UMA v. OKE (2020)

UMA v. OKE

(2020)LCN/15720(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, June 11, 2020

CA/OW/179/2017

Before Our Lordships:

Raphael ChikweAgbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

AJIKE ODO UMA APPELANT(S)

And

CHIEF DR. LEONARD UKPAI OKE RESPONDENT(S)

RATIO:

0RAL EVIDENCE CANNOT BE USED TO VARY A WRITTEN TRANSACTION

THE GENERAL RULE ON THE TERMS OF AGREEMENT OR CONTRACT

In the case of Lewis Vs Uba (2016) LPELR – 40661 (SC), my lord Okoro JSC said:
“The general rule is that where parties have embodied the terms of their agreement or contract in a written document, as it was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. SeeMrs. O.D. Layade Vs Panalpina World Transport NY Ltd (1996) 6 NWLR (Pt.456) 544; Glabye Vs Balogun (1990) 5 NWLR (Pt.148); Union Bank of Nigeria Ltd Vs Ozigi (1994) 3 NWLR (Pt.333) 385.
See also Ukaobasi Vs Nwabueze (2017) LPELR – 42420 CA; Joseph Vs Fajemilehin (2012) LPELR – 9849 CA; Idufueko Vs Pfizer Products Ltd & Anor (2014) LPELR – 22999 SC; (2014) 12 NWLR (Pt.1420) 96. ITA GEORGE MBABA, J.C.A.

THE IDENTITY OF LAND OR PROPERTY IN DISPUTE

See the case of IroegbuVs Abazie (2017) LPELR – 42617 (CA), which relied on the Supreme Court case of Dakolo &Ors Vs Dakolo &Ors (2011) LPELR – 915 SC, to the effect that:
“In all cases on land, the first task is to identify the land or property in dispute, where the identity of the land in dispute is resolved by each side producing survey plans, supported by credible evidence to satisfy the Court of the land or property in issue. But where land or property iswell known to both sides, the need no longer arises.” Per Rhodes Vivour JSC
In the case of Duru Vs Duru (2017) LPELR – 42490 CA, this Court held:
“… the parties knew the exact portion that was in dispute and the Court was never in doubt it. The law is that where the parties have identified the land in dispute and each knows the land in contention, identity of the land cannot be an issue again. See Bachirawa Vs Abdullahi (2016) LPELR – 41170 (CA); Enyinnaya Vs Otikpo& Anor (2015) LPELR – 25529 (CA); Edjekpo Vs Osia (2007) ALL FWLR (Pt.361) 1617 at 1648; Jimoh&Ors Vs Akande &Ors (2009) LPELR – 8087 SC.” ITA GEORGE MBABA, J.C.A.

THE PARTIES AND THE COURT ARE BOUND BY THE CONTENTS OF THE RECORDS OF APPEAL
By law, both the parties and the Appellate Court, are bound by the content of the Records of Appeal and no party can urge the Appellate Court to consider any speculation as purported part of the Records, or in conflict with the express Records. A party or Counsel is not allowed to impeach the contents of the Records of Appeal or findings of the trial Judge, without substantiating it with evidence on the Records of Appeal. See Gonzee Nig. Ltd Vs NERDC &Ors (2005) LPELR – 1332 (SC); Garuba&Ors Vs Omokhodion&Ors (2011) LPELR – 1309 SC; Texaco Panama Inc. Vs SPDC Nig. Ltd (2002) LPELR – 3146 SC, to the effect that parties and the Court are bound by Records of Appeal, which is presumed to be correct, unless the contrary is proved. ITA GEORGE MBABA, J.C.A.

WAYS OF PROVING TITLE TO LAND BY THE PRODUCTION OF DOCUMENT OR RECEIPT OF PURCHASE

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of Abia State High Court in Suit No. HOH/35/2007, delivered on 17th March, 2017 by Hon. Justice K.C. Nwankpa, wherein his lordship granted the claims of the Claimant (Respondent herein) and dismissed the Counter-Claim by the Defendant (Appellant herein).

At the Court below, the Respondent had claimed, as follows:
(1) A declaration that the Plaintiff is entitled to the grant of statutory right of occupancy to that piece of land called IgboroAgwo situate at paradise area of AkanuOhafia, within the jurisdiction of the Honourable Court and shown in Survey Plan No. SKS/ABDS/018/2007.
(2) The Sum of Five Hundred Thousand Naira (500,000.00) being special and general damages for acts of trespass committed by the defendant on Plaintiff’s said land.
(3) An Order of perpetual injunction restraining the defendant, his agents, workmen or any one claiming through him, from committing further acts of trespass on the said Plaintiffs (sic) IgboroAwo (sic) land. (See Page 52 of the Records)

The Appellant had filed his Statement of Defence and Counter-Claimed, thus:
(1) A declaration that the defendant/Counter-claimant is entitled to the grant of Statutory Right of Occupancy to that piece or parcel of land, called IGBORO AGWO land and situate at the area known as paradise in AkanuOhafia within the jurisdiction of the Honourable Court as shown in the defendant’s property Survey Plan No. COU/AB9/94, made by U.O. Ukairo, registered Surveyor on 31/10/94.
(2) The Sum of Two Million (N2M) being damages for acts of trespass committed by the Plaintiff on defendant’s land.
(3) An Order of injunction permanently restraining the Plaintiff, his agents, privies and workmen or any one claiming through him further acts of trespass on the defendant’s aforesaid IgboroAgwo land. (See Pages 70 to 71 of the Records of Appeal)

After hearing the case and considering the evidence and addresses of Counsel, the trial Court held for the Respondent, as follows:
“Therefore the identity of the land in dispute shown to the Court at the locus by the Claimant tallied with the identity given in evidence by his witnesses. Having resolved the issues of (1) whether OnuohaOkorie (DW1) sold land to Defendant at IgboroAgwo in the positive (sic) in favour of the Claimant and having also resolved the issues of whether the land Onuoha Okorie sold to the Claimant is the land in dispute, and is part of the land Defendant is claiming to have initially acquired from Johnson OwoMba for his building project which is however false, and having shown that the issue of the identity of the land in dispute was clearly established by Claimant with his witnesses, I have no other option than to state that the Defendant’s encroachment into the land in dispute, in the guise that it is his legitimate property, is unlawful and amounts to trespass for which Defendant will be held liable. In his claim for damages for trespass against the Defendant, Claimant claimed both special and general damages… The total amount for special damages claimed by the Claimant is N45,470.00. It should be pointed out that the law is that special damages should be strictly proved and that particulars of each items of claim must be given and proof to how the amount claimed was arrived at should be given. In the instant case, claimant included in the special damages cost of melon fruits as N15,000, without stating the quantity of melon involved and the bases (sic) on which the sum of N15,000 was arrived at, so also in the case of cost of damaged cassava expenses put at N20,000. I am strongly of the view that the two items included in the list of items for special damages did not pass the acid test of strict proof required of a claim for special damages. I will therefore not Countenance them as proved… Consequently, the amount claimed by the Claimant as special damages reduced to N10,470.00 which Claimant gave their particulars and cost of each unit… I hereby award the sum of N400,000… as general damages against the Defendant for trespass… bringing the total amount of damages awarded against the Defendant for his trespass into the land in dispute, found to belong to the Claimant to N410,470.00 (Four Hundred and Ten Thousand, Four Hundred and Seventy Naira)… I hereby declare the Claimant entitled to the grant of the Statutory Right of Occupancy to the piece/parcel of land called Igboro Agwo, situate at Paradise area of AkanuOhafia in the jurisdiction of the Honourable Court shownin Exhibit L – dispute Survey Plan of the Claimant…” (See pages 357 – 359 of the Records of Appeal).

Dissatisfied with that judgment, Appellant filed this Appeal on 28/3/2017, as per the Notice and grounds of Appeal on pages 361 to 365 of the Records. He filed his brief of arguments on 4/10/17, which was deemed duly filed on 29/11/2018 and distilled five (5) Issues for the determination of the Appeal, as follows:
(1) Whether the lower Court was right when it entered judgment for the Claimant/Respondent despite the fact that the Claimant failed to prove his root of title to the land in dispute? (Ground 1)
(2) Did the Claimant prove the identity of the land in dispute to entitle him to judgment? (Ground 2)
(3) Did the trial Court not misdirect itself, when it held that the measurement of the land during visit to locus accorded with the area of land stated in the Claimant’s alleged document of purchase of the land? (Ground 3)
(4) Did the Defendant/Counter-claimant prove his case upon the preponderance of evidence to have entitled him to judgment. (Ground 4)
(5) Is the entire judgment not altogether perverse? (Ground 5).

The Respondent filed his brief of arguments on 20/12/2017 which was also deemed duly filed on 29/11/2018. The Respondent appeared to have adopted the 5 Issues distilled by Appellant for the determination of the Appeal. Appellant filed Amended Reply Brief on 8/1/2019, which was deemed duly filed on 30/1/2020.

Arguing the Appeal on 17/3/2020, Counsel for Appellant, Udo Uduma Esq, (who settled the brief), on Issue 1, said that Claimant claimed to have bought the land in dispute from Onuoha Okorie Okpan, who vehemently and consistently denied selling any land to the Claimant; that Onuoha Okorie had testified for the Defendant (Appellant) as DW1 and denied making the Exhibit A (Receipt of land purchase). Counsel said that the signature on Exhibit A, which the Claimant purports to be that of Onuoha Okorie Okpan, was not the same as his (Onuoha’s) signature on his sworn statement on oath, filed in the registry of the Court. Counsel said that Awa Okorie Okpan, elder brother of Onuoha Okorie, had testified as CW1 and claimed to have prepared the Exhibit A; he said that CW1 was a tainted witness, in that he worked for the Claimant’s family and had to give the evidence to save his job. Counsel said that CW1 said he signed Exhibit A as both the maker and witness; that CW1’s signature was challenged and he made a specimen signature (Exhibit B) for the Court; that the Exhibit B was clearly different from CW1’s signature on Exhibit A. Counsel said CW1 admitted that he was not a witness to the alleged gift of land by Osonwa Aja to Onuoha Okorie, and that the Defendant bought the land from Johnson OwohMba (which land hitherto belonged to Osonwa Osonwa); Counsel said that under cross examination, CW1 said that the land of the defendant shared boundary with the land of the Claimant, but made a double speak when he also said that the defendant’s land does not share boundary with the land of Claimant.

Counsel said that the Claimant had profusely damaged the credit of Onuoha Okorie, his alleged vendor, whom he held out as a fraudulent person, who embarked upon indiscriminate sale of land, which did not belong to him; that by damaging the credit of his said vendor, the claimant inadvertently, did severe damage to his root of title and this was made worse by Onuoha Okorie’s disclaimer of the alleged sale of land to the claimant. He (Counsel) argued that the mere production of an alleged instrument of grant of the land by the Claimant was not conclusive proof that the document was valid and had transferred the land in dispute to the Claimant. He cited and relied on the case of the Mal Sani Kwanni VS Zayyami Marfa (2017) 8 NWLR (Pt.156) 1 at 4 – 5, where this Court held that:
“The production and reliance on instrument of grant carries with it the need for the Court to inquire into some or all of a number of questions…
(a) Whether the document is genuine and valid?
(b) Whether the document has been duly executed and registered?
(c) Whether the grantor has the capacity and authority to make the grant; and
(d) Whether it had the effect claimed by the holder of the instrument?”

In this case, Counsel said DW1 (the alleged maker of the document) had denied making the sale, and denied ever owning the land, personally; that the land claimant claimed to have bought from him (DW1) belonged to his Umueze maternal family, over which he was a mere caretaker, without capacity and authority to sell.

Counsel said the Defendant on the other hand, had proved that he bought the land from Johnson OwohMba, and established the root of title of his alleged vendor, when he gave evidence that Johnson Owoh Mba bought from Osonwa Osonwa, who in turn, inherited from his father Osonwa Aja, who had earlier purchased his entire Igboro Agwo land from Umuobio maternal family of Rev. Eke Ochea, aka Rev. Ekason, who were the original owners. Counsel said the Defendant’s Vendor, Johnson Owoh Mba, testified as DW2 and tendered Exhibit O, made between him and the defendant. He said that the Claimant claimed that defendant bought his land from the relations of UkaUduma UkaEkwe but failed to prove same.

Counsel said the law is trite, that a person who claims title to land is bound to prove his root of title to the satisfaction of the Court. He relied on Dudu Addah& 7 Ors Vs Hassan SaliUbandawaki (2015) 7 NWLR (Pt.1458) 325 at 328; Idundun Vs Okumagba (1976) NMLR 200; Mogaji Vs Cadbury (Nig) Ltd (1985) 2 NWLR (Pt.7) 393, on the five ways of proving title to land with specific reference to proof by production of title document.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Counsel said both parties to this case relied on documents of purchase in proving their respective cases; that a Claimant who claims to have bought land from a vendor, must established the fact of sale by that vendor, and the root of title of that vendor; that failure to do so will lead to dismissal of his claim – Prince Ngene Vs Chike Igbo & Anor (2000) 75 LRCN 451.

Counsel again said that the Claimant failed to establish the sale of the land to him by Onuoha Okorie, as the latter denied the sale in Exhibit A – vehemently; he said that Exhibit M, which Claimant relied on to prove payment to Onuoha Okorie, cannot avail him. He also argued that the Claimant failed to show how Onuoha Okorie got the land; that Claimant had alleged that Onuoha Okorie got the land as a gift, made intervivos, to him by Osonwa Aja, under Customary Law; that it was his duty to lead evidence to establish that gift to Onuoha Okorie, but he failed. Counsel relied on Isaac Nwafor Odipendi Vs Ndubuisi Okolie & Anor (2010) 13 NWLR (Pt.210) 45. Counsel said the Claimant did not plead any witness of the alleged gift of land to Onuoha Okorie, who rather denied such agift to him. He urged us to resolve the issue for Appellant.

On Issue 2, Counsel said that from the facts presented, the claimant and his witnesses did not lead evidence in relation to the identity of the land, both in Court and at the locus. He relied on the case of the Adegbo V Ogbanje (2014) 10 NWLR (Pt.1416) 514, on the need for a claimant to prove the identity of the land he claims. He also relied on Addah Vs Ubandawaki (supra); Oba JimohOkunade (Kayode II) Vs Oba Olayiwola Olawole (2014) 10 NWLR (Pt.1416) 207.

Counsel said that the boundaries pleaded by the Claimant in this case and indicated in the Survey Plan filed by him did not correspond with the boundaries presented in evidence presented by the Claimant and his witness, CW2; that the evidence of the boundaries by the two witnesses conflicted with each other and with the Survey Plan and pleadings. He added that the evidence led by the Defendant was more consistent, with respect to the identity of the land.

On Issue 3, Counsel said the trial Court misdirected itself, when it held that the measurement of the land during visit to locus, accorded with the area of land stated in the claimant’s document of alleged purchase of the land. He admitted that during the visit to locus, the Court measured the area of land as shown by the Claimant; that it was “165 feet by 66 feet by 95 feet by 120 feet by 120 feet” and this was recorded in the record book by the trial Judge in the presence of the parties. He however, stated that the claimant’s document of purchase clearly stated that the land he bought measured 60 feet by 120 feet. He submitted that the misdirection of the trial Court on the issue of measurement of the land led to a perverse decision. He relied on the case of Oladapo Olarenwaju Vs The State (2017) ALL FWLR (Pt.888) 209 at 213, on what to do with a perverse findings of Court.

On Issue 4, Counsel said the Defendant (Appellant) proved his Counter-claim by preponderance of evidence to entitle him to judgment; that he led a more credible evidence than the Claimant; that CW1, CW3 and CW4 held out themselves as witnesses who lacked credibility, as they lied brazenly in Court; that Exhibits B, E and F showed that they lied on oath, and their evidence added no value to the case of the Claimant. Counsel further said that the evidence of the CW2 and CW5 were contradictory on material facts including the identity of the land. He said that the evidence of CW6 was self contradictory; that on the whole the case of the Claimant wobbled, was lame and unattractive, while that of the defendant (Counter-claim) was founded on consistent, cogent and credible evidence.

On Issue 5, Counsel said the entire judgment was perverse, and he relied on the case of Adegbo Vs Ogbanje (2014) NWLR (Pt.1416) 541 at 545, as to what makes a judgment perverse:
“A Court’s decision will be held to be perverse, where:
(a) It is speculative and not based on evidence
(b) The Court shut its eyes to the obvious; and
(c) The Court took into account matters which it ought not to have taken into account.
Where the decision is perverse, an appellate Court has a duty to re-evaluate and re-assess same.”

Counsel said it was intriguing that the learned trial Judge failed to make use of the evidence he obtained at the first visit to the locus; he said it was apposite to what the trial Court himself recorded regarding his inability to deliver the judgment at the scheduled date, which was:
“However, at the time the Court was about to deliver the judgment, I found it necessary to visit the locus again, as a result of the fact that I needed to clarify some facts regarding the identities of the two pieces of land that featured prominently in evidence after my review of the evidence adduced on both sides. Thus, the Court went back on locus with the parties on 3rd February, 2017 and thereafter adjourned the case for judgment.” (Pages 317 – 318 of the Records of Appeal)

Counsel said the learned trial Court did a summersault and stated, thus:
“The Court adjourned for locus. The Court could not make use of what transpired during the first locus, because of the time lag from the time of the locus to the time of writing the judgment. I therefore, decided to go back to the locus with the parties in the interest of justice. The basic purpose of going to the locus is for the Court to see for itself the plots of land that were highlighted in evidence.” (Page 33 of the Records).

Counsel added that the figures reflected in the judgment, as the measurement of the lands, were not what was given in evidence at the locus on the second visit made on 3/2/2017, which was recorded in the Court record book, before the parties; he said that the figures contained on pages 282 to 283 of the Records were not what was led in evidence during the visit to the locus. Counsel urged us to order for the production of the original record book. He relied again on the case of Adegbo Vs Ogbanje (supra) on the elements of perverse judgment, and urged us to resolve all the Issues for Appellant.

Responding, Counsel for the Respondent, Chief E.U. Ndukwe Esq, who settled the brief, answered Issue 1 in the affirmative, saying that the trial Judge was right to enter judgment for the Respondent. Counsel said the Respondent was emphatic that he bought the land from DW1 (Onuoha Okorie Okpan) and had discharged the evidential burden thereon to entitle him to the judgment. Counsel relied on the evidence of CW1 (DW1’s Senior brother) who witnessed the sale and even wrote the memorandum of receipt (Exhibit A) in 1986. CW1 explained the circumstances that led to the sale of the land by the DW1; that it was to raise funds to attend to their mother, whowas sick; CW1 showed that the land was a gift to his brother, personally, by NnaOsonwa Aja, their material uncle. Counsel also founded on the evidence of CW2 (Obasi Osonwa), who said he knew about the sale of the land to Respondent, and that it was his late father (NnaOsonwa Aja) that gave Onuoha Okorie the land, from the vast piece of land he purchased at IgboroAgwo; CW3 and CW4 also identified the land and confirmed the sale of same to Respondent by DW1. CW5 (Respondent), as owner in possession of the land, had applied for and made payment for the requisite fencing permits from Ohafia LGA, which enabled him to build a dwarf fence round the land – Exhibits G, H, J & K, referred.

Counsel said Appellant (DW3) and DW1 – Onuoha Okorie – had contended that the Respondent did not buy any land from DW1 and had no land in IgboroAgwo. Counsel referred us to the well considered evaluation of the trial Court and its findings on pages 346 – 347 of the Records, which he said proved the Appellant wrong. Counsel said Appellant had relied on the ill-advised decision of the DW1, to deny the sale, but that the denial failed, as the trialCourt had sufficient materials to evaluate the truth of the matter, and applied the principle in the case of Mal Sani Kwanni Vs Zayynu Marfa (2017) 8 NWLR (Pt.156) 1.

On Issue 2, whether the Respondent proved the identity of the land, Counsel answered in the affirmative. He said that apart from the painstaking evaluation of the evidence, the Court also visited the locus and saw the land. Counsel said while Appellant denied buying any portion of land of late Uka Uduma Ukaekwe, his star witness, DW1 (Onuoha Okorie Okpan) contradicted him materially on this; and that, during the visit to the locus, it was seen that these pieces of land lay one after the other on the same stretch of land, i.e. land of the Claimant (bought from DW1) formally owned by Osonwa Osonwa, and the land of Uka Uduma Ukaekwe.

Counsel said the lies of Appellant was fully exposed by Exhibit Q, tendered by him (Appellant) on page 395 of the Records – proceedings of traditional arbitration. Counsel said the Court found that the evidence of Appellant in the Exhibit Q, tallied with that of Obasi Osonwa (CW2), and also found that the defendant (Appellant) stated in the said exhibit Q which agreed with the evidence of CW2.

On Issue 3, alleged misdirection, Counsel said the trial Court did not misdirected itself and that the conclusion reached was not perverse; on the contrary, he said that the trial Court painstakingly evaluated the entire evidence before it and made clear findings on same and arrived at its decision, based on the meticulous evaluation and findings. He relied on Makinde Vs Akinwale (2000) 2 NWLR (Pt.645) 435; Awaogbo Vs Eze (1995) 1 NWLR (Pt.372) 393.

On the Issue of the measurement of the land by the Court at the locus, Counsel said the complaint of Appellant did not resolve the issue, whether or not Appellant claimed portion of land fell within the measured area, nor did it change the lie of Appellant who pleaded and insisted that he only bought the land of Osonwa Osonwa and no more, whereas evidence showed he bought the land of Osonwa Osonwa and part of the land of Uka Uduma Ukaekwe.

On Issue 4, Counsel answered in the negative, saying that the trial Court was right to dismiss the Counter – Claim, and that Appellant failed to prove his claim, especially as the visit of the Court to the locus became a further eye opener of the antics of the Appellant in the case.

On Issue 5, whether the decision of the trial Court was perverse, Counsel answered in the negative. He said that the transparency of the trial Court was captured further on page 330 of the Records, when it had to go on a visit to the locus again. On the allegation that the measurement of the land taken at the locus was not what was stated on pages 282 to 283 of the Records of Appeal, Counsel said the alleged records book of the trial Court must be known to Appellant alone. He added that what transpired was in the full glare of all the parties and that the case of Adegbo Vs Ogbanje (supra) has no bearing to this Case.

RESOLUTION OF THE ISSUES
I noticed that after responding to the five Issues raised by the Appellant, Learned Counsel for the Respondent again, tried to formulate 4 other Issues (which actually were the same as Appellant’s issues) and advanced another round of arguments on pages 15 to 22 of the Respondent’s brief thereon. That appears to be strange, immature and unacceptable. A Respondent is however entitled to formulate his issues for determination of an Appeal, which must be in line with the grounds of Appeal as framed by the Appellant (except where he files a Cross Appeal or a Respondent’s Notice). See Okolocha Vs Nwani (2018) LPELR – 46013 CA; Eke Vs Ogbonda (2006) LPELR – 1075 (SC); Yusuf & Anor Vs State (2019) LPELR – 46945 (SC); Emesonye Vs The State (2016) LPELR – 40550 (CA). But where a Respondent elects to adopt the Issues as distilled by the Appellant, either directly or in a modified form to argue the Appeal, he should stay on/with that and proffer his arguments. He cannot be allowed to wander about to other issues after having based his arguments on the Issues as distilled by the Appellant.

I have seen the Reply brief by Appellant which appears to be a rehash of the arguments earlier made in the Appellant’s brief, which is not what a Reply brief is meant for. A Reply Brief is meant to contest fresh issues of law raised in the Respondent’s Brief, which were not contemplated in the Appellant’s brief, and if not responded to could mislead the Appellate Court into avoidable errors. See Aduba & Ors Vs Aduba (2018)LPELR – 45756 CA; Ecobank Plc Vs Honey Well Flour Mills Plc (2018) LPELR – 45124 (SC); Oguanuhu & Ors Vs Chiegboka (2013) LPELR – 19980 SC; Mathew Vs State (2019) LPELR – 46930 (SC).

I shall consider this Appeal on the Issues distilled by the Appellant, and adopted by the Respondent. I shall however, take the Issues together as they appear to be inter-related, calling for re-evaluation of the evidence, whether the Respondent in fact proved his case, identified the land in dispute and proved better title, as against the Counter-claim of the Appellant.

It must be stated from the onset that the claims by the adverse parties to the land in dispute were founded mainly on title to the land by production of document or receipt of purchase. That being one of the five ways of proof of title to land, the parties, particularly Claimant (Respondent), had the duty of producing the title documents and leading credible evidence to establish his title and that his Vendor, in fact, transferred valid title to him, and that he (Vendor) had the title to transfer, via the sale of the parcel of land to him. Appellant had equal duty to establish his counter-claim, as pleaded, by means of the document of title relied on. In the circumstance, the party with better title must win. See Orjiakor Vs Mbachu (2019) LPELR – 47713; Uchendu & Anor. Vs Nwanne (2018) LPELR – 44992 CA; Tanko Vs Echendu (2010) LPELR – 3135 SC.
The cases on the 5 ways of establishment of root of title to land are replete and have been cited by the parties, including the leading cases of Idundun Vs Okumagba (1976) NMLR 200; Addah & Ors Vs Ubandawaki (2015) 7 NWLR (Pt.1458) 325; Mogaji Vs Cadbury (Nig) Ltd (1985) 2 NWLR (Pt.7) 393.
Where a party relied on documents of title, like purchase agreement, grant or conveyance, etc; to establish his title on the land, the onus is on him to produce the document(s) which must be credible, cogent and duly executed for that purpose as mere production of document of title may not suffice. See the case of Adegbo Vs Ogbanje (2014) NWLR (Pt.1416) 541 at 545. In the case of Apampa & Ors Vs Ogungbemi (2017) LPELR – 43264 (CA), it was held:
“It is not in doubt that production of documents of title is one of the five (5) ways of proving titleto land in dispute… It does not however, mean that once a document of title is produced, it amounts to conclusive prove (sic) of title. The party producing and relying on such document need prove more than that. He must proceed to plead and trace the root of title of his grantor or vendor. The Courts have held that, once a document of title is tendered and admitted in evidence, the Court adjudicating on the dispute must carefully scrutinize and evaluate the document, with a view to determining whether:
(a) The document is genuine and valid;
(b) The document was (sic) been duly executed, stamped and registered;
(c) The grantor had the authority and capacity to make the grant;
(d) The grantor, in fact, had what he purported to grant;
(e) The document has the effect claimed by the holder of the document.
It would be seen therefore, that mere production of documents of title is not conclusive proof of title. See Akinduro Vs Alaya (2007) 6 SC (Pt.2) 120 at 134 – 135; Kyari Vs Alkali (2001) 11 NWLR (Pt.724) 412; Romaine Vs Romaine (1992) 4 NWLR (Pt.238) 650 at 662; Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt.1184) 265 and Ayanwale Vs Odusami (2011) LPELR – 8143.” SC Per Tsammani JCA.
See also Korie Vs Ifenkwe (2018) LPELR – 44987 (CA), where we held:
“Of all the five known ways of acquiring land, I think the most potent and less stressful is by production of document of title. The five ways of proving title are richly stated in our laws. See Idundun Vs Okumagba (1976) 9 – 10 SC 227; Atanda Vs Ajani (1989) NWLR (Pt.111) 511; (1989) LPELR – 589 (SC); Ayorinde & Ors Vs Sogunro&Ors (2012) LPELR – 7808 SC. We however, know that mere production of document of title, especially certificate of occupancy is not automatic evidence of proof of title, as the same must support the case of or claim of the Plaintiff…”

In this case at hand, evidence from the Respondent and his witnesses shows that the land in dispute was sold to him (Respondent) by one Onuoha Okorie Okpan (DW1), and the memorandum of receipt of payment made and signed by him (DW1) in the presence of witnesses, including his (DW1) elder brother, Awa Okorie Okpan, who gave evidence as PW1 (CW1). The memorandum evidencing the payment for the land, wastendered and admitted as Exhibit A. The Respondent also tendered Exhibit M as evidence of payment of the said sum of money to the Vendor (DW1). In his evidence, the CW1 (DW1’s elder brother) told the Court that the land belonged to the DW1, personally, the same having been given to him by their maternal uncle, Nna Osonwa Aja (now late), intervivos; he added that the land was sold because of the ill health of their mother, to raise funds for her treatment. See pages 197 to 198 of the Records of Appeal, where CW1, Awa Okorie Okpan, stated as follows:
“… I know the Plaintiff. I also know the Defendant. The Plaintiff is of the same paternal compound with me. Myself and the Defendant belong to the same maternal family. I know the land in dispute between the Plaintiff and the Defendant… The name is Igboro Agwo. The owner of the land in dispute at the present period of moment is the Plaintiff. The Plaintiff bought the land from my junior brother called Onuoha Okorie. The Plaintiff bought the land in 1986 when my mother was sick and we needed money for her treatment. The Plaintiff bought the land at the sum of N800… The sale transaction was reduced in writing. I was among the persons that measured out the land when it was being sold to the Plaintiff. The other persons that followed were Onuoha Okorie (the seller) and the Plaintiff (Dr. Leonard Oke). When the Plaintiff paid for the land, a receipt was issued to him. I wrote the receipt given to the Plaintiff for the money he paid for the land. I signed the receipt as witness. Our late mother also signed and our brother Onuoha Okorie. I can recognize the receipt if I am shown the document.

The memorandum of agreement showing the N800 paid by the Plaintiff to Onuoha Okorie Okpan for the land was the Exhibit A. That evidence was not shaken during cross examination, rather the witness (CW1) revealed, under the cross examination, that the land was given to DW1 by their maternal uncle while alive; that their said uncle bought a wider area of the land called IgboroAgwo but carved out that portion to the brother, Onuoha Okorie. CW1 also revealed that after selling the land and letting Plaintiff into possession, who planted on it, Onuoha Okorie went back to the land and caused trouble, causing the destruction of the Plaintiff’s crops, and was arrested by the Police and charged to Magistrate’s Court. See pages 201 – 203 of the Records.

PW2 (or CW2) Obasi Osonwa Aja, son of NnaOsonwa Aja, who gave the land to Onuoha Okorie, confirmed the account of the CW1; that Plaintiff was the owner of the land, having bought same from Onuoha Okorie Okpan; he said: “Onuoha got the land from Chief Osonwa Aja who was my father. My late father was uncle of Onuoha Okorie Okpan. My late father when he was a life marked out this portion of land from the vast expanse of Igboro Agwo land and gave it to Onuoha Okorie Okpan as a gift for him to build his house.” (See Page 208 of the Records).

The above evidence was not shaken by cross examination and was also supported by the other witnesses of the Respondent; and the trial Court made appropriate findings thereto, when it said:
“Furthermore, by the evidence of the Defendant and DW1, the land of Umueze maternal family at IgboroAgwo does not lie immediately after the land of Osonwa Osonwa Aja (deceased) which Owo Mba acquired and sold to Defendant and which is the subject matter of the arbitrationwhich its proceedings are in Exhibit Q. Therefore, that 3rd segment of the land Defendant stated to have acquired from Umueze maternal family through Onuoha Okorie (DW1) cannot be any other land but that land Claimant claimed Onuoha Okorie (DW1) sold to him, which CW1, CW2, CW3 and CW4 confirmed Onuoha Okorie.
(DW1) sold to the Claimant and it is that piece/parcel of land that the late father of Defendant in his capacity as head of the maternal family, which himself and Onuoha Okorie belonged, wrote and complained in connection within Exhibit S, on the bases of which I came to the conclusion that Onuoha Okorie (DW1) sold land at IgboroAgwo to the Claimant. That land at Igboro Agwo, which Defendant’s late father strongly rebuked Onuoha Okorie (DW1) for transacting with the Claimant is no other than the land in dispute, which lies next after the land of late Osonwa Osonwa Aja which Johnson OwoMba acquired and eventually sold to the Defendant. I am fortified in this conclusion I reached by the evidence of CW2, which showed that what Defendant acquired at Igboro Agwo for his building project are the lands of Uka Uduma Ukaekwe and that of Osonwa OsonwaAja. That is also the evidence of DW1.” See page 353 of the Records of Appeal.

It is rather very sad and annoying that the DW1 (Onuoha Okorie Okpan) who sold the land, given to him by his maternal uncle, NnaOsonwa Aja, to raise funds for the treatment of his mother in 1986, and who had made a memorandum about the sale (Exhibit A) and issued the receipt (Exhibit M) acknowledging the payment of N800 by the Claimant (Respondent), and had let Respondent into possession, opted to deny the sale and brazenly engaged in giving adverse evidence on oath, in Court, trying to deny the obvious. Whoever counseled or misled him(DW1) to take to such ignoble and criminal path, actually set out to destroy him (DW1), in my opinion. And for him (DW1) to be so gullible enough, to think he can just deny and disclaim the sale he made, in writing, shows how mean and low he (DW1) can be. He had even tried to resell the same land to another person, as per Exhibit C.

By our laws, an oral evidence cannot be used to defeat, supplant, discount, deny, vary or disown a written transaction, of document or contract. See Champion Breweries Plc Vs Specialty Link Ltd & Anor (2014) LPELR – 23621 CA:”… Also by law, a written contract agreement cannot be varied, explained or defeated by a purported oral agreement of the same parties (or of any 3rd party) over the written agreement.”
In the case of Lewis Vs Uba (2016) LPELR – 40661 (SC), my lord Okoro JSC said:
“The general rule is that where parties have embodied the terms of their agreement or contract in a written document, as it was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. SeeMrs. O.D. Layade Vs Panalpina World Transport NY Ltd (1996) 6 NWLR (Pt.456) 544; Glabye Vs Balogun (1990) 5 NWLR (Pt.148); Union Bank of Nigeria Ltd Vs Ozigi (1994) 3 NWLR (Pt.333) 385.
See also Ukaobasi Vs Nwabueze (2017) LPELR – 42420 CA; Joseph Vs Fajemilehin (2012) LPELR – 9849 CA; Idufueko Vs Pfizer Products Ltd & Anor (2014) LPELR – 22999 SC; (2014) 12 NWLR (Pt.1420) 96.

The DW1’s elder brother, Awa Okorie Okpan, and the CW2 (Obasi Osonwa) should therefore be greatly appreciated for standing for the truth, in the case, to protect the transaction DW1 had with the Respondent, as shown in Exhibits A and M. The DW1 may have been misled to think that by denying and disclaiming the sale transaction in Exhibit A in Court, the documents he signed to acknowledge the sale and payment for the land would cease to be or be invalidated. That was an evil scheme by DW1, in my view. Exhibit A, which the Respondent and DW1 (Onuoha Okorie Okpan) signed to acknowledge receipt of payment for land transaction between them, is carried on pages 370 to 372 of the Records of Appeal. It acknowledges land sale transaction by the said DW1 to the Respondent on 21st March, 1986, for the sum of N800.00. Paragraph 2 of the clauses of Exhibit A, states:
“This agreement witnesses that in consideration of the sum of N800.00 (Eight Hundred Naira) only now paid to the vendor (Mr. Onuoha Okorie Okpan) by the Purchaser (Dr. Leonard UkpaiOke) (the receipt where of the vendor acknowledges), the Vendor, as beneficial owner, has conveyed unto the Purchaser his plot of land situate at “IGBORO AGWO”.” (Page 371 of the Records)

There is evidence that the Respondent was let into possession of the plot of land, measuring 120 feet by 60 feet. CW1 (Awa Okorie Okpan and the Vendor’s Senior brother) and their mother signed the Exhibit A, as witnesses for the DW1. There is also evidence that the Respondent took possession of the plot of land and obtained the necessary permits to fence it round (see Exhibit G) and constructed a fence on the land. He also planted on the land. And when the DW1 and Appellant (Ajike Udo Umah) trespassed on the land and damaged the crops, the Respondent caused the trespassers to be arrested and prosecuted at the Magistrate’s Court for malicious damage – See for instance Charge No. MAR/17C/2009,which favoured the Respondent. (Pages 378 – 380 of the Records the Exhibit E, therein).

The Respondent had acknowledged that Appellant had land in the area, but Appellant’s land was different from his (Respondent’s) land, but shared common boundary. That I suppose, necessitated the visit to the locus by the trial Court, which made the following finding:
“At the locus, CW2 showed the Court where the land Defendant bought from Uka Uduma started and half of the land Defendant did not buy. He also showed where the land Defendant bought from Johnson OwoMba which was originally the land of his late brother… CW2, lastly, showed the land in dispute which immediately started where the land which he said Defendant bought from OwoMba was said to end. The land was measured and it accorded with the measurement expressed in Exhibit A. Claimant/CW5agreed it is the land he bought from Onuoha Okorie Okpan in dispute between him and the Defendant. When the Court asked him about the boundary, he stated in his evidence in Court that the land he bought from Onuoha Okorie shared boundary with the land of UkaUdumaUkaEkwe at the Southern end, instead of the land of OsonwaOsonwa Aja, which Defendant said he later acquired from Johnson OwoMba. Claimant/CW5 stated that since he bought the land, he left it for his brother and mother and later his Aunt to farm, and that led to the mistake in the boundary he stated… At the locus too, CW1, CW3 and CW4 affirmed the boundary of the land in dispute as stated by CW2 in Court during his evidence and at the locus…
For the Defendant, he showed the entire long stretch ofland, which CW2 showed as having three segments, as one piece/parcel of land which originally belonged to OsonwaOsonwa, which was said to have been sold by OsonwaOsonwa to Johnson OwoMba as the plot of land he bought at the IgboroAgwo area. He did not agree he bought any land from the land of UkaUdumaUkaEkwe which CW2 showed the Court. DW1 Onuoha Okorie only stated that the land of Umueze maternal family that comprised the two plots is there but when asked to show it to the Court, he showed a parcel of land now in possession of some other persons… DW1 himself was emphatic that Defendant bought land from UkaUdumaUkaEkwe’s family, which he merged with the land he bought from Johnson OwoMba, which was originally land of late OsonwaOsonwa. He said the pieces of land which Defendant merged together formed the land in dispute. Having declared the identities of the lands that featured in the proceedings, the case was adjourned for judgment…” (See pages 371 to 372 of the Records of Appeal)

With the above evaluation and findings by the trial Court, I think there was no more issue of identity of the land in dispute, especiallyas the trial Court had visited the locus and identified the land in dispute, to be the land of the Respondent, sold to him by the DW1. The Court also identified the land of the Defendant to be separate from the one in dispute, but sharing boundary with the land in dispute. The trial Court also found that the land in dispute, measured by it (the Court) at the visit, agreed with the measurement stated in Exhibit A. There can therefore be no more issue of identity of the land in dispute, with such clear findings and location of the land by the parties and by the Court. Identity of land cannot be an issue, in a case where the disputed land is clearly marked and known. See the case ofIroegbuVs Abazie (2017) LPELR – 42617 (CA), which relied on the Supreme Court case of Dakolo &Ors Vs Dakolo &Ors (2011) LPELR – 915 SC, to the effect that:
“In all cases on land, the first task is to identify the land or property in dispute, where the identity of the land in dispute is resolved by each side producing survey plans, supported by credible evidence to satisfy the Court of the land or property in issue. But where land or property iswell known to both sides, the need no longer arises.” Per Rhodes Vivour JSC
In the case of Duru Vs Duru (2017) LPELR – 42490 CA, this Court held:
“… the parties knew the exact portion that was in dispute and the Court was never in doubt it. The law is that where the parties have identified the land in dispute and each knows the land in contention, identity of the land cannot be an issue again. See Bachirawa Vs Abdullahi (2016) LPELR – 41170 (CA); Enyinnaya Vs Otikpo& Anor (2015) LPELR – 25529 (CA); Edjekpo Vs Osia (2007) ALL FWLR (Pt.361) 1617 at 1648; Jimoh&Ors Vs Akande &Ors (2009) LPELR – 8087 SC.”

I think Appellant’s Issue 3 and submission of Counsel thereon, that the measurement of the land shown on pages 282 – 283 of the Records, was not what the Court recorded in its record book, amounted to a challenge of the Records of Appeal. Counsel had argued on pages 18 – 19 of the Appellant’s Brief as follows:
“During the second visit, the Court measured the area of land as shown by the Claimant and his witness and the measurement showed that theland claimed by the Claimant measured ”165 ft by 66ft by 95ft by 120ft by 60ft.” This was recorded in the record book by the trial Judge in the presence of the parties. The Claimant’s alleged document of purchase clearly states that the land allegedly bought by the Claimant measures 60ft by 120ft. This misdirection of the lower Court on the issue of the measurement of the land led to a perverse decision. The Appellant shall during hearing of the Appeal urge that the original record of proceedings be brought to the Court of Appeal for inspection, for the purpose of determining the real measurement of the land as demonstrated in evidence and recorded by the learned trial Judge during the visit to the locus… Your Lordships are most humbly invited to reverse the findings of fact made by the trial Court in favour of the Claimant on the measurement of the land as same is not supported by the unequivocal evidence before the Court as recorded by the trial Judge during trial.”

That appeared to be an attempt to malign the Court or impeach the integrity of the trial Judge, unfortunately. On page 331 of the Records, the trial Court hadobserved:
“The land was measured and it accorded with the measurement expressed in Exhibit A.”

And on page 282 of the Records the following appeared:
“PW2 now shows the land of the Claimant measured as follows: 66 wide x 122 (sgd) Judge and 951 (sic) 120.” (The ‘951’ appears to have meant 95’ and was strange in the context).

By law, both the parties and the Appellate Court, are bound by the content of the Records of Appeal and no party can urge the Appellate Court to consider any speculation as purported part of the Records, or in conflict with the express Records. A party or Counsel is not allowed to impeach the contents of the Records of Appeal or findings of the trial Judge, without substantiating it with evidence on the Records of Appeal. See Gonzee Nig. Ltd Vs NERDC &Ors (2005) LPELR – 1332 (SC); Garuba&Ors Vs Omokhodion&Ors (2011) LPELR – 1309 SC; Texaco Panama Inc. Vs SPDC Nig. Ltd (2002) LPELR – 3146 SC, to the effect that parties and the Court are bound by Records of Appeal, which is presumed to be correct, unless the contrary is proved.

In the case of Abaribe Vs Nkwonta&Ors (2015) LPELR – 25701 (CA), this Court also added that:
“The parties and appellate Court are bound by the records of appeal on any issue in controversy, and cannot go outside the clear facts on the records, to speculate on any issue. See the case of Orok Vs Orok (2013) LPELR – 20377 (CA).

I cannot therefore, find any perversity in the decision of the trial Court that the measurement of the plot of land in dispute at the locus, accorded with the measurement expressed in the Exhibit A, and I think the identity of the land sold by DW1 to Respondent was established by the evidence, notwithstanding the slight differences in the measurements, which could have been due to boundary adjustments or problem of accuracy of the measurement. It was obvious that the real problem between the parties appeared to be about boundaries. But the fact of the disputed land being that of the Respondent was established, just as the fact of Appellant’s land sharing boundary with the Claimant’s land in the same area – IgboroAgwo – was also established. Appellant should confine himself to his said portion ofland and steer clear the land in dispute, adjudged for the Respondent.

I therefore find no merit in this Appeal, as I resolve the Issues against the Appellant and dismiss the Appeal. Appellant shall pay the cost of this Appeal assessed at Fifty Thousand Naira (N50,000.00) only to the Respondent.

RAPHAEL CHIKWE-AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read the judgment just delivered by my learned brother HON. JUSTICE ITA GEORGE MBABA, JCA and have no hesitation in agreeing with his reasoning and conclusion therein.
The appeal lacks merit and is also dismissed by me. I abide by the orders for cost made in the lead judgment.

Appearances:

UDO UDUMA ESQ For Appellant(s)

CHIEF E.U. NDUKWE (who settled the brief) and K.O. KALU ESQ, who adopt the briefFor Respondent(s)