Dudu Addah & Ors V. Hassan Sahi Ubandawaki (2015)
LAWGLOBAL HUB Lead Judgment Report
JOHN AFOLABI FABIYI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Sokoto Division (‘the court below’ for short) delivered on the 21st day of April, 2011. Therein, the judgment of Gulma, J. delivered against the respondent and in favour of the appellants on the 31st day of January, 2000, at Zuru Division of the Kebbi State High Court of Justice, (trial court) was set aside. As well, the suit of the appellants, as plaintiffs before the trial court, was dismissed in its entirety.
It is apt to state the relevant facts of the matter at this point. The appellants, as plaintiffs before the trial court, filed their writ of summons against the respondent. In their amended Statement of Claim, they claimed on page 12 of the records the following reliefs:-
“1. A declaration that the land in dispute belongs to the fathers of the plaintiffs and they inherited same from his (sic) death from him (sic).
- A declaration that the defendant’s entry into the land is illegal and constitutes trespass.
- AN ORDER of permanent injunction directing the defendant to vacate from the said land.
- AN ORDER of permanent injunction restraining the defendant, his heirs or previes (sic) from further entry into the said land.
- AN ORDER of permanent injunction restraining the defendant, his heirs or previes (sic) from further claiming the title of the said land.”
The appellants claimed that they inherited the land in dispute from their fathers and that it was Addah who gave the land to the respondent to build his house and for cultivation.
The respondent who was not represented by counsel at the trial court filed a defence of a rather peculiar nature. Therein, he denied that he encroached on the appellants’ land. He claimed ownership of the land in dispute through inheritance from his own father – Kyoti, over 70 years ago.
The learned trial judge garnered evidence from witnesses called on both sides of the divide. After he was addressed by the plaintiffs’ counsel, he gave judgment in their favour and declared as follows:-
“1. That the land in dispute belongs to the fathers of the plaintiffs, who inherited same upon the death of their fathers.
- That the defendant, his heirs, previes (sic) servants, agents, must vacate the land and must also not encroach upon the said land in future.
- That paragraph (1) above does include the land given to defendant by the fathers of plaintiffs, which said piece is near the Dam water, at the extreme Western part of the disputed land.
- That permanent land marks are to be erected immediately demarcating the said land in paragraph (3) from the land in paragraph (1) above. This is because the measurements of the said land in paragraph (3) are never consistent as the water level of the dam will always affect its size. Judgment is hereby entered in favour of the plaintiffs. Costs of N500 (Five Hundred Naira) awarded to the plaintiffs.”
The defendant felt unhappy with the position taken by the trial court and appealed to the court below which heard the appeal. In its judgment handed out on 21st day of April, 2011, it had no difficulty in allowing the appeal. The appeal against the judgment of the trial court was allowed. While same was set aside, the suit of the appellants, as plaintiffs at the trial court, was dismissed by the court below.
The plaintiffs have decided to appeal to this court.
Briefs of argument were filed and exchanged by the parties. On 27th October, 2014 when the appeal was heard, learned counsel on both sides adopted and relied on their respective briefs of argument. Learned counsel for the appellants urged that the appeal should be allowed while the learned counsel for the respondent urged that the appeal should be dismissed.
On behalf of the appellants, the two issues couched for determination of the appeal which were adopted by the respondent read as follows:-
“1. Whether in consideration of the pleadings vis-a-vis the evidence led, the lower court was not in error when it held that the land in dispute was not identified by the appellants.
- Whether in view of the evidence adduced, the lower court was not wrong to have held that the appellant (sic) failed to prove their case before the trial court.”
I wish to start with the consideration and the resolution of issue 2 as restated above by me.
Arguing this issue, Hassan Liman, SAN who settled the appellants’ brief of argument, maintained that the onus of proof in a suit for declaration of title to land lies squarely on the plaintiff who must succeed on the strength of his case and not on the weakness of the defendant’s case. He cited the case of Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) 393.
Senior counsel maintained that there are five ways of establishing ownership of title to land in dispute. In support, he cited the case of Obineche v. Akusobi (2010) All FWLR (Pt. 533) 1839 at 1858-1859. He submitted that once the plaintiff can establish any of the ways of proving the ownership of the land in dispute, as set out in the case cited, it suffices for the court to grant the plaintiffs’ claim.
Senior counsel submitted that the court below misconceived the facts of the case. He referred to the case of Nwokorobia v. Nwogu (2009) All FWLR (Pt. 476) 1868 at 1890. He observed that the appellants’ witnesses were not cross-examined by the respondent. Learned senior counsel opined that where evidence is adjudged inconclusive, the court must rest the case on question of facts. He asserted with force that if there is any lacuna in the evidence of the appellants based on ownership of the land in dispute, it ought to be supposed to have been given the necessary cogency and support by the fact of act of possession and ownership of the adjacent land as established by PW4 and the evidence of the respondent during cross-examination.
Learned senior counsel observed that the respondent did not adduce any crucial evidence on the material issue in dispute. He felt that the appellants’ case should succeed on minimal proof. He cited the cases of Obiche v. Adetona (2009) All FWLR (Pt. 478) 345 at 377 and Oduwole v. West (2010) 10 NWLR (Pt. 1203) 598 at 621.
Senior counsel urged that this issue be resolved in favour of the appellants.
In the brief of argument settled by Tajudeen Oladoja, Esq., it was observed that the crux of the appellants’ case that they inherited the land in dispute from their fathers and that the respondent is a stranger thereon was denied by the respondent as he joined issue on same. He maintained that going by the state of pleadings and the evidence led by the appellants, they relied on traditional evidence in attempting to prove their claim of ownership of the land in dispute.
Learned counsel equally observed that there are five ways of establishing title of land. In support, he cited the case of Idundun v. Okumagba (1976) NMLR 200 at 210. He further submitted that the burden of proof lies squarely on the appellants who sought declaration of title to the land in dispute. In support, he cited Adeosun v. Jibesin (2001) 11 NWLR (Pt. 724) 290 at 306. Further, he maintained that for the appellants to obtain the declaration of title relief sought, they were obliged to establish by cogent evidence how their fathers – Addah and Yage came to own the land.
In support he cited Ekpo v. Ita (1932) 11 NLR 68 and Thomas v. Preston Holder 12 WACA 78.
Learned counsel submitted that a party relying on traditional history must plead his root of title. They must show by credible evidence how their fathers got the land, either by grant, settlement or conquest. He cited, in support, the cases of Akinloye v. Eyiola (1968) NMLR (Pt.221) 1; Dike v. Okoloedo (1999) 5 NWLR (Pt.623) 359 at 370.
Learned counsel further submitted that, in an action for declaration of title to land a plaintiff must rest on the strength of his own case and not on the weakness of the defence. He cited Kodinliye v. Odu (1963) 1 All NLR 417; Eze v. Alatise (2000) 10 NWLR (Pt.676) 470; Adone v. Ikebudu (2001) 14 NWLR (Pt. 733) 385 at 409.
Learned counsel further stressed that unless a defendant files a counter-claim, the plaintiff has the primary duty to establish his claims by credible and consistent evidence in accordance with his pleadings. He must satisfy the court that he is entitled, on the evidence brought by him, to the declaration sought. He cited, in support, the cases of Odofin v. Ayoola (1984) 11 SC 72 and Okafor v. Idigo (1984) 1 SCNLR 481. He further reiterated the fact that the weakness of the defence and failure to cross-examine the appellants’ witnesses will not help the appellants and the proper judgment is to dismiss the claim. In support, he cited Nwadiogbe v. Unadozie (2001) 12 NWLR (Pt. 927) 315.
Learned counsel finally referred to the case of Olakunle Elias v. Chief Timothy Omo-Bare (1982) All NLR 75. He submitted that the justices of the court below adopted a right approach in arriving at their conclusion in allowing the respondent’s appeal before them. He stressed that the appellants failed to prove how they own the land in dispute as it is not enough for them to say that the land belonged to their fathers. They needed to show how their fathers came about the land in dispute.
Learned counsel urged that the second issue be resolved in the negative.
Both sides of the divide are at one that it is now settled law that there are five ways of establishing title to land. This is as set out in the case of Idundun v. Okumagba (1976) NMLR 200 at 210 per Fatayi-Williams, JSC (as he then was and of blessed memory) as follows:-
“As for the law involved, we would like to point out, that it is now settled that there are five ways to which ownership of land may be proved —- FIRSTLY ownership of land may be proved by traditional evidence.
SECONDLY ownership of land may be proved by production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved.
THIRDLY acts of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner (See: Ekpo v. Ita 11 NLR 680).
FOURTHLY acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land (See: section 45 of the Evidence Act.)
FINALLY proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.”
It is basic that each of the five ways stated above suffices to establish title to a disputed piece of land. The above stated ways of proving title to land have been restated times without number by this court, in the main.
The case of Idundun v. Okumagba (supra) was closely followed by Piaro v. Tenalo (1976) 12 SC 31. See also Balogun & Ors. v. Akanji & Anr. (1988) Vol. 19 1 NSCC 180; (1988) 1 NWLR (Pt.70) 301; Onwugbufor & Ors. v. Okoye & Ors. (1996) 1 NWLR (Pt. 422) 252, Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) 393; Alli v. Alesinloye (2000) 6 NWLR (Pt.600) 177; Eze v. Alatishe (2000) 10 NWLR (Pt. 676) 450.
In this suit, the appellants herein, as plaintiffs before the trial court, placed reliance on traditional evidence in their bid to establish their title to the land in dispute.
The law is now well established and settled that where a person relies on traditional history as his root of title, the onus is on him to plead the root of title and names and history of his ancestors. He should lead evidence to establish same without any missing link. See: Anyanwu v. Mbera (1992) 5 NWLR (Pt.242) 386; Akinloye v. Eyiola (1968) 2 NMLR 92; Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413.
A court has no jurisdiction to supply any missing link in a genealogical tree from progenitor to a claimant. Refer to Odi v. Iyala (2004) 4 SCNJ 35 at 54.
It should also be stated clearly that the weakness of the defendant’s case in a land suit touching on declarations, as herein, does not assist the plaintiff’s case. He swims or sinks with his own case. See: Animashanu v. Olojo (1991) 10 SCNJ, 143; Dantata v. Mohammed (2002) 7 NWLR (Pt.664) 176; Ekundayo v. Baruwa (1965) 2 NWLR 211; Nwokidu v. Okanu (2010) 3 NWLR (Pt.118) 362 and Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 373-374 wherein it was graphically captured that the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlements to the declaration by his own evidence.
The court below found that the respondent in his statement of defence, joined issue with the appellants in their statement of claim wherein they claimed ownership of the land in dispute through inheritance from their fathers.
It must be stressed that there was no attempt by the appellants to establish any particulars, no matter how slight, of the intervening owners of the land through whom they claimed title to the land in dispute. The failure should have been considered fatal to their claim for title to the land in dispute based on traditional evidence. The finding of the trial court in this regard was perverse as there was no evidence to show how Addah and Yage became the owners of the disputed land without tracing their history to their original ancestors. The right will not be conferred on the appellants simply upon the state of pleadings or even by admission by the respondent. See: Dumez Nig Ltd. v. Nwakhoba (supra) at pages 373-374,. Olakunle Elias v. Chief Timothy Omo-Bare (supra).
The appellants had the duty to show by credible evidence how their fathers’ ancestor got the land, either by grant, settlement or conquest. This, they failed to do. The court below, no doubt about it, adopted the right approach. Refer to Akinloye v. Eyiyola (supra) and Dike v. Okoloedo (supra) at page 370. The court below was also right when it found that the appellants’ claim must rest on the strength of their case and not on the weakness of the defence. See: Kodinliye v. Odu (supra) and Adone v. Ikebudu (supra) at page 409.
It is clear to me that the court below adopted a right approach in arriving at its conclusion in allowing the respondent’s appeal before it. I feel convinced beyond peradventure that issue 2 should be, and is accordingly resolved in the negative against the appellants.
Issue 1 is ‘whether in consideration of the pleadings vis-a-vis the evidence led, the lower court was not in error when it held that the land in dispute was not identified by the appellants’.
Arguing this issue 1, senior counsel tacitly agreed that the parties joined issue on the identity of the land in dispute. He maintained that the witnesses called by the appellants testified that the land in dispute is situated in Koga Village near Zuru Dam and that the respondent did not deny same. He maintained that the trial court was right to have acted on the evidence adduced by the appellants. The case of Yakubu v. M.W.T. Adamawa State (2006) 10 NWLR (Pt.989) 546 was cited in support.
Senior counsel maintained that it is settled that in a matter touching on declaration of title to land, the onus is on the claimant to establish the identity of the land in dispute where same is challenged. He cited the cases of Obiche v. Adetona (2009) All FWLR (Pt.478) 345 at 372; Ogun v. Akinyelu (2004) 18 NWLR (Pt.905) 362 at 385; Oduwole v. West (2010) 10 NWLR (Pt.1203) 590 at 621, Chami v. U.B.A. Plc. (2010) 6 NWLR (Pt. 1191) 474 at 496 – 497; and Nwokorobia v. Nwogu (2009) All FWLR (Pt.476) 1868 at 1895.
Learned senior counsel urged that the issue be resolved in favour of the appellants.
On behalf of the respondent, it was observed by learned counsel that none of the witnesses of the appellants gave evidence on the boundaries of the land in dispute as pleaded in paragraph 6 of the amended Statement of Claim.
Learned counsel submitted that any evidence that is not in conformity with pleadings would go to no issue. He cited Eze v. Ataise (2000) 10 NWLR (Pt. 676) 470; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598. He maintained that where a plaintiff claims for declaration and injunction, the area of the land in dispute must be properly identified in view of the injunctive order which cannot be granted in respect of an undefined area.
Learned counsel stressed that the evidence of the appellants failed to show with clarity and certainty before the trial court the boundaries of the land claimed by the appellants. He submitted that the appellants’ claim ought to have been refused. He cited Lorde v. Ihyambe (1993) 3 NWLR (Pt. 280) 197 at 207 and Oke v. Eke (1982) 12 SC 218 at 246.
Learned counsel observed that the description of the land in dispute by the trial judge is different from that in the pleadings and that he referred to a visit to locus in quo when there was, in fact, no such visit in the record.
Learned counsel stressed that a case belongs to the parties and not the court. He felt that a court is not competent to make a case for any of the parties as to do so will be going against all known principles of fair hearing or fair trial. He referred to the case of Akinsumi v. Adio (1997) 8 NWLR (Pt. 516) 277 at 292.
Learned counsel finally stressed that in view of the state of pleadings and the evidence led at the trial court, the court below, was not in error when it held that the land in dispute was not identified by the appellants. He urged that issue 1 be resolved against the appellants.
It is apt to remind the parties the salient ‘principle of definitive certainty’. It is that in this type of claim by the appellants, the land must be described clearly and sufficiently so that a Surveyor can, using the description, produce a plan of the land in dispute. See: Arabe v. Asanlu (1980) 5-7 SC 78, and Efetiroroje v. Okpaleke II (1991) 5 NWLR (Pt.193) 517. In this matter, the appellants did not tender any plan.
The appellants’ witnesses merely testified at large that the land in dispute is situated in Koga Village near Zuru Dam. In the main, the appellants have failed to establish the identity of the land in dispute clearly and with certainty.
I cannot surmise how any trained Surveyor can produce a plan, based on the scanty evidence led by the appellants at the trial court. The court below was on a firm stand when it found that the claim of the appellants cannot succeed on this score in the prevailing circumstance.
It has been rightly pointed out that the trial judge descended into the arena by giving a description of the boundaries of the land in dispute when there was no such evidence before him. The trial judge alluded to a surmised visit to locus in quo when there was no such visit contained anywhere in the record.
The court below found such a false assertion as been reprehensible. I agree with same. No judge should embark upon deliberate falsehood or go on his own voyage to furnish imaginary evidence on the identify of the land in dispute. After all, a judge should not set up for parties a case different from the one established by cold facts supplied by the parties as well as their pleadings. See: Oniah v. Onyiah (1989) 1 NWLR (Pt. 99) 514 and Ojo-Osagiev. Adonri (1994) 6 NWLR (Pt. 349) 131.
It is also settled that parties and the court are bound by the pleadings filed by the parties. Any evidence at variance with pleadings must be disregarded by the court. In short, the unrelated evidence adduced by appellants’ witnesses must be disregarded. See: Emegokwe v. Okadigbo (1973) All NLR 314 at 317; NIPC v. Thompson Organisation (1969) All NLR 134 at 138.
In short, this issue is also resolved in favour of the respondent.
I come to the final conclusion that the appeal is devoid of merit. It is accordingly dismissed as the judgment of the court below is hereby affirmed. The appellants shall pay N100,000:00 costs to the respondent.
This appeal was heard on 27th October, 2014. It was adjourned to 23rd January, 2015 for judgment. The unanticipated strike by JUSUN members started on 5th January, 2015 and was called off on 26th January, 2015. The effect of same has affected the delivery of this judgment within the mandatory period of 90 days.
Consequently, it is hereby delivered today – 30th January, 2015