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MONDAY, 14TH ULY, 1997

3PLR/1997/56  (CA)



13 N.W.L.R (Pt.581) P. 273









ADEBAYO JIMBA  (Substituted by Alhaji Folorunsho Akanbi Oba Bachita) for himself and on behalf of the Ologun Jimba family)








DOCUMENT – Admissibility – Secondary evidence of document in possession of adversary – Where sought to be tendered – Duty on party seeking to tender to give prior notice to produce to the adversary

LAND LAW – Declaration of title – Reliance on evidence of traditional history – Duty on plaintiff – How discharged.

PRACTICE AND PROCEDURE – EVIDENCE – Admissibility – Secondary evidence of document in possession of adversary – Where sought to be tendered – Duty on party seeking to tender to give prior notice to produce to the adversary




1        Whether from the state of the pleadings and evidence before the court the parties joined issues as to the identity of the land in dispute.


  1. Whether from the totality of the evidence before the trial court the appellant proved his case and was thereby entitled to judgment.


  1. Whether the rejection of the letter pleaded and dated 15th September, 1993 by the trial court was wrongful and thereby occasioned a miscarriage of justice.



The appellant in a representative capacity on behalf of himself and the Ologun Jimba family of Ilorin jointly sued the respondents in the Ilorin High Court claiming a declaration of title to a piece of land situate along Ajase-11orin Road, forming the subject matter of this action, together with a declaration that the certificate of occupancy No. 3899 in respect of the same land and granted in favour of the 1st respondent was null and void. In addition, he claimed a perpetual injunction and N5000 damages for trespass over the said land.


Pleadings were filed and exchanged. The 1st and 2nd respondents filed a joint statement of defence whilst the 3rd respondent filed one on his own behalf. The case went to trial and the appellant called one witness on his behalf and the 3rd respondent likewise called only one witness on his own behalf. No witnesses were called for the 1st and 2nd respondents and in fact no evidence was led on their behalf.


During the trial, the appellant contended that his title to the land in dispute was rooted in traditional history as shown in his statement of claim. It was averred and claimed that the appellant’s ancestors acquired the said land by conquest. However, no paragraph of the statement of claim described the land claimed by the appellant. The 3rd respondent on the other hand had pleaded and led evidence to the fact that the land in dispute had been acquired for the purpose of putting up a public motor garage and it was part of that acquired land that was allocated to the 1st respondent to build a filling station to serve the motor garage. That part of the land granted to the 1st respondent, it was further averred, was granted vide certificate of occupancy No. KW 3899 containing a survey plan covered by the certificate and also the numbers of the survey beacons for identification as features on the land. Nonetheless during trial, the certificate of occupancy was not tendered in evidence.

The appellant led no evidence to prove with certainty the identities of his ancestors who conquered the said land nor any evidence as to the area and boundaries over which his claim relates in respect of the land in dispute. Furthermore, his only witness admitted under cross-examination that he did not even know the owners of the land in dispute before his family became owners of the land by conquest.

The court in its judgment dismissed the appellant’s case and held inter alia that the appellant did not discharge the onus of proof on him requiring him to prove by credible evidence the boundaries of the land in dispute since same had been put in issue by the parties.


Dissatisfied, the appellant appealed and contended inter alia that the boundaries of the land in dispute being well known to all the parties were not in issue and therefore the trial court was not justified in making the finding it did.



Held (Unanimously dismissing the appeal):


  1. The case of a plaintiff who is claiming a declaration of title will be dismissed if he fails to prove the boundaries or the identity of the land in dispute. The boundaries of the land in dispute must be proved with certainty such that a surveyor, taking the record, could produce a survey plan, showing with accuracy the land in dispute. Thus, a plaintiffs first duty in a claim for declaration of title to land is to prove the area over which he claims with certainty. Therefore, in the instant case, since no evidence was adduced to establish the identity of land in dispute, the trial court was right in dismissing the appellant’s suit. [Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141, Udofia v. Afla (1940) 6 WACA 216, Baruiva v. Ogunshola (1938) 4 WACA 159, Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192, Iniah v. Okogbe (1993) 9 NWLR (Pt. 316) 159 referred to]


  1. There are five main ways of proving ownership of land that have been recognised by judicial decisions and one or more of these ways are usually used in proof of title to land.


  1. To effectively use traditional history in proof of title to land, particularly where such claim is based on customary title, the party must as part of the history adduce:


(a)     evidence of how his title was derived;


(b)     facts relating to the founding of the land in dispute;


(c)     the persons who founded the land in dispute and exercised original acts of possession; and


(d)     the person on whom the title in respect of the land was devolved since its first founding to determine in what communal capacity the land was held and how subsequently the land was devolved on the party relating the traditional history.


In the instant case, the appellant failed to satisfy these requirements and was therefore not entitled to judgment. [1dundun v. Okuniagba (1976) 9-10 SC 227, Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) 610, Nwololo v. Ukegbu (1997) 4 NWLR (Pt. 500) 436 referred to]


  1. An issue for determination should arise and relate to a ground of appeal and any issue not arising from any ground of appeal is incompetent and ought to be struck out or ignored in the determination ofthe appeal. [Madumere v. Okafor (1996) 4 NWLR (Pt. 445) 637 referred to]


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