EFFECT OF FAILURE TO PROVE IDENTITY OF LAND
CASE TITLE: NWAKU v. DANA & ORS (2018) LPELR-46012(CA)
JUDGMENT DATE: 5TH DECEMBER, 2018
PRACTICE AREA: LAND LAW
LEAD JUDGMENT: SAIDU TANKO HUSAINI, J.C.A.
SUMMARY OF JUDGMENT
This appeal borders on Land Law.
This is an appeal against the decision of the High Court of Taraba State. The 1st-19th respondents were the plaintiffs in the Suit commenced by them at the High Court vide the Writ of Summons taken and filed on the 17th December, 2018 in Suit No. TRSJ/24/2015. Their claim is endorsed in the Writ and the amended Statement of claim. It was for a Declaration of title in respect of the land in dispute in favour of the plaintiffs and also a declaration that the defendants are trespasser(sic) on the land in dispute.
The case for the 1st -19th respondents as presented in the joint statement of claim (as amended) was that their deceased father, Yusuf Dana Danburam left behind a parcel of land described as being situate in Jauro Yunu Hamlet. He was said to have acquired the land by acts of deforestation and thereafter put the land to use. Their father also obtained title documents to cover the land. This he did before he passed on. The 1st -19th respondents or some of them took over the use of the land left behind by their father. However sometimes in the year 2013, in the course of the routine inspection of the land, the 1st appellant noticed a building foundation being dug on a portion of the land. Upon inquiry he found that the appellant dug that foundation and when confronted the appellant claimed to have bought the piece of land from the 20th respondent.
The 20th respondent and the appellant who were sued as the 1st and 2nd defendants at the High Court denied the claim against them. The High Court took evidence of witnesses, and in the Judgment delivered on the 27th March, 2018 the Court found for the 1st -19th respondents in terms of the order drawn up. By that decision of the High Court the appellant was adjudged a trespasser and accordingly restrained perpetually from further interference with the land in dispute. He was ordered to pay the sum of N300, 000. 00 as damages for trespass.
Dissatisfied with the decision, the Appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION:
The Court determined the appeal on these issues couched as follows:
- Whether from the pleadings and the evidence led at the trial Court, the trial judge was right in holding that the identity of the land in dispute was no longer in issue and when he proceeded to grant the 1st – 19th Respondents declaration of title, injunction and damages in their favour particularly in the face of conflicting and contradictory evidence of the plaintiffs’ witnesses in the Court below.
- Whether the learned trial Judge can be said to be right in finding the Appellant liable for trespass and in granting injunction and damages against him after finding the 1st Defendant (20th Respondent) not liable having regard to the pleadings and evidence led by the 1st-19th Respondents in respect of the land they alleged to be in dispute.
- Whether the learned trial Judge was right in relying on the events that allegedly took place during the visit said to have been conducted to the locus in quo in finding for the 1st -19th Respondents.
- Whether the learned trial Judge can be said to have properly evaluated and correctly resolved the conflicting evidence of traditional history offered by the Plaintiffs on one hand and the Defendants on the other, assuming but without conceding that the plaintiffs had properly identify the land they were claiming and particularly when he relied on Exhibit P1, P3 and P4 in so doing.
On the whole, the Court found merit in the appeal and accordingly allowed same. The decision of the High Court was set aside and the claim before it was dismissed.
- EVIDENCE- VISIT TO THE LOCUS IN QUO: Whether a trial court can substitute evidence given on oath for its personal observation at the locus in quo
- LAND LAW- TRESPASS TO LAND: Whether the identity of a land said to be trespassed upon must be clearly defined
- LAND LAW- IDENTITY OF LAND: Duty of a Claimant to prove identity of land; Effect of failure to do same