Anthony Ibhafidon Vs Sunday Igbinosun (2001)
LAWGLOBAL HUB Lead Judgment Report
KUTIGI, J.S.C.
In the High Court holden at Benin City, the plaintiff’s claims as stated in paragraph 19 of his amended statement of claim read thus-
“19 (1) A declaration of customary right of occupancy to the area verged pink on plant CS. 10/2
(2) N500,000.00 general damages for trespass.
(3) Perpetual injunction to restrain the defendant, his agents and or assigns from further trespass on the said land.
After the filing and exchange of pleadings the case proceeded to trial. At the trial the plaintiff testified and called two witnesses. The defendant also gave evidence and called four witnesses. Various documents which the parties relied upon were also tendered as exhibits at the hearing.
At the end of the trial, counsel on both sides addressed the court. In a reserved judgment the learned trial Judge carefully considered the evidence before him and dismissed all the plaintiffs claims when he concluded his judgment on page 85 of the record thus –
“I find as a fact that the plaintiff has failed to prove that he is entitled to any of the reliefs sought in paragraph 19 of the amended statement of claim which is hereby dismissed in its entirety”
Dissatisfied with the judgment of the learned trial Judge the plaintiff appealed to the Court of Appeal holden at Benin City. The Court of Appeal in a unanimous judgment considered all the issues submitted to it for resolution and dismissed the appeal.
Aggrieved by the decision of the Court of Appeal, the plaintiff has now further appealed to this court.
The Plaintiff’s case was simply that he applied to the Plot Allocation Committee of ISIOHOR village on 10/3/73 for a grant of a parcel of land by the Oba of Benin in accordance with Bini custom. The application was approved by the Oba of Benin on 18/5/73. The parcel of land measured 400 feet by 400 feet (see Exhibit A). The grant was further confirmed by a deed of conveyance dated 19/9/97 conveying the same piece of land to the plaintiff as grantee and the Oba of Benin as the grantor/trustee. The conveyance is Exhibit B.
Its recitals read in part –
“2. By an application dated the 10th day of April 1973 the Grantee applied to the Grantor for a grant of the said piece or parcel of land.
- The said application was approved by the Grantor on the 18th day of May, 1973.
The Grantor as the said Trustee hereby conveys unto the Grantee All that piece or parcel of land at Isiohor Village in Ward II/K. in Benin City, having an area of 4.599 acres demarcated by survey beacons BC.4839, BC.4880, BC4841 and BC.4842 which piece or parcel of land is particularly delineated in PINK on Plan No. B./GA/941/76 annexed to these presents”
The plaintiff said he remained in undisturbed possession until sometime in 1981 when the defendant began to trespass on the said land. When all efforts to settle the matter failed to achieve any positive result, he instituted these proceedings in court. The plaintiff also filed a survey plan of the area in dispute as Exhibit F on which he relied.
The defendant on the other hand said he also by application dated 20/12/73 applied to the same ISIOHOR Village Plot Allocation Committee for a plot of land. He got one. And the Oba of Benin gave his approval on 24/4/74. The piece of land also measured 400 feet by 400 feet (see Exhibit J).
He said the land given to him as per Exhibit J was not the same land given to the plaintiff as per his Exhibit A or at all.
The defendant also filed and relied on the survey plan of the area in dispute. This was Exhibit G in the proceedings.
After a review of the facts and after considering all the exhibits tendered in support of the grants by both sides the learned trial Judge held that the plaintiff had failed to prove that the land approved for him in Exhibit A is the same land now in dispute in Exhibit F. That finding was confirmed by the Court of Appeal as shown above, hence this appeal.
So much for the facts of the case.
The parties filed and exchanged briefs of argument in the appeal. In the plaintiff’s brief four issues have been identified for determination.
They read as follows:
“1. Can it be said that the Court of Appeal was right when it held that the appellant had not succeeded in showing that the land in dispute as shown in Exhibit “F” is the very piece of land allotted to him in 1973 and thereafter held that the Plan in Exhibit “F” is the same as the plan in Exhibit “B” which conveyed the land to the appellant
- Can it be said that the Court of Appeal was right when it held that the respondent’s equitable interest was first in time and that any subsequent legal interest of the same piece of land would be invalid when as a fact Exhibit “A” the appellant’s Approval Form was dated 10th April 1973 while the respondent’s Approval form – Exhibit “J” was dated 20th December 1973 and both approvals were contained in Exhibits “B”, “F” and “G” as the land in dispute
- Was the Court of Appeal right in holding that legal conveyance is relevant in transferring a full and valid title to an allottee as contained in Exhibit “B” when both parties had expressly agreed to be so bound
- Were the proper principles of law followed in evaluating the evidence”
In view of the judgments of the two lower courts which I have carefully studied, I consider only issue (1) necessary for consideration in this appeal. It is only when that issue fails, that it will be necessary to consider the other issues. Issue (1) relates to the identification of the land in dispute and as I said if it succeeds, there will be no need to consider other issues because there will be no land to which those issues can be connected or related. It would then be a mere academic exercise to treat them. Put in another way the issue is simply whether the Court of Appeal was right when it held that the plaintiff has not succeeded in showing that the land in dispute as shown in Exhibit F, is the very piece of land allotted to him in 1973 or that the Plan in Exhibit F is the same as the Plan in Exhibit B which conveyed the land to the plaintiff.
It is clear from the judgments of the lower courts that the crucial issue before them was simply that of the identity of the land in dispute. The learned trial Judge in his judgment on page 83 of the record said amongst others that:
“From the evidence adduced in this case, the plaintiff has not succeeded in proving that the land referred to in Exhibit A is the land in dispute as shown in the dispute survey plan Exhibit F tendered by the plaintiff. Clearly the land in dispute is not in Isiohor/Egbaen Road (as shown in Exhibit F).”
The judgment continued on page 84 thus –
“Finally, I wish to stress that the beacon blocks marking the boundaries of the land approved in Exhibit J (The defendant’s approved application) are Nos. WIIK547, WIIK548, WIIK549 AND WIIK550. These beacons are quite different from those inserted in Exhibit A (The plaintiff’s approved application), which are B.T.P.B.B. Nos. 1031, 1032, 1033, 1034, 1035 and 1036 respectively. The two sets of beacons cannot in the absence of fraud, be inserted in respect of the same land in the same ward. No fraud has been proved by the plaintiff against the defendant.”
The learned trial Judge had before now identified clearly the dispute between the parties when he said on page 77 that:
“The facts adduced in evidence have been sufficiently set out in great detail in the course of this judgment. It seems to me that from the evidence, there is no dispute that Exhibit A, the plaintiff’s approved document and Exhibit J., the defendants approved document, were regularly recommended by the same ward and for the Oba’s approval and that the Oba’s approval was regularly indicated in the two documents. There is also no dispute between the parties as to Exhibit A being earlier in point of time than Exhibit J.
What seems to be in dispute between the parties is whether the two documents or either of them is in respect of the land in dispute which is clearly delineated in Exhibit F tendered by the plaintiff and Exhibit G tendered by the defendant. ”
And as earlier stated, the learned trial Judge had no difficulty in coming to the conclusion that the plaintiff had failed to prove that the land allotted to him as per Exhibit A is the land now in dispute as shown in the Plaintiff’s dispute survey plan Exhibit F.
One of the issues submitted by the plaintiff for resolution in the Court of Appeal reads:
“Whether it was proper for the learned trial judge to dismiss the plaintiff’s claim not on the basis of comparison of the competing titles of the parties but on the ground that the plaintiff did not show that the land in dispute is the same as that granted to him by the Oba, when the plaintiff had the land surveyed and conveyed and identity was not really the issue.”
The Court of Appeal considered the issue and in the lead judgment held as follows:-
It is trite law that in an action for a declaration of title the onus of proof is on the party seeking the declaration to prove same and on the strength of his own case, not on the weakness of the other vide Kodilinye v. Odu (1935) 2 WACA 336; Bello v. Eweka (1981) 1 S.C. 101. If some doubt has been introduced as to the location of the land and dimensions thereof, surely the onus rests squarely on the appellant to introduce evidence (even if in rebuttal), to clear those doubts.
It is for example, the, duty of the appellant to produce a plan that would leave the issue as to whether the land in dispute can be described as “situate at Isiohor on the right of the road when going from Isiohor to Egbaen” in no doubt. So also it is the task of the appellant to produce evidence to explain how a land described as 400 feet by 400 feet became 137.47 metres by 175.03 metres by 77.57 metres by 183.64 metres .
The onus is on the appellant to show that the present land in dispute was allotted to him. This I must repeat he has failed to do.
The Court of Appeal therefore dismissed plaintiff’s appeal.
It is thus the same issue of identity of the land in dispute that has been settled by both the trial High Court and the Court of Appeal that this court has been called upon to have another look. This is clearly an issue of facts. All the salient findings of facts made by the High Court in its judgment were confirmed by the Court of Appeal which then dismissed plaintiff’s appeal as shown above. Ordinarily this court ought not lightly depart from concurrent findings of facts of the two lower courts because it has no opportunity of seeing and listening to the witnesses testify. But where it is manifest that those concurrent findings were based on a wrong perspective of the case, this court has not only the right but the duty to interfere on the issues of fact (see Balogun & Ors v. Agboola (1974) 1 All NLR (Pt.2) 66, Ebba v.Ogodo (1984) 4 SC 84). The plaintiff herein has not been able to show why we should disturb the concurrent findings of facts by the lower courts. And how could he have succeeded anyway The facts above clearly show that the plaintiff was:
(1) allotted or granted a plot of land under Bini Customary Law measuring 400 feet by 400 feet with B.T.P.B.B. Nos. 1031, 1032, 1033, 1034, 1035 and 1036 as per Exhibit A in 1973. There is no plan attached to Exhibit A.
(ii) the allotment or grant above, was confirmed by a deed of conveyance in 1977 (Exhibit B). It has a survey plan attached to it showing the piece of land having an area of 4.599 acres demarcated by survey beacons BC 4839, BC 4840, BC4841 and BC 4842 C and measuring 602.5 feet by 431.3 feet by 587.4 feet by 254.5 feet.
(iii) Exhibit F is the survey plan of the land in dispute prepared by the plaintiff. It shows the land as measuring 394.82 feet by 416.50 feet by 376.57 feet by 192.55 feet by 431.33 feet by 185.99 feet.
Surely it was the duty of the plaintiff as found by the lower courts to have shown how the land measuring 400ft by 400ft as per Exhibit A grew to become 4.599 acres measuring 602.5ft by 431.3ft by 587.4ft by 254.5ft (see Exhibit B). Put in another way, it was the duty of the plaintiff to have shown that the land in dispute (Exhibit F) was the same land allotted or granted to him in Exhibit A. This he failed to do. The lower courts were therefore right to have dismissed his claims. Issue (1) therefore fails.
As I indicated earlier in this judgment issue (1) having failed, there is absolutely no need to consider the remaining issues. The issue of identity of the land in dispute being crucial, it is plain that since the plaintiff had been unable to identify the land he was claiming, he cannot succeed in the case even if other issues are decided in his favour. (See for example Kwadzo v. Adjei (1944) 10 WACA 274; Arabe v.Asanlu (1980) 5-7 SC 78).
The appeal therefore fails on the issue of identify alone. It is accordingly dismissed with N10,000.00 costs in favour of the defendant.
SC.237/1990
