MATHIAS OGAR OKOLI v. OGAR OMAGU
(2014)LCN/6919(CA)
RATIO
LAND LAW: A CLAIM FOR DECLARATION OF TITLE TO LAND WHERE THE IDENTITY OF LAND IS IN DISPUTE BETWEEN THE PARTIES
As can easily be seen from the issue 1 and the submissions by the learned counsel for the Appellant; the complaint is that the High Court had held that the land in dispute was not identified with certainty but still went ahead to declare title in the Respondent. The law is now common knowledge, that in a claim for declaration of title to land, where the identity of the piece of land claimed was in dispute between the parties, the claimant has the legal duty to prove the identity and boundaries of such land precisely and with certainty, otherwise his claim would fail. In the case of Gbadamosi v Dairo (2007) 3 NWLR (1021) 282, (07) 1 – 2 SC (Pt. II) 157, it was held by the Supreme Court that:- “The issue of identity of the land in an action for declaration of title to land is very fundamental. The onus is on the plaintiff seeking the declaration to established the precise identity of the land he is seeking the declaration. If must be emphasized that in an action where the plaintiff claims a declaration of title to land and fails to give the exact extent of the land he is claiming, his action should be dismissed.” See also Ogedengbe v Balogun (2007) 9 NWLR (1039) 380, (09) 3 SC (Pt. II) 71, Odinze v Nwosu (2007) 5 – 6, SC 40: Nwogo v Njoku (1990) 3 NWLR (140) 570.
In the above premises of the law, where in a claim for declaration of title to land, the identity of the land claimed is in issue and dispute, and it is not proved precisely and with certainty, no order for declaration of title to such land can be made in vacuum without setting out the specific and definite area in respect of which it would apply. See Baruwa v Ogunsola 4 WACA, 159: Nnuma v Ebuzoeme (2006) 9 NWLR (985) 212: Abdullahi v Hedima (2010) LPELR, 3356. It would therefore be clearly wrong in law, for a trial court to make finding that the identity of a piece of claimed was not prove precisely and with any certainty on the evidence adduced before it and thereafter, make a declaration of title in respect of the same piece of land, the identity of which was disputed and not proved as required by law. Per MOHAMMED LAWAL GARBA, J.C.A.
CONDITIONS THAT MUST ESTABLISHED BY THE PARTY RELYING ON TRADITIONAL HISTORY IN A CLAIM FOR DECLARATION OF TITLE TO LAND
The law is also firmly settled that a party relying on evidence of traditional history in a claim for declaration of title to land, must pleads his root of title and show who his ancestors were and how they came to own and possess the land and eventually pass it to him. He is also required to establish by evidence, how the person or family through who he traces and claims his title, also came to have title vested in him or it. Such a party is expected to narrate, in his pleadings and evidence, the genealogical tree from the original owner, the ancestor in generations appurtenant to him, down the line to him. Put another way, such a party must plead and prove the following:-
a) Who founded the land
b) In what manner the land was founded; setting out the circumstances,
c) The successive persons to who the land devolved from the founder/s, through on unbroken chain of succession, down to him, such that there is no gab in the line of succession which cannot be explained.
See Odi v Iyala (2004) 8 NWLR (875) 283: Eno v Ani (2004) 3 NWLR (861) 610: Irawo v Adedokun (2005) 1 NWLR (906) 199: Okoko v. Dakolo (2006) 14 NWLR (1000) 401; Ibikunle v Lawanson (2007) 3 NWLR (1022) 580; Adole v Gwor (2008) 5 MJSC, 38; Durikpor v. Chioma (2010) 9 NWLR (1200) 482; Iseogbekun v Adelakun (2012) 3-4 MJSC,46.
In law, it is not sufficient for a party who relies on traditional history for proof of title to land to merely plead that he, and before him, his predecessors in title, i.e. his ancestors or forefathers, had owned and possessed the land from time immemorial or beyond human memory. See Ezeokonkwo v Okeke (2011) NWLR (777) 1; Ezinwa v. Agu (2004) 3 NWLR (861) 431: Adebo v Onusola (2005) 2 NWLR (909) 149.
Furthermore, it was held in the case of Oyadare v Keji (2005) 7 NWLR (925) 571, by the Supreme Court that “where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn round to rely on acts of ownership and possession to prove his title to the land. As a matter of course, there would be nothing on which to found acts of ownership. In such a case, the court is obliged to dismiss the claimant’s claim. Similarly, where a defendant to a claim for title to land fails to prove his root of title by traditional evidence he pleaded, his defence to the claim, would fail.” See Oyadare v Keji (2005) 7 NWLR (925) 571: Ohien v Akabexe (1992) 2 NWLR (221) 1. Per MOHAMMED LAWAL GARBA, J.C.A.
