CHRISTOPHER IROEGBU v. ALPHONSUS ABAZIE (2017)

CHRISTOPHER IROEGBU v. ALPHONSUS ABAZIE

(2017)LCN/10201(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of July, 2017

CA/OW/144/2012

RATIO

RECORDS OF APPEAL: WHETHER THE RECORDS OF APPEAL ARE BINDING ON THE COURT AS WELL AS THE PARTIES

The Respondent was right when he argued that the Court and parties are bound by the Records of Appeal, and that parties and the Appellate Court cannot go outside what is contained in the Records of Appeal to consider and determine any issue of complaint raised on appeal. See Garba Vs Omokhodion (2011)15 NWLR (pt.1269) 145; Orok Vs Orok (2013) LPELR – 20377 CA; Iroaganachi Vs Madubuko & Anor (2016) LPELR – 21820 (CA). PER ITA GEORGE MBABA, J.C.A.

IDENTITY OF LAND: INSTANCES WHERE THE IDENTITY OF THE LAND IN DISPUTE WILL CEASE TO BE AN ISSUE

The authorities are replete, to the effect that the identity of land in dispute ceases to be an issue, where the two sides agreed as to the land in dispute, or knew the actual landed property or portion in dispute. See the case of Ayuya Vs Yonrin (2011) All FWLR (pt.583) 1842 at 1865, where my Lord, Onnoghen JSC (now CNJ) said:

“There is no dispute as to the fact that the Respondents know the identity of the land in dispute and its extent as can be gleaned from the pleadings. It is common occurrence in land matters for parties to refer to the same piece or parcel of land by different names and also to indicate in their respective plans different features, but the bottom line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all; what is usually in dispute is the ownership of the particular land being claimed by the plaintiff.”

In the case of Dakolo & Ors Vs Dakolo & Ors (2011) LPELR 915 (SC), my lord, Rhodes Vivour JSC said:

“In all cases on land, the first task is to identify the land or property in dispute where the identity of the land in dispute is resolved by each side producing survey plans, supported by credible evidence to satisfy the Court of the land or property in issue. But where land or property is well known to both sides, the need no longer arises.”

In Adumi Vs Registered Trustee of Deeper Christian Life Ministry (2017) LPELR – 42443 CA, Sankey, JCA said:

“This issue of identity of the land however, only arises when there is a clear dispute about the identity of the land. As long as the land in dispute is known to the parties, especially where both parties lay claim to title both parties lay claim to title over it, the burden of proving the area in dispute is no longer an issue for determination by the Court.”

In this case, at hand, the two sides were obviously talking about the same piece or parcel of land, which each side asserted claim on and pleaded boundaries and features, using different names (with one common name relating to one of the boundaries). But the Appellant’s claim touched on a specific land, allocated to his predecessor (Vendor) by Government, wherein the plot number, size and location were carried in the allocated letter, tendered in Court. And the Respondent clearly pleaded and gave evidence that he knew the disputed land, and alleged that the said land was allocated to the Appellant’s Vendor in error. There cannot be an issue of identity of such land, its extent and location any longer, to further bother the claimant to establish the same. See the case of Duru Vs Duru (2017) LPELR – 42490 (CA), this Court held:

the parties knew the exact portion that was in dispute and the Court was never in doubt about it. The law is that where the parties have identified the land in dispute and each knows the land in contention, identity of the land cannot be an issue again. See Bachiawa Vs Abdullahi (2016) LPELR – 41170 (CA); Enyinnaya Vs Otikpo & Anor (2015) 25529 (CA); Edjekpo Vs Osia (2007) All FWLR (Pt.361)1617 at 1648; Jimoh and Ors Vs Akande & Ors (2009) LPELR – 8087 (SC).

Certainly, identity of the land in dispute, its extent and location ceased to be an issue, again, to demand strict legal proof by the claimant. There was clear evidence before the Court to show that the two sides were talking about the same land and that they knew the exact identity and location of the land they were talking about and laying claims to at the trial. See Enyinnaya Vs Otikpo & Anor (supra). PER ITA GEORGE MBABA, J.C.A.

JUSTICES

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

CHRISTOPHER IROEGBU Appellant(s)

AND

ALPHONSUS ABAZIE Respondent(s)

ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment): Appellant filed this appeal against the decision of the Abia State High Court, in suit No:HU/9/2010, delivered on 2/2/2011 by Hon. Justice C.C. Jones Udeogu, wherein the learned trial Court dismissed the claim of the plaintiff (now Appellant) in its entirety.

The claims before the trial Court were for:
(a) A declaration that the Claimant is entitled to the certificate of occupancy in respect of a piece or parcel of land known as and called Plot 50 in Aguiyi Ironsi Layout in Umuahia North Local Government Area, Abia State within the jurisdiction of the Court with an annual rental value of N10.00.
(b) The sum of three Million Naira (N3,000.000.00) being special and general damages for trespass to the said piece or parcel of land.
(c) An injunction permanently restraining the Defendant his servants, agents and workmen from entering the land in dispute or interfering with it in any other manner whatsoever.?
(page 2 of the Records of Appeal).

Appellant, being dissatisfied with the decision of the Lower Court, filed the appeal, as per pages 114 to 118

of the Records of Appeal, disclosing Eight (8) grounds of Appeal. He filed his brief on 21/02/14, which was deemed duly filed 4/2/15, and distilled three (3) issues for the determination of the appeal, as follows:
1) Whether the learned trial judge was right when he dismissed the claimant?s case on the ground that the claimant did not prove the identity, extent and the location of the land in dispute. (Grounds 1, 2, 5 and 7)
2) Whether the learned trial Judge was right in holding that the mere fact that the defendant said he knows the land in dispute does not make the identity of the land certain and precise. (Ground 3)
3) Whether the learned trial Judge was right in holding that the claimant failed to prove that the land in dispute is plot 50 Aguiyi Ironsi Layout. (Ground 4).

The Respondent filed his brief of argument on 28/5/2015, which was deemed duly filed on 15/6/2016. He adopted the 3 issues nominated by the Appellant for the determination of the appeal, yet still, he confused same with the following issues, which he claimed ?will bring the real issues for determination?-
1) Whether the Lower Court was right when

it held that the claimant failed to establish, by credible evidence the identity, extent and location, of the land he is claiming (grounds 1,2,3,4,5, 6 and 7).
2) Whether the lower, Court was right when it held that the claimant failed to prove that the land in dispute is Plot 50 Aguiyi Ironsi Layout (Ground 4).
3) Whether the claimant (now Appellant) proved that the land in dispute is within or part of Aguiyi Ironsi Layout Umuahia. (Ground one of the Respondent?s Notice)
4) Whether the claimant?s (now Appellant) case is not contradictory, manifestly unreliable and therefore not proved as required by law (Ground 2 of the Respondent?s Notice).

Of course, the Respondent had filed a Respondent?s Notice, as per the leave of this Court, granted on 8/4/13, contending that the decision of the Court below should be affirmed on grounds other than those relied upon by that Court. He alleged, as grounds of the Respondent?s Notice, that:
?1) The claimant failed to prove, on the balance of probabilities, that the land in dispute is within the Government designated Aguiyi Ironsi Layout Umuahia, or that it was

acquired by due process; that he did not plead and prove the general/master plan, showing the plot therein, for the Court to determine whether the land in dispute is part of or falls within the said Government layout.
2) The claimant?s case is contradictory, at variance, manifestly unreliable and therefore not proved as required by law.?

Appellant had filed a Reply brief on 29/6/16 to react to the Respondents brief and Respondent?s Notice.

In the Appellant?s Reply brief, he complained that after the Respondent was granted leave on 8/4/2013, to file Respondent?s Notice, he (Respondent) did not file any additional record, to incorporate the said Respondent?s Notice of contention.
I think, Appellant was in error to expect the Respondent to file Additional Records of appeal for the purpose of the Respondents? Notice. In practice, the grounds and arguments of the Respondent?s Notice must situate within the Records of Appeal already before the Court, and the evidence relied upon at the trial, before a Respondent is allowed to raise a Respondent?s Notice. The Respondent is therefore, not

under any duty to file Additional Records of Appeal (except where he finds the Records compiled by Appellant, incomplete, and that pursuant to Order 8 Rule 6 of the Court of Appeal Rules, 2016).

I should however note at this stage, that the Respondent appeared confused and was wrong to have adopted Appellant?s issues, distilled for the determination of the Appeal and at the same time, formulate his own issues different from what the Appellant did. The Respondent also erred when he distilled his issue 1 from grounds 1,2,3,4,5,6 and 7 of the appeal, and at the same time, distilled his issue 2 from the same ground 4, which he had earlier used in distilling the issue 1. See the case of Egbebu Vs IGP & ORS (2016) LPELR ? 40224 (CA); where it was held:
Once a party has distilled an issue from a given ground of appeal, or joined the ground with other ground(s) to distill an issue for determination of the appeal, that ground(s) is no longer available to distill another issue for determination of the appeal. See the case of Anodu Vs Commandant P.C. Maiduguri (2009) 15 NWLR (Pt.1163) 75; SPDC Vs Registrar of Business

Premises, Abia State (2015)3 CAR 433.?

I shall therefore consider this appeal on the issues as distilled by the Appellant, while also considering the Respondent?s Notice. But in doing so, I think Appellant?s three issues are on the same legal point, being:-
“Whether the trial judge rightly held that Appellant did not establish the identity of the land, its extent and location, that is, plot No.50 Aguiyi Ironsi Layout, Umuahia.?

The above shall be the summary of the three issues for the determination of this appeal.

Arguing the appeal on 23/5/17, Appellants Counsel, C.N. Nwokorie Esq, who settled the brief, submitted that the Respondent in his pleading and evidence had admitted knowing the land in dispute. He referred us to the evidence on pages 29 and 69 of the Records the appeal; and said that in paragraph 4 (c) of the statement on oath by the Respondent, he also admitted that the land in dispute shares boundary with Hon. Justice Obisike Oji Cresent, Umuahia (and the aforesaid boundary was also pleaded by the Appellant).

?Counsel admitted that in action for determination of title to land, the onus is on

the plaintiff to prove the area of land to which his claim relates. He relied on Momoh Vs Umoru (2011) 15 NWLR (pt.1270) 217. However, Counsel said, where the area of land in dispute is well known to the parties, or where there is enough evidence to infer the identity of the land, proof of the identity of the land in dispute is not necessary. He relied on Gbadamosi Vs Dairo (2007)3 NWLR (pt.1021) 282 at 307.

Counsel said that the evidence before the Court below showed that the identity of the land in dispute was not an issue; that the Respondent having admitted knowing the land very well, the requirement to prove the identity of the land in dispute became unnecessary. He relied on Maigari Vs Mailafiya (2011) 1 NWLR (pt.1228) 379 at 394. Counsel also submitted that apart from the clear evidence of the Respondent that he knew the land very well, Appellant had led evidence to prove the identity of the land. He referred us to the paragraphs 4 (i ? iv) of the statement of claim (page 3 of the Records) and to the evidence of CW1 (page 21 of the Records). He tendered the certificate of Occupancy Registered as No. 76, page 76 volume 180, issued to the

Appellant?s Vendor, Chief Ndukwe, by the Government of Imo State (page 48 of the Records), which was admitted as Exhibit G, and the said Exhibit G carried the survey Plan of the land, which clearly identified the Plot 50 Aguiyi Ironsi Layout, with other lands sharing boundaries with it. Counsel said the said survey plan was a Government Plan, with the inscription ?Ikwuano/Umuahia Local Government Area, Umuahia, Plan No Uma (M) 69, Aguiyi Ironsi Layout.?

Counsel said one of the ways of which evidence can be led to prove identity of land in dispute is by production and tendering of a survey plan of the land. He relied on Ogedengbe Vs Balogun (2007)9 NWLR (pt.1039) 380 at 395. Counsel said the survey plan of the land shows the location, extent and size of the land in dispute as ?Plot 50 Aguiyi Ironsi Layout, Umuahia? and the size of the land as 1144.444; that the Respondent did not counter-claim, and so it was the plaintiff?s (Appellant) survey plan that determined the land in dispute. He relied on Momoh Vs Umoru (2011) 15 NWLR (pt.1270) 217 at 247.

Counsel said the trial Court was therefore in error to have held

that ?the claimant failed to establish by credible evidence, the identity, the extent and location of the land he is claiming.? (page 113 of the Records). Counsel relied in Iseogbekun Vs Adelakun (2013) All FWLR (pt.664)168; Atanda Vs Lliasu (2013) 6 NWLR (pt.1351) 529 at 555.

Counsel added that the Respondent had also admitted that the land in dispute was plot 50 Aguiyi Ironsi Layout, Umuahia. He referred us to the statement of defence, paragraph 12(a) (b) and (c) (pages 9-10 of the Records). He also referred us to Exhibit ?O? tendered by the Respondent.

He urged us to allow the appeal and set aside the judgment of the Lower Court.

The Respondent?s Counsel, A.O. Ugwu Esq, who settled the Respondent?s brief, said the trial Court was right when it held that Appellant failed to prove that the land in dispute was Plot 50 Aguiyi Ironsi Layout.

?Counsel said that Respondents paragraph 3 of the statement of defence, which admitted knowing the land, cannot be read in isolation, to imply admission of the identity, extent and location of the land; that the claimant (Appellant) had the burden to prove his case, that

the land he claimed was part of the alleged Aguiyi Ironsi Layout. He relied on G.A. Titiloye & Ors Vs Chief J. Omoniyi Olupo & Ors (1991) 9-10 SCNJ 122 at 125.

Counsel said that the trial Court found rightly, as a fact, that the claimant (CW1) and his witnesses, (particularly, CW3, who was Director of Lands) contradicted themselves, materially, as to the identity, extent and location of the land in dispute; that the Respondent, having joined issues with the claimant, as to the identity, extent and location of the land in dispute, the onus was on the Appellant to prove his case. He relied on Benedict Otanma Vs Kingdom Yougbagha (2006)10 WRN 1 at 8.

Respondent?s Counsel also argued the Respondent?s Notice, as per the issues 3 and 4.

On Respondents Issue 3, whether the Appellant had proved that the land in dispute was within or part of Aguiyi Ironsi Layout, Umuahia, Respondent?s Counsel answered in the negative. He said that the claimant (Appellant) failed to prove that ownership of the land in dispute vested in the Government, who thereafter, granted to his purported predecessor in title; that Appellant and his witness

(CW3) withheld information when they failed to produce the purported notice of acquisition of the land pleaded in paragraph 6 of his reply to the statement of defence, as well as the master plan of the entire Aguiyi Ironsi Layout, Umuahia; he said that that failure should be presumed against Appellant by virtue of Section 167 (d) of the Evidence Act, 2011.

On the Respondent?s issue 4 ? whether the claimant?s case was contradictory, manifestly unreliable and therefore not proved as required by law, Counsel for Respondent answered in the affirmative. He asserted again, that the duty was on Appellant to lead strong and positive evidence to establish his case, being a declaratory action. He relied on Benjamin Akinyala & Ors Vs Badagry L.G. & Ors (2015) All FWLR (pt.764) 104 at 111. Union Bank of Nigeria Ltd Vs Prof. Ozidi (1994) 3 NWLR (pt.33) 385. He referred us again to the evidence of CW1 (Appellant), and CW3, and said that on the basis of the contradictions earlier highlighted, Appellant?s case could still be dismissed. He relied on Ajide Vs Kelari (1985)3 NWLR (pt.12) 248.

In his Reply Brief, Appellant submitted

that the Respondent?s issues 3 and 4, founded on Respondent?s Notice, were not reflected in the Record of appeal; that Respondent did not file additional record, to incorporate the said Respondent?s Notice. He said that the Court cannot go outside the Record of Appeal to decide an issue or complaint not contained in the Record of appeal; Appellant said that Respondent did not file additional record to incorporate the said Respondent?s Notice. He added that the Court is bound by the Records of Appeal, and that all proceedings or processes relevant to the appeal must be reproduced in the Records of Appeal. He relied on State Vs John (2013) 12 NWLR (pt.1368) 337 at 361; Brittama ? U (Nig) Vs Seplat Peter Dev. Co. Ltd (2016)4 NWLR (pt.1503) 541.

Counsel urged us to strike out the issues 3 and 4 by the Respondents.

RESOLUTION OF ISSUES
The Respondent was right when he argued that the Court and parties are bound by the Records of Appeal, and that parties and the Appellate Court cannot go outside what is contained in the Records of Appeal to consider and determine any issue of complaint raised on appeal. See Garba Vs

Omokhodion (2011)15 NWLR (pt.1269) 145; Orok Vs Orok (2013) LPELR ? 20377 CA; Iroaganachi Vs Madubuko & Anor (2016) LPELR ? 21820 (CA).

But Appellant in this appeal cannot say that the issues and complaints raised in the Respondent?s Notice are not founded on the Records of appeal before us, since the complaints alleged, relate to the evidence adduced, as to the location or proof of identity of the land, as well as the alleged contradictions in the evidence of the Appellant/his witnesses. I think Appellant ought to have concerned himself with the truth of the allegation, whether the evidence in fact, did not disclose the location of the land in dispute or was contradictory, to warrant the dismissal of the claim.

Of course, those issues raised in the Respondent?s Notice can still be resolved in the sole issue earlier formulated by this Court for the determination of this appeal, namely:
?Whether the trial judge rightly held that Appellant did not establish the identity of the land, its extent and location ? that is plot No. 50, Aguiyi Ironsi Layout, Umuahia.?

?Was the trial Court right to hold

that Appellant did not establish the identity, extent and location of the land in dispute?

The facts of this case appear to be simple and straight forward. Appellant, as claimants, claimed that the land in dispute had earlier been allocated to one Chief Ndukwe Nwokeke Ndukwe by the then Government of Imo State, on 29/7/81, with a certificate of occupancy, registered as No.76, page 76, Volume 180 in the lands Registry, Owerri (now Umuahia). Chief Ndukwe took possession of the land and fenced it with concrete blocks and later executed an irrevocable power of Attorney in favour of the Appellant in respect of the land. That was in Feb. 2005. In 2007, the Respondent trespassed on the land, which led to the filing of this suit.

But the Respondent, in his statement of defence, claimed to have bought part of the land in dispute in 1963 and thereafter, bought a large portion of the land in 1995, that several years after, then Imo State Government (now Abia State), purportedly acquired the land and allocated same to Chief Ndukwe Nwokeke Ndukwe in 1981. The Defendant denied the land in dispute was acquired by government or that it was within Aguiyi Ironsi

Layout, or that it is known as and called Plot 50, Aguiyi Ironsi, Layout, Umuahia.

The evidence of the CW1, as per the summation by the judgment of the trial Court (pages 104 ? 105) shows:
?The said plot No 50 Aguiyi Ironsi, Layout, Umuahia Abia State? was allocated to Chief Ndukwe Nwokeke Ndukwe by the then Imo State Government? on 29/7/81 with certificate of occupancy, Registered as No.76, page 76 volume 180 in the lands Registry Owerri? The document was tendered as Exhibit G. Upon being allocated, the said Chief Ndukwe Nwokeke Ndukwe took possession of it and fenced it with concrete blocks and put an iron gate thereon. It is his evidence that Chief Ndukwe Nwokeke Ndukwe executed an Irrevocable Power of Attorney in his (CW1) favour in respect of the land in dispute and he took possession of the land by virtue of the said Irrevocable Power of Attorney. He tendered the Power of Attorney, dated 1/2/2005 as Exhibit A? His solicitor? applied to the Ministry of Lands for certified true copies of documents relating to the allocation of the land in dispute to Chief Ndukwe. The documents were issued to him vide

a letter No.LUM/2526/75 of 14/1/2001 (sic) (should be 14/1/2010 – see page 126 of the Records).
The certified True Copies of the said documents were admitted in evidence as follows:-
(1) Allocation of state land form as Exhibit ?B?
(2) Letter of Offer dated 29/7/81 as Exhibit ?C?
(3) Acceptance slip as Exhibit ?D?
(4) Letter dated 20/11/86 by Chief Ndukwe Nwokeke Ndukwe conveying a Union Bank (Nig) Limited draft for payment as Exhibit E. The receipts for the certifications were admitted in evidence as Exhibits F1 and F2.
He said that in 2007 the defendant trespassed into the land in dispute and started erecting a 2 room structure on the said land. He immediately confronted the defendant? The defendant reported him to the Area commander?s office, Umuahia alleging that he (CW1) forcible entered into the land in dispute. The Police, in the course of investigating the matter, wrote to the Ministry of Lands on the issue? The Police told the Defendant the result of the investigation and asked him to keep off the land in dispute. The defendant failed to do so but continued to

build the said 2 ? room structure on the land in dispute. He reported the conduct of the defendant to the Police at Zone 9, Police Command, Umuahia. The said Zone 9 Police? visited the Ministry of lands, Umuahia, and also wrote a letter to the Ministry of lands, on the issue. The Ministry replied the Police reference letter, dated 18/8/2008.
In the year 2009 the Police at Zone 9 invited him and the defendant and informed them that their investigation showed Chief Ndukwe Nwokeke Ndukwe as the Government allotee of the said plot 50 Aguiyi Ironsi Layout. Despite this report from the Police, the defendant continued the construction of his said 2 ? room structure

I had to reproduce that summation of the evidence of the Appellant (who testified as CW1), to demonstrate the full detail of how Appellant came by the land; that its identity, and its location were specified by documents (Exhibit A and G and the attached survey plan).

?The evidence by CW2 agreed with that of the Appellant. The evidence of CW3, (a civil servant in the Ministry of Land and Survey, Umuahia, and Director of lands) too, admitted knowing the

parties; he said that the Police had sought the views of the Lands Ministry over the status of the ownership of the land, known as plot 50 Aguiyi Ironsi Layout (following the criminal element of the case between the two parties); that he was directed to write to the Police on the matter. His letter was Exhibit J, dated 1/11/2007. He said that:
from all the records available in the Lands office Umuahia, the land in dispute was allocated to Chief Nwokeke Ndukwe of Abiriba in Ohafia Local Government Area, Abia State. The said land is in the area designated by the government as Aguiyi Ironsi Layout, Umuahia, Abia State.?
See page 106 of the Records, carrying the summation of the evidence by the trial judge.

The Defendant (as DW1), according to the trial judge, in his statement on oath, stated that he knows the land in dispute? but that ?it is not known as and called No. 50 Aguiyi Ironsi Layout in Umuahia North Local Government Area?; DW1 said that the land in dispute is traditionally known as and called ?Okporo ? Uzo ? Ubi? of ?Uzo ? Ubi? situate at Umuobasi Ugba

Ibeku, now known as and called No. 8 Amaokwe Street, Umuahia in Umuahia North Local Government Area of Abia State. (See the summation of DW1?s evidence in page 106 of the Records).

The Defendant said that the land in dispute was at a road junction and traversed on one side, by Hon. Justice Obisike Oji Cresent; that Government Agents had in the past pasted No.18 Hon. Justice Obisike Oji Cresent, Umuahia on one of his gates. He added that Aguiyi Ironsi, Layout did not extend up to the land in dispute, or to Amaokwe Street, Umuahia; that all the lands in Amaokwe Street belonged to individuals or families, as owners.

The Defendant said that he had been in part of the land since 1963, and the remaining part in 1995; that in 2005 he was issued with certificate of occupancy, thereon, by the Governor of Abia State, registered as No.90, page 90 in volume 83, lands Registry (Exhibit N). He denied the land was allocated to Chief Ndukwe in 1981 and said that Appellant?s certificate of occupancy was improperly obtained, or that it did relate to the land in dispute.

?In his pleading and evidence, the Appellant had stated the boundaries of the land

as follows (as per findings of the Court):
?On the North, plot 49 Aguiyi Ironsi, Layout.
On the South, Justice Obisike Orji Cresent
On the East by plot 54 Aguiyi Ironsi Layout,
On the West by plot 48 Aguiyi Ironsi Layout.?
(page 104 of the Records)

That of the Respondent was as follows:
(1) By No.2 Eze Akoma Street, Umuahia, now Numbered as No.10 Hon. Justice Obisike Oji Cresent, Umuahia
(2) By No.7 Amaokwe Street, Umuahia
(3) By No.6 Amaokwe Street, Umuahia
(4) By Hon. Justice Obisike Oji Cresent, Umuahia (page 107 of the Records)

What stands out clearly in this case is that the Respondent, despite his pleadings and claims, never counter-claimed in this case, and so never set out to prove any claim or title to the land in dispute. It was the Appellant?s claim to which he pleaded the boundaries and supplied the particulars of allocation of the land as per Exhibit G, that was in issue. On page 110 of the Records, the trial Court said:
the claimant averred and pleaded the identity and boundaries of the disputed land in paragraph 3 and 4 of the statement of claim

as follows:
(3) The land in dispute is known as and called plot 50 Aguiyi Ironsi Layout in Umuahia North L.G.A, Abia State, Nigeria, within the jurisdiction of the Honourable Court?
(4) The said plot 50 Aguiyi Ironsi Layout, was allocated to Chief Ndukwe Nwokeka (sic) Ndukwe aforesaid by the then government of Imo State (now Abia State) on 29/7/81 and with certificate of Occupancy Registered as No.76 page 76, Vol. 180 in the Lands Office Owerri, (now Umuahia) and is bounded as follows:
(i) On the North by Plot 49 Aguiyi Ironsi Layout
(ii) On the South by Justice Obisike Orji Crescent
(iii) On the West by plot 48 Aguiyi Ironsi Layout
(iv) On the East by plot 54 Aguiyi Ironsi Layout.?

In his findings, on pages 111and 112 of the Records, the trial judge observed that under cross examination, the Appellant (as CW1) admitted that two roads shared boundaries with the land in dispute, contrary to his pleadings and evidence; that apart from Justice Obisike Crescent there was another road (tarred) which he (Appellant) did not remember the name. The Court observed that the land in dispute was bounded:
?On

the North by No.49. Aguiyi Ironsi Layout.
On the South by a road, on the West by No.48 Aguiyi Ironsi Layout. The Eastern boundary neigbour is not indicated.?

Thus, the Court found that in the place of ?Plot 54 Aguiyi Ironsi, Layout,? (indicated by the Appellant as the Eastern boundary), there was a road, which name was not indicated! On page 12 of the Record, the trial Court said:
?My understanding of the evidence emanating from the CW3 is that the land which the defendant claim as his own, touches or is about the said plot 50 Aguiyi Ironsi Layout.?

I strongly doubt whether the above observation by the trial Court, which admitted of plot 50 Aguiyi Ironsi Layout, was enough to make the identity of the land in dispute, its extent and location in his case, an issue, to deny the Appellant a declaration of title, whereas the two sides clearly knew the land in dispute and said so, and the document of allocation of the said land was produced in Court, as per Exhibit G, issued by Government and supported by evidence of an official of an government (CW3) in the relevant department ? Land Registry, with

documents that showed that the said land allocated was plot No.50, Aguiyi Ironsi, Layout, Umuahia. There was also the Police Report, affirming the identity of the land in dispute and the ownership thereof, as per the reports from the Land?s Registry. I cannot therefore see how the identity of the land or the portion of the land in dispute was any more an issue, to suggest that, plot No.50 Aguiyi Ironsi was not clearly identified as the subject matter of litigation. Meanwhile, the Respondent had admitted clear knowledge of the disputed land, the extent and the location thereof, though he gave different names to the land and its boundaries (except Hon. Justice Obisike Oji (Orji) Crescent).

gleaned from the pleadings.
It is common occurrence in land matters for parties to refer to the same piece or parcel of land by different names and also to indicate in their respective plans different features, but the bottom line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all; what is usually in dispute is the ownership of the particular land being claimed by the plaintiff.?
In the case of Dakolo & Ors Vs Dakolo & Ors (2011) LPELR 915 (SC), my lord, Rhodes Vivour JSC said:
?In all cases on land, the first task is to identify the land or property in dispute where the identity of the land in dispute is resolved by each side producing survey plans, supported by credible evidence to satisfy the Court of the land or property in issue. But where land or property is well known to both sides, the need no longer arises.?
In Adumi Vs Registered Trustee of Deeper Christian Life Ministry (2017) LPELR ? 42443 CA, Sankey, JCA said:
?This issue of identity of the land however, only arises when there is a clear dispute about the identity of the

land. As long as the land in dispute is known to the parties, especially where both parties lay claim to title both parties lay claim to title over it, the burden of proving the area in dispute is no longer an issue for determination by the Court.?
In this case, at hand, the two sides were obviously talking about the same piece or parcel of land, which each side asserted claim on and pleaded boundaries and features, using different names (with one common name relating to one of the boundaries). But the Appellant?s claim touched on a specific land, allocated to his predecessor (Vendor) by Government, wherein the plot number, size and location were carried in the allocated letter, tendered in Court. And the Respondent clearly pleaded and gave evidence that he knew the disputed land, and alleged that the said land was allocated to the Appellant?s Vendor in error. There cannot be an issue of identity of such land, its extent and location any longer, to further bother the claimant to establish the same.
See the case of Duru Vs Duru (2017) LPELR ? 42490 (CA), this Court held:
the parties knew the exact

portion that was in dispute and the Court was never in doubt about it. The law is that where the parties have identified the land in dispute and each knows the land in contention, identity of the land cannot be an issue again. See Bachiawa Vs Abdullahi (2016) LPELR ? 41170 (CA); Enyinnaya Vs Otikpo & Anor (2015) 25529 (CA); Edjekpo Vs Osia (2007) All FWLR (Pt.361)1617 at 1648; Jimoh and Ors Vs Akande & Ors (2009) LPELR ? 8087 (SC).
Certainly, identity of the land in dispute, its extent and location ceased to be an issue, again, to demand strict legal proof by the claimant. There was clear evidence before the Court to show that the two sides were talking about the same land and that they knew the exact identity and location of the land they were talking about and laying claims to at the trial. See Enyinnaya Vs Otikpo & Anor (supra).

At page 112 of the Records, the trial Court had held, as follows:
?When the Surveyor General charted the survey plan of Mr Abazie?s (Respondent) land, he discovered that his land fell substantially on a place designated as a road in the layout, while it touches on tangentially

this plot No.50 Aguiyi Ironsi Layout? My understanding of the evidence emanating from CW3 is that, although Aguiyi Ironsi Layout is located within Umuobasi Ugba, that Layout does not encompass or include all parcel?s of land in Umuabasi Ugba. The land which the defendant claims as his own touches or abuts the said plot 50 Aguiyi Ironsi Layout. It is rather unfortunate that the claimant and his witness particularly CW3, failed to make available the layout plan of the area of the land acquired by the then Imo State Government or Notice of acquisition which would have clearly shown the extent of the land acquired by the government, the said plot 50 Aguiyi Ironsi Layout and probably the land of the defendant which CW3 alleged touches tangentially plot No.50 Aguiyi Ironsi, Layout.?

In my view, the above clearly shows that the trial Court was not in doubt about the identification of Plot No.50 Aguiyi Ironsi, Layout, clearly proved and identified in Exhibit G. It appears the trial Court was rather interested in identifying the Respondent?s land, which the case was not about.

I therefore resolve this issue in favour of the

Appellant and hold that the appeal is meritorious.

I set aside the decision of the trial Court. I hold that the evidence led at the trial Court had established the claim of the claimant, entitling him to the declaration sought, namely, declaration for title, damages and injunction.

I make the following orders:
1) Declaration that the claimant is entitled to Certificate of occupancy in respect of the piece or parcel of land known as and called Plot No. 50, Aguiyi Ironsi Layout, Umuahia, Umuahia North LGA Abia State.
(2) the sum of One million Naira (N1,000,000.00) being damages for trespass.
(3) Perpetual injunction, restraining the Respondent, his agents, servants of privies from further act(s) of trespass on the said Plot of land, No. 50 Aguiyi Ironsi Layout, Umuahia.

The Respondent shall pay the cost of this appeal, assessed at N50,000.00 (Fifty Thousand Naira) only.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading the draft of the leading judgment delivered by my learned brother ITA G. MBABA, JCA; and I am in complete agreement with the reasoning and conclusion of his

lordship in respect of the appeal.

Accordingly, I too allow the appeal and abide by the order in relation to cost as contained in the leading judgment.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree

Appearances

C.N. NWOKORIE, ESQ.For Appellant

AND

A.O. UGWA, ESQ.For Respondent