EDWIN EMEH & ORS v. SIR AUGUSTINE EGENTI & ORS
(2018)LCN/12399(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of March, 2018
CA/E/408/2014
RATIO
LAND LAW: WHETHER THE ISSUE OF TITLE TO LAND IS A DECLARATORY ACTION
“And in issue of title to land, in a declaratory action, it is the plaintiffs on whom the onus lies to prove with cogent and credible evidence that he is entitled to his claim, and that the Court should wield the law in his favour. Declaratory reliefs are not granted by a Court or tribunal of law either on the basis of admission or weakness, or even absence of a defence from the adverse party, without evidence adduced to establish entitlement to the relief by the party seeking them ONU V AGU (1996) 5 SCNJ 74 @ 87. AJA V OKORO (1991) 7 NWLR (Part 203) @ 260 @ 282; OGUNJUMO V ADEMOLU (1995) 4 NWLR (PT. 389); DABUP V KOLO (1993) 9 NWLR (Pt. 317)754.” PER RITA NOSAKHARE PEMU, J.C.A.
LAND LAW: THE PERSON WHO CLAIMS TITLE TO LAND MUST PROVE
“The law is elementary that it is the Plaintiff who claims a declaration of title to land that has the duty of establishing the identity of land in respect of which he seeks the declaration and not the defendant unless he counterclaims SIMON OJIAKO & ANOR V OBIAWUCHI & ORS (1995) 9 NWLR (PT. 420); IJAMA ORIKA ODICHE V OGAR CHIBOGWU (1994) 7 NWLR (PT. 334); ONWUKA V EDIALA (1989) 1 NWLR (PT. 96) 180 @ 184. Where parties are not ad idem or ad idem facit on the identity of the land in dispute, the burden is on the party claiming title to prove the identity of the land, and he can do this by specific and unequivocal evidence as to boundaries of the land in dispute. It is the duty of the Plaintiff to prove title to a defined area which a declaration can be attached and in the case of ODESANYA V EWEDEMI (1962) 1 ALL NLR. 320, the Federal Supreme Court held that that defined area is the boundary of the land.” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
1. EDWIN EMEH
2. ERIC ARATOKE
3. IKECHUKWU NNACHO
4. JOSEPH NWAFOR EMEH
(For themselves and on behalf of Umueze Quarters, Akwa Village, Ifite Dunu) Appellant(s)
AND
1. SIR AUGUSTINE EGENTI
2. LINUS EGENTI
3. PETER IKEORA
4. CHRISTOPHER ANAEBONE (For themselves and on behalf of Egenti Family of Umuanugwo Village, Ifite Dunu) Respondent(s)
RITA NOSAKHARE PEMU, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the Judgment of the High Court of Anambra State of Nigeria, Holden at Nnewi and delivered Honourable Justice O. M. Anyachebelu on the 27th of June 2013 in Suit No. A/153/2001, whereby he dismissed the claim of the plaintiffs (Appellants in this Appeal).
SYNOPSIS OF FACTS
The suit, the subject matter of this appeal was instituted by a writ of summons dated 11th May 2001. The claim encapsulated in the writ of summons is for?
1. A declaration that the plaintiffs are entitled to the Customary Right of Occupancy over OKOKWU LAND situate at Akwa Village, Ifite Dunu in Dunukofia Local Government Area of Anambra State.
2. #100, 000.00 (One Hundred naira) damages for trespass.
3. An order of perpetual injunction restraining the defendants, their servants, agent or assigns from entering or interfering in any manner whatsoever with the plaintiffs rights over the said ‘OKOKWU LAND’. Page 1 of the Record of Appeal.
These reliefs were amply reproduced in paragraph 25 of the Statement of Claim filed on the 25th of September, 2006 by the plaintiffs in their representative capacity standing. Pages 24 – 28 of the Record of Appeal.
The parties in this appeal, who were Plaintiffs and Defendants respectively in the Court below, are from IFITE DUNU town in Dunukofia Local Government Area of Anambra.
Specifically, the Plaintiffs are from Umueze Quarters at Akwa Village known as OKOKWU LAND which is verged pink in their Survey Plan Exhibit ?D? in the Court below. They traced their title to the land in dispute to one DUNU who founded it and indeed other land. The Plaintiffs traced their root of title through him and their ancestors to the present Plaintiffs who are now suing in a representative capacity.
The land in dispute had before the institution of the suit, the subject matter of this appeal, being subjected to several litigations between members of the Plaintiffs (Appellants in this appeal) and Defendants (Respondents in this appeal) families. Indeed at the trial, the appellants had tendered several Exhibits evidencing these litigations which involved judgments and results of appeals resulting thereto.
The plaintiffs did aver that they had been victorious in the Court cases over the claims to OKOKWU LAND which they inherited from their ancestors.
They claim to know the land in dispute, as the extent of the land in dispute was by the planting of Ogilisi trees by Chiefs from Abagana Native Court, which Ogilisi trees formed the boundary between Okokwu land of the Plaintiffs and Gbulugbulu land of the Defendants.
It is further claimed by the Appellants that Dibiaezue Avenue, which used to be a footpath but now widened, is the Northern boundary of the land in dispute. It also constitutes the boundary of Akwa Village of the Appellants and Umuanugwo village of the Respondents.
On their part, the Respondents allege that the area in dispute in this case is their Gbulugbulu land which is verged green on their Survey Plan – Exhibit ‘F’.
They claim to have also inherited their Gbulugbulu land from DUNU through their ancestors. They claim that the area shown to be in dispute in Plaintiffs/Appellants Plan (Exhibit ?D?) is the combined land of Okokwu and Gbulugbulu which the Appellants claim as Okokwu land. The Respondents do not agree with the fact that Okokwu land belongs presently to the Appellants, but that it was extorted from them in the past by Warrant Chief Emeh, who is a member of the Appellants’ family.
The Respondents claim that Okokwu land starts from Nkwo Market and ends at a gulley near the market – verged Yellow in Exhibit ‘F’.
The Court, in the process of trial visited the locus in quo. On the 24th of February 2012, after which, it adjourned from further hearing on the 26th of April 2012.
At the end of the trial, in which the Appellants called five witnesses and tendered Exhibits A1, A2, A3, B1, B2, B3, B4 & B5 C, D, & E, and the Respondents called four witnesses and tendered Exhibit ‘F’, the lower Court found in favour of the Defendants (Respondents in this Appeal) and dismissed the Appellant’s claim in its entirety, according to the Appellants.
The Appellants are dissatisfied with this decision and pursuant to the Practice Direction of this Honourable Court, has appealed it.
Consequently, they filed a Notice of Appeal on the 20th of September 2013 with three (3) Grounds of Appeal. Pages 309 – 312 of the Record of Appeal. The Record of Appeal was deemed properly transmitted on 6th December 2016.
The Appellants filed their brief of Argument on the 5th of December 2016. It is settled by S. N. Chukwuma, Esq.
The Respondents on their part filed their brief of argument on the 6th of October 2017 and was deemed properly filed and served on 23th of January 2018. It is settled by G. C. Oputah, Esq.
On the 23rd of January 2018, the parties adopted their respective briefs of argument.
The issues for determination proffered by the Appellants in their brief of argument from the Grounds of Appeal are two (2) in number, they are:
1) WHETHER THE IDENTITY OF THE LAND IN DISPUTE WAS IN ISSUE IN THIS SUIT.
2) WHETHER THE PLAINTIFFS PROVED THEIR CASE ON THE BALANCE OF PROBABILITIES BASED ON THE PLEADINGS AND A PROPER EVALUATION OF EVIDENCE ADDUCED BY THEM AT THE TRIAL.
The Respondents had proffered three (3) issues for determination in their brief of argument, from the Grounds of Appeal. They are : …
These three issues are more or less an adoption of the Appellants issues for determination.
And on the consideration of these, the issue of boundaries come to play, but is not a determinant factor. It is trite that in land matters, when the case of the respective parties is put on an imaginary scale, he in whose favour the scale tilts, has established a better title. The issues formulated by the parties can be summarized into 3.
1) WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT THE APPELLANTS DID NOT SHOW AND PROVE THE BOUNDARY.
2) WHETHER THE PLAINTIFFS PROVED THEIR CASE ON THE BALANCE OF PROBABILITY BASED ON THE PLEADINGS.
3) WHETHER THERE WAS A PROPER EVALUATION OF THE EVIDENCE ADDUCED BY THE RESPECTIVE PARTIES.
I shall therefore consider this appeal based on the three issues formulated above by me, which is an adoption of the Appellants’ issues for determination. I shall take issues No. 2 & 3 together.
ISSUE NO 1
In arguing this issue, the Appellants submits that the land in dispute forms part of a piece or parcel of land known as OKOKWU LAND, situate at Akwa Village Ifite Dunu in Dunukofia Local Government Area of Anambra State – verged Pink on Appellants Plan No. FALS/AN/DL23/2002 made by F. Okey Omekam. Registered Surveyor. The OKOKWU LAND of the Plaintiffs is delineated and verged GREEN on the said Plan.
They also submit that the said OKOKWU LAND, part of which is in dispute is presently bound on the North by Dibiezue Avenue and remnants of Ogilisi trees planted as boundary marks by local Chiefs in 1921. And that beyond this lies Gbulugbulu land of the Respondents.
The land is bound on the South by the lands of Umuabiaru and Okpuloji Families of Akwa Village and on the West by Nwafia or Gbulugbulu stream.
They submit that the Appellants became the owners of OKOKWU LAND because Gbulugbulu land, Okokwu land and land verged Green in Respondents’ Plan originally was owned by Umunebo family of Umuanugwo Village. Indeed the parcel of land verged blue in the Respondents Plan was cited thereon, the General Hospital, the Shrine of Odogwu Akpu Juju and the Nkwo market, which parcel of land the Umunebo family has donated to Ifite Dunu Town for a public purpose as a market.
That PW2, the surveyor testified and tendered Exhibit ‘D’ and testified.
The Respondents fielded a Surveyor DW2 who tendered Exhibit ‘F’ They submit that the extent of the land in dispute in the parties’ respective plans on the Western boundary is agreed by the parties. That the area in dispute in Exhibit D verged Pink is the same as shown in Exhibit ‘F’ as verged Red. The Respondents conceded the area verged yellow within the land in dispute as the Plaintiffs’ Okokwu land and is not disputed by them.
The Respondents’ claim that the land in dispute is made up of two portions of land; the area verged yellow as being OKOKWU LAND of the Appellants, and the area verged Green as Gbulugbulu owned by the Respondents.
That Respondents’ witness deposed on Oath that the land in dispute is not Okokwu land, but it is the Gbulugbulu land – testimony of DW2, Peter Ikeora in paragraphs 4, 5 and 6 of his Statement on Oath at Pages 70 – 71 of the Record of Appeal.
Submits that where the area of land in dispute is well known to the parties, the question of proof of the identity of the land does not arise – Citing AKINTERINWA V OLADUNJOYE (2000) 6 NWLR (PT 659) 92.
Submits that the parties in this suit i.e. the Appellants and the Respondents know the land in dispute, therefore the identity of the land is not in issue.
They submits that what is in issue in the suit, the subject matter of this appeal, is whether Okokwu land of the Plaintiffs is that verged Pink in the Appellants’ Plan Exhibit ‘D’ or the area verged yellow in the Defendants’ Plan Exhibit ‘F’ within the land in dispute.
They submit that the Respondents counsel raised the issue of identity of the land in dispute in his final address. That such issue is supposed to be in their pleadings and evidence and not in counsel’s address. Submits that address of Counsel, is not a substitute for evidence.
They submit that the parties had previous litigations over the land in dispute, and therefore were known to them. It therefore was never in issue.
They urge this Honourable Court to answer issue No. 1 in the negative.
ISSUES NO 2 & 3
The Appellants submit that they proved their case on a balance of probabilities. This is because they traced adequately how the land devolved on them. That they tendered the suits over the land in dispute as acts of ownership and possession – Exhibits A1, A2, A3, B1, B2, B3, B4, B5 & E.
They submit that the Respondents contention that these judgments which were tendered applies to persons other than the Egenti family who are the Respondents (Defendants in the Court below) is at variance with their pleadings.
They submit that the Appellants have exercised acts of ownership and possession over the land in dispute, as the matters which went to Court were decided in their favour.
That the Abagana native Court planted boundary trees, after the judgment in suit No. 307.21, to demarcate Gbulugbulu and Okokwu lands. But that the present Defendants (Respondents in this Appeal) were not satisfied with that demarcation indicating the boundary, and Daniel Egenti interfered with the boundary trees and was convicted and sentenced to One month imprisonment.
Submits that the learned trial judge did not evaluate all previous judgments in this case which are res-judicata, by putting them on an imaginary scale to know which is heavier.
Submits that the Respondents filed no counter claim. That the Courts desire to identify Gbulugbulu land and not Okokwu Land as claimed by the Plaintiffs amounted to the failure of the lower Court to evaluate the evidence before it, as provided by law – Citing MOGAJI V ODOFIN 1978 3 SC. 91 @ 93 – 95.
Urges Court to answer Issue No. 2 in the affirmative.
RESOLUTION OF ISSUES
ISSUE NO. 1
In deciding where the identity of land was in issue, it is pertinent to take a cursory look at the pleadings of the respective parties and evidence elicited from them at the lower court.
The claim of the Plaintiffs (Appellants) in this appeal is inter alia for a declaration that the Plaintiffs are entitled to the Customary Right of Occupancy over Okokwu land situate at Akwa Village, Ifite Dunu in the Dunukofia Local Government Area of Anambra State. Therefore, it is right to say that the gravamen of the claim is title to land.
And in issue of title to land, in a declaratory action, it is the plaintiffs on whom the onus lies to prove with cogent and credible evidence that he is entitled to his claim, and that the Court should wield the law in his favour. Declaratory reliefs are not granted by a Court or tribunal of law either on the basis of admission or weakness, or even absence of a defence from the adverse party, without evidence adduced to establish entitlement to the relief by the party seeking them ONU V AGU (1996) 5 SCNJ 74 @ 87. AJA V OKORO (1991) 7 NWLR (Part 203) @ 260 @ 282; OGUNJUMO V ADEMOLU (1995) 4 NWLR (PT. 389); DABUP V KOLO (1993) 9 NWLR (Pt. 317)754.
In paragraph 3 of the statement of the Plaintiffs (Appellants in this Appeal) averred thus:
The land in dispute is part of a piece or parcel of land known as and called OKOKWU land and is situated in Akwa village, Ifite Dunu, in the Dunukofia Local Government Area of Anambra State. It is shown verged pink on the Plaintiffs’ Plan No. FALS/AN/DL23/2002 made by F. Okey Omekam, Registered Surveyor and filed with the Statement of Claim. The entire OKOKWU land of the Plaintiffs is delineated and verged GREEN on the same plan.
The reaction of the defendants (Respondents in this appeal) to this averment is on paragraph 2 of their further amended Statement of Defence – Page 124 of the Record of Appeal.
I shall reproduce same verbatim:
PARAGRAPH 2: “The Defendants deny paragraph 3 of the Statement of claim. The defendants say that the Plaintiffs’ Plan is faulty in that it encompasses two different parcels of land namely; Gbulugbulu and OKOKWU, and makes them one. The two parcels of land are distinct and separate it from Gbulugbulu; Gbulugbulu land begins from that gully and ends at a stream called Gbulugbulu stream. The Defendants also deny the features in that Plan. The Defendants will rely on their own Plan No. SSC/AN / D25A/2005 made for them by Mr A. I. Udezue, Registered Surveyor and which is filed with this Statement of Defence.”
In their paragraph 3, the Defendants aver thus:
“The Defendants claim Gbulugbulu land as their own, but have no interest in Okokwu land.”
It is apparent that the issue of the identity of the land has been put in issue by the parties, but the defendants concede Okokwu land to the Plaintiffs.
In ALHAJI RAUFU GBADAMOSI V OLAITAN DAIRO (2007) 1 SC. (PT. 11) 157, the apex Court held inter alia that the issue of land in a claim of declaration of title to land is fundamental. It surely is. The onus becomes that of the Plaintiff seeking the declaration to establish the precise identity of the land he is seeking the declaration “EZUKWU V UKACHUKWU (2004) 17 NWLR (PT. 902) 2137; IORDYE V IHYAMBE (2000) 15 NWLR (PT. 692) 6751. But where the area of land in dispute is well known to the parties, the question of proof of the identity of the land in dispute does not arise” See AKINTERINWA V OLADUNJOYE (2000) 6 NWLR (PT. 659) 92.
The law is elementary that it is the Plaintiff who claims a declaration of title to land that has the duty of establishing the identity of land in respect of which he seeks the declaration and not the defendant unless he counterclaims SIMON OJIAKO & ANOR V OBIAWUCHI & ORS (1995) 9 NWLR (PT. 420); IJAMA ORIKA ODICHE V OGAR CHIBOGWU (1994) 7 NWLR (PT. 334); ONWUKA V EDIALA (1989) 1 NWLR (PT. 96) 180 @ 184.
Where parties are not ad idem or ad idem facit on the identity of the land in dispute, the burden is on the party claiming title to prove the identity of the land, and he can do this by specific and unequivocal evidence as to boundaries of the land in dispute.
It is the duty of the Plaintiff to prove title to a defined area which a declaration can be attached and in the case of ODESANYA V EWEDEMI (1962) 1 ALL NLR. 320, the Federal Supreme Court held that that defined area is the boundary of the land.
In OMOREGIE V IDUGIEMWANYE (1985) 2 NWLR (PT. 5) @ 41, the Federal Supreme Court held inter alia also that:
1. In an action for declaration of title, it is the duty of the Plaintiff to show quite clearly the area of land to which his claim relates.
2. One of the ways of showing the specific area claimed is to file a Plan of the area; such Plan being properly orientated, drawn to scale and accurate, and reflecting the boundary features.
3. A Court will not grant a decree of declaration of title in respect of an undefined area. ? UMESIE V ONUAGULUCHI (1995) 9 NWLR (Part 421) 515.
The burden of proof of the identity of the land does not shift one inch, it lies totally on the Plaintiff. He who avers must proof much so.
The test for the establishment of the identity of the land is whether a Surveyor can, from the record, produce an accurate Plan of such land. Admittedly, and in law, a plan is not in all cases a sine qua non, but some description is necessary to make the disputed land ascertainable. AWERE V. LASOJU (1975) NMLR. 100.
The Appellants tendered Exhibit D – Plan No. PALS/AN/DL2J/2002, made by one Okey Omeka ? Registered Surveyor. On Exhibit D, the area verged Pink within the entire land of the Appellant verged GREEN is the land in dispute. The scale is 1: 2500.
The features thereon are Ogilisi trees as boundary mark, to the North, there is thereon ruins of Ekpe wall; Dibiaeze Avenue. To the East is earth drain lined by Ogilisi trees. There is also a young akpu tree.
In Paragraph 20(1) of the further Statement of Defence, the Respondents had averred that there were no Ogilisi trees on the land in dispute as boundary mark, but Ogilisi trees are properly reflected on Exhibit ‘F’ tendered by the Respondents and indeed in Exhibit ?D? tendered by the Appellants.
Exhibit ‘F’ was tendered by the Respondents. It is Plan No. SSC/AN ? O25A/2005by A.I. Udemezue – Registered Surveyor. In it, the entire land of the Respondents was verged BLACK and the scale is 1: 2500 too.
It seems to me that parties in this matter know the area of the land in dispute, but not its specific identity. The problem was the extent of the land claimed by both. It is clear and indeed apparent that none of the parties lived on the land.
The identity of the land in dispute was never in issue even though by the parties’ pleadings they put it in issue as the Respondents disputed the features shown on the Appellants plan.
Curiously, the Respondents did not counterclaim at the lower Court ANYAFULU VS. MEKA (2014) 7 NWLR (Pt. 1406) 396. Be that as it may, although both parties knew the land in dispute having been settled by Abagana Customary Court. Both of them do not seem to know the extent of the land.
The Appellants claim that the whole land is known as Okokwu land while the Respondents said the land is GBULUGBULU Land.
The Plaintiffs say the boundary of the land is demarcated by Ogilisi trees and the Ekpe wall but upon visitation to the locus in quo, the trial judge observed that neither the Ogilisi trees nor the Ekpe wall was present on the land.
The pleadings of the Plaintiffs did not tally with the findings at the locus in quo.
The Defendant having raised issues with the plaintiff concerning the features described in the Plaintiff?s Plan, together with the findings of the Court at the locus in quo, it is clear that the Plaintiffs (Appellants) are yet to establish with certainty the extent of the land in dispute.
Upon failure to sufficiently ascertain the extent of a land in dispute, no reasonable tribunal would grant a declaratory relief of same.
The lower Court observed that the Plaintiffs have tried to say that they own the land based on earlier Court decisions. In Suit No 8/38 to be precise in the Umudunukofia Native Court, the land in dispute was defined for the parties.
A sketch Plan Exhibit B5 was produced at the proceedings but, curiously, the sketch plan Exhibit B5 relied upon was, according to the Surveyor PW2, Superimposed on Plan MEC/16/66 – which was not tendered and which was later shown to him to prepare Plan No. FALS/AN/DL 23/2002, now relied on by the Appellant.
PW2 claimed that the plan shown to him i.e. Plan No. MEC/16/66 though not tendered corresponds with Exhibit B5 i.e. sketch plan drawn by the native Court.
The lower Court in its Judgment carefully observed the proceedings of the native Court given the description of the land. Pages 303 – 304 of the Record of Appeal.
A careful look at Exhibit B5 – the sketch Plan together with the description in the proceedings of the Native Court shows that Exhibit ‘D’ did not tally or show proper description of the land in dispute. Therefore, it goes to lack of identity of the land in dispute as to extent and features therein. Exhibit ‘D’ did not even reflect Gbulugbulu land which according to Exhibit ‘B’5 (the sketch plan drawn by the Native Court) ought to be located between Okokwu land and Gbulugbulu Stream. The question now is where is Gbulugbulu Land?
See page 305 of the Record of Appeal for the observation of the lower Court judge.
It is my view that failure to establish the extent of land claimed still borders on identity of the land claimed and for which declaration is sought. It is trite that where there is a claim for declaration of title to land the identity of the land must be sufficiently ascertainable.
The trial Court was right not to have granted a declaratory relief based on a shady plan that lacks certainty tendered by the Appellant.
The totality of this is that Issue No. 1 is resolved in favour of the Respondent, and against the Appellants.
ISSUES 2 & 3.
The Appellants had traced their ancestry to DUNU who deforested the land. He begat four sons Ukpoakwu (Ukpo); Ifite Ukpo (Ifite Dunu); Nnachi, and Dioka.
Ifite Ukpo (Ifite Dunu) begat five children namely Abidudu (Obieze); Ukpomili; Akwa; Anugwo and Igbuala.
On the death of their father, Akwa it was to whom the land in dispute was shared.
Akwa begat five sons namely Onuwu; Eze; Abiawu; Okpoluji and Alam.
On the death of Akwa, his sons shared his land, and Eze got the land in dispute.
On the death of Eze, his two sons namely Doo and Ota decided to use their father’s land in common. Doo begat Ginijeme, who begat Alatoke who in turn begat Emeh – the grandfather of the Appellants.
On their part, the Respondents had traced their ancestry to the same DUNU. They agreed to the lineage up to the second set, while the Appellants linked their own lineage to Akwa, the Respondents linked theirs to Akwa’s brother namely Anugwo.
It is at this juncture that the parties parted ways as regards traditional history. The Respondents averred that Anugwo begat six sons one of whom was Nebo. Nebo begat three sons one of whom was Ijenaga (Agha ejeje) who begat two sons, Onukwunutelu and Uzoka. Onukwutelu begat Egenti who begat Daniel. Uzoka begat Odili.
There is no gainsaying that the traditional history proffered by both parties started to differ at the point of Akwa and Anugwo respectively.
The claimant had averred in Paragraph 13 of the statement of claim that part of the land in dispute is Okokwu Land.
Exhibits D & F clearly show Ogilisi trees as at the time those plans were made. The learned trial judge had said there were no ogilisi trees on the land in dispute. This was his observation at the visit to the locus in quo.
The Appellants had traced their ancestry in my view up to their grandfather Chief Emeh. The Respondents had not traced to any grandfather of theirs. Indeed the Respondents claimed that they originally owned the Okukwu land until what was issued as a mere pledge by their family to the Appellants family was made a GRANT. Now where is the evidence of that grant? At least some evidence of such grant by a witness or two would have sufficed to buttress this.
While the Appellants called the land in dispute Okukwu, the Respondents call it GBULUGBULU LAND.
The Appellants had exhibited documents of suits between them and the Respondents which have been favourable to them over time. From the pleadings and evidence before the Court, it is my view that the Appellants are entitled to the portion of the land claimed, but the question is to what extent? This borders on identity of the land. Failure to positively identify the land is fatal. This lacuna takes away from them what could have been legitimately theirs.
Let me re-emphasize that in the further amended statement of defence, the Respondents admitted the traditional history of both parties as being traced by the Plaintiffs, to the point that after the death of Dunu, his four sons shared his land and Ifite Dunu took the land in dispute, which land in dispute was a part. I do not believe this assertion.
I am of the view that the traditional history proffered by the Appellants is more plausible than that of the Respondents, putting their respective narrations on an imaginary scale. ADEAGBO V. OGBAJE (2014) 10 NWLR (pt. 1416) 541; CHUKWU V. AKPENI (2014) 13 NWLR (pt. 1434) 359 SC; GBEMISOLA V. BOLARINWA (2014) 9 NWLR (pt. 1411) 1 SC.
In his written statement on Oath, Shedrach Emeh, farmer had deposed inter alia that he used to farm on the land in dispute with his father as a boy. He traced the boundaries of the land in dispute.? Pages 97 ? 99 of the Record of Appeal.
It is trite that where the parties in an action for declaration of title to land claim title from the same root (here DUNU) it is that party that proves or establishes a better title to the land that would succeed.
The Court cases earlier won by the Appellants in their fight with the Respondents constitute facts in issue which a Court must also consider in arriving at a just conclusion.
As earlier observed, regarding traditional history, while the Appellants traced their title up to their grandfather Chief Emeh, the Respondents could not trace their ancestry sufficiently. See OKWARANOBI V. MBADUGHA (2013) 17 NWLR (pt. 1383). NRUAMAH V. EBUZOEME (2013) 13 NWLR (pt. 1372) 474.
With these discrepancies, I am of the view that in the absence of ascertaining the true extent of the land in dispute, this appeal cannot succeed, because the very pillar upon which the Appellants case could have been hinged is absent.
Issues 2 and 3 are resolved in favour of the Appellants.
?When the trial Court failed to grant the claim of the Plaintiff in the Court below, he was right, as you cannot put something on nothing. In as much as I prefer the traditional history of the Appellants, absence of the true extent of the land in dispute is fatal to his case.
The appeal fails and same is hereby dismissed.
The judgment of the High Court of Anambra State holding in Nnewi and presided over by Hon. Justice O. M. Anyachebelu delivered on the 27th of June 2013 in Suit No. A/153/2001 is hereby affirmed. No order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I agree.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have had a preview of the judgment delivered by my learned brother HON. JUSTICE RITA NOSAKHARE PEMU, JCA. I agree with the conclusion that the appellants failed to identify the land being claimed by them with certainty and precision required by law. The 1st duty of the plaintiff in a claim for declaration of title to land is to identify the land being claimed by him. Where there is a dispute on the identity of the land in dispute as in this case, the plaintiff must identify the location, the size, the extent and the boundaries of the land in dispute with certainty and precision. Where the plaintiff fails to identify the land in dispute with certainty and precision, his case must be dismissed. The appellant having failed to prove the size and the extent of the land they referred to as ?Okokwu? land, the Court below was right in dismissing their case. I too dismiss the appeal. I abide by the consequential orders made in the lead judgment.
Appearances:
S.N. Chukwuma, Esq.For Appellant(s)
G.C. Oputah, Esq.For Respondent(s)
