Wahabi Maberi V. Chief Oyeniyi Alade (The Iba Iya Oje) & Ors. (1987)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C

This appeal by the defendants raises only one issue, namely, whether the Court below is correct in upholding the decision of the trial Judge in favour of the plaintiffs for declaration of title to a piece of land at Iba Iya Oje in Ogbomoso District of Oyo State the boundaries of which were orally described by the plaintiff,the defendant and witnesses.

The trial Judge earlier in his judgment held the view that the survey plan pleaded and tendered in evidence was unreliable but relying on the case of Garuba v. Akacha (1966) N.M.L.R. 62 held that “a plan is not an absolute necessity in every land case and as in this case, particularly, where both parties and the Court know precisely what piece of land is in dispute………” The trial Judge then ordered as follows:-

“1. Declaration of title to all that piece or parcel of land situate, Lying and being at Iba Iya Oje family land at Iya Oje. Ogbomosho District, and more particularly described by the 1st plaintiff in his evidence in Court as follows:-

“On one side is Ghehughehu stream. On another side is Alese family land at Ogbegun stream. On another side is my own Iya Oje family land. On another side is Parakoyi family land. On another side is the old foot path demarcating our boundary.”

The defendants appealed to the Court of Appeal on seven (7) grounds and with leave of the Court, 9 additional grounds were filed. Two of the grounds (i.e. 3 and 8) were disallowed and struck out. After hearing counsel for both parties, the Court below dismissed all the grounds. The only contention in this appeal is whether the trial Judge was right in making the orders when the declaration for title and injunction were not tied to the pleaded survey plan but on oral description of the land by the parties It was contended by the appellant that in the circumstance the boundaries of the land were uncertain and the claims ought to have been dismissed.

In the lead judgment of the Court below read by Dosunmu, J.C.A., after considering a number of cases cited before the Court, stated:-

Counsel to the appellant cited the case of Epi & Anor v. Aigbedion (1973) N.M.L.R.31 for the effect on a plaintiffs claim for declaration of title where he failed to prove boundaries of the land subject matter of the claim. The case does not decide that where a plan was found unreliable, other pieces of evidence of the boundaries cannot be used for the purpose of identifying the land as it happened in the present appeal.

“In Alhaji Etiko v. Aroyewum supra the Supreme Court said at page 130:-

“Thus, even if as alleged in Ground 2, the trial Judge’s use of the plan attached to the Statement of Claim was wrong (as to which I am by no means satisfied) there was ample other evidence identifying the land claimed with what the respondent bought.

There being no difficulty in identifying the land in dispute it was open to the Court below to grant the declaration sought without basing the declaration on a plan.”

“This is precisely what happened here. The declaration was not based on Exhibit A as there was other ample evidence identifying the land claimed.

“In their Statement of Claim the plaintiffs expressly pleaded the boundaries of the land in paragraph 8, and the 1st plaintiff gave copious evidence in relation to them thus:-

“The boundaries of the land are as follows:- On one side is Gbehugbehu Stream. On another side is Alasa Family land at Ogbegun Stream. On another side is my own family land – Iya Oje. On the fourth side is Parakoyi family land. On this fourth side is an old foot path demarcating our boundary. The land in dispute is part of an entire area of land belonging to my family. The boundaries of our entire family land are as follows:- On the first side is Aresa family land at Opo Aya Stream. On the other side is Oluwofin family land at Molagi Stream. On another side is Oniyegun and Alaago families’ lands. On another side is the Parakoyi family land.”