MALLAM MUHAMMADU JIYA V. MUHAMMADU KANYE AGBABO AWUMI & ANOR
(2010)LCN/3553(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of January, 2010
CA/A/35/2006
RATIO
LAND LAW: ON WHOM LIES THE ONUS OF PROOF IN AN ACTION FOR DECLARATION OF TITLE
The settled position of the law as it relates to proof of the identity of the land claimed, by a plaintiff in an action for declaration of title and consequence of failing to do this is clearly stated in the case of BILA AUTA vs CHIEF WILLY IBE (2003) 7 S.C. 129 AT PAGE 136 where the supreme Court stated thus:-
“Now, in an action for declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which a declaration can be attached. See Odesanya v. Ewedimi (1962) 1 All NLR 320. The first duty of the plaintiff who comes to court to claim a declaration of title is to establish to the court clearly the area to which his claim relates. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
LAND LAW: DUTY OF A PLAINTIFF RELYING ON TRADITIONAL EVIDENCE TO ESTABLISH HIS CLAIM IN A DECLARATION OF TITLE
The law is settled that for traditional history or evidence of tradition to sustain a claim for declaration of title, the plaintiff must adduce evidence conclusively establishing: –
- who founded the land in dispute;
- how the person came to found the land; and the particulars of the intervening owners through whom the plaintiff claims.
See ELEGUSHI V. OSENI (2005) All FWLR (Pt. 2821) 1837: and OYADARE V. KEJI (2005) All FWLR (Pt. 247) 1583. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO – SODIPE Justice of The Court of Appeal of Nigeria
Between
MALLAM MUHAMMADU JIYA Appellant(s)
AND
1. MUHAMMADU KANYE AGBABO AWUMI
2. SULE AGBABO AWUMI Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 16/2/2005 by the High Court of Kogi State (coram – Hon. Justice S.K. Otta and Hon. Justice T.S. Yakubu) sitting in its appellate capacity. The said High Court will hereinafter simply be referred to as “the lower court”.
The Plaintiff (now Appellant) instituted the instant action against three (3) Defendants before the Upper Area Court No. 1, Lokoja (which will hereinafter simply be referred to as “the trial court”) claiming the following: –
“1. An order of declaration that the plaintiff owns Sanmi farmland
2. An order that the defendants shall vacate Sanmi farmland immediately and stop further trespass and threats.
3. An order of permanent injunction to restrain and stop the defendants and their agents from trespassing on the Sanmi farmland.
4. N2,000.00 damage for trespass.”
The facts upon which the Plaintiff (who will hereinafter be simply referred to as “the Appellant”) relied upon in support of the claims stated above are that he is the customary owner of a large piece of land called Sanmi land, situate at Tsanku in Kupa District of Kogi Local Government Area, Kogi State. The Appellant claimed to have inherited the said Sanmi land from his parents and that he had been in peaceful occupation of the same until recently when the first of the Defendants he sued trespassed thereon; and challenged his (i.e. Appellant’s) title thereto. In this regard the Appellant said that the first of the Defendants he sued claimed to have got the land from the second of the Defendants he sued and who is a native of Gogban village. The Appellant further said that the third of the Defendants he sued is a relation of the first of the Defendants. This Defendant the Appellant further said was allowed by his father to farm on part of the land in dispute about 10 years previous. That the said Defendant had always paid tributes but stopped doing this immediately his (i.e. Appellant’s) father died and has remained on the land unlawfully. It is the case of the Appellant that the unlawful entry by the Defendants on Sanmi farmland has deprived him of the use of his land and has occasioned him damages. The Defendants/Respondents all denied the Appellant’s claims before the trial court.
The trial court, having had the benefit of the evidence adduced by the parties and their respective witnesses and having also visited the locus in quo entered judgment in favour of the Plaintiff/Appellant on 20/6/2003. The Defendants being aggrieved with the judgment of the trial court appealed against the same to the lower court in its judgment delivered on 16/2/2005 allowed the Defendants’ appeal. The declaration and orders on damages made by the court were set aside and a verdict dissatisfied with the judgment of the lower court sought for and obtained the leave of the said court on 16/3/2005 to appeal against the same to this Court. The lower court in granting leave to the appellant also struck out the name of the 2nd Respondent – Nna Adamu Gogban as the said court was informed that the party died since the inception of the suit. the Plaintiff/Appellant subsequently filed on 23/3/2005 a Notice of Appeal filed contains seven (7) grounds of appeal. The said grounds without their particulars read thus:-
“GROUND 1
The learned Justices of the High Court sitting on Appeal (sic) erred in law when they held that the traditional history as proffered by the Plaintiff/Appellant herein is tenuous, sketch and deficient to sustain a claim of this nature, that is the claim for declaration of title and further held that the fining of the trial Court on traditional history is perverse and dismissed the case of the Plaintiff/Appellant.
GROUND 2
The learned Justices of the High Court sitting on Appeal (sic) erred in law when they held that the evidence of the PW2 and PW3 is against the interest of the Plaintiff concluded that the oral history of the Plaintiff/Appellant herein is not satisfactory.
GROUND 3
The lower court misdirected itself in law when it held that the trial court in the final part of his Judgment awarded declaration of title to a parcel of land different to (he one testified upon or claimed by stating situate, lying and being at Abugi in Kupa District of Lokoja and the trial court awarded what was not asked for
GROUND 4
The learned Justices of the High Court held in the alternative that assuming traditional history of both parties are plausible but conflict one with the other that the Plaintiff/Appellant herein did not lead evidence of acts of possession in line with the rule in Kojo v. Bonsie (1957) 1 WLR 1223 and dismissed all the other claims of the Plaintiff/Appellant.
GROUND 5
The learned Justices of the High Court sitting on Appeal (sic) erred in law by holding that the Plaintiff/Appellant has failed to prove title to a defined area of land and thereby dismissed the Plaintiff’s case.
GROUND 6
The lower court erred in law when it held that the Judgment of the trial court is perverse and dismissed all the claims and orders made on damages of the Plaintiffs/Appellant’s (sic) case GROUND 7
The Judgment is against the weight of evidence.
The relief sought by the Plaintiff/Appellant is one allowing the appeal and setting aside the judgment of the lower court and restoring that of the trial court.”
The relief which the Appellant seeks from this Court is one setting aside the judgment of the lower court and in its stead restoring that of the trial court.
In compliance with the rules of this Court, parties duly filed and exchanged briefs of argument. Appellant’s brief of argument dated 23/3/2006 and Appellant’s Reply brief dated 16/5/2006 and filed on 28/3/2006 and 18/5/2006 respectively were settled by Jibo Ibrahim Esq. Respondent’s brief of argument dated 3/5/2006 and filed on 4/5/2006 was settled by Funsho Agbanah Esq. The appeal was entertained on 2/11/2009 and learned counsel for the Appellant and Respondent respectively relied on and adopted the briefs of argument they filed on behalf of their clients.
The Issues which the Appellant formulated for the determination of the appeal in his brief of argument are:-
“1. Was the court below not wrong in law when it held that the traditional history as proffered by the Plaintiff/Appellant is tenuous, sketchy, perverse and deficient to sustain a claim of declaration of title and dismissed the case of the Plaintiff/Appellant. (Grounds 1, 6 and 7)
2. Whether the learned Justices of the court below were right to have held in the alternative that the Plaintiff/Appellant did not lead evidence of acts of possession in line with the rule in Kojo v Bonise (1957) 1 WLR 1223, (Ground 4)
3. Was the court below not wrong in law when it held that the Plaintiff/Appellant did not prove title to a defined area of land.
(Ground 5)
4. Whether the learned Justices of the court below were right to have held that the evidence of PW2 and PW3 is against the interest of the Plaintiff to arrive at the conclusion that oral history of the Plaintiff is not satisfactory. (Ground 2)
5. Whether the court below was right to have read the judgment in parts and held that the trial court awarded what was not asked for and dismissed the Plaintiff’s case. (Ground 3)”
Two Issues are formulated for the determination of the appeal in the Respondent’s brief of argument. The Issues read thus:-
“1. Whether the Appellate High Court was not right in setting aside the judgment of the trial Upper Area Court on the ground that the Plaintiff/Appellant herein has not proved his case and substituting it with an order dismissing his claim. (Distilled from Grounds 1, 2, 4, 5, 6 and 7)
2. Whether the court below was not right when it held that the trial court awarded what was not asked for to the plaintiff. (Distilled from Ground 3)”
The appeal will be determined upon the Issues formulated in the Appellant’s brief of argument.
APPELLANT’S ISSUE 1
Dwelling on Issue 1, the Appellant submitted that the lower court was wrong in its finding that the traditional history which he proffered is tenuous, sketchy, perverse and deficient to sustain a claim of declaration of title. The case of Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282 at 284 was cited in aid. The cases of Osafile v. Odi (1994) 2 SCNJ 1 at 15; Alli v. Alesinioye (2000) 2 SCNQR (Part 1) 285 at 288 – 289; and Odofin v. Ayoola (1984) 11 SC 72 at 144 were cited to show what a party relying on traditional history to sustain a claim for declaration of title is required to prove. It is the submission of the Appellant that he led strong and credible evidence in the proof of his root of title and also that he did not leave any gap in respect of the intervening owners through whom he claims. The case of Ohfaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at pages 4 and 17 was cited in aid. The Appellant accused the lower court of not considering the evidence of tradition adduced by the Respondents before holding that his own evidence of tradition was sketchy and asked the question as to which acted on in holding that the traditional evidence which he adduced was sketchy, tenuous and perverse. It is the submission of the Appellant that it is not sine qua non for him to call an independent witness or the head chief in order to sustain his claim for declaration of title. That where a member of the family gives evidence of tradition in proof of title, such evidence may more easily establish title as in the instant case where PW 3 from the Appellant’s land owning family testified. That the evidence of such a witness cannot be regarded as tenuous, sketchy and perverse and the case of Lawani Alli v. Alesinloye (2002) 4 SCNJ 264 at 270 and 291 was cited in aid.
The Appellant accused the lower court of fishing for pitfalls on his side throughout its judgment particularly at pages 147 – 151 The Appellant submitted that there was sufficient evidence to support the findings of the trial court from the evidence which parties adduced before the said court and submitted that the lower court was wrong to have reversed the finding of the trial court on the ground that they are perverse. Dwelling on evidence of acts of possession, the Appellant said that the trial court confronted with two conflicting versions of traditional history of the parties performed its duty in considering on a balance of probability which of the two versions to accept That page 109 of the Record of Appeal shows that the trial court that the Respondents did not prove title to the land in dispute as their traditional evidence was found to be inclined to relate to another parcel of land – Gokpon which is not in dispute. Having highlighted some other pitfalls which the lower court searched for in the evidence which he adduced, the Appellant submitted that the duty on a party is to call relevant evidence in the proof of his case and not to call a particular witness if he can prove his case without such a witness. The Appellant observed that the 2nd Defendant through whom the 1st Defendant claimed Kin Sanmi and Tsanku land did not testify before the trial court; that 3rd Defendant did not testify to rebut the material evidence given by PW1; and at the locus in quo he showed the part of the land which Jiya gave to PW2. He said all these were taken into consideration by the trial court in reaching its conclusion and in declaring him the owner of Sanmi farmland. The Appellant submitted that the lower court which did not see or hear the witnesses and did not visit the locus in quo was wrong in its re-evaluation of the evidence of tradition, acts of ownership and possession adduced by him and the finding of the said court that the judgment of the trial court was perverse. The cases of Tyo Akulaku v. Yongo (2002) 5 NWLR (Pt.759) 135 at 144 – 145 and 161 – 162; and Lion Building Ltd v. Shadipe (1976) 12 SC 135 at 153 and 159 were cited in aid. This Court was urged to set aside the judgment of the lower court and restore that of the trial court on this ground.
APPELLANT’S ISSUE 2
Dwelling on this Issue, the Appellant submitted that the lower court was wrong to have held in the alternative that he did not lead evidence of acts of possession in line with the rule in Kojo v. Bonsie case. In the main the Appellant submitted that the preference by the trial court of the evidence of tradition he adduced over that of the Respondents was assailable He went on to refer to pages of the record where evidence of acts of recent possession was adduced by him. The Appellant submitted that where as in the instant case, the trial court accepted his evidence of tradition as being more probable and straightforward, it was sufficient to discharge the burden of proof imposed on him in respect of his claims and that resorting to other methods of proving ownership would amount to making assurance double sure. He cited the case of Morenikeji v. Adegbosin (2003) 8 NWLR (Pt. 823) 612 at 615, and 661 – 662 amongst others.
APPELLANT’S ISSUES 3
Dwelling on this issue, the Appellant said that his witnesses gave evidence of a defined area measuring 5 miles by 4 miles wide and gave evidence of boundaries with the boundary marks on the four sides as well as the location of the land in dispute. Also, that at the locus in quo, he showed the defined area with the boundaries in the presence of the court, parties, their witnesses and respective counsel. It is the submission of the Appellant that he duly discharged the duty of proving the area and boundaries of the land in dispute and that the identity of the land in dispute was no more in issue as parties knew it. The Appellant cited many cases he considered relevant and amongst them are Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) at 570, 573 and 581; and Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544. The Appellant submitted that the view expressed by the lower court concerning the identity of the land in dispute was irrelevant giving the findings of the trial court to the effect that “the Plaintiff has described the land in dispute with reasonable certainty by giving the size of the land, the features, the boundaries and boundary marks” and that from the visit to the land the identity of the same is well known to the parties. This is particularly so as any surveyor looking at the evidence on record will be able to draw up the plan of the land without going to the site The cases of Olusanmi v. Oshasona (1992) 6 SCNJ 282 at 283 and 289- and Nwabuoku v. Ottih (1961) All NLR 487 were cited in aid.
APPELLANT’S ISSUE 4
Dwelling on this Issue, the Appellant submitted that it was wrong for the lower court to have held that the evidence of PW2 and PW3 is against his interest He said this was contrary to the finding of the trial court that the witnesses gave credible evidence of tradition. The case of Nwaeseh v. Nwaeseh (2000) 3 NWLR (Pt. 649) 391 at 394 – 395 and 401 was cited in support of his submission.
The Respondents responded to all the Appellant’s Issues considered above in his Issue 1. Dwelling on the finding of the lower court that Appellant did not prove title to an identified area of land, the Respondent submitted that it is settled law that in a suit for declaration of title the onus is on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration claimed. And that such a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. It was further submitted by the Respondent that the first duty of a claimant for declaration of title to land is to prove with certainty and precision the area and location of the land to which his claim relates. That the test in this regard, is, whether a surveyor from the evidence furnished can produce an accurate plan of such land. That if the plaintiff fails in this first duty, then his claim must fail. The cases of Mogaji & Ors v. Cadbury Nig, Ltd & Ors (1985) 7 SC (Pt. 1) 59- and Akukaku v. Yongo (2002) 9 SCNQLR 1 – 3, 470 at 472 amongst others were cited in aid. The case of Auta v. Ibe (2003) 7 SCNJ 159 at 168 – 169 was cited on the necessity to prove with definitive certainty the area of land claimed by the plaintiff and the case of Odiche v. Chibogwu (1994) 7- 8 SCNJ (Part II) 317 at page was cited as showing how a plaintiff claiming declaration of title to land in Northern Nigeria should go about proving the area of land claimed with definitive certainty. This is to be done by: (i) stating the boundaries of the area and location of the land he is claiming; (ii) his neighbours and their names on all sides of the boundaries; where some of the boundaries are marked by river, stream or road, their names; and (iii) any other physical features on the land like racks, building, trees, etc, that may assist in its identification. The Respondents having first referred to the claim of the Appellant before the trial court which reads thus – “the plaintiff is the customary owner of a parcel of land situated at Tsanku in Kupa district of Kogi Local Government Area of Kogi State and the land is called sanmi land” and after an extensive review of the evidence on record submitted that the Appellant failed woefully to prove the area of land he claimed with the degree of certainty required by law. It is the further submission of the Respondents that the lower court was right in reversing the judgment of the trial court and dismissing the Appellant’s claims in the circumstances.
Dwelling on the requirement of proof of ownership, the Respondents submitted that the settled position of the law is that a claimant for a declaration of title must succeed on the strength of his case and not on the weakness of the defence. The case of Bankole v. Pelu (1991) 11 SCNJ 108 at 124 amongst others was cited in aid. The case of Idundun v. Okumagba (1976) NMLR 200 at 210 was cited to show the five different ways of establishing title to land. The Respondents said that while the Appellant relied on traditional history and long possession in the proof of his title to the land in dispute; they (i.e. Respondents) relied on traditional history, acts of ownership and long possession in the proof of their title even though they did not file any counter-claim. The Respondent cited the cases of Udeze v. Chidebe (1990) 2 BMLP 30; and Mogaji’s case (supra) on the requirement of a person claiming entitlement to a declaration of title based on traditional evidence to prove the historical origin of his root of title. The cases of Anyawu v. Mbara (1992) 5 NWLR (Pt. 24) 386 at 399 and Echi v. Nnamani (2000) were cited to show what a plaintiff relying on traditional evidence is required to plead and lead evidence upon. Having reviewed the evidence adduced by the Appellant, the Respondents submitted to the effect that the evidence adduced by him ( Appellant) did not meet the standard required by law to establish the method of ownership of the land in dispute he relied on The Respondents said that it was not enough for the Appellant to state that purported predecessors in title controlled the land without stating the acts of control and cited the case of Akanbi v. Salawu (2003) 6 SCNJ 246 at 255 in aid The Respondents submitted that the Appellant did not establish his root of title in the circumstances and that the lower court was right to have held that the Appellant’s evidence of tradition was tenuous and sketchy. It is also the submission of the Respondents that evidence adduced by the Appellant did not establish acts of long possession. The case of Balogun v Akanji (1998) All NLR 188 at 211 – 212 was cited to show what a claim based on long possession connotes.
Dwelling on the submission that the 2nd and 3rd Defendants did not testify before the trial court, the Respondents submitted that the submission overlooks the fact that the Respondents did not file any claim against the appellant by way of a cross action and that it is for the Appellant to prove his own case. It is the further submission of the Respondents that in a civil matter there is no law that requires a party to appear in court to testify in his own behalf if he can do so through witnesses and documents and the case of Cross River State Newspapers Corporation v. Oni (1995) 1 SCNJ 218 at 239 was cited in aid. The Respondents said that they adduced evidence in rebuttal of the Appellant’s case through the witnesses they called before the trial court. The Respondents urged the Court to uphold the decision of the lower court that the Appellant did not establish his title to the land in dispute.
The Appellant filed a Reply brief. The brief in essence was a rehash of the arguments in the Appellant’s brief of argument in the bid to extend the scope of the arguments in his brief of argument for the purpose of responding to the arguments of the Respondents. The Respondents did not introduce any new issue or point of law in their brief of argument. The law is settled as to when it is necessary to file a Reply brief and it is where an appellant has introduced a new issue or point of law in his brief of argument. A reply brief is not to afford the appellant another bite at the cherry. It is also not proper to use a Reply brief to extend the scope of argument in the appellant’s brief. See the case of OSUJI V. EKEOCHA (2009) 39 NSCQR 532. Accordingly the Reply brief of the Appellant will be discountenanced.
The settled position of the law as it relates to proof of the identity of the land claimed, by a plaintiff in an action for declaration of title and consequence of failing to do this is clearly stated in the case of BILA AUTA vs CHIEF WILLY IBE (2003) 7 S.C. 129 AT PAGE 136 where the supreme Court stated thus:-
“Now, in an action for declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which a declaration can be attached. See Odesanya v. Ewedimi (1962) 1 All NLR 320. The first duty of the plaintiff who comes to court to claim a declaration of title is to establish to the court clearly the area to which his claim relates.
The summary of the facts relied upon by the Appellant in support of the reliefs he claimed in the instant case as set out at page 1A of the Records read thus: –
The plaintiff is the customary owner of a large parcel of land situated at Tsanku in Kupa District of Kogi Local Government Area of Kogi State and the land is called Sanmi Land.
The plaintiff inherited the said Sanmi Land from his parents and has been in peaceful occupation until recently when the first defendant trespassed into Sanmi Land and when (sic) challenged the claimed (sic) that the land is his own as he got the land from the second defendant who is a native of Gogban Village. The third defendant who is a relation of the 1st defendant begged to farm in the part of the land from the plaintiffs father about 10-years ago and paid tributes but immediately the plaintiffs father died, he refused to pay tributes and remained unlawfully on the land.
The first defendant trespassed into Sanmi Land sometimes in 1998 without the prior permission of the plaintiff and cultivated Rice and cassava therein and when challenged by the plaintiff, the 1st defendant organized thugs to beat the plaintiff.
The defendants by the unlawful entry on the Sanmi farmland have deprived the plaintiff of the use of his land and the plaintiff has suffered damage.”
Dwelling on the land in dispute in his evidence the Appellant said; –
“The land is called “KIN SAMI”. The land is owned by Muhammed Jiya. Muhammed Jiya came to own the land because he inherited the land from his grandfathers. My grandfather named Adansa first settled on the land. He first settled there about 300 years ago (three hundred years). Before Adansa first settled on the land, he was a hunter. Adansa is dead. After Adansa, Jinzaye took over the control of the land. Jinzaye is dead. After Jinzaye, Ndako Umaru took control of the land. Ndako Umaru is dead. After Ndako Umaru, Ramatu followed by taking control of the land. Ramatu is a woman. Ramatu is dead. After the death of Ramatu, Jiya took over the control of the land from her. Jiya is dead. After the death of Jiya, I Muhammadu Jiya took over the control of the land from him. Ramatu took over control of the land as a result of non availability of men. I have being (sic) in control of the land for about 13-years now. Kin Sami is about 5-miles long. It is about 4-miles wide. We have on the Kin Sami: forest, trees, (palm trees, locust beans, share butter, mango trees). Fadama land where we farm rice, upland where we farm guinea corn, maize and cassava and ponds where we fish.”
The Appellant having said that he knows the boundaries of the land, stated that Apogi (which is a town) is its eastern boundary; Gokpon (protector) marks the boundary from the eastern part. Gokpon village (which is now extinct) is the western boundary of the land. The road leading from Agini to Awum, marks the boundary on the western part. The land shares boundary with Agini Agukpo on the northern part and it is the road from Agini Agukpo to Abugi that marks the boundary. The land share boundary with Agini Apiakuru on the southern part and a stream called Akpakpa marks the southern boundary. According to the Appellant, Tsanku village is at the centre of Sami land. Tsanku village is however no longer in existence. Dwelling on Kin Sami the Appellant said that there are seven villages there namely: Agini Agukpo to Agini Apiakuru, Lagan, Bozhi, Kpagun, Kapu and Akpogi. That people live in the seven villages and that each village has its own chief independent of one another. He stated the villages on Kin Sami that are no longer in existence to be Guonkpon, Tsanku, and Duku. Under cross-examination the Appellant said that the seven existing and three non-existing villages he mentioned are not within the 5 by 4 miles land he described but that the land he is claiming is within the 5 by 4 area and that Tsanku is the only village that has ever existed on the land he is claiming. Still under cross-examination the Appellant said that the chief of Kin Sami died last year (i.e. year 2000) and that it is the turn of Kapu to rule. That the chief of Lagun was the chief of Kin Sami as at last year (i.e. year 2000) and that he is the “Suasu of Kin Sami”. He said that he lives at Agini Agukpo and that Agini Agukpo and Tsanku are within Sami land. Stating that he knows the area that constitutes Kin Sami, he stated them to be Agini-Apiakuru, Langa, Kakpo and Akpogi. He said that each of the seven villages has its separate land and boundary and that nobody can come and claim the ownership of the whole of Kin Sami.
Suffice it to say that the Respondents adduced evidence that controverted that adduced by the Appellant in respect of the identity of the land in dispute. The lower court dealt with the question of the identity of the land claimed by the Appellant at pages 165 – 166 of the Record. The lower court said thus concerning the trial court: –
The Court in its judgment gave the Respondent declaration of title to Sanmi farmland measuring 5 by 4 mile, bounded by Apogi on the east Gokpon on the west, Agini Agupo on the North and Agini Apiakuru on the south lying and being at Abugi in Kupa District at Lokoja.”
The lower court having said that the trial court awarded the Appellant declaration to a parcel of land different from the one he testified about or claimed, further said at page 166 of the Record that: –
Tsanku – whether within or boundary village to Kin Sanmi And whether the land claimed was the whole of Kin Sanmi or part, especially when one considers the evidence of PW2 referred to above. Since Plaintiff/Respondent cannot by the evidence of his witness claim the whole of Kin Sanmi, which precise land did he claim? It cannot be glossed over as the trial court did. It left undone that which it should do.
Although the lower court downplayed this, but we believe that it was done to the detriment of the case.
The long and short of all we are saying is that it is our considered view that the Plaintiff/Respondent has failed to prove title to a defined area of land.”
It is no doubt clear from the facts relied upon by the Appellant in support of his reliefs as hereinbefore re-produced that the land in respect of which he seeks for declaration of title is “a large parcel of land situated at Tsanku in Kupa District of Kogi Local Government Area of Kogi State and known as Sanmi land”. Given the evidence of the Appellant which I have also hereinbefore re-produced and also summarized, I am at a total loss to appreciate how it can be said that the Appellant adduced any evidence in the identification of the land in respect of which he seeks for a declaration of title with any certainty. In his evidence he called the land “Kin Sami” and that it is about 5,miles long and 4 miles wide. He mentioned the seven villages that are within Kin Sami as well as the three villages that were within it but now extinct. Tsanku is one of the three villages. Under cross-examination he said that the seven existing villages and the three extinct villages are not within the 5 by 4 miles area he said Kin Sami measures but that Tsanku is the only village that has ever existed on the land he is claiming. Also in another vein he said under cross-examination that nobody can claim ownership of the whole of Kin Sami.
The Appellant has submitted that the identity of the land in dispute is well known to the parties and that any surveyor looking at the evidence on record will be able to draw up a plan of the land without going to the site.
This submission in my view overlooks the fact that parties having regard to the evidence on record as not ad idem on the location of the land in dispute having regard to the location and boundaries. This clearly put the identity of the land in dispute in issue and casts on the Appellant the primary duty or burden of proving clearly and unequivocally the precise area to which his claim for declaration of title relates. See OGUN V. AKINYELU (2005) All FWLR (Pt.243) 601 at 622.
Cases have been cited that show that for the description of a parcel of land to be said to have been established with certainty, a surveyor armed with the said description should be able to draw the plan of the said parcel of land. I do not see how this can be done upon the evidence adduced by the Appellant himself, talk less taking the said evidence in conjunction with that of his witnesses in relation to the land the Appellant claims title to. Given the evidence adduced by the Appellant as highlighted above, and the consideration given to the question of the identity of the land over which the Appellant seeks for declaration of title as undertaken by the lower court in the judgment, I do not see how it can be properly said that the lower court was wrong in its conclusion that the Appellant did not prove title to a defined area of land. Failure of the Appellant in this regard without more must result in the failure of his claim for declaration of title having regard to the cases hereinbefore cited. See also GBADAMOSI V. DAIRO (2007) AH FWLR (Pt.357) 812 at 842.
The lower court in its judgment appreciated the fact that the Appellant and the Respondents respectively relied on traditional history in the proof of their title to the land in dispute. Having undertaken a review of the evidence adduced by the Appellant vis-a-vis the case of the Respondents the lower court concluded that the evidence of tradition adduced by the Appellant was tenuous sketchy and deficient to sustain his claim.
Now, what does the law expect of a plaintiff who relies on traditional evidence to sustain his claim for declaration of title. The law is settled that for traditional history or evidence of tradition to sustain a claim for declaration of title, the plaintiff must adduce evidence conclusively establishing: –
1. who founded the land in dispute;
2. how the person came to found the land; and the particulars of the intervening owners through whom the plaintiff claims.
See ELEGUSHI V. OSENI (2005) All FWLR (Pt. 2821) 1837: and OYADARE V. KEJI (2005) All FWLR (Pt. 247) 1583.
The lower court dwelled on the question as to whether or not the Appellant proved his claim to the land in dispute by traditional evidence upon which he rested his claim from pages 162 – 164 of the record and concluded that the evidence of tradition adduced by the Appellant is tenuous, sketchy and deficient to sustain a claim such as that of the Appellant. In coming to this conclusion, the lower in the consideration of the evidence adduced by the Appellant said that the evidence of PW2 and PW3 under cross-examination was very revealing and should have agitated the mind of the trial court as the evidence called into question the credibility of the claim of the Appellant.
Indeed the lower court expressed the view that the evidence of the said witnesses was against the interest of the Appellant and that the trial court ought to have considered this.
The opening portion of the evidence of the Appellant as contained at pages 54 – 55 of the record has been re-produced above. It is in my view glaring from the evidence that was re-produced that while the Appellant stated who founded the land he claims (i.e. his grandfather named Adansa) and particulars of those he claimed to be the intervening owners, he however woefully failed to give any evidence as to how Adansa the founder of the land came to found it. None of his witnesses equally testified about this From the evdence of the Appellant it would appear that Adansa just came from nowhere to found the land in dispute. Evidence of tradition does not believe that one can come from nowhere. I have also perused the evidence of PW2 and PW3 at pages 64 – 66 and 66 – 69 respectively. Under cross-examination PW2 testified amongst others to the effect that the Appellant’s father is Sule and that the Appellant’s father had his land at Agini Agukpo. That it is the land at Agini Agukpo that the Appellant can inherit. In the same vein PW3 under cross-examination said that the Appellant’s father is Sulayman and that the Appellant is the head of the Sulayman family.
It is to be noted that in the list of intervening owners of the land in dispute as given by the Appellant in his evidence he clearly never mentioned Sulayman as one of them. Surely the evidence elicited from PWs 2 and 3 under cross-examination is clearly against the interest of the Appellant. The lower court in my considered view was eminently correct when it held that the evidence of these witnesses was against the interest of the Appellant as the same went to show that the land that could have devolved on him by inheritance is different from the land that he claims.
The law as it relates to a claim for declaration of title is that the claimant must succeed on the strength of his case and not on the weakness of the defence. This is not to say that the standard of proof in a claim for declaration of title is higher than that required in civil cases generally. The only difference rests on the fact that the burden of proof is on a plaintiff who is claiming title, and never shifts to the defendant throughout the trial. The difference therefore lies not in the standard of proof, but on the burden of proof. See ADEWUYI V. ODUKWE (2005) All FWLR (Pt. 278) 1100 at 1113. It is my considered view that from the totality of the evidence adduced by the Appellant the traditional history he relied upon in the proof of his title to the land in dispute was inconclusive and definitely deficient to sustain his claim for declaration of title An inconclusive and deficient evidence of tradition cannot be plausible and credible and definitely cannot sustain a claim for declaration of title See OGUN V. AKINYELU (SUPRA) at 623. This being the position I am unable to hold as urged by the Appellant that the lower court was wrong in holding that the Appellant’s evidence of tradition was tenuous, sketchy and deficient to sustain the claim for declaration of title to the land in dispute based on traditional history. Indeed, I do not see what ameliorating effect the calling of independent witnesses as observed by the lower court would have had on the evidence adduced by the Appellant given the particular deficiency in the evidence of tradition he adduced as it concerns how the land in dispute came to be founded by Adansa and the lack of evidence as to the manner in which Adansa and the intervening owners stated by the Appellant exercised control over the said land. In conclusion I find the lower court to be eminently right when it held that the traditional history relied on by the Appellant in the proof of his title to the land in dispute is deficient to sustain the same.
What the lower court said in its judgment in the alternative, is “assuming the tradition history of both parties are plausible but conflict one with the other, the Respondent (who is now the Appellant) who was the Plaintiff at the lower court will be required to lead evidence of acts of recent possession in line with the rule in Kojo v. Bonsie (1957) 1 WLR 1223, in order to tilt the imaginary scale, (see Mogaji v. Odofin (1978) 4 SC 91) in his favour.”
In OYADARE V. KEJI (supra) at pages 1598 – 1599 it was held that when the basic foundation of a claim has been rejected, that is traditional evidence; there is nothing on which to found acts of possession. In other words that when the pleaded title to land fails or has not been proved, it will not be necessary to consider acts of owner and possession which are no longer acts of possession but acts of trespass. The lower court having found that the Appellant did not establish his claim to the land in dispute by the evidence of tradition he relied upon just engaged on a speculative venture by looking for acts of possession that could tilt the imaginary scale in favour of the Appellant. The rule in Kojo v. Bonsie cannot be properly invoked given the definitive finding of the lower court that the evidence of tradition adduced by the Appellant was deficient to sustain his claim.
In conclusion and from all that has been said above, Appellant’s Issues 1, 2, 3 and 4 are all resolved against him.
APPELLANT’S ISSUE 5
Dwelling on this Issue, the Appellant in the main accused the lower court of having not read the judgment of the lower court as a whole. That the phrase “situate lying and being at Abugi in Kupa District of Lokoja” amounted to the lower court reading the trial court’s judgment in parts. The Appellant submitted that parties reading the judgment of the trial court as a whole are aware of the substance of the same and the area referred to in the said judgment. This Court was urged to restore the judgment of the trial court including all the awards made therein. The cases of Akulau V. Yongo (supra) and Efi v. Enyiful 14 WACA were cited in aid of the submissions.
Responding to the Issue under their Issue 2 the Respondents in the main submitted that the judgment entered in favour of the Appellant by the trial court was glaringly in conflict with the unchallenged evidence in respect of the land in dispute before the said court. The Respondents made the point that the land in respect of which the Appellant sued as stated in his claims is Sanmi farmland at Tsanku in Kupa District; that at the hearing before the trial court, he and his witnesses adduced evidence in respect of land at Kin Sanmi; and that the trial court ended up giving him declaration in respect of land at Abugi in Kupa District of Lokoja.
I have in this judgment earlier re-produced the claims of the Appellant.
The Appellant clearly claimed for declaration in respect of a large parcel of land situate at Tsanku in Kupa District of Kogi Local Government Area Kogi State and which land is called Sanmi land. Throughout the length and breadth of the proceedings in this case as recorded, there is nowhere evidence was led to show or suggesting that Tsanku and Abugi are one and the same.
Courts whether native or customary or of record are enjoined to act and decide cases upon evidence before them. There is no explanation as to how land claimed by the Appellant and which by his own claims before the trial court is situate at Tsanku in Kupa District metamorphosed to land at Abugi in Kupa District. No manner how liberally one construes the judgment of the trial court, it cannot be explained from the evidence on record how the said court came about awarding the Appellant declaration of title over land at a location which the Appellant never said his land was in his claims and which he never caused his claims to be amended to reflect even if he labouring under a mistake as to the proper location of the said land at the time he instituted his case. I do not see any disjointed reading of the judgment of the trial court by the lower court as the Appellant would appear to be arguing.
The situation in this case reflects a clear appreciation of the judgment of the trial court by the lower court and the proper application of the law to the relief not sought for by the Appellant but granted him. The claim granted the Appellant given all that I have said was properly described by the lower court as one not asked for. The dismissal of the case of the Appellant by the lower court cannot be faulted.
In conclusion Appellant’s Issue 5 is also resolved against him.
In the final analysis, this appeal is unmeritorious as all the Issues formulated by the Appellant for its determination have been resolved against him. The appeal is accordingly dismissed. The judgment of the lower court delivered on 16/2/2005 is affirmed.
Costs in the sum of N25,000.00 is awarded against the Appellant and in favour of the Respondents.
UWANI MUSA ABBA AJI, J.C.A: I have had a preview of the judgment just delivered by my learned brother A. O. LOKULOSODIPE, JCA, and I entirely agree with the reasoning and conclusions reached therein. I adopt same as mine.
The appeal lacks merit and it is also dismissed by me.
I endorsed consequential order as to costs.
JIMI OLUKAYODE BADA. J.C.A: I had the opportunity of reading before now, the Judgment just delivered by my Learned brother AYOBODE OLUJIMI LOKULO-SODIPE JCA.
His Lordship has dealt with all the issues arising for determination in this appeal in a very lucid form. I agree with the reasons contained in the Judgment as well as the conclusion that the appeal is unmeritorious and ought to be dismissed.
I adopt same as mine. In the circumstance, I too dismiss the appeal.
I abide by the consequential orders including the order as to costs.
Appearances
Jibo IbrahimFor Appellant
AND
F. AgbanahFor Respondent
