➥ CASE SUMMARY OF:
Ikeleve Daagir Ityavkase Ikyereve V. Joseph Kwaghkar (CA/J/45/97, 15 November 2004)
by Branham Chima.
➥ ISSUES RAISED
Boundary of land in dispute.
➥ CASE FACT/HISTORY
At the trial court, the plaintiff (respondent herein) sued the two defendants (now appellants) claiming a declaration of title of a land and also for an order ejecting the second defendant from the disputed land. Both defendants (appellants) denied the claim by the plaintiff/respondent. During the hearing at the trial court, the court heard witnesses for both parties and even visited the disputed land and the minutes it took during the visit formed part of its proceedings.After it considered the entire evidence adduced at the trial, the court made its finding on the demarcation of the land which was the bone of contention of both parties. In the end, it gave judgment in favour of the plaintiff/respondent and finally ordered the appellants/defendants to vacate the disputed farmland for the plaintiff/ respondent. The appellants became dissatisfied with the decision of the trial courtand thereupon appealed to the lower court i.e. the Benue State High Court of Appeal sitting in Katsina-Ala in its appellate jurisdiction. After hearing the appeal, the lower court in its reserved judgment delivered on 7/12/94 dismissed the appeal by the appellants and affirmed the decision of the trial court.
This is an appeal against the decision of the Benue State High Court (hereinafter referred to as “the lower court or court below”) sitting in its appellate jurisdiction (coram Eko and A. Onum, JJ) in suit No: KHC/40A/93 dated 7th December, 1994 wherein it affirmed the decision of Area Court Grade I, Tor Donga A (hereinafter referred to as “the trial court”) in suit No: CVT/55/93 dated 16th November, 1993.
The two appellants herein were the defendants at the trial court while the respondent herein was the plaintiff thereat.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the Claimant/Respondent proved the identity of the land?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[CLAIMANT/RESPONDENT ESTABLISHED THE IDENTITY OF THE LAND IN DISPUTE
‘In the instant case, the respondent/plaintiff when testifying at the trial court stated thus:- “My boundary with the defendants is on the followingf eatures Yiase tree, next to it are about three chahe trees standing in one place…” See page 2 lines 9- 34of the record. The respondent was not cross-examined by the appellants on this piece of evidence. Also, PW1 on page 3 lines 9 – 10 gave his evidence wherein he said inter alia , that “Ikpur Agene is the place where the plaintiff and defendants used to farm and verge at”. Also the same witness under cross-examination stated thus “No, Yiase tree is there and chaha” That was in response to a question by the 2nd defendant as to whether it was only “Ikpur Agene that was on the disputed land. From the above testimonies, it will not be correct to say that there was inconsistency in the testimonies of the plaintiff/respondent on one hand and that of the 1st PW on the other. The PW1 merely added “Ikpur Agene as additional feature in addition to those already mentioned by the plaintiff/respondent. There is therefore no conflict whatsoever.’
‘Now, coming to the testimony of PW2. He testified on page 3 of the record that he used to help the plaintiff’s father to work on the disputed land. When cross-examined by the 2nd defendant/appellant on what formed the boundary, he replied that “it is Zwa-Agerenyi.” It seems to me that all the features given by the parties were given in the local language which the trial court must have duly understood before it arrived at its conclusion. The appellants did not make effort either here or at the lower court to show that the names of the features given were different or that the features given by the said witnesses were actually conflicting. Also as I said above, the trial court visited the disputed land in company of both parties. At the locus in quo , the respondent/plaintiff gave or showed the disputed land in the presence of the two defendants/appellants and none of them denied it was the land in dispute. This piece of evidence plus the ones given by the plaintiff/respondent and his two remaining witnesses (PWs1 and 2) must have reinforced the belief of the trial court when it stated as follows:- “There at the locus , we saw all those things ourselves and the next tree was Kumenduur though not mentioned in the court was on the line.”’
‘In this instant case, I am not in agreement with the submissions of the learned counsel for the appellants that the finding of the trial and lower courts are perverse in view of the evidence adduced by the plaintiff/respondent which clearly and unequivocally showed or established the actual and correct boundary of the disputed land. Those pieces of evidence were neither contradicted nor challenged by the defendants/appellants. I also did not see any material inconsistencies in the plaintiff’s witnesses evidence as would justify this court to interfere with or upturn the decisions of the two courts below.’]
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✓ DECISION:
‘Thus, with the resolution of the sole issue in this appeal in favour of the respondent,the appeal is adjudged unmeritorious. It ought to fail and it is hereby accordingly dismissed. The judgment of the lower court (High Court of Benue State sitting in its appellate jurisdiction) affirming the decision of the trial court (Area Court Grade I, Tor Donga) is hereby affirmed. Costs follow event, so I award N10,000 cost against the two appellants in favour of the respondent.’
➥ FURTHER DICTA:
⦿ WHERE APPELLANT FAILS TO FILE REPLY BRIEF, IT WILL BE DEEMED ADMITTED
Where a respondent raises new issue in his brief of argument, the appellant is supposed to file a reply brief thereto and if he fails to file such a reply brief within 14 days of service of such respondent’s brief of argument, the court will deem it that he has conceded all the new issues/points contained in the respondent’s brief of argument. See Order 6, rule 10. See also the cases of Ayalagu v. Agu (1998) 1 NWLR (Pt. 532) 129; Lori v. Akukalia (1998) 12 NWLR (Pt. 579) 592; Chukwuogor v. Att.-Gen., Cross River State (1998) 1 NWLR (Pt. 534) 375; Ekpuk v. Okon (2002) FWLR (Pt. 84) 145, (2002) 5 NWLR (Pt. 760) 445. — Sanusi JCA.
⦿ LEAVE MUST BE SOUGHT TO RAISE NEW ISSUE NOT CANVASSED AT THE LOWER COURT
Both parties right at the trial court through to the court below, only canvassed arguments on issue of boundary and not on the root of title from which the plaintiff claimed ownership of the disputed land. Ground No. 3 is therefore a new issue as it was not dealt with by the courts below and by the parties or canvassed by the parties in the two courts. In its judgment, the lower court found that the only issue fought by the parties at the trial court was that of boundary or demarcation of the land between the parties . The third ground of appeal filed by the appellant which introduced the issue of root of title is therefore a new issue which could only be introduced by the appellants with leave of this court since it was never raised at the two lower courts. The preliminary objection therefore succeeds with regard to the third ground of appeal only. — Sanusi JCA.
⦿ TO SUCCEED, CLAIMANT MUST PROVE THE IDENTITY OF THE LAND
It is settled law that in order to succeed in a claim for declaration of title, the plaintiff or claimant must prove or establish the identity of the land in dispute. He is duty bound to prove its exact areas, its boundaries and other features accurately. See Odiche v. Chibogwu (1994) 7 NWLR (Pt. 354) 78; Arabe v. Asanlu (1980) 5 – 7 SC 78; Oke v. Eke (1982) 12 SC 218; Fabunmi v. Agbe (1995) 1 NWLR (Pt. 2) 299; Odofin v. Oni (2001) FWLR (Pt.36) 807, (2001) 3 NWLR (Pt. 701) 488; Ojo v. Adeleke (2002 ) FWLR (Pt. 87) 716, (2002) 8 NWLR (Pt. 768) 223 at 224. It is also settled that where parties own a land on a common boundary, it is necessary to show and prove the exact boundary feature along that common boundary. — Sanusi JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Sanusi JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
