ANYANWU v. OCHIN & ORS (2020)

ANYANWU v. OCHIN & ORS

(2020)LCN/14803(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Tuesday, November 24, 2020

CA/E/100/2017

RATIO

JURISDICTION: DUTY OF COURT TO CONSIDER THE ISSUES OF JURISDICTION FIRST

When an issue of a jurisdictional nature is raised, a Court, whether trial or appellate, is duty bound to first determine same. The Court would only consider the issues presented before it after being satisfied that it can assume jurisdiction. See A.G. FEDERATION V. A.G. LAGOS STATE (2017) LPELR – 42769 (SC). PER UMAR, J.C.A.

LOCUS STANDI: MAIN TEST OF LOCUS STANDI

On the issue of locus standi, this Court held in EDUN V. GOVERNOR OF DELTA STATE OF NIGERIA & ORS (2019) LPELR – 4246 (CA) held thus:
“The main test of locus standi is whether the Plaintiff, from his pleadings, has disclosed sufficient interest in the subject before his suit. Once he discloses in his pleadings, his sufficient interest in the subject matter, he is by law entitled to sue.” PER UMAR, J.C.A.

ACTION: HOW AN ACTION IS DETERMINED WHETHER IT IS STATUTE BARRED OR NOT

It has been held in an imprimatur of judicial authorities of this Court and the Supreme Court that in order to determine whether an action is statute barred, the Court should inquire from the pleadings before it when the cause of action accrued and thereafter, compare same with the date the action was instituted. If the Court so discovers that the time stipulated in the limitation law has already lapsed before the institution of the action, then the action shall be declared statute barred and the right of the Claimant to institute the action to vindicate his right will be pronounced extinguished. See NNPC & ANOR V. EFEBO (2019) LPELR – 47904 (CA). PER UMAR, J.C.A.

ACTION: HOW A CAUSE OF ACTION IS DETERMINED

It is trite law that in determining when the cause of action arose, the Court must only consider the Statement of Claim. See YARE V. NATIONAL SALARIES INCOME AND WAGES COMMISSION (2006) 2 NWLR (PT. 965) 546. In determining when a cause of action accrues, the Supreme Court held in SIFAX (NIG) LTD V. MIGFO (NIG) LTD (2018) 9 NWLR (PT. 1623) 138 at 191 PARAS A-B:
“The accrual of the cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin to maintain his action. Time begins to run when the cause of action crystalizes or becomes complete.” PER UMAR, J.C.A.

EVIDENCE: BURDEN AND STANDARD OF PROOF IN CIVIL MATTERS

The law is settled by virtue of Sections 131-134 of the Evidence Act that the onus is on the plaintiff in a civil case to prove by cogent and credible evidence that he is entitled to the reliefs he seeks from Court. The standard of proof therefore is on the balance of probability or preponderance of evidence. See A.G. BAYELSA STATE V A.G. RIVERS STATE (2006) 18 NWLR (PT. 1012) 596, (2006) LPELR-615 (SC); WOLUCHEM V GUDI (1981) LPELR- 3501. PER UMAR, J.C.A.

LAND LAW: WAYS OF PROVING TITLE TO LAND

It has been long settled since the case of IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 that there are five ways of establishing title to land. Thus: (1) Traditional evidence (2) By production of document or documents of title (3) Acts of ownership such as selling, leasing, renting or farming extending over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner (4) Acts of long possession of the land (5) Proof of possession of connected or adjacent land in circumstances, rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. The proof of any one of the five ways is sufficient as each of them stands or fails on its merit. PER UMAR, J.C.A.

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

CHIMELU WILLIAM ANYANWU (Suing By His Next Friend Jude Egbo Nwobodo) APPELANT(S)

And

DR KEVIN OCHIN (Suing By Attorney Ndubuisi Kanu) 2. ELDER CHUKWUDI DIKE 3. MR. SUNDAY ODDY (Suing For Themselves And As Representing Tenants Of The 1st Plaintiff On The Disputed Land) 4. ENGR. JUSTIN OCHIN RESPONDENT(S)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State in the Enugu Judicial Division delivered by Hon. Justice I.A. Umezulike on 3rd June, 2016. The 1st Respondent as 1st Plaintiff via an amended statement of claim dated 28th May, 2010 sought the following reliefs against the Appellant and 4th Respondent, who were Defendants:
“a) A declaration that the plaintiff is the title holder and in possession of all that piece or parcel of land shown in the planfiled herewith, which said parcel of land is known as and called No. 165, Agbani Road, Enugu.
b) A declaration that the entry of the 1st defendant on the disputed parcel of land on 17/05/04 by herself, her agents, hired thugs and hoodlums and the police was wrongful and forceful and amounted to trespass.
c) An order of perpetual injunction restraining the 1st defendant by herself, her agents and privies from further trespass on the disputed parcel of land.
d) A declaration that the acts of the 1st defendant on 17/05/04 in using hired thugs, hoodlums and police in flushing out

the tenants of the plaintiff from the disputed parcel of land amounted to illegal and forceful ejection.
e) An order of perpetual injunction restraining the defendants by themselves, their agents and privies from further entry into the disputed parcel of land for any activities whatsoever.
f) N10, 000,000.00 (Ten Million Naira) as damages for trespass and illegal and forceful ejection of tenants of the plaintiff from the disputed land.
g) N2, 362,500.00 (Two million, three hundred and sixty-two thousand, five hundred naira) as special damages for the 2nd and 3rd plaintiffs.
h) 5% interest on any judgment sum awarded herein from the date of judgment until paid.” (See pages 29-30 of the record of appeal).

The 1st Respondent called five witnesses at trial, while the Appellant called three witnesses. The 4th Respondent who was the 2nd Defendant only filed a Statement of defence but failed to defend the suit. At the conclusion of trial, the learned trial judge delivered a considered judgment wherein he held as follows:
“(1) The plaintiff is the title holder and in possession of all that piece or parcel of land in the

planfiled herewith, which said parcel of land is known as and called No. 165, Agbani Road, Enugu.
(2) The entry of the 1st defendant in the land in dispute on 17/5/2004 by herself, agents, and hired thugs and the police was wrongful, forceful and amounts to trespass.
(3) The 1st defendant be and is hereby restrained from further trespass on the land in dispute namely No. 165, Agbani Road, Enugu.
(4) The acts of the 1st defendant on 17/5/2004 in using thugs and policemen to flush out the tenants of the plaintiff amounted to illegal and forceful ejection.
(5) The defendants be and are hereby restrained from further entry into the land in dispute for any activities whatsoever.
(6) The defendant shall pay the plaintiff the sum of N100, 000 for trespass.
(7) The claim for special damages of N2 million is denied and dismissed as not established.
(8) There shall be no order as to cost of the litigation.” (See pages 193-2122 of the record of appeal).

Dissatisfied with the judgment of the trial Court the Appellant filed an amended notice of appeal dated 27th February, 2017 and deemed properly filed on 3rd July, 2018. The four

grounds of appeal without their particulars as contained in the amended notice of appeal are hereunder reproduced as follows:
“GROUND ONE
The learned trial Court erred when in the judgment now appealed against; it held that the plaintiff is the title holder and in possession of all that piece or parcel of land called No. 165, Agbani Road, Enugu.
GROUND TWO
The learned trial Court erred when in the judgment now appealed against; it held that all the documentary evidence received at trial as exhibits are in favour of the respondent, despite the overt irregularities, illegalities and fraud evident in those documents.
GROUND THREE
The learned trial Court erred when in the judgment now appealed against; it held that the entry of the Appellant into the disputed land was wrongful and forceful and amounts to trespass.
GROUND FOUR
The learned trial Court erred when in the judgment now appealed against; it did not avert its mind to the fact that the 1st respondent did not have the locus to institute this suit in the first instance.

In line with the rules and practice of this Court, Counsel filed and exchanged

their respective briefs. CHIKE ANTHONY UKOH, ESQ settled the Appellant’s brief of argument. The brief is dated 27th January, 2018 and filed on 31st January, 2018. The brief of argument of the 1st, 2nd and 3rd Respondents is dated 17th April 2018 and filed on 26th April, 2018. The brief was settled by R.C. MADU, ESQ. The Appellant also filed a reply brief dated 27th June, 2018 and filed on 2nd July, 2018.

The 4th respondent filed no process in the determination of the appeal, neither was he represented by counsel. The appeal was heard on 6th October, 2020 and all briefs were deemed properly filed on that day. At page 3 of his brief of argument, Appellant’s Counsel distilled three issues for determination as follows:
“1. Does the 1st respondent have the requisite locus standi to institute this action which is statute barred? (distilled from ground four of the notice and grounds of appeal)
2. Does the appellant have a valid title to the land and did his entry thereon constitute a trespass? (distilled from ground three of the notice and grounds of appeal)
3. Did the 1st respondent prove his title to the land in dispute?

(distilled from grounds one and two of the notice and grounds of appeal)

At paragraph 0.7 of his brief, Counsel to 1st, 2nd and 3rd Respondents adopted the issues distilled by Appellant’s Counsel.

I have gone through the briefs of argument of counsel as well as the record of appeal compiled and transmitted to this Court. I believe that the issues for determination as distilled by Appellant’s Counsel and adopted by Counsel for 1st, 2nd and 3rd Respondents will suffice for the determination of this appeal and I hereby adopt same. I shall summarize arguments and submissions of Counsel in respect of each issue and then proceed to resolve each issue.

ARGUMENTS AND SUBMISSIONS ON ISSUE 1
Appellant’s Counsel submitted that the 1st Respondent was not granted the administratorship of the estate of the late Joseph Wilfred Ochin alone, rather that same was granted to him jointly with the 4th Respondent. He further submitted that the 1st Respondent lacked the requisite locus standi to institute the action at the trial Court. He contended that the 1st Respondent can only sue or be sued in respect of the estate together with his

co-administrator. He referred to Order 13 Rule 10 of the High Court (Civil Procedure) rules of Enugu State 2006. Counsel also submitted that the suit culminating into the instant appeal was statute barred, having been instituted 22 years after the cause of action accrued. He further submitted that the cause of action of the 1st Respondent had exceeded the 20 years stipulated by law. He referred to Section 22(2) Action Law, Cap 4Laws of Enugu 2004.

On the other hand, Counsel for 1st, 2nd and 3rd Respondents submitted the estate of the late J.W.U.Ochin, the 1st Respondent’s predecessor-in-title has been shared and that the land in dispute was granted to the 1st Respondent. Counsel further submitted that in determining when the cause of action arose, the determining factor or factors are the originating process and the statement of claim. He referred to AGI V. ENO (2010) 5 NWLR (PT. 1188) 626.

In his reply brief, Appellant’s Counsel submitted that there was no evidence of partitioning of the estate of the late J.W. Ochin as claimed by the 1st Respondent. He referred the Court to paragraphs 5 – 9 of the Statement of defence of the 4th

Respondent at pages 87 – 88 of the record of appeal.

RESOLUTION OF ISSUE 1
It is clear that the first issue raised by the appellant borders on the jurisdictional competence of the trial Court to entertain the 1st respondent’s action. Firstly, the appellant challenged the locus of the 1st respondent to institute the action which is the subject of the instant appeal and secondly, he argued that by virtue of Section 22 (2) Action Law, Cap 4 Laws of Enugu 2004, the 1st Respondent’s action was statute barred, having been instituted 22 years after the cause of action arose. When an issue of a jurisdictional nature is raised, a Court, whether trial or appellate, is duty bound to first determine same. The Court would only consider the issues presented before it after being satisfied that it can assume jurisdiction. See A.G. FEDERATION V. A.G. LAGOS STATE (2017) LPELR – 42769 (SC).

interest in the subject before his suit. Once he discloses in his pleadings, his sufficient interest in the subject matter, he is by law entitled to sue.”

From the pleadings on record, it is not a fact in issue that the 1st and 4th Respondents are children of the late J.W. Ochin, whom the 1st Respondent traced his root of title to the land in dispute to (See Amended Statement of Claim at pages 22-30 of the record of appeal). From the totality of the evidence led in support of the 1st Respondent’s case at trial, including the evidence of PW4 which is at pages 58-59 of the record, it is established that the 1st and 4th Respondents were jointly granted letter of administration in respect of their late father’s estate. It is the appellant’s contention that being joint administrators of the estate of their late father, the 1st and 4th Respondents who were plaintiff and 2nd defendant at trial, ought to have sued jointly as plaintiffs.

Contrary to the appellant’s contention challenging his capacity to institute the action without his brother as co-plaintiffs, the 1st Respondent averred having been granted the land in dispute

after the sharing of the father’s estate amongst the beneficiaries; he was entitled to institute the action. A careful examination of the 1st Respondent’s pleadings at pages 22 – 30 of the record of appeal will reveal that he pleaded the sharing/partitioning of his deceased father’s estate. The appellant in his argument under this issue made heavy reliance on the 4th Respondent’s amended statement of defence at pages 87 – 90 of the record of appeal wherein the 4th respondent averred that their father’s estate had not been shared. (See paragraphs 5 – 9 of the 4th Respondent’s statement of defence at pages 87 – 90 of the record of appeal). I am of the view that the appellant’s contention in this regard cannot be maintained and contrary to his submission that there was evidence in the 4th Respondent’s Amended Statement of defence, it is clear on the record that the 4th Respondent who was 2nd defendant at trial did not defend the action. In such a situation, the 4th Respondent abandoned his pleadings and in the absence of evidence in support of a party’s pleadings, the Court

is bound to discountenance the said pleadings. See ATAGBOR V. OKPO & ORS (2013) LPELR – 20207 (CA).

In the absence of any credible evidence to the contrary, the Court is inclined to accept the 1st Respondent’s testimony regarding the distribution of his father’s estate. Therefore, his capacity to sue as a beneficiary of the estate of his deceased father cannot be disturbed. The appellant’s contention that the 1st respondent ought to have instituted the action together with 4th Respondent as co-plaintiffs cannot fly in the face of the fact that the record transmitted to this Court bears witness that the 1st Respondent sued his brother as 2nd defendant at the trial Court. The question I ask is: was the Appellant expecting the 4th Respondent to sue and be sued in the same action? Certainly not.

The second limb of the objection to the jurisdiction of the trial Court to entertain the action of the 1st respondent is that the action was statute barred by virtue of Section 22(2) of the Action Law, Cap 4, Laws of Enugu State, 2004. It has been held in an imprimatur of judicial authorities of this Court and the Supreme Court that

in order to determine whether an action is statute barred, the Court should inquire from the pleadings before it when the cause of action accrued and thereafter, compare same with the date the action was instituted. If the Court so discovers that the time stipulated in the limitation law has already lapsed before the institution of the action, then the action shall be declared statute barred and the right of the Claimant to institute the action to vindicate his right will be pronounced extinguished. See NNPC & ANOR V. EFEBO (2019) LPELR – 47904 (CA).

According to the Appellant’s counsel, the 1st Respondent’s cause of action was statute barred because the appellant’s predecessors-in-title have always been in possession of the land while the 1st Respondent’s father only allegedly acquired the land in 1972. And that by virtue of this, the 1st Respondent’s cause of action arose in 1972. It is trite law that in determining when the cause of action arose, the Court must only consider the Statement of Claim. See YARE V. NATIONAL SALARIES INCOME AND WAGES COMMISSION (2006) 2 NWLR (PT. 965) 546. In determining when a cause

of action accrues, the Supreme Court held in SIFAX (NIG) LTD V. MIGFO (NIG) LTD (2018) 9 NWLR (PT. 1623) 138 at 191 PARAS A-B:
“The accrual of the cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin to maintain his action. Time begins to run when the cause of action crystalizes or becomes complete.”

The pertinent question here is when did the 1st Respondent’s cause of action crystalize? A cursory look at Paragraph 17 of the 1st Respondent’s amended statement of claimant page 25 of the record of appeal would reveal that the 1st Respondent’s cause of action accrued in 2004. For ease of reference, the 1st Respondent averred in his amended statement of claim that:
“17. The plaintiff pleads that on 17th May, 2004, the 1st defendant acting by herself, agents, hired thugs, and policemen without the consent and/or permission of the plaintiffs or his tenants on the disputed land, wrongfully and forcefully entered the disputed land, ejected the tenants therefrom, destroyed all structures and properties thereon.” (Underlining mine for emphasis).

Flowing from the quoted excerpt from the 1st Respondent’s amended statement of claim, it is clear that the events that led to the action that culminated in this appeal only crystalized in the year 2004. How then could the cause of action have arisen earlier than that? Therefore, the argument of Appellant’s counsel that his predecessors-in-title had been in possession long before 1972 when the 1st Respondent’s predecessors in title allegedly bought the land cannot hold water. The relevant process to consider when determining whether or not an action is statute barred is the statement of claim. The appellant’s task of establishing limitation of action was further compounded by the fact that neither of the parties’ predecessors-in-title was a party to the action. I hereby resolve that the 1st Respondent’s cause of action accrued when the Appellant took action by taking over possession in 2004. The consequence therefore is that the trial Court had jurisdiction to entertain the 1st Respondent’s action. The issue is hereby resolved against the Appellant and in favour of the 1st, 2nd and 3rd Respondents.

A careful examination of issues 2 and 3 distilled by the Appellant and adopted by the 1st, 2nd and 3rd Respondents would reveal that the substance of the two issues are intertwined. In the light of this, I will therefore consider both issues together.

ARGUMENTS AND SUBMISSONS ON ISSUES N0S. 2 & 3
Appellant’s Counsel submitted that the Appellant tendered as exhibits documents which leaves no doubt that the property in dispute belongs to him. He also submitted that the land in dispute did not belong to Nnaji Ogbodo and so, he could not have legally alienated the land in dispute to the father of the 1st Respondent. Counsel further submitted that in an action predicated on declaration of title to land, if the Plaintiff fails to prove his root of title, he cannot thereafter fall back on long possession. He referred to OWHONDA V. EKPECHI (2003) 9 SCNJ 1. He submitted that the 1st Respondent was unable to prove the identity of the land in dispute and that the plaintiff in a claim for ownership of land is duty bound to prove the identity of the land in dispute. He relied on OKONKWO V. OKONKWO (2010) 6 SCNJ 1. Counsel also submitted that there were material

contradictions in the 1st Respondent’s case and that such contradictions should have availed the Appellant. He cited the case of USIOBAIFO V. USIOBAIFO (2005) 1 SCNJ 227. He therefore urged this Court to allow this appeal and set aside the judgment of the trial Court.

On his part, Counsel for the 1st, 2nd and 3rd Respondents submitted that as at the time when the Appellant claimed to have purchased the land, the 1st Respondent was in exclusive possession through title derived from his late father. He further submitted that any person who goes on the land without his permission would be a trespasser. He relied on ONAGORUWA V. AKINREMI (2001) 13 NWLR (PT. 729) 38. He also submitted that the contention by Appellant’s Counsel that Nnaji Ogbodo Ngwuene did not sell the land in dispute to the 1st Respondent’s father or that the land is a communal land cannot hold water because it amounts to trying to contradict a written document with oral evidence. Counsel referred the Court to LARMIE V. DOM & SERVICES LTD (2005) 18 NWLR (PT. 958) 438. He further submitted that there was unchallenged evidence put forward by PW5 to the effect that the said

Nnaji Ogbodo Ngwuene disposed of adjacent and connected lands in a personal capacity. Counsel also submitted that the Appellant was unable to prove fraud against the 1st Respondent. He finally urged this Court to affirm the judgment of the trial Court and to dismiss the appellant’s appeal for lacking in merit.

Appellant’s Counsel on this issue in his reply brief largely reiterated the submissions and arguments already contained in his appellant’s brief of argument.

RESOLUTIONS OF ISSUES 2 & 3
The law is settled by virtue of Sections 131-134 of the Evidence Act that the onus is on the plaintiff in a civil case to prove by cogent and credible evidence that he is entitled to the reliefs he seeks from Court. The standard of proof therefore is on the balance of probability or preponderance of evidence. See A.G. BAYELSA STATE V A.G. RIVERS STATE (2006) 18 NWLR (PT. 1012) 596, (2006) LPELR-615 (SC); WOLUCHEM V GUDI (1981) LPELR- 3501.

The case of the parties is predicated on declaration of title to land. It has been long settled since the case of IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 that there are five ways of establishing

title to land. Thus: (1) Traditional evidence (2) By production of document or documents of title (3) Acts of ownership such as selling, leasing, renting or farming extending over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner (4) Acts of long possession of the land (5) Proof of possession of connected or adjacent land in circumstances, rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. The proof of any one of the five ways is sufficient as each of them stands or fails on its merit.
It is an age long principle that a party who seeks declaration of title to land must prove his case through credible, cogent evidence. Where such a party fails in his duty, then his claim must necessarily fail. See the case of NWOKE V. IKOGHODE & ORS (2017) LPELR – 43099 (CA) 1 at 17-19 paras. D-C.

In the instant appeal, the 1st Respondent led credible evidence to the fact that his father acquired the land in dispute from one Nnaji Ogbodo Ngwuene via an Indenture of Lease in 1972 and he had tenants on the land from whom

he was collecting rents without any hindrance. He was also assertive on the fact that after the demise of his father, himself and the 4th Respondents were granted a Letter of Administration in respect of their late father’s estate. The properties constituting the estate were later distributed and the land in dispute was shared to the 1st Respondent. Sadly, there was no credible evidence adduced by the appellant challenging these facts. The Appellant on the other hand, traced his root of title to one Mr. Alexander Egbo who in turn derives his own title from an Irrevocable Power of Attorney executed in his favour by the Umu Nnaji Ogbodo Ugwuani family of Amechi Awkunanaw. The said Mr. Alexander Egbo was also said to have a Deed of Consent executed in his favour by the Umu Nnaji Ogbodo Ugwuani family before purportedly alienating the property in dispute to the Appellant in favour of whom he also executed an Irrevocable Power of Attorney. Both Powers of Attorney and the Deed of Consent were tendered in evidence. The Appellant purportedly acquired the land in dispute in 2004. Both the Appellant and the 1st Respondent have registered documents in respect of the

property in dispute.

The Appellant claims that the identity of the land in dispute is unclear. It appears to me that he makes this claim because the parties referred to the land by different names. However, apart from the name of the land, there is no evidence that the identity of the land was in dispute. In fact, it appears to me that the land is actually clearly identified and agreed upon by the parties. As the trial Court rightly held at page 211 of the record of appeal, Exhibit 13 clears the controversy as regards the land in dispute. Proof of land in dispute is unnecessary where same is known to both parties. See OGBENNA & ORS V. KANU (2018) LPELR – 45072 (CA). On the issue of identity of the land in dispute, the trial Court at page 211 of the record of appeal held that:
“On the pleaded facts as well as evidence led thereon, the parties locked horns over the identity of the land in dispute. I think they did so merely for the hell of it. Exhibit 13 seems to put the identity and scope of the land in dispute beyond controversy and doubt. It is a dispute survey plan dated 29th August 2003. It is comprehensive as well as descriptive

of the significant features of the land in dispute.”
I agree entirely with the learned trial Court that the identity of the land in dispute was clearly known and was not in contention.

The Late Chief J.W.U. Ochin from whom the 1st Respondent derived his title, acquired the land via an Indenture of Lease in 1972 and registered same. The Appellant only claims to have acquired the land in 2004. The predecessors-in-title of the Appellant who allegedly had been in possession of the land long before the father of the 1st Respondent acquired the land in dispute did not challenge him since 1972. Even after his death, they did not immediately challenge the title of the 1st Respondent. If in truth, the land had belonged to the Umu Nnaji Ogbodo Ugwuani family, why did they not challenge the late father of the 1st Respondent before his demise? Why did they not challenge the grant of Letter of Administration over the land in dispute? The Appellant only took action by mobilizing thugs and the police to forcefully eject the 1st Respondent’s tenants after the latter had obtained a Statutory Building Certificate of Occupancy.

The 1st Respondent through his witnesses led credible evidence to the effect that before the demise of his father, the late J.W.U. Ochin had put tenants on the land from whom he collected rents. After he took over his possession of the disputed land, the 1st Respondent commissioned his mother to receive rents on his behalf and his mother in turn commissioned the 4th Respondents to do same (see paragraph 10, 15 and 16 of the Ndubuisi Kanu’s Statement on Oath at pages 44-45 of the record). The 1st Respondent tendered Exhibits 1-9 which are receipts issued to tenants on the land in dispute, Exhibit 10 which is a letter dated 30/4/98 with the title “Payment of Rents” which is a letter written on behalf of the 1st Respondent by his legal practitioner to tenants occupying the land in dispute. PW2 and PW3 were tenants on the land in dispute who used to pay rents to the 1st Respondent’s father and later to the 4th Respondent. PW2 (Chukwudi Dike) at paragraphs 6 and 7 of his witness deposition at page 54 of the record of appeal wherein he deposed thus:
“6. I knew late J.W.U. Ochin as the owner of No. 165 Agbani Road Enugu and he admitted me as one of

the tenants in the property in the year 1993 and I paid rents to him when he was alive.
7. After the death of J.W.U. Ochin the plaintiff instructed the tenants in the property including myself, to pay rents to his mother, but his mother due to old age did not collect the rent directly but through the 2nd defendant to whom we paid the rents and he issued receipts.”

Appellant’s counsel did not cross-examine PW2 as to the veracity or otherwise of the above excerpted testimony (see page 131 of the record of appeal). However, under cross-examination by the counsel to the 4th respondent, PW2 stated thus:
“I was paying rent to the 2nd defendant and he issued me receipts.” (See page 131 of the record of appeal).

Similarly, PW3 (Sunday Oddy) stated at paragraph 6 of his statement on oath averred that:
“I was let into No. 165 Agbani Road as a tenant in 1990 by late J.W.U. Ochin and I paid rents to him.”

During the cross-examination of PW3 at page 132 of the record of appeal, counsel for the appellant also failed to contradict the witness on the veracity of the fact that he was let into the property in

dispute in 1990 by the late J.W.U. Ochin to whom he also paid rents. PW3 however stated under cross-examination by 4th respondent’s counsel at page 132 of the record of appeal as follows:
“I was let into the premises by the father of the 1st defendant (sic) now deceased, Mr. Ochin. I paid rent thereafter to the 2nddefendant and he issued me receipts.”

For the reasons set out above, I cannot but agree with the learned trial judge when he held at pages 209 – 210 of the record of appeal that:
“Under paragraphs 4 to 22 of the plaintiff’s amended statement of claim and evidence of oath in Court, the plaintiff traced his root of title to the land in dispute and how since September 1972, his family had maintained continuous and uninterrupted possession of the land in dispute. It is noteworthy that the 2nd defendant did not contest the postulations of the plaintiff relative to the above. The case of the defence relative to the above seems to me weaker. I therefore hold that the plaintiff through his family had maintained continuous possession of the land in dispute since September 1972 – a period of 22 years

prior to the commencement of this action. It is settled on the authorities that the continuous and uninterrupted possession of land for more than 12 years is critical and or decisive in the assertion of title to land in Nigeria.
This brings me back to a specific consideration of possessory title. A possessory title to land was recently recognized and re-stated by the Supreme Court. It might perhaps be defined as “a title undefended by muniments (sic) and the holder of which has only undisturbed and unqualified length of possession on which to rely; See Stroud Judicial Dictionary; and the recent case of Madam I. Arase v. Peter U. Arase (1981) 5 SC at Page 72 where that definition was approved by the Supreme Court. Acts of possession and enjoyment of land for a period of not less than thirteen could be evidence of ownership and/or a right of possession of that land. The decision of the Supreme Court in Fredrick N. Otogbolu v. Okeluwa & others (1981) 6-7 SC 99 has re-established the doctrine of possessory title as a foundation or base for a claim of a declaratory title to land or other ancillary reliefs by a plaintiff.
It is therefore the

holding of this Court that the plaintiff had established superior possessory rights to the land in dispute than the defendants.”

The law is trite that it is the primary duty of the trial Court to properly evaluate and ascribe probative value to the evidence led by both parties before making its finding on the specific issues raised by the parties. The basic guidelines for evaluation of evidence have been stated in a legion of decided cases. The trial Court must properly appraise and evaluate the relevant and material evidence led in the case. After an evaluation, the evidence is placed on an imaginary scale to determine which side the scale tilts. That is to say which of the evidence weighs more and should attract higher probative value? In EZECHUKWU & ANOR V. I.O.C. ONWUKA (2016) LPELR – 26055 (SC) AT 16 – 18 (D – A), the Supreme Court held that:
“…To arrive at enduring decisions, the two Courts must correctly evaluate the affidavit evidence of the contending parties and apply the relevant laws to the ascertained facts. In Mogaji V Odofin (1978) 4 SC 65 at 67 this Court has outlined the proper

procedure to be adopted by Courts in the particular task thus:- “In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weight them together. He will then see which is heavier not by the number of witnesses called by each party, but by quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:- (a) Whether the evidence is admissible; (b) Whether it is relevant; (c) Whether it is credible; (d) whether it is conclusive; and (e) Whether it is more probable than that given by the other party. Finally, after invoking the law, if any, that is applicable to the case, the trial judge will then come to his

final conclusion based on the evidence which he has accepted.” The above procedure applies to affidavit evidence as it does to oral evidence. See also Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432 at 451.”
In the instant case, the Court below rightly found that the evidence of the 1st Respondent is more probable than that of the Appellant. The trial Court carefully applied the provision of the law regarding proof of title to land and rightly applied same to the facts and evidence presented by parties before it. I therefore see no reason why I should disturb the findings and conclusion of the trial Court in this regard.

At the time of purportedly selling the land to the Appellant, Mr. Alexander Egbo had no title to Convey. It is settled law that a person cannot give what he does not have, otherwise known as nemo dat quod non habet. See GBADAMOSI & ORS V. AKINLOYE & ORS (2013) LPELR — 20937 (SC). I hereby hold that the Appellant has no valid title to the land in dispute and that his entry upon the land in dispute on 17th May 2004 constituted trespass. I also hold that the 1st Respondent proved his title to the land in dispute by acts of

long possession which is one of the ways of proving title to land as held in the case of IDUNDUN V OKUMAGBA (supra). I hereby resolve issues 2 and 3 in favour of the Respondents and against the Appellant.

In conclusion, I hold that this appeal lacks merit and same is hereby dismissed. The decision of the trial Court delivered by I.A. Umezulike, J, on 3rd June, 2016 in Suit NO E/603/2004 hereby affirmed. Costs of N50,000 is hereby granted in favour of the 1st to 3rd Respondents against the Appellant.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the benefit of reading the Judgment of my learned brother ABUBAKAR SAIDQ OMAR, JCA before now and he has characteristically dealt with the Issues raised in the Appeal with utmost clarity and resolved them in accordance with decided authorities of the Supreme Court and indeed this Court. I agree therefore with his reasoning and conclusion that the Appeal is unmeritorious and should fail. I too dismiss same with N50,000 costs granted in favour of the 1st to 3rd Respondents against the Appellant

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the

draft of the judgment delivered by my learned brother, ABUBAKAR SADIQ OMAR, JCA. I agree with his reasoning and conclusion that the appeal has no merit and is hereby dismissed.

Appearances:

Chike Ukoh, with him, Christian Uzor For Appellant(s)

C. Madu – for 1st, 2nd and 3rd Respondents For Respondent(s)