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ABAAH & ANOR v. URUM (2022)

ABAAH & ANOR v. URUM

(2022)LCN/15933(CA) 

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Tuesday, March 29, 2022

CA/OW/208/2015

Before Our Lordships:

James Gambo Abundaga Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

1. ABAAH OKO ABAAH 2. ABAAH KALU ABAAH NIGERIA APPELANT(S)

And

CHIEF IFEAGWU EKE URUM RESPONDENT(S)

 

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It is settled law that the issue of jurisdiction is the life blood of any adjudication. It is so fundamental that it must be resolved before any other step is taken in the proceedings. Jurisdiction goes to the competence of the Court or tribunal to entertain a cause or matter. Any proceeding conducted without jurisdiction amounts to a nullity and any decision therein is liable to be set aside. See Shell Petroleum Dev. Coy of Nigeria Ltd. V. Anaro (2015) 12 NWLR (Pt. 1472) 122 or 185.

It is against this background this Court considers and determines whether this action is statute-barred or not. In resolving this contention this Court will examine the pleadings of the Respondent (Claimant), in particular the statement of Claimant. This is against the backdrop of the decision in the Mulima V. Usman (2014)16 NWLR (Pt. 1432) 160 at 199, where it was held that in determining whether a case is statute-barred, the Judge is limited to the writ of summons and statement of claim, without recourse to the statement of defence or any other document or process. In the case of Asaboro V. Pan Ocean Oil Corporation (Nig.) Ltd (2017) 7 NWLR (Pt. 1563) 42 at 68, it was equally the decision of the Apex Court that the Court could examine the originating process, statement of claim, together with the evidence on record where that has taken place, to know when the wrong in question occurred and compare it with the date the originating process was filed in Court. PER BOLA, J.C.A.

WHETHER OR NOT A REGISTRABLE/INSTRUMENT WHICH HAS NOT BEEN REGISTERED IS ADMISSIBLE TO PROVE EQUITABLE INTEREST AND PAYMENT OF PURCHASE PRICE

It is settled law that a registrable/instrument which has not been registered is admissible to prove equitable interest and payment of purchase price. If the purpose of tendering the documents is to show that money changed hands and there was a transaction between party and the original owner, the document is admissible. See Agboola V. United Bank for Africa (2011) 11 NWLR (Pt 1258) 375 at 405. Where the purchaser of land is in possession by virtue of a registrable instrument that has not been registered and paid the purchase money, he has acquired equitable interest which is as good as legal estate. Registrable instrument not registered, is admissible to prove equitable interest and payment of purchase money or rent. See Etajata V. Ologbo (2007) 16 NWLR (Pt. 1061) 554 at 601 – 602.
The document can be tendered to show that money had changed hand, and was a transaction between the purchaser and the original owner. Refer to Atanda V. Commissioner for Lands and Housing Kwara State (2018) 1 NWLR (Pt 1599) 32 at 55.
PER BOLA, J.C.A.

ADEMOLA SAMUEL BOLA, J.C.A.:(Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Justice, Abia State Holden at Ohafia, coram Hon. Justice A.C. Chioma delivered on the 3rd of December, 2014. Judgment was entered in favour of the Claimant against the Defendant as per the reliefs claimed by the Claimant. The sum of N20,000.00 was also awarded to the Claimant against the Defendant.

Dissatisfied with this Judgment, the Defendant/Appellants appealed against the decision of the lower Court. The Original Notice of Appeal was filed on 17/12/2014. The Amended Notice of Appeal was filed on 21/12/2017. The Record of Appeal was deemed transmitted to this Court on 16/10/2017. The Appellants’ Brief of Argument was deemed filed on 11/2/2019. The Respondent filed no Brief of Argument.

BACKGROUND FACTS
The Claimant/Respondent at the High Court of Justice of Abia State sitting at Ohafia, Abia State instituted an action against the Defendant/Appellants on 27th March, 2013 claiming the following reliefs.
i. A Declaration that the Claimant is entitled to a Statutory Right of Occupancy in respect of a parcel of Land situated on a Slope Hill Down Inuda College (Ugwu Court), Near Rest House Ameke Abiriba in the Ohafia Local Government Area of Abia measuring approximately 315. 360 Square metres and more particularly delineated and described in Survey Plan Number DS 2315/1M 420/85 with Beacon Numbers OK 19968, OK 19969, OK 19970 and thereon verged red.
ii. A PERPETUAL INJUNCTION restraining the Defendants either by themselves, their agents, servants, workmen, privies or others however from further entry and otherwise interfering with the rights of the Claimant in relation to the landed property aforesaid.
iii. The Sum of Eight Hundred thousand Naira (N800,000:00) only being damages for trespass committed by the Defendant.

The matter proceeded to trial with the taking of witnesses, presentation and adoption of written addresses. Thereafter Judgment was delivered and the Court found in favour of the Claimant, the Respondent in this appeal with N20,000:00 cost against the Defendant/Appellants.

It was the Defendant/Appellants contention that the cause of action commenced in 1998 while the Claimant/Respondent instituted action against the Appellants in 2013, Fifteen (15) years thereafter. That by the Limitation Laws of Abia State, the action was statute barred as no action concerning any right or interest in land should be founded after ten (10) years the cause of action arose. That the Court below lacked the jurisdiction to adjudicate over the matter, yet Court entertained the action and found in favour of the Respondent.

Consequently, the Defendant/Appellants brought this appeal.

ISSUES FOR DETERMINATION
Flowing from the Grounds of Appeal as contained in their Notice of Appeal filed on December 17th, 2017, the Appellant distilled four issues for determination in their Brief of Argument. They are:
1. Having not effectively proved that he is entitled to the declaration of title to the land in dispute, whether the lower Court was not wrong in awarding title to the Respondent (Claimant) on the basis of the weakness of the Appellants’ (Defendants’) defence, (Grounds 1, 2, 3, 4 and 5 ).
2. Whether the lower Court did not fall into grave error by relying on two land registered documents admitted as Exhibits ‘B’ and ‘B1’ used by the Respondent (Claimant to prove ownership of the land in dispute grounds 3, 4, and 7).
3. Whether the lower Court did not fall into serious error when it made a case for the Respondent (Claimant) and admitted Exhibits ‘B’ and ‘B1’ as evidence of payment whereas it was relied on to prove title and ownership of land (grounds 2 and 4.)
4. Whether the lower Court did not fall into grave error and acted without jurisdiction when it adjudicated over the action that was statute barred (ground 6).

ARGUMENT ON THE ISSUES
On issue No.1, whether the lower Court was not wrong in awarding title to the Respondents (Claimant) on the basis of the weakness of the Appellants’ (Defendants’) defence. Appellants’ Counsel submitted that the Plaintiff who is claiming a declaration of title to land bears the burden of establishing by preponderance of evidence, his claim to the land in dispute. Thus it is for the Plaintiff to prove his case on the evidence and he will fail if he does not succeed in establishing before the Court. The Court must be satisfied as to the precise nature of the title he claims. He must proved his case and the type of title he has.

It was submitted that the Respondent tried to establish his ownership of the land in dispute relying on Exhibit ‘B’ and ‘B1’ to evidence the root of title of the land in dispute. That the Respondent’s witnesses evidence and the documents were pleaded to the effect that the Respondent purportedly acquired the land in dispute by purchase. It was argued that the Respondent’s reliance on Exhibit B and B1 to prove his title to the land in dispute could not avail him as there were manifest material contradictions in the evidence given by the Respondent’s witnesses (CW1 and CW2). Under Cross-examination the CW2 admitted that the land in dispute was purportedly sold to the Respondent in 1987 or 1988. The CW1 testified that the Respondent acquired it in 1982. That the CW2 testified that he gave the Respondent Power of Attorney but what was tendered were Exhibit B and B1 which were unregistered purchase agreements. Notwithstanding this contradiction, the lower Court went on to hold that the Defendants (Appellants) abandoned their cases and failed to challenge the evidence of the Respondent (Claimant).

It was also submitted that it was a perverse decision by the lower Court to hold that the Claimant case succeeded because of lack of defence or weak defence of the Defendants.

It was argued that in all cases of declaration of title to land, the Plaintiff must succeed on the strength of his own case and not on the weakness of the defence. That where the Plaintiff fails to discharge the cause placed on him, the weakness of the Defendant’s case will not help him and the proper Judgment is for the defence. Referred to the case Woluchem V. Gudi (1985) SC 281, Usman V. Garke (1999) 1 NWLR (Pt. 587) 466; Akoledowo V. Ojubutu (2012) 16 NWLR. It was submitted that in a claim for declaration of title to land, the Plaintiff must satisfied the Court by credible evidence and the claim is not satisfied by admission.

Issue No. 2 is whether the lower Court did not fall into grave error by relying on two unregistered land documents admitted as Exhibits B and B1 used by the Respondent (Claimant) to prove ownership of the record to decide the case in favour of the Respondent.

It was submitted that the Judgment of the lower Court reveal that the said Court relied on the unregistered land documents admitted as Exhibits ‘B’ and ‘B1’ to decide the case in favour of the Respondent. That the Respondent relied on the documents as proof of his ownership of the land in dispute. It was not tendered as proof of receipt of purchase or acquisition of equitable interest on the land in dispute. That the lower Court found that the documents were not registered though they were registrable instruments, yet the Court admitted them in evidence and relied on them to award declaration of title in favour of the Respondent.

It was argued that a registerable instrument which had not been registered could not be pleaded and could not be used to establish title in a case of declaration of title to land. The following cases were cited Dauda V. Bamidele (2000)9 NWLR (Pt. 671) 199 at 212; Usman V. Garke (supra) P. 466.

The Appellants Counsel also submitted that the lower Court fell into error by holding that by not objecting to the admissibility of Exhibit ‘A’ (Survey Plan in respect of the land in dispute) the Defendants (Appellants) did not wish to make the identity of the land in dispute an issue. This inspite of the fact that the Appellants joined issues on the identity of the land in dispute and the disputed area.

It was contended that the lower Court premised its decision on a wrong premises of the implication of not objecting to the admissibility of Exhibit ‘A’ by the Appellant. That they did not join issues with the Respondent which formed the lower Court’s belief that the Respondent discharged the burden of proof that he was entitled to a declaration of title over the land in dispute and that the decision resulted in grave miscarriage of Justice to the Appellants.

Issue No.3 is a duplication of Issue No.2 and the submissions in respect of issue No.2 were also repeated in respect of the 3rd issue. I need not dissipate energy in reviewing these submissions.

Issue No.4 is whether the lower Court did not fall into grave error and acted without jurisdiction when it adjudicated over the action that was statute barred. Referring to the statements of claim and the witness statement on Oath, the Appellant contended that the cause of action of the Respondent against the Appellant arose in 1998, when, according to the Respondent, the 1st Appellant trespassed on the land in dispute in 1998. He referred in particular to paragraph 8 of the Written Statement on Oath of the Respondent which date was also pleaded.

It was submitted that a cause of action accrues on the date on which the incident giving rise to the cause of action arose. Okenwa V. Military Governor Imo State (1997) 4 NWLR (Pt. 507) 154 at 167.

It was argued that the cause of action began to run from 1998 when it was alleged that the 1st Defendant was seen on the land in dispute. Referred to Nigeria Ports Authority Plc V. Lotus Plastics Ltd (2005) 19 NWLR (Pt. 959) 158 at 191. That a case cannot be instituted after the limitation period. That the Respondents claim and statement of claim show that the action was instituted on March 27th, 2013 while the cause of action arose in 1998, fifteen years after.

Counsel referred to Section 3 of the Limitation Law, Cap 114, Laws of Abia State 2005, which prescribes a maximum of ten (10) years time limitation. That where a suit is statute-barred, the proper order to make is an Order of dismissal relying on the case of NPA Plc V. Lotus Plastics (supra).

That if an action is statute barred, the Court lacks jurisdiction to hear the matter.

Finally, Counsel urged this Court to allow this appeal and set aside the Judgment of the lower Court.

It is pertinent to reveal that the Respondent failed to file Respondent’s Brief in this appeal.

The Appellant distilled four issues for consideration and determination in this appeal. However, for the purpose of resolving these issues, this Court shall compact the four issues into two issues as follows:
1. Whether upon the state of the oral and documentary evidence placed before the lower Court, it could be determined that the trial Court was right when it entered Judgment in favour of the Respondent.
2. Whether the Respondent’s action was statute barred.

RESOLUTION OF ISSUES
The starting point is the second issue. This issue question the competence of the case before the lower Court and the jurisdiction of the trial Court to entertain and adjudicate over the matter. It is settled law that the issue of jurisdiction is the life blood of any adjudication. It is so fundamental that it must be resolved before any other step is taken in the proceedings. Jurisdiction goes to the competence of the Court or tribunal to entertain a cause or matter. Any proceeding conducted without jurisdiction amounts to a nullity and any decision therein is liable to be set aside. See Shell Petroleum Dev. Coy of Nigeria Ltd. V. Anaro (2015) 12 NWLR (Pt. 1472) 122 or 185.

It is against this background this Court considers and determines whether this action is statute-barred or not. In resolving this contention this Court will examine the pleadings of the Respondent (Claimant), in particular the statement of Claimant. This is against the backdrop of the decision in the Mulima V. Usman (2014)16 NWLR (Pt. 1432) 160 at 199, where it was held that in determining whether a case is statute-barred, the Judge is limited to the writ of summons and statement of claim, without recourse to the statement of defence or any other document or process. In the case of Asaboro V. Pan Ocean Oil Corporation (Nig.) Ltd (2017) 7 NWLR (Pt. 1563) 42 at 68, it was equally the decision of the Apex Court that the Court could examine the originating process, statement of claim, together with the evidence on record where that has taken place, to know when the wrong in question occurred and compare it with the date the originating process was filed in Court.

Consequently, I proceed to consider the pleadings of the Respondents, particularly the originating processes to look out for when the cause of action accrued or arose and when this action was instituted.

In paragraphs 7, 8 and 9 of the statement of Claimant, the Claimant/Respondent averred as follows:
7. Since the year 1982, the Claimant has been in peaceable and unchallenged possession of the said piece of land until the year 1998 when he saw the 1st Respondent in (Sic) the land.
8. When the Claimant confronted the 1st Defendant, the 1st Defendant informed him that they wanted the land and was only examining it. The 1st Defendant even assured the Claimant that as soon as his brother came back from overseas, they would come and pay for the land.
9. Since then, the 1st Claimant had been waiting for the return of the 1st Defendants brother all to no avail.

The above averments of the Claimant metamorphosed to his evidence before the trial Court as contained in paragraphs 8, 9 and 10 of the Written Statement on Oath of the Claimant’s witness.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

It is equally pertinent to note that in the writ of summons and the statement of claim, the Claimant claimed as follows:
“The Sum of Eight hundred thousand Naira (N800,000:00) only being damages for trespass committed by the Defendants”

In the light of the above paragraphs, is it conclusive that the cause of action arose in 1998 when the Defendant/Appellant was found on the land? That the Defendant/Appellant was found on the land, is it suggestive that he had taken possession or encroached on the land with the intention of acquiring it? It is difficult to resolve that the Appellant began to trespass on this land in 1998. This is against the backdrop of paragraph 8 of the statement of claim where it was averred thus:
8. When the Claimant confronted the 1st Defendant, the 1st Defendant informed him that they wanted the land and was only examining it. The 1st Defendant even assured the Claimant that as soon as his brother came back from overseas they would come and pay for the land.

The above averment is indicative that when the Appellant was seen on the land, he did not claim that he was the owner of the land or had taken possession of it. He indicated his intention of purchasing the land as soon as his brother was back from abroad.

It could not be said and the Claimant did not claim that his possession of the land was disturbed in 1998 when he found the Defendant on the land. This is against the background that trespass to land is an invasion by another person on the land in the possession of the Plaintiff. See Gbemisola V. Bolarinwa (2014) 9 NWLR (Pt. 1411) 1 at 26.

It is therefore difficult to conclude that the 1st Defendant being on the land in 1998 without more encroaching on the land claimed by the Claimant or that he claimed title to it. Paragraph 8 clearly reveal that the 1st Defendant was not asserting ownership or title to the land when he said in clear terms that he would pay for the land as soon as his brother was back from overseas. It is therefore clear that the cause of action in this case instituted at the lower Court did not accrue or arise in the year 1998.

In the absence of any other date in the statement of claim suggesting when the cause of action arose, it cannot be said that this action was caught by the limitation law of Abia State or that the action is statute-barred. This action is therefore not statute-barred. Issue No. 2 is therefore resolved in favour of the Claimant/Respondent.

In respect of issue No.1, the Appellants’ Counsel contentions can be subsumed under the following premises:
(1) That the Respondent’s reliance on Exhibits B and B1 to prove his title to the land in dispute could not avail him as there were manifest contradictions in the evidence given by the Respondent’s witnesses (CW1 and CW2).
(2) That the lower Court held that the Claimant’s case succeeded because of lack of defence or weak defence by the Defendants, whereas, the Claimant must succeed on the strength of his case and not the weakness of the defence.
(3) That the lower Court relied on two unregistered land documents (Exhibits B and B1) to decide the case in favour of the Respondent even though the lower Court found that the documents were not registered even though they were registrable instrument, yet the Court relied on then, to award declaration of title to the Respondent.
(4) That the lower Court predicated its decision on  wrong premises on the implication of not objecting to the admissibility of Exhibit A (Survey Plan in respect of the land in dispute).

In respect of the first premise, it was submitted that the Claimant and his witness contradicted themselves when the CW2 stated under Cross-examination that he sold the land in dispute to the Claimant about 1987 or 1988 and that he donated power of Attorney to the Claimant whereas the Claimant in his statement on Oath stated that he bought the land in 1982 that these were material contradictions in the evidence given by the CW1 and CW2 and therefore Exhibits B and B1 could not be relied on to prove the title of the Respondent. More particularly that the CW2 claimed that he gave the CW1 Power of Attorney whereas what was tendered were unregistered purchase agreements.

There is no doubt both the CW1 and the CW2 gave contradictory evidence as to when the land was sold to the CW1. The CW1 said in examination in chief that the land was sold to him by the late Anyanso Ezikpe (deceased) and Prince Nnana Ezikpe for the sum of N3,000:00 (Three thousand Naira) on 12th day of December, 1982. The CW2 in his examination in chief testified that both himself and his brother sold the land to the Claimant (CW1) for the sum of N3,000:00 (Three thousand Naira) in 1982. However, under Cross-examination, CW2 testified that he sold the land in dispute to the Claimant about 1987 or 1988.

Are the contradictions as to the date the land was sold to the CW1 material and fatal to the Claimant (Respondents) action? It could be seen the CW1 gave 1982 date and the CW2 under examination in chief confirm this 1982 date. It was under Cross-examination that the CW2 crumbled and gave a contradictory date of 1987 or 1988 that he sold the land to the CW1. This contradiction did not take shine of the fact that the land was sold to the CW1 by the CW2. The CW2 said under examination in chief he sold the land in 1982 which is consistent with evidence of the CW1 that the land was sold to him in 1982 by the CW2. Against the backdrop, I do not think that the contradictions as to dates is material and of any deep effect against the case of the CW1 more particularly that the CW2 consistently maintained he sold the land to the CW1.

It was also the contention of the Appellant that the CW2 testified that he gave the CW1 Power of Attorney when he sold the land to him, whereas the CW1 tendered purchase agreements instead of the power of Attorney, which was not tended. He urged the Court to invoke Section 167 (d) of the Evidence Act 2011. I do not think any inconsistency as to the date of the sale of the land which inconsistency is immaterial will affect Exhibits B and B1 respectively. Nor can it be concluded that the tendering of these Exhibits instead of the Power of Attorney which CW2 testified he donated to the CW2 would have any fatal effect to the admissibility of Exhibits B and B1 and its use thereof. Moreso, that Exhibits B and B1 were pleaded by the Claimant (Respondent) in his statement of claim; and the Exhibits relevant to the sale of the land to the CW1 by the CW2, and were admissible in Law. By reason of this, the Claimant (Respondent) could effectively rely on the Exhibits, having been pleaded and are relevant to the fact in issue – the land in dispute. Once the evidence is relevant to the fact in issue, it is admissible. See Kayili V. Yilbuk (2015) All FWLR (Pt. 775) 347 at 383; (2015) 7 NWLR (Pt. 1457) 26 at 69.

The other ground canvassed by the Appellant relating to Exhibits B and B1 was the contention that the Court relied on their documents to decide the case in favour of the Respondent even though the lower Court found that the Exhibits were not registered. The lower Court relied on them to award declaration of title in favour of the Respondent. Exhibit ‘B’ is an agreement made on the 5th day of October, 1971 between Onuma Onwuka and Ugo Ezikpe Ogbuanu to the effect that Chief Onuma Onwuka sold to Mrs Ezikpe Ogbuanu a parcel of land for building at Slope Hill Down Inude, near the rest house, Abiriba in the sum of Hundred and Fifty Five Pounds ($155).

Exhibit B1 was an agreement made on 12/12/82 to the effect that Mr. Anyanso Ezikpe and Prince Ezikpe of Nde Ezikpe-Ogbuanu’s Compound sold to Mr. Efegwu Eke Union of Nde Eke Urum’s compound a piece of land situated along College Road Abiriba for N3000: (Three Thousand Naira) only.

It is prima facie clear that the documents were made in the course of transaction of sale of land. Suffice to say, they are Purchase Agreement. It is equally obvious that they are not registered. Even though they are registrable documents.
It is settled law that a registrable/instrument which has not been registered is admissible to prove equitable interest and payment of purchase price. If the purpose of tendering the documents is to show that money changed hands and there was a transaction between party and the original owner, the document is admissible. See Agboola V. United Bank for Africa (2011) 11 NWLR (Pt 1258) 375 at 405. Where the purchaser of land is in possession by virtue of a registrable instrument that has not been registered and paid the purchase money, he has acquired equitable interest which is as good as legal estate. Registrable instrument not registered, is admissible to prove equitable interest and payment of purchase money or rent. See Etajata V. Ologbo (2007) 16 NWLR (Pt. 1061) 554 at 601 – 602.
The document can be tendered to show that money had changed hand, and was a transaction between the purchaser and the original owner. Refer to Atanda V. Commissioner for Lands and Housing Kwara State (2018) 1 NWLR (Pt 1599) 32 at 55.

Without doubt and flowing from the above premises, it is clear that the document/Exhibit establish that the Respondent has equitable interest in the land in dispute particularly that the documents show payment of money and transaction between the Respondent and the original owner of the land. That is between the Respondent Chief Efeagwu Eke Union and the Ezikpe Brothers of Nde Ezikpe Ogbuanu’s Compound Abiriba.

It is evident on Exhibit B that the Agreement was made on 8/10/1971 and was tendered on 21/01/2014, while Exhibit B1 was made on 12/12/82 and tendered on 21/01/2014. Invariably, Exhibit B was 43 years old when it was tendered while Exhibit B was 32 years old when it was tendered at the lower Court. They were made over twenty years ago. The position of the law is that these documents in law remain valid and need no further proof. Under Section 162 of the Evidence Act 2011, it is clear that the status or import of Exhibit ‘B’ and ‘B1’ being documents made in 1971 and 1982 as a form of land transaction enjoy the presumption of sufficient evidence of the truth of the facts, matters and descriptions contained in them. For the avoidance of doubt, Section 162 of the Evidence Act 2011 provides:
“Recital statement and description of facts, matters and parties contained in deeds, instrument, Act of the National Assembly, or statutory declaration twenty years old or more at the date of the contract in which such deed, instrument or other document is sought to be relied upon shall, unless and except so far they may be proved to be inaccurate be taken to be the sufficient truth of such facts or matters and description.”
See the case of Owoade V. Omitola (1988) NWLR (Pt 77) 413 and Ayanwale V. Odusami(2011) LPELR 8143 (SC).
Without doubt, the above decisions and provision clearly render Exhibit B and B1 not only admissible but also render its content reliable and sufficient truth.

Consequently, this Court finds nothing wrong in the decision of the learned trial Judge relying on these Exhibits to hold that the Respondent (Claimant) proved his title in respect of the land disputed. In other words, the lower Court did not fall into any error by relying on the two unregistered documents, (Exhibits B and B1) tendered by the Respondent to prove ownership of the land in question by the Respondent.

It was also the Appellants’ submission that the lower Court fell into error by holding that by not objecting to the admissibility of Exhibit A (Survey Plan in respect of the land in dispute) the Defendants/Appellants did not wish to make the identity of the land in dispute an issue. This was inspite of the fact that the Appellants joined issues on the identity of the land in dispute and the dispute area.

Going through the pleadings of the Claimant and the Defendants, the identity of the land in dispute was not clearly made an issue. Paragraphs 11 and 14 of the Joint Statement of Defence of the Defendants (Appellants) never suggested that there was dispute. In paragraphs 2 and 3 of the joint Statement of Defence of the Defendants (Appellants), the Defendants averred as follows:
2. Paragraph 1 of the Statement of Claim is denied. The land in dispute forms part of the defendant’s land which the defendant’s father acquired in 1967 and built residential home since around 1973 but had left unfenced till date. The land is known as and situate at “Agbadam/Agbor Cast Ameke, Abiriba in Ohafia Local government Area.
3. Paragraph 2 of the Statement of Claim is denied. The land of the defendant which includes the portion now in dispute was acquired shortly after the Nigeria/Biafra Civil War in 1967 by Messrs Oko Abaah and Kalu, then trading as partners under the name and style of O.A. Arunsi and Brothers…

From the above averments in the Appellants’ joint Statement of Defence, it is crystal clear that the parties are ad idem as to the land identity and certainty of the land being claimed by both. A journey through the labyrinth of the pleadings of the Appellants and the Respondent reveals that the identity and the certainty of the disputed land is not in dispute. The parties were clear as to the identity of the land in dispute. Even if different names were ascribed to the land contested. See Ojo V. Azam (2001) 4 NWLR (Pt 702) 57 at 68. It is germane to assert that the identity of land will be in dispute if the Defendant in his Statement of Defence makes it so specifically disputing the area or size carved of the location as described in the Statement of Claim or the Claimant plan. See Adewale V. Olude (2003) All FWLR (Part 157) 1074 at 1056. Ilona V. Idakwo (2003) 11 NWLR (Pt. 830) 53 at 85. The Defendants never made the identity of land an issue in their joint Statement of Defence. Needless to say that Exhibit A – the Survey plan tendered by the Claimant (Respondent) which reflects the features and the precise boundaries of the land claimed, discharges the Respondent the burden of showing with certainty the area of land disputed. See Agbeje V. Ajibola (2002) 2 NWLR (Pt. 750) 227 at 147. Consequently, I am in agreement with the decision of the lower Court that the Claimant tendered the said Exhibit A without objection from the defendants were not disputing the identity of the land as contained in Exhibit A and did not wish to make it an issue. Clearly, there was no dispute as to the identity of the disputed land.

Another ground of contention of the Appellants relates to the holding of the trial Judge at page 96 of the Record of Appeal thus:
“Apart from the foregoing, the Defendants did not lead any evidence in support of their case. There is no doubt that the law is clear that a party is not bound to give evidence in support of his case if he can prove his case otherwise. But whereas in this case, certain allegations are made against the defendants on a material point which requires a denial by the Defendants and the Defendants failed to deny same, such fact will be deemed admitted”.

Prior to this holding, the lower Court had earlier raised the main issue in the land dispute between the parties to be whether the Claimant fenced the land he bought from Ogba Kalu Anya and the children of Mrs. Ugo Ezikpe Ogbuanu when he was fencing his land. The lower Court referred to the evidence of the Claimant that he did not fence the land he bought from the children of Mrs. Ezikpe Ogbuanu when he was fencing his land. It was his (Claimant/Respondent) evidence that the said land was the land in dispute. That the Claimant tendered Exhibit A (Survey Plan) and Exhibit B and B1. The lower Court also referred to the evidence of the CW1 (Claimant) which facts the lower Court held were never denied by the Defendants, who did not give evidence at the trial. That the Defendants pleaded Survey plan which they never tendered. That the Defendants did not lead any evidence in support of their case. The lower Court held that certain allegations were made against the Defendants on material point which require denial, which they failed to deny and by reason of same, such facts are deemed admitted.

From the records of the proceeding at the lower Court and in particular the evidence of the CW1, CW2 in support of the Respondent’s case, the documents tendered Exhibit ‘A’, Survey plan and Exhibit B and B1 which clearly were in support of the Claimant/Respondent’s case. Whereas, the Defendants never tendered any document in support of their case. The Claimant (Respondent) tendered Exhibits A (Survey Plan) and B – B1 to show the extent of the land being claimed by them. The Defendants (Appellants) never tendered any Survey plan to show the extent of land claimed. There is no doubt the burden of proof is on the claimant (Respondent) in the lower Court who was seeking Declaration of title to the disputed land. Taking into consideration the totality of the evidence adduced by the Appellants and Respondent and the findings of the learned trial Judge, I am persuaded by the decision of the lower Court that the Defendants did not lead evidence in support of their case.

The Claimant/Respondent adduced potent, reliable, compelling, convincing and dependable oral and documentary evidence to establish their case. The Respondent discharged the burden of proof placed on him by the Evidence Act, Section 134 which requires that the burden shall be discharged on the balance of probability in all civil proceedings. Suffice to say that civil cases are determined on preponderance of evidence and balance of probabilities. See Agala V. Egwere (2010) All FWLR (Pt. 532) 1609.

It is evidentially clear that the lower Court was not wrong in awarding title to the Respondent (Claimant) on the basis that the Claimant was able to establish his case to entitle him to the declaration of title to the land in dispute. On the balance of probabilities and preponderance of evidence, the Claimant (Respondent) succeeded on the merit of the case, not on the basis of the weakness of the Appellants’ case.

Revisiting the 1st issue distilled by this Court in this appeal and flowing from the consideration of the appeal on its merit, this Court holds that in the light of the state of the oral and documentary evidence placed before the lower Court by the Respondent (Claimant), it is determinable that the trial Court was right when it entered Judgment in favour of the Respondent (Claimant).

Against this backdrop, all the issues raised in respect of the merit of the appeal is resolved against the Appellants and in favour of the Respondent.

This appeal lacks merit. The Judgment of the lower Court is hereby affirmed. This appeal is accordingly dismissed.
Parties are to bear their respective costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Samuel Ademola Bola, JCA.
I agree with the reasoning and conclusion reached by his Lordship on the issues. I have nothing useful to add.
I abide by the consequential order made in the lead judgment.

IBRAHIM WAKILI JAURO, J.C.A.: I read before now the draft judgment just delivered by my learned brother Samuel A. Bola, JCA. I entirely agree with the reasoning and conclusions reached. I too dismiss the appeal as lacking in merit.

Appearances:

L.D. Orji For Appellant(s)

No Counsel For Respondent(s)