ORLU V ONYEKA

ORLU V ONYEKA


The Supreme Court

Holden at Abuja

Fri, 28 April 2017


APPEAL NO: SC.243/2007

CITATION NO:


BEFORE THEIR LORDSHIPS

MUSA DATTIJO MUHAMMAD, JSC

EJEMBI EKO, JSC

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

WALTER SAMUEL NKANU ONNOGHEN, CJN


Between

GODPOWER ORLU (ALIAS ALHAJI ABUBAKAR ORLU)

(Appellant)

and

                              CHIEF GODWIN ONYEKA                                                 

(Respondent)


PRONOUNCEMENTS

A. COURT

  1. Duty of court–Duty of court upon reception of evidence from both parties to a suit

“In the circumstance the trial court’s duty, which the lower court rightly found to have been discharged, is to consider the pleadings of both sides and put the lawful evidence led on an imaginary scale and determine whose is weightier.” Per Muhammad JSC

B. EVIDENCE

  1. Unchallenged evidence–Effect of counsel’s non-objection to the reception of evidence by the court

“As rightly observed by the lower court, the appellant who was represented by counsel and did not object to the reception of the documents the plaintiff/respondent’s tendered in support of his claim in evidence cannot now complain that it is wrong of the two courts to have relied on the unchallenged and uncontroverted evidence. The lower court’s reliance on the decisions of this Court in Mainage V. Gwamna (1997) 1 NWLR (Pt 528) and Nigeria Maritime Services Ltd V. Alhaji Betlo Afolabi (1978) 2 SC 79 in this regard is well informed. In Shurumu V. The State 196 LRCN 199 this Court stated the principle more succinctly thus:-

“When a counsel stands by and allows exhibits to sail smoothly through to become evidence without an eyelid, then it becomes obvious that the counsel is comfortable.” Per Muhammad JSC

C. LAND LAW

  1. Ownership–Ways of proving ownership of land

“In the case at hand, the issue in controversy between the parties is the ownership of the land in dispute the five methods by which the law says it may be established being by: (1) Traditional evidence (2) Production of doCcuments of title which are duly authenticated, (3) Acts of ownership, such as selling, leasing, renting, farming etc over a sufficient length of time, numerous and positive enough to warrant the inference of true ownership (4) Acts of long possession and enjoyment of the land and (5) 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. A party may rely on any of the five methods and succeeds on such cogent satisfactory and conclusive evidence to prove his title. See Aikhionbare V. Omoregie (1976) 12 SC 11 and Zacheus Falaye & ors V. Rasheed Dada & ors (2016) LPELR-40297 (SC).” Per Muhammad JSC

  1. Possession– Nature of possession

“Trespass is an infraction against possession. See Aboyeji V. Momoh (1994) 4 NWLR (Pt 341) 646 and Omorhirhi V. Enatevwere (1988) LPELR-2659. The law gives possession to the owner of the land against the whole world.” Per Muhammad JSC

D. PRACTICE AND PROCEDURE

  1. Pleadings–On the need for evidence establishing pleaded facts

“I entirely agree with learned respondent’s counsel that for a party to succeed in his claim, he must not only plead the facts on the basis of which he claims but further lead evidence to establish the facts as pleaded. Pleading, in the absence of evidence to establish the facts averred therein, goes to no issue.” Per Muhammad JSC

  1. Pleadings–Effect of evidence standing at variance with a party’s pleading

“Furthermore, because parties are bound by their pleadings, evidence led which stands at variance with a party’s pleading goes to no issue. Such evidence must be disregarded. The fact that issues are joined in pleadings and not in evidence is ignored at the party’s peril See Elegushi V. Oseni (2005) 14 NWLR (Pt 945) 348, Aremu V. Adetoro (2007) 16 NWLR (Pt 1060) 244 and The Executors of the Estate of Gen. Sani Abacha (deceased) V. Samuel David Eke-Spiff & ors (2009) LPELR-3152 (SC).” Per Muhammad JSC


 E. APPEAL

  1. Concurrent findings of facts– Position of the Supreme court on the concurrent findings of facts by the lower courts

“This Court does not, as a practice, disturb such concurrent findings of fact, unless they are, satisfactorily, shown to be perverse. See BASHAYA V.THE STATE (1998) 4 SC 199; YESUFU v. ADAMA (2010) 5 NWLR (pt.H88) 552 SC. This Court I emphasise, does not lightly depart from concurrent findings of fact. One reason for this is that it does not have the advantage or opportunity of seeing and listening to the witnesses testify. The trial court has that opportunity or advantage. The trial Judge, on facts, is presumed to be skillful and adept.” Eko JSC

  1. Leave to appeal– Position of the Supreme court on appeals on facts and the grant of leave to appeal against such facts

“Although this is the final court of the realm, the Constitution does not intend, from the provisions of Section 233 thereof, that this Court be bothered and burdened by appeals on facts. It is unfortunate that this appeal, on the issues formulated for determination, was able to sneak itself unto the cause list of this Court. It is only when the Supreme Court is as sitting a court of first instance, by virtue of its original jurisdiction conferred by Section 232 of the Constitution, that the jurisdiction to entertain disputes on facts is undoubted. Leave, by dint of Section 233 (3) of the Constitution, is required for appeal on facts. On whether this Court should interfere where issues of facts have been filtered by the High Court and the Court of Appeal, I hereby adopt the dictum of Kayode Eso, JSC, in KALE V. COKER & ORS. (1982) 12 SC (Reprint) 118 –

“The Supreme Court is essentially a Constitutional Court. It is to deal mainly with constitutional matters and important issues of law. For any issue of fact to be brought before the court in its appellate jurisdiction, leave of the – Court of Appeal or – of this Court is required. See Section 213 (3) of the Constitution of the Federal Republic of Nigeria, 1979. It is my considered view that neither the – Court of Appeal nor this Court should give such leave lightly. To my mind the establishment of an intermediate Court of Appeal between the High Court and the Supreme Court is to enable facts to come to rest in that intermediate Court of Appeal. Except there will be a miscarriage of justice, once issue of facts has been filtered by the High Court and the – Court of Appeal this Court will not interfere. Section 233(3) of the extant constitution is in pari materia with S.213(3) of the repealed 1979 Constitution”. Per Eko JSC

F. LAND LAW

  1. Ownership–Ways of proving ownership of land

“Traditional history and production of title documents are, each, one of the five ways of proving title to land. See IDUNDUN V. OKUMAGBA (1976) NMLR 200 at 210; (1976) 10 SC. 227 at 246. Proof of acts of ownership, such as selling, leasing, renting over a sufficient length of time numerous and positive enough to warrant the inference of true ownership is also one of the five methods or ways of proving title to land.” Eko JSC


 G. APPEAL

  1. Concurrent findings of facts– What must be proved by the appellant to discharge concurrent findings of facts by the lower courts

“In order to dislodge the concurrent findings of the two lower courts, the appellant has the onerous task of satisfying this court that the findings are perverse, not supported by the evidence, or that there is an error of law or procedure which has occasioned a miscarriage of justice. See: Lewis Vs U.B.A. PLC (2016) 1 SC (Pt.1) 96 @ 120 – 121; NICON Vs Power & Industrial Eng. Co. Ltd. (1986) 1 NWLR fPt.271) 1: Ibodo Vs Enarofia f1980) 5 -7 SC 42 @ 55; Michael Vs The State (2008) 13 NWLR fPt.1104) 361.” Per Kekere-Ekun

  1. Appeal– On the nature of an appeal

“An appeal is simply a continuation of the case put forward at the court of first instance. It is not an opportunity for a party to make an entirely new case. See: Osuji Vs Ekeocha (2009) 16 NWLR (Pt.1166) 81: Adeqoke Motors Ltd. Vs Adesanva (1989) 3 NWLR (Pt.109) 250.” Per Kekere-Ekun

H. EVIDENCE

  1. Unchallenged evidence– Effect of Unchallenged evidence

“It is well established principle of law that where evidence given by a party to any proceedings have not been challenged or discredited by the opposing party who had the chance to do so, then it is open to the court hearing the matter, to act and rely on such unchallenged or opposed evidence as done by the trial court in this matter. I refer to the Supreme Court decision in ISAAC OMOREGBE v DANIEL LAWANI (1980) 3-4 SC 108; NIGERIA MARITIME SERVICES LTD v ALHAJI BELLO AFOLBI (sic) (1978) 2 SC 79.” Per Kekere-Ekun

I. LAND LAW

  1. Ownership– Effect of defendant claiming ownership of land in an action for trespass

“The law is settled that a claim for trespass to land is generally rooted in exclusive possession. Therefore all that a claimant needs to prove is that he has exclusive possession or that he has the right to exclusive possession of the land. However, where a defendant claims to be the owner of the land, title to the land is put in issue and in order to succeed, the plaintiff must prove a better title. See: Pius Amakor Vs Benedict Obiefuna (1974) 3 SC (Reprint): Oqunleye Vs Oni (1990) 2 NWLR (Pt.135) 745: Omotavo Vs C.S.A. (2010) 16 NWLR (Pt.1218) 1.” Per Kekere-Ekun

  1. Root of title– Effect of registrable instrument

“The law is that once a registrable instrument is duly registered in accordance with the relevant Registration Law, the effect of such registration is that the party registering same acquires a good title until a superior title is produced. See: Oboru Vs R.S.H. & P.D.A. (1997) 9 NWLR (Pt.521) 425 @ 443-444 H – A. This decision of the Court of Appeal was affirmed by this court in Obulor & Anor. Vs Oboro (2001) 8 NWLR (Pt.714) 25. See also Section 48 (1) (a) of the Registration of Titles Law, Cap 114 Vol. VI Laws of Eastern Nigeria 1963 applicable to Rivers State.” Per Kekere-Ekun

  1. Root of title– What must be proved by a party relying on traditional history

“Where a party relies on traditional history to prove his title, he must plead and prove:

  1. Who founded the land.
  2. How the land was founded; and
  3. Particulars of intervening owners.

See: Alii Vs Aleshinlove (2000) 4 SCNJ 264 @ 284-285? Mogaji Vs Cadbury Nig. Ltd. (supra); Elegushi Vs Oseni (2005) 14 NWLR (Pt.945) 348.” Per Kekere-Ekun

J. PRACTICE AND PROCEDURE

  1. Evidence– Duty of a plaintiff to prove his case

“It is also settled that the plaintiff must succeed on the strength of his case and not on the weakness of the defence, if any, except where the weakness of the defendant’s case strengthens the plaintiff’s case. See: Ngene Vs Igbo (2000) 4 NWLR (Pt.651) 131: Onwugbufor Vs Okoye (1996) 1 NWLR (Pt.424) 252: Adesanya Vs Aderonmu (2000) 13 WRN 104 @ 115 lines 10-35.” Per Kekere-Ekun


LEAD JUDGMENT DELIVERED BY MUHAMMAD, JSC


This is an appeal against the decision of the Court of Appeal; Port Harcourt Division, hereinafter referred to as the lower court, dismissing appeal No. CA/PH/16/2002 by the appellant herein and affirming the decision of the Rivers State High Court, hereinafter referred to as the trial court. The Judgment appealed against was delivered on 11th December 2006. The facts of the case that brought about the appeal are recounted at once below.

The respondent as plaintiff took out a writ on 26th day of October 1979 at the trial court against eight persons including the appellant claiming jointly and severally as follows:-

“(1) N10,000.00 general damages for trespass into plaintiffs land known and called Akwodo situate at mile 3, Diobu, Port Harcourt and registered as No. 71 at page 71 in vol. 38 of the lands Registry, Port Harcourt and as shown in plaintiffs plan filed with the statement of claim.

(2) Perpetual injunction restraining the defendants, their servant and agents from further entering or interfering in the plaintiffs said land.”

Parties filed, exchanged, amended their pleadings and the suit went into full trial.

Plaintiff/respondent’s case is that the land in dispute is part of a larger piece of land known and referred to as Akwodo more precisely No. 176/178 Ikwerre Road, Mile 3, Diobu Port Harcourt. Parties by their respective pleadings, paragraphs 3 and 6 of the amended statement of claim and paragraphs 2, 3, and 7 of the amended statement of claim are agreed on the identity and name of the land in dispute.

The plaintiff/respondent testified and called two other witnesses to prove his case. His case is that he became the owner of the land in dispute having purchased the land from, John Nweke and Chukwuma Nwobu, the rightful owners. This was on 25th November 1976. The transaction is evidenced by exhibit TV executed in respondent/plaintiff’s favour. The deed of conveyance, was duly registered as No. 71 at page 71 in volume 38 of the Lands Registry, Port Harcourt.

The plaintiff/respondent asserts that on purchasing the land in dispute he took immediate possession whereupon he had the land surveyed and secured with survey pillars. The plaintiff/respondent, in his pleadings and evidence, insists that his vendors had acquired good title in and over the large piece of land called Akwodo from the Agbirigbe family the native owners through its head Enoch Agbirigbe since 18th March 1958. The transaction is evidenced by an indenture registered as No. 57 at page 57 in volume 103 of the Lands registry at Enugu. Exhibit D, a judgment of a court of competent jurisdiction, the plaintiff/respondent further asserts, remains an unimpugned confirmation of the title of the plaintiff/respondent’s vendors of the land in dispute.

The appellant/defendant, from his pleadings and evidence, claims ownership of the land in dispute through inheritance from his father, Ogbonda Orlu, who in turn inherited the land from his ancestor Ahanonu. It is part of his case that DWI whom he claims to be his tenant has been selling fire wood on the disputed land since 1973. He also has other tenants on the land in dispute from whom he has been collecting rent as well. The Agbirigbe’s family, whom the appellant claims to know, could only have sold the land in dispute to plaintiff/respondent vendors under false pretences. It is his further case that he built the land in dispute in 1972 and put his tenants thereon.

The trial judge, in a well considered judgment dated 17th April 1996, having found that the plaintiff/respondent has established a better title than the defendant, granted him the reliefs he claimed.

Aggrieved by the trial court’s judgment, the 1st defendant/appellant appealed to the court below on an amended notice containing twenty two grounds. The 2nd – 8th defendants chose not to appeal against the trial court’s decision. The lower court heard the appeal and in its judgment delivered on 11th December 2006 dismissed same.

Dissatisfied with the judgment of the lower court, the 1st defendant/appellant has further appealed to this Court vide his notice of appeal filed on 15th February 2007 containing twenty grounds.

In the amended appellant’s brief settled by H. D. D. Uwom Esq, adopted and relied upon as their arguments in the appeal, the following four issues have been formulated for the determination of the appeal:-

“(1) Whether the learned Justices of the Court of Appeal were right to have affirmed the findings/conclusions of the learned trial judge and to have decided that the plaintiff/respondent proved title and trespass over the land in dispute. (Grounds 2, 5, 8, 9,16,17 & 18).

(2) Whether having regard to the pleadings, exhibits, grounds of appeal, issues and evidence in this case, the learned Justices of the Court of Appeal made the right interference and conclusions in their judgment. (Grounds 1, 3, 4, 7, 10, 19 and 20).

(3) Whether the learned Justices of the Court of Appeal were right to have refused, while considering the evidence/exhibits in this case, to take judicial notice of and use the affidavit challenging part of the records which was filed on behalf of the appellant. (Ground 11).

(4) Whether the learned Justices of the Court of Appeal did fully consider and pronounce on/resolve all material issues raised by the appellant before them. (Grounds 6,12, 13, 14 and 15).”

At page 6 of the respondent’s brief, the following four issues have been distilled as having arisen for determination in the appeal:-

“(1) Whether the lower court was right in affirming the decision of the decision of the trial court that the plaintiff/respondent proved a better title to the land in question that the appellant?

(2) Whether the lower court was right in affirming the decision of the trial court that plaintiff/respondent successfully proved his claim for damages for trespass which is based on exclusive possession of the land in dispute?

(3) Whether the court below failed to consider all the issues raised before it by the appellant?

(4) Whether the lower court was right in failing to consider the appellant’s affidavit challenging parts of the record?”

It appears to me that appellant’s 1st, 2nd and 4th issues are similar to respondent’s 1st, 2nd and 3rd issues. Appellant’s 3rd issue is clearly similar to respondent’s 4th issue. It is again glaring that whereas appellant’s 1st issue subsumes his 2nd and 4th issue, respondent’s 1st issue does same vis-a-vis his 2nd and 3rd issues. Put differently, whereas a determination of appellant’s 1st issue would amount to a disposal of his 2nd and 4th issue as well, the determination of respondent’s 1st issue will equally constitute a decision on his 2nd and 3rd issues combined. In this regard, therefore, the two sides stand in breach of the principle this Court repeatedly adhere to which frowns at proliferation of issues. It is indeed needless for any of the parties to this appeal to formulate their other two issues when the resolution of their 1st issue will provide for all the queries the two other issues raise. See Labiyi V. Anrelidea (1992) SCNJ 1 at 2, Chief Emmanuel Eyo Eta & anor V. Elder Chief Okon H.A. Dozie (2013) LPELR-20136 (SC) and G.K.F. Investment Nig Ltd V. Nigeria Telecommunications Pic (2009) 15 NWLR (Pt 1164) 344.

The application of the principle enunciated by this Court inter-aiia in the foregoing cases, given the need for a more informed determination of the appeal, therefore, dictates the consideration of the more lucid 1st and 4th issues formulated by the respondent which issues are intrinsically the same as appellant’s 1st and 3rd issues.

On the 1st issue, learned appellant counsel submits that the lower court in affirming the trial court’s decision that the plaintiff/respondent has proved his title and the fact of trespass over the land in dispute equally relied particularly on exhibits A and E, the title documents between the plaintiff/respondent and his vendors and between the vendors and the original owners of the land. Reliance has also been placed on exhibit B, a disputed survey plan made during the pendency of the instant case. The lower court, it is submitted, drew their inference from the defendant/appellant’s failure to object to the admissibility of the exhibits on their being tendered in evidence at trial. The non objection to the reception of the documents in evidence, it is submitted, led to the lower court’s wrong conclusion that the plaintiff/respondent has proved his title. The court, it is argued, arrived at the wrong inference because of its inability to strike a distinction between the issue of admissibility of the documents and the probative value the law allows to be ascribed to the documents. The mere reception of a document in evidence, it is further contended, neither makes the document outrightly worthy nor of the required probative value. Learned counsel calls in aid Nwabuoku V. Onwordi (2006) ALL FWLR (Pt 331) 1236 at 1242 and Okoko V. Dallolo (2006) ALL FWLR (Pt 336) 201 at 211. Where the two courts below arrive at a wrong conclusion from their examination of a document, learned counsel submits, this Court has the duty, since the issue of credibility is not involved, to interfere by correctly evaluating the documentary evidence and drawing the correct inference. Learned counsel relies inter-alia on Ogbonna V Ad Imo State (1992) 1 NWLR (Pt 220) 647 at 676, Bunge V AG Rivers State (2006) ALL FWLR (Pt 325) 1 at 6-7, Iwuoha V. Nipost (2003) FWLR (Pt. 160) 1535 at 1539 and Gonzee Nig Ltd V NERDC (2005) ALL FWLR (Pt 274) 238 at 239 and insists that this Court interferes.

Further arguing the issue, learned appellant counsel insists that this Court’s interference is a necessity because the lower court lacks the jurisdiction to affirm the trial court’s perverse decision. The trial court’s judgment the lower court affirmed, it is contended, never took into account evidence outside exhibit A, B and E. Even at that, it is contended, the exhibits have unresolved contradictions in and between themselves. Furthermore, beyond the evidence that should inform the findings of the two courts, the pleadings of parties are equally essential in the decision the courts eventually make. The evidence the plaintiff/respondent gave at trial, it is argued, differs from the facts averred to in his pleadings. In the pleadings, it is submitted, the land in dispute the plaintiff/respondent bought from his vendors, as evidenced in exhibit E, was originally owned by the Agbirigbe’s family. Respondent’s evidence at trial however, it is contended, is that the vendors acquired the land from one Enoch Agbirigbe instead. It follows, therefore, that there is a disconnect between the land in exhibits E and A. A decision reached on such evidence that is in conflict with the plaintiff’s pleaded facts cannot stand!

Still on the issue, learned appellant’s counsel submits that both parties admit that exhibit B was made in 1979 during the pendency of the instant suit at the trial court. Plaintiff/respondent, it is contended, failed to call evidence to relate exhibit B to exhibit E to show that the land in dispute as referred to in exhibit B is indeed part of the larger piece of land the plaintiff/respondent’s vendor purchased from its original owners and sold part of it to the plaintiff/respondent. The concurrent findings of the lower court, on the authority inter-alia of Agusiobu V. Okagbue (2001) FWLR (Pt 78) 1162, Adomba V. Odiese (1990) 1 SCNJ 135 at 143 – 145, Alade V. Awu (1975) 4 SC 150 and Obowole V. Williams (1996) 12 SCNJ 415, being perverse, learned counsel submits, deserve not to survive on appeal.

Concluding, learned appellant’s counsel submits that the plaintiff/respondent who is not in possession of the land in dispute and has not established a better title than the appellant is disentitled to succeed in the case. The victory purportedly given to the respondent by the concurrent findings of the two lower courts must be set-aside. This, argues learned counsel, is the import of the decisions in Okoya V. Santilli (1994) 4 SCNJ (Pt 2) 333 at 381 – Anya V. Imo Concorde Hotels Ltd (2003) FWLR (Pt 138) 1306 at 1332 and Bangboye V. Olarewaju (1991) 4 NWLR (Pt 184) 13.

Responding to appellant’s arguments under the 1st issue, learned counsel submits that, ordinarily, since respondent’s claim is for damages for trespass and injunction, proving that he is in exclusive possession of the land in dispute will satisfy the requirement of the land. Appellant’s claim of ownership over the same piece of land however necessitates that for the plaintiff/respondent to succeed he proves a better title than that of the appellant. In doing so, it is submitted, plaintiff/respondent pleaded and proved the registered documents he relied as proof of title. The documents the plaintiff/respondent relied on exhibit A, a deed of between him and his vendors and exhibit E between his vendors and the original owner of the land, as well as exhibit B the survey plan in respect of the land have not been challenged or discredited by the appellant. The trial court’s reliance of these pieces of evidence and the lower court’s affirmation of the reliance, it is argued, cannot be faulted. This fact, learned respondent’s counsel submits, tallies with a trite principle in a long chain of cases he including and not limited to: Isaac Omoregle V. Daniel Lawani (1980) 3 – 4 SC 108, Nigerian Maritime Services Ltd V. Alhaji Bello Afolabi (1978) 2 SC 79, Broad line Enterprises Ltd V. Monterey Maritime Corporation & anor (1999) 9 NWLR (Pt 417) 1 at 27 and Adepoju Odunsi V. Azeez Bamgbala & 3 ors (1995) 1 NWLR (Pt 374) 641.

Most importantly, it is further contended, the legal consequences of the registration of exhibits A and E the plaintiff/respondent’s relied on in proof of his title, is as provided for by Section 48(1) (a) of the Registration of titles Law, Cap 114, Vol. vi, Laws of Eastern Nigeria, 1963 applicable Rivers State where the land in dispute is situate. Both courts are duty bound to give effect, learned counsel submits, to the clear and unambiguous words of the section in the applicable legislation. In support, learned counsel cites: Bronik Motors Ltd & anor V. Wema Bank Ltd (1983) 6 SC 158, Jamal Steel Structures Ltd V. African Continental Bank Ltd (1973) 11 SC 77, Brard of Customs & Excise V. Barau (1982) 10 SC and more particularly Madam Helen Obulor & anor V. Linus Weso Oboro (2001) 8 NWLR (Pt 714) 25.

The effect of registration of plaintiff/respondent’s title deeds which ipso fact to recognises his title, to the exclusion of all others, apart, learned respondent counsel further argues, exhibit E alone, .is sufficient evidence to support plaintiff/respondent’s claim. Reliance is place inter-alia on Idunndu V. Okumagba (1976) 9 – 10 SC, 227 and Aliyu V. Sodipo (1994) 5 NWLR (Pt 342).

All the defects against exhibits A and E the appellant raised in paragraph 5.1 B – E at pages 11 – 19 of his brief, learned respondent’s counsel submits, are misconceived and untenable. The defects, it is argued, were never raised in appellant’s pleadings. The allegations levied against the documents which are criminal in nature, forgery specifically, by Order 25 rule 6 sub rule (1) of the trial court’s rules, learned counsel submits, must be particularly pleaded. Having not pleaded the facts which constitute the allegations the appellant makes, let alone to prove the pleaded facts, learned counsel submits, the allegation must be ignored. The court is referred to Fabunmi V. Abigail Ade Agbe (1985) 1 NWLR (Pt 2) 299 at 319 and Faith Enterprises Ltd V. Bast Nigeria Ltd (2001) 8 NWLR (Pt 714) 242 at 250 to buttress the point that since the appellant neither pleaded nor proved the irregularities he raised against plaintiff/respondent’s root of title cannot do so without leave which he did not seek or obtain to raise the issue at the lower court or even in this Court. Learned counsel relies on Alhaji Latifu Ajuwon & ors V. Madam Alimotu Adeoti (1990) 2 NWLR (Pt 132) 271, Fidelis Kaigama V Alhaji Abba Naninai (1997)3 NWLR (Pt 495) 549 and Samuel Ononuju & anor V. Attorney General, Anambra State & 2 ors (1998) 11 NWLR (Pt 573).

It is the law, learned respondent’s counsel further submits, that, to succeed in his claim for determination of title to land, the plaintiff/respondent must establish the identity of the land. In the case at hand, outside exhibit B, the survey plan, which appellant’s counsel asserts has been made during the pendency of the instant suit, learned plaintiff/respondent’s counsel submits, exhibit E contains a plan that describes the land and defines its boundaries. The appellant by paragraph 4 of his amended statement of defence clearly shows that he knew the land in dispute. Where the identity of the land in dispute ceases to be in issue between the parties, learned plaintiff/respondent’s counsel submits, proof of the identity of the land by the plaintiff ceases also to be necessary.

Concluding, learned respondent’s counsel concludes that having established their case on the preponderance of evidence the two courts below are right to have found for the respondent. Their concurrent findings drawn from the evidence on record, cannot be perverse. On the whole, learned counsel urges the resolution of the issue against the appellant and the dismissal of the appeal.

My lords, in my firm and considered view, notwithstanding the intimidating sizes of the briefs of arguments of parties in this appeal, a sixty page amended appellant’s brief, sixty three page appellant’s reply brief and eighty five page respondent’s brief, the issue this appeal raises is a very narrow one and it is this: are both courts below right in their findings that the plaintiff/respondent has proved his title to the land in dispute and, resulting from that, entitled to the reliefs he claimed and was obliged?

I entirely agree with learned respondent’s counsel that for a party to succeed in his claim, he must not only plead the facts on the basis of which he claims but further lead evidence to establish the facts as pleaded. Pleading, in the absence of evidence to establish the facts averred therein, goes to no issue. Furthermore, because parties are bound by their pleadings, evidence led which stands at variance with a party’s pleading goes to no issue. Such evidence must be disregarded. The fact that issues are joined in pleadings and not in evidence is ignored at the party’s peril See Elegushi V. Oseni (2005) 14 NWLR (Pt 945) 348, Aremu V. Adetoro (2007) 16 NWLR (Pt 1060) 244 and The Executors of the Estate of Gen. Sani Abacha (deceased) V. Samuel David Eke-Spiff & ors (2009) LPELR-3152 (SC).

In the case at hand, the issue in controversy between the parties is the ownership of the land in dispute the five methods by which the law says it may be established being by: (1) Traditional evidence (2) Production of documents of title which are duly authenticated, (3) Acts of ownership, such as selling, leasing, renting, farming etc over a sufficient length of time, numerous and positive enough to warrant the inference of true ownership (4) Acts of long possession and enjoyment of the land and (5) 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. A party may rely on any of the five methods and succeeds on such cogent satisfactory and conclusive evidence to prove his title. See Aikhionbare V. Omoregie (1976) 12 SC 11 and Zacheus Falaye & ors V. Rasheed Dada & ors (2016) LPELR-40297 (SC).

The respondent as plaintiff relies on documents, exhibits A and E, in establishing his claim. The two have been duly registered in accordance with Section 48 of the Registration of Title Land applicable to Rivers State where the land is situate. The appellant, on the other hand, relies on traditional history, having inherited the land in dispute from his father who, in turn, inherited the land in dispute from his ancestors. Appellant did not lead any evidence to establish who the original founders of the land were and how the land devolved to his father from whom he inherited. At the trial court the plaintiff/respondent, see page 48 lines 7-14 of the record of appeal, testified as follows:

“I bought the land from the owner by a Deed of Conveyance. The Deed of Conveyance is with the court. It was admitted sometime by the court. I bought it on 25th November, 1976. I registered the Deed of Conveyance as No. 71 at page 71 Volume 38 in the Lands Registry in Port Harcourt. If I see the Deed of Conveyance I will be able to recognize it. This is the Deed of Conveyance. Defence counsel has no objection. Deed of Conveyance registered as No. 71 at page 71 in Volume 38 of the Lands Registry, Port Harcourt is admitted and marked EXHIBIT A.”

He testified further thus:-

“The names of my vendors of Exhibit A are John Nweke and Chukwuma Nwobu. From my findings, I discovered that my vendors bought the land from one Enoch Agbirigba, the original owner of the land. I applied for a certified true copy of the Deed of Conveyance between Enoch Agbirigba and John Nweke and Chukwuma Nwobu. This is the certified true copy of the Deed of Conveyance. Counsel seeks to tender it. No objection by the defence counsel. Deed of Conveyance registered as No. 57 at page 57 in volume 103 of the Lands Registry at Enugu is admitted and marked Exhibit E.” The trial court at page 99 lines 4 to 11 of the record inter-alia held as follows;-

“… I agree with the submission of learned counsel for the plaintiff, that all the grants made by the plaintiffs vendors including that of the plaintiff in this suit is consistent with ownership and agrees with exhibit E which is the root of titleI find therefore that the plaintiff has established a better title to the land in dispute than the defendant.”

In affirming the foregoing decision of the trial court the lower court at page 363 of the record held as follows:-

“Respondent’s evidence was not at variance with his pleadings. The learned trial judge received exhibit E which shows the valid deed of conveyance as No. 57 page 57 in volume 103 of the Land Registry at Enugu. From the above evidence of the respondent at the lower court, exhibits A and E, which the respondent acquire as title owners in respect of Akwodo land which is the land in dispute, were clearly tendered and admitted in the presence of appellant and his counsel in court.

The legal effect is that the appellant, by admitting respondent’s title documents exhibits A and E as well as admitting exhibit B which was a survey plan of the land in dispute is that the respondent had lawfully acquired the land in dispute

I am satisfied that the trial court was perfect in giving judgment in favour of the respondent whose pivotal point in respect of his root of title and survey plan were pleaded, testified and tendered without any challenge it was uncontroverted by the appellant.”

I cannot agree more with the lower court. The concurrent findings of the two courts are based on the pleadings of parties and the evidence on record in support of these pleadings. As rightly observed by the lower court, the appellant who was represented by counsel and did not object to the reception of the documents the plaintiff/respondent’s tendered in support of his claim in evidence cannot now complain that it is wrong of the two courts to have relied on the unchallenged and uncontroverted evidence. The lower court’s reliance on the decisions of this Court in Mainage V. Gwamna (1997) 1 NWLR (Pt 528) and Nigeria Maritime Services Ltd V. Alhaji Betlo Afolabi (1978) 2 SC 79 in this regard is well informed. In Shurumu V. The State 196 LRCN 199 this Court stated the principle more succinctly thus:-

“When a counsel stands by and allows exhibits to sail smoothly through to become evidence without an eyelid, then it becomes obvious that the counsel is comfortable

In the circumstance the trial court’s duty, which the lower court rightly found to have been discharged, is to consider the pleadings of both sides and put the lawful evidence led on an imaginary scale and determine whose is weightier. Having not succeeded in establishing at the lower court where the trial court went wrong in evaluating the evidence of the two sides and ascribing, value to same, the appellant’s expectation of any success here is baseless. Trespass is an infraction against possession. See Aboyeji V. Momoh (1994) 4 NWLR (Pt 341) 646 and Omorhirhi V. Enatevwere (1988) LPELR-2659. The law gives possession to the owner of the land against the whole world. Appellant has admitted being in possession of the land in dispute, the two courts below rightly adjudged the plaintiff/respondent the owner. In the event, therefore, appellant is the trespasser and the concurrent findings of the two courts must for that reason endure. Appellant’s 1st issue is accordingly resolved against him.

The issue of title to the land in dispute and who is the trespasser is indeed the real issue in controversy between the parties in this appeal. I discountenance appellant’s 3rd issue, respondent’s 4th, challenging the authenticity of the exhibits relied upon by the plaintiff/respondent’s at the lower court for the first time and without leave sought and obtained thereat.

As a whole, I see no merit in the appeal and hereby dismiss same at a cost of N200,000.00k Two hundred thousand naira against the appellant in favour of the respondent.

The lower courts decision in appeal No. CA/PH/16/2002 is accordingly affirmed.


EKO, JSC

The land in dispute is at No. 176/178 Ikwere Road, Mile 3, Diobu, Port Harcourt. It forms part of the larger tract of land called Akwodo. The Parties are ad idem on the identity of the land.

The Respondent, as the plaintiff, testified that by a Deed of Conveyance, Exhibit A, he bought the disputed parcel of land from John Nweke and Chukwuma Nwobu, who had earlier bought the parcel of land called Akwodo from the Agbirigba Family. The deed of Conveyance evidencing the purchase of the land by John Nweke and Chukwuma Nwobu from the Agbirigba

Family is Exhibit E, which deed of conveyance was registered in the Lands Registry as No. 57 at page 57 in Volume 103 of Lands Registry, Enugu. The Respondent, upon the subsequent transaction, had also registered his Deed of Conveyance, Exhibit A, as No. 71, at page 71 volume 38 in the Deeds Register as the Lands Registry, Port Harcourt. His pleadings and evidence on the root of title he asserted are quite consistent.

The dispute survey plan, proving the identity of the disputed land, is Exhibit B. The plaintiff/Respondent also produced Exhibit D, judgment of a court of competent jurisdiction, as confirmation that the title of his vendors was inviolate and unimpeached.

The Appellant, as the defendant, on the other hand, claims to be the owner of the disputed land through his inheritance of the same from his father, Ogbonda Orlu, who in turn had earlier inherited the land from his own father, Ahanonu. The Appellant does not recognise the interest of the Agbirigba Family in the land. That is, the Family through whom the plaintiff/Respondent claims his root of title.

Whereas the root of title the plaintiff/Respondent asserts is rooted in both traditional and documentary evidence; the plaintiff/Appellant, on the other hand, founds his claim to title largely on traditional history. Traditional history and production of title documents are, each, one of the five ways of proving title to land. See IDUNDUN V. OKUMAGBA (1976) NMLR 200 at 210; (1976) 10 SC. 227 at 246. Proof of acts of ownership, such as selling, leasing, renting over a sufficient length of time numerous and positive enough to warrant the inference of true ownership is also one of the five methods or ways of proving title to land. The production, in this case, of Exhibit E, to establish the title of the Agbirigba Family to Akwodo land, the portion of which was sold in Exhibit A to the plaintiff/Respondent seems to establish that at one time or the other the said Agbirigba Family asserted acts of ownership over the disputed land.

The learned trial Judge was impressed by the evidence of the plaintiff/Respondent, and had particularly, found as a fact at page 99 of the Record, that “all the grants made by the plaintiff’s vendors, including that of the plaintiff, in this suit is consistent with ownership and agrees with Exhibit E”. On this finding of fact he, therefore held that “the plaintiff has established a better title to the land in dispute than the defendant”. This finding of fact, among others, was affirmed by the lower court. Thus, there are concurrent findings of fact in favour of the plaintiff/Respondent’s title to the disputed land. The concurrent findings of fact have not been shown to be perverse. They are supported by the pleaded facts and the evidence establishing those pleadings. The lower court specifically found, at page 363 of the Record, “that the trial court was perfect in giving judgment in favour of the respondent whose pivotal point in respect of his root of title and survey plan were pleaded” and proved by the plaintiff/Respondent’s evidence that “was uncontroverted by the appellant”, as the defendant at the trial court.

An appellant wishing to upturn concurrent findings of fact by the High Court and the Court of Appeal has an uphill task at the Supreme Court. This Court does not, as a practice, disturb such concurrent findings of fact, unless they are, satisfactorily, shown to be perverse. See BASHAYA V.THE STATE (1998) 4 SC 199; YESUFU v. ADAMA (2010) 5 NWLR (pt.H88) 552 SC. This Court I emphasise, does not lightly depart from concurrent findings of fact. One reason for this is that it does not have the advantage or opportunity of seeing and listening to the witnesses testify. The trial court has that opportunity or advantage. The trial Judge, on facts, is presumed to be skillful and adept.

The issues formulated for the determination of this appeal are all issues of fact. Although this is the final court of the realm, the Constitution does not intend, from the provisions of Section 233 thereof, that this Court be bothered and burdened by appeals on facts. It is unfortunate that this appeal, on the issues formulated for determination, was able to sneak itself unto the cause list of this Court. It is only when the Supreme Court is as sitting a court of first instance, by virtue of its original jurisdiction conferred by Section 232 of the Constitution, that the jurisdiction to entertain disputes on facts is undoubted. Leave, by dint of Section 233 (3) of the Constitution, is required for appeal on facts. On whether this Court should interfere where issues of facts have been filtered by the High Court and the Court of Appeal, I hereby adopt the dictum of Kayode Eso, JSC, in KALE V. COKER & ORS. (1982) 12 SC (Reprint) 118 –

“The Supreme Court is essentially a Constitutional Court. It is to deal mainly with constitutional matters and important issues of law. For any issue of fact to be brought before the court in its appellate jurisdiction, leave of the – Court of Appeal or – of this Court is required. See Section 213 (3) of the Constitution of the Federal Republic of Nigeria, 1979. It is my considered view that neither the – Court of Appeal nor this Court should give such leave lightly. To my mind the establishment of an intermediate Court of Appeal between the High Court and the Supreme Court is to enable facts to come to rest in that intermediate Court of Appeal. Except there will be a miscarriage of justice, once issue of facts has been filtered by the High Court and the – Court of Appeal this Court will not interfere. Section 233(3) of the extant constitution is in pari materia with S.213(3) of the repealed 1979 Constitution”.

On this note, I agree with my learned brother, MUSA DATTIJO MUHAMMAD, JSC, in the lead judgment just delivered in this appeal, that we should not interfere with the concurrent findings of fact by the High Court and the Court of Appeal in this appeal. The appeal shall be, and is hereby dismissed. I hereby adopt all the consequential orders made in the lead judgment, including the order as to costs.


KEKERE-EKUN, JSC

I have had the benefit of reading in draft the well considered judgment of my learned brother, MUSA DATTIJO MUHAMMAD, JSC just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed.

By his appeal before this court, the appellant seeks to overturn the concurrent findings of fact made by the two lower courts in favour of the respondent. In order to dislodge the concurrent findings of the two lower courts, the appellant has the onerous task of satisfying this court that the findings are perverse, not supported by the evidence, or that there is an error of law or procedure which has occasioned a miscarriage of justice. See: Lewis Vs U.B.A. PLC (2016) 1 SC (Pt.1) 96 @ 120 – 121; NICON Vs Power & Industrial Eng. Co. Ltd. (1986) 1 NWLR fPt.271) 1: Ibodo Vs Enarofia f1980) 5 -7 SC 42 @ 55; Michael Vs The State (2008) 13 NWLR fPt.1104) 361.

The respondent herein, by a writ of summons filed on 26/10/1979 before the High Court of Rivers State, Port Harcourt Judicial Division sought the following reliefs jointly and severally against eight defendants including the appellant who was the 1st defendant:

1. N10,000 general damages for trespass into the plaintiff’s land known and called Akwodo situate at Mile 3, Diobu, Port Harcourt and registered as No. 71 at page 71 in vol. 38 of the Lands Registry, Port Harcourt and as shown in plaintiff’s plan filed with the Amended Statement of Claim.

2. Perpetual injunction restraining the defendants, their servants and agents from further entering or interfering in the plaintiff’s said land.

It was the respondent’s case at the trial court that he became the owner of the land in dispute by way of purchase from the rightful owners of the land, John Nweke and Chukwuma Nwobu. They executed a Deed of Conveyance dated 25/11/76 in his favour which was duly registered at the Lands Registry in Port Harcourt. It was admitted in evidence as Exhibit A. They acquired a large parcel of land which includes the land in dispute from the original owner Enoch Agbirigba in 1958. The indenture evidencing the transaction between the respondent’s vendors and Agbirigba was also registered. He testified that he engaged a surveyor who surveyed the land and erected pillars thereon and that he remained in peaceful possession of the land until sometime in 1977 when the defendants, including the appellant trespassed thereon by entering upon the land and erecting temporary structures. They refused all entreaties to desist from their acts of trespass.

On the part of the defendants, the appellant (1st defendant) claimed that he owned the land in dispute by virtue of inheritance from his father Ogbinda Orlu, who inherited it from his ancestor, Ahanonu. That he built on the land as far back as 1972 and put tenants thereon.

Both sides gave oral and documentary evidence in support of their respective positions. At the conclusion of the trial, judgment was entered in favour of the respondent and the reliefs sought by him were granted. His appeal to the Court of Appeal was unsuccessful, hence the instant appeal.

My comments in support of the lead judgment are on the issue of title and trespass. It is pertinent to note that the respondent’s claim was for damages for trespass and injunction.

The law is settled that a claim for trespass to land is generally rooted in exclusive possession. Therefore all that a claimant needs to prove is that he has exclusive possession or that he has the right to exclusive possession of the land. However, where a defendant claims to be the owner of the land, title to the land is put in issue and in order to succeed, the plaintiff must prove a better title. See: Pius Amakor Vs Benedict Obiefuna (1974) 3 SC (Reprint): Oqunleye Vs Oni (1990) 2 NWLR (Pt.135) 745: Omotavo Vs C.S.A. (2010) 16 NWLR (Pt.1218) 1. It is also settled that the plaintiff must succeed on the strength of his case and not on the weakness of the defence, if any, except where the weakness of the defendant’s case strengthens the plaintiff’s case. See: Ngene Vs Igbo (2000) 4 NWLR (Pt.651) 131: Onwugbufor Vs Okoye (1996) 1 NWLR (Pt.424) 252: Adesanya Vs Aderonmu (2000) 13 WRN 104 @ 115 lines 10-35.

In support of his claim, the respondent relied on documentary evidence, including Exhibit A – Deed of Conveyance between him and his vendors; Exhibit B – Survey Plan; Exhibit C – letter written to the defendants by his solicitors warning them to desist from their acts of trespass; Exhibit D – a judgment in a suit between the appellant and another party affirming the title of the respondent’s vendors; Exhibit E – CTC of the deed of conveyance between the respondent’s vendors and the original owner of the land. It is to be noted that both Exhibits A and E are duly registered instruments. The law is that once a registrable instrument is duly registered in accordance with the relevant Registration Law, the effect of such registration is that the party registering same acquires a good title until a superior title is produced. See: Oboru Vs R.S.H. & P.D.A. (1997) 9 NWLR (Pt.521) 425 @ 443-444 H – A. This decision of the Court of Appeal was affirmed by this court in Obulor & Anor. Vs Oboro (2001) 8 NWLR (Pt.714) 25. See also Section 48 (1) (a) of the Registration of Titles Law, Cap 114 Vol. VI Laws of Eastern Nigeria 1963 applicable to Rivers State.

Thus the plaintiff/respondent had traced the root of his title through his vendors to the original owner of the land. Exhibit D was tendered to establish the fact that his vendors’ title had been affirmed by a court of competent jurisdiction.

The appellant on the other hand relied on traditional history to support his claim of ownership. His case, as stated earlier, was that he inherited the land from his father who inherited it from his ancestor, Ahanonu.

Where a party relies on traditional history to prove his title, he must plead and prove:

a. Who founded the land.

b. How the land was founded; and

c. Particulars of intervening owners.

See: Alii Vs Aleshinlove (2000) 4 SCNJ 264 @ 284-285? Mogaji Vs Cadbury Nig. Ltd. (supra); Elegushi Vs Oseni (2005) 14 NWLR (Pt.945) 348.

After a careful consideration of the evidence of the parties and the final addresses of counsel, the learned trial Judge found that the appellant failed to establish his title by traditional evidence. His Lordship held at pages 98-99 of the record as follows:

“However, the 1 defendant’s claim to title over the entire Akwodo land on which all the aforesaid properties are situate is based on his sole evidence that he inherited the land from his father who inherited from his own father Ahanonu, the original owner and founder of the land. I agree with Mr. Nworka that there is no evidence as to how the 1st defendant’s grandfather and ancestor Ahanonu founded the land in dispute whether it was by conquest or by purchase and that those material facts that must be pleaded and proved. SEE CHUKWU VERSUS NNEJI (1990) 6 NWLR PT. 156 P.363 PP. 367 RATIO 8. Besides, paragraph 4 of the Further Amended Statement of Defence was abandoned by the defendant as there was no iota of evidence in proof of the averments contained therein and in particular to the issue that the sale of the land in dispute to Jown (sic) Nweke and Chukwuma Nwobu (plaintiff’s vendors) by Enoch Agbirigba was void because Enoch Agbirigba had no title over the land in dispute.

In the light of the above, and the findings in EXHIBIT XD’ (the judgment in PHC/98/73) which is still subsisting and binding, I agree with the submission of learned counsel for the plaintiff, that all the grants made by the plaintiff’s vendors including that of the plaintiff in this suit is consistent with ownership and agrees with Exhibit E’ which is the root of title.

I find therefore that the plaintiff has established a better title to the land in dispute than the defendant.” (Underlining mine for emphasis)

Upholding the above finding, the lower court held at pages 364-365 of the record:

“From the above evidence of the respondent at the lower court, Exhibits A and E, which the respondent and also vendors acquired as title owners in respect of AKWADO land which is the land in dispute, were clearly tendered and admitted in the presence of the appellant and his counsel in court. Despite this fact, the appellant did not make any objection whatsoever. The legal effect is that the appellant, by admitting respondent’s title of documents Exhibits A and E as well as admitting Exhibit B which was a Survey Plan of the land in dispute, is that, the respondent had lawfully acquired the land in dispute, which was properly granted in the trial court’s judgment. See MAINAGGE v GWAMNA (1997) 1 NWLR (Pt.528) 191, where this court said:

The documents tendered in court by the respondent, scaled through smoothly without any eyebrow being raised either by the defence counsel or the court could..be presumed to be in order and therefore admissible. I cannot allow the appellant to retreat and abjure what he has voluntarily and skilfully too, accepted.’

In the instant appeal I cannot find any reason why the appellant or his counsel can now impugn on the respondent, who lawfully and in consideration of the rules of this Court, tendered his root of title i.e. Exhibits A and E which were deed of conveyance of the land in dispute, and the appellant and his counsel had clearly admitted these facts and failed to even make a feeble objection or challenge same. It is too late in the evening for the appellant to raise eyebrows. It is well established principle of law that where evidence given by a party to any proceedings have not been challenged or discredited by the opposing party who had the chance to do so, then it is open to the court hearing the matter, to act and rely on such unchallenged or opposed evidence as done by the trial court in this matter. I refer to the Supreme Court decision in ISAAC OMOREGBE v DANIEL LAWANI (1980) 3-4 SC 108; NIGERIA MARITIME SERVICES LTD v ALHAJI BELLO AFOLBI (sic) (1978) 2 SC 79.

From the above consideration and authoritative decision of the Apex Court, I am satisfied that the trial court was perfect in giving the judgment in favour of the respondent whose pivotal point in respect of his root of title and survey plan were pleaded, testified and tendered without any challenge, it was uncontroverted by the appellant. I therefore resolve issue 1 in favour of the respondent.” (Underlining mine)

On the issue of trespass, the court referred to the respondent’s pleading in paragraphs 7, 8 and 9 of his amended statement of claim and his oral evidence in support. The court affirmed the findings of the trial court in the following terms: “The above is enough evidence of establishment of the respondents’ possession of the land in dispute. It is to be noted which I accept, that the respondent had earlier on, tendered Exhibits A, B and E which were the valid Deeds of Conveyance and Survey Plan which was not opposed to or challenged by the appellant. Appellant’s admission and refusal to challenge or raise an objection is tantamount to accepting the plea and evidence of the respondent on issue of trespass, which he established. The trial Judge was therefore proper to rely on the contents of Exhibits A and E as well as B which clearly showed the beacon numbers RSF 580, RSF 581, RSF 582 and RSF 583 which was duly signed by the licensed surveyor who surveyed same. The act of survey plan and erection of the beacons by the respondent is a clear establishment, that he was in possession, and therefore entitled to damages for the acts of trespass committed by the appellant. I am satisfied that the trial Judge had properly evaluated the evidence of both parties in relation to the issue of trespass and the requisite damages as sought and proved by the respondent as shown on pages 99 to 100 of the record.” (Underlining mine)

After reproducing the findings of the learned trial Judge at pages 99-100 of the record, His Lordship, Istifanus Thomas, JCA in the lead judgment held:

“I have no business to temper (sic) and or reverse the findings of the trial court as in the instant appeal and even if on same evidence, I would have come to a different conclusion unless it had occasioned a miscarriage of justice.”

I am of the view that the findings of fact by the two lower courts in this regard are unassailable. The appellant has failed to persuade me otherwise. What learned counsel for the appellant has sought to do in this appeal is to reopen the matter as if this were the trial court. He has made copious submissions on the probative value of the documentary evidence tendered by the respondent at the trial court when he failed to take advantage of the hearing to challenge them. He also failed to seek leave to raise the issues now being canvassed as new issues before this court. An appeal is simply a continuation of the case put forward at the court of first instance. It is not an opportunity for a party to make an entirely new case. See: Osuji Vs Ekeocha (2009) 16 NWLR (Pt.1166) 81: Adeqoke Motors Ltd. Vs Adesanva (1989) 3 NWLR (Pt.109) 250.

Learned counsel for the appellant has argued that notwithstanding the fact that the documents were admitted in evidence without objection, the court still has a duty to consider the weight to attach to them. In the instant case both lower courts were right when they held that the appellant failed to impugn the documentary evidence before the trial court. Also as rightly observed by the trial court, the appellant failed to lead evidence in support of paragraph 4 of his Amended Statement of Defence wherein he pleaded that one of the respondent’s vendors died in 1973 before the execution of Exhibit A. In the absence of any evidence to support the pleading, it was rightly deemed abandoned. I also agree with both lower courts that there was no dispute at all as regards the identity of the land in dispute. Again the survey plan was admitted in evidence without objection.

I agree entirely with the concurrent findings of the two lower courts that the respondent proved a better title to the land in dispute and had established his entitlement to the reliefs granted in his favour.

For these and the more elaborate reasons advanced in the lead judgment, I hold that the appeal is devoid of merit. It is hereby dismissed. The judgment of the Court of Appeal, Port Harcourt Division delivered on 11/12/2006 affirming the judgment of the trial court delivered on 17/4/96 is further affirmed. I abide by the order on costs as made in the lead judgment.


 ONNOGHEN, CJN

I have had the benefit of reading in draft the lead Judgment of my learned brother MUSA D. MUHAMMAD, JSC just delivered.

I agree with his reasoning and conclusion that the appeal is devoid of merit and should consequently be dismissed.

I therefore order accordingly and affirm the Judgment of the lower court and abide by the consequential orders made in the said lead Judgment including the order as to costs.

Appeal dismissed.


COUNSEL:

H.D.D. UWOM ESQ. for the Appellant.

TUDURU EDE ESQ. for the Respondent with E.C. Apia Esq. and C.C. Agidi Esq