Mr. Augustine Ellah V. Mrs Helen Agom (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment)

This is on appeal against the judgment of Micheal Edem, J, sitting in Ogoja High court in three consolidated suits No. HJ/17/2003; HJ/18/2003 and HJ/20/2003 delivered on the 4th day of February, 2009. The plaintiff claimed against the defendants each in representative capacities amongst others title to the entire land with four bedrooms compound known and called UKO UTOGOR in accordance with the Nkim custom. Judgment was entered for the plaintiff for title, N1,000.00 damages for trespass against the 3rd defendant in suit No HJ/18/2003 which culminated into this present appeal.

Thus, the plaintiff’s (respondent’s) sued in a representative capacity and her case is that their late father in his life time had two compounds No. 9 Ntol Mgbeje Street, Igoli-Ogojo, where he lived with his wives and children and a large expanse of land with a four room house where he collected rents of Ushi-Utamte called “UKO UTOGOR’S COMPOUND”. When the 1st defendant’s husband died, the plaintiff’s late father brought her to come and stay with him of No. 9, Ntol Mgbeje Street Igoh-Ogoja.

The plaintiff’s father later asked the 1st defendant to relocate and live in his compound of Ushi-Utamate, Igoh-Ogoja and occupy two rooms out of the four rooms while the plaintiff’s father continued collecting rents in the other two rooms. On the death of the plaintiff’s father, it was unanimously agreed that the 1st defendant should continue to collect rents for the remaining two rooms for her upkeeps.

In September, 2002 the 1st defendant started putting up a six room concrete building on the land the plaintiff claims to belong to their late father and their inheritance by Nkim custom and law without consent or permission.

Upon enquiry by the plaintiff on the action of the defendant, the 1st defendant claimed that the property in question was hers built for her by one Ugbut Alada and the land given to herby one Akpotu Igbaji.

The appellant case is that a portion of the land in question was leased to him by the 1st defendant Madam Ushuma Utogor on the 20th April, 2001 and that he took possession of the vacant land sold to him by the 1st defendant without any disturbances or any notice of any existing person in possession or sign of someone being in possession. He claimed nothing was destroyed as alleged by the Respondent, except for a few wild palms which grow naturally.

The appellant has framed the following issues for determination:-

1. Whether the learned Judge made a correct approach to the evidence led by the parties by granting a declaration of title to land in favour of the respondent when the identity of the land is unknown. (Grounds 1 & 4).
2. Whether the learned trial Judge properly directed himself as to the burden of proof having regard to the nature of the issues placed before him, in particular, evidence of tradition and acts of possession canvassed by the defendants in their pleadings and evidence. (Grounds 3 & 5).

On the other hand the respondent has adopted the same issues for determination of this appeal.

Thus, the first issue is whether the trial judge made a correct approach to the evidence lead by the parties by granting a declaration of title to the land in favour of the respondent when the identity of the land is unknown.

Here the contention of the appellant is that for the respondent to succeed in a claim of title to land, she must establish with certainty, the identity of the land she claims. That this is done by calling as witnesses those with whom the respondent shares common boundaries as well as witnesses to trace the boundary marks along the boundary of the land in dispute, in addition to tracing her root of title to the said disputed land. Where the respondent fails to do so her action must fail, particularly as there would be no land to which the declared title could relate or be attached to with any degree of certainty.

The appellant has maintained that the respondent had abysmally failed to establish with certainty the identity of the land in dispute. The appellant has reiterated that it is trite law that must first satisfy itself of the certainty of the land in dispute and its boundaries. That, in this case, the respondent could not discharge that burden placed on her.

Thus the respondent who sued asking for declaration of title bore the burden of establishing their title and in that process needed to lead evidence to establish the identity of the land in dispute. The apex court in ODUNZE v. NWOSU (2007) 13 NWLR (pt 1050) 1 at 35 states as follows:

“As no plan of the land in dispute have been tendered by both sides in this case, the obvious way out in this case is to find out whether the plaintiff’s have any oral description of the land in dispute adduced enough material to enable a surveyor readily produce a plan of the said land with its boundaries clearly defined. In this regard if a (sic) may repeat, I have perused the plaintiff’s evidence including their witnesses and the claim filed as pen the record. The burden in this regard is on the respondent’s (plaintiffs). There are no materials to assist a surveyor to produce such a plan; not even from the finding of the trial court of the focus. Strangely enough the trial court could not be shown the Nwite shrine, the fulcrum of the respondents’ (plaintiffs’) case.