SNR APOSTLE OLADEJO AMOS OJEMEDAH v. ALAHAJI ADAM BARUWA & ANOR
(2012)LCN/5405(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of May, 2012
CA/L/57/2007
RATIO
APPEAL: EFFECT OF AN ISSUE NOT RELATED TO THE GROUND OF APPEAL
This is so because issues are distilled from a valid ground of appeal, and consequently any issue that does not relate to, nor arise from a ground of appeal is incompetent and deserves no consideration, other than to discountenance same; and such grounds of appeal shall be deemed unargued and abandoned.
Although for convenience, the courts will invariably strike out such a ground of appeal. See MADU MERE VS. OKAFOR (1996) 4 NWLR (pt 445) 697 whereof the Supreme Court per OGWUEGBU, JSC stated at page 6tM thus:-
It is trite law that an issue for determination should arise and relate to a ground of appeal. An argument should also be based on the issue formulated from the ground of appeal. PER MOHAMMED AMBI-USI DANJUMA, J.C.A
LAND LAW: WAYS OF PROVING TITLE TO LAND
The law relating to the claim of ownership or declaration of title to land has been so settled that it has crystallized into what I call the 5 ways of proof of title to land. They are as stated in IDUDUN Vs. OKUMAGBA (1976) 9/10 SC 227 at 246- 250 to be:
- Proof by traditional evidence Abiriaba Vs. Chief Enyimadu (1953) AC 207 at 215 – 216
- By production of documents of title.
- Acts of ownership numerous and positive extending over a length of time as to warrant the inference of ownership.
- Acts of long enjoyment and possession of land.
- By proof of possession of adjacent land in circumstances that render it probable that the owner of such land would in addition be the owner of the disputed land. PER MOHAMMED AMBI-USI DANJUMA, J.C.A
LAND LAW: REQUIREMENT OF A PARTY RELYING ON TRADITIONAL EVIDENCE
If a party relies on traditional evidence he must show how his ancestors came to own and possess the land and eventually passed it to him, otherwise his claim will fail.See ACHEM & ORS VS. EDO (2012) 4 NWLR (Pt 1290) 310. Both parties rely on traditional history as the foundation of their claims. PER MOHAMMED AMBI-USI DANJUMA, J.C.A
LAND LAW: REQUIREMENT FOR A PARTY SEEKING DECLARATION TO LAND
It is settled in a plethora of decided cases that land which a declaration is sought must be sufficiently identified. In other words in a claim of title, it must be made to a defined area with certainty. See AMADU RUFAI VS. RICKETTS & 5 ORS (1934) 2 WACA 95 EZEOKEKE& ORS VS. UGA & ORS (1962) 1 ALL NLR (pt 1) 482. In a claim 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.
UKUAJA VS. ISHOLA (1982) 7 SC 374 OGEDENGBE & ORS VS. BALOGUN & ORS 2007 152 LRCN 197. Where the boundaries of the land are not established by the plaintiff, the action fails and should be dismissed because the case has not been proved. See AMALA VS. MADUKU 14 WACA 580; DINA ALADE VS. DINA 17 NLR 32; EPI & ANOR VS. AIGBEDION (1975) 1 NMLR 31; UGBO VS. NWOKEKE 6 ENLR 106.
Indeed in accurate plan will defeat a plaintiff ‘s claim. This is also the case where the description of the land in dispute contradicts the plan:
See OGEDENGBE & ORS VS. BALOGUN & ORS. Supra per OGBUAGU JSC at page 215, paragraphs K-Z. PER MOHAMMED AMBI-USI DANJUMA, J.C.A
JUSTICES
HELEN MORONKEJI OGUNWUMIJU 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. SNR APOSTILE OLADEJO AMOS OJEMEDAH Appellant(s)
AND
1. ALAHAJI ADAM BARUWA
2. ASIATA BARUWA Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A: (Delivering the Leading Judgment): This is an appeal against the decision of the Lagos State High Court delivered by Hon. Justice D. O. OLUWAYEMI, J on the 28th day of March, 2006 at the Ikeja Judicial Division of the Court wherein the Claimants/Respondents, suit was declared meritorious and the reliefs claimed ware granted as prayed and wholly.
The said judgment is at pages 131 – 142 of the record of appeal. For a full appreciation of this appeal, the full facts and the circumstances of the appeal need to be restated as captured by the Appellant and acceded to by the Respondents also.
The plaintiffs, who are now Respondents had claimed against the Defendants/Appellants at the trial court for the following reliefs and per their amended statement of claim (contained at page 76 of the record):
1. A declaration that the plaintiffs are entitled to a grant of a statutory right of occupancy in respect of that piece of land situate and being at Ipaja Village, Agege, Lagos which is more particularly delineated and drawn on survey plan No. OGEK 1135 /81. prepared by 5. AKIN OGUNBIYI licensed surveyor and Deed of Conveyance No. 104 at page 426 in volume 105 and dated 26/6/1917 kept at the land Registry, Lagos.
2. Perpetual injunction restraining the Defendants, their agents, privies and servants from committing further act of trespass on the land.
3. N=10,000.00 Damages for destroying the plaintiffs crops on the land.
The plaintiffs amended Statement of claim is contained at 74 – 76 of the record and is dated 9/02/2004.
The reply to the amended statement of defence dated 16th October, 2003 is at page s 62 – 64 of the record.
At the trial, the plaintiffs testified as PW1 and PW2 at pages 77- 81 and 82 – 85 of the records respectively.
On the part of the defendants, only the 2nd Defendant, AMOS OJO OJE Medah testified as DW. see pages 89 – 91 of the record.
The plaintiffs written address dated 17th February, 2005 (at pages 105 – 121 of the record); the Defendants address dated 24th January, 2005 (at 92 – 102 of record) and Defendants Reply address on points of law only of 22nd February, 2005 (122- 124 of the record) were all adopted by the parties and the vexed judgment of 28th March, 2006 was delivered as earlier on stated, granting all the claims of the plaintiffs.
The Notice of Appeal in this appeal is the amended Notice of Appeal filed pursuant to motion filed on 15/3/07 which was granted on 8/4/08.
The said order granted was for leave to file an additional ground of appeal to wit Ground 5, to the Appellants Grounds of appeal. It is instructive to observe, however, that the additional ground of appeal No.5 for which leave was granted was, not filed. The instant notice and Grounds of appeal are those contained at pages 143 – 146 of the record. As after all, the Appellants truly prevaricated in respect of this intended 5th ground of appeal.
I see a motion filed on 15/3/07 which was granted; and yet another filed on 15/4/08 which was granted on 7/4/09 with the deeming order sought refused, however.
The said intended additional ground of appeal bordering on a challenge to the portion of the judgment said to be at variance with a claim may not have substantially affected the ultimate position of the judgment and the merit of the appeal based on the other grounds filed and argued, hence the abandonment. I will stop speculating as it is not the function of this court.
The Appellants filed their brief of argument on 15/4/09. The Respondents on their part filed the Respondents brief of argument on 29/4/09. At the hearing of this appeal, the respective counsel for the parties urged us to allow the appeal and to dismiss as the case may be.
In oral adumbration of his clients brief of argument, Mr. OLAREWAJU ESQ, argued that the appeal should be allowed because according to him, the trial court had shifted the onus of proof to the Appellant in respect of partition of the land, which the Appellant had denied.
That a finding in respect of partition was wrongly made even the Defendant/Appellants denied that it was family property. That the Respondent’s contention should be discountenanced.
Ilegogie Esq., learned counsel for the Respondents urged that the appeal be dismissed.
Notwithstanding the opening words in the Appellants brief of argument that 3 issues were distilled from 5 grounds in the amended notice of appeal, the space for the indication of the day of April 2009 when it was filed is left blank.
This confirms and gives credence to the fact of the non existence and non filing of such an amended notice of appeal with 5 grounds. The extant notice of appeal has 4 grounds of appeal.
Having said that, I think, it is important that counsel should not mislead a court of law as it can unnecessarily task the judge into a futile search for a non-existing process and compounding strain, stress and waste of judicial time, leading to ultimate delay in the dispensation of justice.
I pray to see the end of such posturing by practioners of law in the sacred temple of justice.
Now to the issues. The Appellants issues are viz:-
1. Whether in view of paragraph 19 of the Amended Statement of defence, the plaintiffs who bear the burden of proof of any partition of Baruwa family land after the death of Baruwa their father sometimes in 1940 sufficiently pleaded salient facts and offered credible evidence in support thereof to establish their root of title based on the said partition after the demise of Baruwa (Grounds 1 and 2).
2. Whether the claim made by plaintiffs for damages in paragraph 16 of the amended statement of claim having been put in issue by paragraph 4 of the amended statement of defence, can the plaintiffs on whom the burden of proof lies succeed in their claim for damages for economic trees destroyed when none of the 2 witnesses for the plaintiffs offered any iota of evidence regarding damages be it special or general for damaged economic trees or corps.
3. Whether the amendment of the plaintiffs relief in paragraph 18(1) of the amended statement of claim by the learned trial judge in her judgment dated 28th March, 2005 suo motu without any input from the parties should be nullified as a violation of the parties constitutional right to fair hearing under section 36(1) of the constitution of the Federal Republic of Nigeria, 1999.
Appellants counsel indicates in the brief that no issue is distilled from Ground 4 and it should be deemed abandoned.
Before, I proceed further, I should commend the learned counsel for the Appellants for the honest and bold admission of the position of the law in urging us to discountenance ground No.4 as having been abandoned as no issue has been distilled therefrom.
The said ground is accordingly struck out. I shall, however, on the same principle of law that is now trite, proceed to discountenance issue No.3 as not based on an extant and valid ground of appeal.
The Ground No.5 of the Notice of Appeal upon which it purports to emanate or be based had been held by me to be nonexistent.
The issue has no hanger. It has no foot hold to ground a terra firma. The fact that it is coined in the semblance of a constitutional right violation as relating to fair hearing, not withstanding there should be a valid notice or ground of appeal relating thereto, for it to be competently raised.
This is more so that the particulars thereof needed be provided and the other side or party afforded the opportunity of knowing the materials upon which to respond in defence. A right of fair hearing cannot be raised in challenge in a manner that creates the same violation. Issue No.3 is struck out, therefore by me.
There now, subsists only the Appellants issues Nos. 1 and 2 for consideration. On the part of the Respondents, their learned counsel, per their amended Respondent’s Brief of Argument adopted the issues formulated by the Appellants. He of course states the obvious when he said that having not cross appealed, he cannot raise an issue outside that framed by the Appellant from the grounds of appeal filed.NZEKWE VS. NZEKWE (1989) 2 NWLR (Pt 104) 373 and KUUSU VS. UDOM (1990) 7 NWLR (Pt 127) 427 were referred to in aid. That is the position of the law. It is in furtherance of this trite position of our adjectival law that having adopted the Appellants issues, the respondent’s herein shall be taken to be adopting only the surviving 1st and 2nd Appellants issues, as I had indicated. Since the other Appellant’s issues are moribund, dead or none existent, the respondents cannot build upon non existing issues as you cannot build on what does not exist! It will collapse.
As, I stated in the decision of this court (per Danjuma, JCA’S (leading Judgment) in Appeal No. CA/L/647 /2010, between SAM EGBUCHUNAM (Practicing under the Name and style of EGBUCHUNAM & Partners: AND
1. MR MIKE AIYEDAN
2. MRS JULLET MARQUIS
(For themselves and as representatives of the estate of late MR P. L. AIYEDAN delivered on Monday the 14th May 2012,
I think it necessary at this stage to reproduce the grounds of appeal as contained in the record of appeal verbatim as that would bring to focus the propriety or otherwise of the issues as formulated by the parties. This is so because issues are distilled from a valid ground of appeal, and consequently any issue that does not relate to, nor arise from a ground of appeal is incompetent and deserves no consideration, other than to discountenance same; and such grounds of appeal shall be deemed unargued and abandoned.
Although for convenience, the courts will invariably strike out such a ground of appeal. See MADU MERE VS. OKAFOR (1996) 4 NWLR (pt 445) 697 whereof the Supreme Court per OGWUEGBU, JSC stated at page 6tM thus:-
It is trite law that an issue for determination should arise and relate to a ground of appeal. An argument should also be based on the issue formulated from the ground of appeal.
The Respondents argued 3 issues as against the reliance and adoption of the totality of Appellants issues. I shall, however consider the arguments as raised.
A calm perusal of the issues for determination as formulated by the parties does not show a concise, clear and unambiguous revelation of issues for determination as enjoined by the rules of this court which provides that issues for determination shall be concise, articulate and not in abstract but in concrete terms arising from and related to the grounds of appeal filed and which represent the questions in controversy in the particular appeal.
See OKPALA & ORS VS. IBEME & ORS (1989) 2 NWLR (pt 102) 208, per NNAEMEKA – AGU, JSC at page 220. See also JSC EHOT VS. THE STATE (1993) 4 NWLR (Pt 290) 644.
The issues for determination must be simply, concisely and tersely formulated to enable the adverse party and the court to know the trend of the argument expected in the brief. This Court (Lagos Division) had stated in MANAGEMENT ENTERPRISES LIMITED VS. ABC MERCHANT BANK (1996) 6 NWLR 249 per pats – ACHOLONU, JCA at page 259 thus,The three (3) characteristics of issues are precision, brevity and clarity. Hon. Justice NIKI TOBI, JSC in his Book, “The brief system in Nigerian Courts” Published by Centre for Law and Development Studies, Lagos, 1999, at page 671, states in part thus:-
It is an important aspect of brief writing that issues for determination must be carefully and succinctly formulated. The issues which are based on the ground or grounds of appeal must really bring out in clear focus, the main theme, arch or tempo of the appeal. They must show in all clarity and precision, the point awaiting the decision of the appellate court.
The issue formulation language(Sic) must not only be clear and terse, but must also be hard and to the point. The language should not be bombastic, fluid and vague.
ATTORNEY- GENERAL, LAGOS STATE VS. SOWANDE (1992) 8 NWLR (pt 161) 589 (per TOBI JCA at page 598).
Guided by this postulation of the learned jurist and author, and professor of law, I am clear in viewing the surviving issues as formulated by the Appellants as not only vague, nebulous and imprecise.
The 1st issue as framed is done in the pattern of an issue framed at a trial court for the determination of the case at the trial court.
It does not succinctly seek to challenge a decision of the trial court on a point of contestation.
I shall, therefore, take the liberty to reframe the issues as I understand it from the facts and judgment/grounds of appeal to be on the question whether the trial court was justified to have given judgment in favour of the Plaintiffs/Respondents on the basis of the evidence led. In other words, whether the Respondents proved their case for the reliefs claimed at the trial court. I shall treat this appeal on the basis of this issue as Appellants first issue prolixity of issues formulated is not a merit and would most likely obscure the core issues to be determined. This is the situation in the Appellants 1st issue which related to the unnecessary and undesirable formulation of a secondary issue relating to
whether a partition of the disputed land had been proved to found the Respondents alleged reliance on an act of partition of the disputed land leading to their own root of title to the land in respect of which reliefs are claimed. Issue No.2 as framed by the Appellant suffers the same defect of not specifically raising a challenge to the trial judgment. It is framed in the manner of an issue for the trial of the case and resolution by a trial court, were it not that the courts have moved towards doing substantial justice, I would have simply discountenanced the issues as nonexistent for the determination of this appeal. However since a court of law must do justice, I shall reformulate the issues for determination as those formulated by the Appellants would not advance the interest of justice for want of clarity. I shall, however, avoid framing an entirely new issue that do not arise from the challenge to the ultimate judgment made on the basis of the claims, as to do so will be a violation of the right of fair hearing and descending into the arena. This a court of law must avoid.
On whether, the Plaintiffs/Respondents had proved their claims to warrant judgment as entered, Appellant’s counsel had argued as would appear from the 1st issue reframed by me that the claims had not been proved. Learned counsel contended that the Plaintiffs/Respondents by their statement of claim and writ of summons had sued in their personal capacity and not as representatives of any of the 7 wives and 18 Children begotten by their progenitor Brimah Baruwa, whose 7 wives and 18 children were listed in the record.
That the Map attached to the document of title ie conveyance relied upon in favour of the Respondents said progenitor was not signed. Counsel however admits or concedes that the deed of conveyance dated 29th June, 1917 and duly registered as No.104 at page 426 in vol.105 of the register of deeds kept at the land registry Lagos State was tendered as Exhibit A as proof of ownership of a vast area of farm land at Baruwa Village, Ipaja Lagos as pleaded at par. 15 of the Amended statement of claim at page 75 of the record. Learned counsel submitted that the plan attached to exhibit A was not signed and that this was corroborated by PW1 (the 1st Plaintiff at page 81 of the record.
In cross examination when he stated that I don’t know where they sign on this exhibit A; furthermore, that 2nd Defendant was not allowed by his counsel to answer as to whether the map was signed by a surveyor or any maker or expert. That the plan on exhibit A was not certified nor testified to by a surveyor. That the conversion of the dimensions to current applicable unit was not done. That although the conveyance was admissible under sections 2 and 15 of the land instruments registration law cap, 111 laws of Lagos State 1994, but the map drawn thereon not signed and authenticated by the maker the weight to be placed on it was a different matter entirely. Learned counsel referred to the case of OMEGA BANK NIGERLA PLC VS. O. B. C. LTD. 2005 wherein the Supreme Court stated thus:-
The court cannot in any event ex debito justicia ignore a situation in which the foundation of a claim to a preparatory (sic) legal interest are based on a worthless, unsigned and inadmissible document.
See also A -G ABIA STATE VS. AGBARAYA (1999) 6 NWLR (pt 607) 362 at 377 where in the Supreme Court stated It is well settled that an unsigned document is worthless and void.
That the Exhibit A attached plan, not being signed has no probative value to make it the foundation for partition pleaded by the plaintiffs and that there was in the alternative no parol evidence or description of Braimah Baruwa’s land to satisfy the test laid down in ATE KWADZO vs. ROBERT KWACHT ADJEI (1944) 10 WACA 274 at 274 to the effect that a surveyor taking the record document ie exhibit A could produce a plan showing clearly the land to which title has been given.
That the burden of proof of partition was on the Plaintiffs in accordance with sections 135, 136, 137 (i) of the Evidence Act, cap 112 Laws of the Federation 1990. That the trial court was wrong when she placed the burden on the defendant in a situation where the parties to the partition, precise area of the land partitioned, individual constituents of the partitioned land were not proved and consequently making the pleaded partition rather vague and totally imprecise.
Learned counsel proceeded to argue further that the pleadings in paragraph 2 of the Reply to the Amended Statement of Defence averring partition under Yoruba Native law and custom using Idi Igi tradition (per stripes) was not properly pleaded as the 7 wives and Names of Issue/Issues of each of them was not tabulated and so evidence of PW1 and PW2 on Idi Igi basis of partition went on to no issue as those salient material facts were not pleaded Emegokwe Vs, Okadigbo (1979) 4 SC 113 at 117 Adejumo Vs. Ayontegbe (1989) 3 NWLR (Pt. 110) 47 at 494. Akeredolu vs. Akinremi (1998) 3 NWLR (Pt. 108) 164 at 173. Awoyegbe Vs. Ogbeide (1988) 1 NWLR (Pt. 79) 695 at 718. By and large, the learned counsel made a legal foray or sojourn into the requirements for a valid partition of land in Yoruba Native law and custom and submitted that partition of family land had not been proved and that in any case an allotment of family land can be made by the head of the family alone as done to the 2nd Defendant’s father. That a partition without provisions for the other members of the Plaintiffs purported family of 7 wives and 18 children was void and their title, therefore remained unproved. That partition which did not cover all other branches of the family. Balogun Vs. Balogun (1943) is void. 9 WACA 78; Dosunmu Vs. Adodo (1961) LLR 149 Onwugbufor Vs. Okoye (1996) 1 NWLR (Pt. 424) 252, Majekodunmi V. Tijani (7932) 11 NLR 74 at 75. On the whole, the Appellants faulted the validity of the title claimed by the Respondents and concluded that for want of legal proof of customary partition under Yoruba Native law and custom and the paucity of oral evidence of proof of identifiable land partitioned and existing in favour of all the family members or Branches; and in the face of the unsigned plan annexed to the purported conveyance Exh. A, the trial court ought to have resolved the case against the Claimants to the effect that they had not proved their claim. That this issue should be so resolved in favour of Appellants now. The Respondents in arguing the same reframed and discussed issue supra, had aptly and tersely submitted that the trial Judge had carefully evaluated the evidence led before entering Judgment.
Counsel argued that to succeed in an appeal – against findings of fact, it must be shown that in the performance of its primary duty of appraisal of oral evidence and ascription of probative value to such evidence, that the court of first instance made imperfect use or improper use of the opportunity of hearing and seeing the witness or has drawn wrong conclusions from accepted or proved facts which facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not themselves support. NTEOGWUJIA vs. NKIRU (1988) 10 NWLR (Pt.569) 267 at 306. Fashana Vs. Adekoya (1974) 1 AII NLR (Pt. 1) 35 at 41 and Christopher Okoto V. Eunice Uzoka (1978) 4 SC 77.
It was submitted that the conveyance Exhibit A had been shown to be part of Baruwa land in dispute. That the whole of the Baruwa family agrees that this land belongs to Kamila and Asiata Baruwa, the original Plaintiff in the lower court and that no other member of the Baruwa family has come forward to lay claim to this portion of land. Learned counsel contended that it was a misapprehending or deliberate misreading of the Plaintiffs claim to contend that the land in dispute was the only land inherited by them and subject of a partition.
Counsel, referred to paragraph 3 of the amended statement of claim (page 74 of the record and said the Plaintiffs father owned vast area of farm lands at Baruwa village Ipaja, Lagos while Exh. A was the portion that belonged to the Plaintiffs/Respondents as their share. That the 1st Respondent was of same mother with Appellant’s purported vendor but testified truthfully that his brother had no such land to dispose as claimed. Counsel faulted the testimony of the Appellant as he did not know any other part of the Baruwa family land which he said his father bought a portion thereof; not knowing the Respondent or any member of the family but one Babadeji who witnessed Exhibit a(his father’s only document on the land) who was not known to the Respondent was held suspicious.
It was further submitted that it was a sheer diversionary antic to contend on the non signature of Exhibit A; that the Exhibit A having been executed and duly registered for 20 years enjoys a presumption of regularity under the evidence Act. That the plan is merely attached to it and that the court had correctly evaluated it; that it was not the law that a surveyor must be called to certify a map attached to a conveyance before it is valid as it already enjoys the presumption of regularity and validity. Such registered conveyance could be set aside upon an application. Not having been done, the conveyance registered is valid. Learned counsel distinguished the cases cited by the Appellant from the instant case as in those other cases, the documents, were not signed, unlike this case where the conveyance is signed and it is the document upon which the Claimant/Respondents derived their title. That even if there was no plan attached, the clear description of the land in the deed in the absence of a plan would not invalidate the deed. That evidence had been led by witnesses as to boundary men and from whom their father bought (pages 80, 81, 83 and 84 of the record.)
That the identity of the land was certain even to the Appellant who claimed he bought a portion of the Baruwa family land. PW2 claimed that her brothers are her boundary men, while PW1 claimed that his mother’s children’s land is different from that of Alimotu Baruw’s children It was submitted that the Respondents had testified to their entitlement to a partitioned portion of a vast land and which is covered by Exh. A and had proceeded to also show how some other, branches of the Baruwa family had dealt with or sold portions of their land without any challenge. That that proved the fact that the vast Baruwa family land had been partitioned and the Plaintiffs/Respondents were protecting their own portion. They wondered what the business of the Appellants, as strangers, was in doubting the partition or questioning its validity. PW1 testified at page 82 of the record that the land was not given to the 1st Respondent who went on to prepare plans and documents indicating that it was his father’s property and purporting to sell to the 2nd Appellant. I have carefully studied the record of appeal and in particular the evidence led by both sides, and find clearly that the Plaintiffs at the trial had clearly shown by their pleadings and evidence that they were entitled to the reliefs claimed. Firstly they had shown their nexus or relationship to the owner of the land which the Defendants/Appellants also trace their root of title to.
The Plaintiffs/Respondents in my view had clearly testified to the land claimed.
The identity is as expressed in the document of conveyance, Exhibit A which was unsuccessfully sought to be impugned by the Appellants.
There is no doubt that both parties claim that the land belonged initially to the Baruwa family house. Whether the partition was properly done or not is not the business of the Appellants as strangers and who have no locus standi to challenge same. If they wish to so challenge, then where in lies their case to an entitlement to that land by purchase, in the face of evidence that it was family land. The 2nd Defendant, Ojo Ojemade testifying in chief at page 85 of the record denies knowing the Plaintiffs and also denies knowing the land in dispute. That he is not aware of Exhibit B but only of a survey Plan OGEK 2913/83 of 26/8/3 (Exhibit F) relating to land which he said his father had bought in 1961. That the purchase was under Yoruba Native law and custom. That his father was taken to the land and shown the boundary and given a document. That the document, Exhibit G was kept in a Bank and no disturbance over the land between 1961- 1982 states further that the Plans Exhibits G and F fall on Baruwa family land. Says he only worked on his father’s land which he bought in 1981. That nobody other than the Plaintiffs disturbed him in respect of the land and even then after 31 years..
Under cross examination, this Defendant stated that after his father’s death he caused Exhibit F to be prepared. That is the plan; and that exhibit “B” was prepared by the same surveyor and covered where he lives and nobody disturbed him. He asks that he be protected in respect of his father’s land. That his father had no plan before or besides the one he, the witness, prepared. I have given a careful consideration to the addresses of the respective parties and have also studied the evidence in the printed record together with the claims made.
While the Plaintiffs claim their reliefs on account of their father by inheritance intestate under customary law leading to their partitioning their late father’s lump property which has the land in dispute as a part thereof; the 1st Defendant/1st Appellant lays claim to the same land in defence alleging that it was bought by his father, who was farming their own but made no plan or survey thereof, but who was however put in possession and kept the purchase receipt in a Bank.
The law relating to the claim of ownership or declaration of title to land has been so settled that it has crystallized into what I call the 5 ways of proof of title to land. They are as stated in IDUDUN Vs. OKUMAGBA (1976) 9/10 SC 227 at 246- 250 to be:
1. Proof by traditional evidence Abiriaba Vs. Chief Enyimadu (1953) AC 207 at 215 – 216
2. By production of documents of title.
3. Acts of ownership numerous and positive extending over a length of time as to warrant the inference of ownership.
4. Acts of long enjoyment and possession of land.
5. By proof of possession of adjacent land in circumstances that render it probable that the owner of such land would in addition be the owner of the disputed land. If a party relies on traditional evidence he must show how his ancestors came to own and possess the land and eventually passed it to him, otherwise his claim will fail.See ACHEM & ORS VS. EDO (2012) 4 NWLR (Pt 1290) 310. Both parties rely on traditional history as the foundation of their claims. The Respondents testified as to how their ancestor (father) got his title, culminating to its registration by a deed of conveyance.
The 1st Appellant on the other hand testified on a derivative title that was not firmly established. No wonder the trial court considered this purported title and the document or plan made in the name of the 1st Appellant’s father as fraudulent.
This is as it should be. This court only recently stated thus:- It is the law that a party relying on traditional evidence must plead his root of title not only that he must show how his ancestors were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. He must also show how the person or family also came to have title vested in him or it.
See OKOKO VS. DAKOKO …….Per BADA,JCA in ACHEM VS. EDO (2012) 4 NWLR (Pt 1290) page 310 at 321 paragraph D – E (Supra).
It is settled in a plethora of decided cases that land which a declaration is sought must be sufficiently identified. In other words in a claim of title, it must be made to a defined area with certainty. See AMADU RUFAI VS. RICKETTS & 5 ORS (1934) 2 WACA 95 EZEOKEKE& ORS VS. UGA & ORS (1962) 1 ALL NLR (pt 1) 482. In a claim 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.
UKUAJA VS. ISHOLA (1982) 7 SC 374 OGEDENGBE & ORS VS. BALOGUN & ORS 2007 152 LRCN 197. Where the boundaries of the land are not established by the plaintiff, the action fails and should be dismissed because the case has not been proved. See AMALA VS. MADUKU 14 WACA 580; DINA ALADE VS. DINA 17 NLR 32; EPI & ANOR VS. AIGBEDION (1975) 1 NMLR 31; UGBO VS. NWOKEKE 6 ENLR 106.
Indeed in accurate plan will defeat a plaintiff ‘s claim. This is also the case where the description of the land in dispute contradicts the plan:
See OGEDENGBE & ORS VS. BALOGUN & ORS. Supra per OGBUAGU JSC at page 215, paragraphs K-Z.
In the instant case on appeal, the plan annexed to Exhibit A was not challenged as relating to the identity of the land or its description or dimension.
All that the Appellants complain about is that the plan annexed to Exhibit A (the Registered Conveyance) was not signed by whoever prepared it. It can be deciphered that the identity of the property covered by the plan was, therefore, not in dispute or in doubt. The Appellants learned counsel conceded that it was only the issue of the weight to be attached to it that was material or the problem.
The learned trial judge had the opportunity of perusing the exhibits and listening to the witnesses. He formed his impression as to their credibility or otherwise and found nothing doubtful as to the specific identity and description of the land in dispute, which had been testified to and its common boundary men testified to by the Appellants and which by and large was known to the Appellants.
The identity of the land was therefore neither in doubt nor in issue. The mere assertion as to its existence being brought about by a partition is, in my view, not a material fact such as to impugn its certainty and the fact that it was an identifiable land known to both parties.
In OGEDENGBE & ORS VS. BALOGUN & ORS (Supra) OGUNTADE, JSC in his contribution at page 223, par. 4 stated that it was, apparent that parties were aware of the land in dispute between them and had pleaded conflicting traditional histories as to the origin of title of each asserted.
In this case, the parties pleaded divergent histories of how they became owners of the same land known to them. The identity of the land was, therefore settled.
The Appellant’s purported root of title, vide purchase in 1961 by his father had not been shown to have been registered as a registrable instrument as yet; even as at the time of trial and the tender in court of Exhibit A. It (Appellant’s receipt) was like a Treasure buried and tucked away without investing same. Although actual possession was said to have been taken of the lis(Sic) covered by it, I must note and stress, that the area clearly shown to have been occupied by Appellant and as also covering the Exhibit A was simply stated in evidence by the Appellant to be the waterlogged or mashy lower part, and that it was smaller than the upland area.
This weakness in the Appellants case as relating identity of land, in my view, strengthens the Respondents claim on identifiable and clearly ascertained land that was registered as a registrable instrument. The Exhibit A, a document of 1917 was more than 20 years old and in existence before the 1961 agreement, which in any case rank below at and was merely in the nature of a purchase receipt or memorandum of an agreement in writing coupled with a fluid corpus, that had not been transferred in law or registered.
Section 28(2) of the registration of titles law of Lagos State 2004, provides thus:
The transfer shall be completed by registration of the transferee as owner of the land or charge transferor, and filing the transferred in the registry; but until such registration the transfer shall remain the registered owner of the land or charge.
The Appellants have not shown that there was a lis pendens in respect of the said land when the respondents title was registered as conveyance No.104 at page 426 in Vol.105 of the Register of deeds tendered as Exhibit A They have not shown that it was defective; neither have they applied or shown that the register had been rectified.
They cannot in the eyes of the law be deemed to be purchasers for value against the registered and subsisting prior interest of the Respondents.
See ATTORNEY GENERAL OF THE FEDERATION VS. C. O. SODE (1990) 1 NWLR (Pt 128) 500; OLORI MOTORS CO. LTD& ORS VS. INION BANK OF NIGERIA (PLC) (2006) 10 NWLR (Pt.989) 586; ENEKWE VS. IMB (NIG) LTD (2006) 19 NWLR (PT. 1013) 146.
To the contrary, the fact of registration, of the Respondents progenitors title through whom they claim, confers protection to the Respondents. See section 48 of the Registration of titles law of Lagos State.
In ONAGURUWA VS. AKINREMI (2001) 13 NWLR (Pt 724) page 38 it was held that once title is registered under the registration of titles law, cap. 166 laws of Lagos State, no version of history will be used to upset the registered title as its past history has become irrelevant as the register is at all times the final authority and the state accepts responsibility for the validity of transactions which are effected by making an entry in the register.
The Exhibit A, so long as it is a registered conveyance of an identifiable portion of land known to the parties and which the parties both lay claim to, I hold that the right of the plaintiffs to an identifiable land that is protected as a title in law superior to all other claims against same had been settled. It was properly conformed and declared by the trial court.
On the strength of their case at the trial, I think the trial judge was right on the preponderance of evidence in granting the Plaintiffs/Respondents claim, as the 1st Appellant was, in my view, rightly held to be laying a claim without legal basis.He therefore could not have given what he did not have to the 2nd Appellant. The principle is Nemo dat quod non habet.
The unlawful entry and dealing (trespass) in the land entitled the Respondents to injunction and damages. On the whole, therefore, the success of the Respondents case at the trial court was a deserved victory. The grant of the reliefs sought was in order. The issue number 2 bordering on damages fails, as after all, trespass invokes damages-which in this case was general damages rightly awarded.
The appeal against the decision has no basis in law. Consequently, I hold that this appeal be and it is accordingly dismissed.
The decision of the trial court is affirmed by me with an order for the costs of N50,000 only against the Appellants and in favour of the Respondents.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother M.A. Danjuma JCA. I agree with his reasoning and conclusion that the appeal is completely without merit and must be dismissed. I abide by the order as to costs.
JOHN INYANG OKORO, J.C.A.: I read before now the Judgment of my learned brother Danjuma, JCA just delivered and I agree that this appeal is devoid of any merit at all. Consequently, I agree that it be dismissed. I subscribe to the order as to costs made in the lead judgment.
Appearances
Ayo Olarenwaju (Esq.)For Appellant
AND
Peter Ilegogie, with John Eboh Esq.,For Respondent