OVERVIEW OF DISSENTING VIEWS ON PROOF OF IDENTITY OF LAND
Author: O. M. Atoyebi S.A.N FCIArb. (U.K.)., Contributor: BETSEABASI EYO
Land cases in Nigeria are an everyday occurrence, and the identity of land plays a very major role in winning cases of land in dispute. Despite the prevalence of land dispute cases, it may not be clear what the Supreme Court wants as definitive proof of the identity of the land. This research will take us through the judgments of the Supreme Court since 1999, progressively showing the opinions of the top-tier judges on the issue of proving the identity of land through the years.
DEFINITION OF LAND
Land means the actual soil, ground, or earth plus any buildings on it, fixtures attached to it, mines, and minerals in it. The ordinary meaning of the word ‘land’ is that of dry superficies of the earth as distinguished from water or air. Land legally includes all houses and other buildings standing or built on it. Generally, all the buildings erected upon it are land, but there are some exceptions to this general rule.[1] [1] The Black’s Law Dictionary[2] [2] defines land as an immoveable and indestructible three-dimensional area consisting of a portion of the earth’s surface, the space above and below the surface, and everything growing on or permanently affixed to it.
LAND IN DISPUTE
A “land dispute” involves conflicting claims to rights in land by two or more parties, focused on a particular piece of land. Land disputes may or may not reflect some broader conflict over land. Land disputes might include a failure to agree to the boundaries; rights of access and other rights; maintenance of boundary walls, fences, and watercourses. Disputes between a residential landlord and tenant might include compliance with lease provisions; termination of tenancy; rent arrears and recovery of rented property. Disputes between an agricultural landlord and tenant might include rent reviews; rent recovery and enforcement of lease conditions; termination of tenancy and compensation for improvements; succession and assignation of the tenant’s interest; and right to buy.[3] [1]
Litigations involving land disputes usually arise due to the infringement of an individual’s land rights by another individual, entity, or even the government. Kalgo, J.S.C in Emiri & Ors v Imieyeh & Ors[4] [2] said:
It seems to me that land in dispute means a disputed land which, as in this case, both parties are claiming to be their own.
Now, when there is a land dispute, what the person filing the case wants is for the Court to rule in his favor and declare him the owner of the land in question. For a party to get this desired result, there are two major things he must do:
- Show the identity of the land that he wants a declaration on.
- Show proof of ownership
There are five ways to show proof of ownership of the title to a piece of land. However, this work will focus mainly on examining the various methods of proving the identity of land in a Court of law, the benefits of successfully proving identity, and the effects of a failure to prove the identity of the land being claimed.
IDENTITY OF LAND
To explain this concept, we would use an analogy. Now, you are being accused of having a co-worker’s phone in your possession, for instance. When asked to describe the phone, your colleague says, ‘It’s an iPhone with a pink pouch.’ On searching through your desk and handbag, the only phone found in your possession is a Samsung phone in a purple casing. Your colleague’s case gets shot down. Even in everyday living, if you claim something as yours, you must be able to describe your property to another’s understanding, if it was yours. This applies to land too. To be able to establish a case of land in dispute, you must be able to identify the portion of land you are claiming as yours. Karibi – Whyte J.S.C in the case of Akinteriwa V Oladunjoye[5] [1] held that,
…it is the plaintiff’s first duty to prove the area over which he claims with certainty and precision.
The importance of proving the identity of the land in dispute cannot be over-emphasized. It is not merely enough to say that this is my land, it must be backed up by evidence. The Supreme Court in Atanda V Iliasu[6] [2] said;
It is also trite that the mere mentioning of the area is not enough; the description and extent of the boundaries must be proved with exactitude.
WHO HAS THE DUTY TO PROVE THE IDENTITY OF LAND?
It is trite that the onus to prove the identity of land falls to the one who brings the case. Borrowing the words of the Supreme Court in the case of Ukaegbu v Nwololo[7] [1], ‘The first duty of any claimant of title, is to show exactly and precisely, a defined and identifiable area to which the claim relates.’ Similarly, in the case of Pada V Galadima & Anor[8] [2], the Supreme Court said;
…a claimant of declaration of title to land has the burden to give clearly, the identity of the land he is claiming, because no Court should grant a declaration on an unidentified land. In short, he must lead credible evidence describing and identifying the land with certainty.
IS IT ALWAYS NECESSARY TO PROVE THE IDENTITY OF LAND IN CASES OF LAND DISPUTES?
It is always necessary to mention the name of the land involved in the case of land disputes. But in a case where the parties are in agreement about the location of the land and its boundaries, it is no longer necessary to extensively establish the identity of the land. In the words of Oputa J.S.C[9] [1], ‘the Court sits to resolve issues, when the identity of land is not an issue, then the mere production of the plaintiff’s plan in evidence is enough to establish the identity of the land.’
Where the defendant is not disputing the boundaries given by the plaintiff or the position of the land, then the identity of the land will not arise as an issue. The Supreme Court in the case of Nwokidu V Okanu[10] [2] said;
…where the identity of the land does not arise from the pleadings, particularly where the defendant by his pleadings admits the description, location, features, and dimension of the land, the identity of the disputed land is not a question in issue and does not require proof.
The identity of land only becomes an issue when the defendant makes it one.
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[11] [1] 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[12] [2] 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[13] [3], 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[14] [4], 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[15] [5] 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[16] [6] 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.
AT THIS TIME…
Presently, the Supreme Court’s decision on issues involving the identity of land is that although a survey plan is good and okay due to its efficiency in showing boundaries, it is not mandatory to prove a case of identity of land, as far as the Plaintiff can show with certainty the land to which he refers. In the case of Pada v Galadima & Anor,[17] [1] the Supreme Court held to the effect that a plaintiff must lead credible evidence describing and identifying the land with certainty.
EFFECTS OF FAILURE TO PROVE THE IDENTITY OF LAND
Since Top of FormBottom of Formgreat importance has been attached to proving the identity of land, then it stands to reason that failure to successfully prove identity can be fatal to a case. This was the position of the Court in Dike & Ors v Okoloedo & Ors[18] [1] where it held that
…If a plaintiff fails to fulfil the requirement that is to prove or establish the identity of the land in dispute, his claim for a declaration of the statutory right of occupancy will be dismissed.
Also, the Court in Ukaegbu V Nwololo[19] [2] had the same opinion, when it said;
…a plaintiff failing to prove the boundaries of land he asserts to be in dispute, fails in the declaration of title that he seeks.
CONCLUSION
The identity of land is a major part of a trial on a case of land in dispute and its importance cannot be overemphasized. It is so important that failure to prove it makes the whole case crumble. It can be proved in several ways, amongst which are; tendering a survey plan, bringing the evidence of boundary men, etc., the most important thing is to show clear evidence of the boundaries and features of the land.
[1] ‘Land Law and Legal Definition’, Retrieved from https://definitions.uslegal.com/l/land/ [7]
[2] Garner, Black’s Law Dictionary, (St. Paul, Minn., 1999)
[3] https://www.thorntons-law.co.uk/for-business/land-and-rural-business/agricultural-dispute-resolution [8]
[4] (1999) LPELR-1132 (SC)
[5] (2000) 77LRCN 673 @705
[6] (2012) 214LRCN 220 @226
[7] (2009) 169 LRCN 218
[8] (2017) 273 LRCN 8
[9] Ezeudu v Obiagwu (1986) LPELR -1213 (SC)
[10] (2010) 183 LRCN 114
[11] (1999) LPELR -1132 (SC)
[12] (1999) LPELR -766 (SC)
[13] Supra
[14] (2009) 172 LRCN 41
[15] (2009) LPELR -515 (SC)
[16] (2014) LPELR -22915 (SC)
[17] (2017) 273 LRCN 8
[18] (1999) LPELR -946 (SC)
[19] (2009) 169 LRCN 218