AMOBI & ORS v. UNOKA (2020)

AMOBI & ORS v. UNOKA

(2020)LCN/14897(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, December 16, 2020

CA/AS/351/2016

RATIO

LAND LAW: PRINCIPLE OF LAND ON PROPER IDENTIFICATION OF LAND

It is a principle of law that the Claimant/Plaintiff should give a proper identification of the land in dispute and is laden with the duty of establishing the area of land in dispute.
It was held in DADA v. DOSUNMU (2006) LPELR – 909 (SC) thus;
“The primary duty on a Plaintiff who comes to Court to claim a declaration of title to land, is to show the Court clearly the area of land to which his claim relates so that the land can be identified with certainty. In other words, in an action for declaration of title to land, the onus is on the Plaintiff to prove title to a defined area to which the declaration can be attached. See Baruwa v. Ogunsola (1938) 4 WACA 59; Odesanya v. Ewedemi (1962) 2 SCNLR 23; Kwadzo v. Adjei (1944) 10 WACA 274; Oluwi v. Eniola (1967) NMLR 339; Olusanmi v. Oshasona (1992) 6 NWLR (Pt.245) 22; Arabe v. Asanlu (1980) 5-7 SC 78 at 89 and Auta v. Ibe (2003) 13 NWLR (Pt.837) 347 at 265. Where the land being claimed is contained in a survey plan, it is the duties of the plaintiff to serve the plan on the defendant to enable him know the land being claimed against him. See Elias v. Omo-Bare (1982) 5 SC 25 at 38-40. Such survey plan must show clearly the dimensions of the land, the boundaries and other features. This is because a plan prepared by a licensed surveyor has been held to be the best way of discharging the onus of establishing an entitlement to a piece of land with ascertainable boundaries, if available. See Arabe v. Asanlu (1980) 5-7 SC 78 at 89 and 92. To ascertain the exact claim of a plaintiff in a land suit, one generally must have recourse to the writ of summons and the claim as endorsed in the statement of claim. However, just as in determining whether an averment in a particular paragraph of a statement of claim is traversed, one is not limited to a particular paragraph of the statement of defence but to the entire defence as stated in Iga v. Amakiri (1976) 11 SC 1; Pan Asian African Co. Ltd. v. National Insurance Co. (Nig.) Ltd. (1982) 9 SC 1 and Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519. So by way of analogy, to ascertain the Plaintiff’s claim, it is necessary to examine not only the writ of summons but also the paragraphs of the statement of claim.” (DISSENTING)
per MOHAMMED, JSC (PP. 68 -69, PARAS. E – B).

In USANG & ORS v. OKON & ORS (2016) LPELR – 41355 (CA);
“The law is settled on the principle of land that a party who seeks title to land vide any of the five ways seeking such, must prove the identity of the land in respect of which he seek remedy. The reason for the desirability of the establishment of the identity of the land in dispute is to ascertain the property involved in a litigation so as to avoid the granting of a piece of land or part thereon to a party who is not entitled to it. The Appellants therefore failed to place and lead credible evidence to establish succinctly the identity of the land in dispute and consequently there will be no land upon which to ground a declaration of title sought in his favour. Reliance is hereby placed on the case of KARIMU v. LAGOS STATE GOVT. (2012) 5 NWLR (PT. 1294) 620 at 625; ELIAS v. OMOBARE (1982) SC 25 at 57 – 58. In ADONE v. IKEBUDU (2001) 14 NWLR (PT. 33) 385, the Supreme Court stated that “the land in dispute” in any claim for declaration of title to land is none other than that put in issue and claimed by the Plaintiff and in respect of which the parties join issues. Where a Claimant fails to plead and establish the identity of the land in dispute to which his claim of ownership or title (sic) relates, whatever evidence whether oral or documentary, he produces at the trial and however cogent credible the evidence might appear, it cannot in law ground a declaration of title in his favour. See JINADU v. ESUROMBI – ARO (2005) 14 NWLR (PT. 944) 142; ANSA v. ISHIE (2005) 15 NWLR (PT. 948) 210 and OTANMA v. YOUDUBAGHA (2006) 2 NWLR (PT. 964) 313.” (UNDERLINING MINE)
per ELECHI, JCA (PP. 16 – 17, PARAS. B – C)
Also, in DANWE & ORS v. TUKUR (2019) LPELR – 46996 (CA), per HUSSAINI, JCA, this Honourable Court also held thus;
“…In dealing with the first, i.e in relation to the identity of land in question, the plaintiff or claimant must give the description of the land, the location, size, boundary neighbour and if there are features on the land which give it a distinctive outlook, state those features on the land in such a manner that will guide the surveyor in preparing of the said land. See: Atanda v. Ajani (1989) 3 SCNJ, 8; Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt. 1442) 166 (SC).”
(PP. 18 – 19, PARAS. F – B).

See also; BERNARD JOSHUA & ANOR v. ALIYU BABA ALI (2015) LPELR – 25632 (CA); MINISTRY OF LANDS & HOUSING, BAUCHI STATE & ANOR v. ALHAJI YAKUBU SALE TIRWUN (2017) LPELR – 43314 (CA); ALHAJI MUKTAR AHMED MOHAMMED v. MOUKTAR MOHAMMED & ANOR (2011) LPELR – 3729 (CA). PER OBASEKI-ADEJUMO, J.C.A.

LAND LAW: WHEN WILL THE BURDEN TO IDENTIFY THE LAND IN DISPUTE ARISE

The burden to identify the land in dispute does not arise unless the Defendant in his statement of claim makes it one, by disputing the area, size, location or the feature as shown in the Claimant’s pleadings or survey plan. See; DADA v. DOSUNMU (SUPRA) where that;
“As I earlier stated in this judgment, 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. That is the Law. However, that burden will not arise where the identity of the land in dispute was never a question in issue. That issues will only arise where the Defendant raises it in his statement of defence and supported by evidence. See Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208; Fatuade v. Onwoamanam (1990) 2 NWLR (Pt. 132) 322; Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 and Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362 at 385.” (DISSENTING)
per MOHAMMED, JSC (PP. 68-69, PARAS. E – B).
Also, in MR. TAIWO ILARI OGUN v. MR. MOLIKI AKINYELU & ORS (2004) LPELR – 2319 (SC), the Supreme Court held on the instance when the burden to prove the identity of land will arise in a claim of declaration of title to land and its exception thus;
“The law is settled that a Plaintiff seeking a declaration of title to land has the initial and the primary burden of proving clearly and unequivocally the precise area to which the claim relates. But this burden will not exist where the identity of the land was never a question in issue. The question of the identity of the land as an issue will only arise where the Defendant raises it in his statement of defence or his testimony. See Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208; Fatuade v. Onwoamanam (1990) 2 NWLR (Pt. 132) 322.”
per MUSDAPHER, JSC (PP. 22 – 23, PARAS. E – A).
See also; AYUYA & ORS v. YONRIN & ORS (2011) LPELR – 686 (SC); SAMUEL v. WAZIRI & ORS (2016) LPELR – 40313 (CA); OTANMA v YOUDUBAGHA (2006) LPELR – 2821 (SC). PER OBASEKI-ADEJUMO, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. PRINCE EKENE AMOBI 2. ENGR. BENETH ODUCHE MBELU 3. MOHAMMED ALHASSAN APPELANT(S)

And

OGBUESHI JAMES CHIBUEZE UNOKA RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State, Isselle – Uku division per Hon. Justice C. O. Ogisi dated 14th April, 2016, wherein the lower Court dismissing the counter claim and granting the Claimant’s reliefs entered judgment in favour of the Respondent.

Brevity of the facts as gleaned from the record is that; the land in dispute belongs originally to Ezenei family of Asaba. The Claimant claims that the land was granted to his father in 1977, and thereafter in 2007 the family executed a formal agreement. He entered same and began to use it. He also appointed the 3rd Defendant caretaker to pay proceeds to him. However, in 2013 the 3rd Defendant stopped doing so claiming that the land belonged to the 1st and 2nd Defendants.

The Defendants’ claim is that the 2nd Defendant purchased land in 1977 from the Ezenei family who issued a document in evidence thereof. The 2nd Defendant could not take over the land because he met some people there. In 2005, the Ezenei family, in a bid to relocate the 2nd Defendant then allocated the land to him and also issued a document to that effect.

The lower Court granted the claim and reliefs of the Claimant.
The Appellants dissatisfied with the decision filed a Notice of Appeal dated on 2nd June, 2016 on twelve grounds of appeal, and in accordance to the Rules of the Court, parties exchanged briefs. The Appellants filed their brief on 25th August, 2016 but deemed 7th July, 2020 and a reply brief on 8th September, 2020 both briefs were settled by Alexander Ifeanyi C. Agbogu, Esq., of Onyemma Chukwura Chambers, wherein he formulated 5 issues for determination wit;
1. Whether the Claimant described the land in dispute sufficiently to be entitled to judgment? (Grounds 1, 2 & 3).
2. Whether the Appellants are entitled to judgment on their counterclaim by the combined effect of the sale of 1977 and 2005? (Grounds 5, 6, 7, 8 and 9).
3. Whether the Claimant is entitled to damages for trespass? (Grounds 11 & 12).
4. Whether the Claimant established acts of possession on the land? (Ground 4).
5. Whether the counter claim was defended? (Ground 10).

The Respondent in response filed its brief on 31st August, 2020 which was prepared by C. O. Erondu, Esq., of Erondu Chambers wherein he distilled a sole issue wit;

Whether the learned trial judge was right to have granted the claims of the Respondent and dismissed the Appellant’s (sic) counter claim (Grounds I – II).

APPELLANTS SUBMISSIONS
The Appellants on Issue 1 submit that the law relating to description of land in dispute where declaration is sought is that in a claim for declaration of title, the first and foremost duty on the Claimant is to describe the land in dispute with such reasonable degree of certainty and accuracy that its identity will no longer be in doubt. He cited in aid BARKWA v. OGUNSHOLA (1938) 4 WACA 159; UDOFIA v. AFIA (1940) 6 WACA 216; AMATA v. MODEKWE (1954) 14 WACA 580; AWOTE v. OWODUNNI (NO. 2) (1987) 2 NWLR (PT. 57) 367.

The Appellants further submits that the description of a disputed land is given both in pleadings and then in evidence but these the Respondent failed to do, instead he relied on the description of the land in Survey plan – SC/DT/W/028A – C/2007 as averred in paragraph 6 of his statement of claim.
It is the contention of the Appellants that this survey plan – SC/DT/W/028A – C/2007

was tendered as Exhibit C1 and in cross examination, the Claimant exposed the inconsistency and lack of clarity in his description of the land in dispute.

It is the further contention of the Appellants that the lower Court erred in her application of the law where she held that issues where not joined on the identity of the land in dispute. That there is no admission of description of the land in dispute to warrant the learned trial judge’s views that parties are on common ground about the land.

On Issue 2, the Appellants contend that the Ezenei family sold a piece of land in 1977 to the 2nd Appellant, this was admitted. That the next question is whether there was a land transaction in 2005 over another land.

The Appellants submit that the answer is Yes and this was confirmed by the Respondent, that the Ezenei family in 2005 gave this land in dispute to the 2nd Appellant. That the admission giving although caveated by asserting that his family gave the land to the 2nd Appellant in error, the admission is still against the interest of the Respondent, which was elicited under cross examination.

The Appellants postulates that the assertion cannot avail the Respondent as it is not supported by pleadings and the Respondent failed to file a defence to counter claim or even a Reply. That the Appellants are entitled to rely on the above assertion being evidence elicited in cross examination and it confirms the position of the Appellants that the Ezenei family gave the 2nd Appellant land sometime in 2005. AYOOLA v. YAHAYA (2005) 7 NWLR (PT. 923) 140 was relied on.

The Appellants in answering in poser whether the land of 1977 and 2005 to the 2nd Appellant are the same, answers in the negative and made reference to the pleaded fact in paragraph 3 (e) of the statement of defence and the testimony of DW 1 when cross examined on this point. That the lower Court wrongly found that subject of Exhibit D1 and D2 was the same land.

Appellants further urge the Court to consider the implication of the 2005 transaction, that the Ezenei family gave the land in 2005 to the 2nd Appellant because the land was not encumbered by any previous grant even to the Respondent’s father.
OGBU v. ANI (1994) 7 NWLR (PT.355) 18; OJELADE v. SOROYE (1998) 5 NWLR (PT. 549) 284.

were cited in submitting that where two parties lay competing claims to a piece of land, the party with a better title succeeds, and the land transaction of 2005 conferred a better title on the Appellants.

The Appellants contend that the implication of the above transaction on the land transaction of 2007 between the Respondent and members of his family is quite enormous;

Firstly, it means the Respondent did not question/challenge the family when they were making the 2005 allocation; the Respondent’s position is that he complained to the error to his family and the family duly considered the Respondent’s complaint and did nothing.

Secondly, that it implies that even the land deal of 2005 raised the serious doubt about the credibility of the land deal of 2007, and the Respondent had the burden of establishing that the land sale occurred. FRAMO NIG LTD v. DAODU (1993) 3 NWLR (PT.281) 372 was cited in submitting that the Respondent should have called evidence of vital witnesses, that is, the members of the Land Committee which gave the land in 2007.

The Appellants argue that the Respondent did not prove

that it was the land granted to his father in 1977 that was the subject of the 2007 grant to him; that he did not explain why he permitted the error of 2005 and he did not explain why after the land was given to the 2nd Appellant in 2005, the family returned to give him the same land; and more importantly, the Respondent failed to show how the error was rectified. The Appellant cited the latin maxim; Vigilantibus Et Non Dormientibus, Jura Subveniunt (Equity helps only the vigilant) and FASESIN v. OYERINDE (1997) 11 NWLR (PT. 530) 552 @ 560 in aid.

The Appellants submitting on Issue 3 & Issue 4, submit that the Respondent did not prove that the Defendant was paying money to him for rents collected from the land in dispute and the Appellants specifically denied it and joined issues Respondent. That the Respondent had a burden to prove same and had a duty to establish the act of possession on the land in dispute, which he failed to do. Sections 130, 132 & 133 of the Evidence Act, 2011;LADIPO v AJANI (1997) 8 NWLR (PT. 517) 356 were relied on.

Appellants contend that the lower Court failed to evaluate the evidence before him and misconstrued the

whole evidence, and this led to injustice. OKPIRI & ORS v. JONAH & ORS (1961) ALL NLR (PT. 1) 102 was cited in submitting that the appellate Court has the powers to vacate the order and substitute it with an appropriate order.

It is the further contention of the Appellants that if the Respondent did not establish possession/exclusive possession to the land in dispute, then the occasion of damages for trespass does not arise at all, as damages for trespass only avails a party in exclusive possession; ONABANJO v. EWETUGA (1993) 4 NWLR (PT. 288) 445; ADEBAYO v IGHODALO (1996) 5 NWLR (PT. 450) 508 were cited in aid. That the award of damages was totally uncalled for and unwarranted as the Respondent failed to establish the area of land where the said trespass occurred.

On Issue 5, the Appellants submit that the learned trial judge described the parties’ cases as interwoven, but contend that the parties set up cases that ran parallel to each other and cited the instances of Paragraphs 3 (a), (b), (c), (d) and (e), 6 (a), (b) and (c) of the statement of defence. That the paragraphs contained facts that were not just a rebuttal of the averments in the statement of claim,

but which facts raise new issues, which were not contested by way of defence and are deemed admitted and urge the Court to resolve this issue in the negative.

RESPONDENT’S SUBMISSION.
The Respondent brought an application to strike out Grounds 2 and 3 of the Appellants’ grounds of appeal.
He submits that Grounds 1 – 3 in the notice of appeal though differently couched dwell on the same issue of the identity of the land in dispute. That grounds 2 and 3 are mere duplications of Ground 1 and are therefore incompetent and liable to be struck out. Order 7 Rule 3 of the Court of Appeal, 2016 was relied on the power of the Court to strike out a defective ground of appeal.

The Respondent went on to submit on the sole issue he raised on the merit of appeal. The Respondent submits that the Appellants and the Respondent being counter Claimant and Claimant respectively at the Court below are expected to succeed on the strength of their respective case and the lower Court was right to affirm the Respondent’s case while dismissing the Appellant’s case.

He further submits that the Respondent relied on customary grant from the acknowledged vendor Umuezei quarters, that paragraph 3 of his statement of claim perfectly satisfies the ingredients of customary land transfer under Asaba native law and custom, in other words there was a presentation of customary items to the grantors and delivery of possession to the Respondent’s father in the presence of witnesses. ADEDEJI v. OLOSO & ORS (2007) 5 NWLR PT. 1026, 133, 166 PARA F was relied upon.

Counsel contends that the Respondent stated that he was physically present in the course of the customary land transaction between the father and the grantors. Therefore, the evidence of the Respondent was an eye-witness account which attracts the highest probative value not hearsay evidence, OJO v. GHARORO (1999) 8 NWLR PT. 615, 374, 387 PARA. D; Section 126 (a) of the Evidence Act were cited in aid.

Counsel further contends that the query of the Appellants’ counsel on whether the transaction of 1977 was documented goes to no issue as documentation is alien to customary land transfer transactions, FOLARIN v. DUROJAIYE (1988) 1 NMLR PT. 70, 351; CHUKWU & ORS v. AMADI & 5 ORS. (2012) 4 NWLR PT. 1289. 136, 167 PARAS A – C.

That the Respondent in further exercise of his ownership rights after the demise of his father also sought and obtained a written memorandum (Exhibit C3) confirming the devolution of the said property to him; paragraph 4 of the statement of claim, paragraph 4 of his evidence in chief, paragraphs 5 and 6 of the statement of claim and paragraphs 5 and 6 of the evidence in chief.

Respondent submits that this documentary evidence perfectly rhymes with the case of the Respondent as pleaded and further validates the point the made by the Respondent that there was a competent and valid customary transfer of title to his father in 1977 which birthed the interest of the Respondent and its ultimate confirmation by the grantors in 2007.

Section 128 (1) of Evidence Act, VINZ INT. (NIG) LTD v. MOROHUNDIYA (2009) 11 NWLR PT. 1153, 562, 572 – 580 PARAS. E – A; VINCENT EGHAREVBA v. DR. OROBOR OSAGIE (2009) 18 NWLR PT. 1173, 299, 27, PARAS. B – C were cited in submitting that for the Appellants to erroneously interpret Exhibit C3 as distinct a root of title amounts to varying, adding to or contradicting the contents of Exhibit C3 which is prohibited by Law.

While CHIEF FRANK EBBA v. CHIEF WARRI OGODO (1984) 1 SCNLR 372; STATE v. AIBANGBEE (1988) 3 NWLR PT. 84, 548, 587 PARAS. D – E; NACENN NIG. LTD v. B. A. P LTD (2011) 11 NWLR PT. 1257, 193, 213 PARAS G – H were cited in submitting that the lower Court whose role in the circumstance was to hear evidence, evaluate evidence, to believe or disbelieve witnesses made findings based on the credibility of the witnesses who testified and decided the merits of the case based on those findings.

Respondent argues that the Appellants have not shown that the perversity in finding of the learned trial judge in according utmost primacy to the Respondent’s root of title in 1977, this Honourable Court cannot interfere with such a finding unless special circumstance is adduced by the Appellants. OKAFOR v. IDIGO (1984) 6 SC 1, 35; DR. SOGA OGUNDALU v. CHIEF A. E. O MACJOB (2006) 7 NWLR PT. 978, 148, 166, PARAS. F – G were referred.

Respondent further argued that having adjudged the claim of the Respondent to declaration of title successful, the Law ascribes constructive possession to the Respondent.

OLOWU v. BUILDING STOCK LTD & ORS (2010) 2 NWLR PT. 1178, 310, 335 PARAS B – C; OGUNBIYI v. ADEWUNMI (1988) 5 NWLR PT. 93, 215, 221 PARA. D; EGBUTA & ORS v. ONUNA (2007) 10 NWLR PT. 1042, 298, 318 PARA. A and that this deemed or constructive possession can sustain a cause of action in trespass.

Respondent postulates that the Respondent pleaded and led evidence on his physical possession of the land in dispute, and he even undertook a perimeter survey of the land which was tendered in evidence as Exhibit C1. He furthermore, commissioned the 3rd Appellant to act as his caretaker by collecting rentals from the Respondent’s tenants and remitting same to him.

It is the submission of the Respondent that specific allegations were made against the 3rd Appellant and it behooved on the 3rd Respondent to rebut the specific issues raised against him. Section 167 (d) of the Evidence Act, 2011; HANI AKAR ENT. LTD v. INDO. NIG. MERCHANT BANK LTD (2011) 1 NWLR PT. 1228, 302, 329 PARA A.

Respondent also submitted that the trial judge was right in affirming the Respondent’s case on trespass and the relief for

injunction automatically follows the affirmation of the Respondent’s case of trespass. MICHEAL OSU & ORS v. MICHEAL NWADIALO & ORS (2009) 12 NWLR PT. 1199, 286, 306 PARAS D – E, 311 C – D, G – H; EYIBABGE v. EYIGBABGE (1996) 1 NWLR PT. 425, 408; RUNSEWE & ORS v. ODUTOLA (1996) 4 NWLR PT. 441, 143; OMOTAYO v. C. S. A (2010) 16 NWLR PT. 1218, 1, PP. 25 – 26, PARAS. E – A were cited in aid.

R. O. IYERE v. BENDEL FEED AND FLOUR MILL LTD (2008) 18 NWLR PT. 1119, 300, 341 – 342 PARAS; AUGUSTINE OBINECHE & ORS v. HUMPHREY AKUSOBI & ORS (2010) 12 NWLR PT. 1208, 383, 416 PARAS. E – G were cited in submitting that the non refutal by the 3rd Appellant implies that the Respondent’s piece of evidence is deemed proved.

On the contention of the Appellants that the land in dispute was not properly identified, the Respondent stated that to raise the identity of the land in dispute as an issue of fact, the Appellants must specifically plead it. That the parties voluntarily submitted to a pre trial session in order to settle issues for determination, and arrived at three issues for determination.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Respondent submits that these three issues are binding on both the Court and the parties and the importation of the extraneous issue of the identity of the land in dispute into the proceedings of the Court below by the Appellants should be discountenanced. OKECHUKWU ADIMORA v. NANYELUGO AJUFO & ORS (1988) 3 NWLR PT. 80, 1, 12 PARAS D – G; LEO O. C. OBIJURU v. I. M. OZIMS (1985) 2 NWLR PT. 6, 167, 175 PARAS. D – E; Order 25 Rule 3 (a) High Court Rules of Delta State, 2009 were relied upon.

Respondent further submits that the reason why it was not so identified is because it did not arise from the pleadings of the Appellant. AFOLARIN ADENLE v. FOLARIN OLUDE (2012) 18 NWLR PT. 799, 413, 433 – 434, PARAS E – A; INSPECTOR KAYODE v. ALHAJI J. A. ODUTOLA (2001) 11 NWLR PT. 725, 659, 674, PARAS C – F. That since both parties know the land in dispute, a survey plan was unnecessary in the circumstance; ARIYO & ORS v. ADEWUSI & ORS (2010) 15 NWLR PT. 1215, 78 AT 96 – 97, PARAS G – B.
On the lower Court’s decision to dismiss the Appellants’ counter claim, the Respondent submits that the Appellants are

bound by pleaded facts and cannot stray outside it. GEORGE v. DOMINION FLOUR MILLS LTD (1963) 1 SCNLR 117; PASCUTTO v. ADECENTRO NIG. LTD (1997) 11 NWLR PT. 529, 467, 482 PARAS. C – E; EKEMBAI OPUZIBAU & ORS v. ISAIAH B. KWOKWO & ORS (2002) 1 NWLR PT. 747; 116, 130 PARA H.

It is the Respondent’s contention that the introduction of Exhibits D1 and D2 by the Appellants destroyed their case. That Exhibit D1 contrary to the case of sale or purchase in the pleadings is a lease hold agreement subject to covenants/terms of conditions and is not an absolute transfer of property and Exhibit D2 in paragraphs 3, 4, 5 and 6 of its recital goes against the pleadings of the Appellants in paragraphs 3 (c), (d), (e) of the statement of defence and counter claim and paragraphs. 2 (c), (d) & (e) of his deposition.

Counsel submits that with the massive contradictions in the pleadings and evidence of the Appellants, their case was doomed to fail. MOSES OKHUAROBO & ORS v. CHIEF EGHAREVBA AIGBE (2002) 9 NWLR PT. 771, 29, 47 PARAS. B – E; HON. COMM. FOR LAND & HOUSING, KWARA STATE & ANOR v. MALLAM JIMOH ATANDA (2007) 2 NWLR PT. 1018, 360, 374 PARAS. C – F;

SALAWU AJIDE v. KADIRI KELANI (1985) 3 NWLR PT. 12, 248, 269 PARA C; GREEN FINGERS AGRO – INDUSTRIAL ENTERPRISES LTD v. MUSA YUSUFU (2003) 12 NWLR PT. 835, 488, 507 PARAS A – B; EBENEZER NWOKORO & ORS v. TITUS ONUMA & ANOR (1999) 12 NWLR PT. 631, 42, 354 PARAS. B – C.

It was further submitted that the Appellants should have themselves to blame for completely wrecking their case by the massive contradictions between the pleadings and the evidence tendered on his root of title being a counter claimant, it is liable to be dismissed. AKANMU & ANOR v. ADIGUN (1993) 7 NWLR PT. 304, 218 AT 235 G – H; ESIKA v. MEDOLU (1997) 2 NWLR PT. 485, 54 AT 69 PARAS F – H.

It is the submission of the Respondent that with the failure of the counter claim and success of the Respondent’s claim, whatever possession ascribed to the 2nd Appellant becomes acts of trespass liable to be damnified. REGISTERED TRUSTEES OF ABA v. NKUME (2002) 1 SC 19 AT 28.

On the Appellants’ submission that the failure of the Respondent to file a reply and defence to the counter claim renders same uncontroverted and proved.

POTTER DABUP v. HARUNA BAKO KOLO (1993) 9 NWLR PT 317, 254; OGBONNA v. A.G IMO STATE (1992) 1 NWLR PT 220, 647; ALHAJI MOTUNWASE v. SORUNGBE (1988) 5 NWLR PT. 92, 90; MAOBISON INTER – LINK LTD v. UTC (NIG) PLC (2013) 9 NWLR PT. 1359, 192 AT 209; IMPACT SOLUTION LTD & ANOR v. INTERNATIONAL BREWERIES PLC (2018) 16 NWLR PT. 1645, 377, 403 PARAS. D -E; UNIPETROL NIG PLC v. MUSA DOGO BUKAR (1997) 2 NWLR PT. 488, 472, 486 PARAS. C – D were cited in contending that in law there cannot be a successful concurrent claim to title by both parties. It is either the claim succeeds and counter claim fails or vice versa.

APPELLANTS’ REPLY
Appellants submit on the issue of the duplicity of Grounds 2 & 3 raised by the Respondent that the point is more academic as no purpose will be achieved by such argument. That Issue 1 is drawn from Grounds 1, 2 & 3 and the three grounds are all distinct in their expression of specific grievances.

Appellants further submit that a ground of appeal cannot be defective and urged the Court to discountenance the application.

The Appellants in response to some points made by the Respondent, contend that the Respondent traces his title to Ezenei family by an oral grant in 1977 until 2007 when it was evidenced in writing, while the Appellant traces his title from 1977 vide a written document to 2005 when upon a relocation he was put in by Ezeni Family on the land in dispute.

Appellants went on to submit that it is an admitted fact which needs no further proof that the Ezenei family put the 2nd Appellant on the land in 2005, that PW1 under cross examination admitted this fact, and his answer supports the Appellants’ case; DAGGASH v. BULAMA (2004) 14 NWLR (PT. 892) 144; GAJI v. PAYE (2003) 8 NWLR (PT. 823) 583.

Secondly, Counsel submits that the family did nothing about the Respondent’s complaint of erroneous allocation to the 2nd Appellant, then it is highly improbable, and quite unbelievable that in 2007, Ezenei family will now ratify a 1977 grant, and if they did, the grant of 2005 nullifies the grant of 2007.

Thirdly, Appellants contend that if the Respondent called the attention of Ezenei family to that error in 2005, then they would not take it lightly being that the Respondent is a family member.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Fourthly, it is the submission of the Appellants that the Respondent did not take action against his family, to at least protect an already existing interest awarded his father in 1977 by that family.

On the Respondent attack of Exhibit D1 & D2, the Appellants adopt his arguments proffered at the lower Court, where Counsel submitted that the nexus/similarities between both documents be noted. That any dispute about the authenticity of Exhibit D2 is fully cleared by the status of the lessors who represented Ezenei family, while Exhibit D1 was signed by one of the signatories for the Ezenei family, who was the acting Diokpa of Umuezei.
Respondents went on to postulate that the grantor in 2005 went to the land they were giving to the 2nd defendant before they signed Exhibit D2.

RESOLUTION
I have considered the issues before this Court as distilled by the parties, and the Appellants’ issues (being the aggrieved party) would be adopted for the determination of this appeal. In resolving the appeal, issues 1 and 2 would be taken together while issue 3, 4 and 5 would be resolved together.

ISSUES 1 & 2.
It is a principle of law that the Claimant/Plaintiff should give a proper identification of the land in dispute and is laden with the duty of establishing the area of land in dispute.
It was held in DADA v. DOSUNMU (2006) LPELR – 909 (SC) thus;
“The primary duty on a Plaintiff who comes to Court to claim a declaration of title to land, is to show the Court clearly the area of land to which his claim relates so that the land can be identified with certainty. In other words, in an action for declaration of title to land, the onus is on the Plaintiff to prove title to a defined area to which the declaration can be attached. See Baruwa v. Ogunsola (1938) 4 WACA 59; Odesanya v. Ewedemi (1962) 2 SCNLR 23; Kwadzo v. Adjei (1944) 10 WACA 274; Oluwi v. Eniola (1967) NMLR 339; Olusanmi v. Oshasona (1992) 6 NWLR (Pt.245) 22; Arabe v. Asanlu (1980) 5-7 SC 78 at 89 and Auta v. Ibe (2003) 13 NWLR (Pt.837) 347 at 265. Where the land being claimed is contained in a survey plan, it is the duties of the plaintiff to serve the plan on the defendant to enable him know the land being claimed against him. See Elias v. Omo-Bare (1982) 5 SC 25 at 38-40. Such survey plan must show

clearly the dimensions of the land, the boundaries and other features. This is because a plan prepared by a licensed surveyor has been held to be the best way of discharging the onus of establishing an entitlement to a piece of land with ascertainable boundaries, if available. See Arabe v. Asanlu (1980) 5-7 SC 78 at 89 and 92. To ascertain the exact claim of a plaintiff in a land suit, one generally must have recourse to the writ of summons and the claim as endorsed in the statement of claim. However, just as in determining whether an averment in a particular paragraph of a statement of claim is traversed, one is not limited to a particular paragraph of the statement of defence but to the entire defence as stated in Iga v. Amakiri (1976) 11 SC 1; Pan Asian African Co. Ltd. v. National Insurance Co. (Nig.) Ltd. (1982) 9 SC 1 and Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519. So by way of analogy, to ascertain the Plaintiff’s claim, it is necessary to examine not only the writ of summons but also the paragraphs of the statement of claim.” (DISSENTING)
per MOHAMMED, JSC (PP. 68 -69, PARAS. E – B).

the land in dispute to which his claim of ownership or title (sic) relates, whatever evidence whether oral or documentary, he produces at the trial and however cogent credible the evidence might appear, it cannot in law ground a declaration of title in his favour. See JINADU v. ESUROMBI – ARO (2005) 14 NWLR (PT. 944) 142; ANSA v. ISHIE (2005) 15 NWLR (PT. 948) 210 and OTANMA v. YOUDUBAGHA (2006) 2 NWLR (PT. 964) 313.” (UNDERLINING MINE)
per ELECHI, JCA (PP. 16 – 17, PARAS. B – C)
Also, in DANWE & ORS v. TUKUR (2019) LPELR – 46996 (CA), per HUSSAINI, JCA, this Honourable Court also held thus;
“…In dealing with the first, i.e in relation to the identity of land in question, the plaintiff or claimant must give the description of the land, the location, size, boundary neighbour and if there are features on the land which give it a distinctive outlook, state those features on the land in such a manner that will guide the surveyor in preparing of the said land. See: Atanda v. Ajani (1989) 3 SCNJ, 8; Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt. 1442) 166 (SC).”
(PP. 18 – 19, PARAS. F – B).

In the Respondent/Claimant’s statement of claim, on the identity of the land, the Respondent/ Claimant made the following averments specifically in paragraphs 2, 3, 5 & 8;
“2. The Umuezei Quarters of Asaba from time immemorial were owners under Asaba native law and custom of the vast expanse of land comprising Umuezei Quarters, Asaba. The dispute in this case has nothing to do with the undisputed original ownership of all Umuezei land by the Umuezei Quarters but with whom Umuezei Quarters gave a portion of the said land which is now in dispute in this Suit.
3. Sometime ago, about 1977, Umuezei Quarters acting through its accredited representatives, the Ezenei Executive committee, granted the land in dispute to the Claimant’s father, Broderick Okei Unoka. As a member of the Quarters, all that Broderick did was present kola nuts and drinks and

kola nuts and put him into possession of the land in the presence of witnesses such as Obi Okido, Obi J. N. Eluaka, Ogbueshi Fred Nwigili Ogbogu, Damasus Ojukwu and many others.
5. Sometime in 2007, the Claimant decided to obtain a written memorandum in proof of the ownership of the, land from Umuezi Quarters. He took drinks and kola nuts to the Palace of His Royal Majesty, the Asagba of Asaba wherein His Royal Majesty and the accredited representatives of Umuezei Quarters accepted the drinks and kola nuts. They made enquiries and confirmed that the land had in 1977 been granted to Broderick, the Claimant’s father.
6. The Claimant prepared a Survey Plan, describing the land. This Plan, No. SC/DT/W/028A – C/2007 was used to describe the land in the Memorandum of Devolution of Customary Grant which the Umuezei Quarters signed for the Claimant.
8. Meanwhile, the Claimant started to use the land as a market. In fact it is part of the area where the new Hausa Market is located in Asaba. The Claimant appointed the 3rd Defendant as the caretaker of the (sic) land. The duties of the 3rd Defendant included collecting tolls from traders who

erected stalls on the land. Out of the monies collected the 3rd Defendant was paying N20,000.00 per month to Claimant.”
See pages 3 – 4 of the record.

It is important to recall that the suit at the lower Court constituted of the Appellants’ counter claim. The Appellants in their defence and counter claim traversed in paragraphs 3 (a – e) & 6 (a – c) on the identity of the land in dispute thus;
“3. Paragraphs 3 and 4 of the statement of claim are denied. The Claimant is hereby put to strictest proof of the alleged incidents in 1977. However, the defendants aver as follows-
(a) That even if there was such a transaction between the Ezenei Executive Committee and the Claimant’s father, then same related to the Claimant’s land adjoining the land now in dispute, and not the land in dispute proper.
(b) The 2nd Defendant in 1977 already purchased land from the Ezenei Executive Committee. The documents relating to the transaction between the 2nd Defendant and the said committee is hereby pleaded as receipt.
(c) The 2nd Defendant erected a wall

fence around the land. When he eventually got ready to commence development, he met other unknown persons already on the land.
(d) Upon confirmation by Ezenei Executives that some members of their family had sold the 2nd Defendant’s land, they pleaded with him, and offered to relocate him to another land.
(e) In the year 2005, the Ezenei family allocated the land now in dispute to the 2nd Defendant who, in the interest of peace, was persuaded to atone for that land by paying valuable consideration to the Ezenei family. At the trial, the Defendants shall rely on a Memorandum of Reinstatement of Leasehold between the Ezenei family and the 2nd Defendant. It is pleaded as a receipt. The 2nd Defendant immediately went into possession.
6. Paragraph 8 of the statement of claim is admitted only to the extent that the Claimant did all that he alleged with respect to his own land adjoining the 2nd Defendant’s. The Defendants also state as follows-
(a) That the 2nd Defendant had in these years experienced a lot of health challenges. He delegated all duties of taking care of the land to his nephew, the 1st Defendant.

(b) The Claimant indeed suggested to the 1st Defendant as a neighbor that it was best for him to allow the 3rd Defendant manage the land for him as a caretaker. The 1st Defendant agreed.
(c) Thus, the 3rd Defendant was introduced to the 1st Defendant and the former began to manage the land in almost similar manner as pleaded by the Claimant. However, all accounts of proceeds from the land in dispute was rendered by the 3rd Defendant directly to the 1st Defendant.”
See pages 10 – 11 of the record.

The parties did not make the detailed description of the land in dispute, boundary properties or landmarks an issue in their pleadings.

arise where the identity of the land in dispute was never a question in issue. That issues will only arise where the Defendant raises it in his statement of defence and supported by evidence. See Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208; Fatuade v. Onwoamanam (1990) 2 NWLR (Pt. 132) 322; Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 and Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362 at 385.” (DISSENTING)
per MOHAMMED, JSC (PP. 68-69, PARAS. E – B).
Also, in MR. TAIWO ILARI OGUN v. MR. MOLIKI AKINYELU & ORS (2004) LPELR – 2319 (SC), the Supreme Court held on the instance when the burden to prove the identity of land will arise in a claim of declaration of title to land and its exception thus;
“The law is settled that a Plaintiff seeking a declaration of title to land has the initial and the primary burden of proving clearly and unequivocally the precise area to which the claim relates. But this burden will not exist where the identity of the land was never a question in issue. The question of the identity of the land as an issue will only arise where the Defendant raises it in his statement of defence or his

testimony. See Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208; Fatuade v. Onwoamanam (1990) 2 NWLR (Pt. 132) 322.”
per MUSDAPHER, JSC (PP. 22 – 23, PARAS. E – A).
See also; AYUYA & ORS v. YONRIN & ORS (2011) LPELR – 686 (SC); SAMUEL v. WAZIRI & ORS (2016) LPELR – 40313 (CA); OTANMA v YOUDUBAGHA (2006) LPELR – 2821 (SC).

Furthermore, during the proceedings at the lower Court, the 1st Defendant/Appellant stated thus;
“…I know about the plan attached to Exhibit D1. I was not present when the plan attached to Exhibit D1 was made. I cannot say precisely the size of the land correctly by the said plan attached to Exhibit D1. Exhibit D2 was made with a Survey Plan. The Survey Plan anticipated in Exhibit D2 was made by the Umuezei family and attached to the deed, (Exhibit D2) before he signed same. The plan was made in 2005. Exhibit D2 was signed in 2005. I signed Exhibit D2 as a witness. It was the family that prepared the survey plan and I was not supposed to question when it was made. I cannot know the size of the land the Umuezei family surveyed for me. The size is the survey plan which

came with the Deed Exhibit D2. The land the Umuezei family surveyed for my uncle which is with Exhibit D2 is not the same land referred to in the 1977 transaction. The land I am claiming in this suit is the land referred to in the 2005 transaction.” (Underlining Mine)
See page 46 of the record.

The Respondent/Claimant during cross examination at the lower Court stated thus;
“In 1977 when the land was given to my father I was 17 years old. I was physically present when the land was given to my father. In 1977 my family (Ezenei family) had a Land Committee. I cannot remember who was the Chairman of the Land Committee in 1977. All the members of the Land Committee in 1977 are all dead.
…In 1977 when my father was given the land, he was taken to the land and shown the land. He placed sticks to demarcate the land. My father was not issued with any document of grant as at 1977 the family were not issuing documents of grant. As at 1977 the grant of land was documented in their minutes of meeting. The present secretary of the Land Committee is Ogbueshi Agagu Agbo. Agagu Agbo does not have the minutes of the meeting of the Committee.

He has just been appointed a year ago. The Chairman is Ogbueshi Adizua Eluaka. The said Eluaka does not have previous records of the Land Committee. It is not the present Committee who prepared Exhibit C3. Two of the three signatories to Exhibit C3 are still alive.
…The Land Committee in 1977 were preparing documents of grant of land to strangers and not to family members. The Committee did not issue allocation paper to family members in 1977. They issued only to strangers. It is not correct to say that the first time a document was issued to me in respect of the land in dispute is in 2007. It is true that the first document issued to me in respect of the land is in 2007. The same persons who signed Exhibit C3 also signed land documents for members of my family and strangers alike. Before the Committee members signed any allocation paper they will go to the land to ensure that it is the land they are signing documents in respect of. The same rule applies to land granted to strangers. I supplied the information to the publishers of Exhibit C3 (sic).
…The said money given to the 1st Defendant by the 3rd Defendant was part of the money collected as rent from the land in dispute.”
See pages 51 – 53 of the Record.

The question that begs answering in this instance is whether the Appellants joined issues with the Respondent on the identity of the land.

In ABDULLAHI v. HEDIMA (2010) LPELR – 3556 (CA), this Honourable Court held on when the identity of a land will be in issue thus;
“It must be noted that it is only when the Defendant in his statement of defence has made the issue of identity of the land an issue that it will be tried and considered by the Court. He can do this by disputing either the area, or the size of the location or the features shown on the Plaintiffs’ plan where one is filed. See Ezeudu v. Obiagwu (1986) 2 NWLR (pt. 21) 2008.”
per OKORO, JCA (P. 9, PARAS. B – C).
See also; ONUBE v. ASUAKOR & ORS (2019) LPELR – 47231 (CA); DAVIES & ANOR v. GOVERNOR OF EKITI STATE & ORS (2018) LPELR – 46372 (CA); KPEKU & ORS v. SIBEKENEKUMU & ORS (2013) LPELR – 20703 (CA); WHITE DIAMONDS PROPERTY DEVELOPMENT COMPANY LIMITED v. TRADE WHEELS LIMITED (2018) LPELR – 44572 (CA).

The Appellants in the above reproduced paragraphs from their statement of defence/counter claim did not specifically plead a contrary/different area, location or size to the land in dispute. In paragraph 3, they simply stated that if the customary pre requisites were performed, it must be in relation to the adjoining land and didn’t go further to state why or different/distinctive mark between the land in dispute and the alleged adjoining land that the Respondent supposedly has claim to.
I don’t believe the averments in paragraph 3, 4, 6, 11 transcends into the Appellants raising an issue on the identity of the land in dispute.

The lower Court on this issue held thus;
“The question that comes to mind at this point is whether the Defendant has in the instant case joined issues with the Claimant on the identity of the land in dispute? The paragraph of the statement of defence and counter claim relied once by the learned counsel to the Defendants in his argument on this issue is paragraph 3 (a) which states thus:
“That even if there was such a transaction between the Ezenei Executive Committee and the

Claimant’s father then same related to the Claimant’s land adjoining the land now in dispute and not the land in dispute proper.”
I have read and re – read the above paragraph relied on by the Defendants and I find nothing therein specifically disputing the land in dispute as to the dimension, or location. My understanding of the paragraph is that the portion of land in dispute is known to both parties as the Defendants have pleaded that the Claimant’s land may be the land adjoining the land in dispute and not the land in dispute proper. The Defendants who are counter claiming also have a duty to establish the identity of the land in dispute. The issue raised as regards property survey plan, Exhibit C1 does not relate to identity of the land in dispute but just a survey to show the land purchased by the Claimant. It is my firm view and I hold that the parties are on common ground on the land in dispute, which requires no further proof.”
See page 76 of the Record.

Flowing from the above, I believe the parties were ad idem on the land in dispute, and there are no contrary area, location or dimension to put the identity of the land in issue.

Both parties know the disputed land which from the evidence has now transcended into a commercial land (Hausa market) upon which rents are collected by the 3rd Defendant/Appellant, see; paragraphs 9 & 10 of the statement of claim at page 4 and paragraph 7a, 7b & 7c of the statement of Defence & counter claim, see also page 52 of the record, the evidence of the Claimant/Respondent.

Issue 2 stands on the foundation of who proved better title to the land in dispute.
It is the case of the Appellants that on 4th February, 1977 (Exhibit D1), a conveyance was made between Umuezei family and Bennett Oduche Mbelu (2nd Appellant) where a parcel of land at the cable point Asaba was granted subject to annual rent and other stipulations provided in the schedule;
“(1) The Grantee undertakes to use the said land for the purpose of erecting a dwelling house and nothing else.
(2) The Grantee promises not to part with the possession of the land or any part thereof without the written consent of the Grantors.
(3) The Grantee promises to pay to the Grantors an agreed annual rent of TEN NAIRA on or

before the last day of each year, such rent to be agreed from time to time.
(4) The Grantee undertakes to discharge any rates or taxes chargeable on the demised land or any building erected thereon.”

Attached to Exhibit D1 is a Survey Plan (No: NWC/1026/83) made on 6th August, 1983.

The Appellants also tendered Exhibit D2 (Memorandum of Re -instatement of Leasehold). It is pertinent to state that Exhibit D2 was meant to ratify the agreement of 1977 between the Umuezei family and Bennett Oduche Mbelu (2nd Appellant) because the family took the land given in 1977 agreement and decided to allocate another land in its place, hence the 2005 agreement between the parties, as gleaned from Exhibit D2’s recital;
“ 3. The Lessors had in 1977 agreed with the Lessee for the lease and transfer to the Lessee and had in fact transferred all that piece or parcel of land lying, being and situate at Akwuebolo Layout, Cable point, Umuezei Quarters, Asaba, to hold and enjoy the said land under Asaba Customary Law for a term of 99 years in consideration of the sum of N6,000. 00 paid then to the family.
4.The Lessee who was taken to the said piece or parcel of land, shown the boundaries which were then marked with boundary sticks and put in possession by the Lessors.

5.The Lessee however breached the covenants of the lease by non-payment of the annual rent reserved as well as failure to develop within the stipulated period which caused the term thereby created to cease and determine.
6.The Lessors have now agreed with the Lessee to re- instate and re-affirm the said Lease and the residue of the term of 99 years with effect from its original date of commencement in consideration of an ATONEMENT FEE paid by the Lessee to the Lessors.”

From the above reproduced excerpt of Exhibit D2 and the wordings of the covenants in the agreement, the parties entered a leasehold agreement, also bearing in mind that this agreement was a “continuation” of the 1977 agreement. This implies that the 1977 and 2005 agreements were Leasehold agreements.

The Respondent on the other hand tendered Exhibit C1 (Survey Plan No. SC DT W 028 A – C/2007), Exhibit C2 (Pointer Newspaper publication) and Exhibit C3 (Memorandum of Devolution of Customary Grant of Land).

The Respondent’s claim is hinged on the grant given to his late father Broderick Okei Unoka in 1977, who performed the customary rites of presenting kola nuts and drinks to the Ezenei Executive Committee, and the Committee accepted and put him in possession in presence of witnesses. In 2007, the Respondent decided to obtain a written memorandum in respect of the land. Exhibit C3 in it recital states that;
“3. The piece and parcel of land, the subject matter of this memorandum was initially allotted to one MR. BRODERICK OKEI UNOKA, father of the present Grantee herein, a bona fide member of Ezenei family entitled to the grant of family land, by a property constituted Ezenei Executive Committee charged with the management and control of Ezenei family lands sometime in 1977.
4.The said piece and parcel of land on the demise of the said MR. BRODERICK OKEI UNOKA devolved customarily to his son, one OGBUESHI JAMES CHIBUEZE UNOKA the present grantee/allottee herein.
5.The Grantors had agreed with Grantee herein for the regularization, proper documentation and formal recognition of transfer to the Grantee and had in fact transferred to him all that piece or parcel of

land lying, being and situate at Akwuebolo Layout Umuezei Quarters, Off Niger Bridge Express Way, Asaba, to hold and enjoy the said land under Asaba Native Customary Law and Custom free from encumbrances and incidents of land tenure, customary or otherwise, in consideration of the formal performance of all customary rites and ceremonies i.e presentation of kola nuts and drinks by the Grantee to the family.
6. The Grantee was thereafter taken to the said piece or parcel of land, shown the boundaries, which were then marked with boundary sticks and put in possession by the family.”

And from the wordings and intent of the memorandum, the Respondent acquired all interest in the piece or parcel of land lying and situate at Akwuebolo Layout Umuezei Quarters, Off Niger Bridge Express Way, Asaba and as identified in the Exhibit C1. This confirms a long continuous unbroken title which was merely reconfirmed by the document.

In answering the question of who has proved a better title, one must consider that both parties have traced their title to the Umuezei family, and in this instance, it is the party who establishes a better title thereto that is entitled to succeed in a claim for declaration of title.

In ALADE MUTIU OGUNDARE v. MR TIMOTHY DUROJAIYE (2016) LPELR – 41923 (CA), this Honourable Court held on the above issue thus;
“In Francis Adesina Ayanwale v. Olumuyiwa Olumide Odusami (2001)10 12 SC (Pt. III) 59 it was held “that where the Plaintiff and the Defendant trace their title to an established owner, the first to purchase the land is regarded as the owner of the land”. He who is first in time has a better claim in law and equity. Expounding the judgment of the Supreme Court further, the Learned Editor of Digest of Judgment of the Supreme Court of Nigeria in Vol. 3 & 4 at Paragraph 218 reproduced the Supreme Court thus: Where two contending parties in a land in dispute derive title from a common vendor, the first in time takes priority. This is summed up in the latin maxim “quo prior est tempore, potiorest jure”, meaning the first in time has the strongest title. The resultant effect is that since the first to acquire title has a stronger title, the later in time must give way to the earlier one. He cannot in the circumstance maintain an action against the one who first

obtained title or interest in the property. The simple reason being that the grantor or original owner who divested himself of his title over the land in dispute to the first grantee would have nothing left to convey to the subsequent grantee. Where a party has satisfied the Court as to his title to the land in dispute, the Court need not inquire into the title of his predecessor-in-title. The party does not need to prove the title of his vendor except where it has become an issue. Francis Adesina Ayanwale v. Olumuyiwa Olumide Odusami (2011) 12 SC (Pt.III) 59. In this case the title of the Ogundimu family was admitted and not in issue. See also: Mogaji Lasisi Atanda & Ors. v. Salami Ajani & Ors (1989) 6 SC (Pt.II) 87; Moriyamo Adesanya v. A. O. Otuewu (1993) 1 SCNJ 77. Another feature of this case, is that the trial judge perhaps for his own purposes rejected the root of title of both parties as not proved and rested on the tenuous survey plan Exhibit ‘B’ as constituting possession for the Plaintiff /Respondent. The Law on that aspect of root of title is well elucidated by the Supreme Court in Ayoade Adewuyi v. Andrew A. Odukwe (2005) 8 SCM 13

where it observed that the “mere production of a deed of grant as being equivalent to proof of title when the root of title of the grantor was neither admitted nor established is not sufficient.” This means that where the root of title is “admitted nor established” there is no need for further proof. In this case the parties rely on the Ogundimu family. Indeed in his pleadings at page 9 of the record Respondent described the title of the Ogundimu family as genuine, with such admission by both parties; there was thus no need for the trial judge to require the contesting parties to establish the title of the Ogundimu family as he did thereby excluding title documents. As it is, from the pleadings and the evidence, the Defendant’s/Appellant’s interest in the land in dispute which arose in 1977 and on which he built in 1992 arose prior to that of the Plaintiff/Respondent which arose from Exhibit ‘F’ in 1994. In logic and in law, the Defendant/Appellant is regarded as the equitable owner who also graduated into the legal Statutory Certificate of Occupancy. Clearly, the learned trial judge was wrong in my view to have ascribed possession to the Plaintiff/Respondent and

to have decreed injunction in his favour when his alleged right arose much later in time and so is adverse to a title existing earlier in time. The maxim is “quo Prioest tempore Poriorest Jure”. … The first in time has the strongest title and in Karimu Ayinla v. Sifawu Sijuwola (1984) 5 SC 44. It was held that there can be no such thing, as concurrent possession by two persons claiming adversely to each other. In S. A. Ogunbiyi v. S. B. Adewunmi (1988) 12 SC (Pt. III) 144. It was put thus “when two people are in the same field each claiming possession, the one who can establish title wins”. See also Chief Adebayo Bashorun Olufosoye & 2 Ors. v. Johnson Olorunfemi (1989) SC (Pt. 1) 29.”
per OKORONKWO, JCA (PP. 13-17, PARAS. C-A).
See also; ADESANYA v. OTUEWU & ORS (1993) LPELR – 146 (SC); EDOBOR v. OLOTU & ANOR (2012) LPELR – 9288 (CA).
Flowing from the above, the doctrine of first in time used as the rubicon in determining who has proved a better title. Both parties acquired interest in the land in 1977, however the interest acquired in the land are quite different. The Appellants acquired a leasehold interest while

the Respondent acquired the ownership and entirety of the interest in the land as gleaned from their agreements before the Court. It is also important to recall that the second land given to the Appellants was given in the stead of the first land at Cable point. I believe that the Umuezei family had already divested their interest to Mr. Broderick Okei Unoka in 1977 before the memorandum of 2005 with the Appellants, and a leasehold interest does not translate to a right to grant of statutory right over the land, a sale of land is different from a lease or customary tenancy. While a sale of land connotes absolute transfer of land free of any condition, lease or tenancy connotes transfer of land for a term of year(s) and for a specific rent/consideration.

The Appellants claimed in their counter claim title by purchase/sale of land but from their documents tendered, established tenancy/ leasehold interest in the land. I am not convinced that the Appellants proved their title to the land.
I also am inclined in favour of the decision of the lower Court where she held that;

“Learned Counsel to the Defendants has argued that the 2nd Defendants having purchased the land in 2005 as against the grant to the Claimant in 2007 from the same vendor or grantor, the 2nd Defendant’s right to the land ought to prevail over that of the Claimant being first in time. As to when the question of priority will arise in a case for declaration of title, the Supreme Court in the case of OKHUAROBO & ORS v. AIGBE & ANOR (2002) FWLR (PT. 116) 869 AT 919 A – B, had this to say:
“The question of priority will not arise for determination in a case until both parties have proved that they derived title from the same source and to the same land. Priority is between two possibly good titles and not between one good title and another which was initially a bad one.”
In the instant case, the question of priority as contended by the learned counsel to the Defendants does not arise because of the incurable bad state of the Defendants’ case with regard to the title they claim.”
See page 83, paragraphs 3 & 4 of the Record.

In light of the above, I resolve issues 1 & 2 against the Appellants.

Issues 3, 4 & 5.
On issues 3 & 4, flowing from my above postulation in issue 1 & 2 and the facts and pleadings on record before this Court, I am in agreement with the lower Court’s decision on the issue of damages and trespass, where she held thus;
“Having held that the Claimants has proved his title to the land in dispute, I shall consider whether he is entitled to damages for trespass. The Claimant has averred in his written statement on oath that on the death of his father he and his male siblings inherited the land. He further averred that in 2007 he obtained a written memorandum in proof of ownership of the land from Umuezei Quarter, after presentation of drinks and kolanuts. He prepared a survey plan describing the land and applied for a certificate of occupancy from the Governor of Delta state, which is yet to be issued. He further averred that he appointed the 3rd Defendant as the caretaker of the land, whose duties include collecting tolls from traders who erected stalls on the land. The 3rd Defendant was paying N 20,000 (Twenty thousand naira) monthly to the Claimant out of the monies collected. At a point the 3rd Defendant stopped paying money to him,

with the reason that sometime last year the 3rd Defendant started laying claim to the land or that he was caretaker of the land for someone else who turned out to be the 1st and 2nd Defendants. The Claimants have by evidence proved trespass to the land.”
See pages 84 – 85 of the Record.

I am in agreement with the reasoning of the lower Court and adopt the same and I add only these few words in support, that the Appellants failure to prove their title to the land in dispute and having decided that the Respondent proved a better root of title, the Appellants’ alleged acts of possession would be construed as acts of trespass.
In the case of BARAU & ORS v. CONSOLIDATED TIN MINES LTD & ORS (2019) LPELR – 46806 (CA), the Supreme Court held on whether acts of possession can be considered where title to land pleaded has not been proved thus;
“As for the acts of possession said to have been exercise by the 1st Appellant over the land as alluded to by Mr. Akubo, those acts will be of no avail since 1st Appellant failed to prove his title upon which he purported to exercise them: See Fasoro v. Beyioku (1988) 2 NWLR (PT. 76) 263, (1988) LPELR – 1249 (S.C) p. 14 – 15

where it was said thus: “When therefore a Plaintiff pleads Sale and Conveyance as his root of title, he either succeeds in proving the Sale or Conveyance or he fails. Where he succeeds, he wins and where he fails his case ought to be dismissed: see Akerele v. Atunrase (1969) 1 ALL N.L.R. 201. Having thus failed to prove the title he pleads, it will be wrong of him to turn around to rely on acts of ownership or acts of possession which acts are in the nature of things derivable from and rooted in the radical title pleaded.” In fact, having failed to prove his radical title, 1st Appellant’s said acts of possession are actually acts of trespass: see Fasoro v. Beyioku (1988) LPELR – 1249 (S.C) @ p.18; Ogbechie v. Onochie (1988) 1 N.S.C.C 211.”
per UGO, JCA (PP. 18 – 19, PARA E).
See also; OLAJIDE v. AKINBOBOYE (2018) LPELR – 46166 (CA); ALIBALOYE v. AKOGUN & ORS (2015) LPELR – 25207 (CA); AKINRIMISA & ANOR v. KURE & ORS (2014) LPELR – 23133 (CA).

In answering, the questions posed by the Appellants, I believe the Respondent is entitled to damages for trespass and has established acts of possession on the land.

I resolved these issues in favour of the Respondent.

In resolving issue 5, it is important to state the trite principle of law that it is necessary for a Claimant to file and serve defence to a counter claim to join issues with the counter claimant. If the Claimant fails to file a defence to properly traverse the material averment in the counter claim, then there will be no issues joined between the parties on the subject matter of the counter claim, and the allegation contained in the counter claim will be regarded as admitted. See; NIGERIAN HOUSING DEVELOPMENT SOCIETY LIMITED v. YAYA MUMUNI (1977) 2 SC 57 AT 58; USMAN v. GARKE (SUPRA).
However, as pointed out by the lower Court where she held thus;
“Learned counsel to the Claimant on his part argued that the contention of learned counsel to the Defendants may be the general rule but this case falls within the exceptions to the rule, as the Claimant’s action and the Defendants’ counterclaim are interwoven. He further submitted that the issues were joined on title to the land in dispute,

such that if the Claimants’ claim to title succeeds, the counter claim will fail and vice – versa. This is more as there cannot be in law a successful concurrent claim to title by both parties. He referred to the case of DABUP v. KOLO (1993) 12 SCNJ 1 AT 12; OGBONNA v. A.G IMO STATE (1992) 2 SCNJ (PT. 1) 26 AT 75; MOTUNWASE v SORUNGBE (1988) 5 NWLR (PT. 92) 90.
There is no doubt that the general rule of pleadings as regards counter claim is that counter claim is a separate and independent action; where a counter claim is incorporated in a statement of defence, a Plaintiff is duty bound to file a reply or answer in defence to it otherwise in appropriate cases a Court can enter judgment for the defendant.
This fact depends on the nature of the counter claim. Ordinarily in the instant case, the Claimant having failed to file a defence or reply to the counter claim, the Defendant would be entitled to judgment. The claim of the Defendants in their counter claim is for a declaration and as such require evidence which has been adduced. In the case of DABUP v. KOLO (supra) cited by learned counsel to the Claimant,

the Supreme Court held that in circumstances where the pleadings are interwined and interwoven with regard to the claim and counter claim as in this case, success of the Plaintiff would result in the failure of the counter claim of the Defendant, since the title to the land cannot be determined to the exclusion of the principle that there could be no current ownership or exclusive possession of the land in dispute. This clearly is an exception to the general rule that where a Plaintiff fails to file a defence to a counter claim the Defendant is entitled to judgment.
From the principle in the Supreme Court case as set out, I am of the view and I so hold that in the circumstances of the case where the pleadings are interwined and interwoven, the Defendants cannot be said to be entitled to judgment, the Claimant not having filed a defence or reply to counter claim.”
See pages 83 – 84 of the Record.
See also;MAOBISON INTER – LINK ASSOCIATION LTD v. U.T. C. NIGERIA PLC (2013) LPELR – 20335 (SC); AKPAJI v. UDEMBA (2009) LPELR – 371 (SC); DIKE & ORS v. ADUBA & ANOR (2016) LPELR – 41035 (CA); HADIZA & ANOR v. MOHAMMED & ANOR (2015) LPELR – 40383 (CA).

As an aside when the counter claim is examined, apart from the heading of “STATEMENT OF DEFENCE AND COUNTER CLAIM’’ I find that in paragraph 12 of the defence, he merely stated;
“WHEREFORE, the Defendant will rely on all the foregoing paragraphs to found a counter claim against the Claimant as follows
a. declaration that the 2nd Defendant is the person entitled to the grant of a certificate of statutory right of occupancy over the land in dispute.
b. Perpetual injunction restraining the Claimant, his agents, servant or privies from disturbing or interfering with the 2nd Defendant’s
c. The sum of N2,000,000 being damages for trespass.”

On the proper way to raise a valid counter claim in a statement of defence, the Supreme Court held in BENIN RUBBER PRODUCERS CO–OPERATIVE MARKETING UNION LIMITED v. S. O. OJO & ANOR (1997) LPELR – 772 (SC) thus;
“In this regard, attention must be drawn to the provisions of Order 1 Rule 14 of the High Court (Civil Procedure) Rules of Bendel State, 1976 which state as follows –

“Where any Defendant seeks to rely upon any facts, as supporting a right of set off or counter claim he shall, in his statement of defence, state specifically that he does so by way of set off or counter claim, and the particulars of such set off or counter claim shall be given. “Accordingly, where a Defendant seeks to rely upon any facts as supporting a right of set off or counter claim, he must in his statement of defence state specifically that he does so by way of set off or counter claim. He shall proceed therein to give particulars of such set off or counter claim. The recognized practice is to separate the facts relied upon to sustain the counter claim as much as possible from the remaining part of the statement of defence and to arrange them in numbered paragraphs with the word “Counter claim” prefixed to it as a hearing, so as to distinguish it from what is pleaded simply as a matter of defence to the Plaintiff’s claim. However the mere absence of such heading would not invalidate a counter claim which otherwise

is properly pleaded. See Lees v. Petterson (1878) 7 Ch. D 866. Material facts but not the evidence relied upon in proof of the counter claim must be pleaded. However, such facts, where appropriate, must, as a rule in the settlement of pleadings, be divide into paragraphs numbered consecutively. Where the Defendant pleads both a defence and a counter claim, the paragraphs of the counter claim are usually numbered as a continuation of the paragraphs of the statemnt of defence.”
per IGUH, JSC (PP. 21 – 22, PARA C).
See also; UDOFEL LIMITED & ANOR v. SKYE BANK PLC (2014) LPELR – 22742 (CA).
See also; Order 17 Rules 6 & 7 of the High Court of Delta State (Civil Procedure) Rules, 2009;
“6. Where any Defendant seeks to rely upon any ground as supporting a right of set off or Counter claim, he shall in his defence state specifically that he does so by way of set off or counter claim.
7. Where a Defendant by his defence sets up any counter claim which raises questions between himself and the Claimant along with any other persons, he shall add to the title of his defence a further title

similar to the title in a statement of claim, setting forth the names of all persons who, if such counter claim were to be enforced by cross action, would be Defendants to such cross action, and shall deliver his defence to such of them as are parties to the action withn the period which he is required to deliver it to the Claimant.”

Although it does not invalidate the action it makes the process irregular.

I am of the opinion that above excerpt of the lower Court’s judgment succinctly answers/resolves the issue 5 as raised by the Appellants and I adopt same as mine.

Having resolved all the issues herein in against the Appellants, this appeal lacks merit and is hereby dismissed.
The judgment of the High Court of Delta State, Isselle – Uku division per Hon. Justice C. O. Ogisi dated 14th April, 2016 is hereby affirmed.
Cost of N250,000 is awarded in favour of the Appellants.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal has no merit and should fail.

I agree with my Lord, Abimbola Osarugue Obaseki-Adejumo, JCA, in the lead all the 5 issues raised are,

for the reasons aptly adumbrated on the evidence led at the trial Court, unassailable.

I adopt the reasons and conclusion inclusive of the order relating to costs as entered the lead Judgment. Appeal is dismissed and the trial Court’s Judgment is affirmed.

Appearances:

I. A. Nwokike, holding brief of A. I Agbogu For Appellant(s)

O. Erondu, with him, R. O. Ekevwo For Respondent(s)