FRANCIS OGU & ORS v. DONATUS CHIMEZIE ANYANWU
(2018)LCN/11639(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of June, 2018
CA/OW/197/2013
RATIO
TRADITIONAL EVIDENCE OF TITLE TO LAND
To successfully rely on traditional evidence to prove title to a land, the party must plead and prove the following facts:
a.Who founded the land in dispute,
b.How the land was founded, and
c. The particulars of intervening owners through whom he claims. per MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
- FRANCIS OGU
2. THEOPHILUS OKERE
3. ONYEJELEM NWAGWU
4. PETER NGWURUKWE
5. CAJETAN MADU Appellant(s)
AND
DONATUS CHIMEZIE ANYANWU
(For himself and on behalf of the grandsons of Ibezimako of Egberede Nguruof AbohMbaise Local Government Area) Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This is an appeal emanating from the decision of the Imo State High Court, sitting at Aboh Mbaise, Coram: Hon. Justice U. D. Ogwurike, J., (hereinafter referred to as the lower Court and learned trial judge respectively), wherein the learned trial judge entered judgment against the defendants/appellants (hereinafter referred to as the appellants) and ordered as follows:
In the final analysis, I hereby enter judgment in favour of plaintiffs against the defendants and order as follows:
(1) I hereby declare that the plaintiffs are entitled to the right of occupancy of that piece or parcel of land known as and called Ala Isi Eke Nguru lying and situate at Egberede Nguru in Aboh Mbaise Local Government Area of Imo State and shown and delineated in the plaintiffs Survey Plan No. MCC/IMD008/2004 Exhibit A.
(2) The defendants, their servants or agents are hereby restrained from entering, building and or continuing to build any structure on the land in dispute.
(3) The defendants jointly and severally are hereby ordered to pay to the plaintiffs the sum of N100,00.00 (One Hundred Thousand Naira) being damages for trespass on the said land.
The defendants shall also pay costs to the plaintiffs which I assess and fix at N10,000 (Ten Thousand Naira).
The suit which served as the precursor for this appeal was commenced by the plaintiff/respondent (hereinafter referred to as the respondent), on behalf of himself and grandsons of Ibezimako of Egberede Nguru of Aboh Mbaise Local Government Area, Imo State, whereby by their amended statement of claim claimed jointly and severally against the appellants for the grant of the following reliefs:
1. A declaration that the plaintiffs are entitled to right of occupancy of that piece or parcel of land known as and called ORU ISI EKE NGURU lying and situate at Egberede Nguru of Aboh Mbaise Local Government Area within jurisdiction.
2. Injunction restraining the defendants, their servants and or agents from building and or continuing to build any structure on the land in dispute.
3. N10,000,000.00 (Ten Million Naira) being special and general damages for trespass.
The respondent’s case was that his ancestor Edozie deforested and was the original owner of a piece or parcel of land known and called Ala Isi Eke Aguru part of which is now in dispute. He pleaded and led evidence to show how the said Ala Isi Eke Nguru land devolved on the Edozies descendants up to his father, Anyanwu, from whom he claims. He stated that the Ala Isi Eke Nguru was donated to Umunoatu Autonomous Community to site their market and to leave the land when the market is relocated. He further stated that the market was eventually/subsequently relocated to a new site by the AbohMbaise Local Government Authority sometimes in 1990, as a result of which he and his family reclaimed their land, and have since been in possession of the land. He further said that sometimes in the year 2000 the appellants started to trespass on the part of the Ala Isi Eke Nguru, which belong to his family (hereinafter referred to as the land in dispute), by heaping sands and gravel on the land. He also claimed that the appellants went further by attempting to erect a permanent building on the land, thus, he brought this action to restrain them.
The defence of the appellants on the other hand and on their own part, was that the land in dispute is a path way to the Eke Nguru Market through which people from their village, Okwu village enter into the market. They claimed that the land was owned by their forefathers from time immemorial and had stalls built by their forefathers, from whom they now claim. They stated that their ancestor Okwu deforested the land and passed the same to his descendants which includes the appellants. However, the appellants failed to state how the land they claimed was deforested by Okwu, their ancestor, and from whom it passed from the descendants of Okwu down to them. That is, they failed to link their root of title and or trace the genealogical passage of the land from the original owner and/or occupier as alleged by them and how it now devolved on them.
Also, the appellants stated that contrary to the claim of the respondent, the Eke Nguru Market is owned and controlled by the AbohMbaise Local Government Authority, but their witnesses summersaulted under the heat of cross-examination, when they admitted that the Eke Nguru Market was a communal land before it was turned to a market and went further to state that the appellants are neither trying to take the respondents family land by force nor contest the ownership of the land in dispute with them.
In a reserved judgment, the learned trial judge after due evaluation of all the pieces of evidence adduced by the parties, found the respondents case more probable, consequently he entered judgment in his favour as earlier reproduced in this judgment.
Obviously and being dissatisfied with the said judgment, the appellants appealed against the decision of the lower Court vide their notice of appeal dated and filed on the 22nd day of October, 2012. The appellants grievances against the judgment were captured in their three grounds of appeal, which are reproduced without their particulars as follows:
GROUND ONE
The learned judge of the trial Court erred in law when she held that the plaintiffs action is not statute-barred.
GROUND TWO
The Learned Judge of the trial Court erred in law when she held that the AbohMbaise Local Government Council is not a necessary party to this suit and that the plaintiffs suit is competent.
GROUND THREE
The Learned Judge of the trial Court erred in law by holding that the plaintiffs are entitled to the right of occupancy over the land in dispute and awarded them N100,000 damages for trespass when there was no proof of such right by the plaintiffs.
In accordance and compliance with the rules of this Court, the record of appeal was duly compiled and transmitted to this Court and the same was served on the respondent. Thereafter, the parties filed and exchanged their respective briefs of argument. The appellants brief of argument prepared by E. C. Ekechukwu; Esq. dated the 26th day of January, 2016 was filed on the 28th day of January, 2016. On the other side of the divide, the respondents brief of argument prepared by Chidi Nworka, Esq., was filed on the 3rd day of March, 2016.
Towards the determination of this appeal, the learned counsel for the appellants distilled three issues for resolution. The issues are reproduced below as follows:
(a) Whether the respondent’s suit is statute barred in view of the provisions of Section 3 of Imo State Limitation Edict, 1994. This issue relates to Ground 1 of the grounds of appeal.
(b) Whether the AbohMbaise Local Government is a necessary party whose non-joinder is capable of rendering this suit incompetent. This issue relates to Ground 2 of the grounds of appeal.
(c) Whether the respondent established his family’s title to the land in dispute as to entitled them to a declaration of title, injunction and damages for trespass in their favour. This issue relates to Ground 3 of the grounds of appeal.
The above issues for determination were materially and or substantially adopted by the respondent’s counsel, save for minor variation in the use of words. The said issues donated by the appellants counsel for resolution/ determination of this appeal are hereby adopted by me for the determination of the said appeal.
ISSUE ONE.
The learned counsel for the appellants contended that a calm and close examination of the respondents amended statement of claim would reveal that the respondents cause of action arose in December, 1990, when the AbohMbaise Local Government Authority relocated the Eke Nguru Market from the respondents alleged land to another location. He argued that as a result of the relocation, the land (old site) becomes liable to recovery by the respondent. He further stated, that there is no evidence that the respondent or any of his brothers applied to the AbohMbaise Local Government for the recovery of the said land.
The learned appellants counsel argued that from 1990 to 2004 when this case was filed, was more than 10 years limitation period specified by the provision of Section 3 of the Limitation Law of Imo State, 1994, for the bringing an action for recovery of land. The learned counsel further argued that the general principle is that where the law provides for the bringing of an action within a specified period, in respect of a cause of action accruing to the plaintiff, proceeding shall not be brought after the time prescribed by the statute. He referred us to the cases of Nigeria Ports Authority Plc. V. Lotus Plastics Ltd. (2005) 19 NWLR (Pt. 959) 158 and Egbe v. Adefarasin (No. 2) (1987) 1 NWLR (Pt. 47) 1.
The learned counsel for the appellants then maintained, that the implication for the failure of the respondent to file his action within the time prescribed by the statute is that, the respondent has lost his right of action, as the action is no longer justiciable in the eyes of the law. He referred us to the case of Daudu v. University of Agriculture Makurdi (2003) ALL FWLR (Pt. 176) 687. In addition, the learned counsel for the appellants submitted that where the statutory defence of limitation law is raised and sustained, the proper order to be made by the Court is to dismiss the action and where the proceedings in the case have been concluded, the decision of the Court would be adjudged a nullity and accordingly set aside. He supported his submission with the case of Forestry Research Institute of Nigeria v. Gold (2007) ALL FWLR (Pt. 1044) 1. Thereby, the learned counsel urged us to resolve Issue No. 1 in favour of the Appellants and to dismiss the Respondents suit for being statute barred.
In reply, the learned counsel for the respondent raised three posers requiring answers in order to resolve this issue. The posers are as follows:
(i) What is the provision of Section 3 of the Statute of Limitation Law of Imo State, 1994 (ii) When did the cause of action arise in this case
(iii) Is this action statute-barred
In providing answers to these posers, the learned counsel for the respondent conceded that by virtue of the provision of Section 3 of the Limitation Law, actions for recovery of land is required to be commenced within 10 years from the period when the cause of action arose. However, he stated that a close perusal of the respondents amended statement of claim would reveal that the appellants trespassory acts that led to this action were committed in the year 2000 and 2004, and this action was commenced sometimes in the year 2004. Thus, he submitted that the respondent’s action cannot be any means of computation be held to be statute barred.
It is a trite law that the proper document to be examined in order to discover, whether or not a plaintiff cause of action is barred by statute is his statement of claim vis-a-vis other processes used in initiating the proceedings. See Federal University of Technology, Minna & Ors. v. Okoli (2011) LPELR 9053; Egbe v. Adefarasin (No. 1) (1985) NWLR (Pt. 3) 549; (1985) LPELR 1031 and Capital Bancorp Limited v. Shelter Savings and Loans Limited & Anor. (2007) 1 SC.
Before proceeding, it will be of great help to briefly explain what statute bar means. In the case of Araka v. Ejeagwu (2000) 12 S.C. (Pt. 1) 99, the Supreme Court, Per Kalgo, JSC enunciated as follows:
statute-barred simply means barred by a provision of the statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid effect. The bar can be lifted or the limit extended only if the statute allows it to be done. Where there was no such extension, the action carried out will be invalid, and the Court will treat it as such.
In the instant case, the operative statute being relied upon by the appellants to challenge the jurisdiction of the lower Court to entertain the respondent’s case abinitio is Section 3 of the Statute of Limitation, Imo State, 1994, which provides as follows:
No action shall be brought by any person to recover any land offer the expiration of 10 years from the date on which the right of action accrued to him or, if it accrued to some persons through whom he claims, to that person.
Relating the above position of the law to the instant case, the respondent in paragraphs 12 and 14 of his amended statement for claim pleaded copiously and led evidence to show that the appellants trespassory acts which necessitated this action were committed in the year 2000 and 2004, respectively. For clarification, convenience and proper understanding, the paragraphs under reference are reproduced as follows:
12. Sometime in the year 2000, the 6th defendant caused heaps of sand and gravel to be dumped on the land in dispute and thereafter started block moulding industry thereon.
14. Recently, in March, 2004 the 1st to the 5th defendants forcefully entered the land in dispute and started erecting a permanent structure on the land in dispute despite protestations by the plaintiff.
From the above reproduced paragraphs of the respondents amended statement of claim, it is evident and clear that the respondents cause of action was based on events that occurred between the period’s of 2000 March, 2004. It is thus pertinent to observe, that this case was commenced by the respondent vide his writ of summons and statement of claim on the 20th day of April, 2004. Thus, I do agree with the learned trial judge and the learned counsel for the respondent, that the respondents cause of action is competent and properly filed within time. Therefore, this issue is resolved against the appellants.
ISSUE TWO.
Regarding this issue, the learned counsel for the appellants argued that AbohMbaise Local Government Authority is a necessary party in the case, and whose absence has rendered the decision of the lower Court a nullity. He insisted that from the respondent’s own pleadings, and appellants statement of defence, AbohMbaise Local Government Authority is a necessary party in the case. He added that in the respondents amended statement of claim, the respondent admitted that the land in dispute was a market formerly under the control and management of AbohMbaise Local Government Council, but they claimed that the council had abandoned the market site. The learned counsel for the appellants argued, that in order to properly determine whether or not the Council had abandoned the market site, the Council had to be made a party. He further contended that appellants in their statement of defence averred that the land is still a market and by virtue of Section 58(1) of the Imo State Local Government Administration Law of 2000, the market is statutorily under the management and control of the Council. Thus, the respondent has no title to the market.
In addition, the learned appellants counsel submitted, that it is trite law that all persons whose interests will be or is likely to be affected by the result of a suit, should be joined as parties to the action. He referred us to the cases of BSG Energy Holdings Ltd. v. Spears (2013) ALL FWLR (Pt. 694) 105 and Onabanjo v. Ewetuga (1993) 4 NWLR (Pt. 288) 445. He further submitted, that failure to join the AbohMbaise Local Government in this suit is fatal to the just determination of this suit since the interest of the AbohMbaise Local Government in the subject matter of the suit has been established as to make it a necessary party. He thereby urged us to resolve this issue in favour of the appellants.
The learned counsel for the respondent in reply, contended that the respondent has no complaint against the AbohMbaise Local Government Authority and its presence was not needed to effectively resolve the dispute between the parties in this case. He stated that the parties in this case were ad idem that the Eke Nguru Market had been transferred to a new site and the land on which the market was formerly located reverted back to the original owners. Thus, he submitted that the Aboh Mbaise Local Government Authority is not a necessary party and cannot be compelled to take part in a case it has no interest in. He referred us to the cases of Ehimare & Anor. v. Emhonyon (1985) 1 NWLR (Pt. 2) 177 and Ige v. Akunyemi (1994) 11 KLR (Pt. 23) 399. He thereby urged this Court to resolve this issue in favour of the respondent.
A necessary party has been described by the apex Court, per Ogwuegbu, JSC in the case of Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567) 546; (1998) LPELR 700 to mean:
someone whose presence is necessary as a party. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and effectively and completely settled unless he is a party.
Having the above description in mind, the next question to be asked and answered is whether there is a dire need for AbohMbaise Local Government Authority to be made a necessary party in this case To answer this question effectively, the pleadings in respect of which the parties joined issues have to be examined. It is pertinent to observe that in this case, it is not the whole of the old Eke Nguru Market that is in dispute, but a part of it. In fact, the appellants stated that the land in dispute does not form part of the old market, but a path way to the said market. Also, it is significant to observe that both parties were claiming right of ownership over the land in dispute. In these circumstances, I do not share the view of the learned counsel for the appellants, that the Aboh Mbaise Local Government Authority must be made necessary party by the parties for the effective and effectual determination of the respondent’s case. In any event, the Local Government Authority had sufficient knowledge of the existence of this case, but chose to stand aloof or stay away. To properly buttress this point, paragraphs 1 & 12 of the written deposition on oath by DW4 is very instructive, where he stated and I quote as follows
I, AMBROSE UZOMA UGBOAJA, legal practitioner, Christian, Male, Nigerian citizen of No. 13 Ajoku Street, Owerri, Imo State do hereby state on oath as follows:
1. That I am a legal practitioner engaged by AbohMbaise Government for legal matters involving the said AbohMbaise Local Government.
2. That after reading the various pleadings filed in Court by the parties to the suit, I have the authority of the AbohMbaise Local Government to state that the old Eke Nguru Market site belongs to the AbohMbaise Local Government and has not been abandoned by the Local Government which still maintains its statutory presence within the market site.
Based on the above revelation, the AbohMbaise Local Government Authority can be held to have had knowledge of the existence of this case, but chose to stay away from the battle ground for reason(s) best known to it. In any event all the essential facts needed for the just determination of this case were properly placed before the lower Court, thus, non-joinder of the AbohMbaise Local Government Authority is not fatal to this case, as the appellants counsel has urged us to believe and or hold. See the case of Mogaji v. Mogaji (1986) LPELR 1891. Therefore, this issue is resolved against the appellants.
ISSUE THREE.
The learned counsel for the appellants in arguing this issue, contended that the respondent failed to establish clearly, the area, identity and boundary features of the land in dispute. The learned counsel argued that the respondents survey plan tendered and admitted in evidence as Exhibit A did not show any of the important features on the land. The enumerated features are as follows: Motor park, Independent National Electoral Commission (INEC) office, and the commercial activities still going on, on the land. Thus, the appellants counsel submitted that the respondent has failed to prove the extent of the land to which his claim relates. Consequently, according to the learned counsel, the judgment of the lower Court has been rendered a nullity. He called in aid the cases of Adeyori v. Adeniran (2001) 10 NWLR (Pt.720) 151 and Iordye v. Ihyambe (1993) 3 NWLR (Pt. 280) 197.
In addition, the learned counsel for the appellants submitted, that since the respondent relied on customary inheritance in proof of their title to the disputed land, he must succeed on the strength of his case by proving how his ancestor acquired title to the land until it got to him. He supported his submission with the case of Mobolaji v. Salisu (2007) 3 ALL FWLR (Pt. 374) 3791. The learned counsel argued, that the respondent merely stated that his ancestor owns and has been exercising maximum acts of possession over the land, but failed to state how his said ancestor came to own the land and how the same was converted to a market. The learned appellants counsel further argued that that there was no pleading or evidence of any gift or acquisition of the land as to explain the change from an inherited farm land to a market. Going further, the learned appellants counsel submitted that the respondent failed to prove the root of his title as required by law and the lower Court was wrong to have entered judgment in his favour. Thus, he urged this Court to resolve this issue in favour of the appellant and set aside the decision of the lower Court. He supported his stance with the cases ofNdukuba v. Izundu (2007) 1 NWLR (Pt. 1016) 423; Eze v. Atasie (2000) 10 NWLR (Pt. 676) 470 and Lebile v. Registered Trustees of Cherubim & Seraphim Church (2003) 2 NWLR (Pt. 804) 399.
In reply, the learned counsel for the respondent set out by conceding, that in an action for declaration of title, the plaintiff must describe the land in dispute with such reasonable accuracy that the identity of the land will not be in doubt. He referred us to the case of Odiche v. Chibogwu (1994) 12 KLR 64. However, he stated that the respondent tendered a Survey Plan which clearly showed the extent, dimensions and the identity of the land, as Exhibit A. The learned counsel continued and stated that the respondent duly pleaded on the Ala Isi Eke Nguru (part of which the Eke Nguru Market and the land in dispute are located) was deforested by his ancestor Edozie and how the said land devolved on him. He also stated that the respondent pleaded how the part of the Ala Isi Eke Nguru was donated to the community for purpose of establishing the Eke Nguru Market, and when the market was relocated to a new site, the original owners of the land took back their lands. Thus, he submitted that the respondent has by his pleadings and evidence in support thereof, established his title to the land in dispute, based on traditional history as required by the law. Thus, he is entitled to the judgment given in his favour by the lower Court. He referred us to the cases of Kodilinye v. Odu (1935) 2 WACA 366; Akinola v. Oluwo (1962) ANLR 225; Idundun v. Okumagba (1978) 9 & 10 SC 246 and Ezeogu v. Onwuchekwa (1997) 4 NWLR (Pt. 502) 689 in support of his submission. The learned counsel for the respondent hereby urged this Court to resolve this issue in favour of the respondent.
It is now well established that the trial Court has the primary duty and/or responsibility of admitting and ascribing probative value to the evidence duly adduced on record. That bounden task belongs to the trial Court or learned trial judge. And when the learned trial judge has duly and effectively performed or discharged his duty by making a finding based on the evidence adduced before him, an appellate Court is enjoined not to hastily interfere with such a finding, except where it has been shown that the learned trial judge’s findings is perverse; or acted on a wrong principle of law in reaching his decision or making his finding(s). See the cases of Okoye v. Obiaso (2010) 8 NWLR (Pt. 1195) 145; Amadi v. Federal Republic of Nigeria (2008) 12 SC. (Pt. 111) 55 and Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282. The baseline for this principle is that, it is only the trial Court or learned trial judge that had the sole opportunity of seeing and hearing the witnesses while they were testifying and had the opportunity to observe their demeanours. As a result, thereof, he is at an advantage and well positioned to pronounce on their credibility or ascribe probative values to the pieces of evidence so adduced and not the appellate Court, which neither heard the witnesses nor saw them. It follows therefore, that when a trial Court unquestionably evaluates the evidence and appraises the facts of a case, it is not the business of the appellate Court to substitute its own views for the views of the trial Court.
It is instructively important to point out herein that the subject matter of this case is with regard to the legal tussle between the parties as to who among the parties is entitled to the certificate of occupancy of the land in dispute. It is well established that in an action for declaration of title to land, a plaintiff is expected to prove his case as to entitle him to the declaration, and not rely on the weakness of the defence. But where the plaintiff has made out a prima facie case, he is allowed to rely on evidence adduced by the defendant(s) which supports his case. See Woluchem v. Gudi (1981) 5 S.C. 291; Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1 and Fasikun II v. Oluronke II (1999) 2 NWLR (Pt. 589) 1.
Also, it is well settled that the various ways by which a party can establish his title to a land are as follows:
(i) Traditional history.
(ii) Production of documents of title, which is duly authenticated and executed.
(iii) By positive acts of ownership extending over a sufficient length of time.
(iv) By acts of long possession and enjoyment of the land.
(v) By 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.
See Idundun v. Okumagba (1978) 9 10 SC 337; Ndukuba v. Izundu (2007) 1 NWLR (Pt. 1016) 432, Adesanya v. Aderonmu (2000) 6 S.C. (Pt. 11) 18 and Amaechi & Anor. v. Amaechi (2013) LPELR 20638.
It is enough if a party who intends to establish his title to a land places reliance on any of the modes of establishing title referred to above.
The respondent in the instant case as well as the appellants sought to establish their title to the land in dispute through traditional evidence or history. To successfully rely on traditional evidence to prove title to a land, the party must plead and prove the following facts:
- Who founded the land in dispute,
- How the land was founded, and
- The particulars of intervening owners through whom he claims.
See the cases of Elegushi v. Oseni (2005) 14 NWLR (Pt. 945) 348; Popoola v. Balogun (2007) 8 NWLR (Pt. 1037) 574 and Omin v. Etim (2003) 6 NWLR (Pt. 817) 587.
How well did the parties fare in tailoring their respective cases in line with the above established procedures of establishing title to land through traditional history. The respondent in paragraph 8 of his amended statement of claim pleaded as follows.
8. The original owner of the land in dispute was one Edozie who deforested it. Edozie begat Dimoji. Dimoji begat Iheajuemu. Ihejuemu begat Ibesimako. Ibesimako begat Anyanwu. Anyanwu begat Donatus Anyanwu, the plaintiff.
(See page 10 of the record of appeal.)
The above quoted averment was confirmed by the respondent in his evidence when he testified as PW1. (See page 18 of the record of appeal). Clearly, it can be held without gainsaying that the respondent has successfully discharged the requisite burden of proof placed on him to establish his title through traditional history and the baton has been passed to the appellants to also discharge their burden.
To discharge this burden, the appellants pleaded in paragraph 10 of their amended statement of defence as follows:
10. The Defendants deny paragraph 8 of the statement of Claim and instead aver that the people of Ahamukwuna Ofeke including the Defendants inherited the land in dispute from their fore-fathers as their own part of AmaAhia where they had carried on their various trade undisturbed. The Defendants ancestor, Okwu deforested the land in dispute from virgin forest and exercised acts of ownership with his descendants until it got to the Defendants and others from Ahamukwuna Ofeke.
(See page 15 of the record of appeal).
However, during the course of hearing in this case, the 2nd appellant while testifying as DW1, merely stated that the respondent’s family are not the owner of the land in dispute and that the land in dispute is owned by Okwu village. Also, appellants DW4, Ambrose Uzoma Ugboaja, on his own part claimed that the land in dispute belonged to the AbohMbaise Local Government Authority. In fact, the said DW4 deny knowledge of the real owners of the land in dispute and maintained that the AbohMbaise Local Government Authority is the only owner of the land that he is aware of. (See page 59 of the record of appeal). I must say that the pleadings and evidence of the appellants in addition to not meeting the required standard demanded to establish title through traditional evidence or history; their pleadings and evidence in support thereof are laced with several contradictions.
Thus, placing the traditional evidence of the respondent and that of the appellants on an imaginary scale, the scale could be conveniently held to have favourably tilted to the side of the respondent. Therefore, the finding by the learned trial judge in favour of the respondent in this respect is justified and I have no inclination whatsoever to disturb or interfere with the same.
On the identity of the land, it is to be noted that notwithstanding the requirement of the law that in an action for declaration of title to land, the party seeking the declaration must describe the identity of the land with some degree of certainty, failing which his action may be held to have failed. See Adomba v. Odiese (1990) NWLR (Pt. 125) 165; Olusanmi v. Oshasona (1992) 6 NWLR (Pt. 245) 22 and Owhonda v. Ekpechi (2003) 17 NWLR (Pt. 849) 326. However, where the land is shown to be well known to the parties, any lapse in the description of the land can be waived. See Ogedengbe v. Balogun (2007) 9 NWLR (Pt. 1039) 380 and Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192. In the instant case, the respondent did not only file a survey plan which clearly delineated the area of land to which he sought declaration to, the parties to a large extent were ad idem on the area of the land in dispute. The fact that the parties call the land by different names does not really matter as long as the land and the area in dispute has been sufficiently identified and delineated. Thus, the contention of the appellants counsel with regard to the uncertainty regarding the identity of the land in dispute is highly misplaced and accordingly discountenanced by me. On the whole, this issue too is resolved against the appellants and in favour of the respondent.
In the premise, this appeal is found by me to be unmeritorious and the appellants contentions therein are grossly misconceived or highly misplaced, and accordingly discountenanced. Thus, this appeal is dismissed by me for lacking in merit. The decision of the trial Court in respect of this case is affirmed by me. Costs in the sum of N50,000.00 is awarded against the appellants and in favour of the respondent.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading the leading judgment prepared by my learned brother, OREDOLA, JCA. This is to state that I am in agreement with the manner in which the issues considered in the appeal have been resolved and that I have nothing useful to add by way of contribution to the judgment.
Accordingly, I too, find the appeal to be unmeritorious and dismiss the same. I also abide by the order in relation to costs contained in the leading judgment.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and Conclusions of my learned brother, M.A. OREDOLA JCA, that this appeal lacks merit.
I too dismiss it and abide by the consequential orders in the lead judgment.
Appearances
Chief I. M. KadurumbaFor Appellant
AND
Chief B. N. NwambaraFor Respondent
