HOW CAN THE IDENTITY OF LAND BE PROVED?
Over the years, the Supreme Court has had various opinions on what constitutes sufficient proof of the identity of land in dispute.
Starting in 1999, the Supreme Court held that although a survey plan was perhaps the easiest way to prove the identity of the land, it remained just a piece of evidence. So, if the plaintiff could prove the boundaries without a survey plan, then failure to produce a survey plan would not make much of a difference. Kalgo J.S.C in the case of Emiri & Ors V Omieyeh & Ors said;
One important way now commonly used by parties in land dispute is to establish the identity of the land in dispute by filing a detailed and accurate survey plan of the land showing the various features on such land sufficient to point to the clear boundaries thereof. …It also appears to me that in a claim for declaration of title to land, once there are some features or some descriptions in the evidence which make a disputed land ascertainable, the identity of the land is proved and a grant can be made with or without a survey plan.
Also, Ayoola J.S.C in the case of Bello V Fayose & Ors said;
…However, whether a plan is essential to the proof of the identity of the land is dependent on the facts of each case. Notwithstanding that, proof by a plan is the easiest and, perhaps, surest way of proving the identity of the land to which a declaration is sought. Where the identity can otherwise be defined with sufficient certainty the absence of a plan will not make a grant of declaration of title to the defined land bad, notwithstanding the absence of plan. A requirement which is purely evidential should not be converted to a technical rule.
Forwarding to five years later, in 2004, the Supreme Court held that in cases where the identity of land is an issue, then a survey plan is desired. However, this time there is a proviso that where there is no survey plan, oral evidence will be sufficient where it is so descriptive and simplified that a surveyor could draw a well-detailed plan from the description.
This was the judgment in the case of Ezekwu v Ukachukwu & Ors, where it was held that;
In an action for declaration of title to land, the onus is on the plaintiff to establish with certainty the identity of the land in dispute to which his claim is related. This, he can do in one of two ways, viz, by presenting a survey plan or by oral evidence describing with such degree of accuracy the said parcel of land in a manner that will guide a surveyor in producing a survey plan of the said land.
In early 2009, in the case of Nwokorobia V Nwogu, the Supreme Court held that to prove the identity of the land, the plaintiff must bring evidence of the land in dispute and a plan.
However, later in the year, the Supreme Court discounted this judgment in the case of Anyanwu & Ors v Nzowuaka & Ors saying,
We have in our Courts almost tacitly accepted that it is a ritual in land cases for the plaintiff to prove the features on the boundary land, call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the plaintiff is an onus to prove an issue where, therefore the identity of the land is not an issue, there, I will make bold to say that the mere production of the plaintiff’s plan is enough to establish the identity of the land. In fact, in such cases, the plan can and should be tendered by consent.
In the year 2014, the Supreme Court seems to revert to its former ruling in 2004 that identity of land may be proved using a survey plan and/or detailed oral evidence that a surveyor could draw a detailed plan. This was held in the case of Aiyeola V Pedro where it was held inter alia that
…The claimant may give an oral description of the land sufficient to make it ascertainable…or he may file a survey plan. A survey plan is not required in every case. Where an oral description is relied upon, the test is whether a surveyor can, from the record, produce an accurate plan of such land.