SAMSON UGWU & ORS v. CHIEF JOHN AGBOWO (2014)

SAMSON UGWU & ORS v. CHIEF JOHN AGBOWO

(2014)LCN/7130(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 15th day of April, 2014

CA/E/378/2009

RATIO

WHETHER THE CLAIMANT CAN GIVE ORAL EVIDENCE IN ESTABLISHING THE IDENTITY OF THE LAND IN DISPUTE

The onus is on a plaintiff in a land dispute to satisfy the court that the area of land to which his claim relates is certain. There are two ways by which a plaintiff can establish the identity of the land in dispute: (a) The plaintiff may give oral description of the land that any surveyor acting on such description can produce a plan of the land he claims; Kwadzo v. Noejei (1944) WACA 274 (b). The plaintiff may file a plan of the land showing all the feature of the land and showing clearly the boundaries: Udofia and Anor v. Afia & Ors. (1940) 6 WACA 216. See also Awote v. Owodunmi (N0. 2) (1987) 2 NWLR (Pt. 57) 367. Per ADZIRA GANA MSHELIA, J.C.A.

WHETHER THE PLAINTIFF HAS THE BURDEN TO SHOW THAT HIS PLAN CORRESPONDS WITH THE LAND HE IS CLAIMING

. A plaintiff in an action for declaration of title to land has the onus of showing satisfactorily that his plan corresponds with the land to which he lays claim. See Onwuchekwa v. Ezeogu (2002) 18 NWLR (Pt. 799) 333. It is also trite that the primary duty placed on a plaintiff who comes to court to claim a declaration of title to land is to show the court clearly, the area of land to which his claim relates so that the land can be identified with certainty. In other words, in an action for declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which the declaration can be attached. As it is, it cannot be said that the respondent had shown the exact extent and identity of the land he is claiming. Where a plaintiff claims a declaration of title to land and fails to give the exact extent and identity of the land he is claiming, his action should be dismissed. See Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 and Aribe v. Asantu (1980) 5-7 S.C. 78.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. SAMSON UGWU

2. NDUBUISI UGWU

3. OBODOCHI UGWU – Appellant(s)

AND

CHIEF JOHN AGBOWO – Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated 28th day of September 2004 the plaintiff now respondent commenced an action at High Court Enugu State against the defendant now appellant claiming the following:-

a) A Declaration that the plaintiff is the owner and exclusive holder of the deemed statutory rights of occupancy over and in respect of ALL THAT piece or parcel of land (with the features thereon) verged green and the dispute area thereto shown verged RED in the dispute survey Plan ND: HT/D019/2005 dated 6/9/05 hereto annexed.

b) N5,000,000.00 Damages for trespass and Perpetual injunction restraining the defendants by themselves, servants, workmen, Agents or privies from continuing acts of trespass into the said land in dispute of the plaintiff.

On 20-10-2005 plaintiff filed his 18 paragraph statement of claim. The defendants in response filed their 18 paragraph statement of defence on 31st day of March 2006. On 05-06-2006 the plaintiff amended his statement of claim. The defendants also amended their statement of defence on 18/9/06 and also counter-claim against the plaintiff as follows:-

(a) A declaration that they are entitled to the grant of Statutory right of Occupancy over a piece of land shown in plan No. BA/EN/LD01/2005.

(b) Perpetual injunction restraining the plaintiff, his agents, servants privies or whosoever acting on his instruction from having anything to do with the land without the consent of the defendants as beneficial owners.

After exchange of pleadings trial commenced. The plaintiff in proof of his case called three witnesses. The written statement of the witnesses and documents to be relied upon were duly adopted and admitted in court. On the part of the defendants, 1st defendant gave evidence as DW2 and called one witness (Mrs. Juliana Nnaji) as DW1. At the close of evidence, the trial court took address from the plaintiff. Neither the defendants nor their counsel showed further interest in the court proceedings, consequently, the defendant’s case was foreclosed and the plaintiff addressed the court on 4-6-09. See pages 117 to 120 of the record.) The defendants filed a motion seeking to vary court’s order foreclosing them as well as their address which the court obliged. On 15-06-2009, the court recalled the plaintiff to re-adopt his written address, and in a considered judgment the court delivered on 23rd July 2009, judgment was entered in favour of the plaintiff. (See page 150 of the record). Aggrieved with the said decision, the defendants lodged an appeal to this court vide their Notice and Grounds of Appeal dated 15th September, 2009 containing 4 (four) grounds of appeal.

Following the practice of this court, parties exchanged briefs of argument. Appellants’ brief of argument settled by C.C. Igwenagu Esq. was filed on 14-12-07, while the respondent’s brief of argument settled by D.O. Mba Esq. was filed on 19-01-2010. At the hearing of the appeal, Mr. Igwenagu Esq. and Mr. Okwesilli Esq. adopted their respective briefs of argument. Appellants’ counsel urged the court to allow the appeal while respondent’s counsel urged the court to dismiss the appeal.

The appellants’ brief of argument contained four issues for determination as follows:-

(a) Whether the learned trial court was right in giving judgment to the plaintiff/Respondent when he could not prove the title to the land in dispute.

(b) Whether the trial court was right in ordering perpetual injunction against the defendants/appellants when the same court had already made a finding that the defendants/appellants were in possession of the land in dispute.

(c) Whether the trial court was right in denying the defendants judgment simply because the defendants failed to tender the dispute plan filed by them as evidence.

(d) Whether the trial court should not have given judgment in favour of the defendants/appellants.

The respondents on the other hand distilled three issues from the grounds of appeal filed by the appellants. The issues are:-

(a) Whether in the circumstances of the case, the judgment of the lower court is against the weight of evidence.

(b) Whether the learned trial judge made a correct approach and assessment of evidence led by both parties in this case.

I have examined the issues formulated by parties. I find the issues raised by the appellants are apt as such I will adopt same in determining this appeal.

While arguing issue one learned counsel for the appellant commenced the argument by placing reliance on the classicus case of Idundun v. Okumagba (1976) 9-10 SC 31 wherein the Supreme Court enumerated five ways of proving title to land. It was submitted that in the case at hand the learned trial court made a finding that Plaintiff/Respondent relied in proof of his case three ways out of the five ways enumerated in Okumagba’s case. The three ways are (a) inheritance, (b) long possession and (c) production of document of title by way of Power of Attorney. Learned counsel contended that in respect of traditional history the learned trial judge made a finding that same was not established. See Alli v. Alesinloye (2000) NJ 264 at 300 – 305. It was argued that the respondent failed to satisfy the court that he was entitled to a declaration of title based on his traditional history. That respondent did go beyond his own father in tracing the devolution of title over the land to himself. That his evidence did not qualify as traditional history.

On the issue of possession the learned trial judge after considering the evidence of the plaintiff/respondent concluded that respondent has equally, failed to prove acts of possession.

The respondent also relied on his Power of Attorney donated to him by the community of the parties to this Suit. The learned trial judge in his judgment stated that the Power of Attorney came in when the case was pending and so did not make use of it. Learned counsel submitted that despite the clear findings, the learned trial Judge went ahead and gave judgment for the plaintiff. Counsel contended that Judgment of court must be based on all legal evidence before it. See Obulor & Anor. v. Oboro 2006 NSCQR 16 at 2021. Learned counsel submitted that in a claim for declaration of title to land like in this case, the onus is on the plaintiff to satisfy the court that he is entitled on the strength of his own case and not on the weakness of the defence. See Ituma v. Akpeme (2000) 2 NSCQR 69 at 70. According to learned counsel, the plaintiff having failed to prove title to the land in dispute, the only legal conclusion was for the court to dismiss the plaintiff’s case. That the judgment given in favour of the plaintiff was gratuitous and it is trite that a court of law is not a Father Christmas. The jurisdiction of court is limited to giving judgment based on facts and law governing the matter. See Okere v. Amadi (2005) 22 NSCQR 129. Learned counsel urged this court to have a look at the pleadings of the parties and the evidence adduced in support. According to counsel it would be evident that the final verdict of the trial court does not flow from his earlier findings. That this has occasioned a miscarriage of justice. For definition of miscarriage of justice, see Total Nig. Ltd and Anor. v. Nwako and Anor., 1978 5 SC 1 at 14.

Under issue No. 2 learned counsel referred to the finding of the learned trial Judge appearing at page 149 of the record wherein he said. “It is my view that the plaintiff could not establish either directly or through other persons that he has been in possession for a long time or even for any time to warrant the inference that he as the true owner of the land.” According to counsel by this finding, it is clear that plaintiff was not in possession of the land.

Reference was made to the testimonies of DW1 and DW2 who confirmed that defendants were in possession of the land in dispute. It was the view of learned counsel that the trial court in ordering injunction against the defendants showed that plaintiff is in possession of the land in dispute and that defendants are trespassers. Counsel contended that the law is that it is only the person who is in possession that can sue on trespass and obtain injunction against the defendants. See Okoye v. Kpajie (1972) 6 S.C. 176.

Learned counsel submitted that the learned trial Judge had earlier relied on the case of J.B. Ogbuechie & Ors. v. Gabriel Onochie & Ors. 1988 2 SCNJ page 170 and held that ‘possession can be used to resist an action against the owner. That the trial court having found that plaintiff was not in possession of the land, there was no basis for ordering injunction against the defendants who are in possession. He urged the court to resolve the issue in favour of the appellants.

Issue 3 is whether the trial court was right in denying the defendant judgment simply because they failed to tender in evidence the disputes survey plan filed by them.

In arguing this issue, learned counsel submitted that the land in dispute was very well known to the parties to the case, though both parties filed their dispute plan. Learned counsel submitted that as a general rule, the defendants have no obligation to file a dispute plan. According to counsel in a claim of title to land, the onus is on the plaintiff to prove that he is entitled to his relief. That the parties in the instant case did not put the identity of the land in issue. That neither the plaintiff nor the defendants denied knowing the identity or extent of the land. Reliance was placed on Ekwealo v. Obasi (1990) 2 NWLR (Pt. 131) at 231 and Ezendu v. Obiagwu (1986) 2 NWLR (Pt. 21) 228. It was argued that apart from identifying the land in dispute by filing Survey Plan, the plaintiff can discharge this onus by such oral description of the land that a surveyor acting on such description could produce a plan of the land in dispute. Cited in support is Olusanmi v. Oshufona (1999) 6 SCNJ 282 at 287. Counsel argued that DW2 in his evidence at page 109 of the record lines 1-4 fully described the land in dispute as required by law and the evidence was in line with the pleadings of the defendants. That the learned trial judge was wrong to deny the defendants judgment for failure to tender in evidence a survey plan. It is the law that absence of a survey plan cannot defeat the plaintiffs’ claim for title to the land where the piece of land in dispute is ascertainable and identifiable. See Okatkaje v. Akwido (2005) NSCQR 204 at 260, Efeinonoje v. Okpaloh 5 WSCQR 204 at 260 and Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141. That declaration of title could be granted without production of survey plan. That the accepted acid test is whether the land, the subject of the declaration can be ascertained with reformative certainty so that a surveyor taking the record of proceedings can produce a plan showing accurately the land which title has been granted. See Temue v. Awani (2001) 6 NSCQR 1081 at 1106. He urged the court to resolve this issue in favour of the appellants.

Issue No. 4 is whether the trial court should not have given Judgment in favour of the defendants. While arguing this issue, learned counsel for the appellants submitted that defendants counter-claimed for declaration of title and injunction. It was contended that in law, a counter-claim is a distinct and separate suit from the main claim. That though the two suits are tied together the trial court has the duty to give separate and distinct considerations to the suits with a view to makin separate pronouncements on the result of the separate suits. According to counsel, the trial court erred in law when it failed to give a separate consideration to the pleadings and evidence proffered in proof of the defendants counter-claim. That, had the trial court done so he would have had no difficulty in coming to the conclusion that the defendants had proved their counter-claim, while the plaintiff had woefully failed to prove the main claim. That defendant’s in their statement of defence and evidence of witnesses, relied on proof of title to the land through traditional history and acts of possession. As decided in Idundun v. Okumagba (supra) a plaintiff can prove his title through credible evidence in only one or more ways. Learned counsel referred to the observation made by the learned trial Judge at page 148 of the record and submitted that since civil matters are decided on preponderance of evidence, the trial court erred in failing to give Judgment in favour of the defendants. That if the trial judge had considered the two suits separately, he would have easily come to the conclusion that the plaintiff did not prove the main case. The result would have been dismissed of the plaintiff’s case. Then if the onus is not discharged then the proper step was to have entered judgment in favour of the defendants. See Itauma v. Akpieime (2000) 2 NSCQR 69 at 70 ratio 1. He urged the, court to resolve this issue in favour of the appellants.

Respondent’s issue complains that Judgment is against the weight of evidence. While arguing this issue, learned counsel for the respondent submitted that an appellant who complains that Judgment is against the weight of evidence as implied on the Notice of Appeal, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before the trial court. Reliance was placed on Ukpe v. Ndom & Ors. (1999) 5 NWLR (Pt. 606) 292. Learned Counsel urged the court to be guided by the case of Agbonifo v. Animereoba (1988) NWLR (Pt. 70) 325 when considering the Judgment of the lower court. According to counsel the learned trial Judge rightly evaluated the evidence adduced before him by the parties and their witnesses. That the trial court rightly assessed the evidence before it when he concluded that the defendant who abandoned his defence, could not have conducted a successful defence. Reliance was placed on Sotayo Aro v. Adisa Babayemi (2004) 5 WLRN 56. Learned counsel argued that the trial court correctly assessed the evidence before it when the defendants/appellants failed to tender their dispute plain or made attempt to prove their counter-claim. See Awote & Ors. v. Owodunmi (1987) 3 SCNJ 1 and Ekpwemonpolo and Ors. v. Edremoda (2009) 3 MJSC 68 ratio 7. Learned counsel further contended that it is trite law that land which a declaration is attached must be sufficiently identified. Reliance placed on Odesanya v. Emedemi (1962) 1 ANLR (Pt. 2) 320 and Ezeike and Ors. V. Uga & Ors. (1962) 1 ANLR (Pt. 3) 429. That appellants made no effort to identify the land they are claiming. That it is only when parties in dispute agreed as to the area, location or boundaries on the ground that survey/dispute plans become irrelevant. See Ekpemupolo and Ors. v. Edremoda supra. That appellant failed to tender any survey Plan or document of title which could have exposed the whole truth. That the lower court relied on the evidence before it, knowing the impact of Section 149 (d) of the Evidence Act. Reliance placed on Aremu v. Adetoro (2007) 11 MJSC, 159 at 161, ratio 3 and 4. Learned counsel was of the view that the respondent’s documentary evidence as to the identity of the land in dispute were never challenged and unchallenged evidence in court are credible and reliable. Cited in support are Amadi v. Chinda and Ors. (2004) 4 MJSC (Pt. 1) 127 ratio 8 and Lagos City Caretaker Committee v. Unachukwu (1978) ANLR 92. Counsel urged the court to hold that Judgment was not against the weight of evidence despite the remark of the trial Judge that he was reluctant to declare the respondent as exclusive holder of the statutory right of occupancy over and in respect of the property identified with survey plan No. HT/D/019/2005 dated 6th September, 2005. He urged the court to dismiss the appeal on this issue.

While arguing the second issue, learned counsel submitted that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial which saw, heard and assessed the witnesses. See Agbabiaka v. Saidu (1998) 6 LRCN 4635, ratio 1 and Akinloye and Ors v. Eyiyola and Ors. 1968 ANLR 92 at 95. Learned counsel contended that once there is sufficient evidence on record on which the trial court could have acted as it did or from which the trial court arrived at its findings of fact, the appellant court may not interfere. See Akpagbue v. Ogu (1976) 6 SC 63; Odofin v. Ayoola (1984) 11 SC 72 and Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273 AT 280. Learned counsel submitted that there are sufficient documentary evidence on record from which the court of trial arrived at its findings. According to counsel, the appellants neither led evidence to prove their counter claim nor file any survey document to ascertain with certainty the land in dispute. That a counter-claimant like the plaintiff in an action must prove his case against the person. See Nadi v. Oseni (2003) 48 WRN 8 ratio 13. Assuming but without conceding that respondent did not fully trace the traditional history of his inheritance, it was contended that he is entitled to succeed based on other pieces of evidence led by him. See Omoboriowo and Anor. V. Chief Michael Ajasin (1984) 1 SC 216. Learned counsel further submitted that the court should not give a party a remedy or relief which he never merits or asks for. Reliance was placed on Nigerian Air force v. Shekelte (2003) 2 MJSC 65 ratio 1, Nigerian National Development Society Ltd. v. Mumuni (1977) 2 SC 57, Total Plc v. Ajayi (2004) 22 WRN, 21 ratio 8 and Hon. Justice Ademola v. Sodipo (1992) 7 SCNJ 47. That appellant’s neither merited nor proved their counter-claim as required by law. Counsel concluded that the findings of fact made by the trial court are not perverse. That they are supported by evidence and urged the court to dismiss the appeal on this ground.

Issue 3 is whether the plaintiff proved his case and was entitled to Judgment. The contention of the respondent is that the registered survey plan No. CUO/EN 637/99 dated 31/5/99 prepared by a licenced surveyor, the dispute plan No. HT/DO19/2005 dated 6th September 2005 and the irrevocable power of attorney registered as No. 51 at page 57 in vol. 1564 of the lands registry Enugu which documents were already admitted as exhibits in court were documents of title that clearly identified with certainty the property of the plaintiff and were properly founded in law. Reliance placed on Aremu v. Adetoro (supra). That the learned trial Judge adequately carried out its primary function of making necessary findings. That there was uncontradicted documentary evidence before the court and the learned trial judge was entitled to accept the evidence as sufficient proof of claim. See Arabambi v. Abi Ltd. (2006) 3 MJSC 61 at 100 para. A – F. He urged the court to hold that the plaintiff proved his case upon the preponderance of evidence and was entitled to Judgment.

I have summarized the submissions of both counsel on the various issues raised by each party as argued in their respective briefs of argument. I will now proceed to resolve the issues raised in the appellants’ brief of argument as well as the response of the respondent.

The complaint of the appellant under issue one is whether the learned trial judge was right to have entered Judgment in favour of the respondent who failed to prove his root of title. It is settled law that ascription of probative value to evidence is a matter primarily for the trial court. Where a trial court unquestionably evaluates the evidence and appraises the facts, it is no business of the appellate court to substitute its own views of undisputed facts with the views of the trial court. See Balogun v. Agboola (1974) 1 ALL NLR (Pt. 2) 61; 1974 10 S.C. 11.

Also settled is the principle of law that an appellate court can only interfere with such findings after evaluation by the trial court where the said findings are perverse, i.e. not supported by the evidence on record or is based on wrong, evaluation or not based on the evidence led, at all. See Woluchem v. Chief Gudi (2004) 3 WRN 20, Ebba v. Ogodo (2000) 17 WRN 95; 1984 1 SCNLR 372.

By the nature of the complaint, I will have to scrutinize the record and re-assess the evidence adduced in order to determine whether the evidence on record supports the findings of the learned trial Judge. There are five ways of proving or establishing title to or ownership of land. In Idundun v. Okumagba (1976) 9 – 10 SC 1 at 31 the Supreme Court enumerated the five ways. Proof of ownership of title by traditional history and production of documents of title are amongst the five recognized ways enumerated in Idundun v. Okumagba (supra). The law is that the establishment of one of the five ways is sufficient proof of ownership. It is also trite that a plaintiff succeeds on the strength of his own case and not on the weakness of the defence.

As earlier stated plaintiff now respondent traced his root of title through traditional history. Respondent in paragraphs 3 and 4 of his amended statement of claim he pleaded traditional history. For clarity paragraphs 3 and 4 read thus:-

“3. The plaintiff’s father is late Francis Agbawo and he was the ancestral owner of the piece of land beside Ariaku stream at Umuenwene Iji Nike, in Enugu State within jurisdiction.

4. The said piece of land was inherited as a specific legacy by the plaintiff after the death of his father Late Francis Agbowo.”

Respondent testified and called two other witnesses in support of his claim. The respondent in paragraphs 3 and 4 of statement on oath as PW1 merely repeated what he pleaded in the amended statement of claim. Under cross-examination PW1 did not add anything to what he pleaded in the statement of claim. PW2 stated in his statement on oath which was adopted by him while testifying that the plaintiff/respondent had been in possession of the said piece of land since 1962 and had planted some cash crops on the land. PW2 stated under cross-examination: “We as a family have parcel of land.” PW3 was the surveyor who prepared the survey plan of the land in dispute. Under cross examination he said that he put down everything according to what the plaintiff told him. Based on this piece of evidence the learned trial judge made the following findings at page 148 of the record: “Evidence of family history was not established and this is minus on the part of this case. See the case of Alli v. Alesinloye (2000) NIJ 264 at 300 – 305. To say the least in land matter, especially in Igbo, and probably in Nigeria, family history is very important in this type of case, that unless a piece of land is bought or one acquires it as a gift there is every need for one to tell the story of how it devolve to you. An ancestor is one’s forefathers and at least up to few generation. Late Francis Agbowo, the father of the plaintiff, cannot by any strength of imagination be regarded as an ancestor to the plaintiff.” I cannot fault this finding. In pleading traditional history in a claim for declaration of title, the plaintiff is expected to narrate the genealogical tree from the original owner, the ancestor, in generation appurtenant to him, down the line to the plaintiff. In other words, he must prove who founded the land, in what manner the land was founded and the circumstances leading to it; and the successive persons to whom the land thereafter devolved through the unbroken chain or in such a way that there is no gap which cannot be explained. See Ezinwa v. Agu (2004) 3 NWLR (Pt. 861) 431; Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283 and Eno v. Ani (2004) 3 NWLR (Pt. 861) 610.

In the instant case the plaintiff/respondent failed to adequately trace the traditional history. It is not sufficient for a party who relies on traditional history for proof of title to land to merely plead that he and his predecessors-in-title had owned and possessed the land from time beyond human history. See Ezeokonkrvo v. Okeke (2002) 11 NWLR (Pt. 777) 1. The respondent did not lead evidence as to who founded the land, how the land was founded and the particulars of the intervening owners through whom he claims. I must say that the learned trial judge rightly evaluated the evidence as regards traditional history. The respondent did not prove his root of title based on the traditional history.

Plaintiff/respondent also gave evidence on act of possession. He pleaded in paragraph 6 of his amended statement of claim that he had been in peaceful and exclusive possession of the said land since 1962 with no interference or hindrance from anybody. That he planted some cash crops on the land but on or about April 2004 the defendants entered into the land, and damaged some of his crops as well as carving out 2 plots of land. PW2 in his statement on Oath stated that his father’s property shares boundary with the plaintiff s land on the North and plaintiff had been in possession at all material times. After considering the evidence of the plaintiff and his witnesses, the learned trial judge held thus:

“Acts of possession was equally not proved by the plaintiff. He devoted more time in Denying that it is not true that the Defendant planted banana and other crops, cut down Ukwa trees. There is nothing to show that he was in effective occupation. Possession can be used to resist an action by owner. See J.B. Ogbuechie & 3 Ors. v. Gabriel Onochie & 2 Ors. (1988) 2 SCNJ 170.”

At page 149 of the record he concluded thus: “In my view the plaintiff could not establish either directly or through other persons that he has been in possession for a long time or even for any time to warrant the inference that he was the true owner of the land. See Ekpo v. Ita C11. C.R. 68 at 69, Da coster v. Ikomi (1968) 1 All N.L.R. 394, 398. The plaintiff in his pleading has said that the land has boundary with Veronica Agbowo. One had expected him, to lead evidence to prove this, but he did not.” This finding in my humble view cannot also be faulted. The plaintiff/respondent has failed to establish by cogent and credible evidence numerous and positive acts of ownership and possession sufficient to hold that the land in dispute belongs to him (plaintiff/respondent).

In further proof of his root of title respondent relied heavily on Exhibit B the Irrevocable Power of Attorney donated to him by the community of the parties to this suit. The learned trial Judge at page 149 of the record had this to say: “The plaintiff complained that the Defendant did not challenge the Power of Attorney donated by Umuenwere Iji Nike till date. The fact is that this Power of Attorney from the Board of Trustees came in when the case is pending. I cannot therefore make use of it.”

The respondent pleaded in paragraphs 5, 6, 14 and 15 of his amended statement of claim the Survey Plan and the Power of Attorney. The Identity of the land as described in paragraph 6 read thus:-

“The Land in dispute measures approximately 3655 square meters and is surrounded by Beacons and Bounded as follows:

(a) On the South the entire piece of land is bounded by ARIAKU STREAM.

(b) On the North by Beacon Nos. ENS 1800B, ENS 1901B and ENS 1791B, ENS 1795B, ENS 1796B, ENS 1798B, ENS 1799B and the said boundary is share between the plaintiff and Mrs. Veronica Agbowo.”

The defendants/appellants denied these averments in paragraphs 6, 18 and 19 of their Amended Statement of defence and counterclaim. Paragraphs 6 and l8 are reproduced hereunder as follows:-

“6. The defendant deny any survey of the land by the plaintiff in 1999 and put the plaintiff to the strictest proof of his averment in paragraph 6. The defendants state that any such survey was not to their knowledge and consent. In further answer to the averments to paragraph 6 of the statement of claim the defendants state that the husband of Mrs. Veronica Okenke Anike Alum (Nee Agbowo) was the uncle of Ugwu Alum Ogbuene who was the father of the defendants. Veronica is therefore a member of the family of the defendants though married from plaintiff’s family. The defendant’s father shared some of the property of Alum Ogbuene equally with Okereke Anike Alum. Monday Okereke Anike Alum Ogbuene is the first son of Mrs. Veronica Okereke Anike Alum Ogbuene (Nee Agbowo) whose Land is bounded on the west with the land in dispute.

The defendant further state that their land which is being claimed by the plaintiff is on the East; bounded by the land of Chief Anike Ngwu. The land of the defendants. The defendants own the land between the land in dispute and the land of Sunday Okolo Ugwu. The defendants aver that they surveyed their land in dispute in Survey Plan No. BA/EN/LD01/2005. The said survey plan is hereby pleaded and will be relied upon during trial.

18. The defendants deny the averments in paragraphs 14 and 15 of the amended statement of claim. The Umuenwene Iji Nike Power of Attorney does not donate family land to anybody. The said Attorneys can only donate community land and not family land as in this case. The plaintiff procured the purported power of Attorney and certificate of occupancy if at all in anticipation of this suit.

19. The defendants will centered at the trial that a power of attorney is not an instrument that convey title to land and that a certificate of occupancy issued on the premises of power of attorney is void.

I have carefully perused the Power of Attorney (Exhibit B). The recital read thus:-

“WHEREAS:

1. The Umuenwene Iji-Nike community hereinafter referred to as “The community are and have been from time immemorial the owners in fee simple of the piece and parcel of land and which situated at ABAKPA NIKE UMUENWENE IJI NIKE, ENUGU EAST LOCAL GOVERNMENT AREA OF ENUGU STATE, NIGERIA measuring approximately 3655.2 square meters delineated in plan CUO/EN 637/9 verged red in this instrument.”

I have also examined exhibit A the Survey Plan tendered by PW3. It is evident that the area of land claimed in exhibit B is larger than that claimed in exhibit A. The respondent made no attempt in his evidence to reconcile the two documents. Furthermore, exhibit B refers to communal land and not a family land, while exhibit A the Survey Plan was prepared to show the extent of the area of land the respondent claimed he inherited from his father. A plaintiff in an action for declaration of title to land has the onus of showing satisfactorily that his plan corresponds with the land to which he lays claim. See Onwuchekwa v. Ezeogu (2002) 18 NWLR (Pt. 799) 333. It is also trite that the primary duty placed on a plaintiff who comes to court to claim a declaration of title to land is to show the court clearly, the area of land to which his claim relates so that the land can be identified with certainty. In other words, in an action for declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which the declaration can be attached. As it is, it cannot be said that the respondent had shown the exact extent and identity of the land he is claiming. Where a plaintiff claims a declaration of title to land and fails to give the exact extent and identity of the land he is claiming, his action should be dismissed. See Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 and Aribe v. Asantu (1980) 5-7 S.C. 78.

Similarly, in an action for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore satisfy the court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. See Gbadamosi v. Dairo (supra); Dada v. Dosunmu (2006) 18 NWLR (PT. 1010) 132 and Ajiboye v. Ishula (2006) 13 NWLR (Pt. 998) 628 and Kodinlinye v. Odu (1935) 2 WACA 33. As rightly found by the court, the plaintiff/respondent failed woefully to prove title to the land in dispute. As rightly submitted by appellant counsel, the only legal conclusion that the trial court should have reached was the dismissal of the plaintiffs case. Based on the evidence before the court the trial court had no legal right to “choose with the greatest reluctance” to give Judgment to the plaintiff/respondent. I will therefore resolve issue 1 in favour of the appellants.

The complaint of the appellants under issue 2 relates to the order of perpetual injunction made against the defendants/appellants. The defendants pleaded in paragraphs 8 and 9 of their amended statement of defence and counter-claim that their late father and great grand father planted some cash crops on the land, some of which are still on the land. DW1 and DW2 gave evidence in line with their pleadings. They confirmed that defendants/appellants were in possession of the land in dispute. The learned trial Judge after evaluation of evidence made a finding that defendants/appellants were the persons in possession and not the respondents. At page 149 of the record the learned trial judge stated thus: “It is my view that the plaintiff could not establish either directly or through other persons that he has been in possession for a long time or even for any time to warrant the inference that he was the true owner of the land.” I agree with appellants’ counsel that since the trial court had made a finding that the plaintiff was not in possession of the land, there is no basis for ordering injunction against the defendants who are in possession. The law is that it is only the person who is in possession that can sue on trespass and obtain injunction against the defendant. See Okhuarobo v. Aigbe (2002) a NWLR (Pt.856) 89.

Perpetual injunction is a consequential order which naturally flows from the declaration of title sought and since the available evidence showed that respondent failed to establish his right, the trial court ought not to have made the order against the appellants. See Ibrahim Councilor Timlari v. Jauro Santi Tippi (2010) LPELR – 4356 (CA).

In the circumstances I will resolve issue 2 in favour of the appellants.

For convenience I will resolve issues 3 & 4 together.

It is to be noted that the appellants filed a counter claim before the lower court.

A counter-claimant like the plaintiff in an action, must prove his case against the person he is counter-claiming before obtaining judgment on the counter-claim. See Nadi v. Oseni (2003) 48 WRN 8 ratio 13.

In the instant case the respondents contended that the appellants did not prove the identity of the land in dispute simply because they did not tender a survey plan of the area claimed by them. In a land case, a survey plan will not be necessary and can be dispensed with in the following cases: (a) where there is a proper description of the land; (b) where there is no dispute as to the boundaries of the land; (k) where the parties are not in any doubt as to the boundaries of the land. See C.G.C. Nig. Ltd. v. Baba (2004) 10 NWLR (Pt. 882) 658. DW2 in his evidence at page 109 of the record fully described the land in dispute as required by law. DW1 also described the land in paragraph 7 of his statement on oath. The evidence adduced was in line with paragraph 6 of the amended statement of defence and counter-claim. Neither the plaintiffs/respondents nor the defendants/appellants denied knowing the identity of the land in dispute. The oral descriptions of the land given by DW1 and DW2 are sufficient for any surveyor acting on such descriptions to produce a plan of the land in dispute. See Olusanmi v. Oshuson (1992) 6 SCNJ 282 at 287.

While it is true that the survey plan pleaded by the defendants/appellants in paragraph 6 of the amended statement of defence and counter-claim was not tendered in evidence the trial court ought not to have treated the case of the defendants/appellants as abandoned. It is trite law that the absence of a survey plan cannot defeat the plaintiff s claim or counterclaimant’s claim as in this case, for title to the land, where the piece of land in dispute is ascertainable and identifiable. See Okakaje v. Akwido (2005) NSCQR 204 at 260 and Temile v. Awoni (2001) 6 NSCQR 1081 at 1106. I agree with the submission of appellants’ counsel that a court can grant a declaration of title to the land even without production by the plaintiff of a survey plan.

Appellant’s complaint under issue 4 relates to evaluation of evidence. That the learned trial judge failed to give a separate consideration to the pleadings and evidence proferred in proof of the defendants/appellants’ counter-claim.

The appellants pleaded their root of title in paragraphs 3 and 7 of their amended statement of defence. They relied on traditional history and acts of possession. In Idundun v. Okumagbo (1976) 9-10 S.C. the apex court laid down five ways in which declaration of title to land can be proved. It would suffice if a plaintiff succeeds in proving one of the five ways laid down in Idundun v. Okumagba supra.

In a claim for declaration of title to land, the onus is on the plaintiff or counter-claimant to satisfy the court that he is entitled on the evidence brought by him to the declaration he seeks. The plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. See Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282, Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 and Onissaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517.

DW1 led evidence in line with the pleadings. In his statement on oath DW1 stated that their grand father inherited the parcel of land in dispute from his late father Ogbuene Nwogbuke. From time immemorial they owned and enjoyed the land in dispute from Ogbene Nwogbuke to his two sons Alum Ogbene and Anike Alum Nwogbuen down to the defendants and their brothers. The appellants having relied on traditional history are required to plead and prove the following (a) who founded the land (b) how the land was founded and (c) the particulars of intervening owners through whom he claims. In the instant case, the appellants had proved how the land in dispute devolved to them. See Ezeokonkwo v. Okeke (2002) 11 NWLR (Pt. 777) 1, where the plaintiff and the defendant anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial court is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier. The learned trial judge, while considering the evidence of the parties on traditional history at page 148 of the record had this to say: “In this regard, the defendants were able to trace the history to their great grand father Ohgbuene Nwaogbuke and Anike Alum and to their father Alum Ogbelle…” If one should base the Judgment on that alone, I think the defendant did more good job than the plaintiff.” It is clear from this finding that the learned trial judge accepted the fact that appellants’ traditional history was more probable than that of the respondent. Appellants had therefore proved title to the land in dispute through traditional history.

In determining which of the parties’ traditional histories is more probable, the trial court must make reference to the facts of use and possession in recent years as established by evidence and by seeing which of two competing histories is more probable. See Okoko v. Dalcolo (2006) 14 NWLR (Pt. 1000) 401. On acts of possession the learned trial judge at page 148 of the record made the following findings:-

“Acts of possession was equally not proved by the plaintiff. He devoted more in denying that it is not true that the Defendant planted banana and other crops, cut down Ukwa trees. There is nothing to show that he was in effective possession. Possession can be used to resist an action by owner See J.B. Ogbuechie & 3 Ors. vs. Gabriel Onochie & 2 Ors. (1988) 2 S.C.N.J. 170.

This is unlike the evidence of DW1 and DW2 who clearly said that their predications in title farmed and reaped the economic trees on the land in dispute. It is also in evidence that DW1’s plantain plantation on the land that he harvested them, till date, and nobody disturbs him.

It is my view that the plaintiff could not establish either directly or through other persons that he has been in possession for a long time or even for any time to warrant the inference that he was the true owner of the land. See Ekpo v. Ita C 11. C.R. 68 at 69. Dacoster v. Ikomi (1968) 1 M1 N.L.R. 394, 398. The plaintiff in his pleading has said that the land has boundary with Veronica Agbowo. One had expected him, to lead evidence to prove this, but he did not.”

This finding clearly supports the appellants’ case that they had been in effective possession of the land in dispute over a long period of time.

From all what I have said, it is apparent that the conclusion arrived at by the learned trial Judge is erroneous as same is not supported by evidence. The conclusion appears at page 150 of the record wherein the learned trial judge stated thus:-

“I think, it will be wrong to declare the defendants as entitled to the grant of a statutory right of occupancy over a piece of land in plan No. BA/EN/LD 01/2005. I say this because, survey plan is like something which is pleaded but not tendered and no evidence is taken upon it. It is just lying idle in the court’s file ‘I chose, with the greatest reluctance in me’, to declare the plaintiff as exclusive holder of the statutory right of occupancy over and in respect of ALL THAT piece or parcel of land (with the features thereon) verged Green and the dispute area) thereto shown verged Red in dispute Survey Plan No. HT/D/01912005 dated 6th day of September 2005 herein annexed, and I also declare c) Perpetual injunction restraining the Defendants, their agents, and privies from going into the land for the land belongs for the plaintiff.”

Had the learned trial judge properly considered the counter-claim, judgment ought to have been given in favour of the appellants. This is a proper case for this court to interfere. I will accordingly resolve issues 3 and 4 in favour of the appellants.

In the result, this appeal is meritorious and succeeds. The Judgment of the High Court Enugu State delivered by Ozoemena J. on 23-09-2009 is thereby set aside. It is ordered that the plaintiff/respondent’s claim before the lower court fails and is dismissed. In its place, Judgment is entered in favour of the defendant/appellants as per their counter-claim. N30, 000.00 cost is awarded in favour of the Appellants against the respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM (JCA): I had a preview of the judgment just delivered by my Learned Sister, ADZIRA GANA MSHELIA, JCA. I am in complete agreement with the reasoning and conclusions therein. The appeal has merit. It is allowed. The judgment of the High Court of Enugu State in Suit No. E/262/05 delivered on 23-9-2009 is hereby set aside. The plaintiffs claim in the Suit at the trial Court is dismissed. The defendants’ counter-claim succeeds.

Judgment is entered as per the counter-claim in favour of the defendant. The respondent shall pay cost of N30, 000 to the appellants.

Appearances

C.C. IgwenaguFor Appellant

AND

Ndubuisi OkwesiliFor Respondent