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WHERE IDENTITY OF LAND NOT IN DISPUTE, DECLARATION OF TITLE MAY BE MADE WITHOUT SURVEY PLAN

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The first point that must be made is the basic principle of law that in a counter-claim, just like in any other claim for declaration of title to land, the onus lies on the claimant to prove with precision and certainty and without inconsistency the identity of the land to which his claim or counter-claim relates. See Onwuka v.Ediala (1989) 1 NWLR (Pt. 96) 182; Ezeokeke v. Umunocha Uga (1962) 1 All NLR 477. (1962) 2 SCNLR 199; Olusanmi v. Oshasona (1992) 6 NWLR (Pt. 245) 22 at 36, Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 etc. There can be no doubt that the most common and, perhaps, the easiest way of establishing the precise area of land in dispute is by the production of a survey plan of such land. It is, however, equally clear that it is not in all cases for declaration of title to land that it is necessary to survey and/or tender the survey plan of the land in dispute. There are many cases in which no survey plans are essential for a proper determination of the issue. What the court must consider is whether, in a particular case, it is necessary for the proper trial of the action for a survey plan to be produced. Where there is no difficulty in identifying the land in dispute, a declaration of title may be made without the necessity of tying it to a survey plan.

— Iguh, JSC. Kyari v Alkali (2001) – SC.224/1993

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WHERE TRADITIONAL HISTORIES ARE PLAUSIBLE, COURT WILL RELY ADDITIONALLY ON ACTS OF OWNERSHIP & LONG POSSESSION

A party seeking a declaration of title to land is not bound to plead and prove more than one root of title to succeed but he is entitled to rely on more than one root of title. However, where as in this case, he relies on traditional history, and in addition acts of ownership and long possession predicated on the traditional history as pleaded, he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession where the evidence of traditional history is unavailing: See Balogun v. Akanji (1988 ) 1 N.W.L.R. (Pt. 70) 301 at 232; Eronini v. Iheuko (1989) 2 N.W.L.R. (Pt. 101) 46 at 61. However, such evidence of acts of ownership and long possession becomes relevant where the traditional histories given by both sides though plausible are in conflict. In such a situation, it will not be open to the court simply to prefer one side to the other. To determine which of the histories is more probable, the courts have called in aid the principle enunciated in the celebrated case of Kojo II v. Bonsie (1957) 1 W.L.R. 1223 which is to the effect that the preference of one history to the other as being more probable would depend on recent acts of ownership and possession shown by the parties that the court would need to consider to make up its mind. See Ohiaeri v. Akabeze (1992) 2 N.W.L.R. (Pt. 221) 1 at 19, Ekpo v. Ita (1932- 34) 11 N.L.R. 68, Mogaji v. Cadbury (Nig) Ltd. (1985) 2 N.W.L.R. (Pt. 7) 393.

— Edozie JSC. Cosm As Ezukwu v. Peter Ukachukwu Jude Ukachukwu (SC. 160/2000, 2 July 2004)

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WHAT CONSTITUTES A VALID TRANSFER OF A LEGAL TITLE

It is trite law that in order to constitute a transfer of legal title under English Law by purchase, there must be a valid sale, payment of money accompanied by acknowledgement of receipt and execution of a deed of conveyance. If a person sells his land to another and fails to put the person in possession, retains possession, the payment of money to the owner of a parcel of land does not per se amount to a transfer of title to the purchaser. The payment of purchase price must be accompanied either by a conveyance executed in favor of the purchaser to invest him with legal title or by entry into possession by the purchaser to give him equitable title to the land.

– Abiru, JCA. Okoli v. Gaya (2014)

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HAD TITLE TO LAND BEFORE COMING OF THE LAND USE ACT IS CONSIDERED HOLDER

A person or Community that had title to a parcel of land before the coming into force of the Land Use Act, 1978 is deemed to be a holder of a right of occupancy, statutory right of occupancy or customary right of occupancy, depending on the status of the land – whether it is in urban area or in non-urban area. See Section 34(2), (3) and (6) and Section 36(2), (3) and (4) of the Land Use Act.

— Wali JSC. Onwuka & Ors. V. Ediala & Anor. (SC.18/1987, 20 January 1989)

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PROOF OF TITLE TO LAND BY TRADITIONAL HISTORY

One of these five methods or ways of proof of title is by traditional history of the land which includes modes of acquisition of same by deforestation of the virgin forest by the first settler and by proof of acts of long possession on and over the land in issue. — J.H. Sankey, JCA. Ibrahim Muli v Sali Akwai (2021) – CA/G/423/2019

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REQUIREMENTS BEFORE DOCUMENT OF TITLE IS ADMITTED AS SUFFICIENT PROOF

Mere production of a deed of conveyance or document of title does not automatically entitle a party to a claim in declaration, before the production of document of title is admitted as sufficient proof of ownership, the court must satisfy itself that:- (a) The document is genuine or valid (b) It has been duly executed, stamped and registered. (c) The grantor has the authority and capacity to make the grant. (d) That the grantor has in fact what he proposes to grant. (e) That the grant has the effect claimed by the holder of the instrument. Ayorinde v. Kuforiji (2007) 4 NWLR, Pt.1024, Pg. 341, Dosunmu v. Dada (2002) 13 NWLR Pt. 783, Pg. 1 Romaine v. Romaine (1992), 4 NWLR Pt. 238 Pg. 650, Kyri v Alkali (2001) FWLR, Pt 60, Pg. 1481 Dabor v. Abdullahi (2005) 29 WRM 11 SC 7 NWLR Pt. 923, Pg. 181.

— O.O. Adekeye, JSC. Agboola v UBA (2011) – SC.86/2003

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DUTY OF PARTY CLAIMING LAND THROUGH HISTORY OF OWNERSHIP

The law is clear that it is not enough for a plaintiff seeking a declaration of title to land to lead evidence to trace his title to a particular person. He must go beyond that to establish by credible evidence the root of that person’s title otherwise title will not be declared in him: See Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393; (1985) 7 SC 59; Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745; Uche v. Eke (1992) 2 NWLR (pt.224) 433.

— Uwaifo, JSC. Olohunde v. Adeyoju (2000) – SC.15/1995

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