INNOCENT C. OKONKWO v. NZE MICHEAL O. OKECHUKWU (2012)

INNOCENT C. OKONKWO v. NZE MICHEAL O. OKECHUKWU

(2012)LCN/5515(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of June, 2012

CA/PH/252/2006

RATIO

APPEAL: MEANING AND NATURE OF AN OMNIBUS GROUND OF APPEAL

It is well settled law that, an omnibus ground of appeal, is a ground of appeal which complains that the judgment of the lower court is against the weight of evidence. It is normally couched in general terms. Where an omnibus ground is relied upon, it implies that the judgment of the trial court cannot be supported regard having had to the weight of evidence adduced by the successful party or that the trial court wrongly accepted evidence or that the inference it drew and the conclusion it reached at based on the accepted evidence before it cannot be justified. It is therefore a ground which in its essence questions the evaluation of the evidence led before the trial court. As erroneously contended by learned counsel for the Respondent, an omnibus ground of appeal cannot be used to raise an issue or issues of law. An omnibus ground is therefore regarded as a ground of fact. See NKWOCHA v. MTN (NIG.) COMM. LTD. (2008) 11 NWLR (Pt.1099) pg.439; OPUIYO v. OMONIWARI (2007) 16 NWLR (Pt.1060) pg.415; LAGGA v. SARHUNA (2008) 16 NWLR (Pt.1114) pg.427, F.M.H. v. C.S.A. LTD. (2009) 9 NWLR (Pt.1145) pg.193; ADERIBIGBE v. ABIODOYE (2009) 10 NWLR (Pt.1150) pg.592 and BUWANHOR v. BUWANHOT (2009) 16 NWLR (Pt.1166) pg.22. PER HARUNA M. TSAMMANI, J.C.A.

ACTION: HOW IS A CAUSE OF ACTION DETERMINED

In order to determine the nature of the cause of action in any given case, the court will have recourse to the writ of summons and the statement of claim. To that end, the statement of defence is immaterial. See IWARA v. ITAM (2009) 17 NWLR (Pt.1170) pg.337; OGUNDIPE v. N.D.I.C. (2009) 1 NWLR (Pt.1123) pg.473; MUOMAH v. SPRING BANK PLC (2009) 3 NWLR (Pt.1129) pg.533; OSIGWE v. P.S.P.L.S. MGT. CONSORTIUM LTD. (2009) 3 NWLR (Pt.1128) pg.378 and CHKWU v. AMADI (2009) 3 NWLR (Pt.1127) pg.56. PER HARUNA M. TSAMMANI, J.C.A.

ACTION: HOW IS AN ACTION DETERMINED IF IT WAS STATUTE-BARRED

COURT: PRIMARY RESPONSIBILITY OF THE TRIAL COURT

The law is that, it is the primary responsibility of the trial court who saw, heard and assessed the witnesses who testified before him to evaluate the evidence and ascribe probative value to such evidence. In other words, the duty of evaluating and ascribing probative value to all relevant oral and documentary evidence lies within the province of the trial court who had the advantage of seeing and hearing the witnesses. Accordingly, where the trial Judge had diligently and justifiably evaluated and appraised the facts, it will not be the business or duty of the appellate court to substitute its own view for that of the trial court. appellate courts are usually reluctant to interfere where the trial court has properly appraised and evaluated the evidence presented before it. See P.T.F. v. W.P.C. LTD. (2007) 14 NWLR (Pt.1055) pg.478; OMAYE v. OMAGU (2008) 7 NWLR (Pt.1087) pg.461; ISMAIL v. STATE (2008) 15 NWLR (Pt.1111) pg.593 and GAGARAU v. PASHIRI (2006) 1 NWLR (pt.962) pg.521. PER HARUNA M. TSAMMANI, J.C.A.

APPEAL: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH EVALUATION OF EVIDENCE

a) Whether there is sufficient evidence to sustain the judgment; or
b) Whether the trial court failed to make proper use of the opportunity it had of seeing, hearing and observing the witnesses; or
c) Whether the findings of fact made by the trial court can be regarded as resulting from the evidence adduced before it; or
d) Whether the trial court has drawn the right conclusion from accepted evidence, or has taken the right view of the evidence adduced before it; or
e) Whether the findings of the trial court are justified in the sense that they flow from accepted evidence or are supported by the evidence before it. PER HARUNA M. TSAMMANI, J.C.A.

EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE THAT THE TRIAL COURT DID NOT PROPERLY EVALUATE EVIDENCE

JUSTICES

UWANI M. ABBA-AJI Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

INNOCENT C. OKONKWO Appellant(s)

AND

NZE MICHEAL O. OKECHUKWU Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of C. M. I. Egole, J. of the High Court of Justice of Imo State, Okigwe Judicial Division delivered on the 27th day of May 2005.
On 5th of April, 2000, the Respondent as plaintiff in the lower court took out a Writ of Summons against the Appellant as defendant to the suit.
By paragraph 14 of the Statement of Claim, the Respondent claimed as follows against the appellant:
(1) A Declaration of the Honourable Court that the Plaintiff is entitled to “statutory Right of Occupancy” in respect of a parcel of land known as and called Plot Number 47 Agiriga Road, Okigwe, situate Okigwe Urban, within the jurisdiction of the Honourable Court.
(2) The sum of one hundred thousand naira (N100, 000) being general damages in trespass in that the defendant, broke into the said Plot, and wrongly placed two carpenters on it, who built, and are using the sheds for carpentry purposes. The defendant also wrongfully broke into the said Plot of land and planted cassava and bananas without the permission or leave of the Plaintiff.
(3) An order of perpetual injunction, restraining the defendant, himself, or by his agents, servants workmen and privies, from further trespassing into the said Plot 47 Agiriga road, Okigwe Urban, property of the Plaintiff.

The facts of the case are as follows. Both the Appellant and Respondent claimed that their ancestors (fathers) were granted the land in dispute, that is 47 Agiriga Road Okigwe Urban by the Umurido Ubaha Community the original owners of the land who gave out portions to both their sons and strangers.
The Respondent claimed that the land in dispute was granted to his late father in 1977 and that the grant was also evidenced in an Agreement. The Appellant claimed that the land in dispute, that is 47 Agiriga Road Okigwe and the one he resides in 3 Awka Street are just “one common land i.e. one stretch of land granted to his late father by the Umurido Community in 1950. The Appellant tendered Exhibit D2 in support of the grant.
Both the Appellant and the Respondent gave evidence and called two other witnesses each in addition. The Respondent eventually did not tender the Agreement which evidenced his traditional grant of the land in dispute. The Appellant in paragraph 2 of the Statement of Defence said “the defendant shall contend and raise by way of preliminary objection that the Plaintiff’s suit is statute-barred not having commenced within the statutory limitation period.” But never raised any such preliminary objection throughout the trial of the case. The learned trial Judge found Exhibit D2 not to be of any probative value, accepted the traditional history of ownership by the Respondent and found in favour of the Respondent.
In particular, at pages 105 – 106 of the record, the learned trial Judge held as follows:
“First,
“It is well settled that in outright sale under native law and custom (and this applies to grant) conveyance or written contract is unnecessary. Akingbade vs. Oyeyipo Elemesho (1964) 1 All NLR 154 P. 159”
Secondly,
“In this case which was a transaction between Umurido Community and an indigene of Umurido, cogent and credible evidence of PW1, PW2 and PW3 can prove and indeed has proved grant to the Plaintiff’s father. Absence of the document which merely recorded the transaction is not fatal to plaintiff’s case. ”
And finally that,
“I have fully considered the evidence led by the parties in this case. I found the evidence of the Plaintiff and his witnesses more probable. I believe them. On the other hand, the evidence of the defendant and his witnesses are not credible at all. I disbelieve them. On the whole, I hold that Plaintiff proved his ownership of or title to the land in dispute”.
Dissatisfied with this judgment, the Appellant filed a Notice of Appeal (containing three (3) grounds of appeal) in this Honourable Court on 31/5/2005. The relevant briefs of argument for the appeal are:
1. Appellant’s brief of argument dated 19/11/2008 filed on 21/11/08 and deemed filed on 11/3/2010 – settled by Rev. F. U. Ekavhiare.
2. Respondent’s brief of argument dated 9/1/2012, filed on 5/4/2012 settled by Chief I. C. Ubani.
3. Appellant’s Reply brief dated 27/4/2012 filed on 30/4/2012 – settled by Rev. F. U. Ekavhiare.
Learned counsel for the Appellant nominated three (3) issues for determination, They are:
“1. Was the Respondent’s claim to the disputed land not statute barred and extinguished and his claims ought to be dismissed
2. Was Respondent’s claim not one for recovery of land which he lost possession of in 1982 when the defendant placed carpenters thereon?
3. Whether on the preponderance of evidence the appellant was not entitled to judgment of the court as against the Respondent.”
Before any consideration of the above, learned counsel for the Respondent raised preliminary objection to the Appellant’s Grounds of Appeal to wit:
1. Issues for determination must be distilled from Grounds of Appeal which Grounds of Appeal must attack the ratio decidendi of the judgment, not anything said by the way of obiter dicta
2. Concerning Appellant’s Issue 3, that it is not distilled from any ground of Appeal. Ground 3 of the Grounds of Appeal is an omnibus Ground.
On the first leg of the preliminary objection, learned counsel for the Respondent submitted that Grounds 1 and 2 of the Appeal were not attacks on the ratio decidendi of the judgment. The issue of the suit being statute barred was not exposed and canvassed in the lower court. They were not supported or brought to the notice of the parties to be agitated in the usual adversarial procedure.
On this, counsel referred to the case of Olufeagba vs. Agburraheem (2010) 17 WRN 23 at 31.
Respondent’s counsel submitted that the issue was only raised at the address stage by counsel for the Appellant. It is trite, said counsel, that address of counsel does not form evidence in court. That, it is equally trite that grounds of appeal must attack evidence, findings or errors in law. The Appellant’s grounds of appeal, Said counsel, attacked what was not evidence before the court or her findings or errors in law. He submitted that the grounds of appeal and issues formulated therefrom are incompetent, having not arisen, from the judgment of the court. Counsel said it is settled that where a ground of appeal does not arise from the judgment appealed against, in this case as regards Grounds 1 and 2, and indeed Ground 3, then the issues raised therefrom for determination are said to have arisen from incompetent grounds of appeal.
Learned counsel for the Respondent added that a ground of appeal must correlate with as well as arise from the decision appealed against and should frontally attack the ratio of the decision, otherwise it is baseless and liable to be struck out for incompetence.
He referred to the case of Garuba vs. Omokhodion (2011) 33 WRN 1 at 9 and Pharma Deko Plc. Vs. N.S.I.T.F.M.B. (2011) 35 WRN 76 at 80.
Counsel urged that we strike out Grounds 1 and 2 of the Appeal and the issues formulated from them.
On Appellant’s ground 3, Respondent’s counsel submitted that it is trite law that omnibus ground of Appeal such as ground 3 in the instant case can not be used to challenge or attack a specific finding made by a lower court on specific issue. He referred to the Supreme Court decision in the case of Fed. Min. of Health vs. Comet Shipping Agencies Ltd. and the Court of Appeal decision in the case of Orji vs. Orji (2011) 36 WRN at 116.
Counsel submitted further that issues of law are not raised in a ground of facts. He referred to the case of Garuba vs. Omokhodion (supra) and said that Appellant’s issue 3 which extensively dwelt on and canvassed pure law is condemnable, incompetent and liable to be struck out.
In response to the first leg of the Respondent’s preliminary objection which attacked Grounds 1 and 2 of the Notice of Appeal, learned counsel for the Appellant conceded that issues for determination must flow from Grounds of Appeal but submitted that the Grounds of appeal especially Grounds 1 and 2 upon which issues 1 and 2 are based were attack on the ratio decidendi of the judgment appealed against. The lower court, said counsel, held at page 94 of the record thus: “I hold that the action of the plaintiff is not statute-barred”. Counsel said the issue of the Respondent’s action being statute barred was profusely canvassed before the lower court when the Appellant by his Statement of Defence in paragraph 2 contended that the Respondent’s suit was statute barred. The paragraph, said counsel was based on the Writ of Summons and the Statement of Claim of the Respondent. The Respondent’s counsel never filed a Reply to deny this averment. It is elementary law, said counsel, that parties are bound by their pleading. Again, counsel submitted that Appellant canvassed this issue in his counsel’s address in pages 56 – 57 of the record. Respondent’s counsel did not address on this issue 1 in his address at pages 51 – 55 of the record. Furthermore, said counsel, since this is an issue that touches on the jurisdiction of the court, it can be raised at any time, even for the first time on appeal.
On this, counsel referred to the case of S. O. Akegbejo & Ors. Vs. Dr. D. O. Ataga & Ors. (1998) 1 NWLR (Pt.534) 459, 469 where it was held that there is no specific format prescribed for raising the issue of jurisdiction and that it is therefore a misconception to contend as the Respondent’s counsel did in his brief that the issue of the respondent’s suit being statute barred was not exposed and canvassed. He also urged that we discountenance the argument that the 1st and 2nd grounds of appeal did not flow from the judgment of the lower court.
With respect to the 2nd leg of the respondent’s preliminary objection that an omnibus ground cannot be used to challenge or attack a specific finding by a lower court, Appellant’s counsel submitted that, that is not a true position of the law.
He referred to the Supreme Court decision in Anyaoke vs Adi (1986) 3 NWLR (Pt.31) 731, 734 where the Supreme Court held:
“Whilst it is true that in Ozibe vs. Ayigbe (1977) 7 SC 1 the appellants chose to have in their notice of appeal the omnibus ground of appeal and another ground which separately alleged that the trial Judge failed to make a proper evaluation of the evidence adduced by the respondents, that does not establish a rule of practice that a complaint of improper evaluation of evidence cannot be argued under an omnibus ground”
(underlined emphasis supplied).
On the first leg of the Respondent’s preliminary objection, paragraph 2 of the Appellant’s Statement of Defence before the lower court reads thus:
“2. The defendant shall contend and raise by way of preliminary point of law that the plaintiff’s suit is stature-barred not having been commenced within the statutory limitation period.”
The Appellant did not bring any motion for preliminary objection and at the trial did not lead any specific evidence as to limitation. He only raised the issue of limitation again at the Address stage in the proceedings.
In dealing with the issue, the learned trial Judge remarked at pages 93 – 94 of the record as follows:
First, that:
“In pragraph 2 of the Statement of Defence the defendant said he would “raise by way of a preliminary point of law that the plaintiff’s suit is statute barred not having been commenced within the statutory limitation period.”
During the trial the defence counsel failed to raise the preliminary objection.- The defendant did not give such evidence as would lead to the inference that he contended that the action is statute-barred. However, in his address, defence counsel raised it as the 1st issue for determination by the court. He addressed the court extensively on the issue and quoted authorities to support the contention.”
The learned trial Judge went further on the issue and said:
“In my humble view he did not raise the preliminary objection. However, since it is a point of law I have decided to deal with the defendant’s issue 1 very briefly. Plaintiff’s claims are for declaration of title to statutory right of occupancy, damages for trespass and perpetual injunction. He did not sue for recovery of land. By claiming damages for trespass plaintiff is in effect saying that he is in possession of the land and defendant, is a trespasser.
The action is not for recovery of land. Section 3 of the Limitation Law of f mo State 1994 does not apply to this case. Alf the authorities cited by the defence are not helpful to him. I hold that the action of the plaintiff is not statute barred.”
In the instant case, the complaint of the learned counsel for the Respondent that the above holding by the learned trial Judge could not be regarded as part of the ratio decidendi of the case cannot be countenanced.
The Appellant submitted the issue of limitation of action for determination. The learned trial Judge observed the impropriety of the procedure the issue was raised but nevertheless assumed jurisdiction and made a pronouncement. I think in the peculiar circumstances of this case given the fact that essentially what is to be considered in limitation is the date in the Writ of Summons/Statement of Claim, vis-a-vis the accrual date of the cause of action coupled with the fact that a pronouncement was actually made, such a pronouncement would not be regarded as obiter.
For ease of reference grounds 1 and 2 of the Appellant’s Notice of Appeal read as follows:

Ground 1
Error in law
The learned trial Judge erred in law in holding that the plaintiff/respondent’s suit was not statute-barred by virtue of S. 3 Limitation Law (Imo State) 1994.
Particulars of Error
1. The cause of action arose in 1982 when the appellant placed carpenters on the land in dispute.
2. The plaintiff/respondent instituted his suit on 5/4/2000 (clearly eighteen years after the cause of action arose).
3. By virtue of S.3 Limitation Law (Imo State) 1994 no action shall be brought by any person to recover any land after the expiration of ten years from the date of which the right of action accrued to him.
Ground 2
Error in Law
The learned trial Judge erred in law in holding that the plaintiff/respondent’s suit was not one for recovery of land to qualify for the application of the Limitation Law (Imo state) 1994.
Particulars of Error
“1. By the Writ of Summons the plaintiff/respondent claimed a declarative relief of entitlement to the land in dispute.
2. The plaintiff/respondent claimed damages for trespass.
3. The state of evidence of parties and witnesses showed that the appellant had been in possession of the land in dispute, which the plaintiff/respondent sought to recover.

In the instant case, the issue of limitation was raised strictly as an issue of law before the lower court, it was incumbent on the respondent as plaintiff before the lower court to furnish a reply to the address of the defendant/appellant on the issue. The respondent cannot now be heard to say that the issue “was not exposed and canvassed in the lower ‘court” when in fact, the learned trial Judge made a pronouncement on the issue as issue of law. I think Grounds 1 and 2 of the appellant’s Grounds of Appeal not only correlate and arose from the decision appealed against but furnished an attack on the ratio decidendi of the decision.
The 1st leg of the Respondent’s preliminary objection is overruled. The simple answer to the 2nd leg of the Respondent’s preliminary objection is that the Appellant is entitled to formulate an issue of evaluation of evidence from the omnibus ground of appeal. see, Anyaoke vs. Ayigbe (1977) 7 SC. 1
Having held as above, the three (3) grounds of appeal by the Appellant and the issues formulated from them are valid. The Respondent’s Notice of preliminary objection cannot be sustained and it is accordingly dismissed.
I have carefully considered the issues nominated by the Appellant, I think, issue 1 would adequately cover the question raised under issue 2. For this reason, this appeal shall be decided on only two (2) issues as follows:
1. Was the Respondent’s claim to the disputed land not statute-barred and extinguished and his claims ought to be dismissed.
2. Whether on the preponderance of evidence the Appellant was not entitled to the judgment of the court as against the Respondent.

On Issue 1, learned counsel for the Appellant submitted that the action of the Respondent was for recovery of land, that the cause of action arose in 1982 when the Appellant let in a carpenter to build temporary shed on the land and that a period of eighteen years had elapsed between 1982 and the year 2000 when the Respondent filed his suit in the court below.
Learned counsel for the Appellant amongst other cases referred to the decision of the Supreme Court per Oputa JSC in Egbe vs. Adefarasin (1987) 1 NWLR (Pt. 47) 1, where it was held that the simple answer in determining the period of limitation is by looking at the Writ of Summons and statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. And, that if the time in which the Writ was filed is beyond the period allowed by the Limitation Law, then the action is statute barred.
Learned counsel for the Appellant submitted further that having found that the Appellant was in possession, it was wrong for the learned trial Judge to hold that the Respondent suit was not one for the Recovery of land. Possession, said counsel, is nine tenth of the law. It refers to the physical condition constituted by the fact that a person is in physical control. Counsel said, the Appellant has been in physical control of the land in dispute for at least twenty-two years.
Learned counsel for the Appellant referred to the definition of “Recovery” in The Advanced Learner’s Oxford Dictionary at page 703 as “get back (something lost), get back the use of, regain one’s position after losing for a time in a game”. He submitted that the suit of the Respondent is to get back what he allegedly lost when the Appellant placed carpenters on the land in dispute for 18 (eighteen) years before the commencement of the suit. He urged us to hold that the Respondent’s suit was one for recovery of land and therefore qualified for the application of the Limitation Law of Imo State 1994.
Learned counsel for the Respondent on the other hand submitted that the Limitation Law of Imo State is inapplicable to this case having regard to the claim before the court. The right of action claimed is not one within the purview of the statute of limitation. It is not a claim for recovery of possession. Appellant’s counsel referred to the case of Oguejiofor vs. Nwakalor (2011) 34 WRN 13 and submitted that it is trite law that title is involved where there is a claim for trespass and injunction.
Counsel noted that the claim in the instant case is for Declaration, Damages and Injunction. He submitted that in any claim for trespass coupled with a claim for injunction, as in the instant case, the title of the parties is automatically put in issue. And, in a claim for title, the statute of limitation does not apply.
Learned counsel for the Respondent contended that what is in issue between the parties in the instant case, is title to the land in dispute. That, both parties are claiming to be in possession of the land in that possession is disputed as the respondent’s claim is for trespass and perpetual injunction.
Respondent’s counsel referred to the cases of Olayinka vs. Oke (2002) 48 WRN 71 and Morenikeji vs Adegbosin (2003) 25 WRN 1 and submitted that the action in the instant case is not for recovery of land. The limitation period, said counsel, must be applicable in any given case, before one then takes cognizance of how does one determine the period of limitation.
Counsel submitted that the right stated in Section 3 of the Limitation Law only barred such recourse to the courts over cases in which the ground of complaint is for recovery of possession.
However, the respondent was not complaining of recovery of possession but of declaration of title, trespass and injunction. The limitation of time prescribed by the law did not apply to them. His suit was not predicated on recovery of possession.
Respondent’s counsel referred to the case of Ezekwesili vs. Agbapuonwu (2003) 22 WRN 1 and said that indeed, a plaintiff cannot indeed maintain an action both for trespass to a particular piece of land and recovery of possession of the same land as both claims are contradictory, inconsistent and mutually divergent, one being based on the fact of the plaintiff’s possession and the other on the fact that the plaintiff is out of possession and then claiming recovery of possession.
Respondent’s counsel maintained that he (respondent) preceded all along on the basis that he was in physical and actual exclusive possession when the Appellant forcibly broke and entered into his land. He referred to the cases of Akinterinwa vs. Oladunjoye (2000) 6 NWLR (Pt. 659) 92 and Ayinla vs. Sijuwola (1984) 5 SC 84 and submitted that a trespasser does not acquire possession of land by his act of trespass.
In deciding issue 1, it must be restated that the claim of the Respondent in the instant case is for Declaration, trespass and Injunction.
Section 3 of the Limitation Law of Imo State 1994 states that:
“No action shall be brought by any person to recover any land after the expiration of 10(ten) years from the date on which the right of action accrued to him ……………..”
The above Limitation Law would only apply to an action for the recovery of land and/or recovery of possession and not to an action for declaration of title to land as in the instant case.
The learned counsel for the Appellant seems to have mixed up the distinction between an action for declaration of title and an action for the recovery of land or recovery of possession. The word “recovery” itself suggests the regaining or restoration of something lost or taken away for example, as applicable to this case “land”. Therefore, while an action for recovery of land or recovery of possession admits or concedes the lost of title or possession, an action for declaration of title assumes ownership and disputes adverse possession.

The purpose of the limitation law on recovery of land is to discourage late filing of actions by litigants who had realized that they had legally lost title and/or possession. Clearly, the provision of Section 3 of the Limitation Law of Imo State, 1994 does not apply to an action as in the instant case for declaration of title to land.

In order to make a distinction between a claim for recovery of land or possession and a claim for declaration of title clearer, I will draw factual examples from at least two cases where one can say the claims before the lower court were for recovery of land simpliciter even when the points of law decided in those cases do not bear actual relevance with the issue here. The first case is the case of Mr. Popoola Elebanjo & 1 Or. Vs. Chief (Mrs.) Ganiat Dawodu reported in (2006) 15 NWLR (Pt. 1001)76.
The Appellants who were the Plaintiffs at the trial High Court filed their action on 5-12-96 against the respondent who was the defendant and claimed in their statement of claim paragraph 17 as below:
“17. Whereof the plaintiffs claim as follows:
(a) The plaintiff (sic) claim against the defendant is for possession of 2% plots of land situate lying and being at Ifako, Bariga, Gbagada, Lagos State the land already adjudged as the property of late David Taiwo Elabanjo (the plaintiffs (sic) father) by the Supreme Court of Nigeria in Suit No. SC/85/1985 Elabanjo vs. Tijani (1986) 5 NWLR (Pt.46) 952.
(b) Perpetual injunction restraining the defendant, her servants, agents and privies from further trespassing on the land.
(c) N50,000.00 damages for trespass.”
Here, it would be seen that the plaintiff’s claim conceded a previous loss of title which became restored in the judgment of the Supreme Court quoted therein and therefore qualifies as a claim for recovery of land properly so called.
The second case is the case of Dr. (Mrs.) Gloria Abiola vs. Mrs. Grace Aramide Olawoye reported in (2006) 13 NWLR (Pt 996) 1.
In that case, the claims of the plaintiff’s/respondent’s in the Writ of Summons before the trial court read in part as follows:
“i. A declaration that the purported assignment of the parcel of land and building situate at and known as 56, Ogundana Street, Ikeja, Lagos State by the 1st respondent to the 2nd defendant under the terms of a Deed of Assignment dated the 24th of February, 1989 is in breach of trust.
v. An order of rescission of the agreement to sell the parcel of land and building situate and known as 56, Ogundana Street, Ikeja, Lagos.
vi. An order enjoining the 2nd defendant by her servants, agents, privies or otherwise to deliver up possession of the parcel of land and building situate at and known as 56, Ogundana Street, Ikeja, Lagos.”
Here again, it could be seen that the claims of the plaintiff/respondent concedes a previous loss of title, as it seeks to impeach the Deed of Assignment for breach of trust, rescind the agreement to sell and seeks delivery of possession. This, also qualifies as a writ of action for recovery of land.
In the instant case, the learned counsel for the Respondent was right when he said that it is only when an action is declared to be on recovery of land that limitation time starts to run under the provision of Section 3 of the Limitation Law of Imo State, 1994.
The Respondent’s suit is for declaration of title to land not for recovery of land and is not therefore caught by the provision of Section 3 of the Limitation Law of Imo State, 1994.
The learned trial Judge was not wrong to have held that the Respondent’s suit was not one for recovery of land to qualify for the application of the Limitation Law (Imo State) 1994.
Issue No. 1 is resolved against the Appellant.

On Issue No. 2, learned counsel for the Appellant reviewed the evidence adduced in the case and noted that the Respondent testified that the land in dispute was granted to his father in 1977 and that the grant was embodied in a document which he did not tender at the trial. That, the learned trial Judge held thus:
“It is well settled that in outright sale under native law and custom (and this applies to grant) conveyance or written contract is unnecessary. Absence of the document which merely recorded the transaction is not fatal to the plaintiff’s case.” See page 105 of the record.”
Counsel submitted that in the instant case, the alleged grant was reduced into a document which only could speak of what it contains by Section 132(1) of the Evidence Act, 1990 (now Section 128 of the Evidence Act 2011).
“When any…..grant of property has been reduced to the form of a document, no evidence may be given of such….grant except the document itself.”
He submitted that by this provision it is only the document of the alleged grant that can speak, so to say. That, on the contrary, the Appellant testified that the land in dispute was a part of a larger track of land which Umurido land committee granted to his father in 1950, and he tendered Exhibit D2 in proof of the grant.
Counsel submitted that at page 103 of the record the learned trial Judge found as follows:
“I read Exhibit D2. However Exhibit D2 was quite clear on the fact that the dimension of the land sold to the defendant’s father is 50′ x 100′. Certainly, a plot of land measuring ’50 x 100′ is not and cannot be a double plot.”
A close took at Exhibit D2, said counsel will however reveal that the learned trial judge was in error in his finding as Exhibit D2 never referred to the dimension of the land sold to the father of the Appellant. The finding, said counsel, was not based on the evidence before the court since Exhibit D2 was clear as to what was conveyed to the Appellant’s father contrary to the erroneous findings of the learned trial Judge there was need to properly evaluate the evidence of both parties on this issue. The conclusion drawn by the learned trial Judge, said counsel, was grossly at variance with the evidence before him. He submitted that though the evaluation of evidence for the purpose of reaching conclusion on facts is not the duty of an appellate court but where the trial court fails to evaluate evidence before it or fails to draw proper conclusions from undisputed facts, an appellate court is in as good a position, to do so as the trial court. – Kate Enterprises Ltd. vs. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116, Onyemaechi vs. Nwohumo (1992) 9 NWLR (Pt . 265) 372.
Counsel submitted that on proof of grant there was no legally admissible evidence to show how the Respondent came to own the land in dispute. The document of the alleged grant was not tendered in evidence. The Respondent testified that Umurido land committee granted the land in dispute to his father in 1977 whereas Appellant’s contention was that the land in dispute was part of the land granted to his father in 1950 by Umurido land committee. The question therefore, said counsel, as to whether the land in dispute was a part of the land granted to Appellant’s father in 1950 falls within the domain of traditional evidence which could have been resolved by examining recent acts of ownership by the parties in relation to the land in dispute. The learned trial Judge having failed to evaluate the evidence before him, he urged this court to do so.
Learned counsel for the Respondent submitted that the Appellant was not entitled to the judgment of the court against the Respondent. He referred to the case of Akingbade vs. Oyeyipo (1964) 1 All NLR 154 at 159 and emphasized that it is well settled that in outright sale under native law and custom (including grant) conveyance or written contract is not necessary.
He submitted that in this case, which was a transaction between Umurido community and an indigene of Umurido, that is the Respondent herein, cogent and credible evidence of PW1, PW2 and PW3 can prove and indeed has proved grant to the Respondent’s father. Absence of the document which merely recorded the transaction is not fatal to the respondent’s case. Section 132 (1) of the Evidence Act (now Section 128 of the Evidence Act 2011) is inapplicable in the circumstance. What the section seek to achieve is to ascertain the contents of a grant and not whether there was indeed a grant. In this case, said counsel, what is relevant is whether there was a grant, and this was proved in evidence, even what was granted was proved in evidence.
Counsel referred to the evidence of PW1 at page 26 of the record thus:
“Ikpa Oru land is owned by Umurido Ubaha Community. The portion No. 47 Agiriga Road Okigwe, was given to my father George Okechukwu by Umurido Community. I got it by inheritance from my father.”
Counsel submitted that the above piece by PW1 was not challenged. Also, that PW2 a witness from the original owner community stated at page 33 that:
“I know Awka Street very well. I know No. 3 Awka Street. It was sold to one Richard Okonkwo – the father of the defendant about 1950. The land No. 3 Awka Street is not the same as the land No. 47 Agiriga Road. No. 3 Awka Street is one plot and the purchaser walled it around.”
Counsel said the evidence of PW2 is so crucial in that he said he is a member of the original land owning community and that besides he was amongst the persons that physically went and made the grant of the land in dispute to the father of the Respondent. His piece of evidence, said counsel, remained unchallenged. According to counsel, equally of importance is the evidence of PW3, money hard Chukwu, also an indigene of the land original owner community and who was also amongst the persons that were physically present from the community and made the grant of the land in dispute to the Respondent’s father. He stated thus:
“I know the land. The land is situated at Agiriga Road. From my knowledge the owner of the land was late George Okechukwu and it was inherited by Sunday Chief Sunday Okechukwu. He is also called Michael. I was present when the land was given to George Okechukwu.”,
Learned counsel for the Respondent, submitted that on the other hand, the evidence of the appellant and his witnesses concerning the alleged grant of land in dispute to his father are not credible at all. No. reasonable tribunal would believe the case of the appellant.
For instance, said counsel, the appellant himself as DW1 on page 43 of the record tendered Survey Plan No. AS/A/IMD/2000 dated 07/09/2000 as D1. Therefore, from the said documents, the Honourable court was entitled to read about the measurement/size of the land allegedly granted amongst other things. The same appellant also tendered Exhibit D2, the document of the alleged grant. The Honourable court was entitled to read and interpret both Exhibits together and not treat them in isolation, as the appellant would want to do. Learned counsel for the respondent then referred to different portions of the evidence of the appellant himself to show the self – contradictions in the story that by the same Exhibit D2 he simultaneously purchased the Plot of 3 Awka Street and the disputed Plot of 47 Agiriga Road which he claimed to be “one just common land, that is one stretch of land”.
First, at page 42, the Appellant said:
“The case between us is land matter. The land is called 47 Agiriga Road Okigwe.”
At page 43, he said:
“I know the land called 3 Awka Street. No. 3 Awka Street and No. 47 Agiriga Road are just one common land, that is, one stretch of land.”
And at page 45
“I do not know of any double plot along Agiriga Road other than my own…”
From this accounts, learned counsel for the Respondent inferred that the appellant admitted knowing the respective lands with distinct numbers. Therefore, his claim that they are one is not credible.
Still on this, Respondent’s counsel submitted further that from the precise words of Exhibits D1 and D2 what was given to the appellant was only a plot and not plots which very plot given was stated to be of No. and not Nos.
Therefore, said counsel, the trial court was perfectly right and correct when it held that, certainly a plot of land measuring 50ft x 100ft is not and cannot be a double plot.
Learned counsel for the respondent took a foray into the pleadings of the parties and submitted that in fact the appellant did not properly traverse paragraph 7 of the Respondent’s Statement of Claim which alleges that the appellant’s father was given Plot No. 3 (now No. 5) Awka Street Okigwe.
The said paragraph 7 reads:
“7. One Richard Okonkwo, late father of the defendant, was given plot No. 3 (now No. 5) Awka Street Okigwe Urban. The father of the defendant built house on this his own plot and resided there. The house was walled at the back in order to demarcate it from adjoining plots.”
In reaction to the above, paragraph 11 of the appellant’s statement of defence says:
“11. The defendant deny (sic) paragraphs 7 and 8 of the Statement of Claim. The defendant aver that the land in dispute was granted to his late father Richard Okonkwo in 1950 by Umurido land committee of Ubaha Okigwe. The document evidencing the grant is herewith pleaded and shall be founded upon at the trial.”
Meanwhile, said Respondent’s counsel, the suit and evidence of the Respondent is that the land in dispute is No. 47 Agiriga Road, Okigwe and that the said No. 47 Agiriga Road is different and distinct from No. 3 Awka Street Okigwe.
Finally, in his brief of argument, learned counsel for the Respondent pointed out that the cases Kate Enterprises Ltd. Vs. Daewoo Nig. Ltd. (supra) and Onyemaechi vs. Nwohumo (supra) referred to by the Appellant’s counsel are not apt as the learned trial Judge did in fact give adequate consideration to the appellant’s case but rejected same.
Rev. F.U. Ekayhiare for the appellant filed a Reply brief and took that opportunity to re-emphasize the following:
1. That, assuming without conceding that the land in dispute was granted to the Respondent’s late father in 1977 it follows without more that the appellant was in possession of the land in dispute by act of putting carpenter thereon before it was allegedly granted to Respondent’s father in 1977. The Respondent’s suit ought to have failed, the Appellant having been adjudged to be in actual and not adverse possession.
2. The words “50 ft x 100 ft” were uncharitably imported into the proceedings by the learned trial Judge. No where in the record of appeal was the Appellant’s late father granted “a plot of land measuring 50 ft x 100 ft”. Exhibit D2 is clear and unambiguous it says in paragraphs 3 – 5 “the undersigned persons on behalf of themselves and others of their family Umurido show a portion of land plot No…. on …… B Road…..The reference to “Plot” in Exhibit D2 was with respect to identification and not to size or “quantity”
3. Exhibits P1 and D1 which are the Survey Plans of the land in dispute clearly supports the clear and unambiguous delineation that the land in dispute is directly behind the house of the Appellant. Both lands are contiguous and stretches from one end of a road called “Agiriga Road” to the end of another road called “Awka Street”.
And perhaps also a new point that:
4. That absence of the document (by the Respondent) if any becomes of paramount importance when the PW2’s evidence under cross-examination at page 35 lines 5 – 13 is considered. PW2 in one breath told the lower court that the land in dispute was granted to the Respondent’s father and in yet another breath he said he was physically present when the land in dispute was granted to Appellant’s father in 1950″…..”
In deciding Appellant’s issue No. 2, the first important point is the reliance by the Appellants counsel that if there was a document or grant to the Respondent’s father, that document should have been produced in court, otherwise the court should, invoke the provision of Section 132 (1) (now Section 128(1) of the Evidence Act 2011) against the Respondent.
In this respect, I am in agreement; with both the learned trial Judge and the learned counsel for the Respondent that in an outright sale under native law and custom (and this applies to grant) conveyance or written contract is unnecessary. Under native law and custom, the requirements for a valid sale of land are the payment of the agreed purchase money by the purchaser and delivery of possession of the land by the vendor to him. It is not necessary to have a written contract or conveyance as under English Law see. Commissioner for Lands and Housing, Kwara State vs. Atanda (2007) 2 NWLR (Pt.1018) 360. Yusuf vs. Matthew (1999) 13 NWLR (Pt.633) 30. Adesanya Vs. Aderounmu (2000) 6 SC (Pt. 11) 18. Elema vs. Akenzua (2000) 6 SC (Pt.111) 26 at 37. Ajayi vs. Jolaosho (2004) 2 NWLR (Pt. 856) 89.
The reference to the provision of Section 128 (1) of the Evidence Act 2011 by the learned counsel for the Appellant is in the circumstances also misleading. Section 128 of the Evidence Act deals with Evidence of terms of judgments, contracts, grants and other dispositions of property reduced to a documentary form.
Section 128 (1) which the learned counsel for the appellant tenaciously clinged to for his case provides for the general rule as follows:
“128 (1) when a judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act, nor may the contents of any such documents be contradicted, altered, added to or varied by oral evidence.”
Section 128 of the Act is however subject to an array of exceptions. In relation to the instant case, the exception provided for in Section 128 (2) and (3) are relevant.
(2) Oral evidence of a transaction is not excluded by the fact that a documentary memorandum of it was made, if such memorandum was not intended to have legal effect as a contract, grant or disposition of property.
(3) Oral evidence of the existence of a legal relationship is not excluded by the fact that it has been created by a document when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or is carried on.
Clearly, the circumstances of the Respondent in the instant case falls squarely within the purview of the provision of Section 128 (3) of the Evidence Act 2011. This is because what the Respondent sought to prove and did actually prove is/was the existence of the relationship of grant of the land in dispute between Umurido Community and himself an indigene of Umurido. The terms of the grant if any were not in issue in the case. Furthermore, this proof was achieved by the credible eye witness account of PW2 and PW3 who knew of the grant to the Respondent’s father.
The other points in Issue 2 concern the attempt by the learned counsel for the Appellant first to impeach the judgment of the lower court for allegedly importing the measurement of land as 50 ft x 100 ft into Exhibit D2. The second is casting negative aspersions on the evidence of PW2 as inconsistent through the recordings at page 35 Lines 5 – 13 rendered in the course of cross-examination. On exhibit D2, I do not think it is right or possible for the learned counsel for the appellant to impeach the judgment of the lower court on the allegation that Exhibit D2 did not contain the measurement of the Appellant’s land and that the suggestion of a measure of 50 x 100ft is extraneous and perverse.
In the first place, the judgment of the lower court was not based on Exhibit DZ. The judgment of the lower court was based on the credibility of the evidence of PW1, PW2 and PW3 as against the witnesses for the Appellant.
Secondly, Exhibit D2 itself was adjudged by the learned trial Judge to be of no probative value. Either way, therefore the extraneous comment that Exhibit DZ granted the Appellant’s father a Plot of land “measuring 50ft x 100ft” which does not go into the decision of the trial court is at best obiter, does not add to or subtract from the Appellant’s case and does not occasion any miscarriage of justice.
The attack by the learned counsel for the Appellant on the evidence of pW2 during cross-examination is of the same trivial category as the point just disposed off.
The allegation here is that PW2 blew hot and cold during cross-examination at page 35 of the record when he said:
“I was not one of those that joined Eleghasim Ugwa in 1950 to grant the land in dispute to the defendant’s father in 1950. The dimension is 50 x 100. I was physically present when Chief Eleghasim Ugwa granted the land in dispute to defendant’s father in 1950.”
The only confusion created by the statement of PW2 here is the recording of the land in dispute (as underlined). The totality of the evidence of PW2 both in examination – in – Chief and at cross-examination is to the effect that he was physically present when the land in dispute at no. 47 Agiriga Road was granted to the Respondent’s father and that he was quite familiar with the circumstances and grant of the Plot at No. 3 Awka Street to the Appellant’s father in 1950. Thus, the confusion ‘in recording between the land (that is 3 Awka Street, Okigwe) and the land in dispute (that is 47 Agiriga Road Okigwe). The various other portions of the evidence of PW2 bore credence to the above.
Thus in examination – in – Chief, at page 33, he said:
“I know about the dispute between two of them. They are disputing over a piece of land called 47 Agiriga Road Okigwe. I know the place very well. The owner of the land is Chief M.O. Okechukwu i.e. the plaintiff. He was the first son of Nze George Okechukwu so he got the land by inheritance”…”
Later on,
“I know Awka street very well. I know No. 3 Awka Street. It was sold to one Richard Okonkwo – the father of the defendant about 1950. The land – No 3 Awka Street is not the same as the land No. 47 Agiriga Road. No. 3 Awka street is one plot and the purchaser walled it around. . . .
The plaintiff reported that one Okonkwo was claiming that land before he took action.”
Again, during cross-examination just before the statement complained about by the learned counsel for the Appellant, PW2 opened up his cross-examination as follows:
“I am not aware that the land in dispute was granted to the father of defendant in 1950. It was granted to Nze Okechukwu father of Chief M. O. Okechukwu (plaintiff)… …
And at the tail end of page 35 up to page 36 of the Record of Appeal, the same PW2 still at cross-examination clearly said this:
“It is not true that the defendant has his house on the land in dispute. He has his house on No. 3 Awka. I went last to the land about five years ago. I passed through the land I did not go into the land….”
The totality of the evidence of PW2 does not confirm the error on record on which the Appellant’s counsel seems to be making heavy weather on. In circumstances as this, when there is some typing error or error of recording in the record of the court the rule is Ex tota material emergat resolutio that is, the construction or explanation should arise out of the whole subject matter.
In the instant case, the error of typing and/or recording of evidence noted at Lines 5 – 13 at page 35 by the learned counsel for the Appellant cannot avail the Appellant.
Finally, the learned counsel for the appellant made heavy weather of the appellant’s previous possession of the land in dispute by putting carpenters on the land to the knowledge of the Respondent.
The truth in law is that in the face of ownership, or proof of ownership, every act of possession is an act of trespass.
In other words, an act of trespass can never become an act of possession and the rightful owner of the land is entitled to complain once he becomes aware of the trespass.
See, Chukueke vs. Okoronkwo (1999) 1 NWLR (Pt. 587) 410 at 412. Akinterinwa vs. Oladunjoye (2000) 6 NWLR (Pt. 659) 92. Ayinla vs. Sijuwola (1984) 5 SC 44.
Issue No. 2 is also resolved against the Appellant.
Having resolved the two (2) fssues in this appeaf against the Appellant, the appeal lacks merit and it is accordingly dismissed.
N30,000 costs is awarded in favour of the Respondent, against the Appellant.

UWANI MUSA ABBA AJI, J.C.A.: I have had the privilege of reading through the Judgment of my learned brother, M. A. Owoade, JCA, just delivered.
I agree with the reasoning and conclusion reached therein that the appeal is devoid of any merit. I adopt same as mine. I have nothing more to add.
I also dismiss the appeal and endorse the consequential order as to costs.

HARUNA M. TSAMMANI, J.C.A.: I had the advantage of reading before now the judgment just delivered by my learned brother, M. A. OWOADE, JCA.
The Plaintiff/Respondent’s claim before the lower court as per paragraph 14 of the statement of claim was as follows:
(1) A DECLARATION of the Honourable Court that the Plaintiff is entitled to “STATUTORY RIGHT OF OCCUPANCY” in respect of a parcel of land known as and called PLOT NUMBER 47 Agiriga Road, Okigwe, situate Okigwe Urban, within the jurisdiction of the Honourable Court.
(2) The sum of one hundred thousand naira (N100,000.00) being general damages in trespass in that the defendant, broke into the said Plot, and wrongly placed two carpenters on it, who built, and are using the sheds for carpentry purposes. The defendant also wrongfully broke into the said Plot of land and planted cassava and bananas without the permission or leave of the Plaintiff.
(3) AN ORDER OF PERPETUAL INJUNCTION, restraining the defendant, himself, or by his agents, servants workmen and privies, from further trespassing into the said Plot 47 Agiriga road, Okigwe Urban, property of the Plaintiff.
The case of the Plaintiff/Respondent at the trial court was that the land in dispute was owned by his late father, George Okechukwu through a grant by Umurido Community. That the land in dispute originally belonged to the Umurido Community who “plotted” the land and gave some portions to their members, and sold some to strangers. That the gift to his father was embodied in a temporary agreement. It is also the Respondent’s case that the land was given to his father in 1977, while plot No. 3 Awka Street was sold to the Defendant/Appellant’s father by the Umurido community sometimes in 1950. That sometimes in 1982, the Defendant/Appellant trespassed onto the land whereof he took a civil action against him at the Magistrate’s court, but he was non-suited, and that he appeared to the High court and the High court set aside the decision of the Magistrates court, on the ground that it had no jurisdiction over a piece of land in an urban Area. It is also the Respondent’s case that during the pendency of the matter at the Magistrate court, which lasted 12 years, the Appellant continued trespassing onto the land by planting cassava, bananas, avocado pear, mango and olugbu trees. That he reported the matter to the police and after hearing from the original owners, the Police advised the Appellant to apologize to him, but the Appellant refused which prompted the action at the lower court.
The Appellant as Defendant before the lower court admitted that the land in dispute between him and the Respondent is called No. 47 Agiriga Road, Okigwe. That he inherited the said land from his late father, Richard Okonkwo, who bought the land from the Umurido people of Ubaha village, Okigwe in December, 1950. That there was an Agreement of the sale transaction between his father and the people of Umurido. The said Agreement is in evidence as Exhibit D2. That his father died in 1976, but before his death, he had planted two trees, one on each end of the land, which is an expanse of land extending from Awka street to Agiriga Road. It is therefore his case that the land his father bought extends from Awka Street to Agiriga Road and that no land separates it from Agiriga Road. That his father erected a building at Agiriga Road but it collapsed during the civil war. That there is a toilet and soak-away pit and carpenter’s shed which was erected in 1976 by a carpenter who was granted licence to build the shed and that the carpenter has been paying him rent every month. It is also his case that there was a big gutter on the land before the war, but his father closed it.
It is also the Appellant’s case that, No. 3 Awka Street where he lives is not in dispute. That it was in 1986, when the Respondent went to the land with a Surveyor but he was chased away by the people of Agiriga. That before he could reach the Respondent, the Respondent had reported to the Police, who intervened between both of them, whereof the Respondent was asked to leave the land. He denied that the Respondent inherited the land in dispute and therefore is not the owner of the land.
At the trial, the Plaintiff/Respondent testified and called two witnesses who gave evidence as PW2 and PW3 respectively. He also tendered a Survey Plan No. 06/2000 dated the 17/4/2000, and a Letter of Apology written to him by the Isuikwato/Okigwe Local Government dated 18/12/1987, which were admitted in evidence as Exhs. P1 and P2 respectively. The Defendant/Appellant also testified and called two witnesses who gave evidence as DW2 and DW3. The Appellant tendered his own Survey Plan No. AS.A/IMD/15/2000 dated 07/9/2000, and the Sales Agreement between him and the Umurido Land Owners dated the 3rd December, 1950, and which were admitted in evidence as Exhibits D1 and D2 respectively. At the close of evidence, both parties filed and exchanged Written Addresses. In a considered judgment delivered on the 27th day of May, 2005, the learned trial Judge found for the Plaintiff/Appellant and granted all the reliefs sought by him. The Defendant/Appellant was aggrieved by the said judgment and has then appealed to this court, vide Notice of Appeal dated the 30/5/2005 and filed the 31/5/2005.
The Notice of Appeal consists of three Grounds of Appeal (including the omnibus Ground). The Grounds of Appeal are herein reproduced below:
1. ERROR IN LAW
The learned trial Judge erred in law in holding that the Plaintiff/Respondent’s suit was not statute-barred by virtue of Section 3 Limitation Law, Imo State, 1994.
PARTICULARS OF ERROR:
1. The cause of action arose in 1982 when the Appellant placed carpenters on the land in dispute.
2. The Plaintiff/Respondent instituted his suit on 5/4/2000 (clearly eighteen years after the cause of action arose).
3. By virtue of S.3 Limitation Law (Imo State) 1994 no action shall be brought by any person to recover land after the expiration of ten years from the date on which the right of action accrued to him.
2. ERROR IN LAW
The learned trial Judge erred in Law in holding that the Plaintiff/Respondent’s suit was not one for recovery of land to qualify for the application of the Limitation Law (Imo State) 1994.
PARTICULARS OF ERROR:
1. By the writ of summons the Plaintiff/Respondent claimed a declarative relief of entitlement to the land in dispute.
2. The Plaintiff/Respondent claimed damages for trespass.
3. The state of evidence of parties and witnesses showed that the Appellant had been in possession of the land in dispute, which the Plaintiff/Respondent sought to recover.
4. The judgment is against weight of evidence.
The Appellant then indicated at paragraph 4 of the Notice of Appeal, that he will file more Grounds of Appeal upon receipt of the Record of Appeal. He however did not file such additional grounds of appeal.
In obedience to the Rules of this court, parties filed and exchanged Briefs of Argument. The Appellant’s Brief of Argument was dated the 19/11/2008, and deemed filed the 19/3/2010 vide Motion on Notice dated the 19/11/2008 and filed 21/11/2008. The Respondent’s Brief of Argument was dated 09/01/2012 and filed on the 05/4/2012 by leave of this court granted on the 04/4/2012, vide motion on Notice dated 9/01/2012 and filed the 13/2/2012. The Appellant also filed a Reply Brief to the Respondent’s Brief of Argument. It was dated 27/4/2012 and filed the 30/4/2012.
At the hearing of this appeal on the 28/5/2012, the parties adopted their respective Briefs of Argument as their Arguments in this appeal.
From the three Grounds of Appeal, the Appellant formulated three issues for determination as follows:
1. Was the Respondent’s claim to the disputed land not statute-barred and extinguished and his claims ought to be dismissed?
2. Was Respondent’s claim not one for recovery of land which he lost possession of in 1982 when the Defendant placed carpenters thereon?
3. Whether on the preponderance of evidence the Appellant was not entitled to the judgment of the court as against the Respondent.
The Respondent did not formulate any issue of his own, but argued the appeal on the issues nominated by the Appellant. He however attacked the Grounds of Appeal and the issues distilled therefrom, by way of Preliminary Objection which he argued at pages 6-7 (paragraphs 5.01 -5.02) of the Respondent’s Brief of Argument. I shall resolve those preliminary issues before proceeding with the main appeal, if need be.
Learned counsel for the Respondent cited the cases of CHIMA v. UBA PLC (2010) 18 W.R.N. 1 at 5 ratio 2 and OLUFEAGBA v. ABUR-RAHEEM (2010) 17 W.R.N. pg.23 ratio 13 to submit that, issues for determination must be distilled from Grounds of Appeal and which Grounds must attack the ratio decidendi of the judgment, and not anything said by way of obiter dicta. That Grounds 1 and 2 were not attack on the ratio decidendi of the judgment, as the issue of the suit being statute-barred was not espaused and canvassed in the lower court. That they were not brought to the notice of the parties in the usual adversarial procedure, but raised at the address stage by counsel for the Defendant. He further contended that, the Grounds of Appeal attacked what was not evidence before the court, or the findings or errors in law. It was therefore submitted that, Grounds of Appeal having not arisen from the judgment of the court, the validity of the issues(s) raised therefrom for determination, are incompetent and liable to be struck out. The case of GARUBA v. OMOKHODION (2011) 33 W.R.N. pg.1 at 9 ratio 3, was cited to urge us to strike out Grounds 1 and 2 of the Notice of Appeal, and the issues formulated therefrorn. That though, the learned trial Judge made statement regarding whether the suit was statute-barred or not, it did not form any ratio decidendi in the judgment appealed against. See also PHARMA DEKO PLC v. N.S.I.T.F.M.B. (2011) 35 W.R.N. pgt.76 at 80 ratio 1.
It was further contented by the Respondent that, issue 3 is not distilled from any Ground of Appeal, as that Ground is an omnibus Ground. That it is trite law that, an omnibus Ground of Appeal cannot be used to raise an issue of law. He submitted that evaluation of evidence is a matter of law, and thus an omnibus Ground cannot be used to attack a specific finding made by a lower court on a specific issue. The cases of FED. MINS. OF HEALTH v. COMET SHIPPING AGENCIES LTD. (2010) 13 W.R.N. pg.1; ORJI v. ORJI (2011) 36 W.R.N. pg.111 and GARUBA v. OMOKHODION (supra) were cited in support. Learned counsel for the Respondent then submitted that, Appellant issue 3 dwelled on and canvassed pure law, and should therefore be struck out.
Learned counsel for the Appellant, while conceding that issues for determination must flow from Grounds of Appeal, submitted that Grounds 1 and 2, upon which issues 1 and 2 were formulated, were attack on the ratio decidendi of the judgment appealed against. He drew our attention to pages 93-94 of the record of appeal, where the lower court stated that: “I hold that the action of the Plaintiff is not statute-barred”, to contend that, the issue of the Respondent’s action being statute-barred was profusely canvassed before the lower court. That the Appellant raised the issue of the action being statute-bared in paragraph 2 of the statement of defence. He submitted that the Respondent never filed a Reply to deny that averment, and the Appellant canvassed the issue in his Written Address at pages 56-57 of the record of appeal, while the Respondent did not address on the issue in his Written Address before the lower court. It was therefore submitted that since it is an issue of jurisdiction, it can be raised at any time, even for the first time in this appeal. We were then urged to discountenance the arguments of the Respondent.
On the omnibus Ground of Appeal, learned counsel for the Appellant, submitted that the argument of the Respondent on that issue is not the correct position of the law. The case of ANYAOKE v. ADI (1986) 3 NWLR (Pt.31) pg.731 was cited in support.
It is the law which need no re-statement that, a Ground or Grounds of Appeal are to represent an Appellant’s complaint against a decision of a lower court which he is dissatisfied with, and which complaint he wants the appellate court to remedy. That being so, a ground of appeal must have its roots in the judgment appealed against. A ground of appeal must therefore arise from or relate to and be a complaint against the ratio decidendi of the judgment, and not be based on a mere expression of opinion of the trial Judge or statements made by him obiter or in passing in the course of the judgment. Any ground of appeal premised on an obiter dictum or dicta of the trial Judge, as opposed to the ratio or reason for the decision is invalid and liable to be struck out. In likewise, any issue formulated from such incompetent ground of appeal, would also be invalid, and suffer the same fate as the ground of appeal from which it is distilled. see BORISHADE v. N.B.N. LTD. (2007) 1 NWLR (Pt.1015) pg. 217; C.C.B PLC v. EKPERI (2007) 3 NWLR (pt.1022) pg.493; YADIS (NIG.) LTD. v. G.N.I.C. LTD. (2007) 4 NWLR (Pt.1055) pg.584 at pp.598- 599 and ABUBAKAR v. B. O. & A.P. LTD. (2007) 1 NWLR (Pt.1066) pg.319. An appellate court can therefore only entertain issues arising from grounds of appeal which can be traced to the pleadings of the parties on issues which the parties have joined issues on and the trial court had decided on the issue in its judgment. see A.S.C.F. LTD. v. I.S.C.M.A. LTD. (2007) 4 NWLR (Pt.1024) pg.270 at 280 paras. D-H.
In the instant case, the Appellant pleaded at paragraph 2 of the statement of claim, that:
“The Defendant shall contend and raise by way of preliminary point of law that the plaintiff’s suit is statute-barred not having been commenced within the statutory limitation period.” Though the Appellant did not raise the issue by way of a preliminary objection before the hearing of the suit, he raised same in his written Address filed before the trial court. Having raised the issue of statute-barred which has a collateral effect on the jurisdiction of the court to hear the case, I am of the view that the issue was properly raised before the trial court. In any case, he had raised same in his statement of defence, thereby giving notice to the Respondent that the issue of his claim being statute-barred will be raised at the trial. The issue of the Respondent’s claim being statute-barred was also raised and canvassed by the Appellant in his Written Address, but the Respondent failed to respond on it. However, the learned trial Judge dutifully made findings and pronounced on the issue when he stated at page 93 lines 11-26 and at page 94 lines 1-2 of the record of appeal that:
“In paragraph 2 of the Statement of Defence the Defendant said that he would “raise by way of a preliminary point of law that the Plaintiff/s suit is statute-barred not having been commenced within the statutory limitation period.”
During the trial defence counsel failed to raise the preliminary objection. The Defendant did not give such evidence as would lead to the inference that he contended that the action is statute-barred. However, in his address defence counsel raised it as the 1st issue for determination by the court. He addressed the court extensively on the issue and quoted authorities to support his contention.
In my humble view, he did not raise the preliminary objection. However, since it is a point of law I have decided to deal with the Defendant’s issue 1 very briefly.”
It is clear that the learned trial Judge observed that the Defendant/Appellant neither raised the issue of the Plaintiff/Respondent’s action being statute-barred before the trial, nor led evidence thereon, but concluded that since the issue raised was on point of law, it was proper for him to consider same. Accordingly, he proceeded to consider the issue at page 94 lines 3-13 and held that the action of the Plaintiff/Respondent is not statute-barred. By that holding therefore, I am of the strong view, and do hold that the issue of the Respondent’s action being statute-barred was an issue canvassed at the trial. It was also pronounced upon by the trial court, and therefore forms a ratio decidendi in the judgment of the trial court.

On the second leg of the preliminary objection which is against the omnibus Ground of Appeal raised as Ground 3 in the Appellant’s Notice of Appeal. It is well settled law that, an omnibus ground of appeal, is a ground of appeal which complains that the judgment of the lower court is against the weight of evidence. It is normally couched in general terms. Where an omnibus ground is relied upon, it implies that the judgment of the trial court cannot be supported regard having had to the weight of evidence adduced by the successful party or that the trial court wrongly accepted evidence or that the inference it drew and the conclusion it reached at based on the accepted evidence before it cannot be justified. It is therefore a ground which in its essence questions the evaluation of the evidence led before the trial court. As erroneously contended by learned counsel for the Respondent, an omnibus ground of appeal cannot be used to raise an issue or issues of law. An omnibus ground is therefore regarded as a ground of fact. See NKWOCHA v. MTN (NIG.) COMM. LTD. (2008) 11 NWLR (Pt.1099) pg.439; OPUIYO v. OMONIWARI (2007) 16 NWLR (Pt.1060) pg.415; LAGGA v. SARHUNA (2008) 16 NWLR (Pt.1114) pg.427, F.M.H. v. C.S.A. LTD. (2009) 9 NWLR (Pt.1145) pg.193; ADERIBIGBE v. ABIODOYE (2009) 10 NWLR (Pt.1150) pg.592 and BUWANHOR v. BUWANHOT (2009) 16 NWLR (Pt.1166) pg.22. Since it implies that the judgment of the trial court cannot be supported by the weight of the evidence adduced by the successful party or that the trial court either wrongly accepted evidence or drew wrong inferences or conclusions from the evidence adduced at the trial, it can sustain an appeal. It is clear therefore that the objection of the Respondent to the Ground 3 (omnibus Ground) of the Notice Appeal cannot be sustained.
On the whole therefore, the preliminary objection(s) raised by the Appellant has no merit. It is accordingly over-ruled and dismissed. That now brings me to the main or, substantive appeal. Upon a careful consideration of issues 1 and 2 as formulated by the Appellant, I am of view that the two issues over-lap. In that respect, I shall treat the two issues together, before proceeding to consider issue No. 3.
Arguing issue No.1, learned counsel for the Appellant contended that the Respondent’s suit was statute-bared and his claims extinguished and therefore ought to be dismissed. He referred to paragraphs 12 and 14 (2) of the Respondent’s Statement of Claim, and paragraph 2 of the Appellant’s Statement of Defence to submit that the Respondent’s claim was statute-barred. That the interpretation given to Section 3 of the Limitation Law of Imo State, 1994 by the learned trial Judge is misconceived. He cited the case of EGBE v. ADEFARASIN (1987) 1 NWLR (Pt.47) pg.1 at 20 per Oputa, JSC on the relevant date for determination of the period of limitation. He therefore submitted that the wrong the Respondent alleged gave him the cause of action was the placing on the land in dispute of carpenters by the Appellant in 1982. That the Respondent took out the writ of summons on the 05/4/2000 which is eighteen (18) years after the cause of action arose. It was accordingly submitted that, looking at the date the cause of action arose, and the date the Respondent took out his writ of summons, that action was filed out of the time legally permitted by the Limitation Law (supra). He then cited the cases of AYENI v. A.G. & COMM. OF JUSTICE, EKITI STATE (2002) FWLR (pt.110) pg.1781, YARE v. NWUKU (1995) 5 NWLR (Pt.394) pg.129 at 148 and AJIBONA v. KOLAWOLE (1996) 45 LRCN pg.2518 to further submit that when the Respondent instituted the suit on 5/4/2000, the cause of action had already become stale, and the only proper order the lower court ought to have made was an order dismissing or striking out the entire suit.
Learned Appellant’s counsel also proceeded to contend in further argument on this issue, as his issue No. 2 that, the Respondent’s suit was one for the recovery of land which qualifies for the application of Section 3 of the Limitation Law of Imo State, 1994. It was then submitted that, from the state of pleadings and evidence, the Appellant has been in possession of the land through the carpenters he put thereon between 1982 and 2004, which is a period of 22 years, and collecting rent therefrom. That the trial court having found that the Appellant was in possession, it was wrong for it to hold that the Respondent’s suit was not one for the recovery of land. That the Appellant has been in physical control of the land in dispute for at least 22 years, and therefore, only an order court of competent jurisdiction could revert his position, and that, that is what the Respondent’s suit sought to achieve. We were then urged to hold that, the Respondent’s suit was one for recovery of land and therefore qualified for the application of Section 3 of the Limitation Law of Imo State, 1994.
Learned counsel for the Respondent contended that the Limitation Law of Imo State is inapplicable to this case, having regard to the claim before the court, as the right of action claimed is not one within the purview of the Limitation Law (supra) as cited by the Appellant, because it is not a claim for recovery of possession. He cited the cases of OGUEJIOFOR v. NWAKALOR (2011) 34 W.R.N. pg.13 and OLAYIWOLA v. OKE (2002) 48 W.R.N. pg.71 to submit that, it is clear from the pleadings of the Respondent in the statement of claim that the Respondent’s claims were for declaration of title, damages and injunction. That the Appellant over-simplified where the Limitation Law of Imo State is applicable in determining whether a cause of action is statute-barred.
It is further submitted by learned counsel for the Respondent that, it is the law that in any claim for trespass coupled with a claim for injunction, title of the parties to the land is automatically put in issue. He then submitted that the court below was right to have given due attention to the all important questions of which of the two, between Respondent and the Appellant, established his title to the land in dispute, and therefore protection under the Limitation Law did not avail the Appellant. The case of MORENIKEJI v. ADEGBOSIN (2003) 25 W.R.N. pg.1 was cited in support. That it was due to the Appellant’s apparent misunderstanding of the situation that led him to make the error of dwelling his case on when the period limitation will begin to run. That the limitation period must be applicable in any given situation or case, before one begins to consider when the period of limitation began. It was therefore submitted that Section 3 of the Limitation Law (supra) only barrs causes in which the claim is for recovery of possession, and as the Respondent was not claiming for recovery of possession but for declaration of title to the land in dispute, trespass and injunction, the Limitation Law (supra) would not apply. We were then urged to resolve the issue in favour of the Respondent and against the Appellant.
To resolve this issue, it is necessary to determine what the cause of action is in view of the provisions in Section 3 of the Limitation Law of Imo State, 1994. This Section provides as follows:
“3. No action shall be brought by any person to recover land after the expiration of ten years from the date on which the right of action accrued to him or, if it first accrued to such person through whom he claims, to that person.”
It is clear from the wordings of this provision that the Limitation here applies to cases where the cause of action is for the recovery of land. It is therefore necessary to determine what the cause of action of the Respondent is in this case. In order to determine the nature of the cause of action in any given case, the court will have recourse to the writ of summons and the statement of claim. To that end, the statement of defence is immaterial. See IWARA v. ITAM (2009) 17 NWLR (Pt.1170) pg.337; OGUNDIPE v. N.D.I.C. (2009) 1 NWLR (Pt.1123) pg.473; MUOMAH v. SPRING BANK PLC (2009) 3 NWLR (Pt.1129) pg.533; OSIGWE v. P.S.P.L.S. MGT. CONSORTIUM LTD. (2009) 3 NWLR (Pt.1128) pg.378 and CHKWU v. AMADI (2009) 3 NWLR (Pt.1127) pg.56.

In the same vein, in determining whether or not an action is statute-barred, the relevant processes to consider are the writ of summons and the statement of claim. See also WILLIAMS v. WILLIAMS (2008) 10 NWLR (Pt.1095) pg.364; MILAD; EKITI STATE v. ALADEYELU (2007) 14 NWLR (Pt.1055) pg.619; F.R.I.N. v. GOLD (2007) 11 NWLR (Pt.1044) pg.1; YAKUBU v. NITEL LTD. (2006) 9 NWLR (Pt.985) pg.367 and MBONU v. NIG. MINING CORP. (2006) 13 NWLR (Pt.998) pg.659. In the instant case, the Respondent as Plaintiff at the trial court pleaded and claimed as follows:
“(14) WHEREFORE the Plaintiff has suffered damages, and claims against the Defendant as follows:
(1) A DECLARATION of the Honourable Court that the Plaintiff is entitled to “STATUTORY RIGHT OF OCCUPANCY” in respect of a parcel of land known as and called PLOT NUMBER 47, Agiriga Road, Okigwe, situate Okigwe Urban, within the jurisdiction of the Honourable Court.”
He further claimed for damages for trespass committed on the land by the Appellant and an injunction to restrain further acts of trespass by the Appellant on the land he claims, and which claims, the Appellant disputes. The other facts pleaded by the Respondent at paragraphs 11, 12 and 13 of the Statement of Claim are only a narration of the trespassatory acts of the Appellant on the land. They are not meant as admission that the Appellant legally possessed the land. The other facts pleaded at paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Statement of Claim are meant to define the land and establish the title of the Respondent to the land he claims. It is therefore paragraph 14 that defines the nature of the Respondent’s claim before the trial court.
In determining whether or not the limitation period applies in any particular case, regard must first be had to the nature of the action, before one can go further to look at the law which prescribes the period within which action may be brought in respect of the particular cause. Thus in the case of Section 3 of the Limitation Law of Imo State, 1994, where the action is not for recovery of land, the limitation period prescribed therein will not apply. See OGUNLADE v. ADELEYE (1992) 8 NWLR (Pt.206) pg .409. In the instant case, it is clear from the pleadings of the Respondent at paragraph 14 (1), (2) and (3) of the Statement of Claim that the claim was for declaration of title to the land in dispute, damages for trespass and injunction restraining the Appellant from further trespassing onto the said land. It is therefore a misconception for the Appellant to contend that the Respondent’s action was for recovery of possession. It did not need any legal hair splitting to arrive at that conclusion. I therefore hold that the learned trial Judge was right when he held that the statute of limitation of Imo State does not apply as to defeat the Respondent’s claim. Issues I and 2 are thus resolve against the Appellant and in favour of the Respondent.
Issue No. 3 is whether on the preponderance of evidence the Appellant was not entitled to the judgment of the court, as against the Respondent. It should be pointed out that the Appellant did not counter claim. In that respect, I am of the view that the issue to be determined should be whether on the preponderance of evidence adduced before the trial court, the Respondent was entitled to the judgment of the trial court. This is because, in a claim for declaration of title, the Defendant is not entitled to the judgment of the court where he has not counter-claimed.
Be that as it may, it is obvious that, by issue 3, the Appellant is questioning the evaluation of the evidence and ascription of probative value by the trial court of the evidence adduced at the trial court. The law is that, it is the primary responsibility of the trial court who saw, heard and assessed the witnesses who testified before him to evaluate the evidence and ascribe probative value to such evidence. In other words, the duty of evaluating and ascribing probative value to all relevant oral and documentary evidence lies within the province of the trial court who had the advantage of seeing and hearing the witnesses. Accordingly, where the trial Judge had diligently and justifiably evaluated and appraised the facts, it will not be the business or duty of the appellate court to substitute its own view for that of the trial court. appellate courts are usually reluctant to interfere where the trial court has properly appraised and evaluated the evidence presented before it. See P.T.F. v. W.P.C. LTD. (2007) 14 NWLR (Pt.1055) pg.478; OMAYE v. OMAGU (2008) 7 NWLR (Pt.1087) pg.461; ISMAIL v. STATE (2008) 15 NWLR (Pt.1111) pg.593 and GAGARAU v. PASHIRI (2006) 1 NWLR (pt.962) pg.521.

Where the trial court failed to evaluate or properly evaluate the evidence led before it, then this court can do what the trial court ought to have done and accordingly evaluate the evidence on record. What this court will consider is whether the trial court made proper findings and thus reached the correct decision based on the facts. The factors this court will consider are:
a) Whether there is sufficient evidence to sustain the judgment; or
b) Whether the trial court failed to make proper use of the opportunity it had of seeing, hearing and observing the witnesses; or
c) Whether the findings of fact made by the trial court can be regarded as resulting from the evidence adduced before it; or
d) Whether the trial court has drawn the right conclusion from accepted evidence, or has taken the right view of the evidence adduced before it; or
e) Whether the findings of the trial court are justified in the sense that they flow from accepted evidence or are supported by the evidence before it.

It is the party that complains that the trial court did not evaluate or properly evaluate the evidence, that has the duty to show or demonstrate from the evidence on record, how the judgment of the trial court would be found to be wrong if the error or omission or failure by the trial court is corrected. See AKINDIPE v. STATE (2008) 15 NWLR (Pt.1111) pg.560; P.T.F. v. W.P.C. LTD. (supra) at 498 paras. A-E; MAFINISEBI v. EHUMA (2007) 2 NWLR (Pt.1018) pg.385 and ANYAFULU v. AGAZIE (2006) 5 NWLR (Pt.973) pg.260.
Now, arguing on this issue, learned counsel for the Appellant contended that, the Respondent testified that the land in dispute was granted to his father in 1977 and that the grant was embodied in a document, but did not tender the document at the trial. That in fact, the learned trial Judge held that, in an outright sale under native law and custom (which applies to a grant) conveyance or written contract is unnecessary, and therefore, absence of the written document which merely recorded the transaction is not fatal to the claim. It was however submitted by learned Appellant’s counsel that, in the instant case, since the alleged grant was reduced into a document, by Section 132 (1) of the Evidence Act (now Section 128 (1) of the Evidence Act, 2011), it is only the document of the alleged grant that can speak. That on the contrary, the Appellant testified that the land in dispute was part of a larger tract of land which Umurido Land Committee granted to his father in 1950, which document of sale was tendered in evidence as Exhibit D2. That if the version of the Appellant and that of the Respondent are placed on the imaginary scale, the evidence of the Appellant vide Exh. D2 preponderates in his favour.
Learned Appellant’s counsel went to submit that, a close look at Exh. D2 will reveal that the learned trial Judge was in error in his finding that the dimension of the land sold to the Appellant’s father was 50’x 100′, as Exh.D2 never referred to the dimension of the land sold to the father of the Appellant. That the finding was not based on the evidence before the court and therefore the conclusion drawn by the learned trial judge was grossly at variance with the evidence before him. That the learned trial judge having failed to properly evaluate the evidence, we were urged to interfere. The cases of KATE ENTERPRISES LTD. V. DAEWOO (NIG.) LTD. (1985) 2 NWLR (pt.5) pg.116 and ONYEMAECHI v. NWOHUMO (1992) 9 NWLR (Pt.265) pg.372 were cited in support.
It is the further contention of learned counsel for the Appellant that, there was no legally admissible evidence to show how the Respondent came to own the land in dispute, since the document of the alleged grant was not tendered in evidence. That the Respondent testified that, Umurido Land Committee granted the land in dispute to his father in 1977, whereas the Appellant’s contention was that, the land in dispute was part of the land granted to his father by the said Umurido Land Committee in 1950. Learned Appellant’s counsel therefore submitted that, the question whether the land in dispute was a part of the land granted the Appellant’s father in 1950 falls within the domain of traditional evidence which could have been received by examining recent acts of ownership by the parties in relation to the land in dispute. That the learned trial judge having failed to evaluate such evidence before him, before reaching his conclusion thereon, we were urged to do so.
Learned counsel for the Respondent cited the case of AKINGBADE v. OYEYIPO (1964) 1 ALL NLR pg.154 at 159, to submit that, in an outright sale under native law and custom, which applies to a grant of land, a written conveyance or contract is unnecessary. That in the instant case, which was a transaction between Umurido Community and the Respondent who is an indigene of the said Community, cogent and credible evidence of PW2 and PW3 was sufficient to prove and indeed proved the grant of the land in dispute to the Respondent’s father. That absence of the document which merely recorded the transaction is therefore not fatal to the Respondent’s case. It was then submitted that, Section 132(1) of the Evidence Act (now Section 128 (1) of the Evidence Act, 2011) only seeks to ascertain the contents of a grant and not whether there is indeed a grant. That in the instant case, what is relevant to the case of the parties is whether there was a grant, which was proved by the evidence adduced by the Respondent. He drew our attention to the testimonies of the PW1 at page 26 paras. 20-25, PW2 at pages 33 lines 10-25 and 30 and page 34, and that of the PW3 at page 38 lines 5-15 of the record of appeal, and which testimonies he contends were neither challenged nor controverted, to submitted that the Respondent proved the grant of the land in dispute in his father. It was further submitted that the evidence of the PW2 is especially crucial in that he testified that he is a member of the original land owners and that he was amongst the persons that physically went and made the grant of the land in dispute to the father of the Respondent. That this piece of evidence was never controverted, and therefore there is no necessity of any document establishing such grant to the Respondent’s father. That the PW3 gave similar evidence.
Learned counsel for the Respondent further contended that, on the other hand, the evidence of the Appellant and his witnesses concerning the alleged grant of land in dispute to his father is not credible at all. That the appellant tendered a Survey Plan No. AS.A/IMD/2000 dated 07/9/2000 as Exhibit D1, and that the learned trial judge was entitled to read about the measurement or size of the land allegedly granted the Appellant’s father. Similarly, the Appellant tendered his plan as Exhibit D2 which is the document evidencing such sale, and the trial court was also entitled to read and interpret both Exhibits together in determining the Appellant’s case. He also referred to the testimony of the Appellant at pages 43 paras. 15-20, 42 para. 5, 45 para. 25 of the record, to submit that the trial court was right and correct when it held that, a plot measuring 50ft by 100ft is not and cannot be a double plot. That in any case it is evident from Exh. D2 that, what was sold to the Appellant was “a plot” and not “plots”.

It is also contended by learned counsel for the Respondent that, the averment and evidence of the Respondent that what was sold to the Appellant’s father was Plot No. 3 (now No.5) Awka Street, Okigwe Urban and not No. 47 Agiriga Road, Okigwe was not challenged, especially when the Appellant did not counter-claim against the Respondent. That the Respondent surveyed the land in dispute and proceeded to name the plot number of the land in dispute. That the Appellant having not counter-claimed, was only required to defend the suit, by answering the specific claim of the Respondent, but left the turning issue that what was sold to his father was No. 3 (now No. 5) Awka Street, and not No. 47 Agiriga Road, Okigwe, and began answering that the land in dispute was granted to his late father. That this is material in the face of the Respondent’s case that, the land in dispute is No. 47 Agiriga Road, Okigwe which is a plot of land different and distinct from No. 3 Awka Street, Okigwe. It was then submitted that the cases of KATE ENTERPRISES LTD. V. DAEWOO (NIG.) LTD. (supra) and ONYEMAECHI v. NWOHUWO (supra) cited are not applicable to the facts of this case, as the learned trial judge correctly evaluated the evidence adduced before him, and rightly entered judgment for the Respondent. We were then urged to resolve this issue against the Appellant and in favour of the Respondent.
The reply of the Appellant on this issue is at pages 4-5 paras. 2.2-.2.3 of the Appellant’s Reply Brief of Argument. Therein, the Appellant would appear to re-argue or expatiate on his argument in his main brief of argument on this issue. That is not the purpose of a Reply Brief. Though, I am entitled to ignore such argument as contained in the Appellant’s Reply Brief, I shall however consider same in the interest of justice.
In the Reply Brief of Argument, the Appellant conceded that in an outright sale of land under native law and custom, written contract is unnecessary, but contended that, where it is shown that the sale transaction was reduced into writing as claimed by the Respondent, oral evidence of same is excluded. He cited Section 128 (1) of the Evidence Act, 2011 and AKINGBADE v. OYEYIPO (supra) cited by Respondent’s counsel in support. That the document did not merely record the transaction, but it is the only voice that would declare what was done, the dimension of land granted the Respondent’s father and when the transaction took place. He then submitted that, the absence of that document was therefore fatal to the case of the Respondent.
It is also contended by learned counsel for the Appellant that, the Respondent’s counsel sought to paint a picture of two pieces of land that are far-flung from each other. That Exhs. P1 and D2 which are the Survey Plans of the land in dispute tendered by the parties, clearly supports the clear and unambiguous delineation that the land in dispute is directly behind the Appellant’s house. That both lands are contiguous and stretch from one end of a road called Agiriga Road, and Awka Street. That words of 50ft by 100ft were imported into the proceedings by the trial court, as nowhere in the record of appeal is it stated that the Appellant’s father was sold “a plot of land measuring 50ft by 100ft”, and that Exh. D2 is, clear on the issue. We were then urged to disregard the arguments in the Respondent’s Brief of Argument and to allow the appeal.
Before I proceed, I wish to reiterate that, the Respondent’s claim before the trial court was principally for a declaration that he is entitled to “a Statutory Right of Occupancy” over the piece of land known as No. 47 Agiriga Road, Okigwe Urban in Okigwe Local Government Area of Imo State. In that respect, Sections 131, 132 and 134 of the Evidence Act, 2011, places the burden on him to lead evidence showing that on the strength of his case, he is entitled to the declaration sought. This is so because declaratory reliefs are granted on the strength of the evidence of the party seeking for the relief, and not on the weakness of the defence. They are not granted even on the basis of admission by the adverse party. In the determination of the claim, a Defendant who has not counter-claimed only has the duty to defend. Accordingly, a consideration of the Defendant’s case or its weakness does not arise until the Plaintiff has led evidence which prima facie show that he is entitled to the declaration sought. However, sometimes the fact in the Defendant’s case may support that of the plaintiff and in that instant, the Plaintiff can rely on that aspect of the Defendant’s case to strengthen his case. See KODILINYE v. ODU (1935) 2 W.A.C.A. pg.336; ODOFIN v. AYOOLA (1934) 11 S.C. pg.72; BELLO v. EMEKA (1981) 1 S.C. pg.101; AKINTOLA v. OLUWO (1962) 1 S.C.N.L.R pg.352; WOLUCHEM v. GUDI (1981) 5 S.C. pg.291; ADELAJA v. FANOIKI (1990) 2 NWLR (Pt.131) pg.137; GANKON v. UGOCHUKWU CHEMICAL IND. LTD. (1993) 6 NWLR (Pt.297) pg.55 and ALECHENDU v. OSHOKE (2002) 9 NWLR (Pt.773) pg.521 at 535. The burden of leading or adducing such evidence is discharged upon preponderance of evidence or balance of probabilities.
In the instant case on appeal, upon a consideration of the arguments of counsel on this issue, the crux of the Appellant’s complain is that the Respondent did not prove the grant of the land in dispute to his father. That since it was in evidence that the transaction was reduced into writing and as such document was not tendered in evidence, there is no evidence to establish such grant to the Respondent. That oral evidence of such grant was not admissible in evidence of the existence of a document evidencing same. The Respondent however contends that the testimonies of PW2 and PW3 who are members of Umurido Community, the original owners and grantors of the land, and also witnesses to the transaction was sufficient to establish such grant to the Respondent’s father.
It is the settled law that in a claim for declaration of title to land, the first thing a claimant must prove is the area of land to which his declaration of title relates. In other words, the claimant must plead and lead credible evidence to show the exact and precise identify of the land on which he hinges his claim. This is because, a declaration of title can only be granted over a piece of parcel of land which can be precisely defined and therefore identifiable, and the boundaries thereof clearly set out. See HENSHAW v. EFFANGA (2009) 11 NWLR (Pt.1151) pg.65; EKPEMUPOLO v. EDREMODA (2009) 8 NLWR (pt.1142) pg.166; UKAEGBU v. NWOLOLO (2009) 3 NWLR (pt.1127) pg.194 and UDECHUKWU v. EZEMUO (2009) 14 NWLR (pt.1162) pg.525. However, the necessity of the claimant to lead evidence on the identity of the land will become an issue at the trial, if and only if, the Defendant has made it so in his statement of defence. Thus, where the identity of the land is not disputed, and the land is known to both parties, a survey plan may not be necessary or for the claimant to lead such evidence as to the identity of the land.
See NWANKWO v. OFOMATA (2009) 11 NWLR (Pt.1153) pg.496; EKPEMUPOLO v. EDREMODA (supra) at pg.195; and ANYANMU v. UZOWUAKA (2009) 3 NWLR (Pt.1159) pg.4451.
In the instant case, the Respondent as Defendant at the lower court, pleaded at Paragraphs 5 and 6 that:
“5.This plot, now in dispute, known as and called Plot 47 Agriga Road, Okigwe Urban, was given to the Community. The said Plot is verged Red and is more particularly described on the plaintiff’s survey Plan No. 06/2000 drawn by a licensed dated (sic) 17/4/2000, filed with the Plaintiff’s statement of claim. This survey plan, (with the future shown thereon), is hereby pleaded and will be found upon at the trial of this suit. The Plaintiff got this plot of land by inheritance from his late father.
6. The said Plot of land, now in dispute, is bounded by Ogirisi Trees and other lands as follows:
(a) At the North by Agiriga Road;
(b) At the South by Umurido Road;
(c) At the East by J. C. Okoro’s uncompleted upstairs;
(d) At the West by Chief Agriga’s land.
Features such as Ogirisi trees, Ube Tree, Bananas, Avocado pears, Temporary shed, Olugbu Tree, Mango tree, on the land are clearly delineated on the Plaintiffs survey Plan No. 612000 herewith pleaded and annexed.”
At the hearing of the suit the Plaintiff gave evidence of the features pleaded in the statement of claim, as PW1. He denied under cross-examination that the land he claims stretches to No. 3 Awka Street, Okigwe, which is the land the Appellant inherited from his father and now lives.
The Appellant as Defendant at the lower court pleaded at Paragraph 10 of the statement of defence that he denied the averments of the Respondent with respect to the boundaries of the land as pleaded at Paragraphs 5 and 6 of the Statement of Claim. He pleaded at Paragraph 9, that the Plaintiff/ Respondent’s survey plan is not a true representation of the Defendant/Appellant’s land. He had earlier pleaded at Paragraphs 6 and 8 of the Statement of Defence as follows:
“6. In further answer to Paragraph 3 thereof the defendant avers that the land in dispute is for the time being known as and called Plot No. 3 Awka Street Okigwe and the portion of the land that stretches up to Agiriga Road axis is yet to be numbered due to lack of structural development by the defendant.
8. The defendant’s plot of land which is the land in dispute is bounded by the following land lands; land of Michael Igwe, land of D. C. Ezeala, land of one Sariki, land of J. C. Okoro, land of Abel Agiriga and land of Cyril Odu. The defendant’s land abuts Awka Street and Agiriga Road. The defendant’s land is shown on Defendant’s Plan No. AS.A/IMD15/2000 and prepared at the defendant’s instance by Licensed surveyor, Chief J. A. Agugua and filed with this statement of defence and same is hereby pleaded and shall be founded upon at trial.”
At the trial, he testified as the D.W.1 and tendered the survey plan which was admitted in evidence as Exh. D1. He confirmed that the land he disputes upon is called No. 3 Awka Street, and that No. 3 Awka Street and 47 Agiriga Road are just one common or stretch of land. That when his father bought the land in 1950, he planted a tree at each end of Awka Street and Agiriga Street, and that the land his father bought encompasses both Awka Street and Agiriga Road. He admitted that he now lives at No. 3 Awka Street, which is not part of the land in dispute.
After evaluating the evidence, the learned trial judge held that:
“I read Exhibit D2. The document was made in 1950. It did not say the land to which it relates-whether No. 3 Awka Street or 47 Agiriga Road. On that score it has no probative value.
However, Exhibit 2 was quite clear on the fact that the dimension of the land sold to the Defendant’s father is 50′ x 100′.
Certainly a plot of land measuring 50′ x 100′ is not and cannot be a double plot. The story by the Defendant that his father bought a double-plot or that Awka Street stretches to and include s 47 Agiriga Road is not true. It is concocted story. I do not believe DW1 (defendant) and DW2 and DW3 whose evidence I had held does not help the Defendant.”
From the evidence adduced by the parties as evident on the record, it is clear that No.47 Agiriga Road and No.3 Awka Street are separate plots of land. I am not oblivious of the fact that the Appellant pleaded that the land his father bought stretches from No. 3 Awka Street to Agiriga Road, and that the part at Agiriga Road had not been numbered due to lack of structural development by him. The implication therefore is that, No. 3 Awka Street and the part he claims at Agiriga Street have distinct identities. The Respondent claims that the land he claims is numbered No. 47 Agiriga Road, Okigwe. It would appear that, that is the piece or parcel of land the Appellant disputes and claims that it is part of a stretch of land his father bought in 1950. The other implication is that, the Appellant’s father bought a double-plot.
The learned trial judge appraised Exh.D2 which is the instrument of purchase. He came to the conclusion that the said Exh. DZ is of no probative value in the determination of the identity of the land the Appellant claims his father bought, as it does now show whether it relates to No. 3 Awka Street or No. 47 Agiriga Road. No evidence was led by the Appellant to reconcile Exh. D2 with what he claims. Worse of all, apart from his ipse dixit, he did not call a single witness to testiff on the extent of land his father bought in 1950. I however agree with the Appellant that the trial court was wrong to have concluded that the land bought by his father was 50’x100′, as such evidence is not bome out of Exhibit D2 or the evidence on record. The closest to that is from the testimony of P.W2 who stated at page 35 lines 24-25, during cross-examination by Appellant’s counsel that the land in dispute is 50’x 100′.
The Respondent on the other had pleaded clearly and gave unchallenged and uncontroverted evidence of the land in dispute, which is at No. 47, Agiriga Road, Okigwe. He also named his boundary neighbours. He also tendered Exhibit “P1”, which is the survey plan of the land in dispute. The boundaries and features he pleaded in his statement of claim are vividly reflected on the survey plan. Though the Appellant also tendered his own survey plan as Exhibit “D1”, the boundaries and the features thereon are inconsistent with that reflected on the Respondent’s plan. The learned trail judge was therefore right when he held as follows:
“When Exhibit “P1” is compared with Exhibit “D1″, it will be found that Exhibit P1 shows with clarity the identity of the land in dispute. Therefore, the Plaintiff, in my view, has successfully established the identify of the land to which he claims.”
This finding and conclusion of the learned trial judge has not been appealed against. It is trite law that a finding of a court that is not challenged on appeal stands and therefore cannot be questioned. See DABO v. ABDULLAHI (2005) ALL FWLR (Pt. 255) Pg. 1039. I therefore hold that the Appellant was able to establish the identity of the land which he claimed.
The crucial issue which the Appellant complains against in this appeal had earlier been stated to be in respect of the finding Appellant proved the grant of the land to his father, from whom he inherited. The findings of the learned trial judge are at pages 104-105 of the record of appeal. Therein, the learned trial judge held as follows:
“The evidence marshaled by the Plaintiff and his witnesses show that the Plaintiff relied on grant of the land by traditional evidence. I believe plaintiff and his witnesses. He has succeeded in proving title by traditional evidence which is one of the ways of proving title to land. Defence counsel argued seriously that failure of the plaintiff to call one, at least of signatories to the document of grant to his father was fatal. He did not call any boundary man to testify. He did not call Chief Agiriga to give evidence that plaintiffs father leased the land to his father to establish a saw-mill. He said that the evidence of such person if called could have been against the plaintiff and relied on Section 149(d) of the Evidence Act.
S. 149(d) does not require a party to call a particular witness but to tender particular evidence. PW2 and PW3, as members of Umurido Land committee witnessed and took part in measuring out the land granted the plaintiff’s father. Their evidence on the point was not challenged in cross-examination. The lease of the land to Chief Agiriga was given in evidence by the plaintiff as PW1. He was not challenged in cross-examination and the court believed him.”
The learned trial judge proceeded to hold at page 105 lines 11-22 of the record as follows:
“It is settled that in out-right sale under native law and custom (and this applies to grant) conveyance or written contract is unnecessary. AKINGBADE v. OYEDIPO (1964) 1 ALL N.L.R. Pg. 154 at 159.
In this case which was a transaction between Umurido community and an indigene of Umurido, cogent and credible evidence of P.W.1, P.W.2 and P.W.3 can prove and indeed has proved grant to the plaintiff s father. Absence of the document which merely recorded the transaction is not fatal to plaintiff s case.”
Indeed, under customary law, a transfer of land either by way of sale, grant or other mode of transfer of title can be effected orally. Though a transfer of land under customary law made in writing is not invalid, writing or receipt evidencing such transfer is not a requirement for transfer of interest in land under customary law. The production of written document may strengthen a party’s case, but its absence will not ipso facto be injurious to a party’s claim, where he can prove his claim by oral evidence. See, ALAKE v. AWAWU (1932) 11 N.L.R Pg. 39; REG. TRUSTEES MUSLIM MISSION; HOSP. COMMITTEE v. ADEAGBO (1992) 2 NWLR (Pt. 226) Pg. 690.
The issue here is that, learned counsel for the Appellant contends that since there was evidence that the grant of the land to the Respondent was reduced into writing; the Respondent could not give evidence of the contents of that document. Further that, failure of the Respondent to call any of the signatories to that document was fatal to his case. Indeed, the Respondent and the P.W.2 and P.W.3 all testified that the grant or gift to the Respondent’s father was reduced into writing. However, the Respondent applied to tender same in evidence but was objected to by the Appellant, and the document was ultimately tendered for identification purposes only. The document is therefore not in evidence. It is my view, and on the authorities that, Section 128(1) of the Evidence Act, 2011 only prohibits any person to give evidence on the contents or terms of such document. It does not prohibit any person to give oral evidence of the existence of such document. Thus Section 128(3) of the said Evidence Act, 2011 provides that:
“Oral evidence of the existence of a legal relationship is not excluded by the fact that it has been created by a document, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or carried out.”
A careful consideration of the testimony of the Respondent who testified as PW1 and that of PW2 and PW3, clearly show that they testified only as to the fact that Umurido land committee granted the land No. 47 Agiriga Road, Okigwe to the Respondent by way of a gift, as a member of that community. None of them testified as to the terms on which the grant was made. Their testimony was to establish the existence of that relationship between the Respondent and the Umurido community. In that respect, their testimony did not breach Section 128(1) of the Evidence Act, but is admissible by virtue of Section 128(3) of the Evidence Act (supra).
As regards the failure of the Respondent’s to call any of the signatories to the document, I wish to first of all point out that the document itself is not in evidence. The rule stipulated under Section 167(d) of the Evidence Act, 2011 applies where a party withholds evidence and not where he fails to call a particular witness. A failure to call a particular witness, does not therefore translate to failure to call evidence. See H.M.S LTD v. FIRST BANK (1991) 1 NWLR (Pt. 167) Pg. 290 and ONWUJUBA v. OBIENU (1991) 4 NWLR (Pt.183) Pg.16. I therefore agree with learned counsel for the Respondent that failure of the Respondent to call any of the signatories to the agreement said to have been made between him and Umurido community is not fatal to his case.
On the whole therefore, I agree with the learned trial judge that the Respondent was able to prove the grant to his father of No. 47 Agiriga Road, Okigwe Urban, by the Umurido Land Committee. The P.W.2 and P.W.3 stated that they were present when the land in dispute was allocated to the Respondent’s father. The P.W.2 stated as follows:
“The plot in 47 Agiriga Road belonged to Umurido Ubaha Okigwe- the original owners. The Umurido Community allocated to Nze George Okechukwu on temporary agreement in 1977 the said plot of land. Other plots of lands before and after 47 Agiriga Road, were allocated to indigenes of Umurido and some sold to non-indigenes”
See page 33 lines 14-20 of the record of appeal. He also stated that he is a member of Umurido Lands Committee that allocated the land to the Respondent’s father. He then stated at pages 36 lines 13-16 of the record of appeal as follows:
“In 1977 the land was allocated to Nze George Okechukwu – plaintiff s father. I am aware of that and I was present then. I am not aware that the Land Committee invited the defendant.”
The PW3 stated in his evidence-in-chief at page 38 lines 11-16 as follows:
“The owners of the land are the people of Umurido village. They are the original owners of the land. George Okechukwu got the land in dispute as part of his share. He was an indigene of Umurido. I was present when the land was given to George Okechukwu.”
He then denied that the land in dispute was sold to the father of the Appellant. He also stated that he is a member of the lands committee in Umurido.
The P.W.2 and P.W.3 were never contradicted or controverted. In all these, the Appellant did not call a single witness to the sale to him of the land he disputes. He did not also call any of persons who sold the land to him. The evidence of his witnesses and Exhibit D2 tendered in evidence did not help his case at all. The end result is that the learned trial judge was right when he held that the Respondent proved his claim on the standard required by law. I agree with his appraisal of the evidence and his conclusion thereon. I see no reason to disturb the judgment delivered by him in this case.
It is for these reasons and the other reasons given in the lead judgment, that I agree that this appeal has no merit and should be dismissed. It is hereby dismissed by me. Accordingly, the judgment of the lower court in Suit No.: HO/5/2000 is hereby affirmed.
I abide by the order on costs.