PASTOR SALLY EDOSOMWAN v. MR. OSAYANDE IDUGBOE (2019)

PASTOR SALLY EDOSOMWAN v. MR. OSAYANDE IDUGBOE

(2019)LCN/13792(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of January, 2019

CA/B/267/2011

RATIO

PLEADINGS: WHEN AN AVERMENT IN A PLEADING IS DEEMED ADMITTED BY THE ADVERSE PARTY

Now when is an averment in a pleading deemed admitted by the adverse party A fact is deemed admitted when it is not specifically admitted or denied by implication. See OWOSHO V DADA (1984) 7S.C. 149 at 163;
In BUHARI V INEC & ORS (2008) 19 NWLR PT. 1120 p. 246, MUKHTAR J.S.C. explained it thus:
It is a cardinal principle of law that replies to allegations or claim must be categorical and meet the averments of claim/allegations head long with proper traverse. Allegations that are material, essential and of great importance should be specifically traversed and not confined to a general or evasive denial. See the cases of WALLER STEINER V MOIR (1974) 1WLR 99, LEWIS AND PEAT V AKHIMIEN (1976) 6 S.C. 157; (1976) 6 S.C. (Reprint 159; OLALE V EKWELENDU (1989) 4 NWLR (PT 115) page 326 and OKONKWO V C.C.B. (NIG) PLC (2003) 2 ? 3 S.C. 104; (2003) 8NWLR (PT. 822) 347. Where the above principles of law on pleadings are not met then the other party is deemed to have admitted the petitioner/plaintiffs pleadings.PER TUNDE OYEBANJI AWOTOYE, J.C.A.

PLEADINGS: WHEN IS A PROPER TRAVERSE SAID TO HAVE BEEN FORMULATED IN PLEADINGS
A proper traverse arises when a party affirms a fact and the opponent denies that fact specifically or by necessary implication see EKE & ORS V OKWARANYIA (2001) 12NWLR PART 726 p. 181.
In other words in my respectful view, when two pleadings are fundamentally opposed to each other in material particular even without specific denials, one cannot be deemed to have admitted the pleading of the other on the fact. This can be gathered from community reading of the pleadings as opposed to isolated reading of the pleadings of the adversary.PER TUNDE OYEBANJI AWOTOYE, J.C.A.

COURTS: THE MAIN DUTY OF THE TRIAL COURT AND WHEN THE APPELLATE COURT WILL INTERFERE WITH SUCH DUTIES

Findings of facts are the prerogative of a trial Court. However, if they are perverse an appellate Court will not hesitate to disturb them.
According to ONNOGHEN J.S.C. in OTUKPO V JOHN & ANOR (2012) 7 NWLR PT. 1299 P. 357
It is settled law that it is the duty of the trial Court to evaluate the evidence placed before him and to ascribe probative value thereto.
It is also settled law that an appellate Court can only intervene where the trial judge fails to evaluate the evidence properly.PER TUNDE OYEBANJI AWOTOYE, J.C.A.

RELIEF: WHETHER A COURT CAN GRANT A RELIEF THAT HAS NOT BEEN CLAIMED

It is trite law that a Court cannot grant a relief not claimed see THE NIGERIA AIR FORCE V SHEKETE (2002) 12 S.C.N.J 35 at 52 – 53; EAGLE SUPER PACK (NIG) LTD V A.C.B. PLC (2006) 19 NWLR PART 1013 p. 20.PER TUNDE OYEBANJI AWOTOYE, J.C.A.

RELIEF: BY WHAT MEANS IS A RELIEF CLAIMED?

For a plaintiff, a relief is claimed through the writ of summons or statement of claim and for a defendant, it is claimed through a counter claim.
See DABUP V KOLO (1993) 9NWLR PT. 317 p. 674; OYEGBOLA V ESSO W.A. INC. (1966) ANLR 162.PER TUNDE OYEBANJI AWOTOYE, J.C.A.

CLAIM: WHETHER THE FAILURE OF PLAINTIFF’S CLAIM AUTOMATICALLY MEANS THE COUNTER CLAIM OF THE DEFENDANT WILL SUCCEED

The fact that the plaintiff claim fails does not mean the counter claim of the defendant must automatically succeed, see JERIC NIG LTD V UNION BANK OF NIGERIA (2001) FWLR (PT 31) 2913 at 2929 – 2930.PER TUNDE OYEBANJI AWOTOYE, J.C.A.

Before Their Lordships

SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYEJustice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEINJustice of The Court of Appeal of Nigeria

Between

PASTOR SALLY EDOSOMWANAppellant(s)

AND

MR. OSAYANDE IDUGBOE
{substituted for Late J.N. Idugbo by Order of Court dated 19th February, 2007}Respondent(s)

TUNDE OYEBANJI AWOTOYE, J.C.A.(Delivering the Leading Judgment): This is the judgment in the appeal filed by the appellant against the decision of the Edo State High Court decided on 29/3/2011 in Suit No. B/238/2003 Pastor Sally Edosomwan V Osayande Idugboe.

By paragraph 19 of his statement of claim, the plaintiff (now Appellant) claimed as follows:
Whereof the Plaintiff claims against the Defendants as follows:-
1) A DECLARATION that the Plaintiff is the person lawfully entitled to the grant of a Statutory Right of Occupancy of the parcel of land measuring 50 feet by 100 feet lying and situate at Adolor Street, between Second Commentary Road and Erhumwunse Street, Uzebu Quarters, Benin City, Edo State which land is sandwiched between the fence of late Mrs. Theresa Ojo to the right, the house of Mr. Sunday Ekhator on the left and bounded at the rear by the wall fence of Mr Victor Igbinovia.
2) The Sum of N500,000.00 being special and General Damages for the Defendants trespass on the land and constant harassment of the Plaintiff using thugs and hoodlums.
3) AN ORDER OF PERPETUAL INJUNCTION restraining

the Defendant whether by himself, his agents, servants, cohorts and representatives from further claiming ownership of the said land and/or trespassing on same or doing anything whatsoever and howsoever on the land inconsistent with the Plaintiff?s right of ownership of same.?

In response apart from filing a statement of defence the defendant counter claimed claiming
1) A DECLARATION that the Defendant is the person lawfully entitled to the grant of a Statutory Right of Occupancy of the remaining parcel of land measuring 100 feet by 40 feet lying and situate at Adolor Street, Uzebu Quarters, Benin City, Edo State which land is sandwiched between the fence of late Mrs. Theresa Ojo to the right (to whom the defendant once sold part of the land to), the house of the former caretaker of the Defendant Mr. Sunday Ekhator on the left and bounded at the rear by the wall fence of Mrs. Victor Igbinovia.
2) The Sum of N600,000.00 (six hundred thousand Naira) being special and General Damages for the Plaintiff?s trespass on the land and constant disturbance of the Defendant on his land together with the cost of sand.

3) AN ORDER OF PERPETUAL INJUNCTION restraining the Plaintiff whether by himself, his agents, servants, cohorts and representatives from further laying claim of ownership of the said land and/or trespassing on same or doing whatsoever and howsoever on the land inconsistent with the Defendant?s right of ownership of same.?

And after hearing the parties, the learned trial judge entered judgment in favour of the defendant (now Respondent) in the following terms:
?In the circumstances, I am satisfied that Defendant is entitled to judgment and this judgment is hereby entered in his favour in the following terms:-
1) IT IS HEREBY DECLARED that the Defendant is the rightful owner of a piece or parcel of land measuring 100 feet by 36 feet, lying and situate along Adolor Street, Uzebu Quarters, Benin City which is more particularly described and verged RED and demarcated with blue in Survey Plan AJUS/ED/02/2003, Exhibit ?M? in this proceedings and also shown in Exhibit ?N? Litigation Survey Plan and property Survey Plan Respectively.
2) The Plaintiff is hereby restrained by himself, his

agents and servants from further entering the land specified above.
3) The Plaintiff shall pay N20,000.00 (Twenty Thousand Naira) as damages for the act of trespass.
4) The Plaintiff shall also pay cost assessed at N20,000.00 (Twenty Thousand Naira).?

Dissatisfied with the said judgment the appellant filed an appeal challenging it on 12 grounds:
The grounds of appeal are:
?GROUND OF APPEAL
1. The judgment is against the weight of Evidence.
Additional grounds of appeal shall be formulated and filed on receipt of the record of appeal.
ADDITIONAL GROUNDS OF APPEAL
2.The learned trial judge erred in law when he held that paragraph 15 of the defendant?s further Amended Statement of Defence No. 1 was not denied and that the Plaintiff is deemed to have admitted same.
PARTICULARS OF ERROR
i. PW1 and PW2 gave evidence of how the Oba?s approval mentioned in that paragraph was obtained from the Uzebu Plot Allotment Committed, Ward 20k, Benin in 1961.
(II) The totality of the Plaintiff?s Amended Statement of Claim particularly paragraph 8,9 and 10 and Amended Reply to Statement of Defence show that the fact in

paragraph 15 is not admitted by the Plaintiff.
(III) Defendant witnesses did not testify about the Oba?s approval that same was made for purpose of this case.
(IV) No fact or evidence positively show that Paragraph 15 was admitted by the Plaintiff.
(V) Section 75 of the Evidence Act was wrongly applied by the learned trial judge.
3. The learned trial judge erred in land when he laid emphasis and undue consideration on the irrelevant fact of Plaintiff?s failure to prove the facts in paragraph 5(i), (ii) and (iii) of the Amended Reply to Further Amended Statement of Claim and the fact of defendant?s sale of 100ft by 100ft to Mrs. Ewemade Ojo vide Exhibit J and I at the expense of relevant facts proved by the Plaintiff in evidence.
PARTICULARS OF ERROR
I. Paragraphs 5 (i), (ii) and (iii) of Amended Reply to Further Amended Statement of Defence are averments only in challenge of the Defendant?s case and not in proof of Plaintiff?s case.
II. Learned trial judge himself stated correctly that it is not every fact pleaded that party must lead evidence on but only those facts that are crucial and relevant

to issues for determination in the Suit.
III. The issue raised in the averments in paragraphs 5 (i), (ii) and (iii) of Amended Reply to Further Amended Statement of Defence are not central to Plaintiff?s case.
IV. The portion of land measuring 100 feet by 100 feet allegedly transferred by Defendant?s father to Mrs Tessy Ewemade Ojo vide Exhibits J and I is different from the land in dispute.
4. The learned trial Judge erred in law when he held ?Based on the above case, I am satisfied that the defendant has proved his ownership of the land in dispute vide the fifth way of proving title to land. The defendant has proved title by one of the ways enunciated in the classicus case of Idundun V Okumagba (1976) NMLR 223?.
PARTICULARS OF ERROR
I. The cases of Nanna V Nanna (2006) 3 NWLR (PT 966) 1 at 4 and Nwokorobia V Nwogu (2009) 10 NWLR (PT 1150) 553 relied on by the learned trial judge are not applicable to the facts and circumstance of this case.
II. The learned trial Judge failed to consider the cases of Okolo V Dakolo (2006) 14 NWLR (Pt 1000) 401, Ojoh V Kamalu (2005) 18 NWLR (Pt 958) 523 and Kyari V Akali

(2001) 11 NWLR (pt 724) 412 on the limitations of the application of Section 46 and 146 of the Evidence Act.
III. The Plaintiff pleaded a documentary root of title to the land and the defendant also pleaded a documentary root of title to the land.
IV. The PW1 and PW2 proved the title of the Plaintiff by their evidence in Court but the defendant called no member of the Uzebu Plot Allotment Committee Ward 20k in proof of his averments as to the allocation of the land in dispute to his late father.
V. The defendant pleaded that his late father had 100ft by 140ft but his purported approval (Exhibit G) is for 200 feet by 200 feet.
VI. The DW1 in her evidence under cross-examination did not know whom land was allocated to first as between her father and the neigbours
VII. The DW1 also in her evidence under cross-examination did not know whether the land was measured before her father applied for it before the Plot Allotment Committee members signed and recommended her late father?s application, and before the Oba of Benin approved it.
VIII. There is no evidence that the land in dispute is surrounded by other lands belonging to the defendant?s father.

IX. The learned trial Judge relied on survey Plans, Exhibit M and N in proof of title to the land.
X. The PW1 under cross-examination never stated in his evidence that Mr. J.N. Iduboe sold a portion of his land to Mrs. Tessy Ewemade Ojo behind the land in dispute as said by the learned trial Judge.
5. The learned trial Judge erred in law when he held ?from the above case, the analogy is that Mr. J.N. Idubor (sic) sold a portion of his land to Mrs. Tessy Ewemade Ojo. I am entitled to infer that the land in dispute is a part of the remainder of land of Mr. J.N. Idubor (sic) from which he sold a portion to Mrs. Tessy Ewemade Ojo. My reliance for this assertion is from the third method of proving ownership of land. By acts of a person or persons claiming the land such as selling, leasing, renting out or farming on it. In this instant case both Plaintiff witness and defendant witnesses have given evidence to support the fact that the defendant?s father, MR. J.N. Idubor exercised his right of sale over the land right next to the land in dispute.

PARTICULARS OF ERROR
(I) No Plaintiff witness gave evidence in favour of the defendant as to the fact that the defendant?s father sold a portion of his land to Mrs. Tessy Ewemade Ojo
(II) The case of Usman V Kaduna State House of Assembly (2008) All FWLR (Pt 391) 78 relied on by the learned trial Judge is in application to this case.
(III) PW1 under cross-examination stated that he did not know whether defendant?s father sold his land to Mrs. Tessy Ewemade Ojo.
6. The learned trial judge erred in law when he held ?I am minded to attach more weight to the documentary evidence tendered by the defendant?s witness supported by their oral testimony against the evidence adduced by the Plaintiff?.
PARTICULARS OF ERROR
I.The Plaintiff tendered original documents of title and the defendant tendered photocopies of documents to title.
II. There was no evidence led by the defendant to discredit the document of title tendered by the Plaintiff.
III. PW1 and PW2 adduced oral evidence in proof of the origin of Exhibit A, tendered by the Plaintiff.
IV. The PW1 was a member of the Uzebu Plot Allotment Committee, Ward 20k, Benin City who

testified of how the committee allocated the land to PW2 and issued Exhibit A to the PW2, the Plaintiff?s predecessor in title.
V. The defendant called no member of the Plot Allotment Committee to prove his grant and his document of title, Exhibit G is incongruous with the dimension of land he claimed to be granted.
VI. Issues were not joined on the age of the Plaintiff and the Plaintiff?s evidence of his age under cross-examination was used to assess his reliality and grant of the land to the PW2 predated the sale to the Plaintiff.
7. The learned trial judge erred in law when he held ?the Plaintiff placed heavy reliance on exhibit A, the Oba?s approval and with the lack of probative value on the Oba?s approval, the bottom is knocked out of Plaintiff?s case and that the claims of the plaintiff based on Exhibit A cannot succeed.?
PARTICULARS OF ERROR
I. The PW1 testified unchallenged that he was a member of the Uzebu Plot Allotment Committee that allocated the land to the PW2 IN 1961 vide Exhibit A and he was also a pointer to the committee.
II. The defendant led no evidence to discredit Exhibit A

and evidence was not led to prove the purported allocation to defendant?s father vide Exhibit G.
III. There was no evidence regarding the purported alteration of Exhibit A.
8. The learned trial judge erred in law when he held that the exact location of the land in dispute is not certain from the evidence proffered before the Court both by PW2 and Plaintiff himself.
PARTICULARS OF ERROR
I. The learned trial judge had earlier found in the judgment that both parties established before Court that the land in dispute is lying along Adolor Street and is off 2nd Commentary Road and off Erhunmwunse Street, Uzebu Quarters, Benin City and that this case is one of both Plaintiff and Defendant claiming the same piece of land
II. The identity of the land was not in dispute between the parties.
III. Both the Plaintiff and defendant prepared and filed Exhibits B AND M respectively which are survey plans of the land in dispute.
IV. The learned trial judge placed undue emphasis on minor differences in the description of the land by the parties especially the Plaintiff and his witnesses.
V. PW1 and PW2 gave evidence that the land that was

approved for the PW2 is the land now in dispute and PW3 identified the land in Exhibit B.
VI. Evidence on record is that Adolor Street is between 2nd Commentary road and Erhunmwunse Street.
9. The learned trial judge erred in law when he held
?from the totality of evidence adduced by the parties, when placed on the imaginary scales of justice, I find that the Plaintiff has not been able to establish with credible evidence that the land in dispute was acquired by his predecessor in title in 1961. The Plaintiff has failed to place a credible approval before this Court as his root of title.?
PARTICULARS OF ERROR
I. The learned trial judge did not place the case of the Plaintiff and the evidence on an imaginary scale but rather attacked the Plaintiff?s case in a bid to favour the defendant from the beginning of the judgment.
II. The learned trial judge failed to comply with the Principles enunciated in the case of Odofin V Mogaji on the evaluation of evidence.
III. The vital and crucial evidence of PW1 and PW2 on the allocation of the land to the PW2 was not discredited by the defendant yet the learned trial judge did not evaluate it.

10. The Learned trial judge erred in law when he held ?Between the Plaintiff and the defendant in this instant case, it is my own assessment that the defendant has proved a better title to the land in dispute and that the plaintiff trespassed into the land granted to the defendant?.
PARTICULARS OF ERROR
I. The learned trial Judge failed to justify and dispassionately assess or evaluate vital evidence of the Plaintiff?s witnesses as to the allocation of the land.
II. The learned trial Judge relied on alleged acts of possession to defeat evidence of title that has not been discredited by the defendant.
11. The learned trial judge erred in law when he held that,?the defendant complied with the procedure for acquiring land in Benin in accordance with Benin Customary law as enunciated in Aigbe v Edokpolor (1977) 2 SC1, Okeaya-Inneh V Aguebor (1970) 1 ANLR II, Finnih V Imade (1992) 7LRCN 117 in respect of the land in dispute and that the defendants father duly applied for and was granted title to the land.?
PARTICULARS OF ERROR
I. No member of the Plot Allotment Committee, Ward

20k was called in evidence to prove the purported allocation to defendant?s father.
II. The PW1, a member of the Plot Allotment Committee Ward 20k was not cross-examined on the purported allocation of the land in dispute to defendant?s father.
III. DW1 who testified on the purport allocation to her father stated under cross-examination that she was only five years old at the time of the purported allocation to her father in 1965.
IV. The learned trial Judge used only hearsay evidence to the DW1 to find in favour of the defendant.
V. DW2, the licensed Surveyor gave no evidence of the purported allocation to the defendant?s father.
12. The learned trial judge erred in law when he held that, ?in the circumstances, I am satisfied that Defendant is entitled to judgment and accordingly entered judgment for the defendant for the counter claim” which was not proved.
PARTICULARS OF ERROR
I.The defendant?s claim to the land in dispute is founded only on alleged possession of the land in dispute.
II. Plaintiff?s claim is based on title which was proved at the trial.?

After transmission of record of appeal to this Court, parties filed and exchanged briefs of argument

SUMMISSION OF COUNSEL
APPELLANT AMENDED BRIEF OF ARGUMENT
The Appellant?s amended brief of argument was deemed filed on 13/10/16 and settled by his counsel E.F. Osifo who formulated Eight (8) issues for determination.
1) Whether having regard to the totality of the pleadings of the Appellant, particularly paragraph 8, 9,and 10 of the amended Statement of claim and evidence of PW1 and PW2 on the origin of Exhibit ?A? and learned trial judge was right when he held that the Appellant admitted paragraph 15 of the Respondent further Amended Statement of Defence No. 1
2) Whether the learned trial judge was right when he placed undue emphasis on Appellant?s alleged failure to prove the averment in the paragraph 5 (i) (ii) and (III) of the Amended Reply to Statement of Defence when the facts therein were not material or central to the Appellants case.
3) Whether the learned trial judge was right when he involved Section 46 of the Evidence Act and unproven act of possession to find for the Respondent as the

owner of the land not minding the parties pleaded roots of title and the Supreme Court cases commended to him on the limitation of the application of Section 46 and 146 of the Evidence Act to the circumstances of this case.
4) Whether the learned trial judge was right when he placed more weight on Exhibit ?G? tendered by the respondent at the expense of Exhibit ?A? tendered by the Appellant despite the undiscredited evidence of PW1 and PW2 as to the allocation of the land to the Appellant?s predecessor in title.
5) Whether having regard to the exhibit ?B? the litigation Survey Plan of the Appellant and the learned trial judge’s earlier finding that both the Appellant and Respondent are claiming the same land, the trial judge was right when he subsequently held that the Appellant had not identified with certainty, the exact location of the land in dispute.
6) Whether from the totality of evidence adduced at the trial, the learned trial judge was right when he held that the Respondent has proved a better title than the Appellant and that the Appellant trespassed into respondent?s land.

7) Whether the learned trial judge was right when he held that the Respondent?s late father complied with the procedure for acquiring land in Benin in accordance with Benin customary law when there was no admissible evidence adduced by the Respondent in that regard.
8) Whether the learned trial judge was right when he entered judgment for the Respondent who had no counter-claim before the Court and/or when same was not proved.

ISSUES 1 AND 2
The Appellant argued issue one and two together and submitted that the trial judge erred when he wrongly applied the provision of Section 75 of the Evidence Act and stated that the Appellant admitted the paragraph of the respondent further amended Statement of defence whereas a complete study of all the averments would have revealed that the appellant actually denied same and they relied on the case of Agundo V Gberbo (1999) NWLR (Part 617) 71.

ISSUES 3 AND 4
The Appellant argued issue 3 and 4 together and submitted that the learned trial judge erred in law when he accepted the Respondent title document Exhibit ?G? against the Appellant?s title document Exhibit ?A? having regard to PW2

evidence which was cogent, strong, firm and unshaken under cross-examination having failed to consider the various means of proving title to land while placing reliance on Section 46 of the Evidence Act. He placed reliance on the case of Idundun V Okumagba (1976) 8 -10 SC 227.

ISSUES 5
The Appellant counsel submitted that the trial judge was not right when she held that the Appellant did not identify with certainty the exact location of the land in dispute, considering the fact that issues were not joined as to the identity of the land and the trial judge having earlier posited that both Appellant and Respondent are claiming the same land. He submitted that where there is a Survey Plan that is properly proved, oral evidence cannot be taken for or against the plan.

ISSUES 6,7, AND 8
The Appellant?s Counsel argued these three issues together and submitted that the learned trial judge did not properly evaluate the evidence before him as put forward by both plaintiff and defendant and their witness, thereby relying on act of possession by the defendant rather the root of title as canvassed by both parties. Following the points canvassed

they pray this Honourable Court to allow the appeal.

RESPONDENT?S BRIEF OF ARGUMENT
The Respondent brief was deemed filed on 1/3/2016 and settled by Mrs. U. Uwumarogie. The Respondent formulated seven (7) issues for determination to wit;
1. Whether the learned trial judge was in error when he held thus: paragraph 15 of the Respondent further amended statement of defence No. 1 was not denied and that the Appellant is deemed to have admitted same.
2) Whether the learned trial judge rightly held that the Appellant failed to prove the facts in paragraph 5(1) and (II) of the Amended Reply to further Amended Statement of Defence.
3) Whether the learned trial judge rightly held thus: ?from the above case, the analogy is that Mr. J.N. Idubor sold a portion of this land to Mrs. Tessy Ewemade Ojo. I am entitled to infer that the land in dispute is a part of the reminder of the land of Mr. J.N. Idubor from which he sold a portion to Mrs. Tessy Ewemade Ojo.?
4) Whether the learned trial judge was right when he relied on the documentary evidence tendered by the Respondent and discountenced Exhibit ?A?, the

Oba?s Approval tendered by the Appellant in prove of its case for lack of probative value and credibility.
5) Whether the learned trial judge erred when he held that the Appellant has not established with certainty the exact location of the land he is claiming from the evidence before Court.
6) Whether the learned trial judge rightly held that the Respondent proved a better title to the land in dispute by one of the ways enunciated in the locus classicus case of IDUNDUN V OKUMAGBA (1976)NMLR 223
7) Whether it was apparent from the judgment that the learned trial judge adequately evaluated the totality of the evidence before him to justify his dismissal of the Applicant?s claim.

ISSUES 1 AND 2
The Respondent?s counsel joined issues one and two together and argued that the Appellant admitted the Respondent?s averment in paragraph 15 of Further Amended Statement of Defence and there is nowhere the Appellant denied same in his reply. He further argued that paragraph 15 (i) (ii) and (iii) of the Amended Reply to further statement of Defence and submitted that averments not controverted is

deemed admitted, thus, the learned trial judge was right when he held that the Appellant admitted the averment in paragraph 15 of the further amended statement of defence.

ISSUES 3 & 6
On these issues, the Respondent counsel argued that the Respondent proved a better title compared to that of the Appellant whose probative value was in doubt and submitted that the Respondent having fulfilled one of the mode of proving title to land as contained in IDUNDUN VS OKUMAGBA, the Court was right in its judgment in favour of the Respondent.

ISSUE 4
The Respondent counsel argued that the Court is at liberty and infact duty bound to look at its record and evaluate evidence both oral and documentary and submitted that any document which losses it probative values becomes worthless, hence, the judge having evaluated both Appellant and Respondent?s evidence and Exhibit was right in his judgment to hold that the altered document ?Exhibit A? of the Respondent lacked probative value and that cannot make him succeed.
ISSUE 5
The Respondent counsel argued on this issue that both Appellant and his witness failed to accurately described the

land in dispute, whereas the Respondent testimonies were unshaken. He submitted hence, that it is the duty of a person who claims a declaration to land to state with certainty the description of the location of the land he claims.

ISSUE 7
The Respondent counsel argues that it is the learned trial judge who will evaluate evidence of parties and their witnesses alongside their misdemeanor and then place the evidence on the imaginary scale of justice before judgment, he submitted that this was properly done in this case by the learned trial judge before giving judgment to the Respondent whose evidence outweighed that of the Appellant and urge this Court to dismiss the Appeal.

RESOLUTION OF ISSUES
In this appeal after deeply considering the issues donated by both parties, I hereby adopt the eight issues as formulated by the appellant being the aggrieved party.

I shall take the issues as argued by the appellant in his brief of argument in seriatim.
ISSUE 1 & 2
1) Whether having regard to the totality of the pleadings of the Appellant, particularly paragraph 8,9,and 10 of the Amended Statement of Claim and the

evidence of PW1 and PW 2 on the origin of Exhibit ?A? and learned trial judge was right when he held that the Appellant admitted paragraph 15 of the Respondent further Amended Statement of Defence No. 1.
2) Whether the learned trial judge was right when he placed undue emphasis on Appellant?s, alleged failure to prove the averment in the paragraph 5 (i) (ii) and (III) of the Amended Reply to Statement of Defence when the facts therein were not material or central to the Appellant?s case.

The paragraph referred to in the above issues are paragraph 8 -10 of the Amended Statement of Claim and paragraph 5 of the Amended Reply to Statement of Defence and paragraph 15 of the Further Amended Statement of Defence.
The paragraph read as follows:
?PARAGRAPH 8
The Plaintiff avers that some decades ago, his said vendor had applied to the Ward 20k Plot Allotment Committee for the parcel of land now in dispute. The Plot Allotment Committee then duly commission its officers to investigate the status of the land and when it was satisfactorily shown that the land had not been previously allotted to anybody, the application by the

plaintiff?s vendor was recommended to the Oba of Benin for approval.
PARAGRAPH 9
The Plaintiff states that the then Oba of Benin, Oba Akenzua II duly and properly approved the application which shall be founded upon at the trial of this case.
PARAGRAPH 10
The Plaintiff states that the Plot Allotment Committee?s pointer (one of whom is now late) then took the Plaintiff?s vendor to the land, showed its boundaries to him and planted ward Beacons blocks on its boundaries while copies of the Oba?s approval were given to the Plaintiff?s said vendor.?
PARAGRAPH 5 (Amended Reply to Statement of Defence)
The Plaintiff states that the approval referred to in paragraph 14 of the Further Amended Statement of Defence was prepared by the Defendant for the purpose of this case. It is therefore a forged document
PARTICULARS OF FORGERY
I. The land in dispute was not approved for the defendant?s father as only 100feet by 100feet was approved for him.
II. The plot Allotment Committee never approved any plot whose measurement was less than 50feet. All approved lands were either 50feet by 100feet, 150feet

by 100feet or 150feet by 200feet etc. At no time did the committee approve any Plot of 140feet by 100feet to anybody including the Defendant?s father now late.
III. When the Defendant?s father presented the said approval at the Police Station, the features including the purported Oba?s signature and the Secretary to the Oba?s purported signature on the approval were actually not their personal signatures.
PARAGRAPH 15 (Further Amended Statement of Defence)
The Defendant in further denial of paragraph 10 of the Plaintiff?s Statement of Claim states further that the purported Oba?s Approval is a ruse, deceit and prepared for the purpose of this case.
PARTICULARS
I. As at 1961, there was no Street known as 2nd Cemetery Land and as at 1970, it was a proposed Road.
II. That the survey was done before the creation of Bendel State when Benin was under Midwestern Region of Nigeria and there was nothing like 2nd Cemetery Lane.
III. That the area has never been known as 2nd Cemetery lane, but Adolor Street, and the local Government has always known the area as Adolor Street and not 2nd Cemetery Lane.<br< p=””

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IV. That as the time when their father surveyed the land in dispute, it was a bush and there was no road but only a proposed road as shown in the survey plan made when Benin City was under the Midwestern Region.
V. The Defendant will rely on the Certified True Copy of the original copy of the survey made by Surveyor O.E. Omoregie who is now late to prove this point.

Now when is an averment in a pleading deemed admitted by the adverse party? A fact is deemed admitted when it is not specifically admitted or denied by implication. See OWOSHO V DADA (1984) 7S.C. 149 at 163;
In BUHARI V INEC & ORS (2008) 19 NWLR PT. 1120 p. 246, MUKHTAR J.S.C. explained it thus:
?It is a cardinal principle of law that replies to allegations or claim must be categorical and meet the averments of claim/allegations head long with proper traverse. Allegations that are material, essential and of great importance should be specifically traversed and not confined to a general or evasive denial. See the cases of WALLER STEINER V MOIR (1974) 1WLR 99, LEWIS AND PEAT V AKHIMIEN (1976) 6 S.C. 157; (1976) 6 S.C. (Reprint 159; OLALE V EKWELENDU (1989) 4 NWLR

(PT 115) page 326 and OKONKWO V C.C.B. (NIG) PLC (2003) 2 ? 3 S.C. 104; (2003) 8NWLR (PT. 822) 347. Where the above principles of law on pleadings are not met then the other party is deemed to have admitted the petitioner/plaintiff?s pleadings.
A proper traverse arises when a party affirms a fact and the opponent denies that fact specifically or by necessary implication see EKE & ORS V OKWARANYIA (2001) 12NWLR PART 726 p. 181.
In other words in my respectful view, when two pleadings are fundamentally opposed to each other in material particular even without specific denials, one cannot be deemed to have admitted the pleading of the other on the fact. This can be gathered from community reading of the pleadings as opposed to isolated reading of the pleadings of the adversary.
It seems to me the defendant was attacking the document which formed the basis of the case of the plaintiff. The Plaintiffs case presupposed the validity of the Oba?s approval which the defendant attacked in his pleading. Issues are therefore deemed to have been joined on the point. See AKAORE & ORS V NWOSU & ORS (1997) NWLR (PT. 482) 478, EKE V OKWARANYIA (supra)

I am therefore of the firm view that the learned trial judge with due respect, erred to have held that the plaintiff admitted the contention of the defendant in paragraph 15 of the further Amended Statement of Defence. I therefore resolve issue No. 1 in favour of the appellant

On Issue No, 2, it is true the plaintiff failed to adduce evidence in support of his allegation that the approval referred to in paragraph 14 of the further Amended Statement of Defence was forged, as averred in paragraph 5(i ?ii) of the Amended Reply to further Amended Statement of Defence. If the averment in paragraph 5 of the Amended Reply failed for the above reason, should other averments in the plaintiff?s pleadings even if backed by evidence fail with it? The answer in my respectful view is no. The Plaintiffs case can still stand in the absence of paragraph 5 of the Amended Reply to further Amended Statement of Defence. Paragraph 5 of the Amended Reply is not crustal to the plaintiffs case see AJAO & ORS V ALAO (1986) 5NWLR PT. 45. P.802. I therefore resolve issue No. 2, in favour of the Appellant.

ISSUE 3
Whether the learned trial judge was right when he invoked and relied on Section 46 of the Evidence Act and unproven acts of possession to find for the respondent as the owner of the land not minding the parties pleaded root of title and the Supreme Court cases commended to him on the limitation of the application of Section 46 and 146 of the Evidence Act to the circumstances of this case.
ISSUE 4
Whether the learned trial judge was right when he placed more weight on Exhibit ?G? tendered by the respondent at the expense of Exhibit ?A? tendered by the Appellant despite the undiscredited evidence of PW1 and PW2 as to the allocation of the land to the appellants predecessor in title.

I shall proceed to resolve these two issues by first asking whether the appellant proved his case at the lower Court.

The two contending parties based their respective cases on approved sale of the land in dispute at different points in time. The plaintiff?s case was that he acquired the land in dispute by purchase from Mr. Ikponwonsa Akenuwa in 1994. He gave evidence inter alia thus:
?I know the land in dispute. The land is along Adolor

off 2nd Cemetery Road, Uzebu Quarters Benin City. I am the owner of the land. The land is 50ft by 100ft. I acquired the land by purchase from Mr. Ikponmwonsa Akenwe. Pw2 in 1994, I paid N100,000.00 for the land. I was given an Oba?s approval when I paid for the land. The Oba?s approval belong to Mr. Akenwe Ikponmwosa. In the year 2000 I met my lawyer to prepare a document for the said land. The document was between me and Mr. Akenwe who sold the land to me. The land my neigbour to the right is one late Mrs. Tessy Ojo. To my left one Mr. Sunday Ekhator Edoloyi. At the back is Prince Enoma Eweka. I bought the land from Mr. (sic) he told me he acquired the land. He told me he applied for the land through Uzebu Plot Allotment Committee Ward 20/k, Uzebu Quarters, Benin and it was granted to him by the Oba of Benin. He was give the approval by the Oba of Benin. Yes, I did. I cleared the land.

He tendered the Oba?s approval and it was admitted as Exhibit A. He also tendered the transfer agreement made in respect thereof as exhibit. It was admitted as Exhibit ?E?.

?A member of the defunct Plot Allotment Committee Uzebu

Quarters Ward who acted as pointer in the sale of land transaction, Mr. Isaac Ogbonwan gave evidence to confirm same. He was PW1. The original owner of the land in dispute from who the land was purchased confirmed the transaction. He was PW2.

PW3 Francis Iyawe, a registered Surveyor drew the survey plan of the said land. He described the boundaries of the land clearly. He denied having been told that the defendant sold any piece of land to one Tessy Ojo.
The Plaintiff subsequently gave evidence.

On the other hand, the defendant son, Enatoman Mercy gave evidence and tendered photocopies of documents namely Oba?s approval, purchase receipt and sale of land agreement.
He called Surveyor Sonny Ajoebitsi Okomo as his witness. He tendered the survey plan of the land. It was admitted as Exhibit M.

Mrs. Tessy Ewemade Ojo who allegedly bought land from the defendant was not called as a witness. Nobody came from Oba?s palace to confirm the sale of land transaction to the defendant. No member of Uzebu Plot Allotment Committee came to give evidence in support of the defence.

?I am therefore worried that his Lordship inspite of having

earlier held in his judgment that ?this case is clearly that of both Plaintiff and Defendant claiming the same piece of land”, proceeded to fault and disbelieve the evidence of the plaintiff based on his erroneous description of the land in dispute. His lordship on page 163 of record found as follows:
?the claimant for land in order to succeed must show clearly by evidence the exact location of the land he is claiming. From the evidence led in Court by plaintiff I am unable to come to the conclusion that he has described the land in dispute with clarity?

Besides, what happens to the evidence of PW2 who took active part in the sale of the land in dispute and gave evidence effectively to this effect. He Ikponmwonsa, PW2 gave evidence at the lower Court inter alia thus:
?In 1961, I went to Uzebu Plot Allotment Committee to come members for building purposes. The people have delegates to show me the land. They took me there. They showed me the land. They measurement. They showed me the land and told the committee that there is no dispute on the land. I was given a form to fill. The

Oba?s approval?. I was asked to come back later. After some months the approval was given to me. When I got there, they gave me the approval. That is the approval. The witness referred to Exhibit A.

This witness gave direct oral evidence of what he witnessed, unlike the plaintiff who purchased the land from the original owner and did not know how the Oba?s approval was obtained. While the plaintiff?s evidence was disbelieved the pertinent evidence of pw2 was not disbelieved. To my mind and with due respect to the learned trial judge, the evidence of PW2 was cogent and strong enough to sustain the Plaintiffs case even if the plaintiff fumbled in his evidence before the trial Court.

The evidence of PW2 is not hearsay evidence. The defendant did not call any member of the allocation committee and no reason was given for the lapse. He who asserts must prove. See ANAEZE V ANYASO (1993) 5NWLR PT. 291 P. 1; UNIVERSITY PRESS LTD V I.K. MARTINS (2000) 4NWLR PT 654 P. 584; One wonders how an unconfirmed document will stand in the face of Exhibit A and the direct evidence of PW2 who witnessed the transaction.

Findings of facts are the prerogative of a trial Court. However,

if they are perverse an appellate Court will not hesitate to disturb them.
According to ONNOGHEN J.S.C. in OTUKPO V JOHN & ANOR (2012) 7 NWLR PT. 1299 P. 357
It is settled law that it is the duty of the trial Court to evaluate the evidence placed before him and to ascribe probative value thereto.
It is also settled law that an appellate Court can only intervene where the trial judge fails to evaluate the evidence properly.?
I find the findings of fact of the learned trial judge to the effect that the evidence of the plaintiff is unreliable and perverse in the light of the above. I therefore resolve issue 4 in favour of the appellant, Exhibit A tendered by the plaintiff in the light of the evidence adduced at the lower Court stood unchallenged by any credible evidence. It is credible as it has been established by the direct evidence of PW2.
It seems clear to me that the plaintiff proved his case before the lower Court and there was absolutely no need to rely on Sections 46 and 146 of the Evidence Act. The evidence adduced by PW2 and Exhibit A are conclusive. There is no admission by the plaintiff that the surrounding land to the

land in dispute belonged to the defendant. See EZEAKABEKWE & ORS V EMENIKE (1998) 11 NWLR PT. 575, P. 529. It is erroneous to hold that the plaintiff so admitted. The said finding is not supported by evidence on record.

ISSUE 5
Whether having regard to the exhibit ?B? the litigation Survey Plan of the Appellant and the learned trial judge?s earlier finding that both the Appellant and Respondent are claiming the same land, the learned trial judge was right when he held that the Appellant had not identified with certainty, the exact location of the land in dispute.

I resolve this issue in favour of the appellant for reasons aforestated in this judgment on the certainty of the boundaries of the land in dispute.

ISSUES 6,7, AND 8
In my view resolution of issue No. 8 answers issues 6 and 7 formulated by the appellant.

ISSUE NO 8
Whether the learned trial judge was right when he entered judgment for the Respondent who had no counter-claim before the Court and/or when same was not proved.
ISSUE NO. 6
Whether from the totality of evidence adduced at the trial,

the learned trial judge was right when he held that the Respondent has proved a better title than the Appellant and that the Appellant trespassed into respondent?s land.
ISSUE NO. 7
Whether the learned trial judge was right when he held that the Respondent?s late father complied with the procedure for acquiring land in Benin In accordance with Benin customary law when there was no admissible evidence adduced by the Respondent in that regard.

Issue 8 hinges on the final orders granted by the lower Court.
The learned trial judge ordered as follows:
?In the circumstances, I am satisfied that Defendant is entitled to judgment and this judgment is hereby entered in his favour in the following terms:-
1) IT IS HEREBY DECLARED that the Defendant is the rightful owner of a piece or parcel of land measuring 100 feet by 36 feet, lying and situate along Adolor Street, Uzebu Quarters, Benin City which is more particularly described and verged RED and demarcated with blue in Survey Plan AJUS/ED/02/2003, Exhibit ?M? in this proceedings and also shown in Exhibit ?N? Litigation Survey Plan and property Survey Plan Respectively.

2) The Plaintiff is hereby restrained by himself, his agents and servants from further entering the land specified above.
3) The Plaintiff shall pay N20,000.00 (Twenty Thousand Naira) as damages for the act of trespass.
4) The Plaintiff shall also pay cost assessed at N20,000.00 (Twenty Thousand Naira).?

It is trite law that a Court cannot grant a relief not claimed see THE NIGERIA AIR FORCE V SHEKETE (2002) 12 S.C.N.J 35 at 52 ? 53; EAGLE SUPER PACK (NIG) LTD V A.C.B. PLC (2006) 19 NWLR PART 1013 p. 20. For a plaintiff, a relief is claimed through the writ of summons or statement of claim and for a defendant, it is claimed through a counter claim.
See DABUP V KOLO (1993) 9NWLR PT. 317 p. 674; OYEGBOLA V ESSO W.A. INC. (1966) ANLR 162. The fact that the plaintiff claim fails does not mean the counter claim of the defendant must automatically succeed, see JERIC NIG LTD V UNION BANK OF NIGERIA (2001) FWLR (PT 31) 2913 at 2929 ? 2930. ?In this appeal, the reliefs granted by the learned trial judge lacked the pedestal of any counter claim to rest on? The defendant initially filed statement of defence/counter claim

dated 26/11/2003 (see pages 7-13 of record of appeal.) On 18/7/08 the defendant sought and obtained leave to amend Amended Statement of Defence, in consequence of which FURTHER AMENDED STATEMENT OF DEFENCE NO 1 was filed. (see page 22-28) of record of appeal.
It should be noted that the defendant left out the counter claim in his subsequent amendment. It is trite law that a counter claim even though distinct , is part of the statement of defence see BENIN RUBBER PRODUCERS COOPERATIVE MARKETING UNION LTD. V OJO & ANOR (1997) 9NWLR PT. 521 at 388. See also Order 25 Rule 16 of Bendel State High Court Civil Procedure Rules (applicable in Edo State).
Now, an amendment of pleadings dates back to the date the pleading was filed. See ENIGBOKAN V AIICO (NIG) LTD (1994) 6 NWLR (PT. 348) 1, KATTO V C.B.N. (1999) 6 NWLR (PT 607) 390 AT 412, REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA V NAMA (2014) 8NWLR PT. 1408 P.1.
In my respectful view, the defendant having left out the counter claim from his subsequent amendment to the statement of defence, the counter claim should be deemed to have been abandoned and jettisoned. In short, there was

no extant counter claim to base the reliefs sought by the defendant at the lower Court.
The relief granted to the defendant cannot in the light of the above stand. They are like a house built on sand which must collapse like a pack of cards.

Besides, as aforestated the case of the defendant was heavily reliant on photocopies of documents which were never substantiated by any eye-witness in Court. He also failed to call any member of the allocation committee from Oba?s palace and he gave no reason for this lapse.
I have no hesitation in holding that the findings of fact of the learned trial judge are with due respect perverse and deserve to be disturbed.
I resolve issues 6,7, and 8 in favour of the appellant.
This appeal has merit it is hereby allowed.

The judgment of Edo State High Court in SUIT NO. B/238/03: PASTOR SALLY EDOSOMWAN V MR. OSAYANDE IDUGBOE delivered on 29/3/2011 is hereby set aside in its entirety.
Instead, it is hereby ordered that the plaintiff?s case succeeds.
a) The Plaintiff?s claim against the defendant for declaration that the plaintiff is the person lawfully

entitled to the grant of a statutory right of occupancy of the parcel of land measuring 50ft by 100ft lying and situate at Adolor Street between 2nd Commentary Road and Erhunmwunse Street, Uzebu Quarters Benin City Edo State which land is sandwiched between the fence of late Mrs. Theresa Ojo to the right, the house of Mr. Sunday Ekhator on the left and bounded at the rear by the wall fence of Mr. Victor Igbinovia more particularly shown in Litigation Survey Plan NO. ISO/ED/D54/2003 is hereby granted.
b) The Sum of N300,000.00 being special and General Damages for the Defendants trespass on the land and constant harassment of the Plaintiff using thugs and hoodlums is granted.
c) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant whether by himself, his agents, servants, cohorts and representatives from further claiming ownership of the said land and/or trespassing on same or doing anything whatsoever and howsoever on the land inconsistent with the Plaintiffs right of ownership of same is hereby granted.

Cost of N250,000.00 in favour of the appellant but against the respondent is hereby granted.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I read in

advance the lead judgment of my learned brother, TUNDE OYEBAMIJI AWOTOYE, JCA, just delivered.

My learned brother has resolved all the issues in contention and I agree with the reasoning and conclusions advanced therein. I have nothing more to add. I also hold that the appeal has merit and it is accordingly allowed. I abide by the consequential orders made in the lead judgment including order as to costs.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment of my learned brother, Tunde Oyebamiji Awotoye, JCA; just delivered.

My learned brother has advanced elaborate reasons for allowing the appeal. Upon a proper reading of the record of appeal and the briefs of the parties, I agree with my learned brother that this appeal is meritorious. I adopt the reasoning and conclusions of my learned brother and I also allow the appeal in the manner set out in the leading judgment. I abide by the order as to costs.

Appearances:

Sylvester Ogbe
For Appellant(s)

E.O. Afolabi with him, I.I. Irele-Ifijeh and E.N. AkemeFor Respondent(s)

Appearances

Sylvester OgbeFor Appellant

AND

E.O. Afolabi with him, I.I. Irele-Ifijeh and E.N. AkemeFor Respondent