EJIRO v. OCHAI & ORS (2021)

EJIRO v. OCHAI & ORS

(2021)LCN/15146(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/J/63/2009

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

ENGR. ALBERT EJIRO – APPELLANT/ CROSS RESPONDENT APPELANT(S)

And

1. ANDREW DIO OCHAI – RESPONDENT/ CROSS RESPONDENT 2. MOREINO DAVID OGBU – RESPONDENT/ CROSS APPELLANT 3. INNOCENT OCHE OGBU – RESPONDENT/ CROSS RESPONDENT RESPONDENT(S)

RATIO

WHETHER A PRELIMINARY OBJECTION MUST BE DETERMINED BEFORE TAKING A STEP IN THE APPEAL

It is trite that a preliminary objection should be determined before taking a step in the appeal, this is because a preliminary objection seeks to terminate the appeal in limine, see what the learned jurist, KEKERE-EKUN, JSC in the case of KLM ROYAL DUTCH AIRLINES V ALOMA (2017) LPELR- 42588(SC) said thus: “The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.” PER YARGATA BYENCHIT NIMPAR, J.C.A.

POSITION OF THE LAW REGARDING CIRCUMSTANCES FROM WHICH A GROUND OF APPEAL CAN ARISE

A ground of appeal is competent when it challenges the decision of a Court, it is clear that a ground of appeal must attack the judgment appealed against, particularly the ratio but a valid ground of appeal can arise from a number of circumstances as held in the case of AKPAN V. BOB (2010) LPELR- 376(SC) thus: “Although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd. v. D.A. Migliore and Ors. in re-Miss C. Ogundare (1990) ANLR 142 at 148; FMB v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following: (a) from the text of the decision appealed against (ipsissima verba) b) from the procedure under which the claim was initiated (c) from the procedure under which the decision was rendered or (d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates. (e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of. The ideal thing is to have a pronouncement from the Court from which the appeal emanates. But, where that Court fails to make a pronouncement such as where motions or objections filed before it are still pending, where it ought to have made one, that will give rise to a ground of appeal. In other situations, the Court from which the appeal emanates may not have to make a pronouncement as it may not have had the opportunity to do so for instance where a judgment was delivered outside the 90 days period in contravention of Section 258(1) of the 1979 Constitution, but now Section 294 of the 1999 Constitution, if non-delivery within the time limit can cause a miscarriage of justice. Equally, in a case where a judge delivers his judgment after having fully known that he has ceased to be a judicial officer or that he has been elevated to a higher Court. This may furnish a ground of appeal. Or still, where without genuine cause, proceedings or judgment were conducted or delivered in chambers. See: Ifezue v. Mbadugha (1984) All NLR 256; Ogbunyinya v. Okudo (1979) 6 – 9 SC 24. In any of the above situations, a ground of appeal may be validly filed as of right or by leave of the Court, as the case may demand.” Per MUHAMMAD, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

DUTY OF THE CLAIMANT TO PROVE THE IDENTITY OF THE LAND HE CLAIMS WITH CERTAINTY

It is settled that for a declaration to title to land, the Claimant is duty bound to identify and prove the identity of the land he claims with certainty. See OTANMA V. YOUDUBAGHA (2006) LPELR-2821 (SC) where the apex Court held that: “The law is well settled that in an action for declaration of title to land, the onus is on the plaintiff to establish with certainty, the identity of the land in dispute to which his claim relates. In a claim for declaration of title to land, the first and foremost duty on the claimant is to describe the land in dispute with such reasonable degree of certainty and precision that its identity will no longer be in doubt. In other words, the land must be identified positively and without any ambiguity. See Baruwa v. Ogunshola (1938) 4 WACA 159; Udofia v. Afia (1940) 6 WACA 216; Epi v. Aigbedion (1972) 1 All NLR (Pt. 2) 370; Awote v. Owodunni (No. 2) (1987) 2 NWLR (Pt. 57) 366; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192. Per MUSDAPHER, J.S.C See also the case of BELLO V. FAYOSE & ORS (1999) LPELR-766(SC); OFFODILE V. OFFODILE & ORS (2019) LPELR-47851(SC) and ADIO V. KOLO & ANOR (2018) LPELR-45963(CA). PER YARGATA BYENCHIT NIMPAR, J.C.A.

CIRCUMSTANCES WHERE THE IDENTITY OF LAND IN DISPUTE WOULD BE AN ISSUE

Circumstances where the identity of land in dispute would be an issue is in a case arising not from the evidence of parties but from the pleadings of the Defendants, see the holding of the apex Court in the case of GBADAMOSI V DAIRO (2007) LPELR-1315 (SC) thus: “It is also now settled law that requires no citation of any authority, that the identity of land in a land dispute will only be in issue if and only if the defendant in his statement of defence makes it one. If he disputes specifically either the area or the location or the features shown in the plaintiff’s plan, then the identity of the land becomes an issue to be tried.” Per MUSDAPHER, J.S.C.PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER ISSUES NOT RAISED IN THE PLEADINGS CAN BE RAISED BY WAY OF EVIDENCE

Issues are fought on pleadings and not evidence, pleadings not supported by evidence are deemed abandoned while evidence not founded or at variance with pleadings go to no issue, see NJOKU & ORS V. EME & ORS (1973) LPELR-2039(SC) where the Supreme Court held thus: “It is trite law that parties are bound by their pleadings and that any evidence which is at variance with the averment in the pleadings goes to no issue and should be disregarded by the Court. It is enough to refer to a recent decision of this Court which lays down in detail, the same principle of law: Aniemeka Emegokwue v. James Okadigbo SC. 302/1971, delivered on 19th April, 1973. “The reason for this rigid rule of pleading and of the evidence has been clearly stated by this Court in George and Ors v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at p. 77 as follows: “The fairness of a trial can be tested by the maxim audi alterem partem. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues; but the cardinal point is the avoidance of surprise…”Per IBEKWE, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

POSITION OF THE LAW REGARDING THE ADMISSIBILITY OF AN UNREGISTERED INSTRUMENT

… the law is well settled that an unregistered instrument is not admissible to prove title but is certainly admissible to prove payment of money and coupled with possession may give right to an equitable interest enforceable by specific performance, see ANYABUNSI V UGWUNZE (1995) LPLER-503(SC); NSIEGBE & ANOR V MGBEMENA & ANOR (2007) LPER-2065(SC) and recently in the case of MOHAMMED V FARMERS SUPPLY CO. (KDS) LTD (2019) LPELR-49388(SC) where ABBA-AJI, JSC held: “It is trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the lessor, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase of money. See Per KAZEEM, JSC in REGISTERED TRUSTEES OF THE APOSTOLIC FAITH MISSION & ANOR V. JAMES & ANOR (1987) LPELR-2946(SC). The Respondent cannot feign that it is a bonafide purchaser for value without notice!” The reiterated position is that a registrable instrument that has not been registered is admissible to prove equitable interest. Furthermore, admissibility is determined primarily by relevancy and pleading. PER YARGATA BYENCHIT NIMPAR, J.C.A.

ATTITUDE OF THE APPELLATE COURT REGARDING INTERFERENCE WITH THE QUANTUM OF DAMAGES AWARDED BY THE TRIAL COURT

…it is purely at the discretion of the trial Judge and unless it is shown that it breached certain guidelines, an Appellate Court shall not interfere, see OYENEYIN & ANOR V AKINKUGBE & ANOR (2010) LPELR-2875(SC) where the apex Court held thusly: “Generally, the trial Court has discretion as to the quantum of damages it would award in a claim of damages for trespass. The assessment does not depend on any legal rules – but the discretion of Court is however limited by usual caution or prudence and remoteness of damage when considering its award of damages. An appellate Court will not interfere with an award of damages by a trial Court unless in situations which include (a) Where the Court acted under wrong principles of law (b) Where the Court acted in disregard of applicable principles of law (c) Where the Court acted in misapprehension of facts (d) Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award (e) Where injustice will result if the appellate Court does not act (f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages. U.B.N. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) pg. 558, Solanke v. Ajibola (1969) 1 NMLR pg. 45, Ziks Press Ltd. v. Alvan Ikoku (1951) 13 WACA 188, Thompson v. Adefope (1961) 1 ANLR Pg. 322, ACB Ltd v. Apugo (2001) 5 NWLR (pt.707) pg. 653.” Per ADEKEYE, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

AWARD OF DAMAGES IN AN ACTION FOR TRESPASS

Generally, the law is that in an action for trespass, a successful Plaintiff will be entitled to an award of nominal damages where no actual loss or damage is caused, where an actual loss or damage has however, resulted from the trespass, the Plaintiff is entitled to recover an amount of damages sufficient to compensate for the loss he has suffered, see UMUNNA VS. OKWURAIWE (1978) 6-7 SC 1. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHAT IS AN ADMISSION

Admission was defined in the case of OMISORE & ANOR V AREGBESOLA & ORS (2015) LPELR-24803(SC) as follows: “An admission has been defined also as “a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claim in an action”. See Vockie v. General Motors Corp, Chevrolet Division D.C. Pa. 66 FRD 57, 60 (Black Dictionary, Sixth Edition of page 47) per Fabiyi, JSC (P. 25). See also Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 which defines admission further as:- “a concession or voluntary acknowledgment made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of the adversary;” Per OGUNBIYI ,J.S.C PER YARGATA BYENCHIT NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the High Court of Benue State sitting in Makurdi delivered by HON. JUSTICE J. S. IKYEGH on the 24th February, 2009 (as he then was) wherein the lower Court entered judgment in favour of the 1st Respondent with damages of Three Hundred Thousand Naira (N300,000.00). The Appellant dissatisfied with the judgment, filed an Amended Notice of Appeal dated 30th September, 2015 setting out 8 grounds of Appeal.

Facts leading to this appeal are straight forward and can be summarized in the following way. I shall do so shortly. The Plaintiff commenced the action through a writ of summons and claimed as follows:
1. AN ORDER of declaration of title in respect of aforementioned portion of land measuring 100ft X 50ft in his favour.
2. AN ORDER of perpetual injunction restraining the defendants and their agents from further trespassing unto his land.
3. AN ORDER of Court setting aside any purported sale of his land to anybody including members of the late Chief Ogbu’s family.
4. Special damages of One Hundred

Thousand Naira (N100,000) and general damages of N4 Million Naira against the Defendants.

On the other hand, the Defendants filed their defences and the matter went to pretrial on the 27/10/2008 where the Plaintiff’s Counsel tendered the agreement between parties which was admitted as Exhibit A. Exhibits tendered at the trial Court are as follows:
1. EXHIBIT A: Sale Agreement between the 1st Respondent and the 2nd and 3rd Defendants
2. EXHIBIT B2: Agreement between 1st Defendant and Matthew Ogbu
3. EXHIBIT B5-B6: Certificates of Occupancies dated 13/9/2006
4. EXHIBIT B7: Survey Plan
5. EXHIBIT B4: An agreement on how to share the landed property in plot of land Number: BP2489
6. EXHIBIT B8-B9: Building Plan of two plots of land.

The Appellant tendered Exhibits B1-B9 while the 1st Respondent tendered Exhibit A.
The following witnesses testified at the trial:
1. PW1: ANDRE DIO OCHAI
2. PW2: AWODI OCHECHE
3. DW1: ENGINEER ALMBERT CHIMESIE EJIRO
4. DW2: ADAGA SOLOMON SAAONDO
5. DW3: MOREINO DAVID OGBU

Issues were joined in the pleadings and the

matter went to full trial with parties calling witnesses in proof of their respective pleadings. After full consideration the Court below granted the claim, thus the appeal.

The Appellant’s brief settled by CHIEF E. K. ASHIEKAA, SAN is dated 5th day of February, 2021, filed on the 8th February, 2021, but deemed on the 8th day of February, 2021, it distilled 8 issues for determination as follows:
1. Whether upon the pleadings the trial Court was not wrong in holding that the Appellant did not make the identity of the land an issue.
2. Whether the trial Court was not wrong in holding that Exhibit A is not a registrable instrument.
3. Whether the learned Judge was right to have awarded damages in the sum of N300,000.00 for trespass against the Appellant.
4. Whether the learned trial Court was right to hold that the 2nd Defendant conceded the case to the Respondent and used same against the Appellant.
5. Whether the learned trial Judge was right to hold that a case of trespass has in opinion and finding was made out against the Appellant.
6. Whether the trial Court was right in law when failed to adjudicate on issue raised

for determination by counsel and embarked on pick and choose of issue.
7. Whether the learned trial Judge was right in law to hold that the Appellant has not proved his counter claim.
8. Whether the judgment of the trial Court is against the weight of evidence.

The 1st Respondent’s Brief settled by O. N. AYIA, ESQ., filed on the 5th March, 2019 but deemed on the 8th day of February, 2021 and formulated 2 issues for determination thus:
a. Who as between the 1st Respondent herein and Appellant proved his case at the lower Court as required by law to be entitled to judgment?
b. Whether the Honourable trial Court was right in awarding N300,000.00 damages for trespass against Appellant herein.

The 3rd Respondent’s Brief settled by G. I. ENEBELI, ESQ., is dated 24th January, 2020, filed on the 27th January, 2020, but deemed on the 8th day of February, 2021 and he adopted issues for determination formulated by Appellant even though he couched it differently.

Thereafter, the Appellant filed a Reply brief dated 21st September, 2018; filed on the 24th September, 2018 but it was deemed on the 8th February, 2021.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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PRELIMINARY OBJECTION:
The 1st Respondent also filed an Amended Notice of Preliminary Objection dated 5th March, 2019 and filed 5th March, 2019, it set out a ground of objection which states thus:
GROUND UPON WHICH THE OBJECTION IS RAISED
The Appellant’s brief of argument is incompetent.
PARTICULARS OF OBJECTION
1. The Appellant filed eight grounds of appeal in his Notice of appeal.
2. The Appellant did not formulate issue for consideration in his brief.
3. The Appellant has argued the eight grounds of appeal in his brief.
Relief sought was an order striking out and or discountenance Appellant’s brief.

LEGAL ARGUMENT
The 1st Respondent argued that the Appellant’s brief is anchored on grounds of appeal rather than issues for determination. It is trite that a ground of appeal must be based on the ratio of a judgment appealed against and not obiter dictum, however, the fact that a ground of appeal is the sole determinant of an appeal does not qualify grounds to be substituted for issues and argued as such, rather than formulating issues for determination, relied on AGBABIAKA V. F.B.N. PLC (2006) ALL

FWLR (PT. 326) 253 and AIGBOBAHI V. AIFUWA (2006) ALL FWLR (PT. 303) 203. The 1st Respondent urged the Court to uphold his argument on this ground of objection and discountenance the submission in Appellant’s brief of argument as it is against the general practice of Rules of this Honourable Court.

APPELLANT’S RESPONSE TO THE ARGUMENT
The Appellant submits that the 1st Respondent’s argument is misconceived and misinterpreted the decision in AGBABIAKA V. F.B.N. PLC (Supra) and AIGBOBAHI V. AIFUWA (Supra) where the Courts frown at repetition of the grounds of appeal from which issues are supposed to have been formulated but also restated the power of Court of Appeal to formulate issues from the grounds of appeal in order to determine the real complaint against the decision of the lower Court. According to the Appellant, the 1st Respondent did not attack the issues formulated rather, his objection is that the Appellant has formulated issues from the same grounds of appeal. It is settled that a ground of appeal cannot give rise to more than one issue for determination as held in AGU V. IKEWIBE (1991) NWLR (PT. 180) 383; DUNG V. GYANG

(1994) NWLR (PT. 362) 315 and OPAWUMI V. ONI (2011) LPELR 14106. The Appellant reproduced the issues formulated to submitted that none of the grounds has given rise to more than one issue and consequently cannot be attacked on grounds of proliferation. The Appellant urged the Court to discountenance the preliminary objection for being unmeritorious and without substance because the issues formulated by the Appellant were obviously tied to grounds of appeal, even though it was not expressly so stated in the Appellant’s Brief.

RESOLUTION OF PRELIMINARY OBJECTION
It is trite that a preliminary objection should be determined before taking a step in the appeal, this is because a preliminary objection seeks to terminate the appeal in limine, see what the learned jurist, KEKERE-EKUN, JSC in the case of KLM ROYAL DUTCH AIRLINES V ALOMA (2017) LPELR- 42588(SC) said thus:
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could

sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.”

The objection here is against all the grounds that generated the issues for determination. The 1st Respondent in the objection contended that the grounds of appeal was translated into issues and that the grounds did not include quotes from the body of the judgment where the error or misdirection occurred and therefore they arose from obiter dictum and not from the ratio decidendi. The 1st Respondent did not cite any authority that said a ground of appeal is only competent when it incorporates a quotation from the body of the judgment. A ground of appeal is competent when it challenges the decision of a Court, it is

clear that a ground of appeal must attack the judgment appealed against, particularly the ratio but a valid ground of appeal can arise from a number of circumstances as held in the case of AKPAN V. BOB (2010) LPELR- 376(SC) thus:
“Although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd. v. D.A. Migliore and Ors. in re-Miss C. Ogundare (1990) ANLR 142 at 148; FMB v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following: (a) from the text of the decision appealed against (ipsissima verba) b) from the procedure under which the claim was initiated (c) from the procedure under which the decision was rendered or (d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates. (e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in

overdoing the act complained of. The ideal thing is to have a pronouncement from the Court from which the appeal emanates. But, where that Court fails to make a pronouncement such as where motions or objections filed before it are still pending, where it ought to have made one, that will give rise to a ground of appeal. In other situations, the Court from which the appeal emanates may not have to make a pronouncement as it may not have had the opportunity to do so for instance where a judgment was delivered outside the 90 days period in contravention of Section 258(1) of the 1979 Constitution, but now Section 294 of the 1999 Constitution, if non-delivery within the time limit can cause a miscarriage of justice. Equally, in a case where a judge delivers his judgment after having fully known that he has ceased to be a judicial officer or that he has been elevated to a higher Court. This may furnish a ground of appeal. Or still, where without genuine cause, proceedings or judgment were conducted or delivered in chambers. See: Ifezue v. Mbadugha (1984) All NLR 256; Ogbunyinya v. Okudo (1979) 6 – 9 SC 24. In any of the above situations, a ground of appeal may be

validly filed as of right or by leave of the Court, as the case may demand.” Per MUHAMMAD, J.S.C.
It is clear from above quoted portion of the judgment that a good ground of appeal can arise from a number of circumstances and not necessarily from the ratio decidendi of the Court below. I have reviewed the grounds of appeal and I find them to be competent complaints against the judgment appealed against and the function of a ground of appeal is to give notice to the opposing party of the complaint against the judgment.

On the issues for determination distilled from the grounds of appeal, I find that they are not a reproduction of the grounds of appeal and therefore not guilty of prolixity. Formulation of the same number of issues as the grounds of appeal may not be commended but it cannot also be said to be a proliferation of issues. There are 8 grounds of appeal and 8 issues for determination, it is therefore not clear what the 1st Respondent is complaining about, because no ground of appeal generated 2 issues for determination. The preliminary objection is unmeritorious and is hereby dismissed. The Court shall proceed to determine the main

appeal.

MAIN APPEAL
ISSUE ONE
The Appellant argued that the 1st Respondent does not know the exact location of the land in dispute, as the 2nd and 3rd Defendants denied showing any specific land to the 1st Respondent by stating that the 1st Respondent has no piece of land in the area of dispute (See Page 14 and 88 of the Records). However, the 1st Respondent claimed 100ft x 50ft of land based on a document duly executed and known as Exhibit A5 (see Page 204 of records). Under cross examination, DW3 averred that “the place we sold to plaintiff is different from the one in dispute”. Exhibit “A” tendered has a vague description of land as it described all the plot of land allocated to the estate of Late Chief M.C. Ogbu (See page 205 of records). The Appellant cited IBIKUNLE PHILIPS & 3 ORS V. AYINLA AKINOLA & 3 ORS (2008) ALL FWLR (PT. 425) 1728 and NETWORK SECURITY LTD V. ALHAJI UMARU DAHIRU & 2 ORS (2008) ALL FWLR (419) 475. The Appellant submits that the 1st Respondent failed to prove the identity of the land and as such cannot be entitled to the relief (1) in his statement of claim. The Appellant urge the

Court to resolve issue one in his favour.

ISSUE TWO
The Appellant argued that the 1st Respondent pleaded the agreement (Exhibit A) between him and the 2nd and 3rd Respondents as evidence of purchase of the land (See p. 3 and 68 of records) which the trial Court relied on it to grant the 1st Respondent his relief even when Counsel to the Appellant raised the issue of admissibility of the said document in his written address. Citing PASTOR J. A. AKINDURO V. ALHAJI IDRIS ALAYA (2007) ALL FWLR 1653, the Appellant submits that Sections 2 and 15 of the Land Instrument (Preparation) Laws of Northern Nigeria applicable to Benue State provides for the class of documents that qualify as registrable documents. Exhibit A which was relied upon by the 1st Respondent was neither stamped nor registered which makes it inadmissible. The Appellant reproduced the trial Court’s conclusion on Exhibit A which the Court stated that “Exhibit A is a document evidencing the contractual relationship between the Respondents and cannot in my view be expected to be registered before it would be admissible in evidence”, this he contended constitute a clear

misdirection and a misunderstanding of the nature of Exhibit “A”. The Appellant cited OGBIMI V. NIGER CONSTRUCTION LTD (2006) ALL FWLR (PT. 317) 390 and Section 15(2) of the Land Instrument (Preparation) Laws of Northern Nigeria applicable to Benue State and urge the Court to set aside the admission of Exhibit A by the lower Court.

The Appellant further argued that the 1st Respondent adduced no evidence before the trial Court which could have based his claim of ownership to the land because the 1st Respondent’s witness gave evidence that he was a witness to the making of Exhibit “A”. The Appellant submits that 2nd Defendant’s witness statement on oath was never adopted before the trial Court because he did not testify. Also the trial Court wrongly held that Exhibit A is not a registrable instrument and also relied on it though being inadmissible evidence to grant the 1st Respondent’s relief 1 of his claim. Therefore, the Appellant urge the Court to resolve issue two in his favour.

ISSUE THREE
The Appellant submits that it is trite that a claim for trespass to land is rooted in exclusive possession,

relied on UGORJI V. FERDINAND ONWU & 6 ORS (1991) 2 NWLR (PT. 178) 177 and AMAKOR V. OBIEFUNA (1974) 3 SC 67. In the instant case, the Appellant tendered Exhibit B5 and B6 before the lower Court, which were not challenged either as to their validity or authenticity. It is settled law that the holder of a Certificate of Occupancy is presumed to have exclusive possession of the portions of land covered by such certificate. Cited SHOGO V. ADEBAYO (2000) 14 NWLR (PT. 686) 121 and MADU V. MADU (2008) ALL FWLR (PT. 414) 1604. The trial Court overlooked the presence and import of Exhibit “B5” and “B6” and testimony of the Appellant and 2nd Respondent under cross examination where they asserted that the land belongs to the Appellant. The Appellant further submits that from the evidence, it is clear that the 1st Respondent was never in possession of the disputed land, and cannot maintain an action in trespass, rather the 1st Respondent was the trespasser as he was the one who intruded into the land and destroyed the Appellant’s fence in pursuit of this self interest against the advice and instruction of his vendors.

The Appellant argued that the award of damages of N300,000.00 to the 1st Respondent for trespass was erroneous. CitedLION BANK PLC & ANOR V. MR. JOSEPH AMAIKOM (2008) ALL FWLR (PT. 417) 85 and CHIEF OLAYIWOLA AFOLABI V. MICHEAL K. OGUNLOWO & 2 ORS (2008) ALL FWLR (PT. 429) 537 and urge the Court to resolve issue three in favour of the Appellant.

ISSUE FOUR
The Appellant reproduced Order 19 Rule 1 of the Benue State High Court (Civil Procedure Rules) 2007 and submits that the 2nd Defendant did file his statement of defence wherein he substantially denied the 1st Respondent’s claim but later filed a motion for concession, admitting the 1st Respondent’s claim but the motion was later struck out. According to the Appellant, such concession by the authority of Order 19 Rule 3 of the Benue State High Court (Civil Procedure Rules) 2007 is only admissible against the 2nd Defendant and not against the Appellant who has joined issues with the 1st Respondent on all material facts and adduced evidence in support thereof at the trial Court. The Appellant submits that such concession is not available for the trial Court to be relied on and the learned trial

Judge was wrong to hold that the 2nd Defendant conceded to the case of the 1st Respondent.

ISSUE FIVE
The Appellant contends that he has a valid and subsisting title which is a Certificate of Occupancy and was before the trial Court as Exhibits B5 and B6, they were never set aside by the trial Court nor were there adverse comments made regarding their worth. The Appellant submits 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 as held in RACHAEL YEWANDE ADESHINA V. BAC ELECTRICAL COMPANY LTD & ANOR (2007) ALL FWLR (PT. 369) 1279. The Appellant gave evidence to the effect that he was in physical possession of the land in dispute and had built on same before the 1st Respondent herein (see P. 88 and 89 of records). The Appellant relied on CHIEF OLAYIWOLA AFOLABI V. MICHEAL K. OGUNLOWO & 2 ORS (2008) ALL FWLR (PT. 429) 537 and PETER OJOH V. OWUALA KAMALU & 3 ORS (2006) ALL FWLR (PT. 287) 978. The Appellant submits firstly, that the 1st Respondent never questioned the validity of the title issued to the Appellant

and the trial Court avoided any comment as to the validity or otherwise of the Appellant’s title. Secondly, the Appellant tendered Exhibits B5 and B6 which were received in evidence and were not challenged by the 1st Respondent which also raise the presumption that the Appellant is owner in exclusive possession of the portion of land covered by them. Cited SHOGO V. ADEBAYO (2000) 14 NWLR (PT. 686) 121. The Appellant states that the trial Judge was wrong in law to have held that the Appellant has trespassed on to the land in question.

ISSUE SIX
The Appellant argued that Exhibits B5 and B6 tendered in evidence before the Court below were not referred to in the judgment even though these documents clearly passed the tests laid down in DABO V. ADBULAHI (2005) ALL FWLR (PT. 255) 1039. The Appellant reproduced the testimony of the 2nd Respondent and submit that the 1st Respondent made an inaccurate description of the land he claimed and this evidence the trial Judge glossed over. The Appellant submits that the trial Judge did not put the evidence of the two parties on an imaginary scale to determine the weight of evidence but embarked on pick and

choose of evidence and it therefore occasioned a miscarriage of justice.

ISSUE SEVEN
The Appellant submits that he filed a counterclaim and the 1st Respondent failed to file a defence as expected of him and where no defence is filed, the facts averred to in the counterclaim would be regarded as admitted as held in ADMIRAL MIKE AKHIGBE (RTD) & 3 ORS V. PAULOSA (NIG) LTD & ANOR (2008) ALL FWLR (PT. 423) 1412. The Appellant further submits that the Certificate of Occupancy tendered and admitted in evidence as Exhibit “B5/1 and B6/1 are two adjacent plots of land with common beacons sharing the disputed land between them. It is trite that the possession of a certificate of occupancy by the Appellant is conclusive evidence of possession and entitlement which can only be dislodged by a superior title. The Appellant states that the trial Judge was wrong in holding that the Appellant has not proved his counterclaim and urge the Court to resolve issue seven in his favour.

ISSUE EIGHT
The Appellant pleaded and tendered documents of title which were not challenged by the 1st Respondent, however, the evidence of PW1 and PW2 as to when the

1st Respondent bought the land and built a foundation are contradictory. PW2 said the 1st Respondent bought the land in 2002 while the PW1 said it was 2004. Also, Exhibit A showed 25th June, 2004 while the recitals said the agreement was made pursuant to letter of administration dated 3rd July, 2004. These contradictions bring the question of the authenticity and reliability of this document. The Appellant submits that the 1st Respondent’s proof of ownership is Exhibit A and no more while the Appellant did not only tender the title to the land Exhibits B5 and B6 but had his evidence collaborated by 2nd Respondent whose evidence was unchallenged.

1ST RESPONDENT’S SUBMISSION
ISSUE ONE
The 1st Respondent argued that he proved his case as required by law and as such the trial Court was right in entering judgment in his favour. The 1st Respondent restated the principle of standard of proof in civil case and state that he has discharged the burden. The 1st Respondent also argued that the evidence, pleading and oral testimonies were never controverted nor challenged and remained firm even under cross examination, which framed the mind of

the trial Court to rely on them, citing IYERE V. B.F.F.M. (2009) 37 NSCQR 290 and D’ALBERTO LTD V. AKINTILO (2003) 9 NWLR (PT. 824) 49. The 1st Respondent submits that he was the first to acquire the land and took possession of it in June, 2004 while the Appellant alleged that he acquired it in September, 2005 (See Page 39 to 42 and 56 to 61 of records). The 1st Respondent submits further that it is the duty of the trial Court to evaluate evidence and once that is done, the Appellate Court cannot interfere as held in ANYEGWU V. ONUCHE (2009) 37 NSCQR 109 and TUKUR V. UBA (2012) ALL FWLR (PT. 562) 1624. The 1st Respondent states that the pleadings and evidence of the Appellant herein were self contradictory, for instance, paragraph 4 of the Appellant’s statement of defence states that the disputed land was assigned to him by one Mathew Ogbu while paragraph 7 avers that the disputed land on which the 1st Respondent had laid his foundation was the access road. The implication of contradictory evidence is that no Court of law can rely on such especially when the contradiction is a material one, relied on OSUNU V. STATE (2012) ALL FWLR (PT. 650) 1226. The

1st Respondent avers that the evidence of the Appellant on oath was largely unpleaded (see Page 87-94 of the Records) and it is trite that evidence without pleaded facts goes to no issue as held in BUHARI V. OBASANJO (2005) 1 CNQLR 162. The trial Court was right in rejecting such an abandoned pleadings and evidence not supported by pleadings. Also the 1st Respondent asserts that from the pleadings of the parties there is nothing to show that the identity of the land was an issue and if the Appellant intended that the identity of the plot to be an issue, he would have done so by his pleadings and not through cross-examination as any facts extracted under cross examination which was and is not pleaded, goes to no issue as held in KEYAMO V. FOLORUNSHO (2011) ALL FWLR (PT. 576) 473. And also the submission of counsel cannot take the place of pleadings or legal proof as held in FUBARA V. INEC (2010) ALL FWLR (PT. 544) 176 and ADUA V. ESSIEN (2010) ALL FWLR (PT. 535) 359.

The 1st Respondent further submitted that the trial Court was right in holding that Exhibit A was and is not a registrable instrument within Benue State so far as the relevant laws are

concerned. The 1st Respondent reproduced the provision of Section 4 of the Land (Instrument Preparation) Law, Laws of Benue State, 2004 and submitted that there is that nothing in the above legislation prohibiting the admissibility of Exhibit A. Also what should agitate the mind of the Appellant is the issue of registration which is regulated by Section 15(2) of the Land Registration Law (cap 88) Laws of Benue State, 2004 and Section 33(d) of the Law which gives the Governor powers to make regulations, exempting from the provisions of this law any class of instruments. Exhibit A under reference is not a registrable instrument and there is no provision prohibiting its admissibility in evidence. According to the 1st Respondent, the Appellant has erroneously placed reliance on judicial authorities decided from States with different legislations from Benue State and has misinterpreted and misapplied the provision of the law on the issue raised and the 1st Respondent urged the Court to discountenance and dismiss the submissions by the Appellant on this issue and to hold Exhibit A was properly admitted and properly acted upon by the trial Court.

The 1st Respondent contends that there is nothing on the Records of the lower Court to show that, the two certificates of occupancies tendered by the Appellant were in existence before the 1st Respondent acquired his land. However, the evidence of the 1st Respondent shows that he bought his plot of lands and took possession and it was after the 1st Respondent acquired his plot that the Appellant came and acquired his two plots and he obtained Certificate of Occupancy for both which he tendered in evidence. Also, the 1st Respondent gave evidence that after he acquired his plot of land, he brought his friend Mr. Danjuma to also acquire his own through Exhibit B before the Appellant appeared on the scene. All these facts were not denied by the Appellant. Continuing, the 1st Respondent avers that nothing on the face or substance of the two Certificates of Occupancies to show that they covered the 1st Respondent’s land which is in the middle and the Certificates of Occupancies are showing two independent vendors from whom the Appellant acquired his plot of land. Assuming but not conceding that the Appellant’s two Certificates of Occupancies covered 1st

Respondent’s land, the question one would ask is: (1) Why did the Appellant not process one Certificate of Occupancy to cover the entire land; and (2) Which of the two Certificates of Occupancy covers 1st Respondent’s land? The 1st Respondent also avers that the truth still remains that the 1st Respondent’s land is distinct from the Appellant’s land and because the 1st Respondent refused to sell or part with his land, the Appellant trespassed upon and commenced erecting a fence across the same to merge his two plots separated by the 1st Respondent’s plots. Also, assuming without conceding, even if the Certificate of Occupancy of the Appellant covers the 1st Respondent’s land, it would still be submitted that a Certificate of Occupancy is only a prima facie evidence of title but not conclusive evidence of title and would collapse in the face of an earlier valid evidence of Customary or equitable title as held in OLUSANYA V. OSIBAMOWO (2012) ALL FWLR (PT. 650) 1375 and OKUNOWO V. MOLAJO (2011) ALL FWLR (PT. 590) 1386.

Furthermore, 1st Respondent submits that the Appellants argument on the concession of the 2nd Defendant

to the 1st Respondent’s case cannot form basis of the Appellant’s appeal because he is not representing the 2nd Defendant and it is trite that judgment based on concession of parties can only be appealed against with the leave of the Court which the Appellant has not obtained nor has he obtained the 2nd Defendant’s authority to act on his behalf. The 1st Respondent urge the Court to discountenance the submission of the Appellant as he lack locus to complain. Also, the 1st Respondent avers that the 2nd, 3rd and 4th Defendants did not appeal against the judgment of the trial Court meaning that they are satisfied with the outcome of the judgment of the lower Court and the judgment is binding on them. Finally, the 1st Respondent asserted that he has proved his case better than the Appellant as required by the law in civil cases which standard of proof is on the balance of probability. The 1st Respondent re-affirms the judgment of the lower Court and urge the Court to dismiss appeal for being baseless, frivolous and unmeritorious.

ISSUE TWO
The 1st Respondent avers that the trial Court was right in holding that a case of trespass was

made against the Appellant and was also right in awarding N300,000.00 (Three Hundred Thousand Naira) Only as general damages against Appellant for trespass. The 1st Respondent submits that by the evidence at page 3-6, 67-72, 84-86 of the record it clearly shows that the Appellant after making unsuccessful efforts to get the 1st Respondent to sell his plot of land to him, decided unilaterally to trespass on the 1st Respondent’s plot of land and commenced construction of a parameter fence on the same land. This much was not denied by the Appellant nor was the same contradicted under cross-examination. Thus, the trial Court had no discretion but to act upon the same as conclusive evidence of trespass occasioned by the Appellant herein against the 1st Respondent. The 1st Respondent argued that at the time the Appellant trespassed on the 1st Respondent’s land, the 1st Respondent was already in possession of his plot of land, he referred the Court to pages 3-6 of the Records and that it was not challenged. That the 1st Respondent’s case at the lower Court is for the protection of his possessory right against any intruder including the Appellant

herein. The 1st Respondent further argued that the trial Court was right to decide the case in his favour and to also award N300,000.00 as damages. He cited OMOTAYO V. CO-PERATIVE ASSCOIATION (2010) ALL FLWR (PT. 537) 630 and YAKUBU V. IMPRESIT PLC (2011) ALL FWLR (PT. 598) 840.

The 1st Respondent urge the Court to uphold his arguments and submissions and to affirm the judgment of the lower Court and dismiss this appeal with cost in his favour.

3RD RESPONDENT’S SUBMISSION
ISSUE ONE
The 3rd Respondent reproduced the testimonies of the Appellant and 3rd Respondent at Pages 87 to 89 to submit that the Appellant in his pleadings and evidence before the trial Court made the identity of the land in dispute an issue. Again, the 3rd Respondent reproduced paragraph 11 of the 2nd and 3rd Defendants’ statement of defence where they averred that they are ready to reimburse the 1st Respondent the money received from him. The 3rd Respondent also reproduced DW2 and DW3 testimonies (See P. 92 and 231 of the Records) and submits that the burden of proving the certainty of land in dispute was squarely on 1st Respondent to entitle him for a

declaration of title of the land in dispute. Relied on IBUKUNLE PHILIPS & 3 ORS V. AYINLA AKINOLA & 3 ORS (2008) ALL FWLR (PT. 1728) 1736. It is trite that the duty to identify the land in dispute with particularity arises only where the issue relating thereto had been raised by the Defendant’s statements of defence as held ADESHINA V. BAC ELECTRICAL COMPANY LTD (2007) ALL FWLR (PT. 369) 1273. The 3rd Respondent argued that the 1st Respondent failed to identify the land in dispute even when the Appellant, 2nd and 3rd Defendants raised it as an issue as such the 1st Respondent is not entitled to relief 24(a) of his statement of claim. Cited KODILINYE V. MBANEFO ODU (1935) 2 WACS 366 and UDEGBE V. NWOKAFOR (1963) 1 ALL NWLR 417. The trial Court’s judgment on this issue is therefore based on wrong foundation and bound to fail. The 3rd Respondent urge the Court to hold so and to resolve issue one in favour of the 3rd Respondent as the 1st Respondent failed to identify the land he claimed.

ISSUE TWO
The 3rd Respondent reproduced paragraph 6 of the statement of claim of the 1st Respondent at page 3 and 68 of the Records and the holding

of the trial Court at page 62 of record to submit that by Section 15(2) of the Land Instrument (Preparation) Laws of Northern Nigeria applicable to Benue State, it makes it mandatory for all instruments that conveys title to land to another, be stamped and registered and an unregistered document affecting land must be pleaded before being admissible in evidence. And if such document is not pleaded, a trial Judge upon application made to it, must strike out paragraphs of pleadings where such unregistered document is pleaded. The 3rd Respondent relied on PASTOR J. A. AKINDURO V. ALH. IDRIS ALAYA (2007) ALL FWLR 1653. According to the 3rd Respondent, Exhibit A being the purchase agreement breached Section 15(2) of the Land Instrument (Preparation) Laws of Northern Nigeria applicable to Benue State and therefore inadmissible to prove title. The 3rd Respondent reproduced the holding of the trial Court on Exhibit A and cited OGBIMI V. NIGER CONSTRUCTION COMPANY LIMITED (2006) ALL FWLR (PT. 317) 390. Therefore, the 3rd Respondent urge the Court to set aside the admission of Exhibit A by the lower Court as it was wrongly pleaded and admitted by the trial Judge.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The 3rd Respondent submits that the 1st Respondent has no credible evidence to base his claim of ownership of the land and PW1 only gave evidence of being a witness to the making of Exhibit A. It is trite that the trial Judge relied on inadmissible evidence to give judgment in favour of the 1st Respondent, the judgment is therefore perverse, as Exhibit A was tendered for the purpose of proving title and not payment of money. Furthermore, the 3rd Respondent avers that Exhibit A being registrable instrument must be registered before it becomes admissible and also urge the Court to resolve issue two in favour of the 3rd Respondent.

ISSUE THREE
The 3rd Respondent restated the principle of trespass to land as held in ADELAJA V. FANOIKI (1990) 2 NWLR (PT. 131) 137 SC; EZE V. OBIEFUNA (1995) 6 NWLR (PT. 404) 639; IMONA-RUSSEL V. NIGER CONSTRUCTION LTD (1987) 3 NWLR (PT. 60) 289 SC; AJIKANLE V. YUSUF (2008) 9 WRN 33; REG. TRUSTEES, R.C.C.G. V. BANKOLE (2011) 1 NWLR (PT. 1227) 40; UKPANAH V. AYAYA (2011) 1 NWLR (PT. 1227) 61; IGE V. FAGBOHUN (2001) 10 NWLR (PT. 721) 468; YUSUF V. AKINDIPE (2008) 8 NWLR (PT. 669) 376. The 3rd Respondent argued that the

Appellant as DW1 tendered Exhibit B5 and B6 being Certificates of Occupancy they were not challenged and as such the Appellant is presumed to have exclusive possession of the portions of land covered by such certificates. The 3rd Respondent submits that a person who cannot prove to have been in possession of a defined and ascertained area of land cannot claim to have had dominion over any specific land to the exclusion of any other person for right thereto, he cannot claim earlier possession of such land than any other person who is able to prove possession of an unknown area, cited EKPECHI V. OWHONDA (1998) 3 NWLR (PT. 543) 618; OLALEYE V. TRUSTEES OF ECWA (2011) 2 NWLR (PT. 1230) 1. The 3rd Respondent reproduced DW1 and 2nd Respondent testimonies under cross examination at pages 229 and 231 and submits that the 1st Respondent is a trespasser who entered the Appellant’s land and destroyed his fence. Therefore, it was wrong for the trial Court to award damages of N300,000.00 as general damages for the 1st Respondent. The 3rd Respondent cited LION BANK PLC & ORS V. MR. JOSEPH AMAIKOM (2008) ALL FWLR (PT. 417) 85 where the condition for the award for

damages was well stated. According to the 3rd Respondent, it was wrong for the trial Court to award damages for trespass to land without giving any reason as to how it was arrived at, he relied on CHIEF OLAYIWOLA AFOLABI V. MICHAEL K. OGUNLOWO & 2 ORS (2008) ALL FLWR (PT. 429) 538 and urge the Court to resolve issue three in his favour.

ISSUE FOUR
The 3rd Respondent reproduced Order 19 Rule 1 and 2(1) of the Benue State High Court (Civil Procedure Rules) 2007 to submit that admission of Exhibit A is against the maker and not any other party in the proceedings. According to the 3rd Respondent, from the Record of the Court, the 2nd Defendant did file his statement of defence but made no admission of the 1st Respondent’s claim, he later filed a motion for concession, allegedly admitting the 1st Respondent’s claim but the motion was later struck out. The 3rd Respondent avers that a declaration of title is not granted on admissions in pleadings but the Court must be satisfied with evidence adduced, relied on OKEDARE V. ADEBARA (1994) 6 SCNJ 254 and also states that a plaintiff seeking declaration of title must succeed on the strength of

his case and not the weakness of the Defendant’s case, cited IMAH V. OKOGBE (1993) 12 SCNJ 57; KODILINYE V. ODU 2 WACA 336 and ALH. MORIAMO ADESANYA V. OTUEWU & ORS (1993) 1 SCNJ 77. Furthermore, the 3rd Respondent states that the 1st Respondent dumped Exhibit A on the trial Court and there was no opportunity to cross examine him on that in the witness box and this Honourable Court cannot rely on Exhibit A for its decision, cited ACTION CONGRESS OF NIGERIA V. LAMIDO (2012) ALL FWLR (PT. 630) 1316. The 3rd Respondent urge the Court to resolve issue four in his favour and to hold that the 2nd Defendant did not concede to the 1st Respondent’s claim.

ISSUE FIVE
The 3rd Respondent submits that trespass to land consist of unjustifiable intrusion by one person upon the land in possession of another as held in OGUNBIYI V. ADEWUMI (1988) 5 NWLR (PT 144); OBIOHA V. DURU (1994) 10 SCNJ 48 and OKAGBUE V. ROMAINE (1982) 5 SC 133. The 3rd Respondent argued that the Appellant tendered Exhibit B5 and B6 before the trial Court which covered the piece of land in dispute. Also, after being granted Certificate of Occupancy, the Appellant built a fence

on the said land and the 2nd Respondent was not part of the vendors who sold the land mentioned in Exhibit A to the 1st Respondent. The 3rd Respondent reproduced the 2nd Respondent’s testimony at page 231 and DW1’s testimony at 128 and also cited PETER OJOH V. OWUALA KAMALU & 3 ORS (2006) ALL FWLR (PT. 287) 978. The 3rd Respondent submits that by virtue of Exhibits B5 and B6 and 2nd Respondent’s testimony, it is clear that the Appellant cannot be in unlawful possession of the land, rather, it is the 1st Respondent that is a trespasser, even his evidence of payment and the foundation he built cannot grant him title. Also that Exhibits B5 and B6 were never challenged. The 3rd Respondent urge the Court to resolve issue five in his favour.

ISSUE SIX
The 3rd Respondent submits that the Appellant tendered Exhibits B5 and B6 and the trial Court made no reference to it in its judgment. The 3rd Respondent made reference to the testimony of the 2nd Respondent and states that the 1st Respondent’s evidence was at variance with his pleadings especially Exhibit A. The 3rd Respondent submits further that the trial Court was duty bound to

give judgment in all the issues raised in Court and also, the final address of Counsel as failure to carry out its duty occasioned a miscarriage of justice to the parties especially the 3rd Respondent. The 3rd Respondent urge the Court to set aside the judgment and to resolve issue six in favour of the 3rd Respondent.

ISSUE SEVEN
The 3rd Respondent argued that the Appellant filed a counterclaim and the 1st Respondent failed to file a defence as expected of him and in paragraph 7(a) of the Counterclaim the Appellant sought for the sum of One Million Naira as damages and also tendered Exhibit B5 and B6 but the 1st Respondent failed to respond. The 3rd Respondent defined a Certificate of Occupancy as held in INWELEGBU V. EZEANI (1999) 12 NWLR (PT. 530) 266; ADESHINA V. BAC ELECTRICAL COMPANY LTD (2007) ALL FWLR (PT. 369) 1279. According to the 3rd Respondent, the Appellant tendered Exhibit B5 and B6 while the 1st Respondent tendered Exhibit A from the bar and DW2 was in possession when the 1st Respondent unlawfully entered the land and the 2nd Respondent has laid to rest the ownership of the plot in dispute by stating that it belong to the Appellant.

The 3rd Respondent restated 2nd Respondent’s testimony at page 231. The 3rd Respondent also restated the principle of proving title to land as held in IDUNDUN V. OKUMAGBA (1976) 1 NMLR 200 SC 227; NWOSU V. UDEAJA (1990) 1 NWLR (PT. 125) 188; DJUKPAN V. OROVUYOVBE (1967) 1 ALL NLR 134; EDOKPOLO & CO. V. OHENHEN (1994) 7 – 8 SCNJ (PT. 11) 500. Finally, the 3rd Respondent states that it is the duty of the Plaintiff suing for damages for trespass to prove that he was in exclusive possession of the land in dispute as held in ADELAJA V. FANOIKI (1990) 2 NWLR 131 and UMESIE V. ONUAGULUCHI (1995) 12 SCNJ 119. The 3rd Respondent urge the Court to hold that the Appellant has proved his counterclaim by Exhibits B5 and B6 and 2nd Respondent testimony.

ISSUE EIGHT
The 3rd Respondent contends that the Appellant tendered Exhibits B5 and B6 while the 1st Respondent tendered Exhibit A as his sole evidence. From the testimony of the 2nd Respondent, he made it clear that the land in dispute is different from the one they sold to the 1st Respondent. Also, PW1 and PW2 gave contradictory evidence and Exhibit A is dated 25/6/2004 while the letter of

administration stated in the said recital is dated 3/7/2004. This means the vendors had no title to pass to the 1st Respondent since it was sold before DW3 was granted letters of administration. The 3rd Respondent urge the Court not to attach any weight to Exhibit A and to resolve issue eight in his favour.

THE APPELLANT’S REPLY
The Appellant submits that the 1st Respondent relied on the Purchase Agreements (Exhibit A5) between the 1st Respondent, Matthew Ogaba Ogbu, Paul Adotse Ogbu, Morerino David Ogbu, and Innocent Oche Ogbu (See P. 39-42 of the Records) which remained unchallenged, uncontroverted and uncontradicted. However, the Appellant challenged and controverted the case of the 1st Respondent with material evidence. The Appellant submits that the purchase agreements (Exhibit A5) is a bundle of contradictions, for instance, Exhibit A5 was executed on behalf of the Administrators of the Estate of late Chief M. C. Ogbu on the 3rd of July, 2004 and the land was purportedly assigned to the 1st Respondent on 25th June, 2004, which was before Letters of Administration were granted. The Administrators of the Estate of Late Chief M. C. Ogbu had

neither the capacity nor legal authority to deal with the said Estate before 3rd July, 2004. Accordingly, Exhibit A did not confer any title on the 1st Respondent. The 1st Respondent relied on IYERE V. B.F.F.M. (2009) 37 NSCQR 290; CAPPA & D’ALBERTO LTD V. AKINTILO (2003) 9 NWLR (PT. 824) 46; ANYEGWU V. ONUCHE (2009) 37 NSCQR 109 and TUKUR V. UBA (2012) ALL FWLR (PT. 562) 1624 which are inapplicable in the given circumstances. The 1st Respondent merely relied on the general principles of law but not the ratio of those cases which did not assist the 1st Respondent’s case, for instance, the dictum in the case of OSUNU V. THE STATE (2012) ALL FWLR (PT. 650) 1226 relates to contradictions in criminal and not civil trials and therefore inapplicable. The Appellant urge the Court to discountenance the submission of the 1st Respondent.

The Appellant argued that the 1st Respondent contends that the identity of land was in issue and this was also not borne out by the evidence on record. The 1st Respondent claimed his title through the 2nd and 3rd Defendant, the 2nd Defendant did not testify while the 3rd Defendant testified in favour of the Appellant

and states that the 1st Respondent’s land was not clearly demarcated even the schedule contained in the agreement did not contained the supposed description of the property sold to the 1st Respondent. The Certificate of Occupancy referred to in the schedule was the one granted to Chief M. C. Ogbu and which covered the whole family land, part of which was exercised and sold to the 1st Respondent. The Appellant submits that the 1st Respondent failed to identify with certainty the land he is claiming and the law is settled that for a Plaintiff to succeed in an action for declaration of title to land, he has the burden of proving with certainty the identity of the said land. Having failed to identify the land with certainty, his claim is bound to fail. Also the Appellant restated the cases cited by the 1st Respondent KEYAMO V. FOLORUNSHO (2011) ALL FWLR (PT. 572) 473; FUBURA V. INEC (2010) ALL FWLR (PT. 544) 179 and ADUA V. ESSIEN (2010) ALL FWLR (PT. 535) 359 and submit that they are of no assistance to the case of the 1st Respondent. However, the Appellant states that he has identified the land and its size and location in his pleadings.

On the issue of registrable instrument, the Appellant submits that the 1st Respondent argued that Exhibit A was properly admitted because it is not a registrable instrument and also argued that the issue is regulated by Section 4 of the Land (Instrument Preparation) Law, Laws of Benue State, 2004 and also placed reliance on Land Registration Law (Cap. 88) Laws of Benue State, 2004 and the case of CHIEF OWOOLA LANLEHIN V. KOLA JAMES (1985) NWLR (PT. 6) 262. The Appellant states that if Exhibit A is a receipt or evidence of payment of money transaction is admissible in evidence and such a document cannot be used to prove title as held in AYORINDE V. FAYOYON (2001) FWLR (PT. 75) 483; ERO V. TINUBU (2012) LPLER 7869. The Appellant contends that paragraph 4.24 of the 1st Respondent’s brief shows concession and he cannot turn around to complain again that the two certificates of occupancies are not conclusive evidence of the Appellant’s title over the land. The 1st Respondent’s reliance on OLUSANYA V. OSIBAMOWO (2012) ALL FWLR (PT. 650) 1375 and OKUNOWO V. MOLAJO (2011) ALL FWLR (PT 590) 1386 is misplaced and should be discountenanced.

Furthermore, the Appellant argued that the 1st Respondent raised the issue of the propriety or otherwise of the award of Three Hundred Thousand Naira N300,000.00) as damages for trespass against the Appellant, however, the Appellant argued that the trial Court awarded general damages without regard to laid down principles as enshrined in the decided cases including S.T.B. LTD V. ANUMNU (2008) ALL FWLR (PT. 399) 405; U.B.N LTD V. ODUSOTE BOOKSTORES LTD (1995) NWLR (PT. 421) 558; ELF NIG LTD V. SILLO (1994) 6 NWLR (PT. 445) 657. The ratio in these cases support Appellant’s contention that it is not enough for the Court below to have simply awarded damages for trespass against the Appellant without giving any reason as to how it arrived at what is awarded.

RESOLUTION OF MAIN APPEAL
Upon a careful consideration of the Notice of Appeal, the Record of Appeal and the briefs of respective parties, the Court shall adopt the issues distilled by the Appellant for determination in this appeal. Doing so is appropriate and to enable the Court determine all areas of complaint against the judgment appealed against. I shall do so in the order the issues were argued.

The Appellant under issue one contends that the 1st Respondent did not identify and prove the exact location of the land in dispute and therefore there is uncertainty. It is settled that for a declaration to title to land, the Claimant is duty bound to identify and prove the identity of the land he claims with certainty. See OTANMA V. YOUDUBAGHA (2006) LPELR-2821 (SC) where the apex Court held that:
“The law is well settled that in an action for declaration of title to land, the onus is on the plaintiff to establish with certainty, the identity of the land in dispute to which his claim relates. In a claim for declaration of title to land, the first and foremost duty on the claimant is to describe the land in dispute with such reasonable degree of certainty and precision that its identity will no longer be in doubt. In other words, the land must be identified positively and without any ambiguity. See Baruwa v. Ogunshola (1938) 4 WACA 159; Udofia v. Afia (1940) 6 WACA 216; Epi v. Aigbedion (1972) 1 All NLR (Pt. 2) 370; Awote v. Owodunni (No. 2) (1987) 2 NWLR (Pt. 57) 366; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192. Per MUSDAPHER, J.S.C

See also the case of BELLO V. FAYOSE & ORS (1999) LPELR-766(SC); OFFODILE V. OFFODILE & ORS (2019) LPELR-47851(SC) and ADIO V. KOLO & ANOR (2018) LPELR-45963(CA).

Circumstances where the identity of land in dispute would be an issue is in a case arising not from the evidence of parties but from the pleadings of the Defendants, see the holding of the apex Court in the case of GBADAMOSI V DAIRO (2007) LPELR-1315 (SC) thus:
“It is also now settled law that requires no citation of any authority, that the identity of land in a land dispute will only be in issue if and only if the defendant in his statement of defence makes it one. If he disputes specifically either the area or the location or the features shown in the plaintiff’s plan, then the identity of the land becomes an issue to be tried.” Per MUSDAPHER, J.S.C.

Looking at the Appellant’s pleadings at pages 9-11 of the Record of Appeal, I do not see where the Appellant challenged the identity of the land in dispute. Instead I find at paragraph 3 and 4 of the same pleadings the following averment:
3.“That 1st defendant denials paragraph 4,5, and 6 and in reply avers as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That the heirs to Chief M.C. Ogbu had commissioned a private surveyor to demarcate the plot of land covered by Certificate of Occupancy No. BP 2489 into smaller plot for purposes of sharing among the heirs. Plaintiff will at the trial tender the photocopy of the plan/Survey by one Alex Agbo.
b. That 1st defendant avers further in reply to paragraph 6 of the claim. That based on the survey the various plot caved out of plot No. BP 2489 was on the 30th of September, 2003 shared among the heirs.
c. That the area of land in dispute was shared to Mathew Ogbu and of part which falls into plot of Oche Ogbu. 1st defendant will at the trial tender the family resolution of Chief M. C. Ogbu held on the 30th of September, 2003.
4. 1st Defendant denial paragraphs 7, 8 and 9 of the claim and avers in reply that Mathew Ogbu had assigned the area in dispute to him and the Sale Agreement dated 20th of August, 2004. 1st defendant will at the trial tender the followings:
a. Sale Agreement and an Assignment between Mathew Ogaba Ogbu and Adjaero Chiemezie shall be tendered and relied upon at the trial.
b. 1st defendant avers further that based on

the transaction (a) above 1st defendant was issued a Certificate of Occupancy No. BND 6484. 1st defendant will at the trial tender and rely on certified true copy of the C of O at the trial.”

It is obvious therefore that the Appellant who was the first Defendant knew the land in dispute and joined issues with the 1st Respondent to such details that there cannot be any uncertainty with the identity of the land the 1st Respondent claims in the suit and over which he seeks declaration of title. Since the issue of identity was not raised in the pleadings, it cannot be raised by way of evidence. Issues are fought on pleadings and not evidence, pleadings not supported by evidence are deemed abandoned while evidence not founded or at variance with pleadings go to no issue, see NJOKU & ORS V. EME & ORS (1973) LPELR-2039(SC) where the Supreme Court held thus:
“It is trite law that parties are bound by their pleadings and that any evidence which is at variance with the averment in the pleadings goes to no issue and should be disregarded by the Court. It is enough to refer to a recent decision of this Court which lays down in detail, the same

principle of law: Aniemeka Emegokwue v. James Okadigbo SC. 302/1971, delivered on 19th April, 1973. “The reason for this rigid rule of pleading and of the evidence has been clearly stated by this Court in George and Ors v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at p. 77 as follows: “The fairness of a trial can be tested by the maxim audi alterem partem. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues; but the cardinal point is the avoidance of surprise…”Per IBEKWE, J.S.C.

It is in the light of the above that I find that there was no dispute as to the identity of the land in dispute and I resolve issue one against the Appellant and in favour of the 1st Respondent.

Issue Two as formulated by the Appellant seeks to know if Exhibit A is a registrable

instrument, the Court below having found that it was not a registrable instrument. Exhibit A is a purchase agreement evidencing payment of money and a contractual relationship between the 1st Respondent and 2nd and 3rd Defendants/Respondents. The Court below found at pages 262 of the record held thus:
“Exhibit A is a purchase agreement evidencing contractual relationship between the plaintiff and 2nd and 3rd Defendants letting the former into possession of the land and cannot, in my view be expected to be registered before it would be admissible in evidence, as it is admissible to prove payment coupled with possession and gives the plaintiff an equitable interest in the land enforceable by specific performance-see Adda v Jassen (2004) All FWLR (Pt. 230) 1011 at 1043 (paragraph A-B) following the Supreme Court case of Anyabunsi V Ugwunze (1995) 7 SCNJ 55; see also Olowolaramo v Umechukwu (2003) FWLR (Pt. 183)109 at 122 to 125.”

An instrument required to be registered is provided for by Sections 2 and 15 of the Land Instruments (Preparation) Law of Northern Nigeria which was reenacted as the Benue State land (Instrument preparation) Laws, Laws of

Benue State, 2004 and Section 4 states thus:
“4. Every person who shall draw or prepare any instrument shall endorse or cause to be endorsed thereon his name and address.”
15. No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3.’’

The basis of the objection taken by the Appellant is that unless an instrument is registered, the law says it cannot be admitted in evidence nor be used to the advantage of the party tendering same. It is interesting that the law disallowed the use of such unregistered document in evidence. The question or position of the law as regards the admissibility of an unregistered registrable instrument has been answered by the apex Court per EKO, JSC eloquently settled it in the case of in ANAGBADO V FARUK (2018) LPLER-44909(SC) thusly:
“The Appellant had made an issue of whether Exhibit P2, the letter of offer issued to the Respondent, was a registrable document which must be previously registered under the Kaduna State Lands Registration Law Cap 85 Laws of Kaduna State,

1991 before it would be admissible in evidence. Section 15 of the said Law, Cap, 85, provides: No instruments shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3. The purport of this law, as argued by the Appellant, is that a registrable land instrument, which though is a material and relevant piece of evidence under the Evidence Act, 2011 which has not been so registered under the Law Cap 85 is not admissible in evidence in any Court of Law. The argument neither impresses nor convinces me. The Law Cap. 85 of Kaduna State (Section 15 thereof), in so far as it purports to render inadmissible any material and relevant piece of evidence that is admissible in evidence under the Evidence Act, 2011, is to that extent inconsistent with the Evidence Act, enacted by the National Assembly pursuant to the powers vested in it by Section 4(2) of the Constitution and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution. Evidence is Item 23 in the Exclusive Legislative List. I am of the firm view that, in view of

Section 4(5) of the Constitution read with Section 4(2) and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, in the event of Section 15 of the Law Cap. 85 of Kaduna State being in conflict or inconsistent with any provisions of the Evidence Act, the provisions of the Evidence Act shall prevail. The sum total of all I am saying, on this issue, is that Section 15 of the Kaduna State Law Cap 85 cannot render inadmissible Exhibit P2 which evidence is material, relevant and admissible in evidence under the Evidence Act, 2011. A piece of evidence admissible in evidence under the Evidence Act cannot be rendered inadmissible in evidence by any law enacted by the House of Assembly of any State.”

The Section relied upon by the Appellant is in pari materia with the Kaduna State law and which had hitherto been interpreted in several authorities which form the basis of the Appellant’s contention, however even at that there is also a dimension overlooked by the Appellant and which had been admittedly distinguished and settled by authorities too that the law is well settled that an unregistered instrument is not

admissible to prove title but is certainly admissible to prove payment of money and coupled with possession may give right to an equitable interest enforceable by specific performance, see ANYABUNSI V UGWUNZE (1995) LPLER-503(SC); NSIEGBE & ANOR V MGBEMENA & ANOR (2007) LPER-2065(SC) and recently in the case of MOHAMMED V FARMERS SUPPLY CO. (KDS) LTD (2019) LPELR-49388(SC) where ABBA-AJI, JSC held:
“It is trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the lessor, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase of money. See Per KAZEEM, JSC in REGISTERED TRUSTEES OF THE APOSTOLIC FAITH MISSION & ANOR V. JAMES & ANOR (1987) LPELR-2946(SC). The

Respondent cannot feign that it is a bonafide purchaser for value without notice!”
The reiterated position is that a registrable instrument that has not been registered is admissible to prove equitable interest. Furthermore, admissibility is determined primarily by relevancy and pleading. Exhibit A was found relevant in the determination of the claim therefore the trial Court was right in admitting same in evidence.

Having declared the Section that barred the admissibility of an unregistered instrument as encroaching into the subject area of Evidence by a State Law which is contrary to the clear provision of the Constitution of the Federal Republic of Nigeria, the arguments of the Appellant cannot hold and the Court below cannot be faulted when it admitted Exhibit A and relied on it because it is admissible evidence duly pleaded and therefore, the second issue must be resolved against the Appellant. Moreso, the 1st Respondent contended that the Governor had exempted such document from the applicability of registration requirements.

The authorities relied upon by the Appellant reflected the position before the recent decision of the apex Court on

the issue, it has therefore been overtaken by the declaration that the Land (Instrument Preparation) Law cannot determine what is evidence with regards to land matters being a State Law. The said authorities are not relevant and must be discountenanced.

The second leg of Appellant’s argument is that there was no evidence, the Court below having found that Exhibit A is credible evidence and relied on same to recognize the equitable interest of the 1st Respondent coupled with possession is cogent evidence to support the findings of the Court below. Furthermore, the witness to Exhibit A also gave evidence for the 1st Respondent concerning purchase of the land and the Court believed their evidence.

Issue Three and Five challenge the award of damages in the sum of N300,000.00 (Three Hundred Thousand Naira) against the Appellant for trespass. Issue Five questions the findings that trespass was committed by the Appellant. Both issues can conveniently be resolved together. It is settled that a claim in trespass is indeed rooted in possession as held in the case of DOKUBO & ANOR V. OMONI & ORS (1999) LPELR-957(SC) where the apex Court held

thus:
“…A claim in trespass is based entirely on possession of the land, not necessarily on ownership of the land. Thus, as was stated by this Court in Christopher Okolo v. Eunice Uzoka (1978) 4 S.C. 77: “It is the law and this Court has so held times without number that trespass to land is actionable at the suit of the person in possession of the land. The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title.” See also Oluwi v. Eniola (1967) N.M.L.R 339 and Ogunbambi v. Abowaba 13 W.A.C.A 222 at 223. “In other words, a claim in trespass is based entirely on possession of the land not necessarily on ownership of the land. See Amori v. Akande (1975) 2 W.A.C.A 143: Oyetona v. Ajani (1959 – 60) W.N.L.R 213; Awooner Renner v. Annan 2 W.A.C.A 258 and Wallis v. Hands (1893) 2 Ch. 75.” Per ONU, J.S.C
See also OLONADE & ANOR V. SOWEMIMO (2014) LPELR-22914(SC) where the Supreme Court held thusly:
“…an action in trespass is based on possession and is maintainable against all except the person with a better title. As a follow up is that there cannot be concurrent possession by two

parties claiming adversely against each other, since a resolution either way must be made.”Per PETER-ODILI, J.S.C.
And the following cases of EZEKWESILI & ORS V. AGBAPUONWU & ORS (2003) LPELR-1204(SC); EZEANI V. ANIUNOH (2012) LPELR-19940(CA) and ADEYEMO V. ADEYEMO & ORS (2010) LPELR-3621(CA).

The arguments of the Appellant are largely founded on Exhibits B5 and B6 which are Certificates of Occupancy issued to the Appellant over two separate pieces of land. It is trite that the trial Court found that the two Certificates- Exhibit B5 and B6 are for other pieces of land and none is in respect of the land in which title was given to the 1st Respondent. These Exhibits came into existence after Exhibit A and after a certain Danjuma had also acquired another plot through the first Respondent. It was also on record that the Appellant made moves to acquire the land bought by the 1st Respondent which was refused and he went on to threaten to acquire by force from the 1st Respondent. It was also established in evidence that the two Exhibits sandwiched the 1st Respondent’s land because if they were a seamless piece of land and if the titles were processed at

the same time, the title would have been one and not two separate titles. If the argument of the Appellant were to be believed, which of the Exhibits B5 or B6 covers the 1st Respondent’s land? This was not made out by the Appellant or his witnesses. I agree with the Court below that Exhibit B5 and B6 cover separate plots of land and not the land acquired by the 1st Respondent, the said Exhibits are not relevant here.
From the evaluation of evidence carried out by the Court below, I do not find it necessary to interfere.

Furthermore, a Certificate of Occupancy on its own is merely a prima facie evidence of title which is rebuttable and therefore not a conclusive evidence of title, see ORIANZI V. A.G. RIVERS STATE & ORS (2017) LPELR-41737(SC) where Per GALINJE, J.S.C has this to say:
“… In Olohunde & Anor V Adeyoju (2000) 79 LRCN 2297 at 2328 paras D – E, this Court had this to say:- “A certificate of statutory occupancy cannot be said to be conclusive evidence of any right, interest or valid title to land in favour of the grantee. It is at best, only a prima facie evidence of such right, interest or title without more and may in

appropriate cases be effectively challenged and rendered invalid, null and void.” See Kyari v Alkali & 3 Ors (2001) 5 SCNJ 421.” Per GALINJE, J.S.C.
See also the case of ADOLE V. GWAR (2008) LPELR-189(SC) where the apex Court held thus:
“A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void. See Mohamoud J. Lababedi v. Lagos Metal Industries (Nig.) Ltd. (1973) NSCC. 1 at 6.” Per ONU, J.S.C
And the case of OTUKPO V. JOHN & ANOR (2012) LPELR-25053(SC) where the Supreme Court also held thusly:
“…a certificate of occupancy, as has been held by this Court in a number of cases, is a prima facie evidence of title or possession which is, however not a conclusive proof of title to the land it relates – See Registered Trustees Mission vs. Mrs. E. I. Olowoleni (1990) 6 NWLR (Pt.158) 514.” Per ONNOGHEN, J.S.C.

The 1st Respondent having established possession and presence on the land before the Appellant attempted to build a fence joining his two separate plots across the 1st Respondent’s land amounted to trespass and is actionable. The trial Judge at pages 263 of the record found as follows:
“The 1st, 3rd, and 4th defendants’ case did not impress me as issues relating to plaintiff being the first in time to buy land in the area from the 2nd -3rd defendants before the two subsequent purchases by the 1st defendant, the gradual encroachment of the 1st defendant into part of the plaintiffs portion of land erecting a fence after his attempt to buy the piece of land from the plaintiff failed were not cross examined upon by the 1st, 3rd and 4th defendants, while the plaintiff was in the witness box, consequently by following AGBONIFO V AIWEREOBA (1988) 1 NWLR (Pt.70) 325 at 342 to 343, the said piece of evidence remained unmoved and are hereby accepted in proof of plaintiff’s case against the 1st to 3rd defendants.”

Trespass is simply the intrusion into another’s land, above excerpt from the judgment appealed against clearly established trespass and my

learned brother ABIRU, JCA described trespass elaborately in the case of SHETTIMA V GHULUZE (2018) LPELR-46316(CA) as follows:
“Thus, with the finding that the Respondent proved a better title than the Appellant to the land in dispute, he is deemed to be in possession of the land and everyone on the land without his permission is deemed a trespasser ab initio. The Respondent could thus sue the Appellant for trespass. Now, trespass, in relation to property law, generally means to interfere with another person’s property; to enter unlawfully upon another person’s property or to encroach or intrude on another person’s property. It is a word of very large significance and signification, particularly in the determination of the specific acts of trespass on the part of the trespasser – Onagoruwa Vs Adeniji (1993) 5 NWLR (Pt 293) 317. It means an unjustified intrusion or interference with possession of land – Ogunbiyi Vs Adewunmi (1988) 5 NWLR (Pt 93) 215, Attorney General, Bendel State vs Aideyan (1989) 4 NWLR (Pt 118) 646, Ogundipe Vs Attorney General, Kwara State (1993) 8 NWLR (Pt 313) 558. The slightest disturbance to the possession of land by a person who

cannot show a better right to possession constitutes trespass in law – Solomon Vs Mogaji (1982) 11 SC 1, Eze vs Obiefuna (1995) 6 NWLR (Pt 404) 639, Omoyinmi vs Olaniyan (2000) 4 NWLR (Pt 651) 38. The Appellant admitted both in his pleadings and in his evidence that he interfered with the Respondent’s right to possession of the land in dispute. The Appellant pleaded and testified that he did so because he believed he owned the land in dispute. It is trite that where a party alleges acts of possession carried out on a piece of land in dispute in support of a claim of title to the land and he fails to prove the title pleaded and claimed, the acts of the party on the land cease to be acts of possession and they automatically become acts of trespass and will sustain a finding of trespass against the party – Da Costa Vs Ikomi (1968) All NLR 394, Idundun Vs Okumagba (1976) NMLR 200, Fasoro vs Beyioku (1988) 2 NWLR (Pt 76) 263, Adebayo vs Ighodalo (1996) 5 NWLR (Pt 450) 507. No intent to commit trespass is required so long as the act resulting in the trespass is violational and the resulting trespass is direct and immediate. It does not depend on the intention of

trespasser, nor can he plead ignorance as to the true owner or that he thought the land belonged to him. It is enough that the right of the owner was invaded -Dantsoho Vs Mohammed (2003) 6 NWLR (Pt 817) 457, Fagunwa vs Adibi (2004) 17 NWLR (Pt 903) 544, Yusuff vs Keinsi (2005) 13 NWLR (Pt 943) 554. The admitted acts of the Appellant in preventing the Respondent from using the land in dispute, without more, amounted to trespass and he was liable in trespass. The complaints of the Counsel to the Appellant on the findings of the lower Court in trespass were thus also not well founded.” Per ABIRU, J.C.A.

The trial Judge having found that the 1st Respondent was in possession before the intrusion by the Appellant amounted to trespass and awarded N300,000.00 as damages. As observed above, I do not find legal basis to interfere with the findings so made on trespass. The act of attempting to build a fence across 1st Respondent’s land is clear trespass and provocative to say the least. To further reinforce the findings made by the trial Judge, the two Certificates of Occupancy – Exhibits B5 and B6 are for different pieces of land which border the land in

dispute and if that is so, the question of anybody proving a better title cannot arise because the two titles are not in contention. The land in dispute is not covered by a Certificate of Occupancy so even when the equities are equal, priority is given to the first in time. The Appellant does not have equitable nor statutory title over the land in dispute and his incursion must amount to trespass. Instead, the 1st Respondent has equitable interest coupled with possession and have even commenced construction on the land. The Appellant cannot escape liability for unlawful interference with 1st Respondent’s possession.

On the quantum of damages to award, it is purely at the discretion of the trial Judge and unless it is shown that it breached certain guidelines, an Appellate Court shall not interfere, see OYENEYIN & ANOR V AKINKUGBE & ANOR (2010) LPELR-2875(SC) where the apex Court held thusly:
“Generally, the trial Court has discretion as to the quantum of damages it would award in a claim of damages for trespass. The assessment does not depend on any legal rules – but the discretion of Court is however limited by usual caution or prudence

and remoteness of damage when considering its award of damages. An appellate Court will not interfere with an award of damages by a trial Court unless in situations which include (a) Where the Court acted under wrong principles of law (b) Where the Court acted in disregard of applicable principles of law (c) Where the Court acted in misapprehension of facts (d) Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award (e) Where injustice will result if the appellate Court does not act (f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages. U.B.N. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) pg. 558, Solanke v. Ajibola (1969) 1 NMLR pg. 45, Ziks Press Ltd. v. Alvan Ikoku (1951) 13 WACA 188, Thompson v. Adefope (1961) 1 ANLR Pg. 322, ACB Ltd v. Apugo (2001) 5 NWLR (pt.707) pg. 653.” Per ADEKEYE, J.S.C.
Generally, the law is that in an action for trespass, a successful Plaintiff will be entitled to an award of nominal damages where no actual loss or damage is caused, where an actual loss or damage has however, resulted

from the trespass, the Plaintiff is entitled to recover an amount of damages sufficient to compensate for the loss he has suffered, see UMUNNA VS. OKWURAIWE (1978) 6-7 SC 1. Damages therefore follow a finding that trespass was committed. Once awarded, the Appellate Court is circumspect in interfering with the award and will do so only if certain conditions are established.

The Appellant failed to establish any of the conditions under which the Court can interfere in the award of damages made upon the finding that trespass was established against the Appellant, this Court cannot interfere. In any case, the sum awarded is not excessive. I resolve these issues against the Appellant.

On Issue Four, the trial Judge made a finding that the 2nd Defendant conceded to the claim filed by the 1st Respondent as Plaintiff. A joint statement of defence was initially filed for them and he filed a witness statement on oath but was not adopted because he did not testify. The Appellant contended that the trial Judge used the failure of 2nd Defendant to contest the claim as admission and he alleged it was liken to using an admission against another party, in this case

the first Defendant to the claim now second Respondent. See Page 263 of the record where the trial Judge said:
“The 2nd defendant on his own part conceded the case in a written concession filed on 20.10.08.”

Let’s start from the beginning, issues are joined by pleadings and the party who fails to adduce evidence in support of his pleadings is said to have abandoned pleadings, see AHMED & ORS V. REGISTERED TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH (2019) LPELR-46414(SC) where the Court held thus:
“It must be stressed that pleadings that have not been established by credible evidence are deemed abandoned. They go to no issue. See Miss Ezeanah V. Alhaji Atta (2004) 2 SCNJ 200 at 235, Newbreed Org Ltd V. Erhomosele (2006) 1984 (SC).”Per MUHAMMAD, J.S.C

Therefore, the 2nd Defendant who filed a witness statement on oath but did not adopt it has clearly abandoned his defence and has therefore conceded to the claim. The said sworn statement not adopted did not create a special position because by his failure to oppose the claim or testify, he has conceded to the claim as his pleadings are abandoned. In

any case, the Notice filed into Court by the 2nd Defendant is not his sworn statement on oath but a Notice to Admit Plaintiff’s claim, see page 200 of the record of appeal. It is a written admission of the claim against him and the other Defendants. It was duly filed and it became part of the case file which the Judge would take into account. In it, he clearly and unequivocally said that “I admit the entire content of the claim and statements on oath as a true reflection of facts leading to this dispute.” He went on to narrate how the transaction was carried out. What is an admission? Admission was defined in the case of OMISORE & ANOR V AREGBESOLA & ORS (2015) LPELR-24803(SC) as follows:
“An admission has been defined also as “a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claim in an action”. See Vockie v. General Motors Corp, Chevrolet Division D.C. Pa. 66 FRD 57, 60 (Black Dictionary, Sixth Edition of page 47) per Fabiyi, JSC (P. 25). See also Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 which defines admission further as:- “a concession or voluntary

acknowledgment made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of the adversary;” Per OGUNBIYI ,J.S.C
What the trial Judge said concerning the 2nd Defendant is exactly what admission is, a concession or voluntary acknowledgment made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of the adversary. Since the admission reinforced the case of the 1st Respondent, it was evaluated and added weight to the evidence of the 1st Respondent against the Appellant and 2nd to 3rd Respondents. I do not see how Order 19 Rule 1 of the Benue State High Court (Civil Procedure Rules) 2007 was breached. The concession was still part of the records in the case file and the Court could make use of it. However, I agree with the Appellant that admission is against self-interest and therefore against the 2nd Defendant alone. As observed above, it was in favour of the 1st Respondent and will ultimately affect the 1st Defendant at the trial Court who in any case could not defend the suit even though he

joined issues. The evidential burden was not displaced and it must weigh against him, see ODOM & ORS V. PDP & ORS (2015) LPELR-24351(SC) wherein the apex Court held thus:
“… the party who has the burden has not discharged it, the decision must be against him.” Per MUHAMMAD, J.S.C.
I find against the Appellant under issue four.

On Issue Six and Seven, the Appellant challenged the purported failure of the trial Judge to pronounce on Exhibits B5 and B6 which are Statutory Certificates of Occupancy over separate pieces of land not in dispute and not contested by the 1st Respondent as Plaintiff. Issues are joined in pleadings and it is from the averments that issues to be resolved are distilled, see OLANUDU & ANOR V. TEMIYE & ANOR (2001) LPELR-6989(CA) where the Court held:
“It is settled that it is from the state of pleadings that the Court will decipher whether the parties have joined issue or issues for its determination. Where therefore the plaintiff makes a claim and the defendant denies it in the pleadings, that constitutes a dispute between the parties in law. See Akintola & Anor v. Solano (supra) at page 623.

It is also trite that at the hearing of such an action, only the averments in the statement of claim and the statement of defence survive and it is on these averments that issue or issues will be joined and evidence led.” Per IBIYEYE, J.C.A.

Issues in this appeal at the trial Court were joined on the piece of land being claimed by the 1st Respondent who was the Plaintiff. One piece of land cannot have two valid statutory titles in the form of Exhibits B5 and B6. Therefore, in determining who established a valid title, the said two Certificates of Occupancy cannot come into contemplation. The Appellant did not tender a title document in respect of the land in dispute so the trial Judge cannot be faulted for ignoring what is not relevant to the determination of the contest before him. Agreed that a Court should determine all issues properly raised by parties but it is not an open cheque for parties to derail the Court into issues not relevant to the main question. The claim was for declaration of title to a piece of land measuring 100ft by 50ft, injunction, setting aside any purported sale of the land and damages for trespass. A piece of land not claimed

by the Plaintiff cannot be in issue. And the claim in the counter claim is for the same piece of land, it is logical that when the Plaintiff’s claim succeeds, the counterclaim cannot succeed at the same time, and here particularly because the said Exhibits are not relevant and not issued over a single plot of land. The Appellant did not also point to one of them as the title over the land in dispute. Where the question to be determined is the same, the Court will not consider the counter claim separately, See ADEROUNMU V OLOWU (2000) LPELR-141(SC) which held as follows:
“Where common questions determinative of a claim and a counter-claim arise in a case, the trial Court is not expected to consider the same questions separately in relation to the counter-claim.” Per AYOOLA, J.S.C
In this appeal, the common question was who was entitled to a declaration of title to the piece of land and once determined in the main claim, the Court had no duty in repeating itself under the counter claim. See EBIBOKEFIE & ORS V TUME & ORS (2018) LPELR-45620(CA) where my brother, SANGA, JCA held as follows:
“Having considered my holding above,

particularly on issue 1 where I pronounced that the learned trial Judge was right in granting to the 1st and 2nd Respondents a declaration of title to the land in dispute. Since it is the same land the appellants are laying claim to in their counter claim, I cannot give title to the 1st and 2nd Respondents of the land in dispute and turn round to uphold the appellants counter claim. In UWAGBOE OSAGIE & ORS V IGBINOSUN OBAZEE & ORS (2013) LPELR – 21994 (CA) this Court while pronouncing on whether a counter-claim would fail where the main claim succeeds held, per LOKULO-SODIPE JSC on pages 44 – 45 paragraphs F – E as follows: – “As already stated by me, Appellants are very correct regarding their analysis of a counter-claim. The Appellants would however appear to have seriously misapprehended the manner of a trial in an action with a counter claim to the extent that they would appear to believe that evidence adduced in a case with a counter claim is compartmentalized or categorized into “evidence in the main suit” and “evidence in the counter claim” as it were. All that is required in a trial on pleadings is for the trial Court to identify the matters on

which parties have joined issues and call for resolution and used the evidence adduced before it on the said issues… to resolve the issues in dispute…” The evidence adduced before the lower Court in respect of the main claim is the same evidence used in the resolution of the counter-claim since the land in dispute is the same. The evidence adduced in the main claim is not separate from the evidence used in the counter claim. They are not compartmentalized into evidence for the main claim and evidence for counter claim. Therefore, since the evidence adduced in the main claim is upheld then it follows that the counter-claim (though a separate claim that can stand on its own) is left bereft of evidence to support it. Therefore, it is my finding on this issue that the learned trial Judge was right in dismissing the Appellants’ counter claim.”

The evidence adduced by the parties is what was evaluated to determine both claims and as observed earlier, the main claim cannot succeed and the counter claim be said to succeed at the same time, it is contradictory. The trial Judge having granted the reliefs claimed by the Plaintiff meant he had nothing more for the

Appellant under the counterclaim. Exhibits B5 and B6 are titles over different and adjacent pieces of land and not title over the land in dispute.

It is trite that the evidence of 3rd Defendant couldn’t have been considered in isolation, it must be evaluated by the trial Judge and the Appellant is not challenging evaluation of evidence of the 3rd Defendant, therefore, the Court is bound by the evaluation dutifully done by the trial Court. The Court below did not believe the 3rd Defendant and even went further to say they failed to cross examine the 1st Respondent as Plaintiff on relevant facts which were deemed admitted. What the 3rd Defendant says later cannot alter what had been established and admitted by the same party before the trial Court.
I resolve these two issues against the Appellant.

Issue Eight questions the evaluation of the evidence of PW1, PW2 and Exhibits A, B5 and B6. The Appellant observed some discrepancies with Exhibit A forgetting that Exhibit A was tendered without any objection and not tendered as proof of title but evidence of payment in respect of the purchase of land and considering that consideration in respect of

the land had passed onto the 2nd and 3rd Respondent who collected the purchase price and that created an equitable title in favour of the 1st Respondent and coupled with possession, he has better title and made a case for declaration of title. Let me repeat again that there cannot be two certificates of occupancy over a single plot of land and the Appellant who wants the Court to accept Exhibits B5 and B6 as title over the single plot did not explain how two titles were issued the same day over the single plot. He could not dislodge evidence that he came onto the land after the 1st Respondent herein had been on the land. He did not cross examine the 1st Respondent on relevant facts which the Court below accepted and relied on to arrive at judgment. To also situate Exhibit A under the 5 ways of proving title, the 1st Respondent can be said to have fallen under possession and exercising acts of ownership.

On the claim that the land was sold before the letter of administration was issued, the simple answer is that the Appellant lacks the locus to question or challenge the sale, he is not a member of the family and since the family is not contesting the

sale, the Appellant cannot do so on their behalf without due authorization. In any case, a letter of administration is legal authority to deal with the land towards a legal title. The 1st Respondent acquired an equitable title from all the parties who inherited the assets of their father. Such can be perfected subsequently and it will take one of those who sold to challenge the 1st Respondent and not the Appellant. I accept the evaluation and ascription of value given to the evidence adduced before the trial Court upon which judgment was entered and I do not find it perverse and I cannot disturb same. An Appellate Court can only interfere where there was failure to evaluate or the evaluation led to a perverse decision, see BELLO V. FRN (2018) LPELR-44465(SC) where the apex Court held thusly:
“This law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence.” Per BAGE, J.S.C.
See also the case of NYESOM V. PETERSIDE & ORS (2016) LPELR-40036(SC) where the Supreme Court held thus:
“… It is also trite that this Court will not

interfere unless it is shown that the findings are perverse, or not based on a proper and dispassionate appraisal of the evidence, or that there is an error either of law or fact, which has occasioned a miscarriage of justice. See: Ogoala v. The State (1991) 2 NWLR (Pt.175) 509: Saleh v. B.O.N. Ltd. (2006) 6 NWLR (Pt.976) 316 @ 329 – 330 H-C; Agbaje v. Fashola (2008) 6 NWLR (pt.1082) 90 @ 153 B – E.” Per KEKERE-EKUN, J.S.C
And the case of MINI LODGE LTD & ANOR V. NGEI & ANOR (2009) LPELR-1877(SC); OGUNDALU V. MACJOB (2015) LPELR-24458(SC) and OGUNBODEDE V. FRN (2018) LPELR-44883(CA).

Before I conclude, I observed that the 2nd Respondent abandoned his role as a Respondent and argued as an Appellant even though a cross Appellant. There cannot be two Appellants opposing themselves in an appeal. He could have just kept quiet since he has nothing to urge in support of the appeal or simply to concede to the appeal. He also repeated arguments of the Appellant in a Respondent’s Brief. That is not allowed. Having abandoned his role, his arguments go to nothing as a Respondent in the main appeal and are hereby discountenanced, see AKOGWU V. STATE

(2013) LPELR-22849 (CA) and AGI V. PDP & ORS (2016) LPELR-42578 (SC) which held thus:
“Addedly, this Court has stated in so many cases that the traditional role of a respondent is to defend the judgment appealed against. The rules accommodate the respondent’s desire to depart from this traditional role to attack the judgment in any way only by filing a cross appeal. In the case at hand, 1st respondent whose counsel has withdrawn its brief, having not filed a cross appeal cannot be obliged to depart from the judgment by conceding the appeal. See Eliochin (Nig) Ltd & Ors v. Victor Ngozi Mbadiwe (1986) 1 NWLR (Pt 14) 47 and Adefulu v Oyesile (1989) 5 NWLR (Pt 122) 377.” Per RHODES-VIVOUR, J.S.C

In the light of above, I resolve this issue against the Appellant.

Having resolved all issues against the Appellant, this appeal is bereft of merit and bound to fail. The appeal is hereby dismissed for lacking in merit. The judgment of HON. JUSTICE J.S. IKYEGH (as he then was, now JCA) delivered on the 24th February, 2009 is hereby affirmed.
I hereby award cost of N100,000.00 (One Hundred Thousand Naira) only in favour of the 1st

Respondent and against the Appellant.

CROSS APPEAL
This Cross Appeal is against the decision of the High Court of Benue State sitting in Makurdi delivered by HON. JUSTICE J. S. IKYEGH on the 24th February, 2009 wherein the lower Court entered judgment in favour of the 1st Respondent/Cross Respondent with damages in the sum of Three Hundred Thousand (N300,000.00) Naira Only. The 2nd Respondent/Cross Appellant dissatisfied with the judgment, filed an Amended Notice of Cross Appeal dated 26th September, 2018 setting out 8 grounds of Cross Appeal.

Issues were joined in the pleadings and the matter went to full trial with parties calling witnesses in proof of their respective pleading. After full consideration, the Court below granted the claim of the 1st Respondent/Cross Respondent, thus the appeal.

The 2nd Respondent/Cross Appellant’s brief settled by OKPALE SUNDAY OJIKPA, ESQ., is dated 30th day of April, 2017, filed on the 19th February, 2017, but deemed on the 8th day of February, 2021 and it distilled 4 issues for determination as follows:
i. Whether the 1st Respondent/Cross Respondent by his pleading and the evidence adduced

at the trial made out a case to entitle him to the judgment of the lower Court as per the claim before the Court (Ground 1,3,4 and 5).
ii. Whether in claim for declaration of title to land where the Defendants have filed a statement of defence denying the claim of the Plaintiff and testify in line with the defence unchallenged, the lower Court was right to hold that the 2nd Defendant has conceded the case of the Plaintiff/1st Respondent. (Ground 2)
iii. Whether the learned Judge was right to hold that Exhibit A is admissible to prove payment of money which couples with possession gives the Plaintiff/1st Respondent/Cross Respondent an equitable interest enforceable by specific performance when such is not the case made before the Court below and the said Exhibit A was not registered in accordance with the law (Ground 6).
iv. In the circumstance of this case where the 1st Respondent/Cross Respondent predicated his entitlement to the disputed land on the sales agreement that was neither tendered in evidence through and/or identified by the 1st Respondent at the trial and Exhibit A, tendered from the bar was not registered, whether the learned trial

Judge was right to enter judgment for the 1st Respondent/Cross-Respondent on evidence which efficacy is dependent on prove of title to the disputed land (Ground 7 and 8).

The 1st Respondent/Cross Respondent’s Brief settled by O. N. AYIA, ESQ., filed on the 5th March, 2019, deemed on the 8th day of February, 2021 and adopted issues for determination formulated by Cross Appellant.

THE CROSS APPELLANT’S SUBMISSION
ISSUE ONE AND THREE
The Cross Appellant submits that there are five ways by which a Claimant to a declaration of title to land can prove his entitlement to the declaration as held in ARUM V. NWOBODO (2013) ALL FWLR (PT. 68) 870 and JIBO V. GAMBO (2013) ALL FWLR (PT. 689) 1219. The Cross Appellant reproduced paragraph 6 of the 1st Respondent/Cross Respondent’s statement of claim and submits that, for a Claimant seeking declaration of title to succeed on production of the title documents, such documents must be authenticated and emanates from proper custody, relied on AFRICAN COTTON LTD V. YAKARA (2008) ALL FWLR (PT. 402) 1192; ROMAINE V. ROMAINE (1992) 4 NWLR (PT. 288) 650; AGBOOLA V. U.B.A PLC (2011) ALL FWLR (PT.

574) 74 and BELLO V. SANDA (2012) ALL FWLR (PT. 636) 462. The Cross Appellant avers that the 1st Respondent/Cross Respondent’s case was predicated on the agreement he allegedly entered into with the 2nd and 3rd Defendants on the 25th day of June, 2004 and the trial Court found for the 1st Respondent/Cross Respondent on same. The Cross Appellant reproduced the holding of the trial Court on the agreement (Exhibit A) and submits that based on the pleading and evidence before the Court below, it was wrong for the trial Court to enter judgment for the 1st Respondent/Cross Respondent based on Exhibit A without carrying out the inquiry and satisfying itself that it meets the requirements of law.

Continuing, the Cross Appellant submits that Exhibit A was tendered from the Bar by the 1st Respondent/Cross Respondent’s Counsel and Exhibit A being an instrument which needs to be registered before it could be admitted in evidence, having not been registered ought not to have been admitted in evidence. Thus, the trial Court having admitted it, ought to expunged same from the record when writing the judgment and not to rely on same to enter judgment for the 1st

Respondent/Cross Respondent, relied on AKINDURO V. ALAYA (2007) ALL FWLR (PT. 381) 1653; BROSSETTE MANUFACTURING NIG LTD V. OLA ILEMONOLA LTD (2007) ALL FWLR (PT.379) and OGBIMI V. NIGER CONSTRUCTION LTD (2006) ALL FWLR (PT. 217) 390 to support his submission. The Cross Appellant also submits that it is trite that before the trial Court can rely on any document, it must be pleaded and evidence must be tendered to tie it to the case. This can be done only when the witness is in the witness box, the document tendered and not otherwise. This is so as to enable the opponent cross-examine on the document, relied on ALL NIGERIA PEOPLE’S PARTY V. ARGUNGU (2009) ALL FWLR (PT. 467) 94 and ACTION CONGRESS OF NIGEIRA V. LAMIDO (2012) ALL FWLR (PT. 630) 1316 to support same. The Cross Appellant urge the Court to hold that Exhibit A having not been tendered through the 1st Respondent/Cross Respondent or his witness nor was same brought to their attention for identification for the purpose of relating it to his case, the trial Court was wrong to have relied on same to enter judgment for the 1st Respondent/Cross Respondent.

According to the Cross Appellant, the

1st Respondent/Cross Respondent in his pleading, evidence and relief before the trial Court, did not seek for specific performance, it was wrong for the trial Court to enter judgment for the 1st Respondent/Cross Respondent enforcing specific performance. The Cross Appellant reproduced paragraph 14, 17 and 18 of the Cross Appellant statement on oath and submits that he was never cross examined on those pieces of evidence that were pleaded, thus it should be taken as established facts. Citing BALOGUN V. ALLIOWE (2000) FWLR (PT.14) 2335. Continuing his argument, the Cross Appellant submits that in this instant case, there is no specific prayer for specific performance of any specific terms agreed upon by parties, so as to entitle the lower Court admit Exhibit A and to rely on same to enter judgment in favour of the 1st Respondent/Cross Respondent. According to him, assuming without conceding that the lower Court was held to have rightly admitted Exhibit A, it would still not satisfy the requirement of vesting title on the 1st Respondent/ Cross Respondent and consequently, the lower Court was wrong to have predicated its judgment on the Exhibit. The Cross

Appellant reproduced the recital part of Exhibit A and the testimony of the 1st Respondent/Cross Respondent at page 225 of records of Appeal to submit that at the time of the purported sale, the disputed land was under a letter of administration and was sold by some of the administrators before their letter of administration was issued, can it be said that they have the right to sell and to also pass valid title to the 1st Respondent/Cross Respondent?

Furthermore, the Cross Appellant argued that the Administrator(s) of an Estate of a deceased person are not the owner(s) of the Estate nor are they in possession of the Estate so as to entitle them to deal with the Estate adversely to the beneficiaries, relied on IBRAHIM V. OSUNDE (2009) ALL FWLR (PT. 465) 1667 and IBE V. IBE (2008) ALL FWLR (PT. 405) 1719. Also, the Cross Appellant avers that in the circumstance of this case whereby Exhibit A is entered into by persons who cannot vividly transfer any part of the Estate and same is indeed purportedly transferred by only two out of the four administrators who are not the owners of the property but only trustees of same for the benefit of the

beneficiaries, they are not capable of transferring title to the 1st Respondent/Cross Respondent vide Exhibit A, consequently, they pass nothing to the 1st Respondent/Cross Respondent and the 1st Respondent/Cross Respondent acquired nothing from them, relying on SANNI-OMOTOSHO V. OBIDAIRO (2014) ALL FWLR (PT. 745) 210. Finally, the Cross Appellant urge the Court to hold so, set aside the judgment of the Court below and dismiss the case of the 1st Respondent/Cross Respondent predicated on Exhibit A.

ISSUE TWO
The Cross Appellant submits that the trial Court held that the 2nd Defendant conceded to the 1st Respondent/Cross Respondent’s case, however, the Record of the Court shows that the 2nd and 3rd Defendants filed a joint statement of Defence and testified that even though they collected the sum N100,000.00 from the 1st Respondent/ Cross Respondent, they never showed him any specific plot within the large expanse of land, thus the land which the 1st Respondent/Cross Respondent is claiming does not belong to him. The Cross Appellant submits that the trial Court was wrong to hold that the 2nd Defendant conceded to the case of the 1st

Respondent/Cross Respondent even with the pleadings and evidence adduced which states otherwise. The 1st Respondent/Cross Respondent did not cross examine the Cross Appellant on this fact which is deemed admitted. The Cross Appellant avers that the concession made by the 2nd Defendant was to the effect that, they sold the disputed land to the 1st Respondent/Cross Respondent vide an agreement, which he did not attach to his pleadings and also, if Exhibit A is the agreement then it goes to no issue because the Administrators at the time they conveyed the interest on the land had no right to sell.

Furthermore, the Cross Appellant contends that no amount of concession by the 2nd Defendant at the Court below, without cogent and credible evidence from the 1st Respondent/Cross Respondent establishing his case, can entitle the 1st Respondent/Cross Respondent to the declaration of title sought and weighed on the trial Court to enter judgment for him, relied on CHIEF L. K. AJIBARE & ANOR V. JAMES AKOMOLAFE & ANOR (2011) LPELR-3948 (CA). The Cross Appellant urge the Court so hold, set aside the judgment of the Court below and dismiss the case of the 1st

Respondent/Cross Respondent.

ISSUE FOUR
The Cross Appellant argued that the 1st Respondent/Cross Respondent predicated his claim on the production of documents i.e. the agreement dated 25th day June, 2004. Relying on UWAH V. UWAH (2014) ALL FWLR (PT. 760) 1219, he submitted that 1st Respondent/Cross Respondent tendered Exhibit A (the agreement) from the bar which never afforded him the opportunity to cross examine the 1st Respondent/Cross Respondent and his witnesses on it. The Cross Appellant asserts that the documents which the 1st Respondent/Cross Respondent predicted his entitlement was not registered, even though such an unregistered document is admissible in evidence to prove the payment of money or as a receipt it is incapable of conferring title on the Claimant as held in ENEJO V. SANUSI (2008) ALL FWLR (PT. 412) 1084. The Cross Appellant reproduced the holding of the trial Court at page 262 of the Record of appeal and submitted that nowhere in the judgment of the trial Court did it hold that the 1st Respondent/Cross Respondent proved his case by the agreement as he alleged.

The Cross Appellant submitted that in a claim for declaration

of title to land, it is the duty of the Plaintiff to prove root of title and must succeed on the strength of his case and not on the weakness of the case of the defence, relied on UWAH V. UWAH (SUPRA) at 1235. He also avers that the 1st Respondent/Cross Respondent was unable to prove the root of title to the land through agreement that he pleaded, because same was not tendered in evidence and was not registered which will make it liable to be dismissed, therefore the trial Court was wrong to hold that the case of the 1st Respondent/Cross Respondent was not dislodged and to proceed to enter judgment for same. Furthermore, the Cross Appellant asserts that there are contradictions in the testimonies of the 1st Respondent/Cross Respondent’s witness, PW2 testified that the land was acquired in 2002 while the date on the agreement states 2004, while the 1st Respondent/Cross Respondent gave a different testimony, this contradiction constitutes a further dent in the root of title of the 1st Respondent/Cross Respondent. The Cross Appellant submits that it is trite that where a Claimant to a declaration of title has claimed subsequent acts of possession which are

predicated on the root of title it cannot avail the Claimant, as they constitute acts of trespass, relied AGAKA V. AYILARA (2012) ALL FWLR (PT. 608) 899. According to the Cross Appellant, the 1st Respondent/Cross Respondent was unable to prove his root of title vide the agreement he pleaded and relied upon, his evidence that he entered the land and put up a foundation thereon cannot form the basis for the lower Court’s decision to enter judgment for the 1st Respondent/Cross Respondent. The Cross Appellant urges the Court to so hold and dismiss the case of the 1st Respondent/Cross Respondent.

THE 1ST RESPONDENT/CROSS RESPONDENT’S SUBMISSION
ISSUE ONE
The 1st Respondent/Cross Respondent argued that he proved his case as required by law and as such the trial Court was right in entering judgment in his favour. The 1st Respondent/Cross Respondent restated the principle of standard of proof in civil cases and stated that he has discharge such burden. The 1st Respondent/Cross Respondent also argued that the evidence, pleading and oral testimonies were never controverted nor challenged and remained firm even under cross examination, which

frame the mind of the trial Court to rely on them, relied on IYERE V. B.F.F.M. (2009) 37 NSCQR 290 and DALBERTO LTD V. AKINTILO(2003) 9 NWLR (PT. 824) 49. The 1st Respondent/Cross Respondent submits that he was the first to acquire the land and took possession of it in June, 2004 while the Appellant/Cross Respondent alleged that he acquired the land in September, 2005 (See P. 39 to 42 and 56 to 61 of records). The 1st Respondent/Cross Respondent submits that it is the duty of the trial Court to evaluate evidence and once that is done, the Appellate Court cannot interfere as held in ANYEGWU V. ONUCHE (2009) 37 NSCQR 109 and TUKUR V. UBA (2012) ALL FWLR (PT. 562) 1624. The 1st Respondent/Cross Respondent submits that the pleaded evidence of the Cross Appellant herein was self contradictory, for instance, paragraph 4 of the Cross Appellant’s statement of defence states that the disputed land was assigned to him by one Mathew Ogbu while paragraph 7 avers that the disputed land on which the 1st Respondent/Cross Respondent had laid his foundation was an access road. The implication of contradictory evidence is that no Court of law can rely on it

especially when the contradiction is a material one, relied on OSUNU V. STATE (2012) ALL FWLR (PT. 650) 1226. The 1st Respondent/Cross Respondent avers that the evidence of the Cross Appellant on oath was largely unpleaded (see P. 87-94 of the Records) and it is trite that unpleaded evidence goes to not issue as held in BUHARI V. OBASANJO (2005) 1 NQLR 162. The trial Court was right in rejecting such abandoned pleadings and unpleaded evidence. Also the 1st Respondent/Cross Respondent asserts that from the pleadings of the parties, there is nothing to show that the identity of the land was an issue and if the Cross Appellant intended that the identity of the plot should be an issue, he would have done so by his pleadings and not through cross-examination as any facts extracted under cross examination which was and is not pleaded, goes to no issue as held in KEYAMO V. FOLORUNSHO (2011) ALL FWLR (PT. 576) 473. And also the submission of counsel cannot take the place of pleadings or legal proof as held in FUBARA V. INEC (2010) ALL FWLR (PT. 544) 176 and ADUA V. ESSIEN (2010) ALL FWLR (PT. 535) 359.

The 1st Respondent/Cross Respondent argued also that the trial

Court was right in holding that Exhibit A was and is not a registrable instrument within Benue State so far as the relevant laws are concerned. The 1st Respondent/Cross Respondent reproduced the provision of Section 4 of the Land (Instrument Preparation) Law, Laws of Benue State, 2004 and states that there is nothing in the above legislation prohibiting the admissibility of Exhibit A. Also what should agitate the mind of the Cross Appellant is the issue of registration which is regulated by Section 15(2) of the Land Registration Law (Cap 88) Laws of Benue State, 2004 and Section 33(d) of the law which gives the Governor power to make regulations exempting from the provisions of this law any class of instruments. Exhibit A under reference is not a registrable instrument and there is no provision prohibiting its admissibility in evidence. According to the 1st Respondent/Cross Respondent, the Cross Appellant has erroneously placed reliance on judicial authorities decided from States with different legislations from Benue State and has misinterpreted and misapplied the provision of the law on the issue raised and the 1st Respondent/Cross Respondent urge the Court

to discountenance and dismiss the submissions by the Cross Appellant on this issue and to hold Exhibit A as properly admitted and properly acted upon by the trial Court.

The 1st Respondent/Cross Respondent contends that there is nothing on the Records of the lower Court to show that, the two certificates of occupancy tendered by the Cross Respondent were in existence before the 1st Respondent/Cross Respondent acquired his land. However, the evidence of the 1st Respondent/Cross Respondent shows that he bought his plot of land and took possession his plot before the Appellant/Cross Respondent came and acquired his two plots which he obtained Certificates of Occupancy for both and tendered in evidence. Also as another evidence of the 1st Respondent/Cross Respondent, according to him, after he acquired his plot of land, he brought his friend Mr. Danjuma to buy and acquired his own through Exhibit B before the Appellant/Cross Respondent appeared on the scene. All these facts were not denied by the Appellant/Cross Respondent. Continuing, the 1st Respondent/Cross Respondent avers that there was nothing on the face or substance of the two Certificates of Occupancy to

show that they covered the 1st Respondent/Cross Respondent’s land which is in the middle and the Certificates of Occupancy are showing two independent vendors from whom the Cross Appellant acquired his plots of land. Assuming but not conceding that the Cross Appellant’s two Certificates of Occupancies covered 1st Respondent/Cross Respondent’s land, the question one would ask is: (1) Why did the Cross Appellant not process one Certificate of Occupancy to cover the entire land; and (2) Which of the two Certificates of Occupancy covers 1st Respondent/Cross Respondent’s land. The 1st Respondent/Cross Respondent also avers that the truth still remains that the 1st Respondent/Cross Respondent’s land is distinct from the Cross Appellant’s land and because the 1st Respondent/Cross Respondents refused to sell or part with his land, the Cross Appellant trespassed upon and commenced erecting a fence across the same to merge his two plots separated by the 1st Respondent/Cross Respondent’s plots. Also, assuming without conceding, even if the Certificate of Occupancy of the Cross Appellant covers the 1st Respondent/Cross

Respondent’s land, it would still be submitted that a Certificate of Occupancy is only a prima facie evidence of title but not conclusive evidence of title and would collapse in the face of an earlier valid evidence of Customary or equitable title as held in OLUSANYA V. OSIBANMOWU (2012) ALL FWLR (PT. 650) 1375 and OKUNOWO V. MOLAJO (2011) ALL FWLR (PT. 590) 1386.

Furthermore, 1st Respondent/Cross Respondent submits that the Cross Appellants argument on the concession of the 2nd Defendant to the 1st Respondent/Cross Respondent’s case cannot form basis of the Cross Appellant’s appeal because he is not representing the 2nd Defendant and it is trite that judgment based on concession of parties can only be appealed against with the leave of the Court which the Cross Appellant has not obtained nor has he obtained the 2nd Defendant’s authority to act on his behalf. The 1st Respondent/Cross Respondent urge the Court to discountenance the submission of the Cross Appellant as he lack locus to complain. Also, the 1st Respondent/Cross Respondent avers that the 2nd, 3rd and 4th Defendants did not appeal meaning that they are satisfied with

the outcome of the judgment of the lower Court and the judgment is binding on them. Finally, the 1st Respondent/Cross Respondent proved his case better than the Cross Appellant as required by the law in civil cases which proof is on the balance of probability. The 1st Respondent/Cross Respondent urge the Court to re-affirm the judgment of the lower Court and urge the Court to dismiss the Cross Appellant’s appeal herein as being baseless, frivolous and unmeritorious.

ISSUE TWO
The 1st Respondent/Cross Respondent argued that the lower Court was right to hold that the 2nd Defendant had conceded to the case of 1st Respondent/Cross Respondent at the lower Court. He submits that all submissions and authorities cited are misconceived and should be discountenance because the Cross Appellant is not holding brief for 2nd Defendant, thus, Cross Appellant lacks the capacity to raise an issue which bothers on the conduct of 2nd Defendant’s case at the lower Court. According to the 1st Respondent/Cross Respondent, at the lower Court each Defendant had a separate Counsel, it was not a joint representation. Along the line, the 2nd Defendant elected to

concede to the 1st Respondent/Cross Respondent’s claim which was not objected to by the Cross Appellant. Thus, the lower Court relied on it in its decision. Also, the 1st Respondent/Cross Respondent states that the issue raised herein was not canvassed by the Cross Appellant at the lower Court, thus, the leave of the Court is required before a fresh issue could be canvassed on appeal which the Cross Appellant failed to obtain, therefore, the ground and issue raised here are incompetent and ought to be struck out and dismissed. The 1st Respondent/Cross Respondent urge the Court to hold that issue two is incompetent and failed and the Cross-Appeal should be dismissed.

ISSUE THREE
The 1st Respondent/Cross Respondent avers that the issue of registration of instruments in Benue State affects only registration of deeds, Agreements and other documents of title. A sales agreement is exempted from registration in Benue State by virtue of the exemption granted by the executive Governor of Benue State under Registration of Instruments Laws of Benue State found in the 2004 Law of Benue State. The Cross Appellant has not adduced any statutory nor judicial

evidence to back up his submission that sales agreement must be registered by law to have any effect. Thus, if sale agreement does not require registration, what it then conveys in land is an equitable title which the trial Judge found as a fact that, the sales agreement together with evidence of possession by 1st Respondent/Cross Respondent which was not challenged and gives 1st Respondent/Cross Respondent an equitable right. The 1st Respondent/Cross Respondent urge this Honourable Court to dismiss issue three of the Cross Appeal.

ISSUE FOUR
The 1st Respondent/Cross Respondent submits that the trial Judge was right to rely on Exhibit A because it was tendered and admitted without any objection by the Cross Appellant and there is no law or judicial prohibition to tendering and admissibility of document from the Bar except there is an objection from the opposing parties. The 1st Respondent/Cross Respondent also submits that there was no evidence from Cross Appellant that he or his Counsel objected to the tendering/admissibility of Exhibit A from the Bar. Thus, the Cross Appellant cannot complain at this stage of appeal. The 1st Respondent/Cross Respondent

urge the Court to discountenance the submissions and authorities cited by the Cross Appellant on issue four.

Finally, the 1st Respondent/Cross Respondent urge the Court to discountenance all issues raised by the Cross Appellant and same should be dismissed with cost.

RESOLUTION OF CROSS APPEAL
Upon a careful perusal of the issues for determination as formulated by the Cross Appellant, it will be expedient to resolve all the four issues seamlessly in view of findings made in the main appeal to avoid repetition. Furthermore, most of the points in issue were raised and argued in the main appeal and having resolved them, it shall serve no useful purpose resolving them here again, a sheer waste of judicial time. I therefore adopt the resolution of all the issues that arose in the main appeal and which reoccurred in the cross appeal as part of this judgment.

The 1st Respondent/Cross Respondent also made a pertinent point and raised an objection on new issues raised by the Cross Appellant without first obtaining the leave of Court. A party is not allowed to change the nature of the case at the trial Court on appeal, and to raise and argue fresh

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issues on appeal must be done with express leave of Court, see ORGAN & ORS V. NIGERIA LIQUEFIED NATURAL GAS LTD & ANOR (2013) LPELR-20942(SC) wherein the apex Court held thusly:
“It must also be stated that generally leave of Court is required to raise a new issue on appeal. Where a party seeks to file and argue any fresh issue, being an issue that was not raised and determined by the trial Court and is being raised for the first time in the appellate Court, he must first seek and obtain leave of Court before filing such issue.” Per MUHAMMAD, J.S.C
See also the following cases SALIU V. STATE (2018) LPELR-44064(SC); OBIAKOR & ANOR V. STATE (2002) LPELR-2168(SC) and ADELAKUN V. ORUKU (2006) LPELR-7681(CA).

The issue touching on administrators and the letter of administration was not canvassed before the trial Court and being a fresh issue, the Cross Appellant required prior leave which the record of this appeal does not indicate that it was sought for and obtained. Furthermore, the issue that Exhibit A was not tendered through a witness nor identified by the 1st Respondent/Cross Respondent is also new, having not been earlier raised

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before the trial Court, the opinion of the trial Judge is necessary in the absence of leave to argue it fresh. It was the case before the trial Court as circumscribed by the statement of claim and traversed by the Defendants statement of defence, the mere mention by the trial Judge that the 1st Respondent/Cross Respondent could ask for specific performance did not mean that was the case before the trial Court. It was not canvassed by any of the parties at the trial Court and it cannot be the case in this Court. It is obvious that the Cross Appellant does not appreciate that he was first and foremost a Respondent who should defend the judgment before becoming a Cross Appellant and he cannot just wake up to rake up fresh issues and foist them on the Court for determination. It is not done that way. Just like any other appeal, grounds of appeal and issues in cross appeal must arise from the judgment appealed against.

Failure to seek leave where leave is required is fatal to the case of the party raising such issues afresh, see CHROME AIR SERVICES LTD & ORS V. FIDELITY BANK (2017) LPELR-43470(SC) where Per KEKERE-EKUN, J.S.C held thusly:

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“It is settled law that failure to obtain leave to appeal where leave is required is fatal to the appeal. The leave of Court is a condition precedent to the jurisdiction of the appellate Court to entertain the appeal. Failure to obtain leave where necessary renders the grounds of appeal requiring such leave and any issues formulated therefrom incompetent. See: Oshatoba Vs Olujitan (2000) 5 NWLR (Pt. 655) 159; Metal Construction… Vs Migliore (1990) 1 NWLR (Pt. 126) 99; Ikweki Vs Ebele (2005) 11 NWLR (Pt. 936) 397; Tilbury Construction Ltd. Vs Ogunniyi (1988) 2 NWLR (Pt. 74) 64.”
See also the following cases GARUBA & ORS V. OMOKHODION & ORS (2011) LPELR-1309(SC); UBN PLC V. SOGUNRO & ORS (2006) LPELR-3393(SC) and NWAOLISAH V. NWABUFOH (2011) LPELR-2115(SC).

Another objection raised by the 1st Respondent/Cross Respondent is the contention and arguments made on behalf of the 2nd Defendant who conceded to the claims of the 1st Respondent/Cross Respondent and did not cross appeal. The aspect of the judgment against the 2nd Defendant being consent judgment can only be appealed against by leave of Court. Furthermore, the Cross Appellant lacks the locus to

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contest the judgment on behalf of the 2nd Defendant.

In the light of the above, the new issues and the contention on behalf of the 2nd Defendant are hereby discountenanced and struck out.

Now to the issues argued in the cross appeal. The Cross Appellant restated five methods to prove title to land are indubitable and settled, the issue with regards to the tendering of Exhibit A which was admitted without any objection was to establish that payment was made to the 2nd and 3rd Cross Respondents in respect of land upon which the 1st Respondent/Cross Respondent was let into possession. The Cross Appellant admitted the issue of receiving payment from the 1st Respondent/Cross Respondent for a plot of land measuring 100ft by 50ft. It is strange that the Cross Appellant is trying to wriggle out of it. It was not evidence of title as contemplated in the plethora of cases on the five ways of proving title to land, however the law has acknowledged that a document like Exhibit A coupled with possession can inure a party a declaration of title. That can also be situated under the possession of land and acts of ownership method because 1st Respondent commenced

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construction on the land. The Cross Appellant missed the point as he argued that Exhibit A is a registrable instrument. I have resolved that issue in the main appeal that Exhibit A is merely evidence of payment and not a title document that is a registrable instrument and even if it were, the apex Court has changed the narratives concerning a registrable instrument being tendered in evidence. Exhibit A is not a document of title as the Cross Appellant wants the Court to believe, therefore all the authorities cited on this point are irrelevant. Admissibility is founded on relevancy and pleadings.

Evidence of payment coupled with possession gives equitable title that can be protected by the Court, see OHIAERI V. YUSSUF & ORS (2009) LPELR-2361(SC) where the apex Court held thus:
“The established legal principle is that where there is an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property

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and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estate created by the same vendor or his legal representative in favour of another person. This principle was examined in considerable details and applied in AYINLA v SIJUWOLA (1984) N.S.C.C. 301 at 312 the Supreme Court per Nnamani JSC expanding the principle had this to say:- “…if a party received title to land under native law and custom and entered into possession and the same vendor conveyed the land to another purchaser executing a deed of conveyance, a claim that the first party’s equitable interest was cut off by the latter bonafide purchaser would not be upheld. See AMAO V ADEBONA (1962) L.L.R 125. Further, if there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. See T.A. ORASANMI v. M. O. IDOWU (1959) 4 F.S.C 40. The emphasis is the payment of the agreed full or part of the purchase price coupled with possession by the purchaser.” Per TABAI, J.S.C.
See also the following

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ETAJATA & ORS V. OLOGBO & ANOR (2007) LPELR-1171(SC); ADESANYA V. OTUEWU & ORS (1993) LPELR-146(SC); YARO V. MANU & ANOR (2014) LPELR-24181(CA) and OBASEKI & ORS V. UKHUEGBE (2010) LEPLR-5084 (CA).

I resolved it in the main claim that a State Law cannot determine what should qualify to be tendered in evidence, the subject of evidence being a Federal item on the Exclusive Legislative list. The state cannot legislate on it.

Furthermore, a document admitted without objection cannot be objected to on appeal, see ANAGBADO V FARUK (2018) LPELR-44909(SC) where the apex Court held:
“The law is trite and well settled too, that if party fails to raise objection to the admissibility of a document tendered by an opposite party, the person/party who fails to object to the admission of such document, cannot later raise the issue of admission of the document by the trial Court at the appellate Court. See Alade vs Olukade (1976) 2 SC 183 at 119; Raimi v Akintoye (1986) 3 NWLR (pt.26) 97. The doctrine of estoppel by conduct is even applicable on that.” Per SANUSI, J.S.C.
See also OGUNTAYO V ADELAJA & ORS (2009) LPELR-2353(SC) which held:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“…It is settled that the proper time for taking objection to the admissibility of a document, is when it is sought to be tendered. See the case of Lawson Jack v. The Shell Petroleum Development Company of Nigeria Ltd. (2002) 7 SCNJ 121@134-135.” Per OGBUAGU, J.S.C.
And the case of FIRST INLAND BANK V. CRAFT 2000 LTD & ANOR (2011) LPELR- 4167 (CA) which held:
“If a party acquiesces on the admissibility of a document on the fulfillment of any precondition, he cannot be heard that the conditions precedent was not fulfilled before it was admitted. It is only documents which are inadmissible under any circumstance that can be expunged on appeal if no objection was taken on its admissibility.” Per AKA’AHS, J.S.C
Again, see the case of BLESSING V. FRN (2015) LPELR-24689 (SC) where Per OGUNBIYI, J.S.C. held thusly:
“The mere fact that the appellant admitted Exhibit 4 in evidence without objection has rendered the document admissible evidence and therefore unchallenged. It can be acted upon. It follows in the result that the procedure of admission even if irregular, has been waived and cannot now be made subject of complaint.

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See Obisi v. Chief of Naval Staff (2004) 11 NWLR (Pt. 885) P.482 where this Court held and said: “A person who acquiesced in an improper procedure without protesting is not permitted to complain on appeal.”

The 1st Respondent/Cross Respondent succeeded on the strength of his case as found by the trial Court and affirmed by the Court in the main appeal. The issue alleging that no specific portion of land was mentioned on Exhibit A and the argument that the land in dispute was not shown to the 1st Respondent/Cross Respondent, is lame because he was let into possession, and his friend also bought a portion long before the Appellant/Cross Respondent came into the scene. The 1st Respondent even started construction on the land, why then did the Cross Appellant not raise an alarm then, he waited until the Appellant showed interest in that portion of land before his denial was raised. The challenge is informed by the sudden purchase of the two adjacent plots to the one in dispute by the Appellant/Cross Respondent.

In any case, the case of the 2nd Defendant who conceded to the claim has damaged the case for the Cross Appellant, they acted as a family and a house

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divided amongst itself cannot stand. Here, the Cross Appellant can have a case only if all of them involved in the transaction deny it. Furthermore, the Cross Appellant cannot after benefiting from the transaction he consciously as a man with his full and functional faculties consented to, now turn round to contend it is illegal, that is not allowed both in equity and in law, I said so in the case of EMESPO J. CONTINENTAL & ANOR V AUTOMOTOR FRANCE S. A (2016) LPLER-42232(CA) thus:
“The Appellants are contending that the agreement is a nullity because the Respondent is not registered in Nigeria. That issue has been resolved in favour of the Respondent. If the Respondent can sue in Nigeria then it goes without saying that it can enter into an agreement. However, can the Appellants be heard to raise the issue of the Cooperation Agreement being a nullity after enjoying all the benefits of a foreign business partner releasing goods to them while they paid by installments? Definitely, the Appellants cannot benefit from the alleged illegal contract and turn round to resile from it. The law is settled that a party shall not be allowed to benefit from his own

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wrong and the Court of equity shall not allow the law to be used as an engine of fraud, it is morally despicable and reprehensible. The proposition was restated in the English case of BUSWELL v. GOODWIN (1971) 1 ALL ER 418 @ 421 thus: “The proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the Court would wish to endorse. The effect is usually that a literal meaning on the enactment is departed from where it would result in wrongful self-benefit.” The proposition above was applied in the case of SOSAN v. H.F.P. ENG. (NIG) (2003) LPELR-7232 (CA) and in the case of KENTUS CHEMICAL AND ALLIED PROJECTS LIMITED v. UNITED BANK FOR AFRICA PLC (2012) LPELR-9836(CA) the Court held that parties who voluntarily enter into a contract cannot resile from it, it held thus: “It is settled law that parties are bound by the contract they voluntarily enter into and cannot act outside the terms and conditions contained in the said contract and the Court is bound to give effect thereto… Furthermore, it is pertinent to state that, the Appellant having benefited from the contract between it and the

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Respondent cannot be allowed both in law and in equity to contend the genuineness of the Exhibit T.” The Appellants knew all along that the Respondent was not registered in Nigeria, collected goods it could not pay for and when they entered into an agreement for their own benefit of staying in business and being given a breather for payments of outstanding money, he then shouts illegality. He certainly got it wrong. This is one attitude that contributes to painting the nation black in the eyes of businessmen who would love to do business in Nigeria but are discouraged by such attitude.”

The Court had in the main appeal also settled the issues concerning the concession made by the 2nd Defendant. It is trite that he withdrew from the joint statement of defence and conceded to the claims of the 1st Respondent herein. He is entitled to take that option because they were sued individually. Even if he did not, the fact that he did not testify to contest the claim means that he admitted the claim because his pleadings without evidence is deemed abandoned. In any case, he took steps to admit the claim. The Cross Appellant cannot fight the battle of the 2nd

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Defendant, moreso, the concession is strictly against the 2nd Defendant and not the Cross Appellant who lost because his defence failed. The declaratory relief was granted upon the evidence adduced in favour of the 1st Respondent/Cross Respondent, it was not made on the basis of the concession or admission alone. Assuming the concession is even taken out of the equation, the 1st Respondent/Cross Respondent would still have succeeded because of his equitable title coupled with possession which was first in time. Any other title which is later in time cannot dislodge the equitable title coupled with possession because there is priority in creation. The judgment was not predicated on document of title and all arguments in respect of this point in issue is misdirected and must be discountenanced along with the authorities cited in support. Furthermore, the judgment in the main appeal has settled the issues with regard to why the judgment was in favour of the 1st Respondent/Cross Respondent.

On the whole, I find the Cross Appellant repeating issues he canvassed by the Appellant/Cross Respondent in the main appeal and here, proffering the same arguments, in the

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main appeal, he contended as if he is not a Respondent who had a duty to defend that judgment. A Cross Appellant is not to raise the same issues raised in the main appeal because once resolved there, they bind the Cross Appellant and the Court cannot resolve an issue one way or the other in the main appeal and turn round to reverse itself in the Cross Appeal. The issues having the same essence have been in the main appeal, I do not see the need to repeat same here. The Cross Appellant is expected to take a different direction in the cross appeal and not to reproduce the issues and argument into the main appeal.

Having resolved the issues against the Cross Appellant, the cross appeal is unmeritorious and is lacking in merit. Consequently, it is hereby dismissed. The judgment of the trial Court delivered on 24th February, 2009 by HON. JUSTICE J.S. IKYEGH (as he then was) now JCA is hereby affirmed.
Cost of N100,000.00 is hereby awarded against the Cross Appellant and in favour of the 1st Respondent/Cross Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading the draft copy of the lead Judgment

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delivered by my learned brother, HON. JUSTICE YARGATA BYENCHIT NIMPAR, JCA and I am in total agreement with his reasoning and conclusion in respect of the main Appeal.

The issue of identity of the land was placed before the Lower Court as averred by DW3 under cross-examination that the place sold to the Plaintiff (now Appellant) was different from the one in dispute. Therefore, the law is trite that there must always be the identity of the land in dispute and that proof of existence of a gift, grant or sale must be backed up by credible evidence as to identity, extent and location. Mere mention of name, or that the parties know the extent of the large area of the land is not enough. Before a declaration of title to land is granted, the land to which it relates must be identified with certainty. If it is not so ascertained, the claim must fail. See John Owhonda vs. Alphonso Chukwuemeka Ekpechi (2003) LPELR-2844 (SC) per Musdapher, JSC at page 22 paras. C-E. See also Temile vs. Awani(2001) 6 SC 164, (2001) vol.5 MJSC 32; Babatola vs. Alaworoko (2001) vol.5 MJSC 17 and Epi vs Aigbedion (1972) 10 SC 53.
The issue of identity of the land in an action

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for declaration of title to land is very fundamental and the onus is on the Plaintiff seeking the declaration to establish the precise identity of the land he is seeking the declaration. However, where the area of land in dispute is well known to the parties, the issue of proof of the identity of the land does not arise. It must be emphasized that in an action where the Plaintiff claims a declaration of title to land and fails to give the exact extent and identity of the land he is claiming, his action should be dismissed. See Alhaji Raufu Gbadamosi vs. Olaitan Dairo (2007) LPELR-1315 (SC); Ezukwu vs. Ukachukwu (2004) 17 NWLR (Pt.902) 227; Iordye vs. Ihyambe (2000) 15 NWLR (Pt. 692) 675; Udofia vs. Afia 6 WACA 216 and Arabe vs. Asanlu (1980) 5-7 SC 78.

On the issue of admissibility of evidence, there are authorities galore from both the Supreme Court and this Court to that effect that what determines the issue of admissibility of evidence is generally the relevancy of the said evidence sought to be tendered by the party. See Dr. Imoro Kubor & Anor. vs. Hon. Seriake Henry Dickson & Ors. (2012) LPELR-9817 (SC) at page 50 para. E per Onnoghen, JSC;

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(2013) 4, NWLR (Pt.1345) 534. Admissibility as one of the cornerstones of our Law of Evidence is based on relevancy. A fact in issue is admissible if it is relevant to the matter before the Court. In that respect, it is correct to say that relevancy is a requisite requirement to admissibility in our Law of the Evidence. However, what is not relevant is not admissible in evidence or a piece of evidence may be relevant and yet could by operation of law, inadmissible. See Justus Nwabuoku & Ors. vs. Francis Onwordi & Ors. (2006) LPELR-2082 (SC) at page 20, paras. C-E per Tobi, JSC; (2006) 5 SC (Pt.III), 103.
Sections 1-5 of the Evidence Act, 2011 provide as follows.-
“1. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such facts as are hereafter declared to be relevant, and of no others:
Provided that:
a) the Court may exclude evidence of facts which though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case; and
b) this section shall not enable any person to give evidence if a fact which he is

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disentitled to prove by any provision of the law for the time being in force.
2. For avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies.
Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act.
3. Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria.
4. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and place.
5. Facts which are the occasions, cause or effect, immediate or otherwise, of relevant facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.”

The learned Counsel to the Appellant submitted

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in Issue Six (6) that the Lower Court did not put the evidence of the two parties on an imaginary scale to determine the weight of the evidence but embarked on pick and choose of evidence and therefore occasioned a miscarriage of justice. Accordingly, it is noteworthy that when a complaint is against the weight of evidence, the complaint must be against the totality of the evidence adduced by the parties before the Trial Court and not against any specific issue. The complaint should be concerned with the appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence. See Engineer Emmanuel Osolu vs. Engineer Uzodinma Osolu & Ors. (2003) LPELR-2810 (SC) per Musdapher, JSC at page 16 paras. D-F; (2003) 11 NWLR (Pt.832) 608; (2003) 6 SC (Pt.1) 1; (2003) ANLR p.525 and Leyland (Nig.) Ltd. vs. Dizengoff (1990) 2 NWLR (Pt.134) 610.

Lastly, the learned Counsel to the Appellant questions evaluation of the evidence of PW1 and PW2, Exhibits “A” and “B5″ adduced before the Trial Court. Evaluation of evidence and ascription of probative value to the testimonies of Witnesses ordinarily should be the exclusive

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preserve of a Trial Court and once a Trial Court in the exercise of its function in this respect had fully gathered the totality of the evidence as adduced or elicited by the parties and their witnesses and put same on the imaginary scale of justice to determine in whose favour the balance of justice tilts before ascribing probative value and arriving at its findings of fact and coming to a logical conclusion, an Appellate Court has no business interfering with such findings and conclusion. The rationale behind this statement of the law has been emphasized in authorities too numerous to mention which is that, it is the Trial Court that had the rare/singular advantage and opportunity to hear and watch the demeanor of Witnesses as they testify which advantage or opportunity an Appellate Court that is merely seised with the Record of Appeal does not have and so is not best suitable with the function or power to assess the credibility of Witnesses and ascribe probative value to their testimonies.
The above general statement of the law notwithstanding, where a Trial Court fails or does not properly evaluate such evidence or fails so to do, then the Appellate

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Court can step into the shoes of Trial Court and re-evaluate the evidence and arrive at its findings and conclusion.

Again, once there are inconsistent and contradictory findings of the Trial Court which are not based on demeanor or credibility of Witnesses but on documentary evidence for instance, the Court of Appeal is in as good a position as the Trial Court to re-evaluate the evidence. See the locus classicus of Woluchem vs. Gudi (1981) 5 SC 291; Usman vs. The State (2014) vol.39 WRN 1 at 29 lines 30-35 per Onnoghen, JSC (as he then was) citing Atolagbe vs. Shorun (1985) NWLR (Pt.1-2) 360; Matanmi vs. Dada (2013) Vol.31 WRN 1 at 19 lines 45 (SC) citing Nwosu vs. Board of Customs & Excise (1988) 5 NWLR (Pt.93) 253 and Nwokolo vs. Nwokolo (2018) LPELR-45035 (CA). See further Obiyede vs. Access Bank Plc (2015) 17 NWLR (Pt.1489J 596; Enang vs. Adu (1981) 11-12 SC 25; Mogaji vs. Odofin (1978) 4 SC 91; Agbi vs. Ogbeh (2006) 11 NWLR (Pt.990) 65 and State vs. Ajie (2000) 11 NWLR (Pt.678) 434; Borishade vs. FRN (2012) 18 NWLR (Pt.1332) 347; Martins vs. The State (1997) 1 NWLR (Pt.418) 355 and Onuoha vs. The State (1989) 2 NWLR (Pt. 101) 23.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Apex Court held in Chief Samusideen Afolabi Ayorinde & Ors. vs. Chief Hassan Sogunro & Ors. (2012) LPELR-7808 per Rhodes-Vivour, JSC at pages 22-23, paras. E-B thus “Evaluation of evidence comes in two forms. (a) Findings of fact based on the credibility of Witnesses, and (b) Findings based on evaluation of evidence. In (a): an Appeal Court should be slow to differ from the Trial Judge. After all, it was he that saw and heard the Witnesses, he watched their demeanor and so his conclusions must be accorded some respect. But (b): an Appeal Court is in as good a position as the Trial Court to evaluate the evidence. In both (a) and (b), the conclusion of the Trial Judge should be accorded much weight except found to be perverse. Trial Courts receive evidence. That is perception. It is then the duty of the Court to weigh the evidence in the context of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation.”

On the whole, I am in complete agreement with my learned brother that the main appeal is unmeritorious and same is accordingly dismissed. I abide by the order as to costs as

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duly made in the Lead Judgment.

CROSS-APPEAL
Coming to the Cross-Appeal, the Apex Court held in Chief Imeh Albert Akpan vs. Senator Effiong Bob & Ors. (2010) LPELR-376 (SC) per Muhammad, JSC at page 100, paras. D-E thus: “A Cross-Appeal is in fact, a separate and independent Appeal and not an appendage to the main Appeal. It can be initiated by any of the parties whether as Plaintiff/Appellant/Defendant/Respondent, once he is dissatisfied with any part of the decision of the Court from which the Cross-Appeal stems.”

I am also in total agreement with my learned brother that the Cross-Appeal is clearly interwoven with or affiliated to the main Appeal. Therefore, it is unnecessary to go over the arguments of the Cross-Appellants and the Cross-Respondent as this will amount to mere tautology.

Accordingly, I also agree that the Cross-Appeal lacks merit and same is hereby also dismissed while the Judgment of the Trial High Court delivered by Hon. Justice J.S. Ikyegh (as he then was) is affirmed. I abide by the Order as to costs as made by my Learned brother.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: My learned

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brother, Yargata Byenchit Nimper, JCA., made available to me a draft copy of the lead judgment, just delivered in which the appeal was determined as lacking in merit and thereby dismissed. I totally adopt my learned brother’s sound reasoning and conclusion reached therein as mine.

Accordingly, the judgment of the trial Court delivered on 24th February, 2009 by Hon. Justice J. S. Ikyegh, J., (as he then was, now JCA) is hereby affirmed.
I award cost of N100,000.00 in favour of the 1st respondent and against the appellant.

With regards to the cross appeal, I also adopt my learned brother’s unassailable reasoning and conclusions thereon to the effect that the same lacks merit and shall be dismissed.

I too dismiss the cross appeal with costs assessed and fixed at N200,000.00 against the cross appellant and in favour of the 1st respondent/cross respondent.

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Appearances:

Chief I.K Ashiekaa SAN with him, P.N. Jooji, J.K Ude and B. B. Tavershima For Appellant(s)

Iveren Bello with him, S.H. Atume – for 1st Respondent
E.L. Okoh – for 3rd Respondent.
S.O. Okpale with him O.M. Iyokpo – for 2nd Respondent/Cross Appellant. For Respondent(s)

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