EBONG & ORS v. ETIM & ORS (2020)

EBONG & ORS v. ETIM & ORS

(2020)LCN/14678(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, October 30, 2020

CA/C/342/2019

RATIO

LAND LAW: DUTY OF A PLAINTIFF SEEKING DECLARATION OF TITLE TO LAND

it is trite as posited, that a plaintiff seeking a declaration of title to land has the duty of showing clearly the area of land to which his claim relates, its exact boundaries and its extent so as to enable the Court to grant the declaration to the land identified, moreso as no Court is obliged to grant a declaration to an unidentified land. The cases of Asheik vs. Borno State Government (2012) 9NWLR (pt. 1304) 1, Ogedengbe vs. Balogun (2007) 9NWLR (pt.1039)380, and Adelusola vs. Akinde (2004) 12 NWLR (pt. 887) 295 to mention but a few. It follows therefore that a plaintiff is obligated to prove the identity of the disputed land failing which his claim must collapse. Okonkwo vs. Okonkwo (2010) LPELR-9357 (SC). PER BARKA, J.C.A.

LAND LAW: EFFECT OF WHERE THE PARTIES ARE AD IDEM ON THE IDENTITY OF THE DISPUTED LAND

It is equally the law that where the parties are ad idem on the identity of the disputed land, the plaintiff no longer has the burden of identifying the disputed land. In the words of the Supreme Court in Anagbado vs. Faruk (2018) LPELR-44909 (SC), per Eko JSC:
“The parties themselves know the portion of the land in dispute. In the circumstance, the identity of the disputed portion of the land is not in dispute. The principle well established since Baruwa vs. Ogunshola (1938) 4WACA 159 is that the onus is on the plaintiff who seeks a declaration of title to land to show clearly the area of the land to which his claim relates. Where however the parties themselves know the portion of land in dispute, this principle does not strictly apply”
And in strict fidelity to the position taken by the Apex Court, this Court also in RTMCN & Anor vs. Adeniji & Ors (2012) LPELR-19899 (CA) held that:
“In view of the fact that by the pieces of pleadings reproduced above, the parties were in agreement or ad idem on the identity of the disputed land as described in the respondent’s amended statement of claim (supra). The identity of the disputed land therefore is no longer an issue at the hearing of the suit at the Court below vide the case of Ayuya vs. Yonrin (2011) ALL FWLR (pt. 583) 1842 @ 1865, thus the bottom line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all, what is usually in dispute is the ownership of the particular land being claimed by the plaintiff…”
It should be recounted also that Oputa JSC, inNwobodo Ezeudu vs. Isaac Obiagwu (1986) 2NWLR (pt. 21) 208 @ 220, adopted and followed in the latter case of Anyanwu vs. Uzowuaka (2009) LPELR-515 (SC), that:
“The identity of the land in dispute will be in issue, if and only if, the defendants in their statement of defence made it one, that is if they disputed specifically either the area or the size or the location or the features shown on the plaintiffs’ plan. When such is the case, then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land”. PER BARKA, J.C.A.

EVIDENCE: ONUS OF PROOF IN CIVIL CASES

It is the general and accepted principle of law that in civil cases, the onus lies upon the plaintiffs, in this case the appellants as claimants to satisfy the Court that they are entitled on the evidence brought by them to the remedy he claims. The law goes further to state that the claimant must in doing so rely upon the strength of the case made by him and not on the weakness of the defence case, excepting where the defence case supports that of the claimant. Where he fails to discharge the burden so placed on him, judgment will be for the defendant. See Lasisi Adegbesan Abimbola vs. Saka Abatan (2001) 9 NWLR (pt. 717) 66, Ishola vs. UBN Ltd (2005) 6 NWLR (pt. 922) 422, Anthony Idesoh & Anor vs. Chief Paul Ordia (1997) LPELR-1421 (SC). Indeed as held numerously, all civil claims are proved on the balance of probabilities, with the onus of proof shifting depending on the nature of the evidence produced. PER BARKA, J.C.A.

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

ETEIDUNG EDEM ANIEDI EBONG 2. ELDER OKON EDET UDO 3. CHIEF INYANG ASUQUO AKPAN 4. CHIEF EDEM ASUQUO UDO 5. MR. VINCENT EDET ASUQUO (Suing For Themselves And As Representatives Of Ifa Ikot Akpan Village, Etoi In Uyo L.G.A.) APPELANT(S)

And

CHIEF WILLIAM EFFIONG ETIM 2. FRANCIES ASUQUO EDEM 3. CHIEF JOSEPH ETIM UDO OBOT 4. CHIEF EDEM EFFIONG AKPAN 5. CHIEF BASSEY EDEM AKPANDAK (For Themselves And As Representatives Of Ibiaku Issiet Village, In Uruan L.G.A). RESPONDENT(S)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Akwa Ibom State High Court sitting in Uyo Judicial Division and presided by Justice Charles U. Ikpe in suit No. HU/71/2017 between Etteidung Edem Aniedi Ebong and Four others suing for themselves and as representatives of Ifa Ikot Akpan village, Etoi in Uyo Local Government Area against Chief William Effiong Etim and 5 others suing for themselves and as representatives of Ibiaku Issiet village, Etoi in Uyo Local Government Area delivered on the 6th of March, 2019, wherein the lower Court held that the suit of the plaintiffs was lacking in merit and thereby dismissed with N40,000.00 costs in favour of the defendants.

It should be recalled that the appellants herein on the 27th of February, 2017, took out a writ of summons against the respondents, and by the amended writ of summons filed on the 15th of May, 2017 and the accompanying statement of claim, sought for the following reliefs:
1. A declaration that all that parcel of land which presently makes up the Keke motor park, in the area that Claimants earlier leased to Gitto Construczioni

Generali Nig. Ltd to serve as burrow pit together with its appurtenances lying and situate at Ifa Ikot Akpan village, Etoi, Uyo Local Government Area, Akwa Ibom State, belongs to the claimants having been in lawful possession of same ever since time immemorial.
2. A declaration that the Defendants’ entry through their agents, privies, assigns into claimants said keke motor park to ask and collect monies or revenues from users of the keke motor-park constitutes extortion, illegal and unlawful trespass.
3. A declaration that Defendants having acted unlawfully to trespass and extort monies and revenues meant for claimants, thereby making claimants loss monies meant for development of claimants village and the keke motor-park are liable to refund and or pay back to the claimants such sums illegally collected.
4. The sum of N10,000,000.00 (Ten Million Naira) only being generally damages for loss of revenue destructions, and trespass on claimants land.
5. AN ORDER of perpetual injunction restraining the defendants, their agents, privies, assigns etc from further acts of trespass and or extortion of revenues/monies from the claimants said

keke motor-park.

The claimants case as can be deduced from the amended statement of claim filed on the 15th day of August, 2017, is that their village known as Ifa Ikot Akpan, Etoi in the present day, Uyo Local Government Area of Akwa Ibom State are the bona fide owners of a parcel of land lying and situate by Idim Uduok a seasonal stream on the side belonging to Ifa Ikot Akpan village, Etoi Local Government Area of Akwa Ibom State.

The claimants go further to assert that the people of Ifa Ikot Akpan (i.e the claimants) migrated from Obio Oko in present day Cross River State and settled at their present location and being the first settlers deforested the whole area now known as Ifa Ikot Akpan, established their homes and farmlands up to a stream known as Idim Uduok.

The claimants also assert that presently Ifa Ikot Akpan Etoi has the following boundaries:
A. Idim Uduok, a stream which separates the borders with Ibiaku Issiet.
B. Ikot Abia Ntuen (by the right)
C. Ikot Idang village (by the left)
D. Ifa atai (at the back)

It was further asserted that the claimants forbears specialised in palm fruit planting and fishing,

while the people of Ibiaku Ikono (now Ibiaku Issiet) who originated from Ikot Ofon Ikono with their deity called Etefia were skilled in palm fruit harvesting. They settled amongst them as labourers, interacted and intermarried with the Ifa people.

With respect to the dispute leading to the instant appeal, the claimants aver that in the year 2008, Gitto Construczioni Generali Nig. Ltd approached them for the lease of the parcel of land for the purposes of using the site as a burrow pit for excavation of laterite for road construction. That the representatives selected by the claimants on the 14th day of November, 2008 executed a lease agreement with the construction company. At the end of which the land reverted to the claimants and was used as a keke NAPEP motor park, yielding revenue to the village up to sometimes in the December, 2016, when the defendants village Ibiaku Issiet in Uruan Local Government Area led by the 1st – 6th defendants stormed the park and started collecting the revenue belonging to them. They further stated that prior to the agreement with the construction company, they had been in possession of the parcel of land exercising

all manner of right thereon including selling the neighbouring land as the boundary has been the Idim Uduok seasonal stream to the knowledge of everybody. They alleged that the defendants had been known for land grabbing through their agents etc, and since that December, 2016 when they trespassed on to the land caused untold hardship and financial losses to the claimants, thus their claim before the lower Court.

The defendants in the amended statement of defence filed on the 25th of August, 2017 denied every allegation of fact contained in the amended statement of claim, contending that the claimants are not entitled to any or all the claims made against them, further contending that the claimants suit is vexatious, highly speculative and an abuse of the Court process which ought to be dismissed with substantial costs.

Specifically, the defendants denied the claim that the parcel of land by Idim Uduok belongs to the claimants, rather contending that the parcel of land belongs to them. They described the land as that bounded firstly by Una Etaha in Ifa Ikot Akpan village, Uyo local Government, secondly by Ifa Ikot Idang village, Uyo Local Government

Area, thirdly by Ifa Ikot Abia Ntuen village, Uyo local Government Area and lastly by Mbikpong Atai village, Ibesikpo Asutan Local Government Area, and that the defendants had been in possession since time immemorial.

The defendants referred to disputes over the same piece of land by the parties, particularly in the year 1972, when they alleged that claimants encroached upon the land in dispute, and in an attempt to resolve the conflict, one Asibong Akpan Okon took oath on behalf of the defendants, following which the claimants vacated the land for the defendants. They denied the assertion by the claimants that they had land or homes up to the boundaries of the stream, maintaining that the stream Idim Uduok is part and parcel of the defendants land.

The dispute eventually went to a full-fledged trial, at the end of which written addresses were ordered filed and adopted, leading to the vexed judgment to the effect that the plaintiffs’ suit was lacking in merit and thereby dismissed with costs.

Dissatisfied with the decision of the lower Court, the claimants appealed the decision when it filed a Notice of Appeal on the 19th of March 2019

predicated upon five grounds of Appeal. On the 6th of September, 2019, the record of proceedings of the lower Court were duly compiled and transmitted to this Court, thus setting the stage for the filing of briefs of argument. Appellant filed a brief of argument with the leave of Court on the 17th of October, 2019. On receipt of the respondents brief, appellant yet again filed the appellant’s reply brief on the 2nd of December, 2019. The respondents on their part filed in their brief of argument on the 19th of November, 2019. When the appeal eventually came up for hearing on the 10th of September, 2020, both parties identified their respective briefs of argument, adopted the same and urged the Court to grant their respective prayers. Whereas the appellant urged the Court to allow the appeal and to grant judgment to the appellants as per their statement of claim, the respondents on their part urged upon the Court to dismiss the appeal for lack of merit.

In the brief settled on behalf of the appellants by Jumbo Uyo-Obong Udom, of learned counsel for the appellants, five issues were distilled from the five grounds of appeal as follows:

was the trial Court right to have held that the appellant’s did not establish with certainty the area of land in dispute despite the state of pleadings on both sides identifying the same burrow pit portion in exhibit 2, the lease agreement?
ii. was the trial Court right to have countenanced boundaries of the disputed land as set up by the respondents, when the respondents never had any counterclaim in the suit?
iii. was the trial Court right in rejecting exhibit 3 being documentary evidence upon which the veracity of oral testimony of both sides ought to have been tested on whether Idim Uduok stream is not the correct boundary between the two villages of the parties?
iv. was the trial Court right to have held that the appellants failed to plead and lead credible traditional evidence to prove their root of title and that the founder of the land in issue was nameless, when the claimants had pleaded that the people of Ifa Ikot Akpan migrated as a group to become 1st settlers on the disputed land and when it is not the law that deforestation and first settlement must necessarily be by an individual?
v. was the trial Court justified in failing to

give probative weight to exhibits 1 – 3 and preferring to speculate on the unverifiable oral testimonies of respondents?

The respondents on their part, and in the brief settled on their behalf by Emmanuel Ekpenyong of learned counsel, identified two issues for the settlement of the appeal as follows:
i. whether having regard to the pleadings and the evidence before the trial Court, the appellants had proved with certainty the area of land in dispute.
ii. whether the evidence of traditional history by the appellants was satisfactory and conclusive enough to sustain their claim.

Having given the two set of issues distilled by the parties, it is my considered view that the appeal be looked at from the view of the complainant, i.e. the appellant, and thereby elect to be guided by the issues fronted by them. I would however note at this stage that the complaint raised by the appellant with regards to the issues formulated by the respondents being incompetent, as not arising from the grounds of appeal is absolutely without basis. To that regard, the case of Poroye vs. Makarfi & Ors. (2017) LPELR – 42738 (SC) and other cases in

that regard are not applicable.

Issue one
Whether having regards to the pleadings and the evidence before the trial Court the appellants had proved with certainty the area of land in dispute.

It is the submission of learned counsel that from the pleadings of parties, the disputed portion of land was clearly identified, and the claimant no longer has the burden of establishing the boundaries and or identity of the land. The cases ofAnagbado vs. Faruk (2018) LPELR-44909 (SC) 30-31, RTMCN & Anor vs. Adeniji & Ors. (2012) LPELR-19899 (CA) and Arabe vs. Asanlu (1980)5-7 SC 78 were cited in support of the legal principle.

Learned counsel drew the attention of the Court to paragraphs 3 of the claimants amended statement of claim as well as the response of the defendants by their paragraph 3 in the amended statement of defence and submits that by their averment, the defendants were not in doubt as to the identity of the disputed land. Learned counsel further made reference to paragraphs 18 – 22 of the amended statement of claim and response of the defendants by paragraphs 19-21 of the amended statement of defence, opining that the

defendants had expressly settled the issue of the identity of the land in dispute. Submitting further, it was the contention of the appellants counsel relying on the case of Samuel vs. Waziri (2016) LPELR-40313 (CA) 5, that the onus placed on the plaintiff to prove the identity of the area of the land claimed by him will only arise where the defendant makes an issue by disputing same. He argued that the issue of the identity of the land only arose at the address stage contending that in order for the Court to understand the case being put forward by the parties, it must consider the entirety of the pleadings. The case of Ugbo & anor vs. Ugbo (2018) LPELR-43783 (CA) was cited on the issue. He then urged the Court to find that the respondents before the lower Court did not make a case disputing the land in dispute and the lower Court’s conclusion on the issue at pages 323 of the record perverse. He urged the Court to re-examine the issue with the view of doing justice, and to set aside the holding of the trial Court on the issue.

On issue 2,
Was the trial Court right to have countenanced boundaries of the disputed land as set up by

respondents, when respondents never has any counterclaim in the suit?

Learned counsel with respect to the issue submitted that in an action for the declaration of title to land, the land in dispute to be considered is that parcel of land claimed by the claimant. Relying on the case of Odunze vs. Nwosu (2007) 13 NWLR (pt. 1050) 1, it was argued that although the defendants by their paragraph 4 of the amended statement of defence did not dispute the identity of the land, the trial Court erroneously relied on the pleadings of the defendants. He submits that even were the defendants to have set out different boundaries or shown that the land in dispute is different from that set up by the claimants, the trial Court was enjoined not to countenance such parallel land set by the defendants having not filed a counterclaim. He opined that the finding of the trial Court was perverse and thereby urged the Court to so find.

On Issue Three
Was the trial Court right in rejecting exhibit 3 being a documentary evidence upon which the veracity of oral testimony of both sides ought to have been tested on the correct boundary between the two villages of the

parties.

Submitting on the issue, learned counsel posited that the defendants hotly contested the issue of Idim Uduok stream being the natural boundary between the two villages. He referred to exhibit 3 being a certified deposition made by the 3rd respondent in an earlier proceeding involving them on the issue as well as the pleadings of the claimants in paragraphs 25 and 26, pointing out that the trial Court rather than confining its finding to the purpose for which it was produced, erroneously at page 322 of the record concluded that the document was tendered in order to prove that appellants were owners of the land being disputed. He submits that there was no legal basis for the rejection of exhibit 3 by the lower Court, insisting that the position of the law through the cases is that documentary evidence serves as a hanger in which the credibility of oral evidence is tested. He states that the trials Court’s rejection of the document on the issue of Idim Uduok stream being the natural boundary between the two villages, but rather going on to speculate and to believe the banal oral evidence of the 1st respondent, denied the appellant the means of

proving that the Idim Uduok stream is the natural boundary between the two villages as asserted by them. He urged the Court to correct the injustice by placing the necessary weight thereto and to resolve the issue in its favour.

On issue 4
Was the trial Court right to have held that the Appellant’s failed to plead and lead credible traditional evidence to prove their root of title and that the founder of the land in issue was nameless, when the appellants had pleaded that the people of Ifa Ikot Akpan migrated as a group to settle on the disputed land and when it is not the law that a founder of land must necessarily be an individual?

The submission of learned counsel herein related to the lower Court’s holding that appellants failed to plead and lead credible evidence in proof of their root of title. Making reference to paragraph 4 if the claimants amended statement of claim, as well the evidence of the Pw1 and Pw2, it was argued that no single individual can be said to have been the first settler, as it is in evidence that it was their forebears that deforested the land. He referred the Court to cases on how title to land can be

proved including Ajiboye vs. Ishola (2006) 6-7 SC 1 @ 16-17, Aremu vs. Adetoro (2007) ALL FWLR (pt. 388) 985, Ajose-Adeogun & Anor vs. Olojede & Ors. (2018) LPELR-43683 (CA), Michael Odunze & Ors vs. Nwosu & Ors. (2007) LPELR – SC. 387, amongst others, and submits that by the claimants pleadings in paragraph 4 and the evidence of the Pw1 and Pw2, appellants relied on traditional history of 1st settlement and deforestation. He urged the Court to therefore resolve the issue in favour of the appellants.

With respect to Issue 5
Was the trial Court justified in failing to give probative weight to exhibits 1-3 and preferring to speculate on the unverifiable oral testimonies of respondents?

Learned counsel on the issue reiterated the legal position that documentary evidence is preferred in proof of crucial issues, referring to the decision in Ezeamba vs. Ebeneme (supra) and Ebem vs. Nseyen (2016) LPELR-40122 (CA) 1 and complained that after rehashing the evidence adduced, that the trial Court was biased in the circumstance by rejecting all the vital documents put forward by the appellants and thereby denied them the legal means

to prove their case. Appellants urged the Court to intervene as the judgment in its entirety is perverse and to set aside the said judgment.

The response by the respondents as aforestated is condensed under two issues, the first being:
Whether having regard to the pleadings and the evidence before the trial Court the appellants had proved with certainty the area of the land in dispute.

Submitting on the issue, learned counsel for the respondents argued that a claimant for a declaration of title to land primarily must plead and give clearly the identity of the land he is claiming. The cases of Pada vs. Galadima (2018) 3NWLR (pt. 1607) 436, and Kolo vs. Lawan (2018)13 NWLR (pt. 1637) 497 @ 511, were cited in that regard. He referred to the boundaries of land contained in paragraph 5 of the claimants’ amended statement of claim, contending that what was described therein are the boundaries of the village and not the area constituting the burrow pit or area in dispute. He goes further to state that the description of the land under paragraph 3 of the amended statement of claim has been denied by paragraph 3 of the amended statement of defence as well

as paragraph nine of the further amended statement of defence. Further referring to paragraphs 10 and 12 of the amended statement of defence, it was submitted for the respondents that the identity of the disputed land had been made an issue. He attacked the survey plan filed by the claimants, stressing that it lacks value and was rightly rejected. In urging the Court to resolve the issue against the appellant, it was argued that where the claimant fails to establish with certainty the location, boundaries, features and the extent of the land he is claiming, that omission qualifies his claim for dismissal. Also with respect to the second issue distilled for the respondent;
Whether the evidence of traditional history adduced by the appellants was satisfactory and conclusive enough to sustain their claim.

It was the submission herein that a claim for declaration of title to land is discretionary, and can only be granted where certain conditions are fulfilled. He argued that the claimant having placed reliance on traditional history as can be seen by their paragraph 4 of the claimants amended statement of claim, and premised on the authority of

Pada vs. Galadima (2018) 3NWLR (pt. 1607) 436 @ 440, must plead and prove the names of the founder and those after him of the land in contention. He then argued that in a claim for title to land where all the reliefs claimed by the plaintiff predicated on ownership or exclusive possession fails, automatically affects the other reliefs claimed. The case of Onovo vs. Mba (2014) 14NWLR (pt. 1427) 391 @ 401 was cited in support. He urged the Court to therefore resolve the issue against the appellant and conclusively dismiss the appeal.

Resolution of the issues.
Commencing with the first issue agitated by the appellants, it is trite as posited, that a plaintiff seeking a declaration of title to land has the duty of showing clearly the area of land to which his claim relates, its exact boundaries and its extent so as to enable the Court to grant the declaration to the land identified, moreso as no Court is obliged to grant a declaration to an unidentified land. The cases of Asheik vs. Borno State Government (2012) 9NWLR (pt. 1304) 1, Ogedengbe vs. Balogun (2007) 9NWLR (pt.1039)380, and Adelusola vs. Akinde (2004) 12 NWLR (pt. 887) 295 to mention but a few. It

follows therefore that a plaintiff is obligated to prove the identity of the disputed land failing which his claim must collapse. Okonkwo vs. Okonkwo (2010) LPELR-9357 (SC).

above, the parties were in agreement or ad idem on the identity of the disputed land as described in the respondent’s amended statement of claim (supra). The identity of the disputed land therefore is no longer an issue at the hearing of the suit at the Court below vide the case of Ayuya vs. Yonrin (2011) ALL FWLR (pt. 583) 1842 @ 1865, thus the bottom line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all, what is usually in dispute is the ownership of the particular land being claimed by the plaintiff…”
It should be recounted also that Oputa JSC, inNwobodo Ezeudu vs. Isaac Obiagwu (1986) 2NWLR (pt. 21) 208 @ 220, adopted and followed in the latter case of Anyanwu vs. Uzowuaka (2009) LPELR-515 (SC), that:
“The identity of the land in dispute will be in issue, if and only if, the defendants in their statement of defence made it one, that is if they disputed specifically either the area or the size or the location or the features shown on the plaintiffs’ plan. When such is the case, then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted

that it is a ritual in land cases for the plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land”.

I have no hesitation in agreeing with the learned counsel for the respondents that this issue is central to the appellant’s case. The lower Court in its judgment at page 314 of the record relying on the case ofElias vs. Chief Omobare (1982) 5SC 25, re-echoed the legal position taken thereat that the primary duty for the plaintiff seeking for a declaration of title to land is always to show with certainty the area and identity of the land for which a declaration of title is being sought. In the case at hand, and after analysing the pleadings of the parties, the lower Court agreed with the respondents that the issue of the identity of the land was made an issue, and concluded that appellants failed to establish with certainty the identity of the land being disputed. This I believe is the fulcrum of the appellant’s complaint on the issue.

It was argued for the appellants, that contrary to the holding of the lower Court, the respondents did not put the

identity of the land in issue and referred this Court to paragraphs 3 of the claimants amended statement of claim, responded to by paragraph 8 of the respondents amended statement of defence, thus:

Paragraph 3 of the claimants amended statement of claim.
“The claimants aver that their village Ifa Ikot Akpan Etoi in Uyo Local Government Area of Akwa Ibom State is the bonafide owner of a parcel of land lying and situate by Idim Uduok (seasonal stream) on the side belonging to Ifa Ikot Akpan village, Etoi, Uyo Local Government Area of Akwa Ibom state, which was used as burrow pit for excavation of laterite for construction of Akwa Ibom, Airport Road in 2008, covering an area of about 6,531.008 meters, as reflected in their lease agreement with Gitto Construczioni Generalli Ltd.”

The response of the respondents by their amended statement of defence is as follows:
“Further to paragraph 3 of the amended statement of claim, the defendants aver that there had been various disputes between the claimants and the defendants concerning the land in dispute. Sometime in 1972 the claimants encroached into the land in dispute belonging to the

defendants. In an attempt to resolve the dispute the people of Ifa Ikot Akpan challenged the people of Ibiaku Issiet to swear to an oath and claim the land in dispute if they were owners”

Appellants further referred this Court to the response by the respondents in their paragraphs 19-21 of the amended statement of defence to the appellants paragraphs 18 – 22, contending on the authority of Samuel vs. Waziri (2016) LPELR-40313 (CA), that from the pleadings referred to by the parties, the onus on the plaintiff to prove the identity of the area of land in dispute, not having been disputed is no longer in dispute, and the plaintiff no longer under any duty strictly describing the disputed land.

I have therefore critically examined the arguments of the learned counsel on the issue, and having carefully and dispassionately studied the paragraphs highlighted, particularly the respondents response in paragraph 8 of their further amended statement of defence to the claimants paragraph 3 of the amended statement of claim, I am left in no doubt at all that parties are at id idem as to the identity of the disputed land and upon the authority of

Samuel vs. Waziri (supra) amongst others, the burden placed on the plaintiff to prove the identity of the disputed land no longer arises, and the lower Court wrong to have held otherwise. The position of the law on the issue is clear. It is that though it is imperative that the identity of the claimed in an action for the declaration of title to land is certain, and the duty of ascertaining the disputed land resting on the claimant, where the identity of the disputed land is certain, that duty is no longer imposed on the claimant regardless of any name given to it by the adverse party, and therefore of little assistance or value in ascertaining the precise boundaries or features of the land. SeeAiyeola vs. Pedro (2014) 13 NWLR (pt. 1424) 409, Ifeadi vs. Atedze (1998) 13 NWLR (pt. 581) 205. Concomitantly, where there is no dispute in identifying the land, a declaration of title to land can be made without it being based on a survey plan. See Aiyeola vs. Pedro (supra), Arabe vs. Asanlu (1980) 5-7 SC 78, Ibuluya vs. Dikibo (1976) 5 SC 97.
Furthermore, a critical examination of the lower Court’s judgment revealed that it relied heavily on what the

respondents described as the disputed land as against what the claimants set out to claim. In this regard, I find the decision of Chukwuma – Eneh JSC in the case of Odunze vs. Nwosu (2007) 13 NWLR (pt. 1050) 1 to the effect that the land in dispute in a land suit is none other than the parcel of land claimed by the claimants, apt on the point. The claimants claim certainly cannot be tied solely to any land described by the defendants, unless there is a counterclaim filed by the defendants which in this case has no application.
It’s obvious therefore that the trial Courts conclusion to the effect that appellant needed to have asserted the identity of the disputed land, when it is obvious that the parties themselves knew the portion of the land in dispute, by the authority of Anagbado vs. Faruk (supra) the identity of the portion of the land cannot be said to be in dispute and the holding of the lower Court in that regard perverse. See also Aromire vs. Awoyemi (1972) 2 SC 1. It is only where a defendant in the statement of defense specifically disputes either the area or size covered or the location shown in the plaintiffs’ pleadings or

plan, as described in the statement of claim, can it be said that the identity of the land was made an issue. The conclusion of the matter is that the disputed land being that piece of land known to both parties as stated by the defendants in their paragraph 8 of the statement of defence, the need for the claimant further describing the same is vitiated, and the holding of the lower Court perverse in the extreme.

In the circumstance, I totally agree with the appellant’s counsel on the authority ofWhite Diamonds Property Development Co. Ltd vs. Trade Wheels Ltd (2018) LPELR-44572 (CA), that the decision of a Court of trial can be said to be perverse when the findings of the Court ignored the facts or evidence before it amounting to a miscarriage of justice, thus entitling this Court sitting on appeal to interfere with the said decision. Having therefore resolved that the decision of the lower Court on the issue is perverse, this Court resultantly sets aside the conclusion arrived at by the Court below thus resolving the issue in favour of the appellants.

With regards to issue two canvassed by the appellants, which was invariably resolved in the

resolution of issue one, to the effect that the Court ought not to have relied upon or countenanced the portion of land described or identified by the respondents as against that claimed by the appellant, Odunze vs. Nwosu (supra), that issue is also resolved in favour of the appellant.

Let me proceed to attend to issue four as distilled by the appellants, and in doing so invariably examine issues 3 and 5 raised. Issue four is couched as follows;
Whether the trial Court was right to have held that the appellants failed to plead and lead credible traditional evidence to prove that the founder of the land in issue was nameless when the appellants had pleaded that the people of Ifa Ikot Akpan migrated as a group to settle on the disputed land and whether it is the law that a founder of land must necessarily be an individual.

The other issues raised as issue 3 and 5 seek to question the lower Court’s decision with regards to the lower Court’s rejection of the documents tendered by the claimants and the ascription of probative value thereto.

The gravamen of the appellants’ complaint with respect to the issue stems from the lower

Courts holding which is to the effect that appellants failed to plead and lead credible traditional evidence establishing their root of title. Specifically, the lower Court at page 323 of the record in its judgment, stated that:
“In summary, I have shown in this suit that whereas the onus was on the plaintiffs to establish with certainty the locally (sic) identity and area of land in dispute the plaintiff failed to do so and failed to connect the land in dispute to their own side of the land with Idim Uduok as boundary between the plaintiffs village and the defendants village. And indeed if the plaintiffs had established in evidence that boundary the plaintiff did not seek for any declaration that the said Idim Uduok forms the natural boundary between the plaintiffs village and the defendant village and therefore no declaration would have been made and the plaintiffs failed to plead and lead credible traditional evidence to prove their root of title. When the location identity and area of land claimed by the plaintiff is not proved with certainty it is futile to engage in further deliberations in the case”.

The plaintiffs now argue that

by their paragraph 4 of the amended statement of claim as well as the depositions of the Pw1 and Pw2, the holding of the trial Court cannot be sustained. The cases of Ajiboye vs. Ishola (supra), Aremu vs. Adetoro (2007) ALL FWLR (pt. 388) 985, Ajose-Adeogun & Anor vs. Olojede & Ors (supra), Michael Odunze vs. Nwosu (supra), Idundun v. Okumagba (1976) 9-10 SC 227, Biariko vs. Edeh-Ogwuile (2001) 12 NWLR (pt. 726) 235, Yusuf vs. Adegoke (2007) 6SC (pt. 1) 126 were all reeled out on the preposition that first settlement on the land presupposes deforestation of virgin land where no other persons had been before and which is under no control or authority of any persons or community. In any case it was argued for the appellants that no law demands that where land is founded by a community of persons an individual amongst them should be so named as the founder, rather contending that there was no single founder of Ifa Ikot Akpan village as the people migrated as a group and settled together as first settlers. Mr. Ekpenyong, the learned counsel for the respondent on the issue, relying on the cases ofPada vs. Galadima (supra), Ogunleye vs. Jaiyeoba (2011) 9 NWLR

(pt. 1252) 339 @ 342 and Dikibo vs. John (2019) 12 NWLR (pt. 1686) 183 @ 186 holds to the opinion that the name of the founder of the land and those after him without leaving gaps or linkages are a necessary requirement in proving or establishing the traditional history of the land or its root of title.

Kekere-Ekun JSC in the recent case of Edosa vs. Ogiemwanre (2019) 8NWLR (pt. 1673) 1 @ 15-16, relying on the decision of Oputa JSC in Dike & ors vs. Nzeka II & ors (1986) 4NWLR (pt. 34) 144 @ 158 pointed out that:
“Traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land. Traditional history is a bit of ancient history. It is hearsay evidence only elevated to the status of admissible evidence by the statutory provision of the Evidence Act… “
Appropriately, the appellants as claimants before the trial Court, and from paragraph 4 of the amended statement of claim, pleaded how their forbears came to be where they are, having been the first settlers. The pieces of

evidence rendered by the Pw1 and Pw2 supported the pleading. The reaction of the respondents to the claimants claim can be seen from paragraph 9 of the amended statement of defence, to the effect that:
9. The defendants react to paragraph 4 of the amended statement of claim by saying that Ifa Ikot Akpan village does not have any homes or farmlands up to the boundaries of a stream or any stream named Idim Uduok, further, the defendants maintain that Idim Uduok is part and parcel of the defendants land that was founded by the defendants ancestor, Ekong.
This position by the respondents was further highlighted by the respondents witness Chief William Effiong Etim. In essence, the claimants assertion as to how they happened to be on the land known as Ifa Ikot Akpan was never questioned by the respondents, as all that was disputed is whether the stream known as Idim Uduok forms the boundary between the two villages or forms part of the respondents village. The position advanced by the trial Court therefore holding that claimants failed to plead and to lead evidence in support of their traditional history on the premise that no named individual was

ascribed the disputed land is not founded on any legal preposition. Where an individual is credited with the founding of a settlement, the name of the founder and the subsequent persons inheriting after him becomes a prerequisite as stated in Pada vs. Galadima (supra) and all other cases cited by the respondents. This however is not the case of the claimants, who averred that the land was deforested by their forefathers, and not by an individual. The holding therefore that the claimants forefather was nameless is of no moment as the cases cited are inapplicable to the instant case. Apparently, the two neighbouring villages having all laid claim to the disputed land, with the appellants claiming that the stream Idim Uduok being the boundary between the two communities, while the respondents claim the disputed land including the Idim Uduok stream, invariably have delimited their case to a boundary dispute between the parties. The issue of the claimants tracing their traditional history becomes of no moment. The case of Princewill vs. Amachree (2005) 3NWLR (pt. 912) 358 @ 372 per Ikongbeh JCA is apt on this issue, having held that where in a land matter the

dispute between the parties is as to what features marks the boundary between them, there is no need tracing traditional history. Just as in the case at hand the trial Court seems to have wasted precious time pursuing the issue of the claimants traditional history, as my respectful view is that what was before the Court was whether claimants proved their ownership of the disputed piece of land as to entitle them to judgment. I intend to proceed and to determine the issue anon.

The claimants by their paragraph 3 of the amended statement of claim, aver that their village Ifa Ikot Akpan Etoi in Uyo Local Government area of Akwa Ibom State are the bonafide owners of the parcel of land lying and situate by Idim Uduok (seasonal Stream) on the side belonging to Ifa Ikot Akpan village. To buttress their claim, claimants by their paragraphs 18 – 27 averred as follows:
18. In respect of the present dispute giving rise to this suit, Claimants aver that sometimes in 2008 they were approached by Gitto Construczioni Generali Nig. Ltd. for the lease of the said parcel of land for the purpose of using same as burrow pit for excavation of laterite for road

construction.
19. Claimants aver that consequently some representatives of the Claimants were appointed via a letter dated 11/11/2008 and titled “APPOINTMENT OF REPRESENTATIVES” for the purpose of signing and executing lease agreement between Claimants village and Gitto Construczioni Generali Nig. Ltd. The Claimants shall rely on the said letter; same is hereby annexed to the list of Claimant documents.
20. The Claimants aver that on 14/11/2008, a lease agreement was executed between Claimants and Gitto Construczioni Generali Nig. Ltd to use the above mention portion of land as a burrow pit. Claimant shall rely on a copy of the lease agreement, which is hereby pleaded and annexed to the list of Claimants documents.
21. That it was agreed between the Claimants and Gitto Construczioni Generali Nig. Ltd. that at the expiration of the said lease, possession of the land shall revert to the Claimants, after refilling the burrow pit to be used for any purpose.
22. That however at the end of the lease, the parcel of land reverted to the Claimants after it was refilled. The Claimants then arranged the place to be used as a Keke

motor-park which had been yielding daily revenue for the running of Claimants Village until the trespass and interference by the Defendants.
23. That sometimes in December, 206, indigenes of the Defendants’ village, Ibiaku Issiet in Uruan Local Government Area led by 1st to 6th Defendants stormed Claimants said keke motor-park and demanded and forcefully collected revenue from the operators of the keke motor-park belonging to the Claimants.
24. The Claimants aver that before leasing the said parcel of Gitto Construczioni Generali Nig. Ltd. for burrow pit excavation, they had always been in possession of the land in issue, and that they had in fact been the ones who sold all the neighbouring lands within the area to the present owners, and that Defendants had never at anytime sold any land within the environs of the disputed land or ever crossed the Idim Uduok seasonal stream into Ifa Ikot Akpan area to sell any portion to any one of the present owners or occupiers.
25. That ever since the existence of the two Villages of Ifa Ikot Akpan and Ibiaku Issiet had been a known fact of history by all indigenes of both villages that the Idim

Uduok (Seasonal stream) had always been the undisputed natural boundary between the two villages and non of the indigenes ever crossed to trespass in either side.
26. That even the 3rd Defendant had clearly acknowledged and admitted this fact in a previous proceeding before this Honourable High Court in Suit No. HU/126/2013 which he had with some other parties. In his Statement of Defence on that suit, at paragraph 11 and replicated in his adopted Statement on Oath in the same proceeding, asserted as follows: “Idim Uduok is a seasonal stream which also serves as the boundary between Ibiaku Issiet and Ifa Ikot Akpan, Etoi”. C.T.C. of the said Court process shall be relied on and is annexed to the list of documents.
27. And furthermore, his only witness in the said suit, one Forward Okon Etim, also confirmed in his Deposition in that suit that he investigated the land Chief Joseph Udo Obot (3rd Defendant) sold in that suit and found that the land which was across the Idim Uduok (seasonal stream) on the side of the Claimants was indeed original land of Ifa Ikot Akpan, but that the father of 3rd Claimant, Chief Asuquo Akpan Udo, a bonafide

indigene of Ifa Ikot Akpan Village, Etoi, Uyo sold sae to the 3rd Defendant’s father. The witness Deposition shall also be relied upon as annexed.

In reaction to the claimants claim to the disputed parcel of land, the respondents herein by their paragraph 4 aver that, “We are the bonafide owners of the parcel of land encompassing Idim Uduok in Ibiaku Issiet village aforesaid”, and in further refutal of the claimants case, also averred in their further amended statement of defence as follows:-
19. The defendants do not admit the averments in paragraph 18 to 21 of the amended statement of claim and shall during trial demand of the claimants strict proof of same. In further answer thereto the defendants state that sometime in 2008 one Mr. Forward Okon Etim (now deceased) was an agent of Gitto Construczioni Generali Nigeria Limited (hereinafter simply called ‘the company). The said Forward Okon Etim approached one Chief Basset Akpandak and told him the company wanted a parcel of land in the defendants’ village and that the land will be sued as burrow pit for excavation of laterite for the construction or road that will lead

to Akwa Ibom International Airport.
20. Further to the request Chief Bassey Akpandak took Forward Okon Etim to the acting village head of the defendants’ village then, Chief Effiong Essien Udo. Subsequently, Chief Effiong Essien Udo in company of Chief Bassey Akpandak, Chief Okon Edet Udoenyin and Forward Okon Etim inspected a piece of land which is part of the land on dispute and let same to the company.
21. The company agreed to pay the defendants the sum of N600,000 for the use of the land as burrow pit. The said sum of N600,000 was eventually paid to Chief Effiong Essien Udo who in turn paid same to his subjects whose lands were affected by the burrow pit. One of the beneficiaries of the payment is Chief Bassey Akpandak who was paid the sum of N210,000.
22. The defendants deny paragraphs 22 and 23 of the amended statement of claim and shall during trial put the claimants to the strictest proof of the allegations. As further answer the defendants plead that the claimants are not the owners of the land in dispute. Additionally, the defendants aver that there is no keke motor park on the land in dispute.
23. The defendants vehemently

object to the claim of the claimants contained in paragraph 24 of the amended statement of claim and state that the claimants are not the owners of the land in dispute, and the claimants have never sold any piece or parcel of land to anybody.
24. In reaction to the allegation contained in paragraph 25 of the amended statement of claim, the defendants aver that ‘Idim Uduok’ has never been the natural boundary between Ifa Ikot Akpan and Ibiaku Issiet. The defendants state emphatically that the boundary between Ibiaku Issiet and Ifa Ikot Akpan right from time immemorial is ‘Urua Etaha’ (meaning in English, ‘Etaha Market’) and there is s boundary tree, namely ‘Okono tree’ standing along the boundary line till date.
25. The defendants stoutly deny the allegations in paragraphs 26 to 29 of the amended statement of claim and shall put the claimants to the strictest proof thereof. Further, the defendants say that the claimants are not entitled to any or all the claims against the defendants. Again, it shall be contended on behalf of the defendants that the claimants’ suit is vexations, highly speculative,

an abuse of Court process and that same should be dismissed with substantial costs.

to lay evidence with regards to their claim on the disputed land. I have earlier before now referred to the pleadings of the appellants before the lower Court, as well as averments in rebuttal. I have also alluded to the evidence of the Pw1 and Pw2 called by the claimants, as well as that called by the respondents. It is noteworthy also that the respondents on their part not only denied the claimants claim, but equally asserted that the disputed land belongs to them.

It is the trite position of the law, that where the issue being agitated upon touches on who of the two claimants has a better right of possession to and or occupation of a piece or parcel of land, which is being disputed, the law will ascribe possession and or occupation to the person with a better title thereto. See Aiyeola vs. Pedro (supra), Fasoro vs. Beyioku (1988) 2NWLR (pt. 76) 263, Aromire vs. Awoyemi (supra) and Olohunde vs. Adeyoju (2000) 10 NWLR (pt. 676) 562.
The appellant by their averment under paragraph 4 of the amended statement of claim, substantiated by the depositions of the Pw1 and Pw2 stated that the people of Ifa Ikot Akpan migrated from Obio Oko in the present day

Cross river State and settled at their present location, being the 1st settlers going down memory lane. That their forbears deforested the whole area, established their homes and farmlands up to the boundaries of a stream named Idim Uduok. Learned counsel relying on case law notably Ajiboye vs. Ishola (supra),Aremu vs. Adetoro (supra) Ajose-Adeogun vs. Olojede (supra) and Odunze vs. Nwosu (supra) amongst others sought to establish the fact that title to land can be established amongst others by traditional evidence of acquiring the land by deforestation of the virgin land by the first settlers. The complaint of the appellant by this issue centers on the fact that the lower Court failed to properly evaluate the evidence adduced on the issue, thus arriving at a perverse decision.
The respondents on the other hand strongly contend that the defendants are the bonafide owners of the parcel of land encompassing Idim Uduok in Ibiaku Issiet village. They further averred that Ifa Ikot Akpan village does not have any homes or farmlands up to the boundaries of a stream or any stream named Idim Uduok, and further maintained that Idim Uduok is part and parcel of the

defendants land founded by the defendants’ ancestors Ekong.
Indeed by the traditional history relied upon by the respondents by their paragraphs 3 – 9 of the further amended statement of defence, sought to deny the claimants claim for the parcel of land in contention.
In Ozuzu vs. Emewu (2019) 13 NWLR (pt.1688) 143 @ 154, Nweze JSC, alluding to the observation of Lord Denning in the celebrated case ofKojo vs. Bonsie (1957) 1WLR 1223, thus:
“Witnesses of the utmost veracity may speak honestly but erroneously of what took place a hundred years ago. Where there is a conflict of traditional history on one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable”.
See also Edosa vs. Ogiemwanre (2019) 8NWLR (pt. 1673) 1@ 24, which held that the principle in Kojo vs. Bonsie (supra) relates to facts which the Court should advert to in coming to a conclusion on the probability

of evidence of tradition”.
Going by the principle of law enunciated in Kojo vs. Bonsie (supra), and adopted in a number of Nigerian cases including the recent case of Edosa vs. Ogiemwanre (supra), in gauging the facts in recent years worthy of the Court resorting to in coming to the conclusion which of the traditions relied upon by the parties, specifically as to the area in dispute with regards to the traditional history adduced is probable.
Now the claimants claimed in their paragraph 18 – 27, earlier reproduced, averred that a lease agreement was executed between their representatives on their behalf on one hand and a company by the name Gitto Construczioni Generali Nig. Ltd for the use of the burrow pit on the portion of land now being disputed. Claimants pleaded and gave evidence that at the end of the lease, the parcel of land reverted to them, which they now converted to a keke motor park collecting revenue therefrom. They went further to assert that in December of 2016 indigenes from the defendant’s village, led by the 1st – 6th defendants stormed the area and forcefully started collecting revenue thereat. Claimants

maintained that prior to the leasing of the parcel of land to the company to be used as a burrow pit, they had always been in peaceful possession of the land, and did in fact sell portions of the land to its present owners. They further maintained that ever since, the Idim Uduok stream had always been the undisputed natural boundary between the two villages. They further asserted that the 3rd defendant in a previous proceeding in suit No. HU/126/2013 acknowledged the stream known as Idim Uduok as the boundary between the two villages. He further pointed out that one Forward Okon Etim in the suit just mentioned had stated that the land Chief Obot (3rd Defendant) sold across the Idim Uduok stream on the side of the claimants belongs to the land of Ifa Ikot Akpan.
The lower Court on the issue reasoned that the claimants took it for granted that it was a well-known fact that the said Idim Uduok stream formed the natural boundary between the two villages from time immemorial. The lower Court went further to reason that the desire of the claimants seeking to show that the Idim Uduok stream is on their side must have been supported by relevant facts as to

the natural boundary between the two villages. If I understand the lower Court well on the issue, it would seem that the Court failed to appreciate the evidence put in by the claimants establishing the fact that the stream forms the natural boundary between the two villages.
The record bears out that the appellants by their pleadings and the documents tendered proved that they were in possession of the disputed land and thereby owners thereof having leased the said land to Gitto in the year 2008 used to excavate laterite without the respondents challenging them for a period running to a year. In support of the assertion the appellants tendered a list of the land owners in exhibit 1, the lease agreement with the lease company Gitto, incorporating the sketch plan as exhibit 2. On the other hand, respondents failed to back up their assertion that they similarly leased the land to Gitto with any documentary proof.

It is settled law that when a document is pleaded, tendered and admitted in evidence, that document becomes the best evidence of its contents, and the Court cannot disregard it. See Emeje vs. Positive (2010) 1NWLR (pt. 1174) 49, Atanda vs. Ifelagba

(2003) 17NWLR (pt. 849) 274. In that vein, exhibit 1, having as a prelude asserted that appellants are the owners of the parcel of land to be used as a burrow pit at Ifa Ikot Akpan, Etoi, Uyo local Government Area voluntarily surrendered to be used as a burrow pit by Gitto Construzioni Generali Nigeria Limited, supported the oral evidence adduced by the appellants. Therefore on whether which of the two parties leased land to Gitto, the documentary evidence can be said to have resolved the area of conflict which arose. See Dr. Charles Ezenwa vs. Katsina Health service Management Board (2011) 9NWLR (pt. 1251) 89 @ 99, Kimdey vs. Military Governor of Gongola State (1988) 2NWLR (pt. 77) 445, Ebba vs. Ogodo (1984) 1SCNLR 372.
The legal counsel for the appellant is equally on sound footing, when it questioned the lower Court’s rejection of exhibit 3 being the deposition of the 3rd respondent herein, the oldest man in the respondents village in the earlier case in suit HU/426/2013, where the 3rd respondent as 2nd defendant, whereby paragraphs 8 and 11 thereof, it was deposed that:
8. The 2nd defendant inherited the said land from his late father,

Mr. Etim Udo Obot who bought the land from Eteha Usanga Inyang from Nung Inyang in Ifa Ikot Akpan.
11. The land the 2nd defendant sold was his personal land bounded to the right by the land of Etim Okong Inyang, to the left by the land of Inyang Asuquo Akpan, to the front by the land of Chief Effiong Essien Udo and behind by Idim Uduok, a seasonal stream which also serves as the boundary between Ibiaku Issiet and Ifa Ikot Akpan Etoi.
The appellants had in their pleadings, specifically at paragraphs 25 and 26 thereof pleaded and adduced evidence to the effect that:
25. That ever since the existence of two villages of Ife Ikot Akpan and Ibiaku Issiet it had been a known fact of history by all indigenes of both villages that the Idim Uduok (Seasonal Stream) had always been the undisputed natural boundary between the two villages and none of the indigenes ever crossed to trespass on either side.
26. That even the 3rd Defendant had clearly acknowledged and admitted this fact in a previous proceedings before this Honourable High Court in Suit No: HU/126/2013 which he had with some other parties. In his statement of Defence in that suit, at

paragraph 11 and replicated in his adopted statement on oath in the same proceeding, asserted as follows: “Idim Uduok is a seasonal stream which also serves as the boundary between Ibiaku Issiet and Ife Ikot Akpan, Etoi”. C.T.C of the said Court process shall be relied on and is annexed to the list of document”.
Mr. Ekpeyong for the respondent had argued, employing the decisions of Amadi vs. Orji (2016) 9 NWLR (pt. 1516) 154, Idesoh vs. Ordia (1997) 2 SCNJ 75, and Babalola vs. Aladejana (2001) 6 SCNJ 146, which argument the trial Court accepted, that unless the preconditions under Section 74 of the Evidence Act, 2011 are established, a witness deposition in an earlier case, or the evidence of a witness in a different case is not proof of the fact of the matter. I agree with that position of the law, excepting that the principle is distinguishable in that situation where the witness in that case, happens to be a party in the proceedings. In any case, a document signed by a party binds the party that signs it. SeeAgwunedu vs. Onwumere (1994) 1NWLR (pt. 1206) 589 @ 596, Okoya vs. Santilli (1994) 4 NWLR (pt. 338) 256.
From the foregoing

therefore, I find myself accepting the submission of the appellant’s counsel that there was no bases for the trial Court to have rejected that piece of evidence which sought to establish the fact that the seasonal stream, the Idim Uduok stream remained the natural boundary of the two villages, as against his postulations that the piece of evidence sought to establish that the land belongs to the appellants. The rejection of the document tendered without objection was clearly made in grave error, and the decision cannot be allowed to stand.
The trial Court indeed had no justification rejecting the documents tendered by the appellants in proof of their case, when the contents of the documents were not countered. The decision of the lower Court rejecting exhibits 1 – 3 is without basis and I so hold. Issues 3, 4 and 5 are thereby resolved in favour of the appellant.

Having therefore resolved all the issues in favour of the appellants, the appeal succeeds and it is hereby allowed by me. The decision of Hon. Justice Charles U. Ikpe of the Akwa Ibom State High Court delivered on the 6th of March, 2019 in suit No HU/71/2017, wherefore the

plaintiffs, (appellant’s herein) suit was dismissed with costs of N40,000.00 is hereby set aside. In its place, appellants reliefs contained in paragraph 30 of the claimants (appellants herein) amended Statement of claim is hereby granted as prayed. For the avoidance of doubt, the following reliefs are hereby granted the appellants as follows:
1. A declaration that all that parcel of land which presently makes up the Keke motor park, in the area that the claimants earlier leased to Gitto Construczioni Generali Nig. Ltd to serve as burrow pit together with its appurtenances lying and situate at Ifa Ikot Akpan village, Etoi, Uyo local Government Area Akwa Ibom state, belongs to the claimants now appellants having been in lawful possession of same ever since time immemorial.
2. A declaration that the defendants entry through their agents, privies, assigns into claimants said keke motor park to ask and collect monies or revenues from users of the keke motor park constitutes extortion, illegal and unlawful trespass.
3. A declaration that the defendants having acted unlawfully to trespass and extort monies and revenue meant for the claimants,

thereby making claimants loss monies meant for development of claimants village and the Keke Motor park are liable to refund and or pay back to the claimants such sums illegally collected.
4. The sum of N10,000,000.00 (Ten Million Naira) only being general damages for loss of revenue destructions, and trespass on claimants land.
5. An order of perpetual injunction restraining the defendants now respondents, their agents, privies, assigns etc from further acts of trespass and or extortion of revenues/monies from the claimants said Keke motor park.

I also award to the appellant’s the cost of this action which I assess at N50,000.00 (Fifty Thousand) Naira only.

Appeal Allowed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance he judgment delivered by my learned brother Hamma Akawu Barka, JCA My learned brother has painstakingly dealt with the issues nominated for determination of the appeal
I agree with the reasoning and conclusion reached in the judgment

I also find merit in the appeal and I allow the appeal I abide with the order as to costs

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity

of reading in draft the judgment just delivered by my learned brother Hamma A. Barka, JCA and I agree with the reasoning and conclusion therein.

My learned brother has dealt with the issues canvassed so exhaustively that I have nothing useful to add. For the same reasons contained in the lead judgment, I too allow the appeal. I abide by the consequential orders including the consequential orders as to costs.

Appearances:

Jumbo Udom Esq. For Appellant(s)

No legal representation for the Respondents. For Respondent(s)