ASIEGBU & ORS v. EZEUDENSI (2020)

ASIEGBU & ORS v. EZEUDENSI

(2020)LCN/14081(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/E/76/2012

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

1. SUNDAY ASIEGBU 2. CHIKE ASIEGBU 3. ONYEKA ASIEGBU APPELANT(S)

And

NATHAN EZEUDENSI RESPONDENT(S)

RATIO

WHETHER OR NOT ISSUES FOR DETERMINATION IN AN APPEAL MUST ARISE FROM THE GROUNDS OF APPEAL

The position of the law is abundantly clear that issues for determination in an appeal must of necessity be derived from and are circumscribed by the grounds of appeal. Issues cannot be argued at large and must be tempered by the grounds of appeal containing the areas of Appellant’s vexation with the judgment of the trial Court. See ADELAJA VS FANOIKI & ORS (1990) LPELR-110 (SC), OKONKWO & ANOR VS OKOLO (1988) LPELR-2481(SC) and OBIAGELI VS FCE, ZARIA & ORS (2014) LPELR-24010(CA). PER OYEWOLE, J.C.A.

THE PRINCIPLE THAT PARTIES ARE BOUND BY THEIR PLEADINGS

It is trite that parties are bound by their pleadings. See AKPAPUNA & ORS. VS. NZEKA & ORS. (1983) LPELR-384(SC), METALIMPEX VS A.G LEVENTIS & CO (NIG) LTD (1976) LPELR-1870(SC). Although onus of proof to establish identity of the land in dispute is on the party seeking declaration of title to the said land, where parties have clearly indicated as in the present case that they were ad idem on the identity of the land in dispute that burden will not arise as that issue is considered settled. See ANAGBADO VS. FARUK (2018) LPELR-44909(SC). PER OYEWOLE, J.C.A.

METHODS OF ESTABLISHING TITLE IN AN ACTION FOR DECLARATION OF TITLE TO LAND

A claimant seeking declaration of title to a piece of land would of necessity anchor his claim on any of the five generally accepted methods of establishing title. These five methods are as follows:
(i) Proof by traditional evidence;
(ii) Proof by production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody;
(iii) Proof by acts of ownership, in and over the land in dispute, such as selling, leasing, making a grant, renting out all or any part of the land or farming on it or a portion thereof – extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such proprietary acts are the true owners of the land;
(iv) Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership, not only of the particular piece of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarly that the presumption under Section 46 of the Evidence Act, Cap. 112 of 1990 applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land; and
(v) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See: D.O. IDUNDUN & ORS VS. OKUMAGBA (1976) 9 AND 10 SC 227 at PAGES 246-250.
A claimant seeking declaration of title need not prove more than one of these five methods. This much was made abundantly clear by IGHU, JSC thus:
What is of paramount importance is that a party claiming declaration of title to a statutory or customary right of occupancy to land need not plead and prove any more than one of the above methods to succeed. It must however be stressed that if, as it is sometimes the case, the claimant pleads and/or relies on more than one method to prove his title, he merely does so ex abundanti cautela as proof of one single root of title is sufficient to sustain a plaintiff’s claim for declaration of title to land. See: Balogun & Ors v. Akanji & Another (1988) Vol. 19 1 NSCC 180; (1988) 1 NWLR (Pt. 70) 301. See ONWUGBUFOR & ORS V. OKOYE & ORS (1996) LPELR-2716(SC) at 25. PER OYEWOLE, J.C.A.

WHETHER OR NOT ACTS OF POSSESSION CAN DEFEAT AN ESTABLISHED LEGAL TITLE TO LAND

This position however flies in the face of the extant legal principle that acts of possession cannot defeat an established good title. Or better put, acts of possession without legal title no matter how long cannot defeat established legal title. See AGBOOLA VS. ABIMBOLA (1969) LPELR-25473(SC), LAAROKUN & ORS VS. KADIR (2019) LPELR-47715(CA). As well put by ADEREMI, JSC:
Unless the origin of their title is valid, that it was established by credible evidence, even if there was copious evidence of possession, the length of possession does not ripen invalid title to a valid ownership title. This is so because a claim for declaration of title is not founded on ownership by prescription under native law and custom and it will never be; see Mogaji & Ors v. Cadbury Nigeria Ltd &Ors (1985) 2 NWLR (Pt. 7) 393, (1985) 7 S.C. 59. See YUSUF VS. ADEGOKE & ANOR (2007) LPELR-3534(SC) at 27-28. PER OYEWOLE, J.C.A.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State, Aguata Judicial Division, holden at Ekwulobia, Anambra State, delivered on the 12th December, 2011 by OKUMA, J.

The Respondent had taken out a writ of summons against the father of the Appellants, his kinsman who unfortunately died and was substituted with his children, the Appellants, over a parcel of land called ‘Okpuno be Ezemeluo’. In the Amended Statement of Claim filed on the 26th June, 2007, the Respondent sought the following reliefs:
(a) Declaration that the plaintiff is the owner or the person entitled to a statutory right of occupancy of all that piece of land known as ‘Okpuno be Ezemeluo’ situate and being at Ihuede Umuchiana Village, Ekwulobia, bounded by the lands of Charles Ezeobele alias Okeke Nwaunuaku, Amandi Ezemobi, Eric Ezenwobodo, assess road to Umuchiana Village and Ezenwobodo family land across the assess road respectively, whose annual value is N500.00.
(b) A sum of N500,000.00 being special and general damages against the defendant for his trespass

into the land.
(c) An order compelling the defendant, his heirs, successors in title, servants, or agents and privies to immediately vacate the land which he entered without the consent or permission of the plaintiff.
(d) Perpetual injunction restraining the defendant, his heirs, successors in title, his agents or servants and privies from further trespassing into the land or continuing to do any further work in the land of the plaintiff.
(e) A declaration that the purported sale of the plaintiffs land now in dispute by Onuchukwu Ezenwobodo or the Ezenwobodo family to Emmanuel Asiegbu or the Asiegbu family is null and void and of no effect whatsoever.

The Appellants also took out their own writ against the Respondent wherein they sought the following reliefs:
a. N10, 025,000.00 being general and special damages for trespass.
b. An order of perpetual injunction against the defendant, his agents and hirelings in whatever manner described from committing further acts of trespass on the land of the plaintiffs.

The two suits were subsequently consolidated and heard together by the trial Court. At trial the two sides called

evidence and after taking the final addresses of their counsel, the trial Court delivered a considered judgment on the 16th November, 2011 wherein it found in favour of the Respondent and dismissed the action of the Appellants.

Dissatisfied, the Appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 21st December, 2011. The extant notice of appeal being the Further Amended Notice of Appeal filed on the 25th April, 2019 but deemed properly filed and served on the 2nd May, 2019.

At the hearing of the appeal, Mr. Mogboh, adopted the Appellants’ Amended brief filed on the 25th April, 2019 but deemed properly filed and served on the 2nd May, 2019 as well as the Appellants’ Reply brief filed on the 21st January, 2020 and deemed properly filed and served the same date as the arguments of the Appellants in furtherance of their appeal.

Mr. Egwuonwu similarly adopted the Respondent’s Amended brief filed on the 6th November, 2019 but deemed properly filed and served on the 21st January, 2020 as the arguments of the Respondent in contesting the appeal.

The Appellants distilled two issues for

determination which were adopted by the Respondent. The said issues are:
a. Whether the Respondent proved his title and ownership of the disputed land in Suit Number AG/127/2006.
b. Whether the trial Court was right in dismissing the Appellants’ Suit Number AG/136/2006 without pronouncing on the issues raised therein.

Arguing the first issue, Mr. Mogboh submitted that in a claim for declaration of title, the claimant had a duty to establish the identity of the disputed land which the Respondent herein failed to do. He referred to OGEDENGBE VS BALOGUN (2007) 9 NWLR (PT 1039) 380, ELIAS VS OMO-BARE (1982) 5 SC 13 and IGBOKWE & ORS VS IGBOKWE & ANOR (2016) 4 C.A.R. 148.

He submitted that the parties joined issues on the identity of the land in dispute making it mandatory for the Respondent to lead credible evidence including evidence of boundary neighbours and tendering of a composite plan. He referred to ADENLE VS OLUDE (2002) 18 NWLR (PT. 799) 413 at 433-434, ELIAS VS SULEIMON (1973) ALL NLR (PT 11) 282 and BANKOLE VS PELU (1991) 8 NWLR (PT 277) 523.

He argued that the evidence adduced by the Respondent was at variance with

his pleadings on the identity and dimensions of the land in dispute. He further argued that there was a disparity between exhibit J, the survey plan tendered by the Respondent and the identified features on the land in dispute thereby indicating a failure to establish the identity of the land in dispute. He referred to OGEDENGBE VS BALOGUN (supra).

It was further submitted that the Respondent as claimant had a duty to prove his title to the land in dispute based on the strength of his case and not the weakness of the defence and that the Respondent based his claim to title on traditional history but failed to prove his root of title. He referred to ADESANYA VS OTUEWU (1993) 1 NWLR (PT 279) 414 and IDUNDUN VS OKUMAGBA (1976) 9-10 SC 22.

Mr. Mogboh faulted the finding of the trial Court on the admission of the Respondent’s root of title by the Appellants and submitted to the extent that the Respondent was seeking a declaration of rights, the burden of proof remained on him despite the admission. He referred to EKE VS OKWARANYIA (2001) 12 NWLR (PT 726) 181, OLUBODUN VS LAWAL (2008) 17 NWLR (PT 1115) 1 at 37 and QUO VADIS HOTELS LTD VS COMMISSIONER OF LANDS

(1973) ALL NLR 568; (1973) 6 SC 50.

The learned counsel finally submitted on this issue that the failure to establish his root of title rendered inconsequential any acts of ownership and that accordingly the evaluation of the trial Court ascribing probative value to the acts of ownership of the Respondent should be set aside. He referredEFETIROROJE VS OKPALEFE II (1991) 5 NWLR (PT 193) 517 and ODUNZE VS NWOSU (2007) ALL FWLR (PT 376) 1295 at 1331-1332.

On the second issue, Mr. Mogboh submitted that the non-registration of the document evidencing purchase of the land in dispute by the Appellants’ father was not sufficient to render it inadmissible especially in view of the non-controverted evidence of possession adduced at trial. He referred to OGUNJUMO VS ADEMOLU (1995) 4 NWLR (PT 389) 254 at 265.

He further submitted that the said document was not submitted as evidence of title to the land but proof of their equitable interest in the said land and that the issue of non-registration as a registrable land instrument was raised suo motu by the trial Court without the input of parties. He referred to OKOYE VS DUMEZ NIG LTD (1985)

NWLR (PT 4) and OBAWOLE VS WILLIAMS (1996) 10 NWLR (PT 477) 146.

He submitted that the trial Court failed to pronounce on the acts of possession of the Appellants’ father and instead went to the traditional history of their root of title when in actual fact the Appellant was relying on the purchase from the Ezenwobodo family and only had to prove the root of title of the said family and their right to sell the land in dispute to the Appellants’ father. He referred toJIWUL VS DIMLONG (2003) 9 NWLR (PT 824) 154.

The learned counsel submitted that the Appellants led sufficient evidence in support of their averments and were entitled to judgment especially as the Respondent failed to lead credible evidence in support of their averments disproving the title of the Appellants.

He equally outlined the evidence adduced by the Appellants in support of the undisturbed possession and occupation of the land in dispute by the Ezenwobodo family who sold to the Appellants’ father thereby establishing the root of title of the Appellants to the land in dispute.

He concluded that by the state of evidence the trial Court ought not to have

given judgment in favour of the Respondent.

Contrariwise, Mr. Egwuonwu submitted that the contentions of the Appellants on the identity of the land in dispute is unrelated to any of the grounds of appeal and cannot be competently canvassed by the Appellants.

He submitted that no dispute on identity of the land arose from the pleadings as the parties were ad idem on all the essential features thereof including the name and that accordingly the trial Court was not under any duty to make a finding in respect thereof. He referred to ISAAC VS IMASUEN (2007) ALL FWLR (PT 376) 689 at 709.

The learned counsel further submitted that the Respondent pleaded and led sufficient evidence in addition to the admitted facts, to prove his root of title to the land in dispute and thereby justified his entitlement to the land in dispute.

He referred copiously to the evaluation and findings of the trial Court and submitted that they accorded with the state of pleadings and adduced evidence at trial and urged the Court to resolve the first issue in favour of the Respondent.

On the second issue, Mr. Egwuonwu submitted that even where a document was wrongly

admitted, a Court could still expunge it in the course of judgment as an inadmissible document remains inadmissible. He referred ADEYEMI VS THE STATE (2015) ALL FWLR (PT 790) 1201 at 1221, ALADE VS OLUKADE (1976) 2 SC 183 at 189 and RAIMI VS AKINTAYE (1986) 5 SC 87 at 105.

He further submitted that exhibit L the rejected document of title was pleaded by the Appellants as a document conferring rights or title to land and must be registered thereby leaving the trial Court with no option under the law even if the said document had been provisionally admitted. He insisted that counsel on both sides addressed the trial Court on the admissibility of the said exhibit L and referred to the Land Instruments (Preparation and Registration) Law Cap 75, Laws of Anambra State, 1991, ADAKOLE VS OGBUAGU (2015) ALL FWLR (PT 782) 1757 at 1786 and ODUMADE VS OGUNNAIKE (2011) ALL FWLR (PT 566) 529 at 545.

The learned counsel contended that the Appellants failed to establish the title of their father’s vendor although issues were joined on it and thereby validated the findings of the trial Court on the issue. He referred to AIYEOLA VS PEDRO (2014) ALL FWLR (PT 744)

17 at 38.

It was further submitted that unless the origin of title is valid, length of possession does not translate the invalid title of a trespasser to valid ownership of title. Learned counsel referred to AMANJIDEOGU VS ONONAKU (1988) 2 NWLR (PT 78) 614, NKADO VS OBIANO (1997) 50 LRCN 1084 at 1126 and PINA VS MAI-ANGWA (2019) ALL FWLR (PT 978) 226 at 241.

He concluded by submitting that the trial Court considered all the issues and rightly dismissed the case of the Appellants. He urged the Court to dismiss the appeal.

In his Reply brief, Mr. Mogboh argued that the issue of identity of the land in dispute was raised within the context of the burden on a claimant seeking for declaration of title to land and was therefore appropriately raised and argued and that accordingly the Respondent’s objection should be discountenanced.

The contentions of the Appellants as regards the identity of the land in dispute were objected to by the Respondent on the basis that the contentions were not founded on any of the grounds of appeal.
The position of the law is abundantly clear that issues for determination in an appeal must of necessity be

derived from and are circumscribed by the grounds of appeal. Issues cannot be argued at large and must be tempered by the grounds of appeal containing the areas of Appellant’s vexation with the judgment of the trial Court. See ADELAJA VS FANOIKI & ORS (1990) LPELR-110 (SC), OKONKWO & ANOR VS OKOLO (1988) LPELR-2481(SC) and OBIAGELI VS FCE, ZARIA & ORS (2014) LPELR-24010(CA).
Furthermore, the complaint captured by grounds of appeal are further amplified by the particulars thereof so that the opposing party is left in no doubt as to the grouse of the appellant with the judgment appealed against and the case he is up against on appeal. See JULIUS BERGER & ANOR VS. TOKI RAINBOW COMMUNITY BANK LTD (2019) LPELR-46408 (SC).
A careful perusal of the grounds of appeal and their particulars as contained in the Further Amended Notice of Appeal herein would have disclosed to the Respondent that in Ground 3 thereof, the Appellants had a grouse with the judgment of the trial Court on the identity of the land in dispute.
The objection of the Respondent shall therefore be discountenanced.

That said, it seems to me however, that the

complaint of the Appellants on the identity of the land in dispute has no foundation in the pleadings.

In paragraph 3 of the Amended Statement of Claim, the Respondent pleaded as follows:
3. The plaintiff is the owner and person entitled to the right of occupancy of the piece or parcel of land now in dispute in this suit known as “Okpuno be Ezemeluo” situate, lying and being at Ihuebe in Umuchiana Village, Ekwulobia, by inheritance from his ancestors namely Ezeobali or Ezeobiora, Ezeneke, Ezenyelofor, Ezeudensi and Anikam Michael.

The response of the Appellants to this averment as contained in paragraph 2 of their Joint Statement of Defence goes thus:
2. Save that the defendants admit that the land in dispute is known as and called “Okpuno be Ezemeluo”, the defendants deny the rest of the averment in paragraph 3 of the statement of claim and shall demand strict proof at the trial from the plaintiff.

It is trite that parties are bound by their pleadings. See AKPAPUNA & ORS. VS. NZEKA & ORS. (1983) LPELR-384(SC), METALIMPEX VS A.G LEVENTIS & CO (NIG) LTD (1976) LPELR-1870(SC).

Although onus of proof to establish identity of the land in dispute is on the party seeking declaration of title to the said land, where parties have clearly indicated as in the present case that they were ad idem on the identity of the land in dispute that burden will not arise as that issue is considered settled. See ANAGBADO VS. FARUK (2018) LPELR-44909(SC).
According to KARIBI-WHYTE, JSC:
It is therefore strange and absurd for learned Counsel to the 1st Defendant to contend that the identity of the land in dispute is uncertain. It has always been accepted in our Courts in land cases that where the area of land in dispute is well known to the parties, the question of proof not being really in dispute does not arise. In such a situation, it cannot be contended that the area claimed, or can the land in dispute be described as uncertain – See Etiko v. Aroyewun (1959) 4 FSC 129; (1959) SCN LR 308; Osho v. Ape (1998) 8 NWLR (Pt. 562) 492. In the circumstances of this case, the identity of the land in dispute cannot be described as uncertain since both parties know and have accepted it as the land in dispute. See AKINTERINWA & ANOR VS. OLADUNJOYE (2000)

LPELR-358(SC) at 34.

inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land; and
(v) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See: D.O. IDUNDUN & ORS VS. OKUMAGBA (1976) 9 AND 10 SC 227 at PAGES 246-250.
A claimant seeking declaration of title need not prove more than one of these five methods. This much was made abundantly clear by IGHU, JSC thus:
What is of paramount importance is that a party claiming declaration of title to a statutory or customary right of occupancy to land need not plead and prove any more than one of the above methods to succeed. It must however be stressed that if, as it is sometimes the case, the claimant pleads and/or relies on more than one method to prove his title, he merely does so ex abundanti cautela as proof of one single root of title is sufficient to sustain a plaintiff’s claim for declaration of title to land. See: Balogun & Ors v. Akanji & Another (1988) Vol. 19 1 NSCC 180; (1988) 1 NWLR (Pt. 70) 301.

See ONWUGBUFOR & ORS V. OKOYE & ORS (1996) LPELR-2716(SC) at 25.

An examination of the pleadings of the rival claimants shows that while the Respondent anchored his claim on traditional evidence, the appellants’ case was predicated on the purchase from the Ezenwobodo family in respect of which they pleaded “a land agreement” dated 1st January, 1968.

The Respondents called evidence in support of his averments in addition to the various admissions by the Appellants while the Appellants not only failed to lead evidence on the title of the Ezenwobodo family but its document of title provisionally admitted as exhibit L, was later expunged for failing the test of admissibility.

After a detailed evaluation of the pleadings of both parties and the evidence adduced in support thereof, the learned trial Judge made the following findings on page 407 of the record of appeal:
The evidence of the plaintiff stands unshaken as it is and placed on the imaginary scale of justice, weighed on preponderance of evidence with the case of the defendants and measured on proof based on balance of probabilities not proof beyond reasonable,

no doubt tills in favour of the plaintiff.
The defendant’s case from pleadings and evidence suffered from inconsistent, sequence and contradiction.
Taking the pleadings and evidence as evaluated above this Court is bound in the line of evidence before it to follow his belief that the principal witness of the defendants on whom they anchored their case in proof of the said purchase of the landing dispute failed to substantiate same.

Before us the Appellants tried to impugn the rejection of Exhibit L and even argued that the said document was not tendered as document of title. The said document was pleaded in paragraph 3 of their Joint Statement of Defence (which corresponds essentially with paragraph 4 of the Statement of Claim in Suit No. AG/136/06 where they are Plaintiffs)thus:
3. The defendants state in answer to paragraph 3 of the statement of claim, that the land in dispute belongs to their late father Mr. Emmanuel Asiegbu who was earlier sued by the plaintiff but who died after pleadings were ordered in this case. The said father of the defendants bought the land in dispute from the rightful heirs to Ekpe Ezemeluo, the

Ezenwobodo family in 1968. Ezenwobodo family is the overall head of Ezeneke family to which both the plaintiff and the defendants belong. One Onuchukwu Ezenwobodo who is alive today and Ezenwafo Ezenwobodo “now late” represented Ezenwobodo family in the sale transaction that transferred the land in dispute to the father of the defendants. Ezenwobodo family acknowledged the land transaction in writing. The plaintiff hereby pleads the said document titled “A LAND AGREEMENT” dated 1st January 1968 and shall rely on it at the trial of this case.

The admissibility of a registerable land instrument depends on the purpose for which it was being sought to be tendered. Where the purpose was to proof or establish title to land, it would be inadmissible pursuant to the Land Instrument Registration Law. See ABDULLAHI & ORS V. ADETUTU (2019) LPELR-47384(SC) at pages 21-22 where NWEZE, JSC stated the position of the law thus:
Put differently, a document, registrable under the Land Instruments Registration Law, may be admitted in evidence without registration, if it is tendered, not as an instrument affecting land but only to establish

evidence of a transaction between the parties, Obienu v. Okeke [2006] 16 NWLR (pt. 1005) 225; Monkom v. Odili [2010] 2 NWLR (pt. 1179) 419; Agwunedu v. Onwumere [1994] 1 NWLR (pt.321) 375; Abu v. Kuyabana [2002] 4 NWLR (pt. 758) 599. In effect, when a Court is determining whether or not to admit or reject an unregistered registrable instrument, it has to consider the purpose and the use to which it is being put, Ole v. Ekede [1991] 4 NWLR (pt. 187) 569 . In the vocabulary of pleadings, the pleader has a duty to show that the document was pleaded as an acknowledgement of payment and not as an instrument of title, Ogunbambi v. Abowab 13 WACA 222; Agwunedu v. Onwumere [1994] 1 NWLR (pt 321] 375; Fakoya v. St. Paul’s Church Shagamu (1966) I All NLR 74; Oni v. Arimoro (1973) NMLR 237; Akingbade v. Elemosho (1964) I All NLR 154.
The Appellants herein tendered exhibit L as their title document in respect of the land in dispute and in resolving the objection to the admissibility thereof, the learned trial Judge rightfully rejected the said document.

The Appellants also contended that notwithstanding their failure to establish title, their incidents of

possession ought to have been considered in their favour. This position however flies in the face of the extant legal principle that acts of possession cannot defeat an established good title. Or better put, acts of possession without legal title no matter how long cannot defeat established legal title. See AGBOOLA VS. ABIMBOLA (1969) LPELR-25473(SC), LAAROKUN & ORS VS. KADIR (2019) LPELR-47715(CA). As well put by ADEREMI, JSC:
Unless the origin of their title is valid, that it was established by credible evidence, even if there was copious evidence of possession, the length of possession does not ripen invalid title to a valid ownership title. This is so because a claim for declaration of title is not founded on ownership by prescription under native law and custom and it will never be; see Mogaji & Ors v. Cadbury Nigeria Ltd &Ors (1985) 2 NWLR (Pt. 7) 393, (1985) 7 S.C. 59. See YUSUF VS. ADEGOKE & ANOR (2007) LPELR-3534(SC) at 27-28.

The Appellants in seeking declaration of title failed to prove their title as required by law and further failed to adduce evidence of the root of title of their supposed vendors, the Ezenwobodo

family.

Civil cases are decided on balance of probabilities or preponderance of evidence which tilts in favour of the party with the more credible evidence. See ONWUAMA VS. EZEOKOLI (2002) LPELR-2712(SC) and OWOADE & ANOR VS. OMITOLA & ORS (1988) LPELR-2850(SC).

In view of the totality of the pleadings of the parties and the evidence adduced in support thereof, I see no reason to interfere with the findings and conclusions of the trial Court.
I therefore resolve the two issues in favour of the Respondent and against the Appellants.
I find no merit in this appeal and it is accordingly dismissed.
The judgment of the trial Court is hereby affirmed.
Cost of N100,000.00 is awarded in favour of the Respondent and against the Appellants.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH OLUBUNMI OYEWOLE, JCA. I agree that the appeal has no merit. I too dismiss the appeal.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA just delivered. I

agree with the reasoning and conclusion contained therein.

From the evidence adduced at the trial, it is crystal clear that the Appellants failed to establish their root of title as the purported land agreement executed between the Appellants and one Ezenwobodo family on the 1st of January, 1968 (Exhibit L) was not registered as required by law for the trial Court to admit and attach probative value as proof of title to land. The position of the law as regards the admissibility of an unregistered registrable instrument is that once a document qualifies as an instrument it must be registered. Failure to register it makes it inadmissible in evidence to prove transfer of land. See JIBIYAL V. GOWON & ANOR (2017) LPELR- 43304 (CA).

Since the evidence upon which the Appellants’ root of title has collapsed, the issue of long possession therefore becomes immaterial. Their long possession of the disputed land is impotent to vest them with title over it because when the root fails to stand, the stem and the branches will fall with the root. In other words, where the radical title pleaded is not proved, the Court is not permitted to support a

non-existed root with act of possessions. SeeOSENI & ORS V. OYETORO & ORS (2018) LPELR-44326 (CA). As required by law, the Appellants in a matter such as the one under consideration is required to lead cogent and credible evidence in support of their pleadings and they are equally required to succeed on the strength of their case and not on the weakness of the defence put forward by the Respondent. Their failure to surmount this hurdle would invariably have their claims dismissed for want of proof as rightly done by the learned trial judge.

For these reasons and of course for the detailed ones adumbrated in the lead judgment, I too, therefore, find no merit in this appeal and I accordingly dismiss it. I abide myself by the consequential orders made by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA in the lead judgment.

Appearances:

O. Mogboh with him, Mr. C. Edeh For Appellant(s)

Mr. N.I.N.A. Egwuonwu For Respondent(s)