His Highness, Alhaji A.G. Momoh & Ors v. His Highness, Alhaji I.M. Umoru & Ors

I have had the opportunity before today of reading in draft the judgment of my learned brother Galadima, JSC, which has just been delivered I entirely agree with him that this appeal is devoid of merit justifying its dismissal.

Although as many as 6 issues for the determination of the appeal were distilled from the grounds of appeal filed by the Appellants in this simple land dispute between two neighbouring communities, the leaned trial Judge after very carefully examining the evidence placed before him by the disputing parties came to the right conclusion, in my view, when he said at page 248 of the record –

“The issue for determination therefore in this case is, which of the two communities i.e. the Plaintiffs or the Defendants own the land in dispute in this case. The parties being different communities the determination of the boundary between the Plaintiffs and the defendants is the hurdle for the determination of ownership of the land in dispute in this case.”

Therefore, the finding of the trial Court in favour of the Defendants was clearly based on the evidence before that Court and as such the affirmation of that decision on appeal by the Court below is quite in order. I see no reason at all to disturb these concurrent judgments of the two Courts below. Accordingly, I also dismiss the appeal and affirm the judgments of the courts below with N50,000 00 costs in favour of the Respondents.

P.19

This is an appeal against the concurrent findings of both the trial High Court and the Court of Appeal in which it was found that the appellants have failed to prove the ownership of the land in dispute in this case. The trial High Court in its judgment found as follows at pp 259 per Sadoh, J.

“On the issue of acts of ownership, the plaintiff said that it is true to say that all the buildings on Sabo are owned by Iyakpi people. That there is no grant of any land in Sabo by the Otaru of Auchi to any Iyakpi man. The 4th Pw also said that Iyakpi village is located between Auchi and South Ibie, though he said Iyakpi is in South Ibie. He stated further that before the construction of Agene Bode road, any person going from Auchi to Ibie Nafe will follow a foot path and he will get to Iyakpi before going to Ihie Nafe. That Igakpi is still in the place where they settled originally. The plaintiffs also admitted that Ikhaubele primary school was built by the people of South Ibie.

P.42

The defendants, on the other hand, said that the houses they built at Sabo are about N1,000 and that they farm on the vacant land.
In the light of all have reproduced above, I find as a fact that the plan Exhibit A filed by the plaintiffs did not represent the correct position of things on the ground, especially with respect to the positions of Iyakpi as a boundary neighbour to Auchi. In this regard, I do not believe that the boundary between the plaintiffs and the defendants is correctly reflected in Exhibit A.
I also find as a fact that the numerous acts showed in the area in dispute as buildings and farms are acts of ownership properly exercised by the defendants within the land in dispute”.

Finally, on page 258, the trial court concluded thus:-

“Finally, in the light of my findings above, I hold that the case of the defendants is more probable than that of the plaintiffs when the evidence adduced in the case on either side put on an imaginary scale laid down in the case of A.P. Mogaji & Ors. v. Rabiatu Odofin & Ors (1978) 4 SC 91. On the whole the plaintiffs claim fail in its entirety and same is accordingly dismissed with cost which I assessed at N1,000.00 in favour of the defendants”.

On appeal to the Court of appeal, hereinafter called the lower court, the findings of the trial court were affirmed. The lower court in its judgment held as follows:-

“The findings of the fact made by the learned trial judge based on both oral as well as documentary evidence cannot be faulted. It is my view that the evaluation of evidence by the learned trial Judge is not perverse. It is the primary duty function of the trial court which saw and heard the witnesses to assess the credibility of those witnesses and to believe or disbelieve any of them.

P.43

I therefore agree with the submissions of learned counsel for the defendants that there was evidence to support the findings of the learned trial Judge who made a correct assessment of the evidence before ………… By their own admission in paragraph 20 of the Amended Statement of Claim and the evidence which the plaintiffs conceded that compensation was also paid to the defendants for crops destroyed by Dumez, a construction company that construed Benin/Auchi/Okene road and the establishment of the Ekhaviela Primary School, Iyakpi, south Ibie known in 1944 as south ibie Native Authority which was later renamed Etsako District council school, south Ibie in 1955 and then as Local Authority Primary School in 1958 all these being positive and numerous acts of ownership and possession of land in dispute left the learned trial judge in no doubt that title could not be declared in plaintiffs’ favour. The complaint that the learned trial judge, not being a surveyor, cannot examine the survey plan and Exhibit A and criticize same to my mind is a non-issue and does not amount to a legal submission. Exhibit A being part of evidence adduced must be subjected to scrutiny like any other evidence before any evidential value can be placed on it by the trial judge. Lastly, any decision on an enquiry into boundary dispute in which the plaintiffs took part is conclusive and operates as res judicata. See Nwabia v. Adiri & 3 ors. (1958) 3 FSC 112. Since Exhibits C, D, E and 4 were already in existence when the then Bendel State Government appointed Justice J.A. Obi’s commission of inquiry to among other things.
” ……….as certain and determine the boundary between the two communities or towns and between Auchi on the one hand and each of the other surrounding towns with which Auchi has common boundary on the other hand”.

P.44

‘This commission of inquiry presented the appellants with a golden opportunity to produce theses exhibits and any other evidence that showed the boundary between the plaintiffs and the defendants. In conclusions I resolve all the issues canvassed in the appeal against the appellants”. It is against the above findings that the appellants have appealed to this court.

The plaintiffs in their further amended statements of claim claimed against the defendants as follows:-

a) A declaration that in accordance with Auchi customary Law and traditions the plaintiffs, the people of Auchi, are the persons vested with all existing rights to the use on and occupation of all that piece of land lying and situate at Auchi in the Etsako Local Government Area of Bendel state and within the juisdiction of this Honourable Court and verged pink in plan no 1902, filed herewith (the said land though well known to the defendants is as shown).
b) A declaration that the plaintiffs, the people of Auchi or Auchi community by virtue of Auchi customary Law and tradition, are the persons entitled to the customary and/or statutory right of occupancy in respect of the said piece on Parcel of land
c) An order of perpetual injunction restraining the defendants whether by themselves, their servants, agents or any person claiming through or under their or howsoever from entering, re-entering or trespassing upon the said piece or parcel of land in purported exercise of any right in relation to the possession of land or use and occupation of the land or any part thereof in derogation of the plaintiffs vested right or interest therein.
d) Additionally, the plaintiffs seek forfeiture or declaration of forfeiture by the defendants of the area of plaintiffs land (Sabo quarters) occupied by the defendants with the permission or tacit permission of the plaintiffs before dispute arose between the parties and by reason of defendants claim of title thereto and denial of the plaintiffs title”.

P.45

Parties then called their respective witnesses in support of their case, at the end of which the plaintiffs case was dismissed also the appeal to the lower court was dismissed, this led to this appeal in this case.

In accordance with the rules of this Court, both parties filed and exchanged their briefs of argument. The appellants in their Brief of argument dated 25/2/05 formulated six issues for determination as follows:

“1) Was the lower court right when it upheld the judgment of the learned trial Judge and held that the evaluation of evidence by the learned trial Judge was not perverse? (Ground 1)

2. Whether the lower court was right when it agreed with the learned trial Judge that the traditional histories pleaded and given in evidence by the parties as to the point of arrival and from where the parties migrated are conflicting. (Ground 2).

3. Whether the lower court did not misdirect itself when it held that the learned trial Judge was right in his criticism of Exhibit “A”. (Ground 3)

4. Was the lower court right when it upheld the trial court’s decision that the Justice Obi’s Commission of Enquiry Report on the boundary between the parties in this appeal was binding on the appellants? (Ground 4)

5. was the lower court right when it upheld the learned trial Judge’s finding that title to the land in dispute could not be declared in the appellants’ favour because the payment compensation to the respondent by Dumez and the establishment of Ekhabhele Primary School, Iyakpi and Possession of the land in dispute by the respondents. (Ground 5).

6. Was the lower court right in upholding the judgment of the trial court? (Grounds 6 and 7).”

The respondents’ counsel in his brief of argument dated 20/8/2008 formulated only one issue for determination thus:-

“Whether the learned Justices of the Court of Appeal were right in law and on the facts in holding that the appellants failed to prove their case at the court of first instance”

P.46

At the hearing, the learned senior counsel to the appellants adopted his brief of argument and urged this court to allow the appeal. In his brief of argument, the learned senior counsel argued his issue Nos. 1, 2, 3 and 6 together, and argued issue Nos. 4 and 5 distinctly. On his first set of issues for determination, learned senior counsel submitted that the lower court was wrong in the approach it adopted in deciding the issues raised before it, as it failed to consider the issues raised by the appellants. Counsel referred to the averments in his pleading on traditional history and contended that the Auchis’ who are of Benin stock arrived during the time of Ozemua, Oba of Benin in 1500 A.D. before the arrival of the defendants he also referred to Exhibit H, H1 – H4 which he said are un-doctored works of foreigners. He contended that historical works of such intelligent reports cannot be wished away by a stroke of the pen, he cited the case of Ojo V. Adejobi (1978) 11 NSCC 147 at 160. He further submitted that in view of these Exhibits there is no further need to have looked for evidence of recent possession of the land in dispute before granting the declaration sought, he relied on the case of U.B.A & Anor V. Agwuncha & Ors (1976) 6 SC. 83/85; Awoyale V. Ogunbiyi (1986) ANLR 442. Learned counsel referred to the evidence of Pw1, a licenced surveyor, who tendered Exhibit A which showed clearly the ancient foot-path linking Auchi through lgbei village, Auchi to ibie Nafe South line and the mound or heap marks the traditional boundary between the two communities. He therefore submitted that the conclusion by the trial Judge that the traditional histories pleaded and given in evidence by the parties to this suit are conflicting and perverse and arose from the improper evaluation of the evidence led in the case. And the lower court, counsel continues, was in great error when it affirmed the decision.

P.47

The learned senior counsel further submitted that the criticism of Exhibit A by the learned trial Judge is unbounded, that the mere use of the word “encompass” cannot derogate from the vivid description given by the pleading. Learned counsel then submitted that the lower court fell into the same error to properly re-evaluate the evidence led before affirming the evidence adduced at the trial court. This court is therefore entitled to re-evaluate and set aside the concurrent findings of the two lower courts, he relied on the case of Okoya V. Santilli (1994) 4 NWLR (Pt. 338) 256 at 302

On his 4th issue for determination learned senior counsel pointed out that the Justice Obi’s Commission of Inquiry was set up after the commencement of this suit and the recommendation of the commission that any person aggrieved could pursue existing land claims in court, and thus submitted that as a result the commission’s recommendation could not constitute res judicata and therefore not binding. A document cannot create a right and at the same time foreclose the right.

On the issue No. 5, learned senior counsel submitted that the learned trial Judge relied heavily on the acts of possession which according to him was given copiously by the respondents’ evidence this was done without taking into consideration the circumstances under which such brazen acts of possession were committed and also without taking into consideration the most relevant and legally acceptable acts of possession as given by the appellants, these include the building of Etsake Native Authority school in 1944 on Auchi land. That Iyakpi people were squatters and the wrongful allocation of land to strangers and the fact that the Otaru of Auchi was the district head of Auchi District from 1920 – 1950 which encompass the respondents.

P.48

The learned counsel pointed out that the compensation paid to the respondents by Dumex was only in respect of the crops and not on the land Learned counsel then concluded that the totality of the above ex-rayed acts of possession claim by the respondents, those acts of possession of the land in dispute, excluding Sabo enclave were made by the respondents against very strong protest by the appellants.

The learned senior counsel to the respondents adopted his brief of argument, at the hearing before us, and urged this court to dismiss the appeal. In support of the sole issue for determination, he contended that the concurrent findings of the two lower courts on the issue of ownership of the land in dispute was clearly made, he then submitted that the court below was right in dismissing the appellants’ appeal.

The appellants in the trial court failed to prove their case, having failed to discharge the burden of proof placed on them by Section 135 (1) (2) of the Evidence Act. Learned counsel further submitted that the decisions appealed against are concurrent findings of the two lower courts and this in a plethora of cases courts held that they will not interfere with concurrent decisions of the two lower courts unless and until the decisions are perverse, he cited the following case.

Oloko Tunji V. Sarumi (2002) 7 SC (Pt. 1) p. 152, counsel pointed out that the lower court held that the findings of the learned trial Judge could not be faulted. It was his further contention that in order to invite this court the appellants must show that the decision is perverse.

P.49

In the instant case, the evidence put before the court of trial did not establish the claim, it is therefore the appellants’ contention that the finding of the trial court does not in any form, run counter to the evidence proffered, the trial court did not take into consideration any extraneous matters and there is certainly no miscarriage of justice, he relied on the case of Owu V. Idu (2006) 6 SC. 58 at 76. The case being a claim for declaration of title to land, the appellant has to comply with the principles enunciated in the case of Idudun V Okumagu (1976) 9 10 SC. 227 at 246. He therefore submitted that the appellants woefully failed to prove any of the points stated in Idundun V Okumagba (Supra).

I have earlier set out the concurrent findings of the two lower courts and I have equally set out the submissions of the two learned senior counsel to the parties in some details in this case, it is my view that central to the determination of this appeal is the determination of the issue formulated by the learned senior counsel to the respondents, and I will adopt same as the relevant issue for determination in this appeal. Learned senior counsel too the appellants have forcefully submitted that the lower court erred in law in affirming the findings and decision of the trial court.

He predicated his submission on the alleged failure of the lower court to consider the evidence adduced before it and the pleadings on the facts on which issue were duly joined. Particularly it was the contention of the learned senior counsel that the trial court failed to consider the fact that the Auchi people were the first to settle on the disputed land and with this position any acts of possession exercise by the respondents would be at the behest of the appellants protests the alleged acts of ownership exercised by the respondents on the land in dispute. Learned counsel also pointed out that the Otaru of Auchi was the District head between 1920 – 1950 and the respondents were part of the district.

P.50

Learned counsel criticized the findings of the lower court that the reports of Justice Obi commission of inquiry on the land in dispute is binding on the parties.

As I have pointed earlier in this judgment, this appeal is against the concurrent, findings of the two lower courts for this court to interfere the appellants must show that:

a). That the decision is either erroneous or perverse
b). That there is a miscarriage of Justice, and
c). There exists special circumstance to warrant the interference.

See the following cases:

(i). Lakoy v. Olojo (1983) 2 SC NLR 121 at 131- 132
(ii). Ojomu v. Ajao (1983) 2 SCNLR 158/168,
(iii). Ibrahim v. Shagari (1983) 2 SCNLR 176 at 201,
(iv). Sobakin v. The State (1981) 5 SC 75,
(v) Okoya V. Santili, (1994) 4 NWLR (pt.338) 256 at 3o2, and
(vi). Olokotinti V. Sarumi (2002) 7 SC (pt. 1) 152.

It is also trite that a finding is said to be perverse when it runs counter to the evidence and pleadings or where it has been shown that the trial Judge took into consideration/account matters which ought not to have been taken into account or shuts its eyes to the evidence or when it has occasioned a miscarriage of justice. See Onu V. Idu (2006) 6 SC at 78. Also where there are concurrent findings of fact by two courts, namely the High Court and the Court of Appeal, this court will not allow such question to be reopened unless and until there are particular circumstances dictating otherwise e.g. if the finding of fact is not justified by the evidence or by the surrounding circumstances of the particular case. I refer to Lukoyi V. Olojo (supra) at p. 131, Kale V. Coker (1952) 13 SC; 252, Okolo V. Uzoka (1978) 5 SC. 77 at 86.

P.51

In the instant case, I have carefully gone through the judgment of the trial court, and I have found that the trial court considered all the evidence adduced before it by the parties vis-a-vis the pleading before arriving at its judgment. All the issues raised and joined by the parties were all considered. It is my considered view therefore that the lower court was right when it held as follows:-

“The findings of fact made by the learned trial Judge based on both oral as well as documentary evidence cannot be faulted. It is my view that the evaluation of evidence by the learned trial Judge is not perversed”.

The appellants have not shown where the findings of the trial court could be said to be perversed or based on extraneous facts. Once a finding of fact by a trial court is supported by evidence an appellate court will be reluctant and slow to upset it. I am fortified by the decision in the case of M. EGRI V UPERI (1973) 11 SC 299 at p. 310. It is clear that the appellants have not shown any reason why this court should interfere with the concurrent findings of the two lower courts.

I was privileged to have had a preview of the illuminating lead judgment of my learned brother Suleiman Galadima, JSC just delivered and I entirely agree with his Lordship’s reasoning and conclusions. In fact I adopt them with respect as mine.

For the reasons he adumbrated in the lead judgment I too hold that this appeal is, fortunately or unfortunately, devoid of any merit. It deserves to be dismissed, it is dismissed by me. The decision of the court below, in which it affirmed the findings of the trial court, is affirmed. I also endorsed the orders as to costs awarded to the respondent in the lead judgment.

Appeal is dismissed.

P.52

I was privileged to read in draft the judgment just delivered by my learned brother S. Galadima, JSC. My learned brother considered the issues formulated for determination exhaustively and I agree without reservation with his reasoning and conclusion. I however wish to elaborate on the points raised and considered by him by way of emphasis.

This appeal came before the High Court of Edo State, Auchi Judicial Division by way of re-hearing on 7/9/72. In paragraph 27 of the 3rd Further amended statement of Claim as reproduced on pages 172-173 of the Record of Appeal, the plaintiffs now appellants before this court claimed as follows:-

a. Declaration that in accordance with Auchi customary Law and Tradition, the people of Auchi are the persons vested with a existing right to the use and occupation of all that piece or parcel of land lying and situate at Auchi. In the Etsako Local Government of Bendel (now Edo) State and within the jurisdiction of this honourable court and verged pink n plan No LSF 1902 filed herewith (The said and though well know to the defendant is as shown).

P.53

b. A declaration that the plaintiffs the people of Auchi community by virtue of Auchi customary Law aid Tradition are the persons entitled to the customary and/or Statutory Right of Occupancy in respect of lie said piece or parcel of land.
An order of perpetual injunction restraining the defendants by themselves their servants, agents or any other person claiming through or under them or whomsoever from entering, re-entering or remaining upon the sad piece or parcel of land in purported exercise of any right in relation to the possession use and occupation of the and or any pan thereof in delegation of the plaintiffs’ vested rights or interests therein.
d. Additionally, the plaintiffs seek forfeiture or declaration of forfeiture by the defendants or the area of plaintiffs land (Sabo quarters) occupied by the defendants with the permission or tacit permission of the plaintiffs before dispute arose between the parties and by reason of defendants’ claim of title thereto and denial of the plaintiff’s title.

P.54

In a considered judgment of the trial court delivered on 16/2/94, the plaintiffs/appellants claims were dismissed. The plaintiff/appellants being aggrieved by the decision of the trial court proceeded to the court of appeal Benin Division where they identified six issues for determination while the respondents raised four issues.

The court of Appeal in the judgment delivered on 19/1/00 at page 445 of the Record lines 10-15 held after a meticulous consideration of the issues raised for determination in the appeal that-

“The findings of fact made by the learned fiat judge based on both oral as well as documentary evidence cannot be faulted.

The learned trial Judge had said in his judgment at page 257 lines 25 – 30 of the record that-

“Finally in the light of my findings above, I hold that the case of the defendant is more probable than that of the plaintiffs when the evidence addressed in the case on either side (sic)put on an imaginary scale as laid down in the case of A.R. Mogaji & other v. Odofin & Others (1978) 4 SC 91.

The Court of Appeal obviously agreed with the trial court that the plaintiffs/appellants failed to discharge the evidential burden of proof placed on them under section 135(1) and (2) of the evidence Act. This decision prompted the plaintiffs/appellants to further appeal to this court.

The plaintiffs/appellants raised six issues for determination as follows

1. Was the lower court right when it upheld the judgment of the learned trial Judge and held that the evaluation of evidence by the learned trail was not perverse?
   2 Whether the lower court was right when it agreed with the learned trial judge that the traditional histories pleaded and given in evidence by the parties as to the point of arrival and from where the parties migrated are conflicting.

P.55

Whether the lower court did not misdirect itself when it held that the learned trial Judge was right in his criticism of Exhibit A.

4. Was the lower court right when it upheld the trial court’s decision that the justice Obi’s commission of inquiry Report on the boundary between the parties this appeal was binding on the appellants?

5. Was the lower court right when it upheld the learned trial judge’s finding that title to the land in dispute could not be declared in the appellants’ favour because the payment of compensation to the respondent by Dumez and the establishment of Ekhvabele Primary School, Iyakpi were positive and numerous acts of ownership and possession of the land in dispute by the respondents?

6. Was the lower court right in holding the judgment of the trial court?

The respondents formulated a lone issue as follows-

“Whether the learned Justice of the court of appeals were right in law and on the facts in holding that the appellants failed to prove their case at the court of first instance.”

The gravemen of the plaintiffs/appellant’s claim before of the trial court is for declaration of title to the portion of land which is the subject-matter of the dispute. Whereas the bone of contention in the issues for determination in the appeal before this court is the evaluation and findings of facts of the learned trial judge which the lower court affirmed.

Where a judgment of the trial court is attacked on the ground of finding or non-finding of facts or evaluation of facts the court of appeal will seek the following-

a. The evidence before the trial court
b. Whether it accepted or rejected any evidence upon the correct perception

P.56

Whether it correctly approached the assessment of the value on it
d. Whether it used the imaginary scale of justice to weigh the evidence on either side.
e. Whether it appreciated upon the preponderance of evidence which side the scale weighted having regard to the burden of proof.

Daramola v. A-G Ondo State (2000) 7 NWLR (Pt.665) pg.400; Agbonifo v. Aiweroba (1988) 1 NWLR (pt.70) pg.325; MSR (Nig) Ltd. v. Ibrahim (1975) 5 SC 55; Egonu v. Egonu (1978) 11-12 SC Pg111.

A trial Judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or misapplied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case and then proceed to resolve them. His duty is to each a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law.

Bonnu Holdings Ltd. v. Bogoco (1971)1 All NLR 324

Adoniyi v. Adeniyi (1972)4 SC 10

Shodeinde v. The Registered Trustees of the Ahmadiyya Movement-In-Islam (1933) 2 SCNLR 234

Adeleke v. Iyanda (2001) 13 NWLR 729 Pg.1.

Civil cases including declaration of title to land are decided on balance of probabilities. Before a judge comes to a decision as to which evidence he accepts and which evidence he rejects, he should first of all put the totality of the evidence adduced by both parties on each side of the imaginary scale.

P.57

He will then assess which is heavier, not by the number of witnesses called by each party but the quality or the probative value of the testimony of those witnesses.

Mogaji v. Odofin (1978) 4 SC 91; Mogaji v. Cadbury (Nig) Ltd. (1985) 2 NWLR (pt.7) pg.393; Adeleke v. Asani (1994) 1 NWLR (Pt.322) pg.536; Okoko v. Dakolo (2006) 14 NWLR (Pt.1000) pg.401; Elewuju v. Onisaadu (2000) 3 NWLR (Pt.647) pg.95.

On the other hand, what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test whether the plaintiff has been able to prove to the satisfaction of the court that he has a better title than the defendant. Thus, the standard or proof in a claim for declaration of title is not different from that which is required in civil cases generally. The only difference rests on the fact that the burden of proof is on the plaintiff and it never shifts to the defendant throughout the trial.

I agree with the reasoning of the learned trial Judge where he concluded that-

“The issue for determination therefore in this case is; which of the two communities i.e. the plaintiffs or the defendants own the land in dispute in this case. The parties being different communities the determination of the boundary between the plaintiff and the defendants is the hurdle for the determination of the ownership of the land in dispute in his case.
Pg.248 of the Record.

In the Court of Appeal, the learned justice observed that-

“this appeal will be decided on whether the plaintiffs/appellants proved exclusive possession of the land in dispute and the boundaries thereof.”

P.58

Pg.434 lines 16-19 of the Record of Appeal

Furthermore, at page 443 lines 45-50, the court said that-

“What is important in this case is the extent of the area of occupation of each community.”

The lower court also said at Pg.444 lines 7-13 of the Record that-

“The parties being different communities the determination of the boundary between the plaintiffs and the defendant is the hurdle for the determination of the land in dispute in this case.

I must emphasize at this junction that what are of paramount importance to prove the land in dispute is not the genealogical background of the communities but

a. The extent of the area of occupation of each community
b. The determination of the boundary of the plaintiff/appellants and the respondents
c. Whether the plaintiff/appellants proved exclusive possession of the land in dispute
d. The extent of the land in dispute

The learned trial judge observed that the mere fact that the parties and all other communities in their neighbourhood acquired their respective lands by settlement is a convenient platform to launch the claim of the parties to the land in dispute.

In a claim for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must satisfy the court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought.

Gbadamosi v. Duro (2007) 3 NWLR (Pt.1021) pg.282; Dada v. Dosunmu (2006) 18 NWLR (pt.1010) pg.134; Onisaaodu v. Elewuju (2006) 13 NWLR (Pt.998) Pg.517; Ajiboye v. Ishola (2006) 13 NWLR (Pt.998) pg. 628; Otanrma v. Youdubagha (2006) 2 NWLR (Pt.964) Pg.337 Dike v. Okoloedo (1999) 10 NWLR (Pt.623) Pg.359; Eze v. Ataosie (2000) 6 SC (pt.) Pg.214; Elema v. Akenzua (2000) 6 SC (Pt.111) Pg29-30; Imama v. Akpe-Ime (2000) 7 SC (Pt.11) pg.24 at 30-31.

P.59

The claim of the plaintiff/appellants is principally declaration of title to a dispute land. There are five accepted ways of proving or establishing title to or ownership of land as follows-

1. Traditional evidence of history.

2. Production of documents of title duly authenticated in the sense that their due execution must be proved by positive acts of ownership extending over a sufficient length of time.

3. By acts of long possession and enjoyment of land

4. 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. It is trite law that the establishment of one of the five ways is sufficient proof of ownership.

Idundun v. Okumagba (1976) 9 -10 SC Pg.337; Ayoola v. Odofin (1984) 11 SC Pg.120; Ewo v. Ani (2004) 17 NSCQR 36; Ndukaba v. Izundu (2007) 1 NWLR (Pt.1016) pg.432; Adeniyi v. Anwase (2006) 12 NWLR (pt993) pg.163; Nkwo v. Iboe (1998) 7 NWLR (pt.558) pg.354; Nkado v. Obiano (1997) 5 NWLR (Pt.503) pg. 31 at Pg.34; Adesanya v. Aderounmu (2000) 4 SC (pt.11) pg. 18; Piaro v. Tenalo (1976) 12 SC 31; Mogaji v. Odofin (1978) 4 SC 91.

The parties relied on the custom of their respective community and traditional history to establish their title to the land in dispute.

Evidence of traditional history is one of the five accepted methods of establishing title to land

Oyadare v. Keji (2005) 7 NWLR (Pt.925) pg. 571; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) pg.1; Idundun v. Okumagba (1976) 9-10 SC Pg.337

Where the plaintiffs/appellants and respondent anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial court is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier.

P.60

That was exactly what the learned trial judge did when he came to the conclusion at page 257 lines 25-30 of the Records that-

“Finally, kin the light of my findings above, I hold that the case of the defendant is more probable than that of the plaintiffs when the evidence adduced in the case on either side is put on an imaginary scale as laid down in the case of Mogaji v. Odofin.”

The parties gave evidence about their communities and the land in dispute and particularly the boundaries and numerous acts of possession and ownership on the land in dispute, where they migrated from to settle at their present site and when.

The plaintiffs/appellants gave evidence in respect of boundaries with the respondent and other neighbouring communities like people of Warrake and lybiano to the West, Aria to the North, Jattu to the North-East and Ugioli (Aviele) to the south. The testimony is that the land is encompassed by Auchi land- to the West, Auchi Polytechnic land, Igbei quarter of Auchi and Otaru Grammar School to the far North.

The witness called by the plaintiffs/appellants PW1-PW4 gave evidence of the traditional boundary marked by a mound in which an albino was buried along a footpath. This was reflected in a survey may tendered by the plaintiffs/applicants as Exh. A. The mound is regarded as the traditional boundary between the two disputing communities.

The plaintiffs/appellants tendered and relied on Exhibit C which is the boundary documents between Auchi and Uzairue made by District Officer Spottiswood and Exh. D: a boundary document between Aviele and Auchi produced by another District Officer Mr. S.J. Henry.

P.61

Exh. E-E1 – Mr. D.O. Denton’s Intelligent Report

Exhibit G -A short history of Benin by Dr. Jacob Egbarevba at page 86 indicating that the founder of Auchi came from Udo Ovia Local Government Area of Benin Kingdom. Exh. H the Political Intelligence Report on Uzairue clan by a District Officer Mr. J.H. Blair. When Auchi people noticed that the respondents were encroaching more and more on their land also alienating portions to strangers, the plaintiffs/appellants protested to the government and three commissions of inquires were set put namely Obanor, Ogbetuo and Olulo commission of Inquires. They did not complete their assignment. Another book, a short history of South Ibie written by Mr. B. Omo akede was tendered as Exhibit F. The Justice Obi Commission of Inquiry was also set up to neigbouring communities – Jattu, Warrake, Ivbiara, Aviele and now with South Ibie. The white paper on the Obi Commission of Inquiry was tendered as Exhibit L.

The respondents gave evidence of their ancestry-when the clan settled in their present community, their boundaries with the appellants and their acts of ownership on the land in dispute. The respondents claimed that the land in dispute is occupied by the Iyakpi community and any other person on the land is a tenant of Iyakpi community Exh. D. shows that Auchi people have their own land so also Iyakpi people. Most of the hosues at Sabo are owned by Iyakpi people. The traditional boundary between South Ibie and Auchi is located at the foot of a red hill in the Polytechnic on the old Auchi-Agbede road – which is quite distinct from Benin-Auchi-Okene road. The red hill is by the valley runs across the Polytechnic auditorium and it has the ancient foot path leading to the neighbouring Warrake village. At a spot in the valley-there is a mound with rocks where an albino was buried.

P.62

The place marks the boundary between South Ibie and Auchi. The boundary runs through the bush to cut across the express road from Auchi to Okene to connect the boundary with Jailu people. It runs on the opposite side to link up with the Old Auchi-Agbede road up to mile 70. This description tallied to some extent with page 4 of Exhibit L – the Obi Boundary Commission Report. The people of South Ibie were compensated for their crops when the Polytechnic was built and during the construction of Benin-Okene road by Dumez Contraction Company. Part of the land in dispute was acquired by the defunct Bendel State Government in 1985. The respondents filed a survey plan admitted in evidence as Exhibit Q. The respondent’s emphasized that Auchi and South Ibie are two neighbouring clans, while the area referred to as Sabo is on South Ibie land and not on Auchi land.

The primary duty placed on a plaintiff who comes to court to claim a declaration of title to land is to show the court clearly the area of land to which his claim relates so that the land can be identified with certainty. The plaintiff has to prove title to a defined area to which the declaration can be attached. Where the land being claimed is contained in a survey plan, it must show clearly the dimensions of the land, the boundaries and other features.

Gbadamosi v. Dairo (2007) 3 NWLR (Pt.1021) Pg.282

Dada v. Dosunmu (2006) 18 NWLR (Pt.1010) Pg 134

Ogedengbe v. Balogun (2007) 9 NWLR (Pt.1039) Pg.380

Adedusola v. Akinde (2004) 12 NWLR (Pt.887) Pg.295

Okochi v. Animkwoi (2003) 18 NWLR (Pt.851) Pg.1.

Moreover where an action is for declaration of title to land,and an injunction over a piece of land, the onus lies on the plaintiff or applicant as the case may be to show clearly the area of land in dispute.

Sowa v. Amachree (1933) 11 NLR 82

Udofia v. Afiza (1940) 6 WACA 216

Odicha v. Chigbogwu (1994) 7 NWLR (Pt.354) Pg. 78.

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Both parties testified that the boundary mark between them is a mound in which an albino was buried. The only point of disagreement however is the location of the mound. Exh. A, the appellants’ plan showed that the amount is located along an old footpath.

But DW2, the surveyor who prepared Exh. Q, the plan of the respondents said that

“I see the pots on the albino mound but do not know is an old footpath where the boundary between eth plaintiffs and the defendants is. If I have seen a footpath I would have shown it on Exhibit Q.”

The evidence of both parties however show a disagreement as to the exact location of the boundary and its extent in Exhibits A and Q – the survey plans of both sides and the oral testimony of the witnesses. The pleading of the plaintiffs/appellants is at variance with eh plan. As the plan Exh. A did not show that the land in dispute is encompassed by Auchi land.

The plaintiffs/appellants put the area in dispute in the survey plan Exh. A as 280 383 hectares. The area excluded the area occupied by Auchi Polytechnic whereas the respondents put the area in dispute as 548.97 hectares in their survey plan Exh. Q which includes the area occupied by Auchi Polytechnic minus the staff quarters. Sabo quarters is reflected as 10% of the area in dispute on Exh. A.

The learned trial judge rightly observed that the traditional histories pleaded and given in evidence by the parties conflicted on the boundary between them. The learned trial judge concluded at page 254 of the Records lines 17 – 30 that-

“In the light of all I have reproduced above, I find as a fact that the plan Exh. A filed by the plaintiffs did not represent the correct position of things on the ground, especially with respect to the positions of Iyakpi as a boundary neighbour to Auchi.

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In this regard I do not believe that the boundary between the plaintiffs and defendants is correctly reflected in Exh. A. I also find as a fact that the numerous acts shown in the area in dispute such as farms are acts of ownership properly exercised by the defendants within the land in dispute.

The Court of Appeal at pg. 445 lines 10 – 15 of the Record of Appeal had this to say-

“The findings of fact made by the learned trial judge based on both oral as well as documentary evidence cannot be faulted.”

Where and when the issue of evaluation of evidence is at stake – it is only where and when the trial court fails to evaluate such evidence properly or at all that a court of appeal can intervene and itself re-evaluate such evidence, by way of re-hearing as if it were a trial court.

The plaintiffs/appellants’ counsel gave a catalogue of the alleged shortcomings in the case of the respondents. My brisk answer to this is that in the base for declaration of title, a plaintiff has the burden of proving his case upon the strength of his own evidence and cannot rely on the weakness of the defendant’s case. The plaintiffs/appellants cannot take advantage of any evidence by the defence which supports their case when their case suffers the fundamental defect of not showing precisely the identity of the land in dispute by not ascertaining the boundaries. It is basic that where a plaintiff claims a declaration of title to land and fails to give the exact extent and identity of the land he is claiming his action should be dismissed. This is a condition precedent sine qua non to the success of the claim.

Gbadamosi v. Daiso (2007) 2 NWLR (Pt.1021) Pg. 282 SC

Dada v. Dosunmu (2006) 18 NWLR (Pt.1010) Pg. 134

Aribe v. Asanlu (1980) 5 – 7 SC Pg. 78

Adeniran v. Ashabi (2004) 2 NWLR (Pt.857) Pg. 375

Otanma v. Youdubagha (2006) 2 NWLR (Pt.964) Pg.337.

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Moreover the appellants in the instant case had to succeed on the strength of their case because the responders had not set up a counter-claim. The burden on them is just to defend after the appellants must have discharged the burden placed upon them.

Kodinlinye v. Odu (1935) 2 WACA 336

Ayoola v. Odofin (1984) 2 SC 120

Dokubo v. Omoni (1999) 8 NWLR (Pt.616) Pg.647

Adelaja v. Alade (1999) 6 NWLR (Pt.608) Pg. 544

Ogun v. Akinyelu (1999) 10 NWLR 9Pt.624) Pg. 671

Akinola v. Oluwo (1962) 1 SCNLR Pg. 352

Exhibits K, L, L1 and J tendered by the respondents reveal that the government set up a Judicial Commission of Inquiry on 15/2/82 to look into community boundary dispute between the plaintiffs/appellants and the respondents. Exhibit L1 is the Government while paper on the report of Justice J.A. Obi Judicial Commission of Inquiry. The Commissions finding is that-

“The boundary between Auchi and South Ibie Iyakpi is the old Benin-Auchi-Jattu road starting from the point near Mile 70 on the said road running to Jattu, that is, road near the EDC School.”

The plaintiffs/appellants’ counsel regard the foregoing boundary as unclear and vague and cannot therefore be binding on the parties.

I cannot pinpoint any ambiguity in the foregoing boundary demarcation as the point near Mile 70 on Jattu Road, is the road near EDC School. The Justice Obi Commission made a consequential order relating to the interests in the lead which remain unaffected by the boundary demarcation. Any aggrieved party is advised to pursue existing land claims in court or file fresh claims.

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The learned trial Judge however emphasized in his decision that the Obi Commission of inquiry having been initiated by statutory authority, its decision is conclusive and same operates as Res Judicata The court relied on the case of George Nwabia v. Adiri & 3 Ors (1958) 3 FSC 112 where it was held at pg.114 that-

‘Any arbitrator or arbitrator or other persons or body of persons who may be vested with judicial authority to hear and determine particular dispute or class of dispute by consent of the disputants by an order of the court or by a provision of a statute is undoubtedly a judicial tribunal and its awards are as conclusive and unimpeachable as the decision of any of the courts of the realm.”

In short, the findings and decision of a commission of inquiry subject to the review of the government that set it up is binding on the parties. This is good law. The respondents contended that the decisions now appealed against are concurrent findings of the two lower courts, the trial court and the court of appeal.

The attitude of the Supreme Court to concurrent findings of fact of the two lower courts is that it will not disturb the findings of fact of both the trial court and the court of appeal unless-

a. Substantial error apparent on the face of the record if proceeding is shown
b. Such findings are perverse or not supported by evidence
c. Such findings were reached as a result of a wrong approached to the evidence
d. There was a wrong application of a principle of law or procedure.

The findings of fact of the two lower courts are not affected by any of the foregoing factors. Both courts agreed that the plaintiffs/appellants failed to discharge the legal and evidential burden of proof placed on them in their claim for declaration of title to the disputed land.

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This court agrees with this conclusion.

Enang v. Adu (1981) 11-12 SC pg.25;

Woluchem v. Gudi (1981) 5 SC Pg.291;

Ike v. Ugboaja (1993) 6 NWLR (Pt.301) pg.539;

Igwego v. Ezeugo (1992) 6 NWLR (pt.249) pg.561;

Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) pg.718;

Lamai v. Orbih (1980) 5-7 SC pg. 28;

Ige v. Olunloyo (1984) 1 SCNLR pg.158;

Olokotinti v. Sarumi (2002) 7 SC (Pt.1) pg.152

(2002) 13 NWLR (Pt.784) pg.307;

Madam Amachi Orisakwe & 2 Ors (2005) 1 SC (Pt.1) pg.35;

Samson Owie v. Solomon E. Igbiwi (2005) 1 SC (Pt.2) pg.16

With the foregoing and fuller reasons given in the lead judgment of my learned brother, I also agree that the appeal lacks merit and I hereby dismiss same. I abide by the consequential orders in the lead judgment including the order as to costs.

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