MALL. AMINU TSONFADA & ORS v. MUSA ZUBAIRU (2019)

MALL. AMINU TSONFADA & ORS v. MUSA ZUBAIRU

(2019)LCN/13504(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of June, 2019

CA/IL/19/2019

RATIO

LAND LAW: WHERE THE IDENTITY OF A LAND WILL BE IN DISPUTE IN A LAND MATTER

It is therefore settled that the identity of the land to which the cause of action of the claimant relates is not in issue here. The identity of the land would only be in issue if the defendant in his statement of defence made it one. See Fatuade vs FC Onwoamanam (1990) LPELR 1253 SC; (1990) 3 SC (Pt 11) 138; Ezeudu vs Obiagwu (1986) 2 NWLR Pt 21, 201 @ 208.PER IBRAHIM SHATA BDLIYA, J.C.A.

LAND LAW: WHEN PROOF OF IDENTITY OF A LAND IS NOT NEEDED, THEN THE NEED FOR A SURVEY PLAN IS ALSO DONE AWAY WITH

In other words, the land in issue in this case is well known to the parties thus, the proof of identity does not arise. See Etiko vs Aroyewun (1959) 4 FSC, Oladunjoye vs Akinterinwa (2000) 4 SC (Pt 1) 19. It is on the same basis that a survey plan becomes unnecessary since the identity of the land is not in dispute. See Arabe vs Asanlu (1980) 5-7 SC 78; Kyari vs Alkali (2001) 5 SC (Pt 11) 192; Temile & Ors vs Awani (2001) 6 SC 164.PER IBRAHIM SHATA BDLIYA, J.C.A.

LAND LAW: WHETHER IN THE IDENTIFICATION OF LAND, THE MERE MENTION OF AN AREA IS ENOUGH
it also trite that the mere mention of the area is not enough. The description and extent of the boundaries must be proved with exactitude? the test of certainty and precision is of necessity to ensure whether a surveyor can from the evidence before the trial Court produce an accurate plan of such land?.? See also Governor of Lagos State vs. Ohaigo (Nig) Ltd & Ors (2018) LPELR-4552 (CA).PER IBRAHIM SHATA BDLIYA, J.C.A.

LAND LAW: DECLARATION OF TITLE TO LAND: THE 5 WAYS BY WHICH A PARTY CAN PROVE TITLE OR OWNERSHIP OF A LAND
A claim for declaration of title to land may be proved by any of the five methods of proving title or ownership of land which are:
(a) By traditional evidence;
(b) By production of document of title which must be duly authenticated;
(c) By the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land or by acts of selling, leasing, renting out all or part of the land or farming on it or on a portion thereof;
(d) By acts of long possession and enjoyment of the land; and
(e) By proof of possession of connected or adjacent land in circumstance rending it possible that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See Orianzi v. A. G. River State (2017) 6 NWLR Pt. 1561 P. 224 @ 207, Idundun vs. Okumagba (1976) 1 NWLR P. 200; Piaro vs. Tenalo (1976) 12 S.C. P.31, Okumagba vs. Balogun (1989) 3 NWLR Pt. 108 P. 192; Olukoya v. Ashiru (2006) 11 NWLR Pt. 990 P.1.PER IBRAHIM SHATA BDLIYA, J.C.A.

WHEN THE PROOF OF TITLE IN A DECLARATION OF TITLE TO LAND WILL NOT BE REJECTED

In Ekpemupolo vs. Edremoda (2009) All FWLR Pt. 473 P. 1220 @ 1237-1238, the Apex Court reaffirmed the position of the law as follows:
A declaration of title to a piece or parcel of land can only be granted if the definite, precise and accurate boundaries of it are established. The onus of proof lies on the plaintiff who seeks a declaration of title to and for an injunction to establish with certainty and precision the area of and to which the claim relates.PER IBRAHIM SHATA BDLIYA, J.C.A.

LAND LAW: DUTY OF A PARTY CLAIMING OWNERSHIP OR TITLE TO LAND

See Yakubu vs. Jauroyel (2005) All NWLR Pt. 283 P. 184 @ 212, wherein, this Court held that:
A party claiming ownership of land has a duty to prove identity of same. Where a party who claims ownership land fails to prove the identity of the land by showing the boundary thereof, his case will fail.PER IBRAHIM SHATA BDLIYA, J.C.A.

EVIDENCE THE PARTY CLAIMING DECLARATION OF TITLE TO LAND MUST PRODUCE IN COURT
The law is trite, in a claim seeking a declaration of title to land, the claimant has a duty to either tender a site plan of the land in dispute or adduce evidence in support of same such that, a surveyor, acting on same can properly draw up the exact area or site plan and boundaries of the land. See Governor Lagos State vs. Ohaigo (Nig) Ltd & Anor (2018) LPELR 4552 (CA) and Atanda vs. Iliasu (2013) 18 WRN P.1.PER IBRAHIM SHATA BDLIYA, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

Between

1. MALL. AMINU TSONFADA
(Etsu Yankpa Kokodo)
2. YUNUSA NDAWONDI
3. MOHAMMED KUDU
4. UMAR NDA Appellant(s)

AND

MUSA ZUBAIRU
(For himself and on behalf or the Ejiko family of Lafiagi) Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kwara State High Court of Justice, (the lower Court) in suit No. KWS/141/2015, delivered on the 19th day of December, 2018, presided over by AKINPELU, J. The respondent (as claimant at the lower Court) instituted the said suit by a Writ of Summons which was amended and filed on the 24th of February, 2017.

The historical background facts of the case before the lower Court, could be briefly summarized as follows. The Respondent?s and the appellants? families were related being of common ancestors. The parcel of land in dispute was founded and established by late Etsu Ahmadu then traditional ruler of Lafiagi. At that time a dispute arose on the boundaries of the parcel of land in dispute which was resolved. However, later same dispute reoccurred as to the exact boundaries of the said land. The Emir of Lafiagi, at the time, set up a committee which resolved the dispute between the parties which was accepted by them accordingly. The respondent later permitted Hausa farmers to cultivate the land on the request of the Emir.

The appellants did not agree with the action of the respondent, and in reaction drove the Hausa Farmers out of the land. The Emir of Lafiagi intervened again with the assistance of the Chairman of Edu Local Government Area and the Divisional Police Officer towards resolving the dispute, but to no avail. The Respondent then instituted the said suit before the lower Court, seeking for the following reliefs;
(1) A Declaration that the Claimant is the person entitled to the right of occupancy over all that piece or parcel of land located at Ekwagi Area, Lafiagi, Edu Local Government Area of Kwara State, bounded by Mayaki of Lafiagi family land, Kpotun of Lafiagi family land and a tree planted on an Hill to demarcate the boundary between the Claimant?s family land and the Defendants? land.
(2) Perpetual injunction restraining the defendants, their agents, privies, servants from further trespassing, farming, alienating or dealing with the Claimant?s land herein described in any manner adverse to the Claimant?s interest.
(3) Any other order(s) that the Court may deem just to make in the circumstances.

Pleadings were filed and exchanged by the parties. The suit proceeded to trial, whereat, witnesses testified and documents admitted in evidence. After the adoption of written addresses by learned Counsel, the learned judge of the lower Court delivered judgment in favour of the respondent. Aggrieved by the said decision the appellants (then defendants) filed notice of appeal to this Court challenging the said decision on twelve (12) grounds of appeal.

The appellants? brief of argument was filed on the 12th day of March, 2019, containing four (4) Issues for determination in the appeal, on pages 3 ? 4 thereof. The respondent?s brief of argument was filed on the 8th of April, 2019, with three (3) Issues for determination contained on page 4 thereof. A Reply brief was filed by the appellants on the 15th of April, 2019. The Issues culled out of the grounds of appeal which are contained in the appellants? and the Respondent?s briefs of argument are not dissimilar. They are intertwined, interwoven and dovetailing. Therefore, the said Issues are hereunder Compressed and reframed as follows:
(1) Whether from the pleadings and evidence

before the lower Court the learned trial judge was right in his decision that the identity of land claimed by the Respondent was ascertainable, therefore, it is not an issue in the dispute between the parties.
(GROUND 11).
(2) Whether having regards to the pleadings and the evidence adduced by the parties the lower Court was right in granting the claims of the Respondent instead of dismissing it.
(Ground 1, 2, 3, 4, 5, 6, 7, 8, 9 and 12.

ISSUE 1
Whether, on the pleadings and the evidence adduced before the lower Court, the identity of the parcel of land in dispute was ascertained or ascertainable as held by the learned judge?

On this Issue, Wahab Ismail Esq., of learned Counsel to the appellants, did submit that having regard to the pleadings, the evidence adduced and the admissions made by the respondent, the learned judge of the lower Court erred in law when he held that the identity of the parcel of land in dispute was ascertainable thereby granted an order declaring title and an injunction in favour of the respondent. It is learned Counsel?s further submission that before a declaration of title to land is granted, the

size, dimension, location and boundary of the disputed land must be pleaded and cogent evidence adduced by the claimant. The principles of law enunciated in the cases of Ekpemupolo vs. Edremoda (2009) All FWLR Pt. 473 P. 1220 @ 1238 and Yakubu vs. Jauroyel (2005) All FWLR Pt. 283 P. 184 @ 212 were cited and relied on to buttress the submissions supra.

Submitting further, learned Counsel did contend that by the averments contained in paragraphs 9, 10 and 11 of the Amended statement of Defence, the identity of the land in dispute has been made an issue, therefore evidence must be adduced to ascertain the exact boundaries of same before title can be granted to the claimant (now respondent) as espoused in the case of Governor, Lagos State & Ors vs. Ohaigo(Nig) Ltd &Anor (2018) LPELR-4552 (CA). Learned Counsel contended that the evidence of the respondent (as claimant) as recorded on pages 45 ? 48 of the record of appeal have not sufficiently defined the area of the land in dispute as to its size, dimension and boundaries, to warrant the declaration of title to the respondent.
?
That despite the lack of cogent evidence on the size and

boundaries of the disputed land, the learned judge granted the respondent?s claim of title, instead of dismissing same for want of cogent evidence. It is learned counsel?s, contention that the learned judge of the lower Court only speculated on the identity of the land, since the respondent did admit under cross-examination that the he did not know the identity of the land.

On the requirement of proving the identity of the land in dispute before title could be granted to the claimant (respondent) as espoused in the case of Atanda vs. Iliasu (2013) 18 WRN page 1, learned Counsel did submit that, it is not sufficient to mention or state the name or the location of the land without its size and or boundaries. On the reliance on the existence of a tree on a hill in identifying the land, learned Counsel submitted that, such cannot be reliable evidence in ascertaining the exact identity of the disputed land, more so, when the respondent told the Court that he did not know the boundaries of the land. Concluding, learned counsel did urge that Issue 1 be resolved in favour of the appellants since the respondent failed to prove by cogent evidence the

identity of the parcel of land to which he claimed title thereto.

For the respondent, Manzuma Issa Esq., of learned Counsel, did concede that the respondent had the onus of proving his title to the land in dispute as espoused in the case of Eya & Ors vs. Olopade & Ors (2011) 5 S.C. Pt.II P. 47 @ 66. However, he went on to submit that by the averments contained in paragraphs 23 of the Amended statement of defence and the evidence of the respondent (as CW3), the learned judge of the lower Court was right when he granted title to the respondent in the judgment delivered on the 19th day of December, 2018. Learned Counsel further submitted that, on the pleadings, especially paragraphs 17 and 22 of the Amended statement of claim, and the evidence of DW1 and PW2 under cross-examination, there was no need to prove the identity of the land in dispute since both parties knew its size, and boundaries. That where the parties know the land in dispute by its size, location and features, they are deemed to know the identity of the land, and same cannot be an issue as to the claim of declaration of title. The principles of law enunciated in the case of Ogedengbe & Ors vs. Balogun & Ors (2007) 3 S.C (Pt. II) P. 71 @ 95

were relied on to reinforce the submissions supra. Learned Counsel further submitted that where there has been admission by the parties on the size, location and boundaries of the disputed land as held in the case of Nwokidu & Ors vs. Okanu & Anor (2010) 1 S.C. P. 136 @ 169, the identity of the land can no longer be in issue.

Concluding, learned counsel submitted that the dispute between the parties at the lower Court was limited to the boundaries of the land. It has been further contended that the appellants admitted, in the pleadings and the evidence, that the boundary of the land had been settled by the Late Etsu Ahmadu of Lafiagi 50 years ago, which was later confirmed by the committee set up by the Emir of Lafiagi at the material time. Counsel further contended that the evidence adduced by the respondent in support of his claim of title to the disputed land is credible, reliable and unchallenged by the appellants. This Court has been urged to resolve Issue 1 against the appellants.

Responding to the arguments canvassed in the respondent?s brief of argument, learned

Counsel to the appellant adumbrated that, the assertion that both parties agreed on the size, location and the boundary of the disputed land cannot be correct in view of the pleadings and the evidence adduced before the lower Court. On the issue of settlement of the dispute over the parcel of land having been resolved by a committee set up by the Emir of Lafiagi, learned Counsel contended that there are no pleadings or documents tendered in evidence to support such assertion.

On the issue of the identity of the land in dispute at the lower Court, the learned judge found and held as follows on pages 203 and 204 respectively, of the record of appeal:
Page 203 of the record of appeal
Although the claimant told the Court that he does not know the number of hectres constituting Ejiko family land, he had however testified and adduced evidence as to the dimension of the entire land belonging Ejiko family.
Although, the claimant told the Court that he did not know the size of the land given to CW2, it is however a settled fact that the said allocation falls within the portion of land claimed (sic) by the claimant.”
Page 204 of the

record of appeal
If the claimant is not aware of the extent of his family land, he would not be in a position to tell whether the said land has been encroached on or not so as to warrant the institution of this case.

What determines the identity of a parcel of land which is in dispute, is a survey site plan, drawn up by a qualified Surveyor, or by looking at the pleadings and the evidence adduced to see whether a surveyor acting on same can properly draw up a site plan of the land by means of a surveying plan. The parties before the lower Court did not tender any surveyor site plan drawn up by a qualified Surveyor. The pleadings of the parties in respect of the identity of the land and the evidence adduced, therefore, are to be resorted to in order to arrive at a decision whether the learned judge of the lower Court was right when he held that the identity of the disputed parcel of land was ascertainable in view of the pleadings and the evidence before him.

In paragraphs 6, 11 and 13 of the Amended statement of claim, the respondent as the claimant averred as follows:
6. The claimant avers that Nda Saba owned a large parcel of land

which extended to Ewugi Stream and was the boundary between Lafiagi district and Patigi district
11. The Claimant avers that Nda Saba told the Defendants Ancestors to be farming towards Egbe in the present Kogi State while the Nda Saba himself and his followers would farm towards Lafiagi in the present Edu L.G.A of Kwara State.
13. The Claimant avers the Etsu Ahmadu intervened and idived the land into 2 parts viz: the part to the middle was given to Nda Saba while the defendants were given the parts towards Egbe in Kogi State but the Nda Sabas portion shared boundary with Mayaki of Lafiagi family land, Kpotun Saidu of Lafiagi family land and the defendants portion of the land marked by a tree planted on an hill.?

In his amended witness statement on oath, the respondent as claimant deposed to facts in paragraph 13 thereof as follows:
That Etsu Ahmadu intervened and idived the land into 2 parts viz: the part to the middle was given to Nda Saba while the defendants were given the parts towards Egbe in Kogi State but the Nda Saba?s portion shared boundary with Mayaki of Lafiagi family land, Kpotun Saidu of

Lafiagi family land and the defendants? portion of the land marked by a tree planted on an hill.?

At the lower Court, the respondent as the claimant testified as Pw3 (cw3), under cross-examination, he stated as follows which has been recorded on page 165 of the record of appeal, thus:
Ladan Kwankwarangi does not share boundary with Kokodo. I don?t know the village behind Kokodo. I do not know whether Gwandu when it was not in ruin shares boundary with Kokodo. I do not know the number of hectares of the entire Ejiko land. I do not know Umar Nda (4th deft) or any of his children. I have never met him.
The 3rd Ejiko 1 Lafiagi is named Saliu. I was not born so I do not know when the reign of Saliu was.
The defendants refused to come and sit with us in relation to the land in dispute before we came to Court.
Our claim for boundary as presented in this case has not been up to 10 years
Langbadi is behind Kokodo. I do not know the distance between Egbe & Kokodo though I mentioned Egbe in my statement.

The appellants (as defendants) averred in paragraphs 31 and 37 of the Joint statement of

defence as follows which have been recorded on pages 31 to 33 of the record of appeal;
?(31) Kokodo was founded by Sukudi and has a boundary between Essan stream where the present Essanti village in Patigi L.G.A settled in the east side, Kokodo make boundary with Lafiagi, Eko and towards North side Kokodo share boundary with Daniyan Ndeji which was formally at Tusuma, after the coming of Gbugbu village the boundary was shifted to a river called Egwa in west side which now is the boundary of Kokodo and Gbugbu.
(37) The sharing of boundary betewwn Barazhi belong to Ndasaba and Kunkparata the present Kokodo never exist before and after their departure. Since the inception of Ejiko at Lafiagi, it has never been that they are sharing boundary with Kokodo and this is the sixth Ejiko title holder at Lafiagi. When the land dispute arose between the two parties mentioned above, the Emir of Lafiagi and Divisional police officer Edu Local Government Area Lafiagi intervened over the matter but did not reach any resolution. It was never in history that Ejiko family has control over the aforementioned piece of land. The land belongs to the

ancestors of the defendants.

The 1st appellant (as the 1st defendant) in this written witness statement on Oath deposed to facts as recorded in paragraph 19 thereof which can be found on page 58 of the record of appeal, thus:
That Kokodo was founded by Sukudi and has a boundary between Essan stream where the present Essanti village in Patigi L.G.A settled in the east side, Kokodo make boundary with Lafiagi, Eko and towards North side Kokodo share boundary with Daniyan Ndeji which was formally at Tusuma, after the coming of Gbugbu village the boundary was shifted to a river called Egwa in west side which now is the boundary of Kokodo and Gbugbu.”

The 1st appellant testified as Dw 1 at the trial before the lower Court. His testimony as recorded on page 167 of the record of appeal are as follows:
By my position, I do not know the history of royalty in Lafiagi. Yes, I confirm as stated in my statement on oath that is, is Etsu Ahmadu of Lafiagi that established the boundary between our land & the claimant?s. yes, ex-governor Shaaba Lafiagi is from Kpotun Saidu family as we hear from history. The claimant

does not have any land with us so I canmot tell the Court where Etsu Ahmadu established boundary between our land and the claimant?s land. Yes, I said in my evidence in chief that the Local Govt, Etsu Lafiagi & DPO of the police tried to establish boundary between us and the claimant but same was inconclusive.?

In order to ascertain the identity of a parcel of land the size, dimension as well as its boundaries must be known or stated with precision or accuracy. See Governor of Lagos State vs. Ohaigo (Nig) & Anor (2018) LPELR-4552 (CA). As could be gleaned from the pleadings in the amended statement of claim, the averments contained therein, nothing has been said of the size, dimension, area, boundaries or other physical features of the parcel of land in dispute. All that have been pleaded is that the land in question has boundaries with Mayaki of Lafiagi family land, Kpotun Saidu of Lafiagi family land and the portion of the land marked by a tree planted on an hill. The averments contained in paragraph 13 of the amended statement of claim are imprecise, vague and ambiguous. The witness statement on oath of the respondent and that of the

appellants are also not helpful in the determination of the identity of the disputed parcel of land. The learned judge of the lower Court was therefore not right when he found and held as recorded on pages 200-201 of the record of appeal that:
Arising from the above description, it is clear that the land to which this suit relates is located at a place called Ekwagi in Edu Local Government of Kwara State. According to the claimant, the land can be found and is situate in between the land owned by the Mayaki of Lafiagi family land, Kpotun Saidu of Lafiagi family land and the tree planted on an hill which is taken to be the side demarcating the boundary between the claimants land and the defendants land. In my view, by this description, the identity of the land is ascertainable. This is particularly so when the pleading and evidence of the defendants witnesses also agree with the fact that the land in issue is located at a place which they referred to as both Ekwagi or Barazhi and which they claimed to be in the same geographical area as Kokodo/Kunkparata.
It is therefore settled that the identity of the land to which the cause of

action of the claimant relates is not in issue here. The identity of the land would only be in issue if the defendant in his statement of defence made it one. See Fatuade vs FC Onwoamanam (1990) LPELR 1253 SC; (1990) 3 SC (Pt 11) 138; Ezeudu vs Obiagwu (1986) 2 NWLR Pt 21, 201 @ 208. In this case, the defendants have not made the identity of the land an issue in their pleading and evidence rather what they contest is the ownership of the land by the claimant. In other words, the land in issue in this case is well known to the parties thus, the proof of identity does not arise. See Etiko vs Aroyewun (1959) 4 FSC, Oladunjoye vs Akinterinwa (2000) 4 SC (Pt 1) 19. It is on the same basis that a survey plan becomes unnecessary since the identity of the land is not in dispute. See Arabe vs Asanlu (1980) 5-7 SC 78; Kyari vs Alkali (2001) 5 SC (Pt 11) 192; Temile & Ors vs Awani (2001) 6 SC 164.
The Apex Court, per Ogunbiyi, JSC, when considering what facts are to be expected to be pleaded, and the evidence required when identity of a parcel of land is in issue, held in the case of Atanda vs Iliasu (2013) 18 WRN P.1 @ 18 that;
it is elementary to state therefore that the certainty of

the identity of the ?land in dispute is a sine qua non, a necessity? it also trite that the mere mention of the area is not enough. The description and extent of the boundaries must be proved with exactitude? the test of certainty and precision is of necessity to ensure whether a surveyor can from the evidence before the trial Court produce an accurate plan of such land?.? See also Governor of Lagos State vs. Ohaigo (Nig) Ltd & Ors (2018) LPELR-4552 (CA).
In view of the foregoing adumbration, and the principle of law enunciated in the case of Atanda vs Iliasu (supra) the respondent as claimant as well as the appellants as defendants at the lower Court, failed to establish at the lower Court the size, location, dimension and boundaries of the land in dispute that would enable a surveyor to produce an accurate site plan of the disputed land. The learned judge of the lower Court was therefore not right when he held that the identity of land in dispute was not in issue as it could be ascertained or ascertainable from the pleadings and the evidence adduced therein, by the parties. In the

result, I resolve issue 1 in favour of appellants.

Issue 2
Whether, having regard to the pleadings and the evidence adduced by the parties, the learned judge of the lower Court, was right in granting the reliefs sought by the respondent?

On this issue, Wahab Ismail Esq., who settled the appellants? brief of argument, did contend that the learned judge of the lower Court erred in law when he granted the reliefs sought by the respondent because, the exact size, dimension of the land, its location and boundaries thereof, were not established by cogent and reliable evidence. It is learned counsel?s further submission that where a claimant fails to adduce evidence on facts pleaded as in the instant case, the Court can not to rely on such evidence to grant any declaratory relief sought as enunciated in the cases of Arabe vs Asanlu (1980) 5-7 S.C P.78; Obioma vs Olomu (1978) 3 S.C 1; Ezeoke vs Uga (1962) 1 ANLR P. 482 and Yakubu vs Jauroyel (2005) All FWLR Pt. 283 P. 184.

On the alleged reliance on traditional settlement of the dispute which was initiated by Etsu Ahmadu and the Emir of Lafiagi, learned counsel pointed out that same was

not pleaded, therefore, any evidence adduced on same by the respondent, cannot be relied on to prove the averment contained in paragraphs 1-15 of the amended statement of claim. Concluding, learned counsel did submit that the learned judge of the lower Court erred in law when he granted the reliefs sought by the respondent when there being no cogent and reliable evidence to warrant the decision arrived at. The Court has been urged to resolve issue 2 in favour of the appellants.

Wahab Issa Esq, of learned counsel to the respondent did submit in proving title to the land in dispute, reliance was placed on traditional history which have been pleaded in paragraphs 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 18 and 20 of the amended statement of claim. He went further to submit that the averment contained in the above mentioned paragraphs of the amended statement of claim have been substantiated or establish by the evidence in chief which he adopted during the trial when he testified as CW1. In view of the foregoing, learned counsel adumbrated that the respondent adduced credible evidence on who founded the land in dispute, how it was founded, the

particulars of intervening title holders up to when same was devolved on to him.

On the averments contained on paragraphs 21 and 22 of the Amended statement of claim, learned counsel contended that the evidence of the respondent in paragraphs 12 and 13 of the written statement on Oath, which the appellant did not controvert or challenged, prove same. In law, it was submitted, evidence not controverted nor challenged are deemed admitted and a Court of law is entitled to rely on same in arriving at a decision. In conclusion, learned counsel adumbrated that the respondent adduced credible, reliable and unchallenged evidence of traditional history of the founder of the land in dispute, the intervening title holder up to when he came to acquire title, which the appellants admitted in their pleadings and evidence. Learned counsel did urged that Issue 2 be resolved against the appellants.

Responding to the arguments canvassed in the respondent?s brief of argument, Ismail Esq., of learned counsel, contended that the respondent failed to plead facts supported by credible evidence which could justify the granting of the declaratory relief sought by the

respondent. On the alleged sharing of the land between the parties, learned counsel submitted that the evidence of DW1, who testified on the issue, failed to state the exact boundary or tendered any document containing the report of the committee that was set up to settle the dispute. He referred to the evidence of DW1, on oath at the trial before the lower Court, whereby he denied being in possession of any terms of settlement, and knowing the size of the disputed land, and asserted that there were many people having land in the area. On the proof of title to the land in dispute, learned counsel submitted that in order to succeed, the respondent must strictly prove same by adducing cogent and reliable evidence which he did not. In view of the foregoing, learned counsel contended that the respondent failed to prove his claims at the lower Court as required by law, especially in a claim of declaratory relief, therefore, the learned judge of the lower Court was in error when he granted the claims of the respondent in the judgment delivered on the 19th of December, 2018.

The respondent (as the claimant) at the lower Court, sought a declaration that he is the

title holder or having a right of occupancy over all that piece of land located at Ekwaji Area Lafiagi, Edu Local Government Area of Kwara State, having boundaries with Mayaki of Lafiagi family land, Kpotun of Lafiagi family land and a tree planted on a hill which demarcated the boundary between the claimant?s family land and the defendant land. A party claiming declaration of title to land must plead and prove how he is entitled to the land claimed. He has a duty to, and, must plead and prove how he became the owner of the land, the identity of the land, the size of the land as well as the boundaries of the land claimed. He must also establish his entitlements to the reliefs through adequate pleadings and credible evidence, otherwise his case would be liable to an order of dismissal. The burden is always on the claimant to establish his case without relying on the weakness of the case or defence of the defendant. In other words, the law requires that the claimant must rely on the strength of his own case and not on the weakness of the case of the defendant. This is even so since a declaration relief cannot be granted even upon admission of the defendant.

By virtue of Section 133 (1) and (2) of the Evidence Act, 2011, in civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If the party referred to Section 133 (1) of the Evidence Act adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleadings have been dealt with.
In the case of Lawson vs. Ajibulu (1997) 1 NWLR Pt. 507 P.4 the Apex Court expatiated the principles of law on the burden of proof in civil proceedings, and the onus on a claimant to adduce credible evidence in order to be entitled to judgment thus:
?It is too late in our law to disregard Onus Probandi. The person that asserts must prove and the fact that defendant never proves or even remain silent will not discharge the burden on the plaintiff. The proof

required is the evidence based on facts pleaded in the statement of claim. The primary responsibility of the plaintiff is to prove his case and not rely on the weakness of the adversary?s case.? (Underlining for emphasis)
?
A claim for declaration of title to land may be proved by any of the five methods of proving title or ownership of land which are:
(a) By traditional evidence;
(b) By production of document of title which must be duly authenticated;
(c) By the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land or by acts of selling, leasing, renting out all or part of the land or farming on it or on a portion thereof;
(d) By acts of long possession and enjoyment of the land; and
(e) By proof of possession of connected or adjacent land in circumstance rending it possible that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See Orianzi v. A. G. River State (2017) 6 NWLR Pt. 1561 P. 224 @ 207, Idundun vs. Okumagba (1976) 1 NWLR P. 200; Piaro vs. Tenalo (1976) 12 S.C. P.31,

Okumagba vs. Balogun (1989) 3 NWLR Pt. 108 P. 192; Olukoya v. Ashiru (2006) 11 NWLR Pt. 990 P.1.

On pages 212 to 213 of the printed record of appeal, the learned judge of the lower Court found and held as follows:
?Arising from all the above, I resolve the issue for determination in the affirmative. The claimant having proved the title of his Ejiko family to the land covered by his claims is entitled to the reliefs sought in this suit. His case succeeds in its entirety, I hold that the claimant is the person entitled to the right of occupancy over the land, the subject matter of this suit. Having established ownership to the land in issue an Order of Perpetual injunction is therefore made restraining the defendants, their agents, privies, servants from further trespassing farming alienating or dealing with the claimant?s land described and commonly identify by the parties in any manner adverse to the claimant?s interest. Parties shall bear their respective costs.?
Was the learned judge of the lower Court right when he entered judgment in favour of the respondent (as the claimant) having regard to the pleadings

and the evidence adduced by both parties in support of their respective claims? Before delving into the pleadings and the evidence before the lower Court to ascertain whether the lower Court rightly entered judgment in favour of the respondent or not, it is apt, at this juncture, to state when a Court can grant a declaration of title over a parcel of land to a claimant? In Ekpemupolo vs. Edremoda (2009) All FWLR Pt. 473 P. 1220 @ 1237-1238, the Apex Court reaffirmed the position of the law as follows:
?A declaration of title to a piece or parcel of land can only be granted if the definite, precise and accurate boundaries of it are established. The onus of proof lies on the plaintiff who seeks a declaration of title to and for an injunction to establish with certainty and precision the area of and to which the claim relates.?
Again, in Osuji v. Ekeocha (2009) All FWLR Pt. 450 P. 614 @ 640, it has been enunciated that:
?In case for declaration to title to land, the onus is on the plaintiff to establish his claim with credible and acceptable evidence based on the strength of his own case and not upon the weakness of the case of the

defendant. The plaintiff must therefore satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. In the instant case, the reasoning and conclusion of the trial Court clearly show that the appellant?s case failed to meet up with requirement.?
It is the law that a declaration of title to a parcel of land would not be granted unless the size, dimension, location and the boundary of the land is properly and adequately pleaded, and sufficient credible evidence thereof is produced by the person seeking the declaration. The pleadings and evidence of the claimant must be precise and cogent establishing the size dimension and boundaries of the land in question. See Yakubu vs. Jauroyel (2005) All NWLR Pt. 283 P. 184 @ 212, wherein, this Court held that:
?A party claiming ownership of land has a duty to prove identity of same. Where a party who claims ownership land fails to prove the identity of the land by showing the boundary thereof, his case will fail.?
In seeking for declaration of title to the disputed parcel of land, the respondent, as the claimant, relied on the

averments contained in paragraphs 1-22 of the Amended statement of claim especially paragraphs 1, 2, 3, 6, 8, 9, 11, 13, 15, 16, 19, 20, 21 and 22 thereof. See pages 41 to 44 of the record of appeal. The respondent called three (3) witnesses who testified in support of his claims. They are (i) AbdulMalik Mayaki as DW1 (CWI) his evidence have been recorded on pages 162 to 163, whereas his witness statement on oath can be found on pages 11 to 12 of the record of appeal. (ii) Mallam Sanni of Emi Sakpe Lafiagi. His evidence are recorded on pages 106 to 107 of the record of appeal. His witness statement on oath are contained on pages 13 to 14 of the record of appeal and (iii) DW3 (CW3) Musa Zubairu, the respondent as claimant) his witness statement on oath are contained on pages 45 to 48 of the record of appeal. The gist or summation of the evidence of the three (3) witnesses, named supra have been made by the learned counsel to the claimant (the respondent) in the final written address before the lower Court contained on pages 103 to 108. I adopt and rely on same in this judgment.
The appellants, as defendants, at the lower Court relied on the averments

contained in paragraphs 1-38 in the Joint statements of defence which can be found on pages 25 to 33 of the record of appeal. The appellants called three witness who testified at the trial before the lower Court. The 1st witness, Mallam Aminu Tsonfada?s evidence are located on pages 109-110 of the record of appeal. The 2nd witness is Adam Baba Danmasani as DW2. His evidence before the lower Court can be found on pages 111; DW3 Mohammed Kudu, gave evidence as recorded on pages 111 to 112 of the record. The witness statements on oath of DW1, DW2 and DW3 are located on pages 55 to 60; 61-62 and 65 to 67 respectively. A summation of the evidence of the witnesses referred to supra are contained on pages 109 to 112 of the record of appeal. I adopt and rely on same in this judgment.
A careful or dispassionate consideration of the witnesses statements on oath of PWS (CWS) 1-2, and DW1-3 as well as their evidence before the lower Court, clearly show that none of them stated the size, dimension, location or boundaries of the parcel of land in dispute. The evidence of the witnesses on the identity of the land is imprecise, vague, ambiguous and uncertain. The

law is trite, in a claim seeking a declaration of title to land, the claimant has a duty to either tender a site plan of the land in dispute or adduce evidence in support of same such that, a surveyor, acting on same can properly draw up the exact area or site plan and boundaries of the land. See Governor Lagos State vs. Ohaigo (Nig) Ltd & Anor (2018) LPELR 4552 (CA) and Atanda vs. Iliasu (2013) 18 WRN P.1. The respondent did not adduce reliable or cogent evidence on the exact or precise identity of the disputed land. The Apex Court, in the cases of Ekpemupolo vs. Edremoda (2009) All FWLR Pt. 473 P. 1220-1237; Yakubu vs. Jauroyel (2005) All FWLR pt. 283 P.184 @ 212 and Osuji vs. Ekeocha (2009) All FWLR Pt.490 P.614 @ 640, has had clearly stated that a party seeking a declaration of title to land has a duty to prove the identity of same. Where a party who claims title to land by a declaratory relief fails to prove the exact identity of the dispute land the Court cannot grant such a claim or relief.
I do not agree with Manzama Issa Esq., of learned counsel to the respondent, when he submitted that the identity of the disputed land have been known to the

parties, therefore, it was not an issue before the lower Court. It is also not correct to contend as he did that on the evidence before the lower Court, the identity of the land was ascertainable. I refer to my reasoning in resolving issue 1 earlier in this judgment, and do hereby adopt same ?mutatis mutandis? on the identity of the disputed land, and to hold that the respondent did not adduce cogent evidence on the identity of the land in dispute. He was not entitled to judgment as entered in his favour by the learned judge of the lower Court. I resolve issue 2 in favour of the appellants.

Having resolved the 2 issues in favour of the appellants, the appeal succeeds. The judgment of the lower Court delivered in suit Kws/141/2015, on the 19th of December, 2018, is hereby set aside. The appellants are entitled to cost assessed at N100,000.00 same is awarded to them jointly.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading, before now, the draft judgment just delivered by my learned brother Bdliya, JCA. Having equally read the briefs of argument of the learned counsel to the respective parties,

vis–vis the records of appeal, I have no cause to disagree with the reasoning reached in the judgment, to the conclusive effect that the instant appeal is meritorious.

Hence, having adopted the reasoning in question as mine, I too hereby allow the appeal and set aside the judgment of the Kwara State High Court delivered on December 19, 2018 in suit No. KWS/141/2015. I abide by the order as to cost of N100,000.00 in favour of the Appellants.

HAMMA AKAWU BARKA, J.C.A.: My learned brother Ibrahim Shata Bdliya JCA graciously made available to me the judgment just read in draft.

The two issues herein were admirably resolved and I cannot but concur therewith. I agree with the reasoning and the conclusion reached to the inevitable conclusion that the appeal has merit and it is hereby allowed by me. The decision of the lower Court is hereby set aside with costs of N100, 000 to the appellants.

Appearances:

For Appellant(s)

For Respondent(s)

Appearances

For Appellant

AND

For Respondent