CORAM

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PARTIES

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MR. RICHARD NWAKU

 

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ABUBAKAR YUSUF DANA & ORS

 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The 1st-19th Respondents commenced the suit at the High Court of Justice of Taraba State vide the Writ of Summons and their amended Statement of claim wherein they sought for: a declaration of title in respect of the land in dispute; trespass; perpetual injunction; damages for trespass; and cost of litigation. The case for the 1st -19th Respondents as presented in the joint statement of claim (as amended) is that their deceased father, Yusuf Dana Danburam left behind a parcel of land described as being situate in Jauro Yunu Hamlet. He was said to have acquired the land by acts of deforestation and thereafter put the land to use. Their father also obtained title documents to cover the land before he passed on. The 1st -19th Respondents or some of them took over the use of the land left behind by their father. However sometimes in the year 2013, in the course of a routine inspection of the land, the 1st Respondent noticed a building foundation being dug on a portion of the land. Upon inquiry he found that the Appellant dug that foundation and when confronted the Appellant claimed to have bought the piece of land from the 20th Respondent. The 20th Respondent and the Appellant were sued as the 1st and 2nd Defendants at the trial court and in response, the Appellant and 20th Respondents filed a joint defence and denied the claim vide the amended Statement of defence. At the close of evidence, the trial court adjourned the matter to an unspecified date for the proceedings to continue at the locus in quo on a Saturday. However, parties or their counsel were ordered to file and exchange their written addresses on or before the locus in quo visit hence the case adjourned for adoption of written address. At the end of the trial, the lower Court held in favour of the 1st -19th Respondents and the Appellant was adjudged a trespasser and accordingly restrained perpetually from further interference with the land in dispute. He was ordered to pay the sum of N300, 000.00 as damages for trespass. Dissatisfied, the Appellant appealed against the decision of the lower Court vide his Notice of Appeal containing 8 Grounds of Appeal.

 

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HELD

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Appeal Allowed

 

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ISSUES

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Whether from the pleadings and the evidence led at the trial court, the trial judge was right in holding that the identity of the land in dispute was no longer in issue and when he proceeded to grant the 1st – 19th Respondents declaration of title, injunction and damages in their favour particularly in the face of conflicting and contradictory evidence of the plaintiffs’ witnesses in the court below. Whether the learned trial Judge can be said to be right in finding the Appellant liable for trespass and in granting injunction and damages against him after finding the 1st Defendant (20th Respondent) not liable having regard to the pleadings and evidence led by the 1st 19th Respondents in respect of the land they alleged to be in dispute. Whether the learned trial Judge was right in relying on the events that allegedly took place during the visit said to have been conducted to the locus in quo in finding for the 1st -19th Respondents. Whether the learned trial Judge can be said to have properly evaluated and correctly resolved the conflicting evidence of traditional history offered by the Plaintiffs on one hand and the Defendants on the other, assuming but without conceding that the plaintiffs had properly identity the land they were claiming and particularly when he relied on Exhibit P1, P3 and P4 in so doing.

 

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RATIONES DECIDENDI

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

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“First, on the issue of whether the identity of the land in dispute had been proven, given the contradictory nature of evidence adduced by plaintiff’s witnesses and the stance of the defendants at the trial court, raises fundamental questions particularly in cases such as this, where the relief sought, is among others, for a declaratory title to land, the person seeking the declaratory order willy-nilly must prove with certainty, the identity of the land to which the order sought relates. See: Odiche Vs. Chibogwu(1994) 7-8SCNJ 317. This is even more compelling where parties to the action have joined issues in their pleadings over the identity of the land in dispute”. –

 

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IDENTITY OF LAND –WHEN DOES THE IDENTITY OF LAND IN AN ACTION FOR DECLARATION OF TITLE TO LAND BECOME AN ISSUE?

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“The law is that the identity of land, in a case for declaration of title only becomes an issue where parties, particularly the defendants, in their pleadings have made it one. See Ilona Vs. Idakwo (2003) 5 SCNJ 330, 352. Where therefore, defendants in their statement of defence disputed specifically either the area or size or the location or the features of the land claimed by the plaintiff in that case, the plaintiff has a duty to lead evidence to prove the identity of the land he claimed. This is however not necessary where the land in dispute isknown to all parties. See: Ilona Vs. Idakwo (supra) Odiche Vs. Chibogwu (supra). At this point I should revert to the pleadings of parties: the 1st -19th respondents in their amended Statement of claim (Record: pages 155-159) at paragraph 4, on the location of the land in dispute, aver thus: “That the parcel of land is lying and situate at JalingoYunu hamlet which the father of the plaintiffs initially deforested then a bush about 56 years ago” This averment was contradicted at paragraphs 4, 5 and 6 of the 1st& 2nd defendants’ joint Statement of defence which state thus: – “4. The Defendants in response to paragraph 3, 4, 5, 6, 7, 8 and 9 of the plaintiffs’ statement aver that the Defendants do not know the Plaintiffs, and the plaintiffs’ father has never cultivated the 1st Defendant’s land or the land of the 2nd Defendant. 5.The Defendants further aver in further response that the area where the Defendants’ parcel of land is situating at Kofai in Ardo Local Government Area of Taraba State 6.The Defendants aver that Jauro hamlet contemplated by the Plaintiffs is a different settlement from Kofai Village thrugh both Kofai and JauroYunu Villages adjoin each other and are under Ardo Kola Local Government Area of Taraba State.” In relation to the boundaries of their land, the 1st – 19th respondents aver at paragraph 11 of the amended joint statement of claim as follows: “11. That the land being situate at JauroYunu hamlet is bounded as follows: a.East: Late Thomas Dayi which abuts old JauroYunu Road to Kofai. b.West: Late KpantiGana a Mumuye. c.North: Wukari- Jalingo High way. d.South: A seasonal stream” The 20th respondent, in the amended joint statement of defence described the boundaries of his land in paragraph 12(n) thus: “12(n) The late Awushiri Kamke’s land which was partitioned among his children was bounded as follows: North is Jalingo-Numan Highway. South: Saumam family land. East: A stream known as SauKadai in Kona language and also the land of Kiri and Luka Aba. West: is the family land of JauroYunu The appellant on his part as 2nd defendant described his land at paragraph 18 of the amended statement of defence thus: “18. The 2nd Defendant avers that the 2nd Defendant’s land is bounded as follows: North: Old JauroYunu to Kofai and 1st Defendant’s land a portion acquired for customs South: A stream called SauKadai in Kona language. East: Mr. Denis Saumam West: Prof. Noku and the land acquired for Federal Secretariat”. From all indications in the foregoing averments, it is clear to me, that parties have joined issues on the location, area and the boundaries of the land in dispute, thus casting on the 1st – 19th respondents as the plaintiffs at the trial court the duty to prove the identity of the land they claim. See: Udenze Vs. Nwosu (2008) 154 LRCN 110. An issue is said to arise over the identity of the land claimed where defendant disputes specifically either the area or the location or boundaries or features pleaded by the plaintiff in his statement of claim. See: Gbadamosi Vs. Dairo (2007) All FWLR (Pt. 357) 812, where it was held at page 825 that: “It is also now settled law that requires no citation of authority that the identity of a land in dispute will only be an issue if and only if the Defendant in his statement of Defence makes it one. If he disputes specifically either the area or the location or the features shown in the Plaintiffs’ plan, then the identity of the land becomes an issue to be tried. See also1) AnyanwuVs. Uzowuaka (2009) All FWLR (Part 499) 411 at 436. (2) Nwodo Ezeudu & Ors Vs. Isaac Obiagu (1986) 2 NWLR (Pt. 21) 208 per 208 Oputa JSC (as he the4n was) at 220” –

 

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IDENTITY OF LAND- EFFECT OF FAILURE OF A PARTY TO PROVE THE IDENTITY OF THE LAND IN WHICH HE SEEKS A DECLARATION OF TITLE

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“Proof of the identity of the land in dispute is the first major step a claimant needs to surmount in his quest for declaration of title. It is a sine qua non to declaration of title to land: Odiche Vs. Chibogwu (supra); Odofin V. Onu (2001) 1 SCNJ 130. In Michael Udenze Vs Nwosu & Ors (2008) 154 LRCN 110, the apex court held thus: “In this case the onus of the Respondents (Plaintiffs (Plaintiffs) is to show by evidence as Respondent (Plaintiffs) that the identity and boundaries of the land in dispute in certain. This has to precede any attempt at delving into other issues in proving the Respondents (plaintiffs) entitlement/ownership of the land in dispute”. In the event that the claimant failed to prove the identity of the land in dispute, his claim must not only fail, it stands dismissed. At this point I can now revert to the printed record of appeal to see to what extent the issue of the identity of the land in dispute was addressed by the parties in their evidence. See: Nwokidu V. Okanu (2010) 183 LRCN 114, 144 –

 

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CONTRADICTORY EVIDENCE – LEGAL EFFECT OF MATERIAL CONTRADICTIONS IN A PARTY’S EVIDENCE

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“It is trite that where evidence called by a party to prove the averments in his pleadings is in sharp contradiction to those averments which are very material to the case of the party, the result is that the party has failed to prove his case. See: Ogunbiyi Vs. Ogundipe (1992) 9 NWLR (Pt. 263) 24, 35. Those contradictions relate to the identity of the land in dispute and these go to the root of the plaintiffs’ case. The legal effect of those contradictions is to make the case of the 1st – 19th respondents extremely unreliable, hence same cannot also be acted upon. See: Ibekedu V. Sylvester Ike (1993) 7 SCNJ (Pt. 1) 50, 62. –

 

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IDENTITY OF LAND – WHETHER ORAL EVIDENCE OF THE DESCRIPTION OF THE SITUATION OF THE LAND IN DISPUTE CAN SERVE AS SUFFICIENT PROOF OF THE IDENTITY OF THE LAND IN DISPUTE

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“The description, the extent and the boundaries of the land must be proved with exactitude. See: Atanda V. Iliyasu (2012) 12 SCNJ 173; Abidu Samuel Vs. Waziri & Ors. (2016) LPELR-40313 (CA).In this regard oral evidence of the description of the situation of the land in dispute will serve as sufficient proof of the identity of the land in dispute especially where the court paid visit to the locus In quo. See: Atanda V. Iliasu (supra); Odofin Vs. Oni (2001) 1 SCN 130. –

 

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VISIT TO LOCUS IN QUO – PURPOSE OF A VISIT TO THE LOCUS IN QUO

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“Where or when it becomes necessary for the court to pay an inspection visit to the locus in quo, courts should not hesitate to do so if such visitation will clear any grey areas or ambiguities attendant to evidence earlier adduced by the parties. See: Nwangu Vs. Ewulu (1995) 7 NWLR (Pt. 407) 269; Yesufu Abodunde Vs. R (1959) 4 FSC 70; Obi Vs. Mbionwu & Ors(2002) LPELR-2164(SC).The apex court in the latter case held that the purpose of a visit to the locus in quo is to clear doubts which might have arisen as a result of the conflicting evidence of both sides as to the existence or non-existence of a statement of facts relating to physical objects and such conflict can be resolved by visualizing in the conduct of the locus in quo visit. In addition to that, parties and their witnesses must be afforded the opportunity to demonstrate and point out such places and things as are material to the case and the person who were used at the view are put into the witness’ box and on Oath state what part they took in the visit to the locus in quo and what they did: Adewon V. Asogba (2007) LPELR – 3970 (CA). See also the decision in Samuel V. Waziri & Ors (2016) LPELR – 40313 (CA). Section 127, Evidence Act is relevant on the conduct of proceedings at locus in quo. So, a visit to the locus in quo is not just for the court to visualize objects and things on the ground but very significantly, the visit is for the parties and witnesses to point out those things that are material to their case. It is at this point parties and witnesses are expected to point out their boundaries and marks, the extent and size of the land in dispute, features on the land. The court, as expected, will visualize all these proceedings and take note of same before coming to any definite conclusion on the question whether or not the land in dispute is known to the parties. The record of court should reflect the proceedings at the locus in quo including those things or features the parties pointed at as material to their case. The apex court in Odofin V. Oni (supra) acknowledged this position by reference to evidence and/or acts demonstrated by parties at the locus in quo visit. The court observed thus: – “It may be recalled that both parties respectively gave evidence directed towards the identification of the land in dispute. Subsequently, the Customary Court Judges visited the locus in quo and took evidence from a 100 years old man Pa Paul Agubiade who had earlier been subpoenaed to appear. He was one of the elders that late Dare the first settler on the land came to when he wanted to ask for the land and was the very same old man who was mentioned in the court by one of defendant’s witnesses that used to see them harvest garden fruits (“Igba”) on the disputed land. The appellants showed the court members the land earlier given to the respondents as a freehold for their settlement… It is worthy of note that the respondents also showed the court members their boundaries from Sosan to Upo-Egboyin stream, very near Isua land across the road, while the 100 years-old man showed the court members and the defendants an Ancient City Was Wall built alone by the appellants…” –

 

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IDENTITY OF LAND – PURPOSE FOR THE IDENTIFICATION OF LAND IN DISPUTE

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“Certainty of the identity of the land in dispute is very essential. The purpose is to enable the parties and any other person claiming through them to know precisely the area of the land to which the Judgment or order relates for the purpose of enforcement of the decision of court. See: Maberi V. Alade (1987) 2 NWLR (Pt. 55) 101. In the same vein, if a person or party must be held liable for trespass, it becomes even more compelling that the identity of the land the subject-matter of the alleged trespass must first and foremost be established with accuracy. –

 

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COURT – DUTY OF THE COURT TO RELY ONLY ON EVIDENCE DULY ELICITED AND RECEIVED BY THE COURT AT ITS SITTING OR HEARING

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“Viewed from the state of the pleadings of parties particularly the stand point of the defendants at the trial court in their joint statement of defence and evidence led by which the identity of the land in dispute was raised by them as an issue, it becomes very necessary for the trial court to indicate in its Judgment or findings why and how the defendants (that is, the appellant and the 20th respondent) suddenly made a volte-face to now concede only at the locus In quo visit that the land the 1st – 19th respondents lay claim to certain and known to the appellant and the 20th respondent as held by the trial court at pages 278-279 of the record of appeal. This is even more so that the events of what took place at the locus in quo were not reflected on the record of proceedings of the trial court. A finding of court is predicated only on evidence duly elicited and received by the court at its sitting or hearing, whether in the regular court or at the locus in quo. This is why the record of the events upon which the trial court allegedly drew those conclusions need to be seen on record, the absence of which is that the trial court cannot be right or correct in relying on those unverified events. Issue No. 3 is resolved in favour of the appellant. Contrary to the submission of the learned counsel for the 1st – 19th respondents, the case of Opinlaye v. Olukotun (1996) SCNJ 74,is very relevant to this case. The apex court held at page 95 that: “The real point in my view is that in all cases, where a visit to the locus In quo is made, the trial judge should be careful to avoid placing himself in the position of a witness and arriving at conclusion based upon his personal observation of which there is no evidence is support in the record. In other words, it is not open to him to substitute the results of his own observation for the sworn testimony or reach conclusions from his observation at the scene in the absence of any sworn testimony to the existence or non-existence of the facts he had observed… The trial Judge must therefore arrive at his decision not on the impressions from the visit to the locus in quo of which there is no sworn evidence in court thus avoiding substituting “the eye for the ear” as earlier on observed”. (words underlined for emphasis) –

 

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IDENTITY OF LAND – DUTY OF CLAIMANT TO ESTABLISH THE IDENTITY OF THE LAND IN DISPUTE FIRST

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“As observed before, proof of the identity of the land in dispute is the first duty a claimant has to establish. See: Odiche Vs. Chibogwu (supra). If he fails to scale the hurdle, his case cannot go through merely because by the root of title presented by him, he is likely to be the owner of the land he claims. So the question of whether or not the trial court had properly resolved any conflicts in the traditional history evidence as may be projected by parties in the case, does not arise in the absence of any clear evidence of an identified or identifiable piece of land, to which the claim relates. My view therefore is that Issue No. 4 being an academic question, I must ignore same. See: Owner of the MV ArabellaVs. NAIC (2008) 11 NWLR (Pt. 1097) 182. –

 

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IDENTITY OF LAND – EFFECT OF FAILURE OF A CLAIMANT TO ESTABLISH THE IDENTITY OF THE LAND IN DISPUTE

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“Where plaintiff fails to establish the identity of the land to which his claim of ownership or title whatever evidence, whether oral or documentary, he produces at the trial cannot in law, ground a declaration of title in his favour and his action should be dismissed. See the following decisions of the Supreme Court Otanma vs. Youdubagha (2006) 2 NWLR (Pt. 964) 337, Gbadamosi vs. Dairo (2007) 3 NWLR (Pt. 1021) 282 and Aribe vs. Asanlu (1980) 5-7 SC 78. –

 

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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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