Pleaded Root Of Title Not Established By Evidence

Ukaegbu  V. Nwololo

(2009) Vol. 1-2 M.J.S.C. 98

1.         Marcus  Ukaegbu                                Defendants /Appellants

2.         2. Nwadike  Ukaegbu

3.         Geornerius  Ukaegbu

4.         John Ukaegbu

AND

Mark Nwololo

(for himself and on behalf      –           Plantiff

of the Egbereuri family                       Respondent

of Umuezike – Umunagbo Ihitte Mbaise 

SUPREME COURT OF NIGERIA

Dahiru Musdapher, JSC          –           (Presided)

George Adesola Oguntade, JSC

I.F. Ogbuagu, JSC (Delivered the lead Judgment)

Pius Olayiwola Aderemi, JSC

Saifullah Muntaka – Coomassie, JSC

FACTS:

At the court of trial, the Respondent had said in a representative capacity to claim a Declaration of Title that the piece of land called “Oru Uhu Egbereuri”, N1,000.00 (One thousand naira) as damages for trespass and an order of perpetual injunction restraining the defendants and or their agents from entering the said land.

Pleadings were filed and exchanged by the parties  together with their  respective survey plan showing the features, boundaries and extent of the land in dispute. Exhibit 1-is the plan of the respondent while Exhibit 4, is the plan of the appellants.  At the hearing, both parties relied on traditional history of inheritance and acts of possession.  After hearing the parties, the learned trial Judge dismissed the Respondent’s case.  The Court of Appeal, however, ordered a retrial of the case before another judge of the High Court of Imo State “who should visit the locus in quo to make it easy to resolve the conflict in the traditional histories of the parties in respect of the land in dispute and also to know the true position of the land in dispute and also to know the true position of the land in Exhibit 2” Dissatisfied with the said decision, the Appellants appealed to the Supreme Court.

ISSUES

1.  Whether the Court of Appeal, Port Harcourt Division was right in its conclusion that the learned trial judge was wrong in preferring the testimony of the respondents (herein  appellants)   to that of the Plaintiff (herein Respondent) in view of the pleadings and evidence led and documents tendered before the High Court by the parties and their witnesses.

2..   Whether the Court of Appeal was right in holding that the learned trial Judge was wrong in not visiting the locus in quo before delivering its judgment in spite of the contradictions in the case of  the plaintiffs/appellants/respondents.

3.    Whether the Court of Appeal was right in its conclusion that the learned trial judge did not evaluate the evidence of the parties before ordering a retrial of the case before another judge.

HELD (Unanimously allowing the appeal)

It is now settled that where title is derived by either grant, sale, conquest or inheritance, etc, the pleading, should aver facts relating to the founding of the land in dispute and the person or persons who founded the land and exercised original  acts of possession. The plaintiffs are bound to plead who founded the land , how it was founded and the particulars  of the intervening owners through whom they claim.

In the case of Nkado and 2 Ors V. Obioma and Anor (1997) 5 SCNJ 33, it was stated that where there is no such evidence, if the pleaded root of title is not established by evidence, the plaintiff fails in his action for declaration.

In that event it will be futile exercise to go to the issue of possession or acts of ownership.  When an attempt to prove a root of title fails, acts of possession based on that root of  title, cannot sustain a claim for title.

Where in a trial of an action, evidence has been adduced by both parties and the plaintiff fails to prove his case, the proper order is that of dismissal.  In a claim for declaration for title to land, if the defendant is able to adduce evidence oral or documentary which has the effect of discrediting the plaintiff’s evidence, such a declaration should be refused. If evidence is conflicting and somewhat confused and there is little to choose between the traditional stories,  the plaintiff, must fail in the decree he seeks and judgment must be for the defendant.

Now, it is firmly settled that normally, the first duty of any claimant of title to land is to show exactly and precisely  a defined and identifiable area to which the claim relates.  If a claimant fails on the first hurdle, no further question need arise.  His case will stand dismissed.  See the cases of Udofia and Anor V. AFia and Ors (1940) 6 WACA 216; Udekwe Amata V. Udogu Modekwe (1954) 14 WACA 580 and Vincent Okorie and Ors V. Philip Udom and Ors (1960) 5 FSC 162 and Madam Salami and 3ors V. Oke (1987) 4 NWLR (Pt. 63) 1 at 17; (1987) 9-10 SCNJ 27, per Oputa, JSC.

If a plaintiff fails to prove the boundaries of the land he asserts to be in dispute or if he does not properly and satisfactorily described the land in dispute or if the description contradicts the plan he fails in the declaration of title that he seeks.  This is also because an inaccurate plan, should and will, defeat a plaintiff’s claim.  In other words, land to which a declaration is to attach, must be sufficiently and satisfactorily identified.

In Alhaji Elias V Chief Omo –Bare (1982) 1 ANLR (pt-1) 70- at 86, Obaseki, JSC, stated that before a declaration of title to land is granted, there must  be credible evidence describing and identifying the land with certainty. It is also settled that a court can compare plans in order to see the relationship between them.