SUNDAY ABIONA v. ADELEYE OGUNJOBI
(2014)LCN/7136(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of April, 2014
CA/I/132/2007
RATIO
LAND LAW: BURDEN TO ESTABLISH CLAIM BY CREDIBLE EVIDENCE
It is the settled law that in a claim for declaration of title to land, the Plaintiff has the burden to establish his claim by credible evidence. The first duty on the Plaintiff in such a circumstance is to lead evidence that will establish the identity of the land in dispute. Even where he has traced his genealogy accurately, but such genealogy is not linked to a definite parcel of land, which is the subject of the claim, there will be no parcel of land upon which the declaration can be tied to, as the declaration cannot be made in vacuum. In the absence of proof of identity of the land to which the declaration can be related, the declaration cannot be made. See Awote v. Owodunni (No. 2) (1987) 2 NWLR (pt. 964) p. 337 and Nwokidu v. Okanu (2010) 3 NWLR (pt. 1181) p. 362. Per HARUNA SIMON TSAMMANI, J.C.A.
LAND LAW: METHODS OF PROVING TITLE TO LAND
The Apex Court in a chain of cases has made it clear that there are five methods of proving title to land and one of those modes is by traditional evidence. The Appellant has adopted the traditional mode which with sufficient and credible evidence can rest title in the claimant. See Adewuyi v. Odukwe (2005) LPELR-165 (SC) @ page 15, Orlu v. Gogo Abite (2010) LPELR-2769 (SC) @ p. 10. Per MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
WHETHER THE CLAIMANT MUST ESTABLISH THE LINE OF SUCCESSION WHERE THE CLAIM TO LAND IS BASED ON TRADITIONAL HISTORY
It is the requirement of law, that where a claim to land is based on traditional history, as is the case, the line of succession must be established right up to the claimant of the disputed land.
(See: KALIO v. WOLUCHEM (1985) 1 NWLR (Pt 4) 616, OYADIJI V. OLANIYI (2005) ALL FWLR (PT 238) 1083 AT PARAS C-D). Per MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
JUSTICES:
MONICA BOLNA’AN DONGBAN – MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
SUNDAY ABIONA – Appellant(s)
AND
ADELEYE OGUNJOBI – Respondent(s)
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): On the 25th October, 2006, the Hon. Justice M. A. Dipeolu (J)., of the Ogun State High Court of Justice Holden at Ilaro Judicial Division, delivered a judgment against the Appellant as Plaintiff and in favour of the Respondents as Defendant. In this judgment the Plaintiff is referred to simply as the Appellant and the Defendant simply as the Respondent.
At the trial court, the Appellant claimed as per his writ of summons dated the 16th of August, 2004 (pages 1-2 of the record), and sought the following reliefs:-
(a) “A declaration that the Plaintiff is entitled to the statutory right of occupancy to that piece or parcel of land situate, lying and being at Eyekanse Village, Via Oke-Odan Ogun State.
(b) Injunction restraining the Defendant, servants, agents or privies or however described from further trespass on said Plaintiff’s land.”
The facts which culminated into this appeal is that the Appellant is alleged owner of the land situate, lying and being at Eyekanse Village, Via Oke-Odan acquired by his ancestor Abiona first settled in the land. The said Abiona came from Oyo. That the Respondent who was a tenant who had been dispossessed of the land disturbing the peaceful occupation of the land. The Respondents on the other hand claim ownership of the land and allege that they are the first settlers through their grandfather Thomenu who came from Hundo in the Republic of Benin.
That Thomenu was succeeded by his own father, Ogunjobi whom he also succeeded to become the owner.
Pleadings were filed and exchange, Exhibits tendered and witnesses were also called by both Parties.
At the close of the case, the trial court gave judgment against the Appellant. Dissatisfied with the decision, the Appellant filed a Notice of Appeal dated the 6th December, 2006 as contained at pages 51-55 of the records.
When the appeal came up for hearing on the 10th day of February, 2014, the learned Counsel each adopted their respective briefs of argument. Olu Akinsanya of learned counsel for the Appellant adopted the Appellant’s brief of argument dated 10th August, 2007 and filed on the same day but deemed filed on the 10th February, 2014. Counsel raised and argued 4 issues for determination as follows:-
1. “Whether the learned trial Judge was right in dismissing the Appellant’s claim on the ground that the identity of the land claimed by the Plaintiff is not clear.
2. Whether the learned trial Judge was right in dismissing the Appellant’s claims after having held that the Appellant proved his genealogy, and possession of the land in dispute.
3. Whether having rightfully held that there are contradictions in the Respondent’s claims to possession of the land in dispute, the learned trial Judge ought not to have upheld Appellant’s claims.
4. Whether the learned trial Judge rightfully concluded that Appellant’s family were not the first settlers in Eyekanse because they hold the title Osi Baale of Eyekanse.”
Ayodole A. Omoniyi of learned Counsel adopted and relied on the Respondent’s brief of argument dated 25th October, 2007 and filed on the same day but deemed filed on the 10th February, 2014. Counsel raised and argued 3 issues for determination different from those of the Appellant as follows:-
1. “Whether the Plaintiff could be said to have sufficiently proved the identity of the land in dispute.
2. Whether a Plaintiff will get judgment automatically relying on the weakness of the case of a Defendant who has no counter claim.
3. Whether an error of the court which does not substantially affect the case can lead to a reversal of the judgment.”
This appeal shall be determined on the issues put up by the Appellant. However, issues 2, 3 & 4 shall be taken together and shall be taken first.
Issue 2, 3 & 4
Learned counsel for the Appellant refers this court to page 46 line 15 of the record to the fact that the Appellant proved his genealogy and how he came about the land and also the holding of the trial Judge on the contradictions in the evidence of the Respondent and his witness as to who first settled in the land (page 48 line 20 of the record).
Counsel refers to the now too often cited five ways of proving ownership of land as
(a) By traditional evidence
(b) By production of document of title
(c) By acts of ownership such as selling, leasing, renting out or farming on the land
(d) Acts of long possession and enjoyment of the land
(e) By proof of possession of connected or adjacent land
Maintains that proof of any one of these ways is sufficient to sustain a claim of ownership. (Refers Idundun v. Okumagba (1976) 9-10 SC 227 @ 246, Ezewusim v. Okoro (1993) 5 NWLR (Pt. 294) page 478 @ 482, Balogun v. Akanju (1988) 1 NWLR (pt. 70) 301 @ 302) Counsel further submits that the learned trial Judge having held that the Appellant proved his traditional history, should have proceeded to grant the Appellant’s claim of declaration of title.
Counsel refers this court to the findings of the learned trial Judge on the contradictory evidence given by Dw2 as to how the Respondent got the land at page 48 lines 5-15 & 23 and submits that the Appellant effectively traced his title to a person whose title to ownership has been established, and the onus thereby shifts upon the Respondent to show that his own possession is of such a nature as to oust the claim of the Appellant as an original owner. (Refers Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 @ 329)
Counsel further submits that the contradictory evidence of Respondent witness (DW2) to Respondent possession of the land in dispute, is enough to find in favour of the Appellant claims.
In response to Appellant’s issues 2 & 3. Counsel for the Respondent concedes to the modes of proving title as contended by the Appellant but contends that the proof and acceptance of a traditional history simpliciter will not of itself entitle the Appellant to an order of declaration in his favour where the land is uncertain and vague as the order cannot be made in vacuo but must relate and attach to a definite land.
Counsel submits that the Appellant’s claim is for a declaratory order and the Appellant bears the burden of proving that he is so entitled and cannot be relieved of this duty on account of an admission by the Respondent that the burden is no way mitigated by the Respondent election to blow a muted trumpet or to remain silent. That the Appellant’s case is still liable to dismissal if it is self-defeating, or unacceptable and the court is not obliged to act on it. (Refers Atra Industries Ltd v. N.B.C.I (1998) 3 SCNJ 97, 129, Ogundipe v. A-G Kwara State (1993) 8 NWLR (pt. 313) 558 @ 563)
Counsel also submits that the Appellant’s claim is based on the first settlement of Abiona on the land in dispute but unable to identify the land and that there are contradictions between what was pleaded and evidence led as to who was the first person to settle on the land which makes his case shaky and incapable of sustaining any relief. See paragraph 4 of the statement of claim @ page 3, his admission on page 20 lines 24-25 & the findings of the court at page 46 of the record.
Counsel further submits that the Appellant should rely on his own case and not on the weakness of the Respondent’s and can only rely on the evidence of the Respondent which favour his case.
Issue 4
Learned Counsel submits for the Appellant that the learned trial Judge misdirected himself as to the fact when he concluded at page 47 of the record that the plaintiff and his witnesses agree on the point that the Abiona family hold the title of Osi Baale of Eyekanse, with this fact one can conclude that Abiona family was not the first settler at Eyekanse. (Refers pages 18, 25, 27 of the record). That the evidence of the Appellant and his witness that the Appellant’s family hold the title of Osi Baale of Eyekanse was to further buttress that Appellant’s family as the first settlers in Eyekanse.
Counsel submits that there was no other evidence led before the lower court that the first settlers in Eyekanse hold another title apart from Osi Baale and whether Osi Baale of Eyekanse is a Chieftaincy associated with another custom in Eyekanse.
Counsel further submits that the finding of the lower court on this issue was not supported by evidence led before the lower court and that the Judge cannot suo moto raise and make use of an issue not before the court (Refers Akiku v. Oduntan (1992) 2 NWLR (Pt. 222) pages 210-223, Ransome Kuti v. A-G Federation (1985) 2 NWLR (pt. 6) page 211, Oyedeji v. Akinyele (2000) FWLR (pt. 77) page 970, Onu v. Idu (2006) 9 MJSC page 200, Atolagbe v. Shorun (1985) 4 SC 250, Adimora v. Ajufo (1988) 3 NWLR (pt. 80) page 15).
In response to issue 4, the Respondent learned Counsel submits that that the trial court was right to have held that the Abiona family were not proved to be the first settlers and refer this court to the evidence of PW3 @ page 20, PW4 @ page 22 of the record. That the fact that the trial court gave a wrong reason for arriving at a correct and sound decision upon the evidence adduce will not result in the this court interfering with its decision.
Counsel further submits that there is contradictory evidence as to who first settled on the land in question.
Contrary to the submission of the learned trial Counsel for the Appellant from paragraph 4.12 – 4.17, as the finding of the learned trial Judge his lordship actually held that both parties had established a genealogy of presence on the land. His lordship however admitted to being confused by the testimonies of the witnesses of both parties. The learned trial Judge found that the evidence of their witnesses “contain some contradictions” @ pages 46-48 of the records as follows:-
“…Plaintiff in his evidence in chief said his ancestor Abiona was the first settler at Eyekanse and under cross-examination he said Dokunmu was the first settler and not the defendant family.
PW1 claimed to know one Joseph Oyelekan – the Bale of Eyekanse and that Oyelekan family was granted land and the Chieftaincy title by Dokunmu family.
PW2 claimed to know a place called Ago-Oba which is the property of Dokunmu’s family on which Oyelekan family are tenants.
PW3 confirmed that Dokunmu was the first settler at Eyekanse.
The question which remains unanswered is who actually was the first settler at Eyekanse? Was it Abiona, Oyelekan or Dokunmu? PW1 a member of Dokunmu family admitted that Oyelekan family also produce Bale, though he said Oyelekan family was given land and the Chieftaincy title by Dokunmu. This assertion does not sound plausible, but that is not the issue before the Court….
The defendant’s only witness is a member of the Oyelekan family. He said the land in dispute was given to the defendant’s ancestor Thomenu, an Egun man by Oyelekan, his own ancestor – the first settler at Eyekanse. He said further that Dokunmu and Oyelekan families share boundaries with Abiona.
He also said the defendant’s house is beside Oyelekan’s house, but it was not Oyelekan’s family that gave Ogunjobi – the defendant the land on which he built the house.
The evidence of the witness is not clear. In one breath he said the land in dispute was given to the defendant’s ancestor by his own ancestor Oyelekan; in another breath he said the defendant’s house is beside Oyelekan house but the land on which the house is built was not granted to the defendant by Oyelekan family. He said the Oyelekan family share boundary with Dokunmu family.
It is clear that there are material contradictions in the evidence of the defendant and his witness as to the first settler of Eyekanse and how the defendant came about the land in dispute. This material contradiction I hold is fatal to the defendant’s case.
The logical conclusion from these pieces of evidence is that the defendant’s house is not on the land granted to his family by the Oyelekan, and so the land in dispute is not clear….”
It is the finding of the learned trial Judge that neither the Appellant’s nor the Respondent’s ancestors were the originators of the land in question.
That being the case, the Appellant who initiated the claim has the burden to clearly identify the piece of land in dispute. The Appellant failed to do this. He named one boundary neighbor and the witness he called did not help his case. The learned trial Judge concluded that the Appellant as Plaintiff failed to effectively and clearly identify his piece of land. Thus, although the Appellant had nicely traced his genealogy as did the Respondent, he was unable to clearly identify the piece of land he lays claim to. In accordance with the principles of law his lordship of the trial Court found it difficult to proceed any further than dismiss the case of the Appellant as Plaintiff.
The implication of the decision of the learned trial Judge is that the Appellant who alleges and has burden of proof, (see Section 135 (2) of the Evidence Act 2011) failed to lead credible evidence to show that there exists a piece of land and which title vests in him.
It is the requirement of law, that where a claim to land is based on traditional history, as is the case, the line of succession must be established right up to the claimant of the disputed land.
(See: KALIO v. WOLUCHEM (1985) 1 NWLR (Pt 4) 616, OYADIJI V. OLANIYI (2005) ALL FWLR (PT 238) 1083 AT PARAS C-D)
Issue 1
Learned Counsel for the Appellant submits that the learned trial Judge erred in law when he dismissed the Appellant’s claims on the ground that the Appellant did not prove conclusively the identity of the land in dispute with sufficient particularity (page 49 of the record) and that the fact that they gave the land different names is immaterial. (Refers Makanjuola & Anor v. Chief Balogun (1989) 5 SCNJ @ page 42, Alhaji Aromire v. Awoyemi (1922) SC 1)
Counsel then submits that where parties are agreed as to the location of the land in dispute, no further proof and survey plan is necessary. Counsel placed reliance on the cases of Chief Awote v. Owodunni (1987) NWLR (Pt. 57) page 210 @ 215, Kwadzo v. Adejei (1944) 10 WACA 174, Akpagbue v. Ogu (1976) 6 SC 63.
Counsel refer this court to the testimonies of PW1-PW4 and the testimony of the Respondent under cross-examination at pages 18-23 and page 27 of the record for this appeal, all to the effect that the land in dispute is at Eyekanse and Dokunmu family are boundary men to the land in dispute. That there was consensus as to the location of the land which was never contested by the Respondent.
In response, learned Counsel for the Respondent submits that the identity of land in an action for declaration of title to land is very fundamental and the onus is on the Appellant seeking the declaration to establish the precise identity of the land in dispute. (Refers Baruwa v. Ogunsola 4 WACA 159). That the identity becomes an issue to be tried where the Respondent dispute specifically in his statement of defence the area and size of the land as in paragraph 20 @ page 20 of the record.
(Refers Gbadamosi v. Dairo (2007) 1 SC (Pt. II) 151 @ 104)
Counsel also submits that the Appellant apart from proving the location, is expected to prove the area and size of the land claimed as judgment can only be entered for a definite and ascertainable parcel of land. (Refers Arabe V. Ogunbiyi Asanlu (1980) 5-7 SC 78 @ 94, Dada v. Dosunmu (2006) 12 MJSC 115 @ 141-142)
Counsel further submits that where a party’s case as that of the Appellant is based on oral description, the burden of proof demands a clear identity of the land, the boundaries, extent and the area of land in which the land relates. That oral evidence of the Appellant must be such that any surveyor acting on such description can produce an accurate plan of the land.
Reliance is placed on the case of Kwapzo v. Adjei (1944) 10 WACA 274 approved and applied by the Supreme Court in Elias v. Omobare (1982) 5 SC 25 @ 57-58.
Counsel also refers this court to the testimonies of Appellant, PW1, PW2 & PW4 at pages 4, 18-21 of the record which the learned counsel submits vaguely described the land in dispute.
Counsel urges the court to dismiss the Appellant’s claim for non-disclosure of the proper identity of the land in dispute with certainty. (Refers Okpaloka v. Ben Umen (1976) 10 SC 200 @ 293, Akinyade v. John Adojutimi (1975) 5 WACA 253 @ 259)
The Apex Court in a chain of cases has made it clear that there are five methods of proving title to land and one of those modes is by traditional evidence. The Appellant has adopted the traditional mode which with sufficient and credible evidence can rest title in the claimant. See Adewuyi v. Odukwe (2005) LPELR-165 (SC) @ page 15, Orlu v. Gogo Abite (2010) LPELR-2769 (SC) @ p. 10.
On identity of land, a party who seeks a declaration of title has the onus of showing with certainty excepting where parties know the land, the identity and the location of the land in dispute. There must also be shown clearly the boundaries and features on them which mark out the land failing which his claim must fail.
The case of Makanjuola & Anor v. Chief Balogun (1989) LPELR- 1827 (SC) relied upon by the Appellant does not support the case at hand. The Apex Court held that @ P. 16 that
“where the parties, by the evidence adduced, both oral and documentary, are ad idem, on the identity of the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called…” xxx
In the instant appeal, the identity of the land has been put in issue by the Respondent in his statement of defence as to the size and location (pages 7 of the record). When identity is raised as in the instant case, the courts tacitly accept that it is a ritual in land cases for the person who seeks the declaration of title to prove the features on the boundary and call all boundary men in proof of the identity of the land. See Anyanwu & Ors v. Uzowuaka & Ors (2009) LPELR-515 (SC) @ 34-35, Odunze & Ors v. Nwosu & Ors (2007) LPELR-2252 (SC) @ p 25. In a declaration of title, the land must be ascertained and sufficiently identified in such a way that a surveyor can produce an accurate plan from the description. See Ogedengbe & Ors v. Balogun & Ors (2007) LPELR – 2297 (SC) @ P. 9
In the case of Imah & Anor. v. Okogbe & Anor. (1993) LPELR-1497 (SC) @ p. 18-19, my lord Adio JSC (of blessed memory) held that:-
“…Ascertainable boundaries of the land in dispute must be established…the claim of a plaintiff who is claiming a declaration of title will be dismissed if he fails to prove the boundaries or the identity of the land in dispute”
The Appellant merely mentioned the name of Dokunmu family as his boundary man without stating if he is the boundary man from the four square corners of the land in dispute or from which of the angle. In the case of Ogedengbe & Ors v. Balogun & Ors (2007) (supra) @ p. 31-31 my lord Onnoghen JSC has this to say on identity of land:-
“it is also settled that the identity of the land in dispute is usually established by identifying the boundary features or marks and the people with whom the claimant shares the boundaries of the said land with these features are usually established at the trial by calling evidence of the people who claim the land as theirs as well as evidence of those who share common boundaries with the said land…”
Similarly my lord Tabai JSC in the case of Ekpemupolo & Ors v. Edremoda & Ors (2009) LPELR-1089 (SC) @ P. 26-27 propounded that;
“…that a declaration of title to a piece or parcel of land can only be granted if the definite precise and accurate boundaries of it are established. And the onus of proof lies on the plaintiff who seeks a declaration of title to land and for an injunction to establish with certainty and precision, the area of land to which the claim relates…”
Ogbuagu JSC @ p. 36 also opined that;
“the land which it relates must be ascertained with certainty, the test being whether a surveyor, can, from the record, produce an accurate plan of such land i.e. the need for a plan.”
(See Nwokorobia v. Nwogu & Ors (2009) LPELR-2127 (SC))
The learned trial Judge was properly guided by precedent as noted above when his lordship held as follows at page 49 of the record that:-
“…unfortunately, the identity of the land being claimed by the plaintiff is not clear. The description of the land in the statement of claim and evidence of the plaintiff and his witnesses are very vague, only one boundary man was mentioned. The exact location of the land and the precise area to which his claim relates were not proved thereby failing in his duty for his claim of title of ownership to the land. See Agbinifo v. Airwereoba (1988) 1 NWLR (Pt. 70) 325 @ 329.
Failure of the plaintiff to prove conclusively the identity of the land he claims is fatal to his case.
The law …a declaration of title to land is given, the first duty of the claimant is to establish quite clearly, the area of land to which the claim relates. The boundaries of the land to which the claim relates must be ascertained with a degree of precision and certainty, the test being whether a surveyor can from the record of proceedings produce a plan showing accurately the piece or parcel of land to which a degree of title has been given…
In the circumstance, I hold that the plaintiff failed to identify the disputed land and so failed to discharge the burden of proof placed on him.”
Where a plaintiff in an action for declaration of title, fails to prove the boundaries of the land he is claiming, he has failed by that omission, to prove his case and the proper order which the court should make in such circumstances, is usually one of dismissal of the claim.
I find it difficult to interfere with the findings and decision reached by the learned trial Judge as to the identity of the land.
This appeal lacks merit and is hereby dismissed. The decision of the Ogun State High Court per his lordship Hon. Justice M.A. Dipeolu (J) is hereby affirmed. A cost of N30, 000.00 is hereby awarded to the Respondent and against the Appellant.
CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment delivered by my learned brother, M. B. DONGBAN-MENSEM, J.C.A. I am in agreement with his Lordship’s decision dismissing the appeal. I dismiss same and abide by the order made as to costs.
HARUNA SIMON TSAMMANI, J.C.A.: I was privileged to read in advance the judgment delivered by my learned brother, M. B. Dongban-Mensem, JCA.
It is the settled law that in a claim for declaration of title to land, the Plaintiff has the burden to establish his claim by credible evidence. The first duty on the Plaintiff in such a circumstance is to lead evidence that will establish the identity of the land in dispute. Even where he has traced his genealogy accurately, but such genealogy is not linked to a definite parcel of land, which is the subject of the claim, there will be no parcel of land upon which the declaration can be tied to, as the declaration cannot be made in vacuum. In the absence of proof of identity of the land to which the declaration can be related, the declaration cannot be made. See Awote v. Owodunni (No. 2) (1987) 2 NWLR (pt. 964) p. 337 and Nwokidu v. Okanu (2010) 3 NWLR (pt. 1181) p. 362.
In the instant case, the oral description of the land in dispute was far below the standard required by law. It was vague and therefore could not sufficiently describe the land in such a way that a surveyor can from the record of proceedings, produce a plan showing accurately the parcel of land to which the declaration could be related. The identity of the land having not been proved, the declaratory order sought automatically collapsed.
In the circumstances, I agree with the reasoning of my learned brother that this appeal is lacking in merit. It is hereby dismissed. The decision of the court below is hereby affirmed.
Appearances
Olumide Akinsanya For Appellant
AND
A. A Omoniyi For Respondent
