by Chioma Angela Okeke
ABSTRACT
Land disputes are prevalent across Nigeria; and they majorly take the form of interferences with ownership rights. The law recognises that these disputes are indispensable in every society and made provisions in form of statutes and case laws to handle such situations. So, an aggrieved person who intends to reclaim his ownership rights must initiate the process of accessing the appropriate courts for redress (or other alternative dispute resolution mechanism). The claimant can adopt one or more of the five ways of proving ownership of title to land but where he decides to rely on two of the ways and he fails in one, can he be allowed to rely on the second option. The Supreme Court answered in the negative, in that a claimant is not allowed to rely on acts of possession and ownership to back his claim for title to the land when evidence of tradition fails.
INTRODUCTION/FACTS OF THE CASE UNDER REVIEW
In Oba Jubril Bolaji Maranro suing for himself and on behalf of Maranro Family of Aho-Ogbada v Alhaji Salami Adebisi suing for himself and on behalf of Laage Family of Ira,[1] the Supreme Court was called upon to adjudicate over a matter that traversed three lower Courts — the Upper Area Court, Omu-Aran, Kwara State; the High Court of Kwara State, Omu-Aran, sitting in its appellate jurisdiction, and the Court of Appeal, and all three lower Courts found against the Appellant.
The Appellant, for himself and on behalf of Maranro Family, filed the Suit that led to this Appeal at the Upper Area Court, wherein he claimed that they, himself and other Members of the said Family, are the only persons entitled to “Certificate of Occupancy over the land situate, lying and being at Oyun Local Government Area of Kwara State” covering twelve Towns and Villages; and an Order of perpetual Injunction against the defendants, servants and privies, etc.
To prove his case, the Appellant testified as the Plaintiff, after he called fifteen Witnesses, and tendered nine documents admitted as Exhibits P.OOI — P.009. In its Judgment, the trial Upper Area Court reviewed all the evidence before it and concluded as follows in its Judgment:
We have noted that while the Plaintiff and his Witnesses could not tell who and how those villages were founded, the Defendant’s Witnesses gave us a clearer picture of the founder and how they were named. The Plaintiff did not tell us how the name of Aho-Ogbada, was derived while the defence said that “Aho’ is a place where animals ate soil, (in Yoruba land, a place where animals find clay soil to be tasty and they go there daily to eat the soil is called Aho). DW7 said Oba Oduoye gave names to other Villages in dispute. He said – “Bakin too was given to one Oqbomoso man called Oqunbakin by Onira Oduove”. That is to say the name Bakin was derived from the name of the said Ogbomoso man. “Oduove gave Onisapa Village to one man called Memudu Aweda, who used to grow a vegetable called Isapa”. Therefore, a man that plants Isapa was called Onisapa. As regards the Village, Afijagba, he said that it is between the two Villages, Oba Oduoye took part of Onisapa and Sanni-Ode to found Afijagba. As regards Sanni -Ode, PW7 said thus — “0duove gave Sanni-Ode to one man called Sanni, who was a hunter and an in-law to Labisi. How all other Villages derived their names are as recorded. Considering the evidence adduced before us, we have analysed the traditional evidence and found that although the Plaintiff is not solely relying on their evidence of tradition, their evidence of tradition is rather weak and scanty as submitted by the Defendant’s counsel. What we are to do now in the face of EXH. D.07 & D.08 is to determine the Party that had established a better title to those Villages – – – In the instant case, where title had been given to the Defendants by superior Courts and which Judgments are still subsisting, we wonder why the Plaintiff had adduced a very weak evidence of tradition. Therefore, because, according to the Plaintiff’s counsel, the Plaintiff is also relying on his evidence of tradition, which is considered weak, he has failed to meet the requirements of traditional evidence. He could not tell the Court how the disputed Villages were founded. We reject it and hold that the Defendant’s traditional evidence is more cogent, coherent, reliable, and acceptable. This is because our perusal of EXH. D.06 which was prepared in 1925 discloses that Irra was already over 200 years old and one of the oldest Towns in Yoruba land. It supports the Defendant’s traditional evidence. The entire EXH. D.04 is a record in respect of Offa Town and District. Villages such as Ipe, Irra, Igbosun, Ijagbo, Erin, Ilemona, Igbona areas, as well as Offa District, were seen in EXH. D.04 but Aho-Ogbada is not contained therein. This suggests that Aho-Ogbada had not been founded as at 1925 when Irra Village area was over 200 years old. Therefore, Irra must by history be the Overlord of the Villages around it. Therefore, we believe that it was the Defendant’s Laage Family that founded the lands in dispute…
The trial Upper Area Court also considered the other ways to establish his title relied on by the Appellant. On proof of title by acts of ownership, it observed:
It is interesting to note that two Mogajis, emerged from Onisapa Village i.e., PW8 and DW3 who testified for the Plaintiff and Defendant respectively. Since the evidence of Olowojoyin is still valid, we equally believe that of DW3 and reject that of PW3 – – All the Witnesses that claimed to be paying tribute to the Plaintiff agreed that they do not know the founders of these Villages. Their evidence appears to be by bargain. Inaja Maliki recognizes Inira as his Overlord. Plaintiff Witnesses from the disputed Villages all acknowledged the Plaintiff as their Overlord because he is their Tax Collector – – Collection of taxes cannot be regarded as an act of ownership. Therefore, the Plaintiff has failed to establish his act of ownership, and we so hold.
On proof of title by acts of long possession and enjoyment of land, it stated
We, having been satisfied that Irra should be older than Aho-Ogbada, and in the light of the subsisting Judgment of the High Court of Appeal, Omu-Aran, as affirmed by the Court of Appeal, the Defendant, who had been granted declaration of title over all the disputed Villages, has a better title. Therefore, the acts of long possession cannot stand in the face of the traditional evidence adduced by both Parties – – Possession cannot ground a claim for declaration. This proof fails and we so pronounce.
And on proof of possession of adjacent land in circumstances, which render it probable that the owner would also be owner of the disputed land, it held that:
A Declaration that the Defendant and other members of Laage Family, Irra, are the only people entitled to Certificate of Occupancy over Aho-Ogbada, in EXH. D07 have been made in a subsisting Judgment, and the Plaintiff has failed to prove a better title over Aho-Ogbada, the Plaintiff cannot be said to be in possession of any adjacent land. This proof is not established, and it fails as well.
The Appellant appealed to the High Court, sitting in its appellate jurisdiction, and in affirming the Judgment appealed against, the High Court concluded that:
There is nothing wrong when the trial Court said – – that evidence of Olowonjoyin of Onisapa and Jimoh Mogaji Afijagba are more authentic. No doubt, the trial Court was persuaded to have come to that conclusion by what are contained in Exhibit D.07 and since the Judgment remains subsisting, there is nothing wrong in law in doing so. The trial Court could not – – be accused of demolishing Appellant’s case before considering the totality of the evidence before it nor could it be accused for not seeing the demeanour of Abdulrahim Olowojoyin before relying on his evidence. We found no merit in the Grounds of Appeal and they are hereby dismissed. The Judgment of the trial Court is hereby affirmed.
Dissatisfied with the Judgment of the appellate High Court, the Appellant then appealed to the Court of Appeal, which held as follows in its own Judgment —
The two lower Courts below have found in the negative on this issue of fact of whether or not the Appellant was able to prove on a preponderance of evidence that his progenitors were the first settlers on the land in dispute. I agree with the Court below that given all the circumstances of this case, the Appellant’s case at the trial Court did not make cogent and consistent sense… The Appellant went to Court for a declaration of title to land. He was not able to prove his claim to ownership of the cluster of Villages both at the Upper Area Court and the appellate division of the High Court, who both evaluated the evidence for and against his claim. I see no reason to disturb the concurrent finding as of fact by the two…
Further dissatisfied with the Judgment of the Court of Appeal, which affirmed the decision of the High Court to uphold the Judgment of the Upper Area Court, the Appellant sought and obtained leave of the Court of Appeal to appeal to the Supreme Court.
THE DIFFERENT WAYS OF PROVING TITLE TO LAND
Before examining the case at hand, it is germane to first highlight some basic principles relating to a claim for declaration of title to land.
- Aclaim for a relief of declaration of title to land is not established by an admission by the defendant, because the plaintiff must satisfy the court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. In other words, such a Claimant must succeed on the strength of his own case, not on the weakness of the defendant’s case, therefore, the burden of proof on the Claimant is quite heavy in the sense that such reliefs are not granted, even on admission by the Defendant, where he fails to establish his entitlement to the declaration by his evidence.[2]
- The claimant has the primary duty to prove clearly and unequivocally the precise area to which his claim relates. This is because a declaration of title to land can only be granted in respect of land which has definite, precise, and accurate boundaries. This is imperative particularly where such claimant also seeks an order of injunction to restrain his adversary from trespassing or further trespassing or encroaching upon the land or res he claims. In this regard, the claimant must in addition to other title documents like the certificate of occupancy attach a survey plan which clearly and precisely shows the delineated area and the portion trespassed on.[3]
- There are five ways by which title to land could be proved.[4] They are as follows:
- By traditional evidence.
- By production of documents of title duly authenticated and executed
- By acts of ownership extending over a length of time numerous and positive enough as to warrant the inference of true ownership.
- By acts of long possession and enjoyment.
- 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.
By traditional evidence.
In pleading traditional history/evidence, 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. This history is clearly stated in the pleadings and not on appeal. If pleadings are badly rendered, a party cannot repair them on appeal to his advantage. In other words, a party relying on evidence of traditional history must plead his root of title, and must show who the ancestors were and how they came to own and possess the land and eventually pass it to him, or the claim fails.[5]
By production of documents of title duly authenticated and executed
This involves the production of a valid instrument of grant. However, it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own.[6] Rather, production and reliance upon such an instrument inevitably carries with it the need for the court to inquire into some or all of the following questions:
(a)whether the document is genuine and valid;
(b)whether it has been duly executed, stamped and registered;
(c)whether the grantor had the authority and capacity to make the grant;
(d)whether the grantor had in fact what he purported to grant; and
(e)whether it has the effect claimed by the holder of the instrument.
By acts of ownership extending over a length of time numerous and positive enough as to warrant the inference of true ownership and by acts of long possession and enjoyment.
Acts of long possession and enjoyment of land may also be prima facie evidence of ownership of the particular land with reference to which such acts are done and serve as weapon of defence in a declaration of title to land distinct from a claim for trespass.[7] However, while possession may raise a presumption of ownership, it cannot stand when good title is proved.[8] Acts of possession can take the form of the owner of a land being able to dispose and deal with his Properties as he deems fit. He must also be able to pass a good title to the buyer of the land as the ‘Nemo dat quod non habet’ rule will stand. This simply means, you cannot give what you don’t have, you cannot pass a good title to a person when yourself do not have a good title to the property.
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.
Section 35 of the Evidence Act provides that:
Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.[9]
It is instructive to note that although a party may have proved his title in any of the five ways identified above, he or she could still fail if the defendant makes out an unanswerable defence such as laches and acquiescence, limitation or extinguishment.[10] Again, the five ways of proving title to land mentioned above are disjunctive in the sense that a party who proves any of the above is entitled to the ownership of the land.[11] In other words, to succeed in an action of declaration of title to land, a claimant need not prove title by all five ways conjunctively. A claimant can succeed if he is able to prove to the satisfaction of the court even one of the ways listed above to show he acquired title to the land.[12] In Ojoh vs, Kamalu (2005) 18 NWLR (Pt. 958) 523, Tobi, JSC, explained that:
To succeed in an action of title to land, a Plaintiff need not prove all the five ways. A Plaintiff can succeed if he proves even one of the ways. It depends on the evidence he relies upon to prove his case of title or ownership – – If the Plaintiff relies on traditional evidence as legal basis of his ownership, his duty is only to prove such traditional title. He need not prove any of the other four ways. If the Plaintiff is relying on conveyance as the legal basis of his ownership, his duty is only to prove the second way, by the production of documents of title or titles deeds. So, it goes through the three other ways.
DISCUSSIONS ON THE CASE UDER REVIEW
Now, even though a claimant can rely on only one way of proving title to land, such a claimant may choose to rely on more than one mode of proving title, if so desired.[13] In the case under review, the Appellant argued that he was not relying on traditional evidence as a root of title, but he however asserted in open Court that the land in dispute “belongs to Maranro Family, who are the Alaho of Aho-Ogbada”; and that his forefathers were hunters, who hunted to the place, and “did not meet anybody on the land, neither do they get the land from anybody”. In other words, he is saying that his forefathers, who were hunters, founded the land when they went on a hunting expedition. The Supreme Court agreed with the lower courts that the traditional evidence which was pleaded and evidence led goes to the root of how the Appellant’s forefathers first got to the land, and how it devolved to him. It must therefore, first be addressed before any consideration of the other ways the Appellant said he is relying upon to prove title to the land.
In Sanusi vs, Ameyogun, Supreme Court held as follows:
Even though there are five different ways of proving title, where evidence of tradition has been adduced, it is necessary to go into it first, for evidence of tradition usually goes to the roots as to how a Claimant and his predecessor-in-title came upon the land.[14]
In Ezuchukwu vs, Ukachukwu (2004) 17 NWLR (Pt. 902) 227 and Eze vs, Atasie (2000) 10 NWLR (Pt. 676) 470 at 482, Uwaifo, JSC, stated as follows:
To establish the traditional history of land relied on as root of title, a Plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages, which have not been and cannot be explained. In other words, the pleading of the devolution and evidence in support must be reliable, being credible or plausible, otherwise the claim for title will fail.[15]
How to Prove Traditional History
Traditional evidence, “is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the Community or Village who claim the land is theirs or who defend a claim to such land”. [16] The evidence required is not evidence of yesterday or a few years ago but one of many years; what the lawyers call “immemorial” evidence, which means back to ancient times. In other words, for evidence of traditional history to be acceptable, it must go back to ancient times in the sense that the evidence existed for a very long time. The evidence must have endured through generations.[17] So, in pleading traditional history, the Claimant is expected to narrate the genealogical tree from original owner, the ancestor, in generations appurtenant to him, down the line to the Claimant. He must plead his root of title, and must show who the ancestors were and how they came to own and possess the land and eventually pass it to him, or the claim fails.
In the case under review, the Appellant as the Plaintiff, testified at the trial Court that the land in question belongs to Maranro Family, who are the Alaho of Aho Ogbada; that their forefathers called Maranro were hunters; that they neither met anyone on the land or was the land given to them by anyone; that the said land in question covered Afijagba, Labisi, Onisapa, Sanni-Ode, Fibike, Laniyan, InajaMaliki, Badwin, Owode, Kajola, Bakin and Aho-Ogbada; that the first Alaho called Baba Disu Maranro came to the throne in 1830 after the demise of some past hunters; that after him was Baba Tunde Balapa Maranro. The third Alaho is Adigun Maranro, who came to the throne in 1930. After him is Iliasu Iyanda Maranro who came to throne in 1960 and died in 1993. That he became the next Alaho in 1993
In analysing the evidence of the claimant, the Supreme Court raised some of the unanswered issues raised by claimant’s evidence. Some of the issues where:
- Who were these past hunters?
- Who were the past hunters that lived before the first Alaho came to the throne in 1830?
- Was there an Alaho before 1830, and how did “Baba Disu Maranro”become the first Alaho in 1830?
- The Appellant also gave the names of three Alahos between 1830 and 1930. How long did each of the said three Alahos stay on the said throne to ascertain whether there were only three Alahos within the said period of a hundred years?
The Court noted that the Appellant cannot be allowed to just pick 1830 and list the Alahos from since then. The Appellant must show who his ancestors were and how they came to own and possess the said land and eventually passed it to him. The traditional evidence must be cogent; it must also not be contradictory or in conflict with that of the Defendant for the Court to accept it before it would be sufficient to support a claim of title to land.[18]
It concluded that, with the gaping holes in the testimony of the Appellant as to who the past hunters in his family were and how they came to own and possess the land in dispute before the first Alaho came to the throne in 1830, it cannot be said that he discharged the onus of him to prove that he, and his family, are the only persons entitled to a Certificate of Occupancy over the land in dispute.
The Implication of the Case under Review
In this case, the history narrated by the Appellant did not go beyond 1830, and who his forefathers were before 1830, and how they had founded the land were questions left unanswered, therefore, his evidence of traditional history failed. This aspect of his evidence having failed, the Appellant is not allowed to rely on acts of possession and ownership to back his claim for title to the land.
Conclusion
Taking into account the decision of the Supreme Court delivered on the 25th of February 2022 in the reviewed case, a party seeking for declaration of title is not bound to prove more than one root of title to succeed, but he is entitled to rely on more than one root of title. However, where acts of ownership and long possession is predicated on traditional history as pleaded, he is not entitled to a declaration of title based on evidence of acts of ownership and long possession, where evidence of traditional history is unavailing. [19]
[1] Decided on Friday, 25th of February 2022 by Amina Adamu Augie JSC.
CHIOMA ANGELA OKEKE BL, LLM, MBA, ACIS, MCArb, FICMC, Neutral at the Abuja Multi – Door Court House, FCT High Court of Justice and Faculty at Nigerian Institute of Chartered Arbitrators. 08033149894; cane_ogbalu@yahoo.com.
[2] Emenike vs, PDP (2012) 12 NWLR (Pt. 1315) 556; Dumez Nig. Ltd. vs, Nwakhoba (2008) 18 NWLR (Pt. 1119) 361.
[3] Nwabueze, B O. (1982) Nigerian Land Law. Nwamife Publishing Limited, Enugu. P. 560; Kwajaffa vs, B.O.N. Ltd. (2004)13 NWLR (Pt. 889) 146; Ndayako vs, Dantoro (2004)13 NWLR (Pt. 889) 187; Onu vs, Agu (1996) 5 NWLR(Pt.451) 652; Ugbo vs, Aburime (1994) 8 NWLR (Pt.360) 1; W.D.P. Dev. Co. Ltd. vs, Trade Wheels Ltd. (2022) 8 NWLR (Pt. 1832) 247 at 289-290, paras. G-G.
[4] Gbemisola vs, Bolarinwa (2014) 9 NWLR (Pt. 1411) 1 at 21, paras. F-G SC; Balogun vs, Akanji (1988) 1 NWLR (Pt. 70) 301.
[5] Dike vs, Nzeka (1986) 4 NWLR (Pt. 34) 144.
[6] Mulima vs, Usman (2014) 16 NWLR (Pt. 1432) 161 at 193-194, paras. G-E; Ezuchukwu vs, Ukachukwu (2004) 17 NWLR (pt. 902) 227 SC; Odi vs, Iyala (2004) 8 NWLR (pt. 875) 283 at 312.
[7] Ayorinde vs Kuforiji (2022) 12 NWLR (Pt. 1843) 43 at 113, paras. F-G.
[8] Idundun vs Okumagba (1976) 9 – 10 SC 227; Dakolo vs, Dakolo (2002) 11 NWLR (Pt. 777) 99 at 124-125 paras.H-A.
[9] Nwabueze, B O. (1982) Nigerian Land Law. Nwamife Publishing Limited, Enugu. P. 560.
[10] Adedeji vs, Oloso (2007) 5 NWLR (Pt. 1026)133; Ayorinde vs, Kuforiji (2022) 12 NWLR (Pt. 1843) 43 at 112-113, paras. G-D.
[11] Mogai vs, Cadbury (Nigeria) Ltd (1985) 2 NWLR (Pt 7) 393; Omoregbe vs, Idugiemwan Ye (1985) 2 NWLR (Pt 5) 41; Ezeoke vs, Nwagbo (1988) 1 NWLR (Pt 72) 616; Fasaro vs, Beyioku (1988) 2 NWLR (Pt 76) 263; Okpuruwu vs, Chief Okpokam (1988) 4 NWLR (Pt 90) 554.
[12] Nruamah vs, Ebuzoeme (2013) 3 NWLR(Pt.1372) 474; Ajiboye vs, Ishola (2006) 13 NWLR (Pt.998) 628; Anyanwu vs, Chukwu (2020) LPELR 51946; Ojoh vs, Kamalu (2005) 18 NWLR (Pt. 958)523; Sanusi vs, Ameyogun (1992) 4 NWLR (Pt.237) 527; Matanmi vs, Dada (2013) 7 NWLR (Pt. 1353) 319 at 332, paras. C-D.
[13] Matanmi vs, Dada (2013) 7 NWLR (Pt. 1353) 319 (P. 332, paras. C-D).
[14] (1992) 4 SCNJ 117.
[15] Eze vs, Atasie (2000) 10 NWLR (Pt. 676) 470 at 482; Sogunro vs, Yeku (2017) 9 NWLR (Pt. 1570) 290.
[16] Oputa, JSC, explained in Dike vs, Nzeka (1986) 4 NWLR (Pt. 34) 144
[17] Ojoh vs, Kamalu (2005) 18 NWLR (Pt. 958) 523 Per Tobi, JSC.
[18] Sogunro vs, Yeku (2017) 9 NWLR (Pt. 1570) 290; Eze vs,Atasie (2000) 10 NWLR (Pt. 676) 470 at 482.
[19] Eronini vs, lheuko (1989) 2 NWLR (Pt. 101) 46.