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

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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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FIVE WAYS TITLE TO LAND COULD BE PROVED

Idundun v. Okumagba (1976) 9-10 SC 227; (1976) 1 NMLR 200, this court enumerated five ways in which title or ownership of land could be proved. These are: (1) By traditional evidence. (2) By production of documents of title duly authenticated and executed. (3) By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of true ownership. (4) By acts of long possession and enjoyment, and (5) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.

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IN A CLAIM FOR DECLARATION TO TITLE TO LAND, THE PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS CASE

It is now well settled that in a claim for declaration of title to land, a plaintiff has the burden of proving his case on his own evidence and cannot rely on the weakness of the defendant’s case. If that burden is not discharged, the weakness of the defendant’s case will not help him and proper judgment will be for the defendant. See Kodilinye v. Odu (1935) 2 WACA 336 at 337; Odusanya v. Ewedemi (1962) 2 SCNLR 23, 1 All NLR 320; Atuanya v. Onyejekwe (1975) 3 SC. 161; Bashua v. Maja 11 SC. 143. However a plaintiff can take advantage of and rely upon evidence By the defence which supports his case. See Akinola v. Oluwa 1 SCNLR 352, (1962) WNLR 133. Realizing this principle of law, the learned counsel for the Appellants submitted in his brief that since both parties to the case agreed that the land in dispute was intimately connected with the Edo goddess, and the Chief Priest of Edo goddess had always come from the Appellant’s family, it necessarily followed that there had been a succession of Chief Priests who held the land in trust for the Appellants’ family which proved the root of their title. I do not think that this submission holds any water here. In the first place, the Appellants, apart from mentioning the names of Chief Priests who held that office in their family over the years, did not prove their ownership of the land or that they lived there without any interference, and in the second place, except the admission in the pleadings that the family of the Appellants produced the Chief Priests, no other evidence was given proving any title or ownership by the respondents at the trial. It is an after thought to bring it at this stage and cannot in my view be accepted to prove any root of title by the Appellants. Therefore the Akintola v. Oluwo case (supra) is not relevant here.

— U.A. Kalgo, JSC. Dike & Ors. V. Francis Okoloedo & Ors. (SC.116/1993, 15 Jul 1999)

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REGISTRABLE INSTRUMENT NOT REGISTERED CANNOT BE RELIED UPON TO PROVE TITLE

The crucial question to be answered in this appeal is what is the effect of the non-registration of Exhibits -E’ and ‘F which are registrable instruments within the provisions of section 2 of the Land Instruments Registration Law. There is a long and impressive judicial authority for the proposition that the non-registration of a registrable instrument renders such instrument inadmissible as evidence in a litigation where such instrument is relied upon as evidence of title. – See Abdallah Jammal v. Said; & Fetuga 11 NLR. 86. Elkali & anor. v. Fawaz 6 WACA. 212 at p. 214. Coker v. Ogunye (1939) 15 NLR. 57; Ogunbambi v. Abowab (1951) 13 WACA. 222. Amankra v. Zankley (1963) 1 All NLR. 364. Section 15 of the Lands Instrument Registration Law provides simply as follows – “No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered. Provided that a memorandum given in respect of an equitable mortgage affecting land in Eastern Nigeria executed before the 1st day of July, 1944, and not registered under this Law may be pleaded and shall not be inadmissible in evidence by reason only of not being so registered.”

— Karibe-Whyte JSC. Okoye v Dumez & Ors. (1985) – SC.89/1984

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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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FIVE METHODS BY WHICH TITLE TO LAND MAY BE PROVED

In this regard, it is long settled that there are five methods by which ownership of land may be proved by a claimant. These are as follows: (i) By traditional evidence; (ii) By production of document of title which must be duly authenticated; (iii) By the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land; (iv) By acts of long possession and enjoyment of the land; and (v) By proof of possession of connected or adjacent land in circumstances rendering it probable that, the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. See Idundun & Ors v. Okumagba and Others (1976) N.S.C.C. 445, (1976) 9-10 SC 227 AT 249 or (1976) 1 NMLR 200.

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

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APPELLANT NEED NOT PROVE ALL FIVE WAYS FOR PROVING OWNERSHIP OF LAND

In an action for declaration of title to land, as in the instant case, a plaintiff need not prove all the five ways. Where the plaintiff’s case is based on traditional evidence of ownership as the legal basis of his claim, his duty is limited to proving such traditional title and no more. On the other hand, if a plaintiff’s claim relies on conveyance as the legal basisof ownership , his duty is simply to produce the documents of title or the title deeds. The same thing applies where he claims through any of the other remaining three ways.

— Onnoghen JSC. Aigbobahi & Ors. v. Aifuwa, Osabuohien & Ors. (SC. 194/2001, 3 Feb 2006)

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