OJOBOR v. OVEGHENI & ANOR (2021)

OJOBOR v. OVEGHENI & ANOR

(2021)LCN/15500(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Monday, March 15, 2021

CA/AS/459/2016

RATIO

TRESPASS: CONSIDERATIONS TO DETERMINE THE ENTITLEMENT OF A TRESPASSER TO AN AWARD OF DAMAGES

It is a settled principle of law that once an act of trespass is established, the trespasser is liable to damages. In OLAGBENI v OYEWUSI & ORS (2013) LPELR – 20363 (CA) it was held that:
“On the award of damages, it is the law that a party would be entitled to award of damages, if such party in this case proves ownership of the land in dispute and exclusive possession of same.”
Per UWA, JCA (P. 36, PARA E).
See also OGAH & ANOR v GIDADO & ORS (2013) LPELR – 20298; AKAOLISA v AKAOLISA (2014) LPELR – 24148 (CA); ODIONG v ASST. IGP (2013) LPELR – 20698 (CA). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

DOCUMENTARY EVIDENCE: POSITION OF THE LAW AS REGARDS THE ADMISSIBILITY OF AN UNREGISTERED REGISTERABLE INSTRUMENT

In OMOTOSHO v BANK OF THE NORTH LTD & ANOR (2006) LPELR – 7580 (CA), this Court held on the position of the law as regards the admissibility of an unregistered registerable instrument thus;
“Be that as it may, it is relevant to point out that a deed of legal mortgage is a land instrument which ought to be stamped and registered to make it admissible in evidence as proof of legal title. See Usman v Kareem (1995) 2 NWLR (PT. 379) Page 537. However, while an unregistered land instrument is inadmissible to prove title, it is admissible to prove purchase and can be utilized as a purchase receipt. Thus it is admissible to prove equitable interest only. See Thomas Awogbo v Chukwu Eze (1995) 1 NWLR (Pt. 372) Pg. 393.
per OGUNWUMIJU, JCA (PP. 20 – 21, PARAS F – B)
Also in THE REGISTERED TRUSTEES OF GREATER EVANGELISM WORLD CRUSADE v MR. GOGO JACK(2019) LPELR – 47942 (CA), it was held that;
“It has earlier been settled in this judgment that the learned trial judge had jurisdiction to hear and determine suit No. PHC/2168/10 now under appeal, and so there is no room for further assumption of same. The question that therefore calls for determination under this issue is whether the learned trial judge was right to admit and rely on Exhibit 006 as the 1st Respondent’s root of title. At paragraph 2 of the Statement of Defence and Counter claim copied at page 509 of the record of appeal, the 1st Respondent’ s root of title. At paragraph 2 of the Statement of Defence and Counter Claim copied at page 509 of the record of appeal, the 1st Respondent pleaded inter alia that: …. The unregistered Deed of Conveyance between the defendant and Chief Christopher Okonkwo dated 2001 shall be relied upon as a receipt of payment. In line with the foregoing and in the course of evidence, the Deed of conveyance was tendered by the 1st Respondent and admitted as Exhibit 006 with no objection from the appellant. By provisions of Section 20 of the Land instruments (Preparation and Registration) Laws of Rivers state (Cap 74, Laws of Rivers State of Nigeria), 1999, Exhibit 006 being an unregistered deed is not admissible as evidence as proof of title. Albeit, it may be admissible as evidence of transaction of sale and purchase of land. Thus, its admissibility in Court is merely as a receipt of payment for land. See Ali vs. Ugwu (2012) All FWLR Pt. 619, pg 1078; and Okoye vs. Dumez (1985) 1 NWLR Pt. 4 pg. 783.”
Per JOMBO – OFO, JCA (PP. 25 – 26, PARAS. A – B).
See also LT. COL ABDULLAHI DAN’ASABE (RTD) & ANOR v ALH. IBRAHIM BABALE (2013); AGBA & ORS v JUBU (2019) LPELR – 47189 (CA); MAMWAN v ELISHA (2018) LPELR – 46360 (CA); ADAMU v IGWESI (2014) LPELR – 24000 (CA). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

TITLE TO LAND: CONSIDERATION TO DETERMINE WHEN THE IDENTITY OF A LAND IS IN ISSUE

It is a trite law that the identity of a land is in issue when a defendant makes it one by specifically disputing.
In ALHAJI RAUFU GBADAMOSI v OLAITAN DAIRO (2007) LPELR – 1315 (SC), it was held that;
“It is also now settled law that requires no citation of any authority, that the identity of land in a land dispute will only be in issue if and only if the defendant in his statement of defence makes it one. If he disputes specifically either the area or the location or the features shown in the plaintiff’s plan, then the identity of the land becomes an issue to be tried.”
Per MUSDAPHER, JSC (PP. 15 – 16, PARAS. G – A).
See also KOTUN & ORS v ALAKA & ORS (2019) LPELR – 46755 (CA); OLUBEKO v AWOLAJA & ANOR (2017) LPELR – 41854 (CA); ANYANWU & ORS v UZOWUAKA & ORS (2009) LPELR – 515 (SC). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

APPEAL: WHETHER MULTIPLE ISSUES FOR DETERMINATION CAN BE DISTILLED FROM A SINGLE GROUND OF APPEAL.

It is a principle of law that multiple issues for determination cannot be distilled from a single ground of appeal. In YISI (NIG) LTD v TRADE BANK PLC (2013) LPELR – 20087 (SC); it was held on the effect of more than one issue being formulated from a single ground of appeal thus;

“Where more than one issue is formulated from the same ground of appeal both the issues so formulated and the ground from which they were formulated shall be struck out. See Agbetoba v. The Lagos State Executive Council & Ors 1990 6 SCNJ Pt. 1 P. 12, Tanerewa Nig Ltd v. Plastifarm Ltd 2003 14 NWLR Pt. 840 p. 369.”
per RHODES – VIVOUR, JSC (P. 22, PARAS. D – F)
In NWANKWO & ORS v YAR’ ADUA & ORS (2010) LPELR – 2109 (SC), this Court held on the proliferation of issues thus;
“It is clear that learned counsel concedes that he formulated two issues out of a ground of appeal. What he has done – formulation of two or more issues from a ground of appeal – is what the law regards as proliferation of issues and consequently frowns upon. It is settled law that whereas counsel may formulate an issue out of a ground of appeal or a combination of grounds of appeal, he is not allowed/permitted to formulate more than an issue out of a ground of appeal. The above constitutes the foundation of the objection of Learned Senior Counsel for the 1st and 2nd Respondents. PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

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

AUGUSTINE O. OJOBOR APPELANT(S)

And

MRS. EUNICE OVEGHENI MR. FELIX E. EYITAGHA RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Orerokpe, Delta State per T. O. ULOHO (MRS) delivered on the 24th of March, 2016. Wherein judgment was entered in favour of the 1st Respondent, granting the reliefs of the 1st Respondent and dismissing the Counter – Claim of the Appellant

BRIEF STATEMENT OF FACTS
The Appellant’s case that in 2011, he acquired the land in dispute from the 2nd Respondent, without prior notice of the 1st Respondent’s interest. He stated that the 2nd Respondent assured him that he had not sold the land to any other person before and that he was the owner of the Blocks and white sharp sand on the land. He stated that the 2nd Respondent executed a Deed of Conveyance in his favour in 2011. The Appellant urged the Court to declare him the owner of the land in dispute claiming he has built a house on the land in dispute after acquiring same in 2011. That CW1 under cross examination admitted that he made Exhibit C6A when he was already the secretary of Orerokpe land Management committee, and one of the functions of their committee is to look at the title documents brought before and if possible visit the land or site and that it is after they have done so that they ask the prospective buyer of the land upon their satisfaction to pay the sum of N15,000.00 (Fifteen Thousand Naira) which was eventually issued to the Appellant confirming the ownership of the land to the 2nd Respondent and which said land the 2nd Respondent sold to the Appellant after which the Appellant commenced building relying on the confirmation of the Orerokpe land committee who also visited and inspected the land that it was an empty land and free from all encumbrances.

On the 2nd of February, 2020 the Orerokpe land Management committee through a letter turned around and wrote to the Appellant that their confirmation of the land to the Appellant was done in error, especially after the Appellant had almost completed the building.

The 1st Respondent’s case on the other hand was that sometime in 2007, she purchased a piece of land measuring 100ft by 50ft (462.027 Square Meters) lying at Orhue Street, behind Adane Square, Orerokpe Town, in Okpe Local Government Area of Delta State of Nigeria, from the 2nd Respondent and a Deed of Conveyance was executed in her favour by the 2nd Respondent and a Deed of Conveyance was executed in her favour by the 2nd Respondent. The Claimant was put in possession of the land by the 2nd Respondent and she went ahead to survey the land and Survey Plan No. ESAK/DT/037/2008 was produced in her name. The 1st Respondent deposited 360 blocks and five trips of white sharp sand on the land.

The 2nd Respondent subsequently and allegedly conveyed the same piece of Land which she has brought together with 360 blocks and five trips of white sharp sand on the land to the Appellant in 2011. The 1st Respondent became aware of the 2nd Respondent’s subsequent sale of her land to the Appellant when she discovered that the Appellant commenced the construction of a block house on her land, with the building materials she has deposited on her land. The 1st Respondent approached the Appellant and those working on the land that he should refrain from the Land as she bought the land from the 2nd Respondent earlier. The Appellant would not listen but instead summoned the 1st Respondent to the Orerokpe Land Management Committee (a communal body set up by the Orodje of Okpe to oversee issues of land development and resolution of dispute). It is important to note at this stage that before the 1st Respondent discovered the Appellant’s forcible entry into her land, the 2nd Respondent and the Appellant have surreptitiously gone behind the 1st Respondent to obtained approval from the Orerokpe Land Committee to enable him build on the disputed land. The 2nd Respondent who appeared before the Orerokpe Land Committee deliberately informed the Orerokpe Land Committee members that he had not sold the land in dispute to the 1st Respondent earlier. The Orerokpe Land Committee gave confirmation to the Appellant based on the representation of the 2nd Respondent who claimed to be the owner of the land and the building materials on the land. Eventually, when the Appellant summoned the 1st Respondent to the Orerokpe Land Management Committee over the land they had earlier given approval to the Appellant; the Orerokpe Land Committee summoned the three parties. It was during the hearing before the Orerokpe land Committee in the presence of the three parties that it was discovered that the 1st Respondent is the owner of the land having acquired same from the 2nd Respondent in 2007. The 2nd Respondent subsequently admitted to the Orerokpe Land Committee that he had earlier sold the land and the materials thereon. Based on these established facts, the Orerokpe land committee revoked and withdrew the approval earlier granted to the Appellant and the Appellant was asked to vacate the land at this time the Appellant’s building on the 1st Respondent’s land was at foundation level. The Appellant refused to accept the decision of the Orerokpe Land Committee and refused to vacate, the refusal was what led to this action.

The trial Court entered judgment in favour of the 1st Respondent in the following terms:
I. It is hereby declared that the Claimant is the owner of the land lying and situate at No. 3 Orhue Street, back of Adane Square which Claimant purchased from the 2nd Respondent on the 11th day of April, 2007.
II. It is further declared that the acts of trespass of the Defendant on the Claimant’s land is unlawful.
III. An Order of perpetual injunction is thereby granted restraining the 1st and 2nd Respondents, their agents, privies or any person claiming through them from further trespassing on the Claimant’s land.
IV. The sum of N200,000.00 is hereby granted as General Damages against the 1st and 2nd Respondents jointly and severally in favour the Claimant for the act of trespass, expenses and property destroyed on the Claimant’s land.
V. The sum of N20,000.00 awarded as cost against the Defendants in favour of the Claimant.
See pages 188 – 189 of the Record.

The Appellant displeased with the judgment filed a Notice of appeal on the 29th of March, 2016 and his brief of argument and a reply brief on 5th June, 2020 but deemed 30th September, 2020 both were settled by F. O. Otobrise, Esq., of F. O. OTOBRISE & CO., wherein the following issues were distilled for determination;
“1. Was the learned trial judge not wrong when he held that the Appellant purchased the piece of land earlier sold to the 1st Respondent by the 2nd Respondent without ascertaining whether the land purchased from the 1st Respondent are on and the same land as revealed by the evidence nominated by each parties in the appeal.

2. Did the trial judge not fell into grave error when it held that 1st Respondent has established a better title to land in dispute than the Appellant when in the actual sense, the 1st Respondent could not identify the land sold to him by the 2nd Respondent and the trial Court having failed to reach a finding on law and fact that Exhibit C1 which the 1st Respondent pleaded, and tendered as a Deed and a document of title to land cannot transfer interest in land.
3. Was the Court not wrong to rely on the unregistered the (sic) Deed of conveyance pleaded as a deed and tendered as same by the 1st Respondent as a document of title to land?
4. Was the trial Court not wrong when it came to the wrong conclusion when it held that the 1st Respondent pleaded her title document as a receipt and tendered same as a receipt where from the record and state of the 1st Respondent’s pleading she pleaded Exhibit C1 at page 2 paragraph 4 of the record as a Deed and tendered same as a Deed at page 147A of the record.
5. Was the trial Court not wrong when it held that the Appellant did not make the identity of the land an issue in his statement of defense/counter claim when by the total scrutiny of the Appellant statement of defence/counterclaim the Appellant had make the identity of the land an issue at page 24 in paragraph 2, 6, 7, 8, 9, 10.
6. Was the trial Court not wrong when it reached the wrong conclusion that the Appellant trespassed unto the land in dispute.
7. Whether the trial Court was wrong when it awarded the sum of the N250, 000, 000 (Two Hundred and Fifty Thousand naira) in favour of the 1st Respondent against the appellant.
8. Was the judgment of the trial Court not against the weight of evidence.

The 1st Respondent in like manner also filed her brief of argument on 10th May, 2018 but deemed 16th March, 2020 and redeemed 30th September, 2020, same was settled by G. J. Ikpesu, Esq.

The 1st Respondent adopted the issues of the Appellant save for the 7th issue as couched by the Appellant for determination.

APPELLANT’S SUBMISSION
The Appellant arguing issues 1, 2 & 5 together, submits that the trial judge was wrong and fell in grave error when he held that the 1st Respondent purchased the piece of land before the Appellant purchased same.

That the 1st Respondent did not prove and establish the identity of her land which is claiming with certainty and precision and this was very manifest from the record but despite this obvious short fall in the evidence and case of the 1st Respondent, the trial Court went ahead and gave judgment in favour of the 1st Respondent. OGUN v AKINYELU (2005) VOL. 123. LRCN PAGE 96 AT PAGE 117 UZ was cited in submitting that she must establish the identity of the land she laid claim of title to with precision and the 1st Respondent failed to do so.

That the 1st Respondent was not consistent in her description of the land in her statement of claim and written statement of oath, reference was made to paragraphs 3, 4, 5, 6, 7, 14 (ii) & (iii) of the Written statement of Oath, paragraphs 3 & 7 of the written statement of the records. While the Appellant was consistent in stating the identity and location of the land he purchased from the 2nd Respondent and was also consistent in proving the identity and location of the land he bought from the 2nd Respondent and in proving same; paragraphs 2 and 17 of the statement of defence/counterclaim and paragraphs 2, 5, 7 of the Appellant’s written statement on Oath were referred to.

The Appellant contends that the 1st Respondent’s land is a completely different land from the land the Appellant is claiming and has erected a completed building on.

Furthermore, that the trial judge was wrong when he said that Exhibit C1 was admitted in evidence of transaction of receipt of the land. Counsel referred to paragraphs 4, 5, 6, 12 of the statement of claim and the 1st Respondent during trial tendered Exhibit C1 as a Deed of Conveyance illustrative.

Counsel submits that a Claimant seeking a declaration of title to land and an order of perpetual injunction has the primary duty to lead evidence to be entitle to judgment. AUTA v IBE (2003) VOL. 110 LRCN PAGE 1602 AT PAGES 1617JJOO & 1618A; ANSA v ISHIE (2005) VOL. 129 PAGES 1657 AT PAGES 1627EE & 1673A were cited in aid.

Counsel further submitted that for the principle of the issue of priority in law which the trial Court rely on in his judgment to apply the 1st Respondent must describe and identify her land with precision to prove that the land which the Appellant purchased from the 2nd

Respondent as confirmed by the Orerokpe land Management Committee is one and the same land with that of the 1st Respondent which claim she purchased in 2007;OWIE v IGHIWI (2005) VOL. 124 LRCN PAGE 503 AT PAGE 523Z were cited in aid.

Issues 3 & 4 were argued together. It is the submission of the Appellant that at page 149 of the record, the 1st Respondent gave evidence that the land she was laying claim to is no. 3 Orhue Street, Orerokpe, the trial Court was wrong to have relied on the 1st Respondent Exhibit C1 which he tendered as a document of title to land that can affect and transfer interest on land. See DABO v ABDULLAHI (2005) (VOL. 125) PAGE 742 AT PAGE 777EEJ & 778AF.

That in the 1st Respondent’s Deed of Conveyance, her land is lying and situate along No. 3 Orhue Street, Orerokpe bounded by James Ebireri, piece or parcel of land, the other side is an existing road, and on the other side is also an existing road while the other side is the vendor Mr. Felix Eyitagha piece of land while on the 1st Respondent’s survey plan the land is at Orerokpe.

It is the submission of the Appellant’s that the 1st Respondent’s written statement on oath was referred to in contending that the pleadings, Deed of conveyance, survey plan of the 1st Respondent and her written address, statement on oath are most inconsistent. That the 1st Respondent failed to comply with this requirement of the land and touching on the identity of the land, the case of the land and this touching on the identity of the land, the case of the 1st Respondent ought to fail.

On Issue 6, it is the submission of the Appellant that the evaluation of a document is not within the preserve of the trial judge. Both the trial judge and the Appellant Courts have equal right and powers to evaluate a documentary evidence especially where the findings of a trial judge on a documentary evidence is perverse, an appellate Court will see the perversion and employ his appellate powers to correct it; IWUOHA v NIPOST (2003) VOL. 110 LRCN PAGE 1622 AT PAGE 1645FK was cited in aid.

It is the submission of the Appellant in issue 7 that he is in exclusive possession of the land in dispute. Trespass to land is actionable in a suit filed by the person who is in possession of the land.

APENA & ANOR v AILERU & ANOR (2014) LPELR – 23305 (SC); (2014) 14 NWLR (PT. 1426) PAGE 111 was cited in submitting that before a Court can reach a conclusion that a party in the case commit act of trespass to the land in dispute, the trial Court must see a credible evidence that the person in whose favour it award damages for trespass is in exclusive possession of the land; the Court must also be very sure by the evidence as can be gleaned from the record that the identity of the land must not be in dispute and the land must clearly be ascertained.

EFETIROROJE v OKPALEFE II (1991) 5 NWLR (PT. 193) PAGE 517; ADDAH & ORS v UBANDAWAKI (2015) LPELR – 24266 (SC); (2015) 7 NWLR (PT. 1458) PAGE 323 was also cited in submitting it is that in this type of claim by the 1st Respondent, her land must be described clearly and sufficiently so that a surveyor can, using the description, produce a plan of the land in dispute. That the trial Court was therefore wrong to reach the conclusion it reached that the Appellant trespassed unto the land of the 1st Respondent and upon which the trial Court wrongly awarded the monetary damage of N250,000.00 (Two Hundred and Fifty Thousand naira) against the Appellant.

On issue 8, the Appellant submits that the judgment of the trial Court is not against the weight of evidence. A judgment is against the weight of evidence where there is no evidence which if accepted will supports the findings of the trial Court or the inference which he made in its judgment.

MOGAJI & ORS v ODOFIN & ORS (1978) 4. S. C 91 AT PAGE 93; MBA NTA & ORS v EDE NWEDE ANIGBO & ORS (1972) ALL N.L.R. (PT. 2) PAGE 74 AT PAGE 80; ANACHUNA ANYAOKE & 7 ORS v DR. FELIX ADI & ORS (1986) 3 NWLR (PT. 31) PAGE 731, AT 742 was cited in contending that when the evidence adduced by Appellant is weighed or balanced against that adduce by the 1st Respondent, the judgment given in favour of the 1st Respondent would be against the weight which should have given, having regard to the totality of the evidence before Court.

1ST RESPONDENT’S SUBMISSIONS
In the first heading; Was the learned trial judge not wrong when he held that the Appellant purchased the piece of land earlier sold to the 1st Respondent by the 2nd Defend(sic) without ascertaining whether the land purchased from the 2nd Respondent by the Appellant and the Land purchaser by the 1st Respondent are one and the same land as revealed by the evidence nominated by each parties in the appeal.
It is submitted that the trial Court rightly held that by Exhibit C1 and D3, the 1st Defendant purchased the same piece of land earlier sold by the 2nd Respondent to the Claimant much more later after same had been purchased by the Claimant.

That from the totality of the evidence before the trial Court, the identity of the land in dispute is not shrouded in mystery, same is well known to all parties and they both admitted same during their evidence.

It is the further submission of the 1st Respondent that CW1 was a subpoena witness, who gave evidence for and on behalf of the Orerokpe land Management committee. The Appellant admitted that the Orerokpe Land Management committee visited the land in dispute in the presence of both parties both parties agreed that the land in dispute is the same.

NWOBODO EZEUDU & ORS v ISAAC OBIAGWU (1986) 2 NWLR (PART 21) 208 AT 220 was cited in postulating the circumstances where the identity of a land is said to have been put in dispute.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ABUBAKAR & ANOR v JOSEPH & ANOR (2008) LPELR 48 (SC); ABRAHAM v AJAGHIONYEOGU (2016) LPELR 41085 were further cited in submitting that evidence are not meant to be pleaded but established, so the contention of the Appellant that Exhibit C1 was not pleaded is in error.

In the second heading; Whether as between the Appellant and the 1st Respondent, who has priority of interest over the land in dispute and whether the Claimant/1st Respondent proved the identity of the land in dispute.
Counsel submits that in the determination of priority of interest as to who bought first between contestants, recourse must first be had to the date when the parties who are contesting ownership bought the piece of land from the common vendor. That both the Appellant and the 1st Respondent agree that the 1st Respondent bought the land in dispute in 2007 and the 1st Defendant/Appellant bought the land in dispute in 2011, from the same vendor the 2nd Respondent.

On the contention of the Appellant that the 1st Respondent could not prove and establish the identity of her land with certainty and precision, Counsel submits that the facts of this case, evidence of the parties during the trial and the exhibits tendered by the parties say the contrary. That what has been admitted needs no further proof, the 1st Respondent clearly pleaded and gave evidence that she met the Appellant on the piece of land in issue with his workers and warned him that the land belonged to her, reference was made to paragraphs 7 & 8 of the statement of Claim and paragraphs 6, 7, 8, 9 of the Statement of Defence; ATANDA V. ILIASU (2012) LPELR 1966 (SC); AYUYA & ORS v YONRIN & ORS (2011) LPELR 686 (SC) in aid.

Counsel urged the Court to hold that the identity of the land in dispute between the parties in this case is known since the parties filed their survey plans.

In the third heading; Appellant contention that the 1st Respondent is guilty of delay in warning him, that as soon as she got wind of the trespass on her piece of land in 2011, she confronted the Appellant and asked him to stop his acts of trespass; paragraph 2 – 7 of the Record of appeal; ONWUGBELU v MEZEBUO & ORS (2013) LPELR 20401 (CA) were referred to in aid.

Counsel further contends that the defense of lashes and acquiescence which the Appellant attempted to rely on will not avail the Appellant. That the position of the law is that the Appellant has the onus to prove that the 1st Respondent was aware of his acts of building on her Land but she deliberately stood by with a view to reaping the benefit. DA COSTA v IKOMI (1968) LPELR 2551 (SC); LAOSEBIKAN v AWOJOBI (2015) LPELR – 24831 (CA); KAIYAOJA & ORS v EGUNLA (1974) LPELR 1644 (SC) were cited in aid.

In the fourth heading; whether the Appellant put the Identity of the Land in dispute in this case, the 1st Respondent contends that a thorough consideration of paragraphs 2, 6, 7, 8, 9 and 10 of the Appellant’s statement of defence/Counter claim clearly reveals that the Counsel to the Appellant does not know what it means to put the identity of a land or make the identity of a land an issue at the trial.

That the paragraphs referred to by the Appellant are nothing but pleadings and to put the identity of land in dispute or to make it an issue, the Appellant must clearly plead that he intend to contend that the land claimed by the 1st Respondent is different from the land she is laying claim to and also plead how his own land is different and distinct from the 1st Respondent’s land; ANYANWU & ORS v UZOWUAKA & ORS (2009) LPELR 515 (SC) was relied on.

1st Respondent urges the Court to hold that the identity of the land was not put in dispute and uphold the judgment of the lower Court.

APPELLANT’S REPLY
In reply to the 1st Respondent’s contention that the Appellant did not put the identity of the land in dispute, the Appellant with reference to the evidence of the 1st Respondent during cross examination at pages 147 – 150 of the record; page 48, paragraph 13 and Exhibit D7 submit that the Appellant put the identity of the land in issue as a requirement as a requirement that for the Defendant to succeed to this, he must raise the identity of the land in defence, during cross examination and where a Defendant gave such testimony; ILONA v IDAKWO (2003) 11 NWLR (PT. 8) was relied on.

RESOLUTION
I have critically considered the issues as canvassed by the parties in this appeal. The Appellant formulated 8 (Eight) issues for determination in this appeal and the 1st Respondent in seemingly trying to adopt the Appellant’s issues for determination adopted 7 issues to the exclusion of the 7th issue of the Appellant.

Furthermore, the 1st Respondent in her arguments on the issues raised, argued these issues under four sub – headings without a proper indication of which issues were being lumped together and in between raised a different issue from the ones supposedly adopted.
The Appellant on the other hand in arguing the issues raised lumped them together. This leads me to my first port of call in this appeal.

The Appellant in his brief at paragraph 2.01 lumped issues 1, 2 & 5 and indicated (Grounds 3); at paragraph 2. 04 of the brief indicated; 1st Respondent open her case (Grounds 1 & 3); at paragraph 2.05 indicated Issues 3 & 4 (Covered by Grounds 1, 2 & 3); at 2.06 indicated Issue 6 (Covered by Ground Four); at 2.07, issues 1, 2, 3 & 4 (Covered by Grounds Two, Three and Four).

I hold the view that the objection is well founded in law. Consequently the objection is sustained and issue No. 3 is hereby struck out for being incompetent. See Ibrahim v Ojomo (2004) 4 NWLR (Pt. 862) 89 at 104; Iwuoha v NIPOST Ltd (2003) 8 NWLR (Pt. 822) 308 at 332; Shittu vs. Fashawe (2005) 14 NWLR (Pt. 946) 671 at 687; Mark v. Eke (2004) 5 NWLR (Pt. 865) 54 at 81 – 82.”(Underlining Mine)
per ONNOGHEN, JSC (P. 21, PARAS A – F)
See also; TROPICS SECURITIES LIMITED & ORS v ASSET MANAGEMENT CORPORATION OF NIGERIA (2019) LPELR – 47275 (CA); UNILORIN v OLUWADARE (2003) 3 NWLR (PT. 808) 557;IWUOHA & ORS v NIPOST LTD & ANOR (2003) 8 NWLR (PT. 822) 308 AT 332;CHIEF NTA SAM UKET v CHIEF MICHEAL OKON OKPA (2005) LPELR – 12887 (CA).
As earlier reproduced, the Appellant proliferated issues from grounds 1, 2, 3 & 4 of the Notice of appeal. The only exception to proliferation of issues is only in special cases where the grounds so dictate. See GWAR v ADOLE (2003) FWLR (PT. 176) 747 @ 760.
A look at the Notice of appeal at pages 190 – 193 of the record shows that the grounds do not fall under those specifications.

Flowing from the above, the consequential order would be to strike out issues 1, 2, 3, 4, 5 of the appeal for being incompetent.
However, the 1st Respondent did not raise an objection to the incompetency of the issues as formulated by the Appellant and also in consideration of the decision of this Court in DR. MRS MARIAN NNEAMAKA COMFORT ALI & ANOR v SENATOR PATRICK ENEBILI OSAKWE & ORS (2008) LPELR – 12740 (CA), where it was held thus;
“On the point raised about the Appellants’ counsel distilling more than one issue from a ground of appeal, the law is that issues for determination should contain points raised in one or more grounds of appeal – that is multiple grounds may raise an issue whereas issues should not out number grounds of appeal. See Stirling Civil Engineering Nig Ltd v Ambassador Mahmood Yahaya (2005) 4 SCNJ 133; Dr. Mozie v Chike Mbamalu (2006) 7 SCNJ 411. I agree with learned 1st & 2nd Respondents’ counsel that it is improper to formulate multiple issues from one ground of appeal. See Merchantile Bank of Nig & Anor v Linus Nwobodo (2005) 7 SCNJ 569.

What however is the significance of the Appellants’ counsel’s impropriety in formulating more than one issue from a ground of appeal? Pats – Acholonu JSC said in Merchantile Bank v. Nwobodo supra at Pg. 572 that the implication is that there has been a parade or display of palpable ignorance nay culpable lack of knowledge of the law to the effect that the appellant’s counsel is not sure what he is appealing against. In that case, the Supreme Court dismissed the appeal because the sole ground of appeal was incompetent, as it did not arise from the judgment of the Court below. In the case at hand, I would not go as far as to strike out the multiple issues 1 & 6 derive from ground 11 which is a competent ground of appeal because the Supreme Court did not recommend such an extreme sanction but merely to comment that it shows lack of understanding on the part of counsel.” (UNDERLINING MINE).
per OGUNWUMIJU, JCA (PP. 8 – 10, PARAS E – A).
See also ABDULFATAI v MULIKAT & ORS (2019)

I shall now proceed to resolve the appeal on the issues as formulated by the Appellant. However, I shall resolve issues 1, 2, 3, 4 & 5 as Issue 1, issues 6 & 7 as issue 2 and issue 8 as issue 3.

ISSUE 1 (Issues 1, 2, 3, 4 & 5)
The above issues stem from the question; Whether or not the land sold to the Claimant/1st Respondent and the land sold to the Appellant are one and the same?

The land in dispute as gleaned from paragraphs 4 and 14 of the 1st Respondent/Claimant’s statement of claim and written statement on oath is;
4. The Claimant acquired a land measuring 100ft by 50ft (462. 027 sq. mts) sometimes in 2007 at Orerokpe from the 2nd Respondent. A Deed was executed and the Claimant shall rely on the said Deed at the trial of this action including the survey plan No. ESAK/DT/037/2008.
14. The land is lying at No. 3 Orhue Street, back of Adane Square, Orerokpe and having boundary with other land of the 2nd Respondent either sold by him or occupied by him. (Underlining Mine)
See pages 2, 3, 5 & 6 of the Record.

The Appellant/Defendant in his Statement of defence/Counter claim averred thus;
2. The 1st Defendant avers that sometimes in the year 2011, he negotiated and purchased a piece and or track of land measuring 100ft x 50ft and or its equivalence in metres lying and situate off Orhue Street, close to Adane house, by Orodje Palace, Orerokpe in Okpe Local Government Area of Delta State for value and valuable consideration without any knowledge that there was any third party interest on the land. Before the 1st Defendant purchased the said land, he stimulated investigation discovered that the land was free from any encumbrance or third party interest. The 2nd Respondent who sold the land to the 1st Defendant also assured the 1st Defendant that the land had not been sold to any person that the land had no problem in terms of the title of the 2nd Respondent. (Underlining Mine)

And in the Appellant/1st Defendant’s written statement of oath in paragraphs 2 and 5 the land is described thus;
2. That sometimes in the year 2011, I sourced for, negotiated and purchased a piece and or track of land measuring approximately 100ft by 50ft or its equivalence in square metres measuring 436.795 lying and situate Off Orhue street, Close to Adane House, by Orodje Palace, Orerokpe in Okpe Local Government Area of Delta State.
5. That the said land is in boundary with Mr. Ebirerhi’s land (compound), it is also in boundary with an existing lane or land leasing to the 2nd Respondent’s compound and another existing road (land) which is at the back of Adane house.
See pages 24 & 30 of the Record.

From the pleadings reproduced above it is obvious that they both gave the same description of the land showing that there is no mistake in identity.

It is a principle of law that where the parties know the identity of the land in dispute, it is unnecessary for the Claimant to identify it.

In ATANDA v ILIASU (2012) LPELR – 19662 (SC), the apex Court held on whether proof of identity is required where the identity of the land in dispute is known to the parties thus;
“Generally, a Plaintiff’s claim for declaration of title to land to land and/or injunction pursuant to claim for damages consequent upon trespass by the Defendant succeeds only where the identity of the land in respect of which the reliefs are sought is certain. However, where the identity of the land is not issue in the sense that parties know exactly the identity of the land, the subject – matter of the dispute between them, the requirement that the plaintiff and/or parties prove (s) the identity of the land ceases to be a necessity. See Buraimoh v Bamgbose (1989) 3 NWLR (PT. 1O9) 42 352 SC; Okonkwo v Adigwu (1985) 1 NWLR (1985) 1 NWLR (pt. 4) 694. Maberi v Alade (1987) 2 NWLR (Pt. 55) 101.”
per MUSA DATTIJO MUHAMMAD.
Also; KYARI v ALKALI & ORS (2001) LPELR – 1728 (SC), where it was held thus;
“…where the identity of the land in dispute is not in issue between the parties, no onus, naturally, lies on a claimant for declaration of title to such land to prove the said identity as that fact is not an issue for determination between the parties in the suit.”
per ANTHONY IKECHUKWU IGUH, JSC (PP 21 – 21, PARAS D – E).
See also ANAGBADO v FARUK (2018) LPELR – 44909 (SC); SHETTIMA v GHULUZE (2018) LPELR – 46316 (CA); JAGABA & ORS v UMAR (2016) LPELR – 40466 (CA); ADUGBO v IBE (2018) LPELR – 46138 (CA).

It is noteworthy to recall that both parties have separate deeds of conveyance and survey plans in relation to the disputed land.

Exhibit C1 which is the deed of conveyance between Mr. Felix Eyitagha and Mrs. Eunice Ovegheni, where the land sold was described as; piece or parcel of land measuring 100ft by 50ft square metres lying and situate along No. 3 Orhue street, Orerokpe in Okpe Local Government Area of Delta State, the land is bounded by James Ebireri, piece or parcel of land, other side is an existing road, and on the other side is also an existing road while the other side is vendor Felix E. Eyitagha piece of land..”
See page 12 of the record.

And Exhibit D3; deed of conveyance between Mr. Felix Eyitagha and Augustine Ojobor, the land is described as:
“…piece or parcel of land measuring approximately 100feet by 50feet lying, situate and being off Orhue Street, close to Adane House by Orodje Palace, Orerokpe, Delta State of Nigeria. The landed property is bounded on the north by Mr. Ebirherhi’s compound, on the east by an existing lane, on the south and west by an existing road –cum – the Vendor’s plot of the land respectively..”
See pages 16 & 39 of the Record.

The Appellant contended that 1st Respondent did not describe the land in dispute with precision and certainty and made heavy weather of the fact that the 2nd Respondent’s land/address and the land described by the 1st Respondent have the same exact address.
Both parties as evidenced in their deeds of conveyance where aware of the fact that the land in dispute forms part of a large property in which the 2nd Respondent’s place of residence was also part of.
One fact comes through from the semantics used in describing the land by both parties, that is; the land is close/near Adane square, Orodje Palace and in Orerokpe.
A perusal of the survey plans attached to the deeds (Appellant’s survey plan no. HAIL/NRC/059/2011 prepared by Surv. O. T. Dabiri and the 1st Respondent’s survey plan no. ESAK/DT/037/2008 prepared by Surv. Akpomudjere) at pages 14 and 40 of the record respectively reveals slight discrepancies in terms of the name, the location of the existing road and different features. However, it has been held by this honourable Court in CHIEF AJIBOLA ADENIYI FALUYI & ORS v ENGINEER SAMSON OLUSEGUN OGUNSEYE (2019) LPELR – 48015 (CA) that;
“…Thus, in Ayuya & Ors v Yonrin (2011) 10 NWLR (pt. 1254) 135, the Supreme Court held that: “It is common occurrence in land matters for parties to refer to the same piece or parcel of land by different features but the bottom line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all; what is usually in dispute is the ownership of the particular land being claimed by the plaintiff. It follows therefore that where a plaintiff claims ownership of a piece or parcel of land against his neighbor and describes the boundaries of the said land in a Survey Plan which is tendered and admitted in evidence, that survey plan which is tendered and admitted in evidence, that survey plan clearly refer to the particular piece or parcel of land in dispute and it cannot be said that the identity and extent of the said land is unknown. What the Plaintiff/Claimant now needs to do is to prove/establish his title to the said undisputed land by one of the five ways/methods of proving ownership or declaration of title to the land and to also testify as to the features etc. on the land in issue.”
Per TSAMMANI, JCA (PP. 82 – 84, PARAS. E – D)

See also AYUYA & ORS v YONRIN & ORS (SUPRA); GABRIEL OGUNLEYE & ANOR v CHIEF S. O. JAIYEOBA & ANOR (2010) LPELR – 4179 (CA).

Furthermore, Mr. W. O Ekokifo who is the secretary of the Orerokpe Land Management committee in his statement on oath given on subpoena on behalf of the Orerokpe Land Management Committee Orerokpe;
3. That on the 22nd day of February, 2011, the 1st and 2nd Respondents came to the Committee for the confirmation of the title Deed of the land the 2nd Respondent sold to the 1st Defendant which is behind Adane square, Orhue Street, Orerokpe. The 2nd Respondent told the committee that he has not sold the land, and that the building materials on the land were deposited there by him to build the land but he was unable to do so. The 1st Defendant submitted the Deed between him and the 2nd Respondent which was dated 2nd February, 2011. The 1st Defendant wanted to develop the land hence the confirmation the land measuring approximately 100ft by 50ft.
4. That on the 24th day of June 2011, the 1st Defendant to the committee to report that the land he bought from the 2nd Respondent already confirmed had problem. He said that the 2nd Respondent had earlier sold the land to the Claimant before selling to him and that the Claimant had arrested him and she claimed to be the owner of the building materials put on the land and that the police asked them to settle the matter and report back to them.
5. That on the 5th day of July, 2011, the Defendants came again on the matter to say that they could not settle. The Committee then asked the Defendants to come with the Claimant for the Committee to be able to look into the matter.
6. That on the 12th day of July, 2011, the Defendants and the Claimant appeared before the Committee. The 2nd Respondent admitted selling the land to the Claimant before selling to the 1st Defendant. He then said he would be able to give another land measuring approximately 70ft by 50ft to the parties. The foundation on the land in dispute was at the DPC level then. The Claimant equally submitted photocopy of the Deed between her and the 2nd Respondent.
7. That on 19th day of July, 2011, the Defendants came to say that the land when measured was 50ft by 50ft and nobody was willing to accept. The Claimant was urged to be given another land at the expense of the Defendants. She reluctantly accepted. But the Defendants failed or refused to raise the money for that land despite repeated reminder by the committee…”
See pages 77 – 78 of the record.

This inadvertently leads us to the poser in issue 5; whether the Appellant put the identity of the land in dispute?

I have taken a cursory look at the Appellant/Defendants statement of defence and I cannot find any specific averment where the Appellant put the identity of the land in issue. Therefore parties did not join on the identity/location of the land; in fact inspection had been made by the land committee in Orerokpe.

The parties had also met on the land in dispute when the 1st Respondent warned and informed the Appellant of her ownership of the land in dispute, see paragraphs 7 & 8 of the statement of claim at page 5, and the Appellant also referred this confrontation in his paragraphs 6, 7, 8 & 9 of his statement of defence. These are clear indicators that the parties knew the identity of the land in dispute.

Without fear of contradiction and standing on the above authorities I hold that the parties know the identity of the land in dispute.

Issue 1 and 5 are resolved in favour of the 1st Respondent.

On the issue(s) of the reliance placed on Exhibit C1 by the trial Court, it is pertinent to state here that the deeds of both parties before the Court are unregistered, and both of them were tendered as document evidencing the payment in respect of the land in dispute.
See paragraph 4 of the 1st Respondent/Claimant’s statement on oath:
4. That I acquired a land measuring 100ft by 50ft (462.027 square meters) sometimes on the 11th April, 2007 at Orerokpe from the 2nd Respondent. A Deed was executed and I have a copy of the Deed and the Survey plan and I seek to tender it as evidence of transaction, receipt for money collected by the 2nd Respondent and the measuring of the land.
And the Appellant/Defendant in his Statement on oath averred thus;
12. That I shall at the hearing of the case found and place reliance on the said unregistered Deed of Conveyance dated the 2nd day of February, 2011 together with the Survey Plan by which I surveyed the land which said Survey plan forms part of the unregistered Deed of Conveyance as evidence of the transaction between the 2nd Respondent and myself.
See pages 5 and 31 of the record.
The Respondent equitable title is first in time.
In OMOTOSHO v BANK OF THE NORTH LTD & ANOR (2006) LPELR – 7580 (CA), this Court held on the position of the law as regards the admissibility of an unregistered registerable instrument thus;
“Be that as it may, it is relevant to point out that a deed of legal mortgage is a land instrument which ought to be stamped and registered to make it admissible in evidence as proof of legal title. See Usman v Kareem (1995) 2 NWLR (PT. 379) Page 537. However, while an unregistered land instrument is inadmissible to prove title, it is admissible to prove purchase and can be utilized as a purchase receipt. Thus it is admissible to prove equitable interest only. See Thomas Awogbo v Chukwu Eze (1995) 1 NWLR (Pt. 372) Pg. 393.
per OGUNWUMIJU, JCA (PP. 20 – 21, PARAS F – B)
Also in THE REGISTERED TRUSTEES OF GREATER EVANGELISM WORLD CRUSADE v MR. GOGO JACK(2019) LPELR – 47942 (CA), it was held that;
“It has earlier been settled in this judgment that the learned trial judge had jurisdiction to hear and determine suit No. PHC/2168/10 now under appeal, and so there is no room for further assumption of same. The question that therefore calls for determination under this issue is whether the learned trial judge was right to admit and rely on Exhibit 006 as the 1st Respondent’s root of title. At paragraph 2 of the Statement of Defence and Counter claim copied at page 509 of the record of appeal, the 1st Respondent’ s root of title. At paragraph 2 of the Statement of Defence and Counter Claim copied at page 509 of the record of appeal, the 1st Respondent pleaded inter alia that: …. The unregistered Deed of Conveyance between the defendant and Chief Christopher Okonkwo dated 2001 shall be relied upon as a receipt of payment. In line with the foregoing and in the course of evidence, the Deed of conveyance was tendered by the 1st Respondent and admitted as Exhibit 006 with no objection from the appellant. By provisions of Section 20 of the Land instruments (Preparation and Registration) Laws of Rivers state (Cap 74, Laws of Rivers State of Nigeria), 1999, Exhibit 006 being an unregistered deed is not admissible as evidence as proof of title. Albeit, it may be admissible as evidence of transaction of sale and purchase of land. Thus, its admissibility in Court is merely as a receipt of payment for land. See Ali vs. Ugwu (2012) All FWLR Pt. 619, pg 1078; and Okoye vs. Dumez (1985) 1 NWLR Pt. 4 pg. 783.”
Per JOMBO – OFO, JCA (PP. 25 – 26, PARAS. A – B).
See also LT. COL ABDULLAHI DAN’ASABE (RTD) & ANOR v ALH. IBRAHIM BABALE (2013); AGBA & ORS v JUBU (2019) LPELR – 47189 (CA); MAMWAN v ELISHA (2018) LPELR – 46360 (CA); ADAMU v IGWESI (2014) LPELR – 24000 (CA).

The 1st Respondent also pleaded and led evidence to prove that she carried out acts of possession over the disputed land by depositing five trips of sand and three hundred and sixty blocks on the land after the payment of the purchase price until the advent of the Appellant on the land. The lower Court was therefore on firm ground when it admitted Exhibit C1 and relied on the Deed of conveyance found title to the land in the 1st Respondent. See pages 184, 185 & 186, where the Court held thus;
“…In paragraph 4, the Claimant pleaded that she will rely on the Deed of document duly executed as evidence of transaction or receipt of money collected. The Deed of document being admitted in evidence was admitted as evidence of transaction of receipt of payment of the land.

The submission of E. O Otobrise that Exhibit “C1” was not registered cannot therefore hold water, Exhibit “C1” having been admitted in evidence not as evidence of title or as document transferring any interest on land, but as document evidencing payment in respect of the land in dispute. In the same vain Exhibit “D3” the Deed of Conveyance made between the 1st Defendant and the 2nd Respondent was pleaded as a document acknowledging receipt of payment. Exhibits “C1” and “D3” are therefore not title documents.
…In other to determine the party who has proper possession, the Court must determine between the Claimant and the Defendant who has better title. From the evidence presented by the Claimant and the Defendant, they each purchased the piece of land in dispute from the 2nd Respondent. The 2nd Respondent never appeared before this Court. The Deed of conveyance made between the Claimant and the 2nd Respondent on the one hand, and the 1st Defendant and 2nd Respondent on the other hand that is Exhibits “C1” and “D3” were tendered and admitted in evidence as evidence of receipts and not evidence of title. The Claimant and the 1st Defendant are both claiming to have purchased the land in dispute from the 2nd Respondent and their proof of having purchased such land are Exhibits “C1” and “D3”. There are therefore competing interest from Claimant and the 1st Defendant claiming to have each purchased the land in dispute from the 2nd Respondent and their proof having purchased such land are Exhibits “C1” and “D3”. There are therefore competing interest from Claimant and the 1st Defendant claiming to have each purchased the land in dispute from the 2nd Respondent. The Law is trite that were there are two competing interest by two or more persons claiming title to the same piece or parcel of land that from a common grantor both in equity or Law, that the first in time prevails based on the Latin maxim qui prior est tempore est jure, which means he who is earlier in time is stronger in law.
…By Exhibits “C1” and “D3”, the 1st Defendant purchased the same piece of land earlier sold by the 2nd Respondent to the Claimant much more later after same had been purchased by the Claimant. The 2nd Respondent in Law had no title to pass unto the 1st Defendant having transferred his interest to the Claimant having sold same to the Claimant. See ILONA V SUNDAY IDAKWO & ANOR. (supra). On the Principle of first in time, I find and hold that the Claimant has established to the satisfaction of the Court that she has better title to the land in dispute than the 2nd Respondent. That being the position the acts of the 1st Defendant on the land in dispute will amount to acts of trespass. See the case of GEGE V NANDE & ANOR (2006) 10 NWLR (PT. 988) 256.”

On the whole, I resolve issue 1 (issues 1, 2, 3, 4 & 5).

ISSUE 2 (Issues 6 & 7)
In a declaratory action, where both parties are claiming ownership of a land in dispute, the acts of possession of the adverse party automatically amount to acts of trespass.
In AKINYEMI & ANOR v BANJOKO (2017) LPELR – 42377 (CA), it was held that:
“It is trite law that claim in trespass is at the instance of the person in possession. Accordingly, where a person is not shown to be the owner of the land, his acts will be those of a trespasser, and it will not be defence for him to claim that title to the land is in another person who is a third party. See Balogun v. Dada (1988) 2 S.C.N.J p. 104 and Ogbechie v Onochie (1988) S.C.N.J. p.170.”
Per TSAMMANI, JCA (P.38, PARAS. A – C)
Also in ECOBANK v AZUBUKO & ORS (2018) LPELR – 46624 (CA) it was held that:
“It is trite law that “only a person in possession of land at the material time can maintain an action for damages for trespass but when the issue is as to which of the two claimants has a better right to possession or occupation of a piece or parcel of land in dispute, the law will ascribe such possession and or occupation to the person who proves a better title thereto. Equally, when two parties are on land claiming possession, trespass can only be at the suit of that party who can prove that title to the land is in him. See Umeobi v. Otukoya (1978) 4 SC 33.” See Oriorio vs. Osain (2012) 16 NWLR Part 1327 page 527, per Adekeye, J.S.C. Also, in Amaechi v Amaechi (2013) LPELR – 20638 (CA) Owoade, J.C. A, had the following to say:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“It is a settled principle of law that once an act of trespass is established, the trespasser is liable to damages. See Okunrinmeta vs. Agitan (2002) 2 NWLR (Pt. 752) 565 … This is because trespass to land is the wrongful invasion of the private property of another. It is trespass to land provided the entry into the land of another person is not authorized. Trespass to land is rooted in a right to exclusive possession of the land allegedly trespassed. See: Ndukuba vs. Izundu (2007) 1 NWLR (Pt. 1016) 432…”
Per ORJI – ABADUA, JCA (PP. 26 – 27, PARAS. B – C).
See also IDOGBO & ORS v AJAYI (2017) LPELR – 42435 (CA); DOGARA v TELLA & ORS (2016) LPELR – 41607 (CA); JITTE & ANOR v OKPULOR (2015) LPELR – 25983 (SC).

Flowing from my resolution in issue 1 above, judgment was entered in favour of the 1st Respondent and ownership of the disputed land granted to him therefore the construction of the building on the disputed land by the Appellant constitutes an act of trespass.

The lower Court rightly awarded damages against the Appellant.

On the defence of lashes and acquiescence, the law provides that the Appellant has the burden to prove that the 1st Respondent was aware of his acts of ownership by building on her land but she deliberately stood by with a view to reap the benefits thereof.

The 1st Respondent in her statement of claim and written statement of oath stated how she confronted/informed the Appellant of her ownership of the land when his building was still at foundation level. See paragraphs 6 – 9 of the statement of claim and from paragraph 11, the 1st Respondent in furtherance of her claim caused the Appellant to be arrested for continued trespass on the land.
I resolve issue 2 (issues 6 & 7) in favour of the 1st Respondent.

I have “fine combed” the pleadings, exhibits and facts before this Court as gleaned from the record, and I find that the Appellant has not shown how the judgment is against the weight of the evidence.

Having resolved the issues herein against the Appellants, this appeal lacks merit and is hereby dismissed.

The decision of Hon. Justice T. O. ULOHO (MRS) of the High Court of Justice, Orerokpe, Delta State contained in a judgment delivered on the 24th of March, 2016 is hereby affirmed.
Cost of N200,000 is awarded in favour of the 1st Respondent.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the benefit of reading in draft the lead judgment just delivered by my brother, Abimbola Osarugue Obaseki-Adejumo JCA, and I agree with the reasoning leading to the resolution of the issues articulated and the conclusion dismissing the Appeal.

Both title documents were registrable but unregistered title deeds. They were therefore equitable interests which ranked in the order of the priority of their creation. See RANSDEY VS. DALE.

Coupled with the acts of possession, the 1st Respondent’s title matured into or approximates a legal estate which conferred him with the right to sue in trespass against any interference and against all except a person with a better title.

The Appellant had not shown, at the trial, that he was such a person.

The identity of the land was never in issue as far as the pleadings were concerned and so also on the evidence led.

Clearly, the act of trespass on the mutually identified land had been proved by the acts of the entry and usage of land as against a party with a prior existing valid title and who had not acquiesced nor been guilty of laches. Damages was appropriately visited on the Appellant at the suit of the 1st Respondent who was rightly adjudged the owner of the land, by the trial Court.

The Appeal has no merit and I concur that it be dismissed; I abide by the consequential orders made in the lead judgment relating to costs as entered.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother ABIMBOLA O. OBASEKI-ADEJUMO, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal lacks merit.

The land in dispute and the land that the 1st respondent and appellant purchased from the 2nd respondent are one and the same land. The land is well known to the parties and so the appellant cannot be taken seriously in his contention that the 1st respondent did not establish the identity of the land. The appellant and 1st respondent had encountered each other on the land and also went before the Orerokpe Land management Committee over the same land. The said committee visited the land in the presence of appellant and 1st respondent. Where land in dispute is known to the parties, it cannot be said that the identity of the land is in dispute. See HANATU v. AMADI (2020) 9 NWLR (PT. 1728) 115. In any event, the appellant did not put the identity of the land in issue at the trial Court. He cannot now offer any argument to the contrary.

The 1st respondent tendered an unregistered deed of conveyance of the land to him by the 2nd respondent as evidence of the transaction and receipt for money paid for it. This proved that the 1st respondent acquired an equitable interest in the land which is as good as a legal title. See BENJAMIN v. KALIO (2018) 15 NWLR (PT. 1641) 38. Exhibit D3, deed of conveyance of the same land between the appellant and 2nd respondent was also unregistered and was tendered as a document evidencing payment for the land. The equitable interest of the 1st respondent in the land was first in time and therefore prevails over that of the appellant on the basis of the maxim that the earlier in time prevails.

I therefore agree with my learned brother that the appeal lacks merit and I join his Lordship in dismissing the same.

I abide by the order as to costs made in the lead judgment.

Appearances:

F. O. Otobirise For Appellant(s)

G. J. Ikpesu For Respondent(s)