OKUKU OKON EDET BASSEY v. MR. IKPIDEHE OKON EDEM (2019)

OKUKU OKON EDET BASSEY v. MR. IKPIDEHE OKON EDEM

(2019)LCN/13605(CA)

In The Court of Appeal of Nigeria

On Monday, the 1st day of July, 2019

CA/C/268/2017

RATIO

WHEN EVIDENCE OF A PARTY IS CONTRARY TO PLEADINGS

LAND LAW: WHEN THE PLAINTIFF WILL NOT BE REQUIRED TO PROVE IDENTITY OF THE LAND
In other words, although a Plaintiff seeking a declaration of title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates, however, the burden will not arise where the identity of the land in dispute does not arise from the pleadings. That is to say, where the Defendant by his pleadings admitted the description, location, features and dimension of the land. In such circumstances, the identity of the disputed land is not a question in issue and does not require proof. See BENEDICT OTANMA V. KINGDOM YOUDUBAGHA (2006) 1 SCNJ 94; IREJU V. NWOKIDU & 3 ORS V. MARK OKANU & ANOR (2010) 1 SC (PT. 1) 136.PER MOJEED ADEKUNLE OWOADE, J.C.A.

LAND LAW: THE IMPORTABCE OF ASCERTAINING THE IDENTITY TO LAND AND TITLE OF CLAIMANT IN DECLARATION OF TITLE TO LAND
Before going into the issue as stated above, it is pertinent from on-set to ascertain the identity of the land in dispute and also the title of the Claimant as this is a sine qua non in any claim for declaration of title to land. In the case of OKEKE V. NNOLIM (2015) 5 NWLR (PT. 1453) 444 CA RATIO 2, the Court held that:
The issue of the identity of the land and the proof of same by the Claimant is a very important exercise in a claim of declaration of title establishing a case of title to land. Proof of identity of the land in dispute is sine qua non to establishing a case of title to land. Proof of identity of disputed land is the first hurdle the claimant needs to surmount in exercise of identifying the location of the disputed land. (ONWUKA V. EDIALA (1989) 1 NWLR (PT. 96) 182 @ 194; ODICHE V. CHIBOGWU (1994) 7 NWLR (PT. 354) 78; SANNI V. OGUNBODE (2001) 8 NWLR (PT. 714) 74. PER MOJEED ADEKUNLE OWOADE, J.C.A.

DECLARATION OF TITLE TO LAND: A LAND IS IDENTIFIED WHEN THERE ARE SOME DESCRIPTIONS IN THE EVIDENCE THAT MAKE THE LAND ASCERTAINABLE

The law is clear that a Claim for declaration of title to land, once there are some descriptions in the evidence which makes a disputed land ascertainable, the identity of the land is proved. See AIYEOLA V. PEDRO (2014) 13 NWLR (PT. 1424) 409 SC RATIO 13. PER MOJEED ADEKUNLE OWOADE, J.C.A.

WHERE ROOT OF TITLE IS ADMITTED, THE ONUS OF PROVE SHIFTS

Thus, where the root of title is admitted, the onus to prove a change in the ownership of the land in dispute shifts to the party who asserts the change. See AHMADU TATU V. ESTATE OF LATE ISAH ALH. ADAMU & 1 OR (2015) 13 NWLR (PT. 1476) 364 @ 401; UFOMBA V. AHUCHAOGU (2003) 8 NWLR (PT. 821) 130; ORLU V. GOGO-ABITE (2010) 8 NWLR (PT. 1196) 307; FAMUROTI V. AGBEKE (1991) 5 NWLR (PT. 189) 1; ODUNSI V. BAMGBALA (374) 641. PER MOJEED ADEKUNLE OWOADE, J.C.A.

LAND LAW: EXCEPTION TO THE RULE THAT THE PLAINTIFF MUST IN CLAIM FOR DECLARATION OF TITLE RELY ON THE STREGNTH OF HIS CASE

LAND LAW: WHERE THE ONUS OF PROOF IS ON THE DEFENDANT
Also, in quite a number of cases, the onus of proof is on the Defendant. An example is where the Defendant in his pleading admits that the Plaintiff was the original owner: the onus is on the Defendant to prove an absolute grant to him. See OCHONNA V. UNOSI (1965) N. M. L. R. 321. PER MOJEED ADEKUNLE OWOADE, J.C.A.

LAND LAW: WHETHER TWO PARTIES THAT CLAIM ADVERSELY TO EACH OTHER CAN HAVE CONCURRENT POSSESSION OF A LAND IN DISPUTE

I would however add in relation to issue four that there can be no such thing as concurrent possession by two persons claiming adversely to each other. KARIMU AYINLA V. SIFAWU SIJUWOLA (1984) 5 SC 44; AMAKOR V. OBIEFUNA (1974) 1 ALL NLR (PT. 1) 119; NATHANIEL UDE & 2 ORS V. N. CHIMBO & ORS (1998) 10 SCNJ 23; EZEKIEL OLADIMEJI OGUNDIPE V. JOB AWE & 2 ORS (1988) 1 SC 216.
This is because when two people are in the same field, each claiming possession he who can establish title wins. S. A. OGUNBIYI V. S. B. ADEWUNMI (1988) 12 SC (PT. 111) 144. Indeed, the possession of one of them, such as the Appellant in the instant case must be adjudged an act of trespass. SEE CHIEF ADEBAYO BASHORUN OLUFOSOYE & 2 ORS V.JOHNSON OLORUNFEMI (1989) SC (PT. 1) 29; J. O. EKI V. F. M. GIWA (1977) 2 SC 74.PER MOJEED ADEKUNLE OWOADE, J.C.A.

WHETHER THE ABSENCE OF A PARTY DURING ARBITRATION CAN AFFECT THE DECISION OF THE COURT ON TRIAL

The simple answer to Appellant?s issue five is that the lack of appearance of the appellant before the Arbitration Panel that invited him on complaint of the Respondent?s father was not part of the basis of the trial Court?s decision in this case. The learned trial Judge only made allusion to the invitation by the Arbitration Panel amongst other questions that arose in evidence when analyzing the case of the Appellant as Defendant such questions indeed include the failure of the Respondent?s father to sign Exhibit 1, all of which assisted the trial Court in the truth finding process to come to the conclusion at page 149 of the Record that:
The above questions which beg for answers to my mind goes to the root of the Defendant?s case as the burden placed on the Defendant to prove that the Claimant has been divested of the property has not in my humble view been met.PER MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

OKUKU OKON EDET BASSEY Appellant(s)

AND

MR. IKPIDEHE OKON EDEM Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Augustine D. Odokwo of the High Court of Akwa Ibom State, Uyo Judicial Division delivered in Suit No. HU/240/2016 on 1st March 2017.

The Respondent as Claimant brought out a Writ of summons accompanied by Statement of claim against the Appellant as Defendant on 13/08/2015. Paragraph 18 of the Respondent?s Statement of Claim reads thus:
18. Wherefore the Claimant claims from the Defendant as follows:
i. A declaration that the Claimant is entitled to the three plots of land located in ?Ndon Esa Akai and Ndon Ntike?, Ikot Eto Village in Ibesikpo Asutan Local Government Area of Akwa Ibom State having been given to him by his late father, Late Chief Okon Edem.
ii. AN ORDER of perpetual injunction restraining the Defendant, his servant and privies, from trespassing into the land of the Claimant.
?iii. AN ORDER vesting ownership of the three plots of land located in ?Ndon Esa Akai and Ndon Ntike?, Ikot Eto Village in Ibesikpo Asutan Local Government Area of Akwa Ibom State

on the Claimant.
iv. Payment of the sum of Five Hundred Thousand Naira (N500,000.00) only as damages for the unlawful interference by the Defendant on the land belonging to the Claimant.

Pleadings were filed and exchanged. The case of the Respondent as Claimant was/is that the land in dispute was an inter vivos gift to him from his father Chief Okon Edem. That his late father had in the month of March 2013 borrowed the sum of One Hundred and Fifty Thousand Naira only (N150,000.00) from the Defendant Appellant and that when his father sought to refund the money, the Appellant informed his (Claimant?s father)that he has taken the Claimant?s land in lieu of payment. That sometime in August 2013, the Appellant started laying false claims to the plots of land, saying that the Claimant?s father had sold the land to him and started brandishing a deed of conveyance dated 20th of August 2009.

The Appellant on the other hand pleaded and called witnesses to say that ?the Defendant paid the father of the Claimant the sum of One Hundred and Sixty-five Thousand Naira (N165,000.00) for the land on 20th August, 2009. And the Defendant

since then has taken over the possession of the land in dispute while the father of the Claimant used the money to build his house?. The Respondent as Claimant gave evidence and called no other witness. The Appellant gave evidence as DW1 but also called DW2 and DW3.

In his judgment of 01/03/2014, the learned trial Judge found first at page 145 of the Record of Appeal that:
The Claimant in paragraph 3, 4, and 5 of his Statement of Claim and witness deposition on oath before this Court adduced evidence in support of his Claim for declaration of title. This evidence was admitted by the Defendant in paragraphs 4 and 6 of his Statement of Defence. Where evidence of traditional history is not contradicted or controverted and is found to be cogent, such evidence can sustain a claim for declaration of title. See the case of ADELEKE V. AKANJI (1994) 4 NWLR (PT. 341) 715 @ 727. Facts pleaded by one party and admitted by the other party generally need no further proof. See UWEGBA V. A. G. BENDEL STATE (1986) 1 NWLR (PT. 16) 303, see also YASHE V. UMAR (SUPRA) RATION 7.
Second, at page 146 of Record, that:
In a suit for the declaration of title

the onus of proof lies on the Claimant, however where it is proved that the original ownership of a property is in a litigating party, the burden of proving that, that party has been divested of the ownership rest on the other party, in this case, the Defendant herein. See the case of EMMANUEL CHIJIOKE V. CHIEF (DR.) MPAKABOARI GOGO-ABITE (2010) 41 NSCQR 458 @ PAGE 488-491 PARAGRAPHS A-A; TATU V. ESTATE OF LATE ALH. I ADAMU (2015) 13 NWLR (PT. 1476) 364 CA RATIO 3. It is trite that where a Defendant in his pleadings as in the instant case, admits that the Claimant or his ancestor was the original owner of the land in dispute, the onus of proof is on the Defendant to prove that the Plaintiff was divested of the title. See MULIMA V. USMAN (2014) 16 NWLR (PT. 1432) 160 SC RATIO 15; OKOYE V. NWANKWO (2014) 15 NWLR (PT. 1429) 93 SC RATIO 13; NGURA V. ACHIKWU (2015) 9 NWLR (PT. 1463) 47 CA.

The learned trial Judge concluded that the Defendant Appellant has not been able to prove that the Claimant was divested of title to the disputed property and held that the claim of the Claimant Respondent succeeds.

?Dissatisfied with the judgment, the Appellant filed

a Notice of Appeal containing five (5) grounds of Appeal in this Court on 31/03/2017. The relevant briefs of Argument are:
1. Appellant?s brief of Argument dated and filed on 21/08/2017 but deemed filed on 09/04/2019. It is settled by Victor U. Essien, Esq.
2. Respondent?s brief of Argument dated 30/10/2017 and filed on 06/11/2017 but deemed filed on 09/04/2019. It is settled by Chief Godwin O. Effiong.
Learned counsel for the Appellant nominated five issues for determination. They are:
(i) Whether on the state of pleadings and the evidence of the parties on record, the trial Court was right to have entered judgments (sic) in favour of the Claimant/Respondent having regards to the totality of the evidence adduce (sic) before it (from Omnibus ground of Appeal).
(ii) Whether the Claimant/Respondent was able to prove the identity or the boundaries of the land disputes as regard to Exhibits 4 and 5 according to law.
(iii) Whether the Claimant/Respondent on the evidence before the trial Court, prove his case on a balance of probability or on a preponderance of evidence to have warranted the trial Court granting title

of the disputed property in favour of the Claimant/Respondent.
(iv) Whether the Defendant/Appellant was able to prove in Court below through evidence of DW1, DW2 and DW3 that, he actually purchased the land in dispute from the father of the Claimant/Respondent under customary law for the transfer of title to the land in dispute.
(v) Whether the trial Court was right in law to take into consideration the none appearance of the Defendant/Appellant before the Southern Ibesikpo Consultative Forum on the date he was invited or any other day in giving his judgment.

Learned counsel for the Respondent on the other hand nominated only one issue for the determination of the appeal. It is:
Whether on the state of pleadings and the evidence of the parties on record, the trial Court was right to have entered judgment in favour of the Claimant/Respondent.

Appellant?s issue one and three are identical, the two issues would therefore be considered together in the treatment of issues.

ISSUES ONE AND THREE
Learned counsel for the Appellant submitted on issues one and three as follows. That it is the duty of the Plaintiff

in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title and the Plaintiff must succeed on the strength of his own case and not in the weakness of the defence, although the Plaintiff may take advantage of the Defendant?s evidence where it supports his case. He referred on this to the case of JODI V. SALAMI (2009) ALL FWLR (PT. 458) 385 @ 409 and submitted that in the instant case, the Respondent rested his claim on a gift alleged done by his father in his life time as the mode of acquisition of title to the disputed property. Appellant?s counsel alleged that the statement of the Respondent as PW1 on page 4 of the record the ?the Claimant came into the possession and ownership of the aforementioned plots of land when his father, Late Chief Okon Edem, during his lifetime shared his properties among his children, and gave the three plots of land located in Ndon Esa Akai and Ndon Ntike to the Claimant..? is at variance with PW1?s statement during cross-examination on page 133 that ?yes, I am the only male child of my father”.

He submitted further that the Respondent in paragraphs 7 and 8 on page 10 of the record, stated that his father borrowed the sum of One Hundred and Fifty Thousand naira (N150,000.00) in the month of March, 2013, from the Appellant to enable him renovate his house and he also promised to refund the borrowed money on or before the month of March 2014 but that during cross-examination of the PW1, the Respondent on page 133 of the record told the Court that, his father borrowed the money to buy snuff and to marry a new wife and that it is not true that his father loaned the money in March, 2013 with promise to pay back on or before March, 2014.

He referred to the cases of OKOKO V. DAKOLO (2006) ALL FWLR (PT. 336) 2019; ADDAH V. UBANDAWAKI (2015) VOL. 241 LRCN PAGE 24 AND NWADINOBI V. M. C. C. (NIG.) LTD. (2016) 1 NWLR (PT. 1494) 449-450 to say that where the evidence of the witness is at variance with the pleadings, the Court is enjoined to discountenance or disregard such evidence because it has no value.
?
On another wicket, learned counsel for the appellant submitted that the Respondent did not prove the identity of the land in

dispute even when the appellant tendered Exhibits 4 and 5 to no avail. He submitted that the Respondent in paragraph 6 on page 9 of the record, claimed before the Court three (3) plots of land located in Ndon Esa Akain and Ndon Ntike, and went further to state the names of the people that have boundaries with the three (3) plots of land, namely: Effiong Nnwa Idiok, Mdon Paul Ekpo, Chief Okon Edem Udo, Essien Ase Inyang, Udo Sam Udo, Sarah Anthony Udoh, and a major road leading to Ikot Eto Village, Ibesikpo Asutan Local Government Area and the Appellant in his Statement of Defence in paragraph 5 on page 27 of the record, disagreed with the Respondent and tendered Exhibits 4 and 5 which was the struck out proceedings filed by the same parties for the same subject matter. He submitted that the identity of land came into issue when the appellant raised same in his Statement of Defence. On this he referred to the cases of BASSIL V. FAJEBE (2001) FWLR (PT. 51) PAGE 1930-1931; KARIMU V. LAGOS STATE GOVT. (2012) 5 NWLR (PT. 1294) 646.

Appellant?s counsel further submitted that the Respondent claimed three (3) plots of land in two different locations, Ndon

Esa Akai and Ndon Ntike both in Ikot Eto Village. That PW1 did not identify the boundary of Ndon Esa Akai and that of Ndon Ntike but rather brought all the names of the people that owned the surrounding land together. He noted that on page 143 of the record, the judgment of the Court below states that ?the Claimant in paragraph 5 of his Statement of Claim adduced evidence as to the identity of the land in dispute?. However, that paragraph 6 (i) (ii) and (iii) of the Appellant?s statement of Defence on page 28 of the record states that the three (3) portions were located in different locations and bounded as named in paragraph 6 (i) (ii) and (iii) of the Statement of Defence. He referred to the cases of NWABUOKU V. ONWORDI (2002) FWLR (PT. 123) 337; ARABE V. ASANLU (1980) 5-7 SC 78 and ADEBAYO V. IGHODALO (1996) 5 NWLR (PT. 450) 508 and submitted that the onus is on the party for a declaratory relief to lead evidence thereon and not merely rely on admission by the Defendant in his pleadings.

The third leg of the Appellant?s issue one is his submission that the Respondent did not call any witness in the Court below to attest to his

claim, but that the Defendant Appellant called two (2) witnesses who were Dw2 and DW3 who were eye witnesses when he purchased the land in dispute from the father of the Claimant Respondent and DW2 is an elder brother to both the father of the Respondent and the Appellant. He submitted that the trial Court relied on speculations rather than facts to arrive at perverse conclusion not established by evidence before the Court which resulted in miscarriage of justice.

Appellant?s counsel referred to the cases of U. B. A. PLC. V. LAWAL (2015) 14 NWLR (PT. 1479) 225 @ 228-229; UDENGWU V. UZUEGBU (2003) 12 NWLR (PT. 836) 136 and BASSIL V. FAJEBE (2001) FWLR 1849-2067 for the meaning of ?perverse decision? and submitted that in the instant case, the trial Court relied on speculations of the Respondent that his father did not sell the land in dispute but rather borrowed money from the Appellant. The Respondent did not state in his pleadings nor in evidence that, he witnessed the time the Appellant borrowed the sum of One Hundred and Fifty Thousand Naira (N150,000.00) to his father, nor did he mention people that witnessed the transactions and

the date the transaction took place.

Appellant?s counsel submitted further that DW1 and DW2 testified to the effect that the father of the Respondent actually sold the land in dispute to the Appellant and he paid the sum of One Hundred and Sixty-Five Thousand Naira (N165,000.00) to him in the presence of witnesses. ?And the Defendant since then has taken over the possession of the land in dispute

He submitted that Exhibit 1 was the purchase receipt while the father of the Respondent refused to sign after collecting the sum of One Hundred and Sixty-Five Thousand Naira (N165,000.00). The Appellant added to the above submissions in his issue three, that in a situation where the Claimant makes claims for declaration of the title, damages for trespass and injunction against the Defendant, he must be able to prove his title to the property through credible evidence, and the Court would only grant the said relief to the party who proves an exclusive possession. He referred to the case of OBICHE V. ADETONA (2009) ALL FWLR (PT. 478) 345 @ 368.

He also referred to the various ways of acquisition of the

title to land as stated in the cases of AREMU V. ADETORO (2007) ALL FWLR (PT. 388) 985 @ 1000 and JODI V. SALAMI (2009) ALL FWLR (PT. 459) and submitted that the Respondent traced his title to a gift from his father but did not call any witness to support his claim. He added that the evidence of the Respondent that his father borrowed the sum of One Hundred and Fifty Thousand Naira (N150,000.00) from the Appellant is hearsay evidence and urged us to resolve issues one and three in favour of the Appellant.

Learned counsel for the Respondent responses to all the issues nominated by the appellant including issues one and three are contained in his sole issue for determination of the appeal. For example, on the identity of the land in dispute, learned counsel to the Respondent submitted that the boundary and identity of the land was never in dispute as both parties are in agreement both in pleadings and evidence of the actual land in dispute. He referred to the case of AIYEOLA V. PEDRO (2014) 13 NWLR (PT. 1424) 409 that once there are some descriptions in the evidence which makes a disputed land ascertainable, the identity of the land is proved. That the law

is well settled that the determining factors that put an identity into question are averments in the pleadings of the parties. Also, ascribing different names to land by parties is immaterial for purpose of proving identity of land. Respondent?s counsel referred to paragraph 3 of the Claimant/Respondent?s Statement of Claim, paragraphs 5 and 7 of the Defendant/Appellant?s Statement of Defence as well as the case of BURUTOLOU V. YEIBAKE(2015) ALL FWLR (PT. 771) 1534 to buttress the fact that notwithstanding Exhibits 4 and 5, which in any event do not support the Appellant?s case, the parties are in agreement as to the identity of the land in dispute.

On the question of proof of title, Respondent?s counsel submitted that while it is conceded that it is the duty of the Plaintiff in an action for declaration of title to land to succeed on the strength of his own case, the law is now settled that a Plaintiff is entitled to take advantage of any evidence adduced by the Defence, which tends to support and establish the Plaintiff?s title.

He referred to the decision of the Supreme Court in the case of BURAIMOH V. BAMGBOSE

(sic) (1989) 3 NWLR (PT. 109) 352 for the statement of law that:
The acronym that the Plaintiff must, in a claim for declaration of title rely on the strength of his own case and not on the weakness of the defence now admits of a number of recognized exceptions:
(a) It has no place where there are facts and factors in the Defendant?s case which supports the Plaintiff?s case.
(b) Where the Defendant in his pleadings admits that the Plaintiff was the original owner, the onus is on the Defendant to prove an absolute grant to him.

Respondent?s counsel submitted that in the instant case, the Appellant had pleaded facts and posited factors which support the Respondent?s case. For example, that the appellant admitted that the original owner of the three parcels of land in dispute at Ndon Esa Akai and Ndon Ntike was the father of the Respondent. Thus, according to the Respondent?s counsel, the learned trial Judge was right when he held at page 146 of the Record that:
It is trite that where a Defendant in his pleadings as in the instant case, admits that the Claimant or his ancestor was the original owner of the

land in dispute, the onus of proof is on the Defendant to proof (sic) prove that the Plaintiff was divested of title.

He added that the Appellant failed to establish that the Respondent had been divested of the title. On this score, Respondent?s counsel started with the example of the evidence in chief of the appellant as contained in paragraph 1 of the appellant?s witness Statement on oath ? to wit:
“1. I admit paragraph 1 of the Statement of claim that the Claimant is a member of Nung Uyo (ekpuk) family in Ikot Eto Village, Ibesikpo Asutan Local Government Area, Akwa Ibom State but denied that the Claimant is not the owner of the three (3) plots of land.?

He submitted that by the above pleading, the Appellant had admitted that the ownership of the said three (3) plots resides with the Respondent. Thus, according to the Respondent?s counsel, the learned trial Judge was right when he held at page 146 of the Record that:
In the instant case, the claimant has successfully established his title, the burden placed before the Defendant by law is to prove that the claimant was divested of the title. It

has been decided by the superior Court that there is no burden on a Defendant to an action for declaration of title, who has not counter claim to establish title.

He submitted that from the evidence before the trial Court, the Appellant has not been able to discredit the Respondent?s evidence. That the Respondent sufficiently discharged the burden of proof placed on him, while the Appellant was unable to show how the title in the land in dispute was validly transferred to him by the Respondent?s predecessor ? in ? title.

Respondent?s counsel submitted further that the Appellant was not able to contradict the Respondent?s evidence that he survived his father as the only son and that before his father?s demise, the father had transferred title to the disputed parcel of land to him. Respondent?s counsel further submitted:
(a) That the Respondent?s evidence that his father while alive took steps to report the trespass of the appellant to a 3rd party i.e Southern Ibesikpo Consultative Forum (an Arbitration Panel of Royal Fathers)
?(b) The resort to police arrest of the Respondent?s

father by the appellant
(c) The refusal to endorse the prepared Power of attorney (Exhibit 1) by the Respondent?s father
all put to doubt the claim of the appellant that the Respondent?s father sold the parcels of disputed land to him.

He submitted that it was the Appellant himself who gave evidence that the Respondent?s father refused and/or rejected to sign Exhibit 1 after he allegedly gave him the purchase money for the disputed land. And, also as noted by the learned trial Judge that even the Appellant?s alleged witness to the purported sale, one Adiaha Okon Edem Udo also did not sign Exhibit 1, the purported power of attorney.

Respondent?s counsel submitted further that assuming without conceding that there was a transaction as purportedly represented by Exhibit 1, such a transaction would have been void ab initio as the Respondent?s father had no such title to pass. And, also that the value of Exhibit 1 remains zero even if the Respondent?s father had signed the said Exhibit 1. This according to Respondent?s counsel is because:
Where a party in case of land disputes parades title

document as evidence of title to the land in dispute, the Court must inquire into the following:
(a) Whether the document is genuine and valid;
(b) Whether the document has been duly executed, stamped, and registered;
(c) Whether the grantor had the authority and capacity to make the grant;
(d) Whether the grantor had in fact, what it purported to grant; and
(e) Whether it had the effect claimed by the holder of the document.

On this, Respondent?s counsel referred to the cases of LAMBE V. AREMU (2014) ALL FWLLR (PT. 729) 1075 @ 1085; KYARI V. ALKALI (2001) FWLR (PT. 60) 1481; DABO V. ABDULLAHI (2005) ALL FWLR (PT. 255) 1039. He submitted that Exhibit 1 is fraught with intrinsic deficiencies which the evidence of the Appellant could not stitch to make same (Exhibit 1) a potent and reliable document in favour of the Appellant. That for example
A. DW2 evidence during cross-examination at page 137 of the Record is that ?I was not surprised that the father to the Claimant sued the Defendant to the High Court due to the trouble between them? before the above evidence DW2 had also said during

cross-examination that ?the father to claimant was arrested because he refused to sign Exhibit 1. This was last year 2015.”
B. DW3 said at cross-examination at page 139 of the Record that ?the Defendant did not go back to the land again since there was a problem. Yes, because of the trouble, the Claimant and his father sued the Defendant to the High Court in 2014.”

He concluded on issues one and three that these pieces of evidence elicited at cross-examination have negated the claim of the Appellant that he actually led believable evidence than that of the Respondent. He urged us to dismiss the appeal.

RESOLUTION OF ISSUES ONE AND THREE
The first complaint on issues one and three by the Appellant is that the evidence of the Respondent is at variance with pleadings in two senses. That the Respondent pleaded that ?he came into possession and ownership of the land in dispute by gift from his father who shared his properties amongst his children in his lifetime and gave the three plots of land to him. But that during cross-examination, PW1 states ?yes I am the only male child of my

father?.? Also, that while the Respondent pleaded that his father borrowed money from the Appellant with a promise to pay back but that during cross-examination, the Respondent said it is not true that his father loaned money in March 2013 with a promise to pay back on or before March 2014.

In the first place, there is nothing inconsistent in pleadings and evidence on the sharing of gifts among children which includes the only male child. That was only suggestive of the fact that the other children were females and that could only have been a matter for cross-examination but clearly not indicative of any variance between pleading and evidence.

The other allegation by the Appellant of the denial of the Respondent?s pleading in cross-examination as to promise of his father to pay back the loan of N150,000.00 (One Hundred and Fifty Thousand Naira) was a contradiction between pleading and evidence which is not material to the Respondent?s case. The Respondent?s case was/is not based on the loan that was supposedly taken by his father. Incidentally, even the appellant?s case was not based on the loan

supposedly granted to the Respondent?s father.

The position of the law is that evidence of a party which is contrary to the pleadings whether extracted in chief or under cross-examination goes to no issue and ought to be disregarded. See NWAWUBA & 3 ORS V. ENEMUO & 2 ORS (1988) 5 SC 237; MAGNUSSON V. KOIKI (1993) 12 SCNJ 114; THE BRITISH INDIA GENERAL INSURANCE COMPANY NIGERIA LIMITED V. A. THARWADAS (1978) 3 SC 102. In the instant case, the pleading and evidence by the Respondent that his father borrowed N150,000.00 (One Hundred and Fifty Thousand Naira) from the Appellant was a surplussage and was not material to the Respondent?s case even if disregarded as a matter of law.

The second complaint by the Appellant in relation to issues one and three is on the identity of the land in dispute. In this respect, it is pertinent to produce the pleadings of the parties on the description and identity of the land in dispute. Paragraph 5 of the Respondent?s Statement of claim which PW1 witnessed to read thus:
?5. The Claimant avers that the three plots of land located in Ndon Esa Akai and Ndon Ntike are bounded by the

lands of the following persons namely; Effiong Nnwa Idiok, Mfon Paul Ekpo, Ekong bassey Ekpo, Chief Okon Edem Udo, Essien Ase Inyang, Udo Sam Udo, Udosen Ntok and Ekong Bassey Udo; Edem Bassey Udo, Sarah Anthony Udoh and a major road leading to Ikot Eto Village, Ibesikpo Asutan Local Government Area.

The Appellant as Defendant reacted to the above in paragraph 5 and 6 of his Statement of Defence at pages 27-28 of the Records as follows:
5. The Defendant admits paragraph 5 of the Statement of Claim and states further that, the Claimant did not claim three (3) portions of land but rather two (2) portions of land in the stroutout (sic) suit, in Suit No. HU/381/2014 between the same parties except the 2nd Plaintiff who is late, in paragraphs 4, 6, and 7 of the statement of Claim and in paragraph 4, 7, and 8 of the witness statement of oath of Mr. Ikpidehe Okon Edem (the Claimant). The claimant did not also in that Suit include in his boundaries, names of Edem Bassey Udo and Sarah Anthony Udoh.
The stroutout (sic) suit, in suit No HU/381/2014 between (1) Mr. Ikpidehe Okon Edem (2) Chief Okon Edem and Okuku Okon Edet Bassey particularly paragraph 4,

6, and 7 of the Statement of Claim and in paragraph 4, 7, and 8 of the written deposition on oath is pleaded and shall be relied upon during trial.
The Defendant shall also relied (sic) upon the stroutout (sic) suit, in paragraphs 4 and 6 of the Statement of Defence and paragraph 4 and 6 of the written deposition of Okuku Okon Edet Bassey in Suit No HU/381/2014 and filed on 20th April, 2015 is pleaded and shall be relied upon during trial.
6. The Defendant denies paragraph 6 of the Statement of Claims and states further that, he did not lay false claims to the subject matter. That, it was the Claimant?s father, Chief Okon Edem Udoh who sold the three (3) plots of land to him on 20th August, 2009. That the three portions of land are located at Ndon Esa Akai and Ndon Ntike, all in Ikot Eto village in Ibesikpo Asutan Local Government Area of Akwa Ibom State.
The three (3) portions were located in different locations bounded by the following people?s land:
(i) First (1st) portion of land is bound by the following people?s land: Effion Nnwa Idiok, Mfon Paul Ekpo, Ekon Bassey Ekpo and Chief Okon Edem Udon.
(ii) Second (2nd)

portion of land is bounded by the following people?s land: Essien Ase Inyang, Udo Sam Udo, Udosen Ntok and Ekong Bassey Udo.
(iii) The thirds (3rd) portion of land is bounded by the following people?s land: Edem Bassey udo, Sarah Anthony Udoh and Main road. That all three (3) portions mentioned were sold by the father of the Claimant to the Defendant for the sum of One Hundred and Sixty-Five Thousand Naira (N165,000.00) including traditional items associated with the outright sell (sic) of land in Ibibio land in the presence of witnesses and he was put in possession since 2009 till date.

It would be seen in essence from the above pleadings that the Appellant admitted the description and identity of land by the Respondent as described in paragraph 5 of the Statement of Claim. It was based on the above pleadings and evidence that the learned trial Judge and here the learned counsel for the Respondent concluded that the boundaries and/or identity of land was not in dispute as both parties are in agreement both in pleading and evidence as to the land in dispute.
?
Learned counsel for the Respondent went further by relying on the cases of

AIYEOLA V. PEDRO (2014) 13 NWLR (PT. 1424) 409 and BURUTOLOU V. YEIBAKE (2015) ALL FWLR (PT. 771) 1534 in the first to say that once there are some descriptions in the evidence which makes a disputed land ascertainable, the identity of the land is proved. And, the second to reiterate the trite position of the law that ascribing different names to land by parties is immaterial for the purpose of proving the identity of land. Truly, the burden of proof is obviated where the identity and extent of the land in dispute was never in issue. See BOSINDE AYUYA & 4 ORS V. CHIEF MAGHAN YONRIN & 3 ORS (2011) 4 SC (PT. 11)1.
In other words, although a Plaintiff seeking a declaration of title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates, however, the burden will not arise where the identity of the land in dispute does not arise from the pleadings. That is to say, where the Defendant by his pleadings admitted the description, location, features and dimension of the land. In such circumstances, the identity of the disputed land is not a question in issue and does not require proof. See

BENEDICT OTANMA V. KINGDOM YOUDUBAGHA (2006) 1 SCNJ 94; IREJU V. NWOKIDU & 3 ORS V. MARK OKANU & ANOR (2010) 1 SC (PT. 1) 136.
It is for these reasons that I agree with the learned trial Judge when he stated on the identity of land at pages 143-144 of the Record of Appeal as follows:
Before going into the issue as stated above, it is pertinent from on-set to ascertain the identity of the land in dispute and also the title of the Claimant as this is a sine qua non in any claim for declaration of title to land. In the case of OKEKE V. NNOLIM (2015) 5 NWLR (PT. 1453) 444 CA RATIO 2, the Court held that:
The issue of the identity of the land and the proof of same by the Claimant is a very important exercise in a claim of declaration of title establishing a case of title to land. Proof of identity of the land in dispute is sine qua non to establishing a case of title to land. Proof of identity of disputed land is the first hurdle the claimant needs to surmount in exercise of identifying the location of the disputed land. (ONWUKA V. EDIALA (1989) 1 NWLR (PT. 96) 182 @ 194; ODICHE V. CHIBOGWU (1994) 7 NWLR (PT. 354) 78; SANNI V. OGUNBODE (2001)

8 NWLR (PT. 714) 74.
The Claimant in paragraph 5 of his Statement of Claim adduced evidence as to the identity of the land in dispute, where he stated that:
The Claimant avers that the three plots of land located in Ndon Esa Akai and Ndon Ntike are bounded by the lands of the following persons, namely: Effiong Nnwa Idiok, Mfon Paul Ekpo, Ekong Bassey Ekpo, Chief Okon Edem Udo, Essien Ase Inyang, Udo Sam Udo, Edem Bassey Udo, Sarah Anthony Udoh and a Major Road leading to Ikot Eto Village Ibesikpo Asutan Local Government Area.
This evidence was not controverted by the Defendant. The Defendant made no attempt to confront the claimant with Exhibits 4 and 5 under cross-examination in order to contradict his evidence in this case with the one in the previous struck out case in Suit No HU/381/2014. In the case of MOTANYA V. ELINWA (1994) NWLR PT. 356 PG. 252, it was held that the Court will not make any finding of facts on the boundaries of the land where parties in the suit know the boundaries and admitted same in their pleading.
The law is clear that a Claim for declaration of title to land, once there are some descriptions in the evidence

which makes a disputed land ascertainable, the identity of the land is proved. See AIYEOLA V. PEDRO (2014) 13 NWLR (PT. 1424) 409 SC RATIO 13.

The third point raised by the Appellant in relation to his issues one and three is the question whether the Respondent indeed proved his claim on a balance of probabilities. Here again, it is pertinent to start from the pleadings of the parties. By paragraphs 1 and 3 of the statement of Claim, the Respondent pleaded as follows:
1. The claimant is a member of Nung Uyo family (Ekpuk) in Ikot Eto Village, Ibesikpo Asutan Local Government Area, Akwa Ibom State and the owner of three plots of land located in Ndon Esa Akai and Ndon Ntike in Ikot Eto Village, Ibesikpo Asutan Local Government Area, Akwa Ibom state.
3. The Claimant came into possession and ownership of the aforementioned plots of land when his father, Late Chief Okon Edem, during his lifetime, shared his properties among his children, and gave the three plots of land located in Ndon Esa Akai and Ndon Ntike to the claimant.

The Appellant as Defendant on the other hand pleaded in paragraphs 1, 2 and 3 of the Statement of Defence at pages 26-27

of the Record of Appeal as follows:
1. The Defendant admits paragraph 1 of the Statement of claim that the Claimant is a member of Nung Uyo (Ekpuk) family in Ikot Eto Village, Ibesikpo Asutan Local Government Area, Akwa Ibom State but denies that, the Claimant is not the owner of the three (3) plots of land located in Ndon Esa Akai and Ndon Ntike in Ikot Eto Village. That immediately the father of the Claimant Chief Okon Edem Udo made an outright sell (sic) of the land in dispute to him on 20th August, 2009 in the presence of witnesses he ceased to be the owner of the land.
Those that witnessed the transaction were:
(i) Mr. Edem Bassey Edet
(ii) Chief Effiong Edet Bassey, the elder brother to the Defendant.
(iii) The eldest sister to the Claimant Adiaha Okon Edem udo, all witnessed when the father of the Claimant Chief Okon Edem Udo made an outright sell (sic) of the land in dispute to the Defendnat at the cost of One Hundred and Fifty Thousand Naira (N150,000.00) with additional Fifteen Thousand naira (N15,000.00) for traditional items associated with outright sell (sic) of land in Ibibio custom and tradition, which makes the total

sum of for the three (3) plots of land (the Subject matter) One Hundred and Sixty-Five Thousand naira (N165,000.00) the father of the Claimant has so far used the money to build his house but refused to sign receipt when presented to him later after collecting the money.
2. The Defendant admits paragraph 2 of the Statement of Claim that, he is a member of Nung Uyo family but denies any trespass into the property of the Claimant.
3. The Defendant denies paragraph 3 of the Statement of Claim and further states that, after the outright sale of the Subject Matter by the father of the Claimant on 20th August 2009 to him in the presence of witnesses, and actually putting him in possession in the present of witnesses, since 2009, the father of the claimant left with nothing to share to the Claimant particularly the land in dispute. The Claimant filed a similar suit against the Defendant in Suit No. HU/381/2014 before Honourable Justice Godwin J. Abraham which Suit was stroutout (sic) by the Court through the application of the Defendant?s counsel Victor U. Essien, Esq.
The Claimant here, who was the 1st Claimant in suit No HU/381/2014

between the same parties except the 2nd Claimant who is late, states in paragraph 3 of the witness Statement on Oath that the “Subject Matter of this Suit is two plots of land known as and called Ndon Esa Akai and Ndon Ntike, situate at Ikot Eto Village in Ibesikpo Asutan Local Government Area of Akwa Ibom State which we have been in possession from time immemorial.”
The stroutout (sic) Writ of summon, witness deposition on oath of Mr. Ikpidehe Okon Edem in Suit No. HU/381/2014 is pleaded and shall be relied upon during trial especially paragraph 3 of the written deposition of Mr. Ikpidehe Okon Edem and paragraph 4 of the Statement of Defence.

The above pleadings not only indicate the admission of the Respondent?s claims in paragraph 1 of the Statement of Defence but also the admission that the Appellant derived title from the Respondent?s predecessor in paragraph 3 of the Statement of Defence.

Given this scenario, the learned trial Judge and here the learned counsel for the Respondent were right to say that ?it is trite that where a Defendant in his pleadings as in the instant case admits that the Claimant or his ancestor

was the original owner of the land in dispute, the onus of proof is on the Defendant to proof that the Plaintiff was divested of the title.

The above observation by the learned trial Judge as contained on page 146 of the Record reminds us of two related principles of law from the decided cases. The first as stated earlier is that in an action for title to land, where parties agree that title was previously vested in one of them, the burden is on the other party to prove that the party, in whom title had been vested had been divested of it and how this was accomplished. Once it is shown that the original ownership of property is in a party, the burden of proving that the party has been divested of ownership rest on the other party.
Thus, where the root of title is admitted, the onus to prove a change in the ownership of the land in dispute shifts to the party who asserts the change. See AHMADU TATU V. ESTATE OF LATE ISAH ALH. ADAMU & 1 OR (2015) 13 NWLR (PT. 1476) 364 @ 401; UFOMBA V. AHUCHAOGU (2003) 8 NWLR (PT. 821) 130; ORLU V. GOGO-ABITE (2010) 8 NWLR (PT. 1196) 307; FAMUROTI V. AGBEKE (1991) 5 NWLR (PT. 189) 1; ODUNSI V. BAMGBALA (374) 641.

Secondly, as was held by the Supreme Court per Nnaemeka-Agu J. S.C in the case of LASISI AKANNI BURAIMOH V. REBECCA AYINKE BAMGBOSE (1989) 3 NWLR (PT. 109) 352 @ 366:
The acronym that a Plaintiff must in a claim for declaration of title, rely on the strength of his own case and not on the weakness of the defence now admits of a number of recognized exceptions. It has no place where there are facts and factors in the Defendant?s case which support the Plaintiff?s.
See AKINOLA & ANOR V. OLUWO (1962) 1 ALL NLR 224, P. 225; AKUNWATA NWAGBOGU V. CHIEF M. O. IBEZIAKO (1972) VOL. 2 E. C. S. L. R (PART 1) 335, @ P. 338.
Also, in quite a number of cases, the onus of proof is on the Defendant. An example is where the Defendant in his pleading admits that the Plaintiff was the original owner: the onus is on the Defendant to prove an absolute grant to him. See OCHONNA V. UNOSI (1965) N. M. L. R. 321.
The question that arises in this instant case is how did the Appellant show that the ancestor of the Respondent was divested of the title to the land in dispute?
The Appellant gave evidence, tendered Exhibit 1 and a purchase

receipt and also called DW2 and DW3 that he purchased the land in dispute and was let into possession by the Respondent?s father under customary law. However, the said purchase receipt Exhibit 1 was neither signed nor thumb printed by the vendor or any of his witnesses. In the circumstance, Appellant?s Exhibit 1 was not only worthless to render any support to the Appellant?s case and in addition grossly and fundamentally contradicts the oral evidence of the Appellant and his witnesses as to the question of any purchase of the land in dispute from the Respondent?s Father.
The situation of Exhibit 1 in the instant case could be likened to that of the Exhibit B considered by the Court of Appeal (Yola Division) per Sankey JCA in the case of TATU V. ESTATE OF LATE ISAH ALH. ADAMU (13 NWLR (PT. 1476) 364 @ 400-401 said of as follows:
In the pleadings before the trial Court, the Defendant admitted that the land in dispute had previously belonged to 2nd Plaintiffs/2nd Respondent?s son; Isa. Having so admitted, the onus of proof was cast upon the Defendant to show that title to the land in dispute which was previously in the 2nd

Plaintiff?s son, had been transferred to him. See ADEDEJI V. OLOSO (2007) 1 SCNJ 397, (2007) 5 NWLR (PT. 1026) 133?
In the instant case, the Appellant woefully failed to prove that the Late Isa sold the property to him and that, he paid the purchase price he alleged to the deceased. Exhibit B which he brought forth as proof that he purchased the property was so discredited before the lower Court that no reasonable Court or tribunal would act on it?
In the circumstances, Appellant?s issues one and three are resolved against the appellant.

ISSUES TWO AND FOUR
Learned counsel for the Appellant merely repeated his submissions in relation to the identity and boundaries of the land in dispute under issues one and three in his treatment of issue two.

In relation to issue four on the proof of title to land, Appellant?s counsel added to his submission by saying that the Appellant was in actual possession of the Subject Matter since 2009, that the Respondent during cross-examination asked the Court below to give him possession of the three (3) plots of land in dispute.

Also, that the Court below could not differentiate between the sale and borrowing of the money by the father of the Respondent even though DW1, DW2 and DW3 testified to this.

I had earlier on considered all the points raised in Appellant?s issues two and four in my treatment and answers to Appellant?s issues one and three. I therefore adopt my decisions on issues one and three as applicable to issues two and four.

(1989) SC (PT. 1) 29; J. O. EKI V. F. M. GIWA (1977) 2 SC 74.
For these reasons, issues two and four are also resolved against the Appellant.

ISSUE FIVE
Appellant?s issue five queries the right of the trial Court to take into consideration the non appearance of the Defendant/Appellant before the southern Ibesikpo Consultative Forum on the date he was invited or any other day in his judgment.

The simple answer to Appellant?s issue five is that the lack of appearance of the appellant before the Arbitration Panel that invited him on complaint of the Respondent?s father was not part of the basis of the trial Court?s decision in this case. The learned trial Judge only made allusion to the invitation by the Arbitration Panel amongst other questions that arose in evidence when analyzing the case of the Appellant as Defendant ? such questions indeed include the failure of the Respondent?s father to sign Exhibit 1, all of which assisted the trial Court in the truth finding process to come to the conclusion at page 149 of the Record that:
The above questions which beg for answers to my mind

goes to the root of the Defendant?s case as the burden placed on the Defendant to prove that the Claimant has been divested of the property has not in my humble view been met.
Issue five is accordingly resolved against the appellant.

Having resolved the five (5) issues in this appeal against the appellant, the appeal lacks merit and it is accordingly dismissed.
I make no order as to costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother: Mojeed Adekunle Owoade, JCAE I am in total agreement with the reasoning and conclusion in the well-articulated judgment. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in it.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA. I agree with the reasoning and resolution of all the issues settled for determination in this appeal.
?I have nothing more to add.

I too dismiss the

appeal and abide by the other orders made in the lead judgment.

Appearances:

VICTOR U. ESSIEN, ESQ.For Appellant(s)

CHIEF GODWIN O. EFFIONG (JP)For Respondent(s)

Appearances

VICTOR U. ESSIEN, ESQ.For Appellant

AND

CHIEF GODWIN O. EFFIONG (JP)For Respondent

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