KOBO & ORS v. BIAM (2021)

KOBO & ORS v. BIAM

(2021)LCN/15090(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, March 31, 2021

CA/MK/284/2013

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

ZERDOON KOBO 2. SALISU YAHAYA 3. SUNDAY DUEM 4. DANTALA AUDU 5. HASSAN AUDU HALIMUTUN 6. SHAIBU YAHAYA 7. SALISU BABANCHIKE 8. BALA SEI 9. HARUNA ADAMU 10. YAHAYA MOHAMMED 11. MOHAMMED GOMBE APPELANT(S)

And

BERNARD ATILE BIAM RESPONDENT(S)

RATIO

IMPORTANCE OF THE DUTY OF A PARTY CLAIMING TITLE TO LAND TO SHOW THE IDENTITY OF THE LAND IN DISPUTE IN RELATION TO THE BOUNDARIES

The law is settled that the first duty of a party claiming title to land is to show the identity of the land in dispute in relation to the boundaries. The description of the boundaries must be proved with exactitude, certainty and precision so as to ensure that the evidence adduced can lead a Surveyor to produce an accurate Plan of the land. In a nutshell, proof of ownership of land clearly means the modus an individual employs in the determination of his right in a land dispute. It is the protection and degree of control a person has over a parcel of land. A party who alleges claim and control over a piece of land must by law tender before the Court sufficient material evidence in black and white to show clearly the boundaries and identity of the land. The erudite law lord of the Apex Court per TOBI, JSC (as he then was) in the case of OKOKO VS. DAKOLO (2006) ALL FWLR (PT.336) 201 AT 239 has this to say on the evidence of boundary: “…Evidence of boundary is very important in land disputes because it is really the centre of the dispute. Once the boundary is known, the Court is in good position to determine the ownership, with the aid of other relevant evidence…” PER IGNATIUS IGWE AGUBE, J.C.A.

WAYS OF PROVING TITLE OR OWNERSHIP TO LAND

The Apex Court in D.O. IDUNDUN & ORS V. DANIEL OKUMAGBA (1976) LPELR-1431 (SC) set out the ways of proving title or ownership to land inter alia: By traditional evidence, by production of document of title; by proving acts of ownership and possession, by proving acts of long possession and enjoyment of land and by proof of possession of connected and adjacent land. It should be noted that the five ways of proving title to land are not mutually connected and the Court in BARTHOLOMEW ONWUBUARIRI & ORS V. ISAAC IGBOASOYI & ORS (2011) LPELR-754 (SC) opined thus: “That one can establish ownership by any of the five means and need not prove all. However, one can also decide to prove one’s title by using more than one way as stipulated above. See also OLOWOLAGBA V. BAKARE (1995) 4 NWLR (PT. 387) 116 AT 124; IDUNDUN V. OKUMAGBA (1976) 9-10 S.C 227; ATANDA V. AJANI (1989) 3 NWLR (PT. 111) 511 AT 535 and BALOGUN V. AKANJI (1988) 1 NWLR (PT. 70) 301.” In Nigeria, there are various documents relating to ownership of land which a Claimant needs to establish in order to establish the legitimacy of his/her ownership. These include Certificate of Occupancy, Deed of Assignment, Governor’s Consent, Survey Plan, Excision Document and Grant of Probate and Letters of Administration etc. PER IGNATIUS IGWE AGUBE, J.C.A.

POSITION OF THE LAW WHERE PARTIES DERIVE THEIR TITLE FROM A COMMON SOURCE OR GRANTOR

The law is settled that where parties derive their title from a common source or grantor, the principle of equity with regards to priority would serve as a working tool to ameliorate or quell the Issue that may have arisen. Per ONU, JSC at pages 14-15, paras. F-A in the case of SAMSON OWIE V. SOLOMON IGHIWI (2005) LPELR-2846 (SC) opined thus: “Indeed, where the Issue of priority of interest arises and the grant relates to the same parcel of land, then the first in time takes priority, (Qui prior est tempore potior est jure). See AWOYEGBE V. OGBEIDE (1988) 1 NWLR (PT. 73) 695; TEWOGBADE V. OBADINA (1994) 4 NWLR (PT. 338) 326, (1994) 4 SCNJ 161.” PER IGNATIUS IGWE AGUBE, J.C.A.

PROPER TIME TO RAISE OBJECTION TO THE ADMISSIBILITY OF A DOCUMENT TENDERED IN EVIDENCE

In BASSEY AKPAN ARCHIBONG V. STATE (2006) LPELR-537 (SC); it was held that: “In every case, whether Civil or Criminal, objection to the admissibility of a document must be made when the document is offered in evidence. Where no objection is raised when offered, the document will be admitted and the opposing party cannot later complain on its admissibility unless the document is by law inadmissible. Where the law declares a document inadmissible for non-compliance with its provisions, the document cannot be admitted in evidence; not even by consent of parties. See AGBEYIN V STATE (1967) NMLR 129” PER IGNATIUS IGWE AGUBE, J.C.A.

CONDITION FOR THE ATTACHMENT OF PROBATIVE VALUE TO EXHIBIT

Per OGUNDARE, JSC at pages 46-47, paras. E-B in CHIEF IGBOAMA EZEKWESILI & ORS V. CHIEF BENIAH AGBAPUONWU & ORS (2003) LPELR-1204 (SC) opined thus: “The criterion for the attachment of probative value to exhibit is relevancy, the heartbeat, the centre pin and pivot of the law of evidence. If a party proves that a document is relevantly connected with his case or clearly forms part of the case so much so that it adds to the erection of a common evidential scale in the matter, a trial Judge will certainly attach evidential value to it. And in the exercise, a trial Judge will take into consideration the totality of the exhibit and not bits or portion of it. Once the entire exhibit has evidential value, probative value will be attached to it. As a matter of adjectival law, the two mean the same thing as both reflect the chain of proof in our law. While it is the duty of the trial Judge to admit document and attach probative value to it, like in what area in the trial process, he has not the last say on it.” PER IGNATIUS IGWE AGUBE, J.C.A.

WHETHER IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE; FUNCTION OF AN APPELLATE COURT

It is generally recognized and even settled in law that the traditional or cardinal duty of evaluating the evidence adduced in a given case and ascribing probative value thereto lies within the bossom of the trial Court. See the case of MR. AUDU OTUKPO V. APA JOHN & ANOR (2012) LPELR-25053 (SC); and an appellate Court does not unduly interfere with the findings of the trial Court LEONARD EZEAFULUKWE V. JOHN HOLT LIMITED (1996) LPELR-1196 (SC). However, the function of the Appellate Court was established in the case of T.O. WILSON & ANOR V. A.B. OSHIN & ORS (2000) LPELR-3497 (SC) where per KARIBI WHYTE JSC, at pages 36-37, paras E-A opined that: “The function of an Appellate Court is to determine the Case on the grounds of error of law or facts alleged, and whether the Court below has come to the right decision. It is not necessary whether the trial Court was right in the manner the case was decided, but whether the reason were right. The Appellate Court is concerned only with correcting the errors of law or fact alleged in the decision of the trial Court. See UKEJIANYA V. UCHEDU (1950) 13 WACA 45 AT 46.” PER IGNATIUS IGWE AGUBE, J.C.A.

POSITION OF THE LAW ON WHAT A TRIAL COURT SHOULD TAKE INTO CONSIDERATION IN EVALUATING EVIDENCE

The Apex Court in MR. ADEMOLA ADEWUNMI ODUTOLA & ORS V. PROFESSOR AKIN MABOGUNJE & ORS (2013) LPELR-19909 (SC) opined thus: “There are plethora of case law on the subject matter of what a trial Court should take into consideration in evaluating evidence. See MOGAJI V. ODOFIN (1978) 4 SC 91 AT 94 where this Court said as follows: “In short before a Judge before whom evidence is adduced by parties in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side of the scale and weigh them together. He would then see which is heavier not by the numbers of witnesses called by each party but the quality of the probative value of the testimonies of those witnesses” PER IGNATIUS IGWE AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Appellate Jurisdiction of the Benue State High Court of Justice, Sankera Division in Appeal No. SHC/6A/2012 delivered on the 3rd day of July, 2012 per Honourable Justices A.O Onum, J., and P.T Kwahar, J., whereof the High Court set aside the decision and orders of the Upper Area Court and entered Judgment in favour of the Appellant (now Respondent). Disgruntled by the decision of the High Court, the Respondents (now Appellants) by a Notice of Appeal dated 11th of July, 2012 and predicated on 4 (Four) Grounds, appealed to this Honourable Court as hereunder set out albeit without their respective particulars to wit:
“GROUNDS OF APPEAL
GROUND ONE:
The learned Justices of the High Court erred in law when they entered Judgment for the Appellant who failed to prove the boundaries of the land claimed by him as required by law and this occasioned a miscarriage of justice.
GROUND TWO:
The learned Justices of the High Court erred in law when they placed reliance on Exhibit “C” which was not admissible in law and which

did not legally quantify as a Survey Plan to hold that the Respondent proved the identity and boundaries of the land he claimed and this occasioned a miscarriage of justice.
GROUND THREE:
The learned Justices of the High Court erred in law when they overturned the decision of the Trial Area Court when the Respondent failed to discharge the standard of proof required in claims of title to land and this occasioned a grave miscarriage of justice.
GROUND FOUR:
The learned Justices of the High Court misdirected themselves and erred in law when they failed to properly evaluate the totality of the evidence presented by the Respondent before the trial Court when they entered Judgment, declaring him the owner of the disputed land.”

Upon transmission of the Record of Appeal and entry of the Appeal in this Honourable Court, Briefs of Argument were filed and exchanged by the respective learned Counsel to the parties. In the Appellant’s Brief dated 1st of December, 2014 but filed on 11th December, 2014 by N.E TSOBAZA, Esq., two (2) issues were distilled for determination as follows:

“ISSUES FOR DETERMINATION:
1. Whether the Respondent proved the boundary and identity of the land he claimed with certainty and whether Exhibit “C” relied upon by the High Court was legally admissible in evidence and had any evidential value for the purposes of proving the boundaries of land in dispute (Grounds 1 and 2).
2. Whether the learned Justices of the High Court properly evaluated the evidence tendered by the parties before reaching a decision, overturning the primary findings of fact made by the Trial Sole Judge and whether the decision is sustainable in law (Grounds 3 and 4).”

On the other hand, in the Respondent’s Brief of Argument settled by J.T. AKAAZUA, Esq., dated and field on the 11th day of February, 2015 but deemed properly filed and served on the 4th day of May, 2015, two (2) issues were distilled for determination as reproduced hereunder:
“ISSUES FOR DETERMINATION:
1. Whether the Respondent proved the boundary and identification of the land he claimed with certainty and whether Exhibit “C” relied upon by the High Court was legally admissible in evidence and had any evidential value for the purpose of proving the

boundaries of the land in dispute.
2. Whether the learned Justices of the High Court properly evaluated the evidence tendered by the parties before reaching a decision overturning the primary findings of facts made by the trial sole Judge and whether the decision is sustainable in law”.

STATEMENT OF FACTS
The case of the Appellants is that, this Appeal stems from the decision of the High Court of Benue State sitting in its Appellate jurisdiction at Sankera in Appeal No. SHC/6A/2010 in which their Lordships, per A.O. Onum, J., and P.T. Kwahar, J., on the 3rd day of July, 2012 overturned the decision of the Trial Upper Area Court in a consolidated Suit comprising various Claims and Counter-Claims for declaration of title to a piece of land situate at Zaki-Biam, Ukum Local Government Area, Benue State.

It is the further case of the Appellants that the Respondents claimed a piece of land at Plot 216 Zaki-Biam via filing a Counter-Claim on the said portions which they claimed as their portions from a wider piece of land which had long been occupied by members of the Hausa Community in Zaki-Biam, Benue State and that parties led evidence,

called witnesses and tendered documents in support of their respective cases. The Court visited the locus in quo in the company of the parties and their Counsel and thereafter the Trial Upper Area Court at Sankera dismissed the suit as having not been proved. The Appellants herein did not Appeal against the decision of the Trial Court.

It is their further case that aggrieved by the decision of the Trial Upper Area Court, the Plaintiff/Respondent appealed to the High Court (the lower Court) against the Judgment of the Trial Court Upper Area Court which found amongst others that the Appellant (now Respondent) failed to prove the boundary and identity of the land claimed with certainty and also failed to prove exclusive possession. According to the Appellants, the original Ground of Appeal and the two additional Grounds of Appeal filed by the Appellant (now Respondent) with the leave of the High Court are contained at pages 63, 74 and 75 of Records and the said Grounds of Appeal complained essentially of the error on the part of the Trial Court in holding that the Appellant (now Respondent) failed to prove the boundary of the land claimed in the light of

Exhibit “C” tendered by him and that the Respondents (now Appellants) made out a better case on a balance of probability.

Again, it is their case that, the learned Justices of the High Court overturned the decision of the Upper Area Court which found that the boundaries of the land claimed by the Respondent were uncertain and unproved. Their Lordships held that Exhibit “C”, a sketch map tendered by the Respondent before the Trial Upper Area Court was sufficient evidence of identity and description of the land and that there was no need for the Trial Court to have considered the evidence tendered at the locus in quo or the other pieces of conflicting evidence which had been placed before the Court by the Respondent.

On the same score, the Appellants further asserts in their case that, the lower Court declared title in favour of the Respondent over the plot of land known as Plot No. 216 in Zaki-Biam, which, according to their Lordships as described in the Survey Plan, Exhibit “C” covered by the Certificate of Occupancy Exhibit “D”, which was issued by the Ukum Local Government Area and that, aggrieved by

the decision of the High Court, the Appellants with the leave of the High Court granted on 25th day of September, 2012 appealed to this Court on Four (4) Grounds, all on issues of law, challenging the decision of the lower Court. Pages 104, 105-109 of the Records refers.

On the other hand, the case of the Respondent is that the Plaintiff (now Respondent) at the Upper Area Court of Benue State sitting at Sankera, initiated this Suit against the Defendants (now Appellants) by way of Claim of Plot 216, Zaki-Biam and upon the hearing of the Suit, the Sole Judge of the Upper Area Court dismissed the Claim and the Counter-Claim of the parties. The Respondent, not being satisfied with the Judgment of the Upper Area Court, appealed to the High Court of Benue State and upon the hearing of the Appeal, the panel of Appeal at the lower Court on the 3rd day of July, 2012 set aside the Judgment of the Upper Area Court and entered Judgment in his favour and that the Appellants, not being satisfied with the Judgment of the lower Court, now appeal to this Court. It was also recalled by the Respondent that the Appellants did not appeal against the decision of the Upper Area Court where their Counter-Claim was dismissed but relied on the appeal at the lower Court.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANTS
ARGUMENT ON ISSUE NUMBER 1 (ONE):
WHETHER THE RESPONDENT PROVED THE BOUNDARY AND IDENTITY OF THE LAND HE CLAIMED WITH CERTAINTY AND WHETHER EXHIBIT “C” RELIED UPON BY THE HIGH COURT WAS LEGALLY ADMISSIBLE IN EVIDENCE AND HAD ANY EVIDENTIAL VALUE FOR THE PURPOSES OF PROVING THE BOUNDARIES OF LAND IN DISPUTE (GROUNDS 1 AND 2).

In canvassing this issue, the learned Counsel for the Appellants contended that, the law is settled that in an action for declaration of title to land, a Claimant must prove the identity and boundaries of the land to which a declaration is sought and that the importance of the evidence of boundary in land disputes is captured in the reasoning of Tobi, JSC (as he then was) in the case of Okoko vs. Dakolo (2006) All FWLR (Pt.336) 201 at 239. Accordingly, it was their case that, the standard of proof required to prove boundary is such that a Surveyor, taking the record, could produce a Survey Plan, showing with accuracy, the land in dispute and the boundaries so proved

must be ascertained and that the Plaintiff’s first duty ought to have been to prove the area with certainty over which he claims. Therefore, the Claim of a Plaintiff who is claiming a declaration of title will be dismissed if he fails to prove the boundaries or identity of the land in dispute. Imah vs. Okogbe (1993) 12 SCNJ 57 at 73; Udeze vs. Chidebe (1990) 1 NWLR (Pt.125) 141 referred.

The learned Counsel for the Appellants further contended that following the identification of the said piece of land, the Trial Upper Area Court admitted the sketch plan in evidence as Exhibit “C” and that the Respondent claimed that he dug fish ponds and also carries out fish farming on the land. They argued further that the Respondent in his averment asserts that the Appellants trespassed into the land and erected houses thereon and that he further prayed the Court to award title over the land to him and restrain the Appellants from further acts of trespass. See page 11 of the Records.

It was the argument of the learned Counsel to the Appellants that the evidence of the Respondent’s Sole Witness (PW1) on the issue of identity and boundary

of the land in dispute amounts to no evidence because throughout the oral testimony of the Respondent, no evidence of the boundaries of the land were given or the features thereon identified apart from saying that he made fish ponds on the land as they refer us to pages 31 lines 10 – 40 and 32 lines 5-14 of the Records. Sequel to the above, they submitted that throughout the oral testimony of the Respondent, he did not state the boundaries of the land claimed by him neither did he identify with certainty the piece of land and that mere mentioning the area where the land is situate does not discharge the standard of proof of boundaries in land matters. Atanda vs. Iliasu (2013) 6 NWLR (Pt.1351) 529 at 549 referred.

According to the learned Counsel for the Appellants, the evidence given by the Respondent at the locus in quo does not fit the standard required by law because the beacons to which he made reference had been removed and the sanitary line he referred to has no features on which to make it permanently ascertainable. Thus, the only thing he identified was the temporary bathroom. Again, they submitted that the entire evidence on the Issue of boundary

led by the Respondent at the locus in quo is of no moment and has no probative value in law and that the underlying factor for visiting a locus in quo is invariably for the Court to visually understand the questions that have arisen in the case particularly with regard to physical facts at the locus such as land marks and boundaries so as to properly apply the evidence adduced before it by the parties Obim vs. Achuk (2005) 6 NWLR (Pt.922) 594 at 626-627, Arum vs. Nwobodo (2013) 10 NWLR (Pt.1362) 374 at 420 SC and Odiche vs. Chibogwu (1994) 7 NWLR (Pt.354) 78 SC referred.

It was their further submission that a consideration of the case put forward by the Respondent in the Trial Court fell short of the standard for proving boundary in a land matter and a Surveyor armed with the description given by the Respondent can certainly not produce a graphic representation of the land, for the law is settled that where a party claiming a piece of land fails to prove the boundaries of same with certainty, his Claim must be dismissed Makanjuola vs. Balogun (1989) 3 NWLR (Pt.108) 192 at 200 and 212 referred.

On another score, it was the argument of the learned Counsel for the Appellants that the Respondent also tendered Exhibit “C” which was referred to as a Sketch Plan or a Site Plan and that it was on the basis of this document that their Lordships at the lower Court overturned the decision of the Trial Upper Area Court. They further contended that the Respondent did not at any time describe the document as “Survey Plan” or “Map” which their Lordships set out to define at page 92 of the Records and that an Appellate Court is expected to evaluate the evidence tendered by the parties at the Lower Court to determine whether the correct decision was arrived at, for it is inappropriate for a Court to make a case for the party which he did not make for himself. Again, they referred us to the case of G.S. Pascuto vs. Adecentro Nig. Ltd. (1997) 11 NWLR (Pt.529) 467 SC. According to the learned Counsel to the Appellants, Exhibit “C” was not filed along with the Writ but was tendered in evidence in the course of the trial and that such a document is said to be inadmissible in law as they submitted that the lower Court failed to make any finding on that issue.

It was their further contention that the land in dispute claimed by the Respondent was not required for farming purpose and that Exhibit “C” which was tendered by the Respondent to prove a grant of the disputed piece of land to him by the Ukum Local Government Area where a sketch plan was attached thereto was previously held traditionally. Therefore they urged this Court to take judicial notice that the “Ukum Local Government” is a Corporate entity incapable of drawing any sketch map and that the maker of Exhibit “C” is unknown.

Contending further, they argued that the document was before the High Court and that was their basis to overturn the decision of the Trial Upper Area Court and that examination of the said document shows that it was neither drawn by a Surveyor nor countersigned by the Surveyor General as required by law. This document was rendered inadmissible by law and despite the fact that it was tendered without objection; the lower Court ought not to have attached any weight to, it was further submitted. Agagu vs. Dawodu (1990) 7 NWLR (Pt.160) 56 referred.

Relying on the authorities of Owena Bank (Nig.) Plc vs. Punjab (2000) 5 NWLR (Pt.658) 635; Alade vs. Olukade (1976) 2 SC 183 and Raimi vs. Akintoye (1986) 3 NWLR (Pt.26) 97, they submitted that where a document is rendered inadmissible by law in any event, the fact that it was tendered without objection in the Trial Court will not debar a person from raising it on appeal Anyaebosi & Ors. vs. R.T. Briscoe (Nig.) Ltd. (1987) 2 NSCC 805; (1987) 3 NWLR (Pt.59) 84 referred. To further buttress their argument, they contended that the only exception to this rule is where the sketch map is drawn by a Native Court to illustrate the land in dispute. Duru & Ors. vs. Onwumelu & Anor. (2001) 8 NSCQR 577 at 591.

It was their further submission that the sketch plan tendered by the Respondent as Exhibit “C” before the Trial Court was without any probative value because it was neither drawn by a Surveyor nor Certified and as such no good cause was shown on the record why it was relied on. Therefore, there was no legal basis for their Lordships in the High Court to have based their decision on such a spurious document in the light of the clear provisions of the law.

Again referring us to page 56 of the Records, the learned Counsel for the Appellants argued that Exhibit “C” neither shows the identity of the land, nor any accurate features or clear boundaries of the land in dispute and that there was no Ground of Appeal before the lower Court challenging the findings of the Trial Court which had the opportunity of seeing the Witnesses and visiting the disputed land. Therefore, merely tendering a document and tagging it a sketch plan without evidence linking it to the land made Exhibit “C” absolutely worthless because, the law is settled that the mere fact that a document has been tendered does not make oral evidence irrelevant. The document must be shown to relate to the land. Irhabor vs. Ogiamien (1999) 6 SCNJ 16. Odunlami vs. Nigeria Navy (2013) 12 NWLR (Pt.1367) 20 at 54 SC referred.

Still on the above score, they contended that there was no oral evidence before the Court to ascertain the trueness of Exhibit “C” and that a document standing alone cannot speak for itself within the contemplation of Section 132 of the Evidence Act; now Section 128 of the Evidence Act, 2011. On the above, they submitted that in

determining whether or not the boundaries and identity of the land have been proved, the lower Court had the duty to consider the totality of the evidence adduced by the Respondent, both oral and documentary and it was not for the Court to pick and choose which evidence to act upon Mogaji vs. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 393 referred. Consequently, it was asserted that the learned Appellate Judges of the High Court erred in law to have shut their eyes to the glaring evidence on the record which showed that Exhibit “C” did not provide the legal and evidential basis for drawing the conclusion that the Respondent proved the boundaries of the land in respect of which he sought a declaration of title.

On this Issue, the learned Counsel for the Appellants concluded their argument by submitting that, where a party in an action for declaration of title to land fails to prove the identity of the land he claims, his case must be dismissed as they referred us to Otanma vs. Youdubagha (2006) All FWLR (Pt.300) 1578 and that the High Court erred in law to have held otherwise. Consequent on the above, they urged us to re-evaluate the totality of

the evidence tendered by the Respondent on the boundaries of the land claimed by him at the Trial Court and to resolve Issue No.1 in favour of the Appellants, set aside the Judgment of the lower Court and restore the decision of the Trial Upper Area Court.
ARGUMENT OF THE LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 2 (TWO):
“WHETHER THE LEARNED JUSTICES OF THE HIGH COURT PROPERLY EVALUATED THE EVIDENCE TENDERED BY THE PARTIES BEFORE REACHING A DECISION, OVERTURNING THE PRIMARY FINDINGS OF FACT MADE BY THE TRIAL SOLE JUDGE AND WHETHER THE DECISION IS SUSTAINABLE IN LAW (GROUNDS 3 AND 4).”

On this second Issue, the learned Counsel for the Appellants contended that, the primary duty of the Trial Court is to evaluate evidence and ascribe probative value to it as it has the opportunity of seeing and hearing the Witnesses and that where a Trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Appellate Court to substitute its own views for those of the Trial Court Agbeje & Ors. vs. Ajibola & Ors. (2002) 9 NSCQR 1 at 18-19.

It was their argument that it was the reasoning of the Trial Upper Area Court that resulted in the dismissal of the case of the Respondent on the indication that he failed to prove the boundaries of the land claimed by him. For the above submission, they referred us to page 52 lines 8-19, page 53 lines 1-15; 28-29, page 54 lines 1 -25, page 55 lines 1-10, 17-19, 22, page 56 lines 17-23, page 57 lines 10-16, 20-23, page 59 lines 13-20 and page 60 lines 7-24 of the Record of Appeal.

On the above, they submitted that the findings made by the Trial Court shows that their conclusion was predicated on Exhibit “A”, the letter conveying the award of the land to the Respondent and Exhibit “D”, the Certificate of Occupancy evidencing the grant which did not describe the land but referred to it by reference to the Site Plan and that during their visit to the locus in quo, the Respondent did not identify Tse-Dugwer, Kpete settlement or Kafe stream which features were permanently visible.

It was their argument that the learned Trial Upper Area Court after reviewing the totality of the evidence placed before them, reached a conclusion that the boundary was not proved as the sketch map tendered by the Respondent has no bearing with the land which the Court physically inspected.

Again, they argued further that, it is an established principle regarding the powers of Appellate Court to interfere with primary findings of a Trial Court, that it is not for a Court to substitute its own impression of the case for that of the Trial Court and that what the Appeal Court is mandated to labour itself with should be, whether there was evidence on the record which supports the findings of the Trial Court and if such findings were perverse Odofin vs. Ayoola (1984) 11 SC 72; Amadi vs. Nwosu (1992) 5 NWLR (Pt.241) 273 at 280 referred.

On the above, they submitted that the duty of the Appellate Court is to interfere in the primary findings of fact made by the Trial Court where the Court failed to consider relevant and established facts resulting in a wrong conclusion Umesie & Ors. vs. Onuaguluchi (1995) 12 SCNJ 120 at 135 referred.

It was their contention that the document which the Respondent tendered as Exhibit “C” was found by the Trial Court to be vague and the findings were clearly borne out of the evidence

presented before the Court. For according to them, it is not the law that once a sketch plan is admitted in evidence without objection and no questions were directed towards it in cross-examination, then the Court before where it is placed would be hamstrung in evaluating it for what it’s worth. They referred this Court to Sections 34 and 129(4) of the Evidence Act, 2011. Hence, a document that does not speak for itself is worthless whether or not challenged under cross-examination. Therefore, the lower Court erred in law to have held that the evidence given at the locus in quo was used by the Trial Court to expand the scope of Exhibit “C” as they submitted that the Court below merely substituted its own impression of the case for that of the learned Trial Judge and failed to make any finding as to whether the decision of the Upper Area Court on the issue of proof of boundary was perverse. Having not made any such finding, it was wrong for the Court to have overturned the decision on the ground that the document was admitted without objection neither was it challenged during cross-examination.

Relying on the case of Onwuama vs. Ezeokoli (2002) 94 LRCN 246 at 257, they submitted that it is trite law that the standard of proof in land matters does not shift and a party must succeed on the strength of his case and not on the weakness of the case of the adversary.

Insisting further, the learned Counsel for the Appellants argued that whether or not the Respondent was cross-examined on Exhibit “C”, which evidence would have been inadmissible by virtue of Section 128 of the Evidence Act, 2011, is an indication that both document, that is the Survey Plan and the Title Document placed before the Court by the Respondent did not satisfy the standard of proof required for prove of title to land, especially with regard to the boundary and identity of the land as they submitted that the Respondent failed to prove exclusive possession or an entitlement thereto which is an integral part of the burden of proof of title to land. Consequently, the High Court was therefore wrong to have held that the Respondent proved title to the land by traditional history and by the production of the title documents which has no verifiable link with the disputed land and that the Judgment of the Court below

is not sustainable on the facts of the case presented by the Respondent and the law as the lower Court failed to properly evaluate the evidence and appreciate the real Issues in controversy between the parties. They therefore insisted that there was no justifiable legal basis for the High Court to have interfered with the primary findings of fact of the Trial Upper Area Court which were clearly supported by the evidence before that Court.

In concluding their argument, the learned Counsel for the Appellants urged this Court to resolve Issue No.2 in their favour and to allow this Appeal, set aside the Judgment and orders of the lower Court by upholding the Judgment of the Upper Area Court.

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER 1 (ONE):
“WHETHER THE RESPONDENT PROVED THE BOUNDARY AND IDENTIFICATION OF THE LAND HE CLAIMED WITH CERTAINTY AND WHETHER EXHIBIT “C” RELIED UPON BY THE HIGH COURT WAS LEGALLY ADMISSIBLE IN EVIDENCE AND HAD ANY EVIDENTIAL VALUE FOR THE PURPOSE OF PROVING THE BOUNDARIES OF THE LAND IN DISPUTE?”

On this Issue, the learned Counsel for the Respondent argued that the Respondent had proved the boundaries of the land claimed by him before the Trial Court for it is a settled principle of law that boundaries of a particular piece of land could be proved either by oral evidence or by plan and that in the instant case the Respondent eminently proved the boundaries of the land he claimed before the Trial Court by tendering Exhibit “C” the Survey Plan of the land claimed by him. Page 11 paragraphs 10-15 of the Records referred.

It was his contention that the Appellants did not challenge Exhibit “C” being the graphic description of the land in dispute neither did they make the said Exhibit “C” an issue during cross-examination of the Respondent or his Witness. Page 12 lines 17-23 and page 13 lines 14-19 of the Record. And for the fact that the Appellants did not make Exhibit “C” an issue in their defence amounts to an express admission of the fact that the Appellants also believe that Exhibit “C” is a graphic representation of the boundaries of the land claimed by the Respondent Jim-Jaja vs. COP (2012) 11-12 KLR (Pt.319) 3611 at 3621.

The learned Counsel for the Respondent argued that DW1, by name Bannen Gbarde who is a Staff of Ukum Local Government Area who drew Exhibits “C” and Exhibit “D” confirmed under cross-examination at page 30 lines 7-12 that Exhibits “C” and “D” are in respect of the land in dispute and that there had never been a revocation letter before re-allocation to the Hausa Community. He submitted that the admission of DW1 is germane and has taken away any iota of burden placed on the Respondent to fix Exhibit “C” on the land in dispute. Chief Chukwuemeka Odumegwu Ojukwu vs. Dr. Edwin Onwudiwe & Ors. (1982) 2 SC 15 at 38 and Adeyemi Ogunnaike vs. Taiwo Ojoyemi (1976) 9 & 10 SC 135 at 145 referred.

Again, it was the argument of the learned Counsel to the Respondent that DW1 a Staff at the Survey Department, Ukum Local Government Area was a Witness called by the Appellants, the author of Exhibit “C” and “D”, who eventually testified that Exhibit “C” in respect of the land in dispute is germane and that the Lower Court was right in relying on the contents of Exhibit “C” to hold that the Respondent described the land in dispute as required by law. Page 30 lines 7 – 8 of the Records.

On the second limb of this Issue, the learned Counsel for the Respondent submitted that the Appellants did not challenge the admissibility or make any case against the content of Exhibit “C” and cannot be heard challenging same at this stage. This according to the learned Counsel is borne out of the fact that the Respondent did not Cross-Appeal against the decision of the Trial Court dismissing their case and cannot therefore be allowed to canvass a fresh matter which was not canvassed by the Respondent before the Lower Court Aderigbigbe vs. Abidoye (2009) 4 KLR (Pt.265) 773 at 289.

Arguing further, the learned Counsel for the Respondent insisted that in the instant case, the Counter-Claim of the Appellants and the Claim of the Respondent were dismissed by the Trial Upper Area Court and only the Respondent appealed to the High Court of Benue State sitting at Sankera. The Appellants did not Cross-Appeal to the Lower Court and cannot be allowed to raise new Issues which were not covered by the Grounds and Issues formulated by the Respondent before the Lower Court. Pages 61-67 of Records refer.

It was the submission of the learned Counsel to the Respondent that Exhibit “C” which was legally admissible in evidence was an indication that the Lower Court was right to have relied on same in setting aside the Judgment of the Trial Court and that the evidence on record clearly established the fact that the purpose for which Exhibit “D” was granted to the Respondent was for fish farming. This fact is also conveyed in Exhibits “A”, “B” and “C” as he referred us to pages 10-11 and page 12 lines 11-13 of the Records. Accordingly, it was stressed that it is clear that the purpose for which Exhibit “C” was drawn was for farming.

Still on the above score, the learned Counsel for the Respondent argued that the piece of evidence was not challenged or contradicted by way of cross-examination which automatically amounts to an admission of the fact that Exhibit “C” was in respect of a farm land and that it was also corroborated by the evidence of DW1 at page 30 lines 7-8 of the Records.

According to the learned Counsel for the Respondent, the evidence abounds on the face of Exhibit “C” to indicate that the maker of Exhibit “C” is an Officer in the Survey Department as required by Section 2 of the Survey Law of Benue State was apt and cannot be faulted and that DW1 who was also an Officer at the Survey Department of Ukum Local Government Area also confirmed at page 30 lines 17-18 of the record that Exhibit “C” emanated from the Survey Department of Ukum Local Government Area.

The learned Counsel for the Respondent concluded his argument on this Issue by distinguishing the authority of Babalola vs. Aladeyamo (2001) FWLR (Pt.61) 1670 at 1678 as cited by the Appellants. According to him, the case of the Appellants was that the Survey Plan was drawn by the Appellant himself whereas in the instant case, the Survey Plan was drawn by the Survey Department of Ukum Local Government which was the department authorized by law to draw Survey Plans in the Ukum Local Government Area. This Court is therefore urged to resolve this issue in favour of the Respondent.

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER 2 (TWO):
“WHETHER THE LEARNED JUSTICES OF THE HIGH COURT PROPERLY EVALUATED THE EVIDENCE TENDERED BY THE PARTIES BEFORE REACHING A DECISION OVERTURNING THE PRIMARY FINDINGS OF FACTS MADE BY THE TRIAL SOLE JUDGE AND WHETHER THE DECISION IS SUSTAINABLE IN LAW?”.

On this Issue, the learned Counsel for the Respondent contended that Issue two was not part of the Issues canvassed before the Lower Court and as such there was no Cross-Appeal against the decision of the Trial Court dismissing the case of the Appellants, therefore the Appellants cannot be heard raising this Issue at this stage and that page 61 lines 5-11 of the Records shows that the case of the parties was dismissed by the Trial Court and the Appellant did not appeal or Cross-Appeal against the decision of the Trial Court to the lower Court.

It was the argument of the learned Counsel for the Respondent that in the Grounds of Appeal filed by the Respondent, none of the Issues distilled thereon bothered on the evaluation of evidence of the Trial Court. Pages 62, 63, 74, 75 and 76 of the Records referred. Hence, the failure of the Appellants to Cross-Appeal against the decision of

the Trial Court to the lower Court implies that they cannot be seen raising the Issue of evaluation of evidence which was not raised at the lower Court.

Predicated on the above, he submitted that the lower Court did not evaluate the evidence before the Trial Court but rather stated that the Trial Court was wrong in their conclusion. therefore it’s clear that the duty of lower Court was not to re-evaluate the evidence of the Trial Court but to correct the wrong conclusion reached by the Trial Court after the evaluation of the evidence. Oguanuhu vs. Chiegboka (2013) 1-2 KLR (Pt.323) 521 at 532 paras. F-G referred.

It was his further submission that the lower Court was only concerned with the wrong conclusion reached after the evaluation of the evidence by the Trial Court and that the lower Court did not re-evaluate or question the evaluation of the evidence placed before the Trial Court and that the argument of the Appellants’ is not predicated on the evaluation of the evidence of Witnesses but on the content of Exhibit “C”. The Appellants’ line of argument is contrary to Section 128 of the Evidence Act, 2011.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Rounding up his argument, the learned Counsel for the Respondent submitted that the Appellants have made so much argument on the evaluation of Exhibit “C” which is documentary evidence and that the said Exhibit “C” was tendered before the Trial Court and admitted without any form of objection. Therefore, since the Appellants never objected to the admissibility of Exhibit “C” they cannot forth raise it in this Appeal as he urged this Court to resolve Issue 2 (Two) in favour of the Respondent.

RESOLUTION OF ISSUES:
Having carefully looked at the Records and the respective arguments of the learned Counsel for the parties, it is a truism that the crux of this Appeal is entrenched on the Declaration of Title to land. The Issues distilled by the parties which I find to be expedient and judicious touch on the evaluation of evidence and the boundary identity of the land in dispute. Forthwith, I shall adopt the Appellants’ two Issues for the determination of this Appeal.

RESOLUTION OF ISSUE NUMBER ONE:
WHETHER THE RESPONDENT PROVED THE BOUNDARY AND IDENTITY OF THE LAND HE CLAIMED WITH CERTAINTY AND WHETHER

EXHIBIT “C” RELIED UPON BY THE HIGH COURT WAS LEGALLY ADMISSIBLE IN EVIDENCE AND HAD ANY EVIDENTIAL VALUE FOR THE PURPOSES OF PROVING THE BOUNDARIES OF THE LAND IN DISPUTE (GROUNDS 1 AND 2).

The law is settled that the first duty of a party claiming title to land is to show the identity of the land in dispute in relation to the boundaries. The description of the boundaries must be proved with exactitude, certainty and precision so as to ensure that the evidence adduced can lead a Surveyor to produce an accurate Plan of the land. In a nutshell, proof of ownership of land clearly means the modus an individual employs in the determination of his right in a land dispute. It is the protection and degree of control a person has over a parcel of land. A party who alleges claim and control over a piece of land must by law tender before the Court sufficient material evidence in black and white to show clearly the boundaries and identity of the land. The erudite law lord of the Apex Court per TOBI, JSC (as he then was) in the case of OKOKO VS. DAKOLO (2006) ALL FWLR (PT.336) 201 AT 239 has this to say on the evidence of boundary:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“…Evidence of boundary is very important in land disputes because it is really the centre of the dispute. Once the boundary is known, the Court is in good position to determine the ownership, with the aid of other relevant evidence…”

In the instant case, the grouse of the Appellants is that the Lower Court erred in law when the learned Appellate Judges entered Judgment in favour of the Respondent who failed to prove the boundaries of the land in dispute. The Apex Court in D.O. IDUNDUN & ORS V. DANIEL OKUMAGBA (1976) LPELR-1431 (SC) set out the ways of proving title or ownership to land inter alia: By traditional evidence, by production of document of title; by proving acts of ownership and possession, by proving acts of long possession and enjoyment of land and by proof of possession of connected and adjacent land. It should be noted that the five ways of proving title to land are not mutually connected and the Court in BARTHOLOMEW ONWUBUARIRI & ORS V. ISAAC IGBOASOYI & ORS (2011) LPELR-754 (SC) opined thus:
“That one can establish ownership by any of the five means and need not prove all. However, one

can also decide to prove one’s title by using more than one way as stipulated above. See also OLOWOLAGBA V. BAKARE (1995) 4 NWLR (PT. 387) 116 AT 124; IDUNDUN V. OKUMAGBA (1976) 9-10 S.C 227; ATANDA V. AJANI (1989) 3 NWLR (PT. 111) 511 AT 535 and BALOGUN V. AKANJI (1988) 1 NWLR (PT. 70) 301.”

In Nigeria, there are various documents relating to ownership of land which a Claimant needs to establish in order to establish the legitimacy of his/her ownership. These include Certificate of Occupancy, Deed of Assignment, Governor’s Consent, Survey Plan, Excision Document and Grant of Probate and Letters of Administration etc.

In resolving this Issue, the question of boundary identity of the land in dispute which is key, the law is trite on a plethora of decided authorities, that a Plaintiff seeking a declaration of title has the onus of showing with definitive certainty the identity and location of the land together with its boundaries and features and the party Counter-Claiming title over the same piece of land has the same onus placed on him by law to prove on the balance of probability the identity and boundaries of the disputed land.

By implication, the burden of proof does not shift to the Claimant alone to prove his title but on the Counter-Claimant since they are both laying claim on the same subject matter.

In the instant case, the Respondent established his title by Traditional history, tendering of Survey Plan Exhibit C and Certificate of Occupancy Exhibit D in evidence in proof of the boundary and identity of the land in dispute and it is clear from the Records that the Appellants did not challenge the admissibility of Exhibit C. Again, during cross-examination DW1 by name Bannen Gbarde, a Staff of Ukum Local Government under the works Department of survey section gave his evidence that Exhibits C and D are in respect of the land in dispute and that there was no letter of revocation before the re-allocation of the same land to the Hausa Community.

It is imperative at this juncture to say that the Respondent, upon tracing his title root by way of traditional history, took a further step to perfect his title by obtaining a Certificate of Occupancy dated 7th October, 1993 and a Survey Plan dated 10th September, 1993 from the Ukum Local Government. The Appellants on the other

hand, obtained papers on the said piece of land as can be seen at page 29 lines 24-25 of the Records. It was only the 7th Defendant/Appellant who obtained Certificate of Occupancy from the Ukum Local Government dated 24th November, 2005. Again, from the facts gathered, it was the same Ukum Local Government who drafted the Site Plan that accompanied the Certificate of Occupancy dated 12th August, 2005 on the same piece of land. It suffices therefore to say that parties derive their title from the Ukum Local Government.

The law is settled that where parties derive their title from a common source or grantor, the principle of equity with regards to priority would serve as a working tool to ameliorate or quell the Issue that may have arisen. Per ONU, JSC at pages 14-15, paras. F-A in the case of SAMSON OWIE V. SOLOMON IGHIWI (2005) LPELR-2846 (SC) opined thus:
“Indeed, where the Issue of priority of interest arises and the grant relates to the same parcel of land, then the first in time takes priority, (Qui prior est tempore potior est jure). See AWOYEGBE V. OGBEIDE (1988) 1 NWLR (PT. 73) 695; TEWOGBADE V. OBADINA (1994) 4 NWLR (PT. 338) 326, (1994) 4 SCNJ 161.”

Accordingly, by simple a priori reasoning, placing side by side the Certificate of Occupancy obtained from the Ukum Local Government, it is clear that the Respondent’s Certificate in respect of the piece of land dated 7th October, 1993, takes priority over that of the 7th Appellant dated 24th November, 2005. The rest of the Appellants with mere papers that have no value in the eyes of the law would suffer the same fate akin to that of the 7th Appellant.
As can be gleaned from the above, particularly the parameters set out in BARTHOLOMEW ONWUBUARIRI & ORS V. ISAAC IGBOASOYI & ORS (supra) that a party can prove his title by any of the five means stated in IDUNDUN V. OKUMAGBA (supra) and need not prove all. Consequently, there is no doubt that the lower Court was right to have held that the Respondent proved with certainty the identity of the land he claimed since Exhibit C was sufficient to establish the identity.

On the second arm of this Issue, there is no query or reservation that Exhibit C relied upon by the lower Court was tendered and admitted in evidence without any form of objection from the Appellants.

The contention of the Appellants that the Respondent did not describe the document (Exhibit C) as a Survey Plan or Map is uncalled-for as it is conspicuous and egregious on the face of the paper therefore, for a fuller comprehension of the meaning, its definition and features shall be set out. The 7th edition of the Black’s Law Dictionary delineate the word Survey as the measuring of a tract of land and its boundaries and contents, a map indicating the results of such measurements. A Survey Plan is also defined as a document that measures the boundary of a parcel of land to give an accurate measurement and description of that land. A Survey Plan is inherent with some basic features which include: “The name of the owner of the land surveyed, the address or description of the land surveyed, the size of the land surveyed, the drawn out portion of the land surveyed and mapped out on the survey plan document, the surveyor who drew up the survey plan and the date it was drawn, the beacon numbers and a stamp showing that the land is free from Government acquisition.” All these were captured in Exhibit C and in my opinion; it does not fall short of what a Survey Plan should be.

Again, Exhibit C was drawn by the Survey Department of Ukum Local Government which is also evident on the face of the Plan. Section 2 of the Survey Law of Benue State Vol. 2, 2004 stipulates that:
“Surveyor means a licensed surveyor or an officer of the survey department authorized by the Director or the surveyor General to carry out surveys.”
Accordingly, the issue of Exhibit C as submitted by the Appellants that it ought not to have been admitted in evidence by the Trial Upper Area Court and that the lower Court should have expunged it on the footing that it does not match the required standard, is in my view a laughable submission and of no moment as they cannot approbate and reprobate their stands at the same time. The reason is because the said Exhibit C was tendered in evidence and admitted without any objection from the Appellants. Having not objected to the admissibility of Exhibit C, this omission translated to the fact that the Appellants were comfortable with the admission and saw no reason to challenge its admissibility. Thus, in a situation like this, the Court is at liberty to ascribe

probative value to the document. In BASSEY AKPAN ARCHIBONG V. STATE (2006) LPELR-537 (SC); it was held that:
“In every case, whether Civil or Criminal, objection to the admissibility of a document must be made when the document is offered in evidence. Where no objection is raised when offered, the document will be admitted and the opposing party cannot later complain on its admissibility unless the document is by law inadmissible. Where the law declares a document inadmissible for non-compliance with its provisions, the document cannot be admitted in evidence; not even by consent of parties. See AGBEYIN V STATE (1967) NMLR 129”
Consequently, it is my considered view that Exhibit C was legally admissible in evidence by the Trial Upper Area Court and since the Appellants refused/neglected to raise any objection to that effect, it implies that, they were fully in consonance with the content of the document. On the identity of the boundary of the disputed land, it is apt to articulate that, the lower Court was right to have held that the Appellant now Respondent was entitled to Plot No. 216 covered by Exhibits C and D. This is because the

said Exhibit C was admitted in evidence because it was relevant to the fact in Issue, and upon cautious evaluation, the Lower Court saw concrete, cogent and compelling reasons to ascribe probative value to it. Per OGUNDARE, JSC at pages 46-47, paras. E-B in CHIEF IGBOAMA EZEKWESILI & ORS V. CHIEF BENIAH AGBAPUONWU & ORS (2003) LPELR-1204 (SC) opined thus:
“The criterion for the attachment of probative value to exhibit is relevancy, the heartbeat, the centre pin and pivot of the law of evidence. If a party proves that a document is relevantly connected with his case or clearly forms part of the case so much so that it adds to the erection of a common evidential scale in the matter, a trial Judge will certainly attach evidential value to it. And in the exercise, a trial Judge will take into consideration the totality of the exhibit and not bits or portion of it. Once the entire exhibit has evidential value, probative value will be attached to it. As a matter of adjectival law, the two mean the same thing as both reflect the chain of proof in our law. While it is the duty of the trial Judge to admit document and attach probative value to it, like in what area in the trial process, he has not the last say on it.”

Predicated on the above, it is my considered view that Exhibit C is relevant to the fact in Issue since it serves as a mirror through which the identity and boundaries of the land can be seen. It is also admissible since it was not challenged by the Appellants. Accordingly, this first issue is resolved in favour of the Respondent.

RESOLUTION OF ISSUE NUMBER TWO:
“WHETHER THE LEARNED JUSTICES OF THE HIGH COURT PROPERLY EVALUATED THE EVIDENCE TENDERED BY THE PARTIES BEFORE REACHING A DECISION, OVERTURNING THE PRIMARY FINDINGS OF FACT MADE BY THE TRIAL SOLE JUDGE AND WHETHER THE DECISION IS SUSTAINABLE IN LAW (GROUNDS 3 AND 4).”

(1996) LPELR-1196 (SC). However, the function of the Appellate Court was established in the case of T.O. WILSON & ANOR V. A.B. OSHIN & ORS (2000) LPELR-3497 (SC) where per KARIBI WHYTE JSC, at pages 36-37, paras E-A opined that:

“The function of an Appellate Court is to determine the Case on the grounds of error of law or facts alleged, and whether the Court below has come to the right decision. It is not necessary whether the trial Court was right in the manner the case was decided, but whether the reason were right. The Appellate Court is concerned only with correcting the errors of law or fact alleged in the decision of the trial Court. See UKEJIANYA V. UCHEDU (1950) 13 WACA 45 AT 46.”
Howbeit, an Appellate Court does not play the role of a helpless on looker and must interfere with the findings of the trial Court where refusal to do so will occasion substantial injustice. There is no doubt that the reasoning of the trial Upper Area Court resulted in the dismissal of the Respondent’s Claim and Counter-Claim of the Appellants on the premise that parties were unable to prove with certainty the identity and boundaries of the

land in dispute. But upon careful perusal of the totality of the evidence tendered as per exhibits, the lower Court relied on the weight of Exhibit C to discredit the findings of the trial Upper Area Court on the footings that the said Exhibit C was sufficient to prove the identity of the land and does not require any testimony in form of corroboration to validate its certainty. The Apex Court in MR. ADEMOLA ADEWUNMI ODUTOLA & ORS V. PROFESSOR AKIN MABOGUNJE & ORS (2013) LPELR-19909 (SC) opined thus:
“There are plethora of case law on the subject matter of what a trial Court should take into consideration in evaluating evidence. See MOGAJI V. ODOFIN (1978) 4 SC 91 AT 94 where this Court said as follows: “In short before a Judge before whom evidence is adduced by parties in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side of the scale and weigh them together. He would then see which is heavier not by the numbers of witnesses called by each party but the quality of the probative value of the testimonies of those witnesses”

Consequently, it is settled that the grouse of the Appellants is of no moment on the basis that the probative value attached to Exhibit C by the Lower Court find humongous merit. This merit stems from the evaluation of the evidence as per Exhibits together with oral testimonies of witnesses. Little wonder the lower Court held at pages 93-94 of the Records/Judgment that:
“Accordingly, it is our view that once there is a survey plan of any piece of land and no specific material issue is made of it, the land becomes identifiable for the purpose of any declaratory and injunctive order, rendering any oral evidence thereon a mere superfluity that could safely be avoided or regarded as innocuous even where it appears to contradict the survey plan. Before tendering Exhibit “C”, the Appellant testified to the effect that it was the survey plan of the land over which he was seeking for the declaration of his title and injunctive orders against the Respondents. The document was tendered without objection and admitted as such. See page 10 lines

9-18 of the printed Record of proceedings. He was not challenged on the point of whether the document was indeed truly a graphic representation of the land on paper or suffered some inaccuracies that should put its efficacy in question. In other words, the Respondents did not make any material issue of the accuracy of Exhibit “C” throughout the trial. In reaching this conclusion, we are mindful of the fact that pleadings were not filed before the Trial Court, in that case, it was open to the Respondents’ Counsel to have put the efficacy of Exhibit “C” in issue while cross-examining the Appellant who had tendered it in proof of the identity of the land. The terse cross-examination of the Appellant at page 11 of the printed Record before us is bereft of raising any material issue on the contents of Exhibit “C”. Evidence could therefore not be admissible at the locus to expand or contradict Exhibit “C” on the identity of the land that the Appellant was claiming before the Court. Therefore even assuming for purposes of argument that the Appellant, who had tendered Exhibit “C” in support of his case

without objection, was unable to zero on the point of each of the beacons contained on the face of the Survey Plan, such a failure alone cannot put the efficacy of the plan in doubt since no issue had been made of the matters contained on the face of it at the Trial. In the circumstances, we agree with the Appellant’s Counsel that Exhibit “C” was sufficient to establish the identity of the land that the Appellant was claiming against the Respondents for the purposes of certainty of any orders directed on the land…”
I am therefore in consonance with the reasoning and conclusion of the lower Court on the indication that Exhibit C sufficiently established the identity of the land in dispute and since it was not challenged, the grouse of the Appellants automatically goes to no issue. In OBA E.A. IPINLAIYE II V. CHIEF JULIUS OLUKOTUN (1996) LPELR-1532 (SC); it was held that:
“It is the cardinal rule of evidence and practice in civil as well as in criminal cases that an objection to the admissibility of a document sought to be tendered in evidence is immediately taken when it is offered in evidence. Barring some

exceptions whereby in law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failure to comply with the provisions of such law (such as the provisions of Section 15 of the Land Instrument Registration Act) the rule remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document or other evidence, the document or other evidence would be admitted and the opposing party cannot afterwards be heard to complain about its admission. See Chief Bruno Etim and others V. Chief Okon Ekpe & Anor, supra at page 36-37.”
The crucial point which the Appellants needs to comprehend is that, the lower Court cannot keep in abeyance the Issues that were canvassed by parties for determination to dabble on unrelated matters. A cursory look at page 63 of the Records reveals that Ground one (1) formulated by the Appellant (now Respondent) at the lower Court was against the weight of evidence from where Issue one (1) was distilled. The said Issue one (1) raised the question as to whether or not Exhibit C which was/is the Survey Plan over Plot No.216 Zaki-Biam

tendered and admitted in evidence sufficiently described the land in dispute as to dispense with oral description. The additional Ground at page 74 of the Records states that the trial Upper Area Court Judge erred in law in holding that the Appellant (now Respondent) has failed to describe the boundaries of the land in dispute when Exhibit “C” has described the said boundaries.
It would be incongruous to say that the lower Court failed to evaluate the totality of the evidence placed before her because the Issue distilled from the Ground of Appeal above bothers on the evaluation of evidence. Besides, the findings of the lower Court can be seen at pages 91-92 lines 12-27 of the Records as follows:
“We have read the printed record of the trial Court in the light of which we have also considered the submission of Counsel. The principal question that underlies this Appeal is whether or not the trial Court was justified in casting doubt on the veracity of Exhibit C, as it did at pages 55-56 lines 17-23 of the printed record, and concluding that it was not sufficient to prove the identity of the land in dispute for purposes of declaratory

and injunctive orders sought by the Appellant before the Court. In reaching that conclusion the Court did not see any credible evidence to translate Exhibit C and to fix it to any particular piece of land over which it could make any orders. Of course the aim or the need to prove the identity of any land in dispute is to ensure that enforceable orders can be made in relation thereto, and so to obviate the chances of any further judicial dispute over it. See SAURA ADEYORI & ORS V. LANIYI ADENIRAN & 1 OR, (2001) FWLR (PT. 76) at paras. E-F, per ADEKEYE, JSC (as he then was); “…the purpose of laying emphasis in ascertaining the exact area of land in dispute is to enable the party or anybody claiming through to know the precise area to which Judgment of Court relates for purposes of enforcement, and to obviate the possibility of future litigation on that particular area NWOGO V. NJOKU (1990) 3 NWLR (PT. 140) PGS 570 AT 582 paras D-E.”
Again, as can be gleaned from the above, it is my considered view that the lower Court properly evaluated the evidence tendered by the parties before reaching its conclusion. Secondly, the decision is

sustainable in law as it contains or accommodates the basic features or components of a good decision or Judgment. Accordingly, this Issue is resolved in favour of the Respondent.

In conclusion, it is apt to remind the Appellants that Exhibit C is a paradigm of definitive certainty as the facts of the identity of the land and its boundaries as contained therein cannot be denied and a good look at the documents particularly Exhibit C shows that the identity together with the boundaries of the disputed land is not in question as it belongs to the Respondent. The Appellants have not been able to adduce more credible evidence to controvert the evidence of the Respondent and what the Court requires is for the land to be precisely identified with definitive certainty as contained in Exhibit C.

Accordingly, this Appeal is unmeritorious and is hereby dismissed and the decision of the lower Court delivered on the 3rd day of July, 2012 per Honourable Justices A.O Onum, J and P.T Kwahar, J., is hereby affirmed. Parties are to bear their costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother Ignatius Igwe Agube, PJCA. I quite agree with his reasoning and conclusion therein. The appeal lacks merit consequent upon which same shall be dismissed and is so dismissed by me.
I abide by the consequential order as to costs made in the lead judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I am in complete agreement with the reasoning and resolution arrived at in the said judgment.

I just want to add my voice to the issue of when a document is tendered without any objection the opposing party cannot on appeal argue otherwise, the Supreme Court in the case NASIR V CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) LPELR-1943(SC) reiterated the point when it held:
“It is the law that where a party fails to raise an objection during trial, he is deemed to have waived his right to do so on appeal on the particular point or procedure. In the present case since the appellant did not object against the procedure under which the respondents motion on notice was brought at the trial Court, he is thereby

estopped under the principle of waiver to raise the point at this stage – see Tsokwa Oil Co. Ltd v. Bank of the North Ltd (2002) 5 SCNJ 176 at 192: Kossen (Nig) Ltd v. Savana bank Ltd (1995) 12 SCNJ 29; Ojomo v. Ijeh (1987) 4 NWLR (Pt.64) 216 at 244 -245, Kaduna Textiles Ltd v. Umar (1994) 1 NWLR (pt.319) 143…” Per MUKHTAR, J.S.C.
And also in the case of ANAGBADO V FARUK (2018) LPELR-44909(SC) the apex Court per SANUSI, JSC held:
“The law is trite and well settled too, that if party fails to raise objection to the admissibility of a document tendered by an opposite party, the person/party who fails to object to the admission of such document, cannot later raise the issue of admission of the document by the trial Court at the appellate Court. See Alade vs Olukade (1976) 2 SC 183 at 119; Raimi v Akintoye (1986) 3 NWLR (pt.26) 97. The doctrine of estoppel by conduct is even applicable on that.” Per SANUSI, J.S.C
It is therefore necessary to raise the objection at the point of its being sought to be tendered in evidence, once the document is not out rightly outlawed. In this appeal Exhibit C was admitted without objection and it is a document

that defines the size and boundaries of the land in dispute. The Appellant cannot having allowed it in turn round to contend otherwise. It is evidence of identity of the land in dispute and having so established, the Court below rightly found in Respondent’s favour.
This appeal is bereft of merit and I too dismiss same and abide by the other orders made therein.

Appearances:

I.A Ozor, Esq. For Appellant(s)

J.T. Mkar, Esq. For Respondent(s)