AGBONLAHOR v. IGBINOBARO (2020)

AGBONLAHOR v. IGBINOBARO

(2020)LCN/14909(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/B/148/2014

RATIO

COURT: DUTY OF THE TRIAL COURT IN RELATION TO EVIDENCE

The duty of a trial Court to consider, appraise, review and evaluate all relevant and admitted evidence, whether oral or depositions and or documentary, placed before it before arriving at its findings and decision is a paramount as well as a sacrosanct one which cannot under any guise be abandoned or jettison by a trial Court. Thus, where a trial Court fails in this duty then it fails it its entire duty of impartial adjudication between the contending parties before it and the appellate Court if so called upon is under a bourdon duty to intervene to evaluate the evidence as in the printed record and make relevant findings and reach appropriate decisions as borne out by the evidence in the interest of justice to the parties. See Olufosoye V. Olorunfemi (1989) 1 SC (Pt. 1) 29. See also Tangale Traditional Council V. Fawu (2001) 17 NWLR (Pt. 742) 330 @ pp. 335 – 336. PER GEORGEWILL, J.C.A.

EVIDENCE: MEANING OF EVALUATION

Thus, it is now elementary that evaluation of evidence would entail and demand that the evidence proffered by the parties are assessed, appraised and weighed impartially on the imaginary scale of justice by the Court so as to give probative value or quality to it and there must be on the record, and very importantly too, how the Court arrived at its choice of preference of one piece of evidence to the other. It cannot just be merely a product of the whims and caprices of the judge. No! He must show on record his reason for so doing. See Alake V. State (1992) 9 NWLR (Pt. 265) 260. See also Dantiye & Anor V. Kanya & Ors (2008) LPELR – 40094 (CA); Afemai Microfinance Bank Ltd V. Seacos Nig. Ltd (2014) LPELR – 22583 (CA). PER GEORGEWILL, J.C.A.
LAND LAW: WAYS OF PROVING TITLE TO LAND

Now, in a claim and counter – claim for declaration of title to the land in dispute, it is settled law that 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) AII FWLR (Pt. 688) 870 @p. 893; Nruamah V. Ebuzoeme (2013) AII FWLR (Pt. 681) 1426; Kano V. Maikaji (2013) AII 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.
In Ezukwu v. Ukachukwu (2000) 1 NWLR (pt 642) 657 @ p. 679 it was reiterated inter alia thus:
“A claimant of title to land, of course, need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root of title needs must be, firstly established before the exercise of the rights of ownership may be exercisable.” PER GEORGEWILL, J.C.A.

EVIDENCE: EFFECT OF UNCONTRADICTED EVIDENCE

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

SMART O. AGBONLAHOR ESQ. (Party Substituted For Madam Eunice Enabulele) APPELANT(S)

And

MADAM ENARUNA IGBINOBARO RESPONDENT(S)

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. Erhabor J., in Suit No. B/369/97: Madam Eunice Enabuele V. Madam Enaruna Igbinobaro, delivered on 17/1/2014, wherein the Claims of the Appellant as Claimant against the Respondent as Defendant were dismissed, while the Counter – Claims of the Respondent were granted against the Appellant.

The Appellant was peeved with the said judgment and had appealed against it to this Court vide the original Notice of Appeal filed on 21/1/2014 on two grounds of appeal at pages 156 – 158 of the Record of Appeal. The Record of Appeal was transmitted to this Court on 1/4/2014 but was on 3/5/2018 deemed properly transmitted together with a Supplementary Record of Appeal. Subsequently, the Appellant filed an Amended Notice of Appeal on 13/10/2015 on four grounds of appeal but was deemed properly filed on 3/5/2018. The Appellant’s Amended brief was filed on 19/6/2018 but was deemed properly filed on 23/11/2020. The Respondent’s brief was filed on 4/6/2018. The Appellant’s reply brief was filed on 14/6/2018.

At the hearing of this appeal on 23/11/2020, Smart O. Agbonlahor Esq., learned counsel appearing in person for the Appellant adopted the Appellant’s brief and reply brief as his arguments and urged the Court to allow the appeal and set aside the judgment of the Court and to grant the Claims of the Appellant. On his part, F. N. Owakwue Esq., learned counsel for the Respondent adopted the Respondent’s brief as his arguments and urged the Court to dismiss the appeal and affirm the judgment of the Court below.

By a Writ of Summons and an Amended Statement of Claim filed on 17/7/2008, the Appellant as Claimant before the Court below claimed against the Respondents as Defendants, the following reliefs, namely:
1. A Declaration that the Plaintiff is the person entitled to a grant of a Certificate of Occupancy over all that piece or parcel of land measuring 75feet by 100feet which is properly delineated and verged RED in Survey plan No. LEED/D.004/95 situate and lying at Egua-Iyoba ward 23/L Benin City, bounded on the one side by first Federal Road, on the second side by the property of Mrs. Oliha

on the third side by the second federal road, on the fourth side partly by the property of Mrs. Agbonifo.
2. N1,500,000 damages for trespass.
3. An Order of perpetual injunction, restraining the defendant by herself, agents, workmen, privies, or servants from taking possession of or doing anything whatsoever on the said parcel of land or continuing the erection of any building or doing anything whatsoever on the said parcel of land inconsistence with the right of the Plaintiff. See pages 1 – 17 of the Record of Appeal.

In response, by the 2nd Further Amended Statement of Defense/Counter Claim dated 27/6/2012 the Respondent as Defendant Counter – Claimed against the Appellant for the following reliefs, namely:
1. A Declaration that the Defendant is the person entitled to a certificate of occupancy over all that piece or parcel of land measuring 19.61meters by 32.97meters by 21.13meters by 33.30meters with a total area of 403.395 square meters which is more properly delineated and verged green and thick bold red in the land in dispute survey plan No. VPS/ED12/045 situate and lying at Egua – Iyoba, ward 23/L Benin City.

An Order of perpetual injunction restraining the plaintiff by himself, agents, privies, servants or assigns from committing any act of trespass on the said parcel of land. See page 27 of the record.BRIEF STATEMENT OF FACTS
The gist of the case of the Appellant, as Claimant before the Court below, as can be gleaned from their pleadings and evidence, oral and documentary led at the trial was that he originally acquired a land measuring 75ft by 200ft which is bounded by First Federal Road, Mrs. Agbonifo, Madam Oliha and Mrs. Kata Afe Enebhilij 2nd Federal Road, Benin City while the Respondent originally claimed that the land in dispute was 100ft by 200ft. It is the appellant case that the land in dispute was acquired by his mother in his name and she initiated the suit, via power of Attorney Exhibit “F” donated to her while Appellant was away from the country. She applied in her son’s name for the land in dispute that is opposite her late husband’s land/house through the plot allotment committee of Ward 23/L, Egua-Iyoba of which her uncle, late E. U. Irabor was the secretary and who was equally instrumental for her acquisition of the said land, which has

not previously allocated to anybody and was dispute free. She was eventually handed the Oba’s approval in Exhibit D as a proof of her completing all necessary formalities/procedures for acquiring same. She purchased the crops/rubber trees on the land from one Ogiewmonyi and was issued receipt by the owner of the rubber trees on the land in Exhibit B. The Appellant grew up and started using the land opposite his father’s house as a football pitch with friends in the neighborhood without let or hindrance for years and she surveyed the land in her son’s name. In 1987, Late Chief Theophilous Musa Brai, the Respondent’s predecessor-in-title came into the Land when he approached the Appellant, alleging that he was a contractor to Dumez Construction Company that was then working on the Moats with drainage near the Appellant father’s house to use the land temporarily for deposit of excavated laterite, which the Appellant obliged him while away from home as a Student/Youth Corper in 1986/1987. The Appellant returned from Youth Service in 1987/1988 and noticed and promptly challenged the acts of trespass on the land by Chief Brai who capitalized on

the absence of the Appellant.

On the other hand, the gist of the case of the Respondent, as Defendant/Counter Claimant as can be gleaned from their pleadings and evidence, oral and documentary led at the trial was that she acquired title to the land in dispute from one Engr. Fredrick Osakue-Idu in 1993. The land is situate at Ward 231along Federal Road, Behind Eghosa Grammar School, Egua-Iyoba, Benin City and all necessary transfer agreement was signed and documents relating to the land were transferred and given to her. At the time she bought the land there was a fence which the seller informed her was erected by his predecessor-in-title, Chief T. N. Brai and that the Claimant is not the owner of the land in dispute because his Oba’s Approval marked Exhibit I was not signed by Mr. Uhunmwangho alias Action speaks’ who was the Oba’s Secretary at the material time and was secretary from 1954 to about January, 1969. That T. N. Brai was the former owner of the land measuring 100ft by 200ft which the land in dispute forms a part of and which he bought from one Mr. J. I. Ahmed, the original owner of the land in whose favor the

Oba’s Approval was issued on the 15/2/1963. Immediately after the purchase she took effective possession of the land and started erecting a building which she has built up to decking stage before the Appellant began to interfere with the land in dispute by using hired thugs to disturb the building activities in the land in dispute, this made her to invite the police, who could not settle the dispute as they said they had no jurisdiction to settle land disputes. The Appellant brought the matter to the Plot Allotment Committee of Ward 23/L, Egua-Iyoba, Benin City sometimes in 1995, which sat as an Arbitration Panel and gave its decision precisely on 4/7/1995 in favor of the Respondent in respect of the land in dispute. The Appellant has never exercised any acts of ownership over the land in dispute as it was Chief T. N. Brai who fenced it before transferring to Mr. Fredrick Osakue-ldu. The Respondent was told by ChiefT. N. Brai before he died that he was the one who molded blocks on the land in dispute which he used in fencing the land, over which he applied and got a Certificate of Occupancy, which along with all other documents were duly handed over to the Respondent.

The parties filed and exchanged pleadings and the matter proceeded to trial. At the trial, the Appellant as Claimant in proof of the claims called four witnesses, who testified as PW1, PW2, PW3 and PW4 and tendered some twelve documents admitted in evidence as Exhibits A – L. The Respondent as Defendant/Counter Claimant in proof of the Counter – Claim and defense also called four witnesses, who testified as DW1, DW2, DW3 and DW4 and tendered some ten documents admitted in evidence as Exhibits N – X. At the conclusion of trial and adoption of the final written addresses by counsel, the Court below delivered its judgment on 17/1/2014 dismissing the Claim of the Appellant as Claimant, while granting the Counter – Claim of the Respondent as Defendant/Counter Claimant, hence this appeal. See pages 134 – 155, 156 – 158 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the grounds of appeal, namely:
1. Whether the learned trial judge was right in basing his judgment relying on Exhibits “J” and “N” in giving his judgment?

Did the learned trial judge properly appraise and evaluate the mass of evidence led in the Suit before coming to the judgment it reached in favor of the Respondent?
3. Whether the learned trial judge was right in not granting judgment to the Appellant as per his Claims?

In the Respondent’s brief, the three issues as distilled in the Appellant’s brief were adopted as the issues arising for determination in this appeal.

I have taken time to review the pleadings and evaluate the evidence of the parties and 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 three issues on which both parties are ad idem are the apt issues arising for determination in this appeal. I shall consider all the three issues, which are clearly interwoven as to who as between the Appellant and the Respondent proved their title to the land in dispute and ought to have been entitled to the judgment of the Court below, together and resolve them in one fell swoop.

ISSUES ONE, TWO AND THREE
Whether the learned

trial judge was right in basing his judgment relying on Exhibits “J” and “N” in giving his judgment, AND Whether the learned trial judge properly appraise and evaluate the mass of evidence led in the Suit before coming to the judgment it reached in favour of the Respondent, AND Whether the learned trial judge was right in not granting judgment to the Appellant as per his Claims?

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted that the PW3 was not at any so-called arbitration in Exhibit N dated 4/7/1995 and by September 1995, she and the Respondent were still at the Police Station at Okhoro which shows she was neither a party to the so – called arbitration nor submitted to its outcome and contended that there was no arbitration at all, suffice the one capable of being accepted and binding that require the enforcement of the principle of Estoppel per rem judicatam and urged the Court to hold that had the Court below afforded parties the opportunity to address it on Exhibits J&N it would not have suo motu arrived at the perverse finding that it constituted a binding arbitration and erroneously

acted on it and to allow the Appeal and set aside the perverse judgment of the Court below. Counsel relied on Okereke V. Nwankwo (2003) 25 WRN 88 SC; Awosile V. Sotunbo (1992) 5 NWLR (Pt. 243) 514; Lawani Alii Oduola Aremu V. Chief. G. Abass Alesinloye & Ors (2000) 2 SCNQR 285 @ p. 287; Madam Helen Obulor & Anor V. Linus Hero Oboro (2001) 6 NSCQR (Pt. 1)16 @ p. 18.

It was also submitted that both Exhibits J and N purportedly relate to the same subject matter and contended that the Court below in relying on Exhibit N while discountenancing Exhibit J and attempting to distinguish the two was merely trying to distinguish between six and half a dozen and contended that both Exhibits were covered by the same title document of Oba’s approval in Exhibit D and Exhibit J being first in time to Exhibit N ought to have prevailed and urged the Court to hold that the Court below had acted erroneously and mistakenly based on an impression that there were two separate Oba’s approvals, one covering the land of Mrs. Kate Afe Enabhili and the other covering that of the Respondent, which holding led to miscarriage of justice and perversity and should be set

aside and the appeal allowed. Counsel relied on Achilihu V. Anyatonwu (2013) 12 NWLR (Pt.1368) 256 SC; Philip Njoku V. Felix Ekencha & Anor (1972) ECSTLR 199.

It was further submitted that Exhibit N does not constitute a valid customary arbitration in that in law it does not have the attribute nor conformed to a proper customary arbitration and contended that to constitute a valid the four ingredients of valid customary must be pleaded and established; That there has been a voluntary submission of the matter in dispute to an arbitration of one or more person, of which there was no such evidence; that it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding; that the said arbitration was in accordance with the custom of the parties or of their trade or businesses; and that the arbitrators reached a decision and published their award and urged the Court to hold that Exhibit N lacked all these criteria and was therefore, not a binding valid customary arbitration and also inadmissible in law contrary to the perverse decision of the Court below and to allow the Appeal and

set aside the perverse judgment. Counsel referred to Section 83 (3) of the Evidence Act 2011, and relied on Agu V. Ikewibe (1991) 3 LRCN 716; Emavworhe Etajata V. Peter Igbini Ologbo (2007) 11MJSC 176; Raimi V. Ogundana (1986) 3 NWLR (Pt. 26) 97; Alhaji Safianu Aminu & Ors V. Isiaka Hassan (2014) Vol. 1 MJSC (Pt. 1) 1.

It was further submitted that it was not just enough for a party to write down the ingredients of a customary arbitration and tendering Exhibit N without any credible evidence in support, and the Court below lifting the contents of such Exhibit N hook line and sinker as its own judgment and contended that there must be credible evidence to established the ingredients of customary arbitration before the Court placing evaluation on such document that it contents actually took place and urged the Court to allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Helen Obulor & Anor V. Linus Hero Oboro (supra); Felix V. Echoh (supra).

It was also submitted that the Court below merely turned a blind eye on the record of proceedings in regards to the cross examination of DW1 in that Exhibit M comes in

before Exhibit P but contended that Exhibit M is completely absent from the record of the Court below and which occasioned miscarriage of justice resulting from a judicial bias in judgment and urged the Court the Court to hold that the probative value placed on Exhibit N was worthless and misplaced and allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Rafiu Womiloju V. Mr. Fatai Ogisanyin Anibire (2010) 42 (Pt. 2) NSCQR 878.

On issue two, learned counsel for the Appellant had submitted that the Court below did not properly evaluate the mass of evidence led by the parties in that it ignored and/or show scant regard to vital, relevant and admitted evidence and or documents and failed completely to properly evaluate the mass of evidence led by the parties and contended that the Court below was in grave error when it made no findings on the evidence led by the parties but merely solely based his judgment entirely on the contents of Exhibits J and N on which no evidence was led and urged the Court to hold that the Court below gave no probative value to Exhibits C, O, M, P, R3 and X and which consequently led to the

perverse judgment of the Court below which should be set and the appeal be allowed. Counsel relied on Daniel Bassil & Anor V. Chief Lasisi F. Fajebe and Anor (2001) 6 NSCQR (Pt. 1) 269 @ p. 274.

It was also submitted that the Court below rather than dispassionately evaluating the evidence led by the parties descended into the arena making unfair speculations, observation and argument in respect of Exhibit C and Exhibit R3 which findings was perverse and therefore occasion miscarriage of justice and urged the Court to hold that the finding was contrary to the procedure to be followed in obtaining a direct grant of land from the Oba of Benin in Benin customary law system as has been firmly established through several decided cases. Counsel relied on Aigbe V. Edokpolor (1977) 2 SC 1; Bello V. Arase (1981) 1 SC 101; Arase V. Arase (1981) 5 SC33; Uhumwangho V. OKojie (1982) 9 SC 10; Emegule V. Agbonkonkon (1999) 7 NWLR (Pt. 598) 166; Famuroti V. Agbeke (1991) 5 NWLR (Pt. 189) 1; Olosunde V. Oladele (1991) 9 NWLR (Pt. 188) 713; Agwarangbo V. Nakande (2000) 9 NWLR (Pt. 672) 341.

It was submitted that in law the Court below having failed to evaluate the

evidence, both oral and documentary as led before it by the parties, it is the duty of this Court to invoke its’ power to re – evaluate the totality of the evidence as in the printed record to make proper finding of facts as dictated by the interest of justice and to allow the appeal and set aside the judgment of the Court below. Counsel referred to Section 15 of the Court of Appeal Act 2004; Order 1 Rule 20 of the Court of Appeal Rules 2016; and relied on Oko V. Ntukidem (1993) 2 NWLR (Pt. 264) 124; Shell-BP Petroleum Development Co. of Nigeria. Ltd. V. Pere Cole (1978) 3 SC 183; Akpan V. Otong (1996) 10 NWLR (Pt. 476) 108; Okoya V. Santilli (1990) 2 NWLR (Pt. 131) 172; Ehimare V. Pespso Cola international Ltd (1994)3 NWLR (Pt. 329) 1.

On issue three, learned counsel for the Appellant had submitted that the Court below was wrong in not entering judgment in favor of the Appellant in that it failed to evaluate the root of title of the parties by ignoring or showing scant regard to them and came to a decision that was perverse and which occasioned miscarriage of justice and contended that though the dimension of the land was put in dispute as between

Exhibits D and R3 the Court below failed to resolve it and urged the Court to hold that the Respondent, who counter-claimed for title could not prove the certainty as to the dimensions of the land she was laying claim to and to set aside the declaration of title to the land in dispute made by the Court below in favor of the Respondent without any credible evidence in support thereof. Council relied on Newbreed Organization Limited V. J.E. Erhomosele (2006) 26 NSCQR (Pt. 1) 47; Miss Ezeanah V. Alhaji Atta (2004) 2 SCNJ 200; Chief Mrs. F. Akintola & Anor V. Mrs. C.F.A.D. Solano (1986) 4 SC 141; Nwafor Elike V. Ihemereme Nwankwoala & Ors (1984) 12 SC 301.

It was further submitted that contrary to the perverse finding of the Court below, the Appellant proved three out of the five ways of acquiring title to land in Nigeria by credible evidence and testimonies by way of production of title document, acts of long possession for over 27 years using it for farming and as a football pitch and ownership of adjacent/connected land and contended that as at the time Exhibit “R3” was purportedly made in 1963, the land had already been allocated to

the Appellant in 1961 and therefore, the Oba no longer has any interest in the disputed land to convey to the Respondent predecessor-in-titles under the application of the Latin maxim of “Nemodat quod non habet”. Counsel relied on Kyari V. Alkali (2001) 6 (Pt. 2) NSCQR 819; Ife V. Essien (1985) 5 NWLR (Pt. 4) 378; Edosa V. Zaccala (2006) All FWLR (Pt. 306) 881.

It was also further submitted that the Deeds of Assignments in Exhibit X and W, were registrable instruments and having not been registered were in law inadmissible in evidence and should be expunged from the record of the Court’s record and contended that in addition they also did not contain the consent of the Governor as required by law and urged the Court to hold that being offensive to the laws they were both rendered null and void and therefore, could not support any declaration of title to land in favor of the Respondent as was erroneously done by the Court below in the judgment appealed against and to allow the appeal and set aside the said perverse judgment. Counsel referred to Sections 22 and 26 of the Land Use Act and relied on Raphael Waka Ogbimi V. Niger Construction Ltd

(2006) 26 (Pt. 1) NSCQR 407; Calabar Central Co-Operative, Thrift and Credit Society Ltd V. Bassey Ebong Ekpo (2008) 33 NSCQR (Pt. 2) 1146.

RESPONDENTS’ COUNSEL SUBMISSIONS
On issue one, learned counsel for the Respondents had submitted that parties are bound at all times by their pleadings and contended that Exhibits J and N were duly pleaded and evidence was led on them leading to the judgment of the Court below rightly based on them and urged the Court to hold that such a judgment founded rightly on the facts as duly pleaded and supported by the credible evidence of the Respondent was one which should be affirmed and the appeal dismissed for lacking in merit. Counsel relied on Atanda V. lliasu (2012) 1214 LRCN 229; Adekeye V. Adesina (2011) 191 LRCN 65.

It was also submitted that the existence of the binding customary arbitration between the parties in favor of the Respondent was duly pleaded and proved in evidence as required by law and contended that it was even the Appellant who initiated the arbitration proceedings before the Plot Allotment Committee of Ward 23/L, Egua –Iyoba Benin City and was in law therefore, bound by the

resultant verdict on 4/7/1995, though in favor of the Respondent against the Appellant and urged the Court to hold that these facts having neither been challenged nor controverted were correctly relied upon by the Court below in its judgment in favor of the Respondent. Counsel relied on Oseni V. Bajulu (2010) 178 LRCN 26; Alhaji AminuIshola V. Union Bank of Nigeria Limited (2005) 21 NSCQR 167.

It was further submitted that Exhibits J and N were relevant and admissible and were properly so admitted by the Court below and used correctly for the purpose for which they were pleaded and contended that since the use of these Exhibits were for the purposes for which they were pleaded and tendered in evidence, there was no further need for the Court below to invite the parties to address on them and urged the Court to hold that the judgment of the Court below founded on them was correct and cannot be disturbed by this Court and to affirm the correct judgment of the Court below.

It was also submitted that Exhibit N was a genuine document and the evidence showed that both parties submitted themselves to the Plot Allotment Committee to resolve the issue of the

ownership of the land in dispute between them and contended that in law where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary law and agreed expressly or by implication that the decision of the arbitration would be accepted as final and binding, then once the arbitrators reach a decision, it is no longer open to either party to subsequently back out of such a decision as the Appellant tried to do in this Appeal and urged the Court to hold that he cannot in law be allowed to so do and to affirm the findings of the Court below on Exhibit N and to dismiss the appeal. Counsel relied on Ojibah V. Ojibah (1991) 4 LRCN 1215.

It was further submitted that the fact of the Appellant’s mother, PW3, going to the Police over title to land which is clearly outside the powers and duties of the Police does not amount to a decision not to accept the verdict of the arbitration initiated by her since such a visit was irrelevant and contended that the Appellant was bound by the decision of the Plot Allotment Committee through which he claimed he got his Oba’s Approval and which body found that his Oba’s

Approval in Exhibit D was false, forged and not genuine and urged the Court to affirm the preference of the Court below on good grounds the evidence of the Respondent and granting het title to her land put in dispute by the Appellant. Counsel relied on Diamond Bank Plc. V. HRH. Eze (Dr.) Peter Opara (2018) 277 LRCN 26; Ayanwale V. Odusami (2012) 204 LRCN 198.

On issue two, learned counsel for the Respondent had submitted that it is not in the Appellant’s power to decide which document is fake or valid but by the issuing body and in the instant case, the Plot Allotment Committee of the land in dispute which happened to be the Arbitrators between both parties in Exhibit N, which found that the Appellant’s document in Exhibit D did not emanate from them and rather holding and preferring the Respondent’s document in Exhibit R3 as originating from them and contended that in the circumstances has no claim to the title to the land in dispute as against the Respondent with the better title and the Court to so hold and to affirm the judgment of the Court below and to dismiss the appeal. Counsel relied on Maihaja V. Gaidam & ors

(2017) 274 LRCN 1; Ohiaeri V. Yussuf & Ors. (2009) 175 LRCN 21; Napoleon S. Orianzi V. Attorney -General Rivers State (2017) 271 LRCN 150.

It was also further submitted that on both the pleadings and evidence led by the parties as to the identity of the land in dispute, it was clear that the land in dispute on which the Appellant claimed to have used as a football pitch and the Respondent has her building under construction was very well known to both parties and contended that in law once the land in dispute is well known to both parties, the need for further identifying the land is not necessary and urged the Court to hold that the identity of the land in dispute very well known to both parties was not put in issue and to dismiss the appeal. Counsel relied on Dakolo V. Rewane – Dakolo (2011) 198 LRCN 1; Ojibah v. Ojibah, (1991) 4 LRCN 1215; Auta V. Ibe (2003) 110 LRCN 1602.

On issue three, learned counsel for the Respondent had submitted that the Appellant does not have any documents or Exhibits that the Court below would attach any weight to because Exhibit D through which all his other Exhibits flow is fake, forged and not genuine and

thus no reasonable Court will rely on forged, fake document to find in favor of such a party and contended that having submitted themselves before the Plot Allotment Committee, the parties are bound by the decision reached by that body and urged the Court to disallow the Appellant from resiling from the contents of Exhibit N and to dismiss the appeal for lacking in merit. Counsel relied on Oparaji V. Ogiedereji (1999) 70 LRCN 1822; Ojibah V. Ojibah (1991) 4 LRCN 1215.

It was further submitted that a holder of a Statutory Right of Occupancy is not prohibited from entering into written agreement such as Exhibit X and W before seeking the consent of the Governor and contended that in law an agreement can be executed before being forwarded for the Governor for his consent and urged the Court to hold that such procedure is valid and does not render such an agreement null and void as erroneously submitted by the learned counsel for the Appellant. Counsel referred to Sections 22 and 26 of the Land Use Act 1978 and relied on llori & Ors V. Ishola & Anor (2018) 278 LRCN 1; Awojugbagbe Light Ind. V Chinukwe (1995) 4 NWLR (Pt. 390) 379 @ pp. 435 – 436.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had reiterated there was no arbitration between the Appellant and the Respondent on 4/7/1995, or any day at all in 1995 and that in less than two weeks after the purported arbitration in Exhibit N, the Appellant’ mother had already filed a Suit in Court which was an indication that there was no customary arbitration voluntarily submitted to and capable of being accepted and binding to warrant estoppels by arbitration and urged the Court to so hold. Counsel relied on Okereke V. Nwankwo (2003) 25 WRN 88 SC; Awosile V. Sotunbo (1992) 5 NWLR (Pt. 243) 514.

It was also submitted that the Court below found that Exhibit D was not forged when it held that there was nothing to show that whether it is mandatory that the Oba’s approval must indicate the beacon numbers forming the boundaries of the land which was neither persuasively canvassed nor any judicial authority cited and contended that the submission that the Appellant’ Exhibit D was fake because it did indicate the beacon numbers was misplaced and urged the Court to hold that it was also not proved

in evidence that Mr. Uhunmwangho alias “Action speaks” was the Oba’s Secretary at the material time or that he was in that position from 1954 to about January 1969 since it does not constitute one of those facts for which the Court must take judicial notice and to allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Aromolaran V. Oladele (1990) 2 NWLR (Pt. 160) 359.

RESOLUTION OF ISSUES ONE, TWO AND THREE
My Lords, issues one, two and three frontally call into question the evaluation of evidence, findings and decisions of the Court below as to whether or not proper evaluations were carried out and findings flowing from such evaluation arrived at by the Court below, and whether or not the decisions arrived at the by the Court below were correct on the face of the state of the issues joined by the parties in the pleadings and the evidence led thereon.

Now, while the Appellants had contended that the Court below did not carry out proper evaluation of the evidence and thereby arrived at wrong findings of facts leading to its perverse decision to dismiss the Appellants’ claim and granting the

Respondents’ counter – claim, the Respondents had contended that the Court below did a proper evaluation of the totality of the evidence led in line with the pleadings of the parties and did arrived at proper finding of facts and therefore, reached the correct decisions on the claims and counter – claims of the parties in dismissing the Appellant’s claim while granting the Respondent’s counter – claim.

(1989) 1 SC (Pt. 1) 29. See also Tangale Traditional Council V. Fawu (2001) 17 NWLR (Pt. 742) 330 @ pp. 335 – 336.

Thus, it is now elementary that evaluation of evidence would entail and demand that the evidence proffered by the parties are assessed, appraised and weighed impartially on the imaginary scale of justice by the Court so as to give probative value or quality to it and there must be on the record, and very importantly too, how the Court arrived at its choice of preference of one piece of evidence to the other. It cannot just be merely a product of the whims and caprices of the judge. No! He must show on record his reason for so doing. See Alake V. State (1992) 9 NWLR (Pt. 265) 260. See also Dantiye & Anor V. Kanya & Ors (2008) LPELR – 40094 (CA); Afemai Microfinance Bank Ltd V. Seacos Nig. Ltd (2014) LPELR – 22583 (CA).

So as between the Appellant and the Respondent who proved their respective claim and counter – claim to the title to the land in dispute? Was the Court below right when it held that it was the Respondent that proved and was thus entitled to a grant of title to the land in dispute? Does this finding by

the Court below flow from the issues as joined by the parties in their pleadings and the evidence led thereon?

In support and in proof of the averments at the trial before the Court below, the Appellant called four witnesses, who testified as PW1, PW2, PW3 and PW4 and tendered twelve documents admitted in evidence as Exhibits A – L. The Respondent as Defendant/Counter Claimant in proof of the Counter – Claim and defense also called four witnesses, who testified as DW1, DW2, DW3 and DW4 and tendered ten documents admitted in evidence as Exhibits N – X.

The first witness for the Appellant was one Adebayo Animashaun a registered land surveyor. He stated that he was shown the boundaries and carried out the survey of the land in dispute, measuring about 200ft by 75ft and produced a property survey and later went to prepare a litigation survey plan. He gave a description of the features on the land and admitted that the Respondent is putting up a structure and that the portion verged blue is the property claimed by the Respondent as shown in her survey plan. He was thoroughly cross-examined and he admitted that he didn’t demarcate the verged green from

the verged red and that he saw the area fenced for Mrs. Kate Afe Enebeli.

The Appellant’s second witness was one Victor Igbinosun. He stated that he knows the Appellant’s mother and that she came in 1961 to Egua-Iyoba Ward 23/L to apply for a piece of land, of which he acted as the pointer and measuring 75ft by 200ft and that an approval was prepared and taken to the palace as the land has not been given to any one previously and it was recommended by the Plot Allotment Committee to the Oba for approval. He was also thoroughly cross-examined and he stated that in 1961, the area was bushy and that he was appointed as pointer.

The Appellant’s mother, Madam Eunice Enabulele also testified and stated that the Respondent trespassed on the land in dispute which faces her husband’s house and that it is a vacant land. She went to the Chairman and Secretary and a pointer was sent to the land measuring 200ft by 75ft and she also bought the rubber trees on the land in dispute and maintained that Evbareke was created only during the Ogbemudia’s regime. She subsequently obtained the Oba’s approval as in Exhibit “D” and later sold out

100ft by 75ft to one Enebeli. She was also thoroughly cross examined and she maintained that she acquired the land in 1961 and that Exhibit D was not fake but genuine but she does not if one Ahmed transferred the land in dispute to one Chief Brai.

The Appellant, Smart Agbonlahor also testified and stated that he gave power of attorney to his mother to prosecute the action while he was out of the Country and maintained that he owns the land, which was acquired in his name by his mother and got it surveyed in his name. In 1981 and 1982, one Chief T. Brai approached him in respect of the property to deposit laterite from Dumez Construction Company which he gave his consent. Prior to that time the land was used as a football pitch with his friends, which games were resumed one month after the laterite was removed. On his return home, he confronted one Kate Afe Enebeli who had blocks on part of his land and informed that she bought from one Chief Brai, who requested to buy the land from him but he refused and the matter was later taken before the Plot Allotment Committee which gave a decision in his favor as in Exhibit J and it was only in 1995 that the

Respondent came and laid claim to the land in dispute despite his protestations. He was also thoroughly cross examined and he maintained that he owns the land in dispute and that the Respondent has no legal title over the said land as the sale of the land to Ale Enebeli was also illegal and the Certificate of Occupancy of Mr. Brai was forged and that the said Mr. Brai never exercise any acts of ownership over the land.

The first witness for the Respondent was one Chief David Igbinoba, who stated that he was one of the members of the defunct Plot Allotment Committee of Ward 23L Egua-lyoba, Uselu and originally measured 100ft by 200ft and was recommended for transfer to one Mr. J.I. Ahmed. He stated Oba Akenzua signed the approval for Mr. J.I. Ahmed and that he was sent to the bush to measure out the plot for him and that the land was never transferred to any other person. He maintained that members of Ward 23L Plot Allotment Committee looked into the dispute and they found out that the document of the Appellant was forged while that of the Respondent was authentic. He was thoroughly cross examined and he is 95 years old and the Appellant’s mother is

his sister from the same village. He knows the land in dispute and that the Appellant’s father’s house is at the area of the land in dispute and that Evbareke was created long ago by Oba.

The second witness for the Respondent was one Jonathan UgoInmafidon, a civil servant with the Ministry of Lands, Surveys and Housing, as Assistant Chief Deeds Registrar and tendered several documents for which he was subpoenaed, including the Certified True Copy of the deed of transfer between J.I. Ahmed and Chief T.N. Brai dated 17/8/1977 and Chief T.N. Brai’s Certificate of Occupancy No. BDSR8849 Bendel State, No. 40, page 40, on Vol. B119 of Lands Registry Benin City as well as the Deed of Assignment between Chief Theophilus Nusa Brai and Kate Enebhili dated 17/5/1989 registered as No. 14 at page 14, vol. 812. He was briefly cross examined and he stated that he was directed to represent the Director General and maintained that he has seen the Oba’s approval but admitted that he did not see Evbareke but Uselu-Egua-Iyoba.

The third witness for the Respondent was one Victor Akhimien, a professional surveyor, who stated that he made a survey plan in 1990 for

the Respondent as well as a Litigation survey plan and that in May 2012, the defendant approached him again to visit the same land and prepare another litigation survey plan which he did and handed a certified true copy of same dated 23/5/12 to her. He described the features on the litigation survey plan with a total area of 403.395 Square meters. He was thoroughly cross examined and he maintained that place surveyed was less than 100ft.

The Respondent, Enaruna Igbinabaro testified and stated that the land was approved to one Mr. Ahmed measuring 100ft by 200ft as in the Oba’s approval and that at the time Chief T.N. Brai obtained a Certificate of Occupancy other people in the neighborhood had developed their portion of lands where roads had been constructed and that these developments encroached on his predecessor’s parcel of land reducing the size to the present dimension as indicated in the Certificate of Occupancy of Chief T.N. Brai issued to him in 1988 while the Oba’s approval was issued in 1963. She that the disputed land is situate at Ward 23/L along Federal Road behind Eghosa Grammar School Uselu, Egua-Iyoba Benin City and belongs to her and

measures 100ft by 100ft, which she bought from late Engr. Frederick Osakue Idu in 1993 as evidence by a deed of transfer and that when she bought the land there was a wall fence which Engr. Frederick Osakue-Idu informed her was erected by his predecessor in title, Chief T.N. Brai, who bought his 100ft by 200ft from J.I. Ahmed the original owner. She has erected a building to decking stage on the said before the Appellant interfered leading to Police interventions and the Appellant later took the matter to the Plot Allotment Committee of Ward 23/L Egua-lyoba sometime in 1995 where it was decided in her favor on 4/7/95.

The Respondent was thoroughly cross – examined and she admitted that she did not buy the said land from the original allottee but all the documents relating to the said land were handed over to her upon her purchase of the land.

My Lords, at the trial a host of documents were tendered by the parties and admitted in evidence as follows: Exhibit A was Litigation survey plan No. LALD/054/96; Exhibit B was Purchase receipt dated 16/11/61; Exhibit C was Photocopy CTC Midwestern Nigeria Gazette; Exhibit D1 was Photocopy of

litigation survey plan No. LASO/034/87; Exhibit D2 was Photocopy of application for plot dated 12/6/61; Exhibit E was Deed of agreement dated 7/9/77; Exhibit F was Power of Attorney dated 7/7/95; Exhibit G was Letter dated 18/10/88; Exhibit H was Letter dated 12/01/89; Exhibit J was CTC O letter dated 21/01/89; Exhibit K was Letter dated 16/5/95; Exhibit L was Litigation plan No. LABD/034/87; Exhibit M was Letter of Authority dated 20/3/62; Exhibit N was Letter dated 4/7/95; Exhibit P was Letter dated 2/2/61; Exhibit Q was Photocopy of Subpoena dated 10/12/12; Exhibit R was Certificate of Occupancy No. 8849; Exhibit S was Photocopy of Deed of assignment dated 17/5/89; Exhibit T was Photocopy of Application for Plot dated 2/01/63; Exhibit U was Litigation survey plan No. VPS/ED96/161; Exhibit V was Litigation survey plan No. VPS/ED12/045, Exhibit W was Deed of Assignment dated 26/11/93, Exhibit X was Deed of Assignment dated 28/11/90; Exhibit Y was Application for building dated 2/01/63, Exhibit 1DB was Photocopy of Deed of Assignment dated 17/5/89; and Exhibit 1DC was Photocopy of Certificate of Occupancy No. 8849.

It was on the strength of the above

pleadings and evidence, both oral and documentary, that the Court below had in its judgment delivered on 17/1/2014, held inter alia thus:
“….This case in my considered view will be determined by the probative evidential value that can be ascribed to Exhibit “J” and “N” Exhibit “J” was a customary arbitral decision by the Plot Allotment Committee Ward 23/L Uselu quarters, Benin on 21st January, 1989 between the claimant and one Mrs. Kate Afe Enebhili. However Exhibit “J” is not quite relevant to this case as Kate Afe Enebhili is not a party in this case. Exhibit “N” is another customary arbitral decision. This was decided on 4th day of July and is therefore more recent than Exhibit “J”. The parties are the same parties in this case. In the document titled land in dispute between Madam Enaruna Omorenuwa Igbinobaro and Smart O. Agbonlahor. The matter was said to be decided by the defendant Plot Allotment Committee Ward 23/L, Egua-Iyoba Uselu quarters Benin City. In the decision, references were made to the two Oba’s approvals submitted by the contenders or parties. It was decided by the Committee that Madam Enaruna Omorenuwa Igbinobaro is the

rightful owner of the said plot in dispute. The report indicated that both parties were invited and tendered documents and gave evidence. The report also stated that the defendant had been enjoying the possession of the plot since 1963 fenced same with concrete blocks, collecting rents without interference from anybody. It also decided that the present claimant seems not to know where his plot situates and that a plot of 100ft by 100ft was not allocated to anybody from that site. Both Counsel did not address or submit sufficiently or fulsomely on the legal implication of Exhibit “N”. Both parties submitted themselves to the arbitration by Plot Allotment Committee Ward 23/L, Egua-Iyoba Uselu quarters, Benin City….Exhibit “N” satisfies all the aforelisted or aforestated conditions. Indeed the entire case revolves around the relevance, cogency, validity, acceptability and applicability of Exhibit “N”. This case largely revolves in my view around Exhibit “N”. It is clear that defendant established her counter-claim on a balance of probabilities or preponderance of evidence…..Exhibit “N” tilts the imaginary scale in favor of the defendant/counter

– claimant….It is in the light of this fact that I hereby dismiss the claimant’s claim as unmeritorious, and I hereby uphold the defendant’s Counter-Claim.” See pages 152 – 155 of the Record of Appeal.

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.
In Ezukwu v. Ukachukwu (2000) 1 NWLR (pt 642) 657 @ p. 679 it was reiterated inter alia thus:
“A claimant of title to land, of course, need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root of title needs must be, firstly established before the exercise of the rights of ownership may be exercisable.”

I have taken a clam studied look at the averments in the pleadings of the parties as well reviewed the evidence, both oral and documentary as led by them and their witness as in the printed record. It is true that in law, the parties as well as the Court are bound by the pleadings. It does appear to me, from the pleadings of the parties, that Exhibits J and N were duly pleaded and copious evidence was led on them. In law, once pleadings are

supported by credible, cogent and un-contradicted pieces of evidence, such pleaded facts would be taken as proved and thereby duly established. See Atanda V. lliasu (2012) 1214 LRCN 229; Adekeye V. Adesina (2011) 191 LRCN 65.

Going by the avalanche of submissions by the parties, it would appear that the main thrust of this appeal is whether or not the Court below was right when it placed heavy reliance on Exhibit N in coming to its conclusion that as between the Appellant and the Respondent it was the Respondent, whose predecessor in title’s Oba’s approval as in Exhibit R3, was preferred as genuine, that made out her case by credible evidence to be entitled to a grant of declaration of title to the land in dispute than the Appellant’s whose Oba’s approval as in Exhibit D was found not to be genuine in Exhibit N and accepted by the Court below as such in finding against the Appellant in favor of the Respondent.

There is no denying the fact that there was a surfeit of pleadings on the customary arbitration between the parties in respect of the land in dispute, and which incidentally was initiated by the Appellant, perhaps

from the euphoria of and buoyed by the fact and reality of having won an earlier customary arbitration by the same set of arbitrators, the Plot Allotment Committee, against one of the purchasers of land from Chief Brai one in the chain of the predecessor in title to the Respondent.

Now, the arbitrators met and took evidence from the parties, including the respective Oba’s approval and after a careful consideration, being the very organ through which recommendations are made to the Oba for approval, had come to the findings that while Exhibit D relied upon by the Appellant as his root of title to the land in dispute did not originate from, when same ought to have originated from them to be genuine and valid, the Exhibit R3 relied upon as her root of title by the Respondent, indeed as required of the procedure from acquiring land from the Oba, originated from them and therefore, grounded a better title in the Respondent to the land in dispute than the Appellant.

The Court below faced with this seemingly all important decision of the customary arbitrators manned by those who should know, being the very people at whose recommendation for the

Oba’s approval can be obtained, had no difficulty relying on same to find for the Respondent against the Appellant over the title to the land in dispute.

It is the law that evidence once given in line with a party’s pleading, and if not successfully challenged, or where it remained un-contradicted and is relevant to the matter in controversy, a Court can rely on it and make his findings based on such evidence in his judgment. See Oseni V. Bajulu (2010) 178 LRCN 26; Alhaji AminuIshola V. Union Bank of Nigeria Limited (2005) 21 NSCQR 167. See also Alhaji AminuIshola V. Union Bank of Nigeria Limited (2005) 21 NSCQR 167.
I have had a second look at Exhibits N, in view of the importance and weight attached to it by the Court below in its judgment, and it does appear to me that it was not only duly pleaded by the Respondent but was very relevant to the issues in controversy between the parties. It is also very clearly in law admissible in evidence and in my finding was so properly admitted by the Court below.

Now, the pertinent question is this: was the Court below right when it relied on Exhibit N to find for the

Respondent on the title to the land in dispute against the Appellant? In other words does Exhibit N in law constitutes and satisfies the criteria for a valid customarily arbitration to be binding on the parties to this case as held by the Court below?

Under our law, – the Nigerian Law – it recognizes and accepts the validity and binding nature of arbitrations under customary law if the following factors are established, namely; that both parties submitted to the arbitration; that the parties accepted the terms of the arbitration; and that they agreed to be bound by the decision of the Arbitrators. In this vein, it is important to observe at once that in law a customary law arbitration decision has the same authority as the judgment of a judicial Tribunal and thus, will be binding on the parties and thereby create an estoppel.

However, whether such a decision will operate as estoppels per rem judicata or issue estoppels can only be decided where the terms of the decision are clearly known and ascertained and where and whenever they so operate both parties are entitle to invoke the plea of per rem judicata. It is therefore settled law

that where an arbitration under customary law is pronounced valid and binding it would be repugnant to good sense and equity to allow the losing party to reject or resile from the decision of the Arbitrators to which he had previously agreed and to be bound only if he had won the customary arbitration. In Ojibah V. Ojibah (1991) 4 LRCN 1215, the Supreme Court had stated inter alia thus:
“Where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to Customary Law and agreed expressly or by implication that the decision of the arbitration would be accepted as final and binding, then once the arbitrators reach a decision, it is no longer open to either party to subsequently back out of such a decision.”
Also in Oparaji V. Ogiedereji (1999) 70 LRCN 1822, where it was opined inter alia thus:
“Where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to customary law and agree expressly or by implication that the decision of such arbitration would be accepted as final and binding them once the arbitrators reach a decision, it would no longer be

open to either party to subsequently back out or resile from the decision so pronounced.”
My Lords, looking at Exhibit N in the light of the pleadings of the Respondent, and the feeble but unproved denial of the Appellant, who as a matter of fact as rightly found by the Court below initiated this customary arbitration as he did the one in Exhibit J, I find that the Court below was right when it held that both parties submitted themselves to the Plot Allotment Committee, as customary arbitrators, to resolve the issue of the ownership of the land in dispute between them. The Appellant, having therefore, submitted to the customary arbitration is and must be held to be bound by the result, the outcome of the arbitration as was rightly held by the Court below. The Respondent cannot be allowed to pick and choose which of the two arbitrations initiated by him that he should be bound with!
There is credible evidence on which the Court below found as fact, and quite rightly in my finding too, that both parties to the dispute over the ownership of the land in dispute voluntarily submitted their matter in controversy to the customary arbitrators and are ad

idem that the whatever the outcome, the resultant decision of the arbitration they would be accepted it as final and binding on them. That being so, in law once the arbitrators reach a decision, as in Exhibit N, it was no longer open to either party to subsequently back out of such a decision as the Appellant tried to do before the Court below and failed and now before this Court, where he once gain bound to fail.

It was vehemently, but very tenuously, contended for the Appellant that two weeks after Exhibit N was issued by the customary arbitrators, the matter was taken to the Court, after an earlier attempt to involve the Police in a purely land matter failed at the Police Station for lack of requisite mandate to dabble into such matters, was evidence of rejection of the verdict of the customary arbitration. I think nothing can be farther from the truth than this tenuous contention for the Appellant. Firstly, purely land matters are civil matters and having nothing to do with the Police. Secondly, a decision to go to Court, which is in exercise of the right of parties does not and cannot ipso facto amount to clear evidence of rejection of the verdict

of the customary arbitration, more so coming after a time lag of two months, within which time a person could have an afterthought and decide to embark on any new course of action.

In law, no person can stop the Appellant from going to Court to ventilate whatever perceived grievance but having gone to Court, and if there be any prior existing, valid and binding customary arbitration, then he must be prepared to face it squarely with it devastating result if proved on his claim by reason of the operation of the principle of per rem judicata. In my finding therefore, the Appellant was bound to accept the verdict of the arbitration initiated by his mother and was therefore, bound by the decision of the Plot Allotment Committee through which he claimed he got his Oba’s Approval and which body found that his Oba’s Approval as in Exhibit D does not emanate from their recommendation.

I now come to the issue of which as between Exhibit D of the Appellant and Exhibit R3 of the Respondent constitutes a better title over the land in dispute? The Court below had after a review of the pleadings and evidence of the parties, particularly considering the

findings on the status of Exhibits D and R3 in Exhibit N, preferred Exhibit R3 to Exhibit D and thereby finding title to the land in dispute in favor of the Respondent against the Appellant. I have taken time myself to look at these Exhibits D and R3, and considering the evidence on the procedure for obtaining the Oba’s approval in which the Plot Allotment Committee plays a vital role of recommendation to the Oba for his approval coupled with their findings in Exhibit N, and I am of the firm view, and I so hold, that as between Exhibit D and R3, it is the later than conferred a better title over the land in dispute on the Respondent through the chain of her predecessors in title than Exhibit D, which on both the fact and the law, conferred no title over the land in dispute on the Appellant.

It is even not in any dispute, as the parties are ad idem, that the Respondent has her building structure on the land in dispute to decking stage before the issues leading to the institution of the Suit before the Court below for declaration of title to the land in dispute on which stands the uncompleted building of the Respondent. In law, unless and until the

Appellant is able to prove and show better title to the land in dispute over and above the title of the Respondent, the law is in favor of the Respondent who is in admitted possession of the land in dispute. This is so because in law possession is the nine tenth of the law relating to ownership of land against everybody except the person with a better title to the land.

I think, and I so hold, that on the pleadings and evidence of the parties, it was indeed a very feeble thing to argue as did the Appellant that the identity of the land counter – claimed by the Respondent was not proved by her as required by law. This is the same land the Appellant himself had claim a declaration of title to and had alleged that the Respondent building was thereon under construction. At any rate, not only in my finding the finding by the Court below that the land in dispute was very known to both parties and was therefore, not in issue, correct, but in addition the Respondent through credible evidence established both the dimension, size, shape and features on the land she counter claimed and which was found in her favor by the Court below and

granted to her. It was the land the Appellant said he had, and now as found as fact without any color of right, used as his football pitch with his friends. He, just like the Respondent, no doubt knows the land in dispute very well. In law therefore, once the land in dispute is well known to both parties, the need for further identifying the land is not necessary since it is no in issue. See Dakolo V. Rewane – Dakolo (2011) 198 LRCN 1, where it was stated inter alia thus:
“In all cases of land, the first task is to identify the land or property in dispute. Where the identity of the land is in dispute, it is resolved by each side producing Survey Plans supported by credible evidence to satisfy the Court of the land or property in issue but where the land or property is very known to both sides, the need to do so longer arises.”
See also Ojibah V. Ojibah, (1991) 4 LRCN 1215; Auta V. Ibe (2003) 110 LRCN 1602.

My Lords, I am now left with the issue of whether Exhibits W and X were offensive to the Land Use Act 1978 and therefore, invalid in law as vehemently contended by the Appellant in this

appeal. I have taken a calm critical look at these two Exhibits, W and X, which are Deeds of transfer between the Respondent’s immediate predecessor in title and his own predecessor in title and as between the Respondent and her predecessor in title. The argument here is that having not obtained the prior consent of the Governor, these Deeds were invalid. I think, and I strongly believe I am right, that the law has moved far farther away from that position of the law as regard consent of the Governor to transactions affecting land.
The law now is that a holder of a Statutory Right of Occupancy is not prohibited from entering into written agreement such as Exhibits X and W before seeking the consent of the Governor. Thus, an agreement can be executed before being forwarded to the Governor for his consent, and such a procedure which has since become the new normal in land transactions in Nigeria, is valid and does not in any way offends the Land Use Act 1978, and is therefore valid in law and neither void nor invalid. See Sections 22 and 26 of the Land Use Act 1978. See also llori & Ors V. Ishola & Anor (2018) 278 LRCN 1, where it was held

inter alia as follows:
“It has been held by this Court that Section 22 (1) of the Land Use Act 1978 does not prohibit the holder of a Statutory Right of Occupancy from entering into some form of negotiation which may end with a written agreement for presentation to the Governor for his consent so long as such written agreement is understood and entered into “subject to the consent of the Governor”.”
See further Awojugbagbe Light Ind. V Chinukwe (1995) 4 NWLR (Pt. 390) 379 @ pp. 435 – 436

A lot of hot air by way of heavy weather was made against several of the Exhibits relied upon by the Respondent amounting to allegations of forgery by the Appellant. Regrettably, not an iota or shred of evidence was led in proof of these allegations which remain bare and unproved. I thought I should at this juncture in this judgment point it out at once that allegation of fraud is not a tea party, which one party merely alleges against the other party, and then folds his arms akimbo to see how the other party wriggles out of it. If he must succeed in his allegation of fraud, he must lead credible evidence in proof of such

allegations, which being criminal in nature must be proved beyond reasonable doubt as required by law. See Section 135 of the Evidence Act 2011. See also Nwobodo V. Onoh (1984) 1 SCNLR 1; Aigbadion V. The State (2000) 4 SC (Pt. 1) 1; Maune V. Abdul (2001) 4 NWLR (Pt. 702) 95; Agwasin V. Ejivumerwerhaye (2001) 9 NWLR (‘Pt. 716) 395; Olalomi Industries Ltd. V. NIDB (1992) 4 NWLR (Pt.233) 91@p.106.
Thus, an allegation of fraud even where contained in a pleading of a party, no matter how seemingly grave, unless its particulars are duly pleaded and credible evidence led in support to prove it beyond reasonable doubt as required by law, it is really of no moment and remains unproved and therefore goes to no issue. See Olufunmise v Falana (1990) 3 NWLR (‘Pt. 136) 1; See also Agbi V. Ogbeh (2006) 1 NWLR (Pt. 990) 65; Nwobodo V. Onoh (1984) 1 SCNLR 1; Nwanguma V Ikyaande (1992) 8 NWLR (Pt. 258) 192; Ndoma Egba V. ACB Plc. (2005) 14 NWLR (Pt. 944) 79; Olalomi Industries Ltd. V. N.I.D.B (2009) 16 NWLR (Pt. 1167 266; Omoboriowo V. Ajasin (1984) 1 SCNLR 108.

Having considered the totality of the pleadings and evidence, both oral and documentary as led

by the parties in proof of the facts as alleged by them, I find the decisions of the Court below on all the matters on which the parties had joined issues in their pleadings as correct. I therefore, have no reason, since none has been made out by the Appellants, to interfere with and disturb the correct findings of the Court below. We do not have the power in law to interfere with and disturb correct findings by a trial Court as that is certainly neither the duty nor business of an appellate Court. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….”
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.

In the light of all I have said and found as above, that the Court below was right in its findings and conclusions reached in dismissing all the reliefs claimed by the Appellant against the Respondent, while granting the reliefs counter – claimed by the Respondent against the Appellant, I hereby resolve issues one, two and three for determination in favor of the Respondent against the Appellant.

My Lords, having resolved all the three issues for determination in this appeal, I thought I should just say a word or two in passing on what ought not to be found in an Appellate brief, which regrettably I found in the Appellant’s brief, perhaps due to the fact that the Appellant conducted this appeal in person and had allowed his emotions to get the better of him when he had stated inter alia as follows in his Appellant’s brief:
“The learned trial Judge did everything to manipulate the record of proceedings to favour the Defendant and DW1. His Lordship never mentioned Exhibit M. He omitted lots of questions and answers to favour DW1… His lordship merely turned a blind eye on the record of proceedings in regards to DW1 under cross-

examination….Exhibit M is completely absent from the Court’s record and the judgment of his Lordship which occasioned miscarriage of Justice….If the learned trial judge needed proof that the result of his own judgment was openly announced in a Church services as haven been decided in favour of the Defendant/Respondent a month before it was delivered in open Court on 17/1/2014, he should call Rev. Izemwingie on 08032774869 of No. 10 – 12 1st Federal Road, Off Okhoro/Akugbe Road Benin City, Christ the Living World Bible Church.”

My Lords, the Appellate brief is neither the proper forum for Petition writing nor the dissemination of rumors or for the propagation of venom and denigration of the person of a trial judge, who indeed and regrettably does not even a right of reply thereto, and to bring the administration of justice into ridicule. The above passages were very unnecessary and indeed most distasteful, disdainful and ought to have been avoided and should be avoided in the future. Indeed, in terms of real value it brought nothing worth anything to the table of discussions in the resolution one way or the other of any or all of the

three issues for determination in this appeal. I shall say no more but simply to observe that ‘a word’ it is often said ‘is enough for the wise’ and prudent practitioners of the most noble of professions – the legal profession!

On the whole therefore, having resolved all the three issues for determination in this appeal in favor of the Respondent against the Appellant, I hold firmly that the appeal is bereft of merit and is thus liable to be dismissed. I hereby so dismiss it.

In the result, the judgment of the High Court of Edo State, Coram: A. N. Erhabor J., in Suit No. B/369/97: Madam Eunice Enabuele V. Madam Enaruna Igbinobaro, delivered on 17/1/2014, wherein the Claims of the Appellant as Claimant against the Respondent as Defendant were dismissed, while the Counter – Claims of the Respondent were granted against the Appellant, is hereby affirmed.
There shall be cost of N200, 000. 00 against the Appellant in favor of the Respondent.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother, BIOBELE ABRAHAM GEORGEWILL,

JCA. I agree that the appeal is devoid of any merit and I also dismiss it.

My learned brother has articulated comprehensive reasons for dismissing this appeal. I do not have anything to add to the reasoning and conclusions. My brief comment here is merely to emphasize one salient point made in the leading judgment.

Judges, it has long been recognized and accepted, are human beings and that “the most able judges are liable to err” —– per Lord Kenyon C.J., in Cotton v. Thurland (1793) 5. T.R. 409. The Supreme Court, in Odofin v. Oni (2001) 3 NWLR (Pt. 701) 488 at 501, stated that:
“The Courts are presided over by human beings and being human, they are prone to mistakes and slips in the course of execution of their judicial functions.”
Irrespective of the perception a litigant or learned counsel has about the judgment of a Court and/or alleged errors therein, there should be restraint in the use of words —- there is need to use decent words and language for the Judge who delivered the judgment complained of. See Menakaya v. Menakaya (1996) 9 NWLR (Pt. 472) 256 at 319 – 320, per Ejiwunmi, JCA (as he then was, later JSC) where this

Court held, inter alia, as follows:
“Court of law in any civilized jurisprudence operating the adversarial system such as ours are used to some traditional appellate language to the following effect:
“The learned trial judge erred in law. The learned trial judge misconceived the law. The learned trial judge misdirected himself on the law. The learned trial judge misdirected himself on the fact.”
To throw away the above decent language and resort to unpalatable language is serious……..”
See also Global Transport Oceanico S. A. v. Free Enterprises Nigeria Ltd (2001) 2 SCNJ 224.
In this case, the statement in the appellant’s brief that:
“The learned trial Judge did everything to manipulate the record of proceedings in favour of the Defendant and DW1”, is very uncharitable as it is unfortunate. The learned trial Judge, who is not a party to this appeal and who was not served with the processes herein, including the appellant’s brief, has no opportunity to rebut the said allegation or reply thereto.
The theory and practice of law, have over the ages, bestowed a very height degree of honour and respect that

counsel should refrain from bringing down a learned Judge from his height of honour and “rub him with muck” on the ground that a judgment is not favourable to him or his client and he is dissatisfied with it. See Abeke v. State (2007) All FWLR (pt. 366) 644 at 662, per Niki Tobi, JSC.
On the other hand, it is recognized that that Judges cannot perform miracles in the handling of cases —— Elias v. Omo-Bare (1982) NSCC 92 at 100, per Udo Udoma, JSC. However, a judge should be an impartial umpire throughout the proceedings before him. See Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 142, per Nnaemeka-Agu, JSC.
It should be noted also, that as a matter of mutual respect, Judges and/or Courts have a corresponding duty to use decent words for learned counsel and litigants in their Judgments and accord them their due respect in Court. See Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203 at 252.

I abide by all orders made in the leading judgment, including the order as to costs.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read, in the draft, the lead judgment just delivered by my learned brother, the Honourable

Justice BIOBELE ABRAHAM GEORGEWILL, JCA, I agree that the appeal lacks and liable to be dismissed. I too dismiss it.

Judgment of the lower Court which dismissed the claim of the Appellant and granted the counter-claim of the Respondent is also affirmed by me too.
I abide with the consequential orders as to costs therein.
Appeal is dismissed.

Appearances:

Smart O. Agbonlahor Esq. For Appellant(s)

N. Owakwue Esq. For Respondent(s)