LAND LAW: FIVE WAYS OF PROVING OWNERSHIP OF A LAND IN A DISPUTE

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Land Disputes are very common in Southern Nigeria because of the growing scarcity of land for agriculture, housing development, and the development of infrastructures.

We readily agree with economists who state that land is in short supply and accept the Biblical insights that God has since stopped creating land and rested. Human populations on the other hand have continued to increase with associated problems of housing and food security.

This explains why we have increasing litigations in our states especially in the South east where the demand for land has led to large scale migrations and many in our lands buy land at such exorbitant costs or engage in exploratory adventurous litigations.

In Igbo land, the ownership of land itself exemplifies citizenship. The emergence of landlessness for indigenes is however now an emerging phenomenon. Over two hundred land based litigations are filed at least weekly in all the south Eastern states. Many issues relating to land are determined by the amaala in Igbo society with increasing regularity often relating to the determination of title or family partitions with oral history beyond living memory running for generations.

However our courts are prepared to adjudicate on the issues and the Supreme Court has made very brilliant illuminations on how the titles to land are determined in a legal dispute.

It is important to point out that in our legal system, it is the duty left to the plaintiff who claims title and asserts to prove his title.

In ETIM V OYO (1978) 6-7 SC 91 at 97-98 the Supreme Court observed “This court has consistently held that in an action for title to land, the onus is always on the plaintiff to establish is entitlement to a land mass with ascertainable boundaries”

It is therefore of utmost importance that in a land litigation, the plaintiff must establish the boundaries of the disputed land with clarity and certainty. See OLADIPUPO VOLANIYAN (2001) NWLR (PT 642) 536. See also ELEMO V AKENZUA (2000) 13 NWLR (PT 683) 92.

The general principles for establishing title to land were set out by the court in IDUNDUN V OKUMAGBA (1976)910 SC 229.

The Supreme Court has followed its own decisions in variety of cases. In ELEGUSHI V OSENI (2005) 14 NWLR (PT 945) AT 348 the Supreme Court stated that “pertinently, there are five ways of establishing the ownership of land   viz

1.    By traditional evidence.

2.    By acts of Ownership extending over a sufficient length of time which acts are numerous and positive enough to warrant the inference that they are owners

3.    By acts of long possession and enjoyment of the land in dispute

4.    By the production of the documents of title which must be authenticated

5.    By proof of possession of connected or adjacent land in circumstances rendering it probable that the owners of such connected or adjacent land would in addition be the owners of the land in dispute. On this principle there are many cases that speak with one voice including but not limited to the court in OGUNBIYI V ADEWUNMI (1988 )5 NWLR (PT 93 )215 SC AT 227.See also AMOBI V AMOBI(1996) 8 NWLR (PT 469) 638 SC See also TEWOGBAID V OBADINA (1994)4 NWLR (PT 338) 326 SC.

TRADITIONAL EVIDENCE.

However with respect to traditional evidence of ownership, it is trite law that where the plaintiff’s traditional evidence of ownership is in conflict with the defendant’s evidence, this may render the traditional history unreliable. this is because proof of ownership of land by traditional history is usually based on hearsay evidence that is oral evidence often extending beyond human memory , handed down from generation to generation up to the present one According to the view of the court in Elegushi V Oseni supra.

Thus it is a settled law that where traditional evidence of the parties in a land matter is in conflict or inconclusive, the court  should not go by the credibility of the witnesses but should examine the acts of ownership or possession done by either party in recent times in relation to the land in dispute. See IDUNDUN V OKUMAGBA supra. KENON v TEKUM (2001) FWLR (PT70) 660 SC

However, the SC court has decided that in other to establish traditional evidence of title according in ELEGUSHI V OSENI Supra the plaintiff must plead such facts as

1.    Who founded the land in dispute

2.    How they founded the land

3.    The particulars of the intervening owners through whom they claim.

Failure to do this is fatal to the case based on traditional history as the     plaintiff succeeds only on the strength of his case but not on the weakness of the defense.

 

ACTS OF LONG POSSESSION AND ENJOYMENT. The proof of acts of long possession and enjoyment in a land dispute affords a party a prima facie evidence of ownership under section 146 of the evidence act. See IKECHUKWU V OKAFOR (1961)2 SCNLR 369

ACTS OF OWNERSHIP of the land, naming the land after their ancestors, dwelling on the land, selling and dealing with same over a long period of time tilts the case in favour of a party. There is further a presumption of ownership in favour of such a party under section 146 of the evidence act.

From a careful analysis of legal precedents on land adjudication in Igbo land, it is very clear that much of the cases are built on traditional history as much of these litigations arise in rural areas where the practice of registration of title are unusual and undocumented and great reliance with sometimes mind boggling accuracy are placed on oral traditional history and acts of ownership as the means to assert title.

Nevertheless, the Supreme Court in ELEGUSHI V OSENI supra illuminates somewhat the duty placed on courts to discard traditional histories in the event of conflicts thus:

“Where the traditional histories or evidence of the parties in a land matter are in conflict or inconclusive, the court should examine the acts of ownership or possession done by either party in recent times in relation to the land in dispute and see which of the two competing histories is more probable”

DOCUMENTARY EVIDENCE OF TITLE is very effective means of establishing title but this requires authentication. In Nigeria, the land registries and ministries have grown very corrupt and render authentication even very difficult.

It is not unusual for competing parties to produce two different C of O issued by the same body and or signed by the state governor over the same land in dispute. There is therefore the need for authentication.

I recall a matter that I was involved in 1998 involving chief X, a builder, my client and the estate of chief Y, represented by his children who have now come of adult age. It followed that my octogenarian client had served Chief Y when he was alive who owned a vast estate of over two square miles in an Area where a popular university is located in Lagos. At the time Chief y died his children were infants and chief x took the opportunity to sell the estate to him. There arose a dispute as to ownership between the deceased estate and chief x, who refused settlement of a handsome nature.

Chief x indeed had a good case  founded on fraud but his first lawyer in a pre action letter had written and attached the purported chief x title, a  dubious conveyance which in my view was unnecessary at that time to be sent.

Chief X had forged his document of title from a lease agreement, he laid his hand on soon after the war before the promulgation of the land use act and in the purported conveyance transferred the property to himself referring to himself as a lessee, and Chief Y as lessor and the word tenant appearing in the body of the conveyance here and there. As a lease there was no term certain created but an outright sale!

If the first lawyer had read the deed he would not have sent it as Chief X who was in Possession of the land had exercised rights of ownership for over two decades.

And for me nonetheless, it is the duty of a lawyer to be honest to his client and the court and make representations based on integrity. This is of no lesser importance than the consideration of winning a case. Or becoming rich which is inevitable for any lawyer, no matter how long it takes. Honesty remains the best policy.

Many of the cases we have in our courts today are often frivolous and by Jove (whoever that may be!) repeated adjournments and intrigues of frivolous motions, delays have been occasioned which has created grave injustices and hardship on the true owners of the land in terms of costs. Fortunately, there have been marked improvements in our procedures and laws and these delay tactics will soon be a thing of the past.

To win a Land case requires preparation and not mere narration of oral history and more depends on your lawyer who has to prepare you in addition to himself.

 

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