PASTOR SAMUEL KARIMU & ANOR. V. LAGOS STATE GOVERNMENT & ANOR.
(2011)LCN/4697(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of July, 2011
CA/L/639/07
RATIO
DECLARATION OF TITLE TO LAND: WHETHER IN AN ACTION FOR DECLARATION OF TITLE TO LAND A CLAIMANT CAN RELY ON THE WEAKNESS OF THE DEFENDANTS’ CASE IN PROVING HIS CASE
In an action for declaration of title to land the onus lies on the claimant to prove his case. He cannot rely on the weakness of the Defendants’ case. The burden of proof never shifts and the case of the Defendant never comes for consideration until the Plaintiff has established his case. See AROMIRE V. AWOYEMI (1972) 1 ALL NLR page 101 at 113 wherein the Supreme Court held: “on the strength of the authorities, the Plaintiffs title must first be considered and decided upon before a consideration of the title of the Defendant arises. The law is that any weakness in the case of the Defendant cannot be of any assistance to the Plaintiffs. See UMEOJIAKO V. EZENAMUO (1990) NWLR Pt. 126 page. 253 at 267. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
DECLARATION OF TITLE TO LAND: DUTY OF A PLAINTIFF WHO RELIES ON TRADITIONAL TITLE IN AN ACTION FOR DECLARATION OF TITLE TO LAND
A Plaintiff in an action for declaration of title to land who relies on traditional title as in this case on appeal must lead credible evidence to establish the identity of the land, its origin and its devolution from its predecessor in title down to himself. See ELIAS V. OMOBARE (1982) 5 SC page 25 at 57 – 58. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
IDENTITY OF THE LAND IN DISPUTE: DUTY OF THE PLAINTIFF TO PRESENT A SURVEY PLAN THAT CLEARLY SHOWS THE LAND SPECIFICALLY CLAIMED AND ITS BOUNDARIES WHERE THE IDENTITY OF THE DISPUTED LAND IS IN ISSUE
In the law of real property there is no doubt that difficulty of establishing the identity of the land in dispute has always been the bane of many other wise successful claims. Where as in this case, the Defendants denied the existence of such a land in favour of the Appellants it beholved on the Appellants to have a survey plan that clearly shows the land specifically claimed and its boundaries. See EPI V. AIGBEDION (1973) NMLR page 31 at 35. If the land is a vacant land, a plan is most desirable to show the portion. See IBULUYA V. DIKIBO (1976) 1 ALL NLR page 396 AT 408″. On the assumption that the identity of a land is well known to the parties many a cases have been lost in courts. In OKE V EKE (1952) 12 SC page 218 at 219 the Supreme Court held as follows: “It appears that the Jideofor elders’ failure to define the boundaries did not arise from lack of evidence of the existence of a boundary but from the assumption that the parties knew the boundaries and the need to define the boundaries in their Judgment did not really arise. The need has arisen as a Plaintiff in action for declaration of title must succeed on the strength of his own case and not on the weakness of the defence. Evidence of the features that marked out that boundaries must be given to entitle the Plaintiff/appellant to the declaration they seek and enable the court ascertain the area of land in respect of which a declaration of title can be made.” From the state of the law therefore, the issue of identity of a land must always be in issue. It is only where parties are in accord as to identity of the disputed land that the issue of identity of the land can be said to have been settled. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
PLEADINGS: EFFECT OF EVIDENCE THAT IS AT VARIANCE WITH THE PLEADINGS
This evidence tendered i.e. Exhibit C1 is at variance with the pleadings. It goes to no issue therefore. In the circumstance, the averment as to that quantum of land claimed remained untestified to and unproved as such evidence at variance with pleaded facts must be disregarded. See UMEGOKWE V. OKADIGBO (1973) 4 SC 113, OKAGBUE & ORS. V. ROMAINE (1982) NSCC 130 at 137; ADENUGA V. L.T.C. (1950) 13 WACA 125 at 126. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
Justices
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. PASTOR SAMUEL KARIMU
2. WAHAB A. KARIMU
For themselves and the entire Descendants of Karimu Igbaro village in AjahAppellant(s)
AND
1. LAGOS STATE GOVERNMENT
2. ATTORNEY-GENERAL OF LAGOS STATERespondent
MOHAMMED AMBI-USI DANJUMA, J.C.A.: (Delivering the Leading Judgment): The Appellants as Plaintiffs had by a writ of summons and statement of Defendants now Respondents herein as follows:-
1. A declaration that the expense of land situate behind Abraham Adesanya Estate at Karimu Igbaro Village via Ajiwe Village, via Ajah in Etiosa Local Government Area of Lagos State more particularly described in the perimeter survey, pleaded in paragraph 12, measuring approximately 5.093 hectres belongs to the Plaintiffs.
2. An order restoring possession of the Plaintiffs’ land described in paragraph I above compulsorily acquired by the Defendants without compensation back to the Plaintiffs or alternatively an order compelling the Defendants to allocate an alternative and suitable land of the same size to the plaintiffs in lie of their land that was compulsorily acquired without compensation. (See pages 3 – 4 of the Record).”
By the second Amended statement of Defence dated 1st of March 2006 (pages 126 – 128 of the Record), the Respondents as Defendants contended that the Appellants’ land was validly acquired and that at the time of acquisition the Karimu Agbaro Village was not in existence and that the excision made to Ajah village covered the Appellants as well and that the Appellants’ case be dismissed. The facts as averred in the statement of claim (pages 3 – 4 of the record) are as follows:
The progenitor of the Plaintiffs, Karimu Igbaro and his brother, Ajiwe igbaro migrated from Ile-Ife to Lagos, sometime around the 17th Century. The duo later moved from Lagos Island to Ajah where they met Fakorede Alagba, the head of Egungun (masquerade) cult who introduced them to Chief Ogunsemo, the head of the first ruling house before the Ojupon ruling house. That the ‘Iya’ oracle directed the two brothers to the present day location, Karimu Igbaro and Ajiwe villages respectively. That the Respondents acquired all the lands within Eti-Osa including that of the Appellants. The Respondents used part of the Appellants’ land for Abraham Adesanya Housing Estate while they refused to excise the remaining 5.093 hectres despite repeated demands. In their Defence, the Respondents allege that Karimu Igbaro village was not in existence at the time of revocation. They further alleged that the Notice of revocation served on some traditional rulers within Eti-Osa Local Government Area is binding on the Appellants.
The Respondents further contended that the excision granted to Ajah village covers the Appellants’ land as the Appellants’ land is within Ajah community. They urged the court to dismiss the Appellants’ claim. In his judgment delivered on the 8th November 2006, (see pages 213 – 223 of the record), both claims were dismissed for want of proof.
Being dissatisfied with the judgment of the lower court, the Appellants by Notice of Appeal dated 19th January, 2007, appealed to this court upon 5 grounds of Appeal. (See pages 225 – 228 of the record).
The Grounds of Appeal without their particulars are reproduced herein-under for ease of reference. They are as follows:-
“GROUND I
The learned trial Judge erred in law when he held at page 4 of the judgment that the identity of the land being claimed by the Appellants is in dispute.
GROUND II
The learned trial Judge erred in law when after holding that the perimeter survey, exhibit C3 is admissible under the survey law, Cap section 13, Laws of Lagos State, 2003, but nevertheless went further to say that same is not useful in establishing the identity of the land.
GROUND III
The learned trial Judge erred in law when he held that the Appellants did not offer a satisfactory proof of their traditional history connecting them to the land in dispute when there was no contrary evidence of traditional history adduced by the Respondents.
GROUND IV
The learned trial Judge erred in law when he held that the issue of service of Notice of acquisition argued by the Appellants’ counsel in his final address was not at any time in issue.
GROUND V
The learned trial Judge erred in law when he held that the Appellants’ claim is defeated by Exhibit D3 (the official Gazette Exhibit D3).
The decision culminating into this appeal was delivered on 8/11/06 while the appeal was entered on 9th July,2008 by way of departure from the Rules – of this court. The Appellants’ Brief of Argument was filed on 14/4/08 and within time.
On their part, the Respondents by their counsel B.O. Sanusi (Miss) by motion filed on 5/10/09 argued the said motion on extension of time to file the Respondents’ Brief of argument out of time, time having expired. The said application was granted and the Brief was deemed filed and served on 19/10/09.
In their said Brief of Argument the Appellants formulated 3 issues for determination to wit:
1. Whether the identity of the land claimed by the Appellant was at any time in issue before the lower court.
2. Whether the Appellants offered a satisfactory traditional history connecting them to the land in dispute.
3. Whether the Respondents complied with the statutory provisions of the Land use Act (section 44) requiring personal service of Notice of Revocation of right of occupancy on the Appellants.
The Respondents on their part, by their Brief of Argument as settled by B.O. Sanusi, (Miss), formulated 2 issues for determination. The issues therein formulated are as follows:
1. Whether the Appellants/Claimants via their pleading as contained in their statement of claim and evidence led at the trial positively identified the exact boundary, dimension and location of the land in dispute.
2. Whether the land in dispute was validly acquired.
Having read the record of appeal and in particular the claims of the Appellants at the trial and the defence thereto including the Judgment and Grounds of appeal, I am inclined to think that the 2 issues formulated by the Respondents are more germane in the treatment of this appeal as they encapsulate all the issues raised by the Appellants. It is apparent that issues Nos. 1 and 2 of the Appellants can be taken together and relate to or are tied to issue No. 1 of the Respondents. Issue 2 of the Appellants can conveniently by treated under the wider issue No.2 of the Respondents. I shall therefore treat them as such in the interest of Justice.
At the hearing, being the 14th April, 2011, the learned counsel to the Appellants Gbenga Ojekunle, Esq. adopted the Appellant’s Brief of argument reminding the court that 3 issues have been raised therein for determination and that issue No. 1 is tied to Grounds 1 and 2., issue No.2 is distilled from Ground 3 while issue No. 3 is said to flow from Grounds 4 and 5. Learned counsel urged that the appeal be allowed and the reliefs as clamed at the trial High Court be entered for the Appellants herein. The Respondents on their part, by their learned counsel, Mrs. K.O. Taiwo adopted their Brief of argument and urged that the appeal be dismissed and the Judgment and order of the trial court be affirmed in the interest of justice.
TREATMENIT OF THE ISSUES
1. ISSUE NO. 1:
The Appellants’ argument on this issue are contained at pages 3 – 5 of their Brief of argument.
Arguing issue No. 1, learned counsel for the Appellant in their own issue No. 1, submitted that the identity of the land claimed by the Appellant was not at any time in issue. Referring to paragraph 4 of the statement of claim at the trial, counsel argued that it was averred therein that part of the land being claimed was acquired for the construction of Abraham Adesanya Housing Estate.
That by paragraph 15(1) of the said statement of claim, Appellants had made it categorically clear that what is being claimed is the remaining 5.093 hectares, behind Abraham Housing Estate at Karimu Igbaro village, via Ajah in Etiosa Local Government Area of Lagos State, that by paragraph 20 of the 2nd Amended Statement of Defence (page 128 of the record), the Respondents also pleaded that the 1st Appellant zoned part of the land in dispute for the construction of Abraham Adesanya Housing Estate.
That the above assertion was supported by the evidence of the 1st Appellant in paragraph 7 of his statement on oath (page 10 of the record). That this was also confirmed in paragraph 21 of the amended statement on oath of the Respondents’ witness Siraju Oluwagbega Ogungbo (page 133 of the record). The 1st Appellant also repeated the same thing under cross examination at page 167 of the record.
In essence, that the parties are agreed as to the exact location of the land in dispute. Learned counsel argued that the trial Judge was therefore wrong when he held as follows:
“where a claimant fails to plead and establish the identity of the land to which his claim of ownership of title relates, whatever evidence, whether oral or documentary he produces at the trial and however cogent and credible the evidence might appear, it cannot in law, ground a declaration of title in his favour”.
It was also argued that the Judge was also in error when he held that the perimeter survey plan – Exhibit ‘C’ did not establish the identity of the land claimed as the Appellant had pleaded at paragraph 4 of the statement of claim that the Appellants got connected when the Respondents acquired their land to build Jubilee estate, now Abraham Adesanya Estate. That the identity of the land was not in issue at all – as the perimeter survey Exhibit ‘C’ had aptly described Karimu Igbaro village as including Jubilee now Abraham Adesanya Estate and the remainder, 5.093 hectres with its boundaries and abuttals. That Exhibit ‘C’ was rightly admitted as a survey diagram or sketch to show the length, edges location, distance and size of the land and not in any way to prove the identity of the land, since the identity was not at any time in issue.
Finally on this issue, learned counsel argued that since the identity was not in dispute there was no need for any proof by a survey plan.
On his issue No. 2 which, as I had said earlier is also subsumed in the issue No. 1 of the Respondents which I have adopted. It was argued that reasonable and sufficient evidence of traditional history connecting the Appellants to Karimu Igbaro village and the land being claimed had been shown. Paragraphs 1, 4, 5, 6, 7 and 8 of the statement of claim at page 3 of the record referred. That the evidence of traditional history was not contradicted or in conflict with any other, referring to the case of OKWARANOBI V. MBADUGHA @ 481 paragraphs C – D, learned counsel relied on the dictum of Uwaifo, J.C.A., therein where he said:
“That for a trial court to hold that evidence of traditional history is inconclusive, there must be apparently plausible histories, given by each party to the case, standing side by side, which will make it altruistic for the court to accept one in preference for the other. That it will be wrong for a trial court to hold that evidence of traditional history is inconclusive where it is unchallenged”.
That the evidence of traditional history adduced by the Appellants, was uncontradicted, and not in conflict with any other rival history. That the evidence adduced was cogent and sufficient to support the case for declaration of title.
In response, the Respondents argued as in their issue No.1 (adopted by this court) that by the averments in the Claimants/Appellants statement of claim, paragraphs 9, 10, 11 and 12 the onus was on the Appellants to prove the exact location, boundary and dimension of the disputed parcel of land that is 5.093 said to remain by the Appellants/Claimants after the construction of Abraham Adesanya Estate at Lekki, Lagos. That Exhibit C3 (the sketch) tendered by the Appellants/Claimants was to show the entire Karimu Igbaro village and not specifically the exact location/boundary of the area of land said to remain after the construction of Abraham Adesanya Estate. That there was no evidence adduced at the trial to connect the exact area being claimed via their statement of claim positively to the land in this present suit. That by the averments at paragraph 3 of the statement of claim and Defendants/Respondents statement of defence, especially paragraphs 3, 4, 5, 6, 9, 10, 12, 13, 14, and 15 the burden of proving the “correct position” of the land in dispute lay squarely on the Appellants and was not so proved. The case of ADOMBA V. ODIESE (1990) 1 NWLR (Pt. 125) sc 165 at 180 paragraph C wherein Nnaemeka Agu JSC stated thus:
“what is required of a Plaintiff in order to discharge the onus incumbent on him with respect to the quantum and quantity of land in dispute is to prove the boundary with certainty unless it is well known to the parties. What is necessary in such case is the establishment of each feature and boundaries which a surveyor can pick up on the ground and produce a plan therein” was referred to.
That paragraphs 3 and 12 of the Respondents’ amended statement of Defence at pages 91 – 93 of the record of proceedings (sic) (of Appeal) did not admit the location of the area of land in dispute, rather it refers to the whole area of land that was compulsorily acquired by the Lagos State Government by virtue of Exhibit D1 and D6, thus, the onus of discharging the burden of proving the exact location of the exact area of land being claimed by the Appellants/Claimants has not been discharged.
Counsel argued that the acid test is whether if a surveyor reading the record of proceedings can produce a plan showing accurately the land in dispute. That no evidence had been adduced by the Appellant such that a surveyor can produce a plan showing accurately the land in dispute.
That the land in dispute had not been proved with certainty. THOMPSON AROWOLO (2005) NWLR (Pt. 818) 163 SC at 205 paragraph E – H was referred to.
The Respondents’ learned. counsel as if to block off the possible loophole and make assurance double sure that the Judgment appealed from be not faulted on the ground that Defendants did not positively and specifically raise the defence of the uncertainty of the land claimed and yet it was used as a basis for the Judgment against the Appellants, argued further that even if the court had suo motu, raised the issue of identity of the land in dispute and parties not given an opportunity of being heard in respect thereto should not be set aside as no miscarriage of justice had been occasioned. That the trial court having considered the substantive claims of the Appellant arrived at a decision that would not have been otherwise. OSHIOMOLE V. F.G.N. (2007) 1 NWLR (Pt 1035) CA at 74 paragraph C – E AJAO V. ASHIRU (1973) NSCC 525 11 SC.
The starting point for the treatment of this issue would be to refer to the pleadings of the parties, as facts being the arrow head and fountain of the law, will predicate the issue at stake and highlight same much more clearly.
By paragraphs 4, 8, 12 and 15 of the statement of claim the Plaintiffs/Appellants averred as follows:-
“4. The plaintiffs and the Defendants got connected when the Defendants acquired the vast hectres of land belonging to the plaintiffs for the construction of Jubilee Estate now known as Abraham Adesanya Estate.
“8. The Defendants compulsorily acquired part of Karimu Igbaro land for the construction of Abraham Adesanya Estate without payment of compensation”‘
“- The plaintiffs solicitors wrote a letter dated December 8th 2000 wherein they decided to waive their rights to compensation in respect of the land on which Abraham Adesanya Estate was built and for the release of the reminder measuring 5.093 hectres to them unconditionally. The said letter shall be relied upon at the trial of this case”.
12. The plaintiffs aver that rather than release their land, the Defendant took over the remaining and measuring 5.093 hectres more particularly described in the perimeter survey which shall be relied upon at the trial of this case’ without payment of compensation”‘
15. Whereof the Plaintiffs claim against the Defendants
(1) A declaration that the expanse of land situate behind Abraham Adesanya Estate af Karimu Igbaro village via Ajiwe village, via Aja in Etiosa Local Government Area of Lagos State more particularly described in the perimeter survey pleaded in paragraph 12, measuring approximately 5.093 hectres belongs to the Plaintiffs.
(2) An order restoring possession of the Plaintiffs’ land described in paragraph 1 above compulsorily acquired by the Defendant without compensation back to the Plaintiffs or alternatively an order compelling the Defendants to allocate an alternative and suitable land of the same size to the Plaintiffs in lieu of their land that was compulsorily acquired without compensation.”
The Defendants, in joining issues with the Plaintiffs admitted statement of claim and denied paragraphs 4, 5, 6, 7 , 9, 10, 11, 12, and 13 thereof. It was averred further in Defence as follows:
“3 – The Defendants aver that the land which is the subject matter of this suit forms a portion of a larger area of land that was compulsorily acquired by the Lagos State Government by virtue of legal Notice No. 1 published in the Lagos State official Gazetter No. 8 Vol. 14 on 19th February, 1981 and Notice No. 14 of 26th February, 1981. The said Notices shall be relied upon at the trial of this suit’
4. That subsequent to a spate of judgments to the effect that Rights of Occupancy in the acquired were not validly revoked, the Lagos State Government in 1993 validly revoked all the rights of occupancy in the entire land acquired by Notices No. 510 and 14.
5. That this revocation which was for overriding public purposes, was effected by virtue of Notice No. 16 published in Lagos State official Gazette No . 20 Vol. 26 of 13th May, 1993. The said Notice No. 36 shall be relied upon at the trial of this suit.
6. That as at .when the revocation of 1993 was effected Karimu Igbaro village was not in existence as it was not listed as an existing village in the list submitted by the Traditional Head of the large area of land whose rights of occupancy were revoked.
7. That under the Lagos State village Excision programmes, Lands were excised for the use of villages known and in existence as at the time of the revocation of 1993.
8. That due to the fact that Karimu Igbaro village was not in existence as at the time Notice No. 36 was published, the Plaintiffs had been unable to claim compensation.
9. That the Defendants admit paragraphs of Plaintiff’s statement of claim only to the extent that the supposed Karimu Igbaro village falls within the area of land covered by the 1993 revocation, and states further that payment of compensation could not be made to the Plaintiffs because their village was not in existence at the time of revocation.
10. In further Reply to paragraph 8 of the Plaintiffs’ Statement of Claim, the Defendants aver that even if Karimu Igbaro village had been in existence at the time of the 1993 revocation (which fact is denied) the Plaintiffs had failed to apply for compensation within the time stipulated by the said Notice No. 36
11. That the Lagos State Government had zoned the portion of land which is the subject of this suit for Housing.
12. Whereof the Defendants, contend that this action is misconceived, malicious, frivolous, an abuse by court process and should be dismissed with substantial costs”
From the averments of both sides reproduced it is very clear that the identity of the disputed land being claimed was in issue.
Whilst the Appellants as Plaintiffs refers to the land as a 5.093 hectares of land inset Karimu Igbaro village and particularly behind Abraham Adesanya Housing Estate, and tendered and relied on Exhibit C3 as the perimeter map of Igbaro village within which the land claimed is situate, the Defendants completely and unequivocally denies the existence of Karimu Igbaro village and hence any portion of land belonging to the Claimants/Appellants within the period in contention. Secondly, the Defendants/Respondents claimed an acquisition of the entirety of the area including Abraham Adesanya Housing Estate for Housing purpose and the payment of compensation to occupiers thereof.
The state of pleadings was such that it behoved the Plaintiffs/Appellants to plead further the existence of the said village. The specific occupation of a designated area of the dimension claimed and to show their entitlement to compensation as claimed.
The Respondents amended statement of Defence averred materially that the Appellants were part of Ajiwe Igbaro family and had been so compensated more so they were part of Ajah Community which had had double excision benefits as compensation and a negotiated settlements entered as Judgments in their favour.
In an action for declaration of title to land the onus lies on the claimant to prove his case. He cannot rely on the weakness of the Defendants’ case. The burden of proof never shifts and the case of the Defendant never comes for consideration until the Plaintiff has established his case. See AROMIRE V. AWOYEMI (1972) 1 ALL NLR page 101 at 113 wherein the Supreme Court held:
“on the strength of the authorities, the Plaintiffs title must first be considered and decided upon before a consideration of the title of the Defendant arises. The law is that any weakness in the case of the Defendant cannot be of any assistance to the Plaintiffs. See UMEOJIAKO V. EZENAMUO (1990) NWLR Pt. 126 page. 253 at 267.
A Plaintiff in an action for declaration of title to land who relies on traditional title as in this case on appeal must lead credible evidence to establish the identity of the land, its origin and its devolution from its predecessor in title down to himself. See ELIAS V. OMOBARE (1982) 5 SC page 25 at 57 – 58.
In the law of real property there is no doubt that difficulty of establishing the identity of the land in dispute has always been the bane of many other wise successful claims. Where as in this case, the Defendants denied the existence of such a land in favour of the Appellants it beholved on the Appellants to have a survey plan that clearly shows the land specifically claimed and its boundaries. See EPI V. AIGBEDION (1973) NMLR page 31 at 35. If the land is a vacant land, a plan is most desirable to show the portion. See IBULUYA V. DIKIBO (1976) 1 ALL NLR page 396 AT 408″.
On the assumption that the identity of a land is well known to the parties many a cases have been lost in courts.
In OKE V EKE (1952) 12 SC page 218 at 219 the Supreme Court held as follows:
“It appears that the Jideofor elders’ failure to define the boundaries did not arise from lack of evidence of the existence of a boundary but from the assumption that the parties knew the boundaries and the need to define the boundaries in their Judgment did not really arise.
The need has arisen as a Plaintiff in action for declaration of title must succeed on the strength of his own case and not on the weakness of the defence. Evidence of the features that marked out that boundaries must be given to entitle the Plaintiff/appellant to the declaration they seek and enable the court ascertain the area of land in respect of which a declaration of title can be made.”
From the state of the law therefore, the issue of identity of a land must always be in issue. It is only where parties are in accord as to identity of the disputed land that the issue of identity of the land can be said to have been settled.
The Respondents as Defendants having denied the existence of any such land claimed by the Appellants the identity of same had been put in issue, necessitating the discharge of the onus of its proof by the Appellant herein. I hold therefore that the identity of the land claimed was in issue.
The Appellants as Plaintiffs averred at paragraphs 12 of their statement of claim thus:
“12 -The Plaintiffs aver that rather than release their said land, the Defendants took over the remaining land measuring 5.093 hectares more particularly described in the perimeter survey which shall be relied upon at the trial of this case, without payment of compensation.”
What was the evidence in respect of this area of land claimed as laid at the trial?
Pastor Samuel Karimu whose statement on oath as contained at page 10 of the record of appeal had this to say at paragraph 8 thereof:
“Due to the fact that the portion acquired for housing estate was acquired for public interest the Karimu Igbaro family decided to relinquish their claim on the said portion while we decided to lay claim on the remainder of 5.093 hectres and to ask for excision of same”.
Aside from the mere mention of the dimension of the land claimed, this witness did not in any way describe the said land claimed let alone its location. The identity was not testified to. What is more, by Exhibit C1, which is the letter of 8/12/2000 which was pleaded and relied upon by paragraph 1l of the statement of claim, it was pleaded thus:
“11. The Plaintiffs solicitors wrote a letter dated December 8th 2000, wherein they decided to waive their right to compensation in respect of the land on which Abraham Adesanya Estate was built and for the release of the remainder measuring 5.093 hectres to them unconditionally. The said letter shall be relied upon at the trial of this case.”
The said letter tendered as Exhibit C1 refers to the remainder of the and claimed as being approximately 8.237 hectares.
That portion relevant thereof provides as follows:
“However, our clients have asked us to demand from the Authorities the excision of the remaining part of their land measuring approximately 8.237 hectares as a gesture for the concession already made by our clients to the Government.” The said Exhibit C1 is at variance with the claim as far as the dimension or quantum of the land is concerned.
It is a purported evidence in proof of the claim, but has materially deported there from and has not therefore established the claim even as to the land in dispute. To show its full reliance on the 8.237 hectares sought, the Appellants had annexed to the letter Exhibit C1, a plan showing the area they claimed and as annexture C1 with an Area of 8.237 hectares.
This evidence tendered i.e. Exhibit C1 is at variance with the pleadings. It goes to no issue therefore. In the circumstance, the averment as to that quantum of land claimed remained untestified to and unproved as such evidence at variance with pleaded facts must be disregarded. See UMEGOKWE V. OKADIGBO (1973) 4 SC 113, OKAGBUE & ORS. V. ROMAINE (1982) NSCC 130 at 137; ADENUGA V. L.T.C. (1950) 13 WACA 125 at 126. The Respondents’ counsel had submitted in their brief of argument that the exact location, boundary and dimension of the disputed land was not proved.
Exhibit C3 (the sketched map) tendered in evidence by the Appellants/Plaintiffs showed the entirety of Karimu Igbaro village and not the land claimed. Exhibit C3 therefore did not prove what the Appellant set out to claim. The averments in paragraph 3, of the statement of claim vis-a-vis paragraphs 3, 4, 5, 6, 9, 10, 12, 13, 14, 15 which placed the burden of proof of the identity of the land on the Appellants was not discharged. Sad enough, the evidence at the trial tended to prove facts different from the pleadings and must be discountenanced. See WAGHORU V. GEORGE WIMPEY & CO. LTD. (1969) 1 WLR 1764.
On their part, the Defendants/Respondents had pleaded at paragraphs 3 and 12 of their Amended statement of defence that the whole area of land covered by their exhibits D1 and D6 had been acquired by the Lagos State Government.
The Defendants/Respondents led uncontroverted evidence in this respect through the evidence of their DW1 and DW2.
DW – one Suraj Oluwagbenga Ojumo a land officer at the Land Bureau in the Secretariat at Alausa who testified at page 170 – 177 of the Record of Appeal tendered Gazetted Notices of acquisition of land by the Respondents as Exhibits D1, D2, D3, D4, D5, D6 and D7. He ended his examination in chief at page 172 in the following words “I want the court to throw out the case of the Claimants.” In cross examination, DW1 reaffirmed paragraphs 9 of the statement of defence to the effect that Karimu Igbaro village falls within the area that had been acquired in 1993 and was not in existence then as a village and could not therefore have constituted a basis for an entitlement to the Appellants for compensation in respect of any claimed portion thereto. The identity and the existence of the land claimed was surely in the circumstance in issue and has not been established in the absence of the rebuttal of the total denial of the existence of Karimu Igbaro village as at the date of acquisition. To further show the uncertainty of the land claimed, the Appellants as Plaintiffs had in paragraph 8 of their Statement of claim averred to the effect that the Defendants compulsorily acquired part of Karimu Igbaro Land for the construction of Abraham Adesanya Estate without payment of compensation.
It is instructive to note that “Karimu Igbaro land” has not been defined and identified. At least it has not been shown to be the same thing or place with Karimu Igbaro village within which the Appellants claimed the disputed land was situate. The Appellant had by the evidence of PW1 shown that the land claimed was the remainder of its land behind the Abratram Adesanya Estate in Karimu Igbaro village.
Could Karimu Igbaro village be the same place with the subject land described as the Karimu Igbaro land in respect of which the Defendants/Appellants acquired a portion for the Abraham Adesanya Estate? There is a conflict or uncertainty here as to where the land is located. There is a conflict or uncertainty here as to where the land is located. It is not for me to speculate in the absence of evidence in that respect.
As Niki Tobi JSC stated in ARCHIBONG V. ITA (2004) 117 LRCN 3801 at 3830 paragraph JJ –
“Could it be that the plan is in respect of Danish Nigeria Agricultural Company as Estate and the two parties in this appeal, that is IFIONG and IWANG? It is too dangerous for this court to speculate in the absence of evidence. After all, a court of law cannot speculate or conjecture. See OGUNYE V. THE STATE (1999) 68 LRCN 699. OKONJI V. NJOKANMA (1999) 73 LRCN 3632; ONYIRIMBA V. STATE (2002) 11 NWLR (Pt 777) 83; ACB Plc V. EMOSTRADE Ltd (2002) 1 NWLR (Pt 770) 501. Where a document is speculative in content the court is entitled not to rely on it to make an award or order. See OLALOMI INDUSTRIES LTD V. NDIC (2002) FWLR (Pt 131) 1984.”
That the plan Exhibit C3 is that of Karimu Igbaro village, it would appear to me that in the absence of a plan clearly describing and delineating the Appellants’ land pleaded in paragraph 8 of their statement of claim, the specific evidence of identity of their said land encompassing the said village was lacking. In the same token the specific portion claimed in this proceedings cannot be ascertained without specific evidence of identification led. The law is trite on the desirability of the specific certainty or proof of the identity of a piece of land claimed in an action for a declaration of title and injunction. Where there is doubt, a plan ought be filed. There was no plan filed in respect of the pleaded land of the Appellants to show that it was the same as Karimu Igbaro village that had a plan (Exhibit 3) and so as to show the location of the claimed portion thereof.
It is trite that where a land in dispute is not identifiable by one of the parties and therefore not identified, a survey plan is a desideratum. See ARCHIBONG & ORS. V. ITA supra at 3834, paragraph U – per Niki Tobi.
The Respondents have not been able to identify or agree with the Appellants on the identity of the pleaded land of the Appellants. The Respondents is said to have admitted the identity of the said land in dispute. I have searched the pleadings, but found no such admission. I instead find a total denial of the ownership of any land by the Appellants. The allusion that even if the Appellants had any land, it must have been acquired for public purpose by the Respondents is not, in my view, an admission as to the existence of a land belonging to the Appellants, let alone its identity. That Karimu Igbaro village, (even if it exists now which Respondents denied) was part of a larger portion of land comprising some other named villages that had been acquired by the Defendants/Respondents did not amount to an admission of the identity of the land claimed as submitted.
Even if it were an admission, it must relate to the life issues in the matter. See ARCHIBONG & ORS. V. ITA (supra) at page 3833 where Niki Tobi, JSC stated at paragraphs P – EE thus:
“what is the admission, the Court of Appeal is relying upon? It it the one that the Appellants were about to receive payment from the Danish company. If so, (and it is so) from the above statement of the court, how does that help the Respondents in this appeal? An admission in order to be useful to the adverse party, must relate or affect the life issues in the matter”
The life issue in this appeal is the identity of “part of Karimu Igbaro land measuring 5.093 hectares constituting the remainder of the land of the Appellants” as pleaded in paragraph 12 of the statement of claim and unproven by the perimeter survey plan (Exhibit C3) tendered.
This “life issue” was not pleaded with certainty nor proved – PW1 in his evidence as per page 10 – 11 being proof of his evidence never testified to the demarcation of the land its specific location or boundary features, such that a surveyor could produce the map thereof or such that an order of a court of law declaring title or injunctive relief as claimed could be so tied with specificity. The perimeter survey plan Exhibit C3 and letters A – A2 did not help matters as they made no descriptions of the land and were also not in support of any pleaded facts; and the pleaded facts and all the exhibits did not individually prove the claim. The learned trial Judge was, therefore perfectly right in this respect when she stated at page 216 of the Record (The Judgment) thus “The first claim of Claimants is for declaration of ownership of the land in dispute. The starting point for the consideration of a claim for declaration of ownership of land is, and must be the identity of the land in dispute. In ADONE V. IKEBUDE (2001) 14 NWLR (Pt.33) 385, the Supreme Court stated that the “land in dispute” in any claim for declaration of title to land is none other than that put in issue and claimed by the Plaintiff and in respect of which the parties join issues. Where a Claimant fails to plead and establish the identity of the land to which his claim of ownership or title relates, whatever evidence, whether oral or documentary he produces at the trial and however cogent credible the evidence might appear, it cannot, in law ground a declaration of title in his favour. See JINADU V. ESUROMBI-ARO (2005) 14 NWLR (Pt 944) 142, ANSA V. ISHIE (2005) 15 NWLR (Pt.948) 210 and OTANMI V. YOUDUBAGHA (2006) 2 NWLR (Pt 964) 3137……
The identity of the land is in issue (where the Defendant raised, it in his statement of defence. See ALABI V. OLOYA” I agree with the trial court when it considered the Exhibit C3 relied upon in proof of identity as a worthless document.
I have, myself, examined the said Exhibit C3 – the perimeter survey plan pleaded and relied upon in proof of the land claimed. It has no evidential value and it is unsigned, undated and its origin as a public document in proof of the identity of a land or a registerable instrument under the survey law, Cap S.13 Laws of Lagos State 2003 or the Registrable Instruments (lands instruments preparation) law of Lagos State had not been established. It is a document of undisclosed source and relating to an unknown destination. The trial Judge was right in holding as he did at page 217 – 218 thus “Exhibit C3 cannot thus constitute credible evidence in the circumstances, on the identity of the 5.093 hectres of land to which the claims of the Claimants relate in this suit. The document is weightless and of no use to the case of the Claimants. The Claimants failed to lead any credible evidence on the identity of the land in dispute in this case.”
The issue of identity of land claimed being one of the issues framed for determination of this court, I should at this point rest same as it has been decided by the conclusion aforesaid which I adopt as mine. The issue has been so meticulously appreciated by the trial Judge and correctly resolved.
For its pivotal relevance in the resolution of this appeal, I shall endeavour to emphasize that this burden placed upon a Claimant in an action for a declaration of title or claim of ownership is a concomitant effect of the provisions of the Evidence Act which provides and places the burden of proof of facts asserted on a claimant. See section 137 and 138 of the Evidence Act, 1990 LFN, 2004. See ELIAS V. DISU (1962), ALL NLR 214, ABIODUN V. ADEHIN (1962) 1 ALL NLR 550, OKECHUKWU & SONS V. NDAH (1967) NMLR 368, FREPONG II V. BREMPONA II (1952) 14 WACA 13. Where a claimant pleads title, he has the consequential burden of proving title to that piece of land claimed. See G.B. OLLIVANT LTD. V. KERSAH (1941) 7 WACA 188; OLADEINDE V. ODUWALE (1963) WNLR 41, MOGAJI V. ODOFIN (1975) 4 SC 91, BELLO V EWEKE (1951) 1 SC 101 and ONOBRUCHERE V. ESEGINE (1956) 1 NWLR (Pt 19) 799.
The burden of proof of identity of the land is discharged by specific and unequivocal evidence as to the boundary of the land in dispute. See ODESANYA V. EWEDEMI (1962) ALL NLR 320. The burden of proving the specific identity of the land does not shift. It is totally on the Plaintiff. In the case on appeal, the evidence in respect thereto was such that it could not be ascertained by a reading of the evidence led. The plan Exhibit C3, aside from being spurious and of uncertain origin commands no weight and in effect suffers the fate of non existence! It is a document without life. The court cannot breath life and purport or value into it as that is the duty of the Claimants. This, they had wholly failed to do at the trial. What is more the de jure nonexistent Exhibit C3 is not after all a document of title. The proof of title and/or proof of the identity of the land claimed jointly and generally suffer the fate envisaged by section 149(1)(d) of the Evidence Act. 1990 LFN 2004, that is to say if evidence as to their existence had been led and tendered the evidence would have been unfavourable to the Claimants hence the withholding thereof. See AREMU V ADETORO (2008) 159 LRCN 171 at 188 paragraph 2 per Tobi JSC.
It is not out of place to relate to the reasoning of His Lordship Hon. Justice H.A.O. Abiru wherein she stated at page 10 of her Judgment thus –
“It is pertinent that the nemesis of the claims in this suit is inadequate facts; the pleadings did not contained (sic) sufficient facts to grounds the claims. It is elementary that facts are the fountainhead of law. They are the inimitable stories surrounding a case on which the outcome of most, if not all cases depend.”
Speaking on the importance of facts, Pats Acholonu (JSC) (now of blessed memory) stated in OBASI BROTHERS MERCHANT CO. LTD. V. MERCHANT BANK OF AFRICA, Securities Ltd (2005) 9 NWLR (Pt 929) 117 at 133 – 134 H – C thus:
“It is always tempting for lawyers to concentrate on the law and relegating the facts which give rise to the law to the background. The tool or magic that should be in the possession of a seasoned advocate is the mastery of the facts of the case. I have always stated that knowledge of the facts of the case must be assiduously and painstakingly pursued. The facts must then be subjected to scrupulous analysis, and serious efforts made by the counsel to know how to elevate them to the pedestal that would convince the court to find in favour of the party seeking the court’s intervention. I fail to see how very sparse or impoverished stories or crass ignorance of essential facts by the Appellant in this case could readily pursuade a count to find in its favour. The passion for facts must be so all embracing that it should be in the mind of a counsel to a Plaintiff and reach a crescendo of addition – metaphorically, speaking”.
Similarly, in INTERNATIONAL MESSENGERS NIGERIA LTD. V. NWACHUKWU (2004) 13 NWLR (Pt 891) 543, the Supreme Court put the point thus at page 570 H:-
“It is essential to emphasis that while access to court is an undeniable right of a citizen in a free society, it is the duty of a counsel to examine all facts made available to him painstakingly to avoid a ride to the court that produces failure and disillusionments. A thorough grasp of the facts of a case presented by one with a mastery of forensic advocacy is important. It is the presumption that a Judge seized with a case knows the law. There ire no basis for a belief that he knows the facts until they are decently and clearly marshaled out to him.”
Perhaps with a better articulation of the facts in this matter and an improved understanding of the principles of land litigation counsel to the claimants might have presented a “convincing case.” and to say that I agree entirely with that reasoning as it is the non articulation of the facts relevant that has defeated or knocked the feet off the claim as relating to anything appertaining the land claimed.
This takes me to the pivotal position of pleadings in litigation. It is the spine and bone upon which the building or case is built and oscillates.
If there are no pleadings, evidence led is useless; so also if there is pleadings but no evidence in proof it is also of no value. In this respect, it was held in G.U.O. OKEKE & SONS LTD. v. USIFOR (2008) 1 ALL FWL Report page 280, as follows:
“parties are bound by their pleadings and such pleadings that are not backed by evidence in their proof go to no issue, as does evidence led without necessary pleadings, courts have a duty to decide cases on the basis of issues joined in the pleadings. Appellants as Claimants pleaded deficient facts as to the land and proved none, therefore”.
It is in this respect that the address of the learned counsel for the Appellants, as erudite and flowery as it is, or correct as it may be on the principles of law addressed therein, cannot be elevated to the place of pleadings and evidence which were not forthcoming from the witness called either viva voce or by his statement on oath nor by any precise, relevant and cogently reliable documentary evidence.
See CITIZENS INTERNATIONAL BANK LTD. V. SCOA LTD. (2006) 18 NWLR Pt 1011 page 332 at 353 paragraph A – B.
The second and last issue is on the validity or otherwise of the acquisition of land in dispute. With the resolution of issue No. 1 relating – the identity of the land claimed, the second issue as to whether the land in dispute had been compulsorily acquired and the issue of nonpayment of compensation and an allocation of an alternative land has become a non issue. It is now an academic and mute point. This is because if there is no identifiable land as claimed then which land of the Appellant was compulsorily acquired? Also in respect of what land could compensation have been sought to be paid or refused thereon?
In any case, the Respondents as Defendants at the trial court had pleaded that even if the land claimed existed, it must, have been a part of a larger land compulsorily acquired by her for the construction of Housing Estates ( a public purpose under the Land Use Act 1978 Laws of the Federation of Nigeria, 1990 and in respect of which ownership the trial court had found that the Appellants were not able to prove their claim for traditional title by inheritance from their progenitor – Karimu Igbaro. Relying on the Supreme Court decision, in the case of AKINSUROJU V JOSHUA (1991) 4 NWLR (Pt 187) 542,the trial Judge specifically held that the Appellants were unable to show how their progenitor inherited the said land and how the Karimu Igbaro Community had the land transmitted to it from the founder. That the Claimants/Appellants had not pleaded nor proved how the land they claimed was founded by their progenitor was transmitted to the present Karimu Igbaro village. It is, therefore, right as held by the trial court that the Appellants had not established their ownership of the land by traditional history in the absence pleadings or better still in the face of the scanty and void pleadings that disclose no traditional history of founding and a line of succession, let alone positive acts of exclusive possession over a long period of time, as required by law.
From the resolution of Issue No. 1 as in the above views held by me, the second issue is now of no moment. In any case, the Respondents had copiously pleaded and shown by the evidence of its witness DW1 ……… that it had acquired regularly large parcels of land upon which it developed Abraham Adesanya Housing Estate which was mentioned as an adjoining land to the land claimed by the Appellants.
Compensation was said to have been paid to occupants of such land including Ajah Community wherein the Defendant/Respondents asserted that the Appellants belonged; and that such compensation not claimed within the statutory period provided in the Government Gazettes or Notices issued by the Lagos State Government had effectively estopped any claim for compensation from any one or community, more so the Appellants who admittedly by their pleadings and evidence laid their claim of compensation beyond 10 years after the acquisition by the Respondent.
From the unchallenged testimony of DW – the Appellants witness, it is clear that it was proved that the Respondents had acted under section 44 – 45 of the Land Use Act 1978 LFN 2004 in acquiring in the public interest all the land so described in the Exhibits –
Which were tendered without any objection from the Appellants. The Evidence Act by its section 73(1) thereof requires that courts of law take judicial notice of all enactments, Rules, and Notices in the official gazettes of the Federal or State or Local Governments. It is in this respect that I take judicial Notice of those Gazettes containing legal Notice No. 36 of the Lagos State Government.
In UGOCHUKWU CCB (2000) 1 NIGERIAN LAND LAW CASES (INLLC) 361 at 384, Belgore JSC in his concurring Judgment had this to say:
“As for the contention that exhibit 3 is void, it is an untenable submission. The Evidence Act in section 73(1) thereof enjoins courts to take judicial notice of all enactments and Rules and Notices in the official gazettes Legal Notice No. 7 of 1979, Imo State is clear on its intendment in relation to section 45(1) of the Land Use Act. Consent in Exhibit 3 given by the Commissioner of Works and Housing is perfectly valid”
In MAKORI V. KAFINTA (1990) 7 NWLR (Pt 163) 411 at 119 it was held that a legal Notice that the entire land had been acquired by the government for public purpose without any further assurance would dispense with the necessity for any certificate of title especially now that all lands comprised in the territory of each state in the Federation have been vested in the military Government (now Civil Governor) by section of the Land Use Act, 1978; see also ATTORNEY GENERAL BENDEL STATE V. AIDEYAN.”
From the above brief discourse it is obvious that the Respondents had the plenitude of right of acquisition of land for public interest which it exercised in respect of land not shown to cover any owned by the Appellants; and who had not also established their right to compensation at the trial court as they did not prove the identity of their land allegedly acquired nor prove that they made any claim within the period of 21 days provided for in the Legal Notice. No. 36 contained in Gazette No. 20, Vol. 26 of 13th May, 1993 Exhibit D3) No. 36 in which I am enjoined by law to take judicial Notice of. No claim shall be made after 12 months of the publication of the Notice.
The Service of revocation Notice i.e. Exhibit D4 was proved by the tender thereof in proof of the compliance with the requirement of Notice to be served for claims and payment of compensation and/or allocation of suitable alternative land in lieu or in addition to compensation to be made. This fact, therefore, puts paid or sealed the duty of the Respondent in this respect leaving all aggrieved persons including the Appellants who proved no title and who could not demand or be served any notice of acquisition without any remedy in law. This aside, it is my obiter that even if Appellants had identified their land claimed, their claim would have nonetheless been fruitless and no relief to compensation or alternative land allocation would have availed them in the face of laches and prolonged indolence amounting to specific and general waiver of the right to any claim under the extant law (The Legal Notice No. 36 of Lagos State, 1993.)
This issue is also resolved in favour of the Respondents and against the Appellants. With the resolution of all the 2 issues, as done supra, this appeal deserves nothing but the consequential fate of an outright dismissal. I must say that this is an avoidable appeal, in respect of which a calm and dispassionate review of the trial court’s Judgment vis-a-vis the evidence led would have disclosed the futility of increasing the financial burden and physical strains on the Appellants herein. Be that as it may, I shall and do enter the inevitable order of dismissal of this appeal as same is bereft of any merit.
Consequentially the Judgment of the Lagos State High Court in Suit No. LD/2128/2003 delivered on 8th November, 2006 wherein Hon. A. Abiru, J. dismissed all the claims of the Appellants herein for want of merit and proof is accordingly affirmed by me. Parties are to bear their respective costs of this appeal as I shall make no order awarding any costs.
ADZIRA GANA MSHELIA, J.C.A: I had the opportunity of reading in advance the leading judgment of my learned brother Danjuma, J.C.A. I agree with the reasoning and conclusion arrived thereat. My learned brother had exhaustively considered all the issues distilled for determination by the parties in this appeal. I would only add few words of mine for the purpose of emphasis. As regards the first issue raised by the appellant, I agree with my learned brother that from the state of pleadings exchanged by parties the issue of identity of the land claimed was in issue. It is settled principle of law that when the identity of a land is in issue, the determination of the claim and respective rights of the parties can only be resolved upon the production of composite plans by the parties. See Emordi v. Kwentoh.(1996) 2 NWLR (Pt.433) 556 at 679 paragraph C.
The appellants did not file a plan in respect of the pleaded land to show that it was the same as Karimu Igbaro Village that had a plan (Exhibit 3) and so as to show the location of the claimed portion thereof. The Respondents have not been able to identify or agree with the Appellants on the identity of the land in dispute. Where a claimant fails to plead and establish the identity of the land to which his claims of ownership or title relates, whatever evidence, whether oral or documentary he produces at the trial and however cogent or credible the evidence might appear, it cannot in law ground a declaration of title in his favour. See: Iinadu v. Esuromhi – Aro (2005) 14 NWLR (Pt.944) t42. I agree with the learned trial judge that the claimants failed to lead any credible evidence on the identity of the land in dispute in this case.
In the light of the foregoing and the detailed reasoning and conclusion reached in the lead judgment I too dismiss the appeal as lacking in merit. I abide by consequential orders made therein, cost inclusive.
JOHN INYANG OKORO, J.C.A: I read in advance the lead Judgment of my learned brother, Danjuma, JCA just delivered and I agree that this appeal is lacking in merit and ought to be dismissed. The issues submitted for the determination of this appeal have been adequately addressed in the lead Judgment. I however make the following statement in support of the Judgment.
A Plaintiff in an action for declaration of title to land has amongst others, to lead credible evidence in proof of the identity of the said land except in cases where both parties are in agreement as to the identity of the disputed land. This is important so that parties and the court will not be misled as to which land is being disputed. Also, when making orders, the court should know with all certainty which land the order is being made. Where a Plaintiff leaves the issue of identity of the land to conjecture, it may be fatal to his case. See Oke v. Oke (1982) 12 SC 2L8, Ibuluya v. Dikibo (1976) 1 All NLR, 396.
In the instant case, the Appellants in their statement of claim referred to the land as being behind Abraham Adesanya Estate at Karimu Igbaro Village in Etiosa Local Government Area of Lagos State and measuring 5.093 hectares. However, in Exhibit C1, the letter written by the Appellant’s solicitor to the Respondents, the land is said to measure approximately 8.237 hectares. As it turns out, even the Appellant is unsure of the measurement of land he is asking for. This is much more so when the Respondents in their statement of defence have clearly denied the existence of Karimu Agbaro Village at the time the acquisition took place. This was, in my opinion, enough notice to the Appellants that they needed to do more to establish the boundaries and exact location of the disputed land. Where a plaintiff fails to plead and lead credible evidence to establish succinctly the identity of the land in dispute, his other evidence on other issues may well be hanging as there will be no land upon which to ground a declaration of title in his favour. See Ansa v. Ishie (2005) 15 N.W.L.R. (Pt.948) 210.
Based on the above and the fuller reasons contained in the lead Judgment of my learned brother, Danjuma, JCA, I agree that his appeal be dismissed. It is accordingly also dismissed by me, I abide by all consequential orders made in the lead Judgment. I also make no order as to costs.
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Appearances
Gbenga Ojekunle;
W.O. Olofin (Mrs.)For Appellant
AND
K.O. Taiwo (Mrs.) Assistant Director Civil Litigation, Ministry of Justice Lagos State;
A.R. Adeyemi (Miss) State Counsel for Respondents.For Respondent
