CORAM

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JUMMAI HANNATU SANKEY JUSTICE, COURT OF APPEAL

SAIDU TANKO HUSAIN, JUSTICE COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, JUSTICE COURT OF APPEAL

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PARTIES

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ABIDAN SAMUEL

APPELLANTS

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1. YAHAYA WAZIRI

2. NASSIRU WAZIRI

3 IBRAHIM WAZIRI

4 SULEIMAN WAZIRI

RESPONDENTS

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AREA(S) OF LAW

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APPEAL, ACTION, COURT, EVIDENCE, LAND LAW, TORT, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This is an appeal against the judgment of the High Court of Justice of Gombe State sitting in Gombe delivered on the 22/3/2010 in Suit No. GM/62/2003 granted all but one relief sought by the Plaintiffs now Respondents on 24th July, 2003. The Plaintiffs’ case on the pleadings briefly put is that they are the descendants of their common grandfather, named Waziri Yakoli, who was said to have migrated to Todi village along with other Tangale people who once lived in their old settlement (Kufayi). But upon their arrival at Todi village, the colonial rulers resettled the migrants including Waziri Yakoli, who by this exercise was vested with title over the land now being claimed by the Plaintiffs. Waziri Yakoli in his lifetime was said to be a generous and benevolent person who would accommodate all manners of people who needed his assistance. One of such people who enjoyed the benevolence of Waziri Yakoli was a woman called Goni (Gwami), the wife of the 1st Defendant. The woman (Goni) was said to have had misunderstanding with her husband and this led to her leaving her matrimonial home to sojourn with the Wiziri Yakoli who made a grant of land to her to build her house where she lived until her death in year 2002 or thereabout. Upon Goni’s demise, the Plaintiffs, as grandchildren of Waziri Yakoli, in exercise of what they consider is their right over what they also claim was the property of their grandfather, made attempts to reclaim the land where the house of Goni was built but met stiff resistance from the defendants who claimed that they are the owners of the land hence the suit instituted by the Plaintiffs at the High Court.

Defendants on the other hand have maintained that they are the owners of the land and that one Mamuda was the one that gave the land to Waziri, the grandfather of the Plaintiffs. Plaintiffs and Defendants both elicited evidence at the trial High Court wherein at the hearing certain documents were also tendered and admitted as Exhibits.

The trial High Court as earlier indicated, in a considered Judgment delivered on 22nd March, 2010 found for the Plaintiffs, which is why the present appeal was lodged to this court by the present appellant.

 

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HELD

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Appeal allowed

 

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ISSUES

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Whether on the state of the pleadings and the evidence led at the trial, the Respondents satisfactorily discharged the burden on them to prove their title to the land claimed by them by preponderance of evidence (Arising from grounds of Appeal); and

Whether in the circumstances of this Suit, the trial Court was right in his finding or conclusion that the appellant’s mother was a customary tenant of the Respondents grandfather and in applying the maxim “what is on the land belongs to the land” to declare title in respect of the disputed land in favour of the respondents.

 

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RATIONES DECIDENDI

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TRESPASS TO LAND – WHETHER A CLAIM FOR TRESPASS TO LAND AUTOMATICALLY RAISES THE ISSUE OF TITLE TO LAND

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“Where there is a claim of trespass to land and an injunction to restrain trespass the issue of title to land becomes automatically an issue as held in several authorities including: Ogunde Vs. Ojomu (1972) 4 SC 105; MogajiVs Cadbury (Nig) Ltd. (1985) 2 NWlR (Pt. 7) 393; Odukme Vs. Ogunbiyi (1998) 8 NWLR (Pt. 561) 39; Carena V. Akinlase (2008) 14 NWLR (Pt. 1107) 262.” – Per HUSAINI, JCA

 

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BURDEN/ONUS OF PROOF – ON WHOM LIES THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND

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“In this instance case on appeal, the Respondents having therefore put up their entitlement to the land in dispute, as an issue, it follows, on the state of the law, that the burden is cast on them to prove that which they assert by virtue of sections 131, 132, and 133 of the Evidence Act, 2011. In Kazeem & Anor. Mogaku & Ors (2007) 17 NWLR Pt. 1064) 523 it was held that

“The law is loud and clear that the burden of proof of title to land is on the Plaintiff and he must discharge that burden to obtain Judgment.” – Per HUSAINI, JCA

 

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DECLARATION OF TITLE TO LAND – ON WHAT A CLAIMANT MUST PROVE TO SUCCEED IN A CLAIM FOR DECLARATION OF TITLE TO LAND

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“Therefore in an action for declaration of title to land, what the claimant was required to prove in order to succeed, are:

To ascertain the identity of the land to which his claim relates and prove it,

Second, He must plead and establish the root of his title.

As regards the issues of the proof of the identity of the land in question, the apex Court in Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 held that:

“The plaintiff must first and foremost plead and prove clearly the area of the land to which his claim relates and boundaries thereof and if the location and size of the land is in issue, the Plaintiff must prove the exact location and the area being claimed…”

The Supreme Court also held in Adodomosi V. Dairo (2007) 3 NWLR (Pt. 10250 282, 300 that:

“The issue of the identity of the land in an action for declaration of title to land is very fundamental. The Onus is on the Plaintiff seeking the declaration to establish the precise identity of the led he is seeking the declaration. See for example Ezukwu Vs. Ukachukwu (2004) 17 NWLR (Pt. 009) 227; Lorde V.Thyambe (2000) 15 NWLR (Pt. 692) 675. But where the area of land in dispute is well known to the parties, the question of proof of the identity of the land does not arise. In such a situation it cannot be contended that the area claimed of the land in dispute us certain. See Akinterinwa V. Oladunjoye (200) 6 NWLR (Pt. 659) 92. It must be emphasized in an action where the Plaintiff claims a declaration of title to land and fails to give exact extent and identity of the land he is claiming. His action should be dismissed. See Rufa Rickerts 2 WACA 95 Udofia V. Alfia. See also Arase V. Asanlu (1980) 5-7 SC 78” per Musdsdapher, JSC (as he then was). ”- Per HUSAINI, JCA

 

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BURDEN/ONUS OF PROOF – ON WHEN THE BURDEN TO PROVE IDENTITY OF LAND IN DISPUTE WILL ARISE

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“The Onus on the Plaintiff to prove the identity or area of land claimed by him will only arise if the defendant made an issue by disputing same. See: Atanda V. Iliasu (supra); Fatunde V. Onwoamanam (1990) 2 NWLR (Pt. 132) 3220.” – Per HUSAINI, JCA

 

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IDENTITY OF LAND IN DISPUTE – ON HOW TO PROVE IDENTITY OF LAND IN DISPUTE

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“Proof of the identity of the land claimed as has been held, is a condition precedent to a declaration of title which must be as to identity and location. Thus the mere mention of name or that the parties know the extent of the large area of land is not enough. See: Bokotola V. Akwakoro (2001) Vol. 5 in JSC 17; Ekpemupolo Edremodo (2009) 8 NWLR Pt. 1142) 166 (SC). The Identity of the land in dispute can be proved either by oral evidence describing with certainty and accuracy, the parcel of land involved in a manner that will guide the Surveyor in producing, a plan of the said land. The identity and extent of the land in dispute can also be proved by the claimant filing a survey plan reflecting on the features on the land showing clearly he boundaries. See Ezukwu V. Chukwu (2004) 17 NWLR (Pt. 902) 227. See further Atanda Vs. Iliasu (2013) 6 NEWLR (Pt. 1351 529, 549 paras 3 – 9 where the apex court, per Ogunbuyi, JSC held thus: –

“The general principle of law governing the claim of title to land is title and as laid down in plethora of decided authorities. In other words, for a plaintiff to succeed in an action for declaration of title to land, the onus of proof lies on him to establish with certainty and precision the identity of the area of land to which he lays claim. The plaintiff is herewith saddled with the responsibility of proving by evidence and otherwise, as well as also describing with such degree of accuracy and aptitude, that the identity of the area of land in respect of which he seeks it title, is I fact, not in any doubt. The following authorities are relevant wherewith the identity is in question. Emy J. Bila Auta V. CiefIbe cited (supra); Emmanuel Iloma V. Sunday Idakwo & ors. (2003) 11 NWLR (Pt. 830) 53; Jinatu Ajao and Ors V. Bello Adigun (1993) 3 NWLR (Pt. 289 and Simon Ojiako V.Obiawuchi Ewuru & Ors (1995) 12 SCNJ 79, (1995) 9 NWLR (Pt. 420.

It is elementary to state therefore that the certainty of the identity of land in dispute is sine quo non a necessity as it was held in the case of Wahab Maberi V. Chief Oyeniyi Alade (1987) 4 SCNJ 102, (1987) 2 NWLR Pt. 55) 101. It is also trite that the mere mentioning of the area is not enough; the description and extent of boundaries must be proved with exactitude. See the case of Ijama Otika Odiche V. Ogah Chibogwu (1994) 7 – 8 SCNJ 137 at 324 – 325, (1994) 7 NWLR (Pt. 354) 78.

The test of certainty and precision is of necessity to ensure whether a surveyor can from the evidence before the trial Court produce an accurate pan of such land. See again the cases of Mark Ugbo & Ors V. Anthony Aburine (1994) 9 SCNJ 23 at 34, (1994) 8 NWLR (Pt. 360) 1 and Ahwedjo Efetireroje V. H. R. H. Okpalefe II (1991) 7 SCNJ 85AT 95, (1991) 5 NWLR (Pt. 193) 517.”

See further Akulaka V. Yongo (2002) 5 NWLR (Pt. 759) 135, 166.” – Per HUSAINI, JCA

 

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PLEADINGS – EFFECT OF FAILURE TO LEAD EVIDENCE ON AN ISSUE UNDER DETERMINATION

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“Pw. 3 and Pw6 on the other hand said nothing at all about the area or measurement or dimension of the land claimed, a case of abandonment of pleadings on the issue of identity of the land in dispute, there being no evidence led thereto. See: Ladunni V. Wema Bank Ltd. (2011) 4 NWLR (Pt. 1236) 44, 63; Aregbesola V. Oyinlola (20110 9 NWLR (Pt. 1253 4558, 5994.” – Per HUSAINI, JCA

 

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BURDEN/ONUS OF PROOF – ON WHOM LIES THE BURDEN TO PROVE BOUNDARIES IN A CLAIM FOR DECLARATION OF TITLE TO LAND

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“It is the Plaintiff on whom lies the burden to also prove the boundaries of the land claimed by him since a court would not grant a declaration of title to land where the boundaries are observe and uncertain. See. Imegwu (Obi of Oboh) V. Onyemah (2009) NWLR (Pt. 63) FWLR (Pt. 138); Iorde V. Ihyambe (2001) FWLR (Pt. 31) 2881, 2887).

 

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DECLARATION OF TITLE TO LAND – WHETHER CERTAINTY OF BOUNDARIES IS NECESSARY TO PROVE TITLE TO LAND – TEST FOR DETERMINING IDENTITY OF LAND

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“But a claim for declaration of title to land cannot succeed where the area and boundaries of the land in dispute cannot be ascertained with certainty. The acid test for determination whether a plaintiff has proved the identity or area and boundaries of the land claimed by him with certainty and precision is whether from the record of proceedings of the trial Court or the evidence adduced before the trial Court a surveyor can produce an accurate survey plan of such land. See Atanda V. Iliasu (Supra).” – Per HUSAINI, JCA

 

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VISIT TO THE LOCUS IN QUO – PROCEDURE FOR VISIT TO LOCUS IN QUO

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The procedure for the conduct of Locus In quo visit is set out at Section 127 (2) (a) (b) of the Evidence Act, Cap E 15, 2011, same provides thus:

“127 (2) When an inspection of property under this section is required to be held at a place outside the courtroom, the court shall either-

Be adjourned to the place where the subject-matter of the said inspection may be and the proceedings shall continue at that place until court further adjourns back to its original place of sitting, or to some other place of sitting; or

Attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards, and in either case the defendant: if any, shall be present.”

There is no record of any proceedings showing that either evidence was taken at the locus during the said visit or that evidence was subsequently given in Court after the visit of what transpired at the locus. The court below did not in any case demonstrate in its Judgment how the visit to the Locus in Quo resolved the dispute on the area or extent of the land claimed.” – Per HUSAINI, JCA

 

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ROOT OF TITLE – ON MEANING OF ROOT OF TITLE – DUTY ON A PARTY WHO PLEADS GRANT AS HIS ROOT OF TITLE TO PROVE SAME

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“Closely related with the issue of proof of the identity of the land is the requirement of satisfactory proof of the root of title of the claimant to the land in dispute without which no order can be made for declaration of title. The term ‘root of title” simply connotes means or process through which a party came to be the owner of the land in dispute. See Chinyere Asika V. Henry N. Onyedike (2012) LPElR -9474 9CA); Ofume V. Ngbeke (1994) 4 NWLR (pt. 341) 746. It is thus a factual situation which the Plaintiff or claimant needed to trace and plead those facts in his claim and lead satisfactory evidence thereof. Decisions in Chief S. A. Lawal Vs. Olufowobi 7 Ors (1990) 12 SCNJ 376, 384 and a host of other cases including Olujide V. Adeagbo (1988) 2 NWLR (Pt. 25) 238; Adejumo V. Anyantegbe (1989) 3 NWLR (Pt. 110) 47; Nneji V. Chukwu (1996) 12 SCNJ 388, 397, 3979,; Anabaronye V. Nwakaite (1997) 15 SCNJ 161, 168,; Ukaegbe V. Nwololo (200) 3 NWLR (Pt. 1127, 194; Nkodo Vs. Obiano (1997) 5 SCNJ 33 provide useful guide on how a claimant can plead his root of title. Thus it is held in Nneji Vs. Chukwu (Supra) at page 397 that:

“Where title is derived by grant or inheritance, the pleadings should aver facts relating to the founding of the land in dispute the person who founded the land and exercised original acts of possession and person on whom title in respect of the land has devolved since the first founding. Those are necessary for the determination of the issue of the capacity in which the land is being held”

 

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ROOT OF TITLE – WHETHER A PARTY CAN PLEAD AND PROVE MORE THAN ONE ROOT OF TITLE – EFFECT OF CONFLICTING EVIDENCE OF WITNESSES ON SUCH PROOF OF ROOT OF TITLE

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“The Plaintiff whose claim to title to land founded on traditional history can only plead and prove one root of title and no more. See Balogun V. Akanji (1988) 1 NWLR (Pt. 70) 301. Where claimant projects two or more competing roots of title (as in this case on appeal) he does so merely to make assurance doubly sure. He does that, as abundatia cautella.

However where witnesses called by the claimant gave conflicting history of the claimant root of title such will be treated as unreliable. See Mogaji Vs Cadbury Nigeria Ltd. (page 5) 2 NWLR (pt. 7.) 393; OladoVs. Josiah (2010) 18 NWLR (Pt. 1225) 653 (SC). Pw. 1 Pw2, Pw3 and Pw4 all gave conflicting history of the root of title of Waziri Yakoli, the predecessor from whom, the respondents derived their title, contrary to the respondents pleadings, refer to pages 77, 80, 83, 87, 92 and 96 of the record of appeal as to render the claim doubtful. See Atanda V. Iliasu (supra); Onisudo Vs. Akibu (1982) 7SC 60. The trial court in the face of those conflicting stories on the root of title ought to have rejected the entire evidence and to hold that the Respondents did not prove their root of title. See further decisions on this point in Ezemba V. Ibeneme (2004) 14 NWLR (Pt. 804) 617) 6 NWLR (Pt. 1189) 155. The conflicting stories and evidence of plaintiff/respondents witness on the root of title of the respondents cannot be resolved as the trial court did by resort to the demeanour of those same witness, the veracity of whose evidence is in doubt. But that is what the trial Court did as appear at page 164, where it held:

“Going by the testimonies as adduced by the witnesses the testimonies of the prosecution witnesses appears to me acceptable, the witnesses were confident, they were unshaken even on cross-examination, they were confident in what they were saying. Unlike the witnesses of the defence, from their behavior before me, they were not sure of what they were saying particularly the evidence of DW1.”

No, that is not the procedure. Once there is failure on the part of the claimant to establish his root of title owing to conflicting evidence of witnesses called by him, the trial court should dismiss the claim as there is no duty on the defendant to prove anything where there is no counter claim. I think the matter should end at that. The trial court ought to have dismissed the claim had proper evaluation of evidence been made by it.” – Per HUSAINI, JCA

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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Evidence Act, 2011

 

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