I am aware that to claim damages for trespass to land might not amount to a claim for declaration of title to the land. The Claimant only needs to prove that his properties or crops were damaged on the land to succeed. Accordingly, it would be totally erroneous to hold that the occupiers were not entitled to succeed because they failed to prove title to land. See IBATOR VS. BARAKURO (2007) 9 NWLR PT. 1040, PG. 475.

The learned trial Judge in his judgment held that the Appellants could not identify the land in dispute at all. One of the prerequisites of proving title to land or possession is to ascertain the size and the boundaries. Where the Appellants fail to do so, their claim ought to fail. See FAGUNWA VS. ADIBI (2004) 17 NWLR PT. 903, PG. 544.

The Appellants complained that the learned trial Judge did not request for a visit to the locus in quo which the Appellants argued that it was a major slip. The Appellants however, did not apply for a visit to the locus in quo. The BLACK LAW DICTIONARY, 8th Edition at page 959 defined the words locus in quo as follows:
“The place where something is alleged to have happened or occurred.” See OLAGOKE VS. OLANIYAN (2017) LPELR 45574.
The trial Judge may suo motu decide to visit the locus in quo with a view to clearing any doubts or ambiguities that may arise in the evidence as regards physical features, however, it is always preferable for the party who believes that his case might be better appreciated to apply to the Court to visit the locus in quo. The Appellants did not apply to the Court for a visit to the locus in quo. Also, the Respondent did not either. See IPINLAIYE II VS. OLUKOTUN (1996) 6 KLR PT. 42, PG. 1000; NNAEMEKA AGU, JSC in ANYANWU VS. MBARA (1992) LPELR 516 cautioned: “The situation in a visit to the locus in quo in a land case, it is a course which a judge can take only with due caution – with full advertence to the fact that as he is not a party in the case it is belief for one of the parties to apply for it. But where, from the quality and quantity of the evidence called by both sides he finds himself in a position in which, without supplementing what he has heard with what he can see, he can only accredit one version of the conflicting evidence and discredit the other mechanically, he should bring to the notice of the parties the need for a visit to the locus and get their consent or acquiescence to it.”
In the Court below, there was no controversy between the parties as to what was on the locus. If there had been need, the Appellants should have requested for such a visit. This assertion that the trial Court did not visit the locus in quo was an afterthought of the Appellant. If the 2nd Appellant thought there was a need, he would have applied for the visit at the trial Court. Having failed to apply for a visit, it would be taken that the 2nd Appellant did not see the need.
The Respondent in his pleadings and evidence viva voce by the DWs, challenged the Appellants’ title to land. The Respondent questioned the right of the supposed vendors for the land covered by Exhibits C1, C2 and C3. The Appellant could not go beyond the vendors in proof of his title to the land. The 2nd Appellant argued that he was not claiming for a declaration of title and as such did not make any further effort in proving the root of title of his vendors.

The Appellants, I dare say, failed to prove to the satisfaction of the Court that he has a good title. However, it has been settled that a claim for trespass is not dependent on the success of a claim for declaration of title. A Plaintiff can succeed in a claim for damages for trespass and injunction even where his claim for a declaration of title fails. The Court can still maintain and uphold an action or claim for trespass and injunction if possession is established. See BALOGUN VS. AKANJI (2005) 10 NWLR PT. 933, PG. 394; UDE VS. CHIMBO (1998) 12 NWLR PT. 577, PG. 169; OKHUAROBO VS. AIGBE (2002) 9 NWLR PT. 771, PG. 29.

​The Appellants gave in evidence that he was in active and exclusive possession of the land in dispute. The 2nd Appellant claimed he transferred part of the land to the 1st Appellant to build a Warehouse. He also claimed that he was farming on the land with his family without more. He did not show the Warehouse built or whether it was built at all. What type of farming was the 2nd Appellant involved with? It took the 2nd Appellant a considerable length of time to discover that his so-called land was trespassed by the Respondent. It took the Respondent several months to meet with the land owners. The Respondent dealt with the Family Head of Ita-Elepa, Madaki. They had several meetings spanning over a period of time. The Respondent then took out time to advertise in the National Dailies and by Radio broadcast. It took the 2nd Appellant time to find out about the supposed trespass when some of the Allotees have started building and surveying the land.

The Respondent also contended that the Right of Occupancy NO. KWS 3225 was wrongfully issued by the Government of Kwara State. The Respondent had already put into issue, the title to the supposed land in dispute. The Appellants claimed they were not requesting for a declaration of title hence, they did not prove title to the satisfaction of the Court. It would be difficult for the trial Court to find for the Appellants where their title to the land is in dispute.

Will it then be right to say that the Appellants were in exclusive possession of the disputed land? The Appellants needed to prove exclusive possession before they can claim for damages for trespass on the disputed land. The learned trial Judge in his judgment held that the Appellants failed to prove their title to and possession to any plot of land in Baba – Ode Village, where the Respondent has his own land Exhibits C1, C2, C3 and C8 can only confer title to land in Ita – Elepa not in Baba – Ode.

The Appellants were not able to prove that the Respondent destroyed their warehouse nor that they were farming on the disputed land. Also, the Appellants did not invite the learned trial Judge for a visit to the locus in quo.

The Appellants did not prove their title to the land. They did not also identify the land with certainty. The size was not given neither was the location certain, whether the land was in Ita – Elepa or Baba – Ode. See ADEPOJU VS. OKE (1999) 3 NWLR PT. 594, PG. 154; OJOMO VS. IBRAHIM (1999) 12 NWLR PT. 631, PG. 415.
The Appellants failed also to show that at the time of the alleged trespass, the Appellants were in exclusive possession to attract the damages claimed by them.
I agree totally with the learned trial Judge that in a claim for trespass and injunction, the onus is on the Claimant to prove the identity of the land trespassed upon with clarity and certainty. This is mandatory, because where an area of land is uncertain; it will be difficult and impossible to prove trespass to the land and thereafter, grant injunction. See BABATOLA VS ALADEJANA (Supra).

In all, from the foregoing, it is obvious that this appeal is without merit. It is hereby dismissed. I affirm the judgment of the lower Court in dismissing reliefs in Paragraph 28 (a), (b), (e), (f), (g), (h) and (i) of the Statement of Claim filed by the Appellants.
Appeal dismissed with cost of Two Hundred and Fifty Thousand Naira (N250,000.00) only to the Respondent.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had a preview of the judgment of my learned brother, UZO I. NDUKWE-ANYANWU, JCA and I agree with the reasoning therein and the conclusion that the appeal lacks merit. I dismiss the appeal and abide by the consequential orders.

KENNETH IKECHUKWU AMADI, J.C.A.: The position of the law is that in a case for declaration of title to land, a plaintiff must prove his claim with cogent and satisfactory evidence, which includes the establishment of the identity of the land in dispute, where the identity is in issue. See Onibudo v. Akibu (1982) 7 S.C. (Reprint) 29 and Aikhionbare v. Omoregie (1976) 12 S.C. (Reprint) 6. The Appellant situated the land in dispute at Ita Elepa/Baba Ode while the Respondent contested that and situated the land at Baba Ode Ilorin, certainly the identity of the land is in issue. Consequently, the failure of the Appellant to properly identify the land that he claims is very fatal to his case. I agree with the lead judgment of my learned brother Uzo I. Ndukwe-Anyanwu, JCA that this appeal is without merit. I also dismiss it. I abide by the consequential orders including the order as to cost made in the lead judgment. I have nothing more to add.

Appearances:

B. R. GOLD, ESQ., with him, I. M. ADEDO, ESQ. and K. A. IBRAHIM, ESQ. For Appellant(s)

WAHAB ISMAIL, ESQ., with him, A. A. GIDADO, ESQ.; Q. A. SALAUDEEN, ESQ. and QASIM YAHYA, ESQ. For Respondent(s)