Samuel Okedare V. Oba Ahmadu Adebara & Ors. (1994)

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was by paternal inheritance, the owner of all lands in Jebba. He claimed other reliefs, including declarations in relation to certain things and injunctions restraining the appellant alone or the 2nd and the 3rd respondents in relation to certain matters. The appellant filed a Statement of Defence to the Statement of Claim of the 1st respondent.

In the Statement of Defence of the appellant was included a counter-claim in which he claimed, inter alia, a declaration that he and his family known and called Okedare family of Jebba’ were the customary owners and/or entitled to possession of all lands in and around Jebba, Kwara State, Nigeria, which land was bounded in the North by River Niger, in the West by Gata, in the East by River Oshin/Bacita and in the South by Alagbon, and which land also included the land on which the Nigerian Paper Mill constructed its logging Road Project and subject matter of the suit.

He also claimed another declaration and also a decree in respect of certain things and four permanent injunctions restraining one or the other of the 1st, the 2nd and the 3rd respondents. The 2nd and the 3rd respondents filed a joint Statement of Defence.

The evidence led by the 1st respondent was that he was appointed the Oba of Jebba in 1943 by the Emir of Ilorin in succession to his father. The 1st respondent by custom and tradition owned all parcels of land in Jebba. According to him his family used to allocate land to deserving subjects in his domain and everyone living in Jebba was his tenant. His subjects who had been allocated parcels of land used to give yams and guinea corn as tributes to his family.

The appellant led evidence that he and members of his family were the owners of all parcels of land in and around Jebba. The averments, in his statement of Defence, showed what was the basis for his claim that all parcels of land in and around Jebba belonged to his family.

The immediate cause of the dispute between the appellant and the 1st respondent was the disbursement of the compensation which the Nigerian Paper Mill Limited was to pay for the land acquired by the Mill in the area. The list of claimants for compensation for crops which the 1st respondent submitted to the Mill did not include the appellant or any member of his family. On learning of what happened, the appellant protested to the Ministry of Works, Lands and Survey, Horin, and to the Management of the Nigerian Paper Mill Limited.

The learned trial Judge, after due consideration of the evidence led by the parties and of the submissions of their learned counsel, non-suited the appellant and the 1st respondent in respect of their claims for compensation, dismissed the other aspects of the 1st respondent’s claim, and granted the other reliefs claimed by the appellant. In particular, the learned trial Judge stated, inter alia, as follows:-

“Principally, this suit is 1st plaintiff’s baby. He only included the names of the other co-plaintiffs for the sake of making up number. They remained faceless throughout the proceedings as they never testified. Their claim is dismissed. All the other declarations sought by the 1st plaintiff fail and are accordingly dismissed.

The 1st Defendant clearly proved his case in respect of all the declarations sought by him apart from the specific amount of compensation due on economic trees. The declarations sought by the 1st defendant apart from those relating to compensation are upheld. They are ordered accordingly.”

Dissatisfied with the judgment of the learned trial Judge, the 1st respondent lodged an appeal to the Court of Appeal. A careful reading of the judgment of the Court of Appeal shows that the court was of the view that the claim of the 1st respondent that he was the owner of all lands in Jebba and the claim of the appellant that he and his family were the customary owner and/or entitled to possession of all lands in and around Jebba were considered by the Court as claims to unascertained land which could not succeed. That accounts for that part of the order of the court which stated as follows:-

“In the result, this appeal succeeds in part. The judgment of Fabiyi, J., granting declaration and injunctions claimed by the 1st respondent, in his counter-claim is set aside. The appeal of the appellant against the dismissal of the appellant claim is dismissed.”

In the view of the court below, since the area claimed by the 1st respondent was not ascertainable to enable one to determine the actual amount he was entitled to be compensated the proper order was an order of retrial. The evidence adduced was definitely inconclusive to establish the 1st respondent’s individual claim against the payment made by the Paper Mill. In making the order for retrial, the court stated that other persons whose rights have been affected by the acquisition of land by the Paper Mill Limited, should be allowed to participate in the retrial proceedings. The foregoing accounts for the second part of the order of the court below which is as follows:-

“I order the case to be retried by the High Court, but before another Judge. All parties and those interested in the compensation paid by the Nigerian Paper Mill, Jebba, should be notified of the retrial for them to file their respective claims before the High Court.”

There was no inconsistency or conflict in the first and the second parts of the order made by the court below as previously thought when the appeal was being heard and as argued by the learned counsel for the parties. Whether the judgment of the court below and its orders were right is another matter.

Dissatisfied with the judgment of the Court of Appeal, the appellant has lodged an appeal against it to this court. The parties duly filed and exchanged briefs of argument in accordance with the rules of this court. There were six issues formulated for determination in the appellant’s brief and the 1st respondent adopted the issues raised in the appellant’s brief. The other respondents did not file any brief. In my view, many of the issues framed in the appellant’s brief were repetitive and the answers to some of them were incapable of assisting the court to resolve the main questions. The following issues for determination are sufficient for the determination of this appeal:-

(1) Was the identity of the land being claimed by the 1st Respondent reasonably certain and if the answer is in the negative what was the legal consequence

(2) Whether the identity of the land being claimed by the appellant was not reasonably certain

(3) If the oral evidence led by the appellant on the description of the boundaries of the land being claimed by him was not in accordance with the description of the boundaries of the land in dispute in the counter-claim, what order should the Court of Appeal have made

(4) Whether the Court of Appeal was right in ordering a retrial in relation to the claim for compensation payable for the land acquired for Nigeria Paper Mill Ltd

I deal with the first issue. The question raised under the issue was whether the identity of the land being claimed by the 1st respondent was reasonably certain. The court below in dealing with that aspect of the matter stated, inter alia, as follows:”

Salman Referred to the case of Ate Kwadzo v. Robert Kasi Adjei (1944) 10 WACA 274. I have gone through that case and I agree with Salman that the West African Court of Appeal held in that case that before a declaration of title is given, the land to which it relates must be ascertained with certainty, the test being whether a surveyor can from the record produce an accurate plan of such land……………………………….. With respect to the submission of the learned counsel for the 1st respondent the facts of this case can easily be distinguished with the facts in Sa’adu Yakubu’s case. In the case in hand both the appellant and the 1st respondent have claimed that their respective families owned all lands in Jebba . ……………. Now what amounts to all land in and around Jebba. Can the court declare any of the families the owner of lands in and around Jebba when, as a matter of fact, there are various admissions by both parties that some other persons do own lands within Jebba G and its environs.”

The submission in the appellant’s brief was that the Court of Appeal was wrong in holding that the description of the land in dispute was vague. It was argued that the appellant (respondent before the court below) admitted the description of the land in dispute given by the 1st respondent, (appellant in the court below). The submission of the learned counsel for the 1st respondent was that the Court of Appeal was right in holding that the description of the land in dispute was vague. I will only add that that might be true in the case of the 1st respondent’s claim but may not necessarily be so in the case of the counter-claim of the appellant. With reference to the alleged admissions, in this connection by the appellant, a declaration of title or to statutory right of occupancy is not granted wholly or solely on admissions in pleadings. See Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) 90.

With reference to the legal consequence of the 1st respondent’s failure to establish the identify of the land being claimed by him, the consequence is that his claim should be dismissed as was done by the learned trial Judge. The court below, rightly, affirmed the judgment. A plaintiff in a claim for declaration of title or to statutory right of occupancy must prove ascertainable boundaries, since the plaintiff’s first duty is to prove, with certainty, the area over which he claims. A plaintiff is required to establish with certainty and precision the area of land to which his claim relates. If he fails to prove the boundaries or the identity of the land in dispute, the claim will be dismissed. See Olusanmi v. Oshasona, (1992) NWLR (Pt. 245) 22 at pp. 36; and Imah v. Okogbe, (1993) 9 NWLR (Pt.316) 159. In this case the expression “land in Jebba” without more was not a sufficient description that could reasonably enable one to determine with precision and certainty the identity of the land in dispute. The court below was, therefore, right in dismissing the appeal of the 1st respondent against the judgment of the court of trial dismissing his claim.

The question raised under the second issue was whether the identity of the land being claimed by the appellant in the counter claim was not reasonably certain. The view of the court below was that the identity of the land being claimed by the appellant in the counter-claim was not reasonably certain. The court, in this respect, stated inter alia, as follows:-

“If the 1st respondent admits that the appellant and some other persons do own separate farms and economic trees within the disputed area is the court right to declare the Okedare’s family of Jebba as the customary owner and/or entitled to possession of all land in and around Jebba, Kwara State, as the learned trial Judge did in his judgment The learned trial Judge had made a vague declaration and the appellants are quite in order to raise the issue even at the appeal stage”

The position taken by the appellant was that the identity of the land being claimed by him in the counter-claim was reasonably certain. The submission in the 1st respondent’s brief was that the description of the land in dispute was vague and that the court below was right in the view it took.

I have set out above the relevant part of the judgment of the learned trial Judge entering judgment for the appellant. Unfortunately the statement of the learned trial Judge that the declaration being sought by the appellant, apart from those relating to compensation, were upheld and they were ordered accordingly was not helpful. The averment in paragraph 73(i) of the Statement of Defence relating to the counter-claim did not merely state that the appellant and his family were the owners of all lands in and around Jebba, Kwara State, it went further to give particulars of the boundaries of the land being claimed. The averment is as follows:-

“(1) A declaration that the 1st Defendant and his family known and called ‘the Okedare family of Jebba’ is (sic) the customary owner and/or entitled to possession of all lands in and around Jebba Kwara State, Nigeria, which land is bounded in the North by River Niger, in the West by Gata, in the East by River Oshin/Bacita and in the South by Alagbon and which lands also include the land on which the Nigerian Paper Mill constructed its logging Road Project and subject matter of this suit.”

There was similar averment in paragraphs 50 and 51 of the Statement of Defence of the appellant. Whether the appellant would be able to prove what he averred in paragraph 73(1) of the Statement of Defence set out above is another thing. It is sufficient for the present purpose, to state that the description of the boundaries of the land in dispute in relation to the counter-claim satisfied the test laid down by the West African Court of Appeal in Kwadzo’s case supra, that is, whether a surveyor can from the record produce an accurate plan of such land. The answer i )the question raised under issue (2) is in the affirmative.

The next question is the question raised under the fourth issue which was whether the Court of Appeal was right in ordering a retrial in relation to the claim for compensation payable for the land acquired by the Nigerian Paper Mill Limited. The argument, if any, in the brief of each party was devoted to the supposed inconsistency in the order made by the court below. The question whether the court below was right in making the order for retrial was not treated. I have already shown that there was no inconsistency of any kind in the order made by the court below. The court below made the order because it felt that the evidence available on record did not sufficiently establish the 1st respondent’s claim to compensation. The court also felt that it would give those who did not participate in the proceedings, though they might want to claim compensation, to do so. What happened was that parties to this case allowed the issue of claim and counter-claim to the land in dispute to take precedence over the claim for compensation for crops which did not involve question of the ownership of the land in dispute. In the process, no evidence or sufficient evidence was led on the claim for compensation for the crops on the land acquired by the Nigerian Paper Mill Limited. As a result, the learned trial Judge non-suited the appellant and the 1st respondent. Those who were not parties to the case when retrial of it was ordered cannot be parties to the retrial. Annah v. Djan (1944) WACA 21.

I now come to the question raised under the third issue. The question is: if the oral evidence led by the appellant on the description of the boundaries of the land being claimed by him was not in accordance with the description of the boundaries of the land in dispute in the counter-claim, what order should the Court of Appeal have made The answer to the question depends on the facts and the circumstances of each particular case. If there is any difference between the description of the land in dispute as averred in the pleading and the description of the land in dispute given in evidence, by the plaintiff, the nature of the order which the court should make depends on whether the description given in evidence does not relate at all to the land in dispute or any part thereof or whether the description relates only to a smaller portion of the land in dispute. If the description of the land given in evidence does not relate to the land in dispute or any part thereof, then the plaintiff’s claim or the defendant’s counter-claim, as the case may be, in relation to the land in dispute has to be dismissed. If the description, given in evidence, though not in accordance with the description in the pleading, is a description of only a part of portion of the land in dispute, that alone should not be a reason for dismissing the plaintiff’s or the counter-claimant’s claim. This court, in a situation like that, stated in Imah’s case supra, inter alia at pp. 175, as follows:-

“In the first place, the land in dispute did not consist of only the aforesaid two parcels of land. Therefore, failure of the appellants to establish their claim to them alone should not result in the dismissal of their claim to other parts of the land in dispute outside the two parcels of land. Secondly, if a plaintiff who is claiming a declaration of title to land claimed a larger parcel of land but succeeds in proving the boundaries and title to a small parcel of land, he is entitled to a declaration of title in respect of the smaller part of the land originally in dispute, the title and boundaries of which he has proved with certainty. See Sogunle v. Akerele (1967) NMLR 58; and Arabe v. Asanlu (1980) 5 – 7 S.C. 78 at pp. 85-87.”

A court may grant less but not more than the land in dispute. The appellant led evidence on the boundaries of the land in dispute in the counter-claim. The evidence was given by D.W.1. Under cross-examination by the learned Counsel for the 1st respondent, the D.W.1 stated, inter alia, as follows:-

“I know the boundaries of Okedare’s land. Okedare’s land is bounded by the Niger Bridge along Bida Road. Along the South i.e. Road leading to Ilorin. Okedare land is bounded by Bacita Road junction. In the East, Okedare’s land is bounded by River Oshin and in the West by Awon River.”

There is no doubt that the description of the land in dispute in the counterclaim given by the D.W.1 was not really or exactly the same as the description of the same land given in paragraph 73(i) of the Statement of Defence of the appellant. The question then is whether despite the slight variation(s) in the aforesaid description, by the D.W.1, it was still a description of the land in dispute or of any part or portion thereof or that it was not a description of the land in dispute or of any part thereof. Unfortunately, the learned trial Judge did not make any finding in respect of the fundamental question. Further, there was evidence before the learned trial Judge, and it can be inferred from the Statement of Defence and Counter-claim filed by the appellant, that there were other persons who had farms on the land in dispute which showed that the appellant could not have been able to prove his claim, if any to the whole of the land in dispute. The locations of the said farms within the land in dispute and their sizes are not known. This is another fundamental matter in respect of which there should have been findings by the learned trial Judge. If the findings, which depend on credibility of witnesses, in relation to the foregoing matters had been made, that would have enabled this court to hold either that the appellant’s counter-claim should have been dismissed or that his claim to the whole of the land in dispute or any part or portion thereof should have been granted. For that reason, the appellant’s appeal partially succeeds and it is hereby allowed to the extent indicated. Where an appeal is allowed because of the failure of the trial court to make findings on material issues and the determination of the material issues depends on credibility of witnesses, the proper order to make is an order for retrial. See Karibo v. Grend (1992) 3 NWLR (Pt. 230) 426.

The appeal partially succeeds and the following are my consequential orders:-

1. That the order made by the Court of Appeal for a retrial of the case generally is hereby set aside, and in place thereof a retrial of the counter-claim, except claim for compensation in respect of which both parties have been non-suited, before another Judge of the Kwara State High Court is substituted.
2. That the appellant as counter-claimant shall file a survey plan in terms of the description of the parcel of land subject of the order for the retrial, and the 1st respondent may also do so, if he desires.
3. The appellant is awarded costs of N1,000.00

WALI, J.S.C: I have had a preview of the lead judgment of my learned brother Adio, J.S.C. and with which I entirely agree.

For the reasons contained in the lead judgment of my learned brother Adio, J.S.C., I shall partly allow and hereby allow this appeal and make the following consequential orders:-

1. That the order made by the Court of appeal for a retrial of the case generally is hereby set aside.
2. In place of a retrial of the whole case generally, an order limited to the retrial of the counter-claim before another judge of the Kwara State High Court is hereby substituted.
3. That the appellant as counter-claimant shall file a survey plan in terms of the description of the parcel of land subject of the order for a retrial.
4. That the 1st respondent may, if he so desires, also file a survey plan of the land in dispute in the counter-claim.
5. That the appellant is awarded N1,000.00 costs in this appeal against the 1st respondent.

KUTIGI, J.S.C: The plaintiff’s claims as contained in para. 36 of their statement of claim dated 27/3/86 read as follows:-

“36. Whereof the plaintiffs claim (sic) against the defendants jointly and severally.

1(a) A declaration that the 1st plaintiff, as the Oba of Jebba is by paternal inheritance, the owner of all lands in Jebba.

(b) A declaration that the rightful claimants to N43,973.12 compensation are those people whose names appear on the list compiled at the site of the counting of the economic trees and crops the original of which list is now with the second Defendant.

(c) A declaration that the first Defendant having failed and or neglected to come out and show that he had interest in the land in issue at the time that everybody was asked to come out, is estopped from later coming out to say that he owns the land.

(d) A declaration that the plaintiffs are entitled to compensation as assessed by the Nigerian Paper Mills Limited, Jebba.

(e) Alternatively a court’s order that the plaintiffs are entitled to the said compensation as assessed and paid by the Nigerian Paper Mills Limited, Jebba, the plaintiffs being the occupiers of and were in physical possession of the said land and for whose economic trees and crops the said compensation was paid by the said Nigerian Paper Mills Limited Jebba.

2. (a) An injunction restraining the first defendant or any member of his family from holding himself out or parading himself as the owner of all lands in Jebba.

(b) An injunction restraining the second and third Defendants from recognising the 1st defendant as the owner or co-owner of all the land in respect of which compensation is about to be paid.

(c) An injunction restraining the second and third defendants from paying the compensation in this case to anybody other than those whose names appear in the list with the second defendant”

The 1st defendant in his Statement of Defence, counter-claimed against the plaintiff’s, 2nd & 3rd defendants vide para. 73 of the Statement of Defence and Counter-Claim thus –

“73(i) A declaration that the 1st defendant and his family known and called “the Okedare family of Jebba” is the customary owner or, entitled to possession of all lands in and around Jebba Kwara State, Nigeria which land is hounded in the North by River Niger, in the West by Gara, in the East by River Oshin/Bacita and in the South by Alagbon, and which lands also include the land on which the Nigerian Paper Mill constructed its Logging Road project and subject-matter of this suit.

(ii) A declaration that 1st defendant and his said family only are entitled to the N36,315.00 compensation payable and duly paid by the Nigerian Paper Mill, in respect of economic trees destroyed on the said part of 1st defendant’s land at Jebba Kwara State, Nigeria, on which the said Nigerian Paper Mill constructed its Logging Road project, which said compensation had been (sic) forwarded to 2nd Defendant by the said Nigerian Paper Mill and is now in the custody of the said 2nd Defendant.

(iii) A decree of the court ordering 2nd defendant to pay the said N36,315.00 compensation to 1st defendant.

(iv) A permanent injunction restraining plaintiff from further holding himself out as the customary owner of, or from ever trespassing into, or receiving or claiming compensation in respect of the economic trees on, the said all lands at Jebba subject-matter of plaintiff’s claim in this suit and 1st defendant’s counter-claim in this suit.

(v) A permanent injunction restraining 2nd and 3rd defendants from ever paying the said N36,315.00 compensation to plaintiff or any person other than 1st Defendant and his family.

(vi) A permanent injunction restraining 2nd defendant from ever and henceforth paying compensation in respect of economic trees or any other item or items of compensation due to a customary owner of land, to plaintiff, with regards to all lands at Jebba.

(vii) A perpetual injunction restraining 2nd defendant from recognizing plaintiff as the traditional owner of all or any lands whatsoever at Jebba”

Because of the order which I intend to make finally I do not wish to go into the facts of the case and what the witnesses called at the trial said or did not say. Suffice it to say however that at the end of the trial before Fabiyi, J. of the Ilorin High Court, the learned trial Judge in a reserved judgment dismissed plaintiffs’ claims while 1st defendant’s counter-claim succeeded except the claims of the parties relating to compensation where he entered an order of non-suit for both sides. He said on pages 280/281 of the record as follows:-

“Upon an exquisite consideration of the evidence adduced, I am unable to pin-point the sum payable on economic crops for which the 1st plaintiff or his bench-men are entitled to compensation. Similarly, the 1st defendant failed to prove his figure of N36,315.00 He merely said it is a liquidated claim…………………………………………..

I enter an order of non-suit in respect of both parties’ claims relating to compensation. Principally, the suit is 1st Plaintiff’s baby. He only included the names of the other five co-plaintiffs for the sake of making up number. They remained faceless throughout the proceedings as they never testified. Their claim is dismissed. All the other declarations sought by the 1st plaintiff fail and are accordingly dismissed. The 1st Defendant clearly proved his case in respect of all the declaration, sought by him apart from the specific amount of compensation due on economic trees. The declarations sought by the 1st defendant apart form those relating to compensation are upheld. They are ordered accordingly.”

Dissatisfied with the judgment of the trial High Court, the plaintiffs appealed to the Court of Appeal, Kaduna. The appeal was against the whole decision. The following five issues were formulated for determination before the court.

“1. Whether on the totality of the evidence before the trial court the Plaintiff/Appellant have failed in toto in proving his case to warrant his case being dismissed.

2. Whether on the evidence before the trial court the Defendant/Respondent has proved his counter-claim.
3. Whether in the absence of a plan a declaration granting all lands in and around Jebba to the Defendant/Respondent is certain and ascertainable.
4. Whether, inspite of admission by the Defendant/Appellant that some other people own their own land in Jebba, the trial learned Judge was right in granting all lands in and around Jebba to the defendant/Appellant without giving them a hearing in the absence of any evidence that the Defendant/Appellant gave the land to such other land owners.
5. Whether the learned trial Judge was right in treating Exhibit 2, which was a proceeding before an Upper Area Court as an evidence testified to before him.”

The Court of Appeal carefully went into the issues and finally dismissed plaintiffs’ appeal in respect of their own claims but allowed the appeal in respect of the declarations and injunctions granted to the 1st defendant in respect of the counterclaim. Uthman Mohammed J.C.A. (as he then was) delivering the leading judgment concluded his judgment thus-

“In the result, this appeal succeeds in part. The judgment of Fabiyi J., granting declarations and injunctions claimed by the 1st respondent in his counter-claim is set aside. The appeal against the dismissal of the appellants’ claims is dismissed. I order the case to be retried by the High Court, but before another judge. All parties and those interested in the compensation paid by the Nigerian Paper Mill, Jebba should be notified of the retrial for them to file their respective claims before the High Court. Parties are to bear own costs of this appeal.”

It ought to be made clear at once that the plaintiffs/appellants’ appeal failed and was dismissed. So there is nothing to be retried there. The appeal against the counter-claim in favour of the 1st defendant was however allowed and the declarations and injunctions set aside. The order for a retrial before other judge of the High Court therefore can only be in connection with the counter-claim of the 1st defendant.

Now, further aggrieved by the decision of the Court of Appeal, the plaintiffs have again appealed to this Court.

Briefs were filed and exchanged. Mr. Ijaodola learned counsel for the plaintiffs in his brief submitted the following issues for determination –

(i) Considering the state of the pleadings, could it be validly raised “that the land in dispute was uncertain”

(ii) Could the decision of Hon. Justice Fabiyi of the Ilorin High Court validly affect non-parties to the suit and was it right to set aside the trial court’s decision on that point

(iii) Did the promulgation of the Land Use 1978 affect the parties’ interests under native law and custom

(iv) What is the proper order for the lower court (Court of Appeal) to make when the plaintiff who was the appellant before it did not prove its case

(v) Can the Court of Appeal order a retrial when it held: “the appeal against the dismissal of the appellants’ claim is dismissed.”

(vi) Could the reasons given by Hon. Justice Akpabio be sustained

In view of my explanation of the purport of the final orders of the judgment of the Court of Appeal above, it is quite obvious to me that issues (ii) & (iii) ceased to be relevant, the judgment of Fabiyi J, in respect of the counter-claim of the 1st defendant (the Okedare family) having been set aside and a re-trial ordered. The remaining four issues simply boil down to two. And these are;

(1) Whether the plaintiffs’ claims were validly dismissed on the state of the pleadings; and

(2) Whether the order for re-trial was properly made.

These issues will be treated and answered together.

But before I go into these issues, Mr. Salman learned Senior Counsel for the 1st defendant raised a preliminary objection that plaintiffs’ Grounds of appeal 1, 2, 3, 4 & 6 are incompetent being grounds of mixed law and fact or facts alone for which neither leave of this Court nor of the Court below was obtained contrary to Section 213(3) of the 1979 Constitution. Mr. Ijaodola responding said all these grounds are grounds of law since they do not dispute any finding of fact but legal conclusions only arising from admitted facts. I have read the Grounds of Appeal myself and I am inclined to agree with Mr. Ijaodola that the grounds are grounds of law even though as stated by Mr. Salman, some of the particulars supplied under some of the grounds are matters of fact. But clearly the facts are not themselves in issue but only the legal conclusions drawn from them. The preliminary objection is accordingly overruled. (See Nwadike & Ors. v. Ibekwe & Ors. (1987) 12 S.C. 14 (1987) 4 NWLR (Pt. 67) 718.

It was contended by Mr. Ijaodola that it was palpably wrong for the lower courts to have held that the land adjudicated upon was vague when there was nothing in the pleadings which suggest that the identity of the subject matter of the dispute between the parties was in issue. He said it is settled law that what is admitted needs no further proof as provided for under section 74 of the Evidence Act.

I have earlier on set out the claims of the plaintiffs above. Paragraph 36(a) relates to the piece of land over which they sought for a declaration of title. For the avoidance of doubt, it reads –

“36 (1)(a) A declaration that the 1st plaintiff as the Oba of Jebba is by paternal inheritance, the owner of all/and in Jebba.”

In para. 1 of the 1st Defendant’s Statement of Defence it was pleaded thus –

1. The 1st defendant denies paras. 1, 2, 3, 5, 10, 11, 12, 25, 27, 28, 29, 30, 34, 35 and 36 of Plaintiff’s Statement of Claim and puts Plaintiff to the strictest proof thereof.”

I have tried in vain to discover from the 1st defendant’s pleadings where if at all he admitted knowing “all land in Jebba” claimed by the plaintiffs. But be that as it may, even If there was such an admission (which is denied) I believe it is settled law that a party claiming to be entitled to a declaration must satisfy the court by evidence and not by an admission in the pleadings of the defendant, that he is entitled to such a declaration. Apart from the fact that the court has a discretion whether or not to grant the declaration, the success of a claimant in such an action depends entirely on the strength of his own case and not the weakness of the defence (See Kodilinye v. Odu (1935) 2 WACA 336 and Bello v. Eweka (1981) 1 S.C. 101 at 102 per Obaseki, J.S.C.).

The trial High Court had this to say on page 274 of the judgment –

“This account is one for declaration of title. The plaintiff must succeed on the strength of his case and not on the weakness of the defence. He must therefore succeed by credible evidence. Refer to Kodilinye v. Odu (1935) 2 WACA 336. The first plaintiff’s case appears weak and the evidence adduced seemed most unreliable. Such evidence appeared concocted in the main. I cannot and do not believe some.”

There was no appeal against the finding therein.

In addition the Court of Appeal per Mohammed J.C.A (As he then was) who read the leading judgment said as follow

“I agree………………………………. that before a declaration of title is given the land to which it relates must be ascertained with certainty, the test being whether a Surveyor can from the record produce an accurate plan of such land.”

I am therefore in complete agreement with the findings of the court below that the plaintiff’s claim of “all land in Jebba” is vague and uncertain. It is not capable of ascertainment either. A declaration of title can only be granted in respect of a piece of land which has definite precise and accurate boundary (See Kwadzo v. Adjei (194) 10 WACA 274. Araba v. Asanlu (1980) 5-7 S.C. 78, Bello v. Eweka (supra).

The 1st defendant’s counter-claim however did not suffer the same or similar defects as that of the plaintiffs”. I have already reproduced the counterclaims as per para. 73 of the 1st defendant’s Statement of Defence (supra). For ease of reference I reproduced again para. 73(1) as follows –

“73(1) A declaration that the 1st defendant and his family known and called “the Okedare family of Jebba” is the customary owner and/or entitled to possession of all lands in and around Jebba Kwara State Nigeria, which land is bounded in the North by River Niger. In the West by Gata in the East By River Oshin/Bacita and in the South by Alagbon and which land also include the land on which the Nigerian Paper Mill constructed its Logging Road Project and subject matter of this suit.”

He had earlier pleaded in paras. 50 and 51 of the same Statement of Defence thus

“50 The said Okedare Family of Jebba which consists of many members today and of which 1st Defendant is a member and headed by Pa Abraham Okedare was and still is the customary owner of all lands in and around Jebba, Kwara State, Nigeria the land subject-matter of this suit inclusive.

51. The said Okedare’s family land at Jebba is today bounded in the North by River Niger, in the West by Gata in the East by River Oshin and Bacita and in the South by Alagbon.
52. 1st Defendant and his Okedare family of Jebba inherited their said land at Jebba from their forclath0rs originated by the said Okedare Lanloke or Lanloke and from time immemorial.

The plaintiff in his Reply to the 1st Defendant’s Statement of Defence and Counter-Claim pleaded in paras. 11 & 12 that –

“11. The plaintiffs deny paras. 50, 51 & 52 and puts the 1st defendant to the strictest proof thereof.

12. With respect to para. 50 the plaintiff avers that never at any time did the 1st defendant nor his great grand father own all lands in Jebba or own the land in this present suit.”

It should thus be appreciated at once that in the suit there are two different pieces of land, at least by their descriptions, for which declarations were sought by the plaintiff and 1st defendant respectively. Plaintiffs’ land is simply “all land around Jebba” while the 1st defendant’s own is as described in paras. 51 and 73(1) of the Statement of Defence and Counter-Claim set out above.

I do not think it can be seriously contended that the land in dispute in the Counter-Claim for which the 1st defendant sought a declaration is not identifiable or ascertainable. I think it is quite identifiable following the description given by the 1st defendant himself in paras. 51 and 73(1) of the Statement of Defence and Counter-Claim. It is settled that where there is no difficulty in identifying the land a declaration of title may be made without it being based on plan (See Etika v. Dikiba (1976) 6 S.C. 97). The trial High Court was therefore in order to have granted the Declaration and injunction in respect of the land in favour of the 1st defendant being land with definite boundaries.

The Court of Appeal was therefore wrong when it said –

“It is plain that the land, the Okedare family (the defendants) is declared the customary owner and or entitled to possession “in and ground Jebba” is uncertain.”

It was the plaintiffs who claimed to be owners of “all lands in Jebba”. (See para. 36(1)(a) of the Statement of Claim above). That land was clearly uncertain. The 1st defendant’s claim (the Okedare family) is as set out above in paras. 51 and 73(1) of the Statement of Defence. The description of the land in those paragraphs are to me referable to a certain and definite piece of land from which a Surveyor who understands the features referred to therein can produce a plan of the land (See Kwadzo v. Adjei) (1944) 10 WACA 274 Araba v. Asanlu (supra).

The Court of Appeal however, found it necessary and for ample reasons too to set aside the declarations and injunction granted to the 1st defendant and in its stead ordered a retrial before another judge of the High Court. It must be emphasised again that the retrial can only be in connection with the Counter-Claim, the Court of Appeal having rightly in my view dismissed “the appeal against the dismissal of appellants (plaintiffs) claim.”

In ordering a retrial the court below observed in the lead judgment that “there are many people like the plaintiff/appellant and the 5 plaintiffs living in and around Jebba and owning properties and lands therein” who would be affected by any declaration one way or another. It also observed that the appellant himself adduced no evidence to show the area of his land which had been acquired by the Nigerian Paper Mill for the construction of their Logging Road to entitle him to any amount as compensation, and that the presence of other people and or tenants on the land in dispute and any rights acquired by any of them since the promulgation of the Land Use Act 1978 coupled with the absence of clear evidence on the value of economic trees lost by individual land holders or owners, a retrial was desirable. The cases of Udofia v. Afia (1940) 6 WACA 2 I6 and Araba v.Asanlu (1980) 5 – 7 S.C. 78 were cited and relied upon.

I think the Court of Appeal was right in principle. Apart from observations above there was evidence and which the High Court accepted, that the 1st defendant’s family owned the lands on which the Federal Low Cost Housing and the General Hospital all in Jebba were constructed. When compensation was paid it was paid direct to the 1st defendant’s family. Again When the Nigerian Paper Mill Acquired land in Jebba and failed to pay compensation, the 1st defendant’s family instituted an action in an appropriate court which was still pending at the time of the present suit. This is therefore in my view a proper case to order a retrial and not a dismissal of the Counter-Claim as contended by the plaintiff/appellant’s counsel since there is evidence, at least for now, that the defendant owns parts of the land in dispute. As observed above there was no appeal against the non-suit order of the High Court in respect of the claims for compensation by the parties either in the Court of Appeal or in this Court.

The main issues relating to the other claims by the plaintiffs and the 1st defendant’s remaining Counter-Claims having been considered and resolved against the plaintiff (except the retrial of his own case which is allowed) the appeal fails I endorse the orders of the Court of Appeal dismissing plaintiffs claims subject as above and ordering a retrial of the 1st defendant’s Counter-Claims also subject as above. The 1st defendant should file a Survey Plan of the area of land he claims as described in paras. 51 & 73(1) of his Statement of Defence before the commencement of the new trial.

I endorse the orders in the lead judgment of my learned brother Adio J.S.C. which I read before now.

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SC.29/1991