OGANA IKADE & ANOR v. CHIEF BARNABAS IKONG OBOK
(2012)LCN/5389(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of May, 2012
CA/C/201/2010
RATIO
EVIDENCE: ON WHOM LIES THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND
A plaintiff who claims a declaration of title to land has the burden of setting out clearly by who and how the land was founded and the names of persons who had exercised acts of ownership on the land before it devolved upon him. Olokotintin vs. Sarumi (2002) 3 NWLR pt.784 page 307.
In a claim for declaration of title to land, the onus is on the party to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The party must, therefore, satisfy the Court that upon the pleading and evidence adduced by him, he is entitled to the declaration sought. Gbadamosi vs. Dairo (2007) 3 NWLR pt.1021 page 292; 282; Dada vs. Dosunmu (2006) 18 NWLR pt.1001; Onisaodu vs. Elewuju (2006) 13 NWLR Pt.998 page 517; Ajiboye vs. Ishula (2006) 13 NWLR Pt.998 page 628. PER UZO I. NDUKWE-ANYANWU, J.C.A
COURT: WHICH COURT HAS THE PRIVILEGE OF OBSERVING WITNESSES AND ASSESSING THEM
The trial Court is the only Court that has the privilege of observing witnesses and assessing them to ascertain whether they are truthful witnesses. PER UZO I. NDUKWE-ANYANWU, J.C.A
LAND LAW: DUTY OF A PLAINTIFF WHO SEEKS A DECLARATION OF TITLE
In an action, for declaration of title to land based on communal ownership, there is need for the plaintiff to plead facts showing how the land in question became communal property and also the identity of the communal ancestor ought to be established. See Echi vs. Nnamani (supra).
Invariably, a plaintiff who seeks a declaration of title is duty bound to prove his root of title to the land. He must also prove the title of his grantor. The burden of proof on the plaintiff is not discharged even where the scales are evenly weighted between the parties. Archibong vs. Edak (2006) 7 NWLR Pt.980 page 485; Dike vs. Okoloedo (1999) 10 NWLR Pt.623 page 359; Otanma vs. Youdubagha (2006) 2 NWLR Pt.964 page 337. PER UZO I. NDUKWE-ANYANWU, J.C.A
LAND LAW: ESSENTIAL ELEMENT IN ANY LAND TRANSACTION
In any land transaction consideration must pass, all be it a token. PER UZO I. NDUKWE-ANYANWU, J.C.A
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. OGANA IKADE
2. MR. IBWOLO INAKU Appellant(s)
AND
CHIEF BARNABAS IKONG OBOK Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Cross River State sitting in Ogoja delivered on 14th October, 2010.
Briefly, the Respondent as claimant in the Court below claimed that in November, 2007 he fulfilled the Requisite customs and traditions and acquired the land in dispute from Wanele Community in Wanikande, Yala Local Government Area of Cross River State. He also claimed that the 1st Appellant as defendant trespassed on his land.
The elders of Wanikande intervened and affirmed the ownership of the Respondent. On 3rd August, 2009 when he was preparing to mould blocks and start building on the disputed land, the 1st Appellant encroached on the land again.
The Respondent, thereafter, took out a suit in the Customary Court NO.NUDC/20/2009 against the Appellant. Upon being served with the Summons, the Appellants made a report to the Area Command of the Nigeria police Force Ogoja who arrested and detained of the Respondent and one Francis Odey, for malicious damage. They were both later released.
The Respondent thereafter filed this suit in the High court Ogoja on 20th August, 2009. After a full trial, the trial Judge delivered his considered judgment.
Being dissatisfied, the Appellant filed a notice and 3 grounds of Appeal. The Appellant filed his Appellant’s brief on 17th January, 2011 and articulated only one issue for determination as follows:
“Whether, having regard to the evidence on record, the learned trial Judge was right when he entered judgment for the Claimant/Respondent, instead of the Defendants/Appellants (Ground 1, 2 and 3).”
The Respondent filed his brief on 30th March, 2011 and was deemed properly filed and served on 28th June, 2011. The Respondent articulated 2 issues for determination namely:
1. Whether there was any contest to the title of the Respondent to the land in dispute such as would require him to prove his grantor’s root of title.
2. Whether there was any piece/parcel of land with clearly ascertainable boundaries and proved on record, such as entitles the Appellants to a declaration of title thereto.”
The lone issue articulated by the Appellants is very general in nature. I would therefore, adopt the 2 issues articulated by the Respondent in the determination of this appeal.
ISSUE 1:
“whether, having regard to the evidence on record, the learned trial Judge was right when he entered judgment for the Claimant/Respondent, instead of the Defendants/Appellants (Ground 1, 2 and Learned counsel to the Appellants, Patrick Eka, who settled the brief submitted that the declaration of title by the learned trial Judge in favour of the Respondent is without foundation. In an action for declaration of title to land, the onus is on the plaintiff to prove his case until this duty is discharged, the defendant has no duty to discharge as none is shifted thereto, Counsel stated the five methods a party may prove his title to land in an action for declaration of title. They are viz:
“(i) Proof by traditional history or traditional evidence:
(ii) Proof by grant or the production of document of title.
(iii) Proof by acts of ownership extending over sufficient length of time, numerous and positive enough as to warrant the inference that the Persons exercising such acts are true owners of the land.
(iv) Proof of acts of long possession; and
(v) 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.”
A party may rely on any or more of the ways to prove his claim. This was emphasized by Ogundare, JSC in Awara Alalibo (2003) FWLR (Pt.144) page 415.
The learned counsel submitted that it is settled law that in an action for declaration of title to land, a party who traces his root of title to another must plead and prove the title of that other person. see Wuroma vs. Gashua (2002) FWLR Pt.106 page 1030 where it was held that:
“Once a Party Pleads and traces his root of title in action for declaration of title to land to a particular person or source and the averment, as in this case, is challenged, that Party to succeed as a plaintiff must not only establish his title to such land, he must also satisfy the Court as to the title of the person or source from whom he claims. He cannot totally ignore the validity of his grantor’s title where the title has been challenged and concentrate only on his own title to such land.”
See also Owhonda vs. Ekpechi (2001) FWLR Pt.181 page 1565 where Musdapher, JSC held inter alia:
“If a party bases his title on a grant according to custom by a particular family or community, that party must go further to plead and Prove the origin of the, title of that Particular family or community.”
Counsel submitted that the Respondent who traced his title to Wanele Community neither pleaded nor led any evidence in proof of his grantor’s title to the land in dispute. Counsel referred the Court to the written statement of PW1, PW2 and PW3 at pages 6-8 of the Record of Appeal where the Respondent traced his title to the Wanele Community but failed to prove the title of the Community that gave him the title to the land. See the decision of the Supreme Court in Uka vs. Irolo (2002) FWLR Pt.127 page 1167 where it was held that:
“It is enough that a plaintiff pleads and succeeds on one of more than one method. Where, however, a plaintiff pleads a primary root of title such as traditional history or documents of title and acts of ownership which are dependent on that main root of title, he cannot succeed if he fails to prove that main root of title.”
Counsel submitted that the failure of the Respondent to prove the title of his grantor, his action for declaration of title to this disputed land must fail.
Counsel, therefore, urged the Court to allow this appeal and set aside the decision of the lower Court. In his own submission, counsel for the Respondent submitted that if a claimant and a defendant lay claim to a piece of land title to the land is raised and it becomes an issue. Chief Asaba Enuri vs. Chief Dominic Imieyeh (1999) 4 NWLR Pt.599 page 443; Polycarp vs Nnadi vs Damais O.C. Okoro (1998) 1 NWLR pt.535 page 580. Counsel submitted that, the descriptions of the land in dispute by the Appellants’ witnesses is different from the one described by the Respondent. With this discrepancy in description of the land in dispute, Counsel submitted that the location of the land by its description is a sine, qua non to a successful claim to title. see Alhaji Musa Adu Ors. vs. Saka Gbadamosi & Ors. (2009) 6 NWLR pt.1136 page 110 where the court of Appeal held:
“A plaintiff seeking a declaration of title to land must first and foremost plead and prove clearly the area of land to which his claim relates, and the boundaries thereof, and if the size and location of the land is in issue, the exact claimed. Thus, the proof of identity of land is a sine qua non to establishing a case of declaration of title to land.”
Counsel contended that from the evidence of the parties, they cannot be referring to the same land. Counsel finally contended that the Appellants’ have not successfully challenged the title of the Respondent or that of his grantor. There was, therefore, no contest to the Respondent’s title to the land in dispute such as would require the Respondent to prove his grantor’s root of title and urged the court to find for the Respondent in this issue.
There are 5 ways of proving or establishing title to land or ownership of land:
These are by traditional evidence; production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time; by acts of long possession and enjoyment of the land; by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute.
The law is that the establishment of one of the five ways is sufficient proof of ownership. Nkado v. Obiano (1997) 5 NWLR (pt 503) 31 at 34, Nkwo vs. Iboe (1998) 7 NWLR (pt 558) 354.
A plaintiff who claims a declaration of title to land has the burden of setting out clearly by who and how the land was founded and the names of persons who had exercised acts of ownership on the land before it devolved upon him. Olokotintin vs. Sarumi (2002) 3 NWLR pt.784 page 307.
In a claim for declaration of title to land, the onus is on the party to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The party must, therefore, satisfy the Court that upon the pleading and evidence adduced by him, he is entitled to the declaration sought. Gbadamosi vs. Dairo (2007) 3 NWLR pt.1021 page 292; 282; Dada vs. Dosunmu (2006) 18 NWLR pt.1001; Onisaodu vs. Elewuju (2006) 13 NWLR Pt.998 page 517; Ajiboye vs. Ishula (2006) 13 NWLR Pt.998 page 628.
In the instant case, the Respondent as party claimed for a declaration of title to the land in dispute. In the Respondent’s pleading, he pleaded in paragraphs 3 & 4:
“3. Sometime in November, 2007, the Claimant in accordance with the customs and tradition of Wanikande people in relation to acquisition of land from the community, indicated interest in acquiring the piece/parcel of land lying, situate and being at Wanele Market Road, Wanele Village, Wanikande and bounded in the North by Peter Okpayi, Ogana Okiti and Okem Inawo’s lands, south by Wanele Market Road, East by Lukpata Ikade’s land and a football field and West by Hon. Francis Odey’s land.
4. Furthermore, the Claimant gave the community the requisite, wine payment and was granted ownership and immediate possession of the said land, with the go-ahead to commence development on the land as soon as it pleases him.”
These 2 paragraphs represented what the Respondent did to acquire land from the Wanikande Community of which the Appellants also belonged to, though from different villages. In traversing these paragraphs, the Appellant stated in paragraphs 2, 3, 4 and 5 of his statement of Defence:
“2. The Defendant denies paragraphs 5 and 4 of the statement of Claim. He avers that ownership of land in Wanikande Community by custom and tradition is not communal but by individual and family ownership of farmlands.
3. The Defendant avers further that the piece and parcel of land in dispute is lying and situate at Iyango Village Wanikande and bounded at the North by Mr. Francis Odey’s farm land, where his step daughter by name the Udu cultivated yam farm presently, at, the south by Ndohale Abalike-Item Market Road, at the East by Ibol Inaku’s farm land and to the West by a Road leading to Francis Odey’s house in Iyango Village Wanikande.
4. The Defendant in further reaction to paragraph 4 of the statement of claim avers that acquisition of land in Wanikande Community is not by payment of wine to he community simpliciter. He avers that the tradition and custom demands that if any person who is interested in a particular piece of land for the purpose of building a house is not from Iyango Village as is the case with the Claimant who is from Wanele Village, the person has to first consult with the Council of Village Chiefs and Elders who would them refer the interested person to the individual owner or family for the requisite consent. The individual owners of the piece of land will then request for some token of money and drinks as consideration for alienating their individual or family heritage to another person.
5. The Defendant avers that the claimant did not consult anybody and no such permission or authority was granted him to take possession of the piece of land in dispute.”
With the above traverse by both the Appellants and the Respondent, ownership and title of the grantor has become an issue. Issues have been joined. It, therefore, beholds the Respondent to prove his title and the title of the grantor ie the community.
“Where a party’s claim for title to land is founded upon a grant by a particular person, family or community, under native land and custom, that party must plead and prove the origin of the title of such person, family or community unless that title has been admitted.
Inko-Tariah v. Good-head (1997) 4 NWLR Pt.500 page 453, Ekpechi v. Owhonda (1998) 3 NWLR Pt.543 page 618.”
In an action for declaration of title to land based on communal ownership, there is need for the party to plead facts showing how the land in question became communal land. Also the identity of the communal ancestor ought to be established. Echi vs. Nndmani (2000) 5 SC page 62.
The question to ask here is “has the Respondent proved the ownership of the title of the Wanikande Community he said granted him the use of the land in dispute?”
In the Respondent’s Statement of claim, he pleaded that after giving the traditional drink, he was granted the use and title to the land in dispute. The Appellant also pleaded that the way and manner the Respondent claimed he was granted the title to land did not follow the normal course of acquiring land in Wanikande Community of which both parties belonged.
The Respondent neither proved his title nor that of the Wanikande Community that purportedly granted him title. The Respondent’s witnesses only gave a stereotype evidence. Their sworn statement on oath is very similar to each other. None of them could give in details the mode or the processes of the acquisition of that land according to Wanikande customs. The witnesses were not ad idem to the various landmarks about the location of the land in dispute. PW2 in cross-examination stated that Iyango and Wanele villages have a common boundary and are not separated by the Abe Stream. Pw3 Francis Odey in cross-examination stated that the Abe Stream is the boundary between Wanele and Iyango villages on the West. Abe Stream ought to be a major landmark in the community, but PW2 & Pw3 are at variance as to its location to the two villages. The learned trial Judge made a comment about the truthfulness of PW1. This is his observation:
“I observe that the witness prevaricated and takes long periods answering questions.
Always looking towards counsel for guidance.”
This is the observation by the court of the pw1 who is the claimant in the court below and the present Respondent. The trial Court is the only Court that has the privilege of observing witnesses and assessing them to ascertain whether they are truthful witnesses. The Respondent was not even sure of his oral, testimony. Can one rely on him, and his witnesses, to ascertain the truth? I think not.
In an action, for declaration of title to land based on communal ownership, there is need for the plaintiff to plead facts showing how the land in question became communal property and also the identity of the communal ancestor ought to be established. See Echi vs. Nnamani (supra).
Invariably, a plaintiff who seeks a declaration of title is duty bound to prove his root of title to the land. He must also prove the title of his grantor. The burden of proof on the plaintiff is not discharged even where the scales are evenly weighted between the parties. Archibong vs. Edak (2006) 7 NWLR Pt.980 page 485; Dike vs. Okoloedo (1999) 10 NWLR Pt.623 page 359; Otanma vs. Youdubagha (2006) 2 NWLR Pt.964 page 337.
The Respondent has not discharged this burden placed on him by law. The Respondent fails or wins by the strength of his case.
The act of vesting title in respect of a piece of land in a person is a matter of law to be deduced from the facts and evidence admitted. Nasiru vs. Abubakar (1997) 4 NWLR pt.497 page 32.
The location of the land in dispute was not ascertained as the Appellants and Respondent described the land differently.
The trial Judge held inter alia that:
“While testifying in Court this witness came through to me as a truthful witness. I even made a note of it in the Court’s record. If the land in dispute is in Iyango village, then the land of Pw3 must also be in Iyango village. But that is not the case here. The Defendants are not contending that PW3’s land is in Iyango village. Whether Wanele village is separated by road or Abe Stream, there is no evidence before me that pw3’s land and that of the Claimant are separated by either the road or the stream. The evidence is that both lands are on the same side of the road, and on the same side of Abe stream. Then they must he in one village.
There is a rebuttable presumption of law that adjoining lands belong or belonged to one owner/person. In the instant case both sides are agreed that the land in dispute borders the land of PW1 which is in Wanele village. The presumption is that the land of the Claimant is also in Wanele village. That presumption was not rebutted by the Defendants.”
The location of the land in dispute is not what is in dispute but, the trial Judge held that the land in dispute is in Wanele village because PW3 said his land and the Claimant’s land is adjoining and as such is in the same village. Two adjoining lands does not necessarily have to be in the same village. They might be adjoining but in different villages. The trial Judge should have gone to the locus in quo to ascertain the location of the land in dispute and to verify the testimony of the witnesses.
The trial Judge presumption of the location of the land is unfounded both in law and common sense.
The trial Judge in his judgment did not believe any of the Prosecution Witnesses nor the Defence Witnesses except PW3.
The trial Judge has this to say about the witnesses:
“The evidence of all other witnesses for the Defendants falls into the same category as those given by PWs. 1 & 2. I do not believe them for the reasons stated in this judgment earlier. I rather believe that the land in dispute here is in Wanele village and was duly allocated to the Claimant in this case.”
The trial Judge did not believe the witness including the Respondent himself and still went ahead to enter judgment for him. He only believed PW5 as to the location of the land in dispute. The location of the land is not the issue but declaration Respondent did not prove his title neither did he prove the title of the Wanele community that granted him title. The onus is on the Respondent to establish his claim as plaintiff upon the strength of his own case and not on the weakness of the case of the Appellant (defendant). The Respondent must, therefore, as plaintiff, satisfy the Court that upon the pleading and evidence adduced by him, he is entitled to the declaration sought. Gbadamosi vs Dairo (supra); Dada vs. Dosunmu (supra); Onissaodu vs. Elewufu (supra); Afiboye vs. Ishula (supra).
The Respondent as plaintiff failed to prove his root of title relied on. The proper order the trial Judge ought to make in such circumstances is to dismiss the plaintiff’s case. Ndukuba vs. Izundu (2007) 1 NWLR pt.1016 page 492.
This issue, is therefore, resolved against the Respondent.
ISSUE 2:
Whether there was any piece/parcel of land with clearly ascertainable boundaries and proved on record, such as entitles the Appellants to a declaration of title thereto.
The learned counsel to the Appellant submitted that the learned trial Judge based his finding on ‘location’ rather than ‘proof’. Counsel stated that both parties were not in court on a representative capacity. Both parties neither pleaded nor proved their respective community’s title to the land in dispute. Furthermore, the parties made passive references to the boundaries between the two villages with each claiming that the land in dispute is in its community.
Counsel contended that on the issue of boundary, the evidence of PW1 & PW2 are conflicting as to what is bordering the land in dispute. PW1 stated in cross-examination that:
“Defendants live at Iyango village. Iyango and Wanele are boundary neighbours. Their common boundary is not at Abe stream. Wanele is on both sides of Abe stream. Iyango has no boundary with Abe stream: PW1 at page 74 of the records.”
Also pw3 in his cross-examination stated:
“I know Abe stream. It is boundary between Wanele and Iyango in the west but not in the north.”
Inspite of this unresolved conflict, counsel submitted that the learned trial Judge acted in error when he still found that the land in dispute is situate at Wanele village. Counsel finally submitted that the Appellant led credible evidence in proof of their claims i.e. proved their case by traditional history and also by long possession and numerous acts of ownership.
Counsel urged the Court to resolve issue 2 against the Respondent.
In response to this, the learned counsel to the Respondent submitted that the Appellant do not know the lands they were laying claims to counsel contended that there was so much contradiction in the description of the disputed land by the Appellants and their witnesses and referred the Court to the case of Stephen O. Obatan vs. Dr. Momodu Autudu (2004) 17 NWLR Pt.902 page 430 where the Court held:
“The Court will doubt any piece of evidence where there is a contradiction in respect of a material fact. No witness is entitled to the honour of credibility when he has two materials inconsistent evidence given on oath by him on record. Such a witness does not deserve to be described as truthful …”
See also Adu vs Gbadamosi (supra) counsel urged the Court to resolve this issue for the Respondent. It has been held in a plethora of cases that “a party in a claim for declaration of title to land must establish his claim on the strength of his case and not upon the weakness of the case of the defendant.” Gbadamosi vs Dairo (supra).
The trial Judge made a finding and held that he did not believe any of the witnesses on both sides except pw3 Francis Odey. He only believed PW3 as to the supposed location of the land in dispute. On the strength of the location of land, the learned trial Judge found for the Respondent.
The Respondent failed to prove any of the five ways of establishing title to ownership of land. The onus is on the plaintiff and this burden, the Respondent failed to discharge.
The trial Judge was, therefore, in error to have granted the Respondent the declaration of title he claimed. I, therefore, also resolve issue 2 against the Respondent.
Both issues have been resolved against the respondent.
The appeal is, therefore, allowed. The judgment of the trial court is hereby set aside.
By law “the dismissal of a party’s claim for declaration of title to land does not automatically confirm title to the same land in dispute on the defendant/Appellant. Therefore, where a party claims title to land and the court dismisses his claim for failing to prove title, a defendant who has not counter-claimed for declaration of title to the same land does not automatically became entitled to the land. Anwony v. Shodeke (2006) 13 NWLR Pt.996 page 34.
In the instant case, the Appellant also counter-claimed for title to land and sought to prove same by evidence adduced at the trial. The counter-claimant/Appellant described the land in dispute as lying and situate at Iyango village, Wanikande. The land is bordered in the North by the land of Francis Odey PW3, in the south by Ndohale-Abalike-Item Market Road, at the east by Ibol Inaku’s farm land and to the West by a Road leading to Francis Odey’s house in Iyango village Wanikande.
The counter-claimant also gave in details the mode of acquisition of land in Wanikande community. The Respondent did not seem to know or give details as per the mode of acquisition of land in Wanikande Community. The Respondent did not seem to know or give details as per the mode of acquisition of land in Wanikande community. The counter-claimant gave in evidence that a token of money and drinks must be paid as consideration for alienating their individual or family heritage to another person. The counter-claimants detail of land alienation in Wanikande is more plausible. In any land transaction consideration must pass, all be it a token.
The counter-claimant in his statement on oath averred that he has been in quiet possession of this land since his father died. He, therefore, inherited from his father who as well inherited from his own father. This means that his grand father was also in possession of this same land. The counter-claimant has been in quiet possession until 2009 when the respondent cleared part of the land to build a house. The Counter-claimant resisted this trespass and promptly prevented the Respondent from further trespass, by making a complaint to the Nigeria Police Area command in Ogoja. The Respondent and his agent are still standing trial in the Magistrate court, Yahe for malicious damage to the counter-claimant’s crops.
The counter-claimant has proved to the satisfaction of the court that for at least three generations, his family has been on the disputed land. They have been in undisturbed possession for a long time. This piece of evidence was also collaborated by DW2 Chief Inawo Odim, the village head of Iyango.
The purported acquisition of this land in dispute by the Respondent is too recent in comparison with the long possession of the counter-claimant. The Respondent has not successfully taken possession of the land in dispute before he filed his suit. In total, the counter-claimant has proved how he came by this land, from inheritance. Himself and his siblings are now occupying the said land and exercising several acts of possession which the claimant/Respondent has not succeeded in rebutting.
All these acts of possession by the counter-claimant is more plausible than that of the claimant/Respondent. The Counter-claimant has proved a better title to this land in dispute.
The law presumes the person in possession of land to be the owner. The burden of proving that he is not the owner is on the person who affirms that he is not the owner. See Okhuarobo Vs. Aigbe (2002) 9 NWLR Pt.711 pg.29.
With the foregoing, I therefore, hold that, the Counter-Claimant/Appellant has proved a better title than the Claimant/Respondent. The appeal is meritorious and hereby allowed. The judgment of the lower court is hereby set aside. I declare that, the counter-claimant appellant is entitled to a customary Right of occupancy in respect of the land lying and situate at Iyango village in Wanikande, North Ukelle, Yala Local Government Area of cross River state which is bounded in the North by the land of Mr. Francis Odey, in the South by Ndohale-Abalike-Item market Road, in the East by Ibol Inaku’s Farm land and to the West by a Road leading to Francis Odey’s compound in Iyango village Wanikande.
I hereby make an order of perpetual injunction restraining, the Respondent, his agents, servants or privies from further trespassing into the said piece of land.
I also award N50,000 cost against the Respondent
JOSEPH TINE TUR, J.C.A.: I have read in draft the lead judgment delivered by my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I concur that the Respondent did not prove the title of his vendors. I shall refer to paragraphs 3-7 of the statement of claim which reads as follows:
“3. sometime in November, 2007, the claimant in accordance with the customs and tradition of Wanikande people in relation to acquisition of land from the community, indicated interest in acquiring the piece/parcel of land lying, situate and being at Wanele Market Road, Wanele Village, Wanikande and bounded in the North by Peter Okpayi, Ogana Okiti and Okem Inawo’s lands, South by Wanele Market Road, East by Lukpata Ikade’s land and a football field and West by Hon. Francis Odey’s land.
4. Furthermore, the Claimant gave the community the requisite wine payment and was granted ownership and immediate possession of the said land, with the go-ahead to commence development on the land as soon as it pleases him.
5. However, in early December, 2007, when the claimant cleared the land in preparation for moulding blocks with which to commence a building thereon, the Defendant entered the said land, met the claimant therein and confronted him with a claim that the land belongs to him. He practically harassed and threatened the Claimant and further prevented him from moulding blocks thereon.
6. Hon. Francis Odey who witnessed the whole incident, advised the claimant to approach the clan Head, Chief Stephen Ogede and lay a complaint in that regard, which the Claimant promptly did.
7. The clan Head then summoned all the chiefs in Wanikande community and they, all with the Defendant and his kinmen, met on 20-01-2008 and deliberated over the matter and entirety agreed that the Defendant from Iwango cannot cross over to Wanele and claim land validly acquired by the Claimant from Ugweke, Wanele village, Wanikande. The matter was finally decided in the claimants favour.”
A combined reading of the above paragraphs of the statement of claim shows that while the claimant/Respondent derived title to the land in dispute from one “Ugweke, vanele village, Wanikande, (see Paragraph n in paragraph 4 it is pleaded that “the Claimant gave the Community the requisite wine payment and was granted ownership and immediate possession of the said land, with the go-ahead to commence development on the land as soon as it pleases him.” The question is: who is the original owner of the land in dispute: Is it the “Ugweke Vanele village, Wanikande” or the “Wanikande community” as pleaded in paragraph 7 of the statement of claim? If the land in dispute belonged to an individual how and when it was founded must be pleaded and proved. See Igbojimadu vs. Ibeabuchi (1998) 1 NWLR (pt.533) 179 at 190-191; Ohiaeri vs- Akabeze (1992) 2 SCNJ (pt.1) 76. Traditional history as to how the land was acquired by the vendor has to be pleaded- see Anyanwu vs. Mbara (1992) 6 SCNJ (Pt.1)22 at 51; Balogun vs. Akanji (2005) All FWLR (Pt.262) 405. The names of the ancestors must be pleaded and proved at the trial. See Akinloye vs. Eyiyola (1968) NMLR 92; Owoade vs. Omitola (1988) 5 SCNJ 1 at 11; Total Nig. Ltd. vs. Nwako & Or. (1977) 5 SC 1. Where communal land is involved the Supreme Court held in Piaro vs. Tenalo (1976) 1 FNLR 229 at 234 as follows:
“We find however in the pleadings and the evidence a total absence of facts about (1) the founding of Bomu village in general and Kporo, the land in dispute, in particular; 2) the persons who founded the land and exercised original acts of ownership, and 6) the persons who have held title or on whom title has developed in respect of the land since the founding before the 1st plaintiff/respondent acquired control of the land on behalf of the community.
All these facts which are necessary for the proper determination of the issue raised are not provided by the sweeping assertion that “the land is communal land of Boma people.” This leaves the traditional evidence in the air and it is fatal to plaintiffs’ claim. See EM. Alade vs Lawrence Awo (1975) 4 SC 215 at 229. The demeanour of witnesses giving traditional evidence is no test of the truth or falsity of the evidence.
That statement that the land is the communal land of Bomu people can only be a conclusion or finding by the Court after proper assessment and evaluation or appraisal of the evidence before it. The proper approach is to consider the activities of the parties in the exercise of their rights and decide whether it accords with the evidence of traditional history (Adenle v. Oyegbade (1967) NMLR 136 at 138).”
The effect of all these is that the Claimant before the trial court had not discharged the onus of Proving the title of his vendor to the land in dispute to warrant his Lordship’s declaration as follows:
“In the end result I hereby enter judgment for the claimant and make the following orders:
1. I hereby declare that the claimant is entitled to a customary Right of occupancy in respect of the land in dispute lying, situate and being at Wanele Market Road, Wanele village, Wanikande and bounded in the North by Peter Okpayi, Ogana Okiti and Okem Inawo’s land, in the South by Wanele market Road, in the East by Lukpata Ikade’s land and a football field and in the west by Hon. Francis Odey’s land.
2. I hereby make an order of perpetual injunction restraining the Defendants, their agents, servants or privies from trespassing into the said land.
3. The claimant claims N5m damages for trespass. At paragraph 5 of Exhibits the claimant says that in December, 2007 the first Defendant confronted the Claimant with his claim over the land. PWs. 2 & 3 say on Exhibits 7 & 8 respectively that the Claimant lodged a report regarding the trespass which they investigated and settled. At paragraph 6 of Exhibit I the first Defendant admits that he indeed prevented the Claimant from moulding blocks on the land but denies harassing him. At paragraph 8 of Exhibit 3 the claimant says in 2009 the first Defendant encroached on his land making mounds and cultivating cassava and palms on it. At paragraph 9 of Exhibit 9 the first Defendant say he cultivated the land as of right because the land belonged to him, thereby admitting the trespass. That was two years after the first Defendant was told in 2007 by the Wanikande community Elders Council that the land belonged to the claimant. For that want on act of trespass I award the sum of N200,000.00 to the Claimant against the first Defendant only.”
But the dismissal of the claimant’s claim in an action for a declaration of title does not mean that the land automatically belongs to the other party. See Udegbe vs. Nwokafor (1963) 1 All NLR 47; Eboha vs. Anakwenze (1967) NMLR 140. The exception is if there is a finding on the evidence that the defendant had established his ownership of the land. See Aro vs. Fabolude (1985) 2 SC 75; Anedu v. Yiboe (1961) 1 WLR 1040
The appellant pleaded from paragraph 3-7 of the Counter-claim how his ancestors acquired the land in dispute as follows:
“3. The Counter-Claimant avers that the said piece of land is bounded in the North by Mr Francis Odey’s farm land where his step daughter by name Ibe Udu cultivated Yam farm presently, at the South by Ndonale- Abatike-Item Market Road, at the east by Ibol Inaku’s farm land and to the West by a Road leading to Francis Odey’s house in Iyango village Wanikande.
4. The Counter-Claimant avers that in accordance with the Custom and tradition of Iyango people of Wanikande Community, that land is owned by individuals and families who have exercised acts of ownership over the respective parcels of land from time immemorial by their ancestors for purposes of farming and or residence.
5. The Counter-Claimant avers that he became entitled to the said piece of land now in dispute when he inherited same from his late father by name Ikade Etep since 1997 when his father died.
6. The counter-Claimant avers that his late Farther inherited the piece of land from his own father Etep Ikade and grand father of the Counter-Claimant who himself acquired the said piece of land when he First cleared and deforested a virgin forest in or about 1950 for residence where the Defendant currently resides and for the purpose of farming in the piece of land now in dispute.
7. The Counter-Claimant avers that his ancestors has been in undisturbed possession of the said piece of land now in dispute and have been exercising acts of ownership since 1950 when his grand father by name Etep Ikade cleared and deforested the piece of land for the purpose of residence and farming up till December, 2007 when the Claimant trespassed into the land and cleared same, and attempted to commence block moulding before the Counter-Claimant timeously, diligently and stoutly resisted, and prevented him from going further with his acts of trespass.”
My Lord has set out in detail the evidence adduced by the counter-claimant at the trial to support the counter-claim.
Land must have an owner or a possessor. In this regard I am also of the view that the appellant proved the counter-claim and was entitled to judgment.
Accordingly, the appeal is allowed. The judgment of the learned trial judge is set aside. The claim of the claimant/Respondent in the lower court is dismissed.
Judgment is entered in favour of the appellant/counter-claimant. I abide by any other orders my Lord has made.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading before now the lead judgment of my learned brother, Uzo I. Ndukwe-Anyanwu, JCA just delivered. I agree with the conclusion that the appeal is meritorious which is based on a thorough consideration of the issues. I too allow the appeal and abide by the consequential order in the lead judgment including that on costs.
Appearances
Pattrick O. Eka, Esq,For Appellant
AND
Mathew Ojua, Esq,For Respondent
