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In The Supreme Court of
On Friday, the
13th day of July 2007
Before Their Lordships
S.C. 418/2001
Between
And
Judgment of Court
Delivered by
Niki
Tobi.
J.S.C.
This is an appeal against the
judgment of the Court of Appeal in respect of title to land lying between
Obedu Stream and Iya-Oba
Stream in Ofatedo. The appellant is asking for a
statutory right of occupancy. At the High Court, the learned trial Judge
gave judgment to the appellant as plaintiff. The Court of Appeal upturned
the judgment and allowed the appeal of the respondent who was the defendant
in the High Court.
The case of the appellant as
narrated by the learned trial Judge is as follows: The appellant's
grandfather, Ogunyemi, was granted a parcel of
land by Oba Atoloye, the first
Olafa of Ofatedo
about 100 years ago. Oba Atoloye came into the
possession and ownership of the parcel of land through a grant by one
Balogun Oshungbekun
of
The case of the respondent is
different. It is as follows: The land in dispute was bought from the owner,
Oba Laoye, the late Timi
of Ede sometime in 1976. The late Timi of Ede
acquired the land by conquest about 200 years ago. Possession of the land
was delivered to the respondent in the presence of three other people he
called as witnesses. The respondent also pleaded the doctrine of res
judicata based on the fact that the land in
dispute is part of a larger parcel of land over which there was a litigation
originated in the High Court in 1964 between Timi
of Ede, Oba Laoye and Oba Bello
Oyewusi of Idoo-Oshun.
The appellant called five
witnesses. The respondent called four witnesses. The learned trial Judge
gave judgment to the appellant. An appeal to the Court of Appeal succeeded.
The appellant has come to this court.
Briefs were filed and duly
exchanged. The appellant formulated the following issues for determination:
"(i)
Whether the Court of Appeal properly set aside the trial High Court's
judgment.
(ii)
Whether the Court of Appeal properly analysed the parties' case."
The respondent formulated the
following issue for determination:
"Whether the Court of Appeal
was right in setting aside the judgment of the trial court on the ground
that the Appellant's case on the ground of the identity of the land in
dispute is not made."
Learned counsel for the
appellant, Prince J. O. Ijaodola submitted on
Issue No. 1 that the decision of the Court of Appeal was perverse on the
ground that the Court of Appeal could not lawfully reverse the findings of
fact based on credibility of evidence by the High Court. He cited
Kponuglo
v. Agboola (1974) 1 All NLR
(Pt. 2) 66; Egiri v. Uperi
(1974) 1 NMLR 22; Bakare
v. The State (1987) 3 SCNJ 1
at 5 and Awosu
v. BOCE (1988) 12 SCNJ
313.
Learned counsel submitted on
Issue No 2 that the Court of Appeal misdirected itself in holding
that the respondent in the appeal traced his title to his own land at
Ido-Oshun Osogbo,
Learned Senior Advocate for
the respondent, Mr. N. O. O. Oke, submitted on
the only issue raised that the identity of the land was in issue and the
appellant failed to prove it. He referred to paragraphs 3 to 6 of the
Amended Statement of Claim, the evidence of PW1,
PW2, PW4,
PW5 and PW6 and
asked rhetorically at page 5 of his brief: "which parcel of land
was the appellant and his witnesses talking about
for consideration as the subject matter of dispute between the Appellant and
the Respondent?" He called the attention of the court to the fact that
although the survey plan was duly pleaded in paragraph 5 of the Amended
Statement of Claim, it was never tendered.
Learned counsel also pointed
out that the appellant did not attack the judgment of the Court of Appeal on
the ground upon which the respondent's appeal before it was allowed
principally on the identity of the land on which the declaration was sought.
Accordingly, he cannot be heard on appeal to question that finding. He cited
Yesufu
v. Kupper International NV
(1996) 5 NWLR (Pt. 446) 17;
Eholo v. Ekhotor (1996) 2
NWLR (Pt. 430) 338; NBCI
v. Integrated Gas Nig. Ltd. (2005) 4 NWLR (Pt.
916) 617; Ijale v. Leventis
and Co. Ltd. (1959) SCNLR 255
and
Dabup v. Kolo (1993)
9 NWLRT (Pt. 317) 254. He urged the court to
dismiss the appeal.
Learned counsel for the
appellant, in his reply brief, referred to the evidence of
DW5 and submitted that the issue of
non-certainty of the land in dispute is a non-issue and superfluous. He
submitted that as the land in dispute was well known to both parties, the
issue raised by the respondent on the identity of the land did not arise. He
cited Araba
Ogunbiyi (1980) 5-7 SC 78.
Let me begin or start first
from very familiar principle of law and it is on the burden of proof. In
land matters, the burden is on the plaintiff who pleads title to prove that
title. See GB
Ollivant Ltd, v. Kersah
(1941) 7 WACA 188;
Oladeinde v. Oduwale (1963)
WNLR 41; Udegbe v.
Nwokafor (1963) 1 All NLR
417; Mogaji v. Odofin
(1978) 4 SC 91; Bello v. Eweke (1981) 1 SC 101
and Onobruchere v. Esegine
(1986) 1 NWLR (Pt. 19) 799. This is
consistent with the burden of proof in our adjectival law as contained or
provided for in the Evidence Act. See sections 137 and 139 of the Evidence
Act. See also Elias v.
Disu (1962) 1 All NLR
214; Abiodun v. Adehin
(1962) 1 All NLR 550;
Okechukwu and Sons v. Ndah (1967)
NMLR 368; Frempong
II v. Brempona II (1952) 14
WACA 13.
Flowing from the above general
principle of law is that where the parties are not
ad
idem or
ad
idem facit
on the identity of the land in dispute, the burden is on the
party claiming title to prove the identity of the land. And this he can do
by specific and unequivocal evidence as to boundaries of the land in
dispute. In
Odesanya v.
Ewedemi (1962) 1 All NLR
320, the Federal Supreme Court held that in a claim for declaration of
title to land the onus is on the plaintiff to prove title to a defined area
to which a declaration can be attached. And that defined area, in my humble
view, is the boundary of the land. In
Omoregie
v. Idugiemwanye (1985) 2
NWLR (Pt. 5) 41, this court held as follows:
(1)
In an action for declaration of title, it is the duty of the
plaintiff to show quite clearly the area of land to which his claim relates.
(2)
One of the ways of showing the specific area-claimed is to file a
plan of the area; such plan being properly orientated, drawn to scale and
accurate and reflecting the boundary features.
(3)
A court will not grant a decree of declaration of title in respect of
an undefined area.
See also
Odiche
v. Chibogwu (1994) 7 NWLR
(Pt. 354) 78; Umesie v.
Onuaguluchi (1995) 9 NWLR (Pt. 421) 515;
Nnadozie v. Omesu
(1996) 5 NWLR (Pt. 446) 116 and
Ijade v. Ogunyemi
(1996) 9 NWLR (Pt. 470) 17. The burden of
proof of the identity of the land does not shift one inch. It is totally on
the plaintiff.
The test for the establishment
of the identity of land is whether a surveyor can, from the record, produce
an accurate plan of such land. While it is the law that a plan is not in all
cases a sine qua non, some description is necessary to make a
disputed land ascertainable. See
Awere
v. Lasoju (1975) NMLR
100; Akpagbue v. Ogu
(1976) 6 SC 63; Ezeudu v.
Obiaqwu (1986) 2 NWLR (Pt. 21) 208;
Idehen v. Osemwenkhae
(1997) 10 NWLR (Pt. 525) 358. Where a
plaintiff pleads a survey plan, he must tender the plan at the trial. Where
he fails to do so, the court is entitled to invoke section 149(d) of the
Evidence Act. I will return to this.
With the above position of the
law, I should go to the factual position. Paragraphs 3, 4 and 5 of the
Amended Statement of Claim aver to the identity of the land:
"3.
That the Plaintiff avers that the land in dispute is situate, lying
and being at between Obedu Stream and
Iyana-Oba Stream in Ofatedo.
4.
The land in dispute is bounded as follows:-On the first side by
Joseph Aremu's land, on the second side by
Buraimoh Dunmoye's
land, on the third side by Alhaji
Oseni Olaniyonu's
land and on the fourth side by Karimu
Olawale's land.
5.
The Plaintiffs family has caused the land in dispute to be surveyed
and Survey Plan No. FOY/385/85 of 10/6/85 was produced."
In
paragraph 4 of the Amended Statement of Defence, the respondent
averred:
"The Defendant avers with
reference to paragraphs 2, 3, 4 and 5 of the Plaintiffs Amended Statement of
Claim that the defendant does not know the land in dispute as claimed by the
Plaintiff but further avers his own parcel of land is situate, lying and
being along Ido-Osun,
Osogbo Road, Ede."
By the above, the parties
joined issues on the identity of the land in dispute.
The burden is therefore on the appellant to prove the identity of the
land. Did he prove the above
paragraphs of the Amended Statement of Claim?
PW1
in his evidence in-chief at page 42 of the Record said:
"There is a foot path used by
the school children that forms the boundary between the land in dispute and
Olaniyan's farmland. Odo
Iya Oba (stream) is also another physical
feature forming boundary between the land in dispute and
Buraimoh's farmland. I don't know the other
physical features that form the other boundaries.
PW2
.said at page 43 of the Record:
"I know the land in dispute.
It is between the streams of Odo-Oba and
Obedu in Balogun's
Compound, Ofatedo. I know the owners of the
boundary farmlands to this land in dispute. They are: (1) Joseph
Aremu, (2) Karimu
Olawale, (3) Buraimoh
Dunmoye and (4) Oseni
Olaniyan."
Under cross-examination,
witness said at page 44 of the Record:
"The land in dispute is not
within Balogun's compound but by the side of
PW3,
Joseph Aremu, who featured in the evidence of
PW2, said at page 46 of the Record:
"The land in dispute is
situated at between Odo-Iya Oba and another
stream which name I don't remember now. My own farmland forms boundary with
the family land of the plaintiff in dispute. The physical feature forming
our boundary is Araba tree."
PW4
said at page 48 of the Record:
"I know the land in dispute.
It is within Odo-Oba and
Odo Obedu."
Witness said under
cross-examination at page 48 of the Record:
"I know that there are natural
features forming boundary between our family land and another. There is no
such feature between the Plaintiffs family and ours."
PW5
said under cross-examination at page 50 of the Record:
"The features forming boundary
line between Joseph Aremu's family land and the
Plaintiff's land in dispute are kolanut trees
and cocoa trees. Between Buraimoh
Dunmoye's family land and the Plaintiffs family
land are kolanut trees and cocoa trees as
demarcating features. Between Karimu
Olawale's family land and the Plaintiffs family
land there are cocoa and kolanut trees forming
boundary features. The Plaintiffs family land is about a mile square."
PW6
said at page 51 of the Record:
"There is a river called
Odo-Obedu which is in between the Plaintiffs
family land in dispute and my own family land. The land in dispute is
between Iddo-Oshun and
Ofatedo."
Witness said under
cross-examination at page 52 of the Record:
"The features that form
boundary between the plaintiffs’ family land and our land are cocoa,
kolanut and lapalapa
trees."
It is in the light of the
above evidence that learned counsel for the respondent asked,
"which
parcel of land was the appellant and his witnesses talking about for
consideration as the subject matter of dispute between the appellant and the
respondent?"
The question is germane and
relevant because of the contradictions in the evidence of the witnesses.
Certainly, they cannot be talking about the same land, giving different
versions of the contents and geography surrounding the land in dispute.
The base-line or reference
point is the pleading of the appellant; the relevant portions of which I
have set out above. They are paragraphs 3, 4 and 5 of the Amended Statement
of Claim. It is averred in paragraph 3 that the land in dispute is
situate between Obedin
Stream and Iya-Oba Stream in
Ofatedo. Paragraph 4 averred to the boundaries
"on the first side by Joseph Aremu's land, on
the second side by Buraimoh
Dunmoye's land, on the third side by Alhaji
Oseni Olaniyan's
land and on the fourth side by Karimu
Olawale's land.
Joseph
Aremu did not remember the name of one of the streams and it is the
Obedu stream. This is strange to me. How can a
very important witness on boundary forget the name of a stream in a case he
appears to give evidence? By his evidence, the witness did not prove
paragraph 3 of the Amended Statement of Claim.
PW2
was Buraimoh Ogungbile.
PW2 gave contradictory evidence. He said in
examination in-chief that the land in dispute is between the streams of
Odo-Oba and Obedu in
Balogun's Compound; he gave contrary evidence
under cross-examination. He said under cross-examination that the land in
dispute is not within Balogun's Compound. Which
is the evidence to believe? Unfortunately, a court of law cannot pick and
choose one aspect of evidence and throw away the other in the circumstances
of the evidence of PW2.
PW4
was Buraimoh Dunmoye,
averred to in paragraph 3 of the Amended Statement of Claim. He said in
examination in-chief that the land in dispute "is within
Odo-Oba and Odo-Obedu".
The evidence did not vindicate paragraph 3 of the Amended Statement of Claim
which averred that the land "is situate, lying and being at between
Obedu stream and Iya-Oba
stream in Ofatedo." Even if one is prepared to
say that the "Odo-Obedu" version of the witness
is the same as "Obedu" (a fairly dangerous
conclusion in the absence of evidence), it is difficult to come to the
conclusion that the "Odo-Oba" version of the
witness is the same as Iya-Oba in paragraph 3 of
the Amended Statement of Claim.
PW5,
Oseni Olaniyan,
averred to in paragraph 3 of the Amended Statement of Claim, said under
cross-examination that "the features forming boundary line between Joseph
Aremu's family land and the plaintiffs land in
dispute are kolanut trees and cocoa trees. That
evidence contradicts the evidence of PW3, Joseph
Aremu, who shares common boundary with the
appellant, in the language of paragraph 3 of the Amended Statement of Claim,
"on the first side." He said in his evidence that the physical feature
forming the boundary is Araba tree. Although my
knowledge of botany is very poor, it is not my understanding that
Araba tree is the same as
kolanut tree and cocoa tree.
PW6,
Alhaji Karimu
Olawale, averred to in paragraph 3 of the
Amended Statement of Claim, said in evidence that the land in dispute is
"between Iddo-Oshun and
Ofetedo." He also said that the river called
Odo-Obedu is between the plaintiff’s family land in dispute and his
own family land. As there is no such averment in paragraph 3 of the Amended
Statement of Claim, the evidence of PW6 goes to
no issue. It is elementary law that parties are bound by their pleadings and
facts not pleaded go to no issue. This principle of law is to ensure that
the adverse party does not spring any surprise at the trial by giving
evidence on what was not pleaded.
I think I have taken all the
persons mentioned in paragraph 4 of the Amended Statement of Claim.
PW1 is not mentioned there. I should take his
evidence also. PW1, the Oba
Olafa of Ofatedo, knows only the boundary
of Odo-Iya Oba stream. He does not know "the
other physical features that form the other boundaries." While this sounds
strange, considering the status of an Oba, paragraph 3 of the Amended
Statement of Claim did not aver to Odo
Iya Oba stream. Accordingly his evidence goes to
no issue.
That takes me to the survey
plan averred to in paragraph 5 of the Amended Statement of Claim. Although
the survey plan was averred to in paragraph 5 of the Amended Statement of
Claim, it was not tendered in evidence. Why? As I said earlier in this
judgment, this is a case where a court of law can invoke section 149(d) of
the Evidence Act "that evidence which could be and is not produced would, if
produced, be unfavourable to the person who withholds it." See
Onuwaje
v. Oqbeide (1991) 3 NWLR
(Pt. 178) 147; Chief Udo v. Chief
Okupa (1991) 5 NWLR
(Pt. 191) 365; United Bank of Africa Ltd, v. Ibhafidon
(1994) 1 NWLR (Pt. 318) 90;
Oqwuru v. Cooperative Bank of Eastern Nigeria Ltd. (1994) 8
NWLR (Pt. 365) 685; Tsokwa
Motors (Nig.) Ltd, v. Awoniyi (1999) 1
NWLR (Pt. 586) 199.
The position of the law is
that survey plan is not necessary where the identity of the land is not in
dispute or there is cogent evidence of the identity of the land. But where
the identity of the land is in dispute, such as in this case, and there is
no cogent evidence on the identity of the land, the appellant ought to have
tendered the survey plan averred to in paragraph 5 of the Amended Statement
of Claim.
Learned counsel for the
appellant submitted that the Court of Appeal did not properly analyse the
case of the parties. With respect, I do not agree with him. The Court of
Appeal, in my humble view, properly analysed the case of the parties. It is
clear from what I have said that the appellant as plaintiff did not prove
his case and the learned trial Judge was clearly in error in giving him
judgment. The Court of Appeal was therefore correct when the Court said in
the final paragraph of its judgment at page 140 of the Record:
"In a case of declaration of
title to land a Plaintiff is required to prove his case with cogent,
convincing and satisfactory evidence and once he has satisfied these
requirements the court is bound to exercise its discretion in his favour,
and grant the reliefs sought. I have doubt in my mind that the Respondent in
his case discharged the burden placed on him by the law."
I entirely agree with the
Court of Appeal. This appeal has no merit and it is therefore dismissed. I
award
Judgment delivered by
Dahiru
Musdapher.
J.S.C.
I have read in advance the
judgment of my learned brother Niki
Tobi, JSC just
delivered with which I entirely agree, for the same reasons set out in the
aforesaid judgment, which I respectfully adopt as mine, I too, find this
appeal as lacking in merit. I therefore dismiss it and affirm the decision
of the court below. I award
Judgment delivered by
Walter Samuel Nkanu
Onnoghen, J.S.C.
This is an appeal against the
judgment of the Court of Appeal holden at
The claim of the plaintiff
before the trial court, as per the amended statement of claim, is as
follows:-
"(1) A
Declaration to a Statutory Right of Occupancy in respect of all that piece
or parcel of land situate, lying and being at between
Obedu Stream and Iya Oba Stream in
Offatedo.
(2)
The sum of
(3)
Perpetual injunction restraining the Defendant, their servants,
agents and or any one claiming through them from committing any further act
of trespass on the said land."
The facts of the case include
the following:
It is the appellant's case
that the land in dispute, which lies or situate between
Odo-Oba and Obedu Streams,
Offatedo, is bounded on the first side by Joseph
Aremu's land, on the second side by
Karimu Olawale's
land, the third by Buraimoh
Dumoye's land, and the forth by Oseni
Olaniyan's land, and that the said disputed land
was granted to his grandfather by name Ogunyemi
by Oba Atoloye who was the first
Olofa of Offatedo
who was in turn granted a large piece or parcel of land including the land
in dispute by Balogun
Osungbekun of Ibadan, very many years ago; that his grandfather
cultivated economic and food crops on the land; that after his death, he was
succeeded by the plaintiffs/appellant's father who continued to occupy the
land and cultivate same and was in turn succeeded by the
plaintiff/appellant; that the appellant was in peaceful possession of the
land until 1985 when the respondent allegedly trespassed thereto.
On the other hand, the case of
the respondent is that the land was granted to him by Oba
Laoye, the late Timi
of Ede in 1975 and was put into possession in accordance with the customs
and traditions of the people; that the appellant is
estopped from contesting the title of the Timi
of Ede in view of the judgment in suit No. HOS/42/64
delivered on 14/2/68 and tendered and admitted as exhibit D.
As stated earlier in this
judgment, the trial court gave judgment to the appellant which judgment was
set aside by the Court of Appeal resulting in the instant appeal.
The issues for determination
in this appeal are stated by Prince J.O.
Ijaodola in the appellant's brief as follows:-
"i.
Whether Court of Appeal properly set aside the trial High Court's
judgment, and
ii.
Whether the Court of Appeal properly analysed the parties' case."
On the other hand the learned
Senior Counsel for the respondent N.O.O.
Oke Esq, SAN
identified a single issue for determination, to wit:
"(i)
Whether the
Court of Appeal was not right in
setting aside the judgment of the trial court on the ground that the
Appellant's case on the ground of the identity of the land in dispute is not
made out."
It is very clear from the
judgment of the lower court and the arguments of both
Counsel in their briefs of argument that the primary issue is whether
the appellant, on whom lies the burden of proving the identity of the land
whose title he claims, has discharged the burden so as to entitle him to the
declaration sought. The requirement of establishment of the identity of the
land in dispute is in addition to the duty placed on the appellant, as
plaintiff, to establish the mode by which he came to own the disputed land.
In the instant case, the appellant relied on traditional history of grant by
the Olofa of Offatedo.
It is however settled law that where a plaintiff fails to establish with
certainty the identity of the land claimed, he must fail in his claim of
declaration of title irrespective of the weakness in the case of the defence
particularly as it is the law that a plaintiff, in an action for declaration
of title to land, must succeed on the strength of his case and not on the
weakness of the defence, though in an appropriate case where the case of the
defence supports that of the plaintiff, the plaintiff is entitled to rely on
such evidence in support of his case to prove his case.
The question then is: what is
the case of the parties as regards the issue of identity of land in dispute?
The answers are as pleaded in paragraphs 3, 4, 5 & 6 of the Amended
Statement of Claim and paragraph 4 of the Amended Statement of Defence,
which are as follows:
"(3)
That the plaintiff avers that the land in dispute is situate, lying and
being at between Obedu Stream and
Iyana-Oba Stream in Ofatedo.
(4)
The land in dispute is bounded as follows:-
On the first side by Joseph Aremu's land, on the
second side by Buraimon
Dunmoye's land, on the third side by Alhaji
Olaniyonu's land and on the forth side by
Karimu Olawole's
land.
(5)
The Plaintiff "s family has caused the land in dispute to be surveyed
and survey plan No. FOY/385/85 of 10/6/85 was produced.
(6)
The plaintiff avers that Oba Atoloye who
was the first Olofa of
Ofatedo was granted among other parcels of land at
Ofatedo, by the then
Balogun Oshungbekun of Ibadan."
In
reaction to the
above, the
respondent pleaded
as follows:-
"(4) The
Defendant avers with reference to paragraphs 2, 3, 4 and 5 of the
Plaintiff's Amended Statement of Claim that the defendant does not know the
land in dispute as claimed by the plaintiff but further avers his own parcel
of land is situate, lying and being along Idosun,
Osogbo Road, Ede."
It is very clear that both
parties are not claiming the land through the same source but through two
different grantors from two different but neighbouring communities. While
the appellant is claiming through the Oba of Ofatedo
community, the respondent claims through the Oba of Ede.
When one looks at the evidence
adduced by the appellant in support of his pleadings on the identity of the
land in dispute, one finds irreconcilable conflicts between the facts
pleaded and the evidence adduced in proof thereof. That apart, the appellant
failed and or neglected to tender the survey plan of the land as pleaded in
paragraph 6 of the Amended Statement of Claim which would have settled the
matter once and for all. I therefore agree with the lower court, as found at
page 136 of the record thus:-
"Still, on the identity of the land in dispute it is instructive to note
that no survey plan of the land was tendered in evidence in support of
paragraph (5) of the Amended Statement of Claim. Authorities are however
abound that it is not in every claim of a
declaration to title to land that a survey plan becomes absolutely necessary
to prove the claim and identity of the land ----- The above principle will
only be applicable where there is proper identification vide the pleadings
and evidence, but this is lacking in this case."
I completely agree with the
above holding of the lower court as it is settled law that where the
identity of the land in dispute is in dispute, there is need to produce a
survey plan particularly if the facts produced in evidence cannot establish,
with certainty, the identity of the said land - see
Kyan
v. Alkali (2001) 11 NWLR (pt. 724) 412;
Odefeso v. Coker (1999) 1
NWLR (pt. 588) 654.
In conclusion, I agree with
the reasoning and conclusion of my learned brother Tobi,
J.S.C. in the lead judgment, a draft of which I
had read, that the appeal is without merit and ought to fail. I therefore
order accordingly and abide by the consequential orders contained in the
said lead judgment including the order as to costs.
Appeal dismissed.
Judgment delivered by
Francis Fedode Tabai. J.S.C
I had the privilege to read in
advance the leading judgment of my learned brother Niki
Tobi J.S.C. He
analysed the evidence very carefully and concluded that the appeal has no
merit.
The core issue is that of
identification of the land claimed. It is settled law that in a claim for
declaration of title to land, the onus is on the Plaintiff to prove clearly
the boundaries of the land claimed. See
Makanjuola
v. Ogunshola 4 WACA
159; Udofia v. Afia
6 WACA 216 at 217;
Amata
v. Modekwa 14 WACA
580 at 583.
The standard of proof required of the Plaintiff is such that a surveyor
taking the record could produce a plan showing accurately the land in
respect of which title is claimed. See
Makanjuola
v. Ogunshola (Supra);
Kwadzo v. Adjei 10
WACA 274.
In this case no two witnesses
told the same story about the boundaries of the land claimed. On this issue
of the boundaries of the said land claimed the Plaintiffs/Appellants case
was replete with contradictions. And to make matters worse the survey which
they pleaded in paragraph 5 of the Statement of Claim was not tendered. The
Plaintiffs/Appellants cannot, in these circumstances, claim to have proved
title to a land which identity they have failed to establish.
In view of the foregoing short
commentary and the better reasons clearly set out in the leading judgment, I
also dismiss the appeal. I abide by the order on costs in the leading
judgment.
Judgment delivered by
Pius
Olayiwola Aderemi,
J.S.C
This is an appeal against the
judgment of the Court of Appeal (Ibadan Division) delivered on the 31st
of May 1991. The appellant, who was the plaintiff before the court of trial,
had, by the endorsement in paragraph 16 of his amended statement of claim
sought against the respondent, who was the defendant before that court, the
following reliefs: -
"(1) a
declaration to a statutory right of occupancy in respect of all that piece
or parcel of land situate, lying and being at between
Obedu Stream and Iya Oba Stream in
Ofatedo.
(2)
the sum of
(3)
perpetual injunction restraining the
defendant, their servants, agents and/or anyone claiming through them from
committing any further act of trespass on the said land."
After the
exchange of
pleadings between the
parties, evidence taken from both sides in proof of the averments in
their respective pleadings and the final addresses of their respective
counsel, the learned trial judge, in a reserved judgment delivered on 30th
of May 1991, granted the reliefs sought by the plaintiff/appellant with
costs. Dissatisfied with the said judgment, the present respondent, as
defendant then, appealed to the court below which, after taking the
submissions of the respective counsel highlighting the issues in the
separate briefs of argument filed by the parties, in a reserved judgment
delivered on the 31st of May 1991, the court below allowed the
appeal, mainly, for the reason of failure to prove, with certainty, the
identity of the land in dispute. Again, dissatisfied with the judgment, the
original defendant, as respondent before the court below, appealed to this
court. In his brief of argument, the present appellant raised two issues for
determination and they are as follows: -
"(1)
Whether the Court of Appeal properly set aside
the trial High Court's judgment.
(2)
Whether the Court of Appeal properly analysed the parties' case."
The respondent, for his part,
raised only one issue for determination and it is in the following terms: -
"Whether the Court of Appeal was right in setting aside the judgment of the
trial court on the ground of the identity of the land in dispute is not
made."
In my humble view, the only
issue raised by the respondent captures the real matter in controversy in
this appeal. Proof of identity of a piece of land in dispute is of utmost
importance if any success is to be attained in any land suit. A plaintiff
seeking the reliefs of the nature claimed in this matter has a cardinal duty
to show, with certainty, the area of land being claimed and to which he
wants the order of court to relate to; failure to do so, the entire case
must stand dismissed. See
Baruwa
v. Ogunsola 4 WACA
159; Elias v. Omobare (1982) 5 S.C. 25;
Awere v.Lasoju
(1975) N.M.L.R. 100 and
Sangosanya v. Salawu (1975)
N.M.L.R. 27. Although a survey plan is not
an absolute necessity in every land case. See
Olusanmi
v. Oshasona (1992) 6
N.M.L.R. (pt.245) 22; where however a
plaintiff desires to draw up or cause to be drawn up a survey plan showing
the land in dispute, such a plan must show clearly the dimensions of the
land, the boundaries and other salient features. See
Arabe
v. Asanlu (1980) 5-7 S.C. 78. The demand for
this is in consonant with the maxim:
"Id Cerium Est Quod Cerium
Reddi Potest; Sed
It Magis Certum
Est Quod De Semet
Ipso Est Certum"
meaning: "That is certain which can be made certain; but that is most
certain which is certain on the face of it." See
Ayinla
v. Adisa (1992) 7 N.W.L.R.
(pt.255) 566.
I have meticulously read the
evidence led in relation to the identity of the land in dispute. I regret to
say that the collection of the pieces of evidence led by
PW1, PW2,
PW3, PW4,
PW5 and PW6 do not,
together, point to the same land upon which the plaintiff/appellant is
litigating. I need not reproduce those salient pieces of evidence here for
they have been reproduced in the leading judgment of my learned brother,
Tobi, J.S.C. It is
sufficient for me to say that the collection of the pieces of evidence of
these witnesses does not, in the slightest imagination, point with any
clarity to the land, the subject matter of dispute in this matter. I also
observe that the parties tried to give different names to the land disputed
upon in this case. Let me say that the ascription of different names by the
parties to a disputed land, even with alarming degree of imprecision, may
not necessarily be detrimental to a party's case. What is of utmost
importance and indeed, the emphasis in a case of this nature is that the
parties must be ad idem on the same area of land that is being given
different names for various reasons. See
Aromire
v. Awoyemi (1972) 1 ALL
N.L.R. (p.1) 101 and
Makanjuola v. Balogun
(1989) 3 N.W.L.R. (pt.108)
192. In the instant case, it is very clear that the evidence led by the
witnesses called by the plaintiff/appellant is totally lacking in
descriptive value of the land litigated upon. On that alone, the case ought
to have been dismissed ab initio.
It is for this little
contribution but most especially for the copious reasoning contained in the
leading judgment that I agree with my learned brother
Tobi, J.S.C., that this appeal is
unmeritorious. I also agree with the judgment of the court below and in the
final analysis, I dismiss the appeal. I abide by all other consequential
orders made in the leading judgment including
the order as to costs.
Counsel
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