Wahabi Maberi V. Chief Oyeniyi Alade (The Iba Iya Oje) & Ors. (1987) LLJR-SC

Wahabi Maberi V. Chief Oyeniyi Alade (The Iba Iya Oje) & Ors. (1987)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C

This appeal by the defendants raises only one issue, namely, whether the Court below is correct in upholding the decision of the trial Judge in favour of the plaintiffs for declaration of title to a piece of land at Iba Iya Oje in Ogbomoso District of Oyo State the boundaries of which were orally described by the plaintiff,the defendant and witnesses.

The trial Judge earlier in his judgment held the view that the survey plan pleaded and tendered in evidence was unreliable but relying on the case of Garuba v. Akacha (1966) N.M.L.R. 62 held that “a plan is not an absolute necessity in every land case and as in this case, particularly, where both parties and the Court know precisely what piece of land is in dispute………” The trial Judge then ordered as follows:-

“1. Declaration of title to all that piece or parcel of land situate, Lying and being at Iba Iya Oje family land at Iya Oje. Ogbomosho District, and more particularly described by the 1st plaintiff in his evidence in Court as follows:-

“On one side is Ghehughehu stream. On another side is Alese family land at Ogbegun stream. On another side is my own Iya Oje family land. On another side is Parakoyi family land. On another side is the old foot path demarcating our boundary.”

The defendants appealed to the Court of Appeal on seven (7) grounds and with leave of the Court, 9 additional grounds were filed. Two of the grounds (i.e. 3 and 8) were disallowed and struck out. After hearing counsel for both parties, the Court below dismissed all the grounds. The only contention in this appeal is whether the trial Judge was right in making the orders when the declaration for title and injunction were not tied to the pleaded survey plan but on oral description of the land by the parties It was contended by the appellant that in the circumstance the boundaries of the land were uncertain and the claims ought to have been dismissed.

In the lead judgment of the Court below read by Dosunmu, J.C.A., after considering a number of cases cited before the Court, stated:-

Counsel to the appellant cited the case of Epi & Anor v. Aigbedion (1973) N.M.L.R.31 for the effect on a plaintiffs claim for declaration of title where he failed to prove boundaries of the land subject matter of the claim. The case does not decide that where a plan was found unreliable, other pieces of evidence of the boundaries cannot be used for the purpose of identifying the land as it happened in the present appeal.

“In Alhaji Etiko v. Aroyewum supra the Supreme Court said at page 130:-

“Thus, even if as alleged in Ground 2, the trial Judge’s use of the plan attached to the Statement of Claim was wrong (as to which I am by no means satisfied) there was ample other evidence identifying the land claimed with what the respondent bought.

There being no difficulty in identifying the land in dispute it was open to the Court below to grant the declaration sought without basing the declaration on a plan.”

“This is precisely what happened here. The declaration was not based on Exhibit A as there was other ample evidence identifying the land claimed.

“In their Statement of Claim the plaintiffs expressly pleaded the boundaries of the land in paragraph 8, and the 1st plaintiff gave copious evidence in relation to them thus:-

“The boundaries of the land are as follows:- On one side is Gbehugbehu Stream. On another side is Alasa Family land at Ogbegun Stream. On another side is my own family land – Iya Oje. On the fourth side is Parakoyi family land. On this fourth side is an old foot path demarcating our boundary. The land in dispute is part of an entire area of land belonging to my family. The boundaries of our entire family land are as follows:- On the first side is Aresa family land at Opo Aya Stream. On the other side is Oluwofin family land at Molagi Stream. On another side is Oniyegun and Alaago families’ lands. On another side is the Parakoyi family land.”

The authorities are clear that a survey plan is not an absolute necessity where from the description of the land as given in evidence a Surveyor will be able to produce an accurate plan of the land. (See Kwadzo v. Uga & Ors. (1962) 1 A.L.N.R. 482, 484).

Before this Court the defendant, as appellant, has raised the same and only issue in his brief:-

“Whether from the oral evidence of the first plaintiff quoted (in the judgment of the learned trial Judge) it can be said that the boundaries of the land in dispute had been proved with certainty as to support the reliefs granted in favour of the respondents.”

The argument in support of the appeal is short and direct. Chief Afe Babalola in his brief and oral submission in Court illustrated his argument by stating the general principle that it is the duty of a plaintiff in a claim for declaration of title to land, trespass and injunction first to establish the boundaries of the land in dispute. He cited a number of well known cases in support of the principle of the need for a plaintiff claiming declaration of title to land to prove the area of land claimed with certainty. Among them are the following cases:-

Coker v. Sanyaolu (1976) 10 S.C. 203: Dupe Akinyade v. John Fadojutimi (1975) 5 W.S.C.A. 253, 259; Epi v. Aigbedon (1972) 10 S.C.53 and Baruwa v. Ogunsola 4 W.A.C.A.159.

He submitted that the oral description of the boundaries of the land in dispute falls far short of establishing the boundaries of the disputed land with certainty. He drew five different diagrams in his brief illustrating how plaintiff’s oral evidence is capable of being construed. He submitted that the Iya Oje family (Plaintiffs) land is encompassed by four boundaries and that the land in dispute is only a small fraction of the entire land.

The first diagram shows that the Plaintiffs’ family land with five boundary men, starting from the north in the following order:-

Aresa, Parakoyi, Olumofin, Oniyegun and Alaago families in a clockwise direction. The second diagram divides the plaintiffs’ family land into two, indicating the land in dispute as half on the left. The third diagram indicates an area between the boundaries of Parakoyi and Oniyegun Alaago families on the South West part of their land. The fourth indicates an area on the east with one boundary touching Oluwofin and finally the fifth, showing a portion right within the entire land and not touching any of the plaintiffs’ boundaries. He then submitted that from the oral evidence it cannot be said that plaintiffs established with certainty the boundaries of the land in dispute, and the action should therefore have been dismissed.

In reply, learned counsel for the Respondents in his brief and oral submission referred to the judgment of the Court below where the Court held that there was ample evidence other than the survey plan identifying the land claimed by the plaintiffs. He drew attention to the fact that in the Court below, the appellants’ complaint was not lacking of sufficient oral evidence to identify the land with certainty. The complaint in the instant appeal is different and a shift from that ground. The Court should follow its general practice not to allow a new point of law or fact which was not raised at the trial or in the Court below. And in support, Counsel cited Ejiofodomi v. Okonkwo (1982) 11 S.C. 74 at 93-98; Dueye & Ors. v. lyomahan & Ors. (1983) 8 S.C. 76, 83 and S.C.88/1983: Onotaire & Ors. v. Onokpasa & Anor, delivered on 7th December, 1984. Learned Counsel further submitted that there are concurrent findings of two Courts to the effect that the identity of the land in dispute was clearly established and therefore urged the Court not to disturb that finding. He pointed to the fact that all the parties and witnesses have no doubt about the identity of the land.

It is trite law that a plaintiff seeking declaration of title to any piece of land or an order of injunction must establish with certainty the boundaries of the land over which the declaration or order is sought. See Wilfred Okpaloka & Ors. v. Ben Umeh (1976) 10 S.C. 2, 269, 293. See also Ajide Arebe v. Ogunbiyi Asaulu (1980) 6 S.C. 78, 88. The purpose is to enable the parties and any other persons claiming through them to know precisely the area of land to which the judgment or order relates for the purpose of enforcement of the decision of the Court. It is also important to know the precise boundaries of the land for the purpose of obviating possibility of future litigation of that particular area of land as between the same parties and their privies. Certainty of the identity is therefore necessary for the mutual benefit of both the plaintiff and the defendant. In order to answer the question posed in this appeal, it is necessary to examine the pleadings, evidence and judgment of the trial Court. The amended Statement of Claim gave a description of the entire area claimed as their family land in paragraph 8 as follows:-

“It has boundary with Aresa at a stream called Opo Aya. It has a common boundary with Oluwofin which is the stream called Malaga. It has a common boundary with Parakoyi.

It has a common boundary with Oniyelu and a common boundary with Alaako.”

The land in dispute forms a small part of the vast area of land (in paragraph 9) which boundaries are described in paragraph 31 of the amended Statement of Claim as follows:-

“On the first side Aresa Adu family land.

“On the second side by Iba Iya Oje family land

“On the third side Ora river

“On the fourth side by Paku family land.”

And in paragraph 33 (of the amended Statement of Claim) it was pleaded that:-

“In 1951 Ogungbayi (i.e. defendants) family sued Alasa family in respect of the same Alasa family land that forms boundary with plaintiffs’ family land and lost in Suit 13/52.”

Paragraphs 6 and 7 of the amended Statement of Defence, averred

“6. With regard to paragraphs 33, 34 and 35 of the amended Statement of Claim the defendant avers that the land in dispute then is not the one and the same land – in dispute in this case.”

“7. The Defendant will contend at the trial as follows:-

(a) That all the area edged ‘RED’ in the survey plan No. OB 1159 drawn by Mr. O. Bamgbose Licensed Surveyor was granted absolutely to Ogungbayi the father of Maberi the ancestor of the Defendant by one Aresa Olu Olukankun, the original owner, several years ago.”

(e) That the land granted to Ogungbayi by Aresadu Olakanku many years ago is bounded by Gbehugbehu stream, which forms a common boundary between the plaintiffs family land and the defendant’s family land, on one side and Paku family land (which is described by the plaintiffs as Alasa family land) in their survey plan) on the other side.”

The plan No. OB. 1159 was pleaded in paragraph 4 of the amended Statement of Claim showing the entire area claimed by the plaintiffs edged ‘RED’. Although strictly on the pleadings, the defendants were claiming the entire of land verged ‘Red’ in Plan No. OB. 1159 prepared by Bamgbose, the identity of the area in dispute is that between the Gbehugbehu stream and Alasa family land (otherwise called Paku family land). There is no dispute as to what was the boundary between Alasa family and the Gbehugbehu stream. Both parties and the trial Court therefore had no doubt as to the boundaries of the area of land which was in dispute. The trial Judge in his judgment said:-

“The Defendant agreed with the boundaries of the land described in Exhibit A except that he claimed Paku family should be where Alasa family is. In the main he claimed that Gbehugbehu stream was the boundary between him and the plaintiffs. His family land is on one side of Gbehugbehu stream and the plaintiffs family land is on the other side of Gbehugbehu stream. He testified that the Plaintiffs own land on both sides of Gbehugbehu stream is not correct.”

Later in the judgment the trial Judge said:-

“The 1st Plaintiff has described the land in dispute on oath in Court. The Defendant himself has not disputed the oral description as given by the 1st plaintiff. What the defendant disputes, and this is the substance of this case, is that the land of the plaintiffs’ family is on both sides of Gbehugbehu stream. The Defendants assertion was that the Plaintiffs’ family land was on one side of Gbehugbehu stream. Whilst his own family land was on the other side of Gbehugbehu stream. It is my view therefore that both parties to this action and the Court know precisely what piece of land is in dispute. Further consideration of this case can proceed without Exhibit A……………….

The Court below rightly took the view that a survey plan is not absolute necessary, where from the description of the land as given in evidence, a surveyor will be able to produce an accurate plan of the land. (See Kwadzo v. Adjei (1944) 10 W.A.C.A. 274, Ezeokeke & Ors. v. Uga & Ors. (1962) 1 All N.L.R. 482,484. It must be observed that the trial Judge did not completely ignore the survey plan in his judgment. He said:-

“According to the statement of defence and the evidence led in court……the defendant agreed with the boundaries of the land as described in Exhibit ‘A’ except that he claimed Paku family should be where Alasa family is. In the main,he claimed that Gbehugbehu stream was the boundary between him and the plaintiffs. His family land is on one side of Gbehugbehu and the plaintiffs family land is on the other side of Gbehugbehu stream.”

The amended statement of defence in paragraph 7(e) gives further assistance in pinpointing the boundary of the land on the other side of Gbehugbehu stream which defendants family was claiming against the plaintiff. It reads:-

“(c) That the land granted to Ogungbayi by Aresadu Olakanku many years ago is bounded by Gbehugbehu stream, which forms a common boundary between the plaintiffs family land and the Defendant’s family land, on one side and Paku family land (which is described by the plaintiffs as Alasa family land in their survey plan) on the other side.”

Paragraph 33 of the amended statement of claim clearly states that in 1951, the Ogungbayi family claimed a piece of land which forms the boundary between plaintiffs family and the Alasa family. All the witnesses called by the plaintiffs and the defendants say they know the land in dispute, there cannot be any doubt that the decision of the Court below cannot be faulted when it held that the area of land in dispute is clearly ascertainable.

Chief Babalola in his oral submission said that the boundaries as found by the trial Court and the Court below are not consistent with paragraph 8 of the amended statement of claim and that there was no agreement between the parties as to the area of the land in dispute. I am unable to agree. Paragraph 8 of the amended statement of claim describes the boundaries of the entire area of land claimed by the plaintiffs’ family, the defendants in paragraph 7(a) of their amended statement of defence did not dispute the accuracy of the plan but contended that:-

“(a) that all the area edged ‘Red’ in the survey plan No. OB.1159 drawn by Mr. O. Bamgbose Licensed Surveyor was granted absolutely to Ogungbayi the father of Maberi the ancestor of the Defendant by one Aresa Olu Olukanku, the original owner, several years ago.”

Paragraph 4 of the amended statement of claim pleaded the plan No. OB.1159 and the land verged ‘Red’ thereon, the accuracy of the plan was not denied by the defendants in their amended statement of defence. In fact they adopted the plan as the land which was granted to their ancestor, Ogungbayi.

I have made the above comments to show that there was in fact no dispute about the boundaries of the land both parties were talking about. The trial Court said so. It is not for Counsel to raise hypothetical or imaginary doubts or arguments on the certainty of the area of land, when in fact, no such doubt exist.

The point in this appeal is similar to that in James Uluba & Co. v. Chief E. E. Sillo & Co. (1973) 1 S.C. 37, where it was submitted that a claim for an injunction should not have been granted in the absence of a plan showing precisely the area in question. In reply it was contended that the land in dispute was identifiable and was indeed identified by the trial Judge, both parties were never in doubt as to the identity of the land in dispute and the boundaries of the land were as described in the judgment of the trial Court. This Court held that there was merit in the submission holding that there is abundant authority for the views that a plan is not always a necessity, so long as the identity of the land can otherwise be ascertained to the satisfaction of the Court. This Court (as Dosumu, J.C.A. did in his judgment) after referring to the cases of Alhaji Etiko v. Aroyewun (1959) 4 F.S.C. 12 at p.130 and Garba v. Akacha (1966) N.M.L.R. 62 at p.64 said:-

“‘In Ebile etc. v. Onwugbenu (I) a Federal Supreme Court case decided on 21st June 1963, the Court said:

“‘I do not share the view that a plan is an absolute necessity in every land case. It is abundantly clear from the record of proceedings in that case that the parties were agreed on the land in dispute. its features and area. In the case before us we have no doubt that both parties and the trial Court knew precisely what piece of land was in dispute. That is the criterion.”

The appeal therefore fails; the appeal is dismissed and the judgment of the trial Court is further affirmed with N300.00 costs to the respondent.

SC.129/1985