IWOBA v. NWAOKOLIE (2021)

IWOBA v. NWAOKOLIE

(2021)LCN/15097(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Monday, March 15, 2021

CA/AS/116/2016

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

CHIKE IWOBA APPELANT(S)

And

ALEX NWAOKOLIE RESPONDENT(S)

RATIO

POSITION OF THE LAW WHERE A PLAINTIFF RELIES AND PROVES A DEED OF CONVEYANCE AS HIS ROOT OF TITLE

See;AIYEOLA v PEDRO (2014) LPELR – 22915 (CA), where it was held thus; “When a plaintiff in a land case relied on and proves a conveyance as his root of title, he does not need to go beyond his vendor and then proceed to prove that vendor’s title as well. Unless the vendor’s title has become an issue in the case, parties to a land case which titles are rooted in Deeds of Conveyance need not plead or prove the title of their vendors. Dosunmu v. Joto (1987) 2 NSCC 1182 SC.” per PETER – ODILI, J.S.C (PP. 36 – 37, PARAS. G – A) See also; ASHIRU v OLUKOYA (2006) LPLER – 580 (SC), where the apex Court held that; “…where the title of the grantor is in issue, production of documents of title without more is not sufficient proof of title to land since in such a situation, it is the duty of the claimant to go further to not only plead and trace the root of title of the grantor or vendor but prove same on the balance of probability. Where the claimant fails to discharge this onus his claim must fail.” per ONNOGHEN, J.S.C (P. 32, PARAS. B – C) The salient points in the issue of tracing the root of title arises in the area of land listed in the case of OKE v OGIDI & ORS (2017) LPELR – 42396 (CA); “It is not in doubt, as laid down in the case of Idundun v. Okumagba (supra), that the production of documents of title is one of the five recognized ways by which a Plaintiff may prove ownership of land. Such documents of title must be duly authenticated in that their due execution must be proved unless they are produced from proper custody in circumstances which gives rise to the presumption of due execution in the case of documents which are 20 years old or more at the date of the transaction. See Thompson v Arowolo (2003) 7 NWLR (Pt. 818) p. 126 at 208. However where the Plaintiff relies on and tenders documents of title as his source of title, the Court has the inevitable duty to inquire on the following questions; (a) Whether the document of title is genuine and valid; (b) Whether it has been duly executed, stamped and registered; (c) Whether the grantor had the authority and capacity to make the grant; (d) Whether in fact the grantor had what he purported to grant; and (e) Whether it has the effect claimed by the holder of the instrument. It therefore means that, the mere production of a document of title, even though valid on its face, will not necessarily carry with it automatic relief by grant of the declaration of title sought. The Court will have to satisfy itself by taking into consideration the above enumerated factors. See Romaine v. Romaine (1992) 4 NWLR (Pt. 238) p. 650; Akinduro v. Alaya (2007) All FWLR (Pt. 381) p.1653 at 1665; Ngene v. Igbo (2000) 4 NWLR (Pt. 651) p.131; Lawson & Anor v. Ajibulu & Ors (1997) 6 NWLR (Pt. 507) p. 14 and Okunowo v. Molajo All FWLR (Pt. 590) p.1386 at 1396-1397. See also Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) p.1.” per TSAMMANI, J.C.A (PP. 30 – 31, PARAS. D – F) PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

ON WHOM LIES THE BURDEN OF PROOF WHERE A PARTY LEADS EVIDENCE TO PROVE EXCLUSIVE OWNERSHIP OF LAND AS AGAINST A COMMUNITY’S CLAIM

WHETHER THE ONUS OF PROOF IS ON THE DEFENDANT WHERE A PLAINTIFF LEADS EVIDENCE TO THE EFFECT THAT A LAND IN DISPUTE IS COMMUNAL

In OJENGBEDE v ESAN & ANOR (2001) LPELR – 2372 (SC) the apex Court held that: “The principle of law is settled established that where a plaintiff, as in the present case leads evidence to the effect that a land in dispute is communal, the onus is squarely on the defendant who claims ownership therefore to establish that the land belongs to him exclusively. See UDEAKPU EZE V IGLIEGBE AND ORS 1952 14 WACA 61, ATUAYA V ONYEJEKWE (1975) 3 SC 161 AT 167” per IGUH J.S.C. (P. 22, PARA A – B)
See also; NWAVU & ORS v OKOYE & ORS 2008 LPELR -2116 (SC); OLODO & ORS v JOSIAH & ORS (2010) LPELR – 2584(SC). PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

DUTY OF THE COURT REGARDING AN UNCHALLENGED EVIDENCE

In OLOHUNDE v ADEYOJU & ORS (2000) LPELR – 2586 (SC) it was held thus; “The law is well settled that where the evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the case to act on such unchallenged evidence before it. See Isaac Omoregbe v. Daniel Lawani (1980) 3 – 4 SC 108 at 117, Odulaja v. Haddad (1973) 11 SC 357, Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 at 81, Abel Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 322, (1961) All NLR 917.” per IGUH, J.S.C (P. 33, PARAS. C – D) PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

POSITION OF THE LAW REGARDING WHETHER OR NOT A DECLARATORY JUDGMENT CAN BE GRANTED ON ADMISSION BY A PARTY OR IN DEFAULT OF PLEADINGS

… the Court in NWOKEDIASO v ONUORAH (2000) LPELR – 12004 (CA) held thus; “It must be noted that the position of things in relation to whether or not a declaratory judgment can be granted on admission by a party or in default of pleadings, appears fluid. Some decades ago, judgments used to be entered in declaratory matters on default of pleadings. Refer to Ogunleye v. Arewa (1960) WRNLR (Pt.1) 9, Babajide v. Aisa (1966) 1 All NLR 254. It occurs to me that from a plethora of recent authorities, Courts have shifted the ground. They insist on evidence before a judgment shall be given in a case for declaration. In Wallersteiner v. Morie supra at page 251, Buckley, LJ., said- “It has always been my experience and I believe it to be a practice of long standing that the Court does not make declarations of right either on admission or in default of pleadings but only if the Court was satisfied by evidence.” Such is in consonance with reason as declaratory judgments basically have to do with discretion. And such discretion should be rooted in considered evidence. In Alhaji Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) 90; (1988) 12 SCNJ 166 at p. 177 the Supreme Court insisted that in a case of declaration, since the grant of declaratory relief is within the discretion of the Court, the plaintiff to succeed must give evidence of his entitlement to the declaration and could not rely on admission in the pleadings. This has been the trend. Refer to Lewis Peat (NR.) Ltd v. Akhimien (1976) 7 SC, 157; Bello v. Eweka (1981) 1 S.C. 101, Ogbonna v. A.G. Imo State (1992) 1 NWLR (Pt.220) 647; Faponle v. University of Ilorin Teaching Hospital Board of Management (1991) 4 NWLR (Pt.183) 52. In this case, it was pronounced with certainty by Ogundare J.S.C. that a declaratory judgment can only be given where the justice of the case warrants it having regard to the pleadings and evidence led in proof by the plaintiff in which he discharged the onus of proof on him under Section 136 of the Evidence Act. To make assurance doubly sure, I must still refer to Nigeria Airways v. Ahmadu supra, Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254 and Salu v. Egeibon(1994) 6 NWLR (Pt.348) 23, as well as Mortune v. Balonwu & Anor. (2000) 5 NWLR (Pt.655) 87 at 121; 128. It is clear from the above analysis that the declaratory judgment awarded to the plaintiff by the Trial Court without any iota of evidence missed the target. And, as such, the judgment was entered to no avail. It cannot stand in the prevailing circumstance.” per FABIYI, J.S.C (PP. 13 – 15, PARAS. D – E). See also; DONGARI & ORS v SA’ANUN (2013) LPELR – 22084 (CA); AKINBONI & ORS v AKINTOPE & ORS (2016) LPELR – 40184 (CA); SANNI & ORS v HUGHES & ANOR (1999) LPELR – 13190 (CA). PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

BURDEN PLACED ON HE WHO ASSERTS

It is trite that he who asserts must prove. See; Section 131 (1) of the EVIDENCE ACT; DASUKI v FRN & ORS (2018) LPELR – 43897 (SC). In OYEDELE & ANOR v JIMOH (2012) LPELR – 8536 (CA), this Court held thus; “The rule is always that he who asserts must prove. See Section 135 of the Evidence Act, and the case of Ogundepo vs. Olumesan (2012) 5 NWLR1 held 3; Okubule v. Oyagbola (1990) 4 NWLR (pt. 147) 723. See also Eyo vs. Onuoha (2011) 39 WRN 1, held 4, where the Supreme Court said: “It is also trite that he who asserts must prove, for without the cogent and credible evidence of the party asserting, he will not succeed in his suit and obtain judgment in his favour. See Section 135 of the Evidence Act, Cap.112, Laws of the Federations of Nigeria 1990; Imana vs. Robinson (1979) 3-4 SC 1; (1979) 12 NSCC 1; 1979 1 ALL NLR 1 and Archibong vs. Ita (2004) 13 WRN; (2004) 2 NWLR (Pt.858) 590.” per MBABA, J.C.A (P. 44, PARAS. B – F) PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

INTERPRETATION OF THE PROVISION OF THE EVIDENCE ACT 2011 WITH REGARDS TO PROOF OF THE NATIVE LAW AND CUSTOM OPERATIONAL IN ANY GIVEN PLACE

In AMEH & ANOR v SULEIMAN & ORS (2018) LPELR – 46543 (CA); “The Evidence Act 2011 stipulates with regards to proof of the native law and custom operational in any given place, the following: SECTION 16 1. A custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence. 2. The burden of proving a custom shall lie upon the person alleging its existence. SECTION 17 A custom may be judicially noticed when it has been adjudicated upon once by a superior Court of record. SECTION 18 1. Where a custom cannot be established as one judicially noticed, it shall be proved as a fact. 2. Where the existence or the nature of a custom applicable to given case in issue, there may be given in evidence the options of persons who would be likely to know of its existence in accordance with Section 73. 3. In any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy, or is not in accordance with natural justice, equity and good conscience. SECTION 73 1. When the Court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed are admissible. 2. The expression “general custom or right” includes customs or rights common to any considerable class of persons.? Interpreting these requirements of the Evidence Act, the Supreme Court, in Oyewunmi v. Ogunesan (1990) 3 NWLR Part 137 Page 182, held at Page 215 – 216 Para F – A per Karibi – Whyte J.S.C., as follows: “The locus classicus case for the ascertainment of Customary law and subsequently of judicial notice is the Judicial Committee of the Privy Council decision of Kobina Angu v. Allah P. C. 74 – 28, 43. There, the formula for the ascertainment of native law and custom was stated to be as follow – “As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs, by frequent proof in the Courts, have become so notorious that the Courts will take judicial notice of them.” According to Angu v Allah, the two tests are in the alternative. They are (a) Calling witnesses acquainted with the custom in the Courts. (b) when by frequent proof in the Courts the particular custom becomes notorious. In respect of (a) proof of the customary law will depend on the witnesses called. But in (b) by frequent proof in other cases the Court will take judicial notice of the custom as having been established where it arises for proof, in the case before, it, and no more proof will be required.” per ADEFOPE – OKOJIE, J.C.A. (PP. 15 – 17, PARAS. D – F) See also; OLUBEKO v AWOLAJA & ANOR (2017) LPELR – 41854 (CA); FALAKI & ORS v FAGBUYIRO & ORS (2015) LPELR – 25848 (CA); NWABUDE & ANOR v UGODU & ORS (2011) LPELR – 9173 (CA); OGBULI v OGBULI (SUPRA); ADEDIBU v ADEWOYIN (SUPRA). PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State, Akwukwu – Igbo Judicial division coram Justice H. O. Akpotowho (J) delivered on the 27th day of February, 2015.

The claims of the Appellant at the lower Court were;
1. A declaration that the claimant is entitled to the statutory right of occupancy of all that piece/parcel of land, measuring approximately 1673:80 square meters property of Chike Iwoba, lying, being and situate at Aniaunor land of Ogbeowelle Quarters, Okpanam Town, Oshimili North Local Government Area of Delta State of Nigeria.
2. Five Million Naira (N5,000,000.00) as a specified sum of damages for trespass into the land.
3. An interlocutory injunction restraining the Defendant, their agents, privies representatives in interest and whoever that claims under or through them from trespassing, selling and mortgaging on the said land in dispute.
4. Perpetual injunction restraining the Defendants, their agents, privies representatives in interest and whoever that claims under or through them from trespassing.

The Defendant/Respondent filed a counter claim thus;
1. A declaration that the Defendant is the one entitled to the statutory right of occupancy of ALL THAT piece or parcel of land lying, being and situate at Aniaunor land of Ogbeowelle Okpanamin Oshimili North Local Government Area of Delta State of Nigeria, measuring approximately 100ft x 200ft.
2. One Million Naira (N1,000,000.00) being damages for trespass.
3. Perpetual injunction restraining the Claimant, his agents, privies and representatives in interest from trespassing into defendant land aforesaid.

The Appellant failed to file a Reply and defence to the Counter – claim to the Respondent’s statement of defence and counter – claim thus the trial Court deemed the uncontroverted Respondent’s evidence at the trial Court admitted and same formed basis of the trial Court’s judgment in Respondent’s favour.

The Appellant dissatisfied with the judgment filed a Notice of appeal on 26th March, 2015 and upon leave amended the Notice of appeal and further amended same now Amended Notice of appeal on 30th March, 2016.

The Appellant filed an amended brief of appeal on 24th September, 2019 and a reply on 14th July, 2020 settled by Lordman C. Agbata Esq of L. C. Agbata & Co wherein six issues were distilled thus;

ISSUES FOR DETERMINATION
1. Whether a party whose title to a parcel of land is predicated on a title document is expected to proof the title of his vendors.
2. Whether a relief for declaration of title to land can be granted on failure of the other party to file a defence or on admission of the other party.
3. Whether the Defendant Respondent herein has proven exclusive ownership of this portion of land of the Aniazunor land, Communal land of the Ogbeowelle quarters as to entitle him to the Judgment of the trial Court.
4. Whether the Defendant, the Respondent herein has proved the customs and traditions of the Ogbewelle quarters, Okpanam as regards acquisition of land as to entitle him to the Judgment of the trial Court.
5. Whether having regards to the evidence led at the trial of this suit, the Judgment of the trial Court is not against the weight of evidence.
6. Whether the doctrine of estoppels does not stopped the Respondent from laying adverse claim on this said parcel of land.

The Respondent also filed his brief of argument on 17th June, 2020 and was settled by Emeka Uwafili Esq, Rosemary Nwabuzor (Mrs.), A. I Uwadinma Esq., of Emeka Uwafili & Associates wherein he adopted the issues distilled by the Appellant.

The Respondent filed a preliminary Objection alongside the brief on 1st June, 2018 that grounds 4 & 5 of the Appellant’s issues for determination are not related to or raised from any of the Appellant’s ground of appeal and that the appeal be struck out.

FACTS OF APPEALS
The facts of this appeal are that the Appellant by a writ of summons claimed against the Respondent a declaration of title to a parcel of land of approximately 1673.130 square meters lying at Aniazunor land of Ogbeowelle quarters, Okpanam community, Oshimili North Local Government Area of Delta State. He purchased the land in question from one Okwukwe Mordi (now late) a onetime chairman of Ogbeowelle youths while the Defendant was the vice chairman of the Ogbeowelle youths at the time of the said transaction and was aware of this transaction but did not challenge the Claimant or Okwukwe Mordi.

Later the Claimant discover he wrongly purchased the land from Okwukwe Mordi, he repurchased same from the head and principal members of the family of Ogbeowelle quarters of Okpanam community and a fresh deed of conveyance was executed in his favour and thereafter Appellant processed and obtained a certificate of Occupancy.

The Respondent now counterclaims that he is entitled to the grant of statutory right of occupancy over the same land having inherited same from his father Eluka Nwokolie also a member of Ogbewolle quarters.

After trial, the lower Court entered judgment in favour of the Respondent hence the Appellant filed this appeal.
The Respondent filed a preliminary Objection which would be addressed.

Firstly, see SULEMAN & ORS v UKANA & ORS (2019) LPELR – 46827 (CA);
“The rationale for hearing a preliminary objection before the substantial appeal is because “a preliminary objection seeks to provide an objection before the actual commencement of the thing objected to. In other words, the primary purpose of every preliminary objection is to determine the proceedings in limine and thereby dispense

with the need to go into the suit, application or appeal”. Per Augie, J.S.C. in Peoples’ Democratic Party & Anor. v. Chief (Sir) Victor Umeh & Ors. (2017) 12 NWLR (pt. 1579) 272 at 293 – 294. See also Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) 637; Onyemeh v. Egbuchulam (1996) 5 NWLR (Pt. 448) 255; Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166; Abiola v. Olawoye (2006) 13 NWLR (Pt. 996) 1 and Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421.”
per ADUMEIN, J.C.A (PP. 5 – 6, PARAS. F – D)

PRELIMINARY OBJECTION
The preliminary objection contends that;
1. Grounds 4 & 5 of the Amended notice of appeal of 23rd March, 2016 have been abandoned as no issue was formulated thereon.
2. Issue 3 of the issues for determination is not related to or raised from any of the Appellant’s ground of appeal.

The Respondent argued at clause 3.01 of the brief that based on the grounds of the preliminary objection the grounds 4 & 5 and issue 3 be struck out.

Counsel submits that the grounds are the bedrock of any appeal and that having not distilled issues there from, it ought to be struck out while grounds 4 &

5 are incompetent and have been abandoned, he relied on OKEKE v EZIKE (1993) 4 NWLR (PT. 290) 751; CONTRACT RESOURCES NIG LTD v STANDARD TRUST BANK LTD (2014) ALL FWLR (PT 713) AT 1850 PARA G-H.

He emphasized that the issues for determination did not flow from the grounds of appeal filed and therefore completely useless.

The Appellant in its reply brief submitted that upon receipt of the preliminary objection they obtained leave on the 9th June, 2020 to amend their Amended notice of appeal and brief of argument to regularize the defect complained of.

Despite this, they are surprised that the preliminary objection was still argued and that same has been overtaken by events.

However, the Appellant submitted that grounds 4 & 5 of the further amended Notice of appeal raised issues distilled there from and argued same in its brief. Issue 6 is distilled and raised from ground 4 of the further amended Notice of appeal and issue no. 3 is distilled from the ground 5 of the further amended Notice of appeal and have been extensively argued in the amended brief.

He urged that the preliminary objection be dismissed with cost.

RESOLUTION
I have examined grounds 4 & 5 of the amended Notice of appeal filed on 30th March, 2016 which is shorn of particulars:
“The Court erred in law when he failed to consider the principle of estoppels by conduct, stopped the Respondent from asserting title to this parcel of land in dispute when the Respondent did not challenge the Claimants/Appellant’s vendors at anytime.
5 The judgment of the trial Court delivered on 27/2/15 is against the weight of evidence before the Court.’’

On 24th September, 2019, the Appellant further amended the notice of appeal thus introduced new grounds 4 & 5 and ground 6 replaces the old ground 5 in the amended Notice of appeal of 30th March, 2016. In the Appellant’s brief, issue 6 is formulated from ground 4 at page 13 in the brief thus;
“Whether the doctrine of estoppels does not operate to estop the Respondent from laying adverse claim on this parcel of land”

While issue 3 of the amended brief is distilled from the ground 5 therein which deals with the exclusive ownership of portion of Aniazunor Land of Ogbeowelle Quarters.
Therefore issue 3 is related and flows from ground 5.

In my view, having further amended the Notice of appeal and the brief of argument, it behoves on the Respondent to examine same having not objected to the amendment to honourably withdraw its preliminary objection instead of wasting the time of the Court.

The preliminary objection is therefore dismissed with cost of N200,000 to the Appellant.
I shall now deal with the appeal on its merits.

APPELLANT’S ARGUMENTS
ISSUE 1
The Appellant’s counsel submitted that the plaintiff in a land case whose title to the said land is rooted in deeds of conveyances need not plead or prove the title of his vendor, he relied on AIYEOLA v PEDRO (2014) 44 WRN 1 AT 13; DOSUNMU v JOTO (1987) 2 NSCC 1182; AJIBULU v AJAYI (2004) 11 NWLR (PT 885) 458 AT 474.

Counsel further submitted that the initial sale from Okwukwe Mordi was faulty because the land was communal land hence, he repurchased same from the community by Exhibit C4 and contend that by Exhibit C1, 4 & 5 he has established his root title. He emphasised that the Respondent is a member of the Ogbeowelle quarters; therefore, he was represented at the sale and cannot contend otherwise.

ISSUE 2
The Appellant in the second issue; whether a relief for a declaration of title to land can be granted for failure of the other party to file a defence or on admission of the other party, he contended that a counter claim is a separate independent action for all intent and purposes, he cited ASANIKE v AKINLEYE (2014) 6 WRN 107 124. He further contended that having not filed a statement of defence the Court cannot grant a claim for declaration even on admission, he relied on DIM v ENEMUO (2009) 172 LRCN 206, TUKURU v SABI & ORS (2013) 221 LRCN (PT.1). A declaration of title to land must succeed on the strength of his own case and not the weakness of the defence; ANUKAM v ANUKAM (2008) 27 WRN 1 AT 5; ODU v KODILINYE (2003) 36 WRN 175; BIODE PHARM INDUSTRIES LTD v ADESELL (NIG) LTD 1986) 5 NWLR (PT 46) 1070; CHIEF OGBONNA v A. G. IMO STATE & ORS (1992) 1 NWLR (PT 2200) 647; ASANIKE v AKINYELE (2014) 6 WRN 107 AT 128; ONOBRUCHERE v ESEGINE 1986) 2 SC 14 to the effect that the counter claim must be proved to have a better title.

Appellant canvassed that the Respondent failed to prove a better title and did not show that an individual or family can own a portion of land out of vast expanse of land owned by a community and failure to do this does not vest title in the Respondent, he cited HARUNA v ISAH (2016) ALL FWLR (PT 818) 918. He urged the Court to resolve issue 2 in favour of the Appellant.

ISSUE 3
On whether the Respondent has proven exclusive ownership of this portion of land out of the Aniazunor land, communal land of the Ogbeowelle quarters in dispute, he submitted that the burden rests on the individual or family who claims exclusive ownership. He cited; OBA SAMUEL ADENLE v OYEGBADE (1967) NMLR 136, AKPADIAHA & ANOR v OWO (2001) FWLR (PT. 57) 940.

It is in evidence that the portion contested for is a communal land owned by entire Ogbeowelle quarters, but that he failed to show how his grandfather who was a member of the Ogbeowelle quarters deforested the land out of a communal land owned by the entire Ogbeowelle quarters. He cited ODUKWE v OGUNBIYI 3 SCNJL 607; UDEAKPU EZE v IGILIEGBE (1952) 14 WACA 61; ATUANYA v ONJEKWE (1975) 3 SC 161 AT 167.

ISSUE 4
In respect of issue 4, the Appellant submits that the Respondent in his defence and counterclaim and on records did not prove the existence of any custom and practice of acquisition of portion of communal land and that this is a question of fact to be proven by evidence, he cited;TAIWO v DOSUNMU (1966) NMLR 94; OTOGBOLU v OKELUWA (1981) 6 – 7 Cs99; Section 16 (2) & Section 73 of the Evidence Act, 2011; OLADIMEJI v OGUNLEYE (2012) WRN 50 AT 57. He canvassed that it is proven from witnesses, expert evidence native chiefs. Other persons having special knowledge of native law and customs authors of any book, he relied onOGBULI v OGBULI (2015) 19 WRN 143 AT 149; LEWIS v BANKLOLE (1908) 1 NLR 8; ADEDIBU v ADEWOYIN (1951) 13 WACA 191.

ISSUES 5 & 6
On issues 5 & 6, the Appellant Counsel submits that the judgment is against the weight of evidence, Appellant argued that the decision of the Court is perverse, he cited ABEGUNDE v OSHA (2016) 6 WRN AT 6; IGBIKIS v STATE (2017) ALL FWLR (PT 883) 1405 AT 1416; ATOLAGBE v SHORUN (1985) 1 NWLR (PT 2) 360.

Appellant contends that the lower Court did not consider the evidence led at trial nor principles of law as regard proof but mainly on the facts that the Appellant did not file a defence and occasioned miscarriage of justice.

Furthermore, in issue 6 he argued whether the doctrine of estoppels does not operate to estop the Respondent from laying adverse claim on this parcel of land, he cited ADETORO v UBN PLC (2008) 13 NWLR (PT 1104) 255 AT 304 – 305 PARA E – F; Section 169 of Evidence Act 2011, JOE IGA & ORS v EZIKILE AMAKIRI & ORS (1976) 11 SC 1; 12 – 13.

Appellant argued that it’s in evidence that the Claimant purchased in 2006 the parcel of land from Owukwe Mordi (now late) who then was the chairman of the Ogbeowelle quarters youths while the Defendant was the vice chairman of Ogbeowelle youths. The Respondent was very much aware of the land transaction and admitted this much at trial even the repurchase from the community vide exhibit C4 and never did he challenge the transaction as a family member that it belongs to his family, he is hereby stopped from challenging and laying adverse claim of ownership over this same parcel of land against the claimant.
On the whole, the Appellant urged the Court to allow his appeal.

THE RESPONDENT’S AGRUMENTS.
The Respondent in response having adopted the Appellants issues and on the first submitted on the issue whether a party whose title to a parcel of land is predicated on a title document is expected to prove the title of his vendor that, the Appellant relied on Deed of Conveyance as purchase receipt between him and the quarters and his certificate of Occupancy Exhibit C4 & C5 respectively to prove title to land in dispute. He referred to evidence on record at page 38 – 41 and statement of defence at paragraphs 9 – 24 and submits that the evidence was uncontroverted having not joined issues on it, he is deemed to have admitted title of the Respondent, he referred to CHABASAYA v ANWASI (2010) ALL FWLR (PT 839) (SC); JODI v SALAMI (2009) ALL FWLR (PT. 458) 326.

Respondent submitted that the Appellant did not trace title to Ogbeowelle quarters from whom he claimed to have derived title as its his duty to do, he cited; OGUNLEYE v SAFEJO (2010) ALL FWLR (PT 523) 1889; MOGAJI v CADBURY (NIG) LTD (1985) 2 NWLR (PT.7) 393; ALLI v ALESINLOYE (2000) SCNJ 264, FAYEMI v AWE (2010) ALL FWLR (PT 528) 86 – 88 PARA F – G, DIKE v NZEKA ll (1986) 4 NWLR (PT 24) 144.

He contended that Exhibit C5 cannot help the case of the Appellant because it did not confer interest in property when the vendors/grantors title is defective, he cited BOYE INDUSTRIES LIMITED v SOWEMINO (2010) ALL FWLR (PT. 152) 1462; KYARI v ALKALI (2001) FWLR (PT 60) 1481; AJIBULU v AJAYI (SUPRA)

Respondent counsel argued in the alternative that paragraph 6 of Appellant’s statement on oath did not prove communal ownership but location of land which cannot sustain a declaration for land.

Respondent submits that there is nowhere the Appellant showed by way of pleading and evidence in Court that the Ogbeowelle owns the land and practice.

On issue 2, the Respondent adopted all submission in issue 1 and submitted in addition that evidence of Dw1 is credible reliable and uncontroverted which the Court relied on to grant the Respondent’s counter claim, he relied on ASANIKE v AKINYELE (2014) 6 WRN 107 AT 128.

In addition, he referred to Order 20 Rules 8 of Delta state High Court, 2009 on the filing of a counter claim which is an independent action and requires that a defence

be filed and submits strongly that the failure to file one amounts to an admission, he cited CHABASAYA v ANWASI (2010) ALL FWLR 528 839

Furthermore, he submitted on issue 3 that the Respondent led evidence on exclusive ownership of the land in his evidence by that his father deforested the entire land of 8 plots 100ft x 100ft each by custom, if a man deforest a virgin land not owned by anyone and exercised, continue an exclusive possession and act of ownership, the land becomes vested in him.

That the Respondent acquired it through inheritance and have continued to exercise exclusive ownership through planting of mango, palm trees and cashew nut trees.

That the Respondent has also sold 6 plots to one Friday Okonji out of land now in dispute that all these evidence was not challenged.

On issue 3, the Respondent submitted that he proved exclusive ownership of the portion land out of Aniazunor land, communal land of Ogbeowelle, he referred to evidence and defence and evidence of root title which he said was unchallenged.

Respondent contended that the assertions that the land was communal land are not correct; he submitted that the cases of OBA SAMUEL ADENLE v OYEGBADE and ATUANYA v ONYEJEKWEis not Applicable in the circumstances.

The Respondent submitted in issue 4 that the he has proven the customs and practice allegedly existing in Ogbeowelle quarters, Okpanam as regards acquisition, he disputed that the land is not owned communally by Ogbeowelle and was never stated by him in evidence but was referred to in the location.

He submitted that the evidence on custom was corroborated by Dw1 at paragraph 6 of his statement on oath, he referred to OGBULI v OGBULI (2015) 19 WRN 143 AT 149, LEWIS v BANKOLE (1908) 1 NLR AT 100.

Respondent further submitted on issue 5 while relying on the case of NKWOCHA & ORS v MTN NIG COMM LTD (2008) 11 NWLR (PT 1099) 464, that the Appellant did not point out areas of evidence that was not evaluated or appraised by the Court in arriving at its decision

He affirmed that the lower Court was correct in its conclusion in arriving led evidence that Respondent proved its case, the Appellant did not file a reply and defence to the Respondent counter claim to new weightier issues. Therefore, the Court relied on the facts in the statement of defence and counter claim.

Finally on issue 6, the Respondent submitted that the doctrine of estoppels does not operate to stop him from laying adverse claim on this parcel of land. He referred to cross examination of 11th June, 2013 page 181 lines 13-19 of records that he did nothing because his interest was different, again he submitted that the vendors had alienated their interest and the Appellant had no business filing this action against them, he relied on OGBODU v NKANGINEME & ORS (2010) All FWLR (PT. 503) PG 1034.

The Respondent argued that since he is in possession he is presumed to be the owner by law therefore the doctrine operates against the Appellant, and that the doctrine does not operate against persons in possession. He relied on ADENIRAN v ALAO (2002) FWLR (PT 90) 1285 AT 1304 to the effect that being a special defence same ought to be pleaded with particulars.

REPLY ARGUMENTS
Appellant in reply submitted that there is abundant evidence that the land in dispute forms a portion of land out of Aniazunor land of Ogbeowelle its referred to in C4 at pages 19-23 the statement of oath of Respondent at page 38 – 41 and 173 of written statement on oaths.

He submitted on the allegation of custom and practice of that land corroborated by DW1 as an interested person and not an independent witness because he claimed he has personal land he inherited from his forefathers on the same Aniazunor land, he referred to page 42 of the record.

He canvassed that Dw1 has an interest in the subject matter which is the ownership of Aniazunor land of Ogbeowelle quarters Okpanam to which the Respondent is laying exclusive ownership of the said land and also the DW1 in his evidence claimed having a portion of the said Aniazunor land to himself by way of inheritance from his fathers. He submits that evidence of Dw1 does not and cannot be classified as an evidence of an independent witness as required by law, OGBULI v OGBULI (SUPRA); ADEDIBU v ADEWOYIN (SUPRA).
He urged that the appeal be allowed.

RESOLUTION
The Respondent having adopted the issues formulated by the Appellant in the appeal, it shall be resolved along on the six issues but in the following order; issues 1 (1 & 2), issue 2 (3 & 4), and issue 3 (5 & 6) therefore it shall be based on 3 main issues there from.

ISSUE 1 (1 & 2)
The main crux of issue 1 is; whether a party whose title to a parcel of land is predicated on a title document is expected to prove the title of his vendor?

The facts can be gleaned from the pleadings and exhibits in the record of appeal at page 2 of the record paragraphs 7, 8, 9, 10, 11, 12, 13 & 14 of the statement of claim recounts the facts leading to vesting of title from the elders of Ogbeowelle quarters, Okpanam who acted on behalf of the community through a committee. A conveyance was executed which ratified the earlier sale to the Appellant and this is what the Appellant lays claim to the land in dispute through Exhibit C4 (Deed of Conveyance) as a purchase receipt between Ogbeowelle Quarters of Okpanam and the Claimant (Appellant) and Exhibit C5 (Claimant’s Certificate of Occupancy) to prove his title to the land in dispute at the trial Court.
The Appellant, through the statement on oath of Ogbueshi George Dimma Mordi, a chairman of the land and legal community of Ogbeowelle quarters Okpaman and cross examination at the trial testified and was not shaken that the land belonged to

the community, See paragraphs 2 – 14 of the statement on oath at page 5 – 6 of the record. Most interestingly, the lower Court’s judgment made no reference to this evidence by way of evaluation therefore, the evidence Pw1 cannot be faulted and is credible, only the signature which was explained as a result of age.
See;AIYEOLA v PEDRO (2014) LPELR – 22915 (CA), where it was held thus;
“When a plaintiff in a land case relied on and proves a conveyance as his root of title, he does not need to go beyond his vendor and then proceed to prove that vendor’s title as well. Unless the vendor’s title has become an issue in the case, parties to a land case which titles are rooted in Deeds of Conveyance need not plead or prove the title of their vendors. Dosunmu v. Joto (1987) 2 NSCC 1182 SC.”
per PETER – ODILI, J.S.C (PP. 36 – 37, PARAS. G – A)
See also; ASHIRU v OLUKOYA (2006) LPLER – 580 (SC), where the apex Court held that;
“…where the title of the grantor is in issue, production of documents of title without more is not sufficient proof of title to land since in such a situation, it is the duty of the claimant to go

further to not only plead and trace the root of title of the grantor or vendor but prove same on the balance of probability. Where the claimant fails to discharge this onus his claim must fail.”
per ONNOGHEN, J.S.C (P. 32, PARAS. B – C)
The salient points in the issue of tracing the root of title arises in the area of land listed in the case of OKE v OGIDI & ORS (2017) LPELR – 42396 (CA);
“It is not in doubt, as laid down in the case of Idundun v. Okumagba (supra), that the production of documents of title is one of the five recognized ways by which a Plaintiff may prove ownership of land. Such documents of title must be duly authenticated in that their due execution must be proved unless they are produced from proper custody in circumstances which gives rise to the presumption of due execution in the case of documents which are 20 years old or more at the date of the transaction. See Thompson v Arowolo (2003) 7 NWLR (Pt. 818) p. 126 at 208. However where the Plaintiff relies on and tenders documents of title as his source of title, the Court has the inevitable duty to inquire on the following questions; (a) Whether the document

of title is genuine and valid; (b) Whether it has been duly executed, stamped and registered; (c) Whether the grantor had the authority and capacity to make the grant; (d) Whether in fact the grantor had what he purported to grant; and (e) Whether it has the effect claimed by the holder of the instrument. It therefore means that, the mere production of a document of title, even though valid on its face, will not necessarily carry with it automatic relief by grant of the declaration of title sought. The Court will have to satisfy itself by taking into consideration the above enumerated factors. See Romaine v. Romaine (1992) 4 NWLR (Pt. 238) p. 650; Akinduro v. Alaya (2007) All FWLR (Pt. 381) p.1653 at 1665; Ngene v. Igbo (2000) 4 NWLR (Pt. 651) p.131; Lawson & Anor v. Ajibulu & Ors (1997) 6 NWLR (Pt. 507) p. 14 and Okunowo v. Molajo All FWLR (Pt. 590) p.1386 at 1396-1397. See also Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) p.1.”
per TSAMMANI, J.C.A (PP. 30 – 31, PARAS. D – F)
In this case at hand, the claim of the Appellant to the land and a valid title lies in the evidence of the pw2 who represents a community. One will see from exhibit P4

that the secretary of the youth signed amongst the members of the elders of Ogbeowelle quarters represented by principal main members of the quarters who signed the conveyance and testified to this effect.
Curiously, Pw2 who is over 80 years of age, an elder of the community, chairman of the community committee that negotiated and was one of the representatives of the community was not cross examined by the Respondent as to the extensive claims in his statement on oath, that the Respondent nor his father has no land neither the previous vendor in the quarters nor in the land under dispute and that all lands in the Ogbowelle community belonged to the community and not any individual including himself. The purchase receipt and bank tellers corroborate his claim.
The curious question is, can an individual claim owner ship of a portion of land within the community land? Then it follows that the burden is on him to prove exclusive ownership over the community and not the other way round.
On whom lies the burden of proof where a party leads evidence to the effect that the land in dispute is a communal land?

See; ODUNUKWE v OFOMATA (2010) LPELR – 2250 (SC), the apex Court held that;
“Where an individual or a group claims exclusive ownership of land as against a community’s claim, or is trying to dispossess a group of their claim, the onus is on the party or individual to prove exclusive ownership. Olisa v. Asojo (2002) 1 NWLR Pt.747 pg.73 Akanbi v. Raji (1998) 12 NWLR pt.578 pg.360 Shomefun v. Shade (1999) 12 NWLR pt.632 pg.531.”
per ADEKEYE, J.S.C (P. 46, PARAS. A – C)
The lower Court clearly missed the burden of proof in this circumstance and did not even attribute any relevance to the difference in the title of land, the Ogbewlle community is the vendor and had testified through their chairman Pw2 who emphasised that neither the Respondent nor his father owned any land.
In my view, this was sufficient to nullify the Respondent’s claim but alas, the lower Court put the counter claim before the claim and pushed the evaluation of the main claim to the background while concentrating on the counter claim.
It is trite that the counter claim is a separate claim and cannot exist without a claim.
The lower Court in proceeding to resolve the counter claim dealt

with the substantive suit of the Appellant and held thus;
“The Claimant never traced the root of title of the Ogbeowelle Quarters Okpanam from whom he claimed to have derived his title to the land in dispute. There is no evidence before the Court as to how Ogbeowelle quarters got its title or came to have the title vested in it. As submitted by counsel for the defendant/counter – claimant, PW1, George Mordi the only witness called by the claimant failed to give evidence of how the Claimant Vendor(s) derived their title.
The Court is not unmindful of the fact that a certificate of occupancy – Exhibit C5 was issued to the Claimant in respect of the land in dispute. Trite is the law that ‘to succeed for a Claim of title, a party who hold a certificate of occupancy will need to show its root of title i.e., through his vendor and that the vendor or seller has to show valid title to the land over which the purchaser secured his certificate of occupancy.
…As stated earlier in this Judgment the claimant failed to trace root of title of Ogbeowelle Quarters, Okpanam from whom he claimed to have derived his title to the land in dispute.

The mere production of Exhibit C5 the certificate of Occupancy does not by itself entitle the claimant to the 1st relief sought
…The first issue which is whether the claimant is not entitled to the reliefs sought before this Honourable Court is answered in the negative and resolved against the claimant.
In the final analysis, the reliefs sought by the claimant fail and they are hereby dismissed ”
In OJENGBEDE v ESAN & ANOR (2001) LPELR – 2372 (SC) the apex Court held that:
“The principle of law is settled established that where a plaintiff, as in the present case leads evidence to the effect that a land in dispute is communal, the onus is squarely on the defendant who claims ownership therefore to establish that the land belongs to him exclusively. See UDEAKPU EZE V IGLIEGBE AND ORS 1952 14 WACA 61, ATUAYA V ONYEJEKWE (1975) 3 SC 161 AT 167”
per IGUH J.S.C. (P. 22, PARA A – B)
See also; NWAVU & ORS v OKOYE & ORS 2008 LPELR -2116 (SC); OLODO & ORS v JOSIAH & ORS (2010) LPELR – 2584(SC).

To the effect that he who claims exclusively must prove that there has been a partition of the land claimed, and how his claimed portion which is clearly inside the area said to be the Ogbeowelle community land was excised and belonged exclusively to him.
The Respondent was once a vice president of the youth of Ogbeowelle quarters, the youth secretary is a signatory to the conveyance to the Appellant therefore, he cannot claim ignorance.
The Respondent is part and parcel of the Ogbeowelle quarters and one of those represented by the committee, it therefore behoves on him to show how he is exclusively entitled above them. The pw2 testified under cross-examination at page 170 by the Respondent, he stated thus;
“I am from Ogbeowelle ….it’s not true that the place I am living at Ogbeowlle quarters was inherited from my forefathers, but from Ogbeowelle quarters. My fore fathers belong to Ogbeowelle quarters. I was the first to build a house there, it was virgin and I deforested the place ….
Therefore, it follows that deforesting a virgin land does not automatically vest title on an individual in Ogbeowelle community.

I take cognisance of the age of the witness and relevance in his position and accept that as he states his fore fathers were from Ogbeowelle and took land from there. This has proved the firm tradition of Ogbeowelle quarters and in my view supersedes the Respondent’s history, and has proved the title of the vendors.
This is a traditional history evidence of custom of the quarters and this was not contradicted nor did the Respondent call quality evidence of this custom only the evidence of an adjoining land within the same community, these witnesses are not senior to Pw2 whose position in the community (unlike DW2) has been established and how it relates to the communal land, if different.
The location of the land was clearly described in the recital part of the Deed of conveyance thus;
(i) The parcel of land herein conveyed measuring approximately 1673.130 square meters in size, which said land purpose of identification only is more particularly shown, described and verged RED on the Survey Plan No. JAC/DT/266/2006, known, being, lying and situate at Aniazunor Land of Ogbeowele Quarters, Okpanam Town, forms part of a large tract of land owned by THE OGBEOWELE QUARTERS of Okpanam Town, in Oshimili North Local Government Area, Delta State Nigeria. (Underlining mine)
See pages 19 – 20 of the Record.

See also paragraph 6 of the Statement of Oath of the Appellant and paragraph 23 of the Defendant statement of Defence and Counter claim at pages 60 & 35 of the record.
From the above reproduced portion of the deed, and the claim of Appellant coupled with the statement on oath of Pw2, it is clear that the contention is that the disputed portion is a communal land and all steps were taken to ratify the earlier wrongful sale and connect to the proper body vested with the power of sale which is the committee.

The land in dispute is at Anaizunor Land of Ogbeowele Quarters; Okpanam Town which is owned by the Ogbeowele quarters of Okpanam Town and this land is described and identified by a Survey Plan No. JAC/DT/226/2006 this is agreed by both parties including the vendors of the Appellant.

It is also important to note that the Vendor of the land in dispute are the Elders of Ogbeowole Quarters, Okpanam, Oshimili North Local Government Area of Delta State and these Elders were not stated vaguely in the deed, the principal members of the Quarters were enlisted in

the deed thus;
1. Venerable (Dr.) P. E. I Nwabuoku, The Diokpa Isi of Ogbeowele
2. Ogbueshi George Dimma Mordi, Chairman of Ogbeowele Land and Legal Committee;
3. Mr. Joseph Chukwujindi Ujukwu, Secretary General of Ogbeowele Quarters,
4. Mr. Jeffrey Sunday Mordi, Secretary of Ogbeowele Youths.
These are principal members in their office and they represent the Ogbeowele community.

In answer to issue 2, whether failure to file defence amounts to an admission, I am afraid it cannot be under the circumstances, the claims in a land dispute are declaratory and the state of the pleadings are such that there was nothing more to add see; UDOH v OHMB (1990) 4 NNLR PT 142 52.
A look at the defence and counter claim merely reinstates the defence, nothing new was added, it was a matter of evidence, and material facts had been stated in the pleadings.
In OLOHUNDE v ADEYOJU & ORS (2000) LPELR – 2586 (SC) it was held thus;
“The law is well settled that where the evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the

case to act on such unchallenged evidence before it. See Isaac Omoregbe v. Daniel Lawani (1980) 3 – 4 SC 108 at 117, Odulaja v. Haddad (1973) 11 SC 357, Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 at 81, Abel Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 322, (1961) All NLR 917.”
per IGUH, J.S.C (P. 33, PARAS. C – D)
On the attitude of Courts to whether a declaratory judgment can be granted based on admission, the Court in NWOKEDIASO v ONUORAH (2000) LPELR – 12004 (CA) held thus;
“It must be noted that the position of things in relation to whether or not a declaratory judgment can be granted on admission by a party or in default of pleadings, appears fluid. Some decades ago, judgments used to be entered in declaratory matters on default of pleadings. Refer to Ogunleye v. Arewa (1960) WRNLR (Pt.1) 9, Babajide v. Aisa (1966) 1 All NLR 254. It occurs to me that from a plethora of recent authorities, Courts have shifted the ground. They insist on evidence before a judgment shall be given in a case for declaration. In Wallersteiner v. Morie supra at page 251, Buckley, LJ., said- “It has always been my

experience and I believe it to be a practice of long standing that the Court does not make declarations of right either on admission or in default of pleadings but only if the Court was satisfied by evidence.” Such is in consonance with reason as declaratory judgments basically have to do with discretion. And such discretion should be rooted in considered evidence. In Alhaji Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) 90; (1988) 12 SCNJ 166 at p. 177 the Supreme Court insisted that in a case of declaration, since the grant of declaratory relief is within the discretion of the Court, the plaintiff to succeed must give evidence of his entitlement to the declaration and could not rely on admission in the pleadings. This has been the trend. Refer to Lewis Peat (NR.) Ltd v. Akhimien (1976) 7 SC, 157; Bello v. Eweka (1981) 1 S.C. 101, Ogbonna v. A.G. Imo State (1992) 1 NWLR (Pt.220) 647; Faponle v. University of Ilorin Teaching Hospital Board of Management (1991) 4 NWLR (Pt.183) 52. In this case, it was pronounced with certainty by Ogundare J.S.C. that a declaratory judgment can only be given where the justice of the case warrants it having regard to the pleadings

and evidence led in proof by the plaintiff in which he discharged the onus of proof on him under Section 136 of the Evidence Act. To make assurance doubly sure, I must still refer to Nigeria Airways v. Ahmadu supra, Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254 and Salu v. Egeibon(1994) 6 NWLR (Pt.348) 23, as well as Mortune v. Balonwu & Anor. (2000) 5 NWLR (Pt.655) 87 at 121; 128. It is clear from the above analysis that the declaratory judgment awarded to the plaintiff by the Trial Court without any iota of evidence missed the target. And, as such, the judgment was entered to no avail. It cannot stand in the prevailing circumstance.”
per FABIYI, J.S.C (PP. 13 – 15, PARAS. D – E).
See also; DONGARI & ORS v SA’ANUN (2013) LPELR – 22084 (CA); AKINBONI & ORS v AKINTOPE & ORS (2016) LPELR – 40184 (CA); SANNI & ORS v HUGHES & ANOR (1999) LPELR – 13190 (CA).

In the light of the above, the failure to file a reply under the circumstances of the subject matter does not amount to an admission.
I resolve issue 1 (1& 2) in favour of Appellant.

ISSUE 2 (3 & 4)
This issue is whether the Respondent has proven exclusive ownership of the land and whether the traditions and customs of Ogbeowelle has been proved as regards acquisition of land as to entitle him to the judgment.

The Respondent in his defence and Counter claim to the Appellant stated, paragraphs 9, 13, 14, 15, 19, 20 & 22 thus;
“9. The defendant avers many years ago, now beyond human memory, the defendant grandfather, Eluaka Nwokolie deforested the entire land measuring about 8 plots of 100ft x 100ft each, the land in dispute inclusive. The defendant grandfather farmed on the land, set traps therein and hunted animals thereon for more than 80 years without any form of encumbrance. At that material time, the custom of Okpanam was that if a man deforested virgin land not hitherto owned by anyone, and exercised continuous and act of ownership over it for a long period, he acquire title thereto which is transmibble to his sons on his death.
13. The defendant avers that on the death of his grandfather, Late Eluaka Nwokolie, the defendant father Afoeli Nwokolie inherited the land from his father in exercise of continuous act of possession by the defendant father, he has been harvesting

these economic trees without let or hindrance from anybody, including the defendant community Ogbeowelle. Some of these trees has been fell by the defendant as a result of sale of the adjoining land by the defendant. The defendant had sold about 6 plots of adjourning land to one Mr. Friday Okonji.
14. The defendant avers that as a result of the death of his father, Late Afoeli Nwokolie, the defendant became seized of about 8 plots of land which include the land now in dispute. The defendant avers that he also share boundary with idowu Nwefeh and Otua Onyeka, the defendant at the trial of the suit shall lead evidence to show that Idowu Nwefeh and Otua Onyeka, defendant boundary neighbour got their title by inheritance from their family share. Mr. Idowu Nwefeh and Mr. Otua Onyeka had also been engaged by the defendant Late father to work in his farm as a labourer in the land now in dispute.
15. The land sold by the defendant share boundary with the land now in dispute. The defendant shall lead evidence to show that the person the defendant sold to had been in active and peaceful possession without interruption from anybody including the community. The

defendant hereby plead and shall rely on a deed of conveyance executed between him and his purchaser.
19. The defendant avers that the land now in dispute is the defendant family inheritance, hence the community had nothing to sell or ratify as at the time the deed of conveyance was executed between the Claimant and purported representatives, of the community.
20. In denial to paragraphs 11 and 12 of the claimant statement of claim, the defendant avers that no money was paid into the Ogbe’s account for the use or benefits of the community as the community had nothing to convey as at the time the deed of conveyance was executed between the claimant and purported representative of the community. In further denial to paragraphs 11 and 12 of the Claimant statement of claim, defendant repeats it paragraphs 2 – 19 of statement of defence.
22. In denial to paragraph 14 of the claimant statement of claim, the defendant avers that the persons that represented the community had no authority to do so and infact not the accredited representations of the community as they were acting on their personal capacity.
See pages 33 – 35 of the Record.

It is trite that he who asserts must prove. See; Section 131 (1) of the EVIDENCE ACT; DASUKI v FRN & ORS (2018) LPELR – 43897 (SC).
In OYEDELE & ANOR v JIMOH (2012) LPELR – 8536 (CA), this Court held thus;
“The rule is always that he who asserts must prove. See Section 135 of the Evidence Act, and the case of Ogundepo vs. Olumesan (2012) 5 NWLR1 held 3; Okubule v. Oyagbola (1990) 4 NWLR (pt. 147) 723. See also Eyo vs. Onuoha (2011) 39 WRN 1, held 4, where the Supreme Court said: “It is also trite that he who asserts must prove, for without the cogent and credible evidence of the party asserting, he will not succeed in his suit and obtain judgment in his favour. See Section 135 of the Evidence Act, Cap.112, Laws of the Federations of Nigeria 1990; Imana vs. Robinson (1979) 3-4 SC 1; (1979) 12 NSCC 1; 1979 1 ALL NLR 1 and Archibong vs. Ita (2004) 13 WRN; (2004) 2 NWLR (Pt.858) 590.”
per MBABA, J.C.A (P. 44, PARAS. B – F)
The Respondent has pleaded and asserted that the portions of land belongs to him exclusively in fact he testified that he sold 6 plots to another person without any challenge from anybody till

date nor the Ogbeowelle community. He disputes the land in issue which is 1673.130 sq. metres which he says is 100ft x 200ft. There is the clear contention that the land of 1673. 30 sq. metres is within the Ogbeowelle community land and does not belong to any individual, but the Respondent gave a history of inheritance, he claims he inherited it from his father. It is not disputed that the land is well within the ANIAZUNOR, OGBEOWELLE; see evidence of Respondent, at page 179 of record.
As observed in the previous resolution in issue 1 & 2, the Respondent did not say how the land became exclusive in the middle of the communal land.
It is for him to prove and this can only be proved by use of a survey plan to be able to identify the lands and portions showing adjoining lands and the communal land to prove his claim, this he has failed to do.
Furthermore, the counterclaim repeats the statement of defence and it is an independent action from the plaintiff’s claim, therefore seeking declaratory reliefs, he has to prove his title, extent of the land, location of the land, see; DADA v DOSUNMU (2006) LPELR -909 (SC).

In addition, the Respondent denied the authority of the persons that represented the community and their representative capacity in paragraph 12 of the statement of defence/counter claim without more, the Respondent failed to cross examine the pw2 on the claims of his ownership, this was fatal to his claim as the pw2 represented the community of which he is one, he has not shown a different community and the elders of his community if any.

Upon the above, the lower Court held that the evidence was of the defendant and his witness was unchallenged and uncontradicted, the Court accepted and acted on it.

The lower Court in this vain did not evaluate the evidence of the Respondent vis-a-vis his claims and this occasioned a miscarriage of justice.

On whether the Respondent has been able to show how his grandfather deforested the particular portions of land out of the Aniazunor land of the Ogbeowelle quarters? See OLODO v JOSIAH & ORS (2010) LPELR – 2584 (SC), where it held thus;
“Where the land in dispute is deemed to be a communal property – the onus is on the party who asserts that the communal property belongs to him to show how

exclusive ownership devolved on him. A party, who claims exclusive title to communal or family land against the entire family or community, must cogently prove that there had been a partition of the land claimed. Adesanya v Otuewu (1993) 1 NWLR pt. 270 pg 414 Ajuwon v Akanni (1993) 9 NWLR pt. 316 pg. 182 Bamgbose v Oshoko (1988) 2 NWLR pt. 78 pg. 509”
per ADEKEYE, J.S.C. (P. 40, PARAS. E – G).
Also in; ADEDOKUN v ADEJUMO & ORS (2017) LPELR – 42380 (CA), where this honourable Court held thus;
“The case again brings to fire one essential characteristic of family land and the nature of customary law associated with it. Family land implies that title to such land is vested in the family. From this underlying fact has evolved a presumption of ownership in favour of family ownership has been extinguished by for example partition the onus is always on such individual to satisfactory establish acts that severed family ownership and vested the property in the individual. See Eze vs. Igililegbe (1952) 14 WACA 61. The onus on an individual claimant is a herculean but not insurmountable. In this case the trial Court believed that

onus was not discharged. See Adenle vs. Oyegbade (1967) NBJ 69 where it was held that in a claim for declaration of title to land accepted by both parties as being originally family land, the onus lies on the party who claims that he is exclusively entitled to the property to establish his claim.”
per OKORONKWO, J.C.A. (PP. 16 – 17, PARAS. B – A)
See also; NWAVU & ORS v OKOYE & ORS (2008) LPELR – 2116 (SC); OKE v OGIDI & ORS (2017) LPELR – 4296 (SC); SARKI v LAMELA (2018) LPELR – 40338 (CA).
From the above cited cases, it is expedient that the Respondent had the burden of proving that his family can exert exclusive ownership over a portion of a communal land, this against the evidence of pw2 that the Respondent nor his father owned land exclusively above the Ogbeowelle community.
The nagging question that needs to be answered here is whether the Respondent has been able to discharge that burden on him?
The Respondent in discharging this duty submitted in paragraphs 10 – 16 of his statement on oath;

“10. I become entitle to the land now in dispute from my Late Father

Afoeli Nwokolie. Many years ago, now beyond human memory, my grandfather, Late Eluaka Nwokolie deforested the entire land measuring about 8 plots of 100ft x 100ft each, the land in dispute inclusive. My grandfather farmed on the land, set traps therein and also hunted animals thereon for more than 80 years without any form of encumbrance
11. At that material time, the custom of Okpanam and Ogbeowelle was that if a man deforested a virgin land not hitherto owned by anyone and exercised continuous and exclusive possession and act of ownership over it for a long period, he acquires title thereto which is transmissible to his sons on his death.
12. My grandfather, late Eluaka Nwokolie had three children before his death. The three children are solokoto, iwedunor and Afoeli my late father. Solokoto and Iwedunor died without living an issue, thereby leaving the entire property of my Late grandfather, Late Eluaka to my Late father, Late Afoeli Nwokolie as the only surviving son.
13. My Late father, Late Afoeli Nwokolie in his life time gave birth to 2 girls and a boy. I am the only son of my father hence the 8 plots of land inclusive of the one now in

dispute became my family inheritance
14. My grandfather, in exercise of his right of ownership and exclusive possession planted palm trees, teak trees, bread fruit, (Ukwa) gmelina trees, mangoes and cashew nut trees on his entire land.
15. On the death of my grandfather, Late Eluaka Nwokolie my father inherited the land. In exercise of continuous act of possession, my father, Late Afoeli had been harvesting these economics trees without let or hindrance from anybody, including my community, Ogbeowelle. I have fell some trees because I have sold about six (6) plots to one Friday Okonji. The plots I sold to Friday Okonji Adjourn/share boundary with the land now in dispute.
16. As a result of the death of my father, I became seized of about 8 plots of land which include the land now in dispute. My boundary neighbours are one Idowu Nwefeh and Olua Onyeka. About fifteen (15) years ago, my Late father Afoeli Nwokolie had also engaged the service of the said Otua Onyeke to work as labourers in the robber plantation situate in the land now in dispute.(Underlining Mine).
See pages 39 – 40 of the Record.

From the above pleadings of the Respondent, he is not averring that the land in dispute is part of the large expanse of Ogbeowelle Community land but his rather pleading that it is his family land that is only just situated in Ogbeowelle quarters.
He further pleaded that it is the Custom of the people of Ogbeowelle community to acquire ownership of a virgin land upon deforestation and exclusive possession over a period of time.
In AMEH & ANOR v SULEIMAN & ORS (2018) LPELR – 46543 (CA);
“The Evidence Act 2011 stipulates with regards to proof of the native law and custom operational in any given place, the following: SECTION 16 1. A custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence. 2. The burden of proving a custom shall lie upon the person alleging its existence. SECTION 17 A custom may be judicially noticed when it has been adjudicated upon once by a superior Court of record. SECTION 18 1. Where a custom cannot be established as one judicially noticed, it shall be proved as a fact. 2. Where the existence or the nature of a custom applicable to given

case in issue, there may be given in evidence the options of persons who would be likely to know of its existence in accordance with Section 73. 3. In any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy, or is not in accordance with natural justice, equity and good conscience. SECTION 73 1. When the Court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed are admissible. 2. The expression “general custom or right” includes customs or rights common to any considerable class of persons.? Interpreting these requirements of the Evidence Act, the Supreme Court, in Oyewunmi v. Ogunesan (1990) 3 NWLR Part 137 Page 182, held at Page 215 – 216 Para F – A per Karibi – Whyte J.S.C., as follows: “The locus classicus case for the ascertainment of Customary law and subsequently of judicial notice is the Judicial Committee of the Privy Council decision of Kobina Angu v. Allah P. C. 74 – 28, 43.

There, the formula for the ascertainment of native law and custom was stated to be as follow – “As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs, by frequent proof in the Courts, have become so notorious that the Courts will take judicial notice of them.” According to Angu v Allah, the two tests are in the alternative. They are (a) Calling witnesses acquainted with the custom in the Courts. (b) when by frequent proof in the Courts. (b) when by frequent proof in the Courts the particular custom becomes notorious. In respect of (a) proof of the customary law will depend on the witnesses called. But in (b) by frequent proof in other cases the Court will take judicial notice of the custom as having been established where it arises for proof, in the case before, it, and no more proof will be required.”
per ADEFOPE – OKOJIE, J.C.A. (PP. 15 – 17, PARAS. D – F)
See also; OLUBEKO v AWOLAJA & ANOR (2017) LPELR – 41854 (CA); FALAKI & ORS v FAGBUYIRO & ORS (2015) LPELR – 25848 (CA);

NWABUDE & ANOR v UGODU & ORS (2011) LPELR – 9173 (CA); OGBULI v OGBULI (SUPRA); ADEDIBU v ADEWOYIN (SUPRA).

The Respondent at the lower Court relied on the testimony of one Idowu Nwefeh (DW1) as an independent witness to corroborate his evidence as to the custom of Ogbeowelle quarters of Okpanam on individual ownership of a portion of Land out of the entire large parcels of Land known as Aniazunor land of Ogbeowelle quarters of Okpanam, who in his statement on oath, paragraphs 3 – 10 stated thus;
“3. That the Defendant is from Ogbeowelle quarters, Okpanam, same quarter with me.
4. That I also know the land in dispute. The land in dispute is situate at Ogbeowelle quarters of Okpanam. The land is called Aniazunor. It measures about 100ft x 200ft the land now in dispute is owned by the defendant and not Ogbeowelle Community nor the claimant. The land is owned by the family of the defendant.
5. My land shares boundary with the land in dispute. I got title to my land when my family (Nwefeh family) partitioned our family land to Adult Male members of my family.
6. That the native law and custom of Okpanam was

that if a man deforested a virgin land not hitherto owned by anybody and exercise continuous and exclusive possession and act of ownership over it for a long period he acquires title thereto which is transmissible to his sons on his death.
7. The land my family now live and farm is owned by my family, by virtue of the facts that my great – grandfather deforested it.
8. That well over fourteen years ago. Commencing from 1986, the claimant father Late Afoeli Nwokolie had regularly engaged my services as a Labourer to work in his farms at various portion of his land at Aniazunor, Ogbeowelle wherein the land in dispute is located.
9.That I witnessed the harvest of such economics trees as cashew – nuts, bread fruit trees, etc., on part of the land owned by the defendant and I sometimes took part in such harvesting in return for my daily salary.
10. That I am aware that the Defendant father, Late Afoeli Mwokolie owned about 8 plots of land sharing boundary with my family land, which part of is now in dispute. The defendant to the best of my knowledge has been in possession of the entire 8 plots of land.
See pages 42 – 43 of the Record.

Mr. Idowu Nwefeh is supposedly a boundary neighbour of the Respondent in the disputed land. The Respondent also tendered during trial the deed of his sale of 6 plots of land from the 8 plots of land that was purportedly deforested by his great grandfather and the land in dispute forming part of same. He claims that he sold these six plots to one Friday Okonji and the deed was tendered as purchase receipt.

Dw1 did not state which quarters he belonged to and how long he has been living in the community, neither did he state he was well versed in the customs and tradition on acquisition of land in Ogbeowelle quarters, he cannot be an independent person since he claimed he shares boundary with the Respondent and works as a causal labourer for them, he claims he also inherited land in ANIANZUNOR LAND, he is an interested person more like a family friend, therefore he does not qualify to testify on customs and traditions of the land.
Customs and traditions are customary law of a place and the law is settled on the kind of proof of prevalence of customs and practices, experts or opinion experts in the content of customary law refers to

Native chiefs, persons having special knowledge of such and recognized materials recognized by the people of the community as a legal authority. Dw1 does not fall into any of these categories; therefore his evidence ought to have been rejected.
Flowing from the above, it does not answer the nagging poser as to where exactly the land adjoins, the land of the Respondent or his witness are definitely islands on their own against the contention that the spans of land belongs to the community and the clear evidence of traditional acquisition of land in the community. His evidence is not reliable on this issue, the lower Court ought to have subjected his evidence to test and not relied heavily on his testimony.
There was undisputed evidence from pw2 that the land was not inherited or owned by deforestation, he is a chief bearing the title of Ogbueshi meaning an Elder, he was over 75 years and testified on the customs that he lives there, built a house but got his land from the Ogbeowelle community even if he deforested the land, likewise his father and fore-fathers, meaning, land in that area was managed by the community, from time immemorial, of which members were drawn from the community representing even the youths, see; Exhibit C4.

Hence, the need to renegotiate with the elders of the land when the Appellant realized that the sale was by a wrong vendor, lands was vested in the committee. His evidence qualifies as a native elder chief.
I take judicial notice of communal land ownership and management by committees representing the committee in the area of Asaba to rid land grabbers and move the town forward as incidents of legal issues of multiple sale of land consumed the entire land.
In his evidence under cross examination, the Respondent agreed that if any Ogbeowelle person sells another Ogbeowelle land you go to the community and summon the person; “I did not do anything because I knew I was in possession of my land….’’
The Respondent therefore admitted the role of the community and this contradicts the exclusive ownership theory he wants the Court to believe.
In my view, the Respondent has failed to prove the customs and traditions of the Ogbeowelle quarters by credible experts or elders from the community versed in the customs and traditions as regards

acquisition of land, he therefore has not followed laid down guidelines in AMEH v SULIEMEN (SUPRA) and a host of cases.

The lower Court did not subject the evidence to the test on tradition and customs and therefore fell into error in accepting the evidence as proof of title of the Respondent.
I resolve issues 2 (3 & 4) in favour of the Appellant.

ISSUE 3 (5 & 6)
In issue 5 of the appeal, the Appellant’s contention is that the lower Court judgment is against the weight of evidence on record.

From the nature of this case at the lower Court, the case had a main suit and the Counter claim of the Respondent/Defendant.
It is a trite principle of law that a counter claim is a separate and independent suit from a main suit. See; SAIDU HASSAN v ALH. IBRAHIM BUNU & ANOR (2019) LPELR – 47746 (CA).
A Court is therefore saddled with the responsibility of resolving two separate and independent suits in a case that has the Plaintiff’s claim and a counter claim.
The lower Court in its judgment at page 144 of the record held;
“it is obvious that the defendant/counterclaim challenged the title of Ogbeowelle by putting same in issue.”

At page 145 the lower Court went on to hold;
“…In the instant case, the claimant admitted all the averments in the defendant‘s pleadings. He also admitted all the evidence of acts of ownership and possession, by his failure to file his reply to the statement of claim and contradict the evidence of the defendant/counterclaim and his witness DW1. …”
It is clear from the above observations in the issues above that the Court failed to consider the basis of the Appellant’s claim that after the first sale he had to go to the Elders on being reliably informed that all the land in that area including the disputed one was community land and handled by the committee. This undisputedly ought to have put the Court on notice that the disputed land must be shown to be outside the area with reliable surveys and not word of mouth to demonstrate the extent and exclusive portion which the Defendant claimed to be within but outside while the Appellant claimed through pw1 that it was vested in Ogbellowelle community of which the Respondent is a member.

The principle remains iron cast that burden lies on he who asserts that his portion is outside communal land, this the lower Court did not consider and therefore fell into error, he based his decision largely on the failure to file reply and defence and summarily found the evidence not proved.
The counter claim, though a separate claim for declaratory reliefs to the disputed land, the burden remains the same it does not dwell on admission but due proof that he is entitled to the land .
Therefore, I agree that the lower Court cannot grant the reliefs of declarations on failure to file reply and defence or on admission of the other party.
The judgment therefore is against the weight of evidence, as it did not utilize the evidence, the lower Court more or less relied heavily on the general principles in civil cases that the failure to file reply and defence was fatal to the declaratory claim for title of land and amounted to the admission of the counter claim and thereby occasioned a miscarriage of justice.

On whether the doctrine of estoppels does not operate to estop the Respondent from laying adverse claim on this parcel of land?

The Respondent/Defendant at the lower Court during cross examination admitted thus;
“…when this incident happened I was the vice – chairman of Ogbeowelle youth. In functions as the vice chairman include calling the youths to come and bury somebody die, my function to unite all the youths together to attend any general meeting. We also collect money for development levy. I am not aware that the claimant paid development levy to the youth association….The defendant are to meet me with his friend Dr. J. B. I never chased anybody. When he came with his friend, they begged to give me N1m but I told them no because there was existing structure on the land and but they went to the boy that sold to the claimant and they were told that their family had no land there,
See pages 179 -181 of the Record.

It is a trite principle of law that a party relying on the defence of laches and acquiescence must be specifically plead same.
In MR. TAJUDEEN SANNI – OMOTOSHO v DR. T.K OBIDAIRO (2014) LPELR – 23006 (CA), this honourable Court held thus;
“a party relying on an equitable defence must plead same. The Appellant did not

properly plead the defence of laches and acquiescence in his statement of Defence. Consequently the Appellant is precluded from relying on the said equitable defences. In the case of Adeniran v Alao (2001) 12 S. C (Pt. 2) 59 at 73 paras 5 – 29, the Supreme Court considered the applicability of equitable defence and stated as follows: “In actual fact and as a matter of practice, the respondents did not, in conformity with pleading procedure, raise those defences in their statement of defence…”
See also; NWAETUK v NWAETUK & ANOR (2015) LPELR – 40312 (CA); MOORE & ORS v OKAFOR & ANOR (2014) LPELR – 24339 (CA); AKOBI v OSADEBE (2014) LPELR – 22655 (CA).

Flowing from the above, therefore the Appellant did not specifically plead the defence of estoppel against the Respondent in his Amended statement of claim; to raise it is not the intendment of the law even though there is evidence that there was complicity on Respondent’s part.
I therefore resolve issue 3 partly in favour of the Respondent.

Having resolved all issues (except issues 6) herein against the Appellant, this appeal partly succeeds and is allowed.
The resolution of issue 6 in favour of the Appellant does not affect the appeal and does not save the judgment. Therefore, the judgment of the High Court of Delta State, Akwukwu – Igbo Judicial division coram Justice H. O Akpotowho (J) delivered on the 27th day of February, 2015 is hereby set aside, and judgment is hereby entered in favour of the claims of Appellant in the lower Court.

The claims are hereunder reproduced for clarity;
1. A declaration that the claimant is entitled to the statutory right of occupancy of all that piece/parcel of land, measuring approximately 1673:80 square meters property of Chike Iwoba, lying, being and situate at Aniaunor land of Ogbeowelle Quarters, Okpanam Town, Oshimili North Local Government Area of Delta State of Nigeria.
2. Five Million Naira (N5,000,000.00) as a specified sum of damages for trespass into the land.
3. An interlocutory injunction restraining the Defendant, their agents, privies representatives in interest and whoever that claims under or through them from trespassing, selling and mortgaging on the said land in dispute.
4. Perpetual injunction restraining the

Defendants, their agents, privies representatives in interest and whoever that claims under or through them from trespassing.
Cost of N250,000 is awarded against the Respondent.

MOHAMMED AMBI – USI DANJUMA, J.C.A.: I have read in draft before now and agree that the lead judgment by my brother, ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. should be supported. I endorse same.

However, the order made in limine for a cost of N200,000 upon the dismissal of the preliminary objection is not, in my view justified. Had the decision ended by dismissal or striking out of the preliminary objection, me think justification could be surmised as that had signaled the end of the litigation or proceedings and which may he followed by a consequential order for costs in indemnity.

In this instance, the matter having proceeded to hearing and resolution on its merit and a consequential costs. I think the earlier award of costs was imposed based on wrong principle of law to wit; as punitive measure.

The claim of the Plaintiff/Appellant herein was in its treatment by the trial Court subordinated and subjugated to the Defendant’s counter claim.

This had clearly led to a perverse decision, the Plaintiffs now Appellants had testified to communal character of the land in dispute. The Defendant/Respondents who asserted and testified to ownership of a portion thereof which they claimed was part of the communal or community land did not show the Appellants had been divested of the portion in dispute which counter claimed by them (the Respondents). See EZE V. IGLIEBE & ORS. (1952) 14 WACA 61; ATUANYA VS. ONYEJEKWE (1975} 3 SC 161 AT 167; OLODO V. JOSIAH & ORS. (2010) LPELR-2584 (SC).
There can be no judgment for declaratory relief without evidence. See WELLEISTER V. MOIR.
There was no evidence led grounding the declaratory reliefs granted for the counter claim.

On the preponderance of relevant and admissible evidence, the Appellant’s case preponderated over the defendants/Respondents’ case and was, in my view, wrongly disregarded at the trial Court.
The reversal of the judgment is endorsed, by me.

JOSEPH EYO EKANEM, J.C.A.: I read before now the lead judgment of my learned brother, ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. which has just been delivered. I agree with the reasoning and conclusion therein that the appeal has merit.

I will only add a few words of mine to underline my agreement. A counter-claim is not merely a defence to the claim of the plaintiff; it is an independent action. The defendant in the counter-claim assumes the position of a plaintiff and the plaintiff in the original action assumes the position of the defendant in the counter-claim. The counter claimant has the onus of establishing his case just as he would if he were the original plaintiff. See OGBONNA v. ATTORNEY-GENERAL OF IMO STATE (1992) 1 NWLR (PT. 220) 647 and ATIBA IYALAMU SAVINGS AND LOANS LTD v. SUBERU (2018) 13 NWLR (PT. 1637) 387.
The mere fact that a defendant to a counter claim failed to file a reply and defence to the counter-claim does not automatically mean that the counter-claim will succeed. This is so if the counter-claim is so inextricably tied up with the main claim that the success of the main claim will mean the failure of the counter-claim. See UNOKAN ENTERPRISE LTD v. OMUVWIE (2005) 1 NWLR (PT. 907) 293. 315 – 316. The instant matter falls into this category.

The respondent in his counter-claim claim for declaration of entitlement to statutory right of occupancy. Courts do not make declarations of right either on admission or default of pleading but only on satisfactory evidence – WALLERSTEINER v. MOIR (1974) 3 ALL E.R. 493 and TUKURU v. SABI (2013) 10 NWLR (PT. 1363) 442. The trial Court was therefore wrong in giving judgment for the respondent who did not lead satisfactory evidence though appellant did not file a reply and defence to the counter-claim.
The evidence on record leads to the conclusion that the land in dispute is communal property. The respondent did not lead satisfactory evidence to show how the family property of Ogbeowelle quarters of Okponam community became his personal property. Judgment therefore ought to have been entered in favour of the appellant and respondent’s counter-claim should have been dismissed.

For these reasons and the more comprehensive ones marshaled in the judgment of my learned brother, I also allow the appeal. I abide by the consequential orders made in the lead judgment.

Appearances:

C. Agbata with him, V. O. Iwoba (Mrs.) For Appellant(s)

Ekwe Muka For Respondent(s)