ASABORO v. OGHENEKEVWE (2022)

ASABORO v. OGHENEKEVWE

(2022)LCN/16258(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/AS/93/2020

Before Our Lordships:

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal

Between

PRINCE MIKE OGHENEPHIKPARE ASABORO APPELANT(S)

And

CHIEF THOMAS OGHENEKEVWE (JP) RESPONDENT(S)

RATIO

THE DUTY OF A CLAIMANT FOR DECLARATION OF TITLE TO LAND

Proof of identity of land claimed is the first duty of a claimant for declaration of title, injunction or even just trespass to land: seeEfetiroroje v. Okpalefe II & Ors (1990) 5 NWLR (PT 193) 513 AT 533, 539 (SC), (1991) LPELR-1024 (SC); Awote v. Owodunni & Anor (1987) NWLR (PT 57) 366; (1987) LPELR-659 (SC) p.7.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the 28th November 2019 judgment of the High Court of Delta State in Suit No UHC/28/2018 in which that Court adjudged respondent as having proved his claims of declaration of title to land, injunction and damages against appellant as defendant in the case and accordingly entered judgment for him against appellant.

Respondent in paragraph 14 of his Statement of Claim before the trial Court claimed against appellant:
1. A declaration that he, claimant/respondent, is the person entitled to the Statutory Right of Occupancy over the piece or parcel of land being, lying and situate at Ovwodemor Bush by Ihwre-Ovie, Ogor, also particularly known as Umutume Bush, which is along Ughelli/Iyede Express Road, Ihwre-Ovie Ogor in Ughelli North Local Government Area measuring 16ft to the east by the Eyavwie land/Akpojiyovwi land, 158ft to the West by NEPA line, 150ft to the South by Akpojiyovwi land and 145ft to the North by Onobberhie land approximately (2195.447 Sq. Metres) vide a Deed of Conveyance dated 30th day of August 1998 between Paul Ekokote Umuze Ihwre-Ovie Ogor and the claimant which said land is more particularly shown and delineated in survey plan No. CEO/DT/NBR/2017/036 of the 17th day of September 2017 prepared by Surv. Onohworemie C.E. with Survey Pillar/Beacon Nos. CPI, CP2, CP4 CP4.
2. Perpetual Injunction against restraining the defendant, his privies, agents and associates or any person whatsoever claiming through for or by the defendant from entering, trespassing upon, carrying out any work or in any manner interfering with claimants ownership/possessory rights, interest over all that piece or parcel of land described in relief 1 above.
3. The sum of ₦10,000,000.00 (Ten Million Naira) being general and special damages when respondent without consent or authority trespassed unto claimant’s land aforesaid.

Respondent’s case was that he bought the parcel of land described above from Ekokotu Umuze family in 1998 and a formal conveyance was executed by the family in his favour. He said on the basis of that conveyance, he entered into possession and occupation of the said land by planting crops on it and continued to do so until 2018 when he decided to develop it and so brought sand on the land and began molding blocks on it, when appellant, on 16/2/2018, sent armed thugs to it, chased away his workmen, destroyed his blocks and cement including the unused bags of cement and cleared his crops and survey beacons on the land hence his suit.

Appellant, in opposition, contended that respondent did not own the land or indeed any portion of land around it or even in Umutume Bush where it is located; that respondent simply ‘jumped’ onto his parcel of land which he, appellant, bought in 1997 from one now late Dr. (Chief) James Otubini Akpojaro who in turn bought from the same Umuze Ekokotu family that respondent claims sold to him. He, admitted, however, that respondent once owned land around the area in dispute, but asserts that respondent had disposed off his entire interest there to him and some timber sellers/carpenters, such that even when the timber dealers/carpenters wanted to buy more land there and approached respondent, respondent expressly told them that he had disposed off his entire land there so they should rather approach him, appellant. The timber dealers, he said heeded respondent’s counsel and approached him and he sold part of his land to them, so it is them, timber dealers, who now share boundary with him. He said respondent even confirmed all foregoing, particularly the fact that he had sold off his entire land in Umutume bush, in his testimony in a previous Suit No: UHC/140/2009 between one Eredjena E. Joshua and Paul Ekokotu Umuze, which suit he, appellant, later joined as co-defendant.

Coming to the events of February 2018 referenced by respondent, he said it was respondent who in early February 2018 broke and entered his said land now ‘in dispute’ and planted pegs, so he, appellant, asked his agent/caretaker to remove them. On 16th February 2018, he said, respondent again broke and entered into the same ‘land in dispute’ by depositing sand there and started molding blocks on it so he, appellant, stopped him by asking him to remove them. He denied engaging thugs or employing any form of violence in turning respondent out of the land.

These conflicting assertions went to trial at the High Court of Delta State before Edun J. Respondent testified in proof of his case and called two witnesses from his vendors Umuze Ekokotu family to confirm that their family actually sold the disputed land to him. He also tendered documents, including his title documents, from the Umuze Ekokotu family who the appellant incidentally claimed also sold to his vendor late Dr. (Chief) James Akpojaro.

Appellant on his part did not testify in his defence. He did not also call even any of the timber dealers who he claimed informed him that the respondent told them he had disposed off all his land holding in Umutume bush and the vicinity of the disputed land. Instead, it was rather his Legal Practitioner brother alone that testified on his behalf and closed his case.

Final addresses were thereafter filed by parties wherein the appellant contended most vigorously, among others, that respondent did not prove the identity of the land claimed by him so his reliefs were not grantable, and that respondent, as he earlier asserted in his pleadings, admitted in his evidence in a previous Suit No UHC/140/2009 that he had divested himself of all his land-holding in Umutume Bush where the land is located, so he cannot claim to own the disputed land located there.

Edun, J., was, however, not persuaded by any of these arguments of appellant. On appellant’s assertion of failure of proof of identity of land in dispute by the respondent, his Lordship dismissed it thus in his judgment:
“It is on record that the defendant admitted asking the claimant’s workers to vacate the land in issue even though without violence and this, in my view, supports the evidence of the claimant on the identity of the land in dispute.”

Coming to the issues raised by the appellant as regarding the evidence of respondent in Suit No UHC/140/2009, he ruled thus on it:
“The defendant in my view asserted that the land in dispute is the same with the land in dispute in UHC/140/2009. I must, however, commend the counsel for the defendant for his brilliant approach to discredit the evidence of the claimant but the contradictions arising from such cross-examination are not so material as to induce disbelief on the part of the Court.”

After describing the evidence of the respondent as ‘more credible, plausible and reliable” and observing that the appellant did not call any other witness, that even his only witness only relied on his Deed of Conveyance and the evidence of respondent in UHC/140/2009 which ‘could not stand the test of time as far as the case was concerned,’ the Court finally entered judgment for respondent for all his three reliefs.

Appellant is dissatisfied hence his instant five-Ground appeal to this Court. In line with the rules of this Court, he framed from his five grounds the following two issues, which the respondent also adopted:
1. Whether the respondent was entitled to judgment having regard to the pleadings and evidence led.
2. Whether having regard to the evidence the learned trial Judge was right in his judgment in favour of the claimant/respondent and in holding that the evidence of the respondent is more credible, plausible and reliable and that the defendant failed to call any other witness to establish that the land in dispute is related to the land in dispute in suit No UHC/140/2009.

As it was before the trial Judge, the thrust of his argument on issue 1 is that the respondent did not prove the identity and boundaries of the land he claimed in his action so the trial Judge was wrong in entering judgment for him. Citing a number of cases on the duty of a claimant for declaration of title to land to first prove the identity and boundaries of the land claimed by him, Chief Akpomudje (S.A.N.) for appellant, anchoring his argument mainly on respondent’s witness statement on oath and evidence in Suit No UHC/140/2009 which appellant’s sole witness tendered before the lower Court as Exhibits C and D, argued that appellant put in issue in his statement of defence the identity of the land in dispute claimed by the respondent by asserting that it was part of the land in dispute in Suit No: UHC/140/2009 which respondent gave evidence that he had sold off to him and timber dealers so he had no land there again to claim. On that basis and relying also on the evidence adduced by the respondent in the lower Court, learned senior counsel submitted that the lower Court was therefore wrong in granting the claims of the respondent so we should re-evaluate the evidence and hold to the contrary of that decision.

On issue 2, learned senior counsel first pointed out that it is the respondent who claimed for declaration so he can only succeed on the strength of his case. He then once referenced his arguments under issue 1 to submit that the evidence of respondent was in violent conflict with the reliefs sought by him and granted by the lower Court. He said that even the number of respondent’s Survey Plan in his pleadings is different by one letter from the one on the actual Survey Plan tendered by him at the trial and marked Exhibit B; that whereas the Survey Plan pleaded by Respondent is CEO/DT/NBR/2017/036, Exhibit B tendered by him is numbered CEO/DT/NVR/2017/036. No explanation, he submitted, was given by the respondent for this discrepancy in the numbers.

Learned senior counsel next took us through the evidence of respondent and the same Exhibit B and submitted that there are also discrepancies between the portion of land of respondent in that survey plan and his evidence in Court as to its boundaries.

Counsel also argued that the respondent having testified against the Ekokotu family in Suit No. UHC/140/2009 and omitting to say then that Paul Ekokotu sold the land in dispute in this case to him, ought not to have been believed by the trial Judge in his claim in this suit.

Counsel also attacked the witness statements of the two witnesses of the respondent. He said they are illiterates so their Witness Statements needed Illiterates Jurat to render them admissible in evidence; that its absence on them meant that they were inadmissible and cannot be relied on. He cited Gundiri v. Nyako (2013) ALL FWLR (PT 693) 816 AT 856 para D in support of that argument.

Counsel concluded by submitting that there was a total failure or improper evaluation by the trial Judge of the evidence adduced before him so we should re-evaluate the evidence, allow the appeal and order the dismissal of respondent’s case at the trial Court.

On his part, Mr. Ekeme Ohwovoriole, S.A.N., for the respondent was of the opinion that the two issues framed by the appellant are so interwoven that they are better argued together and so he argued them.

On appellant’s contention that the respondent did not prove the identity of the land in dispute, Mr. Ohwovoriole submitted that the identity of land in dispute only becomes an issue in a case when the defendant makes it so in his pleadings by specifically disputing either the area or size covered or the location as shown in the survey plan or as described in the statement of claim. Learned senior counsel cited in support of that the case of Adenle v. Olude (2003) FWLR (PT 157) 1057 (S.C.). Referring next to passages of the pleadings of both parties, counsel then submitted, first, that the identity of the land in dispute in this case was not in issue, that on the contrary, its identity was well known to both parties as the lower Court also held. Where the identity of a disputed land is well known to both parties, the requirement to further prove its identity ceases to be a necessity, counsel argued and cited Ayuya v. Yonrin (2011) ALL FWLR (PT 538) 1842 AT 1865 (SC) among other cases. The bottom line, he submitted, is that both parties knew the land in dispute otherwise there would be no dispute at all; that what is in dispute is its ownership.

On the one-letter discrepancy in the Survey Plan of the respondent and that referenced in his Statement of Claim, learned senior counsel submitted that the issue made of it by his brother silk for the appellant was merely technical as the error was a typographical one. The days of technical justice he said are past. Counsel then cited the dictum of Bage, JSC, in Union Bank Plc v. Ravih Abdul & Anor (2018) LPELR-46333 (SC) p. 17-18 where a similar error was so treated by the apex Court. Counsel argued in the alternative that if the said Survey Plan was inadmissible, appellant should have objected to it at the time it was sought to be tendered; that having failed to so object, he cannot be heard to object to it now – in support of which counsel cited the decision of this Court in Onyenwe & Anor v. Anaejionu (2014) LPELR-22495(CA) p.42-43. Learned silk submitted that appellant established his title to the disputed land by producing his documents of title which is one of the recognized ways of proving title to land as per Idundun v. Okumagba (1976) 9-10 S.C. 227.

On appellant’s reference and reliance on respondent’s evidence in Suit No: UHC/140/2009, counsel said appellant failed to prove that the land involved in that suit and the present are one and the same. Counsel said Respondent made it clear in his evidence in Suit No UHC/140/2009 (Exhibit D) that his land there which is sold out is the portion he bought from Late Prince Johnson Adjara and not the one in dispute in this case which he bought from Paul Ekokotu. Counsel then cited Lagos State Urban Renewal Authority & Anor v. Okolo & Ors (2010) LPELR-4421 (CA) to submit that in any case appellant needed to file a composite plan reflecting the land litigated in Suit No: UHC/140/2009 and this one to make out his contention that they are one and the same parcels of land.

On appellant’s contention that appellant’s two witnesses, CW1 and CW2, are illiterates so the absence of an illiterate’s jurat on their Witness Statements rendered them inadmissible in evidence, learned counsel first cited this Court’s decision in Tar & Ors v. Ministry of Commerce & Industries & Ors (2018) LPELR-44216 (SC) to submit that Witness Statements are not strictly speaking affidavits so the requirement of jurat does not apply to them. In any case, he argued and cited Sunday v. F.R.N. (2013) LPELR-20192(CA), p.38-39, Illiterate’s jurat is only meant for the protection of the illiterate from the writer of a document so its omission cannot be invoked by any other person if he is not complaining. Learned senior counsel finally asked us to resolve both issues of the appellant against him and dismiss the appeal.

Resolution of issue(s)
I share the opinion of the respondent that the two issues of the appellant are intertwined and so better argued together. In the event, I shall also adopt the approach of respondent by treating them together as much as possible.

The first major complaint of appellant is that respondent did not prove the identity of the disputed land so Edun J. was wrong in entering judgment for him. Proof of identity of land claimed is the first duty of a claimant for declaration of title, injunction or even just trespass to land: seeEfetiroroje v. Okpalefe II & Ors (1990) 5 NWLR (PT 193) 513 AT 533, 539 (SC), (1991) LPELR-1024 (SC); Awote v. Owodunni & Anor (1987) NWLR (PT 57) 366; (1987) LPELR-659 (SC) p.7.

But then, it is equally settled law that the need to prove identity of land will only arise in a case tried on pleadings where the defendant in his Statement of Defence makes an issue of the identity of the land given by the plaintiff: seeAnyanwu v. Uzowaku (2009) ALL FWLR (PT 499) 411 AT 436; Adenle v. Olude (2003) FWLR (PT 157) 1074 AT 1076; Buraimoh v. Bamgbose (1989) 3 NWLR (PT 190) 352 AT 365, 369.
Also, where the land is well known to both parties, the issue of identity of land will not arise again and the Court cannot possibly reach a conclusion that the area claimed is uncertain. SeeRamonu Atolagbe v. Korede Olayemi Shorun (1985) LPELR-592 (SC); Anyanwu v. Uzowaku (2009) ALL FWLR (PT 499) 411 AT 436; Adenle v. Olude (2003) FWLR (PT 157) 1074 AT 1076; Buraimoh v. Bamgbose (1989) 3 NWLR (PT 190) 352 AT 365, 369
Aligned to all the foregoing is that, where from the evidence or processes filed by parties the identity of the disputed land is clear, it will not be open to parties to raise issue of identity of disputed land: Atolagbe v. Shorun (1985) 1 NWLR (PT 2) 360 AT 374–376; Osho v. Ape (1998) 8 NWLR (PT 562) 492 AT 506–507; Oshodi v. Eyifunmi (2000) 1 SCNJ 295 AT 325; Motanya v. Elinwa (1994) 7 NWLR (PT 356) 252 AT 361; Ayuya & Ors v. Yonrin & Ors (2011) 5 SCM 16 AT 38. For instance, where the defendant in agreement with the plaintiff repeatedly refers to the land in issue as “the land in dispute’ with the definitive ‘the’, it will no longer lie in his mouth to say that the identity of same land in dispute was not clear and so needs further identification, just as it will also be perverse for the Court to hold that the identity of such disputed land was not clear.
Furthermore, even though a plaintiff’s description of the land is vague but the defendant claims a counterclaim and in it clearly identifies the land in his counterclaim, a declaration which will otherwise not be granted can be granted on that basis: Okedare v. Adebara (1994) 6 NWLR (PT 349) 157. The same principle applies where the defendant clearly identifies a disputed land in his statement of defence: Anyanwu v. Uzowaku (2009) ALL FWLR (PT 499) 41.

So was the identity of the land in dispute between the parties in this case not clear on the pleadings of parties or made an issue by the appellant in his Statement of Defence to require its proof? As stated earlier, this same argument of lack of proof of identity of the disputed land by the respondent and its effect on the case was made by the appellant to the trial Court but it was firmly rejected, with that Court saying that:
“It is on record that the defendant admitted asking the claimant’s workers to vacate the land in issue even though without violence and this, in my view, supports the evidence of the claimant on the identity of the land in dispute.”

I completely agree with him. In this case not only did the respondent plead copiously in paragraphs 1, 3 and 7 of his Statement of Claim and the reliefs sought the identity and boundaries of the disputed land as reproduced earlier in this judgment, he also further pleaded in paragraphs 9, 10 and 11 of the same Statement of Claim that when he tried to develop his said land in February 2018, appellant engaged thugs who entered the land and damaged everything he had there and chased away his workmen. What was appellant’s response to all those assertions? He first stated very definitely and categorically thus in paragraphs 5 of his Statement of Defence as regards the land in dispute between them:
5. …..The land in dispute is in boundary with a piece of land the defendant bought from the claimant in or about 1997 under Urhobo native law and custom…. (Italics mine)

He was not done. He further pleaded thus on it in paragraphs 6, 7, 8, 9, 15, 21, 22, 25 and 26 of his same Statement of Defence:

6. Defendant avers that a memorandum evidencing the sale of the land by the claimant to the defendant was also prepared by Chief B.O.. Asaboro and duly signed by the claimant, defendant, Mr James Akpojiyovwi and Henry Olori.

7. When the land in boundary with the land in dispute was being sold by the claimant [respondent] to the defendant [appellant]…..
9. The land in dispute in this case is but part of an expanse of land bought from late Dr. (Chief) Otubini Akpojaro in 1997 by the defendant. …..
15. Paul Ekokotu who was one of the witnesses of the sale of the land part of which is now in dispute to Akpojaro did not and could not have executed the Deed of Conveyance dated 30th August 1998 which is now being paraded by the claimant in this case. ……..
25. The claimant has never been in possession of the defendant’s land. The Ekokotu family did not sell any land to the claimant. Claimant had no crops on the land in dispute, which land belongs to the defendant.
26. Before and after the plan of claimant and Prince Eredjena E. Joshua in filing Suit No UHC/140/2009 failed in April 2017, the defendant has been enjoying quiet possession of the entire land including the portion the claimant has jumped or broken into.

Coming to the events of February 2018 referenced by the respondent in his Statement of Claim, appellant again had this to say in paragraphs in paragraph 27 and 29 of his Statement of Defence:
27. The claimant in early February 2018 broke and entered into the defendant’s land and planted block pegs, which the defendant asked his agent/caretaker, Kingsley Akpojaro, to remove. On or about 16th February 2018, the claimant again broke and entered the land of the defendant by taking sand there and started to mould blocks. The defendant stopped him however. The defendant did not use any armed thugs and no property of the claimant was destroyed. The claimant was asked to leave the land and he took out the two or three bags of cement he brought on the land.
29. The claimant does not have any land in the area where the land in dispute is situate after the sale of the land he bought from Adjara to the defendant and timber dealers or sellers. The claimant is only making trouble by jumping on the defendant’s land.
(Italics all mine)

In the face of these averments where appellant not only repeatedly referred to the land in issue by describing it as ‘the land in dispute’ but also pointedly asserted that claimant ‘had no crops on the land’ (a fact he would not know if he did not know the said land) and that he, appellant, ‘stopped’ respondent from developing when respondent ‘jumped into it,’ how can he seriously assert that the identity of the land in dispute was not clear to him and so needed further identification so the learned trial Judge’s decision rejecting that argument was perverse? That submission could only have been made by him in hope and not in expectation of a decision in his favour. In a not too dissimilar situation in Atolagbe v. Shorun (1985) LPELR-529 (SC) p. 31, very wise and analytical Oputa, J.S.C., had this to say:
“In this case, the defendant in the trial Court pleaded in paragraph 4 of his Statement of Defence that “if the plaintiff was a tenant of the Ojora Chieftaincy Family the alleged relationships of Landlord and Tenant was determined by the said family who in fact evicted the plaintiff from possession (the italics is mine). In paragraph 5 the defendant pleaded that the Ojora Chieftaincy Family let the land to him on the 18th day of August 1974.”
“Which land, it may rightly be asked? The defendant did not plead that the Ojora family let a portion of land to him. No. He called it “the land.” The only conclusion one logically arrives at, is that the Ojora family let the land from which the plaintiff had been evicted to the defendant. In paragraph 6 the plaintiff pleaded that ‘the land in dispute was let to him by the owners thereof in August 1974.” From paragraphs 4, 5 and 6 of the defendant’s Statement of Defence it is beyond doubt that ‘the land in dispute’ was the land let by the Ojora family to the defendant in August 1974”, the land the possession of which the plaintiff had been evicted. How could the learned trial Judge in view of the fact that the identity of the land in dispute was not denied in the defendant’s Statement of Defence receive any evidence tending to show that the parties were in possession of two distinct plots of land…”

I only wish to add that in the circumstances of this case where the identity of the land in dispute is well known to both parties and clear on the records even the rejection of a Survey Plan tendered by parties to further show its identity and boundaries (as appellant argued Exhibit B of Respondent should be rejected on grounds of the clear typographical error in one of the letters of the said Survey Plan) does not impact negatively on the case and the identity of the said land already proven and/or not in dispute. See again Atolagbe v. Shorun (1985) LPELR-529 (SC) p. 27 where Aniagolu, JSC, after holding that the survey plan pleaded and tendered in that case was inadmissible because it did not bear the countersignature of the Surveyor General as required by Section 3(1)(b)(ii) of the Survey Law, quickly added that:
“But the matter does not end there. Respondent’s Counsel also argued and correctly, in my view, that the land in dispute was never in doubt even before the trial Judge who in the course of the proceedings made an interlocutory injunction in respect of the land, and that the parties were ad idem in their pleadings on the particular land in dispute. At no time, he said, was the identity of the land in dispute in issue before the trial Court and before the Court of Appeal. I agree.”

In summary, I resolve this issue against the appellant and with that goes one major pillar of appellant’s appeal.

Appellant I am afraid did not also fare better in his contention that the land respondent swore to in Witness Statements (Exhibit C) and also told the High Court of Delta State in his previous evidence in Suit No UHC/140/2009 that he had ‘sold all his land’ related to the land in dispute in this present case so the lower Court was wrong in granting his claims even on this ground. Yes, it is true that under cross-examination in Suit No UHC/140/2009, Exhibit D that he, respondent, told the former Court on 3/11/2014 in his evidence for the plaintiff in that case thus:
“I sold a part of my land to Chief Mike Asaboro [Appellant herein]. It is that part from the back of NEPA Line. It is part of it that ends at NEPA line. The boundary towards the Ughelli/Asaba road is with the claimant. I have sold all my land. I sold some to carpenters. The part is from NEPA Line to Ughelli/Asaba road have been sold to carpenters by me. I bought the total land from Ughelli/Asaba road.”

He was however also quick to immediately clarify what he meant by his ‘total land’ that he had sold to the carpenters and Chief Mike Asaboro (Appellant herein), when he added immediately thereafter as follows:
“Late Johnson Ajara sold the total land I had to me.” (Italics mine)

Respondent has been consistent on that assertion that he was there only talking about the land he bought from Late Johnson Ajara and not any other land of his. That is shown by paragraph 8 of his Reply to appellant’s statement of defence in this action where he, respondent, averred as follows:
8. That in reply to paragraphs 16, 17 & 18 of the Defendant’s Statement of Defence, the Claimant’s avers that the land which was covered by the Suit No UHC does not extend to the land subject matter of this suit. That his evidence in this suit was to the effect that the land he purchased from Adjara he sold to Prince Mike Asaboro (defendant herein) and the Timber dealers but not the land he bought from Paul Ekokotu, as the land he bought from Paul Ekokotu is demarcated from the land of the Defendant by the High Tension (NEPA Line). And that he never at any time told the Timber Dealers that he had no land in Umutume bush and that he the land sold to the Defendant and the Timber dealers share common boundary with the Defendant’s land which Defendant purchased from Dr. Akpojaro and the subject matter of this suit which he purchased from the Ekokotu family.

See also his cross-examination at paragraph 2 of p. 121 of the records where respondent maintained this same stance.

Equally noteworthy is that Respondent, still under cross-examination in the same Suit No UHC/140/2009, told the Court in that previous proceeding that he had several pieces of land, when he testified thus there:
“I have several pieces of land. I can’t remember whether I sold another piece of land to Chief Mike Asaboro [appellant herein]. But I know that I sold the one sharing boundary with the cause of action to him. I bought the land from Prince Johnson Ajara who was the then “Iyasere”. ……….. The land, which I bought from Ajara extend beyond the NEPA Line up to Ughelli/Iyede road. The Ughelli/Iyede road is also Ughelli/Asaba road or Ughelli/Isoko road.” (Italics mine)

Appellant cannot therefore be correct when he asserted that respondent told the Court in previous Suit No UHC/140/2009 that he had sold all his land-holding in Umutume bush to him and timber dealers and even went on to inform the timbers dealers so when they approached him for more land.

In any case, if anything, I had rather expected that appellant who asserted that respondent informed timber dealers that he had sold all his land around the land in dispute or in Umutume bush would call at least one of the said timber dealers and by that way knock-off respondent’s denial in this case that he still had land in Umutume bush. That appellant never found even one of the said timbers dealers to confirm his assertion tells volumes about the veracity of his said claim. I think it is the same point the learned trial judge, Edun J., was also trying to make when he observed, in closing his very crisp and undoubtedly well-reasoned/written judgment that:
“The evidence of the claimant is more credible, plausible. The Defendant did not call any other witness and his only witness who testified merely only relied on his Deed of Conveyance and the evidence of the claimant in UHC/140/2009 which in my view cannot stand the test of time as far as the case was concerned.”
I am in complete agreement.

What is more, respondent not only testified personally but called witnesses from the Ekokotu Umuze family which both parties agreed originally owned the disputed land. Appellant on his part did not even as much as enter the witness box to testify to his assertions, rather, it was his brother whose testimony on the issues concerned is largely hearsay that testified on his behalf. Such hearsay evidence can never effectively compete against or dislodge the direct testimonial evidence of respondent and his witnesses on the issues at stake. This issue of respondent’s testimony in Suit No UHC/140/2009 as contradicting his evidence in this case must therefore be also resolved, and is hereby resolved, against the appellant.

Incidentally, appellant’s defence in the lower Court and even in this appeal rested on these two rejected pillars of lack of failure of proof of identity of the land in dispute and respondent purportedly telling the Court in UHC/140/2009 that he had sold all his land in Umutume bush so he cannot be entitled to the reliefs of declaration of title etc over land in the same vicinity or Ovwodemor/Umutume that he sought. Every other issue is subsumed in those two issues. Those two issues having been decided against him, his appeal automatically collapses and is hereby dismissed while the decision of the High Court of Delta State in SUIT No: UHC/28/2018 granting the claims of respondent against appellant is hereby affirmed.
Cost of the appeal is assessed at ₦200,000.00 in favour of Respondent.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother BOLOUKUROMO MOSES UGO, JCA.

For the more detailed reasoning in the lead judgment I also agree that this appeal is bereft of merit. It is accordingly dismissed.
I adopt the consequential orders in the lead judgment as mine.

SYBIL NWAKA GBAGI, J.C.A.: I have read the draft judgment of my learned brother, BOLOUKUROMO MOSES UGO, JCA. All the issues in the appeal were comprehensively and painstakingly addressed in the said judgment to my satisfaction, such that I have nothing more useful to add to it.
This appeal automatically collapses and is accordingly dismissed.
I align myself with the order as to cost.