AGU & ORS v. IDU (2021)

AGU & ORS v. IDU

(2021)LCN/15168(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 12, 2021

CA/C/281/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

MR. OBLECHOR LIFU AGU 2. MR. EJE LIFU 3. MR. SUNDAY OGBECHE (As For Themselves And On Behalf Of Lifu Agu Family Of Olachor, Okpoma, Yala, Local Government Area) APPELANT(S)

And

HON. JOSEPH IDU RESPONDENT(S)

RATIO

BURDEN PLACED ON A PARTY WHOSE CLAIM OF TITLE TO LAND IS FOUNDED UPON A GRANT BY A PARTICULAR PERSON, FAMILY OR COMMUNITY, UNDER NATIVE LAW AND CUSTOM

It is trite law that where a party’s claim of title to land is founded upon a grant by a particular person, family or community, under native law and custom, that party must plead and prove the origin of the title of such person, family or community unless the title has been admitted. See INKO-TARIAH v. GOODHEAD (1997) 4 NWLR (Pt. 500) 453; EKPECHI v. OWHONDA (1998) 3 NWLR (Pt. 543) 618. Since the Respondent traced his root of title to a grant by Arekor family whose title was denied by the Appellants, the Respondent ought to have pleaded and led evidence on the following facts: (i) Who founded the land in dispute. (ii) How they founded the land; and (iii) The particulars of the intervening owners through whom the Respondent claims. See ELEGUSHI v. OSENI (2005) ALL FWLR (Pt. 282) 1837, (2005) 14 NWLR (Pt. 945) 384; KAZEEM v. MOSAKU (2007) 17 NWLR (Pt. 1064) 523; YUSUF v. ADEGOKE (2007) 11 NWLR (Pt. 1045) 332; ARCHIBONG v. EDAK (2006) 7 NWLR (Pt. 980) 485; DIKE v. OKOLOEDO (1999) 10 NWLR (Pt. 623) 359 SC; OTANMA v. YOUDUBAGHA (2006) 2 NWLR (Pt. 964) 337 SC. This position of the law was brilliantly espoused by Uwais JSC (as he then was) in the case of OSAFILE v. ODI (1994) 2 NWLR (Pt. 325) 125 @ 128 thus: The burden which was on the plaintiffs to succeed on their claim for declaration of title was to lead evidence that was sufficiently cogent and credible in proof of their root of title. The next question is whether the plaintiffs had discharged the burden on them. To do so the plaintiffs were obliged, since they based their own on customary title, to give evidence of how they derived the title – see EKPO v. ITA (1932) 11 NLR 68 and PRESTON HOLDER v. THOMAS 12 WACA 78. The difficulty which the plaintiffs ran into, as pointed out by the Court of Appeal, is that they omitted in their pleadings to aver fully the facts about their root of title. In the absence of such averment, they did not and indeed could not have validly adduced evidence to establish the root of title. In the case of KALIO v. WOLUCHEM (1985) 1 NWLR (Pt. 4) 572 @ p. 628, Karibi-Whyte, JSC made the following remarks: Thus, where title is derived by grant or inheritance, the traditional history or evidence of acts of continuous exclusive possession should be given to justify the grant. See ALADE v. AWO (1974) 5 SC. In PIARO v. TENALO & ORS. (1976) 12 SC 31 @ p. 41, this Court held that in such cases, the pleadings should aver facts relating to the founding of the land in dispute, the persons who founded the land and exercised original acts of possession and persons on whom the title in respect of the land was devolved since its first founding, as necessary for determination of the issue in what communal capacity the land was being held. PER MOJEED ADEKUNLE OWOADE, J.C.A.

DUTY OF THE COURT WHERE INADMISSIBLE EVIDENCE HAS BEEN WRONGLY ADMITTED

It is trite that evidence that was wrongly admitted is not legal evidence and the Court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been tendered and admitted. The Court cannot rely on such evidence in reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse. See OLAYINKA v. STATE (2007) 9 NWLR (Pt. 1040) 561 SC. Indeed, where a piece of evidence as Exhibit 4 in the instant case which is inadmissible at all in law is wrongly admitted in evidence, even without objection or admitted by consent, an appellate Court has the inherent jurisdiction to exclude or expunge it from the records notwithstanding that counsel at the trial Court did not object to the admissibility of the piece of evidence. See AGBI v. OGBEH (2006) 11 NWLR (Pt. 990) 65 SC; ONOCHIE v. ODOGWU (2006) 6 NWLR (Pt. 975) 65 SC; DAGACI OF DERE v. DAGACI OF EBWA (2006) 7 NWLR (Pt. 979) 382 SC; OGIDI v. EGBA (1999) 10 NWLR (Pt. 621) 42 SC. PER MOJEED ADEKUNLE OWOADE, J.C.A.

EFFECT OF A GROUND OF APPEAL THAT NO ISSUE FOR DETERMINATION HAS BEEN FORMULATED FROM

Where no issue for determination is formulated from a particular ground of appeal, that ground of appeal is deemed abandoned and would be struck out. See A.N.P.P v. I.N.E.C. (2004) 7 NWLR (Pt. 871) 16; BHOJSONS PLC. V. DANIEL-KALIO (2006) 5 NWLR (Pt. 973) 330 SC; BAYERO v. MAINASARA (2006) 8 NWLR (Pt. 982) 391. PER MOJEED ADEKUNLE OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of His Lordship, Honourable Justice Micheal Edem then of the Ogoja Judicial Division of the High Court of Cross River State delivered on 9th day of November, 2009, in Suit No. HJ/171/2005.

The Respondent as Plaintiff took out a Writ of Summons accompanied by Statement of Claim on 17/11/2005 against Appellants Defendants. By paragraph 21 of the Respondent’s Plaintiff’s Statement of Claim, he claimed thus:
WHEREOF the plaintiff has suffered loss and claims against the Defendants jointly and severally as follows:
(a) A DECLARATION that the plaintiff is the owner of the land with twin three bedrooms bungalows therein lying and situate at Ochochi – Okpoma more particularly lying along Okpoma/Okuku Highway opposite General Hospital, Okpoma which land and house is witnessed by Agreement dated 26th day of December, 1992.
(b) A DECLARATION that the conduct of the Defendants, their agents, privies, servants, workers and assigns entering into plaintiff’s twin three bedrooms bungalows removing

six doors already fixed with keys and making mounds on plaintiff’s fifteen trips of sand and planting cassava amounts to trespass.
(c) N5,000,000.00 (Five Million Naira) only being Special, Aggravated, Exemplary and General Damages for trespass by Defendants into plaintiff’s property lying and situate at Ochochi – Okpoma.
PARTICULARS OF DAMAGES
(I) Special Damage
(a) Destroyed 15 trips of sand at N5,000.00 each N75,000.00
(b) Loss of six doors @ N5,000.00 each N30,000.00
(c) Six destroyed keys @ N2,500.00 each N15,000.00
(d) Cost of action N150,000.00
N270,000.00
(II) Exemplary damages for trespass N1,000,000.00
(III) Aggravated damages N1,000,000.00

(IV) General damages N2,730.000.00
TOTAL N5,000,000.00
(d) Perpetual injunction restraining the Defendants by theirselves, their agents, workers, servants, privies and assigns from further entering into plaintiff’s land with twin three bedrooms bungalows thereon lying and situate at Ochochi – Okpoma more particularly lying and situate opposite General Hospital, Okpoma/Okuku Highway, Okpoma Yala Local Government Area.

Pleadings were filed and exchanged. The Appellants as Defendants counter claimed as follows:
21. The defendants repeat paragraphs 1-20 of the Statement of Defence.
22. The defendants avers that by virtue of the customary law of Yala, the arbitration proceedings, the decision of the larger Lifu Agu family of Ijegu,

Okpoma and Adiero, the defendants are the bonafide owners of the land and (the improvement on it in dispute) having maintained various acts of ownership and are still in possession till date.
23. The defendants shall rely on all relevant documents, papers, indentures etc. at the trial of this suit.
24. The defendants therefore counter claim against the plaintiff as follows:
(a) Declaration that the arrest and detention of the defendants by the Nigeria Police Force, Area Command, Ogoja and Okpoma Police Station respectively upon the complaint of the Plaintiff and based on false information of stealing among other sundry charges was unlawful, illegal, null and void.
(b) The defendants claims the sum of One Million Naira from the Plaintiff being damages resulting from the arrest and detention in Police cells of the Nigeria Police Station at Ogoja and at Okpoma (at various dates) based on the false allegation of stealing lodged by the Plaintiff against the defendants.
(c) Three Million Naira (N3,000,000.00) damages against the Plaintiff for the various act of trespass on the land in question committed by the Plaintiff against the defendant.

(d) Perpetual injunction restraining the Plaintiff, his agents, servants or privies from committing further acts of trespass on the parcel of land in dispute.

By pleadings and evidence, the Respondent’s case was/is that he purchased the disputed parcel of land from one Ikpe (Otinyi) Oboma as per Exhibits 1 and 2. That Ikpe Oboma, the Respondent’s vendor and the Appellants father, the late Lifu Agu were uterine brothers. They were from the same mother who hailed from Ochochi in Okpoma, Yala Local Government Area. The Respondent’s vendor Ikpe Oboma’s father hailed from Alifokpa-Yache in Yala Local Government Area, while the Appellants’ father, Lifu Agu came from Adiero-Okpoma in the same Local Government Area.

The Respondent claims that the land in dispute belongs to their maternal family called “Areko family of Ochochi”. That it is the maternal family land of both the vendor of the Respondent and the father of the Appellants. That the Respondent’s vendor had the same right to the use of the Areko maternal family land in Ochochi village, Olacho clan as the Appellants’ father.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Appellants as Defendants contend that the Respondent cannot be the owner of the land nor the improvements on the land as there is no nexus between the Respondent and Lifu Agu family who are the actual owners of the land.

That the land owned by Lifu Agu devolved on his children under Yala Native Law and Custom. That Lifu Agu and family has maintained various acts of possession and usership of the land even before the Respondent’s purported vendor Ikpe Oboma came to live with Lifu Agu, the Appellants’ father on seeking refuge from communal crises.

The land in dispute do not belong to Arekor family as Arekor has an extended remote relationship that is only relevant when it comes to burial and funeral rites; Ibu Ikpe Oboma lived with late Lifu Agu throughout and has never lived elsewhere except after the demise of his benefactor Lifu Agu when he decided to relocate to Yache, his father’s village. And, that Ibu Ikpe Oboma never related with his maternal relatives except Lifu Agu who decided to bring him closer and accommodated him.

The Respondent as plaintiff gave evidence and called three (3) other witnesses. The 1st

Appellant similarly gave evidence and called three (3) other witnesses in defence.

At the end of the trial, the learned trial judge found in favour of the Respondent Plaintiff and dismissed the counter claim of the Appellants Defendants.

In finding for the Respondent, the learned trial judge placed heavy reliance on Exhibit 4 Affidavit of facts filed by the Respondent Plaintiff in proof of Respondent’s title. Listen to the learned trial judge, starting from page 131 of the records. First, at pages 131-133 of the record as follows:
Issue 2 is whether the plaintiff has proved his case. Exhibits here too are at hand to chart the course of this issue.
The life wire of the claim of the plaintiff lies in his purchase of the property in dispute from Ikpe Oboma of Arekor family, Yala Local Government Area of Cross River State. This assertion alone is completely bereft of platform in land law. The root of title of the vendor, Ikpe Oboma has to be settled if the plaintiff must free himself from the illusion of buying nothing but a whirlwind. The Supreme Court is much in point in OLOHUNDE v. ADEYOJU (2000) FWLR Pt. 24 page 1355.
For his root

of title, Exhibit 4, Affidavit of Facts filed by the Plaintiff on 10/8/2004 stands out unrivalled. Paragraphs 13, 14, 15 and 19 bear testimony of categorical eloquence.
Paragraph 13:
That while at Okpoma, I requested for a piece of land for my own personal use to build a house, from my mother’s family which they accepted
Underlining mine for further confirmation.
Paragraph 14:
That upon so asking for this personal portion, I had to perform or follow certain necessary procedures according to the custom of the people which I did.
Paragraph 15
That for the fulfilment of such procedures to my mother’s family, I provided kola nuts, palm wine, one bottle of hot drinks (sic) to the head of my mother, late Ukpata Ariku and others such as Ukpata Odo, Hon. Oguisi, Akpa Otogo and others at a family meeting at Okpoma.
Paragraph 19
That it is in this piece of land which was partitioned and given to me that I erected a concrete building but which I did not complete before I became sick and almost died.
Paragraph 29
That the partitioned land for me at Ochochi in Okpoma in issue is personal and not the general property of my mother’s family again.

Secondly, from pages 133-134, still on Exhibit 4, the learned trial judge remarked as follows:
It is much of note that this document, Exhibit 4 was tendered without an objection from the defence. That aside, Exhibit 4, deserves more mention. It was never challenged, was never controverted.
The Defendants filed no counter affidavit.
In affidavit jurisprudence, it is acceptance. They cannot now call into question what they had accepted. The defendants cannot defend their not filing of a counter affidavit on not being served. This is because they were served the statement of claim with the affidavit attached thereto as one of the documents to be relied upon by the plaintiff. They filed their statement of defence in the full glare of that document, Affidavit of Facts, which became Exhibit 4. They rebuffed the glare. Now it is an irreversible fiat accompli.
The defence in an after-thought championship did, in an address, rather than evidence submit at page 2 paragraph 1.2 of their written that:
… Exhibit 4 was never done in a manner substantially regular.
Where is the

evidence of substantial irregularity when they never challenged Exhibit 4 on any substantial irregularity. Even in pleading there is no frontal traverse by the defence. The said exhibit is pleaded in paragraph 11 of the statement of claim thus:
…… An affidavit of facts deposed to by Mr. Ikpe Oboma in relation to the history of his land and house begun thereon shall be founded upon and is pleaded.
The Defendants react in paragraph 13 of their statement of defence:
In answer to paragraphs 9, 10 and 11 of the statement of claim, the defendants avers (sic) that no land was ever given to Ikpe Oboma or the plaintiff his Arekor people as they have no right to do so.
This averment is roundly trounced by the law for being edgy and evasive of a capital subject like Exhibit 4 with all the danger it portends.

Dissatisfied with this judgment, the Appellants filed a Notice of Appeal containing four (4) grounds of Appeal on 28/1/2016.

Appellants’ brief of Argument was filed on 5/5/2017 but it was deemed filed on 9/5/2017. It is settled by Fakuta N. Nachamada, Esq.

Respondent’s brief of Argument was filed on

5/2/2021. It is settled by Attah Ochinke.

Learned counsel for the Appellants nominated a sole issue for determination of the appeal. It is:
Whether or not the Respondent proved his ownership of the land in dispute as declared by the learned trial judge.

Learned counsel for the Respondent adopted the sole issue formulated by the Appellants for determination of the appeal.

On the sole issue, learned counsel for the Appellants submitted that a claimant seeking declaration of title to land has the onus to prove his entitlement to the said declaration. Such party must succeed on the strength of his case and not on the weakness of the defence.
He referred on this to various cases including the cases of OPOTO v. ANAUN (2016) NWLR (Pt. 1539) 436 @ 479; AKINDURO v. ALAYA (2007) 15 NWLR (Pt. 1057) 312 @ 330; AREMU v. ADETORO (2007) 16 NWLR (Pt. 1060) 244-245; AJIBULU v. AJAYI (2014) 2 NWLR (Pt. 1392) 483; GAMBO v. TURDAM (1993) 6 NWLR (Pt. 300) 50; FABUNMI v. AGBE (1985) 1 NWLR (Pt. 2) 299.

Learned counsel for the Appellants invited us to consider the mode of acquisition of the title pleaded by the Respondent and the propriety vel non of such acquisition.

He submitted that in a claim for declaration of title to land, the Court must be satisfied as to:
(a) The precise nature of title claimed i.e. whether by original ownership, customary grant, conveyance, long possession etc.; and
(b) Evidence establishing the nature of the title. He referred to the cases of ADESANYA v. ADERONMU (2000) 9 NWLR (Pt. 672) 370; and OPOTO v. ANAUN (supra) @ 474 para. G-H.

He submitted further that title to land may be acquired in any of the following modes:
(i) First settlement on the land and deforestation of virgin land;
(ii) Conquest during tribal wars;
(iii) Gift;
(iv) Grant – customary;
(v) Sale
(vi) Inheritance
He referred to the cases of AJIBOYE v. ISHOLA (2006) 13 NWLR (Pt. 998) p. 628 @ 651-652 paras. H-F; ADESANYA v. ADERONMU (2000) 9 NWLR (Pt. 672) 370; and OPOTO v. ANAUN (2016) 16 NWLR (Pt. 1549) @ 474 paras. D-G.
Again, said counsel, title to land may be proved by:
(i) Traditional evidence
(ii) Production of documents of title, which are duly authenticated;
(iii) By acts of selling, leasing, renting out all or part

of the land or farming on it or portion of it.
(iv) Acts of land possession and enjoyment of the land; and
(v) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute – He referred to IDUNDUN v. OKUMAGBA (1976) 9-10 SC 227; NKADO v. OBIANO (1997) 5 NWLR (Pt. 503) 31; AJIBOYE v. ISOLA (2006) 13 NWLR (Pt. 998) 628 @ 651-652 paras. H-F; and ADESANYA v. ADERONMU (2000) 9 NWLR (Pt. 672) 370.

Learned counsel for the Appellants referred us to paragraphs 4, 7, 9, 10, 12 of the Statement of Claim and paragraphs 4 and 7 of Reply to Statement of Defence. He specifically reproduced paragraphs 4 and 7 of the Statement of Claim as follows:
4. The plaintiff acquired the land with a then incomplete ten rooms house in 1992 for N26,000,000.00 only from Mr. Ikpe Oboma who started the structure thereon. The 1992 agreements shall be founded upon and is pleaded.
7. Plaintiff states that his root of title goes back to Arekor family, the enlarged family to which the Defendants family is a shoot. Lifu Agu (father of

Defendants) and Ikpe Oboma are of the same mother but born of different fathers.

Learned counsel for the Appellants submitted that by these paragraphs, the Respondent aver that he purchased the land in dispute from Ikpe Oboma, who in turn, had the land granted to him by the Arekor family. That the Respondent specifically pleaded in paragraph 7 of the statement of claim that his root of title goes back to the Arekor family.

He submitted that the Appellants pleaded on paragraphs 11 and 13 of the Statement of Defence:
11. The defendants state further that the land in dispute do (sic) not belong to Arekor family as Arekor family has an extended remote relationship that is only relevant when it comes to burial and funeral rites…
13. In answer to paragraphs 9, 10 and 11 of the Statement of Claim, the Defendants avers (sic) that no land was ever given to Ikpe Oboma or the Plaintiff by Arekor people as they have no right to do so.

By the above pleadings, the Appellants, said counsel, have denied ownership of the land by the Respondent, Ikpe Oboma and the Arekor family. The Appellants in paragraph 4 of the Statement of Defence

stated that the land belongs to their father from whom they inherited the land upon his demise. The Appellants never aver getting the land through the Arekor family.

He submitted that assuming but not conceding that the Appellants did not specifically traverse relevant paragraphs of the Respondent’s averments, given the nature of the claim, the Respondent still has the onus to prove same. This he said is because:
It is elementary principle of law that whenever a claim for trespass is accompanied with a claim for an injunction, the title of the other parties to the land in dispute is automatically put in issue and the plaintiff to succeed, must establish a better title – AJIBULU v. AJAYI (2014) NWLR (Pt. 1392) @ 505 paras. F-G; FASIKUN II V. OLURONKE II (1999) 2 NWLR (Pt. 589) 1 and OLOHUNDE v. ADEYOJU (2000) 10 NWLR (Pt. 676) P. 562 @ 580.

He submitted that the Respondent relied on sale of the land in dispute to him by Ikpe Oboma. The Respondent tendered Exhibit 1 as Deed of Conveyance for sale.

Learned counsel for the Appellants referred to the case of AKINDURO v. ALAYA (2007) 15 NWLR (Pt. 1057) 312 @ 329 on the requirements which

every document in proof of title must satisfy. That Exhibit 1 is not registered therefore fails to satisfy requirement of proof of title. That the Respondent also relied on grant of the land by Arekor family to Ikpe Oboma.

The Appellants have denied ownership of the land in dispute by the Arekor family, the root of the Respondent’s title. The Respondent said counsel has to prove the grant by the Arekor family and the title of the Arekor family.

On this, learned counsel for the Appellants referred to the cases of OLUKOYA v. ASHIRU (2006) ALL FWLR (Pt. 322) 1479 @ 1506; ADOLE v. GWAR (2008) ALL FWLR (Pt. 423) 1217 @ 1239; AJIBULU v. AJAYI (2014) 2 NWLR (Pt. 1392) 483 @ 504 to that:
Where the title of the grantor is in issue, production of documents of title without more is not sufficient proof of title to land since in such a situation, it is the duty of the Claimant to go further to not only plead and trace the root of title of the grantor or vendor but prove same on the balance of probability. Where the Claimant fails to discharge this onus, his claim must fail.

Learned counsel for the Appellants reasoned that the learned trial judge

appreciated this position of the law that plaintiff in a suit for declaration of title to land must prove its root of title when he held as follows:
The life wire of the claim of the plaintiff lies in his purchase of the property in dispute from Ikpe Oboma of Arekor family, Yala Local Government Area of Cross River State. This assertion alone is completely bereft of platform in land law. The root of title of the vendor, Ikpe Oboma has to be settled if the plaintiff must free himself from the illusion of buying nothing but a whirlwind – pages 16 and 17 paragraph 5 of the judgment on pages 131 to 132 of the records.

Learned counsel for the Appellants submitted that the Respondent traced his root of title to a grant by the Arekor family whose title was denied by the Appellants, the Respondent ought to have pleaded and led evidence on the following facts:
(i) Who founded the land in dispute.
(ii) How they founded the land, and
(iii) The particulars of the intervening owners whom the Respondent claims.
He referred to the cases of ELEGUSHI v. OSENI (2005) ALL FWLR (Pt. 282) 1837, (2005) 14 NWLR (Pt. 945) 384 @ 366; KAZEEM v. MOSAKU

(2007) 17 NWLR (Pt. 1064) 523; YUSUF v. ADEGOKE (2007) 11 NWLR (Pt. 1045) 332; OSAFILE v. ODI (1994) 2 NWLR (Pt. 325) 125 @ 138.

Learned counsel for the Appellants submitted that the Respondent has failed in this material particular. That in spite of this poor state of pleadings, the learned trial judge exercised his discretion in favour of the Respondent by granting declaration of title to the Respondent in respect of the land in dispute. He referred to the case of OSAFILE v. ODI (1994) 2 NWLR (Pt. 325) 125 @ 138 to say that the learned trial judge did not exercise his discretion judicially that he was in error and that the decision was based on wrong principles therefore perverse.

Curiously, said counsel, the learned trial judge found that the Respondent did establish his root of title on the basis of Exhibit 4. Exhibit 4, said counsel is an Affidavit of Facts sworn to at the trial Court’s registry on 10/8/2004. Exhibit 4 was allegedly deposed to by Ikpe Oboma, the man to whom the Arekor family allegedly granted the land in dispute. Exhibit 4 did not pass through the fire of cross examination for the purpose of its purification in order to be entitled to weight neither was its maker.

He submitted that the ground of heavy reliance on Exhibit 4 by the learned trial judge is that the Appellants did not file counter affidavit, therefore deemed to have admitted content of Exhibit 4. To begin with, said counsel, Exhibit 4 is not a Court process served on the Appellants to which the Appellants ought to file counter.

Exhibit 4 was used to prove entitlement to declaration of title to land which relief is not granted on the weakness of defence but on the strength of the plaintiff’s case. Indeed, that declaration of title is not granted even on the basis of admission. He referred to the cases of AREMU v. ADETORO (2007) 16 NWLR (Pt. 1060) 244-245; AJIBULU v. AJAYI (2014) 2 NWLR (Pt. 1392)483; GAMBO v. TURDAM (1993) 6 NWLR (Pt. 300) 50; FABUNMI v. AGBE (1985) 1 NWLR (Pt. 2) 299.

He submitted that the Respondent as claimant, had the duty to lead credible evidence in proof of his claim. He referred again to the case of AKINDURO v. ALAYA (2007) 15 NWLR (Pt. 1057) 312 @ 330. That Exhibit 4 is not credible evidence capable of discharging such onus. Exhibit 4 does not deserve any weight. He urged us to so find and hold.

Learned counsel for the Appellants submitted further that the Respondent tendered Exhibit 9, rent receipt to establish possession of the land in dispute after he pleaded purchase of the land from Ikpe Oboma and grant of the land to Ikpe Oboma by the Arekor family as the mode of acquisition of title. That in summary, the Respondent relied on an unregistered deed of conveyance (which failed him) and traditional evidence in proof of title. He submitted that the Respondent cannot turn round to rely on the acts of possession which is accessory. And accesorium non dueit, sad sequitur suum principal (the accessory does not lead but follow its principal).
He referred to the cases of DABO v. ABDULLAHI (2005) 7 NWLR (Pt. 923) 181; OYADARE v. KEJI (2005) 7 NWLR (Pt. 925) 1 and quoted the Court of Appeal per Lokulo-Sodipe JCA in the case of OPOTO v. ANAUN (2016) 16 NWLR (Pt. 1539) 437 @ 486 thus:
I am also of the view that it is clear from the cases hereinbefore cited that acts of possession/ownership exercised on a parcel of land subsequently and consequently to a pleaded primary root of title relied upon, cannot be used to

establish ownership to the land in question where the primary root of title relied upon is not proved.

Learned counsel for the Appellants then re-stated the Appellants case. He said the Appellants have pleaded on paragraph 4 of the Statement of Defence and led evidence via DW1 to the effect that the Appellants’ father, Lifu Agu first settled on the land in dispute. Upon the demise of the Appellants’ father, the land devolved on the children of Lifu Agu, who are the Appellants. First, settlement is one of the modes of acquisition of title to land and the Appellants by traditional evidence/history proved that their father first settled on the land and the land devolved on the Appellants and their siblings upon the demise of their father, Lifu Agu.

Also, that Exhibit 15, the customary arbitration has shown that the land belongs to the Appellants. The Appellants have called DW4, the Paramount Ruler of Yala Local Government, the sole signatory to Exhibit 15 who testified and was cross examined. DW4 confirmed that the land belongs to the Appellants’ father from whom the Appellants inherited upon the demise of their father, Lifu Agu.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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He concluded that in spite of this credible evidence in support of the counter-claim, the learned trial judge dismissed the counter-claim.

He urged us to allow the appeal, set aside the decision of the learned trial judge and make declaration in favour of the Appellants.

Learned counsel for the Respondent introduced his submissions by supporting the admissibility and utilization of Exhibit 4 by the learned trial judge. He submitted that the applicable section of the Evidence Act that supports the use of an affidavit in civil proceedings is Section 78 of the Evidence Act Cap. E. 14 in pari materia with Section 107 of the Evidence Act, 2011.

He referred to the provision of Section 83 (1) and (2) of the Evidence Act 2011 which is the same as Section 9 (1) and (2) of the Evidence Act Cap. 14 LFN 2004 and submitted that an affidavit such as Exhibit 4 qualifies as documentary evidence.

He submitted that the learned trial judge was right in admitting the document Exhibit 4 without objection and in acting on its contents. That the Appellants cannot in any event raise the issue of the admissibility of Exhibit 4 after the said exhibit has

been acted upon by the learned trial judge.

He submitted that the Respondent led evidence both documentary and oral to prove his title to the land. He submitted that the Appellants cannot rely on their weak defence as positive evidence upon which title can be declared in their favour. And, that as counter claimants, the Appellants are in the position of plaintiffs in respect of the reliefs they seek in their counter claim.

RESOLUTION OF SOLE ISSUE
First, the learned counsel for the Appellants was right when he pointed out that the Respondent as plaintiff failed to plead and prove his root of title to the land in dispute.

By paragraphs 4 and 7 of the Respondent’s Plaintiff Statement of Claim, the Respondent traced his root of title to the Arekor family as follows:
4. The plaintiff acquired the land with a then incomplete ten rooms house in 1992 for N26,000.00 only from Mr. Ikpe Oboma who started the structure thereon. The 1992 agreement shall be founded upon and pleaded.
7. Plaintiff states that his root of title goes back to Arekor family, the enlarged family to which the Defendants family is a shoot. Lifu Agu (father of

Defendants) and Ikpe Oboma are of the same mother but born of different fathers. Lifu Agu being born to Adi-ero Okpoma while Ikpe Oboma was born to a Yache father.

The Appellants as Defendants denies amongst others, paragraphs 4 and 7 of the Respondents pleadings and further pleaded in paragraphs 4, 11 and 13 as follows:
4. With reference to paragraph 4 of the Statement of Claim, the defendants avers that the plaintiff cannot be the owner of the land nor the improvements on the land in dispute as there is no nexus whatsoever between the plaintiff and Lifu Agu family who are the actual owners.
(a) The land owned by late Mr. Lifu Agu devolved on his children under Yala Native Law and Custom of which the clan head of Yala is the custodian.
(b) Mr. Lifu Agu and family has maintained various acts of possession and usership of the land even before the plaintiff’s purported vendor Ikpe Oboma came to live with Lifu Agu the Defendants’ father, seeking refuge from communal crises.
11. The defendant states further that the land in dispute do not belong to Arekor family as Arekor has an extended remote relationship that is only

relevant when it comes to burial and funeral rites; Ibu Ikpe Oboma lived with late Lifu Agu throughout and has never lived elsewhere except after the demise of Mr. Lifu Agu his benefactor when he decided to relocate to Yache, his father’s village.
13. In answer to paragraphs 9, 10 and 11 of the Statement of Claim, the defendants avers that no land was ever given to Ikpe Oboma or the plaintiff by Arekor people as they have no right to do so.

Clearly, with or without the above averments by the Appellants, the Respondent was obliged in a claim for declaration of title to prove his root of title to the land. It is trite law that where a party’s claim of title to land is founded upon a grant by a particular person, family or community, under native law and custom, that party must plead and prove the origin of the title of such person, family or community unless the title has been admitted. See INKO-TARIAH v. GOODHEAD (1997) 4 NWLR (Pt. 500) 453; EKPECHI v. OWHONDA (1998) 3 NWLR (Pt. 543) 618.
Since the Respondent traced his root of title to a grant by Arekor family whose title was denied by the Appellants, the Respondent ought to have

pleaded and led evidence on the following facts:
(i) Who founded the land in dispute.
(ii) How they founded the land; and
(iii) The particulars of the intervening owners through whom the Respondent claims.
See ELEGUSHI v. OSENI (2005) ALL FWLR (Pt. 282) 1837, (2005) 14 NWLR (Pt. 945) 384; KAZEEM v. MOSAKU (2007) 17 NWLR (Pt. 1064) 523; YUSUF v. ADEGOKE (2007) 11 NWLR (Pt. 1045) 332; ARCHIBONG v. EDAK (2006) 7 NWLR (Pt. 980) 485; DIKE v. OKOLOEDO (1999) 10 NWLR (Pt. 623) 359 SC; OTANMA v. YOUDUBAGHA (2006) 2 NWLR (Pt. 964) 337 SC.
This position of the law was brilliantly espoused by Uwais JSC (as he then was) in the case of OSAFILE v. ODI (1994) 2 NWLR (Pt. 325) 125 @ 128 thus:
The burden which was on the plaintiffs to succeed on their claim for declaration of title was to lead evidence that was sufficiently cogent and credible in proof of their root of title. The next question is whether the plaintiffs had discharged the burden on them. To do so the plaintiffs were obliged, since they based their own on customary title, to give evidence of how they derived the title – see EKPO v. ITA (1932) 11 NLR 68 and PRESTON HOLDER v. THOMAS

12 WACA 78. The difficulty which the plaintiffs ran into, as pointed out by the Court of Appeal, is that they omitted in their pleadings to aver fully the facts about their root of title. In the absence of such averment, they did not and indeed could not have validly adduced evidence to establish the root of title. In the case of KALIO v. WOLUCHEM (1985) 1 NWLR (Pt. 4) 572 @ p. 628, Karibi-Whyte, JSC made the following remarks:
Thus, where title is derived by grant or inheritance, the traditional history or evidence of acts of continuous exclusive possession should be given to justify the grant. See ALADE v. AWO (1974) 5 SC. In PIARO v. TENALO & ORS. (1976) 12 SC 31 @ p. 41, this Court held that in such cases, the pleadings should aver facts relating to the founding of the land in dispute, the persons who founded the land and exercised original acts of possession and persons on whom the title in respect of the land was devolved since its first founding, as necessary for determination of the issue in what communal capacity the land was being held.
In the present case, the plaintiffs’ pleadings fell short of stating the persons that

founded the land in dispute and exercised the original acts of possession. Nor did they aver how the founders of the land in dispute came to be on the land. Surely, with this poor state of the plaintiffs’ case, no Court could have judicially exercised its discretion to grant them the claim of declaration of title to land in dispute. Therefore, the trial Court was in error to have granted the declaration sought and the Court of Appeal was right to have reversed that decision of the learned trial judge as it was based on wrong principle and was consequently perverse.
In the instant case, it would be recalled that the Respondent did not aver that he is the original owner of the land. Neither did the Respondent say that the Arekor family which granted the land to Respondent’s predecessor-in-title, Ikpe Oboma, the original owners of the land. The Respondent merely relied on traditional evidence as it were without history. The failure of the Respondent to plead and proof his root of title is fatal to the Respondent’s case.

The second palpable error by the learned trial judge in granting the Respondent’s reliefs is His

Lordship’s reliance on Exhibit 4 to ground Respondent’s root of title. Exhibit 4 on page 14 of the record of appeal is “Affidavit of facts” sworn to by the Respondent’s vendor, Ikpe Oboma on 10/4/2004. It was tendered in evidence by PW1 and was admitted without objection. The learned trial judge purportedly relied on Exhibit 4 to grant the claims of the Respondent on the ground that it was admitted without objection. Learned counsel for the Respondent in this appeal reiterated the position of the learned trial judge that Exhibit 4 – a document was admitted without objection and that the Appellants could not now be heard to complain.
Learned counsel for the Appellants on the other hand insisted on the lack of value of Exhibit 4 since the maker of the document was not available for cross examination.
I think it was a very serious error for the learned trial judge to have admitted Exhibit 4 in evidence even when there was no objection from the opposing party not to talk of utilizing same to grant declaration of title to land to the Respondent. Exhibit 4 is at best documentary hearsay evidence which in any event is inadmissible as a matter of law.

Furthermore, Exhibit 4 does not qualify to be admitted within any of the recognized exceptions to the hearsay rule. As rightly pointed out by the learned counsel for the Appellants, the maker of Exhibit 4 was not available for cross-examination.
It is trite that evidence that was wrongly admitted is not legal evidence and the Court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been tendered and admitted. The Court cannot rely on such evidence in reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse. See OLAYINKA v. STATE (2007) 9 NWLR (Pt. 1040) 561 SC.
Indeed, where a piece of evidence as Exhibit 4 in the instant case which is inadmissible at all in law is wrongly admitted in evidence, even without objection or admitted by consent, an appellate Court has the inherent jurisdiction to exclude or expunge it from the records notwithstanding that counsel at the trial Court did not object to the admissibility of the piece of evidence. See AGBI v. OGBEH (2006) 11 NWLR (Pt. 990) 65 SC; ONOCHIE v. ODOGWU (2006) 6

NWLR (Pt. 975) 65 SC; DAGACI OF DERE v. DAGACI OF EBWA (2006) 7 NWLR (Pt. 979) 382 SC; OGIDI v. EGBA (1999) 10 NWLR (Pt. 621) 42 SC.
In the instant case, Exhibit 4 was wrongly admitted by the learned trial judge being a piece of inadmissible documentary hearsay evidence and the learned trial judge was palpably in error to have relied on the said Exhibit 4 to grant the Respondent’s claim for declaration of title to land.

The sole issue in this appeal is resolved in favour of the Appellants.

Before concluding this judgment, I recall that the learned counsel for the Appellants suggested in his brief of Argument that in allowing the appeal and setting aside the decision of the Court below, we should in addition grant the Appellants/Defendants counter-claim. In doing so, Appellants counsel perhaps forgot that he did not formulate any issue on his ground 4 of his notice of appeal which is the only ground of appeal in relation to the Appellants/Defendants counter claim.
In the circumstance, ground 4 of the Appellants Notice and Grounds of Appeal is deemed abandoned and it is accordingly struck out. Where no issue for determination is

formulated from a particular ground of appeal, that ground of appeal is deemed abandoned and would be struck out. See A.N.P.P v. I.N.E.C. (2004) 7 NWLR (Pt. 871) 16; BHOJSONS PLC. V. DANIEL-KALIO (2006) 5 NWLR (Pt. 973) 330 SC; BAYERO v. MAINASARA (2006) 8 NWLR (Pt. 982) 391.

In conclusion, having resolved the sole issue in this appeal in favour of the Appellants, the appeal is meritorious and it is allowed.

The judgment and orders of Hon. Justice Micheal Edem in the Ogoja Judicial Division of the High Court of Cross River State delivered on 9/11/2009 in Suit No. HJ/71/2005 are hereby set aside.
N30,000.00 costs of this appeal is awarded to the Appellants.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA. I agree that there is merit in the appeal. My learned brother Owoade, JCA has exhaustively dealt with the issue for determination. I adopt his reasoning and conclusions as mine in allowing the appeal.
I abide by all other orders in the judgment including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: The judgment of my learned brother Mojeed A. Owoade, JCA was made available to me in draft before now.

I agree with the reasoning and conclusion arrived at in allowing the appeal.

I too allow the appeal and abide by all the consequential orders including the Order as to costs.

Appearances:

FAKUTA N. NACHAMADA, ESQ. For Appellant(s)

ATTAH OCHINKE, ESQ. For Respondent(s)