EHIZOYANYAN & ANOR v. EHIZOYANYAN (2021)

EHIZOYANYAN & ANOR v. EHIZOYANYAN

(2021)LCN/15145(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/B/259/2016

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. JONATHAN AIGBOKHAEBHO EHIZOYANYAN 2. OSADEBAMHEN AKHIMIEN IHENYEN APPELANT(S)

And

JAMES I. AIGBOKHAEBHO EHIZOYANYAN RESPONDENT(S)

RATIO

POSITION OF THE LAW REGARDING THE WAYS BY WHICH OWNERSHIP OF LAND MAY BE PROVED

It is a trite principle of law that there are five ways of proving ownership of land as enunciated in the infamous case of IDUNDUN v OKUMAGBA (1976) LPELR – 1431 (SC), to wit; ii. By traditional evidence ii. By production of duly authenticated documents of title iii. By acts of ownership extending over a period of time iv. By acts of long possession and enjoyment of land v. By proof of possession of connected or adjacent land. See;ILIYA & ANOR v LAMU & ANOR (2019) LPELR 47048 (CA) where it was held thus “Since 1976 when Idundun vs. Okumagba was decided by the Supreme Court, the Courts have held that title to land can be established by traditional evidence; (2) Production of documents of title duly authenticated in the sense that their due execution must be proved; (3) By positive acts of ownership extending over a sufficient length of time (4) By acts of long possession and enjoyment of the land; (5) By Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of the land in dispute. The law is that the establishment of one of the ways enumerated above is sufficient proof of ownership of the land. See Idundun vs. Okumagba (1976) 9 – 10 SC 337, Ayoola vs Odofin (1984) 11 SC 120 and Nkado vs. Obano (1997) 5 NWLR (PT. 503) 31.” per ABIRIYI, JCA (PP. 19 – 20, PARAS D B). See also; IDRIS v SEINE (2019) LPELR – 46993 (CA); ARIJE v ARIJE & ORS (2018) LPELR – 44193 (SC); ANAGBADO v FARUK (2018) LPELR – 44909 (SC); OKPRUBIA & ORS v OKUMOOKU & ORS (2019) LPELR – 47120 (CA). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

EFFECT OF THE FAILURE OF THE PLAINTIFF TO PROVE THE TBE IDENTITY AND BOUNDARY OF THE LAND IN DISPUTE

It is a principle of law that a Claimant has a duty to give adequate description as to the identity, boundaries and the area of land he is claiming with certainty and accuracy. This burden to prove the identity and boundaries of the land in dispute is on the claimant who discharges same by either oral description or by survey plan and where this burden is sought to be discharged by oral description, the test is whether a surveyor based on the description can prepare and produce a plan on the said land. Failure to discharge this burden leads to a dismissal of the Claimant’s claims. In YESUFU OGEDENGBE & ORS v CHIEF J. B BALOGUN & ORS (2007) LPELR – 2297 (SC); it was held on the effect of failure to prove boundaries of the land claimed; “It is also firmly settled, that where a plaintiff in an action for declaration of title, fails to prove the boundaries of the land he is claiming, he has failed by that omission, to prove his case and the proper order which the Court should make in such circumstance, is usually one of dismissal of the claim. See Amata v. Modekwe (1954) 14 WACA 580; Alade v Dina (1943) 17 NLR 32; Epi & Anor v. Aigbedion (1975) 1 NMLR 31; (1973) 5 UILR. (PT. 11) 157; (1972) 10 S. C 53; and Ugbo v. Nwokeke 6 ENLR 106.” per OGBUAGU, JSC (PP. 9 – 10, PARAS F – B) See also; MRS GLADY’S EZENWERE v CHIEF K. K. OGUAMANAM (2019) LPELR – 47036 (CA); KAZE v ABOK (2018) LPELR – 46322 (CA); OSEMEIKHIAN v EDIONWELE & ORS (2016) LPELR – 40499 (CA). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

WHETHER PROOF OF IDENTITY IS REQUIRED WHERE THE IDENTITY OF THE LAND IN DISPUTE IS KNOWN TO THE PARTIES

In this instant case, the parties knew the location of the land in dispute and the identity of the land was not in issue as the Appellants/Defendants did not make it one nor did they specifically dispute either the area or the features described in the Claimant’s statement of claim. See NJOKU & ORS v IRECHUKWU & ANOR (2013) LPELR – 20673 (CA) where it was held; “…the need to prove the identity of the land will arise in every case where the defendant joins issues with the Plaintiff on the question of the identity of the land would be in issue if, and only if, the defendant in his pleadings or in his oral evidence disputes either the area of the land or its location. See NWOKIDU v OKANU (SUPRA); AYUYA v YONRIN (2011) 10 NWLR (PT. 1254) P. 135; KANO v MAI KAJI (2011) 7 NWLR (PT. 1275) P. 139 AND OLOKUNLADE v ADEMILOYO (2011) 15 NWLR (PT. 1269) P. 72, per TSAMMANI, JCA (PP. 48 – 49, PARAS, E – A) See also: ONUBE v ASUAKOR & ORS (2019) LPELR – 47231 (CA); BABATOLA v ADEWUMI (2011) LPELR – 3945 (CA); ATUCHUKWU v ADINDU (2011) LPELR – 3821 (CA). It is also a principle of law that where the parties know the identity of the land in dispute, it is unnecessary for the Claimant to identify it. In ATANDA v ILIASU (2012) LPELR – 19662 (SC), the apex Court held on whether proof of identity is required where the identity of the land in dispute is known to the parties thus; “Generally, a Plaintiff’s claim for declaration of title to land and/or injunction pursuant to claim for damages consequent upon trespass by the Defendant succeeds only where the identity of the land in respect of which the reliefs are sought is certain. However, where the identity of the land is not an issue in the sense that parties know exactly the identity of the land, the subject — matter of the dispute between them, the requirement that the plaintiff and/or parties prove(s) the identity of the land ceases to be a necessity. See Buraimoh v Bamgbose (1989) 3 NWLR (PT. 109) 42 352 SC; Okonkwo v Adigwu (1985) 1 NWLR (1985) 1 NWLR (pt. 4) 694. Maberi v Alade (1987) 2 NWLR (Pt. 55) 101.” per MUSA DATTIJO MUHAMMAD. Also, KYARI v ALKALI & ORS (2001) LPELR – 1728 (SC), where it was held thus; “…where the identity of the land in dispute is not in issue between the parties, no onus, naturally, lies on a claimant for declaration of title to such land to prove the said identity as that fact is not an issue for determination between the parties in the suit.” per ANTHONY IKECHUKWU IGUH, JSC (PP 21 – 21, PARAS D – E), See also; ANAGBADO v FARUK (2018) LPELR — 44909 (SC); SHETTIMA v GHULUZE (2018) LPELR – 46316 (CA); JAGABA & ORS v UMAR (2016) LPELR – 40466 (CA); ADUGBO v IBE (2018) LPELR – 46138 (CA). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

DEFINITION OF A GIFT INTER VIVOS

A gift inter vivos has defined in ANYAEGBUNAM v OSAKA & ORS (2000) LPELR – 508 (SC) thus “A gift inter – vivos is an act whereby something is voluntarily transferred from the true possessor to another person with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver. See Halsbury’s Laws of England. 3rd Edition, Vol. 18, page 364 at para 692. The essential thing to consider is that the gift is complete when the donee has accepted it. If that condition is satisfied the donor has no right to revoke the gift. See Dewar v Dewar (1975) 2 All E.R 728 at 72.” per MOHAMMED, JSC (PP. 23 – 24, PARAS. F – B) See also; GIWA – OSAGIE v GIWA – OSAGIE & ANOR (2009) LPELR – 4533 (CA); ISIJOLA v OLUSOGA (2015) LPELR – 41788 (CA); ABUBAKAR GABDO v ABUBAKAR USMAN (2015) LPELR – 25678 (CA). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

POSITION OF THE LAW ON HOW TO PROVE A GIFT OF PROPERTY INTER VIVOS

… this Court in BASHIRU DAVIES v NOSIRU AYINLA RAHMAN – DAVIES & ANOR;”…there was no clear – cut evidence that the alleged gift of the property was made in the presence of witnesses to make it a good/perfect and valid gift vide the cases of Ayinke v Ibidunni (1959) SCNLR 666 at 669, Orido v Akinlolu (2012) 9 NWLR (Pt. 1305) 370 at 387 to the effect that to prove a gift of property inter – vivos there must be evidence of actual handing over the land or property or declaration of the gift by the owner of the property and its acceptance thereof in the presence of witnesses.” Per IKYEGH, JCA (P. 13, PARAS D – F) See; EMMANUEL ENADEGHE v INNOCENT EWEKA (2014) LPELR – 24479 (CA). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

EFFECT OF EVIDENCE TENDERED IN SUPPORT OF UNPLEADED FACTS

In MAI – KIRI v YAHAYA (2018) LPELR – 46595 (CA), this Court held on the effect of leading evidence on facts not pleaded; “…It is an elementary law of pleadings that evidence which is not founded in any pleaded fact goes to no issue and lacks the foundation to rest upon. It is like fetching water into a bottomless container and expect to find water in the container. It is an exercise in futility. Put in a legal maxim “ex nihilo nihil fit”, from nothing comes nothing. It is like an attempt to place something on nothing and expect it to stand. Obviously, it cannot stand, it will collapse and crumble to pieces. See UAC V MACFOY (1962) A- C 152….Evidence at variance with pleadings goes to no issue and is of no assistance to the party. Not only that, such evidence will not be allowed as parties are bound by their pleadings and must maintain a consistent position between their case at pleadings and at trial. Evidence must match the pleadings and any evidence either adduced by the party or elicited through cross – examination mast align with the party’s pleadings otherwise such evidence must be disregarded. Belgore JSC, as he then was in the case of BAMGBOYE v OLUSOGA (1996) 4 SCNJ succinctly stated the law that a party should not, after filing a suit, change the nature of his action and evidence to support it. Similarly, the law was re —echoed by Onnoghen JSC as he then was in AKOMOLAFE v GUARDIAN PRESS (LTD) PRINTERS (SUPRA) that evidence elicited under cross — examination must be on facts pleaded by the party concerned, for it to be relevant to the determination of the question/issue in controversy between the parties.” per WAMBAI, JCA (PP. 28 – 29, PARAS C – D) See also;FATOYINBO & ORS v SULEIMON & ORS (2015) LPELR – 24557 (CA); BASSEY v VITAMALT PLC (2017) LPELR – 42545 (CA); NA – LAMAMA v SUKOLA (2015) LPELR – 26005 (CA). PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

WHETHER COURTS HAVE PREROGATIVE TO ADMIT AND ASCRIBE PROBATIVE VALUE TO THE EVIDENCE ADDUCED BEFORE IT

It is a principle of law that a Court is imbedded with the prerogative to admit and ascribe probative value to the evidence adduced before it; NJOKU v REGISTERED TRUSTEES C.H.G.F (SUPRA); AMADI v NWOSU (SUPRA); Section 12 (a) of the Evidence Act, 2011. PER ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is appeal stems from the judgment of the Edo State High Court, Ekpoma Division per HONOURABLE JUSTICE D. I OKUNGBOWA in Suit No. HEK/11/2013 delivered on 5th October, 2015 wherein judgment was entered in favour of the Claimant (Respondent).

FACTS OF THE CASE
The Respondent is the first son of Pa. Aigbokhaebo Ehizoyanyan who lived at Uwen – Ogogo Quarters, Egbekhuele in Emaudo village, Ekpoma, and had three wives and 12 children before his demise in the month of September, 1987. In the year 2006, the Respondent performed the traditional final burial rites of his father which entitles him according to the Esan/Ekpoma Native Laws and Customs to inherit all his father’s properties.

The Respondent and other members of the Aigbokhaebho Ehizoyanyan family, after performing his father’s final burial rites of passage and resolution of the distracting trespass by the Ukeke people on an inspection visit was surprised to discover survey beacons buried in strategic locations parts of the land. Investigation revealed that it was the 1st

Appellant who is the younger of the Respondent from the same brother who sold the surveyed portion to the 2nd Appellant.

After a family meeting of the Aigbokhaebho Ehizoyanyan family, it was unanimously prevailed on the 1st Appellant to rescind the sale of the land was not his to sell and immediately return whatever amount of money he collected from the 2nd Appellant to him. He refused and strangely insisted that the portion sold by him belonged to him.

Completely disregarding the protests of the Aigbokhaebho Ehizoyanyan family, the Appellant commenced rapid sale of the land in dispute to unsuspecting third parties who started to erect buildings.

The Respondent therefore proceeded to institute the action at the lower Court and sought the following reliefs;
1. A declaration that I am the owner and therefore the person entitled to apply for and be granted a certificate of occupancy over that piece or parcel of land measuring 403 feet by 165 feet by 432 feet by 190 feet (approximately 4,664. 87 Square Metres) lying at the back of Mount Carmel Secondary School, along Davison Street of Uwe — Emaudo at Obhlelekho Quarters in Emaudo

village, Ekpoma.
2. An order of this Honourable Court setting aside the purported sale of the above described land by the 1st Defendant.
3. An Order of this Honourable Court on the 2nd Defendant, his agents and/or privies to vacate the said land and give over possession to the Claimant.
4. An order of perpetual injunction restraining the Defendants, their agents, servants and/or privies from further trespassing on the said land.
5. General damages of Ten Million Naira (N10M) jointly and severally against the Defendants for their acts of trespass on the said land.

The lower Court granted the claims of the Respondent/Claimant and entered judgment in his favour.

Aggrieved by the decision of the lower Court, the Appellants filed their Amended Notice of appeal, brief of argument on the 21st December 2017 but deemed on 24th April, 2018 and a Reply on 17th May, 2018 settled by Prof A. O. O. Ekpu, FCIArb. B. F. Job Esq., O. C Onehnidebawo, Esq of A. O. O. EKPU & CO. The following issues were formulated for determination;
I. Whether the lower Court was right when it upheld the evidence put forward by the Respondent despite

yawning gaps, conflict and inconsistencies inherent in the Respondents’ pleadings and evidence as to the identity and/or size of the land in dispute
II. Whether the Lower Court was justified in rejecting the Appellants’ evidence of gift inter vivos when there was no pleading by the Respondent to contradict the Appellants’ case on the issue.
III. Whether the trial Court correctly evaluated the evidence before it.

In accordance to the Rules of this Court, the Respondent filed his brief of argument on 24th April, 2018 and was settled by F. O. Ebadan, Esq. of F. O. EBADAN, and adopts the issues formulated by the Appellants.

APPELLANTS’ SUBMISSIONS
On issue 1, Counsel submits that it is trite law that a party who claims title to land has the burden duty of pleading and leading credible evidence as to the identity and size of the land which he claims. That the Respondent failed before the lower Court to discharge this burden duty imposed on him by law, his pleadings and evidence are replete with terrible inconsistencies as to size or description of the land he claims and the lower Court ought to have refused his claim.

NWANKPU v EWULU (1995) 7 NWLR (PT. 407) 267 AT 296 PARA C; ALIZE v UMARU (2002) 14 NWLR (PT. 767) 369 AT 389; ADDAH v UBANDAWAKI (2015) 7 NWLR (PT. 1458) 325 AT 348 PARAS D – F; DANSOL ORG. LIMITED v N. T. C. LIMITED (2001) FWLR (PT. 59) 1267 AT 1280 PARAS C – D; AYUYA v YONRIN (2011) 10 NWLR (PT. 1254) 135 were cited in aid.

Counsel submits that from the pleadings and evidence of the Claimant stated that the land is at the back of Mount Carmel School, no evidence was led to show how proximate of the land is to Mount Carmel School. Exhibits A and A1 tendered by the Claimant described the same land as being adjacent to Mount Carmel School and didn’t attach a survey plan.

It is the submission of the Appellants’ Counsel that it is elementary law that a party who seeks declarative reliefs must lead credible evidence to secure same and must succeed on the strength of his case, not on the weakness of the defendant’s case. ONOVO v MBA (2014) 14 NWLR (PT. 1427) 391 AT 414 – 442; AIYEOLA v PEDRO (2014) 1 NWLR (PT. 1424) 409 AT 44 PARAS C – E; DUMEZ (NIG) LTD v NWAKHOBA (2008) 18 NWLR (PT. 1119) 361 AT 373 were relied on.

On issue 2, the Appellants submit that

the trial Court was not justified in rejecting the 1st Appellant’s evidence of a gift of the land by his father in his life time. That the 1st Appellant led sufficient evidence of the gift, which was not challenged or contradicted by the Respondent.

Citing Order 15 Rule 5 of the Edo State High Court (Civil Procedure), the Appellants submit that the law is that where a Defendant raises a new issue in his defence, the Plaintiff is under a duty to file a reply to answer the issue so raised. Failure to do so would amount to an admission of the new fact by the Plaintiff. That to the paragraphs 5, 6 21, 24, 28, 32, 38 and 39 of the Appellants/Defendants’ statement of defence, no denial of any kind, whether general or specific, was offered by the Respondent. DARMA v BATGARAWA (2002) 17 NWLR (PT. 796) 243; A.G ABIA STATE v A.G FEDERATION & ORS (2005) 12 NWLR (PT. 940) 452; IWUOHA v NIPOST (2003) 8 NWLR (PT. 822) 308, 341; OGOLO v FUBARA (2003) 11 NWLR (PT. 831) 231, 265 — 266 were referenced in aid.

Counsel submits that the failure of the Respondent to file a reply to answer the 1st Defendant’s averment of a gift of the land inter vivos was fatal to his

case and the averment was deemed admitted and the Appellants had no further duty to prove the averment.

On issue 3, it is submission of the Appellants that the trial Court failed in its duty to carry out a proper evaluation of the evidence before it, as result the Appellants suffered a miscarriage of justice.

That the Respondent and his witnesses did not present themselves as witnesses of truth and their evidence was riddled with inconsistencies and contradictions that they did not deserve to be given credence.

The Appellants contend that the finding of the trial Court that the 1st Appellant’s use of the land in dispute was in his right as a family member and that such use cannot ripen into ownership. That the law is well settled that Counsel’s address cannot take the place of evidence, there was no pleading or evidence that the 1st Appellant used the land as family property neither was there evidence that the land in dispute was ever the subject of family ownership.

In conclusion, Counsel urges this Court to allow this appeal and set aside the lower Court’s decision.

RESPONDENT’S SUBMISSIONS
The Respondent on issue 1

submits that contrary to the contentions of the Appellants, there were no yawning gaps, conflict and inconsistencies inherent in either the pleadings or the evidence led in support of the averments contained in the pleadings regarding the identity of the land in dispute. That in the joint statement of defence filed by the Appellants, no issue of the identity of the land in dispute was raised. Therefore, issues were not joined by the parties with regard to the identity of the land in dispute. EGBE v ALHAJI & 2 ORS (1990) 1 NWLR (PT. 128) 546; Black’s Law Dictionary, 9th Edition at page 907 were cited in reference.

The Respondent further submits that it has been settled however that where the land in dispute is easily identifiable and identified by the parties, a plan is not necessary.

Citing NWOKIDO v OKANU (2010) AFWLR (PT. 522) 1633 1656, PARAS F – D, 1657, Lines 20 – 27; 1 -2 of the judgment at pages 154 – 155 of the Record, the Respondent submits that contrary to the opinion of the Appellants, the lower Court properly and adequately considered the issue of the identity of the land in dispute. That the Appellants had any doubts or

misgivings about the size, features, description and identity of the land in dispute, they ought to have applied to the lower Court to order the Respondent to provide detailed particulars but they failed to avail themselves of the benefit and chance provided in Order 15 Rule 4 of the Edo State High Court (Civil Procedure) Rules, 2012.

It is the contention of the Respondent that a visit to locus in quo becomes necessary only when there is conflict in evidence as to the existence or otherwise of something material to the case which a visit will resolve. That in this case there was no conflicting evidence as to the identity of the land in dispute which a visit by the learned trial Judge would have been resolved.

On issue 2, the Respondent submits that the onus of proving the evidence of traditional gift inter vivos laid on him and he did not discharge it.

Counsel submits on the contention of the Appellants that the Respondent did not counter the pleading in the statement, that the Respondent did not necessarily have to file a reply to the claim because in paragraphs 28 and 32 of his statement of claim, he averred that the 1st Appellant had no

right whatsoever in the land in dispute as to warrant his alienation nor did he inherit or get it as a gift.

Counsel further submits that a proper gift inter vivos more so, when it is part of a larger portion cannot be vague. There is no shred of independent oral evidence to prove the gift inter vivos; ENADEGHE v EWEKA (2014) LPELR – 24479 (CA) PP. 21 – 22, PARA E was cited. That the Appellant did not discharge the onus placed squarely on him to prove that the land in dispute was given to him as a gift inter vivos in accordance with the stipulations of Section 135 of the Evidence Act, 2011 by giving evidence of the witnesses who witnessed the handover of the land and when it was handed over.

On issue 3, Counsel submits that the Respondent and his witnesses gave cogent, compelling and credible evidence which the lower Court found worthy of its exercise of probative value and that events such as the date of death of the Respondent’s father; date of retirement of the PW 1 are events that occurred long ago and on account of lapses in human memory.

Counsel contends that the address of counsel is to sum up the evidence of his witnesses and invite

the Court to consider and apply the law to it, which was what the Respondent’s Counsel did at the lower Court and that could not have amounted to him adducing evidence on behalf of the Respondent. That the case and claim of the Appellants that the land in dispute was a traditional gift inter vivos to the 1st Appellant fell flat the trial in the absence of proof. DIBIAMAKA v OSAKWE (1989) NWLR (PT. 107) 101 @ 113 – 114; NJOKU v REGISTERED TRUSTEES C.H.G.F (2006) 18 NWLR (PT. 1101) 29; AMADI v NWOSU (1992) 5 NWLR (PT. 241) 273 were cited in submitting that the evidence to establish an assertion in Court must be such that is credible, valuable and quality in order to be of probative essence.

It is the further contention of the Respondent that where root of title is pleaded such as grant, sale or conquest, that root must be established first and any consequential acts can be regarded as acts of ownership, but where the title pleaded has not be proved, then the acts will become acts of trespass: OBA ELEGUSHI & ORS v OSENI & ORS (2005) 14 NWLR (PT. 945) 348; REGISTERED TRUSTEES OF THE DIOCESE OF ABA v HELEN NKUME (2002) 1 SC 19 @ 28; AKINLEMIBOLA v COP

(1976) LPELR – 350, PAGES 20 — 21 were cited in aid.

That the lower Court was right in holding that the use of the land in dispute for farming purpose by the 1st Appellant cannot ripen into ownership, as it is not permissible to support a non-existent root of title with acts of possession. DABO v ALHAJI ABDULLAHI (2005) A FWLR (PT. 255) 1039 @ 1057 SC.

APPELLANTS’ REPLY
The Appellants in reply, submit that it is the burden duty of a claimant who seeks declaration of title to the land to prove clearly the identity of the land over which he claims. On the issue of non — joinder of issues by the parties over the gift of the land to the Defendant. That from paragraph 28 of the Respondent’s written deposition on oath, there is nothing at all in this averment that answers or denies the 1st Defendant’s claim that his father in his lifetime gave him the land in dispute. While in paragraph 32 was where the Respondent referenced the gift, the deposition can only be relevant if it is sustained by pleadings. The reference in paragraph 32 is not admissible evidence and should be expunged; DARMA v BATAGARAWA (2002) 17 NWLR (PT. 76) 243.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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RESOLUTION
The parties are at ad idem on the issues for determination therefore, the three issues raised by the Appellants would be adopted in resolving this appeal.

ISSUE 1
It is a trite principle of law that there are five ways of proving ownership of land as enunciated in the infamous case of IDUNDUN v OKUMAGBA (1976) LPELR – 1431 (SC), to wit;
ii. By traditional evidence
ii. By production of duly authenticated documents of title
iii. By acts of ownership extending over a period of time
iv. By acts of long possession and enjoyment of land
v. By proof of possession of connected or adjacent land.
See;ILIYA & ANOR v LAMU & ANOR (2019) LPELR 47048 (CA) where it was held thus
“Since 1976 when Idundun vs. Okumagba was decided by the Supreme Court, the Courts have held that title to land can be established by traditional evidence; (2) Production of documents of title duly authenticated in the sense that their due execution must be proved; (3) By positive acts of ownership extending over a sufficient length of time (4) By acts of long possession and enjoyment of the land; (5) By Proof of

possession of connected or adjacent land in circumstances rendering it probable that the owner of the land in dispute. The law is that the establishment of one of the ways enumerated above is sufficient proof of ownership of the land. See Idundun vs. Okumagba (1976) 9 – 10 SC 337, Ayoola vs Odofin (1984) 11 SC 120 and Nkado vs. Obano (1997) 5 NWLR (PT. 503) 31.”
per ABIRIYI, JCA (PP. 19 – 20, PARAS D B).
See also; IDRIS v SEINE (2019) LPELR – 46993 (CA); ARIJE v ARIJE & ORS (2018) LPELR – 44193 (SC); ANAGBADO v FARUK (2018) LPELR – 44909 (SC); OKPRUBIA & ORS v OKUMOOKU & ORS (2019) LPELR – 47120 (CA).

The Respondent/Claimant in paragraphs 3, 7, 8, 10 – 13 of his statement of claim averred thus;
“3. The Claimant’s father was called Aigbokhaebho Ehizoyanyan and he deforested some lands in Obhiolekho Quarters in Emaudo village in Ekpoma of which the land in dispute forms a part.
7. Claimant avers that his father (Aigbokhaebho) deforested the land in dispute about 73 years ago and died in September 1987 and was survived by 12 children.
8. claimant avers that he performed the traditional burial

ceremony for his father in accordance with the Esan/Ekpoma Native Laws and Custom in 2006 upon which he inherited his father’s estate inclusive of the land in dispute in accordance with the said custom.
11. That Pa. Ighalo Ehizoyanyan is now 88 years old and was one of those who assited my father as a younger brother to deforest the land in dispute.
12. That the land in dispute is situate at the back of Mount Carmel Secondary School in Emaudo village, along Davison Street off Uwe-Emaudo in Emaudo village, Ekpoma.
13. Claimant avers that in accordance with the Esan/Ekpoma Native Laws and Custom, when a man dies and his eldest surviving son perform the traditional burial rites for him in accordance with the said custom, he inherits his father’s assets and liabilities/estate.
See pages 3 — 4 of the Record.

The Respondent/Claimant from the above relied on traditional history.

Furthermore, the Appellants/Defendants in their Joint Statement of defence admitted and conceded to the following facts; 1. That the Respondent/Claimant is the eldest surviving son of their father who deforested the land; 2. That he performed

the final burial of their late father; 3. That the above facts entitle the Respondent/Claimant to inherit their father’s assets and liabilities.

circumstance, is usually one of dismissal of the claim. See Amata v. Modekwe (1954) 14 WACA 580; Alade v Dina (1943) 17 NLR 32; Epi & Anor v. Aigbedion (1975) 1 NMLR 31; (1973) 5 UILR. (PT. 11) 157; (1972) 10 S. C 53; and Ugbo v. Nwokeke 6 ENLR 106.”
per OGBUAGU, JSC (PP. 9 – 10, PARAS F – B)
See also; MRS GLADY’S EZENWERE v CHIEF K. K. OGUAMANAM (2019) LPELR – 47036 (CA); KAZE v ABOK (2018) LPELR – 46322 (CA); OSEMEIKHIAN v EDIONWELE & ORS (2016) LPELR – 40499 (CA).

its location. See NWOKIDU v OKANU (SUPRA); AYUYA v YONRIN (2011) 10 NWLR (PT. 1254) P. 135; KANO v MAI KAJI (2011) 7 NWLR (PT. 1275) P. 139 AND OLOKUNLADE v ADEMILOYO (2011) 15 NWLR (PT. 1269) P. 72, per TSAMMANI, JCA (PP. 48 – 49, PARAS, E – A)

See also: ONUBE v ASUAKOR & ORS (2019) LPELR – 47231 (CA); BABATOLA v ADEWUMI (2011) LPELR – 3945 (CA); ATUCHUKWU v ADINDU (2011) LPELR – 3821 (CA).
It is also a principle of law that where the parties know the identity of the land in dispute, it is unnecessary for the Claimant to identify it.
In ATANDA v ILIASU (2012) LPELR – 19662 (SC), the apex Court held on whether proof of identity is required where the identity of the land in dispute is known to the parties thus;
“Generally, a Plaintiff’s claim for declaration of title to land and/or injunction pursuant to claim for damages consequent upon trespass by the Defendant succeeds only where the identity of the land in respect of which the reliefs are sought is certain. However, where the identity of the land is not an issue in the sense that parties know exactly the identity of the land, the subject — matter of the dispute between

them, the requirement that the plaintiff and/or parties prove(s) the identity of the land ceases to be a necessity. See Buraimoh v Bamgbose (1989) 3 NWLR (PT. 109) 42 352 SC; Okonkwo v Adigwu (1985) 1 NWLR (1985) 1 NWLR (pt. 4) 694. Maberi v Alade (1987) 2 NWLR (Pt. 55) 101.”
per MUSA DATTIJO MUHAMMAD.
Also, KYARI v ALKALI & ORS (2001) LPELR – 1728 (SC), where it was held thus;
“…where the identity of the land in dispute is not in issue between the parties, no onus, naturally, lies on a claimant for declaration of title to such land to prove the said identity as that fact is not an issue for determination between the parties in the suit.”
per ANTHONY IKECHUKWU IGUH, JSC (PP 21 – 21, PARAS D – E),
See also; ANAGBADO v FARUK (2018) LPELR — 44909 (SC); SHETTIMA v GHULUZE (2018) LPELR – 46316 (CA); JAGABA & ORS v UMAR (2016) LPELR – 40466 (CA); ADUGBO v IBE (2018) LPELR – 46138 (CA).

From the pleadings of the Respondent/Claimant earlier reproduced, he testified that the land in dispute was deforested by his father and remained the property of his father until his father died in 1987 and he is the eldest

surviving son of his late father. That in 2006, he performed the final burial ceremony for his father and by Esan law and customs, he is entitled to inherit his entire father’s assets and liabilities. These pleadings were admitted by the Appellants.

Particularly in paragraphs 12, 13, 14, 19, 20 and 21 of the Appellants/Defendants’ joint statement of defence state that;
“12. That throughout this period, the 1st Defendant was farming and cultivating the crops on the land in dispute without any challenge or opposition from anybody including the late father’s brothers.
13. That because it was the 1st Defendant who had knowledge of the extent of the dimension of his father’s lands, he was able to protect same against the land speculations, trespassers and invader. That in one of such episode he was taken before the whole of Emaudo elders councils by the Ikeke Community of the same Emaudo and the palace of Onogie of Ekpoma.
14. That it was the 1st Defendant that stood for the Ehizoyanyan’s family and protected the vast land from Ukeke Community. That the 1st Defendant even had to protect the land including the area in dispute.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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This is the reason the Claimant refused to share any landed property to his half brothers and not because of any land dispute with Ukeke People. In fact, throughout the land dispute with Ukeke Community, the Claimant never appeared once to show solidarity with the 1st Defendant. The 1st Defendant did it alone and handed same land except the area in dispute after the burial.
20. The 1st Defendant avers that he was the one that alienated part of the land in dispute to 2nd Defendant.
21. That he alienated same to him because the 1st Defendant is the proper person to do so as he got the gist of land from his late father before his death. And that nobody has ever disputed that portion or parcel of land with him.”
See pages 50 — 51 of the Record.

There was nothing before the lower Court and before this Court indicating that the identity of the land in dispute was in issue or unknown by the parties.

I answer the issue in the affirmative and resolve this issue in favour of the Respondent.

ISSUE 2
The Appellants solely had the burden of proving that the land is no longer part of their father’s estate which the

claimant can inherit by virtue of the gift inter-vivos.

Firstly, it is important that I touch on what a gift inter vivos is and what it entails.

A gift inter vivos has defined in ANYAEGBUNAM v OSAKA & ORS (2000) LPELR – 508 (SC) thus
“A gift inter – vivos is an act whereby something is voluntarily transferred from the true possessor to another person with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver. See Halsbury’s Laws of England. 3rd Edition, Vol. 18, page 364 at para 692. The essential thing to consider is that the gift is complete when the donee has accepted it. If that condition is satisfied the donor has no right to revoke the gift. See Dewar v Dewar (1975) 2 All E.R 728 at 72.”
per MOHAMMED, JSC (PP. 23 – 24, PARAS. F – B)
See also; GIWA – OSAGIE v GIWA – OSAGIE & ANOR (2009) LPELR – 4533 (CA); ISIJOLA v OLUSOGA (2015) LPELR – 41788 (CA); ABUBAKAR GABDO v ABUBAKAR USMAN (2015) LPELR – 25678 (CA).

On how to prove a gift inter vivos, this Court in BASHIRU DAVIES v NOSIRU AYINLA RAHMAN – DAVIES & ANOR;

“…there was no clear – cut evidence that the alleged gift of the property was made in the presence of witnesses to make it a good/perfect and valid gift vide the cases of Ayinke v Ibidunni (1959) SCNLR 666 at 669, Orido v Akinlolu (2012) 9 NWLR (Pt. 1305) 370 at 387 to the effect that to prove a gift of property inter – vivos there must be evidence of actual handing over the land or property or declaration of the gift by the owner of the property and its acceptance thereof in the presence of witnesses.”
Per IKYEGH, JCA (P. 13, PARAS D – F)
See; EMMANUEL ENADEGHE v INNOCENT EWEKA (2014) LPELR – 24479 (CA).

The Appellants/Defendants in their joint statement of defence averred thus;
3. The 1st Defendant states that all his young and adult life he has spent it Emaudo to cater for his father and mother as the Claimant embarked on his educational pursuit.
4. That their late father had a very vast land of more than 10 acres of land. That during his life time, he planted cocoa, rubber trees and palm trees on most of the land.
5. That the 1st Defendant states as the only male child who was

tending to this farms with his father during his lifetime. He decided to compensate him. Because of the fact that the 1st Defendant is not the eldest surviving son.
6. That the late father before his death allocated the land in dispute to him as a gift inter vivous in accordance to the Esan Native Law and Custom of Emaudo people.
12. That throughout this period the 1st Defendant was farming and cultivating the crops on the land in dispute without any challenge or opposition from anybody including the late father’s brother.
38. That the 1st Defendant knows his position in the immediate family of Ehizuyanyan and had not bothered his brother to allocate any of the vast land to him. But only insisted that he is not ready to vacate the area given to him as gift inter vivous in accordance with tradition of Esan people by his father
See pages 49, 50 & 53 of the Record.

The Appellants however failed to plead or lead any evidence in proof of his claim that would grant him ownership of the portion of land.

The evidence of DW2 and DW3 under cross – examination that one Pa. Oseghale (now late) was the head of the family at

the time of the purported gift or that he was aware of the gift is not pleaded and goes to no issue.

with the party’s pleadings otherwise such evidence must be disregarded. Belgore JSC, as he then was in the case of BAMGBOYE v OLUSOGA (1996) 4 SCNJ succinctly stated the law that a party should not, after filing a suit, change the nature of his action and evidence to support it. Similarly, the law was re —echoed by Onnoghen JSC as he then was in AKOMOLAFE v GUARDIAN PRESS (LTD) PRINTERS (SUPRA) that evidence elicited under cross — examination must be on facts pleaded by the party concerned, for it to be relevant to the determination of the question/issue in controversy between the parties.”
per WAMBAI, JCA (PP. 28 – 29, PARAS C – D)
See also;FATOYINBO & ORS v SULEIMON & ORS (2015) LPELR – 24557 (CA); BASSEY v VITAMALT PLC (2017) LPELR – 42545 (CA); NA – LAMAMA v SUKOLA (2015) LPELR – 26005 (CA).

Furthermore, they stated that Pa. Oseghale mentioned he being a witness to the gift of the land inter vivos in a certain meeting offends the provisions of Sections 37 & 38 of the Evidence Act, 2011 and falls within the ambit of hearsay evidence.

The Appellants did not indicate any parties or persons present, the place,

time or date his father supposedly gave him the portion of land as a gift inter-vivos therefore the evidence of DW 2 and DW3 goes to no issue. Pa Oseghale who was mentioned is late, the dead do not speak! No other supposed witness present were called, no older/senior members of the family was called upon.

Flowing from the above, the Appellants/Defendants utterly failed to discharge the duty/burden of proving that the land was given as a gift inter vivos.

I answer this issue in the affirmative and resolve it against the Appellants.

ISSUE 3
It is a principle of law that a Court is imbedded with the prerogative to admit and ascribe probative value to the evidence adduced before it; NJOKU v REGISTERED TRUSTEES C.H.G.F (SUPRA); AMADI v NWOSU (SUPRA); Section 12 (a) of the Evidence Act, 2011.

The Appellants raised the contention of when PW 1 retired and whether the half-brothers of the Respondent and the 1st Appellant participated in the final burial rites of their father. These issues are unnecessary and vexatious to say the least.

The weight of evidence as pleaded and tendered by the parties when placed before the imaginary

scale of justice, tilts in favour of the Respondent. The lower Court considered the evidence before him as to their value credibility and quality and I find his assessment detailed and impeccable.

Flowing from the above resolutions in this judgment, I resolve this issue against the Appellants.

Having resolved all the issues in the affirmative and in favour of the Respondent, this appeal lacks merit and fails in its entirety. It is accordingly dismissed.

The judgment of the Edo State High Court, Ekpoma Division per HONOURABLE JUSTICE D. I OKUNGBOWA in Suit No. HEK/11/2013 delivered on 15th October, 2015 is hereby affirmed.
Cost of N200,000 is awarded in favour of the Respondent.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother, Obaseki-Adejumo, JCA, which has just been delivered. I agree with the reasoning and conclusion therein which I adopt as mine in finding that the appeal is devoid of merit.

I accordingly dismiss the appeal and abide by the consequential orders made in the lead judgment.

BALKISU BELLO ALIYU, J.C.A.: I was privileged to read in draft, the judgment prepared by my learned brother Abimbola Osarugue Obaseki-Adejumo, JCA that has just been delivered. I agree with the reasoning and the conclusion reached therein that the appeal lacks merit and should be dismissed. I too dismiss it and I affirm the judgment of the Edo State High Court sitting in Ekpoma, delivered on the 15th October, 2015 in respect of Suit No: HEK/11/2013. I abide by the order of cost made in the lead judgment.

Appearances:

…For Appellant(s)

MRS. R. O OAIHZINWO WITH HIM, S.S.C. EMOZ For Respondent(s)