➥ CASE SUMMARY OF:
Chief Aqua Edem Archibong & Ors. V. Chief Asuquo Itong Ita & Ors. (SC.103/1995, 16 Jan 2004)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Use of land;
Survey plan;
Burden of proof;
➥ CASE FACT/HISTORY
This is a representative action. It is between two communities in Cross River State. Ikot Iwang is one. The other is Ifiang Nsung and Ifiang Oyong. They share one name in common. It is Akpabuyo. The two communities have been in litigation for over eighty-eight years. This would appear to be the third case on record.
In suit No. C/81/77, the present suit, filed at the High Court of Cross River State, Calabar, the respondents in this appeal, as plaintiffs, claimed the following reliefs, inter alia: ‘1. A declaration that the plaintiffs are traditionally and legally entitled as of right to be made a party in any formal deed of agreement touching and concerning any part of the forest or palm plantation lands at Ifiang village and Ikot Iwang village which Ifiang community and Ikot Iwang community respectively have traditionally enjoyed together in common from time immemorial.’
After hearing evidence, the learned trial Judge, Effanga, J., dismissed the plaintiffs’ claim. He said in the concluding paragraphs of his judgment: “I am satisfied that the plaintiffs failed to adduce any credible evidence to support their claims and I am convinced that the claim of the plaintiffs is speculative, misconceived, and lacks merit. On the other hand, I prefer the evidence of the defendants, which is credible and more probable than that given by the plaintiffs, and when put on the imaginary scale completely outweighs the evidence of the plaintiffs. See Mogaji and Ors. v. Odojin and Ors. (1978) 4 SC 91 and 95. On the whole the plaintiffs’ case must fail. I hereby dismiss all their claims in this case.
Dissatisfied, the respondents as appellants filed an appeal at the Court of Appeal. That court gave them judgment. In his leading judgment, Akintan, JCA, declared: “It is accordingly declared that the plaintiffs in this case are traditionally and legally entitled to be made a party in any formal deed of agreement touching and concerning any part of the forest or palm plantation lands at Ifiang village and Ikot Iwang village which Ifiang community and Ikot Iwang village have traditionally enjoyed together in common from time immemorial. The alternative claim for an order directing the 1st defendant/appellant to pay over to the appellants the sum of E1,500 being appellants share out of the rent collected by the respondents in 1959 in respect of the lease jointly executed by the parties in favour of the Danish Agricultural Company cannot be granted as the claim is statute barred. An order for perpetual injunction restraining the respondent from unilateral alienation of any part of the aforementioned common forest at Ifiang or Ikot Iwang is unnecessary having regard to the declaratory order already granted to the appellants above.”
Dissatisfied with the judgment, the appellants have come to this court.
➥ ISSUE(S)
I. Whether the Court of Appeal was right in granting the declaratory relief on the basis of the judgments in exhibit 2 and 9?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE RESPONDENTS FAILED TO PROVE THEIR CASE
‘I should mention here that since the claim is not on title to land, the plaintiffs have no burden to prove title and therefore the decision in Idudun v. Okumagba (1976) 9-10 SC 227 will not apply. The issue before this court is that of common use and enjoyment of forest or palm plantation lands.’
‘The respondents have not discharged the burden of proving with definitive certainty the land which they claim they are entitled to be made a party in any deed of agreement and account there from.’
‘Let me take claim 1 for what it is worth. The claim is that the respondents are traditionally and legally entitled to any formal deed of agreement in respect of any part of the forest or palm plantation land which the two communities have traditionally enjoyed in common from time immemorial. The burden of proving the above claim is on the respondents. In this respect, they have to prove their traditional and legal entitlements beyond the portion of land given to them. The claim talks about “time Immemorial”. This has to do with going back to ancient times. It also means beyond human memory. Did the respondents prove the claim? I think not. I have taken time to examine exhibits 9, 2, 4 and 5 relied upon in this case and I do not see any justification for claim 1. If anything, there is plethora of evidence that the respondents are tenants of the appellants. Even exhibit 2 which is most complimentary to their case, Martindale. J. recognized the status of the respondents as tenants. Let me quote the Judge at the expense of prolixity: “Judgment therefore in C/1/1940 is entered for the plaintiff for the injunction they seek against the 1st defendants, their agents and servants from interfering with the plaintiffs in the exercise of their rights as tenants … ” I think I can stop here in the quotation. The learned Judge said quite clearly the rights of the respondents as tenants. The claim does not only look funny but ridiculous and wears the tallest ambition. The claim is precipitate. I say this because the claim is clearly against all known canons of our land tenure system both in customary law and under the Land Use Act. When did a tenant claim to share common and equal rights over property with the landlord or overlord, the owner of the property? This is against the all other rights of the owner of the property. It is also against the tenorial duty of the tenant to pay rent for the purposes of enjoying a peaceable right to the property, for the period of the tenancy, subject to good behaviour. See generally Pan Asian Ltd. v. NICON Ltd. (1982) 9 SC 1; Yusuf v. Kode (2002) 6 NWLR (Pt. 762) 231, (2002) FWLR (Pt.66) 464; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514, (1989) 2 SC (Pt.l) 69; Olale v. Ekwelendu (1989) 4 NWLR (Pt.115) 326, (1989) 7 SC (Pt.11) 62;It is my view that the respondents did not prove claim 1, and I so hold. Since all the other claims rest on claim 1 for survival, I need not say more on them.’
‘In the light of the above, the respondents are only entitled to the portion of land given to them by the appellants. They do not have any legal right to go beyond what was given to them by the appellants.’]
.
.
.
✓ DECISION:
‘The appeal is allowed. I hereby set aside the judgment of the Court of Appeal and restore that of the trial court dismissing all the claims. I award NI0,000.00 costs against the respondents in favour of the appellants.’
➥ FURTHER DICTA:
⦿ BURDEN OF PROOF IN CIVIL CASES
I think I should first deal with the burden of proof in this matter. By section 135(1) of the Evidence Act, Cap. 112. Laws of the Federation of Nigeria, 1990, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Subsection (2) of section 135 completes section 135(1) by providing that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. See generally Elias v. Disu (1962) 1 SCNLR 361, (1962) 1 All NLR 214; Abiodun v. Adehin (1962) 1SCNLR 11, (1962) 1All NLR 550;University Press Ltd. v. I.K. Martins (Nig.) Ltd. (2000) 4 NWLR (Pt.654) 584: Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 339, (1998) 6 SC 72. In civil cases, the burden of first proving the existence or nonexistence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. This is the language of section 137(1) of the Evidence Act. See Are v. Adisa (1967) NMLR 304; Elemo v. Omolade (1968) NMLR 359; N.M.S.L v. Afolabi (1978) 2 SC 79; Kate Enterprises Limited v. Daewoo Nigeria Limited (1985) 2 NWLR (Pt.5) 116; Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24;Olaiya v. Olaiya(2002) 12 NWLR (Pt.782) 652; Udih v. Idemudia (1998) 4 NWLR (Pt.545) 231, (1998) 3 SC 50. Although the burden of proof under section 137(1) generally remains with the plaintiff, it is not invariably so. As provided in the subsection, the burden of proof will be determined by the pleadings. It will therefore not be wrong to say that the burden of proof under the subsection fluctuates with the state of the pleadings and the level of fluctuation may at times go to the defendant, if he has asserted the positive fact therein. See Akinfosile v. Ijose (1960) 5 FSC 192:Noibi v. Fikolati (1987) 1 NWLR (Pt.52) 619. In most cases, the burden of proof lies with or rests on the plaintiff because he is the person who is making the claim. See Osawaru v. Ezeiruka (1978) 6 ’97 7 SC 135; Attorney-General, Anambra State v. Onuselogu Ent. Ltd. (1987) 4 NWLR (Pt.66) 547; Agu v. Nnadi (2002) 12 NWLR (Pt.780) 189, (2002) 12 NSCQR 128; Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172, (1989) 7 SC (Pt.11) 1. As a matter of law, the plaintiff has the onus of proving his case and where he fails to get the appropriate findings relevant to the reliefs he had sought, he must fail. Fashanu v. Adekoya (1974) 6 SC 83. A plaintiff who asserts the truth or existence of a fact must proof it. A mere speculative observation cannot be a substitute to prove of the fact asserted. See George v. UBA (1972) 8-9 SC 264. this appeal, the burden of proof is clearly on the respondents and that burden does not shift. It is as constant as the sun rising from the east and setting in the west; and that is the position fixed by the pleadings. See paragraphs 2,4,5,6,7,8,9, 10, 11, 12 and 13. — Niki Tobi JSC.
⦿ DESIDERATUM OF A SURVEY PLAN
It is trite law that where a land in dispute is not identifiable by one of the parties and therefore not identified, a survey plan is a desideratum. A survey plan is not only necessary in an action for declaration of title to land; it is also necessary in the situation and circumstances of this appeal where the identity of the land is in dispute. I am not creating the impression that the production in evidence of a survey plan of the land, the subject of the dispute is a sine qua non in all land cases. What is necessary is that the land the subject of the award must be ascertained with definitive certainty. The acid test, in Kwadzo v. Adjei (1944) 10 WACA 274 is whether a surveyor, taking the record of the proceedings in the case can produce a plan showing accurately the land in which the dispute has arisen. The principle that the land, the subject of the litigation must be certain is of universal application in the context of land disputes, as it applied to this case where the certainty of the land is in dispute. See Arabe v. Asanlu (1980) 5 – 7 SC 78 and Lbenye v. Agwu (1998) 11 NWLR (Pt. 574) 374, (1998) 9 – 10 SC 18.In Omoregie v. ldugiemwanye (1985) 2 NWLR (Pt.5) 41, the Supreme Court held that one of the ways of showing the specific area of land claimed is to file a plan of the area; such plan being property orientated, drawn to scale and accurate and reflecting the boundary features. See also Lawson v. Afani Continental Co. (Nig.) Ltd. (2002) 2 NWLR (Pt.752) 585, (2002) FWLR (Pt. l09) 1736. The burden is on the respondents to prove the boundary of the land in dispute. See Ekwealor v. Obasi (1990) 2 NWLR (Pt.131) 231; Onuwaje v. Ogbeide (1991) 3 NWLR (Pt.178) 147; Reg. Trustees M.M.H.C. v. Adeagbo (1992) 2 NWLR (Pt.226) 690;Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182, (1989) 1 SC (Pt.II) 1; Akulaku v. Yongo (2002) 5 NWLR (Pt. 759) 135, (2002) FWLR (Pt.100) 1228. — Niki Tobi JSC.
⦿ PURPOSE AND WHEN TO FILE A COUNTER-PLAN
Learned Senior Advocate for the respondents dealt with the failure of the appellants to file a counter-plan. An adverse party can only file a counter plan where there is an existing plan. The main purpose of a counter plan is to counter or counteract an existing plan, to expose it as incorrect or inaccurate. Accordingly, where there is no existing plan, as in this appeal, there is no need for a counter plan as there is nothing to oppose, challenge or counter. I can still take the issue one step further and this is obiter. Where a party has filed a plan, which the adverse party feels does not adequately address the claim before the court, he need not file a counter plan. After all the burden is on the party relying on the identity of the land to succeed in his case to prove such identity. — Niki Tobi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Tobi, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Professor S.A. Adesanya.
⦿ FOR THE RESPONDENT(S)
Chief Adetunji Fadayiro.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
