Adopting several Methods to establish title To Land: The evidential value of A survey plan

 

INTRODUCTION

A lot of persons may lose their landed properties tomorrow because of misinformation. To some persons, once they are given any document relating to any piece of land they seek to purchase, they feel they have gained ownership. Unfortunately, some of these documents go to no issue and in fact, weigh nothing when they are presented before a court of justice in an attempt to prove title.

We shall through this article, attempt to briefly explain what it means to have title to land, state the various ways through which title to land is established in Nigeria, and then answer the question of whether one must approach the court with more than one method of proof of title for him to be successful in a law suit, and finally discuss the probative value of a Survey Plan in a suit involving proof of title to land.

Before we run into accomplishing the tasks as highlighted above, it is imperative to define here, the key concept that make the subject of this paper. Land, according to Black’s Law Dictionary, “is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substances”. “Land, in the business sense, can refer to real estate or property, minus buildings, and equipment, which is designated by fixed spatial boundaries”, according to investopedia.

“ ordinary parlance, ‘land’ in this country includes the very land itself, the surface soil together with things on it which are enjoyed with it as being part and parcel of the land by nature such as streams and palm trees. It also includes houses, buildings and all other artificial structures whatsoever, as well as any estate, interest or right in, to or over the land.” See page 6 of P. Oluyode’s, Modern Nigerian Land Law (Evans Brothers Nigeria Publishers Ltd 1989).

Title to land “connotes the existence of facts from which the right of ownership and possession could be inferred, limitation being in terms of time. See Ogunleye v Oni (1990) 2 NWLR (Pt. 135)784.

It is the degree of control and forms of control, use and enjoyment that are recognized and protected by law. Title may be absolute or restricted, the former is synonymous with ownership while the latter may amount to possession; a mere subtraction from, but part of superior title. A claim to title may be original or derivative. Original creates a right de novo (afresh, like it existed from the beginning) and may be acquired through self-help such as settlement or conquest (such settlement or conquest must be accompanied by animus possidendi). A derivative title is acquired through transfer of an existing right to another either absolutely or subject to conditions. In other cases, however, the fact which vests the right in the holder is title. A mere occupational right does not vest title in any way except there is animus possidendi (a manifest intention to take control or appropriate to oneself the exclusive use of the premises) amounting to a single and exclusive possession in law.” See page 41 of I. Smith’s, Practical Approach to Law of Real Property in Nigeria (2^ndedn., Ecowatch Publications Limited 2007).

 

The Supreme of Nigeria, in several cases that expanded the decision in Idudun v. Okumagba (1976) 10 SC 227, spelt out the five ways through which title to land can be established. See also Mogaji v Cadbury Nig. Ltd (1985) 2 NWLR (Pt. 7) 393 at Paras D-F; Atanda v Ajani (1989) 3 NWLR (Pt. 111) 511 at 533, paras. B-D; Aweni v. Olorunkosebi (1991) 2 NWLR (Pt. 203) 336 at 344-345, paras. E-C.).

The said 5 ways are;

1. Through traditional evidence Ojoh v Kamalu (2005) 18 NWLR (Pt. 958) 523; Eze v Atasie (2000) 10 NWLR (Pt. 76) 470.
2. Through the Exercise of Numerous & Positive Acts of Ownership over a sufficient length of time to warrant the inference that the person exercising such act is the true owner of the land. See Ekpo v. Ita 11 NLR, 68.
3. Through Production of Document(s) of Title which must be Duly Authenticated . See Dabo v. Abdullahi (2005) 7 NWLR (Pt. 923) 181
4. Through Acts of Long Possession and Enjoyment of the Land. See Akinloye& Anor v. Eyilola&Ors (1967) NSCC vol. 5, 16; Awara v. Alalibo (2002) 18 NWLR (Pt. 799) 484.
5. Through Proof of Possession of Connected or Adjacent Land (The Continuity Rule). See Okechukwu v. Okafor (1961) 1 All NLR 685; Oransanye v. Osula (1976) 6 SC 21

WHETHER ONE METHOD WILL SUFFICE TO PROVE TITLE

The Court in Balogun& Others v. Akanji& Others- 3PLR/2005/21 (SC); (2005) 14 NWLR (Pt. 945) 545, as well as in cases like Ekpo v. Ita (1932) 11 NLR, p. 68; Kojo v. Bonsie (1957) 1 W.L.R 1223), have stated that there is no onus on a plaintiff who claim title by Traditional Evidence and who successfully establishes his title by such evidence to prove further acts of ownership numerous and positive enough to lead to the inference that he is exclusive owner. Where a plaintiff has proved his title directly by Traditional Evidence there will be no need again for an inference to establish that which had been already directly proved. Acts of ownership becomes immaterial only where the traditional evidence is inconclusive… Where the traditional evidence led was conclusive, there would be no need whatsoever to require further proof. That will be increasing unnecessarily the burden of proof on the plaintiffs. That will be wrong. Simply put, any one of the five different methods is sufficient.

Notably, each of those methods stand separate and parallel. One is to be distinguished from the other. However, it is permissible for a plaintiff to plead in the alternative. He may choose to rely on several methods, so that where he fails on the former, he may well succeed on the latter because in their nature both are different . [Balogun (n 16)].

S.T. Hon summarised it this way:

It is settled law that a party is free to rely on one or more of the above-listed methods of proving title to land. See Gbemisola v. Bolarinwa (2014) 9 NWLR (Pt. 1411) 1 at 21 S.C.. Thus, it has been held that a party is free to plead and rely on both evidence of tradition and other modes of acquiring title to land, including acts of possession; hence where he pleads and relies on these, his case can only be dismissed if he fails to prove all his roots of title- not just when his traditional history is found to be inconclusive. See Mkpinang v. Ndem (2013) All FWLR (Pt. 666) 468 at 475 S.C.). See also S Hon, Law of Evidence in Nigeria (3^rdedn., Pearl Publishers International Ltd 2019)1230.

THE EVIDENTIAL VALUE OF A SURVEY PLAN

When seeking the Court’s declaration of title (to land), it is important for the plaintiff to furnish the court with evidence identifying or ascertaining definitely, the particular land, upon which declaration is sought, as well as its source of title. See Okoko v. Dakolo (2006) All FWLR (Pt. 336) 201. S.C.

The burden of identifying the land is usually on the plaintiff. A plaintiff’s claim would be dismissed where he fails to discharge this duty. See Udofia v. Afa 6 WACA.

And where the particular area claimed is not in agreement with the survey plan so tendered, the plaintiff’s action for declaration of title would fail entirely. See Alade v. Dina, 17 NLR 32; Ekpemupolo v. Edremoda (2009) All FWLR (Pt. 473) 1220 SC; Ogunyomi v. Ogundipe (2011) All FWLR (Pt. 594) 188 CA; Onu v. Agu (1996) 5 NWLR (Pt. 451) 652 S.C.

According to S.T. Hon [S Hon (n 19)1239], a plaintiff can establish with certainty the identity of the land in dispute “in one or two ways”- either by oral evidence describing with such degree of accuracy the said parcel of land in a manner that will guide the surveyor in producing a survey plan of the said land – or better still by the claimant filing a survey plan reflecting all the features of the land showing clearly the boundaries.” See Oke v. Sotunde (2019) 4 NWLR (Pt. 1661) 119 at 134-135 CA; Addah v. Ubamdawaki (2015) All FWLR (Pt. 775) 200 at 215 S.C.

Explicitly, a survey plan is a land’s ID Card. It is the map through which a piece of land is visited and recognized. What a survey plan does is to assist in establishing the identity of the land in dispute. A party seeking to be declared the owner of a piece of land can be assisted by a survey plan to the extent of discharging the duty of identifying the land. Clearly put, the purpose of a survey plan in a land matter is to identify the land a party is claiming with ascertainable boundaries. See Arabe v. Asanlu (1980) 6 SC, 78.

A survey plan does not confer title; the only document that can prove any passing of title would be Conveyance or an Assignment (Deed of Assignment). See Bello v. Birma (2014) LPELR- 23969 (CA); Ezeigwe v. Awudu (2008) 11 NWLR (Pt. 1097) 158. The Court will be attentive to a survey plan to the extent of it establishing identity. The survey plan would however suffer probative worthlessness if it seeks to on its own, prove ownership. A survey plan is needed to give accurate measurement and description of the land while drafting a deed of assignment which is the document that transfers title to land . Also note the judicial requirement in Atolegbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 that every survey plan be countersigned by the Surveyor- General of the State, failure of which will make it inadmissible, matter how well or properly drawn it is.

Notably, where the identity of the disputed land is not in issue or where parties have no disparity in their description of the disputed land, the plaintiff may be doing nothing more than erring on the side of surplusage in producing a survey plan. A survey plan in this instance, will only come to stand aloof, doing nothing. This, I think is because, by simple rule of evidence, facts that are admitted need not be proved. See The Section 20 of the Evidence Act of 2011; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Ndukwe v. LPDC (2007) 5 NWLR (Pt. 1026) 1 at 56. The Court further stated in Arabe v. Asanlu (supra) that:

Although, a licensed Surveyor’s plan, if available, is the best proof of the boundaries of the land in dispute in an action for declaration of title, yet, its absence need not occasion a dismissal of the action.

What is important here is that the land is properly (definitely and certainly) described and parties agree to the description.

 

CONCLUSION

As already stated above, a party can decide to rely on just one method in establishing his title to a piece of land. There is no law compelling him to adopt several methods where in his opinion one method is sufficient and has in fact, been able to establish good title. Furthermore, a survey plan merely describes a piece of land, it is an instrument of identity, not an instrument of title. Hence, any person relying only on a survey plan to lay claim to a piece of land is likely not to succeed.

RECOMMENDATIONS

1. When land is to be acquired, attention should be given to the documents with which they are acquired, as well as the value of any such document.
2. In establishing title to land, it as advisable to adopt as many methods as possible, so that where one method fails, the other may succeed. Self-contradiction should however, be avoided.
3. The services of a Lawyer should always be sought in land transactions.

 

By Augustine Vicker Azubuike Uka (LL.B, BL)

E-mail: augustineuka2014@gmail;[email protected]

Phone No: +2348130459235