Lasisi Aremu V. Alhaji Lawal Adetoro (2007)
LAWGLOBAL HUB Lead Judgment Report
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 Ibadan about two hundred years ago. At the time of the grant by Balogun Oshungbekun, Ofatado and some other districts around there was administered by Ibadan. The appellant’s grandfather was succeeded by his father, Ogunyemi. The appellant and his other members of the family inherited the land. They planted economic crops such as cocoa, kolanuts on the land in dispute until 1985 when the respondent entered the land. The entry resulted in the action filed by the appellant in a representative capacity.
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 Balogun & Ors v. Agboola (1974) 1 All NLR (Pt. 2) 66: Egri v. Uperi (1974) 1 NMLR 22: Bakare v. The State (1987) 1 NWLR (Pt.52) 579, (1987) 3 SCNJ 1 at 5 and Awosanya v. Board of Customs & Exercise (1975) 3 SC 4,. (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, Edo to Timi Ajeju who acquired the land by conquest about 200 years ago. Learned counsel contended that it was the appellant at the Court of Appeal, Alhaji Lawal Adetoro, who traced his root of title to Timi Ajeju and not the plaintiff/respondent in that court. He submitted that the misdirection has occasioned substantial injustice in that it obscured the vision of the learned Justices of the Court of Appeal which led them to set aside the laudable findings of fact by the learned trial Judge wrongly. He urged the court to allow the appeal.
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. Ekhator (1996) 2 NWLR (Pt. 430) 338; NBCI v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617: Ijale v. A.-G., Leventis and Co. Ltd. (1959) SCNLR 255 and Dabup v. Kolo (1993) 9 NWLR (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 Arabe v. 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 G. B. Ollivant Ltd v. Korsah (1941) 7 WACA 188; Oladeinde v. Oduwole (1962) WNLR 41: Udegbe v. Nwokafor (1963) 1 SCNLR 184; (1963) 1 All NLR 417; Mogaji v Odofin (1978) 4 SC 91; Bello v. Eweka (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. Brempong 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. Chidogwu (1994) 7 NWLR (Pt. 354) 78; Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421) 515; Nnadozie v. Omesu (1996) 5 NWLR (Pt. 446) 110 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. Obiagwu (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.
- 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.
- 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.”
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 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 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 footpath 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 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 Ofatedo township. There are features forming boundary between our land and that of Joseph Aremu. We have plantains and pineapples are those crops that are used to demarcate the two farmlands.”
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 plaintiff’s 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 plaintiff’s family land are kolanut trees and cocoa trees as demarcating features. Between Karimu Olawale’s family land and the plaintiff’s family land there are cocoa and kolanut trees forming boundary features. The plaintiff’s 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 plaintiff’s 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 plaintiff’s 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 plaintiff’s 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. Ogbeide (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; Ogwuru v. Co-operative Bank of Eastern Nigeria Ltd. (1994) 8 NWLR (Pt. 365) 685; Tsokwa (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 N10,000,00 costs against the appellant and in favour of the respondent.
UpC.418/2001