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ASIKPO v. OKON (2020)

ASIKPO v. OKON

(2020)LCN/14352(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, June 24, 2020

CA/C/191/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

EMEM DENIS ASIKPO APPELANT(S)

And

CLEMENT EDET OKON RESPONDENT(S)

RATIO

MEANING OF A JUDGMENT BEING AGAINST THE WEIGHT OF EVIDENCE

It is trite that where an appellant complains that the judgment is against the weight of evidence, all he is saying or trying to say is that there is no evidence which if admitted would support the findings of the trial judge or that where the evidence adduced by the appellant and that of the respondent are placed side by side upon the imaginary scale of justice, the appellant’s evidence will preponderate. See Ogboda vs. Adelugba (1971) 1 ALL NLR 68 @ 71, Mogaji vs. Odofin & Ors (1978) 4SC 91 @ 93, Atuyeye vs. Ashamu (1987) LPELR – 638(SC), Ode vs. Folarori (supra) 299. PER BARKA, J.C.A.

WHETHER OR NOT THE ONUS LIES ON A CLAIMANT TO ESTABLISH HIS CLAIM BY PREPONDERANCE OF EVIDENCE IN ESTABLISHING A CLAIM ON A DISPUTED LAND

Let me restate the position of the law which has always been that in establishing a claim on a disputed land, the onus lies on the claimant to establish his claim by preponderance of evidence. In doing so, he needs produce sufficient and satisfactory evidence acceptable and to the satisfaction of the Court of trial, showing that he has a better title. See Mini Lodge Ltd vs. Ngei (2009) 18 NWLR (pt. 1173) 254, Abubakar vs. Abubakar (2015) ALL FWLR (pt. 808) 693 @ 719 – 720. Momoh vs. Umoru (2011) ALL FWLR (pt. 588) 797.
It must be stated also that of fundamental importance is the legal position, which fixes the evaluation of evidence and ascription of probative value to the evidence adduced on the trial Court, owing to its singular advantage of having seen the witnesses, listened to them and watched their demeanour and therefore in the best position to assess their credibility. See Woluchem vs. Gudi (1981) 5 SC 291, Obadina vs. Fasoyinro (2019) ALL FWLR (pt. 991) 1 @ 26.
From the foregoing, could we say that the lower Court’s decision was speculative, or based on matters which the lower Court ought not to have considered or shut its eyes to the obvious, thus in direct conflict with the decision in Osuji vs. Ekeocha (2009) ALL FWLR (pt. 490) 614? PER BARKA, J.C.A.

THE PROCESS THE TRIAL COURT SHOULD FOLLOW IN EVALUATING EVIDENCE PLACED BEFORE IT

The Supreme Court in Anekwe vs. Nweke (2014) ALL FWLR (pt. 739) 1154 elucidated the process a trial Court should follow in reaching a decision in civil cases thus:
“In evaluating and piece of evidence placed before it by the parties, a court of law is bound to consider the totality of the evidence led by each of the parties. It shall then place it on an imaginary scale of justice to see which of the two side weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of same so as to give value or quality to it. Evaluation of evidence by a trial court should necessarily involve a seasoned preference of one version to the other. The very direction in which the pendulum tilts is the course of justice. Therefore, the onus is on the judge, as an adjudicator and umpire to act objectively in the process of arriving at a just evaluation of evidence for purpose of achieving the ultimate end result. The determinant factor as to which evidence a Court accepts or rejects is not dependent on the quantum or quantity but probative value of the evidence by the witness. Lagga v. Sarhuna (2008) 16 NWLR (Pt 11140) 427; Bassil v. Fajebe (2001) 11 NWLR (725) 592; Sha (Jnr.) v. Kwan (2000) FWLR (Pt. 11) 1798, (2000) 12 NWLR (Pt. 670) 685.” Boukoru vs. Erefiyai-Eweke (2017) ALL FWLR (pt. 894) 1520 per Adah JCA. PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): On the 30th of June, 2014, one Mr. Clement Edet Okon took out a writ of summons supported with a statement of claim against Emem Dennis Asikpo and Eda Christopher Uduk, wherein the plaintiff (Clement Edet Okon) claimed against the defendants jointly or severally for the following reliefs:
(a) A declaration that by inheritance the claimant is the person entitled to a deemed statutory or customary right of occupancy to a piece of land called EKPENEMEME situate at Ayayatie area of Anua village in Uyo Local Government Area of Akwa Ibom State.
(b) An order of injunction restraining the defendants jointly or severally, their agents, servants, workmen, employees and privies from further entering or committing further acts of trespass on the claimant’s piece of land aforesaid.
(c) N2,000,000.00 (Two Million Naira) being general damages for trespass committed by the defendants on the claimant’s aforesaid piece of land.
(d) Cost of action in the sum of N100,000.00 (One Hundred Thousand Naira) only.

The 1st defendant on receipt of the claimants claim, filed in a statement

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of defence thereto on the 24/10/14 with leave of Court, denying all the allegations of facts contained in the statement of claim, and further stated that the suit is baseless and should be dismissed with costs.

The 2nd defendant on the other hand, challenged the suit instituted against him by way of a preliminary objection, contending that the claimant’s suit as presently constituted, did not disclose any reasonable cause of action against him. Apparently, the 2nd defendant’s preliminary objection proved successful resulting in his name being struck out, on the sole ground that no reasonable cause of action was disclosed against him. The claimant thereafter filed a reply to the lone defendant’s statement of defence on the 6th of November, 2014.

At the trial proper, claimant testified and called three witnesses namely; Christopher Bassey Archibong, Anietie Edem Eyo and Anthony Ime Okure. The defendant on the other hand testified, and called one witness.

The trial Court thereafter proceeded to examine the evidence placed before it, together with the written addresses of learned counsel on both sides, and on the 13th of January,

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2017, decided in favour of the claimant in the following terms:
1) It is hereby declared that the (sic) claimant is by inheritance entitled to a deemed right of occupancy over a piece of land called Ekpenememe situate at Ayayatie Area of Anua village, Akwa Ibom State.
2) An order of injunction be and is hereby issued against the Defendant restraining him, his agent, servants, workmen employees and privies from further entering or committing further acts of trespass on the claimant’s land.
3) The sum of N500,000 being general damages for the trespass against the defendant in favour of the claimant.
4) Cost of this action is assessed at N50,000.00 against the Defendant in favour of the Claimant.

The defendant displeased with the judgment of the lower Court, filed a Notice of Appeal on the 6th of March, 2017 predicated on 11 grounds of appeal.

From the 11 grounds raised, appellant distilled three issues, as follows:
1. Whether the judgment is against the weight of evidence, formulated from Grounds 1 and 3?
2. Whether the Respondent identified the land in dispute with certainty as required by law to warrant the grant

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of title therefore by the trial Court formulated from Grounds 4 and 9?
3. Whether the refusal of the trial Court to amend the Statement of Defence of the Appellant did not amount to a breach of right to fair hearing formulated from Grounds 2 alone?

It should be noted that appellant is heard as saying that he is at that stage abandoning Grounds 5, 6, 7, 8, 9, 10 and 11 of the Grounds of appeal, and intends to argue the three grounds of appeal as indicated.

The respondent on his part identified three issues capable of settling the appeal as follows:
(a) Whether or not the traditional evidence of the respondent was credible and convincing enough to grant him title to the land in dispute.
(b) Whether or not the identity of the land in dispute was clearly made out by the respondent.
(c) Whether or not the trial Court was not in error to have refused application for amendment of statement of defence of the appellant.

Having taken a holistic consideration of the two set of issues identified by the parties, it is my view that the two set of issues are practically the same, and thereby fail to see any difference, between them. In the

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resolution of the appeal therefore, I intend to adopt those issues crafted by the appellant resolving them seriatim.

Issue One.
Whether the judgment is against the weight of evidence.
This issue argued from pages 4-9 of the appellant’s brief settled by Imo Udofia, maintains that the judgment of the lower Court cannot be supported going by the weight of the evidence adduced by the successful party, as the inference drawn or conclusions reached therein cannot be justified. Further argued that when the evidence adduced by the defendant is weighed against that adduced by the plaintiff, the judgment given would be against the totality of the evidence adduced. The case of Ode vs. Folarori (2001) 9 NWLR (Pt. 718) 299 was referred to.

Learned counsel continued to argue that the burden of proof of title to land lies on the plaintiff and never shifts. Iroagbara vs. Ufomadu (2009) All FWLR (pt. 481) 843 at 860, and in proving title to land, the plaintiff must plead and lead evidence to establish his title based on the settled five ways of establishing title namely; Traditional title, conquest, grant, sale and purchase and possession and acts of

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ownership. Olaniyan vs. Falaki (2014) All FWLR (pt. 717) 703 at 723.

He submitted that the respondent having relied on traditional history to found his claim, must go further to plead and prove the founder of the land, how it was founded and the devolution of the land by unbroken chain of succession down to the claimant. The case of Iroagbara vs. Ufomadu (2009) All FWLR (pt. 481) 843 at 860 and Fayemi vs. Awe (2010) All FWLR (pt. 528) 883, were cited and relied upon.

He goes on to submit that the trial Court erred in awarding title to the Respondent when the respondent failed to plead and to offer credible evidence on the person who founded the land and the devolution of the land by unbroken chain of succession down to him. Learned counsel maintained that the name of the ancestor who founded the land must be mentioned, and the Respondent having mentioned the late Chief Udoeyop Udo Okure as one of the persons who deforested the land and given a share thereof, is not enough to establish that he indeed was the founder of the land.

Relying on the case of Lebile vs. Registered Trustees of the Cherubim and Seraphim Church of Zion of Nigeria Abonla & 3 Ors. ​

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(2003) 2 NWLR (pt. 804) 399 at 419, counsel posits that the term “time immemorial” connotes evidence of facts beyond human memory, further contending that the Respondent having started to mention the full title, name and date of death of the said Chief Udoeyop Udo Okure, means that he has taken him out of the ambits of traditional history carried by the term, time immemorial.

Further relying on the case of Lebile vs. Registered Trustees of the Cherubim and Seraphim Church of Zion of Nigeria (supra) at page 418 – 419, counsel argued that the traditional history adduced by the respondents has suffered broken chains syndrome and therefore lacks reliability for the purpose of supporting a claim for title.

He argued that where the claim for title fails, then the other claims of injunction, damages for trespass and cost of the action must equally fail. He urged the Court based on the foregoing to hold that Respondent failed to prove title to the land in dispute, and thereby set aside the decision of the lower Court.

On the issue, whether the respondent identified the land in dispute with certainty as required by law to warrant

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the grant of title thereto to the claimant by the trial Court, It was submitted that Respondent failed to identify the land in dispute as required by law and thereby not entitled to the award of title, order of injunction, damages and cost of the action.

Learned counsel argued that when Courts make pronouncements on disputed lands, the land must be ascertainable with definitive certainty. Ogundalu vs. Macjob (2015) all FWLR (pt. 784) 103 at 116, and submits that the respondent failed to produce a survey plan despite the fact that the defendant raised the issue of the identity of the land in the statement of defense. Ogbuefi vs. Asee (2011) All FWLR (pt. 6003) 1873. He goes further to argue that from the evidence adduced and the identity of the land in the appellant’s reply, which resulted in giving contradictory evidence on the identity of the land, this Court should hold that the respondent failed to identify the land in dispute with certainty as required by law.

Submitting on the third issue; whether the refusal of the trial Court to amend the statement of defence by the appellant did not amount to a breach of appellant’s

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constitutional right to fair hearing, it was the submission of Learned counsel that the refusal by the lower Court to allow appellant amend his statement of defence amounted to a breach of the appellant’s right to fair hearing, provided for by Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. He submitted that by Order 23 Rule 1 of the Akwa Ibom State High Court Civil Procedure Rules, 2009, a party is allowed to amend his pleading not more than twice during trials, and even where the respondent closes his case, appellant‘s application ought not to be foreclosed, as he was yet to adduce evidence, and the respondent had the right to amend his pleadings and to reopen his case should the need be, owing that the amendment sought was meant to bring before the Court all the relevant facts so as to enable the Court do justice to the case before it. Further argued that amendment can be made at any stage before judgment, and thereby urged the Court to hold that the refusal by the lower Court to allow appellant amend his pleadings, meant that appellant was denied his right to fair hearing in the circumstance. In conclusion,

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appellant urged the Court to resolve all the three issues in its favour, and to allow the appeal, set aside the decision of the lower Court.

The respondent responded to the appellant’s three issues seriatim in the brief settled by Samuel Awakessien. On issue one, which learned counsel framed as whether or not the traditional evidence of the respondent was credible and convincing enough to grant him title to the land in dispute, It was argued that the pleadings filed by the claimant and evidence adduced weighed in his favour and thereby judgment was entered in his favour.

He concedes to the fact that there are five ways of establishing title to land and cited the case of Edosa vs. Ogiemwanre (2019) 289 LRCN 122 142. He submitted also that the onus of proof usually lies on the plaintiff who must rely on the strength of his case and not on the weakness of the defence case as held in Soronnadi & Anor vs. Durugo & Anor. (2019) 294 LRCN 213 at 242 – 243. Learned counsel also conceded to the argument that in proving traditional history defined in the case of Edosa vs. Ogiemwanre (supra) pages 144 – 145, the plaintiff must plead the

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names of the founder and those after him, and upon whom the land devolved to the last successors and also lead evidence in support without leaving gaps. Pada vs. Galadima Anor. (2017) 273 LRCN 21.

He referred to the appraisal of evidence by the lower Court from pages 224-227, to the conclusive effect that the lower Court had no difficulty in settling between the respondent and the appellant who presented a convincing and compelling traditional history and evidence with regards to the land in dispute. Counsel maintained that the respondent’s grandfather one Chief Udoeyop Udo Okure of Ikot Eda family was one of the ancestors of the village who deforested various farmlands and was given a share thereof, and upon the death of Chief Udo Okure in 1922, his son succeeded him to his death in 1939. Further that his late father and later himself, continued to inherit the land up to the year 2013, when appellant interfered with such peaceful enjoyment of the land. He argued that the piece of land now in dispute was in respect of their nuclear family and any member of the family had the right to protect, preserve or defend any trespass on the family land. He

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urged the Court to resolve the issue against the appellant and to dismiss the appeal on this issue.

Submitting on whether or not the land in dispute was identified with clarity to enable the Court grant the reliefs sought, Learned counsel drew the Courts attention to pages 223-224 of the record, wherein the lower Court dealt with the issue of the identification of the land in dispute and further made reference to the established legal principles in the cases of Onemu & Ors vs. C.A.N.R Asaba & Ors. (2019) 295 LRCN 150 at 175, submitting that the lower Court kept abreast with the legal principles with respect to the issue of identification of the land in dispute in arriving at the conclusion that the parties were at id. Idem on the identity of the land, and therefore urged the Court to uphold the finding of the lower Court on the issue.

On the final issue whether or not the trial Court was in error when it refused the appellants application to amend the defendant’s pleadings before the lower Court, counsel argued that the ruling in contention is an interlocutory ruling and by the provisions of Section 24 of the Court of Appeal Act, 2004,

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appellant had 14 days from the date the ruling was delivered within which to appeal the decision. He urged the Court not to entertain the issue at this stage, as the complaint on the issue is beyond the 14 days allowed by law. Further on the issue, counsel maintained that the reasons adduced by the trial Court in refusing the application cannot be faulted.

On the whole, learned counsel urged the Court to dismiss the appeal and to amend costs to the respondent which he suggested to be N300,000.00.

Resolution.
I have therefore accorded due consideration to the appellant’s grounds of appeal and the submissions on the issues raised.

Let me commence the resolution of the appeal by considering the first issue. It is trite that where an appellant complains that the judgment is against the weight of evidence, all he is saying or trying to say is that there is no evidence which if admitted would support the findings of the trial judge or that where the evidence adduced by the appellant and that of the respondent are placed side by side upon the imaginary scale of justice, the appellant’s evidence will preponderate. See Ogboda vs. Adelugba

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(1971) 1 ALL NLR 68 @ 71, Mogaji vs. Odofin & Ors (1978) 4SC 91 @ 93, Atuyeye vs. Ashamu (1987) LPELR – 638(SC), Ode vs. Folarori (supra) 299.

In the case at hand, parties are on common ground to the effect that the claimant founded his claim to the title of the disputed land on traditional history, being one of the five ways recognised as establishing title to land. Olaniyan vs. Fatoki (2014) ALL FWLR (pt. 717) 703, Edosa vs. Ogiemwanre (2019) 289 LRCN 122 @ 142, Aiyeola vs. Pedro (2014) 13NWLR (pt. 1424) 409, Ajibulu vs. Ajayi (2004) 11NWLR (pt. 8850 458, Ogunleye vs. Oni (1990) 2NWLR (pt. 135) 745. Parties are also agreed that where a party relies on traditional history, as is the case before the Court, the plaintiff is duty bound to plead and to give cogent and acceptable evidence with regards to the founder of the land, how it was founded, the devolution of the land from the founder, down the succession line unbroken to the plaintiff. Pada vs. Galadima & Anor (2017) 273 LRCN 1 @ 21, Iroagbara vs. Ufomadu (2009) ALL FWLR (pt. 481) 843, Fayemi vs. Awe (2010) ALL FWLR (pt. 528) 883.

Of equal importance is the established legal

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principle requiring the plaintiff to succeed on the strength of the case made out by him, and not on the weakness of the defense case, if any, unless and excepting where the defense case supports the plaintiffs case. See Onwugbufor vs. Okoye (1996) 1 NWLR (pt. 424) 252, Adesanya vs. Aderonmu (2000) 9 NWLR (pt. 672) 370.

It is vivid from the records that both parties claim ownership of the disputed land based on traditional history. The trial Court took into consideration the pieces of evidence adduced, evaluated the same in arriving at the conclusion that the claimant’s case preponderated. It is evident that the trial Court was guided by the decision of the Apex Court in Agala vs. Benjamin Okusin (2010) LPELR – 221(SC), which heavily relied on Odofin vs. Mogaji (1978) NSCC 275 to the effect that:
“In short, before a Judge before whom evidence is adduced by the parties before him in a civil cases comes to a decision as to which evidence he believes or accepts and to which evidence he rejects, he should first of all put the totality of the testimony adduced by the plaintiff on one side of the scale and that of the defendant on the

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other side weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities.” Per Mukhtar, JSC
From pages 225 of the record, the trial Court, mindful of the decision in Mogaji vs. Cadbury Nigeria Ltd (1985) 5 NWLR (pt. 7) 393, came to the conclusion that the line of succession given by the claimant had no gaps or mysterious linkages, and therefore acceptable to the Court. With respect to the evidence adduced by the claimant, the Court held that:
“I therefore accept the evidence of the claimant and hold that he had satisfied the onus of proof both by his pleading and evidence and therefore established his traditional history by credible evidence”
On the other hand the lower Court with regard to the evidence proffered by the appellant as defendant before the lower Court, held that:
“It is noted that the defendant did not call any of the boundary men to testify and either (Sic) did he call any member of

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his family to confirm that the land belonged to him. He did not also call any of those who allegedly had transaction on the land. He did not also deny that the boundary men whom he named come from claimant’s family and are from Anua Offot”.
In arriving at the above conclusion, the learned trial judge appraised the pieces of evidence rendered by the claimant in support of his claim, and also considered the evidence adduced by the appellant and his witness. With respect to the appellant’s witness Dw2, the Court rejected his evidence stating that:
“I therefore do not find the evidence of the Dw2 to be credible”.
Let me restate the position of the law which has always been that in establishing a claim on a disputed land, the onus lies on the claimant to establish his claim by preponderance of evidence. In doing so, he needs produce sufficient and satisfactory evidence acceptable and to the satisfaction of the Court of trial, showing that he has a better title. See Mini Lodge Ltd vs. Ngei (2009) 18 NWLR (pt. 1173) 254, Abubakar vs. Abubakar (2015) ALL FWLR (pt. 808) 693 @ 719 – 720. Momoh vs. Umoru (2011) ALL FWLR

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(pt. 588) 797.
It must be stated also that of fundamental importance is the legal position, which fixes the evaluation of evidence and ascription of probative value to the evidence adduced on the trial Court, owing to its singular advantage of having seen the witnesses, listened to them and watched their demeanour and therefore in the best position to assess their credibility. See Woluchem vs. Gudi (1981) 5 SC 291, Obadina vs. Fasoyinro (2019) ALL FWLR (pt. 991) 1 @ 26.
From the foregoing, could we say that the lower Court’s decision was speculative, or based on matters which the lower Court ought not to have considered or shut its eyes to the obvious, thus in direct conflict with the decision in Osuji vs. Ekeocha (2009) ALL FWLR (pt. 490) 614? I do not think so. The lower Court from the record examined the pleadings and the radical evidence proffered by the claimant, evaluated the same and found it credible as against the evidence of the appellant. Claimant stated the name of the founder of the land and the successive owners down to the claimant. The Supreme Court in Anekwe vs. Nweke (2014) ALL FWLR (pt. 739) 1154 elucidated the process a

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trial Court should follow in reaching a decision in civil cases thus:
“In evaluating and piece of evidence placed before it by the parties, a court of law is bound to consider the totality of the evidence led by each of the parties. It shall then place it on an imaginary scale of justice to see which of the two side weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of same so as to give value or quality to it. Evaluation of evidence by a trial court should necessarily involve a seasoned preference of one version to the other. The very direction in which the pendulum tilts is the course of justice. Therefore, the onus is on the judge, as an adjudicator and umpire to act objectively in the process of arriving at a just evaluation of evidence for purpose of achieving the ultimate end result. The determinant factor as to which evidence a Court accepts or rejects is not dependent on the quantum or quantity but probative value of the evidence by the witness. Lagga v. Sarhuna (2008) 16 NWLR (Pt 11140) 427; Bassil v. Fajebe (2001) 11 NWLR (725) 592; Sha (Jnr.) v. Kwan (2000) FWLR (Pt. 11) 1798, (2000) 12 NWLR (Pt.

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670) 685.” Boukoru vs. Erefiyai-Eweke (2017) ALL FWLR (pt. 894) 1520 per Adah JCA.
I have examined the evidence before the trial Court, and i am of the humble view that the trial Court creditably discharged his responsibility of evaluating the evidence before it, and reject the argument of the appellant that the findings were perverse. In the circumstance, this Court being an appellate Court cannot interfere as there was no justification for so doing.

Furthermore the argument that claimant who claimed to be acting in a representative capacity and later somersaulted to urging that the land be granted to him looks porous in view of the evidence before the Court that respondent represented his nuclear family. The case of Odimegwa vs. Ibezim (2019) 9 NWLR (pt. 1677) 244 @ 260 is conclusive on the issue having held that:
“with respect to family property as in the instant case, the law is that a member of a family has the capacity to sue to protect family property. Any member of a family whose interest is threatened by wrongful interference with the family property can sue to protect his interest. He can commence the action with or without the

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consent of the other members of the family. If he does not act, he may find himself being held to be standing by when his rights are being taken away. See Dadi vs. Garba (1995) 8 NWLR (pt 411) 12, Babayeju vs. Chief Ashamu (1998) 9 NWLR (pt. 5670 546”.
Also in Mozie vs. Mbamalu (2006) 15 NWLR (pt. 1003) 466 @ 493, per Tobi JSC:
“It is good law that members of a family can sue in respect of family property”.
The lower Court was on strong footing holding that respondent rightly sued in respect of the family land. This issue is similarly resolved in favour of the respondent.

The other issue agitated upon by the appellant touches on the identity of the disputed land. It has been held numerously that the issue of identity of land in an action for declaration of land is fundamental, and the onus of establishing with certainty the identity/boundaries of the disputed land lies on the claimant. The exactness of the identity of the land must be indisputable as not to raise a single iota of doubt in the mind of the Court. See Onemu vs. Comm. Of Agriculture (2019) ALL FWLR (pt. 1009) 1 @ 19, Okunade vs. Olawale (2014) 10 NWLR (pt.

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1415) 207, Aremu vs. Adetoro (2007) 16 NWLR (pt. 1060) 244, Offodile vs. Offodile (2019) 16 NWLR (pt. 1698) 189 @ 202.
Where the claimant fails to identify a clear, definite and discernible area in conflict, a judgment carrying such a defect would be set aside on appeal. Arabe vs. Asanlu (1980) 5-6 SC 78. Corollary to that is the position where the land in dispute is well known to both parties, and in that case, the requirement for a survey plan which is one of the most used modes in describing the identity of the land in dispute, might not be necessary. In the case at hand even though the defendant raised the issue of the identity of the land in his statement of defense, there is ample evidence that parties are ad idem on the identity of the land.
The defendant by his paragraph 3 described the land in dispute as that bounded on the first part by the access road, on the second part by the land of Uduak Edem Eyo, on the 3rd part by the land of Mr Christopher Bassey Archibong and on the fourth part by the land of Uduak Edem Eyo.
By paragraph 2 of the appellant’s reply to the statement of defense, the defendant’s statement or

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description of the boundaries of the disputed land was admitted by the appellant, who further stated that the land purported to be owned by one Uduak Edem Eyo was in fact owned by his senior brother Anietie Edem Eyo. While Uduak Edem Eyo, and Anietie Edem Eyo and Christopher Bassey Archibong are all members of Nung Usanga Umoren Okure family of Anua offot village and not Ekpri Nsukara. Worthy of note is the fact that the names mentioned by the appellant in the statement of defence are the witnesses called by the respondent. I have no doubt agreeing with the lower Court that the land in dispute was clearly identifiable as it is well known to the parties. I resolve this issue against the appellant.

Lastly, did the refusal of the trial Court to allow appellant amend his statement of defense amount to a breach of the appellant’s right to fair hearing. It should be recalled that the appellant by way of an application filed on the 18th of March, 2016 sought the leave of Court to amend his statement of defense in the manner of the proposed amended statement of defense titled exhibit A, attached to the motion papers. The application which was moved on the

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11th of May, 2016 was refused by a ruling delivered on the same date. In refusing the application, the learned Judge was of the opinion that:
“I am therefore satisfied that the proposed amendment will result in injustice to the claimant and a violation of the hallowed principle of audi alteram partem. It is in the light of the foregoing that I hold that the defendant/applicant is not entitled to the reliefs sought”.
Looking at the record, it can be seen that the lower Court relied heavily on the authority of Okolo vs. UBN Plc (1999) 10 NWLR (pt. 623) 429, which held that:
“An amendment would be allowed if such an amendment will prevent injustice. Any amendment which will result in injustice to the other party or which will violate the rule of audi alteram partem will not be allowed”.
This indeed represents the position of the law with respect to the grant or refusing to grant an application to amend pleadings. This statement of the law, was supported by another eminent jurist, Ejiwunmi JSC, who held the view that, the case ofOsho vs. Ape (1998) 8NWLR (pt. 562) 492 is certainly not in support of the proposition that

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amendments could be granted which would be to the disadvantage of the other party to the action. The apex Court relying on its earlier judgment of The Shell Development Co. Ltd vs. Ambah (1999) 3 NWLR (pt. 5930 1 @ 10 per Wali JSC, to the effect that the principle of law relating to the amendment of pleadings is that it can be granted at any stage of the proceedings, provided it does not introduce a new cause of action or where it will be overreaching or prejudicial to the other party. The question would then be in the present position, how does all this principles apply to the instant case?
My simple answer is that the principles may not apply, for the simple reason that the question is not properly before the Court, the time allowed for the appellant to challenge the interlocutory application having been spent. It is obvious that the appellant by this issue is picking fault with the ruling of the lower Court delivered on the 11th of May, 2016, while the appeal against the said ruling was filed on the 13th of January, 2017, well over the 14 days window granted by Section 24 (2) (a) of the Court of Appeal Act 2004. For emphasis the section provides

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that:
(2) the periods for the giving of notices of appeal or notice of application for leave to appeal are:-
(a) in an appeal in a civil cause or matter, 14 days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
Apparently, the appeal against the interlocutory ruling of the lower Court was not in tune with the above cited provision of the law, nor did the appellant seek and obtain leave to file the appeal out of time, as demanded by the provisions of the law, the consequence of which is that this Court is denied the jurisdictional capacity to pronounce on the issue. In any case, the lower Court considered the merit of the application reaching the view that the application to amend was meant to over reach and introduced fresh character into the appellant’s case. This runs foul of the principle settled in the cases just enumerated above, and cannot be allowed. This issue is also resolved against the appellant.

​With the three issues being resolved against the appellant, the resultant conclusion is that the appeal is lacking in merit, and is thereby dismissed by me.

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Consequently, the judgment of Joy I. Unwana J, in suit No. HU/230/2014, delivered on the 13th of January, 2017 is hereby affirmed by me.
The appellant shall pay costs of N50,000.00 to the respondent.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Hamma Akawu Barka, JCA. My learned brother has carefully dealt with the three (3) issues nominated for the determination of this appeal.
I agree with the reasoning and conclusion reached in the lead judgment. I also dismiss the appeal as lacking in merit.
I abide with the consequential order and the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read before now the lead judgment of my learned brother; Hamma A. Barka, JCA. I agree entirely with the reasoning and conclusion therein.
I have nothing more to add. I also dismiss the appeal for lacking in merit.
I abide by all the consequential orders including the order as costs.

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Appearances:

Imo Udofia, Esq. For Appellant(s)

Lazarus A. Esq., holding the brief of Samuel Awakessien, Esq. For Respondent(s)