ODEOGBOLA V THE REGISTERED TRUSTEES, RCCG

ODEOGBOLA V THE REGISTERED TRUSTEES, RCCG


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON WEDNESDAY, 12TH APRIL, 2017


APPEAL NO: CA/IB/123/2013

CITATION: CA (2017) 4 LLIR 1

Before Their Lordships

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

MODUPE FASANMI, J.C.A.

CHINWE EUGENIA IYIZOBA, J.C.A.


BETWEEN

ISRAEL ADEGOKE ODEOGBOLA
(For himself and on behalf of Kosenatu Jarinogbe Family of Oloronbo Village)

(APPELLANTS)

AND

THE REGISTERED TRUSTEES REDEEMED CHRISTIAN CHURCH OF GOD (RCCG)

RESPONDENTS


PRONOUNCEMENTS

A. EVIDENCE
1. Burden of Proof–On the rule of law that the standard of proof in civil matters is based on the preponderance of evidence;

In civil matters, proof is upon the preponderance of evidence in determining which is heavier, the Judge will naturally have regard to whether the evidence is admissible, relevant, credible, conclusive or more probable than that adduced by the other party. See the cases of Akanni v. Odejide (2004) ALL FWLR (pt. 218) pg. 827 at 858 paras E – H and Mogaji v. Odofin (1978) 3 – 4 SC at 91. PER FASANMI, J.C.A. (para. 21) READ IN CONTEXT.

B. LAND LAW
2. Identification of Land in Dispute–Effect of failure to properly identify the land in dispute through clear, cogent evidence;

He who asserts the positive has the burden of proof and a claimant who drags another man to Court must be fully armed with the relevant materials- legal evidence to establish his case. How can a man claim a portion of a vast piece of land without properly delineating the portion he claims by clearly identifying marks? Several cases adorn the law books and law reports on the focal position of a proper identification of a land in dispute. (See ILONA V. IDAKWO (2003) 11 NWLR (PT. 83 ) 53; NWOKE V. OKERE (1994) 5 NWLR (PT. 343) 159 and JIMOH ATANDA V. MEMUDU ILIASU (2012) LPELR-19662 (SC). Where there exists no proper and unequivocal identification endowed with credible boundary men’s supporting evidence, a claim of title to land become still born, and must be reposed in the annals of history. PER DONGBAN-MENSEM, J.C.A. (para. 26) READ IN CONTEXT.

3. Identification of Land in Dispute–On the principle that where a land in dispute is not sufficiently described, extrinsic evidence can be led to make it clear;

The learned trial Judge was right in his findings as the land in dispute was not adequately identified. Where the land claimed is inadequately described or identified, extrinsic evidence is allowed to be led to make it certain. See Ekpechi v. Owhunda (1998) 3 NWLR (pt. 543) pg. 618 at 637 – 638 paras G – A. PER FASANMI, J.C.A. (para. 20) READ IN CONTEXT.

4. Proof of Title–On the principle that a party who seeks declaration of title must prove same; and must succeed on the strength of his own case;

The core issue in this appeal turns on the question whether the Appellant properly identified the parcel of land to which his claim relates. In an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party. See the cases of Kodinliye v. Odu (1935) 2 WACA at 336; Mogaji v. Cadbury Nigeria Ltd (1985) 2 NWLR (pt. 7) pg. 393; Lawal v. Akande (2009) 2 NWLR (pt. 1126) pg. 425 and Ogunjemila v. Ajibade (2010) 11 NWLR (pt. 1206) pg. 559. The onus generally does not shift and must be discharged by clear, satisfactory and cogent evidence. See Nitel Plc v. Rockonoh Property Co. Ltd. (1995) 2 NWLR (pt. 378) pg. 437; Kopek Construction Ltd. v. Ekisola (2010) 3 NWLR (pt. 1182) pg. 618, Agboola v. U.B.A. Plc. (2011) 11 NWLR (pt. 1258) pg. 375 and Lawson v. Ajibulu (1997) 6 NWLR (pt. 507) pg. 14 and Nwokidu v. Okanu (2010) 3 NWLR (pt. 1181) pg. 362. PER FASANMI, J.C.A. (paras. 16-17) READ IN CONTEXT.


LEAD JUDGEMENT DELIVERED BY FASANMI, J.C.A.


  1. This is an appeal against the Judgment of the Ogun State High Court of Justice in Suit No. AB/07/2009 delivered on the 27th of September, 2012.
  2. By a 2nd Amended Statement of Claim dated and filed on 19/05/2011 (hereinafter called the “Claim”) the Appellant as Claimant before the lower Court claim:(a) Declaration of entitlement to the statutory right of occupancy of the land in dispute
    (b) An injunction against the defendant prohibiting trespass on the land in dispute
    (c) On Million naira (N1, 000,000:00) damages for trespass
    (d) Such further order as the Court may deem fit and as per the Writ of Summons.
  3. The Appellant’s case as contained in his Amended Statement of Claim and witness deposition on oath is that the vast parcel of land situated at Olowotedo/Oloronbo village in Obafemi/Owode Local Government Area of Ogun State which is more particularly delineated in Survey Plan No. LDC/OGS/2010/53P belongs to the Kosenatu Jarinogbe Family of Oloronbo village of which he is a principal member, and that he has been in possession of the land “in dispute” from time “immemorial.” Appellant stated that sometime in 2008, the subject land was trespassed upon by Respondent and that the Respondent was still in continuous trespass on the land.
  4. In response, the Respondent filed an amended Statement of defence. In it, the Respondent contended that the subject land forms part of a large expanse of land lying and being at Obafemi/Owode Local Government Area of Ogun State which was acquired by the Ogun State Government and the acquisition was published in the Ogun State Gazette No. 8 of 24th February, 1994, part of which was allocated to her (the Respondent) by the said Government in 2009.
  5. Aside from the allocation by the government, the land owning family to which the Appellant claims to belong, first prevented the Respondent from taking possession but eventually yielded after collecting money for the sale of plots of land to the Respondent, the boundaries of which was misrepresented by the Appellant.
  6. Evidence was led by the parties to support their respective assertions. At the end of the trial, the parties addressed the Court. The lower Court in its Judgment dismissed the claims of the Appellant holding that the land in dispute had not been properly defined by the Appellant.
  7. Dissatisfied with the Judgment, Appellant filed his notice of appeal on the 20th of November, 2012. The notice of appeal is at pages 95 – 97 of the record. The record of appeal was transmitted on 15/4/2013 but was deemed properly compiled and transmitted on the 24th of February, 2014. Appellant’s brief of argument was filed on the 24th of March, 2014 wherein he distilled a sole issue for determination thus:-“Whether the land in dispute is uncertain to warrant a dismissal of the claims of the Claimant.”
  8. The Respondent’s brief of argument was filed on the 24th of April, 2014 and distilled a sole issue for determination thus:-“Whether or not the Claimant had sufficiently described the land in dispute to warrant the granting of his claims.”
  9. The issues distilled by the parties are virtually the same but couched differently. Since the issue distilled by the Respondent appears direct to the controversy in issue between the parties, the appeal will be determined on the Respondent’s sole issue which states:-“Whether or not the Claimant had sufficiently described the land in dispute to warrant the granting of his claims.”
  10. Learned counsel for the Appellant submitted that the burden for a claimant seeking declaration of title to land to discharge is that of showing with clarity and precision the land to which such declaration is to be attached. He referred to the cases of Akinolu Baruwa v. Ogunshola & Ors. 4 WACA pg. 159; Chief Ebenezer Awote & Ors. v. Alhaji Sunmonu Kadiri Owodunni & Anor. (1987) 5 SC pg. 1.
  11. Learned counsel for the Appellant submitted further that he pleaded the boundaries of his land at paragraph 4 of his claim. Appellant as CW1 gave evidence of his boundary men and he was not cross-examined. He submitted further that his Surveyor also gave evidence as CW2 and he was also not cross examined on the material evidence rather his cross examination bothered on discrediting the Survey Plan Exhibit A. He submitted that it is therefore clear that the identity of the land in dispute is settled on the pleadings of the parties. He referred to the case Joshua Ogunleye v. Babatayo Oni (1990) 4 SC pg. 130 at 147.
  12. Learned counsel for the Appellant submitted that in the circumstances, the trial Court ought to have accepted the identity of the land in dispute as stated by the Appellant as conclusive of the issue. He submitted that the Appellant established that the Respondent entered his land. He urged the Court to so hold and resolve the sole issue in favour of the Appellant. He urged the Court to allow the Appeal.
  13. Learned counsel for the Respondent submitted that the Respondent through her pleadings had expressly denied entering into the Appellant’s land and further stated therein that the land she occupied had been wrongly described by the Appellant. He referred to paragraph 9 lines 1 and 2 of the Amended Statement of Defence at page 42 of the record. He contended that this is enough denial in law and a clear indication that parties were laying claim to different parcels of land. He referred to the case of Adegboyega v. Awe (1993) 3 NWLR (pt. 280) pg. 224.
  14. Submitted further that the Respondent having shown that her land is different from the land claimed by the Appellant both by pleadings and uncontroverted oral evidence has placed the onus of proving the identity of the land in dispute back on the Appellant. This onus was never discharged by the Appellant throughout the trial.
  15. Learned counsel for the Respondent submitted further that Appellant could never have been in the exclusive possession of the area of overlap shown in the composite survey plan since the Appellant did not know the portion of land he claimed the Respondent entered and could not properly define same. For all intents and purposes, the area of overlap which was borne out of the wrong indication of the Appellant in Exhibit A which was the basis of Exhibit H, the composite survey could have been and actually was on a wrong premise, the Respondent having shown by evidence that he actually bought some portion from the Appellant’s family but not to the areas described through natural courses by the Appellant. He submitted that the appeal is brought upon a confused premise and ought to fail. He urged the Court to resolve the sole issue against the Appellant and dismiss the appeal.
  16. The core issue in this appeal turns on the question whether the Appellant properly identified the parcel of land to which his claim relates. In an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party. See the cases of Kodinliye v. Odu (1935) 2 WACA at 336; Mogaji v. Cadbury Nigeria Ltd (1985) 2 NWLR (pt. 7) pg. 393; Lawal v. Akande (2009) 2 NWLR (pt. 1126) pg. 425 and Ogunjemila v. Ajibade (2010) 11 NWLR (pt. 1206) pg. 559.
  17. The onus generally does not shift and must be discharged by clear, satisfactory and cogent evidence. See Nitel Plc v. Rockonoh Property Co. Ltd. (1995) 2 NWLR (pt. 378) pg. 437; Kopek Construction Ltd. v. Ekisola (2010) 3 NWLR (pt. 1182) pg. 618, Agboola v. U.B.A. Plc. (2011) 11 NWLR (pt. 1258) pg. 375 and Lawson v. Ajibulu (1997) 6 NWLR (pt. 507) pg. 14 and Nwokidu v. Okanu (2010) 3 NWLR (pt. 1181) pg. 362.(back to top?)
  18. Appellant in the instant case described the land in dispute stating the boundaries by names of the neighbours. He also tendered a survey plan which was admitted as Exhibit A. The Respondent filed a composite plan No . OG/2005/2012/042 of 6/7/2012 drawn by Surveyor Jide Adebayo showing the land claimed by the Respondent Exhibit H. Under the note at the bottom left of the plan, it is stated that the area verged red is the entire allocation granted to the Respondent by the Ogun State Government while an area verged blue is said to be the area claimed by the Appellant. This area is noted to be as in Plan No. LDC/OGS/2010/53 i.e. Exhibit A tendered by the Appellant. The Respondent though a Defendant at the lower Court has no burden to prove anything as required of the Appellant who was the Claimant at the trial Court. Where as in this case, Respondent is alleging that he is the owner of an area of land in the same area as the land in dispute, then Appellant ought to establish the identity of the land he is claiming. Appellant led no evidence to clarify the uncertainty in the description of the portions of land covered by the survey plans of the parties i.e. Exhibits A and H respectively. It is trite that the parcel of land claimed must be certain and clear.
  19. In the instant case, the learned trial Judge at page 86 of the record found as follows:-“A look at the area covered by the said Exhibit A on the composite plan Exhibit ‘H’, one will discover that what falls outside the area claimed by the Defendant is really not up to one third of the area verged blue i.e. claimed by the Claimant neither of the parties averted their minds to this. Thus, what is in dispute is not the whole land covered by Exhibit ‘A’ but a fraction of it. This has in effect made the land being claimed uncertain as the Court cannot grant a claim of declaration on an unspecified area of land.”
  20. The learned trial Judge was right in his findings as the land in dispute was not adequately identified. Where the land claimed is inadequately described or identified, extrinsic evidence is allowed to be led to make it certain. See Ekpechi v. Owhunda (1998) 3 NWLR (pt. 543) pg. 618 at 637 – 638 paras G – A.(back to top?)
  21. In civil matters, proof is upon the preponderance of evidence in determining which is heavier, the Judge will naturally have regard to whether the evidence is admissible, relevant, credible, conclusive or more probable than that adduced by the other party. See the cases of Akanni v. Odejide (2004) ALL FWLR (pt. 218) pg. 827 at 858 paras E – H and Mogaji v. Odofin (1978) 3 – 4 SC at 91.(back to top?)
  22. From the preponderance and evidence on record, the land possessed by the Respondent is different from the land Appellant is claiming. The reason why Appellant was not cross-examined on his evidence is therefore not far-fetched. Appellant’s surveyor i.e. CW2 was cross-examined on the survey plan Exhibit A. The Respondent having shown that her land is different from the land claimed by the Appellant both by pleadings and uncontroverted oral evidence has placed the onus of proving the identity of the land in dispute back to the Appellant. A plan is supposed to be a mirror of the evidence led by a party. Where as in this case the description of the land in dispute is uncertain, it will defeat a Claimant’s claim in an action for declaration of title. See the cases of Fashina v. Ogunkayode (2005) 12 NWLR (pt. 938) pg. 147 and Peterside v. Wabara (2011) 6 NWLR (pt. 1243) pg. 328.(back to top?)
  23. Appellant has the burden to prove his assertions and claims because the Respondent has no claim before the Court. Since the land being claimed by the Appellant against the Respondent was not certain, the lower Court cannot grant the declaration sought by the Appellant in respect thereof. The sole issue is hereby resolved against the Appellant.
  24. Finally, the appeal is devoid of merit and it is hereby dismissed. The Judgment of the Ogun State High Court of Justice in Suit No. AB/07/2009 delivered on the 27th of September, 2012 is hereby affirmed. Parties are to be their respective costs.
  25.  
    DONGBAN-MENSEM, J.C.A.:

  26. I agree with the lead judgment prepared by my learned brother Modupe Fasanmi JCA dismissing the appeal as lacking in merit.
  27. He who asserts the positive has the burden of proof and a claimant who drags another man to Court must be fully armed with the relevant materials- legal evidence to establish his case. How can a man claim a portion of a vast piece of land without properly delineating the portion he claims by clearly identifying marks? Several cases adorn the law books and law reports on the focal position of a proper identification of a land in dispute. (See ILONA V. IDAKWO (2003) 11 NWLR (PT. 83 ) 53; NWOKE V. OKERE (1994) 5 NWLR (PT. 343) 159 and JIMOH ATANDA V. MEMUDU ILIASU (2012) LPELR-19662 (SC). Where there exists no proper and unequivocal identification endowed with credible boundary men’s supporting evidence, a claim of title to land become still born, and must be reposed in the annals of history.(back to top?)
  28. I too hereby dismiss this appeal and affirm the decision of the High Court of Ogun State in Suit No. AB/07/2009 delivered on the 27th September, 2012.
  29.  
    IYIZOBA, J.C.A.:

  30. I read before now the judgment just delivered by my learned brother, MODUPE FASANMI JCA. I agree with the reasoning and conclusions contained therein. The Appellant failed to describe the land with such certainty as would enable the Court grant the declaration sought. I agree that the appeal lacks merit. I also dismiss the appeal and affirm the judgment of the lower Court. I abide by the consequential orders as to costs in the lead judgment.