MRS MULIKATU ERINFOLAMI V. PIUS OSO
(2011)LCN/4991(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of December, 2011
CA/EK/31/2010
RATIO
DECLARATION OF TITLE TO LAND: ON WHOM RESTS THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND
It is trite that he who asserts must prove and similarly he who seeks title to land must prove that title and must discharge same. This burden does not shift in any way or form to the defendant, it is like the constant theory of the sun rising from the east and setting in the west. It is only after the plaintiff has given evidence of title to the land that the defendant leads contrary evidence to expunge the plaintiffs evidence. In a claim for declaration of title to land, the onus is on the plaintiff to prove title to a defined area. See ODESANYA V EWEDEMI (1962) 1 All NLR 320. The erudite jurist Mukhtar JSC held in NWABUOKU V ONUORDI (2006) 5 SC (Pt. iii) 103 that “The position of the law is that in a case for declaration of title to land, a plaintiff must prove his claim with cogent, satisfactory and un-contradicted evidence, which includes the establishment of the identity of the land in dispute.” See ONIBUDO V AKIBU (1982) 7 S.C 29; AIKHIONBARE V OMOREGIE (1976) 12 S.C 6, and ODESANYA V EWEDEMI (1962) 1 All NLR 320. PER SOTONYE DENTON-WEST, J.C.A.
PROOF OF TITLE TO LAND: WAYS BY WHICH PROOF OF TITLE TO LAND CAN BE PROVED
The mode or way of proof to title or ownership of land can be proved in five ways. They are 1. By traditional evidence. 2. By production of documents of title duly authenticated and executed. 3. By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership. 4. By acts of possession and enjoyment. 5. Proof of possession of connected or adjacent land would in addition, be the owner of the land in dispute. See OMOREGBE V IDIGIEMWANYA (1985) 2 NWLR (Pt. 5) 41, MOGALI V CADBURY (1985) 2 NWLR ((Pt.7) 393; EZEOKE V NWAGBA (1988) LNWLR (Pt. 72) 616; FASARO V BEYIOKU (1988) 2 NWLR (Pt. 76) 263, OKPURUWA V CHIEF OKPOKAM (1988) 4 NWLR (PT. 90) 554. A plaintiff need not prove all the five ways to succeed in an action for title to land, he can succeed if he proves even one of the ways. See IDUNDUN V OKUMAGBA (1976) 9 -10 SC. PER SOTONYE DENTON-WEST, J.C.A.
BURDEN OF PROOF: A PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS CASE AND NOT ON THE WEAKNESS OF THE DEFENCE
It is trite law that a plaintiff must succeed on the strength of his case and not on the weakness of the defence see CIVIL DESIGN CONSTRUCTION NIG. LTD V SCOA NIG. LTD (2007) 2 SC 195. PER SOTONYE DENTON-WEST, J.C.A.
BURDEN OF PROOF/ STANDARD OF PROOF: WHETHER FAILURE ON THE PART OF A DEFENDANT TO GIVE EVIDENCE AUTOMATICALLY MEANS THAT JUDGMENT MUST BE GIVEN IN FAVOUR OF THE PLAINTIFF ; EFFECT OF THE FAILURE OF THE PLAINTIFF TO PROVE HIS CASE ON THE BALANCE OF PROBABILITY OR ON PREPONDERANCE OF EVIDENCE
Failure on the part of a defendant to give evidence does not automatically mean that judgment must be given in favour of the plaintiff who has a duty to prove his case. Where a plaintiff fails to prove his case on the balance of probability or on preponderance of evidence, his case would be thrown out notwithstanding the fact that the defendant did not prove his case. PER SOTONYE DENTON-WEST, J.C.A.
CONSEQUENTIAL RELIEFS: WHETHER COURTS CAN GRANT CONSEQUENTIAL AIDES THAT FLOW FROM THE MAIN RELIEFS
The respondent successfully proved the root of title of the land as required by the law. It would be wrong for the appellant to say that the lower court granted reliefs that are not supported by evidence. I hold that the objective, unbiased and careful reading and juxtaposition of the two reliefs sought by the respondent and granted by the trial court are not from the blues. Courts can grant consequential aides that flows from the main reliefs. See INAKOJU V ADELEKE (Supra). PER SOTONYE DENTON-WEST, J.C.A.
Before Their Lordships
SOTONYE DENTON-WESTJustice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWAJustice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria
Between
MRS MULIKATU ERINFOLAMIAppellant(s)
SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of Honourable Justice I.O. Akeju delivered on 26th day of February 2008, in which the court granted the reliefs sought by the Plaintiff now Respondent.
The Respondent sought for the following;
A N100,000:00 (One Hundred Thousand Naira Only) general damages for Trespass committed and still being committed by the Defendant on the Plaintiff’s land at Oke-Age street Ado -Ekiti.
1. A Perpetual Injunctive order on the Defendants, his agents, servant and privies from visiting the land or doing anything whatsoever on it.
The Appellant was discontented with the judgment and filed Notice herein under reproduced.
1. The learned trial judge erred in law by his failure to consider the implication of the plaintiff’s claim that the plaintiff has put his title in issue and that to succeed, the plaintiff must prove the root of his title and his exclusive possession and that onus is entirely on the plaintiff and does not shift.
2. The learned trial judge erred in law by relying heavily or exclusively on the weakness of the case of the defence and thereby reached a perverse decision.
3. The learned trial judge erred in law by giving judgment to the plaintiff, when the standard of proof set in this case has fallen short of the requirements sufficient to establish his claim for trespass and injunction.
4. The learned trial judge erred in law when he held ‘from pleading and oral evidence in this suit the plaintiff had proved better title and should get judgment” when on the pleadings there is not a scintilla of fact adumbrating the root of the title nor on the recorded proceedings evidence which shows the plaintiff proving any title at all and thereby reaching a wrong decision.
Wherein four issues were deduced for determination thus;
1. Whether the learned trial judge was right that the burden of proof of root of title shifts from the plaintiff to the defendant when the plaintiff has not proved his root of title.
2. Whether the learned trial judge was right to rely heavily or exclusively on the weakness of the case of the defence by giving judgment for the plaintiff
3. Whether the learned trial judge was right to have given judgment to a party whose standard of proof has fallen short of the requirements sufficient to establishing a claim for trespass and injunction which is exclusive possession
4. Whether the learned trial judge was right to have given judgment to the Plaintiff when on the pleadings there is no root of title pleaded.
Whereas the Respondent on his part formulated three issues for determination thus:-
1. Whether or not, the Respondent successfully pleaded and proved his root of title to the land in dispute
2. Whether or not, the Respondent have(sic) been able to plead and prove his ownership/title to the land in dispute
3. Whether or not, the Respondent was able to discharge the burden of proof of root of title placed upon him in law?
In determining this appeal, the five issues as formulated by the Appellant will be used to determine this appeal.
Issue One
Whether the learned trial judge was right that the burden of proof of root of title shifts from the plaintiff to the defendant when the plaintiff has not proved his root of title.
On issue one the Appellant argued that where a complainant claims damages for trespass and an injunction restraining the adversary from re-entering the land, the Plaintiff must proof the root of his title and if he failed he must have his case dismissed as the onus of proof does not shift from the plaintiff to the Defendant, he thereafter submitted that the lower court erred in law to hold otherwise. Appellant further contended that it is a bad law and that onus cannot shift to the Defendant when the Plaintiff has not proved his traditional title and that there will be no need for imaginary scale to tilt. He referred to the case of NWABUOKU V ONWORDI (2006) 5 SCNJ, 368 at lines 18-25 to buttress his position, Appellant also contended that there was no evidence in support of the root of title supporting the Plaintiffs case and that where there is no scintilla of evidence as required by law that the Defendant must prove his root of title and that the respondent must prove his root of title and that the appeal should be allowed. He referred to the case of OWOADE V OMITOLA (1988) 2 NWLR 388-508 to buttress his argument and he prayed this court to hold that the Plaintiff has not proved a better title.
The Respondent on his own submitted that the Respondent’s ask for damages for trespass and perpetual injunction and that his title to the land is in dispute, he referred to the case of AKIN JERINWA V OLADUNJOYE (2006) 6 NWLR (Pt. 659) 97 at 115 to buttress his position and argued that paragraphs 4, 5, 6, and 7 of the Statement of Claim as well as paragraphs 2, 3, 4, 5, 6, 7, 8, and 9 of the Statement of Claim successfully pleaded the Respondent’s title to the land.
He referred to the evidence of the plaintiffs 1st witness and the evidence of the Respondent and he wants the court to observe that four years after pleadings were exchanged and after the close of the Respondent’s case, the Appellant was able to secure a radically amended statement of defence and he claimed that his title emanated from the Idolofin family Oke- Age, Ado- Ekiti.
The Respondent contended that the Appellant called four witnesses who are members of Idolofin family of Ado-Ekiti, but that the four witnesses gave contradictory, inconsistent and different accounts and history of the land in dispute, that they said the parcel of land belongs to Idolofin family in one breadth and in another breadth, they claimed it belongs to Roman Catholic Church. He thereafter contended that a court will not believe a party and his witnesses where there are contradictory and manifest inconsistencies in their evidence as to title to land. He referred to the cases of IGE V AOKO (1994) 4 NWLR (Pt 340) 535 at 543, EPI V AIGBEDION (1973) NWLR 192 at 196 and AMATA V MODEKWE 14 WACA 580 at 582 -583 to support his position.
It is further submitted that the entire evidence of the Appellant’s four witnesses are at variance with their pleadings in relation to the appellants grant of land. He referred this court to the case of EMEGOK-WUBE V OKADIGBO (1973) NWLR, 192 at 196. Respondent submitted that he has pleaded and proved his title by credible evidence and tracing his root of title to the Ijigbo family of Ado-Ekiti who were the original settlers on the aforesaid land, he referred this court to the case of ALLI V ALESINLOYE (2000) 6 NWLR (Pt. 660) 177 at 203 -206 to buttress his argument that he proved all that is required from him. Respondent further contended that his witness was consistent in his evidence before the lower court that the Ijigbo family of Ado-Ekiti were the founders and first settlers on the land in dispute. That no court will act on the contradictory evidence of the Appellant.
The Respondent thereafter argued that since the Idolofin family have denied allocating the land in issue to the appellant’s father, he thereafter submitted that the evidence of root of title of the Appellant has failed, he referred this court to the case of OKOKO V DAKOLO (2006) 14 NWLR (Pt. 1000) 401 at 417 to support his position. Respondent thereafter contended that he has discharged the Burden of Proof on him and he prayed this court to so hold. He referred to the case of FATOYINBO V OSADEYI (2000) 16 NWLR (Pt. 1168) to buttress his position, he thereafter prayed this court to resolve the issue in favour of the Respondent and dismiss the Appeal.
RESOLUTION OF ISSUE ONE
The burden of proof in land matters though depends on the state and content of pleadings, the onus is mainly on the Plaintiff however the onus will not move unto the Defendant. It is trite that he who asserts must prove and similarly he who seeks title to land must prove that title and must discharge same. This burden does not shift in any way or form to the defendant, it is like the constant theory of the sun rising from the east and setting in the west. It is only after the plaintiff has given evidence of title to the land that the defendant leads contrary evidence to expunge the plaintiffs evidence. In a claim for declaration of title to land, the onus is on the plaintiff to prove title to a defined area. See ODESANYA V EWEDEMI (1962) 1 All NLR 320. The erudite jurist Mukhtar JSC held in NWABUOKU V ONUORDI (2006) 5 SC (Pt. iii) 103 that “The position of the law is that in a case for declaration of title to land, a plaintiff must prove his claim with cogent, satisfactory and un-contradicted evidence, which includes the establishment of the identity of the land in dispute.”
See ONIBUDO V AKIBU (1982) 7 S.C 29; AIKHIONBARE V OMOREGIE (1976) 12 S.C 6, and ODESANYA V EWEDEMI (1962) 1 All NLR 320.
The mode or way of proof to title or ownership of land can be proved in five ways. They are
1. By traditional evidence.
2. By production of documents of title duly authenticated and executed.
3. By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership.
4. By acts of possession and enjoyment.
5. Proof of possession of connected or adjacent land would in addition, be the owner of the land in dispute.
See OMOREGBE V IDIGIEMWANYA (1985) 2 NWLR (Pt. 5) 41, MOGALI V CADBURY (1985) 2 NWLR ((Pt.7) 393; EZEOKE V NWAGBA (1988) LNWLR (Pt. 72) 616; FASARO V BEYIOKU (1988) 2 NWLR (Pt. 76) 263, OKPURUWA V CHIEF OKPOKAM (1988) 4 NWLR (PT. 90) 554. A plaintiff need not prove all the five ways to succeed in an action for title to land, he can succeed if he proves even one of the ways. See IDUNDUN V OKUMAGBA (1976) 9 -10 SC.
On page 41 of the Record of Proceedings, the 1st Respondent witness gave this oral evidence before the lower court.
“I am from Ijigbo family whose family land is located at Oke Age, Ado- Ekiti, Lawson Cole, Defendant’s father does not belong to our family, the Defendant does not belong to our family, as his father also does not have land there”.
He further stated that;
“My land unto which the Defendant entered is at the front of my house at the back of the fence of Catholic Church at Oke- Age, Ado-Ekiti, the land was in bush which I have cultivated for over 50years… during the life time of the deceased Lawson Cole, there was a dispute between him and myself over this piece of land in front of my house, and this led to litigation in court thereby the Judgment was given in my favour. He paid 100 pounds to me. (Emphasis mine)
This piece of evidence was neither disturbed, distorted nor discredited. The Respondent’s witness too gave similar evidence and same stands undisturbed
The important part of his evidence on page 56 goes thus:
“I know the house of Lawson Cole, the defendant’s father. On the way to Idolofin, the house after Lawson’s house is that of Ogunmaseye followed by the house of Ogun Ojo followed by that of Alhaji Alagamu, followed by that of Remi Jos Aduloju and all these five people belong to the family of my father while the land on which they built were granted to them by Ijigbo family, part of which is my own family Ogo Omololu.”
This piece of evidence and the pleading at the lower court clearly shows that the Respondent have discharged the burden of proof of title to the land in dispute and at this point, the onus shifts onto the Appellant to discountenance the Respondent’s evidence.
The Defendant’s 1st witness gave evidence thus:
“…but the land in dispute forms part of the land granted to Roman Catholic Mission by Idolofin on the instruction of Ewi. The land in dispute belongs to the Roman Catholic Church and not to Elesin family again… The land in dispute does not form part of the land Idolofin granted Cole.” (Emphasis mine)
The Appellant’s third witness stated that the disputed land does not form part of the land given to Lawson Cole, whereas the Appellant on page 68 of the Record of Proceedings stated thus;
“The land in dispute did not form part of the land granted to my father but it was Idolofin people that gave it to me for my kiosk.”
Shorn of any Embellishment, the Appellant did not in any way show that she is entitled to the Land in dispute and the Respondent showed that apart from the fact that his family had been on the land in issue for over 50 years, they own all adjoining land, whereas the Appellant’s defence witness gave two contradictory evidence to wit, one, that the land belongs to one Roman Catholic Mission and two, that the land belongs to Idolofin family of Ado-Ekiti, Ekiti state, thus the holding of the lower court on page 88 that:
“It is good law that where a plaintiff led evidence which supports his case and which may entitle him to the judgment of the court, the onus shifts to the Defendant to adduce evidence that will be credible and cogent enough to tilt the imaginary scale against the Plaintiff”
The Respondent proved his case as required by law and I hold that the lower court was right that the burden of proof of root of title shifts from the Plaintiff to the Defendant when the Plaintiff has proved his root of title adequately.
Issue one is resolved in favour of the Respondent against the Appellant to the extent that the lower court was right that the burden of proof of title shifts from the plaintiff to the defendant when the plaintiff now the respondent has proved his root of title.
Issue Two
Whether the learned trial judge was right to rely heavily or exclusively on the weakness of the case of the defence by giving judgment for the plaintiff.
The appellant argued that the law is that a plaintiff must rely on the strength of his own case and not on the weakness of the case of the defence. He referred to the case of KODILINYE V ODU (1935) 2 WACA, that in a claim of declaration of title, the onus is on the plaintiff and must rely on the strength of his own case and not on the weakness of the defence, he referred to the cases of JULES AND AJATH (1980) 5. 7 SC e 96 to buttress his position and OTANMA V YOUBUBAGHA (2006) 1 SCNJ 110 and UKAEGBU V NWOLOLO (2009) 1 SCNJ, 49 to buttress his position.
Appellant further contended that plaintiff has to show that he is entitled without any help. He referred to the case of PLATEAU WIVEST & PROPERTY LTD V EBHOTA (2001) FWLR 20 e 420 Pt 64 e 380. The respondent on his own argued that he need to plead and prove that title ownership in one or more of the five ways, respondent thereafter submitted that there are five ways/methods of establishing ownership of land and these are
1. Proof by traditional history/traditional evidence
2. Proof by grant of production of document of title
3. Proof by acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the person exercising such acts are the true owners of the land 4. Proof by acts of long possession and
5. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute.
That all he needs to prove is one of the five ways of the highlighted methods. He referred to the cases of IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 e 250; ALI V ALESINLOYE (2000) 6 NWLR (Pt 660) 177, 201-201; NWANKWO V OFOMATA (2009) 11 NWLR (Pt 1148) 107 e 130 and AMADI V CHINDA (2009) 10 NWLR (Pt 1148) 107 e to support his assertion.
Appellant thereafter submitted that the respondent successfully pleaded and proved his ownership to the land in dispute by traditional evidence, acts of ownership, numerous, positive and extending over a length of time as to warrant the inference of ownership, long enjoyment and possession and by proof of possession of adjacent land. The respondent thereafter urged this court to resolve this issue in his favour.
Resolution of Issue Two
It is trite law that a plaintiff must succeed on the strength of his case and not on the weakness of the defence see CIVIL DESIGN CONSTRUCTION NIG. LTD V SCOA NIG. LTD (2007) 2 SC 195.
Failure on the part of a defendant to give evidence does not automatically mean that judgment must be given in favour of the plaintiff who has a duty to prove his case. Where a plaintiff fails to prove his case on the balance of probability or on preponderance of evidence, his case would be thrown out notwithstanding the fact that the defendant did not prove his case.
Respondent issue two have been adequately taken care of in the resolution of issue one and still taking flight from that angle, I agree in toto with the appellant that a court will not rely on the weakness of a defence case to give judgment to the plaintiff, the plaintiff is expected to establish his claims by credible evidence in accordance with his pleadings and this they did, the respondent proved his case on the preponderance of evidence. The evidence relied upon by the respondent to prove his root of title is clear and reliable, thus the lower court never relied on the weakness of the case of the defence in giving judgment to the plaintiff who is now the respondent but judgment was given to the respondent based on the strong evidence he produced at the lower court.
In view of the above, issue two is resolved against the appellant in favour of the respondent to the extent that the lower court did not rely on the weakness of the defence to give judgment to the plaintiff but on the raw evidence of the plaintiff himself which was stated in the lower court.
Issues Three and Four
Whether the learned trial judge was right to have given judgment to a party whose standard of proof has fallen short of the requirements sufficient to establish a claim for trespass and injunction which is exclusive possession
Whether the learned trial judge was right to have given judgment to the plaintiff when on the pleadings there is no root of title pleaded
The appellant argued his issues 3 and 4 together and both will be resolved together. The appellant submitted that the respondent’s pleadings and evidence before the court were simple averment that the land belongs to him and nothing more and that they are bare assertions. He referred to the cases of UKAEGBU V NWOKOLO (Supra) and ADEBAYO V SHOGO (2005) 2 SCNJ to buttress his position.
This issue had been initially resolved to the extent that the respondent proved title to the land the respondent who was the plaintiff at the lower court proved his case. There is no dispute about the land as the two parties agreed on the land and, the burden of proof which was on the respondent have been proved to the satisfaction of the lower court and same was affirmed in issue one, for emphasis sake, in all cases of declaration of title to land, generally, like other cases, the burden of proof is on the plaintiff to prove his case by credible evidence in line with his pleadings and his case will collapse if he fails to discharge that duty. In the instant suit the respondent relied on long ownership i.e. farming for about 50 years and being family land, that the family allocated land to adjoining neighbours. See KODILINYE V ODU (1935) WACA 336; ELUFISOYE V ALABETUTU (1968) NWLR 298. My brother JEGA (JCA) held in ISITOR V FAKOREDE (2007) 27 WRN 129 e 148 -149 held inter alia that
“What is required of the respondent in an action of declaration of ownership of land is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim where however the plaintiff has produced evidence in support of his case which prima facie will entitle him to judgment the defendant will need to lead some evidence to enable the court to consider on whose side the case preponderates”
This assertion above juxtaposes my earlier stand that the respondent proved his case at the lower court. The appellant’s issues 3&4 are resolved against the appellant in favour of the respondent. On the respondent’s issue three the respondent submitted that the burden of proof of title to the land in dispute rest on the plaintiff and that he must discharge the burden by credible, believable and preponderate evidence, he referred to the cases of SAKA OWOADE V JOHN OMITOLA (1988) 2 NWLR (Pt.77) 413, ODIETE V. OKOTIE (1975) 1 NWLR Pt.178 and GAJI V. PAYE to buttress his argument. Respondent contended that he pleaded and proved by the respondent that his sole witness that the land in dispute originally belonged exclusively to their Ijigbo family of Ado-Ekiti, Ekiti state and his ancestors who are members of Ijigbo family of Ado-Ekiti, Ekiti State. He prayed this court to dismiss the appeal and uphold the decision of the lower court.
Without being immodest and for clarity sake, the respondent proved his case of ownership of title to the land in dispute and his evidence stands unchallenged.
Shorn of repetition, it is settled law that the five methods of proving title to land are:
a) By traditional evidence of the history of the land which includes mode of acquisition of same by deforestation of the virgin forest by the first settler, conquest of original owners through acts of war, gifts e.t.c.
b) By production of documents of title to the land
c) By acts of possession,
d) Acts of selling or leasing of portions of the land
e) Proof of possession of connected and adjacent land
See ODUNYE V NWOSU (Supra). The respondent successfully proved the root of title of the land as required by the law. It would be wrong for the appellant to say that the lower court granted reliefs that are not supported by evidence. I hold that the objective, unbiased and careful reading and juxtaposition of the two reliefs sought by the respondent and granted by the trial court are not from the blues. Courts can grant consequential aides that flows from the main reliefs. See INAKOJU V ADELEKE (Supra).
The judicial authorities cited by the appellant in support of his argument are of no moment in this appeal.
In conclusion, I find no merit whatsoever in this appeal and it is consequently dismissed. I also affirm the judgment of the lower court and I make order as to cost of N 20,000.00
CHIDI NWAOMA UWA, J.C.A.: I agree.
TOM SHAIBU YAKUBU, J.C.A.: I read the draft of the judgment just delivered by my Lord, Sotonye Denton West, JCA. I am in total agreement with the reasoning and conclusion contained therein. I too dismiss this appeal and affirm the judgment of I. O. Akeju, J, of 26th of January, 2008.
I abide by the order as to costs contained in the leading judgment.
Appearances
APPELLANT absentFor Appellant
AND
ADEMOLA ADEYEMI holding brief for
T. A. B. ADENIPEKUN for the RESPONDENT.For Respondent
