ANDREW AYEMWENRE, ESQ v. FESTUS EVBUOMWAN (2019)

ANDREW AYEMWENRE, ESQ v. FESTUS EVBUOMWAN

(2019)LCN/13021(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of April, 2019

CA/B/49/2013

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

ANDREW AYEMWENRE, ESQ. Appellant(s)

AND

FESTUS EVBUOMWAN Respondent(s)

RATIO

THE ONUS OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

Now the law is settled that in an action for declaration of title to land the onus lies on the party claiming title to satisfy the Court that he is entitled on the evidence brought by him for declaration of the piece of land claimed. In other words, the onus is on the plaintiff to satisfy the Court that he is entitled on the evidence adduced by him to a declaration of title. See KODILINYE VS. MBANEFO ODU (1935) 2 WACA 336; OLOWOSAGO VS. ADEBANJO & ORS. (1988) LPELR 2601 (SC); AWOMUTI VS. SALAMI (1978) 3 SC 105; ODUTOLA VS. AILERU (1985) SC 188; ADEGOKE VS. ADIBI & ANOR. (1992) 5 NWLR (PT. 242) 410; OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849) 326. PER OSEJI, J.C.A.

METHODS OF PROVING TITLE TO LAND

It is also settled law by virtue of the authority of IDUNDUN & ORS. VS. OKUMAGBA (1976) 10 SC 277 that title to land can be proved by the following methods:
?(a) Proof by traditional evidence or history.
(b) By grant or the production of document of title.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such acts are true owners of the land.
(d) Proof by acts of long possession.
(e) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute. See also ODUNZE & ORS. VS. NWOSU & ORS. (2007) 13 NWLR (PT. 1050) page 1; MADU VS. MADU (2008) 2 ? 3 SC (PT. II) 109; AYANWALE VS. ODUSAMI (2011) 12 SC (PT. III) 59.
It is equally trite law that a party to a land in dispute may plead and prove his title in any of the five recognised ways because all the modes of proof of title as earlier enumerated are independent of each other and none of them is superior to the other. VideIDUNDUN v. OKUMAGBA supra; OWHONDA VS EKPECHI (supra). Consequently, where traditional evidence fails, a party may still rely on any of the four other modes to prove title to the land in dispute.
See also OGBUOKWELU VS. UMEANAFUNKWA (1994) 4 NWLR (PT.341) 676; NWOSU VS. UDEAJA (1990) 1 NWLR (PT. 125) 188. PER OSEJI, J.C.A.

WHETHER OR NOT PARTIES ARE BOUND BY THER PLEADINGS

The law is settled that parties are bound by their pleadings and any evidence which is not derived from the facts pleaded goes to no issue. SeeEMEGOKWUE VS. OKADIGBO (1973) 4 SC 113; ADEYERI & ORS. VS. OKOBI & ORS (1997) 6 NWLR (PT. 510) 534; GEORGE & ORS. VS. DOMINION FLOUR MILLS (1963) 1 All NLR 71; RAIMI V. OGUNDANA & ORS. (1986) 3 NWLR (PT. 26) 97; OGBODA VS. ADULUGBA (1971) 1 All NLR (PT. I) 71: ERONINI & ORS. VS. IHEUKO (1989) 2 NWLR (PT. 101) 46. PER OSEJI, J.C.A.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State sitting in Benin City and delivered on the 20th day of July, 2012 wherein the plaintiff?s (now Appellant) claim was dismissed.

By a writ of summons dated 21/6/1990, the Appellant herein as plaintiff commenced an action against the defendant (now Respondent) and as per the amended statement of claim filed on 10/8/1993, the Appellant claimed the following reliefs in paragraph 12 (a ? c) thereof:
?Whereof the Plaintiff claims against the Defendant as follows:
(a) A declaration of possessory title and/or that the Plaintiff is entitled to the statutory rights of occupancy to ALL THAT piece or parcel of land lying and situate at Ugbor village ward 36A, Benn City which parcel of land the Plaintiff acquired and vested in him under the Bini Customary Law prior to the Land Use Act. The said land in dispute is more particularly described and delineated in Amended survey plan No. ISO/BD/1907/90 which will be relied upon in this action.
?(b) Peaceful and Lawful possession and

thereafter started buldozing the same and erecting buildings thereon without the consent or authority of the plaintiff. Inspite of the Plaintiff?s repeated warnings to the Defendant, the trespass continued unabated.
(c) An order of perpetual injunction against the Defendant, his agents, servants or privies from further acts of trespass on the land in dispute.?

The Respondent (as the Defendant in the lower Court) reacted by filing a statement of defence dated 26/1/1995 but the extant Respondent?s pleading is the 2nd further amended statement of defence filed on 21/7/2009.

?Briefly stated, the Appellant?s case is that sometime in 1994 he purchased three parcels of land which constitutes the land in dispute from three different persons, namely Osaheni Uwuigbe (DW1), Osasuyi Osunbor DW2 and Emmanuel Igbinoba. The said land situate at Ugbo village, Ward 36A, Benin City. The three persons who constitute his predecessors-in-title were each granted their various portions of land by the Oba of Benin under the Bini Native Law and Custom as per Exhibits B, E and H respectively. The three lands which also has ward survey beacons are

adjacent to each other and he was also issued with receipts of purchase by each of the vendors. He subsequently effected change of name in title to reflect his own name with respect to each of the three plots of land. Each of the vendors also took him to their respective parcels of land and showed same to him before he paid the purchase price.

He then cleared the land and maintained the survey beacons and was visiting same at intervals until sometime in 1989, he went there and discovered that the Respondent was erecting a storey building on part of the land and he confronted him but he was rebuffed. He consulted his lawyer to write to the Respondent and also met with the Ugbor Community but to no avail. Hence he commenced the action against the Respondent at the lower Court.

At the close of pleadings, the Appellant opened his case and called two other witnesses. Documents were also tendered and admitted in evidence as Exhibits ?A? to ?L?.
The Respondent in his defence testified personally and called five other witnesses.

The first trial was however stalled due to the death of the trial Judge Omorodion J.

Two of the witnesses for the defence also passed away subsequently and in the course of hearing before another Judge their previous evidence were introduced and admitted into the Court?s proceedings and marked Exhibit M.

At the conclusion of hearing the parties filed and subsequently adopted their written addresses.
Judgment in the suit was delivered on the 20th July, 2012 wherein the Appellant?s claim was dismissed.

Dissatisfied with the outcome of the said judgment the Appellant filed notice of appeal on 8/10/2012. The extant notice of appeal is the further amended notice of appeal filed on 12/6/17 and it contains nine grounds of appeal.

Briefs of argument were subsequently filed and served by the parties who also adopted and relied on same at the hearing of the appeal on 24/1/19.

The Appellant?s brief of argument was filed on 20/6/2016. Therein the following seven issues were formulated for determination.
?ISSUE I
In the light of the documentary evidence before the Court which showed that Exhibits B, E and H relate to the land in dispute, whether the learned trial Judge was right to have relied on the evidence

in chief of DW1 and DW2 to hold that the said Exhibits B, E and H do not relate to the land in dispute and thereby dismissed the Appellant?s case?
This issue is distilled from ground 1 of the grounds of appeal.
ISSUE II
Whether the evidence that the land of the Appellant was acquired by the Edo State Government was rightly received in evidence having neither been made by DW1 nay by any one else nor pleaded by any of the parties?
This issue is distilled from ground 2 of the grounds of appeal.
ISSUE III
Whether a failure on the part of the Appellant to call as a witness Mr. Emmanuel Igbinoba (one of his vendors) was fatal to his (Appellant) case, thus warranting the dismissal thereof by the learned trial Judge.
This issue is distilled from ground 5 of the grounds of appeal.
ISSUE IV
Whether the learned trial Judge was right when he placed on the Appellant the onus of proving extraneous issues or matters raised suo motu in his judgment notwithstanding that parties neither joined issues thereon nor addressed the court in respect thereof.
This issue is distilled from ground 7 of the grounds of appeal.<br< p=””

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ISSUE V
Whether the learned trial Judge was right when he held that the land in dispute is as shown on Exhibits A and N?
This issue is distilled from ground 8 of the grounds of appeal.
ISSUE VI
?Whether, despite the fact that the evidence of PW2 was in tandem with the credible oral and documentary evidence before the Court, the learned trial Jude was right to have discredited and disbelieved the evidence of PW2 on the basis that DW1 and DW5 said PW2 was not the private secretary of the Chairman of Ugbor Plot Allotment Committee?
This issue is distilled from ground 3 of the grounds of appeal.
ISSUE VII
Whether there was failure on the part of the learned trial Judge to evaluate the totality of the evidence before him ? oral and documentary, make appropriate findings thereon, which said failure led to a miscarriage of justice culminating in the dismissal of the Appellant?s suit, in other words, whether on the preponderance of evidence, the Appellant had proved his case and is thus entitled to judgment?
This issue is distilled from grounds 4, 6 and 9 of the grounds of appeal.?

In the Respondent?s brief of argument filed on 6/7/17, four issues were distilled for determination as follows:
?(1) Whether having regard to the contradictions and conflicts in the evidence of the Appellant and PW1 as to whether the beacon numbers on Exhibit B, E and H were on the land in dispute, the learned trial Judge was right when he held that the Appellant did not prove that the land in Exhibit ?B?, ?E? and H relate to the land in dispute.
(2) Whether having regard to the unpleaded and unproven unorthodox role allegedly played by the PW2 in the allocation of lands to Appellant?s predecessor in title DW1 and DW2?s denial of same, the learned trial Judge was right when he discredited and disbelieved the evidence of the PW2.
(3) Whether in the light of DW1 and DW2?s evidence denying the land in dispute as the location of the land they sold to the Appellant, the failure of the appellant to call Mr. Emmanuel Igbinoba (his third vendor) as witness is fatal to his case as held by the learned trial Judge.
(4) Whether having regard to the totality of both oral and documentary evidence adduced at

the trial, the learned trial Judge was right when he dismissed the Appellant?s case.

After a perusal of the parties pleadings and evidence as well as the judgment of the trial Court as contained in the record of appeal, I am of the firm view that an all encompassing sole issue shall suffice for the consideration of this appeal to wit:
?Whether having regard to the totality of both documentary and oral evidence adduced at the trial by the parties, the learned trial Judge was right to have dismissed the Appellant?s claim.?

As per their issue 1, learned counsel for the Appellant submitted inter alia that the issue whether Exhibits B, E and H relate to the land in dispute is quite obvious even as per the evidence of DW1 and DW2 because the said exhibits bore certain important features such as, description of the parcels of land they relate to with such degree of accuracy as would enable and guide a surveyor in producing a survey plan of the land. Also that evidence adduced before the Court show that Exhibit A was produced from Exhibits B, E and H by the PW1 and such evidence was not contradicted or challenged.

He added that as Exhibit A was the survey plan produced from Exhibits B, E and H and the said Exhibit A relates to the land in dispute as rightly found by the learned trial Judge, it was no longer open for him to hold that Exhibits B, E and H do not relate to the land in dispute on the basis of the evidence of DW1 and DW2 because that amounts to approbating and reprobating.

Therefore, if the learned trial Judge had evaluated the two versions of oral evidence from the hanger of the documentary evidence before him, he could not have wrongly relied on the oral evidence of DW1 and DW2 which are clearly in support of Exhibits B, E and H to the effect that the land in dispute was actually sold to the Appellant.

In their issue 2, learned counsel submitted that the learned trial Judge heavily relied on a strange evidence given by the DW1 to the effect that the Ugbor Community said that the Appellant?s land was acquired by the Edo State Government and based on it he dismissed the Appellant?s claim.

?He added that such piece of evidence have not been pleaded by any of the parties or proceeded from any of the witnesses, it follows that the learned trial

Judge raised the issue of acquisition suo motu and relied on it to reach a perverse decision.

On issue 3, learned counsel referred to the findings of the learned trial Judge at pages 128 to 129 of the record to submit that the learned trial Judge erred seriously to have dismissed the Appellant?s suit because he failed to call one Mr. Emmanuel Igbinoba as a witness and relied on Section 149(d) of the Evidence Act in doing so.

He therefore contended that where there is documentary evidence to prove a fact in issue as in this case where Exhibits B, E and H proved that the land in dispute was the one sold to the Appellant by the three separate vendors, oral evidence to prove the same fact in issue becomes unnecessary except to support the said documentary evidence, moreso that the exceptions to Section 137(1) of the Evidence Act do not apply thereto.

Also referring to the case of BONGO VS. GOVERNOR OF ADAMAWA STATE (2013) 2 NWLR (PT. 1339) 403 at 444, it was submitted that the oral evidence of Emmanuel Igbinoba cannot alter the contents of Exhibits ?A? and ?H? by virtue of Section 128 of the Evidence Act.

It was further posited that, had the learned trial Judge found rightly that Exhibits B, E and H relate to specific parcels of land which were identified and delineated by numbered beacon blocks and which numbers were stated on Exhibits B, E and H from which Exhibit ?A? was produced by the surveyor, he would have come to the right conclusion without Mr. Emmanuel Igbinoba being called as a witness to testify on same. Therefore the provisions of Section 149 (d) of the Evidence Act, 2004 does not apply in the instant case.

On issue 4, it was submitted that Exhibits B, E and H are documents which contain sufficient particulars describing the land that each of them relates to such a degree of accuracy as would enable and guide in producing a survey plan on the land and the PW1 did testify and he relied mainly on the said exhibits to produce Exhibit ?A? the survey plan and the evidence was not challenged with regard to beacon numbers.

He therefore contended that it was wrong for the learned trial Judge to suo motu raise the issue of the authenticity of the beacon blocks on the land in dispute without affording the

parties the opportunity to address the Court on it, such issue having not been pleaded or given in evidence by any of the parties, learned counsel further submitted that the finding of the trial Judge that the alleged beacon blocks were planted there to give a semblance of originality was speculative and perverse because such finding is not borne out of the pleadings and evidence of the parties.

On issue 5, learned counsel pointed out that in Exhibit A, the Etete Layout Road is outside the land depicted therein, whereas in Exhibit N, Etete Layout Road divided the land depicted therein into two halves and part of the land is shown to have been acquired by the Edo State Government but in Exhibit A, no part of the land is shown to be subject of any acquisition by government. Furthermore, in Exhibit ?A? Etete Layout area is separated by Etete Layout Road from the land whereas in Exhibit N, Etete Layout is not shown to be in existence.

It was then submitted that Exhibit N is not the same with Exhibit ?A? which is the actual plan that defines the land in dispute moreso that the Respondent did not file any counter claim.

Vide MOMOH VS. UMORU (2011) 15 NWLR (PT. 1270) 217.

Counsel added that by holding that Exhibit N is also the land in dispute which the Appellant claimed, the learned trial Judge misconceived the case and evidence before the Court and this led to a perverse decision.

On issue 6, learned counsel submitted that as Exhibits B, E and H support the oral evidence of the PW2, such evidence is therefore credible and deserve to be acted upon by the Court. Therefore the learned trial Judge was wrong to have discountenanced the entire evidence of the PW2 in preference for the simple ipsi dixit of the DW1 and DW5 thereby reaching a perverse decision.

On issue 7, learned counsel submitted that the learned trial Judge did not evaluate any piece of evidence adduced at the trial and moreso the Appellant?s evidence. He added that upon a proper evaluation of the totality of the evidence before the Court having regard to the pleadings of the parties and the applicable law thereof, the only irresistible conclusion would have been reached that Exhibits B, E and H showed that the land in dispute is the land actually sold to the Appellant in which case the consideration whether or

not the DW1 and DW2 are witnesses of truth would have been found to be irrelevant given the conclusive nature of the Exhibits aforementioned.

Furthermore, it was posited that if the learned trial Judge had properly evaluated the evidence before the Court it would have led him to the conclusion that the evidence of the Appellant and his witnesses together with the evidence elicited from DW1 and DW2 during cross examination supported Exhibits B, E and H and it was wrong therefore to disbelieve the evidence of the PW2 simply on the evidence of DW1 and DW2 that PW2 is not a private secretary to the Chairman of Ugbor Plot Allotment Committee.

On what amounts to a perverse decision, learned counsel cited the cases of STATE VS AJIE (2000) 11 NWLR (PT. 678) 434; ATANDA VS. AJANI (1989) 3 NWLR (PT. 111) 511.

It was therefore urged on this Court to interfere with the findings of facts by the learned trial Judge and resolve the issues in favour of the Appellant.

Replying as per their own issue 1, learned counsel for the Respondent referred to the Appellant?s amended statement of claim in paragraph 3(i) to (iii) as well as the Respondent?s

further amended statements of defence particularly paragraphs 3, 4 and 5 to submit that the cardinal issue joined by the parties is that while the Appellant claims the land in dispute to be the adjacent lands he acquired from the DW1, DW2 and Mr. Emmanuel Igbinoba, the Respondent asserted that the land in dispute was not the land granted to the Appellant?s predecessors-in-title because the said land was only part of the land measuring 500feet by 500feet granted to the Respondent by the Oba of Benin through the Ugbor Plot Allotment Committee. Therefore the issue provoked by the parties pleadings is whether the land in dispute is the land granted to the Appellant?s predecessor-in- title by the Oba of Benin.

On the identity of the land in dispute, it was noted that the parties are in agreement by virtue of their respective litigation survey plans Exhibits A and N as was also found by the learned trial Judge.

It was however submitted that the beacon numbers contained in the Oba?s approval granted to the Appellant?s predecessors-in-title are not consistent and this is fatal to the Appellant?s case as held in FBN PLC VS. OKELEWU (2013) NWLR (PT. 1372) 435 at 461.

He added that the evidence of the Appellant and PW1 who produced Exhibit ?A? are inconsistent and contradictory on the availability of Ward beacon numbers on the land in dispute. On the effect of contradictory and inconsistent evidence he cited the following cases: ONWUNALI VS. UCHE (2010) 2 NWLR (PT. 1179) 582; ODI VS. IYALA (2004) 8 NWLR (PT. 875) 270; ABUBAKAR VS. YAR?ADUA (2008) 18 NWLR (PT. 1179) page 1 at 153 ? 154.

It was also submitted that the evidence of DW1 and DW2 that the land they sold to the Appellant is not the land in dispute never conflicted with Exhibits B, E and H because there is no conclusive evidence that the beacon numbers on the said exhibits were found on the land in dispute apart from that of the PW1.

Arguing issues 2 and 3, learned counsel stated the procedure for allocation of land under Benin Land Tenure System and supported same with the following cases. OMOREGIE VS AIWERIOGHENE (1994) 1 NWLR (PT. 321) 4881; FINNIH VS IMADE (1992) 1 NWLR (PT 219) 511; OWIE VS. IGHIWI (2005) 5 NWLR (PT. 598) 166.

?It was then submitted that the said procedure

makes no room for the role allegedly played by the PW2 during the allocation of the land to the Appellant?s vendors and the Respondent, and whose alleged role was challenged by the DW1 who was the secretary of the Ugbor Plot Allotment Committee from 1972 to 1978 during his evidence in Court and the Appellant did not cross-examine the DW1 and DW5 on their testimonies dis-claiming the PW2 as private secretary to the Chairman of the Plot Allotment Committee and denied the role he claimed to have played.

He contended that the learned trial Judge was right to have held that he disbelieved the evidence of PW2, moreso that the documentary evidence sought to be used in assessing the credibility of PW2?s evidence actually does not exist apart from the PW1 fixing beacon numbers on Exhibit ?A? when they were physically non-existence on the land in dispute.

?Learned counsel was also of the stance that, since the Appellant?s case was that the three parcels of land sold to him were contiguous and adjacent, the only effective refutal of the evidence of DW1 and DW2 could only have come from either Emmanuel Igbinoba (3rd Vendor) or

any member of the Ugbor Plot Allotment Committee who was physically present during the inspection of the land at the time of allocation to the Appellant?s predecessors-in-title.

On issue 4, it was submitted that an appraisal of the totality of both oral and documentary evidence adduced at the trial would justify the decision of the trial Court in dismissing the Appellant?s case. It was also noted that both parties traced their root of title to the same grantor. That is Oba of Benin through the Ugbor Plot Allotment Committee, Ward 36/A and the competing documents were Exhibits B, E and H, (Oba?s approval for the Appellant?s predecessor-in-title and the Respondent?s Oba?s approval Exhibit ?D?).

He further submitted that the testimony of the PW1 with regard to Exhibit A has no probative value because it contradicts the evidence of the Appellant that there was no ward beacons on the land and that he suspected that the Respondent removed them.

?On the other hand, learned counsel submitted that even if the Appellant?s claim is correct to the effect that the land in dispute was sold to him by DW1,

DW2 and Emmanuel Igbinoba, it would have still been impossible to grant declaration of title to the Appellant given that the issue would have narrowed down to priority of interest as both parties have a common grantor in the person of the Oba of Benin through the Ugbo Plot Allotment Committee. On this he relied on the following cases: ELERAN VS. ADERONPE (2008) 11 NWLR (PT 1097) 50 at 80; OLOHUNDE VS. ADEYOJU (2000) 10 NWLR (PT. 676) 562; OJO VS. AZAMA (2001) 4 NWLR (PT. 703) 57; OMIYALE VS. MACAULAY (supra) at 616.

It was noted that the issue of priority of interest was raised by the Respondent?s counsel at the address stage during trial but the learned trial Judge found that in view of his earlier finding that the land in dispute is not the land sold to the Appellant by his predecessors-in-title, so the doctrine of priority of interest could not apply in the case.

Learned counsel also submitted that the contention by the Appellant that the decision of the learned trial Judge is perverse has no justification as the weight of evidence was not in favour of the Appellant.

?Further on the Appellant?s complaint that the learned

trial Judge suo motu raised the issue of acquisition of the land by Edo State Government because it was not pleaded by any of the parties, it was submitted that even if it was not pleaded, the evidence of DW5 and Exhibit N shows it and besides, it was not the basis for the dismissal of the Appellant?s case by the learned trial Judge whose comment or same could at best be seen as an obiter and it is not every error or mistake in a judgment that should lead to a reversal of the judgment. Vide AUDU VS. A.G. FEDERATION (2013) 8 NWLR (PT. 1355) 175 at 204 ? 205; ADOLE VS. GWAR (2008) 11 NWLR (PT. 1099) 562; ONYEMAIZU VS. OJIAKO (2010) 4 NWLR (PT. 1185) 504 at 519.

It was then urged on this Court to resolve the issues against the Appellant and dismiss the appeal.
As stated earlier, the Appellant filed a reply brief on 12/9/2018. Though it substantially consists of a re-argument of most of the issues but the relevant points will be addressed as may be necessary in this judgment.

Now the law is settled that in an action for declaration of title to land the onus lies on the party claiming title to satisfy the Court that he is entitled on the

evidence brought by him for declaration of the piece of land claimed. In other words, the onus is on the plaintiff to satisfy the Court that he is entitled on the evidence adduced by him to a declaration of title. See KODILINYE VS. MBANEFO ODU (1935) 2 WACA 336; OLOWOSAGO VS. ADEBANJO & ORS. (1988) LPELR 2601 (SC); AWOMUTI VS. SALAMI (1978) 3 SC 105; ODUTOLA VS. AILERU (1985) SC 188; ADEGOKE VS. ADIBI & ANOR. (1992) 5 NWLR (PT. 242) 410; OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849) 326.

See also ODUNZE & ORS. VS. NWOSU & ORS. (2007) 13 NWLR (PT. 1050) page 1; MADU VS. MADU (2008) 2 ? 3 SC (PT. II) 109; AYANWALE VS. ODUSAMI (2011) 12 SC (PT. III) 59.
It is equally trite law that a party to a land in dispute may plead and prove his title in any of the five recognised ways because all the modes of proof of title as earlier enumerated are independent of each other and none of them is superior to the other. VideIDUNDUN v. OKUMAGBA supra; OWHONDA VS EKPECHI (supra). Consequently, where traditional evidence fails, a party may still rely on any of the four other modes to prove title to the land in dispute.
See also OGBUOKWELU VS. UMEANAFUNKWA (1994) 4 NWLR (PT.341) 676; NWOSU VS. UDEAJA (1990) 1 NWLR (PT. 125) 188.

In the instant case, the Appellant relied on documents of title in proof of his claim to the land in dispute. This is evidenced in paragraph 3(i) to (iii) of the amended statement of claim wherein it was averred as follows:
?(i) Three approved Applications for adjacent building plots in the names of Messrs: OSASUYI OSUNBOR, OSAHENI UWAIGBE and EMMANUEL IGBINOBA

submitted through the Plot Allotment Committee of Ward 36A (which had jurisdiction over the area at the time of the allocation) to His Highness, the Late Akenzua II, the Oba of Benin who granted the same in favour of the said grantees under Bini Native Law and Custom.
(ii) Purchase Agreement/Receipts dated 23rd Jan. 1975, 9th Jan. 1975 and 30th January 1978 executed in favour of the Plaintiff by the said grantees of the parcels of land covered by the Oba?s Approval referred to above. The Receipts or Transfer Agreements shall be tendered and relied upon as evidence of transaction for sale of the said parcel of land to the Plaintiff. Three separate Oba?s Approvals granted to the Plaintiff for customary change of title to the respective pieces of land will also be founded upon.
(iii) Amended survey plan No. ISO/BD/1907/90 of 13-12-90 drawn by MR. F.U. IYAWE, licensed surveyor on the order of this Honourable Court and filed along with the Amended Statement of Claim. The area originally granted to Messrs. OSASUYI OSUNBOR, EMMANUEL IGBINOBA AND OSAHENI UWAIGBE and subsequently sold or transferred to the Plaintiff is verged pink and is also the area in dispute in this case.?

The Appellant also testified to that effect in his evidence in chief at pages 21 to 23 of the record.

It must be pointed out here that two crucial issues are not in dispute as between the parties. The first is that Exhibits B, E and H which are the approvals by the Oba of Benin for allotment of land to the Appellant?s three predecessors in title which lands are said to be adjacent to each other is acceptable to the parties and the trial Court which made the following findings at pages 127 to 128 of the records:
?In the instant case, the land in dispute is situate at Ward 36A Ugbor. It is not in dispute as earlier stated that DW1, DW2 and Emmanuel Igbinoba sold three parcels of land to the plaintiff and gave him their various title documents Exhibits ?B?, ?E? and ?H?. The defendant is also not contesting the validity or authenticity of Exhibit ?B?, ?E? and “H?.

?The second issue that is acceptable to the parties is that they both derive their title from a common grantor. That is to say that they both traced their root of title to the Oba of Benin.

The Respondent pointed this out in paragraph 7.01 of page 17 of the Respondent?s brief of argument wherein it was submitted thus:
?It is pertinent to note that both parties traced their roots of title to the same grantor, i.e the Oba of Benin through the Ugbo Plot Allotment Committee, Ward 36A. The competing documents were the Appellant?s predecessors-in-title?s Oba?s Approval i.e Exhibits ?B?, ?E? and ?H? and Respondent?s Oba?s approval, Exhibit D1.?

Consequently and as rightly held by the learned trial Judge at page 128 of the record of appeal, the only narrow issue to be addressed is whether the land in dispute is the same parcels of land sold by DW1, DW2 and Emmanuel Igbinoba to the Appellant.

The Appellant in proof of his case at the trial Court tendered Exhibit ?A? which is the litigation survey plan through the PW1. PW1 is the surveyor who produced the said Exhibit ?A?. The Appellant also relied on the evidence of PW2 as well as his own testimony to show that the land in dispute is

the actual parcels of land sold to and shown to him for possession by the three predecessors-in-title.

?The Respondent on the other hand challenged the Appellant?s claim by calling DW1 and DW2, who were two of the three Appellant?s predecessors-in-title. He also testified for himself and tendered Exhibit N through the DW3 who produced the said Exhibit N, the litigation survey plan. DW5 also testified in support of the Respondent?s case to the effect that the Respondent obtained Exhibit D1 which is the Oba?s approval for the allotment of the land measuring 500feet by 500feet from the Ugbo Plot Allotment Committee in 1972 and though he is not disputing the fact, that DW1, DW2 and Emmanuel Igbinoba sold land to the Appellant but it is not the land in dispute.

The learned trial Judge had in resolving the issue held at pages 129 to 131 of the record as follows:
?let me say and quickly too, that I have painstakingly considered the totality of both oral and documentary evidence of the Plaintiff and his witnesses and weighed same side by side with the evidence of the Defendant and his witnesses, in line with their pleadings. After a calm

consideration of the entire evidence, I say without hesitation that I prefer the evidence of the Defendant and his witnesses to those of the Plaintiff and his witnesses. I accept and believe the evidence of DW1 and DW2, the predecessors-in-title of the Plaintiff that the land in dispute is not the parcels of land they sold to the Plaintiff, but belong to the Defendant. I also believe the evidence of DW1 that Dw2 was never a private Secretary to the Chairman of the Plot Allotment Committee in 1973. I believe the compelling evidence of DW1 that the parcels of land they sold to the Plaintiff were acquired by the Edo State Government and there is a road demarcating the Plaintiff?s land from the Defendant?s land. DW1 and DW2 were consistent on this issue even before the matter came to Court. They maintained this position before the elders of Ugbor Community at the earliest opportunity when the dispute arose, which necessitated the elders to allot or demarcate another parcel of land to be given to the Plaintiff which he rejected. I regard DW1 and DW2 as witnesses of truth and I have no reason whatsoever to doubt their credibility being the

Plaintiff?s vendors. DW1, being the vendor of the Plaintiff, and Secretary of the Plot Allotment Committee between 1972 ? 78; and DW2 the Plaintiff?s vendor as well are in a better position to know the exact land to which Exhibits ?B?, E, and H? relates than the PW2 the so-called private secretary to the Chairman of the Plot Allotment Committee. I also believe the evidence of DW5 that he was one of the pointers sent to identify the land measuring 500ft by 500ft to the Defendant after fulfilling the customary requirements for acquisition of land at Ugbor Community in 1972. I also believe and accept the credible evidence of DW4 that he got the permission of the Defendant to farm on the land in dispute in 1974, and continued to farm on same for a period of 12 years before a portion was acquired by the Edo State Government. DW4 and DW5 impressed me as witnesses of truth.
On the contrary, I totally disbelieve the evidence of PW2 that he was a private secretary to the then Chairman of the Plot Allotment Committee and he was sent along with pointers to confirm the dimension of the land and he saw the beacons. The position of a

private secretary to the Chairman of the Plot Allotment Committee is not only strange but novel. He is not a member of the Plot Allotment Committee of Ugbor, nor a pointer in the Committee as admitted by him. His purported role is unknown to the Plot Allotment Committee. In view of the evidence of DW5, who is a pointer in the Committee. The evidence of DW5 and DW1 which I had earlier believed that PW2 was not a private Secretary nor a pointer show the unreliability of his testimony. PW2 appears to me a bought witness who has no regard for any iota of truth. I therefore disbelieve his evidence in its entirety. PW2 lied shamedly without remorse, and I accord his evidence no probative value.
It is interesting, if not remarkable to note that the Plaintiff also failed to call Mr. Emmanuel Igbinoba, his 3rd predecessor-in-title. Amazingly, no reason(s) was/were offered by the Plaintiff for his failure to call him to testify to the fact that the land he sold to him is also the exact land in dispute. It needs to be said that where evidence of a witness is needed to prove a fact, the burden is on the person who seeks to prove that fact to account for the absence

of the witness. The only reasonable inference to be drawn for the failure of the Plaintiff to call the said Mr. Emmanuel Igbinoba or offer an explanation for his failure to call him is that his evidence would have been unfavourable to the plaintiff if called. See Section 149(d) of the Evidence Act; MAIGORO V BASHIR (2000) 11 NWLR (PT. 679) 453.
It is therefore, not surprising that the seemingly devastating evidence of DW1 and DW2 that they did not sell the land in dispute to the Plaintiff completely knocked out the bottom of the case the Plaintiff laboured to build. I therefore hold that the Plaintiff?s documents of title, or Oba approvals Exhibits ?B, E & H? respectively do not relate to the land in dispute, in view of the evidence of his vendors, DW1 and DW2.?

There are four major points on which the learned trial Judge relied on in dismissing the Appellant?s claim. To wit:
(1) The evidence of DW1 and DW2 to the effect that the land in dispute is not the land they sold to the Appellant.
(2) The evidence of PW2 that he was a private secretary to the Chairman of the Ugbor Plot Allotment Committee was

discredited by DW2 and DW5 and therefore his entire evidence is unreliable.
(3) Failure of the Appellant to call Emmanuel Igbinoba (his third predecessor-in-title) as a witness is fatal to his case.
(4) The uncertainty of the nexus between the beacon numbers of Exhibits ?B?, ?E? and ?H? and the land in dispute.

These points form the basis for the Appellant?s complaint and which the Respondent exhaustively replied to accordingly.

On the first point which is premised on the fact that the DW1 and DW2 testified that the land they sold to the Appellant is different from the land in dispute.
The DW1 in his testimony at page 28 of the record stated thus:
?I know the plaintiff. I know the defendant. I transferred the piece of land to plaintiff at Ugbor village. I know the land in dispute. The land I transferred to the plaintiff is not the land in dispute.?

Under cross-examination he further testified thus at page 32 of the record:
?I know the land in dispute. The land the plaintiff?s claiming is Evbuomwan?s land. There is a road demarcating Evbuomwan?s

land and Aiyemwanre?s land. We did not give the plots numbers. But the beacons were on the land and on the paper. Before we gave out the land the plots were demarcated by beacon numbers. Beacon numbers are Exhibit P3. To be sure that what the Oba granted to me is what is in the Agreement we put the beacon numbers on the Agreement. I see Exhibit P3 and Exhibit P5. The two documents bear the same beacon Nos. I cannot see beacon number on my approval is Exhibit P1. I did not prepare it. I am not a surveyor.?

For the DW2, he testified as follows at page 35 of the record;
?I sold a land to the plaintiff but in a different area. I remember that plaintiff wrote to the defendant and the community sat over this matter. The community then wrote a letter to the plaintiff. The elders of the community told the three of us that sold the land to write to the plaintiff and we did. We sent a copy to Mr. Ayemwenre (plaintiff) and Mr. Evbuomwan (defendant).?

Under cross-examination, the DW2 stated as follows at page 36 of the record:
?I sold a land in Ugbor to the plaintiff I have approval for it and I gave all the papers to him.

If my name is on the approval I can know it. Exhibit P6 contains my name and address and that is the approval I gave to plaintiff. Before the Community approved the land they put beacons on it. The beacon numbers were written in my approval I am not lying when I said that the land I sold to plaintiff is not the land in dispute.”

From the above set out evidence of the DW1 and DW2 it comes out glaringly as earlier stated, that the two of them together with Emmanuel Igbinoba sold their separate but adjacent parcels of land to the Appellant and they transferred their legitimate documents of title to him. These are Exhibits ?B?, ?E? and ?H? Oba?s approval. They also testified that the ward beacons were inserted in the said approvals as shown in the aforementioned exhibits.

?It is also not in dispute as shown in the evidence of DW1 that when the Appellant reapplied for the said plots of land sold to him by his predecessor-in-title (for the purpose of change of title name to his own) all the ward beacons were repeated in the Appellant?s reapplication. The DW1 along with other members of the Ugbor Plot Allotment

Committee also signed it. He also took the Appellant to the land and confirmed the location and authenticity of same to the committee.

The same goes for the DW2 and Emmanuel Igbinoba whose parcels of land were adjacent to that of the DW1. Incidentally, the DW1 was then the Secretary to the Ugbor Land Allotment Committee and in that capacity he signed the necessary papers for the other two vendors and which documents he confirmed, contains the beacon numbers as in Exhibit ?B?, ?E? and ?H?.

In this regard the DW1 and DW2 confirmed that the ward beacon numbers in the aforementioned exhibits are correct and authentic with regard to the three parcels of land sold to the Appellant.

?The bone of contention therefore is whether it is the same parcel of land now in dispute. For the DW1 and DW2, the land is not the same land sold to the Appellant. But as per the evidence of the PW1, who prepared Exhibit ?A?, the litigation survey plan, he produced same based on the content of Exhibits ?B?, ?E? and ?H? as well as his visit to the land identified to him by the Appellant where

he was shown the features on the land. Part of his evidence in Court reads thus:
?In the month of December 1990 the plaintiff commissioned me to prepare a litigation survey for him in respect of the land in dispute. I went in his company to the land in dispute which situate at Etete layout road in Ugbor quarters, Benin City. The plaintiff showed me his document of title which included three sets of certificate of transfer, one from Emmanuel Igbinoba for a plot of 250ft by 100ft including an Oba?s approval. These are the documents now shown to me? …………..
The transferors were Emmanuel Igbinoba, Osasu Osunbor and Osasuyi Uwuigbe. The plaintiff showed me round the boundaries of the land and identified the features on the land to me. He also identified his neighbours to the west as one John Idehen, he identified the ward beacons on the land and the various portions transferred by individual transferors, he identified a building on the land, the building blocks, building sand, wall fences all where by the

defendant causes of action in this suit. I carried out my survey, produced a plan which I signed. I delivered certified copies to the plaintiff.?
Further in his evidence the PW1 emphatically stated that he saw the ward beacons on the boundaries of the land. He also identified the three parcels of land sold to the Appellant by the three vendors which were marked yellow, brown and green respectively in Exhibit ?A?. The boundary beacons he saw on the land were said to be marked by beacon Nos. 1333A, 1334A, 1335A, 1217A, 2252A, 2253A, 1216A. The Appellant?s land is said to be defined by beacons Nos. BDS 8682 CP1 ? CP9.
The evidence as adduced by the PW1 was not challenged or contradicted during cross-examination by the Respondent and the description of the land as given in his evidence is consistent with the content of Exhibit ?A?.
?In other words, Exhibit ?A? provided a proper description of the land in dispute and identified same as correctly derived from Exhibits ?B?, ?E? and ?H? which are the documents of title tendered in evidence and relied upon by the Appellant in proof of his title to the land.

What is more, in the case of MOMOH VS. UMORU (2011) 15 NWLR (PT. 1270) 217 the Supreme Court relying on the earlier authorities of OKPULOKA VS. UME (1976) 9 ? 10 SC 269 and OWOTAIRFE VS. ONOKPOSO (1984) 12 SC 19 held that it is the plaintiff?s survey plan that determines the land in dispute and not the defendant?s survey plan where the defendant has not counter claimed. In the instant case, the Respondent incidentally did not counter-claim so Exhibit N cannot upstage Exhibit ?A?.

The learned trial Judge however relied on the viva voce of the DW1 and DW2 to the effect that the land in dispute is not the same land sold to the Appellant and this was done to the detriment of the three documentary evidence Exhibits ?B?, ?E? and ?H? as well as Exhibit ?A? the Appellant?s litigation survey produced in consonance with the aforementioned exhibits to agree with the Respondent that the land in dispute is actually not the same land sold to the Appellant.

?It is trite to state here that where a document is admitted in evidence with respect to and proof

of an issue and such document having been admitted as genuine, correct and existing, oral evidence cannot be given or ascribed preference over the content of the said document. See ADIKE VS OBIARERI (2002) FWLR (PT. 131) 1907; JELILI VS. ADEBOMI (2009) LPELR 4351 (CA).
What is more, the DW1 and DW2 who stated that the land in dispute is not the same land they sold to the Appellant refused, ignored and neglected to specify the location of the said land sold to him. The situation on ground demands such clarity having denied selling the land in dispute to the Appellant and which denial is not supported by the contents of Exhibits ?B?, ?E? and ?H? which documents of title were ironically inherited from them.
As was held by the Supreme Court in the case of ARIJE VS ARIJE & ORS. (2018) LPELR 44193 (SC) at pages 36 ? 37, oral evidence cannot be used to vary or contradict the contents of documentary evidence, except where fraud is pleaded. See also A.G BENDEL STATE VS. UBA LTD (1986) 4 NWLR (PT. 37) page 5; EGHAREVBA VS. OSAGIE (2009) 12 SC (PT. III) 123; UGWUEGEDE VS. ASADU & ORS (2018) LPELR 43717 (SC).

In EFIOK & ORS VS. ANI & ORS (2013) LPELR 21400 (CA) this Court succinctly put as follows:
?Being documentary evidence, they are in law the hanger on which the oral evidence of the parties would be hung for assessment or evaluation of the probative value or worth it deserves.?
Oral evidence cannot therefore alter or controvert the contents of documents rightly admitted in evidence. See also Section 128(1) of the Evidence Act 2011 which provides that no evidence may be given of a judgment or proceeding or of the terms of a contract, grant or disposition of property except the document itself or secondary evidence of its content in cases in which secondary evidence is admissible under the Act and that the contents of any such document cannot be contradicted, altered, added or varied by oral evidence in the absence of fraud, intimidation, illegality or want of execution or the proof of the existence of a separate oral agreement.

The learned trial Judge had also on appraisal of and relying on the evidence of DW1 and DW2 grossly discredited and disbelieved the evidence of PW2 mainly on the ground that the DW1 and DW5 stated

that he was never a secretary to the chairman of the Ugbor Plot Allotment Committee or a pointer to the said committee.

At page 130 of the record, the learned trial Judge held with regard to the evidence of PW2 as follows:
?On the contrary, I totally disbelieve the evidence of PW2 that he was a private secretary to the then Chairman of the Plot Allotment Committee and he was sent along with pointers to confirm the dimension of the land and he saw the beacons. The position of a private secretary to the Chairman of the Plot Allotment Committee is not only strange but novel. He is not a member of the Plot Allotment Committee of Ugbor, nor a pointer in the Committee as admitted by him. His purported role is unknown to the Plot Allotment Committee. In view of the evidence of DW5, who is a pointer in the Committee. The evidence of DW5 and DW1 which I had earlier believed that PW2 was not a private Secretary nor a pointer show the unreliability of his testimony. PW2 appears to me a bought witness who has no regard for any iota of truth. I therefore disbelieve his evidence in its entirety. PW2 lied shamedly without remorse, and I accord his evidence no probative value.

Given the above set out finding of the learned trial Judge, I am not unmindful of the principle of law with regard to the non interference of the evaluation of evidence and findings of fact by a trial Court except where it is found to be perverse. See ADEGOKE VS. ADIBI & ANOR. (1992) 5 NWLR (PT. 242) 410; FASHANU VS. ADEKOYA (1974) 1 All NLR (PT. I) 35; OGUNLEYE VS. ONI (1990) LPELR 2342(SC).
Further on whether an appellate Court can interfere with the decision of the lower Court based on credibility of witnesses this Court per Ogunwumiju JCA in the case of OSINOWO VS. NIGERIAN NAVY (2019) LPLER 46429 (CA) held at pages 26 ? 27 that:
?The law does not allow an appellate Court which did not actually see the demeanour and hear the testimony of the witnesses when they are subject to the fire of cross examination to lend credibility to witnesses that were adjudged incredible by the trial Court.?
In this regard, I am reluctant to interfere with the findings of the learned trial Judge as it relates to the PW2 but without prejudice to the evidence of PW1 and the Appellant.

On the complaint that the learned trial Judge wrongly invoked the provisions of Section 149(d) of the Evidence Act to hold that the failure of the Appellant to call Mr. Emmanuel Igbinoba as a witness concerning the land in dispute is fatal to his case. I however with due respect find this unacceptable. The said Mr. Emmanuel Igbinoba is one of the three vendors who sold their contiguous parcels of land to the Appellant, the DW1 and DW2 are the other two and they testified positively to this fact and that Exhibits ?B?, ?E? and ?H? were their title documents which they transferred to the Appellant. Ironically, the DW1 was the secretary to the Ugbor Plot Allotment Committee when the transaction took place and he signed Exhibit ?H? as it affects the said Mr. Emmanuel Igbinoba. The DW1 and DW2 having stated that the parcels of land sold by them to the Appellant were different from the land in dispute, I do not see how the failure by the Appellant to call Mr. Igbinoba would have made any difference, moreso that this Court had earlier in this judgment held that their oral evidence cannot overreach the

content of Exhibits ?B?, ?E? and ?H? as to the location of the land in dispute.
Consequently, I hold that the finding of the learned trial Judge that failure of the Appellant to call Mr. Emmanuel Igbinoba as a witness is fatal to his case is perverse and therefore cannot stand.

As rightly submitted by the Appellant?s counsel, the learned trial Judge upon proper consideration of the facts in issue would have found that Exhibits ?B?, ?E? and ?H? relates to specific parcel of land which were identified and delineated by numbered beacon blocks and which numbers are reflected in the said Exhibits and which formed the basis for the production of the litigation survey plan (Exhibit ?A?) by the PW1. The said Exhibit having been found by the learned trial Judge to relate to the land in dispute ought to have influenced his decision otherwise.

?This brings to the fore the issue of the uncertainty of the nexus between Exhibits ?B?, ?E? and ?H? and the land in dispute. The learned trial Judge in addressing the issue at pages 132 to 133 of the record embarked on a

speculative conclusion as follows:
?Learned counsel made a heavy weather out of a bright cloud about the beacon numbers on the Plaintiff?s land and the Oba?s Approvals, Exhibits B, E & H? as showing the nexus between the Plaintiff customary root of title with the physical position on ground with the land in dispute. There is no doubt that DW1 and DW2 admitted that the beacons numbers on the land they sold to the Plaintiff and the ones reflected in their Oba?s approval are the same. However, DW1 and DW2 stated categorically that the land in dispute is not the land they sold to the Plaintiff. That the land in dispute belong to the Defendant. DW1 equally stated unequivocally that there is a road demarcating the Plaintiff?s land from that of the Defendant, a mystery that the beacons numbers on Exhibits ?B, E & H? are the ones alleged to be on the beacons blocks on the land in dispute. The question now will be: how did the alleged beacon blocks get to the Defendant?s land in view of the categorical evidence of DW1 and DW2 that the parcels of land they sold to the Plaintiff is not the land in

dispute? Who planted the beacon blocks on the Defendant?s land or better still, are the beacons blocks now referred to by the Plaintiff the original blocks planted on the land by the Plot Allotment Committee when DW1 and DW2 were granted the land by the Oba of Benin? These questions remained unanswered by the Plaintiff. The onus is on the Plaintiff to prove that the alleged beacon blocks were the original beacons planted on the land when it was granted to DW1 and DW2. He did not give the names of persons who planted the original beacons nor called them to testify before this Court to show that the alleged beacon blocks now on the land in dispute are the original beacons planted on the land by the Plot Allotment Committee when DW1 and DW2 were granted the parcels of land by the Oba of Benin. In the absence of any credible evidence proffered by the Plaintiff to these nagging questions adumbrated above, it is safe to conclude that the alleged beacon blocks were planted on the land in dispute to give the semblance that they were original beacon blocks on the land at the time DW1 and DW2 acquired the parcels of land in dispute from Ugbor Plot Allotment Committee.?

From the above set out findings and conclusion, the learned trial Judge while agreeing that the DW1 and DW2 admitted that the beacon numbers on the land they sold to the Appellant and the ones reflected in the Oba?s approval are the same however relied on the oral evidence of the DW1 and DW2 that the land in dispute is not the one sold to the Appellant and the fact that DW1 stated that the Appellant?s land was acquired by the Edo State Government to conclude speculatively that the alleged beacon blocks were planted on the land in dispute to give a semblance that they were the original beacon blocks on the land at the time the DW1 and DW2 acquired the parcels of land in dispute from the Ugbor Plot Allotment Committee.

I have read through the parties pleadings and it is nowhere averred that the Appellant?s land was acquired by the Edo State Government. It only came up during the evidence of the DW1 in Court. The law is settled that parties are bound by their pleadings and any evidence which is not derived from the facts pleaded goes to no issue. SeeEMEGOKWUE VS. OKADIGBO (1973) 4 SC 113;

ADEYERI & ORS. VS. OKOBI & ORS (1997) 6 NWLR (PT. 510) 534; GEORGE & ORS. VS. DOMINION FLOUR MILLS (1963) 1 All NLR 71; RAIMI V. OGUNDANA & ORS. (1986) 3 NWLR (PT. 26) 97; OGBODA VS. ADULUGBA (1971) 1 All NLR (PT. I) 71: ERONINI & ORS. VS. IHEUKO (1989) 2 NWLR (PT. 101) 46.
It follows therefore that the evidence of DW1 to the effect that the Appellant?s land was acquired by the Edo State Government goes to no issue having not been pleaded.

In the circumstance, the holding of the learned trial Judge that it is a mystery that the beacon numbers in Exhibits ?B?, ?E? and ?H? are the one alleged to be on the beacon blocks on the land in dispute is not supported by any evidence and his further speculative conclusion that they were planted on the said land to give a semblance of originality dating back to when the DW1 and DW2 acquired same cannot stand having been placed on nothing. Moreso that the parties were not afforded the opportunity to be heard on the issue.
?I must add that the same goes with the issue of the authenticity of the nexus between the beacon blocks on the land and Exhibits ?B?, ?E?

and ?H? from which Exhibit ?A? was produced. The issue was not pleaded by the parties and it behoves the Court in the circumstance to have given them the opportunity to be heard on the said issue having raised same suo motu and which, from the conclusion of the learned trial Judge borders on illegality or even criminality.
The effect of a Judge raising an issue suo motu and resolving same without the parties being heard was addressed by the Supreme Court in the recent case of WAGBATSOMA VS. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR 43722 (SC) wherein it was held per Kekere?Ekun JSC at pages 30- 31 that:
?It has been held severally by this Court that no Court no matter how well meaning, may raise an issue suo motu and resolve it without affording the parties an opportunity to be heard. The Court must confine itself to the specific issues raised by the parties and has no business considering an issue not properly before it. Raising and resolving an issue suo motu has the effect of making out a case for the parties which they did not make for themselves. A Judge who raises an issue suo

motu without affording the parties an opportunity to be heard before resolving it has in effect descended into the arena of conflict.?
See alsoOBAWOLE & ANOR VS. WILLIAMS & ANOR (1996) 10 NWLR (PT. 477) 146; OLUSANYA VS. OLUSANYA (1993) 1 SCNLR 134; LAHAN VS. LAJOYETAN (1972) 6 SC 190; EGBUCHU VS. CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR (40053) SC.
Where a Court raises an issue suo motu and which is substantial and can determine the matter one way or the other as in the instant case, the Court is duty bound to hear the parties on the issue so raised before basing its decision on it. Failure to do so will result in the decision being set aside for being a nullity as a result of breach of right to fair hearing. See ADELEKE VS. RAJI (2002) 13 NWLR (PT. 783) 142; EGBUCHU VS. CONTINENTAL MERCHANT BANK PLC & ORS. supra.
The parties must therefore be given an opportunity to be heard on the point raised suo motu, particularly the party that may suffer prejudice as a result of the point so raised suo motu videAJAO VS. ASHIRU (1993) 11 SC 23; ODIASE VS. AGHO (1972) 1 All NLR (PT. I) 170.

On the issue of priority of interest as raised by

the learned counsel for the Appellant from the records the issue came up for the first time in the Respondent counsel?s address at the lower Court. It was not pleaded or given in evidence by any of the parties. It is trite that counsel address no matter how brilliant cannot be a substitute for material evidence. So no amount of brilliant address can make up for lack of evidence to resolve any issue before the Court. See NIGER CONSTRUCTION LTD V. OKUGBENI (1987) 4 NWLR (PT. 67) 787; OKULEYE VS. ADESANYA (2014) 6 ? 7 SC (PT II) page 1; OFORISHE VS. NIGERIAN GAS CO. LTD (2017) LPELR 42766 (SC).

On the whole, the sole issue raised by this Court is resolved in favour of the Appellant.
I hold that this appeal has merit and it is hereby allowed.

The judgment of the High Court of Edo State delivered on the 20th day of July, 2012 is hereby set aside. The Appellant?s claim as per paragraph 12 (a), (b) and (c) of the amended statement of claim filed on 10/8/1993 is hereby granted.
N50,000 costs is awarded against the Respondent.

?HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read before now the

erudite judgment just delivered by my Learned brother SAMUEL CHUKWUDUMEBI OSEJI, JCA. The judgment was so thorough and exhaustive that I have nothing useful to add to it except to say that I found while reading the judgment of the Court below that the findings therein were perverse and did nothing to justly resolve the issues in contention between the parties. I agree that the Appeal has merit and it should be allowed. I abide by all the consequential prayers.
Appeal Allowed.

PHILOMENA MBUA EKPE, J.C.A.: I had the opportunity of reading in draft the Judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA.

I agree with his reasoning and the conclusion that the sole issue raised by this Court is resolved in favour of the Appellant. I also hold that this appeal has merit and it is hereby allowed.

The Judgment of the High Court of Edo State delivered on the 20th day of July, 2012 is hereby set aside. The Appellant?s claim as per paragraph 12 (a), (b) and (c) of the amended statement of claim filed on 10/8/1993 is hereby granted.
?I abide by the order as to costs in the lead Judgment.

Appearances:

Charles Ayemwenre, Esq.For Appellant(s)

R.I. Edugie, Esq.For Respondent(s)

Appearances

Charles Ayemwenre, Esq.For Appellant

AND

R.I. Edugie, Esq.For Respondent