ANIETIE PETER ETIM & ORS v. EDET EFFIONG UMOH & ANOR (2014)

ANIETIE PETER ETIM & ORS v. EDET EFFIONG UMOH & ANOR

(2014)LCN/7670(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of March, 2014

CA/C/60/2013

RATIO

EVIDENCE: PROOF OF IDENTITY OF THE LAND; THE BURDEN OF THE PLAINTIFF TO IDENTIFY THE LAND IN DISPUTE WITH CERTAINTY AND WHEN THE IDENTITY OF A LAND WILL BE IN ISSUE
We shall deal with the issue of the identity of the land first because proof of identity of a piece of land in dispute is of utmost importance if any success is to be attained. A plaintiff seeking the relief of the nature claimed in this matter has a cardinal duty to show, with certainty, the area of land being claimed and to which he wants the order of court to relate; where he fails to do so, the entire case must stand dismissed, Baruwa v. Ogunsola 4 WACA 159; Elias v. Omobare [1982] 5 S.C. 25; Awere v. Lasoju (1975) N.M.L.R. 100; Sangosanya v. Salawu (1975) N.M.L.R. 27; Aremu v Adetoro (2007) LPELR -546 (SC).

Simply put, the issue of identity of a disputed land must be ascertained with certainty, Dike v. Okolo [1999] 10 NWLR (Pt. 623) 359; Ogun v Akinyelu [2004] 18 NWLR (Pt. 905) 362; Elah v Anyadike [1999] 5 NWLR (Pt. 603) 454; Okonkwo and Ors v Okonkwo and Ors (2010) LPELR-9357 (SC) 36 F-G.

The rationale for this prescription is that in a claim for declaration of title to land, the onus in on the plaintiff to prove title to a defined area to which a declaration can be attached and that defined area is the boundary of the land, Odesanya v. Ewedemi (1962) 1 All NLR 320; Aremu v Adetoro (2007) LPELR -546 (SC).
In effect, he has the obligation of, clearly, proving the boundaries of the land claimed, Baruwa v Ogunshola 4 WACA 159; Udofia v. Afia 6 WACA 216, 217; Amata v Modekwu 14 WACA 580, 583; Aremu v Adetoro (2007) LPELR -546 (SC).

However, it has been, tolerably, settled that the identity of a land in dispute will only be in issue where the defendant in his Statement of Defence, specifically disputes the description of the land given in the plaintiffs Statement of Claim, Adenle v. Olude [2002] 9 SCNJ 94; [2003] FWLR (Pt. 157) 1074; Adelusola v Akinde [2004] All FWLR (Pt. 218) 776; [2004] 5 SCNJ 235 or when the said land is not known to both parties, Aremu v Adetoro (supra).
On the contrary, where the parties, from the evidence, are clear as to the identity of the land in dispute, the fact that different names are given to it or the area it is located cannot affect the case, Aromire v Awoyemi [1972] 1 All NLR (Pt 1) 101, 113; Makanjuola v Balogun [1989] 3 NWLR (Pt 108) 192, 204; Ogbu v Wokoma [2007] All FWLR (Pt. 277) 815, 817; Damini and Anor v Abraham and Ors (2001) LPELR -919 (SC) 12, B-C.

Thus, where there is cogent evidence of the identity of the land, the question of a survey plan would not arise, Aremu v Adetoro (supra) at 262 A – C; Atolagbe v Shorun [1985] 1 NWLR (Pt 2) 360; Adedeji v Oloso and Anor [2007] 5 NWLR (Pt 1026) 133; (2007) LPELR – SC. 60/2002. per. CHIMA CENTUS NWEZE, J.C.A.

EVIDENCE: PROOF OF TRADITIONAL HISTORY; THE FACTS THAT A PLAINTIFF WHOSE CLAIM IS FOUNDED ON TRADITIONAL HISTORY IN PROOF OF A CLAIM FOR DECLARATION OF TITLE TO LAND MUST PLEAD AND ESTABLISH

In this regard, we note the settled position that a plaintiff whose claim is founded on traditional history in proof of a claim for declaration of title to land must plead and establish such facts as: (a) who founded the land; (b) how he founded the land and (c) the particulars of the intervening owners through whom he claims, Nkado v Obiano [1997] 1 NWLR (Pt 482) 374; Ohiaeri v Akabeze [1992] 12 NWLR (Pt 221) 1; Mogaji v Cadbury Nig. Ltd. [1985] 2 NWLR (Pt 7) 393; Elegushi v Oseni [2005] 7 SC (Pt 111) 205, 213 – 214; Ezewusim v Okoro and Anor [1993] 5 NWLR (Pt. 294) 478.
Where the line of succession is not satisfactorily traced and that line of succession has gaps and mysterious linkages which are not established, then such line of succession would be rejected, Dike v Okoloedo [1999] 10 NWLR (Pt. 623) 359; Mogaji v Cadbury Nig. Ltd. (supra); Kupoluyi v. Phillips [2001] 13 NWLR (Pt. 731) 736; Alade v Awo [1975] 4 SC 215; Kalio v Woluchem [1985] 1 NWLR (Pt. 4) 616; Mogaji v Cadbury Nig. Ltd. (supra). per. CHIMA CENTUS NWEZE, J.C.A.

EVIDENCE: PROOF OF TRADITIONAL HISTORY; THE EFFECT OF THE GAPS AND MYSTERIOUS LINKAGE IN THE PLAINTIFF’S EVIDENCE OF TRADITIONAL HISTORY

Our understanding of the rationale of superior authorities on this point is that, in circumstances such as the plaintiff brought upon himself, there ought to be no gaps and mysterious linkages in his pleadings, Dike v. Okoloedo (supra); Mogaji v Cadbury Nig. Ltd. (supra); Kupoluyi v. Phillips (supra); Alade v. Awo [1975] 4 SC 215; Kalio v. Woluchem [1985] 1 NWLR (Pt. 4) 616.

In effect, such gaps and mysterious linkages must prompt a rejection of the plaintiff’s evidence of traditional history, Dike v. Okoloedo (supra); Mogaji v Cadbury Nig. Ltd. (supra); Kupoluyi v. Phillips (supra); Alade v. Awo (supra); Kalio v. Woluchem (supra). per. CHIMA CENTUS NWEZE, J.C.A.

EVIDENCE: PROOF OF ROOT OF; THE EFFECT OF THE FAILURE OF A PLAINTIFF WHO PLEADS A ROOT OF TITLE TO PROVE IT AND THE EXCEPTION IN THE CASE OF KOJO II V. BONSIE

Specifically, the law is that in an action for declaration of title to land, where a plaintiff pleads a root of title but fails to prove it, he cannot be allowed to substitute the root of title that has failed with acts of possession.
The rationale is that, in such a case, the root of title which the plaintiff pleaded was the fons et origo, that is, the foundation and origin of his title, Balogun v Akanji [1988] 1 NWLR (Pt. 70) 301; [1988] 2 SCNJ (Pt.1) 104, 125 – 126; Fasoro v. Beyioku [1988] 2 NWLR (Pt. 76) 263; [1988] 4 SCNJ 23, 29. The decision in Odofin v. Ayoola [1984] 15 NSCC 711, 731 painted this position in this picturesque metaphor ‘when the root of title pleaded ceases to stand, the stems and branches will fall with the root.”

Perhaps, one recognisable exception could be found when, under the exceptional circumstances created by the rule in Kojo II v. Bonsie (1957) 1 WLR 1223, 1226, acts of possession and ownership may be allowed to resolve evidence of conflict in traditional histories, Mogaji v Cadbury Nigeria Ltd [1995] 2 NWLR (Pt. 7) 393; [1985] 16 NSCC (Pt.11) 959, 990-991.
This was not the position at the lower court. The plaintiff anchored his claim on traditional history. He failed to prove his pleaded root of title. In the circumstance, it was even unnecessary for the lower court to consider other acts of ownership and/or possession. The reason is simple: such acts would no longer be acts of possession but acts of trespass, Balogun v Akanji [1988] 1 NWLR (Pt 70) 301; Fasoro v Beyioku and Ors [1988] 2 NWLR (Pt 76) 263; Oyadare v Keji [2005] 1 SC (Pt I) 19, 25. per. CHIMA CENTUS NWEZE, J.C.A.

LAND LAW: IDENTIFICATION OF LAND; WHETHER SURVEY PLAN IS NECESSARY WHERE THE LAND IN DISPUTE IS IDENTIFIABLE BY ALL PARTIES
Put differently, where the land in dispute is identifiable by all the parties, a survey plan is not a desideratum, Archibong and Ors v Ita and Ors (2004) LPELR -535 (SC) 33, E-F, per Tobi JSC; Kwadzo v Adjei (1944) 10 WACA 274; Atolagbe v Shorun [1985] 1 NWLR (Pt 2) 360. Hence, where the identity of the land in dispute was known to the parties, as in the instant case, a survey plan would be unnecessary. As such, the absence of such a plan would not be fatal to the plaintiff’s case if proper description of the land is available in the proceedings, Etiko v Aroyewun (1959) 4 FSC 129; [1959] SCNLR 308. per. CHIMA CENTUS NWEZE, J.C.A.

Before Their Lordships

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZEJustice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISIJustice of The Court of Appeal of Nigeria

Between

1. ANIETIE PETER ETIM
2. UWEM ANIETIE PETER
3. DANIEL ANIETIE PETERAppellant(s)

AND

1. EDET EFFIONG UMOH
2. CHIEF OLIVER EDET ETIMRespondent(s)

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): At the High Court of Akwa Ibom State, Uyo Judicial Division, the first respondent in this appeal [as plaintiff] claimed declaratory; injunctive and monetary reliefs against the second respondent in this appeal [who was then the first defendant] and the appellants herein [who were the second; third and fourth defendants, respectively]. The plaintiff settled, filed and served his Statement of Claim on the defendants.

The appellants herein [as second, third and fourth defendants] filed a joint Statement of Defence. They, equally, front loaded other processes which they intended to rely upon at the trial. The first respondent herein [as plaintiff] filed a Reply to the Joint Statement of Defence. The matter went on trial. The first respondent in this appeal [as plaintiff] called three witnesses in proof of his case. He was the PW1. The other witnesses were Chief Linus Etim Essien and Edet Charles Ebong, PW2 and PW3, respectively. The second respondent herein [who was the first defendant] did not participate in the proceedings. The first appellant herein [second defendant at first instance] presented the defence of the appellants [as second, third and fourth defendants]. He testified as DW1 and tendered one exhibit, exhibit C.

In its reserved judgment delivered on November 26, 2012, the court (hereinafter referred to as “the lower court”) favoured the plaintiff [the first respondent in this appeal] with the declaratory relief he prayed for. It equally awarded damages against the appellants. They were dissatisfied with the outcome of the matter, hence their appeal to this court. They presented three issues for the determination of this appeal. The first respondent, equally, formulated three issues for the determination of the appeal. We shall return to them anon. Before then, however, we present hereunder the factual background to this appeal.

FACTUAL BACKGROUND
At the lower court, the first respondent [as plaintiff] put forward the case that he purchased a parcel of land known as “Ndon Ewet” from Mesdames Martina Asukwo Ikpe, Atim Udo Ikpe and Aniedi Etim Udo. The land is situate at Ikot Oku Idio, Uyo. His case was that his vendors inherited the said land from their ancestors. They donated a power of attorney to him.

It was part of his case that, sometime in 2003, a dispute over the ownership of the said land arose between Madam Atim Asuquo Ikpe and the first appellant herein [second defendant, as he then was). The matter was referred to customary arbitration. Madam Atim Asuquo Ikpe took an oath over the land. The ownership of the land was, consequently, awarded to her. The plaintiff contended that, in spite of the said award, the first appellant [second defendant at the lower court] trespassed into the said land and destroyed economic trees on the land.

The second respondent herein [first defendant, as he then was] was served with all the processes. He, however, condemned them and stayed away from the court. On their part, the appellants [as second, third and fourth defendants] disclaimed knowledge of any land known as “Ndon Ewet” in Ikot Oku Idio. The only land of their acquaintance, they deposed, is known as “Edem Akai” which they inherited from their forebears. The first appellant [second defendant at the lower court] denied ever attending any arbitration before the Ekpri Nsukara village Council. He made the case that his father allocated Edem Akai to, his mistress, one Asukwo Udo Ikpe.

It was part of his case that when his father’s said mistress, Asukwo Udo Ikpe, became weak, her daughter, Martina Asukwo udo Ikpe, continued to cultivate the land for her. He recovered the land from the said Martina Asukwo Udo Ikpe and disposed of it, by way of sale, in 2007. According to him, the plaintiff [now, first respondent] encouraged Madam Martina to exercise patience as he would recover the land, sell it and share the purchase price with her. He maintained that Edem Akai land was not one of the parcels of land which Asukwo Udo Ikpe, the forebear of Madam Asukwo Udo Ikpe, owned. He, further, maintained that Ekpiri Nsukara Village Council had no jurisdiction over land matters in Ikot Oku Idio village.

ISSUES FOR DETERMINATION
As stated above, the appellants formulated three issues framed in these words:
(1) Whether the judgment of the trial court can be supported by the weight of the evidence adduced by the plaintiff (first respondent herein) and his witnesses or whether the inference drawn or the conclusion reached by the trial court based on the accepted evidence can be justified?
(2) Whether the declaration of right of occupancy in favour of the plaintiff in respect of a land situate at Ikot Oku Idio, Offot, Uyo Local Government Area of Akwa Ibom State granted by the trial court was sought by the plaintiff in view of the fact that he did not lead evidence on the amended Statement of Claim?
(3) Whether the plaintiff identified the land he was seeking title (sic) as required by law to warrant the grant of a declaration of title to land in is (sic) favour?

On his part, the first respondent put forward three issues couched in the following phraseology:
(1) Whether the evidence of PW1, PW2 and PW3 when placed on an imaginary scale does not weigh in favour of the first respondent to support the findings and conclusion of the trial court?
(2) Whether the trial court was right in granting the first respondent customary right of occupancy of the disputed land ‘Ndon Ewet’ situate at Ikot Oku Idio Offot Uyo in view of his evidence and that of his witnesses?
(3) Whether the plaintiff [now the first respondent] identified the disputed land ‘Ndon Ewet’ situate at Ikot Oku Idio Offot, Uyo, distinctly and properly, in this case?

In our humble view, the respondent’s issues are preferable to those of the appellant having regard to their appetizing and alluring concision and more, importantly, their pungency a propos the main agitation of the appellants in their grounds of appeal. Accordingly, we shall adopt them as the issues for the determination of this appeal. Issues one and two will be dealt with together due to their thematic affinity.

ARGUMENTS ON THE ISSUES
ISSUE ONE
Whether the evidence of PW1, PW2 and PW3 when placed on an imaginary scale does not weigh in favour of the first respondent to support the findings and conclusion of the trial court?

APPELLANTS’ SUBMISSIONS
When this appeal came up for hearing on January 20, 2014, Christopher Ekpo, holding the brief of E. Effiong, for the appellants, adopted the brief settled by Etim Offiong and filed on April 29, 2013 and the reply brief of June 19, 2013. In the said brief, it was contended that the judgment of the trial court is unsupportable by the weight of the evidence adduced by the plaintiff and his witnesses. It was argued that the inferences which the lower court drew and its conclusion based on the accepted evidence are unjustifiable.

Counsel cited Ode v Fowler (2001) 9 NWLR (Pt 718) 299, 306-307 as authority for the view that where the judgment of the court is not supported by evidence or the conclusion reached by the court cannot justified, the judgment given in the circumstance in favour of the plaintiff is against the totality of the evidence adduced before the court.

He noted that, in the instant case, the lower court, without recourse to the evidence extracted from PW1, PW2 and PW3 during cross examination on the location of the land, said the plaintiff was consistent in stating the location of the land as being at Ikot Oku Idio village.

He submitted that the fact that PW1, in order to cover up the discrepancies and contradictions in evidence on the location of the land, gave evidence at page 164 of the record during cross-examination to the effect that Ikot Oku Idio, Ekpri Nsukara and Ewet were once together before they were separated by the Government due to development, would not in any way assist the case of the plaintiff. He noted that, by virtue of the Traditional Rulers Law of Akwa Ibom State, 2000, the existence of the recognized villages was a matter of law, while the facts of the creation or history of a village was matter of facts.

He, further, submitted that the findings and conclusion of the lower court that the testimonies of PW1, PW2 and PW3 were certain as to the location of the land was unjustifiable in view of the evidence elicited from them during examination. He maintained that the lower court’s position that the testimonies elicited from PW1; PW2 and PW3 during cross examination went to no issue since they had no root in the pleadings was unfounded.

He pointed out that the appellants raised the issue of the location of the land in their pleadings, Asadu v. Ifeanyi (2010) All FWLR (Pt. 517) 736, 750; Idahosa v. Idahosa (2011) All FWLR (Pt. 568) 983, 1004-1005; Tyonex Nig Ltd v Pfizer Ltd (2011) All FWLR (Pt. 514) 175, 184 – 184; section 223 of the evidence Act, 2011. He observed that the first respondent, also, raised the issue in his pre-trial answers, particularly, the eleventh answer. He restated the settled position that pleadings should contain only facts and facts alone, Kolawole v Olori (2010) All FWLR (Pt. 514) 35, 83; Order 15 Rule 2(1) of the Akwa Ibom State High Court Rules, 2009.

He contended that the need to amend pleadings to incorporate evidence extracted from a witness during cross-examination arises only when the answers in cross-examination were for the purpose of establishing a party’s case and not when it was made to destroy, discredit or qualify the case of the opponent as in this case. He canvassed the view that the lower court was obliged to consider the product of the cross examination of PW1, PW2 and PW3 on the identity of the location of the land in the evaluation of the value of the entire evidence placed before it. He maintained that, considering the evidence extracted from PW1, PW2 and PW3 under cross examination, the lower court did not have sufficient evidence to support its conclusion that the plaintiff identified the land with certainty.

He took the view that, having regard to the contradictions in the evidence of PW1, PW2 and PW3 on the location of the land, which was material, the lower court was not bound to rely on any piece of their testimonies but to reject all of them. He explained that the reason was because a court would not go ahead to pick and choose the evidence it was going to rely on, Osadim v Taiwo (2010) All FWLR (Pt. 534) 164;
Okeke v Ejezie (2011) All FWLR (Pt. 603) 1011, 1864; Taiwo v. Ogundele (2012) 15 NSCQR 372, 389-390; Pencyl Orunengimo v. Egede (2007) 31 NSCQR 220, 229; Osuji v. Ekeocha (2009) 39 NSCQR 532, 590.

He pointed out that the lower court, at page 215 of the record, concluded that the donors of exhibit B [Power of Attorney] authorized the plaintiff to institute the action in his name and for his own purpose. He submitted that since the said exhibit was tendered for the purpose of showing that the first respondent made payment to the donors therein, the lower court was not justified when it proceeded beyond that receipt clause to convey authority to sue on the first respondent herein. He submitted that by virtue of section 150 of the Evidence Act, 2011, a Power of Attorney is presumed to have been executed the day it was attested to by a Magistrate or any other person authorized by that section.

He pointed out that, in the instant case, the purported Power of Attorney, exhibit B, was presumed to have been executed on December 27, 2007, while the matter was still pending in court, page 52 of the record. He opined that by virtue of section 83(3) & (4) of the Evidence Act, 2011, the said exhibit was, wrongly, admitted and relied upon by the lower court as evidence of the root of title.

He canvassed the further view that this court is empowered to reject such inadmissible piece of evidence. He urged the court to hold that it was made for the purpose of the proceedings at the lower court. He pointed out that, on the above premise, the plaintiff’s case, woven around exhibits A and B, must collapse since there was nothing on which it could stand.

He maintained that there was no admissible evidence pursuant to which the lower court granted the plaintiff the right of occupancy. He urged this court to reverse the decision of the lower court since its reliance on inadmissible evidence had led to a miscarriage of justice. He pointed out that, even if exhibit B was admissible, the fact that the court did not consider exhibit A, which the plaintiff relied on, was enough to refuse the prayer for a grant of right of occupancy.

He took the view that the traditional history which the first respondent [as plaintiff] presented at the lower court would not warrant the grant of Right of Occupancy to him. He pointed out that the first respondent pleaded in paragraph 6 of the Further Amended Statement of Claim that the disputed land was deforested by Chief Udo Ikpe. Counsel pointed out that the first respondent [as plaintiff] did not give evidence to show what happened to the land after the purported deforestation. He maintained that it was not enough to give evidence of deforestation of a land.

In his submission, such a claim must be backed up with evidence of settlement since a person can deforest a land and depart without possession and ownership. He cited Osidele v Sokunle [2012] 51 NSCQR 337, 353, in support of his submission that a person relying on traditional history, as evidence of title, must give a consistent evidence as to the devolution of such title over the years. In addition, there must be evidence as to how the persons claiming to be the present owners of the land derived their interest and root from those who first settled on the land.

He pointed out that, in the instant case, there was no evidence as to the settlers on the land. He noted that there was equally no evidence as to how Chief Udo Ikpe came to deforest the said land and who his father was. Counsel drew attention to the Further Amended Statement of Claim where it was averred that the land was a family property. He observed, however, that in exhibit A, which the lower court found as evidence of arbitration, the Council awarded the land in favour of Atim Asuquo Ikpe alone. He pointed out that, throughout the case, there was no explanation as to how the same land was transferred, through a Power of Attorney, exhibit B, by three persons.

Counsel contended that, since the lower court found that the Arbitration Panel’s award, exhibit A was not binding, the evidence of the plaintiff [first respondent] on how he became seized of the land had crumbled at that point. He, equally, submitted that, since exhibit B [Power of Attorney] was not binding, the lower court’s grant of the right of occupancy based on that exhibit or traced to the contents of the said exhibit [exhibit B], was without justification.

He noted that, immediately, the lower court found that exhibit B was not binding, it should not have proceeded to declare title in favour of the first respondent based on paragraph 12 of the Further Amended Statement of Claim. He observed that exhibit B had no connection with Madam Atim Asuquo Ikpe’s family since there was nothing linking the unnamed family with the property described in exhibit A. In his view, the plaintiff’s case was, incurably, bad and ought to have been dismissed.

He maintained that was no further Amended Statement of Claim which the lower court could rely on because, by virtue of Order 25 Rule 1 (10 of the Akwa Ibom State High Court Rules, 2009, all pleadings must be considered during pre-trial. He explained that, in the instant case, the Further Amended Statement of Claim was not considered during the pre-trial conference. He pointed out that the plaintiff should have applied for extension of time to go into further pre-trial so that his Further Amended Statement of Claim could be considered.

He submitted that, since after the introduction of a pre-trial conference, all pleadings must pass that process for them to be considered as proper. He urges the court to hold that the lower court, wrongly, relied on the Further Amended Statement of Claim and that there was no Further Amended Statement of Claim known to law before it.

FIRST RESPONDENT’S SUBMISSIONS
On his part, Ekpa B. Ekpa, for the first respondent, submitted that the first respondent’s evidence and that of his witnesses (PW2 and PW3), when weighed against that of the appellants who did not call any witness, were heavier than that of the latter and supported the lower court’s findings and judgment in this matter.

He pointed out that the first respondent in his evidence on oath, which was supported by his pleading, said the disputed land “Ndon Ewet” is situate at Ikot Oku Idio which was carved out of Ekpri Nsukara and that Ikot Oku Idio was formally in Ekpri Nsukara and that Ewet, Ikot Oku Idio and Ekpri Nsukara village were formally one village before they were separately recognized by the Government of Akwa Ibom State. He noted that this position was confirmed by PW2, Chief Linus Etim Essien, the village head of Ekpri Nsukara Offot, Uyo.

He observed that the Power of Attorney, exhibit ‘B’, tendered as a receipt showing payment for the disputed land ‘Ndon Ewet’ gave the same boundaries of the disputed land and the situs as Ikot Oku Idio Offot as in the first respondent’s evidence and that his witness. He drew attention to exhibit C, Writ of Summons in Suit No 392/2009 which Ewet Offot Village instituted against the people of Ikot Oku Idio Offot, including the first appellant, who was the fourth defendant therein. The exhibit showed that Ndon Ewet was, formerly, in Ewet Offot.

He submitted that the first respondent and his witnesses were correct when they said Ikot Oku Idio Offot is one of the three villages in Ewet which include Ekpri Nsukara Offot. In his submission, the lower court was right when it believed the traditional evidence of title to the disputed land by the first respondent. He noted that the said respondent had identified the land Ndon Ewet, located at Ikot Idio Offot, for which he paid N200,000 (Two Hundred Thousand Naira). He pointed out that the lower court, rightly, noted that, though the appellants called the disputed land “Edem Akai” they did not deny the identity of the land.

He drew attention to page 224 of the record. There, the first appellant testified that his late father gave to his mistress, Madam Asuquo Udo Ikpe. Madam Ikpe’s daughter, Madam Martina, later cultivated the same until he [first appellant] recovered it from her. He later sold it [the same land] to undisclosed purchaser in 2007 during the pendency of the suit.

Counsel submitted that the creation or carving out of Ikot Oku Idio Offot, Uyo from Ekpri Nsukara Offot did not affect the location of and ownership of landed property by persons from Ewet Offot, Ekpri Nsukara Offot, Ikot Oku Idio Offot all in Uyo irrespective of where they are located in any of three villages.

He submitted that the appellants neither raised the issue of the admissibility of exhibit ‘B’ (Power of Attorney) and exhibit “A” (the Arbitrators’ award), in their pleadings nor during the pre-trial conference. In his view, they were foreclosed from raising on appeal without the leave of this court, Olumogba v Onwuzo (2005) 131 LRCN 2448, 2450. He pointed out that no matter how brilliant counsel’s address may be, it cannot supplant the pleadings and evidence, Salzgitter GMBH v Tunji Dosunmu Industries Ltd (2001) 194 LRCN 192, 198.

He contended that section 150 of Evidence Act, 2011, does not mention the date or day of execution of the Power of Attorney. He took the view that exhibit was, properly, admitted in evidence and findings made on it. He urged the court not to interfere the lower court’s findings since, in his view, they were not perverse findings, Egbaran v Akpotor (1997) 15 LRCN 1842, 1846; Dumez v Nwakhoba (2008) 36 (part 11) NSCQR 885, 906 – 911. He submitted that the traditional evidence of the first respondent, one of the five methods of proving title to land, when placed on an imaginary scale, weighs heavier than that of the appellants, the first respondent having positively and distinctly identified the land.

He, further, submitted that the lower court’s findings, in the circumstance of this case, were not perverse and do not occasion any miscarriage of justice, Agbabiaku v Saibu (1998) 6 LRCN 4632, 4635, 4648; Adewuyi v Odukwe (2005) 131 LRCN 2510, 2513. He urged the court to hold that the first respondent had produced evidence and proved that the said land belonged to him, having derived title from the donors of exhibit B.

He canvassed the view that there were no contradictions in the testimonies of PW1, PW2 and PW3 as to the identity and location of the land from facts and findings of the trial court. They maintained that the said land is in Ikot Oku Idio Offot, Uyo, which was formerly in Ekpiri Nsukara Offot, Uyo and is called “Ndon Ewet.” In his view, even if there were contradictions in the testimonies of these witnesses (PW1, PW2 and PW3), they should be seen as mere discrepancies which were not material enough to affect the findings and judgment of the trial court, Nwokoro v Onuma (1999) 72 LRCN 3015, 3019, 3032.

He submitted that exhibit A was admitted without objection. He pointed out that the lower court did not rely on the said exhibits because they the ingredients for using them as estoppel were not pleaded. He noted, however, that tire lower court observed that the description and identity of the land in dispute in the exhibits were corroborated by the evidence of PW1, PW2 and PW3, as in the pleadings.

He explained that PW1 tendered exhibit B, (Power of Attorney) to show evidence of payment for the land and which imposed on him the right to institute this action in his name and for his benefit and interest, which he did in this case. He submitted that section presumes the genuineness of exhibit B, if duly authenticated or executed. In his view, the date of execution does not affect the genuineness and admissibility of the document.

He disclaimed the applicability of sections 83(3) and (4) of the Evidence Act in the instant case. He noted that exhibit ‘B’ was dated November 20, 2006 and filed along with the Writ of summons on November 19, 2007 before the coming into force of the High Court Civil Procedure Rules, Akwa Ibom State in 2009. He pointed out that the Amended Statement of Claim; depositions on oath of PW1, PW2 and PW3 were filed with the leave of the lower court. In his submission, exhibit B was not made in contemplation of the suit and was properly admitted. The lower court made proper findings on it, citing pages 223 – 225 of the record. He submitted that that this court cannot question the authenticity and bindingness of exhibit “B” on the appellants and the donors. In his view, this court should only be concerned with the question whether the document was properly admitted, reasonable findings made on it by trial court and the law correctly applied, Nwokoro v Onuma (1999) LRCN 3015, 3019, 3033.

He pointed out that the lower court relied on the first respondent’s evidence and the testimonies of his witnesses as to how title to the land devolved from late Chief Udo Ikpe to PW1 who paid consideration on the land to the donors of exhibit B. He observed that this piece of evidence was not controverted, Nwokidu v Okanu (2010) 183 LRCN 114, 125. He observed that settlement was not a requirement in the claim for title by traditional evidence. He pointed out that the donors and those whom the first respondent paid consideration to were related and from the same family, namely Madam Atim Asuquo Udo Ikpe, Madam Martina Udo Ikpe and Anietie Etim Udo. He explained that jointly donated exhibit B to PW1 who instituted this action in his own benefit and interest.

He contended that the Further Amended Statement of Claim filed with leave of court was only to correct the location of the disputed land from Ekpri Nsukara Offot, Uyo to Ikot Oku Idio Offot, Uyo in line with the evidence in court, pleadings and the plaintiff’s reply on record. He explained that at the conclusion of pleadings, pre-trial conference commenced and was concluded when issues as to the location of the land at Ikot Oku Idio Offot, Uyo, were joined and Pre-Trial Order issued by the lower court.

He submitted that the provision of Order 25 Rule 1-5 of the High court Rules were complied with by the parties and the trial court. He dismissed the contention of appellants’ counsel that further pre-trial ought to have commenced as misconceived, Consortium C Lot Nig v NEPA [1992] 7 SCNJ (Pt.11) 1, 2, 8; Aighobahi v Alfuwa (2006) 139 LRCN 1021, 1029.

APPELIANTS’ REPLY
In the reply brief filed on June 19, 2013, the appellants responded to the issues which the respondent canvassed in paragraphs 3.1; 3.2; 3.8 of their brief, pages 1 – 2 of the Reply brief.

ISSUE TWO
Whether the trial court was right in granting the first respondent customary right of occupancy of the disputed land ‘Ndon Ewet’ situate at Ikot Oku Idio Offot Uyo in view of his evidence and that of his witnesses?

APPELLANTS’ SUBMISSIONS
On this issue, counsel for the appellants submitted that the first respondent did not, at any time, seek any relief in the trial court in respect of any land in Ikot Oku Idio, Offot Uyo. He explained that, on January 12, 2011, the first respondent adopted his statement on oath which was filed on September, 29, 2010, as his evidence-in-chief. He was, duly, cross examined based on the said statement. He pointed out that, subsequently, the said first respondent, who had already testified as PW1, attempted to file a Further Amended Statement on oath. However, the lower court struck it out on June 19, 2012, pages 191-195 of the record.

He drew attention to paragraph 18(1) of the PW1’s Statement on Oath. There, he entreated the court for a “declaration of the title of the piece or parcel of land known (sic) and called ‘Ndon Ewet’ lying and situate at Ndon Ewet, Ekpiri Nsukara Offot, Uyo, Uyo Local Government Area, Akwa Ibom State of Nigeria.” He noted that this was not the relief which the lower court granted him. He re-iterated the settled position that a court would not grant what parties did not pray for, Calabar Central Cooperative, Thrift and Credit Society Ltd and Ors v Bassey Ebong Ekpo [2008] 33 (Pt.11) NSCQR 1146, 1181; Isheno v Julius Berger Nig Plc [2008] 33 (Pt.1) NSCQR 296, 328.

He noted that, throughout the case, the plaintiff prayed the court for title over a parcel of land at Ekpiri Nsukara, Offot, Uyo. He pointed out that, at the close of evidence, and after receiving the appellants’ final address, the first respondent amended his Statement of Claim. He, however, did not give further evidence.

He submitted that pleadings do not constitute evidence. Thus, where they are not supported by evidence, such pleadings are deemed abandoned, The Administrator of the Estate of General Sani Abacha (Deceased) v Eke-Spiff and Ors [2009] 37 NSCQR 364, 415 – 416; Philips v Eba Odan Commercial Co Ltd [2012) 50 NSCQR 1, 33. He observed that, in the instant case, though the first respondent amended his pleadings, he did not lead evidence in support of the relief. In his submission, the relief in respect of the land at Ikot Oku Idio was deemed abandoned.

He maintained that it was immaterial that, in his evidence-in-chief, he mentioned Ikot Oku Idio. He opined that, where the evidence does not support the relief sought, it cannot be granted since the court’s jurisdiction is determined by the relief sought and not the facts pleaded or evidence led in support of those facts, Philips v Eba Odan Commercial Co Ltd (supra) 33. He contended that evidence cannot be led on the averments of facts alone while abandoning the relief.

He drew attention to the fact that, in the instant case, the relief which the first respondent sought in his evidence-in-chief, was for a declaration of title in respect of a parcel of land at Ekpiri Nsukara. He submitted that a court can grant a relief not sought as an incidental relief. He contended, however, that such an incidental relief cannot be granted in this case since incidental reliefs are, usually, based on the relief, specifically, sought by the plaintiff , Dumez v Nwakhoba [2008] 36 (Pt.11) NSCQR 885, 910.

He canvassed the view that there was no evidence or circumstance in this case that warranted the lower court’s grant of the relief which was not sought. He contended that the lower court should have limited itself to the pleadings on which evidence was led in granting the relief and not the pleading which the plaintiff abandoned. He maintained that the contradictory evidence of the plaintiff [first respondent] and his witnesses on the location of the land was not such that would fetch him any relief.

He explained that apart from the fact that the trial court granted right of occupancy in respect of a land located at Ikot Oku Idio, Offot, Uyo, which was not sought by the plaintiff, a closer look at the relief which it granted showed that it is different from what the plaintiff sought in that court. He pointed out that the plaintiff, in his supposed Further Amended Statement of Claim, prayed for a declaration of title. However, the court granted him a right of occupancy. He maintained that the grant of a right of occupancy was not one of the reliefs which the plaintiff sought.

He contended that the grant of title and right of occupancy are two different things. He pointed out that the Land Use Act, 1978, created two types of right of occupancy, namely, Statutory right of occupancy and Customary right of occupancy, Adisa v Oyinwola [2000] 10 NWLR (Pt. 674) 116, 200. He submitted that, since the first respondent did not seek any relief relating to a of Right of Occupancy and did not give evidence to the effect that he was entitled to a right of occupancy, the lower court should not have granted him a declaration to a right of occupancy.

RESPONDENT’S ARGUMENTS
On his part, counsel for the respondent re-iterated the fact that the plaintiff, now first respondent sued the appellants claiming title to the land, Ndon Ewet, situate at Ekpri Nsukara, Offot, Uyo. He pointed out that, in his evidence and that of his witnesses, PW1 and PW2, it was, clearly, identified and proved that the land is situate at Ikot Oku Idio Offot, Uyo. He noted that it was, also, in evidence that Ewet Offot, Ekpiri Nsukara Offot and Ikot Oku Idio Offot, all in Uyo, were, formerly, one village before they were recognized as separate villages by the Akwa Ibom State Government. He noted that the appellants, equally, admitted the identity and location of the land as situated at Ikot Oku ldio. They, however, called it “Edem Akai” instead of “Ndon Ewet.”

He explained that the first respondent, with leave of the lower court, filed a Further Amended Statement of Claim and deposition on oath to correct only the location of the land from Ekpri Nsukara Offot, Uyo to Ikot Oku Idio Offot, Uyo. He wondered which additional evidence led by the first respondent on the location of the land to warrant further cross examination when he had, already, been adequately and conclusively cross examined on the situs of the land, citing pages 156-165 of the record. Above all, issues as to the location of the land were joined during the pre-trial conference. In his view, it is, therefore, incorrect to contend that the first respondent did not lead evidence to warrant the grant of title to the disputed land as per the Statement of Claim and evidence in the court, citing the findings of the lower court at page 215 of the record.

He, further, submitted that it is incorrect to contend that the lower court granted the first respondent what he did not ask for. He noted that the issue in dispute was, clearly, identified by the parties in their evidence that the land was located at Ikot Oku Idio Offot, Uyo, known and called “Ndon Ewet” or “Edem Akai.” He submitted that the first respondent’s claim was a declaratory action which was for lower court to determine the existence of a subsisting right in accordance with his pleading as was done in the case of Ikedu v Okanu (2010) 183 LRCN 114, 120. He observed that the lower court relied on the evidence and the pleadings in the Amended Statement of Claim, pages 217 – 218 of the record. It was incorrect, therefore, he contended, to claim that the lower court granted the first respondent what he did not claim whereas the name and location of the land were, perfectly, described by the first respondent.

He explained that, before the promulgation of the Land Use Act, Ekpri Nsukara Offot, Uyo, from where Ikot Oku Idio Offot, Uyo was later recognized as a separate village, was in existence, Second Schedule of the Traditional Rulers’ Law (CAP 121), Laws Cross River State of Nigeria, 1979, page 519, (hereinafter referred to TRL), which was adopted in 1987 by the Akwa Ibom State after its creation in 1987. He noted that the three villages, Ekpri Nsukara, Ewet Offot and Ikot Idio Offot, wrongly spelt “Ido” are contained in the Akwa Ibom State Traditional Rulers Law, 2000, Akwa Ibom State Legal Notice No. 1, 2006, page A89, as villages under Offot Clan, Uyo.

He pointed out that the disputed land “Ndon Ewet” or “Edam Akai” was in existence by virtue of the evidence of both parties which the lower, properly, evaluated, especially, when land is immoveable, pages 224 – 228 of the record.

He submitted that the right over “Ndon Ewet” land in Ikot Oku Idio Offot, Uyo existed before the promulgation of the Land Act in 1978. He noted that the right of occupancy by the Donors of Exhibit B to the first respondent existed before then. This is referred to as deemed Customary right of Occupancy in accordance with the position before the Land Use Act. He noted that the land in Uyo is only held in trust by virtues of the preamble and section 1 of the Act.

He contended that the Land Use Act did not abolish the right in exhibit ‘B’ since it was not promulgated for such purpose. In his submission, it was this customary right that the lower court declared for the first respondent by virtue of the Land Tenure Law of Southern Nigeria, 1963, Abioye v Yakubu (2006) 1 LRCN 1, 10 to the effect that “where statutes promulgated to control the use of proprietary right or property right, the rights are not extinguished or abolished except by express provisions in the statute.”

He, therefore, maintained that no provision of the Land Use Act abolished or extinguished the customary right of occupancy over the “Ndon Ewet” land over which the lower court made a declaration in favour of the first respondent.

APPELLANTS’ REPLY
The appellants responded to the issues which the respondent raised in paragraphs 1.03 et seq. of the Reply Brief.

RESOLUTION OF ISSUES ONE AND TWO
We shall deal with the issue of the identity of the land first because proof of identity of a piece of land in dispute is of utmost importance if any success is to be attained. A plaintiff seeking the relief of the nature claimed in this matter has a cardinal duty to show, with certainty, the area of land being claimed and to which he wants the order of court to relate; where he fails to do so, the entire case must stand dismissed, Baruwa v. Ogunsola 4 WACA 159; Elias v. Omobare [1982] 5 S.C. 25; Awere v. Lasoju (1975) N.M.L.R. 100; Sangosanya v. Salawu (1975) N.M.L.R. 27; Aremu v Adetoro (2007) LPELR -546 (SC).

The appellants, as shown above, stridently impugned the findings and conclusion of the lower court. They maintained that the first respondent [as plaintiff] did not prove the identity of the land. The first question in our view, therefore, is whether the appellants [as defendants in their Statement of Defence], specifically, disputed the description of the land given in the respondent’s [plaintiffs] Statement of Claim. Paragraphs 2; 3 and 4 of the Joint Statement of Defence of the Second, Third and Fourth defendants are germane here.

In paragraph 2, they denied knowledge of the land which the plaintiff [now respondent] referred to in his Statement of Claim. They averred that the land of their acquaintance is called “Edem Akai” which is “situate at Ikot Oku Idio Offot in Uyo Local Government Area, Akwa Ibom State.”

More specifically, in paragraph 3 (supra), they denied paragraphs 5, 6, 7, 8 and 9 of the Statement of Claim. They claimed that:

Chief Udo Ikpe of Ewet Offot, Uyo, was not the owner of the land known as ‘Edem Akai’ in Ikot Oku Idio, Offot, Uyo. Mma Asuquo Udo Ikpe at the demise of Chief Asuquo Udo Ikpe became the second defendant’s father’s mistress and moved from Ewet to Ikot Oku ldio, Offot, Uyo and lived thereat near the second defendant’s father. The second defendant’s father, late Etim Essien Ebu, at the time Mma Asuquo Udo Ikpe was his mistress, allocated the land known as ‘Edem Akai’ in Ikot Idio Offot, Uyo, to her to cultivate only at his lifetime. Later on, when Madam Asuquo Udo Ikpe was weak, her daughter, Madam Martina, continued to cultivate the land for her mother’s use.

The averments in paragraph 4 of the Joint Statement of Defence (supra) exposed the poverty of the appellants’ arguments with respect to the identity of the land. They pleaded thus:

The second, third and fourth defendants state further that the second defendant subsequently recovered the land from the said Martina and sold same out in the year 2007. When the said Martina discovered that the land has (sic) been sold, she left the land but was later encouraged to come back by the plaintiff who offered to recover the land in issue from [the] defendant (s) and sell out and share the purchase price because the plaintiff puts out himself as a very powerful and fearful litigant. The said Madam Martina accepted the offer and thereafter the plaintiff brought this action…
[italics supplied].

In dealing with the question whether there was any dispute between the parties as to the identity of the land in issue, the lower court, after setting out the averments in the above paragraphs of the Joint Statement of Defence (supra) proceeded thus:

It is obvious from the foregoing that the defendants, in the opening sentence of their paragraph 2, denied knowledge of the land referred to by the plaintiff but they went further to name a land known as ‘Edem Akai’ also located in Okot Oku Idio Offot in Uyo as the land they know and went on to give their own history of the land and ended up in stating in paragraph 4 that the second defendant had recovered the land from Madam Martina but she was encouraged to come back to the land by the plaintiff who offered to recover the land in issue from the defendant thereafter the plaintiff brought this action…
[page 209 of the record]

It, then, proceeded to make the following findings:
The defendants, therefore, by their own words identified the land known as ‘Edem Akai’ as the land in dispute in this case, which they earlier said they did not know. It is clear also that the defendants know the land in dispute as such it cannot be successfully contended that there was any dispute in respect of the identity of the land. It is merely a case of calling a land two different names which issue been held severally as inconsequential as long as both parties know the land…
[page 209 of the record]

At pages 209 – 210 of the record, the lower court concluded thus:
From the state of pleadings, the defendants did not dispute the area of the land or its location. They merely denied knowledge of the land but went further to identify the land in dispute as Edem Akai, also located at Ikot Oku Idio Offot, the same location as the land named ‘Ndon Ewet’ by the plaintiff… In view of the foregoing, I hold that there was no dispute in respect of the identity of the land.

With due respect to the appellant’s counsel, we find no merit in his complaint against the lower court’s findings and conclusion. Both in their pleadings [paragraphs 3 and 4 (supra), in particular] and oral evidence of the first appellant [as DW1, Page 203 of the record], there was ample support for the findings of the lower court that both parties knew the land in dispute situate at Ikot Oku ldio, Uyo, notwithstanding the divergence in the nomenclature they awarded to it [‘Ndon Ewet’ by the plaintiff/respondent and ‘Edem Akai’ by the appellants].

According to DW1, the land which the plaintiff/respondent laid claim to was, first, allocated to his late father’s mistress, Asuquo Udo Ikpe for cultivation. It was the same land that Madam Martina, Asuquo Udo Ikpe’s daughter, continued to cultivate when her mother, the said Asuquo Udo Ikpe, mistress to the late father of the defendants, became weak and until her mother’s demise. It was the same land that the DW1 recovered from Madam Martina and sold in 2007. It was the same land that the respondent [plaintiff] goaded Madam Martina to return to on the strength of his [plaintiff’s] offer “to recover the land in issue from the defendant.”

Against this background, we agree with the lower court that the parties were ad idem on the identity and location of the land. The only thing was that they called the said land by different names. Like the lower court, we are satisfied that the parties were clear as to the identity of the land in dispute. In other words, the parties were ad idem as to the same area that was being given different names for various reasons, Aromire v Awoyemi [1972] 1 All NLR (Pt. 1) 101; Makanjuola v Balogun [1989] 3 NWLR (Pt. 108) 192; Salami v Gbodoolu [1997] 4 NWLR (Pt. 449) 177.

Thus, the fact that they gave it different names could not have affected the case, Aromire v Awoyemi (supra) 113; Makanjuola v Balogun (supra) 192, 204; Ogbu v Wokoma (supra) 815, 817; Damini and Anor v Abraham and Ors (supra). We, therefore, resolve this first arm of the issue in favour of the respondents and against the appellants.

Next is the question whether the first respondent, who relied on traditional evidence, discharged the burden he assumed by virtue of the averments in his pleadings and oral evidence. In our view, the answer to this question would be determinative of this appeal for it is the pivot on which the plaintiff’s alleged entitlement to the declaration sought gravitates. Before reverting to the pleadings and oral evidence, a restatement of the law on this point would not be out of place.
In this regard, we note the settled position that a plaintiff whose claim is founded on traditional history in proof of a claim for declaration of title to land must plead and establish such facts as: (a) who founded the land; (b) how he founded the land and (c) the particulars of the intervening owners through whom he claims, Nkado v Obiano [1997] 1 NWLR (Pt 482) 374; Ohiaeri v Akabeze [1992] 12 NWLR (Pt 221) 1; Mogaji v Cadbury Nig. Ltd. [1985] 2 NWLR (Pt 7) 393; Elegushi v Oseni [2005] 7 SC (Pt 111) 205, 213 – 214; Ezewusim v Okoro and Anor [1993] 5 NWLR (Pt. 294) 478.
Where the line of succession is not satisfactorily traced and that line of succession has gaps and mysterious linkages which are not established, then such line of succession would be rejected, Dike v Okoloedo [1999] 10 NWLR (Pt. 623) 359; Mogaji v Cadbury Nig. Ltd. (supra); Kupoluyi v. Phillips [2001] 13 NWLR (Pt. 731) 736; Alade v Awo [1975] 4 SC 215; Kalio v Woluchem [1985] 1 NWLR (Pt. 4) 616; Mogaji v Cadbury Nig. Ltd. (supra).

Counsel for the respondent contended in paragraph 3.14, page 6 of the respondent’s brief that “the first respondent, in the instant case, has produced evidence and proved to the satisfaction of the trial court that the disputed land belongs to him having derived title from the donors of exhibit “B.” The said exhibit “B” is titled “Power of Attorney donated by Madam Martina Asukwo Ekpe; Madam Atim Asukwo Ekpe and Aniedi Etim Udo, all of Ewet Offot Uyo, Uyo Local Government Area.”

In effect, the claim of the respondent was that he derived title from the said donors of exhibit “B,” namely, Madam Martina Asukwo Ekpe; Madam Atim Asukwo Ekpe and Aniedi Etim Udo. He, thus, had a duty to establish not only his title to the land in dispute, he was under obligation to go further to satisfy the court on the validity of the title of his grantors, namely, the three named donors in exhibit “B,” Mogaji v Cadbury Nigeria Ltd [1985] 2 NWLR (Pt. 7) 393; Ogunleye v Oni [1990] 2 NWLR (Pt.135) 245; Adejumo v Ayantegbe [1989] 3 NWLR (Pt.118) 417; Alli v Alesinloye [2000] 6 NWLR (Pt. 660) 177.
In other words, he had a duty to plead and establish by oral evidence how the three donors came to have title vested in them, Mogaji v Cadbury Nigeria Ltd(supra); Onyido v. Ajemba [1991] 4 NWLR (Pt. 184)
203. Where he fails to establish how those three donors got onto the land, the basis of his traditional evidence would lack credibility, Owoade v. Omitola [1988] 2 NWLR (Pt.77) 413.

At the lower court, the plaintiff/respondent relied on traditional history. The averments in paragraphs 4; 6; 7; 8; 9; 10; 11; 12 and 13 of the Further Amended Statement of Claim [page 117 of the record] are very germane:
4. The land known and called ‘Ndon Ewet’ located at Ikot Oku Idio Offot, Uyo Local Government Area was jointly owned by Madam Asuquo Udo Ikpe, Madam Atim Asuquo Udo Ikpe and Aniedi Etim Udo all of Ewet Offot, Uyo, as a family land up to and including November 19, 2006 [italics for emphasis; they donated the Power of Attorney to the respondent on November 20, 2006];
5. …
6. The disputed land was deforested by late Chief Udo Ikpe of Nung Obio Akpan, Ewet Offot, Uyo Local Government Area who was married to late Madam Ikwo Udo Ikpe and had a son called Asuquo Udo Ikpe who had a son called Etim alias Michael Asuquo Udo Ikpe who died prematurely;

7. After the death of Chief Udo lkpe, Chief Asuquo Udo Ikpe of Ewet Offot, Uyo, took over the said land in dispute and married Mma Asuquo Udo Ikpe;

8. The products of the marriage between Chief Asuquo Udo Ikpe of Ewet Offot, Uyo and Mma Asuquo Udo Ikpe were Martina Asuquo Udo Ikpe; Atim Asuquo Udo Ikpe and Etim, alias Michael Asuquo Udo Ikpe, who died prematurely [italics supplied];

9. All the funeral rites of late Chief Asuquo Udo Ikpe were handled by Madam Martina Asuquo Udo Ikpe and Madam Atim Asukwo Udo Ikpe [italics supplied];

10. In the year 2003, the second defendant who is also called Anietie Peter Etim disputed over the ownership of the land with Madam Atim Asuquo, alias Madam Atim Asuquo Udo lkpe and the latter instituted action against the second defendant before Ekpiri Nsukara Offot Village Council claiming the land [italics supplied];

11. The Ekpiri Nsukara Offot Village Council presided over by the Village head, Chief Linus Essien, took evidence gave judgment in favour of Madam Atim Asukwo Udo Ikpe. The proceedings of the Village Council dated July 2, 2003, are pleaded and shall be relied upon at the trial. Judgment was delivered in favour of Madam Atim Asukwo Ikpe alias Atim Asukwo Udo Ikpe on July 11, 2003 [italics supplied];

12. The plaintiff when he showed interest in the disputed land was presented with the proceedings from the Ekpiri Nsukara Offot Village Council and after reading same was convinced that the land belonged to Madam Atim Asukwo Ikpe and members of her nuclear family, without any encumbrances;

13. Madam Atim Asukwo Udo Ikpe, Madam Martina Udo Ikpe and Aniedi Etim Udo consequently gave the plaintiff an Irrevocable Power of Attorney …in respect of the said land…

As indicated above, the claim of the respondent was that he derived title from the said donors of exhibit “B,” namely, Madam Martina Asukwo Ekpe; Madam Atim Asukwo Ekpe and Aniedi Etim Udo. We pointed out that, in the circumstance, he had a duty to plead and establish by oral evidence how the three donors came to have title vested in them, Mogaji v Cadbury Nigeria Ltd (supra); Onyido v. Ajemba (supra). If he failed to establish how those three donors got onto the land, the basis of his traditional evidence would lack credibility, Owoade v. Omitola (supra).

Against this background, we note the instructive submission of the appellants’ counsel on this issue. At page 10 [paragraph 4.10 of the appellants’ brief], counsel contended, and we find considerable force in his contention, that:
Worse still, the first respondent in his Further Amended Statement of Claim pleaded that the land was a family property but in exhibit A, which the trial court found as evidence of arbitration though not binding, the council declared the land in favour of Atim Asuquo Ikpe alone and throughout the case there was no explanation as to how the same land was transferred through a Power of Attorney [exhibit B] by three persons…The question is what connection has exhibit B with Madam Atim Asuquo Ikpe’s family when there is nothing linking the unnamed family with the property described in exhibit A. The answer is that there was no link and that the case of the plaintiff is incurably bad and ought to have been dismissed.

In our view, these submissions are well-taken. Even on the state of pleadings alone, the plaintiff [now respondent] did not succeed in discharging the obligation he imposed on himself by his positive assertion/claim that he derived title from the said donors of exhibit “B.” We, thus, endorse the above submissions of the appellants’ counsel: submissions which find firm and ample anchorage on binding authorities.

At page 223 of the record, the lower court stated thus “for the plaintiff to succeed in his claim for title, he must be able to establish the title of Madam Martina Ikpe, Madam Atim Ikpe and Aniedi Etim Udo.” However, in resolving the issue, the court proceeded thus:
I had set out the traditional history adduced by the plaintiff to the effect that the land in dispute was deforested by late Chief Udo Ikpe and on his demise, his son, Asukwo Udo Ikpe inherited the land, and that Asukwo Udo Ikpe married Mma Asukwo Udo Ikpe and on his demise his daughters, Martina Asukwo Udo Ikpe and Atim Asukwo Udo Ikpe inherited the land…
[page 224 of the record, italics supplied].

Even at the risk of wearisome iteration, we find that we have to set out the submissions of the appellants’ counsel on this point, once more, for they expose the vacuity of the lower court’s reasoning and conclusion.

Worse still, the first respondent in his Further Amended Statement of Claim pleaded that the land was a family property but in exhibit A, which the trial court found as evidence of arbitration though not binding, the council declared the land in favour of Atim Asuquo Ikpe alone and throughout the case there was no explanation as to how the same land was transferred through a Power of Attorney [exhibit B] by three persons…The question is what connection has exhibit B with Madam Atim Asuquo Ikpe’s family when there is nothing linking the unnamed family with the property described in exhibit A. The answer is that there was no link and that the case of the plaintiff is incurably bad and ought to have been dismissed.

That is not all. At page 225 of the record, the lower court reasoned thus:
From the traditional history of the defendants [now appellants], they have admitted that one of the donors of exhibit B, Madam Martina, had been in possession of the land and that her mother, Mma Asukwo Udo Ikpe, had been in possession before her. This evidence supports the case of the plaintiff as the defendants have acknowledged the fact that at least one of the donors of exhibit B, to whom the plaintiff paid N200,000.00 had been in possession of the land. The defendants therefore had the burden of proving by credible evidence that Mma Asukwo Ikpe came into the land as mistress to her father. This, he failed to do.

With due respect, we find this a curious piece of reasoning. As noted above, the plaintiff’s case was that he derived title to the land from the donors of exhibit B. His averments relating to traditional history [paragraphs 4; 6; 7; 8; 9; 10; 11; 12 and 13 of the Further Amended Statement of Claim, page 117 of the record] had, earlier, been set out.

We had prayed in aid Dike v. Okoloedo (supra); Mogaji v Cadbury Nig. Ltd. (supra); Kupoluyi v. Phillips (supra); Alade v. Awo (supra); Kalio v. Woluchem (supra) as authorities for the view that traditional history should not have gaps and mysterious linkages in the pleadings, Dike v. Okoloedo (supra); Mogaji v Cadbury Nig. Ltd. (supra); Kupoluyi v. Phillips (supra); Alade v. Awo [1975] 4 SC 215; Kalio v. Woluchem [1985] 1 NWLR (Pt. 4) 616. Indeed, Dike v. Okoloedo (supra); Mogaji v Cadbury Nig. Ltd. (supra); Kupoluyi v. Phillips (supra); Alade v. Awo (supra); Kalio v. Woluchem (supra), firmly, established that such gaps and mysterious linkages must prompt a rejection of the plaintiff’s evidence of traditional history.

Thus, having failed to establish the root of title he pleaded, the respondent [as plaintiff] could not be favoured with a judgment founded on acts of possession. The authorities of our acquaintance do not favour the above position of the lower court. Specifically, the law is that in an action for declaration of title to land, where a plaintiff pleads a root of title but fails to prove it, he cannot be allowed to substitute the root of title that has failed with acts of possession.
The rationale is that, in such a case, the root of title which the plaintiff pleaded was the fons et origo, that is, the foundation and origin of his title, Balogun v Akanji [1988] 1 NWLR (Pt. 70) 301; [1988] 2 SCNJ (Pt.1) 104, 125 – 126; Fasoro v. Beyioku [1988] 2 NWLR (Pt. 76) 263; [1988] 4 SCNJ 23, 29. The decision in Odofin v. Ayoola [1984] 15 NSCC 711, 731 painted this position in this picturesque metaphor ‘when the root of title pleaded ceases to stand, the stems and branches will fall with the root.”

In all, we agree with the appellants that, having regard to the state of the plaintiff’s pleading and oral evidence, he did not discharge the obligation which leading authorities had, eloquently, enunciated, as shown above. We, therefore, resolve this arm of this issue in favour of the appellants. We hold that, against this background, the lower court erred in its declaration of the plaintiff’s entitlement to right of occupancy over the land in dispute.

In our humble view, with this conclusion, the question which the appellants posed in their second issue, namely, whether the trial court was right in granting the first respondent customary right of occupancy of the disputed land, has become otiose, having become an academic question in the sense that the said question is now spent.

It will not confer any additional benefit on the appellants since we had, already, returned a definitive answer to that question, Tanimola v Mapping Godatta Limited [1995] 6 NWLR (Pt. 403) 517; Nwoboshi v A.C.B. [1995] 6 NWLR (Pt. 404) 658; Ogbonna v. President F.R.N. [1997] 5 NWLR (Pt.504) 281; Ndulue v Ibezim [2002] 12 NWLR (Pt.780) 139.

We shall say one more word on this question of the court’s declaration of the plaintiff’s entitlement to a right of occupancy. Exhibit B donated to the respondent the power, inter alia, to transfer, dispose, mortgage, pledge etc the land in question in this appeal. That was on November 20, 2006. Instructively, counsel on both sides agitated their effervescent arguments without any reference to the impact of the Land Use Act, 1978, on the transaction evidenced in the said exhibit B.

On our part, we cannot, in the resolution of the questions raised in this appeal, raise that question now. In the absence of any prompting from counsel, we cannot do so without reference to them, that is, without affording them the opportunity of further arguments, Adegoke v Adibi (1992) 5 NWLR (Pt 242) 410; Atanda v Lakanmi (1974) 3 SC 109; Odiase v Agho (1972) 3 SC 71; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17; Adeniji v Adeniji (1972) 4 SC 10; Commissioner for Works, Benue State and Anor v Devcom Development Society Ltd (1988) 3 NWLR (Pt 83) 407; NHDS Ltd and Anor v Mumuni (1977) 2 SC 57; (1977) NSCC 65.

In the circumstance, we shall say no more on the impact of the said Land Use Act on the transactions evidenced in the said exhibit “B”. That is notwithstanding our appreciation of the import of the decisions in Savannah Bank v Ajilo [1989] 1 NSCC 135; Union Bank of Nigeria Plc v Astra Builders (WA) Ltd [2010] All FWLR (Pt 518) 865, 885- 886; Union Bank of Nig Ltd v Ayodare and Sons Nig Ltd [2007] 13 NWLR (Pt 1052) 567; Olalomi Industries Ltd v N.I.D.B. [2009] 29 NSCQR 240; International ile (Nig) Ltd v Aderemi and Ors [1996] 8 NWLR (Pt. 464) 15, 42; Brosette v. Ilemobola and Ors (2008) 154 LRCN 64 – 109; Yaro v Arewa Construction and Ors (2008) 154 LRCN 163-217; Calabar Central Co-operative and Ors v Ekpo (2008) All FWLR (Pt 418) 198 – 244.

ISSUE THREE
Whether the plaintiff [now the first respondent] identified the disputed land ‘Ndon Ewet’ situate at Ikot Oku Idio Offot, Uyo, distinctly and properly, in this case?

APPELLANTS’ CONTENTION
On this issue, counsel for the appellants submitted that, considering the entire evidence of PW1, PW2 and PW3, the plaintiff did not identify the land over which he was seeking a declaration of title in certainty to warrant the grant of title to him, Aremu v Adetoro [2007] 31 NSCQR 62. He noted that, in this case, the plaintiff chose to rely on his description. He wondered whether a Surveyor, relying on the evidence of PW1, PW2 and PW3, could produce an accurate plan of the land in dispute.

He observed that, in view of the discrepancies and contradictions in the evidence of PW1, PW2 and PW3 on the location of the land and description of same, particularly, during cross-examination, a surveyor cannot rely on that evidence and make an accurate survey plan since the survey plan will require the area of the land, the local of the land, the boundaries of the land and the features on the land. Citing pages 156-166; 168; 172; 179 of the record, he noted that, in the instant case, the witnesses, during cross-examination, gave contradictory evidence on the location of the land just as in the case of Aremu v Adetoro (supra).

He canvassed the further view that proof of identity of a piece of land in dispute is of utmost importance if would be attained in any land suit. He maintained that a plaintiff seeking the relief of title has a cardinal duty to show with certainty, the area of being claimed and to which he wants the order of court to relate. The case, in his submission, would be dismissed where he failed to do so, Aremu v Adetoro (supra) 83.

He submitted that, since the first respondent failed to identify the land he claimed with certainty, his claim for declaration of title must fail, irrespective of the weakness in the case of the defence since the law is that a plaintiff in an action for declaration of title must succeed on the strength of his case and not on the weakness of the defence, Aremu v Adetoro (supra) 83. He urged the court to hold that the first respondent did not identify the land over which he sought title with certainty to warrant the grant of title or right of occupancy as the lower court did.

RESPONDENT’S ARGUMENTS
For the respondent, it was submitted that the identity of the land was settled by the first respondent and the appellants as the lower court, rightly, held. Counsel pointed out that the first respondent distinctly, clearly and positively gave the location and boundaries of the land both in his pleadings, his statement on oath and during cross-Examination. He pointed out that the appellants agreed to this location and description during cross examination, pages 185-186 of the record.

He observed that the appellants responses in cross examination pointed positively and unequivocally to the fact that they knew and identified the disputed land, page 217 of the record. He explained that the first respondent and his witnesses identified the land and its location in “Ndon Ewet” situate in “Ikot Oku Idio Offot, Uyo.”

He drew attention to the argument in Issue one. He noted that he had explained why the PW1, PW2 and PW3, during cross-examination by the appellants’ counsel, answered that the land was located in Ewet, Ekpri Nsukara and Ikot Oku Idio. He reiterated the fact that the three villages were, previously, one village before their recognition by the Akwa Ibom State government as separate villages. However, citizens from each village, including the parties in this suit, continue to own and maintain their landed property wherever they were/are located.

He opined that a survey plan is not a sine qua non for the identification of a disputed land except where the boundaries are uncertain. He noted that, in the instant case, both parties agreed on the boundaries of the land which the appellant “recovered” and sold to an undisclosed purchaser, Dakolo v Rewane-Dakolo (2011) 108 LRCN 1, 8; Ogbu v Wokoma (2006) 133 LRCN 191, 194.

He drew attention to pages 38, 85, 117 and 156 of the record. There, the first respondent gave the name of the land as “Ndon Ewet” located in Ikot Oku Idio Offot, Uyo. He also stated the names of persons who share common boundaries with the land. He referred to the findings of the lower court on the issue of identity of the land. He submitted that a survey plan of the land was unnecessary in the circumstance of this case.

This is because the parties were ad idem on the identity and location of the disputed land, Oladunjoye (2000) 74 LRCN 673, 677; Salami v Gbodoolu (1997) 49 LRCN 1020, 1036. He canvassed the view that, from the totality of the evidence of both parties, as the lower court properly found, the first respondent and his witnesses knew and, properly, identified and described the land. The appellants acknowledged and admitted that description.

APPELIANTS’ REPLY
Again, the appellants, in their Reply brief, see, paragraphs 1.04 -1.08 thereof, joined issues with the first respondent on the issues he raised in his brief.

RESOLUTION OF THE ISSUE
This issue is, inextricably, tied to the first arm of the first issue on the question of the identity of the land in dispute. The appellants made so much weather of the fact that the respondent [as plaintiff] did not file a survey plan at the lower court. It is obvious that they glossed over the fact that, since, as the lower court even found and endorsed, the land in dispute was known to the parties, it was unnecessary to have a survey plan, whose main aim is determine the identity of the land, Nwankwo v Ofomata [2009] 11 NWLR (Pt. 1153) 496; Polo v Edremoda [2009] 8 NWLR (Pt. 1142) 166, 195; Anyanwu and Ors v Uzowuaka and Ors (2009) LPELR – 515 (SC) 34 – 35, E-C; [2009] 3 NWLR (Pt. 1159) 445.
Put differently, where the land in dispute is identifiable by all the parties, a survey plan is not a desideratum, Archibong and Ors v Ita and Ors (2004) LPELR -535 (SC) 33, E-F, per Tobi JSC; Kwadzo v Adjei (1944) 10 WACA 274; Atolagbe v Shorun [1985] 1 NWLR (Pt 2) 360. Hence, where the identity of the land in dispute was known to the parties, as in the instant case, a survey plan would be unnecessary. As such, the absence of such a plan would not be fatal to the plaintiff’s case if proper description of the land is available in the proceedings, Etiko v Aroyewun (1959) 4 FSC 129; [1959] SCNLR 308.
In this case, as the lower court found, a finding we had earlier confirmed in the course of this judgment, the parties knew the identity of the land. Thus, the proof of its identity ceased to be an absolute necessity, Olunjile v. Adeagbo [1988] 19 NSCC (Pt. 1) 625; Chief Daniel Allison Ibuluya and Ors v. Tom Benebo Dikibo and Ors [1976] 6 SC 97 , 107; Chief Sokpui v. Chief Agbozo (1951) 13 WACA 241; Atolagbe v. Shorun (supra); Arabe v Asanlu [1980] 5-7 SC 78, 92.

At the lower court, pursuant to the pleadings [page 38;]; paragraphs 4 and 5 of the Further Amended Statement of Claim, [pages 85; 117 of the record], the plaintiff [now respondent] gave evidence of the location and boundary neighbours of the said land. As shown above, the DW1 was emphatic that he recovered the said land from Madam Martina and sold it. At paragraph 2 of the Joint Statement of Defence [page 61 of the record], the appellants averred that evidence would be led to show that those who own land around “Edem Akai” are from the same family with them. However, as the lower court found at page 217 of the record, the defendants/ appellants led no such evidence before that court.

What is more, from the responses of the DW1 to the questions put to him in cross examination [pages 183 et seq], the appellant knew and identified the land. In all, we agree with the respondent’s counsel that a survey plan of the land was unnecessary in the circumstance of this case. This is because the parties were ad idem on the identity and location of the disputed land, Olunjile v. Adeagbo (supra); Chief Daniel Allison Ibuluya and Ors v. Tom Benebo Dikibo and Ors (supra); Chief Sokpui v. Chief Agbozo (supra); Atolagbe v. Shorun (supra); Arabe v Asanlu (supra); a survey plan was, therefore, not a desideratum, Archibong and Ors v Ita and Ors (supra); Kwadzo v Adjei (supra); Atolagbe v Shorun (supra).
In our view, as there was cogent evidence of the identity of the land, the absence of a survey plan did not make any difference, Aremu v Adetoro (supra) at 262 A – C; Atolagbe v Shorun (supra) 360; Adedeji v Oloso and Anor (supra). Contrary to the appellants’ contention, the absence of a survey plan was not fatal to the plaintiff’s case since the proper description of the land was available in the proceedings, Etiko v Aroyewun (supra). We, equally, find no merit in the appellants’ complaint on this issue. We resolve it against them.

This finding notwithstanding, we had held that, against the background of the plaintiff’s [respondent’s] failure to prove his root of title, the lower court erred in its declaration of his [plaintiff’s] entitlement to right of occupancy over the land in dispute. Having failed to prove his root of title as pleaded, the lower court should have enter an order for the dismissal of his claim. It failed to do so.

On our part, we find that we have an obligation to dismiss the case, Dike v. Okoloedo (supra); Mogaji v Cadbury Nig. Ltd, (supra); Kupoluyi v. Phillips (supra); Alade v. Awo [1975] 4 SC 215; Kalio v. Woluchem [1985] 1 NWLR (Pt. 4) 616. Indeed, Dike v. Okoloedo (supra); Mogaji v Cadbury Nig. Ltd. (supra); Kupoluyi v. Phillips (supra); Alade v. Awo (supra); Kalio v. Woluchem.

Since the root of title which he pleaded ceased to stand, the stems and branches should fall with the root, Odofin v. Ayoola (supra). In the circumstance, we allow this appeal on this arm of the first issue. Appeal allowed. The judgment of the lower court delivered on November 26, 2012 is hereby set aside. The appellants shall be favoured with the costs of this appeal which we assess and fix at N30,000.00. Judgment for the appellant.

UZO I. NDUKWE-ANYANWU, J.C.A.: I agree with the reasoning and conclusions in the lead judgment. I have nothing more to add.

ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in advance, the Judgment just delivered by my learned Brother, Chima Centus Nweze, JCA, allowing this appeal.

The issues raised in this appeal have, in his characteristic manner, been comprehensively addressed by my learned brother, and, I am in agreement with his reasoning and conclusion, which I adopt as mine.
I abide by the Orders made in the lead Judgment, including the order as to costs.

Appearances

Christopher Ekpo, for Etim EffiongFor Appellant

AND

Ekpa B. EkpaFor Respondent