WAZIRI v. MOKWA & ORS
(2021)LCN/15875(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, September 30, 2021
CA/A/403/2018
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
EDOTA WAZIRI (SHAMAKI NUPE) APPELANT(S)
And
1. YUSUF BABA MOKWA 2. IBRAHIM WAMBAI 3. YA’ABA MOHAMMED RESPONDENT(S)
RATIO
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
The five recognized ways of proving title to land as established by the Supreme Court in the case of Idundun V. Okumagba (1976) 9-10 SC227 are:-
i. by traditional history or evidence; or
ii. by documents of title duly authenticated and executed; or
iii. by various acts of ownership numerous and positive, and extending over a length of time as to warrant the ownership; or
iv. by acts of long enjoyment and possession of the land; and
v. by proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would in addition be the owners of the land in dispute. The practice in an action for declaration of title or a dispute for such declaration is constant. It is that a party claiming title to land must show that he acquired his title in any one of the five ways or methods stated above. See Ojoh V. Kamalu (2005) 18 NWLR (Pt. 958) 523; Ajibulu V. Ajayi (2004) 11 NWLR (Pt. 885) 458; Nkado V. Obiano (1997) 5 NWLR (Pt. 503) 31; Adesanya V. Aderonmu (2000) 9 NWLR (Pt. 672) 370 [referred to] Pp. 446, paras. D-H; 460, paras, A-E); Idundun V. Okumagba (supra); Aiyeola V. Pedro (2014) 13 NWLR (Pt. 1424) 409; Iseogbekun V. Adelakun (2013) 2 NWLR (Pt. 1337) 140; Ifediora V. Okafor (2019) 16 NWLR (Pt. 1698) 322.
The Supreme Court in Dim V. Enemuo (2009) 10 NWLR (Pt. 1149) 353 held thus:
“A plaintiff in a land case who relies on prove of title must prove his derivative title. It is incumbent on the plaintiff once he traces the root of his title to his ancestor or ancestor’s family to plead and prove how he or the family had come to acquire title to the land in dispute. He must plead how he acquired the root of title to the land in dispute with particularity as to show the intervening owners through whom the land in dispute had devolved to him, that is, the origin of his title to the land in dispute to the exclusion of the defendant. He must plead and lead preponderance of evidence of who his ancestors are, how they acquired the land in dispute and how the land in dispute belong to his family and is family communal property. See Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393; Atuanya v. Onyejekwe (1975) 3 SC. 161; Akpan v. Udoetuk (1993) 3 NWLR (Pt. 279) 94; Ojo v. Adejobi (1978) 3 SC 65; Odofin v. Ayoola (1984) 11 SC 72; Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 265 referred to.] (Pp. 378, paras. C-F; 401, paras. D-E). PER ONYEMENAM, J.C.A.
THE POSITION OF LAW WHEN A JUDGE VISITS A VISIT TO A LOCUS IN QUO
The law is that where a trial Judge makes a visit to a locus in quo, it is not proper for him to treat his perception at the scene as a finding of fact without evidence of such perception being given by a witness either at the locus or later in Court after the inspection. See Enigwe V. Akaigwe (1992) 2 NWLR; Shekse V. Plankshak (2008) 15 NWLR (Pt. 1109) 105.
On the effect of a visit to the locus in quo, the Supreme Court in Arum V. Nwobodo (2013) 10 NWLR (Pt. 1362) 374 held thus:
“It is more weighty when the evidence as proffered in the Court are re-affirmed by a visit to the locus in quo.”
The Supreme Court also in Shekse V. Plankshak (2008) 15 NWLR (Pt. 1109) 105 held as follows:
“On a visit to a locus in quo, it is necessary for the trial Judge to make a record in the course of the proceedings of what transpired at the scene. However, if the trial Judge failed to make the record but made statement in his judgment about the visit, such statement would be taken as accurate account of what happened and therefore final, unless the contrary can be established by the party that impugns the record.
See Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505. PER ONYEMENAM, J.C.A.
THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND
The law is that a Plaintiff who seeks a declaration of title has the onus of proving that he was so entitled. He can do this either by adducing cogent evidence of tradition or by giving evidence of positive and numerous acts of ownership pointing unequivocally to the fact that he was exercising dominion over the land in dispute or by giving evidence of both. See THE OLUJEBU OF IJEBU V. OSO, THE ELEDA OF EDA (1972) LPELR-2621(SC); ANUONYE WACHUKWU & ANOR V. AMADIKE OWUNWANNE & ANOR (2011) LPELR-3466 (SC); Fatoki V. Baruwa (2012) 14 NWLR (Pt. 1319) 1; Olokunlade V. Samuel (2011) 17 NWLR (Pt. 1276) 290.
A Plaintiff who seeks declaration of title to land must prove his root of title to the land. Where he traces his title to a particular person, he must further prove how that person got his own title or came to have the title vested in him, including where necessary, the family that originally owned the land. The onus is not discharged even where the scales are evenly weighed between them. See Archibong V. Edak (2006) 7 NWLR pt. 980; Okoko V. Dakolo (2006) 14 NWLR pt.1000 pg.401; Dike V. Okoloedo (1999) 10 NWLR pt.623 pg. 359; Otanma V. Youdubagha (2006) 2 NWLR pg.969 pg.337; Mogaji V. Cadbury (Nig.) Ltd & Ors (1985) 2 NWLR pt.7 pg.393; Odofin V. Ayoola (1984) 11 SC pg. 72; Owoade V. Omitola (1988) 2 NWLR pt.77 pg.413; Ndukwe V. Acha (1998) 6 NWLR pt.553 pg.2; MICHAEL EYO V. EMEKA COLLINS ONUOHA & ANOR (2011) LPELR-1873(SC).
In Alhaja Sabalemotu A. Kaiyaoja & Ors V. Lasisi Egunla (1974) 12 SC (Reprint) 49; (1974) LPELR – 1644 SC; the Apex Court set out the position of the law as follows:
“…what is required of a plaintiff in an action for declaration of title is at least to establish his claim, by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is, whether the plaintiff has been able to prove to the satisfaction of the Court that he has a better title than the defendant.” PER ONYEMENAM, J.C.A.
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Niger State sitting at Bida delivered by Musa B. Abdul, J. on 28th February, 2018.
At the trial Court, the Respondents initiated their suit via a Writ of Summons and claimed as follows:
1. A declaration of title to the land of Baba Man Ladan situate and lying at Old Emi Ladan Village in Lavun Local Government Area of Niger State to the Plaintiff.
2. An order of perpetual injunction restraining the defendant by himself, privies, agents, servants, assigns etc from entering trespassing, encroaching or do anything on the said land without the permission or consent of the plaintiffs.
3. The sum of N300,000.00 being the cost of litigation.” (See page 32 of the Record).
The trial Court entered judgment in favour of the Respondents as follows:
“On the whole, judgment is hereby entered for the Plaintiff as per reliefs claimed in paragraphs 19 (i), (ii) and (iii) of the amended statement of claim.”
The Appellant dissatisfied with the judgment of the trial Court approached this Court by Notice of Appeal as found at pages 232- 241 of the Records. Counsel on both sides filed their relevant processes as required by the rules of the Court and the Appeal was heard on 5th July, 2021.
A.U. J. UDOH appeared for the Appellant. He adopted and relied on the Appellant’s Brief of Argument filed on 30th October, 2018 which was deemed properly filed and served on 24th September, 2020. He urged the Court to allow the appeal.
SAYUTI BABAKATUN appeared for the Respondent. He also adopted and relied on the Respondents’ brief of argument filed on 7th December, 2020 which was deemed properly filed and served on 5th July, 2021 in urging the Court to dismiss the appeal.
In the Appellant’s brief of argument settled by I. M. AL- HASSAN, ESQ., 2 issues were formulated for determination as follows:
1. Whether having regard to the facts and circumstances of this case, the Respondents established their entitlement to the relief sought before the lower Court to warrant that Court’s judgment in their favour.
2. Whether the lower Court was right when it relied on the absence of counter-claim by the Appellant to enter judgment for the Respondents in the circumstances.
In the Respondents’ brief of argument settled by S. M. ZHIGUN Esq., the 2 issues raised by the Appellant were adopted for determination.
This being the case, I shall determine this appeal on the referred 2 issues raised by the parties.
SUBMISSIONS ON ISSUE ONE
Whether having regard to the facts and circumstances of this case, the Respondents established their entitlement to the relief sought before the lower Court to warrant that Court’s judgment in their favour.
I.M. AL-HASSAN Esq., for the Appellant contended that the Respondents failed to prove the identity of the land in dispute. He relied on the cases of Okwaranobi & 2 Ors. V. Mbadugha & 4 Ors. (2013) 17 NWLR (Pan 1383) 255, 279 A-D; First Bank of Nigeria Pic V. Okelewu & Anor (2013) 13 NWLR (Part 1372) 435, 463 C-D. He added that the Respondents who admitted that the Appellant is one of their boundary neighbors failed in their further duty to demarcate the disputed land from the Appellant’s land. He relied on the decision of the Court in ODUNZE & 5 Ors. V. NWOSU & 4 Ors. (2007) 13 NWLR (Part 1050) 1, 52-53 F-C.
It was his further contention that the Respondents did not prove their root of title or ownership of the land. The learned counsel relied on the cases of IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227; Odunze & 5 Ors. V. Nwosu & 4 Ors (supra) at page 36 F-G; Anyanwu V. Mbara (1992) 5 NWLR (Part 242) 381; Alli & Anor. V. Alesinloye & 8 Ors. (2000) 6 NWLR (Part 660) 177, 201-202.
The learned counsel for the Appellant again submitted that the Respondents’ claims about Babaman Ladan in their traditional history are completely false. He analyzed the evidence of the witnesses and cited the cases of Ayoola V. Yahaya (2005) 7 NWLR (Part 923) 122, 140 F – H; Gaji & 2 Ors.V. Paye (2003) 8 NWLR (Part 823) 583, 611A; Oforlete V. State (2000) 12 NWLR (Part 681) 415, 436 C-E.
The learned counsel also submitted that the Respondents’ allegations relating to Ndalikali who they claim gave the land to Babaman Ladan was also shown to be false. He further analyzed the evidence of the Respondents’ witnesses and submitted that there is no credible evidence of long possession or enjoyment of the land to warrant title in favour of the Respondents.
Mr. AL-HASSAN of counsel submitted that the trial Court failed to properly appreciate the case before it and did not evaluate the evidence, in support of his argument. He cited the cases of Otuedon & Anor. V. Olughor & 6 Ors. (1997) 9 NWLR (Part 521) 355; Aregbesola & 2 Ors V. Onyilola & Ors (2011) 9 NWLR (Part 1253) 458, 604-605 H-B; Mini Lodge Limited & Anor V. Ngei & Anor (2009) 18 NWLR (Part 1173) 254; Abubakar & Anor V. Joseph & Anor (2008) 13 NWLR (Part 1104) 307, 360 A-B. He urged the Court to re-evaluate the evidence of the parties and make the appropriate findings for a just determination of the case. He cited the case of GARUBA v. YAHAYA (2007) 3 NWLR (Part 1021) 390 408 – 409 B – C.
S. M. Zhigun Esq., for the Respondents in response, submitted that the Appellant is not laying a claim to be the owner of the disputed land because there is no counter-claim on which the facts pleaded in the Statement of Defence rest on. He cited the cases of EKAETE V. UBN PLC (2014) LPELR – 23111, EMIRI & ORS V. IMIEYEH & ORS (1999) LPELR – 1132 (SC). He relied on the case of ELISHA KWEWUM V. BAKO EYI (2015) LPELR – 25633 to submit that the land is not in dispute and that it is only when there is a disputed land that the identity of the land can be in issue if the Defendant makes it so in his defence. It was further submitted that the only onus on the plaintiff in the circumstances of this case is to prove that he is the owner of the land described in his claims. He cited the case of AJIBARE & ANOR V. AKOMOLAFE & ANOR (2011) LPELR – 3948. The learned counsel maintained that, in an action of this nature, in order to prove the identity of land claimed, a Plaintiff is only required to show by minimal evidence an identifiable area of land to which his claim relates. He cited the cases of OKORO & ORS V. WANOGHO (2015) LPELR – 25786; MINISTRY OF LANDS & HOUSING; BAUCHI STATE & ANOR V. ALHAJI YAKUBU SALE TIRWUN (2007) LPELR – 43314.
On the contention of the Appellant that the Respondents did not prove their root of title or ownership of the land, the learned counsel submitted that the root of title of the Respondents can be traced to Babaman Ladan who was given the land by Ndalikali Abdullahi as a gift. The learned counsel submitted that the acts of living on a land, farming and giving portions thereof to interested persons for farming and collecting rents as conceded to by the Appellant in his evidence constitutes acts of ownership which can only be done by a land owner and not a tenant as the Appellant would want this Court to believe. He cited the case of EJEM & ORS V. OFIA & ORS (2000) LPELR – 6802.
The learned counsel contended that when a party relies on traditional history in proof of title which also includes acts of possession and ownership exercised by his ancestors, such evidence cannot and does not constitute hearsay evidence. He cited the cases of DANJUMA V. TERENGI (2010) LPELR – 4019; BAKO & ANOR V. AUDU & ANOR (2018) LPELR – 44394.
On the issue of lack of evaluation of evidence as argued by the Appellant, the learned counsel for the Respondents submitted that there is no counter-claim in this case and so, it is for the Plaintiff to prove his case and if by his evidence, he has met the standard of proof required of him, his claims would be granted irrespective of the defence put up by the Appellant. He cited the case of BELLO & ORS V. SANDA & 7 ORS (2012)1 NWLR (Pt. 1281) 219.
He urged the Court to resolve this issue in favour of the Respondents.
RESOLUTION OF ISSUE 1
The five recognized ways of proving title to land as established by the Supreme Court in the case of Idundun V. Okumagba (1976) 9-10 SC227 are:-
i. by traditional history or evidence; or
ii. by documents of title duly authenticated and executed; or
iii. by various acts of ownership numerous and positive, and extending over a length of time as to warrant the ownership; or
iv. by acts of long enjoyment and possession of the land; and
v. by proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would in addition be the owners of the land in dispute. The practice in an action for declaration of title or a dispute for such declaration is constant. It is that a party claiming title to land must show that he acquired his title in any one of the five ways or methods stated above. See Ojoh V. Kamalu (2005) 18 NWLR (Pt. 958) 523; Ajibulu V. Ajayi (2004) 11 NWLR (Pt. 885) 458; Nkado V. Obiano (1997) 5 NWLR (Pt. 503) 31; Adesanya V. Aderonmu (2000) 9 NWLR (Pt. 672) 370 [referred to] Pp. 446, paras. D-H; 460, paras, A-E); Idundun V. Okumagba (supra); Aiyeola V. Pedro (2014) 13 NWLR (Pt. 1424) 409; Iseogbekun V. Adelakun (2013) 2 NWLR (Pt. 1337) 140; Ifediora V. Okafor (2019) 16 NWLR (Pt. 1698) 322.
The Supreme Court in Dim V. Enemuo (2009) 10 NWLR (Pt. 1149) 353 held thus:
“A plaintiff in a land case who relies on prove of title must prove his derivative title. It is incumbent on the plaintiff once he traces the root of his title to his ancestor or ancestor’s family to plead and prove how he or the family had come to acquire title to the land in dispute. He must plead how he acquired the root of title to the land in dispute with particularity as to show the intervening owners through whom the land in dispute had devolved to him, that is, the origin of his title to the land in dispute to the exclusion of the defendant. He must plead and lead preponderance of evidence of who his ancestors are, how they acquired the land in dispute and how the land in dispute belong to his family and is family communal property. See Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393; Atuanya v. Onyejekwe (1975) 3 SC. 161; Akpan v. Udoetuk (1993) 3 NWLR (Pt. 279) 94; Ojo v. Adejobi (1978) 3 SC 65; Odofin v. Ayoola (1984) 11 SC 72; Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 265 referred to.] (Pp. 378, paras. C-F; 401, paras. D-E).
The argument of the Appellant in the instant case is that, the Respondents failed to prove the identity of the land in dispute and as such their claims are bound to fail. The principle of law is certain, and which is that: in an action which seeks for declaration of title to land, the burden of proof of the identity and boundaries of the land in dispute is squarely on the claimant, which can be discharged either by oral evidence or by survey plan showing clearly the area to which his claim relates. It is, thus, necessary for a plaintiff who claims declaration and injunction to properly and unmistakably identify the land in dispute in view of the order for injunction which cannot be granted in respect of an undefined area. Where he fails to prove the boundaries of the land he asserts to be in dispute or did not satisfactorily describe the dimension and locality, or the description contradicts the plan, the proper order to make is one of dismissal of the claim. See Baruwa V. Ogunshola (1938) 4 WACA 159; Oke V. Eke (1982) 12 SC 218; Okorie V. Udom (1960) SCNLR 326 referred to.] (P.348,paras. C-F).
A plaintiff seeking a declaration of title to a piece or parcel of land must be able to prove its identity with certainty. The acid test is whether a surveyor, taking the record could produce a plan showing accurately the land to which title has been given. Where a plaintiff failed to adduce conclusive evidence of the identity of the land in dispute, a declaration thereto would be difficult to make as the burden of proof placed on the plaintiff has not been discharged. See Oke V. Eke (1982) 12 SC 218; Udofia v. Mia (1940) 6 WACA 216; Iordye V. Ihyambe (1993) 3 NWLR (280) 197 referred to.] (Pp. 348-349, paras. F-A); Addah V. Ubandawaki (2015) 7 NWLR (Pt. 1458) 325.
In the instant case, the parties gave two conflicting pieces of evidence on the identity and boundaries of the disputed land. The Respondents in paragraph 3 of their Statement of Claim averred as follows:
“3 – The Plaintiff avers that the land of Baba Man Ladan situates and lying at old Emi Ladan village in Jima district of Lavun Local Government Area of Niger State which share boundary with the lands of Etsuyankpa Nuwandzurugi, MajinKusogi, Waziri Nupe (defendant’s family) and TsoidaNupe.” See page 2 of the records of appeal.
The Appellant on the other hand averred at paragraph 4 and 5 of the Statement of Defence thus:
“4. The land in dispute share boundaries in the south extending to the middle of a hill called ‘patikopa’, in the north with Waziri’s family land in between two shea butter trees one in the disputed land and the other in the Waziri’s family land, in the west with Tsoeda’s family land at a Neem tree and in the East with the land of Majin Dodo Kusogi at a Shea Butter Tree.
5. The Defendant avers that the land in dispute is part and parcel of Waziri family of Umaru Majigi Quarters, Bida’s land.”
From the records, I see that the trial Court visited the locus in quo in the instant suit to ascertain the boundaries of the disputed land. A visit to the locus in quo will be made where there is a conflict of evidence as to the existence or otherwise of something material to the case, and such a visit would resolve the conflict in evidence or would clear a doubt as to the accuracy of any piece of evidence on the subject. See Seismograph Service (Nig.) Ltd. V. Akporuovo (1974) 6 SC 119; Seismograph Service (Nig.) Ltd. V. Ogbeni(1976) 4 SC 85; Ipinlaiye II V. Olukotun (1996) 6 NWLR (Pt. 453) 148; Atumeyi V. Achimugu (1980) NMLR 90 referred to.] (P. 360), paras.D-E; Abdullahi V. Adetutu (2020) 3 NWLR (Pt. 1711) 338.
The trial Court from the visit of the locus in quo found as follows:
“Disputed land shares boundary with Kusogi land, shares boundary to the east to Jima road.
FEATURES ON THE LAND
Shear butter trees, Defendant’s land shares boundary with shamaki’s land. Defendant’s land in the north.
Defendant’s land shares boundary with Tsoeda Nupe’s land to the West to the road, shares boundary with defendant’s land to the north.
Defendant’s land shares boundary with Etsu Yankpa Nuwa Dzurugi to the south. The road leading to Kusogi is in the disputed land.”
The Appellant’s grouse on the above findings of the trial Court is that the trial Court’s observation left the southern boundary of the land to speculation and that no evidence was adduced during the visit to the locus in quo on the facts observed.
The law is that where a trial Judge makes a visit to a locus in quo, it is not proper for him to treat his perception at the scene as a finding of fact without evidence of such perception being given by a witness either at the locus or later in Court after the inspection. See Enigwe V. Akaigwe (1992) 2 NWLR; Shekse V. Plankshak (2008) 15 NWLR (Pt. 1109) 105.
On the effect of a visit to the locus in quo, the Supreme Court in Arum V. Nwobodo (2013) 10 NWLR (Pt. 1362) 374 held thus:
“It is more weighty when the evidence as proffered in the Court are re-affirmed by a visit to the locus in quo.”
The Supreme Court also in Shekse V. Plankshak (2008) 15 NWLR (Pt. 1109) 105 held as follows:
“On a visit to a locus in quo, it is necessary for the trial Judge to make a record in the course of the proceedings of what transpired at the scene. However, if the trial Judge failed to make the record but made statement in his judgment about the visit, such statement would be taken as accurate account of what happened and therefore final, unless the contrary can be established by the party that impugns the record.
See Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505.
I have consciously studied the findings of the trial Court as seen at page 203 of the records of appeal, it is on record that both parties were properly represented by counsel and there was no objection as to the manner the visit to locus in quo was conducted. Granted that the style adopted by the learned trial Judge is assailable as it would have been more judicial to record the evidence at the locus in quo or when he resumed back in the Court. Howbeit, having in mind that the purpose of the visit to the locus in quo by the trial Court was to ascertain the exact boundaries of the disputed land, and there being nothing to the contrary to impugn the records; as there is no material place before this Court to hold that the trial Court without evidence at the locus in quo speculated and made his findings on the various names of the pieces of land that shares boundaries with the disputed land as well as the Appellant’s land.
The Respondents at the trial Court averred that the land of Babaman Ladan situates and lying at old Emi Ladan village in Jima district of Lavun Local Government Area of Niger State share boundary with the lands of “Etsuyankpa Nuwandzurugi, MaiinKusogi, Waziri Nupe (defendant’s family) and TsoidaNupe”.
The disputed indispensable facts called for the trial Court to ascertain whether or not the mentioned pieces of land in the Respondents’ statement of claim at the trial Court has boundary with the land in dispute. The trial Court during the visit found that the disputed land shares boundary with Kusogi land, shares boundary to the east to Jima road with Shamaki’s land, with Tsoeda Nupe’s land to the West to the road; shares boundary with defendant’s land to the north with Etsu Yankpa Nuwa Dzurugi to the south, the road leading to Kusogi is in the disputed land. (Underlined is mine for emphasis). The trial Court by this finding, confirmed that all the pieces of land mentioned by the Respondents in their statement of claim have boundaries with the land in dispute. I am therefore of the firm view that the purpose of the visit to locus in quo in the instant case which was to clearly ascertain the boundaries of the disputed land was well achieved. It follows therefore that the argument of the Appellant that the Respondents failed to prove the identity of the land on the ground that the disputed land was not specifically described from the North, West, East and south is not correct. Also the style of the learned trial Judge as regards the evidence at the locus though not applausive, the same did not occasion a miscarriage of justice in any way.
On the Appellant’s contention that the Respondents failed to prove title or ownership of the land in dispute. The law is that a Plaintiff who seeks a declaration of title has the onus of proving that he was so entitled. He can do this either by adducing cogent evidence of tradition or by giving evidence of positive and numerous acts of ownership pointing unequivocally to the fact that he was exercising dominion over the land in dispute or by giving evidence of both. See THE OLUJEBU OF IJEBU V. OSO, THE ELEDA OF EDA (1972) LPELR-2621(SC); ANUONYE WACHUKWU & ANOR V. AMADIKE OWUNWANNE & ANOR (2011) LPELR-3466 (SC); Fatoki V. Baruwa (2012) 14 NWLR (Pt. 1319) 1; Olokunlade V. Samuel (2011) 17 NWLR (Pt. 1276) 290.
A Plaintiff who seeks declaration of title to land must prove his root of title to the land. Where he traces his title to a particular person, he must further prove how that person got his own title or came to have the title vested in him, including where necessary, the family that originally owned the land. The onus is not discharged even where the scales are evenly weighed between them. See Archibong V. Edak (2006) 7 NWLR pt. 980; Okoko V. Dakolo (2006) 14 NWLR pt.1000 pg.401; Dike V. Okoloedo (1999) 10 NWLR pt.623 pg. 359; Otanma V. Youdubagha (2006) 2 NWLR pg.969 pg.337; Mogaji V. Cadbury (Nig.) Ltd & Ors (1985) 2 NWLR pt.7 pg.393; Odofin V. Ayoola (1984) 11 SC pg. 72; Owoade V. Omitola (1988) 2 NWLR pt.77 pg.413; Ndukwe V. Acha (1998) 6 NWLR pt.553 pg.2; MICHAEL EYO V. EMEKA COLLINS ONUOHA & ANOR (2011) LPELR-1873(SC).
In Alhaja Sabalemotu A. Kaiyaoja & Ors V. Lasisi Egunla (1974) 12 SC (Reprint) 49; (1974) LPELR – 1644 SC; the Apex Court set out the position of the law as follows:
“…what is required of a plaintiff in an action for declaration of title is at least to establish his claim, by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is, whether the plaintiff has been able to prove to the satisfaction of the Court that he has a better title than the defendant.”
In other words, the law is the same as it was, very long time ago, as stated by Webber, C. J. in Kodilinye Vs. Mbanefo Odu (1935) 2 WACA 336 as follows:-
“The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him, to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If the onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant.”
See also Saka Owoade & Anor Vs. Omitola & Ors (1988) NWLR (Pt.77) 413; Mrs. Olayide Okelola vs. Adebisi Adeleke (2004) 13 NWLR (Pt.890) 307; (2004) 7 SCM 95 (2004) LPELR 2438 SC.
In the instant case, the Respondents who were the Plaintiffs at the trial Court in their evidence averred that the land in dispute was initially owned and possessed by one late Alikali Abdullahi who founded Jima long before the coming of the Fulani Jihadists but later moved to settle at Nuwand Zurugi village, it was also averred that Ndalikali Abdullahi after his settlement requested Etsu Muhammadu Makun to provide him with an Islamic mallam to teach and guide him and his subject with Islamic knowledge and that Etsu Muhammadu Makun directed one Babaman Ladan of Emi Naibi Ladan Bida to move to Nuwand Zurugi to lead Ndalikali Abdullahi. It was further averred that Babaman Ladan upon arrival was given the parcel of land which is in dispute by Alikali Abdullahi to settle perpetually. The 1st and 2nd Respondents contended that they are great great grand-children while the 3rd Respondent is a great great great grand-child of Baba Man Ladan. PW1 in his testimony said that he used to pay tribute to Ndagi Yagi and later to the 2nd Respondent. He also said that the disputed land is called Emi Ladan because prayers have always been offered at the land. PW2 in his testimony said his father told him that Babaman Ladan is the great great grandfather of the Plaintiffs, that Ibrahim Mohammed and Adamu Shaba told him that they also leased part of the land in dispute and that his father also leased part of the land in dispute from Babaman Ladan. PW4 also testified that he collected tributes on the land in dispute on two occasions.
The Appellant on the other hand averred that the Appellant’s ancestors founded the entire land of Waziri of Umaru Majigi Quarters, Bida (including the land in dispute) by conquest through Mayaki Andy and it devolved onto the following one after the other, Shafiyi, Abdullateef I, Shamaki Gana Dikko, Waziri Hassan, Abdullateef Il, Shamaki Abdullateef, Shamaki Kudu (later Waziri Kudu) and presently Alhaji Umaru Edota (Shamaki Nupe), the Defendant.
The DW2 in his testimony said that Ndagi Yagi is an uncle to the Plaintiffs/Respondents. He also conceded to the fact that Ndagi Yagi once controlled the disputed land and sold part of the land in dispute to Yannako. The DW5 in his testimony said he does not know the name of the founder of the disputed land. The DW6 on the other hand said that his father told him that Mallam Umaru Jiya and Babaman Ladan farmed on the disputed land and that he has been farming on the disputed land and used to give Ndagi Yagi farm tribute after each harvest.
From the evidence of the parties at the trial Court and the findings of the trial Court during the visit to locus in quo, it is clear that the Appellant’s land shares boundary with the land in dispute. The Respondents gave a chain history of how Ndalikali Abdullahi gave the land in dispute to Babaman Ladan. The Appellant in paragraph 10 of his statement of Defence conceded that on the demise of Mallam Jiya Umaru, Babaman Ladan took over the control and possession of the land in dispute, living in it, farming on it and giving portions thereof to interested persons for farming and collected rents from those farming on the land at his instance. The Appellant however averred that the rents were taken to Waziri family through Ekosa people, but did not back the averment with evidence. The Appellant failed to prove how the rents were sent to the Waziri’s family or who in Ekosa was collecting the rent for onward transmission to the Waziri family. It is a settled law that he who asserts must prove. See SHARING CROSS EDUCATIONAL SERVICES LIMITED V. UMARU ADAMU ENTERPRISES LIMITED & ORS (2020) LPELR – 49567(SC); OLASUNKANMI GREG AGBABIAKA V. FIRST BANK OF NIGERIA PLC (2019) LPELR-48125(SC).
The Appellant in paragraph 13 of his Statement of Defence conceded that Ndagi Yagi while in control of the land in dispute sold a portion of the land in dispute measuring about 400ft x 400ft.
Flowing from the above, it is without controversy that Ndagi Yagi was in control of the land in dispute after which Babaman Ladan succeeded him. Again the DW2 in his testimony conceded that Ndagi Yagi is an uncle to the Plaintiffs/Respondents. In all, this simply points to the obvious fact that the ownership and administration of the land revolved on the Respondents. It follows in my view that the Respondents proved their title to the land in dispute by traditional history as well as full possession of the land in dispute. The Appellant failed to break the chain of succession of the Respondents. The argument of the Appellant that Ndagi Yagi took Babaman Ladan to Court in claim of ownership of the land without prove of the outcome of the case is inconclusive and the alleged dispute between the 2nd Respondent’s mother and Ndagi Yagi still does not discredit the fact that Ndagi Yagi was in control of the land and sold some portion before he died and that Babaman Ladan took over the land in dispute after the death of Ndagi Yagi. I resolve this issue in favour of the Respondents and against the Appellant.
ISSUE 2
Whether the lower Court was right when it relied on the absence of counter-claim by the Appellant to enter judgment for the Respondents in the circumstances.
The learned counsel for the Appellant submitted that the trial Court was completely wrong to rely on the absence of counter-claim by the Appellant, to enter judgment for the Respondents in this case. It was also submitted that the onus has always been on the Plaintiff to succeed on the strength of his case for an action for declaration of title, and he cannot rely on the absence of a counter-claim to advance his case. He cited the case of Bamgbegbin & 24 Ors V. Oriare & 4 Ors (2001) 5 NWLR (Part 707) 628, 666E-F. He further submitted that the trial Court was in error to raise the issue of none filing of counter-claim to hold against the Appellant and to grant title to the Respondents who have failed in their duty to establish their title. He cited the cases of Fagbenro V. Arobadi (2006) 7 NWLR (Part 978) 172, 183E – H; Ogwe & Anor V. Inspector General of Police & 2 Ors. (2015) 7 NWLR (Part 1459) 50S, 530 O – F; Olohunde & Anor V. Adeyoju (2000) 10 NWLR (Part 676) 562, 559B – O; Adejugbe & Anor V. Ologunja (2004) 6, NWLR (Part 868) 46. The learned counsel urged the Court to allow the appeal.
In the Respondents’ brief of argument, it was submitted that the trial Court did not at any part of its judgment rely on the absence of a counter-claim to grant the Respondents’ claims. The learned counsel contended that the issue formulated by the Appellant does not flow from ground one of the grounds of appeal as shown in the Notice of Appeal. He submitted that ground one of the Notice of Appeal complained against the formulation of issue 2 by the trial Court as to whether the Appellant can claim title to the land when there is no counter-claim and to which the Court answered in the negative.
The learned counsel maintained that as issue 2 does not arise from ground one of the Notice of Appeal, the same ought to be struck out. He relied on the decisions of the Courts in MIMI & ANOR V. SUSWAM & ORS (2019) LPELR 48780; ACCESS BANK PLC V. MARYLAND FINANCE COMPANY AND CONSULTANCY SERVICE (2004) LPELR – 7311.
The learned counsel urged the Court to dismiss the appeal with substantial cost.
RESOLUTION OF ISSUE 2
The law is well established that a defendant can only be awarded title to land after the dismissal of a Plaintiff’s action for a declaration of title, if the referred Defendant had claimed and proved that he is entitled to the award of title to the land. The mere dismissal of a Plaintiff’s action seeking for a declaration of title to land in the absence of a successful counter-claim by a defendant does not amount to a declaration of any right to the defendant. See KABURU PADA V. WOYA GALADIMA & ANOR (2017) LPELR-42761(SC); GODWIN C. ONOVO & ORS V. FERDINAND MBA & ORS (2014) LPELR – 23035(SC); FIDELITY BANK PLC V. TOTAL NIGERIA PLC & ORS (2017) LPELR-46214(CA); TUNDE ADINLEWA & ANOR V. MRS. FUNMILAYO BAMIDELE & ANOR (2019) LPELR-48042(CA).
The Supreme Court in KABURU PADA V. WOYA GALADIMA & ANOR (2017) LPELR-42761(SC) held thus:
“The law is trite that for a defendant to get title, he must prove it where the action of a plaintiff seeking declaration of title is dismissed. Such dismissal in the absence of a successful counter-claim by the defendant, does not amount to a declaration of any right to the defendant. Therefore, where a plaintiff claims title to land and the Court dismisses his claim for failing to prove title, the defendant who has not counter-claimed for declaration of title to the same land, does not automatically become entitled to the land. See Anwoyi v Shodeke (2006) 13 NWLR (Pt. 996) 34 SC; Ikem v. Efame (2000) 10 NWLR (Pt. 709) 321. As I state supra, the defendant had not counter-claimed and as such even if the plaintiffs claim were dismissed by the trial Court he would not be entitled to declaration of title to the land in dispute.”
The grouse of the Appellant on this issue is that the trial Court raised issue 2 suo motu and relied on the absence of the Appellant filing a counter-claim to the claim of the Respondents to enter judgment in favour of the Respondents and against the Appellant.
The law is settled in plethora of cases that a Court can adopt the issues raised by the parties or formulate its own issues for the determination of an action. See UNITY BANK PLC V. BILWADAMS CONSTRUCTION CO. NIG. LIMITED & ORS (2019) LPELR-49290(CA); THE GOVERNOR OF IMO STATE & ORS V. E.F. NETWORK NIGERIA LIMITED & ANOR (2019) LPELR-46938(SC); Okoro V. The State (1988) 12 SC 191; [1988] 12 SCNJ 191; Latunde and Anor V. Lajinfin [1989] 5 SC 59; [1989] 5 SCNJ 59; Awojugbagbe Light Industries Ltd. V. RN. Chinukwe and Anor. [1995] 4 NWLR (pt. 390) 379; [1995] 4 SCNJ 162; Ogunbiyi V. Ishola [1996] 6 NWLR (pt.452) 12, 24; [1996] 5 SCNJ 143; Lebile V. The Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria Ugbonla and Ors. [2003] 1 SCNJ 463; NSIKAK BASSEY UKPONG V. THE STATE (2019) LPELR-46427(SC).
The Supreme Court in PASTOR IZE-IYAMU OSAGIE ANDREW & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2017) LPELR-48518(SC) held thus:
“The issues so formulated by the Tribunal or Court must be with the view to bringing the real question in controversy in the matter to the front burner. Put differently, any modified or reformulated issue must be for the purpose only of determining the real grievances of the parties to the case. See INEC v. Abubakar (2009) 8 NWLR (Pt. 1143) 259 at 277 – 278 paras. G – A, Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113 at 146.”
I have deeply read the judgment of the trial Court in the instant suit. Before the learned trial Judge distilled the 2 issues for determination, he stated thus:
“I have carefully considered the evidence adduced by the parties in this case and after a careful appraisal of the evidence adduced by the parties, I have identified two issues for determination of this Court.”
See page 224 of the records of appeal.
The trial Court then formulated two issues as follows:
1. “Whether from the evidence adduced by the Plaintiffs in support of the pleaded facts claimed in paragraphs 19 (i) (ii) and (iii) of the amended statement of claim. The Plaintiffs have proved their case on balance of probabilities.
2. Whether from the evidence adduced by the Defendant in support of the pleaded facts, the Defendant can claim title to land in dispute without counter claim or without filing a counter claim.”
From the two issues raised by the learned trial Judge, he had rephrased the similar sole issues respectively submitted by the parties and formulated issue 2 to accommodate the argument of the parties on whether the Appellant can be awarded title to the disputed land in the absence of a counter claim.
See pages 220 to 224 particularly at pages 221 lines 31 and 32; and 224 lines 17 to 24 of the records. At page 221 paragraphs 27 to 32 of the records, the Appellant’s counsel urged the trial Court to dismiss the Respondents’ claim for failure to prove the requirements of the law to entitle them to the grant of title to the land in dispute. He also prayed the Court to hold that the Appellant is the owner of the land in dispute. Then at page 224 paragraphs 17 to 24 of the records, the learned counsel for the Respondents in reply to the prayer of the Appellant’s counsel for the learned trial Judge to declare the Appellant the owner of the disputed land submitted that the trial Court cannot under the law hold that the land in dispute belongs to the Appellant who did not counter claim and so does not have any claim before the Court. To bring the real question in controversy to the frontier and so determine the actual grievance of the parties; the trial Court distilled the issue 2 reproduced above following the evidence and argument of the parties. I hold that the learned trial Judge is backed by the law in formulating issue no. 2, to enable him resolve the main dispute between the parties in line with the evidence and arguments before the Court. See THE GOVERNOR OF IMO STATE & ORS V. E.F. NETWORK NIGERIA LIMITED & ANOR (2019) (supra).
For what I have opined, it cannot be said that the trial Court denied any party or the Appellant in particular the right to fair hearing neither did the determination of the said issue no. 2 by the learned trial Judge occasion a miscarriage of justice. Rather I firm that the trial Court was right to have formulated the above referred issue no. 2 based on the evidence placed before it and to accommodate the arguments of parties.
On the second leg of the argument of the Appellant on this issue, I note that the trial Court while resolving issue no. 1 in its judgment as seen at page 227 lines 26 to 30 held thus:
“In the final analysis and having regards to my findings above, that the Plaintiffs are entitled to judgment of this Court. The Plaintiffs have adduced credible evidence in support of the reliefs sought in paragraphs 19(i), (ii) and (iii) of the amended statement of claim and I so hold. Accordingly, judgment is hereby entered for the Plaintiffs as follows…”
Flowing from the above and from the entire judgment of the trial Court, it cannot be seen anywhere that the trial Court relied on the absence of the Appellant to file a counter-claim to enter judgment in favour of the Respondents. The submission of the Appellant that the judgment of the trial Court was a miscarriage of justice in that the learned trial Judge entered judgment for the Respondents based on the failure of the Appellant to file a counter-claim cannot be sustained by the records. The trial Court properly evaluated the evidence of parties before it and made its findings on the title of the disputed land in issue no. 1 before delving into the second issue which touched on the absence of a counter claim. See pages 207 to 229. I fail to fault the findings of the trial Court on this issue. I hold that the absence of a counter-claim by the Appellant was not the basis of the decision of the trial Court in awarding title to the Respondents.
I accordingly resolve this issue in favour of the Respondents and against the Appellant.
In all, having resolved the 2 issues against the Appellant and in favour of the Respondents, this appeal fails and the same is consequently dismissed. I affirm the judgment of the High Court of Niger State, sitting at Bida in Suit No: NSHC/BD/22/2016 delivered by Musa B. Abdul J. on 28th February, 2018.
I award the costs of N100,000.00 in favour of the Respondents.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, Uchechukwu Onyemenam, JCA just delivered. I agree that the appeal lacks merit and it should be dismissed.
My learned brother has given very comprehensive reasons for dismissing the appeal. I agree completely with the reasoning and conclusions of my learned brother. My following comments on issue 2 are merely to “fulfil all righteousness”.
The learned counsel for the appellants argued, inter alia, that “the lower Court was completely wrong to rely on the absence of counter-claim by the appellant, to enter judgment for the respondents in this case”. I think that this argument has no factual or legal basis, as the trial Court had, before considering the second issue it framed for determination, entered judgment in favour of the respondents under the first issue. The law is that an appellate Court is permitted to take judicial notice of such relevant information in the record of appeal, which will assist the Court in doing substantial justice in the determination or resolution of the appeal. See SBM Services (Nig.) Ltd. v. Catherine Sede Okon (2004) 9 NWLR (Pt. 879) 529; Alhaji Mohammed Sanusi Daggash v. Hajia Fati Ibrahim Bulama (2004) 14 NWLR (Pt. 892) 144; Alhaji Muhammadu Maigari Dingyadi v. Independent National Electoral Commission (2011) 10 NWLR (Pt. 1255) 347 and Military Governor of Lagos State & Ors. v. Adebayo Adeyiga & Ors. (2012) 5 NWLR (Pt. 1293) 291.
For the avoidance of doubt, the trial Court stated on pages 227 to 228 of the record of appeal, inter alia, as follows:-
“In the final analysis and having regard to my findings above, that the plaintiffs are entitled to judgment of this Court. The plaintiffs have adduced credible evidence in support of the reliefs sought in Paragraph 19 (i), (ii) and (iii) of the amended statement of claim and I so hold. Accordingly, judgment is hereby entered for the plaintiffs as follows:
It is hereby declared that the plaintiffs named namely:
1. Yusuf Baba Mokwa
2. Ibrahim Wambai, and
3. Ya’aba Mohammed;
have lawful title and are the lawful owners of a parcel of land called Babaman Ladan situates and lying at old Emi Ladan village in Lavun Local Government Area of Niger State and I so hold.
The defendant is hereby restrained by himself, privies, agents, servants, assigns etc. from entering, trespassing, encroaching or do anything on the said land without the permission or consent of the plaintiffs.
On the issue of cost, it is my view that the sum of N300,000 claimed by the plaintiffs is too excessive and in its place, I award the sum of N20,000, as cost in favour of the plaintiffs. I therefore resolve issue one in favour of the plaintiffs.”
The trial Court then proceeded to consider and resolve the second issue as follows:
“On issue two, it is trite law that the defendant who have failed to counter-claim as in the instant case, cannot claim title to the disputed land and I so hold.
In the case of Mr. B.O. LEWIS VS UNITED BANK FOR AFRICA PLC. (2006) 1 N.W.L.R part 962 page 546 at page 551 Ratio 7. The Court of Appeal held:
“a counter-claim is an independent claim which needs not relate to or in any way be connected with the plaintiff’s claim. A counter-claim needs not arise out of the same transaction, which gave rise to the plaintiff’s claim or be a claim of the same nature as the subsisting claim. The fact that the original action has succeeded, failed or has been discontinued is not a lawful reason to discontinue the determination of the counter-claim against defendant. In the instant case where the trial Court had found respondent’s claim established and entered judgment for it under the summary judgment, the application to strike out the appellant’s counter-claim had become non-sequitur and the appellant should have been allowed to continue against the respondent and continue his counter claim.”
From the portions of the judgment reproduced above, I agree with the respondents when they submitted in their brief that:
“By the judgment of the trial Court, the Court never in the judgment relied on the absence of a counter-claim to grant the respondent’s claims. There is nowhere in the judgment where the trial Court made such a pronouncement.”
The appellant clearly misconceived the statement of the trial Court, where it held or stated that:
“On the whole, judgment is hereby entered for the plaintiff as per reliefs claimed in paragraphs 19(i), (ii) and (iii) of the amended statement of claim.
Parties have the right to appeal to the Court of Appeal within 90 days (three months), if they so wish.”
The above statement of the trial Court is merely the Court’s conclusion based on its decision on issue 1, which it formulated for determination.
The decision of the trial Court, as fully reproduced earlier by me, on the issue of counterclaim is not more than an obiter dictum.
In legal parlance, obiter dictum means “a judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision of the case and therefore not precendential” – Black’s Law Dictionary, Deluxe Ninth Edition, page 1177. Thus, in the case of Clement Odunukwe v. Dennis Ofomata & Anor. (2010) 18 NWLR (Pt. 1225) 404 at 446, per Adekeye, JSC the Supreme Court held that:
“An obiter dictum is a statement made in passing which does not reflect the ratio decidendi, that is the reasoning or ground upon which a case is decided.” Similarly, in Olasunkanmi Greg Agbabiaka v. First Bank of Nigeria Plc (2020) 6 NWLR (Pt. 1719) 77 at 95, per Eko, JSC, the apex Court stated as follows:
“An obiter dictum is statement made in passing which does not form part of the ratio decidendi of the decision appealed. It does not decide the live issue(s) in the matter.”
On the meaning and nature of an obiter dictum, the Supreme Court, in the case of Mobil Producing Nigeria Unlimited v. Okon Johnson & 17 Ors. (2018) 14 NWLR (Pt. 1639) 329 at 355, per Okoro, JSC stated that:
“An obiter dictum is an expression of opinion made in the process of writing a judgment by a Judge which is not necessary or relevant to the decision and as such cannot form part of the ratio decidendi of the judgment. An obiter dictum does not have the status of a ratio decidendi in a judgment of a Court. It does not decide the live issues in the matter. Put differently, an obiter dictum is a statement made in passing which does not reflect the ratio decidendi, that is, the reasoning or ground upon which the case is decided.”
See also the cases of Dr. Rasaki Oshodi & Ors. v. Yisa Oseni Eyifunmi & Anor. (2000) 13 NWLR (Pt. 684) 298; Ferodo Ltd. & Anor. v. Ibeto Industries Ltd. (2004) 5 NWLR (Pt. 866) 317 and Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404.
As decided by this Court and the Supreme Court, a ground of appeal which attacks an obiter dictum is incompetent and it is liable to be struck out. See Saude v. Abdullahi (1989) 7 NWLR (Pt. 116) 387; Coker v. U.B.A. Plc (1997) 2 NWLR (Pt. 490) 641; X.S. (Nig.) Ltd. v. Taisei (W.A.) Ltd. (2006) 15 NWLR (Pt. 1003) 387 and Mobil Producing Nigeria Unlimited v. Okon Johnson & 17 Ors. (2018) 14 NWLR (Pt. 1639) 329.
In the case of H.R.H. Freddy Soditi Bongo v. Governor of Adamawa State & 2 Ors. (2013) 2 NWLR (Pt. 1339) 403 at 421, this Court, per Bulkachuwa, JCA (as he then was, later PCA) stated that:
“An occasion may arise in exceptional circumstance where an orbiter is so closely linked to the ratio as to be deemed to radically influence the ratio.
Even then, the ratio will still come into focus in determining the competence of a ground of appeal.”
See also the cases of American International Insurance Company v. Ceekay Traders Ltd. (1981) 5 SC 81; Afro-Continental (Nig.) Ltd. v. Joseph Ayantuyi (1995) 9 NWLR (Pt. 420) 411 and Mobil Producing Nigeria Unlimited v. Okon Johnson & 17 Ors. (2018) 14 NWLR (Pt. 1639) 329 at 355 where it was held that no matter how considerable weight an obiter dictum may have, it is “not appealable”.
It is now settled law that a ground of appeal must relate to and challenge the ratio decidendi of the decision appealed against. See Nigeria Deposit Insurance Corporation v. Okem Enterprises Ltd. (2004) 10 NWLR (Pt. 880) 107; Rt. Hon. Michael Balonwu & Ors. v. Governor of Anambra State & Ors. (2009) 18 NWLR (Pt. 1172) 13 and Mrs. Ganiat Yetunde Elias & Anor. v. Ecobank Nigeria Plc (2017) 2 NWLR (Pt. 1549) 175.
In this case, the ratio decidendi of the decision of the trial Court, appealed against by the appellant, is contained in that Court’s determination or resolution of issue 1 and not in issue 2, which is nothing but an inconsequential comment in the realm of an obiter dictum notwithstanding that it was suo moto distilled as an issue and resolved by the trial Court, without using it as the ground or point for granting the respondents’ claim.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Assuming, for the sake of completeness, that the second issue raised and decided by the learned trial judge was not an obiter dictum, the law is that the only onus on a defendant, who has not filed a counter-claim in an action for declaration of title to land, is to defend the action as he has no duty to prove his own title to the land in dispute. See Kodilinye v. Odu (1935) 2 WACA 336; Elias v. Disu (1962) All NLR (Pt. 1) 241; (1962) 1 SCNLR 361; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391 and Chief James Adebayo Oyewusi & 8 Ors. v. Oba Sunday Olagbami & 2 Ors. (2018) 14 NWLR (Pt. 1639) 297 at 317, paras. D – E and 319, para. A; per Kekere-Ekun, JSC.
It is for the foregoing reasons and more particularly the fuller reasons advanced by my learned brother that I also dismiss this appeal.
I abide by all the orders made in the leading judgment, including the order as to costs.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Hon Justice Uchechukwu Onyemenam, JCA.
I agree with the reasoning and conclusion reached therein and also dismiss the appeal. In consequence, I affirm the judgment of the High Court sitting at Bida in Suit No: NSHC/BD/22/2016 delivered by Musa B. Abdul J. on 28th February, 2018.
I make no order as to costs.
Appearances:
A.U. J. UDOH For Appellant(s)
SAYUTI BABAKATUN For Respondent(s)