CORAM

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ITA G. MBABA (PJ), OFR JUSTICE, COURT OF APPEAL

PATRICIA A. MAHMOUD JUSTICE, COURT OF APPEAL

PETER O. AFFEN, JUCTICE, COURT OF APPEAL

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PARTIES

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ANDREW HASSAN KATSALA BUNU

APPELLANTS 

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AUBADMAN BINDIMO BRAMWEMA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

The Appellant at the trial court laid claim to a vast land situate and lying at Kwadongo, described as from North/North West neighboring the land of one Bitrus, from the West (direct) Ismaila Kaigama, Amos and from the South with Amos and towards the East is a river. The Appellant also sought for an Order of Perpetual injunction restraining the Defendant by himself, family members or any person, from interfering with the land of the Plaintiff.

The defendant filed a defence and counter-claimed seeking to be declared the lawful owner of the said piece of land. He also sought the court to declare that the confirmation of title to the land in dispute in the Defendant by the District Head of Suketu, Alhaji Aliyu Dakinto as proper and lawful.

The learned trial Judge dismissed the claim of the Plaintiff (now Appellant), on-suited the Counter-claim of the Defendant, and awarded damages to the Defendant on the ground that the plaintiff never as much as identified the land in question and that the claim remained unproved.

Aggrieved by the decision, the Appellant made the instant appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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Whether the learned trial Court properly evaluated the evidence before it and was right to dismiss the claim of the Appellant, saying that the Appellant merely described the land in dispute as “vast land”, without properly identifying the land, specifying the size, either in hectres, meters or kilometers?

 

 

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RATIONES DECIDENDI

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TITLE TO LAND – WAYS OF ESTABLISHING/PROVING TITLE TO LAND

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The law on proof of title to land has been repeatedly stated by this Court and Apex Court with lucid clarity to the effect that title to land can be and is established by any of the following five (5) ways namely:

(1) By traditional evidence – evidence of traditional history of how the land evolved from the original founder/owner, down to the Claimant;

(2) By documents of title – production of relevant documents of acquisition of the land;

(3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inferance of ownership;

(4) By acts of long enjoyment and possession of the land;

(5) By proof of possession of adjacent lands, in circumstances which would render it probable that the owner of such adjacent lands would, in addition, be the owner of the disputed land.

See the case of DURU & ORS. VS. DURU & ORS. (2017) LPELR – 42490, (CA) which founded on the locus classicus case of IDUNDUN & ORS. VS. OKUMAGBA (1976) 9 – 10 SC 227; (1076) LPELR – 1431 (SC), and stated:

The law is trite that ownership and title to land can be established in any of the five ways propounded by the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227; (1976) LPELR – 1431 (SC), namely: (1) ” By traditional evidence (2) By documents of title; (3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership; (4) By acts of long enjoyment and possession of the land; (5) By proof of possession of adjacent lands, in circumstances which would render it probable that the owner of such adjacent lands would, in addition, be the owner of the disputed land.” See also Atanda Vs Ajani (1989) NWLR (pt.111) 5111; Obineche & Ors Vs Okusobi & Ors (2010) 12 NWLR (pt.1208) 383; (2010) LPELR – 2178 (SC); Ayorinde & Ors Vs Sogunro & Ors (2012) LPELR – 7808 (SC). Of course, it is not out of place for a claimant to rely on more than one of the separate ways of proving title to land to prove and consolidate his claim of title to land, though prove of a single way is enough. Onwubuariri & Vs Igboasoyi & Ors (2011) LPELR – 754 (SC). See also Awodi & Anor Vs Ajagbe (2014) LPELR – 24219 SC

See also OTUKPO VS. JOHN & ANOR (2012) LPELR – 25053 (SC).

“The five ways of proving title to land in an action for declaration of title are tied to the root of title of the claimant/plaintiff in the sense that it is the way the plaintiff/claimant proves or establishes his root of title. In short, the root of title of a plaintiff maybe traceable to/or through the traditional/historical evidence of the people/land in question, or through the documents conferring title on the plaintiff or through acts of ownership exercised by the plaintiff and/or his predecessor(s) in title, or by acts of long possession and undisturbed possession or by proving that the plaintiff/claimant is in possession of adjacent or connected land such as to raise a strong possibility that the land in dispute must of necessity belong to the plaintiff/claimant.” Per ONNOGHEN, JSC (Pp. 17-18, paras. E-A) – Per I. G. Mbaba, JCA

 

 

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TITLE TO LAND – WHERE THE PROOF OF TITLE IS BASED ON TRADITIONAL HISTORY – WHERE THE IDENTITY OF THE LAND IS NOT IN DISPUTE

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As stated in the above case of DURU VS. DURU (2017) LPELR – 42490 (CA) it is not out of place for a party to rely on more than one way of proof to establish his title.  And where the proof is based on traditional history, the identity of the land cannot be in issue, where the parties are fully agreed as to the land in dispute and asserted same in their pleadings, and described it in their evidence, in a manner that a surveyor can trace the same, based on the description.

In the case of VINYBON FOOTWEAR INDUSTRY LTD VS. DABI (2021) LPELR – 56142 (CA), this Court held as follows:

“The law is trite that, where the parties are well acquainted with the land in dispute, the identity or description of the land ceases to be an issue. See the case of Anagbado Vs Faruk (2018) LPELR-44909 (SC), where it was held: “The parties, themselves, know the portion of the land in dispute. In the circumstance, the identity of the disputed portion of land is not in dispute. The principle well established since Baruwa Vs Ogunshola (1938) 4 WACA 159, is that the onus is on the Plaintiff who seeks a declaration of title to land to show clearly the area of land to which his claim relates. Where, however, the parties themselves know the portion of land in dispute this principle does not strictly apply.” Per Eko JSC”

See also WACHUKWU & ANOR VS. ONWUNWANNE & ANOR (1999) LPELR – 5354 (CA).

It is well settled law that where the land in dispute is so clear that it leaves neither the defendant nor the Court in any doubt as to the specific area claimed in the sense that from the plaintiffs’ description thereof, surveyor can produce plan showing accurately the land in dispute, the plaintiff will be deemed to have discharged the onus on him to prove the specific area he claims. See Ezeudu v. Obiagwu, Omoregie v. Idugiemwanye (1985) supra. As was said by Iguh JSC in the case of Eigbejale v. Oke (1996) 5 SCNJ 49 page 66: (1996) 5 NWLR (Pt.447) 128, “So, too, where the land in dispute is certain and clear and there is no difficulties whatever in identifying its precise extent and boundaries, a declaration of title may be made even without it being based on or tied to survey plan.” Suffice it therefore to say that the contention of learned counsel for appellants that the identity of the land in dispute is in issue is misconceived so also his contention that the identity of the land in dispute was not proved by the respondents. Finally on this issue, I would like to refer to the wise observation of Oputa J.S.C in the case of Ezeudu v. Obiagwu, supra 208 at 210 which read as follows: “We have in our lower Courts almost tacitly accepted that it is ritual in land cases for the plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for good deal of delays in land cases. The onus on the plaintiff is, an onus to prove an issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production and tendering of the Plaintiffs plan in evidence is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent:’ See Omoregie v. Idumgienwanye supra and Aboyeji v. Momoh (1994) 4 NWLR (Pt. 341) at 646.” Per AKPIROROH, JCA (Pp. 11-13, paras. D-B)

Thus, the exact measurement of the land in dispute is never a critical requirement to establish the identity or certainty of the land, claimed by a party, where, as earlier stated, the land in dispute is known to the parties and they have expressed same, in the case. – Per I. G. Mbaba, JCA

 

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EVIDENCE – WHETHER A CLAIMANT IN A CASE FOR DECLARATORY RELIEFS CAN TAKE ADVANTAGE OF THE EVIDENCE OF THE DEFENCE

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The law is trite, that though a Claimant, in a case for declaratory relief, has the duty of proving his case, on the strength of his evidence, he can also take advantage of the evidence of the defence, which goes to support his (Claimant’s) case. See the case of SUSANNIGER & CO. LTD VS. HON. MINISTER FCT ADMINISTRATION & ORS (2020) LPELR – 51190 (CA):

A plaintiff is however entitled to take advantage of any evidence adduced by the defence which tends to establish his title and support his case, see Josiah Akinola v. Fatoyinbo Oluwo (1962) 1 All NLR 224 at 225.2.

In the case of LUKA VS. RIVERS STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY & ORS. (2022) LPELR – 57580 (SC), the Apex Court stated the obvious:

The Claims and the Reliefs being sought by the Plaintiff/Appellant in this matter are declaratory reliefs which the Plaintiff/Appellant is burdened with the onerous duty to succeed on the strength of his own case alone and not on the weakness of the defence, although plaintiff can make use of the case of the defence which supports his case. I refer to the case of KODILINYE v ODU (1935) 2 WACA 336.  – Per I. G. Mbaba, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Evidence Act, 2011

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