AYHOK & ANOR v. PLATEAU PUBLISHING CORPORATION & ORS (2020)

AYHOK & ANOR v. PLATEAU PUBLISHING CORPORATION & ORS

(2020)LCN/14143(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, April 24, 2020

CA/J/45/2019

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

DAVID AYHOK INSAP AYHOK (Suing For Themselves And On Behalf Of The Insap Family Of Agingi In Bassa LGA Of Plateau State) APPELANT(S)

And

PLATEAU PUBLISHING CORPORATION COMMISSIONER OF POLICE, PLATEAU STATE ATTORNEY GENERAL, PLATEAU STATE RESPONDENT(S)

RATIO

WHETHER OR NOT A PARTY CLAIMING OWNERSHIP OF THE LAND MUST ESTABLISH PROOF OF OWNERSHIP.

The question that arises is – whether the Appellants made out a credible case to sustain this claim? It is trite law that in an action for declaration of ownership of land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ugoji Vs Onukogu (2005) 16 NWLR (Pt. 950) 97, Ashiru Vs Olukoya (2006) 11 NWLR (Pt. 990) 1, Njoku Vs Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 NWLR (Pt. 1011) 239, Usung Vs Nyong (2010) 2 NWLR (Pt. 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt. 1206) 559. Where a claimant’s claim to a piece of land in dispute is predicated on ownership, the onus is on him to prove and establish his ownership – Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348. PER ABIRU, J.C.A.

TRANSFER OF INTEREST IN LAND UPON OUTRIGHT SALE OF LAND

This was also the tenure of the case of the Appellants in the evidence led by the two claimant witnesses. It is an elementary principle of land litigation that where a party has made an outright sale of land to a third party, his proprietary interest in the land becomes completely vacated or extinguished. Such a party cannot pretend to have subsisting interest of whatever nature worthy of protection by the mere fact that he was the vendor of the land to a third party; he cannot make any claim to the land – Ige Vs Farinde (1994) 7 NWLR (Pt. 354) 42, Amuda Vs Ajobo (1995) 7 NWLR (Pt 406)170, Okoli Vs Ojiakor (1997) 1 NWLR (Pt. 479) 48, Yusuf Vs Kode (2002) 6 NWLR (Pt. 762) 231, Jinadu Vs Esurombi-Aro (2009) 9 NWLR (Pt. 1145) 55, Oni VsOlokun (1995) 1 NWLR (Pt 370) 189. This is simple common sense which demands that a person cannot eat his cake and have it – Oduola Vs Coker (1981) 5 SC 197, Sanyaolu Vs Coker (1983) 3 SC 125, Olawore Vs Olanrewaju (1998) 1 NWLR (Pt 534) 436, Ajao Vs Obele (2005) 5 NWLR (Pt 918) 400.
Upon the sale or alienation of landed property, all the rights and interests in the said property revert to or become vested in the new owner – Farajoye Vs Hassan (2006) 16 NWLR (Pt. 1006) 463. The Courts have held that once a claimant has disposed of a property in respect of which he seeks an injunction, there is no justification for granting any order of injunction in his favour – Nwosu Vs Otunola (1974) 4 SC 21, Ajuwa Vs Odili (1985) 2 NWLR (Pt. 9) 710, Udo Vs Obot (1989) 1 NWLR (Pt. 95) 59, Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt 1198) 179. This is the principle upon which the doctrine of nemo dat quod non habet, i.e. no one may convey what no longer belongs to him, is predicated. Where a piece or parcel of land has been sold to party, there cannot be a later sale of the piece or parcel of land to another party because as at the time of the later sale, the vendor will have nothing in law to sell – Anyaduba Vs Nigeria Renowned Trading Co (1992) 5 NWLR (Pt. 243) 535, Tewogbade Vs Obadina (1994) 4 NWLR (Pt. 388) 326, Macaulay Vs Omiyale (1997) 4 NWLR (Pt. 497) 94, Odusoga Vs Ricketts (1997) 7 NWLR (Pt. 511) 1. PER ABIRU, J.C.A.

PROOF OF OWNERSHIP OF LAND “CERTIFICATE OF OCCUPANCY”

Counsel to the Appellants also sought to make an issue of the name on the Certificate of Occupancy relied upon by the first Respondent and he submitted that the name on the document, Plateau Publishing Company Limited, was different from the name of the first Respondent, Plateau Publishing Corporation. The Appellants did not raise this issue on the pleadings before the lower Court. It is settled law that a party who predicates his case on some particular facts must plead those particular facts – Olusanya Vs Osinleye (2013) 12 NWLR (Pt. 1367) 148, Okusanmi Vs Attorney General of Lagos State (2015) 4 NWLR (Pt. 1449) 220. And an Appellate Court will not allow a party to canvass on appeal an issue that was not raised by the party on his pleadings before the lower Court – First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt. 1021) 230, Akpan Vs Udoh (2008) 3 NWLR (Pt. 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt. 1329) 286. Similarly, the Appellants did not argue or canvass the issue before the trial Court and the law is that they cannot thus do so in this appeal – Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) 96 at 122, Aiyeola Vs Pedro (2014) 13 NWLR (Pt. 1424) 409. PER ABIRU, J.C.A.

WHETHER OR NOT A CERTIFICATE OF OCCUPANCY PROPERLY ISSUED RAISES THE PRESUMPTION THAT THE HOLDER IS THE OWNER IN EXCLUSIVE POSSESSION OF THE LAND

It is settled law that 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 by the other party proving he had a better title to the land before the issuance of the certificate of occupancy – Ilona Vs Idakwo (2003) 11 NWLR (Pt830) 53, Ezeanah Vs Attah (2004) 7 NWLR (Pt. 873) 468, Aminu Vs Ogunyebi (2004) 10 NWLR (Pt 882) 457, Din Vs Attorney General, Federation (2004) 12 NWLR (Pt 888) 459, CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (Pt 992) 530, Madu Vs Madu (2008) 6 NWLR (Pt 1083) 296, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597. The Appellants did not make out a cogent and credible case to rebut the presumption raised in favour of the Respondents by their Certificate of Occupancy. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Plateau State delivered in Suit No PLD/J385/2016 by Honorable Justice D. D. Longji on the 17th of December, 2018. The Appellants were the claimants in the lower Court and their claims against the Respondents were for:
i. A declaration that the Appellants were at the time material to this suit, customary owners of the land in dispute which is situate in the West of Agingi Market, Kisaloi Village in Buhit District in Bassa LGA of Plateau State.
ii. A declaration that the first Respondent never bought or any howsoever acquired interest in the land in dispute.
iii. An order of perpetual injunction restraining the second Respondent from harassing, intimidating, arresting or detaining the Appellants or any person on the land in dispute by reason of the complaint of the first Respondent.

The case of the Appellants on the pleadings was that the land in dispute was first cleared and cultivated by their progenitor called Insap and that it was thereafter inherited by his son called Ayhok and that on the death of Ayhok,

his son called Achaka took over the land and continued to cultivate thereon. It was their case that on the death of Achaka, his son called Ayhok Achaka inherited the land and farmed thereon and he subsequently gifted a part of the land to one Dominic Ayiki Akpana and built a house on another part of the land and wherein he lived with the Appellants until his death in 1990. It was their case that the Appellants thereafter relocated their residence from the land, but that they continued to farm thereon until the 2000 when, due to the fact that the area was fast becoming residential, they partitioned the land into plots and distributed it amongst their uncles and cousins.

It was the case of the Appellants that the beneficiaries of the land sold their respective plots of land and that by the end of 2011, all the plots had been sold and similarly all the families that shared boundary with the land in dispute, the Akubaka Isandu Family in the North, the Antah Family in the South, the Agigi Family in the West and the Ajijah Family in the East, had similarly partitioned and sold their respective portions of land. It was their case that sometime in 2010, the first

Respondent disrupted activities on a part of the land claiming that it had purchased same and that they resisted the claim of the first Respondent and commenced an action in Court to challenge the first Respondent’s claim, but that the action was subsequently struck out by the Court. It was their case that sometime in June 2016, the first Appellant was invited by the officers of the second Respondent to their office to respond to the complaint lodged by the first Respondent in connection with the land in dispute and that the Appellants, believing that the invitation will lead to their arrest and torture, have commenced this action to challenge the alleged claim of the first Respondent that it had purchased or acquired ownership of the land in dispute.

The Respondents filed a joint statement of defence and it was their case that the land in dispute is the portion of land covered by a Certificate of Occupancy No BP 4039 and measuring 4.02 hectares situate in Agingi in Bassa LGA and that the land was allocated to the first Respondent by the Ministry of Land and Survey Plateau State on the 7th of March, 1983 after the payment of due compensation to

seventeen individuals, including one Achaka Ayhok. The Respondents pleaded the several steps taken by the first Respondent to obtain the grant of the Certificate of Occupancy for the land dating from 1975 when an application for a statutory right of occupancy was made by the then Benue Plateau Publishing Corporation, Jos to the meeting held with the Secretary of Bassa LGA on payment of compensation to the local farmers. It was their case that in course of carrying out an inspection of the land in September, 2009, the officials of the first Respondent met the Appellants who laid claim to the land and that the Appellants subsequently commenced an action to claim ownership of the land in Suit No PLD/J2/2010 and which suit was dismissed upon a preliminary objection filed by the first Respondent.

It was the case of the Respondents that the Appellants and their cohorts trespassed into the land in dispute and removed the first Respondent’s survey beacons and whereupon the first Respondent lodged complaints with the Commissioner for Lands and Survey in October 2009 and reported a case of criminal trespass to the second Respondent on the 15th of March, 2010.

It was their case that by reason of their complaints, the Ministry of Lands and Survey issued Stop Notices to a Mr. George Adah and a Colonel N. F. Umaru who were found on the land and that the first Respondent also wrote to the Jos Metropolitan Development Board requesting their assistance to remove the illegal structures erected on the land. The first Respondent counterclaimed for (i) a declaration that it is the statutory owner of the land in dispute covered by Certificate of Occupancy No BP 4039; (ii) a declaration that the previous customary owners of the land had been paid compensation; (iii) damages for trespass; and (iv) an order directing the second Respondent to continue to investigate and to prosecute all the persons indicted in the allegation of criminal trespass and conspiracy to commit same.

The matter proceeded to trial and in the course of which the Appellants called three witnesses in proof of their case and the Respondents called two witnesses in proof of their defence and counterclaim. At the conclusion of trial and after the rendering of final written addresses by Counsel to the parties, the lower Court entered judgment dismissing the

claims of the Appellants and granting the counterclaim of the Respondents. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 20th of December, 2018 and containing five grounds of appeal against it. In prosecuting the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 12th of February, 2019. In response, Counsel to the Respondents filed a brief of arguments dated the 28th of June, 2019 on the 6th of July, 2019 and the brief of arguments was deemed properly filed by this Court on the 18th of September, 2019. Counsel to the Appellants filed a Reply brief of arguments dated the 30th of September, 2019. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their oral submissions in the appeal.

Counsel to the Appellants distilled two issues for determination in the appeal and these were:
i. Whether his Lordship was right to hold that having failed to prove customary title by traditional evidence, the Appellants could not rely on acts of possession and ownership.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether His Lordship was right when he held that the Respondents proved their counterclaim by documentary evidence.In arguing the first issue for determination, Counsel to the Appellants distinguished the facts of the case of Ogunleye Vs Jaiyeoba (2011) 9 NWLR (Pt 1252) 339 relied upon by the lower Court in the judgment from the facts of the present case and stated that the Appellants pleaded their customary title to the land in dispute and led evidence in proof thereof and that the Respondents pleaded and led evidence in support of the case of the Appellants when they admitted that the father of the Appellants was one of the seventeen farmers who were paid compensation for the land. Counsel stated that it is correct that in an action for declaration of title to land a claimant must succeed on the strength of his case, but that where the case of a defendant supports the case of a claimant, as in the instant case, the claimant is entitled to take benefit of the evidence of the defendant and that it was thus wrong for the lower Court to have found that the Appellants did not establish their case of customary ownership of the land in dispute and he

referred to the cases of Woluchem Vs Gudi (1981) 5 SC 291 and Otukpo Vs John (2012) 7 NWLR (Pt 1299) 357.

Counsel stated further that the essence and meaning of the finding of the lower Court that the evidence of the Appellants that they inherited the land from the late father was not enough to sustain their claim for declaration of title to land was that the evidence of traditional history led by the Appellants was inconclusive and he referred to the case of Opoto Vs Anaun (2016) 16 NWLR (Pt 1539) 437 on what amounts to conclusive evidence of traditional history. Counsel stated that having found that the evidence of traditional history led by the Appellants was inconclusive, the option opened to the lower Court was to have considered the several acts of ownership and possession carried out the land in dispute as pleaded and led in evidence by the Appellants such as the gifting of part of the land and the partitioning and the selling of plots on the land in dispute carried out without hindrance and he referred to the cases of Karimu Vs Fajebe (1968) SCNLR 33 and Morenikeji Vs Adegbosin (2003) 8 NWLR (Pt 823) 612. Counsel stated that the lower Court ought

to have credited the acts of ownership and possession as part of the Appellants’ proof of ownership of the land in dispute and he urged the Court to resolve the first issue for determination in favour of the Appellants.

In arguing the second issue for determination, Counsel reproduced the first and second claims of the Respondents on the counterclaim and the finding of the lower Court that the Respondents proved the counterclaim on a balance of probability and he interrogated the evidence of the second defence witness on the payment of compensation for the land to seventeen listed farmers, including their father, and stated that the evidence of the witness was contradictory because in one breadth he referred to the document contained on page 73 of the file tendered as Exhibit D1 as evidence of payment of compensation to the seventeen farmers while in another breadth he stated the it was not a payment voucher, but only a list of the persons entitled to compensation. Counsel defined what amounts to a contradiction in the evidence of a witness and stated that the contradiction in the evidence of the second defence witness on the payment of compensation

was very material in the circumstances of this case and that the evidence of the witness on the issue ought not to have been accepted by the lower Court and he referred to the cases of Jimmy Vs State (2013) 18 NWLR (Pt. 1386) 229 and Okafor Vs Ilukwe (2013) 10 NWLR (Pt. 1363) 465.

Counsel stated that the first defence witness admitted that the document on page 73 of Exhibit D1 was not evidence of payment of compensation and that the evidence of the two defence witnesses on the point amounted to an admission against interest and it complemented the case of the Appellants and relieved the Appellants of the burden of proving their assertion that their land was not acquired and he referred to the cases of Okeshola Vs Military Governor of Oyo State (2000) FWLR (Pt 19) 492, NBA Vs Fobur (2006) All FWLR (Pt 333) 1739 and Rilwan & Partners Vs Skye Bank Plc (2015) 1 NWLR (Pt 1441) 437. Counsel stated that the burden of proving the payment of compensation, the subject matter of the counterclaim, did not shift from the Respondents and that it was despite the contradictions and the admission against interest in the evidence of the defence witnesses that the lower

Court found that Exhibit D1 was proof of purchase of the land from the land owners and that as such the finding was perverse and he referred to the case of FBN Plc Vs Ozokwere (2014) 3 NWLR (Pt. 1395) 439.

Counsel stated that the Respondent made so much fuss about Certificate of Occupancy No BP 4039 and that though the document was contained in the file tendered as Exhibit D1, the document was not shown to the Court during the trial and that neither of the two defence witnesses referred to the document in the course of their evidence. Counsel stated further that the Certificate of Occupancy was issued to Plateau Publishing Company Ltd and not to the Plateau Publishing Corporation which is the name of the first Respondent and there was nothing in the pleadings showing that the two companies are one and the same. Counsel stated that even if the Certificate of Occupancy referred to the first Respondent, it only raised a rebuttable presumption, and not a conclusive proof, of ownership of the land in dispute. Counsel stated that on the whole, the lower Court was in error when it found that the Respondents proved the counterclaim against the Appellants and he

urged the Court to resolve the second issue for determination in favour of the Appellants.

Counsel concluded his arguments by urging the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court and to grant the claims of the Appellants and dismiss the counterclaim of the Respondents.

On his part, Counsel to the Respondents also distilled two issues for determination in the appeal and these were:
i. Whether the evidence adduced by the Appellants at the lower Court established a better title than that of the Respondents.
ii. Whether the counterclaim was proved and the Respondents entitled to judgment.

In arguing the first issue for determination, Counsel to the Respondents stated that the claim of the Appellants of ownership of the land in dispute by traditional evidence was defeated by insufficient evidence, as found by the lower Court, and that despite pleading the names of the families that owned the portions of land that shared boundary with the land in dispute, the Appellants did not call a member of any of the families to testify on their behalf. Counsel stated that the Appellants were aware

that the first Respondent possessed a Certificate of Occupancy over the land in dispute issued on the 7th of March, 1983, and which fact was communicated to them prior to and during the pendency of the action, and the Appellants did not seek to have the Certificate of Occupancy nullified and the law is that, even if it was irregularly issued, the certificate remained valid until it is declared invalid by a Court of law and he referred to the case of Mani Vs Shanono (2007) All FWLR (Pt. 345) 303.

Counsel stated that the contention of the Counsel to the Appellants seeking to distinguish between the Plateau Publishing Company Limited, the name on the Certificate of Occupancy, and Plateau Publishing Corporation, the present name of the first Respondent, was not raised before the lower Court and was not pronounced upon in the judgment and it cannot be raised in this appeal as a party must be consistent with the case he presents and he referred to the case ofLadoja Vs Ajimobi (2016) NWLR (Pt 1519) 87. Counsel stated that assuming that the issue can be raised, Section 122 (2) of the Evidence Act gives this Court the power to take judicial notice of the statutes

that set up the first Respondent and which has been severally amended and in the course of which its name has changed at different times from Benue Plateau Printing and Publishing Corporation in 1972 till the present name.

Counsel noted that there are five recognized ways of establishing title to land and that the Appellants relied on evidence of traditional history and he also noted the requirements of the law that must be fulfilled by a party that relies on traditional history and stated that the case made out by the Appellants failed woefully to satisfy the requirements. Counsel stated that the Respondents, on the other hand, relied on documents of title and they tendered Exhibit D1 which detailed the several steps taken by the first Respondent, including the involvement of the traditional ruler of the Chiefdom wherein the land is located and the payment of compensation to several farmers, including the father of the Appellants, before the eventually issuance of the Certificate of Occupancy. Counsel stated that the evidence of the Respondents showed that the land in dispute did not belong to one person, as claimed by the Appellants, but to several

persons numbering seventeen, and that as such the contention of the Counsel to the Appellants that the case of the Respondents supported their case is a fallacy.

Counsel urged the Court not to interfere with the findings of facts made by the lower Court who had the opportunity of seeing and hearing the witnesses and to reject the contentions of Counsel to the Appellants and the case law authorities cited by him, particularly the attempt to rely on alleged acts of ownership and possession as they were carried out after the Appellants trespassed into the land in dispute and in defiance of the attempts by the Police to investigate the trespass. Counsel urged the Court to resolve the first issue for determination in favour of the Respondents.

On the second issue for determination, Counsel urged this Court to discountenance the submission of Counsel to the Appellant on an alleged contradiction in the evidence of the second defence witness on the issue of payment of compensation to farmers who were on the land in dispute. Counsel referred to the definition of ‘contradiction’ in the case of Jimmy Vs State (2013) 18 NWLR (Pt 1386) 229 and stated

that Counsel misconstrued the evidence of the witness and that there was no such contradiction and that the evidence of the witness read along with that of the first defence witness and the contents of the document on page 73 of Exhibit D1 proved that compensation was indeed paid to the seventeen farmers listed therein, including the father of the Appellants. Counsel noted that the Appellants did not file a defence to the counterclaim of the Respondents and did not thus contest the case of the Respondents therein and that the Respondents were entitled to judgment on that score and he referred to the cases of Dabup Vs Kolo (1993) NWLR (Pt 317) 254 and Unokan Ent. Ltd Vs Omuvwie (2004) LPELR 6212(CA). Counsel stated that the Respondents led cogent evidence to prove the unchallenged case made out on the counterclaim and he urged this Court not tamper with the finding of the lower Court and to resolve the second issue for determination in favour of the Respondents.

Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.

Reading through the records of appeal,

particularly the pleadings of the parties, the notes of evidence made by the lower Court, the final written addresses of Counsel to the parties and judgment of the lower Court, as well as the notice of appeal and the arguments contained in the respective briefs of arguments of the parties in this appeal, this Court agrees that there are two issues for determination in this appeal. These are:
i. Whether, on the state of the pleadings and the evidence led by the parties at trial, the lower Court was correct when it found that the Appellants did not make out a credible case to sustain the claims sought by them.
ii. Whether, on the state of the pleadings and the evidence led by the parties at trial, the lower Court was correct when it found that the Respondent made out a credible case to sustain the claims sought by them on the counterclaim.

This appeal will be resolved on these two issues for determination and the arguments of Counsel to the parties will be considered under the two issues for determination. The two issues for determination will be considered seriatim.

The deliberations on the first issue for determination must commence from

the nature of the claims sought by the Appellants before the lower Court and the case they made out in support thereof on the pleadings and in the evidence led. The principal claim of the Appellants was for a declaration that they were, at the time material to this suit, customary owners of the land in dispute which is situate in the West of Agingi Market, Kisaloi Village in Buhit District in Bassa LGA of Plateau State. The second and third reliefs sought by the Appellants, i.e. a declaration that the first Respondent never bought or any howsoever acquired interest in the land in dispute and for an order of perpetual injunction restraining the arrest and/or detention of the Appellants by reason of the complaint of the first Respondent, were clearly dependent on this principal claim. It is the success of the principal claim that will provide the impetus for the grant of the second and third claims.

The key words in the principal claim of the Appellants are that they were the owners of the land in dispute at the time material to the suit. The phrase “the time material to the suit” in ordinary parlance means at the time the contravening action of

the Respondents which led to the filing of the suit occurred. Reading through the averments contained in the pleadings of the Appellants, this was in June 2016, when the first Appellant was invited by the officers of the second Respondent to their office to respond to the complaint lodged by the first Respondent in connection with the land in dispute. The Appellants averred that this was what prompted them to file the present action in the lower Court. In other words, the principal claim of the Appellants was for a declaration that they were the customary owners of the land in dispute which is situate in the West of Agingi Market, Kisaloi Village in Buhit District in Bassa LGA of Plateau State as at June 2016.

The question that arises is – whether the Appellants made out a credible case to sustain this claim? It is trite law that in an action for declaration of ownership of land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party

– Ugoji Vs Onukogu (2005) 16 NWLR (Pt. 950) 97, Ashiru Vs Olukoya (2006) 11 NWLR (Pt. 990) 1, Njoku Vs Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 NWLR (Pt. 1011) 239, Usung Vs Nyong (2010) 2 NWLR (Pt. 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt. 1206) 559. Where a claimant’s claim to a piece of land in dispute is predicated on ownership, the onus is on him to prove and establish his ownership – Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348.

The starting point for the consideration of the case of the Appellants must be the pleadings. Pleadings are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Orodoegbulam Vs Orodoegbulam (2014) 1 NWLR (Pt. 1387) 80, Aminu Vs Hassan (2014) 5 NWLR (Pt. 1400) 287, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B,

Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G, Okoye Vs Nwankwo (2014) 15 NWLR (Pt 1429) 93.

It is a fundamental rule of pleadings that the parties and the Courts, both the trial Court and the appellate Court are bound by the averments contained in the pleadings filed and the parties cannot go outside them in the agitation of their respective cases and the Courts cannot go beyond the pleadings in the consideration of the cases of the parties – Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Reptico S. A. Geneva Vs Afribank Nigeria Ltd (2013) 14 NWLR (Pt 1373) 172, Phillips Vs Eba Odan Commercial & Industrial Company Ltd (2013) 1 NWLR (Pt 1336) 618.

Now, what was the case of the Appellants on the pleadings? It was their case that the land in dispute was first cleared and cultivated by their progenitor called Insap and that it was thereafter inherited by his son called Ayhok and that on the death of Ayhok, it inherited by his son called Achaka. It was their case that on the death of Achaka, his son called Ayhok Achaka inherited the land, gifted a part of the land to one Dominic

Ayiki Akpana and retained ownership of the rest until his death in 1990. It was their case that they inherited the land thereafter and retained possession of same until the year 2000 when they partitioned the land into plots and distributed it amongst their uncles and cousins. It was their case that the beneficiaries of the land sold their respective plots of land and that by the end of 2011, all the plots had been sold and were being developed by the respective purchasers.

In other words, it was the case of the Appellants that as at 2011, all the members of Insap family of Agingi in Bassa Local Government Area of Plateau State to whom the land in dispute was partitioned and shared in the year 2000, and on whose behalf they commenced the present suit, had sold all the plots of land to third parties. This was also the tenure of the case of the Appellants in the evidence led by the two claimant witnesses. It is an elementary principle of land litigation that where a party has made an outright sale of land to a third party, his proprietary interest in the land becomes completely vacated or extinguished. Such a party cannot pretend to have subsisting interest

of whatever nature worthy of protection by the mere fact that he was the vendor of the land to a third party; he cannot make any claim to the land – Ige Vs Farinde (1994) 7 NWLR (Pt. 354) 42, Amuda Vs Ajobo (1995) 7 NWLR (Pt 406)170, Okoli Vs Ojiakor (1997) 1 NWLR (Pt. 479) 48, Yusuf Vs Kode (2002) 6 NWLR (Pt. 762) 231, Jinadu Vs Esurombi-Aro (2009) 9 NWLR (Pt. 1145) 55, Oni VsOlokun (1995) 1 NWLR (Pt 370) 189. This is simple common sense which demands that a person cannot eat his cake and have it – Oduola Vs Coker (1981) 5 SC 197, Sanyaolu Vs Coker (1983) 3 SC 125, Olawore Vs Olanrewaju (1998) 1 NWLR (Pt 534) 436, Ajao Vs Obele (2005) 5 NWLR (Pt 918) 400.
Upon the sale or alienation of landed property, all the rights and interests in the said property revert to or become vested in the new owner – Farajoye Vs Hassan (2006) 16 NWLR (Pt. 1006) 463. The Courts have held that once a claimant has disposed of a property in respect of which he seeks an injunction, there is no justification for granting any order of injunction in his favour – Nwosu Vs Otunola (1974) 4 SC 21, Ajuwa Vs Odili (1985) 2 NWLR (Pt. 9) 710, Udo Vs Obot (1989) 1 NWLR

(Pt. 95) 59, Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt 1198) 179. This is the principle upon which the doctrine of nemo dat quod non habet, i.e. no one may convey what no longer belongs to him, is predicated. Where a piece or parcel of land has been sold to party, there cannot be a later sale of the piece or parcel of land to another party because as at the time of the later sale, the vendor will have nothing in law to sell – Anyaduba Vs Nigeria Renowned Trading Co (1992) 5 NWLR (Pt. 243) 535, Tewogbade Vs Obadina (1994) 4 NWLR (Pt. 388) 326, Macaulay Vs Omiyale (1997) 4 NWLR (Pt. 497) 94, Odusoga Vs Ricketts (1997) 7 NWLR (Pt. 511) 1.

Thus, as at June 2016, the time material to the claim of the Appellants in the present case, the Appellants had no proprietary interest in the land in dispute; their proprietary interest was extinguished in 2011, when they admitted that they sold all the plots of the land, to third parties and who had built on the land. They cannot thus be heard to be claiming for a declaration that they are the owners, customary or otherwise, of the land in dispute as at June 2016, the time material to this suit. It is trite law that a

claimant is bound by the reliefs sought on the writ of summons and statement of claim – Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211, Commissioner of Works, Benue State Vs Devcon Construction Co. Ltd (1988) 3 NWLR (Pt 83) 407, Okoya Vs Santili (1988) 3 SCNJ 83, Osuji Vs Ekeocha (2009) 16 NWLR (Pt 1166) 81. The Court too is bound by the reliefs sought by a party, and cannot go outside them to consider and grant what is not claimed – Etim Ekpenyong & Ors Vs Inyang Effiong Nyong and 6 Ors (1975) 2 SC 71, Attorney General of the Federation Vs A. I. C. Ltd (2000) 10 NWLR (Pt 675) 293.

On the strength of the pleadings and on the evidence led by the Appellants in proof of their case, their case must fail. It is irrelevant whether their claim for ownership was based on traditional evidence and/or acts of possession and ownership. The claim cannot succeed. The finding of the lower Court that the Appellants did not make out a credible case to sustain their claims cannot thus be faulted. The first issue for determination is resolved in favour of the Respondents.

This takes us to the second issue for determination on the

counterclaim of the Respondents. They counterclaimed for (i) a declaration that it is the statutory owner of the land in dispute covered by Certificate of Occupancy No BP 4039; (ii) a declaration that the previous customary owners of the land had been paid compensation; (iii) damages for trespass; and (iv) an order directing the second Respondent to continue to investigate and to prosecute all the persons indicted in the allegation of criminal trespass and conspiracy to commit same. The case of the Respondents was that the land in dispute is the portion of land covered by a Certificate of Occupancy No BP 4039 and measuring 4.02 hectares situate in Agingi in Bassa LGA and that the land was allocated to the first Respondent by the Ministry of Land and Survey Plateau State on the 7th of March, 1983 after the payment of due compensation to seventeen individuals, including one Achaka Ayhok, the father of the Appellants. They pleaded the several steps taken by the first Respondent to obtain the grant of the Certificate of Occupancy for the land dating from 1975 when an application for a statutory right of occupancy was made by the then Benue Plateau Publishing

Corporation, Jos to the meeting held with the Secretary of Bassa LGA on payment of compensation to the local farmers and the several steps they took to protect their ownership of the land including getting the Ministry of Lands and Survey to reestablish the survey beacons on the land and to issue stop orders to persons erecting structures on the land. They pleaded that they would rely on the property file of the land in dispute in proof of the said steps.

The records of appeal show that the Appellants did not file a defence to the counterclaim. The law is that counterclaim is a separate action and that it is invariably necessary for a plaintiff to file and serve a defence to a counterclaim. If he fails to do so or files one without traversing the material averment in the counter-claim, then there will be no issues joined between him and the defendant on the subject-matter of the counter-claim and the allegation contained in the counter-claim is regarded as admitted – Nigerian Housing Development Society Ltd Vs Yaya Mumuni (1977) 2 S.C. 57, 85- 86. This, however, does not translate to automatic victory for the Respondents on their counterclaim. This

is because a claimant, whether by the main claim or counterclaim, must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a defence does not exonerate the responsibility on a claimant to prove his claim – Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (Pt. 960) 160 and Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt.1057) 218.
This is particularly more so, as in the instant case, where the Respondents sought declaratory reliefs because declaratory reliefs are not granted either based on admissions or default of defence – Akaninwo Vs Nsirim (2008) 9 NWLR (Pt. 1093) 439 and Olubodun Vs Lawal (2008) 17 NWLR (Pt. 1115) 1. In the case of Ogbonna Vs Attorney General Imo State (1992) 1 NWLR 647 at 698 Supreme Court per Akpata J.S.C. made the point thus:
“Failure of a plaintiff to file a defence to a counter-claim 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 claim, as in this case, and had filed no defence to the counter-claim the defendant’s claim in his counterclaim 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 put a defence.”
It must however, be stated that in view of the failure of the Appellants to file a defence to the counterclaim, the onus on the Respondents will be discharged on minimal evidence as the Appellants failed to join issues on the averments thereon – Oke Vs Aiyedun (1986) 2 NWLR (Pt 23) 548 at 560, Akanbi Vs Alao (1989) 3 NWLR (Pt. 108) 118 at 140, Onwuka Vs Omogui (1992) 3 SC 89 at 127, Adewuyi Vs Odukwe (2005) 14 NWLR (Pt 945) 473.

The Respondents called two defence witnesses who testified in support of the facts pleaded on the counterclaim and they tendered the entire property file of the land in dispute, containing several pages of documents, as Exhibit D1. The witnesses, particularly the second defence witness, referred to different pages of the property file, Exhibit D1, in proof of the assertions of the Respondents on the steps taken to obtain the Certificate of Occupancy of the property including

payment of compensation to seventeen farmers in respect of the land and the steps taken to protect their ownership of the land. The Certificate of Occupancy issued in favour of the first Respondent by the Plateau State Ministry of Lands and Survey over the land in dispute was contained in the property file.

The Appellants led no evidence to counter, challenge or countermand the specifics of the case of the Respondents on the counterclaim. The law is that the effect of a defendant’s failure to call evidence in defense of the specifics of the case of the claimant against him at the trial is that he is presumed to have admitted the case made against him by the claimant – Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt. 983) 585 and Okolie Vs Marinho (2006) 15 NWLR (Pt. 1002) 316. Counsel to the Appellants made a big issue of an alleged contradiction in the evidence of the second defence witness in chief and under cross examination on the payment of compensation to seventeen farmers, including the father of the Appellants, in respect of the land in issue. This Court has read the totality of the evidence of the two

defence witnesses as well as the contents of the different pages of Exhibit D1 referred to by the witnesses on the issue of payment of compensation and must say that evidence of the witnesses were consistent with the contents of the documents and that there was no contradiction in the evidence of the witnesses.

Akpan Vs Udoh (2008) 3 NWLR (Pt. 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt. 1329) 286. Similarly, the Appellants did not argue or canvass the issue before the trial Court and the law is that they cannot thus do so in this appeal – Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) 96 at 122, Aiyeola Vs Pedro (2014) 13 NWLR (Pt. 1424) 409.

The Respondents led evidence to show that the first Respondent was the holder of a Certificate of Occupancy properly issued by the Ministry of Lands and Survey, Plateau State over the land in dispute after the taking of all necessary steps. It is settled law that 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 by the other party proving he had a better title to the land before the issuance of the certificate of occupancy – Ilona Vs Idakwo (2003) 11 NWLR (Pt830) 53,

Ezeanah Vs Attah (2004) 7 NWLR (Pt. 873) 468, Aminu Vs Ogunyebi (2004) 10 NWLR (Pt 882) 457, Din Vs Attorney General, Federation (2004) 12 NWLR (Pt 888) 459, CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (Pt 992) 530, Madu Vs Madu (2008) 6 NWLR (Pt 1083) 296, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597. The Appellants did not make out a cogent and credible case to rebut the presumption raised in favour of the Respondents by their Certificate of Occupancy.

It is clear, from the respective cases presented by the parties on the pleadings and in the evidence of the witnesses, that the Respondents led sufficient evidence to discharge the minimal onus of proof on them in respect of their counterclaim. The finding of the lower in this regard cannot be faulted. The second issue for determination is thus also resolved in favour of the Respondents.

In conclusion, this Court finds no merit in the appeal and it is hereby dismissed. The judgment of the High Court of Plateau State delivered in Suit No PLD/J385/2016 by Honorable Justice D. D. Longji on the 17th of December, 2018 is affirmed. The Respondents are

awarded the costs of the appeal assessed at N100,000.00. These shall be the orders of the Court.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I was privileged to read the draft of the lead judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU JCA just delivered.

I agree entirely with his reasoning and conclusion resulting the dismissal of the appeal.

I also dismiss the appeal and abide by the orders therein made including the order for cost in favour of the Respondents.

BOLOUKUROMO MOSES UGO, J.C.A.: I agree.

Appearances:

C. Kigun For Appellant(s)

M. Dashak, Principal State Counsel MoJ, Plateau For Respondent(s)