CORAM
YAMMAMA JAMILU TUKUR -JUSTICE COURT OF APPEAL JUSTICE
TIJJANI ABUBAKAR -JUSTICE. COURT OF APPEAL JUSTICE
YAMMAMA JAMILU TUKUR -JUSTICE COURT OF APPEAL JUSTICE
TIJJANI ABUBAKAR -JUSTICE. COURT OF APPEAL JUSTICE
YAMMAMA JAMILU TUKUR -JUSTICE COURT OF APPEAL JUSTICE
YAMMAMA JAMILU TUKUR -JUSTICE COURT OF APPEAL JUSTICE
YAMMAMA JAMILU TUKUR -JUSTICE COURT OF APPEAL JUSTICE
TIJJANI ABUBAKAR -JUSTICE. COURT OF APPEAL JUSTICE
YAMMAMA JAMILU TUKUR -JUSTICE COURT OF APPEAL JUSTICE
PARTIES
1.OLADIRAN SHYLLON
2. R.O. SHYLLON (For themselves and on behalf of Emmanuel Shyllon Family)
APPELLANTS
JOHN OHONYON RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Claimants/Appellants sued the Defendant/Respondent for themselves and for the Emmanuel Shyllon’s family claiming a declaration that they(the Claimants) are entitled to the grant of Statutory Right of Occupancy on the land at Alakasi via Alagbado in Ifako Ijaiye, possession of the said land, 5,000.00 being special damages for trespass committed by the Defendant/Respondent on the Plaintiff’s land and an order of perpetual injunction restraining the Defendant/Respondent and his servants from committing further acts of trespass on the said land. The Defendant/Respondent also counter claimed and sought for a declaration against the Appellants that they had acquired the land in dispute by purchasing same from the owners of the land, the Otta family and he is therefore entitled to right of occupancy over the same land as the beneficial owner. He also claimed N500, 000.00 damages for the destruction of the counter-claimant’s fence, unlawful intervention, harassment and an order of perpetual injunction restraining the Claimant/Appellants from committing further acts of trespass on the said land. The trial court held that neither the Appellants nor the Respondent are entitled to the declaration of title over the land in dispute and granted a perpetual injunction restraining the Appellants and its agents from committing further acts of trespass on the land. Dissatisfied with the decision of the trial Court, the Appellant and the Respondent have appealed and cross appealed respectively to this Court
HELD
Appeal Dismissed, Cross Appeal Allowed.
ISSUES
Whether having regard to the totality of the evidence before the Court, the finding of the Lower Court that the Appellants have failed to prove ownership of the land by traditional evidence is justified.Cross- Appeal
Whether the Cross-Appellant is entitled to possession of the entire land in dispute to the exclusion of the Appellants, their agents, privies and servants
RATIONES DECIDENDI
DOCUMENTARY EVIDENCE –RESTRICTION OF A PARTY’S RIGHT TO COMPLAIN ON THE ADMISSIBILITY OF A DOCUMENT WHERE HE FAILED TO OBJECT TO THE TENDERING OF SUCH DOCUMENT
“Where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility unless the document is inadmissible in law. Omega Bank (Nig) Plc v OBC Ltd (2005) 8 NWLR Pt 928 547 Ratio 16.”PER C.E.IYIZOBA,J.C.A.
INJUNCTION –AIM OF AN INJUNCTION – MEANING OF PERPETUAL INJUNCTION
“As this Court observed in Biyo v Aku (1996) 1 NWLR Pt 422 1 @ 34 G-H, the aim of an injunction is to protect an established legal right. A Perpetual Injunction is a post trial relief usually granted after a full trial of a case on the merit. It is usually directed at the final settlement and enforcement of the right of the parties, which were in dispute. PER C.E.IYIZOBA, J.C.A
AMENDMENT OF PLEADINGS –EFFECT AND IMPORTANCE OF AN AMENDED PLEADING
“The position of the law therefore is that when pleadings are amended, the former pleading is no longer material before the court, in the sense of defining the issues to be tried. However the same can be used to cross examine a witness and can also be referred to in consideration of any other matter before the Court.”PER C.E.IYIZOBA, J.C.A
AMENDMENT OF A WRIT OF SUMMONS – WHERE A WRIT OF SUMMONS IS AMENDED, THE PREVIOUS WRIT WOULD NECESSARILY CEASE TO HAVE RELEVANCE TO THE SUIT
“It is trite that where a Writ of Summons is amended, the previous Writ would necessarily cease to have relevance to the suit. Same cannot be said for the statement of claim.”PER C.E. IYIZOBA, J.C.A.
DOCUMENTARY EVIDENCE – RIGHT OF COUNSEL TO COMMENT AND DRAW INFERENCES FROM DOCUMENTS TENDERED IN EVIDENCE
“The Apex Court held in Buhari v INEC (2008) 19 NWLR (Pt 1120) 246 that Counsel on all sides are free to comment on documents which had been tendered in evidence, including drawing inferences and conclusions at the address stage. In view of the rule that a Court is entitled to look at documents in its file and refer to them in consideration of any matter before it and the fact that Exhibits D3 & D4, later renumbered D4 & D5 were validly put in evidence by the Respondent without any objection from the Appellants, the Appellants’ contention that once pleadings are amended, the previous pleadings are no longer material except if used to impugn the evidence of the witness during cross examination lacks merit. Finally, the principle governing assessment of evidence of traditional history is that such evidence must be treated as a whole and the court cannot believe a portion of it and disbelieve the other portion. This point was lucidly explained by the Supreme Court per Iguh JSC, in Morenikeji v Adegbosin (2003) 8 NWLR Pt 823 612 at 638-642 thus:
“… while a trial court may accept or reject part of the evidence of a witness who testified on primary facts within their personal knowledge; it may not, however, accept part and reject part of the traditional history as traditional evidence cannot be treated as evidence of a witness given on matters within memory….”PER C.E.IYIZOBA, J.C.A.
PRIVY – MEANING OF A PRIVY
“On who is a Privy, this Court in Dike-Ogu v Amadi (2008) 12 NWLR Pt 1102 650 @ 673 A-E following the decision of the Supreme Court in Ekpoke v Usilo (1978) 6-7 SC 187 described the word Privy thus:
“Privies in law are those who derive title from and also claim through that party. Privies are in 3 categories or classes:
(a) Privies in blood
(b) Privies in law; and
(c) Privies in estate.
The first are blood relations like ancestors and heirs; the second and third are executors, administrators, vendors and purchasers”. PER C.E.IYIZOBA, J.C.A.
CLAIM FOR DECLARATION OF TITLE TO LAND – DUTY OF THE PLAINTIFF TO PROVE CLEARLY THE AREA OF LAND TO WHICH HIS CLAIM RELATES AND THE BOUNDARIES THEREOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND
“The law is that a plaintiff who claims a declaration of title to land must prove clearly the area of land to which his claim relates and the boundaries thereof. The plaintiff must describe the land with certainty as to entitle him to declaration of title and injunction-Udechukwu v Ezemuo (2009) 14 NWLR (Pt 1162) 525 at 543 para C.” PER C.E.IYIZOBA, J.C.A.
PRIVY – THE LEGAL EFFECT OF PRIVY AND ITS EXCEPTION TO THE DOCTRINE OF NATURAL JUSTICE
“In Ekpoke v Usilo (Supra) at page 200-201,Obaseki JSC, explained the legal effect of privy and its exception to the doctrine of natural justice principle, that every man must be heard on legal principle affecting him. He said that the general rule is that no person is to be adversely affected by a judgment in an action to which he was not a party; because of the injustice in deciding an issue against him in his absence. But this general rule he said, admit of two exceptions; one of which is that a person who is a privy with the party is bound equally with the party. Consequently, there are two exceptions to the general rule that a court should not make an order affecting a person who is not a party before it. One of these exceptions is that a person who is a privy to a party, who is directly affected, is equally affected. Clearly from the facts before this Court, the Lower Court misconceived the facts as well as erred in law when it limited its injunction in favour of the Cross-Appellant because the rest of the four acres claimed by the Defendant had been sold by the Claimants to third parties and there was purportedly no order sought for the restoration of the said land to the Defendant. The Cross-Appellant sought for an order of perpetual injunction restraining the Cross Respondents, their privies and others from committing acts of trespass on his land.”PER C.E.IYIZOBA, J.C.A
PROOF OF OWNERSHIP OF LAND – WAYS OF PROVING OWNERSHIP OF LAND
“In a suit for declaration of title, ownership of land is in dispute and the plaintiff is bound to prove ownership in one of five ways namely:
(a) By traditional history;
(b) By production of document of title
(c) By various acts of ownership over a sufficient length of time numerous and positive enough as to warrant inference that the person is the true owner;
(d) By acts of long possession; and
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected adjacent land would be the true owner of the land in dispute.
See Yusuf v Adegoke (2007) 11 NWLR Pt 1045 332 at 353 paras D-G; Isitor v Fakarode (2008) 1 NWLR Pt 1069 602 at 621, paras E-G; Ebenogwu v Onyemaobim (2008) 3 NWLR Pt 1074 396.”PER C.E.IYIZOBA, J.C.A.
TRADITIONAL HISTORY – TEST FOR THE COGENCY OF TRADITIONAL HISTORY
“The rule is that in order to test the cogency of traditional history relied on by a party; the Court must look at the relevant aspects of their pleadings and evidence. Akpan v Udoetuk (1993) 3 NWLR Pt 280 94. While assessing traditional history, a trial court should ask itself (1) whether the witness was indeed told the story he came to narrate, and (ii) whether the story has any cogency and a like situation for such an inquiry is where there is obviously an internal contradiction or self conflict in the evidence adduced by the Claimant in support of traditional history-Olowalagba v Bakare (1995) 4 NWLR Pt 387 116. Further, the assessment to be made by the Court will be based on the fact that evidence that bears the hallmark of contradictions or conflicts cannot be relied on-Igbojimadu v Ibeabuchi (1998) 1 NWLR Pt 533 179.” PER C.E. IYIZOBA, J.C.A.
PROOF OF OWNERSHIP TO LAND– WHERE THE PLAN FILED BY THE CLAIMANT IS INACCURATE, THE TRIAL COURT WILL BE JUSTIFIED IN REGARDING SUCH A PLAN AS VAGUE AND UNSATISFACTORY
“In a claim for declaration of title, if the plan filed by the claimant is inaccurate in the sense that the boundaries are imprecise or that the oral evidence does not tally with the details appearing on the plan, then the trial court will be justified in regarding such a plan as vague and unsatisfactory and will be justified in refusing to found a declaration of title on such a plan. Olufosoye v Olorunfemi (1989) 1 NWLR (Pt 95) 26 @ 42 C-F.” PER C.E. IYIZOBA, J.C.A.
TRADITIONAL PROOF OF OWNERSHIP TO LAND –DUTY OF THE PLAINTIFF WHERE EVIDENCE OF TRADITION IS RELIED ON IN PROOF OF OWNERSHIP TO LAND
“In order to succeed in a claim for declaration of title to land, a party must plead and prove any of the five different ways of establishing ownership of land as listed above. Where evidence of tradition is relied on in proof of ownership, the plaintiff, to succeed, must plead and establish such facts as:
1. Who founded the land
2. How he founded the land
3. The particulars of intervening owners through whom he claims: Iguh JSC in Nkado v Obiano (1997) 5 NWLR Pt 503 31 at 68.” PER C.E.IYIZOBA, ,J.C.A.
BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND – THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND REST ON THE PLAINTIFF
“The burden rests squarely on a plaintiff seeking declaration of title to land and the burden is a heavy one as he must establish by evidence called by him to the satisfaction of the court that he is entitled to such a declaration. See Yusuf v Adegoke (2007) 11 NWLR (Pt 1045) 353 at 378, paras C-F; See also Ebenogwu v Onyemaobim (2008) 3 NWLR Pt 1074 396.”PER C.E.IYIZOBA, J.C.A
CASES CITED
STATUTES REFERRED TO
Court of Appeal Rules