ENOBONG DENISON AKPEKANG & ANOR v. BASSEY BEN INYANG & ORS (2019)

ENOBONG DENISON AKPEKANG & ANOR v. BASSEY BEN INYANG & ORS

(2019)LCN/13012(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 2nd day of April, 2019

CA/C/423/2017

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

1. ENOBONG DENISON AKPEKANG
2. SOLOMON ABASI-OBOT
(for themselves and as representing Nung Edifon Otontia Family of Ikot Ebok Village, Eket) Appellant(s)

AND

1. BASSEY BEN INYANG
2. ETENAM JOHN UDOIDUA
3. EMMANUEL JOHN UDOIDUA
4. EKANEM EKANEM
(for themselves and as representing Nung Udoidua family of Ikot Ebok Village, Eket) Respondent(s)

RATIO

WHETHER THERE IS A THING AS CONCURRENT POSSESSION BY TWO PERSONS CLAIMING ADVERSELY TO EACH

In this sense of the facts of the case, Appellants claim of concurrent possession can only in law be acts of trespass on the Respondents land. This is because where two persons claim to be in possession of a piece of land at the same time, the law ascribes possession to one with better title. There can be no such thing as concurrent possession by two persons claiming adversely to each. See AWOYOOLU V. ARO [2006] 4 NWLR [PT. 971] 481 SC; AMAKOR V. OBIEFUNA [1974] 3 SC 67 @ 78; ODI V. OSAFILE [1987] 2 NWLR [PT. 57] 510; AKUNYILI V. EJIDIKE [1996] 5 NWLR [PT. 499] 381. PER OWOADE, J.C.A.

THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND

In all of these, it is trite that in a claim for declaration of title to land, a plaintiff as the Appellants in this case has the burden of proving his case upon his own evidence and cannot rely on the weakness of the defendant?s case. See ONISAODU V. ELEWEJU [2006] 13 NWLR [PT. 998] 517 SC; DIKE V. OKOLOEDO [1999] 10 NWLR [PT. 623] 359 SC; MADUBUONWU V. NNALUE [1999] 11 NWLR [PT. 628] 673 SC; EZE V. ATASIE [2000] 6 SC [PT. 1] 214; ELEMA V. AKENZUA [2000] 6 SC [PT. 111] 26 @ 29 ? 30; ITAUMA V. AKPE-IME [2000] 7 SC [PT. 11] 24 @ 30. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Charles Ikpe sitting in the Eket Judicial Division of the High Court of Justice, Akwa Ibom State delivered on 11th day of July, 2017.

The Appellants as Plaintiffs in the Court below commenced this suit by a writ of summons on 22-11-2007.
Pleadings were severally amended by both parties. The claims of the Appellants were as per Further Amended Statement of Claim at pages 427 ? 435 of Vol. II of the Record of Appeal as follows:
Whereof the plaintiffs claim against the Defendants jointly and severally is for a declaration that the plaintiffs are entitled to a customary or in the alternative a statutory right of occupancy over and in respect of the ?ISONG ATAN? land otherwise called ?ATAN? land situate, lying and being on Independence Av., Eket and which land is particularly delineated and described in an amended survey plan No. WIMS/AK/04/2007/04 filed in this suit.
The plaintiffs also claims N100,000,000.00 [One Hundred Million naira] damages for trespass against the

defendants jointly and severally in that the defendants without any colour of right or permission of the plaintiffs? unlawfully, provokingly and maliciously entered upon the plaintiffs land, destroyed their yields, other valuables therein and caused the plaintiffs to suffer loss and damage.
The plaintiff also claim against the defendant either by themselves, agents, servants and privies from further entering therein for any purpose whatever and/or disturbing the plaintiffs? right of use and occupation of the land afore described.

?The Respondents as defendants at the Court below relied on their Further Amended Statement of Defence and Counter-Claim at pages 474 ? 502 of the record wherein they counter-claimed as follows:
And the defendants therefore counter-claim against the plaintiff as follows:
(a) The Defendant claims against the plaintiff jointly and severally a declaration that the Defendants are entitled to customary or in the alternative statutory right of occupancy over and in respect of all that land known as and called ?EKPENE UDOIDUA? including plot 18 as indenture

registered as No. 1 at page 1 in Volume 289 of the Registrar of Deed in the land Registry in Enugu now in Uyo, and another indenture Registered as No. 1 at page 1 in Volume 212 at the Register of Lands formerly in the Land Registry in Calabar, now in Uyo, situate and lying along both side of Independence Avenue in Eket, Eket Local Government Area of Akwa Ibom State, which is particularly described and delineated in the Amended Survey Plan No. ESA/AK/3/2008/46 filed along with the further Amended Statement of Defence and Counter-claim in this suit.
(b) The Defendants also claims the sum of N200,000,000.00 [Two Hundred Million] general damages against the plaintiffs jointly and severally for trespassing on the Defendants land known as and called ?EKPENE UDOIDUA? including plot 18.
(c) The Defendants also claim from the plaintiffs jointly and severally cost of this suit arising from search of colonial documents, indentures, transport of witnesses, etc. totaling N50,000,000.00 [Fifty Million naira].
?(d) The Defendants also claim from the plaintiffs mandatory and perpetual injunction restraining the plaintiff?s either by

themselves, their agents, servants and privies from disturbing the Defendants right and possession of the said land.

The Appellants sued in a representative capacity on behalf of Nung Edifon Oto Ntia [Atontia] family, Nung Edifon of Ikot Ebok Village, Eket. The Appellants as per their claims are descendants of Chief Ntia [Atontia] who was the 1st settler and founder of Ikot Ebok Village, Eket who became cease of the entire land constituting the village including the portion of land in dispute by deforestation, the Appellants are of the Idua Clan in Eket.

The narrative in respect of the traditional history in favour of the Appellants as per their claim is succinctly stated as follows: Chief Oto Ntia [Atontia] their progenitor and ancestor deforested a large portion of piece of land which is known or called ?Isong Atan? or ?Atan? large expanse of land is situate in the present day Ikot Ebok, where he made his domain in his life time, before his demise, he shared the land between his two sons: Owu Oto Ntia [Atontia] and Edifon Oto Ntia [Atontia].

?The Appellants are the direct lineal descendants of Edifon Oto Ntia

[Atontia]. The descendants of the said Oto Ntia [Atontia] were successively the family heads or Obong Ekpuk and ancestors of the Appellants upon whom the entire land including the land in dispute was bequeathed to and successively devolved in order of ancestry include: Enoudo Edifon Ota Ntia, Uko Enoudo Edifon Edifon Oto Ntia, Assam Udo Owu Oto Ntia [alias Samarrow] AssamUdo or AsonUdo], Udoadiaha Enoudo Edifon Oto Ntia, Chief John King Usoro, Chief Wilson Uko, Enoudo Edifon Oto Antia, Augustine Assam Udo, Utin Oto Ntia, Chef Nse Udo Udo, presently devolved to the current generation, and same is vested in the Solomon Abasi-Obot, the 2nd Appellant on record. The management of the patrimonies has always devolved on the Head of the family of Obong Ekpuk as trustees for the two branches of Oto Ntia [Atontia] family.

The Appellant also pleaded and gave evidence of acts of ownership and possession spanning over a long period of time which included leases, grants and sales of portions of their land Plot 18 which includes the disputed land.

?The narrative in respect of the traditional history in favour of the respondents summarily stated is that, the

village of Ikot Ebok was founded by one Chief Ebok Etuk, in company of Chief Udoidua, the great grandson of Ukim, who founded the Idua Dynasty known as Idua Clans and the great grandfather of the Respondents, who originally came from Enen Idua and cleared the virgin forest and settled there and when other people came, it was Chief Ebok Etuk and Chief Udoidua as pioneer settlers, who showed them where to settle.

For instance, one Akpakpan came from Onion, now Onna Local Government Area and he was shown where to settle, by these two pioneers: Oto Ntia also came later from Enen Idua and was shown where to settle, by the same Udoidua. Almost at the same time, Oto Ntia arrived and both of them were shown where to settle by the same Udoidua. This was the order of arrival and they formed the original five families of Ikot Ebok village, Eket.

Sequently, Chief Ebok Etuk later quit Ikot Ebok with his family, to Ikot Okpoudo, to live with his kith and kin. As a result of the departure of Chief Ebok Etuk from Iko Ebok village back to Ikot Okpo Udo, the stool of Rulership in Ikot Ebok village, passed to Chief Udoidua, who reigned until his death.

In his lifetime, Chief Udoidua gave a portion of the land to Ikot Ebok Youth Organization for the building of the hall since he was their patron.

John Udoidua, one of the ancestors of the Respondents deforested the land in dispute, occupied, owned, possessed same and passed it on by the process of devolution, under native law and custom, to his son Iquoifon.

On the death of Iquoifon, his son Etenam, took over, owned, possessed and shared up the land of the Respondents including the land in dispute and plot 18 to his sons as follows:
(i) To Inam Adiaha Etok Etenam, the grandfather of Ignatius Akpan Nso who was 3rd defendant in suit No. HEK/12/86.
(ii) To Inyang Etok Odu Etenam grandfather of Emmanuel Joseph Inyang who was 2nd defendant in suit No. HEK/12/86.
(iii) To Udoidua Etenam, the grandfather of Chief Udoidua John Udoidua [the 1st defendant in suit No. HEK/12/86], Chief Udoidua died, while his brother Etenam John Udoidua is the 2nd Respondent herein.
(iv) The 1st Respondent herein is a descendant of Inyang Etok Odu Etenam. The 1st, 2nd, 3rd and 4th Respondents are the descendants of the original Udoidua, who deforested the land in dispute.

The Respondents also pleaded and gave evidence of acts of ownership and possession spanning over a long period of time which includes leases, grants and sales of portions of their land in dispute called ?EKPENE UDOIDUA? and which is also called Plot 18 [Part of which is in dispute] and also commonly referred to as PAMOL LIMITED RUBBER PLANTATION.

At the trial, the Appellants as plaintiffs called four (4) witnesses and tendered various Exhibits in support of their claim. The Respondents called (3) witnesses and also tendered various Exhibits in defence and in support of their counter-claim.

Hearing at the trial also moved to the locus in quo where further evidence was taken by the trial judge.

?In his judgment contained on pages 761 ? 797 of the Record of Appeal, the learned trial Judge held on the general identity of the land in dispute after comparing Appellants Exhibit 1 and the Respondents Exhibit 39 on page 767 that the identity of the land is not in doubt. The ascription of different names i.e. ?ATAN? by the Plaintiffs and ?EKPENE UDO IDUA? by the defendants is not

detrimental to the parties. See NWOKOROBIA V. NWOGU [2009] 172 LRCN page 41.

The learned trial judge proceeded to consider the traditional histories presented by the parties and found in relation to the Appellants at pages 768 ? 769 of Records that:
I must remark that this line of traditional history by the plaintiffs was hardly ever challenged under cross examination. For me, I found the traditional evidence to be cogent, consistent and without any mysterious linkages. The traditional history traced down from the founder and showed evidence of how the land was founded i.e. by deforestation and first settlement and there was an unbroken linkage up to the present plaintiffs. I accept the traditional history as plausible.

Turning to the traditional history of the Respondents at pages 772 ? 773 of the records, the learned trial judge remarked:
I have looked also at this largely unchallenged evidence of the traditional history of the defendants. I find the story line to be cogent, consistent and was linked up in the devolution process, without mysterious or fanciful occurrences, up to the present defendants. Again, like the

Plaintiffs traditional history, the defendants traditional history, is equally credible and very plausible. There is evidence of the founding of the land, how the land was founded and an unbroken line of intervening onus down to the defendants.

In the light of the above, the learned trial judge declared that there was a conflict in the traditional histories of the parties and decided to resolve the conflict by following the time tested principle enunciated in the case of KOJO II V. BONSIE [1957] 1 WLR 1223. In so doing, he deliberated on
i) The documentary evidence including letters, agreements certificates, etc.
ii) Survey Plans which would be compared and evaluated.
iii) The oral evidence in support of the documentary evidence and other facts.
iv) The findings in course of visit to the locus as relating to the actual evidence in Court.
v) Dedections from the above evaluation.

Based on analysis of the above and the traditional histories of the parties, the learned trial Judge came to conclusions, starting from page 784 ? 786 as follows:
First at pages 784 ? 785 of the Records that:

The truth is that there is a supplusage of evidence on both sides to the effect that the defendants are in possession of that Southern part of plot 18. The plaintiffs who asserted that, the defendants only occupy that area, courtesy of a gift or grant to them, did not prove that grant. I agree with Chief E. E. Eneyo on that score that the purported grant was never proved. That the defendants are on that part of the land raises an presumption that they had always been on that land, as of right, based on their traditional history, which this Court found plausible.

Second, at pages 785 ? 786 of the records, that:
The other aspect of fact, which I said are fundamental, relate to the Exhibits 1 of the plaintiffs and the Exhibit 39 of the defendants. The law is that a party should not just tender plan of land in dispute. The Plan must convey enough facts to demonstrate the features and characters of the issues sought to be addressed by way of evidence ? See IRIRI & ORS V. ERHURHOBARA & ANOR. 1991 2 LRCN 590.
In other words, in this instant case, while the plaintiffs tendered the Exh. 7, that is, the Survey Plan showing the entire

Plot 18 as drawn by African Association Ltd. and they consistently told the story of how their forebears gave the land on lease, the plaintiffs, however failed to connect their own plan of land in dispute to the plan Exhibit 7. Indeed, in the entire plan of the land in dispute the plaintiffs failed to show the area called plot 18, which they purported to give out on lease to African Asso. Ltd. All the plaintiffs showed was part of the original plot 18 given to the defendants.
In contrast the defendants tendered the Exhibit 17, which was the plan by African Association Ltd. In the legend, the entire land in dispute plan of the defendant is marked out and referred to as ?EKPENE UDO IDUA? otherwise known as plot 18 property of the defendants.
In comparison, that area marked with yellow in the defendants plan and called plot 18, tallies with the Exhibit 17 proportionately. The defendants showed in the legend, the area granted African Association in 1908 by Inam Ndia Etok, Chief Udo Idua and Inyang Eto Odu.
?Thus, I found a disconnect between the oral evidence of the plaintiffs, who said they leased out Plot 18 to African Asso.

but without showing, in the Survey Plan of land in dispute, where the area was. The only area the plaintiffs showed in their plan as being part of Plot 18 is that part which all parties agree belongs to the defendant and is not in dispute.
In short, the defendants land in dispute plan is more preferable, in explaining and practically showing evidence relating to the contentious issues of the lease of Plot 18 as afore discussed.

Thirdly and in conclusion of the finding at page 786 of the Records that:
One interesting point of the lease, above referred, is that even though the area for the lease were represented by plots, it was obvious that from the exhibits and the oral evidence, only one family could possibly have been assigned Plot 18. That the defendants occupied what the plaintiffs called of Plot 18 at the time; that only the defendants showed in their plan the entire of the land they gave on lease and the plaintiffs failed to show same on their own plan; that the law is simple that a person who is shown to occupy or possess connected or adjacent land to the area in dispute, is deemed to be the owner of the land in dispute

[see IDUNDUN V. OKUMAGBA [1976] 9 ? 10 SC 224] make me lean more in favour of the evidence of the defendants.
It is not difficult to believe and I do believe that, contrary to the position of the plaintiffs, the defendants have shown a stronger nexus between the then land the subject of the lease and the present land in dispute. I believe that the defendants granted the lease of the entire Plot 18 to African Association. The grant of a lease was and is treated as act of possession. It was not the plaintiffs who were in possession. I so hold.

Consequently, the learned trial Judge entered judgment for the Respondent on the counter claim and declared:
(1) That the defendant/counter claimants are entitled to customary or Statutory right of Occupancy whichever is applicable, over and in respect of all that piece or parcel of land known as and called ?EKPENE UDOIDUA? which land relates to that portion of land generally called plot 18 as represented by the various indentures verified in this judgment and lying along both sides of Independence Avenue, Eket, in Eket Local Government Area and the said land is more particularly

delineated in the Amended Survey Plan of the defendants No. ESA/AK/3/2008/46LD filed along with the Amended Statement of Defence.
(2) The plaintiffs by themselves, privies, assigns, successors-in title or agents are hereby restrained from interfering with the use of the land by the defendants or trespassing into same or acting in anyway inconsistent with the rights of defendants in this case.
(3) N2million general damage is awarded in favour of the defendants counter claimants and payable by the plaintiffs.
Cost of this action is assessed at N50,000.00 and payable by the plaintiffs in favour of the defendants in this counter claim.

Dissatisfied with this judgment, the Appellant at first filed a Notice of Appeal on 14/7/2017 and later filed an Amended Notice of Appeal containing seven (7) grounds of appeal on 27/9/2018. The relevant briefs of argument are:
1. Appellants? brief of Argument of 19/11/2018 which was deemed filed on 15/01/2019. It is settled by Patrick Ekuri, Esq.
2. Respondents brief of Argument of 18/12/2018 was also deemed filed on 15/01/2019. It is settled by Aniefiok Utuk, Esq.

3. Appellants Reply Brief of 18/1/2019 is settled by Patrick Ekuri, Esq.

Learned counsel for the Appellants nominated three (3) issues for determination. They are:
1. The learned trial Judge took into cognizance extraneous considerations not sanctioned by the due process of law in reaching a perverse conclusion which occasioned a miscarriage of justice. Grounds 2, 3 and 5.
2. Whether the Respondents going by the state of pleadings and evidence on record proved their counter claim on the balance of probabilities to entitle them to the grant of their reliefs. Grounds 4 and 6.
3. Whether going by the evidence on record and the state of pleadings, the Appellants proved their case to entitle to judgment in their favour as per the reliefs sought. Ground 1.

Learned counsel for the Respondents also formulated three (3) issues for determination of the Appeal. They are:
1. Whether the learned trial judge erred in law in deciding to test the traditional histories of the parties with established acts of possession and ownership in line with the rule of KOJO V. BONSIE [1957] 1 WLR 1223. Ground 5.
2. Whether from the totality

of the pleadings and evidence, the Respondents were not entitled to judgment on their counter claim. Grounds 2, 3, 4 & 6.
3. Whether from the totality of the pleadings and evidence, the Appellants proved their claims and were entitled to judgment. Ground 1.

Learned counsel for the Appellants chose to argue his Issues 1 and 2 in one breadth. He submitted that the trial Court took into cognizance extraneous consideration in evaluating the evidence on record, going by the state of pleadings and consequently reached a perverse conclusion, and erroneously entered judgment in favour of the Respondents as per their counter claim, thus, occasioning a miscarriage of justice. The state of the Respondents pleadings as per their defence and counter claim is devoid of the basic legal parameters to hinge a claim for declaration of title, based on traditional evidence, and/or evidence of long possession or acts of ownership.

?The question, said counsel, is whether there were sufficient materials and proof of acts of ownership as required by law? He submitted that the Respondents counter-claim as per their Amended Claim on pages 500 ? 502 of the

record is brief of the requirement of pleading in respect of traditional evidence viz:
1. Who found the land?
2. How the land was founded?
3. Particulars of the intervening owners who claim.

He referred to the case of ODI V. IYALA [2004] ALL FWLR [PT. 207] 596 8 NWLR [PT. 875] 283, to say that these requirements are conjunctive. And, that beyond referring to the Respondents progenitors as co-founder of Ikot Ebok where the land in contention is situate, nothing more was averred in relation to the other elements referred in the circumstance. This, he said is a cross and separate action, and the rule of pleading applies mutatis mutandis. He submitted that the Respondents failed to aver and subsequently prove genealogy via chain of devolution without gap or gaps defying explanation which must be narrated with the system of devolution till the land came to be owned by the Respondents.

He submitted that the averment in respect of the Respondents root of title is summarized in paragraph 23 of the Further Amended Statement of Defence thus:
23(i) That the Defendants deny paragraphs 17, 18, 19 and 20 of the further Amended Statement of

Claim and shall at the trial put the Plaintiffs to the strictest proof of all the allegations thereof.
(ii) That in further answer to paragraphs 17, 18, 19 and 20 of the further Amended Statement of Claim the Defendants state as follows:
(a) The land in dispute has never been in possession of the Plaintiffs? family from time immemorial or at any time since it was deforested, founded, occupied, owned, possessed and used by the Defendants
(b) John Udoidua the ancestor of the Defendants deforested the land in dispute, passed it on by the process of devolution under native law and custom to his son Iquoifon. On the death of Iquoifon his son Etenam took over, owned, possessed, and shared it to his sons.
(c) From Etenam the land in dispute was shared as follows:
(i) To Inam Adiaha Etok Etenam, the grandfather of Ignatius Akpan Uso who was 3rd Defendants in Suit No. HEK/12/86.
(ii) To Inyang Etok Odu Etenam gradfather of Emmanuel Joseph Inyang who was 2nd Defendant in suit No. HEK/12/86
?(iii) To Udoidua Etenam the grandfather of Chief Udoidua John Udoidua who was the 1st Defendant in Suit No. HEK/12/86. Chief

Udoidua John Udoidua is now dead, but his brother Etenam John Udoidua is now the 2nd Defendant in this present suit. 1st defendant in this present suit is a descendant of Inyang Etok Odu Etenam. 1st, 2nd, 3rd and 4th Defendants in this suit are descendants of the original Udoidua who deforested the land in dispute. The three male children of Etenam took their shares of the land in dispute as stated in paragraph 23 (ii)(c) of this further Amended Amended Statement of Defence, and these makeup the land of the Defendants including the land in dispute and Plot 18.

He submitted that there is no nexus shown by pleadings and evidence on record between the instant Respondents and the three alleged sons of Etenam Ekanem. That it is not enough to just plead that the Respondents are descendants of the original Udoidua who deforested the land ? without any explainable nexus to the family tree, a genealogy which he said is fraught with ominous and obvious gaps.

?He queried, did the alleged found a land within an established village and clan independent of the original ancestry of the larger clan and what is the connection between the Respondents family

and other families within the village?

He referred to the cases of IBIKUNLE V. LAWANI [2007] 3 NWLR [PT. 1022] 580 @ 585; OGUN V. ASEMAH [2002] FWLR [PT. 128] 1328 @ 1346; OLOKOTINTIN V. SAADU [2002] FWLR [PT. 122] 80 @ 85.

He submitted that the Respondents merely traversed the Appellants averments in paragraphs 11, 12, 13, 14, 15, 24, 25, 26 and 27 of the further Amended Statement of Claim in their paragraphs 21, 38 and 46 of the defence. That by this, the finding of the trial Court that the Appellants did not prove the averment in respect of the war and compensatory gift of part of Plot 18 to the Respondents forebear is at variance with the evidence on record and the state of pleading.

After referring on the above to the cases of AKANNI V. PRINCE ODEJIDE [2004] ALL FWLR [PT. 218] 827 @ 857 and OKOROMAKA V. ODIRI [1995] 7 NWLR [PT. 408] 411, Appellants counsel added that in the light of the foregoing the Respondents traditional evidence is inconclusive, with unexplained gaps as to the chain of devolution, and doubtful root of title as to the founder and the method of finding the land. He referred to the case of ARTRA INDUSTRIES (NIG.) LTD. V. N.B.C.I. [1998] 4 NWLR [PT. 546] 357.

He argued that the learned trial Judge further fell into error when he applied the principle in KOJO II V. BONSIE [1957] 1 WLR 1223, to the action leading to this appeal in view of the inconclusive nature of the Respondents traditional evidence. The Court, said counsel, ought to have rejected the evidence of the Respondents as been inconclusive and not credible, and ought not to have applied the principle in KOJO?s case. He referred to the cases of ONIGBEDE V. BALOGUN [2002] 2 SC [PT. 11] 129 @ 142 and BIARIKO V EDEH-OGWUILE [2001] 4 SC [PT. 11] 96 @ 114 and submitted that the value in KOJO II V BONSIE [supra] is not applicable where the traditional evidence led by one of the parties is so self contradictory that no reasonable tribunal will act on it.

He submitted that the learned trial judge fell into grave error when in attempt to apply the principle in KOJO II V. BONSIE [supra] by having recourse to agreements allegedly executed by some of the ancestors in respect of the purported disputed land which have no nexus with the instant Respondents. He argued that from the fact of the agreements relied upon by

the Respondents [which ironically are the same document relied upon by the Appellants] to prove alternative acts of ownership: none of the executors relates or have any evidential linkage to the instant Respondents going by the nagging and unexplained gap in the narration of their genealogy on record.

Appellants counsel referred to page 783 of the record, where the learned trial judge compared Exhibit 6 tendered by the Appellants and Exhibit 22 tendered by the Respondent and observed inter alia ?. ?are numerous signatories on the side of the lessors. These appear to include John K. Usoro said to be one of the Appellants family and also there is the name of John Udo believed to be Respondents family?. He submitted that unlike the Appellants who pleaded John K. Usoro as one of their forebear going by the traditional evidence which the learned trial judge accepted as cogent, and credible, the said John Idua or any other person who purportedly executed their aforementioned exhibits were not evident from the inconclusive traditional evidence of the Respondents.

?He submitted that the foregoing is pertinent because none of the instant

Appellants and Respondents were parties or personally executed any of the agreement on behalf of their respective families. That it would be rather speculative to say that John Udo is of the Respondents family, particularly having regards to the facts that both parties are relying on the same documents. He referred to the cases of RAUF ADESOJI AREGBESOLA V. OLAGUNSOYE OYINLOLA [2011] 9 NWLR [PT. 1253] 458 @ 501; OLALOMI INDUSTRIES LTD. V. NIDB [2002] 17 NWLR [PT. 795] 58 and submitted that the Court is duty bound to evaluate documentary evidence and not to speculate on them.

He further submitted that the learned trial Judge having already found that the identity of the disputed land is not in question. More so, as the Court has visited the locus in quo. It is of no moment therefore in law to say that, Appellants witness could not readily identify the disputed land on the Survey Plan tendered and it is wrong for the trial Court to be swayed by that consideration in awarding ownership in favour of the Respondents. He referred to the cases of C.G.C. [NIG.] LTD. V. BABA [2004] 10 NWLR [PT. 882] 658; SUNDAY TEMILE & ORS. V. JEMIDE EBIGBEYI AWANI [2001] 6

SC 64 @ 183 that a Survey Plan is unnecessary where land can be ascertained with definitive certainty.

On the visit to the locus in quo, Appellants counsel submitted that it is evident that both the Respondents and the Appellants have concurrent possession of Plot 18, that the Appellants are claiming only one half of Plot 18 unlike the Respondents who are laying claim to the entire Plot 18. He referred to the cases of AKINTOLA V. LASUPO [1991] 3 NWLR [PT. 180] 508 @ 575; OLAYIOYE V. OSO [1969] ALL NLR 281; AMAKOR V. OBIEFUNA [1974] 3 SC 67 @ 78 to say that there cannot be concurrent possession of a piece of land by two parties claiming adversely against each other.

After further referring to the cases of ODI V. OSAFILE [1987] 2 NWLR [PT. 57] 510; AKUNYILI V EJIDIKE [1996] 5 NWLR [PT. 499] 381 on the above subject, counsel submitted that the testing of the agreements aforestated and concurrent acts of possession of Plot 18 by both parties cannot satisfy the requirement of the law which is proof of exclusive possession. He referred on this to the case of UKA V. IROLO [2002] FWLR [PT. 127] 1167.

?He submitted that the tenor of the Respondents

claim was primarily on traditional evidence and in alternative acts of possession. And, that the law is that in a claim for declaration of title to land by traditional history, a party who fails to prove his root of title by that means cannot turn around to rely on acts of ownership and possession to prove his title to land. On this, counsel referred to the cases of UKA V IROLO [2002] FWLR [PT. 127] 1167; ODOFIN V AYOOLA [1984] 1 SCNLR 372; NDUKWE V. ACHA [1998] 6 NWLR [PT. 552] 25; DABO V. ABDULLAHI [2005] 7 NWLR [PT. 923] 181; OYADARE V. KEJI [2005] 7 NWLR [PT. 925] 571.

Finally, on issues One and Two, Appellants counsel submitted that the learned trial Court was improperly swayed by alleged customary arbitration in favour of the Respondents when in fact the essential elements of such arbitration were not pleaded and proved and indeed that estoppel was not specifically pleaded or borne out of the defence and counter-claim of the Respondents.

?Learned counsel for the Respondents also argued issues One and Two together in one piece. He submitted that the Respondents pleaded and proved their traditional history and numerous acts of ownership and

possession showing who found the Plot 18, how same was founded and the particulars of the intervening owners down to the present Respondents, which according to counsel can be seen in paragraph 7(i) (ii) paragraph 8(i) (ii) (iii) paragraph 9 (ii) paragraph 15(i) and paragraph 23(a) (b) (c) (i) ? (ii) of the Respondents? Further Amended Statement of Defence at pages 475, 476 and 484 of the Record of Appeal, which said facts and evidence was accepted by the learned trial Judge in his judgment at pages 770 ? 772 of the Records.

He submitted that the trial Court after properly evaluating the entire traditional evidence of the parties and tested them with acts of possession and ownership over the years, rightly dismissed the claims of the Appellants and entered judgment for the Respondents on their counter claim.

He submitted that the PW1 and PW2 under cross examination at pages 718 and 721 of the Record admitted that the Respondents were the ones who own the land wherein Nobles International School is situate, that the Respondents owns the Restaurant and the land opposite the Restaurant and indeed owns the Plot 18 in dispute.

On the allegation that the Appellants gave a portion of Plot 18 to the ancestors of the Respondents who according to the Appellants are from Ikot Ebiyan for helping them to prosecute communal war between Afaha and Idua Clan, Respondents counsel submitted that the Respondents pleaded and joined issues with the Appellants on the issues of gift or grant of portion of Plot 18 to the ancestors to the Respondents by the Appellants ancestors. That the Respondents had put the Appellants to proof of such averment at paragraphs 21, 38 and 46 of their further Amended Statement of Defence and in further answer to the said averment pleaded the facts in paragraphs 21(i) and (ii) 38 (ii) and 46 (i) ? (iii) (a) ? (e) at pages 483, 489 ? 491 insisting that the Respondents are members of Nung Udoidua in Ikot Ebok Village, Eket Local Government Area, and to the effect that Chief Udoidua in his lifetime was the Secretary of Ikot Ebok Village and also the Secretary of Idua Clan, which said fact was admitted by the PW3 under cross examination by the learned counsel to the Respondents on page 723 of the Record.

?He submitted that the learned trial judge rightly

held in his judgment at pages 784 ? 785 that the Appellants failed to prove that such war was ever fought and also failed to establish such grant. On this, counsel further referred to the provision of Section 131, 132 and 140 of the Evidence Act and the case ofOKOYE V. NWANKWO [2014] 15 NWLR [PT. 1429] 93 @ 128 ? 129. He referred to the cases of IBIDOKUN V. ADARALODE [2001]12 NWLR [PT. 727] 268 @ 304; AYORINDE V SOGUNRO [2013] WRN 19 and ELEGUSHI V. OSENI [2005] 14 NWLR [PT. 945] 348 @ 366 to say that the learned trial Judge was right in testing the traditional history of the parties with proven acts of ownership and possession under the principle in KOJO II V BONSIE [supra]. That it was through the testing of the traditional history of the parties that the Court came to the conclusion that the Appellants had failed to prove a grant of the portion of the Plot 18 in dispute to the ancestors of the Respondents [pages 784 ? 785 of the records], that between the Appellants ancestors and the Respondents ancestors, the Respondents were the one who leased Plot 18 to the African Association [pages 785 ? 786 of the record] and that the

Appellants had failed to connect their own Plan of land in dispute in Exhibit 7 to the Plot 18 in dispute which was fully captured and showed in the Respondents Exhibits 17 and 39, thus the Respondents said counsel had proved a better title and was entitled to judgment.

He submitted that where a party fails to match his plan with the features on the land, that such party fails to prove his claims on the plan and the Court should discountenance the plan. He referred on this to the cases of EMIRI V. IMIEYEH [1999] 4 NWLR [PT. 559] 442; IJADE V. OGUNYEMI [1996] 9 NWLR [PT. 470] 28; ADENLE V. OLUDE [2002] 18 NWLR [PT. 799] 433; OLUSANMI V OSHASONA [1992] 6 NWLR [PT. 245] 37; MOMOH V. UMORU [2011] 15 NWLR [PT. 1270] 259 ? 260 and submitted that in the instant case, the learned trial Judge was right in accepting the evidence of the Respondents as to the boundaries and features of the land in dispute in preference to that of the Appellants.

He submitted that the law is that where a party [as the Appellants] herein claims a portion of a larger land, while the adverse party [as the Respondents] claims the entire land and establish acts of ownership and

user of the undisputed larger contiguous portion not in dispute [as the Respondents], the Court relying on the established fact of acts of ownership can rely on Section 35 of the Evidence Act, 2011 [former Section 46 of the Evidence Act, 1990] to enter judgment for the adverse party.

He referred to the cases of ANUKAM V. ANUKAM [2008] 1 RCJN 1 20 ? 23; NWOKORO V. ONUMA [1991] 7 NWLR [PT. 206] 668 @ 675 ? 676. Respondents counsel further submitted that the case of the Appellants was not enhanced at the locus in quo where the Appellants showed the Court an ?ETOFIA TREE? as the boundary of their land. This was denied by the Respondents through DW1 in cross-examination and suggesting the fact that the Appellant could not indeed properly identify the land in dispute.

He added that the visit to the locus in quo cannot be used by the Appellants to rectify the non-identification of their land with certainty. And, that the Appellants who failed to prove the exact boundaries of the land, failed to prove a better title. He referred to the cases of ODICHIE V. CHIBOGWU [1994] 7 ? 8 SCNJ 317 @ 325; IORDYE V. IHYAMBE [2000] 15 NWLR

[PT. 692] 678; ONU V. AGU [1996] 5 NWLR [PT. 451] 662 and UDEZE V. CHIDEBE [1990] 1 SCNJ 117.

He submitted that the Respondents proved essential ingredients of customary arbitration in between their predecessors in title but that in any event, the trial Court never based his decision on the said customary arbitration and that the judgment would be the same even without the arbitration. He referred to Section 251(1) of the Evidence Act 2011 and the cases of OJENGBEDE V. ESAN [2001] 18 NWLR [PT.746] 771 @ 791; EZEOKE V. NWAGBO [1998] 1 NWLR [PT. 72] 629 ? 630; EGBARA V. AKPOTOR [1997] 7 NWLR [PT. 514] 576 ? 577.
He urged us to resolve issues 1 and 2 in favour of the Respondents.

Learned counsel for the Appellants filed a Reply Brief where amongst other things, he comprehensively reviewed the evidence of DW1. First, to show contradictions in the evidence of the Respondents witnesses and thereby bringing out the insistence of the Appellants that the Respondents are from Ikot Ebiyan and not from Ikot Ebok. That the descendants of the Respondents never ruled in Ikot Ebok. And, that the documentary evidence evaluated by the learned trial

judge tilt more towards the Appellants case for example evidenced by the cross-examination of DW1 who could not point to any mention of naming of Udoidua in Exhibit 4. He urged us to find in favour of the Appellants.

RESOLUTION OF ISSUES 1 AND 2
Learned counsel for the Appellants has discredited the pleading and evidence of traditional history of the Respondents for the reason that even if it is conceded that the Respondents pleaded who founded the land and how the land was founded, that the Respondents did not plead intervening owners more especially according to him that ?there is no pleading on record to show how the land devolve from ?grandfather generation? of persons who are not parties to this action, excluding their fathers to the Respondents in the instant appeal

He argued that ?Evidence of traditional history to attract credibility must be a total narration. An abridged history of past events leaves recipient in doubt of the true nature of the aspect of the history embedded in secrecy?. On this, he referred to the case of OGUN V. ASEMAH [2002] FWLR [PT. 128] 1328 @ 1346.

To the contrary, I think the pleading and evidence of the traditional history of the Respondents must be viewed holistically as the learned trial judge did in the con of the averments in paragraph 7(i) (ii) paragraph 8(i) (ii) (iii), paragraph 9 (ii) paragraph 15(i) and paragraph 23(a) (b) (c) (i) ? (ii) of the Respondents further Amended Statement of Defence; and not merely in the con of paragraph 23 of the Further Amended Statement of Defence. This is because the Respondents paragraph 23 forms part and parcel of the umbrella pleading in paragraphs 7, 8, 9, and 15 of their Statement of Defence. Paragraphs 7, 8, 9, and 15 of the Further Amended Statement of Defence are hereby reproduced.
7. (i) The Defendants in further answer to paragraph 4 of the Statement of Claim state that Chief Oto Ntia was not the founder nor the first settler of Ikot Ebok village. The traditional history of Ikot Ebok village is that, the village of Ikot Ebok was founded by one Chief Ebok Etuk in company of Chief Udoidua, the great grand father of the defendants on record, and these two persons deforested the virgin land called Ikot Ebok and the two of them first settled therein.

Again the traditional history of the area has it further that Chief Ebok Etuk and Chief Udoidua, both originally came from Enen Idua and cleared the virgin forest and settled there, and when other people came, it was Chief Ebok Etuk and Chief Udoidua as pioneer settlers who showed them where to settle.
(ii) For instance, one Akpakpan came from Oniong, now in Onna Local Government Area, and he was shown where to settle by these two pioneers, Chief Ebok Etuk and Chief Udoidua. Oto Ntia also came later from Enen Idua and was shown where to settle by the same Chief Udoidua. Almost at the same time Oto Ntia arrived, one Oduok from Enen Idua and one Ekpe Oyu from Esit Eket also arrived and both of them were shown where to settle by the same Udoidua. This was the order of arrival and they formed the original five families of Ikot Ebok village, Eket.
Traditional history also has it that Chief Ebok Etuk later quit Ikot Ebok with his family to Ikot Okpoudo, to live with his kith and kin.
?8. (i) The Defendants state further still in connection with paragraph 4 of the Further Amended Statement of Claim that as a result of the

departure of Chief Ebok Etuk from Ikot Ebok village, back to Ikot Okpoudo the stool of rulership in Ikot Ebok village, passed to Chief Udoidua who reigned until his death. When Chief Udoidua died his son Iquoifon Udoidua succeeded to the stool [Ifim Ubon]. At the death of Iquoifon, his son, one Etenam Iquoifon Udoidua, succeeded him.
(ii) The Defendants State Further in connection with paragraph 4 of the further Amended Statement of Claim that the said Chief Udoidua, the co-founder of Ikot Ebok village, was the great-grand son of one Ukim who founded IDUA DYNASTY known as Idua Clan in Eket Local Govt.
The Defendants are the great-grandson of Chief Udoidua whose ancestor came from ENEN IDUA or ENI-IDUA and founded, and deforested the virgin land which has grown and become known as Ikot Ebok village in Eket, Eket LGA.
When Chief Udoidua left Enen Idua in those dark days to co-found Ikot Ebok, many of his other relations still remain in Enen Idua or Eni-Idua, which is a large track of land bound by Ubium Creek and Ikot Uso Ekong village in Eket Local Government Area. The remnants of Chief Udoidua?s people and relations who stayed

put when he left to co-found Ikot Ebok village constitute and form the bulk of IDUA CLAN in Eket today.
9. (i) In further answer to paragraph 4 of the further Amended Statement of Claim, the Defendants state that there is no land in Ikot Ebok known as and called ?ATAN? land or ?ISONG ATAN? as alleged by the plaintiffs.
(ii) In further answer to paragraph 4 of the further Amended Statement of Claim, the land in dispute which had devolved from many generation to the present defendants, is known as and called ?EKPENE UDOIDUA?. Originally it consisted of two portions; one for farming and another for buildings. The site of the old Magistrate Court, Eket, stretching to the site of the Eket library and to the old or former Telegraph Road, Eket which is the present Liverpool Road, Eket, formed the portion for settlement, while the area beyond the present Liverpool Road was for farming.
?In further answer to paragraph 4 of the further Amended Statement of Claim the Defendants deny the claim of the plaintiffs that they are descendants of Chief Oto Ntia. Strict proof of the claim that they the plaintiffs are

descendants of Chief Oto Ntia will be required of them at the trial of this action.
15. (i) The Defendants shall at the trial contend and maintain that their land which is known as and called ?Ekpene Udoidua? has been their property from the time Chief Udoidua co-found Ikot Ebok village and that they have enjoyed and used the said ?Ekpene Udoidua? along with their relations from that time of co-founding of the said land till now.
?(ii) The Defendants also shall maintain at the trial that ?Ekpene Udoidua? had been their land from that ancient time when Ikot Ebok village was founded and that they enjoyed and made use of ?Ekpene Udoidua? and co-own same with their brother and relations, such as Emmanuel Inyang, even though he is not joined in this present suit. However he was a co-defendant in the two previous suits namely, Suits Nos. HEK/9/91 and HEK/12/86 which were later consolidated. The proceeding of that consolidated suit which was later struck out for want of prosecution is hereby pleaded and shall be founded upon in this case. It is however, surprising that the plaintiffs have not made any

reference to this consolidated suit and the striking out of same throughout their further Amended Statement of Claim in this present suit.

It must also be noted that the process of the earlier Suit HEK/12/86 which forms part and parcel of the Respondents genealogy in paragraph 23 of the Defence was earlier pleaded and relied upon in paragraphs 10, 11, 12, 13, 14 and 15 of the Statement of Defence.

In my opinion, it was not therefore surprising when the learned trial judge held at pages 779 ? 780 of the Record of Appeal that:
I have looked also at this largely unchallenged evidence of the traditional history of the defendants. I find the story line to be cogent, consistent and was linked up in the devolution process without mysterious or fanciful occurrences up to the present defendants. Again, like the plaintiff?s traditional history, the defendants traditional history, is equally credible and very plausible.

?After the learned trial Judge has found the traditional evidence of the parties plausible though conflicting, there is no further justification for the Appellants counsel to attempt to fault the reliance of the

trial Court on the case of KOJO II V. BONSIE [1957] 1 WLR 1223, to test the two sets of traditional history and determine which of them is more probable. The procedure finds support in the cases of IBIDOKUN V. ADARALODE [2001] 12 NWLR [PT. 727] 268 @ 304; AYORINDE v. SOGUNRO [2013] WRN 19 and ELEGUSHI V. OSENI [2005] 14 NWLR [PT. 945] 348 @ 366, where it was held that where there are before a trial Court two or more conflicting or competing versions of traditional versions of traditional history in a land dispute and it is difficult or impossible for the Court to ascertain which version represents the truth, the Court can proceed to decide the case based on acts of ownership and possession or other facts of evidence in recent times to ascertain which version is more probable.

?Still on the question of whether or not the Respondents proved their counter-claim, I also consider it critical as the learned trial judge did that the Appellants failed to prove their assertion of grant of part of Plot 18 to the Respondents on account of the assistance offered to the Appellants, by the Respondents progenitor, Ebiyen (Abiyan) who ?was hired as war oracle to

prosecute a war?. In this respect, Appellants counsel submitted that their specific averments in that regard found in paragraphs 24, 25, 26, 27 in conjunction with paragraphs 11, 12, 13, 14, 15 of the Amended Statement of Claim were only traversed without further specific averments by the Respondents. This is not correct.

To the contrary, the Respondents pleaded in paragraph 21, 38, and 46 in response to the Appellants aforementioned paragraphs as follows:
21.(i) The Defendants deny paragraphs 11, 12, 13, 14 and 15 of the further Amended Statement of Claim and shall at the trial put the plaintiffs to the strictest proof of all the allegations thereof.
(ii) In further answer to paragraphs 11 and 12 of the further Amended Statement of Claim, the Defendants state emphatically that they are from Nunu Udoidua family in Ikot Ebok village in Eket Local Government Area. At the trial the Certificate of Origin of late Chief Udoidua John Udoidua shall be founded upon and same is hereby pleaded.
The said Chief Udoidua John Udoidua in his life time held various positions in Nung Udoidua and in Ikot Ebok and also in Idua Clan. Late Chief

Udoidua John Udoidua was Secretary of Ikot Ebok village and also Secretary of Idua Clan.
38. (i) The Defendants deny paragraphs 24 and 25 of the further Amended Statement of Claim and shall at the trial put the plaintiffs to strictest proof of all the allegations thereof.
(ii) In further answers to paragraphs 24 and 25 of the further Amended Statement of Claim the Defendants state that since the PAMOL Ltd. surrendered the Lease to the respective owners, the Defendants took Plot 18 and the Plaintiff?s took Plot 20.
At the trial of this suit, the Defendants shall tender and rely on various receipts found in the file of the then Eket Divisional Office, Eket, dated 30th October, 1964 showing as follows:
(i) That E. B. Edim for and on behalf of the Divisional Officer, Eket, received from one Mr. K. I. Udoh of Ikot Ebok a Certified Copy of Plan in respect of Plot No. 20 ? [UAC] Rubber Plantation. The said Receipt is dated 30th October, 1964 and this document which is found in Eket Local Govt. Office, Eket, is hereby pleaded in this case.
?(ii) That E. B. Edim for and on behalf of the Divisional Officer, Eket received

from Chief Assam Ebitu of Ikot Ebiyan a Certified Copy of Plan in respect of Plot No. 20- [UAC] Rubber Plantation, dated 30th October, 1964 and this document which is found in Eket Local Govt. Office, Eket, is hereby pleaded in this case.
(iii) That E. B. Edim for and on behalf of the Divisional Officer, Eket, received from Chief Akpan Ofonmbuk of Ikot Ebiyan a certified copy of Plan in respect of Plot No. 19-[UAC] Rubber Plantation, dated 30th October 1964, and this document which is found in Eket Local Govt. Office, Eket, is hereby pleaded in this case.
46. The Defendants deny paragraphs 26, 27 and 28 of the further Amended Statement of Claim and shall at the trial put the Plaintiffs to the strictest proof of all allegations thereof.
(i) The Defendants have since the coming into effect of the Deed of Surrender registered as No. 1, at page 1 in Vol. 212 of the Land Registry in Enugu, resumed possession of Plot 18 in its entirety [13 Acres] and have built on part of it, sold and leased some to various tenants and have reserved other portions for their future use.
?(ii) That the following documents related to some of the Plots of

land in Plot 18 built on and others which they have sold out rightly to the tenants and those they have granted leases to tenants, shall be founded upon at the trial.
(iii) The following documents mentioned below and numbered as (a), (b), (c), (d) and (e) relate to some of the Plots of land in Plot 18 in which the defendants have built on and others which they have sold out-rightly to tenants and also those they have granted leases to tenants-
(a) Certificate of Statutory Right of Occupancy Notification of Approval in Principle on behalf of Chief. U. J. Udoidua in respect of his residence with plan attached, situate in Plot 18 the subject matter of this suit. Notification of Approval in Principle is hereby pleaded.
(b) The Agreement made between Chief Udoidua John Udoidua and Elder Okon Sam Ikon of Mbioto Ekpene Ituen in Etinan Local Government of Cross River in 1977, over the portion of land sold to him situate in Plot 18, the subject matter of this suit, is hereby pleaded.
?(c) A conveyance between Etenam John Udoidua the second defendant in this suit and Akpan Abraham Eno in which part of Plot 18 was conveyed on 20th January

1977. The said conveyance is hereby pleaded.
(d) Agreement between Etenam John Udoidua and Effiong Thompson Etuk conveyed on 13th Sept., 1977 covered by Certificate of Occupancy No. EK/174/82. The said conveyance is hereby pleaded.
(e) A Certificate of Occupancy No. EK/245/92 dated the 15th day of Nov., 1993 on behalf of Edwin Samuel Ekanem of Udoidua family of Ikot Ebok Eket, Eket Local Government Area in respect of a portion of land in Plot 18 situate at Independence Avenue, Eket, Eket Local Government Area is hereby pleaded.
(i) All Survey Plans, Conveyances and Leases mentioned in paragraphs 45 (i), (ii), (iii)(a), (b), (c) and (d) are all pleaded.

It was for the reason of lack of proof of the alleged gift or grant of part of Plot 18 that the learned trial judge held on pages 784 ? 785 of the Record of Appeal that:
?. The plaintiffs who asserted that the defendants only occupy that area, courtesy of a gift or grant to them, did not prove that grant. ?That the defendants are on that part of the land raises a presumption that they had always been on that land, as of right, based on their traditional history which the Court found plausible.

Truly, by Section 35 of the Evidence Act, 2011 [former Section 46 of the Evidence Act, 1990]-
Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of a particular piece or quantity of land with reference to which acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.

In the instant case, the learned trial Judge was not wrong to have found that the Respondents who undoubtedly were in undisturbed possession of the Southern Part of Plot 18 as against the Appellants claiming of Plot 18 were the true owners of Plot 18 having regard to the failure of the Appellants to prove their alleged grant or gift of part of Plot 18 to the Respondents. See NWOKORO V. ONUMA [1991] 7 NWLR [PT. 206] 668 @ 675 ? 676.

Learned counsel to the Appellants, more especially in his Reply Brief made reference to contradictions in the evidence of the Respondents and specifically pointed out that in the Deed Exhibit 4 which

is the Lease in respect of Plot 18 with the African Association DW1 admitted that the name of Udoidua Family is not there. The above does not seem as damning as the admission of PW2 under cross-examination that the Respondents own the land wherein Nobles International School is situate, the Restaurant, the Building lying after the Restaurant- and that ?All these building are within the area called Plot 18?.

Another interesting point in the comparison of the cases of the parties in this case, is that even though the learned trial Judge held generally at page 767 of the Record of Appeal that the identity of the land is not in dispute. That does not relieve the Appellant of matching his plans with the features on the land. This is generally because evidence of boundary is very important in land dispute for it is really the center of the dispute. Once the boundary is known, the Court is in good position to determine ownership with the aid of other relevant evidence. See OKOKO V. DAKOLO [2006] NSCQR VOL. 27 p. 259.
In this respect, the failure of the Appellants at the visit to the locus in quo to describe their land in conformity with paragraph

7 of their Further Amended Statement of Claim by pointing to an ?ETOFIA TREE? as the boundary of the land was as grievous as the inability of the Appellants to match Exhibit 7, that is the Survey Plan showing the entire Plot 18 as drawn by African Association Ltd. with their own land in dispute plan.
On this score, learned counsel for the Respondents referred to the cases of EMIRI V. IMIEYEH [1999] 4 NWLR [PT. 559] 442; IJADE V. OGUNYEMI [1996] 9 NWLR [PT. 470] 28; ADENLE V. OLUDE [2002] 18 NWLR [PT. 799] @ 433 and submitted that where a party fails to match his plan with the features on the land, his claims must fail. I also agree with the learned counsel for the Respondents that the learned trial judge was right in accepting the evidence of the Respondents as to the boundaries and features of the land in preference to that of the Appellants. See OLUSANMI V. OSHASONA [1992] 6 NWLR [PT. 245] 37; MOMOH V. UMORU [2011] 15 NWLR [PT. 1270] 259 ? 260.
?Indeed, in comparing Appellants? Exhibit 7 with the Respondents Exhibit 17 with Exhibit 1 and 39 in relation to the said Plot 18, the learned trial judge noted at page 786 that

?the only area the Plaintiffs showed on their Plan as being part of Plot 18 is that part which all parties agree belongs to the defendant and not in dispute.?
From the foregoing, the question whether the Respondents proved ?better title on preponderance of probabilities can only be answered in the affirmative?. See IORDYE V. IHYAMBE [2000] 15 NWLR [PT. 692] 675; ONU V. AGU [1996] 5 NWLR [PT. 451] 662; UDEZE V. CHIDEBE [1990] 1 SCNJ 117; ODICHIE V. CHIBOGWU [1994] 7 ? 8 SCNJ 317 @ 325.
Issues One and Two are resolved against the Appellants.

On issue Three, learned counsel for the Appellants submitted that the finding and conclusion of the learned trial judge as regard the traditional evidence of the Appellants remains unassailable and cannot be faulted. He referred to the case of ADEMOLAJU V. ADENIPEKUN [1999] 1 NWLR [PT. 589] 440 to say that the success of their traditional history without any acts of possession would have been sufficient to sustain their claim. However, that ex abundante cautela, the Appellants pleaded act of possession and exclusive possession to further buttress their claim. That Exhibits 4, 5, 6

and 7 which were various Agreements entered into in respect of the land are in consonance with the traditional evidence of the Appellants. That, John. K. Usoro and Assam Udo or Asamudo or Aso Udo is clearly proved in line of the Appellants ancestry before the land devolved to the current Respondents. He submitted that on the face of the documentary evidence, the Respondents could not show any nexus between them and the forebears who allegedly executed those agreements, going by their traditional history.

?That Exhibit 4 executed between Chiefs and Messrs African Association Ltd. abundantly shows that the disputed Plot 18 after donating part of the entire Plot 18 for governmental stations and offices. In that agreement the appellants? ancestor signed for the lease of Plot 18 whereas none of the Respondents? ancestor signed any document of the Plot 18. It was only one Afon Ebok ? alias Afonmbuk that signed for Plot 19 for Ikot Ebiyan. The learned trial judge said counsel rather traced the title of the Respondents to Plot 18 to the Deed of Indenture Surrender dated 7/9/59 between Pamol Ltd. the successor of Africa Association and

Chief J. K. Usoro and others, this can be seen in Ex. 5 and Ex. 23. Whereas in that 1959 Indenture of Surrender, the proviso clearly states that the claimant must be the landlord or their predecessors in-title where plots have been particularly delineated and described in Plan attached to the Lease of 12, April, 1918. The Appellants cannot trace their root or title to Asamudo who signed for the Lease or John King Usoro who signed for the release. Both Asamudo and John K. Usoro are the Appellants? senior step-brother who signed on behalf of the Appellants. Again, it is John King Usoro, Wilson Uko and others that donated of Plot 18 bordering at Etoafia tree to the defendants ancestors in Ikot Ebiyan.

He submitted further that the visit to the locus in quo established recent acts that constitute concurrent possession, which accords with the Appellants case that they are the original owner of Plot 18, their forebear gave the Southern Part to the Respondents forebear. He submitted that the position of the law is that there cannot be concurrent possession, the party who prove better title is deemed to have possession. This he said is unlike the

Respondents who claimed ownership of the entire Plot 18, without establishing their root of title by credible evidence. Moreso, in the course of the visit to the locus in quo, it was discovered that the donated of Plot 18 to Ebiyan was clearly demarcated in the Appellants Plan tendered as Exhibit 1.
He urged us to hold that Appellants proved their case on the balance of probabilities.

On issue three, learned counsel for the Respondents submitted first that while the Appellants claimed only a portion of Plot 18 in dispute the Respondents led evidence in Exhibits 14, 15 and 16 showing that it was their ancestors who actually leased the entire Plot 18 [not a portion] to the Lessee?s therein, which metamorphosed in the Indenture of Release in Exhibit 23 in line with their traditional history which was accepted by the learned trial judge when the Court stated at page 772 ? 773 record of appeal to be unchallenged, cogent, consistent and was linked up in the devolution process without mysterious or fanciful occurrences up to the present defendants [Respondents].

?Secondly, that while the Appellants claimed that a portion of Plot 18

in dispute was given to the ancestors of the Respondents as members of Ikot Ebiyan compensation for helping them [the Appellants? ancestors] to win a tribal war that took place between Idua and Afaha Clans of Eket, the Appellants at the trial failed to prove that such war ever took place or such grant or the fact that the Respondents are from Ikot Ebiyan and not Ikot Ebok village.

He submitted further that PW1 and PW2 under cross examination at pages 718 and 721 of the record admitted that the Respondents were the ones who own the land wherein Nobles International School is situate, the Respondents owns the Restaurant and the land opposite the restaurant and indeed owns the Plot 18 in dispute.

?Thirdly, that the Appellants who tendered exhibit 7 as the Survey Plan showing the entire Plot 18 failed to connect same and identify the area called Plot 18 in their own plan of land in dispute as per Exhibit 1, and thus had failed to prove the boundaries and identity of the Plot 18 which they claimed to be their land despite the fact that the Respondents had right from their pleadings and evidence joined issues with the Appellants on the issue of gift

or grant of a portion of the Plot 18 to the ancestors of the Respondents by the Appellants ancestors.

This is how the Respondents as was the case with the Appellants presented their submissions on issues One and Two as applying to the determination of issue three. Learned counsel for the Respondents concluded that going by the totality of the evidence, the Appellants did not prove their case to entitle them to judgment, because the traditional history of the Appellants when evaluated and tested with recent acts of possession and ownership left much to be desired.

RESOLUTION OF ISSUE THREE
First, I adopt my decision on issues one and two as applicable to issue three. The Appellants in this case might have provided a credible traditional history, but they nevertheless failed to prove some of the very important averments and/or allegations in their pleadings. For example, their difficulty in actually proving that they gave a portion of Plot 18 to the ancestors of the Respondents for assisting them during a war was to my mind very critical to either their proof of title or their establishing a better title. This is because the totality of the

evidence adduced shows for whatever reason that the Respondents were in undisturbed possession of the Southern Part of Plot 18. This coupled with the fact that the description of the Appellants land in Exhibit 7 vis–vis Exhibit 1 only tallied with the description of the portion of Plot 18 which they claimed to have given to the Respondents.

Relatedly, where as in the instant case, a plaintiff fails to establish the identity of the land to which his claim of ownership or title relates, whatever evidence, whether oral or documentary, he produces at the trial cannot in law, ground

a declaration or title in his favour. See OTANMA V. YOUDUBAGHA [2006] 2 NWLR [PT. 964] 337.

In the instant case, the learned trial judge was right to have dismissed the Appellants case, the Respondents having established a better title to the land in dispute.
Issue three is resolved against the Appellants.

Having resolved the three (3) issues in this appeal against the Appellants, the appeal lacks merit and it is accordingly dismissed.
N30,000.00 costs is awarded in favour of the Respondents.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in

advance, the erudite leading judgment delivered by my learned brother: Mojeed Adekunle Owoade, JCA. I concur, in toto, with the reasoning and conclusion in it. l too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in the leading judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother MOJEED ADEKUNLE OWOADE, JCA afforded me the opportunity of reading in advance the judgment just delivered. I agree with reasoning and resolution of the issues distilled for determination in this appeal. I have nothing to add.
?I also abide by the orders made in the leading Judgment.

Appearances:

Patrick Ekuri, Esq.For Appellant(s)

Aniefiok Utuk, Esq.For Respondent(s)

Appearances

Patrick Ekuri, Esq.For Appellant

AND

Aniefiok Utuk, Esq.For Respondent