CHIEF S. J. EBIBOKEFIE & ORS v. CHIEF STEPHEN FRENCH TUME & ORS
(2018)LCN/12018(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of July, 2018
CA/PH/532/2012
RATIO
LAND LAW: WHERE PARTIES ARE IN DISPUTE ON AREA OF LAND
“That it is trite law that where parties are fully aware of the area of land in dispute and the evidence of the witnesses sufficiently described the boundaries of the land in dispute as pleaded, then the identity of the land in dispute will be considered as properly proved. Cited:OGUNSINA V MATANMI (2001) FWLR {Pt. 48} 1329 at 1336 paragraphs B – D. That the parties in the instant suit are fully aware of the area of land in dispute as pleaded by them. Cited and quoted MOTANYA V ELINWA (1994) 7 NWLR {356} 252 at 255. That the identity of the land in dispute is not determined by the name each of the contending parties deemed to call it. Rather, it is known by reference to its boundaries, distinctive features and location as established by pleadings and evidence. Cited ASSAM V OKPOSIN (2001) FWLR {Pt. 56} 630 at 640 paragraphs B – C.” PER BITRUS GYARAZAMA SANGA, J.C.A.
LAND LAW: ACTION FOR THE DECLARATION OF TITLE TO LAND
“The law is trite that in an action for declaration of title to land, the onus rest on the Plaintiff to establish with certainty the identity of the land in dispute. The land must be positively identified without any room for ambiguity. See OTANMA V YOUDUBAGHA (Supra) at page 2010 paragraphs A – C per MUSDAHER JSC. The law is also trite that the identity of the land in dispute will be in contention only if the Defendant(s) pleaded in his statement of defence his challenge to the identity of the land as pleaded by the Plaintiff. In ALHAJI RAUFU GBADAMOSI V OLAITAN DAIRO (2007) LPELR 1315 (SC) the Apex Court per MUSDAPHER JSC (as he then was) held thus: – ‘It is also now settled law that requires no citation of any authority, that the identity of a land in dispute will only be in issue if and only if the defendant in his statement of defence makes it one. If he disputes specifically either the area or the location or the features shown in the plaintiff?s plan, the identity of the land becomes an issue to be tried’.” PER BITRUS GYARAZAMA SANGA, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
1. CHIEF S. J. EBIBOKEFIE
2. CHIEF SIMEON PEREBOR
3. CHIEF WASY ENDIWOU
(For themselves and as representing EGBEMO-ANGALABIRI Community, Ekeremor Local Government Area of Bayelsa State) Appellant(s)
AND
1. CHIEF STEPHEN FRENCH TUME
2. CHIEF NOEL DABAZUOWEI
(For themselves and as representing LETUGBENE TOWN Community Ekeremor L.G.A. Bayelsa State)
3. SHELL PETROLEUM DEV. CO. OF NIGERIA LTD
4. WESTMINISTER DREDGING CO. LTD
5. HRM. M.J. AFRAGANA
6. CHIEF DICKSON PATTEN
7. CHIEF ZINKWARE AGUANANAGHA
(For themselves and as representing PERETORUGBENE Community Oporomor West L.G.A, Bayelsa State) Respondent(s)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment):
This appeal is from the judgment of High Court of Bayelsa State, Yenagoa Judicial Division; KATE ABIRI (C.J.) presiding delivered on 30th July 2012. The Appellants were the 3rd to 5th Defendants, the 5th to 7th Respondents were the 6th to 8th Defendants while the 1st and 2nd Respondents were the Claimants before the lower Court. The Claimants filed an endorsed Writ of Summons and a Statement of Claim dated 26th July, 1995. (pages 4 5 and 12 – 15 of the record of appeal). The Claimants then filed a Further Amended Statement of Claim dated 20th January, 2011 wherein they claimed as follows: –
1. AS AGAINST THE 3RD – 5TH, 6TH – 9TH DEFENDANTS:
A declaration of statutory right of occupancy to that piece or parcel of land known as and called KEMEFEGHEBOMO IGBO (LAND) and also sometimes called KEMEFEGHEBOMO LAND, which said land is lying, being and situate in Letugbene Town in the Ekeremo Local Government Area of Bayelsa State, a place within the jurisdiction of this Honourable Court and which said land is verged brown in the Survey Plan TSC/LD/105/94 prepared by T. L. NOAH ESQ. Licenced Surveyor, filed along with the original Statement of Claim.
2. AS AGAINST THE 1ST, 2ND, 3RD – 5TH, 6TH – 9th DEFENDANTS:
N10,000,000.00 (Ten Million Naira) being damages for trespass in that on or about 16th December, 1992, the 1st and 2nd Defendants through their servants, Agents, and/or workmen, without the consent of the Plaintiffs being first sought and obtained, wrongfully broke and entered into the Plaintiffs land to wit; KEMEFEGHEBOMO IGBO or KEMEGEGHENO IGBO and thereat, commenced sand filling and/or dredging activities in preparation for the construction of the TUNU FLOW STATION.
3. Perpetual Injunction restraining the Defendants by themselves, their servants, agents, workmen or otherwise howsoever from committing further acts of trespass on the plaintiffs land aforesaid.
4. Any other reliefs(s) as this Hon. Court may deem fit and proper to grant and/or make in circumstances. (page 621 of the Records).
The 1st Defendant (3rd Respondent) filed a Statement of Defence and defence to Counter Claim of the 6th to 8th Defendants (5th to 7th Respondents) on 4th February, 2011. The Appellants as 3rd to 5th Defendants filed a Consequential Further Amended Statement of Defence and Amended Counter Claim on 28th February, 2011 (pages 640 to 649 of the Records of Appeal). However the 2nd Defendant (4th Respondent) did not file any process nor did it secure legal representation. The 6th to 8th Defendants (5th to 7th Respondents) filed their processes but during trial of the suit abandoned same as both counsel and parties stopped attending Court. Pleadings were filed and exchanged and the matter went to trial.
During trial the Claimants called 3 witnesses and tendered several documents which were marked as Exhibits ‘A3’, ‘B1’ , ‘B4’, ‘C’, ‘D1’, ‘D2’, ‘E’, ‘F1’ , ‘F4’, ‘G’, ‘H’, ‘K’, ‘L’ and ‘M’. I noted that the learned trial Judge reviewed the evidence of the three witnesses, (CHIEF NOEL DABAZUOWEI – C.W.1; SURVEYOR T.L. NOAH – C.W.2 and MR. WILFRED IKIERE – C.W.3) on pages 820 – 827 of the records of appeal. The 1st Defendant (3rd Respondent) called only one witness MR. AFAM ESEAGWU, the Land Acquisition Officer of 1st Defendant. His testimony as captured by the learned trial Judge is on pages 287 289 of the record of appeal. D.W.2 is SURV. FUROEBI FREEDOM SHEBA AKENE he testified for the Appellants and tendered the Survey Plan he made as Exhibit ?N?. D.W.3 is TONZONIMIGHEN DIRIFA; he also testified for the Appellants. The Star witness called by the Appellants as 3rd – 5th Defendants is H.R.H. SUNDAY JOSEPH EBIBOKEFIE. His testimony is on pages 830 – 835 of the Records. Exhibits ‘P’, ‘Q1’, ‘Q2’ and ‘Q3’ were tendered and marked as Exhibits through D.W.4.
The facts in brief that led to filing the suit is that the Claimants own a large expanse of land which they called KEMEFEGHEBOMO IGBO which is within the Letugbene bush. The exact boundaries and other features on the land are captured on the Survey Plan No. TSC/LD/105/94 prepared by C.W.2 and marked as Exhibit ‘K’ (pages 786 – 790 of the record of appeal). The Claimants pleaded the history of the land from its founder and how it devolved to them (pages 7 – 14 of their pleadings). That they previously sued the 1st and 2nd Defendants and the Appellants in Suit No. IHC/22/91 in respect to some portions of the land in dispute. The bone of contention between the parties is the proposal by the 3rd Respondent to site what it called TUNU FLOW STATION on the Claimant’s land. That: –
18: On or about the 6th day of December, 1992 the 1st and 2nd Defendants (3rd and 4th Respondents in this appeal) through their Servants, Agents, and/or workmen broke and entered into the Plaintiffs aforesaid land with the intention of constructing Tunu Flow Station.
That the Claimants protested to high heavens that it is their land but the 1st and 2nd Defendants paid no heed to their protests. Several letters were written (8 in all) by the Claimants to 1st and 2nd Defendants. That instead the 1st and 2nd Defendants decided to pay compensation to the 3rd – 5th Defendants (Appellants in this appeal). That the Claimants community have numerous fishing camps and settlements on the land in dispute. They listed 32 names of the Communities (pages 616 – 617 of the Records).
When the 1st and 2nd Defendants ignored their demands the Claimants instituted this Suit.
The Appellants as 3rd to 5th Defendants filed a Consequential Further Amended Statement of Defence on pages 640 – 649 of the record of appeal. They denied the Claimants’ claims and gave their own version of the traditional history of the land in dispute. In paragraph 22 of the pleadings they listed 49 villages and communal markets in the satellite communities around the land in dispute. (pages 642 – 643 of the records) they counter-claimed against the Claimants and the 6th?9th Defendants as follows: –
1. A declaration that the 3rd – 5th defendants/ counter claimants are entitled to the customary right of occupancy over the parcel of land known as and called Akpolou-Toru in Egbemo-Angalbiri domain in Ekeremor Local Government Area of Bayelsa State as shown on Survey Plan No. FSA/BYS.01LD/2007 drawn up by Surveyor F.F.S. Akene and verged green and red dated 24th day of January, 2007.
2. The sum of N20,000,000:00 only as General Damages.
3. An Order of perpetual injunction restraining the Plaintiffs, the 6th – 9th defendants either by themselves, their agents, servants, privies, proxies and collaborators from further trespassing on to the said land in the Akopolou-Toru area Egbemo-Angalabiri domain in Ekeremor Local Government Area of Bayelsa State or laying any further claim of ownership or title to the said land. (pages 648 – 649 of the Records).
Learned counsel to the Claimants, 1st Defendant and 3rd to 5th Defendants then filed their respective written addresses and the learned trial Judge reserved for judgment. Judgment was delivered on 30/07/12. The learned trial Judge reviewed the pleadings of the parties and documentary and oral evidence adduced during trial. He then considered the issues canvassed by the 1st defendant which are as follows: –
A. Whether the plaintiffs have proved title to the land in dispute as to entitle them to the relief being claimed against the 1st Defendant.
B. Whether the plaintiffs have proved trespass against the 1st Defendant to be entitled to damages.
On issue (a) the learned Judge found as follows:
‘It is clear from the preponderance of evidence led and the exhibits before the Court that the claimants proved ownership of the land in dispute by traditional evidence. Therefore issue (a) is resolved in favour of the Claimants.’
On issue (b) the learned trial Judge held as follows:
‘The construction of the Tunu Flow Station on the land in dispute without proper acquisition from the rightful owners is clearly a case of trespass and the 1st defendant is indeed liable in trespass. The award of damages as claimed is therefore sustainable. The second issue us accordingly resolved in favour of the claimants.’
The 3rd – 5th Defendants (Appellants in this appeal) raised one issue as follow:
Whether the 3rd – 5th Defendants have offered enough evidence in rebuttal of the claims of the plaintiffs and proved their counter claim as required by law to justify a dismissal of the plaintiff case and entry of judgment on their counter claim for them.?
The learned trial Judge evaluated thoroughly the evidence adduced before him and held as follows:
‘It is clear from the foregoing that the 3rd – 5th Defendants did not dislodged the Claimants Claim nor proved their Counter Claim. The lone issue of the 3rd – 5th Defendants is therefore resolved in favour of the claimants. The 3rd – 5th Defendants’ counter claim is accordingly dismissed.?
The learned trial Judge concluded his findings and held thus:
1. AS AGAINST THE 3RD- 5TH, 6TH – 9TH DEFENDANTS:
A declaration of statutory right of occupancy to that piece or parcel of land known as and called KEMEFE-GHABOMO LAND, which said land is lying being situate in LETUGBENE Town in the Ekeremor Local Government Area of Bayelsa State, a place within the jurisdiction of this Honourable Court and which said land is verged brown in the survey plan TSC/LD/105/94 prepared by T.L. NOAH ESQ liecensed surveyor, filed along with the original Statement of claim.
2. AS AGAINST THE 1ST, 2ND, 3RD – 5TH, 6TH-9TH DEFENDANTS:
N10,000,000.00 (Ten Million Naira) being damages for trespass in that on or about 16th December, 1992, the 1st and 2nd defendants through their servants, agents and or workmen, without the consent of the plaintiffs being first sought and obtained, wrongfully broke and entered into the plaintiffs’ land to wit, KEMEFEGHEBOMO IGBO OR KEMEGEGHENO IGBO and thereat commenced sand filling and or dredging activities in preparation for the construction of the TUNU FLOW STATION.?
3. Perpetual Injunction restraining the defendants by themselves, their servant, agents, workmen or otherwise however from committing further acts of trespass on the claimants land aforesaid.?
The learned trial judge awarded cost of N100,000.00 in favour of the plaintiffs against each sets of the Defendants (pages 833-841 of the record of appeal).
The Judgment of the trial Court aggrieved the 3rd to 5th Defendants. They filed a Notice of Appeal on 02/02/2012 containing 7 grounds of appeal which, shorn of their particulars reads thus: –
GROUND 1
ERROR IN LAW
The learned trial Chief Judge erred in law when His Lordship held that the Claimants have proved their case with unbroken chain of devolution of the land in dispute to the present plaintiffs in the face of glaring absence of such credible evidence.
GROUND 2
ERROR IN LAW:
The learned trial Judge erred in law when the Court admitted and made use of a survey plan which were made in an earlier struck out suit No YHC/31/89 to decide the case in favour of the plaintiffs while dismissing the 3rd – 5th defendants counter claim.
GROUND 3
MISDIRECTION IN LAW:
The learned trial Judge misdirected Himself in law when the trial judge held that the 3rd – 5th defendants gave evidence that the land Kemefeghe-gbomo Igbo Land belong to the Bilabiri people after making crucial finding that the naming of the land in dispute by the parties is immaterial in the just determination of the case before the lower Court.
GROUND 4
ERROR IN LAW
The learned trial Judge erred in law when the trial Judge dismissed the counter claim of the 3rd – 5th defendant counter claimants on the ground that the 3rd ? 5th defendant/counter Claimants never proved the said counter claim when the plaintiffs/defendants in the counter claim never filed any pleading nor gave any evidence in challenge of the counter claim of the 3rd – 5th defendants/counter claim.
GROUND 5
ERROR IN LAW
The learned Trial Judge erred in law when the trial Judge held that the 1st defendant never tendered any document showing acquisition of the land in dispute from the 3rd – 5th defendants/counter claimants in 1971 when the case of both the plaintiffs and the 3rd – 5th defendant/counter claimants were hinged on traditional histories.
GROUND 6
ERROR IN LAW
The learned trial Judge erred in law in granting declaration of title to the plaintiffs and injunction against the 3rd – 5th defendants over the land in dispute when the plaintiffs never proved their title to the said land.
GROUND 7
The Judgment delivered by the trial Judge is against the weight of evidenced adduced at the trial by the 3rd – 5th defendant/counter claimants. (pages 842 – 847 of the record of appeal).
The Records of Appeal was compiled and transmitted to this Court on 17th December, 2012 but deemed as properly compiled and transmitted on 7th April, 2014 sequel to the motion on notice filed by learned counsel to the appellants on 24th September, 2013. The Appellants filed their Amended Brief of Argument on 26th September, 2014. It was deemed as properly filed and served on 25th April, 2018. The 1st and 2nd Respondents Amended Brief of Argument was filed on 9th May, 2018.
In their Amended Brief of Argument settled by O.J. IRE-RHIME Esq. the Appellants formulated 6 issues as follows:
1. Was the learned trial Judge right in law in granting to the respondents, declaration of title to land in the circumstance of this case where respondents failed to prove the extent and boundaries of the land in dispute or the land they claimed? (Ground 12)
2. Did the respondents in this case produce evidence of quality and quantity to entitle them to the grant of the declaration sought? In other words, was the learned trial Judge right to grant respondents’ declaration of title to land on the evidence produced by respondents’ (Grounds 1 and 8).
3. Was the learned trial Judge right in law to admit exhibits M&N in evidence, treat same as evidence and or use same to accredit respondents’ case and discredit appellants’ case (Grounds 2 and 14).
4. Was the learned trial Judge right in law
a) In holding that the issues of acquisition was raised by parties.
b) In putting on appellants burden to produce acquisition documents, none production of which the learned trial Judge held against the Appellants.
c) In holding against appellants the none production of the said documents.
d) In holding that compensation receipts for compensation paid to appellants for acquisition of the land by 1st defendant did not qualify as ‘an acquisition document.'(Grounds 5,9 and 10).
5. Was the learned trial Judge right in law in her understanding of the evidence of D.W,3 and D.W.4 quoted by her in the con of the case before her. In other words, was she right in law in doubting appellants’ evidence on the point and resolving the issue against them? (Grounds 3 and 13).
6. Was the learned trial Judge right in dismissing the appellants’ counter claim having regard to the appellants’ pleadings and the evidence of traditional history supported by numerous acts of possession?
The 1st and 2nd Respondents’ Amended Brief of Argument was prepared by Dr. S.S. Ameh (SAN) MFR. Learned senior counsel reframed the issues formulated by the appellants and formulated five issues for determination as follows:
1. Having regards to the Claim of the 1st and 2nd Respondents and the evidence adduced at the trial, was the learned trial Judge right in law in granting the 1st and 2nd Respondents declaration of title to the land in dispute called KEMEFEGHEBOMO LAND, having proved their title, extent and boundaries of the land on the preponderance of credible evidence?
2. Having regard to the totality of evidence and documents produced by the 1st and 2nd Respondents in proof of their claim, was the Learned Trial Judge right in granting declaration of title to the land in dispute to the 1st and 2nd Respondents as against the 3rd to 5th Appellants?
3. Considering the fact that Exhibits M & N are various Survey Plans produced by the Appellants at various times, on the same land in dispute but with varying features, was the Learned Trial Judge right in law in admitting the said Exhibits and making use of them?
4. Considering the state of pleadings in this case, the facts and the evidence of 3rd Respondent on question of acquisition, was the Learned Trial Judge right in law in holding that the issue of acquisition was raised by the parties in this case and that compensation receipts cannot take the place of acquisition document?
5. Considering the fact that the Appellants did not prove their counter claim on the balance of probability as required by law, being a distinct claim in law, was the trial Judge right in dismissing the Appellants’ said Counter Claim for lack of credible proof?
Upon a careful perusal of the issues for determination canvassed by learned counsel to the parties it is clear that they are similar except that issue 5 of the appellants was not captured by the respondents. It is however encompassed in the submissions by learned senior counsel to the 1st and 2nd Respondents in their submission. I will adopt the issues formulated by the appellants in determining this appeal.
Issue 1 is: –
Was the learned trial Judge right in law in granting to respondents, declaration of title to land in the circumstances of this case where respondents failed to prove the extent and boundaries of the land they claim?
In his submission while arguing this issue learned counsel to the appellants submitted that it is trite law that in a claim for declaration of title to land the duty of proving with definitive certainly, the identity of the land in respect of which title is sought is on the Claimant. Cited and quoted the Supreme Court holding, per ADEKEYE JSC, in NWOKIDU V. OKANU (2010) NWLR {Pt. 1181} 362 at 391 – 392. Learned counsel also cited: AWOTE V. OWODUNNI (NO. 2) (1987) 2 NWLR {Pt. 107} 192; OKEDARE V ADEBARA (1994) 6 NWLR {Pt. 349} 157. He quoted the holding by the learned trial Judge on page 834 of the Records where he said: –
‘To proceed, it is necessary at this stage to determine first, the identity of the land in dispute. This can be seen from the proceedings and evidence led and the plans tendered?.
That although the learned trial Judge said the identity of the land can be seen from the pleadings, evidence and plan tendered, he did not demonstrated how the evidence (oral or documentary) before him established the issues of identity before reaching his decision. That there is confusion in what constitute the land in dispute as pleaded by the Claimants in paragraph 5, where they said it is the area verged ‘brown’, while in paragraph 6 they said it is the area verged ‘green’ on their survey plan. That plaintiff’s pleadings in paragraphs 5, 6 and 7 of their amended statement of claim gave no clue as to what the ‘land in dispute’ is or as to its extent and boundaries. That the Plaintiffs’ averments in the pleadings did not amount to evidence in proof of the averment. Cited: EKENG V. ARCHIBONG (2010) All FWLR {Pt. 505} 1650 at 1673 paragraph E. per ORJI-ABADUA JCA.
That the learned trial Judge did not made findings as to location, extent and boundaries of the land in dispute. Learned counsel analysed paragraphs 5 and 6 of the Plaintiffs’ pleadings. That what the plaintiffs pleaded as land in dispute is only a part of the KEMEFEGHEBOMO IGBO bush the boundaries of which portion they did not plead. That the finding by the learned trial Judge that: –
”Parties are agreed as to the cause of action which is the land ‘the TUNU FLOW station of the 1st defendant is located (on page 835 of the records) is not correct and does not amount to finding of fact or proof of the location, extent and boundaries of the land in dispute. That the holding by the learned trial Judge on the same page of the record that: –
‘The identity therefore of the land in dispute is fixed to the land of the TUNU FLOW Station of the 1st defendant’, is also not correct and does not amount to a finding or proof of the extent and boundaries of the land in dispute which was not pleaded by the Plaintiffs.
That by paragraph 16 of the plaintiffs’ pleadings and the survey plan the cause of action pleaded is the ‘Proposed Tunu Flow Station’. That a ‘Proposed Flow Station’ is not the same as an existing flow station. That in referring to the land in dispute as ‘Land’ the flow station of the 1st and 2nd defendants, the learned trial Judge was in effect equating ‘a proposed flow station’ to a flow station. That he was wrong as Respondents’ case was based on ‘a proposed flow station’ and not one ready existing. That it is a misdirection for the learned trial Judge to substitute ‘a proposed flow station’ as pleaded for a ‘flow station’.
That neither plaintiffs nor C.W.2 gave evidence of the extent and boundaries of the land in dispute which were not pleaded. Learned counsel also argued that the plaintiffs did not call a single witness to testify that they share boundary with the plaintiffs inspite of the fact that in their Survey Plan (Exhibit K) they showed the land in dispute lying between the land of Peretorughabene and Ajagbene Communities. That the Plaintiffs did not call a single witness from these two neighboring communities to support their averment as to boundary.
Learned counsel submitted further that the learned trial Judge did not consider or evaluate exhibit ‘K’. he quoted the holding of learned trial Judge that the land in dispute is known to all the parties ‘as the land Tunu Flow Station of the 1st defendant is located, whether it is called KEMEGHEBOMO IGBO bush by the Claimant or AKPOLU-TONU by the 3rd to 5th Defendants’. That this holding by the learned trial Judge is mere speculation which did not help the plaintiffs who did not discharge the onus on them to establish the identity of the land in dispute.
That Exhibit ‘K’ (Survey Plan of the Plaintiffs) is fatally flawed as it is totally lacking in probative value. That C.W.2, the Surveyor, did not told the Court that any member of the Plaintiffs community took him to the land in dispute to show him the land and its location, its extent, its boundaries and any features marking the boundaries of the land. That without evidence to show that C.W.2 was taken round the land and showed him its features the survey plan produced is totally worthless. That the surveyor did not know the land in dispute, its extent and boundaries because the Plaintiffs did not take to the land.
Learned counsel finally submitted on this issue that the learned trial Judge did not and could not have determined the location, extent and boundary of the land in dispute as there was no such evidence before the Court. That it follows therefore that the learned trial Judge was in grave error when he entered judgment in favour of the respondents. He urged the Court to resolve this issue in favour of the appellants.
In his submission while arguing this issue, learned counsel to the 1st and 2nd Respondents stated that his clients clearly pleaded and proved the identity extent and boundaries of the land in dispute on the preponderance of credible evidence. Learned counsel quoted paragraphs 5 and 6 of their Further Amended Statement of Claim on page 610 of the record of appeal. That in paragraphs 7 and 8 of the 2nd Plaintiff’s Statement on Oath on page 334 of the Records and his oral evidence under cross examination the plaintiffs proved the identity, extent and boundaries of the land in dispute and the said features were not controverted under cross examination.
That the affidavit evidence of P.W.2 on pages 344 – 346 of the Records and his oral testimony under cross-examination (pages 785 – 790) and the Survey Plan (Exhibit K) clearly shows the identity of the land claimed by the plaintiffs and the boundaries as corroborated by the evidence of the P.W.3. That the law is trite that in an action for declaration of title to land, the onus is on the plaintiff to establish with certainty the identity of the land in dispute to which his claim relates. The land must be identified positively, without ambiguity. Cited: OTANMA V YOUDUBAGHA (2006) 2 FWLR {Pt.308} at 2010 paragraphs A – E.
Learned counsel submitted that the Defendants (including the appellants) are fully aware of the area, location and identity of the land in dispute. That the appellants even filed a counter claim claiming ownership of the same land but with different name.
That it is trite law that where parties are fully aware of the area of land in dispute and the evidence of the witnesses sufficiently described the boundaries of the land in dispute as pleaded, then the identity of the land in dispute will be considered as properly proved. Cited:OGUNSINA V MATANMI (2001) FWLR {Pt. 48} 1329 at 1336 paragraphs B – D. That the parties in the instant suit are fully aware of the area of land in dispute as pleaded by them. Cited and quoted MOTANYA V ELINWA (1994) 7 NWLR {356} 252 at 255. That the identity of the land in dispute is not determined by the name each of the contending parties deemed to call it. Rather, it is known by reference to its boundaries, distinctive features and location as established by pleadings and evidence. Cited ASSAM V OKPOSIN (2001) FWLR {Pt. 56} 630 at 640 paragraphs B – C.
Learned counsel finally submitted on his issue that in the evidence of the Surveyor (P.W.2) he stated clearly that he was briefed and instructed by the Plaintiffs to carry out a survey of the Plaintiffs land situate in the plaintiff’s Letugbene Community and then before produced Exhibit ‘K’. That a Survey Plan describes a disputed land by a graphic representation which enables the Court to know the land in dispute and be able to determine the area of land over which an order of injunction could be made. Cited: ADEAGBO V WILLIAMS (1998) 2 NWLR {Pt. 536} 120 at 127 paragraph F. That the Plaintiffs have successfully pleaded and proved the identity of the land in dispute as well as its extent and boundaries and have thus discharged the onus placed on them by the law. He urged the Court to resolve this issue in favour of the 1st and 2nd Respondents.
FINDINGS ON ISSUE 1:
For emphasis I quote issue 1 again
”Was the learned trial Judge right in law in granting to the respondents declaration of title to land in the circumstance of this case where respondents? failed to prove the extent and boundaries of the land in dispute or the land they claim?”
The law is trite that in an action for declaration of title to land, the onus rest on the Plaintiff to establish with certainty the identity of the land in dispute. The land must be positively identified without any room for ambiguity. See OTANMA V YOUDUBAGHA (Supra) at page 2010 paragraphs A – C per MUSDAHER JSC. The law is also trite that the identity of the land in dispute will be in contention only if the Defendant(s) pleaded in his statement of defence his challenge to the identity of the land as pleaded by the Plaintiff. In ALHAJI RAUFU GBADAMOSI V OLAITAN DAIRO (2007) LPELR 1315 (SC) the Apex Court per MUSDAPHER JSC (as he then was) held thus: –
‘It is also now settled law that requires no citation of any authority, that the identity of a land in dispute will only be in issue if and only if the defendant in his statement of defence makes it one. If he disputes specifically either the area or the location or the features shown in the plaintiff’s plan, the identity of the land becomes an issue to be tried’.
I have carefully scrutinised the Amended Statement of Defence of the 3rd – 5th Defendants and counter claim on pages 290 to 301 of the Records of Appeal and I find nowhere where the Appellants disputed the identity of the land in dispute. They are fully aware of the area of land in dispute as pleaded by the Plaintiffs and they did not challenged those averments in their pleadings. The Appellants are aware of the area, location and identity of the land in dispute. They even counter claimed ownership of the same land in their pleadings. In MRS BUKOLA ONABULE V PRINCE OLUSANYA SANYA (2016) LPELR 41423 (CA) this Court per NIMPAR JCA held on page 24 paragraphs B – E thus: –
‘The identity of the land in dispute becomes an issue only if the defendant in his statement of defence makes it so. See ANYANWU V UZOWUAKA (2009) 13 NWLR {Pt. 1159} 445 S.C. which held as follows: ‘The identity of the land in dispute will be an issue, if, and only if the defendant in their statement of defence made it one- that is, if disputed specifically either the area or size or the location or the features shown on the Plaintiff’s plan. When that is the case then the identity of the land becomes an issue’.
See also CHIEF BIBOPIRI AJUBE V MR. AKINGBUNA OMOSEEBI (2015) LPELR- 40528. In S. FATUADE V F.C.ONWOAMANAM (1990) LPELR- 1253 (SC) the Supreme Court stated clearly: –
‘While it is the law that in an action for declaration of title to land, the burden is on the plaintiff to prove the identity of the to which his claim relates KWADZO V ADJEI (1944) 10 W.A.C.A. 274, in this case in my view, on the facts before the trial Court, the identity of the subject matter in dispute was not in question. The identity of the land would only be in issue, if and only if the defendant in his statement of defence made it one. See EZEUDU V OBIAGWU (1986) 2 NWLR {Pt. 21} 208 AT 210’ per KAWU JSC.
As I stated above the Appellants did not challenge the pleadings and evidence of the 1st and 2nd Respondents on the identity of the land. They know the land in issue and although they gave it a different appellation, it does not change the land. Identity of land in issue is not determined by the name each of the contending parties decides to call it, it is rather known by reference its boundaries, distinctive features and location as established by pleadings and evidence. The learned trial Judge is perfectly right when he said in his judgment on page 835 of the Records that: –
”I would say that it is known to all parties as the land the Tunu Flow Station of the 1st defendant is located whether it is called KEMEGHEBOMO IGBO bush by the Claimants or AKPOLOU-TORU by the 3rd to 5th defendants”.
I noted that learned counsel to the appellants tried to disparage this holding by the learned trial Judge as ‘mere speculation’. With respect to learned counsel that holding is the position of the law as held by the Supreme Court and this Court. I also quote the holding of this Court in GABRIEL AKPUKPU & ORS V MEETING ELAGHA & ORS (2014) LPELR 22588 (CA) per OGUNWUMIJU, JCA on pages 31 -32 paragraphs G – B as follows: –
”It is trite that the onus is on the plaintiff to establish the identity of the land in dispute. Where as in this case, both sides know the land in dispute, such need may not arise. Before identity of the can become an issue in the dispute, the defendant must specifically make an issue of it in his pleadings by disputing the area or location or features shown in the plaintiffs plans or description. See GBADAMOSI V DAIRO (2007) 1 SCNJ 444”
It is my holding on this issue that the plaintiffs have discharged the burden placed on them in their pleadings in paragraphs 5 and 6 of their Amended Statement of Claim. The Survey Plan No. TSC/LD/105/94 marked as Exhibit ‘K’ during trial which show that the entire Community land is verged ‘green’ and the land in dispute verged ‘brown’ plus the testimonies of plaintiffs’ witnesses is a graphic representation that enables the Court to know the identity and dimension of the land in dispute. Therefore the entire submission by learned counsel to the appellants on this issue is discountenanced by me.
In conclusion I quote the Supreme Court in N.O. MOTANYA & ORS V ELIJAH ELINWA & ORS (1994) LPELR- 1919 (SC) Per KUTIGI JSC (as he then was) where the Learned Law Lord held thus: –
”Where parties to a land in dispute know the boundaries of the land and unmistakably admitted that in their pleadings, there is no need for the trial Court to make any finding of fact on the boundaries of the land. In the instant case, since the parties in their pleadings are ad idem as to the boundaries of the disputed land, the trial Judge need not have resorted to the evidence, that is, Exhibit J, before making a finding on the boundaries of the disputed land”.
It is my holding on this issue that the learned trial Judge was perfectly right when he entered judgment for the plaintiffs by granting to them title to the land in dispute. This issue is resolved in favour of the 1st and 2nd Respondents against the Appellants.
Learned counsel to the Appellants argued issues 2 and 5 together. The issues are: –
2. Did the Respondents in this case produce evidence of quality and quantity to enable them to the grant of the declaration sought? In other words, was the learned trial Judge right to grant respondents declaration of title to land on evidence produced by the respondents?
5. Was the learned trial Judge right in law in her understanding of the evidence of DW3 and DW4 quoted by her in the con of the case before her. In other words, was she right in law in doubting appellants? evidence on the point and resolving the issue against them?
I have already pronounced under issue 1 above that the learned trial Jude was perfectly right when he entered judgment for the plaintiffs by granting to them title to the land in dispute. This answered issue 2 canvassed by the appellants. I will therefore consider the submission by learned counsel to the appellants on issue 5 only.
Learned counsel made extensive submission on the reliance of the learned trial Judge on traditional history of the land in dispute. That the learned trial Judge relied solely on traditional history of the respondents to grant them title to the land in dispute. That he referred to the judgment of IDUNDUN & ORS V OKUMAGBA which laid down five ways of proving title to land. That the learned trial Judge held on page 838 of the record of appeal that: –
‘It is clear from the preponderance of evidence led and exhibits before the Court that the claimant proved ownership of the land in dispute by traditional evidence’.
That the learned trial Judge based his judgment on traditional evidence of the 1st and 2nd respondents and nothing else. That the learned trial Judge was gravely in error in predicating the declaration of title granted in this case on respondents’ traditional evidence. That none of the five ways of proving title to land as decided in IDUNDUN V OKUMAGBA can resolve the issue as to the extent and boundaries of the land in dispute in the instant suit. That the learned trial Judge was therefore wrong to resort to IDUNDUN V OKUMAGBA’s case. That by their pleadings, the case before the lower Court is one based on extent and boundaries of the land claimed by the Plaintiffs.
That the second point relied upon by the learned trial Judge for granting title to the respondents is his erroneous view of the evidence of the appellants, particularly DW3 and DW4. The law is trite that the onus is on claimant for declaration of title to land to establish his ownership of the land. That in order to discharge the burden of prove, the Claimant is to rely on the strength of his case by the evidence he produced and not rely on the weakness of his opponent’s case. That the learned trial Judge ‘appears to have awarded title to the respondents not on the strength of their case’ but what he considered as the weakness of appellants’ case. Learned counsel quoted the holding by the learned trial Judge on page 837 of the records where he said: –
”When asked under cross examination why he was claiming Kemefeghbomo land for Bilabiri community, DW4 said he did so in response to the Claimant’s pleadings. I wonder what the answer is meant to convey. However, a member of the said Bilabiri Community, Tonzonimighen Dirifa (D.W.3) who testified for the 3rd to 5th Defendants never made any such allusion. He only stated that the land in dispute belonged to the 3rd – 5th Defendants and that their Bilabiri Community had boundary with the 3rd – 5th defendants which boundary was a creek called Okpobiaye. He did not lay any claim to the Kemefeghebomo land which is the land in dispute”
Learned counsel submitted, based on this holding by the learned trial Judge, that he (the trial Judge) misapprehended the purport and intent of the evidence of D.W.4. That both parties pleaded that Bilabiri land share boarders with the land in dispute. That while respondents admitted that Bilabiri Community own land which shares boundary with the land in dispute the appellants also pleaded the same facts in paragraph 3 of their pleadings on page 641 of the record of appeal which learned counsel quoted in support of his assertion. That on the basis of the pleadings by the parties, the learned trial Judge could not have been in doubt as to what was meant by D.W.4’s answer during cross examination.
Learned counsel did the explanation of what D.W.4 meant during his cross-examination by stating that he (D.W.4) meant Bilabiri is the owner of the land the respondents called Kemefeghebomo Igbo. That if it is so understood, then the learned trial Judge was wrong to criticize the appellants’ evidence as he did. That D.W.3 did not have to give evidence of Bilabiri ownership of Kemefeghebono bush since he was called as a boundary witness and did just that in support of the appellants’ case. That Exhibit ‘L’, the Appellants’ Survey Plan supports the case as to its boundary with the Bilabiri Community. That since the learned trial Judge did not find anything wrong with D.W.3’s evidence as to boundary of the land in dispute he was wrong in ignoring such cogent evidence. That ‘there is no valid basis for attempting to undermine appellants’ case in the manner the learned trial Judge did’.
Learned counsel urged the Court to resolve this issue in favour of the appellants.
FINDINGS ON ISSUE 5
I have noted that the respondents did not argue issue 5 in their brief of argument. The issue was canvassed by the appellants basically to point out what they termed error in ‘trying to undermine appellants’ case’ on the part of the learned trial Judge where he pronounced on the evidence of D.W.4 when he was asked during cross examination. The learned trial Judge said on page 837 of the Records of Appeal that: –
‘When asked under cross examination why he was claiming Kemefeghebomo land for Bilabiri Community D.W.4 said he did so in response to the Claimants’ pleadings. I wonder what the answer was meant to convey.’
His lordship by the above comment was referring to the answer to a question by D.W.4 during his cross examination by N. NGWUKA Esq. counsel to the Claimants. On 30th January, 2012 learned counsel asked C.W.4 on page 813 of the record of appeal as follows: –
Question: – From your affidavit evidence why are you claiming Kemeghebomo land for Bilabiri community when the community itself is not claiming this land
Answer: – It is to respond to the plaintiff’s statement of claim?.
This answer is what drew the comment by the learned trial Judge when he said: ‘I wonder what the answer is meant to convey’.
I appreciate the comment by the learned trial Judge on the answer given by the D.W.4 that he is claiming that the land in dispute belong to the Bilabiri Community, even when the said Bilabiri Community is not claiming the land, in response to the 1st and 2nd respondents pleading in their statement of claim. This answer by D.W.4 also confused me and I also wonder what he was trying to convey or the reason for the answer. The answer in my opinion exposed the shallow nature of D.W.4’s thinking. This is a man who swore on oath in his written deposition that the land in dispute belongs to a neighbouring community which is not claiming the said land. He know fully well that he is lying, and when asked why he told the lie all he can say is because the claimants are claiming the land in their statement of claim. I really wonder what this answer was meant to convey?
Learned counsel to the appellants tried to make a mountain out of a mole hill in their response to the remark by the learned trial Judge which did not and cannot help their case. I agree with the learned trial Judge that the D.W.4 is an unreliable witness whose evidence is hard to believe and which I do not believe. He is not a witness of truth. The assertion by learned counsel to the appellants that the learned trial Judge appears to have awarded title to the respondents not on the strength of their case but on the weakness of the appellants’ case is not correct. That assertion is a misconception of the holding by the learned trial Judge while trying to review the evidence adduced before him by the parties. It is hereby discountenanced by me. I also resolve the issues 2 and 5 in favour of the 1st and 2nd respondents against the appellants.
ISSUE 3 is: –
Was the learned trial Judge right in law to admit exhibits ‘M’ and ‘N’ in evidence, treat same as evidence and or use same to accredit respondents’ case and discredit appellants’ case.
Learned counsel submitted on this issue that during trial C.W.2 applied to tender in evidence two survey plans filed in two previous cases by the appellants surveyor. That objections to the admissibility of the two documents were overruled by the learned trial Judge as reflected on page 787 of the records. That the learned trial Judge in his judgment on page 835 of the Records stated thus: –
‘It is however interesting to note that the survey plan of the 3rd ? 5th defendants, S, L, M and N on the same land in dispute indeed had few differences which were not properly explained. It is not enough for counsel to say that they were relying not on the two earlier plans without explaining the innate differences in them’.
Learned counsel submitted that what the learned trial Judge want to say here is not clear. That what is clear is that the 2 plans have nothing to do with this case. That the learned trial Judge considered them as one of the basis for criticizing the appellants’ case as he did. That the two plans were not meant for this case as there is no evidence that they relate to this suit. That C.W.2 tried to discredit the appellants’ plan made for this case but did not succeed. That neither of the plans are related to the land in dispute. That the plans are not relevant to this suit and ought not to have been admitted in evidence in this suit. He urged the Court to hold so and resolve this issue in their favour.
In his submission on this issue learned counsel to the 1st and 2nd Respondents contended that Exhibits L, M and N are various litigation survey plans made by the Appellants on the same land in dispute with varying and conflicting features, all in a bid to deceive the Court and conceal the true features, location and identity of the Claimants’ land in dispute. That Exhibits L, M and N were made in 1989, 2000 and 2007 respectively by the Appellants, all in respect of the same land in dispute. Learned counsel referred the Court to paragraphs 37 and 38 of the 2nd plaintiff (PW1) Statement on Oath on pages 632 and 633 of the records and paragraphs 35 and 36 of the Plaintiffs Further Amended Statement of claim on pages 618 to 619 of the records. That when exhibit ‘L’ was tendered learned counsel to the appellants did not object. Objection was only raised and overruled in respect to Exhibit M (pages 786 – 787 of the Records). That Exhibit N was tendered by the Appellants’ surveyor who testified as DW2, on pages 803 – 804 of the Records.
That Exhibits M & N were made for this case and there is aboundant unchallenged evidence that the two Survey Plans relate to the same land in dispute. That C.W.2 in his written depositions itemized the various discrepancies, inconsistencies and deceit displayed on the plans. That this evidence was not shaken under cross examination. Learned counsel referred to paragraphs 7 to 11 of the written deposition of C.W.2 on pages 7 to 11 of the records of appeal. Learned counsel quoted the paragraphs seriatim and submitted that these pieces of evidence as pleaded and proved by the Plaintiffs and their surveyor were unchallenged, uncontradicted and not shaken during cross examination. That the plans are relevant in the determination of the issues and facts raised in this case and the learned trial Judge was right to have admitted them in evidence. Learned counsel urged the Court to dismiss this appeal on this issue.
FINDINGS ON ISSUE 3:
I have read the testimony of P.W.2, Mr. Terry Lucky Noah the surveyor called to the witness box by the Plaintiffs. He tendered Exhibit ‘L’ which is a survey plan prepared by D.W.2 and there was no objection. It was admitted in evidence and so marked accordingly. (page 787 of the Records). Another survey plan was also tendered through P.W.2 but learned counsel to the appellant objected to its admissibility. The learned trial Judge overruled the objection admitted the document in evidence and marked same as Exhibit ‘M’. (pages 788 – 789 of the record). As for Exhibit ‘N’ it was admitted in evidence through Surveyor Eusoebi Sheba Akene the appellants’ surveyor who testified as D.W.2. (see page 805 of the record of appeal). It was admitted in evidence without any objection by the respondents’ counsel. The assertion by learned counsel to the appellants in his brief that the document was tendered through P.W.2 and it was objected to but overruled by the learned trial Judge is not correct. Same is hereby discountenanced.
I have carefully gone through the written deposition of P.W.2 on pages 344 to 346 of the records, particularly paragraphs 7, 8, 9, 10 and 11 how he meticulously pinpointed the contradictions, attempted cover-ups and superimposition of some portions of old survey plans on new survey plans etc. The depositions in respect of the exhibits and the evidences corroborating them were not challenged or contradicted by the appellants. It is not surprising therefore that the learned trial Judge made his observations on page 835 of the record of appeal that the Survey Plans made by the appellants and marked as Exhibits L, M and N are on the same land in dispute and contain ‘differences which were not properly explained’.
Learned trial Judge put it mildly in view because by the explanation of P.W.2 the exhibits contain discrepancies, inconsistence and outright deceit in an attempt to cover up the fact that they were made in respect of the land in dispute. The evidence of P.W.2 in that respect was not shaken during cross examination and I deem it as true.
It is my holding on this issue that the documents marked as Exhibits L, M and N were very relevant in the determination of the issues and facts raised in this suit. The learned trial Judge was perfectly right to have admitted them in evidence as they helped him in arriving at a just determination of this suit. This issue is also resolved in favour of 1st and 2nd Respondents against the appellants.
ISSUE 4 IS:
Was the learned trial Judge right in law
a) In holding that the issues of acquisition was raised by parties.
b) In putting on appellants the burden to produce acquisition documents; none production of which she held against the appellants.
c) In holding against the appellants the none production of the said documents.
d) In holding that compensation receipts for compensation paid to the appellants for acquisition of their land by 1st defendant did not qualify as ‘an acquisition document’.
In arguing this issue learned counsel to the appellants quoted the testimony of D.W.1 (the only witness called by the 3rd Respondent) on page 795 of the records and the holding by the learned trial Judge on evidence of D.W.1 in his judgment on page 838 of the records and faulted the holding by the learned trial Judge. That the learned trial Judge was wrong in using the testimony of D.W.1 against the appellants because the issue of acquisition of land or land acquisition, documents were not pleaded by either of the parties. Consequently the appellants were not under any obligation to produce the said acquisition documents. That any evidence elicited under cross examination on a matter or fact on which parties did not join issues goes to no issue and is irrelevant to the case. Cited:DINA V NEW NIGERIAN NEWSPAPERS LTD (1986) 2 NWLR {Pt. 22} 353 at 364 paragraphs A – B; per AKPATA JCA.
Learned counsel concluded by submitting that :
(a) An issue in a case does not arise from a statement of claim alone;
(b) The learned trial Judge was wrong to put on the appellants the onus of producing what he regarded as ‘acquisition document’, and
(c) A receipt for compensation received and signed by the parties and the recipient is enough evidence of acquisition and once pleaded, is admissible in evidence.
Learned counsel urged the Court to resolve this issue in favour of the appellants.
While arguing this issue, learned counsel to the 1st and 2nd Respondent submitted that D.W.1 pleaded in paragraph 5 of the 1st Defendant (now 3rd Respondent) Amended Statement of Defence that: –
”The 1st Defendant avers that it ACQUIRED the said land for its Tunu Flow Station from the Egbemo-Angalabiri (Appellants) and Agbidiama Communities”. (page 637 of the records).
That D.W.1 also deposed to the fact that the 1st Defendant acquired the land for its Tunu Flow State in paragraph 5 of his written deposition on page 348 of the records, D.W.1 re-affirmed during cross examination that the 1st Defendant acquired the land in dispute for its Tunu Flow Station. (On page 798 of the records). As for the compensation receipts marked as Exhibits ‘Q1’, ‘Q2’ and ‘Q3′ during trial, learned counsel submitted that the receipts were not issued for acquiring the land in dispute, rather they were for compensation paid to one Semisere Abiri and Foutoru Asimabiri of appellants’ community for loss of use of fishing site by the 1st Defendant and NOT for acquisition of the land in dispute or any land at all. (The receipts are on pages 560, 561 and 562 of the record of appeal).
That compensation for loss of fishing site or for loss of crops can be paid to anybody, even strangers. That the learned trial Judge was right in finding that the appellants failed to produce acquisition documents of the land in dispute.
FINDINGS ON ISSUE 4:
I have considered the submission by learned counsel to the parties on this issue. My findings are as follows:-
1. Learned counsel to the Appellants was not telling the truth when he submitted that the issue of acquisition of land or land acquisition documents were not pleaded by either the appellants or respondents and parties did not joined issue on acquisition of the land in issue. In the 1st Defendant’s Amended Statement of Defence and Defence to Counter Claim of 6th to 9th Defendants it was pleaded in paragraph 5 as follows: –
5. In answer to paragraphs 16 and 18 of the Plaintiffs Further Amended Statement of Claim, the 1st Defendant avers that it acquired the said land for its Tunu Flow Station from the Egbemo-Angalabiri and Agbidiama Communities?
I also find that the only witness called by the 3rd Respondent one Mr. AFAM ESEAGWU swore to a witness deposition on pages 347 – 348 of the records wherein he deposed thus: –
5. That the 1st Defendant acquired the land for its tunu flow station from the Egbemo-Angalabiri and Agbidiama Communities?. (See page 347 of the Records).
D.W.1 confirmed during cross-examination on pages 795 to 798 that the 3rd Respondent acquired the land from the two communities.
2. Since there is evidence that the issue of acquiring the land in dispute is in contention it logically follow that the 1st Defendant who alledgly acquired the land in dispute from the Appellants for its Tunu Flow Station and the Appellants from whom the land was acquired should produce and tender in evidence acquisition documents to prove the said acquisition. The learned trial Judge was once again perfectly right in placing the burden of producing the said acquisition documents on the Appellants who claimed to be owners of the said land in dispute.
Failure by the 1st Defendant and the Appellants to produce any acquisition document lends credence to the plaintiffs claim that the 1st Defendant through its agents and workmen broke and entered into plaintiffs land and commenced construction of Tunu Flow Station without the knowledge or consent of the Plaintiffs Community who are the rightful owners of the land in dispute.
As for Exhibits ‘Q1’, ‘Q2’ and ‘Q3’ tendered by the Appellants as acquisition documents of the land in dispute, I have carefully scrutinized the said documents on pages 560, 561 and 562 of the Records and to any utter amazement I found that the said receipts has no nexus with and are not connected to any payment for acquiring the land in dispute. It is payment of N4,500 by 1st Defendant to SEMISERE ABIRI and FOUTORU A SIMABIRI for ‘loss of use of fishing site’ and other ‘Claims for crops, tree etc’. Receipts for loss of fishing site and loss of crops, trees etc are not and cannot take the place of acquisition documents. The learned trial Judge was, again, perfectly right in his finding on page 838 of the record of appeal that: –
”It therefore means the acquisition for the construction of Tunu Flow Station should be documented particularly from such a responsible company as the 1st defendant. It is however shocking that no such documentation was brought before the Court, either by the 1st defendant who is insisting that the land was acquired from the 3rd – 5th defendants and better still from the 3rd ? 5th defendants who tendered compensation receipts”.
I once again resolve this issue in favour of the Respondents.
Issue 6 is:
Was the learned trial Judge right in dismissing the Appellants counter claim having regard to the appellants’ pleadings and evidence of traditional history supported by numerous acts of possession?
At the risk of being prolix I will answer this issue without equivocation in the positive.
Having considered my holding above, particularly on issue 1 where I pronounced that the learned trial Judge was right in granting to the 1st and 2nd Respondents a declaration of title to the land in dispute. Since it is the same land the appellants are lying claim to in their counter claim I cannot give title to the 1st and 2nd Respondents of the land in dispute and turn round to uphold the appellants counter claim.
In UWAGBOE OSAGIE & ORS V IGBINOSUN OBAZEE & ORS (2013) LPELR 21994 (CA) this Court while pronouncing on whether a counter-claim would fail where the main claim succeeds held, per LOKULO-SODIPE JSC on pages 44 – 45 paragraphs F – E as follows: –
”As already stated by me Appellants are very correct regarding their analysis of a counter-claim. The Appellants would however appear to have seriously misapprehended the manner of a trial in an action with a counter claim To the extent that they would appear to believe that evidence adduced in a case with a counter claim is compartmentalized or categorized into ‘evidence in the main suit’ and ‘evidence in the counter claim’ as it were. All that is required in a trial on pleadings is for the trial Court to identify the matters on which parties have joined issues and call for resolution and used the evidence adduced before it on the said issues… to resolve the issues in dispute…”
The evidence adduced before the lower Court in respect of the main claim is the same evidence used in the resolution of the counter-claim since the land in dispute is the same. The evidence adduced in the main claim is not separate from the evidence used in the counter claim. They are not compartmentalized into evidence for the main claim and evidence for counter claim. Therefore since the evidence adduced in the main claim is upheld then it follows that the counter-claim (though a separate claim that can stand on its own) is left bereft of evidence to support it.
Therefore it is my finding on this issue that the learned trial Judge was right in dismissing the Appellants’ counter claim.
Having resolved all the issues canvassed by the Appellants against them, it is the judgment of this Court that this appeal lacks merit it is hereby dismissed. The judgment of trial Court in suit No. YHC/31/94 delivered on 30th July, 2012 is hereby affirmed. Cost of N100,000 is awarded against the Appellants in favour of the 1st and 2nd Respondents.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had a preview of the Judgment of my learned brother, BITRUS GYARAZAMA SANGA JCA and I agree that this appeal lacks merit. I dismiss the appeal and I abide by the consequential orders
CORDELIA IFEOMA JOMBO-OFO J.C.A.: I read in draft the judgment delivered of my learned brother Bitrus Gyarazama Sanga, JCA. I agree with the sound reasoning and conclusion of my respected learned brother. The appeal is unmeritorious and it is hereby dismissed. The judgment delivered by the trial Court in suit No. YHC/31/94 on 30th July, 2012 is also affirmed by me.
I abide by the consequential orders regarding costs as made in the lead judgment.
Appearances:
Chief T.J.O. Okpoko, Esq. (SAN) with him, O. J. IrerhimeFor Appellant(s)
Dr. S. S. Ameh, Esq. SAN with him, I. A. Gadzama, Esq. for the 1st and 2nd respondents.
No appearance for the 3rd- 7th respondents.
For Respondent(s)
