DUDU ADDAH & ORS V. HASSAN SAHI UBANDAWAKI
(2015) LCN/4383(SC)
In the Supreme Court of Nigeria
Thursday, January 22, 2015
Case Number: SC.7/2012
JUSTICES:
SULEIMAN GALADIMA
MARY UKAEGO PETER-ODILI
OLUKAYODE ARIWOOLA
JOHN INYANG OKORO
CHIMA CENTUS NWEZE
APPELLANTS
EMMANUEL OGAR AKONG EDOKO
RESPONDENTS
THE STATE
RATIO
DUTY OF A PLAINTIFF TO PROVE THE IDENTITY OF LAND HE CLAIMS IN AN ACTION FOR DECLARATION OF TITLE TO LAND
It is thus, necessary for a plaintiff who claims declaration and injunction to properly and unmistakeably identify the land in dispute in view of the order for injunction which cannot certainly be granted in respect of an undefined area. Where he fails to prove the 2 boundaries of the land he asserts to be in dispute or did not satisfactorily describe the dimension and locality, or the description contradicts the plan, the proper order to make is one of dismissal of the claim. See: BARUWA VS. OGUNSHOLA [1938] 4 WACA 159; OKE VS. EKE [1982] 12 SC. 232; OKORIE VS. UDOM [1960] SCNLR 326. In OKE VS. EKE [Supra] it was held, inter alia: “A long line of authority have established that a plaintiff seeking a declaration of title to a piece or parcel of land must be able to prove its identity with certainty. The test laid down in kwadzo vs. adjei 10 WACA [1944] page 274 still holds good today. In that case the Court stated as follows: The acid test is whether a Surveyor, taking the record could produce a plan showing accurately the land to which title has been given” See further: UDOFIA VS AFIA 6 WACA [1940] page 216. PER MUHAMMAD,J.S.C.
WHETHER OR NOT THE COURT IS COMPETENT TO MAKE A CASE FOR PARTIES
A case before a Court of law belongs to the parties and not to the Court as a court is not competent to make a case for any of the parties. The Judge is an umpire and must limit himself to what is pleaded and established by the parties before him. Otherwise, he will be accused of going against the known and well cherished principles of fair trial. See: AKINSUMI VS. ADIO [1997] 8 NWLR [part 516] 277 at page 292-A. PER MUHAMMAD,J.S.C.
WHETHER OR NOT A PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS CASE IN AN ACTION FOR DECLARATION OF TITLE TO LAND
Briefly I wish to add for emphasis that the law is trite, well settled and also entrenched that the plaintiff succeeds on the strength of his case and not on the weakness of the defence. This principle is very much applicable especially where the claim is declaratory as it is in the case at hand. Plethora of authorities are well pronounced. The implication holds true therefore that a claimant who asserts to be entitled to a relief has the onus of establishing its case without regard to the defendant’s case. See Nwadiogbu V Unadozie (2001) 12 NWLR (Pt 727) 315. PER OGUNBIYI, J.S.C.
WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND
It is a well-established principle as laid down succinctly that there are five different ways of establishing title to land as enunciated in the locus classicus case of Idundun V Okumagba (1976) NMLR 200 at 210 per Fatayi-Williams JSC as he then was and of blessed memory. The five ways have been well spelt out by my learned brother in his lead judgement. The declaration sought by the plaintiffs/appellants therefore had placed on them the burden of adducing credible, admissible, convincing, positive and unequivocal evidence in support of their case. See Adeosun V Jibesin (2001) 11 NWLR (Pt 724) Page 290. PER OGUNBIYI, J.S.C.
Delivered by I. T. Muhammad, JSC I have had the privilege of reading in draft, the Judgment just delivered by my learned brother, Fabiyi, JSC. I am in agreement with him in his reasoning and conclusions. My Lords, in an action which seeks for declaration of title to land, the burden of proof of the identity and boundaries of the land in dispute is squarely on the claimant which can be discharged either by oral evidence or by survey plan showing clearly the area to which his claim relates. It is thus, necessary for a plaintiff who claims declaration and injunction to properly and unmistakeably identify the land in dispute in view of the order for injunction which cannot certainly be granted in respect of an undefined area. Where he fails to prove the 2 boundaries of the land he asserts to be in dispute or did not satisfactorily describe the dimension and locality, or the description contradicts the plan, the proper order to make is one of dismissal of the claim. See: BARUWA VS. OGUNSHOLA [1938] 4 WACA 159; OKE VS. EKE [1982] 12 SC. 232; OKORIE VS. UDOM [1960] SCNLR 326. In OKE VS. EKE [Supra] it was held, inter alia: “A long line of authority have established that a plaintiff seeking a declaration of title to a piece or parcel of land must be able to prove its identity with certainty. The test laid down in kwadzo vs. adjei 10 WACA [1944] page 274 still holds good today. In that case the Court stated as follows: The acid test is whether a Surveyor, taking the record could produce a plan showing accurately the land to which title has been given” See further: UDOFIA VS AFIA 6 WACA [1940] page 216. In the instant appeal, it is clear from the evidence that nothing cogent was placed before the trial Court to entitle the appellants to their claims. As a matter of fact, none of the [9] nine witnesses who testified for the plaintiffs gave clear evidence on the boundaries of the land in dispute as pleaded in paragraph 6 of the amended statement of claim. My Lords, I have noted that the learned trial judge in his Judgment tried to extend the description of the land in dispute different from what was pleaded and upon which evidence was given. Again, he made reference to a visit to locus inquo to the land in dispute. There is no record of the said visit to the locus inquo in the proceedings but only in the Judgment. I am afraid, the learned trial judge entered into the arena, which of course, he is if not entitled to do. A case before a Court of law belongs to the parties and not to the Court as a court is not competent to make a case for any of the parties. The Judge is an umpire and must limit himself to what is pleaded and established by the parties before him. Otherwise, he will be accused of going against the known and well cherished principles of fair trial. See: AKINSUMI VS. ADIO [1997] 8 NWLR [part 516] 277 at page 292-A. For the above reasons and the more detailed ones proffered by my learned brother, Fabiyi, JSC, in his Judgment, I too, find the Judgment of the Court below, unassailable and cannot be faulted. The appeal lacks merit and I dismiss same. I abide by consequential orders made in the lead Judgment including order on PAGE| 23 costs.
JUDGEMENT Delivered by CLARA BATA OGUNBIYI, JSC I read in draft the lead judgement just delivered by my learned brother Fabiyi, JSC and I agree that the appeal is devoid of any merit and should be dismissed. Briefly I wish to add for emphasis that the law is trite, well settled and also entrenched that the plaintiff succeeds on the strength of his case and not on the weakness of the defence. This principle is very much applicable especially where the claim is declaratory as it is in the case at hand. Plethora of authorities are well pronounced. The implication holds true therefore that a claimant who asserts to be entitled to a relief has the onus of establishing its case without regard to the defendant’s case. See Nwadiogbu V Unadozie (2001) 12 NWLR (Pt 727) 315. It is a well-established principle as laid down succinctly that there are five different ways of establishing title to land as enunciated in the locus classicus case of Idundun V Okumagba (1976) NMLR 200 at 210 per Fatayi-Williams JSC as he then was and of blessed memory. The five ways have been well spelt out by my learned brother in his lead judgement. The declaration sought by the plaintiffs/appellants therefore had placed on them the burden of adducing credible, admissible, convincing, positive and unequivocal evidence in support of their case. See Adeosun V Jibesin (2001) 11 NWLR (Pt 724) Page 290. As rightly submitted by the learned counsel representing the respondent, a party relying on evidence of traditional history must plead his root of title. He is in otherwords, required to show in his pleadings and evidence who those ancestors of his are and how they came to own and possess the land and eventually passed it on to him see Akinloye V Eyilola (1968) NMLR 92. The appellants have the onus to plead and establish by credible evidence how their fathers got the land, either by grant, settlement or conquest. It is a witness or witnesses that have the duty to give evidence and it does not lie within the competence of a court to assume the role of a witness. In otherwords, in a situation where a court proceeds to ascribe that role to itself, it will be tantamount to exceeding its constitutional duty of adjudication. Such role is not recognized in our judicial procedure. Put differently, a court cannot both be a witness as well as an adjudicator: The vivid description of the land in dispute by the trial court is not borne out on the record. No evidence of such was placed before the court. It is not open for a court to make out a case for a party where there is none. The trial court was enthusiastic in importing proceedings not made out before it and therefore not contained in the record. It is the record that is binding on all courts inclusive of the parties. Any other proceeding from without will have no relevance and must be discountenanced. It follows therefore that without proper identity, there will be no subject matter properly so to say upon which the plaintiffs’ claim could be based. No court can adjudicate on a non-existent claim. It would only be dwelling on speculation or a purported land. It is not within the trial court’s power to identify the subject matter as it would amount to making a case for a party/plaintiff. This will certainly occasion injustice to the other party and the court will be abdicating its duty in doing justice. The trial court in the circumstance did make out a case for the plaintiffs when it took upon itself to identify the land in the absence of any evidence adduced by the plaintiffs’ witnesses. The lower court could not have done any better but did properly set aside that decision. In the circumstance, it rightly acted within its power for purpose of doing justice. In reviewing the proceedings of the trial court, the appellate court is expected to take into consideration the entire record placed before it inclusive of the pleadings of parties, the day to day proceedings and also the judgement arrived thereat. The evidence of the witnesses’ identity of the land and also the visit to the locus inquo are not borne out by the record. The trial court flagrantly went on a frolic of its own and therefore greatly erred as rightly held by the lower court, which in its judgement acted correctly and within the law. I also endorse the decision in the same terms as my learned brother Fabiyi (JSC) in his lead judgement and dismiss this appeal. Appeal is hereby also dismissed by me and I affirm the judgement of the lower court. I also award costs of N100,000.00 to the respondent.
COUNSELS
I. M. Dikko (with him Amanzi F. Amanzi) for the Appellants.||Tajudeen Oladoja (with him M. I. Komolafe; Muritala Abdul-Rasheed; Isyaku Abdulrahim; Yusif Liman; Abubakar Umar and Agnes Fache-Omuya) for the Respondent.||
