ETIM & ANOR v. ETIM (2020)

ETIM & ANOR v. ETIM

(2020)LCN/14203(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, May 19, 2020

CA/C/217/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Between

EDEM ASUQUO ETIM & ANOR APPELANT(S)

And

PATIENCE EFFIONG ETIM RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT WILL ACT UPON EVIDENCE UNCONTRADICTED AND UNCHALLANGED

It is the law the Court will act upon evidence which is uncontradicted and unchallenged. See Nwakonobi vs. Udeorah (2013) 7 NWLR (pt. 1354) 499 S.C., Ighreriniovo vs. S. C. C. (Nig.) Ltd. (2013) 10 NWLR (pt. 1361) 130 S.C., Nigerian Army vs. Yakubu (2013) 8 NWLR (pt. 1355) 1 S.C., Jim-JAJA vs. C. O. P. Rivers State (2013) 6 NWLR (pt. 1350) 225 S.C. PER OWOADE, J.C.A.

WHETHER OR NOT ANY DOCUMENT PROPERLY PLEADED AND ADMISSIBLE UNDER THE EVIDENCE ACT CAN BE RENDERED UNPLEADED AND INADMISSIBLE BY A STATE LEGISLATION

WHETHER OR NOT PLEADINGS ARE SYNONYMOUS WITH EVIDENCE

It is elementary that pleadings are not synonymous with evidence and the averments in pleadings need to be proved or disproved by evidence either at examination in chief or cross examination. See Eyigebe vs. Iyaji (2013) 11 NWLR (pt. 1365) 407 SC, Olusanya vs. Osinleye (2013) 12 NWLR (pt. 1367) 148 SC, Arab Chem Ltd. vs. Owoduenyi (2013) 10 NWLR (pt. 1361) 89. PER OWOADE, J.C.A.

WHETHER OR NOT A PLAINTIFF HAS TO ESTABLISH HIS CLAIM UPON THE STRENGTH OF HIS OWN CASE IN A CLAIM FOR DECLARATION OF TITLE TO LAND

In other words, that in a claim for declaration of title to land, a Plaintiff has the burden to establish his claim upon the strength of his own case and not upon admission or any weakness in the case of the Defendant. The Plaintiff must therefore satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought.
See Gbadamosi vs. Dairo (2007) 3 NWLR (pt. 1021) 282 SC, Dada vs. Dosunmu (2006) 18 NWLR (pt. 1010) 134 SC, Onisaodu vs. Elewuju (2006) 13 NWLR (pt. 998) 517 SC, Ajiboye vs. Ishola (2006) 13 NWLR (pt. 998) 628 SC, Otanma vs. Youdubagha (2006) 2 NWLR (pt. 964) 337 SC, Dike vs. Okoloedo (1999) 10 NWLR (pt. 623) 359 SC Madubuonwu vs. Nnalue (1999) 11 NWLR (pt. 628) 673 SC, Eze vs. Atasie (2000) 6 SC (part 1) 214, Elema vs. Akenzua (2000) 6 SC (part 111) 26 at 29 – 30, Itauma vs. Akpe-Ime (2000) 7 SC (part 11) 24 at 30 -31. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Honourable Justice Charles U. Ikpe of the High Court of Akwa Ibom State Uyo Juducial Division delivered on 29th June, 2017.

By a writ of summon and Statement of Claim filed on 5th June, 2014, the Respondent as Claimant sued the Appellants/Defendants jointly and severally for trespass and special damages. Parties filed and exchanged pleadings.

The Respondent/Claimant in paragraph 20 of her Amended statement of claim on which the parties joined issues at page 83 of the Record of Appeal reads thus:
Wherefore the Claimant claims against the Defendant jointly and severally as follows:
i. A declaration that the act of the Defendants in entering upon the land of the Claimant without her consent and permission and destroyed her cultivated crops, 1 electric borehole pump and one 5000 – litres G. P water tank is wrongful and illegal.
ii. The sum of N3,700,600.00 (Three Million, Seven Hundred Thousand and Six Hundred Naira only) general and special damages against the Defendant jointly and severally for the wrongful acts of

trespass on the Claimant land.
2 (b) PARTICULARS OF SPECIAL DAMAGES:
i. 10 stands of paw-paw at N5,000.00 each – N50,000.00
ii. 20 stands of pineapple at N5,000.00 each – N10,000.00
iii. 40 plantain suckers at N2,000.00 each – N80,000.00
iv. 30 banana suckers at N1,000.00 each – N30,000.00
2 C1 Electric borehole pump/drilling and workmanship/one 5000 litres G.P water tank – N480,000.00
i. Electric borehole pump installation material – N50,600.00
TOTAL (For Special Damages) – N700,600.00
General Damages – N3,000,000.00
Grand Total – N3,700,600.00
3. An order of perpetual injunction restraining the Defendants their agents, servants and privies from further acts of trespass onto the Claimants land, subject matter of this suit.

The Appellants/Defendants retained their statement of Defence of 23rd October, 2014 where they counter claimed as shown on pages 25 -26 of the Record of Appeal as follows:
COUNTER CLAIM
1. By way of counter claim the Defendants counter Claimants repeat paragraphs 1 – 19 of the statement of defence.
2. The Defendants aver that the Claimant trespassed into the

1st Defendants family land and sunk borehole electric pump with its electrical cord and installation on the 1st Defendant’s family land. During installation of borehole economic crops were destroyed by the claimant.
3. The Claimant also trespassed into 1st Defendant’s family land and planted plantain suckers and trees.
4. The Defendant’s aver that the reason of sinking borehole electric pump with electrical cord on the 1st Defendant’s family land they have suffered losses as follows:
a. FARMING DEPRIVATION:
N300,000.00 for installation of borehole and planting plantain trees on the 1st Defendant’s family land hence depriving the 1st Defendant’s family cultivating the said portion of land.
b. DESTRUCTION OF ECONOMIC CROPS:
N200,000.00 for the economic crops destroyed by claimant during installation of the borehole on the 1st Defendant’s family land.
WHEREFORE the Defendants Counter claim against the claimant follows:
1. A DECLARATION that the 1st Defendant’s family is the owner of the land in dispute situate at Ikot Odoro Oku, Uyo Local Government Area of Akwa Ibom State,

more particularly delineated in survey plan NO. BJ/AK/22014 (LD).
2. SPECIAL DAMAGES:
a. N300,000.00 for installing borehole electric pump and planting plantain trees on the 1st Defendant’s family land hence deprived the 1st Defendant’s family from cultivating the said portion of land.
b. N200,000.00 for destroying the Defendant’s economic crops during the process of installation or borehole tank on the 1st Defendant’s family land.
GENERAL DAMAGES:
N1 million general damages for trespass.

The Respondent and the 1st Appellant are neighbours at their respective residences located at Ikot Odoro Oku village Uyo. The Respondent and the Appellants have lived together and occupying their respective plots side by side, since their respective fathers first began to live there. Their respective compounds share a common boundary on one side. By their pleadings and evidence, there was no problem between the parties on the boundary line until recently in year 2014 when the Respondent put up a borehole and erected a water tank at one end of the boundary line between the two compounds. The 1st Appellant alleged that

the Respondent thereby crossed the boundary line and encroached on his own side. The Respondent said she built the borehole and tank on her own side of the boundary and never encroached on the land of the 1st Appellant. The Respondent said in the wake of the disagreement the 1st and 2nd Appellants destroyed the borehole and tank. The 2nd Appellant was joined in the suit being the village Head of the village. He was alleged by the Respondent to have encouraged the 1st Appellant in the said act of trespass to her portion of land.

However, the 2nd Appellant sent his councilors to visit and inspect the land. The Respondent rejected the proceeding as unsatisfactory and headed for the Court also to challenge the 2nd Appellant’s verdict. The Respondent testified as PW1 and called one other witness PW2 – Mr. Uwem Sunday Udoh. The Appellants/Defendants also testified respectively as DW1 and DW2 and called Mr. Essien Udo Inyang who testified as DW3.

The Learned trial Judge recognized and noted that though title was in issue, it was clear that the main focus of the parties was on that small track of land, at the boundary line, for which each party

claims to fall on his or her side.

He further noted that the parties well know the area in dispute. The land itself is well defined. That in this respect both parties filed a land in dispute survey plan, together with certificates of deposit. That Exhibit E is the land in dispute survey plan of the Respondent while Exhibit G and G1 is the land in dispute and certificate of deposit filed by the Appellant. In addition, that the Respondent filed a property survey plan Exhibit C. All these documents were tendered by consent and without objection from either side.

After an analysis of the evidence of the parties and a comparison of the contents of the documentary evidence Exhibit G and Exhibits C and E, the learned trial judge observed at page 169 of the Records that the following facts emerge:
1. That only the Plaintiff’s father drew a property survey plan over his land which is the Exhibit C in the proceeding.
2. That the Exhibit C which was drawn in 1978 existed long before the 1st Defendant produced his land in dispute plan Exhibit G in the year 2014 for purposes of this suit.
3. That it is abundantly in evidence that during the

subsistence of the Exhibit C and in the time of both the Plaintiff’s father and the Defendant’s father there was no conflict as both sides maintained the boundary.
4. The production of a survey plan and evidence of putting of beacon pillars constitute evidence of possession of such land in line with the dimension of the plan – Adewole vs. Dada 13 NSCOR page 364.
5. In law when a survey is carved out on a piece of land and the boundaries demarcated and beacon stones implanted it is presumed that the boundaries of that piece of land have been lawfully ad legally put in place or established.

Earlier on in the course of his judgment, the learned trial judge observed contradictions and inconsistencies in the evidence of the witnesses of the Appellants/Defendants; that is DW1, DW2 and DW3.

In coming to a decision on the boundary line in dispute between the parties, he relied on documentary evidence that is Exhibit G, C and E as hanger on for the assessment of the truth of oral evidence. He concluded at pages 171 – 172 of the Record of Appeal:
Against the background of the above deliberation, I have no difficulty in

holding that on a balance of probabilities the case of the Plaintiff is far stronger and more probable than that of the Defendants. The description of the land boundaries by the Plaintiff in the Exhibits C and E were more definitive, clearer and direct in establishing the boundary line between the plaintiff’s land and the 1st Defendant. I then attach more weight on the Plaintiff’s Exhibits C and E than on the Exhibit G which I found to be tentative and lacking in facts necessary to effectively establish the boundary line. For this and all that I began to say in the foreground, which I shall not repeat here, I hold that the Plaintiff has proved the boundary line on a balance of probabilities against the 1st Defendant.

He found that the case of the Respondent/Claimant for general damages succeeds and that of special damages partially succeeds.

The learned trial judge on the other hand found that the Appellants/Defendants counter – claim fails. He held thus:
Having found in the deliberation above that the case of the Defendant counter claimant as ventilated through the paragraphs 1 – 19 of the Statement of defence was

unsupportable the counter claim invariably becomes unsupportable.
The defence counsel had sought to say that the Plaintiff filed no defence to the counter-claim. That may be so but the counter claimant must succeed on the merit of his case and presently, I have shown why the case of the Defendant in the main case cannot support the counter-claim even on its own. The counter-claim had operated on the assumption that the Defendant Counter-Claimant owned that patch of land in contention. That misconception has now been put to rest.
Again the case of the Counter Claimant could still not have been sustained as it was constituted.
The Plaintiff in suing the 1st and 2nd Defendants in the main suit sued them jointly and severally and showed what part each played culminating in the suit.
However in the Counter-Claim the claim reads:
“Wherefore the Defendants counter-claim against the Claimant as follow:”
With respect, the 2nd Defendant who was shown to be Village Head and has no interest in the land the subject matter of the counter claim cannot pretend to join the 1st Defendant to counter claim for a declaration of title to

land of another person. Where the Plaintiff has no interest in the land himself he cannot interlope to sue for the benefit of a third party. He cannot also ask for special damages or general damages in a matter he holds no interest.
For these reasons the counter-claim has not merit and fails.

Dissatisfied with this judgment, the Appellants at first filed a Notice of Appeal containing two (2) grounds of appeal on 18th September, 2017.

However, on 31st December, 2018, the Appellants filed an Amended Notice of Appeal containing four (4) grounds of appeal.
The relevant briefs of argument are:
1. Appellant’s Brief of Argument filed on 31st December, 2018 but deemed filed on 12 March, 2020. It is settled by Mfon D. Uyoh Esq.
2. Respondent’s Brief of Argument is dated 15th October, 2019 and filed on 13th November, 2019 but it is deemed filed on 12th March, 2020.

Learned Counsel for the Appellant nominated four (4) issues for determination of the Appeal.
They are:
1. Whether the trial Court properly evaluated evidence of the witnesses before arriving at its decision (Ground 1).
2. Whether any of the parties

pleaded the existence of the record of proceedings of what transpired at Ikot Udoro Oku village council in the course of the settlement of the boundary dispute between the claimant and the 1st Defendant/Appellant by the 2nd Defendant/Appellant (Ground 3).
3. Whether the trial Court was right to have on its own raised and rely on the Survey Regulation and Survey Laws of Akwa Ibom State and which same influenced the judgment in favour of the claimant/Respondent (Ground 4).
4. Whether the 1st Defendant/Appellant was not entitled to the reliefs sought in view of the fact that the Claimant/Respondent did not file any defence (Ground 2).

Learned Counsel for the Respondent similarly formulated four (4) issues for determination of the Appeal. They are:
1. Whether the trial Court properly evaluated evidence of witnesses before arriving at its decision.
2. Whether the trial Court rely solely on DW3 cross examination to come to its decision.
3. Whether the Court must give parties the opportunity to address it on an issue of law or statute before the Court can make reference to such law or statute.
4. Whether or not the Appellants are

entitle (sic) to reliefs as contained in their joint counter claim.

On issue No. 1, Learned counsel for the Appellant referred to excerpts from the judgment the trial Court at pages 157 – 160 of the Record of Appeal. He submitted that in spite of the acknowledgement by the learned trial judge that
“In this type of situation, evidence of one who had previous knowledge of the boundary — or where the boundary line is located is vital.”

That the trial Court in the resolution of the dispute between the parties nevertheless ignored evidence of DW3 who knew the land before the dispute arose. Also, that the failure of the Respondent/Claimant to heed the advice of DW2 to re-establish her boundary beacons which she did not confirms what the 1st Appellant pleaded in paragraph 10 of the Statement of Defence that the land was not surveyed by the Respondent’s late father but was demarcated by ancient boundary trees (Okono and Itumo). He submitted that the Respondent failed to join issues with the Appellants on these facts. That a careful look at Exhibit “C” will show that the beacon No. 82898 is inside the house of the

1st Appellant and not even on the boundary as said by the Respondent. He referred to the cases of Oyewo vs. Komolafe (2011) ALL FWLR (pt. 578) 904 at 916 and noted that the Respondent did not join issues or traverse facts raised by the Appellants in the Statement of Defence filed on 23rd October, 2014.
He submitted if the trial Court had believed evidence of DW3, the judgment would have been different.

On Exhibit C, tendered by the Respondent, Appellant’s Counsel submitted that even though it was not objected by the defence, it ought not to have been ascribed probative value because it did not meet the condition precedent to it being ascribed probative value.

He submitted that Exhibit ‘C’ was not accompanied with a certificate of deposit and therefore inadmissible as a matter of law. Appellant’s Counsel referred to the provision of Section 1 of the Survey Law of Akwa Ibom State and the case of Usung vs. Nyong (2009) ALL FWLR (pt. 523). He reiterated the principle that where, however, evidence is by law inadmissible in any event, it ought not to be acted upon by a Court of law. He referred to the case

Mainstreet Bank REG Ltd. vs. Etim (2017) ALL FWLR (pt. 907) 1620 at 1645 – 1640.

He concluded on issue No. 1 that in the instant case, the trial Court relied heavily on the plan Exhibit “C” in arriving at its decision, thus occasioning miscarriage of justice.

On issue No. 1, Learned Counsel for the Respondent submitted that the trial Court recognized the “existence of an original common boundary that engendered peace between both parents of the parties in their life time and even between the parties on record till 2014”.

He submitted that the Appellants on their part did not lead any credible evidence on this point rather Appellants were more concerned with the evidence describing the “State” of the common boundary.

The only credible evidence placed before the trial Court as to “where” the original common boundary was is the uncontroverted evidence of the Respondent to wit. Survey Plan No. ESA/125/6 dated 28th January, 1978 admitted without any objection as Exhibit C.

He reviewed the evidence of DW3 and urged us to note that the totality of DW3’s evidence before the trial Court made it obvious

that DW3 upon the instruction of the 2nd Appellant did demarcate the common boundary between the 1st Appellant and the Respondent. That it is also clear the new boundary was erected and that the new boundary was lined with bottles on both ends.

He submitted that DW3 gave the impression that the said common boundary as at the time of the said inspection and demarcation had boundary trees there on. However, that in contrast paragraph 10 of DW2’s Statement on oath at page 35 described the state of the common boundary that there was no beacon stone and economic trees as at the time he inspected the land accompanied by DW3.

He submitted that by comparison, there is a sharp twist between the evidence of DW2 and that of DW3 as regard the state of the common boundary.

On the evidence of DW1, Learned Counsel for the Respondent noted that at paragraphs 5 of the 1st Appellant’s Statement on oath on pages 22 and 30 of the Records, he (DW1) stated that the Respondent destroyed all the ancient trees (Okono and Itumo) that demarcated the land in dispute and planted plantain and also constructed borehole.

Respondent’s Counsel asked

– when did the Respondent destroy all the ancient trees? That if it was prior to 2011 that the Respondent cultivated the said land or in 2011 when she constructed the said borehole, what then did DW3 see during the village inspection? He added that the trial Court also observed that DW1 claimed to have lived all his life on his land yet the Respondent did not only destroy all the ancient boundary trees but also constructed a borehole and DW1 choose to do nothing until 2014.

Respondent’s Counsel repeated his submission that one vital piece of evidence that is obviously lacking in the presentation of the evidence by the Appellants is evidence of where the common boundary was located before the purported demarcation by them. How then did the trial Court come to its decision?

He submitted that the trial Court had to fall back on documentary evidence tendered by the parties including Exhibit C to resolve the boundary line dispute between the parties.

He submitted that Exhibit C was not only rightly admitted under the Evidence Act but indeed as rightly noted by the learned trial judge it was an unchallenged piece of evidence on the subject

matter.
He referred to the cases of Moses Benjamin vs. Kalio (2018) 15 NWLR (pt. 1641) 38, Nzeribe vs. Dave Engineering Ltd. (1994) 8 NWLR (pt. 361) 124 and urged us to resolve the issue in favour of the Respondent.

In a simple and direct answer to Appellant’s issue No. 1, the learned trial judge properly and indeed painstakingly evaluated the evidence of the parties in this case before arriving at his decision.

In dealing with the case of the parties, the learned trial judge quickly recognized that what was needed is credible evidence as to the boundary line between the parties. Unfortunately, as copiously brought out in the judgment and the submission of the Learned Counsel for the Respondent on issue No. 1, the evidence of the Appellant’s witnesses on the known and/or established boundary between the lands of the parties are conflicting, inconsistent and fundamentally contradictory.

DW1 said the PW1 destroyed the existing ancient trees which demarcated their possessions and planted plantains and also erected borehole. DW3 who the trial judge rightly noted is not an independent witness and who also revealed himself as the

carpenter to DW1 for which reason he should not have been commissioned or appointed by DW2 as a member of the settlement or arbitral committee for the dispute between DW1 and PW1 said at page 152 of the Record that “We did not create any new boundary. We followed the old established boundary line that was very clear with boundary trees”. DW2 on the other hand described the state of the alleged common boundary and said there was no beacon stone and economic tree as at the time he inspected the land accompanied by DW3.

The learned trial judge discovered that he could not rely on the unreliable testimonies of Appellants witnesses to resolve the issue of the boundary line between the parties. He rightly fell back on documentary evidence including Exhibits G, E and ‘C’ to resolve the issue. In doing this, the learned trial judge compared and analyzed the Exhibits and found the measurements and dimensions of Respondents Exhibits E and C to be consistent and reliable evidence on the issue of the boundary line between the Appellants and the Respondents. The Appellants in this case cannot be heard to say that probative value ought not to be given

to Exhibit C in spite of the fact that the said Exhibit C was admitted without objection.

I do agree with the learned trial judge and the counsel to the Respondent in this appeal that the context of Exhibit C was never contradicted or challenged throughout the proceedings. It is the law the Court will act upon evidence which is uncontradicted and unchallenged. See Nwakonobi vs. Udeorah (2013) 7 NWLR (pt. 1354) 499 S.C., Ighreriniovo vs. S. C. C. (Nig.) Ltd. (2013) 10 NWLR (pt. 1361) 130 S.C., Nigerian Army vs. Yakubu (2013) 8 NWLR (pt. 1355) 1 S.C., Jim-JAJA vs. C. O. P. Rivers State (2013) 6 NWLR (pt. 1350) 225 S.C.

In any event, apart from the fact that the said Exhibit ‘C’ is uncontradicted, uncontroverted and unchallenged, it permits of no oral evidence to vary or impeach its contents. See I.N.E.C. vs. Atuma (2013) 11 NWLR (pt. 1366) 494 S.C., Bongo vs. Gov. Adamawa State (2013) 2 NWLR (pt. 1339) 403, Odunlami vs. Nigerian Navy (2013) 12 NWLR (pt.1367) 20 S.C.

Learned Counsel for the Appellant could not be right when he suggested that Exhibit ‘C’ ought not to be given probative value because it was not properly

admitted as there was not certificate of deposit accompanying it when it was tendered under the Survey Law of Akwa Ibom State. My first observation here is that the learned counsel for the Appellant seems to be mixing up the two separate concepts of admissibility of evidence with weight of evidence. If he was concerned with the attachment of probative value to the document Exhibit ‘C’, then his proper tenor of argument would not have been as to the admissibility of the said document. Admissibility is different from weight of evidence or probative value of evidence. See Sa’eed vs. Yakowa (2013) 7 NWLR (pt. 1352) 124 S.C.

There is of course no gainsaying that Exhibit ‘C’ was properly admitted in evidence in the instant case. This is not merely because it was admitted without objection or because it is a document made in 1978 even before the coming into effect of the said Survey Law of Akwa Ibom State Cap. 128 but more importantly because “there is no provision of the Act which allows any evidence to be rejected as inadmissible save as provided in the Act itself” R. vs. Agwuna (1949) 12 WACA 456 at 458.

It follows that the inadmissibility or otherwise of any document properly pleaded is within the purview of the Evidence Act same being a legislation of the National Assembly as well as an item in the exclusive legislative list and by far superior to any state legislation. Therefore, any document properly pleaded and admissible under the Evidence Act cannot be rendered unpleaded and inadmissible by a State legislation.
See Moses Benjamin vs. Kalio (2018) 15 NWLR (pt. 1641) 38. In the instant case, the admissibility of Exhibit C is governed by the Evidence Act 2011 and not the Survey Law of Akwa Ibom State or Survey Law of Cross River State. On the issue of admissibility of evidence, the Evidence Act covers the field and it is far superior legislation on the subject matter of evidence to be contradicted by Survey Laws of respective states. State survey Laws cannot render unpleaded and inadmissible the properly pleaded and admissible Exhibit C. I may add, if it were otherwise it would get to a stage where State Laws would render ineffective and otiose the provisions of the Evidence Act, a Law of the National Assembly made under

Item 23 of the Exclusive Legislative List of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Again, apart from the relatively wide and common rules of exclusion of evidence such as the Hearsay rule, exclusion of involuntary confessions and some forms of privilege either at common law or under the Evidence act, the evidence law largely consists of rules of relevance and admissibility to safeguard the need for parties to properly ventilate their grievances and cases. It is therefore not too desirable to permit the influx of legislation (state legislation) to negatively influence the higher or greater purposes of the rules of evidence by legislating freely on the inadmissibility of evidence. Issue No. 1 is resolved against the Appellant.

On issue No. 2 Learned Counsel for the Appellant submitted that failure by the parties to plead that the settlement made by DW2 at the instance of the Respondent was reduced in writing, the trial Court ought not to have relied on that piece of evidence in arriving at its decision.

Appellant’s Counsel referred first to the cross-examination of DW3 at page 151 of the Records which in full reads thus:

“Q. Would I be correct to say that the village council records all the proceedings of her meetings?
Ans. Yes it would be correct. They cannot records (sic) all minutes of its proceeding.
Q. The decision to demarcate the boundary between the parties land was it written down?
Ans. Yes it was written down in the minutes.
Q. In the course of the deliberation to reason (sic) reach that decision did you call for any evidence.
Ans. We visited the site on the instruction of the village head. Both parties were present at the site. We consider the matter at the site and demarcated the boundary. We only went back to report to the village head what has been done.”

Appellants Counsel then juxtaposed the above cross-examination of DW3 with observation of the learned trial judge – according to him on page 162 of the Records. In full, the observation of the learned trial judge is contained at pages 162 – 163 of the Record thus:
“Under cross- examination, DW3 admitted that the proceedings were written down in the minutes book of the village. The minutes book however was not produced and not tendered in evidence DW3

said the issue was settled and both parties were happy. The evidence of DW3 would have been quite useful as to what he actually observed on the boundary. But throughout his statement on oath he did not say precisely what he noticed on the land. Rather he said –
“We went and inspected the boundary in dispute and we were able to settle the boundary dispute to the satisfaction of both the claimant and the 1st Defendant.”
It was however under cross-examination that the DW3 said
“We did not create any new boundary we followed the old established boundary line that was very clear with boundary trees…“

Appellants counsel relied on a host of cases including the case of West Construction Co. Ltd. vs. Batalha (2006) ALL FWLR (pt. 315) 1 at 18 for the proposition that-
“Any evidence led in respect of an un-pleaded fact, whether directly from a witness or extracted under cross-examination of the Respondent would be inadmissible”.

He submitted that whatever the trial Court said after noting the non-production of the minute book of the village affected his assessment of the evidence of DW2 and DW3.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned Counsel for the Respondent reacted to Appellants issue No. 2 by saying that the trial Court did not solely rely on the cross –examination of DW3 to come to its decision.

He submitted that the Appellant’s argument at page 18 of his brief of Argument which suggests that the trial Court’s decision was based solely on the piece of evidence of examination of DW2 and DW3 is speculative and does not represent the record.

He submitted that Appellant’s argument has not shown what the Court said thereafter which shows that it is as a result of the non-production of the minutes book that caused “the Court does not believe the DW2 and DW3. The Appellants have a duty to show those premises by which the Court came to its conclusion flowing directly from the non-production of the said minute book. He referred to the provision of Section 223 of Evidence Act 2011 and the cases of Daggash vs. Bulama (2004) 14 NWLR (pt. 892) 144 Gaji vs. Paye (2003) 8 NWLR (pt. 823) 583 and submitted that the purpose of cross-examination is either to obtain from one’s adversary facts farourable to the party” case or to weaken or

demolish an opponent’s case. In respect of the former case, any material fact elicited under cross examination must be pleaded failing which evidence in respect thereof is not admissible. But that in the latter case, it is not necessary to plead such facts having regards to a wide range of matters in which questions could be asked in cross examination.

He further referred to the cases of Ezewuzim vs. Okoro (1993) 5 NWLR (pt, 294) 478, Onafowokan vs. Idowu (1969) 1 ALL NLR 125. He submitted that in the instant case, the Respondent accused 2nd Appellant and his team of arbitrarily demarcating the common boundary between her and 1st Appellant. The Appellants in their defence denied the allegation of any wrong doing in the course and/or process of resolving the common boundary dispute between the Respondent and the 1st Appellant. The Appellants in their said defence went further to aver that the common boundary dispute between the Respondent and the 1st Appellant was amicably resolved to the satisfaction of both parties. It is only proper and natural for the Respondent to seize the opportunity under cross examination to put to test the credibility and

veracity of the testimonies of DW2 and DW3 in that respect. The trial Court therefore merely observed that though DW3 admitted under cross examination that the proceeding for the settlement of the common boundary dispute between the Respondent and the 1st Appellant was in writing and in satisfaction of both parties and same was averred on oath. The DW2 and DW3 who purportedly acted in an official capacity failed to put before the Court the said proceedings. The effect of production or non production of the council proceedings as elucidated under cross examination of DW3 as in this case was to aid the trial Court to come to a conclusion as it did on a balance of probability and not for the admission of the fact that there is in existence of such record.

He concluded that by the foregoing it cannot be said that the Court relied solely on evidence of DW3 elicited under cross-examination to enter judgment in favour of the Respondent. In any event, that the law is trite that a Plaintiff succeeds on the strength of his case and not on the weakness of the opponent’s case.

The impression which the learned counsel for the Appellants tried to give in

issue No. 2 that the learned trial judge came to a conclusion in the case based on un-pleaded evidence elicited from DW3 during cross-examination is totally unfounded and perhaps misleading. The fact that the learned trial judge did not on the whole, find the Appellants evidence credible and rightly resorted to the use of documentary evidence especially Exhibits G, E and C to resolve the issue before him has already been highlighted in my resolution of issue No. 1 in this appeal.

Unfortunately, it is equally not the case as argued by the Appellants that the parties did not plead that the settlement made by DW2 at the instance of the Claimant/Respondent was reduced in writing. It is elementary that pleadings are not synonymous with evidence and the averments in pleadings need to be proved or disproved by evidence either at examination in chief or cross examination. See Eyigebe vs. Iyaji (2013) 11 NWLR (pt. 1365) 407 SC, Olusanya vs. Osinleye (2013) 12 NWLR (pt. 1367) 148 SC, Arab Chem Ltd. vs. Owoduenyi (2013) 10 NWLR (pt. 1361) 89.

In the instant case and as rightly pointed out in the submission of the learned counsel for the Respondent, it is the

case of the Appellants themselves that was built on the idea that DW2’s settlement team which includes DW3 has settled the boundary issue between PW1 and DW1 to the satisfaction of the parties.

Paragraph 4 (a) – (d) of the Appellant’s Statement of defence reads thus:
The Defendants admit paragraph 4 of the statement of claim only to the extent that the 2nd Defendant is the village Head of Ikot Udoro Oku, Uyo Local Government Area of Akwa Ibom State. In further answer to the said paragraph the Defendants aver as follows:
a. Sometimes in March, 2014, the Claimant reported to the 2nd Defendant that 1st Defendant uprooted her beacon stones on the boundary of the land in dispute and the 2nd defendant advised her to maintain peace since they are neighbours but if confirmed that her report is true, she should look for a licensed surveyor to replant the beacon stones. Thereafter, the claimants requested the village (Ikot Udoro Oku) to visit the land in dispute and settle the boundary dispute between her land and the 1st Defendant’s family land and promised to abide by the decision of the village but later changed her mind and

said that she doesn’t need the intervention of the village again.
b. The claimant went to the village the second time and sought the intervention of the village council but later withdrew her request. She finally made up her mind and went back the third time to the village and pleaded strongly with the village to intervene and settle the boundary dispute and also promised to abide by the decision of the village.
The 2nd Defendant then selected three (3) councilors from Ikot Udoro Oku village council namely, MR. BASSEY JOHN IKPA, MR. ESSIEN UDO INYANG AND MR. UNA EFFIONG AKPAN to go and settle the boundary dispute between the Claimant and the 1st Defendant’s family.
c. The three (3) councilors went and successfully settled the boundary dispute to the satisfaction of both parties and all uproar and quarrel ceased. The councilors found out that the 1st Defendant never trespassed into the land of the Claimant rather the Claimant is the one that trespassed into the land of the 1st Defendant’s family and planted plantain trees and also installed borehole tank on the 1st Defendant’s family land. The councilors based on their

findings advised the Claimant accordingly to remove her G. P tank from the 1st Defendant’s family land within one month from the date of settlement. The councilors then used bottles to demarcate the boundary of the land in dispute and the Claimant and the 1st Defendant were satisfied and happy.
In appreciation for the peaceful settlement of the dispute, Claimant and the 1st Defendant gave a bottle of wine each and transport fare to the councilors and they left and reported exactly what happened and how they were able to settle the boundary dispute to the satisfaction of both parties and also showed their appreciation to the 2nd Defendant who told them to keep all for themselves.
d. One week after the settlement, the Claimant instead of abiding by the decision of the village as promised, served the 2nd Defendant a letter through her Lawyer asking him to tell the 1st Defendant to replace the beacon stones he removed from her land otherwise he will sue him. Thereafter, the Claimant took the 1st Defendant to police and the 1st Defendant also lodged his own report against the Claimant with the police before the matter was finally filed in this Court.

In the circumstance, the observation of the learned trial judge that DW3 admitted that the minutes of the settlement was recorded in the village book but was not tendered is relevant and pertinent in the context of the Appellants pleadings to show the insufficiency of proof of the legal validity of the settlement agreement itself and indeed the case of the Appellants.
Issue No. 2 is resolved against the Appellants.

On issue No.3, Learned Counsel for the Appellants submitted that the trial Court at pages 169 – 171 of the record made reference to Section 2 of the Survey Regulation under the Survey Law Cap. 128 Laws of Akwa Ibom State. Sections 8, 9 (1) and 10 (1) of Survey Laws of Akwa Ibom State, without giving the Appellants/Defendants the opportunity to address the Court on the issue raised.

He submitted that what is more, the trial Court in analyzing the said sections of the law, made it appear as if the Appellants/Defendants were standing trial in a criminal charge before the Court. That it ended at page 171 thus:
“Against the background of the above deliberation, I have no difficulty in holding that on a balance

of probabilities; the case of the Plaintiff is far stronger and probable than that of the Defendant.”

He submitted referring to the cases of G.T.B vs. Ogwezzy – Ndika (2017) ALL FWLR (pt. 914) 1050 at 1076, Ogbeide vs. Amadasun (2017) ALL FWLR (pt. 904) 1139, Ghraizi vs. Graizi (2017) ALL FWLR (pt. 893) 1335 that it is improper for a Court to raise in chambers questions not raised in open Court. He urged us to resolve the issue in favour of the Appellants.

On issue No.3, Learned Counsel for the Respondent submitted that the trial Court did not require address of counsel before it can make reference to or comment on any law or statute. A Court of law has the proprietary to make reference to any law or statute in the course of writing its ruling or judgment and such Court does not require or have a need to first call on parties to address it on the point of law or statute under reference.

He submitted that the Appellants states that the trial Court made reference to the said law or statute but failed to state the issues raised thereto by the trial Court.
He added that the failure of the Appellants to state the issue raised

leaves their argument vague and speculative.
He submitted further that the Appellants also failed to show how the trial Court’s reference to the said law and/or statute occasioned a miscarriage of justice.

In deciding Appellants issue 3, I have carefully gone through the length and breadth of the judgment of the trial Court and more especially pages 169 -171 of the record where the trial Court made references to Section 2 of the Survey Regulation under the Survey Law Cap. 128 Laws of Akwa Ibom State. Sections 8, 9 (1) and 10 (1) of the survey Laws of Akwa Ibom State in support of his conclusions in the case before him. The learned trial judge did not raise “any issue” that required address by counsel as alleged by the Appellant’s counsel. It is only when facts are in dispute that they are said to be in issue. See Olufosoye vs. Olorunfemi (1989) 1 NWLR (pt. 95) pg 26, Ehimare vs. Emhonyon (1985) 1 NWLR (pt. 2) pg. 177 the trial judge cannot be said to have raised issue (s) that require parties address on when he applies laws or statutes even though not cited by the parties to his conclusions or even when he veers off to make

obiter statements. The test to my mind is whether the Judex has raised a question of fact or law which crosses or tends to cross the borderline of the dispute between the parties. It is quite worrisome that counsel now makes frivolous appeal issues of the application of law by judges to the facts and circumstances of the cases before them. Issue No. 3 is resolved against the Appellants.

In arguing issue 4, learned counsel for the Appellants adopted his submission on issue No. 1 “on the failure of the Claimant/Respondent to join issues with the Appellants/Defendants on the statement of Defence”. He opined that the evidence of DW1 and DW3 are cogent enough to sustain the counter claim of the 1st Appellant/Defendant. He agreed with the learned trial judge that the 2nd Appellant who is the village head had no interest in the land. But that looking at the reliefs in the counter claim at page 25 – 26 of the record, one is not in doubt as to the fact that it was the 1st Appellant/Defendant that asked for those reliefs.

He submitted that in the case at hand, the Respondent/Claimant did not controvert the claim of the 1st Appellant/Defendant

either by filing defence to counter claim or reply to the statement of defence which was adopted as the facts in support of the counter claim.
He urged us to resolve the issue in favour of the Appellants.

Learned Counsel for the Respondent submitted on issue No. 4 that the Appellants are not entitled to the reliefs sought as contained in their joint counter claim on pages 25 – 26 of the record.

He submitted that the requirement of the law regarding the onus placed on a party claiming a declaratory relief, whether of title to land or not is quite stringent, for the Plaintiff must satisfy the Court by cogent and credible evidence to prove he is entitled to the declaratory reliefs sought.

On this, he referred to the case of Fabunmi vs. Agbe (1985) 1 NWLR (pt. 2) 299 at 318. He submitted that assuming but not agreeing that the failure of the Respondent to file a defence to Appellants counter claim amounts to admission, it is the law that a Court of law does not grant a declaration on admission of parties because the Court must be satisfied that the Plaintiff on the strength of his own evidence and not on the weakness of the evidence of

the Defendant is entitled to the declaratory reliefs claimed.

He referred to the case of Ayanru vs. Mandilas Ltd. (2007) 10 NWLR (pt. 1043) 46. He added that the Court does not grant declaration of right either in default of defence or admission without hearing evidence and being satisfied by such evidence.
He referred to the cases of Bello vs. Eweka (1981) 1 SC 101, Ogunjumo vs. Ademolu (1995) 4 NWLR (pt. 389) 254 at 265. He urged us to resolve the issue in favour of the Respondent.

The Learned trial judge at pages 173 – 174 of the record gave two perhaps three important reasons for not finding in favour of the Appellant’s counter- claim. The first, based on the evidence presented by the parties is that
“having found — above that the case of the Defendant counter claimant as ventilated through the paragraphs 1 – 19 of the statement of defence was unsupportable the counter – claim invariably becomes unsupportable.”

The second is that the assumption by the Appellants that the failure of the Respondents to file reply and or Reply to counter claim could guarantee the success of the counter –

claim is unfounded. This according to the learned trial judge is because the counter – claim must succeed on its own merit. In other words, a counter–claim cannot succeed on the weakness of the case of the Plaintiff/Defendant. These propositions by the learned trial judge represent the immutable position of the law. In other words, that in a claim for declaration of title to land, a Plaintiff has the burden to establish his claim upon the strength of his own case and not upon admission or any weakness in the case of the Defendant. The Plaintiff must therefore satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought.
See Gbadamosi vs. Dairo (2007) 3 NWLR (pt. 1021) 282 SC, Dada vs. Dosunmu (2006) 18 NWLR (pt. 1010) 134 SC, Onisaodu vs. Elewuju (2006) 13 NWLR (pt. 998) 517 SC, Ajiboye vs. Ishola (2006) 13 NWLR (pt. 998) 628 SC, Otanma vs. Youdubagha (2006) 2 NWLR (pt. 964) 337 SC, Dike vs. Okoloedo (1999) 10 NWLR (pt. 623) 359 SC Madubuonwu vs. Nnalue (1999) 11 NWLR (pt. 628) 673 SC, Eze vs. Atasie (2000) 6 SC (part 1) 214, Elema vs. Akenzua (2000) 6 SC (part 111) 26 at 29 – 30,

Itauma vs. Akpe-Ime (2000) 7 SC (part 11) 24 at 30 -31

Finally, the learned trial judge held and rightly too in respect of the Appellants counter claim that
“…the 2nd Defendant who was shown to be the village head and has no interest in the land the subject matter of the counter claim cannot pretend to join the 2nd Defendant to counter claim for a declaration of title to land of another person. Where the Plaintiff has no interest to sue for the benefit of a third party. He cannot also ask for special damages or general damages in a matter he holds no interest…”
Issue No. 4 is resolved against the Appellants.

The Appellants nominated four (4) issues for the determination of this appeal. All the four issues were resolved against the Appellants. The appeal lacks merit and it is hereby dismissed.
N50,000.00 costs is awarded in favour of the Respondent.

PHILOMENA MBUA EKPE, J.C.A.: My learned brother Mojeed A. Owoade, JCA afforded me the opportunity of reading in advance, a draft copy of the judgment just delivered. I totally agree with the resolution made therein.
The appeal lacks merit and is hereby dismissed.

HAMMA AKAWU BARKA, J.C.A.: The judgment just delivered by my Learned brother MOJEED ADEKUNLE OWOADE, JCA was made available to me before now in draft.

Having also studied the grounds of appeal, the record and submissions of learned counsel on the issues arising therefrom, I hold the view that the appeal is lacking in merit and thereby dismiss the same. Costs of N50,000.00 against the appellant.

Appearances:

Mfon D. Uyoh Esq. For Appellant(s)

…For Respondent(s)