OWOBU V OSIFO

OWOBU V OSIFO


IN THE COURT OF APPEAL
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN

ON FRIDAY, 13TH JANUARY, 2017


Appeal No: CA/B/320/2010

CITATION:

Before Their Lordships:

MOJEED ADEKUNLE OWOADE, JCA

CHIDI NWAOMA UWA, JCA

HAMMA AKAWU BARKA, JCA


BETWEEN

PRINCE MATT OWOBU
(APPELLANT)

AND

MRS. ALICE OSIFO
(RESPONDENT)


PRONOUNCEMENT


A. ACTION
1. Counter-Claim – The implication where a plaintiff fails to file a defense to a counterclaim
Effect of failure of a plaintiff to file a reply/defence to a counter-claim

The position of the law is that where a plaintiff fails to file a defense to a counterclaim, which is a separate action, the effect is exactly the same as that of a defendant in a normal action who fails to file a statement of defense. See Oke v. Aiyedun (1986) 2 NWLR (pt 23) 548. Per BARKA, JCA. read in context

B. APPEAL
2. Fresh Points on Appeal – How a fresh issue raised on appeal without leave of Court would be struck out
Effect of raising an issue for the first time on appeal without leave of Court where same is required

I do agree with the learned counsel that such constituted raising a fresh issue on appeal, and for which no leave of this Court was sought for, nor obtained. Upon the authority of Pharma Deko Plc v. NSITFMB (2011) 35 WRN 70 @ 92 per Kekere – Ekun JCA (AHTW), qualifies to be struck out, and it is hereby struck out. Per BARKA, JCA. read in context

C. EVIDENCE
3. Burden of Proof – How he who asserts must prove
Burden and standard of proof in civil cases

It is trite that civil cases (as the one at hand) are determined upon thee preponderance of evidence and balance of probability, as he who asserts must prove. It behoves the plaintiff in order to succeed to adduce reliable and credible evidence in support of the matter in controversy. See Chabasanya v. Joe Anwasi (2010) 10 NWLR (Pt.1201) 163; Sule Anyedwu v. Aidoko Onuche (2009) NMLR 1 @ 8-9. Per BARKA, JCA. read in context

4. Evaluation of Evidence – The primary function of the trial Court
Whether evaluation of evidence and ascription of probative value is a primary function of the trial Court

It is the clear and undisputable position of the law, that the evaluation of evidence is the primary function of the trial Court. The rationale behind this is that a trial Court is in a proper, better and vantage position to see, hear, take note and assess the witnesses and evidence to be given in support of the respective positions of the parties. The Court of Appeal with the vast powers bestowed on the Court by virtue of Section 16 of the Court of Appeal Act should resist the temptation of retrying the case upon the cold records of appeal placed before it. See Maigari v. Mailafiya (supra) at page 398 per Lawal Garba JCA. Per BARKA, JCA. read in context

5. Oral or Documentary Evidence – The position of the law where there is oral as well as documentary evidence

It is trite law that where there is oral as well as documentary evidence on any issue, the latter should be used as a hanger from which to assess the oral evidence. This is because, documentary evidence is said to be more reliable than oral evidence and is used to test the credibility of the oral evidence adduced. See the cases of Fashanu v. Adekoya (197 ) ALL NLR 32 @ 37 – 38; Kimdey & Ors v. Military Governor of Gongola State & Ors. (1998) 2 NWLR (Pt.77) 445; Egharevba v. Osagie (2009) 18 NWLR (Pt.1173) 299. Per BARKA, JCA. read in context

6. Evidence of Witness – The principle of law where a witness gives evidence against the who called him
Effect of evidence given by a witness against the party who called him

This principle of the law as lay down in the case of Ojiegbe v. Okwaranyia (1992) 1 ALL NLR 605; Odi vs lyala (2004) 8 NWLR (Pt 875) 283, presupposes a situation where a witness called by a party gives evidence against that party. Per BARKA, JCA. read in context

7. Visit to the Locus in Quo – General principle as to when it is appropriate for a judge to visit the locus in quo

On the Appellant’s complaint on the non-visit to the locus in quo by the trial judge, the general principle as to when it is appropriate for a judge to visit the locus in quo, has been stated by the Supreme Court in the case of Anyanwu v. Mbara (1992) NWLR (Pt.242) 386 in the following words:-

“It is a course which a Judge can take only with due caution, with full advertence that to the fact that as he is not a party to the case, it is belief for one of the parties to apply for it.

But where from the quality and quantity of the evidence called by both parties he finds himself in such a position in which without supplementing what he had heard with what he can see, he can only accredit one version of the conflicting evidence and discredit the other mechanically, he should bring to the notice of the parties the need for a visit to the locus and get their consent or acquiescence to it.” Per BARKA, JCA. read in context

8. Visit to the Locus in Quo – The object of a visit to the locus
Purpose of a visit or inspection of the locus in quo

The object and purpose of a visit to the locus is to enable the Court avail itself and to see the objects, features and other places referred to from the oral evidence adduced, so as to clear any lingering doubts arising from the conflicting pieces of evidence rendered. See Akosile v. Adeyeye (2011) 22 WRN 147 at 169. Per BARKA, JCA. read in context

D. LAND LAW
9. Declaration of Title to Land – How the land in dispute in any claim for declaration of title is that parcel of land claimed by the plaintiff
Whether the land in dispute in any claim for declaration of title is that parcel of land claimed by the plaintiff

The plaintiff on the authority of Adone vs. Iketubu (2001) 90 LRCN 2711 @ 2734 is right in stating that the land in dispute in any claim for declaration of title or entitlement to the grant of a statutory or customary right of occupancy to land is that parcel of land claimed by the plaintiff. Per BARKA, JCA. read in context

10. Identity of Land – The test for establishing identity of land

I also agree with the plaintiff in line with the authorities of Atedwadzo vs. Robert Kwesi – Adjei (supra); Basil v. Fajebe (supra) and Babatunde v. Aladejana (supra) that where the identity and extent of the land is in issue, the test is whether a surveyor armed with the document will be able to produce an accurate plan of the land from the description given. Per BARKA, JCA. read in context

11. Survey Plan – When the need for survey plan becomes unnecessary
When a survey plan will not be necessary

It is equally trite law that where the identity of the land is known to both parties and therefore not in dispute, the need for a survey plan becomes unnecessary. See Dakolo v. Dakolo – Rewane (2011) 198 LRCN 1 @ 21. Per BARKA, JCA. read in context

12. Declaration of Title to Land – What must be fulfilled before a declaration of title to land is granted
The need for land to be identified in a claim for declaration of title to land

The law is quite established as related by this Court in Olokunlade v. Ademiloyo (2011) 35 WRN 41 at 60- 61 per Abba -Aji JCA thus:

“it is trite law that before a declaration of title to land is granted, the land to which the claim relates must be identified with certainty and that it is the duty of the plaintiff in such a case to show the Court clearly the area of the land to which the claim relates, and if it is not so ascertained, the claim must fail. See Adeosun v. Jibesin (2001) 14 WRN 106; Nwogo v. Njoku (1990) 3 NWLR (Pt.140) 570 @ 581 the need to prove the identity of the land in dispute with certainty will arise in every case where the defendant joins issue with the plaintiff on the question of the identity of the land in dispute. In such cases the first duty of the plaintiff is to prove the boundaries and identity of the land with certainty, see Nwogu vs Njoku (supra) @ 579, Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208 at 220.” See also Olohunde v. Adeyoju (supra) @ pages 181 – 182. Per BARKA, JCA. read in context

13. Identity of Land – The duty imposed on the claimant in establishing the identity of the land in dispute
How to establish identity of land

The position of the law is that in establishing the identity of the land in dispute, the claimant has a duty of filing a detailed and accurate survey plan of the land showing the various features on such land sufficient to point to the clear boundaries thereof. See Aiyeola v. Pedro (2014) 13 NWLR (Pt.1424) 409; Emiri v. Imieyeh (1999) 4 NWLR (Pt.599) 442. Per BARKA, JCA. read in context

14. Certificate of Occupancy – What Certificate of Occupancy vests on the holder
Whether certificate of occupancy is conclusive evidence of title

The issuance of a Certificate of Occupancy does not automatically vest on the holder title to the land described therein. It is at best only a prima facie evidence of such right, interest or title without more, and may in appropriate cases be effectively challenged and rendered invalid and ineffective. This has been the established position of the law in a plethora of authorities including Olohunde vs Adeyoju (supra) at page 184; Lababedi v. Lagos Metal Industries (Nig) Ltd (1973) 1 SC 1 @ 6; Mogaji vs. Cadbury (1985) 2 NWLR (Pt.7) 393; Kyari v. Alkali (2001) 11 NWLR (Pt 724); Atanda v. Ifiasu (2013) 18 WRN 1 @ 29, per Ogunbiyi JSC; Dakan & Ors vs. Asalu & Ors (2015) LPELR – SC.64/2005.

The Respondent having successively proved a better title to the disputed land, the Certificate of Occupancy issued to the Appellants loses its value and efficacy, and the lower Court is right to have set it aside. Per BARKA, JCA. read in context

15. Declaration of Title to Land – The duty imposed on the plaintiff and counterclaimant in a claim for declaration of title to land
Duty of a claimant/plaintiff in an action for declaration of title to land

In a claim for declaration of title to land, it is the duty of the plaintiff and counterclaimant to establish with certainty and accuracy the identity of the land upon which his claim is founded. This is a condition precedent to the success of the claim. It follows therefore that where a claimant fails to give the exact extent and identity of the land he is claiming, his action stands to be dismissed. See Okunade v. Olawale (2014) 10 NWLR (Pt.1415) 207; Otanma v. Youdubagha (2006) 2 NWLR (Pt.964) 337; Dada v. Dosunmu (2006) 18 NWLR (Pt.1010) 134. Per BARKA, JCA read in context


LEAD JUDGMENT DELIVERED BY BARKA, JCA


The appeal is against the judgment of the Edo State High Court sitting in Benin City, the Edo State Capital in suit No. B/149/2001, between Prince Matt Owobu and Mrs Alice Osifo delivered on the 9th of February, 2010. Coram Justice C.O. Idahosa. In the said judgment, the plaintiffs claim was found to be unproven, while the defendants counter claim was found to have been proved, and judgment entered in her favor, granting all the reliefs sought in the counterclaim.

The gist of the plaintiff’s case as borne in his further amended statement of claim, (see pages 22-27 of the records) is that the Appellant bought the said land from Bright and Osaro Obasuyi in the year 1993, the two having inherited the land from their deceased father, Obasuyi Omaghino who died on the 15th of December 1982.

Before purchasing the land, the plaintiff approached one Chief Edo Alekhogie, the then chairman of the land Allotment committee in Ekosodin, Benin City, who confirmed to him that the land belong to the deceased Obasuyi Omaghino, and inherited by Bright Obasuyi and his brother Osaro Obasuyi. The plaintiff was shown the Oba’s approval in respect of the land, tendered as Exhibit C; A deed of transfer of the piece of land measuring 100 ft by 200ft was executed, with the said Edo Alekhogie signing as a witness, upon a consideration of N50, 000.00.

The plaintiff proceeded to plant ten palm trees on the land and a survey plan of the land was done by a surveyor. He then sought for and obtained a Certificate of Occupancy from the State government with No. EDSR 1279, issued on the 29th day of July 1997. Much to his greatest amazement and surprise, the plaintiff sometimes in February, 2001 met the 2nd defendant on the land, and upon inquiry was told that the 2nd defendant was on the land upon the instructions of the 1st defendant. He then proceeded to commission a licensed surveyor to produce a litigation survey plan, and also reported to the police, who advised that the case is civil in nature. The 1st and 2nd defendants having persisted in their acts of trespass, the plaintiff caused a writ of summons to issue against the defendants, wherein he claimed for the following reliefs,

(a) A declaration that the plaintiff is entitled to a statutory right of occupancy and possession of the said land which is more particularly described and delineated in survey plan made in pursuant to this suit.

(b) The sum of N5,000,000 (five Million Naira) for trespass by the defendants jointly and severally as general damages.

(c) Special damage.

1. Survey of the land N250,000.00

2. Maintenance of the land since 1993 to date N250,000.00

3. Acquiring a certificate of Occupancy with the stamp duties, N250,000.00.

4. Ten Palm trees destroyed at N10,000 per tree at N100,000.00, totaling N1,100,000.00

(d) An order for perpetual injunction.

The defendants in their further amended statement of defense, admitted paragraphs 1, 2, 3, and 5 of the statement of claim, denied all other averments contained therein and putting the plaintiff to the strictest proof thereof. In 22 paragraphs of the statement of defense under reference, the 1st defendant stated therein, that she inherited the parcel of land from her mother, late Dr (Mrs) Victoria Omonsukpon Ikuoyemwen (nee Uwota) in accordance with Bini customary Law of succession, and that the said land is completely different from the one allegedly acquired from Messrs Bright Obasuyi and Osaro Obasuyi, who allegedly inherited from their father late Obasuyi Onaghino. The 1st defendant stated that her mother applied for a building plot through the Ekodosin Plot Allotment committee sometimes in June, 1972, for a plot of land measuring 100ft by 200 ft, and which was approved by the Oba on the 23rd of January, 1973. She maintains that her plot and the one acquired by the plaintiff are not the same, and therefore all the steps taken by the plaintiff in respect of the land he allegedly acquired from the said Obasuyi brothers are of no moment. She also stated that her mother commissioned a surveyor sometimes in 1992, long before the plaintiff carried out his own survey in 1997, and when her workers were arrested, she reported the incident to the elders and Odionwere in Ekosodin for settlement, where Mr Edo Alekhuogie told those present that the land he showed the plaintiff is not the same with the land in dispute. She prayed the Court to dismiss the plaintiff’s case for lack of merit with substantial costs.

By way of counterclaim, the defendant claimed as follows:-

The first defendant (herein after referred to as the counterclaimant) counterclaims against the plaintiff for the sum of N500,000 (five Hundred thousand Naira) being special and general damages for the wanton acts of trespass committed by the plaintiff upon the 1st defendant/counter claimant’s piece or parcel of land which she inherited from her late mother.

(1) PARTICULARS OF SPECIAL DAMAGE.

(a) 120 bags of cement which the 1st defendant/counterclaimant has to abandon as a result of the plaintiff’s injunction which have now gone bad at N650 per bag.

(b) Deposit paid to contractor which cannot be refunded N50, 000.00.

(c) Amount paid to laborers who have to abandon work after they were arrested by the plaintiff and due to the Court injunction.

(d) Miscellaneous expenses of N10,000

TOTAL SUM N303, 000.00

(2) General damage N197, 000.00

Still at paragraph 25 of the statement of defense and counterclaim, the 1st defendant/counterclaimant counterclaimed in the following terms:-

(a) A declaration that the Certificate of Occupancy No. EDSR 1279 dated the 29th day of July, 1997 and registered as instrument No. 6 at page 6 in Volume B183 of the Lands Registry in the Office at Benin City is null and void, same having been obtained by misrepresentation, concealment of material facts and defects in the title of the plaintiff’s predecessor in title.

(b) A declaration that the 1st defendant/counterclaimant is the person entitled to be granted statutory Right of Occupancy in and over the land in dispute.

(c) The sum of N500,000 (five Hundred thousand Naira) being special and general damages resulting from the wanton acts of trespass committed upon the 1st defendant/counter-claimant’s land by the plaintiff and his agents.

(d) Perpetual injunction restraining the plaintiff, his agents, workmen, privies and servants from further committing any acts of trespass on to the 1st defendants land as described and delineated in the survey plan filed along with her statement of defense and counterclaim.

At the trial before the lower Court, the plaintiff testified and called six witnesses. Thereafter the defendant testified, and called two additional witnesses. Exhibits were tendered by the parties, and at the close of evidence, parties filed and adopted their written addresses. On the 8th of February, 2010, the Court delivered its judgment, dismissing the case of the plaintiff, while entering judgment in favor of the counterclaimant.

Dissatisfied with the judgment of the lower Court which entered judgment for the defendant/counterclaimant, the plaintiff now Appellant appealed to this Court when it filed a notice of appeal on the 16th of April, 2010 predicated on two grounds. The Appellant with the leave of Court sought for and filed ten additional grounds of appeal. The appeal having been entered to this Court within time, parties filed in their respective briefs of argument. The Appellants brief dated the 5th of June, 2013, was filed on the 7th of June, 2013. The Respondent’s brief, dated the 7th of January, 2015, and filed on the 24th of May, 2015 was deemed as having been properly filed and served on the 28th of November, 20 6 with leave of Court granted on the same date.

In the Appellant’s brief distilled by Ayodeji J. Alufohai, and from the two original and twelve additional grounds of appeal, the learned counsel on behalf of the Appellant distilled the following issues for determination:-

(1) Whether the Appellant has not sufficiently proved identity and title to the land in dispute. (Original Ground 1 and additional grounds 1, 6, 8, and 9).

(2) Whether the proceedings before the council of elders of Ekosodin Community qualify as traditional arbitration panel (additional grounds 2, 3 and 4).

(3) Whether the learned trial judge properly evaluated Appellant’s evidence before arriving at the decision (Original grounds 2, and additional grounds 3, 5, 6, 8, and 9).

(4) Whether this is not a proper case for the learned trial judge to have visited the locus in quo (additional ground 7).

(5) Whether it was proper to set aside Certificate of Occupancy when the Obas approval upon which it was predicated was not nullified (additional grounds 5, 10, and 11).

(6) Whether the award of N500,000 as special and general damages to the Respondent for trespass is not erroneous and unjustified in law (additional ground 12).

For the Respondent in the brief settled by A.I. Ekama Mrs.

Three issues were formulated as follows:

(1) Whether the Learned trial judge was right when he held that the Appellant has failed to establish his claim to the land in dispute on preponderance of evidence (based on grounds 1, 2, 3, 4, 5, 6, 8 and 9).

(2) Whether the learned trial judge was right when he gave judgment to the Respondent in terms of her counterclaim (based on grounds 7, 10 and 11).

(3) Whether the learned trial judge was right when he awarded N500,000 as special and general damages to the Respondent (based on ground 12).

Arguing the appeal, Appellant on the issue of proof of identity to the land, and on the authority of Adone v. Iketubu (2001) 90 LRCN 2711 at 2734, stated that the land in issue in any claim for declaration of title to land or entitlement to the grant of a statutory or customary right of occupancy, is the land put in issue.

He goes on to state that where the identity and extent of the land described in a document is in issue, the identity of the land must be tested in the same way, were the party claiming for a declaration of title to land. The test counsel argued is as set out in the cases of Atewadzo v. Robert Kwesi -Adjei 10 WACA 27; Basil v. Fajebe (2001) 86 LRCN 1438 at 1459 and Babatunde v. Aladejana (2001) 88 LRCN 2293 at 2303.

He argued that where the identity of the land is not in dispute a plan is not necessary, and further argued that, where a plaintiff claims ownership of a piece or parcel of land, and describes the boundaries of the land in a survey plan tendered and admitted in evidence, that survey plan clearly refers to the particular parcel of land in dispute.

It is his contention that the Appellant having produced and tendered a survey plan Exhibit A, the certificate of occupancy Exhibit B, and Oba’s approval Exhibit C, and DW1 who produced Exhibit M, having stated that Exhibits A, L, M refer to the same parcel of land, based on the authority ofDakolo v. Rewane-Dakolo (2011) 198 LRCN 1, the identity of the land is not in issue as the land is well known to both parties.

Alluding to the judgment of the lower Court at pages 117 lines 3-6 of the record, and the evidence of the DW1 as to the identity of the land, counsel insists that the identity of the land is not in dispute and the trial Court was wrong in relying on the evidence of the PW4 to hold that the land acquired by the plaintiff/Appellant is not the land in dispute. It is the contention of the learned counsel that by Exhibit A, the evidence of DW1 is an admission against interest, which the trial Court is bound to hold, and the fact that Appellant planted 10 Palm trees on the land and having not been denied, the evidence of the planting of the palm trees is conclusive evidence of the identity of the land and ownership of same.

On the second issue, which pertains to the status of councils of elders of Ekosodin community, it is the contention of learned counsel relying on the cases of Eke v. Okwaranyia (2001) 86 LRCN 1403 at 1428- 1429, Agu v. Ikewibe (1991) 3 LRCN 686, and Ohinari v. Akabeze (1992) 7 LRCN 163, that for there to be a valid customary arbitration, five ingredients must be pleaded and proved. He asserts that the Respondents failed to plead and to prove the existence of the five ingredients enumerated in the brief. He referred to the evidence of DW2 on the purported customary arbitration at pages 62-66 of the record, and states that the evidence fall short of proving the ingredients of a customary arbitration as required by the Supreme Court. It is his contention that Respondent by their pleadings called it amicable settlement and furthermore though the plaintiff failed to attend the visit to the disputed land, the defendant did. He submits therefore, that the lower Court was in grave error in holding that as at the time that Edo Alekhwogie testified, the council of elders was a properly constituted traditional arbitration panel. Counsel relied on the authority of Adimore v. Ajufo (1988) 3 NWLR (pt.80) 1 at 15, to the effect that a Court is bound by the pleadings and issues raised by both parties, and a trial Court cannot raise issues for the parties not flowing from the issues filed. He submitted further that the evidence of DW2 and Exhibits N, and N1-5, based on the authority of the Supreme Court in Eke v. Okwaranyia (supra) pales into insignificance.

On his third issue on the evaluation of evidence, learned counsel submits that the evaluation of evidence is the primary duty of a trial Court, and where the trial Court abdicates this sacred duty, the appellate Court has the duty of doing that which the trial Court failed to do. He maintains that where the evidence which the trial Court failed to evaluate is documentary in nature, an appellate Court is in as good a position as the Court of trial to evaluate and to come to a conclusion. Counsel now complains that the trial Court did not place the evidence of the Appellant on the identity of the land on an even scale. He referred to Exhibit A, admitted by DW1, which the Court failed to place any probative value on, but rather relied on the evidence of chief Edo Alekhwogie in Exhibit A, and contends that the finding of the trial Court was perverse, and based on the authority of Olagunju v. Adesoye and Anor. (2009) 170 LRCN 1 at 39-40, allow the appeal as the trial Court failed to properly make material findings on important issues of facts and approached the evidence of the Appellant wrongly.

On the fourth issue dealing with the visit to the locus in Quo, learned counsel is of the view that where a trial Court has a clear doubt from the evidence and upon the invitation of one of the parties, or both or suo-motu, the Court can visit the land in dispute in order to ascertain what is on record. He makes reference to the cases of Olusanmi v. Oshasona (1992) 6 SCNJ 282 at 291 and Ukaegbu v. Nwololo. He however, contends that inspection of the locus might not be necessary where the area in conflict is clear to the Court. He further, contended that there is no need for a visit to the locus since by the Appellant’s evidence, the identity of the land is not in dispute going by Exhibits A, L, M, and the evidence of DW1, he goes still further to contend that the lower Court having wrongly approached the evidence as to the identity of the land in dispute, by giving weight to the evidence of PW4 not backed by Exhibit A, the justice of the case demanded that he visit the locus to clear the ambiguity, and failure to do so was fatal to the case from the perspective of the evaluation of the evidence.

Issue Five

It is the contention of learned counsel that the Certificate of Occupancy issued by a competent authority, raises the presumption that he is the owner in exclusive possession of the land in respect thereof. He states that the presumption is however rebuttable, where it is proved that another person had better title to the land. Counsel cited the authorities of Ezennah v. Attah (2004) 116 LRCN 3431 at 3458- 3459; Auta v. Ibe (2003) 110 LRCN 1608 at 1658 and Gamboruma v. Borno (1997) 3 NWLR (Pt 495) 530 at 541. He argued that Appellant having given a vivid account of how the certificate of occupancy was acquired; it is his conclusion that having regard to the credible evidence of the Appellant though wrongly and erroneously approached, the trial Court was in error setting aside the certificate of occupancy Exhibit B.

On Issue six

It is the contention of the counsel that where a claim for trespass is coupled with a claim for injunction, the title to the land is put in issue as pronounced in Omotayo v. Cooperative Supply Association (2011) 202 LRCN 134 at 166, Akintola v. Lasupo (1991) 3 NWLR 326, andThe Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt.158) 514. Furthermore, where two persons claim to be in possession of the land in dispute, the law ascribes possession to the party with a better title. He goes further, to contend that trespass is an injury to a possessory right and the proper plaintiff is the one who is deemed to be in possession. He submits that the award of damages against the Appellant for trespass who is the proper owner having planted ten palm trees on the land is erroneous, oppressive and extravagant. Learned counsel therefore on the strength of his arguments urged the Court to set aside the judgment of the trial Court, and to award the Appellant’s claims against the Respondents.

Responding to the issues, A.I Ekama (mrs) learned counsel for the Respondents, premised upon the three issues formulated by her; and on the first issue, whether the learned trial judge was right when he held that the Appellant has failed to establish his claim to the land in dispute on preponderance of evidence, submitted that the trial Court performed its role creditably in evaluating and assessing the documentary evidence placed before it. Relying on the case of Sule Ayegwu & Anor. v. Aidoko Onuche (2009) NMLR page 1 at pages 8-9, submits that the trial Judge at pages 116 – 124 of the records meticulously and painstakingly assessed, appraised and evaluated, the oral and documentary evidence adduced by the Appellant before arriving at its conclusion. He contends that the description of the land by the PW 4 was totally at variance with Exhibit A, produced by the Appellants, and the PW 4 was not declared as a hostile witness. He also referred to Exhibits N – N5, where one Edo Alekhuogie stated therein that the land he helped the Appellant to acquire was not the same with the disputed land. In further contention, counsel states that owing to the apparent discrepancies between the oral evidence of the Appellant’s witnesses and the document Exhibit A, tendered by him, the trial Court had no option than to conclude that Appellant failed to establish the identity of the land over which he was seeking the declaratory order of the Court. Further still counsel argued that the Appellant by paragraph 15 of his amended statement of claim, and his evidence viva voce, stated that he contracted a surveyor who surveyed the land sold to him, and the Respondent having contended that the land sold to the Appellant is not the land in dispute, cast doubt on the evidence of the Appellant on the disputed land, and the Respondent having brought evidence from the said Edo Alekhuogie to the effect that the land he helped the Appellant to buy is not the land in dispute, and which evidence was not rebutted, knocked off the bottom of the Appellant’s case. He referred to the case of Olokunlade v. Ademiloyo (2011) 35 WRN 41 at 60 – 61, and Olohunde v. Adeyoju (2000) 14 WRN 160 at 181 – 182.

On the purport of Exhibits N – N5, counsel states that same was tendered to show what actually happened at the settlement meeting, being extracts of the minutes of the meeting as approved in the case of Nbamalu v. Mozie (2002) 2 NWLR (Pt 751) 345 @ 359.

On the issue relating to the Courts visit to the locus in quo, counsel states that the Appellant and the Respondent laid enough evidence before the trial Court on the issue of the identity of the land to enable the Court give judgment to that party with the most believable description. He goes on to state that there was no dispute on the land the Court would have gone to confirm. He cites the case of Akosile v. Adeyeye (2011) 22 WRN 147 at 169 per Uwa JCA. In further submission, counsel is of the view that the issue of visit to the locus in quo is being raised for the first time, without the leave of the Court. She prays on the authority of Pharma Deko Plc v. NSITFMB 35 WRN 70 at 92 to strike out the issue.

On the issuance of Certificate of Occupancy, counsel submits that same does not confer title to the holder. He places reliance on the case of Olohunde v. Adeyoju (supra), and Atanda v. Iliasu (2013) 18 WRN 1 at 29. He posits that the certificate was issued based on documents that was submitted, but the actual land was never inspected to confirm. He further on the issue of perversity submits that the judgment passed the litmus test laid down by the Supreme Court in the case of Mini Lodge Ltd & Anor. V. Chief O.O. Ngei (2010) 10 WRN 58 at 92.

Arguing the second issue formulated for the Respondent, that is whether the Respondent established her counter claim to the land in dispute on the preponderance of evidence, counsel seeks to incorporate her submissions on issue one to this issue, and submits that the Respondent established a better title to the land in dispute, and relying on the case of Atanda v. Iliasu (supra), counsel states that by virtue of the oral and documentary evidence rendered by the Respondent, the ownership of the land can be said to have been proved since Appellant failed to put up any defense to the counter claim.

Counsel calls in aid the case of Ogbu v. Wokoma (2005) 14 NWLR (Pt.944) 138 – 139.

On whether the judge was right when he awarded N500, 000 as special and general damages, counsel submits that the Respondent has discharged the evidential burden entitling her to the costs awarded.

Having therefore carefully studied the arguments borne in the submissions of learned counsel on both sides, and having studied the records and the issues raised, I find the issues formulated by the Respondent more composite and therefore elect to consider the appeal based on those issues.

ISSUE ONE.

Whether, the learned trial judge was right, when he held that the Appellant has failed to establish his claim to the land in dispute on the preponderance of evidence.

It is trite that civil cases (as the one at hand) are determined upon the preponderance of evidence and balance of probability, as he who asserts must prove. It behoves the plaintiff in order to succeed to adduce reliable and credible evidence in support of the matter in controversy. See Chabasanya v. Joe Anwasi (2010) 10 NWLR (Pt.1201) 163; Sule Anyedwu v. Aidoko Onuche (2009) NMLR 1 @ 8-9.

I understand the Appellant’s complaint on the issue as being that the lower Court failed to properly evaluate the evidence adduced by the Appellant with regards to the identity and title to the land in dispute. This complaint pervades all the issues identified by the Appellant. The plaintiff on the authority of Adone vs. Iketubu (2001) 90 LRCN 2711 @ 2734 is right in stating that the land in dispute in any claim for declaration of title or entitlement to the grant of a statutory or customary right of occupancy to land is that parcel of land claimed by the plaintiff.

I also agree with the plaintiff in line with the authorities of Atedwadzo vs. Robert Kwesi – Adjei supra); Basil v. Fajebe (supra) and Babatunde v. Aladejana (supra) that where the identity and extent of the land is in issue, the test is whether a surveyor armed with the document will be able to produce an accurate plan of the land from the description given.

It is equally trite law that where the identity of the land is known to both parties and therefore not in dispute, the need for a survey plan becomes unnecessary. See Dakolo v. Dakolo – Rewane (2011) 198 LRCN 1 @ 21.

The Appellant’s case before the trial Court as rightly argued is built upon his pleadings at paragraphs 14 to 18 of the amended statement of claim; of particular interest is paragraph 15 thereof. It reads for emphasis as follows:-

15. That before acquiring and payment by the plaintiff, the plaintiff contacted one man called Mr Edo Alekhuogie of No. 1, Edo Street, Ekosodin Benin city to ascertain the authenticity of the land and the genuineness of the land. Mr Edo Alekhuogie obliged the plaintiff and they both entered the plaintiff’s vehicle to visit the plot. On reaching the plot, Mr Edo Alekhuogie pointed at it and told the plaintiff “that is the plot and it is dispute free” with these words the plaintiff was more interested to acquire the plot and he did acquire it and payment was made to purchase same. The deed of transfer was drawn up and executed and the said Mr. Edo Alekhuogie signed as a witness to the plaintiff. The deed of transfer dated the 18th day of July, 1993 would be founded upon at the trial.

The Appellant as plaintiff before the lower Court at pages 40 to 41 of the records testified along and in support of his pleading as produced above. He equally pleaded, tendered and relied on Exhibit A, as the survey plan conducted upon the land in contention. The Respondent on his part asserts that land acquired by the Appellant is not the land in dispute, and to back up the assertion, tendered Exhibit N, being the statement made by the said Edo Alekhuogie, wherein it was stated that the Appellant’s land is different from the disputed land.

The law is quite established as related by this Court in Olokunlade v. Ademiloyo (2011) 35 WRN 41 at 60- 61 per Abba -Aji JCA thus:

“it is trite law that before a declaration of title to land is granted, the land to which the claim relates must be identified with certainty and that it is the duty of the plaintiff in such a case to show the Court clearly the area of the land to which the claim relates, and if it is not so ascertained, the claim must fail. See Adeosun v. Jibesin (2001) 14 WRN 106; Nwogo v. Njoku (1990) 3 NWLR (Pt.140) 570 @ 581 the need to prove the identity of the land in dispute with certainty will arise in every case where the defendant joins issue with the plaintiff on the question of the identity of the land in dispute. In such cases the first duty of the plaintiff is to prove the boundaries and identity of the land with certainty, see Nwogu vs Njoku (supra) @ 579, Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208 at 220.”

See also Olohunde v. Adeyoju (supra) @ pages 181 – 182.

The learned trial judge at pages 116 of the record, on the question whether the plaintiff did identify the land in dispute with certainty, stated:

“Upon a close examination of Exhibit A, it is clear to me that it does not help the case made out by the plaintiff. It does not help in identifying the land the plaintiff claims to be his own.”

It is the clear and undisputable position of the law, that the evaluation of evidence is the primary function of the trial Court. The rationale behind this is that a trial Court is in a proper, better and vantage position to see, hear, take note and assess the witnesses and evidence to be given in support of the respective positions of the parties. The Court of Appeal with the vast powers bestowed on the Court by virtue of Section 16 of the Court of Appeal Act should resist the temptation of retrying the case upon the cold records of appeal placed before it. See Maigari v. Mailafiya (supra) at page 398 per Lawal Garba JCA.

The trial Court from pages 116 to 123 of the records of the Court of Appeal appraised and gave value to the oral and documentary evidence before it, and in my view correctly followed the due direction at page 117, where he said, it is not enough for the plaintiff to rely on survey beacons, as he tried to do in this case, the most important thing is to identify the land acquired from his predecessors in title. He goes on to say that, the plaintiff was the one who ordered the survey of the land he acquired from Bright Obasuyi to be made. It is therefore imperative that plaintiff must establish by clear evidence the land he acquired before he carried out the survey now reflected in Exhibit D.

The Appellant hinges his argument on the evidence of the DW 2 to the effect that Exhibits A, L and M relates to the same piece or parcel of land, and therefore wants this Court to hold that the said DW2 gave evidence against interest, and therefore aids the case of the Appellant.

This principle of the law as lay down in the case of Ojiegbe v. Okwaranyia (1992) 1 ALL NLR 605; Odi vs lyala (2004) 8 NWLR (Pt 875) 283, presupposes a situation where a witness called by a party gives evidence against that party. In the instant case, the DW 2 affirmatively asserted that Exhibits A, Land M refer and is for the same parcel of land which is the land in dispute. The point of contention however is whether the land being claimed by the Appellant as indicated by Exhibit A, is actually the land the Appellant bought from the Obasuyi brothers in view of the assertion by the Respondents that the land is not the same, and the evidence adduced by the Appellants PW 4 which is clearly at variance with the Appellants Plan in Exhibit A?. This has been made worst by the evidence of Edo Alekhuogie in Exhibit N, to the effect that the land sold to the Appellant, which sale he was a principal participant, drowned the case of the Appellant. In the circumstance, the evidence of the DW2 is unhelpful to the Appellant, and the trial Court was right in discountenancing same.

It is trite law that where there is oral as well as documentary evidence on any issue, the latter should be used as a hanger from which to assess the oral evidence. This is because, documentary evidence is said to be more reliable than oral evidence and is used to test the credibility of the oral evidence adduced. See the cases of Fashanu v. Adekoya (1974) ALL NLR 32 @ 37 – 38; Kimdey & Ors v. Military Governor of Gongola State & Ors. (1998) 2 NWLR (Pt.77) 445; Egharevba v. Osagie (2009) 18 NWLR (Pt.1173) 299.

In the instant case, the only oral evidence which set out to identify the land in dispute is the evidence of the PW4, the pointer in the Ward Plot Allotment Committee, which is evidently at variance with the documentary evidence identifying the disputed land in Exhibit A. The position of the law is that in establishing the identity of the land in dispute, the claimant has a duty of filing a detailed and accurate survey plan of the land showing the various features on such land sufficient to point to the clear boundaries thereof. See Aiyeola v. Pedro (2014) 13 NWLR (Pt.1424) 409; Emiri v. Imieyeh (1999) 4 NWLR (Pt.599) 442. From the deductions made by the trial judge, this Appellant failed to do, and thereby proved fatal to his claim for a declaration of the land. Having also looked critically at the pieces of evidence alluded to by the trial judge, I am of the view that the finding cannot be faulted, and I so hold.

On the Appellant’s complaint on the non-visit to the locus in quo by the trial judge, the general principle as to when it is appropriate for a judge to visit the locus in quo, has been stated by the Supreme Court in the case of Anyanwu v. Mbara (1992) NWLR (Pt.242) 386 in the following words:-

“It is a course which a Judge can take only with due caution, with full advertence that to the fact that as he is not a party to the case, it is belief for one of the parties to apply for it.

But where from the quality and quantity of the evidence called by both parties he finds himself in such a position in which without supplementing what he had heard with what he can see, he can only accredit one version of the conflicting evidence and discredit the other mechanically, he should bring to the notice of the parties the need for a visit to the locus and get their consent or acquiescence to it”

It appears to me that the lower Court as posited by the learned counsel for the Respondent, believed the description of the land as adduced by the Respondent, thus disbelieving the evidence proffered by the Appellant, and felt no need to visit the locus. The object and purpose of a visit to the locus is to enable the Court avail itself and to see the objects, features and other places referred to from the oral evidence adduced, so as to clear any lingering doubts arising from the conflicting pieces of evidence rendered.

See Akosile v. Adeyeye (2011) 22 WRN 147 at 169. Moreover as rightly argued by the Respondents, the issue of the visit to the locus was never an issue before the lower Court, nor does it flow from the judgment. I do agree with the learned counsel that such constituted raising a fresh issue on appeal, and for which no leave of this Court was sought for, nor obtained. Upon the authority of Pharma Deko Plc v. NSITFMB (2011) 35 WRN 70 @ 92 per Kekere – Ekun JCA (AHTW), qualifies to be struck out, and it is hereby struck out.

The issuance of a Certificate of Occupancy does not automatically vest on the holder title to the land described therein. It is at best only a prima facie evidence of such right, interest or title without more, and may in appropriate cases be effectively challenged and rendered invalid and ineffective. This has been the established position of the law in a plethora of authorities including Olohunde vs Adeyoju (supra) at page 184; Lababedi v. Lagos Metal Industries (Nig) Ltd (1973) 1 SC 1 @ 6; Mogaji vs. Cadbury (1985) 2 NWLR (Pt.7) 393; Kyari v. Alkali (2001) 11 NWLR (Pt 724) ; Atanda v. Ifiasu (2013) 18 WRN 1 @ 29, per Ogunbiyi JSC; Dakan & Ors vs. Asalu & Ors (2015) LPELR – SC.64/2005.

The Respondent having successively proved a better title to the disputed land, the Certificate of Occupancy issued to the Appellants loses its value and efficacy, and the lower Court is right to have set it aside. The argument by the Appellant on the issue is not available to him. From the foregoing deductions made, the judgment of the lower Court cannot be said to be perverse. This is because the findings are premised on the evidence before it, upon proper consideration of all that was adduced by the parties. The reliance of the trial Court upon the statement attributable to one Edo Alekhuogie in Exhibit N, and N – N5 has been extensively analyzed by the trial Judge at pages 119 to 122 of the records, to the conclusive effect that the witness, stated that the land bought by the Appellant is not the same with the land in dispute.

Curiously the Appellant failed to rebut this vital piece of evidence by no less a person than the man who the Appellant alleged showed him the land in the first place and also signed the sales agreement. From all the deductions so far made on the issue, it is my arid view that the trial judge was right in holding that Appellant failed to establish his claim to the land in dispute as required by law. This issue is resolved in favor of the Respondent.

ISSUE 2.

Whether on the evidence adduced at the trial Court, the Respondents established her counterclaim to the land in dispute on preponderance of evidence. It is trite that a counterclaim is a distinct claim by itself.

The plaintiff in the instant case, failed to react to the counterclaim filed.

The position of the law is that where a plaintiff fails to file a defense to a counterclaim, which is a separate action, the effect is exactly the same as that of a defendant in a normal action who fails to file a statement of defense. See Oke v. Aiyedun (1986) 2 NWLR (pt 23) 548.

In a claim for declaration of title to land, it is the duty of the plaintiff and counterclaimant to establish with certainty and accuracy the identity of the land upon which his claim is founded. This is a condition precedent to the success of the claim. It follows therefore that where a claimant fails to give the exact extent and identity of the land he is claiming, his action stands to be dismissed. See Okunade v. Olawale (2014) 10 NWLR (Pt.1415) 207; Otanma v. Youdubagha (2006) 2 NWLR (Pt.964) 337; Dada v. Dosunmu (2006) 18 NWLR (Pt.1010) 134. The trial Court gave serious consideration to the issue, considering the fact that Respondent’s mother was the original allotee of the land by virtue of Exhibit K, who then prepared Exhibit L. the learned judge also considered the fact Respondents testimony as to how the land devolved upon her was not challenged, nor her testimony discredited. I am at one with the lower Court in that in the instant case, the counterclaimant now Respondent pleaded and tendered the Oba’s approval to the disputed land. She also gave evidence as to how the land devolved upon her, and clearly and by Exhibits L and M showed the extent and the identity of the land to which her claim related.

The plaintiff was not able to fault the description of the land as adduced by the Respondent; the case for the counterclaimant must in the circumstance prevail. See Samson Owie v. Ighiwi (2005) 5 NWLR (Pt.917) 184. I totally agree with the trial judge as well as the Respondents counsel that the Respondent duly proved her entitled to the declaration of the disputed land as required by law. I rule in favor of the Respondent.

ISSUE THREE

Whether the trial judge was right when he awarded N500,000.00 (five hundred thousand naira) as special and general damages to the Respondent.

The Appellant’s complaint with respect to this issue is that the award of damages for trespass against the Appellant who is the owner and exercising possessory right having planted 10 palm trees on the land is erroneous, oppressive and in fact based on an extravagant estimate. The trial Court still at 124 to 125 of the records, considered the issue under consideration, to the ultimate conclusion that same was proved. I do not see how I can fault the lower Courts consideration of the issue. Evidently, there is evidence by the Respondent in support of her pleadings, which was not challenged by the Appellant. The Appellant failed to lead any evidence to contradict the evidence led. In the absence of such contradictory evidence, as asserted on Ogbu v. Wokoma (supra), the trial Court, having found that title to the land in dispute rests with the Respondent, was right to have awarded the damages as claimed. This issue likewise is determined in favor of the Respondent.

Hence having determined all the issues in favor of the Respondent, the appeal fails as that lacking in merit and it is hereby dismissed. The decision of the lower Court in suit No. B/149/01, between Prince Matt Owobu vs. Mrs Alice Osifo, delivered on the 9th of February, 2010, in which the Appellants claim for declaration of title to land, damages and an order for perpetual injunction was dismissed, and the counterclaim succeeded and judgment entered for the Respondent is hereby affirmed.

OWOADE, JCA

I had the privilege of reading the draft of the lead Judgment just delivered by my learned brother, HAMMA AKAWU BARKA, JCA and I agree with the reasoning and conclusion therein.

I also affirm the Judgment entered by the lower Court.

UWA, JCA

I read before now the draft of the judgment delivered by my learned brother, HAMMA AKAWU BARKA, JCA, I agree with his reasoning and conclusion arrived at in dismissing the appeal for lacking in merit. I dismiss same and abide by the order made as to costs in the leading judgment.