ABO v AANYAM

ABO v AANYAM


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

ON FRIDAY, 20TH JANUARY, 2017


Appeal No: CA/MK/231/2014
CITATION:

Before Their Lordships:

JUMMAI HANNATU SANKEY, JCA

ONYEKACHI AJA OTISI, JCA

JOSEPH EYO EKANEM, JCA


BETWEEN

SUNDAY ABO

(APPELLANT)

AND

TYOFA AANYAM

(RESPONDENT)


PRONOUNCEMENTS


A. ACTION
1. Pleadings –

Effect of facts not pleaded

“Original ownership of land and first settlement thereon by a person are matters of fact which must first be pleaded before evidence can be given thereon. Facts not pleaded go to no issue and are to be discountenanced and expunged from the record. See ADENUGA v. LAGOS TOWN COUNCIL (1950) 13 WACA 125 and ENANG V. ADU (1981) 11/12 SC 25. The respondent did not plead the fact that Angwe or Onmbaagwe was the original owner of and first settler on the land in dispute and so the evidence of PW1, PW2 and pw3 thereon goes to no issue and must be and is hereby expunged from the record.”Per EKANEM, JCA read in context

2. Counter-Claim – Effect of failure of a plaintiff to file a reply to a counter-claim

Effect of failure of a plaintiff to file a reply/defence to a counter-claim

“It is clear from the pleading of both parties that the case of the parties are intertwined as regard the action of the respondent and the counter-claim of the appellant. Thus the mere fact that the respondent abandoned his further written deposition in support of the defence to the counter-claim did not automatically mean that the appellant must succeed in his counter-claim. This is especially so if the respondent succeeded in his claim. However, the failure of the claim of the respondent would not automatically mean that the appellant must succeed in his counter-claim.

This is because the appellant claimed a declaratory relief and he therefore had the onus of adducing satisfactory evidence to prove the counterclaim. A declaratory relief is not granted on admission or failure to file a defence. It can only be granted on satisfactory evidence led by the claimant. See BELLO V. EWEKA (1981) 1 SC 101.

Furthermore, in a claim for a declaration relating to land, the claimant (this includes a counter – claimant) must succeed on the strength of his own case and not on the weakness of the case of his opponent. In other words, inspite of the failure of the respondent to prove his case or adopt his additional written deposition, the appellant still had the burden of proving his counter-claim.

In DABUP V. KOLO (1993) 9 NWLR (PT.317) 24 where the Supreme Court in considering the effect of the plaintiff failing to file a defence to a counter-claim for title to land stated thus,

“There is no doubt that the facts from the pleadings of both parties are intertwined, interwoven as regards plaintiff’s action and defendant’s counter-claim. Had the plaintiff succeeded in his claim for damages the counterclaim would have failed since both parties could not at the same time be in exclusive possessive of the land in dispute. In my respectful view therefore, this case would be an exception to that general rule that where a plaintiff fails to file a defence to a counter-claim the defendant is entitled to judgment on his counter-claim. Akpata, JSC correctly, in my view, stated the law when in OGBONNA V. ATTORNEY – GENERAL IMO STATE (1992) 1 NWLR (PT.220) 647 698 he observed as follows.

“Failure of a plaintiff to file a defence to a counterclaim may not be disastrous if he succeeds in his claim, his success may render useless the counter-claim depending on the nature of the counterclaim.

However where he fails in his claims, as in this case, and had filed no defence to the counter – claim, the defendants claim in his counter – claim remains uncontroverted. If however the claim in the counter-claim is for a declaratory right, the defendant will still have to satisfy the Court that he is entitled to the declaration sought regardless of the failure of the plaintiff to file a defence.”Per EKANEM, JCA read in context

B. APPEAL
3. Grounds of Appeal – Effect of a ground of appeal from which no issue for determination is distilled

Effect of a ground of appeal from which no issue for determination is formulated

“Before treating the issues, it is perhaps pertinent to state that no issues is distilled from ground 10 of the grounds of appeal. I therefore strike out the same as having been abandoned.”Per EKANEM, JCA read in context

C. EQUITY
4. Equitable Interest –

Whether a registrable instrument that has not been registered is admissible to prove equitable interest

“As can be easily seen, Exhibit 16 was pleaded and sought to be tendered to prove equitable interest and payment of purchase price. In OKOYE V. DUMEZ NIGERIA LIMITED (1985) 6 SC 2, 12 BELLO, JSC, (as he then was) stated as follows.

“A registrable instrument which has not been registered is admissible to prove…equitable interest and to prove payment of purchase money or rent…”

See also FAKOYA V. ST PAUL’S CHURCH, SHAGAMU (1966) 1 ALL NLR 74 and ALAFIA V. GBODE VENTURES (NIGERIA) LIMITED 2016) 7 NWLR (PT.1510) 116, 141.

Thus Exhibit 16 was admissible for the purpose of proving equitable interest of the respondent and payment of purchase price even though it has not been registered.”Per EKANEM, JCA read in context

D. EVIDENCE
5. Documentary Evidence – Conditions precedent to the admission of a document into evidence

Conditions that must be satisfied before a document will be admissible in evidence

“The admissibility of a document in evidence is governed by three factors, viz;
(i) Whether or not the document is pleaded or facts by which such document is covered are expressly pleaded;
(ii) Whether or not the document is relevant to the subject matter of the inquiry; and
iii) Whether or not it is admissible in law. See OKOYE v. OBIASO (2010) 8 NWLR (PT.1195) 145,163.
The three factors are cumulative and not disjunctive. Thus where one, some or all of them are absent, the document may not be admitted in evidence.”Per EKANEM, JCA read in context

6. Admissibility of Evidence – Power of courts to act upon evidence that is legally inadmissible

Whether courts can act upon evidence that is legally inadmissible

“Before going further, it should be stated that a Court is required to act only on admissible evidence. Where a trial Court admits evidence (including a document) which the law declares to be inadmissible, it has a duty to expunge it from the record at the final stage. Where it does not do so, an appellate Court is under a duty to expunge it from the record. See MINISTER OF LANDS WESTERN NIGERIA V. AZIKWE (1969) NSCC (Vol.5) 31 and OKULADE v. ALADE (1976) 1 ALL NLR (PT 1) 67.”Per EKANEM, JCA read in context

7. Proof of Title to Land – Methods of proving ownership of land

Ways by which ownership/title to land may be proved; whether a plaintiff needs to prove all the five ways

“It is to be re-stated that the respondent at the trial Court claimed a declaration that he is the bona fide holder of title to the land in dispute. The appellant in turn counter-claimed for a declaratory relief. Each party had the burden of proving his entitlement to the relief and not to rely on the weakness (if any) of the other’s case. The exception is where there are features in the opponent’s case that support the case of the claimant. It is now trite that title to land may be established by;

(i) evidence of traditional history;

(ii) production of documents of title which are duly authenticated;

(iii) acts of ownership such as selling, leasing, renting out all or part of the land or farming on it or on a portion of it;
(iv) acts of long possession and enjoyment of the land; or

(v) proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. See IDUNDUN V. OKUMAGBA (1976) 9/10 SC 227 and OJOH V. KAMALU 2006) 136 LRCN 1130.

It needs only be added that the proof of one of the above methods is sufficient to ground the claimant’s title.”Per EKANEM, JCA read in context

8. Traditional Evidence – Elements to be proven by a party relying on evidence of traditional history in an action for declaration of title to land

What is required of a person relying on evidence of traditional history in an action for declaration of title to land

“As regards the contention by respondent’s counsel that the respondent also proved title by traditional evidence, where a party relies on traditional evidence or history to prove title to land he is obliged to plead and prove –

(i) who founded the land. (ii) how the land was founded. (iii) the names and particulars of successive owners of the land through whom he claims. See NRUAMAH v. EBUZOEME (2013) 1 SCNJ 128.”Per EKANEM, JCA read in context

9. Traditional Evidence – Parties qualified to give evidence of traditional history

Who can give evidence of traditional history

“As to there being no one from the grantor’s family who testified, for the appellant, it is my view that the evidence of DW2 (the appellant) who was shown to have been sufficiently close to the grantor to be in a position to testify on the history of the founding of the land by the grantor was sufficient. In OYEKOLA v. AJIBADE (2004) 17 NWLR (PT.902) 354, 381, ADEKEYE, JCA, as he then was, held that traditional history,

“… is given by witnesses who by their close association, interaction or special relationship with the land owing family are knowledgeable enough to give cogent and relevant traditional evidence in respect of ownership of the land.” Per EKANEM, JCA read in context

E. LAND LAW
10. Registerable Instrument –

Whether an unregistered registrable instrument can be pleaded

“The law is that every instrument affecting land must be registered and where it is not registered, it cannot be pleaded or given in evidence in any Court as evidence of title. See Sections 2, 6, 7 and 16 of the Land Registration Law, Cap. 88 Revised Laws of Benue State, 2004. The said law in Section 2 defines an “instrument” as

“… a document affecting land whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another (hereafter called the grantee) any right or title to or interest in land, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.”Per EKANEM, JCA read in context

11. Document of Title – What the courts will consider where a party produces documents of title as a means of proving title to land

Nature of documents of title; position of the law as to production of same as a means of proving title to land

“In the instant case, the respondent relied on production of document of title to prove his title viz; Exhibit 1 – statutory right of occupancy No.BNC 11859 issued on 10th December, 2008 in favour of the respondent by the Honourable Commissioner, Ministry of Land and Survey on behalf of the Executive Governor of Benue State. Where a party relies on production of document of title to ground his claim for title, the Court is required to inquire into and be satisfied as to the following:

(i) Whether the document is genuine and valid;

(ii) Whether it has been duly executed, stamped and registered;

(iii) Whether the grantor had the authority and capacity to make the grant;

(iv) Whether the grantor had in fact what he purported to grant; and

(v) Whether it has the effect claimed by the holder of the instrument. See NGENE V. IGBO (2000) 2 SCNJ 136 and DABO v. ABDULLAHI (2005) 7 NWLR (PT.923) 51 or (2005) 125 LRCN 742.

The respondent as earlier stated produced Exhibit 1 – a statutory right of occupancy issued to him on behalf of the Executive Governor of Benue State over the land. The law in this regard was stated by the Supreme Court in EZEANAH V. ATTAH (2004) 7 NWLR (PT.823) 469, 501 Per TOBI, JSC as follows;

“… a certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person had better title to the land before the issuance of the certificate of occupancy then the Court can revoke it.”

See also ADOLE V. GWAR (2008) 11 NWLR (PT.1099) 562 or (2008) SCM 18 and ATANDA V. ILIASU (2013) 6 NWLR (PT.1351) 529.”Per EKANEM, JCA read in context

12. Root of Title –

Duty of a party to prove root of title

“Where a party traces his root of title to a person or a group of persons, and the title of the person or group of persons is challenged as in this instance, he must establish how the person or group of persons derived his or its title to the land. See NGENE v. IGBO supra. And ISEAGBEKIN v. ADELEKUN (2013) 2 NWLR (PT.1337) 40.”Per EKANEM, JCA read in context

13. Acquisition of Land – Meaning of acquisition of land by settlement under customary law

What acquisition of land by settlement under customary law means

“The appellant, contrary to the holding of the trial Court, clearly stated how his grantor acquired the land, namely; by first settlement. See paragraph 6 of his written deposition at page 71 of the record of appeal.

First settlement on land means no more than first occupation or original settlement on land for whatever purpose whether or not accompanied by the exercise of dominion. See ALLI v. ALESINLOYE (2000) 6 NWLR (PT.660) 177 and AJAGUNNA V. AMUSAN (2003) 9 NWLR (PT.825) 291.”Per EKANEM, JCA read in context

14. Possession of Land – What must be done by a Plaintiff to dislodge the Defendant in possession of the land

What a plaintiff must do to oust a defendant in possession of land

“It must also be remembered that it is common ground that the appellant is in possession of the land in dispute and has built a permanent building thereon. A person who desires to dislodge another who is in possession of land must show a better title.”Per EKANEM, JCA read in context

15. Declaration of Title to Land – Effect of Effect of failure of a plaintiff to adequately discharge the burden of proof in a claim for declaration of title to land

Effect of failure of a plaintiff to prove his claim for declaration of title to land

“There is no doubt that it is the law that in an action for declaration of title to land, where a plaintiff fails to discharge the burden of proving his root of title to the land, he cannot be entitled to the declaration sought. He cannot fall back on the document of title or acts of long possession either. See Owhonda v Ekpechi (2003) LPELR-2844 (SC) at 14; Kalio v. Woluchem (1985) 1 NWLR (Pt.4) 610 AT 628.

I agree that notwithstanding the fact that the Respondent had acquired a statutory right of occupancy over the land in dispute, his failure to prove the root of title of the original owners of the land, from whom he derived his title, was fatal.”Per SANKEY, JCA read in context

16. Identity Of Land –

Effect of failure to prove identity of land

“In addition, proof of grant of the land must always be backed up by sufficient and credible evidence of the identity, extent and location of the land in dispute. The mere mention of the area or that the parties know the extent of the area of the land is not enough. Consequently, before a declaration of title to land is granted, the land to which it relates must be identified with certainty, unless the identity of the land is not in issue. Where the identity of the land has been made an issue, (as it was in this case by paragraph 7 of the Statement of defence), and it is not so proved, the claim must fail. This is especially necessary where, as in this case, the description of the land given in the claim of the Respondent and the evidence adduced in support thereof was quite vague and not specific as to the exact location and description of the land. See Owhonda V Ekpechi (2003) LPELR-2844 (SC) at 22; Temile V Awani (2001) 6 SC 164; (2001) Vol. 5 MJSC 32; Babalola V Alaworoko (2001) Vol. 5 MJSC 17; Epi V igbedion (1972) 10 SC 53.”Per SANKEY, JCA (read in context


LEAD JUDGMENT DELIVERED BY EKANEM, JCA


This appeal is against the judgment of the High Court of Benue State holden at Makurdi (the trial Court) in Suit No. MHC/97/2011 delivered on 17th April, 2013. In the judgment, the trial Court found in favour of the respondent (qua plaintiff) and entered judgment in his favour, granting all the reliefs claimed by him except special damages. The trial Court dismissed the counter claim of the appellant.

Aggrieved by the decision, the appellant who was the defendant/counter-claimant at the trial Court has appealed to this Court by way of a notice of appeal filed on 22nd May, 2013, which bears eleven grounds of appeal.

It is pertinent to set out in summary the facts of the case leading to this appeal for ease of understanding of the issues that will be considered in the determination of this appeal. The appellant and respondent lay claim to ownership of a piece of land lying and situate behind the Federal Low Cost (Housing Estate) off Makurdi Naka Road covering a total area of 900 Square Meters on TPS 191A in Makurdi. The land is particularly delineated and bounded by beacon stones No.MK4613, MK4614, MK4615 and MKE2948. The respondent was granted a statutory right of occupancy No. BNC 11859 by the Benue State Government on 10th December, 2004 over the land.

The respondent contended that the appellant trespassed on the land, destroying one of the two round huts he erected on the land, and built a house on it. He therefore sued the appellant at the trial Court claiming the following reliefs.
“A. AN ORDER OF DECLARATION that the plaintiff is the bonafide holder of title to the said plot No.11859 of land lying and situate behind Federal Low Cost, off Makurdi Naka Road covering a total area of 900 square meters on TPS 191A in Makurdi and particularly delineated and bounded by beacon Nos. MK4613, MK4614, MK4615 and MKE 2948 and covered by Right of Occupancy No.11959.

B. AN ORDER OF COURT directing the Defendant, their servants, agents, privies, successors in title, assigns or whomsoever on the said plot to vacate the said plot forthwith.

C. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants their servants, agents, privies, successor in title, assigns or whomsoever claiming from them from further acts of trespass on the said plot.

D. SPECIAL DAMAGES of Nine Hundred and Fifty Six Thousand Naira (N828,000(sic) made up as follows.

i. Legal Fees of N150,000

ii. Economic Benefits on:-

ii (a) 2 no. Cashew trees N30,000 per annum from 2003 to 2011 = N270,000.
ii (b) Banana fruits N200,000 per annum from 2003 to 2011 = N180,000.
ii (c) 1 no. Mango tree at N10,000 per annum from 2003 to 2011 = N90,000.
ii (d) Rent for 2 round huts at 12,000 per annum from 2003 to 2010 = N108,000.
ii (e) 3,000 no. burnt bricks and transportation N30,000.

E . General damages of Five Million Naira (N2,000,000) for trespass.” (See pages 6 and 7 of the record of appeal).

The appellant filed a statement of defence incorporating a counterclaim in the following terms.

“1. A declaration that in view of the prior title to improvement and possession of the disputed plot of land by the 1st defendant, all to the knowledge of the plaintiff, it was wrong, illegal and or fraudulent of the plaintiff to apply for title to and for the Benue State Ministry for Lands and Survey to issued to him Right of Occupancy number BNC 11859 over the plot of land in issue.

2. An order setting aside Right of Occupancy number BNC 11859 issued to the Plaintiff for having been improperly issued.

3. General damages of N5,000,000.00 for trespass and the inconvenience and expense occasioned the Defendants by the Plaintiff’s complaints and this Suit.”

(See pages 59 -69 of the record of appeal).

The respondent filed a reply to the statement of defence and a defence to the counter claim.

As earlier stated the decision of the trial Court granting the reliefs of the respondent except relief D and dismissing the counter-claim of the appellant is the subject of this appeal.

The parties filed their briefs of argument, viz; appellant’s brief of argument and the respondent’s brief of argument.

At the hearing of the appeal on 23rd November, 2016, G. N. Gwebe, Esq for the appellant adopted the brief of argument filed on behalf of the appellant. He urged the Court to allow the appeal, set aside the decision of the trial Court and grant the reliefs sought.

S. B. Luga, Esq for the respondent adopted the respondent’s brief of argument and urged the Court to dismiss the appeal and affirm the decision of the trial Court.

In the appellant’s brief of argument the following issues are distilled for the determination of the appeal:

“1. Whether the Court below properly admitted Exhibit 16 (Land Sales Agreement) in evidence? (Based on Ground 2).

2. Whether on the evidence adduced by the Plaintiff/Respondent, the Court below properly held that he (the Plaintiff/Respondent) had proved title to the land in issue and accordingly awarded the same to him? (Based on Ground 3).

3. Whether the Court below was right when it awarded General Damages (of N100,000.00) to the Plaintiff/Respondent when he did not claim for it. (Based on Ground 4).

4. Whether, considering the evidence adduced by the Defendant/Appellant before it, the Court below properly dismissed his counter claim? (Based on Grounds 5, 6,7, 8 and 9).

5. Whether, considering the totality of the evidence adduced before it, the Court below was right when it held that Exhibit 1 (Right of Occupancy number BNC 11859) was validly issued. (Based on Grounds 1 and 11).”

Respondent’s counsel adopted the issues formulated by appellant’s counsel. I shall therefore adopt the said issues for the determination of the appeal. I propose to deal with the issues serially except that I intend to discuss issues 2 and 5 together.

Before treating the issues, it is perhaps pertinent to state that no issues is distilled from ground 10 of the grounds of appeal. I therefore strike out the same as having been abandoned.

Now to the issues:

ISSUE 1 – Whether the Court below properly admitted Exhibit 16 (Land Sales Agreement) in evidence.

Appellant’s counsel submitted that Exhibit 16 is a land instrument within the meaning of Section 2 of the Land Registration Law Cap. 88 of the Revised Laws of Benue State 2004 and that failure to register the same rendered it incapable of being pleaded or given in evidence. It was his further submission that the fact that the respondent referred to it as a receipt did not exclude it from the requirement of registration as the name by which a document is called is immaterial. He contended that but for the wrongful admission of Exhibit 16 in evidence, the respondent’s case would have collapsed. He urged the Court to expunge the document from the record and allow the appeal.

In his response, respondent’s counsel submitted that the basis of admission is relevance and that Exhibit 16 was relevant and therefore admissible. It was his position that having found that Exhibit 16 covered the fact pleaded in the appellant’s (statement of) claim, the trial Court rightly admitted the same.

The admissibility of a document in evidence is governed by three factors, viz;

(i) Whether or not the document is pleaded or facts by which such document is covered are expressly pleaded;

(ii) Whether or not the document is relevant to the subject matter of the inquiry; and
(iii) Whether or not it is admissible in law. See OKOYE v. OBIASO (2010) 8 NWLR (PT.1195) 145,163.

The three factors are cumulative and not disjunctive. Thus where one, some or all of them are absent, the document may not be admitted in evidence. In this instance, the attack of appellant’s counsel on the admissibility of Exhibit 16 is founded on factor number (iii), viz; that it is not admissible in law.

Before going further, it should be stated that a Court is required to act only on admissible evidence. Where a trial Court admits evidence (including a document) which the law declares to be inadmissible, it has a duty to expunge it from the record at the final stage. Where it does not do so, an appellate Court is under a duty to expunge it from the record. See MINISTER OF LANDS WESTERN NIGERIA V. AZIKWE (1969) NSCC (Vol.5) 31 and OKULADE v. ALADE (1976) 1 ALL NLR (PT 1) 67.

The law is that every instrument affecting land must be registered and where it is not registered, it cannot be pleaded or given in evidence in any Court as evidence of title. See Sections 2, 6, 7 and 16 of the Land Registration Law, Cap. 88 Revised Laws of Benue State, 2004. The said law in Section 2 defines an “instrument” as

” … a document affecting land whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another (hereafter called the grantee) any right or title to or interest in land, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.”

Exhibit 16 (the focus of issue 1) is titled “Agreement for Land Ownership” and its purport is that the land the subject of the agreement

“has been given to Mr. Tyofa Aannyam” for the sum of N50,000:00 and that Mr. Tyofa Aannyam (the respondent in this appeal) “becomes the owner of the said land.” (See page 27 of the record of appeal). Certainly there is a transfer, extinguishing and conferment of right or title to or interest in the land from or by the grantors to and on the grantee (the respondent) in the document.

I therefore agree with appellant’s counsel that Exhibit 16 is a registrable instrument within the meaning of Section 2 of the Land Registration Law. I however part company with him in his position that the document was inadmissible in evidence. There is no doubt that the document is not registered but the admissibility of an unregistered registrable instrument depends on the purpose for which it is pleaded and sought to be admitted. In Paragraphs 5, 6 and 8 of the statement of claim, it is pleaded as follows:

“5. The plaintiff avers that he acquired the said plot of land from “Onmbaagwe” represented by the committee of elders of “Onmbaagwe” sometimes in April 2002 for a consideration of Fifty Thousand Naira. (N50,000) only. The receipt acknowledging the said transaction between the plaintiff and committee of elders of Onmbaagwe is hereby pleaded.

6. That Unzugbul Anbrianshio represent Tse-Adaka, Titus Abunka represented Tse-Pever while Tsekar Tar represented Tse-Igbum constituting Onmbaagwe, and the plaintiff signed the receipt evidencing payment for the said plot and this was witnessed by Mr James Vapepe and Emmanuel Iortim…

8. The plaintiff further avers that while he was processing title documents over the said plot, deposited 5,000 burnt bricks on the plot and used some to build two round thatched huts on the plot and occupied same. That when he was transferred to Guma, he gave out the two huts to a tenant who occupied and left after sometime.”

See also the evidence -in-chief of the respondent (as PW4) at pages 9 and 10 of the record of appeal.

As can be easily seen, Exhibit 16 was pleaded and sought to be tendered to prove equitable interest and payment of purchase price. In OKOYE V. DUMEZ NIGERIA LIMITED (1985) 6 SC 2, 12 BELLO, JSC, (as he then was) stated as follows.

“A registrable instrument which has not been registered is admissible to prove…equitable interest and to prove payment of purchase money or rent…”

See also FAKOYA V. ST PAUL’S CHURCH, SHAGAMU (1966) 1 ALL NLR 74 and ALAFIA V. GBODE VENTURES (NIGERIA) LIMITED (2016) 7 NWLR (PT.1510) 116, 141.

Thus Exhibit 16 was admissible for the purpose of proving equitable interest of the respondent and payment of purchase price even though it has not been registered.

I therefore enter an affirmative answer to issue 1 and resolve it against the appellant.

ISSUES 2 and 5

Whether on the evidence adduced by the Plaintiff/Respondent, the Court below properly held that he (the plaintiff/Respondent) has proved title to the land in issue and accordingly awarded the same to him.

Whether considering the totality of the evidence adduced before it, the Court below was right when it held that Exhibit 1 (Right of Occupancy Number BNC 11859) was validly issued.

It was the submission of the appellant’s counsel that since the respondent sought declaration of title the burden of proof rested on him and he could only succeed on the strength of his own case and not on the weakness (if any) of the defence. It was added that the respondent was required not only to prove title to the land in any of the five ways laid down inIDUNDUN V. OKUMAGBA (1976) 9-10 SC 277 but also to prove the title of his grantors. This, counsel contended, the respondent failed to do. It was further submitted that since the validity of Exhibit 1 (the right of occupancy) and Exhibit 16 had been challenged, the respondent ought to have proved their validity by showing his vendor’s root of title and that due process was followed in the issuance of Exhibit 1. The cases of ADOLE V. GWAR (2003) 8 SCM 18 and UCHE V. EKE (1998) 7 SCNJ 1 were cited in support of the submission.

Referring to the case of NGENE V. IGBO (2000) 2 SCNJ 136, counsel stated that the trial Court did not inquire into the questions that a Court is required to inquire into when a document of title is tendered and relied upon to prove title to land. It was his view that Exhibit 1 was invalidly issued as the appellant was in adverse possession of the land before it was processed and was issued pendente lite, Counsel stressed the point that Exhibit 16 does not specify or identify the actual plot of land transferred therein to the respondent. Again, he went on, the respondent failed to establish how his vendors or grantors derived title to the land in dispute. In his view, the evidence of PW1, PW2 and PW3 that the Onmbaagwe family were the original and first settlers on the land in the area without more was insufficient.

Arguing issue 5, appellant’s counsel repeated the arguments summarized above and submitted that the trial Court ought to have held that Exhibit 1 was not validly issued.

Respondent’s counsel in response contended that the respondent proved his title to the land in dispute by production of document of title and by traditional evidence. He urged the Court not to interfere with the finding of the trial Court in this regard as there was no reason to do so. It was his position that the argument that Exhibit 16 does not identify the plot of land that was transferred to the respondent was a misconception as the identity of the land in dispute was not in issue and both parties know the land in dispute; therefore, he asserted, the trial Court had no business to subject Exhibit 16 to scrutiny based on the identity of the land in dispute.

On the point raised by the appellant’s counsel that the doctrine of lis pendens operated against Exhibit 1, it was his submission that it was inapplicable as there was no case pending in Court over the land in dispute as at the time of its issuance.

In respect of issue 5, counsel adopted his arguments in respect of issues 1-4.

It is to be re-stated that the respondent at the trial Court claimed a declaration that he is the bona fide holder of title to the land in dispute. The appellant in turn counter-claimed for a declaratory relief. Each party had the burden of proving his entitlement to the relief and not to rely on the weakness (if any) of the other’s case. The exception is where there are features in the opponent’s case that support the case of the claimant. It is now trite that title to land may be established by;

(i) evidence of traditional history;

(ii) production of documents of title which are duly authenticated;
(iii) acts of ownership such as selling, leasing, renting out all or part of the land or farming on it or on a portion of it;

(iv) acts of long possession and enjoyment of the land; or
(v) proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. See IDUNDUN V. OKUMAGBA (1976) 9/10 SC 227 and OJOH V. KAMALU (2006) 136 LRCN 1130.

It needs only be added that the proof of one of the above methods is sufficient to ground the claimant’s title.

In the instant case, the respondent relied on production of document of title to prove his title viz; Exhibit 1 – statutory right of occupancy No.BNC 11859 issued on 10th December, 2008 in favour of the respondent by the Honourable Commissioner, Ministry of Land and Survey on behalf of the Executive Governor of Benue State. Where a party relies on production of document of title to ground his claim for title, the Court is required to inquire into and be satisfied as to the following:

(i) Whether the document is genuine and valid;

(ii) Whether it has been duly executed, stamped and registered;
(iii) Whether the grantor had the authority and capacity to make the grant;
(iv) Whether the grantor had in fact what he purported to grant; and
(v) Whether it has the effect claimed by the holder of the instrument. See NGENE V. IGBO (2000) 2 SCNJ 136 and DABO v. ABDULLAHI (2005) 7 NWLR (PT.923) 151 or (2005) 125 LRCN 742.

The respondent as earlier stated produced Exhibit 1 – a statutory right of occupancy issued to him on behalf of the Executive Governor of Benue State over the land. The law in this regard was stated by the Supreme Court in
EZEANAH V. ATTAH (2004) 7 NWLR (PT.823) 469, 501 Per TOBI, JSC as follows;
“… a certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person had better title to the land before the issuance of the certificate of occupancy then the Court can revoke it.”

See also ADOLE V. GWAR (2008) 11 NWLR (PT.1099) 562 or (2008) SCM 18 and ATANDA V. ILIASU (2013) 6 NWLR (PT.1351) 529.

The respondent’s case was that he bought the land from “Onmbaagwe” and was issued a receipt for the transaction by the committee of elders of Onmbaagwe – Exhibit 16. The appellant joined issues with the respondent on this point and pleaded that the land in dispute was originally owned by one Cyprian Magum who was the founder and first settler thereon, and who made a gift of the land to him in 1988.

The appellant also challenged the existence of the receipt relied on by the respondent or its relationship to the land in dispute.

Where a party traces his root of title to a person or a group of persons, and the title of the person or group of persons is challenged as in this instance, he must establish how the person or group of persons derived his or its title to the land. See NGENE v. IGBO supra. And ISEAGBEKIN v. ADELEKUN (2013) 2 NWLR (PT.1337) 40. For the respondent, the PW1, PW2 and PW3 testified that they were descendants of Angwe also known as Onmbaagwe who was the original owner of the land and first settler on the area now known as Modern Market Ward down to Adaka Village along Makurdi – Naka Road, Makurdi. (See the depositions at pages 14, 18 and 22 of the record of appeal, paragraph 2 thereof).

Original ownership of land and first settlement thereon by a person are matters of fact which must first be pleaded before evidence can be given thereon. Facts not pleaded go to no issue and are to be discountenanced and expunged from the record. See ADENUGA v. LAGOS TOWN COUNCIL (1950) 13 WACA 125 and ENANG V. ADU (1981) 11/12 SC 25. The respondent did not plead the fact that Angwe or Onmbaagwe was the original owner of and first settler on the land in dispute and so the evidence of PW1, PW2 and pw3 thereon goes to no issue and must be and is hereby expunged from the record. The result is that that leaves the respondent unable to establish the title of his vendors.

Furthermore and as earlier stated, the appellant raised an issue as to the link between Exhibit 16 (the purchase receipt) and the land in dispute. Exhibit 16 describes the land the subject of the transaction reflected thereon as;
“The land situate behind Federal Low Cost measuring 100h by 1 0h…” (See page 27 of the record of appeal).

The above description is vague and as argued by appellant’s counsel, does not refer to any specific plot or parcel of land. The PW1, PW2 and PW4 in their evidence – in-chief described the land they sold to the respondent;

“… as a plot of land behind Federal Low Cost which plot measured approximately 100ft x 100ft …”

Again this description is vague and indefinite. I agree with appellant’s counsel that the link between Exhibit 16 and the land in dispute was not established by the respondent.

It was contended by respondent’s counsel that the identity of the land in dispute was not in issue and therefore the Court had no business to subject Exhibit 16 to scrutiny based on the identity of the land. With all due respect, I think counsel missed the point. Indeed, the identity of the land in dispute was not an issue at the trial Court. What was in issue was the parcel or plot of land the subject of Exhibit 16. This, was made an issue in paragraph 7 of the statement of defence. The respondent failed to prove the link between Exhibit 16 and the land in dispute, the subject of Exhibit 1.

As regards the contention by respondent’s counsel that the respondent also proved title by traditional evidence, where a party relies on traditional evidence or history to prove title to land he is obliged to plead and prove – (i) who founded the land.
(ii) how the land was founded. (iii) the names and particulars of successive owners of the land through whom he claims. See NRUAMAH v. EBUZOEME (2013) 1 SCNJ 128. This was not the case pleaded by the respondent and so I discountenance the contention.

The appellant, who made a counter-claim, on his part, traced his title to one Cyprian Magum whom he said was the founder and first settler on a vast parcel of the land including the land in dispute. It was his case that the said Cyprian Magum made a free gift of the land to him in the presence of witnesses. He led evidence in this respect through DW1, DW2, DW3 and DW4. The trial Court held at page 201 of the record of appeal that the appellant did not state how Cyprian Magum acquired the land, id est, whether by first settlement, deforestation or conquest and that no one from Magum’s family testified for the appellant.

The appellant, contrary to the holding of the trial Court, clearly stated how his grantor acquired the land, namely; by first settlement. See paragraph 6 of his written deposition at page 71 of the record of appeal.

First settlement on land means no more than first occupation or original settlement on land for whatever purpose whether or not accompanied by the exercise of dominion. See ALLI v. ALESINLOYE (2000) 6 NWLR (PT.660) 177 and AJAGUNNA V. AMUSAN (2003) 9 NWLR (PT.825) 291.

As to there being no one from the grantor’s family who testified, for the appellant, it is my view that the evidence of DW2 (the appellant) who was shown to have been sufficiently close to the grantor to be in a position to testify on the history of the founding of the land by the grantor was sufficient. In OYEKOLA v. AJIBADE (2004) 17 NWLR (PT.902) 354, 381, ADEKEYE, JCA, as he then was, held that traditional history,
” … is given by witnesses who by their close association, interaction or special relationship with the land owing family are knowledgeable enough to give cogent and relevant traditional evidence in respect of ownership of the land.”

The evidence of DW2 as to the ownership of the land by Cyprian Magum and the gift of the same by him to the appellant was supported by the evidence of DW1, the Tor Kpande (Tax collector) covering the area where the land in dispute is situate at all relevant times, and the other defence witnesses.

It must also be remembered that it is common ground that the appellant is in possession of the land in dispute and has built a permanent building thereon. A person who desires to dislodge another who is in possession of land must show a better title.

The respondent had the onus of proving that Exhibit 1 was validly issued and that he had a better title than the appellant. He failed to do so.

I therefore enter a negative answer to Issues 2 and 5 and resolve them in favour of the appellant.

Issue 3 – whether the Court below was right when it awarded general damages (of N100,000,00) to the plaintiff/respondent when he did not claim for it.

Appellant’s counsel’s argument under this issue is that the respondent claimed general damages for trespass but the trial Court awarded N100,000.00 general damages simpliciter which he did not claim.

It was his further argument that, in any event, the respondent was not entitled to damages for trespass having admitted that the appellant was in possession of the land.

For the respondent it was argued that a community reading of paragraphs C and D of the orders of the trial Court clearly reveals that award of general damage was for trespass as claimed by the respondent, the fact of trial Court not specifically stating that the award was “damages for trespass notwithstanding. ”

I agree with respondent’s counsel. The trial Court in its order (c) issued an order of perpetual injunction restraining the appellant, servant etc. from further acts of trespass on the land and thereafter in order (d) awarded general damages of N100,000.00 against the appellant. It is easy to see that the award was in respect of the respondent’s claim for general damages for trespass.

However in view of my conclusion in respect of issues 2 and 5, and the fact that the respondent did not prove possession of the land or immediate right of possession, the award cannot stand.

My answer to issue 3 is therefore that the trial Court was not right in making the award.

ISSUE 4 – Whether considering the evidence adduced by the defendant/appellant the Court below properly dismissed his counter-claim.

It was contended by appellant’s counsel that having not adopted his additional written deposition which was filed in respect of the defence to the counter-claim, the respondent was deemed to have abandoned the facts pleaded in the said defence to the counter-claim. He was of the view that the evidence in support of the counter claim was therefore unchallenged and the trial Court ought to have accepted and act on it.

Counsel summarized the evidence of the appellant which he said was unchallenged and submitted that the decision of the trial Court in dismissing the appellant’s counter-claim without first evaluating the evidence adduced by him was perverse.

In response, respondent’s counsel submitted that a party must succeed on the strength of his own case and not the weakness of the opponent’s case except where it supports his case. It was further submitted that even if the non-adoption of the additional statement on oath of the respondent was of any moment, the appellant did not prove his counter-claim.

In response to the statement of defence and counter-claim of the appellant, the respondent filed a reply to the statement of defence and reply (sic; defence) to the counter claim. An additional statement on oath was filed along with the said process. Though it was sworn to by the Respondent but he did not refer to and adopt it in his evidence. He therefore abandoned it. I do not however agree with counsel for the appellant that the result is that the evidence of the appellant in proof of his counter-claim was unchallenged and should (automatically) have been accepted and acted upon by the trial Court.

It is clear from the pleading of both parties that the case of the parties are intertwined as regard the action of the respondent and the counter-claim of the appellant. Thus the mere fact that the respondent abandoned his further written deposition in support of the defence to the counter-claim did not automatically mean that the appellant must succeed in his counter-claim. This is especially so if the respondent succeeded in his claim. However, the failure of the claim of the respondent would not automatically mean that the appellant must succeed in his counter-claim.

This is because the appellant claimed a declaratory relief and he therefore had the onus of adducing satisfactory evidence to prove the counterclaim. A declaratory relief is not granted on admission or failure to file a defence. It can only be granted on satisfactory evidence led by the claimant. See BELLO V. EWEKA (1981) 1 SC 101.

Furthermore, in a claim for a declaration relating to land, the claimant (this includes a counter – claimant) must succeed on the strength of his own case and not on the weakness of the case of his opponent. In other words, inspite of the failure of the respondent to prove his case or adopt his additional written deposition, the appellant still had the burden of proving his counter-claim.

In DABUP V. KOLO (1993) 9 NWLR (PT.317) 24 where the Supreme Court in considering the effect of the plaintiff failing to file a defence to a counter-claim for title to land stated thus,

“There is no doubt that the facts from the pleadings of both parties are intertwined, interwoven as regards plaintiff’s action and defendant’s counter-claim. Had the plaintiff succeeded in his claim for damages the counterclaim would have failed since both parties could not at the same time be in exclusive possessive of the land in dispute. In my respectful view therefore, this case would be an exception to that general rule that where a plaintiff fails to file a defence to a counter-claim the defendant is entitled to judgment on his counter-claim. Akpata, JSC correctly, in my view, stated the law when in OGBONNA V. ATTORNEY – GENERAL IMO STATE (1992) 1 NWLR (PT.220) 647 698 he observed as follows.

“Failure of a plaintiff to file a defence to a counterclaim may not be disastrous if he succeeds in his claim, his success may render useless the counter-claim depending on the nature of the counterclaim.

However where he fails in his claims, as in this case, and had filed no defence to the counter – claim, the defendants claim in his counter – claim remains uncontroverted. If however the claim in the counter-claim is for a declaratory right, the defendant will still have to satisfy the Court that he is entitled to the declaration sought regardless of the failure of the plaintiff to file a defence.”

I have already held in answer to issues 2 and 5 that the respondent failed to prove a better title than that of the appellant who showed that he had a better title than the respondent to the land in dispute. I therefore enter an affirmative answer to issue 4 and resolve it in favour of the appellant.

On the whole, I reach the conclusion that the appeal has merit and it is therefore allowed. I set aside the judgment of the trial Court and in its place, I dismiss the claim of the respondent and enter judgment in favour of the appellant in terms of the counter-claim but with the sum of N50,000.00 assessed as general damages for trespass against the respondent.

The parties shall bear their costs.

SANKEY, JCA

I have had a preview of the Judgment of my learned brother, Ekanem, JCA, in draft and I agree with him that the Appeal is meritorious and ought to be allowed.

There is no doubt that it is the law that in an action for declaration of title to land, where a plaintiff fails to discharge the burden of proving his root of title to the land, he cannot be entitled to the declaration sought. He cannot fall back on the document of title or acts of long possession either. See Owhonda v Ekpechi (2003) LPELR-2844 (SC) at 14; Kalio v. Woluchem (1985) 1 NWLR (Pt.4) 610 AT 628.

I agree that notwithstanding the fact that the Respondent had acquired a statutory right of occupancy over the land in dispute, his failure to prove the root of title of the original owners of the land, from whom he derived his title, was fatal. Thus, even though PW1, PW2 and PW3 testified that Angwe (a.k.a. Onmbaagwe) was the original owner of and first settler on the land, since there were no facts pleaded upon which to hinge this piece of evidence in the pleadings of the Plaintiff (Respondent), the evidence goes to no issue. Therefore, the lower Court erred when it acted on such evidence when it should have been rightly expunged from the Record, or at the very least, discountenanced.

In addition, proof of grant of the land must always be backed up by sufficient and credible evidence of the identity, extent and location of the land in dispute. The mere mention of the area or that the parties know the extent of the area of the land is not enough. Consequently, before a declaration of title to land is granted, the land to which it relates must be identified with certainty, unless the identity of the land is not in issue. Where the identity of the land has been made an issue, (as it was in this case by paragraph 7 of the Statement of defence), and it is not so proved, the claim must fail. This is especially necessary where, as in this case, the description of the land given in the claim of the Respondent and the evidence adduced in support thereof was quite vague and not specific as to the exact location and description of the land. See Owhonda V Ekpechi (2003) LPELR-2844 (SC) at 22; Temile V Awani (2001) 6 SC 164; (2001) Vol. 5 MJSC 32; Babalola V Alaworoko (2001) Vol. 5 MJSC 17; Epi V Aigbedion (1972) 10 SC 53.

It is thus for these and for the more detailed reasons given in the lead Judgment that I too allow the Appeal. I endorse the order as to costs given therein.

OTISI, JCA

I was privileged to read, in draft form, a copy of the Judgment just delivered by my learned Brother, Joseph E. Ekanem, JCA, allowing the appeal.

The issues raised in this appeal have been comprehensively addressed. I agree with, and hereby adopt as mine, the resolution of the said issues raised herein. I also allow this appeal and hereby abide by the orders made in the lead Judgment.