- Whether a party who pleads and traces his root of title to a particular person or source must establish it
- Whether a counter claimant in an action for declaration of title to land can dispute the identity of land
- A CLAIMANT WHO FAILED TO ESTABLISH HIS FUNDAMENTAL ROOT OF TITLE TO LAND CANNOT SUBSEQUENTLY ANCHOR HIS CLAIM ON ACTS OF POSSESSION
- ALLOTMENT AND PARTITION OF FAMILY LAND/PROPERTY
- IDENTITY OF DISPUTED LAND
Whether a party who pleads and traces his root of title to a particular person or source must establish it #
ABDULLAHI v. NUHU (2013) LPELR-22625(CA)
“The fourth requirement, who between the grantor of the document of title of the Respondent and the grantor of the document of title of the Appellant had in fact what it purported to grant, was perhaps the main question before the lower the Court in this matter. This requirement is an off-shoot of the general principle that where in a claim for declaration of title, the claimant relies on derivative title, he must not only plead and prove how he derived his title, but also the title of the person from whom he claims to have derived title. In Ngene V. Igbo (2000) 4 NWLR (Pt 651) 131 at 149 Iguh, JSC observed: “It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how that person or family derived his or its title to such land. Accordingly, the plaintiff, to succeed in his claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet, meaning that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such land particularly where as in the present case, the defendant did not concede ownership of the land by the plaintiff’s grantors but expressly denied same.” The point was reiterated by Iguh, JSC in Uche V. Eke (1998) 9 NWLR (Pt 564) 24 at 35 where the leaned Justice stated: “In the first place, it has been stressed times without number that it would be wrong to assume that all a person who resorts to a grant as a method of proving title to land needs do is simply to produce his deed of title and rest his case thereon. Without doubt, the mere tendering of such a document of title may be sufficient to prove such a grant where the title of the grantor to such land is either admitted or not in dispute. Where, however, as in the present case, an issue has been seriously raised as to the title of such a grantor to the land in dispute, the origin or root of title of such a grantor must not only be clearly averred in the pleadings, it must be proved by evidence.” Thus in Olawore V. Olanrewaju (1998) 1 NWLR (Pt 534) 436, the Court held that in a claim for declaration of title it was not just enough for the claimant as done by the appellants herein to mention in evidence the name of Oba Ladigbolu whom they claim headed the Oyo provincial Government which allocated the land in dispute to them but they must plead and prove facts as to from whom the said Oyo Provincial Government derived its own title over the land.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 34 – 36 Paras C – E)
BAKO & ANOR v. AUDU & ANOR (2018) LPELR-44394(CA)
“The lower Court stated in the judgment that the land in dispute was a parcel of land lying and situate in Bagel Village in Dass Local Government Area of Bauchi State. Counsel to the Appellants contested in his arguments that the Respondents did not lead cogent evidence to establish this fact as found by the lower Court and Counsel to the Respondents maintained that there was no contest on the land in dispute as it was obvious from the pleadings and evidence that it was well known to the parties. The necessary question that arises from these submissions is whether the identity of the land in dispute was in issue between the parties? The law is that the duty to prove the identity of the land in dispute, arises only where the identity of the land is in issue between the parties; where it is not in issue, the claimant has no duty to prove it – Fatuade Vs Onwoamanam (1990) 2 NWLR (Pt 132) 322, Adelusola Vs Akinde (2004) 12 NWLR (Pt 887) 295, Ayuya Vs Yonrin (2011) 10 NWLR (Pt 1254) 135, Dakolo Vs Rewane-Dakolo (2011) 16 NWLR (Pt 1272) 22. In Ologunleko Vs Ikuemelo (1993) 2 NWLR (Pt 273) 16, Adio, JCA (as he then was) said at page 24 G-H; thus: “If the faulty or inconsistent descriptions of the boundaries of the land in dispute in the amended statement of claim and in the oral evidence led by the appellant are disregarded, the relevant question is whether the land in dispute was well-known to the parties. In my view, the land in dispute was well-known to both the appellant and the respondents. It was not a virgin land. The appellant’s evidence was that the 1st respondent was building a house on it and the 1st respondent conceded that he was building a house on it.” Where the identity of the land is admitted by a defendant, there is no onus on a claimant to prove it – Aboyeji Vs Momoh (1994) 4 NWLR (Pt 341) 646, Ogbu Vs Wokoma (2005) 14 NWLR (Pt 944) 118, Otanma Vs Youdubagha (2006) 2 NWLR (Pt. 964) 337, Maishanu Vs Anchan (2008) 6 NWLR (Pt 1084) 565. Also, where the identity of the land is ascertained with clarity from the pleadings of the parties, the burden to establish the identity of the very land ceases to be on the claimant – Adelusola Vs Akinde (2004) 12 NWLR (Pt. 887) 295, Ogun Vs Akinyelu (2004) 18 NWLR (Pt 905) 362, Charlie Vs Gudi (2007) 2 NWLR (Pt 1017) 91. Similarly, where the area of land in dispute is well known to the parties, or where there is enough evidence for the Court to infer the identity of the land, the question of proof of the identity of the land does not arise – Akinterinwa Vs Oladunjoye (2000) 6 NWLR (Pt 659) 92, Gbadamosi Vs Dairo (2007) 3 NWLR (Pt 1021) 282, Adedeji Vs Oloso (2007) 5 NWLR (Pt 1026) 133, Aremu Vs Adetoro (2007) 16 NWLR (Pt 1060) 244. In the instant case, the Respondents pleaded that the portion of land in dispute was the piece of farmland that they loaned to the father of the first Appellant and which the first Appellant sold to the second Appellant and part of their claims was for a declaration that the sale of the land by the first Appellant to the second Appellant was null and void. The Appellants asserted that the first Appellant was the owner of the land in dispute and that he had the right to sell same to the second Appellant and part of the reliefs sought by the Appellants on the counterclaim was for a declaration that the sale transaction between them was valid. It is clear on the pleadings and evidence that the first Appellant sold only one parcel of land to the second Appellant in Bagel Village in Dass Local Government Area of Bauchi State. In Anyanwu Vs Uzowuaka (2009) 13 NWLR Pt 1159) 445, the Court stated that a defendant who counterclaims and seeks the relief of joint ownership of a piece of land and an injunction restraining the claimant from doing certain things on the land without his concurrence, cannot turn around to argue that the identity of the land was not established as such an argument is a contradiction of his counterclaim. Additionally, the records of appeal reveal that in the course of trial, the lower Court visited the locus in quo on the 13th of May, 2016. The report of the happening at the locus in quo was recorded by the lower Court thus: “Court visit to the locus in quo at Bagel Village of Dass Local Government Area. The Plaintiffs have taken the Court round into the farmland, the subject matter of this suit. The Court was shown the portion of land that was sold to the 2nd Defendant by the 1st Defendant and the portion and the other one that was cleared by the father of the 2nd Defendant.” There is nothing on record to show that the Appellants or their Counsel objected to or protested this record of the events that took place during the visit to the locus in quo. The law, and as rightly pointed out by the Counsel to the Respondents, is that in a land litigation where a visit to the locus in quo is conducted in the presence of both parties without any of them objecting as to the identity, size or boundaries of the land in dispute which was physically seen by all, it effectively absolves the claimant from his duty under the law to prove identity of the land in dispute as the parties in such circumstance will be said to be familiar with or to know the land in dispute – Osanyinbi Vs Sokenu (2001) 3 NWLR (Pt 699) 170, Odofin Vs Oni (2001) 3 NWLR (Pt 701) 488, Atanda Vs Iliasu (2013) 6 NWLR (Pt 1351) 529, Mu’azu Vs Unity Bank Plc (2014) 3 NWLR (Pt 1395) 512. It is obvious in these circumstances that the land in dispute is well known to the parties and the identity of the land in dispute cannot be said to be in issue.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 20 – 24 Paras A – E)
Whether a counter claimant in an action for declaration of title to land can dispute the identity of land #
ALABELAPA v. AJISEFINI (2017) LPELR-43234(CA)
“The appellant was/is a counter-claimant. On this score, the law bestows on him the herculean duty to prove the identity of the disputed land, with precision, if his counter – claim must succeed. To this end, the appellant’s quarrel with the identity of the disputed land constitutes coup de grace on the success of his counter-claim.By his argument, the appellant, a counter-claimant, could be likened to a man who, while praying, fervently, for long life, is armed, in his surface pocket, a time bomb which, on detonation, will put an end to his precious and priceless life, see Yoye v. Olubode (1974) 9 NSCC 409 at 414.” Per OBANDE FESTUS OGBUINYA, JCA (Pp 52 – 53 Paras F – D)
NWANKWO & ORS v. OKAFOR & ORS (2019) LPELR-48188(CA)
“Where a defendant counter claims and seeks an order of injunction or forfeiture of the same land over which the plaintiff seeks the same relief, the defendant cannot turn round to contend that the identity of the land in dispute is not certain as that contention will be inconsistent with his claim.” Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 49 – 49 Paras D – F)
OSENI & ORS v. OYETORO & ORS (2018) LPELR-44326(CA)
“The respondents counter- claimed against the respondent as manifest in their statement of defence and counter-claim. The very act of counter-claiming disables them from protesting the identity of the land. In Anyanwu v. Uzowuaka (supra), the Supreme Court, per Tabai, JSC, held: Furthermore it my firm view that defendants in a land matter, as in this case, who counter-claimed… cannot turn round to argue that the identity of the land was not established. In my view the very argument is a contradiction to their counter-claim, because they cannot counter-claim over a piece of land which identity they do not know. Thus, the respondents’ counter-claim perforates their sterling contention on the identification of the disputed property. It further constitutes an albatross around their counter-claim. By their argument, the respondents, counter-claimants, are likened to a man who, while praying earnestly for long life, yet carries, in his surface pocket, a time bomb which, on detonation, would put an end to his precious life, see Yoye v. Olubode (1974) 9 NSCC 409 at 414. This paradoxical situation, clearly, robs the respondents of the competence to question the identity of the disputed land.” Per OBANDE FESTUS OGBUINYA, JCA (Pp 19 – 20 Paras A – A).
A CLAIMANT WHO FAILED TO ESTABLISH HIS FUNDAMENTAL ROOT OF TITLE TO LAND CANNOT SUBSEQUENTLY ANCHOR HIS CLAIM ON ACTS OF POSSESSION #
CASE IN POINT – UGWU v. NWANNAJI & ORS (2018) LPELR-43935(CA)
It has long been established that there are five methods of proofing title to land, in law. If a claimant hinges his title to land on one of the known methods of proving title to land, can he, midway into trial and for whatever reasons, change his means of proving title to another method? In this Appeal, the Court spoke extensively on proof of title to land by the traditional history method and the plausibility or otherwise of turning around to rely on another method.
The Court, Per BOLAJI-YUSUFF, J.C.A explained what is required of a claimant hinging ownership/title to land on traditional history as follows: “It is settled that a claimant who seeks title to land and relies on the traditional history must plead a root of his title, the names and history of his ancestors and lead cogent, credible and satisfactory evidence in proof thereof.”
The Court reinforced that the fact that the traditional history transcends the claimant’s birth will not be an excuse for failing to properly trace the root of title when it held Per BOLAJI-YUSUFF, J.C.A that “The contention of the appellant’s counsel that the appellant could not have named the founder of the lands in dispute beyond living memory when he had not even been born is an innovation of the counsel and an attempt to run away from reality. The reality is that traditional history deals with events beyond human memory. Therefore the appellant who knew that he had not been born when the lands were founded ought not to have pleaded and/or relied on traditional history.”
On whether a claimant can abandon his claimed root of title mid-way to pick up another method of proofing his root of title, BOLAJI-YUSUFF, J.C.A said “The law is settled that where a claimant pleads a root of title, that root of title has to be established first by cogent and credible evidence. Where he fails to proof his pleaded root of title he cannot turn around to rely on acts of ownership and possession which are predicated on the failed root of title.”
This position was further upheld by YAKUBU, J.C.A, in his own contribution where he succinctly put it that “The appellant clearly failed to prove his root of title to the land in dispute. He could not in the circumstances take umbrage under acts of possession and ownership allegedly performed by him.”
He went on to explain that “… where a claimant failed to establish his radical title to land, he cannot turn round to anchor his claim on acts of possession which had no foundation.”
FACTS IN BRIEF
The Appellant [then claimant] instituted the suit from which this appeal stemmed in the High Court of Enugu State wherein he sought for a declaration that he is entitled to the Statutory Right of Occupancy of five different pieces of land situate at Umuodu Amechi – Uno, Enugu South Local Government Area of Enugu State.
The appellant’s case is that he and his ancestors have been the customary occupants of the lands from time immemorial and that by the native law and custom of Umuodu, Amechi – Uno, Awkunanwo, he inherited the lands in dispute from his ancestors as the direct biological and legitimate son of late Okoli Ugwu Nwani, son of Ugwu Nwani. That sometime in the year 2002, the 1st, 2nd and 3rd respondents wanted to sell one of the pieces of land to which the Appellant lays claim to one Chief Chukwuma Agbo but he persuaded Chief Agbo not to buy the land because it belongs to him. Further that the 1st – 3rd respondents trespassed on Ani Osite land, have continued to farm thereon and refused to vacate the land.
The respondents’ [then defendant] case on the other hand, is that the 1st – 3rd respondents inherited the lands in dispute from their great, great grandfather Oduangene who was a big time farmer and had many farm lands. They submitted that Oduangene had three male children two of which died without male children. The entire inheritance of Oduangene, including the lands in dispute therefore fell on the third Child who was the grandfather of the 1st and 3rd respondents. The grandfather bore two male children one who fathered the 1st respondent and the second being the father of the 2nd and 3rd respondents. The 4th and 5th respondents purchased their respective lands and performed the traditional rite of “Ihe Okuku” which signified that the sales were absolute. The 4th respondent has since completed his house and has been living therein. Three witnesses testified for the appellant while the respondents called 4 witnesses.
Upon completion of trial, judgment was delivered by the trial Court and it was held that the appellant failed to prove his ownership of the lands in dispute and dismissed his case.
Dissatisfied with the judgment, the appellant filed this appeal.
ISSUE(S) FOR DETERMINATION
The issues considered by the Court in determining this Appeal are:
(1) Whether the learned trial Court erred in law by not considering nor applying the five (5) ways of proving ownership of land, except the one that border on traditional history, albeit the plaintiff/appellant advocated that he fulfilled almost all the five set standard for proving ownership of land.
(2) Whether the learned trial Court erred in law by not considering the uncontroverted vital evidence of PW. 3 Emmanuel O. Chukwu, who testified to the fact that according to their traditional practice, as a son – in – law, he used to cultivate the piece of land now in dispute (in issue) for the true owner, who was the grandfather and father of the plaintiff/appellant, way back in 1964, when the father of the appellant) was still alive, without molestation from the defendants/respondents nor anybody whatever.
(3) Whether the learned trial Court erred in law by emphasizing on and in fact expecting the plaintiff/appellant (as PW.1) to have named the founder of the piece of land in dispute, who obviously lived centuries before he was born, even beyond the memory of his father and grandfather, through who he, in turn, actually inherited the land in dispute, thereafter the honourable Court erroneously relied primarily, on the prevarication of the defendants/ respondents and subsequently solely based its decision/judgement on the purpose of this suit, contrary to the prevailing reality in their community.
(4) Whether the learned trial Court invariably erred in law by ignoring the fact that the plaintiff’s/appellant’s father was vehemently opposed to and as such was challenging the defendants’/respondents’ unlawful occupation of his pieces of land in issue and had even reported the land dispute to his extended family meeting before he died, unfortunately, when the land dispute could not be deliberated on and resolved by his family or kindred meeting, but his son, the appellant thereafter continued the struggle to reclaim his late father’s lands now in dispute, even in Court of law and justice.’’
HELD
The Court held that the appeal fails as it totally lacks merits, same was dismissed and the judgment of the High Court of Enugu State delivered in suit no. E/147/2002 on 24/11/2010 was affirmed. The sum of N50, 000.00 was awarded as costs in favour of the respondents against the appellant.
RATIO DECIDENDI
EVIDENCE – TRADITIONAL EVIDENCE/HISTORY: What a party relying on traditional history is expected to plead and prove to establish his root of title; effect of failure of a party to prove same
“It is settled law that in a claim for declaration of title to land, the onus is on the claimant to plead and prove one or more of the five accepted ways of proving ownership of land in Nigeria. In the instant case, the appellant pleaded as follows in paragraphs 8 and 18 of the statement of claim:
8 “From immemorial time, by the native law and custom of Umuodu, Amechi Uno, Awkunanwo, the plaintiff inherited from his ancestors or predecessors the following pieces, parcels and plots of land, in respect of which he is entitled to statutory right of occupancy as a beneficial owner thereof.
18. The plaintiff and his ancestor have been the customary occupants of the land in issue from time immemorial and the adverse parties or disputants did not purchase any piece or parcel of land from the plaintiff or his representatives.”
It is clear from the above averments of the appellant that he claims ownership of the lands in dispute by inheritance under native law and custom. In essence, he relies on traditional history. Where a plaintiff claims ownership of land through inheritance under native law and custom from time immemorial or traditional history, he must plead and give evidence of who founded the land, how he founded it and the persons who have held title or took possession or control of the land and through whom he claims until it devolved on him. See ANYAFULU V. MEKA (2014) 7 NWLR (PT.1406) 396 AT 416 (D – F). [NEED TO PLEAD GEANEOLOGY OF ANCESTORS WHO OWNED THE LAND WHERE TRADITIONAL HISTORY IS RELIED ON AS ROOT OF TITLE]
The appellant merely pleaded and asserted that he and his ancestors have been customary occupants of the land in dispute from time immemorial. He failed to name the ancestors and how the ancestors came to occupy the land. He started from his grandfather and did not link his grandfather to any ancestor. It is not the appellant’s case that his grandfather was the first to occupy or use or settle on the lands in dispute.
On the above pleadings and the evidence led the Court below found and held as follow:
”From the contents of paragraphs 7, 8 and 18 of the statement of claim, it is clear that the plaintiff did not or could not trace the history of how the pieces of land devolved on him. He did not mention any other name associated with the land in terms of ownership except his father and grandfather. Nor did he explain how the land was founded and who founded them. His averments therefore fell short of traditional history as enunciated in the case of IROLU V. UKA and OLOSHE v OGUNBODE (supra). Again, the plaintiff or any of his witness did not give any evidence of traditional history at all. Consequently, the plaintiff has failed the twin test of pleading and proving traditional history.
I agree with the learned counsel for the defendants that the issue of conflicts in traditional history does not arise since the plaintiff failed to furnish any traditional history.
I have already, in this judgment, held the view that the primary root of the title of the plaintiff as pleaded is traditional history. On the authority of IROLO V. UKA (supra), since the primary root of title pleaded by the plaintiff has failed it follows that the other two roots of title much earlier stated which are dependent on the primary root of the title i.e. traditional history, must also fail and have therefore failed. The plaintiff’s case having failed, it is time, (sic) not necessary to examine the defence of the defendants. The reason is that for the plaintiff to succeed he must rely on the strength of his own case and not on the weakness of the defendant’s case.” The necessity for the appellant to trace his ancestral genealogy became glaring when the respondents pleaded and gave evidence of their genealogy from Oduanagene who they claimed was the first to own the land through the intervening owners who had taken possession and controlled the lands until the lands devolved on them. The appellant having failed to establish his grandfather’s link to any ancestor(s), the burden of proof did not shift on the respondents as there was nothing for them to defend. It was out of abundance of caution that the Court below considered the defence of the respondents at all. The contention of the appellant’s counsel that the method of tracing the founder or genealogy in land ownership dispute applies mainly to communal land is an affront to principle of law well established by a plethora of authorities. It is settled that a claimant who seeks title to land and relies on the traditional history must plead a root of his title, the names and history of his ancestors and lead cogent, credible and satisfactory evidence in proof thereof. See among others EZEOKONKWO & ORS V. OKEKE & ORS. LPELR – 1211 (SC), (2002) 11 NWLR (PT. 777) 1 AT 21 (D – H). ODI & ORS. V. IYALA & ORS (2004) LPELR – 2213 (SC), (2004) 8 NWLR (PT. 875) 283 AT 312 (A – C), where the Supreme Court Niki Tobi of blessed memory held as follows:
“In pleading traditional history, the plaintiff is expected to narrate the genealogical tree from original owner, the ancestor in generations appurtenant to him, down the line to the plaintiff or plaintiffs. One word which ties the genealogy and generations appurtenant to the original owners is “begat”, which in modern context is “begot” meaning “to become the father of” As modern pleadings no longer take the prototype of medieval language, the expression “begat” could be substituted for “give birth to”. [NEED TO PLEAD GEANEOLOGY OF ANCESTORS WHO OWNED THE LAND WHERE TRADITIONAL HISTORY IS RELIED ON AS ROOT OF TITLE]
In EZEOKONKWO & ORS V. OKEKE & ORS. LPELR – 1211 (SC), (2002) 11 NWLR (PT. 777) 1 AT 20 – 21 (H -A), the Supreme Court stated what is required of a person relying on traditional history in an action for declaration of title as follows:
“It cannot be over-emphasised that it is not sufficient for a party who relies for proof of title to land on traditional history to merely plead that he, and before him, his predecessors in title had owned and possessed the land from time beyond human memory. He must also plead and prove:-
(i) who founded the land.
(ii) how the land was founded and
(iii) particulars of the intervening owners through whom he claims. See also OKULEYE V. ADESANYA & ANOR. (2014) LPELR – 23021.
The contention of the appellant’s counsel that the appellant could not have named the founder of the lands in dispute beyond living memory when he had not even been born is an innovation of the counsel and an attempt to run away from reality. The reality is that traditional history deals with events beyond human memory. Therefore the appellant who knew that he had not been born when the lands were founded ought not to have pleaded and/or relied on traditional history. INEWO & ORS V. ANI & ORS (2004) LPELR – 1182 (SC), (2004) 3 NWLR (PT. 861) 610 AT 637 -638 (E – A), the Supreme Court stated what the history entails as follows:
“The Court below was also in error on the nature of evidence relied upon by the plaintiffs to establish their case, which they categorized as traditional evidence. This is “evidence as to rights alleged to have existed beyond time of living memory and proved by linguist or other members of the various tribes concerned”. ABINABINA V. ENYIMADU (1953) 12 WACA 171 AT P. 172. BLACKS LAW DICTIONARY, SIXTH EDITION P. 1495 defined Traditional Evidence as “evidence derived from tradition or reputation or the statement formerly made by persons since deceased in regard to questions of pedigree, ancient boundaries, and the like, where no living witnesses can be produced having knowledge of the fact. By its nature traditional evidence is hearsay evidence which according to the strict rules of evidence is inadmissible but is made admissible by Section 44 of the Evidence Act which provides that where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.”
The appellant’s counsel emphasised the fact that PW3 gave evidence of acts of ownership and possession which the Court below ought not to have ignored. The law is settled that where a claimant pleads a root of title, that root of title has to be established first by cogent and credible evidence. Where he fails to proof his pleaded root of title he cannot turn around to rely on acts of ownership and possession which are predicated on the failed root of title. See AWARA 7 ORS. V. ALALIBO 7 ORS. (2002) LPELR – 646 (SC). ORUNENGIMO & ANOR. V. EGEBE & ORS. (2007) LPELR – 2779 (SC), (2007) 15 NWLR (PT. 1058) 630 AT 650 (E-F). [PLAINTIFF WHO FAILS TO PROOF HIS ROOT OF TITLE CANNOT TURN AROUND TO RELY ON ACT OF POSSESSION/OWNERSHIP THAT ARE PREDICATED ON HIS FAILED ROOT OF TITLE]
The appellant having failed to establish the traditional history pleaded as his root of title, he cannot rely on acts of possession or ownership in prove of title to the land in dispute.
For the above reasons, all the issues are resolved against the appellant.”Per BOLAJI-YUSUFF, J.C.A. (Pp. 9-17, Paras. D-B)
Per OGUNWUMIJU, J.C.A. (Pp. 17-18, Paras. E-C)
“What is however to note is that the appellants counsel did not make any effort to study the settled law in relation to how title to land must be proved. How else can one explain his argument that no Court should expect a litigant whose case depends on his inheritance of the land from his father and grandfather to talk about what he called ancient history not to the knowledge of the claimant. Indeed, proof of traditional history of ownership of land from when the land was acquired by whatever means by the Claimant’s ancestors and the land’s devolution to him is one of the ways of proving root of title and ultimately ownership of the land in dispute. The evidence adduced at trial by the appellant to establish that he should be given declaration of title to the various pieces of land in dispute is pathetically laughable and was rightly disbelieved by the learned trial judge.”
Per YAKUBU, J.C.A. (Pp. 18-19, Paras. E-C)
“The appellant clearly failed to prove his root of title to the land in dispute. He could not in the circumstances take umbrage under acts of possession and ownership allegedly performed by him which were tantamount to trespassory acts.
That is, where a claimant failed to establish his radical title to land, he cannot turn round to anchor his claim on acts of possession which had no foundation. Fasoro v. Beyioku (1988) 4 S.C. 151; Odofin v. Ayoola (1984) 11 S.C. 72; Adisa v. Oyinwola (2000) 10 NWLR (pt. 674) 116 at 178-179.
The appeal stands no chance of success. Instead, it stands dismissed.”
ALLOTMENT AND PARTITION OF FAMILY LAND/PROPERTY #
CHUKWUMA v. CHUKWUMA & ORS (2009) LPELR-11907(CA)
Principle – Whether oral partition is a valid way of partitioning family land
“The issue of ‘oral partition’ can be said to have been alluded to in the said paragraphs. In any case partition is one of the methods by which family property can be determined whereby such property is split up into ownership of the individual family members or among constituent members. The main condition of validity of partition is that the partitioning by the family head must be with the consent of joint owners joining in the voluntary partition of the property. Although partition could be by deed, under customary law ORAL PARTITION of property is valid. See: Taiwo VS. Taiwo (1958) SCNLR 244; Olorunfemi VS. Asho (2000) 1 SC 15; Alao vs. ACB Ltd. (2000) 6 SC (Pt.1) 27. This therefore answers the plaintiffs/appellant’s counsel’s grouse that no deed or evidence or testimonials or mode of partitioning was led by the respondents. See also Onasanya vs. Shiworuku. (1960) WNLR 166. It is trite law that where there is evidence of partition as in this instant case, this signifies an end to communal ownership. See Chukwuemeka vs. Nwankwo (supra) at page 195; Alhaji Adebayo vs. Alhaji Olowosoga (1988) 9 SCNJ 78 at 88.” Per AMIRU SANUSI, JCA (Pp 14 – 15 Paras C – B)
AKAYEPE & ANOR v. AKAYEPE (2009) LPELR-326(SC)
Principle- What is the legal incidence of partition
“What is the legal incidence of partition? Where family property is partitioned, the property belongs exclusively to the party as it is no more in the family melting pot. As owners of the partitioned portion, they have acquired all the incidents of ownership in the sense that they can do anything they like with the property. The owners of the partitioned property are not subject to the rights of another person. Because they are the owners, they have the full and final right of alienation or disposition without seeking the consent of another person because as a matter of law and fact, there is no other party’s right over the partitioned property that is higher than theirs. They have the inalienable right to sell the property at any price, even at a give away price. They can even give it out gratis, that is, for no consideration. Is that the position in this case? Is the land in dispute partitioned? I think not. Where a portion of land has not been partitioned, the relief of injunction lies in favour of the family that owns the land against any trespasser.” Per NIKI TOBI, JSC (Pp 39 – 39 Paras A – F)
IDENTITY OF DISPUTED LAND #
BAKO & ANOR v. AUDU & ANOR (2018) LPELR-44394(CA)
Issue – Whether proof of identity is required where the identity of the land in dispute is known to the parties
“The lower Court stated in the judgment that the land in dispute was a parcel of land lying and situate in Bagel Village in Dass Local Government Area of Bauchi State. Counsel to the Appellants contested in his arguments that the Respondents did not lead cogent evidence to establish this fact as found by the lower Court and Counsel to the Respondents maintained that there was no contest on the land in dispute as it was obvious from the pleadings and evidence that it was well known to the parties. The necessary question that arises from these submissions is whether the identity of the land in dispute was in issue between the parties? The law is that the duty to prove the identity of the land in dispute, arises only where the identity of the land is in issue between the parties; where it is not in issue, the claimant has no duty to prove it – Fatuade Vs Onwoamanam (1990) 2 NWLR (Pt 132) 322, Adelusola Vs Akinde (2004) 12 NWLR (Pt 887) 295, Ayuya Vs Yonrin (2011) 10 NWLR (Pt 1254) 135, Dakolo Vs Rewane-Dakolo (2011) 16 NWLR (Pt 1272) 22. In Ologunleko Vs Ikuemelo (1993) 2 NWLR (Pt 273) 16, Adio, JCA (as he then was) said at page 24 G-H thus: “If the faulty or inconsistent descriptions of the boundaries of the land in dispute in the amended statement of claim and in the oral evidence led by the appellant are disregarded, the relevant question is whether the land in dispute was well-known to the parties. In my view, the land in dispute was well-known to both the appellant and the respondents. It was not a virgin land. The appellant’s evidence was that the 1st respondent was building a house on it and the 1st respondent conceded that he was building a house on it.” Where the identity of the land is admitted by a defendant, there is no onus on a claimant to prove it Aboyeji Vs Momoh (1994) 4 NWLR (Pt 341) 646, Ogbu Vs Wokoma (2005) 14 NWLR (Pt 944) 118, Otanma Vs Youdubagha (2006) 2 NWLR (Pt. 964) 337, Maishanu Vs Anchan (2008) 6 NWLR (Pt 1084) 565. Also, where the identity of the land is ascertained with clarity from the pleadings of the parties, the burden to establish the identity of the very land ceases to be on the claimant – Adelusola Vs Akinde (2004) 12 NWLR (Pt. 887) 295, Ogun Vs Akinyelu (2004) 18 NWLR (Pt 905) 362, Charlie Vs Gudi (2007) 2 NWLR (Pt 1017) 91. Similarly, where the area of land in dispute is well known to the parties, or where there is enough evidence for the Court to infer the identity of the land, the question of proof of the identity of the land does not arise – Akinterinwa Vs Oladunjoye (2000) 6 NWLR (Pt 659) 92, Gbadamosi Vs Dairo (2007) 3 NWLR (Pt 1021) 282, Adedeji Vs Oloso (2007) 5 NWLR (Pt 1026) 133, Aremu Vs Adetoro (2007) 16 NWLR (Pt 1060) 244 [FOUR INSTANCES WHERE THE ISSUE OF IDENTITY OF THE LAND WILL NOT ARISE]. In the instant case, the Respondents pleaded that the portion of land in dispute was the piece of farmland that they loaned to the father of the first Appellant and which the first Appellant sold to the second Appellant and part of their claims was for a declaration that the sale of the land by the first Appellant to the second Appellant was null and void. The Appellants asserted that the first Appellant was the owner of the land in dispute and that he had the right to sell same to the second Appellant and part of the reliefs sought by the Appellants on the counterclaim was for a declaration that the sale transaction between them was valid. It is clear on the pleadings and evidence that the first Appellant sold only one parcel of land to the second Appellant in Bagel Village in Dass Local Government Area of Bauchi State. In Anyanwu Vs Uzowuaka (2009) 13 NWLR Pt 1159) 445, the Court stated that a defendant who counterclaims and seeks the relief of joint ownership of a piece of land and an injunction restraining the claimant from doing certain things on the land without his concurrence, cannot turn around to argue that the identity of the land was not established as such an argument is a contradiction of his counterclaim. [EFFECT OF A COUNTERCLAIM VIS AS VIS THE ARGUMENT THAT THERE IS A DISPUTE AS TO THE IDENTITY OF THE LAND]. Additionally, the records of appeal reveal that in the course of trial, the lower Court visited the locus in quo on the 13th of May, 2016. The report of the happening at the locus in quo was recorded by the lower Court thus: “Court visit to the locus in quo at Bagel Village of Dass Local Government Area. The Plaintiffs have taken the Court round into the farmland, the subject matter of this suit. The Court was shown the portion of land that was sold to the 2nd Defendant by the 1st Defendant and the portion and the other one that was cleared by the father of the 2nd Defendant.” There is nothing on record to show that the Appellants or their Counsel objected to or protested this record of the events that took place during the visit to the locus in quo. The law, and as rightly pointed out by the Counsel to the Respondents, is that in a land litigation where a visit to the locus in quo is conducted in the presence of both parties without any of them objecting as to the identity, size or boundaries of the land in dispute which was physically seen by all, it effectively absolves the claimant from his duty under the law to prove identity of the land in dispute as the parties in such circumstance will be said to be familiar with or to know the land in dispute – Osanyinbi Vs Sokenu (2001) 3 NWLR (Pt 699) 170, Odofin Vs Oni (2001) 3 NWLR (Pt 701) 488, Atanda Vs Iliasu (2013) 6 NWLR (Pt 1351) 529, Mu’azu Vs Unity Bank Plc (2014) 3 NWLR (Pt 1395) 512. It is obvious in these circumstances that the land in dispute is well known to the parties and the identity of the land in dispute cannot be said to be in issue.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 20 – 24 Paras A – E)
Compiled by Frederick Nkobowo ESQ
