(2018) LPELR-46852(CA) · OHIMOGBO v. IDIH CITATION: (2018) LPELR-46852(CA) In the Court of Appeal...

OHIMOGBO v. IDIH

CITATION: (2018) LPELR-46852(CA)

In the Court of AppealIn the Abuja Judicial Division

Holden at Abuja

ON FRIDAY, 14TH DECEMBER, 2018Suit No: CA/A/364/2016

Before Their Lordships:

ABUBAKAR DATTI YAHAYA Justice, Court of AppealADAMU JAURO Justice, Court of AppealTINUADE AKOMOLAFE-WILSON Justice, Court of Appeal

BetweenMATHEW ALFA OHIMOGBO - Appellant(s)

AndATTAH IDIH - Respondent(s)

RATIO DECIDENDI

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1. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: Requirements of the law fortraditional evidence to be satisfactorily proved"It is settled law that traditional history is based onhistory extending beyond human memory. It is narrated by oral evidence handed downfrom generation to generation. If it is in respect of ownership of land, the relevantfamily ancestry or community heads, as the case may be, through whom the land hasdevolved must be pleaded and evidence clearly led in support. See Davies Vs Ajibowa(1968) NMLR 92; Owoade Vs Omitola (1988) NWLR (part 77) 413 at 424 - 425. Theplaintiff/respondent in presenting her case before the trial Court relied on traditionalevidence to the effect that the land in dispute was originally founded by Emakoji Ogaand after his death, the land devolved to Idih Emakoji, the respondent's father andafter the death of the father, the land devolved to the respondent. See page 32 of therecord. The evidence of PW5 on page 25 - 26 and the evidence of PW6 supported theevidence of the respondent. Though the respondent succeeded in presenting her oralevidence of traditional history, however, the tendering of Exhibit P3 to further supporther claim gave the appellant counsel ground to contend that the respondent projectedtwo competing traditional histories. The evidence of the respondent is to the effect thather grandfather Emakoji Oko disvigined the land, then upon his death it devolved onher father Idih Emakoji who also upon his demised it was inherited by the Respondent.Exhibit P3, the Deed of Ownership stated Iyidi Omokoji who was described as the fatherof the Respondent as the original owner who transferred the land to the Respondent.The story apparently is along the same line, as the devolution history of the landdevolves around the predecessors of the Respondent. See Makinde Vs Akinwale(supra)."Per JAURO, J.C.A. (Pp. 20-22, Paras. F-B) - read in context

2. EVIDENCE - CROSS-EXAMINATION: Effect of failure to cross-examine a witness onmaterial point"Furthermore it has to be pointed out that theappellant never deemed it necessary to cross examine the Respondent on the so calledtwo competing traditional histories. The effect of failure to cross examine a witness ona particular matter is a tacit acceptance of the truth of the evidence of the witness. SeeGaji Vs Paye (2003) 8 NWLR (part 823) 583. The contention that the respondentprojected two competing traditional histories cannot stand."Per JAURO, J.C.A.(P. 22, Paras. B-D) - read in context

3. EVIDENCE - PROOF OF TITLE TO LAND: Ways of proving title/ownership of land"In a claim for declaration of title to land, it is the lawthat title to land can be proved in five ways, that is: 1. By traditional evidence; 2. Byproduction of documents of title which are duly authenticated; 3. By acts of selling,leasing, renting out all or part of the land or farming on it or in a Portion of it; 4. By actsof long possession and enjoyment of the land; and 5. By proof of possession ofconnected or adjacent land in circumstances rendering it probable that the owner ofsuch connected or adjacent land would, in addition, be the owner of the land in dispute.See Idundun Vs Okumagba (1975) 9 - 10 SC 227 at 246 - 250; Morenikeji & ors VsAdegbosin & ors (2003) LPELR 1911 (SC)."Per JAURO, J.C.A. (Pp. 22-23,Paras. E-B) - read in context

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4. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: What is required of a personrelying on evidence of traditional history in an action for declaration of title to land"In instant case, in proving her case, the respondentrelied on the traditional evidence. It is trite that a party who is relying on traditionalhistory must specifically plead and prove the following before the trial Court: a) Whofounded the land? b) In what manner was the land founded; c) The names andparticulars of successive owners through whom he claims. See Akinloye Vs Eyilola(1968) NWLR 97; Olujinle Vs Adeagbo (1988) 2 NWLR (part 75) 238; Lawal Vs Olufonobi(1996) 12 SCNJ 376 and Nruamah & Ors Vs Ebuzoeme & Ors (2013) LPELR(19771) (SC). The respondent's evidence on page 37 of the record proved that the landin dispute was founded by Emakoji Ogo. PW6 also on page 31 of the record of appealsupported the respondent's evidence that Emakoji Ogo disvirgined the land. Theevidence of PW5 on page 25 of record of appeal was also to the effect that the landsubject of dispute was disvirgined by Emakoji Ogo. On the requirement of the mannerhow the land was founded, respondent testified at the trial Court that when EmakojiOgo disvirgined the land, he used to farm on the land. See page 37 of the record. PW5in this regard also testified that Emakoji used the land for farming. See page 25 of therecord. In the same vein, PW6 also testified that Emakoji Ogo disvirgined the land. Hefarmed on the land. The third requirement is the names and particulars of successiveowners through whom the respondent claims. In this regard, the evidence of therespondent, PW5 and PW6 are very instructive. On page 37 respondent testified that:"The land belongs to Emakoji Ogo originally ... After his death, Idi Emakoji took over theland idi Emakoji is no longer alive, After the death of ldi Emakoji, I am now on the landusing because I am the daughter of ldi ..." PW5 also put it succinctly the same way asthe evidence of the respondent as follows: "The land subject of dispute was disvirginedby Emakoji Ogo ... Idi is the son of Emakoji Ogo and the plaintiff is the daughter of Idi.Emakoii Ogo used the land to farm. Emakoji Ogo is no longer alife. After his death, Iditook over the use of the land. Idi is no longer a life. After the death of ldi Attah tookover the land ..." See page 25 of the record of appeal. The evidence of PW6 was in thesame line with the evidence of the respondent and PW5 on the names and particularsof successive owners through which the respondent claimed the land in dispute. PW6testified as follows: "Emakoji Ogo disvirgined the land... After the death of Emakoji, Iditook over the land. Idi is no Ionger alife. After the death of ldi, the plaintiff took over theland." The law is settled that the plaintiff who relied on traditional evidence must provehis title to the land and this he has to do by tracing title to his ancestors. See Ogbonna& Anor Vs Jumbo & Ors (2015) LPELR 24378 (CA). In the instant case, theplaintiff/respondent traced title to the land in dispute to her ancestors, her evidenceand that of her witnesses was consistent and was able to link the plaintiff with thetraditional history relied upon."Per JAURO, J.C.A. (Pp. 23-26, Paras. B-A) - readin context

5. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: Effect of a traditional evidence thatis found to be conclusive and cogent"It is trite that once the traditional evidence is found tobe conclusive and cogent, there would be no need whatsoever to require further proof.See Akunyili Vs Ejidike (1996) 5 NWLR (part 449) 351 at 4l7; Balogun Vs Akanji (1988) 1NWLR (part 70) 301. In Alikor & Ors Vs Ogwo & Ors (2010) 5 NWLR (part1187) page 281 the Court held that: "I agree with the respondent counsel that sincethe respondents, as claimants to the right of occupancy based on traditional history,have successfully discharged the onus of proof of that root of title, there is no furtherneed for them to lead evidence proving acts of possession or any other mode ofproving title to the land in disputed land. See Balogun Vs Akanji (1988) 7 NWLR (part70) 301 at 322..."Per JAURO, J.C.A. (P. 26, Paras. A-D) - read in context

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6. EVIDENCE - EVIDENCE IN PREVIOUS PROCEEDINGS: The purpose of tendering acopy of previous proceedings; and the effect of evidence given in previous proceedingsby a witness"In the instant case, the appellant made heavyweather that the judgment of both the trial Court and the lower Court be set aside onthe contention that the trial Court relied on Exhibit P3 and P5 to declare title in favourof the respondent. Exhibit P5 is a record of proceedings of Grade 1 Area Court Anyigbabetween Alhaji Shaibu Etu Vs Attah Idih (Respondent) & 2 Ors in suit No.CV/12/2002. As borne out of the record of appeal, particularly on pages 130 - 135 thetrial Court used Exhibit P5 to determine whether or not the subject matter of Exhibit P5is connected to the land currently in dispute. As it has been held in a plethora of casesthat Exhibit P5 being a record previous proceeding can only be used for the purposes ofcross - examination to contradict the oral evidence of a witness who testified in the saidprevious proceeding in a subsequent proceeding. See Salisu & Ors Vs Abubakar& Ors (2014) LPELR 23075 (CA). In the instant case, Exhibit P5 was not used bythe appellant to contradict the Respondent or any witness and it is also clear that thedecision of both the trial Court and the lower Court was not based on the said exhibit.The approach adopted by the trial Court to determine whether or not the subjectmatter of Exhibit P5 is connected to the land in dispute was against the settledprinciple of the law stated in Salisu & Ors Vs Abubakar (supra). This approach,however, will not affect the decision that the respondent had proved her case based ontraditional evidence."Per JAURO, J.C.A. (Pp. 26-27, Paras. E-F) - read in context

7. EVIDENCE - EVALUATION OF EVIDENCE: Whether evaluation of evidence andascription of probative value is a primary function of the trial Court"It is correct law that evaluation of evidence andascription of probative value to same is the primary duty of the trial Court where this isproperly done an appellate Court has no reason to interfere, except where the trialCourt failed to take advantage of the opportunity it had of seeing and hearing thewitnesses. See Sagay y Vs Sajere (2000) 2 NSCQR (part 1) 345 and Alli Vs Alesinloye(2000) 2 NSCQR (part 1) 297."Per JAURO, J.C.A. (P. 29, Paras. A-C) - read incontext

8. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: Cases where the rule in Kojo II v.Bonsie will not be applicable as to evidence of traditional history"The stand taken by the lower Court on the complaintof the appellant as to his witnesses cannot be faulted. It is the law that where a plaintiffas in the instant case had established his title to the land in dispute directly bytraditional history as pleaded by him, there will be no need for the Court to dabble intothe rule in Kojo Vs Bonsie to draw inference to establish that which had already beendirectly prove. See Nwabuoku Vs Onwordi (2002) 3 NWLR (part 755) 558, Balogun VsAkanji (1988) 1 NWLR (part 70) 310."Per JAURO, J.C.A. (P. 29, Paras. C-F) - readin context

9. JUDGMENT AND ORDER - ERROR/MISTAKE IN JUDGMENT: Whether everyerror/mistake/slip in a judgment will result in a judgment being set aside"Moreso as the trial Court never relied on Exhibit P5 togrant title to the Respondent, it is not every error that leads to a reversal of a judgmenton appeal, except where it is demonstrated that such error has occasioned aMiscarriage of Justice. See Faleye Vs Dada (2016) NWLR (part 1534) 80 at 107. In thesame vein, no miscarriage of justice was also occasioned on the appellant by thedecision that the respondent proved her case over the land in dispute."PerJAURO, J.C.A. (P. 28, Paras. A-C) - read in context

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10. LAND LAW - IDENTITY OF LAND: Instance when the identity of land will not be inissue"In a claim for declaration of title to land, the startingpoint is the identity of land. The identity of the land must be clearly ascertained. Theidentity of land would be in issue only if the defendant in his pleadings disputed eitherthe area of the land or its location. See Ezendu & Ors Vs Obiagwu (1986) 2 NWLR(part 21) page 208; Ayanwale Vs Odusami (2011) LPELR 8143 (SC). The issue ofidentity of the land in dispute is so crucial that where the plaintiff is unable to identifythe land he is claiming, he cannot succeed in the case even if other issues are decidedin his favour. See Ibhafidon Vs Igbinosu (2001) 20 WRN 132 SC. As indicated earlier, theburden or onus is always undoubtedly on the plaintiff to show clearly the area of land towhich his claim relates. In giving the identity of the land, plaintiff/respondent identifiedthe land as follows: "The land has boundary. On the Eastern part of the Iand the land isbound by a road to the Kogi State University to Ojikpadala Ajachagba is the boundarymark. This road formally known as project road. The road is still there up till today. Onthe Western part of the land, the road from Anyigba to ldah which passes the front ofblue house hospital is the boundary mark. On the Northern part, the land starts fromthe post office up to diagnostic hospital. When the post office was not built, Rubbertrees were planted to mark the boundary neighbon. On the south, the boundaryneighbour is one Sunday Ogbaii. See page 37 - 38 of the record of appeal. As earlierindicated, the identity of the land in dispute will be in issue if, and on|y if, thedefendant in his statement of defence and in the instant case his oral evidence beforethe trial Court made it one, by disputing either the area or the size or the location orthe features indicated by the plaintiff in her oral evidence before the trial Court. SeeNwogo Vs Njoku (1990) 3 NWLR (part 140) page 570; Babatola Vs Adewumi (2011)LPELR 3945 (CA). In this regard, the defendant/appellant described the land in disputeas follows: "The boundary of the land to the east is Ocholi Ochi road. The boundaryneighbour the family of ldih (plaintiff). To the west is Anyigba ldah road that passesthrough the front of Blue house Hospital. The boundary neighbour on the westoriginally is Ogbaiele family... to the north, the family neighbour is Momoh Ogbaielefamily also. To the south, it is Oando filling station and Nigeria union of road transportworkers. Originally, we share boundary with Ochiyi family." From the above, theappellant's description was the same with the description given by the respondent,only that some of the boundaries were described with different names. The appellantadmitted knowing the land in dispute. The law is settled that where the identity of theland in dispute is known to the parties, the fact that different names are given to theland or area where the land is located is called by different names is not fatal to thecase of the party claiming interest in such land. See Akiti Vs Oyekunle & Anor(2015) LPELR - 24681 (CA). In Edjekpo Vs Osia (2007) 8 NWLR (part 1037) 635 at 671 -572 paragraphs H - B the Supreme Court per Onnoghen JSC (as he then was) held: "... itis not strange, in fact that is a common feature in a claim for title to land that parties tothe dispute call the land in dispute by different names, and will always identify differentlandmarks as constituting the boundary features of the land. The Courts have alwaysseen through the controversies and determine the real issues in controversy betweenthe parties which is who is the actual party entitled to be declared the owner." In theinstant case, the appellant's contention that the identity of the land in dispute is inissue, fails."Per JAURO, J.C.A. (Pp. 34-37, Paras. B-C) - read in context

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ADAMU JAURO, J.C.A. (Delivering the Leading

Judgment): This is an appeal against the decision of the

Kogi State High Court of Justice (hereinafter referred to as

the "lower Court”) sitting in its appellate jurisdiction in

appeal No. AHC/2A/2014 Coram Hon. Justice R. O.

Olorunfemi, Hon. Justice E. O. Haruna and Hon. Justice A.

Akogu delivered on 24th March, 2016.

The history of the suit can be traced to the Upper Area

Court, Anyigba (hereinafter referred to as the “trial Court”)

wherein the respondent then as plaintiffs filed her complain

before the trial Court against the defendant now appellant.

The action was for a claim of title to land situate at Oko

Ogbayikeke between Anyigba Ojikpadala Idah express road

and Anyigba road, an order of injunction and forfeiture of

tenancy. In support of her case before the trial Court, the

plaintiff testified and called six other witnesses and

tendered five documents admitted as Exhibits P1, P2, P3,

P4 and P5. The basis of the plaintiff's claim over the land in

dispute was anchored on the fact that her grandfather

Emakoji Ogo disvirgined the large expanse of farm land

called Oko

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Ogbaikeke or Ogbayikeke in Anyigba, Kogi State. After the

death of Emakoji Ogo (grandfather of the plaintiff) the

original owner of the farm land, the land devolved unto her

father Idi Emakoji.

The plaintiff contended that her father Idi Emakoji

allocated the land to different persons including the

grandfather of the defendant/appellant, Ohimogbo, on the

condition for payment of yearly tribute. The land that was

allocated to Ohimogbo, the father of the appellant is the

portion that is the subject of litigation in this case.

Ohimogbo was paying four tins of red oil twice yearly.

Plaintiff maintained that Ohimogbo kept to the terms of the

allocation, by paying the tribute until his demise. It was

also the case of the plaintiff/respondent that after the death

of Ohimogbo, Alfa, the son of Ohimogbo and the father of

the appellant continued to pay tribute of four tins of red oil

to the plaintiff/respondent's father till his death. After the

defendant/appellant took over the land upon the demise of

his father, he paid tribute twice, thereafter he stopped and

started selling part of the land to people, hence this suit.

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Appellant denied the respondent's claims and in his

defence testified and called four other witnesses. His

defence was to the effect that the land in dispute was

originally one of the three farm lands that were disvirgined

and owned by his grandfather Ohimogbo. He stated that

Ohimogbo had three sons namely Umoru Ohimogbo, Isah

Ohimogbo and Alfa Ohimogbo. After the death of

Ohimogbo, the land in dispute together with other existing

farm lands situate at Okoiji Ate, close to M & G along

Anyigba Idah road and the one called Oko Agbeji all owned

by Ohimogbo devolved unto Umoru Ohimogbo being the

first child. After the death of Umoru Ohimogho, the three

farm lands devolved on Isah Ohimogbo. Alfa Ohimogbo

(appellant's father) died before the death of Umoru. While

he was alive he (Alfa) planted economic trees such as

orange trees, cashew trees, okro tree, palm tree, Egili tree

and stumps of ugba tree on the land in dispute. With the

devolution of the three farm lands on Isah Ohimogbo after

the demise of Umoru, Isa decided to divide all the lands

among the children of Umoru and Alfa. Appellant alleged

that the land which his father planted economic trees is the

land in dispute, and is the same

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land that was given to him by Isah Ohimogbo. While the

remaining two other lands were shared between Isah

Ohimogbo and the children of Umoru. Appellant denied

neither Ohimogho nor himself paid tribute to the plaintiff's

family. He prayed the trial Court to dismiss the plaintiff's

case.

On the application of the plaintiff's counsel, the trial Court

visited the locus in quo on 2nd October, 2013. All the

parties were present at the locus in quo, wherein, parties,

witnesses again testified and the court adjourned for

written addresses. Counsel for the parties filed and

exchanged their final written addresses which were

adopted in Court. On 4th September, 2014 the learned trial

Court judges entered judgment in favour of the

plaintiff/respondent in following words:

"Accordingly, the case of the plaintiff succeeds. The

Land by name Ogbaikeke along Anyigba - Idah road

and in particular, the land in dispute which is

bounded by the road to the University which passes

the front of one Wada Ejiga on the north, Oando on

the south, Anyigba ldah road on the west and the

plaintiff herself on the east is hereby declared to the

plaintiff."

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Dissatisfied with the decision of the trial Court, appellant

filed two grounds of appeal before the lower Court on 5th

September, 2014. However, on 30th September, 2014

appellant filed additional eight grounds of appeal. Parties

filed and exchanged their written addresses before the

lower Court and adopted same on 16th March, 2016. After

considering parties argument, the learned judges of the

lower Court dismissed the appellant's appeal as lacking in

merit and affirmed the judgment of the Upper Area Court.

Dissatisfied further with the decision of the lower Court,

appellant applied for leave of the lower Court to appeal

against its decision. On 20th June, 2016 the lower Court

granted leave to appeal. Pursuant to the said leave granted

to the appellant, a notice of appeal containing six grounds

of appeal was filed on 21st June, 2016 on behalf of the

Appellant. The Appellant sought for the relief for an order

to set aside the judgment of Kogi State High Court sitting

on appeal which affirmed the decision of the trial Court,

allow this appeal and dismiss respondent's case in its

entirety as devoid of merit.

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Upon compiling and transmitting the record of appeal to

the Court, parties filed and exchanged their briefs of

argument in accordance with the rules of Court. The

Appellant's brief of argument was settled by E. A. Haruna

Esq., and is dated 11th October, 2017 and filed on 13th

October, 2017. The Respondent's brief of argument was

settled by Dr. Benjamin Ogwo, Esq., and is dated 9th April,

2018 and deemed filed on 17th September, 2018.

The appeal was heard on 17th September, 2018. Learned

Appellant's counsel E. A. Haruna Esq., adopted the

Appellant's brief of argument and urged the Court to allow

the appeal, set aside the decision of the lower Court and

enter an order dismissing respondent's claim before the

trial Court. For his part, learned counsel for the respondent

Dr. Benjamin Ogwo adopted the respondent's brief of

argument and urged the Court to dismiss the appeal as

lacking in merit.

From the Appellant's six grounds of appeal, his learned

counsel distilled four issues for determination to wit:

1. "Was the lower Court right in its application of

Section 232 of the Evidence Act to bar the invocation

of the legal consequence of the respondent projecting

two competing histories of her ownership of

Ogbaikeke land on

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her claim before the trial Court? Distilled from

ground 3 of the notice of appeal of 21st June, 2016.

2. Was the lower Court right in affirming the decision

of the trial Court that the respondent proved her case

on the basis of traditional evidence? Distilled from

ground 4 of the Notice of Appeal of 21st June, 2016.

3. Was the lower Court right to have decided that the

identity of the land disputed by the parties was not an

issue before the trial Court even when the

respondent, under cross examination, could not

identify the land? Distilled from ground 2 of the

notice of appeal of 21st June, 2016.

4. Was the lower Court right to have decided that the

wrong use to which the trial Court put the evidence

adduced in Exhibit P5 did not occasion any

miscarriage of Justice? Distilled from ground 7, 5 and

6 of the Notice of Appeal of 21st June, 2016."

The Respondent for his part also submitted four issues for

determination of this appeal to wit:

1. Whether the Respondent projected two competing

traditional histories of her ownership of the land in

dispute? Ground 3 of the Notice of Appeal.

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2. Whether the lower Court was right when it affirmed

the decision of the trial Upper Area Court that the

Respondent proved her case. Ground 4 of the notice

of appeal'

3. Whether the lower Court was right in agreeing with

the trial Upper Area Court that the identity of the

land in dispute was not in issue. Ground 2 of the

notice of appeal.

4. Whether the lower Court was right in holding that

the trial Upper Area Court’s consideration of Exhibit

P5 did not occasion a miscarriage of justice. Ground

1, 5 and 6 of the notice of appeal.

A careful reading of the issues formulated by the

parties, the two sets of issues are similar in all ramification

and to my view any set of the issues adopted will

conveniently determine the crux of this appeal. I will adopt

the respondent’s issues for being more Apt and precise as

the ones calling the determination of this appeal. However,

in doing so, issues one, two and four will be considered

together while issue three will be treated separately.

ISSUES ONE, TWO AND FOUR

In arguing these issues as reproduced supra, learned

counsel for the Appellant submitted that the respondent

projected two competing histories of her ownership of

the land in dispute.

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The first projection was that respondent's oral evidence

before the trial Court on page 37 of the record of appeal

and the second projection is the respondent's Exhibit P3.

He stated that while in the respondent oral testimony, she

testified that Emakoji Ogo was the original owner of the

land in dispute, in Exhibit P3, the original owner of the land

was stated as one Iyidi Omokoji. Learned counsel submits

that where a party projects two competing histories of his

ownership in support of his claim, he has to fail on the case

he set out to make. If he is the plaintiff, his claim must be

dismissed. Reliance is placed on the case of Ohiaeri Vs

Akabeze (1992) 2 SCNJ (part 1) 76 at 88.

It was the contention of the learned counsel that the

reliance on Section 232 of the Evidence Act by the trial

Court on the need that the appellant or his counsel ought to

have cross examined the respondent on her oral evidence

that the original owner of the land in dispute was Emakoji

Ogo by using Exhibit P3 in which Iyidi Omokoji was stated

to be the original owner of the land is contrary to the

import and purport of Section 232 of the Evidence Act.

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Learned counsel contended that Section 232 of the

Evidence Act is applicable only where the person cross

examining a witness seek to contradict the witness by

producing his previous statement or evidence in writing

which is directly in conflict with his oral evidence in Court

on the same point and in the same proceeding. He submits

that since Exhibit P3 was not so tendered in evidence,

appellant or his counsel cannot be held to have failed to

take advantage of Section 232 of the Evidence Act as

erroneously held by the lower Court. Counsel argued that it

was not the business or duty of appellant's counsel to assist

the respondent to clarify the projection of two competing

histories of her ownership of the land in dispute. He

submits that any attempt of the appellant's counsel to add

to Exhibit P3 would violate the clear provision of Section

128(1) of the Evidence Act. On the interpretation of this

Section, counsel referred to the case of Ojoh Vs Kamalu

(2005) 18 NWLR (parrt 958) 523 at page 580

paragraphs C - D where Onnoghen JSC (as he then was)

held that it is the law that oral evidence is inadmissible to

add to or subtract from or contradict the content of

a document.

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Counsel further referred to the cases of Larmie Vs D. P.

M. Ltd (2005) 18 NWLR (part 958) 438 at

470 paragraphs A - D; Ezemba Vs lbeneme (2004) 7

SCNJ 136 at page 150; Adetoro Vs U.B.N Plc (2008)

13 NWLR (part 1104) 235 at page 277 paragraphs B -

E and Christaben Group Ltd Vs Oni (2008) 11 NWLR

(part 1097) 84 at page 111 paragraphs F - H.

In respect of the question whether the respondent proved

her case on the basis of traditional evidence, learned

counsel submitted that in deciding this case in favour of the

respondent, the lower Court misconceived the ratio in the

case of Makinde Vs Akinwale (2000) 1 SCNJ 100 at

page 110 in justifying the discrepancy between

respondent's viva voce evidence and Exhibit P3 regarding

the original owner(s) of Ogbaikeke land. He stated that in

Makinde Vs Akinwale (supra), the plaintiffs and their

witnesses (except PW2) gave evidence that their ancestor

was Odede who begat Aso. However, PW2 in his evidence

stated that Aso was the father of Odede. The Supreme

Court stated that the question whether Odede begat Aso or

vice versa can be accommodated within the lapses that are

not unusual in traditional history, where

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there is absence of written records and parties depend in

oral accounts passed from generation to generation. The

contradiction was held not be material to have vitiated the

evidence of traditional history given by the plaintiffs.

Further, counsel referred to the ratio in the said Supreme

Court's decision that the case perhaps would have been

different if PW2 did not mention Aso or Odede but other

names entirely.

It was submitted by the learned counsel that the name of

the original owner of Ogbaikeke land chorused by the

respondent and some of her witnesses in their testimonies

before the trial Court is Emakoji Ogo. He stated the name

given by the respondent in Exhibit P3 is completely

different person as the original owner of Ogbaikeke land.

He submits that this lapse or contradiction cannot be

regarded as immaterial considering the nature of

traditional history as elucidated by the Supreme Court

in Makinde vs Akinwale (supra) 101 at page 110.

It was further argued that the judgment in Exhibit P5

clearly, shows that the respondent and her witnesses lied

when they testified that Emakoji Ogo alone was the original

owner of ogbaikeke land.

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He submits that the decision of the lower Court that the

respondent proved her case on the basis of traditional

evidence cannot be sustained in the face of the decision in

Exhibit P5 as this finding of the trial Court has occasioned

miscarriage of justice on the appellant. Reliance was placed

on the case of Adebayo Vs Attorney General of Ogun

State (2008) 7 NWLR (part 1085) 201 at 214

paragraphs F - G where the Court held that to reach the

conclusion that miscarriage of justice has taken place does

not require a finding that different result necessarily would

have been reached in the proceeding said to be affected by

the miscarriage. It is not enough if what is done is not

justice according to law. Reliance is further placed on the

case of Obim Vs Achuk (2005) 6 NWLR (part 922) 594

at page 621-622 paragraphs G - B and Ojo Vs Anibire

(2004) 10 NWLR (Part 882) 571 at page 583. On the

meaning of miscarriage of justice counsel referred to the

case of Larmie vs V. D.P.M.S. Ltd (supra) at page 463

paragraphs E - H and Nwadike Vs A.S.L.G (2008) 16

NWLR (part1112) 203 at page 221 - 222 Paragraphs F

- A.

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It was the argument of the learned counsel that the finding

of the lower court that:

"It seems clear to us therefore that in coming to the

conclusion that the land subject matter of Exhibit P5

is the same with the land in dispute, the trial Court

relied on the evidence of plaintiff in Exhibit PS…. we

are therefore in agreement with the appellant's

counsel that the trial Court was wrong…. in the use to

which it put the evidence in Exhibit P5."

Was against the law as restated in the case of Durosaro Vs

Ayorinde (2005) 8 NWLR (part 927) 407 at page 426

paragraphs F - G and Sodipo Vs Ogidan (2008) 4

NWLR (part 1077) 342 at page 369 paragraphs F - H

that it is not permissible to treat evidence in previous

proceedings as one of truth. It was submitted that the

failure of the lower Court to consider the effect of the

violation of this principle of law by the trial Court by

erroneously resorting to the provisions of Section 251 of

the Evidence Act to hold that the violation did not impact

on the decision of the trial Court.

It was further contended that the trial Court ought not rely

on the evidence in Exhibit P5 to completely ignore the

evidence of DW2 on page 59 - 61 of the record of appeal,

which evidence was

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supported by the evidence of the appellant. Counsel

submits that any doubt about the fact that the family of

DW2 was originally the appellant's boundary neighbour to

the north and west ought to have been laid to rest when

DW2 pointed out the house of his wife close to the filling

station of PW2 at the locus in quo and PW2 confirmed in his

evidence that the land in which his filling station is located

was allocated to him by government. Learned counsel

submits further that the unwarranted observation and the

findings of the trial on page 143 of the record of appeal

that at the locus in quo DW1 and DW2 are not boundary

neighbours to the land in dispute despite unchallenged and

uncontroverted evidence by DW2 have no support in the

evidence in record. He referred to the case of Obim Vs

Achuk (supra) at page 627 - 628 paragraphs H - D.

However, learned counsel conceded that the finding of the

trial Court was partly informed by the extensive use to

which the trial Court put the evidence adduced in Exhibit

P5 to reach its conclusion that the same Ogbaikeke land in

dispute in Exhibit P5 is the land in dispute in this case.

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Counsel urged the Court to resolve these issues in favour of

the appellant and hold that not only did the extensive use to

which the trial Court put the evidence in Exhibit P5 violate

the law but significantly influenced its decision against the

appellant. He further urged the Court to allow this appeal

and enter an order dismissing respondent's claim.

Learned respondent's counsel submitted that the evidence

of the respondent when she testified that "the land belongs

to her father Idi Emakoji. The land belongs to Emakogi Ogo

Originally. He is the father of ldih. It was Emakoji Ogo that

disvirgined the land .... After the death of Idih Emakoji, I

am now on the land using because I am the daughter of

Idih I am the only child of Idih that is alive now", there is no

any conflicting or competing evidence of proof of title of

ownership or the Respondent to this land proffered either

in evidence in Chief or under cross - examination before the

trial Upper Area Court.

Learned counsel submitted that the respondent tendered

Exhibit P3 to support her oral evidence. He contends that

the failure or neglect of the appellant to contradict the

respondent on the names or identities of the land in

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dispute is an admission of the evidence of respondent to the

effect that Exhibit P3 supports the traditional history of the

respondent. Reliance was placed on the case of FBN Plc

Vs M.O. Nwadialu & Son Ltd 2016 18 NWIR (part

1543) at 34 - 35 paragraphs G - J. He submits that the

lower Court was in order, in relying on Section 232 of the

Evidence Act, 2011 to the extent that both oral evidence in

open Court as well as Exhibit P3 corroborating same were

in order in the absence of any cross - examination to

discredit the names. It was further the contention of the

counsel that the reliance of the appellant on the case of

Ohiaeri Vs Akabeze (supra) does not avail the Appellant

as the facts in Ohiaeri Vs Akabeze are not on all fours

with the facts of this present case with respect to the

procedural steps expected of the appellant who did not

contradict the respondent to bring out two conflicting root

of title whatsoever.

It was further argued that Section 128(1) of the Evidence

Act and the cases of Ojoh Vs Kamalu (supra), Larmie

Vs D.P.M.S Ltd (supra), Ezemba Vs lbeneme (supra);

Adetoro Vs U.B.N Plc (supra) and Christaben Group

Ltd Vs Oni (supra) cited and referred

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to by the Appellant are of no consequence to the instant

case, the fact that the issue of raising or proffering two

competing roots of title cannot be seen from the evidence

of the respondent both in Chief and under cross

examination.

In response to the appellant's argument that the lower

Court misconceived the Supreme Court's decision in

Makinde Vs Akinwale (supra) in finding that the

respondent proved her case on the basis of traditional

evidence, learned counsel submitted that the lower Court

was right in holding that the Respondent proved her case

thereby affirming the decision of the trial Upper Area

Court. It was stated that the respondent in her traditional

evidence testified and traced her root of title to Emakoji

oga, counsel added that the evidence of the respondent was

supported by PW5 and PW6 and boundary neighbours and

beneficiaries of her acts of ownership. Counsel further

maintained that the respondent supported her traditional

evidence with documents Exhibit P3 and P5. He argued

that Exhibit P5 was admitted without objection and there

was no cross-examination of the respondent by the

appellant's counsel on Exhibit p5.

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It was submitted that the failure of the Appellant to cross-

examine the Respondent on Exhibit P5 at the trial Court is

an admission of what the Respondent testified in respect of

Exhibit P5. Counsel referred to FBN Plc vs Nwadialu

(supra) page 1 at 35 paragraphs G - D.

It was the submission of the learned counsel that the trial

Court consideration of Exhibit P5 did not occasion any

miscarriage of justice and the lower Court was right in

holding that the trial Court did not rely on Exhibit P5 to

award the land in dispute to the respondent. It was

reiterated that the holding of the lower Court is impeccable

as it is obvious that the trial Court's consideration of

Exhibit P5 was in respect of confirming that the identity of

the land in dispute in this case is the same with that

disputed in Exhibit P5 which did not occasion miscarriage

of justice whatsoever. He submits that the cases of

Durosaro Vs Ayorinde (supra) and Sodipo Vs Ogidan

(supra) referred to by the Appellant's counsel are of no

moment.

Learned counsel submitted that it is not every error

committed by a trial Court that leads to the reversal of a

judgment by the appeal Court, unless such error is

19

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manifestly demonstrated to have occasioned a miscarriage

of justice. He referred to the case of Faleye Vs Dada

(2016) 15 NWLR (part 1534) 80 at 107 paragraphs E -

F. Counsel contended that in the instant case no injustice

had been occasioned by the consideration of Exhibit P5.

In response to the appellant's submission that the trial

Court relied on the evidence in Exhibit P5 to ignore the

unchallenged and uncontroverted evidence of DW2, which

formed the basis of giving judgment in favour of the

respondent, counsel argued that the judgment of the trial

Court was entirely and essentially based on the evidence

produced by the respondent and her witnesses before the

trial Court and not Exhibit p5 whatsoever. Counsel further

submits that the lower Court's reliance on Section 232 and

251 of the Evidence Act, 2011 has not occasioned any

miscarriage of justice. In concluding, learned counsel urged

the Court to dismiss the appeal as lacking in merit in all

fronts.

It is settled law that traditional history is based on history

extending beyond human memory. It is narrated by oral

evidence handed down from generation to generation. If it

is in respect of ownership of

20

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land, the relevant family ancestry or community heads, as

the case may be, through whom the land has devolved must

be pleaded and evidence clearly led in support. See Davies

Vs Ajibowa (1968) NMLR 92; Owoade Vs Omitola

(1988) NWLR (part 77) 413 at 424 - 425.

The plaintiff/respondent in presenting her case before the

trial Court relied on traditional evidence to the effect that

the land in dispute was originally founded by Emakoji Oga

and after his death, the land devolved to Idih Emakoji, the

respondent's father and after the death of the father, the

land devolved to the respondent. See page 32 of the record.

The evidence of PW5 on page 25 - 26 and the evidence of

PW6 supported the evidence of the respondent. Though the

respondent succeeded in presenting her oral evidence of

traditional history, however, the tendering of Exhibit P3 to

further support her claim gave the appellant counsel

ground to contend that the respondent projected two

competing traditional histories.

The evidence of the respondent is to the effect that her

grandfather Emakoji Oko disvigined the land, then upon his

death it devolved on her father Idih Emakoji who also upon

21

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his demised it was inherited by the Respondent. Exhibit P3,

the Deed of Ownership stated Iyidi Omokoji who was

described as the father of the Respondent as the original

owner who transferred the land to the Respondent. The

story apparently is along the same line, as the devolution

history of the land devolves around the predecessors of the

Respondent. See Makinde Vs Akinwale (supra).

Furthermore it has to be pointed out that the appellant

never deemed it necessary to cross examine the

Respondent on the so called two competing traditional

histories. The effect of failure to cross examine a witness on

a particular matter is a tacit acceptance of the truth of the

evidence of the witness. See Gaji Vs Paye (2003) 8

NWLR (part 823) 583. The contention that the

respondent projected two competing traditional histories

cannot stand.

In a claim for declaration of title to land, it is the law that

title to land can be proved in five ways, that is:

1. By traditional evidence;

2. By production of documents of title which are duly

authenticated;

3. By acts of selling, leasing, renting out all or part of the

land or farming on it or in a Portion of it;

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4. By acts of long possession and enjoyment of the land;

and

5. By proof of possession of connected or adjacent land in

circumstances rendering it probable that the owner of such

connected or adjacent land would, in addition, be the

owner of the land in dispute. See Idundun Vs Okumagba

(1975) 9 - 10 SC 227 at 246 - 250; Morenikeji & ors Vs

Adegbosin & ors (2003) LPELR 1911 (SC).

In instant case, in proving her case, the respondent relied

on the traditional evidence. It is trite that a party who is

relying on traditional history must specifically plead and

prove the following before the trial Court:

a) Who founded the land?

b) In what manner was the land founded;

c) The names and particulars of successive owners through

whom he claims.

See Akinloye Vs Eyilola (1968) NWLR 97; Olujinle Vs

Adeagbo (1988) 2 NWLR (part 75) 238; Lawal Vs

Olufonobi (1996) 12 SCNJ 376 and Nruamah & Ors Vs

Ebuzoeme & Ors (2013) LPELR (19771) (SC).

The respondent's evidence on page 37 of the record proved

that the land in dispute was founded by Emakoji Ogo. PW6

also on page 31 of the record of appeal supported the

respondent's evidence that

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Emakoji Ogo disvirgined the land. The evidence of PW5 on

page 25 of record of appeal was also to the effect that the

land subject of dispute was disvirgined by Emakoji Ogo.

On the requirement of the manner how the land was

founded, respondent testified at the trial Court that when

Emakoji Ogo disvirgined the land, he used to farm on the

land. See page 37 of the record. PW5 in this regard also

testified that Emakoji used the land for farming. See page

25 of the record. In the same vein, PW6 also testified that

Emakoji Ogo disvirgined the land. He farmed on the land.

The third requirement is the names and particulars of

successive owners through whom the respondent claims. In

this regard, the evidence of the respondent, PW5 and PW6

are very instructive. On page 37 respondent testified that:

"The land belongs to Emakoji Ogo originally ... After

his death, Idi Emakoji took over the land idi Emakoji

is no longer alive, After the death of ldi Emakoji, I am

now on the land using because I am the daughter of

ldi ..."

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PW5 also put it succinctly the same way as the evidence of

the respondent as follows:

"The land subject of dispute was disvirgined by

Emakoji Ogo ... Idi is the son of Emakoji Ogo and the

plaintiff is the daughter of Idi. Emakoii Ogo used the

land to farm. Emakoji Ogo is no longer alife. After his

death, Idi took over the use of the land. Idi is no

longer a life. After the death of ldi Attah took over the

land ..." See page 25 of the record of appeal.

The evidence of PW6 was in the same line with the

evidence of the respondent and PW5 on the names and

particulars of successive owners through which the

respondent claimed the land in dispute. PW6 testified as

follows:

"Emakoji Ogo disvirgined the land.... After the death

of Emakoji, Idi took over the land. Idi is no Ionger

alife. After the death of ldi, the plaintiff took over the

land."

The law is settled that the plaintiff who relied on traditional

evidence must prove his title to the land and this he has to

do by tracing title to his ancestors. See Ogbonna & Anor

Vs Jumbo & Ors (2015) LPELR 24378 (CA). In the

instant case, the plaintiff/respondent traced title to the land

in dispute to her ancestors, her evidence and that of her

witnesses was consistent and was able to link the plaintiff

25

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with the traditional history relied upon.

It is trite that once the traditional evidence is found to be

conclusive and cogent, there would be no need whatsoever

to require further proof. See Akunyili Vs Ejidike (1996) 5

NWLR (part 449) 351 at 4l7; Balogun Vs Akanji

(1988) 1 NWLR (part 70) 301. In Alikor & Ors Vs

Ogwo & Ors (2010) 5 NWLR (part 1187) page 281 the

Court held that:

"I agree with the respondent counsel that since the

respondents, as claimants to the right of occupancy

based on traditional history, have successfully

discharged the onus of proof of that root of title,

there is no further need for them to lead evidence

proving acts of possession or any other mode of

proving title to the land in disputed land. See

Balogun Vs Akanji (1988) 7 NWLR (part 70) 301 at

322..."

In the instant case, the appellant made heavy weather that

the judgment of both the trial Court and the lower Court be

set aside on the contention that the trial Court relied on

Exhibit P3 and P5 to declare title in favour of the

respondent. Exhibit P5 is a record of proceedings of Grade

1 Area Court Anyigba between Alhaji Shaibu Etu Vs

Attah Idih (Respondent) & 2 Ors in suit No.

CV/12/2002.

26

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As borne out of the record of appeal, particularly on pages

130 - 135 the trial Court used Exhibit P5 to determine

whether or not the subject matter of Exhibit P5 is

connected to the land currently in dispute. As it has been

held in a plethora of cases that Exhibit P5 being a record

previous proceeding can only be used for the purposes of

cross - examination to contradict the oral evidence of a

witness who testified in the said previous proceeding in a

subsequent proceeding. See Salisu & Ors Vs Abubakar &

Ors (2014) LPELR 23075 (CA). In the instant case,

Exhibit P5 was not used by the appellant to contradict the

Respondent or any witness and it is also clear that the

decision of both the trial Court and the lower Court was not

based on the said exhibit. The approach adopted by the

trial Court to determine whether or not the subject matter

of Exhibit P5 is connected to the land in dispute was

against the settled principle of the law stated in Salisu &

Ors Vs Abubakar (supra). This approach, however, will

not affect the decision that the respondent had proved her

case based on traditional evidence.

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Moreso as the trial Court never relied on Exhibit P5 to

grant title to the Respondent, it has to be restated that it is

not every error that leads to a reversal of a judgment on

appeal, except where it is demonstrated that such error has

occasioned a Miscarriage of Justice. See Faleye Vs Dada

(2016) NWLR (part 1534) 80 at 107. In the same vein,

no miscarriage of justice was also occasioned on the

appellant by the decision that the respondent proved her

case over the land in dispute.

The defendant/appellant, on the other hand, in an attempt

to establish his claim to the land in dispute also relied on

traditional history. In his evidence before the Upper Area

Court he testified that the land in dispute was originally

disvirgined by his grandfather Ohimogbo. After his death

the land devolved to Umoru Ohimigbo being the first child.

His father Alfa was one of the children of Ohimigbo. On the

death of Umoru, the land devolved to another child of

Ohimigbo, who later distributed the lands owned by

Ohimigbo to the children of Umoru and Alfa. Appellant

alleged that the land in dispute is the land given to the

children of Alfa (his father) in which he assumed control of

the land being the eldest. See pages 72 - 73 of the record of

appeal.

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The lower Court properly addressed the issue raised by the

appellant as to his witnesses and disregarding evidence by

the trial Court. It is correct law that evaluation of evidence

and ascription of probative value to same is the primary

duty of the trial Court. Where this is properly done an

appellate Court has no reason to interfere, except where

the trial Court failed to take advantage of the opportunity it

had of seeing and hearing the witnesses. See Sagay Vs

Sajere (2000) 2 NSCQR (part 1) 345 and Alli Vs

Alesinloye (2000) 2 NSCQR (part 1) 297.

The stand taken by the lower Court on the complaint of the

appellant as to his witnesses cannot be faulted. It is the law

that where a plaintiff as in the instant case had established

his title to the land in dispute directly by traditional history

as pleaded by him, there will be no need for the Court to

dabble into the rule in Kojo Vs Bonsie to draw inference to

establish that which had already been directly prove. See

Nwabuoku Vs Onwordi (2002) 3 NWLR (part 755)

558, Balogun Vs Akanji (1988) 1 NWLR (part 70) 310.

29

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In view of the foregoing and all that has been said in the

resolutions of these issues, I resolve issues one, two and

four against the appellant and in favour of the respondent.

ISSUE THREE

"Whether the lower Court was right in agreeing with

the trial Upper Area Court that the identity of the

land in dispute was not in issue."

In arguing this issue, learned counsel for the Appellant

submits that the primary duty of a plaintiff in an action for

declaration of title to land is to identify the land to which

his claim relates with a degree of precision and certainty

the test being whether a surveyor can from the record of

proceedings produce a plan showing accurately the piece

or parcel of land to which the decree of title has been

given. He referred to the cases of Adesanya Vs Aderonmu

(2005) 5 SCNJ 242 at 257, Auta Vs Ibe (2003) 7 SCNJ

159 at page 169; Temile Vs Awani (2001) 6 SCNJ 190

at page 212; Agbeje Vs Ajibola (2002) 1 SCNJ 64 at

page 79; Okochi Vs Animkwoi (2003) 2 SCNJ 260 at

page 270 and Owhonda Vs Ekpechi (2003) 9 SCNJ 2 at

page 18. Learned counsel submits that where both parties

are familiar with or know the land in dispute, neither party

will be allowed to place a clog in the wheel of

30

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justice by mischievously raising the issue of identity to

becloud what is otherwise a piece of land that is well

known to the parties. He referred to the case of Odofin vs

Oni (2001) 1 SCNJ 130 at page 144.

It was contended that where proceedings are conducted

without pleadings as in the instant case, the identity of the

land in dispute can be put in issue by the defendant either

through the cross-examination of the adversary and his

witnesses or in his own testimony. He relied on the case of

Ilona Vs Idakwo (2003) 5 SCNI 330 at page 352.

Learned counsel submits that by the appellant's evidence

on pages 73, 85 and 86 of the record of appeal and the

respondent's evidence on pages 53 and 84 of the record of

appeal, the identity of the land has been put in issue. He

contended that the appellant's admission under cross-

examination that he knows the land in dispute must be

taken in the context of his evidence in which he identified

the land he stated devolved on him from his grandfather

with certainty and precision. He further maintained that

the appellant's admission cannot constitute a license for

respondent to show two different portions of land as the

31

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land her father allocated to appellant's grandfather. He

further submits that where the description of the land

shown to the trial Court by the appellant at the locus in quo

is different from the portions shown by the respondent, it

cannot be said that both parties know or are familiar with

the land in dispute. In concluding, counsel urged the, Court

to answer this issue in favour of the appellant and set aside

the decision of the lower Court that the identity of the land

disputed by the parties was not in issue before the trial

Court and enter order dismissing respondent's claim before

the trial Court.

Responding on this issue, learned counsel submits that the

evidence of the respondent on page 37 and that of the

Appellant on page 73 of the record of appeal were in

agreement on the description of the land in dispute except

where the road appellant called Ocholi Ochi road which

was described by the Respondent as kogi State University

to Ojikpadala Ajachagba. He submits that the fact that the

parties called the land or boundaries of the land by

different names does not mean that they are not ad idem on

the identity of the land or boundaries.

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He referred to the case of Fajimi Vs Suberu (2013) 6

WRN 158 at 181 where the Court held that where parties

are clear as to the identity of the land in dispute, the fact

that different names are given to it or the area to it location

cannot affect the case. Reliance is further placed on the

cases of Aromire Vs Awoyemi (1972); All NLR (part 1)

101 and 113; Makanjuola Vs Balogun (1989) 3 NWLR

(part 108) 192 at 204. He reiterated that the evidence of

the parties and their witnesses especially those witnesses

that are boundary neighbours confirmed that the identity

and boundaries of the land in dispute was not in issue

between the parties at the trial Court whatsoever. He

referred to the case of Ajiboye Vs Onigbinde (2014) 39

WRN 102 at 127 - 128. In line with the above authority,

learned counsel argued that the cases of Adesanya Vs

Aderonmu (supra); Auta Vs Ibe (supra); Temile Vs

Awani (supra); Agbeje Vs Ajibola (supra); Okochi Vs

Animkwoi (supra); Owhonda Vs Ekpechi (supra);

Odofin Vs Oni (supra) and ilona Vs Idakwo (supra)

referred to by the Appellant's counsel are of no moment to

the extent that the respondent discharged the duty placed

on her in law as required by those cases.

33

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In concluding, counsel urged the Court to resolve this issue

in favour of the respondent to the extent that the lower

Court was right in agreeing with the trial Upper Area Court

that the identity of the land in dispute was not in issue.

In a claim for declaration of title to land, the starting point

is the identity of land. The identity of the land must be

clearly ascertained. The identity of land would be in issue

only if the defendant in his pleadings disputed either the

area of the land or its location. See Ezendu & Ors Vs

Obiagwu (1986) 2 NWLR (part 21) page 208;

Ayanwale Vs Odusami (2011) LPELR 8143 (SC). The

issue of identity of the land in dispute is so crucial that

where the plaintiff is unable to identify the land he is

claiming, he cannot succeed in the case even if other issues

are decided in his favour. See Ibhafidon Vs Igbinosu

(2001) 20 WRN 132 SC. As indicated earlier, the burden

or onus is always undoubtedly on the plaintiff to show

clearly the area of land to which his claim relates. In giving

the identity of the land, plaintiff/respondent identified the

land as follows:

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"The land has boundary. On the Eastern part of the

Iand the land is bound by a road to the Kogi State

University to Ojikpadala Ajachagba is the boundary

mark. This road formally known as project road. The

road is still there up till today. On the Western part of

the land, the road from Anyigba to ldah which passes

the front of blue house hospital is the boundary

mark. On the Northern part, the land starts from the

post office up to diagnostic hospital. When the post

office was not built, Rubber trees were planted to

mark the boundary neighbour. On the south, the

boundary neighbour is one Sunday Ogbaii. See page 37

- 38 of the record of appeal.

As earlier indicated, the identity of the land in dispute will

be in issue if, and on|y if, the defendant in his statement of

defence and in the instant case his oral evidence before the

trial Court made it one, by disputing either the area or the

size or the location or the features indicated by the plaintiff

in her oral evidence before the trial Court. See Nwogo Vs

Njoku (1990) 3 NWLR (part 140) page 570; Babatola

Vs Adewumi (2011) LPELR 3945 (CA). In this regard,

the defendant/appellant described the land in dispute as

follows:

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"The boundary of the land to the east is Ocholi Ochi

road. The boundary neighbour the family of ldih

(plaintiff). To the west is Anyigba ldah road that

passes through the front of Blue house Hospital. The

boundary neighbour on the west originally is Ogbaiele

family... to the north, the family neighbour is Momoh

Ogbaiele family also. To the south, it is Oando filling

station and Nigeria union of road transport

workers. Originally, we share boundary with Ochiyi

family."

From the above, the appellant's description was the same

with the description given by the respondent, only that

some of the boundaries were described with different

names. The appellant admitted knowing the land in dispute.

The law is settled that where the identity of the land in

dispute is known to the parties, the fact that different

names are given to the land or area where the land is

located is called by different names is not fatal to the case

of the party claiming interest in such land. See Akiti Vs

Oyekunle & Anor (2015) LPELR - 24681 (CA). In

Edjekpo Vs Osia (2007) 8 NWLR (part 1037) 635 at

671 - 572 paragraphs H - B the Supreme Court per

Onnoghen JSC (as he then was) held:

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“…. it is not strange, in fact that is a common feature

in a claim for title to land that parties to the dispute

call the land in dispute by different names, and will

always identify different landmarks as constituting

the boundary features of the land. The Courts have

always seen through the controversies and determine

the real issues in controversy between the parties

which is who is the actual party entitled to be

declared the owner."

In the instant case, the appellant's contention that the

identity of the land in dispute is in issue, fails. The issue

must therefore be resolved against the appellant. Issue

three is hereby resolved against the Appellant and in favour

of the respondent.

Having resolved all the four issues in this appeal against

the appellant, it is crystal clear that the appeal is devoid of

merit, same is hereby dismissed. The judgment of the lower

Court in Appeal No. AYHC/2A/2014 presided over by Hon.

Justice R. O Olorunfemi, E. O. Haruna and A. B. Akogu

delivered on 24th March, 2016 is hereby affirmed. There

will be no order as to costs.

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ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in draft,

the leading judgment of my learned brother Jauro JCA just

delivered. I agree that the appeal lacks merit. I dismiss it

and affirm the judgment of the lower Court in Suit No.

AYHC/ZA/2014 delivered on 24th March, 2016.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft

the judgment just delivered by my learned brother, ADAMU

JAURO JCA. I am in full agreement with the reasoning and

conclusion and orders reached by my learned brother.

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Appearances:

E. A. Haruna, Esq. with him, OluchukwuNnamuah, Esq. and Mrs. H. Igomu ForAppellant(s)

Dr. Benjamin Ogwo with him, Anah JosiahOgbaje, Esq.For Respondent(s)

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(2018) LPELR-46852(CA) · OHIMOGBO v. IDIH CITATION: (2018) LPELR-46852(CA) In the Court of Appeal...

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Transcript of (2018) LPELR-46852(CA) · OHIMOGBO v. IDIH CITATION: (2018) LPELR-46852(CA) In the Court of Appeal...