IGBOKWE v. NWAJIOBI (2020)

IGBOKWE v. NWAJIOBI

(2020)LCN/14739(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/AW/158/2010

RATIO

APPEAL: BINDINGNESS OF RECORD OF APPEAL ON PARTIES

APPEAL: DUTY OF A PARTY TO AN APPEAL WHO WANTS TO FILE ADDITIONAL RECORDS OF APPEAL

Where a party to the appeal considers that there are additional records which may be necessary in disposing of the appeal, he shall at liberty, within 15 days of the service on him of the records to compile and transmit to the Court such records to be known as additional records of appeal. See Order 8 Rule 6 (supra). Learned counsel to the Appellant did not deem it necessary to compile and transmit additional records, he is therefore bound by the contents of the records, as it is presumed to be correct unless the contrary is proved. In TEXACO PANAMA INC. v. S.P.D.C. LTD (2002) LPELR 3146 (SC) the Supreme Court held thus:
“The parties and the Court are bound by the contents of that record as it is presumed correct unless the contrary is proved. See SOMMER v. F.H.A. (1992) 1 NWLR (pt. 219) 548. There is nothing to the contrary in this case. Furthermore, an Appeal Court is fully and correctly entitled to look at or refer to the record of appeal before it in consideration of any matter before it. This is what this Court held in the case of FUNDUK ENGINEERING LTD v. Mc ARTHUR (1995) 4 NWLR (pt. 392) 640 at 652.” Per KALGO, JSC.
See also DAGGASH v. BULAMA (2004) ALL FWLR (pt. 212) 1666 at 1684; SOMMER v. FEDERAL HOUSING AUTHORITY (1992) 7 LRCN 100 at 103. PER SANGA, J.C.A.

COURT: CARDINAL DUTY OF COURT TO MATTERS BEFORE IT

It is trite that Courts do not act on speculation or fantasies, its cardinal duty is to decide cases before it and not allow itself to be overwhelmed by counsel’s submission based on imagined facts and evidence, see BELLO v. NBN (1992) 6 NWLR (pt. 426) 206 at 214.
In ORUGBO v. UNA (2002) LPELR-2776 (SC) the apex Court held, per Tobi JSC thus:
“An appellate Court has no jurisdiction to read into the Record what is not there and it equally has no jurisdiction to read out of the record what is there. Both are forbidden areas of an appellate Court, if one may use that expression. An appellate Court must read the records in its exact context and interpret it of course it has the jurisdiction to decide whether on the face of the Record and on the cold facts the decision was proper or not.” PER SANGA, J.C.A.
LAND LAW: FIRST DUTY OF THE CLAIMANT TO TITLE TO LAND

The law is trite that the first duty of the Claimant to title to land is to show precisely a defined and identifiable areas to which his claim relates. If the claimant failed at this first hurdle, no further question need to be raised and his claim stand dismissed. In IYAJI v. EYIGEBE (1987) LPELR -1571 (SC) the apex Court held thus:
“… the first duty of any claimant of title to land is to show exactly and precisely a defined and identifiable area to which his claim relates, AKINALA BARUWA v. OGUNSHOLA (1938) 4 W.A.C.A. 159. If the claimant fails on this first hurdle no further question need arise. His case will stand dismissed…” per OPUTA, JSC.
See also OWHONDA v. EKPECHI (2003) 15 NSCQR 279 at 283; UKAEGBU v. NWOLOLO (2009) 37 NSCQR (pt.11) 1019 at 1025. PER SANGA, J.C.A.

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

AUGUSTINE C. IGBOKWE APPELANT(S)

And

ANGUS NWAJIOBI RESPONDENT(S)

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Appellant as Plaintiff sued the Respondent and his late father (Ephraim Nwajiobi) as Defendants in Suit No. AG/88/95 before the High Court of Anambra State, Aguata Judicial Division, Ijem Onwuamaegbu J., presiding. In the statement of claim dated 26th October, 1995 filed on the same date the plaintiff claimed against the Defendant for the following reliefs:
1. Declaration that the plaintiff is entitled to the grant of Statutory Right of Occupancy over the piece and parcel of land lying and situate at Azu Nweke Ofia Mgbu Okpo Ekwulobia shown verged Green on plan No. NLS/AN.1061/95.
2. N20,000.00 special and general damages for trespass.
3. An Order of perpetual Injunction restraining the Defendants, their servants, agents, or otherwise howsoever from entering the said land/or in any manner whatsoever from interfering with the plaintiff’s possession of the said land.
PARTICULARS OF SPECIAL DAMAGES:
1. Cost of logs of timber removed by the Defendants… N5,000.00.

General Damages……………………… N15,000.00
Total……………………………………………… N20,000.00
(Pages 9 to 11 of the Records)

On 18th April, 1996 the Defendants filed a Statement of Defence and counter claim (pages 12-16 of the Records). However, on 1st February, 2000 they filed an Amended Statement of Defence and Amended counter claim wherein they counter claimed against the Plaintiff as follows:
1. A Declaration that the Defendants are entitled to the grant of statutory right of occupancy over the piece or parcel of land known as and called Ana Uzi Ezeanyaoha land situate at Okpo Village Ekwulobia, in the Defendants’ Plan No. MU/D35/96.
2. N300,000.00 special and general damages.
3. An Order of Injunction restraining the plaintiff, his brother, servants, privies, agents or otherwise however from entering the said Defendants’ land in any manner whatsoever, from interfering

with the Defendants’ possession of the land aforesaid.
PARTICULARS OF SPECIAL DAMAGES:
1. Cost of Ufi Ogalanya tree felled by plaintiff……… #70,000.00.
2. Cost of 8 palm trees up-rooted by the plaintiff….. #80,000.00.
3. Cost of cassava up-rooted by the plaintiff………. #20,000.00.
4. Cost of Ube Oyibo tree felled by the Plaintiff…… #30,000.00.
5. General Damages…………………………………. #100,000.00.
Total…………………………………………………. #300,000.00.
(Pages 53 to 60 of the Records).

The brief facts that gave rise to filing this suit as narrated by the plaintiff is that in 1972 his father Late Clement Igbokwe purchased the land in dispute from One Emmanuel Ezenwankwo Nwuba for the sum of £72 (Seventy Two Pounds) under Ekwulobia native law and custom. That the land transaction was reduced into writing by the parties via a “Deed of conveyance or

lease of Land” which was admitted in evidence and marked as Exhibit ‘A’ by the learned trial Judge during trial. That the said Emmanuel Ezenwankwo Nwuba put plaintiff’s father into possession of the land and caused the sale to be published in the Nigerian Mirror Newspaper (Exhibit C). That plaintiff’s father exercised acts of ownership over the said land. When he died the plaintiff continued to own the land, until the Defendants, without the consent of the plaintiff entered the land and carried away logs of timber belonging to the plaintiff while laying claims to the plaintiff’ land. The plaintiff engaged the services of a surveyor who surveyed the land produced a survey plan No. NLS/AN.1061/95 (Exhibit C).

The Defendants’ case is that around 1952, one Ezeanyaoha Ezekeke made a customary grant of parcels of land, including the land in dispute, to the 1st Defendant (who was the Defendant’s father), that the said Ezeanyaoha Ezekeke put Defendant’s father into possession of the lands in the presence of witnesses. That Defendant’s father exercised acts of ownership over

the land by, inter alia, defending various suits in relation thereto as well as resisting trespassers thereto. That the Defendant’s father built his house on part of the land in 1957. That since then the Defendants have been in possession of the said land and were not disturbed by the plaintiff’s father (Clement Igbokwe) or his vendor (Emmanuel Ezenwanko Nwuba). That in 1995, the plaintiff, without consent of the Defendants trespassed onto the land in dispute and cut down an “Ufi Ogalanya” tree. When he was confronted by the Defendants the plaintiff caused the Defendants to be arrested and detained by the police. That subsequent attempt by members of both families to amicably resolve the dispute was scuttled by the plaintiff when he issued the Defendants with the Writ and Statement of Claim of the suit.

The matter went to trial and the plaintiff testified for himself as PW2 and called two witnesses to wit; James Ezeilo (PW1) and Patricia Nwuba (PW3) Exhibits A, B and C were admitted through the plaintiff. The Defendant testified as DW1 and called one witness (Festus Ezeofor) who testified as

DW2. Six documents were tendered by the Defendant, admitted into evidence and marked as Exhibits: D, E, F, G, H, and J respectively. At conclusion of trial, learned counsel to the parties were ordered to filed their respective Final Written Addresses which were adopted on 13th May, 2009 and judgment was reserved to 8/7/2009. However, it was on 20/7/2009 that the learned trial Judge delivered his judgment. (pages 147-166 of the Records). In his Judgment the learned trial Judge considered the plaintiff’s claim and held thus:
“for the avoidance of doubt, I find and hold that the land sold to Clement Igbokwe (plaintiff’s father) by Emmanuel Nwauba (father of PW3) evidenced by Exhibits ‘A’ and ‘C’ did not include the portion verged Pink in the plaintiff’s Exhibit B, that is to say, it did not include the land now in dispute. This finding determines the case of the plaintiff and in these circumstances the plaintiff is not entitled to the relief claimed. Plaintiff’s case must be and is hereby dismissed.”

This decision aggrieved the plaintiff. His

counsel filed a Notice of Appeal on 19th October, 2009 containing 5 grounds of appeal. (Pages 177-182 of the Records). Appellant’s brief was filed by P.I.N. Ikwueto SAN on 29th January, 2016. It was deemed properly filed and served on 27th March, 2019. Learned senior counsel formulated two issues for determination as follows:
1. Whether the learned trial Court was right in dismissing the Appellant’s case notwithstanding the far-reaching and profound findings of fact made in favour of the plaintiff by the same Court. (Grounds 1, 2, and 3).
2. Whether or not the learned trial Court was right in law when he failed to review, evaluate, consider or consider properly the pleadings and evidence of the parties and in particular evidence of ownership and long possession by the plaintiff (Grounds 4 and 5).

The Respondent’s brief was settled by E.N. Ezeonwuka Esq. It was filed on 11th September, 2017 but deemed as properly filed and served on 27th March, 2019. Learned counsel also formulated two issues for determination as follows:
1. Whether having regards to the findings of fact made by the Court

below by the parties in this suit, the said Court below was right in dismissing the Appellant’s case.
2. Whether the Court below properly received, evaluated or considered properly the pleadings and evidence adduced by the parties.

It is obvious that the issues canvassed by learned counsel to the parties are the same though couched differently. I will adopt the issues canvassed by the Appellant in determining this appeal.

ISSUE 1 is:
Whether the learned trial Court was right in dismissing the Appellant’s case notwithstanding the far-reaching and profound findings of fact made in favour of the Plaintiff by the same Court.

In his submission on this issue, learned senior counsel to the appellant stated that in OYENEYIN v. AKINKUGBE (2010) Vol. 1 (sic) (pt.276) 439 the Supreme court deprecated the practice of Courts making orders and far reaching conclusions which apparently does not accord with findings reached by the Court. That the apex Court reiterated the principle of law as follows:
“A Court of Appeal will correct errors of a trial Court made contrary to findings”.

That this appeal is a classical example of where, despite overwhelming evidence in support of appellant’s case, coupled with favourable findings of facts which ordinarily should ensure to the advantages of the Appellant, the learned trial Judge nevertheless proceeded to dismiss the appellant’s case. Learned counsel quoted some portions of the Judgment by the lower Court and submitted that a calm appreciation of these findings, (quoted pages 160, lines 5-9; 156 lines 11-13; 151 lines 23-26; 130 lines 20-29; 154 lines 36-37; 155 lines 1-2; 131 lines 17-24) would reveal the manifest injustice embodied in the decision by the learned trial Judge while dismissing the Appellant’s claim. That these findings, when juxtaposed with the conclusion reached by the learned trial Judge renders the judgment incongruous and ought to be set aside. Learned senior counsel urged the Court to allow this appeal on this ground.

On whether there are competing claims of possession and ownership of the land in dispute, learned counsel submitted that the learned trial Judge was not right when he held at page 152 lines 2-5 of the Records thus:

“The plaintiff also gave evidence of the exercise of acts of ownership and possession over the said land in the face of the competing claims of possession and ownership, I do not find any superior evidence to warrant the resolution of this issue in favour of the defendants”.

That the Appellant succinctly pleaded and led evidence of ownership and possession of the land in dispute to the effect that after the purchase of the land in dispute from the father of PW3, the appellant’s father was let into possession of same in the presence of witnesses, thereby confirming a valid customary sale of the land in dispute to the appellant’s father. That this assertion was neither impeached nor assailed by the Respondent. That after the demise of his father, possession of the land in dispute was vested on the Appellant. Cited: EGBO v. AGBARA (1997) 1 NWLR (pt. 421) 293; That the issue of competing interest in respect to possession and ownership does not arise and should not arise in this case as the Respondent failed the litmus test of proving his root of title after the onus shifted on him to do so. That one cannot talk of possession when

there is no proof of title. Cited: JIWUL v. DIMLONG (2003) 9 NWLR (pt. 824) 154; REGISTERED TRUSTEES, DIOCESE OF ABA v. NKUME (2002) 1 SC 19, where the apex Court held that:
“Where a party in an action for declaration of title is basing his claim to the land in dispute on a grant (as Defendant in this case), his title grantor or his successor-in-title must be called to prove his root of title. OFUME v. NGBEKE (1994) 4 NWLR (pt. 341) 746.”

That in this case the respondent pleaded his root of title to the grant by one Ezeanyaho Ezekeke, but neither the said grantor nor his successor-in-title was called to testify in proof of his root of title. That it is therefore preposterous to even imagine that the respondent has any claim in competition with the Appellant over possession and ownership of the land in dispute. Learned senior counsel urged the Court to hold that, in the face of the woeful failure of the respondent to prove his root of title in this case, the learned trial Judge’s conclusion that there was competing claims of possession and ownership as between the parties is not sustainable and so liable to be set

aside.

On onus of proof of title to the land in dispute, learned counsel to the appellant submitted that in discharging the burden of proof placed on the appellant, the law does not require him to prove his entitlement to the reliefs claimed by mathematical exactitude but by preponderance of evidence. That the appellant discharged the evidence burden placed upon him as found by the learned trial Judge at pages 154 lines 6-8; 154 lines 22-27; 154 lines 36-37; 155 lines 1-2; 156 lines 11-13. That the Appellant successfully established his entitlement to reliefs he sought by relying on two of the five ways recognized by the law in proving title to land, to wit;
A. Production of documents of title duty authenticated; and
b. Acts of possession and enjoyment of the land.

That it is trite law that even one out of the five roots of title pleaded is enough. That if a plaintiff relies on more than one root of title, he may be said to have done so ex abundanti cautela, by way making assurance doubly sure. Cited: EGBO v. AGBARA (1997) 1 NWLR (pt. 481) 293;

On the holding by the learned trial Judge that:

“The land sold to Clement Igbokwe (Appellant’s father) by Emmanuel Nwuba (father of PW3) evidenced by Exhibits A and C did not include the portion verged Pink in the plaintiff’s land in dispute.”

Learned senior counsel faulted this finding by submitting that the learned trial Judge was wrong because he earlier made pronouncement on Exhibit H tendered by the respondent which findings he quoted (though without referring to the page at the record of appeal). That there are abundant and sufficient materials upon which the Court can base its conclusion as to the identity of the land in dispute being sufficiently proved. That the law is trite that where there are already sufficient materials upon which a Court can draw conclusion as to the area of land in dispute, a survey plan is not a sine qua non. Cited the Supreme Court holding in ARABE v. ASANLU (1980) 5-7 SC 78 where it held thus:
“If proper description of the land in dispute is available in the proceedings, the absence of a plan is not fatal or not necessary.”

That apart from Exhibit B, there are other sufficient and reliable pieces of evidence by which

the identity of the land in dispute are ascertainable as shown from the plaintiff’s witnesses’ testimonies and exhibits tendered before the lower Court. On the finding by the learned trial Judge that Exhibits A and C failed to mention the existence of a road, learned counsel asked: “couldn’t the road have been developed after Exhibits A and C were executed?”

That the existence of a road was never in contention between the parties. That even where there are minor discrepancies in the testimonies of the plaintiff’s witnesses as it pertains to the description or identity of the land in dispute, such minor discrepancies are accommodated in law and cannot be enough ground to vitiate the claim of the plaintiff as held by the apex Court inNWOKORO v. ONUMA (1999) SCNJ 63.

That the Court has a bounden duty to read between the lines and upon a careful perusal of the pleadings and evidence, determine the actual party entitled to be determined the owner or entitled to the right of occupancy of the land. Cited: EDJEKPO v. OSIA (2007) 8 NWLR (pt. 1037) 635. That Exhibit B was tendered in evidence by the

plaintiff without objection by the Respondent. That the Supreme Court had settled the law to the effect that a Respondent wishing to contend that the plan filed by a plaintiff is not in accord with the land in dispute must pointedly say so by putting in issue the aspect of the plan in dispute in OMOREGIE v. IDUGIEMWANYE (1985) 2 NWLR (pt. 5) 41. That both the pleadings and evidence of the Respondent at the trial did put the Appellant’s Exhibit B in issue. That since Exhibit B was not made an issue by the respondent, the lower Court ought to have considered the said Exhibit together with other evidences to reach the conclusion that the appellant discharged the burden placed on him of ascertaining the land in dispute and therefore entitled to the declaration sought. He urged the Court to resolve this issue in favour of the Appellant.

In his submission on this issue, learned counsel to the Respondent argued that having regard to the finding of fact made by the lower Court and the evidence placed before it, the said lower Court was right in dismissing the Appellant’s case in its entirety for the following reasons:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Appellant did not prove the boundaries and/or identity of the land in dispute. That the Respondent put the issue of the identity of the land in dispute in issue. That the learned trial Judge said so at Page 155 of the Records when he held, inter alia, thus:
“Defendant contended that the piece of land in Exhibits A and C is not the one in dispute but is outside of it thereby putting the identity of the land now in dispute in issue.”

That since the identity of the land in dispute (shown verged Pink in the survey plan No. NLS/AN/1061/95, (Exhibit B) tendered in evidence by the Appellant) is in issue, then to succeed in this suit, the said Appellant must prove the identity of the land in dispute by credible and cogent evidence. That the Appellant did not prove the boundaries of the land in dispute as shown in Exhibit B because in their evidence they contradicted Exhibit B in material terms. That it is trite law that the cardinal duty of a claimant to title to land is to show the exact and precise identifiable areas to which his claim relates. If the claimant fails on this first hurdle, no further

question need arise and his claim will be dismissed. Cited: IYAJI v. EYIGEBE (2006) 2 LRCN 1 at 3; OWHONDA v. EKPECHI (2003) 15 NSCQ 279 at 283; UKAEGBU v. NWOLOLO (2009) 37 NSCQR (pt. ll) 1019 at 1025.

That the Appellant also tendered Exhibit A (Deed of Conveyance or Lease); Exhibit B (survey Plan No. NLS/AN1061/95 dated 22/9/95 prepared by C. P. C. Nwosu) and Exhibit C (Nigerian Mirror Newspaper Vol. 6 No. 2413 of Wednesday June 14, 1972). That according to Exhibit B, the boundary neighbours to the land in dispute are as follows:
i. Land of Ezenwankwo Ezeilo.
ii. Hall under construction by Mgbu Okpo community.
iii. Land of Mgbu Okpo Community Ekwulobia.
iv. Land of Appellant’s father, that is to say, part of the land verged Green in Exhibit B.

That the features on the land shown verged Pink in Exhibit B are:
i. Wall fence erected by the Appellant, demonlished by the Respondent.
ii. Stump of Ufi Ogaranya tree.
iii. Yam and cassava farm.
iv. Stumps of Bamboo tree.

That on 22/06/2004 PW1 testified under cross-examination on the boundary neighbours and feature on the land in dispute as

follows:
“I have boundary with Azu Nweke Mgbu and so do Ahijo Ezeonwu Ogaedu, Beniah Okeke, Okoli Onwuchukwe, Ezenwosu and Ezenweke. The Azu nweke Mgbu land in dispute includes Bamboo trees, Palm trees.”

That on 23/6/2004 the Appellant in his evidence as PW2 while describing the land in dispute testified, thus:
“I know the boundary neighbours of the land in dispute, it is bounded on one side by the Mgbu Okpo land on which the hall is being constructed, on another side by the land of Ezenwankwo Ezeilo – PW1 in this case, on another side by the land of Egbeaha and on another side Okpuno be Okpoeme by the person Emmanuel Ezenwankwo Ezenwuba who sold the land to my father.”

That PW3 while testifying under cross-examination on 8/11/2005 stated in respect of the boundary neighbours to the land in dispute as follows:
“The land in dispute is bounded by the land of Egbeahadike, Ezeanyoha, Goddy Anegbu and Mgbu Okpo community.”

That from the evidence of the boundary neighbours to the land in dispute as per the claim of the Appellant as given in evidence by the Appellant’s witnesses as

shown above, the said witnesses’ testimonies contradicted Exhibit B seriously in terms of the boundary neighbours to the land in dispute. That, the law requires Courts not to accept the evidence of a party which contradicts documentary evidence and also when the evidence of a party’s witnesses contradict themselves. Cited EZEMBA v. IBENEME (2004) 19 NSCQR 353 at 359.

Learned counsel to the Respondent then asked:
What is the effect of a party in a land case and witnesses contradicting the survey plan tendered in evidence by that party?

Learned counsel answered that the law is trite that once a party contradicts his survey Plan which he tendered in evidence, the Court will dismiss that party’s case without delay. Cited: OGEDENGBE v. BALOGUN (2007) 29 NSCQR (pt. II) 1373 at 1375; OKEDARE v. ADEBARA (1994) II KLR (pt. 23) 105 at 107, where the Supreme Court held thus:
“If the description of the land given in evidence does not relate to the land in dispute or any part thereof then the plaintiff’s claim or the Defendant’s counter-claim as the case may be, in relation to the land in dispute has

to be dismissed.”

Learned counsel also submitted that the Appellant and his witnesses contradicted Exhibits A and C in material terms. That on 16/06/2005 the Appellant tendered Exhibits A and C. That these two documents contain the boundaries of the land his late father bought from the late father of PW3 which learned counsel submitted that they did not tally. That even the boundary neighbours to the land in dispute as shown in Exhibit B did not correspond to the boundary neighbours state in Exhibits A and C. Learned counsel pointed out the discrepancies.

Learned counsel also submitted that PW2 and PW3 contradicted each other in terms of the location of the land in dispute. That in her testimony under-cross examination on 8/11/2005, PW3 (whose father sold the land to Appellant’s father) stated that the Nweke shrine of idol is on the land her father sold to Appellant’s father. But in his testimony in chief the Appellant who testified as PW2 stated that there is no shrine called Nweke near or on the land his father bought from the father of PW3. That the testimonies of PW2 and PW3 contradicted

each other as to the location of the land in dispute. That the law is trite that ascribing different names to the land in dispute may not be fatal, but contradictory evidence on the location of the land will defeat the claim. Cited: SALAMI v. GBODOOLU (1997) 4 KLR (pt. 50) 689 at 698.

On the effect of Exhibit H on the claim of ownership over the land in dispute verged Pink in Exhibit B, learned counsel to the Respondent submitted that Exhibit H is a disputed survey plan No. MU/D.23/84 filed in the lower Court and used by the people of Okpo Village, Ekwulobia, including the Appellant in suit No. AA/133/84: Lawrence Ezeilo & 3 Ors. v. Ephraim Nwajiobi who was the father of the Respondent. That suit No. AA/133/84 was filed against the Respondents father by the people of Okpo Village, Ekwulobia (including the Appellant) in a representative capacity. That in Exhibit H the land purchased by the Appellant’s father from the father of PW3 is clearly shown. That in Exhibit H, the boundaries of the land purchased by the Appellant’s father are consistent with the boundaries of the land described in Exhibits A and C.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned counsel submitted further that the Appellant did not prove the title of Emmanuel Ezenwankwo Nwuba from whom the said Appellant traced the root of his title to the land in dispute. Cited UKAEGBU v. NWOLOLO (2009) 37 NSCQR (pt. II) 1019 at 1043. That there is no way the Appellant would have succeeded in this suit without credible and cogent traditional evidence in respect to the land in dispute. Learned counsel urged the Court to resolve this issue in favour of the Respondent.

FINDING ON ISSUE 1
Issue 1 formulated by the Appellant is:
Whether the learned trial Court was right in dismissing the Plaintiff/Appellant’s case notwithstanding the far-reaching and profound findings of fact made in favour of the Plaintiff by the same Court?
I have considered the submission by learned senior counsel to the Appellant while arguing this issue particulary at paragraph 4.4 page 7 of his brief wherein he quoted the supposed findings by the learned trial Judge in his judgment. The learned counsel copiously quoted: pages 156 lines 11-13; pages 151 lines 23-26; page 130 lines 20-29 where the learned trial Judge purported held

thus:
“It was unequivocally in evidence and judicially resolved by the Court that, “Emmanuel Ezenwankwo Nwuba (father of PW3) sold the land in dispute to plaintiff’s father in 1972.”

I have carefully considered page 130 of the records and found that it does not contain that holding by the learned trial Judge. In fact, page 130 is the testimony of PW3. The entire Judgment by the lower Court is at pages 147-166 of the Records. That quotation obviously emanated from the imagination of learned senior counsel to the Respondent and it is hereby discountenanced.

Learned counsel to the Appellant also quoted the holding by the learned trial Judge at pages 154 lines 36-37 that:
“There is aboundant evidence from the plaintiff and his witnesses that the plaintiff’s father bought the land evidenced by Law and Custom and was put in possession.”

Unfortunately, learned senior counsel did not continue to quote the next sentence where the learned trial Judge held thus:
“Defendant’s plan, Exhibit, showed the land the father of PW3 Emmanuel Nwuba, sold to the

plaintiff’ father, Clement Igbokwe. This is also acknowledged in paragraph 5 (vii) of the Defendant’ Amended statement of Defence. Again Defendant at the end of his evidence in chief testified:
“Exhibits A and C tendered by plaintif in this case do not in any way relate to the land in dispute. Plaintiff’s father Clement Nwankwo Igbokwe bought a land from one Emmanuel Nwuba known as Azu Nweke which is outside the land now in dispute.”

Thus by this holding, the learned trial Judge rightly found that the Respondent countered the claim by the Appellant of his ownership of the land in dispute in his pleading and evidence adduced in support thereof. Learned senior counsel also quoted page 131 lines 17-24 of the Records which, upon a careful scrutiny of the Records is found to be nonexistent. I have carefully scrutinized the judgment by the lower Court at pages 147-166 of the Records and it is my finding that no where did the learned trial Judge made finding of fact that there was a valid customary transfer of the land in dispute to the Appellant. Neither was it pronounced that the

Appellant’s father was put in possession of the said land in dispute. In other words, the learned senior counsel to the Appellant read into the record what is not there; which to put it mildly is unfortunate for a senior member of the Bar to do.

Parties before the Court are bound by the contents of the record of appeal since they participated in its compilation and transmission to this Court as provided by Order 8 Rule 2 of the Court of Appeal Rules, 2016. Where a party to the appeal considers that there are additional records which may be necessary in disposing of the appeal, he shall at liberty, within 15 days of the service on him of the records to compile and transmit to the Court such records to be known as additional records of appeal. See Order 8 Rule 6 (supra). Learned counsel to the Appellant did not deem it necessary to compile and transmit additional records, he is therefore bound by the contents of the records, as it is presumed to be correct unless the contrary is proved. In TEXACO PANAMA INC. v. S.P.D.C. LTD (2002) LPELR 3146 (SC) the Supreme Court held thus:
“The parties and the Court are bound

by the contents of that record as it is presumed correct unless the contrary is proved. See SOMMER v. F.H.A. (1992) 1 NWLR (pt. 219) 548. There is nothing to the contrary in this case. Furthermore, an Appeal Court is fully and correctly entitled to look at or refer to the record of appeal before it in consideration of any matter before it. This is what this Court held in the case of FUNDUK ENGINEERING LTD v. Mc ARTHUR (1995) 4 NWLR (pt. 392) 640 at 652.” Per KALGO, JSC.
See also DAGGASH v. BULAMA (2004) ALL FWLR (pt. 212) 1666 at 1684; SOMMER v. FEDERAL HOUSING AUTHORITY (1992) 7 LRCN 100 at 103. I noted that none of the parties is challenging the authenticity of the Records. It is trite that Courts do not act on speculation or fantasies, its cardinal duty is to decide cases before it and not allow itself to be overwhelmed by counsel’s submission based on imagined facts and evidence, see BELLO v. NBN (1992) 6 NWLR (pt. 426) 206 at 214.
In ORUGBO v. UNA (2002) LPELR-2776 (SC) the apex Court held, per Tobi JSC thus:
“An appellate Court has no jurisdiction to read into the Record what is not

there and it equally has no jurisdiction to read out of the record what is there. Both are forbidden areas of an appellate Court, if one may use that expression. An appellate Court must read the records in its exact context and interpret it of course it has the jurisdiction to decide whether on the face of the Record and on the cold facts the decision was proper or not.”
It is therefore my holding that the entire submission by learned senior counsel to the Appellant where the record of appeal was not correctly captured or where it is intended to read into Records what is not there or to read out of the records what is there is hereby discountenanced by me.

In resolving this issue I have considered what learned counsel to the Appellant referred to as the “far reaching and profound findings of facts made in favour of the plaintiff by the lower Court and I found that some of the findings of facts does not reflect the correct findings by the lower Court. Be that as it may, I will consider the issue 1 on its merit. To start with, the Appellant did not prove the boundaries and identify of the land in dispute. The

Respondent put in issue the identity of the land in dispute. The learned trial Judge rightly stated so at page 155 of the Records when he stated thus:
“Defendant contended that the piece of land in Exhibits A and C is not the one in dispute but is outside of it thereby putting the identity of the land now in dispute in issue.”

The Appellant did not prove the boundaries of the land in dispute shown verged Pink in Exhibit B (survey Plan No. NLS/AN1061/95) because the Appellant and his witnesses contradicted the said Exhibit in their testimony. The law is trite that the first duty of the Claimant to title to land is to show precisely a defined and identifiable areas to which his claim relates. If the claimant failed at this first hurdle, no further question need to be raised and his claim stand dismissed. In IYAJI v. EYIGEBE (1987) LPELR -1571 (SC) the apex Court held thus:
“… the first duty of any claimant of title to land is to show exactly and precisely a defined and identifiable area to which his claim relates, AKINALA BARUWA v. OGUNSHOLA (1938) 4 W.A.C.A. 159. If the claimant fails on this

first hurdle no further question need arise. His case will stand dismissed…” per OPUTA, JSC.
See also OWHONDA v. EKPECHI (2003) 15 NSCQR 279 at 283; UKAEGBU v. NWOLOLO (2009) 37 NSCQR (pt.11) 1019 at 1025.

I will consider the testimonies of the Appellant (who testified as PW2) and his witnesses vis-à-vis the Survey Plan tendered by him on 16/6/2005 and marked as Exhibit B, (page 20(a) of the Records). Contained on Exhibit B, the Survey Plan No. NLS/AN1061/95 is the boundary neighbours to the land in dispute as shown verged Pink. They are as follows:
i. Land of Ezenwankwo Ezeilo.
ii. Hall under construction by Mgbu Okpo Community – Ekwulobia.
iii. Land of Mgbu Okpo Community – Ekwulobia.
iv. Land of Appellant’s father, which is part of the land verged Green in Exhibit B.

The features on the land shown verged Pink in Exhibit B are as follows:
i. Wall fence erected by the Appellant which was demonlished by the Respondent.
ii. Stump of Ufi Ogaranya tree.
iii. Yam and Cassava farm.
iv. Stumps of Bamboo tree.

The testimony of PW1 (James Ezeilo)

during cross-examination on 22/06/2004 while describing the boundary neighbours to the land in dispute is as follows:
“I have boundary with Azu Nweke Mgbu and so do Ahijo Ezeonwu Ogaedu, Beniah Okeke, Okoli Onwuchukwe, Ezenwosu and Ezenweke. The Azu nweke Mgbu land is the one now in dispute. The features on the land in dispute include Bamboo trees, Palm trees”. (page 123 of the Records).

The Appellant who testified as PW2, stated during cross-examination while describing the boundary neighbours to the land in dispute as per his claims testified as follows:
“…. The land in dispute is bounded by the land of Egbeahadike, Ezeanyoha, Goddy Anaebu and Okpo community…” (pages 130 of the Records).

P.W.3 is Patricia Nwuba, she testified on 8/11/2005, inter alia, as follows:
“I was present when my father sold the land now in dispute. There was a plan made showing the evidence of the land sold by my father to Clement Nwankwo Igbokwe plaintif’s father. There is an idol called Nweke Okpo close to Mgbu Okpo area. This Nweke idol was formerly in a bush called Ofia

Nweke.
“…. The land in dispute is bounded by the land of Egbeahadike, Ezeanyoha, Goddy Anaebu and Okpo community…” (pages 130-131 of the Records).

Upon a careful perusal of the testimonies of the Appellant and his witnesses, it is obvious that they are not describing the same land with the one in the Survey Plan tendered by him and marked as Exhibit B. Their evidence clearly contradicted Exhibit B. Thus the Appellant failed woefully to show exactly and precisely a defined and identifiable area to which his claim relates. The Supreme Court pronounced in IYAJI v. EYIGEBE (supra); per OPUTA, JSC (of blessed memory) that if the plaintiff failed on this first hurdle no further question need arise, his case will stand dismissed.
I reiterate that the evidence of the boundary neighbours given by the Appellant and his witnesses are full of contradictions as they adduced inconsistent evidence over the same issue, to wit; the boundary neighbours contained in the survey Plan No. NLS/AN 1061/95 tendered by the Appellant, admitted in evidence by the learned trial Judge and marked as Exhibit B. This failure is

fatal to the entire claim by the Appellant since it attracts dismissal.
In EZEMBA v. IBENEME ANOR (2004) LPELR -1205 (SC) the Supreme Court per ONU, JSC held thus:
“It will be grave injustice for a Court of law to accept the evidence of a plaintiff which contradicts documentary evidence and also when the evidence of the party’s witnesses contradicts themselves.”

It is therefore the Judgment of this Court that this appeal is bereft of merit and it is hereby dismissed. By this holding, it is not necessary for me to consider issue 2 formulated by the Appellant to wit; whether the learned trial Judge failed to review, evaluate or consider the pleadings and evidence of the parties. This is because I found that the learned trial Judge thoroughly reviewed, evaluated and considered the pleadings and evidence adduced by the parties in his judgment, and I so hold.

Therefore, the judgment by the lower Court delivered on 20th July, 2009 in Suit No. AG/88/95 is hereby affirmed by me. I make no order as to cost.

CHIOMA NWOSU-IHEME, J.C.A.: I had the honour of reading in advance the

Judgment pronounced by my learned brother, B.G. SANGA, JCA, which i adopt as mine.
I agree that the appeal be dismissed and the Judgment of the trial Court affirmed.
I also make no order as to costs.

RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my brother BITRUS GYARAZAMA SANGA, JCA.
I agree with his reasoning and conclusion.
I also dismiss the appeal.
I abide by the consequential Order made as to costs.

Appearances:

I. N. IKWUETO SAN For Appellant(s)

N. EZEONWUKA Esq. For Respondent(s)