Dudu Addah & Ors V. Hassan Sahi Ubandawaki (2015)

LAWGLOBAL HUB Lead Judgment Report

I. T. Muhammad, JSC

I have had the privilege of reading in draft, the Judgment just delivered by my learned brother, Fabiyi, JSC. I am in agreement with him in his reasoning and conclusions. My Lords, in an action which seeks for declaration of title to land, the burden of proof of the identity and boundaries of the land in dispute is squarely on the claimant which can be discharged either by oral evidence or by survey plan showing clearly the area to which his claim relates. It is thus, necessary for a plaintiff who claims declaration and injunction to properly and unmistakeably identify the land in dispute in view of the order for injunction which cannot certainly be granted in respect of an undefined area. Where he fails to prove the 2 boundaries of the land he asserts to be in dispute or did not satisfactorily describe the dimension and locality, or the description contradicts the plan, the proper order to make is one of dismissal of the claim. See: BARUWA VS. OGUNSHOLA [1938] 4 WACA 159; OKE VS. EKE [1982] 12 SC. 232; OKORIE VS. UDOM [1960] SCNLR 326. In OKE VS. EKE [Supra] it was held, inter alia: “A long line of authority have established that a plaintiff seeking a declaration of title to a piece or parcel of land must be able to prove its identity with certainty. The test laid down in kwadzo vs. adjei 10 WACA [1944] page 274 still holds good today. In that case the Court stated as follows: The acid test is whether a Surveyor, taking the record could produce a plan showing accurately the land to which title has been given” See further: UDOFIA VS AFIA 6 WACA [1940] page 216. In the instant appeal, it is clear from the evidence that nothing cogent was placed before the trial Court to entitle the appellants to their claims. As a matter of fact, none of the [9] nine witnesses who testified for the plaintiffs gave clear evidence on the boundaries of the land in dispute as pleaded in paragraph 6 of the amended statement of claim. My Lords, I have noted that the learned trial judge in his Judgment tried to extend the description of the land in dispute different from what was pleaded and upon which evidence was given. Again, he made reference to a visit to locus inquo to the land in dispute. There is no record of the said visit to the locus inquo in the proceedings but only in the Judgment. I am afraid, the learned trial judge entered into the arena, which of course, he is if not entitled to do. A case before a Court of law belongs to the parties and not to the Court as a court is not competent to make a case for any of the parties. The Judge is an umpire and must limit himself to what is pleaded and established by the parties before him. Otherwise, he will be accused of going against the known and well cherished principles of fair trial. See: AKINSUMI VS. ADIO [1997] 8 NWLR [part 516] 277 at page 292-A. For the above reasons and the more detailed ones proffered by my learned brother, Fabiyi, JSC, in his Judgment, I too, find the Judgment of the Court below, unassailable and cannot be faulted. The appeal lacks merit and I dismiss same. I abide by consequential orders made in the lead Judgment including order on PAGE| 23 costs.

SC.7/2012