Joseph Olusanmi V. Dayo Henry Oshasona (1992)
LawGlobal-Hub Lead Judgment Report
E. OGUNDARE, J.S.C.
The trial of the action leading to this appeal commenced in the Divisional Area Court Grade 1 holding at Kabba then in Kwara State. The matter had been remitted by the Upper Area Court Lokoja to the Divisional Area Court Kabba for retrial, following a successful appeal by the defendant (now appellant) against the judgment of the Area Court that first tried the action.
At the retrial before the Divisional Grade 1 Court evidence was led on both sides and the trial Court inspected the land in dispute. In a subsequent judgment it found for the plaintiff and awarded the land in dispute to him. The defendants being dissatisfied with that judgment appealed once again to the Upper Area Court Ilorin which Court allowed the appeal, quashed the decision of the trial Divisional Area Court, Kabba and ordered yet another rehearing before the Omu-Aran Upper Area Court, all in the then Kwara State. The plaintiff being aggrieved by this decision, appealed to the High Court of Kwara State sitting in its appellate jurisdiction at Ilorin.
That Court, after listening to arguments from learned counsel for the parties, allowed the plaintiff’s appeal, set aside the judgment of the Upper Area Court Ilorin and restored the judgment of the Divisional Area Court Grade 1 Kabba. The defendant was displeased with the High Court’s judgment and appealed to the Court of Appeal sitting in Kaduna.
That Court [Maidama J.C.A, Akpata and Babalakin, JJ.C.A, (as they were then)] dismissed the appeal and affirmed the judgment of the appellate High Court. The defendant, with leave of this Court granted on 17th April, 1989, has now further appealed to this Court upon 4 original and 3 additional grounds of appeal. And in accordance with the rules of this Court learned counsel for the parties filed and exchanged their respective briefs of argument. A reply brief was also filed on behalf of the appellant.
In the appellant’s brief Usoro Esq. of counsel for the appellant, abandoned the 4 original grounds and relied on the 3 additional grounds of appeal which, without their particulars, read as follows:-
“Ground 5
The Court of Appeal erred and was misdirected both on the facts and in law in holding that ‘the land in dispute is known to both the parties and the Court’ and ‘is ascertainable.’
Ground 6
The Court of Appeal erred and was misdirected both in law and on the facts when it held that the inspection of the locus in quo by the trial Area Court was properly conducted and that the trial Area Court was right in relying on the ‘evidence of 18 men found on the land in dispute.’
Ground 7
The Court of Appeal erred and was misdirected both on the facts and in law in holding that ‘even if the reference to the evidence of the 18 men is expunged from the record, there is still ample evidence to find in favour of the Respondent.’”
In the said brief learned counsel formulated three questions as calling for determination in the appeal, that is to say:
“1. Is it possible to determine with certainty, based on the available evidence, the full identity including in particular the boundaries, size and extent of the land in dispute
- Was a proper visit to the locus in quo conducted by the trial court and was the trial court correct in relying on the evidence of the 18 men who were arraigned before the Court on inspection day ………….
- Were there other pieces of evidence in support of the trial Court’s judgment granting the land to the Respondent”
In the respondent’s brief Chief Oshe of counsel, for his part set out 5 issues as calling for determination. The first 3 of these issues in my respectful view relate to the issue of the certainty of the land in dispute raised in question 1 in the appellant’s brief. The other 2 issues are similar to questions 2 and 3 in the appellant’s brief. For the purpose of my consideration of this appeal I shall adopt the questions as formulated in the appellant’s brief .
QUESTION I
Mr. Usoro of counsel for the appellants both in his main brief and oral argument in Court submitted that the boundaries of the land in dispute were not, from the record, ascertainable; the trial Court was therefore in error to have awarded the land in dispute to the respondent. He further submitted that the onus was on the respondent as plaintiff to show clearly the area of land to which his claim related either by giving oral description of the land that any Surveyor acting on such description could produce the plan of the land he claimed or by having a plan recording all the features of the land and showing clearly its boundaries. Learned counsel submitted that the respondent had failed to establish the boundaries and all the description of the land in dispute in either of the two said methods. He referred to various portions of the record and observed that the evidence for the respondent was conflicting and did not tally with the appellant’s description of the land in dispute. Learned counsel referred the Court to a number of cases particularly Awore v. Owodunni No.2 (1987) 2 NWLR (Pt.57) 366 at 371 and 373 to support his submissions.
Chief Oshe for the respondent, both in his own brief and in the oral submission before us, submitted that the evidence of the respondent and that of his first witness taken together aptly described the land in dispute. He observed that the trial Court and the parties visited the land and that each gave it different name. Learned counsel then submitted that the identity of the land in dispute was proved. Learned counsel further submitted that the calling of the land in dispute by different names by the parties was not fatal to respondent’s case nor did it affect the issue of the certainty of the land in dispute. He submitted that a plan was not necessary in all land cases moreso where both parties knew the land in dispute. Learned counsel submitted in his brief that Awote v. Owodunni (supra) relied on by learned counsel for the appellant was not on all fours with the present case. He also submitted that some of the other cases showed in appellant’s brief were distinguishable from the present case. He argued that it was incorrect to say that there were irreconcileable material contradictions in the boundary descriptions given by the respondent and his witnesses.
As rightly pointed out by both learned counsel in their respective’ briefs, the main issue calling for determination in this appeal is the question of the certainty of the land in dispute. The issue of the certainty of the land in dispute came up for the first time in the Court of Appeal. The present appellant did not raise it either in the Court of trial nor in the appellate Upper Area Court nor in the appellate High Court. As no objection would appear to have been taken to the raising of this question for the first time in the Court of Appeal; I will say no more on this point.
It has been held by a long line of cases beginning with Baruwa v. Ogunshola (1938) 4 WACA 159 that the onus lies on the plaintiff who seeks a declaration of title to show clearly the area of land to which his claim relates. And in Kwadzo v. Adjei (1944) 10 WACA 274, it was held – and this has been followed in a number of cases thereafter – that the plaintiff can discharge this onus by such oral description of the land that any surveyor acting on such description could produce a plan of the land in dispute. As the West African Court of Appeal put it:
“the acid test is whether a surveyor, taking the record could produce a plan showing accurately the land to which title has been given.”
This Court in Awote v. Owodunni (2) (supra) cited the earlier cases with approval. In that case Oputa J.S.C. delivering the leading judgment said on page 371 of the Report and I quote:
“There is no doubt that the onus – (and a very heavy onus it is) is on a plaintiff/claimant asking for a decree of declaration of title to show clearly the area of land to which his claim relates. Baruwa v. Ogunshola (1938) 4 WACA 159 refers. The plaintiff can do this by such oral description of the land that any surveyor acting on such description can produce a plan of the land he claims – See Kwadzo v. Adjei (1944) 10 WACA 274. Another and perhaps better way of proving the identity and extent of the land claimed is by filing a plan reflecting all the features of the land and showing clearly the boundaries: Udofia & Another v. Afia & Others (1940) 6 WACA 216: Udekwu Amata v. Udogu Modekwu (1954) 14 WACA 580. Where the parties own land along a common boundary, it is necessary to show and prove the precise boundary features along that common boundary: Okorie v. Udom and Others (1960) 5 F.S.C. 162: (1960) SCNLR 326.”
The above passage sums up in a nutshell the law as it relates to the question of certainty of the land in respect of which a decree of title is being claimed.
Awote v. Owodunni (supra) has been referred to in both briefs in this appeal. In that case the plaintiff in the Ijebu-Ode Grade A Customary Court claimed declaration of title in accordance with customary law to a piece of land situate, lying and being along Ijebu-Ode/Ibadan road at Ijebu-Ode at the back of Chief T.A. Odutola’s compound. At the hearing before the Customary Court, six plans were tendered in evidence, some of which were made during the pendency of the proceedings and some had already been used in previous proceedings in which the defendants were parties. The 4th plaintiff in his testimony at the trial said:-
“I know the land in dispute, lying being and situate along Awokoya Street near one Badamu’s boundary with Oliwo Agbadagbodo family. Awokoya Street is on Agbadagbodo family land. This Agbadagbodo family land starts from the back of Chief T.A. Odutola’s compound stretching up to Iwesi people’s land………………”
On the plans tendered, the area shown green in Exhibit A, which is the area marked “land in dispute” reflected that both the plaintiffs and the defendants were co-owners of the land. As for the defendants Exhibit Z tendered by them also showed farm belonging to the plaintiffs on the land in dispute Exhibit Z was made one year after the case started. The learned President of the Customary Court considered the evidence and dismissed the plaintiffs claims. On appeal the appellate High Court allowed the appeal and granted the plaintiffs’ claims. The Western State Court of Appeal however, allowed the appeal to it and restored the Customary Court’s judgment. On the further appeal to this Court, it was found that the oral evidence and the plans could not be married and since the boundaries were not described in any statement of claim or defence, there was no reference point to determine credibility. The appeal was allowed and a retrial ordered having regard to the circumstances of the case.
What are the facts in the case on hand The respondent gave evidence and described the land he was claiming as follows:-
“That the land started from Kulubo to Ibaru. That we share boundary with Koro in western side of the land, river Kulubo in the eastern pan of the land. In the northern part, we have boundary with one Kayode family.”
His first witness whom he claimed knew the boundaries, testified thus:
“I share boundaries with Barn, Ilorin, Ogba Aro and Ipo.”
The respondent re-examined him and this is what transpired:
“Plaintiff – P.W.1: Could you remember that we share boundary with Koro, river Kulubo and the Kayode family in the northern part of the land and the public high way from Koro to Egbe in the southern side of the land and not those that helped you settle matters in the town as you did mention.
P.W.1 – Plaintiff: Yes, you said the correct words.”
His second witness Kayode Oba testified thus:
“The land in dispute belongs to the family of pit, called Ibaru and the land is called Kulubo. He shares boundary with Koro, I am from Ikpo family and I know the history of the land. The boundary is on the road from western side of Koro. River Kulubo is also a boundary with the pit in Esai side.”
It would appear from the evidence of these three witnesses that the land claimed by the respondents lies along the road to Koro from Egbe and that the land is bounded on the western side by the land of Koro people whilst river Kulubo marks the eastern boundary and in the northern part there is boundary with Kayode family. The southern part is bounded by the road leading from Koro to Egbe as testified to by P.W.2 and as confirmed, under re-examination, by P.W.1.
The Court of Appeal before whom the issue of the certainty of the land being claimed was first raised, has this to say in the lead judgment of Babalakin J.C.A. (as he then was):
“It must be remembered that the claim of the Respondent in respect of the land in dispute was before an Area Court which is the equivalent of a customary or native Court in other parts of the Federation.
The Respondent in his evidence before the Area Court gave boundaries of the land in dispute. The Judge and members of the trial Court visited the land in dispute in company of both the Respondent and the Appellant. There is therefore no doubt that the land in dispute is known to both the parties and the Court. In circumstances such as this, the land is ascertainable. See case Garba v. Akacha (1965) NMLR 62.”
On the evidence adduced by the respondent and his witnesses I have no reason to disagree with the conclusion reached by the Court of Appeal. The evidence sufficiently shows the four boundaries of the land being claimed and I am convinced that the evidence satisfies the acid test laid down in Kwadzo v. Adjei (supra) and approved by this Court in Awote v. Owodunni (No.2) (supra).
The conclusion would have ended the consideration of the issue of the certainty of the land but for other points raised in argument of learned counsel for the parties. The first relates to the passage in the judgment of Babalakin J.C.A. wherein he said:
“In his brief of argument learned counsel for the appellant admitted as follows:-
‘That the land was definitely ascertainable.’
To my mind, this candid admission is not a mere coincidence but a terrible pattem of fact”
Learned counsel for the respondent has argued in his brief that in the appellant’s brief filed in the Court of Appeal it was conceded that “the land was definitely ascertainable” and that in the light of this admission the appellant had abandoned his complaint that the land in dispute was not ascertainable. This provoked the appellant filing a reply brief in which it was contended that the Court below misrepresented a submission made to it in the appellant’s brief before that Court.
The introduction of that issue in the respondent’s brief before us is rather unfortunate in that the issue (that is, issue 2 as formulated in respondent’s brief) on which it is based, does not arise from the grounds of appeal filed by the appellant particularly Ground 5 nor was it argued in the appellant’s brief. I would therefore discountenance all arguments in the respondent’s brief and in the reply touching on what would amount to a complaint of misdirection on the part of the Court below.
In the appellant’s brief much fuss has been made of alleged contradictions in the evidence in support of the respondent’s case on the question of boundaries of the land claimed by the latter. I have examined this complaint thoroughly and I must say that I do not find such contradictions in the evidence of the witnesses that could be said to whittle down the fact that the land claimed by the respondent is bounded in the north by the land of Kayode family, in the south by the highway from Koro to Egbe, in the east by the Kulubo river and in the west by the land of Koro people. That, in my respectful view, is the only reasonable inference that can be drawn from the evidence at the trial of the respondent and his first two witnesses.
It was argued also in the appellant’s brief that the evidence as to boundaries of the land in dispute by the respondent and his witnesses contradicted that of the appellant and his witnesses. I do not see how this affects the discharge of the onus on the respondent to prove with certainty the land he lays claim to. It must be borne in mind that this is not a case of boundary dispute between two families or two persons. It is not respondent’s case that he has boundary with the appellant. Appellant presumably knows the land he was describing in his evidence that description is not binding on the respondent. On the visit to the locus in quo, respondent look the trial Court and the appellant to the land he claimed and which he and his witnesses described in evidence. Appellant did not dispute that that was the land in controversy between him and the respondent I can find no substance in the appellants complaint that the land claimed by the respondent, was not described with certainly at the trial. Question (1), is, Therefore, resolved in respondent’s favour. :-
INSPECTION OF LOCUS:
It is argued in the appellant’s brief that there was no properly conducted visit to the locus in quo by the trial Area Court. It is submitted that a properly conducted visit to and inspection of the locus in quo was paramount and crucial in an action, such as this, where the property in dispute was not properly defined in evidence. The case of Olubode v. Salami (1985) 2 NWLR (Pt.7) 282, 295 is cited in support of this submission. In submitting how a properly conducted inspection should be carried out, learned counsel for the appellant in his brief referred to Section 76 of the Evidence Act. I must pause at this stage to observe that the Evidence Act does not apply at this stage to an area Court such as the trial Court in this case is. Another complaint in respect of the manner the inspection was carried out relates to the reference in the judgment of the trial Court to what 18 men said to have been found on the land in dispute at the time of inspection, said to the trial Court.
Needless to say that learned counsel for the respondent in his brief does not agree with the submissions in the appellant’s brief on this issue. He argued in favour of the propriety of the conduct of the inspection and the reference in the judgment to what the men found on the land at the time, said.
The Court of Appeal per Babalakin J.C.A. observed in its judgment:
“Secondly there is nothing wrong for a native or Customary Court such as is the Area Court before which this case was heard to make remarks in its judgment about what it actually saw when it visited the locus in quo particularly when such visit was done in the presence of both parties to the dispute without its recording same formally on record.
Even in a Court of record such a situation has been allowed. see case of Nwizuk & Ors. v. Chief Eneyok 14 WACA 354 at 355 where a High Court Judge in his judgment made reference to what transpired at the locus in quo and yet the West African Court of Appeal refused to quash the proceedings for the failure to make a record of the inspection. It must also be emphasised that the primary purpose in the Area Court is to do substantial justice.
Finally, even if the reference to the evidence of these eighteen tenants found on the land in dispute is expunged from the record there is still ample evidence to find in favour of the Respondent. Inter alia, there was the evidence of a tenant who had been fanning on the land in dispute for about 40 years who confirmed that the land in dispute belongs to the respondent; there was the traditional evidence of ownership of the land of the respondent which the Court believed and preferred to that of the Appellant; and worse still there was the evidence of D.W.5 called by the appellant to support his case who said that the land did not belong to the appellant’s family.
I agree entirely with the views expressed in the passage above. I find no substance in the appellant’s complain on the conduct of the inspection of the land in dispute by the trial Area Court. The purpose of an inspection is not to substitute “the eye for the ear” but rather to clear any ambiguity that may arise in the evidence or to resolve any conflict in (he evidence as to physical facts. Olubode v. Salami (supra) cited by learned counsel for the appellant does not support the contention he has put forward in his brief. To the extent that that case was based on section 76 of the Evidence Act, it is inapplicable to the case on hand. In other respects Olubode v. Salami is more in favour of the respondent than the appellant. As I have earlier held, the land being claimed by the respondent was adequately described with certainly in the evidence led in support of his case. I agree With the observation of he Court of Appeal in the passage cited above in respect of the statement Said to lave been made by the 18 men found on the land. The trial Area Court had remarked thus in its judgment:
“The Court from ‘the evidence of the defendant found that his, three families he represent got no land at Kulubo. The land is therefore awarded to the family of the plaintiff since the plaintiff has been able to establish his case with his witnesses even the P.W.3. Ojuekaiye Ayindere who was on the land in dispute for the past forty years without any challenge from the defendant and the 18 men who were arranged before the Court on the inspection day farming on the land at Kulubo, and paid tribute on the land to the plaintiff and without any challenge again from the defendant and his three families.”
If the statement said to have been made by the 18 men is expunged from the, record there is still sufficient evidence on record to support the conclusion arrived at by the trial Court – See: Nwizuk v. Eneyok (1953) 14 WACA 354, 355. There is the evidence of the tenants called by the respondent in support of his case. In any event, it cannot be said that the trial Court was wrong in observing that at the time of its inspection it found 18 men on the land who claimed to have been put there by the respondent’s family and to whom they paid tribute. What it could not do was to base its judgment solely on the statement of these 18 men without regard to the evidence adduced at the trial. The case must still primarily be decided on the evidence properly given.
On a calm view of the evidence adduced at the trial of this case and bearing in mind that the evidence of D.W.5 was in no way helpful to the appellant’s case, I am not prepared to say that the trial Court was wrong in accepting the evidence for the respondent and granting his claim. I find no substance in this appeal which I have no hesitation whatsoever in dismissing. I affirm the judgment of the lower Court and award to the respondent N1,000.00 costs of this appeal.A. G. KARIBI-WHYTE, J.S.C: The Court of Appeal, Kaduna Division, on the 30th June, 1987 dismissed the appeal to that Court by the appellants. This is a further appeal to this Court by the appellants against the decision of the Court of Appeal.
I have read the judgment of my learned brother Ogundare J.S.C. I agree entirely with him that this appeal should be dismissed, and the decision of the Court below should be affirmed.
My learned brother Ogundare, J.S.C. has stated the facts in considerable detail. I adopt his statement of the facts. I only wish to emphasise those aspects which concern my consideration of the case. However, I consider it helpful to trace the genesis of the case in order to elucidate the central issues necessary for determination in the instant appeal.
Respondent was plaintiff in the Grade 1 Area Court, Kabba, now in Kogi State, but formerly Kwara State. He brought an action against appellant, as defendant, claiming damages from the appellant, for driving away persons who he had put on the land in dispute to work for him. Respondent claimed that the land was his own. Appellant denying the liability also claimed that the land in question was owned by three families including his own. The trial Court heard evidence, including witnesses on both sides, visited the locus in quo, and finally gave judgment for the Plaintiff/Respondent.
Appellant/Defendant appealed to the Upper Area Court, Ilorin. One of his grounds of complaint in a sworn affidavit to that effect, was that the record of proceedings was inaccurate. Respondent denied the allegation in his reply. The Judge of the trial Court wrote to the Upper Area Court denying the allegation. The Upper Area Court allowed the appeal and sent the case for retrial in another lower Court. The reason given was that the letter of the trial Judge was not a sworn affidavit, and therefore was not a refutal of the allegation by affidavit that the record of proceedings was inaccurate. Respondent herein appealed to the Ilorin High Court.
The High Court in the exercise of its appellate jurisdiction held that the Upper Area Court was in error, set aside the judgment ordering a retrial, and affirmed the judgment of the trial Judge. Appellant appealed against the judgment to the Court of Appeal. The Court of Appeal dismissed the Appeal and affirmed the judgment of the High Court. The defendant has now appealed against that decision. This is the appeal now before us.
Appellant/Defendant filed four original and with leave of this Court granted on 17/4/89 three additional grounds of appeal numbered, 5, 6, 7. In arguing the appeal Appellant relied on the three additional grounds of appeal and abandoned the four original grounds.
Learned counsel to the parties, filed and exchanged briefs of argument. Appellant in addition filed a reply brief. I have examined the issues for determination formulated by counsel in their briefs of argument. I find the questions formulated in the brief of argument of learned counsel to the appellant more consistent with the issues raised in the grounds of appeal. Besides, the three issues raised therein have taken into account all the five issues formulated in the brief of argument of the learned counsel to the respondent. I therefore adopt the appellant’s three issues for determination. They are as follows:-
“1. Is it possible to determine with certainty, based on the available evidence, the full identity including in particular the boundaries, size and extent of the land in dispute
- Was a proper visit to the locus in quo conducted by the trial Court and was the trial Court correct in relying on the evidence of the 18 men who were arraigned before the Court on inspection day …
- Were there other pieces of evidence in support of the trial Court’s judgment granting land to the Respondent”
It seems to me obvious that by affirming the decision of the Court below, which upheld the judgment of the appellate High Court, the result is the upholding of the judgment of the trial Grade 1 Area Court, Kabba. The formulation of the issues for determination in the instant appeal seems tome to lead to this conclusion.
It is therefore pertinent to outline the decisions affirming it.
In its judgment, the trial Court in awarding the land in dispute to the plaintiff/respondent, held that on the evidence before it plaintiff/respondent has established his claim to the land in dispute. The reason was that:
……. the plt. has been able to establish his case with witnesses even the P.W.3. Ojuekaiye Ayindere who was (sic) (on) the land in dispute for the past forty years without any challenge from the deft, and the eighteen men who were arraigned before the Court on the inspection day farming on the land at Kulubo, and paid tribute on the land to the pit. and without any challenge again from the deft, and his three families” – See p.22 lines 21-28.
With respect to the claim of the Defendant! Appellant, the trial Court observed with respect to his title according to Oyi Customary law at p.21, lines 31-33, to p.22 lines 1-4, as follows:-
“Because the family of the pit. called Ibaru family who owned the land, while the deft, said, three different families jointly own a piece of land which was never come across in history of Oyi, because each family owned a separate land. It was strange to the Court to see that the deft. said he was representing three different families.”
On the evidence of the defendant as to his boundary men the trial Court observed as follows – at p.22 lines 4-17:
“The Court found that the deft. firstly said Esia was never in existence and later said he shared boundary with Esia which the pit belongs to. The evidence of the D.W.5, lroko Kekere contradicted the evidence of the deft. He said the deft. had no land on the disputed land, that the deft. was from Oyo Family and he shared boundary with the defts. family from Oyo and he was from Odo Aga family. The only man who came from Koro on the inspection day said he has no boundary with deft, but got boundary with Oyi people. He was by name David Isaiah. The deft, also failed to call Elisha Jemilayo whom he said he shared his boundary with in Koto side.”
The trial Court then concluded as follows – p.22 lines 18-19:
“The Court from the evidence of the deft, found that his three families he represent got no land at Kulubo.”
Summarily stated, the trial Court relied on the customary law of Oyi, which is well known to them and in respect of which they do not require evidence and are entitled to apply, that the claim of defendant that three different families jointly own a piece of land, namely the land in dispute, was unknown to and contrary to the customary law of the Oyi people. Again, the evidence of possession by plaintiffs, and payment of tribute to him by tenants especially P.W.3 Ojuekaiye Ayindere for upwards to forty years, remain uncontradicted. On the other hand evidence by the defendant of boundary men were contradictory. In fact he failed to call a particular boundary man Elisha Jemilayo, he relied upon.
This is the judgment affirmed.
I shall now consider the issues for determination formulated in this appeal.
Issue 1.
I have already stated the of this issue, which questions the validity of the judgment for determining the claim of the plaintiff on the available evidence, when the full Identity of the land in dispute, the particulars of the boundaries, size and extent of the land, could not be determined with certainty.
Both in his brief of argument and his oral argument before us, Mr. Usoro for the appellant submitted that since the boundaries of the land in dispute were not on the evidence on the record ascertainable, the trial Court was in error to have awarded the land in dispute to the plaintiff/respondent. He submitted that the onus was on the plaintiff/respondent to establish clearly the area of land to which his claim related either by giving oral description of the land to enable any surveyor acting on such description to produce the plan of the land claimed. It was his contention that plaintiff/respondent failed in this regard. Learned counsel referred to and relied on portions of the record of proceedings to support his contention. He also relied on Awote v. Owodunni (No.2) (1987) 2 NWLR (Pt.57) 366 at pp.371- 373.
In answer to Mr. Usoro, Chief Oshe, learned counsel to the respondent submitted that the land in dispute was sufficiently described in the evidence of the plaintiff/respondent and that of P.W.1. He pointed out that the trial Court, and all the parties called the land in dispute by different names did not affect its identity or the issue of its certainty. It was submitted that a plan was not necessary since neither the identity nor the certainty was in issue before the Court of trial. Learned counsel distinguished Awote v. Owodunni (No.2) (supra) from the instant case. He submitted that it was not correct that there were irreconcileable material contradictions in the descriptions of the boundaries by the respondent and his witnesses.
It is pertinent to observe at this point that the issue of the certainty of the land in dispute was not raised in any of the Courts until it was raised in the Court below. Accordingly it was not an issue before the trial Court – See Fadiora & Ors. v. Gbadebo & Ors. (1978) 3 S.C. 219. The parties can be presumed not to have regarded the certainty of the land as an issue.
Now what is the certainty complained of It seems to me in this case to be the identity of the land and the boundaries of the land in dispute. There has been no further dispute about the boundaries which was resolved in favour of the plaintiff by the trial Court.
It is well established and settled by a long line of cases extending to more than half a century in our Courts that the onus lies on the plaintiff who seeks a declaration of title to show clearly the area to which his claim relates – See Baruwa v. Ogunsola (1938) 4 WACA 159; Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325 S.C.; Onwuko v. Ediala (1989) 1 NWLR (Pt.96) 182 S.C. In Kwadzo v. Adjei (1944) 10 WACA 274, the West African Court of Appeal held that plaintiff can discharge the burden by such oral description of the land that any surveyor acting on such description could produce a plan of the land in dispute. The test of such evidence was graphically put by Kingdon C.J 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.”
This test has been applied in subsequent cases. The recent decision of this Court in Makanjuola v. Balogun (1989) 3 NWLR, (Pt.I08) 192 followed the decision in Kwadzo v. Adjei (supra).
In Awote v. Owodunni (No.2) (supra) relied upon by learned counsel to the Appellant, Oputa J.S.C. cited Baruwa v. Ogunsola (supra) and Kwadzo v. Adjei (supra), Udofia & Anor v. Afia & Ors. (1940) 6 WACA 216; Amata v. Modekwu (1954) 14 WACA 580. In that case he also cited Okarie v. Udom & Ors. (1960) 5 FSC 162 (1960) SCNLR 326, for the proposition that where parties own land along a common boundary, it is necessary to show and prove the precise boundary features along that common boundary. The issue before us is the certainty or identity of the land in dispute. The parties have called the same land by different names. Awote v. Owodunni (Nq.2) (supra) is different from the case before us.
I now turn to the evidence of the plaintiff/respondent describing the land he was claiming. He stated in evidence as follows – at p.2 lines 18-23:
“That the land started from Kulubo to Ibarn. That we share boundary with Koro in western side of the land, river Kulubo in the eastern part of the land. In the northern part we have boundary with one Kayode family.”
P.W.1 testified in chief in part as follows – at p.4, lines 15-17:
“I share boundaries with Baru, Ilorin Ogba Aro and Ipo.”
On re-examination by plaintiff as follows- p.4 lines 32 to p.5 lines 1-2:
“Could you remember that we share boundary with Koro river Kulubo, and the Kayode family in the Northern part of the land, and the public high way from Koro to Egbe in the Southern side of the land and not those that helped you settle matters in the town as you did mention. ”
P.W.1, in answer, p.5, line 3
“Yes, you said the correct words,
Again P.W.2 Kayode Oba; testified as follows – p.5 lines 13- 18:
“The land in dispute belongs to the family of plt. called Ibaru and the land is called Kulubo. He shares boundary with Koro. I am from Ikpo family and I know the history of the land. The boundary is on the road from western side of Koro. River Kulubo is also a boundary with the pit, in Esai side.”
The issue of the certainty of the land in dispute was first raised in the Court below. In resolving the issue Babalakin J.C.A. (as he then was) with whom Maidama, Akpata H.C.A. agreed, said; at p. 165 lines 4-14:
“It must be remembered that the claim of the Respondent in respect of the land in dispute was before an Area Court which is the equivalent of a customary or native Court in other parts of the Federation. The Respondent in his evidence before the Area Court gave boundaries of the land in dispute. The Judge and members of the trial Court visited the land in dispute in company of both the respondent and the appellant. There is therefore no doubt that the land in dispute is known to both the parties and the Court. In circumstances such as this the land is ascertainable – see case Carba v. Akacha (1965) NMLR 62.”
The evidence of Plaintiff and his witnesses sufficiently show the four boundaries of the land being claimed. This in my opinion satisfies the test laid down in Kwadzo v. Adjei (supra) which has been adopted and applied in subsequent cases. The conclusion reached by the Court of Appeal on the issue of certainty of the land is therefore borne out by the evidence before the Court.
I therefore find no substance in the contention of the appellant that the land claimed by the plaintiff/respondent was not described with certainty at the trial. I therefore accordingly resolve the first issue in favour of the respondent.
Issue 2 – Learned counsel to the appellant has attacked the visit to the locus in quo by the trial Area Court. It was submitted relying on Olubode v. Salawu (1985) 2 NWLR (Pt.7) 282 that a property conducted visit to and inspection of the locus in quo was crucial in an action of this nature where the land in dispute was not properly defined in evidence. Counsel referred to section 76 of the Evidence Act as stipulating the conditions for conducting an acceptable inspection of the locus in quo. It was submitted that the provisions of the Act were not complied with.
Learned counsel to the respondent in his submission supported the propriety of the inspection of the locus in quo: Learned counsel to the appellant has complained that the trial Court referred in the judgment to what the 18 men said to have been found on the land in dispute at the time of the inspection told the trial Court.
The Court of Appeal had in considering this point observed that:
“….. there is nothing wrong for a native or customary Court such as is the Area Court before which this case was heard to make remarks in its judgment about what it actually saw when it visited the locus in quo particularly when such visit was done in the presence of both parties to the dispute without its recording same formally on record. Even in a Court of record such a situation has been allowed- see case of Nwizuk & Ors. v. Chief Eneyok 14 WACA 354 at p.355 ….”
The learned Justice of the Court of Appeal went on to point out that even if the reference to the evidence of these eighteen tenants found on land in dispute is expunged from the record there was still ample evidence enabling a finding to find in favour of the respondent. The Court referred to
(i) The evidence of the tenant, P.W.3. Ojuekaiye Ayindere who had been farming on the land in dispute for about 40 years, who confirmed that the land in dispute belonged to the plaintiff.
(ii) There was also the traditional evidence of ownership of the land of the plaintiff which the Court believed, and preferred to that of the defendant.
(iii) There was the evidence of defendants’ witness D.W.5, who said that the land in dispute did not belong to defendants’ family.
It is well settled that unless so expressly provided and stated to be applicable, the provisions of the Evidence law do not apply to Native Courts, or customary Courts, as they are not known – See S.1(4)(c), Ogunnaike v. Ojayemi (1987) 1 NWLR (Pt.53) 760 S.C. The trial Area Court was therefore not bound by the provisions of section 76 of the Evidence Act.
The inspection of the locus in quo was carried out by the trial Court, as was required in Evoyoma v. Daregba & Ors. (1968) NMLR 389. It was admittedly carried out in the presence of both parties to the dispute.
Although the ideal practice is for the Court which conducted the inspection to record the notes of the inspection in the record book, Chief Aaron Nwizuk & Ors. v. Chief Waribo Eneyok & Ors. (1953) 14 WACA 354 has decided that absence of a record of the inspection of a locus in quo was not fatal to the validity of the judgment – See Musa Maji v. Mallam Shewu Shafi (1965) NMLR 33; Brigg. v. Briggs (1986) 5 NWLR (Pt.41) 362. The trial Court criticised for its failure to record notes of inspection is an Area Court which is not bound by the Evidence Law.
There is no doubt that the purpose of the inspection of the locus in quo is to clear any lingering doubts or ambiguities in the minds of the Court as a result of the oral evidence tendered. It is therefore not intended to substitute the eye for the ear, but rather to complement the auditory with the visual. It is to resolve any conflict in the evidence as to physical facts. This appears to have been done in this case.
The trial Court saw 18 men at the locus in quo who said that they were tenants of the plaintiff farming on the land and paying tribute. Although they referred to this evidence in the judgment, the trial Court not being bound by the Evidence Law will not suffer any prejudice by the failure to record the evidence – See Garba v. Akacha (1966) NMLR 62. The trial Court certainly did not rely solely on the evidence of the 18 men who told them that they were tribute paying tenants of the plaintiffs, who were farming on the land in dispute.
The trial Court still had the traditional evidence of ownership of the land in dispute by the plaintiff; the evidence of the two plaintiffs witnesses P.W.3 who had been on the land for about 40 years and P.W.2 Kayode Oba, the boundary witness to rely upon. Again there was the evidence of the defendant’s witness D.W.5, who gave evidence that the land in dispute did not belong to the defendants family. This is evidence of the defendant which strengthens the plaintiff’s case.
On due consideration of the evidence before the trial Court and the fact that the identity or certainty of the land in dispute was not in issue in the trial Court, it is difficult, if not impossible to do otherwise than to hold as the Court below did that the trial Court was right in accepting the evidence of the plaintiff/respondent and granting his claim.
I find no merit in this appeal. I therefore accordingly dismiss it. I affirm the judgment of the Court below.
Appellant shall pay N1,000 as costs to the respondent.
SC.189/1988
