Major I. Z. Umoru (Rtd) V Alhaji Abubakar Zibiri And Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, JSC

This is an appeal from the judgment of the Court of Appeal, Benin Division, in which the court allowed the appeal of the respondents, who were the appellants in the lower court. At the High Court, the plaintiffs, who are the appellants in this court, sought for (1) a declaration of entitlement to a statutory right of occupancy. (2) N50,000.00 special and general damages for trespass. (3) Recovery of the sum of N15,000.00 payable to the plaintiff. (4) Perpetual injunction. The learned trial Judge gave judgment in favour of the appellants, which, as indicated above, was overturned by the Court of Appeal.

In the last paragraph of the judgment at page 404 of the Record, the Court of Appeal said:

“In view of the foregoing, I am of the firm view that the learned trial judge was in error when he entered judgment for the respondents. The claim of the respondents should have been dismissed in its entirety. This appeal therefore succeeds and is hereby allowed. The judgment of the court below is hereby set aside. In its place, judgment is hereby entered dismissing the claim of the Respondents at the court below.”

Dissatisfied with the judgment, the appellants filed an appeal. Briefs were filed and duly exchanged. Appellants formulated three issues for determination:

“(a)Were the Justices of the Court of Appeal right in their finding that the appellants did not establish the boundaries of the disputed land?

(d) Whether it was not prejudicial to the appellants for the Court of Appeal to have proceeded to deliver judgment without the perusal of Exhibit A, the appellants’ survey plan;

(e) Whether the Court of Appeal was right to have suo motu introduced, considered and relied on the rule in Kojo II V. Bonsie (1957) 1 WLR 1223.”

Respondents formulated two issues for determination:

“(a)Whether the Court of Appeal was right, having regards to the evidence and the pleadings, when it held that the plaintiffs failed to prove the boundaries of their land and they were not prejudiced by the fact that their Survey Plan was not considered by the Court? And

(b) Whether on a proper appraisal of the evidence and application of the rule in Kojo II V. Bonsie the Court of Appeal was right in its decision that the Defendants’ acts of ownership/possession far exceeded that of the Plaintiffs if any?”

Learned counsel for the appellants. Mr. Ken E. Mozia, submitted on Issue No. 1 that the factors that informed the conclusion of the court below to the effect that the boundaries of the land were not established are not well founded. Counsel also submitted that the interpretation of the portion of the evidence of the 1st plaintiff by the court below to the effect that the boundary between the appellants and Umuseti Community is missing is unjustifiable. Counsel claimed that the 1st plaintiff clearly indicated in his evidence that the portion of land where they farm together constitutes the boundary between them.

It was the submission of learned counsel that the court below clearly elevated the issue of the boundary between the appellants and Umuseti Community to an undeserved height or level. The Umuseti Community were not parties to the proceedings and did not lay claim to any portion of the land in dispute verged green in the appellants’ plan, learned counsel opined.

Dealing with the onus of proof, learned counsel submitted that the appellants established their case on the prepondence of evidence by producing a survey clearly setting out the boundaries of the area claimed and calling evidence of those who have boundaries with them in at least three of the four sides as confirmed by the court below. The onus on the plaintiffs in a case for declaration of title is to prove their case on a preponderance of evidence in their favour, counsel contended. He cited Nkado V. Obiano (1997) 50 LRCN 1084 at 1114 and Elufisoye V. Alabetutu (1968) NMLR 298. He also examined the case of Kwadzo V. Adjei (10) WACA 274 in the light of the decision by the court below.