Lasisi Akanni Buraimoh Vs Rebecca Ayinke Bamgbose (1988) LLJR-SC

Lasisi Akanni Buraimoh Vs Rebecca Ayinke Bamgbose (1988)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal by the defendant against the judgment of the Court of Appeal, Lagos Division, which had reversed the judgment of Okuribido, J., who had dismissed the plaintiff’s claim for title under native law and custom to and possession of that piece or parcel of land situate lying and being at Oseni Street, Obele Kolade, Lawanson, Surulere.

The case in the court of trial turned on whether the land in dispute was that of the plaintiff or the 1st defendant. At the court of trial a number of facts were really not in dispute. They were:

(i) That the plaintiff claims the land in dispute through one Joseph Olusoye Johnson who was granted the land by Abayomi Anjorin Family on a form of lease in 1940 at an annual rent of 5/- and a bottle of gin;

(ii) That Johnson was put in possession and erected a house on it in 1940, rebuilt in between 1944 and 1945;

(iii) That the land was formerly called Obele Kolade, later No.5 Obele Kolade village, then 20 Ekundayo Street and in 1960 Oseni Street; and

(iv) That as a result of a Supreme Court judgment in suit No.215 of 1951 Abayomi Anjorin Family lost title to the land, including the land in dispute, to Alago Asalu Family.

Up till this point, there was no dispute. From this point, however, the conflicting claims of both sides had different bases. Plaintiff claimed that some time after the said judgment, Alago Asalu Family partitioned the land the subject of suit No. 215/1951, and as a result of the partition the land in dispute became part of the land of Alhaja Suwebatu Falohun, a member of the family. The Alhaja, by a receipt dated 29th November, 1969 sold the land in dispute to Joseph Olusoye Johnson, and later by a deed of conveyance dated 22nd December, 1969, registered as No. 61 at Page 61 in Vol.1307 of the Deed, Registry, Lagos. Alhaja Falohun and Johnson conveyed the land in dispute to the plaintiff in fee simple.

From the point of difference, the 1st defendant’s case was also different. His case was that after the 1951 judgment Aboki Bada Family took possession of the land. On the 8th of November, 1962, the land was advertised for sale by a licensed Auctioneer, Mr. T.A.T. Martins. He denied partition of the family property of Aboki Asalu Family, a branch of Alago Asalu Family, and allocation of any part of the family property to Alhaja Suwebatu Falohun. Rather by a power of attorney dated 6th August, 1962, and registered as No. 58 at page 58 in Volume 1204 of the Lands Registry, Lagos, the principal members of Aboki Bada Family, including Alhaja Suwebatu Falohun gave a power of attorney to Chief O.S. Bada to sell and convey the land in dispute. Pursuant to that power, Chief Bada sold the in dispute to the 1st defendant and conveyed same to him by a deed of conveyance dated 9th day of July, 1969, which is registered as No. 13 at page 13 in Volume 1297of the Lands Registry, Lagos. The 1st defendant stated that he had always been in possession of the land and had erected a house on it and exercised other acts of possession and ownership over it.

So from the state of the cases before the High Court, the main issue was whether the plaintiff bought the land in dispute from Johnson who bought from Alhaja Suwebatu Falohun or the 1st defendant bought the land from Chief O.S. Bada, the attorney of Aboki Bada Family.

The findings of the learned trial Judge on the above contentious issues were summarized by Ademola, J .C.A., in his judgment in the Court of Appeal thus:

“(a) That the Supreme Court decision in Suit 215/1951 settled the question of title between Anjorin Abayomi and Alago Asalu in favour of Asalu family of which Aboki Bada is a branch.

(b) That after the case the family land was partitioned as in the Plan Exh. G and a portion of the land shown on Exh. G was allotted to Alhaja Suwebatu Ejide Falohun.

(c) The learned Judge also found that the first respondent was unable to show that what he bought by the conveyance he got was part of the 1.25 acres out the 59.9 acres of family land which Chief O. S. Bada was authorised by the family in the power of attorney Exh. F given him to sell.

(d) That the title of Alhaja Suwebatu Ejide Falohun was that of absolute ownership under native law and custom and that she could rightly convey that title. But what she conveyed in Exh. A was a fee simple estate to the appellant.

(e) It was also the finding of the learned Judge that the land in dispute had been in possession of the appellant through its predecessor in title since 1940 until the purported sale to the first respondent in 1969.”

To these I may add the further finding that the 1st defendant built on the land in dispute, as a tenant of Johnson, in 1958. It does appear that the learned Judge dismissed the plaintiffs case mainly on the ground that she did not call an expert to show that the land sold and conveyed to her in Exh. A. was part of the land partitioned to Alhaja Suwebatu Falohun.

There is no appeal against the above findings, nor have they been successfully challenged in any way. Based on those findings the learned Justice of Appeal, with whose judgment Kazeem, J.C.A. (as he then was) and Mohammed, J.C.A., concurred, held that the learned Judge should have entered judgment for the respondent (the plaintiff). Their Lordships relied on the case of Ogunbambi v. Abowab (1951) 13 W.A.C.A. 222.

In short that Court held in terms that the sole ground upon which the learned trial Judge dismissed the plaintiff’s case was untenable: that evidence of an expert is not the only admissible evidence on the point and that taking the findings and other available evidence into account the plaintiff was entitled to judgment.

In this court the learned counsel for the appellant, Mr. Sofunde, filed a brief. By reason of a procedural error, it turned out that the brief which the learned Counsel for the respondent, Mr. Fasanu, was to have relied upon was filed before the appellant had leave to appeal and so is a nullity. We, however, allowed him to address us orally. From the background of the above facts, Mr. Sofunde framed one issue for determination thus:

“Whether in a case where the claim is for a declaration of title and an order for possession, and the respective conveyances of the parties have been found not to confer title to the land in dispute the plaintiff can succeed when there was no evidence and/or finding that he was ever in possession although there was evidence that one of his predecessors in title was in possession, but the defendant had since gone into possession.”

Mr. Fasanu has taken objection to the issue as framed on the ground that it does not correctly reflect the factual situation arising from the decision of the Court of Appeal.

I must observe that this issue as framed takes it for granted that the respondent’s conveyance, Exh. A., has been found not to confer title to the land in dispute to her. That assumption would ignore the whole tenor of the judgment of the Court of Appeal. It must, I believe, be conceded by the learned counsel for the appellant that the learned trial Judge did not find Exh. A, the conveyance of the respondent, void or inadmissible. He rather held that an expert evidence was necessary to connect the land comprised in Exh. A., to the land partitioned to Alhaja Suwebatu Falohun. The real meat of the lead judgment in the Court of Appeal was directed to showing that, on the accepted evidence in this case, which included the above findings and Exh. A., the learned trial Judge should have found for the respondent on the declaration of title and possession. The case of Ogunbambi v. Abowab (1951) 13W.A.C.A. 222 was relied upon but the court did not elaborate on what aspect of the case. In that state of the facts, it looks to me that the above issue for determination, as framed by the appellant, cannot be said to be fair or any longer tenable, having due regard to the state of facts after the Court of Appeal decision.

I cannot over-emphasize the absolute need for counsel for an appellant, in an appeal coming before this court or the Court of Appeal, to frame the issues for determination in concrete terms, that is by reference to the relevant facts, rather than in the abstract. Considering the fact that a court in every case passes a subjective judgment based on the circumstances of each case, issues framed in the abstract, which may have their values in purely academic exercises, are entirely useless in actual appeals in court. They have a way of, to use an appropriate metaphor, drawing an irrelevant red herring across the blue horizon. They ought to be avoided.

One obvious result of the issue as framed by the learned Senior Advocate for the appellant is that he wrote his brief and addressed us as if the case could now be decided on possession, the title deeds of both parties having been declared void or not applicable. That cannot be the correct position with respect to the respondent’s case after the Court of Appeal decision. The correct issue should have been whether she was correctly granted a declaration of title by that court, based as it were on the above findings and available evidence including Exh. A.

I should, therefore, decide this appeal by considering whether the Court of Appeal was right in holding, in effect, that the type of expert evidence which the learned trial Judge insisted upon and for which he dismissed the respondent’s case was not necessary in the circumstances of the case.

The first point I must note is that, bearing in mind the fact that, unless this case came within the recognized exceptions the onus of proof is on the plaintiff/respondent, the first question that must be asked is which of the two competing claimants succeeded in tracing his title to the admitted owner; that is Alago Asalu Family as a result of the 1958 Supreme Court decision in the 1951 case

In her pleading the respondent traced her title through Joseph Oluseye Johnson through Alhaja Suwebatu Falohun, and through her to Aboki Bada Family the admitted owners of the land in dispute by reason of the 1958 Supreme Court decision and subsequent partition of the landed properties of Alago-Asalu Family. The case of the appellant, on the other hand on his pleading is that he claims the land in dispute through a sale and conveyance by Chief O.S. Bada by virtue of a registered power of attorney allegedly issued to him by Aboki Bada Family. The learned trial Judge, for reasons which cannot be faulted, rejected the appellant’s case on the ground that Chief Bada’s power of attorney could not, and did not, cover the land in dispute. On that conclusion the appellant is completely out of the race for competing titles, his case having completely broken down.

What then is the effect of this finding The answer lies in the statement of principle by Diplock L. J. in Ocean Estates Ltd. v. Norman Pinder (1969) 2 A.C. 19, at pp. 24-25 where he said:-

“At common law……….there is no such concept as an “absolute title.” Where questions of title to land arise in litigation the court is concerned only with the relative strengths of title proved by the rival claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land.”

This principle has been cited and adopted in several decisions of this court. I may here refer to the case of Anukanti v. Ekwonyeso (1978) 1 L.R.N. 346, at p. 351; Madam I. Arase v. Peter U. Arase (1981) 5 S.C. 33, at p. 35. The effect of the finding that the power of attorney with which Chief O.S. Bada purported to have sold the land in dispute to the appellant could not validly be used to sell the land is to completely defeat the title of the appellant. That made him a complete stranger to the land in dispute. On the other hand, the respondent’s predecessor-in-title Johnson was, on accepted evidence, in possession of the land before the Supreme Court 1958 decision of the 1951 suit and after, at least till 1969. The explanation that he continued to be in possession after that decision because he had to purchase the land afresh from the new and rightful owners appears reasonable enough.

It has been suggested that the learned trial Judge was right in insisting that evidence of an expert was necessary to connect the land in dispute with the land partitioned to Alhaja Suwebatu Falohun with Exh. A because he used the same measure to find that the appellant’s power of attorney, Exh. F., does not relate to the land in dispute. It is necessary to treat both parties equally, it has been suggested. That suggestion has, in my view, not considered a number of facts. I must point out, however, that no expert evidence was relied upon or considered by the learned Judge in coming to the conclusion that the power of attorney did not apply to the land in dispute. He used only forensic logic and related the power of attorney, Exh. F., to the partition document, Exh. D.

Secondly: In paragraphs 8, 9, and 10 of the statement of defence of the rrespondent, he averred as follows:-

“8. The 1st defendant in answer to paragraph 10 of the plaintiff’s statement of claim avers that it was Mr. S.A. Alaka a licensed surveyor who was instructed by the members of the Aboki Bada Family to partition a large area of land including the land in dispute that alloted some area of land to Alhaja Suwebatu Falohun, a member of the Aboki Bada Family.

9. That the large area of land at Obele Odan, Surulere, including the land in dispute is the family property of Alago Asalu Family, of which the Aboki Bada Family is a branch, and there was no deed of partition executed by the family in favour of any member of the family.
10. That there was no family meeting or resolution of the Aboki Bada Family allocating any area of land to Alhaja Suwebatu Falohun.

Thus paragraph 8 admits partition and allotment of a parcel of land in the family property to Alhaja Falohun. Paragraphs 9 and 10 simply complain of absence of a deed of partition and that there was no family resolution before the allocation to Alhaja Falohun. On production and admission of Exh. F. signed and assented to by Chief O.S. Bada himself the contention in paragraphs 9 and 10 of the statement of defence fall to the ground. Paragraph 1 of the statement of claim pleaded as follows:

“They further aver that the land in dispute in this case formed portion of the land so partitioned and which fell to the lot of one Alhaja Suwebatu Falohun, a member of the Alago Asalu Family.”

This was barely denied in paragraph 3 of the statement of defence. In my opinion, if it was 1st respondent’s case on the face of these pleadings that the land in dispute was not part of the land allocated to Alhaja Falohun it was such an important fact that it should have been pleaded expressly. But it was not. See Lewis & Peat (N.R.I) Ltd. v. Akhimien (1976) 7 S.C. 157. Looking at the whole statement of defence filed and construing it as a whole it is clear that it was never suggested that Exh. F. relates to land other than the land in dispute. My first reaction to the pleadings, therefore, is that that issue never arose from the pleadings. The limited issue raised was proved by the production and admission of Exh. F. Thirdly, assuming but not agreeing that it arose, the respondent caned sufficient evidence to sustain the conclusion implicit in the decision of the Court of Appeal that she proved the fact. It is noteworthy that at the evidence on the point went one way because there is no iota of evidence from the defence even suggesting that the subject of the grant in Exhibit A was outside the area allocated to Alhaja Falohun as a result of the partition: it was not even suggested in cross-examination. It is, of course settled that in such a case tire onus of proof would be satisfied on a minimal of proof because there is nothing on the other side of the scale. In the case of Nwabuoku v. Ottih (1961) All N.L.R. 487 the Federal Supreme Court, per Ademola, C.J .F. stated the principle thus:

“It is clear from his judgment that the learned trial Judge gave no consideration whatsoever to the appellants evidence before him; his evidence was not at any time rebutted by the defendant who did not go in the witness box to give evidence. The evidence of the appellant therefore stands uncontradicted. His evidence giving the terms of the transaction between him and the respondent was in terms of the writ. In the absence of any evidence of rebuttal the appellant was entitled to judgment, and I am of the view that the learned Judge’s duty was to have entered judgment in his Favour…..

In the instant case, although the 1st and 2nd respondents gave evidence they did not contradict the evidence called by the respondent which I shall proceed to point out anon. Nor did they even cross examine upon or challenge the evidence. It is instructive to note that even in cases requiring strict proof such as proof of special damages, the above principle has been applied. See, for examples:

E.K. Odulaja v. A.F. Haddad (1973) 11 S.C. 357, at p. 364-5.

Adel Boshali v. Allied Commercial Exporters Ltd. (1961) All N.L.R. 917, P.C.

Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 S.C. 79, at pp. 81-82.

This principle is applied because proof of issues in a civil case is on a balance of probabilities: A.R. Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91, pp. 94-96. So where there is nothing to put on the one side of the imaginary scale, minimum evidence on the other satisfies the requirement of proof. In the instant case, the respondent herself testified as follows:

“As a result of this case the land in dispute became portion of Alago-Asalu Family. The Alago Asalu Family subsequently partitioned their land between their different members of the family. The land in dispute thus fell to the ownership of Alhaja Suwebatu Falohun.”

She testified as to sale to Johnson by Alhaja Falohun and execution of the deed of conveyance, Exh. A., before the Magistrate. According to her, the 1st appellant occupies only an area measuring, 12 feet by 15feet in the land in dispute, the 2nd appellant an area of 10 feet by 10 feet. She produced and tendered the deed of partition as Exhibit F, and the conveyance as Exh. A. 1st respondent went on the land as a tenant of Johnson in 1958. There are other tenants on the land. There was not a single question under cross-examination to suggest that the land in dispute was outside the 9 acres partitioned to Alhaja Falohun. She called P.W.2, Alhaja Adijatu Bada, the daughter of Alhaja Falohun who supported the evidence of the plaintiff on the origin and partition of the land and that it belonged to her mother after the partition. Again there was no cross-examination on these important issues.

The evidence of the 1st appellant and his only witness was directed towards proving the authority of Chief Bada to sell and his purchase of the property in dispute from him. There was no scintilla of evidence from him, his witness or 2nd appellant to suggest that the land in dispute was outside the nine acres partitioned to Alhaja Falohun as evidenced by Exh. F.

The defendant under cross-examination made one startling admission which to my mind very much strengthens respondent’s case. Under cross examination he admitted, “I agree that there are about six tenants in Johnson’s house paying rents to the plaintiff.”

With this important admission, how can it lie in his mouth to even suggest that plaintiff is not in control by reason of her title through Johnson or that anybody is disputing that what Johnson gave to the plaintiff was conceded by the rest of Bada Family as part of Alhaja Falohun’s share The lack of proof which was based on her failure to call an expert witness to connect Exh. A to C the land partitioned in Exh. F. was raised for the first time in counsel’s address.

In my judgment, an issue of fact cannot rightly be raised in counsel; final address. In a trial court where pleadings are filed, it can only be properly raised on the pleadings. The mistake of the learned trial Judge was that he allowed the non-issue of the identity of the land in dispute and its connection with the land partitioned to Alhaja Falohun to becloud the main issue. That issue was whether the land in dispute was rightly purchased by the respondent through Johnson and Alhaja Falohun to Alago-Asalu Family, or by the appellant at a public auction through Chief Bada to the same family under authority of the power of attorney, Exh. F. Both parties were in no doubt about the identity of the land in dispute and raised no issue on their pleadings which justified the learned trial Judge’s insistence on expert evidence.

With respects, the learned trial Judge ought therefore not to have entertained it at all on the ground that it was not an issue in the case. The game of litigation has long ceased to be a sneaky game. The rule of fair hearing dictates that in a civil case a party must give his adversary due notice of the case he is to meet by raising it on his pleading. Be that as it may, even if it arose, the learned Judge should have, for the reasons I have given, held that the fact was duly proved on a balance of probabilities. The Court of Appeal was therefore right to have so held.

It is left for me to comment briefly on the reliance of the Court of Appeal on the case of Ogunbambi v. Abowab (1951) 13 W.A.C.A. 222 which has been the focus of attack by learned counsel for the appellant. As I said, Ademola, J.C.A., after stating that the respondent was entitled to a declaration of title cited the case. He did not elaborate. Learned Counsel has submitted that since, on the findings, appellant was in possession and the respondent was not, the court below was in error to have invoked the principles in that decision. He submitted that the Court of Appeal’s declaration of title in favour of the appellant departs from two fundamental propositions of law, namely:

(i) That a plaintiffs claim to a declaration of title must stand or fall on the strength of his own case and not on the weakness of the defendant’s case; and

(ii) That a person in possession of land has a right to remain in possession against everybody except one with a better title.

He further submitted that it is only when the claim is one for trespass, and if the plaintiff’s predecessor-in-title was in possession and in addition the plaintiff has been in possession since the purchase of the land in dispute, that the onus is on the defendant and not on the plaintiff to prove a better title.

In my opinion, the above two propositions of law now admit of some important qualifications. The acronym that a plaintiff must, in a claim for a declaration of title, rely on the strength of his own case and not on the weakness of the defence now admits of a number, of recognized exceptions. It has no place where there are facts and factors in the defendant’s case which support the plaintiffs: See Akinola & Anor. v. Oluwo (1962) 1 All N.L.R. 224, p.225; Akunwata Nwagbogu v. Chief M. O. Ibeziako (1972) Vol. 2 E.C.S.L.R. (Part 1) 335, at p. 338. Also in quite a number of cases, the onus of proof is on the defendant. An example is where the defendant in his pleading admits that the plaintiff was the original owner: the onus is on the defendant to prove an absolute grant to him: See Ochonma v. Unos; (1965) N.M.L.R.321.

Before I can effectively decide whether any of these two exceptions is material in this case it is necessary to ask the question: What is “possession” in the con in which the word is used in these cases One point I must make is that “possession” is a word of wide and sometimes vague and ambiguous import. It may mean effective, physical, or manual control or occupation of land – de facto possession – as well as possession animus possessendi together with that amount of occupation or control of the land which is sufficient to exclude other persons from interfering – the de jure possesion. It follows from this that although legal possession is ordinarily associated with de facto possession but is not limited to it, legal possession may exist without de facto possession and the latter may not always amount to possession in law. Legal possession includes constructive possession: For these see Vol. 29 Hals. Laws of Eng. (3rd Edn.) 363 et seq. A person who is in possession of land includes a user of it and one who is in physical control thereof as well as one who is in receipt of rents and profits from tenants installed thereat by him. In the instant case the 1st appellant made a far reaching admission as to the respondent’s possession when he answered under cross-examination, if I may repeat:

“I agree that there are about six tenants in Johnson’s house paying rents to the plaintiff.”

This means that the respondent is in possession of land which forms the same parcel with the land in dispute through those six rent-paying tenants of his. And on the pleading and evidence it is Obele Kolade, later called 20 Ekundayo Street and, since 1960, called 20 Oseni Street that was referred to as Johnson’s House. As there are about eight persons living on the premises and six of them are on 1st appellant’s admission tenants of the respondent, the learned trial Judge ought to have on a proper direction found that this fact alone raises a probability that what is true of the other six must be true of the 1st appellant. See on this: section 45 of the Evidence Act. See also Okechukwu v. Okafor (1961) 1 All N.L.R. 685; also D.O. Idundun & Ors. v. Daniel Okumagba& Ors. (1976) 9-10 S.C. 227, at p. 249. Although that situation raises only a probability and not a presumption of ownership (for which, see Archibong v. Ita (1954) 14 W.A.C.A. 520, the 1st appellant having failed in his bid to prove a sale to him by Chief Bada under authority of the power of attorney, Exh. F., there is no other evidence on record to till the balance in his favour.

As for the 1st appellant’s possession of a small area measuring 12 feet by 15 feet in No. 20 Oseni Street, accepted evidence is that he first came upon the land as a tenant of Johnson in 1958 when he was permitted by Johnson to erect a small hut on the land for giving Arabic lessons to pupils; but that Johnson later bought the whole land and on 29th November, 1969, bought the land from Alhaja Falohun. But he and Alhaja Falohun joined in executing the conveyance, Exh. A. to the respondent on 22nd December, 1969. As the learned Judge, on a proper direction as I have shown, would have found that the respondent had traced her title to Bada Family through Alhaja Falohun and Johnson, the onus shifted to the appellants to show the nature of their possession. See Thomas v. Holder (1946) 12 W.A.C.A. 78. It is now well settled that in a case of competing claims for title, except in cases in which the issue is which side has succeeded in proving numerous and positive acts of ownership spreading over a sufficiently long time to warrant an inference of ownership under the principle in Ekpo v. Ita 11 N.L.R. 68, which is not the issue here, possession, no matter for how long cannot ripen into title, or, apart from equity, defeat the title of a person whose title of ownership has been admitted or established. See on this – O. K. O. Mogaji & Ors. v. Cadbury Nigeria Limited & Ors. (1985) 7 S. C. 59, at p. 159. Mosalewa Thomas v. Preston Holder (1946) 12 W.A.C.A. 78 at p.80. Da Costa v. Ikomi (1968) 1 All N.L.R. 394, at pp. 398-399. In any case the learned Judge found as a fact that the respondent has been in possession through Johnson, his predecessor in title since 1940, whereas the 1st appellant first acquired his purported title in 1969.

The learned trial Judge also doubted whether Johnson who acquired absolute interest under native law and custom could execute Exh. A; transferring a fee simple. But since the decision of this Court in Kabiawu v. Lawal (1965) 1 All N.L.R. 329, it is now beyond question that a person such as Alhaja Falohun, who acquired an absolute interest under native law and custom, could convey it to a purchaser and rightly joined with Johnson to convey it to the respondent describing it as fee simple. See on these Oguntokun v. Amodu Rufai (1945) 11 W.A.C.A. 55; Balogun, ete. v. Oshodi (1931) 10 N.L.R. 36; Oshodi v. Balogun & Ors. (1936) 4 W.A.C.A. 1, p. 2; P. C. and Griffin v. Talabi (1948) 12 W.A.C.A. 371.

This appeal fails and is hereby dismissed.

I assess and award costs in favour of the respondent in the sum of N500.00.

ESO, J.S.C. I have had the privilege of a preview of the judgment which has just been read by my learned brother, Nnaemeka-Agu. J.S.C., I agree with his reasoning and I hold the view that the appeal be dismissed. I abide by the order made by my learned brother, Nnaemeka-Agu, J.S.C.

UWAIS, J.S.C: I have had the opportunity of reading in draft the judgment read by my learned brother, Nnaemeka-Agu, J.S.C. I entirely agree with his reasons and conclusion.

It is clear that the learned trial Judge would have given judgment for the plaintiff (now respondent) but for the doubt which he entertained on the identity of the land in dispute. For the learned trial Judge observed in his judgment as follows-

“…. the plaintiff who seeks a declaration of the title either in fee simple absolute or under native law and custom has the onus of proving that he (sic) is entitled to the declaration in respect of the specific land rested upon him (sic) and this burden he (sic) must discharge to the satisfaction of the court. There is no doubt as between the parties that the land in dispute upon which the plaintiff’s predecessor – Joseph Oluseye Johnson had been exercising rights of ownership and possession by building thereon and leasing portions of it to the first and second defendants respectively is that piece of land known as No. 20 Oseni Street, Obele Kolade, Surulere. There is no dispute too that this piece of land had been in peaceful and undisturbed possession of the plaintiff through his (sic) predecessor in title since 1940 until the purported sale to the first defendant in 1969. But in order for the plaintiff to succeed on the declaration sought by virtue of the sale of land to her by Alhaja Falohun, she must prove to the court by credible evidence that the said piece of land comprising 20 Oseni Street as shown on the plan attached to exhibit “A” falls within the portion of land allotted to the said Alhaja Falohun in area marked “G” in exhibit “D” the plan of the partition by calling on expert witness who possesses the necessary training and qualification to relate the plan on exhibit “A” to the partition plan attached to exhibit “D” and also the plan in exhibit “G.” In the absence of such expert evidence, I am afraid {he court would not be in a position to grant the declaration sought as the identity of the land in exhibit “A” would not have been sufficiently ascertained.” (Italics mine).

Now on the pleadings there is no doubt whatsoever about the identify of the land. The parties knew exactly what piece of land was in dispute. The plaintiff attached a plan to her Statement of Claim and described in the Statement of Claim the land in dispute as the piece of land which was in possession of Joseph Oluseye Johnson since 1940. Paragraphs 1, 6 and 7 of the Statement of Claim read thus-

“1. The land the subject matter of this action is all that piece or parcel of land shown and edged in red in Plan SEW/W/1231, a countersigned copy of which is attached hereto and filed herewith.”

6. The plaintiff avers that at the said time the area surrounding the land in dispute was covered with bush, that the area was known as Obele Kolade (Kolade Village) and that up to 1945 there were only 5 houses in the whole village.
7. The plaintiff avers that between the years 1950 to 1958 more people started to arrive in the area and the house on the land in dispute which had previously been known as No.5 Obele Kolade Village became re-numbered as 20, Ekundayo Street, and in early 1960, Ekundayo Street was renamed Oseni Street by the Ikeja Town Planning Authority.”

Although the 1st defendant (now appellant) averred in paragraph 2 of his Statement of defence that he was “not in a position to admit or deny” the plaintiffs averment in paragraphs 2 to 9 of the Statement of Claim, he pleaded as follows in paragraphs 1, 8 and 9 of the statement of defence –

“1. The 1st defendant admits paragraph 1 of the plaintiffs; Statement of Claim.”

8. The 1st defendant in answer to paragraph 10 of the plaintiffs; statement of claim avers that it was Mr. S.A. Alake a licensed surveyor who was instructed by the members of the Aboki Bada Family to partition a large area of land including the land in dispute that alloted some area of land to Alhaja Suwebatu Falohun, a member of Aboki Bada Family.
9. That the large area of land at Obele Odan, Surulere, including the land in dispute, is the family property of Alago Asalu Family, of which Aboki Bada Family is a branch, and there was no deed of partition executed by the family in favour of any member of the family.” (ltalics mine).

It can be seen from the foregoing that the 1st defendant (appellant) did, in fact, know and admitted the identity of the land in dispute. So that its identity was not an issue on the pleadings at the trial. Once it was not an issue to be determined by the trial court, it was not necessary or obligatory for the plaintiff to adduce any evidence in order to prove the identity of the land in dispute.

It is well settled that in a claim for declaration of title it will be wrong of a trial court to grant the declaration if there is any doubt as to the identity of the land in dispute – Baruwa v. Ogunshola, 4 W.A.C.A. 159.It is also true that where the description of the land in dispute by the plaintiff is so clear that it leaves the defendant and the trial court in no doubt as to the exact area of the land claimed, so that a surveyor can, from the description by the plaintiff, draw an accurate plan showing the land in dispute, then the onus to prove the area of the land in dispute is discharged by the plaintiff – See Kwadzo v. Adjei, 10 WACA 274 and Ezeudu & Ors. v. Obiagwu, (1986) 2 N.W.L.R. (Pt.21) 208 at p. 219 per Oputa, J.S.C.

It is pertinent to point out that the plaintiff tendered exhibit” A” in her testimony in order to prove the conveyance of the land in dispute to Joseph Oluseye Johnson by A1haja Suwebatu Falohun. In that regard, the plaintiff’s testimony under cross-examination was –

“It is true that none of the members of the Aboki Bada Family witnessed exhibit “A” this is because Alhaja Suwebatu Ejide Falohun was the sole owner of the land in dispute. I know that Joseph Oluseye Johnson was not the original owner of the land in dispute. The sole owner was Alhaja Suwebatu Falohun. Exhibit “A” is Joseph Oluseye Johnson’s. Deed of Conveyance of the land in dispute.”

Exhibit “D” which was put in evidence by the plaintiff was tendered by Alhaja Adijatu Bada, the daughter of Alhaja Suwebatu Falohun, who was a witness for the plaintiff. The relevant testimony of the witness reads-

“I know Chief S. O. Bada, he was my mother’s elder brother. The late Chief Bada receipted the partitioning of the family land. Chief O.S. Bada is also dead. In his life time he neither denied us of the ownership of our mother’s portion nor sell out of it. There is a document concerning the partitioning which was given to my mother by late Chief O.S. Bada. This is the document tendered no objection admitted and marked exhibit “D”

Nowhere in the testimonies of the plaintiff or her witness – Alhaja Adijatu Bada was attention drawn to any particular part of exhibit “A” or Exhibit “D.” Not even under cross-examination. But when counsel for the 1st defendant came to address the trial court at the close of the defence case, he submitted that there was difficulty in identifying the land in dispute and that before the declaration of title sought could be granted there must be a clear identification of the land in dispute. The counsel went on to submit further as follows-

“On question of partition no sufficient evidence has been placed before the court that there was a partition and that the land in dispute forms part of the land allotted to Suwebatu Falohun the predecessor in title of the plaintiff. The evidence of partition was not substantiated. Before the plaintiff could succeed, she must prove (1) that there was a partition and (2) that the land in dispute forms part of the portion allotted to Suwebatu Falohun who conveyed to her. Even if the court believes that exhibit “D” is in existence it is the duty of the plaintiff to call a witness to show that the survey plan attached to exhibit “A” falls within the area given to Suwebatu Falohun the predecessor of the plaintiff. This, the plaintiff has failed to do. The evidence of a surveyor in this respect would have shown the relationship. The failure of the plaintiff to call this evidence is fatal to her claim. “(Italics mine).

As can be observed it is these submissions by the counsel for the 1st defendant at the trial that the learned trial Judge swallowed hook line and sinker to conclude that the identity of the land in dispute was not proved. No reference was made to the admission on the pleadings of the 1st defendant that the land in dispute was as shown in the plaintiff’s plan attached to the Statement of Claim or the address of the land in dispute which was given in the Statement of Claim as well as in the testimonies of the plaintiff and her witness as No. 20, Oseni Street, Lawanson, Surulere.

I am his statement of defence, of the identity of the land in dispute there was sufficient description in the testimony of the plaintiff and that of her witness from which a plan of the land in dispute can be accurately produced by a surveyor. The finding of the learned trial Judge that the land in dispute was not sufficiently identified by the plaintiff was therefore wrong. As shown on the pleadings, the identity of the land in dispute was not in issue.

The point was raised by counsel of the 1st defendant in the course of his address in the High Court. As there was no issue joined on the point, as shown by the pleadings and the line of cross-examination of the plaintiff and her witnesses adopted by counsel on behalf of the 1st defendant, it was not open to the learned trial Judge to dwell on the issue as he did in his judgment to dismiss the plaintiff’s case on the ground that the identity of the land in dispute was not proved. As a result the Court of Appeal was right in setting aside the decision of the trial court.

For these and the fuller reasons contained in the judgment of my learned brother, Nnaemeka-Agu, J.S.C. I too would dismiss the appeal and affirm the decision of the Court of Appeal, with N500.00 costs to the respondent.

Other Citation: (1988) LCN/2401(SC)