MGBOROGU v. OKEKE (2020)

MGBOROGU v. OKEKE

(2020)LCN/14168(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/MK/243/2017

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

TIMOTHY MGBOROGU APPELANT(S)

And

ANTHONY OKEKE RESPONDENT(S)

RATIO

WHETHER OR NOT THE APPEAL COURT CAN SUBSTITUTE ITS VIEWS IN ANY APPEAL IN PLACE OF THE FINDINGS OF THE TRIAL COURT

Be that as it is, this Court is however not a Court of trial or first instance unlike the Lower Court which is by law saddled with the onerous task of seeing and hearing the witnesses of parties, watch the demeanors of witnesses and evaluating the evidence adduced before reaching a decision one way or the other. As an Appellate Court, the law forbids us from substituting our views in any Appeal in place of the findings of the Lower Court who had the rare privilege of hearing; watching the demeanors of witnesses and evaluating evidence adduced before entering a judgment which in some worth are mostly subject of Appeal especially where indeed it is found that the decision is not perverse and no miscarriage of justice was occasioned in the decision of the Lower Court. However, where it is found on Appeal that the Trial Court was in error in the course of evaluating the evidence adduced by parties which led to a perverse decision and a miscarriage of justice occasioned, the Court is therefore empowered by law to interfere by evaluating the evidence adduced by parties at the Lower Court from the Record of Appeal placed before it with the sole aim of reversing the perverse decision where it is being found to be so. See SEAVIEW INVESTMENTS LTD. v. MR. TOYIN MUNIS & Ors. (1991) 6 NWLR (Pt. 195) 73 Para. 17; LT. COL. MRS R. A. F. FINNIH v. J.O IMADE (1992) LPELR-1277 (SC); FASHANU v. ADEKOYA (1974) 1 ALL NLR (Pt. 1) 35; FATOYINBO & Ors. v WILLIAM & Ors. (1956) 1 F.S.C 87. PER AGUBE, J.C.A.

WHETHER OR NOT THE PLAINTIFF IS TO LEAD EVIDENCE TO ESTABLISH HIS CLAIM AND SUCCEED ON THE STRENGTH OF HIS CASE IN AN ACTION FOR DECLARATION OF TITLE OVER A LAND

In any event, the law is trite that in a case for declaration of title over a land, the plaintiff must led evidence to establish his claim and must succeed based on the strength of his case and not on the weakness of the evidence of the defendant and this is assessed by preponderance of evidence and on the balance of probability. However, Plaintiff or defendant is not completely shoot out and/or estopped from relying or taking advantage of the evidence of the Plaintiff or Defendant where it supports their case and the Court is empowered to use same in titling the scale of justice in favour of the parties depending on their respective claim or defence. PER AGUBE, J.C.A.

WAYS BY WHICH A PLAINTIFF CAN PROVE HIS TITLE OVER A LAND

Furthermore, I strongly agree with the submissions of the respective Learned Counsel that the law is firmly settled in a host of judicial authorities that a plaintiff or defendant/Counter-Claimant can only prove his title over a land through any of the five (5) ways to wit: “1. By traditional history or evidence 2. By Production of document of title which must be duly authenticated and executed 3. By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of a true ownership 4. By acts of possession and enjoyment 5. By 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 owner of the land in dispute.” See. IDUNDUN v. OKUMAGBA (supra); PIARO v. TENALO (supra); AMAJIDEOGU v. ONONAKU (1988) 2 MWLR (Pt. 78) 614; IREJU NWOKIDU & Ors. v MARK OKANU & Anor. (2010) 1 SCNJ 167. PER AGUBE, J.C.A.

WHETHER OR NOT THE RECORD OF PROCEEDINGS OR JUDGEMENT OF CRIMINAL PROCEEDINGS CAN BE ADMITTED IN A CIVIL TRIAL

The Supreme Court had in a host of decisions held that admission of record of proceedings/judgment of criminal proceedings in a civil trial or proceeding was wrong. Such document was certainly inadmissible in any event. In other words, record of proceedings/judgment in criminal proceedings, should not be admitted in evidence in a civil proceeding. See ABUBAKAR & Anor. v JOSEPH & Anor. (2008) LPELR-48 (SC); OYEWOLE v. KELANI (1948) 12 WACA 327; HOLLINGTON v. NEWTHORN & CO. LTD (supra); NWACHUKWU v. EGBUCHU (1990) 3 NWLR (Pt. 139) 435 at 44 CA. PER AGUBE, J.C.A.

THE PRIMARY FUNCTION OF THE TRIAL COURT

“The law is well settled that evaluation of evidence is primarily the function of the trial Court…. However, where the Trial Court fails to evaluate such evidence properly or at all, as happened in the present case, the Appellate Court can intervene and itself re-evaluate the evidence particularly where the bulk of the evidence is documentary as was the situation in this case…” per Mohammed, JSC (page 72, paragraphs C-E).
SeeIWUOHA v. NIPOST LTD (2003) 8 NWLR ( Pt. 82) 308 at 337; FIRST BANK (Nig.) PLC v. CHIEF CHARLES ORAKWUE AZIFUAKU (2016) LPELR-40173 (CA). PER AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Benue State Holden at Makurdi Judicial Division, delivered by Hon Justice S.O. Itodo on the 26th of February, 2016 wherein the claim of the Plaintiff/Respondent was upheld in its entirety while the Counter-Claim of the Defendant/Appellant was dismissed. Dissatisfied by the said judgment, the Appellant filed a Notice of Appeal on the 26th of May, 2016 but dated 24th May, 2016 with seven (7) Grounds of Appeal and same is set out below without their respective particulars, to wit:
“GROUND ONE (1):
The Learned Trial Court erred in law when it relied on the case of the Defendant/Appellant to enter judgment for the Plaintiff/Respondent when it held thus: “The evidence placed before the Court shows that Plaintiff who traced his title to his vendor who in turn predicated her title on the title of her husband Alhaji Asenya whose title I hereby adjudged valid has proved his case.
GROUND TWO (2):
The Learned Trial Judge misdirected himself in law when relied on Exhibit 16 the criminal case against the husband of the

Plaintiff/Respondent’s vendor and held thus: “…the records in page 17 of Exhibit 16 clearly shows that Alhaji Asenya had developed the land. He was therefore entitled to a Certificate of Occupancy” and thereby occasioned a miscarriage of Justice.
GROUND THREE (3):
The Learned Trial Judge erred in law when he failed to consider that a holder of a deemed holder of a Statutory grant of Occupancy without the consent of the Governor first had and obtained as required by Section 34 (7) of the Land Use Act, 1978 (now Cap L5 Laws of the Federation of Nigeria, 2004).
GROUND FOUR (4):
The Learned Trial Judge erred in law when he did not avert his mind to the fact there was a valid instrument or any instrument at all alienating or transferring the title in the land from Alhaji Asenya to Hajia Guba to enable her alienate to the Plaintiff/Respondent.
GROUND FIVE (5):
The Learned Trial Judge erred in law when he declared: “the Plaintiff has proved his case while the Defendant has not proved his counter-claim. At best the Defendant is a meddlesome interloper who seeks to reap where he did not sown. Such brigands must

be stopped.
GROUND SIX (6):
The Learned Trial Judge misdirected himself in law when he said: “it is clear from Land Use (Designation of Urban Area (Amendment) Order, 1981 which finds interpretation in the above decision that Local Government cannot grant a right of occupancy in respect of land in an urban area such grant are unlawful. On the particulars fact of the case, the Area wherein the land is situate became an urban area, at least in 1981, yet about four years later, that is 1984, the Local Government still granted the Certificate of Occupancy. This was of course outside its authority and was no doubt unlawful. If the same was unlawful, the it conferred no right on the Defendant/Counter-Claimant. And if he had no right and therefore interest in the property, can he be heard to complain that his adversary had not title to the land, when on the contrary Exhibit 16 clearly shows that Alhaji Asenya from whom the Plaintiff’s vendor derived her title ought to be entitled to the land and when by virtue of S. 34 of the Land Use Act he was equally entitled to a grant of a certificate of Occupancy.” And therefore occasioned a

miscarriage of justice.
GROUND SEVEN (7):
The entire decision/judgment is against the weight of evidence adduced in the case.
RELIEF SOUGHT:
(1) To allow this Appeal and set aside the judgment of the Lower Court dated 26/2/2016.
(2) An Order of this Court entering judgment for the Appellant on his Counter-Claim as contained in paragraph 45 (a) – (e) thereof.
(3) Any consequential reliefs the Court deems fit to make in the circumstances of this case.”

STATEMENT OF FACTS:
From a careful perusal of the facts set out by the respective parties in their Brief of Argument, I shall adopt the facts as set out by the Appellant as same is in all fours without of the Respondent. Be that as it is, the parties are disputing over a piece of land lying and situate at the Ankpa Ward, Makurdi covered by a certificate of Occupancy No. BN 9657 measuring 30.55x 30.66 square meters. While they Plaintiff/Respondent relied on a purported land sale agreement between himself and one Hajia Guba dated 1st June, 2002 (available at page 9, 10 and 11 of the Record of Appeal) and a Benue State Certificate of Occupancy No. 9657 dated 2nd

September, 1997 (available at pages 12- 16 of the Record of Appeal) as his root of title, the Defendant/Appellant relied on a Deed of Assignment between himself and his vendor Godfrey Amamsi dated 31st August, 1992 (at pages 56 -60 of the Record of Appeal) and a Makurdi Local Government Certificate of Occupancy No. 1871 dated 5th January, 1984 (at page 45 of the Record of Appeal).

At the trial, the Respondent called one witness and also testified for himself. He (Respondent) tendered five (5) documents. On the part of the Appellant, he testified for himself and tendered fifteen (15) documents. At the end of trial, the learned Trial Judge entered judgment in favour of the Respondent as per his claim and dismissed the Appellant’s Counter-Claim which has culminated into the instant Appeal.

ISSUES FOR DETERMINATION:
In compliance with the extant Rules of this Court, Chief Dr. (Mrs.) Caroline Mbafan Ekpendu settled the Appellant’s Brief of Argument dated 11th day of September, 2017 but filed on the 19th day of September, 2017 wherein she formulated three (3) Issues for determination arising from the Grounds of Appeal, to wit:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“(1) Whether or not the Lower Court was right in law to award the land in dispute to the Plaintiff/Respondent on the strength of the pleadings and evidence before the Court. (Grounds 1, 3, 4, 5 & 7).
(2) Whether or not the reliance on Exhibit 16 (Record of proceedings in Case No. MCM/227c1/84 between Commissioner of Police v. Alhaji Abdullahi) by the Lower Court and the adoption of the testimony of witnesses therein in the determination of the present suit was legally supportable (Ground 2).
(3) Whether or not the Lower Court was legally justified in dismissing the case of the Defendant/Appellant on the ground that the issuance of the Makurdi Local Government Certificate of Occupancy to the Defendant/Appellant was a nullity when the Plaintiff/Respondent failed to plead and prove how he acquired the land in dispute in the first place (Ground 6).”

Upon service of the Respondent’s Brief of Argument on the Appellant, the Learned Counsel for the Appellant filed an Appellant’s Reply Brief on the 7th day of December, 2017.

On the part of the Respondent, Rowland C. Ndefo Esq. settled the Respondent’s Brief of

Argument dated 21st day of November. 2017 but filed 23rd day of November, 2017 wherein he formulated three (3) Issues for Determination, to wit:
“1. Whether the Lower Court was right in relying on the part of the evidence of the Appellant at trial favourable to the Respondent to give judgment for the Respondent (Grounds 1 and 2).
2. Whether non registration of the Sale Agreement of the land in dispute between Hajia Guba and the Appellant for No. BN 9657 makes the transaction invalid (Grounds 3 and 4).
3. Whether on the pleadings and the evidence, the Lower Court was right in giving judgment for the Respondent and dismissing Appellant’s Counter-Claim (Grounds 5, 6 & 7).”

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER ONE:
It is the contention of the Appellant that the Respondent who was Plaintiff at the Trial Court, premised his claim to ownership of the land in dispute via a Land Sale Agreement dated 1st day of June, 2002 and a Certificate of Occupancy No. BN 9657 purported issued to his vendor. She then argued that by virtue of the decisions in IDUNDUN v. OKUMAGBA (1976) 9- 10 SC;

MOGAJI v. CADBURY NIG. LTD & Ors. (1985) 7 SC 59 and a host of other cases, there are five (5) ways of proving title to land. He referred the Court to the findings of the Lower Court at Page 198 of the Record of Appeal, Paragraphs 3 & 4 of the Respondent’s Statement of Claim and paragraph 2 & 3 of the Respondent’s Written Deposition( Pages 4, 9 11, 12- 16 of the Record of Appeal).

According to the Learned Counsel for the Appellant; for the said documents relied upon by the Respondent to qualify as documents of title conferring rights on the Claimant; he must prove that the documents is genuine; that the document has been executed, stamped and registered; that the grantor has the capacity and authority to make the grant; that the grantor had in fact what he purported to grant and the documents has the effect claimed by the holder of the instrument. BELLO v. SANDA (2012) 1 NWLR (Pt. 1281) 219 at 241- 242; ROMAINE v. ROMAINE (1992) 4 NWLR (Pt. 238) 650; DOSUNMU v. DADA (2002) FWLR (Pt. 150 1944 and AYORINDE v. KUFORIJI (2007) 4 NWLR (Pt. 1024)341; were cited and relied upon in support of the above submissions.

In the instant case, the

Appellant’s Learned Counsel submitted that the Respondent woefully failed to prove any of the above stated legal requirements as there was no pleading or evidence as to how his vendor acquired the land in dispute thereby entitling her to the grant of the Certificate of Occupancy No. BN 9657 rather the Respondent purported to contend that his Vendor’s husband had been farming on the disputed land for 37 years before the Government created a layout thereat and subsequently issued him/her a Certificate of Occupancy. He referred the Court to the evidence of PW2 (Umar Abdullahi Asenyan) at Page 6 of the Record of Appeal and she further argued that the said evidence of PW2 is worthless and legally untenable for the following reasons, to wit: (a) for being a hearsay evidence and inadmissible; (b) the facts deposed by PW2 were not pleaded and no evidential value attached; (c) the witness failed to disclose how his father Alhaji Abdullahi Asenya acquired the land in dispute; (d) the mother of the witness “Haya Cuba” bears a radically different name from that of the Respondent’s Vendor said to be “Hajia Guba” and (e) PW2 was not

a witness to the land sale transaction between the plaintiff/Respondent and Hajia Guba. SECTION 37 & 38 of the Evidence Act, 2011; VANDERPUYE v. GBADEBO (1998) 2 SCNJ 8 at 13; NSIRIM v. NSIRIM (2002) 2 SCNJ 46 at 57 were cited and relied upon in support of the above submissions.

Moving on, the learned Counsel for the Appellant contended that the Respondent failed to prove that his vendor had the capacity and legal right to alienate the land to him and mere tendering of an Instrument of title to land does not automatically prove that the land therein purportedly conveyed, granted or transferred by the said Instrument becomes the property of the grantee. KYARI v. ALKALI (2001) 5 SCNJ 421; NGENE v. IGBO (2000) 4 NWLR (Pt. 651) 131; ADEOLA v. ISHOLA (2007) 1 SCNJ (Pt. 28) 577; OLUKOYA v. ASHIRU (2006) 115, (2006) SCNJ (Pt. 15) 531 and BELLO v. SANDA (supra); were referred in further buttressing the point that the Plaintiff/Respondent’s case was bound to fail and ought to be dismissed without recourse to the defense of the Appellant since he did not prove how either his Vendor Hajia Guba or her Husband Alhaji Abdullahi acquired the disputed land.

According to the Appellant’s Learned Counsel, the Sale Agreement between the Plaintiff/Respondent and Hajia Guba being a document that was purportedly used in conferring title, the said document fell within the meaning of an Instrument in SECTION 2 of the LAND REGISTRATION LAW CAP 88 LAWS OF BENUE STATE 2004 and by operation of SECTION 7 and 15 of the said Law, it was mandatory for it to be registered, failure of which the document was ineffectual which unfortunately the Respondent failed to do so and therefore the said Agreement was inadmissible and incapable of conferring title on the Respondent. Furthermore, the said Sale Agreement was not properly executed between the parties being that on the face of the said document, it did not show who signed the purchase agreement as vendor and purchaser. The law is trite that document speaks for themselves and oral testimony is inadmissible to vary, add or take way the content of documents, she submitted relying on the BURAIMOH v. KARIMU (1999) 9 NWLR (Pt. 618) 310; DANTATA v. DANTATA (2001) 26 WRN 104 CA and NIDB v. OLALOMI INDUSTRIES LTD (2002) 5 NWLR (Pt. 761) 532 referred. Appellant’s Learned

Counsel contended that the transaction between the Respondent and his vendor violated the express and mandatory provisions of SECTION 22 (1) of the LAND USE ACT as there was no evidence before the Lower Court to prove that the consent of the Governor of Benue State was sought and obtained either before or after the alienation of the land purportedly covered by the Certificate of Occupancy from Hajia Guba to the Respondent and worse still that the Respondent admitted under Cross-examination that the said consent from the Governor was not sought and obtained. She posited that in an action for declaration of title to land, the Plaintiff must succeed on the strength of his case and not weakness of the defence. SAVANNAH BANK v. IBRAHIM (2000) FWLR (Pt. 25) 1626 at 1629; OWONIBOYS TECHNICAL SERVICES LTD v. UBN (2003) 40 WRN 1; MOGAJI v. CADBURY NIG. LTD & Ors. (supra) and ADELEKE v. AKINYELE (2011) 49 WRN 22; KODILINYE v. ODU (2003) 36 WRN 175; OYEBANJI v. AKANBI (2011) 12 WRN 86; AKINDURO v. ALAYA (2007) 22 WRN 1 were cited in support of the above submissions.

On the whole, the Learned Counsel for the Appellant submitted that Learned Trial Judge was in

error when he entered judgment in favour of the Respondent solely on the perceived weakness of the Appellant’s defence and completely turned a blind eyes to the grievous shortcomings in the case of the Respondent which has occasioned a miscarriage of justice. She urged the Court to resolve this Issue Number one (1) in favour of the Appellant.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON APPELLANT’S ISSUE NUMBER ONE (1)(RESPONDENT’S ISSUE 2):
Per contra, the Learned Counsel for the Respondent submitted that Exhibit 1 was not only a “Sale Agreement” but is also a receipt evidencing payment for the disputed land and based on the forgoing, the said Exhibit 1 created an interest in favour of the Plaintiff over the land which is capable of being converted to legal estate. He further posited that there was evidence from the Respondent that he was in possession after the said Exhibit 1 was executed and he constructed a dwarf fence around the disputed plot. He cited and relied on AWAOGBO v. EZE (1995) 1 SCNJ 157 at 168 – 169; THOMPSON v. AROWOLO (2003) 4 SCNJ 20; NSIEGBE v. MGBEMENA (2007) 4 – 5 SC 1;

YARO v. AREWA CONSTRUCTION LTD. (2007) SC (Pt. 11) 149 and DR. BENJAMIN OHIAERI v. ALHAJI YUSSUF (2009) 2 SCNJ 318 in support of the above submissions.

On the whole, he contended by submitting that the non registration of Exhibit 1 does not make the transaction therein illegal, relying on the case of OLUKOYA v. ASHIRU (2006) 5 SCNJ 107. He urged the Court to resolve this issue in favour of the Respondent.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER TWO (2):
The Learned Counsel for the Appellant in a bid to buttress and elucidate on this issue, graciously referred the Court to Paragraph 17 of the Statement of Defence/Counter-Claim; Paragraph 16 of the Appellant’s Written Deposition at pages 29 and 37 of the Record of Appeal respectively and also the findings of the Learned Trial Judge in his Judgment at Pages 196-197 of the Record of Appeal and contended that based on the combined effect of Section 59, 60, 61 and 62 of the Evidence Act 2011, the said Exhibit 16 was admissible only in proof of the fact for which it was tendered to wit: that the husband of the Plaintiff/Respondent’s vendor was prosecuted for criminal

trespass on the land in dispute by the Appellant’s vendor and nothing more. In other words, the said Exhibit 16 remained inadmissible and of no evidential value for any other purpose or proof whatsoever. Therefore, the findings of the Lower Court on the said Exhibit 16 as well as the testimony of the witnesses therein were totally irrelevant and inadmissible in the determination of the present suit. She cited and relied on the case of HOLLINGTON v. HEWTHORNE & CO. (1948) K.B 587, (1943) 2 E.R 35; ADELEKE v. ADEWUSI (1961) ALL NLR 37 at 39 and ZANG v. COMMISSIONER OF POLICE (1960) NRNLR 86.

According to the Learned Appellant’s Counsel, the Trial Court flew off the tangent by placing reliance on the testimony of witnesses in Exhibit 16 in determining the case before it as same was a desecration of the law, legally unsupportable, perverse and occasioned a miscarriage of Justice which this Court is called upon to set aside and resolve this Issue Number Two (2) in favour of the Appellant.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON APPELLANT’S ISSUE NUMBER TWO (RESPONDENT’S ISSUE NUMBER ONE):
In opposition to the

contention of the Appellant, the Learned Counsel for the Respondent argued that the said Exhibit 16 was tendered by the Appellant to use same in discrediting the evidence of PW2 for the Respondent because the said PW2 was been prosecuted at the instance of Godfrey Amamasi (vendor to the Appellant) over the disputed land. The Learned Respondent’s Counsel then submitted that the witness for the accused (DW3) under cross-examination made it very clear that the land in dispute belongs to the State Government and not Makurdi Local Government. He referred the Court to Page 67 and 77 of the Record of Appeal.

Moving on, he posited that in a case of declaration of title to land, the Plaintiff must rely on the strength of his case and not on the weakness of the defence. However, the law relieves the Plaintiff the burden of proof place on him in a case of declaration of title to land where the Plaintiff may rely on the evidence of the defence which is favourable to him. In the instant case, the said Exhibit 16 tendered by the Appellant was to show that PW2 was being prosecuted for trespass before the magistrate Court but Appellant lost the case at the

Magistrate Court and the said Exhibit 16 showed that the disputed land was not in fact under Makurdi Urban Area which only the Governor could grant title. He referred the Court to the findings of the Lower Court on this point at Page 196-199 of the Record of Appeal which the Appellant tried to use the said Exhibit 16 to prove his Counter-Claim which turned against him but rather strengthened the case of the Respondent. He cited and relied on the following cases to wit: KODILINYE v. MBANEFO ODU 2 WACA 336 at 337; VINCENT BELLO v. MAGNUS EWEKA (1981) 1 SC 101 at 102; ALHAJI S. A. KAZEEM v. MADAM WEMIMO MOSAKU (2007) 2 SCJN 135; ODUNZE v. NWOSU (2007) 5 – 6 SC; OSUJI v. EKEOCHA 258 (2009) 7 SCJN 40; CHUDI AKUNYILI v. IDEMILI EJIDIKE (1996) SCNJ 249; OKPALA EZEOKONKWO v. NWAFOR OKEKE (2002) 5 SCNJ 1; ODUNZE v. NWOSU (supra); GODFREY ANUKAM v. FELIX ANUKAM (2008) 2 SCNJ 62 and MINI LODGE v. NGEI (2009) 12 SCNJ 93 at 114; in support of the above submissions. He urged the Court to resolve this Issue Number 2 in favour of the Respondent.

APPELLANT’S REPLY ON ISSUE NUMBER TWO (2):
Per contra to the submissions of the Learned Counsel for the

Respondent on this Issue, the Appellant’s Learned Counsel argued in her submissions that where the document (in this case Exhibit 16) or the evidence to be utilized by the Court as tendered by the Defendant(Appellant) was a record of proceedings or a Court’s judgment as was the case before the Lower Court, the parameters se out by the law in Section 39, 46, 59- 62 and 232 of the Evidence Act 2011 and the judicial authorities enunciated; must be observed in such utilization. MONOPRIX NIG. LTD v. OKENWA (1995) 3 NWLR (Pt. 383) 325 at 342 and DADA v. BANKOLE (2008) 5 NWLR (Pt. 1079) 26 at 62 were cited and relied upon.

Moving on, the Learned Counsel for the Appellant maintained that the Trial Judge treated the evidence of witnesses in Exhibit 16 as establishing the truth of the facts stated therein without resorting to the above cited and referred provisions of the Evidence Act, 2011 and the judicial decisions. She submitted that a miscarriage of justice was occasioned by the Lower Court and such should be set aside and allow this Appeal.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER THREE (3):
In arguing this Issue,

the Learned Counsel maintained that the position of the law is that a Plaintiff in an action for declaration of title to land must succeed on the strength of his case and not on the weakness of the defence. She further posited that the Lower Court had the duty of appraising the case of the Respondent to ascertain whether or not he had proved the necessary ingredients of his claim as required by law; for he was duty bound to discharge that legal burden of proof but the Lower Court failed to do and misapplied the legal burden thereby occasioning a miscarriage of justice.

It was further contended by the Learned Counsel for the Appellant that the Respondent failed to plead and prove the root of title of the vendor; failed to call any witness to back up his assertion that he purchased the disputed land from his vendor Hajia Guba; the Respondent failed to disclose to the Lower Court whether the said Hajia Guba was alive or dead, neither was the where about of Alhaji Abdullahi, the husband of the Respondent’s vendor; neither was the duo called in evidence and therefore, the Respondent withheld these evidence and was caught up by the provision of

Section 167 (d) of the Evidence Act, 2011.

According the Learned Counsel, the Lower Court failed to correct these anomalies in the case but chose to place the State Government Certificate of Occupancy issued to the Respondent side by side with the Local Government Certificate of Occupancy issued to the Appellant, in arriving at the conclusion he did nullifying the Local Government ‘C’ of ‘O’ issued to the Appellant. She contended that this amounted to putting the cart before the horse and misplacement of evidential burden, occasioning a miscarriage of justice. On the whole, the learned Counsel submitted by urging the Court to hold that the dismissal of the Appellant’s case based on the purported illegality of the Makurdi Local Government Certificate of Occupancy issued to the Appellant when the Respondent who had the first evidential burden to discharge failed to discharge the burden of proof on him, occasioned a miscarriage of justice and allow this Appeal, set aside the judgment of the Lower Court, enter judgment in favour of the Appellant as per his Counter-Claim or make any other consequential Order as the Court deems fit to make

in the circumstance.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON APPELLANT’S ISSUE NUMBER THREE (RESPONDENT’S ISSUE 3):
Arguing in opposition to the submissions of the Appellant’s Learned Counsel on this issue, it is the position of the Respondent’s Learned Counsel that one among the five ways of proving title to land is by production of documents of title which are authenticated. He cited and relied on the cases of IDUNDUN v. OKUMAGBA (1976) 9-10 SC 246; PIARO v. TENALO (1976) 12 SC 13 at 37; ACHIAKPA v. NDUKA (2001) FWLR (Pt. 71) 1804 and MBANI v. BOSI (2006) 5 SCNJ 155at 163.

In the instant case, he posited that Exhibit 2 is a Certificate of Occupancy granted by the then Military Administrator of Benue State under the Land Use Act of 1978 to the vendor of the Respondent since 1997 and he also alluded that the evidence in Exhibit 16 tendered by the Appellant which shows that the land belonged to Benue State Government and not Makurdi Local Government. The Learned Counsel asserted that the Appellant could not puncture this piece of evidence and therefore the grant of the C of O No. BN 9657 extinguished all

existing rights on that land, he submitted. Furthermore, he went on to posit that since the Appellant could not impugn the authority of Exhibit 2, the combined effect of Exhibits 1 and 2 validated the title of the Respondent on the disputed land and the Lower Court was right in not attaching any importance to Exhibits 6, 7 and 8 by the Appellant to prove his own title. This is so because as at 1985 when the Certificate of Occupancy No.1871 was issued by the Makurdi Local Government, the said Local Government had been divested of its powers over the land in Makurdi Urban Area. MALLAM YUSUF OLAGUNJU v. CHIEF E.O. ADESOYE (2009) 4 SCNJ 96; TITILOYE v. OLUPO (1991) 7 NWLR (Pt. 205) 519 at 530; OLOHUNDE v. ADEYOJU (2000) 6 SCNJ 4700; EDIT No. 5 GAZETTE in VOLUME 6 OF 29th January 1981 and ADOLE v. OKAI (1981-1982) BSLR 49; were cited and relied upon in support of the above submissions.

Moving on, the Learned Counsel for the Respondent argued that if Makurdi Local Government issued Exhibits 6-8 illegally, the Appellant bought nothing and he cannot rely on those documents to claim title to the disputed land. He referred the Court to the findings of the Lower

Court on this at Page 198-199 of the Record of Appeal. He then urged the Court to resolve this Issue Number three (3) affirmatively in favour of the Respondent and dismiss this Appeal having shown that the Appellant has failed to show reasons why the decision of the Lower Court should be dislodged on Appeal.

APPELLANT’S REPLY ON ISSUE NUMBER THREE (3):
In response, the Learned Appellant Counsel reasserted their position that mere tendering of documents of title in a land matter without more, does not automatically prove that the land therein purportedly conveyed, granted or transferred by the Instrument becomes the property of the grantee. The grantee is still bound in law to prove how his grantor acquired the land in the first place. She posited that the Respondent failed to plead and prove how his vendor acquired the land and his reliance on those documents of title is accordingly of no moment.

Furthermore, on the argument of the Respondent on evaluation of evidence by the Lower Court, the Learned Appellant’s Counsel referred the Court to the case of MAJOR HAMZA AL-MUSTAPHA v. THE STATE (2013) 17 NWLR (Pt. 1383) 350 and submitted

that the Lower Court incorrectly assessed Exhibit 16 placed before it by the Appellant and used evidence of witnesses therein to fill in the gaps in the case of the Respondent without resorting to the provisions of the Evidence Act, 2011 on the utility of previous judgment in subsequent proceedings, particularly a criminal proceedings. Also that the said Exhibit 1 and 2 was incorrectly assessed by the Lower Court which was tendered by the Respondent but rather relied on them to award title to the Respondent when he failed to establish the vendor’s root of title.

All in all, The learned Appellant’s Counsel rehearse most of their submissions in Issue Number three (3) in their Reply which I have set out extensively above and need not dissipate any further energy in this regard. The Appellant urged the Court to allow the Appeal and grant their reliefs sought. After a careful consideration of the Issues for Determination formulated by the respective parties, I am incline to adopt the Issues as set out by the Learned Counsel for the Appellant in determining this Appeal one way or the other as it meets the justice of the case.

RESOLUTION OF ISSUES:
RESOLUTION OF ISSUE NUMBER ONE (1):
From the argument of the Learned Counsel for the Appellant, it is indubitable that the crux of the contention of the Appellant is heavily centered on the purported lack of proof by the Respondent in respect of his title to the disputed land. Be that as it is, this Court is however not a Court of trial or first instance unlike the Lower Court which is by law saddled with the onerous task of seeing and hearing the witnesses of parties, watch the demeanors of witnesses and evaluating the evidence adduced before reaching a decision one way or the other. As an Appellate Court, the law forbids us from substituting our views in any Appeal in place of the findings of the Lower Court who had the rare privilege of hearing; watching the demeanors of witnesses and evaluating evidence adduced before entering a judgment which in some worth are mostly subject of Appeal especially where indeed it is found that the decision is not perverse and no miscarriage of justice was occasioned in the decision of the Lower Court. However, where it is found on Appeal that the Trial Court was in error in the course of evaluating the

evidence adduced by parties which led to a perverse decision and a miscarriage of justice occasioned, the Court is therefore empowered by law to interfere by evaluating the evidence adduced by parties at the Lower Court from the Record of Appeal placed before it with the sole aim of reversing the perverse decision where it is being found to be so. See SEAVIEW INVESTMENTS LTD. v. MR. TOYIN MUNIS & Ors. (1991) 6 NWLR (Pt. 195) 73 Para. 17; LT. COL. MRS R. A. F. FINNIH v. J.O IMADE (1992) LPELR-1277 (SC); FASHANU v. ADEKOYA (1974) 1 ALL NLR (Pt. 1) 35; FATOYINBO & Ors. v WILLIAM & Ors. (1956) 1 F.S.C 87.

same in titling the scale of justice in favour of the parties depending on their respective claim or defence. Furthermore, I strongly agree with the submissions of the respective Learned Counsel that the law is firmly settled in a host of judicial authorities that a plaintiff or defendant/Counter-Claimant can only prove his title over a land through any of the five (5) ways to wit: “1. By traditional history or evidence 2. By Production of document of title which must be duly authenticated and executed 3. By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of a true ownership 4. By acts of possession and enjoyment 5. By 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 owner of the land in dispute.” See. IDUNDUN v. OKUMAGBA (supra); PIARO v. TENALO (supra); AMAJIDEOGU v. ONONAKU (1988) 2 MWLR (Pt. 78) 614; IREJU NWOKIDU & Ors. v MARK OKANU & Anor. (2010) 1 SCNJ 167.

Applying the above stated positions of the law to the instant case, it goes without controversy and/ or

argument that the Appellant and the Respondent who were Defendant/Counter-Claimant and Plaintiff/defendant respectively; at the Lower Court heavily premised their respective title through production of avalanche of documents from their respective resources (Vendors). whereas the Appellant derived his title from one Mr. Godfrey Amamasi via a Deed of Assignment dated 27th day of July 1992 (Exhibit 14) executed by the duo and the Appellant took steps to register the said Deed via an application letter dated 2nd September, 1992 (Exhibit 13). The said Mr. Godfrey Amamasi (Appellant’s Vendor) was issued a Local Government Certificate of Occupancy (Exhibit 6) endorsed by the Makurdi Government Authority on 11/7/1984 over the disputed land. The Appellant’s vendor was issued Consent to Assign Right of Occupancy sequel to his application dated 18th October, 1989 (Exhibit 14). On the part of the Respondent, his title is derived from a Deed of Assignment dated 1st day of June, 2002 between himself and one Hajia Guba (Vendor) (Exhibit 1). The Respondent’s Vendor was issued a State Certificate of Occupancy dated 2nd September, 1997 but took effect from 4th

day of July, 1992 which was registered as No. 189 at page 189 in Volume xiv of the Lands Registry Makurdi (Exhibit 2). The said Respondent’s vendor was issued a Revalidation of Certificate of Occupancy in respect of BN 9657 (the disputed land) on 9/01/06 (Exhibit 3).

The very question that comes to mind at this juncture is which of the respective title documents held by the respective vendors of the parties on Appeal emanated from the appropriate tier of government and/or authority in the State having control over the disputed land. In other words, which of the authorities in Benue State had control over the disputed land? On a careful perusal of the Respondent’s Pleadings and PW1’s written depositions at pages 2- 5 of the Record of Appeal, it is crystal clear that there was no facts or evidence on record as to how the Respondents came into the land before Exhibits 2 & 3 respectively, were issued in their favour. Worse still, the attempt by Respondent’s witness (PW2) to narrate how his parent came into the land via his written deposition at page 6 of the Record of Appeal went into a no issue as there was no pleading by the

Respondent to support that evidence. Also, the said PW2 was neither a party nor a witness to the transaction between the Respondent and Hajia Guba (vendor). On the strength of the foregoing, it is my considered view that the submission of the Learned Counsel for the Appellant that the Respondent failed woefully to establish the title of his vendor by cogent and concrete evidence cannot be overlooked and/or ignored. The evidence that the husband of the Respondent’s vendor (Alhaji Abdullahi Asenya) had being in possession(farming) thirty-seven years prior to when the Government created a layout cannot be supported by any pleading and the law is firmly settled that evidence not supported by facts(pleadings) goes to no issue and no probative value can be attached thereat. See YAHAYA v. DANKWANBO (2016) 7 NWLR (Pt.1511) 288; EMERHOR v. OKOWA (2016) 1 NWLR (Pt. 1522) 1 SC; VANDERPUYE v. GBADEBO (supra); NSIRIM v. NSIRIM (supra).

Furthermore, there is no evidence led by the Respondent in challenging the Appellant’s position and/or assertion rebutting the fact that the land in dispute was in 1984 under the Makurdi Local Government Authority who issued

the said Exhibit 6 on the Appellant’ vendor; that Appellant commence the process of conversion of his Local Government ‘C’ of ‘O’ (Exhibit 6) into a Benue State Certificate of Occupancy by opening a file at the Ministry of Lands and Survey with the payment of the requisite fees and payment of Ground rent from 1993- 2010 in respect of BNA 10865 (Exhibit 8). I am of the considered view that even though the area where the land in dispute is situate was in 1992 when Exhibit 2 was issued to the Respondent’s vendor was later an urban area which by operation of the Land Use Act 1978 is under the control of the State Government which has the singular authority to issue a Certificate of Occupancy to any beneficiary, this exercise of power by the State Government cannot extinguished the already existed and/or vested interest on the Appellant’s vendor which was issued to him by the authority in-charge as at 1984. More so, the Appellant had taken steps as at 24/9/1992 via Exhibit 8 in converting the Local Government Certificate of Occupancy into State Certificate of Occupancy. Assuming but without conceding that the

Respondent’s vendor acquired the land in dispute via Exhibit 2 & 3 in 1992 and 2006 respectively, I do not see how the purported title would supersede the interest acquired by the Appellant’s vendor as far back as 1984. In other words, assuming but without not conceding that both vendors of the parties acquired an interest on the disputed land, the equitable aphorism that “where two equities meet, the first in time prevails”; finds greater persuasion in favour of the Appellant’s Vendor.

Therefore, it is my candid view that the submissions of the Appellant’s Learned Counsel that the Appellant failed to prove the title of his Vendor hence his purported interest over the disputed land; cannot be watered down by any logic by the Respondent having carefully considered the underlying issue in controversy. As rightly submitted by Appellant’s Learned Counsel, the law is settled that the mere tendering of title documents and/or instruments to land does not automatically prove that the land therein purportedly is conveyed, granted or transferred by such Instruments and the property or land becomes that of the grantee,

the Respondent had the onerous task of satisfying the Court by concrete and verifiable evidence as to his root of title; nothing less is expected. The authorities of ADEOLA v. ISHOLA (supra); OLUKOYA v. ASHIRU (supra) BELLO v. SANDA (supra) cited in the Appellant’s Brief of Argument are very instructive in this regard and are accordingly adopted to support the foregoing.

In the light of the contentions raised by the Appellant as to the Respondent’s Sale of Land Agreement (Exhibit 1) which did not complied with the Provision of the Land Registration Law Cap 88 Law of Benue State 2004 having not been registered; that the said document (Exhibit 1) was not properly executed having not clearly shown who signed the document as vendor and purchaser; that the transaction between the Respondent and his Vendor was void having not complied with Section 22(1) of the Land Use Act, 1978 for failure to seek and obtained the Governor’s Consent before or after the transaction, are collegiately in my considered view, contentions that are now more in the realm of an academic exercise and I need not dissipate any valuable time going into the jurisprudence

of the contentions raised; reasons being that from the beginning or onset, the Appellant and by extension his vendor(Hajia Guba) had no valid title in the eyes of the law over the disputed land and having failed to proof otherwise from the evidence led in support, that became a doom to his claim. The Learned Trial Judge was indeed in error when he was more interest in attaching probative value to mere documents tendered by the Respondent without considering that the Respondent failed in his task of proving the root of his title on the balance of probability.

On the whole, I totally agree with Appellant on this issue and the submissions herein articulated as same is hereby adopted to the extent that the burden of proof must be discharged by the Respondent satisfactorily for the declaration of title to be made in his favour and cannot not hide under the pretence of taking advantage of the weakness of the defence to achieve his aim although I am not unmindful that the law allows a Plaintiff to take advantage of the weakness of the defence but certainly that can never be the case of the Respondent in this circumstance. For the reason and fuller reasons herein

above stated, it is my considered view that Issue Number 1 is resolved in favour of the Appellant against the Respondent.

RESOLUTION OF ISSUE NUMBER TWO (2):
There is no doubt that the Appellant at the Lower Court pleaded facts in his Statement of Defence/Counter-Claim in Paragraph 17, 18, 19 and 20 which can be gleaned at Page 122 of the Record of Appeal. At the above referred paragraphs, the Appellant narrated the incidence that took place before the Respondent Vendor’s husband (Alhaji Abdullahi Asenya) was charged before the Magistrate Court 1, Makurdi for criminal trespass over the disputed land. The Record of Proceedings and Judgment of the Trial Magistrate Court was tendered and marked Exhibit 16. It is therefore not out of place to state that it was the outcome of the trial at the Magistrate Court that gave rise to the suit at the Lower Court.
However, from the facts and evidence adduced by the Appellant on record, it is clear to me that the intent of the said pleading by the Appellant referencing the trial at the Magistrate Court against one Alhaji Abdullahi Asenya who was the purported owner of the disputed land before it was

purportedly divested to the Respondent’s vendor (Hajia Guba) was only to show that such legal proceeding was taken up against the named person. It is therefore pertinent at this juncture to interrogate whether the Lower Court ought to attach any probative value to the said Exhibit 16 in its judgment as he did at pages 196-197 of the Record of Appeal vis-a-vis the issues joined by the parties in the suit. Be that as it is, it is indubitable that parties at the Lower Court were contesting title over the disputed land and the Appellant raised a fundamental issue of previous criminal proceedings against the person from whom the Respondent’s acclaimed title flow from.
In the light of the foregoing, let me at this point put the record straight that the admission of the Record of Proceeding and Judgment of the Magistrate Court (Exhibit 16) which was in respect of a criminal trial by the Lower Court was wrong in law being that the two suits by their nature are not compatible even though issues were joined by the parties at the Lower Court. The Supreme Court had in a host of decisions held that admission of record of proceedings/judgment of criminal

proceedings in a civil trial or proceeding was wrong. Such document was certainly inadmissible in any event. In other words, record of proceedings/judgment in criminal proceedings, should not be admitted in evidence in a civil proceeding. See ABUBAKAR & Anor. v JOSEPH & Anor. (2008) LPELR-48 (SC); OYEWOLE v. KELANI (1948) 12 WACA 327; HOLLINGTON v. NEWTHORN & CO. LTD (supra); NWACHUKWU v. EGBUCHU (1990) 3 NWLR (Pt. 139) 435 at 44 CA.
In the light of the foregoing, even though issues were joined by parties on the issue of previous criminal trial of trespass over the disputed land, I am of the considered view that the lower Court can in the circumstance even though wrongly admitted the said Exhibit 16, ought to in the circumstance in exercise of its power; reckon with the said document just for the purpose of it been shown that there was an earlier proceeding between the husband of the Respondent’s vendor and the Appellant’s vendor but not to place and/or attach any probative value on the testimonies of witnesses and findings of the Learned Magistrate Court as contained in the said Exhibit 16 as the basis for his later judgment in

deciding who had title over the disputed land since from the onset the Magistrate Court lacked the jurisdiction to entertain issues bothering on title over land and worse too, it was a criminal trial even though the later suit at the Lower Court was in furtherance of the contention over title to the disputed land. Assuming but without conceding that the Learned Trial Judge was right, such reference to previous proceedings and judgment of Magistrate Court 1, Makurdi cannot be done without taking into context the relevant provisions of the Evidence Act 2011 which governs evidence generally in any legal proceeding . In that light, the provisions of Section 39, 46, 59 – 62 of the Evidence Act, 2011 is very instructive and must be brought to bear in the circumstance especially Section 62 of the said Act which provides thus:
“62. Judgment, orders and decrees other than those mentioned in Section 60 are admissible unless existence of such judgment, Order or Decree is a fact in issue, or is admissible under some other provision of this or any other Act.”
In DUROSARO v. AYORINDE (2005) LPELR-967 (SC); the Supreme Court held thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“…it is no longer disputable having regard to the authorities cited above that a Court should not place reliance on a conviction recorded in another Court to come to its conclusion in a civil trial between parties other than those convicted as a result of a criminal trial. It is safer in the interest of justice that the Court should come to a decision on the facts placed before it, without regard to the result of other proceedings before another Tribunal.
The law is that evidence of a witness taken in an earlier proceedings is not relevant in a later trial except for the purpose of discrediting such a witness in cross-examination and for that purpose only, it is not permissible to treat evidence in previous proceeding as one of truth….” per Ejiwunmi, JSC (pages 10-11, paragraphs F-A).
See ALADE v. ABORISHADE (1960) NLR P. 398 SC; ASUQUO & Anor. v EKANEM & Ors. (1962) 2 SCNLR P. 364.
In the light of the foregoing, I am of the considered view that the Learned Trial Judge was in error in making reference to the said Exhibit 16 in his Judgment as the basis for his findings as to who between the Appellant and

Respondent owned the Land in dispute without considering and evaluating the evidence adduced by the parties before the Lower Court. For the umpteenth time, I have stated in this judgment that though issues were joined by the parties as it relates to the said Exhibit 16 but however, the said document was legally inadmissible and no probative value ought be attached on the document in deciding title over the disputed land but rather, the best and most appropriate thing the Learned Trial Judge ought to have done in the circumstance was only to take cognizance of the fact that there was an earlier criminal trial over the disputed land and nothing more rather than proceeding to determine the ownership of the disputed land based on the record and Judgment of the Magistrate Court 1, Makurdi (Exhibit 16) tendered by the Appellant. This unfortunate step taken by the Learned Trial Judge indeed was a perversion of the law and occasioned a miscarriage of justice.
On the whole, I am of the firm view that submissions of the Learned Counsel for the Appellant on this issue is germane and is accordingly sustained, reasons being that the said Exhibit 16 was legally

inadmissible for the basis of deciding title over the disputed land contrary to the evidence adduced before the Lower Court as to who the true owner of the land in dispute. More so, the proceedings at the Magistrate Court are by its nature at variance with what transpired before the Lower Court. This issue Number Two (2) is resolved in favour of the Appellant but against the Respondent.

RESOLUTION OF ISSUE THREE (3):
In a decided case by the Apex Court inC.P.C. & Anor. v HON. EMMANUEL DAVID OMBUGADU & Anor (2013) LPELR – 21007 (SC); which I find apt and instructive as I delve into resolving this issue, the Court held quite succinctly thus:-
“The law is well settled that evaluation of evidence is primarily the function of the trial Court…. However, where the Trial Court fails to evaluate such evidence properly or at all, as happened in the present case, the Appellate Court can intervene and itself re-evaluate the evidence particularly where the bulk of the evidence is documentary as was the situation in this case…” per Mohammed, JSC (page 72, paragraphs C-E).
SeeIWUOHA v. NIPOST LTD (2003) 8 NWLR ( Pt. 82)

308 at 337; FIRST BANK (Nig.) PLC v. CHIEF CHARLES ORAKWUE AZIFUAKU (2016) LPELR-40173 (CA).

Relying on the above cited Authorities and a host of others on this vexed issue of an Appellate Court interfering in the findings of the Lower Courts as it relates to evaluation of evidence adduced by the parties at the Court below, it is therefore not surprising that the contention of the Appellant in this issue under discourse is premised on the inability of the Respondent who ought to by law succeed on the strength of his case in proving his title over the disputed land; failed to led cogent and concrete evidence enough to disproof the Appellant’s claim over the said land thereby impugning on the authenticity of the documents of which the Appellant relied on in challenging their claim and in proof of his Counter-Claim.

From the pleadings of the Appellant in Paragraphs 3 – 9 at page 2 of the Record, he stated thus:-
“3. Sometimes in 2002, the Plaintiff purchase a land from Hajia Guba by an agreement dated 01/06/2002. The said agreement is hereby pleaded.
4. The said land is located at Ankpa Ward Makurdi and covered by Certificate of Occupancy

No. BN 9657 and a Revalidation Certificate/Right of Occupancy on the same No. BN 9657 in the name of the Plaintiff’s vendor. Both documents are hereby pleaded.
5. The said Property Measuring 30.55 by 30.66sq. meters was demised by the Benue State Government to the Plaintiff’s vendor on the 4th of July, 1992.
6. In 2010, the Benue State Government in a bid to create an access road within the area where the land is located cut off some portion of the land.
7. The Plaintiff after the creation of the access road went onto the property and dug a well thereon and further started erecting a dwarf fence on the land.
8. On or about the period the Plaintiff was erecting the dwarf fence that the Defendant approached him waving a Certificate of Occupancy granted by the Makurdi Local Government on the same property.
9. The Plaintiff reported this confrontation to his vendor who assured him of the validity of her title to the land.”

From the above reproduced pleadings, it appears and indeed obvious that the Respondent clearly put on the spot his vendor (Hajia Guba) the purported owner of the land in disputed. I have clearly

perused the Record before this Court and it is quite surprising that the Respondent apart from mentioning the said vendor in Paragraph 3 reproduced above, there was no further reference as the steps taken by his vendor in validating her purported title juxtaposing the events and/or incidents which the Respondent pleaded later ensued from his paragraphs 10 – 16 of his Statement of Claim at Page 2 & 3 of the Record of Appeal. To make matters worse as I have found, neither the Witnesses for the Respondent (PW 1 & 2) gave any evidence as to the how the Respondent’ vendor acquired the land, the where about of the vendor nor the purported Husband of the Vendor who was claimed to have been on the land in dispute for over twenty (20) years before he was issued the Exhibits 2 & 3 respectively on the said land.

Furthermore, I also found that the attempt by the Respondent to call PW2 (Umar Abdullahi Asanyi) who testified as the son to Alhaji Abdullahi Asanyi (Husband to the Respondent’s Vendor) did not help his case in either way because neither from Witness’s Depositions at page 6 of the Record of Appeal nor his testimonies at the

Lower Court at page 169-170 of the Record of Appeal; fill up the very salient gaps as to the root of title of the Respondent being that by his position (PW2) in the suit; he was the proxy of the Respondent’s vendor and he had the onerous task as would have been placed on the vendor(Hajia Guba) to satisfactorily proof to the Court as to her purported title over the land in dispute which unfortunately he woefully failed to discharge as his testimony was a product of hearsay; worse still having also not being a party to the execution of Exhibit 1 between the Respondent and the Hajia Guba. Assuming the gaps were filed as it pertains to the root of title of the Respondent then I think this Appeal would not have gone the other way rather than this Court affirming the decision of the Lower Court.

It is on the strength of the foregoing, that I make no hesitation in holding the view that the burden of proof placed on the Respondent in a declaration of title proceedings was not discharged thereby shifting the onus on the Appellant to disprove same. In any event, I am satisfied on a consideration of the Record before this Court that the Appellant did not only

challenged the Respondent’s title over the land but also proof his case as being the more authentic owner of the disputed land via his Counter-Claim.

Furthermore, it is my considered finding that there was no evidence on record by the Respondent challenging and/or impugning on the Appellant’s root of title which is the Local Government Certificate of Occupancy issued to the Appellant by the Makurdi Local Government Authority in 1984. Therefore, I am in solemn agreement with Learned Counsel for the Appellant that since the Respondent failed to prove by evidence the where about of the vendor; how she acquired the said land and also how the purported root of title (Alhaji Abdullahi Asanyi) acquired the land; the Respondent were indeed caught up by the express provision of the Section 167 (d) of the Evidence Act 2011 and same is invoke in favour of the Appellant vis-a-vis the evidence of the Respondent’s witness(PW2) being a hearsay evidence and the law is trite that hearsay has no probative value especially in declaration of title matter where no proper foundation is laid. See BUHARI & Anor. v OBASANJO & Ors. (2005) 9 SCN 1;

SEISMOGRAPH SERVICES (NIG.) LTD v. CHIEF KEKE OGBENEGWEKE EYUAFE (1976) 9-10 SC 86; DR. GARBA SHEHU MATAZU v. ISAH USMAN M. (2014) LPELR-23071 (CA); EDWARD NKWEGU OKEREKE v. NWEZE DAVID UMAHI & Ors. (2016) LPELR-40035 (SC).

In the light of the foregoing, it is therefore not out of place to re-emphasis the point that the Learned Trial Judge ought not to have based his conclusion as to the title of the Respondent over the disputed land on the grounds that the Respondent through his vendor had being on the land before the Appellant’s vendor showed up when indeed the issue of the purported title of the Respondent’s vendor cannot be substantiated other than the paraded documents (Exhibits 2 & 3 respectively). I strongly hold the view that the execution of Exhibit 1 between the Respondent and one Hajia Guba was a ruse and nullity as there is no evidence on record that can displaced the Local Government Certificate of Occupancy issued to the Appellant’s Vendor as far back as 1984 because the later issuance of the Benue State Government Certificate of Occupancy in 1992 and the Revalidation of the ‘C’ of ‘O’ in

2006 (Exhibits 2 & 3 respectively) to the Respondent’s vendor cannot displaced the already vested title of the Appellant’s vendor when as at 1984 the land in question was under the control and authority of the Makurdi Local Government Authority. I am more convinced by the evidence of the Appellant that he had even taken steps in converting the said Exhibit 6 issued by the Makurdi Local Government Authority into the Benue State Certificate Of Occupancy since the area where the disputed land is situate later became an urban area.

The issuance of the said Exhibits 2 & 3 was done in grave mistaken and/or error apparently under the deception of the Respondent’s vendor and such cannot be encouraged or be allowed after carefully considering all the documents and evidence on Record. The Respondent had no title over the disputed land and cannot by any stretch of imagination or manipulation transfer and/or alienate any title to the Respondent or any other person whatsoever. The aphorism; “You cannot give what you don’t have” appropriately suit the unfortunate fate of the Respondent and there is nothing one can do.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On the whole, this Issue Number three (3) is resolved in favour of the Appellant and against the Respondent. Consequently, having resolved all the issues for determination in this Appeal, it is my considered view that this Appeal is meritorious and is hereby succeeds. The Judgment of the High Court of Benue State in Suit No. MHC/182/2014 delivered by Hon Justice S.O. Itodo on the 26th day of February, 2016 in favour of the Plaintiff/Respondent as per the Reliefs sought in his Statement of Claim is hereby set aside and in its stead Judgment is entered in favour of the Appellant as per his Counter-Claim.

Consequently, it is hereby ordered that the Benue State Government shall issue a State Certificate of Occupancy in respect of the disputed land marked BNA 10865 in favour of the Appellant upon the Appellant’s payment of all requisite fees in line with the State’s Laws on Land. The Appellant shall pay to the Respondent all monies expended on any improvements over the disputed land and the Respondent upon such payment and receipt of such compensation, shall forthwith vacate and render possession thereof to the Appellant. Parties shall bear

their respective costs.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Ignatius Igwe Agube, JCA, in which this appeal has been allowed. The resolution of the issues arising for determination have been fully considered and resolved, and I adopt same as mine.

It is the well-established position of the law that any person claiming declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju v. Ezuku (1994) 8 NWLR (Pt. 364) 535 S.C: Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. Judicially established methods of proving title to land have been well articulated with a foremost authority found in the case of Idundun v. Okumagba (1976) 9-10 SC 227 wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title

documents.
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT 786) 195. In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989) LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment. In this case, the burden of proof laid on the Respondent was not discharged. The Appellant was entitled to judgment on his Counter-claim.

I therefore also allow this appeal and abide by the orders made in the lead Judgment.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Agube JCA. I am in agreement with my lord in his reasoning and conclusion which I adopt as mine in allowing the appeal.

Appearances:

Chief/Dr. (Mrs.) C. Mbafan-Ekpendu, with her, O.R. Aba, Esq. and T. Iho, Esq. For Appellant(s)

R.C. Ndefo, Esq. For Respondent(s)