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ANEKWE & ANOR v. ARONU (2020)

ANEKWE & ANOR v. ARONU

(2020)LCN/14359(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Tuesday, June 30, 2020

CA/E/489/2008

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

  1. MRS FRANCISCA OBIAGELI ANEKWE 2. ANTHONY IKECHUKWU ANEKWE (SUBSTITUTED FOR MICHAEL CHUKWUEMEKA ANEKWE BY ORDER OF COURT OF 02/12/2019) APPELANT(S)

And

RAPHAEL CHIZUBELU ARONU RESPONDENT(S)

RATIO

METHOD OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

It is now trite that five methods by which a Claimant may establish title to a disputed piece of land have crystallized over the years. These five methods are as follows:
(i) Proof by traditional evidence;
(ii) Proof by production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody;
(iii) Proof by acts of ownership, in and over the land in dispute, such as selling, leasing, making a grant, renting out all or any part of the land or farming on it or a portion thereof – extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such proprietary acts are the true owners of the land;
(iv) Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership, not only of the particular piece of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarly that the presumption under Section 46 of the Evidence Act, Cap. 112 of 1990 applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land; and
(v) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See: D.O. IDUNDUN & ORS VS. OKUMAGBA (1976) 9 AND 10 SC 227 at pages 246-250 and ONWUGBUFOR &ORS VS. OKOYE & ORS (1996) LPELR-2716 (SC) at 24-25.
What this implies is that a Claimant only needs to establish one of the five roots of title to establish his claim. Where he pleads more than one method, he does so ex abundanti cautela as he will succeed on the establishment of one of the five possible roots of title. See ONWUGBUFOR & ORS VS. OKOYE & ORS (Supra) at 25.

To succeed in establishing his root of title in a claim for declaration of title however, a Claimant must plead and adduce credible evidence in support of his case. Onus of proof is on him which he discharges on preponderance of evidence. In discharging the onus on him he must rely on the strength of his case and not the weakness of his opponent. See KAIYAOJA & ORS. VS EGUNLA (1974) LPELR-1644 (SC). PER OYEWOLE, J.C.A.

WHETHER OR NOT EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE THERETO IS THE PRIMARY DUTY OF THE TRIAL COURT

Evaluation of evidence and ascription of probative value thereto is the primary responsibility of the trial Court which has the exceptional privilege of seeing and hearing the witnesses directly and observing their demeanors. Where the trial Court has however failed to appropriately utilize its advantage, the appellate Court has a duty by way of rehearing to evaluate the adduced evidence as if it was the trial Court. To shrink from this task is to abdicate judicial responsibility. Where the adduced evidence is largely documentary as in this case, the appellate Court is as good as the trial Court as there is no issue of demeanor of witnesses involved. See ADEGOKE VS. ADIBI & ANOR (1992) LPELR-95 (SC), AGBABIAKA VS. SAIBU & ORS (1998) LPELR-222 (SC) and IWUOHA VS NIPOST (2003) 4 SC (PT 2) 37 at 54. PER OYEWOLE, J.C.A.

STANDARD OF PROOF IN CIVIL CASES

Civil cases are decided on balance of probabilities and when cases presented by the two sides to a civil dispute are weighed on an imaginary scale, judgment would be given to the party with the more credible case. See MOGAJI VS. ODOFIN (1978) 4 SC 91 at 95. PER OYEWOLE, J.C.A.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State, Enugu Judicial Division, holden at Enugu delivered on the 14th June, 2006 by UMEZULIKE, CJ.

The parties had a dispute over a piece or parcel of land known as Plot 9, New Era Layout otherwise called 64, Kenyatta Street, Enugu South L.G.A, Enugu which culminated in a writ of summons being taken out by the original Appellant at the trial Court wherein he sought the reliefs contained in the amended statement of claim as follows:
(i) A declaration that the plaintiff is deemed to be a holder of a right of occupancy over the piece or parcel of land known as Plot 9, New Era Layout otherwise called 64, Kenyatta Street, Enugu South L.G.A, at the commencement of the Land Use Act, 1978:
(ii) A declaration that the certificate of occupancy dated 19/5/95 and registered as No. 75 at page 75 in Volume 1156 of the Lands Registry, Enugu, granted to the 1st defendant is null and void and of no effect:
(iii) An order that the aforesaid certificate of occupancy be cancelled:
​(iv) An order that the particulars

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of the said certificate of occupancy be expunged or removed from the Lands Registry, in the office at Enugu:
(v) Two hundred thousand Naira (N200,000.00) damages for trespass against the defendants jointly and severally: and
(vi) Perpetual Injunction restraining the defendants by themselves, their agents, privies, or otherwise howsoever, from further acts of trespass on the said land or doing anything whatsoever on the same without the prior consent and authority of the plaintiff.

On being served, the Respondent joined issues via pleadings and counter-claimed as follows:
(a) A declaration of Court that the land registered as No. 41 at page 41 in Vol. 523 at the Lands Registry Enugu measuring approximately 800sq metres is not the same as the 1st defendant’s land registered as No. 75 at page 75 in Vol. 1156 at the Lands Registry Enugu and designated plot 9 New Era Layout Enugu.
(b) A further declaration of Court that the 1st defendant being the person to whom a certificate of occupancy was granted by the Governor Enugu State over the said Plot 9 New Era Layout Enugu is entitled to peaceable possession and enjoyment of all

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possessory and ownership rights over the property as against the property or any other.
(c) An injunction restraining the plaintiff, his agents or privies from trespassing on the said plot 9 New Era Layout Enugu.

At trial, both sides called oral and documentary evidence in support of their pleadings at the end of which their counsel addressed the Court. In a considered judgment, the learned trial Judge found that neither side succeeded in making out a credible case in support of their reliefs, upon which both the claim and counter-claim were non-suited.

Dissatisfied, the original Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 14th September, 2006 containing 5 grounds. Along the way, the original Appellant passed away and was substituted with his wife and son who are the present Appellants. The Notice of Appeal was amended and the extant version is the Amended Notice of Appeal filed on the 13th March, 2020 still containing five grounds.

​At the hearing of the appeal, the learned lead counsel for the Appellant, Dr. Mogbana adopted the amended Appellants’ brief of 10th January, 2020 and the

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amended Reply brief also of 10th January, 2020, both briefs having been deemed properly filed and served on the 10th March, 2020. For the Respondents, Mr. Agama adopted the amended Respondent’s brief of 28th January, 2020 equally deemed properly filed and served on the same 10th March, 2020.

The Appellants formulated four issues for determination while the Respondent formulated a lone issue. The four issues of the Appellants are as follows:
1. Whether the trial Chief Judge was right in holding that there was a disparity relative to the identity of the land in dispute having regard to pleaded facts.
2. Has the plaintiff not proved that by virtue of his acquisition in 1971 of the piece of land situate at Ogada, Uwani, Enugu, he became the owner of Plot 9 New Era Layout, Enugu, upon creation of the said Layout and accordingly qualified as a deemed holder of a right of occupancy in respect of the said Plot 9 upon coming into effect of the Land Use Act on 29/3/78.
3. Has the respondent demonstrated that he validly acquired any interest in the said Plot 9 New Era Layout as at 29/3/78 to entitle him to a certificate of occupancy in respect

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thereof.
4. Whether the said Certificate of Occupancy, dated 19/5/95 and registered as No. 75 at Page 75 in Volume 1156 Lands Registry, Enugu should not be pronounced null and void and the appellants declared the deemed holder of a right of occupancy in respect of Plot 9 New Era Layout, Enugu, and granted the consequential reliefs claimed.

The sole issue of the Respondent was formulated thus:
Whether the appellant had proved upon a preponderance of evidence that he was entitled to plot 9 New Era Layout Uwani Enugu and that the land which he purportedly purchased from Igwe Michael Nwigboegbunam Adibo in June 1971 was the same thing as Plot 9, New Era Layout Enugu.

An examination of the issues for determination proposed by the two sides indicates that the four issues of the Appellants can be subsumed within the lone issue of the Respondent. I shall therefore adopt the lone issue of the Respondent.

Dr. Mogbana submitted that contrary to the findings of the learned trial Judge, the Appellants duly identified the land claimed in the pleadings and led evidence in support thereto. He pointed out discrepancies in the root of title of the

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Respondent which varied from the counter-claim and should have been resolved in favour of the Appellants.

It was further submitted that the Appellants led evidence in support of their title and further established the title of their vendors as required by law. He referred to IDUNDUN VS OKUMAGBA (1976) NSCC 445, 453-4, LAWSON VS AJIBULU (1997) 6 NWLR (PT 507) 14, AYANWALE VS ATANDA (1988) 1 SCNJ 1 and OTANMA VS YOUDUBAGHA (2006) 2 NWLR (PT 964) 337 at 359.

Learned counsel traced the root of title as adduced by oral and documentary evidence at the trial and submitted that the said land was duly vested in the Appellants prior to the commencement of the Land Use Act in 1978 upon which they became deemed holders of a right of occupancy. He referred to SAVANNAH BANK VS AJILO (1989) 1 NWLR (PT 97) 305, OSHO VS FOREIGN FINANCE CORPORATION (1991) 4 NWLR (PT 184) 157 and ABIOYE VS YAKUBU (1991) 5 NWLR (PT 190) 130.

Dr. Mogbana submitted further that the averments in support of the counter-claim of the Respondent only seeks to rely on the Certificate of Occupancy issued to him without an adequate establishment of his root of title and contended that

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exhibits H and L were inadmissible as unregistered instruments that were purposely made in anticipation of litigation. He referred to ADELAJA VS ALADE (1992) 6 NWLR (PT 245) 116, O.O.T. CO. VS A. G. KWARA STATE (1992) 7 NWLR (PT 254) 412, REGISTERED TRUSTEES OF MMHC VS ADEAGBO (1992)2 NWLR (PT 226)690, AJAO VS ADIGUN (1993) 3 NWLR (PT 282) 389 and OVEDHE INT’L LTD VS THOMAS (1990) 6 NWLR (PT 156) 323.

He further pointed out that exhibit L did not vest title in the Respondent and submitted that a person without title to whom a certificate of occupancy is issued acquires no right or interest, which he did not have before the certificate was issued to him. He argued that the Respondent failed to establish his title to the said land prior to the Land Use Act and referred to OGUNLEYE VS ONI (1990) 2 NWLR (PT 135) 745, OLOHUNDE VS ADEYOJU (2000) 10 NWLR (PT 676) 562 at 587 and REGD TRUSTEES, APOSTOLIC CHURCH VS OLOWOLENI (1990) 6 NWLR (PT 158) 514 and 536.

He further submitted that the grant of a certificate of occupancy to the Respondent was defective without a revocation of the earlier existing right of occupancy of the Appellant. He referred to

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DANTSOHO VS MOHAMMED (2003) 14 NSCQLR (PT 1) 1 at 26-27.

The learned counsel urged the Court to re-examine the adduced evidence and pursuant to its power of re-evaluation make appropriate inferences and findings as the trial Court ought to have done especially as the adduced evidence is largely documentary. He referred to OKOMALU VS AKINBODE (2006) 9 NWLR (PT 985) 338 at 365, BASIL VS FAJEBE (2001) 11 NWLR (PT 725) 609, EBENECHI VS STATE (2009) 20 WRN 14, FATOYINBO VS WILLIAMS (1956) 1 FSC 87 and GOVERNOR, EKITI STATE & ORS VS PRINCESS OLUBUNMO & ORS (2017) 7 WRN 1 at 33.
He urged the Court to find for the Appellants.

Arguing to the contrary, Mr. Agam pointed out that the Appellants had the onus to establish his title and that the parties having joined issues on the identity of the land said to have been purchased by the Appellants, onus of proof was on the Appellants which onus he failed to discharge. He referred to AREMU VS ADETORO (2007) 7 SC 1 at 10 and OTANMA VS YOUDUBAGHA (2006) 1 SC (PT 111) 23 at 32.

He submitted further that the case of the Appellants on the identity of the land was not helped by PW4 who was on subpoena

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duces tecum and could therefore not offer oral evidence, thereby leaving exhibits F and F1 without any supporting oral evidence linking them with the case. He referred to FABUNMI VS AGBE (1985) 3 SC 28 at 95, ONOTAIRE VS ONOKPASA(1983) 12 SC 19 at 106-107 and BASIL VS FAJEBE (supra).

The learned counsel submitted that the testimony of PW3 contradicted the pleadings of the Appellants and the contents of Exhibits A and B in the difference in size and location of the land being claimed by the Appellants thereby justifying the findings of the learned Trial Judge. He referred to VANDERPUYE VS GBADEBO (1998) NWLR (PT 541) 271 and OREDOYIN VS AROWOLO (1989) 4 NWLR (PT 114) 177 and ANIEMEKA EMEGOKWUE VS JAMES OKADIGBO (1973) 4 SC 113 at 117.

Learned counsel insisted that the land purchased by the Appellants was different from Plot 9, New Era Layout which was why the title documents failed to refer to it and that in totality the Appellants’ case rightly failed for failure to establish the identity of the land claimed. He referred to AREMU VS ADETORO (supra) at 20.
He urged the Court to dismiss the appeal.

​In his Reply brief, Dr. Mogbana

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reiterated that the Appellants led sufficient evidence to establish the identity of the land in dispute and his entitlement thereto.

​It is now trite that five methods by which a Claimant may establish title to a disputed piece of land have crystallized over the years. These five methods are as follows:
(i) Proof by traditional evidence;
(ii) Proof by production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody;
(iii) Proof by acts of ownership, in and over the land in dispute, such as selling, leasing, making a grant, renting out all or any part of the land or farming on it or a portion thereof – extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such proprietary acts are the true owners of the land;
(iv) Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership, not only of the particular piece of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarly that the

10

presumption under Section 46 of the Evidence Act, Cap. 112 of 1990 applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land; and
(v) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See: D.O. IDUNDUN & ORS VS. OKUMAGBA (1976) 9 AND 10 SC 227 at pages 246-250 and ONWUGBUFOR &ORS VS. OKOYE & ORS (1996) LPELR-2716 (SC) at 24-25.
What this implies is that a Claimant only needs to establish one of the five roots of title to establish his claim. Where he pleads more than one method, he does so ex abundanti cautela as he will succeed on the establishment of one of the five possible roots of title. See ONWUGBUFOR & ORS VS. OKOYE & ORS (Supra) at 25.

To succeed in establishing his root of title in a claim for declaration of title however, a Claimant must plead and adduce credible evidence in support of his case. Onus of proof is on him which he discharges on preponderance of evidence. In discharging the onus on

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him he must rely on the strength of his case and not the weakness of his opponent. See KAIYAOJA & ORS. VS EGUNLA (1974) LPELR-1644 (SC).

From the pleadings and evidence adduced at trial, the Appellants are relying on documents as their root of title which is the second method of establishing title to land as earlier outlined. A party who relies on documents as his root of title must not just tender the said documents but must go further to establish the title of his vendor on balance of probabilities otherwise the principle of nemo dat quod non habet would apply. See ASHIRU VS. OLUKOYA (2006) LPELR-580(SC), BALOGUN VS. AKANJI (1988) 1 NWLR (PT 70) 301 and AIYEOLA VS. PEDRO (2014) 13 NWLR (PT 1424) 409 at 442.

In this appeal, the Appellants are basically challenging the evaluation of the pleadings and evidence adduced in support thereof, by the learned Trial Judge. Evaluation of evidence and ascription of probative value thereto is the primary responsibility of the trial Court which has the exceptional privilege of seeing and hearing the witnesses directly and observing their demeanors. Where the trial Court has however failed to appropriately

12

utilize its advantage, the appellate Court has a duty by way of rehearing to evaluate the adduced evidence as if it was the trial Court. To shrink from this task is to abdicate judicial responsibility. Where the adduced evidence is largely documentary as in this case, the appellate Court is as good as the trial Court as there is no issue of demeanor of witnesses involved. See ADEGOKE VS. ADIBI & ANOR (1992) LPELR-95 (SC), AGBABIAKA VS. SAIBU & ORS (1998) LPELR-222 (SC) and IWUOHA VS NIPOST (2003) 4 SC (PT 2) 37 at 54.

In the vexed judgment, the learned Trial Judge stated on pages 130-131 of the record of appeal as follows:
Under paragraph 3 of the defendants’ Statement of Defence, the 1st to 3rd defendants averred as follows:
“That paragraph 5 of the Statement of Claim is admitted save to the extent that the land allegedly purchased by the plaintiff as contained in the paragraph measures approximately 800 square meters and it was also registered at Plot 9 New Era Layout, Enugu or No. 64 Kenyetta Street, Enugu.”
Under paragraph 6 of the Statement of Defence it is averred as follows:
“In further answer,

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the 1st defendant states that in 1976, his father Clement Aronu (deceased) who is the 1st defendant served as apprentice immediately after his first school leaving certificate purchased in the 1st defendant’s name from the 2nd and 3rd defendants Plot 9 New Era Layout, Enugu which land measures approximately 670.371 square metres.
From the above two significant or material discrepancies can be picked out when the pleaded facts are matched with the evidence oral and documentary adduced at trial. Whilst the land to which the plaintiff lays claim measures 1059.55 square yards which is approximately 800 square metres as shown under exhibit A, the land granted the 1st defendant under Exhibit H measures only 670.3 square metres. The difference of about 130 square metres in my humble view is material.
Another detail of significance is that whilst the plaintiff and to some extent the 1st defendant described the land as Plot 9 New Era Layout in their pleaded facts and in evidence, the 2nd and 3rd defendants who were the vendors of the property described the land as Plot 9 Nedmude and Agu Ndemude respectively. According to DW2 the land is known and called

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by the nearby Ndemude stream.
It is my respectful view that there is a measure of confusion over the identity of the land in dispute.

The judgment was concluded on page 133 in the following words:
As I hinted above, the identity of the land in dispute of which declaratory and injunctive reliefs are sought must be clear and certain physically and sometimes co-nomine (by name). This important detail was not achieved in the trial of this suit. And because I do not intend to punish the parties by dismissing the claim and the counter claim because of the inadvertence of counsel, the Court ought therefore to order non-suit upon the plaintiff’s claim and the defendants’ counter-claim. I so order.

With due respects to the learned Trial Judge (of blessed memory), he appeared to have held the Appellants liable for inconsistencies in the case of the Respondent. The 2nd and 3rd Defendants who testified at trial as DW2 and DW3 were the vendors of the Respondent, called to testify in support of his case. Whatever these witnesses brought up as confusion can only affect the case for the counter-claim of the Respondent negatively.

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The case of the Appellants as to the identity of the land they claimed was not muddled. The relevant averments in their pleadings are contained in paragraphs 5 to 10 of their amended statement of claim thus:
5. In or about June, 1971, the plaintiff through a cousin negotiated and purchased from Chief Michael Nwigboegbuna Adibo, now the Traditional Ruler of Ugwuoba, Oji River L.G.A., Enugu State, a piece of land measuring approximately 1059.55 sq yards in area and situate, lying and being at Ogada, Uwani, Enugu, at a price of £800.00 Nigerian currency. The plaintiff pleads the Deed of Assignment dated 18/6/71 and registered as No. 41 at page 41 in Volume 523 of the Lands Registry in the office at Enugu made between the aforesaid vendor and the plaintiff.
6. Following the sale of the said piece of land to the plaintiff in 1971 the vendor soon after took the plaintiff to his landlord, late Mr. Nwosu Onah, and introduced him as the assignee and purchaser of the said parcel of land and the tenant in succession to Chief Michael N. Adibo. The plaintiff presented a bottle of hot drink, 1 carton of beer and two gallons of palm wine to the said landlord for his

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consent for the transfer of ownership of the land to him. The late Nwosu Onah duly gave his consent to the sale and also accepted payment of £5.0/- representing two years annual rent of £2.10/- paid to him by the plaintiff on that occasion.
7. The said vendor derived his title to the aforesaid piece of land which is more particularly delineated and shown in Plan No R 163/60 annexed to the Deed of Lease dated 23/11/60 and registered as No. 68 at page 68 in Volume 244 of the Lands Registry in the office at Enugu under a grant by late Nwosu Onah who was a member of late Okonkwo Ede Family of Amaechi Awkunanaw community, Enugu South L.G.A. Enugu State. The plaintiff will at the trial rely on the said Deed of Lease entered into between Chief Michael Nwigboegbuna and late Nwosu Onah.
8. The said piece of Land was before the aforesaid grant the exclusive property of late Nwosu Onah by virtue of a partition of late Okonkwo Ede Family land at Ogada, Uwani, Enugu, made prior to 23/11/60.
9. In or about 1973 the Amechi Awkunanaw community created a layout known as New Era Layout comprising its land at Ogada, Uwani, Enugu, including the aforesaid piece of

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land. The said approved layout is shown in Town Planning Division Drawing No. E/58C dated 10/9/85 which is hereby pleaded. The plaintiff will also rely on the said drawing with Plan No. R. 163/60 charted into the drawing.
10. Following the creation of the layout the landowners of Ogada, Uwani, Enugu, agreed with the plaintiff to accept Plot 9 in New Era Layout, which by virtue of construction of roads is smaller in area than the piece of land purchased by him in 1971, but is about the same size and in the same position and location as the latter. The plaintiff accepted the said Plot 9 otherwise known as No. 64 Kenyatta Street, Enugu South L.G.A., in substitution for the larger piece of land earlier purchased as the sacrifice he had to make for the creation of the layout with its attendant advantages.

​The evidence of the original Appellant as PW1 was in line with his above pleadings and exhibits A and B were his title documents. PW2 was his cousin who witnessed the sale and was part of the subsequent developments. He corroborated the testimony of PW1. PW3 was the vendor of the Appellants. The witnesses were consistent on the description and the

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location of the land claimed.

The averment in paragraph 10 of the pleadings as to the variation in the size of the land claimed was supported by the oral testimonies of the witnesses. It was argued for the Respondent that exhibit C the layout plan, was in existence in June, 1971 when the original Appellant said he bought the land in issue as contained in exhibit B. A perusal of the said exhibit C however, shows on the face thereof that it is Drawing No. E/58C of 10/9/85 with the following expressed thereon; “THIS DRAWING SUPERSEDE DRAWING NO 58B DATED 8-5-71”. Thus exhibit C was certainly not in existence in 1971 having been made on 10/9/85. The drawing of 8/5/71 which exhibit C superseded was not before the trial Court, and it is beyond the Court to speculate as to its content. As such, there was no basis for the submission urged on us that Plot 9 existed when the Appellants’ title was created in 1971. See IKENTA BEST (NIG.) LTD VS. ATTORNEY-GENERAL, RIVERS STATE (2008) NWLR (PT.1084) 612, EJEZIE V. ANUWU (2008) 12 NWLR (PT.1101) 446 and AMASA & ORS V. THE CHAIRMAN, NATIONAL POPULATION COMMISSION & ORS (2014) LPELR-22772 (CA).

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While the case of the Appellants at trial was consistent, I cannot say the same for that of the Respondent. Exhibit H and L upon which exhibit G, the Certificate of Occupancy rests are lease agreements dated 26th July, 1976 and 6th July, 1976 respectively. Exhibit H dated 26th July, 1976 was however stamped in 1995 while exhibit L dated 6th July 1976 described the size of the land leased as being contained in a survey plan dated 3rd July, 1992. No explanation was given for these glaring discrepancies.

Furthermore, the learned counsel for the Appellants challenged the admissibility of these documents and submitted that they were made purposely in anticipation of this suit. The point was not countered by the learned counsel for the Respondent indicating that he had conceded. See DR. ARTHUR NWANKWO & ORS VS. ALHAJI UMARU YAR’ADUA & ORS (2010) 12 NWLR (PT. 1209) 518.

Civil cases are decided on balance of probabilities and when cases presented by the two sides to a civil dispute are weighed on an imaginary scale, judgment would be given to the party with the more credible case. See MOGAJI VS. ODOFIN (1978) 4 SC 91 at 95.

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In the entire circumstances therefore, this issue which as stated earlier captures the four issues of the Appellants, is resolved in favour of the Appellant and against the Respondent.
Appeal is meritorious and it is accordingly allowed.

Consequently, the judgment of the trial Court delivered in Suit No. E/451/94 is hereby set aside. The reliefs sought by the Appellants in the said suit are hereby granted as follows:
1. It is hereby declared that the Appellants are deemed to be the holders of a right of occupancy over the piece or parcel of land known as Plot 9, New Era Layout otherwise called 64, Kenyatta Street, Enugu South L.G.A, at the commencement of the Land Use Act, 1978:
2. It is hereby declared that the certificate of occupancy dated 19/5/95 and registered as No. 75 at page 75 in Volume 1156 of the Lands Registry, Enugu, granted to the Respondent is null and void and of no effect:
3. It is hereby ordered that the aforesaid certificate of occupancy be cancelled forthwith:
4. It is hereby ordered that the particulars of the said certificate of occupancy be expunged and removed from the Lands Registry, in the office at Enugu:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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  1. One hundred thousand Naira (N100,000.00) is awarded as damages for trespass against the Respondent: and
    6. An order of perpetual Injunction is hereby made restraining the Respondent by himself, his agents, privies, or otherwise howsoever, from further acts of trespass on the said land or doing anything whatsoever on the same without the prior consent and authority of the Appellants.
    7. Cost of N100,000.00 is awarded against the Respondent and in favour of the Appellants.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the opportunity of reading while in draft, the Lead Judgment just delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I entirely agree with the lucid reasoning and conclusion reached therein to the resonating and gainful effects, that the instant Appeal has abundant and manifest merits. Additionally, that it should be allowed. Cost of N100,000.00 is hereby awarded against the Respondent and in favour of the Appellants.

ABUBAKAR SADIQ UMAR, J.C.A.: I agree.

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Appearances:

Dr. J. C. Mogbana with him, P. Nnamani, Esq. For Appellant(s)

Mr. C. N. Agama For Respondent(s)