IN THE CUSTOMARY COURTS: DELTA STATE OF NIGERIA

IN THE ETHIOPE EAST AREA CUSTOMARY COURT II

HOLDEN AT ABRAKA
ON THURSDAY THE 28TH DAY OF NOVEMBER, 2023.
BEFORE: (1) HIS HON. IGHOTA OROWO GLORIA ESQ.CHAIRMAN GD II
(2) MRS.THERESA UVIEGHARA 1ST MEMBER
(3) DR.CHARLES EVWARAYE 2ND MEMBER

Suit No. EEACCII/98/2020

CHIEF RICHARD OTUKUEKU …………………….………… PLAINTIFF

AND

DANIEL KWAKPOVWE …….....…………..………….... DEFENDANT

JUDGMENT
The Plaintiff initiated this suit against the Defendant in this case, in a representative capacity as
the head of the Otukueku family of Eku, vide a claim, dated and filed on the 9th day of September,
2020, wherein he prayed this court for the following reliefs:

1. A Declaration that the Plaintiff is the beneficial owner and in possession of all that
piece/parcel of land measuring approximately 250 acres of land, lying, situate and being at
Okorode bush, along Eku/Echi Road in Eku, by the right hand side when going from Eku
to Echi Village and inwardly to Okorode Bush/the whole of Okorode bush in Eku, and
therefore entitled to Customary Right of Occupancy over the said piece/parcel of land in a
place within the jurisdiction of this Honourable Court.
2. The sum of One Million Naira (N1, 000,000.00) only as general damages against the
Defendant and in favour of the Plaintiff, as a result of the Defendant’s trespass/continuous
trespass unto Plaintiff's land without his consent and authority in an area measuring 50
plots of land measuring 50 ft by 100 ft each, which is within Plaintiffs 250 acres of land.
3. An order of perpetual injunction to restrain the Defendant, his Privies, Servant, Agents,
Workmen and all persons wrongly claiming title through or under him not to
trespass/continuous trespass as regards to the Plaintiff entire land thereto, that is owned by
the Plaintiff and stated in reliefs 1 and 2 above.

Both parties led evidence and called witnesses in proof of this case.

The Defendant tendered Exhibits “A” and “B” in course of the proceedings.

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Exhibit “A” is an Arbitration Award delivered at the Eku Traditional Council, Eku, Ethiope East
Local Government Area of Delta State, while Exhibit “B” is a Deed of Conveyance.

The Plaintiff testified as PW1 and PW2 was called by the Plaintiff.

The defendant testified as DW1 and DW2 was called by the Defendant.

THE PLAINTIFF’S CASE

The Plaintiff as PW1 was sworn on the Holy Bible and he led evidence in English Language.

It is the case of the Plaintiff that he is a businessman and that the reason why he filed this suit
against the Defendant is because, the Defendant trespassed into his grandfather’s land which is
located at along Echi Road, Eku, in Ethiope East Local Government Area of Delta State and that
the land trespassed into by the Defendant is 250 acres. The Plaintiff described the location of the
land trespassed into by the Defendant as, backing the Magistrate Court at Eku, at the front, is the
land in dispute. That the land has boundaries with the Echeroko shrine road and that on the left,
before Echi, there is an Earth road that runs through to Orhono village in Echi, and at the end of
the road is Echeroko shrine and at the front is Echi Road.

It is the case of the Plaintiff that his grandfather Otukueku deforested the Land in dispute. That
Otukueku, after the deforestation, planted cocoyam, plantain, rubber trees, palm trees, cassava and
that he also gave some parts of the land to some people to farm on. It is the case of the Plaintiff
that his grandfather, Otukueku, who deforested the land in dispute, had 2 sons, namely; Chief
Agitemi Otukueku and Samuel Usiokolo Otukueku. It is further the case of the Plaintiff that upon
the death of his grandfather, his father (Chief Agitemi), took over the control and management of
the properties belonging to his grandfather and that he continued from where his father stopped. It
is the case of the plaintiff that, when his father died, his uncle, the younger brother of his father
(Samuel Usiokolo Otukueku), took over the control and management of his grandfather’s land,
being the oldest male child and head of the Otukueku family and that his uncle inherited the land
of his grandfather, that his Uncle, Samuel Usiokolo died in 2011 and the management of the
properties of his grandfather devolved on his older brother, Peter Otukueku, since he was the next
oldest male child of the Otukueku family after the death of his uncle. It is further the case of the
Plaintiff that his older brother Peter Otukueku, while he was the head of the Otukueku family, was
a civil servant and for that reason, Peter Otukueku appointed him to manage their grandfather’s
land and that consequently, he, the Plaintiff, started farming on the land in dispute. It is the case
of the Plaintiff that upon the death of Peter Otukueku in 2016, he became the head of Otukueku
family of Eku and that automatically, the control and management of his grandfather’s property,
devolved on him even though his uncle Usiokolo had children before his death. It is the case of
the Plaintiff that when his older brother, Peter Otukueku, took over management of the land, no
partitioning of the Otukueku family land was done between the Agitemi’s children and Usiokolo’s
children, that the two children of his uncle Usiokolo are Felicia Otukueku and Omote Moses
Otukueku and that presently, he is the head of the Otukueku family but he has not partitioned the
family properties between the children of Agitemi and Usiokolo.

It is the case of the Plaintiff that in 2019, he discovered that the Defendant trespassed in an area of
the Otukueku family land, called Okorode bush, measuring approximately 50 plots of 100ft by

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50ft, per plot. That he saw young palm trees, large palm trees and Cassava the Defendant planted
and he confronted him to find out who sold the land to him and that his reply was that, he is not
ready to listen to him.
It is further the case of the Plaintiff that there is a pending suit before the High Court of Justice
holden at Isiokolo judicial division, in respect to an Otukueku family land and the dispute is
between Omote Usiokolo and him, but that the dispute is yet to be decided by the Honourable
Court of Justice.

Under cross examination, the PW1, who is the Plaintiff himself, stated that he is currently the head
of the Agitemi family and also the head of the Otukueku family at large. Plaintiff also stated that
Omote Otukueku is the head of the Usiokolo family being the first son of Usiokolo. Plaintiff agreed
that the Agitemi family and the Usiokolo family are the two large branches/gates of the Otukueku
family. Plaintiff admitted that the said Omote Usiokolo Otukueku, filed a case against him at the
High Court of justice, Isiokolo Judicial division and that one of the claims against him in that suit
is that, he has sold all the land shared to his father, Agitemi Otukueku and he responded by filing
a Statement of Defense. Plaintiff explained further that Omote Otukueku alleges that the land
deforested by their grandfather has been partitioned between the two children of Otukueku
(Agitemi and Usiokolo) and that according to the partitioning as alleged by the said Omote
Usiokolo, the land on the left belongs to the Plaintiff’s father (Agitemi) and the land on the right
belongs to the Omote Usiokolo Otukueku’s father(Usiokolo). Plaintiff stated further that the said
Omote Otukueku alleges that he, the Plaintiff, has started selling their grandfather’s land but
Plaintiff denied selling any part of their grandfather’s land. Plaintiff further denied that he sold
portions of land on the right hand side, that the land he (Plaintiff) sold is on the left hand side and
that the land sold on the left, the said Omote Otukueku never challenged him. Plaintiff explained
that it is not true that he sold land on the right as alleged by Omote Usiokolo Otukueku and that
the claim against him at the High Court of justice, Isiokolo, is that he sold land on the right side
and not the land on the left side but that, that position of Omote Usiokolo in that suit, is incorrect.
Plaintiff affirmed that, the land sold by him was sold under the permission and authority of his late
elder brother, Peter Otukueku. Plaintiff stated that he prepared documents for the land sold by him
on the left hand side but Omote Otukueku did not sign on those documents he prepared for the
people he sold land to on the left even though Omote Otukueku is a principle member of the family
of Otukueku, being the head of Usiokolo family. Plaintiff continued that the documents he
prepared for the purchasers were Deeds of Conveyance.

The Plaintiff stated emphatically that he did not sue Omote Otukueku in this suit but he only sued
the Defendant because he trespassed into his grandfather’s land. That when he met the Defendant
on the land, the Defendant told him that Omote Otukueku sold the land to him and he confronted
Omote Otukueku before bringing this case before this Court.
The Plaintiff, still under cross examination agreed that, before Omote Usiokolo sued him at the
High Court of Justice, Isiokolo, he was summoned before the Eku traditional council based on a
complaint against him by Omote Otukueku. The Plaintiff pointed out that even though he is a
member of the Eku traditional council, he was not happy with the decision of the Eku traditional
council and that the decision of the council was that the land of the Otukueku has been partitioned
between Agitemi and Usiokolo. The Plaintiff agreed that the decision of the council was in writing
but he was not happy with the decision of the Eku traditional council hence he brought this case
before this Court. Plaintiff confirmed that he did nothing about the decision immediately after it

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was delivered, that even though he cannot remember the year it was delivered, the decision of the
council was given before he filed this case before this Court. Plaintiff stated that, it was after the
judgment at the Eku traditional council was delivered before Omote Otukueku filed a case against
him at the High Court of Justice Isiokolo.
Plaintiff further said that even though he was not in agreement with the decisions of the Eku
traditional council, that he had to challenge the decision, but the challenge was not done in a Court
of law. He said he never sued anybody based on the decision of the Eku Traditional council.
Plaintiff stated that at the Eku traditional council, witnesses were called before the decision was
reached/ arrived at by the Eku traditional council. Plaintiff affirmed that when he was summoned
by the council, he appeared and gave evidence. Plaintiff stated that he knows as a fact that he
cannot sell a family property alone but that it is true that Omote Otukueku never signed any
document prepared by him when he sold the land of their grandfather. That apart from the land in
dispute before this court and the land before the High Court of Justice, Isiokolo, Omote Otukueku
has never challenged him, nor bothered him about any other land of Otukueku family, he sold
before.

Plaintiff admitted that the Defendant in this case planted palm trees around the land in dispute and
that he first noticed them at the time Faith Emajemite’s campaign, for her first tenure, was on and
the said Faith Emajemite spent 6 years in her first tenure and she left office last year.

Plaintiff stated that he is 70 years of age and his grandfather Otukueku died when he was a child
and that was in 1982. The Plaintiff stated that under the Urhobo native laws and custom, after the
death of a man, his properties are usually shared amongst his beneficiaries.

PW2 was sworn on the Holy Bible and he stated that his name is Sunday Akpoede.

PW2 led evidence that the Plaintiff and Omote Usiokolo Otukueku are members of his family.
PW2 stated that the reason why the Plaintiff brought the Defendant to court is because of the land
of Otukueku, being the grandfather of both the Plaintiff in this case and Omote Usiokolo Otukueku.
It is the case of the PW2 that Otukueku begat Agitemi and Usiokolo, that, Agitemi is the father of
the Plaintiff and Usiokolo is the father of Omote Usiokolo Otukueku. PW2 described the location
of the land in dispute as being at Oku-Echi road, Eku. That, facing Oku-Echi road, the land on the
right belongs to Otukueku and the land on the left belongs to Ejeboro and facing Echi road, the
land has a boundary with Echi Road. That the land is bounded on the right by Echoroko road, by
the left is Oku-Echi village, by the left there is a road that runs off Echi road to Orhono village that
is before Echi village and that this said road has boundary with the land in dispute. It is the case of
the PW2 that there is also Okpeki tree as a boundary and Echeroko shrine also as a boundary.
It is the case of the PW2 that the land was deforested by Otukueku who planted palm trees, rubber
trees, cassava and he hired other portions of the land to strangers. It is the case of PW2 that
Otukueku who founded the land is late and after his death, Agitemi held the land because he was
oldest. That after the death of Agitemi, Usiokolo, the next to Agitemi, being the head of the family
after the death of Agitemi, took over management of the Otukueku family properties, and that
Usiokolo planted cassava and other crops on the land. It is the case of the PW2 that upon the death
of Usiokolo, Peter Otukueku inherited the land that Peter Otukueku is one of the children of
Agitemi and a grandchild of Otukueku. It is the case of PW2 that while Usiokolo was alive, he had
children and that Agitemi’s children and Usiokolo’s children inherited Otukueku family land. It is

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further the case of PW2 that after the death of Usiokolo, Peter Agitemi Otukueku became the head
of the family. It is the case of PW2 that Richard Otukueku, the Plaintiff, became the head of the
family after the death of Peter Agitemi Otukueku.

PW2 led evidence that after the death of Agitemi and Usiokolo, no one shared or partitioned the
land amongst the Agitemi and Usiokolo’s children and presently, no one has shared the land
between the Plaintiff and Omote Usiokolo. It is the case of PW2 that he is aware that Omote
Usiokolo Otukueku summoned Chief Richard Otukueku to the Eku traditional elder’s council, Eku
and the reason he summoned the Plaintiff was because of the land of Otukueku and that they went
to the council’s meeting of the Eku traditional council but they were asked to take the case to their
family meeting. It is the case of PW2 that Omote Otukueku was called to the family meeting on 3
occasions but he refused to attend and that the decision of the family was that they know who the
land was sold to; they should take them to court to recover their land. PW2 led evidence that Chief
Richard Otukueku, the Plaintiff never sold a part of the land allegedly shared to his father that he
knows the part Omote sold from the land and it is on the left hand side and that the family never
permitted Omote to sell that land.

Under cross examination, the PW2 stated that he is aware that the said Omote Usiokolo Otukueku,
sold the land in dispute to the Defendant in this case. He admitted that the Plaintiff and Omote
Otukueku, are cousin and that Otukueku, who deforested the land in dispute is their grandfather
and that apart from the land in dispute, their grandfather also deforested other lands. That Agitemi,
one of the sons of Otukueku, is the Plaintiff’s father, while Usiokolo, the second son of Otukueku,
is Omote’s father. PW2 admitted that Omote Usiokolo Otukueku took the Plaintiff to the Eku
traditional Council and that the said Eku traditional council is responsible for settlement of disputes
in Eku, Ethiope East Local Government Area of Delta State. PW2 admitted further that the Plaintiff
is a Chief of the Eku Traditional Council but that even though the Plaintiff is a Chief and member
of the Eku traditional to the Council, he was summoned by the council. PW2 stated that the Eku
traditional Council heard from both parties and eventually asked the Plaintiff and the said Omote
Otukueku to go home and settle their dispute within their family that the Eku traditional Council
never gave judgment in that dispute. PW2 agreed that the dispute before the Eku traditional
Council and the judgment delivered by the council are usually in writing but he denied that the
Council ever delivered a judgment in the dispute, more so in favour of the Defendant but that the
council only asked them to go home and settle the matter”.
PW2 admitted that Omote Usiokolo instituted an action at the High Court of Justice Division
against the Plaintiff in this case.
PW2 admitted to be vast in the Urhobo native law and custom and that according to the Urhobo
Custom and tradition, when a land has been shared, a person to whom it was shared has a right to
dispose of that land by selling it. That also, according to the Urhobo native laws and custom he
knows that only one person cannot sell a land. PW2 admitted that the Plaintiff in this case sold
only 2 lands and it was done when Peter Otukueku, the older brother of the Plaintiff and then most
senior man in the family was still alive and that they were looking for money to take the said Peter
Otukueku abroad for treatment. That when the Plaintiff informed the family about the position of
things, they instructed him to sell 2 plots of land and use the proceeds of sale, to take Peter abroad
for treatment but that Peter didn’t survive the ailment. PW2 further explained that the second land
sold was during the reign of Peter as the head of the family that Peter had a Court matter and the

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family also approved the sale of that land. PW2 admitted that Omote never signed any document
because the two lands, the family gave consent and permission for their sale.
PW2 admitted that he is aware that only one person cannot sell land which belongs to two gates.
PW2 emphasized that it is not correct that the Plaintiff sold those land of his own will and decision
but he was instructed to do so by the family.

THE DEFENDANT’S CASE

The Defendant as DW1 was sworn in on the 20th day of February, 2023 and he said he is retired
from the United Kingdom as a health worker but he is currently a farmer.

It is the case of the Defendant that he really does not know the Plaintiff but he has been seeing him
since the case before this Court began. Defendant said that he knows the land in dispute but that it
is not correct that the land in dispute, in respect of which the Plaintiff brought him to court, is 250
acres. It is the case of the Defendant that he is not from Eku but that his wife is from Eku and he
got to know the land through the Agent of the family of Usiokolo. It is the case of the Defendant
that he bought the land in dispute from Omote Usiokolo, after carrying out some investigations on
the land. The Defendant stated that during the investigation which he carried out before he bought
the land, he found out that Omote Usiokolo was the head of the Usiokolo family and a decision of
the Eku traditional Council was presented to him and that was how he discovered that the land is
indeed a genuine land. The Defendant stated that the decision was in writing and it was not in
respect of the portion of land Omote Usiokolo offered to him to buy but it was an Otukueku land.
The Defendant stated further that after the payment of money, the transaction between Omote and
him was reduced into writing being a deed of conveyance that was signed by the four different
gates of the Usiokolo family. It is the case of the Defendant that he confirmed that the Plaintiff had
his own portions of land, different from the portion of the person he bought from.

The decision of the Eku traditional Council, regarding the dispute between Omote Usiokolo
Otukueku and Richard Agitemi Otukueku (Plaintiff in the instant suit) was tendered through the
Defendant and it is Exhibit “A” in this Suit.

Deed of Conveyance attached to a survey plan, evidencing the purchase of land by the Defendant
from the Usiokolo family was also tendered as Exhibit “B” in this case.

It is further the case of the Defendant that after he bought the land from the Usiokolo family, he
took possession of the land. That there were cassava crops on the land and he waited for the crops
to mature and for the harvest of the crops that after the crops were harvested, he got some worker
to dig around the land as a demarcation and he planted palm seedlings on the land in 2018. It is
the case of the Defendant that neither the Plaintiff nor anybody stopped him from working on the
land. The Defendant’s further evidence is that the land was bought by him in 2018 and in the early
part of 2020, the Plaintiff followed him surreptitiously and stealthily into his compound and said
some words to him and his only reply to the Plaintiff was that he never bought land from him;
thereafter, the Plaintiff summoned him before this Court. Defendant urged this Court to grant an
injunction against the Plaintiff and dismiss the Plaintiff claim.

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Under Cross Examination, the Defendant admitted that he knows Echi road and he described it as
when backing the Magistrate Court, the land is located there. Defendant admitted that from his
investigation carried out before he bought the land in dispute, he did not get the history of the land
and did not know the grandfather of Omote Usiokolo deforested the land but he is now aware that
the Plaintiff and Omote Usiokolo are from the same family and are grandchildren of Otukueku
who deforested the land. Defendant said he only discussed with the Plaintiff once before he came
to Court, but he did not bother to ask him who he was in the family line.
Exhibit “A” was shown to the Defendant but he explained that he did not ask Omote Otukueku to
know what the Plaintiff did regarding Exhibit “A”.

The Defendant admitted that Omote Otukueku did not show him what was shared to the Plaintiff
even after the said Omote Otukueku told him that the family land has been shared. Defendant
confirmed that on the Exhibit “A” there was nothing like Agitemi or Usiokolo family on it, only
the Otukueku family but that he was more interested in the content of the document rather than the
form of the document and he saw no need to interview Omote Usiokolo Otukueku about the head
of the family of Otukueku because the document to him was explicit enough and there was no need
for further explanations and he is only just hearing that the Plaintiff is the head of the family of
Otukueku of Eku. Defendant admitted that he is aware that the Plaintiff being the head of the
family signed no column on the Deed of Conveyance prepared for him, which evidenced his
payment for the land is dispute.
Defendant said it is correct that the Plaintiff did not sue him in respect of 250 Acres of land but he
said that he rather sued him in respect of 50 plots of land measuring 50ft x 100ft per plot. Defendant
denied that he lied when he said that he only just met the Plaintiff and explained that he met the
Plaintiff once before this matter commenced before this Court.

DW2 was sworn on the Holy Bible and he stated that his name is Omote Usiokolo Otukueku

It is the case of DW2 that the Plaintiff is his cousin and that the Plaintiff’s father and his father are
half-brothers of the same father but different mothers. It is the case of DW2 that his father’s name
is Usiokolo while the Plaintiff’s father’s name is Agitemi. DW2 stated that, Otukueku, the father
of Agitemi and Usiokolo deforested the land in dispute. It is the case of the DW2 that he knows
the Defendant and that he sold plots of land (the land in dispute), to the Defendant. It is the case
of the DW2 that he is the head of the Usiokolo family and the Plaintiff is the head of Agitemi
family and also the head of the Otukueku larger family. It is the case of DW2 that even though the
Plaintiff is the head of the Otukueku family, the Plaintiff has not filed this suit on behalf of the
Otukueku family. It is the case of DW2 that Otukueku, being their grandfather begat Agitemi and
Usiokolo, that Agitemi is the Plaintiff’s father while Usiokolo is his father.
It is the case of DW2 that his grandfather Otukueku had other land apart from the one in dispute
and the entire grandfather’s land have being shared between Agitemi and Usiokolo. It is the case
of DW2 that the land of Otukueku was shared by his extended family which is the Eruotor family.
It is the case of DW2 that according to what his father Usiokolo told him, Akpoede and Akpovwara
of the Eruotor family, shared the land as representatives of the Eruotor family and that Akpoede
and Akpovwara are brothers of his grandfather, Otukueku.
It is the case of DW2 that apart from the land in dispute, Otukueku has land at Okorode bush,
along Oku Echi road, that another land is at Obukohwo bush also in Eku, another land is at Ejokpa

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bush and the one in Ejokpa bush is the one in dispute and finally, that there is one in Ikpotogri
bush in Eku.
It is the case of DW2 that according to his father Usiokolo, the land at Okorode was shared between
the two brothers, Agitemi and Usiokolo and that a foot path divided the land into two, that one
side of the land, the left, belongs to one brother (Agitemi) and the other side, the right, belongs to
the other brother (Usiokolo). It is the case of the DW2 that the land at Ikotogri was shared to
Agitemi and the other land which is at Edokpa was shared to Usiokolo, that the land at Obukohwo
was shared to Agitemi, because he was the older son of Otukueku. It is the case of DW2 that
according also to his father, the only property of Otukueku which has not been shared is the
Otukueku family compound, located at NEPA junction, Eku. It is further the case of DW2 that to
his knowledge, the two brothers, Agitemi and Usiokolo were satisfied with the sharing especially
as there were no complaints from them and they grew up without any issues emanating from the
sharing of the land. It is the case of DW2 that the land shared to his father, Usiokolo, they farmed
on it and there was no trouble until now, that the Plaintiff has never disturbed them while they
were farming on the land and that the Plaintiff never disturbed his father. It is the case of DW2
that after the death of his father and the father of the Plaintiff, the Plaintiff, Richard Otukueku
started selling Agitemi’s portions of land, that he, DW2 (Omote Otukueku), never signed on the
documents, that is, the deals of conveyance for the sale of the lands of the Plaintiff’s father, either
as a witness or as one of the vendors of the lands. The DW2 said that after selling Agitemi’s
portions of land, the Plaintiff started selling portions partitioned to Usiokolo, his father.
It is further the case of DW2 that the Plaintiff was summoned before the Eku traditional council
(the Oghwa) and at the Oghwa, they made their case known and the Oghwa sent delegates to look
into the matter. That the Oghwa visited the land in dispute and after their investigations, reports
were made to the council and they reached a verdict, which was that, the Plaintiff should stay away
from the land and refund the money he collected for the sale of the land. It is the case of the DW2
that the Plaintiff agreed with the decision of the Oghwa immediately after the decision was taken
but after sometime, the Plaintiff encroached into the land again. It is the case of the DW2 that he
went back to the Oghwa and reported the incident to them that in response to the report, the Oghwa
removed/ stripped the title of Chief from the Plaintiff, that is, they disrobed him as a chief of the
Eku council.
It is the case of DW2 that he sued the Plaintiff after that, at the High Court of Justice, Isiokolo
Judiciary Division, but that the land of which he sued the Plaintiff at the High Court is different
from the land in dispute before this court. It is the case of DW2 that he sued the Plaintiff and those
he sold to.

DW2 identified Exhibit “A”.

It is further the case of the DW2 that the Land the Plaintiff sold to the co-defendants in the case
before the High Court of justice, Isiokolo Judiciary Division, which case arose from the defiance
of the Plaintiff to the decision in Exhibit “A”, he, the DW2 did not sign the deed as a vendor nor
as a witness. DW2 said the land in dispute in the case before this Honourable court was a part of
the land shared to his father and he prepared a deed of conveyance for the Defendant after he sold
the land to him and DW2 identified the Exhibit “B”.
It is the case of DW2 that the land in dispute which he sold to the Defendant in this Case is at
Ejokpa bush that one can pass through Orhono or Oku-Echi, that is, Echi Village to get to the Land
in dispute.

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Under Cross Examination, DW2 affirmed that the land in dispute is close to Eku Magistrate Court
and that one will pass Eku Magistrate Court to the land in dispute in Edokpa bush, and that backing
the Magistrate Court, there is a road leading to the land in dispute and that is Edokpa bush. That
the land through which one takes to Edokpa bush is Okorode road, that when standing on Okorode
bush, the land by the right is his father’s land but that is not the land in dispute in this case, that
the land in Okorode bush by the left was shared to Agitemi. DW2 admitted that the land he sold is
along the left hand side of the Ejokpa bush but that it is not the same area as the first land sold by
the Plaintiff which is at Okorode bush. DW2 further admitted that Ejokpa bush is far from Echi
road and not at Echi village, that Edokpa bush is not Orhono bush. DW2 denied that Ejokpa bush
is close to Echi road, Eku, that it depends on the road taken to the Ejokpa bush, that will determine
whether it is far from Echi village or not.
DW2 further admitted that the land the Plaintiff sold in the case before the High Court, Isiokolo,
is at the left hand side of Okorode bush and that the head of the Otukueku family is the Plaintiff in
this case, Richard Otukueku. DW2 explained that at first, the Plaintiff agreed with the Exhibit “A”,
that was immediately after the judgment was delivered but after four months, the Plaintiff returned
back to the council and rejected their judgment and this made the council strip him of his title as
Chief in the Community.
DW2 admitted that it is correct that the land in Exhibit “A” is different from the Land in dispute
in the instant case but that Exhibit “A”, is the Eku traditional Council’s decision on another land
but he had made the Exhibit “A” available to the Defendant in this case and to this Honorable
Court because it was one of Otukueku’s lands partitioned to his father, Usiokolo and that this case
is similar to that before the High Court, Isiokolo. DW2 further said that the land in dispute is not
opposite the land being decided on by the Eku traditional council. The DW2 explained further that
when the Defendant in this case asked him whether the land which he was about to purchase from
him and now in dispute before this court, is the same land which he has a dispute with the Plaintiff
in this case and which the Eku traditional Council decided on (presently before High Court,
Isiokolo), he replied, no. DW2 explained that the Defendant in this case, did some investigations
on the land including asking the Plaintiff in his case if the land he was interested in, was in dispute
and that to the best of his knowledge the investigator who met with the Plaintiff, returned with the
information that the land at Okorode bush is the land the Plaintiff in this case has a dispute with
him, the DW2 (Omote Otukueku).
DW2 agreed with the suggestion that nowhere in the Exhibit “A” did the Eku traditional council
declared him as owner of the Okorode bush, Edokpa bush, Ikpotogri bush and Obukohwo bush.
DW2 admitted that he has heard the name Poly-cap Okpara and that Poly-cap is a Chief of the
community but he has not heard of Chief Hon. Dan Okpore. DW2 denied that these 2 persons went
to the Otukueku family to verify whether or not the Otukueku land has been shared. DW2 denied
that the Plaintiff in this Suit is in court with Emmanuel Emagolor regarding the Otukueku’s family
compound but that he is in court with Emagolor regarding the Agitemi family compound, that the
Otukueku family compound is act NEPA junction, Eku.
DW2 pointed out that he did not measure the land shared to his father or land shared to his father
in Okorode, that he does not know whether or not it is 3 or 4 acres approximately.

FINAL ADDRESSES OF LEARNED COUNSEL

9
ADDRESS OF COUNSEL FOR THE DEFENDANT
At the close of the trial and pursuant to the directive of this Honourable Court, the Counsel for the
parties filed their respective final written addresses. Counsel for the Defendant’s filed a reply on
points of law against the final written address of the Plaintiff’s Counsel.

In addressing the Court, Counsel for the Defendant formulated two (2) issues for determination,
as follows:
1. HAVING REGARD TO THE EVIDENCE LED BY BOTH PARTIES, CAN IT BE
SAID THAT THE OTUKUEKU FAMILY LANDS HAVE BEEN PARTITIONED?
2. WHETHER THE PLAINTIFF IS ENTITLED TO THE RELIEFS SOUGHT?

On the other hand, Counsel for the Plaintiff formulated two (2) issues for determination, which
are;

1. WHETHER OTUKUEKU'S FAMILY LAND HAS BEEN PARTITIONED

BETWEEN AGITEMI AND USIOKOLO.
2. WHETHER DW2 (OMOTE USIOKOLO OTUKUEKU) HAS ANY
LAWFUL/CUSTOMARY RIGHT TO ALIENATE OTUKUEKU'S FAMILY LAND
TO THE DEFENDANT WITHOUT THE CONSENT AND AUTHORITY OF (THE
PRESENT HEAD OF OTUKUEKU'S FAMILY) PLAINTIFF.
Learned Counsel for the Defendant submitted on their issue one that, the law is trite that whosoever
wants the court to give judgment as to any legal right or liability, dependent on the existence of
facts which he assert must prove that those facts exist. Counsel referred this court to Section 135
(1) of the Evidence Law of Delta State which is applicable to this Honourable Court.

Counsel submitted further that, in this case, the Plaintiff must prove the existence of the facts he
assert in his claim and that, for the Plaintiff to succeed, he must prove the following;

1. That the land in dispute is the property of Otukueku his grandfather.

2. That the Otukueku family lands have not been partitioned.
3. That the land in dispute remains the joint property of the two gates of Otukueku family;
Agitemi and Usiokolo gates.
4. That the land in dispute is in common usage by the entire family of Otukueku.
Counsel for the Defendant submitted that the Plaintiff succeeded in proving that the land in dispute
was deforested by Otukueku, his grandfather and that the DW2, Omote Otukueku, the Plaintiff’s
cousin’s admission to this fact led to a successful proof of it and consequently what is admitted
needs no further proof.

Counsel for the Defendant submitted that, under the Urhobo custom which this Honourable Court
must take judicial notice of, if an Urhobo man dies, his properties, including lands are usually
shared in accordance with the numbers of gates he had and that in this case, parties are in
consonance with the numbers of gates Otukueku had in his lifetime, which were the Agitemi and
the Usiokolo gates but that the Plaintiff is the one asserting that the Otukueku family lands have

10
not been partitioned even though he has been selling the lands alone. Counsel for the Defendant
submitted that to buttress this point, on the 9th day of August, 2022, when the Plaintiff testified,
he stated under cross examination, thus;

Omote (DW2) is claiming that the family lands have been partitioned. He
is saying that the lands were shared between my father and his father. He
claimed, the left is my father's land. I have not sold all the lands on the left.
When I sold lands on the left, Omote (DW2) did not challenge me...Yes,
Omote is a principal member of the Otukueku family. The lands I sold on
the left were documented. Omote did not sign any of the documents of the
lands I sold.

Counsel for the Defendant submitted that the above extract shows that the Plaintiff, who is
asserting that the Otukueku family lands have not been partitioned, admitted that he sold several
lands without the signature of DW2, who is a principal member of the family and that the Plaintiff
claimed that the DW2 did not challenge him when he sold, until he sold part of the land on the
right, which DW2 challenged him on and took him before the Eku Traditional Council for a
customary arbitration which led to Exhibit “A”.

Counsel for the Defendant submitted that the land which was the subject matter of the Eku
Traditional Council is not the same as the one in dispute in this case and that the essence of
tendering Exhibit “A” was to establish the fact that the Otukueku family land has been shared and
that was why the Eku Traditional Council awarded that land to DW2.

Counsel submitted further that the Plaintiff in his evidence under Cross examination admitted that
when he was selling the lands on the left which DW2 claimed was Agitemi's land, DW2 never
challenged him until he sold from the right hand side.

Counsel submits that this piece of evidence is germane to the extent that there is a likelihood of
exclusive possessory right over certain portions of the Otukueku family lands that this is so because
of the following fact that;

1. There is evidence to show that the Plaintiff solely sold certain lands within the family lands
without challenge from the other gate.
2. There is evidence that DW2 is alleging that the lands have been partitioned in a manner
that each gate has exclusive right of possession over their respective portions.
3. There is evidence to show that when the Plaintiff sold lands in certain areas, he was not
challenged but he was summoned to the Eku Traditional Council when he sold certain parts
of the Otukueku family lands.
4. The Plaintiff laid claim of exclusive ownership over the entire land that was put in dispute
at the Eku Traditional Council. The dispute was not whether the land belongs to the entire
family but which of the parties own it.

11
 5. Both parties surrendered and submitted themselves to the customary arbitration and
delegates were sent to investigate the irrespective claims. The council gave a verdict which
the plaintiff did not reject until four months later.
Counsel for the Defendant submitted further that the above facts suggest that there is at least
evidence to show that the Otukueku family land in Exhibit “A” was proved to be the exclusive
property of the Usiokolo gate by the decision of the customary arbitration and the Plaintiff did not
challenge it, that the decision of a Customary Arbitration remains binding on all those who submit
themselves to it no matter the outcome. Counsel for the defendant submitted further that if the
Otukueku family lands have not been partitioned, the Plaintiff ought to have said so before the Eku
Traditional Council, that he rather claimed was that he is the owner of the entire land as recorded
in Exhibit “A”. Counsel submitted also that, if the lands have not been partitioned, the Plaintiff
would not have been selling the lands without any challenge from DW2. They submitted further
that the Plaintiff admitted that the DW2 did not challenge him when he sold the land which DW2
ascribed to be Agitemi's portion but that DW2 challenged him when he sold the lands on the right
which led to the customary arbitration and the pending suit at the Isiokolo High Court.

It is further the submission of Counsel for the Defendant that, if the lands have not been partitioned
as claimed by the Plaintiff, the traditional Council's decision ought to have stated so expressly that
why will the Plaintiff solely sell the Otukueku family lands if they have not been shared?

Counsel submitted that the court must take judicial notice of the fact that a family head cannot
alienate a family land without the consent of the principal members and that this Honourable Court
should therefore infer that the reason why the Plaintiff solely sold those lands without the consent
of DW2 is because DW2 has no interest in them and also that the reason why DW2 never
challenged the Plaintiff when he sold the lands he sold is because they belonged to the Agitemi
gate to which DW2 is not a member.

Counsel for the Defendant submitted that by Section 137 (1) of the Evidence Law of Delta State,
provides thus;

the burden of first proving the existence or non-existence of fact lies on

the party against whom judgment of the court would be given if no
evidence were provided on either side, regard being had to any
presumption that arise on the pleadings.

Counsel for the Defendant submitted that applying the above law to the case at hand, it is the
Plaintiff, who must first prove that the Otukueku family lands have not been partitioned with
sufficient evidence, that this is so because, prior to the filing of this action, he was aware that DW2
has consistently maintained that the Otukueku family lands have been shared and that this was
likened to prima facie proof in a no case to answer in criminal proceeding, that it is only when the
Plaintiff has proved that the Otukueku family lands have not been partitioned that the Defendant

12
will be called upon to lead evidence to establish the contrary and that, this is why the courts have
maintained that a Defendant is entitled to rely on the evidence of the Plaintiff without calling any
evidence. Counsel for the Defendant referred this court to see the case of NASR v. BERINI (1968)
ANLR 269 @ 270 (SC; also Section 137 (2) of the Evidence Law of Delta State.

Counsel for the Defendant submitted further that the Plaintiff who has the initial burden to lead
relevant evidence to prove that the Otukueku family lands have not been partitioned, has not led
sufficient evidence to establish that fact and especially when the evidence of the Plaintiff was
controverted under cross examination. Counsel submitted that this court must look at the evidence
of the Plaintiff holistically and not in isolation of what he said under cross examination, in that,
whether or not the Plaintiff has established prima facie that the Otukueku family lands have not
been partitioned in the light of the facts that were elicited from his evidence under cross
examination. Counsel for the Defendant submitted that the Plaintiff has not done that.

Counsel for the Defendant submitted that, all the Defendant is required to do in proving that the
Otukueku family lands have been shared is to lead sufficient evidence to establish that prima facie,
the lands have been partitioned, that in ABACHA v. THE STATE (2002) 11 NWLR (PT. 779)
437, it was held thus;

A piece of evidence discloses a prima facie case when it is such that if not
refuted and believed, it will be enough to prove the case against the
defendant.

Counsel for the Defendant submitted that in this case, the Plaintiff could not prove that he is in
possession of the land in dispute neither did he prove that the land is in common usage by the two
branches but that the Defendant proved that the land is in the exclusive possession of the Usiokolo
gate who have been farming on same unchallenged up to the time he bought same and that he
called DW2 to establish this fact and tendered Exhibit “A” which shows that part of the Otukueku
family land was declared to be the property of Usiokolo gate and that Exhibit “A” confirms that it
is not true that the Otukueku family lands have not been partitioned. That in demonstrating the
above, Plaintiff told this court under cross examination that he knew that DW2 sold the land in
dispute to the Defendant and that one would wonder why he did not sue DW2, that this, speaks
volume. Counsel submitted that, the Plaintiff admitted under cross examination that the Eku
Traditional Council decided that the Otukueku family lands have been shared when he said;

The decision is that the lands of Otukueku have been shared between my
father and the father of Omote Otukueku. I cannot remember the date of
the decision.

Counsel submitted that in ODUNSI v. BAMGBALA (1995) 1 NWLR (PT. 374) 641, it was held
that,

The essence of cross examination is to test the veracity of the evidence of

a witness and any answer given in the course of cross examination albeit

13
 damning to the case of the party but supports the case of the opposing party
is relevant.

Counsel referred this Court to see also the case of AKINOLA v. OLUWO (1962) 1 ALL NLR 224
@ 227.

Counsel submitted that from the conduct of the Plaintiff as demonstrated by his evidence, he was
tacitly avoiding the DW2 in this suit in order to evade the truth about the partitioning of the lands
and that the oral evidence about the decision of the Eku Traditional Council has thrown more light
on what transpired at the council on that day and that the Plaintiff admitted that the council decided
that the Otukueku family lands have been shared. Counsel submitted that the Plaintiff’s admission
corroborates the evidence of the Defendant and that of the DW2 and that the fact that he is saying
that the Otukueku family lands have not been partitioned is an afterthought which must be taken
with a pitch of salt.

Counsel submitted that the Defendant has the burden of rebutting the evidence of the Plaintiff with
regard to the issue of partitioning of the Otukueku family lands and that the Defendant can do this
through cross examination of the Plaintiff and his witness and also through his evidence, and that
of DW2, that when the Defendant fails to offer any evidence in rebuttal, the Defendant has failed
to discharge the onus of proof. Counsel referred to the case of ESEIGBE v. AGHOLOR (1993) 9
NWLR (Pt. 316)128 @ 144 CE (SC).

He submitted that the Defendant's onus of rebutting the evidence of the plaintiff is discharged on
the balance of probability and that the Defendant and his witness did not only rebut the claim of
the Plaintiff and his witness through cross examination but also through their unchallenged
evidence, that the essence of cross examination is to shake the credibility of the witness and expose
him as a witness of falsehood. That the Plaintiff's evidence that Otukueku family lands have not
been partitioned was challenged, discredited and controverted under cross examination by
Defendant’s counsel. That the Plaintiff's admission that, long ago, the Eku Traditional Council
gave a verdict stating that Otukueku family lands have been partitioned under cross examination
is a pointer to this. That the Plaintiff's admission under cross examination of the fact that DW2 had
all along claimed that the lands have been partitioned and that DW2 did not challenge him when
he sold certain lands has also created doubt in the mind of this Honourable Court in assessing the
credibility of the Plaintiff’s evidence. Counsel submitted that it is the duty of a trial court before
which evidence was taken to assess the credibility and demeanour of a witness who testifies before
it, that the evidence elicited from the Plaintiff under cross examination complements the fact that
the Otukueku family lands have been partitioned.

Counsel submitted that the Defendant went further to discharge the burden placed on him to prove
that the Otokueku family lands have been partitioned and apart from leading evidence, he called
DW2 who gave evidence of how the Otukueku family lands were partitioned into two parts for the
two gates and established by the evidence of the parties in this case. That he stated that “the Eruotor

14
family to which they belonged partitioned the lands amongst the two (2) sons of Otukueku and
according to him he stated that; "Eruotor is our extended family. Akpoede and Akpovwara were
the ones the Eruotor family sent to share the lands. The two people are brothers to Otukueku my
grandfather." That this evidence according to DW2 is as narrated to him by his father and that he
described how all the lands were shared by mentioning their locations and the portions shared to
each gate.

Counsel for the Defendant submitted that on custom and what the law expects of a party alleging
that a family land has been partitioned, that the law simply says the duty of a party who claims
exclusive title to a family land against the entire family or community is to prove that there has
been a partitioning of the land. Counsel submitted further that Partitioning as a legal concept is a
method whereby, joint possession is disunited or dismantled so that each former co-tenant or owner
or joint owner becomes a separate owner of a specific portion of land holding a share in severalty
as opposed to an undivided shareholder of the whole. Counsel referred to the case of ABRAHAM
v. OORUNFUNMI (1991) 1 NWLR (PT. 165) 53 @ 75.

That in DOSUNMU v. ADODO (1961) 13 NLR 1, it was held thus;

Where a family land has been apportioned amongst the gates of the family
and each gate in turn allocated plots to their members, this amounts to
partitioning of a family land in the circumstance and not mere occupational
rights.

Counsel submitted that the Defendant through DW2 has led evidence to the fact that the Otukueku
family lands have been partitioned. That DW2 mentioned those who partitioned the land to the
two sons of Otukueku who immediately took possession of same, that the DW2 has mentioned
two witnesses to the partitioning who according to him, are brothers to Otukueku. That the sharing
was done by the Eruotor family and that the two sons of Otukueku did not complain about the
sharing and that they did not quarrel or fight over lands. That DW2 grew up to meet his father
farming on the land in dispute and other lands shared to his father exclusively without any
challenge from anybody. That trouble started immediately after the death of Usiokolo, when the
plaintiff started selling his father’s portions of the lands without challenge but he was met a stiff
wall when he sold from the part DW2 claimed to be his own father's portion.

Counsel submitted further that to prove this fact, DW2 identified Exhibit “A”, a documentary
evidence and that, that documentary evidence is a hanger on in assessing the veracity of oral
evidence. That Exhibit “A” confirms and corroborates the fact that all along DW2 had known that
the Otukueku family lands have been shared which was confirmed by the Eku Traditional Council.
Counsel submitted that, the finding of the customary arbitration was not challenged by the Plaintiff
and that in CHUKWUEKE v. NWANKWO (1985) 5 NWLR (PT. 549) 284 @ 304, the Supreme
Court held that; “where there is evidence of partition, the same signifies an end to communal
ownership of the land in question”.

15
Counsel for the Defendant argued that the Plaintiff’s reaction to the evidence backed by Exhibit
“A” was that the Eku Traditional Council held that Otukueku family lands have been shared, that
under cross examination, the Plaintiff's counsel was unable to shake the credibility of the evidence
of the Defendant and that of DW2. That Plaintiff’s counsel seemed to be suggesting that the land
in dispute does not form part of what was shared to DW2's father that in reaction, DW2 clarified
that part of his father's land is on the left which he sold to the Defendant.

Defendant’s counsel submitted that, evidence of a party or a witness which was not challenged nor
discredited by a party who had the opportunity of doing so, must be deemed to have admitted such
evidence as true and correct. Counsel for the Defendant submitted that whereas Plaintiff's counsel
might be admitting that the lands were indeed partitioned and that the one in dispute belongs to
Agitemi but that the Plaintiff in his case is saying all Otukueku lands have not been shared but that
DW2 disagreed and explained how they were shared and that his evidence was not challenged.
Counsel submitted that the part shared to Agitemi is not in issue in this case but whether the lands
have been shared or not is what is in issue.

Counsel submitted that in ARABAMI v. ADVANCED BEVERAGE LTD (2005) 19 NWLR

(PL.959) 1, it was held;

Evidence that is related to a matter in controversy that is neither

successfully debunked nor controverted at all for that matter is good,
credible evidence that can be relied upon by a trial court. The court can
properly accept and rely upon any evidence before it which is
unchallenged and uncontroverted that it is relevant to the issues before it.

Counsel submitted that the Exhibit “A” is related to the matter in controversy and that the issue of
whether the family lands Otukueku have been partitioned was not successfully debunked or
controverted that this, this Honourable Court can safely rely upon both the decision in Exhibit “A”
and the oral evidence in support.

Counsel urged this Court to sum up the various pieces of evidence and place them on the imaginary
scale of justice to see the side it tilts in favour of and that Defendant has the onus of proving that
the lands of Otukueku had been shared amongst the two gates to establish that the lands have been
partitioned through traditional oral evidence as narrated by DW2 and that he did so by stating those
who were present at the time of the alleged sharing and the extent of the land partitioned. Counsel
referred to the case of ABRAHAM & ANOR. v. OLORUNFUNMI (1991) 1 NWLR (Pt. 165)53.
Counsel argued further that DW2 mentioned two names which he claimed were brothers of the
Late Otukueku, emphasizing that they were the ones the Eruotor family mandated to carry out the
sharing for the two brothers, that this piece of evidence was not challenged nor discredited by the
Plaintiff. Counsel submitted that the Defendant satisfied the first requirement laid down by the
Supreme Court in the above case. That the Defendant through DW2 mentioned all the lands of
Otukueku and described how they were shared and which part got to each of the two brothers,
using landmarks such as footpath roads to describe the division clearly and went further to say the

16
Plaintiff has sold his father's portion. That the DW2 also said his father has been in possession of
his portion before he died and that he grew up to meet his father farming on the portions shared to
him. That he further said each gates lived peacefully enjoying their respective portions until after
the death of his father when the Plaintiff sold parts of his lands, that he resisted and sued him to
the Eku Traditional Council, that the Eku Traditional Council gave judgment in his favour.
Counsel submitted that the Plaintiff did not challenge this evidence that he rather confirmed that
the customary arbitration held that Otukueku lands have been partitioned. Counsel argued that the
Defendant satisfied the second requirement of the law as stated by the Supreme Court especially
as DW2 mentioned several lands and described how they were shared. That he also mentioned that
each gate was in exclusive possession of their respective lands during the lifetime of their fathers.
Counsel contends that the Plaintiff did not lead any evidence to debunk this and he did not also
establish that the entire lands are in common usage by the two gates.

Counsel submitted that in IWUNO v. DIELI (1990) 5 NWLR (Pt. 149) 129 @ 135, it was held
that;

Where family land is partitioned, it is sufficient if there is evidence of the

portion allotted to each party. The partition could also be indicated by
landmarks or could be inferred from common or mutual understanding of
users. In order to prove partition however, evidence must be given of those
who were present at the time the partition took place and the extent of the
property so partitioned.

Counsel submitted that the nature of the evidence led by DW2 is traditional oral evidence of what
transpired before he was born as narrated to him by his father. That in the case of TAIWO v.
TAIWO (1958) 3 FSC 80 @ 82, the Supreme Court laid the foundation that, partition need not be
in writing before it could be effective.

Counsel submitted that, one of the ways in which courts may infer that there was indeed a partition
is to critically look at the totality of the evidence to see how each party to the alleged partitioning
dealt with the portions of land allegedly shared to them. That in SOWUNMI v. AYINDE (2010)
LPELR-4973 (CA) AT 23-24 the Court of Appeal observed thus:

If the Appellants were able to establish that the land in dispute has been
partitioned and that the 1st and 3rd Appellants dealt with the land
apportioned to their branch of the family, it would have been a valid and
effective defense to the respondent’s case at the court below.

Counsel submitted that in this case, the Defendant through DW2 proved to court through
unchallenged evidence that the Plaintiff has been dealing with the portions shared to his branch of
the family in a manner that excluded the other gates. That the Plaintiff confirmed that he has sold
several portions without the consent of DW2 but that DW2 raised eyebrows when he sold parts of
the area DW2 claimed belonged to them. That this piece of evidence effectively rebuts the

17
Plaintiff's claim that the lands have not been partitioned and that Exhibit “A” is a hanger on, in
assessing the truth of this fact.

Counsel submitted further that partitioning of a family land is a question of fact and that the
Defendant has buttressed his claim with the evidence of DW2 and Exhibit “A”, as well as the
admission made by the Plaintiff under cross examination. That Time Tur, JCA in ORAEZUE v.
IGBONEMIE (2017) LPELR - 42842 (CA) AT PAGE 32-33 B-D stated thus;

The sharing of property amongst family members followed by subsequent

sale or purchase by either allottee, seems to me constitutes an act of
partition.

Counsel for the Defendant submitted that the burden on the Defendant to prove that the Otukueku
family lands have been partitioned is not a burden that goes on forever resting on his shoulders
that, as soon as he brings evidence prima facie, which until it is answered, rebuts the evidence
against which he is contending, then the balance descends on the other side, and the burden rolls
over until again there is evidence, which once more turns the scale. Counsel referred to the case
ABRAHAM v. NORTH EASTERN RAILWAY CO. (1883) 11 Q. B. D. 440 @ 456.

Counsel for the Defendant submitted that the Plaintiff through his counsel had a duty of shaking
the credibility of the evidence of the Defendant and DW2 with respect to their evidence touching
on how the lands were partitioned but that Counsel for the Plaintiff failed to discharge that duty to
the satisfaction of the court.

Counsel for the Defendant submitted further that, the Plaintiff ought to have called a member of
the Otukueku family to testify that the lands have not been shared and that PW2 is not a member
of the Otukueku family and that his evidence did not help the case of the Plaintiff. Counsel
submitted thus, PW2 is a witness who came on his own to testify, that he was not sent by the
Eruotor family, that he is not unaware of the facts in Exhibit “A” as he admitted so under cross
examination therefore his evidence is not credible since he was not sent by the Eruotor family.

Counsel submitted that under cross examination, Plaintiff's counsel asked DW2 if he knows
Polycarp Okpara and Daniel Akpore and that DW2 explained that the duo were sent to investigate
whether the Otukueku family lands have been shared. But they came back to report to the council
that the family compound was not amongst what was shared. That this was sequel to the Plaintiff’s
attempt to sell the Otukueku family compound which DW2 fervently maintained is the only thing
that was not partitioned amongst Otukueku landed properties. That the above evidence elicited
under cross examination, reinforced the evidence of the Defendant that the Otukueku lands have
been partitioned. That DW2 is not so stupid to sit down and allow Plaintiff sell family properties
as if they belonged to Plaintiff. That he knew just as the Plaintiff that all the lands the Plaintiff sold
unchallenged belong to the Agitemi gate. But that the moment he sold out of Usiokolo lands, the
DW2 challenged him.

18
Defendant’s counsel submitted that he, Plaintiff’s counsel, tendered no document, to show this
Court the capacity in which the Plaintiff sold all the lands he sold, whether or not as he claimed,
he was selling in a representative capacity or as a beneficial owner. And also that the Plaintiff’s
counsel did not tender the court process of the land dispute between the Plaintiff and Mr. Emagonor
to enable this court determine if the Plaintiff is defending that suit in a representative capacity, that
failure to tender these documents, is fatal to the case of the Plaintiff, that a court of law is also a
court of equity and justice. That the Plaintiff was alleged to have sold all the Lands which DW2
said were shared to the Agitemi gate but that the Plaintiff did not deny this.

Counsel for the Defendant submitted that the Plaintiff got away with the sales of lands which he
admitted he sold because DW2 understood that they were lands shared to Agitemi and that was
the reason DW2 never challenged him. But that what led to the customary arbitration in Exhibit
“A” as stated by DW2 was that the Plaintiff sold all Agitemi's land and subsequently entered
Usiokolo’s lands to sell them and that this piece of evidence was neither challenged nor was it
denied, but that, in fact, the Plaintiff admitted he had sold many lands without the consent of DW2,
a principal member of the family. Counsel submitted that the Plaintiff must be deemed to have
known that there was a partitioning done and that was why he first sold all Agitemi lands and that
he sold them all before he entered the land partitioned to Usiokolo until he met a brick wall and
that this is the logical conclusion to be reached by this Honourable Court having regard to the
sequence of the acts. Counsel urged this Court to so hold. Counsel relied on Section 149 of the
Evidence Law of Delta State which permits this Court to, presume the existence of any fact which
the court thinks likely to have happened regard being had to the common course of natural events,
human conduct and public and private business in their relation to the facts of the particular case.
That applying the above law to the case at hand, with regard to the unchallenged and undenied
evidence of the Defendant and DW2, this Honourable Court ought to presume the following;

1. That the reason why Agitemi and Usiokolo never disputed or fought over the Otukueku
family land was because they were satisfied with their right of possession over their
respective portions of the family land.
2. That if this was not so, the Plaintiff ought to have adduced evidence showing that the
lands have been in common usage. That the Plaintiff did not lead any evidence to show
joint-ownership of any of the family lands, either by joint farming or alienation which
DW2 alleged was shared to Agitemi gate hence there was no challenge and that it was
after selling all the Agitemi portions which DW2 clearly itemized by names and
description, that the Plaintiff encroached into Usiokolo portion leading to the hostility
in Exhibit “A”. That if the lands have not been partitioned, the Usiokolo branch or gate
of the Otukueku family would have been part of those who sold the lands alienated to
third parties by the plaintiff.
3. That court is invited to presume that the Plaintiff first sold the area. That it is irresistible
for the court to presume that the Eku Traditional Council carried out due investigation
to ascertain whether the family lands have been partitioned before taking their decision
in Exhibit “A”, which is binding on the plaintiff forever even if he later resiles. Counsel

19
 refers this court to see the case of AKINYOADE v. AJAGUNNA (2019) LPELR 46386
(CA) PP. 12-21. The unchallenged evidence of DW2 was corroborated by the Plaintiff's
admission under cross examination that the Eku Traditional Council held that the
Otukueku lands have been partitioned.
4. That the court will also presume that the title deeds with which plaintiff used in selling
the lands he sold showed that he conveyed those lands not in representative capacity
but in his personal capacity as a beneficial owner. Same applies to the court process in
the land dispute between plaintiff and Emagonor. See Section 149 (d) of the Evidence
Law of Delta State.
Counsel urged this Court to resolve issue one in favour of the Defendant against the Plaintiff.

On issue two, whether the plaintiff is entitled to the reliefs sought, counsel submitted that the
Plaintiff seeks a declaration of title but that a declaratory relief is at the discretion of the court and
that all discretionary powers of the court are equitable in nature, that the Supreme Court held in
KOLO v. LAWAN (2018) EJSC (VOL. 96) 80 @ 89. R.8, thus; the ground to declaration of title
to land by court is discretionary.

Counsel contends that on the face of the claim, the Plaintiff filed this action against the Defendant
in a representative capacity. That he claimed he is representing the entire Otukueku family of Eku,
which includes DW2 and that the Plaintiff's contention is that the Defendant trespassed on part of
the Otukueku family land. That he is therefore seeking a declaration of title, injunction and
damages against the Defendant. Counsel submitted that it is the Plaintiff’s claim that confers
jurisdiction on the court and that the Defendant has no counter-claim in this case and he is therefore
not obliged to prove anything since he is not seeking any reliefs. That the Plaintiff must swim or
sink with the reliefs he has sought from this Honourable Court, that this court must therefore
restrict itself to the issue before it having regard to the reliefs on the face of the claim before it.
Counsel submitted further that, the Plaintiff carefully chose to sue the Defendant even when he
knew that the Defendant bought the land in dispute from DW2. Counsel submitted that the Plaintiff
avoided DW2 on his own volition but that the law is clear that the Plaintiff is at liberty to sue any
Defendant he chooses to sue. That in other words, the Plaintiff in this case who is aware that the
Defendant bought the land in dispute from DW2, cleverly chose not to join DW2 as a party to this
action, that, the Plaintiff is bound to succeed on the strength of his case and not on the weakness
of the case of the Defendant. That this court therefore will deal with the issues arising from the
claim as well as the reliefs therein and the evidence led so far.

Counsel submitted that the Plaintiff in his claim did not say the land in dispute was sold by DW2
and his siblings but that he said he is the "present head of the Otukueku family of Eku and the
person entitled by customary law of inheritance, to solely manage, control and in possession... of
the land, lying, situate and being at Okorode Bush, Along Eku/Echi road in Eku..."

Counsel further submitted that the Plaintiff led evidence for himself as PW1 and called PW2. That
the Plaintiff relied on traditional oral evidence which is one of the ways of proving ownership of

20
land in Nigeria That the Defendant who pleaded not liable also gave evidence and called DW2
who is Plaintiff's cousin. That from the claim and reliefs, the Plaintiff is bound to prove the
following in order to succeed;

a. That he is the person in possession and vested with the power to solely manage and control
the Otukueku family lands.
b. That he is acting with the consent of other members of the family.
c. That the Defendant trespassed on the said land without the authorization of the family.
That from the totality of the evidence led in this case, the Plaintiff has failed to prove that he is the
person in possession of the land and who is solely vested with the powers to control and manage
the land in dispute.

That the evidences before court show that there are two gates in Otukueku family to which the
Plaintiff is the family head while DW2 is a principal member. That no evidence was led by the
Plaintiff to the effect of where and when the Plaintiff was granted possession and the powers to
solely control the lands of Otukueku and the one in dispute. That no evidence led, explained who
gave the lands to the Plaintiff, when they were given to him and how the Plaintiff came into
possession of the land in dispute.

Counsel submitted that, there is no evidence that the Plaintiff filed this suit on behalf of the
Otukueku family. That in relief one of the claim, the Plaintiff is seeking a declaratory title to the
land as "a beneficial owner" in possession. Counsel submitted that, a beneficial owner is not a
trustee, that a beneficial owner is not one claiming a property in a representative capacity, that
DW2 corroborated thus by saying the plaintiff did not file this suit on behalf of Otukueku family.
Counsel submitted that from the evidence before this court, the Plaintiff did not have the
permission of the Usiokolo gate to file this suit but that the Usiokolo gate, which is headed by
DW2, is of the view that, the Otukueku family lands have been partitioned. Counsel submitted that
in ABRAHAM v. OLORUNFUNMI (SUPRA), it was held that;

Ownership connotes complete and total right over a property. The owner
of the property is not subject to the right of another person. Because he is
the owner, he has the full and final right of alienation of disposition of the
property and he exercises this right of alienation without seeking the
consent of another party. As a matter of law and fact, there is no other
party's right over the property higher than that of his.

Counsel submitted that when the Plaintiff claims that he should be declared the beneficial owner
of the property, he meant that he should be declared as the sole owner as opposed to a joint owner.
That in KALIO v. WOLUCHEN (1985) LPELR 1651 (SC), Karibi Whyte JSC, at Pg 33 Paras C-
D stated thus;

21
 It is now well settled that when one conveys as a beneficial owner, this
implies that he is conveying in his personal capacity and not in
representative capacity.

Counsel submitted thirdly, that the Plaintiff failed to prove that the Defendant entered the land
unlawfully. That the Defendant's case is that he legally acquired the land in dispute from DW2's
gate and has taken possession of same long before the Plaintiff filed this action, that the Plaintiff
is not unaware of the fact that DW2 was the person who sold the land in dispute to the Defendant.
Counsel submitted that the Plaintiff is aware that DW2 sold the land to the defendant that if this is
true, then can it be said that the Defendant is a trespasser where his title to the said land has not
been defeated and set aside?

Counsel submitted that the Plaintiff's action is not against DW2, that, the Plaintiff did not sue the
Defendant in order for the court to set aside the sale done by the DW2 and that he is not questioning
the sales of the land in any of the reliefs before this court but that is seeking a declaration of title
to the land in dispute and nothing more. Counsel for the Defendant submitted that the Plaintiff
tactically avoided the main issue of whether the Otukueku family lands to which the land in dispute
was part of have been partitioned. They submitted further that the Plaintiff ought to sue the DW2
the moment he claimed that the Otukueku family lands have been partitioned but that he did not
do so even when the customary arbitration said the land disputed in Exhibit “A” has been
partitioned to DW2's gate. Counsel submitted that the Plaintiff admitted that part of the decision
of the council is that Otukueku family lands have been partitioned and that the Plaintiff did not
challenged the decision of the Council which he voluntarily surrendered himself to, as a chief but
waited till four months after before expressing his displeasures.

Counsel submitted that Plaintiff told this court under cross examination that where the decision of
the council is not satisfactory to a person, that person is free to file a suit in court but that the
Plaintiff never filed any action to challenge the claim of DW2 that the family lands have been
partitioned, that the Plaintiff's conduct in not doing the needful shows that he has conceded to the
fact that indeed the family lands, part of which is in dispute, have been partitioned.

Counsel for the Defendant submitted that the section 151 of the Evidence Law provides for
estoppels by conduct. That thus where one party by his words or conduct, made to the other a
promise or assurance which was intended to affect the legal relations between them and to be acted
upon accordingly, then once the other party had taken him at his words acted on it, then the one
who gave the promise or assurance cannot afterwards be allowed to revert to previous legal
relations. Counsel refers to the cases of UBA PLC v. EFEMINI LTD (2018) LPELR-44150 (CA)
PP 14-15 PARA F-F; NSIRIM v. NSIRIM (2002) 3 NWLR (2002) 3 NWLR (PT. 755) 697 @
714 H-717 E.

Counsel submitted that the Plaintiff did not give any evidence of the concurrent possession of the
Otukueku family lands including the one in dispute that there was no evidence of common usage

22
to rebut the evidence of the defense that the land has been partitioned; that the Defendant gave
evidence of the fact that Usiokolo branch of the family were farming on the land in dispute up to
the time he bought it and that he even gave them time to harvest their cassava on the land; that
DW2 stated that they have been the ones farming on the portions shared to his father and that he
grew up to meet his father and Agitemi farming on their respective portions; that this evidence of
exclusive possession of the land for a long period of time was not challenged by the Plaintiff.
Counsel submitted that the Plaintiff did not claim he farmed on the land and that DW1 have been
in exclusive possession of the land in dispute. They submitted further that, in AUTA v. LIMAN
(2014) LPELR-22570 (CA) it was held that

When however the family members claim exclusive ownership as in the

instant case, he cannot rely on the title of the family to prove exclusive
ownership.

They submitted further that from the letters of the claim and the reliefs sought, the Plaintiff is
claiming that he is in exclusive possession of the land in dispute that he did not lead any evidence
to support this claim. They submitted that in KALIO v. WOLUCHEM (1985) LPELR 165 (SC),
it was held thus;

In an action for trespass, damages and injunction, proof of either

ownership or possession of the land in dispute is sufficient, that in their
views, trespass being a claim by a person in possession, an owner who is
not in possession cannot maintain an action merely in the capacity of being
the owner. Thus the respondents, in this case had the onus of proving not
only that they are owners of the land in dispute, which was denied but also
that they were in possession at the time of the alleged trespass. - Per Karibi
Whyte JSC @ Pg 31 D-G.

Counsel submitted that the Plaintiff was not in possession of the land in dispute up to the time the
land in dispute was sold and the defendant cleared and planted crops in it, that the land was in the
exclusive possession of Usiokolo branch of the family.

Counsel submitted further that this action is therefore bound to fail because it was filed in a
representative capacity on behalf of the two gates of Otukueku and that plaintiff was not authorized
to file this action that it was seen from the evidence of DW2 who denied that plaintiff was not
authorized by Otukueku family to file this suit. Counsel submitted that Plaintiff cannot file a suit
in a representative capacity where there is no common grudge or grievance and common interest
beneficial to the Usiokolo gate which he claims to represent, that in KWEWUM v. EYI (2015)
LPELR PP. 31-32 PARAS D-C, It was held thus;

There must be a common interest and a common grievance that the relief
claimed, if granted would be beneficial to all those the plaintiff purports
to represent.

23
Counsel submitted that in this case, even though the action was brought in a representative
capacity, the pleadings on the face of the claim as well as relief one, say something contrary, that
the Plaintiff is claiming the land as a beneficial owner and he is saying that he was vested with the
sole possessory right over the land, but that this was not was not supported by evidence because it
was stoutly denied by DW2. That thus the reliefs sought are not beneficial to the other branch of
the Otukueku family and therefore not grantable because Plaintiff misled the court and that he
should not be believed. That the Plaintiff is supposed to place cogent and compelling evidence that
is capable of convincing the Court in the exercise of its discretion.

Counsel submitted that it is trite that the claim and oral evidence of the Plaintiff are his pleadings
and evidence in this court, being a customary court, that evidence of a party is expected to be
consistent and assailable and that a party such as the plaintiff cannot be worthy of the discretionary
powers of court having been exposed to be a liar who claimed he was authorized to file this action,
that the plaintiff was exposed as not being in possession of the land in dispute and this Honourable
Court must therefore dismiss his claim with crushing cost.

Counsel submitted that the evidence of DW2 rebutted the claim of the Plaintiff that the Defendant
is a trespasser but that in fact, his evidence must be taken as an admission against interest. That
the Plaintiff claims the land belongs to Otukueku family which comprised the two gates but the
Defendant denied this and maintained it belongs to Usiokolo. He submitted further that DW2
testified against the Plaintiff and agreed with the Defendant and that in NWAWABA v. ENEMUE
(1988) 5 SCNJ 154 @ 166, Nnaemaka Agu JSC pronounced thus;

Admission against the interest by PW2 and PW4 who are members of the
appellant's family that they were living on the land in dispute with the
permission of the respondent is a very strong evidence of admission
against interest.

Counsel urged this court to resolve issue two in favour of the Defendant and dismiss this suit in its
entirety and award a cost of N1, 000.000 against the Plaintiff for trying to use his position as the
head of the family to oppress the Usiokolo gate and sell all the landed properties to the
disadvantage of others under the guise that the Otukueku family lands have not been partitioned.

ADDRESS OF LEARNED COUNSEL FOR THE PLAINTIFF

On his issue one, whether Otukueku's family land has been partitioned between Agitemi and
Usiokolo, learned Counsel for the Plaintiff submitted that from the evidence of the Plaintiff in this
case before this Honourable Court, the entire land measuring approximately 250acres, lying,
situate and being at along Echi Road in Eku, was deforested by his grandfather called Otukueku;
that he also described the boundaries to this as, Echi Road at the front Echeroko Road by the Right
hand side, an earth road that runs off Echi Road to Orhono Village and also bound by the Echeroko
Shrine and his grandfather divided the land into three parts namely Okorode which is close to Echi
Road;Ejokpa and Kpotogri in Orhono village in Eku the reason being that the entire land spans
from Echi Road in Eku, to Orhono village in Eku. That it is further the evidence of the Plaintiff

24
that after the land was deforested by his grandfather, Otukueku, Otukueku then planted cassava,
rubber trees, palm trees and hired out other parts of the land to people for farm work. That when
Otukueku was alive, he begot two sons namely Agitemi and Usiokolo and Agitemi is the older
male child between them and at the point of Otukueku's death, the two sons inherited the land and
Agitemi planted rubber and palm trees along side with the ones planted by his father, rented other
portions of the land to people to do farm work on monetary basis while his younger brother
Usiokolo also farmed on the remaining part of the land until Agitemi the Plaintiff's father died in
1982 and Usiokolo became the head of the family who also inherited the land.

That Usiokolo father of DW2 managed the land till he died in 2011 and thereafter Otukueku's
grand children from Agitemi's and Usiokolo's gate jointly inherited the land and as at that time,
Peter Otukueku from Agitemi's gate became the head of the family; that Peter took over the
management of the land till he became sick and died in 2016. And it was as a result of Peter
Otukueku from Agitemi's gate’s death, that the Plaintiff became the head of the Otukueku family
and the only person presently that has the Customary Right as his predecessors to oversee and
manage the Otukueku's family land to the benefit of all Otukueku's grand children.

Counsel submitted that flowing from the evidence of the Plaintiff, it connotes that the Plaintiff is
vehemently relying on traditional history/evidence upon which he derived his Customary
Right/title over the entire Otukueku's land part of which is now in dispute.

Counsel submitted that it is trite that the party who relies on traditional history as means of his
title, has evidential burden to proof how the land in dispute was deforested, the person who
deforested same, the devolution of the land till the land devolved on him without missing any point
and it is when this aspect of the law has been fulfilled before the Court can award him the title he
seeks over the land, that the authority for this proposition is the case of IGBOJIONU v. UKO
(2019) 4 WRN AT PAGE 120 121. RATIO: 3, where the Court of Appeal held thus;

Of course by Law where the two sides rely on traditional evidence to prove
their claims to the land, the party that filed the suit has burden to establish
its root of title, by leading cogent and credible evidence on how the land
was acquired by his ancestors/founder and how it devolved down the line
of the succeeding ancestors/beneficiaries, until the turn of the Plaintiff(s),
without breaking the chain of Succession; that is, the Plaintiff (or the
Defendant, where the Defendant also asserts traditional history) has to
trace the family tree or genealogical devolution of the land, from the
common founder or ancestor, to the current generation, laying claims to
the land

Counsel referred to the case of AIRTEL NETWORK LTD. v. AGWALEMERE (2018) LPELR-
44814 CA; ISIOHIA & ORS v. ELECHI (2018) LPELR-44988 CA, where it was held:

... One who places reliance on traditional evidence in the bid to establish
their title to the land in dispute has the onus to plead the root of title and

25
 names and history of his ancestors and lead evidence to establish same,
without any missing link.

Counsel also referred to the case of UGWU v. NNAJI (2018) Vol. 40 WRN AT PAGES 108-128,
PARTICULARLY AT PAGE 112, RATIO: 1, where the Court of Appeal held per Ogunwuniju,
JCA (P. 126) Lines 35-40, as follows;

Indeed, proof of traditional history of ownership of land from when the

land was acquired by whatever means by the Claimants ancestors and the
land's devolution on him, is one of the ways of proving root of title and
ultimately ownership of the land in dispute.

Counsel further submitted that the Plaintiff in continuation of his case, called one witness, one
Sunday Akpoede Jaboro who is a principal member of the Eruotor family where Otukueku the
grandfather of the Plaintiff and DW2 (Omote Usiokolo Otukueku) hails from; that the testimony
of PW2 corroborated the evidence of the Plaintiff; that PW2 (Sunday Akpoede) is the son of
Akpoede who DW2 alleged shared the Otukueku lands between Plaintiff's father and his own
father. That PW2 in his evidence-in-chief and under cross examination gave the genealogy of how
the land was deforested by Otukueku, the devolution of same till it presently got to the time of the
Plaintiff and also maintained that the Otukueku land has never been shared by anybody to Agitemi
and Usiokolo cum the present generation. That he thus maintained that the only time the Plaintiff
sold 2 portions of land from the vast land was vide the permission of the family on two different
occasions to wit;

1. When Peter Agitemi Otukueku was ill and they needed money to fly him overseas for
medical treatment which the Plaintiff did but Peter Agitemi Otukueku could not survive
the illness.
2. At a time when they needed money for the case Peter Agitemi Otukueku was handling at
the High Court Isiokolo after Peter's death.
Counsel for the Plaintiff submitted that one should reason that if the Otukueku's land has been
shared between the Agitemi and Usiokolo, why will the Plaintiff seek and obtain the permission
of the family before he could sell 2 portions of land to take care of the health of his elder brother
Peter Otukueku from the same Agitemi's gate with the Plaintiff and for the case Peter Otukueku
was handling at Isiokolo High Court, before Peter Otukueku’s death?

Counsel submitted that the evidence of the Plaintiff's witness is so credible and was not cross
examined on same by defense Counsel and that it is trite that when the opposite party fails to cross
examine plaintiff's witness on a material issue, it is regarded as tacit admission, most especially
when PW2 maintained in his testimony that the Otukueku family land has never been shared or
partitioned till date neither was DW2 (Omote Usiokolo Otukueku) permitted by the family to sell
the portion of land situate by the left hand in Okorode bush being part of the larger piece/parcel of
land deforested by Otukueku which is now in dispute.

26
Counsel submitted that the Court of Appeal Abuja Division held thus in the case of FRN v.
SARAKI (2018) 22WRN AT PAGE 120 RT: 13, that;

The law is settled that the effect of failure to cross-examine a witness on a

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

Referred also to GAJI v. PAYE (2003) 30 WRN 146; (2003) 8 NWLR (Pt. 823) 583, CBN & ORS
v. OKOJI (2015) 40 WRN 1; (2015) LPELR-24 740 (SC)".

Counsel submitted that the DW2 who sold the land in dispute to the Defendant is in tacit agreement
with the Plaintiff that the land in question was deforested by Otukueku their grandfather but in
total disagreement with the Plaintiff that the Otukueku land has been partitioned between his father
and Plaintiffs by one Akpowara and Akpoede the father of PW2 which PW2 also denied that there
was never a time the Otukueku family was shared between Agitemi and Usiokolo the two sons of
Otukueku.

Counsel submitted that under the Urhobo Native and Custom and in Law, the Onus of evidential
proof is always on the party who alleges to proof same; That the onus of proof lie strictly on DW2
to establish with cogent and credible evidence as to;

1. What happened to the land after same was deforested by Otukueku.

2. The present where about of Otukueku.
3. And if he is no longer alive, then what happened to the land deforested by Otukueku after
his death.
4. If there is any partitioned the person who called for the sharing, the procedure for same
before it was shared.
5. The area and size of the land shared to each party and the people who witness the sharing.
Counsel submitted further that DW2 only testified that it was Akpowara and Akpoede who shared
the Otukueku's land without more to Agitemi and Usiokolo and it is the portion shared to his father
that he sold to the defendant. That under Cross examination on the 9th day of August 2022, that
the Plaintiff testified as follows;

In the High Court, Omote is claiming that the land has been partitioned
which I said no; he claimed that the land has been partitioned between
Agitemi and Usiokolo. Omote claimed that the left hand side was shared
to my father and I have not sold all my father's land there; and the land I
sold by the left hand side does not belong to Omote, Omote never
challenged me and I did not sell any land by the right hand side as claimed
by Omote.

Furthermore, that the Defendant in his evidence-in-chief on the 27th day of February 2023 stated
thus;

27
 As at the time I bought the land, there were cassava crops which were owned by the relation
of Omote Usiokolo who sold to me; I gave them time for the Cassava to mature and harvest
same.

That under cross examination on the same 27th day of February 2023, the Defendant continued
thus;

I know Echi Road in Eku and I also know Maria's Street, Off Echi Road
in Eku; when standing on Maria's Street backing the Magistrate Court the
land in question is by the left hand side.

Counsel submitted that assuming without conceding that the land deforested by Otukueku has been
partitioned between Agitemi and Usiokolo, why would DW2 (Omote's) sister still cultivate
cassava on the left hand side of Okorode shared to the Plaintiff without explanation to same;
counsel submitted that the traditional history DW2 elicited is inconclusive and the court should
not believe same. Counsel relied on the case of TAIWO & ORS. v. OGUNDELE & ORS (2012)
VOL. 208 LRCN, AT PAGE 24 PARAGRAPH F. where the Supreme Court held thus:

The law is trite that a trial judge is entitled to reject evidence of traditional
history which is incredible as rightly found by the learned trial judge in the
present case.

Counsel for the Plaintiff submitted further that DW2 relied also on Exhibit "A” as the evidence of
the partitioning and judgment in his favour from Eku traditional council; Counsel submitted that
from a close look at page 1, lines 9-15 of the said Exhibit "A”, it was stated that the leader of the
delegation, Chief Edafe Ikie, reported that the disputed portion is part of the vast land owned by
their grandfather Otukueku, that the father of the complainant Pa. Usiokolo has been using the
disputed portion of land for farming for a very long time, while the Defendant Richard Otukueku
is claiming the ownership of the vast land, that both parties are first cousins, that the delegation
therefore recommended that the disputed land be awarded to the complainant Mr. Omote Usiokolo
Otukueku.

Counsel submitted that the recommendation and the award of the disputed portion to the
Complainant Omote Usiokolo Otukueku (DW2) does not in any way or manner support
partitioning of Otukueku's land, that otherwise the remaining part of Okorode bush by the left hand
side alleged by DW2 to have been partitioned to the Plaintiff and other parts of the land in Ejokpa,
Ikpotogri and Obukohwo remains the Plaintiff's property partitioned to his father's gate without
more; and that it is common knowledge under Urhobo Native Law and Customs, that the Elders
of a community are not the ones who partition the properties of a demised father to his children;
rather the elders of the community rely on any partitioning made by principal members of the
family either to individual members as the case may be or gate by gate.

It is his submission further that, section 57(1) (a) and (2) of the Delta State Customary Court Rules
2019 prohibits any person who is not a member of a Customary Court from acting as an Arbitrator

28
over land matters. That the Eku traditional Council, having gone beyond their limit, remains ultra
vires and anything done in respect to the said area of land as contained in Exhibit "A", remains a
nullity. Counsel referred to the case of AGWAI v. I.N.E.C. (2021) ALL FWLR (PT 1090) AT
PAGES 1676-1677 RT: 8 that the Court of Appeal held thus;

There cannot be a waiver when there is glaring non compliance with clear
and fundamental statutory provisions. Where a statute provides
unambiguously for an act to be done in a particular manner, failure to
perform that act in the prescribed manner amounts to non-compliance and
its effect cannot be waived.

Still on issue one, counsel submitted that the Court of Appeal held in the case of OBU v. OKIGWE
(2018) 39.W.R.N. AT PAGE 160 RATO: 6, thus:

The law is settled that where the traditional evidence of a party is cogent,
credible and unchallenged, it is sufficient to sustain a claim of title to the
land in dispute and in such case a consideration of recent acts of ownership
and possession becomes unnecessary.

Counsel urged this Court to resolve issue one in favour of the Plaintiff by relying in the case of
OBU v. OKIGWE (SUPRA)

On issue two, whether DW2 (Omote Usiokolo Otukueku) has any lawful/customary right to
alienate Otukueku's family land to the Defendant without the consent and authority of (the present
head of Otukueku's family), the Plaintiff, Counsel for the Plaintiff submitted that in the case of
TUKURU & ORS v. SABI &ORS (2013) VOL. 222 LRCN (PT. 1) AT PAGE 70, RATIO: 3, the
Supreme Court held as follows: "Trespass to land is an unjustified interference or intrusion with
exclusive possession of land”.

Counsel referred to OGUMBIYI v. ADEWUNMI (1998) 5 NWLR (PT. 93) 315; ONAGORUWA
v. ADENIYI (1993) 5 NWLR (PT. 293) 350, that if the Defendant placed a part of his foot on the
Plaintiffs land unlawfully, it is in law as much a trespass as if he had walked half a mile on it, as it
was held in ELLIS v. LOFTUS IRON CO. (1724) LT. 10 CP. 10 AT 12 per Coleridge C. J.

That however, in order to succeed in a claim for trespass and injunction, the identity of the land
and its boundaries must be established and that the Plaintiff must be in exclusive occupation of the
land. Counsel referred to AMAKOR v. OBIEFUNA (1974) 1 ALL NLR (PT. 1) 49, that the land
and its boundaries must be clearly established."

Counsel submitted that, the Plaintiff in his evidence-in-chief testified how his grandfather, referred
to as Otukueku, deforested the land along Echi Road in Eku which spans from same to Orhono
village in Eku; that he mentioned the size of the entire land as measuring approximately 250 acres,
the boundaries of the land and its genealogy until same devolved on him as the present head of
Otukueku family of Eku. He also maintained that the Otukueku's land has not be shared and also

29
demonstrated how the Defendant trespassed into part of the land in Okorode bush, which forms
part of the vast land deforested by his grandfather, Otukueku; and that the area the Defendant
trespassed on in Okorode area of the land measures, 50 plots of land at 50feet by 100feet per plot.

Counsel submitted that, it is trite law that a Claimant of declaration of title to land has the burden
to give clearly, the identity of the land he is claiming, because no court will grant a declaration on
an unidentified land; that the Claimant must lead credible evidence describing and identifying the
land with certainty and thereafter the burden shifts to the Defendant and in the event the Defendant
fails to give or proof a better title, the Courts are enjoined to give judgment in favour of the
Plaintiff; that the authority for this proposition, is the case OGUNSANWO v. OGUNTADE (2018)
8 W.R.N. AT 101 RATIO: 6 that the Court of Appeal held:

The law is that the initial burden of proof rests on the Plaintiff where he is
able to lead credible evidence which prima facie establishes his title to the
land in dispute, that the burden will then shift to the Defendant to adduce
evidence in rebuttal by showing a better title to the land, that, where the
Defendant fails to discharge this evidential burden on him, the court will
give judgment to the Plaintiff. That the Learned trial judge in this appeal
followed this procedure to the hilt.

Counsel for the Plaintiff submitted that the question suitable at this point is what is the
case/evidence the Defendant elicited before this Honourable Court? That the Defendant in his
voluntary evidence-in-chief on the 20th day of February 2023 amongst others said;

They brought to me the decision of Eku Traditional Council and after

reading through it, I felt it was a genuine land and I invested my money on
it; in other words I purchase the land. The decision of Eku Traditional
Council was reduced into writing; the decision of Eku Traditional Council
was in respect of the dispute between Usiokolo and the Plaintiff and in
respect of the land offered to me to buy.

And that it was through the Defendant, Exhibit "A", the decision of the Eku Traditional Council
reduced into writing, was tendered.

That under Cross-examination that same day, 20th day of February 2023, the Defendant admitted
that it is the land by the left hand side when standing on Echi Road in Eku and same time backing
the Magistrate Court in Eku; that the Defendant stated that the Plaintiff did not sue him for of the
entire land measuring 250 acres but in an area measuring 50 plots of land of 50feet by100 feet all
in Okorode by the left hand side of it. Counsel submitted that in Law, when a party admits
evidential fact, same does not need further proof. He referred to the case of GBEMI & SONS NIG.
LTD. v. SKYE BANK PLC (2018) 50 W.R.N. AT 138-139, RT: 11. That it was held that;

In law, admission: "is a concession or voluntary acknowledgment made

by a party of the existence of certain facts; a statement made by a party of

30
 the existence of a fact which is relevant to the cause of his adversary; a
voluntary acknowledgement made by a party of the existence of the truth
of certain facts which are inconsistent with his claims in an action.

Counsel also referred to the following cases; ADUSEI v. ADEBAYO (2012) 17 WRN 1; (2012)
3 NWLR (PT. 1288) 534 AT 558 PER FABIYI, JSC; UBA v. JARAABA (2007) 43 WRN 1;
(2007) 31 NSCQR 144; NBCL v. INTEGRATED GAS (NIG.) LTD. (2005) 9 WRN 1; (2005) 4
NWLR (PT. 916) 617; OMISORE v. AREGBESCIA (SUPRA); N.A.S. LTD. v. UBA PLC.
(2005) 38 WRN 1, (2005) 14 NWLR (PT. 945) 421; AL-HASSAN v. ISHAKU (2016) 9 WRN 1,
(2016) 10 NWLR (PT. 1520) 230.

That it is classified, in the stratification of evidence, as the best evidence against the party making
it, Counsel referred to, DANIEL v. INEC (2015) 9 NWLR (PT. 1463) 133. That it constitutes a
concession against the interest of a party making it, Counsel referred also to ONOVO v. MBA
(2016) 46 WRN 83; (2014) 14 NWLR (PT. 1427) 391, PER OGBUINYA JCA, [PP. 159-160]
LINES. 45-15. “That in the view of the law, an admitted fact does not need any proof”.

Counsel referred to OUR LINE v. S.C.C. NIG. LTD. (2009) 38 WRN 33, (2009) 7 SCNJ 358;
JOLASUN v. BAMGBOYE (2011) 16 WRN 1, (2010) 18 NWLR (PT. 1225) 285; OFFOR v.
STATE (2012) 25 WRN 1, (2012) 18 NWLR (PT. 1333) 421, JITTE v. OKPULOR (2015) 50
WRN 40; (2016) 2 NWLR (PT. 1497)542, COLE v. JIBUNOH (2011) 1 WRN 47; (2016) 4
NWLR (PT. 1503) 499, ORIANZI v. A-G., RIVERS STATE (2017) 14 WRN 1; (2017) 6 NWLR
(PT. 1561) 224," PER OGBUINYA JCA [P. 160] LINES. 20 - 30.

Counsel for the Plaintiff submitted further that, the Plaintiff testified under cross examination on
the 9th day of July 2022 as follows;

In the High Court Omote (DW2) is claiming that the land has been
partitioned which I said, NO; he claimed that the land has been partitioned
between Agitemi and Usiokolo Omote claim that the left side was shared
to my father and I have not sold all my father's land there; and the land I
sold by the left hand side, Omote never challenged me and I did not sell
any land by the right hand as Omote claim.

Counsel for the Plaintiff submitted that assuming without conceding that the Otukueku's family
land has been partitioned and the land by the left hand side was partitioned to Agitemi, the father
of the Plaintiff, that, it remains unlawful for DW2 to trespass into Plaintiff's land and sell Plaintiff's
land to the Defendant without Plaintiff's consent and authority. That DW2 remains trapped in the
webs of NEMO DAT QUOD NON HABET Counsel referred to of AJUWON v. AKANNI (2003)
2 NLLC AT PAGE 634 RT: 17, where the Supreme Court held thus:

"The Latin maxim 'nemo dat quod non habet' means that no one can give what he does not own".
Counsel referred to AKERELE v. ATUNRASE (1969) 1 ALL NLR 201 AT 208."

31
That, the Defendant went further to tender Exhibit "B" as a Deed of Conveyance made between
him and DW2 after admitting before this Honourable Court that he was convince with Exhibit "A'
that the land was genuine and that was why he purchased the land contained in Exhibit "A" and
that under further cross examination the Defendant always maintained the habit of the Document
speaks for itself; that if Exhibit "A" speaks for itself and it's the same document the Defendant was
convince that the land in it is genuine, upon which he purchased same from DW2, that of what
nexus is Exhibit "B" with Exhibit "A"? Counsel submitted that from the contents of Exhibit "A",
Exhibit "A" has no correlation with Exhibit "B" and that there is nowhere from the contents of
Exhibit "A" where any land in Ejokpa bush in Orhono village in Eku was mentioned and that
neither did the Defendant give any evidence to link Exhibit "A" and Exhibit "B" to demonstrate
how the two different parcels of land stated in the said Exhibits, are one and the same piece/parcel
of land. It was submitted by counsel for the Plaintiff that the evidential onus of proof remains static
with the parties who asserts until same discharge the burden, does not shift and failure for the party
who asserts to proof is fatal to his case. Counsel referred to the case of OKAFOR v. EJIOGU
(2012) ALL FWLR (PT. 650) AT PAGE 1319, RATIO: 5 where the court of Appeal held:

In civil cases, the burden of proof rests on the party, whether Plaintiff or
Defendant, who asserts the affirmative of an issue in dispute. It rests on
the party who will fail if no evidence at all or no more evidence as the case
may be, were given on either side. In the instant case, the defendants failed
to discharge the burden on it, the trial court rightly granted plaintiff's
claims. [YUSUF v. ADEGOKE (2007) ALL FWLR (PT. 385) 384;
ASUGUO v. ASUGUO (2010) ALL FWLR (PT. 549) 952 referred to]

That more so, the Defendant in one breath copiously stated that because Exhibit "A" is a genuine
document being the decision of the Eku Traditional Council, that is why he invested in / purchased
the land as contained in Exhibit "A" and also being the land DW2 offered to him to buy; that he
also said that a Deed of Conveyance was made as to the purchase.

Counsel submitted that the land offered to the Defendant to purchase as contained in Exhibit "A",
is in respect of a piece/parcel of land situate at Okorode Bush along Echi Road in Eku while the
piece/parcel of land as contained in Exhibit "B" is situate at Ejokpa Bush in Orhono Eku which
has no correlation and was not in any way nor manner explained by the Defense.

That it is the law that a party who is not consistent and straight forward with his evidence does not
desire the favour of the Court; that the authority for this proposition is the case of EMENIKE v.
PDP & ORS (2012) VO. 210 LRCN AT PAGE 100, RATIO: 6, where the Supreme Court held;

This court has stated it in clear terms that a party should be consistent in
stating his case and consistent in proving it. Justice is more than a game of
hide and seek. It will never decree anything in favour of so slippery a
customer as the Appellant.

Counsel referred to: AJIDE v. KELANI (1955) 3 MLR (PT. 12) 248 AT 269 C-D."
32
Counsel submitted that the Defendant also called one witness, Omote Usiokolo Otukueku as DW2
whom he claimed sold the land in dispute to him. That DW2 in his testimony said the Otukueku's
family land has been shared between Agitemi and Usiokolo his father but that the Plaintiff and his
witness denied that the Otukueku's family land has not been shared.

That DW2 was very evasive throughout his testimony under cross examination to a very large
extent, till he later agreed that the land he sold to the Defendant is the left hand side in Okorode
bush; and in another breath said the land is no longer in Okorode bush but in Ejokpa bush and
Ejokpa bush is not in Orhono in Eku.

That DW2 stated in his evidence in-chief that before he sold the land to the Defendant, the
Defendant personally sent his agents to investigate the truth about the land from the Plaintiff and
the Plaintiff told the Defendant's agents that he is not having problems with DW2 except the
portion by the right hand side in Okorode, in respect of which he had already sued the Plaintiff to
High Court in Isiokolo. That the Defendant on the other hand admitted in his evidence that he need
not investigate the title of DW2 before he purchased the land because he was convinced with the
content of Exhibit "A", as same speaks for itself.

Counsel submitted that no oral evidence can be admitted to contradict, add to or vary the content
of documentary evidence before the Court; that considering this trite law, it is copiously stated in
recital one, of the Exhibit "B" as follows;

(1) The transferors are the beneficial owners in possession of the piece or
parcel of land lying and situated at EJOKPA BUSH in Orhono, Eku in
Ethiope East Local Government Area of Delta State of Nigeria having an
area of approximately 342ft by 535ft by 1397ft by 437ft by virtue of
inheritance from their forefathers and have remained in possession without
Let or hindrance from anybody or quarters."

Counsel submitted that it is clear that the land in Exhibit "B" which DW2 tried to be evasive of, is
situate in Ejokpa Bush in Orhono Eku which manifestly contradict his evidence that the land he
offered to the Defendant to purchase as contained in Exhibit "A" which the Defendant did
purchased and planted his palm seedlings on by the left hand side in Okorode bush when backing
the Magistrate Court along Echi Road in Eku. That the Defendant and his witness testimony are
contradictory and the courts are enjoined not to believe same. Counsel referred to the case of
MAKAAN v. HAGEM (2018) 32 WRN AT PAGE 55, RATIO: 7 where the Court of Appeal held:

When a party's evidence on material facts is inconsistent or contradictory,

it would cast serious doubt on the veracity of the party's case and the court
would be justified to disbelieve the party. This is simply because the Court
cannot pick and choose which piece of inconsistent evidence to believe
and give effect to.

33
Also, IGE v. AKOJU (1994) LPELR-1451 S.C, (1994) 4 SCNJ 288; AKPAN v. OTONG (1996)
10 NWLR (PT. 476) 108; NWOKORO v. ONUMA (1999) 9 S.C 59; USIOBAIFO v. USIO-
USIOBAIFO (2005) 12 WRN (2005) 1 S.C (PT. 11) 60; IGABELE v. STATE (2004) 34 WRN
83, (2006) LPELR 1441 S.C; TAIWO v. OGUNDELE (2012) LPELR-7803 S.C.

That what amounts to contradiction in evidence was recently restated by the Supreme Court, per
Angie, JSC in ZAKIRAI v. MUHAMMAD (2017) 39 WRN 1; (2017) LPELR-42349 S.C AT
PAGES 70-71 of the E-report in this manner;

The law insists that where there are material contradictions in the evidence
adduced by a party, the court is enjoined to reject the entire evidence as it
cannot pick and choose which of the conflicting versions to follow.

Also in KAYILI v. YILBUL & ORS (2016) 6 WRN 52; (2015) LPELR-24323 S.C.,
it was held;

A piece of evidence is contradictory to another when it asserts or affirms

the opposite of what the other asserts. Put another way, evidence contradict
evidence, when it says the opposite of what the other evidence says, not
just on any point but on a material point.

Counsel submitted that ascribing of different names to the land in Exhibit "A" which the Defendant
admitted as the land offered to him to purchase by DW2 which he was convince as genuine and
actually purchased same without the consent and authority of the Plaintiff will never help the case
of the Defense. Counsel referred this court to the case of ATANDA v. ILLIASU (2012) VOL. 214
LRCN AT PAGE 227 RT: 4 that the Supreme Court held;

The law is trite that ascribing different names to the land by parties is
immaterial for purpose of proving identity of land.

Counsel submitted that the weight a court will attach to a document admitted in evidence will
depend on the circumstance of the case as contained or portrayed in the evidence, that they convey
separate meanings under our adjectival law and not in any form of dovetail.

That in the case of AYANWALE v. ODUSAMI (2012) VOL. 204 LRCN AT PAGE 206 RATIO:
II, the Supreme Court held:

Production of a Deed of Conveyance or document of title is one of the five

ways of acquiring ownership or title to land. Even then, production of a
Deed of Conveyance or any document of title does not automatically
entitle a party to a claim in Declaration. Before the document of title is
admitted, as sufficient proof of ownership, the court must satisfy itself that:

(a) The document is genuine or valid.

(b) It has been duly stamped and registered.
(c) The grantor has authority and capacity to make the grant.

34
 (d) The grantor has in fact what he proposed to grant.
(e) That the grant had the effect claimed by the holder of the instrument.
ROMAINE v. ROMAINE (1992) 4 NWLR (PT. 238)650; KYARI v.
ALKALI (2001) FWLR (PT. 60) 1481; (2001)87 LRCN 2096; DABO
v. ABDULLAHI (2005) 29 WRN II; (2005) 7NWLR (PT. 923) 181;
(2005) 125 LRCN 742.

That in considering paragraphs (a) and (b) jointly as stated in the case of AYANWALE v.
ODUSANMI, (SUPRA), section 15 of the lands instrument Registration stipulate as follows:

No instrument shall be pleaded, given in evidence in any court affecting

any land, unless the same has been registered in the proper office as
specified in section 3.

While section 56(2) of the Delta State Customary Courts Edict, 1997 State as follows:

Any person, other than a member of a Customary Court, adjudicating as

an arbitrator upon any civil matter in dispute (other than a petition for
divorce where the parties thereto have agreed to submit the dispute to his
decision shall not be regarded as exercising judicial powers for the
purposes of paragraph (a) of sub-section (1) of this section.

That the above quoted sections are statutory provisions and non compliance makes any act done
contrarily, null and void. Counsel referred to the case of UNITED BANK FOR AFRICA PLC v.
MOHAMMED (2012) ALL FWLR (PT. 649) AT PAGE 1104 RT: 12, that the court held thus;

If the Law provides for a particular way or method, non- compliance with
that particular way or method will nullify the act ab initio.

That by virtue of Section 15 of the Land instrument Registration Law and Section 56 (2) of the
Delta State Customary Courts Edict 1997, Exhibits "A" and "B" are defective documents which
the courts cannot rely on but to expunge same at judgment stage as same was wrongly admitted.
That the authority for this proposition is the case of UKAOBAS v. NWABUEZE (2017) 50 WRN
AT PAGE 112, RATIO: 7 where the Court held;

Where a document is wrongly admitted, the same court has the power and
jurisdiction to expunge it at judgment stage, since it can only base its
judgment on legally admissible evidence and document.

Counsel referred to the case of FRN v. USMAN & ANOR (2012) VOL. 208 LRCN AT PAGE 38
RATIO: 10. That it was held by the Supreme Court thus:

It is clear that in admissible evidence is of no moment even where it is

wrongly admitted either by consent of the parties or without objection
by the other party.

35
Also counsel referred to the cases of, OKORO v. THE STATE (1995) 12 SCNJ 84 AT 96; OSHO
v. APE (1995) 6 SCNJ 139 at 152, that such evidence is liable to be expunged even by an Appellate
Court or otherwise discountenanced and that, paragraphs (c) (e) of the AYANWALE v.
ODUSANMI (SUPRA) which States; whether the guarantor has authority any capacity to make
the grant.

Counsel submitted that the Plaintiff in his evidence testified that he did not permit anybody to sell
the land in dispute. That he Defendant also confirmed same at a time the Plaintiff confronted him
and he told him that he did buy any land from him and that to buttress this point, PW2 in his
evidence before this Honourable Court on the 1st day of December 2022 stated that it was DW2
who sold the land in dispute and that the family never permitted him to sell the land and that even
when the Plaintiff came to report the sale's of the land to their family, the family sent for DW2 on
three different occasions but that DW2 refused to honour their invitation and it was based on that,
the family gave the Plaintiff the go-ahead to look for whosoever the land was sold to and recover
same from him through court.

That going by that piece of evidence which the Defense did not challenge at anytime, is a tacit
admission of the fact that the Otukueku land has not been partitioned and the sales of the
piece/parcel by DW2 to the Defendant without the consent and authority of the Plaintiff being the
present head of Otukueku family, is null and void ab-initio. That the authority for this proposition
is the case of BABAYEJU & ANOR v. ASHAMU & ANOR (1998) LPELR – 700(SC)

The land in dispute being family land cannot be validly sold without the
consent and approval of the family head and other principal members. Per
Wali JSC PP 16-17 paras F.

That Secondly, in the case of AJUWON v. AKANNI (2003) 2 NLLC AT PAGE 630 RT: 2, the
Supreme Court also held:

Where the head of family did not join in a conveyance of family land and
the principal members did not concur therein, a sale of family land in this
regard would be treated as void ab initio.

That it is on record that it was the Eruotor family, where Otukueku, the grandfather of Plaintiff
and DW2 hails from, that gave permission to the Plaintiff to sell portion of land from the vast land
deforested by Otukueku as a result of the following reasons;

(i) When Peter Agitemi Otukueku the head Otuueku's family as he was then, was very ill
and they need money to take him oversees for medical treatment.
(ii) When they need money for the case Peter Agitemi Otukueku was hardly at the High
Court in Isokolo.
That even though the Plaintiff admitted that he sold land to one Clemet Obeghare and DW2 did
not sign the document, does not suggest that the Otukueku family land has been partitioned; but

36
such transaction is only voidable until set aside; Counsel referred to the case of ABIBATU
FOLAMI & ORS v. FLORA COLE & ORS (1990) ALL NLR. AT PAGE 311, RATIO: 3 where
the Supreme Court held;

Where the head of a family conveys family property without the consent
of members of the family the conveyance is valid until it is set aside. It is
only voidable at the instance of those other member of the family.

Counsel submitted that the Plaintiff filed this action in a Representative capacity before this
Honourable Court since on the 9th day of September and served same on the Defendant whom
Plaintiff claimed he met on the land in dispute when he was inspecting the entire land; that the
Defendant never challenged that the claim was not served on him and by virtue of that he must
have informed DW2 who unlawfully transferred the land in question to him; and that till on the
24th day of April 2023 when DW2 came to testify in this case, DW2 did not file any process before
this Honourable Court either to be joined as the owner of the land in dispute or challenge the locus
standi of the Plaintiff in this case.

It was submitted by counsel that the Courts are enjoined to only determined applications/prayers
that are validly brought before the courts, much more when DW2 failed to joined this suit as a
necessary party and also failed to counter-claim against the Plaintiff. Counsel referred to the case
of UZOKWE v. UZOKWE (2018) 21 WRN AT PAGE 98, RATIO: 8; that it was held as follows:

It is settled Law that a matter is said to be in issue when it is properly raised

as an issue and becomes relevant for deciding a disputed question.
OVERSEES CONSTRUCTION LTD. v. CREEK ENTERPRISES LTD.
(1985) 3 NWLR (PT. 13) 407; therefore a Court will not and ought not
deal with and determine any issue or question which was not properly
raised or prayed for by a party. EBBA v. OGODO (2003) 41 WRN 70;
(1984) SCNLR 372 AT 385, ADELEKE v. ASEMOTA (1990) 3 NWLR
(PT. 136) 94 AT 112: PER YAKUBU, JCA (PP 111-112) LINES 45-5.

Counsel for the Plaintiff submitted further that DW2 having failed to initiate any court process in
respect of this suit before this Honourable Court is an admitted fact that Otukueku's land has not
been partitioned; and that its trite law that facts admitted needs no further proof. That, as DW2
alleged that the Plaintiff had sold all the lands partitioned to Agitemi and Otukueku even under
cross examination by defense Counsel, the Plaintiff shouldn’t be the one to initiate this action
because the entire land deforested by Otukueku still remains not partitioned till date and the
Plaintiff having not claimed ownership of the land to himself, have the legal right to institute this
action on representative capacity. Counsel referred this court to the case of SHELL
PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED v. CHIEF T.
EDAMKUE & ORS (2009) ALL FWLR (PT. 489) AT 429 that the Supreme Court held thus;

37
 A person has the right to protect his family's interest in a property or title
and can sue for himself and or on behalf of his family in representative
capacity."Per Ogunbiyi, JSC [P.33] lines 20-25.

Counsel submitted that DW2 having failed to challenge the Plaintiff's evidence of how the land
devolves on Agitemi Otukueku, the eldest son of Otukueku, who inherited the land, took care of
same as the head of Otukueku family after the death of his father and as well planted rubber trees,
palm trees along side with the ones planted by his father while alive and rented same out to people
till the land devolves on his own father, Usiokolo Otukueku and thereafter to Peter Agitemi
Otukueku, down to the Plaintiff, is an acceptance/admission that the Otukueku's land has not been
partitioned; that facts not challenged remain uncontroverted which the Courts are enjoined to act
on same. Counsel referred to the case of UZOKWE v. UZOKWE (SUPRA) AT PAGE 91 RATIO:
2; that the Court held thus:

By Law, once an adversary either inadvertently or intentionally, neglects

to cross-examine a witness on a point or points, the opponent is deemed to
have admitted the evidence of that witness.

Counsel submitted that, in the case of AMADI v. NWOSUI (1992) 6 SCNJ 59; (1992) 5 NWLR
(PT. 241) 273; (2002) 1 SMC 52 at 67 it was opined by Nnaemeka - Agu, JSC;

It is a settled principle of law, that where an adversary or witness called

by him testifies on a material fact in controversy in a case, the other party
should, if he does not accept the witness's testimony as true, cross-examine
him on that fact or at least show that he does not accept the evidence as
true, where as in this case, he fails to do either, a court can take his silence
as an acceptance that the party does not dispute the facts, after all one of
the main purposes of cross-examination is to test the veracity of a witness,
see also GAJI v PAYE (2003) 30 WRN 146; (2003) 8 NWLR (Pt. 823)
583, OLUDAMITOLA v. STATE (2010) 15 WRN 1; (2010) 8 NWLR (Pt.
1197) 565, simply put the fate of these signal pieces of evidence on acts
of bad behavior are deemed or taken as admitted by the Respondent.

Counsel submitted that the defense Counsel in paragraphs 4.1 and 7.8 of his written address made
reference to Sections 137(1) and 149 of the Evidence law of Delta State and that this Honourable
Court should rely on same to determine this case.

It is the submission of Learned counsel for the Plaintiff that, Section 256(1)(c) of the Evidence Act
2011, prohibits the application of the provisions of the Evidence Act 2011 as amended in any civil
proceedings before this Honourable Court and that the said Evidence Law of Delta State being a
State law cannot supersedes the Evidence Act. Counsel referred to the case of UWAJEH v.
UWAJEH (2009) ALL FWLR (PT. 458) AT PAGE 289 RATIO: I that it was held thus;

"When a Federal Statute discloses an intention, albeit completely,

exhaustively what will be the law governing the particular conduct or

38
 matter to which its intention is directed? It is inconsistent for the law of a
state to govern the same conduct or matter. It is also trite to say that where
identical legislation on the same subject matter are validly passed by virtue
of their constitutional powers to make laws by the National Assembly and
a State House of Assembly, it would be more appropriate to invalidate the
identical law passed by the State House of Assembly on the grounds that
the Law passed by the National Assembly has covered the whole field of
the particular subject matter [ATTORNEY-GENERAL, OGUN STATE v.
ATTORNEY-GENERAL, FEDERATION (1982) 2 FNLR 4;
ATTORNEY- GENERAL, OGUN STATE v. ABERUAGBA (1985) 1
NWLR (PT. 3) 395 REFERRED TO] [PP. 302-303, PARAS H-B]

Relying on the case of UWAJEH v. UWAJEH (Supra), counsel urged this court to discountenance
all the submissions the defense Counsel made on the Evidence Law of Delta State in this case.

Counsel submitted finally in the case of OBU v. OKIGWE (2018) 39 W.R.N. AT PAGE 160
RATIO: 6; that the Court of Appeal Enugu Division held thus;

The Law is settled that where the traditional evidence of a party is cogent,
credible and unchallenged, it is sufficient to sustain a claim of title to the
land in dispute and in such case a consideration of recent acts of ownership
and possession becomes unnecessary" Per Bolaji - Yusuf JCA [P. 171] line
20.

That the Plaintiff and his witness, having unanimously elicited cogent and credible evidence in
this case, counsel urge this court to grant the Reliefs of the Plaintiff before this Honourable Court
and resolve issues two in Plaintiff’s favour, enter judgment for him and as well dismiss the
incredible and contradictory evidence of the Defendant and his witness, with a crunching cost of
N1, 000,000.00 (One Million Naira), especially as the Defendant failed to Counter-Claim against
the Plaintiff.

REPLY ON POINTS OF LAW OF COUNSEL FOR THE DEFENDANT

Learned Counsel for the Defendant submitted that the evidence did not show that the father of
DW2 exercised right over all Otukueku family land. That the evidence of DW2 was that both his
father and Agitemi maintained their rights over their respective portions of land and that this was
not challenged under cross examination by Plaintiff's counsel.

That there was no evidence of prior possession of the land in dispute from Plaintiff; neither did he
claim joint usage of the land.
That Counsel for the Plaintiff relied on FRN v. SARAKI at page 4 of his written address and
submitted that PW2's evidence with respect to the fact that the Plaintiff took permission to sell the
family land on two occasions was not challenged. Counsel submitted that where the evidence of a
witness runs in conflict with the evidence of the person who called him as witness, such evidence
39
will be treated as unreliable. That in this case, the Plaintiff stated that he has sold many lands that
he cannot count. That DW2 corroborated this saying he has sold his father's entire portions.
Counsel for the Defendant submitted further that, Plaintiff's counsel also relied on TAIWO & Ors.
v. OGUNDELE & ORS (2012) VOL. 208 LRCN and argued that the court should reject the
traditional oral evidence or history of the Defendant and DW2 because it is inconclusive and
incredible. Counsel submitted on this point that traditional history of witnesses is not expected to
come out in mathematical exactitude. That in EZEKWESILI v. ONWUEGBE (1998) 3 NWLR
(Pt. 541) 217 @ 221; the court held thus;

If evidence of traditional history of witness comes out in mathematical

exactness or exactitude, the trial court should feel more worried than
evidence of similar history when there are minor contradictions with little
or no probative value.

Counsel submitted further that in cases like this where the traditional history of both parties are in
conflict due to the assertion and the denial of whether or not the family lands have been partitioned,
the court is enjoined to adopt the principle in KOJO II v. BONSIE by testing the conflicting
traditional history by reference to facts in recent years.

That applying the aforesaid principle of law to the instant case, the court is invited to consider not
only the evidence adduced with respect to the partitioning of the family lands but to facts in recent
years that are in evidence in this court. That facts in recent years show that there is unchallenged
evidence to show that the lands were not in common usage as each gate was in possession of its
respective portion where they farm.

That secondly, the Plaintiff admitted that the Eku Traditional Council, to which he was a member,
decided that the land in Exhibit “A” was portioned to Usiokolo gate.

That thirdly, there is unchallenged evidence to show that DW2 and his family were the ones
farming on the land in dispute exclusively.

That the above facts are what corroborate, albeit, slightly the facts that there must have been a
partitioning in the olden days, otherwise there ought to be evidence of common usage. In
ODUKWE v. OGUNBIYI (1998) 6 SCNJ 102@116 R.10, the Supreme Court held thus;

The respondent having discharged the legal burden of establishing that the
land in dispute, which was originally Isagba family land, was part of or
portion of her vendor's share, of the family land following the 1954
partition, the evidential burden shifted on the appellant of introducing
evidence which if believed or accepted, would defeat the respondent's
claim. This burden, the appellant was unable to discharge.

40
Counsel for the Defendant submitted that the Plaintiff's counsel also argued as if the identity of the
land is in issue. Counsel submitted that parties are in agreement as to the actual location of the
land in dispute.

Counsel for the Defendant submitted that the Land Instrument Registration Law is inapplicable to
Delta State, that it is a Lagos State Law and that there is no such law prohibiting the admission of
deed in Delta State.

That section 56 (2) of the Delta State Customary Court Edict, 1997 is no longer an existing law
because it was operative in the military era. That the Eku Traditional Council did not claim they
have judicial powers neither did they exercised such powers. The council exercised customary
mediation and arbitration powers over the parties in Exhibit “A”..

That Counsel for the Plaintiff also erroneously argued as if the Evidence Act is the same as the
Evidence Law of Delta State. That there is no provision in the Evidence Law of Delta State that
ousts this court from applying its provision. That that provision is contained in the Evidence Act
and that there is a difference between the Evidence Law and the Evidence Act.

VISIT TO THE LOCUS IN QUO

At the visit to the locus in quo, the Court saw the Magistrate Court, Eku in Ethiope East Local
Government Area of Delat State, and opposite the Magistrate Court, Eku, the Court observed a
tarred road which ran down into a bush but the general name of the bush was not mentioned to
the court. The court was led from the said tarred road, far down into the bush. We alighted at a
place in the bush. The Plaintiff and the DW2 showed the court a land demarcated by a footpath
road at the place we were standing. We observed that one land was on the left hand side and
another was on the right hand side. Both of them unanimously stated that that place is known as
Okorode bush. The Plaintiff and the DW2 also stated that that land divided by the footpath road,
which is known as Okorode bush is the subject matter of litigation at the High Court of Justice,
Isiokolo. The DW2 stated that the Plaintiff sold that land on the right, allegedly partitioned to his
father Usiokolo and not the land on the left which allegedly belongs to the Plaintiff's father,
Agitemi and that, that was the reason the Plaintiff was summoned before the Eku Traditional
Council. That the Eku Traditional Council gave their award which same award was tendered
before this Honourable Court and marked as Exhibit "A", that it was when the Plaintiff failed to
comply with the award that he had to file a suit against him at the High Court, Isiokolo.
The parties took the court out of that site, moving deeper into the bush and we halted at a particular
spot. The Plaintiff described that place as also known as Okorode bush but DW2 disagreed with
the Plaintiff and stated emphatically that where we were standing was not Okorode bush but that,
it was Ejokpa Bush. The Plaintiff was asked to show the Court Ejokpa Bush but he pointed at a
distance far away from where the court was standing. The DW2 yet insisted that the spot we were
standing on was Ejokpa Bush and not Okorode bush. The DW2 pointed to the faraway place, where
the Plaintiff pointed at earlier, when asked to show us the said Ejokpa bush, stating that that place
was Ikpotogri Bush and the opposite direction faraway, he described as known as Obukohwo Bush.
Even though they didn’t come to an agreement as to the name of the place we were, both parties

41
in this case and the DW2 agreed in unison that, where we were standing on, was the land in dispute.
The DW2 stated that, in that Ejokpa Bush, the part where he sold to the Defendant which is the
land in dispute is the only land belonging to Otukueku in Ejokpa Bush and that the surrounding
lands in Ejokpa Bush belong to other families and that the land in dispute was partitioned to his
father Usiokolo.

COURT’S FINDINGS AND DECISIONS

We have considered the evidence led by both parties in this case and the addresses of both Counsel
for the Plaintiff and for the Defendant. The issues of determination consequently are;

1. WHETHER THE PLAINTIFF HAS PROVED HIS CLAIM TO ENTITLE HIM TO

THE RELIEFS SOUGHT VIS-À-VIS THE ISSUES FORMULATED BY COUNSEL
FOR THE DEFENDANT AND COUNSEL FOR THE PLAINTIFF IN THEIR
RESPECTIVE WRITTEN ADDRESSES.
2. WHETHER THE LANDS, THE SUBJECT MATTER OF LITIGATION BEFORE
THE HIGH COURT OF JUSTICE, ISIOKOLO JUDICIAL DIVISION AND THE
SUBJECT MATTER OF LITIGATON BEFORE THIS COURT, ARE ONE AND
THE SAME
3. WHETHER THE PLAINTIFF IS ENTITLE TO AN ORDER OF PERPETUAL
INJUNCTION OF THIS COURT RESTRAINING THE DEFENDANT AND
OTHERS FROM FURTHER DEALING WITH THE LAND IN DISPUTE?

Without mincing words, it is expedient to state that even though the Court is bound to consider
submissions of learned counsel before arriving at any conclusion in a case before it, it is not bound
to agree with the submissions in arguments and addresses.

In BRITANNIA-U NIGERIA LIMITED v. SEPLAT PETROLEUM DEVELOPMENT

LTD. (2016) 4 NWLR (PT. 1503) 541 SC, it was held that;

A Court is not bound to apply any authority it has considered in its

judgment. It has a duty to consider all authorities relied on by the
parties but it has a right and indeed a duty not to apply particular
authorities if the issue decided therein is inapplicable to the facts and law
before it.

Consequently, we will be applying submissions by Counsel in all circumstances where in our

views, such submissions will guide the court in resolving the dispute between the parties, that
justice will not only be done but will manifestly and undoubtedly be seen to be done.

From the reliefs claimed by the Plaintiff in this case, as set out earlier, we observed that relief one
is declarative in nature, relief two is damages for trespass, while relief three is injunctive in nature.

A declaration is a solemn affirmation of a right or status by a court of law. It is one which seeks
the court’s pronouncement as to the status of a named matter, thing or situation. It is one which
appeals to the court to pronounce on existing states of affairs in law in favour of a Plaintiff, as may
be discernible from the evidence adduced by the parties. See the case of AKANDA v. ADISA

42
(2012) 15 NWLR PT (1324) 538 AT 571; ENEKWE v. I.M.B (NIG.) LTD. (2007) ALL F.W.L.R.
(PT 349) 1053 AT 1073.

It was the decision of the Supreme Court in JAMES E. EGBUNIKE & ANOR. v. SIMON
MUONWEOKWU (1962) 1 SCNLR PAGE 97; (1962) 1 ALL NLR PAGE 46 SC that;
i. A declaratory judgment is discretionary.
ii. Declaratory judgment is a form of judgment which should be granted only in
circumstances in which the court is of the opinion that the party seeking it, is fully
entitled to the exercise of the court's discretion in his favour, when all the facts are
taken into account; The court will not grant a declaratory judgment when, in all the
circumstances of the case to do so, would be inequitable."

A Plaintiff who seeks a declaratory relief must show that he has an interest or right which forms a
foundation for that declaration. In other words, a declaration claimed must relate to some legal
rights or to a legal interest of which the law will take cognizance of. It is a confirmation of what
the status of affair is already or what is likely to be in connection with the subject matter of the
declaration. See NIXON v. ATTORNEY GENERAL (1930) 1 CH 566 AT 674;
INTERNATIONAL TEXTILE INDUSTRIES NIGERIA LIMITED v. DR.
ADEMOLAOYEKANMUADEREMI AND ORS (1999) LPELR – 1527 (S.C) (PP 34 – 35 PARA
F-B).

A declaration must not to be vague or nebulous about what it purports to declare, rather, it must
be unequivocal, unambiguous, precise and clear, leaving no room for doubt about the rights or
status declared, see ATTORNEY GENERAL LAGOS STATE v. ATTORNEY GENERAL
FEDERATION &ORS. (2003) 7 MJSC 1 AT 6.

In addition, it has been held that a court do not grant declaration on the basis of admission by the
adversary or the weakness or absence of the defense without hearing evidence and being satisfied
with such evidence, even though, the weakness of the defense may serve to strengthen the claim
in deserving circumstance. See BELLO v. EWEKA (1981) 1 S.C 101 AT 102 ; OMISORE v.
AREGBESOLA (2015) 15 N.W.L.R (PT 1482) 205 AT PAGES 297 AND 298.

The plaintiff has the burden to satisfy the court that he is entitled to such declarative reliefs sought
from the court. See ELEDU v. EKWOABA (1998) 12 NWLR (PT. 578) PAGE 320 SC; ELENDU
V. EKWOABA (1995) 3 NWLR (PT. 386) PAGE 704 CA; EZECHIGO v. GOVERNOR
ANAMBRA STATE (1999) 9 NWLR (PT. 619) PAGE 386 CA; KOKU v. KOKU (1999) 8 NWLR
(PT. 616) PAGE 672.

In an action for declaration, the learned trial Judge has judicial discretion to grant or refuse the
grant of reliefs but this judicial discretion must be exercised judicially and judiciously. Further to
the above, it is well established that declaratory reliefs are not granted as a matter of cause or
routine. It is entirely discretionary and in the exercise of the court’s equitable Jurisdiction and it is
only made when a court is fully assured, firstly, as to the precise nature of the title or status in
respect of that which a declaration is sought and there must be evidence before the court satisfying
it that a title or status of the nature claimed has been established. See ATUANYA v. ONYEJEKWE
(1975) ALL N.L.R 60 AT 69; MATANMI v. DADA (2013) 7 N.W.L.R PT (1353) 319 AT 343.

43
The law is well defined on the methods of establishing title to or ownership of land by a
claimant/plaintiff or a counterclaimant. We will now describe the methods of proving title to land.
For a claimant/plaintiff or a counterclaimant to succeed in a claim for title to land, he must first
prove his title by at least one of five methods of proving title to land as stipulated in the case of
IDUNDUN v. OKUMAGBA (1979) 9 – 10 SC 227 at 246 – 250, namely;

I. Traditional evidence.
II. Production of documents of title.
III. Proof of acts of ownership extending over a sufficient length of time, numerous
and positive enough as to warrant the inference that the persons exercising such
acts are the true owners of the Land.
IV. Acts of long possession and enjoyment of the land.
V. By proof of possession of adjacent land in dispute in such circumstances which
render it probable that the owner of the adjacent land is the owner of the land in
dispute.

There are scores of other authorities in support of this age-long principle of proof of title to or
ownership of land and a person is required to establish only one of them to succeed. See the case
of MOGAJI v. CADBURY NIG. LTD. (1985) 2 NWLR (PT.7) 393; ALLI v. ALESINLOYE
(2000) 6 NWLR (PT.600) 177.

We have perused the claim and as well as the evidence adduced by and on behalf of the parties in
this case and it is clear to us that the parties are relying squarely on traditional history
It must be borne in mind that for the Plaintiff to succeed in his claim before this Court which is for
a declaration of title to land predicated on traditional history, he must plead and lead cogent and
reliable evidence as to how the land was founded by the named founder, otherwise his claim will
fail. Where a party relies on traditional history, he is duty bound to prove by evidence the founder
of the land, how the land was founded, and the names of the persons who owned the land from the
founder to the current title holder. See the case of ADDAH v. UBANDAWAKI (2015) All FWLR
(PT 775) 200.

A party claiming declaration of title to land through traditional history must lead evidence showing
the names and histories of his ancestors in such a manner as to disclose a continuous chain of
devolution from one generation to the other, until the land finally devolved on him. See
AKINLOYE& ANOR. v. EYIYOLA & ORS. (1968) NMLR 92 AT 95 (SC); TOTAL NIG. LTD.
v. NWAKO (1978) 5 SC 1 AT 12; ELIAS v. OMOBARE (1982) 5 SC 25 AT 57 - 58.
The law has remained well settled and become so notorious to the effect that, to establish
traditional history of land relied on as root of title, a plaintiff must, not only plead the name of the
founder and others after him upon whom the land devolved to the last successor(s) but also lead
such evidence without leaving gaps or creating mysterious or embarrassing linkages which have
not been and cannot be explained, the chain of descent in the genealogical tree must be continuous
and unbroken. In other words, the devolution i.e. naming them one by one and the evidence in
support must be reliable, credible or possible otherwise, the claim for title will fail. See

44
NWOKOROBIA v. NWOGU (2009) 50 WRN 1 AT 20 & 24; IROAGBARA v. UFOMADU
(2009) 30 WRN 1 AT 15.
In EZE v. ATASIE (2000) 10 NWLR (PT. 676) 470 AT 485 - 486, his Lordship, Katsina-Alu, JSC
(as he then was) succinctly reiterated the law to the effect that;
"For the plaintiffs to succeed on the state of pleadings, they must satisfy
the Court by credible evidence as to the origin and devolution of the title
in respect of the land in dispute down to themselves.
See the case of ALHAJI ELIAS v. OMO-BARE (1982) 5 SC.
Also, in ALLI v. ALESINLOYE (2000) 4 SCNJ 264 at 284, the Supreme Court again stipulated
copiously that
A plaintiff who claims title to land vide traditional history, especially through an act of first
settlement, must plead and in evidence, establish the following facts namely:
(1) The founding of the land, that is how it was founded;
(2) The person who founded it;
(3) The person(s) who exercised original acts of ownership over the land and
(4) The persons who had held title or on whom title had devolved in respect of the land
since its founding, before the plaintiff acquired control of the land.
See ANYAFULU v. MEKA (2014) 7 NWLR (Pt. 1406) 393 At 419.
The Plaintiff traced his root of title to inheritance of the land in dispute in respect to his connection
to and descent from his ancestor called, Otukueku. Otukueku begat Agitemi and Usiokolo. Agitemi
begat the Plaintiff and Usiokolo begat Omote Usiokolo Otukueku(the DW2 in this case). The
Defendant led evidence that he derived his title from the DW2(Omote Otukueku,), the cousin of
the plaintiff, who conveyed the land in dispute to him. Otukuetu exercised various acts of
ownership on the land in dispute and upon his death, the land of Otukueku devolved on his
children, Agitemi and Usiokolo. They also exercised various acts of ownership on the land. Upon
their death, the land of Otukueku devolved on his grandchildren, which includes the Plaintiff.
It is trite that a Plaintiff is expected to succeed on the strength of his own case and not on the
weakness of the defense. The onus is on the Plaintiff, is to adduce credible evidence to prove his
case, before it becomes necessary for the defendant to call evidence to rebut the Plaintiff’s
assertions. See the case of NWAGA v. REGISTERED TRUSTEES RECREATION CLUB
(2004) F.W.L.R (PT. 190) 1360 RATIO 2 & 6.

It is also trite that in every civil case, the standard of proof is on the balance of probability or by a
preponderance of evidence. See PALI v. ABDUL (2019) 5 N.W.L.R (PT 1665) 320 AT 334.

The law is firmly settled that the burden of proof is not static as it shift from one party to another
in civil proceeding, as the party asserting the existence of a fact is required to discharge the burden
placed on him or her which if successfully discharged, the burden then shifts to the other party to
adduce evidence in rebuttal to the evidence of the asserting party as to the non existence of a fact
asserted by the opponent.

45
Also, the burden of first proving existence or non existence of a fact in civil cases lies on the party
against whom the judgment of the court would be given if no evidence were produced on either
side.
It is trite that crucial facts which are admitted need no further proof and same will be taken as
established. See AGBANEBO v. U.B.N. LTD (2000) 7 N.W.L.R (PT. 358 511AT 519).

Furthermore, the law is firmly settled that:

"The first duty of a plaintiff who comes to Court to claim a declaration of
title is to show the Court clearly the area of land to which his claim relates.
(See AKINOLU BARUWA v. OGUNSHOLA & ORS. 4 WACA 159).
It is also trite law that before a declaration of title is granted, the land it relates must be identified
with certainty (See UDOFIA v. AFFIA 6 W.A.C.A. 216; KWADZO v. ADJEI 10 W.A.C.A. 274,
76).
If it is not so ascertained, the claim must fail and it must be dismissed. See OLUWI v. ENIOLA
(1967) N.M.L.R. PAGE 399" per Fatayi - Williams, JSC (as he then was);
The same principle was restated by the APEX COURT IN ODICHE v. CHIBOGWU (1994) 7 -
8 SCNJ 317 AT 323; to wit:
In a claim for a declaration of ownership or exclusive possession of a piece
of land, the first and foremost duty of the claimant is to describe the land
in dispute with such reasonable degree of certainty and accuracy that its
identity will no longer be in doubt:-
(i) The boundaries of the area and location of the land he is claiming;
(ii) His neighbours and their names on all sides of the boundaries. Where
some of the boundaries are marked by rivers, stream or road should be
named;
(iii) Any other physical features on the land like rock, buildings, trees, etc,
that may assist in its identification.

In KWADZO v. ADJEI (1944) 10 WACA 274; it was held thus;

It cannot be over-emphasized that before a declaration can be granted, the
area of land to which it relates must be ascertained with certainty and
precision, the test being whether a surveyor can from the record produce
an accurate plan of such land.
Therefore, a declaration of title to land cannot be made in respect of an unidentified land. Further
see: EIGBEJALE v. OKE&ORS. (1996) 5 NWLR (PT.447) 128;

Before delving into the issue of identification and proving title to land in dispute in this suit, it will
be of utmost importance to expressly declare whether the land in dispute before this Court is the

46
same as the subject matter of litigation as the land in dispute before the High Court of Justice,
Isiokolo.
We could not help but notice how the evidences in this case were muddled up so badly with the
evidences of the case before the High Court of Justice, Isiokolo and it took extreme patience and
attentiveness to understand that the land, subject matter in Exhibit "A" and the land in dispute
before this Court are two different lands altogether.
In their submission, counsel for the Defendant stated thus;
.. The land which was the subject matter of the Eku Traditional Council is
not the same as the one in dispute in this case…
The DW2 also stated emphatically in his evidence that the land, subject matter of
litigation at the high court of justice, isiokolo judicial division, is different for the
subject matter before this court.
This court also went for an inspection of the land in dispute and from our observations at the
inspection of the land in dispute, including the evidence of the parties before this Court, the land
in dispute has no relationship with the land, subject matter of litigation before the High Court of
Justice, Isiokolo, save that they were both deforested by Otukueku.
Also from the evidence led by both parties in this case, we were clear on the fact that both parties
did not particularly agree on an exact name the land in dispute is described as.

In his claim, the Plaintiff described the land in dispute as lying, situate and being at Okorode bush
and in his evidence-in-chief the Plaintiff stated that in 2019, he discovered that the Defendant
trespassed in an area of the Otukueku family land, called Okoroede bush, measuring approximately
50 plots of 100ft by 50ft, per plot. The Defendant, through the DW2, led evidence, describing the
land in dispute as being at Ejokpa Bush.

It is settled that where the identity of the land is in dispute, there is need to produce a survey plan,
particularly if the facts produced in evidence cannot establish with certainty, the identity of the
said land.

It is necessary to look at the evidences of the parties in this case at this crucial moment to ascertain
whether or not the area in dispute has not been properly or precisely identified by the parties to
necessitate the production of a litigation survey plan in proof of the size and location of the land
in dispute.

In the words of Oputa J.S.C in the case of EZEUDU v. OBIAGWU (1986) LPELR 1213 (SC),

The Court sits to resolve issues, when the identity of land is not an issue,
then the mere production of the plaintiff's plan in evidence is enough to
establish the identity of the land.

Apart from the Plaintiff and the DW2, no other witness testimony made an attempt to describe the
land in dispute precisely to establish the name, by which the land in dispute is known. Plaintiff

47
alleged that it is in Okorode bush and in the Defendant’s case, it was called /referred to as being at
Ejokpa Bush.

The above shows that, it is settled that the Plaintiff and the DW2 are not in agreement as it relates
to name of the exactly location of the land in dispute.

It is in evidence that, Otukueku has land at Okorode along Oku Echi Road, another land is at
Obukohwo also in Eku, another land is at Ejokpa and he also has land in Ikpotogri. Even though
the Plaintiff, in his evidence never made mention of the names of the different land deforested by
Otukueku, he never denied the evidence of the Defendant.

The uncertainty as to what exactly the land in dispute is known as, prompted a visit to the locus in
quo especially since the parties produced no survey plan. From our observations at the inspection
of the land in dispute, it was clear that the location of the land, subject matter of litigation, at the
High Court of Justice Isiokolo, is different from the location of the land in dispute before this
Court.

At the inspection of the land in dispute, the Plaintiff and the DW2 agreed that the land, subject
matter of litigation at the High Court of Justice, Isiokolo, is known as Okorode bush. Moving far
further from what both of them agreed as known as Okorode bush, the Court arrived at the area in
dispute, with both parties taking the lead. At the area in dispute, the Plaintiff also referred to it also
as Okorode bush while the DW2 called it Ejokpa bush. The Plaintiff didn't show the Court exactly
where Ejokpa bush is located precisely from his point of view, but he pointed at a faraway place.
The place where Plaintiff pointed at was also pointed at by DW2 as Ikpotogri bush and DW2
pointed at the opposite direction as Obukohwo bush. We also observed that the land is a large land
located at the same spot but different potions of it were given different names. And from the
description of the parties, it was evident that all the lands of Otukueku are not together. After
getting to Okorode bush, the parties showed the court some land, which the court passed through
before getting to the land in dispute. Those lands we passed through to the area in dispute belong
to other people as explained by the parties to the court.

To our minds, the evidence of the DW2 seemed much more believable than that of the Plaintiff's,
especially since the Plaintiff clearly already agreed that the first land, subject matter of litigation
at the High Court of Justice, Isiokolo is known as Okorode bush and he called the land, subject
matter of litigation before this court, Okorode bush even though they are not located next to each
other. Consequently, since it is clear to us that the land in dispute is known to the parties,
notwithstanding the names by which the parties refer to the land and they are ad idem on the
location and description of the land in dispute, it follows therefore that, whatever minor differences
there were in the description of the land in dispute by the parties do not detract from the fact that
the location of the land in dispute is known to them.

We hereby hold that the land in dispute is known as Ejokpa bush and that the location of the land
has been established by the parties, therefore, it is no longer an issue in dispute before this Court
as it was clarified at the proceedings conducted at the locus in quo on 14th September, 2023, by
this Court,

48
However, the Plaintiff having therefore established the identity of the land in dispute, in order to
succeed in his claim must also prove title. See MALGWI v. SONG (2012) ALL FWLR (PT.
624)43, 44 " PER HUSSAINI, JCA. (P.20,PARAS.B-E).
Another issue to consider is the relevance of Exhibit “A” to this case. Was the tendering of Exhibit
“A” necessary for the just determination of the dispute between the parties? What are the legal
implications for tendering same?

Exhibit “A” is an award of an arbitration panel, of the Eku Traditional Council.

It has been held that being a decision of a non-judicial body, it is not automatic that a decision
relied on as the outcome of a customary arbitration, will create an estoppel to bar further
proceedings.

Customary arbitration is said to be valid upon fulfillment of certain conditions. In the case of,
OKEREKA v. NWANKO (2003) 4 SC PT. I 16 AT 29, it was held that the conditions include;

1. If the parties voluntarily submit their dispute to a non-judicial body.

2. The indication of the willingness of the parties to be bound by the decision of the non-
judicial body or a freedom to reject the decision, where not satisfied.
3. That neither of the parties has resiled from the decision so pronounced.

In EGBESIMBA v. ONUZUIKE (2002) 15 NWLR [PT. 791] P. 466; the justices of the Supreme
Court also stated the ingredients which must be present to give customary arbitration validity.
Ayoola JSC declared that;

The four ingredients usually accepted as constituting the essential

characteristics of a binding arbitration are:
1. Voluntary submission of the dispute to the arbitration of the individual
or body
2. Agreement by the parties either expressly or by implication that the
decision of the arbitrators will be accepted and binding;
3. That the arbitration was in accordance with the custom of the parties;
4. That the arbitrators reached a decision and published their award.’

The Defendant tendered Exhibit "A" in this case.

Counsel for the Defendant submitted that the essence of tendering Exhibit “A” was to establish
the fact that the Otukueku family land has been shared and that was why the Eku Traditional
Council awarded that land to DW2.

Against the submission of learned counsel for the Plaintiff, we do not think Exhibit "A", award in
favour of Omote Otukueku from Eku traditional council which was tendered by the Defendant in
this case, was so tendered to be evidence of the partitioning of the land of Otukueku, and therefore,
creating an Estoppel. Even though by implication, the council, having decided in its award, that a
part of the Otukueku family lands, belongs to DW2, could support the fact that the lands have been
partitioned, we think Exhibit "A" was tendered to show how a neutral third party sat to deliberate
on a dispute which arose from one of the lands of Otukueku family and what decisions were arrived
49
at after an investigation on the states of affair. It is an established fact in this case, that the award
of the Eku Traditional Council is indeed a fact in issue, in the case pending before the High Court
of Justice, Isiokolo, as the award was delivered by the council on the land subject matter of
litigation before the High Court of Justice, Isiokolo Judicial Division and this court is not bound
by that award especially as that award had nothing to do with the land in dispute before this Court
and the suit at the High Court of Justice, Isiokolo Judicial Division is yet to be determined.
Notwithstanding that the land in dispute before this court and the land in dispute before the High
Court of Justice, Isiokolo Judicial Division were deforested by Otukueku and it is a part of the
estate of Otukueku, this court must do substantial justice to this case by making its findings and
observation and eventually, come to a logical conclusion.

That being established, it is important to state here that, it is trite that crucial facts which are
admitted need no further proof and same will be taken as established. See AGBANEBO v. U.B.N.
LTD (2000) 7 NWLR (PT. 358 511AT 519).

Consequently, it is not in dispute that the said Otukueku deforested the land in dispute. It is also
not in dispute that DW2 (Omote Usiokolo) and the Plaintiff in this case are first cousins. That
Agitemi begat the Plaintiff while Usiokolo begat the DW2. The Plaintiff and DW2 (Omote
Usiokolo Otukueku) led evidence in proof of these facts and that Otukueku, who deforested the
land in dispute is their grandfather. The PW2 also corroborated the above statement. The parties
further agreed that Otukueku had land at Okorode bush, Ejokpa bush, Ikpotogri bush and
Obukohwo bush.

The Plaintiff sued in a representative capacity stating firmly that the Defendant trespassed into the
Otukueku family land measuring 50 plots of 50ft by 100ft each. The Defendant asserts that the
land was sold to him by the DW2 (Omote Usiokolo Otukueku).
The DW2 alleged that the land in dispute he sold to the Defendant, is Usiokolo's (his father) portion
from the partitioning allegedly done between Agitemi and Usiokolo, by members of the family of
Otukueku. DW2 further stated that the Plaintiff did not sue in a representative capacity for the
Otukueku family but for theAgitemi family.
The next questions are, have the lands of Otukueku actually been partitioned as alleged by DW2?
Assuming they have not been partitioned, can DW2 successfully alienate the Land in dispute
belonging to Otukueku family, being a family land? What form of ownership title was transferred
by the Usiokolo gate to the Defendant in this case as it relates to the land in dispute? We believe
that the answers to these questions will be revealed gradually as we progress in the analysis and
critical scrutiny of facts before this Court.
The Plaintiff led evidence that the lands of Otukueku have not been partitioned and it behoves on
him to first prove that the Otukueku family lands have not been partitioned with sufficient
evidence. The Plaintiff called the PW2, Sunday Akpode, and he gave evidence as a family member
of the Otukueku extended family, who further corroborated the evidence of the plaintiff that the
land of Otukueku has not been partitioned. However, the crucial question at this point is, was the
evidence of PW2 stating that the land of Otukueku has not been partitioned, sufficient evidence to
establish that the land in dispute has been partitioned?

50
DW2 led evidence that the lands of Otukueku has been partitioned between Agitemi and Usiokolo
by members of the family of Otukueku
It is trite that he who alleges that a set of facts exist must prove that those sets of facts exist. The
Latin maxim is "Onus probandi actor iincumbit", which simply translates to "He who asserts must
prove." Simply put, it is a general principle that a party who brings up a particular issue is the one
who has the burden of proof; it determines which party is responsible to prove an assertion made.
It is also trite that, it is not enough for a party claiming that family land had been partitioned to
merely make such an assertion. He needs to plead and lead credible evidence in proof of certain
very salient facts which would go to establish that there was in fact a partitioning of the land. Such
facts which need to be proved include;
i. The people who called for the Partition
ii. Those who were present when the partition took place
iii. Who actually did the partition for the family;
iv. Amongst whom was the land partitioned and
v. Why the partition took place.

Where the Defendant in this case fails to lead sufficient evidence of partitioning as required by
law, judgment will be entered in favor of the Plaintiff. This is the position in plethora of cases
including; G. OLORUNFEMI & ORS. v. R. E. ASHO & ORS. (2000) 2 N.W.L.R. (PT. 642) PG.
143 AT 163 PARAS D – E ; THEOPHILLUS O. JAIYEOLA v. OLAOJOABIOYE (2003) 4
N.W.L.R. (PT. 810) PG. 397 AT 419 PARAGRAPHS A – C.”

Now, has the Defendant through the DW2 been able to prove that the lands have been partitioned
which will consequently affect positively or negatively, the title of the Defendant in this case?
DW2 led evidence of the partitioning of the Otukueku family lands. The Plaintiff led evidence that
the lands of Otukueku have not been partitioned and he called PW2 who further said that the land
has not been partitioned, but they adduced no further evidence, stating the reasons why the lands
were not partitioned.

DW2 did not only lead evidence that the land has been partitioned but he also described in his
evidence the manner it was done.
In his evidence, DW2 stated thus;

The entire lands belonging to my grandfather have being shared between

Agitemi and Usiokolo, the land of Otukueku was shared by his extended
family, the Eruotor family. My father Usiokolo told me, Akpoede and
Akpowara of the Eruotor family shared the land as representatives of the
Eruotor family. Akpoede and Akpowara are brothers of my grandfather
Otukueku. Apart from the land in dispute, Otukueku has land at Okorode
along Oku Echi road, another one is at Obukoku also in Eku, another land
is at Ejokpa and the one in Ejokpa is the one in dispute and finally there’s
one in Ikpotogri in Eku. According to my father Usiokolo, the land at
Okorode was shared between the two brothers Agitemi and Usiokolo, a
foot path divided the land into two. One side of the land belongs to one
brother and the other side belongs to the other brother. The land at Ikotogri

51
 was given to Agitemi and the other land which is at Edokpa was given to
Usiokolo. The land at Obukoku was shared to Agitemi because he was the
older son. According also to my father, the property of Otukueku which
has not been shared in the Otukueku family compound, located at NEPA
junction, Eku. To my knowledge, the two brothers, Agitemi and Usiokolo
were satisfied with the sharing especially as there were no complaint from
them and they grew up without any issues emanating from the sharing of
the land. The land shared to my father , Usiokolo, we farmed on it and
there was no trouble until now."

In his submission learned counsel for the Defendant argued that the nature of the evidence led by
DW2 is traditional oral evidence of what transpired before he was born as narrated to him by his
father. That in the case of TAIWO v. TAIWO (1958) 3 FSC 80 @ 82, the Supreme Court laid the
foundation that partition need not be in writing before it could be effective.

We are in agreement with learned counsel for the Defendant on this position. By its nature,
evidence of traditional history is hearsay which would ordinarily be inadmissible, but it was
elevated to the status of admissible evidence. Thus, it must be established through uncontradicted,
believable evidence, hence, omission to do so, the evidence might be held as inconclusive and will
be fatal to the Defendant’s alleged title to the Land in dispute which was alienated to him by the
DW2.

Even though from the above, the DW2 named those who alleged actually did the partitioning for
the family, amongst whom the lands were partitioned, the sharing formula of how the lands were
shared and who gets what, from the above, has evidence been sufficiently and satisfactorily
adduced by DW2 that the lands of Otukueku has been partitioned, that the weight of the pendulum
should be tiled in his favour especially as, no other family members corroborated his assertions?

PW2 stated that the lands of Otukueku have not been partitioned. PW2, being Sunday Akpoede.
PW2 did not describe to this Court how exactly he is related to the Otukueku except that he is a
member of the Eruotor family.
Counsel for the Plaintiff in his written address argued that, PW2 is Sunday Akpoede and that he is
a son of Akpoede who DW2 alleged shared the land between Agitemi and Usiokolo.

It is trite that address of Counsel, no matter how brilliant, is never a substitute for evidence needed
to prove a case. See ACCESS BANK PLC v. K.C. INTERNATIONAL LTD (2018) LPELR-
43668(CA). SEE ALSO ALIUCHA & ANOR v. ELECHI&ORS (2012) LPELR - 7823 (SC);
OYEYEMI&ORS v. OWOEYE& ANOR. (2017) LPELR - 41903 (SC); AJAYI v. TOTAL NIG.
PLC (2013) LPELR - 20898 (SC)." PER MBABA, J.C.A. (P. 67, PARAS. A-B.

Counsel for the Defendant submitted in their final address thus; one of the ways in which courts
may infer that there was indeed a partition is to critically look at the totality of the evidence to see
how each party to the alleged partition dealt with the portions of land allegedly shared to them.
Counsel for the Defendant submitted further that partitioning of a family land is a question of fact
and that the Defendant has buttressed his claim with the evidence of DW2 and Exhibit “A” as well

52
as the admission made by the Plaintiff under cross examination. That, Time Tur, JCA in
ORAEZUE v. IGBONEMIE (2017) LPELR - 42842 (CA) AT PAGE 32-33 B-D stated thus;
The sharing of property amongst family members followed by subsequent
sale or purchase by either allottee, seems to me constitutes an act of
partition.

On inheritance, the custom and tradition of the Urhobos has been judicially noticed by this Court.
In the Urhobo native laws and customs, a deceased man intestate estate, upon his death are shared
by the family of the deceased amongst his different gates (wives). The family fixes a date and a
venue where all the beneficiaries of the deceased gather for the sharing. The beneficiaries do not
include the wives of the deceased and all or some of the properties of the deceased will be divided.
During the time when the family is yet to decide or come to an agreement to divide the properties
of the deceased man, the oldest son of the deceased will hold the properties of his father in trust
for the benefit of all beneficiaries (the younger siblings), pending when such partitioning or sharing
is carried out by the family. A deceased man’s properties who died intestate are shared not to his
wives but to the children of the deceased and usually, the wives are referred to as gates of the
deceased man

The question is why were the lands not partitioned as alleged by the Plaintiff and PW2,
immediately after the death of Otukueku?

Notwithstanding whether or not the lands of Otukueku have been partitioned, we think it is
necessary to ask, in what manner were the lands of Otukueku, which the plaintiff alleged had not
been partitioned, dealt with during the time when Agitemi and Usiokolo were alive and how was
it dealt with after their death? The evidence of the DW2 was that the land was partitioned between
the two brothers, Agitemi and Usiokolo and that they have been in possession of the land in dispute
before transferring ownership title to the Defendant.

At this point in the interest of justice, it is important for this Court to look into the rest of the
evidence adduced by the parties whether it can be reasonably inferred that there was never a
partitioning carried out on the land of Otukueku or that there was indeed a partitioning of the
Otukueku family lands between Agitemi and Usiokolo gates.

There are evidences before this Court from the Plaintiff, PW2 and DW2 that the Plaintiff sold
some land of Otukueku after the death of Usiokolo, which as alleged in the Defendant's case,
through DW2, has been partitioned but the Plaintiff's case is vehemently opposed to the fact that
partitioning was done between the two sub families of Otukueku being Agitemi and Usiokolo
families. There was no evidence placed before this Court that either Agitemi or Usiokolo alienated
any portion of the Otukueku family lands. In other words, neither Agitemi nor Usiokolo while they
were alive alienated the Otukueku family lands.
Plaintiff admitted that the Omote Usiokolo Otukueku, filed a case against him at the High Court
of justice, Isiokolo Judicial division and that one of the claims in that suit is that, he has sold all
the land shared to his father, Agitemi Otukueku and he responded by filing a statement of defense.
Plaintiff explained further that Omote Otukueku alleges that the land deforested by their
grandfather has been partitioned between the two children of Otukueku, Agitemi and Usiokolo,
and that according to the partitioning as alleged by the said Omote Usiokolo, the land on the left
53
belongs to the Plaintiff’s father Agitemi and the land on the right belongs to the Omote Usiokolo
Otukueku’s father. Plaintiff stated further that the said Omote Otukueku alleges that he, the
Plaintiff, has started selling their father’s land but Plaintiff denied selling any part of their
grandfather’s land. Plaintiff further denied that he sold portions of land on the right hand side, that
the land he (Plaintiff) sold is on the left hand and that the land sold on the left, the said Omote
Otukueku never challenged him. Plaintiff explained that it is not true that he sold land on the right
as alleged by Omote Usiokolo Otukueku and that the claim against him at the High Court of justice,
Isiokolo, is that he sold land on the right side and not the land on the left side but that, that position
of Omote Usiokolo in that suit, is incorrect. Plaintiff affirmed that, the land sold by him was sold
under the permission and authority of his late elder brother, Peter Otukueku. Plaintiff stated that
he prepared documents for the land sold by him on the left hand side but Omote Otukueku did not
sign on those documents he prepared for the people he sold land to on the left even though Omote
Otukueku is a principle member of the family of Otukueku being the head of Usiokolo family.
Plaintiff continued that the documents he prepared for the purchasers were Deed of Conveyance.

The Plaintiff further stated in his evidence that he is the head of the Agitemi family and also the
head of the Otukueku family at large. He further stated that Omote Otukueku is the head of the
Usiokolo family being the first son of Usiokolo
The Plaintiff stated that he never sought for the permission of the Usiokolo family neither was he
granted such permission by DW2 before he sold lands of the Otukueku family but the Plaintiff
alleged that he took permission from the Eruotor family, the bigger family of Otukueku.
Also, The PW2 in his examination in chief after stating that the lands of Otukueku has not yet been
partitioned further stated that the family of Eruotor gave the Plaintiff leave to sell some of the land
of Otukueku on different occasions.

The evidence of PW2 above corroborated the Plaintiff’s testimony that Eruotor gave permission,
excluding completely the consent of the Usiokolo gate. Plaintiff stated that he sold those lands
exclusively without the signature of the Usiokolo gate as one of the vendors or a witness.

Now assuming the lands have not been partitioned, why should an alleged trustee of family
properties deal with the subject matter of inheritance in a manner which is inconsistent with the
interests/benefits of some beneficiaries of the family lands unless perhaps they had been
partitioned?

The Plaintiff in his evidence stated precisely how the land in dispute allegedly devolved on him
from his grandfather who deforested the land. He stated thus;

My grandfather Otukueku deforested the Land in dispute. Otukueku, after

the deforestation planted Cocoa Yam, Plantain, Rubber trees, Palm Trees,
Cassava and he gave some parts to some people to farm on. Otukueku, had
2 sons, namely; Chief Agitemi Otukueku and Samuel Usiokolo Otukueku.
Upon the death of my grandfather, my father, Chief Agitemi, took control
over management of the properties belonging to my grandfather and he
continued from where my father stopped. When my father died, my uncle,
the younger brother of his father, Samuel Usiokolo Otukueku, took over
management of Otukueku land, being the oldest male child of the
Otukueku family. My uncle inherited the land of his grandfather. My

54
 Uncle, Samuel Usiokolo died in 2011 and the management of the
properties of my grandfather fell on my older brother Peter Otukueku since
he was the next oldest male child of the Otukueku family after the death
of my uncle. My older brother Peter Otukueku then head of the family was
a civil servant and for that reason, Peter Otukueku appointed me to manage
our grandfather’s land and that consequently I started farming on the land
in dispute. Upon the death of Peter Otukueku in 2016, I became the head
of Otukueku family of Eku and automatically the management of his
grandfather’s property devolved on me even though his uncle Usiokolo
had children before his death. When my older brother, Peter Otukueku,
took over management of the land, no partitioning of the Otukueku family
land was done between the Agitemi’s children and Usiokolo’s children,
the two children of my uncle are Usiokolo are Felicia Otukueku and
Omote Moses Otukueku. Presently I am the head of the Otukueku family
and I have not partitioned the family properties between the children of
Agitemi and Usiokolo.

From the above, the Plaintiff showed how Otukueku, Agitemi and Usiokolo allegedly exercised
rights of ownership, which obviously did not include alienation of portions of the land of Otukueku
by Agitemi and Usiokolo, the sons of Otukueku. It was stated that they only farmed on the land
and this position was agreed upon by all parties in this case.

Both the Plaintiff and PW2 stated that the Plaintiff sold portions of the lands of Otukueku with the
authority of the larger family of Otukueku, which is the Eruotor family, although, DW2 alleged
that the Plaintiff has sold all lands shared to Agitemi, the Plaintiff's Father.

Under cross-examination of PW2, he admitted that the Plaintiff in this case sold only 2 lands and
it was done when Peter Otukueku, the older brother of the Plaintiff the then most senior man in
the family, was still alive and that they were looking for money to take the said Peter Otukueku
abroad for treatment. That when the Plaintiff informed the family about the position of things, they
instructed him to sell 2 plots of land and use the proceeds of sale, to take Peter abroad for treatment
but Peter didn’t survive the ailment. PW2 further explained that the second land sold was during
the reign of Peter as the head of the family that Peter had a Court matter and the family also
approved the sale of that land. P W2 admitted that Omote (PW2) never signed any document
because the two lands, the family gave instruction for their sale.

While from the Defendant's case, DW2 alleged that the Plaintiff has sold all the land partitioned
to his father Agitemi and now seek to start selling from the lands partitioned to his father, Usiokolo.
The common ground where both parties met here is the fact that the Plaintiff indeed sold lands
which was the subject matter of an inheritance by two gates (Agitemi and Usiokolo gates).

At this point, we paused briefly to think, which family gave the approval for the sale of the
Otukueku family land without the consent of all who had legal rights to portions of those
properties? Why was the Usiokolo gate of the Otutueku family, completely ignored in the decision
making of whether or not to alienate the Otukueku family lands for any reason whatsoever? What
exactly are the duties of a family in the partitioning of a deceased person’s properties? Does the

55
family of the deceased person wield unfettered power/authority over a deceased property? Do they
have the right to authorize or approve the sale of properties for the benefit of some members of the
family thereby completely disregarding the rights and interest of other principal members of the
family? Do they have the right to strip members of a family of their rights to inheritance by
authorizing a sale of family land by either the head or principal members of a family? Can they
authorize, upon the request of a family member, the disposing of family land by sale or otherwise,
especially when such lands have not been partitioned by them for the benefit of the one who made
the request?
To the above questions, the Plaintiff gave no concrete or convincing answers to this court which
we can safely rely on.

The position is that, the fact that the larger family of a deceased person authorized either the head
or principal members of a family to sell a deceased person's properties does not automatically
make those sales lawful. It has the same effect as though only the head of the family or only a
principal member of the family sold the property which is void without the consent of the head of
the family or voidable in respect of a sale by a principal member without the consent of the head
of the family.

Now, can the evidence of PW2 be safely relied upon to prove or established that the lands of
Otukueku have not been partitioned being a corroborated testimony of the Plaintiff?

PW2 from the Eruotor family never led evidence in proof of who his father was. Assuming but not
conceding that Akpoede who the DW2 alleged partitioned the land, is the father of the PW2, PW2
led no evidence establishing how his relationship with his father was to suggest how well he knew
his father. The said Akpeode who was described by the DW2 as the one who partitioned the land
was not called as a witness and the pw2 never said that his father categorically informed him that
the lands of Otukueku has not been partitioned amongst the beneficiaries of the Otukueku,
assuming Akpoede is indeed deceased now.

PW2 admitted under cross examination that, the Plaintiff even as a Chief of the Eku Traditional
Council was summoned before the council. PW2 also stated that the Eku traditional Council heard
from both (parties and eventually asked the Plaintiff and the said Omote Otukueku to go home and
settle their dispute within their family and that the Eku traditional Council never gave judgment in
that dispute.

This Court does have evidence before it from both the Plaintiff in this suit and theDW2 that they
submitted their dispute before the Eku traditional council and judgement was delivered by the
council and Exhibit “A” is the written decision of the council. Even though PW2 said he went with
the parties, he led evidence that judgement was not delivered by the council but that they were
only asked to go back to the family for the settlement of their dispute.

In the words of PW2;

...the dispute before the Eku traditional Council and the judgment
delivered by the council are usually in writing but the Council never
delivered a judgment more so in favour of the Defendant. The council only
said we should go home and settle the matter. …Omote Otukueku was
called to the family meeting on 3 occasions but he refused to attend and

56
 the decision of the family was that they know who the land was sold to;
they should take them to court to recover their land.

In his evidence in chief, PW2, firstly stated that the Plaintiff never sold land of the Otukueku
family and under cross examination. Further, PW2 admitted that the Plaintiff in this case sold only
2 lands and it was done when Peter Otukueku, the older brother of the Plaintiff was alive as the
most senior man in the family and that they were looking for money to take the said Peter abroad
for treatment. That when the Plaintiff informed the family about the position of things, they
instructed him to sell 2 plots of land and use the proceeds of sale to take Peter abroad for treatment
but Peter couldn’t survive the ailment. PW2 further explained that the second land sold was during
the reign of Peter as the head of the family. That Peter had a Court matter and the family also
approved the sale of that land. PW2 admitted that Omote never signed any document because the
two lands which were sold, the family gave instruction for their sale.
The inconsistency in the evidence of the PW2, when compared to the evidence of the Plaintiff, the
DW2 and the Exhibit “A” before this Court, leaves more to our imagination as to the accuracy of
the evidence of the PW2. Stating it succinctly, we think it undermines his credibility.
PW2, admitted that he is vast in the Urhobo native law and that according to the Urhobo Custom
and tradition, when a land has been shared, a person to whom it was shared has a right to dispose
of that land by selling it. That also, according to the Urhobo native laws and custom he knows
that only one person cannot sell a land which belongs to two gates. PW2 emphasized that it is not
correct that the Plaintiff sold those land of his own will and decision, but that he was instructed
to do so by the family. DW2 stated that the reason why he never challenged the Plaintiff while he
was selling lands of the Otukueku family at first was because, the Plaintiff didn’t touch the land
he insisted was shared to his father, Usiokolo, that it was immediately the Plaintiff sold from his
father’s portion, he rose up to challenge him. The Plaintiff also led evidence, agreeing that the
DW2 never challenged him while he was selling the lands of Otukueku and he admitted further
that he didn’t include the names of Usiokolo gate in the deed of conveyance, to whom he sold to
before. This piece of evidence to our minds, suggests to us that there was a partitioning of the
land of Otukueku and that the Plaintiff, just might have been aware of it especially since the
Plaintiff never gave any logical explanation whatsoever why the Usiokolo gate was excluded
from the sale, save that, he got permission from the family to sell the land of Otukueku.

Notwithstanding the above submissions, is the land in dispute indeed still part of the family land
and the alienation of at least two portions of the Otukueku void or voidable sales? Or can it be said
to be correct that the lands were partitioned as alleged by the DW2?
We will be answering this question correctly after we have ascertained precisely who was in
possession of the land in dispute before the alienation to the Defendant in this case by the Usiokolo
family.

From the claim and evidence of the Plaintiff, it was stated that the Plaintiff is in possession of the
land in dispute, and it was also stated that his deceased older family members, who were heads of
the Otukueku family before their demise, were solely in possession before the headship devolved

57
on the Plaintiff. Particularly, the Plaintiff stated that when the head is in possession, every other
person in the family will stare clear from the family lands. The Plaintiff also lead evidence that,
when it was Peter Otukueku’s turn, because Peter was a civil servant, Peter gave him the authority
to act on his behalf. That he sold those 2 lands while Peter was alive and he sold as the vendor of
the properties, without the Usiokolo gate’s involvement in the sale. In the claim precisely;

The Plaintiff is the present head of Otukueku family of Eku and the person
entitled by Customary Law of inheritance, to solely manage, control and
in possession of all that piece/parcel of land, known as Otukueku family
land, lying, situate and being at Okorodebush, alongEku/Echi Road in
Eku, by the Right had side when going from Eku to Echi village,
measuring approximately 250 acres of land, and therefore entitled to
Customary Right of Occupancy over the said piece/parcel of land, in a
place within the jurisdiction of this Honourable Court.

On the other hand, the Defendant as DW1 in this case, led evidence that after he bought the land
he immediately took possession although he discovered that there were some cassava crops,
planted by the sister of Omote Otukueku, on the land and he allowed the crops to reach maturity
and after the cassava crops were harvested he got some worker to dig around the land as a
demarcation and he planted palm seedlings on the land in 2018.

Counsel for the Defendant contended in their written address, that;

... the Plaintiff could not prove that he is in possession of the land in dispute
neither did he prove that the land is in common usage by the two branches
but that the Defendant proved that the land is in the exclusive possession
of the Usiokolo gate who have been farming on same unchallenged up to
the time he bought same…
There was no evidence from the Plaintiff or his witness attempting to establish that there was an
allotment of portions of the Otukueku family lands to family members.

The Plaintiff also did not lead any evidence on how possession of the land in dispute fell on the
Usiokolo gate especially as the sister of DW2 was shown to be cultivating the land in dispute
before it was sold to the Defendant. The Plaintiff also never contradicted the above piece of
evidence. He never led evidence that the land of Otukueku was allotted to individual members of
the family and perhaps that was how the sister of DW2 started farming on the land. The Plaintiff
instead stated that he is the head and in charge to manage and do anything with the lands.

We think this piece of evidence which was unchallenged undenied and nor controverted by the
Plaintiff in this case succinctly establishes who was in possession of the land in dispute before the
Defendant was put into possession especially. We are convinced that the Usiokolo family was
indeed in possession of the land in dispute, especially when the Plaintiff has removed and
completely ruled out the possibility of an allotment of the land in dispute to family members.

If we were to consider the claim and evidence of the Plaintiff that the lands of Otukueku has not
been partitioned, being that it is a family land, we will be limited by the insufficient evidence in

58
the Plaintiff’s case to back it up. The evidence led by PW2 was laced with inconsistencies,
disparities and contrarieties, therefore this Court cannot safely rely on the credibility of the
evidence of PW2.

We find the evidence of the Plaintiff, improbable that one person being a family head will totally
be in control of all family lands inherited from three generations ago without the possibility of an
allotment of such lands for use by other family members, and that he had the right to alienate
family land after permission was given to him by those who only had a duty to partition the said
family land.

We are in agreement with the submission of counsel for the Defendant that, in IWUNO v. DIELI
(1990) 5 NWLR (PT. 149) 129 @ 135, it was held that;

Where family land is partitioned, it is sufficient if there is evidence

of the portion allotted to each party. The partition could also be
indicated by landmarks or could be inferred from common or
mutual understanding of users. In order to prove partition however,
evidence must be given of those who were present at the time the
partition took place and the extent of the property so partitioned.

DW2 led evidence, in proof of the fact that the lands have been partitioned. In his evidence, and
evidence led by the Defendant and the DW2 in this case seems more probable and we accept it as
the truth of this case.

We find that the Plaintiff could not successfully establish that the lands of Otukueku have not been
partitioned between the Agitemi and Usiokolo gates of the Otukueku family. We also find that the
Plaintiff did not convincingly prove to this court that he has brought this case, neither on behalf of
the Otukueku family, nor as the head of the Otukueku family but as the head of the Agitemi gate
of the Otukueku family. Consequently, we cannot understand how the alienation of the land in
dispute by the Usiokolo gate of the Otukueku family, headed by DW2 (Omote Usiokolo
Otukueku), in favor of the Defendant in the suit, as shown in Exhibit “B” was done unlawfully and
illegally.

The Plaintiff has failed to prove his claim before this Court on the balance of probability, we hold
finally that;

1. The Plaintiff’s claim for declaration fails in its entirety.

2. The injunctive reliefs sought alongside a declaration, are almost invariably predicated on
the success of the declarative relief because the grant of an injunction is consequential to a
declaration of the rights or status claimed. Therefore relief two also fails as the Plaintiff
was unable to satisfy this Court that he is entitled to a declaration of title.
3. The Plaintiff’s relief three for damages fails especially as the Plaintiff could not establish
his claim for trespass.
4. Consequently, all reliefs of the Plaintiff in this suit fail in their entirety and are hereby
dismissed.

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 5. Cost of N60, 000. 00 (Sixty thousand naira only) is hereby awarded against the Plaintiff in
favour of the Defendant.

______________________
IGHOTA OROWO GLORIA
(Chairman)

________________________ ______________________
MRS.THERESA UVIEGHARA DR.CHARLES EVWARAYE
(1st MEMBER) (2nd MEMBER)

LEGAL REPRESENTATION:
PLAINTIFF’S COUNSEL
IRIFERI (ESQ).

DEFENDANT’s COUNSEL,
E.J. ETAGHENE ESQ.
C.C. OLISAKWE ESQ.
O.M. EMANUWA ESQ.

60