Arabe V. Asanlu (1980)
LawGlobal-Hub Lead Judgment Report
BELLO, J.S.C.
The appellant as plaintiff representing himself and Isolo of Isanlu Isin family sued the respondent as defendant representing himself and Asanlu family in the Ayangba Upper Area Court claiming a declaration of title to a large parcel of land and an injunction restraining the defendant from entering the land and from interfering with the economic trees thereon.
The case for the plaintiff in the trial court was that the land in dispute belonged to his fore-fathers and that recently the defendant had entered the land and started clearing it. In his defence the defendant not only denied the plaintiff’s claim but counter-claimed informally in accordance with the practice of Area Courts that the disputed land was founded by his fore-fathers and his family have been in possession since then.
At the trial of the case both parties called witnesses who gave traditional evidence of how their ancestors got to the land in dispute. The trial court inspected the land in the presence of the parties and took further evidence at the locus in quo. There is no plan made by a surveyor. However, in accordance with the normal practice of Area Courts, the trial court made a sketch plan of the land shown to it by the parties. In a considered judgment, the trial court found that both parties have been in occupation of some portions of the disputed land and each party has exclusive possession of his own area. Consequently, the trial court awarded part of the land to the plaintiff and the other part to the defendant.
Not satisfied with the decision of the trial court, the defendant appealed to the Ilorin High Court which dismissed his appeal and affirmed the decisions of the trial court. He further appealed to the Court of Appeal and that court, in stating its reasons for allowing his appeal and setting aside the decisions of the lower courts and entering a judgment of dismissal of the claim of the plaintiff in the Ayangba Upper Area Court, observed as follows:-
“About 40 years ago, the West African Court of Appeal dealing with situation similar to what the trial court have done in the case of Ohene of Assachere v. Ohene of Dadiase 6 WACA p.86 cited by the learned counsel in the lower court, Kingdon, CJ., Nigeria, said thus:
It seems to me clear from the passage in the judgment of the Asanthehene’s Court which has been quoted by my learned brother that that court found that the plaintiff had failed to prove his case. That being so the court should, in my opinion, have dismissed the plaintiff’s claim. Instead of doing that the court divided the land between the parties fixing an arbitrary boundary. In the result the plaintiff got what amounts to a declaration of title inter parties to part of the land, a declaration to which he was not entitled since he had tried but failed to prove his right to it, whilst the Defendant got what amounted to a declaration of title inter parties to the other part of the land, a declaration for which he had asked, and to which he also had not proved his right.
We are in entire agreement with the reasoning in the quoted passage above. We not only adopt it but also apply it fully in the determination of this appeal. It may be that what the trial court did may amount to a common sense judgment but not all common sense judgments result in fairness, which is the object of justice. The respondent here wanted the whole land and it might be unfair to him to deprive him of part of it, which might be the better part, in favour of an appellant who may have no right to it, a situation which is equally unfair.
The trial court inspected the land in dispute, produced a report which shows both parties to be on the land and having exclusive possession of its own area. In a situation like that, respondent cannot be said to be in exclusive possession of the whole area claimed. The consequence of such a failure to prove such exclusive possession must result in the dismissal of respondent’s claim; Kodilinye v. Mbanefo Odu 2 WACA p.336.
During the course of the proceedings before us counsel for the respondent was unable to show how the boundary of the land in dispute which respondent claimed fit with the award made to him based on the notes made at the inspection by the trial court. This again is fatal to his claim, see Akinolu Barwa v. Ogunsola and 4 Ors. WACA p.159; Akpan Obong Udofia v. Okon Akpan Udo Afia 6 WACA p.216 at p.217.”
Incidentally, Ohene v. Ohene is not reported in 6 WACA p.86 as stated in the judgment of the Court of Appeal and in the first ground of appeal but in 7 WACA p.86.
In his turn the plaintiff was not satisfied with the decision of Court of Appeal and has appealed to this court upon the following grounds:-
“1. The learned justices of appeal erred in law and misdirected themselves in their application of the case of Ohene of Assachere of Dadiase 6 WACA p.86 at page 89.
Particulars of Error/Misdirection
- Ohene’s case is distinguished from the case now on appeal.
- The Supreme Court judgment in Titus Sogunle and Ors v. Amusa Akerele & Ors. (1967) NMLR 58 applies.
- The learned Justices of appeal misdirected themselves in their view:
‘may be that what the trial court did may amount to a common-sense judgment. But not all common-sense judgments result in fairness which is the object of justice. The Respondent here wanted the whole land and it might be unfair to him to deprive him of part of it, which might be the better part in favour of an appellant who may have no right to it a situation which is equally unfair- The consequence of such a failure to prove such exclusive possession must result in the dismissal of respondent’s claim: Kodilinye v. Mbanefo Odu 2 WACA p.336’
Particulars of Misdirection
(1) The two parties lay a claim to the land in dispute;
(2) The case was in an area court where the parties were not represented by lawyers and the common sense principle of interpretation applies.
- The learned Justices of appeal misdirected themselves in their views:
‘During the course of the proceedings before us counsel for the respondent was unable to show how the boundary of the land in dispute which respondent claimed fit with the award made to him based on the notes made at the inspection by the trial court …..
Particulars of misdirection
(1) The trial court’s record at page 28 line 34-page 30 lines 10 reads:
“One sketch map of the disputed land read in conjunction with our inspection notes and observations and in consideration of the evidence before us make us find and declare…’
(2) It was the duty of the appellant to show that the findings at the locus in quo (sic) were not correct.
(3) The authorities relied upon are distinguishable from the facts before the trial court.”
Learned counsel for the appellant argued all the grounds together. His submission is short but to the point. Relying on Titus Sogunle & Ors v. Amusa Akerele & Ors. (1967) NMLR 58, he submitted that both the Ayangba Upper Area Court and the High Court were right in law in awarding part of the land in dispute to the appellant even though he had claimed title to the whole land in dispute. He contended that the facts of the case now on appeal are distinguishable from those in Ohene v. Ohene, Udofia & Anor. v. Afia & 4 Ors. and Kodilinye v Mbanefo & Ors. (supra) which were relied upon by the Court of Appeal to reverse the decisions of the two lower courts. The distinguishing factor, according to learned counsel, is that the inspection of the disputed land by the trial court and the evidence taken thereat showed that the appellant was clearly entitled to exclusive possession of distinctly defined area of the land in dispute. However, when we asked learned counsel to show on the sketch plan the area for which the appellant obtained judgment, the attempt made by learned counsel to do so was abortive and for that reason he asked that the case be remitted to the trial court for a retrial to ascertain the exact land which belongs to the appellant.
In response, learned counsel for the respondent contended that Titus Sogunle & Ors. v. Amusa Akerele (supra) does not help the appellant’s case because in that case, unlike the case on appeal, there was a plan which clearly defined the boundaries of the area claimed. He argued that the appellant in the case in hand had failed to prove his claim to the land in dispute and had not proved the boundaries of the area awarded to him. Reiterating the authorities relied upon by the Court of Appeal, learned counsel finally submitted that the Court of Appeal acted rightly in dismissing the plaintiff’s claim under the circumstances of the case.
It is clear from the judgment of the Court of Appeal that that court dismissed the claim of the plaintiff on two grounds which are:- Firstly, because the plaintiff had claimed a whole but proved only a part and, secondly, because the plaintiff failed to show how the boundary of the land in dispute fit with the area awarded to him. I shall consider the two points separately.
With regard to the first point, the Court of Appeal appeared to be under the erroneous impression that where a plaintiff, who claims a declaration of title to a parcel of land, fails to prove that he is entitled to the whole land claimed but, nevertheless, proves that he is entitled to a definite and ascertained portion of the land claimed, then as a matter of law he is not entitled to a declaration of title to the portion proved and that his claim ought to be dismissed. I think the judgment of Kingdon, C.J. in Ohene’s case relied upon by the Court of Appeal and also the judgment of Petrides, C.J. in the same case are capable of giving rise to that erroneous impression. In my view, the correct position of the law was stated by Graham Paul, CJ., in his leading judgment in the case under consideration at p.88 of the report:-
“In my view the Native Court with a claim by a plaintiff for a declaration of title to a certain piece of land was entitled, if the evidence justified it, to give the plaintiff a declaration of title as regards the land claimed only up to a certain line and dismiss the claim as regards the balance of the land claimed.”
It is trite law that in a claim for a declaration of title to a large parcel of land, the court may grant declaration, if the evidence justifies it, over a smaller area of the land claimed. See Owon v. Eto Ndon & Ors. 12 WACA 71, Josiah Sobanjo v. Adeshina Oke & Anor 14 WACA 593, Titus Sogunle & Ors. v. Amusa Akerele & Ors. (Supra) . In the recent case of Mogo Chinwendu v. Nwangegbo Mbamali & Anor. SC. 72/1979 (unreported) delivered on 28th March, 1980, Obaseki, JSC., stated the law aptly in his judgment:-
“Even where a plaintiff succeeds in establishing a title to a smaller area than that claimed, it is the law that the court may grant him a declaration in respect of that smaller area.”
Now in the case on appeal, the trial court found, and there is ample evidence to support the finding, that the appellant has been in exclusive possession of part of the land in dispute while the respondent has been in exclusive possession of the other part. That being the case, either party is entitled to a declaration in respect of the part or other part in his possession provided the boundary of either part can be ascertained. In its endeavour to identify and demarcate the respective part granted to the parties, the trial court observed as follows:-
“Our sketch map of the disputed farm land read in conjunction with inspection notes and observations and in consideration of the evidence before us make us find and declare that the western boundary line of the defendant’s land is along the Oloja family land, cutting across the plaintiff’s heaped stones land mark of Igbo-Okun, stretching South west wards to Obanla’s house at the outskirt of Isanlu Isin. The defendant had been very long or many years been occupying or in possession of the land using it or giving it to other users, and planted cocoa, kolanuts, palm trees, cashew, orange trees and some food crops.
The ages of the cocoa and kolanuts in the western side of Igbo-Okun forest area cannot be less than thirteen years according to our observations and as is rightly evidenced by the D.W.2. This defendant’s piece of land extends western wards to his Enyie’s farm land which is not disputed on the other hand we similarly find and declare for the Plaintiff upon the proponderance of evidence to the Plaintiff’s case, that the plaintiff’s line of boundary mark are all the farm lands at eastern side of Obanla’s house extending north east wards to and including the eastern side of Igbo-Okun forest area up to the valley boundary of Oloja family and Mahamadu’s land at the extreme Northern and eastern sides of Balaga farm area, Issalila, Odo-Obu, Deji Eiaikin Isolo farm land area, plaintiff’s Idodu Shrine land area, western side of Oke Olokuku land area and up to Okuta Agba at the outskirt of Isanlu-Isin. The plaintiff’s land is bounded at South Eastern, by Igban people.
The single young kolanut tree which is an offshoot of the dead kolanut tree in the Plaintiff’s land is owned by the Plaintiff and is declared for him. The locust bean trees, and palm trees in the Plaintiff’s family farm lands are owned by the Plaintiff’s family and is declared for that family. The Defendant’s stone and the cemented beacon put inside the Plaintiff’s family land and the purported shrine of the defendant opposite the Plaintiff’s Idodu Shrine are deliberate trespass to the Plaintiff’s family land and shall be abated.
ORDER: Subject to the piece of land found for and declared to the defendant as stated above, the defendant shall cease from trespassing the Plaintiff’s family land as declared for the Plaintiff. The defendant shall cease from tampering with the economic trees therein e.g. palm trees, and locust beans trees. The Defendant shall remove his recent stone cemented land. (sic) Mark and his purported shrine from the Plaintiff’s family land.”
I have pointed out earlier on that learned counsel for the appellant failed to show on the sketch plan the area of the part awarded to the appellant. It appears from the judgment of the trial court that the part of the land granted to either party cannot be ascertained with reasonable certainty. In spite of their commendable effort to determine and identify the part either party is entitled to, the judgment of the judges of the trial court does not show definite and precise boundary of either part of the land awarded to the parties. It follows therefore that judgment cannot stand.
Accordingly, the Court of Appeal, following Akinolu Baruwa v. Ogunsola & Ors. (Supra) and Akpan Obong Udofia v. Okon Akpan Udo Afia (Supra), acted rightly in setting aside the judgments of the lower courts on the simple ground that the area granted to either party is indefinite and unascertainable. However, having regard to the fact that the appellant is entitled to a portion of the land in dispute, I am of the opinion that it is not just and equitable to dismiss his claim.
For the dismissal of his claim may operate as an estoppel in that no further claim of ownership of any part of the land in dispute can be made by the appellant in any subsequent proceedings between him and the respondent. Being a representative action, the same estoppel would operate against all and every member of the Isolo of Isanlu Isin family in favour of all and every member of the Asanlu family: See the judgment of this court per Idigbe JSC., in Mogo Chinwendu v. Nwanegbo Mbamali (Supra). In my view, the proper order to make under the circumstances of the case is to remit the case to the trial court to ascertain the exact part of the land in dispute which belongs to the appellant and to the respondent respectively as was done in Akpan Obong Udofia & Anor. v. Okon Akpan Udo Afia & Ors. (Supra).
I appreciate that this is the second time the case will be remitted for a retrial. Although a third trial may obviously cause some inconveniences and hardship on the respondent, I do not think it would be doing injustice to him under the circumstances of the case. I may emphasise that the need for a second retrial is ascribed to the failure of the trial court to describe properly, either in its sketch plan or in its judgment, the boundaries of the parcel of land to which the declaration it made was tied. In this connection, it may be pointed out that, although a licensed surveyor’s plan is the best, if available, yet the absence of it need not be fatal to the claim if proper description of the land is available in the record: Alhaji Etiko v. M. Aroyewun 4 FSC 129.
In the result, I would partly allow the appeal. I would affirm the decision of Court of Appeal setting aside the judgments of the Ayangba Upper Area Court and of the Kwara State High Court. I would set aside, and it is hereby set aside, the order of the Court of Appeal dismissing the claims of the appellant in the trial court. Instead, I order that the case be remitted to Ayangba Upper Area Court for a retrial. I hope that court will have the benefit of a proper plan, which learned counsel indicated to us at the hearing of the appeal that their clients are willing to finance for the retrial, in order to ascertain the exact boundary of the land of either party and thereby to put a stop to these protracted litigations.
I assess costs at N150 in favour of the appellant.
C. IDIGBE, J.S.C.: I have had the advantage of reading in advance the judgment just delivered by my learned brothers, Bello and Aniagolu, JJSC. I agree entirely with the reasoning and conclusions therein for allowing this appeal in part; I, however, would like to add by way of footnote lest the impression may be gathered that the production in evidence of a survey plan of the land, the subject of a claim for title, is a sine qua non to an award in favour of such a claim. What is necessary, is that the land the subject of the award must, as My Lord, Aniagolu, JSC.; has stated, be ascertained with “definitive certainty”. This is not always possible in Customary or Native Courts where survey plans are not only usually unavailable to both the parties and the courts, but also not always comprehended by members of the tribunal. Accordingly, the High Courts and Court of Appeal have always upheld awards, by Customary or Native Courts, for declaration of title to land but which have not been tied to survey plans provided the area of the land which is the subject of the award can with certainty be ascertained. “The acid test” as stated by the former West African Court of Appeal and with which I am in respectful agreement – “is whether a surveyor, taking the record of proceedings (and judgment of the Native or Customary Court concerned), can produce a plan showing accurately the land to which title has been given – (See Ate Kwadzo v. Robert Kwasi Adjei (1944) 10 WACA 274 (per Kingdon, Harragin CJJ., and Coussey J.) (Brackets and underlining supplied by me.) If that can be done then this court, in my view, will uphold an award of title to land by a lower court although a survey plan to which the award can be tied has not actually been produced in evidence in the proceedings in question. This, however, is not the case in the appeal in hand.
As already stated, I would also allow this appeal and I agree with the orders as to retrial and costs proposed by My Lord, Bello, JSC.
A. O. OBASEKI, J.S.C.: My Lords, I have had the advantage of reading, in draft, the judgment of my learned brother, Bello, JSC., delivered a short while ago and for the reasons contained therein, which I need not repeat in this judgment, I would allow this appeal, set aside the judgment of the Federal Court of Appeal, the judgment of the High Court and the judgment of the Upper Area Court together with the costs awarded by all the courts, remit the case to the Upper Area Court for hearing de novo.
I consider it necessary to add here that the need to order a trial de novo has arisen from the absence of a proper description of the piece or parcel of land in dispute either by means of a properly drawn plan showing clearly and identifying the land in respect of which plaintiff was declared owner or a proper finding based on oral evidence showing or describing land marks along the boundaries of the land from which a licenced land surveyor and indeed any one going on the land can identify the parcel of land adjudged in favour of the claimant/plaintiff/appellant. I would urge on all inferior courts the need, where no pleadings are ordered and plans of the land claimed are not tendered, inspection of the locus in quo is carried out, to include in its notes of inspection details of the boundary marks observed in confirmation of the evidence given at the hearing so as to have a full and detailed description of the boundaries of the land to which the declaration is tied on record. Where sketch plans are prepared by the court following an inspection of the locus in quo the plan should be readable, clear, precise and accurate so as to obviate the difficulty which confronted the appellants’ counsel when he found himself unable to identify and indicate to us from the sketch plan the parcel of land in respect of which the appellant was declared owner.
Much as a plan prepared by a licensed surveyor is desirable, it cannot be regarded as an absolute necessity in every land case. It is not an absolute necessity (Ebile etc. v. Onwugbonu FSC. 124/62 decided on 21/6/1963 (unreported)) if credible, intelligent, observant and knowledgeable witnesses are available and produced to adduce evidence of description and identity of the land in respect of which a declaration of ownership is sought. If insistence is placed unduly on the filing and production of plans in land cases, poor persons may be inhibited from seeking protection of their rights in the courts of the land by the high professional fees the licensed surveyor is obliged to charge for his services.
The standard of proof necessary to grant a declaration of title to land as regards certainty of land is universal and applies equally to the superior courts as well as to the inferior courts and the finding of the courts must pass the test stated in WACA in the case of Atekwadzo v. Robert Kwasi Adjei 10 WACA 274 that is that a surveyor, armed with the record and going on the land be able to produce an accurate plan of such land.
Subject also to the above comments, I am in agreement with my other learned brothers who heard this appeal and whose judgments I have had the privilege of reading in advance.
I hereby allow the appeal and concur in the order made by my learned brother, Bello, JSC.
ESO, J.S.C.: I have had the advantage of reading in advance the judgment which has just been read by my Lord, Bello JSC., I agree with the reasons and conclusion reached in the judgment aforesaid. The decision of the Federal Court of Appeal setting aside the judgment of the Ayangba Upper Area Court and of the Ilorin High Court is hereby affirmed. The order of the Federal Court of Appeal dismissing the claim of the appellant in the trial court is set aside. The case is remitted to the Ayangba Upper Area Court for retrial.
Costs awarded are as contained in the aforesaid judgment of my Lord, Bello, JSC.
A. N. ANIAGOLU, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by the learned Presiding Justice, Bello, JSC., and I agree with the judgment.
I would only like to point out that the necessity for land in respect of which a declaration for title is to be made to be ascertained with definitive certainty, applies with as much force to a court presided over by trained lawyers as it applies to a court presided over by laymen, such as some Customary Courts and Area Courts, and that the standard of proof required by law before such a declaration is made is the same in all the courts. Where that standard is not reached an appeal court will not gloss over it merely because the trial of the case was conducted in a court not presided over by trained lawyers.
The present case is one which eminently needs that a survey plan be made by a licensed Surveyor properly indicating the areas claimed by the parties so that the court in giving its judgment for title does so in relation to a clearly defined area in the plan over which the party in whose favour the declaration has been made has discharged the onus of proof placed on him by law. I would, therefore, not merely hope that Ayangba Upper Area Court will have the benefit of a proper plan for the retrial but that a proper survey plan be made by a licensed Surveyor showing clearly the lands claimed by the parties as hereinbefore stated.
It is often said that why great latitude must be given to Native Court cases (see Ajayi v. Aina 16 NLR 67; and in this con this would include Customary Courts and Area Courts) is, among others, to save expense for the parties who are often impecunious village dwellers. This is undoubtedly so in many cases. But, it is not so in all cases, for, in some cases such as the present one, the parties are put to far greater expense in the long run. In the instant case, the parties have fought the case up to this court only to painfully have to go back and start afresh, an exercise from which they would have been saved if only a licensed Surveyor had produced a proper plan before the Ayangba Upper Area Court and that Court affixed its declaratory judgment to a specified area on the plan. Had this been done the parties might not have been minded to go on appeal and, upon advice of their counsel, might have preferred to abide by the judgment of that court. There is no love lost between justice and convenience, and as it is, the case must go back for the proper thing to be done.
I would, therefore, partly allow the appeal with costs as decreed in the judgment of the learned Presiding Justice, Bello, JSC.
Other Citation: (1980) LCN/1097(SC)
