In The Court of Appeal of Nigeria

On Wednesday, the 19th day of June, 2019




It is trite that a party seeking for a declaration of title to land who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say, he must demonstrate in his pleading the original founder of the land, how he founded the land, and the particulars of the intervening owners through whom he claims. Where a party has not given sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just laid the foundation for the failure of his claim. In Ezeokonkwo V Okeke (2002) LPELR-1211(SC) 17-18, the Supreme Court, per Iguh, JSC held:
It cannot be over-emphasised that it is not sufficient for a party who relies for proof of title to land on traditional history to merely plead that he, and before him, his predecessors in title had owned and possessed the land from time beyond human memory. He must also plead and prove:- (i) who founded the land, (ii) how the land was founded and (iii) particulars of the intervening owners through whom he claims.?
Therefore, a party who hinges his claim of declaration of title to land on traditional history must establish how his ancestor, the original owner, acquired the land, i.e. whether by settlement, conquest or grant. A claim predicated on traditional history or evidence must be proved by any of the recognized methods, and the traditional history adduced must be cogent, un-contradicted evidence that must also be conclusive, if the party is to succeed. Thus, a plaintiff who relies on traditional history as his proof of title must aver in his statement of claim/counter-claim seriatim the genealogical tree or line of succession of the family from the cradle of its founding fathers to him and he must also lead admissible evidence in vindication or proof of the statement of claim/counter-claim. Unless he performs these twin procedural functions, his action is bound to fail.


Similarly, where a defendant to a claim for title to land fails to prove his root of title by the traditional evidence he pleaded, his defence to the claim would fail. See Okoli V Omagu (2014) LPELR-22665(CA) 43-44 per Garba, JCA; Oyadare V Keji(2005) 7 NWLR (Pt. 925) 571; Ohiaeri V Akabeze (1992) 2 NWLR (Pt. 221) 1.



Appellant not represented by Counsel.For Appellant(s)

S.O. Idikwu Esq. appears for Respondent, holding the brief of Sunday Ayegba Esq.For Respondent(s)



Before Their Lordships

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria


MR. ONDOMA DANIEL Appellant(s)



PASTOR GODFREY OCHECHEMA ADOLE                          Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, Benue State sitting at Okpoga in Suit No. OKP/HC/41/2018 delivered on 19th April, 2018 by Ejembi, J. Therein, the claim of the Respondent (Plaintiff) in paragraph 14 of his Statement of Claim was granted; and the Counter-claim of the Appellant (Defendant/Counter-claimant) set out in paragraph 17 of Counter-Claim, was dismissed. Dissatisfied with the Judgment of the lower Court, the Appellant appealed to this Court vide a Notice of Appeal filed on 9th May, 2018 wherein he complained on three grounds.

The brief facts leading to the Appeal are that the Respondent sued the Appellant for a declaration of title to a piece of land situate at Olena, Old Otobi Road GRA, Otukpo, Benue State, covered by title documents placed before the Court as Exhibits C and D. He also sought for an injunction as well as damages against the Appellant. The Appellant filed a defence to the claim and also counter-claimed for the same piece of land.

The case of the Respondent was that he purchased land from one Daniel I. Edoh, who had also purchased the land from PW1 at the rate of N700, 000.00 (Seven Hundred Thousand Naira). In proof of this, he tendered Exhibits A, B, C, D and E which were: an agreement between Daniel I. Edoh and PW1; an agreement between the Respondent and his vendor, Daniel I. Edoh; a Statutory Right of Occupancy with a Site Plan; and an Elder’s consent, respectively.

The case of the Appellant, on the other hand, was that he purchased the disputed piece of land from his vendor, DW1, who was the customary owner of the land in dispute. He stated that the land had been in the custody of his vendor even before the creation of Benue State and that he had known the piece of land from 1990. It was after the purchase of the land that he approached the Otukpo Local Government Council for a Certificate of Occupancy over the land. The Appellant therefore tendered in evidence Exhibits D1, D2, D3, D4 and D5, which are: the agreement between the Appellant and his vendor, DW1; the Otukpo Local Government Certificate of Occupancy; a Survey Plan accompanying the Certificate of Occupancy; an Elder’s consent; and Otukpo Local Government Department receipts.

At the hearing of the Appeal on 26-03-19, the Appellant was not in Court and was not represented by Counsel. Therefore, the Appellant?s Brief of argument filed on 03-10-18 and his Reply Brief of argument filed on 29-11-18 were deemed duly argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016. Thereafter, S.O. Idikwu Esq. adopted the Respondent?s Brief of argument dated 11-11-18 and filed on 15-11-18 in urging the Court to dismiss the Appeal for lack of merit.

In his Brief of argument, the Appellant distilled three issues for the determination of the Appeal as follows:
1. Whether the lower Court properly evaluated the evidence of the Appellant and the Respondent upon the pleadings and evidence placed before the lower Court before it arrived at the conclusion that the Respondent is the owner of the disputed land. (Ground one)
2. Whether having regard to the totality of the evidence placed before it, the lower Court was right to have entered Judgment in favour of the Respondent. (Ground three)
3. Whether in view of the evidence placed before the lower Court its findings are supported by the case of the parties. (Ground two)

The Respondent adopts all the issues of the Appellant by arguing the three issues under one sole issue, contending that all three issues are based on the burden of proof, namely:
Whether or not the Judgment of the trial Court awarding the disputed land in the Respondent’s favour and dismissing the counter-claim of Appellant, is supported by the weight of evidence on Record. (Grounds one, two and three)

The Respondent?s sole issue is indeed a succinct summary of the Appellant?s three issues which are needlessly splintered, leading to an over-lapping and repetition in the submissions of the Appellant. The Appeal shall therefore be determined under the sole issue distilled by the Respondent which encompasses the Appellant?s three issues. I also note that even though the Respondent raised and argued a preliminary objection at pages 2 to 3 of his Brief of argument, during the hearing of the Appeal, Counsel for the Respondent did not make any reference to it and so failed to argue it. Thus, the preliminary objection and the arguments proffered by both the Respondent in his Brief of argument and the Appellant in his Reply Brief of argument are deemed abandoned and are accordingly struck out.

Learned Counsel for the Appellant submits that in evaluating the case of the parties, the trial Court is duty bound to consider the evidence of the parties placed before it and to ensure that justice is done. In addition, the findings of the Court must align with the evidence of the parties, and not be at variance with it. Where the judgment, decision or order of the Court is outside the parameters of the evidence placed before the Court, they are perverse and the Court of Appeal is empowered to evaluate the evidence of the parties and come to the right decision – Akinbade V Babatunde (2018) LRCN Vol. 276, 48, 87, U-EE per Kekere-Ekun, JSC; Mini Lodge Ltd V Ngei (2010) VOL. 182 LRCN 172, 190, A-F perJSC; Agbi V Ogbeh (2004) Vol. 136 LRCN Vol. 204, 3371, 4308, JJ & 3409, AF; Ayanru V Mandilas Ltd (2007) Vol. 147 LRCN 1036, 1050 per Mohamed, JSC; Akinbade V Babatunde (supra) 75-76, JJ, A-K per Mohamed, JSC.

In the instant case, Counsel submits that the lower Court failed in its sacrosanct duty of properly evaluating the evidence of the Appellant vis–vis that of the Respondent in arriving at its Judgment issued in favour of the Respondent. He contends that the lower Court delved into collateral matters not connected with the evidence placed before it. Thus, its conclusions, findings and Judgment run counter to the evidence of the parties. In addition, the principles of law applied to the proved facts make the findings of the lower Court incorrect.

Counsel submits that the Respondent relied on Exhibits C and D as the basis of his claim to the disputed piece of land; while the Appellant relied on traditional evidence and long possession. In his Statement of claim, the Respondent refers to the Statutory Right of Occupancy No. BNB 405/15 dated 4th June, 1996 issued in the name of Ema Enogela as the basis of his title. He replicated this assertion in his deposition on oath. However during the trial, he tendered a Statutory Right of Occupancy number BNB/405 dated 4th June, 1996; and not the Statutory Right of Occupancy No. BNB 405/15 as was averred and deposed to in the Statement of Claim and deposition on oath respectively. Counsel therefore contends that the lower Court failed to evaluate this piece of evidence even though it was made an issue in the Statement of Defence and also in the written address of the Defendant.

Counsel submits that rather than evaluate this conflicting piece of evidence, the trial Court held that it preferred the title documents of the Respondent when, in view of the nature of evidence placed before it, the Respondent did not tender any Statutory Right of Occupancy. He argues that if the trial Court had pro