➥ CASE SUMMARY OF:
Jimoh Atanda V. Memudu Iliasu (SC.77/2007, 7 December 2012)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Identification of land.
➥ CASE FACT/HISTORY
The brief facts of the plaintiff’s case are that he is of a direct lineage to one Mallam Abosede who founded Abosede in Olooru and who was the customary owner of a land measuring 10.804 hectares situate at Abosede area, Olooru village. He claimed that it was his forefather who was the 1st settler and that the Olooru village met his father already on the land. That Abosede is not within Olooru, but near Olooru. That the families known as Olooru are Tambaya, Ile-Alagbe, Ile Ojude and Ile Oju-Oja. That the defendants in this case are Tambaya and Ile alagbe families. That Abdullahi was a muslim, while the fore-father or the plaintiff was a traditionalist who worshipped Orisa-nla and that because of the difference in religions, Abdullahi gave Abosede the present place where his descendant (plaintiff’s family) now live called Budo Isale. It is in the evidence of the defendant in particular DW4 in chief that Budo-Isale Abosede and Ehinkule are one and the same place. The plaintiff alleged that the defendant trespassed onto their land measuring 10.804 hectares. The defendants on their part claimed that a parcel of land given to one Baba Olodo by the Abosede family falls within their land at Ehinkule Ile-Alagbe and deny liability. In summary the defence case is that when the forefather of the plaintiff came, he met the defendant’s forefather called Abdullahi who founded Olooru, with his four children. That the plaintiff’s forefather was a guest of Abdullahi.
The plaintiff’s claim at the trial High Court of Kwara State was for a declaration of title on a piece of land situate at Budo Isale Olooru village. The claims as stated in both the writ of summons and at paragraph 28 (1)-(5) of the Statement of Claim are as follows:- “28 (1) A declaration that the plaintiff as the head of Abosede family has the customary right to sue for and on behalf of other members of the family. (2) A declaration that the land situate at Budo Isale in Olooru village measuring 10.804 hectares belong to the Abosede family. (3) An order of this court directing the defendant to pay the compensation of N200,000.00 to the plaintiff for the damages caused to the plaintiff’s land. (4) An order directing the defendant, agents, servants and privies to vacate the land situate at Budo Isale Oloom village. (5) An order of perpetual injunction restraining the defendants, agents, servants and privies acting or purporting to act in any manner as the customary owner of the land situate at Budo Isale Olooru village measuring 10.804 hectares.”
In response to the plaintiff’s claims, the defendant also filed their defence and Counter Claimed that:- “they are the traditional owners of the land at Ehinkule/Budo Isale the subject matter of this litigation. An order of perpetual injunction restraining the plaintiff’s family, agents, or privies from committing further act of trespass in the land in dispute. An order nullifying the customary right of occupancy purportedly issued by the Moro Local Government in favour of the plaintiff over the land in dispute.”
At page 50 of the record, the learned trial judge in a reserved judgment held thus and said:- “Failure to identify the distinct area covered by this 10.804 hectares is vital to the case of the plaintiff and an injunction cannot be granted on an indefinite portion of land, the area must be distinct. For this reason the claims of the plaintiff at paragraph 28(2), (3), (4) and (5) must fail and it is hereby dismissed.” Further still and in respect of the counter claim the learned trial judge also at the same page held and said:- “The counter claim of the defendants also claiming the same portion for the same reason of uncertainty of area and a definite boundary, moreso that the defendants too have not put in any survey plan showing the area on which they desire an injunction to be granted, their counter claim too must fail and it is hereby dismissed.”
The lower court on the 30th March, 2006 while not all agreeing on reasons, however reached a common conclusion that the appeal was devoid of any merit and dismissed the appeal thereof. It is against the dismissal by the Court of Appeal that the appellant has further appealed to this court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the Appellant sufficiently proved the identity of the land in dispute and its Area as 10.804 Hectares to entitle him to judgment on all the heads of his claims?
RESOLUTION: IN APPELLANT’S FAVOUR.
[DEFENDANT/RESPONDENT DID NOT DISPUTE THE LAND
‘The defendant vide paragraph 6 of his Statement of Defence/Counter Claim at page 27 of the record of appeal, responded to the plaintiffs paragraph 7 of the statement of claim which preceded the foregoing paragraph 8. It is also relevant to restate that, the said defendant did not however deem it necessary to respond to the plaintiff’s paragraph 8 reproduced supra. It is also pertinent to state that at paragraph 9 of the statement of Defence/counter claim, the defendant did vehemently deny plaintiffs paragraph 9 to 21 in the following terms:- “9. The Defendants strictly deny paragraph 9 to 21 of the Statement of Claim and put the plaintiff to the strictest proof thereof.” Having regard to the foregoing deposition of the statement of defence and counter claim, the paragraphs did not contradict the size of the area in dispute which the plaintiff by his paragraph 8 puts at 10.804 Hects. The statement of defence however specifically denied paragraphs 9 – 21 of the statement of claim. In the absence of a denial of the plaintiff’s averment at paragraph 8, it is in law deemed admitted by the defendant/respondent. For the defendant to have joined issue with the plaintiff thereon, he was expected to have clearly, specifically and outwardly registered his denial on the identity of area of the land in dispute. The authority of the case of Fatuade V. Onwoamanam supra is again relevant in point. See also the case of Owosho V. Adebowale Dada (1984) 7 S.C 149. The law is therefore well settled and as laid down in plethora of authorities that facts admitted need no proof and the court is expected to act thereon.’
‘I have stated earlier in the course of this judgment that the documents Exhibits ‘D’ and ‘C’ were pleaded at paragraphs 23 and 25 of the statement of claim and which ought to be read along side paragraph 8 of the same pleading which was deemed admitted by the defendant/respondent and related clearly to the area of land covering 10,804 hectares. Exhibits ‘D’ and ‘C’ issued in favour of the appellant therefore confirm that the land as stated in the customary Right of Occupancy is consistent with the appellant’s evidence that it is 10.804 hectares in size. By looking at Exhibit ‘C’ simpliciter and in the absence of any evidence to the contrary by the defendant, the plan is drawn to scale and shows the area covered as 10.804 hectares. This fact having been deemed admitted by the respondent needed no further proof. The peg nos at the boundaries as well as the accurate measurement from one boundary peg to another shown on Exhibit ‘C’, confirms that the land in dispute is not in doubt.’
‘From the foregoing conclusions I hasten to ask the question, whether it would be correct to say that the land in dispute is unknown to the parties? I will certainly answer this question in the negative. In otherwords, it is crystal clear to me that both the trial court and the parties are not in doubt as to the location of the land, the size thereof as well as the untarred feature distinguishing same. The foregoing conclusion in other words is sufficient to give the description of the land. I would also wish to restate that with the analytical and detailed testimony of the evidence of witnesses coupled with the events that took place at the locus, there is sufficient and conclusive reason to presume that parties or the trial Judge were in no doubt as to the identity of the land in dispute. As a consequence I hold therefore that the conclusion arrived thereat by the learned trial Judge at page 49 of his judgment is with all respect a total misunderstanding of the land in dispute.’]
.
.
↪️ II. Whether the findings by the Court of Appeal that the Appellant has title over land in Abosede is not a proof of exclusive ownership over the subject of dispute and entitles him to judgment?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[APPELLANT FAILED TO PROVE EXCLUSIVE POSSESSION OR OWNERSHIP OF THE LAND
‘The Respondent as Defendant adduced evidence at the trial court that they inherited the land from their fore fathers and have since been staying thereon without any challenge from anybody except of course the allocation made to Baba Olodo which has triggered the suit, the subject matter of the case now on appeal. There is also an uncontraverted evidence as found by the trial court at pages 48 and, 49 of its judgment supra that the defendant/respondent have never paid “Ishakole” or tribute to anybody, not even the appellants. Even at the risk of repeating myself, I will again reproduce what the trial court said at page 48 of the record:- “The plaintiff needs to prove absolute ownership of this farmland being cultivated by the Defendants before they can dispossess the Defendants of their right to continue their farming on the land in dispute.” The law is trite again I say, and as rightly held by the trial court and affirmed by the lower court that where the defendant/respondent is in possession, the plaintiff/appellant to succeed must prove a better title then that of the former. See again: the authority in the case of Madam Rianatu Shittu v. Alh. Y. O. Egbeyemi and 2 others (supra). From the foregoing deduction and as rightly arrived at by the lower court, I hold also that inspite of the Certificate of Customary right of occupancy Exhibit D, the plaintiff/appellant had failed to discharge the burden of proving that the family had exclusive possession and/or absolute ownership of the land in dispute. It has been held earlier in the course of this judgment that the appellant was unable to prove by evidence the existence of any official boundary erected physically or recognized traditionally by the two families and hence the finding by the lower court that the area in dispute was “apparently a no man’s land between the two portions of land held exclusively by each family.” With all humility and respect, such finding cannot be faulted and I so hold. In the case of Awote v. Owoduni (supra) the appellant failed prove within the land in dispute where their own boundary was. The plaintiff/appellant as rightly held by the lower court was unable to prove exclusive possession and/or absolute ownership of any part or portion of the land in dispute. He cannot in the circumstance be granted a declaration of title as sought. The said issue is therefore resolved against the appellant.’]
.
.
.
✓ DECISION:
‘On the totality of this appeal, while issue one on identity resolved in favour of the appellant issue two on the claim of title or ownership is resolved against him. In the result therefore, the appeal is hereby dismissed and I affirm the totality of the judgment of the Court of Appeal wherein the judgment of the trial High Court Kwara State delivered on the 11th February 2002 is hereby affirmed. The appeal is dismissed with an order of N50,000.00 costs awarded in favour of the respondent against the appellant.’
➥ FURTHER DICTA:
⦿ IDENTITY OF LAND SHOULD BE CLEARLY STATED
It is elementary to state therefore that the certainty of the identity of land in dispute is sine qua non a necessity as it was held in the case of Wahabi Maberi v. Oyeniyi Alade (1278) 4 SCNJ 102. It is also trite that the mere mentioning of the area is not enough; the description and extent of the boundaries must be proved with exactitude. See the case of Ijama Otika Odicha v. Oga Chibogwu (1994) 7-8 SCNJ 317 at 324-325. 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 plan of such land. See again the cases of Mark Ugbo and ors. v. Anthony Aburime (1994) 9 SCNJ 23 at 34, and Ahwedjo Efetiroroje v. H.R.H. Okpalefe II (1991) 7 SCNJ 85 at 95. — C.B. Ogunbiyi JSC.
⦿ FOR DECLARATION OF TITLE, PLAINTIFF SHOULD CLEARLY IDENTIFY LAND HE LAY CLAIMS TO
The general principle of law governing the claim of title to land is trite 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 his 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 its title is infact not in any doubt. The following authorities are relevant wherewith the identity is in question. Emily J. Binta Auta V. Chief Wiley Ibe cited supra; Emmanuel Ilona v. Sunday Idakwo and ors. (supra), Jinadu Ajao and ors.v. Bello Adigun (1993) 3 NWLR (Pt 287) 389 at 397 and Simon Ojiakoko v. Obiawuchi Ewuru and ors. (1995) 12 SCNJ 79. — C.B. Ogunbiyi JSC.
⦿ IDENTITY OF LAND WILL NOT BE NECESSARY WHERE SAME IS NOT IN ISSUE
I hasten to add at this point that the foregoing authorities which support the general principle of law are however relaxed and therefore do not apply in certain exceptional situational circumstances. In other words, the burden of proving identity will rest on the claimant only where it forms part of the subject matter, and has been put in issue. See the case of Fatuade v. Onwoamanam (1990) 2 NWLR (Pt 132) p.322. The determining factors that put an identity into question are the averments on the pleadings of the parties. It is the defendant therefore and by his statement of defence that can join issues with the plaintiff in that respect. Again see the case of Fatuade V. Onwoamanam supra. — C.B. Ogunbiyi JSC.
⦿ ASCRIBING DIFFERENT NAMES TO LAND IS IRRESPECTIVE FOR PROVING TITLE TO LAND
The law is trite that ascribing different names to land by parties is immaterial for purpose of proving identity of land. See the case of J. A. Makanjuola v. Chief Oyelakin Balogun (1989) 5 SCNJ 42 and Onwuka v. Michael Ediala and Anor (1989) 1 SCNJ 102. — C.B. Ogunbiyi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Clara Bata Ogunbiyi, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
J.S. Bamgboye;
Y.S. Muhammed.
⦿ FOR THE RESPONDENT(S)
Adeboye Sobanjo;
Wahab Ismaila.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
