ANUKWU & ANOR v. OFOLUE
(2022)LCN/16229(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Monday, June 20, 2022
CA/AS/194/2017
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. MR. AZUKA ANUKWU 2. MRS. A. I. IMEGBU APPELANT(S)
And
MR. ERIC OFOLUE RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN AN ACTION SEEKING DECLARATION OF TITLE TO LAND
Respondent claimed for damages for trespass and an order for perpetual injunction. The appellants denied the title of the respondent, claiming that title was in them. The title of the respondent was therefore put in issue. See Kponoglo v. Kodaja (1933) 2 WACA 24, Amata v. Omofuma (1997) 2 NWLR (Pt. 485) 93, Akintola v. Lasupo (1991) 3 NWLR (Pt. 180) 508 and Idesoh v. Ordia (1997) 47 LRCN 252. The burden of proof was on the respondent to show his entitlement to his claim and he was bound to rely on the strength of his own case and not on the weakness of the case of his opponent. See Kodilinye v. Odu (1935) 2 WACA 336, Mogaji v. Cadbury Nigeria Limited (1985) 2 NWLR (Pt. 7) 393 and Tukuru v. Sabi (2013) 10 NWLR (Pt. 1363) 442. PER EKANEM, J.C.A
THE POSITION OF LAW ON ESTABLISHING A BETTER ROOT OF TITLE TO LAND
It is clear from the pleadings and evidence of the contending parties that they claim to derive title from one common grantor, the Alibor and Umudasiafor family, the original owners of the land in dispute. In such a situation, the law is that the party who establishes a better root of title is entitled to succeed. Generally, the party that obtained an earlier title traceable to the original owner/s is the party who ought to be held to have proved a better title to the land in dispute. See Okelola v. Adeleke (2004) 121 LRCN 4992, 5002 or (2004) 13 NWLR (Pt. 890) 307, 319, Adeniran v. Ashabi (2004) 2 NWLR (Pt. 857) 375, 405, Gege v. Nande (2006) 10 NWLR (Pt. 988) 250, 284, Ugwunze v. Adeleke (2008) 2 NWLR (Pt. 1070) 148, 174-175 and Rabiu v. Adebajo (2012) 15 NWLR (Pt. 1322) 125, 144 and 148. PER EKANEM, J.C.A
THE PRINCIPLE THAT HE WHO ASSERTS MUST PROVE
Section 133 (1) and (2) of the Evidence Act, 2011 supports the position taken by the trial Court. The legal burden of proof in this matter was on the respondent and such a burden does not shift but the evidential burden of proof in the sense of adducing evidence may shift constantly depending on the scale or preponderance of evidence. In the case of Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548, 586 Kekere-Ekun, JSC, opined that:
“Thus, the general rule is that he who asserts must prove. The burden is therefore on the plaintiff to first adduce prima facie evidence in support of his case. Where a prima facie evidence is made out, the burden shifts to the defence to adduce counter-evidence to sustain their defence. Where an allegation is made, positively or negatively and it forms an essential part of a party’s case, the proof of such allegation rests on him.”
See also Imana v. Robinson (1979) 3-4 SC (reprint) 1, Nwavu v. Okoye (2008) 18 NWLR (Pt. 1110) 29 and Okoye v. Nwankwo (2014) 15 NWLR (Pt. 1429) 93. PER EKANEM, J.C.A
INGREDIENTS OF SALE OF LAND UNDER CUSTOMARY LAW
The ingredients of sale of land under customary law are:
1. Payment of purchase price
2. The purchaser is let into possession by the vendor or the handing over of the land
3. The transaction must be in the presence of witnesses.
The names of the witnesses must be pleaded and testified to even if they are dead. See Erinosho v. Owokoniran (1965) NMLR 479, Orunengimo v. Egebe (2008) ALL FWLR (Pt. 400) 650, Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96 and Atanda v. Commissioner for Lands and Housing, Kwara State (2018) 1 NWLR (Pt. 1599) 32. PER EKANEM, J.C.A
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Delta State sitting at Issele-Uku (the trial Court) delivered on 24/1/2017 in Suit No. A/72/2017 by C. O. Ogisi, J. In the judgment, the trial Court found that the claim of the respondent (as claimant) succeeded and it therefore entered judgment in his favour against the appellants as defendants.
Aggrieved by the decision, the appellants appealed to this Court by the means of a notice of appeal that was filed on 3/2/2017. The notice of appeal was subsequently amended by the order of this Court that was given on 27/2/2018. The amended notice of appeal incorporates five grounds of appeal.
The facts of the case leading to this appeal may be summarized as follows: the dispute in this matter is about ownership of land and the land in dispute is situate at No. 2 Chukwuka Close, off Nweli Street, Umuagu Quarters, Asaba (Delta State). It was originally owned by the Alibo/Umudasiafor family of Umuagu Quarters, Asaba. The respondent claimed that the land in dispute was sold to him on 2/10/1982 by the said family through its accredited representatives, the Alibor/Umudasiafor Land Committee and that he was put in possession of the land in the presence of witnesses. The sale was with the consent of the Diokpa (family head) and Chairman of the Committee as well as principal members of the family. The appellants no longer dispute the sale in this appeal but their contention is that the same family had sold the land along with nineteen other contiguous parcels of land to one Mr. D. N. Nkpaya a.k.a. Mr. Adimkpaya long before 2/10/1982. The said Nkpaya sold the land to one Engr. Callistus Ikemefune on 20/1/1976. The appellants are beneficiaries of the estate of Engr. Callistus Ikemefune who is deceased.
In his further amended statement of claim, the respondent claimed the following reliefs against the appellants:
(1) The sum of N5,000,000.00 (Five Million Naira) against the Defendants being special and general damages for trespass in that Defendants on or about the 24th of February, 2011 without the consent or authority of the Claimant first had and obtained, broke and entered into the piece or parcel of land in the lawful possession and control of the Claimant lying and situate at No. 2 Chukwuma Close, Off Nweli Street, Asaba, chased away the Claimant’s workers, erected a wall fence round the said land and mounted a gate on same.
(2) An Order of Perpetual Injunction restraining the Defendants by themselves, their servants, agents or privies, workmen or otherwise howsoever from further entering into the said land or interfering with the Claimant’s possession of same.
The appellants filed a joint amended statement of defence setting up the defence summarized above.
The respondent testified through two witnesses including himself and tendered Exhibits C1-C4. The appellants testified through two witnesses and tendered Exhibits D2-D6. The trial Court, as I have already stated, found in favour of the respondent and awarded the sum of N500,000.00 as general damages and, injunction restraining the appellants from further trespass on the land in dispute.
In the amended appellants’ brief of argument settled by L. N. Olisa, Esq., the following issues have been identified for the determination of the appeal:
1. Whether the respondent, as the claimant at the lower Court was entitled to judgment in the face of unchallenged evidence of the appellants that as at 1982 when the land in dispute was purportedly sold to the respondent, the Alibo and Umudasiafor family had been divested of their interest therein. (Ground one of the amended notice of appeal)
2. Whether in proving the appellant’s defence in rebuttal to the respondent’s suit at the lower Court, the appellants are under any legal obligation to call a witness from the Alibor-Umudasiafor family to show that the land was actually sold to Engr. Calistus Ikemefune whose predecessor-in-title was one D. N. Adimkpaya. (Ground two of amended notice of appeal).
3. Whether the learned trial judge was right to hold that the appellants failed to tender the receipt evidencing the purchase (sic) of 20 (twenty) plots of land, including the land in dispute, when in fact the appellants’ attempt to lead evidence through DW1 on the 6th day of June, 2016 to lay foundation for the tendering of a photocopy of the said receipt was disallowed by the lower Court. (Ground three of the amended notice of appeal).
4. Whether the evidence of the appellants that Exhibit D5 was issued to them in the name of Engr. Calistus Ikemefune was wrongly evaluated by the learned trial judge when she held that the receipt having been issued in the name of a deceased person, was unreliable as proof of acknowledgment of possession by the Umudasiafor family. (Ground four of the amended notice of appeal).
5. Whether from the pleadings and totality of the evidence adduced by the parties, it can be said that the identity of the land in dispute is in issue. (Ground five of the amended notice of appeal).
Respondent’s counsel, F. T. Eruli-Ede, Esq., formulated one issue for the resolution of the appeal, namely:
“Whether the Court below was right in finding for the respondent or granting the reliefs sought by him.”
The essence of formulation of issues is to enable the parties to narrow the issues in controversy in the grounds of appeal into terse compact formulations which take cognizance of the same issues running through more than one ground of appeal. A number of grounds of appeal where appropriate could be formulated into a single issue running through them instead of formulating an issue from each ground of appeal. See Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388) 402, 435, Ikechukwu v. INEC (2014) 17 NWLR (PT. 1436) 255, 286-287 and Mekwunye v. W.A.E.C (2020) 6 NWLR (Pt. 1719) 1, 19.
Appellants’ five issues from the five grounds of appeal could appropriately have been condensed into one issue which the respondent’s counsel did. It is no wonder that appellants’ counsel argued all the five issues together.
In the light of what I have said above, I shall be guided in the determination of this appeal by the single issue crafted by respondent’s counsel.
Appellants’ counsel contended that by the reliefs that the respondent claimed, title to the land in dispute was put in issue and that the case of the respondent was built on the presumption that as at 1982, the purchase of the land was valid. It was posited by him that the presumption was rebutted by appellants who, according to him, led evidence to show that the land in dispute together with nineteen other parcels of land was sold to Adimkpaya in 1975 and the said Adimkpaya sold the land to appellants’ predecessor-in-title, Callistus Ikemefune in 1976. He emphasized that the defence of the appellants was not that the land was not sold to the respondent by the family of Alibo and Umudasiafor but that the said family did not have an interest to transfer as at 1982.
Counsel argued that the respondent did not deny the facts as alleged in the statement of defence nor did he demolish the case of the appellants in cross-examination. He referred to the evidence of CW1 and contended that he did not deny the fact of the sale of the land in 1975. He added that the appellants proved ownership of the land around the land in dispute and that they sold land surrounding the land in dispute to several other persons whom he named. It was position that being a new issue and, according to him, raised as a confession and avoidance, the respondent ought to have denied it. The failure, he stated, established that the sale of the land to the respondent was null and void, and that no title passed to him (the respondent). It was his further argument that the defence of prior sale shifted the burden of proof to the respondent which the respondent failed to discharge.
Counsel attacked the evidence of the CW1 and submitted that his evidence was suspect for the reasons set out by him. He referred to the evidence of DW1 who he said is a member of the Adimkpaya family to the effect that his father, Adimkpaya bought twenty plots of land and how the land in dispute was sold to appellants’ predecessor-in-title. He also referred to the additional written deposition of the DW1 which the Court disallowed and stated that the deposition sought to lay foundation for the admission of a photocopy of the purchase receipt for the twenty plots of land. He lamented that the learned trial judge disallowed the testimony on the ground that leave was not sought to introduce it. He contended that the rules of Court do not require leave before the additional testimony is introduced. He raised a jeremiad that the record of proceedings at page 177 of the record of appeal does not contain all that transpired on that day including the denial by the Court of appellants’ right to use the additional testimony of the DW1. He therefore expressed surprise that the learned trial judge held that the appellants did not tender the receipt. He posited that the denial of the appellants’ right to use the additional written deposition occasioned a miscarriage of justice.
Continuing, counsel posited that the trial Court’s reasoning that the land described in Exhibit D1 was not the same as the land in dispute had no legal foundation as the identity of the land was not in dispute as it was not raised in the pleadings of the parties. In any event, he contended, Exhibit D2 ascertains the identity of the land in Exhibit D1. He called in support Section 129 (4), (5) and (8) of the Evidence Act, 2011.
Counsel argued that the trial Court erred in holding that the failure of the appellants to call a witness from the Alibo-Umudasiafor family was fatal to their case as there was no onus on them to prove that they are entitled to any relief. He added that the respondent cannot question the content of Exhibit D1 as it was not made in his favour. He restated that the fulcrum of the defence of the appellants at the trial Court was the prior sale of the land in dispute to Adimkpaya and that they (appellants) fully discharged the burden of proving the facts as contained in their pleading thus shifting the burden to the respondent.
Respondent’s counsel stated that he (the respondent) traced his title to the undisputed owners of the land (the Umudasiafor family) and that he gave cogent evidence of purchase of the land from the family. He referred to Exhibit C1 and the evidence of CW1 and submitted that the evidence of the respondent was unchallenged. He noted that while the appellants alleged a customary sale in 1975, they did not mention in their pleadings the existence of witnesses to the transaction nor did they provide names of witnesses; they did not also call such witnesses to testify or show that the alleged purchaser was put in possession. He referred to the evidence of DW1 and Exhibit D1 and noted that there was nothing in the document to show that the transaction was conducted in a representative capacity. He submitted that the transaction in the document concerned the personal property of the grantor rather than a transfer of interest in family land performed in a representative capacity. It was his position that it was untenable to pass the land in dispute as the same one that the appellants claim that Adimkpaya acquired in 1975.
Counsel referred to the finding of the trial Court on Exhibit D1 and submitted that the argument of appellants’ counsel that the trial Court held that the identity of the land was in issue was wrong. He noted that the appellants did not appeal against the finding of the trial Court. He argued that having pleaded and traced their root of title to Adimkpaya, the appellants ought to have satisfied the Court on the validity of his (Adimkpaya’s) title which he said they failed to do.
He urged the Court to discountenance the argument of appellants’ counsel on the ruling of the trial Court disallowing the use of additional written deposition as there is no appeal against the ruling. He pointed out that the appellants failed to tender the receipt that they pleaded was evidence of the 1975 purchase by Adimkpaya. It was posited by him that Exhibit D5 was a fabrication as it shows that money was received from Engr. Ikemefune in 2/3/2011 but the said Ikemefune died in 1999.
Counsel submitted that it was erroneous to suggest that facts averred in the statement of defence had been admitted as there was a joinder of issues in the pleadings. He finally urged the Court not to disturb the finding of the trial Court as there was evidence supporting the same.
I have read the reply brief of the appellants it is nothing but a re-arguing of the points in their original brief of argument or an attempt to prettify the same. Since that is not the function of a reply brief, I will discountenance the said reply brief. See Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61.
RESOLUTION
Respondent claimed for damages for trespass and an order for perpetual injunction. The appellants denied the title of the respondent, claiming that title was in them. The title of the respondent was therefore put in issue. See Kponoglo v. Kodaja (1933) 2 WACA 24, Amata v. Omofuma (1997) 2 NWLR (Pt. 485) 93, Akintola v. Lasupo (1991) 3 NWLR (Pt. 180) 508 and Idesoh v. Ordia (1997) 47 LRCN 252. The burden of proof was on the respondent to show his entitlement to his claim and he was bound to rely on the strength of his own case and not on the weakness of the case of his opponent. See Kodilinye v. Odu (1935) 2 WACA 336, Mogaji v. Cadbury Nigeria Limited (1985) 2 NWLR (Pt. 7) 393 and Tukuru v. Sabi (2013) 10 NWLR (Pt. 1363) 442.
It is clear from the pleadings and evidence of the contending parties that they claim to derive title from one common grantor, the Alibor and Umudasiafor family, the original owners of the land in dispute. In such a situation, the law is that the party who establishes a better root of title is entitled to succeed. Generally, the party that obtained an earlier title traceable to the original owner/s is the party who ought to be held to have proved a better title to the land in dispute. See Okelola v. Adeleke (2004) 121 LRCN 4992, 5002 or (2004) 13 NWLR (Pt. 890) 307, 319, Adeniran v. Ashabi (2004) 2 NWLR (Pt. 857) 375, 405, Gege v. Nande (2006) 10 NWLR (Pt. 988) 250, 284, Ugwunze v. Adeleke (2008) 2 NWLR (Pt. 1070) 148, 174-175 and Rabiu v. Adebajo (2012) 15 NWLR (Pt. 1322) 125, 144 and 148.
The respondent led unassailable evidence of the sale of the land in dispute to him by the Alibor and Umudasiafor family, in 1982 and his being put into possession of the same by the family. He tendered Exhibit C1 as the purchase receipt. His evidence was confirmed by the evidence of CW1, a member of the Alibor and Umudasiafor Land Committee. The evidence of the respondent was unchallenged by the appellants (indeed appellants’ counsel conceded this at page 25 par. 8.180 of his brief of argument) and so the trial Court was right in believing the same and holding at page 115 of the record that:
“It follows therefore that the Claimant has prima facie proved his title to the land in dispute. As it stands, the burden will then shift to the Defendants to dislodge the Claim of the claimant.”
Section 133 (1) and (2) of the Evidence Act, 2011 supports the position taken by the trial Court. The legal burden of proof in this matter was on the respondent and such a burden does not shift but the evidential burden of proof in the sense of adducing evidence may shift constantly depending on the scale or preponderance of evidence. In the case of Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548, 586 Kekere-Ekun, JSC, opined that:
“Thus, the general rule is that he who asserts must prove. The burden is therefore on the plaintiff to first adduce prima facie evidence in support of his case. Where a prima facie evidence is made out, the burden shifts to the defence to adduce counter-evidence to sustain their defence. Where an allegation is made, positively or negatively and it forms an essential part of a party’s case, the proof of such allegation rests on him.”
See also Imana v. Robinson (1979) 3-4 SC (reprint) 1, Nwavu v. Okoye (2008) 18 NWLR (Pt. 1110) 29 and Okoye v. Nwankwo (2014) 15 NWLR (Pt. 1429) 93.
The burden shifted to the appellants to adduce evidence to counter the prima facie case established by the respondent. The case of the appellants was that the land in dispute was sold by the Alibor and Umudasiafor family to Adimkpaya who in turn sold the same to Engr. Callistus Ikemefune, of whom the appellants are beneficiaries. It must be stated that it was not the duty of the respondent to prove that the land had not been sold before 1982. That was not his case. It was the case of the appellants and so it behoved the appellants to lead credible evidence to prove the allegation.
Appellants’ counsel submitted rather stridently that the respondent had admitted the averment in the statement of defence regarding the above allegations as he did not file a reply to the statement of defence to deny the averment. I think his submission is as erroneous as it is startling. The statement of defence was the last pleading at the trial Court. Order 15 Rule 8 (1), (2) and (4) of the High Court of Delta State (Civil Procedure) Rules, 2009 provides:
“(1) If there is no reply to a defence, there is an implied joinder of issues on that defence.
(2) subject to sub-rule (3) –
(a) there is at close of the pleadings an implied joinder of issues on the pleadings last served; and
(b) a party may in his pleading expressly join issue in the next preceding pleading.
(3) Not relevant.
(4) A joinder of issue operates as a denial of every material allegation of fact made in the pleadings on which there is an implied or express joinder of issue unless, in the case of an express joinder of issue, any such allegation is excluded from the joinder and is stated to be admitted, in which case, the express joinder of issue operates as a denial of every other allegation.”
Since the statement of defence was the last pleading in the matter, there was an implied joinder of issues on the averments therein. It cannot therefore be said that there was an admission of the averments therein. No need arose for the respondent to file a reply. In Obot v. CBN (1993) LPELR – 2192 (SC) 28 – 29, Uwais, JSC, opined that:
“In general, it is not necessary for a plaintiff to file a reply if his only intention in doing so is to deny any allegations that the defendant may have made in the statement of defence…The purpose of filing a reply to a statement of defence has been stated by Kawu, JSC, in the case of Akeredolu v. Akinremi (1989) 3 NWLR (Pt. 108) 164 at p. 172 F-G as follow: “Now the rule of practice is that where no counter-claim is filed, a reply is generally unnecessary if its sole object is to deny allegations contained in the statement of defence. The proper function of a reply is to raise, in answer to the defence, any matter which must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raises issues of fact not arising out of the defence… Reply is the proper place for meeting the defence of confession and avoidance.”
None of the circumstances that require the filing of a reply arose in this matter and the submission of the appellants’ counsel that the defence of the appellants amounted to confession and avoidance is baseless. Confession and avoidance is:
“A plea in which a defendant admits allegations but pleads additional facts that deprive the admitted facts of an adverse legal effect. For example, a plea of contributory negligence (before the advent of comparative negligence) was a confession and avoidance.” – Black’s Law Dictionary 10th edition page 361
The defence in a plea of confession and avoidance, must acknowledge or confess the truth of the allegations in the plaintiff’s declaration or averments of facts either directly or by implication and then assert facts which neutralize the legal effect of plaintiff’s declaration.
In the instant case, the averments of the respondent in paragraphs 4, 5 and 6 of the further amended statement of claim as to the sale of the land in dispute to him by the accredited representatives of the Alibo and Umudasiafor family was specifically denied by the appellants in paragraphs 3 and 4 of their amended joint statement of defence. Where then does the idea of confession and avoidance arise? The answer is that it only arises in the imagination of appellants’ counsel.
The appellants alleged a customary sale of the land in dispute by the Alibo and Umudasiafor family to Mr. Adimkpaya in 1975. There is no averment in the statement of defence as to who the witnesses to the transaction were and that Adimkpaya was put in possession of the land. The ingredients of sale of land under customary law are:
1. Payment of purchase price
2. The purchaser is let into possession by the vendor or the handing over of the land
3. The transaction must be in the presence of witnesses.
The names of the witnesses must be pleaded and testified to even if they are dead. See Erinosho v. Owokoniran (1965) NMLR 479, Orunengimo v. Egebe (2008) ALL FWLR (Pt. 400) 650, Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96 and Atanda v. Commissioner for Lands and Housing, Kwara State (2018) 1 NWLR (Pt. 1599) 32.
In the absence of averments stating the names of witnesses to the transaction including the handing over of the land, the defence of the appellants suffered a still birth. Furthermore, the receipt for the sale pleaded by the appellants was not tendered in evidence while no witness to the alleged transaction was called to testify, and so the trial Court was right in holding at page 119 of the record that:
“There is no evidence whatsoever, whether oral or documentary to establish the sale of the land in dispute and adjoining land to D. N Adimkpaya the vendor of the Defendants by Alibor/Umudasiafor family the original owners of the land, so as to dislodge the root of title of the Claimant.”
Counsel for the appellants asserted that an additional statement on oath was filed on 24/5/2016 and adopted by the DW1 but was disallowed by the trial Court on 6/6/2016; that by the deposition, a foundation was sought to be laid for the admissibility of a photocopy of the receipt of the alleged 1975 transaction. I have read the proceedings of 6/6/2016 which is at pages 177 and 178 of the record of appeal: there is absolutely nothing in the proceedings of that day that support the assertion of counsel. The Court is bound by the record of proceedings and will not go outside it in deciding the appeal.
The assertion of counsel that the record of 6/6/2016 does not contain all that transpired on that date is a sneak attack on the record. That is certainly not the way to attack a record of proceedings. For a party to impugn the record of a Court, he must first file an affidavit challenging the record and serve the same on the judge or the registrar of the Court. Thereafter, he will file a motion on notice to amend the record which motion shall be between the parties. The appellate Court will then hear the motion and determine it one way or the other. See Akinyede v. Opere (1967) SCNLR 523 and Andrew v. INEC (2018) 9 NWLR (Pt. 1625) 507, 542. Since the appellants did not follow this procedure except for filing an affidavit of omitted record which bears no address for service nor was it shown to have been served on the necessary person, their challenge of the record of proceedings of 6/6/2016 was a fruitless exercise and I discountenance it.
Since the defence of the appellant was founded on the alleged purchase of the land from the original land-owning family in 1975 and since that was not established, every other alleged transaction regarding the land including the grant by Adimkpaya to Engr. Ikemefune had no foundation upon which to stand. I shall however proceed to consider evidence on those other transactions since this Court is not the final Court.
The DW1 testified that a memorandum of customary grant was executed for and on behalf of the family of Adimkpaya by Mr. Michael Adimkpaya, with his authorization, in favour of Engr. Ikemefune. A copy of the said memorandum was tendered in evidence as Exhibit D1. The learned trial judge examined the document and concluded that the land referred to in it is not the same land as the land in dispute. I have also examined the document by myself and I do not think the conclusion of the learned trial judge is wrong. In the first place, appellants’ counsel was engaging in forensic sophistry when he contended that the learned trial judge was by his conclusion resolving the identity of the land which was not in issue. Certainly, the identity of the land in dispute was not in issue going by the pleadings of the parties. Nevertheless, since the appellants asserted that the alleged grant in Exhibit D1 was in respect of the land in dispute and there was an implied joinder of issues on the statement of defence, they needed to prove that the land the subject of Exhibit D1 was the same as the land in dispute.
The alleged grant in Exhibit D1 states that the grantor is the beneficial owner of the land the subject of the grant; that the grantor derived title from his Adimkpaya family who had been beneficial owner from time immemorial. There is nothing to show that the grant was done in a representative capacity as pleaded and testified to by the DW1. Furthermore, if the Adimkpaya family “had been beneficial owner from time immemorial”, it surely cannot be referring to the land that was said to have been purchased by Adimkpaya from the Alibo and Umudasiafor family in 1975. The year 1975 cannot be described as “time immemorial” which means time beyond memory.
Again, Exhibit D1 does not show that Engr. Ikemefune purchased the land in 1976 from Mr. Adimkpaya; it shows that the land was purchased in 1998 from the grantor, Mr. Michael Adimkpaya. It is out of sync with the case of the appellants.
Section 129 (4), (5) and (8) of the Evidence Act, 2011 canvassed by appellants’ counsel does not apply in this case. The words “ time immemorial” have only one proper legal meaning; they do not have a less proper meaning and do not apply to more objects than one to warrant the application of the those sub-sections to them.
The specific finding of the trial Court that the land in Exhibit D1 is not the same as the land in dispute has not been challenged by a specific ground of appeal. In the case of Mbang v. State (2013) 6 NWLR (Pt. 1352) 48, 67, the Supreme Court held that a complaint against a specific finding of a lower Court on a matter on appeal must be raised by a specific ground of appeal from which an issue is raised for determination. The effort of appellants’ counsel in nibbling away at that finding is therefore fruitless labour. I discountenance it.
Whichever way one looks at it, the finding of the trial Court under review cannot be faulted and therefore stands strong.
Exhibit D5 which was tendered through the 2nd appellant cannot validate a title that has not been proved and so it offers no help to the appellants.
In the light of the foregoing, I enter an affirmative answer to the lone issue for determination and resolve it against the appellants.
The appeal is devoid of merit and it fails. I therefore dismiss the same and affirm the judgment of the trial Court.
I assess the costs of the appeal at N300,000.00 in favour of the respondent to be paid by the appellants.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: My Lord, JOSEPH E. EKANEM, JCA. obliged me with the draft of the leading judgment in this appeal. I agree with the reasoning and conclusion that the appeal has no merit. I too dismiss the appeal.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have been afforded the privilege of reading a draft copy of the lead judgment just delivered by my learned brother, JOSEPH EYO EKANEM JCA and I am of the view that he has covered the field admirably and has aptly brought out the crux of this appeal and simplified it.
I also hold that the appeal is void of merits and join my Lord in dismissing the appeal.
Appearances:
Absent though served with hearing notice For Appellant(s)
M. O. Odite, Esq, For Respondent(s)