Yesufu Ogedengbe & Ors. V. Chief J. B. Balogun & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C

This is an appeal against the decision of the Court of Appeal, Benin Division, (hereinafter called “the court below”), delivered on 23rd ApriI, 2001, dismissing the appeal to it and affirming the judgment of the trial court delivered on 12th June, 1998 in favour of the plaintiffs/ respondents. The appellants have now appealed to this Court on three (3) grounds of appeal which without their particulars, read as follows:

“(i) The court below misdirected itself on the fact when it held that “this apparent contradiction cannot be used to discredit all the other features that define the boundaries of the disputed land. After all, there is still the long stone ground which forms the boundary between Ekpasa and Lampese. If Use Hill use the only crucial landmark …. Then the argument … will stand …

(ii) The court below erred in law when it declined to order a retrial when the trial court failed to evaluate vital evidence of traditional history, possession and boundary men adduced by the defendant on ground that 2nd defendant lied and contradicted himself.

(iii) The court below erred in law when it held that “the trial Judge was perfectly right to have accepted and acted on the evidence adduce by the plaintiffs” without a consideration of the corresponding evidence of the defendants on traditional evidence of ownership and possession of the land in dispute inter-alia. “.

The appellants, have formulated two (2) issues for determination, namely:

“1. Was the court below right to have held that the apparent contradiction in the respondents (then plaintiffs) evidence on the identity of the land in dispute was not fatal to the claims for declaration of title and injunction. (Ground 1).

2. Was the court below right to have refused to order a retrial in view of the failure of the trial court to evaluate vital evidence. (Grounds 2 and 3)” I note that the respondents adopted the above issues.

The issues of the parties, as far as am concerned, have made the determination of this appeal less cumbersome for me. This is because I note firstly, that the defendants/appellants joined issues on the identity and features of the land in dispute. Secondly, the court below refused to order a retrial because of an alleged failure of the trial court to evaluate vital evidence. See Grounds 2 and 3 of the grounds of appeal.On 8th January, 2007, when this appeal came up for healing, learned counsel for the appellants – Ajayi, Esqr., in his oral submission stated in respect of their issue 1, that there was no certainty of the boundaries of the land in dispute. On issue 2, he stated that credibility was in issue and yet, the court below proceeded to evaluate. That the position therefore, is for an order of retrial. He cited and referred to the case of Okomalu v. Akinbode (2006) 4 SCNJ 53 (it is also reported in (2006) All FWLR (Pt. 314) 211); (2006) 9 NWLR (Pt. 985) 338.

He still urged the court to allow the appeal, set aside the judgment of the court below and order a retrial.

On his part, Chief Orbih submitted that the parties know the land in dispute. That a survey plan was filed and that the surveyor, testified, that other witnesses also testified and that there is also concurrent findings of the two lower courts. That the boundary the appellants say there was contradiction, is about the boundary with a third party who is not a party in the dispute. That it was not a boundary dispute. That no issue was joined on the identity of the land as the surveyor, gave evidence and he was not challenged. On the issue evaluation, Chief Orbih submitted that the court below, did not go ahead to evaluate the evidence, only that it found as a fact, that the identity of the land, was not in issue. He finally urged the court to dismiss the appeal.

It is now firmly settled in a plethora of decided authorities, that land to which a declaration of title is sought, must be sufficiently identified. See the case of Ezeokeke & Sons v. Uga & Sons (1962) 1 ANLR (Pt. 1) 482, 484. In other words, in a claim of title, it must be made to a defined area, with certainty. See the case of Amodu Rufai v. Ricketts & 5 Ors. (1934) 2 WACA 95.

It is also settled that before a declaration of title is given, the land which it relates, must be ascertained with certainty. The test being whether a surveyor, can from the record, produce an accurate plan. See the cases of Kwacho v. Adjei (1944) 10 WACA 274; Chief Are v. Chief Obaloro (1968) NMLR 238; Arabe v.Asanlu (1980) 5- D 7 SC 78 at 90; Udofia v. Afia (1940) 6 WACA 216; Okorie v. Udom (1960) 5 FSC 162; (1960) SCNLR 326; cited also in the case of Oke & Ors. v. Eke & Ors. (1982) 12 SC 218 at 232 and many others. Also firmly established, is that in a claim for declaration of title to land, (as in the instant case leading to this appeal), the onus is on the plaintiff to prove title to a defined area to which a declaration, can be attached. See the cases of Odesanya v. Ewedemi (1962) ANLR (Pt.1) 320 & 320; Okuoja v. Ishola (1982) 7 SC 314 at 351 citing Udofia v. Afia (supra); Baruwa v. Ogunsola (1938) 4 WACA 158; Elias v. Sulathan (1973) 1ANLR 282; and Elias v. Omo-Bare (1982) 5 SC 25 just to mention but a few. It is also firmly settled, that where a plaintiff in an action for declaration of title, fails to prove the boundaries of the land he is claiming, he has failed by that omission, to prove his case and the proper order which the court should make in such circumstances, is usually one of dismissal of the claim. See Amata v. Modekwe (1954) 14 WACA 580; Alade v. Dina (1943) 17 NLR 32; Epi & Anor: v. Aigbedion (1975) 1NMLR 31; (1973) 5 UILR. (Pt. 11) 157; (1972) 10 S.C. 53; and Ugbo v.Nwokeke 6 ENLR 106. Indeed, it is also settled that inaccurate plan, will defeat a plaintiff’s claim. This is also the case, if the description of the land in dispute, contradicts the plan. I have got this far, in order to let the appellants know and appreciate, that these settled principles of law, are clear and unambiguous and no longer in doubt. But in the instant case, not only did the respondents, produce and tender a survey plan exhibit 7, they also called a licensed surveyor – PW7 who testified on oath and identified exhibit 7 which was tendered, without any objection. The records show that his evidence, was never challenged by the appellants in cross-examination. The boundary witnesses, also testified. The trial Court, was satisfied that the identity of the land in dispute, was clearly established in evidence.

As a matter of fact and this is also settled, where the identity of the land in dispute, is known to the parties and not in dispute, no plan is necessary. Absence of a plan, is not fatal to a plaintiff’s claim, if proper description of the land is available in the proceedings. See Etiko v. Aroyewun (1959) 4 FSC 129; (1959) SCNLR 308; Arabe v. Asanlu (supra); Chief Sokpui II v. Chief Agbozo III (1951) 13 WACA 241 at 242; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; (1985) 4 SC 250 at 275 just to mention a few. Indeed, and this is also settled, where the identity of land is not clear to a defendant, he could or should in fact, apply for particulars.

As I stated earlier in this judgment, the production and tendering of a survey plan is one of the ways in which evidence can be led to prove the boundaries of a land in dispute. See also the case of Chief Emiri & 4 Ors. v. Chief Imieyeh & Anor. (1999) 4 NWLR (Pt. 5 99) 442 at 463,465,468; (1999) 4 SCNJ 1. But a plan, is not a sine qua non. See the case of Akpagbue & Anor. v. Ogu & Ors. (1976) 6 SC 63 at 45-46. Some description, however, is necessary to make a disputed land, ascertainable. See Chief Sokpui II v. Chief Agbozo (supra) at 242 and Ajadi B. Awere v. Suleman Lasoju (1975) NMLR 100 at 101, both reflected to in the case of Alli v. Aleshinloye (2000) 6 NWLR (Pt. 660) 177 at 215; (2000) 4 SCNJ 16. See also Chief Emiri & Ors. v. Chief lmieyeh & Anor. (supra) wrongly cited in the respondent’s briefs. (It is not Pt. 442) but at page 442).