CORAM

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PARTIES

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BERNARD DEMENGE GWAMILE

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MALCOLM IDOKO IDIHADEM KWAGHTAMEN

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant instituted an action against the Respondents for the declaration of title over a piece of land (farmland) situate at the Genabe District adjacent the Mobile Police Barracks, Makurdi at the Benue State High Court by a Writ of Summons and by an Amended Statement of Claim, wherein he sought for a declaration that the Customary Right of Occupancy bequeathed to the Plaintiff by his grandparents over the farmland still subsists same not having been revoked by the Governor of Benue State; that the purported sale of the Plaintiffs farmland by the 2nd Defendant to the 1st Defendant was null and void; an order of perpetual injunction; general damages; amongst other reliefs. The Respondents defended the suit and counterclaimed seeking for a declaration that the 2nd Respondent was the beneficial owner of all that eight contiguous plots, each measuring 100ft by 50ft; that the 1st Respondent was the current and equitable owner of all that eight contiguous plots; an order of perpetual injunction; amongst other reliefs. At the conclusion of hearing, the trial Court dismissed the claims for declaration of title sought by both the Appellant and the Respondents but granted possessory rights to the 1st Respondent who had purchased the property in dispute from the 2nd Respondent. It further directed the Appellant to pay damages to the 1st Respondent for trespass and granted an order of perpetual injunction against the Appellant from further trespass. Aggrieved by this judgment, the Appellant lodged this appeal before this court.

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HELD

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Appeal Dismissed

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ISSUES

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Whether a Court can grant a relief not claimed by a party to a suit? Whether the test of consistency of a witness is judged by the conformity of the witness opinion to empirical accuracy with that of another witness on a particular fact? Whether the learned trial Judge properly evaluated the evidence of the parties before dismissing the Appellants claim for declaration of title and proceeded to grant possessory right to the 1st Respondent who allegedly purchased the property from the 2nd Respondent?

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RATIONES DECIDENDI

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TITLE TO LAND – WAYS OF PROVING TITLE TO LAND

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“As has been rightly submitted, there are five fundamental ways of proving title to land. A foremost authority, in which these prerequisites were prescribed, is the case of Idundun v. Okumagba (1976) 9-10 SC 227 where the Supreme Court prescribed five ways of proving title to land thus:
1. By Traditional Evidence.
2. By document 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 act of lawful enjoyment and possession of the land.
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199. Proof of one single root of title is sufficient to sustain the claimants claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225.-

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DECLARATION OF TITLE TO LAND – DUTY OF A PARTY RELYING ON TRADITIONAL EVIDENCE IN PROOF OF TITLE TO LAND

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“The parties both relied on traditional evidence. The settled position of the law is that where a party relies on evidence of tradition in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
a. Who founded the land;
b. How he founded the land; and
c. The particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) 4 NWLR (PT 651) 131, (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44. –

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DECLARATION OF TITLE TO LAND- WHETHER A DEFENDANT CAN CLAIM POSSESSION OF LAND IN DISPUTE WHERE THE PLAINTIFF HAS PROVED HIS TITLE TO THE LAND

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“In Iledare v Ajagbonna (1997) LPELR-1491(SC), one of the issues for determination before the Supreme Court was (d) Does the finding of the High Court that the defendants had more acts of possession on the area of land in dispute not raise in their favour.
(i) A statutory presumption of ownership which was not rebutted.
(ii) As well as a logical inference of ownership being in them as against the plaintiff
In its judgment, per Ogwuegbu, JSC said at page 13 of the E-Report:
It is only where a plaintiff fails to prove his title to the land in dispute that the defendant’s possession raises the presumption which the plaintiff is unable to rebut. Section 146 of the Evidence Act cannot stand when the plaintiff proves good title as in this case.
That is to say, in the event that the plaintiff has successfully proved his title, the defendant’s possession of the land in dispute would become an act of trespass. This is because where ownership is not established, acts of possession need not be considered as they would not amount to acts of ownership or possession but to acts of trespass; Okhuarobo v Aigbe (2002) 3 S.C. (PT 1) 141, (2002) LPELR-2449(SC); Odi v Osafile (1987) 2 NWLR (PT 57) 510.

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PROOF OF TITLE TO LAND – DUTY OF COURT WHERE PARTIES ARE UNABLE TO SATISFACTORILY AND CONCLUSIVELY PROVE TITLE TO A DISPUTED LAND

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“Where both parties are unable to satisfactorily and conclusively prove title to the disputed land, the trial Judge would usually proceed to decide the case on the basis of numerous and positive acts of possession and ownership; Are v Ipaye (1990) LPELR-541(SC). Acts of possession and enjoyment of land may be evidence of ownership of land, if they established positive acts of possession that extend over an appreciable period of time. The position of the law is that a proof of possession amounts to title against the world where no one has proved a better title. In Iseogbekun v Adelakun (2012) LPELR-15516(SC), Mukhtar, JSC (as he then was) said, pages 56 – 57 of the E-Report:
I have already found under issue (1) that the appellants did not establish their title to the land in dispute, either on traditional history or crown grant having not established their claim and having been found to have failed to establish possession, then possession can be granted to a party who has proved possession for a long period by exercise of acts of possession. See Ogbechie v Onochie (1988) 1 NWLR part 70 page 370, Nwosu v Udeaja (1990) 1 NWLR part 125 page 188. The position of the law is that possession when proved is a title against the whole world where no one has proved better title.
See also: Ngene v Igbo (supra) at page 19 of the E-Report; Ekretsu v Oyobebere (1992) LPELR-1099(SC); Anyabunsi v Ugwunze (1995) LPELR-503(SC). In Ekretsu v Oyobebere (supra) at page 27 – 28 of the E-Report, the Supreme Court, per Ogwuegbu, JSC said:
Exclusive possession gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except the person who can establish a better title.-

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ACTS OF EXCLUSIVE POSSESSION – ACTS OF POSSESSION MUST EXTEND OVER A SUFFICIENT AMOUNT OF TIME AND MUST BE POSITIVE

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“Acts of exclusive possession on the disputed land must be positive acts of possession that extend over a long period of time. In Duru v Onwumelu (2001) LPELR-970(SC) at pages 21- 22 of the E-Report, Uwaifo, JSC described it this way:
There is the requirement that the acts ought to extend over a sufficient or appreciable period of time and must be positive. To be positive, the acts ought to be such that can be verified upon strong evidence, such as, old structures and settlements, well-beaten roads or paths, economic trees tending visibly to be long-lived, old farms and huts, community shrines which have long been in existence, and to which the plaintiffs as a community can satisfactorily lay claim etc. See also: Olagunju v Adesoye (2009) LPELR-2555(SC)”. –

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TRESPASS TO LAND- CONCEPT OF TRESPASS TO LAND

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“It is settled law that trespass is a violation of a possessory right and does not generally involve title to land; Omoni v Biriyah (1976) LPELR-2651(SC); Ugoji v Onukogu (2005) LPELR-3322(SC); Adetono v Zenith Intl Bank Plc (2011) LPELR-8237(SC). In Ekretsu v Oyobebere (supra) at page 29 of the E-Report, Ogwuegbu, JSC said:
It is trite that where the title of both parties is defective as in the present case, the Court can still find for the plaintiff in the action for trespass if he establishes possession, which the appellants have done here.
Therefore, where a party has proved that he is in possession of a disputed parcel of land, he is entitled to an order to enable him protect his right of possession against the whole world except against the person who is able to prove a better title to the disputed land”. –

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DECLARATION OF TITLE TO LAND- DUTY OF A PARTY SEEKING A DECLARATION OF TITLE TO LAND

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“In the first place, as pointed out by the Respondents Counsel, the Appellant who was seeking a declaration of title had the obligation to define with precision the land claimed. He must prove the location, the extent and any features thereon; Ukaegbu v Nwololo (2009) LPELR-3337(SC); Aiyeola v Pedro (2014) LPELR-22915(SC)”. –

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FINDING OF A TRIAL COURT – STATUS OF THE FINDING OF A TRIAL COURT NOT APPEALED AGAINST

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“It is trite that where a finding of a lower Court is not challenged in any of the grounds of appeal, such finding remains valid and subsisting and the Appellate Court is without jurisdiction to consider and determine such an issue; Interdrill Nigeria Ltd v UBA Plc (2017) LPELR-41907(SC); Nsirim v Amadi (2016) LPELR-26053(SC); Onafowokan v Wema Bank Plc (2011) LPELR-2665(SC); Sparkling Breweries Ltd v UBN Ltd (2001) LPELR-3109(SC); Dabup v Kolo (1993) LPELR-905(SC); Awote v Owodunni (1987) LPELR-659(SC), (1987) 5 S.C. 1. This finding was therefore accepted by the parties and thus removed any contention over the location of the disputed land, different names given to it, notwithstanding. The description of relevant features of the disputed land was however necessary to establish claims to it”. –

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VISIT TO LOCUS-IN-QUO – ESSENCE OF A VISIT TO THE LOCUS-IN-QUO

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“The purpose of a visit to the locus-in-quo is to resolve any conflict in the evidence as to physical facts; Obi v Mbionwu (2002) LPELR-2164(SC). InOrugbo v Una (2002) LPELR-2778(SC), the Supreme Court, per Tobi, JSC defined the essence of a visit to the locus-in-quo at page 27 of the E-Report as follows:
The major essence of inspection of locus in quo is to bring to the fore the evidence of both parties without bias. It is a forum to allow the parties show the Court important boundaries and landmarks to enable the Court decide the issue or issues in dispute”.-

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DECLARATION OF TITLE TO LAND- WHETHER A PARTY’S FAILURE OF A CLAIM FOR A DECLARATION OF TITLE TO LAND LEADS TO THE DISMISSAL OF CLAIMS FOR TRESPASS AND INJUNCTION

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“Failure of claim for declaration of title will not necessarily lead to the dismissal of claims for trespass and injunction. This is because a claim in trespass is not dependent on proof of title but on proof of exclusive possession. A claimant who fails in a claim for title can succeed in a claim for trespass and injunction if he established by evidence acts of exclusive possession of the land. See Ezukwu V Ukachukwu (2004) 17 NWLR (Pt. 902) 227 and Monkom V Odili (2010) 2 NWLR (Pt. 1179) 419.
Respondents established by evidence acts of exclusive possession of the land and were therefore entitled to succeed against the appellant in respect of their claim for trespass and injunction. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Not Available|

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