Alhaji Hamdana Kankia V. Ali Maigemu & Ors (2002)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
The plaintiff, in the Katsina State High Court of Justice, took out a writ of summons against the defendants claiming a declaration of title to a parcel of land situate at Kofar Bai quarters, Katsina; N50,000.00 general damages for trespass and perpetual injunction.
Parties, with exception of fourth defendant, filed and exchanged pleadings which were settled at statements of claim, and defence as well as reply to the statement of defence. The plaintiff testified on behalf of himself and called another witness in support of his claim.
The defendants called a witness, in person of third defendant to testify for the defence. The fourth defendant too testified. Thereafter, learned counsel addressed the court. At the end of learning, the learned trial Judge Abdullahi M. Yusuf, J., in a reserved and well considered judgment, dismissed the claim.
The plaintiff was dissatisfied with the judgment, being aggrieved appealed to this Court in a notice of appeal containing three grounds of appeal. Efforts were made to amend the notice of appeal and seems abandoned on 3rd October, 2001 when the motion on notice filed for amendment of the notice of appeal was struck out. Pursuant to the notice of appeal contained at pages 93 and 94 of the record of appeal, briefs of argument were filed and exchanged.
Subsequently, the plaintiff (hereinafter referred to as appellant) brought application for enlargement of time to file a fresh brief instead of amending the existing previous brief. This application was granted on 22nd November, 2000 when the previous appellant’s brief was withdrawn and struck out. Consequently, the first, second, third and 5th respondents filed their joint respondents’ brief of argument. Fourth respondent who failed to file a statement of defence at the trial has equally defaulted on brief writing.
At the hearing of the appeal, both appellant and fourth respondent were not in court. The appellant was duly served. The fourth respondent was not served, as previous efforts to serve him had proved abortive, the hearing had to proceed notwithstanding failure to serve him. The appeal was then heard by deeming the appellant’s appeal heard on the strength of his brief considered filed with effect from nnd November, 2000 by virtue of Order 6 rule 9(5) of the Court of Appeal Rules, Cap.62 of the Laws of Federation of Nigeria, 1990. Learned counsel for the remaining respondents, without further elaboration on their brief, adopted same.
The appellant formulated 2 issues in his brief of argument which formulations are set down immediately hereunder:
“1. Whether the learned trial Judge properly evaluated the evidence in this case.
- Whether in the circumstance of this, case, a sketch plan was a sine qua non for the appellant to establish his case.”
On the other hand, respondents in their brief of argument framed or identified only one issue for determination. It reads as follows:
“Whether the appellant’s claims were properly dismissed by the trial court.”
In the appellant’s brief, it was contended on his behalf by his learned counsel that the learned trial Judge set out the appellant’s claim at p.72 reviewed evidence of witnesses at pages 73 – 74 and evaluated evidence at lines 6 – 41 of page 86 before coming to the conclusion that appellant has not proved his title to the land in dispute as a result of which he dismissed the claim in toto. It was further contended that the raison d eter that influenced the learned trial Judge’s decision was appellant’s failure to call witnesses to support his claim. It was then submitted that the decision was informed by improper evaluation of evidence and the proper approach for evaluation of evidence is to place the evidence adduced by either side on an imaginary scale to ascertain the side to which it tilts: He cited the case of The State v. Aibangbee (1988) 3 NWLR (Pt.84) 548; (1988) 7 SCNJ (Pt.2) 154, 168.
Learned counsel for appellant after summarizing the fact of the case submitted that where title to land is in issue the court is only concerned with the relative strength of the titles proved by the parties.
He cited in support of this submission the case of Arase v. Arase (1981) NSCC 101, 118. He further submitted that the evidence of second defence witness destroyed the basis of the respondent’s case.
The respondents had traced their root of title to the 4th respondent and on the strength of the evidence of the fourth respondent the foundation for the defence was removed leaving only appellant’s evidence on the scale to justify giving him judgment; Learned counsel cited in support there for the case Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432, (1987) 7 SCNJ 1.
Learned counsel further submitted that even though appellant was bound to succeed on the strength of his own case he is entitled to rely on the evidence of the defendant: Akinola v. Olowu (1962) 1 SCNLR 352; Ahaneku v. Iheaturu (1995) 2 NWLR (Pt.380) 758 and Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 339, (1998) 6 SCNJ 102, 118.
Learned counsel also attacked the rejection of the evidence of second plaintiff witness on the ground that it is hearsay and argued that the said witness testified to what he saw. In the same token he impugned the rejection of the testimony of the second defence witness for rejecting it solely because it was unfavourable to the respondents who called him.
The last submission of the learned counsel touches upon the regularity or otherwise of the visit to locus in quo. It is doubtful if this grouse can be tacked under a ground raising an issue of evaluation of evidence which is at best a ground of mixed law and fact. If the visit to locus in quo was not properly or conducted not according to law then it is more than settled that it should form a separate ground of appeal.
It raises an issue of law. In the absence of such ground of appeal, I am not entertaining the argument canvassed in support in the appellant’s brief and I am inclined to strike it out and I so do.
I propose to deal with the reason for the learned trial Judge rejecting the testimony of the second plaintiff witness as well as that of the second defence witness. In the case of the second plaintiff witness, learned trial Judge reasoned that his evidence would not be countenanced because it tantamounts to hearsay. The reasoning of the learned trial Judge is pegged on the admission of the witness under cross-examination that “I was not there when he bought the land from Alkali Mai-Unguwa. Yes, all I know about the plaintiff’s ownership of the land is from what the plaintiff told me.”
Is there any better evidence of hearsay? Certainly not and the appellant did not establish circumstances warranting the said witness acquiring personal knowledge of the acquisition of the land. He is neither one of the four witnesses to the transaction nor one of those whose signatures were affixed to the alleged receipt given to the appellant.
The second defence witness, who was joined by order of court is not strictly a witness for the first, second, third, and fifth respondents rather he was a witness in his own right as a party to the case. I look in vain for where the learned trial Judge said he was rejecting the evidence of second defence witness merely because it is unfavourable to the respondents as alleged by the learned counsel for appellant in his brief of argument. Rather the learned trial Judge reasoned as follows before rejecting the evidence adduced by second defence witness who is incidentally fourth respondent herein:-
“So also is the evidence of DW2 Mallam Lawal Buje.
He is not a reliable witness. His evidence is viewed with reservation as this same person signed a document granting the disputed piece of land to the 1st, 2nd, 3rd and 5th defendants, later on he said he was deceived into signing same he now comes to say that the land belongs to him and his brother. He did not tell the court why he allowed the plaintiff to build an incinerator on his land.”
The reasons given for rejecting the evidence adduced by second plaintiff and second defence witness was in the course of evaluating evidence placed before the learned trial Judge and are faultless and unassailable.
The area of ascription of probative value to witnesses is a province exclusively reserved to the trial court simply for having opportunity of watching, seeing and hearing witnesses and determine their demeanour while testifying before it. The appellate court is seriously handicapped in this area of adjudication because it has no opportunity of watching and hearing a witness perform before it. In this case, learned trial Judge gave reasons for disbelieving both witnesses which reasoning had not been faulted save for the mundane reason that the evidence of those witnesses did not favour the other party. Learned counsel would have done better if he had posited reason faulting those given by the court or showing that the findings are unsound. The finding can therefore be set aside. The duty and circumstances for disturbing or intervening in the finding of fact by a trial court has been laid down in a long line of cases to the effect that it is not part of the function of an appellate court to lightly interfere with finding of fact of a trial court except such finding is unsound or perverse or not supported by evidence. See Kesedu v. Dompreys & Others 2 WACA 268,272; Kuma v. Kuma 5 WACA 4; Macjaja v. Ibok (1947) 12 WACA 148,149 – 150; Kojo v. Bonsie (1957) 14 WACA 242, 243; Ebba v. Ogodo (1984) 1 SCNLR 372, (1984) 4 SC 84 and Benmax v. Austin Motor Limited (1955) 1 All ER 326, 327. The appellant as observed earlier has not shown why these findings were unsound or perverse or not supported by evidence.
In any case, as rightly observed by the learned counsel for the respondents that these findings had not been appealed against. An appeal against ascription of probative value to witnesses or findings of fact does not raise issue of evaluation of evidence or vice versa.
They can therefore not be lumped together. The testimony of second plaintiff and second defence witnesses would not be adverted to in the course of treating this appeal.
Furthermore, exhibit A is a document written in Hausa. It has not been translated to English, the language of both this court and the trial court. Therefore, it cannot be taken into account in this judgment. I, therefore, discountenance it. In case I am wrong, it can be garnered from the proceeding of the trial court and the briefs of argument, in the instant appeal, that the intendment of exhibit A is fourth respondent’s renounciation of the grant of disputed parcel of land to the remaining respondents. The fourth respondent did not renege on the customary grant made to the remaining four respondents until the appellant had slammed a writ of summons on respondents including himself, I therefore, agree with the submission of the learned counsel for the respondents, in the first, second, third and fifth respondents brief, that exhibit A is a document made by an interested party when proceedings were pending in the court below and is consequently inadmissible in evidence. The fourth defendant, incidentally the present fourth respondent, testified as second defence witness, made customary grant of the land in dispute to the fifth respondent through exhibit B. When this suit was brought, fourth respondent purportedly reneged the grant made or given in exhibit by making exhibit A when appellant instituted the action resulting in the present proceedings. See Section 91(3) of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990 which says:
“(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
See Apena v. Aiyetobi (1989) 1 NWLR (Pt.95) 85, 94; Group Captain A.-G., Gbadamosi & Another v. Kabo Travels Ltd. & Others (2000) 8 NWLR (Pt.668) 243.
Notwithstanding the admission and marking of the document, with concurrence of both counsel, as exhibit A it is not within the competence of parties to a proceeding to admit, by consent or otherwise, a document which, by law, is inadmissible. Owonyin v. Omotosho (1961) All NLR 304, 308; (1961) NSCC 179, 183;Alashe v. Olori Ilu (1964) 1 All NLR 390,397, Yasin v. Barclays Bank DCO (1968) NMLR 380.
It is equally trite that where inadmissible evidence had been inadvertently or improperly received in evidence in the court below even when no objection had been raised, it is the duty of court when considering its judgment to expunge such evidence. Even on appeal, it could still be rejected if through inadvertence it escaped the trial court; either court would then decide on lawful evidence vide Usefowokan v. Idowu (1969) 1 NMLR 77, 81; Abike v. Adedokun (1986) 3 NWLR (Pt.30) 548, 554; Jaiker v. International Cable Co. Ltd. (1808) 5 TLR 13 which was cited with approval in Owoyemi v. Omotosho (supra) and Ogboda v. Adulugba (1971) 1 All NLR 68, 73.
Having made these observations, I now turn to the consideration of the submission of the learned counsel for appellant that, in civil proceedings, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence though, in some cases, the plaintiff’s case may derive strength from evidence supplied by defence: Ekpo v. Ita II (1932) NLR 68; Nwokafor & Others v. Udegbe (1963) 1 All NLR 104, 107; Elufisoye v. Alabetutu (1968) NMLR 298. But such evidence, before they could give succour to the plaintiff’s case, must go into issue and must be credible unchallenged and incontrovertible: Omoregbe v. Lawani (1980) 3-4 SC 108, 177; Owonyin & Others v. Omotosho (supra).
The evidence of second plaintiffs and second defence witnesses as well as exhibit A having been ruled illegal or found not to be credible cannot provide any strength nor succour to the appellant’s claim.
Pleadings were settled at a statement of claim, a joint statement of defence of the first, second, third and fifth respondents as well as a reply to the said statement of defence. The fourth defendant or fourth respondent herein did not file a defence to the action. The parties joined issues as per paragraphs 3, 4 and 5 of the statement of claim, paragraphs 6, 7, 8, 9, 10 and 11 of the statement of defence and paragraph 2 of the reply to the statement of defence. Paragraphs 3, 4 and 5 of the statement of claim read as follows:-
“3. The plaintiff is the beneficial owner of the two set of houses and their immediate surroundings in Kofar Bai Quarters, Katsina which houses are known and referred to as Hamdana Houses.
- That prior to this action, the plaintiff has been in a peaceable possession of the piece of land and the said buildings for several years without any form of invasion, obstruction or trespass as he has good title to the said land housing the buildings; and that nobody has ever disputed his title to the land.
- That in order to help his neighbours who lived near him within Kofar Bai Quarters, the plaintiff built an incinerator on his said land which incinerator is still being used up to date by him and his neighbours at no costs to the neighbours.”
The respondents, having admitted paragraph 3 of the statement of claim to the extent that the plaintiff is the owner of the two houses at Kofar Bai, denied paragraphs 4, 5, 6, 7 and 8 went on to plead in their joint statement of defence thus:-
“6. In further reply to paragraphs 4 – 8, the said defendants aver that the plaintiff, who is not an indigene of Kofar Bai Quarters, bought the land on which his two houses are built from one Alkalin Batsari which was then under the care of Mallam Sale Kofar Bai.
- That the land did not extend to or include the land in question in this case.
- That the land in question belongs to Lawal Buje 4th defendant and his family.
- That the land was a farmland later used as a refuse dump by the community.
- That Lawal Buje demised the land to Kofar Bai Development Association (5th defendant) the instrument of grant and its translated copy are hereby pleaded.
- That the 4th and 5th defendants followed the necessary procedures and obtained the necessary approvals of the Mai Unguwa, the Wakilin Gabas and Magajin Gari before the grant was made.”
The plaintiff or appellant in his reply to the statement of defence averred as follows:-
“2. In reply to paragraph 7 of the joint statement of defence, the plaintiff hereby avers that his piece of land extends to the land in dispute in this case and that he personally built an incinerator on the same land which is still there uptill today.”
The present reply, in my respectful opinion, in the absence of counter-claim, is unnecessary since the purpose is solely to deny the averments contained in the statement of defence for without it there is an implied joinder of issues. Filing of reply may be necessary if to plead relevant additional fact which render untenable a particular defence raised in the statement of defence or negate applicability of such defence. Moreover, where because of the nature of the defence proffered the plaintiff intends to lead evidence in rebuttal or to raise matter of fact not arising from both the statements of claim and defence, a reply may be, in such circumstance, filed as the plaintiff may not be permitted to lead evidence on any material fact he had defaulted to plead to in his statement of claim:- Bakare v. Ibrahim (1973) 6 SC 205; Akeredolu v. Akinremi (1989) 3 NWLR (Pt.108) 164 at 172. In the circumstance respectfully it is unnecessary for the appellant who incidentally was plaintiff in the court below to have pleaded in reply to the statement of defence.
On the issue joined in the pleadings, it seems to me the respondents are not impugning the appellant’s title to the parcel of land on which the appellant’s twin houses known as Hamdana Houses are situated. The parties merely joined issue on the piece of land which the appellant allegedly built an incinerator upon for public use and a public tap was installed purportedly with the consent of the appellant. Since the incinerator which the appellant claimed to have built on the disputed land is accessible to both himself “and his neighbours at no costs to the neighbours” could not have put any one on inquiry of the appellant’s adverse possession. Similarly, the fact that he purportedly consented to a public tap to be installed on the land in dispute further strengthens the view that the appellant was never exercising exclusive possession on the land in dispute.
The substance of the plaintiff’s case both on the pleadings and evidence, is that he purchased the land on which his houses, Hamdana Houses and its surroundings from one Alhaji Ibrahim Mai Unguwar Dutsinma contrary to the averment of the respondents that he bought only the piece of land on which his twin houses are built from one Alkalin Batsari. And that his act of possession and ownership included depositing of building material on the land, the building of incinerator therein for public use and giving of consent to some unnamed or faceless persons to install a public tap on the land. He has been in peaceable enjoyment of the land without any disturbance whatsoever for about 10 years before the institution of the action leading to this appeal.
The appellant who testified that he bought the land from Alhaji Ibrahim Mai Unguwar Dutsinma, who is not an indigene of Katsina, failed to show how his vendor came to acquire the land which was sold to him. It is incumbent on the plaintiff, appellant herein, to establish how the party through whom he is claiming divested the person through whom that person acquired title and title came to be vested in them. See Aderemi v. Adedire (1966) NMLR 398. H equally failed to tender the receipt which he claimed was issued to him by his vendor evidencing the transaction. Furthermore, he said four persons who were witnesses to his purchase of the land also signed the said receipt but he failed to call any of them nor his vendor.
Rather he called second plaintiff witness who, under cross examination, admitted to testifying to what he was told by the appellant, the plaintiff at the trial court. It seems to me that the learned trial Judge rightly rejected his claim based on purchase, which seems to me to be an after thought, as not having been made out. I consider purchase as basis of the claim as an after-thought because throughout the length and breadth of the statement of claim appellant did not breathe a word of the purchase. It took a reply to the statement of defence to foist the issue of purchase from Alhaji Ibrahim Mai Unguwar for the first time. It seems to me that appellant failed to make out the case of purchase of the land from Alhaji Ibrahim Mai Unguwar Dutsinma or any other person.
It seems to me that the appellant’s case was mainly pegged on the principle of prescription which respectfully had not been made out in respect of the land in dispute. The respondents contended that the land in dispute does not form part of the parcel of land on which the two houses belonging to the appellant are built. Rather they contended further that it is separated by a road from those two houses and contiguous to the fourth respondent’s family house. Indeed it is their case that it is at the backyard of fourth respondent’s family house. It follows that the respondents, like the appellant, are basing their claim on title. It is settled that where titles are being relied upon by rival claimants the claimant with a better title is entitled to succeed. See Oceanic Estates Ltd. v. Pinder (1969) 2 All ER 19, 24 – 25 per Lord Diplock, Anukanti v. Ekwonyeaso (1978) 1 LRN 346, 351 referred to in Arase v. Arase (1981) 5 SC 33, 35; (1981) NSCC 101, 118 per Bello, JSC (as he then was) and Okorie v. Udom (1960) SCNLR 326, (1960) FSC 162.
The appellant woefully failed to make out his case of title and desperately sought to rely on the respondents’ case to prop up his own case. But he can only rely on the respondents’ case if it supports his. See Akinola v. F. Olowu (1962) 1 All NLR 224, 225; (1962) 1 SCNLR 352 and Ahaneku v. Iheaturu (1995) 2 NWLR (Pt.380) 758.
The appellant having failed to show that he has a better title than the respondents there is nothing upon which to hang his case based on prescription. A right to title is not founded on prescription irrespective of the period of possession. This was succinctly put by Obaseki, JSC in Mogaji v. Cadbury Nigeria Limited (1985) 2 NWLR (Pt.?) 393 at page 431 thus:-
“A claim for a declaration of title is not founded on ownership by prescription under native law and custom … unless the origin of title is valid, the length of possession does not ripen invalid title of a trespasser to a valid ownership title.”
Incidentally, the principle of prescription under the customary law is not very different, if not the same from what obtains under the Islamic Law. In Hadith as well as Islamic Jurisprudence, there is consensus that a person who clears a virgin piece of land becomes the owner. Dr. Peron at page 335 of Volume V of the Precis de Jurisprudence Musulmane, on Principles de legislation Musulmane, Civile et Religiouse, selon le Rite Malekite par Khalil Ibn-Ishak; traduit par M. Perron mentions the saying of Prophet Muhammad (PBUH) to that effect. According to strict theory of Sharia a thing that belongs to another cannot be acquired by mere possession however long. The acquisition of rights connected with property in the nature of easement may be acquired: See p.281 of the Principles of Mohammedan Jurisprudence according to Hanafi, Maliki, Shafi’i and Hambali Schools by Abdur Rahim London & Madras.
Alternatively, title to an abandoned property can be acquired by prescription or Hauzi if a person is in a peaceable possession for more than ten years unless the claimant can show that the occupants are his relations, trustee or partner or co-proprietor or a person in permissive occupancy. See Maliki Law by F.H. Ruxton pages 308 and 309.The appellant has not successfully established that he came into possession lawfully. He seems to have gained his alleged possession by sleight, by the building of the incinerator, which was put to public use, on the plot in dispute. Furthermore, a public tap was installed on the parcel of land which in turn further strengthened the fact that he was never in exclusive peaceable possession for a period of ten years.
As it was observed earlier, in this judgment, the piece of land, on which parties herein joined issue is not adjacent to the appellant’s land on which he built his houses because, contrary to his assertion, it is separated from it by a road or even built on the road itself.
The learned trial Judge dealt a deadly blow at the case for the appellant when he found and held that the parcel of land upon which the incinerator is situate as well as the site of the proposed mosque and Islamiya School according to the respondents’ plan and the visit to the locus in quo are not adjacent to the Hamdana Houses though opposite them. Learned trial Judge further found that the three structures are situate in the middle of a highway leading to Kofar Bai. This finding has not been appealed against and clearly the appellant’s vendor has no ownership title in the road which he could have transferred to the appellant.
In any case, the learned trial Judge, as rightly conceded in the appellant’s brief, painstakingly reviewed the evidence adduced before him, evaluated, weighed them before applying the applicable law to the evidence accepted by him. See Abidoye v. Alawode (2001) 6 NWLR (Pt.709) 463, 473 and Mogaji v. Odofin (1978) 4 SC 91 which had been substantially complied with by the learned trial Judge.
It is not shown that the decision is perverse, therefore, this court cannot interfere with the findings of fact of the learned Judge.
The answer to this issue is positive in the result ground 1 from which it is formulated fails and it is dismissed by me.
The remaining issue deals with appellant’s failure to file a plan.
In canvassing this issue, the learned counsel for appellant, in the appellant’s brief, conceded that, in an appropriate case, a party seeking declaration of title to land should tender a plan showing the essential features of the land. But contended that the principle admits of exception and it is not in all cases that production of plan is a sine qua non for a party to succeed. He then submitted that on the pleadings and the evidence adduced parties agreed upon the identity of the land.
Respondents’ learned counsel argued the two issues together, a faulty and cumbersome approach which makes it fairly difficult to separate the argument proffered in support of the two questions raised in this appeal.
It is trite that there is a burden of proof on the plaintiff who seeks a declaration of title to a parcel of land to show with definitive certainty the identity of land to which his claim relates Olusanmi v. Oshasona (1992) 6 SCNJ (Pt.11) 282, 287, (1992) 2 NWLR (Pt.245) 22. Even where the identity and location of the land is not disputed, in an action for a declaration of title to land, the plaintiff still has the onus to establish an identifiable area to which his claim relates: Iyaji v. Eyigebe (1987) 3 NWLR (Pt.61) 523 at 529. This burden of proof is discharged by oral evidence or description of the land that any surveyor armed with the proceedings of the court could with definitive certainty produce a plan of the land in dispute: Adjei v. Kwadzo 10 WACA 274.I agree with the learned counsel for the appellant’s submission that where the land in dispute is well known and the quantity, extent and area of the land in dispute are known the requirement for the plaintiff to tender a sketch plan is dispensed with or obviated. See Olujinle v. Adeagbo (supra); Bashorun v. Olorunfemi (1989) 1 SCNJ 23, 33 and Osho v. Ape (1998) 8 NWLR (Pt.562) 492, (1998) 6 SCNJ 1399 154.
It is apt, at this stage to examine the pleadings and evidence tendered in support of the identity of the land in dispute. All the plaintiff pleaded in his statement of claim is:-
“The plaintiff is the beneficial owner of the two sets of houses and their immediate surroundings in Kojar Bai quarters, Katsina which houses are known and are referred to as Hamdana House.” (Italicising mine)
An averment which the respondents denied in paragraph 7 of their statement of defence. They denied that the plaintiff is the owner of the area where the Islamiya School and mosque are being proposed in addition to denying that the plaintiff owns the incinerator which he is claiming. These challenges probably incited or caused the appellant amongst others to file a reply to the statement of defence wherein he averred thus: –
“2. In reply to paragraph 7 of the joint statement of dyfence, the plaintiff hereby avers that his piece of land extends to the land in dispute in this case and that he personally built an incinerator on the same land which is still there uptill today.”
Clearly, the statement of claim puts a larger area of land in issue than the respondents were prepared to contest. It follows that contrary to the submission of the learned counsel for appellant in the appellant’s brief, that the land was well known to the parties that tendering of sketch plan was no longer required is untenable. Equally, on the pleadings settled the quantity, extent and area of the land in dispute is not known to the parties to obviate the need for proof of them. The burden of proof, in the circumstance, laid squarely on the appellant. How far did the appellant fare in the discharge of this onus of proof? The evidence he adduced in this regard reads as follows:
“I have two houses in Kofar Bai quarters. I have a place where I built incinerator I own these houses for about 10 years.”
The evidence just set down, was considered inadequate by learned trial Judge in demarcating and ascertaining the boundary of the land in dispute. And I agree with him that the description of the identity, area and quantity of land in respect of which appellant sought a declaration of title is scanty, vague and grossly inconclusive. I agree with learned counsel for respondents that no reasonable tribunal will tie a declaration of title to such evidence which is of little or no weight:- See Oke v. Eke (1982) 12 SC 218; Awote v. Owodunni (1987) 2 NWLR (Pt.57) 367; Anaka v. Chako (1997) 2 NWLR (Pt.488) 494 and Adjei v. Kwadzo 10 WACA 274. Adjei case set down the acid test to be applied in measuring the quantum of evidence required to determine identity of the land. The test is whether a surveyor armed with the proceedings of the court will be able to map out or identify the land in dispute. The same test was applied by the Supreme Court of Nigeria in the case of Olusanmi v. Oshasona (supra). It is very clear that the evidence given by the appellant in relation to the land in respect of which he sought a declaration of title is grossly inadequate. See also Ajao v. Adigun (1993) 3 NWLR (Pt.282) 389, 397 and Baruwa v. Ogunshola (1938) 4 WACA 159.
It is equally on record that in the course of the proceedings culminating in this appeal, the learned trial Judge ordered each party to file a sketch plan of the land in dispute which order the appellant ignored. I think he did so to his own peril and cannot be heard to complain at this stage that the learned trial Judge wrongly rejected his case for want of description of the land in dispute. The learned trial Judge’s order to file plan was not made for the fun of it and orders of court are in any case meant to be obeyed and not flouted with impunity in the manner the appellant did. If through his own negligence or disobedience to the order of the court he thereby suffers which is not so here, in any case, he has himself to blame.
Finally, the appellant implores the court to use the sketch drawn by the respondents pursuant to the order of the court which he disobeyed to give him judgment. The respondents’ plan was admitted and marked as exhibit C. The concept of the appellant of the land in dispute is different from respondents’ while the former both in his pleadings and evidence described the property in dispute to be his twin houses and the surrounding land, the latter did not put in issue the land upon which the 2 houses are situated. In any case, the respondents’ plan, exhibit C, showed the incinerator, proposed mosque and school to be sitting on the middle of the township road.
Is it the case of the appellant that he owns the township road? I do not think so. It necessarily follows that the respondents’ plan is of no assistance to the appellant’s case.
I answer the appellant’s issue 2 positively and ground 3 of the grounds of appeal framed there from fails and is dismissed. Ground 2 of the grounds of appeal is not related to any of the issues framed by the appellants and is deemed abandoned. It is for that reason struck out. All the grounds of appeal having failed. the appeal fails and it is dismissed with costs assessed at N4,000.00 to the respondents who participated in the hearing of the appeal.
Other Citations: (2002)LCN/1088(CA)
