EKARIKO v. ATSENUWA (2022)

EKARIKO v. ATSENUWA

(2022)LCN/16456(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, May 11, 2022

CA/AS/555/2017

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

SIR DR. VINCENT K. EKARIKO (For Himself And On Behalf Of The Family Of Ojagbighwru Ekariko) APPELANT(S)

And

MR. JOHN ATSENUWA RESPONDENT(S)

RATIO:

FIRST DUTY OF A CLAIMANT IN A CLAIM FOR DECLARATION OF TITLE TO LAND AND INJUNCTION

The first duty of a claimant in a claim for declaration of title to land and injunction is to show the precise area of land to which his claim relates. If he fails in this respect then his claim must fail. See Kwadzo v. Adjei 10 WACA 216, Okorie v. Udom (1960) 5 FSC 162, Elias v. Omo-Bare (1982) 5 SC 25, and Kolo v. Lawan (2018) 13 NWLR (Pt. 1637) 495. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAND ON HOW THE IDENTITY OF LAND IN DISPUTE

Identity of land in dispute may be established by (a) filing a survey plan drawn to scale reflecting all the features of the land and all its boundaries, or (b) by oral evidence showing all the features of the land with accurate, definite and precise boundaries such that a surveyor presented with the record can produce an accurate plan of such land or (c) where the parties know the identity of the land and its boundaries and the Court is satisfied about the knowledge. See Awote v. Owodunni (No. 2) (1987) 12 NWLR (Pt. 57) 306 and Aiyeola v. Pedro (2014) 13 NWLR (Pt. 1424) 409. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON DISPUTE TO THE IDENTITY OF A LAND

The law as I have already stated is that to make a plaintiff’s survey plan an issue, the defendant should be clear and specific on the parts in controversy-is it the area, size, location, boundaries or locus in quibus of acts of possession? See Osuji v. Ogualaji (2002) 16 NWLR (Pt. 792) 136, 152. JOSEPH EYO EKANEM, J.C.A.

WHETHER ERROR OF DESCRIPTION IS OF NO MOMENT IN THE CIRCUMSTANCE THAT THE PARTIES KNOW THE LAND.

In the case of Alikor v. Ogwo (2019) 15 NWLR (Pt. 1695) 331, 360 also reported in (2019) ALL FWLR (Pt. 1018) 768) Abba-Aji, JSC, stated that:
“Mis-description of the disputed land is insignificant where identification is possible.” JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON A SURVEY PLAN WHEN PLEADED

….the law is that a survey plan when pleaded forms part of the pleadings and so the Court can utilize its content to resolve any issue before it. See Eigbejale v. Oke (1996) LRCN 533, 553 (also reported in (1996) LPELR-1057 (SC) 24) and Adelusola v. Akinde (2004) 12 NWLR (Pt. 887) 295, 313. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON BURDEN OF PROOF IN A CASE FOR DECLARATION OF TITLE TO LAND

The burden of proof in a case for declaration of title to land lies on the plaintiff to establish his entitlement to the declaration on the strength of his case and not on the weakness of the defendant’s case although the weakness of the defence may in some cases assist the case of the plaintiff. See Kodilinye v. Odu (1935) 2 WACA 336, Bello v. Eweka (1981) 1 SC 106 and Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353. JOSEPH EYO EKANEM, J.C.A.

METHOD OF PROVING A TITLE TO LAND

There are five methods of proof of title, namely;
1. By traditional history
2. By production of document/s of title which must be duly authenticated and registered.
3. By acts of ownership extending over a sufficient length of time and positive and numerous enough to warrant the inference that the person is the true owner.
4. Acts of long possession and enjoyment of the land which may be prima facie evidence of ownership of the particular parcel of land.
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.
See Idundun v. Okumagba (1976) NMLR 200, Piaro v. Tenalo (1976) 12 SC 31 and Mogaji v. Cadbury (Nig.) Ltd (1985) 2 NWLR (Pt. 7) 393. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW WHERE A PARTY RELIES ON DOCUMENT/S OF TITLE TO ESTABLISH HIS TITLE TO LAND

Where a party relies on document/s of title to establish his title, the Court is called upon to ask a number of questions including:
1. Is the document genuine?
2. Is it duly executed, stamped and registered?
3. Had the grantor authority and capacity to make the grant?
4. Had the grantor what he purported to grant?
5. Had the document the effect claimed by the holder?
See Dabo v. Abdullahi (2005) 125 LRCN 742, 776 and Ayorinde v. Kuforiji (2007) 4 NWLR (Pt. 1024) 341, 363. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW WHERE A PARTY RELIES ON DOCUMENT/S OF TITLE TO ESTABLISH HIS TITLE TO LAND

POSITION OF LAW WHERE EVIDENCE OF TRADITIONAL HISTORY IS CONFLICTING

Where there is an internal conflict in the traditional history of a party or where evidence of traditional history is conflicting such traditional history is to be treated as unreliable. See Olodo v. Josiah (2010) 18 NWLR (Pt. 1225) 653, 673 and Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362, 398. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON THE BURDEN OF PROOF ON THE COUNTER-CLAIMANT FOR DECLARATION OF TITLE TO LAND

….a defendant who counter-claims for declaration of title to land in dispute has the same burden as the plaintiff in the main suit. Indeed, even in a case where the case of the plaintiff fails, the burden on the counter-claimant is not lessened by that fact. He still has to prove his entitlement to his claim on the balance of probabilities. JOSEPH EYO EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Delta State sitting in the Sapele Judicial Division (the trial Court) delivered on 24th July, 2017 in Suit No. S/78/2015 by Harriman, J. In the judgment, the trial Court found for the respondent (as claimant) against the appellant (as defendant), granting him, inter alia, a declaration that he is entitled to the possession of all the two parcels of land measuring a total area of 3058. 137 square meters sandwiched between Reclamation Road and Commercial Avenue, Sapele, described and verged red in his litigation Survey Plan No. MOO/DT/6D/2016. The trial Court held that the counter-claim of the appellant had failed.

Dissatisfied with the decision, the appellant filed an appeal to this Court by the means of a notice of appeal that was filed on 12th September, 2017. With the leave of this Court, the notice of appeal was amended. The amended notice of appeal bears four grounds of appeal.

The facts of the case leading to this appeal are that the respondent claimed that he purchased two separate but contiguous parcels of land from the family of the late Evwida, who he said deforested the land, vide separate deeds of conveyance dated 19th day of October, 1975. He registered the two deeds in the Lands Registry in the office at Benin now Asaba. He was put in possession of the land by his vendors. The appellant trespassed on the land consequent upon which the respondent took out a writ of summons against the appellant at the trial Court. In the 2nd amended statement of claim, the respondent claimed the following reliefs against the appellant:
A. A Declaration that the Claimant is entitled to the possession of all that two no. coterminous parcels of land measuring total area of 3058.137 square meters sandwiched between Reclamation Road and Commercial Avenue, Sapele described and verged red in claimant’s litigation Survey Plan No. MOO/DT/6D/2016.
B. A Declaration that the breaking, entering of the claimant’s crops on the claimant’s 2 no. coterminous parcels of land measuring total area of 3058.137 square meters sandwiched between Reclamation Road and Commercial Avenue, Sapele is unlawful and an act of trespass.
C. An order of injunction restraining the Defendant, his servants and/or agents from committing further acts of trespass to the said parcels.”

The appellant filed a statement of defence/counter-claim in the following terms:
i. A declaration that the defendant’s family are persons entitled to a statutory right of occupancy under the Land Use Act, 1978 over the piece or parcel of land measuring 46.75m x 66.65 m x 42.75m x 69.35m (3019. 68 square meters in area, i.e. 0.302 Hectares), which forms part of Ojagbighwru Ekariko’s expanse of land, lying situate and/or sandwiched between Reclamation Road, and Commercial Avenue, in Sapele Local Government Area, Delta State of Nigeria.
ii. A declaration that the unauthorised entry by the claimant on the defendant’s family portion of land described above and erection and/or planting of beacon pillars around the defendant’s family said piece or parcel of land, without the knowledge, consent and authorization of members of the defendant’s family, is unlawful and amounts to trespass.
iii. An Order directing the claimant to desist from further acts of trespass on the said piece or parcel of land measuring 46.75m x 66.65m x 42.75m x 69.35m (3019. 68 square meters in area, i.e. 0.302 Hectares) which forms part of the defendant’s family expanse of land, forthwith and/or remove all illegal and unauthorized beacons pillars, structures and/or other items deposited thereon by him from the said parcel of land in dispute.
iv. The sum of N5,000,000.00 (Five Million Naira) being general damages for trespass on a portion of the defendant’s family said expanse of land.
v. An Order of perpetual injunction restraining the claimant, his agents, privies and servants, from continuing any further acts of trespass on the said piece or parcel of land measuring 46.73m x 66.65m x42.75m x 69.35m (3019.68 square meters in area, i.e. 0.302 Hectares), which forms part of the defendant’s family expanse of land.

The case of the appellant was that the land in dispute was deforested by his grandfather, Pa. Ekariko and that the land devolved on his (Pa Ekariko’s) grandchildren.

At the trial, the respondent testified through two witnesses and tendered 8 exhibits while the appellant called two witnesses and tendered two exhibits. After taking addresses from counsel, the trial Court, as I have already stated, decided in favour of the respondent.

In the appellant’s brief of argument settled by Jonathan Ekperusi, Esq., the following issues have been identified for the determination of the appeal:
1. Whether the lower Court was right in holding that the land in dispute is well known to both parties and that there was no need for further proof on the identification of the land (Ground 2).
2. Whether the respondent proved his title to the land in dispute. (Grounds 1 and 3).
3. Whether the appellant is not entitled to the grant of the counter-claim (Ground 4)

In the respondent’s brief of argument settled by Oke Odinde, Esq., the following issues have been formulated for the determination of the appeal:
a. Whether the identity of the land was known to both parties.
b. Whether the respondent has placed sufficient material fact before the trial Judge to warrant the trial Judge giving judgment in his favour.
c. Whether trial Judge was right to have dismissed the appellant’s counter-claim.

The two sets of issues are essentially the same and so I shall adopt the issues framed by appellant’s counsel for the determination of the appeal.

ISSUE 1
Whether the lower Court was right in holding that the land in dispute is well known to both parties and that there was no need for further proof on the identification of the land.
Appellant’s counsel submitted that the appellant joined issues with the respondent on the identity of the land in dispute in the claim and counter-claim. He referred to the pleadings of the parties as well as Adenle v. Olude (2003) FWLR (Pt. 157) 1074 and submitted that the burden was on the respondent to prove that the 2 coterminous land each measuring 2192. 64 square yards and 1469. 97 square yards respectively as pleaded by the respondent is the same as the land measuring 3058.137 square meters as claimed in his reliefs. It was counsel’s contention that the respondent did not plead enough facts to show that the 2 parcels of land are the same land in the reliefs. He noted that the land counter-claimed by the appellant measures 3019. 68 square meters or 0.302 hectares and that there was nothing to show that the two parcels of land claimed by the respondent is the same as the land claimed by the appellant.

Counsel observed that there were different survey plans attached to the instruments of grant as claimed by the respondent and then submitted that the identity of the land acquired by the respondent vide the separate instruments of acquisition can only be proved by a comparison of the various plans. He cited and relied on Nnadi v. Okoro (1998) 1 NWLR (Pt. 533) 573 in support of his submission. He contended that a composite plan ought to have been produced by the respondent to show the relative position of land in issue. He added that in proving the identity of land granted by an instrument, the respondent must show that the land given to him in the said instrument is the same as the land in dispute. It was his further contention that, assuming that the respondent’s litigation survey plan explains the identity of the different lands acquired by the respondent, any evidence contained in the respondent’s litigation survey plan purporting to explain how the respondent’s 2 no. coterminous land is the same as the land in paragraph 16 (a) and (b) of the 2nd amended statement of claim is not borne out by the pleadings. He relied on the position of the law that parties are bound by their pleadings and therefore urged the Court to disregard any evidence purporting to explain the connection between the 2 no. parcels of land and the land claimed in respondent’s reliefs.

Still arguing, counsel contended that the evidence of respondent’s surveyor was manifestly contradictory and should be treated with suspicion and his evidence was unhelpful in explaining how the 2 no. parcels of land became the land claimed in the reliefs.

Respondent’s counsel, on his part, stated the trite position of the law that in an action for declaration of title to land, the claimant is duty bound to establish the identity of the land in dispute. He however submitted that from the pleadings and evidence of the appellant, the land is well known to the parties and therefore there was no need for further identification. He further submitted that wrong description of land in dispute is insignificant where identification is possible, placing reliance on Alikor v. Ogwo (2019) ALL FWLR (Pt. 1018) 768. He contended that the use of square yards and square meters did not in any way occasion a miscarriage of justice.

The need to prove the identity of the land however does not arise where the adversary has not put the identity of the land in issue in his statement of defence.

The identity of land is put in issue where the defendant in his statement of defence clearly and specifically disputes the description of the land given in the plaintiff’s pleading or where he specifically disputes the area, location or features on the plan of the plaintiff. See Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208, 220, Udeze v. Orazulike Trading Co. Ltd (2000) 3 NWLR (Pt. 648) 203, 220, Otanma v. Youdubagha (2006) ALL FWLR (Pt. 300) 1579, 1581 and Gbadamosi v. Dairo (2007) 145 LRCN 508, 519.

The question then is was the identity of the land in dispute put in issue in this case? The answer to this question is to be found in the pleadings of the parties. In paragraphs 3 and 4 of the 2nd amended statement of claim, it is pleaded as follows:
“3. The Claimant avers that the subject matter of this case is the Claimant’s 2 no. coterminous land each measuring 2192.64 square yards and 1464.97 square yards respectively sandwiched between Reclamation Road and Commercial Avenue, Sapele.
4. The Claimant avers that the said 2 no. coterminous land are described as CAUSE OF ACTION and VERGED RED in the Claimant’s litigation survey plan No. MOO/DT/6D/2016 of 23rd June, 2016 prepared by Surveyor M.O. OKAH-AVAE, registered surveyor.”

What was the answer of the appellant to the above averments? In paragraphs 2 and 3 of the consequential amended statement of defence/counter-claim, the appellant averred thus:
“2. The Defendant denies the averments contained in paragraphs 1, 4, 5, 6, 7, 8, 9, and 10, of the Amended Statement of Claim.
3. The Defendant in answer to the averments contained in paragraphs 3, 4 and 5 of the Amended Statement of Claim, avers that the Claimant is not entitled to the Statutory Right of Occupancy in and over the piece of land measuring 46.75m x 66.65m x 42.75m x 69.35 (3019.68 square meters in area, i.e. 0.302 Hectares), which the Claimant quoted as measuring 90 ft x 230ft x 90 ft x 230 ft (i.e. 2192 square yards), because the said piece or parcel of land in dispute forms part of an expanse of land originally deforested of its virgin forest by the Defendant’s grandfather PA. EKARIKO, which said expanse of land is situate, lying and/or sandwich between Reclamation Road, and Commercial Avenue, Sapele, in Sapele Local Government, Delta State.”

I cannot see where the appellant put the identity of the land in issue. It is immaterial that both sides used different units of measurements. There is no dispute about the location of the land, the area, the size or features of the land pleaded by the respondent. There is no issue raised about the survey plan of the respondent. The law as I have already stated is that to make a plaintiff’s survey plan an issue, the defendant should be clear and specific on the parts in controversy-is it the area, size, location, boundaries or locus in quibus of acts of possession? See Osuji v. Ogualaji (2002) 16 NWLR (Pt. 792) 136, 152. The case of Adenle v. Olude (2003) supra does not support the case of the appellant as the Supreme Court re-stated the position of the law as to how the identity of land in dispute in a case where there is a litigation survey plan is put in issue. The apex Court found that, just as in this case, the appellant did not put the identity of the land in dispute in issue. I fail to see where and how from the foregoing, the appellant put the identity of the land in issue.

Apart from the above, it is clear that the land in dispute is well known to the parties including the appellant. This is clear from paragraphs 10, 13, 14, 15 and 16 of the consequential amended statement of defence/counter-claim. In the said paragraphs, the appellant made averments about the subject matter of the suit, that his mother farmed on a portion of the land, that his father died and the area of land in dispute was inherited by his children and that he commissioned a surveyor to survey the land in dispute in this suit. What is more, the appellant counter-claimed for a declaration of title to the land of which he gave the dimension in meters. How then can counsel for the appellant seriously and honestly say that the identity of the land was in issue and that the trial Court erred in holding that the land in dispute is well known to the parties? The trial Court was right and appellant’s counsel is wrong, with due respect to him.
In the case of Odofin v. Oni (2001) 1 SC (Pt. 1) 129, 136, the Supreme Court stated as follows:
“…where both parties are familiar with or know the land in dispute, the question of its identity or certainty will cease to perplex the trial Court so also the appellate Court and neither party will be allowed to place a cog in the wheel of justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land that is well known to both parties,”
See also Hanatu v. Amadi (2020) 9 NWLR (Pt. 1728) 115, 131 where Kekere-Ekun, JSC, opined that:
“The law is that where the identity of the land in dispute is well known to the parties, a Court is entitled to infer that the parties know the land so well that its features and boundaries cannot be said to be in doubt.”

Thus, all the contention of appellant’s counsel about the relationship between the two parcels of land pleaded by the respondent as the subject of the deeds of conveyance in his favour and the land claimed in the reliefs and the filing of composite plan is a mere red herring. However, since this Court is a penultimate appellate Court, I shall proceed to consider it.

It was the contention of appellant’s counsel that the respondent did not plead sufficient facts to show that the 2 no. coterminous land measuring 2191.64 square yards and 1409.92 square yards, respectively, are the same as the land measuring 3058.137 square meters as claimed in the reliefs of the respondent as well as land in the counter-claim measuring 3019. 68 square meters. I have already affirmed the trial Court’s finding that the land in dispute is well known to the parties. It follows therefore that the total dimension of the two parcels of land as stated in the reliefs of the respondent was a wrong description and in the circumstance that the parties know the land, that error is of no moment. In the case of Alikor v. Ogwo (2019) 15 NWLR (Pt. 1695) 331, 360 also reported in (2019) ALL FWLR (Pt. 1018) 768) Abba-Aji, JSC, stated that:
“Mis-description of the disputed land is insignificant where identification is possible.”
Again, the above position of the law was earlier adumbrated in Adenle v Olude supra 1086 where Uwaifo, JSC, held to be a misdescription of the difference in number of the plan pleaded by the respondent as being attached to the deed of conveyance in his favour and the number of the plan actually attached to the said deed.

Appellant’s counsel contended that the respondent needed to tender a composite plan to show the relative locations of the various parcels of land he acquired. He relied on Nnadi v. Okoro supra. to buttress his contention. It was his further contention that assuming that the respondent’s litigation survey plan explained the identity of the different parcels of land acquired by the respondent from his vendors, any evidence contained in the said plan purporting to explain how the two parcels of land is the same as the land in the reliefs claimed by the respondent is not borne out of the pleadings and ought to be disregarded.

The case of Nnadi v. Okoro supra relied upon by appellant’s counsel to support his submission that the respondent needed to tender a composite survey plan to show the relative locations of the two parcels of land that he acquired does not apply in the instant case. In that case, there were two different conveyances each with a survey plan in favour of two different persons, namely: the plaintiff and the defendant, and the defendant claimed that the land sold to the plaintiff by their common vendor was not the land claimed by the plaintiff. This is unlike the situation in this matter in which the two conveyances with survey plans were in favour of one and the same person. There is therefore no need for a composite survey plan in the instant matter

As regards the submission on the content of the survey plan not being pleaded, the law is that a survey plan when pleaded forms part of the pleadings and so the Court can utilize its content to resolve any issue before it. See Eigbejale v. Oke (1996) LRCN 533, 553 (also reported in (1996) LPELR-1057 (SC) 24) and Adelusola v. Akinde (2004) 12 NWLR (Pt. 887) 295, 313. Counsel for the appellant was therefore not right in arguing that evidence contained in the plan was not borne out by the pleadings of the respondent.

Furthermore, a Court is entitled to compare plans tendered before it to see the relationship between them. See Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362, 393. The two parcels of land that were conveyed to the respondent are adjacent to each other with beacon stones number JM 7947 and JM 7948 marking the boundary between them. These two beacon stones are clearly reflected on the two plans in the deeds of conveyance in favour of the respondent and the litigation survey plans.

I have compared the survey plans tendered in this matter including the survey plans attached to the deeds of conveyance by which the land in dispute was conveyed to the respondent. In exhibit CL1, respondent’s litigation survey plan, the portion of land in dispute (described as cause of action) is verged brown. The two contiguous parcels of land sold to the respondent are shown thereon to be the land in dispute. The survey stones demarcating the two parcels of land in the litigation survey plan bear the same numbers as the survey stones delineating the parcels of land in the plans attached to the deeds of conveyance in favour of the respondent. They are verged blue and green and are adjacent to each other. They are sandwiched between Commercial Avenue and Reclamation Road as depicted in the survey plans attached to the deeds of conveyance. This roughly corresponds with the area verged red in appellant’s litigation survey plan which shows the land in dispute sandwiched between Commercial Avenue and Reclamation Road with two beacon stones bearing the same numbers with two of the beacon stones in respondent’s exhibit CL1 and the survey plan attached to exhibit CL3, one of the deeds of conveyance in favour of the respondent. No wonder appellant’s counsel sought but in vain to persuade this Court not to consider the content of exhibit CL1.

I see no dispute about the identity of the land in dispute in the claim and counter-claim, and the land conveyed to the respondents. They are the same land.

I therefore enter an affirmative answer to issue 1 and resolve it against the appellant.

ISSUE 2
Whether the respondent proved his title to the land in dispute

Appellant’s counsel submitted that the respondent relied on documents of title, his vendor’s traditional history and acts of possession to ground his title, and that the trial Court wrongly relied on documents of title of the respondent to grant title to him despite the fact that the appellant challenged his (respondent’s) vendor’s title. It was his contention that in the circumstance, the respondent was required to go further to plead and trace the root of title of his grantor or vendor. He posited that though the respondent pleaded facts purporting to show his vendor’s root of title, his evidence in cross-examination completely destroyed his case. He stated that though he traced his vendor’s root of title to Pa Evwida, he admitted in cross-examination that he is not a member of his vendor’s family and that what he said was told to him by his vendor’s family members, which counsel tagged as hear-say. He also referred to the evidence of CW1, respondent’s surveyor, on the root of title and his evidence in cross-examination that he did not know when he said that the area was deforested by Evwida. He argued that failure of respondent to call his vendors or any member of their family to prove their title was fatal to his claim.

Respondent’s counsel referred to the evidence led by him (the respondent) and submitted that he placed sufficient materials before the trial Court to be entitled to his claim but that the evidence led by the appellant was contradictory. He said that the appellant stated that the land was deforested by his grandfather and yet in the same breath testified that the land was deforested by his grandmother and his mother. He noted that the appellant admitted that the features on the land are not as stated in his litigation survey plan. This, he contended, knocked the bottom off appellant’s counter-claim. He contended that evidence of deforestation must not (necessarily) be told by the person who deforested the land as it is a story told from generation to generation.

Having read the pleadings of the respondent, it is clear that he relied on production of documents of title to establish his title to the land. Where a party relies on document/s of title to establish his title, the Court is called upon to ask a number of questions including:
1. Is the document genuine?
2. Is it duly executed, stamped and registered?
3. Had the grantor authority and capacity to make the grant?
4. Had the grantor what he purported to grant?
5. Had the document the effect claimed by the holder?
See Dabo v. Abdullahi (2005) 125 LRCN 742, 776 and Ayorinde v. Kuforiji (2007) 4 NWLR (Pt. 1024) 341, 363.

A party who relies on document of title to prove his title to land need not go beyond the document to prove the title of his grantor. But where his grantor’s title is questioned, the origin of the grantor’s title must also be pleaded and proved. See Alli v. Alesinloye (2000) LPELR–427 (SC), Adole v. Gwar (2008) 11 NWLR (Pt. 1099) 562, 592, Osu v. Nwadialo (2009) 12 NWLR (Pt. 1155) 286, 302 and Edebiri v. Daniel (2009) 8 NWLR (Pt. 1142) 15, 32. The respondent’s grantors’ root of title was questioned and so it behoved him not only to prove his title but also the title of his grantors. The respondent traced the title of his grantors to Pa Evwida. See paragraphs 7, 8, 9, 10 and 11 of the 2nd amended statement of claim. The respondent testified on the root of title of his grantors as CW2. The contention of appellant’s counsel is that the respondent, not being a member of that family, ought to have called his vendors or any member of their family to prove their root of title and that evidence of the CW1 and CW2 thereon was hearsay.
In the case of Alli v. Alesinloye supra. 38 – 39 supra, Iguh, JSC, in his lead judgment, opined thus:
“In my view, evidence of traditional history in land matters which is nothing short of evidence of a historical act transmitted from generation to generation in respect of a family communal land may, in appropriate cases, be given by witnesses who by virtue of their peculiar and special relationship and circumstances and, before them, their ancestors, with the land owning family or community, are in a position and knowledgeable enough to testify on the traditional evidence in question. Such witnesses may include those by virtue of the intimate and age-long close association, interaction and/or relationship from time immemorial between their family or community and those of the land owners in issue, are clearly knowledgeable and in as good a position, if not even better than the land owners, to give cogent and relevant traditional evidence in respect of ownership of such land. Speaking for myself, it would not matter who testifies to a traditional historical fact, so long as he is able adequately to satisfy the Court on the credibility and reliability of means of knowledge together with his suitability and qualification to testify on the tradition in issue. I find it difficult to accept the suggestion of the Court below that evidence of tradition, to be accepted or indeed admissible, must only be given by members of the immediate family or community of the land owners. No authority in support of that proposition has been brought to my knowledge and I myself have been unable to find one. Speaking for myself, I cannot accept that proposition as well founded.”
Uwaifo, JSC, in his contribution found it difficult to contemplate how a stranger to such a family could give acceptable traditional history of the family unless by research effort in which a member of that family who knows the history narrates the same to the stranger. It seems to me that my lord did not say anything too different from what Iguh, JSC, said. See pages 71–72 of the electronic report.
In other words, though it is ideal for a member of the relevant family to give evidence of the traditional history of the family’s ownership of the land in dispute, this does not exclude a person who is not a member of the family from giving such evidence since it is evidence of a historical fact provided that such a person satisfies the Court on his means of knowledge of the history, the credibility and reliability of his means of knowledge, and his qualification to testify on the tradition.
At page 191 of the record, in answer to questions in cross-examination, respondent stated as follows about his means of knowledge of the traditional evidence of the land in dispute;
“It is not true that facts stated in my oaths were heard from other persons. The family members told me. In fact, I have been in Sapele for long. I know who owns land.”
The cross-examiner cannot run away from answers to questions that he asked. Though it may be said that those facts were not pleaded, the answer is that only material facts and not subordinate facts need be pleaded. See Okafor v. UBN Plc (2000) 3 NWLR (Pt. 647) 42 and Abah v. Jabusco (Nig.) Ltd (2008) 3 NWLR (Pt. 1017) 528, 546. Those are subordinate facts to prove the traditional history of the land in dispute. Indeed, the answers to the questions posed to him in cross-examination show the respondent’s knowledge of the traditional history under consideration. Therefore, the fact that a member of his grantor’s family did not testify on the traditional history of the land in dispute was not fatal to his case.

The respondent as CW2 was consistent in his evidence of the traditional history of his grantor’s title starting from Pa Evwida, whom he said deforested the land and who was succeeded by his children and thereafter his grand-children including his grantors who conveyed the land to him on their behalf and on behalf of members of the family of Evwida. He was unshaken in cross-examination. In other words, his evidence was cogent.

The appellant pleaded that the land was deforested by his grandfather, Pa. Ekariko and, as DW1, testified to that effect. But at page 193 of the record, in cross-examination, he testified that his grandmother deforested the land in dispute. He went on at the same page to testify that his mother deforested the same land. Again at page 194 of the record, he testified that one area was deforested by his father and the other was deforested by his mother. As if that was not enough, he testified at page 195 that he was alive when his mother deforested the land in dispute and that he was not sure if anyone deforested [the land] before then and that his mother deforested the land in 1951. What a tangled web of confusion and contradiction that the appellant had weaved, leaving one wondering what to believe and what not to believe.

The appellant succeeded in giving not less than four different versions of the history of the land in dispute:
i. It was deforested by his grandfather, Pa Ekariko, though he did not state when he deforested it.
ii. It was deforested by his grandmother.
iii. It was deforested by his mother in 1951.
iv. One area of it was deforested by his father and another by his mother.

The trial Court therefore rightly held that the testimony of the appellant was contradictory and evasive.

Traditional evidence, just as any other evidence, is subject to assessment though not on the basis of demeanor of witnesses. In this matter, given the four different conflicting versions of the traditional history of the appellant, his traditional history collapsed under the unbearable weight of its contradictions. Where there is an internal conflict in the traditional history of a party or where evidence of traditional history is conflicting such traditional history is to be treated as unreliable. See Olodo v. Josiah (2010) 18 NWLR (Pt. 1225) 653, 673 and Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362, 398. This left the traditional history of the respondent’s grantors as the only one that stood the test of cross-examination.

The respondent successfully proved not only his title by production of documents of title but also that of his grantors and I therefore enter an affirmative answer to issue 2 and resolve it against the appellant.

ISSUE 3
Whether the appellant was not entitled to the grant of his counter-claim.
Where a defendant counter-claims for declaration of title to land in dispute, he has the burden of proving his entitlement to his claim since by his counter-claim, he puts himself forward as the claimant in the counter-claim.

Appellant’s counsel submitted that he (appellant) led copious credible evidence in support of his pleadings and that he proved his title on the balance of probabilities. He noted that the trial Court dismissed the case of the appellant on the ground that there were contradictions in his case and submitted that there are no material contradictions in the case of the appellant. It was his position that in the circumstances of this case where the octogenarian appellant was testifying about events that took place several years earlier, the Court ought to make allowance for minor discrepancies. He referred to the evidence of the appellant that he is a retiree.

Respondent’s counsel referred to the evidence given by the appellant and argued that the Court cannot pick and choose which of his evidence to believe as it suggests that three persons deforested the land.

I have already stated that a defendant who counter-claims for declaration of title to land in dispute has the same burden as the plaintiff in the main suit. Indeed, even in a case where the case of the plaintiff fails, the burden on the counter-claimant is not lessened by that fact. He still has to prove his entitlement to his claim on the balance of probabilities.

In the instant matter, the trial Court held that the same contradictions that I have already highlighted in this judgment knocked the bottom out of the counter-claim. I agree with the trial Court. The contradictions went to the root of the counter-claim of the appellant and are not mere discrepancies as lightly suggested by appellant’s counsel. The contention by appellant’s counsel that room should be made for the “discrepancies” in the evidence of the appellant because he is an octogenarian is not borne out by the record. The age of the appellant is not stated in the record. The mere fact that the appellant stated in cross-examination that he is a retiree does not mean that he is an octogenarian. The idea of his being an octogenarian is nothing but counsel giving evidence in his brief of argument and I therefore discountenance it.

I enter a negative answer to issue 3 and resolve it against the appellant.

Having resolved all the issues against the appellant, I find that the appeal has no merit. It fails and I accordingly dismiss it. I affirm the judgment of the trial Court.

I assess the costs of the appeal at N300,000.00 in favour of the respondent to be paid by the appellant.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I had read in draft, the lead judgment just delivered by His Lordship, Joseph Eyo Ekanem, JCA dismissing the instant appeal for lack of merit. I agree.

The appellant, as the defendants who had the burden of proof of the claim for declaration of title to land had not, on the preponderance of evidence at the trial Court proved his case. The evidence of the identity of the land though clearly known to the parties, was not supported by cogent evidence of the root of title of the defendant/appellant who had testified contradictorily that the land in dispute was deforested by his grandfather, his grandmother and/or his mother.

On the other side is the consistent evidence of the respondent on the founding by deforestation of the land claimed and the devolution of same to their grantors through their ancestor (Grand pa) Pa. Evwida.

I agree, with my learned brother, Joseph Eyo Ekanem, JCA therefore, that where there is a conflict in the evidence of the root of title as herein, it is obvious that such evidence of title is not cogent and no weight can be placed on same.
OLODO V. JOSIAH AND NWOKIDU VS. OKANU relied upon in the lead judgment are apt and applicable on the point.

The uncontradicted evidence of title by both traditional history (evidence) and document of title (grant) are left (remained) unchallenged and unrebutted by the respondent.

The Defendant/Counter Claimant now appellant had not proved his counter claim by credible evidence and therefore, had his counter claim rightly dismissed. It is the law that a Court of law does not decide cases based on hunches or rumours nor on speculation, or on sentiments, see NNPC V. FAMFA OIL LTD. (2003) PT. 155 FWLR 794 AT 812.

In this wise, my Lord Ekanem, JCA is right in disregarding the appellant’s learned counsel’s address, which is not legal evidence, as it relates to the alleged octogenarian status of the Counter Claimant/Appellant; and which in any case, does not lighten/lessen or detract from the burden of proof as by law provided for a claimant to prove his case on the preponderance of cogent admissible evidence; the age of a witness/claimant not being an exception thereof.

While I appreciate that advanced age may impede against a truthful witness by the loss of memory, recollection and articulation; as may even happen to a younger person, this possibility brings to the fore where/when learned counsel for a litigant must apply common sense and good judgment by fielding only witnesses that can articulate the facts rightly or lead such “indispensable” if not “incompetent” octogenarian only in evidence to the extent of their relevant and present memory.

This can be attained by proper pre-trial and chambers briefing and fore interaction with potential witnesses, which if not done or not adequately done may create a “blockade” in otherwise good case. The Court, as an umpire, cannot take the places of the litigants and/or their witnesses nor make a case for them.
Appeal is dismissed.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, JOSEPH EYO EKANEM, JCA had afforded me in advance the opportunity of reading the judgment just delivered by him.

I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother

I too hold that the appeal lacks merit and is accordingly dismissed.
I abide by all consequential orders in the lead judgment.

Appearances:

DR. JOHNSON EKPERUSI, with him, O. A. EVUEYERE, ESQ. For Appellant(s)

OKE ODINDE, ESQ. For Respondent(s)