AGBON-OJEME v. SELO-OJEME & ORS (2020)

AGBON-OJEME v. SELO-OJEME & ORS

(2020)LCN/14105(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/298/2008

Before Our Lordships:

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

GODWILL EROMOSELE AGBON-OJEME (Substituted By Order Of Court Dated 22nd Day Of October 2018) APPELANT(S)

And

MR. JUDE SELO-OJEME (Substituted By Order Of Court Dated 18TH Day Of October 2010) 2. SELO-OJEME AND SONS LTD (SPARTA POULTRY) 3. FIRST BANK OF NIGERIA PLC RESPONDENT(S)

RATIO

FACTORS TO BE CONSIDERED IN RELYING ON A PLEA OF LACHES AND ACQUIESENCE

The party relying on the plea of laches and acquiescence must in order to succeed not only plead but also lead credible evidence to prove the following essential elements of the plea of laches and acquiescence namely: A. That the party relying on the plea was in fact mistaken as to his own rights over the land; B. That the party relying on the plea had in reliance on his mistake expended money on the land; C. That the other party knew of the existence of his own right which is inconsistent with the right over the land claimed by the party relying on the plea; D. That the other party knew of the mistaken belief by the party relying on the plea of his right; E. That the other party encouraged the party relying on the plea expenditure of money. SeeMoss V. Kenrow (Nig.) Ltd (1992) 9 NWLR (Pt. 264) 207 @ p. 226. PER GEORGEWILL, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

In every appeal where the evaluation carried out by the trial Court is challenged, it is simply a call on the appellate Court to consider first whether or not the trial Court had properly evaluated the evidence led before it and if finds that the trial Court had not, then to proceed to re – evaluate the evidence in the printed record to determine if the trialCourt had made correct findings borne out by the evidence as led by the parties. It is the law that it is only where the trial Court had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re – evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the evidence led and the dictates of justice to the parties. Thus, unless and until an appellate Court arrives at such a conclusion the need for re – evaluation of evidence does not arise since an appellate Court has no business interfering with correct findings of a trial Court. See Williams V. Tinubu (2014) All FWLR (Pt. 755) 200. See also Amuneke V. The State (1992) NWLR (Pt. 217) 347; Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709; Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471; Woluchem V. Gudi (1981) 5 SC. 291; Enang V. Adu (1981) 11-12 SC. 25; Abisi & Ors. V. Ekwealor & Anor (1993) 6 NWLR (Pt. 302) 643; Igago V. The State (1999) 12 SCNJ 140 @ p. 160; Amala V. State (2004) 12 NWLR (Pt.888) 520. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Edo State, Coram: A. N. Ehigiamusoe J., in Suit No. B/368/1994: Joseph Agbon – Ojeme V. Chief Daniel Selo – Ojeme & Ors., delivered on 18/6/2003, wherein the Appellant’s Suit was dismissed for being statute barred as well as caught by the doctrine of laches and acquiescence and for lacking in merit, while granting in part the counter claim of the 1st & 2nd Respondents against the Appellant.

The Appellant was peeved with the said judgment and had appealed against it to this Court vide his Original Notice of Appeal filed on 23/7/2003 on three grounds of appeal at pages 109 – 110 of the Record of Appeal. The Record of Appeal was transmitted to this Court on 11/9/2008 but was deemed properly transmitted on 22/10/2018. With the leave of this Court, the Amended Notice of Appeal was filed on 19/10/2018 on eight grounds of appeal but was deemed properly filed on 22/10/2018. The Appellant’ s Amended brief was filed on 5/11/2018. The 1st & 2nd Respondents’ Amended brief was filed on 5/2/2019 but was deemed

properly filed on 20/2/2019. The 3rd Respondent’s brief was filed on 14/6/2019 but was deemed properly filed on 19/6/2019. The Appellant’s Reply brief to the The 1st & 2nd Respondents’ brief was filed on 17/6/2019. The Appellant’s Reply brief to 3rd Respondent’s brief was filed on 2/7/2019.

At the hearing of this appeal on 29/1/2020, I. Imadegbelo Esq., learned counsel for the Appellant, appearing with E. J. Megimenlen Esq., adopted the Appellant’s brief and reply briefs as their arguments and urged the Court allow the appeal and set aside the judgment of the Court below and to grant the claims of the Appellant against the Respondents and dismiss the counter claim of the 1st & 2nd Respondents. On their part, Santos Owooton Esq., learned counsel for the 1st& 2nd Respondents, appearing with R. O. Odediran Esq., adopted the 1st& 2nd Respondents’ brief as their arguments and urged the Court to dismiss the appeal and to affirm the judgment of the Court below. On its part, the 3rd Respondent, though duly served with hearing notice, was not represented by counsel but the 3rd Respondent’s brief was

deemed as argued.

By a Writ of Summons filed on 3/5/1994, the Appellant as Claimant and in his Amended Statement of Claim filed on 23/1/1995 claimed against the Respondents as Defendants inter alia as follows:
1. Declaration that the Plaintiff is the person entitled to statutory right of occupancy to the plot of land measuring 150 feet by 100 feet with the three buildings thereon now numbered 9, and 9A, 9B Sparta Lane, New Benin, Benin City.
2. An Order for payment to the Plaintiff by the 1st and 2nd Defendants the following rents…
3. An Order that the 1st and 2nd Defendants quit No. 9, 9A and 9B, Sparta Lane, Benin City, the 1st and 2nd Defendants having disputed the title of the Plaintiff with respect to the plot of land which the 1st Defendant had earlier in 1962 sold to the Plaintiff.
4. Declaration that the use of the Plaintiff’s land and buildings thereon as collateral for mortgages in the sum of N20, 000.00 and N500,000.00 without Plaintiff’s knowledge and consent is a fraud on the Plaintiff and therefore the entire transaction is null and void and of no legal effect whatsoever.
5. An Order

that the 1st Defendant convey with immediate effect the entire plot of land with the three buildings thereon to the Plaintiff.
6. An Order that the 3rd Defendant deliver a Deed of Release to the Plaintiff with respect to the said plot with immediate effect. See pages 1 – 3; 34 – 38 of the Record of Appeal.

Upon service, the 1st and 2nd Respondents filed their Joint Statement of Defense and Counter Claim, claiming against the Appellant the following reliefs, namely:
(a) N100, 000, 0000. 00 for libel in the Plaintiff’s published letter of 9/5/1994.
(b) N1, 000, 000. 00 as general damages for the acts of trespass Committed on several dates on the 1st Defendant’s building.
(c) An order of perpetual injunction restraining the Plaintiff by himself, his servants or agents from further acts of trespass on that parcel of land/building aforesaid.
(d) A declaration that the financial transaction between the 1st and 2nd defendants with the 3rd Defendant by way of mortgage, and provision of collateral security is proper, lawful and valid. See page 17 of the Record of Appeal.

At the Court below, the parties filed and exchanged

pleadings. The 1st and 2nd Respondents raised a point of law that the Appellant’s action was statute barred as well as caught by the doctrine of laches and acquiescence. Similarly, the 3rd Respondent also raised the same point of law in its Statement of Defense. On 18/7/1994, the 1st and 2nd Respondents filed a Motion on Notice praying the Court below to set the points of law down for hearing and determination and upon hearing the same, the Court below per C. 0. Idahosa, J., held that on the face of the averments in paragraphs 19 and 20 of the Appellant’s statement of claim raising the issue of trust, the issues of statute barred and laches and acquiescence cannot be determined without the benefit of a full hearing. See Pages 44 – 49 of the Record of Appeal.

The 1st and 2nd Respondents were dissatisfied with the said decision and had appealed to this Court in Appeal No. CA/B/125/1997, which appeal was subsequently heard and dismissed on 9/3/2000 per Akintan, JCA, (as he then was) holding inter alia that since it is clear from the pleadings that the Respondent therein bought the land and left it in the care of the 1st Defendant for specific

purpose, the 1st Defendant is regarded as a trustee in law and the claim being one for account, an equitable relief, is not barred by any limitation period and holding further however, that the issue of laches and acquiescence having been merely raised in the pleadings and since evidence was yet to be given at the time the objections raised were determined, the Court below was right in dismissing the objections on the ground that they were premature. See Ojeme V. Ojeme (2000) 13 NWLR (Pt. 685) 606.

The matter was then returned to the Court below for full hearing and determination on the merit before A. N. Ehigiamusoe J. The parties called witnesses and at the conclusion of hearing, their counsel filed and adopted their final written addresses. On 18/6/2003, the Court below delivered its judgment striking out and dismissing the Appellant’s Suit for being statute barred and caught by the doctrine of laches and acquiescence and also for lacking in merit, while granting in part the counter claim of the 1st and 2nd Respondents against the Appellant, hence this appeal. See pages 93 – 108 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
As can

be garnered from the pleadings and evidence, both oral and documentary, led before the Court below, the gist of the case of the Appellant as Claimant was that in February 1962, he requested his cousin, the original 1st Defendant/Respondent to look for a plot of land for him to buy in Benin City. On 21/2/1962, the 1st Respondent responded vide Exhibit A reserving one plot for him in a row of plots at the cost of £150.

On 28/2/1962 the 1st Respondent by Exhibit B requested for the payment of the £150 to enable him conclude with the arrangement. On 17/3/1962, the 1st Respondent by Exhibit C acknowledged the receipt of £90 from one Ben for the Appellant and assuring the Appellant that the plot now belongs to him and under his care and protection. The 1st Respondent admitted writing these letters to the Appellant. The properties were developed for the Appellant by the 1st Respondent from funds remitted to him by the Appellant. However, the 1st Respondent fraudulently used the title documents to the property he had already sold to the Appellant and were still in his name to the 3rd Respondent as collateral for facilities extended to the 1st

and 2nd Respondents and when requested to hand over these properties the 1st Respondent refused and has failed to render account to the Appellant for the use of these properties over the years.

On their part, the gist of the case of the 1st and 2nd Respondents as Defendants was that the original 1st Defendant one Chief Daniel Selo – Ojeme, now deceased was a cousin of the Appellant. On 21/2/1962, the 1st Defendant wrote a letter to the Appellant referring to an earlier letter of 18/2/1962 from the Appellant relating to the Appellant’s intention to have a plot of land and informing him of reserving one plot measuring 100ft x 100ft for him at the cost of £150. On 28/2/1962, the 1st Defendant requested for payment of the cost price. On 17/3/1962, the 1st Defendant acknowledged the receipt of a cheque for £90 and stating that the plot of land now belongs to the Appellant and his under the 1st Defendant’s ‘care and protection’ These letters were admitted as Exhibits A, B and C respectively.

At the request of the Appellant, the 1st Defendant took upon himself the responsibility of overseeing and/or supervising the

erection of the Appellant’s building at No. 9B, Sparta Lane, Benin City on the plot of land the 1st Defendant had sold to him, meticulously keeping a record of monies received from the Appellant and the expenses made in building the house, which was admitted as Exhibit D. There were two other buildings; one bungalow No. 9 and a storey building No. 9A lying adjacent to the one sold to the Appellant, No. 9B, Sparta Lane, Benin City. The Appellant had at no time requested for a Deed of Conveyance for No. 9B Sparta Lane from the 1st Defendant nor did the Appellant ever laid any claim to Nos. 9 and 9A, Sparta Lane, Benin City. On 16/3/1978, the 2nd Respondent wrote a letter to the 3rd Respondent Bank from which it had earlier taken a mortgage loan with the Deed of Conveyance of the land upon which the three buildings; Nos. 9, 9A and 9B, were built, and copied the Appellant. The letter is Exhibit F. This was the genesis of the Appellant’s grouse for which he went to the Court below and rather than claiming for his only property which is plot No. 9B commenced a false claim claiming No. 9 and 9A as well as being his properties. The 3rd Respondent did not

call any witness and therefore, did not lead any evidence at the trial.

ISSUES FOR DETERMINATION
In the Appellants’ brief, two issues were distilled as arising for determination from the eight grounds of appeal, namely:
1. Whether or not the Appellant’s claim is statute barred or vitiated by laches and acquiescence? (Distilled from Grounds 2, 4, 5 and 6)
2. Whether or not the Court below was right in dismissing the Appellant’s claim, and granting the 1st and 2nd Respondents’ counter claim in part? (Distilled from Grounds 1, 3, 7 and 8)

In the 1st and 2nd Respondents’ brief, four issues were distilled as arising for determination in this appeal, namely:
1. Whether, the Court below refused to follow the decision in Ojeme V. Ojeme (2000) 13 NWLR (Pt. 685) 606 and if he defied the principle of stare decisis (Distilled from Grounds 2 and 6)
2. Was the Court below wrong in holding that the Plaintiff/Applicant’s claim was statute-barred in the circumstances of this case and if the said finding was perverse? (Distilled from Grounds 3 and 5)
3. Was the Court below wrong in its

determination that the allegation of fraud was not established? (Distilled from Grounds 4 & 8)
4. Was the Court below wrong in granting the 1st and 2nd Respondents’ Counter-Claim in part? (Distilled from Ground 7)

In the 3rd Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether the decision of the Court of Appeal in the interlocutory appeal in this case resolved the issues in dispute in the substantive case to warrant the Appellant’s complaint that the Court below was wrong in holding that the Appellant’s claim was statute barred and thereby departed from the doctrine of stare decisis?
2. Whether the Court below was wrong in entering judgment against the Appellant to warrant his complaint that the judgment is perverse and contrary to the evidence given before him?

I have taken time to review the pleadings and evidence, both oral and documentary, as led by the parties through their witnesses before the Court below. I have also considered the submissions of counsel for the parties in their respective briefs in the light of the findings in the

judgment of the Court below, and it does appear to me that the proper issues for determination in this appeal are the two issues as distilled in the Appellant’s brief, which best represent the real issues arising for determination in this appeal.

It is my view that a consideration of these two issues would involve the due consideration of the four whooping issues as distilled in the 1st and 2nd Respondents’ brief as well as the two issues as distilled in the 3rd Respondent’s brief. However, I shall consider Appellant’s issue one along together with 1st and 2nd Respondents’ issues one and two as well as 3rd Respondents’ issue one. Appellant’s issue two shall be considered together with 1st and 2nd Respondents’ issues three and four as well as 3rd Respondent’s issue two. But first, there is a notice of preliminary objection raised by the 3rd Respondent challenging the competence of the original Appellant’s brief filed on 20/10/2014 before its amendment.

NOTICE OF PRELIMINARY OBJECTION
The 3rd Respondent had in its brief challenged the competence of the Appellant’s initial brief on

the ground that it was filed out of time without payment of penalty fees for late filing and so the Appellant’s amended brief based on and or emanating from his initial brief is equally incompetent.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the 3rd Respondent had submitted that the appeal was entered on 11/9/2008, while the initial Appellant’s brief was filed on 20/10/2014 which by the provision of Order 17 Rule 2 of the Court of Appeal Rules 2007, previously Order 12 Rule 1 of the Court of Appeal Rules 2011, and now Order 19 Rule 2 of the Court of Appeal Rules 2016 was filed outside the 45 days prescribed by the Rules and contended that the filing of the initial Appellant’s brief without the payment of penalty fees for 2, 222 days at N100. 00 per day after the expiration of the 45 days of for late filing of the Appellant’s brief is a blatant violation of the Rules of the Court and thereby rendered the initial Appellant’s brief incompetent. Counsel relied on Owners of the MV “Arabella” V. Nigerian Agricultural Insurance Corporation (2008) MJSC 145 @ pp. 159 – 160; The Nigerian Navy & Ors.V. Navy Captain D.O. Labinjo

(2012) 6-7 MJSC (Pt. I) I @ p.24.

It was also submitted that the failure of the Appellant to pay the accumulated penalty fees for the late filing of the initial Appellant’s brief rendered same incompetent and contended that in law an incompetent Appellant’s brief is liable to be struck out and urged the Court to strike out the Appellant’s brief for being incompetent.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had submitted that the Preliminary Objection raised by the 3rd Respondent was misconceived and should be dismissed in that the issue raised was merely academic but conceded that although the Appeal was entered on the 11/9/2008, the Record of Appeal was only regularized by the Court on 22/10/2018 on the application of the Appellant vide his Motion on Notice filed on 11/10/2018 and contended that the Appellant’s amended brief filed on 5/11/2018 within the 14 days granted by this Court on 22/10/2018 rendered the Appellant’s amended brief competent. Counsel relied on Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156; IBWA Limited V. Pavex International Co. Nig. Ltd

(2000) 7 NWLR (Pt. 663) 105.

It was also submitted that initial Appellant’s brief filed on 20/10/2014 was based on the Record of Appeal transmitted out of time and before its regularization and contended that in law the initial Appellant’s brief having been duly amended by the leave of Court was no longer material to define the issues in contention in this appeal and urged the Court to hold that the Appellant’s amended brief is competent and to use same in the resolution of issues in this appeal. Counsel relied onAgbabiaka V. Saibu (1998) 10 NWLR (Pt. 571) 534 @ p. 548; The Registered Trustees Of The Airline Operators Of Nigeria V. NAMA (2014) LPELR -22372 (SC) @ p. 65.

It was further submitted that the initial Appellant’s brief filed on 20/10/2014 having been amended on 5/11/2018 pursuant to the Order of this Court made on 22/10/2018, the preliminary objection is a wasteful and futile exercise and contended in the alternative that the issue of non – payment of filing fees was raised belatedly to a non – existing Appellant’s Brief which can be remedied by virtue ofOrder 20 Rule 3(1) and (2) of the Court of Appeal Rules 2016

in the interest of justice and urged the Court to jettison technicality which merely defeats the cause of justice and rather lean on doing substantial justice by dismissing the 3rd Respondent’s preliminary objection and to determine the appeal on the merit. Counsel referred to Order 20 Rule 3(1) and (2) of the Court of Appeal Rules 2016 and relied on Bajehson V. Otiko (2018) 14 NWLR (Pt. 1638)138 @ p. 153.

RESOLUTION OF PRELIMINARY OBJECTION
My lords, the facts of this preliminary objection are not in any dispute at all between the parties. The Appellant filed his original Notice of Appeal on 23/7/2003. The Record of Appeal was transmitted to this Court on 11/9/2008 out of time. The initial Appellant’s brief was filed on 20/10/2014. However, the Record of Appeal was regularized on 22/10/2018. With the leave of this Court granted on 22/10/2018, the Appellant filed his Amended Notice of Appeal on 19/10/2018. Thereafter, the Appellant filed his Amended Appellant’s brief on 5/11/2018. The crux of the preliminary objection was that the initial Appellant’s brief was filed on 20/10/2014, long

outside the 45 days from the date of compilation and transmission of the Record of Appeal to this Court on 11/9/2008 and was therefore, incompetent having been filed out of time and without the payment of the penalty for 2, 222 days at N100. 00 per day and thus ought to be struck out.

I have taken time to consider the submissions of counsel for the respective parties on the Preliminary Objection. I have also taken time to go through the extant rules of this Court and the third schedule governing the filing of brief as well as fees payable as penalty for default. However, going by Order 10 Rule 1 of the Court of Appeal Rules 2016, the use of Notice of Preliminary Objection is limited to issues of incompetence of an appeal as to why it should not be heard on the merit. It is thus not an all comer user to raise all manner of objections by a Respondent. It follows therefore, a Respondent is not at liberty to resort to the use of Notice of Preliminary Objection for purposes other than the purpose for which it was provided for in Order 10 Rule 1 of the Court of Appeal Rules 2016. It is not to be used to merely challenge one or more grounds of appeal. So also,

in my view, it is not apt to use it to challenge the competence of a brief, as sought to be done by the 3rd Respondent in this appeal. I hold that the Notice of Preliminary Objection is both incompetent and amounts merely to an academic exercise as rightly contended by the Appellant’s counsel. See Inspector Isa Sarki V. John Lamela (2016) LPELR – 40338 (CA). See also Odunukwe V. Ofomata (2010) 18 NWLR (P. 1225) 404. See also Lafia Local Government V. Nasarawa State Government (2012) 17 NWLR (Pt. 1328) 124.

The Preliminary objection was also said to have been brought pursuant to Order 17 Rule 2 of the Court of Appeal Rules 2007, stated to be the applicable rule at the time when the appeal was filed and the Record of appeal compiled and transmitted to this Court. However, it is now elementary that in law the applicable rule of procedure is the extant rule at the time the matter is being heard and not the rule of procedure at the time the matter was filed. This is in contradistinction to the applicable substantive law which is the law at the time the matter was filed. Thus, on this score also the Notice of Preliminary Objection founded on either

the 2007 Rules or the 2011 Rules of this Court at the time the appeal was filed or when the Record of Appeal was transmitted to this Court, are no longer the applicable rules at the time the appeal was heard, the Preliminary Objection, is itself incompetent and thus liable to be struck out.
However, assuming but without so holding that the Notice of Preliminary Objection was competent, the time for the Appellant to file the Appellant’s brief would only begin to run from the date of compilation and transmission of a valid Record of Appeal. Thus, the Record of Appeal compiled and transmitted to this Court on 11/9/2008 out of time was and remained incompetent until it was duly regularized by the Order of this Court made on 22/10/2018 pursuant to the Appellant’s application. It follows therefore, the time for the Appellant to file the Appellant’s brief began to run only from 22/10/2018. Thus, the contention that it was filed out of time for 2, 222 days was not well founded and is hereby discountenanced. It was not filed out of time at all! It was rather filed even before the time to file it began to run!!. The Record of Appeal was regularized

only on 22/10/2018 while the Amended Appellant’s brief was filed on 5/11/2018. It follows therefore, the Amended Appellant’s brief filed within 14 days of the regularization of the Record of Appeal was filed within time as ordered by the Court and is thus competent. It suffers no default at all.

So, had the Preliminary Objection been competent and the initial Appellant’s brief is consequently found to be incompetent, the issue of amendment would not have availed the Appellant since in law it is only a valid original process that can be subsequently validly amended. In other words, where an original process is invalid it cannot be amended and the principle of law of an amendment relating back to the date of the original process does not arise. Also, had the original Appellant’s brief been found to be invalid for being filed out of time and never regularised, then it cannot without it being first regularised be amended and be given back its validity. Unless and until it is duly regularised as allowed by the rules, it would remain invalid and so would any subsequent purported amendment to it be invalid too. In law, one cannot put something

on nothing and expect it to stand. See Macfoy V. UAC Ltd. (1962) AC 152 @p. 160.

I now come to the issue of penalty fees. Ordinarily, in law non payment of penalty fees would not ipso facto render a process void. This is because the Court has the inherent powers to order the payment of penalty fees even at the judgment stage. However, having found that the initial Appellant’s brief was even filed before time began to run for it to be filed by the Appellant, there was no default in days for which the Appellant ought to pay any penalty fees as vehemently but erroneously contended by the 3rd Respondent’s counsel. This contention therefore, has no merit and it is hereby discountenanced.

In today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway. Indeed, long gone are the hey days of technicality ridding roughshod over substantial justice in our Courts. Nowadays, substantial justice is king! Technicality, for just its sake devoid of real justice must bow to substantial justice! See Andrew V. INEC (2018) 9 NWLR (Pt. 1625) 507 @ pp. 540 – 541.

In the circumstances therefore,

I hold that the 3rd Respondent’s Notice of Preliminary Objection is both incompetent and or lacking in merit. Consequently, it is hereby struck out for being incompetent and or dismissed for lacking in merit.

ISSUE ONE
Whether or not the Appellant’s claim was statute barred or vitiated by laches and acquiescence?

APPELLANT’S COUNSEL SUBMISSIONS
On issue one learned counsel for the Appellant had submitted that the Court below misconceived the law and overlooked the pleadings and evidence of the Appellant as well as overlooked or departed from the earlier Judgment of this Court between the same parties and contended that the Court below was in error when it contrary to the decision of this Court, which it was bound to follow, proceeded to hold that the Appellant’s suit was both statute barred and or caught by the doctrine of laches and acquiescence and urged the Court to hold that the 1st- 3rd Respondents’ defense predicated on the issues of statute barred, laches and acquiescence were inapplicable to trust property as earlier firmly held by this Court and to allow the appeal and set aside the judgment of the Court

below. Counsel relied on Daniel Selo Ojeme & Ors. V. Joseph Agbon Ojeme & Ors (2000) 13 NWLR (Pt. 685) 606; Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 227 @ p. 379; Ossom V. Ossom (1993) 8 NWLR (Pt. 314) 678 @ p. 681; Abacha V. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 @ p. 317.

It was also submitted that the evidence led by the Appellant, particularly Exhibits A, B, C, D and E fortified the non – application of statute of limitation, laches and acquiescence in that it established that the 1st Respondent was a trustee to the Appellant and who had committed fraud or breach of trust in failing to deliver possession of the plots covered by No. 9, 9A and 9B, Sparta Lane, Benin City and contended in law a perpetrator of fraud is barred or estopped from taking advantage of the period of limitation and urged the Court to so hold and to allow the appeal and set aside the perverse judgment of the Court below. Counsel referred to Section 19(1)(a) and (b) of the Limitation Law, Laws of Bendel State, 1976 applicable to Edo State and relied on Anwadike V. Administrator General of Anambra State (1996) 7 NWLR (Pt. 460) 315 @ pp. 334 – 335;

The Administrator/Executors of the Estate of General Sani Abacha (Deceased) V. Samuel Eke – Spiff (2009) 7 NWLR (Pt. 1139) 97 @ p. 132; Fabunmi V. Obaje (1968) NMLR 243; Omorogbe V. Edo (1971) All NLR 282; Ebba V. Ogodo (1984) 1 SCNLR 372; Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360.

It was further submitted that the defenses of limitation, laches and acquiescence cannot be defenses open to the Appellant’s claim predicated upon fraud or fraudulent breach of trust to which the 1st Respondent was a party or privy to the recovery of trust property nor does it apply to recover trust property retained by the trustee and converted to his own use and contended that the Court below fell into grave error when it failed properly appraise the evidence led by the Appellant and held that these defenses were available to the Respondents and urged the Court to evaluate the evidence and find for the Appellant that the defenses of laches and acquiescence were not available to the Respondents and to allow the appeal, set aside the perverse judgment and enter judgment on the Appellant’s claim against the Respondents. Counsel referred to Section 8(1) of the Trustee Act, 1888 and relied on Adekeye V.Akin – Olugbade

(1987) 3 NWLR (Pt. 60) 214 @ p. 229; Okafor V. BDU Jos Branch (2017) 5 NWLR (Pt. 1559) 388 @ pp. 416 – 417;Afolayan V. Ogunrinde (1990) 1 NWLR (Pt. 127) 369 @ p. 385; Obineche V. Akusobi (2010) 12 NWLR (Pt. 1208) 383 @ p. 416; Ishola V. Union Bank of .Nig Ltd (2005) 6 NWLR (Pt. 922) 422 @ p. 443; Moss V. Kenrow Nig. Ltd (1992) 9 NWLR (Pt. 264) 207 @ p. 226.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 1st and 2nd Respondents had submitted that the Court below was right when it held that the Appellant’s claim was statute-barred at the time he instituted it, and accordingly dismissed it and contended that the Court below did not refused to follow or overlook the earlier decision of this Court on an interlocutory decision between the parties in that the Court below merely followed the decisions, not the obiter, of this Court to hear the Appellant’s suit and came to the correct finding on the evidence that the Appellant’s claim was both statute barred and caught by the doctrine of laches and acquiescence and urged the Court to dismiss the appeal and affirm the judgment of

the Court below. Counsel relied onOmisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 @ pp. 263 – 264.

It was also submitted that there was no averment on trust by the Appellant but was merely introduced in the address of his counsel and contended that it does not lie with the Appellant to merely describe the 1st Respondent as a “trustee” without any pleading or evidence to that effect, or in any other way showing how the Respondent was a trustees to him, whether legally or constructively and urged the Court to hold that in law there is no concept known as purchasing property in trust for another on the face of the lack of any evidence by the Appellant to prove his ownership of the properties in dispute by any of five principal methods or ways of proving ownership of land and to dismiss the appeal for lacking merit. Counsel referred to The Trustee law, Cap. 167 Vol. VI, Laws of defunct Bendel State of Nigeria, 1976 applicable to Edo State and relied on Idudun V. Okumagba (1976) 9 -10 SC227; Dalhatu V. Turaki (2003) 110 LRCN 1572; A G. Ogun State V. Egenti (1986) 3 NWLR (Pt. 28) 265; Emera & Sons Ltd. V. A.G., Plateau State (1990) 4 NWLR

(Pt. 147) 788; Yabatech & Anor. V. Monumental Concepts and Displays (MC & 0) Ltd. (2014) 3 NWLR (Pt. 1395) 616 @ p. 659; Okafor V. NNaife (1987) 9 -10 SCNJ 63; Oduneye V. FRN (2014) 13 NWLR (Pt. 1425) 545 @ p. 578;NEPA V. Edegbero (2002) 18 NWLR (Pt. 798) 79; Asanya V. The State (1991) 3 NWLR (Pt. 180) 422; Atolagbe V. Awuni (1997) 9 NWLR (Pt. 522) 536; Albion Construction Co. Ltd. V. Rao Investments & Properties Ltd. (1992) 1 NWLR (Pt. 219) 583 @ p. 598; Emeka V. Okadigbo (2012) LPELR 933 (SC).

On his issue two, learned counsel for the 1st and 2nd Respondents’ counsel had submitted that in the peculiar circumstances of this case, the Court below was right in holding that the Appellant’s claim was statute barred and contended that the Court below carried out a proper evaluation of the totality of the evidence led and came to the impeachable finding that the Appellant’s claim was both statute barred and defeated by laches and acquiescence from 1974 to 1994 when the suit was filed and urged the Court to hold that in law were the findings and conclusions reached buy a trial Court are correct and unimpeached, they cannot be

disturbed by an appellate Court and to dismiss the appeal for lacking in merit. Counsel referred to Section 6(2) of the Limitation Law of Bendel State, 1976, applicable in Edo State and relied on Udoh Trading Company Ltd. V. Sunday Abere & Anor. (2001) 11 NWLR (Pt. 723) 114 @ p. 133; Makinde &Ors. V. Akinwale& 10 Ors. (2000) 74 LRCN 137 @ p. 150; Ahmed V.The State (1998) 61 LRCN 4410; Agbomeji V. Bakare (1998) 61 LRCN 4741; Osho V. Ape (1998) 60 LRCN 4077 (1998) 8 NWLR (Pt. 562) 492; Barr. Ediru V. FRSC (2016) 4 NWLR (Pt. 1502) 209 @ p. 232; Osuji V. Ekeocha (2009) 16 NWLR (Pt. 1166)81 @ p. 117; Ojo V. Governor of Oyo State (1989) 1 NWLR (Pt. 95) 1 @ p. 10.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 3rd Respondent had submitted that by the decision in the earlier judgment of this Court between the parties the issue of statute barred, and laches and acquiescence was not decided upon but remitted to the Court below for hearing and determination on the evidence of the parties and contended that the Court below was right when having heard and evaluated the evidence of the parties came to the conclusion

that the Appellant’s suit was both statute barred and defeated by laches and acquiescence and urged the Court to hold that in doing so the Court below did not in any way overlooked or refused to follow the earlier decision of this Court and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Ojeme V. Ojeme (2000) 13 NWLR (Pt. 685) 606; BPI Group Corporation V. Bureau of Public Enterprises (2012) 6 MISC (Pt. 11)124 @ p. 147; CPC V. INEC (2011)12 MJSC 105.

It was also submitted that in the earlier decision of this Court the decision of the Court below dismissing the Respondents’ objection on the ground that it was raised premature was affirmed and contended that the decision did not decide any of the issues in the substantive case but remitted the case to the Court below to hear and determined it on the evidence of the parties, which the Court below did and came to the correct finding that on the evidence led the Appellant’s suit was statute barred and caught by the doctrine of laches and acquiescence and dismissing the same and urged the Court to hold that the Appellant’s claim was rightly dismissed

by the Court below on this ground and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied onOmotayo V. Ayodele (1993 8 NWLR (Pt. 314) 717; Calabar Central Cooperative Thrift & Credit Society Ltd. & Ors. V. Bassey Ebong Ekpo (2008) 11 MJSC 104 @ p. 130; Apena & Anor. V. Oba Fatai Aileru & Anor. (2014) 6-7 (Pt. 11) MJSC 184 @ pp. 206-207; Associated Discount House Ltd. V. Amalgamated Trustees Ltd. (2007) 10 MJSC 49.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In what the learned counsel for the Appellant termed and filed as reply brief, he not only reiterated virtually all the arguments in the main brief but also proceeded to reargue the entire appeal, quite contrary to the limited scope and function of a reply brief as set out in Order 19 Rule 5 of the Court of Appeal Rules 2016. However, I shall in the interest of justice recap some of these submissions that are response to issues raised in the Respondent’s brief, having taken time to consider the entire reply submissions.

It was submitted that the question whether or not the Appellant’s claim is statute barred is a jurisdictional issue

which is only determinable from the case presented by the Appellant in the Writ of Summons and Amended Statement of Claim at the material time and contended that by the earlier decision of this Court it was held that from the Amended Statement of Claim of the Appellant, the subject-matter of the suit is a trust property, and that the 1st Respondent is a trustee to the Appellant and contended that in the absence of any appeal against this finding the fact is taken as duly established between the parties and urged the Court to hold that the fact that the Appellant’s claim is not statute barred had been decided in finality between the parties and to allow the appeal and set aside the judgment of the Court below. Counsel relied on Emeka V. Okoroafor (2017) 11 NWLR (Pt. 1577) 410 @ p. 478; Olagunju V. PHCN Plc. (2011) 10 NWLR (Pt. 1254) 113 @ p. 126; Elabanjo V. Dawodu (2006) 15 NWLR (Pt. 1001) 76 @ pp. 147 -148; APC V. PDP (2015) 15 NWLR (Pt. 1481) 1 @ pp. 102 –103.

It was also submitted that the decision of the Court below was perverse in that it overlooked and shut its eyes to several proved facts including Exhibit e that established the

fraudulent activities of the 1st Respondent and the legal effects of Exhibits A, B, C and D which made this Court held the 1st Respondent as trustee to the Appellant and contended that the finding by the Court below that the limitation law applies to the case of the Appellant on the face of the fraud of the 1st Respondent as a trustee to the Appellant was perverse and occasioned a miscarriage of justice to the Appellant and urged the Court to allow the appeal and set aside the judgment of the Court below. Counsel relied on Udengwu V. Uzuegbu (2003) 13 NWLR (Pt. 836)136; Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2)360; Barrister Ediru V. FRSC (2016) 4 NWLR (Pt. 1502) 209.

RESOLUTION OF ISSUE ONE
My lords, issue one deals with a very knotty question as to whether the Court below complied with and deferred to the earlier judgment of this Court on an interlocutory appeal involving the parties as vehemently contended by the 1st and 2nd Respondents or ignored and refused to abide by the said judgment of this Court as equally contended vehemently by the Appellant? The decision of this Court is in Ojeme V. Ojeme (2000) 13 NWLR (Pt. 685) 606.
Now, a long while

ago an interlocutory appeal had come before this Court from a decision of the Court below declining to determine on the merit the issues of statute barred and laches and acquiescence raised by the Respondents against the competence of the Appellant’s suit. The appeal was heard and the ruling of C. O. Idahosa J., was affirmed and the matter was remitted to the Court below for hearing and determination. I have taken time to read through law report of the earlier judgment of this Court on the interlocutory appeal of the 1st and 2nd Respondent against the ruling of the Court below. Interestingly, all the parties have repeatedly reproduced the gist of the said judgment in their respective briefs. So, what did this Court decide in Ojeme V. Ojeme (2000) 13 NWLR (Pt. 685) 606?
A calm reading of the earlier judgment of this Court reveals the following findings and decisions, namely:
a. By the pleadings of the Appellant herein, who was Respondent therein, the original 1st Defendant now deceased but substituted by the 1st Respondent was regarded as trustee to the Appellant.
b. In law, the limitation law does not operate against claim for recovery of

trust property and account
c. The Appellant herein suit was founded on the concept of trust by the 1st Respondent and was therefore not statute barred since the Limitation law does not apply to the claim.
d. In law, the defense of laches and acquiescence pleaded by the 1st and 2nd Respondents must be proved by evidence and since evidence was yet to be led, it was premature for the Court below to consider it at a time when evidence was yet to be taken as rightly held by the Court below per Idahosa J.
e. The appeal was therefore, dismissed for lacking in merit.
Based on the above decision of this Court, the matter was remitted to the Court below for trial. At the hearing, the Appellant testified for himself and tendered some documents admitted as Exhibits A, B, C, D and E respectively and was cross examined. In defense, the 1st original Respondent testified and called one witness on behalf of the 1st and 2nd Respondents and were cross examined. The 3rd Respondent did not call any witness. At the close of their respective cases, the parties addressed the Court and on 18/6/2003, the Court below per A. N. Ehigiamusoe J., delivered its judgment

dismissing the Appellant’s suit for being statute barred as well as caught by the doctrine of laches and acquiescence and for lacking in merit, while granting in part the counter claim of the 1st& 2nd Respondents against the Appellant and awarding general damages of N50, 000. 00 against the Appellant for trespass to land.
A calm reading of the judgment of the Court below reveals the following main findings and decisions in relation to issue one, namely:
a. The Appellant’s claim was statute barred in that the cause of action by his own pleadings arose in 1974, that is 20 years before the suit was filed in 1994
b. The Appellant’s claim was caught by the doctrine of laches and acquiescence as pleaded and proved by the 1st and 2nd Respondents
c. The averments on trust remained bare and unproved as they were not supported by any evidence from the Appellant as required by law
In arriving at its finding and when confronted with the decisions of this Court in the earlier judgment in the interlocutory appeal between the Appellants and the 1st and 2nd Respondents, the Court below was of the view that the reliance on the

earlier judgment of this Court by the Appellant was ‘baseless. ‘I find the use of the word ‘baseless’ in reference to the judgment of this Court are not only daring but also very unfortunate. I should think a better and more permissible word could and should have been used by the Court below to more aptly describe or show what it must have meant. Perhaps, saying that the judgment of the Court below does not avail the Appellant in the way and manner it was intended to and was being relied upon as having decided that the Appellant’s claim was neither statute barred nor defeated by the doctrine of laches and acquiescence as raised by the Respondents.
Having noted as above, let me now consider whether the decision by the Court below that the Appellant’s suit was statute barred and caught by the doctrine of laches and acquiescence was either an affront on the earlier judgment of this Court between the parties and thus perverse and liable to be set aside or was based on the evidence led before it by the parties and thus correct and cannot be disturbed by this Court but should be affirmed. I have already stated that the issue

whether the Appellant’s suit was statute barred or not was decided upon by this Court in its earlier judgment between the parties. This Court had upon a calm review of the pleadings of the Appellant, which in law is the only document to be scrutinized in the determination whether the claim therein is statute barred or not, came to the finding that the 1st Respondent is regarded as a trustee to the Appellant, and since in law limitation law does not apply to claim for recovery of trust property, the Appellant’s suit was not statute barred.
Now, whether rightly or wrongly, that is the decision of this Court on the issue of limitation law on the claim of the Appellant as between the parties. There seems not to be any appeal against this finding and same has therefore, not been set aside. In law findings of a Court of competent jurisdiction remains valid, subsisting and binding on both the parties and the Court until set aside by a higher Court of competent jurisdiction. See Babatunde and Anor V. Olatunji and Anor (2000) 2 NWLR (Pt. 646) 557; Ezeokafor V. Ezeilo (1999) 9 NWLR (Pt. 619)369; (1999) 6 SC (Pt. 11) 1; R. Benkay Nig. Ltd. V. Cadbury Nig Plc.

(2006) 6 NWLR (Pt. 976) 338 @ p. 381.
My lords, the finding by the Court below that the Appellant’s suit was statute barred was wrong being a decision which seems to be reopening an issue on which this Court had already made a definite pronouncement to the contrary that the Appellant’s suit is not and cannot be statute barred in the light of the Appellant’s pleadings that the 1st Respondent was in a position of a trustee, even if implied trustee, to the Appellant. Thus, that finding in so far as it had not been set aside by the Supreme Court, and indeed not even appealed against, remains valid, subsisting and binding on both the parties and the Court below and can neither be reopened nor set aside by the Court below as it purports to do by its finding to the contrary. This is more so when the decision that the issue of laches and acquiescence be subject to evidence of the parties based on their pleadings before the Court below has nothing in law to do with the issue of limitation law. In the determination of whether a suit is statute barred or not evidence of the parties is not an essential requirement as same can and is most

often determined on the writ of summons and or pleadings of the Claimant only. There is no need therefore, either to resort to the pleadings of the Defendant or his evidence to determine if a claim is statute barred or not. In Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1, the Supreme Court considered and simplified the duty of the Court when faced with the resolution of the issue whether or not a suit or claim or action is statute barred and had succinctly pronounced with finality inter alia thus:
“How does one determine the period of limitation? The answer is simply by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred”
See also Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ p. 416; Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA);P. N. Udoh Trading Co. Ltd. V. Abere (2001)

FWLR (Pt. 57) 900; Williams V. Williams (2008) All FWLR (Pt. 433) 1245; Eboigbe V. NNPC (1994) 5 NWLR (Pt. 346) 649.
I find therefore, on the issue of limitation law as to whether the Appellant’s claim was statute barred or not, the decision of this Court remains binding and the Court below lacks the vires to make any further enquiry into it and reaching any different or even same decision on the matter. It was certainly bound by the decision of this Court. Thus, without much ado, I hold firmly that this Court having held that the Appellant’s suit was not statue barred, the Court below was in grave error when it proceeded on a voygae of its own, unsupported by any law and against the hierarchy of judicial decisions, to reach a directly contrary and perverse decision on the same issue akin to overruling and setting aside the definite findings of this Court on an issue between the same parties before it in our earlier judgement. No! It cannot do that and will not be allowed to do so by this Court. See CSS Book Shop Ltd. V. The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310. See also Obajimi V. Adeobi (2008) 3 NWLR (Pt.

1075) 1 @ p. 19.

Let me now consider the issue of laches and acquiescence as pleaded by the 1st and 2nd Respondents to see whether it was also decided upon by this Court in the earlier judgment on the interlocutory appeal between the parties and if no, whether the Court below was right or wrong when it held that on the evidence led by the parties, particularly the 1st and 2nd Respondents, who bear the burden of proof, the Appellant’s suit was caught by the doctrine of laches and acquiescence and consequently dismissing the Appellant’s suit?

In their Joint Statement of Defense, the 1st and 2nd Defendants had averred inter alia as follows:
7. The 1st Defendant denials paragraph 6 of the Statement of Claim, and shall on trial contend in the main that the action is statute barred, and/or that the aquitable doctrine of laches and acquiescence has radically alter the status of the Plaintiff vis-a-vis the said parcel allegedly bought for the sun of £50 (fifty pounds).
19. In answer to paragraph 19, the Plaintiff had by conduct acknowledged the 1st Defendant’s ownership of the two buildings occupied by him, to the exclusion of

Plaintiff’s undisputed single storey building. The issue of ownership of the two buildings of the 1st Defendant has never been in dispute. The averment in paragraph 19, it shall be contended are false and are designed to give life to a stale claim. See pages 11 – 15 of the Record of Appeal.

There is evidence from the DW1 and DW2, and even from the Appellant as PW1, that the 1st Respondent has been in possession of the properties at No 9 and 9A since 1974 which he claimed was sold to him and developed for him by the 1st Respondent. The 1st and 2nd Respondent pleaded and led evidence to prove that the only land sold to and developed for the Appellant was the land measuring 100ft by 100ft on which the property at No 9B was developed. They also maintained that they have been in possession of the other properties and exercised several acts of ownership without any let or hindrance from the Appellant who knew they had been in possession. There is also evidence that it was only in 1994 that the Appellant took steps by way of firstly writing letters to the tenants in these two properties claiming ownership and subsequently the suit he filed against the 1st and

2nd Respondents seeking a declaration of title to these properties. It was on the state of the above pleadings and evidence relating to the plea of laches and acquiescence by the 1st and 2nd Respondents against the claims of the Appellant that the Court below had in its judgment held inter alia thus:
“…It is quite absurd to me to see that a lawyer of the Plaintiff’s Standing can wait for a period of about twenty years to bring this action. Even if he was entitled, he has acquiesced on his rights, the statute will not only bar any remedy but will extinguish the right to claim in question…” See pages 93 – 108 of the Record of Appeal.

Now, in law, to succeed in a plea of laches and acquiescence there must be evidence of adverse long possession by the party relying on the plea of laches and acquiescence so much so that the other party would be deemed to have actual or constructive notice of the adverse long possession. Thus, the burden of proof of long adverse possession and the resultant consequences of laches and acquiescence on the right of the other party is on the party so relying on it, which in most cases is the Defendant.

There is therefore, no duty on the Claimant to prove that there has been no acquiescence. SeeMaji V. Shafi (1965) NMLR 33. See also Alade V. Aborishade (1960) SCNLR 398, (1960) 5 FSC 167.
The party relying on the plea of laches and acquiescence must in order to succeed not only plead but also lead credible evidence to prove the following essential elements of the plea of laches and acquiescence namely: A. That the party relying on the plea was in fact mistaken as to his own rights over the land; B. That the party relying on the plea had in reliance on his mistake expended money on the land; C. That the other party knew of the existence of his own right which is inconsistent with the right over the land claimed by the party relying on the plea; D. That the other party knew of the mistaken belief by the party relying on the plea of his right; E. That the other party encouraged the party relying on the plea expenditure of money. SeeMoss V. Kenrow (Nig.) Ltd (1992) 9 NWLR (Pt. 264) 207 @ p. 226.
My lords, the gist of the plea of laches and acquiescence is knowledge, actual or constructive, of the other party of the adverse long possessions of the land in

dispute by the party relying on the plea. On the proved evidence, it seems clear to me that the Appellant had actual knowledge of the adverse possession of the properties at No. 9 and 9A Sparta Lane, New Benin, Benin City for over 20 years before taking steps to challenge the 1st and 2nd Respondents over the title to these properties. I think and I so find that the Appellant had by his conduct over the long period of 20 years within which he knew or ought to have known that the 1st and 2nd Respondents have been in adverse possession of properties he claimed to belong to him, had indeed acquiescence on his right and making the 1st and 2nd Respondents to believe that he has no right over these properties and allowing them to use the properties as their own without any let or hindrance from the Appellant.
In my finding therefore, the 1st and 2nd Respondents not only pleaded and relied on laches and acquiescence but had also proceeded to prove it by credible evidence against the claims of title to these two properties at No 9 and 9A Sparta Lane Benin City by the Appellant as required of them by law. Consequently, I hold that the Court below was right when

it held that the claims of the Appellant to the title to these two properties at No 9 and 9A Sparta Lane, Benin City was caught by the doctrine of laches and acquiescence as relied upon by the 1st and 2nd Respondents, and thereby extinguishing whatever title or right of the Appellant to these two properties at No 9 and 9A Sparta Lane Benin City in favor of the 1st and 2nd Respondents.

This Court being an appellate Court does not make it a habit interfering with correct findings and conclusions of the Court below but rather we do affirm such correct findings and conclusions. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.

In the circumstances therefore, the first arm of issue one dealing with the issue of statute barred is hereby resolved in favor of the Appellant against the Respondents, while the second arm of issue one dealing with the issue of laches and acquiescence is hereby resolved against the Appellant in favor of the 1st and 2nd Respondents.

ISSUES TWO
Whether or not the Court below was right in dismissing the

Appellant’s claim, and granting the 1st and 2nd Respondents’ counter claim in part?

APPELLANT’S COUNSEL SUBMISSIONS
On issue two learned counsel for the Appellant had submitted that the burden of proof in a claim for declaration of title to land lies on the Claimant who generally must rely on the strength of his case and not on the weakness of the Defendant’s case and contended that the onus of proof on the Claimant is to establish his case on the balance of probabilities and that once he has adduced sufficient prima facie evidence to entitle him to the relief sought, the onus shifts to the Defendant, notwithstanding the fact that he must succeed on the strength of his case and urged the Court to hold that the Appellant discharged the burden of proof to the declaration of title sought on preponderance of evidence and to allow the appeal and set aside the judgment of the Court below. Counsel referred to Section 133(1) and (2) of the Evidence Act 2011 and relied on Onwugbufor V. Okoye (1996) 1 NWLR (Pt. 424) 252; Kodilinye V. Odu 2 WACA 336; Udegbe V. Nwokafor (1963) 1 SCNLR 184; Woluchem V. Gudi (1981) 5 SC 291; Alli V. Alesinloye

(2000) 6 NWLR (Pt. 660) 177 Piaro V. Tenalo (1976) 12 SC 31.

It was also submitted that the Appellant pleaded and proved his claims against the Respondents in that there was credible evidence that he gave a total of 200 pounds to the 1st Respondent for the purchase of two parcels of land measuring 100ft by 100ft and 50ft by 100ft respectively as in purchase receipts Exhibits A, B, C and D, and on which land the 1st Respondent constructed three buildings for the Appellant who financed the buildings and that he left for studies in 1964 and upon his return in 1975, the 1st Respondent refused to formally convey No.9, 9A and 9B, Sparta Lane, Benin City to him and in 1978, after a long struggle and family intervention, the 1st Respondent only prepared a Deed of Release for No.9 Sparta Lane, Benin City, one of the Appellant’s properties which was mortgaged to the First Bank Nigeria Plc without the consent and knowledge of the Appellant and urged the Court to hold that the findings of the Court below were perverse and to allow the appeal and grant the Appellant’s claim against the Respondents. Counsel referred to Section 151 of the Evidence Act 2011 and

relied on Osagie V. Oyeyinka (1987) 3 NWLR (Pt. 59) 144 ? p. 157; Ekpechi V. Owhonda (1998) 3 NWLR (Pt. 543) 618 @ p. 642.

It was further submitted that in law purchase receipts such as Exhibits A, B, C and D is one of the five methods of proving title to land in that the category of documentary evidence in proof of title to land are never closed and contended that the purchase receipts and evidence of expenditure on the buildings fall within the permissible methods of proof of title to land by documentary evidence and urged the Court to hold that the Court below was wrong when it held that the Appellant did not prove his title to the three properties as required by law and to allow the appeal, set aside the perverse findings of the Court below and grant the claims of the Appellant against the Respondents. Counsel relied on Idundun V. Okumagba (1976) 1 NMLR 200; Makanjuola V. Balogun (1989) 3 NWLR (Pt. 108) 192; Olukoya V. Ashiru (2006) 11 NWLR (Pt. 990) 1; Ojibah V. Ojibah (1991) 5 NWLR (Pt. 191) 296 @ p. 311.

It was also further submitted that the Respondents not only admitted due execution of Exhibits A, B, C and D by the 1st Respondent but their

defense were not only confusing in their evidence but was also at variance with their pleadings and contended that in law a party will not be allowed after pleading a set of material facts to turn round and base his case on a totally different set of facts without an amendment of the pleading and urged the Court to hold that all the evidence given by the Respondents at variance with the averments in their pleadings goes to no issue and the Court below ought to have acted on the proved documents particularly Exhibit D and to allow the appeal. Counsel referred to Sections 83 (1) and 123 of the Evidence Act 2011 and relied on Emegokwue V. Okadigbo (1973) 4 SC 113; Ehimare V. Emhonyon (1985) 1 NWLR (Pt. 2) 117; Ajide V. Kelani (1985) 3 NWLR (Pt. 120 248 @ p. 269; Din V. African News Papers Ltd (1990) 3 NWLR (Pt. 139) 392 @ p. 406; Henshaw V. Effiong (2009) 11 NWLR (Pt. 1151) 65; Achimugu V. Minister, FCT (1998) 11 NWLR (Pt. 574) 467 @ p. 477. Ignobis Hotels Ltd. V. Bentec Elect Ltd (2015) 1 NWLR (Pt. 1441) 504 @ pp. 533 -534; Saidu V. Abubakar (2008) 12 NWLR (Pt. 1110) 201 @ p. 301; Ekpe V. Oke (2001) 10 NWLR (Pt. 721) 341; Akinola V. Unilorin (2004) 11 NWLR (Pt.

616) 616 @ p. 650.

It was also submitted that since Exhibits A, B, C, D and E were not rebutted by the Respondents, the Court below misdirected itself by not acting on them and contended that in law once it is found that there has been a misapprehension as to the onus of proof and a misdirection casting such onus on the wrong party, there is therefore a likelihood of miscarriage of justice as such misdirection can also affect the credibility of witnesses and that the Court below failed to properly evaluate the totality of evidence led by the parties and urged the Court to hold that since in law fraud vitiates everything, in the absence of proof that the 1st and 2nd Respondents are the actual owners of No.9, 9A and 9B, Sparta Lane, the doctrine of Nemo dat quod non habet applies and the entire Mortgage transaction is null and void and to allow the appeal and grant the Appellant’s claims against all the Respondents. Counsel relied on Onobruchere V. Esegine (1986) 1 NWLR (Pt. 19) 799; Onyekaonwu V. Ekwubiri (1966) 1 All NLR 32; Sanusi V. Ameyogun (1992) 4 NWLR (Pt. 237) 527 @ p. 556; Ugo V. Obiekwe (1989) 1 NWLR (Pt. 99) 566 @ p. 592.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue three, learned counsel for the 1st and 2nd Respondents had submitted that the Appellant had vaguely alleged fraud in paragraphs 16 and 17 of his amended statement of claim but contended that in law an allegation of fraud, being a crime, must be proved beyond reasonable doubt and urged the Court to hold that since pleadings do not constitute evidence, the Appellant failed woefully to lead any evidence in proof of the alleged fraud other than that on 16/3/1978, the Appellant received a letter Exhibit E sent to the 3rd Respondent and copied to him that 1st Respondent had used the properties at 9, 9A, and 9B, Sparta Lane, Benin City as collateral for mortgage loans to 3rd Respondent, which evidence is clearly insufficient to prove fraud as required by law and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Section 135(1) of the Evidence Act 2011 and relied on Amusa Adio & Anor. V. The State (1986) 4 SC 194 @ pp. 219 – 220.

It was also submitted that Exhibit E rather than proving fraud as erroneously submitted by the Appellant’s counsel showed utmost good

faith and accountability by the 1st Respondent requesting the 3rd Respondent to excise the Appellant’s property from the mortgage and copied the Appellant and contended that there cannot be anything clandestine in Exhibit E copied to the Appellant by the author and when the Appellant knew since 1978 of the mortgage transaction on the properties at 9, 9A and 9B Spata Lane but did not take any action until 1994 and urged the Court to hold that on the totality of the evidence led, the Court below was right when it held that the allegation of fraud was not proved by the Appellant and that the radical title to the properties in dispute lies with the 1st Respondent who was entitled to use the title document as he deemed fit within the boundaries of the law, including using it as collateral for mortgage loans and to dismiss the appeal for lacking in merit. Counsel relied onBello V. National Bank of Nigeria Ltd. (1992) 6 NWLR (Pt. 246) 220.

On his issue four, learned counsel for the 1st and 2nd Respondents had submitted that both on the pleadings and evidence led, the 1st and 2nd Respondents proved that they are the owners in possession of the two

properties at No 9 and 9A Sparta Lane, Benin City and that it was only in 1994 when the Appellant wrote letters to their tenants claiming that he is their Landlord and contended that by Exhibit H it was proved that the Appellant intruded into one of the properties of the 1st Respondent to serve the tenants therein letters claiming to be the owner of the property and urged the Court to hold that the Court below was right when it held that the Appellant’s action in serving Exhibit H on the tenants of the 1st Respondent amounted to trespass and to affirm this correct finding of fact and to dismiss the appeal for lacking in merit. Counsel relied on Aromire V. Awoyemi (1972) 1 All NLRC (Pt. 4) 101 @ p. 112; Kareem V. Ogunde (1972) 1 SC 182; Amakor V. Obiefuna (1974) 1 All NLR (Pt. 1)119; Aseimo V. Abraham (1994) 8 NWLR (Pt. 361) 191 @ p. 220; Danjuma V. SCC (Nig.) Ltd. (2017) 6 NWLR (Pt. 1561) 156 @ pp. 203 – 204.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
On his issue two, learned counsel for the 3rd Respondent adopted all his earlier submissions on issue one and in addition had submitted that the Court below was right when it held that the

Appellant did not give any evidence on trust property and also did not prove title to the properties in dispute and contended that in law averments in a pleading not supported by evidence would go to no issue and urged the Court to hold that the Appellant having failed to prove his claims against the Respondent as required by law the only option left for the Court below was to dismiss the Appellant’s suit as it rightly did and to affirm the correct findings which have not been shown in any way to be perverse and to dismiss the appeal for lacking in merit. Counsel relied on Emegokwue V. Okadigbo (1973) NMLR 192 @ p. 195; Obmiami Brick & Stone (Nig.) Ltd. V. ACB Ltd. (1992) 3 NWLR (Pt. 229) 260 @ p. 312.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In what the learned counsel for the Appellants termed and filed as ‘reply brief’, which is certainly not the place to repeat the facts of the case, he not only reiterated virtually all the argument in the main brief but also proceeded to set out even in greater details the facts of the case and to reargue the entire appeal, quite contrary to the limited scope and function of a reply

brief as set out in Order 19 Rule 5 of the Court of Appeal Rules 2016. However, I shall in the interest of justice recap some of these submissions that are response to issues raised in the Respondent’s brief, having taken time to consider the entire reply submissions.

It was submitted that fraud was generally pleaded in paragraphs 15. 16 17, 18, 21 of the Appellant’s Amended Statement of Claim and contended that fraud was not vaguely pleaded but obvious from the pleadings and evidence led by the Appellant since in law in pleading fraud it is not necessary to use the word ‘fraud’ and it is enough, if the substance of the allegation is pleaded and urged the Court to hold that the Appellant not only pleaded fraud but also led credible evidence in support thereof and proved fraud against the 1st Respondent contrary to the perverse findings of the Court below and to allow the appeal and set aside the judgment of the Court below and grant the Appellant’s claims against the Respondents. Counsel relied on WAB Ltd V. Savannah Ventures Ltd (2002) 10 NWLR (Pt. 775) 401 @ p. 429; Olufunmise V. Falana (1990) 3 NWLR (Pt. 136) 1 @ p. 16.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It was also submitted that in law the mere description of the conduct or motive of the 1st Respondent by the use of ‘fraud’ does not ipso facto convert the basis of the claim against the 1st and 2nd Respondents into a crime which must be proved beyond reasonable doubt and contended that the commission of crime was not directly in issue between the parties and urged the Court to hold that the Appellant proved his claims against the Respondents without the need to prove same beyond reasonable doubt as was erroneously submitted by the 1st and 2nd Respondents’ counsel. Counsel relied on Amusa Adio & Anor V. The State (1986) 4 SC 194; Mufutau Bakare V. The State (1987) 3 SC 1.

It was further submitted that by Exhibits A, B, C, D and E, which were not impugned, the Appellant proved that he is entitled to the title to the properties at No. 9, 9A and 9B, Sparta Lane, New Benin, Benin City and contended that in law where two parties are claiming possession to the same land, the person with a better title is said to be in possession of the land and urged the Court to hold that in law however long an adverse possession might be, it would never

confer title on a possessor against a true owner of land, like the Appellant, and to allow the appeal and set aside the judgment of the Court below and grant the Appellant’s claims against the Respondents. Counsel relied on Atunrase & Anor V. Sunmola & Anor (1985) 1 NWLR (Part 1) 105 @ p. 112; Amakor V. Obiefuna (1974) 3 SC 67.

RESOLUTION OF ISSUE TWO
My lords, issue two deals with the allegation by the Appellant that the Court below had not properly evaluated the evidence led by the parties and had misdirected itself in arriving at perverse findings of fact, which ought to be set aside and proper re – evaluation carried out by this Court to arrive at appropriate findings of facts as would be borne out by the pleadings and evidence led by the parties in the interest of justice.
In every appeal where the evaluation carried out by the trial Court is challenged, it is simply a call on the appellate Court to consider first whether or not the trial Court had properly evaluated the evidence led before it and if finds that the trial Court had not, then to proceed to re – evaluate the evidence in the printed record to determine if the trial

Court had made correct findings borne out by the evidence as led by the parties. It is the law that it is only where the trial Court had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re – evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the evidence led and the dictates of justice to the parties. Thus, unless and until an appellate Court arrives at such a conclusion the need for re – evaluation of evidence does not arise since an appellate Court has no business interfering with correct findings of a trial Court. See Williams V. Tinubu (2014) All FWLR (Pt. 755) 200. See also Amuneke V. The State (1992) NWLR (Pt. 217) 347; Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709; Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471; Woluchem V. Gudi (1981) 5 SC. 291; Enang V. Adu (1981) 11-12 SC. 25; Abisi & Ors. V. Ekwealor & Anor (1993) 6 NWLR (Pt. 302) 643; Igago V. The State (1999) 12 SCNJ 140 @ p. 160; Amala V. State (2004) 12 NWLR (Pt.

888) 520.

Now, what are the averments of the parties and the pieces of evidence led by them before the Court below?

In the Amended Statement of Claim, the Appellant had averred, in relation to issue two, inter alia thus:
5. Plaintiff who is a cousin of the 1st Defendant bought in 1962 a piece or parcel of land measuring 100 feet long by 100 feet wide from the 1st Defendant which land is now built up and has two storey buildings numbered as 9 and 9A, sparta Lane Benin City. The consideration for the purchase of the said plot was £150.
7. Plaintiff was immediately put into possession of the two piece or parcels of land forming one plot of land by the 1st Defendant.
10. The three building a that Plaintiff developed on the land are one storey building which is now numbered as 9 Sparta Lane formerly numbered 7 Sparta Lane and occupied by the Plaintiff since his return from Overseas, the second storey building was let to the 2nd Defendant and the 1st Defendant made part of the building as part of his office for St. Jude’s activities but the 1st Defendant later left his building across the road, where his entire land situate and moved

on to the top storey with his family.
14. In the letters pleaded in paragraph 8 above, the 1st Defendant is estopped from denying the title of the Plaintiff to the land. In 1974 long after Plaintiff returned from overseas it came to his knowledge that 1st Defendant has used his land for a mortgage loan of N20,000 with the 3rd Defendant. When challenged, 1st Defendant at first became obdurate but on intervention of the family, he pleaded for time to release the Deed from the 3rd Defendant which he only did five years after and that was in respect of No. 7 Sparta Lane. The Plaintiff shall rely on the said Deed at the trial.
18. These series of act of the 1st defendant were the first indication of plaintiff’s distrust of him and when Plaintiff? started to demand the deed of Conveyance of the entire plot of land on which the three building stand he started giving one excuse after another, Plaintiff’s suspicious became rife. All efforts by some members of the family failed. See pages 27 – 38 of the Record of Appeal.

On their part, the 1st and 2nd Respondents had in their Joint Statement of Defense averred, in relation to issue two, inter alia thus:

The 1st Defendant further avers that he took direct responsibility in building the only house of the Plaintiff in Benin-City and rendered accounts and exchanged correspondences with the Plaintiff but denies knowledge of any letter dated 21st February, 1962, 28th February, 1962 and 17th March, 1962.
16. In answer to paragraphs 15 and 16,, of the Statement of Claim, the 1st Defendant denies any fraud in that the document of title in respect of the parcel of land. After the complaint of Plaintiff, the land housing the Plaintiff’s building where he lives was surveyed and severed, while the 3rd Defendant is legitimately entitled to hold the remainder documents of 1st Defendant’s buildings as Mortgage.
19. In answer to paragraph 19, the Plaintiff had by conduct acknowledged the 1st Defendant’s ownership of the two buildings occupied by him, to the exclusion of Plaintiff’s undisputed single storey building. The issue of ownership of the two buildings of the 1st Defendant has never been in dispute. The averment in paragraph 19, it shall be contended are false and are designed to give life to a stale claim. See pages 11 – 15 of the Record of Appeal.

The 1st and 2nd Respondents also filed a Statement of Counter Claim against the Appellant in which it was averred inter alia thus:
8. The 1st and 2nd Defendants are the present occupants of the houses known as No. 7 and 7A, presently, building in No. 7 has tenants paying rents, since 1982, to the 1st Defendant.
9. The Plaintiff had never challenged the authority or right of the 1st Defendant until the 9th of May, 1994 when he caused a letter to be written to the tenants put in possession by 1st Defendant. The letter is pleaded. The letter was not endorsed to the 1st Defendant by the Plaintiff, but the tenant drew the fact to the attention of the 1st Defendant.
15. The 1st Defendant shall found on his acts of possession over a period over twenty years without let or impeachment from the Plaintiff. See pages 16 – 18 of the Record of Appeal.

In proof of his claim and his defense to the 1st and 2nd Respondents’ counter claim, the Appellant testified on behalf of himself in line with his pleadings. He also tendered several documents admitted in evidence as Exhibits A, B, C, D, and E respectively, While Exhibits A, B and

C are letters from the 1st Respondent to the Appellant in relation to the transactions between them over the request of the Appellant for the purchase of land from the 1st Respondent., Exhibit D is an account rendered by the 1st Respondent to the Appellant, Exhibit E is a Deed of Release to the Appellant of the property at No 9B Sparta Lane, New Benin Benin City from the mortgage transaction between the 1st and 2nd Respondents and the 3rd Respondent. See pages 50 – 62 of the Record of Appeal.

In their defense to the claims of the Appellant and in proof of their counter claim, the 1st and 2nd Respondents called two witnesses who testified in line with their pleadings and admitted all the documents tendered in evidence as Exhibits A, B, C, D and E, as documents executed by the original 1st Respondent. It was on the strength of the above pieces of evidence, both oral and documentary, that the Court below had in its judgment delivered on 18/6/2003 per A. N. Ehigiamusoe J., dismissed the Appellant’s Suit for lacking in merit, while granting in part the counter claim of the 1st & 2nd Respondents against the Appellant for general damages for trespass,

and stating inter alia as follows:
“…the Plaintiff is claiming to be the owner of the plot measuring 150 by 100 ft., containing three buildings at Nos. 9, 9a and 9b Sparta Lane, Benin City and to be entitled to do this, he must show his root of title or the origin of his title…. Now in seeking a declaration such as the Plaintiff is seeking, what has be got to show for the claim to the land and the properties at Nos. 9, 9a, 9b Sparta Lane?….What did the Plaintiff produce in Court as evidence of the sale of property to him? They are Exhibits A, B, C and D. Exhibit’s A, B, C are letters written by the 1st Defendant to the Plaintiff. Exhibit ‘D’ is a statement of expenditure of money spent. It did not even indicate for which property and even if it did, it is still not one of the methods of proving title or ownership to land. Exhibit ‘E’ is still a letter which the parties agree was the excise of a portion of the land contained in plot measuring 150ft. by 100ft. to the Plaintiff….On fraud which is criminal…..no evidence was led at all….suffice is to say that the Plaintiff has not proved ownership of the properties in issue…From

the evidence before this Court, the Plaintiff has failed to show by iota of evidence of ownership, the evidence he put forward is extremely worthless….He was not even in physical possession; he is even devoid of any right to possession. Based on the evidence before the Court, it is right to say that the claim for damages succeeds as the incessant unjustifiable intrusion into the 1st Defendant’s properties has been proved…” See pages 93 – 108 of the Record of Appeal.

I have taken time to calmly review the averments in the pleadings of the parties. I have also taken time to dispassionately review and evaluate the evidence led by the parties, noting particularly the contents of Exhibits A, B, C, D and E. I have no doubt in my mind that the Appellant’s claim was founded on two grounds, namely: A. Ownership of the properties at No. 9, 9A and 9B Sparta Lane, New Benin, Benin City by reason of Exhibits A, B, C, D and E respectively, and B. That the acts of the 1st Respondent in using the title deeds of the properties as collateral in a mortgage with the 3rd Respondent without the consent and knowledge of the Appellant, the owner of those

properties was fraudulent. See paragraphs 16 and 17 of the Amended Statement of Claim.

Now, while the counsel for the 1st and 2nd Respondents had contended vehemently that the allegation of fraud was central and must be proved by the Appellant beyond reasonable doubt and that the Appellant failed to prove it as required by law,it was contended with equal vehemence by counsel for the Appellant that the mere pleading of the acts of the 1st Respondent as being fraudulent does not amount to an allegation of crime and therefore, the Appellant was under no duty to prove fraud beyond reasonable doubt and had indeed proved his allegation against the 1st and 2nd Respondents as required of him by law. Honestly, flowing immediately from the submission of the Appellant’s counsel above is a concession that the Appellant did not prove the allegation of fraud, if it amounted to a crime, beyond reasonable doubt as required by law. The law is and has always been that in any proceedings, whether civil or criminal, in which an allegation of crime is made and is central to the issues in contention between the parties, it must be proved beyond reasonable doubt by the

party making the allegation. See Section 135(1) of the Evidence Act 2011. See also Halsbury’s Laws of England, 4th Ed. Vol.36 Para 36 @ p. 27; U.K Supreme Court Practice (White Book) 1997 Vol.1 Rule 18/12/7. See further Adenle V. Olude (2003) FWLR (Pt. 157)1074; Fabunmi V. Agbe (1985) 1 NWLR (Pt. 2) 299; Babatunde V. Bank of the North Ltd (2012) All FWLR (Pt. 608) 798; Olowofoyeku V. AG. Oyo State (1996) 10 NWLR (Pt. 477) 190 @ p. 214; Amusa Adio& Anor. V. The State (1986) 4 SC 194 @ pp. 219 – 220.
So, was the allegation of fraud central to the claim of the Appellant against the Respondents? I have already held that the claim of the Appellant was founded on two planks, one of which is the allegation of fraud against the 1st Respondent. It is my view therefore, and I so firmly hold, that the allegation of fraud by the Appellant was both central and pivotal to the claim of the Appellant and in law the Appellant was under a duty to prove same beyond reasonable doubt. The Court below had upon a review of the pleadings and evaluation of the evidence of the parties found as fact that fraud was not proved against the 1st Respondent by the Appellant. So,

is Exhibit E, or even in addition Exhibit D, any evidence in proof of fraud against the Appellant as could amount to proof beyond reasonable doubt as required by law? I think not!

I therefore, cannot but completely agree with the submission of counsel for the 1st and 2nd Respondents that the Appellant, apart from merely pleading fraud failed woefully to prove fraud against the 1st Respondent beyond reasonable doubt as required by law. The Court below was thus on firmer ground when it held, and quite rightly too in my finding, that the Appellant did not make out any case of fraud against the 1st Respondent. Indeed, pleading facts is one thing, but proof is quite a different thing! In law, pleading is not and has never been the evidence required for its proof except where such fact as pleaded is admitted by the adverse party. It is incumbent on a party not only to plead facts but also to lead credible evidence in proof thereof. Thus, any pleading of fact on which no evidence at all or no sufficient credible evidence was led remains unproved and therefore, would go to no issue in the determination of issues in contention between the parties. Averments in

pleadings are at best mere notice of the case of one party to the other party. See The Registered Trustees of the Apostolic Church V. Mrs Olowoleni (1990) SCNJ 69. See also Amaechi V. INEC (2007) 8 NWLR (Pt. 1065) 9 @ p. 100.

My lords, having held that the Appellant did not prove the allegation of fraud against the 1st Respondent, did he prove his claim to title to properties at No 9 and 9A Sparta Lane, New Benin, Benin City against the 1st and 2nd Respondents? It is common ground that the property at No. 9B Sparta Lane, New Benin, Benin City belonged to the Appellant even as conceded to by the 1st Respondent and found as fact by the Court below. In Exhibit E, the property at No. 9B Sparta Lane has since been excised and released to the Appellant. The most evident from the Appellant’s evidence is that of misunderstanding and deep mistrust after the 1st Respondent had used the advantage of his being at home to have greatly assisted the Appellant not only to secure a part of his land but also to put up the building for him and rendering account for the building in good faith. I cannot see any single evidence of the 1st Respondent defrauding the

Appellant even going by the exchange of letters between them revealing rather the good faith of the 1st Respondent in his dealings with the Appellant, his cousin.

In an action seeking declaration of title to land, in order to succeed, there must be proof of title to the land in dispute by credible evidence by one or more of the five methods of proof of title to land, namely: A. Evidence of traditional history of title; B. Production of genuine and valid documents of title; C. Numerous acts of ownership; D. Acts of possession over a long period of time, or, E. Acts of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Arum V. Nwobodo (2013) ALL FWLR (Pt. 688) 870 @p. 893; Nruamah V. Ebuzoeme (2013) ALL FWLR (Pt. 681) 1426; Kano V. Maikaji (2013) ALL FWLR (Pt. 673) 1856 @ pp. 1868 – 1869; Ojah V. Eviawure (2000) FWLR (Pt. 57) 163; Okorie V. Onyejewu (2001) FWLR (Pt. 41) 1820; Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612; Egbo V. Agbara (1997) 1 NWLR (Pt. 481) 293 @ p.303; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 @ p.

133; Romaine V. Romaine (1992) NWLR (Pt. 235) 650.

The evidence before the Court below, as in the printed record, particularly Exhibits A, B, C, and D, which being documentary and made earlier in time than the oral evidence of the parties and thus should be used as hangers on which to assess the veracity of the testimonies of the CW1, DW1 and DW2, there is no evidence of purchase of any other plot of land save the one measuring 100ft by 100ft for the Appellant by the 1st Respondent. Instructively, it was the Appellant who tendered all these documents in evidence, particularly Exhibit D, wherein the 1st Respondent had categorically referred to the Appellant’s building as just one building not three buildings as being claimed by the Appellant on the strength of the same document amongst other documents.

There was no iota of any evidence of possession of the properties at No. 9 and 9A Sparta Lane by the Appellant as the only proved evidence is that these properties were in possession of the 1st and 2nd Respondents, a fact clearly attested to by Exhibit H in which the Appellant was introducing himself to the occupants of these properties, who are

tenants of the 1st and 2nd Respondents, as their landlord. It was clear therefore, and as rightly found by the Court below that the as between the Appellant and the 1st and 2nd Respondents, it was the 1st and 2nd Respondents who had been and are in possession of the properties at No 9 and 9A Sparta Lane Benin City. In law, possession is nine tenth of the law relating to land ownership. However, no possession which is adverse can stand against the person with the better title. This is why in law where there are concurrent claims to possession of the same parcel of land, the law will ascribe possession to the person with the better title, since there is nothing known to law as concurrent possession of the same land by persons with adverse claims to title to the same land. Indeed, the laws of Nigeria know nothing like concurrent possession of a piece of land by two parties claiming adversely to each other. See Aromire V. Awoyemi (1972) 1 All NLR (Pt. 4) 101 @ p. 112; Kareem V. Ogunde (1972) 1 SC 182; Amakor V. Obiefuna (1974) 1 All NLR (Pt. 1) 119; Aseimo V. Abraham (1994) 8 NWLR (Pt. 361) 191 @ p. 220; Danjuma V. SCC (Nig.) Ltd. (2017) 6 NWLR (Pt. 1561) 156 @ pp.

203 – 204.

So, as between the Appellant and the 1st and 2nd Respondents who proved and therefore, the better title to the properties at No. 9 and 9A Sparta Lane Benin City, having already found as fact that it is the 1st and 2nd Respondents that are in possession of these properties? I have carefully examined Exhibits A, B, C and D in line with the oral evidence of the witnesses that testified at the trial and it does appear to me that the Appellant who seeks a declaration of title to land and was under a duty to prove his title by any one or more of the five ways of proving title to land, failed woefully to prove any title to all or any of the two properties situate at No. 9 and 9A Sparta Lane, New Benin, Benin City as required of him by law. In law none of Exhibits A, B, C and D qualifies as title documents to support a claim for title to land. The Court below stated and found so and I affirm that finding to be correct and unimpeachable in this appeal.

My lords, I now come to the counter claim of the 1st and 2nd Respondents in relation to the part that was granted against the Appellant by the Court below. The 1st and 2nd Respondents claimed a

declaration as well as damages for trespass and an order of injunction against the Appellant. In law a counter-claim is a separate and independent claim by itself and thus the Counter Claimant therein can only succeed, particularly so where there is a declaratory relief, on the strength of his own case and not on the weakness of the case of the other party. The grant of declaratory relief is discretionary and thus can only be granted when the Court is of the view that the party seeking it, when all the facts are taken into consideration, fully entitled to the exercise the Court’s discretion in his favor. See Momodu Olubodun & Ors V. Oba Adeyemi & Anor (2008) 6 -7 SC (Pt. 111) 1. See also Onuoha V. Okafor (1983) 10 (Reprint) 75; Obi V. INEC & 6 Ors. (2007) 7 SC 268; Zenith Bank V. Ekereuwem (2012) 4 NWLR (Pt.1290) 207; Clay Industries (Nig.) Ltd. V. Aina (1997) 8 NWLR (Pt.516) 208; Adeleke V. Aserifa (1986) 3 NWLR (Pt. 30) 575.

I have already found that the Court below was right when it held that as between the Appellant and the 1st and 2nd Respondents, it was the 1st and 2nd Respondents that are the owners in possession of the properties at

No. 9 and 9A Sparta Lane Benin City. So, did they prove any act of trespass as alleged by them against the Appellant to be entitled to the award of general damages of N50, 000 for trespass against the Appellant and an order of injunction as granted by the Court below? It appears that the basis of the finding of trespass against the Appellant by the Court below was that by virtue of Exhibit H, written by the Appellant to the occupants, who are tenants of the 1st and 2nd Respondents, introducing himself as the owner of the said properties, the Appellant had intruded into the land in possession of the 1st and 2nd Respondents and was therefore, liable in trespass to them. Nothing, I thought I should repeat it for emphasis, nothing, can be farther from the truth than such an awkward and incongruous finding by the Court below! Here are two parties who had been in serious disputations over the ownership of these properties, in which one of the contending parties, the 1st and 2nd Respondents appear to have the upper hand as being in possession and also having their tenants in occupation thereof. The Appellant, rather than resorting to any form of self – help, I am

sure being a very Senior lawyer, had resorted to the very lawful, civilized and highly commendable, means of writing a letter to the occupants, or tenants of the properties, which he thought or believed, but as it has now turned out wrongly and without any legal basis, to be the owner to introduce himself to them as the owner as in Exhibit H. How, in law would or could such peaceful exercise of a perceived right to inform the occupants, without any evidence of any violence accompanying the delivery of the letter, amount to trespass to land beats my imagination!

In law, the tort of trespass to land entails and envisages more much than mere delivery of a letter to occupants of a disputed property. Or it is being suggested that the Appellant should have posted the letters on the walls or gate of the properties for the attention of the occupants? I certainly do not think so! For an act to amount to trespass to land, it must entail some form of interference, no matter how slight, with possession of another with a better title. On the evidence led by the parties, as in the printed record, I do not see any trespass at all and none was proved by the 1st and 2nd

Respondents against the Appellant. I hold, therefore, that the finding of trespass to land against the Appellant by the Court below was not supported by any iota of evidence, and was therefore, perverse. In law a decision of a Court would be regarded as perverse where amongst other reasons; A. It ignored the facts or evidence, or B. It misconceived the thrust of the case presented or C. It took irrelevant matters into account which substantially forms the basis of its decision, or D. It went outside the issues contested by the parties to the extent of jeopardizing the merits of the case, or E. It committed various errors that faulted the judgment beyond redemption. See UBN V. Chimaeze (2014) 4 MJSC (Pt. l) 58 @ pp. 72 – 73; Uwah V. Akpabio (2014)2 MJSC (Pt. 11) 108 @ p. 126; Anekwe V. Nweke (2014) 3 – 4 MJSC 183.

I have no doubt that the submissions of counsel for the Appellant on the Appellant’s claim and the submissions of counsel for the 1st and 2nd Respondents on their counter claim were very spirited and brilliant, but it must be reiterated that submissions of counsel no matter how brilliant and alluring, cannot dislodge the logic of solid

facts as established in the evidence by the parties. It cannot also take the place of the evidence not led by his client or supply the evidence not led by his client. See Bello V. National Bank of Nigeria Ltd. (1992) 6 NWLR (Pt. 246) 220.

In the circumstance therefore, issue two as it relates to the claims of the Appellant is hereby resolved against the Appellant in favor of the Respondent, while as it relates to the counter claim of the 1st and 2nd Respondents it is hereby resolved in favor of the Appellant against the 1st and 2nd Respondents.

On the whole therefore, having resolved issue one for determination partly in favor of the Appellant against all the Respondents and issue two for determination also partly in favor of the Appellant against all the Respondents, I hold that the appeal succeeds in part. Consequently, it is hereby so allowed in part.
In the result, it is hereby ordered as follows:
i. That part of the Judgment of the Court below dismissing the Appellant’s suit for being statute barred is hereby set aside
ii. That part of the Judgment of the Court below granting part of the counter claim of the 1st and 2nd

Respondent against the Appellant is hereby set aside.
iii. That part of the Judgment of the Court below dismissing the Appellant’s suit for being caught by the defense of laches and acquiescence is hereby affirmed.
iv. That part of the Judgment of the Court below dismissing the Appellant’s suit for lacking in merit is hereby affirmed
v. The Counter claim of the 1st and 2nd Respondents is hereby dismissed in its entirety for lacking in merit.
vi. The award of N50, 000. 00 as general damages for trespass against the Appellant in favor of the 1st and 2nd Respondents is hereby set aside.
vii. There shall be no order as to cost

TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I agree with the decision of my learned brother, Biobele Abraham Georgewill, J.C.A; that this appeal succeeds in part and I allow it in the manner set out in the leading judgment.

I abide by all the order in the leading judgment, including the order as to cost.

Appearances: