Duty of A Claimant in An Action for Declaration of Title to Land
In a civil action where a Claimant seeks a declaration from the Court that title to a piece or parcel of land belongs to him, the law has placed some duties which the Claimant must satisfy if his case is to succeed.
Claimant’s Duty to Show the extent of land claimed
The first duty of any claimant in an action for title to land is to show exactly and precisely a defined and identifiable area to which his claim relates. If the claimant fails on this first hurdle no further questions need arise. His case will stand dismissed.
APPLICABLE CASES;
IYAJI v. EYIGEBE (1987) LPELR-1571(SC)
“…the first duty of any claimant of title to land is to show exactly and precisely a defined and identifiable area to which his claim relates, Akinala Baruwa v. Ogunshola (1938) 4 W.A.C.A. 159. If the claimant fails on this first hurdle no further questions need arise. His case will stand dismissed. Even if, as was observed by the Area Court Grade II Ajaka and apparently approved by the Court of Appeal that:- “the land in dispute is within the land of plaintiff, Ajaka-ate, and within Ikare Anama” (the land of the Defendant). It was still the duty of the plaintiff/claimant to show clearly the precise boundaries separating his holding which he calls Ajaka-ate and the Defendant’s undisputed land known as Ikare Anama. If he fails to do this (as was certainly the case in this appeal) there again he will have his case dismissed by the trial Court and if he appeals an appellate Court is also bound to dismiss his appeal for failure to establish precise boundaries especially on the side in dispute where the lands of the parties are contiguous. Udofia & anor. v. Afia & ors. (1940) 6 W.A.C.A. 216 : Udekwe Amata v. Udogu Modekwe (1954) 14 W.A.C.A. 580 : Vincent Okorie & Ors. v. Philip Udom & Ors. (1900) 5 F.S.C,162.” Per CHUKWUDIFU AKUNNE OPUTA, JSC (Pp 11 – 12 Paras F – E)
UKAEGBU & ORS v. NWOLOLO (2009) LPELR-3337(SC)
“Now, it is firmly settled that normally, the first duty of any claimant of title to land, is to show exactly and precisely, a defined and identifiable area to which the claim relates. So said this court in the case of Musa Iyaji v. Sule Ejigebe (1987) 3 NWLR (pt.61) 523 @ 529; (1987) 7 SCNJ. 148 – per Oputa, JSC, citing the case of Akinola Baruwa v. Ogunshola (1938) 4 WACA 159. That if a claimant fails on the first hurdle, no further question need arise. That his case will stand dismissed. The cases of Udofia & anor. v. Afia & ors. (1940) 6 WACA 216; Udekwe Amata v. Udogu Modekwe (1954) 14 WACA 580 and Vincent Okorie & ors. v. Philip Udom & ors. (1960) 5 FSC. 162 were also referred to.” Per IKECHI FRANCIS OGBUAGU, JSC (Pp 42 – 42 Paras B – F)
ARCHIBONG & ORS v. ITA & ORS (2004) LPELR-535(SC)
“…one of the primary duties of a party who seeks declaration of title to land is to establish the identity of the land. See Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325; Baruwa v. Ogunshola (1938) 4 WACA 159 where it was held that where there is a doubt as to identity of the land, it behoves the claimant to file a plan – See also Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192.” Per SYLVESTER UMARU ONU, JSC (Pp 42 – 42 Paras C – E)
OKOCHI & ORS v. ANIMKWOI & ORS (2003) LPELR-2455(SC)
“In an action for declaration of title to land, it is the plaintiff’s first duty to prove the area over which he claims with certainty and precision. See Baruwa v. Ogunsola (1938) 4 WACA 159 and Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141. Where a plaintiff fails to lead satisfactory evidence of boundaries to the land in dispute which he claims, the action must fail. See Aboyeji v. Momoh (1994) 4 NWLR (Pt.341) 646. In an action for declaration of title to land when the boundary is in dispute, the duty of the plaintiff is to prove by evidence the identity of the land he claims. In doing so, he must prove with certainty the boundaries of the land in dispute.” Per NIKI TOBI, JSC (Pp 12 – 12 Paras C – E)
Duty to show how the land was acquired (the mode of acquisition of his title)
AJIBOYE v. ISHOLA (2006) LPELR-301(SC)
“It is however the duty of the plaintiff in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title and the law is that the said plaintiff must succeed on the strength of his own case and not on the weakness of the defence, although the plaintiff may take advantage of the defendant’s evidence where it supports his case – see Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252.” Per WALTER SAMUEL NKANU ONNOGHEN, JSC (Pp 28 – 28 Paras A – B)
OWAKAH v. RSHPDA & ANOR (2022) LPELR-57950(SC)
“The law is settled that to succeed in a case of declaration of title to land, a party must plead and prove the method by which he acquired the said title, ownership of land cannot be claimed by a party without establishing ownership. See FASORO VS BEYIOKU (1988) 2 NWLR (Pt 76) 263, NWOFOR VS NWOSU (1992) 9 NWLR (Pt 264) 229, ONWUGBUFOR V. OKOYE (1996) 1 NWLR (Pt 424) 2521 UNITED BANK FOR AFRICA PLC V. AYINKE (2000) 7 NWLR (Pt 663) 831, OYENEYIN V. AKINKUGBE (2010) 4 NWLR (Pt. 1184) 265. A claimant must satisfy the Court on the following: (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of the title claimed. See OBAWOLE V. COKER (1994) 5 NWLR (Pt 345) 4161, ADESANYA V. ADERONMU (2000) 9 NWLR (Pt 672) 370 at 3821, EDOHOEKET V. INYANG (2010) 7 NWLR (Pt 1192) 251, OBINECHE VS AKUSOBI (2010) 12 NWLR (Pt 1208) 383.” Per TIJJANI ABUBAKAR, JSC (Pp 20 – 21 Paras D – C)
BIG JOE VENTURES LTD v. IMALELE (2022) LPELR-57989(CA)
“it is the duty of the Plaintiff in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title and the law is that the said Plaintiff must succeed on the strength of his own case and not on the weakness of the defence, although the Plaintiff may take advantage of the Defendant’s evidence where it supports his case. See: Onwugbufor V. Okoye (1996) 1 NWLR (Pt.424) 252; MEMUDU AJIBOYE V. ALHAJI OLOYEDE ISHOLA (2006) LPELR-301(SC).” Per UCHECHUKWU ONYEMENAM, JCA (Pp 9 – 9 Paras A – C)
DIKE & ORS v. OKOLOEDO & ORS (1999) LPELR-946(SC)
SAMUEL v. WAZIRI & ORS (2016) LPELR-40313(CA)
“Therefore in an action for declaration of title to land, what the claimant was required to prove in order to succeed, are: 1. To ascertain the identity of the land to which his claim relates and prove it,2. Second, He must plead and establish the root of his title.As regards the issues of the proof of the identity of the land in question, the Apex Court in Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 held that: “The plaintiff must first and foremost plead and prove clearly the area of the land to which his claim relates and boundaries thereof and if the location and size of the land is in issue, the Plaintiff must prove the exact location and the area being claimed…” The Supreme Court also held in Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 10250 282, 300 that: “The issue of the identity of the land in an action for declaration of title to land is very fundamental. The Onus is on the Plaintiff seeking the declaration to establish the precise identity of the land he is seeking the declaration. See for example Ezukwu Vs. Ukachukwu (2004) 17 NWLR (Pt. 009) 227; Iordye V. Ihyambe (2000) 15 NWLR (Pt. 692) 675. But where the area of land in dispute is well known to the parties, the question of proof of the identity of the land does not arise. In such a situation it cannot be contended that the area claimed of the land in dispute us certain. See Akinterinwa V. Oladunjoye (2000) 6 NWLR (Pt. 659) 92. It must be emphasized in an action where the Plaintiff claims a declaration of title to land and fails to give exact extent and identity of the land he is claiming. His action should be dismissed. See Rufa v. Rickerts 2 WACA 95 Udofia V. Alfia. See also Arabe V. Asanlu (1980) 5-7 SC 78″ per Musdsdapher, JSC (as he then was).” Per SAIDU TANKO HUSSAINI, JCA (Pp 9 – 11 Paras F – C)
Ways of Proving title to Land
The Locus Classicus case of Idundun v Okumagba (1976) 9-10 SC 227 is noteworthy here. In that case, the Apex Court established that there are five ways of proving or establishing title to land or ownership of land. These five ways have been consistently upheld and repeated in many other cases since Idundun v Okumagba.
OMOTAYO v. CO-OPERATIVE SUPPLY ASSOCIATION (2010) LPELR-2662(SC)
“There are five ways of proving or establishing title to land or ownership of land. These are by- (1)Traditional evidence (2) Production of documents of title duly authenticated in the sense that their due execution must be proved unless they are documents twenty or more years old produce from proper custody. (3) By positive acts of ownership extending over a sufficient length of time. (4) By acts of long possession and enjoyment of the land. (5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. The establishment of one of the five ways is sufficient proof of ownership. Ayoola v. Odofin (1984) 11 SC 120. Ewo v. Ani (2004) 17 NSCQR 36 Piaro v. Tenalo (1976) 12 SC 31. Idundun v. Okumagba (1976) 9-10 SC 227 Ndukuba v. Izundu (2007) 1 NWLR Pg. 1016 pg. 432. Adanji v. Anwase (2006) 12 NWLR pt. 993 pg. 183. Nkado v. Obiano (1997) 5 NWLR pt. 503 pg 31. Nkwo v. Iboe (1998) 7 NWLR pt 558 pg. 354 Chukwu v. Diala (1999) 6 NWLR pt.608 pg. 674. Inwelegbu v. Ezeani (1999) 12 NWLR pt. 630 pg. 266. Adesanya v. Aderonmu (2000) 6 SC pt.11 pg. 18. Adeosun v. Jibesin (2001) 11 NWLR pt. 724 pg. 290.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 28 – 29 Paras E – D)
EZEANAH v. ATTA (2004) LPELR-1198(SC)
“In a civil claim of title to or ownership of land, for a party to succeed, he must prove his title in one of the five ways laid down in this Court’s decision of Idundun v. Okumagba (1976) 9-10 SC 227 followed by a long line of other decided authorities to the following effect: “1. Proof by traditional evidence. 2. Proof by production of documents of title duly authenticated to prove title. 3. Proof by acts of ownership extending over a sufficient length of time, numerous and positive as to warrant the inference that the person is the true owner. Vide Ekpo v. Ita (1932) 11 NLR 68. 4. Proof by acts of long possession and 5. Proof of possession of connected or adjacent land in circumstances probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.” See also Chukwu v. Diala (1999) 6 NWLR (Pt. 608) 674 at 681; Orubon v. Gbondu (1999) 11 NWLR (Pt. 628) 661; Otukpo v. John (2000) 8 NWLR (Pt. 669) 507 at 525; Okechukwu v. Okafor (1961) 1 All NLR 685.” Per SYLVESTER UMARU ONU, JSC (Pp 43 – 44 Paras C – B)
GONIRAM v. SUNDAY (2020) LPELR-51421(CA)
“From the pleadings of the parties, issues were duly joined. While as submitted by the Appellant, it may be technically right to say that the Appellant did not expressly claim title to the land in question in the reliefs set out in her statement of claim, title was decidedly put in issue by the pleadings of the parties. Therefore, in order for the Appellant to prove her entitlement to a declaration of possession and occupation of the land in dispute on the strength of her possession and occupation of the land as claimed, as opposed to the adverse claim of the Respondent who also contended that he owned the land having bought same and was also in possession, the Appellant was obliged to prove her title which entitled her to such possession and occupation of the land. This is settled law. In the case of Regd. Trustees of the Apostolic Faith Mission V James (1987) LPELR-2946(SC) 35-36, E-A, the Supreme Court per Oputa, JSC held as follows – “Since the only issue in this case is – as between the Plaintiffs and the Defendants, who has a better title? – it is necessary to investigate the parties respective roots of title. In any event, since the Plaintiffs claimed damages for trespass and perpetual injunction, they have put their title in issue for their claim to postulate that they are either the owners of the land in dispute or that before the trespass complained of, they were in exclusive possession of the land. The onus of proof was also definitely on the Plaintiffs.” (Emphasis supplied) Therefore, by virtue of the authority of Idundun V Okumagba (1976) 10 SC 277, the locus classicus on the issue, title to land can be proved in one or more of the following five methods: 1. Proof by traditional history or traditional evidence of the history of the land, which includes mode of acquisition of same, for instance, by deforestation of the virgin forest by the first settler, conquest of the original owners through acts of war, gifts, e.t.c. 2. Proof by grant or the production of documents of title to the land. 3. Proof by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such acts are the true owners of the land. 4. Proof by acts of long possession. 5. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would, in addition, be the owner of the land in dispute. See also Iseogbekun V Adelakun (2012) LPELR-15516(SC) 28-29, G-D, per Mukhtar, JSC; Dakolo V Rewane-Dakolo (2011) LPELR-915(SC) 23-24, E-D, per Rhodes-Vivour, JSC; Odunze V Nwosu (2007) LPELR-2252(SC) 67, C-F, per Onnoghen, JSC. Therefore, in the instant case, the Appellant having put her title in issue by also claiming trespass and injunction, was obliged to prove her title to the land by one of the five ways enumerated above. Indeed, one of the recognized ways of proof of title is by the production of documents of title or a valid instrument of grant. The production and reliance upon such a document of title or instrument of grant inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including: i. Whether the document is genuine and valid; ii. Whether it has been duly executed, stamped and registered; iii. Whether the grantor had the authority and capacity to make the grant; and iv. Whether it has the effect claimed by the holder of the document or instrument. See Romaine V Romaine (1992) LPELR-2953(SC) 15-16, E-B, per Nnaemeka-Agu, JSC; Nwadike V Ibekwe (1987) 4 NWLR (Pt. 67) 718.” Per JUMMAI HANNATU SANKEY, JCA (Pp 10 – 14 Paras D – D)
ADISA v. OYINWOLA & ORS (2000) LPELR-186(SC)
“The several ways in which title in land can be acquired should not be confused with the several ways in which such acquisition can be proved. The much cited case of Idundun & Ors v. Okumagba & ors. (1976) Vol. 10 NSCC 446 deals with ‘five ways in which ownership of land may be proved” and not the ways of acquiring title to land. In short Idundun & ors. v. Okumagba & Ors deals with matters of evidence rather than question of substantive law of acquisition of title. It is for this reason that acquisition of title by gift, grant, or purchase was not mentioned.” Per EMMANUEL OLAYINKA AYOOLA, JSC (Pp 43 – 43 Paras B – D)
Litigation Survey Plans
Position of the Law on a Litigation Survey Plan which is not countered
RAPHAEL & ANOR v. EZI (2014) LPELR-23328(CA)
“The settled legal position remains that a litigation survey plan which is not countered will be taken as accurately reflecting the disputed land. See ADELAJA v. ALADE (1999) 6 NWLR (PT 608) 544 or (1999) LPELR (109) 1 at 17 – 18, ADESANYA v. ADERONMU (2000) 9 NWLR (PT 672) 370 or (2000) LPELR (145) 1 at 24 and OGUN v. AKINYELU (supra).” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 14 – 15 Paras D – A)
AYEMWENRE v. EVBUOMWAN (2019) LPELR-47213(CA)
“The bone of contention therefore is whether it is the same parcel of land now in dispute. For the DW1 and DW2, the land is not the same land sold to the Appellant. But as per the evidence of the PW1, who prepared Exhibit ‘A’, the litigation survey plan, he produced same based on the content of Exhibits ‘B’, ‘E’ and ‘H’ as well as his visit to the land identified to him by the Appellant where he was shown the features on the land. Part of his evidence in Court reads thus: “In the month of December 1990 the plaintiff commissioned me to prepare a litigation survey for him in respect of the land in dispute. I went in his company to the land in dispute which situate at Etete layout road in Ugbor quarters, Benin City. The plaintiff showed me his document of title which included three sets of certificate of transfer, one from Emmanuel Igbinoba for a plot of 250ft by 100ft including an Oba’s approval. These are the documents now shown to me” … The transferors were Emmanuel Igbinoba, Osasu Osunbor and Osasuyi Uwuigbe. The plaintiff showed me round the boundaries of the land and identified the features on the land to me. He also identified his neighbours to the west as one John Idehen, he identified the ward beacons on the land and the various portions transferred by individual transferors, he identified a building on the land, the building blocks, building sand, wall fences all where by the defendant causes of action in this suit. I carried out my survey, produced a plan which I signed. I delivered certified copies to the plaintiff.” Further in his evidence the PW1 emphatically stated that he saw the ward beacons on the boundaries of the land. He also identified the three parcels of land sold to the Appellant by the three vendors which were marked yellow, brown and green respectively in Exhibit “A”. The boundary beacons he saw on the land were said to be marked by beacon Nos. 1333A, 1334A, 1335A, 1217A, 2252A, 2253A, 1216A. The Appellant’s land is said to be defined by beacons Nos. BDS 8682 CP1 – CP9. The evidence as adduced by the PW1 was not challenged or contradicted during cross-examination by the Respondent and the description of the land as given in his evidence is consistent with the content of Exhibit “A”. In other words, Exhibit ‘A’ provided a proper description of the land in dispute and identified same as correctly derived from Exhibits ‘B’, ‘E’ and ‘H’ which are the documents of title tendered in evidence and relied upon by the Appellant in proof of his title to the land. What is more, in the case of MOMOH VS. UMORU (2011) 15 NWLR (PT. 1270) 217 the Supreme Court relying on the earlier authorities of OKPULOKA VS. UME (1976) 9 – 10 SC 269 and OWOTAIRFE VS. ONOKPOSO (1984) 12 SC 19 held that it is the plaintiff’s survey plan that determines the land in dispute and not the defendant’s survey plan where the defendant has not counter claimed. In the instant case, the Respondent incidentally did not counter-claim so Exhibit N cannot upstage Exhibit “A”. Per SAMUEL CHUKWUDUMEBI OSEJI, JCA (Pp 34 – 37 Paras E – C)
OSULA v. INNEH (2015) LPELR-25692(CA)
“A careful reading of the record of appeal would reveal that the hostility between parties is a boundary dispute. The Appellant and the Respondent have a common boundary. The Respondent’s complaint is that the Appellant unlawfully outstripped the boundary into her land and to prove this she engaged the services of a surveyor who produced a litigation survey Plan Exhibit “A”. ?The Appellant on his own side did not prepare a litigation survey to show the status of the land in dispute. He merely denied trespassing into the Respondent’s land. In a similar situation as in this case, in the case of Adeagbo Vs. William (1998) 2 NWLR Part 536 Page 120 at 128 paragraph B Acholonu JCA (as he then was) held among others as follows:- “The Respondent has shown himself to have built a house on the land. He filed a plan of the area in dispute. The Appellant filed none. Therefore he is bound by the plan of the Respondent as he would be deemed to approve of it regardless of his denial. Mere ipse dixit of the Appellant without a plan should be discountenanced.” The Learned trial Judge applied the principle enunciated when he held as follows at page 75 of the record thus:-“After a calm and cool consideration of the entire evidence adduced by the parties and weighing the evidence of the Plaintiff and her witnesses vis-à-vis that of the Defendant I must say straightaway that I believe the candid and compelling evidence of the PW1, the registered surveyor that the present dimension of the Defendant’s land as depicted in Exhibit “A” verged “Green” is 100 feet x 131 feet. I also believe his credible evidence that the portion of the Plaintiff’s parcel of land trespassed into by the Defendant is 31 feet by 100 feet verged “yellow” in Exhibit “A”. At page 76 of the record of Appeal, the Learned trial Judge stated further:- “Additionally, it is my view that the defendant having failed to file a survey plan in rebuttal of the Plaintiff’s survey plan is deemed to have approved of the Plaintiff’s as to the boundaries at the land in dispute…” Finally on page 77 of the record of appeal the learned trial Judge held as follows:- “In the final result having weighed the evidence adduced by the Plaintiff in support of her claim including her witnesses and the documentary evidence tendered and placed side by side the evidence of the Defence on the imaginary scale of Justice, I prefer the case of the Plaintiff to that of the Defendant … I am satisfied that the Plaintiff has successfully proved her claim on the balance of probability as required by Law.” ?A careful review of the finding of the Learned trial Judge would show that the evaluation of evidence was done in compliance with the principle of evaluation as enunciated by the Apex Court in Mogaji vs. Odofin (Supra). In view of the foregoing, I therefore have no difficulty in coming to the conclusion that the Learned trial Judge’s appraisal of evidence adduced at the trial cannot be faulted.” Per JIMI OLUKAYODE BADA, JCA (Pp 11 – 14 Paras D – A)
How to put the identity/survey plan of a disputed land in issue
EKARIKO v. ATSENUWA (2022) LPELR-58448(CA)
“I cannot see where the appellant put the identity of the land in issue. It is immaterial that both sides used different units of measurements. There is no dispute about the location of the land, the area, the size or features of the land pleaded by the respondent. There is no issue raised about the survey plan of the respondent. The law as I have already stated is that to make a plaintiff’s survey plan an issue, the defendant should be clear and specific on the parts in controversy-is it the area, size, location, boundaries or locus in quibus of acts of possession? See Osuji v. Ogualaji (2002) 16 NWLR (Pt. 792) 136, 152. The case of Adenle v. Olude (2003) supra does not support the case of the appellant as the Supreme Court re-stated the position of the law as to how the identity of land in dispute in a case where there is a litigation survey plan is put in issue. The apex Court found that, just as in this case, the appellant did not put the identity of the land in dispute in issue.” Per JOSEPH EYO EKANEM, JCA (Pp 12 – 12 Paras A – E)
Offodile vs. Offodile & Ors (2019) LPELR-4785 (SC),
“The 2 Courts below by Exhibit A held that the boundary and delineations of the land in dispute were not proved with certainty by the Appellant to give him title to the land in dispute. The identity of land in dispute will be in issue, if the Defendants in their Statement of Defence made it one, that is, if they disputed specifically either the area or the size or the location or the features shown on the Plaintiff’s’ plan. When such is the case, then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the land. Where therefore the identity of the land is not an issue, the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact, in such cases, the plan can and should be tendered by consent. See Per TABAI, J.S.C in ANYANWU & ORS V. UZOWUAKA & ORS (2009) LPELR-515(SC
Anyanwu & Ors vs. Uzowuaka & Ors (2009) 13 NWLR (Pt. 1159) 445,
“In NWOBODO EZEUDU & ORS v. ISAAC OBIAGWU (1986) 2 NWLR (Part 21) 208 at 220 this Court, Per Oputa JSC, spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said: “The identity of land in dispute will be in issue, if and only if, the Defendants in their Statement of Defence made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. the onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there I will make bold to say that the mere production of the Plaintiff’s plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.”
When will a Litigation Survey Plan be required/not required in an action?
KPEKU & ORS v. SIBEKENEKUMU & ORS (2013) LPELR-20703(CA)
“… the law is that where both parties know the land in dispute, a survey or litigation plan is not necessary. See Sadiku Osho v. Michael Ape (1998) 6 SCNJ 139 at 142.” Per HELEN MORONKEJI OGUNWUMIJU, JCA (Pp 18 – 18 Paras B – C)
OLISA & ORS v. OBIORAH & ORS (2014) LPELR-24523(CA)
“Even though the filing of a litigation survey plan is not an indispensible essential in a claim for land, survey plans are usually filed to delineate the boundaries of the land which plan must agree with the evidence of the party such that there is certainty as to the area of land claimed: ONISESE v. OYELEYE (2008) 21 WRN 43 at 78. It however remains good law that a survey plan is not a desideratum if the identity of the land in dispute is clear and not in dispute: ADEDEJI v. OLOSO (2007) 5 NWLR (PT.1026) 133 and AREMU v. ADETORO (2007) 16 NWLR (PT.1060) 244 at 262.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 32 – 33 Paras D – A)
OMORUYI v. OBANOR (2011) LPELR-4349(CA)
“A survey or litigation plan may not in all circumstance be necessary that is where the land in dispute can be ascertained and known to both parties. The parties in this case would not have identified the land in dispute without a survey plan. See OMIYALE V. MACAULAY 2009 3 NWLR 345 SC. The trial Judge was therefore right when he said I quote – “I am satisfied and I find that the area verged Red in Exhibit 5 is the same as the area verged Pink in Exhibit 6. In other words the parties are disputing over one and the same parcel of land.” Per GEORGE OLADEINDE SHOREMI, JCA (Pp 13 – 13 Paras B – E)
AKHIGBE v. AIGBEZE (2017) LPELR-45656(CA)
“It is the law that where the identity of the land in dispute is known to the parties, there would be no need to file a litigation survey plan, but where the description of the land, location and dimension as given by the parties do not tally then, the identity and extent of the land are in issue, a survey plan would be necessary to clear doubts as to the land the claimant has alleged has been trespassed unto. In the case of OGEDENGBE & ORS VS. BALOGUN (2007) 9 NWLR (PT. 1039) 380; (2007) 3 SC (PT. 11) 71, the Apex Court held that 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, the absence of a plan is not fatal to the plaintiff’s claim if there is proper description of the land made available in the proceedings. See also EGBUTA & ANOR VS. ELEKWACHI & ANOR (2013) LPELR – 20666 (CA). The contrary is the position where there is no proper description of the land over which title is claimed and no litigation survey plan is produced. See also MUEME VS. GAJI (2001) 2 NWLR (PT. 697) 289, CHIEF DANIEL ALLISON IBULUYA and ORS VS. TAM BEBEBO DIKKO and ORS (1976) 6 SC 97 at 107 and CHIEF SOKPUI VS. CHIEF AGBOZO (1951) 13 WACA 241 at 242. A survey plan is used for the purpose of giving an accurate and precise description of the land claimed with scientific or mathematical precision. It is the law that, it is the duty of every claimant of title to land, as in this case, to adduce evidence showing the clear identity, boundary and other features of the land he claims. This duty or burden can be discharged by evidence of the description, boundary area and other features of the said land in dispute. Therefore, it is for the purpose of more accuracy or precision in identifying the land with mathematical accuracy or in a scientific manner that necessitates the use of a survey plan. Further, where the party claims the ownership of a larger or vast expanse of land including the land in dispute, or the land in dispute is part of a large portion as in the present case, a composite plan is filed to show the vast land as well as the portion in dispute, verged in a different or specific colour. Alternatively, the identification of the land could be proved by other evidence, mostly oral. In this appeal there is a dispute as to the identity, extent or area of the land in dispute where the appellant has made out that the respondent does not even know the land he claimed title for in the trial Court. In this situation, the identification by either oral evidence or survey plan (documentary) would be required. That way, it could be said precisely, yes, this portion of land is the land the claimant claimed title of without doubt and that it is the same land as described and identified by the appellant. That way, the Court would be in a position to determine whether the parties are at one with the dispute over the same portion of land in terms of location and extent. See SUNDAY DANIEL OBICHIE VS. JOHN A. ADETONA (2008) LPELR 8472 (CA), EZUKWU VS. UKACHUKWU (2004) 17 NWLR (PT. 902) 227 at 249; OTAMA VS. YOUDUBAGHA (2006) 2 NWLR (PT. 337) and OLADIMEJI VS. OSHODI (1968) 1 ALL NLR 47. In the respondent’s claim, he gave the dimension of the land over which he laid claim. In paragraphs 4, 5 and 11 of his written statement (evidence) on oath and as PW1 he similarly gave the measurement of the land and gave the location as situate at Obe Village particularly at Mechanic Road as in his claim. Similarly, the evidence of the PW 2 and PW 3. Can it then be rightly said that the claimant pleaded and gave evidence as to the location and extent of the land allegedly trespassed on with mathematical accuracy? How does one identify the particular portion in dispute at the Mechanic Road in Obe Village, surely there must be several portions of land on that road and in that Village mentioned above, moreso, where it has been challenged by the respondent. In this case, a litigation survey plan was necessary which would assist oral evidence in identifying the land over which the claimant claimed title and allegedly trespassed upon by the appellant.” Per CHIDI NWAOMA UWA, JCA (Pp 11 – 15 Paras F – C)
Composite Survey Plans
KASALI & ORS v. SANNI & ORS (2017) LPELR-51065(CA)
A composite plan as the name implies is usually drawn by the super imposition of at least two plans filed and or tendered by opposing parties. It is where the two sides file plans which do not match that it becomes the duty of the plaintiff to file a composite plan to show the relative positions of the area of land claimed by both himself and the defendant. See Bankole V Pelu (1991) 8 NWLR (Pt 211) 523, 550 and Bankole V Dada (2003) 11 NWLR (Pt 830) 174, 224. There may also be situations in which a defendant needs to file a composite plan as was held by the Supreme Court in Elias V Suleiman (1973) 12 SC 113. A composite plan is also useful in linking a piece of land presently in dispute with a piece of land that was the subject of litigation in a previous suit as was done in Obineche V Akusobi (2010) All FWLR (Pt 533) 1839, 1859. It may also be deployed where the original title documents failed to fully prescribe the parcels of land allegedly allocated to the disputants – Eholor V Osayande (1992) 6 NWLR (Pt 249) 524, 536.” Per JOSEPH EYO EKANEM, JCA (Pp 25 – 26 Paras F – E)
ONI & ORS v. OMOFADE (2016) LPELR-50053(CA)
“On the other hand, as the respondent set up his own case that the disputed parcel of land is the same as the parcel of land litigated in suit No.ID/479/89, he had the onus to prove the assertion. For it is elementary that he who asserts must prove. Therefore the respondent had the burden to produce in evidence a composite plan showing the parcel of land in dispute in suit No.ID/479/89 is the same as the parcel of land in dispute in suit No.ID/10/2010 vide Elias v. Suleimon (1973) A.N.L.R. 217 at 928 thus- “In view of this and his later observation that he had not the necessary composite plan before him (which is clearly the duty of the defendants/respondents to provide), it is quite clear that the 3rd defendant/respondent had also failed to prove conclusively that the land bought by him and in support of which he had produced the purchase receipts (Exs. 21 and 22), formed part of the land claimed by the plaintiff/appellant.” Per JOSEPH SHAGBAOR IKYEGH, JCA (Pp 16 – 17 Paras E – C)
