JOHNSON OFIGO v. GILBERT EZEOKE
(2019)LCN/12779(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/B/134/2009
RATIO
LAND LAW: DECLARATION OF TITLE TO LAND
“It is a long settled principle of land law that in an action for declaration of title to land, the onus lies on the party claiming title to satisfy the Court that he is entitled on evidence adduced by him to declaration of the piece of land claimed. That is to say, it is duty of the party who seeks a declaration of title to land to establish and proved his claim by credible evidence. The onus therefore lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. He must of necessity rely on the strength of his own case and not on the weakness of the defendant’s case. See EZULUMERI OHIAERI & ANOR. VS. ADINNU AKABEZE & ORS. (1992) 2 SCNJ 76; OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849) 326; ELEMA VS. AKENZUA (2000) 6 SCNJ 226; YUSUF VS. ADEGOKE & ANOR. (2007) 4 SCNJ 77.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
LAND LAW: FAILURE TO IDENTIFY THE LAND IN DISPUTE
“…the failure of a plaintiff to identify or ascertain the land in dispute, its dimension and locality will result in the dismissal of the suit. An order for declaration of title to land being discretionary cannot be made by any Court when the identity of the land in dispute is not clearly and unambiguously established. Therefore, no Court will grant a decree of declaration of title to land or a decree of entitlement to a right of occupancy, or even to an injunction over a piece of land whose identity or certainty is not precise and clear. Simply put, once the identity of the land over which declaration is sought is not clear, the case of the plaintiff is doomed to fail. See BENEDICT OTANMA VS. KINGDOM YOUDUBAGHA (2006) 1 SCNJ 94; IJAMA OTIKA ODICHE VS. OGALI CHIBOGWU (1994) 7 ? 8 SCNJ (PT. 11) 317; MIDFORD EDOSOMWAN VS. KENNETH I. OGBEYFUN (1996) 4 SCNJ 21.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
JOHNSON OFIGO Appellant(s)
AND
GILBERT EZEOKE Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Delta State, Effurun Judicial Division, delivered on the 21st Day of December, 2005 wherein the plaintiff?s (now Appellant) claim was dismissed.
The Appellant herein had as plaintiff in the lower Court commenced an action vide a writ of summons filed on 20/7/88 against the Respondent herein and one other as defendants.
By an amended statement of claim dated 1/5/2007, the appellant claimed the following reliefs:
12. In the circumstances the plaintiff instituted this action against the defendants claiming jointly and severally as follows:
(a) A declaration that the plaintiff is the person entitled to the grant of the customary right of occupancy in respect of the parcels of land lying and situate at Igbudu Market (now Enerhen Market) and marked as parcels A and B in the land in dispute.
(b) The sum of N50,000.00 being general damages for trespass, in that on or about the 1/6/88, the defendant with his servants and agents and without the consent or permission of the plaintiff, broke and entered a parcel of land lying and situate behind the old Igbudu market within the jurisdiction of the Warri High Court, and cleared and destroyed the plaintiff?s various crops, on the land commenced building operations on the said land which has been in peaceful possession of the plaintiff since 1976 without let or hindrance from anybody including the defendants.
(c) An order of perpetual injunction restraining the defendant, his servants, agents and privies from committing further acts of trespass on the land including building on it which is marked out and described as parcels A and B in Plan drawn for and in the name of Mr. Frank Onome Mukoro-Mowoe, the plaintiff?s vendor.
The said 4th amended statement of claim and the further, further amended statement of defence dated 11/7/2004 (pages 54 – 57 of the record) were the extant pleadings upon which evidence was led by the parties at the trial Court.
During the hearing, the Appellant as plaintiff testified and called three other witnesses.
The Respondent in his defence also testified and called three other witnesses.
At the close of hearing, counsel for both parties addressed the Court and in a judgment delivered on 21/12/2005, the Appellant’s claim was dismissed.
Being dissatisfied with the said judgment, the Appellant filed a notice of appeal on 7/3/2006.
In compliance with the Rules of this Court, the parties filed and served their briefs of arguments which they subsequently adopted and relied on at the hearing of the appeal on the 22/1/2019.
In the Appellant?s brief of argument filed on 17/10/2017, the following three issues were formulated for determination.
(1) Whether the learned trial Judge was right having regard to the pleadings and evidence before her and her earlier decision in OFIGO VS. OMAGBEMI in Suit No. EHC/199/95, when she held that the plaintiff has failed to establish the identity of the land in dispute and dismissed the plaintiff?s claim in its entirety? (Grounds 2, 3, 4 and 6)
(2) Whether the learned trial Judge was right when she held that the plaintiff must prove that the land is in non-urban area to establish his claim for customary right of occupancy and where the land is in urban area where there is customary right of occupancy, the High Court has no jurisdiction? (Ground 1)
(3) Whether the learned trial Judge was right when she held that the plaintiff failed to pass the elementary test of establishing his right to the land which is unidentified? (Ground 5)
In the Respondent’s brief of argument filed on 4/12/2017 but deemed properly filed on 10/10/2018, two issues were distilled for determination as follows:
(1) Whether the learned trial Judge was right in dismissing the Appellant?s claim?
(2) Whether the learned trial Judge was right when he held that the Appellant must prove that the land is in a non-urban area to establish his claim for customary right of occupancy?
The Appellant also filed a Reply brief of argument on 21/1/2019 but deemed properly filed on 22/1/2019.
The parties issue 2 are in tandem while the Appellant?s issues 1 and 3 are covered by the Respondent’s issue 1. I will therefore consider this appeal on the basis of the three issues as raised by the Appellant. I will consider issues 1 and 3 together as they are interrelated.
ISSUES 1 & 3
Herein learned counsel for the Appellant submitted that the trial Court was wrong to have held that the plaintiff who commissioned a surveyor to draw up the survey plan of the land in dispute for him was incapable of tendering it in evidence himself because it does not accord with Section 91(2) of the Evidence Act 1990 (now Section 83(2) of the Evidence Act 2011).
He referred to the judgment of the trial Court at page 43 of the record to contend that, having rightly held in one breath that the applicable law is Section 91 of the Evidence Act but only to refuse to admit the Appellant?s survey plan in evidence and marked it rejected is contrary to the laid down principles of law. He cited the case of OBEMBE VS. EKELE (2001) 10 NWLR (PT. 722) 677 at 690 ? 691; IGBODIM VS. OBIANKE (1976) 9 ? 10 SC 179 and AKPAN VS. OTONG (1996) 10 NWLR (PT. 476) 108.
He argued further that the Appellant does not need to give evidence of why the surveyor was not in Court before the survey plan can be admitted as an exhibit moreso that the basis for admissibility of document in evidence is relevancy, therefore the learned trial Judge was wrong to reject the Appellant?s survey plan on the ground that the surveyor who prepared it was not called to tender same.
He was also of the contention that the wrongful rejection of the Appellant?s survey plan led to miscarriage of justice because it led to the decision of the trial Court that there is no document before the Court to identify the land in dispute.
Learned counsel further submitted that the learned trial Judge ought to have taken judicial notice of her earlier decision in OFIGO VS. OMAGBEMI SUIT NO. EHC/119/95 (unreported) which relates to the same piece of land in dispute in the present case and which ended in favour of the Appellant.
In support of his argument that a Court of law is entitled to take judicial notice of its judgment whether reported or unreported he cited the following cases. OKWUOSA VS. OBIORA (2009) 8 NWLR (PT. 1147) 593 at 627 and OSAFILE VS.ODI (NO.1) (1990) 3 NWLR (PT. 137) 130. The same goes for Section 74 of the Evidence Act 1990 (now Section 102 of the Evidence Act 2011).
Learned counsel also pointed to the fact that detailed references were made to the said case of OFIGO VS. OMAGBEMI in the Appellant counsel?s final address in the trial Court and the Respondent?s counsel replied to that point.
It was further submitted that the learned trial Judge did not properly evaluate the pleadings and evidence before her which showed that the land in dispute was known to the parties hence she came to the wrong conclusion that the Appellant failed to establish the identity of the land. Relying on the case of OSHO VS. APE (1998) 8 NWLR (PT. 562) 492, he argued that when a land in dispute is known to the parties, the issue of proof of identity of the land does not arise.
Reference was made to the pleadings and evidence of the Appellant as well as that of the Respondent to justify his assertion that the identity of land was not in issue but well known to the parties.
On the principle guiding evaluation of evidence by a trial Court, he cited the following cases: LAGGA VS. SARHUNA (2008) 6 – 7 SC (PT. 1) 101; BASSIL VS. FAJEBE (2001) 4 SC (PT. 11) 119 and MOGAJI VS. ODOFIN (1976) 4 SC 91.
Continuing with issue No. 3 which is whether the learned trial Judge was right to hold that the plaintiff failed to pass the elementary test of establishing his right to the land which is unidentifiable.
Learned counsel submitted that there are five methods to prove title to land and proof of one method suffices to entitle a claimant to the declaration. He then referred to paragraphs 4, 5, 6 and 14 to 16 of the 4th Amended statement of claim as well as Appellant’s evidence in chief at page 47 of the record to contend that the Appellant proved his root of title from Frank Mowoe to Egborge family who were the original owners of the land but that on the contrary the Respondent did not prove the root of title of his predecessor in title.
On the identity of the land, learned counsel referred to paragraph 3 and 9 of the Appellant’s 4th amended statement of claim as well as paragraph 2 of the further, further amended statement of defence and also the evidence of the parties to contend that there is no dispute on the identity of the land in dispute.
Furthermore, he argued that the erroneous decision of the learned trial Judge in refusing to admit the Appellant?s survey plan in evidence and marking it ‘Rejected’ negatively affected the judgment because there was no longer any document before the Court to identify parcels A and B.
Dwelling on the issue of acts of possession, learned counsel referred to paragraphs 8 and 9 of the Appellant?s 4th amended statement of claim as well as his evidence at page 46 of the record which he says are neither challenged nor contradictory.
On the other hand, he referred to the evidence of the Respondent at pages 55 and 56 of the record to contend that the land stated in Exhibit ‘A’ (Deed of Conveyance) tendered by the Respondent referred to a land behind Gardner Hotel and not behind Igbudu market while the certificate of occupancy also mentioned Otikpo close and not Igbudu market, therefore, the Respondent has no title and is not in possession of the land in dispute which is located behind Igbudu market, (now Enerhen market) and having proved a better title, the Appellant is to be held as the person in lawful possession of the said land in dispute.
He added that, having established his possessory right to the land, the Appellant is entitled to damages for trespass against the Respondent.
It was then urged on this Court to resolve the issues in favour of the Appellant.
In their reply, learned counsel for the Respondent submitted that, in actions for declaration of title to land, the onus is on the plaintiff to establish by credible evidence that he is entitled to the declaration sought and in doing so he must rely on the strength of his own case and not on the weakness of the defendant?s case. He cited EYO VS. ONUOHA (2011) All FWLR (PT. 574) 19 at 23; EYA VS. OLOPADE (2011) All FWLR (PT. 584) 28 and SHASI VS. SMITH (2010) All FWLR (PT. 573) 1231.
He referred to paragraphs 4 to 6 of the 4th amended statement of claim to submit that, though the Appellant claimed to have bought the land from the 2nd defendant (now deceased) he did not tender any title document nor establish how the grantor came about the land. In other words, he did not plead how the vendor Mr. Frank Mowoe came about the land in dispute and the only evidence of PW1 that would have help his case was expunged from the record because it was not supported by any pleading and there is no appeal against the issue.
It was further urged on this Court to discountenance the Appellant’s submission with regard to Frank Mowoe?s root of title because it did not meet the requirements of the law as held in OGUNLEYE VS. ONI (1990) 2 NWLR (PT. 135) 745 and ADEWUYI VS. ODUKWE (2005) 14 NWLR (PT. 945) 473.
Learned counsel further submitted that, where a party relies on and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the Court, and other evidence of acts of possession after which the grant will merely go to strengthen the grant as held in ODOFIN VS. AYOOLA (1984) 11 SC 72 at 116.
He added that from the pleadings and evidence of the parties at the trial Court, the title of the Appellant was put in issue and this he failed to prove leading to his claim being dismissed.
On the identity of the land, learned counsel submitted that the Appellant failed to prove the identity of the land in dispute. He referred to paragraphs 3, 6 and 7 of the 4th amended statement of claim and paragraph 2 of the further, further amended statement of defence to submit that the parties joined issues on the identity of the land and this places the onus of proving same on the Appellant and this he failed to do as held by the learned trial Judge.
On the complaint that the survey plan sought to be tendered in evidence was wrongly marked ?Rejected? by the learned trial Judge, it was submitted that the said survey plan having been marked ?Rejected? in an earlier ruling by the learned trial Judge, it was wrong for the Appellant to still seek to tender it in evidence a second time because that will amount to a Court overruling itself having become functus officio upon the first ruling made.
He added that by Section 68 of the Evidence Act, the survey plan ought to be tendered by the surveyor who prepared it and not the Appellant, who ought to have ordinarily prepared a litigation survey plan showing clearly the land in dispute and the boundaries and features thereon.
Learned counsel also submitted that the failure by the Appellant to prove the exact extent and identity of the land in dispute renders his claim unsustainable because a declaration of title to land can only be granted where the land is ascertainable with precise boundaries and which onus is on the Appellant to prove. He cited the OKOKO VS. DAKOLO (2006) All FWLR (PT. 336) 201 at 239 and IORDYE VS. IHYAMBE (2001) FWLR (PT. 31) 2881.
On the acts of possession, learned counsel submitted that where the plaintiff fails to prove his root of title any proof of acts of possession will fail because evidence of acts of possession after a grant will only go to strengthen the grant. Therefore, since the Appellant failed to prove his title he cannot succeed in claiming act of possession on the land in dispute.
On the Appellant’s complaint that the learned trial Judge erred by failing to take judicial notice of Suit No. EHC/119/95, OFIGO VS. OMAGBEMI which case dealt with the same land, it was submitted that the said judgment was not pleaded by the Appellant and it is his duty to tender same in evidence at the trial and not to smuggle same through the back door by raising it in his written address. He added that the judgment in the said suit No. EHC/119/95 having not been tendered in evidence at the trial, it cannot now be relied upon by this Court.
I have duly considered the submissions of counsel for the parties as well as perused the record of appeal with particular reference to the pleadings, and evidence adduced in support. Of great relevance is also the judgment of the lower Court.
It is a long settled principle of land law that in an action for declaration of title to land, the onus lies on the party claiming title to satisfy the Court that he is entitled on evidence adduced by him to declaration of the piece of land claimed. That is to say, it is duty of the party who seeks a declaration of title to land to establish and proved his claim by credible evidence. The onus therefore lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. He must of necessity rely on the strength of his own case and not on the weakness of the defendant’s case. See EZULUMERI OHIAERI & ANOR. VS. ADINNU AKABEZE & ORS. (1992) 2 SCNJ 76; OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849) 326; ELEMA VS. AKENZUA (2000) 6 SCNJ 226; YUSUF VS. ADEGOKE & ANOR. (2007) 4 SCNJ 77.
Also of paramount importance is the proof of the identity of the land for which a declaration is sought. Therefore in a claim for declaration of title to land, the first and foremost duty on the claimant is to describe the land in dispute with such reasonable degree of certainty and precision that its identity will no longer be in doubt. In other words, the land must be identified positively and without any ambiguity. Thus the mere mention of the name of the land in dispute without stating clearly the area of land to which the claim relates is not enough description.
Consequently, the failure of a plaintiff to identify or ascertain the land in dispute, its dimension and locality will result in the dismissal of the suit. An order for declaration of title to land being discretionary cannot be made by any Court when the identity of the land in dispute is not clearly and unambiguously established. Therefore, no Court will grant a decree of declaration of title to land or a decree of entitlement to a right of occupancy, or even to an injunction over a piece of land whose identity or certainty is not precise and clear. Simply put, once the identity of the land over which declaration is sought is not clear, the case of the plaintiff is doomed to fail. See BENEDICT OTANMA VS. KINGDOM YOUDUBAGHA (2006) 1 SCNJ 94; IJAMA OTIKA ODICHE VS. OGALI CHIBOGWU (1994) 7 ? 8 SCNJ (PT. 11) 317; MIDFORD EDOSOMWAN VS. KENNETH I. OGBEYFUN (1996) 4 SCNJ 21.
In the 4th amended statement of claim, the Appellant in giving the description of the land in dispute averred in paragraphs 3, 4, 6 and 14 as follows:
3. The land in dispute in this case lies and situates next to the old Igbudu market, now known as Enerhen market, within the jurisdiction of the High Court, Warri.
4. Sometime in 1976, 2nd defendant Frank O. Mowoe, Esq., informed the plaintiff that he had land to sell to the plaintiff if the plaintiff was interested.
The plaintiff agreed to buy. He took the plaintiff to the land and also gave to the plaintiff a copy of the survey plan of the land in the name of Frank Onome Mukoro-Mowoe. It was divided into two parcels – A and B. The plaintiff and the defendant bargained and agreed on the sum of N3,600.00 (Three Thousand and Six Hundred Naira) which amount the plaintiff paid to him. Frank O. Mowoe took the plaintiff to the land and marked out the area which constitute parcel ‘A’ in the presence of witnesses and put the plaintiff into possession. The plaintiff thereafter took effective and physical possession of it by clearing the weeds on it from time to time.
Frank O. Mowoe gave the plaintiff receipt for the sum of N3,600.00 the plaintiff paid to him. Plaintiff shall rely on it. The plaintiff also caused the parcel ‘A’ granted to him to be surveyed. It is Plan No. DSC/M/1/66A dated 10/10/76 prepared by D.A. Nzenwa, a licensed surveyor.
6. Some years later, after the death of his brother, Aba Mowoe, 2nd defendant Frank O. Mowoe informed the plaintiff that he intended parcel ?B? of the land at Igbudu market for his late brother and now that he was dead, he pleaded with the plaintiff to give up possession of the parcel of land at Effurun in exchange for the parcel ‘B’ of the land at Igbudu market. Plaintiff agreed. Frank took possession of the land at Effurun and the plaintiff took possession of the parcel ?B? of the land at Igbudu market. Thus the plaintiff became the owner in possession of all the parcel of land at Igbudu market consisting of parcels ‘A’ and ‘B’.
14. Plaintiff avers that the land Frank Mowoe leased to him at Igbudu market, now Enerhen market originally belonged to Egborge family of Igbudu to which Frank Mowoe also belong maternally. Frank?s mother was Mene and Mene’s mother was Neibo.
In his evidence at the trial, the Appellant testified at page 41 of the record that:
“The land is situate near old Igbudu market (now Enerhen market).”
Further at page 46 he testified thus:
“The land is near Enerhen market. It is behind Igbudu market now Enerhen market).”
That is the much given by the Appellant in his bid to give the description or identity of the land in dispute. Nothing whatsoever was said about the dimension, size or features on the land, neither was any evidence given as per the boundary neighbours. The Appellant’s witness, PW1, PW2 and PW3 did not help matters in terms of helping out with the description of size of the land. For instance the PW2 who claimed to be aware of the transaction testified at page 65 of the record that:
‘I know the plaintiff. I remember years ago. The plaintiff is my friend. He saw land which he wanted to buy and he told me. Himself, Frank Mowoe (late) and myself went to the land. We saw the land. Frank Mowoe and the plaintiff then measured the land with a tape. The land is behind Igbudu market, now Enerhen market. They settled the amount to be paid in my presence.’
All that the PW2 could state was that the land is behind Igbudu market (now Enerhen market). Though he claimed to be present when the land was measured, nothing further was said about the size and dimension of the land.
The same goes for the PW3 who was even said to be a registered surveyor. He simply stated that the land is in a place behind the old Igbudu market now known as Enerhen market.
Where a party makes a claim on land, that land must be identified positively and without an ambiguity. The land must be so described that the Court will be certain and a surveyor would have no problem identifying its coordinate movements. It is therefore basic that where a plaintiff claims a declaration of title to land and fails to give the exact extent and identity of the land in dispute, his action is bound to fail because the issue of identity of the land is a sine qua non to the success of such claim. See IYAMA OTIKA ODICHE VS. OGALI CHIBOGWU supra and IORDYE VS. IHYAMBE (2000) 12 SCNJ 117; JOSEPH OLUSANMI VS. HENRY OSHASONA (1992) 6 SCNJ 287.
On the Appellant’s failure to show the identity of the land in his evidence, the learned trial Judge held in the judgment at page 118 to 119 of the record as follows:
‘Assuming the plaintiff acquired the land in dispute by legitimate means he has been unable to ascertain with specific where the land is and his title to same. I cannot give the plaintiff the whole world I can only give him that which he asks for and that thing must be specific, and with land, it has to be ascertainable. PW2 did say that the land was sold to the plaintiff to his knowledge which land is behind Igbudu market now Enerhen market. Any land could be behind Igbudu market. It is trite that the weakness of a defendant?s case is no excuse for the plaintiff not to prove his case on a preponderance of evidence.’
Learned counsel for the Appellant had argued that the identity of the land was never in issue because the land is known to the parties as shown in their pleadings and evidence.
I have read through the pleadings and evidence of the parties and I fail to extract where it was so shown that the identity of the land is well known to them. Reference to paragraph 2, 3(i) and 3(iv) of the Respondent’s pleading as well as his evidence at page 76 of the record by the Appellant’s counsel did not in my view disclose or prove that the identity of the land is clear for the purpose of this action.
If anything the Respondent averred in paragraphs 2 and 3 (vii) of the pleading as follows:
2. In further answer to paragraph 3 of the statement of claim. The Defendant avers that the land described or purportedly described in the said paragraph is unknown to the defendant. In this regard, the Defendant will put the plaintiff to the strictest proof of the boundaries and description of the land.
3(vii) The Plaintiff was not in a position to pin point which of the three pieces of the land belonging to the two neighbours of the Defendant to the right and left hand side of his Defendant’s property and the Defendant himself, he claimed to be his (the Plaintiff’s). Thereafter the Plaintiff did not show up in that area any more, until the Defendant was served with his writ of summons sometime in September, 1988.
In his evidence in chief at page 74 of the record he testified thus:
The plaintiff came one day and claimed that he had a piece of land in that area but could not pinpoint where the land is located.
It is correct to state that the onus on the plaintiff to prove clearly the precise area to which his claim relates will not arise where the identity of the land in dispute is not in issue. See GBADAMOSI VS. DAIRO (2007) 1 SCNJ 444.
However, I am of the view that given the averments in the Respondent?s pleadings as earlier set out, it becomes necessary for the Appellant to provide proof of the identity of the land he claims and this he unfortunately failed to do as rightly found by the learned trial Judge and which finding this Court agrees with.
It was also vigorously contended by the Appellant?s counsel that the survey plan sought to be tendered in evidence by the Appellant was wrongly marked rejected by the learned trial Judge and the refusal to allow another copy of the same document to be tendered again through another witness was also wrong, moreover that the said survey plan was the only document sought to be relied on by the Appellant in proof of the identity and description of the said land.
It is trite as earlier stated that in discharging the burden of identity of the land in a claim for declaration of title to the land, the claimant must prove the identity of the land and boundaries of the land in dispute. The burden can be discharged through oral description of the land or by a survey plan showing clearly the area to which the claim relates. Vide PETER OKONKWO & ORS. VS. BERNARD & 5 ORS (2010) 5 – 7 SC (PT. 1) 116.
It is however necessary that a document sought to be tendered in evidence in support of a party?s case must comply with the requirements of the law.
In the instant case, the Appellant sought to tender a copy of the survey plan during the course of his testimony in Court, an objection was raised by the Respondent?s counsel and in upholding the objection and ordering that the said copy of the survey plan be marked rejected, the learned trial Judge at page 43 of the record held thus:
It seems to me that the applicable section here is Section 91(2) of the Evidence Act 1990 and not Section 91(1) (a) as cited by him. First and foremost the witness is not the maker of the document to be tendered.
The witness had said that one Surveyor Ezenwa is the maker of the document sought to be tendered. It follows therefore that from this, it becomes incumbent on the plaintiff to lay sufficient foundation as to why the maker cannot or is not available in Court to tender the document sought to be tendered. He has not done this and I am of the view that to allow this will be prepondent to the defendant. In the circumstances, the objection of learned counsel for the defendant is hereby sustained. The document sought to be tendered is therefore not admissible and plan No. DSC/M/1160A is hereby tendered and marked ‘rejected’. At this stage, Chief B.B.E Idigbe seeks to tender same document as Id. Chief Jemide objects that the matter has been marked ?Rejected? and it is so for all purposes.
Court: The implication of a document marked ‘Rejection’ is that it is rejected. At this stage, the Court asks the counsel to take a date to enable it consider this objection.
This matter is hereby adjourned to the 5th June, 2002 for ruling and for further hearing. No order as to costs. (Underlining is for emphasis)
I indeed endorse the ruling of the learned trial Judge as set out above, given that the Appellant not being the maker of the document sought to be tendered and a proper foundation having not been laid for it to be tendered through him. Unfortunately the maker of the document testified as PW3 and would have conveniently tendered the said document (survey plan) in the course of his evidence but the rush to tender it through the Appellant albeit wrongly led to it being ordered to be marked rejected. It would have been a different scenario if upon the raising of objection, the Appellant’s counsel had withdrawn it and waited for the PW3 who was the surveyor that produced it to tender same as the maker without much ado.
‘On the point that it was wrong for the learned trial Judge to rule that the said survey plan having been tendered and marked ‘Rejected’ cannot be tendered in evidence again through PW3. The law incidentally is very clear to the effect that a document tendered and rejected or marked ?Rejected? cannot be used again in the same proceeding. See AGBAJE VS. ADIGUN (1993) 1 NWLR (PT. 269) 272 and ANDONY VS. AYI (2004) All FWLR (PT. 227) 464 at 484.
Consequently the said copy of a survey plan having been wrongly tendered in evidence and received the sanction of being marked rejected in a Ruling delivered by the trial Court, it stands to reason that the same document no matter under what guise it is sought to be brought in again cannot succeed as it will amount to an affront to the order of the Court and which order can only be upstaged or set aside by any appeal Court where necessary.
Learned counsel for the Appellant had also submitted that the learned trial Judge erred in failing to take judicial notice of the earlier judgment delivered by her in Suit No. EHC/119/95, OFIGO VS. OMAGBEMI because under Section 74 of the Evidence Act 1990 the judgment is a public document of which a Court is entitled to take judicial notice of whether reported or unreported.
While I agree to the said submission that under Section 74 of the Evidence Act Laws of the Federation 1990 (Now Section 122 of the Evidence Act 2011) that the Courts are enjoined to take judicial notice of matters listed thereunder. It does not however foreclose the law that a party who intends to rely on a document or the existence of a state of facts must plead same. Hence in Section 140 of the Evidence Act 2011 it is provided that, when a fact is within the knowledge of any person, the burden of proving that fact is upon him.
I therefore agree with the contention of the Respondent?s counsel to the effect that, if the Appellant is of the view that the said Suit No. EHC/119/95 relates to the present land in dispute, it is his duty to plead same and tender it in evidence to establish that a judgment has been delivered in his favour with respect to the said land. If the Appellant?s arguments is allowed to stand it will no doubt expose the trial Court to the danger of breaching the principle of the law that a Court is not permitted to do a case for any of the parties to a suit but should be seen as an impartial umpire whose duty is to decide matters based on the evidence presented to it and not to embark on an unsolicited voyage of discovery. See USMAN VS. FRN (2015) LPELR 40584 (CA); EBBA VS. OGODO (1984) 4 SC 84; EJOWHOMU VS. EDOK-ETER MANDILAS LTD (1986) 5 NWLR (PT. 39) page 1; A.G ANAMBRA STATE VS. C.N. ONUSELOGU ENTERPRISES Ltd (1987) 4 NWLR (PT. 66) 547.
On the issue of trespass and possession, the law is that where a claimant claims the relief of recovery of possession of a piece of land, he puts his title to the land in issue particularly where the defendant contends as in this case that he is in possession of the land on the ground that he is the owner thereof. See ONUOHA NWOKOROBIA VS. UCHECHI NWOGU & ORS. (2009) 4 ? 5 SC (PT. 11) 144.
However as earlier addressed in this judgment, where a claim is for ownership of land, the plaintiff must prove the identity of the land in dispute, failing which his claim must collapse because the issue of identity of land is germane and paramount in such claim and as such must be ascertained with certainty. See PETER OKONKWO VS. BERNARD & ORS. supra; CHIEF D.M. OKOCHI & ORS. VS. CHIEF A. ANIMKWOI & ORS. (2003) 6 SCM 113.
Furthermore, for a claim for trespass and injunction to succeed, it must be tied to an identified or ascertained area and such claim must be refused if the area to which it relates is vague or uncertain. See UGBO VS. ABURIME (1994) 9 SCNJ 23 and NWOKIDU VS. OKANU (2010) 1 SC (PT. 1) 136.
As rightly held by the learned trial Judge, the Appellant herein failed entirely to properly identify the land in dispute and this renders his claim impossible to grant.
Issues 1 and 3 are therefore resolved against the Appellant.
ISSUE 2
Dwelling on this issue, learned counsel for the Appellant submitted that the learned trial Judge was wrong in law when she stated as follows:
What the plaintiff claim inter alia is for customary right of occupancy. To establish this, the law is that he must prove that the land is not in an urban area. He has not led evidence in this regard.
‘… where the land is in urban area, where there is customary right of occupancy, the High Court has no jurisdiction.’
He then referred to paragraph 12 (a) of the 4th amended statement of claim to contend that the Appellant need not prove that the land he is claiming is not in an urban area to be entitled to the relief for a customary right of occupancy. It was then submitted that the failure by the learned trial Judge to consider the nature of the Appellant?s claim as per paragraph 12(a) led to the erroneous conclusion that the plaintiff has not led evidence in this regard.
Learned counsel also submitted that the jurisdiction of the High Court to determine issues relating to customary right of occupancy is unlimited as held in ADISA VS. OYINWOLA supra and IDJAKPA VS. AJIGBERENO (2009) 6 NWLR (PT. 1136) 151.
Replying on this issue, learned counsel for the Respondent submitted that the learned trial Judge was right to hold that where the land is in an urban area where there is a customary right of occupancy, the High Court has no jurisdiction.
He added that it is the claim of the Appellant that gives the Court jurisdiction and not the defence of the defendant. Reference was then made to the Appellant?s claim in paragraph 12 (a) of the 4th amended statement of claim to submit that though the Appellant sought for a declaration of customary right of occupancy over the land in dispute, he however failed to establish whether the land is situated in an urban area or rural area and the Court cannot embark on such discovery.
It was then urged on this Court to resolve the issue against the Appellant.
The Appellant filed a reply brief of argument on 21/1/2019 and the relevant arguments as contained in pages 2 to 5 therein shall be addressed in this judgment as the need arises.
On this issue, the learned trial Judge held at page 118 of the record as follows:
‘Where the land is in an urban area where there is a customary right of occupancy, the High Court has no jurisdiction. See FUNDUK ENGINEERING LTD. VS. JAMES MCARTHUR AND 4 ORS. 1995 4 SCNJ 240 Ratio 1. The defunct Bendel State legal Notice No. 18 of 1978 (applicable in Delta State) stipulates that the High Court has jurisdiction to entertain and determine all matters affecting the title of land in urban areas. That the mere word customary does not confer jurisdiction but where the land is situated.”
I have read through the pleadings of the parties as well as their evidence in Court. The same applies to the final address by counsel for the parties and I fail to see where the issue of whether the land in dispute is in an urban area and is subject to a customary right of occupancy, the High Court is devoid of jurisdiction to entertain it was raised. In other words, the issue whether or not the trial Court has the jurisdiction to entertain the suit was not raised or argued by any of the parties and it is nowhere shown that, even having raised the issue suo motu, the parties where invited to address the Court on it. To my mind therefore, the said comment on the jurisdiction of the High Court on lands situated in urban areas can best be described as an obiter dictum. Moreso that it did not support the ratio decidendi of the trial Court appealed against.
The Appellant can only properly appeal against a judgment by raising a ground of appeal challenging the ratio decidendi of the judgment of the trial Court and not the obiter dictum. See STIRLING CIVIL ENGINEERING (NIG) LTD VS. AMBASSADOR MOHAMEED YAHAYA (2005) 5 SCM 190. It is therefore not every holding or finding by a trial Court that would give rise to the raising of a ground of appeal as in this case. See KHALED BARAKAT CHAMI VS. UNITED BANK FOR AFRICA PLC. (2010) 2 ? 3 SC (PT. 11) 92.
The basis for the claim of the Appellant being dismissed as can be gleaned from the judgment is that the Appellant failed to prove his title to the land in dispute especially with regard to the identity and location of the said land hence the suit was dismissed.
If the decision was based on jurisdiction, it is not in doubt that the proper order to be made is that of striking out of the suit. To justify the dismissal of the Appellant’s claim the trial Court at pages 118 to 119 of the record held thus:
‘Assuming the plaintiff acquired the land in dispute by legitimate means he has been unable to ascertain with specific where the land is and his title to same. I cannot give the plaintiff the whole world I can only give him that which he asks for and that thing must be specific, and with land, it has to be ascertainable. PW2 did say that the land was sold to the plaintiff to his knowledge which land is behind Igbudu market now Enerhen market. Any land could be behind Igbudu market. It is trite that the weakness of a defendant’s case is no excuse for the plaintiff not to prove his case on a preponderance of evidence. This burden the plaintiff has failed to discharge here. Without belabouring the issues the entire claim seem to me vexatious and unmeritorious. The issues of trespass and jurisdiction (sic) (injunction) cannot arise as the plaintiff has failed to pass the elementary test of establishing his right to the land which is unidentified. Accordingly the claim fails in its entirety and same is hereby dismissed with N10,000 costs in favour of the defendant.’
From the above set out holding of the trial Court it is manifest that the suit was dismissed on the merit because the Appellant could not prove the identity of the land and not on the basis that the trial Court has no jurisdiction to hear the suit because the land is said to be held under customary right of occupancy. See the case of OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849) 326, where the Supreme Court per Musdapher JSC held thus:
There must always be the identity of the land in dispute, proof of existence of a gift or grant must be backed up by credible evidence as to identify extent and location. See Temile V. Awani (2001) 6 SC 164 Vol. 5 MJSC 32. Mere mention of name or that the parties know the extent of the large area of the land is not enough. See Babatola V. Alaworoko (2001) Vol. 5 MJSC 17. Before a declaration of title to land is granted, the land to which it relates must be identified with certainty. If it is not so ascertained the claim must fail.
On this premise, I hold that this appeal lacks merit and it is accordingly dismissed.
The judgment of the High Court of Delta State Effurun Division delivered by R.N. Pemu J. (as she then was) on the 21st day of December, 2005 is hereby affirmed.
N50, 000 cost is awarded against the Appellant.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother SAMUEL CHUKWUDUMEBI OSEJI JCA. I am of the view that the appeal lacks merit and it should be dismissed. I need to say that the Appellant’s pleadings in this case leaves a lot to be desired or indeed, it is inadequate to prove the claim. A claim is won on the pleadings. A sparse statement of claim is not useful to the claimant. Any fact not pleaded cannot be led in evidence, but where it is so erroneously led and admitted, it goes to no Issue.
It is trite that the identity of the land for which a declaration of title is sought must be ascertainable. See OKONKWO & ORS V. OKONKWO & ORS (2010) LPELR-9357 (SC): YESUFU OGEDENGBE & ORS V. CHEIF J.A. BALOGUN & ORS (2007) VOL. 30. WRN 47 AT 57-58. Line 45-15/SC CHIEF THOMAS EKPEMUPOLO & ORS V. GODWIN EDREMODA & ORS (2009) LPELR-1089 (SC): MRS. BUKOLA V. PRINCE OLUSANYA SANYA (2016) LPELR – 41423 CA.
I agree with the learned trial judge that a loose description that the land is behind or beside Igbudu market now Enerhen market is not sufficient to enable the trial judge hold that there was an ascertainable land on which the Appellant could be granted injunction and declaration of title.
In the circumstances, with other erudite reasons given by my learned brother, I agree that the appeal be dismissed. I abide by the order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA.
I am in total agreement with his Lordship that this appeal is devoid of merit and ought to be dismissed. I also dismiss this appeal and affirm the Judgment of the High Court of Delta State Effurun Division delivered by R.N. Pemu J. (as she then was) on the 21st day Of December, 2005.
I also agree with the order as to costs in favour of the Respondent, against the Appellant.
Appearances:
H.E. Aghwana, Esq.For Appellant(s)
Patrick Oganwu, Esq. with him, A. Odhigbo, Esq.For Respondent(s)
