MR. AUGUSTINE ELLAH V. MRS HELEN AGOM
(2011)LCN/5054(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 29th day of June, 2011
CA/C/206/2009
RATIO
LAND LAW: ON WHOM LIES THE ONUS TO PROVE TITLE TO LAND IN A DECLARATION FOR TITLE
Thus the respondent who sued asking for declaration of title bore the burden of establishing their title and in that process needed to lead evidence to establish the identity of the land in dispute. The apex court in ODUNZE v. NWOSU (2007) 13 NWLR (pt 1050) 1 at 35 states as follows: “As no plan of the land in dispute have been tendered by both sides in this case, the obvious way out in this case is to find out whether the plaintiff’s have any oral description of the land in dispute adduced enough material to enable a surveyor readily produce a plan of the said land with its boundaries clearly defined. In this regard if a (sic) may repeat, I have perused the plaintiff’s evidence including their witnesses and the claim filed as pen the record. The burden in this regard is on the respondent’s (plaintiffs). There are no materials to assist a surveyor to produce such a plan; not even from the finding of the trial court of the focus. Strangely enough the trial court could not be shown the Nwite shrine, the fulcrum of the respondents’ (plaintiffs’) case. Thus making nonsense of the claim of Nwite shrine as the exact spot where the oath of 1973 was administered and Nwite shrine as a positive boundary feature. What I have endeavoured to show above is that the plaintiffs on whom lies the onus in this regard, have not testified as to the identity and boundaries of the fond in dispute with that degree of certainty to enable a surveyor to produce a plan of it. There (sic) case must collapse on this ground”. PER. JA’AFARU MIKA’ILU, J.C.A.
Before Their Lordships
KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILUJustice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
Between
MR. AUGUSTINE ELLAHAppellant(s)
AND
MRS HELEN AGOMRespondent(s)
JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is on appeal against the judgment of Micheal Edem, J, sitting in Ogoja High court in three consolidated suits No. HJ/17/2003; HJ/18/2003 and HJ/20/2003 delivered on the 4th day of February, 2009. The plaintiff claimed against the defendants each in representative capacities amongst others title to the entire land with four bedrooms compound known and called UKO UTOGOR in accordance with the Nkim custom. Judgment was entered for the plaintiff for title, N1,000.00 damages for trespass against the 3rd defendant in suit No HJ/18/2003 which culminated into this present appeal.
Thus, the plaintiff’s (respondent’s) sued in a representative capacity and her case is that their late father in his life time had two compounds No. 9 Ntol Mgbeje Street, Igoli-Ogojo, where he lived with his wives and children and a large expanse of land with a four room house where he collected rents of Ushi-Utamte called “UKO UTOGOR’S COMPOUND”. When the 1st defendant’s husband died, the plaintiff’s late father brought her to come and stay with him of No. 9, Ntol Mgbeje Street Igoh-Ogoja.
The plaintiff’s father later asked the 1st defendant to relocate and live in his compound of Ushi-Utamate, Igoh-Ogoja and occupy two rooms out of the four rooms while the plaintiff’s father continued collecting rents in the other two rooms. On the death of the plaintiff’s father, it was unanimously agreed that the 1st defendant should continue to collect rents for the remaining two rooms for her upkeeps.
In September, 2002 the 1st defendant started putting up a six room concrete building on the land the plaintiff claims to belong to their late father and their inheritance by Nkim custom and law without consent or permission.
Upon enquiry by the plaintiff on the action of the defendant, the 1st defendant claimed that the property in question was hers built for her by one Ugbut Alada and the land given to herby one Akpotu Igbaji.
The appellant case is that a portion of the land in question was leased to him by the 1st defendant Madam Ushuma Utogor on the 20th April, 2001 and that he took possession of the vacant land sold to him by the 1st defendant without any disturbances or any notice of any existing person in possession or sign of someone being in possession. He claimed nothing was destroyed as alleged by the Respondent, except for a few wild palms which grow naturally.
The appellant has framed the following issues for determination:-
1. Whether the learned Judge made a correct approach to the evidence led by the parties by granting a declaration of title to land in favour of the respondent when the identity of the land is unknown. (Grounds 1 & 4).
2. Whether the learned trial Judge properly directed himself as to the burden of proof having regard to the nature of the issues placed before him, in particular, evidence of tradition and acts of possession canvassed by the defendants in their pleadings and evidence. (Grounds 3 & 5).
On the other hand the respondent has adopted the same issues for determination of this appeal.
Thus, the first issue is whether the trial judge made a correct approach to the evidence lead by the parties by granting a declaration of title to the land in favour of the respondent when the identity of the land is unknown.
Here the contention of the appellant is that for the respondent to succeed in a claim of title to land, she must establish with certainty, the identity of the land she claims. That this is done by calling as witnesses those with whom the respondent shares common boundaries as well as witnesses to trace the boundary marks along the boundary of the land in dispute, in addition to tracing her root of title to the said disputed land. Where the respondent fails to do so her action must fail, particularly as there would be no land to which the declared title could relate or be attached to with any degree of certainty.
The appellant has maintained that the respondent had abysmally failed to establish with certainty the identity of the land in dispute. The appellant has reiterated that it is trite law that must first satisfy itself of the certainty of the land in dispute and its boundaries. That, in this case, the respondent could not discharge that burden placed on her.
Thus the respondent who sued asking for declaration of title bore the burden of establishing their title and in that process needed to lead evidence to establish the identity of the land in dispute. The apex court in ODUNZE v. NWOSU (2007) 13 NWLR (pt 1050) 1 at 35 states as follows:
“As no plan of the land in dispute have been tendered by both sides in this case, the obvious way out in this case is to find out whether the plaintiff’s have any oral description of the land in dispute adduced enough material to enable a surveyor readily produce a plan of the said land with its boundaries clearly defined. In this regard if a (sic) may repeat, I have perused the plaintiff’s evidence including their witnesses and the claim filed as pen the record. The burden in this regard is on the respondent’s (plaintiffs). There are no materials to assist a surveyor to produce such a plan; not even from the finding of the trial court of the focus. Strangely enough the trial court could not be shown the Nwite shrine, the fulcrum of the respondents’ (plaintiffs’) case.
Thus making nonsense of the claim of Nwite shrine as the exact spot where the oath of 1973 was administered and Nwite shrine as a positive boundary feature. What I have endeavoured to show above is that the plaintiffs on whom lies the onus in this regard, have not testified as to the identity and boundaries of the fond in dispute with that degree of certainty to enable a surveyor to produce a plan of it. There (sic) case must collapse on this ground”.
The appellants’ counsel has maintained that in this case the onus on the respondent (plaintiff) is to show by evidence that the identity and boundaries of the land in dispute are certain. That this has to precede any attempt of delving into other issues in proving the respondent’s (plaintiff’s) entitlement/ownership of the land in dispute. So in the case of UDEZE V. CHIDEBE (1990) 1 NWLR (pt. 124) 141: 159 The Supreme court held as follows:-
“It has of course been stated in a number of decided cases beginning from BARUWA V. OGUNSOLA (1938) 4 WACA 159: that the first duty of a person who comes to court for a declaration of title is to prove the area over which he claims with certainty…”
Thus, the appellant counsel has contended that where the respondent (plaintiff) fails to prove the boundaries of the land she is claiming as in the instant case, she has failed by that omission to prove her case and the only and proper order that the court should make in such circumstances is usually one of dismissal of the claim.
Refers to OGEDENGBE v. BALOGUN (2007) 9 NWLR (pt 1039) 380, 393. That this is made more apparent when the name and identity of the land is being disputed. The appellant in their paragraphs 8 and 9 of the statement of defence denied the existence of any land called UKO UTOGOR COMPOUND. Further more the Respondent’s claim that her father acquired land of Ushi-Utambe was vehemently denied.
The appellants counsel avers that the reliefs granted by the lower court were perverse and should be set aside. That more so, the evidence of P.W 1 which was heavily relied on by the trial court in arriving of the conclusion goes to no issue as it amounts to hearsay evidence. He has drawn the attention of this court to the statement of P.W1 under cross-examination which is as follows:-
“I was not in the delegation. I do not know the quantum of land allocated to the plaintiff’s father by Ukamusha Community”.
He has maintained that from the evidence above, the P.W1 having not been part of the delegation was only relating what he was told and seeks to establish the truth of what is contained in the statement.
The appellant’s contention here is that where a statement made by a witness seeks to establish the truth of the content of the statement, the evidence of the statement made by the witness will be hearsay and inadmissible. Refer to AWUSE V. ODILI (2005) 16 NWLR (pt 952) 416; 447. The appellant counsel has further submitted that where hearsay evidence is inadmissible, it need not be controverted before it is expunged from the record of the court relying on BUHARI V. OBASANJO (2005) 2 NWLR (pt 910) 241; 309.
The appellants’ counsel urges this court to find and hold that the declaration of title in favour of the respondent (plaintiff) by the learned trial judge without first satisfying himself that the identity and boundaries of the land are certain has no justification in law.
Appellant counsel has reiterated that the trial court has suo muto shifted the heavy burden placed on the plaintiff to prove her case to the defendant when in fact the plaintiff has not placed before the court any convincing evidence warranting the onus to shift to the defendant. He refers this court to the case of GBADAMOSI v. DARIO (2007) 3 NWLR (pt 1021) 282; 287.
The appellant counsel maintained that the trial court has suo muto shifted the heavy burden placed on the plaintiff to prove her case to the defendant when in fact the plaintiff has not placed before the court any convincing evidence warranting the onus to shift to the defendant. Thus the law on this has been made clear in YUSUF V. ADEGOKE (2007) 11 NWLR (pt 1045) 332; 338; ODUNZE v. NWOSU (supra). He had added that this position also applies to the castigation of the evidence of DW 3 by the trial court in the following words:-
“Nothing could have ended in a more ceremoniously sad note than that piece of evidence. Sad because he has not left the case of the defence better than he met it, sad because I have seen no history in his evidence. Overwhelmingly sad because he had offered no meaningful traditional evidence to prove the title of the 1st defendant”.
He urges this court to find and hold that the Respondent is duty bound to prove her case and not to rely on the weakness of the defence and the trial court ought not to rely on the weakness of the case of the defence to give judgment to the respondent who has failed to prove her case.
On the part of the respondent and with regard to the first issue, it was contended by the learned counsel for the respondent, that there are exceptions to the general principle which states, that a plaintiff in an action for declaration of title to land, must establish the identity of the land with certainty. It was his argument that the instant case falls within the recognized exceptions. This is more so, according to the learned respondent’s counsel, because “the parties are ad idem as to the identity of the land”. Hence, issues were not joined on the identity of the land. It was added, that both parties admit knowledge of the land and their boundary neighbours. Reference was made by the learned respondent’s counsel to page 121 of the record of appeal with reliance being placed on OGBU V. WOKOMA (2005) 7 SCNJ 299 AT 302. Additionally, that in ADELUSOLA V. AKINDE (2004) 5 SCNJ 235, the Supreme Court held that identity of land in declaration of title matters comes to issue only when a defendant raises it in his defence.
On the second issue, the learned counsel for the respondent reiterated the established position of the law that a party must succeed on the strength of his own case without necessarily having to rely on the weakness of the case of the other party. He cited a plethora of cases on the point being made in this regard.
It was further argued by the learned counsel for the respondent, that the respondent led evidence of a concrete nature which remained unchallenged by the appellant. Hence, it was contended that the respondent adduced overwhelming evidence in proof of the relief which she sought for declaration of title. We were urged in conclusion to dismiss the appeal.
Having duly perused the record of appeal in this matter and having gone over the arguments in the briefs of the parties, I am of the firm view point that this appeal lacks merit and should be dismissed for the following reasons amongst others;
1. There was cogent and credible evidence adduced by the respondent to warrant judgment being entered in her favour.
2. The respondent who is duty bound to prove her case and not to rely on the weakness of the defence duly discharged the onus of proof placed on her.
3. The extent and identity of the land are known to both the Respondent and the Appellant.
Thus, in the final conclusion, I hold that this appeal is devoid of merit and I accordingly dismiss it. The judgment of the lower court is hereby affirmed.
I make no order as to costs.
KUMAI BAYANG AKAAHS, J.C.A.: This appeal is from the judgment in suit Nos. HJ/17/2003, HJ/18/2003 and HJ/20/2003 which were consolidated. The present appeal is from the judgment in suit No. HJ/18/2003. On 24th March, 2011 judgment in Appeal No. CA/C/207/2009 was delivered in respect of the consolidated cases No. HJ/17/2003 and HJ/20/2003. The appeal was dismissed and the judgment of the lower court delivered by Edem J. was affirmed. In the said appeal. I was of the view that the land in dispute was known by the parties and its identity was not put in issue.
The appellant in this appeal was the 3rd defendant in the said Suit HJ/18/2003 wherein he claimed that the land in dispute was sold to him by Madam Ushuma Utogor (deceased), a paternal aunt of the Respondent. She had been brought to live in the disputed property by the Respondent’s father after she lost her husband. She was substituted by her son Joseph Ayim who lost in appeal No. CA/C/207/2010. Madam Ushuma Utogor had no land to sell and so the appellant bought nothing and the principle of ‘Nemo dat quod non habet’ applied to any transaction between Madam Ushuma Utogor and the appellant.
The appeal lacks merit and it is accordingly dismissed.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, Ja’afaru, Mika’ilu JCA, just delivered. I am in full agreement with the conclusion that the appeal is devoid of both merit and substance. I also dismiss the appeal and make no order regarding costs.
Appearances
WILLIAM AGBOR, ESQ,For Appellant
AND
G. I. UGAN, ESQ.For Respondent
