TYOSAR v. KACHINA
(2022)LCN/16523(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Monday, February 07, 2022
CA/MK/162/2011
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
FRANCIS TYOSAR APPELANT(S)
And
MACHIHI KACHINA RESPONDENT(S)
RATIO
FACTORS TO BE PROVED BY A PARTY RELYING ON TRADITONAL HISTORY TO PROVE HIS CLAIM OVER A DISPUTED LAND
It is discernible from the pleadings and evidence of the parties before the lower Court that they each relied on traditional history in their respective attempt to prove their claim over the disputed land. While relying on traditional history, the party is expected to plead and prove the following:
a. Who founded the land;
b. How the land was founded; and
c. Particulars of intervening owners through whom he claims.
See Oyekan vs. Oyewale (2012) All FWLR Pt. 623, pg. 1991 at 2006; Adesanya vs. Aderonmu (2000) LPELR-145(SC); Anukam vs. Anukam (2008) 1-2 SC. 34; Nneji vs. Chukwu (1996) 10 NWLR Pt. 478, pg. 265; Odofin vs. Ayoola (1984) LPELR-2227(SC). PER JOMBO-OFO, J.C.A.
THE POSITION OF LAW ON THE TORT OF FALSE IMPRISONMENT
The tort of false imprisonment involves the unlawful, illegal and unjustifiable restraint of a person’s right and liberty to move about freely. See Afrilec Ltd. vs. Lee (2013) 6 NWLR Pt. 1349, pg. 1, 21. To sustain the complaint the plaintiff has a legal burden to show that the report made by the defendant is false, frivolous, without legal foundation and therefore actuated by malice. See U.A.C. (Nig.) Plc. vs. Sobodu (2007) 6 NWLR Pt. 1030, Pg. 368 at 394-395; Isheno vs. Julius Berger Nig. Plc. (2008) 2-3 SC., Pt 11, pg. 78, 90; and Bayol vs. Ahemba (1999) 10 NWLR Pt. 623, Pg. 382 SC. PER JOMBO-OFO, J.C.A.
WHETHER OR NOT A PARTY SEEKING DELCARATORY RELIEFS MUST SUCEED ON THE STRENGHT OF HIS OWN CASE
The law is trite that a party seeking declaratory reliefs must succeed on the strength of his own case and not on the weakness of the defence, if any. He has an obligation to prove his claims to the satisfaction of the Court. See the case of MTN V. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR-47042(SC), OKOYE VS NWANKWO (2014) LPELR-23172 (SC), KWAJAFFA & ORS. VS B.O.N. LTD. (2004) 13 NWLR (PT 889) 146 and EMENIKE VS P.D.P (2012) 12 NWLR (PT. 1315). PER NIMPAR, J.C.A.
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
Generally, there are five ways of proving title to land and both parties in this case relied on traditional history in proving their titles however, from the record before the Court, the respondent was able to prove his root of title, also pleaded and proved the root of title of his grantors sufficiently for his claim to succeed as required by law as in the case of AWODI & ANOR V. AJAGBE (2014) LPELR-24219(SC) and UKAEGBU V. ONWUBORO (2014) LPELR-24429(CA) wherein the Court held that
“On what a party relying on traditional history is expected to plead and prove in order to establish his root of title and accordingly declaration of title. “It is trite that a party who is relying on traditional history must specifically plead and prove the following before the trial Court. (a) Who founded the land? In what manner was the land founded?; and (c) The names and particulars of successive owners through whom he claims.”
See also the cases of AKINLOYE V. EYIYOLA (1968) NMLR 92, MOGAJI V. CADBURY NIG LTD (SUPRA), OLUJINLE V. ADEAGBO (1988) 2 NWLR (PT. 75) 238, LAWAL V. OLUFOWOBI (1996) 12 SCNJ 376, OKOKO V. DAKOLO (2006) 14 NWLR (PT.1000) 401 S.C. IBIKUNLE V. LAWANI (2007) 3 NWLR (PT.1022) 580 and BALOGUN V. AKANJI (2005) 10 NWLR (PT.933) 394. PER NIMPAR, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment and orders of Benue State High Court holden at Katsina-Ala (hereinafter the lower/trial Court) in suit No. KHC/34/2005, presided over by Hon. Justice M. A. Ikpambese, J., and delivered 15th March, 2010.
The appellant as plaintiff sued the respondent as defendant at the lower Court seeking as follows against him:
1. Declaration of title to plot No. 10 commercial and residential plots Nos. 465 and 466 situate at Gbor settlement area.
2. An order ejecting the defendant therefrom.
3. An order of permanent injunction restraining the defendant, his heirs, servants and agents howsoever tampering with the aforementioned plots. (See pages 5–6 of the record of appeal).
The respondent on his part and by his amended statement of defence and amended counter-claim prayed the Court as follows against the appellant:
a) A Declaration that the 5 plots of land at Gbor settlement area known as plot (sic) 9, 10, 464, 465 and 466 belong to the defendant/counter claimant.
b) An order of Court revoking all title documents issued by Katsina-Ala Local Government in favour of Mr. Francis Tyosar (Plaintiff/counter Defendant) in respect of the piece of land at Gbor settlement Area known as plots 9, 19, 464, 465 and 466.
c) An order of perpetual injunction restraining the Defendant (Katsina-Ala Local Government) or her agents from further issuance of title documents in respects (sic) of the 5 plots of land in dispute to the plaintiff/counter Defendant (Mr. Francis Tyosar). A declaration of customary right of occupancy in favour of the Defendant/counter claimant over the 5 plots of land situate at Gbor, Plot Nos. 9, 10, 464, 465, and 466.
d) An order of Court directing the defendant (Katsina-Ala Local Government) to issue title documents to the Defendant/counterclaimant (Mr. Mchihi Kchina) in respect of plots Nos. 9, 10, 464, 465 and 466.
e) An order of perpetual injunction restraining the Plaintiff/counter Defendant (Mr. Francis Tyosar) from further trespassing on plots Nos. 9, 10, 464, 465 and 466 at Gbor Settlement Area.
f) The sum of N500,00 (Five Hundred Thousand Naira) as general damages against the plaintiff/counter Defendant for false imprisonment and trespass to the plots Nos. 9, 10, 464, 465 and 466 at Gbor Settlement Area.
g) The sum of N162,000.00 against the Plaintiff/counter Defendant as special damages for building materials and the building destroyed by the plaintiff/counter Defendant. (See pages 112–113 of the record of appeal).
The appellant’s reply/defence to the respondent’s amended statement of defence together with amended counter-claim is as set out on pages 118–120 of the record of appeal.
STATEMENT OF MATERIAL FACTS
The subject matter of the dispute between the appellant and the respondent is in respect of plot Nos. 9, 10, 464, 465 and 466 lying and situate at Gbor Settlement Area, Katsina-Ala Local Government Area of Benue State. The case of the appellant is that in or about 1994 and upon his application, the Lands and Survey Department of the Katsina-Ala Local Government plotted the 5 plots of land consisting of two commercial plots and three residential plots and allocated same to him. Plot Nos. 9 and 10 are the commercial plots while the rest are the residential plots. Appellant paid for the five plots. A Certificate of Occupancy No. 02056 dated 11th April, 1996 id est Exhibit ‘1’ was issued to him in respect of plot No. 9. In respect of Plot No. 465, two Departmental receipts and allocation paper collectively admitted in evidence and marked Exhibit ‘2’ were issued to him. As regards Plot No. 466, allocation paper and two Departmental receipts also collectively admitted in evidence and marked Exhibit ‘3’ were equally issued to the appellant. The appellant allegedly took possession of the five plots and started a Nursery School thereon which later flopped. As the appellant was about to develop plot No. 10, the respondent allegedly came up that the land comprising the 5 plots belongs to him. Both parties referred the matter to the Katsina-Ala Local Government, who by way of an amicable settlement of the dispute resolved that though the plots belong to the appellant, but that he should release plot Nos. 9 and 464 to the respondent, while 465 and 466 be registered in the name of the appellant. The appellant contends that he consented to the concession of plots 9 and 464 to the respondent for the sake of peace.
On 16th April, 2005, the respondent was said to have trespassed into plot No. 465 by tipping sand on same. On 2nd May, 2005, the respondent went further to trespass on to plot Nos. 466 and destroyed vegetables planted thereon by the appellant. The respondent also hurriedly built thatched huts on each of plot Nos. 465 and 466 without the consent of the appellant.
The appellant further alleged that he built a three (3) room structure on plot Nos. 10 and two (2) thatched houses, one orange stand and a resting hut. He also laid a foundation of a toilet and bathrooms on plot Nos. 466.
It is against the foregoing background facts that the appellant took out a Writ of Summons on 9th May, 2005 against the respondent.
On the part of the respondent, his case is that the Shomgba family in Mbagwa sub-kindred upon his request to it agreed and gave him the land by the left hand from Gbor along Katsina-Ala to Zaki Biam road. The land was given to the respondent vide a Memorandum dated 7th February, 1981. The document is in evidence as Exhibit ‘4’. It is this same land granted to him vide Exhibit ‘4’ that the Katsina-Ala Local Government entered upon at the instance of the appellant and demarcated same into plot Nos. 9, 10, 464, 465 and 466. The respondent asserts that the plotting of the land was without his consent. The respondent erected a batcher, constructed two culverts and kept two drums of petrol filling station on the land. When the appellant trespassed on the land in 1994, the Shomgba family warded him off. In 2004, the appellant again encroached on the land and deposited materials to build on the land and the respondent protested. He made a report to the Katsina-Ala Local Government and a committee was set up to resolve the matter. The committee found that the land belong to the respondent but requested him to concede plot Nos. 10 to the appellant. After the settlement, the appellant went and connived with the staff of the Katsina-Ala Local Government to register all the plots in his name. Respondent said he paid all the necessary fees to register the plots in his name as resolved but was frustrated by the Katsina-Ala Local Government. The respondent alleged that the appellant continued to use thugs and Police to arrest and harass him. The respondent said he reported the matter to Ter Katsina-Ala and Logo pursuant to which a settlement meeting was convened on 6th December, 2005 with the elders of Gbor in attendance. The traditional arbitration confirmed that the land in issue belongs to the respondent. Exhibits ‘7’ and ‘8’ are Minutes of the Katsina-Ala Local Government Committee that looked into the dispute and the Minutes of Resolution of Dispute by the Ter Katsina-Ala respectively.
It was against the background of the foregoing that the respondent counter-claimed against the appellant as the 1st defendant and the Katsina-Ala Local Government Council as the 2nd defendant to the Counter-Claim.
In a considered judgment of the learned trial Judge delivered 15th March, 2010, he granted the claims of the appellant to the extent of plot No. 10 and dismissed the rest of the reliefs sought by him. In allowing the defendant’s counter claim, the learned trial Judge granted all the reliefs sought by him as well as N100,000.00 (One Hundred Thousand Naira) which was awarded to him as damages for false imprisonment. The relief for special damages set out in paragraph 8 (h) of the amended counter claim was dismissed. (See particularly pages 56–57 of the record of appeal).
Piqued by the judgment, the appellant filed a Notice and Grounds of Appeal at the lower Court on 8th June, 2010. (See pages 145–149 of the record of appeal). On 16th January, 2019, the appellant applied for and was granted the leave of this Court to amend his Notice of Appeal. Upon another application moved 8th April, 2019, the appellant was granted the leave of Court to further amend their notice of appeal. The said Further Amended Notice of Appeal which was filed 5th March, 2019 was deemed properly filed and served 8th April, 2019. The record of appeal in this appeal was compiled and transmitted out of time to this Court on 15th November, 2011 but deemed properly transmitted on 7th November, 2018. An Additional record of appeal compiled and transmitted 15th January, 2019 was deemed properly transmitted on 16th January, 2019.
In compliance with the rules and practice of this Court the parties filed and exchanged briefs of argument. The appellant’s brief filed out of time on 1st March, 2019 but deemed properly filed on 8th April, 2019, was settled by N. E. Tsobaza, Esq. The respondent’s brief also filed out of time on 30th December, 2020 but was deemed properly filed on 26th October, 2021, was settled by Mathew Atonko, PhD.
From the 9 (nine) grounds of the Further Amended Notice of Appeal, the appellant crafted the following 3 (three) issues for determination:
1. Whether the respondent who relied on grant as his root of title pleaded and proved the root of title of his grantors and whether Exhibit 4, the instrument of the said grant clearly described the boundaries and identity of the land claimed and the (sic) whether the said document is admissible in law. (Grounds 1, 2, 3, 7 and 8).
2. Whether the respondent pleaded and proved the tort of false imprisonment to warrant to (sic) award of N100,000 general damages awarded to him by the Court against the appellant (Ground 6).
3. Whether the judgment of the Court which was written and signed on a date other than on the day it was delivered is valid in law. (Ground 9).
The respondent though he adopted the three issues as formulated by the appellant but with slight modifications hence they read as follows:
i. Whether the trial Court was right to have dismissed the appellant’s case of declaration of title over the plots of land in dispute, save one, and entered judgment for the respondent. (Grounds 1, 2, 3, 7 and 8).
ii. Whether the trial Court was right to have found the tort of false imprisonment proven against the appellant by the respondent to warrant the award of N100,000 general damages in favour of the respondent against the appellant. (Ground).
iii. Whether the judgment of the trial Court is valid in law. (Ground 9).
Since the appellant is the one wearing the shoes that are pinching him, I feel the urge to adopt the issues donated by him and they are so adopted in determining this appeal.
ISSUE 1 (ONE)
Whether the respondent who relied on grant as his root of title pleaded and proved the root of title of his grantors and whether Exhibit 4, the instrument of the said grant clearly described the boundaries and identity of the land claimed and the (sic) whether the said document is admissible in law.
In arguing this issue, the appellant upon referring to paragraphs 6, 14, 15 and 16 of the respondent’s amended statement of defence, went further to x-ray the evidence of the DW1, DW2, DW3, DW4, DW5 and DW6 in that regard. Appellant advocated that though each of the DW1 to DW5 testified that the DW1 owned the land and that it was made as a grant to the respondent in 1981, yet none of them gave evidence as to how the land came to be vested in the family of the grantor. Appellant contended that the respondent must plead and prove the title of the grantors to show that the land was indeed legally vested in them to be able to give him title capable of being ratified by the Court. See Nruamah vs. Ebuzoeme (2013) 53 Pt. 2 NSCQR, pg. 88 at 113. Relying on the case of Ogunleye vs. Oni (1990) 2 NWLR Pt. 175, pg. 745 at 782, the learned counsel for the appellant contended that the mere production of Exhibit 4 by the respondent without pleading and proving the root of title of the grantor family did not amount to proof of grant and so the trial Court ought to have dismissed this case.
Appellant further submitted that the issue of registration of titles instrument is statutory and regulated by Section 15 of the Lands Registration Law, Cap 88, Laws of Benue State, 2004. He argued that the lower Court did not construe Exhibit 4 to be a document held under equity to prove payment of money because no money was exchanged. Rather that the lower Court held that it transferred a legal estate to the respondent. Appellant argued that Exhibit 4 having been held by the trial Court to be a registrable instrument and having not been registered, same ought to have been expunged from the record and no value should have been placed on it as done by the lower Court.
Appellant also argued that in the entire amended statement of defence, the respondent did not plead or prove the identity or boundaries of the land. Rather he adopted the description ascribed to the land by the appellant as numbered “plots” when such description is nowhere contained in Exhibit 4 which is the document upon which the respondent founded his claim. Relying on the case of Onwuama vs. Ezeokoli (2002)94 LRCN 246 at 257, the appellant submitted that the respondent had a duty not only to prove the identity of the land granted to him but its boundaries also. He argued that the parties were not agreeable on the ownership and location of the land as held by the trial Court. That the description of the land contained in Exhibit 4 was not the same with the title documents tendered by the appellant. That pursuant to the provisions of Section 128 of the Evidence Act, 2011, the trial Judge was duty bound to be restricted to Exhibit 4. That the reliefs sought by the respondent in his amended counter-claim had nothing to do with the description of land contained in Exhibit 4. The award made did not also reflect the land described in Exhibit 4, neither did the respondent admit that the land described in Exhibit 4 is the land on which he founded his claim. It was the appellant’s final contention under this issue that the respondent did not tie his claim to any verifiable piece of land but merely said that the land described as “plots” by the appellant was granted to him by the Shomgba family. The evidence presented did not discharge the standard of proof required of him by law. He urged on us to resolve issue 1 in favour of the appellant and dismiss the case of the respondent.
In the reverse the respondent submitted that the appellant appears not to have any grouse against the dismissal of his case by the trial Court hence his concentration on alleged weaknesses in the respondent’s case. Respondent urged therefore for a dismissal of the appeal as there appears not to be any basis for same.
In arguing the appeal, the respondent pointed out that both the appellant and the respondent relied on traditional history as proof of title over the land respectively claimed by them. Drawing from paragraphs 3 and 4 of the appellant’s statement of claim and paragraph 6 of the appellant’s reply/defence to the respondent’s amended statement of defence/counter-claim, the respondent submitted that appellant based his claim on mere grant of permission by the elders of Doki family. He argued that even at that, the Doki’s family by 1994 had lost control over the land in dispute to the Katsina-Ala Local Government. Respondent contended that apart from Exhibit 4 that he adduced cogent and conclusive evidence in proof of his case. He canvassed that paragraphs 6, 10, 11, 12, 13, 14, 15 and 16 of the amended statement of defence are graphic enough as to how the respondent became seized of the land in dispute.
Upon placing reliance on the case of Mohammed vs. Farmers Supply Co. Ltd. (2019) 17 NWLR Pt. 1701, pg. 187 at 215, paras. F-G, the respondent canvassed that Exhibit ‘4’ was a surplusage, given that the grant to the respondent was made under customary law which does not necessarily require to be in writing by law. Respondent argued that Exhibit ‘4’ was tendered as evidence to merely confirm and complement the positive evidence of grant already produced by the respondent.
Regarding the identity of the land claimed by him, the respondent submitted that the appellant made no dispute of the identity anywhere in his pleadings. Respondent added that the land in dispute is well known to the parties. He finally urged on us to resolve issue 1 against the appellant and in favour of the respondent.
RESOLUTION OF ISSUE 1 (ONE)
Whether the respondent who relied on grant as his root of title pleaded and proved the root of title of his grantors and whether Exhibit 4, the instrument of the said grant clearly described the boundaries and identity of the land claimed and the (sic) whether the said document is admissible in law.
It is settled law that in a case of declaration of title to land, the plaintiff (appellant) is to succeed on the strength of his own case and not on the weakness of the defence. See the cases of Obiaso vs. Okoye (1989) 2 NWLR Pt. 119, pg. 80; Anukam vs. Anukam (2008) 2 SCNJ 62 at 76; and Mohammed vs. Farmers Supply (KDS) Co. Ltd. (2019) 17 NWLR Pt. 1701, pg. 187 at 215, paras. F-G, where it was held that:
Where title to land is in issue, the plaintiff must succeed on the strength of his case by presenting credible evidence satisfactory to the Court, and not on the weakness of the defence. The result is that the Court is bound to first consider and decide upon the case of the plaintiff.
It is discernible from the pleadings and evidence of the parties before the lower Court that they each relied on traditional history in their respective attempt to prove their claim over the disputed land. While relying on traditional history, the party is expected to plead and prove the following:
a. Who founded the land;
b. How the land was founded; and
c. Particulars of intervening owners through whom he claims.
See Oyekan vs. Oyewale (2012) All FWLR Pt. 623, pg. 1991 at 2006; Adesanya vs. Aderonmu (2000) LPELR-145(SC); Anukam vs. Anukam (2008) 1-2 SC. 34; Nneji vs. Chukwu (1996) 10 NWLR Pt. 478, pg. 265; Odofin vs. Ayoola (1984) LPELR-2227(SC).
The meat of the appellant’s case lies in paragraphs 3, 4 and 7 of his statement of claim and then 6 of his reply to the defendant’s amended statement of defence/counter-claim and they are reproduced hereunder for ease of reference.
3. The plaintiff avers that in or about 1994 his elders (of Doki family) granted him permission to establish a Nursery school at Gbor settlement Area.
4. That the plaintiff in pursuance of that permission applied to the Katsina-Ala Local Government Lands and Survey for a piece of land.
7. The area plotted and given to the plaintiff consisted of five (5) plots; two commercial and 3 residential plots.
6. The plaintiff denies paragraph 19 of the Statement of defence and states that the Gbor community which the plaintiff is part of, had already given the area in dispute to the Local Government as a settlement area before the year 1994. By the year 1994, the elders had no control over the land and did not do any settlement between the parties over the land (emphasis provided).
It is thus discernible from the foregoing that the appellant, having been granted the permission to build a Nursery School by his Doki elders then applied to the Katsina-Ala Local Government for a piece of land, consequent upon which he was purportedly allotted 5 plots of land. It appears and I believe same that by 1994 when the appellant applied to the Katsina-Ala Local Government, the plots of land purportedly allotted to him by the said Local Government had been divested off the Doki family and thus vested on the said Katsina-Ala Local Government. Be that as it may, there appears to be a minor discrepancy in his evidence when as PW1, he answered as follows under cross-examination:
My claim is not that the five plots were given to me by Doki family but I only stated that the land in question belongs to Doki family. The land covering the five plots is situating in Mbayimaka sub-kindred as well as Doki family who are in Mbayimaka sub-kindred. ….. I took possession of the plot of lands in question in the year 1996 immediately the 2nd defendant granted same to me. [Emphasis mine. (See pages 31–32 of the record of appeal)].
It was against the backdrop of the above highlighted flimsy discrepancy as opposed to being a confused contradiction on the part of the appellant, as suggested by the respondent, that the learned trial Court went on to hold as follows:
The plaintiff has failed to link his title on the disputed plots to Doki family. No one from Doki family has come to Court to testify that the land belongs to that said family. It is trite that while no law compels Plaintiff to call all witnesses, it is incumbent on him to call every material witness if he desires to be awarded judgment… Thus, Doki family has no knowledge how the plaintiff who is one of them got the plots of the land in dispute. (See pages 51–52 of the record of appeal).
The land was vested in the Doki family until 1994 when same was transferred to the Katsina-Ala Local Government. The appellant failed to plead or lead evidence to show whether Doki family was the founder of the land in dispute and if so, how the family founded it as well as the intervening owners if any of the same before the purported allocation was made to him. He just said that the elders of Gbor were no longer in control over the five plots of land as at the time they were allotted to him by the Katsina-Ala Local Government. There is no gainsaying the fact that anyone who tries to trace his root of title to a family as is the case with the instant appellant, he has to establish how that family came to assume title over the land.
Be that as it may, the respondent on the other part and particularly at paragraphs 6, 11, 12, 13, 14 and 16 of amended statement of defence had pleaded as follows:
6. In further answer to Paragraphs 3–8, the defendant states that all the land covered by the five plots belong to him and he had customary right as he derived title from the original owners.
11. In further reply to paragraph 13 the defendant states that sometimes in 1980, Defendant went to one Amoakaa Ayoo and requested for a piece of land to establish his business.
12. That Amoakaa gave Defendant a piece of land belonging to Ayoo family in Mbayimaka sub-kindred but before Defendant could take possession of the land and do anything on it, one Terwua Nega, a member of Ayoo family protested and Defendant could not utilize the land.
13. The Defendant reported this development to Amoakaa Ayoo and Amoakaa directed Defendant to Gavgav Agbo, head of Shomgba family in Mbagwa sub-kindred to give defendant a piece of land.
14. The Defendant contracted (sic) Gavgav Agbo and demanded for a piece of land. Gavgav Agbo called all the elders of Shomgba family of Mbaimondo, Mbaibem in Mbagwa of Tongov district then, and informed them of Defendant’s request. The Defendant was given a piece of land by the Shamgba family in Mbagwa sub-kindred by the head of the family, Gavgav Agbo with the consent of all the elders on 2/2/1981.
16. The Defendant states that before the land was granted to Defendant, the piece of land referred to as plots 9, 10, 464, 465 and 466 belong to the Shomgba family who granted it to the Defendant and the Shomgba family had been farming on the land for time immemorial and they inherited the land from their forefathers.(See pages 103–105 of the record of appeal).
Respondent testified in line with the foregoing in substantiation of his claims. The lower Court had the privilege of viewing Exhibit ‘4’ which exhibit is not before this Court and the same was admitted in evidence and acted upon as further evidence of the grant of the land in dispute to the respondent. The appellant is not unmindful of this Exhibit 4 hence his submission that the mere production of same by the respondent without proving the root of title of the grantor’s family will not avail the said respondent. See the case of Ogunleye vs. Oni (1990) 2 NWLR Pt. 175, pg. 745, 782, per Nnaemeka-Agu, JSC., (of blessed memory held:
…. But it would be wrong to assume, as the learned trial Judge obviously did in this case, that all a person who resorts to a grant as a method of proving his title to land needs to do is to produce the document of grant and rest in his case…. This Court has made it clear in several decisions that if a party bases his title on a grant according to custom by a particular family or community, that party must go further to plead and prove the origin of the title of that particular family or community… See also Owhonda vs. Ekpechi (2003) 15 NSCQR 279 at 297.
Aside from Exhibit ‘4’, the respondent indeed led cogent and satisfactory evidence in proof of the fact that the Shomgba family made a grant of the land in dispute to him on 07/02/1981 under the headship of Gavgav Agbo. The learned trial Court was thus right to hold thus:
…. The 1st defendant counter claimant tendered in evidence exhibit 4 which elders of the Shomgba family of Mbaimondo Mbaibem in Mbagwa hamlet of Ubaya – Tongov granted him the land covering the plots in dispute. The said exhibit 4 is dated 2nd day of February, 1981 but executed on 7th February, 1981. (See page 53 of the record of appeal).
Respondent pleaded that he derived title to the land from the original owners which are the Shomgba family. These facts as averred therein were not in anywise controverted by the appellant. It is therefore deemed admitted by the appellant that the Shomgba family founded the land in dispute and that same was subsequently granted to the respondent. Much as the respondent did not go further to show how it was founded, whether by conquest or peaceful settlement, that lacunae will be plugged in his favour bearing the position of the law that where evidence called by a party is neither challenged nor contradicted, the onus of proof on him is discharged on a minimum of proof and the Court is thereby required to act on the plaintiff’s unchallenged evidence. See Konwei vs. IGP (2007) All FWLR Pt. 391, pg. 1699 at 1707, para. F.
Another matter that the appellant whipped up under this issue is whether Exhibit ‘4’ tendered by the respondent was registered. The learned counsel for the appellant relied on Section 15 of the Lands Registration Law, Cap 88, Laws of Benue State, 2004 and the case of Usman vs. Kareem (1995) 2 SCNJ 158 at 164 to submit that Exhibit ‘4’ was an unregistered registrable instrument which ought not to have been admitted in evidence by the lower Court.
Section 15 of the Lands Registration Law of Benue State stipulates that:
Where an instrument affecting land has not been registered in accordance with the law, it is not admissible in any Court for the purpose of the determination of title of the holder.
To my mind, the above provision envisages a situation where the given instrument is the only mode of proof or determination of title of the holder. This is to say that the holder is relying entirely and exclusively on the instrument or document for the establishment of his title.
In this regard and for the said instrument to be effective and admissible the same has to have been registered in accordance with the law. In Usman vs. Kareem (supra) it was held that an unregistered instrument affecting land will not serve any purpose in resolving the issue of title in a land suit. Be that as it may, a document granting to a party a piece of land has by its terms turned into an instrument affecting land. See Ogbimi vs. Niger Construction Ltd. (2006) 4 SC., Pt. 1, pg. 110, 123. However, in the sale or transfer of land under native law and custom, the documents of the transaction do not require registration. See Timothy vs. Fabusuyi (2013) 1 NWLR Pt. 1335, pg. 406–407. Thus, an instrument is admissible when it is registered provided by itself it is meant to convey title over land. A document which is a land instrument can only confer title after registration.
The respondent had maintained the fact that the land in dispute was a grant to him by the Shomgba family under native law and custom. The nature of the transaction did not therefore admit of its reduction into writing. Exhibit ‘4’ in this vein is irrelevant to the determination of the grant or otherwise of the land in dispute to the respondent. As earlier noted in this judgment it cannot be said that the respondent relied on Exhibit’4’ as the foundation of his title, hence the prescription elucidated in the authorities of Romaine vs. Romaine (1992) 4 NWLR Pt. 238, pg. 650; and Akinduro vs. Alaya (2007) 30 NSCQR Pt. 1, pg. 601, 617 are not ascribable to it. The requirements arising from the authorities are:
a. Whether the document is genuine and valid;
b. Whether it has been duly executed, stamped and registered;
c. Whether the grantor had the capacity to make the grant; and
d. Whether it has the effect claimed by the holder of the instrument.
This then sums up the unassailable conclusion reached by the learned trial Judge on this issue and which conclusion reads as follows:
The third complaint against exhibit 4 is that the 1st defendant did not register it with the 2nd defendant. It is not in doubt that the 1st defendant did not register exhibit 4 with the 2nd defendant but the customary interest conveyed in his favour is not derogated by that very fact. There is no life span known to me, which a customary grant as in exhibit 4 could expire if not registered with the local government or any other appropriate authority. I see no tree for the wood in this complaint….[Underlining supplied for emphasis. (See page 54, lines 8–14 of the record of appeal)].
The admission of Exhibit ‘4’ in evidence by the lower Court has not added any flavour to the case of the respondent, more so as he was able by his traditional evidence, to substantiate his claim of customary grant to him by the Shomgba family. A customary grant would not necessarily depend on a registered instrument for same to be valid. The grant to the respondent which was effected under native law and custom did not require to be in writing. Exhibit ‘4’ was at best a surplusage which I believe was tendered as evidence to confirm and complement the positive evidence of grant already led by the respondent. The learned trial Judge obviously did not depend or rely on Exhibit ‘4’ in reaching his unassailable decision that non-registration of Exhibit ‘4’ did not in any way negate the customary interest conveyed to the respondent by the Shomgba family. Regarding the identity of the land in dispute – the respondent pleaded and led evidence touching on the boundaries and the identity of the land claimed by him. In paragraphs 14 and 15 of the amended statement of defence, which by virtue of paragraph 5 of the respondent’s amended counter-claim is a continuum of the said counter-claim, the respondent pleaded as follows:
14. … The grant was reduced into writing and the extent of the land was described as “The piece of land by the Roadside (Leftward from Gbor) along Katsina Ala to Z/Biam Road. The piece of land stretches from the stream across the road down to the old road and leads to the borders of our land with the Ayoo’s family land marked by a footpath (leading down to Lukul stream) between the Iron tree close to the road and Gemalina trees planted by Terwua Nege Ayoo”…
15. The Defendant states that it is this same piece of land granted to him by the elders as described in paragraph 14 above that the local government came and plotted as plots No. 9, 10, 464, 465 and 466 and the plaintiff is claiming as his own. (See pages 104 and 111 of the record of appeal).
The respondent vides their respective evidence on oath led evidence along the line of the foregoing pleading. The appellant in reply to the foregoing averments pleaded at paragraph 4 of his reply/defence to the amended statement of defence/counter claim averred as follows:
4. The plaintiff denies paras. 14–16 of the statement of defence and states that it is the same land the defendant made fruitless efforts to acquire as in paragraph 3 above that the defendant still refer to under the said paras. 14–16 of his defence. The land is located in Mbayimaka Sub-kindred and not in Mbagwa Sub-kindred. In addition, Terwua Nege who is since deceased and a member of the plaintiff’s family never witnessed a grant of this land to the defendant by anybody before he died. (See page 118 of the record of appeal).
By the foregoing reply to the averments of the respondent in paragraphs 14 and 15 of the amended statement of claim/counter claim, it is without doubt that the appellant is in tune with the land in dispute and as claimed by the respondent. The identity of the land in dispute will be in issue only where the defendant has made it so in his statement of defence or the plaintiff has made it an issue in his reply to the defendant’s statement of defence/counter claim. The appellant in the instant appeal is quite abreast with the land in dispute and as claimed by the respondent, more so as he continued to refer to it as the land in dispute. The position of the law is that where the area in dispute is known to both parties, the issue of proof of the same goes to no issue. See Onisese vs. Oyeleye (2008) All FWLR Pt. 6, pg. 1826 at 1871, paras. B–C; and Osho vs. Ape (1998) 6 SCNJ 139 at 154. The learned trial Judge was thus right in holding as follows:
“I wish to say that throughout the plaintiff’s pleading and evidence in Court no issue was raised as to the identity of the land or plots in question. The parties know the disputed land very well and in their evidence made references to structures and or features on the land. The five plots the plaintiff alleges were given to him all said to be covered by exhibit 4 which the family of Shomgba confirmed that they granted it to the 1stDefendant/Counter Claimant. (See page 53, lines 24–29 of the record of appeal).
It is indeed misleading for the appellant to submit that the respondent merely relied on the appellant’s description of the land as numbered plots. The respondent gave sufficient description of the identity and boundaries of the land claimed by him and the appellant was seised of same. I dare state that the appellant rather than lead evidence in proof of his claim, dissipated his time on picking loopholes and mostly irrelevant issues out of the respondent’s case.
At the end of the day, the respondent who relied on customary grant as his root of title pleaded and proved the root of title of his grantors sufficiently for his claim to succeed. Exhibit ‘4’ in the respondent’s case and which by its nature was not a registrable instrument was a mere surplus age to his case. Its admissibility in evidence did not add or subtract to the case of the respondent. Issue 1 (one) is therefore resolved in favour of the respondent and against the appellant.
ISSUE 2 (TWO)
Whether the respondent pleaded and proved the tort of false imprisonment to warrant to (sic) award of N100,000 general damages awarded to him by the Court against the appellant
Appellant submitted on this issue that the finding of the learned trial Court under this head is mutually inconsistent. He argued that if as found by the learned trial Judge that the appellant believed that he had a bona fide claim to the land, the fact that he is a police officer does not ipso facto make his report to the police an act of ‘harassment’ as held by the Court. Appellant submitted that it is on record that the respondent also reported the matter to the police. See Fajemirokun vs. CBN (2009) 37 NSCQR 1 at 11 per Ogebe, JSC., and Mukhtar, JSC. at pg. 19 thereof. Appellant further contended that the respondent failed to join the police as party in the action. That the law does not impose a duty to determine whether or not a case is civil in nature or not as that is the prerogative of the police. That the award of N100,000 in general damages in favour of the respondent is not sustainable and same should therefore be set aside.
Respondent on his side submitted that ‘a bona fide claim to land’ in dispute is not a defence to a tort of false imprisonment. On the meaning of false imprisonment, the respondent referred to the cases of Borno State Government vs. Ashieik (2007) All FWLR Pt. 357, pg. 1006 at 1012, para. B; Barau vs. Lehaba (1995) 1 NWLR Pt. 71, pg. 357 at 361; and Okonkwo vs. Ogbogu (1996) 5 NWLR Pt. 449, pg. 420. It was the further submission of the respondent that he pleaded facts relevant to establish the tort of false imprisonment against the appellant in paragraph 32 to paragraph 37 of the amended statement of defence. Respondent argued that as a police officer, the appellant knew or had reasons to know that there was no basis for his report to the police. He contended that the appellant used his position as a police officer to ensure that he was arrested and detained. Respondent urged on us to resolve issue 2 in favour of the respondent.
RESOLUTION OF ISSUE 2 (TWO)
The tort of false imprisonment involves the unlawful, illegal and unjustifiable restraint of a person’s right and liberty to move about freely. See Afrilec Ltd. vs. Lee (2013) 6 NWLR Pt. 1349, pg. 1, 21. To sustain the complaint the plaintiff has a legal burden to show that the report made by the defendant is false, frivolous, without legal foundation and therefore actuated by malice. See U.A.C. (Nig.) Plc. vs. Sobodu (2007) 6 NWLR Pt. 1030, Pg. 368 at 394-395; Isheno vs. Julius Berger Nig. Plc. (2008) 2-3 SC., Pt 11, pg. 78, 90; and Bayol vs. Ahemba (1999) 10 NWLR Pt. 623, Pg. 382 SC.
Now, the appellant believed that he had a bona fide claim to the land in issue, this we cannot take away from him. It was thus in his bid to defend and safeguard the claim that he resorted to going to the police, irrespective of the fact that he is a police officer himself. This act aligns with the decision in Fajemirokun vs. CBN (supra), where Ogebe, JSC., enunciated thus:
…. Generally, it is the duty of citizens of this country to report cases of commission of crime to the police for their investigation and what happens after such report is entirely the responsibility of the police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it was done mala fide….
Going further Mukhtar, JSC., in the same vein held inter alia at page 19 as follows:
…. As citizens of Nigeria, they have the choice to exercise their legal rights of placing their grievance before the police, being custodians of law and order and that is where their input stops. Whatever action the police takes thereafter is not solely their responsibility and they are not solely liable….the arrest, invitation and/or detention may have been caused by the steps taken by the respondents, but as I have said earlier on the respondents were exercising their legal rights to seek police intervention. Indeed no one can deprive any citizen of that right more so when there was good ground for the action taken by the police, …
The appellant first and foremost as a citizen of Nigeria was exercising his legal civic right by going to the police to lodge complaint of interference with his perceived right to the land in dispute. So also, was the respondent exercising his own civic obligation to himself when he likewise sought the intervention of the police in their case. The parties’ responsibility starts and ends with lodging their report with the police and nothing more. Whatever the police do or refrain from doing thereafter in terms of arrest and detention and/or investigation of any of the parties, was not for any of the parties to account for. Afortiori, having found and held that both parties were acting bona fide in laying claim to the disputed land, the bona fide claim of any of them, though particularly of the appellant, to the land and his reporting the matter to the police, cannot be faulted and or severed as the learned trial Judge tried to do. The learned trial Judge had at page 57, lines 3–12 of the record of appeal held that:
The plaintiff as a police officer knew or had reason to know that the dispute between him and the 1st defendant/counter claimant was purely civil. However, he caused the arrest and detention of the 1st defendant at Katsina-Ala Divisional Police with effect from the 26th to 28th May, 2005 and taken to State C.I.D. Makurdi and detained from 29th to 30th August, 2005. All these were a dispute over land.
Even though the plaintiff can be exonerated for trespass on ground of bona fide claim of right, he cannot on tortious act of false imprisonment. It was a conscious act of the plaintiff to enlist the police in L’espirit de corps to harass, arrest and detain the 1st defendant.
In this country, we have come of the age to stand and boldly condemn abuse of office as done by the plaintiff. Therefore the 1st defendant is entitled to general damages in respect of the false imprisonment caused at the behest of the plaintiff.(Emphasis mine).
The appellant to my mind ought not to be treated differently from the ordinary common man in the street of Nigeria who in defence of his bona fide claim of right to land resorted to the police. It is immaterial that he the appellant is also a police officer. It is then for the police to decide whether the complaint borders on criminality, in which case they resort to arrest and or detention of the suspect, or in the alternative advise the complainant to take out a civil action as the case may be against the adverse party. The law does not impose a duty on the appellant to determine for the police whether or not the case was civil in nature or otherwise. That is the prerogative of the police. I do not in the circumstances align myself with the holding of the learned trial Judge that the appellant is liable for the tortious act of false imprisonment. The fact that the appellant is a police officer does not ipso facto make his report to the police an act of harassment as opined by the learned trial Judge.
Having lodged a justifiable complaint, it was for the police if they saw the need, to effect arrest and/or detain the person complained against. As I noted a while ago, whatever the police do with the complaint lodged before them is outside the purview or powers of the complainant. In this regard and however much the complainant may have coerced the police, the latter is expected to act within the dictates of the law. Where they go off tangent, the cross will be theirs to bear. The police alone are answerable for any breach occasioned by their action of arrest and or detention of the respondent in this instant. I am saying that once a person’s rights to personal liberty and freedom of movement is curtailed by the police without the observance of due process, the tort of false imprisonment is said to be committed. As it were, although the police was not joined as a party at the trial, the verdict is that they acted ultra vies of their power by the wrongful arrest and detention of the respondent over a civil matter. However, since the police acted at the behest of the appellant, the justice of this case demands that the appellant bears the liability of paying damages for the wrongful act of the police.
The respondent had claimed N500,000.00 as general damages but the lower Court awarded N100,000.00 instead. I deem N100,000.00 as sufficient and appropriate award as general damages to the respondent and against the appellant. The award subsists. Issue 2 (two) is accordingly resolved in favour of the respondent and against the appellant.
ISSUE 3 (THREE)
Whether the judgment of the Court which was written and signed on a date other than on the day it was delivered is valid in law.
The appellant’s submission herein is that the judgment of the trial Court is invalid in law because it was written and signed on a date other than on the day it was delivered. The appellant relied on the provisions of Section 81 of the High Court Law, Cap 75 Laws of Benue State, 2004; Order 35 Rule 2 of the High Court of Benue State (Civil Procedure) Rules, 2007; and Section 36 (1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). I feel the need to reproduce the above stated provisions of the law for ease of reference.
Section 81 of the High Court Law, Cap 75 Laws of Benue State, 2004 reads as follows:
In every case or matter the presiding Judge shall take down in writing the purport of all oral evidence given before the Court and the minutes of the proceedings and shall sign the same at any adjournment of the cause and at the conclusion thereof. (Emphasis supplied). Similarly, the provisions of Order 35 Rule 2 of the High Court of Benue State (Civil Procedure) Rules, 2007 reads:
Where any judgment is pronounced by a Judge the judgment shall be dated as of the day on which such judgment is pronounced and shall take effect from that date unless the Judge otherwise orders.(Emphasis supplied).
Section 36 (1) and (3) of the 1999 Constitution (as amended) provide as follows:
(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(3) The proceedings of a Court or the proceedings of any tribunal relating to the matters mentioned in Subsection (1) of this section (including the announcement of the decisions of the Court or tribunal) shall be held in public. (Emphasis supplied).
The proceedings that led to the judgment under attack was concluded on 29th September, 2009. It was then adjourned on that 29th instant to 4th November, 2009 for judgment. (See page 45 of the record of appeal). Much as the said judgment at the bottom of it bore the date of 4th November, 2009, the learned trial Judge went further to date the proceedings of the day as having taken place on 15th March, 2010. In the proceedings of the said 15th March, 2010, the learned trial Judge took the presence or otherwise of parties in Court as well as the appearances of counsel for the parties as the case may be. The learned trial Judge then went on to note and/or endorse as follows:
Court: Judgment is delivered in open Court today being the 15th March, 2010 because of the annual vacation of the Court which took effect from 3rd August, 2009 to 18th September, 2009 followed by Judiciary Staff Union of Nigeria strike (JUSUN) with effect from 2nd November, 2009 to 9th March, 2010.
(SGD) M. A. Ikpambese, J. and dated 15th March, 2010.(See page 58 of the record of appeal).
There is no dispute about the fact that the judgment was originally billed for delivery on 4th November, 2009. However, due to the intervening circumstances of the Judiciary Staff Union of Nigeria (JUSUN) strike which lasted from 2nd November, 2009 to 9th March, 2010, the lower Court was unable to deliver the judgment until 15th March, 2010. Since the Courts were not sitting as at 4th November, 2009 when the delivery of the judgment was first scheduled, it became impracticable for it to be delivered. The date of 4th November, 2009 as it appears at the end of the judgment can be dismissed as a mere accidental slip of the pen which has not occasioned any miscarriage of justice to the appellant. After all Courts throughout the nation were on hold at the time. The judgment was delivered subsequently on 15th March, 2010 at the suspension of the strike action and that fact is clearly stated on the face of the record of the lower Court. It is further noted in the record of the lower Court that the judgment was delivered in the open Court and duly signed by the learned trial Judge and dated the 15th March, 2010. That record of the Court remains not only sacrosanct but also a superior documentary proof that can only be overturned or challenged and controverted by a better superior documentary proof. On the contrary, the brief of the learned counsel for the appellant is far from being that better superior documentary proof required in the circumstances.
It is just not enough for the learned counsel for the appellant to submit in his brief of argument that the learned trial Judge signed and dated the judgment in his chambers. (See page 12, para. 4.06 of the appellant’s brief of argument). Granted, though not conceded that the learned trial Judge signed and dated the judgment in his chambers, I wonder the injury the learned counsel for the appellant has suffered as a result of that more so as the intendment of the judgment is preserved. I think that this is more of a case of chasing after shadow than the object. If there is any issue regarding the date of the delivery of the judgment that is for the National Judicial Council to deal with as opposed to beleaguering the Court with them. The record of the Court says that that judgment of the lower Court was prepared and delivered in the open Court on 15th March, 2010 and that is what it is until debunked with a better and superior record. This issue should not have arisen in the first place as same is of no consequence here. It is against this background that I shall resolve issue 3 (three) and it is so resolved in favour of the respondent and against the appellant.
Since the 3 (three) issues distilled for consideration in this appeal are all resolved in favour of the respondent and against the appellant, it follows that the appeal lacks merit. The appeal is therefore dismissed with cost assessed and fixed at N80,000.00 in favour of the respondent and against the appellant.
Appeal dismissed.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the draft judgment of my learned brother C.I. JOMBO-OFO, JCA in advance and I am in total agreement with his findings which are very apt and all encompassing and analytical. There is no doubt that the defendant (now respondent) pleaded and proved his root of title to the disputed pieces of land to warrant my Lord’s conclusion on Issue One (1) that the Respondent who relied on Customary grant as his root of title adequately traced the root properly to his grantors for his claim to succeed. I also agree with my Lord’s conclusion that Exhibit ‘4’ tendered by the respondent was not a registrable instrument and that on the assumption that it was, its admissibility did not add or subtract anything from the case of the respondent which was established by other cogent and compelling reliable evidence to justify the judgment of the learned trial Judge in favour of the defendant/counter (now respondent).
As for Issue 2 (two) as raised for determination by the parties, the authorities of Afrilec Ltd. vs. Lee (2013) 6 NWLR (Pt. 1349) 1 at 21; U.A.C. (Nig.) Plc vs. Sobodu (2007) 6 NWLR (pt. 1030) 368 at 394-395; Isheno vs. Berger Nig. Plc (2008) 2-3 SC (pt. 11) 78 at 80 and Bayol vs. Ahemba (1999) 10 NWLR (pt. 623) 382 SC; Fajemirokun vs. CBN (2009) 37 NSCQR 1 and 19 per Ogebe and Mukhtar, JSC on the claim by the plaintiff/appellant in general damages for false imprisonment, as cited by the respective counsel and my learned brother, I am also in tandem with my Lord’s assertion and conclusion that the appellant had a right as guaranteed him in law and that he was duty bound to report the commission of crime even though he is a police officer.
However, if the Police acted outside the bounds of the law and violated the constitutionally guaranteed rights of the Respondent by detaining him for four days on a land matter which is a civil matter, the appellant who set the machinery of the law in motion should pay for the liability of his colleagues. Accordingly, N100,000.00 (One Hundred Thousand Naira only) awarded against the appellant was (is) reasonable in general damages and therefore subsists and there is no amount of money which can assuage the breach of the respondent’s right to freedom of movement as a result of his unlawful detention that was masterminded by the appellant. I also resolve Issue number 2 (Two) in favour of the respondent.
Turning to the last issue (issue number 3), I am also in agreement that since the judgment was delivered in open Court on the 15th of March, 2010 irrespective of the fact that it was supposed to be delivered on the 4th of November, 2009, the judgment is valid since the failure to deliver the said judgment as and when due was a result of the JUSUN strike that lasted from 2nd November, 2009 till 9th March 2010.
As rightly held by my Noble Lord in his lead judgment, the appellant has not pointed out what injustice be suffered as a result of the late delivery of the judgment.
On the whole, I also resolve Issue number 3 (three) in favour of the respondent and against the appellant and for the more elaborate reasons advanced by my learned brother in the lead judgment which I adopt as mine, I also hold that this appeal is unmeritorious and same is hereby dismissed.
I abide by the order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance, the judgment just delivered by my learned brother, C. IFEOMA JOMBO-OFO, JCA and I am in complete agreement with his reasoning and conclusion in the lead judgment. To add my voice, the Appellant argued that having been granted the permission to build a Nursery School by the Doki elders, he applied to the Katsina-Ala Local Government for a piece of land, consequent upon which he was purportedly allotted 5 plots of land. While the respondent led evidence in proof of the fact that the Shomgba family made a grant of the land in dispute to him on 07/02/1981 under the headship of Gavgav Agbo and the appellant rather than leading evidence in proof of his claim, dissipated his time on picking loopholes and mostly irrelevant issues out of the respondent’s case.
The law is trite that a party seeking declaratory reliefs must succeed on the strength of his own case and not on the weakness of the defence, if any. He has an obligation to prove his claims to the satisfaction of the Court. See the case of MTN V. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR-47042(SC), OKOYE VS NWANKWO (2014) LPELR-23172 (SC), KWAJAFFA & ORS. VS B.O.N. LTD. (2004) 13 NWLR (PT 889) 146 and EMENIKE VS P.D.P (2012) 12 NWLR (PT. 1315).
Generally, there are five ways of proving title to land and both parties in this case relied on traditional history in proving their titles however, from the record before the Court, the respondent was able to prove his root of title, also pleaded and proved the root of title of his grantors sufficiently for his claim to succeed as required by law as in the case of AWODI & ANOR V. AJAGBE (2014) LPELR-24219(SC) and UKAEGBU V. ONWUBORO (2014) LPELR-24429(CA) wherein the Court held that
“On what a party relying on traditional history is expected to plead and prove in order to establish his root of title and accordingly declaration of title. “It is trite that a party who is relying on traditional history must specifically plead and prove the following before the trial Court. (a) Who founded the land? In what manner was the land founded?; and (c) The names and particulars of successive owners through whom he claims.”
See also the cases of AKINLOYE V. EYIYOLA (1968) NMLR 92, MOGAJI V. CADBURY NIG LTD (SUPRA), OLUJINLE V. ADEAGBO (1988) 2 NWLR (PT. 75) 238, LAWAL V. OLUFOWOBI (1996) 12 SCNJ 376, OKOKO V. DAKOLO (2006) 14 NWLR (PT.1000) 401 S.C. IBIKUNLE V. LAWANI (2007) 3 NWLR (PT.1022) 580 and BALOGUN V. AKANJI (2005) 10 NWLR (PT.933) 394.
In view of the above additional discussions, I am in full agreement with the lead judgment of learned brother C. IFEOMA JOMBO-OFO, JCA which I have had the advantage of reading in advance. I also hold that the appeal is unmeritorious and therefore dismissed. I abide by the consequential orders made in the lead judgment.
Appearances:
N. E. Tsobaza, Esq., with him, I. A. Ozueh, Esq. For Appellant(s)
Dr. M. Atonko, with him, E. T. Iyorkaa, Esq. For Respondent(s)
