10/05/2026
*USULOR vs. EBONYI STATE GOVERNMENT & ANOR.(2020)LCN/15775(CA)*
*ISSUE:* PROOF OF TITLE TO LAND-
Whether a claim for title to land based on traditional evidence will fail if the custom of inheritance of the community is not established; Whether in law a person who has been adjudged a trespasser can be allowed to continue to occupy the land in respect of which he has been adjudged to be a trespasser
*PRINCIPLE:*
"The Appellant’s claim is for damages for trespass and injunction. The law is trite that a claim for trespass and injunction automatically puts title to land in dispute in issue unless the issue of title to the land in dispute had been determined in an earlier case. See UFOMBA & ANOR. V. AHUCHAOGU & ORS. (2003) LPELR-3312 (SC) AT 20 (B-D); AKINTERINWA & ANOR. V. OLADUNJOYE (2000) LPELR-358 (SC) AT 13 (C-D); OLOHUNDE & ANOR. V. ADEYOJU (2000) LPELR-2586 (SC) AT 13(B-D); ONOVO & ANOR. V. MBA & ANOR. (2014) LPELR-23035 AT 36-37 (F-A). Title to the land having been put in issue, the onus was on the Appellant to prove his title to the land by any of the five accepted means by cogent and credible evidence. As stated earlier in this judgment, the Appellant’s root of title was as stated in paragraphs 9-13 of the statement of claim. The trial Court having considered the pleadings and the evidence led held as follows at pages 212-213 of record:
“It is my view that the pleadings and evidence of the Plaintiff on this issue of the custom of Amawula town relating to land inheritance is vague. If it is the custom that the eldest son inherits the family compound and other lands elsewhere, how are those other lands according to custom determined so as to know the ones the eldest son is not entitled to which now devolves on other sons of the deceased, in this case, the Plaintiff? This was not made certain by both the pleadings and evidence of the Plaintiff. In view of the above, it is obvious that the custom of Amawula community as it relates to customary inheritance of land cannot be ascertained. It is the law that he who assets must prove. See the case of KANO V. MAIKAJI (2011) 17 NWLR (PT. 1275) 139 and A.G FED. V. A.G ABIA STATE (NO. 2) (2002) 6 NWLR (PT. 764) 542. It is my view that the Plaintiff both woefully failed to clearly plead the custom of Amawula community in Ezza as it relates to customary inheritance and to lead credible evidence in proof of same. Consequently, I hold that the custom of Ezza as it relates to customary inheritance of land of a deceased person who dies intestate was not proved in this case.”
I agree with the Appellant’s counsel that the Court misunderstood the case of the Appellant. The claim before the Court was one of title to the land in dispute and not inheritance per se. The root of title clearly pleaded by the appellant was traditional history. The averment as to custom of inheritance in Amawula Community is subsumed under the traditional history on which the appellant relied as his root of title. The law is trite that a person relying on evidence of traditional history in an action for declaration of title to land must plead and prove each of the following by cogent and credible evidence: (1) The person who founded the land and exercised acts of possession. (2) How the land was found, and (3) The persons on whom the title to the land devolved from its founder to the Plaintiff. See AWODI & ANOR. V. AJAGBE (2014) LPELR-24219 (SC) AT48 (B-F). By the pleadings and the evidence led, the Appellant succeeded in tracing the devolution of the title to the land in dispute from Ukpa, the original owner who was the first to deforest the land to Nwite to Usulor Nwite to the Appellant. His evidence of traditional history was not challenged or discredited under cross examination. The Appellant’s evidence of traditional history that the land in dispute originally belonged to his ancestor was confirmed by all the respondent’s witnesses including the traditional ruler of the community, DW4. On the traditional evidence of the Appellant, the Court below made the following finding at pages 216-217 of the record:
“To succeed in an action for damages for trespass, the Plaintiff must prove actual possession. It is also to be noted that proof of ownership is prima facie proof of possession. See the case of BADEJO V. SAWE (1984) 6 SC 350. Though title was not part of the claim of the plaintiff, in his pleadings and evidence, the Plaintiff traced his title to the land in dispute and how he came to be the owner of the land and has remained in possession of same, and cultivating same personally or through his brothers since the demise of his father in 1995 without any challenge from anybody.
Defendants however challenged his claim in their statement of defence and averred that land is a communal land and not that of the father of the Plaintiff and that Plaintiff and his ancestors had never farmed on the land. But in their evidence, the witnesses to the Defendants testified that the land in dispute originally belonged to the family of the Plaintiff but, was donated to the community over 20 years ago alongside five other families for the expansion of Onu Nworie market by the senior brother of the Plaintiff, Nwite Nwusulor, also known as Michael Nwusulor. In fact, DW1 stated that part of the Plaintiff’s land where the hospital is situated is not up to one plot. DW3 also stated that some part of the land in dispute belong to the Plaintiff.”
The law is trite that traditional evidence if found to be cogent and credible and accepted by the trial Court is sufficient for a grant of declaration of title. See RUNSEWE & ORS. V. ODUTOLA (1996) LPELR-2964 (SC) AT 9-11(F-E).
The law is settled that in a claim for declaration of title, a Plaintiff must succeed on the strength of his case and not on the weakness of the Defendant’s case. However, the Plaintiff is entitled to rely on the evidence of the Defendant which supports his case. See SORONNADI & ANOR. V. DURUGO & ANOR. (2018) LPELR-46319 (SC) AT 22-23; TUKURU & ORS. V. SABI & ORS. (2013) LPELR-20176 (SC) AT 22 (A-B). There is no appeal or cross appeal against the above finding which is amply supported by the evidence on record. The Court below having held that the admission of the Respondents’ witnesses that the land in dispute is that of the Appellant supported the Appellant’s claim that he is the owner of the land in dispute, the Court totally erred in law when it turned round to hold at pages 218-219 of the record that:
“On the issue of witnesses to the defence admitting that the part of the land in dispute is that of the Plaintiff in my view goes to support the claim of the Plaintiff that he is the owner of the land in dispute. However, it is a settled principle of law that a person who makes allegations in a pleading is by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleadings. The burden of proof is on the party who takes another to Court seeking a relief or a right to prove his claim. See the case of UTC (Nig) Plc V. Philips (2012) 6 NWLR (PT. 1295) 136. As earlier held in issue no 1 in this judgment, Plaintiff relied on the Ezza custom of inheritance to land to claim ownership of the land in dispute which custom he failed to lead evidence in proof of its existence. The weakness of the case of the defence in the present circumstances cannot avail the Plaintiff because he is required in law to rely on the strength of his own case, and not on the weakness of the case of the defence. See the case of Adesanya V. Aderonmu (2000) 9 NWLR (PT. 672) 370.”
Civil cases are decided on preponderance of evidence which means the evidence adduced by the Plaintiff is put one side of the imaginary scale of justice while the evidence of the Defendant is put on the other side of the same scale to see which one weighs more than the other. See EZEMBA V. IBENEME & ANOR. (2004) LPELR-1205 (SC) AT 54-56 (D-A). The Respondents pleaded that the land in dispute is a communal land owned by the people of Amawula Community but did not lead a scintilla of evidence in support of that claim. Rather, all the Respondents’ witnesses confirmed the appellant’s claim that the land belonged to his ancestors. DW1 confirmed that the appellant’s family have been on the land. He said Sunday Usulor donated a family land for the market. He however confirmed that according to Ezza custom, Usulor Nwite’s land belong to the Plaintiff and his brothers after Usulor Nwete’s death. DW2 testified at page 183-184 of the record of appeal as follows:
“Egwuonwu- what was the complaint of the Plaintiff
DW2- That his land is being snatched away from him. He is not the only one that own land there. They are six of them. Before market was installed on the land, his senior brother, the first son was consulted. Plaintiff did not object. He only raised objection now that hospital is built on the land. His own land was not the only one taken for market purpose.”
DW4 said the land in dispute belonged to the Appellant’s family but it was transferred to the community about 20 years ago precisely by the elder brother of the Appellant. He also said he got the approval of the Appellant before the Respondents were taken to the land. On the above pieces of evidence, the Court below held at pages 217-218 of record that:
“May I quickly state that the evidence that it was the senior brother of the Plaintiff that donated the land to the community more than 20 years now was not part of the pleadings of the defence. It is trite that evidence on facts not pleaded is not admissible. Hence, the above piece of evidence by the defence is hereby expunged from the record. Assuming but not conceding that the evidence is admissible, it is worthy of note that the said Nwite Nwusulor co-authored the disclaimer to the Plaintiff’s claim dated 10/12/2013 and had his sworn disposition on oath frontloaded as one of the witnesses to the defence in this suit. Curiously, the said Nwite Nwusulor was the only witness for the defence as frontloaded who was not called to give evidence of the alleged donation of the land in dispute to the community. If the community was sure of their claim, they should have pleaded same in their statement of defence and called to testify in Court, Nwite Nwusulor from whom they claim title to the land in dispute. It is my view that failure of the defence to call as witness the man they claim to derive title from amounts to withholding evidence under Section 149(d) of the Evidence Act, 2011 and I so hold.”
There is no appeal against the above finding. The law is settled that where there is no appeal against a specific finding of the Court which is material to the case, both parties are deemed to have accepted the finding as correct and are bound by it. The Respondents are bound by the above finding of the Court below. With the above finding, the defence of the Respondents totally collapsed. The result is that there was no evidence from the Respondents which could have been put on the Respondent’s side of the scale. The further result of the finding is that the evidence of traditional history adduced by the Appellant remains uncontroverted and having been found to be credible and accepted by the Court below, it was sufficient for a declaration of title in favour of the appellant. In addition to the uncontroverted and unchallenged traditional evidence of the appellant, he was entitled to rely on the admission and other pieces of evidence from the respondents which supported his claim of title to the land in dispute.
When a Plaintiff has successfully established his title directly by traditional evidence, there will be no need to prove further acts of ownership numerous and positive enough to warrant the inference that he is the exclusive owner or that he is in exclusive possession because possession is ascribed to the person who has a better title to the land.
The Court refused to grant the Appellant’s claim for an order compelling the Respondents to vacate the land. The reason for that refusal was stated at page 220 of the record as follows:
“It is also worthy of note that part of the reliefs sought by the Plaintiff is an order of this Court directing the Defendants to vacate the land in dispute. From evidence adduced by both parties, as at December 2012 when the Plaintiff served notices of intention to sue the Defendants, the building project had been handed over to Amawula Community by the construction company. The hand over letter though not tendered as exhibit was pleaded by the Defendants and was filed along with their statement of defence. The letter was dated 26/11/2012. As at the date of the suit therefore, the people on the disputed land were Amawula Community. The witnesses in this case were members of the said community and their Ezeogo. From their pleadings and evidence, it was the community acting through their leaders as earlier mentioned that authorised Messrs Mutuna Construction Company Ltd. to enter into the disputed land to construct the hospital building under MDG/CGs programme. In the light of the above, I am of the view that the Plaintiff when he requested the Court for an order directing the Defendants to vacate the land in dispute proceeded against the wrong parties as the present Defendants have not been on the land from the inception of the suit.”
The reason for the Court’s refusal to grant the other for vacation of the land is untenable in law. Trespass to land is an unlawful interference with an exclusive lawful possession. First, there is no legally acceptable reason to allow a person who has been adjudged a trespasser to continue to occupy the land in respect of which he has been adjudged to be a trespasser. Secondly, the Respondents were trespassers ab initio, they had nothing to handover to the community. Thirdly, there is no cogent and credible evidence to show that the building has been handed over to the community before, during or after the institution of the suit at the Court below. Fourthly, the law is settled that when parties have approached the Court for the settlement of their dispute, none of them should take the law into his own hands or do anything that is capable of foisting a situation of fait accompli on the Court. Even, if the Respondents continued with the construction of the building and handed over same to the community inspite of the Appellant’s protest and service of notices of intention to sue on them, the Court should not allow the Respondents to get away with their action which obviously is aimed at frustrating the course of justice. Fifthly, the Court below was wrong to rely on the alleged hand over letter which was not tendered and admitted as an exhibit before the Court. The Appellant had no opportunity to test the veracity and truthfulness of the content of the letter. A Court is not allowed to place reliance on a document pleaded and front loaded but not tendered as an exhibit and which has not been subjected to cross examination by the opposing party as doing so tantamount to denying the opposing party the right to fair hearing. See WASSAH V. KARA (2015) ALL FWLR (PT. 769) 1034 AT 1052-1054. The Respondents’ unlawful entry on the land is an act of trespass. They are the proper parties to the suit. At most, the Amawula Community is a desirable party but not a necessary party. The Court below was wrong to have held that the Appellant proceeded against the wrong parties." Per BOLAJI-YUSUFF, JCA