issues of deed of coveyance

To avoid confusion and another (fresh) dispute where, by mistake, an injunction order and/or final judgment gets slammed and applied upon land areas different from the particular land area forming the subject matter of the litigation, the court can only properly assume jurisdiction over land which the parties are well able to identify and agree to what extent of it they are disputing.

For this reason, the first task for a Claimant in a land dispute matters is to identify the land for which he is in court. A court can only grant injunctive orders or final judgments over identified area of land about which the boundaries of the area or areas affected are ascertained, well known and properly described. The plaintiff seeking a declaration of title to land and injunction thereon must establish to the satisfaction of the court the identity of the land in dispute with precision. The above can best be achieved through the tendering of survey plan that displays the extent in land mass and features on the land or by offering oral evidence that are clear and unambiguous as can guide a surveyor, using that description, to produce a survey plan therefrom. The truth is that this oral description is not easily so clearly understood and acceptable to the parties, and the court. It has its limitations, hence the preference for survey map as not only can they can be charted for precise scientific location and measurement, they are more helpful as being more amenable to comparisons.

The filing of a survey plan is not a necessity or a sine quo non to the notion that the description or identity of the land in dispute has to be established. If the parties are in agreement as to the location and identity of the land in dispute, that matter would no longer be an issue. What is called for is the certainty or definite identity of the land in dispute before an injunction order can be made, therefore, an application for an interlocutory injunction in circumstances of uncertainty or a lack in the definiteness of the land is to say the least premature being a matter for the substantive hearing of merits of the case since the resolution of such a serious conflict cannot be affected without oral evidence. Adeleke & Ors. V. Lawal & Ors. (2013) 3 NWLR (Pt. 1393) 1; Kufeji V. Kogbe (1961) 1 All NLR 113; Suleman V. Ukana(2019 ) HELAR ratio 3

The plaintiff must properly describe the land in dispute with all certainty and correctness and in the alternative file a survey plan alongside the application for interlocutory injunction to show sufficient description of the boundaries or extent of the land over which the said order of interlocutory injunction is to operate. See Ichu V. Ibezue (1999) 2 NWLR (Pt.591); C.G.C (Nig.) Ltd V. Baba (2004) 10 NWLR (Pt.541); H ashim V. Minister, FCT (2002) 15 NWLR (Pt.789) 159 @ 171. Giwa V Anzaku (2019) HELAR ratio 9

No. The court cannot grant perpetual injunction where there is no survey plan in respect of which the injunction could be tied or applied. The acid test on identity of land in dispute for declaration of title and injunction is whether a surveyor taking the record of proceedings can produce a plan showing accurately the land to which an injunction is to be tied to.

The two ways of establishing identity of a land in dispute as enunciated in the case of Kwadzo v. Ajei (1944) 10 WACA 274 & Udofia & Anor v. Afia & Ors. (1940) 6 WACA 216 and reinterated by Chukwuma - Eneh, JSC in the case of Odunze v. Nwosu (2007) 13 NWLR (Pt.1050) 1 as follows: 1. The plaintiff adducing oral description of the land in dispute that a surveyor acting on the strength of the description can make a plan of the land. 2. The plaintiff filing a survey plan showing the land in dispute with its boundaries. Any of the above method is sufficient in describing a land in dispute. Suleman V. Ukana (2019 ) HELAR ratio 3

In describing a disputed land, evidence must be led and pleaded on: (a) The location and boundaries of the area of the land the plaintiff is claiming; (b) Their neighbours on all sides of the boundaries, where some boundaries are marked by rivers, roads and their names; (c) Any other physical features on the land like rocks, buildings, trees etc may assist its identification. Olokunlade v. Ademiloye (2011) 15 NWLR (Pt. 1269); Dauda v. Iba (2007) 2 NWLR (Pt. 1018) 321 at 347-348; Ohimogbo v. Idih (2018) HELAR ratio 9

Usually, in most instances, survey plans are hardly filed and pleaded at customary and native courts. In the case of Omotayo v. Ayodele (1993) 8 NWLR (Pt. 314), it was held per Ogundare, J.C.A as follow: In cases originating from customary and area courts once the description of the land given is so clear that it leaves neither the defendant nor the court in doubt as to the specific land claimed that is to say that the description will guide a surveyor in producing a survey plan, it is enough. Akinola Baruwa v. Ogunsola (1938) 4 WACA 159.Also, where the plaintiffs gave evidence of the identity of the land or boundaries of the disputed land and a court on inspection of the land found it to be so, that is sufficient proof of it. Kakarah & Anor v. Imonikhe & Anor (1974) 1 All NLR (Pt.1) 383, 396; Ezeudu v. Obianwu (1986) 2 NWLR (Pt.21) 208 at 220. Ohimogbo v. Idih (2018) HELAR ratio 9

The party or plaintiff seeking to rely on the judgment of a customary court delivered without a survey plan should produce a survey plan and attach same to the customary court judgment and plead same in the subsequent suit at the high court in order to prove that the land that was adjudicated upon at the customary court is one and the same land now in dispute at the high court., except where the identity of the land is not in dispute. See Salawu Yoye v. Olubode & Ors (1974) 10 SC, pp. 214-215; Orisalade v. Adeniran & Ors (1986) 4 C.A. (Pt. 1)

As per Niki Tobi, J.S.C in the case of Archibong v. Ita (2004) 1 SCNJ stated thus: “it is trite that where a land in dispute is not identifiable by one of the parties and therefore not identified, a survey map is a desideratum. A survey plan is not only necessary in an action for declaration of title to land, it is also necessary in the situation and circumstances of this appeal where the identity of the land is in dispute. I am not creating the impression that production in evidence of a survey plan of the land, the subject matter of the dispute, is a sine qua non in all land cases.”

In the determination of a land dispute, survey plan is not necessary and can be dispensed with in the following circumstances: (a) Where there is a proper description of the land; (b) Where there is no dispute as to the boundaries of the land; and (c) Where all the parties are not in any doubt as to the boundaries of the land. C.G.C. (Nig.) Ltd. v. Baba (2004) 10 NWLR (Pt.882), p.676, B-D; Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360. Giwa V Anzaku (2019) HELAR ratio 9; Adekunjo & 4ors v Hussain & 4ors (2020) HELAR ratio 2

The very purpose or basis of a survey plan is to identify the land in dispute. It is also to delimit the land with sufficient particularity. It is also to show graphically the morphology of the area, and its extent and size. Nnadozie v. Omesu (1996) 3 NWLR (Pt.446), p.126 paras. D-E; Oyefoso v. Coker (1999) 1 NWLR (Pt.588) p. 661, Para. B. That way, nobody relying on that judgment of Court would have reason to go beyond what land the judgment covers. Adam v Kime (2021) HELA ratio 7; Adekunjo & 4 ors v Hussain & 4ors (2020) HELAR ratio 2

Where a plaintiff produces, pleads, and files a survey plan in his claims, and the defendant sees a discrepancy and inaccuracy as to the survey plan filed by the plaintiff, the defendant can go ahead to produce, file and plead his own survey plan giving a different description and feature of all that he thinks will reflect or show what will prove his own defence. This is called a counter survey plan. An adverse party can only file a counter plan where there is an existing plan. The main purpose of a counter plan is to counter or counteract an existing plan to expose it as incorrect or inaccurate. Accordingly, where there is no existing plan, there is no need for a counter plan as there is nothing to expose, challenge or counter. Where a party has filed a plan, which the adverse party feels does not adequately address the claim before the court he may not need to file a counter plan. After all, the burden is on the party relying on the identity of the land to succeed in his case to prove identity. See Archibong v. Ita (2004) 1 SCNJ.

Where a defendant in a land case did not file a survey plan or his own counter survey plan, he is deemed to have accepted the boundaries of the land in dispute as presented by the plaintiff. In Chukwuedo Egwu v. Billo J. Egwu & Ors (1995) 5 NWLR (Pt.396); Adepoju v. Oke (1999) 3 NWLR (Pt.594) 154 at 165; Orodoegbulam v. Orodoegbulam (2014) 1 NWLR (Pt.1387) where a defendants in a land dispute cases did not file a survey plan or any counter survey plan, they were deemed to have accepted the boundaries of the land in dispute as presented by the plaintiffs. Suleman V. Ukana (2019 ) HELAR ratio 4.

Superimposition of plans is the exercise carried out by a surveyor and it entails placing one transparent plan on the other to make some determinations as to identity and/or distinction of land. Carrying out of superimposition by surveyors helps in distinguishing land in dispute from any other land. See Onagoruwa v. Akinremi (2001) 13 NWLR (Pt.729) 38

While superimposition of survey plan is made by a surveyor, by placing a transparent plan on the other to see the difference in its co-ordinates, comparison of a survey plan is made by the court who relates the features and boundaries in the survey plan tendered as exhibit before it as well as in relation to the evidence of the parties. Superimposition is not the duty of the court rather it is that of qualified surveyors as experts. See Okpaloka v. Umeh (1976) 9 & 10 SC; Ugbo v. Uburime (1994) 8 NWLR (Pt. 360)