AKPOAISI & ORS v. MOWOE & ANOR (2020)

AKPOAISI & ORS v. MOWOE & ANOR

(2020)LCN/14695(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, October 14, 2020

CA/AS/84/2016

RATIO

COURT: BINDINGNESS OF RECORDS ON COURT

it is pertinent, that I state from the premise that, a Court and parties are bound by its records and these must be used in resolving the issues before it. See MURITALA OLADAPO v THE STATE (2020) LPELR – 50553 (SC), where the Supreme Court held;
“…Thus, a Court is entitled to look into any document in its record and make use of it in order to arrive at a just decision. ….and make use of any document it considers relevant in determining issues before it…”
per ABBA AJI, JSC (PP. 10 – 12, PARAS. F – A).
See also; PDP & ORS v EZEONWUKA & ORS (2017) LPELR – 42563 (SC); AKEREDOLU v ABRAHAM & ORS (2018) LPELR – 44067 (SC); EROMOSELE v FRN (2018) LPELR – 43851 (SC). PER OBASEKI-ADEJUMO, J.C.A.

LAND LAW: WAYS OF PROVING OWNERSHIP OF LAND

It is a trite principle of law that there are five (5) accepted ways of proving ownership;
“… 1. By traditional evidence. 2. By production of documents of title. 3. By proving acts of ownership numerous and positive enough to warrant an inference that the person is the true owner (such as selling, renting out or farming on all or part of the land). 4. By proving acts of long possession and enjoyment of the land under Section 145. 5. By proof of possession of connected or adjacent land (the contiguity rule).”
See; MRS. OLUWASEUN AGBOOLA v UNITED BANK FOR AFRICA PLC & 2 ORS (2011) LPELR – 9353 (SC); MICHEAL ODUNZE & ORS v NWOSU NWOSU & ORS (2007) LPELR – 2252 (SC); FRANCIS ADESINA AYANWALE v OLUMUYIWA OLUMIDE ODUSAMI (2011) LPELR – 8143 (SC). PER OBASEKI-ADEJUMO, J.C.A.

PRIVY: MEANING OF PRIVY

In EDWIN IKHINMWIN & ANOR v PRINCE FRIDAY ELEMA & ORS (2014) LPELR – 23322 (CA), the Court held;
“The meaning of privy has been defined. A privy is defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property. See Agbogunleri V Depo & Ors (2008) LPELR – 243 (SC). The Plaintiff/Respondent having stated that Sani Abbas Abubakar is a shareholder in the Plaintiff/Respondent can properly be said to be a privy of the Plaintiff/Respondent. Facts admitted need no proof – See Offor & Anor V State (2012) LPELR-19658 (SC).”
per ABUNDAGA, J.C.A (P. 10, PARAS. A – D) PER OBASEKI-ADEJUMO, J.C.A.

WORDS AND PHRASES: MEANING OF DURESS

Duress means threats, violence forcible constrain or other action used to coerce someone into doing something against their will or better judgment.
Black’s Law Dictionary puts it as any unlawful threat or coercion used to induce another to act in a manner they otherwise would not. See also; OILSERV LIMITED v L. A. IBEANU & COMPANY NIGERIA LIMITED & ANOR (2007) LPELR – 5149 (CA); CALABAR CENTRAL CO – OPERATIVE THRIFT & CREDIT SOCIETY & ORS v EKPO (2001) (CA). PER OBASEKI-ADEJUMO, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

TUTU AKPOAISI 2. UFUOMA AKPOAISI 3. FREDERICK OMATIE AKPOAISI (FOR THEMSELVES AND ON BEHALF OF MEMBERS OF AKPOAISI FAMILY) 4. CHIEF IDJOGBE APPELANT(S)

And

JOSEPH MOWOE 2. MR. ALFRED MOWOE (FOR THEMSELVES AND ON BEHALF OF CHIEF MUKORO MOWOE FAMILY) RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Delta State High Court, Sapele division per Hon. Justice G. E. GBEMRE dated 26th February, 2015, wherein the lower Court delivered judgment in favour of the Respondents.

A brevity of the facts as culled from the record before the Court; is that the Respondents (who were the Claimants at the lower Court) claimed that their father – Chief Mukoro Mowoe purchased a large expanse of land from various families/individuals (including the father of the Appellants) who were from Amukpe Community in Sapele Local Government Area of Delta State. The land in dispute being part of the purchased land. That the Appellants and their agents unlawfully broke into and entered part of the acquired land without the Respondents’ consent, and when the Appellants’ acts of trespass remained unabated, the Respondents who were plaintiffs filed a suit against the Appellants. The lower Court granting three reliefs, entered judgment in favour of the Respondents.

Dissatisfied with the decision, the Appellants

filed their Amended Notice of appeal containing 8 (Eight) grounds of appeal on 16th November, 2017, brief of argument on 23rd November, 2017 and reply filed on 26th February, 2020 but deemed 17th March, 2020, both were settled by G. E. Oaikhena, Esq of G. E Oaikhena & Co, wherein the four issues were formulated for determination;
1. Whether the claimants led evidence supported with documents to support their claim before the Judge who gave judgment in their favour.
2. Whether the claim of the respondents was not statute – barred having regard to the provisions of Statute of Limitation of Delta State 2006 and the doctrine of laches and acquisance(sic).
3. Whether the trial judge was right to rely on Survey Plan that were made by persons who were not part of the earlier contract after the original parties have died without the knowledge of the Appellants whom their predecessor were alleged to be parties to the earlier contract.
4. Whether the trial Judge was entitled to grant an injunction against the Appellants when there was evidence before the Court that the appellants were living within the area of dispute from time

immemorial.

The Respondents in response also filed their brief of argument on the 5th October, 2018. The brief was settled by F. I. Agboroh, Esq. of F. I. Agboroh & Co, wherein four issues were also distilled;
i. Whether from the evidence (both oral and documentary) the Respondents have proved that they are entitled to ownership of the piece or parcel of land verged PINK in the litigation plan (Exhibit C)
ii. Whether the Respondents’ claim was statue – barred having regard to the provision of Statute of limitation Laws of Delta State, 2006 and the doctrine of laches and acquisance (sic).
iii. Whether the Learned Trial Judge was right to rely on the Survey Plans tendered by the Respondents.
iv. Whether the Learned Trial Judge was entitled to grant an injunction against the Appellants.

APPELLANTS’ SUBMISSIONS
The Appellants submit on issue one that from the state of the pleadings, evidence led, documents tendered and the evidence at cross-examination of the Claimants and their witnesses, the Respondents did not lead cogent evidence to establish their claim for the judge to give them judgment.

Citing SALAMI & ANOR v LAWAL (2008) VOL. 161 LRCN AT PAGE 4 RATIO 4, the Appellants submitted that the lower Court was wrong in holding that the Respondents have proved their title to the land by act of ownership, by production of authenticated title documents and proofs of ownership by act of long possession and enjoyment in respect of the land in dispute.

That there was no document shown to the Court by the Respondents of which their father acquired the land from the Appellant’s predecessors in 1937 – 1939. That the judgment of Suit No. 14/39 of 1939 was not tendered in the Court, failure to tender the judgment was fatal to the case of the Respondents. The Appellants further cited Section 102 (a); Section 90 (i) (c) of the Evidence Act 2011 and PELEA OJOH v OWUALA KAMALU & 3 ORS (2006) VOL. 136 LRCN PAGE 1130 RATIO 25 & 26 AT 1144; MR. MOSES BUNGE & ANOR v THE GOVERNOR OF RIVERS STATE & 5 ORS (2006) VOL. 141 LRCN 2227 RT 8, 11; AKINBISADE v THE STATE (2006) VOL. 141, PAGE 2194 RATIO 1 & 4.

The Appellants contend the reliance of the Court placed on the conveyance of 1974, which was made thirty – five (35) years

after the alleged transaction between the Respondents’ father and the Appellants’ predecessors. The Appellants repudiated the document on the ground of duress twenty-four hours after it was made through their solicitors. They further posed four questions; 1) why did the Respondents decided to pay again for the same land they said they possessed? 2) Why was the agreement signed in their residential house? 3) Can a document have a retrospective effect? 4) What is the effect of duress in procuring an agreement or document?

Appellants submitted in addition that the holding of the trial judge on the effect of a contract procured by duress which is illegal in law was highly erroneous. That the Appellants having repudiated the illegal contract timeously through their solicitor, and that the said conveyance has no legal effect from them onwards. CORPORATE IDEAL INSURANCE LTD v AJAO-KUTA STEEL COMPANY LTD (2014) VOL. 235, PAGE 180 was cited in submitting that there was no valid legal documents by which the Respondents proved their ownership of the land nor was any evidence led on ownership as there was evidence that the Appellants been living in the

area and also that there was a street named after the 1st Respondent.

On Issue 2, the Appellants submitted that whatever action the Respondents led, if any, commenced in 1995 and the action was filed nine years after the Appellants have erected structures on their land without any disturbance. That Section 18 of the Limitation Laws of Delta State, 2006 prescribes a minimum of five (5) years within which to seek redress.

Appellants further contend that the Respondents are cut by the equitable defence of Laches and Acquiescence, and the Respondents cannot be encouraged to benefit from their indolence, as they stood by consciously and waited for the Appellants to develop the land in dispute after 9 years with a view that after winning the case, they will take over the developed structures put there by the Appellants. RUFUS ISAAC v JOHN ODIGIE IMASEUN (2016) VOL. 258 LRCN PAGE 217 RATIO 6; GODWIN NSIEGBE, SILOS NSIEGBE v OBINNA MGBEMERA AND OBIORA MGBEMENA (2007) VOL 152 LRCN PAGE 82, RATIO 1 AT PAGE 85; MILITARY ADMINISTRATION (EKITI STATE) AND 6 ORS v PRINCE BENJAMIN ADENIYI ALADEYELU AND 3 ORS (2007) LRCN PAGE 949 RATIO 2 AND 3; EGBE v ADEFARASIN (1987) 1 NMLR PT 47 P1 were cited in aid.

The Appellants on issue 3, submit that the survey of 1965 was not based on any document of purchase and it was not carried out by the Appellants and Respondents’ representatives jointly after the death of their respective predecessors to ascertain the exact area that was sold. Instead the survey was carried out by a surveyor who could not complete it but was later perfected by another Surveyor. That the mere production of a survey plan, cannot be used to prove title to land without a purchase agreement or a memorandum of sale.

Appellants further submitted that Exhibit F which is the judgment of 1984 was not between the Appellants and the Respondents, therefore, the Appellants cannot be bound by it. That the said judgment relates to the rubber plantation which was sold to the Respondents’ father which is different from the entire land in dispute in this case.
AKAYEKPE & ANOR v AKAYEKPE (2009) VOL. 175 LRCN PG 199 RATIO 5; DIM V ENEMO (2009) VOL. 172 LRCN PG. 235 RATIOS 7 AND 8

Appellants contend that the granting of perpetual injunction against the Appellants not to enter their residential

homes, with the street even named after the Appellants was erroneous in law and cited in aid the case of ANYANWU v UZOWUAKA (2009) VOL. 177 PG 562 RATIO 15.

RESPONDENTS’ SUBMISSIONS
It is the submission of the Respondents in issue 1 that the Respondents in their statement of claim, paragraphs 5, 6, 7, 8, 10 (a) and (b) clearly stated and showed how their father acquired a large expanse of land in Okuofuoma village, Okirighwre, Amukpe from various families and individuals, and how they have been in peaceful possession of same.

That they have also shown how some persons have unsuccessfully challenged their title to the land in Exhibit F, a copy of the judgment how they have exercised ownership acts over their large expanse of land, in paragraph 11a & 11b of the claim, part of which is in dispute; UDENZE & ORS v NWOSU & ORS (2008) 154 LRCN PAGE 110 AT 160 PARAGRAPHS UEE (RATIO 15); MBANI v BOSI & ORS (2006) 141 LRCN PAGE 2317 AT PAGES 2327 PARAGRAPH EE and 2328 PARAGRAPH AK (RATIO 2) were cited in aid.

The Respondents relied on OLAGUNJU v ADESOYE & ANOR (2009) 170 LRCN PAGE 1 AT PAGES 38 – 39 that the

Respondents through the evidence of PW1, PW2, PW3, the 2nd Respondent and Exhibits A, B, C, D, E, F and G have established four (4) out of five (5) methods of proving title to the land.

The Respondents contends that the Appellants argued wrongly when they stated that the judgment of Suit No: 14/39 of 1939 was not tendered in Court and submit that the judgment in Suit No: 14/39 of 1939 was copiously and extensively referred to in Exhibit “F”, a subsisting judgment of the High Court of Delta State delivered on 22nd November, 1985, therefore failure to tender the judgment of Suit No: 14/39 was not fatal.

WILLIAMS & ORS v AKINWUNMI & ORS (1966) ANLR PAGE 105 AT 106 (RATIO 2), was relied on in submitting that Exhibit E clearly showed the estate of late Chief Mukoro Mowoe, belonged to the father of the Respondents.

ABOYEJI v LATEJU (2012) ALL FWLR PART 648 PAGE 961 AT 977, PARAGRAPHS D – F (RATIO 6); OYEBAMIJI v LAWANSON (2008) ALL FWLR (PART 438) PAGE 236 AT 251 PARAGRAPH C were relied on to submit that Exhibit G (registered deed dated 23rd May, 1974) are quite clear and unequivocal in vesting the Respondents’ land.

That a combined effect of reading of Sections 152 & 162 of the Evidence Act, implies there is a presumption of genuineness in favour of a document which is 20 years old. Exhibit E is 49 years old while Exhibit G is 40 years and urges the Court to presume same.

The Respondents contend that Exhibit F is a judgment of the trial Court given on 22nd November, 1985, and was based on a representative suit brought by the Amukpe Community, Sapele against the family of the Respondents. That there is no appeal from any quarters against the judgment and same is therefore valid and subsisting. Sections 147 and 173 of the Evidence Act, 2011 are on this point.

Respondents further submitted that the Appellants never denied the averments made in paragraph 11 (a) of the operative statement of claim; NBA v FOBUR (2006) ALL FWLR PART 333, PAGE 1739 PP AT 175 PARAGRAPHS D – E (RATIO 1); MBANEFO v MOLOKWU (2010) ALL FWLR PART 512 PAGE 1159 AT 1173 PARAGRAPHS D – E (RATIO 3) was cited in aid.

Respondent submits that by virtue of Section 169 of the Evidence Act, 2011 the Appellants are bound by the decision contained in Exhibit F.

ODUMOSU v OLUWOLE (2004) FWLR PART 191, PAGE 1628 AT 1652 PARAGRAPHS G – H (RATIO 9) was cited in the respect of the Appellants’ allegation of duress, the Respondents contend that the evidence adduced at trial of how the Defendants executed Exhibits “G” was clearly contradicting and urged the Court to discountenance the evidence of the alleged duress or inducement; UNIPETROL (NIG) PLC v ADIREJE (W/A) LTD (2004) ALL FWLR PART 231 PAGE 1238 AT 1277 PARAGRAPH E (RATIO 2).

The Respondents submit that they clearly denied the receipt of Exhibit J and thus joined issues with the Appellants, and therefore the onus rested on the Appellants to show how Exhibit J was served; NLEWEDIM v UDUMA (1995) 6 NWLR (PART 402) PAGE 383 AT 394, PARA B (RATIO 7); OKAFOR v AFRICAN PETROLEUM NIGERIA LTD (1996) NWLR PART 451, PG 674 AT PAGES 690 PARA A – E; OKAFOR v AP NIG LTD (SUPRA).

It is the further submission of the Respondents that the Appellants did not deem the allegation of duress with the “assistance of some fierce looking thugs” serious enough to report the activities of the Respondents and their thugs to the Law Enforcement Agents.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ABIODUN ADELAJA v OLATUNDE FANOIKI & ANOR (1990) ALL NLR PAGE 217 AT 320 (RATIO 3); ONAGORUWA v AKINREMI (2001) 88 LRCN PAGE 2179 AT 2189 PARA AB (RATIO 4); OYEBAMIJI v LAWANSON (SUPRA) were cited in submitting that Exhibit G is a certified copy of a registered deed of conveyance, thus a proof of due execution.

The Respondents contend that Exhibits D, E, F and G were tendered and admitted as Exhibits without objection from the Appellants and thus this Honourable Court can rely on them in deciding the matter; ADAMU v TAKORI (2010) ALL FWLR PART 540 PAGE 1387 AT 1403 PARAS F – A (RATIO 2).

On issue 2, the Respondents submit that the lower Court reference to Section 18 of the Limitation Law Cap L11 Laws of Delta State, 2006 was in relation to the claim for special damages and not the entire claim of the Respondents. That Section 18 of the Limitation Law Cap L11 Laws of Delta State, 2006 deals with time limit for actions founded on contract, tort or any other action not provided for in the parts II and III of the law, while the action of the Respondents was brought mainly to recover land and in line with

Section 3 of the Limitation Law Cap L11 Laws of Delta State, 2006 which provides for time limit for actions to recover land.

Respondents further submit that the issue of statute of Limitation was not raised in the Appellants’ statement of Defence and same cannot avail the Appellants at this stage. OKITO v OBIORU (2007) ALL FWLR PART 365 PAGE 568 AT 580, PARAGRAPHS F – G; KETU & ANOR v ONIKORO & ORS (1984) 10 SC 265.

The Respondents contend that in paragraph 14 and 15 of the Further – Further Amended statement of claim averred that the Appellants unlawfully entered the land and still remain in the land till date, therefore making their action an act of continuous trespass and the Limitation law inapplicable; OBUEKE v NNAMCHI (2006) ALL FWLR PART 313 PAGE 195 AT PAGES 204 & 207 was cited in aid.

The Respondents in issue 3 submits that the Appellants never cross examined PW3 on the validity or otherwise of the Survey plans tendered by PW3, which were also tendered without any objections from the Appellants.
DAGGASH v BULAMA (2004) ALL FWLR PART 212 PAGE 1666 AT 1745 PARAS F – G; ALIYU v SODIPO (1994) 17 LRCN PAGE 1 AT PAGE 24 PARAS 35 –

40, Section 3 (b) of the Survey Law Cap S13 Laws of Delta State, 2006 were cited by the Respondents in submitting that the requirements for tendering a survey plan is not based on any document of purchase nor whether it was carried out by the parties but whether Section 3 of the Survey Law has been compiled with, and is admissible in law.

It is the submission of the Respondents on issue 4 that the area over which the trial Court granted the Order of perpetual injunction is very certain and clearly graphically shown in Exhibit C. That Exhibit C did not show the alleged houses of the Appellants and the evidence of the 2nd Appellant clearly showed that the area of land given by the Respondents’ father to Akpoaisi is outside the land in dispute.

ANYANWU v UZOWUAKA (SUPRA); OMOTAYO v COOPERATIVE SUPPLY ASSOCIATION (2011) VOL. 202 LRCN PAGE 134 AT 169 PARA 2 was cited in submitting that the trial Court duly determined the rights of the parties was right to have granted the Order of perpetual injunction.

APPELLANTS’ REPLY
The Appellants in response to the submissions of the Respondents on issue 1, urge the Court to invoke

Section 167 (d) of the Evidence Act, 2011 and submit that were a party on a document as his root of title and pleads same to be relied upon at the hearing, the failure to produce such document to authenticate his claim is fatal to the claim of the party. ATTORNEY GENERAL, ADAMAWA STATE AND 2 ORS v MR. JONAH JAURO WARE & 2 ORS (2006) VOL. 136 LRCN PAGE 1202, AT 1205 RATIO 4; TEWOGBADE v AKANDE (1968) NMLR 404 AT 408
Appellants further submit that when a document is pleaded by a party who relies on it as the root of title and had it in his custody, he has a duty to produce it in Court. He contended that the Court has no right to use such a document when it was not produced in Court and admitted, he cited;GENERAL SANI ABACHA & 3 ORS v CHIEF GANI FAWEHINMI (2000) 2 SCNQR PAGE 489 AT 500 RATIO 21; ANAMBRA STATE v A. G FEDERAL REPUBLIC OF NIGERIA AND 35 ORS (2005) VOL. 131 LRCN PAGE 2357 AT 2369 RATIOS 19, 21 & 23.

Appellants urge the Court to hold that the lower Court was wrong when she relied on the 1939 judgment in arriving in its judgment over the land in dispute merely because it was referred to in another document.

That the Respondents placed reliance on Exhibit G which was obtained by duress when the Appellants were invited by the Respondents’ predecessors in their residence in Warri and was made to sign the deed under duress.

They further contended against the Respondents’ submission that the visit of the Appellants’ predecessor from Sapele to Warri on the invitation of the Respondents’ predecessor in title was conclusive evidence that “Exhibit G” was genuinely procured as long as it was registered, that the mere visit of the Appellants’ predecessor in title to Warri to see the Respondents’ predecessors in title to resolve the lingering issues where they were compelled to sign “Exhibit G” does not confer validity on the said document in the face of Exhibit J and the evidence of the lawyer who prepared it.

On issue 2, the Appellants in reply contend that the conducts of the Respondents for over thirty years of the knowledge of the earth road constructed on the land by the Respondents amounts to laches and acquiescence which are equitable doctrines that can deprive the Respondents right to claim.

That Section 3 of the Limitation Laws of Delta State cannot aid the case of the Respondents, that the case of the Respondents was stalled in law and no longer maintainable as the Appellants pleaded those facts in paragraphs 5 (g) and 13 of their amended statement of defence to invoke the effects of the doctrine of laches and acquiescence.

Appellants submits in response to the Respondents arguments on issue 3, that mere survey plans of the land without document of title or purchase cannot confer title to the land. That a survey plan can be admitted for the purpose of admission but not to prove title to land.

On issue 4, Appellants submit that the absence of establishing a valid title to the land in dispute, the interlocutory injunction granted ought not to be made.

RESOLUTION.
Having read the issues of both sides/parties, it is observed that they are similar save for slight modifications and semantics, I shall adopt the Respondents’ issues which aptly captures the issues as couched by the Appellants.

I have critically gone through the submissions of the parties and cited authorities, it is pertinent, that I state from the premise that, a Court

and parties are bound by its records and these must be used in resolving the issues before it. See MURITALA OLADAPO v THE STATE (2020) LPELR – 50553 (SC), where the Supreme Court held;
“…Thus, a Court is entitled to look into any document in its record and make use of it in order to arrive at a just decision. ….and make use of any document it considers relevant in determining issues before it…”
per ABBA AJI, JSC (PP. 10 – 12, PARAS. F – A).
See also; PDP & ORS v EZEONWUKA & ORS (2017) LPELR – 42563 (SC); AKEREDOLU v ABRAHAM & ORS (2018) LPELR – 44067 (SC); EROMOSELE v FRN (2018) LPELR – 43851 (SC).

The bone of contention in issue 1 is whether from the evidence (both oral and documentary) the Respondents/Plaintiffs are entitled to a certificate of occupancy over that piece or parcel of land lying and being and situate at Okufuoma village, Okirighwre, Amukpe, Sapele?

It is a trite principle of law that there are five (5) accepted ways of proving ownership;
“… 1. By traditional evidence. 2. By production of documents of title. 3. By proving

acts of ownership numerous and positive enough to warrant an inference that the person is the true owner (such as selling, renting out or farming on all or part of the land). 4. By proving acts of long possession and enjoyment of the land under Section 145. 5. By proof of possession of connected or adjacent land (the contiguity rule).”
See; MRS. OLUWASEUN AGBOOLA v UNITED BANK FOR AFRICA PLC & 2 ORS (2011) LPELR – 9353 (SC); MICHEAL ODUNZE & ORS v NWOSU NWOSU & ORS (2007) LPELR – 2252 (SC); FRANCIS ADESINA AYANWALE v OLUMUYIWA OLUMIDE ODUSAMI (2011) LPELR – 8143 (SC).

The Respondents/Plaintiffs in their Further – Further Amended statement of claim averred thus;
“4. The land subject matter of this suit is part of the entire Chief Mowoe Estate and is lying and situate at Okuofuoma Village, Okirighwre, along Sapele/Warri Road, Sapele within the jurisdiction of this Honourable Court.
5. Between 1938 and 1944, Plaintiffs’ great and illustrious father, Chief Mukoro Mowoe purchased the land, part of which is now in dispute from various families/individuals including Lesimone Akpaisi (also spelt

Nesimone Akpoisi or Akpoesi) Jerison Esiri, Eshandu Atu, Mabiyaku Ejikolemu also spelt as Mabioku, Jessa, Asuosu Ojijirage and Alte Abosa Substantial part of Chief Mukoro Mowoe Estate was purchased from Lesimone. Plaintiffs further aver that when Chief Mukoro Mowoe bought forever each of the component parts of the piece or parcel of land, which is the subject matter of this action, only small fraction of the land had cash crops. It was Chief Mukoro Mowoe after he had purchased the fee simple interest and/or its equivalent under Customary law in and over the land subject matter of this action, hired labourers and workers under the headship of late Mr. Arunama who planted cash crops especially rubber, pineapples, oranges, bananas, plantain and cassava. The Plaintiffs shall at the trial rely on all relevant documents of purchase.
6. Plaintiffs aver that ownership of the land, part of which is now in dispute, devolves on them after the death in August, 1948 of their father Chief Mukoro Mowoe.
7. Plaintiffs aver that their ownership of the land in dispute has been confirmed in a number of decided cases including Suit No. 14/39 which was instituted by one

Ojo (M) on behalf of Amukpe Community against Lesimone Akpaisi wherein the Plaintiff in that suit contended that the said Lesimone (the Defendant in that case) has no right/power to sell Amukpe land to Chief Mukoro Mowoe because the said land was owned by Amukpe Community as a whole. The case was decided in favour of Lesimone Akpaisi the then Defendant in that suit. The land in that case, comprise a substantial part of the piece/parcel of land in this suit which is verged PINK in Plaintiffs plan No. DDNL/DT/029B/05 dated 6/2/2005.
8. Plaintiffs’ ownership of the land in dispute was further challenged by Amukpe Community in Suit No. S/40/84: GEORGE ERUTE & ORS (for themselves and on behalf of the Amukpe Community) Vs DR. M. E. MOWOE & ANOR (for themselves and on behalf of Mowoe family), the claim of the Amukpe Community was dismissed with Five hundred Naira (N500.00) cost in favour of the Plaintiffs herein who were Defendants in the said suit.
9. Plaintiffs may at the trial rely on the judgment/record of proceedings in the said Suit No. 14/39 and the Suit No. S/40/84. No appeal was lodged by the Plaintiffs herein against the decision

dismissing their claims in both suits.
10. Plaintiffs aver that the land, part of which is now in dispute, is verged PINK in Survey Plan No. KP 2235 dated 7th November, 1984 prepared by licensed surveyor T. K. KPEJI and filed in the said Suit No. S/40/84 by the Amukpe Community. Plaintiffs may rely on the said Survey Plan No. KP 2235 to the extent only that the land indicated therein as verged PINK and having an area of 45. 212 hectares is owned by the Plaintiffs and has been the property of Plaintiffs’ great and illustrious father Chief Mukoro Mowoe since 1938 to the full knowledge of all including the Defendants herein.
a. The Plaintiffs aver that after the death of their father, representatives of late Chief Mukuro Mowoe and the representatives of the Akpoisi family on behalf of their respective families entered into an agreement in 1974 to ratify and confirm the transaction entered into by their predecessors in title. The Plaintiffs were requested to pay various sum of money to different branches of the Akpoesi family on behalf of their respective families entered into an agreement in 1974 to ratify and confirm the transaction entered into

by their predecessors in title. The Plaintiffs were requested to pay various sum of money to different branches of the Akpoesi family.
b. After the payment of the various sum of money by the Plaintiffs to different branches of Akpoesi family, a Deed of Conveyance dated 1974 was prepared and executed by the parties on behalf of their respective predecessors. The Deed was registered as No. 3/3/234 of the Lands Registry then in Benin City now in Asaba, Delta State. The Plaintiffs shall at the trial rely on the said instrument.”
See pages 418 – 419 of the Record.

PW1, one Ishola Ebison, a trader identified the Respondents as his land lords; he bought parcel of land 1783.329sq meters in 1978 and PW2, one Dr. Vincent kariks Ekariko, the group personnel manager of Peemo Nig Ltd gave evidence on subpoena (statement on oath) and in open Court to the effect that they acquired lands from the Respondents 200ft x 200ft in 1998 and have been in quiet possession of the lands for an impressive number of years, and tendered Exhibit A & Exhibit B (receipts of their purchase). Their evidence were unchallenged and are deem to be true. See pages 103

– 105 & 468 – 470 of the Record.

The Respondents further tendered Exhibit F (Judgment of Suit 40/48) and Exhibit G (Deed of Conveyance made 23rd May, 1974).

The Appellants have contended heavily that the lower Court relied on the judgment in Suit No 14/39/1939, and the Respondents did not tender same at the lower Court.

However, Exhibit F which is the judgment in Suit No. S/40/84, between; 1. George Erute 2. Godwin Iboyi Okpako 3. Ifodo Okokporo (for themselves and on behalf of Amukpe community Sapele) and 1. Dr. Moses E. Mowoe 2. Frank Mowoe (For themselves and on behalf of Chief Mukoro Mowoe Family) delivered on 22nd November 1985 by T. K. Dugbo, J of the Sapele Judicial division of the High Court of Bendel state.

Wherein the lower Court in paragraph 10, page 23 of the judgment and page 145 of the record held thus;
“10. On a thorough and meticulour(sic) examination of Exhibit ‘c’ the following facts emerge: –
(a) The parties to the suit were set out as
“Ojo (m) on behalf of Amukpe Plaintiff
Versus
Lesimone (m) of Defendant”
From the above the capacity of

the Plaintiff as representing the Amukpe Community can no longer be doubted.
…What then were the issues involved in the suit? On a further examination of Exhibit ‘C’, the issues were that the Plaintiffs contended that Amukpe land is communal land, as such, the Defendant had no right to sell any portion of the land without the consent of the community. While the Defendant admitted absolute and alienable right over the portion they occupy. The Defendants’ testimony as recorded against him under “Claim admitted” in page 1 of the proceedings states as follows: –
“The land in dispute belong to my late father Akposi and I am the rightful person to sell the piece of the land with my rubber trees on it.
…After the hearing of the evidence of the parties and their witnesses the Native Court disbelieved the evidence of the Plaintiff and believed the evidence of the Defendant and passed the following judgment: –
“Case dismissed, Court rules that if anybody caused damage or rooted the said rubber planted by Mr. Mowoe the person will be dealt with criminally. Mr. Mowoe authorised by the Court to use

the piece of land sold to him by the Defendant (Lesimone) at Okufuoma Defendant’s village for rubber plantation etc.”

The lower Court in Suit No. 40/84 further held that;
“It is therefore conclusive that the Issues decided in the suit Exhibit ‘C’ are that Lesimone is the absolute owner of the land at Okufuoma as against the Plaintiff’s claim that it belonged to Amukpe community. That the land in Amukpe belong to the community but individuals or families have absolute and alienable right over the portion or village they occupy.
As long as this decision has not been challenged or reversed on appeal, it is valid and binding on the parties to the suit.
…I believe and accept the evidence of the Defendants that the land contained in Exhibit ‘B’ and marked Pink is the land and rubber plantation purchased by Late Chief Mukoro Mowoe between 1936 and 1938 from Lesimone and other individual persons in Amukpe…”
See pages 147 & 149 of the Record.

The claims therein are;
The plaintiffs for themselves and on behalf of Amukpe Community, Sapele seek the following

reliefs;
1. A Declaration that the plaintiffs are the persons entitled to the right to possession and occupation of all that parcel of land lying and situate at Okririghwre-Amukpe along the Sapele/Warri Road within the Saplele Judicial Division as will be delineated in a Plan to be filed with the statement of claim.
2. A declaration that the Plaintiffs are the persons entitled to all the rents, premiums or any money whatsoever paid by EDOK-ETER MANDILAS LIMITED for the land occupied by the said EDOK-ETER MANDILAS LIMITED at Okirighwre as a result of the purported lease or Grant or any other interest in land conferred on the said EDOK-ETER MANDILAS LIMITED by Defendants being part of the Plaintiffs’ land in this suit.
3. An Order that the Defendants should pay over to the Plaintiffs all the money either as premiums, compensation, rents or any other money paid by EDOK-ETER MANDILAS LIMITED to the Defendants in respect of the Plaintiffs’ land at Okirighwre occupied by EDOK-ETER MANDILAS LIMITED as a result of the purported lease or Grant or any other form of interest in land conferred on EDOK-ETER MANDILAS LIMITED just before 1975 since

much lease or Grant or any other interest whatsoever passed on EDOK-ETER MANDILAS LIMITED is null and void.”

I have read the cited Exhibit F and I find that it relies on the previous judgment in 14/39 in respect of the Mowe land acquired from the Appellants’ father. I am satisfied that it captures relevant portions that touch on this appeal as per land acquired by the Respondents and that the Court in the above suit, considered the pleadings, evidence and judgment in Suit No. 14/39 before arriving at his conclusion and decision after evaluating the issues in the Claimants’ case at the lower Court and found the same land in issue.

From Exhibit F, the judgment of 14/39 was a Native Court judgment between Ojo on behalf of Amukpe versus Lesimone Akpaisi of Amukpe descendants. The plaintiff represented Amukpe people and it was decided that Amukpe land is a communal land, about the same time individuals have absolute and alienable right over the portion they occupy. See page 63, lines 5 – 16 of the record.
In that judgment, the Court held that parties are bound by the Native Court’s judgment. The non – tendering of the said

Native Court’s judgment is not fatal to the Respondents’ case.

It is important to set out the link between the Appellants herein and the Plaintiff in Exhibit F and 14/39. The action was brought on behalf of Amukpe people; the Appellants herein are from Amukpe and therefore form privies to the judgment.

The Appellants further contended the validity of Exhibit G; the deed of Conveyance, that same was repudiated the next day by them on the ground of

duress by their solicitor through a letter tendered as Exhibit J and that it renders the agreement illegal because it was procured by duress.

The Appellants provided particulars of the duress in their Further-Further Amended Joint Statement of 1st – 4th Defendants 10 (ii) – (iv) at pages 206 – 207 of the record thus;
(ii) On or about the 23rd day of May, 1974, the said Dr. D. D. Mowoe, Chief James Amu Mowoe and Dr. Moses Mowoe cunningly invited the 1st Defendant, Bernard, French and Boyitie to No. 20 Okere Road, Warri and with the assistance of some fierce looking thugs forcibly detained the 1st Defendant and the other invitees to

leave the said room unless and until they the 1st Defendant and invitees sign a deed of conveyance which the said Dr. D. D. Mowoe showed the 1st Defendant and the other invitees. The 1st Defendant and the other invitees were so detained for about three hours during which time they were not allowed to rest nor refreshed and they signed and one of them, French thumb printed the deed of conveyance when they were in a state of great fear for themselves and complete exhaustion.
(iii) The 1st Defendant and the other invitees were allowed to leave No. 20 Okere Road, Warri with their motor cycles they rode to the said NO. 20 Okere Road, Warri from Sapele by Dr. D. D. Mowoe and his cohorts after signing and thumb printing the deed of conveyance as aforesaid.
(iv) On or about the 24th day of May, 1974, so soon as the 1st Defendant Bernard, French and Boyitie recovered from their fears and exhaustion, they the 1st Defendant Bernard, French and Boyitie, as they were entitled to do, consulted and commissioned J. Y. Odebala (Esq) a legal practitioner of No. 30, Okpe Road, Sapele, who by a letter of the same date addressed and delivered to the said Dr. D. D. Mowoe,

repudiated the said conveyance by reason whereof the same became and was at all material times and is void and of no effect.” (UNDERLINING MINE)

Taking a cursory look at the said Exhibit G, which is a registered Deed of conveyance at paragraph 8, it states that;
“The predecessors in title of the Vendor and the Purchaser herein mentioned are desirous of confirming and ratifying the transaction herein described and reducing the same into a CONVEYANCE pursuant to the Instruments Registration Law Cap 56 Laws of Western Nigeria applicable in the Mid – Western State of Nigeria.
NOW THEREFORE this CONVEYANCE WITNESSETH:
1. In consideration of the sum of four hundred naira now paid by the predecessors in title of the purchaser to the predecessors in title of the Vendor in receipt whereof to the predecessors in title of the Vendor hereby acknowledges the predecessors in title of the Vendors as beneficial owners of the piece or parcel of land herein mentioned hereby convey unto the Predecessors in title of the Purchaser all that piece or parcel of land lying situate and being at

OKUFUOMA village, near sapele, which with its dimensions and abuttals is more particularly described and delineated on Plan No. S.A.C 74 which and thereon edged pink…” (UNDERLINING MINE)
See page 4 of Exhibit G, and page 194 of the record.

From the combined reading of the above portion of Exhibit G reproduced and the judgments of the lower Courts in Suit No. 14/39 and 40/84, the Deed of Conveyance was to serve as the written agreement of the prior sale of the land in dispute to Late Mr. Mowoe in the nineteen thirties and ratify same. It was in no way the agreement in itself, which has already been recognized by the Courts as valid in the previous judgments. The Appellants after taking the consideration sum of four hundred naira turn around to say they signed it under duress.

The Letter of repudiation was written to the Respondents on 24th May, 1974 and was purportedly delivered. The Respondents have stated that they did not receive any such letter; service of the Exhibit J was not also proven by the Appellants. This alleged letter was written after consultation with their lawyer J. Y. Odebala, who failed to report the purported

criminal act of the Respondents bearing in mind that they used fierce looking thugs to coerce the Appellants to sign the deed of conveyance, or even institute a civil action against them seeking to set aside the said deed of conveyance.

The letter Exhibit J made no reference to duress or presence of fierce looking thugs when they signed; there was no proof of delivery especially as there was no response from the late Dr. Mowoe. They did nothing more but sat to wait; this does not discharge the onus of proof of duress on them. I agree that the Court rightly discountenance same.

It is trite that when a person of full age enters into an agreement, he is bound by it unless he can prove fraud, duress or misrepresentation. The burden of proof and onus of proof is on the party alleging, see; T. EJUETAMI v MRS BENEDICTA O. OLAIYA (2001) NSCQLR VOL 8 385, ORAKA v ORAKA & ANOR (2019) LPELR – 47675 (CA).

Furthermore, the Deed of conveyance has been registered at the Lands Registry, Section 8 of the Land Titles Registration Law of Delta State WR 1959, Cap.57, which provides that;
(1) Application to be registered, as an owner under this Law

shall be made to, and the title to the land or lease shall be investigated by, the registrar in the prescribed manner.
(2) Each application for first registration shall be advertised by the registrar in the prescribed form at least once in the State Gazette and, if the registrar thinks fit, in one or more newspapers circulating in the State. Any number of applications may be included in one advertisement.
(3) Notice of every application for first registration shall be served on such persons, if any, as the registrar may direct, and, unless the registrar otherwise, orders, on each occupier of the land and on all the owners of the adjoining lands.
(4) Where notice of objection to a first registration is received within the prescribed time, the registration shall not be effected until the person objecting has been given an opportunity of being heard.”

It was within the prerogative of the Appellants to object to the said registration but this they failed to do and now contend with a mere letter in proof of duress.

This Court take recognizance of Sections 155 and 162 of the Evidence Act, 2011, which provides thus;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“155. Where any documents purporting or proved to be 20 years old or more is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
162. Recitals, statements, and descriptions of facts, matter, and parties contained in deeds, instruments, Acts of National Assembly or statutory declarations 20 years old or more at date of the contract in which such deed, instrument or other document is sought to be relied upon shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of such facts, matters and descriptions.”
Exhibit G was registered in 1974, which makes it a 40-year-old document and there is therefore a presumption of genuineness in favour of a document which is 20 years old.

In CHIEF ADEDOKUN ADEYEMI & ANOR v HONOURABLE ADENIYI FABKUN (2020) LPELR – 50144 (CA), on interpreting Sections 155 & 156 of the Evidence Act, it was held that;
“It is trite that by virtue of Sections 155 and 156 of the Evidence Act, 2011, where a document which purport to or is proved to be twenty (20) years or more is produce from proper custody, the Court may presume it was executed and attested by the person by whom it purports to be executed and attested. See NSIEGBE VS MGBEMENA (2007) 10 NWLR (PT. 142) 364; OBAWOLE vs. WILLIAMS (1996) 10 NWLR (PT. 477) 146; THOMPSON VS AROWOLO (2003) 7 NWLR (PT. 818 328. In AYANWALE VS ODUSAMI (2011) 18 NWLR (PT. 1278) 328, the Supreme Court, per Rhodes – Vivour, JSC held thus: “Section 123 of the Evidence Act states that: “Where any document, purporting or proved to be twenty years old, is produced from any custody which in Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the hand writing, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be

executed and attested.” Where a person has been in possession of land for 20 years or a long time and he produces from custody his title deeds, the custody is proper. By the provisions of Section 123 of the Evidence Act if documents are not less than 20 years at the time of trial in which they are to be used the Court will presume that they were properly signed by the person whose signature they bear. This reasoning is founded on necessity and convenience bearing in mind that it is difficult and at times impossible to prove the signature, handwriting or execution of documents over 20 years old as most of the people acquainted with the signature etc would be dead, or if alive their memories may have faded.”
per OJO, JCA (PP. 18 – 19, PARAS. C – F).
See also; CHIEF KOLA DAISI v PROPHET PRINCE YOMI OLOTO (2012) LPELR – 8561 (CA); FRANCIS ADESINA AYANWALE v OLUMUYIWA OLUMODE ODUSAMI (2011) LPELR – 8143 (SC); MR. KAYODE ELABANJO v ALHAJA RISKAT ADEBOLA AJIGBOTESHO & ANOR (2012) LPELR – 7892 (CA).

There is adequate pleading in paragraph 7 of the Further- Further Amended statement of claim and the lower

Court in Exhibit F in page 149, line 13 held;
“I do not believe the plaintiffs. I believe and accept the evidence of the Defendants that the land contained in exhibit B and marked pink is the land and rubber plantation purchased by late chief Mukoro Mowe between 1936 and 1938 from Lesimone and other individual persons in Amukpe …the plaintiff’s case is dismissed…’’
There was no appeal against this judgment and it constitutes estoppel against the Respondents’ stand.

I agree with the findings of the Court that having held in previous judgment that the Respondents’ father bought 4/5 of the entire acre of land from Nesimone and other individuals and therefore what was left was small, the Appellants could not claim that Respondents encroached on their land in view of overwhelming findings and holdings in the suit 40/84; Exhibit f and suit 14/39.
Flowing from the above, I resolve issue 1 against the Appellants.

Issue 2 as formulated by the Appellants borders on whether the claim of the Respondents was not statute barred having regard to the provision of Statute of Limitation of Delta State, 2006 and

the doctrine of laches and acquiescence.

Section 18 of the Limitation Law Cap L11 Laws of Delta State, 2006 which is applicable to other actions provides;
“No action founded on contract, tort or any other action not specifically provided for in parts II and III of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.”

The above provision relied upon by the Appellants deal with action brought pertaining specifically to contract or any other action not provided for in parts II and III.

The main crux of the Respondents’ claim at the lower Court was “entitlement to a certificate of occupancy over the land in dispute’’. Therefore the action is founded on land, the claim to special and general damages was an ancillary claim which was rightly denied by the lower Court, where it held thus;
“I have already referred to the only evidence proferred(sic) by the 2nd Plaintiff to support this claim. Firstly, it falls far below the requirement for a successful entitlement of special damages in the circumstance. The evidence is that the destruction took

place in 1995; why did the Plaintiffs wait till 2004 (9 years after) before asking for a redress. Who counted or at least enumerated the damaged item? And over what area did the destruction take place? These are all questions begging for answers that the Plaintiffs could not provide. The 2nd Plaintiff even compounded issues here when he said under cross examination that the destruction took place in 2005; a year before this action was filed. Even if I take it that that was a slip (in that he meant to say 1995) the earlier poser still remains unanswered. The 2nd Plaintiff could not say how he came by the numbers and prices attached to each of the items. I shall not dwell more on this other than say that the evidence proferred (sic) here falls below the minimum requirement to sustain a claim for special damages, coupled with the fact that bringing the action after nine years contravenes Section 18 of the Limitation Law Cap L11 Laws of Delta State of Nigeria, 2006 which prescribes a minimum period of five years to seek redress. I cannot therefore accede to this subhead of special damages and it is accordingly refused.”

The Respondents claim for special

damages was on the ground that the Appellants broke into and entered upon the said land in dispute without the consent and authority of the Respondents, this is a claim for trespass, which is under tortuous liability.

In answer to whether the action is statue barred, the requirements as stated in ALHAJI BOLA YUSUF v ALH. RAFIU OGUNLEYE & ORS (2019) LPELR – 47656 (CA), held thus;
“The period of limitation in any limitation statute is determined by looking at the writ of Summons and the Statement of claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the Writ of Summons was filed. If the time on the writ of Summons is beyond the period allowed by the Limitation Law, the action is statute barred…. to the minutest details. It is really an arithmetic exercise which needs a most accurate answer. See Mrs. O. Adekoya v F. H. A (2008) 4 SCNJ 151.”
per TALBA, JCA (PP. 24 – 25, PARAS. D – B)
See also; BRAWAL LINES LIMITED v DEE – DAMOR DEVELOPMENT COMPANY LIMITED (2015) LPELR – 24515 (CA);

TOHIR FOLORUNSHO ISMAILA & ORS v CENTRAL BANK OF NIGERIA & ORS (2017) LPELR – 43380 (CA); FEDERAL HOUSING AUTHORITY v HRM OBA ISAAC OWOLABI OLAYEMI & ORS (2017) LPELR – 43376 (CA).
It is on record and not disputed by the parties that the cause of action arose in 1995 and the Respondents filed their action at the lower Court in 2004. For a certificate of ownership of the land in dispute the applicable provision is;
Section 3 of the Limitation Law Cap L11 Laws of Delta State, 2006 which provides that;
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims to that person.”
The time span from 1995 – 2004 is a period of nine years. The Respondents are therefore within time limit to file an action to recover the land. Therefore, the Respondents’ claim cannot be statue barred and the doctrine of laches and acquiescence which is a special defence which was not pleaded doesn’t avail the Appellants under the circumstances of this case. See;

ALHAJI ABATCHA MOHAMMED KOLO v ALHAJA MOHAMMED LAWAN (2018) LPELR – 44378(sc); EMMANUEL FAGBEMI v ISIAH ALUKO (1968) LPELR – 25454 (SC).
I resolve issue 2 against the Appellants.

On issue 3, the survey plans before the Court as gleaned from the record are; Exhibit C (survey plan dated 8th February, 2005, amended 10th October, 2007), Exhibit D (Survey plan dated 7th November, 1984), Exhibit E (Survey Plan No. SAC/74 dated 17th August, 1965) and Exhibit H (Survey plan dated 9th May, 2008).

Exhibits C, D & E were tendered by the Respondents through PW3, one Solomon Oijagbe Asuelimen who is a registered surveyor and Exhibit H was tendered by the Appellants through DW1, one John Aigbe who is also a registered surveyor.

It is pertinent to state the requirements of a survey plan attached to a registrable instrument as provided in Section 3 of the Survey Law Cap S13, Laws of Delta State, 2006 thus;
“No map, plan or diagram of land-
b) if prepared after the 20th day of October, 1897 shall, save for good cause shown to the Court, be admitted in evidence in any Court, unless the map, plan or diagram has been prepared and signed by a surveyor or is a copy

of a map, plan or diagram so prepared and signed and is certified by a surveyor as being as true copy.”
See also; In BARRISTER SUNDAY OYAWOLE v REV. GABRIEL MAKAN & ORS (2018) LPELR – 43994 (CA), per ABIRIYI, JCA held thus;
“The Survey Law has not distinguished a site plan from a survey plan if there is any distinction. After all both site plan and survey plan are drawn by surveyors. I agree entirely with learned counsel for the Appellant that the Survey Law applies to all plans of whatever nature. In the circumstances Exhibit 6 which is a site plan is admissible in evidence if good cause is shown why the document was not prepared and signed by a surveyor. See Aliyu vs. Sodipo (1994) 5 SCNJ 1 at 20 and the decision of this Court in Umoru & Ors vs. Orire & Anor (2010) LPELR 9065 CA PAGE 21 per Agube, JCA. It is nowhere suggested by 1st Respondent counsel that good cause has been shown why the document was not prepared and signed by a surveyor. It is therefore inadmissible. It was wrongly admitted and should be expunged from the record…”
Flowing from the above, the basic requirement for admissibility of a

survey plan in law is that it be prepared and signed by a surveyor. It is not necessary that a survey plan be based on a document of purchase for it to be valid, the primary purpose of a survey plan is to identify the land in dispute.

The Survey plans in this suit were not used to prove title but to identify the extent of the land in dispute.
The lower Court on the survey plans held that;
“I also see the Plans tendered in this case i.e the 1965 Plan, 1974 Plan, the 1984 Plan by the Plaintiffs, they all show regularity and consistency, some of them drawn up when no litigation was envisaged. The areas and particulars are all the same.”
See lines 21 – 24 of page 320 of the Record.

Even DW1, the Appellants’ Surveyor under cross examination stated thus;
“I see Exhibit E, the total area is the equivalent of 2.471 acres. Exhibit E was signed by the State surveyor General. The Defendant also handed to me Exhibit ‘c’ which is the Claimant’s survey plan.
The Acre of land in Exhibit C and Exhibit E are approximately the same. P. B means Property Beacons (placed by Government). These are

reflected in Exhibits C and E. I went to the land and reflected what I saw.”

Flowing from the above, I see no reason why the Survey Plans would not be admissible and relied on by the lower Court as proof of the identity of the land in dispute.

On the contention that Exhibit F; the judgment of 1984 was not between the Appellants and the Respondents, therefore the Appellants are not bound by it. I adopt my postulations in issue 1 and further reiterate that judgment in 1984 was largely considered in favour of the Respondents because of the decision of the lower Court in 1939, which is binding on the Appellants as members of the Amukpe community and more importantly as family members of Lesimone Akpoaisi as heirs, assigns and privies which can be by blood such as testator and heirs/privies; in law as testator and executors/administrators succession and in estate as vendors and purchasers, lessors and lessees. The Appellants are bound by the still existing judgments which have not been appealed against.

The Appellants in its brief did not make submissions on their issue 4 but rather made submissions on perpetual injunction under issue 3, which

would be addressed in this judgment.

It is pivotal to this issue to understand the essence of granting a perpetual injunction. In GOLDMARK NIGERIA LIMITED & ORS v IBAFON COMPANY LIMITED & ORS (2012) LPELR – 9349 (SC), the Court held that;
“The grant of the relief of perpetual injunction is a consequential order which should naturally flow from the declaratory order sought and granted by Court. The essence of granting a perpetual injunction on a final determination of the rights of the parties is to prevent permanently the infringement of those rights and to obviate the necessity of bringing multiplicity of suits in respect of every repeated infringement. Commissioner of Works, Benue State vs. Devcon Ltd 1988 3 NWLR pt. 407 LSPDC vs. Banire 1992 5 NWLR pt. 243 at pg. 620. Afrotec vs. MIA (2001) 6 WRN pg. 65, Globe Fishing Industries Ltd vs. Coker (1990) 7 NWLR pt. 162. Pg. 625.”
per ADEKEYE, JSC (P. 65, PARAS. B – D).
See also; MR. MICHEAL UDO UDO v MR. EMMANUEL UWEM ANYANKANA (2016) LPELR – 41192 (CA); MRS. NNEKA OGUEJIOFOR v EMMANUEL AFAM NWAKALOR (2011) LPELR – 4691 (CA); BITRUS YAHAYA v JOSHUA BAWA (2015)

LPELR – 26009 (CA); MR. IGNATUS ANYANWU & ORS v MR. ALOYSIUS UZOWUAKA & ORS (SUPRA).

The lower Court having resolved issue 1 and 2 in favour of the Respondents which related to title of land and trespass, it was of normal consequence that the Respondents be entitled to a perpetual injunction to prevent a repeat of hostilities and to preserve the property.

The lower Court further stated that; the Respondents are entitled to a perpetual injunction of all that piece or parcel land demarcated in pink in Exhibit C i.e Plan No. DDNL/DT/029B/05 as against the Defendants.
The perpetual injunction was to preserve the land in dispute verged PINK on the survey plans.
I hereby resolve issue 4 in favour of the Respondents.

On the whole, having resolved all the issues against the Appellants, the appeal fails and is hereby dismissed.
The judgment of Honourable Justice G. E. Gbemre delivered on 26th February, 2015 is hereby affirmed.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, ABIMBOLA OSARUGUE

OBASEKI-ADEJUMO, JCA and I cannot but say that I agree entirely with the resolution of the issues considered in the said leading judgment.

I too therefore, find the instant appeal to fail and dismiss the same. The judgment the lower Court delivered on 26/2/2015, is hereby upheld.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I had been availed the opportunity of reading in draft before now the lead judgment in this Appeal, just delivered by my learned brother ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, JCA and agree entirely with the reasoning and conclusion arrived at that the appeal be dismissed.

The Respondent’s as Plaintiffs had, had Judgment in the favour of their predecessors in title in respect of a large expanse of land which the land in dispute form a part thereof shown by copies of Court Judgments relied upon at the trial.

The identified position of the land in the previous Suits in the Judgments in S/14/29 and S/40/84 and as captioned in the site plans described in the Judgments are documents in the Court’s file which the Court was entitled to look at and to act accordingly. Those judgments

tendered as Exhibits “S” and “F” were sufficient proof of title of the Respondents herein. The later judgment in Exhibit “F” was delivered by the Supreme Court.

The belated after thought in the defence of “Duress” set up to vitiate the title already congealed in favour of the Respondents could not be achieved by the challenge raised against the surplusage act of ratification by the Deed of Conveyance made, the erection of Limitation of time, damages and injunction challenge have, on the evidence and law been correctly resolved. I agree.

I concur that the respondents’ title was melted or thawed by their action intended probably to have a document of title to enable dealings in the land in the character of a Deed of Conveyance as in instrument.

The Respondents probably, then did not appreciate that a Court Judgment could form the basis for the issuance of a Certificate of title by a Registrar of Titles or Deeds.

On the whole, I concur that the Decree of declaration of title, Damages for Trespass and the Order of Injunction were rightly granted and the affirmation by my lord in this

leading Judgment is apt. I concur.

Appearances:

G. E. Oaikhena For Appellant(s)

I. Agboroh with him O. E. Otitigbe For Respondent(s)