LawCare Nigeria

Nigeria Legal Information & Law Reports

FIMIE-KOKO v. FIMIE-KOKO & ORS (2022)

FIMIE-KOKO v. FIMIE-KOKO & ORS

(2022)LCN/16675(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, May 19, 2022

CA/PH/393/2017

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

MR. IBIFURO STEPHEN FIMIE-KOKO APPELANT(S)

And

1. CHIEF (DR.) BERNARD R. FIMIE-KOKO 2. MR. SUNDAY IWERISO FIMIE 3. MR. IBIGONI WILFRED FIMIE 4. MR. EMMANUEL DAGOGO 5. MR. SYLVANUS FIMIE 6. MR. IDAYE FIMIE 7. MR. SYLVESTER OGBANGA 8. MR. ANDREW FIMIE 9. MR. FRIDAY OGBANGA (For Themselves And As Representing The Fimie Community Fimie Family Unit In Koko Omuaru Of Ogoloma In The Port Harcourt City Local Government Area) RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

I have painstakingly alluded to the definite findings of the trial Court, the basis upon which the Court reached its conclusion in giving Judgment in favour of the Respondents. Indeed, this Court is not in the habit of interfering with the findings and conclusions of a lower Court, which were reached, upon a dispassionate appraisal of the pleadings as well the evidence elicited by the parties before the Court. Ipso facto, the interference by this Court will only be warranted where it is found that the findings are not only perverse but also where the conclusions were reached because of an incorrect application of the applicable law. See RABIU Vs. ADEBAJO (2012) LPELR – 9709 (SC), OKOYE & ANOR Vs. OBIASO & ORS [2010] 8 NWLR (Pt.1195) 145 SC, IFETA Vs. SPDC NIG LTD [2006] 8 NWLR (Pt. 983) 585.  PER KOLAWOLE, J.C.A.

FACTOR THAT MUST BE PROVED BEFORE A COURT CAN GRANT A PARTY’S RELIEF FOR DECLARATION OF TITLE TO LAND

Indeed, the law is well settled that before a Court can grant a party’s relief for declaration of title over land, such a party must properly establish and prove his entitlement to the declaration by cogent evidence. The Supreme Court in the case of ONOVO & ORS Vs. MBA & ORS (2014) LPELR-23035 (SC) at 27, paras. A – E, per OGUNBIYI, JSC reiterated thus:
“The law is also settled that, in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence, they are entitled to the declaration sought. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 445. Also, the case of Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616 at 631 where it was held by this Court that: “In an action for declaration of title to land it is trite law that the plaintiff must prove title or at least prove to have been in exclusive possession as approved in the case of Ekpo v. Ita II NLR 68 and held further in the case of Idundun v. Okumagba (1976) NMLR 200. Further, he must on the strength of his case and not on the weakness of the defence.”
See the provision of Section ​137(1) of the Evidence Act; KOPEK CONSTRUCTION LTD. Vs. EKISOLA (2010) LPELR – 1703(SC), OLATOMIDE & ANOR Vs. IKUMUYILO & ORS (2019) LPELR – 48374(CA) and OLATUNJI & ORS Vs. AYENI (2019) LPELR – 48495(CA).
PER KOLAWOLE, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Rivers State High Court, sitting in Port Harcourt Judicial Division delivered by the Hon. Justice E.N. Ogbuji on 27th January, 2017 in Suit No. PHC/1410/2008. The Appellant as Claimant at the lower Court initiated the suit which after plenary hearing, birthed the judgment of the trial Court vide a writ of summons and statement of claim dated 18th August, 2008 wherein he sought the following reliefs:
(a) A declaration that the Claimant being allocated of the piece or parcel of land off Iweriso Lane, Fimie Ama, adjacent the Fimie Ama Community hall is perpetually entitled to the right of occupancy under the Ogoloma native laws and custom over all that piece or parcel of land measuring approximately an area of 2099.26 square meters with the developments thereon lying at Fimie Ama Community (Fimie Family Unit), Trans-Amadi, Koko Omuaru of Ogoloma of Ogbiikime Group of Houses in the Port Harcourt City Local Government Area.
​(b) A perpetual injunction restraining the Defendants by themselves, their privies, agents, servants, community members, associates, workers and howsoever described from further trespassing into and dealing with the said piece or parcel of land and the developments thereon at off Iweriso Lane, Fimie Ama Community and as particularly shown on survey plan number SNA/RV/221/991.
(c) Payment by the Defendants to the Claimant of the sum of N50,000,000.00 (Fifty Million Naira) being and representing general damages for continuing acts of trespass, wrongful arrest, detention, intimidation and inconveniences caused to the Claimant by the Defendants.

Upon service of the originating processes on the Respondents who were the Defendants in the Court below, they filed an Amended Statement of Defence and counter-claim wherein the following reliefs were sought against the Appellant as the Claimant:
(a) A declaration that the Claimant’s land is that described in paragraph 20 above.
(b) An order directing the Claimant to produce (as the duty to produce a survey plan is on him base (sic) on the Defendants’ directive or guardian – the Defendants are the vendors in that sense) a survey plan of the land described in paragraph 20 above.
(c) An order vacating the Claimant, his privies, subjects etc from the land in dispute with immediate effect.
(d) An order of payment of N100,000,000.00 (One Hundred Million Naira) as trespass.
(e) An order of perpetual injunction restraining the Claimant or his privies, subjects etc from interfering with the Defendants’ use of the land in dispute.

At the conclusion of trial, the trial Court dismissed the Appellant’s suit in its entirety and entered judgment in favour of the Respondents on the basis of their counter-claim with the sum of N500,000.00 (Five Hundred Thousand Naira) awarded as damages for trespass.

Naturally dissatisfied with the said judgment, the Appellant filed a notice of appeal dated 23rd February, 2017 which contains two (2) grounds of appeal. The parties thereafter filed and exchanged their respective briefs of argument. The Appellant’s brief of argument dated 6th July, 2018 and filed 9th July, 2018 but deemed properly filed on 16th January, 2019 was settled by Ishmael Blue-Jack, Esq., KSC. and Sotari F. Tamunowari, MCIArb (UK) settled the Respondents’ brief of argument dated 15th October, 2018 and filed on 16th October, 2018 but was deemed properly filed on 16th January, 2019. A reply brief of argument dated 16th November, 2018 but deemed properly filed on 16th January, 2019 was also filed on behalf of the Appellant.

In the Appellant’s Brief of Argument, two issues were formulated for the determination of the appeal and they read thus:
(a) Whether the Respondents by offering the Appellant an extension of land as compensation did not tacitly admit that the land in dispute belongs to the Appellant?
(b) Whether the learned trial Judge was right to have held that the Fimie Ama Community can recover land already given to private members of the community when the custom was not satisfactorily proved before the Court?

For the Respondents, two issues were nominated for the determination of the appeal and they are as follows:
(a) Whether the Appellant proved his case on the preponderance of evidence vis-à-vis the issue of absolute ownership of the land in dispute in Fimie-Ama.
(b) Whether the Respondents proved their case that under their native law and custom, the community has the right to acquire private land for community development subject to compensation.

​APPELLANT’S SUBMISSION
On the first issue, it is submitted that parties are ad idem on the fact that the disputed land was allocated to the Appellant by the Fimie Ama Community in 1980 but that what was in contention is whether the area in dispute in this case was included in the area allocated to the Appellant. It is the submission of Appellant’s Counsel that the decision of the native arbitration arising from the dispute between the parties was that the land in dispute was allocated to the Appellant, but the community’s overriding interest to use the land in dispute for community car park was superior. It was based on this decision that the arbitration panel that the Respondents decided to extend the Appellant’s land as compensation for the community’s quest to use the land for car park.

The Appellant’s learned Counsel argued that the Respondents who claimed that the land in dispute was not given to the Appellant ought to have tendered before the Court, the list of allottees and the size of the land allocated to them as at 1980 when the Appellant was allocated the land. He also argued that the Respondents failed to prove the size of the land allocated to the Appellant and other community members. The Appellant’s learned Counsel submitted that the Respondents’ DW2 admitted that the land belonged to the Appellant but that the community’s interest to use the land for alternative purpose is superior. It is learned Counsel’s submission that the trial Court ought to have upheld the findings and decision of the native arbitration panel. The Appellant’s Counsel further argued that the evidence of the parties before the trial Court is that for about twenty-four (24) years, the Appellant occupied the land in dispute without any challenge. He cited the decision in the case of AKINBADE Vs. BABATUNDE [2018] 7 NWLR (Pt. 1618) 366 at 397 – 380. Appellant’s Counsel finally submit that the legal effect of the acceptance by the Respondents to give the Appellant an alternative land is a tacit and implied admission that the land in dispute belonged to the Appellant.

On the second issue, learned Counsel for the Appellant submitted that under the present legal regime, a State government under various States’ land laws and the Land Use Act can compulsorily acquire a private property for a public purpose but adequate compensation must be paid to affected private property owner. He submitted that the right of the community to take over private properties of members would only ensue if it can be shown under relevant laws or prevailing custom, that same can be done. It is the submission of Counsel that none of the Respondents’ witnesses held himself out as an authority in the custom of the Fimie Ama Community and led evidence of the prevailing custom of the community authenticating the procedure for taking over individual property for community use. The Appellant’s counsel further argued that the Respondents failed to plead any enabling custom or led evidence of any custom in support of the Respondents’ acquisition of the Appellant’s private property, citing the decision in PRINCESS BILEWU OYEWUNMI & ANOR Vs. AMOS OWOADE OGUNESAN [1990] NWLR (Pt. 137) 182. Appellant’s learned Counsel finally submitted that the Respondents did not by credible evidence satisfy the Court that similar practice had taken place in the community involving other people or that the Fimie Ama Community had in time past taken over other people’s private lands for community’s use or purpose.

On the first issue formulated on behalf of the Respondents, the Respondents’ Counsel submitted that the Appellant has not proved his case on the preponderance of evidence that he was allocated the land in dispute and the said allocation was absolute. Respondents’ Counsel referred us to relevant paragraphs of the parties’ pleadings to submit that even though the parties joined issue on whether there was a survey on the land initially allocated to the Appellant in 1980, the Appellant did not present any evidence in support of his averment that he made a survey plan in 1980 when the land in dispute was allocated to him. Relying on Section 167(d) of the Evidence Act and the case of FIRST BANK NIGERIA PLC Vs. ASAWARI [2015] 9 NWLR (Pt. 1463) 182 at 209, the Respondents’ learned Counsel submitted that the Appellant deliberately failed to produce the survey plan because the contents of the said plan will be unfavourable to him. It is the submission of Counsel that if the survey plan is presented, it will not only agree with the contents of Exhibit 14 presented by the Respondents, it will also show that the land in dispute was not given to the Appellant and also show the road that separate the land in dispute from the land given to the Appellant by the Community alongside other indigenes.

The Respondents’ learned Counsel remarked that the Respondents’ case is that the land in dispute was reserved for the Community Hall car park and was not allocated to the Appellant, even though the Appellant had put his building materials on the said land. Counsel argued that the Appellant failed to challenge the Respondents’ case that lands were allocated by the Community to the Appellant alongside one Mr. Paul Idamieibi Obadiah Fimie and Mr. Harrison Harry Fimie at the same time. The Respondents’ Counsel then queried the reason for which the Appellant’s land was bigger than the other allottees. He argued that the burden of proving why his land is bigger than the other allottees rests on the Appellant and relied on Section 136 of the Evidence Act, 2011 and the decision in the case of OKPOLOR Vs. STATE [1990] 7 NWLR (Pt. 164) 581 at 589, paras E – H.

Arguing further, the learned Respondents’ counsel noted that the Respondents had indeed conceded to the Appellant that by the Respondents’ conduct of allowing the Appellant to use the land in dispute as his own property, and they also agreed to the native arbitration where it was decided that extra land be given to the Appellant, which the Respondents complied with. He then submitted that the trial Court decided the matter before it on the customary principle that the Community has overriding power to acquire private land for public purpose but subject to compensation which was given to the Appellant.

The Respondents’ Counsel submitted that the trial Court accepted the evidence of DW2 to the effect that the applicable custom was proved and that the Appellant’s evidence, Exhibits 5 and 6 confirmed the said custom. It is his final submission on this issue that the Appellant failed to prove his case that the land in dispute was allocated to him in 1980.

On the second issue, it is submitted on behalf of the Respondents, after inviting our attention to relevant averments in the Respondents’ pleadings and evidence led through DW2 at trial, that facts admitted require no further proof; that the Respondents led evidence in proof of their case without any challenge by way of cross-examination by the Appellant. The Respondents’ Counsel observed that since the Appellant agreed with the Respondents’ land given to any member of the Community can be acquired for overriding public purpose, the Appellant can only demolish the Respondents’ case if he is able to show: (a) the land in dispute was not acquired for public purpose; and (b) no “dialogue” between him and the Community took place.

Learned Respondents’ Counsel restated the point already canvassed under the first issue, that production of the survey plan the Appellant made would have afforded the trial Court to ascertain if the 20ft by 10ft section of the land in dispute was part of the original grant or given to the Appellant as compensatory portion for the land in dispute acquired in accordance with native law and custom. He referred us to the provision of Section 16(2) and 200 of the Evidence Act, 2011; C.D. Field’s Law of Evidence, 11th Ed., Vol. 1 (1981) at page 382; Sotari F. Tamunowari, Annotation of the Nigerian Evidence Act, 2nd Ed., 2014 at page 482; and the decision in AMADI Vs. AMAECHI [2011] 15 NWLR (Pt. 1271) 437 at 462, paras B – G.

Counsel further argued that the Respondents led evidence to establish the custom which empowered the Community to acquire private land but subject to the provision of alternative land for the affected landowner by showing that the land belonging to one “Mr. Harrison Harry Fimie’s land was recovered from him and another land of 70ft by 70ft was given to him much later.” He noted that the previous application of the custom was pleaded without challenge by the Appellant and learned Respondents’ counsel finally urged the Court to resolve the second issue in favour of the Respondents.

In the Reply Brief, Appellant’s Counsel submitted that the onus to present a survey plan does not rest on the Appellant even if he said he would do so since the Appellant has exercised right of ownership from 1980 when the land was allocated to him without any challenge, until 2003 when the 7th Respondent became head of Fimie-Ama. The Appellant’s counsel referred to the provision in Section 143 of the Evidence Act, 2011 and the decision in the case of OMONUWA Vs. OKPERE [1991[ 5 NWLR (Pt. 189) 36 CA to support the proposition that the onus to show the quantum of land allocated to the Appellant rests on the Respondents. He noted that once it is proved that the original ownership of property is in a party, the burden of proving that the party has been divested of the said ownership rests on the other party.

The Appellant’s counsel remarked that the Respondents admitted in paragraph 2 of their Statement of Defence and counter-claim that the land in dispute was allocated to the Appellant, and this fact requires no further proof, citing the decision in the case of HILARY FARMS LIMITED Vs. M/V MAHTRA [2007] ALL FWLR (Pt. 390) 1421 ratio 9. He noted that the Respondents’ argument in their brief of argument that the land was not allocated to the Appellant contradict their pleadings, relying on the decisions in AKANNI Vs. ODEJIDE [2004] ALL FWLR (Pt. 218) 822 at 854 – 855, paras G – A, SOWEMIMO Vs. STATE [2004] ALL FWLR (Pt. 208) 951 at 967 – 968, paras D – B. He further urged on us to discountenance the contradictory position taken by the Respondents. It is the submission of Counsel that going by the findings of the arbitration panel which the Respondents consented to and upon which the Appellant was offered an alternative land, it is settled that the disputed land was part of the land allocated to the Appellant the burden therefore shifts to the Respondents who are alleging that the land is no longer owned by the Appellant to prove this fact.

On the second issue, learned counsel for the Appellant submitted that the maxim nemo dat quod non habet applies to the circumstance of the instant case and since the land in dispute had already been allocated to the Appellant in 1980, the Respondents cannot claim to seek to use the land as car park and cited the decision in the case of ADIKE Vs. OBIARERI [2007] FWLR (Pt. 131) 1907. The Appellant’s counsel further submits that there is no known law in that the Fimie-Ama Community has a right to retrieve a land allocated to member of the Community or compulsorily acquire same; that the allocation of a community land is equivalent to a grant and relied the decision in the case of AGBOMEJI Vs. BAKARE 7 SCNJ 33 at 58.

RESOLUTION
I have carefully considered the issues formulated and all the submissions made on the said issues by the learned Counsel for the parties in their respective briefs of arguments. It is a common thread and a fact which parties in this appeal are not disputing that the two questions central to the determination of this appeal, is whether the portion of the land in dispute was allocated to the Appellant in 1980, and even if it is accepted that the land in dispute was allocated to the Appellant, is the allocation an absolute grant incapable of being revoked or acquired by the Fimie-Ama Community or put in another way, can the Fimie Ama Community recover land already given to private members of the Community?

It is not in dispute, and I have no doubt that both the Appellant and the Respondents are members of the Fimie-Ama Community, and lands in the Community are communally held. It is also the practice in the Community that lands are allocated to deserving members of the Community based on acceptable standards. See the averments in paragraphs 4 to 7 of the Appellant’s Statement of Claim at page 14 of the record of appeal and paragraphs 3 to 5 of the Respondent’s Amended Statement of Defence and Counter-Claim at pages 111 to 112 of the transmitted record.

However, while it is Appellant’s case that the land in dispute was allocated to him in 1980 by the Community Leaders after fulfilling certain conditions, and upon the said allocation, interest in the land enures to him in perpetuity. For ease of reference, the Appellant averred in his Statement of Claim at pages 13 to 18 of the record of appeal as follows:
“3. The subject matter of this suit is a piece of land situated and being off Iweriso Lane, adjacent the Fimie Ama Community hall, Fimie Ama, Trans-Amadi, in PHALGA measuring approximately an area of 2099.26 square meters.
(b) The parties know the land in dispute in their Fimie Ama Community.
4. Further to the above, the Claimant avers that the piece of land was allocated to him about 1980 during the leadership of Late Mr. Jonah Fimie as chairman and Late Mr. Wilfred Fimie as vice chairman and their Executive Council of Fimie Ama Community. Prior to the allocation it was a communal land of Fimie Land.
5. The Claimant further avers that he was allocated the piece of land at the swampy area of their Fimie Ama Community after applying for the same and performance of requisite customary rites, including payment of money and presentation of drinks, biscuits and other demands by their Fimie Ama Community.
6. According to Ogoloma native laws ad custom, which is applicable to Fimie Ama Community, when land is shared to its audit males after paying money and other demands by the community, the land is owned in perpetuity and runs only in the lineage of that person from generation to generation.
7. The Claimant fulfilled the conditions stated in paragraphs 5 and 6 above and was properly allocated the piece or parcel of land now in dispute by the Fimie Ama Community leader and Elders on behalf of the community…
9. The Claimant avers that he immediately took possession of the land started filling it with mud and sand at great cost before putting up temporary structures, block house and left an open space for further development.
12. The Claimant further avers that in 1999 he made a survey plan of the land – SNA/RV/221/99. The same will be relied upon at the trial.
13. The Claimant in furtherance to paragraph 11 above put in tenants into the temporary structures (batchers) he built. Receipts of rent payment by the tenants will be relied on at the trial.”

In the same vein, the Appellant averred in his reply to the Amended Statement of Defence and Defence to Counter-Claim at pages 116 to 120 of the record of appeal, as follows:
“2..
a. Allocation of land made to indigenes was not on equal basis.
Land allocated to persons and entire surrounding including the land in dispute and the community hall are shown on the plan TAO/RV/2010/05-LD.
b. The Claimant was given swampy place which he made a survey plan upon the allocation.
c. Claimant is not aware of land given to Mr. Harrison Harry Fimie was retrieved and another land of about 70ft by 70ft was given to him much later.
d. Land given to community members is absolute and perpetual but where for overriding community purpose such land is required proper dialogue between the owner/allottee and the community shall be made for replacement and or on terms.
e. After fulfilling the conditions as enumerated in paragraphs 3 and 4 of the Statement of Defence token payment is made to the family for the allocation of land.
f. The land in dispute was a swampy land which claimant upon allocation reclaimed with black mud and sand. Claimant’s land is adjacent to the Community Town Hall.
g. Measurement was given at the time of the allocation of land to the Claimant by the Fimie Family (community) and sticks were pinned. The land was a swampy one but a bush. The Claimant reclaimed the land in dispute and built houses, both batchers and block house and left place for future development.
h. Upon allocation of the land to the Claimant a Survey Plan was made as the beneficial owner.

The Respondents’ position is that the land in dispute was not allocated to the Appellant and any land allocated to members of the community is not absolute but same can be acquired by the Community for public purpose. Specifically, the Respondents averred in their Amended Statement of Defence and Counter-Claim at pages 111 to 114 of the record of appeal thus:

“3. The Defendants aver that in Fimie-Ama, allocation of land to deserving members of the community are based on the following criteria, namely:
​4. The Defendants aver that allocations are done periodically to qualified members who upon allocation provide drinks, biscuits etc. The Defendants shall, however, contend at the trial that there are instances when indigenes have come to the rescue of the community by providing money to solve community problems. Sometimes, the community gives land compensation.
5. The Defendants deny paragraph 3 that the Claimant was given 2099.26sqm as no survey plan was in the first place done. In 1980, when the Claimant was allocated the land, he was given land along with Mrs. Paul Idamieibi Obadiah Fimie and Mr. Harrison Harry Fimie. None of these persons was allocated land up to the size of about 1000sqm; in fact Mr. Harrison Harry Fimie’s land was recovered from him and another land of about 70ft by 70ft was given to him much later. The layout of the land allocated to these persons and the entire surroundings including the land in dispute and the community hall are shown in the Survey Plan No. BLD/RV030/2009-LD. The Defendants will rely on the said plan at the trial and the same is hereby pleaded.
6. The Defendants therefore aver that land given to members of the community is not absolute but for overriding community purpose, such land can be recovered but the person must be given another piece of land.
7. The Defendants deny the claim of the Claimant that he fulfils all the conditions for allocation of land including payment of money as no money was requested for allocation of land in Fimie-Ama and no money was paid by the Claimant…
9. The Defendants aver that no measurement was taken when the community allocated the land to the Claimant. The land then was a bush. The Claimant cleared it including the land now in dispute. After the clearing, he built his house opposite the land now in dispute and continue to use the land in dispute as space for his blocks. He assumed ownership and the community did not object tacitly confirming his ownership.
10. However, the community had designated the land in dispute for car park for the town hall but the Claimant would not agree…
11. The Defendants aver that because the Claimant assumed ownership by reason of the conduct of the community, his original land was extended by 20ft by 10ft as compensation to enable the community recover the land in dispute as car park as originally intended….”

In establishing the respective rights asserted in connection with the dispute before the trial Court, both parties called witnesses and tendered documents in support of their respective cases. While the Appellant called three witnesses in proof of his case – CWI1 – the Appellant; CW2 – Saturday Friday, who resided on the land in dispute and CW3 – Surveyor Tamunokuro Amos Opuaji, a registered Surveyor, the Respondents called two witnesses – DW1 – Benson L. Davidson and DW2 – the 7th Respondent.

At the end of the trial at the lower Court, the learned trial Judge accepted the evidence presented by the Respondents as more probable, sound, cogent and convincing, against the evidence led by the Appellant. This finding resulted in Judgment being entered in favour of the Respondents.

Meanwhile, the learned trial Judge made the elaborate findings based on the evidence led by the parties in reaching his decision that the Appellant did not establish his entitlement to the reliefs sought. Specifically, at pages 214 to 216 of the record of appeal, the learned trial judge outlined the incidences of material contradiction in the Appellant’s averments and the evidence elicited from the Appellant’s witnesses. The learned Judge found that the Appellant as CW1 testified that the land allocated to him extended to the swamps but could not specify the size of the said land. During cross-examination, the Appellant stated that pegs were used to demarcate his land from others. On the other hand, the Respondents pleaded that, like the other allottees, the land allocated to the Appellant is 50ft by 70ft.

Still on the contradiction in the Appellant’s case, the trial Judge found that the Appellant testified that the land allocated to him was swampy. However, during the course of cross-examination, the Appellant admitted that the land was cleared, and a road was constructed. This shows that the land was in fact not swampy as alleged by the Appellant and the Respondents’ case that the land was a dry ground and bushy is more probable. In addition, the Appellant stated that when the land was allocated to him, he immediately surveyed the land to the knowledge of the community residents and indigenes. The Appellant neither presented the said survey plan nor call any other person as witness to confirm this fact.

In relation to CW2’s testimony, the learned trial Judge found that CW2 stated that he had lived in a one room batcher built on the disputed land since 2005 and had been paying rent to the Claimant without hinderance until 2007, but under cross-examination, he said that he started living there since 2000. On a related note, the learned trial Judge found that CW3’s testimony and Exhibit 13 – the survey plan drawn by CW3 is at variance with the facts observed on ground during the visit by the trial Court to the locus in quo. In Exhibit 13, it is shown that there is no road between the disputed land and the undisputed land which the Respondents alleged was the land allocated to the Appellant. However, during cross-examination and when he was also confronted with CW2’s testimony, CW3 admitted the existence of a road between the disputed land and the undisputed land as well as the lands belonging to other members of the Community. On the other hand, Exhibit 14 tendered by the Respondents clearly shows that a road separates the disputed land from the other lands. This fact was also confirmed by the trial Court during its visit to the locus in quo.

I have painstakingly alluded to the definite findings of the trial Court, the basis upon which the Court reached its conclusion in giving Judgment in favour of the Respondents. Indeed, this Court is not in the habit of interfering with the findings and conclusions of a lower Court, which were reached, upon a dispassionate appraisal of the pleadings as well the evidence elicited by the parties before the Court. Ipso facto, the interference by this Court will only be warranted where it is found that the findings are not only perverse but also where the conclusions were reached because of an incorrect application of the applicable law. See RABIU Vs. ADEBAJO (2012) LPELR – 9709 (SC), OKOYE & ANOR Vs. OBIASO & ORS [2010] 8 NWLR (Pt.1195) 145 SC, IFETA Vs. SPDC NIG LTD [2006] 8 NWLR (Pt. 983) 585.

Indeed, the law is well settled that before a Court can grant a party’s relief for declaration of title over land, such a party must properly establish and prove his entitlement to the declaration by cogent evidence. The Supreme Court in the case of ONOVO & ORS Vs. MBA & ORS (2014) LPELR-23035 (SC) at 27, paras. A – E, per OGUNBIYI, JSC reiterated thus:
“The law is also settled that, in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence, they are entitled to the declaration sought. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 445. Also, the case of Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616 at 631 where it was held by this Court that: “In an action for declaration of title to land it is trite law that the plaintiff must prove title or at least prove to have been in exclusive possession as approved in the case of Ekpo v. Ita II NLR 68 and held further in the case of Idundun v. Okumagba (1976) NMLR 200. Further, he must on the strength of his case and not on the weakness of the defence.”
See the provision of Section ​137(1) of the Evidence Act; KOPEK CONSTRUCTION LTD. Vs. EKISOLA (2010) LPELR – 1703(SC), OLATOMIDE & ANOR Vs. IKUMUYILO & ORS (2019) LPELR – 48374(CA) and OLATUNJI & ORS Vs. AYENI (2019) LPELR – 48495(CA). 

As noted earlier in this judgment, while establishing his entitlement to the reliefs sought, the Appellant led (oral and documentary) evidence to show that (a) the land in dispute was part of the land allocated to him by the community in 1980; (b) he has been in possession of the land in dispute since same was allocated to him by the community in 1980; (b) a survey plan was commissioned upon allocation of the land in dispute to the Appellant. With respect to the survey plan, the learned trial Judge had found that the Appellant failed to produce the survey plan allegedly made when the Community allocated the referenced land to him in 1980. In addition, due to the material contradiction between the survey plan – Exhibit 13 – produced by the Appellant and the testimonies of CW2 and CW3 as well as the Exhibit 14, tendered by the Respondent, and also the observation of the Court when it visited the locus in quo, no probative was ascribed to the contents of Exhibit 13, and I believe that in the face of the said contradictions, which I had earlier referenced in the course of this Judgment, the learned trial Judge cannot be faulted.

Nevertheless, in view of the entire facts pleaded and evidence adduced before the trial Court, can it really be asserted that the Appellant did establish his entitlement to the reliefs sought. Even though the Respondents have denied and joined issues with the Appellant on the fact that the land in dispute forms part of the land allocated to him in 1980, there is however no dispute on the fact that the Appellant has been in possession of the land in dispute since the 1980 allocation. Appellant pleaded at paragraph 11 of the Statement of Claim that “he immediately took possession of the land and started filling it with mud and sand great cost putting up temporary structures, block house and left and open space for further development.” See page 8 of the record of appeal. In response to this averment, the Respondents pointedly admitted the Appellant took possession of the land in dispute when at paragraphs 9 and 11 of their Amended Statement of Defence and Counter Claim, it was averred that the Appellant “built his house opposite the land now in dispute and continue to use the land in dispute as space for his blocks. He assumed ownership and the community did not object tacitly confirming his ownership” and the Appellant “assumed ownership by reason of the conduct of the community”. These are the words of the Respondents before the Court and I am at a loss as to how the Respondents, who have by their action or omission expressed their consent to the Appellant’s exercise of right of ownership by possession over the land in dispute are now turning around after several years of long possession to claim that the land in dispute was not originally allocated to the Appellant. Even though the Appellant did not expressly plead the defence of laches and acquiescence, I believe the principle relating to that defence will bar the Respondents from asserting a claim contrary to the one asserted by the Appellant, particularly on the fact that the land in dispute forms part of the land allocated to him in 1980. As pronounced by the Supreme Court in IDUNDUN v OKUMAGBA (1976) 9 – 10 SC 227, there are five accepted methods of proving ownership of land, that is, (1) by traditional evidence; (2) by production of documents of title; (3) acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner; (4) acts of long possession and enjoyment of the land; (5) proof of possession of connected or adjacent land 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. 

The Appellant in this case has established that he had enjoyed undisturbed possession of the land in dispute and by Section 143 of the Evidence Act, 2011, when the question in a case is as to whether a person is the owner of a thing he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. See also the decision in ABDULLAHI Vs. NUHU (2013) LPELR – 22625(CA). The Appellant has shown that land in dispute has become his because the Community who originally owned the said land had allocated it to him in 1980 and he has dispossessed the Community by building batchers on the said land and putting tenants into possession. This is consistent with the evidence elicited from DW2 during cross-examination at pages 194 to 196 of the Record of Appeal. If the Respondents’ position that the land in dispute was not allocated to the Appellant, they are under the bounden duty to present material evidence in rebuttal of the incidence of the several acts of possession carried out by the Appellant. See MAJEKODUNMI Vs. ABINA [2002] 3 NWLR (Pt. 755) 720 SC.

Now, the fulcrum of the Respondents’ case is that any allocation made in favour of an allottee is not absolute, but such land can be recovered for overriding community purpose, on the condition that the allottee is given another piece of land as replacement. On the other hand, Appellant asserted that once a land is allocated by the Community, the allottee owns the land in perpetuity. However, in paragraph 2(d) of the Appellant’s Reply to the Amended Statement of Defence and Counter-Claim, the Appellant conceded that land given to community members may be taken for overriding community purpose, but before such acquisition, there must be proper dialogue between the allottee, and the community and provision shall be made for a replacement. My noble Lords, I must say that, with the state of evidence on record, the Appellant cannot seriously be contending that the Respondents/Community cannot recover the land in dispute from an allottee including the Appellant, for overriding community purpose. In the letter dated 12th August, 2007 admitted as Exhibit 9, and found at page 78 of the record of appeal, the Appellant had written to the Chairman of the Community clearly agreed with the Community’s decision to recover the disputed land for community purpose but merely pleaded with the Community to ensure that a replacement land of the same quality with the recovered land, is given to him. For ease of reference, the relevant portion of the said letter is reproduced below:
“Now, that Fimie-Ama Community has decided to retrieve the land from me for construction of road, town hall and car park, the Community should also remember that the land measured 73fts, 6inches, 81ft. I am not stopping the community from doing what is in their mind. The community should also make sure, that I am allocated a strong land measured as stated above. The community should think of labour during the evacuation of my blocks from the present site of the new site. During the evacuation, should any block break, it should be replaced.
In your paragraph/Heading 10, the Community strongly promised to compensate me adequately, but to my greatest surprise, nothing has been done to that effect.
In the light of the above, I strongly appeal to the community to please ensure that a suitable land is re-allocated to me.”

See also letter dated 6th November, 2007 admitted as Exhibit 10, found at page 79 of the record of appeal. The contents of Exhibits 9 and 10 clearly suggest an inference that the Appellant had no problem with the community practice of recovering lands from allottees, for overriding community purpose. This Court cannot give in to the submission by the Appellant that the interest in lands allocated by the Fimie-Ama Community to its members are held in perpetuity. Rather, as the overwhelming evidence on record shows, such lands can be acquired for overriding community purpose, subject to provision of the replacement land. Although, the Appellant had contended that he was not a party to the proceedings in the native arbitration resulting in the resolutions contained in Exhibit 3 titled “Arbitration into Fimie-Ama Dispute” dated 5th October, 2004, issues surrounding the dispute before the Court in the instant case was deliberated upon and it was decided that the land allocated to the Appellant herein should be extended “by 20ft towards the riverbank and 10ft by the side”. It was also decided that the land in dispute “must be used for public exigency and not for any private use”. This is also evidence that the Community may acquire land in dispute for community purpose, contrary to the position taken by the Appellant.

I am unable to either openly or remotely perceive any seeming design by the Appellant to go against the practice in his community, but I see a man who is desirous of ensuring that he is adequately compensated for his property which was acquired for public use. I must say that there is no credible evidence on record, which can be acted upon by the Court, showing that the Appellant has been allocated a replacement land. As a matter of fact, the 1st Appellant who testified as DW2 stated during cross-examination that no agreement was reached for alternative land to be given to the Appellant. See page 196 of the Record of Appeal, where DW2 stated thus:
“… it is not correct that the Claimant was to be given an alternative land since the Community has taken the land to build Town Hall.
It was not agreed that an alternative land be given to the Claimant.“

This piece of evidence contradicts DW2’s statement on oath found at page 86 of the Record of Appeal, that the Appellant was given an alternative land, when the undisputed portion of the Appellant’s land was extended by 20ft by 10ft towards the mangrove, apparently in line with the resolution contained in Exhibit 3. When the evidence of a witness violently contradicts each other, then that is a danger signal. A trial Court is enjoined not to believe contradictory evidence. Contradictory means what it says – contra-dictum – to say the opposite. It is the duty of the parties to explain the contradictions as it is not the duty of the Court to speculate and proffer explanations in the testimonies of the witnesses. See AREHIA Vs. STATE (1982) LPELR – 543 (SC). The Court is not expected to pick and choose which of the witnesses to believe. See the decision in ALLASURE Vs. ODEZEH (2021) LPELR-53531(CA). 

The contradictions in DW2’s testimony is material and impugn the evident fact that an alternative land was provided to the Appellant as replacement for the acquisition of the land in dispute. The only conclusion I am bound to reach is that the Respondents have not fulfilled the mandatory conditions for the acquisition of the land in dispute from the Appellant for overriding community purpose. Put in another way, even though the Respondents’ Community has the power to acquire lands allocated to its community members for public purpose, subject to provision of alternative replacement to the allottee, the Appellant has not been provided any alternative land in this case. Therefore, the purported acquisition of the land in dispute is invalid.

In the end, the Appellant’s appeal succeeds. The decision of the trial Court contained in the judgment delivered on 27th January, 2017 is hereby set aside. Reliefs 1 and 2 contained in the Appellant’s Statement of Claim is hereby granted. The sum of N1,000,000.00 (One Million Naira) is awarded in favour of the Appellant in respect of relief 3. The reliefs sought in the Respondents’ Counter-Claim is dismissed in its entirety. Costs of N500,000.00 (Five Hundred Thousand Naira) is awarded in favour of the Appellant.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the lucid judgment prepared by my learned brother, Kolawole, J.C.A., with nothing useful to add.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I read the draft of the judgment delivered by my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA.

I agree with the reasoning and order(s) stated in the judgment and which I hereby adopt as mine.

Appearances:

MRS. C. N. ANABRABA. For Appellant(s)

SOTARI F. TAMUNOWARI, ESQ. WITH HIM, FRANK ALA, ESQ. For Respondent(s)