ALE & ANOR v. UGIAGBE & ANOR (2020)

ALE & ANOR v. UGIAGBE & ANOR

(2020)LCN/14627(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, September 28, 2020

CA/B/395/2016

RATIO

PLEADINGS: RE-EVALUATION OF EVIDENCE BY THE COURT OF APPEAL.

it is the law that it is only where the Court below had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led, and had thus failed in this primary duty, that an appellate Court would have the legal justification to intervene and re – evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re – evaluation of evidence does not arise since an appellate Court has no business re – evaluating the evidence and interfering with correct findings of a trial Court. See Williams V. Tinubu (2014) All FWLR (Pt. 755) 200. See also Amuneke V. The State (1992) NWLR (Pt. 217)347; Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709; Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471; Woluchem V. Gudi (1981) 5 SC. 291; Enang V. Adu (1981) 11-12 SC. 25; Abisi & Ors. V. Ekwealor & Anor (1993) 6 NWLR (Pt. 302) 643; Igago V. The State(1999) 12 SCNJ 140 @ p. 160;Amala V. State (2004) 12 NWLR (Pt. 888)520.
Thus, even where the appellate Court comes to the conclusion that there is need to re – evaluate the evidence, it must be borne in mind that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, and therefore, once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court should not interfere once the conclusions reached is correct, even if the reason turns out to be wrong. This is so because in law an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong; that is the law. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu18 WACA 46.
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 moved is under a bounden duty to intervene to evaluate the evidence as in the 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, where Oputa, JSC, (God bless his soul) had opined inter alia thus:
“There is a duty on a trial Court to receive all available evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence”
See also Tangale Traditional Council V. Fawu (2001) 17 NWLR (Pt. 742) 330 @ pp. 335 – 336.
In law, 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. SeeAlake V. State (1992) 9 NWLR (Pt. 265) 260. See also Dantiye & Anor V. Kanya & Ors (2008) LPELR – 4021 (CA); Afemai Microfinance Bank Ltd V. Seacos Nig. Ltd (2014) LPELR – 22583 (CA). . Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

RATIO

PLEADINGS: WHERE A CLAIMANT CLAIMS A DECLARATION OF TITLE OF LAND, HE MUST PLEAD AND LEAD CREDIBLE EVIDENCE IN SUPPORT.

My lords, where a Claimant claims a declaration of title to land, it is settled law that in order to succeed he must plead and lead credible evidence in support of the root of title he relies upon. Generally, there are 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. SeeIdundun V. Okumagba (1976) 6 – 10 SC 48. See also Arum V. Nwobodo (2013) All FWLR (Pt. 688) 870 @p. 893; Nruamah V. Ebuzoeme (2013) All FWLR (Pt. 681) 1426; Kano V. Maikaji(2013) All FWLR (Pt. 673) 1856 @ pp. 1868 – 1869; Ojah V. Eviawure (2000) FWLR (Pt. 57) 163; Okorie V. Onyejewu (2001) FWLR (Pt. 41) 1820; Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612; Egbo V. Agbara(1997) 1 NWLR (Pt. 481) 293 @ p.303; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 @ p. 133; Romaine V. Romaine (1992) NWLR (Pt. 235) 650.
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.”

In law, a Claimant to title to land is not required to prove more than one of the five ways of proof of title to land, but where he fails to satisfy the Court on any one or more of the five ways he relies on as his root of title then his claim to title to land must fail. See Idundun V. Okumagba (1976) 9 – 10 SC 27. See also Chief Elemoro & Anor Vs. Chief Abiodun (2014) LPELR 23195; Piaro V. Tenalo (1976) 12 SC 31 @ p. 37;Dabo Vs. Abdullahi(2005) LPELR – 903 (SC). From the averments in the Statement of Claim, and as even clearly reflected in their relief number one, the principal root of title relied upon by the Respondents is by production of title documents, namely Exhibit E, which form the crux of their pleadings in paragraphs 6 and 7 of the Statement of Claim, which the Appellants by their evasive traverse are deemed to have admitted. This ordinarily, in my view, settled the issue of proof of the Respondents’ title by production of title document as in Exhibit E. However, the Court below had upon evaluation and ascription of probative value thereon found that Exhibit E was validly made by the Governor of Edo State and thus constituted a valid grant of the land in dispute to the Respondents. . Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

RATIO

PLEADINGS: INCONSISTENCY

I have taken time to review the submissions of learned Senor Advocates for the respective parties in this Appeal and have considered the findings of the Court below, and it does appear to me that going by the succinct provisions ofSections 1 and 2 of the Land Use Act 1978, the power to deal with land in Edo State is vested in the Governor of Edo State and not on the Edo State Executive Council as purported to have been provided by Section 21 of the Forestry Law of Edo State. It follows therefore, the provisions of Section 21 of the Forestry Law of Edo State. a State law, being inconsistent with the provisions of Sections 1and 2 of the Land Use Act, a Federal Law, is to the extent of the inconsistency null and void and the Governor of Edo State is, in my view, empowered by law to modify it to bring it into conformity and in line with the Land Use At 1978 to give purpose, clarity and effectiveness to the intention of the legislature for effective management and control of all land in the Urban Areas of Edo State by the Governor of the State. See AG. Abia V. AG. Federation (2003) 4 NWLR (Pt. 809) 124 @ p. 179.
Thus, the submission to the above effect by the Respondents is therefore, in my view, apt, sound and unassailable. I accept it as correct and hold firmly that the Court below was right and on firmer ground when it held that Exhibit E, issued on 27/10/2006 by the Governor of Edo State within the plenitude of powers conferred on him by law was valid and did confer on the Respondents the right of ownership over the land in dispute. This finding is both impeccable and unimpeachable and must be allowed to stand in this appeal! See Section 21 of the Forestry Law, Law of Bendel State Cap. 59 Law of Bendel State of Nigeria as applicable in Edo State. See also Sections 1 (1) and 315(3) and(5) of the Constitution of Nigeria 1999 (as amended), andSections 1 and2 of the Land Use Act 1978. . Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

RATIO

PLEADINGS: A PARTY RELYING ON TRADITIONAL HISTORY MUST PLEAD SUFFICIENTLY.

It is the law that a party relying on evidence of traditional history of title to land in dispute must plead and prove the following, namely; a. the name of founder of the land, b. in what manner the land was founded and the circumstances leading to it, c. the names or particulars of successive owners through whom the land devolved from the founder to the present party claiming ownership of the land. See Alade V. Awo (1975) 1 SC 215. See also Ani V. Ewo (2004) 1 SC 115; Lawani Alli & Ors. V. Chief Gbadamosi & Ors. (2000) 6 NWLR p. 233; Oyadare V. Keji (2005) 7NWLR (P1. 925) 571.
In other words, a party seeking a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say, he must demonstrate in his pleading the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Thus, where a party has not given such sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim. See Hyancith Anyanwu V. Robert Achilike Mbara (1992) 5 SCNJ. 90; Idundun V. Okumagba (1976) 9-10 SC 224; Atanda V. Ajani(1989) 3 NWLR (Pt. 111) 511. Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Tinuade Akomolafe-Wilson Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

MR. UYIEKPEN ALE (The Odionwere Of Ulemo Community) 2. MR. JOHN ERHENYI (Defending For Themselves And As Representatives Of Ulemo Community Of Oredo Local Government Area Of Edo State) APPELANT(S)

And

MR. SOLOMON UGIAGBE 2. MR. MARVEL EKHATOR (Suing For Themselves And As Representatives Of Evbuowe, Evbuoghodo And Idemudia Communities Of Oredo Local Government Area Of Edo State) 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: G. O. Imadegbelo J., in Suit No. B/409/20108: Mr. Solomon Ugiagbe & Ors V. Mr. Uyiekpen Ale & Ors delivered on 20/7/2016, wherein the claims of the Respondents, as Claimants against the Appellants, as Defendants were granted.

The Appellants were peeved with the said judgment and had appealed against it to this Court vide their First Notice of Appeal filed on 1/8/2016 and a Second Notice of Appeal dated 19/8/2016 on seven Grounds of Appeal but not filed at the Registry of the Court below. However, on 15/9/2020, as well as at page 4 of the Appellants’ brief, the First Notice of Appeal filed on 1/8/2016 was withdrawn by the Appellant, and consequently hereby struck out. Thus, leaving only the Second Notice of Appeal dated 19/8/2016 but not filed as the extant Notice of Appeal relied upon by the Appellants in this Appeal. The Record of Appeal was duly transmitted to this Court on 13/10/2016. The Appellants’ brief was filed on 16/11/2016. The Respondents’ brief was filed on 20/4/2018

but deemed properly filed on 16/5/2019. The Appellants’ Amended Reply brief was filed on 30/8/2017 but deemed as properly filed on 11/12/2017.

At the hearing of this Appeal on 15/9/2020, Chief H. O. Ogbodu SAN, learned Senior Advocate for the Appellants, appearing with Okuns Aihie Esq., adopted the Appellants’ brief and the Appellants’ Amended Reply brief as their arguments and urged the Court to allow the Appeal and set aside the judgment of the Court below and dismiss the claims of the Respondents. On his part, B. O. Ojumah Esq., learned counsel for the Respondents adopted the Respondents’ brief as their arguments and urged the Court to dismiss the appeal and affirm the judgment of the Court below.

By a Writ of Summons filed on 19/5/2010, the Respondents as Claimants before the Court below claimed against the Appellants as Defendants, the following reliefs, namely:
“1. A declaration that the Plaintiffs by virtue of Edo State of Nigeria Gazette No 51 Vol 17 dated 6th December 2007 are the ones entitled to the statutory right of occupancy of all that parcel of land at Ogba Forest reserve containing in area

of about 30.315 hectares situate and lying at Oredo Local Government Area of Edo State within the Benin Judicial Division of this Honourable Court which is particularly described in the said Gazette as de-reserved land for Evbuowe, Evbuoghodo and Idemudia Communities by the State Government and delineated in the said survey plan as pleaded in paragraph 12 above.
2. An order of perpetual injunction restraining the defendants, their servants, agents, privies and/or any person claiming through them or whatsoever from entering or remaining upon the said piece or parcel of land in purported exercise of any right in relation to the possession use and occupation of the said land or any part thereof in derogation of the Plaintiffs’ right or interest as vested by the State Government vide Edo State Gazette No 51 of 6th December, 2007 Vol. 17 as delineated in litigation survey plan as pleaded in paragraph 12 above.
3.The sum of N10,000.00 only being general damages for the defendants’ various acts of trespass on the land in dispute” See pages 1 – 6 of the Record of Appeal.

The parties filed and exchanged pleadings and the matter proceeded

to trial. At the trial, the Respondents called one witness and tendered some documents admitted in evidence as Exhibits A, B, C, D1, D2, and E. The Appellants called three witnesses and tendered some documents admitted in evidence as Exhibits F and G. At the conclusion of trial, filing and adoption of final written addresses by counsel to the parties, the Court below delivered its judgment on 20/7/2016, granting the claims of the Respondents against the Appellants, hence this appeal. See pages 1 – 3; 4 – 6; 53 – 57; 133 – 137; 222 – 224; 224 – 225; 225 – 226; 226 – 227; 247 – 273 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the Respondents, as Claimants before the Court below, as can be gleaned from their pleadings and evidence, oral and documentary led at the trial was that the land in dispute formed part of the area acquired for forest reserve in the 19th century. One Owe was their founder, he migrated from Iguihean village. Their forefathers deforested the land for farming. The forest reserve remained government property after independence in 1960. The Edo State Government published in the Nigerian Observer Exhibits D1

and D2 “its intention to de-reserve some hectares for the Respondents for development. On the 2/6/2006 the Edo State Governor approved for the Respondents including Effionayi community approximately 40.315 hectares of forest reserve, out of which only approximately 30.315 hectares is the subject matter in this case. The then Governor, His Excellency Lucky Igbinedion published in Edo State Gazette No.51 Vol.17 Edo State Notice 61 dated 6/12/2007, Exhibit E. The Respondents have a statutory right of occupancy by virtue of the Gazette. However, sometimes in 2009 the Respondents discovered illegal structures being constructed on the land by the Appellants. After the reservation the Ministry of Agriculture allocated an area of the forest reserve to farmers from the Respondents’ community to farmers from different communities including the Appellants’ community to farm, which did not confer ownership of the land on the community farming there as communal land called Evboudia Taungya farm. After the colonial masters reserved the forest the Respondents moved out to settle outside the forest reserve. The Appellants’ shrines are not within the Forest

reserve. The land having been de – reserved and released to the Respondents’ community by the Governor belongs to the Respondents. See pages 1 – 3; 4 – 6; 222 – 224 of the Record of Appeal.

On the other hand, the gist of the case of the Appellants, as Defendants before the Court below, as can be gleaned from their pleadings and evidence, oral and documentary led at the trial was that the grandfather of the DW2 was the first Urhobo man to set up a camp in Ulemon community, while his father and himself were born and raised there and that Odibo camp does not once belong to the Respondents. However, the Appellants were aware that the land in dispute was declared forestry reserve by the Colonial masters but did not amount to an acquisition by Government as erroneously indicated in the Gazette Exhibit E. The Appellants were not aware of any application by the Respondents to the Government of Edo State to de-acquire the land but they only became aware when the Respondents encroached on the land in dispute 2003 and over which their community protested through their legal adviser. By traditional history of the land in dispute, during the Colonial

period portion of Appellants’ Ulemon community land was declared as forest reserve. The Respondents had no house or farmland within the forest reserve and the entire area in dispute falls within the Appellant’s community land. There is Evhbuoghodo community existing within Ogba area. The Edo State Government which only took over the management of the forest reserves at Nigeria’s independence did not acquire forest land as State land as the Colonial Government only administered the forest reserve while the owners of the land remained the Appellants’ community. See pages 55 – 57; 78 – 80; 133 – 137; 224 – 225; 225 – 226; 226 – 227 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellants’ brief, a sole issue was distilled as arising for determination from the surviving five Grounds of appeal, namely:
“Whether based on the claims, the evidence led and surrounding circumstances of this case, the Court below was right in entering judgment for the Respondents on the basis of their Claims?” (Distilled from Grounds 1, 3, 4, 5 and 6)

In the Respondents’ brief, the sole issue as distilled

in the Appellants’ brief was adopted as the sole issue arising for determination in this appeal.

I have taken time to review the pleadings and evaluate the entirety of the evidence as led by the parties as in the Record of Appeal 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 sole issue on which the parties are ad idem represents the only proper issue for determination in this Appeal.

At page 4 of the Appellants’ brief, grounds 2 and 7 of the Grounds of Appeal were abandoned by the Appellants. Consequently, Grounds 2 and 7 in the Appellants’ Second Notice of Appeal dated 19/8/2016 having been abandoned by them are hereby struck out.

My lords, before proceeding to consider the sole issue for determination, I am aware that there is a Notice of Preliminary Objection incorporated into the Respondents’ brief challenging the competence of the entire appeal of the Appellants, which must be considered and determined first by this Court. I shall therefore, proceed anon to do so.

NOTICE OF PRELIMINARY OBJECTION
By a Notice of Preliminary Objection incorporated into the Respondents’ brief, the Respondents are challenging the competence of this Appeal on the ground that the only Notice of Appeal duly filed at the Registry of the Court below on 1/8/2016 at pages 178 – 281 of the Record of Appeal having been jettison and withdrawn by the Appellants, the Appeal was rendered incompetent by reason of the absence of any other valid Notice of Appeal on which this Appeal can be heard and determined on the merit.

RESPONDENTS’ COUNSEL SUBMISSIONS
Learned Senior Advocate for the Respondents, Sir Chief Dr. Alfred O. Eghobamien SAN, had submitted that there is no appeal by the Appellants in that the original Notice of Appeal has been jettisoned by the Appellants and contended that in law since the Notice of Appeal has been jettisoned there is no longer any appeal filed by the Appellants and urged the Court to hold that the Appeal is incompetent and liable to be dismissed and to be so dismissed. Learned SAN referred to Order 11 Rule 5 of the Court of Appeal Rules 2011; Section 25(2)(a) of the Court of Appeal Act 1976 and relied on

Ogigie V. Obiyan (1997) 10 NWLR (Pt. 524) 179 @ p. 195.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
Learned Senior Advocate for the Appellants, Chief H. O. Ogbodu SAN, had submitted that though the Notice of Appeal filed on 1/8/2016 has been jettisoned by the Appellants, the Appeal is still competent in that there is another valid extant Notice of Appeal dated 19/8/2016 within the three months as allowed by law for the filing of a Notice of Appeal and urged the Court to hold that there is a subsisting Notice of Appeal and to dismiss the preliminary objection for lacking in merit.

RESOLUTION OF THE PRELIMINARY OBJECTION
My lords, in considering the preliminary objection challenging the competence of this Appeal, I bear in mind first and foremost that in law the issue of competence is very fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. Thus, once raised it should be determined first one way or the

other before the issue of the merit of the matter, if need be, can be considered by the Court. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Elugbe V. Omokhafe (2004) 18 NWLR (Pt. 905) 319 @ p. 334; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284; NDIC V. CBN (2002) 7 NWLR (Pt. 766) 272.

Now, the Appellants had in the Appellants’ brief jettisoned their Notice of Appeal, hereinafter simply referred to as the ‘First Notice of Appeal,’ filed on 1/8/2016. Consequently, and without much ado, the First Notice of Appeal filed on 1/8/2016, having been jettisoned by the Appellants, is hereby struck out. However, there is another Notice of Appeal, hereinafter simply referred to as the ‘Second Notice of Appeal’ dated 19/8/2016 but which has no indication on it of having been filed at any time at the Registry of the Court below. See pages 281 A – 281 H of the Record of Appeal.
So, in law, is the Second Notice of Appeal competent? The First Notice of Appeal was filed on 1/8/2016 clearly within the statutory three

months period as allowed by law but was jettisoned by the Appellant at page 4 of the Appellant’s brief and earlier in this judgment struck out, leaving only the Second Notice of Appeal dated 19/8/2016 but which was not filed on any date before the Registry of the Court below as required by law. Had the Second Notice of Appeal been also duly filed at the Registry of the Court below on or before 20/10/2016, which was not the case, the striking out of the First Notice of Appeal would have been of no adverse legal consequences on competence of this Appeal.
In the circumstances therefore, the only duly filed First Notice of Appeal having been struck out, the Second Notice of Appeal dated 19/8/2016 but regrettably not filed in the Registry of the Court below is in law not a Notice of Appeal as required by law to challenge the judgment of the Court below before this Court since in law it is the date of which a Notice of Appeal was filed that is relevant and significant and not the date on which the party dated it as to the date it was prepared. The date on which it was prepared is of no legal significance and unless and until such a Court process is duly

filed at the appropriate Registry of the Court and the necessary fees paid or waived, it remains a worthless paper not worthy of any attention and consideration by a Court of law.
So, it is regrettably with the purported Second Notice of Appeal dated 19/8/2016 but not filed at the Registry of the Court below as required by law. It therefore, remained a worthless piece of paper incapable of invoking the appellate jurisdiction of this Court to hear and determine a purported Appeal against the judgment of the Court below delivered on 20/7/2016 and emanating from such an incompetent, invalid and nonexistence Second Notice of Appeal.
Having arrived at the inescapable conclusion that the Appellants’ appeal against the judgment of the Court below delivered on 20/7/2016 by a purported Second Notice of Appeal dated 19/8/2016 but not filed at the Registry of the Court below as required by law had rendered the entire Appeal originated without a valid Notice of Appeal incompetent, and thus liable to be struck out in – limine, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ seems

to have come to the fore once again to play on the conscience of this Court; should we jettison and discountenance technicality bordering on incompetence of the Appellants’ Appeal or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent Appeal and end the matter here and now?
In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 @ p. 365 – 366, I had cause to consider deeply the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had opined inter alia thus:
“My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions

precedent to the exercise of its powers have been fulfilled. See Andrew V. INEC (2018) 9 NWLR (Pt. 1625) 507 @ pp. 540 – 541; Madukolu V. Nkemdilim (1962) 1 All NLR 587.”
I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the Appellant’s Appeal that is grossly incompetent in law.
The preliminary objection challenging the competence of this Appeal therefore, has merit and it is hereby upheld. Consequently, this Appeal is hereby struck out for being incompetent in the absence of any valid extant Notice of Appeal filed within the statutory period of three months before the Court below as required by law or within an extended period of time with the leave of Court as required by law.
However, the above position notwithstanding, I am aware that this Court being an intermediate appellate Court is enjoined by law and the Apex Court to consider and determine all issues placed before it in an Appeal, and therefore, assuming for a moment but not so deciding that the decision that this Appeal is incompetent is not correct, and being not

infallible as we may sometimes be wrong, I shall proceed to consider the substantive Appeal on the merit.

SOLE ISSUE
“Whether based on the claims, the evidence led and surrounding circumstances of this case the Court below was right in entering judgment for the Respondents on the basis of their Claims?”

APPELLANTS’ COUNSEL SUBMISSIONS
Learned Senior Advocate for the Appellants, Chief H. O. Ogbodu SAN, had submitted that based on the Claims, the evidence led and the surrounding circumstances of this case the Court below was wrong in entering judgment for the Respondents on the basis of their claims in that their principal claim as endorsement in their Statement of Claim was for declaration of title to the land in dispute, whose onus of proof was on the Respondents to satisfy the Court that they are entitled to the declaration sought on the strength of their own case but which they failed to discharge this vital onus and urged the Court to hold that the Court below was in grave error to have proceeded in the circumstances to enter judgment for the Respondents and to allow the appeal and set aside the perverse judgment of

the Court below. Learned SAN relied on Stowe V .Benstowe (2012) 9 NWLR (Pt. 1306) 450 @ p. 453; Kodilinye V. Odu (1935) 2 WACA 336; Ajiboye V. Ishola (2006) 13 NWLR (Pt. 998) 628 @ p. 654; Dike v. Okoloedo (1999) 10 NWLR (Pt. 623) 359.

It was also submitted that the Respondents had relied solely on the Edo State of Nigeria Gazette No. Vol. 17 dated 6/12/2007 admitted as Exhibit ‘E’ as their root of title and nothing more and contended that in law a Claimant who pleads a particular root of title but fails to prove it cannot rely on another root of title and contended that the Court below misconceived the root of title relied upon of the Respondents when it held that it was evidence of traditional history of title by first settlement of their ancestors and entered judgment on that basis to the Respondents, whose sole root of title relied upon by them was the production of Exhibit E and nothing more and urged the Court to hold that the findings of the Court below was perverse and erroneous and thus liable to be set aside and to allow the appeal. Learned SAN relied on Ude V. Chimbo (1998) 12 NWLR (Pt. 577) 169 @ p. 173; Idundun & Ors V. Okumagba & Ors

(1976) Vol.10 NSCE 440; Ngene V. Igbo (2000) 4 NWLR (Pt.651) 131 @ p. 149; Eze V. Atasie (2000) 10 NWLR (Pt. 676) 470; Ohiaeri V. Akabeze (1992) 2 NWLR (Pt. 221) 1.

It was further submitted that the Respondents in relying on Exhibit E as their root of title asserted that Chief Lucky Nosakhare Igbinedion, the Executive Governor of Edo State whom they derived their title from in the exercise of his powers under the Constitution and de-reserved the forest reserve and granted same to them and contended that they having so claimed the onus was on the Respondents to prove this root of title and nothing more and urged the Court to hold that the Governor of Edo State has no right under the Constitution and the Laws of Edo State to make order to give out reserved land or de-reserve a forest reserve to give to the Respondents, which action was ultra vires, null and void and of no effect since such power is conferred on the Edo State Executive Council and not on the Governor of Edo State and to allow the appeal and set aside these perverse findings of the Court below. Learned SAN referred to Section 315 (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended.

Section 12 and 21 of the Forestry Law Chapter 59 Laws of Bendel State of Nigeria, 1976 applicable to Edo State and relied on AG. Abia V. AG. Federation (2003) 4 NWLR (Pt.809) 124 @ p. 179; Schroeder V. Major (1989) 2 NWLR (Pt.101); Emuze V. VC, University of Benin (2003) 10 NWLR (Pt. 828) 378.

It was also further submitted that under Section 21 of the Forestry Laws of Bendel State as applicable to Edo State the Governor of Edo State cannot exercise the powers of the Executive Council of Edo State when acting in the capacity of Governor and contended that to do so would amount to an abuse of powers and renders any acts or actions null and void and urged the Court to hold that Exhibit E being the product of such an abuse of power by the Governor of Edo State was ultra vires his powers and therefore, null and void contrary to the perverse finding by the Court below that Exhibit E was valid and to allow the appeal and set aside this perverse finding.

It was further submitted that the Appellants having not counter claimed for title against the Respondents had no onus placed on them which was not discharged contrary to the perverse

findings of the Court below shifting the onus of proof unto the Appellants away from the Respondents who bear the burden to prove their claimed title to the land in dispute and thereby defeated the cause of justice and contended that the Court below descended into the arena by making a case which the Respondents which they never made for themselves and urged the Court to hold that since the Governor has no powers to de-reserve a Forest Reserve he also would have nothing to convey to the Respondents under the principles of Nemodat quo non habet and to allow the appeal and set aside the judgment of the Court below. Learned SAN relied onL.B. Folarin V. Oyewole Durojaiye (1988) 1 NWLR (Pt. 70) 351 @ p. 362; Gbadamosi Rabiu V. Silifatu Abasi (1996) 7 NWLR (Pt. 462) 505 @ p. 512.

RESPONDENTS’ COUNSEL SUBMISSIONS
Learned Senior Advocate for the Respondents, Sir Chief Dr. Alfred O. Eghobamien SAN, had submitted that since the powers conferred on the Edo State Council to deal with Reserved Forest in Edo State was by virtue of a State Law contrary to the powers unambiguously vested in the Governor of a State to deal with all lands in the Urban areas of

a State by virtue of the Land Use Act 1978, a Federal Law, and thereby inconsistent, the Constitution gives the Governor the power to modify the State Law to bring in in line and consonance with the Federal Law and contended that the Governor of Edo State acted within the plenitude of the powers conferred on him by law when he issued Exhibit E in favor of the Respondents and urged the Court to hold that the Court below was right when it held that Exhibit E was valid and granted title to the land in dispute on the Respondents and thereby entering judgment for them against the Appellant and to allow the appeal and affirm the correct findings and decisions of the Court below in the judgment appealed against. Learned SAN referred to Sections 12 and21 of the Forestry Law, Law of Bendel State Cap. 59 Law of Bendel State of Nigeria as applicable in Edo State; Sections 1 (1)and315(3) and (5) of the Constitution of Nigeria 1999 (as amended); Sections 1 and 2 of the Land Use Act 1978.
It was also submitted that in law Exhibit E having been executed by Chief Lucky Nosakhare Igbinedion, the Executive Governor of Edo State on 27/10/2006 pursuant and by virtue of

the powers vested in him by law is valid as rightly held by the Court below and is therefore, not null and void as erroneously canvassed by the Appellants and contended that the Forestry Law Cap. 59 being a State law as an existing law under the Constitution if inconsistent with any of the provisions of the Constitution, as in the instant appeal vide Section 21 of the Forestry Law of Bendel State as applicable to Edo State, such law is to the extent of the inconsistent null and void and or modified by the provisions of the Constitution and urged the Court to hold that the powers vested on the Governor by the Land Use Act, a Federal Law, supersedes the same powers conferred on the Edo State Executive Council by the Forestry Law, a State Law and to dismiss the appeal for lacking in merit and to affirm the correct findings and judgment of the Court below. Learned SAN referred toSections 1(3) and 315(5) of the Constitution of Nigeria 1999 (as amended); Sections 1 and 2 of the Land Use Act 1978; Section 21 of the Forestry Laws of Bendel State as applicable to Edo State.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
Learned Senior Advocate for the

Appellants had in his reply on law rehashed virtually all his earlier submissions in the Appellants’ brief and had proceeded to submit that the claim of the Respondents was hinged upon the fact that their fore fathers deforested the land in dispute and that they have been farming thereon and have been in effective, continuous and undisturbed possession of the land in dispute from time immemorial without any let or hindrance until the British acquired the land in dispute and further that the Edo State Governor had de-reserved the reserved forest and validated their possession and legal right over the land in dispute as in Exhibit E and contended that in order to succeed the Respondents must prove that the land in dispute was traditionally owned by them and as a result was accordingly de-reserved in their favour and urged the Court to hold that the Respondents failed to discharge this all important onus placed on them by their own pleadings and to allow the appeal and set aside the perverse judgment of the Court below. Learned SAN relied on Akinloye V. Eyiyola (1968) NMLR 92; Ohiaeri V. Akabeze (1992) 2 NWLR (Pt. 221) 1; Eze V. Atasie (2000) 10 NWLR (pt.

676) 470.

It was also submitted that the Respondents have made desperate effort to pursue a case in this Court different from what they put forward in the Court below in that they began by claiming traditional ownership of the de-reserved land but having found themselves on slippery ground, somersaulted to cling to the provisions of the Land Use Act vide Exhibit E which has been shown to be null, void and ineffective and urged the Court to hold that in law the Respondents cannot be allowed to change their case and present before this Court a case different from the case they had presented before the Court below and to allow the appeal and set aside the judgment of the Court below and dismiss the Respondents’ Suit for lacking in merit. Learned SAN relied on Adegoke Motors Ltd V Adesanya (1989) 3 NWLR (Pt. 109)250 @ pp. 266- 267; Edebiri V. Edebiri (1997) 4 NWLR (Pt. 498) 165 @ p. 174; SGF V. SGB (Nig) Ltd (1997) 4 NWLR (Pt. 497) 8 @ p. 20; Akuneziri V. Okenwa (2000) 12 SC (Pt. II) 75.

RESOLUTION OF THE SOLE ISSUE
My lords, the sole issue for determination, encompassing Grounds 1, 3, 4, 5 and 6 of the Grounds of Appeal frontally calls into

question the review of the pleadings, evaluation of evidence, findings and decisions of the Court below as to whether or not proper evaluations were carried out and whether or not the findings and decisions arrived at the by the Court below were correct on the issues as joined by the parties in their pleadings and the evidence led thereon. 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 the grant the claims of the Respondents, 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 in granting the claims of the Respondents.
Now, when in an appeal it is alleged that the judgment appealed against is against the weight of evidence, as in ground one of the Notice of Appeal dated 19/8/2016, it is simply a call on this Court to review and re – evaluate the evidence in the printed record to determine if the Court below properly evaluated

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

(2004) 12 NWLR (Pt. 888)520.
Thus, even where the appellate Court comes to the conclusion that there is need to re – evaluate the evidence, it must be borne in mind that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, and therefore, once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court should not interfere once the conclusions reached is correct, even if the reason turns out to be wrong. This is so because in law an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong; that is the law. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu18 WACA 46.
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 moved is under a bounden duty to intervene to evaluate the evidence as in the 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, where Oputa, JSC, (God bless his soul) had opined inter alia thus:
“There is a duty on a trial Court to receive all available evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence”
See also Tangale Traditional Council V. Fawu (2001) 17 NWLR (Pt. 742) 330 @ pp. 335 – 336.
In law, 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. SeeAlake V. State (1992) 9 NWLR (Pt. 265) 260. See also Dantiye & Anor V. Kanya & Ors (2008) LPELR – 4021 (CA); Afemai Microfinance Bank Ltd V. Seacos Nig. Ltd (2014) LPELR – 22583 (CA).

So, as between the Respondents, who were Claimants before the Court below and the Appellants, who were Defendants before the Court below, who are the persons entitled to the ownership of the land in dispute? Was the Court below right when it held that as between the Respondents and Appellants, it was the Respondents who proved and were 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 proof of their case, the 1st Respondent, Solomon Ugiagbe testified as

PW1. He stated inter alia that the Respondents are members of Evbuowe, Evbuoghodo and Idemudia communities of Oredo Local Government Area and that the land in dispute measuring about 30.315 hectares forms part of the area acquired for forest reserve in the 19th century, which land was deforested by their forefathers for farming. However, on 2/6/2006, the Edo State Government de-reserved the land in dispute for them to use for industrial development. Sometime in 2009 the Appellants trespassed on the land in dispute, which is different from and outside the area carved out for the Appellants, by building illegal structures on the land in dispute. The previous evidence of the Respondents’ surveyor before Hon. Justice Acha was admitted in evidence as Exhibit B. A survey Plan NO ISO/ED/D46/2010 was admitted in evidence as Exhibit C, while a certified copy of the Observer Newspaper dated 29/1/2003 was admitted as Exhibit D1, and a revenue receipt was admitted as Exhibit D2. The Edo State of Nigeria Gazelle No 51 Vol. 17of 6/12/2007 was admitted in evidence as Exhibit E. He was cross examined but was not shaken in any material particulars on the facts in issue

as joined between the parties but he admitted that the Appellants’ community have common boundary with the Respondents’ community.

In their defense, the Appellants called one Surveyor John E. Anoawho testified as DW1. He stated inter alia that he was commissioned and carried out a survey of Ulemon village and the Map of part of Government reserved forest along Ogba River was admitted in evidence as Exhibit F. The land in dispute survey plan produced by him was admitted as Exhibit G, wherein the portion of the Appellants’ Ulemon community land erroneously de-reserved and granted to for the Respondents’ communities of Evbuowe ,Efionaye, Evbuoghodo and Idemudia village was verged green and that on Exhibit E, the de-reserved portion does not strictly correspond to the area claimed by the Respondents in their Exhibit C. He was cross examined and he stated that he did not superimpose the coordinates in Exhibit E in Exhibit G but established it himself.

DW2, was one Raphael Imonina. He testified inter alia that his grandfather was the first Urhobo man to set up a camp in Ulemon community and that his father and himself were born and

raised in Ulemon. He stated Odibo camp does not once belong to the Respondents. He cross examined and he admitted that he was aware that the land in dispute was declared forestry reserve by the Colonial masters but maintained that it was never acquired by the Government. However, he was not aware if the Respondents applied to the Government to de-acquire the land as he only became aware when they encroached on the land in dispute in 2003, which encroachment was protested against by the Appellants’ community through their legal adviser.

DW3, was one is Felix Eguaogie Otabor. He testified inter alia that his paternal grandfather is from Ulemon, while his paternal grandmother is from Uholor community and that during the Colonial period portion of the Appellants’ Ulemon community land was declared as forest reserve including the area in dispute and that the Respondents had no house or farmland within the forest reserve. He stated that the Edo State Government did not acquire forest land as State land and that the Colonial Government only administered the forest reserve while the owners of the land remain vested in the Appellants as the Edo State

Government merely took over management of the forest at Nigeria’s Independence. He was cross examined and he maintained that he only became aware of Exhibit E when the Respondents’ Suit was filed and does not know DW1 and did not show him the boundaries of the land in dispute.

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 20/7//2016,and appealed against by the Appellants, held inter alia thus:
“…The Government of Edo State by Exhibit E, Edo State Gazette No.51 Vol. 17 EdoState Notice No.61 dated the 6/12/2007, de-reserved 40.315 hectares for Evbuowe Effionayi, Evbuoghodo and Idemudia Communities for their immediate development. Any fact stated in an official Gazette constitutes a notice to the whole world… As documentary evidence, the contents of a gazette is prima facie proof of any fact of a public nature which the gazette is intended to notify…DW2 and DW3, stated they were not aware of Exhibit E Ignorance of the content of the gazette is no defense… From the pleadings of the Claimants and Defendants it is

admitted by the parties that the land in dispute was declared a forest reserve by the Colonial government… By Paragraph 34 of the Statement on oath of Claimant they pleaded that their founder is one Owe who migrated from Iguinean village and settled in Ogba forest reserve… One of the recognized way of providing title to land is by production of a valid instrument… Consequently, I hereby enter judgment for the Claimant…” See pages 247 – 273 of the Record of Appeal.

(2013) All FWLR (Pt. 688) 870 @p. 893; Nruamah V. Ebuzoeme (2013) All FWLR (Pt. 681) 1426; Kano V. Maikaji(2013) All FWLR (Pt. 673) 1856 @ pp. 1868 – 1869; Ojah V. Eviawure (2000) FWLR (Pt. 57) 163; Okorie V. Onyejewu (2001) FWLR (Pt. 41) 1820; Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612; Egbo V. Agbara(1997) 1 NWLR (Pt. 481) 293 @ p.303; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 @ p. 133; Romaine V. Romaine (1992) NWLR (Pt. 235) 650.
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.”

Going by their pleadings, it would appear that the Respondents by their principal relief, as even conceded by the Appellants, relied principally on the de – reservation

of part of the reserved forest and release of same to them by the Governor of Edo State on 27/10/2006 through the instrumentality of Exhibit E.

The Respondents had in their Statement of Claim averred inter alia as follows, namely:
6. The Edo State Government caused to be published in the Nigerian Observer of Wednesday, 29/1/2003 of the Edo State Government’s intention to de-reserve some hectares of land for the Plaintiffs for industrial development. The Certified True Copy of the Newspaper shall be relied upon at the hearing.
7. That on 2/6/2006, the Edo State Executive Governor, His Excellency, Chief Lucky Nosakhare Igbinedion graciously approved for the Plaintiffs including Effionayi Community approximately 40.315 hectares of forest land for their immediate development and use in fee simple. A certified true copy of the approval letter with Ref No. FR/22/125 dated 2/6/2006 shall be relied upon at the hearing.
12. The Plaintiffs aver that after the filing of the Suit, their Surveyor, Surv. F. U. Iyawe following the order of the Court in Suit No. B/333m/2010 involving same parties was granted leave to carry out litigation survey on the

land in dispute which certified true copy of the litigation survey plan shall be relied upon at the hearing. See pages 4 – 6 of the Record of Appeal.

It was on the face of the above very clear and express averments in the Statement of Claim of the Respondents that the Appellants had in paragraph 5 of their Statement of Defense averred thus:
5. The Defendants aver that they are not in a position to admit or deny paragraphs 6, 7 and 12 of the statement of Claim. See page 79 of the Record of Appeal.

In law, any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed or denied by that party in his pleadings to give rise to a joinder of issues between the parties. However, where the other party fails to effectively traverse or deny the averments or where he does so evasively, he would be deemed to have admitted those averments. I therefore, deem paragraph 6, 7 and 12 of the Respondents’ Statement of Claim admitted by the Appellant vide their evasive traverse in paragraph 5 of their Statement of Defense. There was therefore, in my view, no further duty on the Respondents to prove

the facts as averred to by them in these paragraphs, those facts having been deemed admitted by the Appellants. See UBN Plc. V. Chimaeze (2014) 9 NWLR (Pt. 1411)166 @ p. 175. See also Tukur V. IPES. Ltd(2014) 17 NWLR (Pt. 1437) 575 @ p. 580; Ajibulu V. Ajayi(2014) 2 NWLR (Pt.1392) 483 @ p. 489.

However, by paragraph 5 of their Statement of Claim, the Respondents had proceeded to aver as follows:
5. Evidence shall be led that the Plaintiffs’ fore fathers deforested the land in dispute and the Plaintiffs have been farming there and have been in effective, continuous and undisturbed possession of the land in dispute from time immemorial without any let or hindrance until British Government acquired the land in dispute. See page 4 of the Record of Appeal.

It was the above averment, it seems clear to me that has given rise to the contention by the Appellants that the Respondents had relied on evidence of traditional history of their title and having failed, according to the Appellants, to substantiate their traditional history ought not to have been granted title to the land in dispute by the Court below.
In dealing with the evaluation of

the evidence and the findings and conclusion reached thereon by the Court below in the light of the call on this Court by the Appellants to re-evaluate the evidence on the printed record, three crucial questions must first be answered, namely: a. What is the root of title relied upon by the Respondents from their pleadings and the evidence led thereon?, b. Who as between the Respondents and the Appellants proved and are thus entitled to the title to the land in dispute by credible and cogent evidence as required by law?, and c. Whether the Court below was right to have granted title to the land in dispute to the Respondents against the Appellants?

From the averments in the Statement

of Claim, and as even clearly reflected in their relief number one, the principal root of title relied upon by the Respondents is by production of title documents, namely Exhibit E, which form the crux of their pleadings in paragraphs 6 and 7 of the Statement of Claim, which the Appellants by their evasive traverse are deemed to have admitted. This ordinarily, in my view, settled the issue of proof of the Respondents’ title by production of title document as in Exhibit E. However, the Court below had upon evaluation and ascription of probative value thereon found that Exhibit E was validly made by the Governor of Edo State and thus constituted a valid grant of the land in dispute to the Respondents.
The Appellants had contended that the proper authority to act under the Forestry Law of Edo State to de – reserve a forest reserve for the purposes of releasing or granting it to any person is the Edo State Executive Council and not the Governor of Edo State. Consequently, they had further contended and very vehemently too that Exhibit E was ultra vires the powers of the Governor of Edo State and therefore, invalid, null and void and thus conferred no

title to the land in dispute on the Respondents, contrary to the findings of the Court below, which they further contend was perverse and should be set aside by this Court.
In response, it was contended for the Respondents that in so far as the Forestry Law of Edo State purports to confer on the Edo State Executive Council powers to deal with land in an Urban Area of the State, it is clearly inconsistent with the provisions of the Land Use Act and therefore, to the extent of the inconsistency null and void and of no effect and thus not in any legal way adversely affect the powers vested on the Governor of Edo State to deal with the land in dispute situate in an Urban Area of the State.
Now, by Section 21 of the Forestry Law Cap 59 Laws of Bendel State of Nigeria 1976 as applicable to Edo State, it is provided as follows:
21: The Executive Council on the advice of the appropriate authority may by order published in the State Gazette direct that from a date named therein any lands or any part thereof constituted a forest reserve under Section 12 of this Law shall cease to be a forest reserve or a part of such reserve and thereupon from such date

such lands shall cease to be a forest reserve or a part of such reserve: Provided that the rights, if any, which may have been extinguished therein shall not revive in consequence of such cessation.
However, by Section 1 of the Land Use Act 1978, it is provided thus:
1: Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation is hereby vested in the Governor of that State, and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.
Furthermore, by Section 2 of the Land Use Act 1978, it is provide as follows:
2(1): As from the commencement of this Act–
(a) all land in urban areas shall be under the control and management of the Governor of each state.
It would, in my view, also be pertinent to reproduce part of the contents of Exhibit E, to aid proper analysis and sound judgment on this issue, as follows:
“ISSN 0331-/783, Edo State of Nigeria Gazette. Published By Authority No. 51 Benin City 6th December, 2007 Vol. 17. CONTENT: Land Deaquisition by the Government of Edo

State of Nigeria…Page 107-108. Edo State Notice No. 61 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999. In exercise of power conferred on me by section 315(2) of the Constitution of the Federal Republic of Nigeria 1999and by virtue of all other powers enabling me in that behalf, I, CHIEF LUCKY NOSAKHARE IGBINEDION, Executive Governor of Edo State of Nigeria hereby make the following order: That all that parcel of land at Ogba Forest Reserve in Oredo Local Government Area of Edo State of Nigeria containing an area of approximately 40.315 hectares, de-reserved for Evbuowe, Efionayi, Evbuoghodo and Idemudia communities, forthwith for their immediate development… Dated this 27th Day of October, 2006. Chief Lucky Nosakhare Igbinedion, Executive Governor, Edo State of Nigeria” See pages 96- 97 of the Record of Appeal.
Having carefully scrutinized and considered the relevant provisions of the Edo State Forestry Law on whose person or authority has the powers to deal with Forestry lands in Edo State and the relevant extant provisions of the Land Use Act as to who has the power to deal with all lands in Edo State, it does appear to me,

and I so hold, that there is a glaring inconsistency between these two laws as to the person or authority who has the power to deal with lands in Edo State. Whilst under the Edo State Forestry Law, the power to deal with forestry land in Edo State is vested on the Edo State Executive Council, but under the Land Use Act the powers to deal with all lands situate in the Urban Area of Edo State are vested in the Governor of Edo State.
So, who as between the Edo State Executive Council and the Governor of Edo State has the legal authority and powers to issue the directives amounting to a grant of land as in Exhibit E?
I have taken time to review the submissions of learned Senor Advocates for the respective parties in this Appeal and have considered the findings of the Court below, and it does appear to me that going by the succinct provisions ofSections 1 and 2 of the Land Use Act 1978, the power to deal with land in Edo State is vested in the Governor of Edo State and not on the Edo State Executive Council as purported to have been provided by Section 21 of the Forestry Law of Edo State. It follows therefore, the provisions of Section 21 of the Forestry Law of Edo State.

a State law, being inconsistent with the provisions of Sections 1and 2 of the Land Use Act, a Federal Law, is to the extent of the inconsistency null and void and the Governor of Edo State is, in my view, empowered by law to modify it to bring it into conformity and in line with the Land Use At 1978 to give purpose, clarity and effectiveness to the intention of the legislature for effective management and control of all land in the Urban Areas of Edo State by the Governor of the State. See AG. Abia V. AG. Federation (2003) 4 NWLR (Pt. 809) 124 @ p. 179.
Thus, the submission to the above effect by the Respondents is therefore, in my view, apt, sound and unassailable. I accept it as correct and hold firmly that the Court below was right and on firmer ground when it held that Exhibit E, issued on 27/10/2006 by the Governor of Edo State within the plenitude of powers conferred on him by law was valid and did confer on the Respondents the right of ownership over the land in dispute. This finding is both impeccable and unimpeachable and must be allowed to stand in this appeal! See Section 21 of the Forestry Law, Law of Bendel State Cap. 59 Law of Bendel State of Nigeria as applicable in Edo State.

See also Sections 1 (1) and 315(3) and(5) of the Constitution of Nigeria 1999 (as amended), andSections 1 and2 of the Land Use Act 1978.
My view as expressed above remains the same notwithstanding the fact that the Governor of Edo State is also the Head of the Edo State Executive Council yet in law there is a fine distinction between the Governor qua Governor of Edo State and the Governor as Head of the Edo State Executive Council in relation to exercise of specific powers conferred on either the Governor or the State Executive Council.
Thus, in law the Governor of Edo State acting qua Governor is not the same as the Governor acting as the Head of the Edo State Executive Council. It follows therefore, and I so hold firmly that where a power is vested directly and solely on the Governor of Edo State acting qua Governor, it is only the Governor of Edo State that can exercise such powers and not the Edo State Executive Council as being erroneously canvassed in this appeal by the Appellants contrary to the sound and correct findings of the Court below. See Emuze V. VC, University of Benin (2003) 10

NWLR (Pt. 828) 378. See also Anyah V. Iyayi (1993) 7 NWLR (Pt. 305) 290; Garba V. University of Maiduguri(1986) 1 NWLR (Pt. 18) 550.
In law therefore, Exhibit E is valid and subsisting having been duly made by the Governor of Edo State. This is so because Sections 12 and 21 of the Edo State Forestry Lawconferring on the Edo State Executive Council the power to de – reserve a reserved area, amounting to a grant of same, having been held earlier in this judgment as being clearly inconsistent with the provisions of Sections 1and 2 of the Land Use Act 1978 conferring such powers on the Governor of Edo State in respect of all lands situate in the Urban Areas of Edo State, such as the land in dispute, the person with the power and authority to issue Exhibit E is the Governor of Edo State and not the Edo State Executive Council and therefore, Exhibit E issued by the Governor of Edo State is valid and cannot be set aside as rightly held by the Court below. Thus, in law Exhibit E cannot be issued by the Edo State Executive Council, which lacks the vires to so issue it.

Having dealt exhaustively with the issue of the validity and legal effect of Exhibit E,

let me now proceed to consider the issue of traditional history of title to the land in dispute as canvassed copiously by the Appellants. But first, it does appear to me that the Respondents left neither the Appellants nor the Court below in any doubts as to their principal root of title to the land in dispute as pleaded by them throughout the gamut of their Statement of Claim. They gave adequate notice of their claim to the title to the land in dispute to be rooted in Exhibit E and that although they are the owners of the land in dispute through their forebears who deforested and first settled thereon by evidence of traditional history, yet the Appellants seem to now contend in this Appeal that the crux of the claim of the Respondents to their root of title to the land in dispute was evidence of traditional history and not Exhibit E issued to them by the Governor of Edo State.

It therefore, seems a little odd, or should I rather say strange, to me that the Appellants who had made a heavy weather of Exhibit E, before the Court below as in the Record of Appeal, as not being capable of conferring any title to the land in dispute on the Respondents since it

was not issued by the Edo State Executive Council as required by Section 21 of the Edo State Forestry Law, appear to have jettisoned the very crux of that contention on the validity of Exhibit E to now contend in this Appeal that the Respondent did not prove their root of title by means of evidence of traditional history of title to the land in dispute.

The Appellants knew and were not left in any dark or guessing as to the case of the Respondents in their claim before the Court below and cannot now change the goal post, and would not be allowed such luxury even if they so intend, to contend that the Court below ought to have dismissed the Respondents’ Suit for failure to make out their title to the land in dispute through evidence of traditional history.

My lords, the law is now well settled that notwithstanding the difficulty of discerning absolute truth by the mechanism of litigation and judicial discernment hinged upon evidence before the Court and irrespective of the imperfections of men, the litigation process is aimed at finding out the truth according to law and therefore, a party worthy of favourable consideration of the Court must

endeavour to be consistent in both the facts he pleads and the evidence he leads in proof of those facts, as well as counsel also being consistent in the case they present for the litigants both before the trial Court and this Court.
Thus, whilst a party will not be allowed to present at the trial evidence which are inconsistent with the case he has pleaded, so also should a counsel not indulge himself in putting forward or holding unto obviously inconsistent positions or presentations in his submissions on behalf of the litigants. Indeed, consistency is the very first hall mark of truth in a case and also of excellence of a legal practitioner. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248; Ezemba V. Ibeneme (2004) 14 NWLR (Pt. 894) 617.

Having remarked as above, I shall consider the issue of the alleged failure to prove the Respondents’ title to the land in dispute by means of evidence of traditional history as canvassed by the Appellants in this Appeal, which as I had earlier reiterated was not the principal root of title relied upon by the Respondents, though there was an averment, albeit briefly, in Paragraph 5 of the Statement of Claim

as to the traditional history of their title.

It needs to be pointed out at once that in law a party claiming title to land has open to him one or more of five methods of proving title to land and any of which if sufficiently made out would suffice and none of which five method is higher than the other. The party may also rely on a combination of one or more of the five methods in proof of his title to land.
However, where a party relies on more than one of the five methods of proof of title to land, he is not under any obligation to prove all the methods relied upon before he could succeed once he is able to prove sufficiently even one of the more than one methods relied upon by him that would suffice to ground his claim for title to land.
Let me explain! Where for instance, a party claiming declaration of title to land relies on production of title documents and evidence of traditional history as his roots of title to the land in dispute but at the trial was only able to prove his title by production of valid title documents, his case would still succeed notwithstanding the fact that he had not been able to prove the other method of evidence

of traditional history also relied upon by him as his root of title.
The above is so because, as I had earlier stated and which is the trite position of the law, a party claiming title to land can succeed in his claim by proof of any one of the five methods of proof of title to land. He need not prove more than one root of tile to succeed. It is thus, immaterial whether he had relied on two or more of the five methods of proof of title to land, since proof of any one of the five methods of proof of title to land, sufficiently to the satisfaction of the Court, would suffice.

Let me now consider, assuming for a moment but not so holding that the Respondents’ root of title pleaded and relied upon by them was evidence of traditional history, whether that root of title was also proved by them to entitle them to the judgment of the Court below?

The Respondents pleaded their traditional history of title to the land in dispute in paragraph 5 of the Statement of Claim. Since pleading is not evidence, they led evidence through the PW1 in support of this mode of proof of title to land. The PW1 was not even cross examined on this point of fact

throughout the gamut of his cross examination evidence. Evident therefore, from the unchallenged evidence of the PW1 is the traditional history that the land in dispute formed part of a larger area of land reserved for forest reserve in the 19th Century and that one Owe was the founder of the land, who migrated from Iguihean village. It is also his evidence that the Respondents’ forefathers deforested the land in dispute for farming. However, upon the area being reserved as Forest Reserve, it became the property of the Government and remained so even after Nigeria gained her Independence in 1960, until it was de- reserve and granted to the Respondents for developmental purposes by the Governor of Edo State on 27/10/2006 vide Exhibit E.

(1975) 1 SC 215. See also Ani V. Ewo (2004) 1 SC 115; Lawani Alli & Ors. V. Chief Gbadamosi & Ors. (2000) 6 NWLR p. 233; Oyadare V. Keji (2005) 7NWLR (P1. 925) 571.
In other words, a party seeking a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say, he must demonstrate in his pleading the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Thus, where a party has not given such sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim. See Hyancith Anyanwu V. Robert Achilike Mbara (1992) 5 SCNJ. 90; Idundun V. Okumagba (1976) 9-10 SC 224; Atanda V. Ajani(1989) 3 NWLR (Pt. 111) 511.

I have taken time to review the pleadings of the parties, evaluate the pieces of evidence led by them thereon and considered the position of the law relating to proof of title by means of evidence of traditional history, and I find that the Court below was right when it found that the

Respondents, in addition to the proof by Exhibit E, also proved their title to the land in dispute by means of evidence of traditional history as required of them by law through the unchallenged evidence of PW1.

I therefore, do not see any reason to interfere with or disturb these correct finding of facts by the Court below which had duly discharged its duty of evaluation and ascription of probative value to all the pieces of admissible evidence and found the weight of evidence to preponderate in favor of the Respondents against the Appellants. I also find that the Respondents proved their title to the land in dispute by means of their evidence of traditional history of title to the land in dispute, in addition to the proof already by means of production of title document as in Exhibit E.Thus, in whatever way the pleadings and evidence of the parties is looked and considered and no matter how many times this is done, it is quite apparent that the Respondents proved their title to the land in dispute fair and square as required of them by law and were therefore, entitled to the judgment of the Court below as was rightly entered in their favor.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Indeed, the Court below carried out its duty of evaluation very seriously and insightfully and did arrived at very sound and correct findings of facts on which it made its resultant decision finding in favor of the Respondent against the Appellant. I endorse those findings of facts as apt and correct and cannot but allow them to stand. There is therefore, no legal basis on which the decision of the Court below can be upturned on the facts.
In such circumstances, where the findings and the resultant decision thereon is correct, an Appellate Court would not interfere with or disturb neither such correct findings nor decision. In law, where a trial Court, such as the Court below, had carried out its duty of proper evaluation of the evidence led by the parties in the light of the averments in their pleadings and had come to the correct finding of facts and reached the right decisions, an appellate Court, such as this Court would lack the vires to interfere with or disturb such correct findings of the Court below.
I find the decision by the Court below granting the title to the land in dispute to the Respondents as against the Appellants as correct

and have no reason whatsoever, since none has been made out by the Appellants, to interfere with and disturb this correct finding of the Court below, a power which an appellate Court does not in fact and in law have interfering with and disturbing a correct finding by a trial Court. That is certainly neither the duty nor business of an appellate Court. SeeAlhaji 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: Oni V. Johnson(2015) LPELR- 24545 (CA); Balogun V. Agboola (1974) 1 All NLR (Pt. 2) 66.
In the light of all I have said and held above that the Court below was right

in its findings and conclusions reached in granting all the reliefs claimed by the Respondents against the Appellants, this Appeal is bereft of any iota of merit. Consequently, the sole issue for determination is hereby resolved against the Appellants in favor of the Respondents.

On the whole therefore, having resolved the sole issue for determination in this Appeal against the Appellant in favor of the Respondents. I hold that this Appeal lacks merit and is accordingly, hereby dismissed in its entirety.

In the result, the judgment of the High Court of Edo State. Coram: G. O. Imadegbelo J., in Suit No. H/409/20108: Mr Solomon Ugiaghe & Ors V. Mr. Uyiekpen Ale & Ors delivered on 20/7/016, wherein the claims of the Respondents were granted against the Appellants, is hereby affirmed.

There shall be cost of N200,000.00 against the Appellants in favor of the Respondents.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother, Biobele Abraham Georgewill, JCA.

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

I abide by the order as to costs.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the opportunity of reading in advance the Judgment just delivered by my learned brother, GEORGEWILL, JCA and I am in complete agreement with his reasoning and the conclusion reached.

I too dismiss the appeal as totally lacking in merit; and affirm the judgment of the Court below. I abide by the order as to costs.

Appearances:

CHIEF H. O. OGBODU, SAN LEARNED SENIOR ADVOCATE with him, OKUNS AIHIE, ESQ. For Appellant(s)

O. OJUMAH, ESQ., FOR SIR CHIEF DR. ALFRED O. EGHOBAMIEN, SAN LEARNED SENIOR ADVOCATE For Respondent(s)